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Robert A. Dombrosky v. Raymond Banach

May 24, 2012

ROBERT A. DOMBROSKY, PLAINTIFF,
v.
RAYMOND BANACH, ROBERT BROWN,
LESTER BUCHANAN, ROBERT EWBANK,
PAUL FISCHER, RICHARD GASSMAN,
JAMES MUIR, ROBERT STEVENS, CHAD STEWART, EASTERN PIKE REGIONAL POLICE COMMISSION, AND WESTFALL TOWNSHIP DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

This action stems from Plaintiff Robert Dombrosky's former employment as a police officer with the Westfall Township Police Department ("WTPD"). After being charged with a crime, Mr. Dombrosky agreed to take an unpaid leave of absence pending the disposition of the charges. In the meantime, Westfall Township entered into an agreement with Matamoras Borough to merge their respective police departments into a new regionalized police department, to be known as the Eastern Pike Police Department ("EPPD"). Mr. Dombrosky attempted to return to work upon his acquittal, but he was advised that due to the merger, his position no longer existed. Mr. Dombrosky now brings suit against Westfall Township, the Westfall Township supervisors, the Eastern Pike Regional Police Commission, the Eastern Pike Regional Police commissioners, and the chief of police of the EPPD.

Presently before the Court are the four Motions for Summary Judgment by: (1) Mr. Dombrosky; (2) Defendant Raymond Banach, a Westfall supervisor; (3) Defendants Westfall Township and its supervisors Lester Buchanan, Robert Ewbank, Paul Fischer, and James Muir (collectively, the "Westfall Defendants"); and (4) Defendants Eastern Pike Regional Police Commission; its commissioners Robert Brown, Lester Buchanan, Paul Fischer, Richard Gassman, and Robert Stevens; and EPPD Chief of Police Chad Stewart (collectively, the "Eastern Pike Defendants").*fn1 Mr. Dombrosky has established as a matter of law that Westfall Township and its supervisors are liable for his Police Tenure Act and breach of contract claims, but there are genuine issue of material fact as to whether Mr. Dombrosky had a property interest in his employment with the WTPD. Therefore, Mr. Dombrosky's motion will be granted in part and denied in part, and the Westfall Defendants' and Mr. Banach's motions will be denied. But because Mr. Dombrosky has not established a basis for imposing liability upon the Eastern Pike Defendants, their motion will be granted and Mr. Dombrosky's will be denied in part.

I. Background

A. Factual History

1. Plaintiff's Employment with the Westfall Township Police Department Westfall Township is a township of the second class located in Pike County, Pennsylvania. (Pl.'s Stmt. of Material Facts ("SMF") ¶ 1).

The WTPD hired Mr. Dombrosky on September 30, 1998. (Id. ¶ 1). He worked first as a part-time police officer, but eventually became a full-time patrolman in February of 1999. (Id. ¶ 4). He was promoted to the rank of corporal in 2003 and then promoted to the rank of sergeant in 2005. (Id. ¶ 4). During his employment with the WTPD, Mr. Dombrosky was disciplined on several occasions, including but not limited to the following instances: on February 14, 2000, he received a written reprimand for failing to attend a preliminary hearing; on March 16, 2001, he was reprimanded and suspended based on his involvement in an altercation while he was intoxicated; and on February 8, 2007, he received a supervisor's notation based on another altercation involving alcohol. (Def. Banach's Ex. B).

On July 16, 2007, Mr. Dombrosky was charged with harassment and attempted assault in Port Jervis, New York. (Pl.'s SMF ¶ 13; Eastern Pike Defs.' Ex. 31). The criminal charges alleged that he was involved in an altercation at a bar while intoxicated. (Def. Banach's Ex. E). Mr. Dombrosky pleaded not guilty to the charges. (Westfall Defs.' Ex. E at 102:1-6).

