United States District Court, E.D. Pennsylvania
DANIEL J. SAVAGE Plaintiff,
PENNSYLVANIA TURNPIKE COMMISSION Defendant.
D. Mariani, United States District Judge.
Introduction and Procedural History
December 8, 20');">2015, Plaintiff, Daniel Savage, filed this action
against his former employer, the Pennsylvania Turnpike
Commission ("the Commission") (Doc. 1).
Plaintiff's three count Complaint alleges violations by
Defendant of Plaintiff's constitutional right to free
speech and association pursuant to 42 U.S.C. § 1983 and
the Pennsylvania Constitution.
Pennsylvania Turnpike Commission moved to dismiss the
Complaint on February 12, 20');">2016 (Doc. 8). The Court held oral
argument on Defendant's Motion on June 3, 20');">2016. By
Memorandum and Order entered June 27, 20');">2016, this Court denied
the Pennsylvania Turnpike Commission's motion to dismiss
while limiting Count III, brought under the Pennsylvania
Constitution, to declaratory and injunctive relief. (Docs.
September 14, 20');">2017, the Commission moved for summary judgment
(Doc. 54). As of November 30, 20');">2017, all briefing by the
parties was completed and the motion is now ripe for
resolution. (See Docs. 55, 61, 65-67). For the
reasons that follow, the Court will deny Defendant's
Statement of Material Facts
Pennsylvania Turnpike Commission submitted a statement of
material facts as to which it contends there is no dispute,
in accordance with Local Rule 56.1 of the Middle District of
Pennsylvania Rules of Court. (Doc. 55). Plaintiff Savage
responded to the Commission's statement of material facts
(Doc. 61-2). In addition, Plaintiff filed his own
counter-statement of material facts (Doc. 61-2) although, as
properly noted by the Commission, such a counter-statement of
material facts is not contemplated by the language of Local
Rule 56.1. Nonetheless, the Defendant Commission responded to
the specific paragraphs of Plaintiff's counter-statement
of material facts and accordingly, the undisputed material
facts set forth herein are drawn from both the
Defendant's statement of material facts, Plaintiff's
paragraph-by-paragraph response thereto, and Plaintiff's
counter-statement of material facts which was likewise
responded to by the Commission in the same manner.
where noted, the following facts are undisputed.
Defendant's Statement of Material Facts
Commission is an independent agency of the Commonwealth of
Pennsylvania, created to construct, operate, and maintain the
Pennsylvania Turnpike, the Beaver Valley Expressway, Amos K.
Hutchinson Bypass, Mon/Fayette Expressway, Southern Beltway,
and Northeast Extension. (Def.'s Statement of Undisputed
Material Facts ("DSOF"), Doc. 55, at ¶ 1).
Savage originally worked at the Commission from August 20');">2003
to November 20');">2006, first as a business representative and
later as a safety compliance manager. Plaintiff was
recommended for the job by then-Commissioner Mitchell Rubin.
(Id. at ¶ 2).
November 20');">2006, the Plaintiff was elected in a special
election as a member of the Philadelphia City Council, at
which time he voluntarily left his employment at the
Commission. (Id. at ¶ 3). Savage served on the
Philadelphia City Council until January 20');">2008, but then lost
his seat in the next regular election. (Id. at
learned that then-Eastern District manager, Carmen Marrone,
was leaving and Plaintiff presumed that Robert Brady would be
taking his position. Plaintiff then contacted Commission
Chairman Mitchell Rubin to ask if Robert Brady's position
would be available. Chairman Rubin informed the Plaintiff
that Robert Brady's position was not available but that
there might be another position for which Plaintiff was
qualified. (Id. at ¶ 5; Pl.'s Resp. to
Def.'s Statement of Material Facts ("Pl.'s
Resp."), Doc. 61-2, at ¶ 5). Plaintiff denies that
he contacted any other individual at the Commission to see if
there was an open position. (Pl.'s Resp., at ¶ 5).
