The opinion of the court was delivered by: (Judge Munley)
Before the court are the parties' motions for summary judgment. Having been fully briefed, the matters are ripe for disposition.
This case concerns the employment of Plaintiff Joseph Schimes with Defendant City of Scranton ("the City"). Plaintiff began working for the City as a non-uniform employee on May 14, 1979. (Statement of Material Facts in Support of Motion for Summary Judgment by Thomas Barrett, Roseann Novembrino, Judy Gatelli, Officer Jay Saunders, Len Kresefski, Jerry Phillips, Kathleen Ruane, Sherry Fanucci, City of Scranton Non Uniform Pension Board and the City of Scranton (Doc. 53) (hereinafter "City Defendants' Statement") at ¶ 1). He started as a temporary replacement worker. (Id.). Plaintiff became a permanent non-uniform employee of the City on March 10, 1980. (Id. at ¶ 4). He thereafter was eligible to participate in the City's non-uniform pension plan. (Id. at ¶ 5). At the time he became a permanent employee, plaintiff also became a member of the union representing non-uniform clerical personnel of the city, Local 2462. (Id. at ¶ 6). Plaintiff remained a member of the union until 2002. (Id.). Plaintiff served active duty in the United States Air Force from 1971-1974. (Id. at ¶ 7). He left active military duty in 1974 and did not commence any employment with the City until 1979. (Id. at ¶ 8).
In December 2002, plaintiff had been employed by the City for twenty-two years and five months and been a member of the Union and contributing member of the pension fund for twenty-one years and nine months. (Id. at ¶ 9). The collective bargaining agreement ("CBA") between the city and the clerical union was scheduled to expire on December 31, 2002. (Id. at ¶ 10). The parties disagree about whether the CBA established the regular retirement age for union members at age 55, or whether members who were younger than 55 could purchase additional pension time and retire. (Compare City Defendants' Statement at ¶ 11 with Plaintiff's Response to Facts of Defendants Barrett Et Al (Doc. 64) (hereinafter "Plaintiff's Answer to City Defendants' Statement") at ¶ 11). Plaintiff was fifty years old at that time. (Plaintiff's Statement of Material Facts (Doc. 61) at ¶1). The CBA provided, in Article XXXIII, Section 3(D), that "Effective January 1, 1999, bargaining unit members shall be permitted to purchase 10 years of pension service after twenty-one years of actual service." (City Defendants' Statement at ¶ 12).
Anticipating the expiration of the CBA, in December 2002 the City began negotiations with the union. (Id. at ¶ 13). These negotiations included consideration of a one-time offer to allow any employee who currently had twenty-five years or more of service to the City, but was less than fifty-five years old to retire by December 31, 2002 with healthcare benefits and their pension. (Id.). The City approved and adopted this offer by ordinance on February 25, 2003. (Id. at ¶ 14; Plaintiffs' Answer to City Defendants' Statement at ¶ 14). The Court of Common Pleas of Lackawanna County, Pennsylvania, found that the ordinance passed in February 2003 differed materially from the offer extended in 2002. (Id.). The ordinance "unambiguously" excluded the plaintiff from participation in the program, but the offer in 2002 did not. (Id.).
Plaintiff applied for retirement on December 30, 2002. (City Defendants' Statement at ¶ 16). The parties disagree about whether he applied under the terms of the Council's February 2003 ordinance or the offer extended in 2002. (Id. at ¶ 16; Plaintiffs' Response to City Defendants' Statement at ¶ 16). Plaintiff insists that he applied under the terms of the 2002 offer. (Id.). The parties agree that Schimes intended to apply under this program. (City Defendants' Statement at ¶ 17).
Plaintiff did not have twenty-five years of service, but argued that under the CBA he could purchase the service time needed to be eligible for the offer. (Id. at ¶ 18; Plaintiff's Response to City Defendants' Statement at ¶ 18). The Court of Common Pleas found that plaintiff was entitled to purchase this service time under the contract. (City Defendants' Statement at ¶ 19). City officials nevertheless maintain that the one-time offer was not intended to apply to persons in plaintiff's situation. (Id. at 20; Plaintiffs' Response to Defendants' Statement at ¶ 20).
Plaintiff initially sought an application for the pension from Thomas Barrett, president of the non-uniform pension board. (Defendants' Statement at ¶ 21). Barrett consulted with Defendant Michael Savitsky, the city solicitor, who advised plaintiff that he was not eligible for the one-time offer. (Id.). Plaintiff nevertheless submitted an application on December 31, 2002. (Id. at ¶ 22). The application did not contain any documentation demonstrating plaintiff's years of active military service. (Id. at ¶ 23). After he retired, however, plaintiff attempted to purchase military service time by informing Barrett that he intended to do so. (Id. at ¶ 24). Savitsky notified plaintiff by letter that he was ineligible for a pension under the December 2002 offer because he did not have twenty-five years of service to the City and was not qualified to purchase his military time. (Id. at ¶ 25).
