IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DEVORE : CIVIL ACTION

:

 v. :

:

CITY OF PHILADELPHIA, et al. : NO. 04-3030

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE September 7 , 2005

Presently before the Court are cross-motions for summary judgment in this Civil

Rights/Retaliation case. The Plaintiff, a former Philadelphia police officer who had been fired

for allegedly stealing overtime, originally brought suit against the City, the former police

commissioner, and other police officials, alleging that he was terminated from his position for

having turned in his former partner for stealing a cell phone. On March 17, 2003, the jury

returned a verdict for in favor of Devore. (Devore I) Prior to the Court’s ruling on the postverdict motions, the parties entered into a settlement agreement, the provisions of which included

agreements by the City to expunge Devore’s record, make pension plan contributions and vest

him in his pension, and refer to him as retired from the Philadelphia Police Department. 

In January, 2004, the Court was informed by the Plaintiff that the City had failed

to comply with the settlement agreement, in that it had not expunged Devore’s records, listed him

as retired or vested him in his pension. As a result, the Court was prepared to vacate the

settlement, reinstate the verdict and rule on the post-verdict motions.

Before doing so, however, we conducted a final settlement conference in

chambers. During that conference, and for the first time, the City was amenable to the possibility

of reinstating Devore to the Philadelphia Police Department, an idea they had theretofore

opposed. Devore stated that he would be satisfied with reinstatement, in lieu of the settlement

promises that the City had admittedly breached. As a result, on January 28, 2004, we issued an

Order enforcing the settlement. However, shortly thereafter, the Court was informed that the

City would not reinstate the Plaintiff. As a result, on February 6, 2004, we offered Devore the

option of continuing enforcement of the settlement agreement, or vacating the settlement. He

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chose the latter. We then proceeded to rule on the still-outstanding, post-verdict motions,

remitting the verdict for front pay and calculating attorneys’ fees, interest, and costs.

In July, 2004, Devore filed this new suit (Devore II) , alleging that the

Defendants’ failure to expunge his records and provide him a neutral reference, after agreeing to

do so in the original settlement, was a further act of retaliation in violation of § 1983, as well as

being motivated by Plaintiff’s race, in violation of Title VII and the PHRA. Devore also alleged

that the Defendants’ actions constituted an actionable breach of the settlement agreement, as

well as fraud, and a violation of state law regarding the release of expunged information. As a

result of the City’s failure to abide by the terms of the settlement agreement, Devore claimed that

he lost employment opportunities with Temple University, Beverly Perry, Esquire, and the

Pennsylvania State Police, (“the three prospective employers”).

On February 11, 2005, the Court granted partial summary judgment to the

Defendants, dismissing, among other claims, all contract claims based on breach of the original

settlement agreement. As a result of our Order on that date, only the following claims remain in

Devore II: Count I - § 1983 – (but based only on conduct occurring after Devore I); Count III -

Title VII and PHRA – (against the City only for Title VII liability, against all defendants for

PHRA liability, but, in both cases, based only on conduct occurring after Devore I); Counts V

through VII - fraud, releasing expunged information, emotional distress and defamation (against

only the individual defendants acting in their individual capacities); punitive damages (against

only the individual defendants acting in their individual capacities).

The Court further ordered that discovery proceed in stages. The first stage was

limited to issues relating to why the three prospective employers failed to hire Devore. These

summary judgment motions are the product of the completion of that stage of discovery.

In the current motions, the Defendants contend that the reason the three

prospective employers did not hire Devore had nothing to do with the City’s failure to expunge

Devore’s record or show him as retired. Thus, even if the Defendants were motivated to breach

the settlement agreement by Plaintiff’s protected conduct (turning in his former partner, bringing

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3

suit in Devore I, or winning Devore I), or by his race, they still argue that the Plaintiff cannot

meet his burden to show causation, i.e., that any action or inaction on the Defendants’ part

caused the prospective employers to disqualify Devore from employment. 

For his part, the Plaintiff contends that the discovery that has been completed

establishes that he is entitled to partial summary judgment regarding the Perry employment. He

also argues, for the first time, that certain statements made by the current Police Commissioner,

during his deposition in an unrelated case, now establish that the City fraudulently breached an

agreement to reinstate Devore to the Philadelphia Police Department, following the aborted resettlement of the case.

I. LEGAL STANDARD

Summary judgment is warranted where the pleadings and discovery, as well as

any affidavits, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The moving party has the

burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). When ruling on a summary judgment motion, the Court must

construe the evidence and any reasonable inferences drawn from it in favor of the non-moving

party. Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358 , 361 (3d Cir. 1987). 

II. DISCUSSION

A. § 1983, Title VII and PHRA

The Defendants claim that the completed discovery demonstrates that Plaintiff

cannot establish that any action or inaction on their part actually caused him damages. The

Defendants contend that Temple University never even contacted the City about Devore; that the

job with Beverly Perry never really existed; and that the Pennsylvania State Police would not

have hired the Plaintiff regardless of the information disclosed regarding Plaintiff’s employment

with the Philadelphia Police Department. The Plaintiff, on the other hand, argues that the

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4

evidence establishes that Beverly Perry would have hired him, but for the Police Department’s

disclosures. He also claims that genuine issues of material fact bar summary judgment on the

Pennsylvania State Police position. 

1. Temple University

In the Amended Complaint, the Plaintiff contends that he was denied employment

by Temple University due to the retaliatory conduct of the Defendants. See Amended

Complaint, at ¶ 44, 79. However, it is now undisputed that Temple never contacted Devore’s

former employer. See Defendants’ Exhibit 8 (Letter of Virginia Lederman, Associate University

Counsel). Thus, as Plaintiff now concedes, he cannot establish that any action or inaction on the

part of the Defendants played any role in his failure to gain employment with Temple. We will

grant the Defendants’ motion with respect to the Temple employment.

2. Beverly Perry

 With respect to the investigator position with Ms. Perry, the Plaintiff contends

that Ms. Perry’s deposition testimony establishes that the disclosure by the Philadelphia Police

Department of Devore’s termination caused her not to hire Devore. The Defendants argue that

because there never was a job vacancy for Devore to fill, he cannot establish any damages.

Ms Perry was a solo practitioner, with a general practice in family law and real

estate. (Perry Dep., at 10). It is through her real estate work that she met the Plaintiff, handling

several deed transfers for him. (Perry Dep., at 12). Sometime in 2003, when Devore was in her

office, Ms. Perry mentioned that she might be interested in hiring an investigator. (Perry Dep., at

15). Devore expressed interest and told her that he had worked for the Police Department. 

(Perry Dep., at 15-16). Unfortunately, when Ms. Perry contacted the Philadelphia Police, she

was told by an unknown person that Devore had been fired. (Perry Dep., 22-24). Based on this

information, Ms. Perry sent Devore a letter informing him that she would not hire him. (Perry

Dep., at 21). 

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 4 of 17
1For purposes of disposition of the summary judgment motions, we will assume

that Ms. Perry contacted the Police Department after the settlement of the earlier case was

reached between the Plaintiff and the City. In his Declaration, Devore states that he “was

offered and applied for employment with Beverly Perry” on or about May, 2003. (Devore

Declaration, at ¶ 1). Ms. Perry stated at her deposition that at some point in 2003 she was

considering hiring an investigator. (Perry Dep., at 14). This Court did not dismiss the earlier

case pursuant to Local Rule of Civil Procedure 41.1(b) until June 25, 2003. However, Ms.

Perry’s letter informing Devore that she would not hire him was dated September 29, 2003. 

(Perry Dep., at 21-22). Thus, we will assume that Ms. Perry contacted the Police Department

after the settlement of the prior case had been reached.

5

If that were the totality of the evidence regarding the Perry position, we would be

more impressed with Plaintiff’s argument.1

 However, that is not the end of the story. During her

deposition, Ms. Perry stated that she was merely “considering” hiring an investigator when she

spoke with Devore. (Perry Dep., at 14). She had never advertised for an investigator. The topic

just came up during idle “chitchat,” when she mentioned that she was “interested . . . in maybe

hiring a private investigator.” (Perry Dep., at 15-16). Moreover, contrary to the Plaintiff’s

Declaration and assertions in his Motion that the position paid $35,000 a year, Ms. Perry stated

that she never discussed salary with Devore. (Perry Dep. 18). At the deposition, Ms. Perry

stated that it would not have been a full-time position. Rather, “in the event I needed a private

investigator I could get to them.” (Perry Dep., at 14). In fact, Ms. Perry stated that she had no

idea how many hours she would need an investigator because it would depend on her caseload. 

(Perry Dep., at 18). Finally, at her deposition, Ms. Perry stated that she never hired an

investigator. Rather, she is in the process of getting out of the practice of law. Thus she is

“phasing out” her law practice. (Perry Dep., at 11). 

Based on this additional deposition testimony, the Defendants argue that they are

entitled to judgment regarding the Perry employment because the Plaintiff has failed to establish

that any job actually existed, or, if it did, that he has any reasonable basis for damages. We

agree. 

Ms. Perry had no definite plans to hire an investigator, and, in fact, never did. By

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2 Plaintiff’s motion would have to be denied in any event. In order to prevail as to any of his

alleged lost job opportunities, Devore must not only prove that the Police Department’s

disclosures cost him the job, but also that those disclosures were part of defendants’ continuing

retaliation against Plaintiff for his protected activity, or were motivated by his race. If the jury

were to conclude that the disclosures were simply the result of a mistake by someone in the

Police Department, Devore could not succeed either on his Section 1983 claim or his Title

VII/PHRA discrimination claim.

6

Ms. Perry’s admission, the amount of time she would require the services of an investigator was

directly linked to her caseload. Since she decided to leave the practice of law, obviously the need

for such services vanished. The Plaintiff argues that these facts are irrelevant.

[I]t is of no importance that no other person was hired, or that the

position was abandoned due to Ms. Perry [sic] subsequent decision

to change careers. Ms. Perry may have equally decided to stay an

attorney and expanded her practice had she hired DeVore. One

never knows what is behind a door that is never opened. 

Plaintiff’s Response, at 42. 

It is commendable that the Plaintiff considers his investigatory skills of such a

caliber that his services could have saved Ms. Perry’s law practice. Although, like a contestant

on “Let’s Make a Deal,” Devore may have hoped that “today’s grand prize was behind Door

Number 1,” there is absolutely nothing to support his belief. His case cannot be based on a series

of “what ifs.” “The Third Circuit has held that mere inferences, conjecture, speculation or

suspicion are insufficient to establish a material fact upon which to base a denial of summary

judgment.” Huggins v. Teamsters Local 312, 585 F.Supp. 148, 150-51 (E.D. Pa. 1984)(citing

Robin Construction Co. v. United States, 345 F.2d 610 (3d Cir. 1965)). There is no evidence

upon which a jury could conclude that the Police Department’s disclosure caused damages to

Devore related to any potential job with Ms. Perry. Therefore, we will grant the Defendants’

Motion with respect to the Perry employment and deny the Plaintiff’s motion.2

3. Pennsylvania State Police

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 6 of 17
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The Plaintiff also contends that the Defendants sabotaged his candidacy for a

position as a Pennsylvania State Trooper. It is undisputed that the Philadelphia Police

Department was contacted and provided information to the Pennsylvania State Police regarding

the Plaintiff’s employment as a Philadelphia police officer. Again, the Defendants hang their

hats on causation, arguing that Devore had already disclosed the information they provided to the

Pennsylvania State Police, (“PSP”). Devore contends that the Defendants engaged in what we’ll

call “selective disclosure,” providing some, but not all, of the information regarding the

Plaintiff’s employment and separation from the Philadelphia Police Department. Because we

find that a jury could conclude from the evidence presently before the Court that the selective

disclosures did cause the PSP to reject Devore, we will deny the Defendants’ motion for

summary judgment.

When the PSP notified the Plaintiff that he was disqualified from employment,

they cited two reasons – a lack of veracity and a poor credit rating. See PSP letter, 11/10/03. In

their motion for summary judgment, the Defendants argue that because Devore had disclosed his

employment history in his application and Polygraph Screening Booklet, the information they

provided did not cause the PSP to reject Mr. Devore. Rather, the disclosures they made merely

confirmed the information previously provided by Devore. In response, the Plaintiff contends

that certain omissions in the Police Department’s disclosures caused the PSP to question

Devore’s veracity. Despite the Defendants’ argument that they did nothing but confirm

information already disclosed by Devore, the depositions and PSP file on the Plaintiff contain

sufficient evidence for a jury to conclude that Defendants’ selective disclosures were a

motivating factor in causing the PSP to reject his candidacy. 

Specifically, the Plaintiff contends that the City failed to inform the PSP that he

was wrongfully dismissed from the Philadelphia Police Department; that a jury returned a verdict

in his favor on the illegal discharge; and that he had been reinstated and retired from the City. 

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 7 of 17
3We note that, at no time, did this Court order Devore’s reinstatement. In fact, in

ruling on the post-verdict motions, we specifically did not order his reinstatement, electing

instead to award him front pay. Devore v. City of Philadelphia, No. 00-3598, at 20-21, February

20, 2004. 

8

(Plaintiff’s Response, at 11).3

 In his application, Devore stated that he had been “discharged

from the City of Philadelphia after being wrongfully accused of overtime theft.” (Application, at

15; City-DevPSP00095). In the Polygraph Screening Booklet, Devore stated that the reason for

his termination was that he was “accused of overtime theft - established in federal Court I was

wrongfully accused after reporting corruption.” (Polygraph Screening Booklet, at 5; CityDevPSP00138). In a follow-up letter, Devore explained the circumstances surrounding his

termination and the subsequent federal trial. In the letter, Devore stated, “I then filed a

complaint in federal Court. In which I was ordered to be reinstated and compensated for my pain

and suffering. [sic] After the verdict, I was reinstated and then I retired.” (Devore Letter, 8/8/03,

City-DevPSP00122). 

Trooper John Scott conducted the background investigation of Devore. As part

of his investigation, he contacted the Philadelphia Police Department. Kathy Nulty in the

Personnel/Human Resources department of the Philadelphia Police advised Trooper Scott that 

Devore was not eligible for rehire and was terminated. (Scott Dep., at 42-43). Trooper Scott

stated at his deposition that when he received this information from Ms. Nulty he believed 

Devore was lying about the nature of his separation with the Philadelphia Police Department. 

(Scott Dep., at 46-47, 78). 

Similarly, when Trooper Scott contacted the Internal Affairs Division of the

Philadelphia Police, he spoke with Lieutenant Fornier, who provided information from Devore’s

IAD file. (Scott Dep., at 15; City-DevPSP00168-69). Included in the information was the theft

of overtime, with a notation that the charge was sustained. City-DevPSP00169. However,

Lieutenant Fornier did inform Trooper Scott that Devore was later found not guilty of the

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 8 of 17
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charge. (Scott Dep., at 51). 

What is lacking from both Ms. Nulty’s information and Lieutenant Fornier’s

disclosures were the facts that (1) at the time they gave information to Trooper Scott, Devore

had successfully brought suit against the City for retaliation, and that (2) the City had entered a

settlement agreement with Devore, requiring them to reflect Devore as retired from the Police

Department and to refer any inquiries to the City Solicitor’s Office. So, in the words of Trooper

Scott, the two accounts of Devore’s separation from the Philadelphia Police did not “jive.”

(Scott Dep., at 78). 

The City also contends that the discovery that has been completed establishes that,

regardless of the information it provided regarding Devore’s employment as a Philadelphia

police officer, the PSP would still not have hired him. The Defendants focus on a number of

discrepancies in Devore’s application: his failure to list all his family members (CityDevPSP00031); his failure to include two years of education at Temple University (CityDevPSP00035); his inability to give full names for three references (City-DevPSP00056); 

Devore’s credit history including the repossession of his car and numerous liens and judgments

(City-DevPSP00064-65); numerous failures to respond to traffic citations; his failure to include a

prior residence (City-DevPSP00066); and Devore’s statement that he had no credit, charge, or

loan accounts when, in fact, the credit report revealed thirteen delinquent accounts (CityDevPSP00062-63). (Defendants’ Motion, at 12-13). The Defendants argue that these factors

would have disqualified him from the PSP regardless of the circumstances surrounding his

termination from the Philadelphia Police Department. In support of this argument, the

Defendants rely on the deposition testimony from the individuals on the candidate screening

panel that rejected Devore. See Deposition of Lt. Thomas McDaniel, at 18-21 (rejection based

on driving record, admission of sex on duty, forgetting his education at Temple, a prior

residence, and his credit history – “the Philly PD issue was more of a side show.”); Deposition of

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 9 of 17
4

In the polygraph prescreening, Devore admitted having sex while on duty -

having sex with his wife on his lunch break. (City-DevPSP00142). 

10

Lt. Frank David McCorkle, at 10-17 (dismissal by Philadelphia Police Department was one of

many issues disqualifying Devore from PSP); Deposition of Mark Grab, at 70 (“there were

enough other issues in this gentleman’s packet that even if he had walked on water while with the

Philadelphia PD, he would have not gotten through me as a viable cadet in our Academy”).

We believe that the ultimate reason for Devore’s ineligibility for the PSP remains

a material issue of fact, barring summary judgment. Although the PSP’s records support the

deficiencies and discrepancies noted above, there is also evidence supporting the Plaintiff’s claim

that the ultimate reason for his disqualification was his perceived lack of veracity arising from

the City’s selective disclosure of the circumstances regarding his separation from the police

force. 

As previously discussed, Trooper Scott stated that the information he received

from the Philadelphia Police Department caused him to believe Devore was lying. See infra, at

9. Moreover, after the first candidate screening panel reviewed Devore’s application package,

including Trooper Scott’s notes, they asked for more information regarding Devore’s

reinstatement and Devore’s admission that he had sex while on duty. (City-DevPSP00121,

204).4 Thus, we believe a jury could conclude that Devore’s other deficiencies noted by the City

in their Motion would still not have disqualified Plaintiff from employment with the PSP, had

they not also believed that he lied to them about the reasons for his separation from the City. 

Otherwise, there would have been no logical reason for the PSP to have requested additional

information about Devore’s separation.

In response to the request, Trooper Scott obtained a copy of the settlement

agreement from Devore and forwarded it to the Human Resources Department of the PSP. (CityDevPSP00204). A second candidate screening panel then reviewed Devore’s application and

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 10 of 17
5The Defendants also argue that the discovery related to an appeals panel that

conducted a final review also supports their assertion that Devore would have been disqualified

regardless of the issues relating to his separation from the Philadelphia Police Department. 

Based on the information provided, we again find that the evidence cuts both ways. See

Deposition of Sheryl L. Saxe-Dowling, at 53, 56-57, 115-16 (appeals panel considered sex on

duty inappropriate conduct; candidate never addressed credit report; reinstatement appeared to be

a misrepresentation); Deposition of Major Richard Stein, at 14 (totality of circumstances

disqualified Devore - omissions in application; bad credit history; questions of veracity in

application; unresolved questions regarding employment with Philadelphia Police Department);

Deposition of Richard Mooney, at 12-14 (employment history and bad credit were “serious

deficiencies,” although, putting aside anything having to do with the Philadelphia Police

Department, Mooney would have disqualified him anyway).

11

rejected his candidacy, based on, among other things, his lack of veracity. (City-DevPSP00117). 

Again, construing the evidence in the light most favorable to the non-moving party, the evidence

can support an argument that the veracity component of the rejection dealt squarely with the

circumstances surrounding Devore’s separation from the Philadelphia Police Department because

that is the additional evidence requested by the original screening panel.5 In any event, the

credibility of the PSP personnel who rejected Devore’s application must ultimately be made by

the jury, not the Court.

Finally, with respect to the prospective employment with the PSP, the City argues

that the waiver signed by the Plaintiff, that permitted the City to release his personnel

information to the PSP, absolves it from all liability. Employing the totality of the

circumstances test adopted by the Third Circuit in Cirillo v. Arco Chemical Co. 862 F.2d 448 (3d

Cir. 1988), Plaintiff’s counsel argues that the factors weigh heavily against the enforceability of

the waiver against the Philadelphia Police Department. 

In Cirillo, the Third Circuit stated that there were a number of factors to be

considered in determining the validity of a release:

(1) the clarity and specificity of the release language; (2) the

Plaintiff's education and business experience; (3) the amount of

time the Plaintiff had for deliberation of the release before signing

it; (4) whether Plaintiff knew or should have known of [his] rights

upon execution of the release before signing it; (5) whether

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 11 of 17
6The Defendants argue that Cirillo’s totality of the circumstances test is not

applicable to this case because the release at issue here was executed pre-employment rather than

post-employment, as it was in Cirillo. See Defendants’ Reply, at 9, n.8. Counsel has cited no

authority for this proposition, nor could the Court find any.

12

Plaintiff was encouraged to seek, or in fact received, the benefit of

counsel; (6) whether there was opportunity for negotiation of the

terms of the agreement; (7) whether the consideration given in

exchange for the waiver and accepted by the employee exceeds the

benefits to which the employee was already entitled to by law; (8)

the absence of fraud or undue influence.

Cirillo, at 451.6

 The lynchpin to the validity of the release is whether its execution was knowing

and voluntary. W.B. v. Matula, 67 F.3d 484, 497 (3d Cir. 1995)(citing Coventry v. United States

Steel Corp., 856 F.2d 514, 523-24 (3d Cir. 1988)). As you would expect, the Plaintiff and

Defendants in this case disagree about which side the Cirillo factors favor. Considering the

unique facts and history of this case, we believe many of the factors weigh heavily in Devore’s

favor. 

The Defendants rely heavily on the following language of the “Authorization to Obtain

Information,” 

I acknowledge, by signing this authorization, that I release all parties concerned

from any and all obligation or liability in the disclosure of the contents of such

files and the observations or opinions contained therein.

(City-DevPSP00082). The problem that the Court sees with the Defendants’ reliance is the

unique circumstances surrounding this case. The Authorization begins with the following

language:

I hereby authorize the release to the PENNSYLVANIA STATE POLICE, or its

representative, any and all personnel and/or personal information about me, which

is maintained by your institution/agency/company. This release pertains to

records maintained in your files with regard to: Employment History, Education,

Criminal Arrest and/or Conviction, Examination and/or Treatment for Diagnostic,

Medical, Surgical, Psychological or Psychiatric Reasons, and any other

information, including character, observations, or opinions.

(City-DevPSP00082). Pursuant to the “Settlement Agreement” that was in place at the time 

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 12 of 17
7The Defendants also argue that the release bars the Plaintiff’s claim against the

individual defendants for the release of expunged information (Count VI). Having found the

release was not knowingly executed, we decline to enter judgment on this claim, as well.

13

Devore executed this Authorization, the City of Philadelphia should not have had in its

possession any personnel records reflecting Devore’s discipline. See Settlement Agreement, at

¶¶ 4, 4(I), 4(ii), 4(iii). Thus, Devore could have reasonably believed that the details of his

separation from the police force would not have been divulged. Considering these facts, we do

not believe that Devore knew or understood the consequences of his signature. 

Similarly, we do not believe that the general language of the Authorization encompasses

the (well let’s face it) bizarre circumstances in this case. Although we obviously can not expect

the PSP to tailor its Authorization for each candidate, we also do not believe the language was

sufficient to put Devore on notice that it would shield the Philadelphia Police Department from

ignoring a settlement agreement into which it had entered. 

Lastly, we note that the Plaintiff was neither given the opportunity to, nor advised to seek

the advice of counsel before executing the waiver. The Defendants argue that such consultation

is not required because the Plaintiff did not have a right to employment. See Defendants’ Reply,

at 9-10. Again, considering the long history of this case, such consultation could have at least

alerted Devore to the possibility that his entire Internal Affairs file would be divulged. 

Although it is clear that there was consideration given for the Authorization, in the form

of Devore’s consideration for employment with the PSP, we find that the totality of the

circumstances does not establish that Devore knowingly waived his rights to sue for retaliation

arising from the City’s violation of a then-valid settlement agreement.7

Therefore, we will deny the Defendants’ motion with respect to the Plaintiff’s prospective

employment with the PSP.

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 13 of 17
8The alleged offer to which the Plaintiff and his counsel may be referring is

probably the one that was discussed during the settlement conference that occurred after the

City’s breach of the original settlement agreement. See infra, at 15.

9The statement, upon which Devore relies, arose in a deposition of the Police

Commissioner, taken in Bucceroni v. City of Philadelphia. Charles Bucceroni testified during

Devore’s trial.

14

B. Reinstatement with the Philadelphia Police Department

For the first time in this case, the Plaintiff presents a somewhat confusing

argument regarding reinstatement. He claims that Commissioner Johnson failed to reinstate him

to the police force because the Commissioner had been falsely advised that Devore did not want

to be reinstated. Thus, Devore now contends that he was denied reinstatement based on fraud. 

See Response, at 2, 49. It is difficult to discern whether Devore is referring to the issue of

reinstatement which faced the Court in disposing of the post-trial motions, or an alleged offer of

reinstatement made at a later date.8

 If Devore’s argument refers to the former, the claim is barred

by collateral estoppel. The Court ordered front pay in lieu of reinstatement. That decision was

made by the Court, not Commissioner Johnson, after careful consideration of several factors. 

See Devore v. City of Philadelphia, No. 00-3598, February 20, 2004. If Devore’s fraud claim is

based on an alleged offer of reinstatement allegedly made at a later date, see Plaintiff’s Response,

at 49, we shall dismiss the claim for a number of reasons.

First, the factual allegations underlying the reinstatement/fraud claim were never pleaded

in the Amended Complaint. Although Devore claims generally in the Amended Complaint that

he was denied police employment with the City of Philadelphia, see Amended Complaint, at ¶¶

2, 5, nowhere in the Complaint does the Plaintiff mention a secondary breach regarding

reinstatement. At this late date, we are not going to permit new found legal theories.

Moreover, the entire basis for this argument is a statement Commissioner Johnson made

during a deposition in a case unrelated to Devore’s.9

 During that deposition, Devore’s counsel

questioned the Commissioner about Devore’s trial. Commissioner Johnson maintained that he

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15

did not believe that Devore had been the victim of retaliation. Then, the following exchange

took place:

Q. Okay, Is that – that belief you have the reason why he wasn’t reinstated

after he prevailed in a jury award?

A. If I believed him then he never would have been transferred to, I think

– in other words, if I didn’t believe him or believe other things like that, I don’t

know why he didn’t come back to the Police Department. That is my

understanding, he didn’t want to come back. 

Q. What made you think that?

A. Look, if a person is ordered by the Court to come back, I have no

authority to stop them from coming back. He didn’t come back. I don’t know

why he didn’t come back.

See Bucceroni v. City of Philadelphia, Johnson Dep., at 65-66. That is the entire exchange

regarding Commissioner Johnson’s failure to reinstate Devore.

Keeping in mind that this deposition was taken in a matter completely unrelated to

Devore’s case, and the Commissioner was probably not expecting questions regarding Devore’s

case, it appears likely that Commissioner Johnson believed that the Court had ordered Devore

reinstated and Devore declined. Because this is the only “evidence” on which Devore relies to

support his argument that, through some fraud, the Commissioner failed to reinstate him, we

conclude that the claim is completely baseless.

Finally, we note that Devore and his counsel have mischaracterized the circumstances 

and statements made during a settlement conference with the Court that occurred after the breach

of the original settlement agreement by the City. In an effort to re-settle the case, the Court

conducted a settlement conference after being notified of the City’s breach. During that

conference, Devore’s possible reinstatement was discussed. The Plaintiff said he would be

willing to re-settle the case if the City were willing to reinstate him The Court then asked the

City if they would be willing to reinstate Devore to settle the case. The City representatives

present at the conference were willing to reinstate Devore, but they made it clear that they were

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 15 of 17
16

not the final decision makers. Unfortunately, these decision makers refused to reinstate the

Plaintiff. Contrary to both Devore’s assertion and his counsel’s assertion in their Declarations

attached to the Response, see Devore Declaration, at ¶ 9; Puricelli Declaration, at ¶ 3, the City

never formally offered to reinstate the Plaintiff. 

C. Defamation and Emotional Distress Claims

The Defendants argue that because there is no evidence that any of the individual

Defendants spoke directly to any of the three potential employers, Devore cannot establish the

elements for defamation or emotional distress. See Defendants’ Motion for Summary Judgment,

at 18-19 n.12. We believe that the Defendants’ attempts to seek judgment on these claims is

premature. At this point, based on the “staged” discovery that the Defendants requested, only

limited discovery has been permitted. Specifically, the Court limited discovery to documents and

testimony from the three potential employers to determine what information had been released

regarding Devore’s employment with the Philadelphia Police Department and what impact his

work history had on the decision of each not to hire him. There has been no discovery regarding

why the City failed to expunge Devore’s record. Such discovery is necessary to determine what

role, if any, each of the individual Defendants played in the actions or inaction of the

Philadelphia Police Department regarding Devore’s personnel records.

 Similarly, the Defendants argue in a footnote that truth is an absolute defense to

defamation and misrepresentation. See Defendants’ Summary Judgment Motion at 25, n.14. 

Since neither side has fully briefed the issue, we decline to rule on this argument at this time. 

An appropriate Order follows.

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 16 of 17
IN THE UNITED STATES DISTRICT Court

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN DEVORE : CIVIL ACTION

:

 v. :

:

CITY OF PHILADELPHIA, et al. : NO. 04-3030

O R D E R

AND NOW, this 7th day of September , 2005, upon consideration of the

cross-motions for summary judgment, and the response, and reply filed to each, IT IS HEREBY

ORDERED that the Plaintiff’s Motion for Summary Judgment is DENIED. IT IS FURTHER

ORDERED that the Defendant’s Motion for Summary Judgment is GRANTED IN PART and

DENIED IN PART. To the extent the Defendants sought judgment on the § 1983, Title VII, and

PHRA claims, their Motion is GRANTED with respect to prospective employment with Temple

University and Beverly Perry, and DENIED with respect to Plaintiff’s prospective employment

with the Pennsylvania State Police. With respect to Plaintiff’s previously un-pleaded claim

regarding reinstatement to the Philadelphia Police Department, the claim is DISMISSED. 

Finally, to the extent the Defendants sought judgment on the defamation, misrepresentation,

emotional distress claims, and the state law claim for releasing expunged records, the

Defendants’ Motion is DENIED without prejudice to refiling once discovery on these issues is

completed. 

BY THE Court:

 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE 

Case 2:04-cv-03030-SD Document 40 Filed 09/08/05 Page 17 of 17