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Versarge v. Township of Clinton N.J.

filed: February 2, 1993.


Appeal from the United States District Court for the District of New Jersey. D.C. Civil No. 90-257(CSF).

Before Sloviter, Chief Judge$0, Stapleton and Seitz, Circuit Judges$0.

Author: Seitz


SEITZ, Circuit Judge.

Paul Versarge ("plaintiff") brought this action after his expulsion as a member of a volunteer fire company. He appeals from the order of the district court granting summary judgment in favor of the Township of Clinton; Annandale Hose Company No. 1; and William Faust, III (collectively "defendants") and denying his cross-motion for summary judgment. Plaintiff pled violations of the First and Fourteenth Amendments and sought relief under 42 U.S.C. § 1983 (1988). He also pled related claims under the New Jersey Constitution and state law.

The district court had jurisdiction over this action to redress an alleged violation of plaintiff's federal constitutional rights pursuant to 28 U.S.C. § 1331 (1988) and 28 U.S.C. § 1343(a)(3) (1988). It had supplemental jurisdiction over the state law claims under 28 U.S.C.A. § 1367 (a) (West Supp. 1992). We have jurisdiction over this appeal from a final order of the district court pursuant to 28 U.S.C. § 1291 (1988).

On this appeal from a grant of summary judgment, "the non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). In addition, "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Id. Our review is plenary. Id. We turn to the unchallenged facts underlying plaintiff's claims. We also identify material facts that are in dispute.


The defendant Annandale Hose Company No. 1 ("Hose Company") is a volunteer fire department organized as a not-for-profit corporation serving residents of the defendant Township of Clinton. Plaintiff became a member of the Hose Company in March of 1978 and continued his membership until his expulsion. From 1984 through 1988, plaintiff also served as Director of Community Issues for the Deer Meadow Homeowners Association ("Homeowners Association").

In 1988, in his capacity as a director of the Homeowners Association, plaintiff petitioned the Mayor and Township Council of Clinton to close a street, Moebus Place, to traffic. In April of 1988, the Mayor and Council requested that defendant Faust, who was then Fire Chief, advise them of the Hose Company's official position on the street-closure issue. In response, Faust wrote a letter on behalf of the Hose Company opposing the closure of Moebus Place. Faust's letter asserted that closing Moebus Place to traffic would create an unsafe condition by making it more difficult for emergency vehicles to respond to emergencies in Deer Meadow.

On the morning of April 28, 1988, plaintiff telephoned Faust at his place of business to express plaintiff's strong disagreement with the position on the street-closure issue taken in Faust's letter. Faust declined to discuss the matter at that time. Approximately one hour later, plaintiff telephoned Faust at work a second time to discuss the matter. When making that second telephone call plaintiff realized, based upon Faust's telephone exchange, that Faust did not work within the Township of Clinton. Plaintiff, who knew that Faust drove a Township-owned vehicle to work, then told Faust that he should not be driving a vehicle assigned to the Hose Company to a work site outside the area served by the Hose Company. When Faust disagreed with plaintiff's position on the use of the vehicle, plaintiff told Faust that he would notify Township officials about Faust's use of the vehicle.

Plaintiff and Faust disagree about what else, if anything, was said during the second phone call. Specifically, Faust claims that plaintiff threatened to "get" him. Plaintiff denies ever having threatened Faust. It is not disputed, however, that at 9:30 a.m. that morning Faust telephoned the Clinton Township Police Department to report that plaintiff had threatened him during a phone conversation. That same day, plaintiff wrote a letter to the Mayor and Council of the Township of Clinton protesting Faust's use of the Township-owned vehicle assigned to the Hose Company.

A few days later, plaintiff wrote a second letter to the Mayor and Council to inform them that remodeling and electrical work had been performed at the firehouse without first obtaining proper building or electrical permits. On that same date, plaintiff also contacted Faust's supervisor at the Continental Insurance Company and informed him that furniture bearing the insurance company's name was being used at the firehouse. Plaintiff also telephoned the police and inspectors for the United States Postal Service to report that a canvas mail bag was being used to store the Hose Company's baseball equipment. Faust also asserts that, on that same day, plaintiff came to the firehouse and threatened him saying: "You won't always be with your friends, some day you'll be alone."

One week later, plaintiff reported to the police that "he had been confidentially informed that there [was] the distinct probability" that furniture at the firehouse had been stolen from the Continental Insurance Company. The next day, plaintiff wrote a third letter to the Mayor and Council detailing his disagreement with the Hose Company's position on the street-closure issue. Plaintiff asserted that Faust's letter on behalf of the Hose Company was "riddled with supposition & error" and expressed his "hope for the sake of all of Clinton Twp. that . . . Faust's 'letter of cheap excuses ' [did] not exemplify the leadership & quality of the [Hose Company]."

In early May, plaintiff was informally advised by persons employed at Clinton Town Hall that the other members of the Hose Company were about to expel him. Plaintiff contacted several Hose Company members and attempted, unsuccessfully, to find out the reasons for his anticipated expulsion. During that same time frame, twenty-one members of the Hose Company signed an "Application for Removal or Expulsion" of plaintiff. The application stated: "This charge is brought against you for conduct unbecoming a member, by threating [sic] the Chief of the Fire Department and also devulging [sic] transactions of the Company to the Mayor and Council." Plaintiff was not sent a copy of this Application.

On May 25, 1988, plaintiff received a letter from the Hose Company stating that an application for his expulsion had been signed by members of the company pursuant to Article X of the Hose Company's constitution. The letter also stated that the application for expulsion would be discussed and voted upon at the regular monthly membership meeting on June 1, 1988. The letter did not state the charges against plaintiff.

When he arrived at the June 1st meeting, plaintiff was orally informed that his expulsion was sought for two reasons. First, that he had threatened Chief Faust during an April 28, 1988 phone conversation. Second, that he had disclosed company business by reporting to the Mayor and Council that renovations were made to the firehouse without the required permits. Plaintiff was permitted to read the application for his expulsion which set forth these same two reasons. However, plaintiff was not given a copy of the Application.

Plaintiff was then given the opportunity to address these charges. Plaintiff flatly denied having threatened Faust. He admitted notifying the Mayor and Council that renovations had been made without permits. Nevertheless, he argued that, because the Township owned the firehouse, such matters were not simply the Hose Company's private business. After plaintiff addressed the charges, a vote was taken. By a vote of twenty-four to four, plaintiff was expelled from the Hose Company.

Plaintiff sought to appeal his expulsion to the Mayor and Township Council. The Mayor and Council initially agreed to provide a forum for plaintiff's appeal. Subsequently, however, the Mayor and Council concluded that, under the constitution and bylaws of the Hose Company that were in effect at the time plaintiff was expelled, they had no authority to hear the appeal. On January 22, 1990, plaintiff filed the present lawsuit alleging that Faust, the Hose Company and the Township of Clinton had violated his rights under the federal constitution and under the state constitution and state law. In his complaint, plaintiff sought, inter alia, reinstatement, a declaratory judgment that the provision under which he was expelled was overbroad and monetary damages. Prior to the filing of cross-motions for summary judgment, plaintiff abandoned all monetary claims.*fn1


A. Qualified Immunity of Faust

Defendant Faust argues that he "is entitled to judgment dismissing all claims against him individually based on the defense of qualified immunity." The district court's opinion did not address this issue. However, if a defendant asserts the affirmative defense of qualified immunity the court must determine as a threshold matter whether the defendant is entitled to that ...

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