United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge
these civil actions, Plaintiffs William DeForte
("DeForte") and Evan Townsend
("Townsend") have sued the Borough of Worthington
(the "Borough") and its mayor, Kevin Feeney
("Feeney"),  for alleged wrongdoing in connection with
the termination of their employment as Borough police
officers. DeForte and Townsend (collectively,
"Plaintiffs") contend that the Borough and Feeney
(collectively, "Defendants), by their wrongful conduct,
violated Plaintiffs' right to due process, violated the
terms of Pennsylvania's Whistleblower Law, and tortiously
interfered with Plaintiffs' business relations.
Defendants have moved for summary judgment on Plaintiffs'
due process claims and seek a dismissal without prejudice of
the remaining state law claims.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1367. For the reasons that follow,
Defendants' motions for summary judgment will be granted.
was employed by the Borough as a police officer between July
2009 and November 5, 2012. (See Defs.' Ex. A,
Decl. of Debra L. Smith at ¶1, ECF No. 97-1; Defs.'
Ex. B, Affid. of William DeForte at ¶1, ECF No. 92-2;
Defs.' Ex. C, Worthington Borough Council Minutes, ECF
No. 97-3.) On November 5, 2012, DeForte was
terminated for alleged insubordination and possible offenses.
(Id.) At the time of his termination, DeForte was
serving as the Borough's Chief of Police.
was twice employed by the Borough as a police officer. His
first term of employment lasted from January 7 through July
9, 2011. The second term began on February 10, 2012 and ended
on November 5, 2012 when Townsend, like DeForte, was
terminated. (Smith Decl. ¶5; Defs.' Ex. D, Affidavit
of Evan Townsend, at 1, ECF No. 97-4.)
time of Plaintiffs' terminations, the Borough's
Police Department was comprised of four part-time officers,
including DeForte and Townsend. (Smith Decl. ¶¶ 2,
6, 9; see also Pis.' Br. Resp. Defs.' Mot.
Summ. J. at 4, ECF No. 101 (noting that every officer in the
Worthington Police Department worked part-time).) Neither
DeForte nor Townsend was salaried, and neither one received
benefits. (Smith Decl. ¶¶ 4, 8.) Both DeForte and
Townsend received an hourly wage. (Id.
¶¶2, 3, 6, 7.) Townsend earned $11.00 an hour,
while DeForte was paid $13.00 per hour and $19.50 per hour
for overtime. (Id. ¶¶3, 7.)
employed as police officers for the Borough of Worthington,
both DeForte and Townsend were simultaneously employed by
other police departments. (DeForte Affid. ¶¶5, 9;
Townsend Affid. ¶¶5-6.) Townsend served as a sworn
officer for other police departments and also attended SWAT
school. (Townsend Affid. ¶¶4, 6.) Townsend states
that "[s]ome of the Worthington Borough officers would
work movie details together, and when the need arose, they
would take calls in each other's towns."
(Id. ¶8.) DeForte was similarly
"rostered" as a part-time police officer for two
adjacent municipalities. (DeForte Affid. ¶9.) His
employment with the other police departments "ranged
from helping those departments with firearms qualifications,
to taking the occasional part-time shift [during] times that
[he] was not fulfilling [his] obligations as
Worthington's Police Chief." (Id.
¶12.) During the time period in question, DeForte was
also an undergraduate student at the University of
Pittsburgh. (DeForte Affid. ¶7.)
their multiple endeavors, Plaintiffs insist that their
employment with the Borough was their top priority and that
they were available at all times to fulfill their duties as
Worthington Borough police officers. DeForte claims that,
during his tenure as the Borough's police chief, he
"was available at all times for Worthington Borough
Police Business. This meant that [he] had to immediately
respond and abandon any and all other activities in [his]
life upon receipt of an emergency call relating to
Worthington Police Department matters." (DeForte Affid.
¶4.) He states that his "entire life revolved
around [his] responsibility as Worthington's Police
Chief, " (id. ¶6), and the requirement
that he be "on call any and all times" meant that
he had to be "available to respond to overdose deaths,
hostage situations, explosive devises, dead bodies, ethnic
intimidation complaints, and other police emergencies"
in the Borough. (Id. ¶5.) Regarding his
attendance at the University of Pittsburgh, DeForte asserts
that there were "often occasions" when he received
emergency calls for police business and, when this occurred,
he "immediately left [his] class in order to
answer" the call. (DeForte Affid. ¶¶ 7-8.)
DeForte maintains that his part-time employment with other
police departments was "subordinate" to his
employment with the Borough, (id. ¶11), and it
was "understood. . . that [he] would immediately abandon
all other activities in order to service the community of
Worthington Borough." (Id. ¶13.)
similarly maintains that he "was always on call any and
all times for Worthington Borough Police Department."
