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Schimes v. Barrett

March 27, 2008

JOSEPH SCHIMES, PLAINTIFF
v.
THOMAS BARRETT, CHRIS DOHERTY, GARY DIBILEO, ROSEANN NOVEMBRINO, OFFICER JAY SAUNDERS, LEN KRESEFSKI, JERRY PHILLIPS, KATHLEEN RUANE, SHERRY FANUCCI, CITY OF SCRANTON NON UNIFORM PENSION BOARD, CITY OF SCRANTON, MICHAEL SAVITSKY, AND MARGOLIS EDELSTEIN, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court are defendants' motions to dismiss the plaintiff's complaint (Docs. 5-6). Having been fully briefed, the matter is ripe for disposition.

Background

Plaintiff served in the United States Air Force from September 1, 1971 to June 6, 1974. (Complaint (hereinafter "Complt.") at ¶ 20). This service came during the Vietnam War. (Id.). On May 14, 1979, plaintiff began work as a non-uniform employee of the City of Scranton, Pennsylvania. (Id. at ¶ 21). He initially served as a temporary replacement worker, but on March 10, 1980 became a permanent employee eligible to participate in the City's non-uniform pension program. (Id.). He soon thereafter became a member of Local 2462 of the Clerical Workers' Union. (Id.). As of December 2002, plaintiff had been employed by the City for a continuous period of twenty-two years and five months. (Id. at ¶ 22). He had been a contributing member of the Pension fund for twenty-one years and nine months. (Id.).

The five-year collective bargaining agreement between the City of Scranton and the Non-Uniform Clerical Workers' Union was scheduled to expire at midnight on December 31, 2002. (Id. at ¶ 23). On December 24, 2002, Scranton Mayor Chris Doherty circulated a proposed contract to union members. (Id. at ¶ 24). Union members need to approve this offer by December 31. (Id.). The proposed contract contained a provision that offered any employee younger than fifty-five years old who had twenty-five or more years of service to the city a one-time offer to retire by December 31, 2002 with healthcare benefits. (Id. at ¶ 25). The proposal also contained a healthcare provision that eliminated healthcare benefits for employees who retired on or after January 1, 2003. (Id. at ¶ 26). Lisa Moran, the City's Personnel Director, informed Clerical Union Local President Nancy Krake on December 30, 2002 that this offer of retirement at less than age 55 included both healthcare benefits and pension benefits. (Id. at ¶ 27).

The contract that expired on December 31, 2002, permitted workers with twenty-one years of service to purchase ten years of service time. (Id. at ¶ 29).

Members of the local union voted to ratify the new collective bargaining agreement on December 30, 2002. (Id. at ¶ 30). This agreement contained the contract proposals permitting early retirement of employees who were younger than fifty-five years old and had twenty-five years of service. (Id.). Plaintiff, who was younger than fifty-five and had more than twenty-one years of service, alleges that he accepted this one-time offer from the city by retiring on December 31, 2002. (Id. at ¶ 31). He submitted an application for a pension to the City's Non-Uniform Pension Board on that day. (Id. at ¶ 32). On January 13, 2003, Non-Uniform Pension Board Solicitor Michael T. Savitsky wrote plaintiff to inform him that he was ineligible for a pension. (Id. at ¶ 33). This letter, plaintiff claims, did not constitute an adjudication by the board. (Id. ¶ 34). Plaintiff did not receive notice, a hearing or an opportunity to be heard by the Pension Board. (Id.).

