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Cohen, Harris and Cohen v. City of Philadelphia and Green

June 6, 1984

COHEN, HARRIS AND COHEN, OLGA, H/W,
v.
CITY OF PHILADELPHIA AND GREEN, WILLIAM J. MAYOR, CITY OF PHILADELPHIA AND SOLOMON, MORTON B., POLICE COMMISSIONER, CITY OF PHILADELPHIA AND CIVIL SERVICE COMMISSION CITY OF PHILADELPHIA AND D'AMATO, ANTHONY, PERSONNEL DIRECTOR, CITY OF PHILADELPHIA AND GOODE, W. WILSON, MANAGING DIRECTOR, CITY OF PHILADELPHIA; HARRIS COHEN AND OLGA, HIS WIFE, APPELLANTS



Appeal From the United States District Court For the Eastern District of Pennsylvania.

Hunter, Becker, Circuit Judges, and Hoffman,*fn* District Judge.

Author: Hunter

Opinion OF THE COURT

HUNTER Circuit Judge:

Harris Cohen, appellant,*fn1 was employed as a police officer with the City of Philadelphia for approximately seven and one half years before his dismissal on May 26, 1980 for suspected participation in a burglary. After being acquitted in a criminal trial, Cohen was reinstated without back pay. He now sues the City of Philadelphia and certain of its officers claiming that they deprived him of property without due process of law in violation of 42 U.S.C. ยงยง 1983*fn2 and 1985*fn3 (Supp. V 1981). The district court granted summary judgment in the defendants' favor and Cohen appeals. We will affirm.

I.

On May 5, 1980, while appellant was on duty, one or more police officers burglarized the Cobbs Creek Appliance Store in Philadelphia. Cohen was one of four police officers arrested and charged in connection with the burglary. Two of these officers, Klein and Ricciardi, pled guilty and furnished information to the Police Department and the District Attorney's Office in furtherance of their investigation. It was learned during the course of this investigation that Klein paid Cohen $100 following the burglary. Based upon this fact and the surrounding circumstances, the department dismissed Cohen.

Police Commissioner Soloman informed appellant in writing on May 27, 1980 that he had been discharged effective May 26, 1980 for his participation in the burglary. The Philadelphia Civil Service Regulations provide that an employee who has been discharged my appeal to the Civil Service Commission within thirty days to obtain a review of the decision. Appellant made no attempt to appeal his discharge within thirty days.

In March, 1981, Cohen was acquitted of all criminal charges. He then petitioned for and received an order from the Court of Common Pleas allowing him to file his Civil Service Commission appeal nunc pro tunc. He appealed his dismissal to the Civil Service Commission on September 3, 1981 -- a full one and one half years after his dismissal.

The Civil Service Commission heard Cohen's appeal on December 16, 1981. At that hearing, the transcript from Cohen's criminal case was submitted. Cohen testified and admitted receiving $100 from Ricciardi, but stated that the $100 was in repayment of a loan made to Klein, his former superior, shortly before the burglary. On January 8, 1982, the Civil Service Commission concluded that there was insufficient evidence to implicate Cohen in criminal activity. It determined, however, that appellant had violated a Police Department directive in making a loan to a superior. The Commission therefore ordered his reinstatement, but held that the reinstatement should be without back pay.

At that point, Cohen had the opportunity to petition for rehearing before the Civil Service Commission, and to appeal the Commission's decision to the Philadelphia Court of Common Pleas and onward through the state appellate system. He chose not to do so. Rather, Cohen brought this action in federal court pursuant to section 1983, asserting that he had been deprived of property without due process of law.

Cohen asserted in the district court an on appeal that his right to due process was violated by the failure to afford him a pre-termination hearing, and by the later failure to award him back pay upon reinstatement.*fn4 The district court concluded that Cohen has sufficient remedies in state law, and that under the rule announced in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), therefore, he had not been deprived of property without due process. We will affirm.

II.

In any section 1983 action two essential elements must be established: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt, 451 U.S. at 535. The first prong of the test is clearly met in this case: Philadelphia and the individual defendants undisputedly acted under color of state law. For the purposes of this appeal, therefore, we ...


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