October 22, 20');">2008, Savage was offered the position of Regional
Office Coordinator at the Eastern Regional Office
("ERO"), reporting to Robert Brady. In that
position, Plaintiff oversaw purchasing for the ERO and
managed the ERO's fleet of "pool cars" for
employees that needed to travel for work. (DSOF, at ¶
employed in that position, Savage signed and acknowledged
receipt of the employee handbook, which he described as
"the rules of being an employee of the Pennsylvania
Turnpike Commission." (Id. at ¶ 7). The
handbook included the following statement:
The attached list contains those policy letters in effect at
the time of publication of this Employee Handbook. Policy
letter are regularly updated. All policies are available for
review on the Commission's intranet.
If there is any difference between the handbook and the
policy letter, the policy letter governs. It is the
employee's responsibility to be aware of and familiar
with any changes and updates to existing policies and the
addition of any new policies.
As an employee of the Commission, you are expected to adhere
to Commission policies. Violators of these policies will be
(Pennsylvania Turnpike Commission Employee Handbook, Doc.
54-8, Ex. 1).
20');">2011 election, Savage sought to win his seat back on the
Philadelphia City Council. Plaintiff decided in January of
20');">2011 that he wanted to take a leave of absence to pursue
campaign activities full time. (DSOF, at ¶ 8). Savage
first inquired with his direct supervisor, Brady, and learned
that for any leaves of absence over ten days, he would need
to seek approval from human resources. (Id. at
January 3, 20');">2011, the Plaintiff called and then emailed Doreen
McCall, the Commission's Chief Counsel. In pertinent
part, Plaintiff's email to McCall stated:
This spring, 20');">2011, I will be a candidate for City Council in
the City of Philadelphia. Confirming our conversation, it is
my understanding that I can remain an employee of the PTC as
long as I do not take part in any political activity during
work hours at the PTC.
54-8, Ex. 2).
time Savage wrote this email to Doreen McCall, the
Commission's Code of Conduct (Policy Letter 3.10) did not
prohibit employees from running for office. The Code of
Conduct only prohibited Members or Executive-Level Employees
(other than the Secretary of Transportation) from being
"a Public official or Party Officer" in the State.
(DSOF, at ¶11).
responded to Savage's January 3, 20');">2011 email, stating that
"[b]ased on the facts as provided to me, the
Commission's Code of Conduct would not prohibit you from
running for political office." (Doc. 54-8, Ex. 2).
McCall further stated that based on Plaintiff's job
duties, he was unlikely to be considered as an
"Executive-Level Employee" and that, because his
position did not involve programs funded with federal money,
the federal Hatch Act would not apply. (DSOF, at¶ 12).
thereafter requested, and was granted, a 45 day leave of
absence. (Id. at ¶ 13) (seea/so, Doc. 54-8,
lost his election bid for Philadelphia City Council. He
returned to work at the Commission in the same position he
had held before. (Id. at ¶ 15).
February, 20');">2013, Mark Compton started as the Commission's
new CEO. Compton had previously been employed as Deputy
Secretary for Administration at the Pennsylvania Department
of Transportation ("PennDOT"). (Id. at
March of 20');">2013, Pennsylvania's Attorney General released a
presentment accusing several former Commission employees of
various forms of corruption. (Id. at ¶ 17).
Savage admits that the presentment accused several executives
and managers of illegal procurement practices, citing to
Compton's deposition. (Pl.'s Resp., at ¶ 17).
During Compton's deposition, he explained that
"[t]he presentment was about procurement practices
within the Commission. It was also about one or two of the
employees' lost time, ghost employee type stuff."
(Dep. of Compton, at 60:3-7). Compton further explained that
"[i]t was political givings through different vendors
and things like that as well." (Id. at
62:9-11). Plaintiff denies that the presentment
"implicated the issue of Commission employees running
for office or otherwise engaging in political
activities", again citing to Compton's deposition.
(Pl.'s Resp., at¶ 17).
presentment named, among others, the Commission's former
CEO, Joe Brimmeier, and a former Commissioner, Mitchell
Rubin. (DSOMF, at ¶ 18).