Plaintiff had an immediate family member who suffered from a serious medical condition. (Id. at ¶ 35). In need of medical assistance for this person, plaintiff contacted his supervisor at the City to request reinstatement to his employment. (Id.). The City refused to rehire him, leaving him without a job, healthcare or pension. (Id.). Plaintiff then sought a hearing with the Pension Board in an attempt to arrange the purchase of military service time or pension time due to his employment with the City. (Id. at ¶ 36). After repeated attempts to arrange such a hearing, the Board informed plaintiff that his case would be discussed at the NonUniform Pension Board meeting on March 24, 2004. (Id. at ¶ 37). Plaintiff attended this meeting, bringing with him a privately hired stenographer. (Id. at ¶ 38). The Board's secretary, Kay Connolly, informed him that his hearing had been cancelled. (Id.). At this meeting, the Board consisted of Len Kresefski, the representative sent by Mayor Doherty, Jerry Phillips, representative of City Controller Novembrino, Jay Saunders, who represented City Council President DiBileo, and two employee representatives. (Id. at ¶ 39). This board, plaintiff contends, did not meet the statutory requirements. (Id. at ¶ 39). Nevertheless, the members of the board, after a presentation from solicitor Savitsky, voted 4 to 1 to deny plaintiff's pension application. (Id. at ¶ 40). A letter sent on April 22, 2004 by Savitsky to Thomas Barrett, head of the Non-Uniform Pension Board, opined that plaintiff was ineligible to purchase time towards his pension because he was not fifty-five years old. (Id. at ¶ 41).

Plaintiff appealed this decision to the Lackawanna County Court of Common Pleas, arguing that the Board had been improperly constituted when it came to its decision, that he had been denied due process under state and federal law and that the Board's decision was improper. (Id. at ¶ 43). On October 1, 2004, the Court of Common Pleas directed the Board to conduct a hearing within forty-five days. (Id. at ¶ 44). The Board finally held a hearing on plaintiff's pension on February 2, 2005. (Id. at ¶ 45). Present at this hearing were Roseann Novembrino, the City Controller,

Thomas Barrett, the Board President and Jay Saunders, who represented the City Council. (Id.). The Mayor, City Council President and one of the employees representing workers did not attend the meeting. (Id. at ¶ 46). As part of the evidence in the hearing, Solicitor Savitsky introduced a Scranton City Council Ordinance promulgated on February 24, 2003. (Id. at ¶ 49). That ordinance approved a "'one time offer to members of the non-uniform pension plan provided that the member was an active employee of the City of Scranton up to December 31, 2002, had worked for the City of Scranton for twenty five (25) years or more as of December 31, 2002, is less than 55 years of age as of December 31, 2002, and provided that the said member retired by December 31, 2002.'" (Id. at ¶ 50). Plaintiff contends that the language of this ordinance excludes him for eligibility and "is materially different from the language of the offers of December 24 and 30 of 2002." (Id. at ¶ 51). The new language, he alleges, abrogated normal procedures allowing employees to purchase pension time at retirement. (Id. at ¶ 51). Plaintiff argued to the hearing examiner that he should have been able to purchase military service time and pension time, and thus was eligible to retire with pension and health benefits. (Id. at ¶¶ 53-54).

On June 30, 2005, hearing officer Kevin O'Hara recommended that the Board deny plaintiff's application. (Id. at ¶ 55). O'Hara also recommended that Thomas Barrent, the Board President, not participate in the Board's decision. (Id.). He had testified in the hearing against the plaintiff. (Id.). On July 27, 2005, the Board voted to deny plaintiff pension benefits. (Id. at ¶ 56). Plaintiff then filed an appeal with the Lackawanna County Court of Common Pleas, arguing that the Board had improperly denied his pension. (Id. at ¶ 58). The Court sustained his appeal on December 30, 2005, finding that plaintiff was entitled to purchase enough additional service time to qualify for retirement. (Id. at ¶ 59). Plaintiff alleges that sometime in January 2006, Defendants Doherty, Gatelli, Ruane, Fannuci and Novembrino decided together to appeal the Court of Common Pleas decision to Pennsylvania Commonwealth Court. (Id. at ¶ 60). Defendants Savitsky and Margolis then filed a motion for reconsideration in the Court of Common Pleas and an appeal in the Commonwealth Court. (Id.).

