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Dee v. Borough of Dunmore

December 4, 2008

ROBERT K. DEE, JR., APPELLANT
v.
BOROUGH OF DUNMORE; BOROUGH OF DUNMORE COUNCIL; JOSEPH LOFTUS; THOMAS HENNIGAN; JOSEPH TALUTTO; FRANK PADULA; LEONARD VERRASTRO; MICHAEL CUMMINGS; ALL INDIVIDUALLY AND IN THEIR CAPACITY AS COUNCILMEN



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 05-cv-01342), District Judge: Honorable A. Richard Caputo.

The opinion of the court was delivered by: Rendell, Circuit Judge

PRECEDENTIAL

Argued March 25, 2008

Before: McKEE, RENDELL, and TASHIMA*fn1, Circuit Judges.

OPINION OF THE COURT

Appellant Robert Dee, Jr. appeals from the final order of the United States District Court for the Middle District of Pennsylvania granting summary judgment in favor of Appellees the Borough of Dunmore, the Borough of Dunmore Council, and various Borough officials: Joseph Loftus, Thomas Hennigan, Joseph Talutto, Frank Padula, and Leonard Verrastro (collectively "the Borough"). In June of 2005, after approximately eighteen years of service with the Borough of Dunmore Fire Department, Dee was suspended without notice by the Borough Council based on its determination that he had failed to complete two training requirements. Days later, news of Dee's suspension was published in the Borough's local paper. Eight days after the suspension was initially announced, the Borough Council held a post-suspension hearing, at which it concluded that Dee was in fact in compliance with all applicable training requirements.

Dee brought suit under 42 U.S.C. § 1983, alleging violations of his First, Fifth, and Fourteenth Amendment rights as a result of the Borough's conduct;*fn2 he also included several causes of action under state law. On appeal, Dee challenges the District Court's conclusion that his allegations were insufficient to state a § 1983 claim against the Borough for violating his right to procedural due process as guaranteed by the Fourteenth Amendment. Specifically, Dee argues that the District Court erred in determining that the property and liberty interests alleged in his Complaint did not warrant constitutional protection.

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. For the reasons stated below, we will vacate the District Court's entry of judgment and remand for further proceedings consistent with this opinion.

BACKGROUND

At all times relevant to his Complaint, Dee was employed as a full-time firefighter by the Borough of Dunmore Fire Department. After serving as a volunteer firefighter for approximately three years, Dee was eventually hired full time and, over a span of fifteen years, was promoted through the ranks of the Department, from Lieutenant to Captain to Assistant Fire Chief. As a full-time firefighter, Dee's employment with the Borough was not "at will"; rather it was governed by the terms of the Collective Bargaining Agreement ("CBA") between the Borough and Local Union No. 860 of the International Association of Fire Fighters, AFL-CIO, of which Dee was a member.

On May 20, 2005, Joseph Loftus, the Borough Manager, requested from Frank Arnone, the Borough Fire Chief, a list of the necessary qualifications and certifications for full-time work in the Fire Department according to the CBA, along with documentation that each full-time firefighter had met these qualification. On May 23, 2005, Arnone sent Loftus a memo with the requested list and notified Loftus that all certification information was kept in the Department's personnel file. Three days later, on May 26, Loftus inquired of Arnone as to whether all of the firefighters had completed the identified requirements and then went back to Arnone once again, seeking some additional information. After reviewing the materials he received from Arnone, Loftus determined that Dee had failed to complete two weeks of required training at the Pennsylvania State Fire Academy and did not have the required EMT Certification. Without contacting Dee, and without conducting any further investigation, Loftus conveyed this information to the Borough Council.

On June 27, 2005, relying only on the information provided by Loftus, the Borough Council voted to suspend Dee with pay pending a hearing to be held eight days later. Dee was not present at the Council's vote, nor was he even aware that his personnel file was under review. Once the decision to suspend Dee had been made, Loftus sent a letter to Arnone on June 28th, informing him of the suspension and of the scheduled hearing.

Arnone in turn informed Dee, who learned then for the first time of the charges against him. Dee was immediately removed from the schedule and prohibited from returning to work unless and until his suspension was lifted.

On June 30, 2005, after receiving a copy of Loftus's June 28th letter to Arnone, The Times-Tribune published a story entitled "Firefighters suspended for not completing required training."*fn3 (App. 164.) The article named Dee and Captain Edward Smith as the firefighters with incomplete training records. It also included, inter alia, a quote from Councilman Paul Nardozzo, who stated that he voted against the suspensions because he "d[id]n't think this was looked at ...


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