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Savarese v. Agriss

filed as amended september 20 1989.: August 31, 1989.


On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 85-1874

Sloviter, Cowen and Weis, Circuit Judges.

Author: Cowen


COWEN, Circuit Judge

This action, filed pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343, was brought by John Savarese and Edward Flaxman against their former employer, the Monroe County Transportation Authority ("MCTA").*fn1 The defendants include the MCTA, six out of seven members of the MCTA's Board of Directors (including William Agriss, Dan Bogen, Thomas Bonser, Martha Kitchen, Wayne Mazur and John Neff), the County of Monroe, two of the three commissioners of Monroe County (including James Cadue and Thomas Joyce) and the solicitor of the MCTA (Marc Wolfe). App. at 154. The plaintiffs alleged a deprivation of certain rights under the first and fourteenth amendments of the United States Constitution. Specifically, they alleged the defendants fired them based on their political beliefs and in retaliation for a legal action filed by Savarese against various defendants. Because we determine that the district court properly admitted certain statements which defendants allege are hearsay, we will affirm the liability portion of the judgment in favor of the plaintiffs. However, because we determine that the district court's orders regarding various damage awards were erroneous, we will reverse those portions of the judgment.


The Monroe County Transportation Authority was established in 1979 and Savarese was appointed its first director. Edward Flaxman was the controller of MCTA. T.T. at 472. He became an employee of MCTA on June 15, 1984. At the time of his appointment, Savarese was a registered Republican and he has remained a Republican throughout this litigation. The members of the Board of the MCTA ("members") were all appointed by the County Commissioners. T.T. at 1485. From the beginning of Savarese's employment as executive director of the MCTA until January, 1984, the Republican party was the controlling party in the county. Two of the three county commissioners were elected on the Republican party ticket.*fn2 Under the direction of Savarese, the MCTA grew to a point where it had thirty-three employees; operated eighteen buses; and had a budget in excess of $1 million. App. at 214.

In 1983, a number of members of MCTA discussed with Savarese the idea of granting him a contract which would guarantee his employment for a number of years. As a result of those discussions, the members of the MCTA voted unanimously to grant Savarese a five-year contract of employment as executive director, which he accepted. As a result of the election of November, 1983, defendants Cadue and Joyce, members of the Democratic party, comprised the majority of the Board of County Commissioners, effective January 1984. Savarese alleges that after the November election, however, Mazur, Wolfe and the Democratic commissioners conducted a campaign to drive him from his employment as executive director. According to Savarese, part of this campaign included delaying the execution of the written employment contract, and asking Savarese to withdraw his "request" for an employment contract. App. at 8.

Over a period of time, the new Democratic majority replaced all of the members of the MCTA with people who had either social, political or business associations with the majority commissioners and were registered Democrats. In June, 1985, defendant Bogen became the chairman of the MCTA. Within one year, however, Bogen died. During this same period of time, Bogen suggested to Savarese and his wife that it would be wise if they changed their registration from the Republican to the Democratic party. App. at 456. Savarese's wife, thinking that it would stabilize her husband's position, changed her registration to the Democratic Party. Savarese, however, did not do so.

Although the prior Board felt strongly that Savarese should be given a contract of employment, Bogen indicated that the new commissioners would not offer Savarese such a contract. Savarese was requested to withdraw his request for a contract and he did so. He, therefore, remained in the position of Executive Director without a contract and as employee at will.

At approximately the same time, the MCTA was considering buying a fifteen-acre property known as the "Oak Street site" which was ultimately purchased by Savarese's father-in-law. The purchase resulted in speculation that there may have been some impropriety involving Savarese. Board member Bogen, in an interview with a local newspaper, indicated that Savarese had acted improperly by allegedly serving the interests of his father-in-law rather than the interests of the MCTA by providing his father-in-law confidential information that the Oak Street site was for sale. T.T. at 146-47*fn3 Savarese then filed a libel action against Bogen, among others.*fn4 In the course of this dispute, Bogen made a public statement that there was no longer "room for the two of us" at the MCTA. He felt that Savarese would have to leave as a result of the lawsuit. Also, on the day following the filing of the libel action, an emergency meeting was called by the Board and it voted to suspend both Savarese and Flaxman.

After the controversy concerning the Oak Street site, the County Commissioners instituted an investigation of Savarese through their county solicitor.*fn5 At least one Board member -- namely, defendant Mazur -- met with an MCTA employee and received from her several invoices which allegedly indicated improprieties on the part of Savarese. Mazur, in a telephone call to Flaxman, sought to enlist the aid of Flaxman in securing additional information against Savarese. He indicated that, in exchange for Flaxman's cooperation, Flaxman would be considered as a replacement for Savarese. T.T. at 483. Flaxman, however, refused to assist. Consequently, on October 18, 1985, Flaxman was orally suspended and this suspension was later confirmed by letter the same day. T.T. at 485. On October 22, 1985, the MCTA allegedly caused a report to appear in a local paper stating that the MCTA had suspended Flaxman pending an investigation into allegations of financial improprieties.

