Piecknick v. Comwlth. of PA ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-30-1994
Piecknick v. Comwlth. of PA, et al.
Precedential or Non-Precedential:
Docket 93-3002
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-3002
___________
FRED PIECKNICK; DOROTHY PIECKNICK and
DAN PIECKNICK, trading and doing
business as Piecknick Towing
v.
COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA STATE
POLICE; COLONEL GLENN WALP, individually and in his
capacity as Commander of Pennsylvania State Police;
CAPTAIN THOMAS BERRYHILL, individually and in his
capacity as Commander of Troop S; SERGEANT DUANE
DURHAM, individually and in his capacity
as an officer of Troop S
FERDINAND W. AND DOROTHY PIECKNICK
AND DAN PIECKNICK TRADING AND DOING
BUSINESS AS PIECKNICK TOWING,
Appellants
___________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 93-cv-00393)
___________
Argued: June 23, 1994
PRESENT: BECKER and HUTCHINSON, Circuit Judges,
and PADOVA, District Judge*
(Filed: September 30, 1994)
____________
_______________
* Hon. John R. Padova, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Peter M. Suwak, Esquire (Argued)
Pete's Surplus Building
P.O. Box #1
Washington, PA 15301
Attorney for Appellants
Ernest D. Preate, Jr., Esquire
Attorney General
Calvin R. Koons, Esquire
Senior Deputy Attorney General
John G. Knorr, III, Esquire
Chief Deputy Attorney General
Gloria A. Tischuk, Esquire (Argued)
Deputy Attorney General
Office of Attorney General of Pennsylvania
Fourth Floor
Manor Complex
564 Forbes Avenue
Pittsburgh, PA 15219
Attorneys for Appellees
____________
OPINION OF THE COURT
____________
HUTCHINSON, Circuit Judge.
Appellants, Fred, Dorothy and Dan Piecknick, operators
of Piecknick Towing (collectively "Piecknick"), appeal an order
of the United States District Court for the Western District of
Pennsylvania dismissing their complaint, pursuant to Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim upon
which relief can be granted. In their complaint, Piecknick
alleged that appellees, the Commonwealth of Pennsylvania, the
Pennsylvania State Police, and several officials of the State
Police1 (collectively the "State Police"), deprived them of due
1
. The officers sued in their official and individual capacities
were: Glen Walp, Commissioner of the Pennsylvania State Police;
process of law in violation of the Fourteenth Amendment when the
State Police awarded towing jobs on state highways to a towing
service which Piecknick alleges was not authorized to receive
those jobs under a State Police assigned zone towing policy.2
Piecknick's complaint sought damages pursuant to 42 U.S.C.A.
§ 1983 (West 1981).
We hold that the facts alleged in Piecknick's complaint
fail to set out a deprivation of a property or liberty interest
under the Fourteenth Amendment. Therefore, we will affirm the
order of the district court, but on different reasoning.
I. Factual & Procedural History
Count I of Piecknick's complaint asserted a civil
rights claim under section 1983 based upon a deprivation of due
process as guaranteed by the Fourteenth Amendment.3 It alleged
(..continued)
Captain Thomas Berryhill, of Troop S in Washington County where
Piecknick is located; and Sergeant Duane Durham, also with
Troop S.
2
. Piecknick also alleged a due process violation under the
Fifth Amendment. The district court dismissed that claim because
there was no federal government action. Piecknick does not
appeal the dismissal of this claim.
3
. Count II alleged a pendent state law claim for harassment and
intentional interference with business opportunity.
Specifically, it alleged that the State Police intentionally
called another towing company to service disabled vehicles
knowing Piecknick was entitled to such business under its policy
and practice, falsely asserted towing jobs had requirements
Piecknick did not meet in order to disqualify it, failed to
cooperate with Piecknick concerning traffic control at the scene,
and threatened to arrest Piecknick at the scene without
justification. We need only address Count I's section 1983
claim, as it provides the only possible basis for federal
jurisdiction.
that the State Police established a rotational policy and heavy
duty service list with specific zones (Zones 1-3) specifying
which towing company would be contacted to remove vehicles from
accident scenes on interstate highways in Washington County,
Pennsylvania. It also alleged that the State Police had
established a policy and practice of limiting the assignment of
towing services to a designated operator to only one zone.
Piecknick is located in Washington County and was assigned to
Zone 1. A map outlining the zones as they existed for the past
four years and designating the operators in each zone was
attached to the complaint.
