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w . v i l l a no v a . e du/thir dc ir c uit_2015/268NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 1375

_____________ STEPHEN T. SIMCIC, Appellant

v. PITTSBURGH WATER & S EWER AUTHORITY;

DANIEL DEASY ; SCOTT KUNKA; PATRICK DOWD

_____________ On Appeal from the United States District Court for the Western District of Pennsylvania ( D.C. Civil No. 2

- 13

- cv - 00802 ) District Judge: Honorable Nora B. Fischer Submitted Pursuant to Third Circuit LAR 34.1(a)

January 12 , 201 5 Before: McK EE , Chief Judge , HARDIMAN a nd SCIRICA , Circuit Judges

(Opinion filed : March 19, 2015 )

________ _ OPINION *

________ _

* T his disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

McKEE, Chief Judge Appell ant Stephen T. Simcic appeals the District Court’s grant of the motion to dismiss that was filed by Appellees Pittsburgh Water and Sewer Auth ority, Daniel Deasy, Scott Kunka, and Patrick Dowd (“ PWSA ”)

. Simcic claims the District Court erred in holding that he did not have a legitimate entitlement to his continued employment and in failing to apply equitable estoppel. Simcic also claims an abu se of discretion for the District Court’s assumption of supplemental jurisdiction and dismissal of his state law claim. For the reasons that follow, we will affirm. 1
I

. Simcic claims that there was a contract assuring him of his continued employment

. He is actually referring to the terms in the written Agreements between PWSA and Veolia Water Company North America

— Northeast, LLC (“the PWSA/Veolia Agreements”), in which th ose entities expressed their intent to keep the management team, including Simcic, in tact.

1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of a motion to dismiss unde r Federal Rule of Civil Procedure 12(b)(6). McGovern v. City of Phila , 554 F.3d 114, 115 (3d Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). We exercise plenary review over a district court’s interpretation of state law. Royal Ins. Co. of Am. v. KSI Trading Corp. , 563 F.3 d 68, 73 (3d Cir. 2009). Finally, we review the a district court’s decision not to exercise supplemental jurisdiction for abuse of discretion. Bright v. Westmoreland County , 443 F.3d 276, 286 (3d Cir. 2006) (citing DeAsencio v. Tyson Foods, Inc. , 342 F.3 d 301, 311 (3d Cir. 2003)).3

Simcic challenges the dismissal on three grounds: (1) that the District Court erred in holding that he did not have a legitimate entitlement to continued employment as a third

- party beneficiary to the PWSA/Veolia Agreements , (2) that the District Cou rt err ed in not finding that PWSA should be equitably e stopped from contending that it had no power to enter into the PW S A/Veolia Agreements , and (3) that the District Court abused its discretion in exercising jurisdiction over and dismissing his state law claim for breach of contract.
II

. As an initial matter, we recognize that Simcic’s theories on appeal w ere not mentioned in Simcic’s C omplaint. In the Complaint, Simcic alleged that he had a contract with PWSA which was breached and that damages resulted

. On appeal, however, Simcic claims that he is a third

- party beneficiary to the PW S A/Veolia Agreements and that PWSA should be e stopped from denying that it is owed a contractual obligation to Simcic on that basis . Neither of these contentions were alleg ed in Simcic’s Complaint. 2 Thus, we must first consider whether these newly alleged theories can be considered on appeal.

“ [ A ] different theory of recovery may not be urged on appeal where prejudice would result to the other party.” Universe Tankships, I nc. v. United States , 528 F.2d 73, 76 (3d Cir. 1975). The test is “whether [the opposing party] had a fair opportunity to defend and whether it could offer any additional evidence on the different theory.”

2 While not referenced in the Complaint, the estoppel theory was considered by the District Court.4

Jurinko v. Edwin L. Wiegand Co. , 477 F.2d 1038, 1045 (3d Cir. 1973), vacated on other grounds , 414 U.S. 970 (1973). In Jurinko , we considered a different theory on appeal because doing so did not prejudice the defendant. Id. at 1045

– 46. We find that no prejudice will befall PWSA either. Regardless o f the legal theory advanced by Simcic, the analysis and the outcome of this case remain the same. All theories are preempted by the finding that PWSA had no power to grant a contractual right to continued employment. As we have found no prejudice to PWSA , we will allow consideration of this theory on appeal. 3
A

. We first examine Simcic’s argument that, under 42 U.S.C. § 1983, he had a legitimate entitlement to continued employment as a third party beneficiary to the PWSA/Veolia Agreements

. At the d istric t court level, Simcic brought both a substantive due process claim and a procedural due process claim under 42 U.S.C. § 1983 . Simcic appears to concede th at the district c ourt was correct in dismissing the substantive due process claim, and thus we need o nly consider the procedural due process claim. 42 U.S.C. § 1983 provides a remedy for the deprivation of rights guaranteed by the Constitution, including procedural due process rights arising under the Fourteenth Amendment. Kaucher v. County of Bucks , 4 55 F.3d 4 18, 423 (3d Cir. 2006). Simcic

3 We note that this case is also similar to Jurinko in that our decision is to affirm the judgment of the district c ourt, suppo rting the conclusion that there is no prejudice to PWSA in consideration of the theory on appeal. Both the Supreme Court and this Court have found the ultimate decision to either reverse the district court decision or affirm on alternative grounds brought on by the different theory to be of relevance in determining whether to consider a different theory on appeal. Rondeau v. Mosinee Paper Corp. , 422 U.S. 49, 61 n.11 (1975) (refusing to consider a newly advanced argument “[b]ecau s e it would alter the judgm ent of the Court of Appeals . . . rather than providing an alternative grounds for affirming it”); Universe Tankships , 528 F.2d at 76 n.3 (finding prejudice to the opposing party and distinguishing Jurinko in that Jurinko affirmed the judgment of the distr ict court as opposed to reversing it).5

alleges that he was deprived of a property interest without procedural due process. Specifically, Simcic claims a legitimate entitlement to continued employment as a third party beneficiary to the PWSA/Veolia Agree ments and because he was made promises by
PWSA and was assured through public statements and oral communications that he would be returned to his Director of Finance and Business position

. However, we need not address these arguments because PWSA is not a uthorized to enter into contracts th a t
create an entitlement to continued employment. As the district c ourt correctly noted, “[t] o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. H e must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. ” Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 577 (1972).
“T enure in public employment . . . is, where it exists, a matter of legislative grace.” Scott v. Phila. Parking Auth

. , 166 A.2d 278, 281 (Pa. 1960). The law is well

established that “an at

- will employee does not have a legitimate entitlement to continued employment because she serves solely at the pleasure of her employer.” Elmore v. Cleary , 399 F.3d 279, 282 (3d Cir. 2005) (citing Chabal v. Reagan , 841 F.2d 1216, 1223 (3d Cir. 1988)). In its thorough and well

- reasoned Memorandum Order and Opinion, the district

c ourt carefully and completely explained the law in this are n a, provi ding that “[t]he presumption that public employees are at

- will in the absence of explicit, unambiguous language in the enabling legislation retains its vitality in Pennsylvania, and informs the threshold question in due process cases

— whether the Plaintiff has a protected interest in6

continued employment?” Simcic v. Pittsburgh Water , No. 13

- 0802, 2013 WL 6058463,
at *7 (W.D. Pa. Nov. 18, 2013).
B. Similarly, for the reasons explained by the district court, we need not discuss Simcic’s claim of equitable est oppe l

. “[E]quitable estoppel has been affirmatively rejected by [ the Supreme Court of Pennsylvania ] as an exception to the at

- will rule.” Stumpp v. Stroudsburg Mun. Auth. , 658 A.2d 333, 336 (Pa. 1995). The district c ourt found that Simcic’s claim was th us in conflict with the Pennsy lvania Supreme Court’s rulings. W e agree and will accordingly affirm. Lastly, we consi der Simcic’s argument that the district c ourt should not have assumed jurisdiction over the state law claim for breach of contract and acc ordingly should not have dismissed such claim. Under 28 U.S.C. § 1367(c), “[t]he district courts may decline to exercise supplemental jurisdictio n over a [state law] claim [ ] if

. . . the district court has dismissed all claims over which it has original jurisdiction . . . .” “[W]here the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fai rness to the parties provide an affirmative justification for doing so.” Borough of West Mifflin v. Lancaster , 45 F.3d 780, 788 (3d Cir. 1995). Thus, a bsent extraordinary circumstances, “jurisdiction [over claims based on state law] should be declined wh ere the federal claims are no longer viable.” Shaffer v. Bd. of Sch. Dirs. of7

Albert Gallatin Area Sch. Dist. , 730 F.2d 910, 912 (3d Cir. 1984) (citing Weaver v. Marine Bank , 683 F.2d 744, 746 (3d Cir. 1982) )

. The district c ourt found such extraordinary circumstances present in this case. The c ourt explained that “the federal question

- due process analysis necessarily disposes of the state law breach of contract claim . . . .” Simcic , 2013 WL 6058463, at *11. “Even if the state court were to find that a n employment contract existed . . . any such contract would be null and void ab initio , because this Court has found that [PWSA] has no power to enter into a binding employment contract that gives up its right to summarily discharge its employees.” Id.
I II

. In light of the above, we will affirm the District Court ’s decision substantially for the reasons set forth in the District Court’s Memorandum and Opinion adopting the Report and Recommendation of the Magistrate Judge without further elaboration.