Hill v. Borough of Kutztown, 05-1356.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation455 F.3d 225
Docket NumberNo. 05-1356.,05-1356.
PartiesKeith A. HILL, Appellant v. BOROUGH OF KUTZTOWN and Gennaro Marino, Mayor of Kutztown, in his individual and official capacity.
Decision Date26 July 2006
455 F.3d 225
Keith A. HILL, Appellant
BOROUGH OF KUTZTOWN and Gennaro Marino, Mayor of Kutztown, in his individual and official capacity.
No. 05-1356.
United States Court of Appeals, Third Circuit.
Argued May 15, 2006.
Filed July 26, 2006.

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William P. Murphy, Esq., (Argued), Murphy & Goldstein, P.C., Philadelphia, PA, for Appellant.

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Timothy T. Myers, Esq., (Argued), Raymond J. Santarelli, Esq., John G. Dean, Esq., Elliott Greenleaf & Siedzikowski, P.C., Blue Bell, PA, Paul J. Dellasega, Esq., Thomas, Thomas & Hafer, Harrisburg, PA, for Appellee Gennaro Marino, Mayor of Kutztown.

Robyn F. McGrath, Esq., (Argued), Sweeney & Sheehan, P.C., Philadelphia, PA, Michael T. Sellers, Esq., Kardos, Rickles, Sellers & Hand, Newtown, PA, for Appellee Borough of Kutztown.

Before McKEE and GARTH, Circuit Judges, and LIFLAND, District Judge.*

GARTH, Circuit Judge.

On this appeal we review whether the District Court erred when it dismissed Keith A. Hill's complaint charging Gennaro Marino (the former Mayor of the Borough of Kutztown), and the Borough itself, with violating his rights under the United States Constitution, federal and state statutes, and the common law of Pennsylvania. The District Court dismissed Hill's 6-count complaint in its entirety. We will affirm in part, and reverse in part.


Appellant Hill, a licensed professional engineer, was appointed Borough Manager of Kutztown in early 1991. ¶¶ 4, 7.1 In this capacity, he reported to the Borough Council (which consisted of six elected members) and, "in respect to some subjects," to Gennaro Marino, the elected Mayor of the Borough. As Borough Manager, Hill was responsible for the administration of all departments within the Borough. ¶¶10-11.

In short, Hill's complaint alleges that Mayor Marino harassed him and other Borough employees. When he reported the Mayor's harassment to the Borough Council, the Mayor intensified his attacks on Hill as retaliation for this reporting (and for positions Hill took that were contrary to the Mayor's positions). As a result of the Mayor's conduct, Hill's workplace became so intolerable that he had no choice but to resign.2

More specifically, the complaint alleges as follows: Shortly after he took office in 2002, Mayor Marino "began orally to spread the word that he intended to get rid of" Hill and "other high-priced senior staff employees." ¶ 19. The Borough Council became aware of, and disapproved of, the things Marino was saying. Borough Council President Eric Ely wrote a letter to a local newspaper, The Patriot, that appeared in April, 2002 and stated:

Another way Mr. Marino has hurt the borough is in the manner in which he has conducted himself in the bars, clubs and community with talk smearing the reputation of good people. He has made many statements in those places of how he is going to get rid of certain council members and plans to have this or that borough employee replaced . . . His statements concerning these individuals are hurting the borough because they. . . are based on false opinions . . . [T]hose statements are hurting the good reputation of our hard-working employees.


Marino's conduct and behavior nevertheless continued. He told the Chief of Police

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that he "would make life difficult for him as a means to get him to resign as chief." ¶37. Further, he behaved in a hostile and intimidating manner toward several other Borough employees, each of whom approached Hill and told him about this treatment at the hands of the Mayor. ¶¶ 24-27, 30-35.

In addition to his threats to "get rid of" — and his hostile treatment of — Borough employees, Mayor Marino also made several false accusations against Hill. At a meeting of the Borough Council on April 23, 2002, Mayor Marino "demanded [Hill's] resignation, purportedly because of his involvement in certain appointments by [the] Council which the Mayor described as a `plot' that was corrupt and criminal." ¶ 22. Mayor Marino also told Borough employee Frank Caruso that Hill was "illegally moving funds to confuse everyone." ¶28.

"[A]s part of his duties as Manager," Hill reported Mayor Marino's conduct towards him and towards the other Borough employees to the Borough Council. ¶36.

Apparently at the same time that all of the above was occurring, Mayor Marino began "to attack the Borough's telecommunications project," with which Hill was identified, and which had traditionally enjoyed the support of the Borough Council. The Mayor "made clear his utter distaste" for the project. In response, Hill "advocated for [the project's] continuation." ¶¶ 39-41.

