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Reich v. Beharry

filed: August 24, 1989.

SAMUEL J. REICH, APPELLANT
v.
PATRICIA BEHARRY, AN INDIVIDUAL AND THE COUNTY OF WASHINGTON



On Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil Action No. 88-0588.

Seitz*fn* , Stapleton and Cowen, Circuit Judges.

Author: Stapleton

Opinion OF THE COURT

STAPLETON, Circuit Judge:

Samuel J. Reich, a lawyer, was hired by the county of Washington as a special prosecutor to investigate and prosecute the county's controller, Patricia Beharry. Reich performed his assigned task, although Beharry was acquitted. He then submitted bills for payment to the county, but the subject of his investigation proved an obstacle to his compensation: To be paid, Reich had to obtain the controller's approval, an approval Beharry has refused to grant.

Reich brought an action in the United States District Court for the Western District of Pennsylvania, claiming that Beharry and the county had deprived him of property without due process of law in violation of the procedural and substantive components of the fourteenth amendment's due process clause and 42 U.S.C. § 1983. Reich also appended state law claims for breach of contract and unjust enrichment against the county.

The county filed an answer, admitting most of Reich's allegations, but Beharry filed a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The district court granted that motion and dismissed all of Reich's claims against both parties.*fn1 We will affirm.

I.

We accept as true all of the complaint's factual allegations and all reasonable inferences that can be drawn from them. We must refrain from affirming the dismissal unless we are convinced that no relief could be granted under any provable set of facts. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

On April 10, 1986, Reich entered into a written agreement with the county providing for his appointment as a special prosecutor. The agreement provided that Reich would be paid by the hour and that he was to be considered "an independent contractor for all purposes." App. at 16. Further, the agreement could be terminated "at any time by either party." App. at 14. No provision for the timing of Reich's payment was included in the agreement.

At the time this agreement was entered the county's rules governing contract payment procedures provided in part as follows:

Subject to the power and duty of the county commissioners to manage and administer the fiscal affairs of the county, the controller shall supervise the fiscal affairs of the county including the accounts . . . of all officers and other persons who shall . . . receive . . . the public moneys of the county. The discretionary powers of the controller shall not be applicable to the management of the fiscal policies of the county commissioners, . . . but the controller shall refuse to authorize any fiscal transaction which is, by law, subject to his supervision or control where it appears that such transaction is not authorized by law, or has not been undertaken according to law, or has not received approval according to law. . . .

16 P.S.A. § 1702(a) (emphasis supplied).

If the controller does not approve a claim, bill or demand presented to him, he shall within thirty days forward it to the county commissioners together with his notice that he has refused to approve the same and his reasons therefor. The county commissioners shall consider the claim, bill or demand and, if they consider that it should be paid by the county, they shall so notify the controller. If the controller thereafter continues to refuse his approval no payment shall be made ...


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