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Dee v. Borough of Dunmore

March 7, 2007


The opinion of the court was delivered by: A. Richard Caputo United States District Judge


Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). (Doc. 30.) Since a federal question is before the Court pursuant to 42 U.S.C. § 1983, the Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

For the reasons set forth below, Defendants' motion for summary judgment will be granted as to Plaintiff's federal claim. Because the Court will grant summary judgment to Defendants on the federal claim, the Court will decline to exercise supplemental jurisdiction over the remaining state law tort claims, and those claims will be dismissed without prejudice.


Plaintiff Robert K. Dee was employed, at all times relative to this case, as a full - time firefighter with the Borough of Dunmore Fire Department. The Borough of Dunmore and Local Union No. 860 of the International Association of Fire Fighters, AFL-CIO (of which Plaintiff is a member), are subject to a Collective Bargaining Agreement ("CBA"). Dee has been a full-time firefighter with the Borough since January 1, 1988. (No. 05-1343, Doc. 33-2.)*fn1

Via letter of May 20, 2005, the Borough of Dunmore Council ("Borough Council") requested from the Borough Fire Chief, Vince Arnone, a memo outlining the necessary qualifications and certifications for full-time work in the Fire Department. This letter also requested that Chief Arnone provide documentation that each full-time (and active reserve) firefighter had met these qualifications and certifications. (No. 05-1343, Doc. 33-3.) In response, Chief Arnone provided to the Borough Council (at the attention of the Borough Manager, Joseph Loftus), via letter of May 23, 2005, a list of five certifications required of all full-time firefighters. These certifications included "Essentials of Firefighting (Pa. State Fire Academy or equivalent)" and "Emergency Medical Technician (after May 1st, 1988 hire)". (No. 05-1343, Doc. 33-4.) Along with this list of requisite certifications, Chief Arnone provided the Borough Council with copies of all of the full-time firefighters' personnel files. (Id.) On June 28, 2005, the Borough Council, by Mr. Loftus, sent a letter to Chief Arnone stating that after reviewing the training and qualification statements that Chief Arnone had provided, it was revealed that the Plaintiff had "not completed two weeks" of training at the Fire Academy, and "has not obtained the required EMT Certification", and stated that Mr. Dee would be "suspended from the schedule, with pay" pending a Borough Council hearing scheduled for July 6, 2005, eight days later. (No. 05-1343, Doc. 25.)

On June 30, 2005, the Scranton Times-Tribune ran a story with the headline "Firefighters suspended for not completing required training." (No. 05-1342, Doc. 32-14.) The author of the article had secured a copy of the letter from Mr. Loftus to Chief Arnone, but how the writer obtained the letter is in dispute. On July 5, 2005, Plaintiff filed the present action. (No. 05-1342, Doc. 1.) The following day, the Borough Council met and determined that Plaintiff did satisfy the certification requirements under the CBA because he was 'grand-fathered in' and was not required to have the EMT training due to his hire date, and therefore reinstated him to the work schedule. Plaintiff's suspension lasted from June 28 to July 6, 2005, and did not result in any loss of pay or seniority. On July 7, 2005, the Scranton-Times ran another article under the heading "Dunmore firefighters reinstated". (No. 05-1342, Doc. 32-15.)

On July 7, 2005, Plaintiff filed an amended complaint (hereinafter "Complaint"). (No. 05-1342, Doc. 3.) Defendants filed an answer on August 26, 2005 (No. 05-1342, Doc. 9.) On September 20, 2006, Defendants filed the present motion for summary judgment. (No. 05-1342, Doc. 30.)

This motion is fully briefed and ripe for disposition.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the ...

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