Filing 9


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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL ASSISE, Plaintiff v. PALMER TOWNSHIP, et al., Defendants : : : : : : : CIVIL ACTION NO. 08-2498 MEMORANDUM STENGEL, J. January 15, 2009 A part-time police officer who acknowledged, in writing, that "no hours will or c a n be guaranteed" contends his civil rights were violated by his termination following h is arrest.1 Palmer Township and the Palmer Township Police Department filed a 1 2 (b )(6 ) motion to dismiss, which I will grant in part and deny in part for the reasons d is c u s s e d below. I . Background M ic h a e l Assise became a part-time police officer with the Township around May, 2 0 0 3 . (Defs.' Mot. to Dismiss Ex. E.) A signed, dated document memorializing Mr. A ss is e 's understanding that his position was only for part-time employment states, "No h o u rs will or can be guaranteed. Hours worked will be scheduled in accordance with the p o lic e contract/manual." (Id.) In February 2005, Mr. Assise was arrested for conduct occurring outside the 1 Mr. Assise was arrested for Official Oppression, Conspiracy and Receiving Stolen Property, and Criminal A tte m p t. He was acquitted of all charges. to w n s h ip , and he was suspended. (Compl. 910). He was subsequently acquitted. (Id. 11). When Mr. Assise sought to recommence his employment with the Department in J u ly 2006, he was informed that he would not be reinstated. (Id. 14). He alleges that he w a s not informed of the reasons for his termination and that he had no opportunity to be h ea rd. (Id. 1926). In his complaint, Mr. Assise claims a property interest in continued employment th ro u g h the Palmer Township Employee Manual (Employee Manual (Defs.' Mot. to D is m is s Ex. B)), the collective bargaining agreement between the Township and the P a lm e r Police Association (CBA (Defs.' Mot. to Dismiss Ex. D)), and the Palmer T o w n sh ip Police Department Rules and Regulations Manual (Rules Manual (Defs.' Mot. to Dismiss Ex. F)). I I . Standard for a Motion to Dismiss A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure f o r failure to state a claim upon which relief can be granted examines the legal sufficiency o f the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations m u s t be sufficient to make the claim for relief more than just speculative. Bell Atlantic C o rp . v. Twombly, 550 US 544, 127 S.Ct. 1955, 1965 (2007). In determining whether to g ra n t a motion to dismiss, a federal court must construe the complaint liberally, accept all f a ctu a l allegations in the complaint as true, and draw all reasonable inferences in favor of -2- th e plaintiff. Id. See also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984). T h e Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all o f the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules re q u ire a "short and plain statement" of the claim that will give the defendant fair notice o f the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must a lle g e facts suggestive of [the proscribed] conduct." Twombly, 127 S.Ct. at 1969. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. S o u th e a ste rn Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim m u st contain enough factual matters to suggest the required elements of the claim or to " ra is e a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 1 2 7 S.Ct. at 1965)). I I I . Discussion A . The Department as an improper party T h e defendants' motion correctly indicates that police departments, as merely a d m in is tra tiv e agencies, cannot be sued in conjunction with municipalities. See, e.g., R u d o lp h v. Clifton Heights Police Dept., 2008 WL 2669290, at *7 (E.D. Pa. July 7, -3- 2 0 0 8 ); Stroman v. Lower Merion Twp., 2007 WL 475817, at *2 (E.D. Pa. Feb. 7, 2007); P a h le v. Colebrookdale Twp., 227 F. Supp. 2d 361, 367 (E.D. Pa. 2002). They are not s e p a ra te entities. Id. Mr. Assise's response does not address this issue at all, and the c o m p l a in t advances no colorable opposing argument suggesting that the Department is a se p a ra te legal entity. Accordingly, I will dismiss the claims against the Department. B . Request for punitive damages T h e parties agree that claims for punitive damages against a local government a g e n cy are not allowed. Any requests for punitive damages will be dismissed. C . Section 1983 claim I will deny the motion as to this part. To prevail on a section 1983 claim, a p la in tif f generally must show: (1) that the defendant acted under color of state law, (2) th a t the defendant deprived the plaintiff of a right protected by federal law, and (3) d a m a g e s . Samerik v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998). The Township is a s ta te actor. The key issue is whether Mr. Assise is correct in asserting a property interest in continued employment as a part-time officer. T h e Township moves for dismissal on the argument that there was no contract, d o c u m e n t, or other understanding with Mr. Assise that created any expectation of c o n tin u e d employment rising to the level of a constitutionally protected property interest. (Defs.' Mot. to Dismiss at 910.) The Township contends that Mr. Assise was only an atw ill, part-time officer for the following reasons: -4- (1 ) He was not statutorily protected by Pennsylvania's Police Tenure A c t, 53 P.S. 812, because he was not a regular full time officer; (2) The CBA contains no language refuting the at-will status of parttim e officers such as Assise; (3 ) Assise's reliance on the Employee Manual is misplaced as it clearly s ta te s that all full-time Township employment is at-will, and that any f u ll-tim e employee can be terminated without cause and without prior n o tic e . If full-time employees are not provided such protections, neither w o u ld part-time employees; ( 4 ) The Rules Manual does not create any additional rights as Assise p u r p o r ts . (S e e id. at 58.) The Township contends that because no statute, contract, or manual a lters Mr. Assise's at-will status, he has no property interest in his employment. O n e of Mr. Assise's arguments is that the CBA between the Police Association a n d the Township created the necessary property interest. (See Defs.' Mot. to Dismiss E x . D.) As a member of the police association, Mr. Assise was "covered" by the CBA. (Id. 