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Mariano v. Borough of Dickson City

United States District Court, M.D. Pennsylvania

November 6, 2014



MALACHY E. MANNION, District Judge.

Defendants filed the instant motion for reconsideration of this court's granting in part and denying in part, (Doc. 43), its motion for summary judgment on plaintiff's claims: a false light claim, a due process claim for injury to plaintiff's reputation, and a due process claim for failing to afford plaintiff appropriate process when he was terminated from employment. The court granted summary judgment as to the false light and reputation claims, but allowed the due process claim to go forward. Defendants now contest that ruling. (Doc. 44).


This suit centers on the events surrounding the removal of plaintiff Anthony Mariano from the police department of the Borough of Dickson City, the particular facts of which are more fully detailed in the court's memorandum regarding defendants' summary judgment motion. (Doc. 42, at 2-7). Plaintiff was a part-time police officer in the Borough of Dickson City. Believing that he had rights under the collective bargaining agreement ("CBA") between the police department and the borough, he began to look into the agreement. Around the same time, he also wrote a letter to the chief of police expressing that he felt singled-out and unfairly treated by the chief. Soon thereafter, plaintiff was removed from the police department work schedule. The police department chief and the borough claim that plaintiff was removed from the schedule for problems with his work performance. Plaintiff disputes that, alleging that the charges are "trumped up, " and that any issues were violations of rules that other police officers routinely transgressed without punishment and that were not enforced with regularity. Plaintiff alleges that he was removed from the schedule for seeking to take advantage of his rights under the CBA. Plaintiff further alleges that he was removed from the schedule without the procedure he was due.

After he was removed from the schedule at a meeting on April 1, 2012, Officer Mariano wrote a letter in response to the charges which caused him to be removed from the schedule. Plaintiff's letter denies that he defied a direct order, and argues that he was reprimanded and removed from the schedule for minor infractions which were committed routinely by many of the other officers in the police department. He argued that enforcement of these infractions was being directed at him, but not at other officers who violated them. The letter also lists some problems that plaintiff had with Chief Bilinski and asked that he be placed back on the schedule immediately. The letter was copied to Mayor Zaleski and Borough Council members. (Doc. 34-3).

Plaintiff also prepared four grievances. He gave them to the union representative, Officer Davitt. Officer Davitt testified that he presented the grievances to the other members of the bargaining unit and recommended that they be submitted to the Chief of Police as the first step of the grievance process. However, only one of the other members of the unit wanted to even discuss or consider the grievances, and so the group did not agree to submit them. Officer Davitt verbally informed plaintiff of this, and suggested that he file them with the chief without the bargaining unit representation. (Doc. 34-10, at 3). Plaintiff then attempted to give the grievances to Chief Bilinski, who refused to accept them because he had not received notice from the bargaining unit that there would be grievances, and because he did not believe that part-time officers had the right to grieve issues like the ones plaintiff was raising. (Doc. 34-6, at 16). Chief Bilinski did not look at or review the grievances before refusing them, and did not discuss with plaintiff whether he had attempted to submit them to the bargaining unit. Officer Davitt did testify that part-time officers were members of the bargaining unit in the borough. (Doc. 34-10, at 3).

Plaintiff next submitted his grievances to the Borough Council. He also attended several borough council meetings to ask for an opportunity to speak with them and be put back on the schedule. Council President Mecca does not recall receiving or reviewing Officer Mariano's grievances. (Doc. 34-11, at 10-11, 18, 21-22).

Some of plaintiff's claims were dismissed at the motion to dismiss stage of this litigation. (Doc. 26). In the summary judgment ruling that defendants ask us to reconsider, the court dismissed plaintiff's claims for a violation of due process causing injury to his reputation, and for false light invasion of privacy. (Doc. 43). The court allowed plaintiff's claim for a violation of due process in terminating plaintiff to go forward. The court allowed the claim to go forward because, while defendants argued that plaintiff had failed to exhaust his remedies under the CBA, they had failed to provide the court a copy of the CBA in effect at the time of plaintiff's termination, and so the court was unable to make a determination of what the processes afforded by the CBA actually were. Defendants also argue that the court erred in determining that Pennsylvania law grants plaintiff a protected interest in his continued employment as a police officer.


To succeed on a motion to reconsider, the moving party must demonstrate: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion... or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc. , 602 F.3d 237, 251 (3d Cir. 2010).

Defendants' first ground for arguing for reconsideration is that the court erred in not considering the CBA at the summary judgment stage, which amounts to a clear error which will cause a manifest injustice. The court did not consider the CBA defendants attached to their motion for summary judgment because it was clearly dated as being in effect from 2007-2009. The relevant time period for this case is 2012. Despite defendants' repeated claims that "the Court was in possession of the CBA in effect at the time in question, " the court could not have reasonably decided that although the document in its possession was clearly dated as effective for a finite, earlier time frame, it applied just as well to events more than two years after its apparent expiration.

Defendants also argue that because plaintiff made no objection to the CBA in the record, the court should also not have objected to the obvious fact that its date rendered it irrelevant to the questions at hand. Defendants effectively argue that the court must consider patently inapplicable documents unless a party objects to those documents. This suggestion defies logic. Defendants' failure to include the proper documentation to demonstrate that the CBA was in effect in April 2012 was their error, not the court's, and it is an error they have compounded by continuing to blame the court for not considering the CBA as it was originally presented.

However, this is an unusual circumstance. Defendants did provide a substantial part of a document that does have a controlling effect on the outcome of this litigation at the summary judgment stage, and have since attached further documentation demonstrating that the relevant portions of that document had controlling effect in April of 2012, the time when plaintiff was removed from the schedule. To ignore the fact that the CBA applies, and that plaintiff failed to exhaust his remedies, would be a manifest injustice to both parties, who would spend additional money and time preparing for and beginning a trial, only to find out that the controlling CBA demonstrates that plaintiff failed to exhaust his remedies under it, and that his case must therefore be dismissed. While the court does not condone defendants' laxity in providing the correct CBA, the court would only exacerbate the harm caused by that mistake if it failed to consider the CBA at this stage.

As discussed in the summary judgment memorandum, there is no general exhaustion requirement for a claim under 42 U.S.C. ยง1983. See Patsy v. Board of Regents of State of Florida , 457 U.S. 496. However, where a plaintiff, as here, brings a claim for violation of the right to procedural due process, a plaintiff "must have taken advantage of the processes that were available, unless those processes were patently inadequate." Alvin v. Suzuki , 227 F.3d 107, 116 (3d Cir. 2000). Where there is an available grievance process, a plaintiff alleging a procedural due process violation must pursue that process before seeking redress in the courts, unless the grievance process is blocked or there is evidence that it is a sham. Garzella v. Borough of Dunmore , 280 Fed.Appx. 169, 173 (3d Cir. 2008). The failure to ...

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