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Loscombe v. City of Scranton

United States District Court, Third Circuit

October 30, 2013

JOHN LOSCOMBE, Plaintiffs,
v.
CITY OF SCRANTON, et al. Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court are Motions for Summary Judgment on behalf of Defendant City of Scranton (Doc. 130) and Defendants City of Scranton Firemen's Pension Commission, Firemen's Relief and Pension Fund Commission, and City of Scranton Composite Pension Board (collectively, "Pension Board Defendants") (Doc. 135). Because there are no genuine issues of material fact in this case and both Defendants are entitled to judgment as a matter of law on each of the remaining claims, the Court will grant both Defendants' Motions for Summary Judgment.

FACTUAL BACKGROUND

This case arises out of suspension of the pension benefits of retired fireman John Loscombe ("Plaintiff"). Plaintiff's date of retirement was May 10, 2011, and he began receiving his bi-monthly pension check on August 15, 2011. (Doc. 65, Ex. 4.) At the time he retired, Plaintiff was a Fire Captain. Id. Plaintiff's pension was calculated based on 50% of his total salary, amounting to payments of $887.73 every two weeks. Id. The classification of the "type of benefit" Plaintiff received was "service disability." Id. Plaintiff was appointed to the City Council of Scranton on January 12, 2010. (Doc. 65, Ex. 5.) At the time of his appointment, Plaintiff was still receiving his bi-monthly pension. Id. Plaintiff receives $12, 500 annually in compensation from the City of Scranton as a City Councilperson. (Loscombe Tr. 60:10-12, Mar. 6, 2012, Doc. 107, Ex. 5.) On January 27, 2010, the Fireman's Pension Commission voted in favor of suspending Plaintiff's pension because he received compensation in his appointment to City Council. (Doc. 65, Ex. 8.) This was in accordance with § 99-80 of the City Code of Scranton ("the Ordinance"), which in relevant part, provides:

When any fireman is pensioned and thereafter enters the service of the City in any capacity with compensation the pension of such person shall be suspended during his term of service. Upon termination of such compensated service the pension payments shall be resumed on request of the pensioner.

Scranton, Pa., Code of the City of Scranton ch. 99, art. V, § 99-80 (1997). On February 2, 2010, Brian Scott, Secretary of the Firemen's Pension Commission, wrote a letter to Plaintiff advising him that his pension had been suspended and requesting a refund of the January 28, 2010 pension payment which already been direct deposited. (Doc. 65, Ex. 10.) When Plaintiff's appointed term as City Councilperson expired, he ran for City Councilperson in the May 2011 primary and the November 2011 general election. (Loscombe Tr. 16:12-25, Mar. 6, 2012, Doc. 107, Ex. 5.) Plaintiff was elected for and is currently serving a four-year term as City Councilperson. Id. Like Plaintiff, the pension of retired fireman Thomas Davis, who was appointed to Superintendent of Fire of the Scranton Fire Department, remains frozen until he no longer serves in this position. (Doc. 65, Ex. 12.)

PROCEDURAL HISTORY

Plaintiff filed his initial Complaint (Doc. 1) on June 3, 2010 against Defendant City of Scranton. On February 17, 2012 the Court granted Plaintiff's Motion for Leave to File Second Amended Complaint (Doc. 21). Plaintiff filed his Second Amended Complaint (Doc. 29) on February 17, 2012, adding the City of Scranton Firemen's Pension Commission, Firemen's Relief and Pension Fund Commission, and Composite Pension Board, ("Pension Board Defendants") and Mayor Chris Doherty in his official and individual capacity as Defendants. On August 10, 2012, the Court issued a Memorandum and Order (Doc. 95) addressing Motions to Dismiss Plaintiff's Second Amended Complaint (Doc. 29) filed by Defendants City of Scranton and Mayor Chris Doherty (Doc. 34) and the Pension Board Defendants (Doc. 39). The Court dismissed all claims against Defendant Doherty as well as Plaintiff's First Amendment retaliation claim (Count I) and unlawful seizure and taking claim (Count IV) without prejudice, but granted Plaintiff leave to amend those claims. It also dismissed Plaintiff's substantive and procedural due process claims (Count II), First Amendment free speech (Count III), and Fifth Amendment vagueness claims (Count III) with prejudice. His First Amendment claims for freedom of association and overbreadth, Fifth Amendment takings claim, and Fourteenth Amendment Equal Protection claims were allowed to proceed. Loscombe v. City of Scranton, 902 F.Supp.2d 532, 548 (M.D. Pa. 2012). Plaintiff filed his Third Amended Complaint in this § 1983 action on August 29, 2012. (Doc. 97.) On September 14, 2012, Defendants City of Scranton and Mayor Chris Doherty filed a Motion to Dismiss (Doc. 99), and the Pension Board Defendants did likewise on September 17, 2012 (Doc. 102). Plaintiff moved for partial summary judgment on September 19, 2012. (Doc. 105.) In its May 20, 2013 Memorandum and Order, the Court granted in part and denied in part Defendants City of Scranton and Mayor Chris Doherty's Motion to Dismiss (Doc. 99) and the Pension Board Defendants Motion to Dismiss (Doc. 102). Defendant Doherty was dismissed from the action in his individual and official capacities. Court I, the First Amendment retaliation claim, and Count IV, the unlawful seizure and taking claim of Plaintiff's Third Amended Complaint were dismissed with prejudice. Plaintiff's Motion for Partial Summary Judgment (Doc. 105) was denied. Loscombe v. City of Scranton, No. 3:10-CV-1182, 2013 WL 2177768, at *13 (M.D. Pa. May 20, 2013). The City of Scranton and Pension Board Defendants have moved for summary judgment on the remaining claims in the action: Plaintiff's First Amendment freedom of association and overbreadth claims, Fourteenth Amendment Equal Protection claim, and Fifth Amendment takings clause claim. These motions have been fully briefed and are thus ripe for review.

LEGAL STANDARD

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). However, where there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that "the non-moving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).

"To prevail on a motion for summary judgment, the non-moving party must show specific facts such that a reasonable jury could find in that party's favor, thereby establishing a genuine issue of fact for trial." Galli v. N.J. Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir. 2007) (citing Fed.R.Civ.P. 56(e)). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Id. (quoting Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary judgment, "the judge's function is ...


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