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July 7, 1998

BOROUGH OF SCHUYLKILL HAVEN, BOROUGH COUNCIL OF SCHUYLKILL HAVEN, ALFRED RIZZUTO, in his individual and official capacities, GLENN SATTIZAHN, in his individual and official capacities, and WAYNE BOWEN, in his individ- ual and official capacities, Defendants

The opinion of the court was delivered by: VAN ANTWERPEN


 Van Antwerpen, J.

 July 7, 1998


 The Plaintiff is an active member of the United States Army Reserves and the former Borough Manager of Schuylkill Haven. Defendant Borough of Schuylkill Haven (the "Borough") is a duly organized municipality under the laws of Pennsylvania. Defendant Borough Council of Schuylkill Haven (the "Borough Council") is a duly elected body existing under the laws of Pennsylvania. The remaining Defendants are members of the Borough Council.

 The Plaintiff has asserted eleven causes of actions against the Defendants. These causes of action arise under both state and federal law and relate to the circumstances under which the Plaintiff was removed from his job as Borough Manager of Schuylkill Haven. Jurisdiction is appropriate under 28 U.S.C. §§ 1331 and 1343, and 38 U.S.C. § 4323.


 A. Factual History

 1. Contracts and Ordinances Relating to Plaintiff's Employment

 The Plaintiff was originally hired by the Borough as the Assistant Borough Manager, effective August 1, 1989. In April 1991, he became the Borough Manager. Deposition of Douglas R. Satterfield taken April 14, 1997 ("Satterfield Dep. I") at 21. At the time the Plaintiff became Borough Manager, Borough Ordinance 703 was in effect. This ordinance provided:

The Manager may be removed at any time, for just cause, by a majority vote of all of the members of the Borough Council after a hearing. At least ten (10) days prior to any hearing, the Borough Council shall furnish the Manager with a written statement of the reasons for his intended removal. If the Borough Council elects to terminate the services of the Borough Manager, he shall be given at least thirty (30) days notice in writing of such termination.

 Plaintiff's Exhibit 3.

 On February 14, 1992, the Plaintiff and Borough executed an Employment Agreement which read, in relevant part:

1.1 . . . .After the initial 1.5 year term, this Agreement shall be renewed automatically for successive terms by one year each, unless the Borough Council or Employee gives contrary written notice to the other not less than ninety days in advance of the date on which this Agreement would otherwise terminate. . . .
7.1 The Borough shall have the right, at any time upon prior written notice of termination satisfying the requirements of Section 7.5, to terminate Employee for just cause.

 Plaintiff's Exhibit 4 §§ 1.1, 7.1. The Employment Agreement was extended to cover the period through June 30, 1995. Plaintiff's Exhibit 5.

 In April 1995, Borough Ordinance 703 was repealed by the Borough Council and replaced by Borough Ordinance 944. The new Ordinance provided, "The Borough Manager may be terminated at any time for just cause after a hearing. . . . At least ten (10) days prior to the hearing, the Borough Council shall furnish the Borough Manager with a written statement of the reasons for the proposed termination." Plaintiff's Exhibit 9 § 3. On March 9, 1995, the Plaintiff was informed that his contract, which was set to expire on June 30, 1995, would not be renewed and that he would be employed subject to Ordinance 944 as of July 1, 1995. Plaintiff's Exhibit 10.

 On March 6, 1996, the Borough Council adopted Ordinance 953, repealing Ordinance 944. Ordinance 953 stated, "The Borough Manager shall serve in such position at the discretion of the Borough Council unless and until terminated by resolution upon a majority vote of all members of the Borough Council." Plaintiff's Exhibit 11 § 2.

 2. Plaintiff's Military Activity

 The Plaintiff has been a member of the Army Reserves since 1976. He currently holds the rank of major. As a reservist, the Plaintiff is required to participate in training exercises for one weekend each month and an additional fourteen days per year. Defendant Rizzuto felt that seven weeks (35 work days--15 days military leave plus 20 municipal vacation days) paid leave was excessive and expressed this opinion to others. See Deposition of Alfred Rizzuto taken April 4 and 14, 1997 ("Rizzuto Dep.") at 330-331; Deposition of John Pugh taken April 17 and 21, 1997 ("Pugh Dep.") at 210.

