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Garzella v. Borough of Dunmore

April 13, 2007


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


Presently before the Court are Defendants Borough of Dunmore ("Borough"), Borough of Dunmore Council ("Council"), Borough of Dunmore Civil Service Commission ("Commission"), Borough of Dunmore Police Association ("Association"), Michael Cummings, Joseph Loftus, Thomas Hennigan, Joseph Talutto, Leonard Verrastro, John Barrett, William Gallagher, and Ralph Marino's (collectively "Defendants") Motions for Summary Judgment (Docs. 75 and 78) as to Plaintiff Tony Garzella's Amended Complaint (Doc. 62). For the reasons stated below, Defendants' motions will be granted as to Counts I, II and V of Plaintiff's Amended Complaint. The Court has jurisdiction over Counts I, II and V of Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1331. The Court will decline to exercise its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over Counts III and IV of Plaintiff's Amended Complaint, and will dismiss these claims without prejudice.


The relevant facts, viewed in the light most favorable to Plaintiff, are as follows. Plaintiff has been employed as a police officer for the Borough since 1992. (Garzella Dep. 7:21, May 2, 2006, Doc. 96.) Plaintiff has been a member of the Association, the union that represents Borough police officers, since that time. (Garzella Dep. 10:16-11:18.) Since 1997 or 1998, Plaintiff has worked full-time for the Borough as an "active reserve" police officer. (Garzella Dep. 10:9-10.) As an active reserve police officer, Plaintiff does not receive the same pay rate and pension benefits as "regular" full-time police officers. (Garzella Dep. 19:16-20:24.)

Plaintiff's employment with the Borough is governed by a collective bargaining agreement ("CBA"). (Doc. 78-3.) The CBA provided for a grievance and arbitration procedure requiring that any grievance of a police officer shall first be filed with the Council. (CBA between the Borough of Dunmore and the Dunmore Police Association, Article 18, Doc. 78-3 at 10.) In the event that the Council denies a police officer's grievance, the police officer must then submit the grievance to binding arbitration pursuant to the rules and regulations of the American Arbitration Association. (Id.)

On December 31, 2003, the CBA between the Association and the Borough expired. (Doc. 78-8.) The Association and the Borough were unable to resolve their negotiations directly, and so these parties submitted their dispute to binding arbitration. (Id.)

A panel of the American Arbitration Association rendered an arbitration award on February 4, 2005. (Id.) Pursuant to the new CBA, in order to be promoted to regular, full- time police officer, Plaintiff would be required to take and pass a civil service examination ("the exam"), which would be administered by the Commission. (Id.)

Pursuant to Section 714 of the Rules and Regulations of the Commission, "[t]he minimum passing grade for an examination for any position in the classified service for which a numerical grade is given shall be a score of seventy (70%) per cent, and each applicant for any such position shall score at least seventy (70%) per cent on each element of the examination except for those elements which shall be rated Pass/Fail." (Doc. 68-20.) According to Plaintiff's interpretation of this provision, in order for him to pass the exam, he had to achieve an overall score of at least seventy percent (70%), without regard to how he performed on each individual section of the exam. Conversely, Defendants contend that Plaintiff was required to score at least seventy percent (70%) on each section of the exam -- math, grammar and writing -- in order to pass the exam. It is undisputed that, had Plaintiff passed the exam, he would have become a regular, full-time police officer. (Doc. 78-8.) As such, he would receive a higher rate of pay and become a member of the pension plan. (Id.; see ¶¶ 2. C., 5.)

Plaintiff made his opposition to the exam known to Defendant Hennigan. (Garzella Dep. 19:4-22:19.) Specifically, Plaintiff told Hennigan that he "didn't think it was fair that we were here for so long and we would have to take a civil service test after working almost ten years full-time when there w[ere] other people in the borough that enjoyed a pension, full-time salary, I mean, and they're not civil servants. They never took a test." (Garzella Dep. 22:12-18.)

On May 21, 2005, Plaintiff and twelve other active reserve police officers took the exam. (Doc. 78-14.) Plaintiff received an overall score of seventy-seven percent (77%).

(Id.) However, Plaintiff received a score of sixty percent (60%) on the math section of the exam. (Id.) Due to his math score, the Commission informed Plaintiff that he had failed the exam. (Doc. 78-13.) Plaintiff was one of three (3) active reserve officers to fail the exam. (Doc. 78-14.) The ten (10) officers who passed the exam became regular, full-time officers and were placed above Plaintiff in terms of seniority. (Garzella Dep. 64-13.)

Thereafter, Plaintiff filed a grievance with the Association. (Garzella Dep. 66:23-67:9; Doc. 78-15.) He did not, however, file a grievance with the Council as required by Article 18 of the CBA. Plaintiff did not prosecute any grievance through to arbitration as required by the CBA.

On August 11, 2005, Plaintiff filed a Complaint in this Court. (Doc. 1.) Plaintiff filed an Amended Complaint on August 17, 2006. (Doc. 62.) Therein, Plaintiff alleged that he had been deprived of his rights to procedural due process, freedom of speech and right to petition the government under color of state law, in violation of 42 U.S.C. § 1983. (Id.) Plaintiff also alleged state law claims against the Association for breach of duty of fair representation and against the Borough for breach of the CBA. (Id.)

On January 4, 2006, the Borough adopted a resolution providing that "any individual seeking employment, continued employment or re-employment as a Police Officer with the [Borough] shall provide verifiable documentation that the individual has passed a Civil Service Examination for entry level Police Officer issued by a Civil Service Commission within the Commonwealth of Pennsylvania." (Doc. 78-20.) The Borough cited "the importance of maintaining a Police Force comprised of competent professionals" as the reason for imposing this civil service qualification. (Id.)

Before the January 2006 resolution was enforced, the Association filed a grievance with the Borough. (Springer Dep. 126:14-127:18, May 9, 2006, Doc. 68-9.) The resolution was vacated on April 24, 2006. (Springer Dep. 126:14-16; Pl.'s Br. in Opp. at 23, Doc. 98.) Plaintiff concedes that the resolution was never enforced against him -- i.e. Plaintiff was not fired because he was not civil service qualified. (Pl.'s Br. in Opp. at 24.)

On September 18, 2006, Defendants filed their Motions for Summary Judgment as to Plaintiff's Amended Complaint. (Docs. 75 and 78.) That same day, Defendants also filed supporting briefs and memoranda of law. (Docs. 76 and 79.) Plaintiff filed opposition papers in early October 2006. (Docs. 98-101.) Consequently, Defendants' motions are fully briefed and now 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 ยง 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 ...

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