only "notice and an opportunity to respond." Loudermill, 470 U.S. at 546. Revealing the identity of the "real decisionmaker" would not be the purpose of such a hearing. Thus, the additional safeguard of a predeprivation hearing would have had little value to Vartan in the context of an action against Chief Justice Nix.
Moreover, we conclude that an adequate postdeprivation remedy exists. Currently pending before the Pennsylvania Board of Claims is plaintiff's claim against the Commonwealth for $ 6,500,000 for breach of the very contract which is the subject of this lawsuit. The Board of Claims maintains exclusive jurisdiction over contract disputes involving the Commonwealth where the amount in controversy exceeds $ 300.
72 Pa. Cons. Stat. Ann. § 4651-4. An appeal from the Board of Claims lies in the Pennsylvania Commonwealth Court. 42 Pa. Cons. Stat. Ann. § 763(a). Plaintiff does not and cannot claim that this available mechanism lacks procedural due process. See DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 596-98 (3d Cir.), cert. denied, 516 U.S. 937, 133 L. Ed. 2d 247, 116 S. Ct. 352 (1995).
Finally, we must consider the burden on the government if "predeprivation process were required." Reich, 883 F.2d at 242. The Commonwealth, of course, is a party to innumerable commercial contracts, large and small. Potentially every contract dispute would become a matter of constitutional dimension. If so, a contract could not be terminated or a payment refused without first holding a due process hearing. The cost, both administrative and judicial, would undoubtedly be enormous if such a requirement were imposed. Id. at 242-43. On the other hand, the only detriment to plaintiff, if his contract claim is meritorious, is some delay in receiving what is due - a fact of life for anyone suing for money damages. Id. at 243. Even then, plaintiff would receive interest to compensate him for any delay. The burden on the government of predeprivation hearings in commercial contract cases such as this would clearly outweigh any benefit to the claimant.
In Vartan v. Sobolevitch, 783 F. Supp. 911 (M.D. Pa. 1991), aff'd, 968 F.2d 15 (3d Cir. 1992), Judge Caldwell had before him the identical contract we have present here. Instead of Chief Justice Nix, Vartan there had sued Nancy Sobolevitch, the Court Administrator of Pennsylvania. He claimed she had violated his procedural due process rights in failing to afford him a predeprivation hearing. After engaging in the same analysis we have employed, Judge Caldwell dismissed the complaint for failure to state a constitutional claim. The Court of Appeals affirmed.
Plaintiff argues that Sobolevitch differs from the pending case because the defendant here is of a higher rank - a Chief Justice rather than a Court Administrator. We think plaintiff's focus is misplaced. It is not the identity of the state official doing the harm that is critical. Rather, the significant factor is the nature of the harm to the plaintiff, regardless of which state official has caused it.
In summary, plaintiff has not met the tripartite test for a claim for denial of procedural due process under the Fourteenth Amendment.
We turn next to the question whether Vartan has stated a claim for denial of substantive due process. Even if a property interest is subject to procedural due process, it is not necessarily encompassed within notions of substantive due process. Reich, 883 F.2d at 244. Conversely, our determination that plaintiff failed to state a procedural due process claim does not preclude our consideration of his substantive due process claim. See DeBlasio, 53 F.3d at 598.
To date, the Court of Appeals has provided no clear cut formula for determining whether an interest rises to the level of substantive due process protection, other than stating that "a plaintiff must have been deprived of a particular quality of property interest." DeBlasio, 53 F.3d at 600; accord Homar, 89 F.3d at 1021. Nonetheless, certain precedents exist to guide us.
In Ransom v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 1988), the Court of Appeals refused to recognize a customer's substantive due process right when the City of Philadelphia conditioned the receipt of water and sewer services on the payment of past due charges left by the prior owner. Thereafter, in Reich, the court had to determine whether plaintiff, an attorney engaged by Washington County, Pennsylvania to prosecute the County Controller, was deprived of substantive due process. Reich, 883 F.2d at 239-40. That same Controller, who was acquitted, refused at the end of the case to authorize the payment of the attorney's fees. Id. Instead of suing in state court for what was owed, the attorney brought a civil rights action against the Controller and Washington County in federal court under 42 U.S.C. § 1983. Id. at 240. The district court dismissed the complaint. Id. The Court of Appeals agreed that substantive due process was not implicated. Id. at 244. It concluded, "we can think of no basis for according substantive due process protection to this interest while denying it to those who have had their utility service terminated." Id. at 245.
Plaintiff further argues that the Court of Appeals decisions in DeBlasio and Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir.), cert. denied, 488 U.S. 822, 102 L. Ed. 2d 44, 109 S. Ct. 67 (1988) support his claim for denial of substantive due process. We find both to be inapposite. DeBlasio involved a property owner who sought a variance before a local zoning board. DeBlasio, 53 F.3d at 594-95. He contended that one of the zoning board members acted with a conflict of interest. Id. at 601-02. The court held:
in the context of land use regulation, that is, in situations where the governmental decision in question impinges upon a landowner's use and enjoyment of property, a land-owning plaintiff states a substantive due process claim where he or she alleges that the decision limiting the intended land use was arbitrarily or irrationally reached
Id. Vartan's claim has nothing to do with a governmental decision limiting how he may use his land.
Similarly, Neiderhiser also concerned a property owner who sought an exemption from a local zoning board based on a long-standing prior non-conforming use. Neiderhiser, 840 F.2d at 214. The property owner operated a business that included the sale and rental of "adult movies." Id. The zoning board allegedly denied the exemption because of the subject matter of these movies. Id. at 214-15. He also alleged that there was an attempt to coerce him into a settlement requiring him to comply with an ordinance which unconstitutionally limited his right to freedom of speech. Id. at 215. Reversing the district court for improperly dismissing the complaint, the Court of Appeals held that the plaintiff had stated viable claims under 42 U.S.C. § 1983 based upon the alleged violations of his due process and free expression rights. Id. at 217-18. Again, Vartan's claim does not involve a zoning board's arbitrary decision to limit the use of his property nor does it relate in any way to his rights under the First Amendment.
The parties have cited no precedent in this circuit and we have found none which has given a constitutional gloss to a commercial construction contract and lease such as confronts us here. We do not believe that plaintiff's due process claims under 42 U.S.C. § 1983 are more worthy than those in Ransom, Reich and Unger. Plaintiff's alleged property interest is not of the "certain quality" found in Loudermill, DeBlasio and Neiderhiser.
As a result of our decision, we need not reach the other issues raised by defendant. We will dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.
AND NOW, this 29th day of January, 1997, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the complaint of plaintiff John O. Vartan is DISMISSED for failure to state a claim upon which relief can be granted; and
(2) the motion to strike portions of the complaint is DENIED as moot.
BY THE COURT: