DEFORTE v. THE BOROUGH OF WORTHINGTON et al

Filing 104

OPINION. Signed by Judge Mark R. Hornak on 3/24/17. (jad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILLIAM DeFORTE and
EV AN TOWNSEND,
Plaintiffs,
v.
THE BOROUGH OF WORTHINGTON,
and KEVIN FEENEY,
Defendants.

EV AN TOWNSEND,
Plaintiff,

v.
THE BOROUGH OF WORTHINGTON,
and KEVIN FEENEY,
Defendants.

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Civil Action No. 2:13-cv-356-MRH

Civil Action No. 2:13-cv-357-MRH

OPINION
Mark R. Hornak, United States District Judge

In 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"), 1 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
1

Originally, Plaintiffs also named Borough Councilman Barry Rosen and Officer Gerald Rodgers as Defendants in
Case Nos. 13-356 and 13-357, but Rosen and Rodgers have since been dismissed from both civil actions.

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.
This 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.
I.

BACKGROUND
DeForte was employed by the Borough as a police officer between July 2009 and

November 5, 2012. (See Defs.' Ex. A, Deel. of Debra L. Smith at
B, Affid. of William DeForte at
Minutes, ECF No. 97-3.) 2

~1,

~1,

ECF No. 97-1; Defs.' Ex.

ECF No. 92-2; Defs.' Ex. C, Worthington Borough Council

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. (Id.)3
Townsend 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 Deel.

~5;

Defs.' Ex. D, Affidavit of Evan Townsend, at 1, ECF No. 97-4.)

2

The parties have filed identical summary judgment papers at Case Nos. 2: 13-cv-356 and 2: l 3-cv-357. For the sake
of simplicity, the Court will reference only those filings docketed at Case No. 2: 13-cv-356.
3

In responding to the pending motions, DeForte submitted a supplemental affidavit (ECF No. I 01-2), wherein he
represents that he has been "duly sworn according to law" and purports to expounds on certain aspects of his
employment. Although styled as a "supplemental affidavit," the document does not bear the seal of a notary public
or other authorized official. Accordingly, it is not a proper affidavit for purposes of Rule 56. See, e.g., Adickes v. S.
H. Kress & Co., 398 U.S. 144, 158 n.17 (1970); Proctor v. Sagamore Big Game Club, 265 F.2d 196, 198-99 (3d
Cir.)("[S]elf-serving unverified statements of fact asserted by plaintiffs are not the type of proof which F.R.Civ.P.
Rule 56(c), 28 U.S.C. requires for the resolution of a motion for summary judgment."); Xv. Brierley, 457 F. Supp.
350, 352 (E.D. Pa. l 978)(document containing statements that were never were never sworn to before a public
notary or other authorized official could not be considered for summary judgment purposes). Similarly, the
document cannot be construed as a valid declaration, inasmuch as it lacks any acknowledgment that the statements
therein are being made under penalty of perjury. See 28 U.S.C. § 1746 (allowing unsworn declaration to be offered
in lieu of affidavit when sworn "under penalty of perjury"). DeForte's "supplemental affidavit" will therefore be
disregarded for purposes of the Court's Rule 56 analysis.

2

At the time of Plaintiffs' terminations, the Borough's Police Department was comprised
of four part-time officers, including DeForte and Townsend. (Smith Deel.

~~

2, 6, 9; see also

Pls.' 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 Deel.

~~

received an hourly wage. (Id.

~~2,

4, 8.) Both DeForte and Townsend

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.)

While employed as police officers for the Borough of Worthington, both DeForte and
Townsend were simultaneously employed by other police departments. (DeForte Affid.
Townsend Affid.

~~5-6.)

~~5,

9;

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.)

Despite 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

3

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.)

Townsend 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.)

Following 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 dispute.
Defendants 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

4

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
disposition.
II.

LEGAL STANDARD
Summary 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 Out.fitters 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).
III.

ANALYSIS

A. Plaintiffs' Federal Claims
Plaintiffs' due process claims are asserted under 42 U.S.C. § 1983, which affords a private
right of action against:

5

[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.
To 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.
Whether 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
6

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.
1. The Pennsylvania Borough Code
The 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. 4 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. §4617l(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. 5 The
term "police force" was defined, in relevant part, as:

4

Sections 46171 through 46195 were repealed effective June 17, 2014, by P.L. 432, No. 37, §3(2) (April 18, 2014).

5

These included the following circumstances:
(I) Physical or mental disability affecting his ability to continue in service, in which cases the person
shall receive an honorable discharge from service.
(2) Neglect or violation of any official duty.
(3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.

7

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 borough.
Police force as used in this subdivision shall not include: ...
(4) Any extra police serving from time to time or on an hourly or daily basis ....
53 PA. STAT. §46195. 6
Defendants contend that Plaintiffs were not "members" of a "police force" and, therefore,
they lacked any legitimate expectation of continued employment inasmuch as they were not
subject to the civil service protections of the Borough Code. Based on the undisputed facts of
record, this Court agrees.
As Section 46195 makes clear, a "police force" subject to the civil service system
consists of members who "devote their normal working hours to police duty" and "are paid a
stated salary or compensation for such work." 53 Pa. Stat. §46195. It specifically excludes
"extra police serving from time to time or on an hourly or daily basis." Here, it is undisputed
that the Borough employed DeForte and Townsend on a part-time basis. The officers were paid
an hourly wage and received no additional benefits. DeForte and Townsend each held other
employment during the time that they served as Worthington Borough police officers. Although
they may have worked for the Borough on a regular basis, even earning overtime pay on
occasion, nonetheless their compensation would have varied depending on the number of hours
worked. Defendants' Exhibit C demonstrates, for example, that Townsend worked 33.5 hours
(4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an
officer.
(5) Intoxication while on duty.
(6) Engaging or participating in conducting of any political or election campaign otherwise than to
exercise his own right of suffrage.
53 PA. STAT. §46190.
6

The current version of this provision, in its amended form, is now codified at 8 PA. CONS. STAT. ANN. § 1170. For
present purposes, there are no material differences between the two versions of the statute. Accordingly, case law
interpreting 8 PA. CONS. STAT. ANN. § 1170 is relevant to the Court's analysis and is cited herein.

8

during the period October 16 to 31, 2012 and earned $297.17 in wages, while DeForte had no
compensable hours during that period.

(ECF No. 97-3 at p. 5.) Nor is there any claim or

evidence in the record to suggest that Plaintiffs were originally hired through civil service
procedures. Based on the record evidence before this Court, no reasonable jury could find that
the members of the Worthington Borough Police Department "devote[d] their normal working
hours to police duty" for the Borough and were "paid a stated salary or compensation for such
work .... " 53 PA. STAT. §46195. In fact, the record reveals that they served "from time to time"
and were paid on an "hourly or daily basis," placing them squarely within the exception to civil
service coverage contained in the Borough Code.

Accordingly, because Plaintiffs were not

members of a "police force" subject to the protections of the civil service system, the Borough
Code did not afford them a protected property interest in continued employment.
Other federal courts within this Commonwealth have similarly and recently concluded
that part-time police officers who were compensated on an hourly basis had no legitimate
expectation of continued employment under the provisions of the Borough Code. See, e.g.,

Clark v. Colwyn Borough, Civil Action No. 12-3668, 2015 WL 4722570, at *8 (E.D. Pa. Aug.
10, 2015) ("In interpreting [the currently operative version of 53 Pa. Stat. §46195] in the context
of due process claims, courts in this District have uniformly found that part time officers do not
have a continued expectation of employment under the statute.") (citing Stevens v. Telford

Borough, No. 11-7216 2014 WL 4056952 at *6 (E.D. Pa. Aug 14, 2014) (finding that an officer
who worked on an hourly basis was "specifically excluded by statute from the due process
protections afforded to full-time officers")); Mariano v. Borough of Dickson City, Civil Action
No. 3:13-0097, 2014 WL 5795679, at *5 (M.D. Pa. Nov. 6, 2014)("There is no dispute that
plaintiff was a part-time officer who was paid on an hourly basis, and so Pennsylvania law does

