The material facts concerning which there are no genuine issues may be summarized as follows: Prior to the events set out below, plaintiffs, except the FOP, were police officers employed by the Philadelphia Police Department. Plaintiffs Gniotek, Christy, Pescatore and Garris were named by prosecution witnesses in United States v. Martin, et al., as having been the recipients of bribes for the protection of illegal activities. Specifically, government witness Eugene Boris testified that he made payments to "an officer Gutak [sic] * * * He came . . . the first of the month, and I paid him." Boris further testified that he paid in increments of $60.00 over a period of time to Officer Gniotek. On the same day, Albert Ricci, the so called "bagman" of the Vice Squad for the Northwest Police Division testified that "Augustine Pescatore, Leonard Garris and myself" shared in bribe proceeds. Ricci also testified that money was distributed to other members of the Northwest Vice Squad, which consisted of Pescatore, Garris and Christy.
Plaintiff Gioffre was similarly identified in the Martin trial as a recipient of bribes in return for permitting illegal activities. Former Police Captain Joseph Alvaro, who was in charge of the Vice Squad in the Northwest Police Division, testifying for the government stated that during the period November 1982 and March 1983, Gioffre collected payments from liquor licensed establishments in return for permitting illegal activities.
On November 1, 1984, former police officer George Bowie, during the course of his entry of a guilty plea, identified plaintiff Sullivan as the recipient of bribe monies.
In the trial of United States v. Volkmar in November 1984, George Bowie, a prosecution witness, identified plaintiffs Schwartz and Stansfield as recipients of bribes. He testified: "I had Bob Schwartz picking up from several people, and then Bob Stansfield also." Government witness Robert Sadowl also testified that he met with plaintiff Sofronski "and discussed my business throughout the city," and that they made an agreement regarding Sadowl's video poker machines. Sadowl testified "It was $10 per location per month."
On the day after the implicating testimony was made, each of the plaintiff police officers, except Sullivan, was ordered to report to the Ethics Accountability Division of the Police Department. Each officer appeared and was called in individually with his counsel present. Each officer was advised that he had been identified in federal court testimony as the recipient of bribes in connection with the performance of his duties as a police officer and that each was the subject of a Philadelphia Police Department criminal investigation. Each officer was then given his Miranda warnings and was asked if he wished to give a statement. A copy of the warnings is attached as Appendix A. Each officer, on advice of his counsel, asserted his fifth amendment privilege against self-incrimination and chose to remain silent. Each officer was then given a memorandum entitled "Notice of Suspension with Intent to Dismiss," which stated that the suspension was effective immediately. A copy of a "Notice of Suspension with Intent to Dismiss" is attached as Appendix B. Plaintiff Sullivan was served at home with the "Notice of Suspension with Intent to Dismiss" but did not receive Miranda warnings. He was, however, notified of the reasons for his suspension with intent to dismiss.
After his suspension, each plaintiff, except Sullivan and Stansfield, received a copy of a "Statement of Charges filed and Action Taken" ("Statement"). A copy of a "Statement of Charges Filed and Action Taken" is attached as Appendix C. The Statement lists the violations of the Police Disciplinary Code with which each individual plaintiff police officer was charged. Plaintiffs Gniotek, Christy, Pescatore, Gioffre, Schwartz and Sofronski signed the Statement and checked the box on the Statement marked "I Plead Not Guilty & Request a Hearing". Plaintiff Garris refused to sign the Statement.
In addition, each plaintiff police officer was served with a "Notice of Intention to Dismiss" which formally suspended each plaintiff as of the date of the initial interview with the Ethics Accountability Division. A copy of a "Notice of Intention to Dismiss" is attached as Appendix D. This notice sets forth the reasons for the suspension and specifies:
If you believe that this intended action is unjustified, you may, under regulations of the Civil Service Commission, within ten days from the service of this notice, notify me in writing of your reasons therefor and summarize the facts in support of your belief. A copy of your letter to me must be sent at the same time to the Personnel Director.
The notice was signed by then Police Commissioner Sambor. Sullivan was also notified of his right to submit a letter within ten days to Police Commissioner Sambor. Neither the Police Commissioner nor the Personnel Director ever received a letter from any of the plaintiffs within the ten day period.
Each plaintiff police officer was dismissed "effective ten days from service of [the Notice of Intention to Dismiss]."
Each of the plaintiff police officers initiated individual grievances with the Police Commissioner for the purpose of challenging his dismissal. Pursuant to the FOP collective bargaining agreement with the City, the plaintiffs submitted their grievances to arbitration by an arbitrator designated by the American Arbitration Association. Plaintiffs' grievances were consolidated and were heard by one arbitrator. The arbitrator issued an opinion on November 25, 1985, in which he found that Christy, Pescatore and Garris had been dismissed for just cause. These three officers have not been indicted. The arbitrator determined that Gniotek and Sofronski were not dismissed for just cause because the City had not met its burden of proof. These two officers have not been indicted. The arbitrator ordered Gniotek and Sofronski reinstated if witnesses against them were not produced within two weeks of the date of his opinion. The grievances of Gioffre, Sullivan, Schwartz and Stansfield were "tabled pending final outcome, including possible appeals, of the proceedings in federal court." Arb. opin. at 2, Nov. 25, 1985. Gioffre, Sullivan and Schwartz were indicted and were found guilty. Stansfield has not been indicted.
Subsequent to their termination, the plaintiff police officers were advised by Anthony Witlin, the Executive Director of the Philadelphia Board of Pensions and Retirement (the "Board"), that they may be disqualified from receiving pension benefits pursuant to § 217 of the Philadelphia Municipal Employees Retirement Ordinance. The Board is currently conducting hearings on the plaintiffs' rights to their pension benefits.
