IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN KOLTONUK

Plaintiff,

v.

BOROUGH OF LAURELDALE, et al.,

Defendants.

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CIVIL ACTION

NO. 05-0106

Memorandum and Order

YOHN, J. July ___, 2006

Plaintiff John Koltonuk, a former police officer of the Borough of Laureldale (the

“Borough”), has brought a 42 U.S.C. § 1983 action charging the Borough with: 1) violating his

Fourteenth Amendment right to due process by terminating his employment without providing

him adequate pretermination and posttermination hearings; and 2) violating his First Amendment

right to petition for a redress of grievances by filing criminal charges against him in retaliation

for his pursuing posttermination remedies to challenge his discharge. Koltonuk has filed a

motion for partial summary judgment on the due process claim, and the Borough has filed a

motion for summary judgment on both claims. For the reasons that follow, the court will grant

judgment to the Borough and against Koltonuk on the due process claim, but will deny the

Borough’s motion on the retaliation claim. 

I. Factual Background

While employed by the Borough as a police officer, Koltonuk intermittently was required

to clean the garage area of Borough Hall where the police force parked its cars. (Koltonuk Dep.

55:10-15.) Several years ago, Koltonuk asked the manager of his local Turkey Hill Market

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 The court will hereinafter refer to this event as the “Turkey Hill incident.”

2

 Here, Mench refers to the mayor as “Manzella.” (Mench’s Dep. 13:17-18.) However,

when Koltonuk’s lawyer later wrote letters to various officials, he wrote one to the mayor, whom

he referred to as George Sobreski (Def.’s Ex. 7), and one to the council president, whom he

referred to as Dominic Manzella (Def.’s Ex. 8). At this point the discrepancy is not

consequential. 

2

(“Turkey Hill”), Jane McLean, if her store would provide him with garbage bags that he could

use to clean the garage. (Koltonuk Dep. 56:15-22.) McLean permitted Koltonuk to take some

bags that were normally reserved for store use from the store’s storage room. (Koltonuk Dep.

56:15-22.) Koltonuk continued to go to Turkey Hill for garbage bags for use in his subsequent

garage cleanings. (Koltonuk Dep. 60:4-8.) On each of these occasions Koltonuk asked for and

received permission from either McLean or a store clerk to take some bags. (Koltonuk Dep.

60:16-23.) 

On January 14, 2003, after having been instructed to clean the garage, Koltonuk returned

to Turkey Hill for trash bags. (Pl.’s Mot. for Summ. J. 4.) However, this time Koltonuk did not

ask the store clerk for permission to take the bags. (Koltonuk Dep. 70:8-12.) He walked back to

the storage area, put two or three bags in his coat, and walked out of the store. (Koltonuk Dep.

70:21-23, 73:16-24.) The clerk then called a police officer and reported that Koltonuk had stolen

trash bags.1 (Mench Dep. 12:18-13:8.)

After the chief of police, Edward Mench, received this report, he met with the Borough’s

solicitor, John Speicher, and the Borough’s mayor.2 (Mench Dep. 13:16-22, 16:18-24.) The

mayor and solicitor instructed Mench to prepare a letter of resignation for Koltonuk to sign. 

(Mench Dep. 16:21-22.)

On January 17, 2003, Mench, Officer Mark Sokolovich, and Koltonuk met at the police

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station. (Koltonuk Dep. 79:13-24, 81:8.) Mench informed Koltonuk that the meeting would be a

“Loudermill hearing.” (Koltonuk Dep. 81:12-15.) Mench told Koltonuk that there had been a

report that Koltonuk had stolen trash bags from the Turkey Hill Market. (Koltonuk Dep. 82:4-5.) 

Mench also showed Koltonuk the complaint that the clerk from Turkey Hill had filed. (Koltonuk

Dep. 89:19-24, 91:2-5.) Koltonuk admitted taking the garbage bags, but claimed that he had

permission to take them for Borough use. (Koltonuk Dep. 82:20-22.) Nonetheless, Mench

handed Koltonuk a letter of resignation that Sokolovich had drafted. (Koltonuk Dep. 85:22-24,

87:4-8.) Mench told Koltonuk that “we can make this go away, just sign this letter and resign.” 

(Koltonuk Dep. 87:11-12.) Mench further told Koltonuk that if he did not resign, he would be

suspended, “could/would” be fired, and that the matter would be turned over to the district

attorney’s office or the state police. (Koltonuk Dep. 91:21-23, 94:20-23.) Mench also told

Koltonuk that if he were fired, it could affect his pension. (Koltonuk Dep. 94:21.) As Koltonuk

considered the letter with pen in hand, Mench held Koltonuk’s hand on the table and told him to

make sure that he read and understood the letter before signing. (Mench Dep. 15:16-16:7.) 

Koltonuk did sign the letter that day. (Koltonuk Dep. 87:23-24.) 

After leaving the station, Koltonuk called his lawyer. (Def.’s Ex. 7.) On his lawyer’s

advice, Koltonuk then faxed a letter the same day to Mench and the Borough’s secretary/treasurer

withdrawing his resignation. (Def.’s Ex. 6.) Koltonuk claimed that he had been pressured into

signing the resignation letter. (Id.)

On January 27, 2003, Koltonuk’s lawyer mailed a letter to the mayor explaining that

Koltonuk had withdrawn his letter of resignation and inquiring when Koltonuk would be

scheduled for work. (Def.’s Ex. 7.) The mayor did not respond to this query. In a letter dated

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February 25, 2003, Koltonuk’s attorney asked the president of the Borough Council about the

status of Koltonuk’s employment and informed him that if he did not hear anything to the

contrary by March 15, 2003, he would assume that Koltonuk had been constructively discharged. 

(Def.’s Ex. 8.) Despite these letters, when the Borough Council met on March 10, 2003, it

considered Koltonuk’s situation only as follows:

President Manzella informed all council members that Officer Koltonuk resigned

effective January 17, 2003. He subsequently indicated he would like to get his job

back. Is there a motion to consider rehiring him? Since no council member made

a motion the resignation will stand.

(Appx. to Pl.’s Reply at 57.) By letter dated March 14, 2003, the Borough’s solicitor, Speicher,

informed Koltonuk’s lawyer that the Borough had considered Koltonuk’s desire to be rehired but

was not willing to rehire him. (Def.’s Ex. 9.) In a letter dated March 18, 2003, Koltonuk’s

lawyer argued to Speicher that when the Borough failed to recognize Koltonuk’s revocation of

his resignation, it had fired him, and he thus was entitled to a hearing before the Borough of

Laureldale Civil Service Commission (the “Commission”). (Def.’s Ex. 10.) Koltonuk’s lawyer

cited the Pennsylvania Commonwealth Court case Iorio v. Borough of Carnegie as support for

this proposition. (Id.) On March 20, 2003, Speicher responded to Koltonuk’s lawyer’s letter,

expressing the Borough’s position that Koltonuk had resigned from his position and therefore

was not entitled to a hearing in front of the Commission. (Def.’s Ex. 11.) However, in a May 2,

2003 letter, Speicher informed Koltonuk’s lawyer that he had reviewed Iorio and concluded that

Koltonuk was entitled to a hearing. (Def.’s Ex. 12.) By letter dated May 13, 2003, Koltonuk’s

lawyer informed the chairman of the Commission that Koltonuk desired to schedule a hearing. 

(Def.’s Ex. 15.) That letter explained that Koltonuk had signed a letter of resignation and then

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submitted a letter withdrawing his resignation, which the Borough refused to recognize. (Id.) 

In a letter dated August 1, 2003, Speicher described the Borough’s position to the

Commission’s solicitor. (Def.’s Ex. 16.) The letter stated, inter alia:

The Borough has terminated Mr. Koltonuk as a police officer for violation of his

official duty, violation of law, disobedience of orders, and conduct unbecoming an

officer. These charges all relate to the incident on January 14, 2003, at

approximately 10:00 p.m. at the Turkey Hill Mini Mart in Laureldale, when Mr.

Koltonuk, serving as a Laureldale police officer, illegally removed trash bags from

a storage room of the Turkey Hill Store, without having permission to do so.

(Def.’s Ex. 16.) The letter further explained that the Borough intended to present testimony

concerning these charges at the hearing that was scheduled for August 14, 2003. (Id.) This letter

implicitly recognized that plaintiff’s rescission of his resignation letter prior to its acceptance by

the Borough rendered his resignation letter void. 

By letter dated August 5, 2003, Koltonuk’s lawyer informed the Commission that

Koltonuk wished to withdraw his request for a hearing. (Def.’s Ex. 17.) The letter explained

that Koltonuk preferred to “proceed in another forum” that would be “better suited to resolve all

of the issues presented by this case.” (Id.) In deposition testimony, Koltonuk has described two

reasons for cancelling his posttermination hearing. First, he has stated that he feared that the

Borough would file criminal charges against him if he proceeded with the hearing. (Koltonuk

Dep. 106:22-107:1, 112:2, 10-11.) He attributed this belief alternatively to a “gut feeling” and to

advice from his lawyer. (Koltonuk Dep. 107:12-13, 134:11-12.) Second, he has testified that he

did not want to return to work under Mench, because he feared that the working conditions

would be poor. (Koltonuk Dep. 133:1-4, 282:18-20.)

On August 12, 2003, after consulting with Speicher, Sokolovich filed criminal charges

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alleging theft against Koltonuk (Def.’s Ex. 21) pursuant to 18 Pa. Cons. Stat. § 3921 (Def.’s Mot.

for Summ. J. 23). The charges were dismissed by the district justice following a preliminary

hearing on December 29, 2003. (Def.’s Ex. 19.) 

On January 10, 2005, Koltonuk filed a complaint against the Borough, Mench, and

Sokolovich. The complaint contained seven counts: 1) a due process claim against the Borough;

2) a retaliatory prosecution claim against the Borough; 3) a due process claim under the Local

Agency Law against the Borough; 4) a retaliatory prosecution claim against Mench; 5) a

malicious prosecution claim against Mench; 6) a due process claim against Mench; and 7) a due

process claim against Sokolovich. 

On July 19, 2005, the court denied the defendants’ motion to dismiss counts one, three,

five, and six. The order states that plaintiff conceded that “his due process claims are based on

the lack of a pre-termination hearing on January 17, 2003 and that he is not contending that there

was a lack of a post-termination hearing.” On November 14, 2005, Koltonuk stipulated that he

voluntarily discontinued all claims against Mench, and the court issued an order to that effect. 

Thus, counts four, five, and six were dismissed.

On December 15, 2005, the parties filed cross motions for summary judgment. The

Borough seeks judgment on all counts, while Koltonuk seeks judgment only on count one. 

Additionally, in replying to the Borough’s motion for summary judgment, Koltonuk agreed to

dismiss counts three and seven, which terminates the only claim against Sokolovich. (Pl.’s Reply

4.) Accordingly, the court now must rule upon only counts one and two, and the Borough is the

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 Because the Borough is the only remaining defendant, the court will use the singular

“defendant” (or simply, “Borough”) rather than the plural “defendants,” despite the fact that the

motion for summary judgment was submitted by defendants Sokolovich and the Borough. 

7

only remaining defendant.3

II. Standard of Review

A court may only grant a motion for summary judgement, “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. Pro. 56(c). “Facts that could alter the outcome are ‘material,’

and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the

position of the person with the burden of proof on the disputed issue is correct.” Ideal Dairy

Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). 

When a court evaluates a motion for summary judgment, “[t]he evidence of the

non-movant is to be believed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In

addition, “[a]ll justifiable inferences are to be drawn in [the non-movant's] favor.” Id. 

“Summary judgment may not be granted . . . if there is a disagreement over what inferences can

be reasonably drawn from the facts even if the facts are undisputed.” Ideal Dairy, 90 F.3d at 744

(citation omitted). However, “an inference based upon a speculation or conjecture does not

create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v.

Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990). The non-movant must show more

than “[t]he mere existence of a scintilla of evidence” for elements on which she bears the burden

of production. Anderson, 477 U.S. at 252. Thus, “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” 

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 The Third Circuit has ruled that a public employee can challenge his termination

through a procedural – but not substantive – due process claim. See Nicholas v. Pa. State Univ.,

227 F.3d 133, 142 (3d Cir. 2000) (ruling that tenured public employment is not a fundamental

property interest entitled to substantive due process protection). As such, the court will evaluate

Koltonuk’s claim as only alleging a violation of his right to procedural due process. 

5

 The parties agree that the Borough acted under color of state law in terminating

Koltonuk. 

8

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations

omitted).

III. Discussion

A. Procedural Due Process

Koltonuk’s first count alleges that the Borough terminated his employment without

providing him the due process guaranteed by the Fourteenth Amendment. He believes that both

his pretermination and posttermination hearings were constitutionally inadequate. The Borough,

on the other hand, argues that Koltonuk did receive sufficient process because the Borough

provided him with a pretermination hearing and scheduled a posttermination hearing, which

Koltonuk cancelled. Both parties move for summary judgment on this claim. The court

concludes that Koltonuk has failed to present sufficient evidence for a jury to find that his due

process rights were violated and will grant summary judgment to the Borough on this claim.4 

Koltonuk brings his due process claim pursuant to 42 U.S.C. § 1983, which “is not itself

a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” 

Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). To obtain relief under 42 U.S.C. § 1983, a

plaintiff must show that the defendants, acting under color of state law,5 violated the plaintiff's

federal constitutional or statutory rights. Sameric Corp. of Del., Inc. v. City of Philadelphia, 142

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F.3d 582, 590 (3d Cir. 1998). When a party claims to have been deprived of an interest without

procedural due process, the court must first consider whether the individual’s interest is

encompassed within the Fourteenth Amendment’s protection of life, liberty, or property. Alvin v.

Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). If the individual does have such a protected interest,

the court must then evaluate whether the procedures that the state actor provided accorded the

plaintiff with adequate process. Id. 

In this case, Koltonuk claims that his employment constitutes property under the

Fourteenth Amendment. To have a property interest in a job, a person must have a legitimate

entitlement to continued employment. Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). 

Property interests “‘are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law.’” Cleveland Bd. of Ed. v.

Loudermill, 470 U.S. 532 (1985) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,

577 (1972)). The Supreme Court has held that public employees who may be dismissed only for

cause have a property interest in their continued employment. See Gilbert v. Homar, 520 U.S.

924, 929 (1997). Koltonuk notes that pursuant to 53 Pa. Cons. Stat. § 46190, he could only be

removed from his position for one of five enumerated grounds. Accordingly, he did have a

property interest in his employment recognized by the Fourteenth Amendment, and the court

must consider whether he received adequate process in connection with his discharge.

The Supreme Court has held that “a public employee dismissable only for cause [is]

entitled to a very limited hearing prior to his termination, to be followed by a more

comprehensive post-termination hearing.” Gilbert, 520 U.S. at 929. Koltonuk challenges the

adequacy of both his pretermination and posttermination hearings.

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1. Pretermination Hearing

In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985), the Supreme

Court concluded that a public employee with a property interest in his job is entitled to a

pretermination hearing. However, “the pretermination ‘hearing,’ though necessary, need not be

elaborate.” Id. at 545. The hearing “need not definitively resolve the propriety of the discharge”;

rather, “[i]t should be an initial check against mistaken decisions – essentially, a determination of

whether there are reasonable grounds to believe that the charges against the employee are true

and support the proposed action.” Id. at 545-46. Thus, in the pretermination hearing the

employee is entitled to “oral or written notice of the charges against him, an explanation of the

employer's evidence, and an opportunity to present his side of the story.” Id. at 546.

The parties dispute whether Koltonuk’s pretermination hearing satisfied the requirements

of Loudermill. The Borough argues that the January 17, 2003 hearing, which Mench called a

Loudermill hearing, complied with that case’s requirements. In that hearing, Koltonuk was

apprised of the charges against him arising out of the Turkey Hill incident, allowed to see the

complaint from the clerk, permitted to respond to the charges, and told that he could be fired for

the offense. Koltonuk argues, on the other hand, that the Borough did not fire him because of the

Turkey Hill incident; it fired him because it did not credit his letter withdrawing his resignation. 

Thus, Koltonuk argues, because the pretermination hearing did not consider the timeliness of his

letter rescinding his resignation, the pretermination hearing was constitutionally inadequate. 

In order to evaluate the adequacy of the January 17, 2003 hearing, it is first necessary to

review the manner in which Koltonuk’s employment ended. While Koltonuk signed a

resignation letter on January 17, 2003, he faxed a letter withdrawing his resignation on the same

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 However, to the extent that Koltonuk argues that the Borough’s failure to follow its own

procedures amounted to a per se violation of his due process rights, the court rejects his

argument. See Kompare v. Stein, 801 F.2d 883, 888 (7th Cir. 1986) (stating “‘violation of state

law . . . , without more, is not a violation of the federal right to procedural due process.’”

(quoting Miller v. Carson, 563 F.2d 757, 760 n.7 (5th Cir. 1977))). 

11

day. However, the Borough failed to consider (or rejected) Koltonuk’s attempt to withdraw his

resignation on three distinct occasions: 1) upon receipt of Koltonuk’s revocation letter; 2) upon

receipt of Koltonuk’s lawyer’s letter to the mayor dated January 27, 2003, which explained that

Koltonuk had withdrawn his letter of resignation and asking when he should return to work; and

3) upon receipt of Koltonuk’s lawyer’s letter to the president of the Borough Council dated

February 25, 2003, asking about the status of Koltonuk’s employment. Despite being informed

on multiple occasions that Koltonuk had withdrawn his resignation, when the Borough Council

met on March 10, 2003, it treated Koltonuk’s letter as one seeking reinstatement. Since no

member of the council moved to reinstate Koltonuk, Council deemed the issue closed. 

The Borough’s failure to recognize Koltonuk’s revocation letter was contrary to

Pennsylvania law.6 In Borough of California v. Horner, 565 A.2d 1250, 1251 (Pa. Commw. Ct.

1989), the court held that “a resignation is not effective until it has been accepted by the

municipal body,” and therefore, “[r]esignations can be rescinded or withdrawn prior to the

acceptance by the governing body.” The Borough concedes that it did not accept Koltonuk’s

resignation before he revoked it; thus Koltonuk effectively revoked his resignation. In a

Pennsylvania case where a Borough refused to recognize an employee’s revocation of his

resignation letter and reinstate him, that action “caused [the employee’s] service to be

terminated.” Iorio v. Borough of Carnegie, 487 A.2d 53, 54 (Pa. Commw. Ct. 1985). Thus,

under Pennsylvania law, when the Borough ignored Koltonuk’s revocation letter and refused to

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allow him to return to work, it terminated him.

As noted, the Borough argues that it provided Koltonuk with adequate pretermination

process because it conducted a Loudermill hearing after the Turkey Hill incident. Koltonuk, on

the other hand, argues that he was entitled to a hearing concerning the timeliness of his rescission

letter. As explained below, the court concludes that the Borough accorded Koltonuk adequate

pretermination process. 

Koltonuk argues that the Loudermill hearing, during which Koltonuk was provided notice

of the charges concerning the Turkey Hill incident, allowed to read the complaint from the

Turkey Hill clerk, informed that the Borough considered this a serious offense and would

suspend and consider firing him, and allowed to present his side of the story, is only relevant to

the Turkey Hill incident. However, the Turkey Hill incident and the Borough’s refusal to honor

Koltonuk’s rescission of his resignation are not entirely isolated events; they are closely

interconnected and the latter flowed from the former. A review of the record shows that three

days after the Turkey Hill incident, the Borough pressed Koltonuk to resign because of that

incident. During the meeting in which Mench sought Koltonuk’s resignation, Mench (apparently

after consulting with the mayor and solicitor) expressed the Borough’s intention to take adverse

action against Koltonuk because of the Turkey Hill incident, stating that if Koltonuk did not

resign he would be suspended and could/would be fired. The Turkey Hill incident was the only

reason that the Borough identified as justification for these harsh disciplinary measures. After

hearing the Borough’s view of the Turkey Hill incident, Koltonuk signed a letter of resignation. 

Thus, at this point, the Borough had provided Koltonuk with his guaranteed due process

concerning the Turkey Hill incident. The Borough had provided Koltonuk notice of the charges

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against him, an explanation of the Borough’s evidence, and an opportunity to explain his side of

the story. See Loudermill, 470 U.S. at 546. Koltonuk took advantage of this opportunity, and

testified that he explained to Mench and Sokolovich that he believed that he had permission to

take the bags. He does not allege that he wished to present further explanation. In addition to

serving as a pretermination hearing concerning the Turkey Hill incident, the hearing also put

Koltonuk on notice that the Borough wanted his employment to end because of the incident,

which is the factual underpinning of the Borough’s subsequent refusal to allow Koltonuk to

return to work. See McDaniels v. Flick, 59 F.3d 446, 457 (3d Cir. 1995) (“We have held,

however, that pretermination notice of the charges and evidence against an employee need not be

in great detail as long as it allows the employee “the opportunity to determine what facts, if any,

within his knowledge might be presented in mitigation of or in denial of the charges.”). 

After the Loudermill hearing, Koltonuk faxed a letter rescinding his resignation; however,

the Borough did not respond. Koltonuk understood that the Borough’s failure to acknowledge

his letter meant that the Borough had terminated him; Koltonuk’s lawyer stated in a letter dated

February 25, 2003 that unless he heard otherwise, he would work under such an assumption. 

Throughout this correspondence, Koltonuk (through his lawyer) knew the Borough was relying

on the resignation letter, knew the contents of the letter which he wrote, and had the opportunity

to present his side of this issue. Indeed, he ultimately convinced the Borough that his

understanding of the legal significance of his letter of rescission was correct. A second

Loudermill hearing relating to the resignation and rescission letters would have been a pointless

act since Koltonuk was already aware of the charge, his employer’s evidence, and had an

opportunity to respond – which he had already done through his attorney. Moreover, it is clear

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that there would be “no underlying factual dispute to be hashed out” in such a hearing, Alvin v.

Suzuki, 227 F.3d 107, 121 (3d Cir. 2000); rather, the facts concerning the rescission and

resignation letters were undisputed and the Borough had decided to end Koltonuk’s employment,

and whether the letter of resignation was effective or not was of no consequence. See id. (stating

that Codd v. Velger, 429 U.S. 624 (1977) stands for the proposition that “a pre-termination

hearing [is] not required when there [is] no underlying factual dispute to be hashed out in the

hearing”). 

In this case, the Borough did offer a pretermination hearing on the underlying issue – the

Turkey Hill incident – that was clearly broad enough to provide Koltonuk notice of the charges

against him, an explanation of the Borough’s evidence, and an opportunity to present his side of

the story, see Loudermill, 470 U.S. at 546. Koltonuk also had the opportunity (which he took

advantage of) to supplement his responses through his lawyer, which allowed him to challenge

the Borough’s legal theory concerning the effect of his rescission letter. No purpose would have

been served by a second pretermination hearing since Koltonuk was already fully aware of the

issue. The Third Circuit has stated that “[t]he Constitution does not require perfection at every

stage of a process.” Alvin, 227 F.3d at 119. Here, the Borough provided Koltonuk with

pretermination process, which was not perfect, but was constitutionally adequate, particularly in

light of the availability of a posttermination hearing. 

While the availability of posttermination process does not excuse a failure to provide

pretermination process, Alvin, 227 F.3d at 120, the former is relevant to an evaluation of the

adequacy of the latter. In McDaniels, the Third Circuit considered whether an impartial

decisionmaker is required at the pretermination hearing, and began with the principle that “‘[t]he

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 Under 53 Pa. Cons. Stat. § 46191, an individual who is fired has the right to demand a

hearing by the Civil Service Commission. Further, § 46191 also states that the Commission’s

decision is appealable to the court of common pleas.

15

constitutional [procedural due process] violation actionable under § 1983 is not complete when

the deprivation occurs; it is not complete unless and until the State fails to provide due process.’”

59 F.3d at 460 (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)). Based on this

foundation, the court ruled that: 

[A] discharged employee cannot claim in federal court that he has been denied due

process because his pretermination hearing was held by a biased individual where he

has not taken advantage of his right to a post-deprivation hearing before an impartial

tribunal that can rectify any possible wrong committed by the initial decisionmaker.

Id. Similarly, in this case Koltonuk was entitled to a posttermination hearing,7 but, as has been

noted, failed to avail himself of that right. At the posttermination hearing, the Borough would

have been compelled to justify its decision to terminate Koltonuk, and Koltonuk could have

challenged both the Borough’s treatment of his rescission letter and its reliance on the Turkey

Hill incident. Thus, the Borough provided an extra layer of procedure that could have protected

Koltonuk’s rights and would have ensured that the procedural anomaly in this case (Koltonuk’s

rescission of his resignation) did not go unreviewed. 

Thus, the court concludes that Koltonuk has failed to produce sufficient evidence from

which a reasonable jury could find that his pretermination hearing was constitutionally

inadequate and violated his due process rights.

2. Posttermination Hearing

Koltonuk also challenges the adequacy of his posttermination hearing. He argues that

pursuing the posttermination hearing would have been futile because the Commission would not

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have had jurisdiction to consider his case. However, this argument is without merit. 

First of all, it seems that Koltonuk may be barred from challenging the adequacy of the

hearing by the doctrine of judicial estoppel. The doctrine of judicial estoppel “prevents a party

from asserting inconsistent claims in different legal proceedings.” Mintze v. Am. Fin. Servs.,

Inc., 434 F.3d 222, 232 (3d Cir. 2006). The Supreme Court has identified three general factors

that inform the decision of whether to apply judicial estoppel: 1) whether a party’s later position

is “‘clearly inconsistent’ with its earlier position”; 2) “whether the party has succeeded in

persuading a court to accept that party’s earlier position, so that judicial acceptance of an

inconsistent position in a later proceeding would create the perception that either the first or the

second court was misled”; and 3) “whether the party seeking to assert an inconsistent position

would derive an unfair advantage or impose an unfair detriment on the opposing party if not

estopped.” New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001). In this case, while

defending against the Borough’s motion to dismiss, Koltonuk represented that his due process

claim only challenged the adequacy of his pretermination hearing. The court accepted this

position and included it in its July 19, 2005 order, which states that Koltonuk conceded that “his

due process claims are based on the lack of a pre-termination hearing on January 17, 2003 and

that he is not contending that there was a lack of a post-termination hearing.” Based in part on

that representation, the court denied the Borough’s motion to dismiss. Now that the exigency of

the motion to dismiss has abated, however, Koltonuk seeks to change his position and challenge

the posttermination hearing. This likely would work to the detriment of the Borough, which

presumably has relied upon the court’s January 17, 2003 order and developed its case on the

assumption that the posttermination hearing was not at issue. It is not necessary to decide this

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 16 of 30
17

issue, however. 

Even if the court considers the argument on the merits, it is unavailing. Relying on Civil

Service Commission of Jim Thorpe v. Kuhn, 480 A.2d 1327 (Pa. Commw. Ct. 1984), Koltonuk

argues that because the Borough never formally fired him, the Commission would not have had

jurisdiction over his case. In Kuhn, a police officer was charged by his superiors with violating

department regulations, and in lieu of reaching its own determination about how to discipline the

officer, the Borough Council resolved to turn the matter over to the Civil Service Commission

Board for review and recommendation. Id. at 1328. The Commission reviewed the officer’s

conduct and determined that he should be terminated. Id. at 1328-29. The Commonwealth

Court reversed the Commission’s decision, ruling that “[i]t is the borough council [which] has

the primary responsibility and discretion for determining whether or not and how a police officer

should be disciplined,” id. at 1329 (internal quotation omitted), and that “[u]ntil such time as the

Borough Council takes final action, there is, by law, no adjudicable issue to be placed before the

Commission and any action it takes was correctly deemed a nullity by the common pleas court,”

id. 

In Koltonuk’s case, however, the Borough did not attempt to delegate its decisionmaking

authority to the Commission; it made a final decision, albeit due to its failure to act. Indeed,

Koltonuk’s situation is very similar to that of the plaintiff in Iorio v. Borough of Carnegie, 487

A.2d 53 (Pa. Commw. Ct. 1985). In Iorio, a patrolman sent a letter of resignation to the mayor

of the Borough, but then rescinded his resignation before the Borough had formally accepted the

resignation. Id. at 54. However, the Borough failed to recognize the patrolman’s revocation and

reinstate him. Id. The patrolman argued that because the Borough had not removed him for one

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18

of the reasons enumerated in 53 Pa. Cons. Stat. § 46190 and had not provided him with a

removal letter specifying the grounds for its refusal to reinstate him, he “had nothing to appeal to

the Civil Service Commission.” Id. at 54-55. The court rejected these arguments, ruling that: 1)

because the Borough refused to recognize the patrolman’s revocation letter and reinstate him, it

had removed him; and 2) the Commission had jurisdiction to consider all removals. Id. at 54. 

Koltonuk’s situation is in all relevant respects identical to that of the patrolman in Iorio, and

thus, Iorio’s conclusion controls here. Accordingly, the court concludes that the Commission

would have had jurisdiction to consider Koltonuk’s claims, and the Borough is entitled to

judgment on this claim as a matter of law.

In this case, Koltonuk initially requested a hearing on his rescission of his resignation

letter. The Borough admitted error on the subject, argued instead that it had fired Koltonuk for

the Turkey Hill incident, and agreed that Koltonuk was entitled to a posttermination hearing. 

Thus, Koltonuk had the opportunity for a full hearing before the Commission on both issues. 

The hearing did not actually occur only because Koltonuk withdrew his request for the hearing. 

Thus, no reasonable jury could find that Koltonuk’s due process right to a posttermination

hearing was violated. See Alvin, 227 F.3d at 116 (“If there is a process on the books that appears

to provide due process, the plaintiff cannot skip that process and use the federal courts as a

means to get back what he wants.”). 

Because the court concludes that no reasonable jury could find that Koltonuk’s due

process rights were violated by either his pretermination or posttermination hearings, the court

will grant the Borough’s motion for summary judgment on this claim. 

 B. Retaliation

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 18 of 30
19

Koltonuk’s second count alleges that the Borough filed criminal charges against him in

retaliation for his pursuit of posttermination remedies, in violation of his First Amendment rights. 

The Borough claims that it should be granted summary judgment on this claim for two reasons. 

First, the Borough claims that the decision to file criminal charges against Koltonuk was not part

of the custom or policy of the Borough, and accordingly, it cannot be liable under 42 U.S.C. §

1983. Second, the Borough argues that it had probable cause to charge Koltonuk, and the

existence of probable cause defeats a retaliatory prosecution claim. However, because the court

finds that there are genuine issues of material fact concerning whether a policymaker ordered that

criminal charges be filed against Koltonuk and whether the Borough had probable cause to file

the charges, the court will deny the Borough’s motion.

1. Borough Policy

In Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), the Supreme Court

determined that “Congress did intend municipalities and other local government units to be

included among those persons to whom § 1983 applies.” However, the Court also held that

“Congress did not intend municipalities to be held liable unless action pursuant to official

municipal policy of some nature caused a constitutional tort,” id. at 691; that is, “a municipality

cannot be held liable under § 1983 on a respondeat superior theory,” id. The Third Circuit has

explained that there are three ways in which a municipality may be liable for the torts of its

employees under § 1983: 

First, the municipality will be liable if its employee acted pursuant to a formal

government policy or a standard operating procedure long accepted within the

government entity, Jett v. Dallas Independent School District, 491 U.S. 701, 737

(1989); second, liability will attach when the individual has policy making authority

rendering his or her behavior an act of official government policy, Pembaur v. City

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 19 of 30
20

of Cincinnati, 475 U.S. 469, 480-81 (1986); third, the municipality will be liable if

an official with authority has ratified the unconstitutional actions of a subordinate,

rendering such behavior official for liability purposes,City of St. Louis v. Praprotnik,

485 U.S. 112, 127 (1988).

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005).

This case implicates the second method of establishing municipal liability. In Pembaur,

the Supreme Court explained that under Monell, “recovery from a municipality is limited to acts

that are, properly speaking, acts ‘of the municipality’ – that is, acts which the municipality has

officially sanctioned or ordered.” 475 U.S. at 480. The Court explained that “a government

frequently chooses a course of action tailored to a particular situation and not intended to control

decisions in later situations,” and therefore, “if the decision to adopt that particular course of

action is properly made by that government's authorized decisionmakers, it surely represents an

act of official government ‘policy’ as that term is commonly understood.” Id. at 481. Further,

“where action is directed by those who establish governmental policy, the municipality is equally

responsible whether that action is to be taken only once or to be taken repeatedly.” Id. 

Thus, since the decision to file criminal charges against Koltonuk was a single act, in

order for the Borough to be liable under § 1983 the decision must have been made by a Borough

policymaker. See Pembaur, 475 U.S. at 481. The Third Circuit has explained that “[t]he

question of who is a ‘policymaker’ is a question of state law.” Andrews v. City of Philadelphia,

895 F.2d 1469, 1481 (3d Cir. 1990). “In looking to state law, a court must determine which

official has final, unreviewable discretion to make a decision or take an action.” Id. 

The Borough argues that the decision to file a criminal charge against Koltonuk was made

entirely by Officer Sokolovich, who did not have policymaking authority with respect to bringing

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 20 of 30
8

 53 Pa. Cons. Stat. § 46117(a) describes the duties of the borough solicitor as follows:

The borough solicitor, when directed or requested so to do by council or the mayor,

shall prepare or approve such bonds, obligations, contracts, leases, conveyances,

ordinances and assurances to which the borough or any department thereof may be

a party; he shall commence and prosecute all actions brought by the borough for or

on account of any of the estates, rights, trusts, privileges, claims, or demands, as well

as defend all actions or suits against the borough, or any officer thereof, wherein or

whereby any of the estates, rights, privileges, trusts, ordinances, or accounts, of the

borough, or any department thereof, may be brought in question before any court in

21

criminal charges. Koltonuk, on the other hand, argues that Sokolovich was instructed to file the

charges by the Borough’s solicitor, John Speicher.

As a preliminary matter, it is clear that Koltonuk is correct that Speicher was involved in

the decision to file the criminal complaint. In Sokolovich’s affidavit he stated “[a]fter having

consulted with the Borough Solicitor and having considered all of the foregoing information, I

filed theft-related charges against Officer Koltonuk.” (Sokolovich Aff. ¶ 8.) Further, the police

chief, Edward Mench, testified that Sokolovich filed the complaint “[u]nder the direction of our

solicitor.” (Mench Dep. 20:10.) Thus, because a reasonable jury could find that Speicher was

involved in the decision, the fact that Sokolovich was not a policymaker is immaterial. Indeed,

because the Supreme Court focused on the individual who made the “decision to adopt that

particular course of action,” Pembaur, 475 U.S. at 481 (emphasis added), not the individual who

eventually implemented that course of action, the court will follow the chain of command to

determine who made the initial decision to file a criminal complaint. 

However, it does not appear that Speicher, as the Borough’s solicitor, was a policymaker

in this area. Under Pennsylvania law, a borough solicitor has control of the Borough’s legal

matters, see 53 Pa. Cons. Stat. § 46116; however, the solicitor may act only at the request of the

council or the mayor, see 53 Pa. Cons. Stat. § 46117(a).8 Indeed, the Pennsylvania Supreme

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 21 of 30
the Commonwealth; and shall do every professional act incident to the office which

he may be authorized or required to do by the council or the mayor. He shall,

whenever required, furnish the council, or committees thereof, the mayor, or the head

of department, with his opinion in writing upon any question of law which may be

submitted by any of them in their official capacities.

9

 This sentence seems to contradict Mench’s other testimony that he was in no way

involved in the decision to file the criminal complaint. (See Def.’s Ex. 22 at 22.) 

22

Court has explained that “the solicitor is responsible only to the appointing body, and may act

only pursuant to that body’s authorization. He owes no independent duties to the public, and

exercises none of the powers of sovereignty.” Ballou v. State Ethics Comm’n, 436 A.2d 186, 189

(Pa. 1981) (emphasis added).

