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Truhe v. East Penn Township

January 19, 2007

HERBERT TRUHE, PLAINTIFF,
v.
EAST PENN TOWNSHIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Defendants East Penn Township ("Township"), Board of Supervisors of East Penn Township ("Township Supervisors"), Guy Barry and Todd Deem's (collectively "Defendants") Motion for Summary Judgment (Doc. 19) as to Plaintiff Herbert Truhe's Complaint (Doc. 1). For the reasons set forth below, Defendants' motion will be granted as to Counts I, II, IV, V, VI and VII of Plaintiff's Complaint. The Court has jurisdiction over these counts pursuant to 28 U.S.C. § 1331. The Court will decline to exercise its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over Count III of Plaintiff's Complaint, and will dismiss this claim without prejudice.

BACKGROUND

The facts presented in the summary judgment record are as follows. Plaintiff was appointed Chief of Police for East Penn Township by the Board of Supervisors in 2001. (Def.'s Statement of Material Facts "SMF" ¶ 2, Doc. 20.) Plaintiff received a salary of nine dollars ($9.00) an hour at the time of his appointment. (Def.'s SMF ¶ 3.) Periodically, Plaintiff would receive raises during his employment as Chief of Police, eventually earning a salary of thirteen dollars and sixty cents ($13.60) per hour as of May 23, 2005, Plaintiff's last day of work. (Def.'s SMF ¶¶ 4-5; Plaintiff's Counter-Statement of Material Facts "CSMF" ¶ 5.) When Plaintiff was appointed Chief of Police, the Township employed one other police officer. (Truhe Dep. 16:8-25, Sept. 8, 2006.) However, shortly after Plaintiff began as Chief of Police, the other officer resigned. (Id.) From that point until Plaintiff's termination, he was the only police officer in the Township. (Id.)

During the Spring of 2005, the Township was undertaking to expand its police force into a full-fledged police department. (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 6, 2006, Doc. 33-2 p. 67-69.) To that end, on May 2, 2005, the Board of Supervisors adopted a new set of policies and procedures by which the police department was to run. (Id.; see also Doc. 33-2 pp. 40-66.) On May 6, 2005, William G. Schwab, a Township Supervisor and Police Liaison Supervisor wrote a letter to Plaintiff informing him of the new policies and that these policies would take effect immediately. (Id.) These policies covered disciplinary matters, such as prescribing the punishment for insubordination, neglect of duty, and conduct unbecoming an officer. (Article III, sections 300, 500 and 600, Doc. 33-2 pp. 44-47.) These policies also detailed particular tasks and procedures, including, inter alia, the following which are relevant to the present case: (1) Plaintiff was no longer allowed to use the Township police cruiser to commute from home to work and back, but, rather, the cruiser was to be left at the Township Building (Article X, subsection 4, Doc. 33-2 p. 65); (2) Plaintiff was required to dress in the "summer uniform" prescribed -- that is, a short sleeve shirt with a black tie and police nameplate (Article V, section 505, subsection 3, Doc. 33-2 pp. 57-58); and (3) Plaintiff was required to patrol the entire Township on every shift and to log the roads driven, the mileage, and number of gallons of gasoline used (Article III, section 600, subsection 10, Doc. 33-2 p. 49; Article X, subsections 1, 2 and 4, Doc. 33-2 pp. 64-65).

As a result of the letter, dated May 6, 2005, on May 9, 2005, Plaintiff and Schwab engaged in an argument in which Plaintiff yelled at Schwab, stated that the new policies were "bullshit" and that he "would do whatever [he] wanted to do," and asked Schwab whether he was trying "to stir up trouble." (Truhe Dep. 36:19-20; Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 9, 2005, Doc. 33-2 pp. 73-74.) Plaintiff also called Schwab a "liar." (Id.; Truhe Dep. 36:16-18.)

On May 9, 2005, Schwab sent Plaintiff two letters. One letter concerned the argument they had engaged in earlier that day. (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 9, 2005, Doc. 33-2 pp. 73-74.) In the letter, Schwab stated that he would not be yelled at by his subordinate and that Plaintiff's conduct was unprofessional and could subject him to discipline. (Id.) The second letter concerned Plaintiff's violation of the newly implemented policy requiring him to leave the police cruiser at the police station after his shift, and to not use it for his own personal use, "i.e., the commute at Township expense." (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 9, 2005, Doc. 33-2 p. 75.)

Shortly thereafter, on May 12, 2005, Schwab wrote Plaintiff another letter notifying him that another complaint had been lodged against Plaintiff concerning the newly implemented policies. (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 12, 2005, Doc. 33-2 p. 76.) According to the information Schwab had received, Plaintiff did not comply with the uniform policy requiring him to wear, during the summertime, "a short sleeve shirt with a black tie and police nameplate." (Id.) In closing, Schwab asked that Plaintiff comply with this policy. (Id.)

The very next day, on May 13, 2005, Schwab wrote Plaintiff another letter informing Plaintiff that "[a] special meeting of the Township Board of Supervisors will be held on Wednesday, May 18, 2005 at 7:00 PM at the East Penn Township Social Hall to consider discipline action against you." (Def.'s SMF ¶¶ 7-8.) Schwab listed a number of allegations and accusations made against Plaintiff, including, inter alia, conduct unbecoming an officer, insubordination, neglect of duty, and the disobedience of orders. (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 13, 2005, Doc. 33-2 pp. 77-79.) Schwab also recited a litany of policy violations, including Plaintiff's use of the Township police cruiser for his personal commute, Plaintiff's failure to dress in the prescribed "summer uniform," and Plaintiff's failure to properly patrol the entire Township. (Id.) Schwab closed the letter by stating that Plaintiff would be given "the full opportunity to address each charge" at the meeting. (Id.) Plaintiff received this letter prior to the special meeting. (Def.'s SMF ¶¶ 9-10.)

