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Edward G. Smith v. Borough of Dunmore; Borough of Dunmore Council

January 5, 2011

EDWARD G. SMITH, APPELLANT
v.
BOROUGH OF DUNMORE; BOROUGH OF DUNMORE COUNCIL;
JOSEPH LOFTUS; THOMAS HENNIGAN; JOSEPH TALUTTO; FRANK PADULA; LEONARD VERRASTRO; MICHAEL CUMMINGS, INDIVIDUALLY AND AS A COUNCILMAN



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 05-cv-1343) District Judge: Hon. A. Richard Caputo

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

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a)

December 16, 2010

Before: JORDAN, HARDIMAN and VAN ANTWERPEN,

Circuit Judges.

OPINION OF THE COURT

Edward Smith appeals the order of the United States District Court for the Middle District of Pennsylvania granting summary judgment against him on his due process claims under 42 U.S.C. § 1983 and on his state law defamation and right of privacy claims. Smith also appeals the District Court's judgment as a matter of law on his claim for punitive damages arising from a § 1983 retaliation claim that Smith prevailed on at trial. Finally, Smith appeals the District Court's partial denial of his motion for attorney's fees and costs. For the following reasons, we will vacate and remand in part and affirm in part.

I. Background

A. Factual History*fn1

On May 20, 2005, Joseph Loftus, borough manager for the Borough of Dunmore in Pennsylvania ("Dunmore" or the "Borough"), asked Chief Vince Arnone of the Dunmore Fire Department to provide a list of required qualifications for full-time firefighters and to verify whether each Dunmore firefighter met those qualifications. Upon review of the information provided by Chief Arnone, Loftus concluded that Smith, who was a fire captain at the time, had not completed a required two-week Fire Academy training course. Loftus reported that conclusion to Dunmore's Borough Council, which made the decision to suspend Smith with pay until it could hold a hearing to address the apparent deficiency.*fn2

On June 28, 2005, Loftus sent Chief Arnone a letter notifying him that Smith was suspended with pay pending a July 6, 2005 hearing. Two days later, a local newspaper published an article stating that Smith had been suspended for failing to complete the Fire Academy training. As the source of its information, the article cited Loftus's letter to Chief Arnone, which had been provided to the paper by a confidential source whose identity remains unknown.*fn3

On July 6, 2005, a hearing was held before the Borough Council in which it was determined that, pursuant to the firefighter union's collective bargaining agreement ("CBA"), Smith, who had been a full-time firefighter since 1988, was not required to complete the Fire Academy training because his training and experience were treated as sufficient. Smith was reinstated after having been suspended for eight days but without having suffered any loss of pay or seniority.

As a result of his suspension and the publicizing of that suspension in the local paper, Smith filed suit against Dunmore on July 5, 2005, claiming defamation, due process violations, right of privacy violations, and retaliation. After filing suit, Smith had a conversation with Leonard Verrastro, a member of the Borough Council, in which Verrastro stated that, because of Smith's suit, he would vote against permitting Smith to retire early, despite a pension board recommendation that ...


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