9

not afford him a property interest in his continued employment."); Hofnagle v. Pine Grove
Borough, No. 3:12-CV-2468, 2013 WL 2435363, at *5 (M.D. Pa. June 4, 2013) (dismissing
plaintiffs' Fourteenth Amendment claim on the basis that "only full-time police officers are
entitled to procedural due process under the law," and citing 53 Pa. Stat. §46195( 4)); Rosati v.
Borough of Hellertown, No. 91-6484 1992 WL 396769 at *2-3 (E.D. Pa. Dec. 24, 1992)
(finding that, because a part-time officer was paid on an hourly (rather than a salaried) basis, he
was considered "extra police" and had no property interest in his employment).
Plaintiffs nevertheless contend that, despite their status as "part-time" employees, they
were required and expected to be on call and available for duty as Worthington Borough police
officers at all times.

Plaintiffs cite Stevens, supra, for the proposition that, "[t]o determine

whether a police officer hired in a part-time capacity ... should be considered a full-time officer
for termination process purposes, Pennsylvania considers whether the plaintiff was 'available or
on call for duty at any and all times."' 2014 WL 4056952, at *4 (quoting Mullen v. Borough of
Parkesburg, 572 A.2d 859, 861 (Pa. Commw. Ct. 1990) (citing Petras v. Union Twp., 187 A.2d
171 (Pa. 1963)).
Notably, the two cases cited by the Stevens court - i.e., Mullen and Petras -- were
decided not under the relevant provisions of the Borough Code, but instead under the Police
Tenure Act, 53 Pa. Stat. Ann. §§811-816, a separate statute that applies to smaller municipalities,
including boroughs that have a police force of less than three members. See 53 PA. STAT. §811.
Where applicable, the Police Tenure Act provides that "[n]o person employed as a regular full
time police officer . . . shall be suspended, removed or reduced in rank except for [certain
enumerated] reasons ... ."Id. § 812. The courts in Mullen and Petras were thus called upon to
determine whether the plaintiffs in each of those cases was a "regular full time police officer," a

10

term not defined in that statute - a statute which, for the reasons set out in the next section of this
Opinion, is not applicable in this case.
Notably, the Petras Court concluded that the relevant test for determining "full time"
employment "is not the number of days, length of hours, or terms of employment but rather
whether or not the duties were such that [the plaintiff] was 'available for full employment,' that
is[,] on call at any and all times." 187 A.2d at 174. Applying this test, the court held that, "since
the plaintiff was required to be available for work during the whole term of his employment, he
was in fact a full time employee." 187 A.2d at 175.
The court in Mullen applied this same test, but reached a different result. In Mullen, the
plaintiff was working approximately 32 hours a week for the Borough of Parkesburg while also
working full-time hours as a police officer for another municipality. After being terminated, the
plaintiff sued the Borough for alleged violations of the Police Tenure Act. The Pennsylvania
Commonwealth Court concluded that the plaintiff could not be considered a regular, full-time
police office for Parkesburg Borough, because he was not available to serve as a Borough police
officer at any and all times and could only be available during the time that he was not on duty
for the other municipality. 572 A.2d at 861.
Critically, neither Petras nor Mullen involved pronouncements concerning the express
provisions of the Borough Code that are at issue here.

And, although the court in Stevens

discussed the Petras test in considering whether a police officer is entitled to protection under
the civil service provisions of the Borough Code, the courts in Clark, Mariano, and Rosati did
not. Further, and importantly, at the end of the day in Stevens, that court applied the express
provisions of the Borough Code, and not the Police Tenure Act, in concluding that under state
law, the police officer there, like the Plaintiffs here, was serving from "time to time" and on an

11

"hourly or daily basis." Also critically, the Stevens court held that there were no other statutory
provisions that would vest the officer with "any expectation of continued employment." Stevens,
2014 WL 4056952 at *6. Thus, from this Court's perspective, Stevens does not, in the end, run
counter to the prevailing body of decisional law that applies the Borough Code as the Court does
here.
Separately and distinctly, to the extent the principles enunciated in Petras have any
application here, this Court remains of the view that no genuine issue of material fact exists
concerning Plaintiffs' status as other than "regular, full-time employees."