 3. Plaintiff's Request for Additional Vacation Days

 On May 1, 1995, the Borough Council recommended giving the Plaintiff an additional five days vacation. On May 4, 1995, the Plaintiff sent the Borough Council a memorandum requesting an additional ten vacation days, rather than five, and an additional two personal days, thereby bringing his total vacation and personal days to the same level as those of the Assistant Borough Manager. Plaintiff's Exhibit 16. On May 10, 1995, the Borough Council discussed the Plaintiff's request in its monthly meeting. The minutes of the meeting reflect that:

A discussion was held regarding the Borough Manager's request for 12 additional vacation days. Council member Rizzuto stated that the Borough Manager already receives 15 days military leave. The Solicitor explained to Council that Pennsylvania law prohibits discrimination against an employee because he is in the Reserves.
After some additional discussion, the following motion was made: Resolution giving the Borough Manager, Douglas R. Satterfield, five additional vacation days. Messr/ Bolkovich. On roll call Pugh, Rizzuto and Sattizahn voted no. The motion carried. This brings his total vacation days to 20 days.

 Plaintiff's Exhibit 17.

 4. Termination of Plaintiff's Services

 On February 23, 1996, the Plaintiff was ordered to two weeks of annual training. Plaintiff's Exhibit 20. On March 14, the Borough Council was notified by the Plaintiff's Commanding Officer that the Plaintiff's training had been extended to March 31, 1996, for a total of 38 days. Plaintiff's Exhibit 21. The Plaintiff returned to work on April 1, 1996. On April 3, 1996, upon the conclusion of its regularly scheduled meeting, the Borough Council met in executive session. There is some dispute as to what was discussed in this meeting, but it is clear that the Plaintiff was fired from his position as Borough Manager at that time by a vote of six to one.

 5. Explanations for Plaintiff's Termination

 The Plaintiff was not put on notice that his termination from employment would be an issue at the April 3, 1996 meeting. No notes were taken during the executive session. According to the Plaintiff, four issues were discussed as grounds for termination during the executive session: (1) a 10% discount on the water rate for Pottsville Bleach and Dye; (2) an electric rate increase for the school district; (3) alleged paper products overspending; and (4) Council member John Pugh's assertion that the Plaintiff had changed numbers. See Plaintiff's Answer to Defendants' Interrogatory 21.

 In answer to Plaintiff's Interrogatory No. 22, the Defendants listed the following reasons as grounds for the Plaintiff's termination:

Borough Council terminated Plaintiff's employment as the result of an accumulation of incidents over the years, including Plaintiff's management style and his inability to work with the current members of Borough Council. The major items of contention were (1) the loss of the Legislative Initiative grant, (2) the refund of the rate increase to the School District, (3) Plaintiff's insistence on hiring a meter reader for reasons which were not accurate, (4) the PUC rate increase rejection and (5) Plaintiff's incorrect calculation of the North Mannheim Township Authority rate.

 Plaintiff's Exhibit 24 No. 22.

 In response to Plaintiff's Interrogatory No. 21 (requesting a list of all incidents where the Plaintiff was guilty of misconduct or failure to perform his duties), the Defendants submitted a list of eleven incidents. The first five incidents are the same as those allegedly relied upon at the executive session. The remaining six include: (6) Plaintiff's allegedly inaccurate revenue projections, (7) alleged paper products overspending, (8) alleged underbilling of Pottsville Bleach & Dye Company, (9) alleged purchase of used recycling containers at a much higher price than new ones available under a state grant program, (10) allegedly inappropriate involvement with the Army Corps of Engineers involving a proposed flood wall, (11) alleged cooperation with dispatchers in opposing the Borough County's recommendation to join the county's communication system. Plaintiff's Exhibit 24 No. 21. These six items apparently were not raised at the executive session. Rizzuto Dep. at 271-272.

 Defendant Rizzuto testified that the loss of a Legislative Initiative Grant and the issue of paper products overspending were discussed in the executive session. Rizzuto Dep. at 185, 274. Council member Pugh recalled raising the issue of the legislative grant. Pugh Dep. at 155, 161. Council member Christopher Reed could not remember any specific issues being raised. Deposition of Christopher Daniel Reed taken January 2, 1997 ("Reed Dep.") at 57-58. When Defendant Bowen was asked to identify the reasons for the Plaintiff's termination, he made reference to the loss of the legislative grant, the failure to implement the electric rate increase, and the purchase of paper products. Plaintiff's Exhibit 25. Defendant Sattizahn had no independent knowledge of the rate increase to the school district, the loss of the Legislative Initiative Grant, the alleged miscalculation of the North Mannheim Township rate, the Pottsville Bleach & Dye rate discount, or the PUC water rate rejection. Deposition of Glenn Sattizahn taken April 17 and 25, 1997 ("Sattizahn Dep.") at 8-9, 13, 16-17, 24, 29-30, 60, 94, 96.

