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ALBRECHTA v. BOROUGH OF WHITE HAVEN

December 4, 1992

THOMAS ALBRECHTA, Plaintiff
v.
BOROUGH OF WHITE HAVEN, Defendant


Kosik


The opinion of the court was delivered by: EDWIN M. KOSIK

MEMORANDUM

Before the court is a motion for summary judgment filed by the defendant, Borough of White Haven ["White Haven"]. The plaintiff, Thomas Albrechta ["Albrechta"] has filed an opposition brief, and the motion is ready for disposition.

 I. Background

 On September 18, 1989, Albrechta began working as the Chief of Police of White Haven pursuant to an agreement entered into with White Haven Borough Council ["Council"]. No contract was formally entered into at that time. On December 14, 1989, Albrechta and White Haven entered into a written contract of employment. *fn1" Pursuant to the contract, the term of employment would be from September 18, 1989 to December 31, 1992. Paragraph three of the contract also provided that:

 
Employee agrees and understands, notwithstanding any of the other terms and conditions contained herein, that he shall be on probation from September 18, 1989 to March 17, 1990.

 Additionally, paragraph sixteen provided that "the provisions of the Police Tenure Act shall apply in all cases regarding the removal of the Employee as a Police Officer."

 In January of 1990, five new council members took their positions on Council as a result of the November, 1989 election. At a Council meeting held on March 14, 1990, Council terminated Albrechta's employment contract, three days before the expiration of Albrechta's probationary period. Albrechta was notified of this decision and, subsequently on March 16, 1990, requested a post-termination hearing. This request for a hearing was denied.

 Albrechta filed a complaint commencing this action on January 9, 1991. An amended complaint was filed on March 7, 1991. In response to a motion to dismiss or for a more definite statement filed by White Haven, this court ordered Albrechta to file a second amended complaint in order to comply with the appropriate pleading standards. *fn2" Albrechta filed a second amended complaint on August 5, 1991. *fn3" The second amended complaint raised four counts against White Haven. Count I alleges that White Haven deprived Albrechta of a property and a liberty interest without due process of law. Count II claims that White Haven deprived Albrechta his constitutional rights of free speech and association. Count III alleges that Albrechta has suffered a deprivation of liberty that has imposed a stigma upon his reputation: Finally, Count IV, a pendent state law claim, alleges a violation of Pennsylvania Local Agency Law, 2 Pa. C.S.A. § 553.

 After a period of discovery, White Haven filed a motion for summary judgment on March 6, 1992. Albrechta's brief in opposition was filed on March 31, 1992.

 II. Standard for Summary Judgment

 Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Williams v. Borough of West Chester, 891 F.2d 458, 463-464 (3d Cir. 1989). Summary judgement will not lie "if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the non-moving party. Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982).

 The Supreme Court has held that Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A plaintiff "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. "Such affirmative evidence, regardless of whether it is direct of circumstantial - must amount to more than a scintilla, but amy amount to less [in the evaluation of the court] than a preponderance." Williams, 891 F.2d at 460-61. We must evaluate each of the counts of Albrechta's second amended complaint under this standard.

 III. Discussion

 Count I of the second amended complaint claims that Albrechta was deprived of a liberty and a property interest without due process of law. To succeed on a claim that the removal from a position of public employment ...


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