Dombrosky v. Banach et al
MEMORANDUM re 142 MOTION for Reconsideration re 141 Order,,,, 139 Memorandum (Order to follow as separate docket entry), Memorandum (Order to follow as separate docket entry), Memorandum (Order to follow as separate docket entry) and Cla rification filed by Chad Stewart, Westfall Township, Lester Buchanan, Raymond Banach, James Muir, Robert Ewbank, Paul Fischer, 141 Order,,,, 144 MOTION for Reconsideration re 141 Order,,,, 139 Memorandum (Order to follow as se parate docket entry), Memorandum (Order to follow as separate docket entry), Memorandum (Order to follow as separate docket entry) Certificate of Non Concurrenc filed by Robert A. Dombrosky, 139 Memorandum (Order to follow as separate docket entry),, Signed by Honorable A. Richard Caputo on 8/10/12. (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT A. DOMBROSKY,
CIVIL ACTION NO. 3:09-2579
RAYMOND BANACH, ROBERT BROWN,
LESTER BUCHANAN, ROBERT
EWBANK, PAUL FISCHER, RICHARD
GASSMAN, JAMES MUIR, ROBERT
STEVENS, CHAD STEWART, EASTERN
PIKE REGIONAL POLICE COMMISSION,
and WESTFALL TOWNSHIP
Presently before the Court are two motions for reconsideration of the Memorandum
issued on May 24, 2012 (Doc. 139) and Revised Order issued on June 1, 2012. (Doc. 141.)
Plaintiff Robert Dombrosky seeks reconsideration of the Revised Order granting summary
judgment for the Eastern Pike Regional Police Commissioners and its Chief of Police,1 and
Mr. Dombrosky also seeks reconsideration of the denial of his summary judgment motion
on his due process claim. (Doc. 144.) The Westfall Defendants2 seek clarification and
reconsideration of the Court’s Revised Order. (Doc. 142.) For the reasons that follow,
Plaintiff’s motion will be denied and the Westfall Defendants’ motion for reconsideration will
be denied, but the Westfall Defendants’ motion for clarification will be granted as they may
The Eastern Pike Commissioners are Robert Brown, Lester Buchanan, Paul
Fischer, Richard Gassman, and Robert Stevens and its Chief of Police is Chad
Stewart. Along with the Eastern Pike Regional Police Commission (the
“Commission”), these Defendants will be referred to as the “Eastern Pike
The Westfall Defendants are Westfall Township and its supervisors Lester
Buchanan, Robert Ewbank, Paul Fischer, and James Muir.
proceed to trial on their cross-claims against the Eastern Pike Regional Police Commission.
As the facts are set forth in detail in my May 24, 2012 Memorandum, it is
unnecessary to repeat them here at length. It is enough to state that this action stems from
Plaintiff Robert Dombrosky’s former employment as a police officer with the Westfall
Township Police Department (“WTPD”). After being charged with a crime, Mr. Dombrosky
agreed to take an unpaid leave of absence pending the disposition of the charges. In the
meantime, Westfall Township entered into an agreement with Matamoras Borough to merge
their respective police departments into a new regionalized police department, to be known
as the Eastern Pike Police Department (“EPPD”). Mr. Dombrosky attempted to return to
work upon his acquittal, but he was advised that due to the merger, his position no longer
existed. This action was then commenced by Mr. Dombrosky against Westfall Township,
the Westfall Township Supervisors, the Eastern Pike Regional Police Commission, the
Eastern Pike Regional Police Commissioners, and the chief of police of the EPPD.
A motion for reconsideration is governed by Rule 59(e) of the Federal Rules of Civil
Procedure, which allows a party to move to alter or amend a judgment within twenty-eight
(28) days of entry. Fed. R. Civ. P. 59(e). Alternatively, when the reconsideration motion
is not to amend or alter the judgment pursuant to Rule 59, Middle District of Pennsylvania
Local Rule 7.10 allows a party to seek reconsideration within fourteen(14) days of entry of
an order. “The purpose of a motion for reconsideration is to correct manifest errors of law
or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906,
909 (3d Cir.1985) (citation omitted). A judgment may be altered or amended if the party
seeking reconsideration establishes at least one of the following grounds: “(1) an
intervening change in 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.” Max's Seafood Café, by Lou Ann, Inc., v.
Quinteros, 176 F.3d 669, 677 (3d Cir.1999). “A motion for reconsideration is not to be used
as a means to reargue matters already argued and disposed of or as an attempt to relitigate
a point of disagreement between the Court and the litigant.” Ogden v. Keystone Residence,
226 F. Supp. 2d 588, 606 (M.D. Pa. 2002). “[R]econsideration motions may not be used to
raise new arguments or present evidence that could have been raised prior to the entry of
judgment.” Hill v. Tammac Corp., No. 05 1148, 2006 WL 529044, at *2 (M.D. Pa. Mar. 3,
2006). Lastly, the reconsideration of a judgment is an extraordinary remedy, and such
motions should be granted sparingly. D'Angio v. Borough of Nescopeck, 56 F. Supp. 2d
502, 504 (M.D. Pa.1999).
