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REITZ v. PERSING

August 25, 1993

JOHN REITZ, Plaintiff
v.
DAVID L. PERSING, CHARLES MCANDREWS, WILLIAM MACKLEY, WILLIAM ROHRBACH, JACK C. BUHNER, EVERETT WALTERS, INDIVIDUALLY; DONALD MORGAN; AND THE CITY OF SUNBURY, Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 August 25, 1993

 BACKGROUND

 Plaintiff John Reitz initiated this action with the filing of a complaint on April 15, 1993. Plaintiff alleges that defendants conspired to deprive him of his First Amendment rights to free speech and of his property interest in continued employment in violation of due process.

 Plaintiff worked as a parking ticket officer for the City of Sunbury until he was dismissed on July 6, 1992. He alleges that during his employment, defendants Police Chief McAndrews, Mayor Persing, Councilmen Mackley, Rohrbach and Buhner, and Morgan (the only defendant not a city official) pressured him to discriminate in issuing parking tickets so as to avoid citing their friends. Plaintiff alleges that his employment was terminated because he objected to such unequal enforcement of the law, made comments to reporters regarding parking citations in Sunbury, and planned to file criminal charges against defendant Morgan. Based on these allegations, plaintiff asserts federal claims under the Civil Rights Act, 42 U.S.C. § 1983 (Count I), a pendent state claim of wrongful discharge against the City of Sunbury (Count II), and a pendent state claim of civil conspiracy against all defendants (Count III).

 Before the court is a motion made by defendants Persing, McAndrews, Mackley, Rohrbach, Buhner, Walters, and the City of Sunbury to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(6) and in the alternative for a more definite statement pursuant to Fed. R. Civ. P. 12(e). In his separate motion, defendant Morgan moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and in the alternative for summary judgment. In addition, defendant Morgan moves to dismiss for lack of subject matter jurisdiction and for failure to satisfy the pleading requirements of Fed. R. Civ. P. 8(a)(2).

 For the reasons discussed below, we will grant defendants' motions with respect to the due process claim under 42 U.S.C. § 1983 and we will grant defendant City of Sunbury's motion to dismiss the portion of plaintiff's complaint seeking punitive damages under 42 U.S.C. § 1983. However, we will deny defendants' motions with respect to the remaining federal and state claims and grant them leave to file an answer within twenty days.

 DISCUSSION:

 I. MOTION TO DISMISS PURSUANT TO FED. R. CIV. 12(b)(6)

 1. 12(b)(6) Standard

 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) admits the well-pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). "It is the settled rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Leone v. Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The complaint must be read in a light most favorable to the plaintiff with every doubt resolved in plaintiff's favor. In Re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D. Pa. 1981).

 In their briefs in support of their motions to dismiss, defendants assert that plaintiff has failed to allege a deprivation of any property right in violation of due process. More specifically, defendants assert that plaintiff was an at-will employee of the City of Sunbury and as such had no property interest in continued employment since under the at-will doctrine he could be dismissed for any or no reason at all.

 In order to implicate a property interest protected by procedural due process, one must have more than a need, desire or expectation of it. "He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). In the area of public employment, the Supreme Court has held that a property interest exists when one is a tenured employee or is working under the terms of a contract. See Slochower v. Board of Education, 350 U.S. 551, 100 L. Ed. 692, 76 S. Ct. 637 (1956); Wieman v. Updegraff, 344 U.S. 183, 97 L. Ed. 216, 73 S. Ct. 215 (1952). Plaintiff's complaint, however, alleges no such tenured or contractual employment.

 In the absence of a contract or tenured status, "a property interest in employment can, of course, be created by ordinance, or by an implied contract . . . however, the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 345, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). Applying Pennsylvania state law, the Third Circuit has noted that "as a rule, public employees in Pennsylvania have at-will status and are subject to summary removal by the employing agency." Cooley v. Pennsylvania Housing Finance Agency, 830 F.2d 469, 471 (3d Cir. 1987).

 a. Effect of Non-Uniform Personnel Policy

 While accepting this general rule, plaintiff's brief in opposition asserts that since the city's Non-Uniform Personnel Policy includes a "just cause" provision, it gives him a property interest in continued employment under Pennsylvania law. The Pennsylvania Superior Court has held that such a policy handbook can be enforceable against an employer but only if "a reasonable person in the employee's position would interpret its provisions as evidencing the employer's intent to supplant the at-will rule." Scott v. Extracorporeal, Inc., 376 Pa. Super. 90, 545 A.2d 334, 337 (Pa. Super. 1988). See Martin v. Capital Cities Media, Inc., 354 Pa. Super. 199, 511 A.2d 830 (Pa. Super. 1986); Reilly v. Stroehmann Bros. Co., 367 Pa. Super. 411, 532 A.2d 1212 (Pa. Super. 1987); DiBonaventura v. Consolidated Rail Corporation, 372 Pa. Super. 420, 539 A.2d 865 (Pa. Super. 1988).

 Much like the instant case, plaintiffs in both Scott, supra, and Martin, supra, asserted that a policy handbook containing a similar "just cause" provision evidenced an intent to supplant the at-will rule. The Scott court held, however, that in light of the rest of the handbook, the employer did not intend to supplant the at-will rule. Important to the Superior Court were sections of the handbook setting forth conduct and behavioral standards that if violated "could" result in termination. The Superior Court found that the use of such language suggests that:

 
discretion is left to the employer as to whether the ultimate sanction of discharge should be applied in a given instance . . . [which] is completely at odds with any notion that the provision in question should be read to mean that an employee could be discharged except for objective just cause.

 Scott v. Extracorporeal, Inc., supra, 545 A.2d at 337-38.

 Further, the Martin court found that a handbook that cites general offenses such as "dishonesty" fails to overcome the at-will presumption as such general terms must be read to include the phrase ". . . in the judgment of the employer." Martin v. Capital Cities Media, Inc., supra, 511 A.2d at 838. In reserving some discretion for the employer, a policy handbook serves merely an informational function, setting forth what will and will not be tolerated by the employer; it does not convert ...


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