Defendant’s Response in Opposition to Plaintiff’s Motion for 1

Partial Summary Judgment was filed November 29, 2006.

Plaintiff’s Reply to Defendant’s Motion for Summary Judgment was 2

filed December 4, 2006.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MATTHEW L. BARTAL, )

)

Plaintiff ) Civil Action

) No. 05-CV-00105

v. )

)

BOROUGH OF LAURELDALE, )

)

Defendant )

* * *

APPEARANCES:

BROOKE M. BOYER, ESQUIRE

On behalf of Plaintiff

CHRISTOPHER P. GERBER, ESQUIRE

On behalf of Defendant

* * *

O P I N I O N

JAMES KNOLL GARDNER, 

United States District Judge

This matter is before the court on Plaintiff’s Motion

for Partial Summary Judgment, which motion was filed November 15,

2006 and Defendant Borough of Laureldale’s Motion for Summary 1

Judgment, which motion was filed November 20, 2006. For the 2

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reasons expressed below, I grant defendant’s motion and deny

plaintiff’s motion and dismiss plaintiff’s three-count Complaint.

SUMMARY OF DECISION

The First Count of plaintiff’s Complaint is brought

pursuant to 42 U.S.C. § 1983. It is a civil action seeking money

damages for an alleged violation of the due process clause of the

Fourteenth Amendment to the United States Constitution. 

U.S. Const. amend. XIV § 1, cl. 2. More specifically, plaintiff

Matthew L. Bartal alleges that defendant Borough of Laureldale

wrongfully deprived him of his statutorily-conferred property

interest in his employment as a Borough Police Officer by

terminating his employment and by not hiring him as a fulltime

officer at the conclusion of his probationary period.

For the purposes of a Section 1983 action, the federal

court looks to state law to determine whether plaintiff has a

legitimate entitlement to, and hence a property interest in, his

government job. I granted defendant’s motion for summary

judgment and dismissed the First Court of plaintiff’s Complaint

because I concluded that plaintiff never successfully completed

his probationary period as police officer. This is because prior

to the close of plaintiff’s one-year probationary period,

defendant took administrative steps to remove him from service as

an active duty police officer, as it was entitled to do.

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In that regard, I concluded that if presented with the

question, the Supreme Court of Pennsylvania would hold that

defendant had a brief and reasonable period of time after the

close of plaintiff’s probationary period to evaluate his

performance and fitness for a tenured position and would extend

his probationary period briefly for this limited purpose.

The Second Count of plaintiff’s Complaint alleges a

cause of action for a violation of Pennsylvania’s Local Agency

Law. 2 Pa.C.S.A. §§ 105-106, 551-555, 751-754. The Third Count

is a cause of action for a violation of The Borough Code of

Pennsylvania. Act of February 1, 1966, P.L. (1965) 1656, 

No. 581, §§ 101-1199, as amended, 53 P.S. §§ 45101-46199.

I granted defendant’s motion for summary judgment and

dismissed the Second and Third Counts of plaintiff’s Complaint

because, having determined that all federal-question claims must

be dismissed, the remaining two claims sound in state law. I

concluded that there is no federal jurisdiction pursuant to 

28 U.S.C. § 1331. Accordingly, I declined to exercise

supplemental jurisdiction over the remaining claims.

Plaintiff’s motion for partial summary judgment seeks

an award of summary judgment solely on the First Count of

plaintiff’s Complaint and solely on the issue of defendant’s

liability. For the foregoing reasons, I deny plaintiff’s motion

in its entirety.

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JURISDICTION

Jurisdiction is based upon federal-question

jurisdiction pursuant to 28 U.S.C. § 1331. This court has

supplemental jurisdiction over the pendent state law claims

pursuant to 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because

the events giving rise to plaintiff’s claims allegedly occurred

in the Borough of Laureldale, Berks County, Pennsylvania, which

is located in this judicial district.

SCOPE OF REVIEW

In considering a motion for summary judgment, the court

must determine whether “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of

material fact and that the moving party is entitled to judgment

as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);

Federal Home Loan Mortgage Corporation v. Scottsdale Insurance

Company, 316 F.3d 431, 433 (3d Cir. 2003). Only facts that may

affect the outcome of a case are “material”. Moreover, all

reasonable inferences from the record are drawn in favor of the

non-movant. Anderson, supra.