Commission asserts that, in the wake of the presentment, it
charged Mark Compton with reviewing all of the
Commission's policies and implementing a series of
reforms, both to prevent employees from engaging in similar
wrongdoing in the future and to clean up the public's
perception of the Commission. (DSOF, at¶19). In
response, Plaintiff admits "only that Mr. Compton was
charged with a review of Commission policies that arose from
the allegations in the presentment relating to procurement
policies." (Pl.'s Resp., at ¶ 19). Savage
denies that the directive dealt with policies relating to
employees running for office.
Marchl8, 20');">2013, the Commission issued a press release entitled
"PA Turnpike CEO Announces Additional Reforms to
Operations." (Doc. 54-8, Ex. 5). In the release, CEO
Compton detailed the steps the Commission planned on taking,
including "conven[ing] a special advisory group to
review and critique current Turnpike policies and procedures
relating to contracting and other business practices to see
where continued improvements can be made and to research
best-practices at comparable agencies to learn from their
experience and protocols." (Id.; see also,
DSOF, at ¶ 20');">20).
Commission's Advisory Committee consisted of the
Honorable Maureen Lally-Green, a retired Pennsylvania
Superior Court judge, M. G. Patel, former Chief Engineer at
PennDOT, and Professor John L. Gedid, Professor and Vice-Dean
of Widener University School of Law. (DSOF, at ¶ 21).
While Plaintiff acknowledges the appointment of an Advisory
Committee, he responds that the Advisory Committee Report set
forth only recommendations to "minimize or eliminate
undesirable practices cited in the presentment and did not
recommend that any change be made to the policy prohibiting
employees from holding public office." (Pl.'s Resp.,
at ¶ 21).
Commission CEO Compton requested that Stacia Ritter, Director
of Government Affairs for the Commission at that time,
conduct research about the different kinds of codes of
conduct in effect at other Pennsylvania government agencies.
(DSOF, at ¶ 23). According to Defendant, Ritter
responded in April, 20');">2013, by providing a detailed chart
describing the policies in place under the rules of the House
of Representatives and Senate, the Governor's Code of
Conduct, State Executive Order 1980-18, and the Gaming
Board's Code of Conduct. (Id. at ¶ 24).
Plaintiff denies the Defendant's statements made in
paragrap. 24, asserting that the "detailed chart"
cited by Defendant is unreadable. Although Plaintiff and
Defendant agree that Stacia Ritter also produced a
memorandum, the parties disagree as to whether the
memorandum, and specifically the page designated PTC001825
(Doc. 54-9, Ex. 7), addresses any issue related to political
activity. (DSOF, at ¶ 25;Pl.'s Resp., at ¶ 25).
20');">2013, in-house attorneys at the Commission met with outside
counsel who were retained to advise the Commission about
making changes to the Commission's Code of Conduct.
(DSOF, at ¶ 26).
summer of 20');">2013, the Commission was reviewing its policies to
determine whether they needed to be updated and the
Commission had convened the Advisory Committee to further vet
the Commission's policies. (Id. at ¶ 27).
respect to the addition of a policy that would prohibit
employees from running for office while employed at the
Commission, Compton testified that implementing this new
policy was his idea, explaining:
[M]y biggest fear is that the Senate or the House would ask
us to house somebody in order for them to run for office. I
didn't want us to be the housing entity for anyone to
hang out to run for office. I wanted to have really the same
process in place that I knew at PennDOT.
of Compton, at 71:20');">20-72:3; DSOF, at ¶ 28). Compton also
explained that, before he started his position at the
Commission, "someone" at the Commission had run for
"district magistrate or district justice" in
western Pennsylvania. That individual was elected and thus
preparing to leave the Commission, which prompted Compton to
think about the Commission's policy in that regard. (Dep.
of Compton, at 63:21-64:20');">20; DSOF, at ¶ 29).
undisputed that on or around September 26, 20');">2013, a draft of
the new Code of Conduct was proposed and discussed in
executive session with the Commissioners. (DSOF, at ¶
30). However, Plaintiff asserts that "the September 27,
20');">2013 draft of the Code of Conduct did not include any
prohibition against Commission employees running for public
office." (Pl.'s Resp., at ¶30).
revised proposed Code of Conduct was presented at the October
11, 20');">2013, Commission meeting. (DSOF, at ¶ 31). Plaintiff
notes that this revised draft also did not contain any
prohibition against Commission employees running for public
office. (Pl.'s Resp., at ¶ 31).
