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Michalesko v. Borough

United States District Court, M.D. Pennsylvania

April 29, 2014

FREELAND BOROUGH, et al., Defendants

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For Scott D. Michalesko, Plaintiff: Cynthia L. Pollick, LEAD ATTORNEY, The Employment Law Firm, Pittston, PA.

For Freeland Borough, Robert J. Quinn, John Budda, John Potoskie, Barbara Tulanowski, Rick Wenner, Joseph Palko, Jr., Daniel Bobby, Defendants: John P. Morgenstern, LEAD ATTORNEY, May Mon Post, Deasey, Mahoney, Valentini & North LTD., Philadelphia, PA.


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MALACHY E. MANNION, United States District Judge.

Scott D. Michalesko spent nearly twelve years as an officer with the Freeland Borough police department. During the last year of his service, he broke both elbows, one wrist, also sustaining injuries to his ribs and face while apprehending a criminal. He recovered for four months before he was cleared by his doctor to return to limited duty. One week after being cleared by his doctor, he was notified that borough officials were conducting an investigation into whether some of his actions warranted suspension. The next day, December 22, 2011, a friend of the family called police and told them that Mr. Michalesko held a gun to his head and threatened to commit suicide. After his daughter was able to calm him down and the gun was taken away, she took him to the hospital before the Pennsylvania State Police arrived. Mr. Michalesko voluntarily checked himself into the hospital to receive mental treatment, but only remained there for a few hours.

After becoming aware of the situation, the Freeland Borough's chief of police sent a letter to the borough council to notify them of the situation and request council to relieve Mr. Michalesko of his duties for the time being. Approximately two weeks later, the Freeland Borough council voted to temporarily suspend plaintiff without pay. A hearing was conducted roughly a month later where the council received evidence from both the Borough solicitor and Mr. Michalesko. At a later meeting, council voted to terminate the plaintiff for actions unbecoming an officer. That decision was later overturned by an arbitration panel. The plaintiff is now pursuing alleged violations of his constitutional rights and rights under the ADA and PHRA.

The court finds the plaintiff has stated valid due process and first amendment claims against the Borough at this stage of the proceedings. However, the individual members of the council are entitled to qualified immunity as to the due process claim, but not as to the first amendment claim. Further, the court finds the plaintiff

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has failed to state a claim under both the ADA and the PHRA. As such, those claims are dismissed.


The plaintiff, Scott D. Michalesko was a police officer for the Freeland Borough police department for approximately twelve years. He was also a member of the Fraternal Order of Police Officers Union and acted as the Bargaining Committee Chairman for his police department. In August 2011 he suffered various injuries, including two broken elbows, a broken wrist, bruised ribs, and a facial injury, while making an arrest. The day after he was injured he requested and was granted Heart and Lung benefits based on his physical ailments. (Doc. 6, p. 4). The plaintiff was unable to work from the date of his injury through early December.

In early September he informed the Freeland Borough council that the union intended to proceed with binding interest arbitration [1]. Starting in early December, the plaintiff alleges that the defendants who were members of the Freeland Borough council during this period, Robert Quinn, John Budda, John Potoskie, Rick Wenner, Barbara Tulanowski, Joseph Palko, Jr., and Daniel Bobby (hereinafter referred to collectively as the " the council members" ), all engaged in a campaign of harassment against him. He claims they disparaged him by claiming he was able to return to work, pressured him to return to work without full medical clearance, made false accusations of criminal wrongdoing against him, suspended him without pay, and terminated him in February, 2012. (Doc. 6, p. 7).

The plaintiff avers that on December 6, 2011, the defendants determined he was ready to return to work and, as such, " they were going to terminate his Heart and Lung benefits." Approximately one week later, the plaintiff's doctor cleared him to return to work in a limited capacity. There is no allegation that the defendant's actually terminated those benefits prior to him being cleared to return to work the next week. The doctor went on to state that he would be able to resume his full duties within two to three weeks. (Id., p. 5). Despite this clearance, it does not appear that the police department scheduled him to work at all between the middle of December and first week of January, 2012.