(Townsend Affid. ¶9.) According to Townsend,
"[t]his meant that [he] had to immediately respond and
abandon any and all other activities upon receipt of an
emergency call relating to Worthington Police Department
matters." (Id. ¶5.)
their respective terminations, Plaintiffs commenced separate
lawsuits alleging, among other things, that their loss of
employment constituted a deprivation of their respective
procedural due process rights. Thereafter, the two cases were
consolidated and extensive pretrial proceedings ensued, the
details of which are not relevant to the parties' present
filed their motions for summary judgment, asserting that
Plaintiffs' due process claims fail as a matter of law
insofar as DeForte and Townsend did not possess any
constitutionally protected property interest in their
employment. (See Case No. 2:13-cv-356 at ECF No. 96;
Case No. 2:13-cv-357 at ECF No. 50.) Plaintiffs have
responded to the motions, and the Defendants have filed their
reply. As a result, the Defendants' motions are ripe for
judgment is proper "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). An issue is genuine only if the evidence is such that
a reasonable factfinder could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). "In considering a motion for
summary judgment, a court must draw all reasonable inferences
from the underlying facts in the light most favorable to the
non-moving party." Emerson Radio Corp. v. Orion
Sales, Inc., 253 F.3d 159, 162 (3d Cir. 2001).
"When there is a disagreement about the facts or the
proper inferences to be drawn from them, a trial is required
to resolve the conflicting versions of the parties."
Am. Eagle Outfitters v. Lyle & Scott Ltd., 584
F.3d 575, 581 (3d Cir. 2009) (alteration and internal
quotation marks omitted). "To defeat a motion for
summary judgment, the nonmoving party must raise more than
some metaphysical doubt as to the material facts, and the
court must determine that a fair-minded jury could return a
verdict for the nonmoving party on the evidence
presented." Doe v. Luzerne Cnty., 660 F.3d 169,
175 (3d Cir. 2011) (internal citations, alterations, and
quotation marks omitted).
Plaintiffs' Federal Claims
due process claims are asserted under 42 U.S.C. §1983,
which affords a private right of action against:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws ...
42 U.S.C. § 1983. In order to state a claim under
Section 1983, a plaintiff must allege a violation of the
Constitution or federal law by a person acting under color of
state law. Riley v. Corbett, 622 F.App'x 93,
93-95 (3d Cir. July 29, 2015) (citing West v.
Atkins, 487 U.S. 42, 48 (1988)). Here, there is no
dispute that Defendants acted under color of state law when
they discharged DeForte and Townsend. Consequently, the only
question is whether the Defendants' conduct violated the
U.S. Constitution or federal law. Plaintiffs contend that
their respective rights to procedural due process were
offended inasmuch as neither officer received notice or a
hearing prior to termination.
establish a procedural due process claim, a plaintiff must
demonstrate that "(1) he was deprived of an individual
interest that is encompassed within the Fourteenth
Amendment's protection of life, liberty or property, and
(2) the procedures available to him did not provide due
process of law." Biliski v. Red Clay Consol. Sch.
Dist. Bd. of Educ, 574 F.3d 214, 219 (3d Cir. 2009)
(internal quotation marks and citation omitted). For present
purposes, Defendants do not challenge the assertion that
DeForte and Townsend were terminated from their jobs without
process. Instead, Defendants argue only that Plaintiffs had
no constitutionally protected "property" interest
in continuing their employment as Borough police officers.
a public employee has a property interest in his employment
sufficient to establish a due process claim is a question of
state law. Hill v. Borough of Kutztown, 455 F.3d
225, 234 (3d Cir. 2006); see also Board of Regents v.
Roth, 408 U.S. 564, 577 (1972). Public employees in
Pennsylvania have a property interest in their employment
only if they can "establish a legitimate expectation of
continued employment through either a contract or a
statute." Pipkin v. Pennsylvania State Police,
693 A.2d 190, 193 (Pa. 1997). Here, Plaintiffs have alleged
that they had a legitimate expectation of continued
employment by virtue of: (1) the Pennsylvania Borough Code,
(2) the Pennsylvania Police Tenure Act, (3) the Worthington
Police Department Policy and Procedure Manual, (4) the
Pennsylvania Whistleblower Law, and/or (5) a Worthington
ordinance setting forth a progressive discipline policy.
The Pennsylvania Borough Code
Pennsylvania "Borough Code, " currently codified at
8 Pa. Cons. Stat. Ann. §§101 et seq.,
contains certain civil service protections for police
officers and firefighters. See Id. at
§§1170-1194. At times relevant to this litigation,
the pertinent provisions of the civil service system were
codified at 53 Pa. Stat.
§§46171-46195. These provisions applied to boroughs
having a police force of at least three members. 53 Pa. Stat.
§46171(a). Section 46171 of the Code provided that any
"appointment to and promotion in the police force . . .
shall be made only according to qualifications and fitness,
to be ascertained by examinations which shall be competitive
as provided in this part." Id. §46171(c).
In addition, the Code ensured that "[n]o person shall
hereafter be suspended, removed or reduced in rank as a paid
employe in any police force. . . except in accordance with
the provisions of this subdivision." Id.
§46171(d). Section 46190 specifically enumerated the
limited circumstances under which a "person employed in
any police . . . force" could be suspended, removed or
reduced in rank. 53 Pa. Stat. §46190. The term
"police force" was defined, in relevant part, as:
a police force organized and operating as prescribed by law,
the members of which devote their normal working hours to
police duty or duty in connection with the bureau, agencies
and services connected with police protection work, and who
are paid a stated salary or compensation for such work by the