MILLER v. CITY OF BRADFORD et al

Filing 43

ORDER granting 40 Motion to Amend/Correct; denying 31 Motion to Amend/Correct. Signed by Judge Susan Paradise Baxter on 08/09/19. (esa)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHAYNE L. MILLER,
Plaintiff,
v.
CITY OF BRADFORD, et al.,
Defendants.

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Civil Action No. 17-268 Erie
District Judge Susan Paradise Baxter

MEMORANDUM ORDER
This civil action was filed by Plaintiff Shayne L. Miller (“Plaintiff”) against the City of
Bradford (at times, the “City”), its chief of police, Christopher Lucco (“Lucco”), and its mayor,
Thomas Riel (“Riel”), after Plaintiff was terminated from his position as a Bradford city police
officer for alleged shoplifting. The incident giving rise to the shoplifting charge involved
Plaintiff’s alleged failure, on two occasions, to scan a single meat item at a self-checkout station
in a local Walmart. ECF No. 8, ¶¶17-44. Plaintiff has consistently maintained that his failure to
pay for the items was unintentional and resulted from his inadvertent failure to scan them
correctly. Id. ¶¶29, 38.
On May 26, 2017, following a Loudermill1 hearing, Plaintiff was terminated by the City.
In September 2017, Plaintiff was tried on summary theft charges related to the alleged
shoplifting and was acquitted by the Magisterial District Judge. Plaintiff commenced this civil
action shortly thereafter.
In his amended complaint, which is the operative pleading, Plaintiff asserts four claims
against the Defendants. Counts I and II assert violations of Plaintiff’s federal procedural due

1

See Cleveland Board of Educ. v. Loudermill, 470 U.S. 532 (1985) (establishing the right to a pre-termination
hearing for public employees who hold a constitutionally protected property interest in their continued employment).
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process rights in connection with the loss of his employment and reputational damage. Count III
asserts state law theories of false light and invasion of privacy. Count IV asserts a claim against
Lucco and Riehl for alleged conspiracy.
Presently pending before the Court is Plaintiff’s motion to file a Second Amended
Complaint, which would add an additional count alleging a violation of the Pennsylvania
Constitution’s Due Process Clause. ECF Nos. 31 and 31-1. Plaintiff’s theory is that the
Defendants violated his state due process rights by allowing Lucco to act both as the investigator
and the adjudicator relative to his adverse employment decision.2 See Lyness v. Commonwealth,
605 A.2d 1204, 1204, 1207 (Pa. 1992) (holding that a physician’s due process rights were
violated when state board of medicine both determined that a professional licensing prosecution
should be initiated and then acted as the ultimate fact-finder in determining that a violation had
occurred); Dussia v. Barger, 351 A.2d 667, 674-75 (Pa. 1975) (superseded by statute) (holding
that an Administrative Code provision, as implemented by a state police field regulation, created
an impermissible commingling of functions on the part of the state police commissioner in
violation of due process principles where, under the regulatory scheme, the commissioner was
responsible both for determining whether to convene a court-martial board and also for
determining the accused employee’s guilt or innocence along with any appropriate sanctions).
The amendment of pleadings is governed by Federal Rule of Civil Procedure 15, which
generally conditions amendment on the court’s leave or the opposing party’s written consent.
2

Plaintiff has also filed a second motion to amend his pleading in which he seeks to reference a
recent arbitration ruling concerning his termination. ECF No. 40. According to Plaintiff, he has
obtained reinstatement to his previous position, and this affects both the merits of his claims and
the scope of relief he is seeking in this litigation. Id. Although Defendants take issue with
Plaintiff’s characterization of the arbitration in terms of its alleged conclusions and the impact it
will have on this action, they do not oppose the Plaintiff’s proposed amendments. See ECF No.
42. Accordingly, the Court will grant Plaintiff’s second motion to amend his pleading relative to
the arbitration proceedings.
2

Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017); see Fed. R. Civ. P. 15(a)(2). Under Rule 15,
courts are directed to “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.
15(a)(2). This liberal standard helps to effectuate the “general policy embodied in the Federal
Rules favoring resolution of cases on their merits.” Mullin, 875 F.3d at 149 (citation omitted).
Denial of leave to amend can be based on factors such as undue delay, bad faith or dilatory
motive on the part of the movant; repeated failure to cure deficiencies by amendments previously
allowed; prejudice to the opposing party; and futility. Mullin, 875 F.3d at 149 (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)).
In this case, Defendants oppose Plaintiff’s proposed amendment on the ground that, as a
matter of law, no due process violation occurred and, therefore, the proposed amendment would
be futile.3 Defendants contend that Plaintiff’s theory of liability is flawed because it “fails to
distinguish initial employment decisions, which are routinely investigated and made by . . .
municipal department heads, from the actual ‘adjudication’ of the correctness of such decisions
by a separate body.” ECF No. 37 at 2-3. According to Defendants, Plaintiff had the right to
appeal the adverse employment decision to the civil service board. See 11 Pa. C.S.A.
§14408(a)(2). Citing Katruska v. Bethlehem Ctr. Sch. Dist., 767 A.2d 1051 (Pa. 2001),
Defendants posit that where, as here, the aggrieved public employee has a statutory or
contractual right to de novo review of a department head’s decision by a city council or a civil
service review board, there is no violation of the employee’s due process rights.

Courts analyze futility under the “same standard of legal sufficiency as applies under Rule
12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Thus,
where the movant’s claims “would not survive a rule 12(b)(6) motion even if pled with more
particularity,” dismissal is proper. Id. at 1435.
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Katruska dealt with a school district’s decision, upon recommendation of the
superintendent, to demote a high school principal to a teaching position. As permitted by
statutory law, the plaintiff employee appealed his demotion to the Secretary of Education, who
affirmed the school board’s decision. Plaintiff then took a further appeal to the Commonwealth
Court, arguing that a particular school board member should not have participated in the
demotion hearing because of the fact that his wife was an employee at the high school and had
testified as a witness during the hearing. The Commonwealth Court agreed that the board
member’s participation created an appearance of bias in the underlying proceedings that
amounted to a violation of due process, notwithstanding the Secretary’s subsequent de novo
review of the decision. On further appeal, the Pennsylvania Supreme Court reversed the
Commonwealth Court’s ruling and held that the requirements of due process had been satisfied
by virtue of the de novo review procedures set forth in the Public School Code. In arriving at its
decision, the Supreme Court recognized that the concept of procedural due process encompasses,
among other things, “the chance to defend oneself before a fair and impartial tribunal having
jurisdiction of the case.” 767 A.2d at 1056 (quoting Lyness, 605A.2d at 1207). The Court
further acknowledged that “an inherent potential for bias on the part of school boards exists
because of the dual functions they serve in acting as both prosecutor and as judge in proceedings
involving professional employees.” Id. Nevertheless, the Court found that
the Secretary of Education’s de novo review of the decision of a school board
ensures that the requirements of due process are satisfied. The determination to be
reviewed on appeal to the Commonwealth Court is that of the impartial factfinder,
the Secretary of Education, rather than that of the school board. The professional
employee is provided with notice, opportunity to be heard, and the chance to defend
himself or herself before a fair and impartial tribunal through the procedure
implemented under the Public School Code. This procedure is distinguishable from
that analyzed in Lyness, in which the scope of appellate review from a decision of
the State Board of Medicine was limited. See, Lincoln Philadelphia Realty
Associates I v. The Board of Revision of Taxes of the City and County of
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Philadelphia, 563 Pa. 189, 758 A.2d 1178 (2000)(“ . . . this court has recognized
that de novo review serves an ameliorative function where the initial decision
maker is not an independent body.”); Covert v. Bensalem Township School District,
104 Pa. Cmwlth. 441, 552 A.2d 129 (1978).[ ]
Id. at 1056-57 (footnote omitted).
Defendants in this case extrapolate two propositions from Katruska, to wit: “a court’s
evaluation of a due process issue requires that it review the entire process that is available to the
plaintiff”; and ‘if that process provides the plaintiff with a right to de novo review of a decision
by a disinterested decision-maker, then that process satisfies the requirements of the
Pennsylvania Constitution, even if the initial decision was rendered by an individual or entity
that was also involved in the investigation or prosecution of the matter.” ECF No. 37 at 5-6. The
Court agrees that this is a reasonable interpretation of Katruska.
That said, the Court makes the following observations regarding Plaintiff’s termination
proceedings. First, the Bradford City Policy Department, by local ordinance, falls under the
direction of Defendant Lucco, as Chief of Police. See Code of the City of Bradford, §3-4(B).4
Second, subject to the provisions of the Third Class City Code pertaining to civil service,5 Lucco
(as “director” of the police department) was empowered, “with the approval of the City Council
or its authorized representative,” to “remove subordinate officers” like Plaintiff. Id. §3-5(C).
Third, under the provisions of the civil service statute, Plaintiff – as an “employee aggrieved by .
. . discharge” -- had the right to request a hearing before the civil service board and have
4