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Although the movant has the initial burden of

demonstrating the absence of genuine issues of material fact, the

non-movant must then establish the existence of each element on

which it bears the burden of proof. Watson v. Eastman Kodak

Company, 235 F.3d 851, 858 (3d Cir. 2000). A plaintiff cannot

avert summary judgment with speculation or by resting on the

allegations in his pleadings, but rather must present competent

evidence from which a jury could reasonably find in his favor. 

Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252

(3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa.

1995).

FACTS

Upon consideration of the pleadings, depositions,

record papers and affidavits submitted in this action, and the

statements and counter-statements of undisputed material facts

filed by the parties in conjunction with their respective crossmotions for summary judgment, the relevant facts are as follows.

On April 15, 2003 plaintiff Matthew L. Bartal was hired

as a probationary fulltime police office by defendant Borough of

Lauderdale, Berks County, Pennsylvania. Pursuant to Pennsylvania

law, all original civil service appointments to a Borough police

force are subject to “a probationary period of not less than six

months, and not more than one year”. 53 P.S. § 46186. Moreover,

section 26 of the Collective Bargaining Agreement between the

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Borough of Laureldale and the Police Association provides that a

police officer’s probationary period continues for a period of

one year from the date an officer is appointed.

On May 5, 2003 plaintiff was charged with criminal

trespass, a felony, pursuant to 18 Pa.C.S.A § 3503(a)(1)(i);

summary criminal mischief pursuant to 18 Pa.C.S.A § 3503(a)(5);

disorderly conduct pursuant to 18 Pa.C.S.A § 5503(a); and two

counts of summary harassment pursuant to 18 Pa.C.S.A 

§ 2709(a)(1). The charges were filed in response to a report of

an attempted break-in at a private home in Lebanon County,

Pennsylvania, which occurred on April 17, 2003 when plaintiff was

off duty.

Defendant alleges that on June 23, 2003 plaintiff pled

guilty to disorderly conduct, harassment, and mischief resulting

in damage to property pursuant to 18 Pa.C.S.A. § 3304. Defendant

also alleges that plaintiff paid fines and restitution on those

charges. However, plaintiff maintains that he pled guilty only

to a single summary charge of criminal mischief, and that he did

so on the advice of the Borough of Laureldale. In addition to a

fine or fines, plaintiff also paid restitution for damage done to

the victim’s door in the amount of $274.54.

Plaintiff received a letter dated March 18, 2004 from

the President of the Borough Council of Laureldale informing

plaintiff that it was necessary to extend his probationary period

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past April 15, 2007. The letter stated that “due to the two (2)

felony trespass counts being re-filed by Lebanon County, PA

against you and your brother, it is necessary for Borough Council

to extend your probationary period past April 15, 2004.” The

letter also stated that the Borough Council has “been informed by

the Pennsylvania State Police” that plaintiff had been denied

access to the Commonwealth Law Enforcement Assistance Network

(“CLEAN”), the system by which police officers perform basic

checks of the criminal history and driving history of suspects. 

Plaintiff also received a letter dated April 14, 2004

(one day before the one-year anniversary of plaintiff’s

employment) from the Mayor of the Borough of Laureldale which

placed plaintiff on administrative leave without pay pending

further action by the Borough Council.

On April 19, 2004, the Borough Council of Laureldale

voted to terminate plaintiff’s employment. Plaintiff alleges he

did not receive any notice that this meeting would address his

employment as a police officer. By letter dated April 20, 2004,

the President of the Borough Council informed plaintiff that his

employment had been terminated on April 19, 2004 because the

“Borough Council had previously extended your probationary

status” and the “Council feels that [it] is in everyone’s best

interest to terminate your employment, although Borough Council

would reconsider your application.”

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On November 20, 2004, plaintiff’s attorney wrote a

letter to the Chairman of the Civil Service Commission requesting

a civil service hearing concerning plaintiff’s termination. By

letter dated December 27, 2004, the attorney for the Borough of

Laureldale responded to plaintiff’s hearing request and informed

plaintiff that the Borough would not authorize the Borough Civil

Service Commission to convene a Civil Service Hearing.

On January 10, 2005, plaintiff initiated this action by

filing a Complaint alleging that his civil rights had been

abrogated in violation of 42 U.S.C. § 1983, Pennsylvania’s Local

Agency Law, and The Borough Code of Pennsylvania.

DISCUSSION

First Count

The First Count of plaintiff’s Complaint is brought

pursuant to 42 U.S.C. § 1983. It alleges a violation of the due

process clause of the Fourteenth Amendment of the United States

Constitution. U.S Const. amend. XIV, § 1, cl. 2. More

specifically, plaintiff alleges that he was wrongfully deprived

of his statutorily-conferred property interest in his employment. 

