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Brown v. Tucci

United States District Court, W.D. Pennsylvania

May 20, 2013

TERRY BROWN, Plaintiff,
BLASÉ TUCCI, in his individual and official capacity as Vice President of Slippery Rock Borough Council, DAVID MILLER, in his individual and official capacity as President of Slippery Rock Borough Council, and NEVA STANGER, in her individual and official capacity as solicitor for Slippery Rock Borough Council

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For TERRY BROWN, Plaintiff: Alexander H. Lindsay , Jr., LEAD ATTORNEY, Lindsay, Jackson & Martin, Butler, PA; Lisa M. Henry, LEAD ATTORNEY, The Lindsay Law Firm, Butler, Pa.

For BLASE TUCCI, in his individual and official capacity as Vice President of Slippery Rock Borough Council, DAVID MILLER, in his individual and official capacity as President of Slippery Rock Borough Council, and, NEVA STANGER, in her individual and official capacity as solicitor for Slippery Rock Borough Council, Defendants: Danielle M. Vugrinovich, Scott G. Dunlop, LEAD ATTORNEYS, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA.


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Nora Barry Fischer, United States District Judge.


I. Introduction

Pending before the Court is a motion to dismiss filed by the Defendants pursuant to Federal Rules of Civil Procedure 12(b)(1) [1] and 12(b)(6). Docket Nos. 14 & 17. For the reasons that follow, that motion will be granted in part and denied in part. The Plaintiff will be ordered to file a more definite statement in accordance with Federal Rule of Civil Procedure 12(e).

II. Background[2]

Slippery Rock Township (" Township" ) and Slippery Rock Borough (" Borough" ) are municipal entities organized under the laws of the Commonwealth of Pennsylvania. Docket No. 1 at ¶ ¶ 4-5. The Township's territory completely surrounds that of the Borough. Id. at ¶ 6. In other words, the Borough is geographically situated within the Township, and an individual traveling by foot cannot leave the Borough without entering the Township. Id. The Township does not have its own police force. Docket No. 17 at 2, n. 1. Pennsylvania law permits a township to contract with a municipal corporation in order to procure the services of its police force. 53 Pa. Stat. 66903. For several years, the Borough's Police Department (" Department" ) patrolled the Township in exchange for monetary payments made pursuant to a contract known as the Slippery Rock Borough Police Services Mutual Aid Agreement (" Agreement" ). Docket No. 1 at ¶ 7. Under the terms of the Agreement, the Borough was paid $25.00 for every hour of police services provided to the Township. Id. at ¶ 18.

Plaintiff Terry Brown (" Brown" ) is a resident of the Township. Id. at ¶ 14. He was employed as a Borough police officer for more than twenty-four years. Id. at ¶ 12. As an active member of the community, Brown was known and liked by many of the Township's residents. Id. at ¶ 15. At some point, he became the Borough's Chief of Police. Id. at ¶ 13.

Borough and Township officials began to renegotiate the terms of the Agreement during the latter part of 2009 or the early part of 2010. Id. at ¶ 8. As the Chief of Police, Brown was directly involved with the negotiations. Id. at ¶ 16. While the negotiations were underway, some members of the Borough Council (" Council" ) proposed that the Borough and the Township merge to form a single entity. Id. at ¶ 9. The proposal was spearheaded by David Miller (" Miller" ), who served as the President of the Council, and Blasé Tucci (" Tucci" ), who served as the Council's Vice-President. Id. at ¶ 10. With the support of many Township residents, the

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Township Supervisors (" Supervisors" ) expressed opposition to the proposed merger. Id. at ¶ 11.

During the spring of 2010, Brown and Tucci met with the Supervisors to discuss the status of the Agreement. Id. at ¶ 18. The Supervisors offered to increase the Township's hourly payment for police protection from $25.00 to $100.00. Id. Brown supported the idea and expressed the view that such an increase would adequately compensate the Borough for its services. Id. at ¶ 19. Tucci resisted the proposal put forth by the Supervisors. Id. at ¶ 20. He stated that no new agreement would be executed, and that the Township could continue to enjoy the services of the Borough's police force only if it agreed to merge with the Borough. Id. Tucci essentially presented the Supervisors with an " all or nothing" offer. Id. at ¶ 21. Brown was " shocked" by Tucci's refusal to accept the payment increase offered by the Supervisors. Id. at ¶ 22.

Shortly after the meeting, Tucci privately approached Brown and asked him to " personally endorse" the merger proposal. Id. at ¶ 23. Brown refused to support the idea. Id. at ¶ 24. He told Tucci that he would be " subject to termination" if he were to engage in " political conduct" relating to the proposed merger. Id. at ¶ 25. Brown's fear of termination was apparently rooted in 53 Pa. Stat. § 46190(6), which provides that a police officer or firefighter may be " suspended without pay, removed or reduced in rank" for participating in a " political or election campaign while on duty or in uniform or while using borough property."

