Cohen v. City of Philadelphia

Decision Date06 June 1984
Docket NumberNo. 83-1575,83-1575
PartiesCOHEN, Harris and Cohen, Olga, h/w, appellants, v. CITY OF PHILADELPHIA and Green, William J., Mayor, City of Philadelphia and Solomon, Morton B., Police Commissioner, City of Philadelphia and Civil Service Commission, City of Philadelphia and D'Amato, Anthony, Personnel Director, City of Philadelphia and Goode, W. Wilson, Managing Director, City of Philadelphia, appellees.
CourtU.S. Court of Appeals — Third Circuit

Michael Anthony De Fino (argued), De Fino, De Fino & De Fino, P.C., Philadelphia, Pa., for appellants.

Pamela Foa (argued), Russell S. Endo, Asst. City Sol., John M. Myers, Divisional Deputy City Sol., City of Philadelphia Law Dept., Philadelphia, Pa., for appellees.

Before HUNTER, BECKER, Circuit Judges, and HOFFMAN, * District Judge.


JAMES HUNTER, III, Circuit Judge:

Harris Cohen, appellant, 1 was employed as a police officer with the City of Philadelphia for approximately seven and one half years before his dismissal on May 26, 1980 for suspected participation in a burglary. After being acquitted in a criminal trial, Cohen was reinstated without back pay. He now sues the City of Philadelphia and certain of its officers claiming that they deprived him of property without due process of law in violation of 42 U.S.C. Secs. 1983 2 and 1985 3 (Supp. V 1981). The district court granted summary judgment in the defendants' favor and Cohen appeals. We will affirm.


On May 5, 1980, while appellant was on duty, one or more police officers burglarized the Cobbs Creek Appliance Store in Philadelphia. Cohen was one of four police officers arrested and charged in connection with the burglary. Two of these officers, Klein and Ricciardi, pled guilty and furnished information to the Police Department and the District Attorney's Office in furtherance of their investigation. It was learned during the course of this investigation that Klein paid Cohen $100 following the burglary. Based upon this fact and the surrounding circumstances, the department dismissed Cohen.

Police Commissioner Solomon informed appellant in writing on May 27, 1980 that he had been discharged effective May 26, 1980 for his participation in the burglary. The Philadelphia Civil Service Regulations provide that an employee who has been discharged may appeal to the Civil Service Commission within thirty days to obtain a review of the decision. Appellant made no attempt to appeal his discharge within thirty days.

In March, 1981, Cohen was acquitted of all criminal charges. He then petitioned for and received an order from the Court of Common Pleas allowing him to file his Civil Service Commission appeal nunc pro tunc. He appealed his dismissal to the Civil Service Commission on September 3, 1981--a full one and one half years after his dismissal.

The Civil Service Commission heard Cohen's appeal on December 16, 1981. At that hearing, the transcript from Cohen's criminal case was submitted. Cohen testified and admitted receiving $100 from Ricciardi, but stated that the $100 was in repayment of a loan made to Klein, his former superior, shortly before the burglary. On January 8, 1982, the Civil Service Commission issued its opinion. The Commission concluded that there was insufficient evidence to implicate Cohen in criminal activity. It determined, however, that appellant had violated a Police Department directive in making a loan to a superior. The Commission therefore ordered his reinstatement, but held that the reinstatement should be without back pay.

At that point, Cohen had the opportunity to petition for rehearing before the Civil Service Commission, and to appeal the Commission's decision to the Philadelphia Court of Common Pleas and onward through the state appellate system. He chose not to do so. Rather, Cohen brought this action in federal court pursuant to section 1983, asserting that he had been deprived of property without due process of law.

Cohen asserted in the district court and on appeal that his right to due process was violated by the failure to afford him a pre-termination hearing, and by the later failure to award him back pay upon reinstatement. 4 The district court concluded that Cohen had sufficient remedies in state law, and that under the rule announced in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), therefore, he had not been deprived of property without due process. We will affirm.


