Blanding v. Pennsylvania State Police

• Decision Date: 07 February 1994
• Docket Number: No. 93-1049,93-1049
• Citation: 12 F.3d 1303
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 1309, 63 Empl. Prac. Dec. P 42,752 Jackson D. BLANDING, Appellant v. PENNSYLVANIA STATE POLICE; Thomas O. Marakovits; Ronald M. Sharpe.
• Court: U.S. Court of Appeals — Third Circuit

Page 1303

12 F.3d 1303

63 Fair Empl.Prac.Cas. (BNA) 1309,

63 Empl. Prac. Dec. P 42,752

Jackson D. BLANDING, Appellant v. PENNSYLVANIA STATE POLICE; Thomas O. Marakovits; Ronald M. Sharpe.

No. 93-1049.

United States Court of Appeals Third Circuit.

Argued Aug. 2, 1993.

Decided Dec. 30, 1993.

Rehearing Denied Feb. 7, 1994.

Stuart M. Wilder (argued), Newtown, PA, for appellant Jackson D. Blanding.

Harold I. Goodman (argued), Raynes, McCarty, Binder, Ross & Mundy, Sharon M. Dietrich, Community Legal Services, Inc., Philadelphia, PA, for amici curiae Keith Small, et al.

Ernest D. Preate, Jr., Atty. Gen., Denise A. Kuhn (argued), Deputy Atty. Gen., Kate L. Mershimer, Senior Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Service, Philadelphia, PA, for appellees.

Before: STAPLETON, HUTCHINSON and ROTH, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Jackson Blanding alleges that he was discharged from the Pennsylvania State Police ("PSP") without due process and because of racial animus. He brought this action claiming violation of the Fourteenth Amendment, Title VII, and the Civil Rights Act. After discovery, the defendants moved successfully for summary judgment, 811 F.Supp. 1084. This appeal followed. We will affirm.

I.

Blanding became a cadet at the PSP Academy on June 29, 1987. After graduating five months later, he was assigned to the Bethlehem Troop where he worked as a probationary trooper until his dismissal from the PSP on December 9, 1988.

Blanding's discharge stemmed from an incident that occurred on June 16, 1988. That evening, Blanding had an argument with his girlfriend, Lisa Serafine, in an apartment they shared in Philadelphia. There are conflicting accounts of what occurred. Serafine says that Blanding physically abused her in the apartment and pointed his loaded revolver at her head. Blanding denies pointing a gun at Serafine and insists that she attempted to kick him in the groin and that he struggled with her in self defense. Ultimately, Serafine left the apartment and Blanding followed her into the street. Some youths came to Serafine's assistance and Blanding told them to mind their own business. A struggle ensued and Blanding knocked one of the youths to the ground. The youths then left but, according to Blanding, said that they would be back "to finish it." Blanding went to his apartment, retrieved his revolver, sat on his front stoop, and awaited the return of the youths. The youths did return and fired five shots at Blanding. Blanding neither identified himself as a state police officer nor called the Philadelphia police for assistance. The Philadelphia Police Department later arrived on the scene and determined that Blanding had not fired his weapon during the incident.

Blanding reported his version of the incident to his supervisor. Because a shooting was involved, Blanding's actions were investigated by Lieutenant Thomas O. Marakovits of the PSP's Bureau of Professional Responsibility ("BPR"). After interviewing Blanding and conducting an investigation, Marakovits prepared a General Investigation Report which included summaries of witness interviews and relevant documents. The report makes no recommendation as to what discipline, if any, Blanding should receive.

Blanding claims that Marakovits' report contains four errors: (1) the account of one of Blanding's interviews incorrectly states that Blanding admitted to having smoked marijuana with Serafine when in fact he admitted only to being present on two occasions when marijuana was being smoked; (2) the assertion that Blanding failed to identify himself as a police officer is false; (3) the statement that Marakovits provided Blanding with the Philadelphia Police Department's report of the incident is incorrect; and (4) the account of a July 6, 1988, interview incorrectly states that Blanding did not mention Serafine's alleged threat to contact his superiors. ¹

Marakovits' allegedly flawed report was submitted to his supervisor who then forwarded it to Blanding's Troop Commander, Captain Robert G. Werts. Werts prepared a document charging Blanding with violating four sections of the PSP Code of Conduct. This document references the incident of June 16, 1988, but does not summarize the substance of Marakovits' report. After receiving Werts' charging document, Blanding was given an opportunity to rebut orally the charges against him. Blanding was also permitted to make a written response within ten days, and he did so.