As noted, it is

undisputed that both DeForte and Townsend worked part-time hours for Worthington Borough
and were compensated on an hourly basis. It is further undisputed that each Plaintiff, while
employed by the Borough, was also simultaneously employed as a police officer for at least two
other municipalities. Both Plaintiffs insist that their employment with Worthington Borough was
their top priority, that they were constantly "on call" for that Borough, and that there was never
an instance in which they failed to respond to the call of duty as Worthington Borough police
officers. Whether or not actual conflicts ever arose is not dispositive, however, as the test is one
of actual availability.

Plaintiffs' self-serving assertion that they were always on call and

available to serve the Borough is belied by the self-evident fact that police work, by its very
nature, involves matters of public safety that are often dangerous, rapidly evolving, and
inherently unpredictable.

As Defendants suggest, it is legally unreasonable to conclude that

either officer, if engaged in an emergency police situation in another municipality, would have
been free to simply leave the situation in order to handle a less emergent situation in
Worthington Borough. Accord Mullen, 572 A.2d at 861 (plaintiff was not a full-time police
officer for borough where he could only be available during the time that he was not on duty in

12

another municipality); Yatzor v. Washington Twp Comm 'rs, 290 A.2d 425 (Pa. Commw. Ct.
1972) (plaintiff was not a "regular full-time police officer" where his main source of income
made him unavailable for police work several days a week). In instances where the "other"
employment was outside of police work, the record has supported the conclusion that such was
not inconsistent with an expectation that the police obligations would sit in the driver's seat. See

Risk v. Burgettstown Borough, Pa., No. CIV.A. 05-1068, 2008 WL 4925641, at *4 (W.D. Pa.
Nov. 14, 2008) (finding, in the context of religious discrimination case, that part-time police
officer would have been protected by the seniority furlough provisions of either the Police
Tenure Act or the Borough Code, despite the fact that plaintiff held a second job as a school bus
driver; court noted that plaintiffs other job did not conflict with the needs of the Borough, and
no evidence was presented that the plaintiff was ever unavailable when needed by the Borough
or that he was employed merely as "extra police"), ajj'd, 364 F. App'x 725 (3d Cir. 201 O); Droz

v. Brownstown Borough, 43 Pa. D. & C. 2d 205 (C.C.P. Cambria Cty. 1967) (plaintiff who held
primary employment at a steel company and worked only three hours a week as a police officer
for a period of eight years was nevertheless a "regular full-time police officer" entitled to
protection under the Police Tenure Act; plaintiff was on call as a police officer at all times, 24
hours a day, and on several occasion he had responded to calls by the police chief for additional
help).
For each of the reasons noted, the Court concludes, as a matter oflaw, that Plaintiffs were
not members of a "police force" covered by the civil service provisions of the Borough Code.
Because they lacked these protections, Plaintiffs had no expectation of continued employment
under the Borough Code.

13

2. The Police Tenure Act
Plaintiffs alternatively contend that, if they are not entitled to the protections of the
Borough Code's civil service provisions, then the protections of Pennsylvania's Police Tenure
Act must apply. As previously noted, the Police Tenure Act is applicable "to each borough and
township of the first class having a police force of less than three members .... " 53 Pa. Stat.
§811. Under the terms of this Act,
No person employed as a regular full time police officer in any police department
of any township of the second class, or any borough or township of the first class
within the scope of this act, with the exception of policemen appointed for a
probationary period of one year or less, shall be suspended, removed or reduced
in rank except for the following reasons: (1) physical or mental disability
affecting his ability to continue in service, in which case[ 1 the person shall receive
an honorable discharge from service; (2) neglect or violation of any official duty;
(3) violating of any law which provides that such violation constitutes a
misdemeanor or felony; (4) inefficiency, neglect, intemperance, disobedience of
orders, or conduct unbecoming an officer; (5) intoxication while on duty. A
person so employed shall not be removed for religious, racial or political reasons.
A written statement of any charges made against any person so employed shall be
furnished to such person within five days after the same are filed.
53 Pa. Stat. Ann.§ 812 (internal footnote omitted).
Plaintiffs acknowledge that, at all times relevant to this lawsuit, the Worthington Borough
Police Department had four part-time officers. To the extent these part-time employees did not
constitute a "police force" for purposes of the Borough Code, Plaintiffs reason that the Borough
must therefore have had no police force members at all, making the Borough subject to the
protections of the Police Tenure Act.
This argument lacks merit. By its terms, the Police Tenure Act applies only to police
forces consisting of less than three members. The Pennsylvania Commonwealth Court has held
that, for purposes of determining the size of the subject police force - and therefore, the
applicability (or non-applicability) of the Police Tenure Act, it matters not whether the force
consists of full-time or part-time officers. See Mullen, 572 A.2d at 861 ("[O]ther than [the
14