November 1, 20');">2013, the Commission was presented with another
revised proposal. The November 1, 20');">2013, version of the
proposed Code of Conduct included, for the first time, a
resign-to-run provision. (See Doc. 54-10, Ex. 15). Plaintiff
asserts that "this provision was added a week after
Plaintiff's October 23, 20');">2013 fundraiser and Senator
[Vincent] Hughes' unsuccessful attempts to threaten the
hosts of that fundraiser into withdrawing their support for
Plaintiff's candidacy, and was added during the same time
period in which [Commissioner Pasqual] Deon met with Senator
Hughes and was called into a private meeting with Senator
[Christine] Tartaglione." (Pl.'s Resp., at ¶
the January 7, 20');">2014, meeting of the Commissioners, the
Commission unanimously passed the revised Code of Conduct.
(DSOF, at ¶ 33). The minutes of the Commission's
January 7th meeting address the approval of the revised Code
of Conduct under "New Business", under the
subheading "Payment of Invoice", as follows:
Motion - That the Commission approves the revisions to Policy
Letter 3.10, Code of Conduct, to expand the policy to create
a more comprehensive Code of Conduct for Commission employees
- was made by Commissioner Logan, seconded by Commissioner
Deon, and passed unanimously.
54-11, Ex. 17).
Code of Conduct adopted on January 7, 20');">2014, contains the
following subsection 9.3 in Section IX ("Public Office
and Party Affiliation"):
No Executive-Level employee or Employee shall be a candidate
for nomination or election to any State or Federal Office
unless he or she shall have first resigned from his or her
employment with the Commission. State Office shall be deemed
to include the following offices in the Commonwealth of
Pennsylvania: Governor, Lieutenant Governor, Attorney
General, Auditor General, State Treasurer, Senator and
Representative in the General Assembly, and Judge or Justice
of any Court of the Commonwealth, including Magisterial
District Court and Municipal Court. Federal Office shall be
deemed to include Senator and Representative in the United
(Doc. 54-11, Ex. 16).
Advisory Committee reviewed the revised Code of Conduct as
part of its 18-month review process and "commended the
Commissions' [sic] substantial reform
efforts" in its final report, (Id. at ¶
January 7, 20');">2014, the Commission's Chief Operating
Officer, Craig Shuey, sent representatives of the three
unions representing Commission employees a copy of the new
Policy Letter 3.10, indicating it would be effective as of
January 22, 20');">2014. (DSOF, at ¶ 36). On January 27, 20');">2014,
the new Code of Conduct was posted in the "Document
Library" section of the Commission's Intranet and
Extranet. (Id. at ¶ 38). Savage testified that
although he knew there was a "Document Library"
page on the Intranet, he did not recall if he looked at it in
20');">2014. (Id. at ¶ 39).
respect to the update to the Code of Conduct, Patricia
Schlegel, the Commission's director of human resources,
[T]he legal department was responsible for publishing it and
it was published in the document section of intranet. It was
not in the policy part of intranet because there were issues
with an unrelated part of the Code of Conduct regarding
personal leave. And those issues had to be resolved before it
was put under the policy letters.
(Dep. of Schlegel, at 24:21-25:5).
