Covert v. REDEVELOPMENT AUTHORITY, ETC.

• Decision Date: 03 March 1978
• Docket Number: Civ. No. 77-864.
• Citation: 447 F. Supp. 270
• Parties: Lloyd Kenneth COVERT, Jr., Plaintiff, v. REDEVELOPMENT AUTHORITY OF the COUNTY OF HUNTINGDON et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

447 F. Supp. 270

Lloyd Kenneth COVERT, Jr., Plaintiff, v. REDEVELOPMENT AUTHORITY OF the COUNTY OF HUNTINGDON et al., Defendants.

Civ. No. 77-864.

United States District Court, M. D. Pennsylvania.

March 3, 1978.

Virginia B. Eisenstein, State College, Pa., for plaintiff.

F. Murray Bryan, Harvey Freedenberg, McNees, Wallace & Nurick, Harrisburg, Pa., A. Lynn Corcelius, Henry, Corcelius, Gates & Gill, Huntingdon, Pa., Frank A. Conte, Washington, Pa., for defendants.

OPINION

MUIR, District Judge.

Lloyd Kenneth Covert, Jr. brought this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331 seeking declaratory relief, reinstatement to his job, compensatory and punitive damages, and attorney's fees and costs based upon the Defendants' alleged violation of his constitutional rights under the due process clause of the Fourteenth Amendment of the United States Constitution. In addition, Covert contends that the Defendants have violated the laws of the Commonwealth of Pennsylvania and requests damages because of such conduct. On November 9, 1977, Defendants submitted to the Court a motion to dismiss Covert's complaint for failure to state a claim upon which relief could be granted. On November 23, 1977, the Defendants filed a brief in support of that motion. On December 7, 1977, Covert submitted a brief in opposition to that motion. On that same date, Covert filed an amended complaint pursuant to F.R.Civ.P. 15(a). The filing of the amended complaint mooted the Defendants' motion to dismiss. The amended complaint sets forth the same causes of action as the original. On December 15, 1977, the Defendants filed a motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted pursuant to F.R.Civ.P. 12(b)(6). On December 30, 1977, the Defendants submitted a brief in support of their motion. On January 16, 1978, Covert filed a responsive brief in opposition to Defendants' motion to dismiss. The last date for the filing of a reply brief by the Defendants was January 23, 1978.

For the purposes of a motion to dismiss the Court must accept as true all well pleaded allegations contained in the complaint and must construe them in the light most favorable to Covert. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977). Covert sets forth the following events in his amended complaint as the basis of his legal claims. The Redevelopment Authority of the County of Huntingdon (Redevelopment Authority) hired Covert as a permanent employee to work on the disaster urban renewal projects of Mt. Union, Smithfield, and Huntingdon. According to the amended complaint the employment was for the duration of the projects which was expected to be at least until October, 1978. Covert received several promotions from the date of his hiring on June 3, 1974 until he was finally designated chief of the bureau of services on July 1, 1976, at which position he served until he was terminated. On July 17, 1976, Covert allegedly believed that a certain house was subject to a demolition contract and was concerned about the safety of the items remaining in the house. On July 17, 1976 Covert allowed the removal by a third party of certain objects from the house for safekeeping. On July 19, 1976 Covert submitted a list of these items to Elwood Sager, an officer of the Redevelopment Authority. Unknown to Covert, the property which he had permitted to be removed was owned by the Redevelopment Authority. Sager on July 19, 1976 filed a complaint on behalf of the Redevelopment Authority with the Mt. Union Police Department against Covert charging him with theft by unlawful taking or disposition of property in the amount of $140.00. On July 20, 1977, the Redevelopment Authority voted to suspend Covert's employment with the Redevelopment Authority pending the completion of any and all investigations relative to the breaking into of the house. On July 22, 1976, Covert voluntarily returned the items to the Mt. Union Police Department. On that same date, Covert was arrested. On July 23, 1976, Richard C. Galway, at that time the executive director of the Redevelopment Authority, acting at the direction of the Redevelopment Authority, suspended Covert from the staff of the Authority pending completion of the investigations concerning Covert's conduct. Covert received notification of the suspension by letter on July 23, 1976. On September 13, 1976, Covert met with the solicitor and the members of the Redevelopment Authority. On September 21, 1976, the Redevelopment Authority voted unanimously to dismiss Covert who received notice of the action by letter dated September 22, 1976. According to his amended complaint at no time prior to his dismissal was he given any reasons for it, nor was he given any notice that his dismissal was being considered, nor was he given any notice that any particular grounds were being considered, nor was he given an opportunity for a hearing at which he could present evidence on his behalf or refute any charges which were being considered as the basis for his dismissal. On October 20, 1976, Covert was acquitted of the criminal charges which had been brought against him.

First, the Defendants contend that the amended complaint fails to state a claim upon which relief can be granted because Covert had no property interest in his continued employment under state law and thus was not protected by the due process clause of the Fourteenth Amendment. Plaintiff maintains that determining whether he had a property interest in his employment pursuant to state law does not constitute the controlling test and relies on the statement in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) that the Fourteenth Amendment does not create property interests but that they stem from independent sources such as state law. According to Covert this shows that state law is just one means of establishing a property interest. The Court rejects this view in the context of public employment. In Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the United States Supreme Court stated that a property interest in public employment for the purposes of due process could be created by ordinance or by implied contract but in either case the sufficiency of the claim of entitlement must be decided by reference to state law. In Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir. 1977), the United States Court of Appeals for the Third Circuit held that a public employee's claim of a property interest in a job must be decided by reference to state law. The cases that Plaintiff cites in support of his proposition that a property interest for due process purposes can be created without reference to pertinent state law cannot be followed by this Court because they conflict with the ruling of the United States Court of Appeals for the Third Circuit in Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir. 1977) and with the holding of the United States Supreme Court in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). But see Stapp v. Avoyelles Parish School Board, 545 F.2d 527 (5th Cir.1977); Gosney v. Sonora Independent School District, 430 F.Supp. 53 (N.D.Tex.1977).

This Court must determine whether Covert had a property interest in his continued employment with the Redevelopment Authority pursuant to the law of the Commonwealth of Pennsylvania. In Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960), the Supreme Court of Pennsylvania held that a public agency in the absence of a specific grant from the legislature lacked the ability to enter into a binding employment contract with an employee. The Court stated that an appointed public employee in the absence of an express legislative grant takes his job subject to the possibility of subsequent removal by the employing authority and is essentially an employee at will. Id. at 154, 166 A.2d 278. See Mitchell v. Chester Housing Authority, 389 Pa. 314, 132 A.2d 873 (1957); Accord Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975). The United States Court of Appeals for the Third Circuit concluded in Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir. 1977), that under Pennsylvania law public employees have no contractual right to dismissals only for cause unless the legislature has expressly provided tenure for a given class of employees. The statute allowing for the establishment of the Redevelopment Authority of Huntingdon County, Act of May 24, 1945, P.L. 991 § 1, 35 P.S. §§ 1701 et seq. does not provide for any entitlement to dismissal only for cause. Any expectations created by the Redevelopment Authority or its officers that employment with the Huntingdon Redevelopment Authority could be terminated only for cause and after a hearing are contrary to state law and cannot form a property interest pursuant to the due process clause of the Fourteenth Amendment of the United States Constitution. Covert's contention that the statute establishing redevelopment authorities differs significantly from the statute creating the parking authorities interpreted by the Pennsylvania Supreme Court in Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960) lacks merit. Any divergence between the two statutes concerning the powers of the respective authorities is not substantial and has no bearing on the power of an authority to create an expectation of continued employment in the absence of an express legislative grant.

Covert challenges the continued validity of the Pennsylvania Supreme Court's decision in Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960). The United States Court of Appeals for the Third Circuit in Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir.1977) has accepted as the law of Pennsylvania that public...