In May 2010, the Council sent a memorandum to the Department advising that Borough police officers should offer assistance to Township residents only when such assistance was first sought from the Pennsylvania State Police (" PSP" ). Id. at ¶ 26. In Brown's presence, Miller and Tucci stated that the delayed response times observed by Township residents would make them wish that they had " played ball" and agreed to the merger. Id. at ¶ 32. Brown did not understand the memorandum to require Borough police officers to await the arrival of a state police officer before responding to a request for help made by a Township resident. Id. at ¶ 29. After hearing about Brown's interpretation of the Council's instruction, Tucci " stormed" into Brown's office and accused him of " playing fucking games with the memo." Id. at ¶ 27. Tucci told Brown that a member of the PSP needed to be " physically present" at the scene of an incident occurring within the Township before Borough police assistance could be authorized. Id. at ¶ 30. Brown responded by accusing the Council of " using the safety of Township residents as leverage" to garner support for its merger proposal. Id. at ¶ 31. He described that tactic as " a very bad way to do business." Id.

In September 2010, Bureau Administrator Lucinda Lipco (" Lipco" ) informed Brown that he needed to attend the Council's next executive session. Id. at ¶ 33. This was the first time that Brown was required to attend such a meeting. Id. at ¶ 34. At the meeting, Brown claimed that the Council was " putting a price" on the safety of Township residents by conditioning continued police protection on a merger. Id. at ¶ 35. He expressed disagreement with the Council's approach to the issue. Id. Despite his reservations about the policy reflected in the earlier memorandum, Brown stated that he would follow any " official directions" given to him by the Council. Id. Nonetheless, he emphasized that he could not " engage in political conduct" pertaining to the proposed merger. Id. at ¶ 36.

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On October 7, 2010, Brown taught a class on " close-quarter shooting" at a local shooting range. Id. at ¶ 37. After disabling a student's weapon, Brown placed himself between the student and his or her " range target" in order to conduct a demonstration. Id. at ¶ 38. By going " down range," Brown apparently violated the applicable firearms safety protocol. Officer Jason Bennett (" Bennett" ) witnessed the incident. [3] Id. at ¶ 39. A few weeks later, Bennett's wife saw Tucci at a local store and told him that Brown had improperly " stepped down range during a training session." Id. at ¶ 40. With Miller's approval, Tucci started to investigate the incident. Id. at ¶ 41. Neva Stanger (" Stanger" ), the Borough Solicitor, was asked to participate in the investigation. Id. at ¶ ¶ 43-45. She spoke with Bennett about the matter on October 21, 2010. Docket No. 14-1 at 2.

Pennsylvania law permits a borough police officer to be " suspended without pay, removed or reduced in rank" only for reasons specified by statute. 53 Pa. Stat. § 46190. A public employee " who can be discharged only for cause" has a constitutionally-protected property interest in his or her employment. Gilbert v. Homar , 520 U.S. 924, 928-929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). In Cleveland Board of Education v. Loudermill , 470 U.S. 532, 542-548, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibits a public employer from discharging such an employee without affording him or her a pretermination hearing. During a hearing conducted on November 2, 2010, Brown and Stanger discussed the incident at the shooting range. Docket No. 14-1 at 2. Brown's attorney was present for the discussion. Id.

The Council voted to terminate Brown's employment with the Department on December 7, 2010. Docket No. 1 at ¶ 47. Each Pennsylvania borough maintaining " a police force or paid fire apparatus operators" has a " civil service commission" consisting of " three commissioners." 53 Pa. Stat. § 46172(a). On December 17, 2010, Brown appealed his dismissal to the Slippery Rock Borough Civil Service Commission (" Commission" ). Docket No. 14-1 at 3. A hearing was conducted on May 10, 2011. [4] Docket No. 1 at ¶ 50. The Commission unanimously denied Brown's appeal in a decision rendered on November 29, 2011. Docket No. 1-2 at 2-5. It was noted that under Jenkintown v. Civil Service Commission , 84 Pa.Cmwlth. 183, 478 A.2d 941, 943 (Pa.Commw.Ct. 1984), and Borough of Edgeworth v. Blosser , 672 A.2d 854, 856 (Pa.Commw.Ct. 1996), the Commission could modify the Council's decision only if the allegations lodged against Brown were lacking in evidentiary support, or if the penalties imposed on him were otherwise prohibited by law. Id. at 4. The Commission clarified that the disciplinary action taken against Brown may have been less severe if it had been the body vested with the authority to discipline him in the first instance. Id. at 4-5; Docket No. 27-1 at 2.

