The opinion of the court was delivered by: (Judge Munley)
Before the court is defendants' motion for summary judgment. Having been fully briefed and argued, the matter is ripe for disposition.
This case arises out of Plaintiff John P. Zuratt's employment as a police officer in Defendant Norwegian Township ("the Township"), Pennsylvania and the Township's decision to disband the force for which he worked. Plaintiff began working for the Defendant Township as a part-time patrol officer in 1986. (Defendant's Statement of Undisputed Material Facts (Doc. 14) (hereinafter "Defendant's Statement") at ¶ 1). In the late 1980s, plaintiff obtained full-time employment with the Township and eventually was promoted to patrol Sergeant. (Id. at ¶ 2).
During part of his employment with the Township, plaintiff reported primarily to Township Supervisor Robert Kirwan. (Id. at ¶ 3). Plaintiff provided Kirwan daily and weekly reports. (Id.). According to plaintiff, this relationship existed only in recent years, since Kirwan was only recently elected to the Board of Supervisors. (Plaintiff's Counterstatement of Material Facts (Doc. 17) (hereinafter "Plaintiff's Counterstatement") at ¶ 3). At the time of the events here in question, Kirwan served as plaintiff's immediate supervisor. (Defendant's Statement at ¶ 4). Kirwan addressed matters such as plaintiff's scheduling, vacation and overtime. (Id.). Plaintiff usually worked a forty-hour week during 2006 and 2007. (Id. at ¶ 5). He occasionally worked overtime to complete an investigation, but this practice was not routine. (Id.).
Plaintiff was the only police officer employed by the Township in 2007. (Id. at ¶ 6). The Pennsylvania State Police responded to 911 calls when plaintiff was not on duty. (Id. at ¶ 7). The State Police have jurisdiction in Norwegian Township for all criminal matters. (Plaintiff's Counterstatement at ¶ 7). Troopers also attended events at Township schools and responded to calls at those schools when plaintiff was off-duty. (Id.). State Police also sometimes handled non-reportable minor accidents. (Id.). Plaintiff is not aware if the State Police also provided routine traffic or patrol services when he was not working. (Defendant's Statement at ¶ 8). The parties agree that the Board of Supervisors were aware in 2007 that the State Police had not responded to many incidents in the township over the previous five to eight years. (Id. at ¶ 9). Plaintiff, insists, however, that the State Police were required to respond to such incidents, as they have jurisdiction in the Township. (Plaintiff's Counterstatement at ¶ 9).
In the years preceding dissolution of the police force, plaintiff had frequently informed the Township that he needed assistance to perform his duties. (Defendant's Statement at ¶ 10). Plaintiff testified that his responsibilities were extensive, since he was charged with investigating criminal incidents at the Township's three malls and policing accidents on the highways within the Township. (Id. at ¶ 11). The Township hired two part-time officers in response to these complaints, but they did not stay on the job very long. (Id. at ¶ 12). Plaintiff believed these part-time officers only wanted to work at times convenient for them, not when the Township needed them. (Id. at ¶ 13). The parties disagree over whether plaintiff asked the Board of Supervisors to hire additional officers. (Id. at ¶ 14; Plaintiff's Counterstatement at ¶ 14). They also disagree over whether plaintiff ever requested additional help from various supervisors. (Defendant's Statement at ¶¶ 14-15; Plaintiff's Counterstatement at ¶¶ 14-15).
According to the reports plaintiff submitted to the Board of Supervisors, the Township experienced between 150 and 200 criminal incidents per month. (Defendant's Statement at ¶ 16). These numbers include only those incidents that occurred on plaintiff's eight-hour shift. (Id.). Supervisors expressed concern about the level of crime in the Township, particularly during the sixteen hours of the day during which plaintiff was off-duty and no officers were stationed in the Township. (Id.). They had previously attempted to hire part-time officers, but were not pleased with the results, and now attempted to develop another means of providing the Township with the required police coverage. (Id. at ¶ 17). One Supervisor, Leo Grace, insisted that the Township maintain a full-time police department. (Id. at ¶ 18). Beginning in February 2007, the Supervisors explored the possibility of expanding the department's size. (Id. at ¶¶ 18-20).
Supervisor Kirwan testified that the Township operated on a fixed budget, which was dependent on property taxes. (Id. at ¶ 21). Those taxes brought in yearly revenues of between $150,000 and $200,000, and the Supervisors attempted to build the Township's yearly budget for salaries and other expenses around this income. (Id.). The Supervisors bore these numbers in mind as they explored expansion of the police department. (Id. at ¶ 22). Looking at the police departments in surrounding communities like Minersville, the Board concluded that expanding the police force would require hiring five to six officers. (Id.). The cost of such an expansion would have exceeded the Township's entire yearly budget, and the Board found such expense impossible. (Id.).
