Wren v. County of Luzerne, et al

Filing 77

MEMORANDUM (Order to follow as separate docket entry)The Court recognizes that witnesses may, deliberately or inadvertently, wander into areas previously proscribed by rulings of this Court. In such circumstances, the Court may have to reconsider its rulings and, in certain circumstances, even reverse them. Hopefully, this can be avoided by scrupulous preparation by counsel. However, witnesses may deliberately try to inject into the case matters which the Court has ruled are inappropriate under the circumstances of the pleadings. Whatever the cause, there may be need for the Court to reconsider some of the rulings issued onotions filed by counsel in this case.The Court has thoroughly considered the arguments presented by counsel regarding D efendants' motions. It is our hope that continued assiduous preparation will help in counsel presenting this case thoroughly and directly to a jury. It is also our hope that the rulings on the motions filed will enable counsel, especially in pre paration of things like opening statements and examination of jurors, to move the trial along expeditiously and that only appropriate questions will be raised and discussed in the courtroom before the jury. An Order consistent with the foregoingMemorandum will be filed contemporaneously herewithSigned by Honorable Richard P. Conaboy on 6/19/15. (cc)

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD WREN ,
: CIVIL ACTION NO. 3 :11-CV-1 769
Plaintiff ,
(JUDGE CONABOY)
v.

FILED
SCRANTON

COUN TY OF LUZERNE,
MARYANNE C . PETRILLA
and STEPHEN A . URBAN ,

JUN 1 9 2015

Def e ndants.
PER

crt-..

MEMORANDUM

Here we consider the filing titled " Defe nd a nts Luzerne Co unt y ,
Maryanne Petrilla and Stephen A. Urban 's Motions in Limine" which
presents seven motions to preclude evidence and/or testimony from
being presented at trial .

(Doc . 60 . )

The motion was accompanied

by a supporting brief (Doc . 61 ) , a nd Pla intiff filed his opposition
brief (Doc . 73)

o n May 22 , 20 1 5 .

With the filing of Defendants'

reply brief o n J un e 16, 20 1 5 ( Doc . 76) , the motions are full y
br ie fed and ripe for disposition .
I.Background

We briefly summarize the factual and procedural background of
this case to provide context for the motions under consideration . 1
On July 1 3 , 2005 ,

Pla intiff was appointed to the position of

Dire c tor of Vetera n s ' Affairs in Luzerne County by f ormer

A detailed factual background is set o ut in the Court ' s
February 8 , 2013 , Memorandum address ing Defendants' County of
Luzerne , Maryanne C . Petrilla and Stephen A . Urb an 's Motion for
Summa r y Judgment (Doc . 20) . (Doc . 38 at 2-1 2 . )

Commissioners Gregory Skrepenak, Todd Vonderhied, and St
(Doc. 23

Urban.

5; Doc. 29

~

~

5.)

ry Skrepenak.

affiliate of

Plaintiff was a political

(Doc. 73 at 1.)

Defendants

Petrilla and Urban were allegedly political adversaries of former
Commissioner Skrepenak.

(Id. )

The County Commissioners had a duty of ensur

flags are

sed and placed on gravesites each Memorial

, and the

was administered by the Veteran's Office under Plaintiff's

activi

(Doc. 23

leader

~

45; Doc. 29

~

45.)

Local veterans'

zations volunteer to place the flags and the County can
up to seventy-five dollars
(Doc. 2 3

meals.

~

46.)

($75.00) for refreshment

Plaintiff was re

authorizing the reimbursement of payments.
~

(Doc. 23

veteran would submit a written rece

47.)

ible for
~

47;

~oc.

29

or written

request with the amount of money spent to Plaintiff and a payment
authorization form would be completed and the documentation
attached, then Plaintiff would sign off on the payment.
48; Doc. 2 9

~

The exe

48.)

(Doc. 23

authorization form and

documents would then be sent to the County Controller's

atta

(Doc. 23

~

50; Doc. 29

50.)

~

Luzerne County authorized Plaintiff to establish his own
for the utilization of rece
reimburs

s for the purpose of

the coffee and doughnut expenses of veterans who

volunteer to place Memorial Day fl

2

(Doc. 29 CMF

~

45; Doc. 34

~

g[

45.)

Defendants add that Plaintiff used the same procedure that

had been used for "40-plus years U at the office, that is, attaching
a receipt to the submission for payment authorization.

(Doc.

34

g[

45. )
Plaintiff had set a deadline of July 15, 2009,

for the

Memorial Day flag related food reimbursements, but had the right to
change the deadline.

(Doc. 23 g[ 50; Doc. 29 g[ 50.)

2009, John A. Brogna ("Brogna U

)

In September

sought reimbursement for expenses

allegedly incurred at Perkins Restaurant on behalf of the Disabled
Veterans of America, a group which assisted with 2009 Memorial Day
cemetery decorating in the City of Pittston.

(Doc. 23 g[g[ 51-52.)

The Perkins receipt was reportedly misplaced and Brogna was unable
to get a copy of the receipt from Perkins.
29 g[g[ 53-55.)

(Doc. 23 g[g[ 53-55; Doc.