Commission asserts that the new Code of Conduct was further
disseminated to employees beginning on January 31, 20');">2014, when
the Commission's attorneys, Al Peters and John Dwyer,
began providing mandatory training sessions to employees with
respect to the revisions. (DSOF, at ¶ 41). Savage, while
admitting that "some employees received the email
referred to in Paragraph 41 of Defendant's Statement of
Material Facts and some attended the referenced training,
" denies that "all employees received that email or
that Plaintiff was sent the email or were aware of its
contents." (Pl.'s Resp., at ¶ 41). Further,
Savage denies that he was invited to attend the referenced
training. (Id.). Plaintiff similarly denies
Defendant's statement of material facts relating to what
occurred during the training session, again stating that
while "it is admitted that some employees received the
e-mail referred to in Paragraph 41 of Defendant's
Statement of Material Facts and some attended the referenced
training, it is denied that all employees received that email
or that Plaintiff was sent the email or were aware of its
contents." (Id. at ¶¶ 42, 43).
response to the Commission's statement of fact that
"Plaintiff was aware of the training session and had
heard rumors about a new policy being passed, but he decided
to not directly ask Brady or the legal department about the
rumor of a new policy", Savage admits "only that
Plaintiff heard rumors about a policy being passed because
people at the Commission were not happy with Plaintiff
running for State Senate, that Plaintiff was aware that
training sessions were being held, and that Plaintiff did not
ask Brady or the legal department about the rumor."
(DSOF, at ¶ 46; Pl.'s Resp., at ¶ 46).
was interviewed by a local newspaper reporter, Tom Waring,
about Savage's intention to run for State Senate in the
Second Senatorial District. The article appeared on February
12, 20');">2014. (DSOF, at ¶ 48; Pl.'s Resp., at ¶
48). Savage however denies that he gave the following quote
to Waring attributed to him in the article: "Due to the
code of conduct of my job, I cannot announce my candidacy or
take any public endorsements." (Id.).
Nonetheless, Plaintiff admits that paragraph 50 of
Defendant's Statement of Material Facts accurately
reflects Mr. Waring's deposition testimony that
"although he does not specifically recall taking this
interview, he took notes from his conversation and recorded
it in the newspaper article within days of the
conversation." (DSOF, at ¶ 50; Pl.'s Resp., at
understood that the previous version of the Code of Conduct
did not prohibit employees from running for office. (DSOF, at
undisputed that Savage testified that he informed co-workers
at the Commission of his impending run in June 20');">2013.
Plaintiff then held his first "kickoff" fundraiser
in July 20');">2013, however Plaintiff claims that he had not yet
obtained signatures or filed his petition to become a
candidate at that time because he viewed state law as
specifying a time frame when he could do so. (DSOF, at ¶
51; Pl.'s Resp., at ¶ 51). Commission CEO Compton
and Commission COO Shuey became aware that Savage was
considering a potential run in the summer of 20');">2013. (DSOF, at
about March 7, 20');">2014, Savage approached his immediate
supervisor, Robert Brady, to inform him that he intended to
seek a 45-day leave of absence to permit him to devote more
time to campaigning. (Id. at ¶ 53). Savage
admits that Brady emailed his version of the conversation he
had with Plaintiff to Patricia Schlegel but denies that the
conversation contained any statement by Brady regarding the
implications of the new Code of Conduct. (DSOF, at ¶ 54;
Pl.'s Resp., at ¶ 54).
also admits that on March 10, 20');">2014, he sent a letter to Human
Resources formally requesting the leave of absence and that
he referred to Doreen McCall's approval of a similar
leave in 20');">2011. (Pl.'s Resp., at ¶ 55). Savage filed
his petitions that same day. (DSOF, at ¶ 56; Pl.'s
Resp., at ¶ 56). Although Plaintiff admits that he filed
his petitions to become a candidate on March 10, 20');">2014, he
denies that he was not a candidate for office before that
date. (Pl.'s Resp., at ¶ 56).
further admits that on March 13, 20');">2014, Schlegel addressed a
letter to Savage stating:
It has come to our attention that you have filed the
necessary documents to have your name appear on the ballot
for elective office in the May 20');">20, 20');">2014 primary election. You
have filed to run for Pennsylvania Senate.
On January 7, 20');">2014, the Commission approved revisions to
Policy Letter 3.10 (Code of Conduct), which, among other
things, prohibit employees from being a candidate for
nomination or election to any State or Federal Office unless
he or she resigns from Commission employment. Robert Brady
specifically informed you of the policy changes and advised
that they would be applicable to you should you choose to run
for State office.