The complaint alleged Insana Towing ("Insana"), a
competitor, was assigned to Zone 2 but has been receiving
assignments in Zone 1, the zone in which Piecknick claims it has
acquired property or liberty interests from the actions of the
State Police. According to the complaint, the State Police began
referring towing in Zone 1 to Insana after operating for several
years under a policy whereby Piecknick received all towing
business in Zone 1.4 Piecknick alleged that it was contrary to
past policy and regulations for the State Police to refuse to
refer all towing services in Zone 1 to Piecknick and instead to
refer towing services to another towing company located in and
4
. The facts show that another towing company, Burns, had
previously been assigned to Zone 1 along with Piecknick. Burns
was removed from the list when it went out of business and
Piecknick thereafter received all Zone 1 towing business for
several years. After this action was filed, Kolor Works Tow was
assigned to Zone 1 along with Piecknick. See Reply Brief of
Appellants at 5.
assigned to a different zone. Piecknick argues that the State
Police may not use Insana in Zone 1 because Insana was assigned
on the map exclusively to Zone 2. According to Piecknick, this
action unreasonably interfered with its right to carry on its
business and resulted in a 50%, or $40,000 per year, reduction in
its receipts.
The "regulation" that Piecknick relies upon is actually
a guideline setting forth procedures for state troopers to follow
in placing towing and wrecker calls for abandoned or disabled
cars on state highways. The guideline was distributed to local
towing services by State Police "[t]o advise service garages of
Pennsylvania State Police Policy in regard to wrecker calls in
accident cases and laws pertaining to same." Appendix ("App.")
at 15a. The guideline also states that "[t]he Trooper shall
contact the nearest available agency offering the required
service." Id.5 The guideline further states that the troop
policy is to "[c]all the nearest available [towing company] for
required towing service on a rotational basis." App. at 15a. It
states that troop personnel will not recommend a wrecker service
and will first ask if a particular wrecker is desired. Id. The
communications room supervisor, not the trooper on the road,
makes the decision on the nearest available towing service. Id.
5
. The phrase "nearest available" is taken from the Pennsylvania
State Police Field Regulations Manual. See Bolus v. Walp, No.
91-0678, slip op. at 2 (M.D. Pa. April 16, 1992), aff'd, 986 F.2d
1408 (3d Cir. 1993) (table). The State Police attached a copy of
the field regulation as Exhibit B to its brief in support of its
motion to dismiss. See Supplemental Brief of Appellees at 7 n.3.
at 16a. If the nearest available service is unable to
immediately respond or does not have the proper equipment to do
the job, the next nearest available service will be contacted.
Id. This part of the guideline reiterates that "[o]ur policy is
the nearest available to the scene on a rotational basis," id. at
17a (emphasis added and in original), and also states that if a
trooper at the scene makes an informed observation that a
particular on-scene wrecking service is unable to safely and
expediently see to the removal of a vehicle, he may request the
services of the next nearest available service capable of
handling the job. Id.
Piecknick claims that it is entitled to receive all
towing calls in Zone 1 because it is located closest to the state
highway.6 According to the State Police, its towing policy, as
expressed in the guideline, does not require exclusive use of
only one towing service in each zone. It reasons that this
appears from the fact that more than one towing service was
6
. At oral argument, Piecknick stated that it did not assert a
right to a monopoly in Zone 1; rather, it argued that its
constitutional claim arose from the mere use of a designated
Zone 2 towing service as one of the towing services in Zone 1.
However, an exhibit attached to its complaint states otherwise.
In a letter dated October 20, 1992 from Piecknick's counsel to
the State Police, attached as Exhibit C to the complaint,
Piecknick claimed a legal right "to receive all towing calls in
Towing Zone #1. The only exception would be if the firm was
unavailable or did not have the requisite equipment for the job."
App. at 20a (emphasis added). This exhibit claims a monopoly in
Zone 1. We look solely at the allegations in the complaint when
reviewing an order dismissing a complaint pursuant to
Rule 12(b)(6), and Exhibit C is a part of the complaint.
Therefore, we will consider both arguments.
assigned to each zone as well as from use of the phrase
"rotational basis" and the other provisions in the policy giving
a trooper discretion to call another towing service if he or she
believes one service may not be able to handle the job.
Piecknick's complaint alleged it complained in writing
to the State Police and was later informed that an investigation
had been undertaken "under the auspices of [one of the State
Police defendant appellees,] Captain Berryhill." Complaint at
¶ 14, App. at 11a. It never received any report of the
investigation's findings or response to its attorney's inquiry.
The complaint failed to allege that any individual State Police
defendants were involved in the decision to use Insana in Zone 1,
beyond a general allegation that using Insana on a rotational
basis was "ratified and approved by the named officers in a chain
of command." Complaint at ¶ 15, App. at 12a.
