stated that in September, 1991, he was advised that his employment contract, which was scheduled to expire in December, 1991, would be "terminated" as of that date (complaint PP 42-43.) Thereafter, the Springfield Board of Commissioners "proposed renewing plaintiff's contract of employment for an additional year" at approximately half-salary. (Id. P 43.) What I held was that Ersek had failed to state a claim for arbitrary and unreasonable termination because he nowhere alleged he had been terminated, actually or constructively. All Ersek alleges is that he was made an offer he considered unattractive, to which he responded by resigning. (Id.) He does not say he attempted a counter-offer, or that this was the Township's final offer, or what, if anything, tranformed the Township's altered-term contract proposal into a termination. In short, Ersek's own narration of the events showed there was no termination, much less one that was arbitrary or unreasonable.
5. Procedural Due Process
Fifth, Ersek asks that I reconsider my decision to dismiss his procedural due process claim without prejudice because he had failed to allege any effort to recover his property through available state post-deprivation proceedings. Ersek contends that: 1) the defendants have not claimed adequate post-deprivation remedies exist; 2) the defendants have not yet "averred or proved they have possession of the property seized from plaintiff"; and 3) Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), does not apply because defendants never said they were unable to give Ersek notice and a hearing before they seized his property. (Plf's Mot. for Reconsideration at 10.)
I am not governed by whether or not defendants claimed post-deprivation remedies exist, so long as I can see that they do by the statute.
Is Ersek seriously contending that a judge can only apply the law which the parties bring to his attention?
With regard to Ersek's second concern, that the defendants have not said they still possess the property, it is Ersek who charged the defendants with "refusing to return" his records (complaint P 40). Upon that belief, Ersek can very appropriately pursue the state post-deprivation remedies which, if adequate, undermine his federal constitutional due process claim.
Finally, whether the defendants say so or not, a hearing prior to a seizure of property pursuant to a search warrant is "not only impracticable, but impossible." Moore v. Warwick Public School Dist. No. 29, 794 F.2d 322, 328 (8th Cir. 1986) (quoting Parratt v. Taylor, 451 U.S. 527, 541, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981)). Clearly, a search warrant would lose its effectiveness if the subject of that warrant were fully apprised of the time of and reason for the search. In such cases, any adequate remedy must be a post-deprivation remedy. Because Ersek fails to state that the remedies provided to him (whether by Pennsylvania Rule of Criminal Procedure 324 or anywhere else) are inadequate to protect his due process rights, his procedural due process claim was dismissed without prejudice.
6. Intentional Infliction of Emotional Distress
Finally, Ersek contends that I should not have dismissed his claim for intentional infliction of emotional distress because it, too, satisfied the federal notice pleading requirements. As explained above, however, I dismissed the claim because it was unintelligible regarding which defendant damaged Ersek in what way. I have not yet judged the "outrageousness" of defendants' alleged behavior. I have merely stopped a claim from going forward which charges "all defendants" with things the complaint's own factual assertions contradict.
As I have said before, Ersek suffers no prejudice from my order because he can clarify his charges and remove the inherent contradictions. Except for the substantive due process claim which I have dismissed on the merits, the entire complaint may be re-drafted and re-filed.
An order follows.
ORDER - June 18, 1993, Filed
AND NOW, this 17th of June, 1993, plaintiff's motion for reconsideration of my order dated May 5, 1993, is hereby refused.
BY THE COURT:
J. William Ditter, Jr., J.