Mr. Dombrosky’s Motion for Reconsideration
Mr. Dombrosky requests reconsideration of ¶ 3 of the Revised Order insofar as it
grants summary judgment to the Eastern Pike Regional Police Commissioners and Chief
of Police Stewart. Additionally, Mr. Dombrosky seeks reconsideration of ¶ 4(b) of the
Revised Order which denied his motion for summary judgment on his due process claims.
Mr. Dombrosky’s motion for reconsideration will be denied because there is no clear error
of fact or law that needs to be corrected to prevent a manifest injustice from occurring.
First, as to the grant of summary judgment to the Eastern Pike Regional Police
Commissioners and Chief of Police Stewart, I noted previously that the Eastern Pike
Defendants were not a party to the agreement between Westfall Township and Mr.
Dombrosky that he would be reinstated upon an acquittal of his criminal charges. (Doc. 139,
16.) Mr. Dombrosky argues, however, that although this finding supports the dismissal of
the Commission, it is immaterial to the liability of the Eastern Pike Commissioner
Defendants and Chief of Police Stewart whom Plaintiff claims all individually participated
in depriving him of his constitutional rights. I disagree. In particular, as these individual
Defendants were not parties to the agreement with Mr. Dombrosky, they were not
responsible for not intervening or acquiescing in an employment decision with Plaintiff as
he was never employed by the Commission. And, it is for that reason that Defendants
Brown, Buchanan, and Fisher were all dismissed in their capacity as Eastern Pike Regional
Police Commissioners but not as Westfall Township Supervisors. (Doc. 141, ¶ 3.) And,
because Defendants Gassman and Stevens were not Westfall Township Supervisors at the
time Mr. Dombrosky reached his agreement with Westfall Township, they were not parties
to that agreement and they were properly dismissed from this action. Lastly, Police Chief
Stewart was properly dismissed from this action because his conduct in making a list of
active police officers that did not include Mr. Dombrosky (because he was still on unpaid
leave at the time) did not violate Plaintiff’s rights. Accordingly, Mr. Dombrosky’s motion for
reconsideration of ¶ 3 of the Revised Order will be denied.
Second, Mr. Dombrosky seeks reconsideration of the denial of summary judgment
on his due process claim. As to the Eastern Pike Defendants, I previously determined that
Plaintiff’s theory of successor liability does not apply and therefore his motion for
reconsideration as to the due process claim against the Eastern Pike Defendants will be
denied. Additionally, as to the Westfall Defendants, Mr. Dombrosky argues that “the court
was diverted by the ‘reorganization exception,’ whereby a public employee’s substitute right
to his employment is circumscribed where a government abolishes a department or position
or reduces its workforce for economic reasons.” However, as Plaintiff has not presented
any previously unavailable evidence or demonstrated a clear error of fact or law and he
merely raises previously rejected arguments, Mr. Dombrosky’s motion for reconsideration
as to the denial of summary judgment on his due process claim will be denied.
In sum, because Mr. Dombrosky has not identified any manifest errors or law or fact
in his motion, his request for reconsideration will be denied.
The Westfall Defendants’ Motion for Clarification and Reconsideration
The Westfall Defendants seek clarification or reconsideration on three issues. First,
the Westfall Defendants assert that an injustice would be created if their cross-claims
against the Eastern Pike Regional Police Commission were dismissed because they have
a separate and distinct basis for indemnification and contribution against the Commission
for Plaintiff’s claims. Second, the Westfall Defendants assert that I improperly interpreted
the language of the Regionalization Agreement. Lastly, they argue that finding the Westfall
Defendants liable under Count II of the Amended Complaint was an error because the
reorganization exception applies to Police Tenure Act claims.
The first issue raised by the Westfall Defendants is “for clarification on whether their
cross-claims against the Commission may proceed to trial because, even if Plaintiff does
not have a claim for liability against the Commission, the Township and Township
Defendants have grounds for indemnification and contribution on several points.” (Doc. 143,
5.) The Westfall Defendants seek clarification because “the Township and Township
Defendants basis for liability against the Commission was not considered because,
presumably, that issue was not before the Court when deciding the cross summary
judgment motion.” (Id. at 4-5.) Yet, the Revised Order declares that “[j]udgment shall be
entered in favor of the Eastern Pike Regional Police Commission . . . on all counts.” (Doc.
141, ¶ 3.) As such, the Westfall Defendants request that their cross-claims against the
Commission be permitted to proceed to trial.
In opposition, the Commission raises a number of arguments disputing the Westfall
Defendants’ claim that it is contractually obligated to indemnify the Westfall Defendants.