The State Police moved to dismiss the complaint on
several grounds, including lack of subject matter and personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and
(2) and failure to state a claim under Rule 12(b)(6). Piecknick
stipulated to the dismissal of the Pennsylvania State Police in
its corporate capacity as a state agency and clarified its
intention to limit its claims to those against individual
defendants.
In an order dated November 29, 1993, the district court
granted the State Police's motion and dismissed the complaint.
In an accompanying opinion, the court held that Piecknick had
failed to state a claim upon which relief could be granted
against any of the defendants. Opinion dated November 29, 1993
at 3. The court first concluded that the section 1983 claims
against the individual defendants in their official capacities
were barred by the Eleventh Amendment. Id. (citing Will v.
Michigan Dep't of State Police, 491 U.S. 58 (1989) ("neither a
State nor its officials acting in their official capacities are
persons under § 1983")). With respect to the individual
defendants' personal liability, the court recognized that
"[g]overnment officials performing discretionary functions
generally are shielded from liability for civil damages if their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. at 4 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). The court held that Piecknick's allegations as to the
personal liability of the individual defendants "fail to
sufficiently allege a violation of clearly established statutory
or constitutional rights of which a reasonable person would have
known." Id. Thus, it granted the State Police's motion to
dismiss the section 1983 claim under Rule 12(b)(6) as to the
individual defendants' personal liability. It also dismissed the
state law claims without prejudice for lack of subject matter
jurisdiction or, perhaps more properly, pendent or supplemental
jurisdiction. Piecknick filed a timely notice of appeal.
II. Jurisdiction & Standard of Review
The district court had subject matter jurisdiction
under 28 U.S.C.A. §§ 1331 and 1343 (West 1993). We have
jurisdiction over the appeal from the district court's final
order under 28 U.S.C.A. § 1291 (West 1993).7
We exercise plenary review over the district court's
dismissal of a complaint for failure to state a claim. Jordan v.
Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). We must accept as true all of the factual allegations in
the complaint as well as the reasonable inferences that can be
drawn from them, and dismissal is appropriate only if "no relief
could be granted under any set of facts which could be proved."
Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988); Jordan, 20
F.3d at 1261.
7
. Contrary to the State Police's assertion in its Supplemental
Brief, Pennhurst State School & Hospital v. Halderman, 465 U.S.
89 (1984) ("Pennhurst II") does not bar this action.
Pennhurst II held that a "federal suit against state officials on
the basis of state law contravenes the Eleventh Amendment when
. . . the relief sought . . . has an impact directly on the State
itself." Id. at 117; see Allegheny County Sanitary Auth. v. EPA,
732 F.2d 1167, 1173-74 (3d Cir. 1984). Pennhurst II did not
address the Eleventh Amendment's bar of suits against state
officials in federal court when the claims are based on
deprivation of federal constitutional or statutory rights.
Allegheny County, 732 F.2d at 1174 (citing Pennhurst II, 465 U.S.
at 104 n.13). The fact that the federal due process right hinges
upon a property or liberty interest created in part by a state
regulation or policy statement does not make the cause of action
any less federal in nature. See Hafer v. Melo, 112 S. Ct. 358,
365 (1991) (Eleventh Amendment does not bar federal section 1983
action against state officials in their individual capacity for
conduct undertaken as part of their state jobs and duties); see
also Scheuer v. Rhodes, 416 U.S. 232, 237 (1974) ("[S]ince Ex
parte Young, 209 U.S. 123 (1908), it has been settled that the
Eleventh Amendment provides no shield for a state official
confronted by a claim that he had deprived another of a federal
right under the color of state law."); Board of Regents v. Roth,
408 U.S. 564, 577 (1972) (property interests are created and
defined not by United States Constitution but by independent
source, such as state law).
III. Property or Liberty Interest Under the Fourteenth Amendment
A. Property Interest
To establish a section 1983 civil rights claim, a
plaintiff "must demonstrate that the conduct complained of was
committed by a person acting under state law and "'that the
conduct deprived him of rights, privileges or immunities secured
by the Constitution.'" Carter v. City of Philadelphia, 989 F.2d
117, 119 (3d Cir. 1993) (quotation omitted). Where a section
1983 plaintiff claims a procedural due process violation, his
claim is dependent upon the denial of a constitutionally
protected property or liberty interest. See U.S. Const.
amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 332 (1976);
Carter, 989 F.2d at 119-20.
"One alleging a property interest in a benefit
protected by due process must go beyond showing an
unsubstantiated expectation of the benefit." Carter, 989 F.2d at
120. "To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it." Board of Regents
v. Roth, 408 U.S. 564, 577 (1972). Such property interests are
"created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state
law." Id.
"A person's interest in a benefit is a 'property'
interest for due process purposes if there are such rules or
mutually explicit understandings that support his claim of
entitlement to the benefit[.]" Perry v. Sindermann, 408 U.S.
593, 601 (1972). "The plaintiff must demonstrate entitlement to
a property interest created expressly by state statute or
regulation or arising from government policy or a mutually
explicit understanding between a government employer and an
employee." Carter, 989 F.2d at 120. In this case, the existence
of a property right is an issue of state law. See Abercrombie v.
City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (tow
service owner's claim of property interest created by Oklahoma's
wrecker statute was issue of state law). Thus, we must examine
the State Police towing policy and any applicable statutes or
regulations to determine if a property right exists. Id.
The guideline that Piecknick calls a regulation is not
a regulation with any force of law. It was never promulgated in
accordance with the notice and hearing procedures required for
regulations. See Commonwealth Documents Law, 45 Pa. Cons. Stat.
Ann. §§ 501-907 (1991); Pa. Stat. Ann. tit. 45, §§ 1201-08
(1991); see also infra typescript at 25-26. It is no more than a
policy statement setting forth procedures that state troopers
should follow when handling towing calls for disabled or
abandoned vehicles on state highways. The guideline itself
states its purpose is merely "to advise service garages of
Pennsylvania State Police Policy in regard to wrecker calls in
accident cases and laws pertaining to same." App. at 15a. The
guideline uses the express term "policy" in stating "our policy
is the nearest available to the scene on a rotational basis."
Id. at 17. The guideline makes no commitments to any particular
service or zone; rather, it states only that the trooper will
call the nearest available service on a rotational basis.
We do not believe that this guideline creates an
enforceable contract between the towing services on the list and
the State Police or otherwise gives any particular towing service
a right to receive all the towing business along the highways
adjacent to or in any particular zone. It is too vague and
indefinite for that purpose and to enforce it as Piecknick asks
would be likely to interfere with traffic safety and mobility on
our state and interstate systems as disputes arose about a
particular towing company's proximity, availability and
capability to handle and respond to all the calls for towing
within a particular zone. We will, nevertheless, consider
whether the guideline was created to satisfy any other governing
state statute or regulation that could create a property
interest, or whether the guideline itself or the parties'
mutually explicit understanding based upon the State Police's
past practices have given Piecknick a property interest in the
towing business on highways near his place of business within
Zone 1. See Carter, 989 F.2d at 120.8
In Pritchett v. Alford, 973 F.2d 307, 317-18 (4th Cir.
1992), the court of appeals held that a wrecking service had a
8
. This is an issue of first impression for us. We declined to
address the issue in Bolus v. Walp, Civ. A. No. 91-0678 (M.D. Pa.
April 16, 1992) (mem. op.), aff'd without opinion, 986 F.2d 1408
(3d Cir. 1993).
constitutionally protected property right that prevented its
removal from the South Carolina State Highway Department's
wrecking service rotation list without prior notice or an
opportunity to be heard. In that case, however, state
regulations required maintenance of the list:
[T]he regulations required every highway
patrol district to establish wrecker zones
and "wrecker-rotation" lists for the zones,
S.C. Code Regs. § 63-600(A)(8), and directed
that the lists should be administered fairly
and in a manner designed to ensure that all
wrecker services on the list have an equal
opportunity to the towing business arising
from the rotation list. § 63-600(A)(10).
Id. at 317; see also Abercrombie, 896 F.2d at 1232 (operator of
wrecker service had property interest under Oklahoma law in equal
number of referrals by city where state statute provided that
list of wreckers must be maintained and that agency should use
nearest available wrecker on list on alternating basis); Gregg v.
Lawson, 732 F. Supp. 849, 853-54 (E.D. Tenn. 1989) (wrecker
service taken off state rotational wrecker list pursuant to order
prohibiting owners with felony record from being on list had
constitutionally protected property interest in remaining on list
because relevant agency regulations were more than mere internal
matter and set forth formal procedures for removal or suspension
from list to compel compliance with regulations). These cases
are distinguishable. In all of them, a state statute or
regulation gave a towing operator a property interest. Here,
there is no Pennsylvania statute or regulation governing towing
or wrecker services.9
Piecknick's reliance on Pataula Electric Membership
Corp. v. Whitworth, 951 F.2d 1238, 1242-43 (11th Cir.), cert.
denied, 113 S. Ct. 302 (1992), is similarly misplaced. There,
the court of appeals held that the lowest bidder may have a
property interest in an award of a contract if a state statute
and regulation requiring competitive bidding and awards were to
be made to the lowest bidder on contracts for state services.
The property interest arose from the state statute requiring
competitive bidding and a rule requiring that contracts be
awarded to the lowest bidder. Id. Here there is no such statute
or rule.
This case is also distinguishable from Stana v. School
District of City of Pittsburgh, 775 F.2d 122 (3d Cir. 1985).
There, a school district, pursuant to a state statute providing
that all teaching positions in the school district must be filled
from the three highest ranking people, had an established policy
concerning placement and ranking on a state-required eligibility
list. Id. at 124. Local school district policy provided that
names on the list would be returned for four years. This Court
9
. In addition, these cases from other jurisdictions all
involved the removal of wrecker services from a call list. The
towers removed from the list were effectively barred from
providing services in all towing situations where the police had
authority to direct removal of disabled vehicles. Piecknick has
not been removed from the towing list and is still one of two
towing services assigned to Zone 1. This distinction becomes
relevant to Piecknick's claim of a liberty interest, a subject we
discuss infra.
concluded that because remaining on the eligibility list was a
prerequisite to a teaching position, the school district had
created a constitutional property interest and a legitimate claim
of entitlement to remaining on the eligibility list. Id. at 125,
126-27; cf. Newark Branch, NAACP v. Town of Harrison, New Jersey,
940 F.2d 792, 810-12 (3d Cir. 1991) (fire fighter applicants who
were tested and added to hiring eligibility list for municipal
fire fighter position did not have protected property interest in
their ranking on list).
Because there is no governing state statute or
regulation in the case now before us, we next consider whether
the guideline itself, or the parties' mutual understanding, is
definite enough to create a property interest entitled to the
constitutional protection of due process. In O'Hare Truck
Service, Inc. v. City of Northlake, 843 F. Supp. 1231, 1233 (N.D.
Ill. 1994), the district court held that a towing service did not
have a property right in maintaining its name on an informal
rotation list because "the 'mutually explicit understandings'
that constitute property interests under the holding of Perry
cannot be based on the representations of government officials
who are not authorized to make such representations." Id. at
1233 (quotation and citation omitted); see also Durham v. Jones,
698 F.2d 1179, 1181 (11th Cir. 1983) (per curiam) (maintaining
name on sheriff's informal rotating list of wrecker services did
not amount to property interest because it was mere unilateral
expectation on wrecker owner's part). In O'Hare, the city's
governing body was the only agency authorized to make such
commitments and create such entitlement; hence, there could be no
property right unless it had reviewed and expressed its approval
of the practice of using the rotation list after observing the
applicable law. O'Hare, 843 F. Supp. at 1233, 1235. Here, as in
O'Hare, no state agency with statutory authority to do so has
approved or authorized the State Police's towing policy in this
case in the manner state law requires for the promulgation of a
binding regulation.
We believe White Plains Towing Corp. v. Patterson, 991
F.2d 1049 (2d Cir.), cert. denied, 114 S. Ct. 185 (1993), is
particularly instructive here. There the State Police divided an
eleven mile stretch of state highway into three zones and
assigned each zone to one towing company that would, when
summoned, provide service. Id. at 1053. These assignments gave
a single towing company an exclusive right to towing referrals in
its own zone.10 Id. Under that system, the State Police always
dispatched the towing company assigned to the zone unless a
disabled motorist requested another. The State Police assigned a
towing company to a zone for anywhere from two days to a year.
The parties stipulated that the towing dispatch system was not
specifically authorized by, or codified in, any state statute or
regulation and that participation in the program was not
contractual. Id.
10
. Here, more than one towing service is assigned to each zone.
Contrary to Piecknick's assertion, Piecknick never had an
exclusive right to all towing in Zone 1. See supra note 4.
The court of appeals held that the unilateral
expectations of the towing service were insufficient to create a
property interest. Id. at 1062. It did so based on a conclusion
that New York law presumes a contract for services which makes no
specific provision for duration is terminable at will. Thus, it
held that a state police assignment of a particular area of
highway to a towing company was not a property right because the
assignment system was not specifically authorized by any statute
or regulation but was merely an informal system that did not even
specify the duration of the assignment. Id.
In Lipinski v. Dietrich, 578 F. Supp. 235, 238 (N.D.
Ind. 1984), the court decided that even if a contract could be
implied between a towing service and a municipality to retain the
service's name on a list of towing services that police would
call on a rotating basis, the implied contract was unenforceable
under state law because it was impossible to ascertain the
contract's terms. In addition, the court concluded there was no
mutually explicit understanding between the parties because
neither the police nor the towing service had made any explicit
representations about the term of the list's continued existence
or the towing service's continuing availability, as required by
Roth and Perry. Id.