Based on the fact that the solicitor lacks independent authority and derives all of his

power from the mayor or council, it does not appear that Speicher was a policymaker; rather, any

decision that he could make would be reviewable by the individual that requested him to act. See

Andrews, 895 F.2d at 1481 (stating that a policymaker is an individual with “final, unreviewable

discretion to make a decision or take an action”). However, for that very reason, a reasonable

jury could find that his communication to Sokolovich was ordered by an individual with

policymaking authority. Speicher would have been acting outside his authority if he

independently ordered Sokolovich to file a criminal complaint. Indeed, one portion of Mench’s

testimony, although ambiguous in its use of pronouns, appears to state that Speicher did act at the

behest of a higher authority. After being asked “[i]n your years as chief, were there any other

cases in which the solicitor initiated a criminal prosecution of somebody?” – Mench stated that

“[h]e was contacted by the Borough. I wanted to know what steps to take.9 He stated to the

Borough [at this point the testimony is interrupted].” (Mench Dep. 20:14-24.) Based on this

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 22 of 30
10 The mayor would be a policymaker with respect to bringing criminal charges. As the

Third Circuit has explained, “the Mayor of a Pennsylvania Borough is its chief law enforcement

officer.” Pennsylvania v. Porter, 659 F.2d 306, 310 (3d Cir. 1981). The mayor has “full charge

and control of the chief of police and the police force, and he shall direct the time during which,

the place where and the manner in which, the chief of police and the police force shall perform

their duties.” 53 Pa. Cons. Stat. § 46121. 

23

statement, a reasonable jury could find that some official from the Borough may have contacted

Speicher about charging Koltonuk, and Speicher provided advice to help effectuate that goal. 

This would be perfectly consistent with the solicitor’s role, as described in the statute and

caselaw. Additionally, it would be consistent with the practice that has existed throughout the

Koltonuk controversy: Speicher and the mayor ordered that Mench create a letter of resignation

for Koltonuk (Mench Dep. 16:18-19), and Speicher was the author of the letter first setting out

the Borough’s reasons for firing Koltonuk (Def.’s Ex. 16). While Speicher was often the

spokesperson of the Borough for legal matters, he was not necessarily the one making the

decisions. A reasonable jury could find that would be either the mayor10 or the council. Thus,

based on Mench’s statement, which the court interprets as meaning that the solicitor was

contacted regarding filing the criminal complaint by the “Borough”; the solicitor’s close

coordination with the mayor and the council on the letter of resignation and the formal

explanation of Koltonuk’s discharge; and the Pennsylvania law describing the solicitor’s duties,

the court concludes that this case presents a genuine issue of material fact concerning the

origination of the order that criminal charges be filed against Koltonuk. 

2. Probable Cause

The Borough also argues that in order to establish a retaliatory prosecution claim the

plaintiff must show that the defendant did not have probable cause to prosecute; it argues that the

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 23 of 30
11 As a general rule, if there is probable cause to believe that an individual committed an

offense, the decision to prosecute rests in the prosecutor’s discretion. Wayte v. United States,

470 U.S. 598, 607 (1985). Thus, to be precise, it was the prosecutor that prosecuted Koltonuk;

the Borough only filed charges against him. However, in Merkle, the Third Circuit, in analyzing

a malicious prosecution claim, explained that the “action of the School District in initiating the

criminal proceedings and pressing unfounded criminal charges against Merkle can render the

District liable for its major role in a malicious prosecution.” 211 F.3d at 794. Thus, the court

determined that the necessary inquiry was “whether the School Defendants had probable cause to

pursue Merkle’s prosecution.” Id. Similarly, in this case the court will evaluate whether the

Borough had probable cause to pursue Koltonuk’s prosecution. 

12 For purposes of this action, the Borough does not challenge the viability of Koltonuk’s

claim on any of these three grounds. 

24

Borough did have probable cause to charge Koltonuk with theft, and that the existence of

probable cause defeats Koltonuk’s claim. However, the court finds that based on Merkle v.

Upper Dublin School District, 211 F.3d 782 (3d Cir. 2000), a reasonable juror could find that the

Borough did not have probable cause to charge Koltonuk.11 

In general, a plaintiff can demonstrate First Amendment retaliation by showing: “(1) that

[the plaintiff] engaged in protected activity; (2) that the government responded with retaliation;

and (3) that the protected activity was the cause of the retaliation.”12 Estate of Smith v. Marasco,

318 F.3d 497, 512 (3d Cir. 2003). Additionally, while there once was a circuit split regarding

whether a lack of probable cause to prosecute is an element of retaliatory prosecution, the recent

Supreme Court case of Hartman v. Moore, No. 04-1495, 2006 WL 1082842, at *2 (U.S. April

26, 2006), has settled that debate, ruling that it is a necessary element. Thus, the court must

determine whether a reasonable jury could find that the Borough did not have probable cause to

charge Koltonuk.

“[P]robable cause is defined in terms and circumstances sufficient to warrant a prudent

man in believing that the suspect had committed or was committing a crime.” Merkle, 211 F.3d

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 24 of 30
25

at 789 (citing Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir. 1997)). The standard “requires

more than mere suspicion; however, it does not require that the [defendant] have evidence

sufficient to prove guilt beyond a reasonable doubt.” Orsatti v. N.J. State Police, 71 F.3d 480,

482-83 (3d Cir. 1995). Finally, probable cause “is a fluid concept – turning on the assessment of

probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of

legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). 

The court concludes that a reasonable jury could find that the Borough did not have

probable cause to file the criminal complaint against Koltonuk. The Third Circuit’s reasoning in

Merkle controls this determination. See Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782 (3d

Cir. 2000). In Merkle, an elementary school principal witnessed Merkle, an art teacher, load 144

unopened boxes of crayons into her car. Id. at 786. The principal asked Merkle why she was

taking the crayons, and Merkle explained that the crayons “weren’t useful in the curriculum,” and

that she was going to donate them to a community center. Id. The principal asked Merkle if she

had authorization to donate the crayons, and upon finding that she did not, ordered her to return

the crayons to the school. Id. Merkle complied. Id. The principal then called the

superintendent, who instructed her to report the incident to the police department (and also

reported the incident himself). Id. at 786-87. The next day a detective met with the principal,

and based on that conversation filed a criminal complaint against Merkle. Id. at 787. Merkle

was eventually arrested, charged with theft by taking pursuant to 18 Pa. Cons. Stat. § 3921, and

suspended without pay. Id. Merkle then filed suit, arguing, inter alia, that the school district

maliciously prosecuted her in violation of her Sixth Amendment rights and retaliated against her

for her outspoken support of multiculturalism in violation of her First Amendment rights. Id. at

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26

791. 

