Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-5405).
Weis and Stapleton, Circuit Judges, and Diamond, District Judge.
The doctrine of res judicata has never been as pithily or colorfully expressed as it was during the Civil War by a highly unlikely source. General Nathan Bedford Forrest, the semi-literate cavalry genius of the Confederacy, after twice refusing a soldier's request for a furlough, scribbled on the back of the form, "I told you twicest Godamnit know."*fn1 We take somewhat longer to explain why the adverse result of a state proceeding instituted by a police officer to protest his dismissal prevents him from relitigating part of his case in a section 1983 action in federal court. Because some elements of the plaintiff' case fall outside claim preclusion limits, we will affirm in part and vacate in part the summary judgment in favor of defendants.
On November 1, 1985, after nine and one-half years of service as a police officer for the Township of Lower Saucon, Pennsylvania, plaintiff was discharged from his position, assertedly for violations of departmental rules. Plaintiff then demanded and received a hearing before the Township Council pursuant to the Local Agency Law, 2 Pa. Cons. Stat. Ann. § 752 (Purdon Supp. 1987), and the Police Tenure Act, 53 Pa. Stat. Ann. tit. § 811 (Purdon 1974).*fn2
Council received evidence showing that plaintiff (1) left his patrol duty on the night of October 25, 1985 without justification and spent more than two hours at his home; (2) improperly reported his whereabouts during that time period; (3) responded falsely and evasively to questions by the police chief and the township manager about his activities that night; and (4) had received five written warnings for improper conduct during the preceding four years. Citing those factual findings, Council sustained the plaintiff's discharge.
The hearings required three public sessions of Council, during which the parties were represented by attorneys who examined and cross-examined witnesses at length. A court reporter prepared a complete transcript of the hearings. The hearing panel consisted of three Council members: Barry Gebhart, William Danyluk, and Everett Oren. Five members usually sat on the Council, but in this instance Mayor Mark Chehi and Councilman Dennis Benner recused themselves as adjudicators in order to testify as fact witnesses. Although plaintiff moved to disqualify Danyluk for political bias, the councilman asserted his objectivity and refused to step aside.
Testimony established that, for about four years, plaintiff had actively participated in politics in Lower Saucon Township and in his neighboring hometown, the Borough of Hallertown. In both communities, he held executive positions in the Democratic Party; in Hallertown, he also served as a councilman.
The plaintiff's political activities frequently spawned controversy. In 1983, as a Democratic Executive Board member, plaintiff tried unsuccessfully to block party endorsement of Danyluk's candidacy for the Township Council. In 1984 and 1985, when plaintiff represented the Township Police Association at Council meetings, he publicly criticized the way in which the Township administered the police department,
Gail Nolf, a witness at the plaintiff's hearing who had held various Township posts, testified to political animus on the part of the defendants. She spoke of having told defendant Chehi in 1985 that plaintiff might support Nolf's bid for a council seat. Mayor Chehi responded, "[H]e shouldn't be messing in politics," that "being a Policeman, he shouldn't get involved in politics," and "they could nail him on that." Nolf also averred that Danyluk said he "wanted to get that bastard."
In their summations to Council, lawyers for plaintiff and the Township addressed the charges of misconduct and called attention to the allegations of bias. The plaintiff's attorney conceded that his client might have committed a technical violation of police regulations, but argued that a written reprimand would suffice. Observing that the Council's decision to terminate plaintiff bypassed appropriate procedures and could be attributed to improper motivations, his counsel warned, "you may not like his politics and you may not like his outspokenness, but I think you also are going to take your responsibility seriously and know that you are dealing with someone's livelihood."
The Township's attorney responded, "there is one thing that [plaintiff's counsel] has said I agree with --- I don't think this Board [Council] should consider any public political statements made by Mr. Gregory in rendering their decision." He urged the Councilmen to "purge any such statements from your mind" and "consider only the evidence that we have presented concerning his conduct as a Police Officer. . . ." The attorney then concluded: "Forget politics. Forget his public statements. They are not important in your decision."
Following Council's unfavorable resolution of his petition, plaintiff appealed to the Court of Common Pleas of Northampton County as provided by the Police Tenure Act and the Local Agency Law. He named as defendants Lower Saucon Township, as well as Barry Gebhart, William Danyluk and Everett Oren, the Council members who had heard the plaintiff's petition for reinstatement. Although on the appeal to the Court of Common Pleas plaintiff initially sought a de novo hearing, he did not pursue this request and did not present any testimony beyond that contained in the hearing transcript.
In his brief to the Common Pleas Court, plaintiff discussed at length the allegations of bias. He referred to Nolf's testimony, recalling Chehi's intention to "nail" plaintiff for his political activity and Danyluk's threat to "get" plaintiff. The brief commented that "[d]espite this evidence, Gregory's motion for Danyluk's removal was denied, and Danyluk sat in judgment of Gregory."
Plaintiff's brief listed five issues:
1. A violation of the "Sunshine Law;"
2. The township's failure to follow its progressive discipline policy;
3. Insufficiency of the evidence on the plaintiff's false answers:
4. Failure to notify plaintiff that his actions would be a basis for discharge;
5. "Whether Councilman Danyluk was biased and predisposed to render him incompetent to sit on council to decide whether Officer Gregory should be discharged."
In Part D, captioned "The Township Council Members, Particularly William Danyluk, Were Biased Against Gregory," the brief cited section 2 of the Police Tenure Act, which prohibits the removal of an officer for "religious, racial or political reasons." The brief then continued:
"It is undisputed that Gregory was enmeshed in politics. His opposition to the key witness against him, Marcincin, and Board Members Benner and Chehi, also key material witnesses against him, were public knowledge and acknowledged by Marcincin, Chehi and Benner. Previous discipline imposed upon Gregory by this Council, which included Benner and Chehi, were obvious attempts to cool Officer Gregory's political activities, as well as infringe upon his constitutional rights to freedom of speech and freedom of association."
After alluding to the "witch hunt mentality" of witness Marcincin and Mayor Chehi, plaintiff turned to the "equally biased" Danyluk. The brief urged the court to not allow these three "political cohorts" to prevail warning that their success "would do violence to not only the Police Tenure Act but also basic concepts of fundamental fairness upon which that Act is based."
The Court of Common Pleas delineated its standard of review as "limited to a determination of whether the Board of Supervisors [Council] abused its discretion, committed an error of law, or violated any constitutional rights." After reviewing Council's factual findings, the court concluded that substantial, if not overwhelming, evidence supported the plaintiff's discharge. The court further upheld the procedures Council had followed in sustaining the dismissal.
The state court found the plaintiff's allegations of bias to be without merit, reasoning that after the two councilmen who had direct personal knowledge disqualified themselves, the remaining three conducted the hearing fairly, reasonably, and with no preconceived ideas about the plaintiff's guilt or innocence. Having rejected the bias argument, the court emphasized that the Police Tenure Act was designed to prevent the removal of police officers for political or other improper purposes, yet "[i]t did not create ...