The opinion of the court was delivered by: CAHN
The plaintiff, Gerald A. Greenberg, seeks money damages and injunctive relief from the defendants
in regard to his demotion from Lieutenant/Deputy Chief of Police of the City of Pottsville. Before the court is defendants' motion for summary judgment. I will grant defendants' motion for the reasons set forth in this opinion.
Greenberg received an appointment as a patrolman with the Pottsville Bureau of Police on April 16, 1971. He was promoted to the rank of Detective in November of 1975. In June of 1979, he was promoted to the rank of Lieutenant. Greenberg was designated Deputy Chief of Police of the Pottsville Bureau of Police by a letter dated March 18, 1983, from the then Mayor, Charles Quandel. On April 24, 1984, Mayor Pacenta reorganized the Pottsville Bureau of Police and demoted Greenberg to the rank of patrolman.
On July 12, 1984, Greenberg submitted a resignation from the Pottsville police force to Chief John Mushock. The defendants did not afford Greenberg any type of hearing concerning his demotion. Although he attempted to rescind his resignation, the City of Pottsville has taken the position that the resignation is valid and binding upon Greenberg.
On May 21, 1984, Greenberg filed the within lawsuit alleging a violation of his constitutional rights to substantive and procedural due process as an employee of a municipality. Greenberg alleged that he had a property interest in his position as Deputy Chief or at least in regard to his rank as Lieutenant. Greenberg also alleged that his constitutional right to equal protection of the law was violated by the adoption of the ordinance which reorganized the Bureau of Police.
It does not appear that Greenberg has taken any action to grieve his demotion in accordance with the Collective Bargaining Agreement between police officers and the City of Pottsville. Nor has Greenberg initiated any action to redress his demotion under the Civil Service provisions applicable to third class cities.
The first inquiry is whether or not Greenberg has a property interest in either the position of Deputy Chief or the rank of Lieutenant. Whether or not a police officer's rank is constitutionally protected property hinges on whether or not the police officer has a claim of entitlement under state law. Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976), Sames v. Gable, 542 F. Supp. 51, 52 (E.D.Pa. 1982), vacated on other grounds, 732 F.2d 49 (3d Cir. 1984). If Greenberg does not have a property interest in either position, then I would be required to grant defendants' motion because Greenberg can have no federal claim based on the taking of an unprotected right. The defendants contend that Greenberg had no entitlement to either the position of Deputy Chief or the rank of Lieutenant.
In regard to the position of Deputy Chief, I hold that the defendants are correct in their assertion that Greenberg has no entitlement under state law to that position. His appointment to that position by its terms was to expire on December 31, 1983. There is no proffer of any evidence that Greenberg was appointed to the position of Deputy Chief in conformity with Civil Service provisions and, therefore Civil Service protection did not attach. Snizaski v. Zaleski, 410 Pa. 548, 189 A.2d 284 (1963).
The defendants' argument in regard to the rank of Lieutenant is less persuasive and I reject it. Defendants urge that the Pennsylvania Supreme Court in Petrillo v. City of Farrell, 345 Pa. 518, 520-21, 29 A.2d 84 (1942) and Zeloyle v. Bettor, 371 Pa. 546, 549, 91 A.2d 901 (1952) held that a third class city
may demote a policeman without a hearing provided the officer remains a member of the force. The difficulty with defendants' contention is that the statute was amended on December 27, 1967. The Third Class City Code of Pennsylvania ("Code") now provides at Pa. Stat. Ann. tit. 53, § 37001 (Purdon Supp. 1984):
The defendants maintain that the quoted portion of the Code nevertheless permits the Mayor to demote ranking police officers because of the following provision in the Code set forth at Pa. Stat. Ann. tit. 53, § 37002 (Purdon Supp. 1984), which provides:
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. (Emphasis supplied)
It is the defendants' position that this section authorizes at-will appointments and at-will demotions by the Mayor of a third class city.
That contention is correct in regard to the Chief of Police (provided the demotion is not to a rank lower than that which he or she held immediately prior to the appointment as chief) and it may be correct in regard to police officers who are appointed to ranking positions in a manner not in conformity with the Civil Service provisions of the Code. However, Greenberg (who was not the chief) was appointed to his position as Lieutenant in conformity with the Civil Service provisions of the Code and, therefore, he cannot be demoted or discharged except upon proper cause shown in conformity with the Civil Service provisions.
Therefore, I conclude that Greenberg did have an entitlement to the position of Lieutenant.
Consequently, plaintiff is in a position to petition the Council of the City of Pottsville for a hearing on whether or not there was cause to demote him from the rank of Lieutenant to patrolman and whether or not his subsequent resignation was a constructive discharge. If plaintiff is aggrieved by the ...