On December 28, 2011, Brown appealed the Commission's decision to the Court of Common Pleas of Butler County. Docket No. 14-2 at 10; 53 Pa. Stat. § 46191(c). The Commission filed its " Findings of Fact and Conclusions of Law" on January 25,

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2012. Id. In that filing, the Commission stated that Brown's conduct had provided the Council with a sufficient basis for discharging him under subsections (2) and (4) of 53 Pa. Stat. § 46190. Docket No. 14-1 at 3. Those provisions permit a borough police officer to be " removed" for the " [n]eglect or violation of any official duty," or for " [i]nefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer." 53 Pa. Stat. § 46190(2), (4). The Council filed a notice of intervention on January 27, 2012. Docket No. 14-2 at 10. In a memorandum opinion and order dated May 15, 2012, Judge Marilyn J. Horan affirmed the Commission's decision. Docket No. 14-1. In her opinion, Judge Horan declared that since " the Council's decision to remove Brown was supported by substantial evidence," " the Commission had no authority to modify Brown's penalty." Id. at 13.

Brown filed a motion for post-trial relief on May 25, 2012. Docket No. 14-2 at 11. Pennsylvania Rule of Civil Procedure 227.1(g) provides that " [a] motion for post-trial relief may not be filed in an appeal from the final adjudication or determination of a local agency or a Commonwealth agency as to which jurisdiction is vested in the courts of common pleas." Pa. R. Civ. P. 227.1(g). Relying on Rule 227.1(g), Judge Horan determined that she had no jurisdiction to entertain Brown's motion for post-trial relief. Docket No. 14-2 at 14. The earlier order affirming Brown's dismissal was deemed to be the " final appealable order" in the case. Id. The order dismissing Brown's motion for post-trial relief was entered on August 31, 2012. Id. at 15-16.

Brown commenced this action against Miller, Tucci and Stanger on December 5, 2012, alleging violations of the First and Fourteenth Amendments to the United States Constitution. Docket No. 1 at ¶ ¶ 53-60. The constitutional claims were premised on an assertion that the Defendants had discharged Brown in retaliation for his refusal to endorse the merger proposal and opposition to the Council's negotiating tactics. Id. at ¶ ¶ 48-49. Brown further alleged that the Defendants had violated Pennsylvania law by wrongfully discharging him because of his refusal to violate § 46190(6). Id. at ¶ ¶ 61-67. On March 4, 2013, the Defendants moved for the dismissal of Brown's claims pursuant to Rules 12(b)(1) and 12(b)(6). Docket No. 14. The parties advanced their respective positions during the course of an oral argument session conducted on April 26, 2013. The motion to dismiss filed by the Defendants is the subject of this memorandum opinion.

III. Standards of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges a court's subject-matter jurisdiction over the plaintiff's claims. Fed.R.Civ.P. 12(b)(1). " At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" Judkins v. HT Window Fashions Corp. , 514 F.Supp.2d 753, 759 (W.D.Pa. 2007), quoting Mortensen v. First Federal Savings & Loan Association , 549 F.2d 884, 891 (3d Cir. 1977). As the party asserting that jurisdiction exists, the plaintiff bears the burden of showing that his or her claims are properly before the court. Development Finance Corp. v. Alpha Housing & Health Care , 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Rule 12(b)(1) motion, a court must determine whether the attack on its jurisdiction is a facial attack or a factual attack. A facial attack challenges the sufficiency of the plaintiff's pleadings on jurisdictional grounds. Petruska v. Gannon University , 462 F.3d 294, 302, n. 3 (3d Cir. 2006). When considering a facial attack, a court must accept the allegations contained in the plaintiff's complaint as true. Id. A

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factual attack on the court's jurisdiction must be treated differently. Id. When considering a factual attack, the court does not attach a presumption of truthfulness to the plaintiff's allegations, and the existence of disputed material facts does not preclude the court from deciding for itself whether jurisdiction over the plaintiff's claims can be properly exercised. Mortensen , 549 F.2d at 891.

In light of the United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if it does not allege " enough facts to state a claim to relief that is plausible on its face." " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This standard requires more than " a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555. The complaint must allege a sufficient number of facts " to raise a right to relief above the speculative level." Id. This requirement is designed to facilitate the notice-pleading standard of Federal Rule of Civil Procedure 8(a)(2), which requires " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2)(emphasis added).

In considering a motion to dismiss filed pursuant to Rule 12(b)(6), a court accepts all of the plaintiff's allegations as true and views all reasonable inferences drawn from those allegations in the light most favorable to the plaintiff. Buck v. Hampton Township School District , 452 F.3d 256, 260 (3d Cir. 2006). Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual averments. Morse v. Lower Merion School District , 132 F.3d 902, 906, n. 8 (3d Cir. 1997). The primary question in deciding a motion to dismiss is not whether the plaintiff will ultimately prevail, but rather whether he or she is entitled to offer evidence to establish the facts alleged in the complaint. Maio v. Aetna , 221 F.3d 472, 482 (3d Cir. 2000). The purpose of a motion to dismiss is to " streamline[] litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams , 490 U.S. 319, 326-327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In addition to the allegations contained in the complaint, a court may consider matters of public record, exhibits attached to the complaint, and other items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384, n. 2 (3d Cir. 1994).

IV. Jurisdiction and Venue

Jurisdiction to adjudicate Brown's federal constitutional claims is predicated on 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Brown's wrongful discharge claims pursuant to 28 U.S.C. § ...

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