utility poles that would appear to be in violation of the statute. (Plaintiff's Exhibit C). On the other hand, defendants Souder and Connolly testified that after they decided to cite the plaintiffs, they attempted to or actually cited others who have posted signs on private property. (Plaintiff's Exhibit A at pp. 24-28, 31-35). The testimony does not clearly establish whether defendants arbitrarily or maliciously enforced the statute against the plaintiffs or whether they began enforcing the statute evenhandedly on the day the plaintiffs were cited.
In Losch v. Borough of Parkesburg, 736 F.2d 903 (3d Cir. 1984), the plaintiff alleged that defendants maliciously prosecuted him in retaliation for voicing objections to police conduct. The court held that the district should not inquire whether the Pennsylvania criminal statutes under which they were prosecuted was clear; rather, the court should determine whether the plaintiff had clearly established rights to petition the government in the manner he did without suffering malicious prosecution. Id. at 909-10. See also Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987)(defendants not entitled to qualified immunity where law clearly established that a public employee could not be demoted in retaliation for exercising his First Amendment rights). Similarly, in Sullivan v. City of New Port Richey, 1988 U.S. Dist. LEXIS 13724, Case No. 85-459-Civ-T-17 (MD Fla. Sept. 13, 1988), the court denied defendant's motion for summary judgment where defendants allegedly selectively enforced city ordinances. The court held that without inquiring into the officials' subjective beliefs, there remained an objective, factual dispute as to defendants' motives. Thus, in the case at bar, defendants are not entitled to qualified immunity where there remains a factual issue whether they violated plaintiffs' clearly established constitutional rights to air their political views without suffering selective enforcement and malicious prosecution.
D. Municipal Liability
Defendant Borough of Morton argues that Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), shields it from civil liability. In Monell, the Supreme Court held that a municipality may be liable under § 1983 where the alleged unconstitutional action "implements or executes a policy, statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Id. at 658. Defendant argues that because Mayor Connolly and Chief Souder enforced a valid state ordinance which was adopted and promulgated by the state legislature rather than by the defendants, their actions can not be considered an implementation of an official policy. We disagree.
In Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986), the Supreme Court held that under appropriate circumstances municipal liability may be imposed for a single decision by municipal policymakers. Monell makes clear that decisions made by those "'whose acts or edicts may fairly be said to represent official policy'" may give rise to municipal liability under § 1983. Id. at 480 (quoting Monell, 436 U.S. at 694). See also Colburn v. Upper Darby Township, 838 F.2d 663, 671-72 (3d Cir. 1988). The court emphasized, however, that not every decision by a municipal policymaking official automatically subjects the municipality to § 1983 liability. "Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Pembaur, 475 U.S. at 480.
In the case at bar, both Chief of Police Souder and Mayor Connolly testified that Connolly directed Souder to issue the citations to plaintiffs. (Plaintiffs' Exhibit A at pp. 6 & 15-16). Interpreting the facts in a light most favorable to the plaintiff, we find that there is a genuine issue of material fact whether defendants selectively enforced the statute and maliciously prosecuted the plaintiffs. As discussed above, Souder testified that the plaintiffs were the first to be cited and prosecuted under the statute for at least five years, and the photographic exhibits suggest that the defendants may not be as zealous in prosecuting other potential violators. Because the plaintiffs were cited and prosecuted for posting political posters, they have made a sufficient showing that the defendants selectively treated them as a punishment for exercising their First Amendment rights. The question arises, however, whether the Mayor possessed policymaking and final authority with respect to the actions ordered such that the Borough may be held liable for the injuries to plaintiffs. Whether an official has sufficient authority is a question of state law. Pembaur, 106 S. Ct. at 1300.
In a Pennsylvania borough, it is the duty of the mayor "to enforce the ordinances and regulations." 53 Pa. Cons. Stat. Ann. § 46029 (Purdon Supp. 1978). In addition,
the mayor of the borough shall have full charge and control of the chief of police and the police force, and he shall direct the time during which, the place where and the manner in which, the chief of police and the police force shall perform their duties. . . .
53 Pa. Cons. Ann. § 46121 (Purdon 1966). This language makes clear that Mayor Connolly possessed final authority with respect to the issuance of citations to plaintiffs. Thus, Monell does not shield the Borough from liability. Defendants' motion for summary judgment is denied.
An appropriate order follows.
AND NOW, this 15th day of MARCH, 1989, upon consideration of MOTION FOR SUMMARY JUDGMENT, filed by defendants on November 28, 1988 and ANSWER thereto, filed by plaintiff on December 13, 1988, it is hereby ORDERED that defendants' Motion is Denied.
It is further ordered, however, that plaintiffs respond to defendants' requests for admissions within twenty days of the date of this order.