The opinion of the court was delivered by: TROUTMAN
The instant action, brought pursuant to 42 U.S.C. § 1983, alleges that defendants Frank Fischl, former mayor of Allentown, Pennsylvania, and the City itself, by means of a retaliatory and defamatory campaign, caused plaintiff James Bartholomew to suffer loss of employment and employability in his field because of Bartholomew's exercise of First Amendment rights. The case was called to trial on June 19, 1984. Initially, argument was held on defendants' outstanding motion to dismiss the complaint or, in the alternative, for summary judgment. Following argument, we granted defendants' oral motion to amend their answer to include the affirmative defense of the tolling of the statute of limitations. We then took defendants' motion, which raises the time bar as well as other issues, under advisement. Subsequently, plaintiff moved the Court to reconsider its decision allowing the amendment to the answer. Now before the Court are defendants' motion to dismiss and/or for summary judgment and plaintiff's motion to reconsider our order of June 19, 1984.
The basic facts of the case are relatively straightforward, but require some historical data to make them intelligible. In 1964, the cities of Allentown and Bethlehem agreed to establish a Bi-City Health Board consisting of appointees from both cities, with each city to contribute a proportionate share of the Board's budget. Sometime later, a Bi-City Health Bureau, consisting of the merger of the Health Bureaus of Allentown and Bethlehem was established to carry out the Bi-City Health Board's announced function of protecting the health of the cities' residents. As initially constituted, the Board was to have two members appointed by Bethlehem and three by Allentown, with Bethlehem contributing 41% and Allentown 59% of the budget. (Exhibit B to plaintiff's brief in opposition to the motion for dismissal/summary judgment). By 1978, when Frank Fischl became mayor of Allentown, the Bi-City Health Board was comprised of five members appointed by Bethlehem and five members appointed by Allentown. (Deposition of James Schultz, Vol. I p. 7). Plaintiff James Bartholomew was appointed Acting Director of the Bi-City Health Bureau in 1974 by Board Chairman Harold Roth and held that position continuously until 1978 when the events culminating in the instant suit began. In his capacity as Acting Director, Bartholomew reported to the Community Development Directors of both cities, as well as to the Board, on day-to-day operations of the Bureau. (Deposition of James Schultz, Vol. I p. 8).
In late 1978, a situation arose among the cities, the Board and the Bureau regarding Bartholomew's status as Acting Director. Bartholomew and Roth were seeking to have Bartholomew appointed as permanent Director of the Bureau, an unacceptable development to then mayor Frank Fischl. (Deposition of James Schultz, Vol. I p. 16). For approximately nine months, Fischl tried by various means to block the appointment but was ultimately unsuccessful. On September 14, 1979, the Bi-City Health Board appointed James Bartholomew permanent Director of the Bi-City Health Bureau. Thereafter, Fischl and James Schultz, Allentown Community Development Director, took steps to dismantle the Bi-City Health Board and establish an Allentown Board and Bureau of Health. By December 31, 1979, both the Allentown and Bethlehem city councils had voted to abolish the Bi-City scheme and establish their own separate health agencies. (Deposition of James Schultz, Vol. I, at 47, 48).
The suit arises out of the alleged reason for the mayor's adamant opposition to Bartholomew's appointment as Director of the Bi-City Health Bureau and the methods used to attempt to block the appointment and subsequently to accomplish the demise of the Bi-City Health Board. Plaintiff contends that Mayor Fischl and, through him, the City of Allentown, sought to block his appointment and subsequently to dismantle the Bi-City Health Board in retaliation for Bartholomew's advocacy of the position that Allentown's water supply should be fluoridated. He further contends that defendants obtained the abolition of the Bi-City Board and hence his position by means of a public campaign to discredit him, ". . . including defamatory accusations against the plaintiff", (Complaint, § 14), and that, "As a result of this slanderous, libelous, defamatory campaign, Plaintiff's career in public health has been destroyed". (Amended Complaint, § 22).
Defendant Fischl contends that his actions were motivated by Bartholomew's job performance, that he neither knew of nor cared about Bartholomew's position on fluoridation, and that defendants did not initiate or participate in a retaliatory and defamatory campaign. Defendants' knowledge of and concern with plaintiff's position on the fluoridation issue, their motives in seeking plaintiff's ouster and whether or not any public pronouncements by or on behalf of defendants were defamatory are disputed questions of material fact not appropriate for disposition on a motion for summary judgment. Accordingly, insofar as those issues are raised by the defendants in the summary judgment portion of their motion, it is denied. Consequently, we are left with three issues to consider: whether plaintiff's complaint should be dismissed for failure to state a claim on which relief may be granted, (1) either because the averments of the complaint fail to meet the pleading specificity requirements for a § 1983 claim, or (2) because the action is time-barred and (3) whether, even if the latter is true, the Court should permit defendants to raise that issue now.
