PERDICK v. CITY OF ALLENTOWN et al

Filing 15

ORDER THAT THE DEFENDANTS MOTION TO DISMISS (DOC. NO.13) IS GRANTED IN PART AND DENIED IN PART. DEFENDANTS' MOTION TO DISMISS COUNTS I, II, III AGAINST DEFENDANT CITY OF ALLENTOWN IS DENIED. DEFENDANTS' MOTION TO DISMISS COUNT III AGAINST DEFENDANT CHIEF MACLEAN IS GRANTED. DEFENDANTS' MOTION TO STRIKE THE PARAGRAPHS 48(a) THROUGH 48(dd) IS DENIED. SIGNED BY HONORABLE LEGROME D. DAVIS ON 6/27/2013.6/27/2013 ENTERED AND COPIES E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DOUGLAS PERDICK

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:
:
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v.
CITY OF ALLENTOWN and CHIEF ROGER
MACLEAN

CIVIL ACTION

No. 12-cv-6302

ORDER
AND NOW, this 27th day of June 2013, upon consideration of Defendants’ Motion to
Dismiss and/or Strike Amended Complaint (Doc. No. 13) and Plaintiff’s Response thereto (Doc.
No. 14), it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN
PART.
I.

BACKGROUND1
Plaintiff was hired as a Patrolman and employee by Defendant City of Allentown in April

of 2006. (Am. Compl. ¶¶ 3–4, 22, Doc. No. 11). Plaintiff asserts that he suffers from a permanent
disability to his right knee that qualifies as a disability and affects major life activities, including
manual tasks, walking, standing, lifting, and bending, as defined by the Americans with
Disabilities Act (ADA) and the ADA Amendments Act of 2008 (ADAAA). (Id. at ¶¶ 9, 11–13).
Plaintiff claims (1) that he has a record of such impairment, (2) that Defendant City of Allentown
was aware of his impairment, and (3) that Defendant City of Allentown regarded him as having
this impairment. (Id. at ¶¶ 10, 15, 21).
1

As Defendants have moved to dismiss all claims against them under Federal Rule of
Civil Procedure 12(b)(6), this Court takes Plaintiff’s well-pleaded facts as true at this stage in the
litigation. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)).
1

On May 13, 2013, Plaintiff was terminated by Defendant City of Allentown by letter.
(Id. at ¶ 7; see also Am. Compl. Ex. A, Doc. No. 11-1). Plaintiff asserts that, at the time of his
termination, he was qualified for the position he held with Defendant City of Allentown, had an
above average work history with Defendant City of Allentown, and could perform the essential
functions of his job with a reasonable accommodation that would not have caused Defendant
City of Allentown any significant hardship. (Am. Compl. ¶¶ 6, 16, 18, Doc. No. 11). Plaintiff
alleges that Defendant City of Allentown did not consider accommodating him and refused to
grant him any reasonable accommodations short of termination without engaging in any
interactive process, thus preventing him for obtaining fully vested pension benefits, despite
having previously awarded disability pensions or made accommodations to other officers to
permit them to continue their employment. (Id. at ¶¶ 17, 19, 23, 47, 48(a)–(dd), 55).
Plaintiff further claims that he was terminated without due process, including a hearing
before the City Council, and without any action by the City Council. (Id. at ¶¶ 32–33, 36).
Plaintiff asserts that he acquired a property interest in his position since, pursuant to a collective
bargaining agreement, he could not be terminated without just cause. (Id. at ¶¶ 34, 37). Plaintiff
claims he was not given any opportunity to appeal his termination at the time it occurred. (Id. at
¶ 38).2 Plaintiff alleges that his due process rights were violated by both Defendant City of
Allentown and Defendant Chief Roger Maclean3 (Chief Maclean), since Plaintiff claims that

2

This Court notes that Plaintiff’s termination letter, which is attached to his amended
complaint, states that Plaintiff could “request a civil service hearing before City Council” if he
wished. (Am. Compl. Ex. A, Doc. No. 11-1). It is unclear if Plaintiff made any such request.
3

