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GREGORY v. CHEHI

March 2, 1987

JAMES S. GREGORY
v.
MARK CHEHI, BARRY GEBHART, WILLIAM DANYLUK, DENNIS BENNER, EVERETT OREN, GUY LESSER, STEPHEN J. MARCINCIN and LOWER SAUCON TOWNSHIP



The opinion of the court was delivered by: CAHN

 CAHN, J.

 On November 1, 1985, Plaintiff James Gregory was removed from his position as a Lower Saucon Township police officer. Pursuant to 42 U.S.C. § 1983 plaintiff filed this suit alleging that the defendants violated his constitutional rights by removing him from his position because of his political views. Before me are defendants' motions for summary judgment in which defendants assert that their qualified immunity as government officials and, in the alternative, the doctrine of collateral estoppel mandate a judgment in their favor. Because I find that the plaintiff has a full and fair hearing on the merits of his claim in the Court of Common Pleas of Northampton County, Pennsylvania, I will grant the defendants' motions. *fn1"

 Summary judgment may be granted under Federal Rule of Civil Procedure 56 if the moving party establishes that there are no genuine issues of material fact, and that, under the undisputed facts, he is entitled to judgment as a matter of law. Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 472 (3d Cir. 1985). In determining the existence of genuine issues of fact all inferences must be viewed in a light most favorable to the nonmoving party and all doubts must be resolved in favor of the nonmoving party. Id. However, the nonmoving party cannot rely on his pleadings or mere legal conclusions. Sound Ship Building Corp. v. Bethlehem Steel Co., 533 F.2d 96, 100 (3d Cir.), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976).

 I. FACTS

 Viewed in a light most favorable to the plaintiff the evidence shows that on July 26, 1976 plaintiff began his employment as a patrolman for the Lower Saucon Township Police Department. His performance as a police officer elicited mixed reviews. Although his conduct has generally been lauded through letters of thanks and commendation from local citizens and township officials, plaintiff received five written warnings for improper conduct during the last four years of his tenure. *fn2"

 At approximately 4:00 a.m. on October 25, 1986 Stephen J. Marcincin, a night duty Northampton County magistrate, learned through a conversation with a Hellertown police sergeant that a Lower Saucon police cruiser was parked in Hellertown, a community that adjoins Lower Saucon Township. Upon investigation Marcincin found police cruiser #401 backed into a parking lot behind plaintiff's home in Hellertown. At the time plaintiff was one of only two officers on duty in the Township. Marcincin immediately contacted Dennis Benner, vice mayor of Lower Saucon, who in turn notified the mayor, Mark Chehi, who in turn notified Lower Saucon Police Chief Guy Lesser.

 The four officials waited at plaintiff's house for over two hours until approximately 6:18 a.m., when plaintiff entered the vehicle, transmitted a garbled radio message indicating a "business check" in Lower Saucon Township, and then left the premises. A written policy requires all Lower Saucon police officers to radio headquarters any time they leave the township, giving their location as part of the message. Plaintiff gave no such message during the time he was at his home.

 On October 30, 1985, Police Chief Lesser and Township Manager VanSchaick interviewed plaintiff about the events of October 25, 1985. Plaintiff first said that he had no memory of the evening, but then admitted that he may have taken a break at home for forty-five minutes to one hour without radioing in as required. Plaintiff also stated that the reason he had radioed a business check at 6:19 a.m. was because he had forgotten to call the check in when he had conducted it earlier in his shift. Manager VanSchaick and Chief Lesser believed plaintiff was untruthful in his account of the incident. After reviewing the plaintiff's service record, Manager VanSchaick discharged plaintiff on November 1, 1985, citing as the reasons for his removal neglect of an official duty, violation of an official duty, disobedience of orders, conduct unbecoming of a police officer, and insubordination.

 Pursuant to the amended Police Tenure Act, 53 P.S. § 811 et seq. (1974), plaintiff demanded a public hearing to review his removal. The Township Board of Supervisors, sitting without the mayor and vice mayor, who disqualified themselves, held a series of public hearings. As its first action, the Board denied plaintiff's request that one of the remaining supervisors, Mr. William Danyluk, disqualify himself because of his bias against plaintiff. During the hearings, counsel for both plaintiff and the township created a voluminous record detailing the incident at issue, plaintiff's record, and plaintiff's explanation of his conduct. On December 19, 1985, the Board of Supervisors unanimously sustained Manager VanSchaick's removal of plaintiff as a police officer, finding that plaintiff had engaged in the improper conduct outlined in the Manager's removal letter.

 Plaintiff filed a timely appeal to the Northampton County Court of Common Pleas but waived his right to a de novo hearing. After reviewing the hearing record, the court affirmed the Board of Supervisors' decision holding that the "decision of the Board . . . and the manner in which they reached it was both fair and reasonable." Gregory v. Lower Saucon Township, Northampton , (No. 1986-C-455, filed June 18, 1986). No appeal was taken from this decision, and on September 13, 1986, plaintiff filed this action seeking damages for alleged violations of his constitutional rights.

 II. Discussion

 A. Political Firing

 Plaintiff alleges that he was dismissed because of his long-standing political opposition to the defendants. Clearly, first amendment rights of nonpolicymaking employees like plaintiff are violated if political affiliation is a substantial or motivating factor in their discharge. Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir.), cert. denied, 469 U.S. 886, 105 S. Ct. 260, 83 L. Ed. 2d 196 (1984). See Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, ...


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