cause of action in tort as a remedy for the actions here alleged.
Further, we do not agree with defendants' contention that plaintiff has failed to allege the elements of a claim for wrongful discharge. In paras. 26 and 27 of the complaint, Halstead refers to the statutes and regulations applicable to the dismissal of township police officers and alleges that defendants failed to obey them. Those allegations, along with the allegation in Count III that he was discharged without just cause, sufficiently state a claim for wrongful discharge, to the extent that Pennsylvania law would recognize it in the context of this case. It is clear that Halstead is alleging that, in addition to their failure to follow proper procedures, defendants did not and could not have established that the substantive statutory standards for removal from office were met and, thus, that defendants violated state law in terminating his employment.
To the extent that Count IV, Breach of Contract, is based upon the same facts that support Count III, we would agree with defendants that since Pennsylvania does not recognize a cause of action in both tort and contract for the termination of employment, Count III should be dismissed. Darlington, supra. We will not do so, nor will we require plaintiff to amend the complaint at this point. It will be necessary, however, before trial, for plaintiff to clarify whether he is alleging that the statute and regulations he cited in the complaint confer cause of action for breach of contract, whether he is alleging a contract other than the statutory provisions which contain a just cause requirement and/or whether he means to assert a claim only for breach of the term of his alleged contract giving him complete control over the police department. This matter can easily be resolved after discovery when the facts and issues to be tried are better focused. Consequently, though we will not dismiss Count III at the present time, we may reconsider as the case progresses.
We also agree with the defendants that the complaint is unclear as to which defendants, and in what capacity, are alleged to have interfered with Halstead's employment contract with Cumru Township. While it is true that the Township and the governing body thereof, i.e., the Commissioners in their official capacities, generally cannot be said to interfere with their own contracts, that is not dispositive of the question of whether the Commissioners, in their individual capacities, or any of them, could or did interfere with any contracts which allegedly existed between Halstead and Cumru Township. Moreover, even as to the actions of the Commissioners in their official capacities, there may be a cause of action for interference with contract under the proper circumstances. See, Avins v. Moll, 610 F. Supp. 308 (E.D. Pa. 1984). Once again, we will allow the claim to proceed through discovery, but will also consider dismissal later unless the plaintiff can, by amendment, further clarify his claims as to Count V.
Since none of the other claims will be dismissed at present, Harriet Halstead's claim for loss of consortium may also proceed.
Finally, we assume that the demand for punitive damages is limited to those defendants who may be subject thereto. See, Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Certainly, if the case goes to trial, the jury will be properly instructed as to which defendants and under what circumstances punitive damages may be awarded. The allegation of willfulness is sufficient to state a claim for punitive damages in the complaint. Id. Whether they are subsequently recoverable, or even the proper subject of the jury's consideration, will be determined by the evidence at trial.
In summary, it is evident that the federal claims and, to some extent, the state claims are dependent upon issues relating to Halstead's resignation, his withdrawal of it and the Commissioners' decision to accept the former and reject the latter. These issues may be resolvable solely by reference to the law of Pennsylvania or may present mixed questions of law and fact. Whatever the case, the issues have not been sufficiently briefed by the parties to permit resolution of them at this stage of the litigation.
The course which will best serve the parties and the Court is to deny the motion to dismiss at present and allow discovery to proceed after defendants answer the complaint. The parties may then direct their energies toward assisting the Court in determining the law of Pennsylvania with respect to the resignation issue. After discovery is completed, we will also consider anew the issues relating to Counts III, IV and V, noted above, insofar as necessary. Plaintiffs may amend the complaint after discovery or after further consideration of the law relating to any of the claims stated without further order of the Court. Likewise, defendants will be permitted to amend their answer within twenty (20) days of the filing of an amended complaint. An appropriate order follows.
AND NOW, this day of November, 1986, upon consideration of defendants' motion to dismiss the complaint and plaintiffs' response thereto, IT IS ORDERED that:
1. Count II of the complaint is DISMISSED by stipulation of the parties;
2. In all other respects, the motion to dismiss the complaint is DENIED;
3. Defendants shall file an answer to the complaint within twenty (20) days of the date of this order,
4. Plaintiffs may amend the complaint without further order of the Court;
5. Defendants may amend their answer within twenty (20) days of the filing of an amended complaint.