Defendants have listed the following eight grounds in support of their motion to dismiss or in the alternative for summary judgment:
1) Plaintiffs were lawfully dismissed for just cause under the Philadelphia Home Rule Charter;
2) Plaintiffs' discharge did not violate the Constitution because they were not dismissed for invoking their Fifth Amendment rights;
3) Plaintiffs' dismissals complied with the due process requirements for public employees;
4) Plaintiffs' complaint alleges no class-based discrimination for which relief can be granted under 42 U.S.C. § 1985;
5) This Court should abstain from making any ruling on the propriety of plaintiffs' discharge under the Home Rule Charter;
6) Plaintiff Fraternal Order of Police lacks standing;
7) Plaintiffs' claims regarding their rights to a pension are premature; and
8) This Court should abstain from making any decision regarding plaintiffs' entitlement to a pension under section 217 of the Municipal Employees Retirement Ordinance.
The plaintiffs, on the other hand, have moved for summary judgment and denial of the defendants' motion on the following four grounds:
1) Plaintiffs' discharges were not supported by just cause as a matter of law;
2) The failure/refusal of the City of Philadelphia to ask plaintiffs relevant questions relating to the proper performance of their duties and to discuss a proffer of immunity, but immediately terminating plaintiffs upon asserting their fifth amendment rights constituted discharge in violation of their assertion of that privilege;
3) The City's procedures and regulations governing procedural due process provide no predeprivation notice of charges or opportunity to be heard and, thus, are unconstitutional; and
4) The opinion of the City Solicitor, a determination that plaintiffs were not eligible for the receipt of a pension, constitutes a deprivation that must be preceded by notice and opportunity to be heard.
STANDING OF FRATERNAL ORDER OF POLICE
The defendants have moved for dismissal of the FOP on the ground that it lacks standing in this matter. The law is clear that representational standing can exist where the association alleges that its members have or will suffer immediate or threatened injury as a result of the challenged action; that the members could bring the same suit individually; and that the nature of the claim and the relief requested do not require the individual participation of the injured parties for a proper resolution. Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211-12, 45 L. Ed. 2d 343 (1975). See also Hunt v. Washington State Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977); Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F. Supp. 254, 257 (E.D. Pa. 1984). There is no question that the FOP represents all uniformed employees of the Philadelphia Police Department. Plaintiffs' complaint challenges departmental practices which pertain to dismissal of uniformed employees, and seeks declaratory and injunctive relief. Since the allegations raised by the FOP fulfill each of the three requirements outlined by the Supreme Court, the FOP has standing in this case. Defendants' motion to dismiss the FOP on the ground that it lacks standing will be denied.
FAILURE TO STATE A CAUSE OF ACTION UNDER § 1985
The defendants seek dismissal of plaintiffs' claim brought pursuant to 42 U.S.C. § 1985. Because plaintiffs do not allege any facts or circumstances to support a claim under § 1985, defendants' motion to dismiss will be granted. In order to state a cause of action under 42 U.S.C. § 1985, plaintiffs must allege "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) (footnote omitted); Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert. denied 444 U.S. 898, 62 L. Ed. 2d 133, 100 S. Ct. 205 (1979). Plaintiffs' allegations do not meet this requirement. Therefore the plaintiffs' 42 U.S.C. § 1985 claim will be dismissed.
DEPRIVATION OF PENSIONS WITHOUT DUE PROCESS
The plaintiffs have submitted to the Philadelphia Board of Pensions and Retirement (the "Board") the issue of whether plaintiffs are barred from receiving their pensions. The Court has not been advised as to whether the Board has made a determination. Plaintiffs have, however, asked this Court to determine that the plaintiff police officers have been deprived of their pensions without due process of law. The plaintiffs' claim of deprivation of property without due process of law is therefore not ripe for determination because apparently the Board is currently reviewing whether plaintiffs will be barred from receiving their pensions. As stated by Judge Giles in Amanto v. Witlin, 544 F. Supp. 140, 142 (E.D. Pa. 1981)
There must at least be some definitive administrative determination resulting in a denial or deprivation of due process before [plaintiff] can raise such a [§ 1983] claim. Until there is a final decision which has a practical impact on a litigant, it is not ripe for adjudication. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226 (3d Cir. 1977) (dictum) (usual ripeness standard applies in section 1983 cases). The basic rationale underlying the ripeness standard as articulated by the Supreme Court is to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott, 387 U.S. at 148-49, 87 S. Ct. at 1515.
544 F. Supp. at 142. Plaintiffs' claim for relief in connection with the alleged unconstitutional deprivation of their pensions will therefore be dismissed on the ground that this claim is not ripe for adjudication.
SUMMARY JUDGMENT: DISMISSAL FOR ASSERTING FIFTH AMENDMENT
Plaintiffs claim that the plaintiff police officers were dismissed because they asserted their fifth amendment privilege against self-incrimination. In support of their contention, it is asserted that the Police Department was required to ask the plaintiff police officers questions concerning the performance of their duties and to offer them immunity by assuring them that their answers would not be used against them. Plaintiffs' assert that Gardner v. Broderick, 392 U.S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1082 (1968) requires such a procedure. The Court disagrees. Gardner holds only that the Constitution prohibits a policeman from being terminated solely on the basis of his refusal to waive his fifth amendment privilege against self-incrimination. The Supreme Court in Gardner stated:
The question presented in the present case is whether a policeman who refuses to waive the protections which the [fifth amendment] privilege gives him may be dismissed from office because of that refusal.