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Kavakich v. Borough

June 23, 2008

MARK KAVAKICH, PLAINTIFF,
v.
BENTLEYVILLE BOROUGH, A PENNSYLVANIA MUNICIPALITY, LENA GREENFIELD, HENRY WILSON, FRANK FIEM, WALTER WISNIESKI, KENNETH YANKOWSKY, INDIVIDUALLY AND AS MEMBERS OF BENTLEYVILLE BOROUGH COUNCIL, DENNIS M. MAKEL, INDIVIDUALLY AND AS SOLICITOR FOR BENTLEYVILLE BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: Hay, Magistrate Judge

OPINION AND ORDER

Magistrate Judge Hay

In this action brought pursuant to 42 U.S.C. § 1983, Mark Kavakich ("Kavakich" or "the Plaintiff") contends in the Amended Complaint (Doc. 15) that he was deprived of his Fourteenth Amendment right to procedural due process when his job as Acting Chief of Police for the Bentleyville Borough Police Department was eliminated by the Borough Council's decision to abolish the local police force. Kavakich contends that individual Council members harbored resentment and malice toward him, and that their decision to eliminate the force, although allegedly based on budgetary concerns, was a pretense or subterfuge intended to deprive him of his job without due process. The Defendants' Motion for Summary Judgment (Doc. 45) is pending, and will be granted.

I. BACKGROUND

The Plaintiff began his career with the Bentleyville Police Department as a part-time patrolman. In October 1987, he was promoted to Lieutenant, and, in 2004, was named Acting Chief of Police when Chief Joseph Kurilko ("Kurilko") was disabled by a shoulder injury. (Doc. 49 at 10). The record reflects that Kavakich's employment in Bentleyville was unmarked by personal disputes until the individual Defendants, Lena Greenfield ("Greenfield"), Henry Wilson ("Wilson"), Frank Fiem ("Fiem"), Walter Wisnieski ("Wisnieski"), and Kenneth Yankowsky ("Yankowsky") decided to run as a team for Borough Council in 2005. (Doc. 51 Ex. 3 at 37, Ex.4 at 24).

Following their election, but before taking office, these Defendants met at Yankowsky's home to discuss what action they would pursue once their terms began. (Doc. 51 Ex. 5 at 11). They agreed first to replace Borough Solicitor, John Petresik, with Defendant Dennis Makel ("Makel"). Id. at 12. The group also agreed to vote to disband the Borough Police Department which, at the time, was staffed by the Plaintiff, three part-time officers, and Chief Kurilko, who was still on disability leave. As part of the anticipated dissolution of the Department, the group planned to hire Kurilko, who was ready to return to the force, as Public Safety Coordinator to wind up the administrative affairs of the Department. Id. at 45.

It is undisputed that on January 3, 2006, the Borough Council by a vote of five to two -the five including each of the individual Defendants with the exception of Makel - voted to disband the Bentleyville Police Department. At the same time, the five Defendants voted to hire Kurilko as Public Safety Coordinator. Kurilko's employment ran from month to month and consisted of administrative duties including inventorying and destroying outdated evidence, and reviewing, filing, categorizing or destroying police and non-police files that had "piled up in the holding room." (Doc. 51 Ex. G. at 3). Kurilko worked as Public Safety Coordinator for three months, through April 2006.

Shortly after the Council acted, Kavakich's Teamsters Local filed a grievance with Bentleyville challenging the dissolution. For reasons not apparent in the record, this grievance was withdrawn at the request of the union. (Doc. Ex. F). In January 2006, the union filed a second grievance contending that half of the work performed by Kurilko during his tenure as Public Safety Coordinator was "bargaining unit work" which, before the dissolution, had been performed by Kavakich and other police officers. In a decision dated May 30, 2006, an arbitrator concluded that Kavakich, the most senior Department officer at the time of the disbanding, "should have been recalled from layoff to perform such bargaining unit work." (Doc. Ex. G). In compliance with the arbitrator's decision, Kavakich was paid for half of the hours worked by Kurilko - the half that constituted handling evidence and police files.*fn1

The Complaint in this matter (Doc. 1) was filed in August 2006.

II. THE LAW

A. The Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of some evidence favoring the non- moving party will not defeat the motion. Rather, there must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The court must view the facts of record in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 847 (3d Cir. 1996).

B. Section 1983 Claims Against Individual Council Members

"The first issue in a § 1983 case is whether a plaintiff [has established] a deprivation of any right secured by the constitution." D.R. v. Middle Bucks Area Vocational Tech. School, 972 F.2d 1364, 1367 (3d Cir. 1992). Unless the Plaintiff points to facts sufficient to establish a liberty or property interest, his section 1983 claims fail. The Supreme Court has consistently held that "the existence of a property interest is determined by reference to 'existing rules or understandings that stem from an independent source such as state law.' " Phillips v. Washington Legal Foundation, 524 U.S. 156, 164, (1998) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). "To have a property interest in a job . . . a person must have more than a unilateral expectation of continued employment; rather, [he] must have a legitimate entitlement to such continued employment." Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (paraphrasing Roth, 408 U.S. at 577). ...


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