Contrary to your understanding, the fact that revisions to a
Policy Letter have not been updated on the Turnpike Intranet
does not affect its validity. Likewise, the Commission is not
required to obtain your signature as to your agreement or
disagreement with any policy letter. Any change to any policy
is within the sole discretion of the Commission.
Therefore, should you decide to remain a candidate for
Senate, you must resign your position within ten (10) days of
the date of this letter or your employment with the
Commission will be terminated.
(Id. at ¶58; Doc. 54-12, Ex.28).
has admitted that neither Schlegel nor Compton testified that
he would be fired even if he withdrew from the Senate race.
(Pl.'s Resp., at ¶ 60). However, Plaintiff further
states that "no Turnpike official assured Plaintiff
that, if he withdrew from the senate race, his employment
would not be terminated." (Id.). Nonetheless,
Plaintiff admits that he "did not directly seek that
assurance." (Id. at ¶ 61).
March 20');">20, 20');">2014, Plaintiff responded to the March 13, 20');">2014
letter sent to him by Schlegel. That letter in part states:
It is clear that I have been unfairly and unlawfully made a
target for retaliation for exercising my First Amendment
Rights. The coercive demand for me to withdraw as a candidate
for office as quid pro quo is also clear evidence of the true
illegal and improper purposes of these actions by you, the
Commission, and those acting in concert with it.
(Doc. 54-12, Ex.29).
March 24, 20');">2014, Schlegel sent Savage a letter terminating his
employment for violating § 9.3 of Policy Letter 3.10.
(Doc. 54-12, Ex. 30). The letter was preceded by the March
24, 20');">2014, approval for termination given by Compton to
Schlegel, and signed by Compton on March 26, 20');">2014. (Doc.
54-12, Ex. 31). Plaintiff admits that Schlegel sent him a
termination letter on March 24, 20');">2014 and that Compton
approved the termination of Plaintiff's employment on
March 26, 20');">2014. (Pl.'s Resp., at ¶ 64). Plaintiff
further admits that at a meeting of the Commissioners on
April 1, 20');">2014, the Commissioners unanimously approved
Savage's termination of employment. (DSOF, at
¶¶ 65, 66; Pl.'s Resp., at ¶¶ 65,
and the Commission present sharply divergent views with
respect to the existence or absence of evidence of any
political retribution by the Commission against Plaintiff.
Thus, Plaintiff does not admit and specifically disputes the
statements set forth in paragraphs 66, 67, 68, 69, 70 and 72
of the Defendant's Statement of Material Facts.
does admit that Senator Tartaglione requested that
Commissioner Deon meet with her in a private meeting but
denies that Deon and Tartaglione in their deposition
testimony confirmed that they did not discuss Plaintiff's
candidacy for Tartaglione's seat during that
conversation. (DSOF, at ¶ 73; Pl.'s Resp., at ¶
73). Plaintiff admits that Senator Tartaglione testified that
she had supported Plaintiff in his 20');">2011 campaign for City
Council and that she "had no knowledge of the
regulations or 'inner workings of the Turnpike. And
that's something that's not on my radar'"
(Id. at ¶ 74). Senator Tartaglione also
testified that she did not have a discussion with Deon
concerning Savage and that she had no discussion with anyone
on Deon's behalf, or representing or associated with
Deon, concerning Savage; that she had no discussion with
anyone from the Turnpike Commission concerning Savage; and
that she never asked anyone at the Turnpike to take action
with respect to Savage. (Id. at ¶ 75).
admits that "[d]uring discovery, Plaintiff has focused
extensively on phone calls that Senator Hughes made to some
of Plaintiff's supporters 'telling them that he did
not want them to raise money for Plaintiff's Senate
campaign or to otherwise support Plaintiff's
campaign.'" (Id. at ¶ 77).
further admits that "Senator Hughes testified that,
although he knew who Plaintiff was, i.e., that
Plaintiff was considering running against Senator
Tartaglione, he had "no recollection of 'knowing
where [Plaintiff] was employed, ' if anywhere."
