Aiello v. City of Wilmington, Del.

• Decision Date: 28 December 1976
• Docket Number: Civ. A. No. 74-216.
• Citation: 426 F. Supp. 1272
• Parties: Ronald J. AIELLO, Plaintiff, v. The CITY OF WILMINGTON, DELAWARE, et al., Defendants.
• Court: U.S. District Court — District of Delaware

426 F. Supp. 1272

Ronald J. AIELLO, Plaintiff, v. The CITY OF WILMINGTON, DELAWARE, et al., Defendants.

Civ. A. No. 74-216.

United States District Court, D. Delaware.

December 28, 1976.

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John S. Grady and Sheldon N. Sandler of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiff.

James W. Semple of Flanzer & Isaacs, Perry F. Goldlust, Asst. City Sol., Wilmington, Del., for defendants.

Roger P. Sanders of Prickett, Ward, Burt & Sanders, Wilmington, Del., for defendant Malloy.

OPINION

MURRAY M. SCHWARTZ, District Judge.

Ronald J. Aiello ("Aiello") is a former fireman for the City of Wilmington. He has brought this action on behalf of himself and "all other persons similarly situated" against the City of Wilmington, Delaware, and Thomas C. Maloney in his official capacity as mayor; the City's Department of Public Safety and Norman Levine, individually and as Commissioner of the Department of Public Safety; as well as against the Wilmington Bureau of Fire and several of its officers in either their individual or official capacities or both. The action seeks declaratory and equitable relief in addition to damages for the alleged deprivation through the Bureau of Fire's disciplinary rules, regulations, and procedures of rights secured by the First, Ninth and Fourteenth Amendments and 42 U.S.C. § 1983. Aiello also asserts a cause of action for himself and the purported class for breach of a contract between the firefighters union and the City, and for violation of the Delaware Minimum Wage Law, 19 Del.C. § 901 et seq.¹ Jurisdiction is asserted pursuant to 28 U.S.C. §§ 1331, 1337, 1343, and the principle of pendent jurisdiction.

Presently before the Court are three motions: a Motion to Certify Class by plaintiff Aiello; a Motion for Partial Summary Judgment, also by the plaintiff; and a Motion for Summary Judgment by defendants. It is first necessary to describe the factual context in which this case arises prior to a detailed consideration of the plaintiff's claims and the present motions.

Facts

Plaintiff Aiello was employed as a fireman for the City of Wilmington from June 3, 1966, until November 7, 1975, when he voluntarily took retirement. His career as a firefighter was essentially undistinguished until the night of January 30, 1973, when the catalytic events for this lawsuit transpired. Aiello spent that evening in Wilmington traveling from bar to bar, consuming alcoholic beverages in quantities sufficient to induce intoxication, although the level and duration of his intoxication is unclear. His memory of his activities that evening is hazy, but he does not dispute that sometime after midnight he gained entrance to the Record Museum, a retail establishment located on Wilmington's Market Street, by breaking a glass panel in its front door. He was subsequently found lying face down on the floor near a counter by two policemen sent to investigate an alarm which he had triggered. Aiello recalls that as he was taken into custody he stated he was a city fireman and asked that he not be arrested. Aiello First Deposition, Docket No. 33 at 12.²

Following his arrest, Aiello was taken to the "lock up" in City Hall. The ranking fire bureau official then on duty, Assistant Fire Chief Francis H. DiMichele ("DiMichele") (named as a defendant in his official capacity) arrived shortly thereafter, having been notified that a fireman was in trouble. According to DiMichele, he "spoke to some of the police officers there" and ascertained the charge on which Aiello was being held. DiMichele Deposition, Docket No. 34 at 3. Having learned that the charge was burglary, DiMichele then confronted Aiello at least twice, seeking a statement concerning the incident. Although there are some minor disputes over the exact chronology and circumstances of the confrontations, it is clear that Aiello limited himself to a statement that "it was a physical and mental problem." First Aiello Deposition, Docket No. 33 at 6.³ There is no dispute that DiMichele later returned and informed Aiello that he was forthwith suspended from the Bureau of Fire pursuant to sections 169.16 and 169.23 of its Rules and Regulations. They provide as follows:

"169. Under penalty of suspension, fine, overtime, reprimand, or dismissal, every member of the Bureau of Fire is ordered to perform all of the following Rules and Regulations:

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16. To refrain from conduct unbecoming a fireman and a gentleman whether on or off duty.