Brogna returned to the office with a receipt from

Perkins from another day which Plaintiff accepted and told the
clerk to alter the receipt to reflect the date of May 31, 2009, and
the amount $70.00 which Brogna said was the amount spent.
g[ 56;

Doc. 29 g[ 56.)

(Doc. 23

The altered receipt was then attached to the

payment authorization form for $70.00 and Plaintiff signed off on
it and submitted it to the Controller's Office.

(Doc. 23

g[

57;

Doc. 29 g[ 57.)
Sharon Roke, who worked at the Veterans' Affairs office in
2009 as a Clerk 2 (and had since the Fall of 2008) with duties
which included functioning as a payroll clerk (Doc. 25-7 at 8 (Pape

3

Dep. 7:10-18)), actually submitted the payment request at
(Doc. 29 CMF

Plaintiff's direction.

The altered receipt was noted by

~

49.)
County Controller's

Office, and a meeting was held with Plaintiff, Chief County
Solicitor Vito DeLuca, County Manager/Chief Clerk Doug Pape, and
County Human Resources Director Doug Richards attending.
58; Doc. 29

~

23

~

~

59; Doc. 29

County Manager

58.)
~

Plaintiff admitted to the alteration.

59.)

(Doc.

Chief County Solicitor Vito DeLuca and

ef Clerk Doug Pape recommended that Plaintiff

terminated for submitting an altered
(Doc. 23

(Doc. 23

for reimbursement

60), an assertion disputed by Plaintiff as be

~

implausible (Doc. 29

~

60).

On Sept

24, 2009, Defendants

County Commissioners Petrilla and Urban voted to terminate
Plaintiff at the public Commissioner's meeting.
Doc. 29

~

(Doc. 23

~

61;

61.)

Defendant Petrilla testified

2009 and before t

some

ayment authorizations were paid for expenses directed to Luzerne
County without having receipts.
(Petrilla Dep. 29:3-9).)

(Doc. 29 CMF

~

42; Doc. 25-2 at 30

Defendant Petrilla added that these

employees did not submit false rece

s; those expenses for which

they could not produce receipts they had to personally pay back to
the county.
29:22-25).)

(Doc. 29 CMF

~

42; Doc. 25 2 at 30 (Petrilla Dep.

se employees were not terminated.

(Petrilla Dep. 29:17).)

(Doc. 25-2 at 30

Defendant Urban made an unsuccessful

4

attempt (lack of second to his motion) to te
employees and also

their res

25-3 at 10 (Urban

30:21-25).)

eeting, De

ion.

Urban made a motion to te

(Doc. 34

because of his

so.

42; Doc. 25-3 at 10 (

~

Urban testified t

Vegas strip

(Doc. 34

~

42; Doc.

At a County Prison Board

Sam Hyder and the motion was seconded by De
not pass.

e involved

he believed Hyder was

former Warden
Petrilla but did
Dep. 31: 1- 5) . )
ect to termination

suse of the debit card (using the card at a Las
ub) and

(Doc. 29 CMF

~

s initial and sub

86; Doc. 34

den

Is of doing

86; Doc. 25 3 at 10 (Urban Dep.

~

31: 7-13) .)
Plaintiff filed this action pursuant to 42 U.S. § 1983 on
September 23, 2011.
Count I asserting

(Doc. 1.)

The Complaint contains four counts:

rst and Fourteenth Amendment violations

pursuant to 42 U.S.C. § 1983 against all De

Si

Count II

asserting First and Fourteenth Amendment violations pursuant to 42
U.S.C. § 1983 against Defendants Petrilla and Urban in their
individual

t

Si

Count III asserting Discrimination on

ccount of Age pursuant to the Age Discrimination in

10

Act

("ADEA"), 29 U.S.C. § 623(a) and 29 U.S.C. § 215i and Count IV
asserting Discr

ion on Account of Age pursuant to the

Pennsylvania Human Relations Act ("PHRA"),
1.)

43 P.S. § 955(a).

(Doc.

As a result of the Court Orders of February 8, 2013, and

February 28, 2013, the only claims going forward were Plaintiff's

5

First Amendment association claims in Counts I and II.

(Docs. 39,

42.)
II. Discussion
Relevant Law

As noted above, the only remaining claims in this case are
those based on Plaintiff's assertions that his First Amendment
freedom of association rights were violated.

Plaintiff alleges in

his Complaint that he was terminated in part because of his
political affiliation with Gregory S
during the time at issue to whom De

01

ically opposed.

(Doc. 1

~~

k, a County Commissioner
s Petrilla and Urban were

21 24, 30-31.)

relevance of evidence/testimony De

Because the

s seek to

lude must be

decided in the context of the legal elements of a freedom of
ass

ation claim, we briefly set the relevant legal standard.
In order to rna

discrimination in vi
ust show the foll

a prima facie case of political
ation of the First Amendment, a p

intiff

ng: 1) he was employed at a public agency in a

does not require political affiliation; 2) he was
in constitutionally protected conduct; and 3) this conduct
substantial or motivating factor in the government's
oyment decision.

Galli v. New

(3d Cir. 2007)

Meadowlands Comm'n,

(citation omitted) .