(Id. at ¶ 78).
also admits the accuracy of Defendant's description of
Senator Hughes deposition testimony wherein Senator Hughes
testified that he made telephone calls to several of
Savage's campaign donors and explained that he supported
Senator Tartaglione because she is "[a] good Senator, a
good member of our caucus" and that he believed that
"[w]hen the Democrats in the Senate are low in
representation, are not in the majority, why would we want to
have a Democratic primary fight when those resources could be
used for the general election in other races where Democrats
could pick up seats.'" (Id. at ¶ 79).
In admitting the accuracy of Defendant's statement of
Senator Hughes' testimony, Plaintiff adds "it is
denied that a reasonable jury would necessarily ascribe his
stated motives as credible in light of his long association
with Senator Tartaglione and his support for her
candidacy." (Pl.'s Resp., at ¶ 79).
denies that Senator Hughes did not impliedly make threats by
the nature and tone of his phone calls, thus controverting
the statements of fact set forth by Defendant at paragraphs
80, 81 and 82 of its Statement of Material Facts. (DSOF, at
¶¶ 80-82; Pl.'s Resp., at ¶¶ 80-82).
Plaintiff's Counter-Statement of Material Facts
Commission admits paragraphs 1-7 and paragraphs 10-12 of
Plaintiff's Counter-statement of Material Facts. (See
Pl.'s Counter Statement of Material Facts
("PCSF"), Doc. 61-2; Def.'s Resp., Doc. 65-1).
These statements are essentially repetitive of the
Defendant's Statement of Material Facts in that they
present historical information concerning Plaintiff
Savage's employment with the Turnpike Commission, his
election to a seat on the Philadelphia City Council, his
resignation from employment with the Commission in November
20');">2006 in order to so serve, his unsuccessful bid to regain his
seat on the Philadelphia City Council, his return to
employment in a non-executive position as the Regional Office
Coordinator of the Commission's Eastern Region, his
receipt of the then current Code of Conduct which had become
effective in October of 20');">2007 which did not prohibit
non-executive level employees from running for elective
office in Pennsylvania state government, his decision to
again run for Philadelphia City Council in 20');">2011, and the
email he received from Doreen McCall, Chief Counsel for the
Commission, on January 3, 20');">2011, which stated that he would
not be prohibited from running for political office and
warned him that he was restricted from engaging in political
activity during business hours as well as from using
Commission resources and equipment for campaign purposes.
Likewise, Plaintiffs counter-statement confirms that Savage
requested a leave of absence so that he could devote more
time to his campaign, that this leave was approved by COO
Shuey and confirmed by Human Resources Director Schlegel, and
finally, that Plaintiffs 20');">2011 campaign was unsuccessful and
he returned to his position with the Commission in May 20');">2011.
(Id. at ¶¶ 1-7, 10-12).
13 of Plaintiffs counter-statement of facts asserts the
In or about March 20');">2013, Plaintiff began considering seeking
the Democratic Party nomination for the position of State
Senator for the Second Senatorial District, a seat that was
and is held by Senator Tartaglione, and was quoted by the
local press that he believed "there are several factors
that could help him defeat the incumbent."
[Northeast Times article dated March 27, 20');">2013, P-20');">20,
p. 2] In that same article, Senator Vincent Hughes, minority
party chair of the powerful Appropriations Committee of the
Pennsylvania State Senate voiced his support for the sitting
Senator "that begins with making sure that we are all
there for Sen. Tartaglione." [P-20');">20, p. 1].
at ¶ 13). The Commission responds to this statement with
an objection, arguing that "the cited newspaper article
is inadmissible hearsay." (Def.'s Resp., at ¶
Rule of Civil Procedure 56(c)(2) expressly provides that a
party may object that evidence offered to support or oppose
summary judgment cannot be presented in an admissible form.
That objection may be raised in a specific motion to strike,
but may also be raised in a response or reply papers. 1
Moore's Federal Rules Pamphlet § 56.5 [a]
(Matthew Bender) (20');">2018).
Hearsay statements that would be inadmissible at trial may
not be considered for purposes of summary judgment. Cf.