This is a claimed violation of procedural due process.

In determining whether a claim under procedural due

process exists, the court applies a two-step analysis. First,

the court determines whether the asserted individual interests

are encompassed within the Fourteenth Amendment’s protections of

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life, liberty or property. Second, if the court determines

protected interests are implicated, the court next determines

whether the procedures available to protect the interests are

sufficiently protective so as to constitute due process of law. 

Robb v. City of Philadelphia, 733 F.3d 286, 292 (3d Cir. 1984).

For the purposes of procedural due process, property

interests are “created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law--rules or understandings that secure

certain benefits and that support claims of entitlement to those

benefits.” Board of Regents of State Colleges v. Roth, 

408 U.S. 564, 577, 92 S.Ct. 2701, 2709 33 L.Ed.2d 548, 561

(1972).

Whether a plaintiff has a legitimate entitlement to,

and hence a property interest in, his government job is a

question answered by state law. Wyatt v. Lower Saucon Township, 

No. 07-CV-306, 2007 WL 1461813, at *2 (E.D.Pa. May 16, 2007)

(Golden, J.) (citing Hill v. Borough of Kutztown, 455 F.3d 225,

234 (3d Cir. 2006) (Internal quotations omitted.))

In Pennsylvania, an at-will employee does not have a

legitimate entitlement to continued employment because he serves

solely at the pleasure of his employer. Chabal v. Reagan,

841 F.2d 1216, 1223 (3d Cir. 1988). A Pennsylvania public

employee has at-will status and does not have a property interest

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in his employment, unless there is express legislative language

to the contrary. Elmore v. Cleary, 399 F.3d 279, 283 (3d Cir.

2005); Scott v. Philadelphia Parking Authority, 402 Pa. 151,

154-155, 166 A.2d 278, 280-281 (1960).

 Pennsylvania law confers a property interest upon

police officers in their continued employment. Specifically, 

section 1190 of the Borough Code of Pennsylvania provides:

No person employed in any police or fire

force of any borough shall be suspended, removed

or reduced in rank except for the following

reasons:

(1) Physical or mental disability affecting

his ability to continue in service, in which

cases the person shall receive an honorable

discharge from service.

(2) Neglect or violation of any official 

duty.

(3) Violation of any law which provided that

such violation constitutes a misdemeanor or

felony.

(4) Inefficiency, neglect, intemperance,

immorality, disobedience of orders, or

conduct unbecoming an officer.

(5) Intoxication while on duty.

(6) Engaging or participating in conducting

of any political or election campaign

otherwise than to exercise his own right of

suffrage.

53 P.S. § 46190.

However, a police officer only secures this property

interest in his employment upon the successful completion of a

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probationary period. Section 1186 of the Borough Code of

Pennsylvania provides as follows regarding the probationary

period:

All original appointments to any

position in the police force or as paid operators

of fire apparatus shall be for a probationary

period of not less than six months, and not more

than one year, but during the probationary period

an appointee may be dismissed only for a cause

specified in section 1183 of this act. If at the

close of a probationary period the conduct [or]

fitness of the probationer has not been

satisfactory to the council, the probationer shall

be notified in writing that he will not receive a

permanent appointment. Thereupon, his appointment

shall cease; otherwise his retention shall be

equivalent to a permanent appointment.

53 P.S. § 46186 (Footnote omitted.)

 

Probationary police officers have neither a property

interest in their employment, nor an absolute right to a pre- or

post-termination hearing. 

The very notion of probationary

employment sets those employees apart from the

others, signaling that they are new, newly

transferred or newly promoted and that they must

prove themselves in the new position before being

considered permanently employed therein.... 

Implicit in the term probationary is that the

employee is being tested or evaluated on the job.

Olson v. Borough of Avalon, 811 A.2d 66, 71 (Pa. Commw. 2002)

(citing Upper Makefield Township v. Pennsylvania Labor Relations

Board, 562 Pa. 113, 117-118, 753 A.2d 803, 806 (2000) (Internal

citations omitted.))

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Pennsylvania courts have clearly held that if a police

officer is terminated during the probationary period, even on the

last day of the period, the police officer has failed to secure a

property interest. Olson, supra; Whyte v. City of Scranton, 

55 Pa.Commw. 353, 358, 423 A.2d 473, 475 (1980).

Plaintiff concedes that the police officer statutory

probationary period applied to his employment. However,

plaintiff contends that he secured a property interest and became

a tenured fulltime officer because he remained employed by

defendant as a police office after the probationary period had

lapsed.

Defendant disagrees and argues that plaintiff never

successfully completed his probationary period because he was

placed on administrative leave prior to the end of his probation

and was officially terminated four days later. Alternatively,

defendant contends that it lawfully extended plaintiff’s

probationary period and terminated him within the extended

period.

The parties agree that no reported case, either federal

or state, decided within the territorial boundaries of the United

States Court of Appeals for the Third Circuit has squarely

addressed whether the continued employment of a police officer

after his probationary period has lapsed automatically secures

tenured status concerning the related property interest.

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If the Supreme Court of Pennsylvania has not addressed

a precise issue, a prediction must be made, taking into

consideration “relevant state precedents, analogous decisions,

considered dicta, scholarly works, and any other reliable data

tending convincingly to show how the highest court in the state

would decide the issue at hand.” Nationwide Mutual Insurance

Company v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). “The

opinions of intermediate state courts are not to be disregarded

by a federal court unless it is convinced by other persuasive

data that the highest court in the state would decide otherwise.” 

Id. (Internal citation and quotations omitted.)

Plaintiff’s position finds some support in Pennsylvania

law. The Commonwealth Court of Pennsylvania has held that if a

probationary employee’s employment continues beyond the last day

of a probationary period, in the context of a promotion,

plaintiff’s continued employment by defendant secures a property

interest in the promotion. Whyte v. City of Scranton, 

55 Pa.Commw. 353, 358, 423 A.2d 473, 475 (1980). The same court

has noted that statutory time limits signal that the evaluation

period will not last forever before a decision is made to either

terminate the employee or retain him with full vesting of rights

and responsibilities. Thus, time limits seek to preclude a limbo

status. Olson, 811 A.2d at 72.

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However, defendant’s position is also supported by at

least one Pennsylvania trial judge. In the analogous case of

Salkeld v. Civil Service Commission, 6 D.&C.2d 535 (C.P. Delaware

1955), the court was interpreting the language of the First Class

Township Code, Act of June 24, 1931, P.L. 1206, art. VI, § 640,

as amended, 53 P.S. § 55640, but the statutory language being

interpreted was nearly identical to section 1186 of the Borough

Code. The trial court stated:

We do not agree with plaintiff that his

retention in the police force beyond the

probationary period of six months was ipso facto

equivalent to a permanent appointment.

...

The probationary period limits the probationer; he

has six months in which to demonstrate conduct or

fitness satisfactory to the township

commissioners. It is certain that the statute

should receive a reasonable construction. 

Clearly, the probationer has the entire

probationary period in which to make good. Just

as clearly, the township commissioners have a

reasonable time after the expiration of the

probationary period in which to reach a decision

with respect to the probationer’s conduct or

fitness. It is only after the lapse of this

reasonable time, in our opinion, that the

probationer’s retention shall be equivalent to a

permanent appointment. To expect the

commissioners to form their conclusion as to

conduct or fitness, and to notify the probationer

in the event of a decision adverse to him,

simultaneously with the closing of the

probationary period, is to exact the impossible. 

The law does not require such split second timing.

6 D.&C.2d at 538-539. 

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Moreover, at least one Pennsylvania appellate court has

held that a police officer’s probationary period may be extended. 

Smith v. Keim, 8 Pa.Commw. 610, 614, 303 A.2d 869, 871 (1973). 

In that case, a police officer’s performance had been found

unsatisfactory during the probationary period, and the officer

had requested and received a further opportunity to satisfy

performance standards. Although the Commonwealth Court

recognized that the “unique characteristics of this case” limit

the precedential effect of the result, the Court nevertheless

recognized that a police officer’s probationary period may be

extended.

I find the reasoning of the Commonwealth Court in 

Smith v. Keim and the Common Pleas Court in Salkeld to be both

persuasive and applicable to the within action. Accordingly, I

conclude that if presented with the question, the Supreme Court

of Pennsylvania would hold that defendant had a brief and

reasonable period of time after the close of plaintiff’s

probationary period as a police officer to evaluate his

performance and fitness for a tenured position and would briefly

extend his probationary period for this limited purpose. A

contrary result would effectively proscribe defendant from

reviewing the entire term of a police officer’s probationary

period.