In reviewing Merkle’s claims, the Third Circuit viewed Merkle’s First Amendment claim

through the lens of malicious prosecution. See Merkle, 211 F.3d at 791 (stating that at common

law, a plaintiff alleging malicious prosecution must show “(1) the defendants initiated a criminal

proceeding; (2) the criminal proceeding ended in the plaintiff’s favor; (3) the proceeding was

initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice”). The court explained that based on the Supreme Court’s

decision in Albright v. Oliver, 510 U.S. 266 (1994), a “claim of malicious prosecution under

section 1983 cannot be based on substantive due process considerations, but instead must be

based on a provision of the Bill of Rights providing an explicit textual source of constitutional

protection.” Merkle, 211 F.3d at 792 (internal quotation omitted). The court further explained

that in Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998), the Third Circuit “read Albright

as standing for the proposition that a section 1983 malicious prosecution claim could be based on

a constitutional provision other than the Fourth Amendment, including the procedural component

of the Due Process Clause, so long as it was not based on substantive due process.” Merkle, 211

F.3d at 792. The court then stated that “Merkle predicates her constitutional malicious

prosecution claim on the First and Sixth Amendments.” Id. In reviewing Merkle’s First

Amendment claim, the court first analyzed whether Merkle had established First Amendment

retaliation, using a burden-shifting framework that included three steps: (1) “Merkle must

demonstrate that her speech was protected”; (2) “Merkle must show that her speech was a

motivating factor in the alleged retaliatory action”; and (3) “the School Defendants may defeat

Merkle's claim by establishing that it would have taken the same adverse action against Merkle

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 26 of 30
27

even in the absence of her protected speech.” Id. at 793. The court further explained that

“whether these defendants’ actions against Merkle were retaliatory is, for purposes of summary

judgment, influenced by the strength of Merkle’s claim against them for common law malicious

prosecution.” Id. at 794. 

Thus, as part of its discussion of Merkle’s retaliatory prosecution claim, the court

considered whether the school district had probable cause to prosecute Merkle. Id. at 794-96. 

The court discussed the requisite mental state for theft and quoted the Pennsylvania Supreme

Court’s statement that “‘[i]t has been repeatedly held that when one takes property under a claim

of right, even though mistaken, larceny is not committed.’” Id. at 796 (quoting Thomas v.

Kessler, 5 A.2d 187, 188 (Pa. 1939)). The court explained that when Merkle removed the

crayons from school, she did so under a claim of right: she believed that she had the authority to

dispose of the property. Id. Thus, the court concluded that “[a]n employer incurs no risk of a

suit for malicious prosecution when the employer has probable cause to believe that its employee

had committed a criminal violation. Here, however, the employer never had cause to find a

criminal violation, because it knew that Merkle acted without criminal intent.” Id. 

The facts of this case are almost identical to those of Merkle. Both Merkle and Koltonuk

were charged with theft by taking, and just as Merkle believed that she had the right to donate the

crayons, there is ample evidence that Koltonuk believed that he had the right to take trash bags

for police use. Also, both the school district in Merkle and the police officers in this case were

aware of those beliefs; indeed, Sokolovich, who actually filed the criminal complaint, and

Mench, the police chief, were in the room with Koltonuk during the Loudermill hearing when

Koltonuk first offered this explanation. Additionally, in Merkle the plaintiff was accused of

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 27 of 30
28

taking items of greater quantity (144 boxes of crayons in Merkle, compared to two or three

garbage bags here) and value (the school district in Merkle contended the crayons were worth

between $250 and $400, id. at 786 n.2, while the bags in this case were worth about five cents

each (Def.’s Ex. 19 at 37)). Further, it appears that the Turkey Hill store from which Merkle took

the trash bags often provided coffee to police officers free of charge (Def.’s Ex. 5) and had given

bags to Koltonuk in the past (Koltonuk Dep. 60:4-8), which provides support for Koltonuk’s

belief that he was permitted to take the bags. Finally, the police officers who charged Koltonuk,

as law enforcement officials, were better equipped than the school district in Merkle to appreciate

the requirement that a criminal act be accompanied by a specific state of mind. Thus, if a

reasonable jury could find that the school district in Merkle did not have probable cause to

prosecute Merkle, a reasonable jury could also find that the Borough in this case did not have

probable cause to prosecute Koltonuk. 

Accordingly, the court will deny the Borough’s motion for summary judgment on this

claim. 

An appropriate order follows.

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 28 of 30
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN KOLTONUK

Plaintiff,

v.

Borough OF LAURELDALE, et al.,

Defendants.

:

:

:

:

:

:

:

:

:

:

CIVIL ACTION

NO. 05-0106

Order

And now, this _____ day of July 2006, upon consideration of defendants Borough of

Laureldale and Mark Sokolovich’s motion for summary judgment (Document No. 24), plaintiff

John Koltonuk’s motion for partial summary judgment (Doc. No. 25), and both parties’

responses, IT IS HEREBY ORDERED that:

1. Koltonuk’s motion for partial summary judgment on his procedural due process claim

(count one) is DENIED.

2. The defendants’ motion for summary judgment on Koltonuk’s procedural due process

claim (count one) is GRANTED, and judgment is entered in favor of defendants and against

plaintiff on that claim.

3. The defendants’ motion for summary judgment on Koltonuk’s claim of retaliation

(count two) is DENIED.

4. The plaintiff having voluntarily discontinued counts three and seven, those counts are

DISMISSED with prejudice. 

5. Defendant Mark Sokolovich is DISMISSED as a party to this action.

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 29 of 30
6. Trial is SCHEDULED for November 20, 2006 in Courtroom 14-B at 10:00 A.M.

/s William H. Yohn Jr., Judge

__________________________

William H. Yohn Jr., Judge

Case 2:05-cv-00106-WY Document 31 Filed 07/18/06 Page 30 of 30