Shelton v. Univ. of Med. & Dentistry of
N.J., 20');">20');">223 F.3d 220');">20, 223 at n. 2 (3d Cir. 20');">2000) ("In
this circuit, hearsay statements can be considered on a
motion for summary judgment if they are capable in admission
Smith v. City of Allentown, 589 F.3d. 684, 693 (3d
cites to James v. Tri-Way Metalworkers, Inc., 189
F.Supp.3d. 422, 429 (M.D. Pa. 20');">2016) in support of its
objection. Defendant's reliance on James at this
stage of the proceedings is unavailing. In James,
this Court stated:
A non-moving party need not "produce evidence in a form
that would be admissible at trial in order to avoid summary
judgment." Celotex, 477 U.S. at 324, 106 S.Ct.
2548. Rather, the evidence may be considered if it can be
reduced to admissible evidence at trial. Id. at 327,
106 S.Ct. 2548. Thus, hearsay statements must be capable of
admission at trial in order for a court to consider them on
summary judgment. Shelton v. Univ. of Med. &
Dentistry of N.J., 20');">20');">223 F.3d 220');">20, 223 n.2 (3d Cir. 20');">2000).
Hearsay will be inadmissible absent falling within a hearsay
exception established in Fed.R.Evid. 803 and 804, satisfying
the residual hearsay exception found in Rule 807, or being
considered non-hearsay under rule 801(d). In the case of
hearsay within hearsay, each part of the combined statements
must conform with an exception to the rule against hearsay in
order to avoid exclusion. Fed.R.Evid. 805. A proponent of the
evidence at issue has the burden of establishing that it is
admissible. Pittsburgh Press Club v. U.S., 579 F.2d
751, 758 (3d Cir. 1978).
Id. at 432-433.
the Court declines to rule on the admissibility of the
Northeast Times article as well as the statements
contained in it, at trial, both the Plaintiff and Senator
Vincent Hughes could provide testimony on the subject matter
of the article that may be admissible. Defendant's
objection, therefore, is overruled insofar as it has
application to this summary judgment analysis.
event, paragrap. 13 also contains the statement that
"[i]n or about March 20');">2013, Plaintiff began considering
seeking the Democratic Party nomination for the position of
State Senator for the Second Senatorial District, a seat that
was and is held by Senator Tartaglione" Defendant did
not admit or deny this statement and the Court thus deems it
Commission admits that "[i]n or about June 20');">2013,
Plaintiff announced his intention to seek that Senate seat
and began raising money for that campaign for the Democratic
Party nomination through publicized funding events."
(PCSF, at ¶ 14; Def.'s Resp., at ¶ 14).
undisputed that "[o]n July 15, 20');">2013, Plaintiff announced
his first fund-raising event to take place in North Wildwood
New Jersey six days later on July 21, 20');">2013."
[Id. at ¶ 17).
19, 20');">2013, Savage asserts that "at a fund-raising event
for City Councilman Bobby Henon, Plaintiff's immediate
supervisor, Robert G. Brady, shared with Plaintiff an e-mail
he had received from Chief Operating Officer Shuey expressing
Shuey's extreme displeasure with the July 17, 20');">2013
Philadelphia Daily News article ... and Plaintiff's
announced candidacy for the Democratic nomination for State
Senate." (PCSF, at ¶ 19). The Philadelphia
Daily News article entitled "Trouble for
Tartaglione" contains statements attributed to Savage
which are critical of Tartaglione and makes reference to his
planning of a political fund-raiser and intentions to
challenge Tartaglione for the State Senate seat.
(See Doc. 61-18, Ex. 21). In response, the
Commission objects on the basis that the asserted email from
Shuey "does not exist." (Def.'s Resp., at
¶ 19). For the reasons previously set forth,
supra, at pages 19-20');">20, this objection is overruled
solely for purposes of this summary judgment analysis. On the
state of the record evidence, the Court cannot conclusively
determine that Plaintiff's description of the contents of
this email is barred by the best evidence rule or whether it
is otherwise inadmissible as double hearsay. Federal Rule of
Evidence 1004 permits the use of secondary evidence where the
original has been lost or destroyed, unless the ...