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23. Be governed by the customary rules of good behavior observed by law-abiding and self-respecting citizens. Regardless of the time or place, whether in uniform or not, members shall conduct themselves in a manner that will not bring discredit to themselves or to the Department."⁴

Also, there is no dispute that as part of the suspension Aiello's pay was withheld in accordance with Bureau of Fire Rule 206.⁵

It is at this point that the recollections and assertions of the parties begin to diverge. While Aiello concedes a lack of personal knowledge of the matter, he asserts that his suspension was ordered by John J. Malloy ("Malloy"), named in this suit as a defendant in his official capacity, and serving at the time of Aiello's arrest as Chief of the Bureau of Fire. This assertion is apparently based on Aiello's understanding of the requirements of the Bureau's "chain of command." First Aiello Deposition, Docket No. 33 at 20. While Malloy admits that he was contacted by DiMichele about the events unfolding with respect to Aiello, he characterizes the conversation as only informational in purpose. Malloy Deposition, Docket No. 35 at 16-17. Neither Malloy nor Norman Levine ("Levine"), Malloy's superior as Commissioner of Public Safety, countermanded the suspension the following day when afforded the opportunity to review the available information. Levine Deposition, Docket No. 64 at 50; Malloy Deposition, Docket No. 35 at 16; see Docket No. 29, Exhibits (Report from DiMichele to Malloy dated January 30th concerning Aiello's arrest and suspension).

Aiello by his own account was subsequently instructed in early February, 1973, by Bureau of Fire Chief Malloy to report to his fire station twice a day for the entirety of his suspension—a requirement then imposed on suspended firemen pursuant to regulation.⁶ He further alleges that Chief Malloy warned him that outside employment was barred while on suspension, and that a subsequent request the following month (March, 1973) to James P. Blackburn ("Blackburn"), Malloy's successor as Fire Bureau Chief (named as a defendant in both his individual and official capacities), for relief from the ban on outside employment on the grounds that Aiello's financial position was becoming increasingly dire met with a negative response. Plaintiff's Answers to Defendants' First Set of Interrogatories, Docket No. 40 at 9. The second request, conveyed by Father Burke, the Department Chaplain, was assertedly followed by a third and personal request by Aiello for permission to undertake outside employment or apply for welfare. According to Aiello, this request was also rejected. Id. The defendants, for their part, do not deny that a Bureau of Fire rule required Aiello "to report to his assigned fire department twice each day until April 4, 1973, while he was under suspension." Answer to Amended Complaint, Docket No. 87, ¶ 11. However, they deny that he was ordered not to seek outside employment. Id. Commissioner Levine testified that if Aiello had requested permission not to report so that he could obtain supplemental employment, it would have been granted. Levine Deposition, Docket No. 64 at 48.⁷

The distress to Aiello caused by his unpaid suspension and its alleged accompanying strictures may have been exacerbated by the unusually long hiatus between his suspension and his formal hearing before a Bureau of Fire Trial Board. While Aiello was suspended on January 30, 1973, his Trial Board hearing did not take place until May 8, 1973. According to Commissioner Levine and other defendants, the Trial Board hearing was held in abeyance pending resolution of the state criminal charges arising out of the Record Museum break-in which were then pending against Aiello. Levine testified on his deposition that the hiatus was based on a desire to protect Aiello's constitutional rights and was predicated on an informal oral opinion obtained from the then-City Solicitor to the effect that the Trial Board hearing should be delayed until the criminal charges had been resolved. Levine Deposition, Docket No. 64 at 47.

Notification of resolution of the criminal charges came in a letter dated April 11, 1973, from a Delaware Deputy Attorney General to Richard Allen Paul, an Assistant Public Defender and Aiello's attorney in the criminal matter. The letter stated that the State would proceed no further against Aiello because he "was not responsible for his acts on January 28, 1973 sic." Docket No. 29, Exhibit. Aiello subsequently received two "Charge and Specification" forms dated April 25th, signed by Assistant Chief DiMichele, which alleged violations of Rules 169.16 and 169.23 respectively. The detailed specification paragraph of the 169.16 charge stated that Aiello's behavior reflected "on his creditability as an employee of the Department of Public Safety as required by the Rules and Regulations of the Bureau of Fire."⁸ In a similar vein, the 169.23 charge noted, inter alia, that Aiello's "failure to observe rules of law-abiding citizens created distrust in performance of duty in the eyes of all members of the Department of Public Safety."⁹ Both documents informed Aiello of the composition of the Trial Board which was to hear the charges and recited the date and location set for hearing. Amended Complaint, Docket No. 83, Exhibit A. See Plaintiff's Answers to Defendants' First Set of Interrogatories, Docket No. 40, # 16.¹⁰ In addition, Aiello...