The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Andrew Baker ("Baker"), a police officer formerly employed by Defendant, Borough of Port Royal ("Port Royal"), filed a three count complaint pursuant to 42 U.S.C. § 1983 claiming Port Royal violated his due process rights. Baker argues that Port Royal did so by dissolving its police force in bad faith instead of providing him a pre-termination, "just cause" hearing. The first two counts seek relief based on Baker's alleged property interest in continued employment as a Port Royal police officer. Baker argues that one of two Pennsylvania statutes creates this property interest. The third count seeks a writ of mandamus under Pennsylvania law requiring Port Royal to re-establish its police force, reinstate Baker's employment, and pay him damages.
We are considering Port Royal's motion to dismiss Baker's complaint for failing to state a claim upon which relief may be granted. In the alternative, Port Royal moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Additionally, Baker seeks to remove Count III from his complaint. For the reasons discussed below, we will notify the parties of our intent to convert Port Royal's motion to dismiss into a motion for summary judgment. Accordingly, we will provide the parties with time in which they may submit additional materials supporting or opposing summary judgment. Finally, we will treat Baker's complaint as amended to remove Count III.
Baker was a full-time Officer in Charge of the Borough of Port Royal Police Department until August 1, 2004. Baker alleges that the Port Royal Police Department had two other officers: Richard Curran and Mary Woods. When Officer Curran resigned sometime in 2003, Port Royal moved Officer Woods from a part-time to a full-time position. Port Royal did not fill Officer Curran's vacated position, and it remained open until the police department's dissolution in August 2004.
In addition to its law enforcement duties in the Borough of Port Royal, the police department served Fermanagh Township and Mifflintown Borough under contracts negotiated between the municipalities. Baker's claim pertains to the circumstances surrounding the loss of these law enforcement contracts and Port Royal Borough Council's ultimate decision to dissolve the police department on August 1, 2004.
Prior to dissolving the police department, Port Royal purportedly lost its law enforcement service contracts with both Fermanagh Township and Mifflintown Borough. First, in January 2004, Fermanagh Township discontinued its contract for police service. In response to the loss of $26,000 of revenue from that contract, the Borough Council reduced the number of hours of police coverage within Port Royal. At a later Borough Council meeting, the Council approved an increase in the hourly rate charged to Mifflintown for Port Royal's police services, and in response, Mifflintown terminated its contract with Port Royal effective August 1, 2004.
In July 2004, the Borough Council dissolved Port Royal's police department. Consequently, Baker's position as Officer in Charge of the Port Royal Police Department was eliminated. Baker filed this § 1983 action claiming that Port Royal acted in bad faith. Specifically, Baker claims that the Borough's asserted financial reasons for dissolving the police department were a pretext for its true desire to remove Baker without providing a pre-termination hearing.
According to Baker, Port Royal's pretextual decision violated the Pennsylvania Borough Code or the Police Tenure Act, two Pennsylvania statutes concerning employment of police officers in the Commonwealth of Pennsylvania.*fn1 Baker contends that each of these Pennsylvania statutes requires a hearing for a police officer prior to termination of employment. According to Baker, the pre-termination requirement created a property interest in his employment as Officer in Charge. Baker contends that Port Royal's decision to dissolve the entire police department was made in bad faith and deprived him of this property interest. Therefore, Baker concludes, Port Royal's actions violated his Fourteenth Amendment rights and are actionable under 42 U.S.C. § 1983.
Port Royal has filed a motion to dismiss Baker's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Port Royal's brief in support of its motion alternatively seeks summary judgment and includes an appendix of exhibits containing minutes of relevant Borough Council meetings and the Borough's annual budget.
A. Baker's Amendment of the Complaint to Remove Count III
In Baker's opposition to Port Royal's motion to dismiss, Baker notes that he is "discontinuing his claim under Count III and asks that the Court treat his Complaint as so amended." (doc. 15, p. 3) According to Baker, the relief requested in Count III of his complaint is substantially similar to the relief requested in Counts I and II and is, ...