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May 21, 2001


The opinion of the court was delivered by: Padova, J.


This matter arises on Defendants' Motion for Judgment on the Pleadings and Plaintiffs' Motion to Amend the Complaint. For the reasons that follow, the Court grants in part and denies in part Defendants' Motion, and grants Plaintiffs' Motion to Amend the Complaint consistent with this memorandum with respect to those counts remaining.

I. Background

Plaintiffs allege the following facts. The City of Reading is a City of the Third Class. In about 1996, the City adopted a new charter, which changed the government from a commission form government to a city charter form of government. The new charter went into effect on January 1, 1996. Under the new charter, the mayor has certain powers to appoint and dismiss certain officials. The managing director also has the power to remove certain officials from the city government.

In 1998-99, a group of citizens began a campaign to persuade the Council to hold a referendum on implementing a comprehensive trash collection program. The referendum was controversial, and spawned a lawsuit, and the formation of a group called the Citizens for Good Government, established by private trash haulers opposed to the comprehensive trash collection proposal. The referendum failed. In 1999, Defendant Joseph Eppihimer ("Eppihimer"), then a member of the City Council, ran for mayor. Eppihimer, who received substantial financial backing from Citizens for Good Government, was an outspoken opponent of the comprehensive trash collection program. He won the election, and took office on January 1, 2000. The managing director, Steven Bonczek, who had been a supporter of comprehensive trash collection, resigned.

At the time that Eppihimer became Mayor of Reading, Plaintiff Michael Katzenmoyer ("Katzenmoyer") was the Property Maintenance Supervisor, and in that capacity was also the Chief Electrician of the City. Katzenmoyer had been elevated to those positions by the Public Works department head, D. Michael Mucha ("Mucha"), who was one of Eppihimer's political opponents. Mucha had also reported potential ethics violations by Eppihimer to the City Solicitor, relating to a 1998 incident in which Eppihimer allegedly campaigned in violation of the city charter.

Katzenmoyer alleges that Defendant Jesus Pena ("Pena"), the Human Resources Director, acting at the direction of Eppihimer, terminated Katzenmoyer from his position. Katzenmoyer claims this termination resulted from his political affiliation and his vocal political support for Eppihimer's opponents. In his original complaint, Plaintiffs brought a number of claims under § 1983, the Fourteenth Amendment, the First Amendment, and state law. Katzenmoyer's wife, Charlotte Katzenmoyer brought a claim of loss of consortium. Defendants moved for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). In responding to Defendants' Motion, Plaintiffs moved to amend the Complaint. In Plaintiff's proposed Amended Complaint, they bring largely the same causes of action, but amend some of the specific allegations. Defendants oppose such amendment on the grounds the amendment would be futile.

At the pre-trial conference held on April 17, 2001, the Court directed the parties to consult regarding the outstanding issues and to attempt to agree to an amended complaint. Defendants' counsel responded with a letter identifying the remaining issues with reference to the Proposed Amended Complaint of March 13, 2001, attached to Plaintiffs' Motion to Amend. Plaintiffs' counsel submitted a letter dated April 23, 2001, identifying those issues still requiring resolution. The parties have been unable to agree to an amended complaint, and request the Court to direct the Plaintiffs to file their amended complaint and to consider a future responsive pleading, or to issue an adjudication on the remaining issues.

In accordance with these submissions, the Court herein decides Defendants' Motion for Judgment with respect to the original Complaint, but grants Plaintiffs leave to amend the Complaint on those Counts for which the proposed Amended Complaint is not futile. Plaintiffs shall file an amended complaint consistent with this memorandum.

II. Legal Standard

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial." Fed.R.Civ.P. 12(c). The Court reviews a motion for judgment on the pleadings pursuant to Rule 12(c) under the same standard as a motion to dismiss pursuant to Rule 12(b)(6). See Constitution Bank v. DiMarco, 815 F. Supp. 154, 157 (E.D.Pa. 1993). Thus, the court must view the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the non-moving party. See National Iranian Oil Co. v. Mapco Int'l, Inc., 983 F.2d 485, 489 (3d Cir. 1992). The court cannot grant judgment on the pleadings "unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Kruzits v. Okuma Machine Tool, Inc., 40 F.3d 52, 54 (3d Cir. 1994) (quoting Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)).

Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleading after a responsive pleading is served only by leave of the court, and "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Although decisions on motions to amend are committed to the sound discretion of the district court, Gay v. Petsock, 917 F.2d 768, 772 (3d Cir. 1990), courts liberally allow amendments when "justice so requires," and when the non-moving party is not prejudiced by the allowance of the amendment. Thomas v. State Farm Ins., Co., No. CIV.A.99-CV-2268, 1999 WL 1018279, at *3 (E.D.Pa. Nov. 5, 1999). An applicant seeking leave to amend a pleading has the burden of showing that justice requires the amendment. Id.

Factors that militate against granting leave to amend are "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). In assessing futility, the Court "applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." In re Burlington Coat Factory, 114 F.3d at 1434. Thus, a court must take all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Id. (standard for motion to dismiss). Leave to file an amendment should only be denied if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (standard for motion to dismiss).

III. Discussion

In their original complaint, Plaintiffs brought eight counts against the City of Reading, the City Council, Eppihimer, and Pena, alleging claims under 42 U.S.C. § 1983 and various state law claims. Defendants filed a Motion for Judgment on the Pleadings on various theories. Plaintiffs in turn filed a combined Response and Motion to Amend the Complaint. Defendants assert that, largely for the same reasons articulated in their Motion for Judgment on the Pleadings, the amendments are futile with respect to the various claims. Counsel for the parties subsequently stipulated to the dismissal of the City Council from the action.*fn1

The Court will address each cause of action in turn as articulated in the original Complaint but, in accordance with the parties' communications to the Court regarding which claims are outstanding, will also address the issues raised in the proposed amendments. Because the parties have stipulated to the dismissal of the City Council, the Court will consider as withdrawn in all respects any motions with respect to claims asserted against the City Council.

A. Counts I and III: Substantive and Procedural Due Process Claims

Defendants move for judgment on Counts I and III, in which Michael Katzenmoyer asserts § 1983-due process claims. In his original Complaint, Plaintiff failed to specify the basis for asserting that he had a protectable property interest. Pl.'s Compl. at ¶ 10. However, in his proposed Amended Complaint, he asserts that he has a protectable property interest in his employment as Chief Electrician, by virtue of the tenure provisions in the Optional Third Class City Charter Law, 53 Pa. Cons. Stat. Ann. § 39407 (West 1998). Defendants contend that notwithstanding section 39407, Michael Katzenmoyer's position was not tenured because the City, under its optional charter, did not choose to apply the provisions of section 39407 to the electrician's position. The Court agrees with Defendants that, as originally drafted, Counts I and III fail to plead a protectable property interest, but disagrees that the redrafted counts suffer from the same deficiency. Accordingly, the Court dismisses Counts I and III in the original Complaint, but grants Plaintiff leave to file the amended counts as contained in the proposed Amended Complaint.

The City of Reading is a third class city organized under the Optional Third Class City Charter Law, 53 Penn. Cons. Stat. Ann. §§ 41101-41625 (West 1998). The Optional Third Class City Charter Law grants cities of the third class the option of adopting a charter, and confers broad powers of self-government and local autonomy subject only to certain limitations prescribed by the act. See 53 Penn. Cons. Stat. Ann. §§ 41101 ff. (West 1998); Greenberg v. Bradford City, 248 A.2d 51, 53 (Pa. 1968). Section 303 of the law, for example, allows cities organized under the act to "[o]rganize and regulate its internal affairs and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation . . ." 53 Pa. Cons. Stat. Ann. § 41303(1) (West 1998). Section 41304 further provides that "[a]ll grants of municipal power to cities by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the city." 53 Pa. Cons. Stat. Ann. § 41304 (West 1998).

Defendants contend that the tenure provisions of section 39407 do not apply, because the City's home rule Charter does not specifically adopt the tenure provisions with respect to Katzenmoyer's position. The Court disagrees that the absence of specific adoption of the tenure provisions in the Charter means that the tenure ...

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