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McCarthy v. Darman

June 24, 2009


The opinion of the court was delivered by: Joyner, J.


Presently before the Court is Plaintiff's Motion for Partial Summary Judgment on the issue of Defendants' liability under 42 U.S.C. § 1983, Responses thereto, Defendants' Motion for Summary Judgment and Responses thereto. For the reasons set forth below, Defendants' Motion is granted as to all federal claims. Plaintiff's Motion is denied. The Court declines to exercise supplemental jurisdiction over the remaining state claims and thus the state claims are dismissed with leave to Plaintiff to re-file them in state court.


This case arises out of a dispute between the Defendants and the Plaintiff regarding Plaintiff's former position as Chief of Police of the Borough of Kennett Square ("the Borough"). On June 7, 2007, Plaintiff, who at the time was Chief of Police of the Borough of Kennett Square, submitted to one of the Defendants, David Fiorenza ("Fiorenza"), Borough Manager, a letter entitled "Letter of Intent to Retire" and stating six "Proposed Terms and Conditions."*fn1 (Pl.'s Mot. Partial Summ. J. Ex. N.) On June 15, 2007, Plaintiff emailed Mayor Leon Spencer and told the Mayor to publicize Plaintiff's retirement, effective July 31, 2007, at the following week's council meeting. The email stated that "it would be a good idea for [the Mayor] to appoint L[t.] Z[unino] as acting Chief..." and that Plaintiff had given the story to a reporter for the following week's paper. (Def.'s Mot. Summ. J. Ex. F.)

Prior to and after submitting this letter to Fiorenza, Plaintiff and the Township of Kennett Square (the "Township") had discussed the possibility of Plaintiff becoming Chief of Police for the Township's newly created police department. On June 18, 2007, Plaintiff signed an employment contract with the Township that stated, inter alia, that he was to be employed by the Township as a full-time Chief of Police in its police department beginning August 1, 2007, for a period of two years.*fn2

(Def.'s Mot. Summ. J. Ex. I.)

On July 26, 2007, Fiorenza submitted a letter to Plaintiff with the subject line "Employment Status." The letter stated that "the Borough accepts your retirement effective July 31, 2007" and would "process [Plaintiff's] separation date as of July 31, 2007." (Def.'s Mot. Summ. J. Ex. L.) The letter informed Plaintiff that the Borough understood that Plaintiff was taking a position as Chief of Police with Kennett Township starting August 1, 2007, and had signed an employment contract to that effect on or about June 18, 2007. It also stated the Borough's intent to name Lt. Zunino as acting Police Chief effective August 1, 2007. The letter further stated that Plaintiff's "Kennett Square Borough position must be [his] primary employment up to and including [his] date of separation on July 31, 2007," that he was not permitted to hold two full-time jobs simultaneously, and that "[f]ailure to adhere to this standard may lead to the imposition of discipline." (Def.'s Mot. Summ. J. Ex. L.) Additionally, the letter responded to, inter alia, Plaintiff's request for an amendment to his pension plan and discussed the vacation, holiday and personal pay, and compensation time to which the Borough determined Plaintiff was entitled.

On July 30, 2007, the Plaintiff submitted to Fiorenza a letter stating, inter alia, that he did "not intend to retire at any time in the near future." (Pl.'s Mot. Partial Summ. J. Ex. O.) In response, at a special meeting of the Borough Council ("the Council") on August 6, 2007, the Council voted to suspend the Plaintiff with pay. The Council further directed the Solicitor's office "to immediately investigate such further appropriate action which may be warranted including termination, suspension without pay or other disciplinary actions as provided by law." (Pl. M. Partial Sum. J. Ex. U.) A letter of the same date was sent to Plaintiff stating, inter alia, that he was being placed on "administrative leave with pay, effective immediately" and detailing the terms of the administrative leave. (Pl.'s Mot. Partial Summ. J. Ex. N.) Plaintiff responded by letter refusing to accept pay while he was on leave. (Def.'s Mot. Summ. J. Ex. S.)

On August 9, 2007, Fiorenza sent Plaintiff another letter responding to Plaintiff's prior letter, inquiring as to Plaintiff's employment status with the Township, and ordering Plaintiff to respond to the letter within three business days. (Def.'s Mot. Summ. J. Ex. T.) Plaintiff did not respond. On August 22, 2007, Fiorenza sent Plaintiff a letter with the subject line "Loudermill Notice." This letter notified Plaintiff of the "potential for disciplinary action" against him in relation to certain timesheets and in relation to his failure to respond to the August 9, 2007 letter. (Def.'s Mot. Summ. J. Ex. U.) Plaintiff responded by letter dated August 29, 2007. (Def.'s Mot. Summ. J. Ex. V.)

On September 14, 2007, Jeff Darman, President of Borough of Kennett Square Council, sent Plaintiff a letter with the subject line "Second Loudermill Notice." (Def.'s Mot. Summ. J. Ex. W.) This letter stated that Plaintiff "may be subject to disciplinary action" for conduct described in the letter. In a letter dated September 21, 2007, Plaintiff stated, inter alia, that he "reluctantly resigned [his] position as Chief of Police." (Pl.'s Mot. Partial Summ. J. Ex. W.)

On September 21, 2007, Plaintiff also filed suit in this Court alleging a § 1983 claim based on a deprivation of his procedural and substantive due process rights under the Fourteenth Amendment of the United States Constitution and various state claims. The Plaintiff and the Defendants have now both moved for summary judgment.*fn3


Summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden."*fn4 Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).

In conducting our review, we view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). However, there must be more than a "mere scintilla" of evidence in support of the non-moving party's position to survive the summary judgment stage. Anderson, 477 U.S. at 252. "'[A]n inference based on speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment.'" Koltonuk v. Borough of Laureldale, 443 F. Supp. 2d 685, 691 (E.D. Pa. 2006) (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990)).


A. Section 1983 ...

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