Sufficiency of the Complaint with respect to the City of Allentown
At the outset, the Court notes that insofar as defendants' motion to dismiss for lack of specificity concerns Frank Fischl, former mayor of Allentown, it must be denied. Our Memorandum and Order of December 21, 1981,
concluded that plaintiff had stated a claim under § 1983 as to defendant Fischl. The Court found only two deficiencies at that time, failure to allege a class-based animus to support his § 1985 claim and failure to specify the theory underlying the complaint against the City of Allentown. Plaintiff was granted leave to amend the complaint to correct those problems.
The amended complaint, filed on January 11, 1982, abandoned the § 1985 claim but added a separate count against the City in an attempt to comply with the Court's order. Defendant City of Allentown has now objected to the amended complaint as still not reaching the level of specificity required for a § 1983 action in the Third Circuit. Accordingly, we consider at this time whether plaintiff's amended complaint states a claim, i.e., whether he has specifically alleged an official policy or unofficial custom of the City violative of the Constitution and/or the laws of the United States. Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S Ct. 2018 (1978); Skrocki v. Caltabiano, 505 F. Supp. 916 (E.D. Pa. 1981); Skrocki v. Caltabiano, 511 F. Supp. 651 (E.D. Pa. 1981); Craven v. Philadelphia, No. 83-5478, slip op. (E.D. Pa. July 17, 1984).
A comparison of the allegations in the complaint and amended complaint reveals that the only statement referring to the City of Allentown in the original complaint is the allegation that the mayor "was adopting and implementing official governmental policy of the City of Allentown". (Complaint para. 4). By contrast, the amended complaint adds six paragraphs of additional allegations against the City, inter alia, naming the officials through whom "official policy" was implemented, (Amended Complaint para. 28), stating that the result of their efforts was the termination of plaintiff's position and the destruction of his career, (Amended Complaint para. 29), and that the results were obtained through false public pronouncements made pursuant to "official policy". (Amended Complaint paras. 30, 31).
Once again, however, the complaint fails to meet the specificity requirements of this Circuit. In Skrocki v. Caltabiano, supra, the Court dealt with substantially the same issue presented here. Pursuant to a motion to dismiss, we agreed that the complaint against the municipality was deficient, Skrocki I, and allowed plaintiff the opportunity to amend the complaint to ". . . identify any illegal, official borough policy the implementation of which gives rise to a cause of action under § 1983". Skrocki I at 920. In response, plaintiff alleged in an amended complaint that, ". . . defendants . . . violated his Constitutional rights by implementing a decision officially adopted and promulgated by the duly authorized officers of the defendant borough which deprived the plaintiff of his rights . . .". Skrocki II, supra, at 652. We then held that, "Plaintiff still has not identified (emphasis added) the policy which the borough officially adopted and which violated his Constitutional rights. Plaintiff's conclusory statements . . . simply do not sufficiently apprise defendant of plaintiff's claim". Id.
Similarly, in the case at bar, we cannot accept plaintiff's amended complaint as sufficient to state a claim under § 1983. Although the amended complaint has identified the actors, the means used and the results obtained, neither the Court nor the defendant can determine from it the "official policy" to which plaintiff refers. In response to the attack on the sufficiency of the claim made by the City in the instant motion, plaintiff has attempted to delineate two different policies. In his brief in opposition to the motion plaintiff states that, "Mayor Fischl and the City of Allentown had as their official policy that Allentown's water must not be fluoridated". (Plaintiff's brief at 7), and, further, that ". . . the campaign against him was official government policy of the City of Allentown". (Plaintiff's brief at 8).
Even if these alleged "policies" had been included in the complaint, neither could withstand a motion to dismiss. The Court can discern no Constitutional right to the fluoridation of a municipal water supply. It is the function of municipal officials to formulate and implement policies on such matters. Bartholomew, as an employee of the independent Bi-City Health Board whose function it was to advise City officials on health matters, could certainly disagree with the water fluoridation policy and attempt to change it. However, the City's refusal to take the Board's advice is not a Constitutional violation.
Moreover, the "retaliatory campaign" directed against the plaintiff, even if it were found to be an illegal act, is not enough to establish an unconstitutional policy in that, "a policy cannot ordinarily be inferred from a single instance of illegality". Losch v. City of Parkesburg, et al., 736 F.2d 903, 910 (3d Cir. 1984). Although in this case the allegedly defamatory and retaliatory campaign was waged against the plaintiff over a period of time and was allegedly comprised of more than one incident, it was apparently directed only against him and so can fairly be considered a "single instance". However reprehensible it may be for City officials to have engaged in a personal vendetta, if they did, their status does not convert their tortious actions against one individual into an unconstitutional policy of ...