On May 18, 2005, Plaintiff sent an email message to the Board of Supervisors, informing them that, "on advice of my attorney, I will not be attending [the special meeting]." (Email from Herb Truhe to East Penn Township Supervisors, dated May 18, 2005, Doc. 33-2 p.80.)

At the special meeting, the Board of Supervisors decided to suspend Plaintiff for a period of thirty (30) days, effective at midnight May 18, 2005. (Def.'s SMF ¶ 13.) By way of letter, dated May 20, 2005, Township Solicitor Jim Nanovic informed Plaintiff that he had been suspended. (Letter from James Nanovic, Township Solicitor, to Herb Truhe, Police Chief, dated May 20, 2005, Doc. 33-2 p.81.) Nanovic stated in his letter that Plaintiff "[has] the right to make a written request for a public hearing and . . . the right to make a written answer to the charges. If you make a request for a public hearing, the Board of Supervisors will hold such a hearing." (Id.) Plaintiff did not request a public hearing and did not make a written answer to the charges. (Def.'s SMF ¶ 16.) Plaintiff also did not appeal his suspension to the Court of Common Pleas of Carbon County. (Def.'s SMF ¶ 27.)

On May 27, 2005, Schwab wrote Plaintiff a letter informing him that "the Administrative Committee of the East Penn Township Board of Supervisors met in an executive session on May 25, 2005 to review your conduct, since the time of your suspension." (Letter from William G. Schwab, Police Liaison Supervisor, East Penn Township, to Herb Truhe, dated May 27, 2005, Doc. 33-2 pp. 84-85.) Schwab stated that "[a]s a result of [this] meeting, the Board has determined that there is further conduct that may result in disciplinary action against you." (Id.) Specifically, Schwab informed Plaintiff that he was charged with insubordination for failing to return all Township property during the period of his suspension, as required under the newly implemented policies. (Id.) Schwab continued:

"As a result of your suspension, i[t] has also come to our knowledge that you have failed to keep a daily log since March 17, 2005 that is to be available for public review. As a result of same, this may jeopardize the township, under the Right to Know Act. Further, we have found that you failed to keep the mileage log from approximately March 3, 2005 to present. As a result of the review of your time records, the police log, your reports, along with the traffic and non-traffic citations, we have found that there are gross discrepancies in the number of hours reflected, the time records, the number of incidences and the traffic and non-traffic citations. The committee considers this to violate Sub-section 4 of Section 600[, Neglect of Duty: Failure to comply with any reasonable order of the Board.] We further believe that the above under Section 500, Sub-section 1, [Insubordination: Refusal to obey a legal and reasonable order of a member of the Board,] is a second offense as well for insubordination which carries with it a fifteen (15) day suspension until dismissal." (Id.) Schwab then stated that the Township Supervisors would hold another meeting, on June 6, 2005, "to consider further discipline action against you." (Id.) Schwab again closed the letter by informing Plaintiff that he would be given a full opportunity to address each charge, and could even request a public hearing. (Id.)

On June 1, 2005, Plaintiff's counsel wrote to Schwab informing him that he was "advising Chief Truhe not to attend the June 6th hearing." (Letter from Donald P. Russo to William G. Schwab, Esquire, dated June 1, 2005, Doc. 33-2 pp. 86-87.) Plaintiff's counsel also stated that he found it difficult to understand how additional charges could be raised against Plaintiff after he had already been suspended and out of work. (Id.) Plaintiff's counsel furthered that "[t]his appears to be a situation where a decision was initially made to terminate [Plaintiff], and then to suspend his pay, and then to seek a flimsy pretext to justify these actions on a post hoc basis." (Id.) Plaintiff's counsel also informed Schwab that a federal civil rights lawsuit would be filed in Scranton soon thereafter. (Id.)

At the June 6, 2005 meeting, the Board of Supervisors voted to terminate Plaintiff's employment as Chief of Police of the Township, effective immediately. (Def.'s SMF ¶¶ 22-23.) Nanovic informed Plaintiff of the Township's decision by letter dated June 9, 2005. (Letter from James Nanovic, Township Solicitor, to Herb Truhe, dated June 9, 2005, Doc. 33-2 pp. 88-89.) In his letter, Nanovic informed Plaintiff of the reasons for his termination, which included insubordination, neglect of duty, and failure to maintain accurate logs, reports and time cards. (Id.) Nanovic closed by stating that Plaintiff has "the right to make a written request for a public hearing and . . . a right to make a written answer to the charges. If you make your request for a public hearing, [the] Board of Supervisors will hold such a public hearing." (Id.) Plaintiff did not request such a public hearing and did not make a written answer to the charges. (Def.'s SMF ¶ 26.) Plaintiff did not appeal his termination to the Court of Common Pleas of Carbon County. (Def.'s SMF ¶ 28.)

On June 21, 2005, Plaintiff filed a Complaint in this Court. (Doc. 1.) This Complaint contained seven (7) counts. In Counts I and II, Plaintiff alleged that he was deprived his Fourteenth Amendment right to due process under color of state law in violation of 42 U.S.C. § 1983. (Doc. 1 ¶¶ 44-70.) In Count III, Plaintiff asserted a state law defamation claim. (Doc. 1 ¶¶ 71-78.) Counts IV, V, VI and VII raised claims under the Pennsylvania Wage Payment Collection Law, 43 P.S. § 260.1 et seq., as well as the federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Doc. 1 ¶¶ 79-94.) Counts IV through VII have been voluntarily withdrawn by Plaintiff. (Pl.'s Br. In Opp. 35, ...


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