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Edward G. Smith v. Borough of Dunmore

September 23, 2011

EDWARD G. SMITH, PLAINTIFF,
v.
BOROUGH OF DUNMORE, BOROUGH OF DUNMORE COUNCIL, AND JOSEPH LOFTUS, THOMAS HENNIGAN, JOSEPH TALUTTO,*FN1 FRANK PADULA, LEONARD VERRASTRO, AND MICHAEL CUMMINGS, INDIVIDUALLY AND AS COUNCILMEN, DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

The present case is scheduled for trial on the Court's November calendar. After the identifying to the parties several areas where summary judgment might be appropriate, the Court invited the parties to present evidence and briefing upon these issues. The evidence and briefs presented by the parties establish that, as a matter of law, Smith received due process and a constitutionally adequate name-clearing hearing.*fn2

Therefore, summary judgment will be granted to the Defendants.

I. Background

A. Factual History

The facts as presented in Defendants' statement are as follows:*fn3 Plaintiff Edward G. Smith was, at all times relevant to this action, employed full time as a Captain with the Borough of Dunmore Fire Department. (Def. Stmt., Doc. 153 ¶ 2.) Smith was appointed as a firefighter with the Borough in 1988; prior to that, he worked there for five years in the "active reserve." (Trial Tr., 114:18-23, Oct. 30, 2007, ECF No. 143.) The Borough of Dunmore and the firefighters' Local Union 680 are bound by a collective bargaining agreement that states that the power to "hire, classify, promote, suspend, [and] discipline or discharge for just cause" and "determine the safest and most efficient means and methods for conducting the [Fire] Department" are vested in the Borough. (Def. Stmt. ¶ 10-11.)

Defendant Joseph Loftus, the Borough Manager, began investigating the certification of the employees of the Fire Department on May 20, 2005. (Id. ¶ 13.) He instructed the Chief of the Fire Department to send him a memo outlining the necessary qualifications and certifications for full-time firefighters and documentation showing that the staff met those qualifications and certifications. (Id.) Chief Vince Arnone responded on May 23, 2005, advising Loftus of the five necessary qualifications and certifications for full-time firefighters. (Id. ¶ 16.) Chief Arnone later sent Loftus a note indicating that Smith did not have the required Fire Academy Training. (Id. ¶ 18.)

Loftus presented the documentation to the Borough of Dunmore Council, who determined that Smith had failed to complete training required under the collective bargaining agreement. (Id. ¶ 24.) Defendants Thomas Hennigan, Leonard Verrastro, Frank Padula, Michael Cummings, and Joseph Talutto are all members of the Council (which itself is also a Defendant). (Id. ¶ 6.) All Defendant council members testified that their primary concern was safety. (Id. ¶ 26-30.) Talutto also testified, "We don't want to get blasted in the paper." (Id. ¶ 30.) Talutto later clarified that statement by noting that it was based on his shock at the situation and his concerns about protecting the town. (Id. ¶ 31.) On June 28, 2005, Loftus sent a memo to Chief Arnone explaining that the Council had determined that Smith had not completed all required training. (Id. ¶ 33.) The memo ordered that Smith be removed from the schedule, with pay, until a hearing could be held on July 6, 2005, to determine what action should be taken. (Id.)

On June 30, 2005, the Times-Tribune printed an article stating that Smith had been suspended for incomplete training pending a personnel hearing. (Id. ¶ 38.) The article's author had obtained a copy of the June 28, 2005 memo from an anonymous source. (Id. ¶ 37.)

Smith attended the July 6, 2005 hearing and was represented by counsel. (Id. ¶ 36.) At the hearing, Smith provided the Council with additional documentation that confirmed that he was in compliance with the required certifications and qualifications. (Id.) Based on this, the Council ordered that Smith be reinstated to the schedule, noting that he did not suffer any lapse in pay, other benefit, or service time for seniority or retirement date purposes. (Id.) On July 7, 2005, the Times-Tribune printed an article stating that Smith had been reinstated after a hearing where Smith provided sufficient documentation of his training. (Id. ¶ 39.)

B. Procedural History

On July 5, 2005--the day before Smith's hearing--he filed a complaint against the Borough and its council members, bringing, inter alia, claims for violations of procedural due process. Fellow firefighter Robert Dee also filed suit that day on the same grounds against the same Defendants. The Court granted summary judgment in part in both cases on the grounds that the Plaintiffs had no property interest in not being suspended. Smith's suit then went to trial on a retaliation claim; the jury returned a verdict in favor of Smith and awarded nominal damages of $1.

Dee and Smith both appealed the granting of summary judgment to the Defendants on their due process claims.*fn4 The Third Circuit reversed, holding that as a matter of law, 53 Pa. Stat. Ann. § 46190 and the collective bargaining agreement give rise to a property interest in not being suspended without cause. Dee v. Borough of Dunmore, 549 F.3d 225, 231-32 (3d Cir. 2008); Smith v. Borough of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011). Dee's case went to trial, and the jury found that the Defendants had violated his due process rights. The Third Circuit remanded Smith's case to the Court to consider the fact issues surrounding the Borough's justification for suspending Smith, whether he had suffered "stigma," and whether the July 6 hearing was a constitutionally adequate name-clearing hearing.

On April 22, 2011, the Court issued an order giving the parties in this case twenty-one days to supply supplemental briefs and exhibits on whether Smith's due process rights were violated. The parties fully ...


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