On October 25, 1985, the MCTA sent Flaxman a letter notifying him that a hearing would be held on November 12, 1985 concerning his job status. Savarese's hearing was scheduled for the same evening. T.T. at 178. However, Savarese did not receive the statement of charges against him until Friday, November 8. Since this was a holiday weekend, it was nearly impossible for Savarese to obtain access to records or to properly meet with witnesses to prepare for the Tuesday hearing. Despite his requests for a continuance, Savarese was forced to proceed. On November 13, 1985, the directors fired Savarese.*fn6 In light of the way Savarese's hearing was handled, Flaxman refused to attend his own hearing. The hearing proceeded without him, however, and he was also terminated. The MCTA also caused an article to appear in the same local paper stating that Flaxman had been terminated for mishandling MCTA funds and records.

The plaintiffs, in their complaint, sought legal and equitable relief. Savarese made three claims against the defendants: (1) that his termination was caused by his affiliation with the Republican Party and hence violated the First Amendment; (2) that his suspension and termination was caused by the fact that he brought a libel action against the Chairman of the Board, Dan Bogen, and several other parties and thus violated the First Amendment; and (3) that the procedures used by the MCTA to terminate him violated his due process rights. App. at 155. Flaxman claimed that the defendants deprived him of a liberty interest in his good name and reputation without due process of law and that his first amendment rights were violated by defendants' political firings. App. at 162. In an amended complaint Savarese requested reinstatement with back pay, compensatory damages, punitive damages, costs and attorneys fees. App. at 13. Flaxman requested compensatory damages, punitive damages, costs and attorneys fees. App. at 16.

The claims for legal relief were presented to a jury while the equitable claims were decided by the district judge following the rendering of the jury verdict. After a thirteen-day trial, the jury returned a verdict for plaintiffs.*fn7 Because the judge wanted time to review the issue of punitive damages, the jury was recessed rather than discharged. App. at 191.

On June 17, 1987, following the reconvening of the jury for determination of the issue of punitive damages, the jury rendered a verdict in favor of the defendants.

On July 1, 1987, the plaintiffs served five motions: to add interest to the verdict; for a new trial on compensatory damages for Savarese; for a new trial on punitive damages; for equitable relief, including reinstatement with back pay and expungement of personnel files; and for attorneys fees and litigation expenses. The court denied Savarese's motion for a new trial on the issue of compensatory damages. The plaintiffs' motion for a new trial on the issue of punitive damages was also denied. In an opinion an order entered June 8, 1988, the district court also denied the defendants' motion for judgment NOV and a new trial.

In its order of July 6, 1988, the district court, considering itself bound by the jury's factual determinations in deciding that the plaintiffs had been impermissibly fired from their positions, ordered the plaintiffs to be reinstated. The court also granted plaintiffs' request for back wages, and ordered that the defendants pay the plaintiffs wages and benefits for the period from June 5, 1987 through July 20, 1988 "at levels equal [to] the wages and benefits they were receiving at the time of their suspension, increased to allow for any raises or changes in benefits which have accrued to similar employees since the date of their suspension from duties." Rec.Dec. No. 196. Additionally, the Court ordered the expungement of the plaintiffs' records concerning their discharge as the jury had found that the hearings accompanying the discharges violated plaintiffs' due process rights. Id.

In an order dated July 7, 1988, the court awarded the plaintiffs attorneys' fees. On July 20, 1988, the MCTA offered to reinstate Savarese if he produced a certificate stating that he had recovered from the emotional illness caused by his firing. Flaxman was reinstated on July 21, 1988; however, Savarese was not reinstated due to his inability to produce the certificate. On August 17, 1988, the plaintiffs moved to enjoin the pending state court action taken against them to recover allegedly misappropriated funds. On August 18, 1988, the back pay award was stayed pending appeal.

On August 23, 1988, the defendants appealed the award of attorneys fees (Appeal No. 88-5671). On September 9, 1988, the court awarded plaintiffs $5,966.07 as damages for delay pursuant to Pennsylvania Rule of Civil Procedure 238.

On November 18, 1988, the court held a hearing on the amount of back pay and benefits to be awarded pursuant to the July 6, 1988 order as the parties were unable to agree on the amount. The court, on December 9, 1988, issued three memoranda and orders: (1) denying Savarese's request for reinstatement; (2) denying plaintiffs' motion to enjoin the state court actions; and (3) awarding Savarese $44,631.23 and Flaxman $31,191.06 in lost wages and benefits. See Rec.Doc. Nos. 290-92. Judgment was entered on December 12, 1988 and the defendants appealed and the plaintiffs cross-appealed. We have jurisdiction of this appeal based on 28 U.S.C. § 1291.



A. The Admissibility of Bogen's ...

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