The Supervisors sought ways to provide police coverage for the Township through arrangements with other agencies. They explored the possibility of regionalization of the police force, but concluded that such expansion was unrealistic. (Id. at ¶ 23). Supervisors had discussed regionalization with the City of Pottsville in 2002 or 2003, but had no success. (Id. at ¶ 24). Similar efforts in 2004 and 2005 with Minersville Borough, Branch Township, Tremont Borough, Tremont Township, Cass Township and Reilly Township had likewise come to no end. (Id. at ¶ 25). Finally, Supervisor Kirwan spoke with State Police Sergeant Stein in the fall of 2007. (Id. at ¶ 26). Stein informed Kirwan that the State Police could provide twenty-four hour coverage for the Borough, seven days a week. Defendant claims that the Supervisors did not want to accept coverage from the State Police without ensuring that plaintiff had a job with the Township. (Id. at ¶ 27). They therefore decided to offer him a position with the Township Street Department if they disbanded the police department. (Id.). Plaintiff disputes the timing and nature of any offer the Township subsequently made him. (Plaintiff's Counterstatement at ¶ 27).
On December 1, 2007, plaintiff met with Robert Kirwan and Albert Evans, the township solicitor, to discuss disbanding the police department. (Defendant's Statement at ¶ 28). Defendants claim they offered plaintiff two positions. (Id. at ¶¶ 29-30). Plaintiff could continue to work for the township handling paperwork and court duties until he became eligible for a pension in February 2008. (Id. at ¶ 29). Alternatively, he could work as a Road Crew Chief on the Township's street department. (Id. at ¶ 30). Plaintiff did not accept an employment offer at this time. (Id. at ¶ 34). The parties dispute whether Kirwan set a deadline for plaintiff to accept this position. (Id. at ¶¶ 31-32; Plaintiff's Counterstatement at ¶¶ 31-32). Plaintiff insists that he called Solicitor Evans on February 22, 2008 and Leo Grace on February 25, 2008 to tell them he wanted the Road Department job. (Plaintiff's Counterstatement at ¶ 32). They allegedly told him he would receive an answer by March 1, 2008. (Id.). He did not receive an answer by that date, and on March 3, 2008, plaintiff's wife asked about the position at a Board of Supervisors' meeting. (Id.). Supervisor Stanley Petchulis told her that the Supervisors would review and discuss plaintiff's request. (Id.).
The Supervisors discussed disbanding the police department at their meeting on December 3, 2007. (Id. at ¶ 35). During this meeting, the Supervisors stated that they had based their decision to disband the department on their desire to have twenty-four hour coverage seven days a week. (Id. at ¶ 36). Supervisor Kirwan testified that the decision to disband the department also came because the Township lacked the financial resources to support an adequate department. (Id. at ¶ 37). With the number of incidents reported, the Township needed more coverage than one full-time officer could provide, but lacked the resources to provide for additional officers. (Id.). Plaintiff did not accept a position as Road Crew Foreman during this Board of Supervisors meeting. (Id. at ¶ 38). The Board voted to disband the police department at a meeting on December 27, 2007. (Id. at ¶ 39). Plaintiff did not have any discussions with the Board at any time between these two meetings. (Id. at ¶ 40).
At their December 27, 2007 meeting, Supervisors discussed whether plaintiff would retire when he reached age 55. (Id. at ¶ 42). They assumed he would. (Id.). Statements made at the meeting indicate that the Board expressed some desire to provide plaintiff with an opportunity to keep working until he was 55. (Plaintiff's Counterstatement at ¶ 43). Defendant denies that plaintiff's eligibility to retire and collect a pension in February 2008 played a role in their decision to disband the police department. (Defendant's Statement at ¶ 43). Defendants eliminated the Norwegian Township Police Department effective January 1, 2008. (Id. at ¶ 46). While defendant insists that plaintiff testified he had no idea why the Township eliminated his department, plaintiff contends that the Township acted to remove him from his position before he became eligible for retirement. (Id. at ¶ 47; Plaintiff's Statement at ¶ 47).
Plaintiff did not have any discussions with the Board of Supervisors regarding the street-crew position in the first month after Supervisors disbanded the Police Department. (Defendant's Statement at ¶ 48). On January 29, 2008, Thomas P. Williams completed an application for full-time crew chief and foreman, the street-crew position that had been discussed with plaintiff. (Id. at ¶ 50). Willliams was born on June 19, 1949. (Id. at ¶ 51). Plaintiff was born February 27, 1953. (Id. at ¶ 52). In February 2008, plaintiff claims he contacted Supervisor Leo Grace and B.J. Evans to express interest in the street-crew job. (Id. at ¶ 53; Plaintiff's Statement at ¶ 53). Grace has no recollection of any conversation about this job. (Defendant's Statement at ¶ 55). Plaintiff contends he never received a satisfactory answer about his status for the job. (Id. at ...