Defendants’ motion capitalizes the last name to be “MacLean,” but there is no dispute
among the parties that it is the same individual.
2

Defendant Chief Maclean was “the chief decision maker of the Police Department” and “set[]
policy” for the Police Department. (Am. Compl. ¶¶ 44, Doc. No. 11). Plaintiff alleges that
Defendant Chief Maclean “has expressly stated a deep seated intolerance for police officers who
suffer from disabilities.” (Id. at ¶ 45). Plaintiff claims that “personnel policies have been applied
by [Defendants City of Allentown and Chief Maclean] on a subjective, ad hoc basis, without the
imposition of rules and objective standards” and that “there was no written policy to justify the
termination of his employment.” (Id. at ¶¶ 49–51).
In the instant complaint, Plaintiff alleges that Defendant City of Allentown discriminated
against him in violation of the ADA as amended (Count I) and the Pennsylvania Human
Relations Act (PHRA) (Count II). Plaintiff further asserts a claim under 42 U.S.C. section 1983
that Defendants City of Allentown and Chief Maclean denied him procedural due process, as
guaranteed under the Fourteenth Amendment of the United States Constitution (Count III).
II.

LEGAL STANDARD
The Third Circuit directs district courts evaluating Rule 12(b)(6) motions to first

“separate” the factual and legal elements of a claim, accepting as true all “well-pleaded facts” of
the complaint but not necessarily accepting the complaint’s “legal conclusions,” and then
“determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has
a ‘plausible claim for relief.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Courts must view well-pleaded facts and
“reasonable inferences that may be drawn” from those facts “in the light most favorable to the
non-moving party,” Hirsch v. Schiff Benefits Grp., No. 10-cv-2574, 2011 WL 1166127, at *3
(E.D. Pa. Mar. 28, 2011) (citing Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989)),
3

including “facts alleged on information and belief,” Melo-Sonics Corp. v. Cropp, 342 F.2d 856,
859 (3d Cir. 1965). A motion to dismiss should be granted “only if it is clear that no relief could
be granted under any set of facts that could be proven consistent with the allegations.” Port
Auth.of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir. 1999) (quoting Alexander v.
Whitman, 114 F.3d 1392, 1397 (3d Cir. 1997)). Mere improbability of success is not sufficient to
dismiss a plaintiff’s complaint; rather, a plaintiff’s complaint need only provide “enough facts to
raise a reasonable expectation that discovery will reveal evidence of the necessary element.”
McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)) (internal quotations omitted).
III.

ADA and PHRA Claims (Counts I and II)4
“To establish a prima facie case of discrimination under the ADA, an employee must show

that he (1) is disabled, (2) is otherwise qualified to perform the essential functions of the job, with
or without reasonable accommodations by the employer, and (3) has suffered an adverse
employment action as a result of his disability.” Stadtmiller v. UPMC Health Plan, Inc., 491 F.
App’x 334, 336 (3d Cir. 2012) (citing Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d
Cir. 2009)) (not precedential). Plaintiff may establish discrimination “by proving that his employer
either took adverse action against him because of his disability or failed to make reasonable
accommodations for his known disabilities.” Drozdowski v. Northland Lincoln Mercury, 321 F.
App’x 181, 184 (3d Cir. 2009) (citing Taylor v. Phoexnixville Sch. Dist., 184 F.3d 296, 306 (3d
Cir. 1999)) (not precedential). Here, Plaintiff asserts this claim against Defendant City of Allentown

4

Because “[a]n analysis of an ADA claim applies equally to a PHRA claim,” Williams v.

Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 n.6 (3d Cir. 2004) (citation and quotation marks
omitted), this Court’s analysis of Plaintiff’s ADA claim also applies to Plaintiff’s PHRA claim.

