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November 7, 1986


The opinion of the court was delivered by: TROUTMAN


 The instant case arises from Cumru Township's acceptance of the resignation of John Halstead as Chief of Police. Halstead submitted a letter of resignation on September 10, 1985, to be effective October 11, 1985. Before the Township Commissioners met to accept the resignation at a public meeting, Halstead submitted another letter rescinding his September 10 letter and informing the Commissioners that he would resume his duties as Chief of Police when his month-long vacation ended on October 11, 1985. Notwithstanding Halstead's hand-delivery of the rescission letter on the morning of September 17, 1985, the Commissioners formally accepted Halstead's resignation at a public meeting that same evening and informed him of their action by a letter dated September 18, 1985.

 On June 2, 1986, plaintiff filed a complaint in which he alleges that he was removed from office without due process of law and amid public charges of impropriety. Thus, he avers that defendants, including the individual commissioners serving at the time of the incident and those presently serving, violated his civil rights in contravention of 42 U.S.C. § 1983 and § 1985(3). In addition, he alleges several pendent state law claims: wrongful discharge, breach of contract and intentional interference with contract. Finally, Halstead's wife and co-plaintiff alleges the derivative claim of loss of consortium. Halstead seeks a declaratory judgment, injunctive relief, in the form of reinstatement, compensatory and punitive damages.

 Plaintiffs and defendants have stipulated to the dismissal of Count II of the complaint, a conspiracy claim under § 1985(3). Defendants have also moved for the dismissal of the remaining counts of the complaint, contending that plaintiff has failed to state a claim upon which relief may be granted as to each count. Alternatively, defendants seek dismissal of the Township Commissioners in their individual capacities and dismissal of the claim for punitive damages.

 The gravamen of the complaint is that the action of the Cumru Township Commissioners in accepting Halstead's resignation after they were aware of his withdrawal of his letter of resignation constituted a constructive discharge. Since the defendants did not afford Halstead notice of the reasons for his discharge nor the opportunity for a hearing, Halstead alleges that he was denied constitutional due process of law, and also that defendants' action was a violation of the procedures prescribed by the First Class Township Code with respect to the removal of a police officer.

 Defendants contend that there was no discharge or, in the alternative, that Halstead could and should have requested a hearing before the Township Civil Service Commission.

 The standards to be applied in considering a motion to dismiss under Fed. R. Civ. P. 12 (b)(6) are well-known: the Court is to take as true the well-pleaded allegations of the complaint and may dismiss only if it is clear that plaintiff can prove no set of facts which would entitle him to relief. Scheuer v. Rhodes, 416 U. S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In applying those standards to the facts of this case, we consider first whether Halstead has stated a § 1983 claim for denial of due process.

 In considering a due process claim, we must initially determine whether there exists a constitutionally protected interest, thereby triggering the protections of the Due Process Clause. Stana v. School District of Pittsburgh, 775 F.2d 122 (3d Cir. 1985). It is clear that Halstead had a property right in his position before he submitted the resignation letter of September 10, 1985. The Court of Appeals for the Third Circuit has held that there is an enforceable expectation of continued employment, hence, a property right or protected interest where a termination of employment is restricted by law, government policy or "mutually explicit understandings between a government employer and employee". Id. at 126; Abraham v. Pekarski, 728 F.2d 167 (3d Cir. 1984).

 Here, both a Pennsylvania statute, 53 Pa. Con. Stat. Ann. § 55644 (Purdon's 1986), *fn1" and local regulations, the Cumru Township Civil Service Commission Rules and Regulations (Exhibit A to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, Doc. #8), provide for the removal of police officers only for certain enumerated reasons. Moreover, both provisions also specify that a specific statement of the charges warranting the suspension, removal or reduction in rank of a police officer be provided to the affected officer when such an action is taken by the appointing authority. *fn2"

  Thus, a police officer, including the Chief of Police, *fn3" can legitimately expect to remain employed until formal charges are lodged and acted upon by the appointing authority or until the officer resigns.

 We next consider the effect of the September 17, 1985, letter withdrawing Halstead's September 10, 1985, resignation letter. It is clear that if, under the applicable law of Pennsylvania, Halstead's resignation could be considered final before he submitted the letter withdrawing it or if the law otherwise permits the Commissioners to disregard the second letter, there was no termination of employment and consequently no denial of due process. Ryan v. Mansfield State College, 677 F.2d 344 (3d Cir. 1982). Obviously, if Halstead was not removed from office he was not deprived of his property interest in his position. Likewise, to the extent that his claim for invasion of his Fourteenth Amendment liberty interest in his good name is dependent upon his removal from office, that claim would also fail, resulting in the complete dismissal of Count I of the complaint. *fn4"

 The law is far from clear on the issue of whether Halstead's second letter could effectively withdraw his resignation. Both parties to this litigation seem to be proceeding on the assumption that the Township Commissioners, at some point, had to accept the resignation before it was final. They disagree only on the issues of when the resignation could be and was accepted. Plaintiff contends that the Commissioners could accept Halstead's resignation only at the public meeting on the evening of September 17, 1985, and that under the general law of contracts, he was free to withdraw his offer of resignation prior thereto. Defendants contend that the Commissioners could accept the resignation at an executive or work session and did so. Alternatively, defendants argue that the Township's granting of Halstead's request for his accrued vacation time and pension benefits constituted consideration for the offer to resign, thereby rendering it irrevocable.

 Neither side, apparently, has considered the questions raised by the Third Circuit Court of Appeals in Ryan v. Mansfield State College, supra., with respect to whether ...

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