The Code of the City of Bradford is available at https://ecode360.com/BR1254. The Court
takes judicial notice of these provisions, as they constitute matters of public record. See Kovarik
v. S. Annville Twp., No. 1:17-CV-00097, 2018 WL 1428293, at *13 n. 21 (M.D. Pa. Mar. 22,
2018) (taking judicial notice of municipal ordinances when considering dismissal of an action for
failure to state a claim).
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These provisions were formerly set forth in Article XLIV of the Third Class City Code,
codified at 53 P.S. §39401 et seq.; they are now set forth in Chapter 144 of the Third Class City
Code, codified at 11 Pa. Cons. Stat. Ann. §14401, et seq.
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representation of counsel at said hearing. See 11 Pa. C.S.A. §14408(a)(2). Alternatively,
Plaintiff, being a member of a bargaining unit, had the option of challenging his termination “by
a proceeding in grievance arbitration.” Id. §14408(b). Thus, Plaintiff could choose to appeal his
discharge to the civil service board, or grieve his discharge in arbitration, but he could not to
both. Id. According to Plaintiff’s own averments, he chose arbitration and successfully grieved
his termination decision with the result that the arbitrator awarded reinstatement without
backpay. See ECF No. 40-1, ¶¶94-95. Plaintiff implicitly concedes in his proposed amended
pleading that the arbitrator acted as a neutral decision-maker. Id. ¶¶93-95.
Applying the principles of Katruska to the case at bar, the Court concludes that the
procedures available to Plaintiff provided due process of law. Like the aggrieved employee in
Katruska, Plaintiff obtained a review of his adverse employment decision by a fair and impartial
arbiter having jurisdiction over the matter. And even if Plaintiff had not successfully arbitrated
his claim, the availability of de novo review of his termination by the civil service board ensured
that the requirements of due process were met.
Plaintiff, however, disputes the relevance of Katruska on two grounds. First, he contends
that Katruska’s holding applies only to cases wherein the employee actually received the benefit
of de novo review by exercising his right to obtain it. According to Plaintiff, the mere existence
of a right to de novo review does not, by itself, cure a procedural due process violation.
This argument is unpersuasive. For starters, Plaintiff’s interpretation runs counter to the
portions of Katruska cited by him, which strongly suggest that the mere potential for
independent review can cure an otherwise deficient process. See 767 A.2d at 1055 (“The
provision for a hearing de novo before the Common Pleas Court provided an aggrieved
professional employee with an opportunity to have the facts of his case heard again in an