plaintiff], the Borough only employed a Chief of Police and a Sergeant. It directly follows that
Mullen, whether full-time or part-time, constitutes the third member of the Borough's police
force."); see also Albrechta v. Borough of White Haven, 810 F. Supp. 139, 143 (M.D. Pa. 1992)
(applying Mullen and finding that "for the Police Tenure Act to be applicable, White Haven's
police force must have consisted of less than three members, whether full-time or part-time").
Here, Plaintiffs concede that Worthington Borough's police force consisted of four part-time
police officers, including themselves, at the time of their terminations. Accordingly, the Police
Tenure Act has no applicability to this case, and even if it did, Plaintiffs were not "regular fulltime" officers entitled to the protections of the Tenure Act for the reasons previously discussed.
3. The Worthington Borough Police Department Policy and Procedure Manual
In their respective pleadings, DeForte and Townsend each asserted a constitutionally
protected property interest in their jobs arising from, among other things, the "Worthington
Police Department Policy and Procedure Manual." (DeForte Second Am. Compl.
No. 42; Townsend Second Am. Compl.

~37(c),

~76(c),

ECF

ECF No. 43.) Plaintiffs contend that a genuinely

disputed issue of fact remains as to whether the Borough's police department manual conferred
on them a legitimate expectation of continued employment.
In support of this proposition, Plaintiffs cite Stevens v. Telford Borough, supra, wherein
the court stated the following:
In determining whether a manual constitutes a binding contract in Pennsylvania, a
court must ask whether "a reasonable person in the employee's position would
interpret [a handbook's] provisions as evidencing the employer's intent to be
legally bound and supplant the at-will rule." Luteran v. Loral Fairchild Corp.,
455 Pa. Super. 364, 688 A.2d 211, 214 (Pa. Super. Ct. 1997); see also, Martin v.
Capital Cities Media, Inc., 354 Pa. Super. 199, 511 A.2d 830, 842 (Pa. Super. Ct.
1986). This question not one of fact, but one of legal interpretation reserved for
the court. Ruzicki v. Catholic Cemeteries, 416 Pa. Super. 37, 610 A.2d 495, 497
(Pa. Super. Ct. 1992) ("[I]t is for the court to interpret the handbook to discern
whether it contains evidence of the employer's intention to be legally bound.");
15

Reilly v. Stroehmann Bros. Co., 367 Pa. Super. 411, 532 A.2d 1212, 1216 (Pa.
Super. Ct.1987) ("whether the employment handbook evidences an intent that it
become a legally binding contract ... is a question of interpretation and is therefore
left to the court."); Martin, 511 A.2d at 841 ("It is for the court to interpret the
handbook to discern whether it contains evidence of the employer's intention to be
legally bound ..... ").
Stevens, 2014 WL 4056952, at *7. Plaintiffs contend that there is presently no evidence before
the Court that would permit it to make a determination as to whether the policy manual
evidences an intention to bind the parties. Consequently, Plaintiffs insist that entry of summary
judgment would be inappropriate.
Plaintiffs argument in this regard is unconvincing. In Pennsylvania, the general rule is
that a "public employee takes his job subject to the possibility of summary removal by the
employing authority. He is essentially an employee-at-will." Scott v. Phila. Parking Auth., 166
A.2d 278, 280 (Pa. 1960); see also Rank v. Twp. of Annville, 641 A.2d 667, 670 (Pa. Commw.
Ct. 1994); Bolduc v. Bd. of Supervisors, 618 A.2d 1188, 1190 (Pa. Commw. Ct. 1992).
Consequently, public employees in Pennsylvania generally have no legitimate entitlement to
continued employment. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citing authority).
Moreover, "[a] local government in Pennsylvania cannot provide its employees with tenure
status unless there exists express legislative authority for doing so." Id. at 282 (citing authority).
That is because "(t]enure in public employment, in the sense of having a claim to employment
which precludes dismissal on a summary basis is, where it exists, a matter of legislative grace ...

." Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 334 (Pa. 1995) (quoting Scott, 166 A.2d at
280-82); see also Elmore, 399 F.3d at 283 ("Absent explicit enabling legislation from the
Pennsylvania General Assembly, a township such as Huntington cannot employ workers on
anything but an at-will basis.") (citing authority).

16

In Stevens, the court held that the Telford Borough Police Department's Policy Manual
and Rules and Procedures ("Manual") did not confer upon the plaintiff contractual employment
rights inasmuch as (1) there was no clear evidence of the Borough's intent to abrogate the default
presumption of employment-at-will, and (2) no reasonable employee in the plaintiffs position
could interpret the Manual as doing so. Stevens, 2014 WL 4056952, at *7. The Stevens court
did not address the more fundamental rule that local governments in Pennsylvania cannot
provide their employees with tenure status absent a legislative grant of authority. See Elmore,
399 F.3d at 282.
Presumably, the civil service protections applicable to members of a "police force" under
the Pennsylvania Borough Code constitutes the type of "legislative grace," Stumpp, 658 A.2d at
334, that would permit Worthington Borough to deviate from the usual employment-at-will
presumption. See Elmore, 399 F.3d at 283 n. 4 ("Examples of 'legislative grace' ... whereby
the Pennsylvania General Assembly has precluded the dismissal of public employees on a
summary basis include the Civil Service Act, see 71 PA. CONS. STAT. § 741.1 et seq., and the
Public School Code of 1949, see 24 PA. CONS. STAT. § 1-101 et seq.") (quoting Stumpp, 658
A.2d at 334). As previously discussed, however, the state legislature has limited the reach of the
Borough Code's civil service protections to members of a "police force" as that term is
statutorily defined, and Plaintiffs do not fall within that definition. Nor, apparently, is this a
situation where members of the Worthington Borough Police Department have obtained
contractual employment rights pursuant to the collective bargaining process authorized by Act
111. See 43 PA. STAT. §217 .1 (granting police officer and firefighters employed by a political
subdivision of the Commonwealth the right to engage in collective bargaining). Consequently,
Worthington Borough lacked the authority to offer Plaintiffs a contract of employment. See

17

Elmore, 399 F.3d at 283 ("Absent explicit enabling legislation from the Pennsylvania General

Assembly, a township such as Huntington cannot employ workers on anything but an at-will
basis.") (citation omitted).
Even assuming, however, that Worthington Borough did have the authority to employ
Plaintiffs on more than an "at-will" basis, the record does not support a reasonable inference that
the Borough did so. Here, Plaintiffs have produced no evidence, much less "clear evidence,"
that the Borough, through the alleged policy and procedure manual, intended to abrogate the
default presumption that Plaintiffs were at-will employees. Not only is the purported manual not
part of the record, but Plaintiffs cite no portion of it directly, either in their pleadings or their
brief.

In fact, the operative pleadings provide nothing more than a self-serving, conclusory

averment that each Plaintiff had a constitutionally protected interest in his job arising from the
"Worthington Police Department Policy and Procedure Manual." (See ECF No. 42,
No. 43,

~37.)

~76;

ECF

Similarly, Plaintiffs' brief in response to the pending motion offers only a

conclusory assertion that the manual "precludes discipline except for cause." (Pls.' Br. Opp.
Mot. Summ. J. at 11, ECF No. 101.)

This is plainly insufficient, since "[u]nsubstantiated

arguments made in briefs are not considered evidence of asserted facts." Boomer v. Samuals,
No. 3:CV-14-1692, 2017 WL 1062418, at *3 (M.D. Pa. Mar. 21, 2017) (citing Versarge v. Twp.

of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993)).