 Defendant Sattizahn also testified that Defendant Rizzuto and Mr. Pugh raised the issues and did most of the talking at the executive session. Sattizahn Dep. at 139-141. No documents were made available to Council members at the time, nor were any witnesses brought forth. Rizzuto Dep. at 272-273. At the time of the executive session, there was a possibility that the Plaintiff would be called to active duty in Bosnia for six months. This may have been discussed at the executive session. Rizzuto Dep. at 370-371. In the public session following the executive session in which the Plaintiff was terminated, no reasons were given for the termination. Deposition of Douglas R. Satterfield taken August 12, 1997 ("Satterfield Dep. II") at 121.

 In a memorandum dated May 12, 1997, the Borough Solicitor, at the request of the Borough Council, prepared a list of reasons for the termination for public distribution. The memo listed nine reasons, one of which (alleging selective enforcement of Borough ordinances) had not appeared on the list of eleven incidents provided by the Defendants in their response to Plaintiff's Interrogatory No. 21. Plaintiff's Exhibit 27. This memo was released one week prior to the primary election for Borough Council positions, in which the Plaintiff was a candidate.

 Prior to April 3, 1996, the Plaintiff had never been reprimanded or disciplined for any matter while serving as Borough Manager, either orally or in writing. See Transcript of 12/5/96 preliminary injunction hearing at 56.

 6. Relevant Conduct Subsequent to Plaintiff's Termination

 In a joint effort, undertaken as part of their respective campaigns for seats on the Borough Council, Defendants Sattizahn, Bowen, and Rizzuto distributed a flyer which made mention of the Plaintiff:

 Some facts about Doug Satterfield and the the [sic] Satterfield v. Schuylkill Haven Borough Council lawsuit:

 Borough Council voted 6 to 1 to terminate Mr. Satterfield on April 3, 1996 because of poor job performance. Council did not fire him because of his service in the military.

 Mr. Satterfield never had an employment contract when he was terminated in April 1996. In March of 1995 Borough Council voted not to renew his employment contract because it conflicted with the Borough's ordinance that governed the Borough manager's position. In February of 1996, Borough Council voted to revise the existing ordinance because it violated a State Supreme Court Case decision that required municipalities to employ municipal managers under an "at will" status. "At will" means the employer (Council) can hire and fire management at will. No reasons are required for Council to terminate Borough management.

 During the 1996 injunction hearing, Mr. Satterfield testified that he had been seeking employment with another Borough in 1995. In fact in 1995, Mr. Satterfield's [sic] was also actively seeking employment at a local university and at a non profit corporation. If he loves the Borough so much, why did he want to quit his position as Schuylkill Haven's Borough Manager?

 In April of 1996 during a police contact [sic] arbitration hearing, Mr. Satterfield voluntarily testified on behalf of the Borough Police Union and against the Borough. If he loves the Borough so much, why did he do this?

 The entire truth concerning this matter will come out within the next few months. Borough Council's legal counsel has advised us to remain silent to protect the Borough against further legal action. The above information has been heard during legal proceedings, therefore can be released [sic] . Please do not rely on the press to get your information.

 Plaintiff's Exhibit 28 (emphasis in original). This flyer was mailed directly to residents of Schuylkill Haven by the individual Defendants in anticipation of primary elections for Borough Council.

 B. Procedural History

 The Plaintiff filed his complaint in federal court on August 26, 1996. In November, he moved for and was granted leave to file an amended complaint. On November 14, 1996, the Plaintiff filed a motion for a preliminary injunction, which was denied after a hearing on December 5, 1996. The Plaintiff's First Amended Complaint was filed on January 6, 1997. On June 28, the Plaintiff moved for and was granted leave to file another amended complaint, adding two additional defendants. The Plaintiff's Second Amended Complaint (the "Complaint") was filed on August 20, 1997.