On March 24, 2004, the Scranton Non-Uniform Pension Board voted 4-1 to deny plaintiff's pension. (Id. at ¶ 26). The parties dispute whether the Board relied on the advice of its solicitor in making this decision. (Id. at ¶ 27; Plaintiffs' response to City Defendants' Statement at ¶ 27). Savitsky sent a letter to Thomas Barrett on April 22, 2004, providing a copy to the plaintiff. (Defendants' Statement at ¶ 28). This letter averred that plaintiff was not allowed to purchase ten years of pension service because he was not fifty-five years old. (Id. at ¶ 28).
Plaintiff appealed the Pension Board's opinion to the Lackawanna County Court of Common Pleas. (Id. at ¶ 29). On October 1, 2004, Judge S. John Cottone directed the Board to conduct a hearing on plaintiff's claims. (Id.). The hearing occurred on February 2, 2005 before hearing examiner Kevin O'Hara. (Id. at ¶ 30). Plaintiff testified at this hearing. (Id.). O'Hara recommended that plaintiff was not qualified for a pension in June 2005. (Id. at ¶ 31). Plaintiff appealed this decision and the Lackawanna County Court of Common Pleas reversed and awarded him a pension. (Id. at ¶ 32). The Commonwealth Court of Pennsylvania denied the Board's appeal of this decision on December 18, 2006. (Id. at ¶ 33).
Plaintiff did not submit a check with his application to buy additional time. (Id. at ¶ 34). The parties dispute when plaintiff first raised the issue of purchasing such additional time. (Compare City Defendants' Statement at ¶ 35; Plaintiff's Response to City Defendants' Statement at ¶ 35). The City defendants insist that he did not raise this issue until February 16, 2004. (City Defendants' Statement at ¶ 35). The plaintiff insists he discussed such purchase "sometime between January 2003 and February 16, 2004. (Plaintiff's Response to City Defendants' Statement at ¶ 35). In any case, plaintiff did not pay for the purchase of any additional time until January 2007, after the Commonwealth Court denied the Board's appeal. (City Defendants' Statement at ¶ 36).
Pension Board members frequently appointed proxies to serve for them when they were unable to attend meetings, though plaintiff disputes the frequency and history of that practice. (City Defendants' Statement at ¶ 37; Plaintiff's Response to City Defendants' Statement at ¶ 3). There were other individuals besides plaintiff who were younger than fifty-five but who lacked twenty-five years of service to the City on December 31, 2002. (City Defendants' Statement at ¶ 38). These individuals were likewise deemed ineligible for the early-retirement offer. (Id.). Plaintiff was the only worker in that situation who applied for a pension on December 31, 2002; he contends that he was the only worker who discussed the situation with City officials. (Plaintiffs' Response to City Defendants' Statement at ¶ 38). Several individuals who were similarly situated to plaintiff retired after he won his appeal. (Id. at ¶ 39). Five workers, Mary Ann Kitlas, Muareen Biglin, John Hazzourri, Kathy Ruane and Janice Gilhooley ultimately retired under this program. (City Defendants' Statement at ¶ 40).
Plaintiff filed a seven-count complaint on May 14, 2007. (See Doc. 1). In count one, plaintiff alleges that the individual defendants, in their individual and official capacities, acted under color of state law to deprive him of his procedural and substantive due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The count also contends that Defendant City of Scranton Non-Uniform Pension Board denied plaintiff's due process rights to notice and a hearing about his pension. Count Two alleges that the individual defendants, individually and in their official capacities, violated plaintiff's procedural and substantive due process rights under the Pennsylvania Constitution, and that the Board violated his state due process rights to notice and a hearing on his pension claims. Count Three alleges a deprivation of plaintiff's property rights in his pension against the Board, Mayor Doherty individually and in his official capacity as mayor, the City and Defendant DiBileo, individually and in his official capacity as President of the Scranton City Council and Member of the Non-Uniform Pension Board. Count Four contends that the defendants conspired to deprive plaintiff of his civil rights. Count Five raises an equal protection claim against all of the defendants. Count Six also raises a substantive due process claim, contending that defendants' actions were "calculated, intentional, and deliberate, motivated by bad faith or improper motive." (Id. at ¶ 99). Count Seven alleges that the municipal defendants were aware of the individual defendants' efforts to deprive plaintiff of his property rights and did nothing to prevent such action. (Id. at ¶ 102). As relief, plaintiff seeks damages and an injunction prohibiting the City of Scranton from enforcing certain ordinances and policies.
The defendants filed motions to dismiss the complaint. On March 27, 2008, the court issued a memorandum and order granting in part and denying part the defendants' motions. The court dismissed plaintiff's procedural due process claim and plaintiff's claims against Chris Doherty, Scranton's Mayor and Gary Dibileo, President of the City Council, and denied the motion in all other respects. The parties then engaged in discovery. They filed the instant motions at the close of ...