The Westfall Township Board of Supervisors held an executive meeting with Mr. Dombrosky on September 6, 2007, to determine Mr. Dombrosky's employment status while he awaited hearing on the Port Jervis charges. (Pl.'s SMF ¶¶ 15-16; Def. Banach's SMF ¶ 12). The Supervisors at that time were Defendants Lester Buchanan, Robert Brown, Robert Ewbank, Paul Fischer, and James Muir. (Def. Banach's SMF ¶ 13). At the meeting, Mr. Dombrosky and the Supervisors agreed that Mr. Dombrosky would take an unpaid leave of absence pending resolution of the charges; if Mr. Dombrosky was not convicted, he would be returned to active duty with backpay. (Eastern Pike Defs.'SMF ¶ 34).During his unpaid leave of absence, Mr. Dombrosky continued to receive all of his benefits, including health and other insurances. (Pl.'s SMF ¶ 19).

2. Regionalization

While an employee of the WTPD, Mr. Dombrosky attended several meetings about a potential merger between the Westfall Township and Matamoras Borough Police Departments. (Eastern Pike Defs.' SMF ¶ 67). One such meeting occurred on March 19, 2007. (Def. Banach's Ex. L). Mr. Dombrosky testified that at the March 19, 2007 meeting, officers were told that current WTPD officers would be guaranteed jobs after any merger of the two municipalities. (Pl.'s SMF ¶ 9). Mark Moglia, the former chief of police for the WTPD, also testified that, based on his discussions with the Westfall Supervisors, he believed that all WTPD officers would keep their jobs. (Id. ¶ 10). Mr. Dombrosky was sworn in as a Matamoras Borough police officer. (Id. ¶ 11).

On October 4, 2007, Westfall Township and Matamoras Borough entered into a Regionalization Agreement whereby "[a]ll mutual municipal boundaries of the participating political subdivisions" were "obliterated for the purpose of police service, so that a single police district comprising the total geographic area of the Borough of Matamoras and the Township of Westfall was established." (Westfall Defs.' Ex. N at 1, 3). Under the Agreement, all costs for the new regional police department are shared between Westfall Township and Matamoras Borough. (Id. at 6). Each municipality is also responsible for its pro rata share of the employer cost of the police pension fund. (Id. at 10). The Agreement stated that its effective date was January 1, 2008 at 12:01 p.m. (Id. at 3), but the date was modified so that it became effective on January 7, 2008 at 12:01 a.m. (Eastern Pike Defs.' SMF ¶ 41).

The Agreement also created a joint commission, Defendant Eastern Pike Regional Police Commission, to exercise general supervision over the newly created EPPD. (Westfall Defs.' Ex. N at 3). The Commission consists of two representatives from each municipality, plus one additional member. (Id. at 3-4). The members of the Commission are Defendants Richard Gassman, Robert Stevens, Paul Fischer, Robert Brown, and Ralph Burger. (Pl.'s Ex. 6). One of the Commission's duties is to prepare an annual budget that is submitted to Westfall Township and Matamoras Borough for approval. (Westfall Defs.' Ex. N at 7). The Commission also has the power to "hire, fire, suspend, promote, demote, discipline, set salaries, and otherwise deal with employees." (Id. at 9). The Commission obtained its own bank account, tax identification number, insurance, and developed standard operating procedures. (Eastern Pike Defs.' SMF ¶ 48, 52). In November 2007, the Commission appointed Defendant Chad Stewart as the new Chief of Police for the EPPD. (Id.¶ 51). It also set up a new phone system and ordered guns, badges, and uniforms for the EPPD. (Id. ¶ 55).

