arrested him nor charged him with other wrongdoing, but have instead waged a two-year campaign to brand him a criminal conspirator and thief. This campaign has included public proclamations of Ersek's guilt, an unsuccessful effort to have him prosecuted by the IRS, and continual harassment at work. (Id. PP 38, 41, 45.)
At the end of December, 1991, Ersek resigned. He claims in his complaint that he was forced to do so because he was tendered a one-year contract with a proposed reduction in salary of approximately 50 percent which made it practically and financially impossible for him to continue in his duties and earn an adequate income. (Id. P 43.) He also alleges that he and Springfield Township had entered into his prior, four-year contract in 1987. At that time, the township, through its Board of Commissioners, "stated to plaintiff that it was the township's intention to have plaintiff finish his career as the golf professional at the Springfield Country Club."
As a result of this alleged campaign of abuse, Ersek claims he has lost all chances of comparable future employment in the golfing community, suffered damage to his reputation, and suffered crippling emotional and physical harm.
(Id. P 47.)
II. The Partial Motion to Dismiss
The defendants move to dismiss three counts of Ersek's complaint: count II, which alleges that defendants' arbitrary and unreasonable termination of Ersek's employment violated his right to substantive due process; count IV, which alleges that defendants' refusal to hold a post-deprivation hearing violated his right to procedural due process; and count IX, which alleges intentional infliction of emotional distress.
Defendants also move under Federal Rule of Civil Procedure 12(e) for more definite statements of the allegations contained in counts V, VI, and VII, concerning conspiracy, defamation, and invasion of privacy.
A. Substantive Due Process
Count II charges defendants with violating Ersek's right to substantive due process by "arbitrarily and unreasonably terminating plaintiff's employment as the golf professional at the Springfield Country Club." (Complaint P 61.) I will dismiss this count because Ersek's own presentation of the facts contradicts his conclusory assertion that his employment was terminated, and it belies his allegation that the township's proposal of a one-year contract was a deliberate and arbitrary abuse of governmental power.
A good portion of the parties' briefs is devoted to the question of whether Ersek needed to establish a constitutionally protected interest in his job before he could claim that the township's acts affecting it violated Ersek's right to substantive due process. In the context of procedural due process, it is clear that a plaintiff must show that the interest being denied or infringed upon is constitutionally significant. In other words, the plaintiff must show the interest was a liberty or property interest entitled to constitutionally adequate procedures. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Midnight Sessions v. City of Phila., 945 F.2d 667, 679 (3d Cir. 1991), cert. denied, 118 L. Ed. 2d 388, 112 S. Ct. 1668 (1992). But in the context of substantive due process, it is arguably sufficient to show only that the government acted arbitrarily -- no matter what type of interest was affected. Ersek contends as much citing Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied, 488 U.S. 868 (1988). In Bello, a building permit case, the Third Circuit held that an individual's right to substantive due process can be violated by any "deliberate and arbitrary abuse of government power." Id. at 1129. See also Pace Resources, Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1085 (3d Cir.) (holding that an arbitrary or irrational zoning regulation can deny substantive due process), cert. denied, 482 U.S. 906 (1987).
However, because I find that Ersek's own facts contradict his allegation that the township's action was arbitrary and unreasonable, I need not reach the question of whether he had to show a protected property interest in his job.
Even if I accept his contention that he did not need to show a protected property interest in order to state a substantive due process claim, I find he has failed to state that defendants acted arbitrarily or unreasonably in proposing to him a one-year contract at a reduced salary. "Substantive due process violations are generally those that are so arbitrary and unreasonable that they lack a substantial relation to the public health, safety and welfare." Felker v. Christine, 796 F. Supp. 135, 143 (M.D. Pa. 1992). Here, the township's "arbitrary" action was offering a one-year contract at a reduced salary to a 59-year-old golf professional with a history of myocardial infarction, angina, and diabetes who had undergone triple bypass surgery seven years before. It is not alleged that the township offered Ersek a "practically and financially impossible" contract for any prohibited or pernicious reason.
Nor was there anything inherently unreasonable in the township's proposal. Ersek had no right to the job: his contract expired in 1991, and the township had no more duty to re-offer his employment than Ersek had to accept. Finally, that the township expressed an "intention" in 1987 to have him finish his career at Springfield Country Club does not make the alleged termination (or altered-term contract proposal) any more unreasonable. The alleged "intention" goes, if anywhere, toward establishing Ersek's protected property interest in the job, for purposes of arguing a violation of substantive or procedural due process. It does not by any means establish a right to the employment, much less some kind of super-right which is inherently "arbitrary" or "unreasonable" to deny. (It is not even clear that the township's offer of a one-year contract constitutes a "denial" of Ersek's expectation to work!)
With regard to the alleged termination of Ersek's employment, Ersek has failed to state a claim of arbitrary governmental behavior actionable under the substantive due process clause, and I will therefore dismiss his claim.
B. Procedural Due Process
Defendants also move to dismiss count IV, in which Ersek alleges "all defendants" violated his procedural due process rights by refusing to hold a hearing at which he might have contested their accusations and recovered his property.
The plaintiff's insistence on lumping all the defendants together in each alleged violation is self-defeating, as well as irresponsible. Does Ersek hold Officer Devaney and former Commissioner Pagano, for example, equally responsible for depriving him of this hearing?
In any event, the question of a procedural due process hearing for the return of Ersek's financial papers is premature. Under Hudson v. Palmer, 468 U.S. 517 (1984), a state employee who deliberately deprives a person of his property without authorization does not violate that person's right to procedural due process so long as the state provides an adequate, post-deprivation remedy. See id. at 533. Here, the question of Ersek's state post-deprivation remedy has not yet been addressed. Pennsylvania Rule of Criminal Procedure 324 provides a remedy for persons aggrieved by the seizure of their personal property. Rule 324(a) reads:
Motion for Return of Property. (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.