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Although the Commonwealth Court stated in Whyte that a

police officer has a property interest in his promotion if the

employment continues beyond the last day of a probationary

period, Whyte is distinguishable in a number of ways. First, the

police officers in that case did not actually complete their

probationary period, and the court ultimately held that the

municipality properly terminated their employment on the last day

of the probationary period. Thus, the court’s statement

regarding the effect of the lapse of time on the probationary

period was not essential to the holding of the case.

Second, regarding the lapse of time, the Commonwealth

Court apparently assumed that the officers (former reserve

patrolmen) would be performing the duties of regular patrolmen

and paid as regular patrolmen as if they had secured their

promotions. These facts are markedly different from the within

case, where the officer was suspended without pay pending review

by the borough council. 

Finally, the Commonwealth Court held that the inclusion

of plaintiffs on the municipality’s payroll was insufficient to

fulfill the requirement of continued active service so as to

satisfy the probationary period. Thus, a single administrative

formality alone was insufficient to confer a change in employee

status.

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By contrast, the undisputed facts of the within matter

reveal that plaintiff never successfully completed his

probationary period. Prior to the close of plaintiff’s

probationary period, defendant took administrative steps to

remove him from service as an active duty officer. Defendant

formally removed plaintiff from active duty by placing him on

suspension without pay. While on suspension, plaintiff was

neither performing duties as an active police officer, nor was he

receiving police officer pay. Thus, plaintiff was not serving as

a tenured police officer at the conclusion of his probationary

period.

Moreover, plaintiff was informed that his service

during the probationary period was potentially unsatisfactory and

that he might not be fit for a tenured position. Defendant both

informed plaintiff that his probationary period would be extended

and placed him on administrative leave before the close of his

probationary period. Plaintiff had clear notice that his tenured

status was anything but secure. Plaintiff never faced a

situation where he was in employment limbo. Plaintiff’s status

as police officer was clearly and consistently communicated to

him. 

Furthermore, defendant acted swiftly upon the close of

the initial probationary period to terminate plaintiff’s

employment. Whether the actual date of termination is viewed as

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a date for review of plaintiff’s conduct and fitness for a

tenured position occurring after the close of plaintiff’s

probationary period or viewed as occurring during an extension to 

the probationary period, plaintiff failed to complete his

probationary period.

Accordingly, I dismiss the First Count of plaintiff’s

Complaint because I find that plaintiff never successfully

completed his probationary period as a police officer pursuant to

section 1186 of The Borough Code, 53 P.S. § 46186.

Second and Third Counts

The Second and Third Counts of plaintiff’s Complaint

allege pendent state law claims. The Second Count avers a cause

of action for a violation of Pennsylvania’s Local Agency Law. 

The Third Count is a cause of action for a violation of The

Borough Code of Pennsylvania.

Pursuant to a federal court’s supplemental

jurisdiction, I may entertain state law claims when they are so

related to federal claims within the court’s original

jurisdiction that they form a part of the same case or

controversy. 28 U.S.C. § 1367. However, if all federal claims

are dismissed before trial, the court should ordinarily dismiss

any remaining state law claims as well. Fortuna’s Cab Service v.

City of Camden, 269 F.Supp.2d 562, 566 (D.N.J. 2003).

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In this case, original jurisdiction was based on

federal-question jurisdiction pursuant to 28 U.S.C. § 1331. 

Having determined that all federal-question claims must be

dismissed, the remaining two claims sound in state law. 

Accordingly, I conclude that there is no federal-question

jurisdiction pursuant to 28 U.S.C. § 1331. Therefore, I decline

to exercise supplemental jurisdiction over the remaining claims. 

As a result, I dismiss the Second and Third Counts of plaintiff’s

Complaint.

Although I do not reach the merits of the Second Count

and Third Count of plaintiff’s Complaint, they appear of dubious

merit. Regarding the Second Count, plaintiff has failed to

identify a statute or case under Pennsylvania’s Local Agency Law

authorizing a private cause of action when plaintiff has not

established a property interest in his employment. See 

2 Pa.C.S.A. §§ 105-106, 551-554, 751-754. 

Regarding the Third Count, it appears that plaintiff’s

failure to complete his probationary period is fatal to his claim

for civil service protections under The Borough Code of

Pennsylvania, including a Civil Service Commission hearing and

appeal to the Court of Common Pleas prior to his termination. 

See 53 P.S. §§ 46190-46191. Moreover, plaintiff has also failed

to identify a statute or case authorizing money damages for

violations of The Borough Code.

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CONCLUSION

For all the foregoing reasons I grant defendant’s

motion for summary judgment, deny plaintiff’s motion for partial

summary judgment, and dismiss plaintiff’s Complaint.

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