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Sibio v. Borough of Dunmore

April 18, 2007


The opinion of the court was delivered by: Judge Caputo


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. 27 and 30) as to Plaintiff Jody Sibio's Amended Complaint (Doc. 24). For the reasons stated below, Defendants' motions will be granted as to Count I of Plaintiff's Amended Complaint. The Court has jurisdiction over Count I 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 II and III of Plaintiff's Amended Complaint, and will dismiss these claims without prejudice.


The relevant facts presented in the summary judgment record, viewed in the light most favorable to Plaintiff, are as follows. Plaintiff was employed full-time as an "active reserve" police officer for the Borough until July 1, 2005. (See Sibio Dep. 6:18-7:22; 30:14-32:13, Sept. 18, 2006, Doc. 36-2.) Plaintiff was a member of the Association, the union that represents Borough police officers. (Sibio Dep. 20:10-11.) As an active reserve police officer, Plaintiff did not receive the same pay rate and pension benefits as "regular" full-time police officers. (Sibio Dep. 32:10-13.)

Plaintiff's employment with the Borough was governed by a collective bargaining agreement ("CBA"). (Doc. 33-6.) 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. 33-6 at 20.) 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. 33-5 at 34.) 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. 33-6 at 47.) 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. 33-5 at 34.) As such, he would receive a higher rate of pay and become a member of the pension plan. (Id.; see ¶¶ 2. C., 5.)

On May 21, 2005, Plaintiff and twelve other active reserve police officers took the exam. (Sibio Dep. 20:3; Doc. 33-5 at 23.) Plaintiff received an overall score of seventy-eight percent (78%). (Doc. 33-5 at 23.) However, Plaintiff received a score of fifty percent (50%) on the grammar section of the exam. (Id.) As such, the Commission informed Plaintiff that he had failed the exam. (Doc. 33-6 at 4.) He was one of three (3) active reserve officers to fail the exam. (See Doc. 33-5 at 23.) The ten (10) officers who passed the exam became regular, full-time officers and were placed above Plaintiff in terms of seniority. (Sibio Dep. 24:20-24.)

Thereafter, Plaintiff filed a grievance with the Association. (Sibio Dep. 25:21-27:18; 41:1-47:4.) He did not, however, file a grievance with the Council as required by Article 18 of the CBA. Moreover, Plaintiff did not prosecute his grievance through to arbitration as required by the CBA. Plaintiff claims that the Association chose not to file his grievance with the Council. (Sibio Dep. 25:21-26:21.) Plaintiff resigned as a police officer with the Borough on July 1, 2005. (Sibio Dep. 6:20-23.)

On May 15, 2006, Plaintiff filed a Complaint in this Court. (Doc. 1.) Plaintiff filed an Amended Complaint on November 28, 2006. (Doc. 24.) Therein, Plaintiff alleged that he had been deprived of his rights to procedural and substantive due process 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 February 15, 2007, Defendants filed their Motions for Summary Judgment as to Plaintiff's Amended Complaint. (Docs. 27 and 30.) That same day, Defendants also filed supporting briefs and memoranda of law. (Docs. 28 and 31.) Plaintiff filed opposition papers in early March 2007. (Docs. 36 and 37.) 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 ...

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