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KUCHKA v. KILE

November 22, 1985

JOHN M. KUCHKA, Plaintiff
v.
WILLARD H. KILE, SR., GEORGE H. GENSEMER, et al., Defendants


Plaintiff commenced this action on April 2, 1985, pursuant to 28 U.S.C. §§ 1331, 1343 and the First Amendment via the Fourteenth Amendment of the United States Constitution. Plaintiff seeks recovery against defendants pursuant to 42 U.S.C. § 1983, § 1985(2), the First and Fourteenth Amendments of the Constitution and various state law theories. Plaintiff invokes the court's pendent jurisdiction over the state law claims. Venue is proper pursuant to 28 U.S.C. § 1391(b). In essence, plaintiff maintains that he was fired from his job as Solicitor for the Columbia County Redevelopment Authority ("CCRA") and the Columbia County Industrial Development Authority ("CCIDA") through the concerted efforts of the defendants. Plaintiff, an attorney, alleges that the reason underlying his dismissal was plaintiff's representation of Stephen Phillips in a case against the Columbia County Board of Commissioners ("CCBC"). Allegedly, Phillips brought suit against the CCBC charging malicious interference with Phillips' employment status as Executive Director of the CCIDA and the CCRA. Defendants filed a Motion to Dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on July 1, 1985. *fn1" Plaintiff filed an Opposing Brief on July 30, 1985. Defendants replied on August 12, 1985. By letter dated August 12, 1985, plaintiff advised the court that no response is forthcoming. The matter is now ripe for disposition. For the reasons set forth below, defendants' motion will be denied as to the Section 1983 claims; granted as to the Section 1985(2) claims; denied as to the Fourteenth Amendment claims; and granted in part/denied in part as to the pendent state law claims.

FACTUAL BACKGROUND

In ruling upon a Motion to Dismiss for failure to state a claim upon which relief can be granted, all of the well-pleaded allegations of the complaint must be accepted as true. See Banghart v. Sun Oil Co., 542 F. Supp. 451 (E.D. Pa. 1982). Construing the allegations of the complaint in a light most favorable to the plaintiff in this case reveals the following:

 Plaintiff is an attorney who acted as Solicitor for the CCRA and the CCIDA. In May of 1982, plaintiff agreed to represent Stephen Phillips, former Executive Director of the CCIDA and CCRA, in a Section 1983 suit against CCBC. At that time, the CCBC consisted of Defendants Kile, Gensemer and Whitmire. Defendant Faux was Chief Clerk for the CCBC. The complaint in that case was filed on June 11, 1982. A short time thereafter, the CCBC allegedly conspired to consolidate the Columbia County Housing Authority ("CCHA") with the CCRA in order to terminate plaintiff's employment as Solicitor of the CCRA. In January of 1983, the aforementioned consolidation occurred, thereby eliminating one-half of the board members of the two (2) authorities. In addition, the CCBC pressured Defendant Boop and other members of the CCIDA (Defendants Kiniry, Patterson, Johnson, Beishline) to terminate plaintiff's employment as Solicitor for the CCIDA. Meetings were held between the CCBC and CCIDA whereby plaintiff was finally terminated in April of 1983. On November 3, 1983, Phillips' case against the CCBC settled for one hundred twenty-five thousand dollars ($125,000.00). Thereafter, Defendant Kile resigned as County Commissioner and was appointed by Defendants Whitmire and Gensemer to the now consolidated CCRA and CCHA. Subsequently, the consolidated Board of the CCRA and the CCHA met at Defendant Buckingham's house and decided to terminate plaintiff's employment as Solicitor of the CCRA. Defendants Kile, Buckingham, Reichert, Soberick and Long were the only members of the Joint Boards of the CCRA and the CCHA. Therefore, plaintiff alleges that he was wrongfully terminated as Solicitor of the CCIDA and that the consolidation of the CCRA and the CCHA was engineered so that plaintiff's employment as Solicitor of the CCRA was terminated.

 DISCUSSION

 In considering this Motion to Dismiss, plaintiff's claims should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle plaintiff to relief. Banghart v. Sun Oil Co., supra; see Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D.Mass. 1983). Because plaintiff asserts several claims against defendants, each claim will be examined seriatim to determine if that claim should withstand this Motion to Dismiss.

 I. Section 1983 Claims

 Defendants contend that plaintiff does not assert Section 1983 claims against the CCBC, the CCIDA and Columbia County. In essence, defendants maintain that plaintiff's complaint fails to allege the existence of a governmental policy, etc., as required by Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 Basically, Monell held that respondeat superior cannot be utilized to find local governing bodies liable under Section 1983. As the United States Supreme Court stated, "local governing bodies, therefore, can be sued under Section 1983 for monetary, declaratory or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Id. at 690. The Court further stated, "instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983." Id. at 694 (emphasis added).

