If you think the fireground can be confusing, you ain't seen nothin' yet. Let me tell you a story about a fire company that unraveled. What resulted was described by one of the courts ultimately involved as “one manifestation of the intensity and tenacity of a volunteer firefighter feud.”

For many years, Andreas Fire Company No. 1, a volunteer organization, had been the recognized fire company of West Penn Township, Pa. Unfortunately, dissension developed in the organization, and in 1999 several of the members left Andreas No. 1 and formed a new fire company known as West Penn Fire Company No. 1. In November of that year, West Penn's Township Board of Supervisors passed a resolution that deactivated Andreas No. 1 and officially recognized West Penn No. 1 as the exclusive provider of fire protection services in the township.

Enter yet another organization, the Andreas Volunteer Firefighter's Relief Association, which had been affiliated with Andreas No. 1. Pursuant to its bylaws, the relief association was scheduled to conduct its regular quarterly membership meeting on Jan. 11, 2000, a couple of months after West Penn Township had voted to deactivate Andreas No. 1.

When Paul Breiner, the relief association's vice president, attempted to postpone the meeting, a number of the association members — mostly those who had left Andreas No. 1 to form West Penn No. 1 — showed up anyway. However, they were unable to gain access to the Andreas No. 1 Fire Hall because Paul Breiner had changed the locks. Undaunted, they then convened the relief association meeting in the fire hall parking lot.

Prior to calling the meeting to order, Leroy Breiner (no relation to Paul Breiner), relief association president and also chief of the newly formed West Penn No. 1, summoned West Penn Township Police Officer Brian Johnson and informed Johnson of his intention to have the relief association transfer firefighting equipment to West Penn No. 1. While Leroy Breiner expressed concern that there could be trouble, Johnson did not regard the matter as serious and left.

The Andreas Volunteer Firefighter's Relief Association then proceeded to vote to transfer possession of a 1976 GMC rescue truck and related equipment to West Penn No. 1. Later that evening, members of West Penn No. 1 somehow gained access to the Andreas No. 1 Fire Hall and removed the rescue truck and equipment. Meanwhile, Johnson responded to a burglar alarm at the fire hall. There is a factual dispute between the parties regarding whether he was present when the property was removed from the fire hall by West Penn No. 1.

To again quote one of the courts involved, “with that act, the litigation floodgates opened.” On Jan. 18, 2000, Andreas No. 1 filed suit in state court seeking deactivation of West Penn No. 1 on the basis that Andreas No. 1 was better equipped to handle fires in the community. The lawsuit also sought a preliminary injunction demanding that West Penn Township reactivate Andreas No. 1 and immediately adopt another resolution recognizing and authorizing Andreas No. 1 to fight fires within the municipality.

Acting quickly, the trial judge held a conference of the parties on Jan. 21, 2000, stressing to them the importance of maintaining viable emergency services to the township residents and strongly urging them to attempt to work together. As a result of the conference, the parties agreed that the township resolution deactivating Andreas No. 1 would be modified to include both Andreas No. 1 and West Penn No. 1 as fire protection providers in the township. However, the township reserved the right to make rules and regulations for the government of fire companies within the township and to appoint the township fire chief.

On Feb. 15, 2000, the township passed a new ordinance, this time providing that West Penn No. 1 would be the primary provider of emergency services and Andreas No. 1 would be responsible for responding to structure fires. This caused Andreas No. 1 to amend its lawsuit on March 2, 2000, to challenge this latest ordinance by asserting that it created a dangerous situation for residents of the township by limiting the types of fires to which Andreas No. 1 could respond. In addition, Andreas No. 1 now challenged the township's authority to transfer funds claimed to be earmarked for Andreas No. 1 to West Penn No. 1. Andreas No. 1 further requested the court to find that the truck and other firefighting equipment were the property of Andreas No. 1. Unfortunately for Andreas No. 1, on April 28, 2000, the judge held that the Feb. 15, 2000, township resolution dividing the response duties between Andreas No. 1 and West Penn No. 1 was a valid exercise of the township's authority. The judge also ruled that he would hold an evidentiary hearing to determine who owned the truck and equipment.

Not to be discouraged, on Sept. 28, 2000, Andreas No. 1 and the Andreas Volunteer Firefighter's Relief Association filed a replevin action (a remedy used to obtain the return of property improperly held by another) against West Penn No. 1, seeking return of the rescue truck and missing equipment, alleging that West Penn No. 1 improperly took possession of them. On Jan. 20, 2001, a little more than a week before the case was to go to trial, West Penn No. 1 returned the truck to Andreas No. 1.

With all of this going on, one might think that enough was enough. Not so. On March 31, 2000, while the state court actions were still pending, Andreas No. 1, the relief association and four of their members brought suit against West Penn No. 1, several of its members, West Penn Township and Officer Brian Johnson, this time in U.S. District Court. They alleged that various of the defendants had violated various of the plaintiffs' constitutional rights under the First, Fourth and 14th amendments. The lawsuit also asked the Federal Court to assert state law claims for defamation, malicious prosecution and civil conspiracy.The District Court granted summary judgment in favor of the defendants and dismissed the plaintiffs' complaint, holding that the plaintiffs were barred from litigating many of their claims because those issues had, by the time of the ruling, already been decided against them in the prior state cases.

The District Court also held that the portion of the suit relating to the removal of the rescue truck and equipment by West Penn No. 1 from the Andreas No. 1 Fire Hall failed to state a valid claim under 42 U.S.C. Section 1983 against Johnson because it did not involve state action. To prevail on this claim, the plaintiffs had to prove more than just that Johnson was present when the property was removed. The court ruled that even if Johnson was indeed present (a fact in dispute), there was no evidence that he assisted in the removal. The plaintiffs would have had to show that Johnson was acting under color of state law and that his conduct deprived the plaintiffs of rights or privileges secured to them by the Constitution or laws of the United States. Absent active participation by Johnson in removing the property, there was no state action, and therefore no claim. The plaintiffs then appealed this decision to the U.S. Court of Appeals for the Third Circuit in Breiner v. Litwhiler, 98 Fed.Appx. 75, 2004 WL 557335 (3rd Cir.).

The Court of Appeals reviewed the question of whether the adjudications in the two state court cases barred the plaintiffs from relitigating those issues in Federal Court. The court examined a doctrine known as collateral estoppel, holding that it applies “when the issue decided in the prior adjudication was identical with the one presented in the later action; there was a final judgment on the merits; the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in the prior adjudication.”

The appellate court noted that the state courts had rejected the plaintiffs' claims that the rescue truck and equipment were illegally transferred to West Penn No. 1, and that the township had no authority to recognize and shift funding to West Penn No. 1. Those were the same issues that formed the basis of the plaintiffs' First, Fourth and 14th Amendment claims, and therefore the plaintiffs were collaterally estopped from litigating these issues again in federal court.

The appellate court also held that the District Court correctly found that the plaintiffs had not shown that the transfer of the rescue truck and equipment to West Penn No. 1 involved state action by Johnson, and consequently their Section 1983 claim on that issue was fatally flawed. The appellate court then affirmed in all ways the District Court's dismissal of the plaintiffs' claims.

Needless to say, all of this litigation entailed a great deal of time and money. However, the greater loss was certainly in the morale of the departments, the loss of stature in the community, and the decrease in response effectiveness.

While dissension and controversy can never be eliminated, their likelihood of occurring in similar situations can be reduced by:

• Clearly defining organizational structure.
• Documenting ownership of property.
• Clearly setting out the respective obligations and duties of the fire organization and the governmental units it serves.
• Defining in writing under what circumstances and in what time frame the relationship can be modified or terminated.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.