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Piecknick v. Com. of Pa.

filed: September 30, 1994.

FRED PIECKNICK; DOROTHY PIECKNICK AND DAN PIECKNICK, TRADING AND DOING BUSINESS AS PIECKNICK TOWING
v.
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA STATE POLICE; COLONEL GLENN WALP, INDIVIDUALLY AND IN HIS CAPACITY AS COMMANDER OF PENNSYLVANIA STATE POLICE; CAPTAIN THOMAS BERRYHILL, INDIVIDUALLY AND IN HIS CAPACITY AS COMMANDER OF TROOP S; SERGEANT DUANE DURHAM, INDIVIDUALLY AND IN HIS CAPACITY AS AN OFFICER OF TROOP S; FERDINAND W. AND DOROTHY PIECKNICK AND DAN PIECKNICK TRADING AND DOING BUSINESS AS PIECKNICK TOWING, APPELLANTS



Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civil Action No. 93-cv-00393).

Present: Becker and Hutchinson, Circuit Judges, and Padova, District Judge*fn*

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants, Fred, Dorothy and Dan Piecknick, operators of Piecknick Towing (collectively "Piecknick"), appeal an order of the United States District Court for the Western District of Pennsylvania dismissing their complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. In their complaint, Piecknick alleged that appellees, the Commonwealth of Pennsylvania, the Pennsylvania State Police, and several officials of the State Police*fn1 (collectively the "State Police"), deprived them of due process of law in violation of the Fourteenth Amendment when the State Police awarded towing jobs on state highways to a towing service which Piecknick alleges was not authorized to receive those jobs under a State Police assigned zone towing policy.*fn2 Piecknick's complaint sought damages pursuant to 42 U.S.C.A. § 1983 (West 1981).

We hold that the facts alleged in Piecknick's complaint fail to set out a deprivation of a property or liberty interest under the Fourteenth Amendment. Therefore, we will affirm the order of the district court, but on different reasoning.

I. Factual & Procedural History

Count I of Piecknick's complaint asserted a civil rights claim under section 1983 based upon a deprivation of due process as guaranteed by the Fourteenth Amendment.*fn3 It alleged that the State Police established a rotational policy and heavy duty service list with specific zones (Zones 1-3) specifying which towing company would be contacted to remove vehicles from accident scenes on interstate highways in Washington County, Pennsylvania. It also alleged that the State Police had established a policy and practice of limiting the assignment of towing services to a designated operator to only one zone. Piecknick is located in Washington County and was assigned to Zone 1. A map outlining the zones as they existed for the past four years and designating the operators in each zone was attached to the complaint.

The complaint alleged Insana Towing ("Insana"), a competitor, was assigned to Zone 2 but has been receiving assignments in Zone 1, the zone in which Piecknick claims it has acquired property or liberty interests from the actions of the State Police. According to the complaint, the State Police began referring towing in Zone 1 to Insana after operating for several years under a policy whereby Piecknick received all towing business in Zone 1.*fn4 Piecknick alleged that it was contrary to past policy and regulations for the State Police to refuse to refer all towing services in Zone 1 to Piecknick and instead to refer towing services to another towing company located in and assigned to a different zone. Piecknick argues that the State Police may not use Insana in Zone 1 because Insana was assigned on the map exclusively to Zone 2. According to Piecknick, this action unreasonably interfered with its right to carry on its business and resulted in a 50%, or $40,000 per year, reduction in its receipts.

The "regulation" that Piecknick relies upon is actually a guideline setting forth procedures for state troopers to follow in placing towing and wrecker calls for abandoned or disabled cars on state highways. The guideline was distributed to local towing services by State Police "to advise service garages of Pennsylvania State Police Policy in regard to wrecker calls in accident cases and laws pertaining to same." Appendix ("App.") at 15a. The guideline also states that "the Trooper shall contact the nearest available agency offering the required service." Id.*fn5 The guideline further states that the troop policy is to "call the nearest available [towing company] for required towing service on a rotational basis." App. at 15a. It states that troop personnel will not recommend a wrecker service and will first ask if a particular wrecker is desired. Id. The communications room supervisor, not the trooper on the road, makes the decision on the nearest available towing service. Id. at 16a. If the nearest available service is unable to immediately respond or does not have the proper equipment to do the job, the next nearest available service will be contacted. Id. This part of the guideline reiterates that "our policy is the nearest available to the scene on a rotational basis," id. at 17a (emphasis added and in original), and also states that if a trooper at the scene makes an informed observation that a particular on-scene wrecking service is unable to safely and expediently see to the removal of a vehicle, he may request the services of the next nearest available service capable of handling the job. Id.

Piecknick claims that it is entitled to receive all towing calls in Zone 1 because it is located closest to the state highway.*fn6 According to the State Police, its towing policy, as expressed in the guideline, does not require exclusive use of only one towing service in each zone. It reasons that this appears from the fact that more than one towing service was assigned to each zone as well as from use of the phrase "rotational basis" and the other provisions in the policy giving a trooper discretion to call another towing service if he or she believes one service may not be able to handle the job.

Piecknick's complaint alleged it complained in writing to the State Police and was later informed that an investigation had been undertaken "under the auspices of [one of the State Police defendant appellees,] Captain Berryhill." Complaint at P 14, App. at 11a. It never received any report of the investigation's findings or response to its attorney's inquiry. The complaint failed to allege that any individual State Police defendants were involved in the decision to use Insana in Zone 1, beyond a general allegation that using Insana on a rotational basis was "ratified and approved by the named officers in a chain of command." Complaint at P 15, App. at 12a.

The State Police moved to dismiss the complaint on several grounds, including lack of subject matter and personal jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and (2) and failure to state a claim under Rule 12(b)(6). Piecknick stipulated to the dismissal of the Pennsylvania State Police in its corporate capacity as a state agency and clarified its intention to limit its claims to those against individual defendants.

In an order dated November 29, 1993, the district court granted the State Police's motion and dismissed the complaint. In an accompanying opinion, the court held that Piecknick had failed to state a claim upon which relief could be granted against any of the defendants. Opinion dated November 29, 1993 at 3. The court first concluded that the section 1983 claims against the individual defendants in their official capacities were barred by the Eleventh Amendment. Id. (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) ("neither a State nor its officials acting in their official capacities are persons under § 1983")). With respect to the individual defendants' personal liability, the court recognized that "government officials performing discretionary functions generally are shielded from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 4 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). The court held that Piecknick's allegations as to the personal liability of the individual defendants "fail to sufficiently allege a violation of clearly established statutory or constitutional rights of which a reasonable person would have known." Id. Thus, it ...


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