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SAMSON v. HARVEY'S LAKE BOROUGH

March 7, 1995

DANIEL SAMSON, Plaintiff
v.
HARVEY'S LAKE BOROUGH, ET AL., Defendants



The opinion of the court was delivered by: THOMAS I. VANASKIE

 MEMORANDUM

 This action arises out of the termination of Plaintiff Daniel Samson ("Samson") as the zoning officer/building inspector for Harvey's Lake Borough. Samson sued the Harvey's Lake Borough Council and individual council members under 42 U.S.C. § 1983 for violation of his right to due process, with jurisdiction premised on 28 U.S.C. § 1343. He has also asserted state law claims for wrongful termination and breach of contract. Samson's claims are premised on the contention that he could be removed from his position with the borough only "for cause."

 The Defendants have moved to dismiss the Complaint or, in the alternative, for summary judgment. The Defendants claim that dismissal of this action is warranted because Samson was an independent contractor whose relationship with the borough could be terminated for any reason. The Defendants thus assert that Samson's position with the borough did not enjoy Fourteenth Amendment due process protection.

 Because I find that Samson's position with the borough was not subject to a "for cause" termination restriction, the Defendants' motion for summary judgment as to Samson's civil rights claims will be granted. In addition, Samson's state law claims will be dismissed on the authority conferred by 28 U.S.C. § 1367(c)(3).

 BACKGROUND

 On January 2, 1990, Harvey's Lake Borough appointed Samson as its "Zoning Officer/Building Inspector." Samson was reappointed to the position in January of 1991, 1992 and 1993. See Dkt. Entry 13, Exhibits 1 and 2.

 At the time of Samson's appointment, the BOCA National Building Code was the effective Harvey's Lake Borough building ordinance. *fn1" (Ord. No. 2-77, adopted February 24, 1977.) The BOCA Code contains the technical construction standards for the borough. It also contains a variety of potential employment positions created in a "Department of Building Inspection." Among the potential employment positions is that of "Building Official." *fn2" From 1977 to February, 1993, the BOCA Code and its ordinances were in effect, but Harvey's Lake Borough did not employ a "building official" as contemplated by the BOCA Code.

 The building official as defined in the Code is a significant municipal administrative position. The building official is supervised by and reports to the Borough Council and supervises employees. *fn3" Harvey's Lake Code § 7-3(7) (which adopted the modified BOCA Code) states the qualifications of the building official:

 
The Building Official shall be generally informed on good engineering practice in respect to the design and construction of buildings, the basic principles of fire prevention, the accepted requirements for means of egress and the installation of elevators and other service equipment necessary for the health, safety and general welfare of the occupants. *fn4"

 Furthermore, the building official has the authority to "adopt and promulgate rules and regulations to interpret and implement the provisions of this [BOCA] code to secure the intent thereof. . . ." BOCA Code, § 108.6. *fn5"

 The zoning officer/building inspector as defined by 53 P.S. §§ 10614 and 46202(24) is not required to be a borough employee. Section 10614 states that "the zoning officer shall meet qualifications established by the municipality and shall be able to demonstrate to the satisfaction of the municipality a working knowledge of municipal zoning." Furthermore, the zoning officer is charged with administering the zoning ordinance "in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance." 53 P.S. § 10614. Section 46202(24) empowers the borough to appoint a "building inspector" to ensure that construction work conforms with ordinances "relating to buildings and housing, their construction, alteration, extension, repair and maintenance . . . . "

 On February 16, 1993, the Harvey's Lake Borough Council resolved to reorganize several municipal functions, including those of the zoning officer/building inspector and the police. (Dkt. Entry 13, Exhibit 3.) A new position of "Code Enforcement Officer" was created, responsible for enforcement of a variety of municipal ordinances, including the zoning ordinance. The code enforcement officer's responsibilities also included enforcement of trash and grass ordinances and assisting in the preparation of grant applications. In anticipation of the restructuring, Samson was informed, in a letter dated February 15, 1993, that his services with the borough would be terminated. (Dkt. Entry 13, Exhibit 4.) The council appointed Paul Grimes to the position of code enforcement officer.

 Samson commenced this action on June 10, 1993. An Amended Complaint was filed on his behalf on August 26, 1993. The Amended Complaint (Dkt. Entry 8) asserts four causes of action. First, Samson claims that he had a protected property interest in his position that could not be terminated without cause and an opportunity to be heard thereon. Count Two of the Complaint purports to assert a claim for denial of "substantive" due process. Specifically, Samson alleges that he was removed in retaliation for adverse action he had taken against Councilmen William Wilson and Joseph Miscavage in 1991 and 1992. *fn6" Counts Three and Four assert state law claims for wrongful discharge and breach of contract, respectively. Samson named as defendants in all four counts the borough, the borough council, and the members of the borough council.

 On September 30, 1993, Defendants filed a Motion to Dismiss the Amended Complaint or, in the alternative, for Summary Judgment. Accompanying the motion was an "Affidavit of Defendants" (Dkt. Entry 13), which included a number of exhibits. A supporting memorandum of law was filed on October 8, 1993. (Dkt. Entry 14.) Plaintiff filed an opposing brief on January 21, 1994 (Dkt. Entry 17), asserting, inter alia, that genuine disputes of material facts precluded summary adjudication of this case. ...


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