As retaliation (1) for Hill's reporting the Mayor's conduct to the Borough Council, (2) for Hill's advocacy in support of the telecommunications project, and (3) for Hill's support of other unspecified positions that were associated with the previous mayor, Mayor Marino continued his persecution of Hill. ¶¶ 43, 110. Specifically, the Mayor engaged in a series of "harassing, intimidating and oppressive confrontations with [Hill] at his workplace and at Council meetings," and defamed Hill to Borough employees, and to consultants present at Hill's workplace, and to the public. ¶44.

Hill sent a number of letters to the Borough Solicitor and had multiple conversations with the Personnel Committee of the Borough Council, asking each to "remedy the course of conduct by Defendant Marino." ¶ 45. In July 2002, Hill made oral complaints to the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). He subsequently filed a written complaint with the PHRC. ¶¶ 48-49.

The Mayor's conduct nevertheless persisted. On August 22, 2002, Mayor Marino published a "newspaper commentary" in which he accused Hill of "irregular or illegal" allocations of funds, and of "recklessly handling our money." ¶ 50. This accusation was false. The Borough of Kutztown actually possessed a AAA credit rating. Moreover, a bond attorney, a bond underwriter and Borough auditors had verified the Borough's solid financial condition and its efficient management. ¶ 51.

Prior to Mayor Marino's public attacks on him, Hill had enjoyed a reputation for honesty, integrity and professionalism. ¶ 52. After Marino's attacks, Hill was "subjected to scorn and ridicule," including one incident where Hill's son's employer confronted Hill and Hill's wife and told them that he, the employer, had heard the Mayor "was pursuing [Hill] concerning corruption." ¶ 54.

The Mayor's conduct, and the Borough Council's failure to stop it, made life so intolerable for Hill that he eventually had

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no choice but to resign. ¶ 55.3 Hill submitted a letter of resignation on August 29, 2002, which stated that he would cease work on October 12, 2002. ¶ 57.4

The Borough Council continued to be upset about Mayor Marino's conduct, and the effect it was having.5 It asked Hill to reconsider and stay on as Borough Manager. Hill refused, but did agree to postpone his departure until October 27, 2002. ¶¶66-67.

Hill then accepted a position with "the engineering consulting firm that had for years served in the role of Borough engineer." The Borough Council (by unanimous vote) initiated and worked out a part-time emergency "consulting" arrangement with that firm so that Hill could be made available to assist with certain urgent Borough tasks, such as budget preparation, in the period of transition to the new Manager. ¶¶ 68-73. Hill worked in this capacity, without receiving any additional salary for it, until January 2003, when the Borough hired a replacement. ¶¶ 74-76. The replacement was twenty-seven years old, ¶ 76, some fifteen or sixteen years younger than Hill, who was over 40 years of age when he left the Borough's employ. ¶ 4.6

Hill brought this lawsuit against Mayor Marino (in his individual and official capacities) and the Borough of Kutztown. The complaint alleged that the Mayor's campaign of harassment, defamation and retaliation deprived Hill of his job (through constructive discharge7), and did damage to his reputation and his ability to earn a

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living as a licensed professional engineer and a public servant See, e.g., ¶ ¶ 14, 58, 106. He further alleged that the Borough Council "did not halt, reverse or lessen or otherwise materially affect the alleged offending conduct of the Mayor." See, e.g., ¶16.

Hill's complaint asserted § 19838 claims against both the Mayor and the Borough for violation of his (1) procedural due process rights, (2) substantive due process rights, (3) equal protection rights and (4) First Amendment rights under the U.S. Constitution. The complaint also asserted against the Borough (5) a claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and state law claims for (6) violation of the Pennsylvania Human Relations. Act ("PHRA"), 43 PA. CONS.STAT. § 951, et seq. and (7) indemnification and restitution. Finally, the complaint asserted against the Mayor a(8) state law malicious prosecution claim.

Pursuant to Rule 12(b)(6), the District Court dismissed all of the federal claims against both the Mayor and the Borough, and the PHRA claim against the Borough. It then declined to exercise jurisdiction over the remaining pendent state common law claims.


The District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Our review of the District Court's dismissal of the complaint is plenary. "When considering an appeal from a dismissal of a complaint pursuant to Rule 12(b)(6), we accept as true all well-pled factual allegations. We examine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Delaware Nation v. Pennsylvania, 446 F.3d 410, 415 (3d Cir.2006) (citations omitted).


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