We believe the reasoning of White Plains Towing and
Lipinski is persuasive. Applying that reasoning to the facts, we
note that here Piecknick does not have an exclusive right to
provide towing in Zone 1 because other towing services may be
called if Piecknick is not available. Furthermore, the right to
tow in the zone is dependent on availability, and the towing
guideline itself does not set aside an exclusive territory for
any towing service. These facts weaken Piecknick's case because
they belie Piecknick's contention that a map setting forth zones
in which certain nearby operators are to be called on the basis
of availability permits an inference that a towing service listed
in one zone cannot operate in another.
We further note that the guideline's policy
specifically contemplates the use of other services on a
"rotational basis." See App. at 17a ("Our policy is the nearest
available on a rotational basis."). Whatever this ambiguous
phrase may mean, plainly it does not mean that Piecknick or
anyone else has an exclusive right to all the towing services the
State Police need to call on in Zone 1 or anywhere else. State
Police officers at the scene are permitted, in their discretion,
to decide whether any particular wrecking service they have
called is unable to safely and expeditiously remove the disabled
vehicle after the wrecker arrives on the scene and, in that case,
they may call the next nearest available towing service.
Not only does the guideline lack a prohibition against
using a towing service assigned to a zone other than the one
assigned to it on the map, but it fails to set any particular
term during which a towing service will continue to get
assignments within its primary zone. Pennsylvania law, like that
of New York, presumes that a contract for services having no
specific term is terminable at will. See, e.g., Booth v.
McDonnell Douglas Truck Servs., Inc., 585 A.2d 24, 27 (Pa.
Super.), alloc. denied, 597 A.2d 1150 (Pa. 1991); Darlington v.
General Elec., 504 A.2d 306, 309 (Pa. Super. 1986). Thus, as in
White Plains Towing, whatever rights Piecknick may have had are
terminable at will. See White Plains Towing, 991 F.2d at 1062;
Lipinski, 578 F. Supp. at 238. We recognize that Pennsylvania's
strong presumption in favor of employment at will has been
weakened in some cases involving the rights of public employees,
see 43 Pa. Stat. Ann. §§ 1422, 1423 (West 1991); see also Kraoja
v. Keypunch, Inc., 622 A.2d 355, 359-60 (Pa. Super. 1993), but we
do not believe those cases apply to situations such as this where
the state directs third parties facing an emergency need for a
service to an independent contractor. Piecknick has no rights as
an employee of the state because he is a mere supplier of
services. See San Bernardino Physicians' Servs. Medical Group v.
County of San Bernardino, 825 F.2d 1404, 1409-10 (9th Cir. 1987)
(professional corporation of physicians' four-year contracts,
containing automatic one year extension, with county-operated
medical center to provide emergency services which could be
terminated only "for cause," did not create property interest and
analogy to employment contracts failed because corporation was
not employee of state, but rather was mere supplier of services).
The guideline at issue here is not a regulation having
the force of law. The towing policy does not prohibit the State
Police from using Insana as a towing service in Zone 1 simply
because Insana may also service Zone 2. The State Police are not
required to continue towing assignments to an area designated in
the zone map for any particular period of time, and there was no
mutual understanding that Piecknick, as a Zone 1 operator, was
exclusively entitled to the Zone 1 towing. Piecknick cannot
point to any other governing state law or regulation that creates
a federally protected property interest guaranteeing it the right
to provide towing services in Zone 1, to the exclusion of other
towing services which may also be represented in other zones.
Accordingly, Piecknick has not alleged any property interest
entitled to protection under the Due Process Clause of the
Fourteenth Amendment.
B. Liberty Interest
The right to hold specific private employment and to
follow a chosen profession free from unreasonable governmental
interference comes within both the 'liberty' and 'property'
concepts of the Fifth and Fourteenth Amendments. Greene v.
McElroy, 360 U.S. 474, 492 (1959); see also Truax v. Raich, 239
U.S. 33, 41 (1915) ("the right to work for a living in the common
occupations of the community is of the very essence of the
personal freedom and opportunity that it was the purpose of the
[Fourteenth] Amendment to secure"); Cowan v. Corley, 814 F.2d
223, 227 (5th Cir. 1987).
"[T]he Constitution only protects this liberty from
state actions that threaten to deprive persons of the right to
pursue their chosen occupation. State actions that exclude a
person from one particular job are not actionable in suits . . .
brought directly under the due process clause." Bernard v.
