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February 21, 2003


The opinion of the court was delivered by: Thomas I. Vanaskie, Chief Judge


The incumbent firefighting unit, joined by its associated relief association, the Andreas Volunteer Firefighter's Relief Association (the "Andreas Relief Association"), its Chief, Paul G. Breiner, his daughter, Marsha Breiner, and two other persons associated with Andreas No. 1 — Fire Police Captain Angela Serfass and volunteer firefighter Byron Hess — have commenced this suit against the upstart company; its Chief, Leroy Breiner (no relation to Plaintiffs Paul and Marsha Breiner); other individuals associated with West Penn No. 1; West Penn Township (the "Township"); the Township Chief of Police, James Tierney; a former Township police officer, Brian Johnson; and the Township Secretary, Suzanne Litwhiler. Plaintiffs claim, inter alia, that the removal of the firefighting equipment from the Andreas No. 1 Fire Hall on January 11, 2000, purportedly assisted by the Township police department, as well as the Township's recognition of West Penn No. 1 for firefighting services and the refusal to allocate state funds to Andreas No. 1, violate constitutional rights guaranteed under the First, Fourth and Fourteenth Amendments to the United States Constitution. Angela Serfass has filed a separate claim, asserting that the refusal to allow her to assume the position of Fire Police Captain before she reached the age of 21 was done in retaliation for her association with Paul Breiner and Andreas No. 1. Paul Breiner and Byron Hess have asserted a claim that disciplinary action was taken against them in retaliation for the filing of this lawsuit. Plaintiffs have also asserted state law claims for defamation, malicious prosecution, and civil conspiracy.

Pending in this protracted litigation are motions challenging Plaintiffs' Second Amended Complaint, which was filed following the completion of discovery and without leave of Court. (Dkt. Entries 53 and 55.) Also pending are summary judgment motions contesting the viability of the claims presented under 42 U.S.C. § 1983 and urging that exercise of supplemental jurisdiction over the state law claims be declined in the event that the federal law causes of action are dismissed. (Dkt. Entries 45, 49 and 55.)

Having carefully considered the entire record and the parties' submissions, I have found that Plaintiffs failed to present sufficient evidence to show the requisite involvement by the Township police officers in the removal of the firefighting equipment on January 11, 2000 to support a § 1983 claim, and that, in any event, Plaintiffs' Fourth and Fourteenth Amendment claims concerning the removal of the property are barred under claim and issue preclusion principles arising from Plaintiffs' litigation to final judgment of a related replevin action in state court. As to Plaintiffs' claims concerning the Township's decision to recognize West Penn No. 1 and to not allocate state-provided funds to Andreas No. 1, I similarly have found that Plaintiffs are collaterally estopped from pursuing the alleged constitutional violations by virtue of their pursuit to final judgment of a related declaratory judgment action in state court. Finally, I have found that the First Amendment retaliation claims are either barred by related state court litigation or not factually supported. Because the exercise of supplemental jurisdiction over the remaining state law claims is not warranted, they will be dismissed, without prejudice, and this chapter of the fight among West Penn Township's volunteer firefighters will be brought to a conclusion in this Court.*fn1


Prior to 1999, Andreas No. 1 had been the primary firefighting company for the Township for many years. (Stmt. Of Material Facts in Support of Litwhiler, et al. S.J. Mot. (Dkt. Entry 47) at ¶ 2.)*fn2 In 1999, a number of disgruntled members of Andreas No. 1 left the organization and formed West Penn No. 1. (Id., ¶ 3.) In November of 1999, the Township Board of Supervisors passed Resolution #7, which deactivated Andreas No. 1 and recognized West Penn No. 1 as the exclusive provider of fire protection services in the Township.*fn3 (West Penn Township Stmt. of Material Facts (Dkt. Entry 57) at ¶ 3.)

Pursuant to the bylaws of the Andreas Relief Association, its quarterly membership meeting was to be conducted on January 11, 2000. Paul Breiner, the Relief Association's Vice President, purported to postpone the meeting. A number of Andreas Relief Association members, however, convened in the parking lot of the Andreas No. 1 Fire Hall on the evening of January 11th. Those assembled were essentially the members of the newly formed West Penn No. 1. They were unable to gain access to the Hall at that time because Paul Breiner had changed the locks on the building. Thus, they proceeded to conduct the Relief Association meeting in the parking lot.*fn4

Prior to calling the meeting to order, Leroy Breiner, the President of the Andreas Relief Association and the Chief of West Penn No. 1, summoned West Penn Township Police Officer Brian Johnson and informed Johnson of his intention to have the Relief Association transfer firefighting equipment to West Penn No. 1. (Johnson Dep. at 17-19, 117-30.) According to Officer Johnson, while Leroy Breiner expressed concern that there could be trouble, Officer Johnson did not regard the matter as serious and left the Fire Hall parking lot. (Johnson Dep. at 144-45.)

