The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion for summary judgment (Docket No. 34) filed by defendants Township of Elizabeth (the "Township"), Robert W. McNeilly ("McNeilly"), and William K. Black ("Black") in their individual and official capacities (collectively, "defendants"), with respect to the remaining claims asserted in the first amended complaint ("Am. Compl.") (Docket No. 10) by plaintiffs Michael Beckinger ("Beckinger"), Adam Blake ("Blake"), David Kerestes ("Kerestes"), Paul Saxon ("Saxon"), and Justin Wardman ("Wardman" and together with Beckinger, Blake, Kerestes and Saxon, the "plaintiffs"). The remaining claims*fn1 are asserted in count I against the Township and McNeilly and Black in their individual capacities, pursuant to 42 U.S.C. § 1983 for retaliation and prior restraint in violation of the First Amendment to the United States Constitution; in count V against McNeilly and Black under Pennsylvania law for intentional infliction of emotional distress ("IIED"); and in count VI against McNeilly under Pennsylvania law for slander per se.
II. Procedural Background
On or about February 12, 2008, plaintiffs commenced this action by writ of summons in the Court of Common Pleas of Allegheny County, Pennsylvania and on March 1, 2008, filed a complaint. On March 31, 2008, defendants removed the action to this federal court. (Docket No. 1.) On April 7, 2008, defendants filed a motion to dismiss the complaint. (Docket No. 2.)
On May 19, 2008, plaintiffs filed a first amended complaint, asserting the following claims*fn2
Count I -- pursuant to 42 U.S.C. § 1983 for violation of plaintiffs' rights to freedom of speech and retaliation under the First Amendment to the United States Constitution against the Township, McNeilly and Black; and for violation of plaintiffs' procedural and substantive rights under the Fourteenth Amendment to the United States Constitution against the Township, McNeilly and Black.
Count II -- pursuant to 42 U.S.C. § 1983 for violation of plaintiffs' rights to equal protection under the Fourteen Amendment against the Township, McNeilly and Black;
Count III -- under 43 PA. CONS. STAT. 1423, commonly referred to as the Pennsylvania Whistle Blower Act, against the Township, McNeilly and Black;
Count IV -- breach of contract under Pennsylvania law against the Township;
Count V -- IIED under Pennsylvania law, against the Township, McNeilly and Black;
Count VI -- slander per se under Pennsylvania law against the Township, McNeilly and Black; and
Count VII -- civil conspiracy under Pennsylvania law against the Township, Donald Similo, Joanne Beckowitz, Robert Thomas, Helen Kochan, Edward Gronlund, Robert K. Keefer, Larry Vota, and McNeilly.
On June 9, 2008, defendants filed a motion to dismiss plaintiffs' amended complaint. (Docket No. 13.) On June 30, 2008, defendants filed a supplemental motion to dismiss the amended complaint. (Docket No. 18.) On July 28, 2008, the court dismissed all claims asserted in counts II, IV, and VII, plaintiffs' substantive due process claims asserted in count I, and all claims asserted against the individual commissioners, Donald Similo, Joanne Beckowitz, Robert Thomas, Helen Kochan, Edward Gronlund, Robert K. Keefer, and Larry Vota. See Hr'g Tr. 25-32, Jul. 28, 2008. The court ordered plaintiffs and defendants to further brief the first amendment claims and the procedural due process claims at count I and plaintiffs to brief the state law claims not addressed in their original response. (Id. at 32-33.)
On January 12, 2009, the court noted that no procedural due process claims remained. See Hr'g Tr. 5-6, Jan. 12, 2009. The court ordered the parties to brief the issues related to qualified immunity in light of the opinion in Reilly v. City of Atlantic City, 532 F.3d 216, 221 (3d Cir. 2008), issued by the Court of Appeals for the Third Circuit subsequent to the date of the allegations made by plaintiffs in the amended complaint. See Hr'g Tr. 8-10, Jan. 12, 2009. The court also ordered the parties to brief all the remaining issues in the current briefs. (Id.)
On March 6, 2009, the court granted in part and denied in part defendants' motions to dismiss plaintiffs' amended complaint. See Hr'g Tr. 28-33, Mar. 6, 2009. The court dismissed without prejudice the claims in count III, for violations of the Pennsylvania Whistleblower Act; in count V, for IIED against the Township and the remaining defendants in their official capacities, and in count VI, for slander per se against Black and the Township. Id.
On March 11, 2009, the court directed the parties after conducting fact discovery to file a motion for summary judgment limited to the issues of qualified immunity and high public official immunity.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Defendants filed a statement of undisputed material facts (the "S.F.") (Docket No. 36.). Plaintiffs failed to respond to defendants' statement of undisputed material facts. Therefore, all facts set forth therein are deemed admitted and material pursuant to Local Rule 56.1E.*fn3
A. Relationship of the Parties
During the relevant time period, the Township employed approximately fourteen police officers, including the five plaintiffs. (Am. Compl. ¶¶ 17-21; Answer ¶¶ 2, 12; S.F. ¶¶ 9, 45.) McNeilly was employed by the Township as the police chief (Am. Compl. ¶ 24; Answer ¶ 2) and Black was employed by the Township as the administrative sergeant. (Am. Compl. ¶ 15; Answer ¶ 10.)