United Township High Sch. Dist. No. 30, 5 F.3d 1090, 1092 (7th
Cir. 1993). "'It is the liberty to pursue a calling or
occupation, and not the right to a specific job, that is secured
by the Fourteenth Amendment.'" Id. (quoting Wroblewski v. City
of Washburn, 965 F.2d 452, 455 (7th Cir. 1992)).
In Cowan, the United States Court of Appeals for the
Fifth Circuit considered a case in which a wrecking company had
alleged a property or liberty interest because the local sheriff,
in disregard of a service call list, gave certain wrecker
companies preferential treatment in the assignment of calls.
After complaining to the sheriff, the plaintiff was expelled from
the wrecker association and was therefore barred from receiving
further county business. Although it concluded there was
probably no property interest, the court of appeals held that the
district court should have considered whether a liberty interest
existed. Cowan, 814 F.2d at 228. The court of appeals expressed
no opinion on the existence of any liberty interest but simply
reversed the district court's order granting dismissal of the
section 1983 complaint for failure to state a claim and remanded
it to consider, in the first instance, whether the complaint
alleged a protected liberty interest. Id. at 227-28.
There are at least two other district court cases on
point. In Nall v. Pitre, No. 88-965 (M.D. La. June 9, 1989), a
towing service filed a section 1983 claim against a sheriff after
he removed the tower's wrecking service from the rotating call
list without allowing the towing service an opportunity to be
heard. The Sheriff moved for summary judgment, arguing that the
towing service had not established a constitutionally protected
liberty or property interest. After considering evidence that
the towing company had been on the list for nine years,
evidencing an understanding sufficient to create a property
interest, the district court held there were questions of fact
about the intentions of the parties that precluded summary
judgment. The court recognized that no contract nor binding rule
or regulation accompanied the list, which was developed and used
without public notice, but it nevertheless determined there was a
genuine dispute of material fact from which an agreement could be
inferred. Id., slip op. at 2-3. Specifically, the court denied
the motion for summary judgment in order to give the plaintiff a
chance to prove the existence of a custom or practice from which
a mutual understanding sufficiently definite enough to create a
property interest could be inferred in the absence of official
rules or regulations governing towing. Applying Cowan, the court
also reasoned, in the absence of any property interest, the owner
of a towing service might have a liberty interest that would make
his complete removal from the rotation list an unreasonable
governmental interference with his right to pursue a livelihood.
Id. at 3. But see Stana, 775 F.2d at 125 n.1 (removal from
teacher eligibility list could implicate liberty interest in
following chosen profession but where plaintiff has not alleged
publication of the list, she cannot claim deprivation of liberty
interest).
Nall is distinguishable. Piecknick was not threatened
with a loss of its right to engage in the towing business. It
was not completely removed from the towing rotation call list,
and it remained in the Zone 1 rotation. The police merely
substituted Insana for a company with which Piecknick had
formerly shared Zone 1 rotation.
Cowan is also distinguishable. There, the towing
company became unable to compete for its fair share of the local
towing business because the sheriff gave preferential treatment
to plaintiff's competitors, and the towing business ultimately
lost all ability to compete by virtue of being summarily expelled
from the towing association that receives all county business.
See Cowan, 814 F.2d at 225.
In Bolus v. Walp, the second district court case, the
United States District Court for the Middle District of
Pennsylvania granted summary judgment to Pennsylvania State
Police officials in an action challenging a State Police towing
policy in Lackawanna County, Pennsylvania. There, the plaintiff,
Bolus Towing, alleged that the State Police failed to comply with
the provisions of the Pennsylvania State Police Field Regulations
Manual. The section Bolus Towing relied on provided that the
police should contact the nearest available towing service when
towing service is needed. After an accident on Interstate 81,
the driver of the disabled vehicle asked the state police to
contact the truck owner to authorize a towing service to tow the
vehicle. There was evidence that the owner of the disabled
vehicle requested a particular towing service to do the towing,
but the identity of the service the owner requested was not clear
and the vehicle's owner changed his mind in favor of Bolus Towing
after Bolus arrived on the scene and asked for the job. One of
the police officers on the scene refused to allow Bolus Towing to
carry out the job unless it compensated the other towing company
previously called. The court observed that the Pennsylvania
State Police Field Regulations were not promulgated in compliance
with the Commonwealth Documents Law, 45 Pa. Cons. Stat. Ann.
§§ 501, 1201-08 (1991), and thus the public was not invited to
hearings or to comment upon them. Relying on Chrysler Corp. v.
Brown, 441 U.S. 281, 301 (1979), the district court held that the
Field Regulations provided no substantive rights11 because they
were not promulgated pursuant to any mandate or delegation of
legislative authority. Bolus, slip op. at 6 (citing Chrysler
Corp., 441 U.S. at 301). The Field Regulations were merely
internal departmental regulations, or interpretive rules,
governing the police themselves. Id.