Although it is unclear from the complaint and additional filings, the plaintiff and the council members had some type of meeting on December 20, 2011 concerning the continuation of his benefits. The council members sent the plaintiff a letter the next day regarding that meeting, but again it is not apparent to the court the exact nature of the conflict, based on the available pleadings and documents. (Doc. 11, Att. 2; Doc. 20, Att. 4).

The day after that letter was sent, the plaintiff was in his basement when he called his daughter.[2] She was worried about her father's recent depression, so she went down to see what was going on. She found him with a gun in his hand, but

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not pointed at his body. After his daughter took the gun, she called her mother and told her what happened. The plaintiff's wife then called a friend who reported the incident to the Pennsylvania State Police.[3]

When the friend called 911, he reported the plaintiff put a gun to his head and threatened to commit suicide in front of his family. State troopers responded to the scene and upon arrival found the plaintiff had already departed for the hospital with his daughter. The troopers headed to the hospital, but were called off when Wilkes-Barre police said he had arrived at Wilkes-Barre General Hospital and agreed to commit himself for treatment. The troopers then returned to the plaintiff's home and seized three of his handguns. (Doc. 11, Att. 2).

A short time later, a member of the Freeland Borough police department became aware of the incident and contacted the state police. The state police reported they responded to a call for the plaintiff who " held a pistol to his head and threatened to commit suicide in front of his family members." After gathering some additional information, the Freeland officer contacted Police Chief Nadine Sist. Chief Sist told the officer to go to the hospital to ensure the plaintiff was not armed and did not pose a threat to himself, his family, or the public. While en route to the hospital, the officer received a call from Wilkes-Barre police that the plaintiff and his daughter had arrived unharmed. When the officer got to the hospital, he learned that the plaintiff had checked himself in for mental health treatment. All of this information was later communicated to Chief Sist.

Chief Sist contacted council president Robert Quinn, Mayor Tami Martin, and council solicitor Donald Karpovich and apprised them of the situation. She then called the state police to see whether they had seized the plaintiff's service weapon, but they reported they had only found his personal firearms. A subsequent search of the plaintiff's locker revealed his service weapon was left at the police station. (Doc. 11, Att. 2).

Later that same day Chief Sist wrote a letter to the council members informing them of the alleged suicide attempt and later events. At the close of the letter, she requested they consider relieving the plaintiff of his duties for the safety of fellow officers and the safety of the community. She continued to state that " it could not be determined if this kind of action could be repeated and he or others would be placed in harm's way. This is not a circumstance the department should take chances on." (Doc. 11, Att. 2).

On January 2, 2012, Robert Quinn sent a letter on behalf of the Freeland Borough Council notifying the defendant that they were aware of the alleged suicide attempt and the other events that occurred that same day. The council further notified the plaintiff that a hearing would be conducted approximately two weeks later to determine whether the incident constituted grounds for termination under Section 1190 of the Borough Code, 53 P.S. § 46190. The letter informed him of his right to present evidence, as well as council's wish that the plaintiff undergo a mental

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health evaluation by a doctor selected by the Borough.

The next day, the council held a regularly scheduled meeting and voted to suspend the plaintiff without pay pending a final hearing regarding his conduct. There is nothing to indicate whether the plaintiff was aware of this meeting. Mr. Quinn sent a letter to the plaintiff on January 4 notifying him that the council's decision was based on the allegations contained in two letters sent in December and January, respectively. Again, the court is unsure what allegations were contained in the December 21, 2011 letter as neither party has sufficiently explained the context of that communication. It also appears that the final termination hearing was moved back to accommodate his lawyer's schedule the last day in January. (Doc. 11, Att. 2).

On January 31, 2012, the council members held a hearing to review the plaintiff's actions on December 22, 2011. During the hearing, the Pennsylvania State Police report, the Freeland Borough Police report, and Chief Sist's letter were all read into the record. The plaintiff, who was then represented by counsel, opted not to make a statement, but rather objected to the general accuracy of the reports without getting into any specific details. The plaintiff also submitted two letters from his doctors prepared and dated after the December 22, 2011 incident. One letter indicated that the plaintiff was able to return to work without any physical restrictions. The ...

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