Thus, there is nothing in the record to

substantiate Plaintiffs' bald assertion that the alleged policy and procedures manual gave them a
protected property interest in continued employment. 7

7

To the extent Plaintiffs are suggesting that the Court may not reach this issue and/or that Defendants failed to
demonstrate the absence of a genuine issue of material fact, this Court is not persuaded. Defendants' motion
explicitly requests summary judgment on the § 1983 due process claims by pointing to a fatal deficiency in one
essential element of those claims - namely, the requirement that Plaintiffs demonstrate a protected property interest
in their continued employment. To satisfy their initial Rule 56 obligation, defendants need not refute every possible
legal theory that might support a plaintiff's claim. See Fed. R. Civ. P. 56(a) (allowing a party to move for summary
judgment by identifying each claim, or the part of each claim on which summary judgment is sought). Furthennore,

18

4. The Worthington Borough Ordinance of Progressive Discipline
In their respective pleadings, DeForte and Townsend each asserted a constitutionally
protected property interest in their jobs arising from, among other things, a "Worthington
Ordinance setting forth a progressive discipline policy." (DeForte Second Am. Compl.
ECF No. 42; Townsend Second Am. Compl.

~37(d),

ECF No. 43.)

~76(d),

Plaintiffs contend that

summary judgment is inappropriate because an issue of fact remains as to whether they had a
legitimate expectation of continued employment as Worthington Borough police officers by
virtue of the aforementioned ordinance.
Again, the Court is not persuaded that a genuinely disputed issue of material fact exists.
Defendants have met their prima facie obligation under Rule 56 by pointing out the absence of
evidence to support a finding that DeForte and Townsend had a protected property interest in
their jobs.

Fed. R. Civ. P. 56(a).

In order to overcome Defendants' motion for summary

judgment, Plaintiffs must go beyond the allegations in their pleadings and point to evidence in
the record that supports the existence of a genuinely disputed issue relative to the purported
property interest. Fed. R. Civ. P. 56(c)(l)(A); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Here, Plaintiffs have offered nothing beyond their conclusory assertion that they are
protected under "the Worthington Ordinance setting forth a progressive discipline policy." (Pls.'
Br. Resp. Defs.' Mot. Summ. J. at 12, ECF No. 101.) To date, Plaintiffs have not identified this
purported ordinance either in their operative pleadings or in their brief opposing summary
the law is clear that, once an essential element of a plaintiff's claim has been challenged, it is incumbent upon the
plaintiff to identify evidence that could give rise to an issue of fact supporting that element. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986) (noting that Rule 56 mandates the entry of summary judgment against a party
who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on
which it will bear the burden of proof). As is clear from the Stevens court's analysis, Plaintiffs had the burden of
demonstrating that the alleged manual demonstrates a clear intent on the part of the Borough to overcome the
Plaintiffs' presumptive at-will employment status.

19

judgment, and Defendants specifically deny that such an ordinance exists. (See Defs.' Reply Br.
Supp. Mot. Summ. J. at 7, ECF No. 102.) To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586-87; see also Podobnik v. US. Postal Service, 409
F.3d 584, 594 (3d Cir. 2005) (stating party opposing summary judgment "must present more
than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine
issue") (internal quotation marks omitted). Plaintiffs have failed to demonstrate the existence of
a genuinely disputed issue of fact insofar as they claim a protected interest in continued
employment under the as-yet-unidentified ordinance.
5. The Pennsylvania's Whistleblower Law
Finally, DeForte and Townsend have each asserted a constitutionally protected property
interest in their jobs arising from the Pennsylvania Whistleblower Law. (See DeForte Second
Am. Compl.

~76(b),

ECF No. 42; Townsend Second Am. Compl.

~37(b),

ECF No. 43.)

Plaintiffs contend that genuine issues of material fact exist as to this theory and, making a grant
of summary judgment premature.
The Court does not agree.

For reasons previously discussed, Plaintiffs were at-will

employees not subject to the protections afforded by the Borough Code's civil service
provisions. '"The decisional law is clear that an at-will employee does not have a legitimate
entitlement to continued employment because [he] serves solely at the pleasure of [his]
employer.'" Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (quoting Elmore v.
Cleary, 399 F.3d 279, 282 (3d Cir. 2005)). Although the Pennsylvania Whistleblower Law
affords covered employees a remedy for wrongful discharge, discrimination or retaliation when
undertaken with a specific, unlawful intent, see 43 Pa. Stat. §§ 1423-1424, it does not confer on

20

at-will employees a constitutionally protected property interest in their continued employment.