Plaintiffs dispute Officer Johnson's assertion that he did not remain at the scene. It is, however, undisputed that the Andreas Relief Association voted to transfer possession of a 1976 GMC rescue truck and related equipment to West Penn No. 1. It is also undisputed that members of West Penn No. 1 somehow gained access to the Andreas No. 1 Fire Hall that evening and removed the rescue truck and related equipment.

With that act, the litigation floodgates opened. On January 18, 2000, Andreas No. 1 and several residents of Schuylkill County filed an equity action in the Schuylkill County Court of Common Pleas, docketed to No. S-120-2000. Andreas No. 1 and the Township residents sought deactivation of West Penn No. 1 on the basis that Andreas No. 1 was better equipped to handle fires in the community. Andreas No. 1 also alleged that the Township had improperly transferred funds earmarked for Andreas to West Penn No. 1. Andreas sought a preliminary injunction demanding that the Township re-activate Andreas and immediately adopt another resolution recognizing and authorizing Andreas to fight fires within the municipality. (Ex. "D" to Stmt. of Material Facts of West Penn No. 1 Defendants.)

On January 21, 2000, the Hon. John E. Domalakes of the Court of Common Pleas of Schuylkill County held a conference to address some issues raised in the equity action. At the conference, the Schuylkill County Court "stressed the importance of maintaining viable emergency services to the Township residents and strongly urged the contending parties to attempt to work together in the interest of the Township residents." (J. Domalakes' Op. of April 28, 2000 at 2.) As a result of the conference, a stipulation was placed on the record wherein the parties agreed that Resolution #7 of 1999 would be modified to include both Andreas No. 1 and West Penn No. 1 as fire protection providers. ("Stipulation," Dkt. Entry 48, Ex. 6, p. 3.) The Township, however, reserved its right to make rules and regulations by ordinance for the government of fire companies within the Township and to appoint the Township Fire Chief. (Id., p. 4.) Significantly, the stipulation also provided that all equipment and firefighting apparatus currently in the possession of each fire company, including the 1976 GMC rescue truck, were to remain with each respective company until further order of court. (Id., p. 3) The companies were expressly permitted to utilize this equipment for firefighting and other emergency purposes. (Id.) The stipulation was adopted as an order of court.

In accordance with rights reserved in the stipulation, on February 15, 2000, the Township Supervisors passed Ordinance #4 of 2000. (Dkt. Entry 57, ¶ 5.) "The Ordinance establishe[d], among other things, rules and regulations for the government of fire companies located within the Township boundaries and their officers pursuant to Section 1803(b) of the Second Class Township Code, 53 P.S. § 66803(b)." (J. Domalakes' Op. of April 28, 2000 at 3.) The ordinance further provided that West Penn No. 1 would be the primary provider of emergency services within the Township, while Andreas would be responsible for responding to structure fires. (Id. at 1-2.) The ordinance prohibited all volunteer firefighters from responding to structure fires in their personal vehicles and also provided that if any responder violated the provisions of the ordinance, the responder would immediately be suspended and a hearing would be held to determine what, if any, disciplinary action should be taken. (Id. at 2.)

On March 2, 2000, Andreas No. 1 and its co-plaintiffs converted the equity action to one seeking declaratory relief by filing an Amended Complaint for Declaratory Judgment. (Hereinafter referred to as the "Declaratory Judgment Action.") The Amended Complaint challenged Ordinance #4, asserting that it created a dangerous situation for residents of the Township by limiting the types of fires to which Andreas could respond. (See Dkt. Entry 48, Ex. 8.) In addition, Andreas challenged the Township's authority to transfer funds claimed to be earmarked for Andreas. Andreas No. 1 also sought declaratory relief with respect to the removal of the 1976 GMC rescue truck. Alleging that the vehicle was titled in the name of Andreas No. 1 and that, at a meeting held on January 31, 2000, the Andreas Relief Association had passed a motion calling for the return of the truck and related equipment, Plaintiffs requested that the state court declare "that the title and legal right in the rescue truck is properly vested in the Andreas Fire Company," and that the other firefighting equipment in question "is the property of the Andreas Fire Company." (Amended Complaint in No. S-120-2000, ad damnum clause.)