4

failed to make reasonable accommodations although (1) he suffers from an actual disability and (2)
he was “regarded as” being disabled.5
“To prove a reasonable-accommodation claim, a plaintiff must show that his employer
failed to make ‘reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or employee, unless the
employer can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of the employer.’” Drozdowski, 321 F. App’x at 184 (quoting 42 U.S.C. §
12112(b)(5)(A)). An employer may be found to have breached its duty to provide reasonable
accommodations by failing to engage in good faith in the interactive process if plaintiff establishes
the following: “1) the employer knew about the employee’s disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the employer did not make a good faith
effort to assist the employee in seeking accommodations; and 4) the employee could have been
reasonably accommodated but for the employer’s lack of good faith.” Hohider, 574 F.3d at 187
(internal citation and quotation marks omitted). See also Stadtmiller, 491 F. App’x at 336 (noting
same standard). To prevail on a reasonable-accommodation claim based upon a failure to engage in
the interactive process, however, plaintiff must have a “disability” as defined under the ADA, since
“failure to engage in the interactive process, in itself, does not constitute [a violation of the ADA].”
Hohider, 574 F.3d at 194 (internal citation and quotation marks omitted).

5

Although Plaintiff’s amended complaint does not specifically state Plaintiff’s desire to
prove discrimination due to a failure to provide reasonable accommodations, Plaintiff’s
complaint focuses on the lack of interactive process and failure to make accommodations that
would not cause significant hardship. (See Am. Compl. ¶¶ 17–19, 23, Doc. No. 11). Plaintiff’s
response to the instant motion similarly focuses on Defendant City of Allentown’s failure to
provide reasonable accommodations. (See Pl.’s Resp. 5–12, Doc. No. 14). Therefore, this Court
evaluates the instant motion to dismiss based on this theory.
5

The ADA defines “disability” as: “(A) a physical or mental impairment that substantially
limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment.” 42 U.S.C. § 12102(1) (2013). Major life activities
include activities such as “caring for oneself, performing manual tasks, . . . , walking, standing,
lifting, bending, . . . , and working.” 42 U.S.C. § 12102(2)(A) (2013). “Disability” is to be construed
“in favor of broad coverage of individuals.” 42 U.S.C. § 12102(4)(A) (2013). Further,
determinations of disability are to be made “without regard to the ameliorative effects of mitigating
measures,” including “medication,” “mobility devices,” “assistive technology,” and “reasonable
accommodations.” 42 U.S.C. § 12102(4)(E) (2013).
This Court first addresses Plaintiff’s claim based on his theory that he was “regarded as”
disabled. Notwithstanding the fact that the ADA’s general definition of disability includes “being
regarded as having [a disability that substantially limits one or more major life activities],” the
statute as amended does not require employers to provide reasonable accommodations to
individuals only qualify as individuals under the “regarded as” prong. See 42 U.S.C. § 12201(h)
(2013) (noting employers “need not provide a reasonable accommodation or a reasonable
modification to policies, practices, or procedures to an individual who meets the definition of
disability . . . solely under [the “regarded as” prong]”). See also 29 C.F.R. § 1630.9 (2013) (noting
that employers need only provide reasonable accommodations to a qualified individual with an
“actual disability” or “record of” disability). Therefore, Plaintiff may not pursue a cause of action
for failure to accommodate based upon allegations that he was “regarded as” having a disability.
See Kiniropoulos v. Northampton Cnty. Child Welfare Serv., No. 11-6593, -- F. Supp. 2d. -- , 2013
WL 140109, at *6 (E.D. Pa. Jan. 11, 2013) (noting that, “as part of the amendments to the ADA,
claims based on a failure to accommodate can only be brought as part of an actual disability claim”)

