McCool v. City of Philadelphia, Civil Action No. 06-3393.

Citation494 F.Supp.2d 307
Decision Date27 June 2007
Docket NumberCivil Action No. 06-3393.
PartiesJoseph P. McCOOL, Plaintiff, v. CITY OF PHILADELPHIA, et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

Thomas Bruno, II, Abramson & Denenberg, PC, Philadelphia, PA, for Plaintiff.

Gregory Filosa, City Of Philadelphia Law Dept, Philadelphia, PA, for Defendants.


PRATTER, District Judge.

Joseph P. McCool served Philadelphia for a quarter of a century as a firefighter. He wants to do so again — so much so that he has sued the City of Philadelphia as well as various City officials in their official capacity1 (collectively, the "Defendants") pursuant to 42 U.S.C. § 1983 for various constitutional violations related to the handling of his application to return to the ranks of these notable public servants. Specifically, Mr. McCool charges the Defendants with violating his right to intrastate travel (Count I), his right to equal protection (Count II), his right to procedural due process (Count III), his right to engage in the common occupations of life (Count. IV), and his rights under the Privileges and Immunities Clause (Count V). The Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim for which relief can be granted. Mr. McCool opposes the motion.2 For the reasons discussed more fully below, the Court will deny the Motion as to Mr. McCool's intrastate travel claim, but grant the Motion as to the remainder of the Amended Complaint.


For the purposes of a motion to dismiss, the facts alleged in the Amended Complaint are deemed to be true. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Mr. McCool was a Philadelphia firefighter for over twenty-five years, serving as a Captain for his last six years. (Amd. Compl. ¶ 9.) During that time period, Mr. McCool lived in the City of Philadelphia. (Id. at ¶ 10.) Shortly after his retirement from the Philadelphia Fire Department in 2001, Mr. McCool sought reinstatement but was told that he would have to reapply for the position of firefighter. (Id. at ¶¶ 11, 13.) Mr. McCool followed the normal hiring procedures and took the firefighter examination, which he passed with a score of 95 (on a 100-point scale). (Id. at ¶ 14-15.) In December 2001, the City notified Mr. McCool that he was ranked number 516 on the eligibility list. (Id. at ¶ 15.) In January 2003, Mr. McCool moved to Feasterville, Pennsylvania, which is located in Bucks County, almost directly adjacent to the Philadelphia County line. (Id. at ¶ 16.)

On April 18, 2005, the Philadelphia Fire Department sent a letter to Mr. McCool at his former Philadelphia address informing him that his rank on the eligibility list had been reached and inviting him to attend an orientation. (Id. at ¶ 17.) Mr. McCool did not receive the letter but, having learned from other sources that his rank had been reached, sent a letter on May 12, 2005 to Philadelphia Fire Department Personnel office, informing the Defendants that he would establish residency in Philadelphia "on or before the hiring date." (Id. at ¶ 18.) By letter dated May 23, 2005, Karen Hyers informed Mr. McCool that, pursuant to City of Philadelphia Civil Service Regulation 30.01 ("Regulation 30.01"), he was "not eligible for consideration at this time" because he had "not been a resident of the City of Philadelphia for at least 12 months." (Id. at ¶ 120.)

City of Philadelphia Civil Service Regulation 30.01 provides:

30.01 REQUIREMENTS. An Ordinance of Council, Bill 79, effective April 16, 1953, enacted pursuant to authority of Section 7-401(u) of the Charter, requires each employee to have been a bona fide resident of the City for a period of one (1) year prior to his appointment and after appointment to maintain his bona fide residence in the City, unless such residence requirement is waived by the Commission.

Mr. McCool alleges that he was otherwise qualified to be a firefighter and was denied the position solely because he failed to meet the residency requirement set forth in Regulation 30.01 as interpreted by the Defendants.3 (Amd.Compl. ¶ 27.)

Under the plain language of Regulation 30.01, Mr. McCool is in fact eligible for consideration because he meets the literal terms of the residency requirement as written, that is, he has been "a bona fide resident of the City of Philadelphia for a period of one year prior to his appointment." Indeed, Mr. McCool was a bona fide resident of the City for 25 years prior to — albeit not immediately prior to — consideration of his candidacy. Of course, Regulation 30.01 no where states when (immediately or otherwise) the prior one-year period need be logged. The Defendants, however, contend that the "historical" interpretation of Regulation 30.01, for which they present no authority, requires bona fide residence for the 12 months immediately prior to appointment. Given the disparity between the express terms of the Regulation and the Defendants' interpretation of it, the Court will decide only whether Regulation 30.01 is unconstitutional as interpreted by the Defendants in the present case and leave for another day the question of whether Regulation 30.01 is unconstitutional as written.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley, 355 U.S. at 45-46, 78 S.Ct. 99. Such a motion will be granted only when it is "certain that no relief could be granted under any set of facts which could be proved by the plaintiff." Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). In making such a determination, the Court "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The Court, however, "need not accept as true `unsupported conclusions and unwarranted inferences,'" Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir.2000) (citing City of Pittsburgh v. West Penn Power Comp., 147 F.3d 256, 263 n. 13 (3d Cir.1998)), or the plaintiff's "bald assertions" or "legal conclusions," Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). A complaint should be dismissed "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893 106 L.Ed.2d 195 (1989) (quoting Hishon, 467 U.S. at 73, 104 S.Ct. 2229).


Mr. McCool seeks to invoke Section 1983 which imposes civil liability upon any person who, acting under color of state law, deprives another person of any rights, privileges or immunities secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). To state, a cause of action under Section 1983, Mr. McCool must allege sufficient facts which, if true, show that the Defendants, while acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993).

A. Count I: Violation of the Right to Intrastate Travel

The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. The Due Process Clause has a substantive component. See, e.g., Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 846-47, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure") (citation omitted); Nicholas v. Pennsylvania State University, 227 F.3d 133, 138-139 (3d Cir.2000).

1. The Substantive Due Process Right to Infra state Travel4

In any substantive due process case, the Court must first determine the standard of review. Sammon v. New Jersey Bd. of Medical Examiners, 66 F.3d 639, 643-44 (3d Cir.1995). In determining the appropriate standard, the Court "must look solely to the allegations of the complaint and the provisions of the challenged statute." Id. at 644. The choice of standard of review turns on whether a "fundamental right" is at stake. Id. (quoting Casey, 947 F.2d at 688).

The Court of Appeals for the Third Circuit has recognized that the substantive component of the Due Process Clause encompasses a right to intrastate travel. Lutz v. City of York, 899 F.2d 255 (3d Cir.1990). In Lutz, the Court of Appeals considered a "cruising" ordinance that prohibited "driving repeatedly around a loop of certain major roads through the heart of the city." Id. at 256. Although it ultimately upheld the ordinance, the court explained that an unenumerated constitutional right of intra state travel exists. Id. The contours of this right, however, are not clearly defined. Id. at 268, 269 (describing the right to intrastate travel as a "right to localized movement," the "right to travel locally through public spaces and roadways," and "the right to move freely about one's neighborhood or town"). The issue presented here in this case is whether the right recognized in Lutz guarantees only the right to "localized intrastate movement on public roads," as suggested by the Defendants, or whether it must be construed more broadly.

a. Does the Right to Intrastate Travel Encompass the Right the Change Residences?

The Supreme Court has recognized that the right to inter...

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