On April 28, 2000, Judge Domalakes issued an opinion holding that Ordinance #4 of 2000 constituted a "valid exercise of the Township's authority as provided in the Second Class Township Code, case law, and Andreas' own agreement, which resulted in this court's January 21, 2000 Order." (J. Domalakes' Op. of April 28, 2000 at 9.) As to the removal of the rescue truck and equipment, Judge Domalakes concluded that an evidentiary hearing would be required in order to determine "who owned such property initially and how the items came to be transported to West Penn." (Id. at 5.) Judge Domalakes' Order provided that "[e]ither party may certify the matter for trial on the disputed factual issues." (Id. at 11.)

Andreas did not certify the matter for trial. Instead, on May 30, 2000, Andreas moved for reconsideration. On June 28, 2000, Judge Domalakes, while re-affirming his earlier determination that Ordinance #4 of 2000 was a valid enactment, determined that the motion for reconsideration was untimely. Andreas No. 1 did not appeal Judge Domalakes' decision.

On September 28, 2000, Andreas No. 1 and the Relief Association filed a Replevin Action against West Penn No. 1, seeking return of the 1976 GMC rescue truck and firefighting equipment. (Ex. K to West Penn No. 1 S.J. Mot.) The complaint repeated averments that West Penn No. 1 "improperly and illegally" removed the rescue truck, which was titled in the name of Andreas No. 1, and "improperly took possession" of certain equipment and clothing owned by the Andreas Relief Association. (Id., pp. 2-3.) Furthermore, the Andreas Relief Association itself claimed an interest in the rescue truck and averred that on January 31, 2000 it had taken action to effectuate the return of the firefighting vehicle and related equipment. Andreas No. 1 and the Andreas Relief Association sought return of the property, but did not request damages.*fn5

On January 29, 2001, Judge Domalakes conducted a non-jury trial in the Replevin Action, at which time the parties stipulated that West Penn No. 1 had returned the 1976 GMC rescue truck to Andreas on January 20, 2001. (Id.) On March 28, 2001, Judge Domalakes issued his opinion in the Replevin Action. (Ex. N to West Penn No. 1 S.J. Mot.)

Judge Domalakes ruled that the Andreas Relief Association properly conducted a meeting on January 11, 2000 and validly authorized transfer of possession of the firefighting equipment to West Penn No. 1. He rejected, however, the contention that the Andreas Relief Association transferred ownership of the property to West Penn No. 1. Consistent with these findings, Judge Domalakes ruled that West Penn No. 1 had been entitled to use the firefighting equipment "during the period of time that it was authorized by [the Andreas Relief Association] to do so." (Id. at 10.)*fn6 Because the Andreas Relief Association now sought return of the property, Judge Domalakes directed its return to the Andreas Relief Association. Judge Domalakes, however, denied Andreas No. 1's claim to the property.

Andreas No. 1 appealed this aspect of the trial court ruling to the Pennsylvania Commonwealth Court. By unpublished opinion dated October 18, 2001, the Commonwealth Court found that the issue presented to it was different than the main question before the trial court. While the trial court was concerned with whether West Penn No. 1's original possession of the firefighting apparatus was lawful, the question before the Commonwealth Court was whether the property was owned by the Andreas Relief Association or Andreas No. 1. Without disturbing the trial court's finding that possession of the property had been validly transferred to West Penn No. 1, the Commonwealth Court vacated "that portion of the trial court's order that found that the [Andreas Relief] Association had the right to all the apparatus," (Oct. 19, 2001 Op. at 7), and remanded the matter with instructions that the trial court determine who was the owner of the various items.*fn7

This civil rights action with pendent state law claims was commenced on March 31, 2000, while the Declaratory Judgment Action was still pending. The original Complaint asserted five causes of action brought by a combination of Plaintiffs against a combination of Defendants. In Count I, Paul Breiner, Andreas No. 1, and the Andreas Relief Association stated a claim against all Defendants pursuant to 42 U.S.C. § 1983 for violations of their rights and interest in property under the Fourteenth Amendment; their freedom from unlawful searches and seizures under the Fourth Amendment; and their freedom of association under the First Amendment. In Count II, Angela Serfass stated a claim against West Penn Township and Tierney for violation of her First Amendment rights in connection with the decision not to allow her to serve as Fire Police Captain. In Count III, Paul Breiner stated a common law claim against Alan Parker, Sam Soley, Scott Soley, Leroy Breiner, and Suzanne Litwhiler for defamation. In Count IV, Marsha Breiner stated a common law claim against Ernest Boerner for malicious prosecution. In Count V, all Plaintiffs asserted a common law claim against all Defendants for civil conspiracy.

On May 24, 2000, before any responsive pleading had been served, Plaintiffs filed an Amended Complaint (Dkt. Entry 9), which added Byron Hess as a Plaintiff and correctly identified one of the Defendants as "Leroy" Breiner. The Amended Complaint also added Count VI, which is a claim by Paul Breiner and Byron Hess against Leroy Breiner, the Township, and West Penn No. 1 for retaliation for actions allegedly taken after the filing of the original Complaint.