6

(emphasis in original); McGinley v. City of Allentown, No. 5:12-cv-645, 2012 U.S. Dist. LEXIS
188387, at *10 (E.D. Pa. June 18, 2012) (noting that actual disability is required to proceed under a
“failure to accommodate” cause of action).6
This Court now turns to Plaintiff’s claim based on his assertion of actual disability.
Defendant City of Allentown argues that Plaintiff’s amended complaint fails to sufficiently allege
(1) that he has an actual disability or (2) that he requested any accommodation. (Defs.’ Mot. 7, Doc.
No. 13-1). In his amended complaint, Plaintiff claims that he suffers from a permanent disability to
his right knee that substantially limits major life activities such as walking, standing, and lifting.
(Am. Compl. ¶¶ 9, 13, Doc. No. 11). Plaintiff further asserts that he has a record of such
impairment. (Id. at ¶ 15). Plaintiff also specifically alleges that Defendant City of Allentown was
aware of his disability. (Id. at ¶ 10). Further, although Plaintiff does not specifically name a
requested accommodation or explicitly state that he requested an accommodation from Defendant
City of Allentown, Plaintiff does allege that Defendant City of Allentown “refused to grant [him]
any reasonable accommodations short of termination” and “engaged in no interactive process
intended to allow him to continue working for [Defendant City of Allentown].” (Id. at ¶¶ 19, 23).
From these allegations, one could infer that Plaintiff has an actual disability and requested some
assistance for it; therefore, at this stage of the litigation, this Court cannot find that Plaintiff has not
alleged sufficient facts to withstand a motion to dismiss. Therefore, Defendant City of Allentown’s
motion to dismiss Counts I and II is denied.

6

This Court notes that, in Williams v. Philadelphia Housing Authority Police Department,
380 F.3d 751, 775 (3d Cir. 2004), the Third Circuit came to a contrary conclusion when
interpreting the statute prior to the ADA Amendments Act of 2008. The Third Circuit declined to
address the issue in Hohider v. United Parcel Services, Inc., 574 F.3d 169, 188 n. 17 (3d Cir. 2009),
choosing to resolve that matter on other grounds. As there is no dispute in this case that the ADA
Amendments Act of 2008 applies, this Court defers to the clear statutory text on this point.
7

IV.

Procedural Due Process Claim (Count III)

Plaintiff asserts a claim under 42 U.S.C. section 1983 that Defendants City of Allentown
and Chief Maclean denied him procedural due process, as guaranteed under the Fourteenth
Amendment of the United States Constitution. 42 U.S.C. section 1983 provides a federal cause
of action for a plaintiff whose constitutional rights have been violated by a person acting under
color of state law. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580–81 (3d Cir. 2003).
Claims under section 1983 are not limited to public actors, and one can properly rely on section
1983 to sue a private corporation acting under color of state law. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 (1978). When relying on section 1983 to sue a private actor, liability cannot
rest solely on the principle of respondeat superior; rather, a plaintiff must show individual
liability based on specific actions or failures to act. Natale, 318 F.3d at 582. “Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
To hold an individual liable in his official capacity or extend liability to a municipal
employer, plaintiff must show that the defendant initiated or maintained, on behalf of the
municipality, a policy or custom that caused the constitutional violation. Natale, 318 F.3d at
583–84. “Policy is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or edict.”
Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986)). “Custom, on the other hand, can be proven by showing
that a given course of conduct, although not specifically endorsed or authorized by law, is so
8

well-settled and permanent as virtually to constitute law,” Bielevicz v. Dubinon, 915 F.2d 845,
850 (3d Cir. 1990) (citing Andrews, 895 F.2d at 1480), and “may be established by proof of
knowledge and acquiescence,” Fletcher v. O’Donnell, 867 F.2d 791, 793–94 (3d Cir. 1989). One
in an official capacity and, therefore, the municipality, may be liable under section 1983 in cases
where a policymaker “made ‘a deliberate choice to follow a course of action . . . from among
various alternatives, . . . and the policy chosen ‘reflects deliberate indifference to the
constitutional rights” of citizens. Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d
Cir. 1989) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). In determining whether
a defendant is a “policymaker,” courts look to state law to determine whether the official “has
final, unreviewable discretion to make a decision or take an action.” Kelly v. Borough of
Carlisle, 622 F.3d 248, 265 (3d Cir. 2010) (citing Andrews, 895 F.2d at 1581).
This Court notes at the outset that, to the extent Plaintiff claims that Defendants City of
Allentown and Chief Maclean violated his rights to a hearing before and action by the City Council
prior to his termination, as guaranteed under Pennsylvania law because of Defendant City of
Allentown’s status as a third-class city, Plaintiff cannot do so under 42 U.S.C. section 1983, since
section 1983 provides remedies only for violations of federal law. McMullen v. Maple Shade