Noticeably absent, however, from the Commission’s opposition is any response to the
Westfall Defendants’ key point- that the Commission did not move for summary judgment
against the Westfall Defendants’ on their cross-claims for contribution and indemnification.
Indeed, a review of the Eastern Pike Defendants’ Motion for Summary Judgment confirms
that the Commission did not move for summary judgment on the Westfall Defendants’
cross-claims: “[n]o genuine dispute as to any material fact exists with respect to the claims
of Plaintiff Robert Dombrosky (“Plaintiff”) as against the Eastern Pike Defendants, therefore
the Eastern Pike Defendants are entitled to judgment thereon as a matter of law.” (Doc.
108, 1-2) (emphasis added). Thus, the issue of the Commission’s liability on the Westfall
Defendants’ cross-claims was not before the Court when I decided the parties’ summary
judgment motions. As such, I will clarify the Revised Order and the Westfall Defendants’
cross-claims against the Commission may proceed to trial.
The second issue raised by the Westfall Defendants is that the Regionalization
Agreement is ambiguous and should be interpreted by the finder of fact. As set forth in the
May 24, 2012 Memorandum, “[w]hen the words of a contract are clear and unambiguous,
the intent of the parties must be ascertained from the language employed in the contract,
which shall be given its commonly accepted and plain meaning.” TruServ Corp. v. Morgan’s
Tool & Supply Co., 39 A.3d 253, 260 (Pa. 2012). A court may find a contract ambiguous
“if, and only if, it is reasonably or fairly susceptible of different constructions and is capable
of being understood in more senses than one and is obscure in meaning through
indefiniteness of expression or has a double meaning.” Hutchison v. Sunbeam Coal Corp.,
519 A.2d 385, 390 (Pa. 1986) (quoting Duquesne Light Co. v. Westinghouse Elec. Corp.,
66 F.3d 604, 614 (3d Cir. 1995)). But, “a court must not rely upon a strained contrivancy”
to establish ambiguity, as “scarcely an agreement could be conceived that might not be
unreasonably contrived into the appearance of ambiguity.” Id. (quoting Steuart v.
McChesney, 444 A.2d 659, 663 (Pa. 1982)). And, “a contract is not rendered ambiguous
by the mere fact that the parties do not agree on the proper construction.” Id. (quoting
Duquesne, 66 F.3d at 614).
Here, as I noted in the prior Memorandum, “the unambiguous language of the
agreement demonstrates that Mr. Dombrosky was still employed by Westfall Township until
February 21, 2008, when he received a termination letter from the Supervisors’ secretary.
Therefore, the Westfall Defendants’ motion for summary judgment on the basis of a lack
of liability must be denied.” (Doc. 139, 14.) Thus, as the Westfall Defendants have failed
to demonstrate that reconsideration is mandated in this case to correct a manifest error of
law or fact, the Westfall Defendants’ motion for reconsideration as to this interpretation of
the Regionalization Agreement will be denied.
Lastly, the Westfall Defendants argue that I committed a clear error of law in granting
Plaintiff summary judgment on his Police Tenure Act claim. Specifically, the Westfall
Defendants assert that whether the reorganization exception applies to Police Tenure Act
claims is a material question of fact that should go to a jury. In opposition, Mr. Dombrosky
asserts that the Westfall Defendants are rearguing a point already rejected by the Court.
In addition, Mr. Dombrosky contends that the “reorganization exception” does not apply to
a case, such as this, which involves the “regionalization” or “banding together”
of existing and continuing municipalities.
I agree with Mr. Dombrosky that this issue has already been addressed in the May
24, 2012 Memorandum. Specifically, I noted that the Police Tenure Act “provides that fulltime polices officers may be removed for specific reasons. A regionalization agreement
between police officers is not among the specified permissible reasons.” (Doc. 139, 19.)
And, as the Westfall Defendants raise the same arguments now that they advanced in
opposition to Plaintiff’s summary judgment motion (Doc. 120, 4-7), their request will denied
because “[a] motion for reconsideration is not to be used as a means to reargue matters
already argued and disposed of or as an attempt to relitigate a point of disagreement
between the Court and the litigant.” Ogden v. Keystone Residence, 226 F. Supp. 2d 588,
606 (M.D. Pa. 2002). Thus, I will not reconsider my prior decision finding the Westfall
Defendants liable under the Police Tenure Act.
For the above stated reasons, Mr. Dombrosky’s motion for reconsideration will be
denied. Moreover, the Westfall Defendants’ request for reconsideration of the Revised
Order denying their summary judgment motion and granting Plaintiff summary judgment
against them on Counts Two and Three of the Amended Complaint is denied. However,
the Westfall Defendants’ request for clarification is granted and they may proceed at trial
on their cross-claims against the Commission.
An appropriate order follows.
August 10, 2012
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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