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Precedential or Non-Precedential: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.    

room supervisor, not the trooper on the road,

makes the decision on the nearest available towing service.      

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, 

(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.

of the guideline reiterates that "[o]ur policy is

the nearest available to the scene on a rotational basis," 

(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.     

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.      

v.

Michigan Dep't of State Police, 

(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."    

(citing Harlow v. Fitzgerald, 

, 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."    

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, 

, 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, 

, 401 (3d Cir. 1988); 

.

7
 . Contrary to the State Police's assertion in its Supplemental
Brief, Pennhurst State School & Hospital v. Halderman, 

(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." 

see Allegheny County Sanitary Auth. v. EPA,

, 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 

(citing Pennhurst 

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, 

,
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, 

, 237 (1974) ("[S]ince Ex
parte Young, 

(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,

, 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, 

, 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, 

, 332 (1976);

.

              "One alleging a property interest in a benefit

protected by due process must go beyond showing an

unsubstantiated expectation of the benefit."       

.    "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, 

, 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."   

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, 

, 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."   

.    In this case, the existence

of a property right is an issue of state law.    See Abercrombie v.

City of Catoosa, 

, 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.     

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."


  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 

.8

           In Pritchett v. Alford, 

, 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, 

(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).

see also 

(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, 

, 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, 

, 1242-43 (11th Cir.), cert.

denied, 

(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.   

is no such statute

or rule.

           This case is also distinguishable from Stana v. School

District of City of Pittsburgh, 

(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.   

  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.    

126-27; cf. Newark Branch, NAACP v. Town of Harrison, New Jersey,

, 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, 

, 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."   

(quotation and citation omitted); see also Durham v. Jones,

, 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.   

, 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, 

(2d Cir.), cert. denied, 

(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.    

  These assignments gave

a single towing company an exclusive right to towing referrals in

its own zone.10   

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.   

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.      

  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.      

v. Dietrich, 

, 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.   

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., 

, 27 (Pa.
Super.), alloc. denied, 

(Pa. 1991); Darlington v.

General Elec., 

, 309 (Pa. Super. 1986).     Thus, as in

White Plains Towing, whatever rights Piecknick may have had are

terminable at will.   See White Plains 

;

.   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., 

, 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, 

, 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, 

, 492 (1959); see also Truax v. Raich, 

, 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, 

, 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, 

, 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.'"   

v. City

of Washburn, 

, 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.   

.   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.    

           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.    

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.

   But see 

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 

.

            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, 

, 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

).    The Field Regulations were merely

internal departmental regulations, or interpretive rules,

governing the police themselves.    

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. 

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, 

, 695-96 (Pa. Commw. 1985)

with Pennsylvania Human Relations Comm'n v. Norristown Area Sch.

Dist., 

, 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, 

(3d Cir. 1981), or where there is harm to an individual's

reputation, see Chilingirian v. Boris, 

(6th Cir.

1989).   See also 

(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 

.
          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, 

(3d Cir. 1975) (police harassment can sustain cause of
action under section 1983) and San Jacinto Sav. and Loan v.
Kacal, 

(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, 

, 932-33 (3d Cir. 1976).