In terms of the existing employees of the WTPD and Matamoras Police Department, Westfall Township and Matamoras Borough agreed to "take all steps necessary to effectuate the transfer of police officers from their respective municipal departments to the regional departments at salaries, wages, benefits, ranks and positions and seniority levels as agreed upon by the municipalities." (Westfall Defs.' Ex. N at 11). The Agreement stated that at the commencement of the regional police department, a new consolidated bargaining unit would be created, consisting of "[a]ll full time police officers employed by Matamoras Borough and Westfall Township." (Id. at 11). The Agreement also stipulated:

In the event the respective police departments of Matamoras Borough and Westfall Township oppose the regionalization of police services and do not execute the consolidated regional police contract, Matamoras Borough and Westfall township shall proceed with the commencement of the department by assigning their respective police officers to perform police services under the direction and control of the Commission while remaining employees of their respective borough or township. (Id. at 11). The Commission meeting minutes from December 17, 2007, state that the commission's solicitor had spoken to the representative for the collective bargaining agreement and offered him a copy of the collective bargaining agreement for review. (Eastern Pike Defs.' SMF ¶ 62).

The Agreement listed various reasons that the municipalities sought to create a regional police department, including "an urgent need for uniformity and continuity in the enforcement of the Laws," and increased ability "to observe and protect the public safety." (Westfall Defs.' Ex. N at 2). Mr. Brown and Mr. Ewbank testified that potential cost savings was the general motivation behind the regionalization (Eastern Pike Defs.' SMF ¶ 40), though Mr. Dombrosky disputes this, pointing out that the Township spent more on police services for Eastern Pike than it did on WTPD(Pl.'s Ex. 71).

The employees of the WTPD and the Matamoras Borough Police Department were not asked to consent to the regionalization, nor were they given a vote. (Pl.'s SMF ¶ 25). The consolidated regional police collective bargaining agreement was signed by the Commission's solicitor on January 8, 2009. (Id. ¶ 47).The parties agreed that the collective bargaining agreement was to be effective retroactively to January 1, 2008. (Id. ¶ 47).

3. Plaintiff's Termination

Before the EPPD began operation, Mr. Stewart put together a list of active officers with the WTPD that would be transferred to the EPPD. (Eastern Pike Defs.' Ex. 36, 60:9-61:8). Because there had not yet been a positive resolution to Mr. Dombrosky's criminal charges, Mr. Stewart did not include him on the list. (Id. at 60:9-61:14).

After six adjournments, Mr. Dombrosky had a hearing on his criminal charges on February 19, 2008. (Westfall Defs.' SMF ¶ 31; Eastern Pike Defs.' Ex. 31). The Port Jervis judge dismissed the attempted assault charge and then acquitted Mr. Dombrosky of the harassment charge after a bench trial. (Eastern Pike Defs.' Ex. 31).

Mr. Dombrosky first contacted Mr. Stewart to notify him about the disposition of his charges. (Eastern Pike Defs.' Ex. 3, 134:19-21). Mr. Stewart advised Mr. Dombrosky that he would notify the Commission and the Board of Supervisors' secretary, Lisa Green. (Id. at 135:1). He also stated that the Commission was going to schedule a meeting at the end of February regarding Mr. Dombrosky's reinstatement. (Id. at 135:8-24). Mr. Dombrosky subsequently sent a letter to the Westfall Supervisors requesting reinstatement to the police department and back pay for the time he had been on leave. (Eastern Pike Defs.' SMF ¶ 74). By that time, Defendant Raymond Banach had been elected to the Board of Supervisors, replacing Mr. Brown. (Def. Banach's SMF ¶ 15; Eastern Pike Defs.' Ex. 32, 13:21-14:9).

On February 21, 2008, Ms. Green sent Mr. Dombrosky a letter stating that his benefits would be terminated because his "employment status with the Westfall Township Police Department ended as of 12:01 am on January 7, 2008 when the department merged to form the Eastern Pike Regional Police Department." (Eastern Pike Defs.' Ex. 4).The Commission's Solicitor sent Mr. Dombrosky a letter on March 26, 2008, stating that at a January 24, 2008 meeting, the Commission voted to notify Mr. Dombrosky that there was no full-time police officer position available with the EPPD. (Eastern Pike Defs.' ...


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