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independent forum.”) (quoting Belasco v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh, 510 A.2d
337, 340 (Pa. 1986)) (emphasis supplied); see also id. (“By providing . . . for a de novo hearing
by request in the court of common pleas as part of the appeal from the decision of the
Superintendent, the legislature has given the employee the opportunity for a hearing in a forum
free of any bias. Thus, if the employee-appellant desires, he can have his case retried in a forum
in which the School Board plays only the role of prosecutor and not that of judge also.”) (quoting
Appeal of Spano, 267 A.2d 848 (Pa. 1970) (emphasis supplied).
Moreover, if Plaintiff’s position is taken to its logical conclusion, it would allow an
aggrieved employee to be the architect of his own constitutional injury by intentionally
eschewing a constitutionally adequate avenue for potential redress. The United States Court of
Appeals for the Third Circuit, applying analogous due process principles under the Fourteenth
Amendment, has long recognized that:
In order to state a claim for failure to provide due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate. “[A] state cannot be held to have
violated due process requirements when it has made procedural protection available
and the plaintiff has simply refused to avail himself of them.” . . . A due process
violation “is not complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process.” . . . If there is a process on the
books that appears to provide due process, the plaintiff cannot skip that process and
use the federal courts as a means to get back what he wants. . . . .
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (citations omitted) (alteration in the original).6
Pennsylvania courts have recognized that “[t]he due process requirements of the Pennsylvania
Constitution are indistinguishable from the Fourteenth Amendment and, therefore, the same
analysis applies to both provisions.” Turk v. Com., Dep't of Transp., 983 A.2d 805, 818 (Pa.
Cmwlth. Ct. 2009) (citing Pa. Game Comm’n v. Marich, 666 A.2d 253 (Pa. 1995)); see also
Anderson v. City of Phila., 845 F. 2d 1216, 1219 n.2 (3d Cir. 1988) (noting that due process
claims under the state constitution “may be considered equivalent to the federal constitutional
claims in this case, since the relevant section of the Pennsylvania Constitution, Art. I § 1, has
been interpreted by the Pennsylvania Supreme Court as providing the same guarantees as the
fourteenth amendment of the United States Constitution.”) (citing Best v. Zoning Bd. of
Adjustment of City of Pittsburgh, 141 A.2d 606, 609 (Pa. 1958)). Accordingly, in analyzing the
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Common sense dictates that, in similar fashion, an aggrieved employee should not be able to
willfully bypass procedures that would satisfy the due process mandates of the state constitution,
and then claim that his rights were violated.
Plaintiff’s second argument for distinguishing Katruska is that he, unlike the plaintiff in
Katruska, is not challenging the constitutionality of the review process itself but, rather, the
Defendant’s failure to properly implement that process. Specifically, Plaintiff contends that
Lucco violated Section 3-5(C) of the Code of the City of Bradford by failing to act “with the
approval of the City Council or its authorized representative.” Thus, Plaintiff appears to be
making an “as applied” due process challenge to his termination.
In this Court’s view, Plaintiff’s argument presents a distinction without a material
difference. In point of fact, the aggrieved employee in Katruska – like Plaintiff – also challenged
the manner in which the review process was applied: i.e., he argued that the proceedings were
biased because of the participation of a particular school board member. The Pennsylvania
Supreme Court framed the issue more broadly by recognizing “an inherent potential for bias on
the part of school boards . . . because of the dual functions they serve in acting as both prosecutor
and as judge in proceedings involving professional employees.” 767 A.2d at 1056. Regardless,
however, the Court determined that “the Secretary of Education’s de novo review of the decision
of a school board ensures that the requirements of due process are satisfied.” Id. Similarly, in
this case, the initial termination decision was arguably tainted by Lucco’s alleged failure to
involve City Council or its “authorized representative.” In both this case and Katruska, however,
independent de novo review by an unrelated third party was available – a fact that was central to
the Katruska Court’s holding that no due process violation had occurred.
proposed amendment, this Court is guided by cases that interpret and apply federal due process
jurisprudence.
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In sum, the Court finds that Plaintiff’s inclusion of an additional cause of action
predicated upon the alleged violation of his state due process rights would be futile. For the
reasons set forth herein, such a claim would not be capable of withstanding a Rule 12(b)(6)
challenge. Accordingly,
IT IS ORDERED, this 9th day of August, 2019, that Plaintiff’s Motion to Amend
Complaint [31] is DENIED. IT IS FURTHER ORDERED that Plaintiff’s [Second] Motion to
Amend Complaint [40] is GRANTED. Plaintiff is directed to file his amended pleading,
captioned as a “Second Amended Complaint,” on or before August 19, 2019. Defendants’
response to the Second Amended Complaint shall be filed on or before September 6, 2019.
IT IS FURTHER ORDERED that the Court shall hold a telephonic status conference on
September 24, 2019 at 1:30 pm before the undersigned.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States District Judge

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