In any section 1983 action two essential elements must be established: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt, 451 U.S. at 535, 101 S.Ct. at 1912. The first prong of the test is clearly met in this case: Philadelphia and the individual defendants undisputedly acted under color of state law. For the purposes of this appeal, therefore, we must focus on whether Cohen was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States.

Cohen alleges that he was deprived of a constitutional right when he suffered a deprivation of property without due process of law in violation of the Fourteenth Amendment. 5 Defendants concede that Cohen possessed a property interest in his job. The only question remaining for our resolution, therefore, is whether Cohen was deprived of this property interest without due process of law.

Cohen argues from two different angles that his right to due process was offended by the failure to award him back-pay. First he argues that due process requires that he be given a pre-termination hearing unless his right to back pay is absolutely guaranteed upon his being vindicated of the charged misconduct. 6 Second, he argues that the Commission violated due process in practice by refusing to award him back-pay after concluding that he was guilty only of derelictions that had not been included in the charge against him.

We, like Cohen, are skeptical that Philadelphia could constitutionally establish procedures allowing it to dismiss employees without a hearing and to deny backpay even if the charges supporting discharge later prove unfounded. In balancing "the importance of the private interest and the length or finality of the deprivation; the likelihood of governmental error; and the magnitude of the governmental interests involved," Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 1157, 71 L.Ed.2d 265 (1982) (citations omitted), we might well find that such a system denied the employee due process of law. Similarly, we are sympathetic to Cohen's argument that he could not constitutionally be denied back pay on the basis of charges conceived by the Commission after his hearing--charges of which he had never been informed and against which he had never been given an opportunity to defend. The right to a hearing is certainly of little value without prior notice of the charges presented, in sufficient detail fairly to enable the party charged to demonstrate any error that might exist. See Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). 7

With all of this conceded to Cohen, however, he has not established that the state failed to provide him due process of law. In this case, as in Parratt, the initial deprivations cannot be viewed in isolation. Rather, we must also consider whether the deprivation resulted from a "random and unauthorized act by a state employee" or, instead, occurred as the result of "some established state procedure." Parratt, 451 U.S. at 541, 101 S.Ct. at 1916. If we conclude that Cohen's deprivation resulted from the "Commission's error" rather than from "the state system itself," Logan, 455 U.S. at 436, 102 S.Ct. at 1158, we must then consider whether the means of redress provided by the state satisfy the requirements of the Due Process Clause. In such a case, Cohen will have established a section 1983 claim only if the remedies provided by the state do not comport with the requirements of due process.

We conclude that Cohen was entitled to back pay after the charges against him proved unfounded, and that the failure to award him back-pay was the result of Commission error. Although the Philadelphia Home Rule Charter is ambiguous at best regarding the Commission's discretion over back pay, 8 it has been interpreted to require the Commission to award back pay to a wrongfully discharged employee--one who is not proven to have committed the acts for which he was discharged. See Gallagher v. Civil Service Commission, 16 Pa.Cmwlth. 279, 330 A.2d 287 (1974) (Commission reinstated officer acquitted of charges against him, but denied back pay because evidence raised "inference" of conduct unbecoming an officer; portion of Commission's order denying back pay reversed).

Nor may the Commission deprive Cohen of an otherwise required award of back pay because it has found him guilty of derelictions with which he had not previously been charged. The Philadelphia Home Rule Charter requires that discharged employees be given specific notice of the charges they will face if they choose to appeal to the Civil Service Commission. 9 The Philadelphia Civil Service Regulations, promulgated pursuant to the Charter, also require that a dismissed employee be given notice both of the charges against him and the facts supporting those charges. 10 Pennsylvania case law further confirms that the Civil Service Commission may not, for any purpose, consider whether an individual has committed acts with which he has not previously been charged. See City of York v. Dinges, 21 Pa.Cmwlth. 322, 328, 345 A.2d 776, 780 (1975) (argument that plaintiff should have been dismissed in any event because of...

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