By Order issued July 20, 2000, the deadline for completion of discovery was fixed at February 28, 2001. Amendments of pleadings were to be made by August 31, 2000. Following several enlargements of time, the discovery deadline was extended until August 15, 2001.

Following a telephonic status conference on August 9, 2001, the Court issued an Order granting Plaintiffs until August 31, 2001 to move for leave to file a second amended complaint, and directing that any response to such a motion be filed by September 30, 2001. On August 31, 2001, Plaintiffs, instead of moving for leave to amend, simply filed their "Second Amended Complaint."

The Second Amended Complaint purports to add as a Defendant Paul Datte, the solicitor for West Penn Township. It is alleged that Datte "conspired" with Defendants to remove the rescue truck and to represent West Penn Township in disciplinary proceedings brought against Paul Breiner and Byron Hess. The Second Amended Complaint also added a claim that the refusal to allow Ms. Serfass to take the position of Fire Police Captain denied her equal protection of the laws, in addition to abridging her rights of association. Finally, the Second Amended Complaint added "Count VII," in which it was asserted that the "unlawful events as alleged above, including the defamation of Breiner, the diversion of public monies, the damaging of plaintiffs [sic] equipment, and the superfluous and harassing pseudo disciplinary proceedings were all conducted by defendants in order to deprive plaintiffs of their opportunities and rights to associate and perform public service functions." (Second Am. Compl., ¶ 74.)

The propriety of the filing of the Second Amended Complaint has been challenged by West Penn No. 1 and a number of individual Defendants. (See Dkt. Entry 53, Mot. to Dismiss Amended Compl., or in the Alternative, the Second Amended Compl.) The same grouping of Defendants, hereinafter sometimes referred to as the West Penn No. 1 Defendants, have separately moved for summary judgment on Plaintiffs' § 1983 claims. (Dkt. Entry 49.) Also moving for summary judgment on Plaintiffs' § 1983 claims are West Penn Township (Dkt. Entry 55), and the individual Defendants who were employees of West Penn Township, Suzanne Litwhiler (the Township Secretary), Chief of Police James Tierney, and former police officer Brian Johnson (collectively referred to as the "Township Employees"). (Dkt. Entry 45.)

The motions have been fully briefed. Oral argument was conducted on February 18, 2003. The motions are ripe for decisions.


A. Viability of Plaintiffs' Second Amended Complaint

All three groups of Defendants have challenged Plaintiffs' Second Amended Complaint on procedural grounds.*fn8 Rule 15(a) of the Federal Rules of Civil Procedure authorizes a party to amend a pleading without leave of court under limited circumstances and only once. "Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a) (emphasis added). Plaintiffs, as was their right, filed an amended complaint without leave of court on May 24, 2000. (Dkt. Entry 9.) Plaintiffs, therefore, could not simply file a Second Amended Complaint, as they did on August 31, 2001. This Court's Order of August 9, 2001 merely authorized the filing of a motion requesting leave to file a second amended complaint.*fn9 Authorization to seek leave to amend the pleading was necessary because the deadline for doing so had expired a year earlier. The August 9th Order was clear and unambiguous: Plaintiffs could move for leave to file a second amended complaint. Such a motion would present the proper context for deciding whether discretion should be exercised to allow the addition of a new defendant and a new claim 18 months after suit was brought. Because Plaintiffs never sought leave to amend their pleadings, as required by Fed.R.Civ.P. 15(a) and this Court's August 9, 2001 Order, their Second Amended Complaint must be stricken.

Even if it were assumed that Plaintiffs were seeking leave to amend, the interests of justice would be furthered by denying permission to do so. Rule 15(a) provides a liberal standard — leave of court to amend shall be "freely given when justice so requires." Scattergood v. Perelman, 945 F.2d 618, 626-627 (3rd Cir. 1991). Nevertheless, a court may deny leave to amend on the basis of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies by amendments previously allowed, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Allowance to amend is not intended to be automatic. Dover Steel Co., Inc. v. Hartford Acc. & Indem. Co., 151 F.R.D. 570, 574 (E.D. Pa. 1993).

In this case, Plaintiffs have not provided a satisfactory explanation for their delay in seeking to add Attorney Datte as a Defendant or in asserting a variant of the retaliation claim originally presented in Count VI of their Amended Complaint. Attorney Datte was prominently featured in the Amended Complaint filed in May of 2000. Plaintiffs have proffered no explanation as to why he could not have been deposed before May of 2001. Nor have they offered ...

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