 In the present case, plaintiff alleges that the governmental bodies themselves acted to deprive plaintiff of his constitutional rights. See Document 16 of the Record. Defendants, however, contend that the complaint fails to allege any policy or custom of the county or its agencies which was executed by refusing to retain plaintiff. The actions which plaintiff complains of were undertaken by the governing board of the CCIDA, the joint board of the CCRA/CCHA and the CCBC. Thus, plaintiff maintains that defendants themselves are the governing bodies of the county so that they may be held liable under Section 1983.

 Plaintiff's allegations are sufficient to find that the individual County Commissioners and the individual members of the CCIDA and the joint CCRA/CCHA "may fairly be said to represent official policy" of the CCBC, the CCIDA and the County itself. *fn2" See Black v. Stephens, 662 F.2d 181, 191 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 71 L. Ed. 2d 876, 102 S. Ct. 1646 (1982). Plaintiff alleges that the individual defendants, acting as members of the CCIDA and the CCBC, conspired to terminate his employment beginning sometime in May of 1982 until January of 1984. Clearly, a municipality may be held liable under Section 1983 for its employment related decisions. See Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir. 1984).

 Generally, to find a municipality liable, "a plaintiff must identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered." Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir. 1985). For purposes of this Motion to Dismiss, plaintiff must identify the policy and attribute it to the CCIDA, the CCBC and the County itself. "A policy cannot ordinarily be inferred from a single instance of illegality such as a first arrest without probable cause." Losch v. Borough of Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984). In this case, however, plaintiff alleges repeated action by high level officials of the County designed to wrongfully terminate his employment. Thus, the actions can be construed as general policy of the CCIDA, the CCBC and the County itself. Compare Black v. Stephens, supra, with Losch v. Borough of Parkesburg, supra. The court finds that plaintiff sufficiently alleges that the actions of the individual defendants were the actions of the authorities on whose boards they served and the County itself. See Black v. Stephens, supra (Chief of Police was final authority in charge of police; Police Chief wrote and implemented official police regulation; acting in this capacity the promulgation of the regulation was an official act of policy). In fact, in this case, the individual defendants are members of the boards of policy making branches of the County.

 The court will not conclude that the CCIDA, the CCBC and the County itself cannot be held liable pursuant to Section 1983. See Robb v. City of Philadelphia, supra (Civil Rights action especially should not be dismissed at pleading stage unless it appears beyond a doubt that plaintiff cannot recover). In the case sub judice, if the individual defendants were acting in their official capacities pursuant to their interpretation of county policy, then liability on the part of the county and its agencies could exist. See Czurlanis v. Albanese, 721 F.2d 98 (3d Cir. 1983); cf. DiMaggio v. O'Brien, 497 F. Supp. 870 (E.D. Pa. 1980) (acts of one counsel member and one building inspector do not without more constitute official policy). In the present case, plaintiff alleges that all of the board members of the CCIDA and the CCBC participated in his termination.

 Defendants claim that plaintiff fails to allege a property right in his continued employment so that no cause of action alleges under Section 1983 can be maintained. See Documents 11 and 17 of the Record. The court, however, finds that plaintiff sufficiently alleges a property right in this continued employment for purposes of this Motion to Dismiss. See Document 1 of the Record. "Property interests, of course, are not created by the Constitution. Rather, they 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).

 While a public employee takes his job subject to the possibility of summary removal by the employing authority, see Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960), the factual record in this case has not developed to the stage where the court can conclude that a contract of employment did not exist. Plaintiff's claim of a property interest in his employment, if pursued, will be examined upon appropriate motion when an adequate record exists. See Braderman v. Pennsylvania Housing Finance Agency, 598 F. Supp. 834 (M.D. Pa. 1984). The allegations in plaintiff's complaint are sufficient to withstand the present Motion to Dismiss.

 Defendants contend that they cannot be held liable pursuant to Section 1983 because they were acting in their legislative capacity in accomplishing plaintiff's removal and, therefore, they are absolutely immune from suit. See Document 11 of the Record. Members of a municipal body acting in a legislative capacity are absolutely immune from damage suits under Section 1983. See Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983). The question in this case is whether the individual defendants are entitled to share in this legislative immunity.

 In Aitchison, the Third Circuit Court of Appeals found that a Mayor and Borough Attorney were entitled to such immunity when "their activities are legislative in character." Id. at 99. Managerial activities of members of local governments are not protected by any absolute immunity. Id. Although it may be termed dicta, the Third Circuit Court of Appeals recently stated that "the fact that the action complained of resulted from a vote of the members of the governing body is not dispositive, for in the exercise of non-legislative powers all corporate bodies require a vote of ...


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