Twp., 643 F.3d 96, 99 (3d Cir. 2011) (citations omitted). See also Rivera v. Ill., 556 U.S. 148, 160
(2009) (stating that “errors of state law do not automatically become violations of due process”);

Rector v. City & Cnty. of Denver, 348 F.3d 935, 947 (10th Cir. 2003) (“It is well established . . .
that a state’s violation of its own laws does not create a claim under [section] 1983.”). Therefore,
to succeed on his procedural due process claim, Plaintiff must show that he was deprived of his
rights under the U.S. Constitution.

9

Fourteenth Amendment procedural due process claims are “subject to a two-stage
inquiry: (1) whether the plaintiff has a property interest protected by procedural due process, and
(2) what procedures constitute due process of law.” Schmidt v. Creedon, 639 F.3d 587, 595 (3d
Cir. 2011) (citation and internal quotation marks omitted). In the instant action, the parties do not
dispute that Plaintiff had a property interest in his employment as a police officer under
Pennsylvania law.7 See 53 Pa. Cons. Stat. Ann. § 37001 (West 2013); Balliett v. City of
Allentown, No. 92-cv-4713, 1994 WL 719637, at *8 (E.D. Pa. Dec. 22, 1994) (noting plaintiff’s
“property right in continued employment as a police officer”). The parties dispute only whether
Defendants’ procedures comported with due process. Specifically, Plaintiff asserts that he did not
receive a hearing prior to his termination8 and was not permitted to prosecute his grievance under
the collective bargaining agreement. (Am. Compl. ¶¶ 36, 41, 42, Doc. No. 11).
Defendants argue that Third Circuit precedent under Dykes v. Southeastern Pennsylvania
Transportation Authority, 68 F.3d 1564 (3d Cir. 1995), and Jackson v. Temple University, 721
F.2d 931 (3d Cir. 1983), require dismissal of Plaintiff’s claims, since the collective bargaining
agreement provides an “adequate grievance procedure” and Plaintiff does not allege that
Defendants interfered with that procedure. (Defs.’ Mot. 11, Doc. No. 13-1). However, Plaintiffs
7

Plaintiff also asserts that he had a protected property interest under the collective
bargaining agreement. (Am. Compl. ¶ 34, Doc. No. 11). As this Court finds that Pennsylvania
law provides a protected property interest, we need not consider whether the collective
bargaining agreement also does so.
8

It is not entirely clear whether Plaintiff asserts that he was deprived of any hearing or
merely deprived of a hearing before the City Council, which is provided under Pennsylvania law.
Since Plaintiff specifically asserts in paragraph 41 of his amended complaint that he was
deprived of a hearing, at this stage of the litigation, this Court interprets Plaintiff’s claim as a
deprivation of any hearing. As noted above, 42 U.S.C. section 1983 provides remedies only for
violations of federal law, not state law.
10