Plaintiff contends that the defendants filed their motion for reconsideration in an untimely fashion, and that the court failed to enter a decision on that motion within thirty days of the original decision, as required by Pennsylvania law. (Id. at ¶ 61). Defendants Savitsky and Margolis requested an extension of time to file their brief and record on appeal as they awaited this decision. (Id. at ¶ 63). The Commonwealth Court granted this requested extension, giving the defendants until May 26, 2006 to file their brief. (Id. at ¶ 64). On May 10, 2006, plaintiff, acting pro se, filed a praecipe to strike defendants' motion for reconsideration as untimely. (Id. at ¶ 65). According to the plaintiff, the Clerk of Judicial Records entered this order on the same day, and he served it on defendants Savitsky and Margolis. (Id.). Nevertheless, plaintiff contends, Savitsky and Margolis filed an application for an extension of time to file their brief in the Commonwealth Court, arguing that they await a decision on the motion for reconsideration. (Id. at ¶ 66). Defendants filed this motion, even though they were aware that their reconsideration motion had been stricken in the Court of Common Pleas. (Id.). On May 25, 2006, the Commonwealth Court ordered the defendants to file their brief and the record by June 26, 2006. (Id. at ¶ 67). Defendants filed their brief in a timely fashion. (Id. at ¶ 68)

On July 20, 2006, the Commonwealth Court scheduled oral argument on the Board's appeal for September 14, 2006. (Id. at ¶ 71). Plaintiff filed a motion with the Commonwealth Court on July 24, 2006 requesting permission to file his brief, supplemental record and a request to quash the appeal on August 23, 2006. (Id. at ¶ 72). He aimed to prevent further delays in the case by this motion. (Id.). On August 3, 2006, Defendants Savitsky and Margolis filed a motion in the Commonwealth Court to continue the scheduled oral argument. (Id. at ¶ 73). Defendant Savitsky represented that he had secured a pre-paid vacation for that date. (Id.). Plaintiff alleges that the motion misrepresented his concurrence. (Id.). The Commonwealth Court then rescheduled argument for the December 2006 term. (Id. at ¶ 74). Plaintiff filed a motion for reconsideration of the court's order delaying oral argument, and on August 28, 2006 the court rescheduled argument for November 13, 2006. (Id. at ¶¶ 74-75). On December 18, 2006, the Commonwealth Court affirmed the decision of the Court of Common Pleas, finding that plaintiff was entitled to his pension pursuant to the City's original offer of early retirement. (Id. at ¶ 77). Despite this court victory, plaintiff contends that he has suffered from and continues to suffer from "severe injury, damage, loss, and harm" from "violation of his civil and constitutional rights, physical and emotional injuries, deprivation of property, loss of income, medical expense" and legal expenses. (Id. at ¶ 80).

On May 14, 2007, plaintiff filed the instant complaint. In count one, plaintiff alleges that the individual defendants, in their individual and official capacities, acted under color of state law to deprive him of his procedural and substantive due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The count also contends that Defendant City of Scranton Non-Uniform Pension Board denied plaintiff's due process rights to notice and a hearing about his pension. Count Two alleges that the individual defendants, individually and in their official capacities, violated plaintiff's procedural and substantive due process rights under the Pennsylvania Constitution, and that the Board violated his state due process rights to notice and a hearing on his pension claims. Count Three alleges a deprivation of plaintiff's property rights in his pension against the Board, Mayor Doherty individually and in his official capacity as mayor, the City and Defendant DiBileo, individually and in his official capacity as President of the Scranton City Council and Member of the Non-Uniform Pension Board. Count Four contends that the defendants conspired to deprive plaintiff of his civil rights. Count Five raises an equal protection claim against all of the defendants. Count Six also raises a substantive due process claim, contending that defendants' actions were "calculated, intentional, and deliberate, motivated by bad faith or improper motive." (Id. at ¶ 99). Count Seven alleges that the municipal defendants were aware of the individual defendants' efforts to deprive plaintiff of his property rights and did nothing to prevent such action. (Id. at ¶ 102). As relief, plaintiff seeks damages and an injunction prohibiting the City of Scranton from enforcing certain ordinances and policies.

After service of the complaint, defendants filed motions to dismiss (Docs. 5-6). The parties briefed then briefed the issue, bringing the case to its present posture Jurisdiction As this case is brought pursuant to 42 U.S.C. §1983, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United ...


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