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KATZENMOYER v. CITY OF READING
May 21, 2001
MICHAEL KATZENMOYER AND CHARLOTTE KATZENMOYER
CITY OF READING, PENNSYLVANIA, ET AL.
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.
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.
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
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
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.
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).
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
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
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
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 ...