correctly argue that, in its subsequent decision of Schmidt v. Creedon, 639 F.3d 587 (3d Cir.
2011), the Third Circuit specifically rejected this argument, stating that Dykes and Jackson
“cannot be read as holding that the availability of post-deprivation union grievance procedures
relieves a public employer of the obligation to provide an employee with a hearing prior to his
termination or suspension without pay,” since its reasoning in those cases did not address the
need for a hearing prior to such action. Schmidt, 639 F.3d at 597. The Third Circuit then
reiterated prior precedent that indicated that, “absent extraordinary circumstances,” police
officers are entitled to a hearing prior to termination. Id. at 598 (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985); Gniotek v. City of Phila., 808 F.2d 241, 244 (3d Cir.
1986)). A pre-termination hearing can be “informal,” and “an employee is entitled only to notice
of the charges against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” Schmidt, 639 F.3d at 596 (internal citation and quotation marks
omitted). Because Plaintiff has asserted that he was not provided any hearing prior to his
termination by letter, this Court finds that Plaintiff has alleged sufficient facts to withstand a
motion to dismiss on this claim by Defendant City of Allentown.9
Defendants also argue that Count III must be dismissed against Defendant Chief Maclean
because Plaintiff fails to assert any personal involvement on the part of Defendant Chief Maclean
in the deprivation of his constitutional rights. (Defs.’ Mot. 14, Doc. No. 13-1). Specifically,

9

Because we find that Plaintiff has asserted sufficient facts to withstand Defendant City
of Allentown’s motion to dismiss based on the theory he was deprived of his right to a pretermination hearing, we need not assess whether Plaintiff alleges sufficient facts to support his
theory that he was not permitted to prosecute a grievance under the collective bargaining
agreement.
11

Defendants argue that Plaintiff makes no allegations that Defendant Chief Maclean played an
“affirmative part” in any of Defendant City of Allentown’s decisions regarding hearings, appeals,
or grievances. (Id.)
Plaintiff does not indicate if he asserts his claim against Defendant Chief Maclean in his
individual capacity, his official capacity, or both; therefore, for purposes of the instant motion,
this Court considers Plaintiff’s claim as if asserted against Defendant Chief Maclean in both his
individual and official capacities. First, Plaintiff does not assert any facts indicating Defendant
Chief Maclean personally acted or directed others to act to deprive Plaintiff of his right to a pretermination hearing. Although Plaintiff asserts that Defendant Chief Maclean sets policy for the
Police Department as its “chief decision maker,” (Am. Compl. ¶ 44, Doc. No. 11), Plaintiff does
not allege any specific custom or policy of Defendant City of Allentown’s Police Department
that led to the deprivation of his constitutional right to due process. Similarly, although Plaintiff
alleges that Defendant Chief Maclean “has expressly stated a deep seated intolerance for police
officers who suffer from disabilities,” (Id. at ¶ 45), Plaintiff does not indicate any custom, policy,
or practice resulting from this alleged intolerance that caused the deprivation of his right to a pretermination hearing. Therefore, Plaintiff has failed to allege sufficient facts to withstand
Defendant Chief Maclean’s motion to dismiss this claim against him in either his individual or
official capacities, and Defendant Chief Maclean’s motion to dismiss this claim is GRANTED.
V.

Defendants’ Motion to Strike
Courts have “considerable discretion in disposing of a motion to strike under Rule 12(f).”

N. Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F. Supp. 154, 158 (E.D. Pa. 1994) (citation

12

and internal quotation marks omitted). However, motions to strike “are not favored and usually
will be denied unless the allegations have no possible relation to the controversy and may cause
prejudice to one of the parties, or if the allegations confuse the issues.” Id. (citation and internal
quotation marks omitted). Striking a pleading is a “drastic remedy” that should be “sparingly
used by courts.” Id.
This Court declines to find that paragraphs 48(a) through (dd) “have no possible relation
to the controversy” or that the allegations “confuse the issues.” Therefore, we exercise our
considerable discretion to deny Defendants’ motion to strike these paragraphs.
In conclusion, it is hereby ORDERED that Defendants’ motion is GRANTED IN PART
and DENIED IN PART as follows:
1.

Defendants’ motion to dismiss Counts I, II, and III against Defendant City of
Allentown is DENIED.

2.

Defendants’ motion to dismiss Count III against Defendant Chief Maclean is
GRANTED.

3.

Defendants’ motion to strike the paragraphs 48(a) through 48(dd) is DENIED.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

13