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BENNIS v. GABLE

December 10, 1984

THOMAS F. BENNIS and ROGER J. MacLEAN
v.
CARSON GABLE, JOSEPH DADDONA and CITY OF ALLENTOWN



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 On January 16, 1982, plaintiffs Thomas F. Bennis and Roger J. MacLean, two Allentown policemen, were demoted without a hearing by Mayor Joseph S. Daddona from the rank of detective to patrolman. This lawsuit was filed under 42 U.S.C. § 1983 and § 1985. Plaintiffs allege that the demotions violated their rights under the first amendment because they were politically motivated. Plaintiffs also assert that the demotions violated the fourteenth amendment because the demotions were made without cause, they were not given the opportunity of a hearing, and because the reduction in rank and salary constituted a taking of property. Plaintiffs' final allegation is that the demotions violated state law.

 Defendants Joseph Daddona, the newly elected mayor of Allentown; Carson Gable, the newly appointed Chief of Police; and the City of Allentown have filed a motion to dismiss and a motion for summary judgment. Under Fed.R.Civ.P. 12(b)(6), I will treat this as a motion for summary judgment.

 Federal Rule of Civil Procedure 56(c) states that summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. To prevail on a motion for summary judgment, the moving party must establish the absence of a genuine issue of material fact; "for these purposes the material it lodged must be viewed in the light most favorable to the opposing party . . ." Adickes v. S.H. Kress and Co., 398 U.S. 144, 159-60, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Therefore, all reasonable doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Joe Regueira, Inc. v. American Distilling Co., 642 F.2d 826 (5th Cir. 1981). For the reasons which follow, the motion for summary judgment will be denied in part and granted in part. I find that a genuine issue of material fact does exist with regard to the first amendment claim. I will, however, dismiss the fourteenth amendment claim and the other claims as a matter of law.

 THE FACTS

 Plaintiffs Thomas F. Bennis and Roger J. MacLean both became Allentown police officers in April of 1974 after placing near the top of a group of candidates taking the Civil Service test. Bennis was promoted to the rank of detective in July of 1979, and MacLean received his promotion to detective in December of 1981.

 On or about January 14, 1982, the plaintiffs were demoted to patrolman, shortly after the election of Mayor Daddona and only nine days after the appointment of Carson Gable as Chief of Police. Mayor Daddona himself decided to demote plaintiffs. Daddona had been mayor of Allentown from 1973 to 1977, when he lost a bid for re-election. The plaintiffs had supported Daddona originally, but after a falling-out in the mid-70's, they switched their allegiance to Daddona's opposition in both the Democratic primaries and in the general election. The plaintiffs openly campaigned for Daddona's political opponent in the 1981 general election which Daddona won.

 After Daddona was elected, he immediately appointed Carson Gable as Chief of Police. Mr. Gable had served in this position from 1970 until 1977 when he retired at the same time Daddona left office. During his 1981 campaign, Daddona had expressed concern over poor morale and inefficiency in the police department. He felt that a "clique" of officers was undermining pride in the department. MacLean and Bennis were said to be part of this clique. After the election, Gable recommended that several officers be demoted and that several others be promoted as part of the solution to this problem. Daddona approved four of the demotions, two of whom are plaintiffs in this action. *fn1"

 The defendants have based their motion for summary judgment on several grounds. These include: (1) that the plaintiffs have not alleged a liberty or property interest sufficient to trigger the due process protections of the fourteenth amendment; (2) that the plaintiffs have failed to allege a cause of action under the first amendment; (3) that the plaintiffs have failed to allege sufficient grounds for their attack on defendant Gable's appointment as Chief of Police, and, in addition, lack of standing to assert such a claim; (4) that defendant Daddona acted in good faith relative to the instant demotions and that such good faith requires dismissal of the claim; and (5) that the plaintiffs should have exhausted administrative remedies prior to filing a civil rights action. Each charge will be addressed in turn.

 THE DUE PROCESS CLAIM

 Plaintiffs assert that the demotions constituted a taking of property in violation of the fourteenth amendment. The fourteenth amendment prohibits state deprivations of life, liberty, or property without due process of law. In order to invoke the protections of the fourteenth amendment, it must first be decided whether the asserted individual interests are encompassed within "life, liberty or pursuit of happiness." Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). Property interests are not created by the Constitution per se, but rather "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). The sufficiency of the claim of entitlement must therefore be decided by reference to state law. Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

 The defendants base their argument that no property right exists under state law in the rank of detective on the Third Class City Code, 53 Pa. Cons. Stat. Ann. § 37002 (Purdons Supp. 1984) which reads:

 
The mayor shall designate, from the force, the chief and other officers who shall serve as such officers until their successors are appointed and qualified. The chief of police shall be designated by the mayor and may be demoted without cause in the same manner, but not to any rank lower than the rank which he held at the time of his designation as chief of police.

 This statute has been interpreted as conferring upon the Mayor the right to promote and demote. Petrillo v. City of Farrell, 345 Pa. 518, 29 A.2d 84 (1942). In Petrillo, a police captain was demoted to the rank of patrolman without a hearing. In interpreting the Third Class City Code, the court held that the appointing authority had the power to demote police chiefs and officers to a lower rank provided that the person so demoted was kept on as a member of the force. *fn2" In reaching this conclusion, the court recognized that the Civil Service provisions of the Third Class City Code gave the plaintiff a protected status as a patrolman, but created no right in any rank above that position. This protected status was conferred by 53 Pa. Cons. Stat. Ann. § 37001 which provides that "no member of the city police force having been promoted in conformity with the civil service provisions of this act shall be demoted in rank . . . except upon proper cause shown as set forth under the civil service provisions of this Act." Since Petrillo took a civil service examination only to acquire his position as a patrolman, and no other civil service provision governed appointment to higher ranks, he could be demoted without a hearing as long as he retained his status as a patrolman.

 The Petrillo decision was followed by Sweeny v. Johns, 33 Pa. Commw. 209, 380 A.2d 504 (1977). *fn3" The plaintiff was a patrolman who was reduced in rank for purely discretionary reasons. The court interpreted the statute as extending to the mayor the sole power to designate the chief of police and other officers, and to demote the chief and other officers without cause, and without a hearing or other civil service protection.

 Plaintiffs argue that 53 Pa. Cons. Stat. Ann. § 37002 by its terms gives the mayor the right to demote only the chief of police. Because the statute is silent as to the mayor's power to demote other officers, the plaintiffs argue that police officers cannot be dismissed without cause. This argument is not persuasive in light of the case law and a reading of the statute itself. If the mayor can demote the chief of police without cause, it clearly follows that he can demote other police officers of lower rank without cause so long as their protected status as patrolmen under the civil service provisions is respected.


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