The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court are the parties' motions for summary judgment. Having been fully briefed and argued, the matters are ripe for disposition.
Plaintiff Robert Kadluboski runs a towing company which operates under the name City-Wide Towing. (Defendants' Statement of Undisputed Material Facts Filed Pursuant to Local Rule 56.1 (hereinafter "Defendant's Statement") (Doc. 32) at ¶ 1).*fn1
The dispute in this case surrounds the cancellation of a towing contract between plaintiff and Defendant City of Wilkes-Barre.
Plaintiff first entered into a towing contract with the City on October 15, 1996. (Defendant's Statement at ¶ 3). This contract required that the plaintiff execute all towing duties "in a courteous, professional, good and workmanlike manner." (Id.). The contract also required that the City immediately notify the plaintiff of any problem arising from plaintiff's conduct of the operation, and give him 45 days to cure the problem. (Id.). Failure to solve the problem within 45 days would lead to arbitration conducted by a named neutral third party, identified in the contract as Al Boris. (Id.).
The contract expired in 2000. (Id. at ¶ 4). Plaintiff continued to operate as the exclusive towing company for the city at that time. (Id.). Plaintiff entered into another contract with Defendant City of Wilkes-Barre to conduct the city's towing operations for a five-year period, beginning January 1, 2002 and ending December 31, 2006. (Id. at ¶ 5). The City retained the right to renew the contract on a monthto-month basis for an additional year after the contract ended. (Id. at ¶ 5). That contract named Defendant Ronald Trimble as the neutral arbitrator. (Id. at ¶ 8).
At some time in June 2001 (before the beginning of the second contract), Wilkes-Barre City Council members requested from Assistant Town Clerk Cathy Payne copies of all complaints registered against plaintiff related to his performance of towing activities. (Id. at ¶ 6). Plaintiff disputes the contents of the complaints filed with the City. (Plaintiff's Answer to Defendant's Statement of Material Facts (Doc. 38) (hereinafter "Plaintiff's Answer") at ¶ 6).
By letter dated July 29, 2004, Mayor Thomas Leighton informed plaintiff that his performance under the contract terms was undergoing evaluation. (Defendant's Statement at ¶ 7). Leighton informed plaintiff that a large number of complaints about his work had been lodged and that the City believed he had not performed his work in the courteous, professional and workmanlike fashion required by the contract. (Id.). Plaintiff contends that this correspondence did not cite to any specific complaints or describe the nature of the complaints in general. (Plaintiff's Answer at ¶ 7). He also argues that he had a forty-five day period to cure the complaints cited by defendant. (Id.). Since no further complaints were reported, plaintiff insists that he must have cured the complaints and the contract should not have been terminated. (Id.).
In a letter dated October 12, 2004 and copied to plaintiff, Mayor Leighton requested that Defendant Ronald Trimble, who was the neutral third party arbitrator under the 2002 contract, evaluate plaintiff's performance to determine whether he was in violation of the document's requirements. (Defendants' Statement at ¶ 8). Plaintiff insists that this letter did not reference any specific complaints between July and October 2004. (Plaintiff's Answer at ¶ 8).
Trimble notified the Mayor and plaintiff by letter on November 5, 2004 that he had determined that plaintiff violated the terms of the contract and that City Wide Towing should be terminated as exclusive towing services provider for the City. (Defendants' Statement at ¶ 9). Plaintiff contends that this letter did not cite any specific contract breaches or failures to cure a breach. (Plaintiff's Statement at ¶ 9). Plaintiff also contends that Trimble testified in deposition that he held a hearing regarding plaintiff's performance where only City officials and employees were present. (Id.). Trimble did not give plaintiff notice of this hearing or take any testimony from him. (Id.). Trimble testified at his deposition that he "did not care" what plaintiff had to say about the complaints against him. (Id.).
The contracts that plaintiff signed in 1996 and 2002 both had a clause whereby plaintiff agreed to use arbitration as the sole means for settling disputes under the contract. Plaintiff contends that these provisions do not apply because defendant summarily breached the contract. Defendant likewise contends that the contract he signed did not provide a pre-termination hearing right; plaintiff asserts that this contract should be read to include the requirement that the neutral arbitrator conduct a full hearing before terminating contract rights.
Plaintiff filed the instant action (Doc. 1) on October 19, 2006. The complaint contains two counts. The first, brought pursuant to 42 U.S.C. § 1983, alleges that the cancellation of plaintiff's towing contract with the city violated his procedural due process rights under the 14th Amendment. Plaintiff also alleges that this cancellation was arbitrary, capricious, irrational and contrary to law and thus violates ...