2.0 ("[T]he TOWNSHIP recognizes the [Palmer Township Police Association] as th e exclusive representative of all full-time and regular part-time police . . . .").) He a rg u e s that his employment was not at-will because under the CBA "the Township re ta in [ e d ] its sole and exclusive right to . . . discipline, suspend or discharge employees fo r just cause." (Id. 3.0 (emphasis added)). Accordingly, he was entitled to some ex p lana tio n of the grounds constituting the "just cause" for his termination. (See Pl.'s O p p 'n Mem. at 6). Contrary to the Township's assertions, the CBA did create a property interest in -5- c o n tin u e d employment. I find the Third Circuit Court of Appeals' decision in Dee v. B o rou g h of Dunmore, 549 F.2d 225 (3d Cir. 2008), on point. In Dee, the court c o n sid e re d whether a firefighter suspended without notice was "deprived of a c o n stitu tio n a lly protected property interest." Id. at 229. The court determined that, based o n the terms of a collective bargaining agreement between the borough and the f ire f ig h te rs ' union, Mr. Dee did have a property interest. Id. at 230. That agreement c o n tain e d a provision stating, "It is agreed that the Borough Council has the right to d is c ip lin e and/or discharge Employees for `just cause.'" Id. at 231. Not every contract w ith a state entity creates a constitutionally protected property interest, but those " e m p lo ym e n t contracts . . . contain[ing] a `just cause' provision [do] create a property in te re st in continued employment." Id. at 231 (quoting Wilson v. MVM, Inc., 475 F.3d 1 6 6 , 177 (3d Cir. 2007)). The Township does not deny the existence of the "just cause" p ro v is io n nor has it established that Mr. Assise was not covered by the CBA.2 In light of the parties' arguments and the applicable standard, I will dismiss the m o tio n as to this part. Mr. Assise's employment was covered by the CBA, which in c lu d e d a "just cause" removal provision. Dee makes it clear that a state employment c o n tr a c t limiting the right to discipline or remove for "just cause" creates a c o n stitu tio n a lly protected property interest. Mr. Assise has asserted (and the Township That Mr. Dee was a full-time employee while Mr. Assise was a part-time employee is a factual distinction o f no moment. The issue is whether removal was restricted by a "just cause" provision. Because part-time officers in Palmer Township are protected by the CBA, Mr. Assise may rely on its terms in asserting his property interest a rg u m e n t. 2 -6- h a s not denied) that he was discharged without notice or an opportunity to be heard. Because Mr. Assise has stated a claim upon which relief may be granted, the motion is d is m is s e d . D . Breach of contract claim I will grant the motion as to the breach of contract claim. Mr. Assise's claim is p rim a rily based on the Rules Manual. (See Compl. 47; Pl.'s Opp'n Mem. at 8 (stating th a t the bases for Assise's claim are his termination and the Department's failure to a d h e re to the Rules Manual's disciplinary schedule)). He believes the Rules Manual estab lish ed the criteria for termination, that he did not fit into the criteria for summary te rm in a tio n , and that he was never placed on notice or given an opportunity to be heard. (See Compl. 1725.) The Rules Manual, however, is not a contract. It is only a guide d esc rib ing the Department's regulations and creates no legal duties or obligations. Mr. A s s is e has not presented an argument that the Rules Manual serves as any form of c o n tra c t between him and the Township. D is m is s a l is also appropriate to the extent Mr. Assise's argument is based on the C B A . First, although Mr. Assise was covered by the CBA, he was not a signatory. He c a n n o t validly claim that the Township violated some contractual duty it owed to him. S e c o n d , even if Mr. Assise could claim the CBA to be the allegedly breached contract, he h a s not exhausted his administrative remedies under that agreement. When contracting p a rtie s establish an exclusive procedure for dispute resolution, the expectation is that they -7- w ill use this procedure when disagreements arise. Accordingly, courts should be cautious a n d defer to the parties' agreement, as necessary. See Borough of Philipsburg v. Bloom, 5 5 4 A.2d 166, 16869 (Pa. Commw. Ct. 1989) (deciding that where contracting parties h a d established an arbitration procedure for grievances, a dispute arising under the a g re e m e n t was properly brought through the mutually agreed-upon process). This gives e f f e c t to the parties' intent on how to resolve issues arising under their agreement. Moreover, the restrained exercise of judicial power (even when jurisdiction exists) in th e se scenarios promotes the policy of encouraging cooperation and harmony in the e m p lo ye r-e m p l o ye e relationship. See, e.g., Twp. of Moon v. Police Officers of Moon, 4 9 8 A.2d 1305, 1311 (Pa. 1985) ("[G]rievance procedures . . . which [foster] harmony in the employment relationship should be favored."). T h e CBA's grievance procedure section provides that an officer appealing his ter m in a tio n can choose between using the CBA grievance procedure or some appropriate statu tory route. (Defs.' Mot. to Dismiss Ex. D 12.0.) There is no indication that Mr. A ss ise has pursued either one. Given the Pennsylvania courts' stated policy, I will d i sm is s the claim so as to give effect to the parties' intentions. I V . Conclusion F o r the foregoing reasons, I will grant in part and deny in part the defendants' m o t io n to dismiss. An appropriate order follows. -8- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL ASSISE, Plaintiff v. PALMER TOWNSHIP, et al., Defendants : : : : : : : CIVIL ACTION NO. 08-2498 ORDER STENGEL, J. AND NOW, this 15th day of January, 2009, upon consideration of the defendants' Motion to Dismiss (Document #4), it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN PART: 1) All counts against the defendant Palmer Township Police Department are DISMISSED. The Clerk shall terminate Palmer Township Police Department as a party in this matter; All requests for punitive damages are DISMISSED; Count II (Breach of Contract) of the Complaint is DISMISSED. 2) 3) BY THE COURT: /s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.

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