The charging document and Marakovits' report were forwarded to the Department Disciplinary Officer, Captain Ronald A. Rostalski, for a decision on the penalty to be imposed. Rostalski decided that a supplemental personal interview of Serafine was desirable. Marakovits traveled to Florida, interviewed Serafine, secured a sworn statement from her, and thereafter submitted a supplemental report.

As Rostalski reviewed the information submitted to him, he was impressed with a discrepancy in Blanding's accounts of the events of June 16. Marakovits reported that Blanding, when asked during his second interview, denied having hit Serafine in the street, but the Philadelphia police report, based on an interview the night of the incident, reported that Blanding admitted to following Serafine outside and striking her in the head. Based on his review of the investigation, Rostalski believed the "course of events" to be:

That they had an altercation; that he did in fact strike Lisa Serafine; that he did in fact point a revolver at her head; that he did in fact go out to the street and get into an altercation with some of the youths and also hit Lisa Serafine out in the street; that he did in fact sit on the porch with his gun tucked in his belt and waited for some other youths to come at him, and that he did in fact not call the police as he appropriately should have done.

A-437.

Rostalski recommended to Deputy Commissioner Glenn A. Walp that Blanding be dismissed from the PSP. Walp concurred with Rostalski, and their recommendations were forwarded to Commissioner Ronald M. Sharpe, who ultimately approved Blanding's dismissal.

II.

Sections 205(e) and (f) of the Administrative Code of Pennsylvania provide:

(e) No enlisted member of the Pennsylvania State Police shall be dismissed from service or reduced in rank except by action of a court martial board held upon the recommendation of the Commissioner of the Pennsylvania State Police and the Governor.

(f) All new cadets and troopers shall serve a probationary period of eighteen months from date of original enlistment, during which time they may be dismissed by the Commissioner for violations of rules and regulations, incompetency, and inefficiency without action of a court martial board or the right of appeal to a civil court.

71 Pa.Stat.Ann. Secs. 65(e)-(f) (1990 & Supp.1993).

Blanding insists that Sec. 205(f) gave him a property interest in his employment of which he could not be deprived without the due process of law mandated by the Fourteenth Amendment to the United States Constitution. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Since the district court, in granting summary judgment to the defendants, concluded that Blanding did not have a state conferred property interest that entitled him to due process protection prior to his discharge, Blanding argues that the judgment of the district court must be reversed.

The parties agree that under Fourteenth Amendment law Blanding would have been entitled to notice of the charges against him and a pre-termination hearing if Pennsylvania law mandated that he could be discharged only for cause. They further agree, at least for present purposes, that Blanding did not receive an adequate notice and hearing. Finally, the parties agree that if Blanding was subject to dismissal at the discretion of the Commissioner, no such notice and hearing were required and his due process rights were not violated. The issue for resolution is thus the extent of Blanding's interest in his employment under Pennsylvania law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). ²

More particularly, the proper disposition of Blanding's due process claim turns on how one interprets Sec. 205(f). If the legislature intended that section to provide assurance to probationary troopers that they could be dismissed only for one of the three identified clauses, the process called for by the Due Process Clause has to be given. On the other hand, federal due process is not required if the legislature intended Sec. 205(f) to instruct the Commissioner to treat probationary troopers differently than non-probationary troopers and, at the Commissioner's discretion, to dismiss probationary troopers for such things as violations of the rules, incompetency, and inefficiency, without convening a court martial board.

We must give Sec. 205(f) the reading that we believe the Pennsylvania Supreme Court would give it. Since that court has not interpreted Sec. 205(f), we must look to the decisions of Pennsylvania's intermediate appellate courts and follow the guidance we find there unless there is some reason to believe the Pennsylvania Supreme Court would take a contrary view. Nationwide Mut. Ins. Co. v. Hampton, 935 F.2d 578, 580 (3d Cir.1991). Because there are four cases from Pennsylvania Commonwealth Court which interpret Sec. 205(f) in a manner inconsistent with Blanding's position and because we see no reason to believe the Pennsylvania Supreme Court would reject the view there taken, we are constrained to affirm the district court's summary judgment on Blanding's due process claim.

The plaintiffs in Marino v. Pennsylvania State Police, 87 Pa.Cmwlth. 40, 486 A.2d 1033 (1985) (in banc), were probationary troopers who had been discharged for allegedly cheating on examinations. Because there was no pre-termination...