Here, as in Bolus, the towing policy in Washington
County was not promulgated in compliance with the Commonwealth
Documents Law. Thus, the State Police again argue that it does
not have the force of law needed to create a property or liberty
interest. Piecknick responds that compliance with the Documents
Law is not controlling in regard to Piecknick's liberty interest
claim because Piecknick's claim relies on an established custom
11
. The district court alternatively held that the State Police
policy was followed because it provided that where two towing
services are located within a reasonable distance of each other,
they may both be considered nearest, and which to call was a
matter of indifference so long as there was no evidence of
improper partiality. The incident which precipitated the
complaint involved in Bolus did not involve the regulations
Piecknick challenges because there the officer acted upon the
driver's request as to towing service. Id. at 7.
and practice concerning the division of tow work in Washington
County rather than the written policy itself. It argues the
custom is itself sufficient to support a due process claim.
The Commonwealth Documents Law distinguishes between a
"regulation" and a "statement of policy." It states that the
latter may consist of "[a]ny document, except . . . a regulation,
promulgated by an agency which sets forth substantive or
procedural personal or property rights, privileges, immunities,
duties, liabilities or obligations of the public or any part
thereof, and includes, without limiting the generality of the
foregoing, any document interpreting or implementing any statute
enforced or administered by such agency." 45 Pa. Cons. Stat.
Ann. § 501. An agency's policy statement must be promulgated in
accordance with the Commonwealth Documents Law if it is to
establish a standard of conduct with the force of law. Compare
Orbera v. Commonwealth, 497 A.2d 693, 695-96 (Pa. Commw. 1985)
with Pennsylvania Human Relations Comm'n v. Norristown Area Sch.
Dist., 374 A.2d 671, 679 (Pa. 1977). Because of our conclusion
that the Washington County towing guideline does not create any
"substantive or procedural personal or property rights," 45 Pa.
Cons. Stat. Ann. § 501, the Documents Law is indeed inapplicable.
Nevertheless, we agree with Piecknick that failure to follow the
Documents Law does not bar consideration of whether the towing
guideline or any policy, practice or custom that arose out of it
or out of a mutual understanding between the parties created a
property or liberty interest.
Ultimately, however, we believe Piecknick's argument
fails. Although Piecknick's complaint alleges that it was the
custom and practice of the State Police, over the past four
years, to use only Zone 1 designated operators to perform towing
in Zone 1, there is no allegation that this custom was to
continue for any term. Adding Insana, a Zone 2 designated
operator, to the operators who the police could call on to
perform towing services in Zone 1 is not an unreasonable
interference with Piecknick's right to pursue its chosen
occupation. This case is distinguishable from those in which a
person's license to pursue a chosen occupation is revoked or
substantially interfered with, see Herz v. Degnan, 648 F.2d 201
(3d Cir. 1981), or where there is harm to an individual's
reputation, see Chilingirian v. Boris, 882 F.2d 200 (6th Cir.
1989). See also Durham, 698 F.2d at 1181 (sheriff did not affect
towing company's right to operate towing service or ability to
perform towing for other law enforcement agencies where it
refused to place towing service on call list). It is the liberty
to pursue a particular calling or occupation and not the right to
a specific job that is protected by the Fourteenth Amendment.
See Bernard, 5 F.3d at 1092.
Accordingly, we hold that no liberty interest has been
alleged in this case.12
12
. Because we have concluded that no property or liberty
interest is implicated, we would not reach the issue of qualified
immunity even if the issue of qualified immunity could be
determined on a Rule 12(b)(6) motion.
IV.
For the foregoing reasons, we will affirm the district
court's order dismissing the complaint under Fed. R. Civ. P.
12(b)(6).13
13
. On appeal, Piecknick seeks to amend its complaint to
refashion the state law claim of interference with business
opportunity as a federal constitutional claim alleging "police
harassment". Brief of Appellant at 15 (citing Philadelphia
Yearly Meeting of the Religious Soc'y of Friends v. Tate, 519
F.2d 1335 (3d Cir. 1975) (police harassment can sustain cause of
action under section 1983) and San Jacinto Sav. and Loan v.
Kacal, 928 F.2d 697 (5th Cir. 1991) (per curiam) (same)). This
issue is waived. Piecknick never sought leave to amend its
complaint in the district court when it had the opportunity to do
so. Because Piecknick did not raise this issue in the district
court, we will refrain from considering it. See Newark Morning
Ledger Co. v. United States, 539 F.2d 929, 932-33 (3d Cir. 1976).