 The Defendants filed their Motion for Summary Judgment ("Defendants' Motion") on January 5, 1998. The Plaintiff filed his Memorandum in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Response") on February 27, 1998. The Defendants filed their Reply Brief in Support of Defendants' Motion for Summary Judgment ("Defendants' Reply Brief") on March 27, 1998, and the Plaintiff filed his Brief in Opposition to Defendant's [sic] Reply Brief ("Plaintiff's Reply Brief") on April 7, 1998.


 The Defendants argue that all of the Plaintiff's claims against the Borough Council should be dismissed because the Borough Council is not an entity amenable to suit. Next, the Defendants assert that all claims against the individual Defendants in their official capacities are indistinguishable from claims against the Borough itself, and should therefore be dismissed because they are redundant. The Defendants then make individual arguments for summary judgment based upon each cause of action advanced by the Plaintiff.

 We will first outline the standard which applies to the Defendants' Motion. We will then address the Defendants' argument for dismissing all counts against the Borough Council. Next, we will consider the Defendants' position regarding the dismissal of all counts against the individual Defendants in their official capacities. We will then consider the Defendants' individual arguments opposing the Plaintiff's due process, First Amendment, equal protection, Uniformed Services Employment and Reemployment Rights Act ("USERRA"), breach of contract, defamation and punitive damages claims.

 A. Standard for Summary Judgment

 The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).

 On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record which it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n.3 (quoting Fed. R. Civ. P. 56(e)); see also First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non- moving party must demonstrate the existence of evidence sufficient to support a jury finding in its favor. See Anderson, 477 U.S. at 248-49. This is the standard under which we will review the Defendants' Motion in this case.

 B. Claims Against the Borough Council

 The Federal Rules of Civil Procedure require that,

When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

 Fed. R. Civ. P. 9(a).

 The Defendants have satisfied their burden under this rule by alleging that the Borough Council is not a "political subdivision" as defined by Pa. R. Civ. P. 76, which defines the term to include "any county, city, borough, incorporated town, township, school district, vocational school district or county institution district." The Defendants cite Glickstein v. Neshaminy Sch. Dist., 1997 U.S. Dist. LEXIS 16317, No. 96- CV-6236, 1997 WL 660636 (E.D. Pa. Oct. 22, 1997), for the proposition that only the Borough qualifies as a political subdivision subject to suit under Pa. R. Civ. P. 76 and 2102(b). The Defendants also argue that the inclusion of the Borough Council is redundant, as the Borough would ultimately bear the responsibility for any judgment against the Borough Council.

 Surprisingly, the Plaintiff's only response to this position is to say, "No argument is made herein by Plaintiff." Plaintiff's Response at 20. Because the Plaintiff has failed to scrutinize the Defendants' position, we will, reluctantly, undertake this task for him.

 The question of whether or not the Borough Council is capable of being sued is an interesting one. It seems unlikely that the Borough Council could be sued in state court, given the limited scope of Pa. R. Civ. P. 76. However, Fed. R. Civ. P. 17(b)(1) states "that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States." See also United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 66 L. Ed. 975, 42 S. Ct. 570, (1922). The parties have presented no evidence which would help us to determine whether or not the Borough Council would qualify as such an "unincorporated association." And while several federal courts in this state have allowed suits to proceed against borough councils, we have not been able to find any case which specifically addresses the capacity issue. See e.g., Giles v. Dunmore Borough Council, 1997 U.S. Dist. LEXIS 3322, No. 96- CV-1419, 1997 WL 129308 (M.D. Pa. Mar. 18, 1997); Matlock v. Pen Argyl Borough, Pen Argyl Borough Council, et al., 1996 U.S. Dist. LEXIS 2673, No. 94- CV-0831, 1996 WL 101587 (E.D. Pa. Mar. 7, 1996); Sager v. Burgess and Borough Council of Pottstown, et al., 350 F. Supp. 1310 (E.D. Pa. 1972). Fortunately, the Defendants have argued that the Borough Council is also a redundant party in this case. Because the Defendants are entitled to summary judgment on the strength of this argument, we need wade no further into the choice-of-law quagmire.

 We find that the Borough Council is a redundant party in this case, as the Borough itself (a named Defendant), would ultimately be liable for any judgment entered against the Borough Council. See Gliskstein, 1997 WL 660636. Therefore, we will grant this portion of the Defendants' Motion and dismiss all claims against the Defendant Borough Council. In doing so, we wish to make it clear that this dismissal in no way prejudices the right of the Plaintiff to pursue his claims based upon the misconduct of the Borough Council. However, since the Borough itself ...

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