See Conrad v. Northumberland Cty., No. 4:09-CV-1326, 2010 WL 454960, at *6 (M.D. Pa. Feb.
3, 2010) (dismissing procedural due process claim on the grounds that the plaintiff, an at-will
employee, did not have a legitimate entitlement to continued employment; court noted that,
"[ e ]ven if [plaintiff] is entitled to relief as a whistle blower, there is nothing in the Pennsylvania
case law to suggest that status as a whistle blower confers a property right in continued
employment"); see also Dichter v. City of Phi/a., Civil Action No. 14-5611, 2015 WL 1511028,
at * 10-11 (E.D. Pa. April 1, 2015) (dismissing procedural due process claim of at-will employee
on the grounds that plaintiff/employee lacked a property interest in her job, despite plaintiffs
claim that she had a property interest by virtue of Pennsylvania's Whistleblower Law).
6. Summary of the Court's Analysis
In sum, the Court finds that there is no genuinely disputed issue concerning the fact that
Plaintiffs lacked a constitutionally protected property interest in their jobs as police officers for
the Borough of Worthington. Because Plaintiffs cannot establish this material element of their
procedural due process claims, Defendants' Motion for Summary Judgment will be granted as to
the § 1983 claims asserted at Count I of their respective pleadings.

B. Plaintiffs' State Law Claims
Plaintiffs' only remaining causes of action at this juncture arise under Pennsylvania law.
At Count III of their respective pleadings, DeForte and Townsend have asserted claims under
Pennsylvania's Whistleblower Law. (See DeForte Second Am. Compl.
Townsend Second Am. Compl. at

~~

~~

80-88, ECF No. 42;

44-52, ECF No. 43.) At Count IV of their respective

pleadings, they have asserted claims for tortious interference with business relations. (DeForte

21

Second Am. Compl. ~~ 89-106, ECF No. 42; Townsend Second Am. Compl. at~~ 53-67, ECF
No. 43.) 8
Having disposed of Plaintiffs' federal § 1983 claims, this Court has only supplemental
jurisdictional over the remaining state law claims. Pursuant to 28 U.S.C. § 1367, a federal court
may decline to exercise supplemental jurisdiction when it "has dismissed all claims over which it
has original jurisdiction." 28 U.S.C. § 1367(c)(3). As a general matter, when all federal claims
have been dismissed from the lawsuit, a district court should refrain from exercising
supplemental jurisdiction, absent extraordinary circumstances. Angeloni v. Diocese of Scranton,
135 F. App'x 510, 515 (3d Cir. 2005) (citations omitted). "A district court's decision whether to
exercise [supplemental] jurisdiction after dismissing every claim over which it had original
jurisdiction is purely discretionary." Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009).
In this case, no extraordinary circumstances exist as might compel the Court to retain
supplemental jurisdiction over the Plaintiffs' remaining state law claims. The state law claims in
this action are factually related to the federal claims, but they do not involve issues of federal
policy and are better resolved in state court. Full discovery has not yet occurred, so the case is
still in a relatively early procedural posture. To the extent there have been delays in the litigation
thus far, the delays are primarily attributable to Plaintiffs' failure to timely prosecute their
claims. Considerations of judicial economy, convenience, fairness, and comity do not otherwise
militate in favor of continued federal jurisdiction. Accordingly, Plaintiffs' Whistleblower and
tortious interference claims will be dismissed without prejudice so that Plaintiffs can pursue
them in state court.

8

Both Plaintiffs asserted claims for alleged conspiracy at Count II of their respective pleadings; however, the
conspiracy claims were previously dismissed.

22

IV.

CONCLUSION
For the reasons set forth above, Defendants' Motion for Summary Judgment will be

granted as to Count I of DeForte's Second Amended Complaint and Count I of Townsend's
Second Amended Complaint. Plaintiffs' remaining claims under Pennsylvania's Whistleblower
Law and for tortious interference with business relations will be dismissed without prejudice so
that Plaintiffs may reassert them in state court.
An appropriate Order will issue.

Mark R. Hornak
United States District Judge
Dated: March 24, 2017
cc:

All counsel ofrecord

23