In early 2007, the chief of police, McNeilly, and the administrative sergeant, Black, discussed a number of problems associated with the use of Township parking tags to cite vehicle owners in violation of the Townships's parking ordinance. (S.F. ¶ 1.) The parking tags contained an incorrect address for the police station and instructed the recipient to place $5.00 in a designated envelope and place the envelope into a nonexistent box outside the police station. (Id. ¶ 2.) There were no follow-up procedures to ensure that the citations were paid and no procedures for the handling, recording and tracking of cash payments received. (Id. ¶ 3.)
McNeilly and Black concluded that officers should temporarily issue state traffic citations to address parking violations until the problems could be resolved. (Id. ¶ 4.)
On January 16, 2007, Black issued an administrative sergeant memorandum No. 07-06 ("Memo 07-06"), instructing officers to cease using the local citation tags for violations of the Township's parking ordinance and to start using state traffic citations. (Id. ¶ 5.) The memorandum provided:
ADMINISTRATIVE SERGEANT MEMO 07-06 Effective immediately, officers will not use the dated "Police Notice for Parking Violation" tag. The format, to include the department address, is dated. Until further notice, officers will issue state Traffic Citations. (Memo 07-06; S.F. Ex.1A) (Docket No. 36-2.) Memo 07-06 noted administrative problems and reminded officers that it may be necessary to knock on residents' doors prior to issuing a citation to determine whether a vehicle in question was connected to that address and actually in violation of the ordinance. (S.F. ¶¶ 6,7.)
Currently, there is no efficient means to track the old Parking tag. A tag may be issued, but the department has not pursued those that have not been paid, which would result in a state citation. Some have been paid, logged in a book and retained. Others come in to the station to complain about receiving a parking tag, give a reasonable excuse and either leave here feeling worse than when they walked in or managing to explain their way out of the tag.
In order to be fair to all concerned, state tags will be issued and any person who wishes to contest the citation will be directed to do so by requesting a hearing in front of the magistrate.
Officers are reminded that it may be necessary, in some circumstances, to knock on a residents [sic] door to clarify that a vehicle or vehicles in violation are actually connected with that resident, prior to issuing a citation.
(Memo 07-06; S.F. Ex. 1A.) Memo 07-06 did not instruct officers to increase the number of parking citations they otherwise would have issued. (S.F. ¶ 8.)
From January 15, 2007 through January 22, 2007, approximately seventy-five parking citations were issued to Township residents by six of the Township's fourteen police officers, including Beckinger, Saxon, and Wardman. (Id. ¶ 9.) Plaintiffs allege that the tickets were issued at the request of the Township's road department out of concern with snow removal. In 2006, the police department issued a total of seven parking citations. (Id. ¶ 10.) In 2005, the police department issued a total of nineteen citations. (Id. ¶ 11.) The Township's parking ordinance prohibits parking on the street when parking off the street is available. (Id. ¶ 12.) The ordinance provides:
¶409. Parking on Street Prohibited in Certain Circumstances Where Off-Street Parking is Available.
Where off-street parking is available, parking is prohibited on the traveled portion of any street or highway in a residential district where a clear and obstructed width of not less than twenty feet (20) upon the main traveled portion of the said street of highway shall be left free for the passage of other vehicles therein. (Ord. 561, 6/1/1987) (Elizabeth Twp. Ordinance 561, § 409 (June 1, 1987); S.F. Ex.1B; S.F. ¶12.)
In order to determine whether a violation of the ordinance occurred, a police officer needed to conduct a simple investigation prior to issuing a citation. (S.F. ¶14.)
[T]he way the ordinance reads, if at all possible, [a vehicle] has to be parked in the driveway; but there are times when there may be reasons it's not or there might be extenuating circumstances. You don't know, for example, that there was a visiting nurse, just went in, and parked the car on the street to go in and attend to somebody who is getting hospice.
(McNeilly Dep. 42, June 9, 2009; S.F. Ex. 2).
The practice of the Township's police department when an officer received a complaint with respect to an on-street parking issue was for the officer to knock on the door of the residence with which the officer believed the vehicle was associated and inquire about whether the vehicle was associated with the resident and, if so, the reason the vehicle was parked on the street. (S.F. ¶ 13.) In the event the police officer determined that the vehicle was parked in violation of the ordinance, the practice was to direct the owner to move the vehicle, as opposed to issuing a citation. (Id. ¶ 15.)
On January 22, 2007, McNeilly issued a memorandum to each of the officers who had written parking citations in the previous week stating his concern about the sudden increase in the enforcement of the Township's parking ordinance and directing the officers to respond to a list of questions relating to the circumstances under which the parking citations were issued. (Id. ¶ 16.)
It has come to my attention that some officers have recently begun issuing many parking citations throughout the Township. This dramatic increase in citations over a one-week period of time far surpasses the citations written to residents for on-street parking over a period of many years. . . .
In an effort to understand the sudden increase in enforcement of the Township Ordinance I will need you to answer the following.
1. What prompted your sudden increase in writing on-street parking citations?
2. Did anyone provide you with instructions to increase parking citations?
3. Did emergency conditions exist in citing vehicles for parking ...