490

Once a plaintiff

s this showing, a defendant "may avoid a finding of liability
by

by a p

rance of the evidence that the same

6

employment action would have been taken even in the absence of the
protected acti

ty."

Id.

(citing 5t

v. Kerrigan,

171, 176 (3d Cir. 1997); Mt. Healthy Ci
v. Do Y1 e,

122 F.3d

5ch. Dist. Bd. of Educ.

4 2 9 U. S. 2 7 4, 2 8 7 ( 1 97 7) ) .

De£endants' Motions
1.

Motion in Limine to Preclude Plaintiff from Arguing,
Referencing and/or Testifying Regarding Any Alleged Misuse or
Discipline Resulting from Current and/or Former County
Officials' Use of County Issued Debit Cards

With

s mot

, Defendants seek to preclude evidence they

expect Plaintiff to attempt to introduce

other prior or

resent county officials who allegedly misu
in 2007 and were not disciplined as a result.
Defendants maintain that Plaintiff should not
about the other alleged

introduce evi
of discipl

county debit cards
(Doc.

61 at 3-4.)

allowed to
suse to show disparity

between those individuals and Plaintiff because the

evidence is not similar in nature to the incident at issue, and it
will prejudice Defendants and confuse the j
ily point to the

Defendants
personnel submit
used County

(Doc. 61 at 3 4.)

that no other County

false receipts for re

sement, rather they

it cards for questionable expenses.

Defendants also assert there is no true

(Id.

at 4.)

sparity of discipline

because Defendant Petrilla "was not a County Commissioner at the
time of the purported debit card situation and therefore did not
possess the authority to discipline or discharge those individuals

7

involved."

(Id. )

Plaintiff points to the fact that the underlying expense in
Plaintiff's case was properly

red and it is undisputed that he

did not intend "to line his own pockets" by his actions.
at 4, 5.)

In contrast, Plaintiff points to the County

(Doc. 73
rsonnel

debit card cases in which County officials could not produce
receipts to show that debit card purchases were le

timate

expenses, characterizing this as "[fJar worse conduct on the part
of county employees, with far

r financial implications" which

did not result in termination.

(Id.

at 4.)

Plaintiff also points

to the assertion by Luzerne County Controller Walter Griffith t
Luzerne County has not disciplined empl

s who submitted multiple

ces for the same service "only because
to line their own pockets."

(Id.

y were not intending

at 45.)

Defendants state that "the lack of

scipl

taken against

the debit card holders under plainly dissimilar circumstances is of
no evidentiary relevance to this matter."

(Doc. 76 at 3.)

Plaintiff takes a broader view, stating that he "and all of the .
. described comparators were all obligated to ensure that County
dollars were spent for proper purposes."

(Do c . 7 3 at 5.)

Though not a First Amendment case, the Supreme Court noted in
cDonnell Douglas v. Green that evidence showing that an employee
who was involved in acts of comparable seriousness was treated
differently would be especially relevant to the plaintiff's claim

8

that the employer's stated reason for the adverse action was
ext. 2
(1973) .

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 804

In considering the parameters of an acceptable comparator

here, cases addressing Title VII and equal protection cia

are

useful although the elements of a First Amendment association claim
ffer.

Courts have described the "similarly situated" inquiry

regarding suggested comparators in terms of the plaintiff showing
that the other employees' acts "were of comparable seriousness to
his own infraction, and that the employee engaged in the same
conduct without such differentiating or mitigating circumstances as
ould distinguish the employee's conduct or the empl
resulting treatment of the employee."
Penn

319

r's

Tyler v. Southeastern

vania Trasp. Authority, Civ. A. No. 99 4825, 2002 WL

896, at *3 (E.D. Pa. Nov. 8, 2002)

Haverford College, 868 F. Supp. 741, 745

(c

ing Anderson v.

(E.D. Pa. 1994)).

Relevant factors may include whether the comparators had the same
anager, see, e.g., Neely v. United States Postal Service,
pp'x 681, 684

(3d Cir. 2009)

307 F.

(not precedential), and whether the

While the McDonn 1 Douglas burden-shifting framework is
not applicable to a First Amendment retaliation cia , the Court of
ppeals for the Third Circuit has held that the causation analysis
in a First Amendment retaliation claim is the same as the causation
analysis applied to a Title VII retaliation claim.
Brennan v.
Norton, 350 F.3d 399, 420 (3d Cir. 2003); Nicholas v. Pa. State
Univ., 227 F.3d 133, 144 (3d Cir. 2000).
Brennan noted that cases
addressing an employer's alleged retaliation for protected activity
under Title VII is helpful to a First Amendment claim.
350 F.3d at
420.
9

employees were subject to the same standards and policies, see,
Burton v. Arkansas Secretary of State,

e.g.,

737 F.3d 1219 (8

Cir.

Courts have

2013) .

explicit
rejected the notion t
comparator anal is requires that the
compared employees engaged in "the exact same
offense."
[DJemanding t
t the
compared employees have engaged in precisely
identical conduct would make an employee's
conduct which was more serious than that of
the plaintiff irrelevant to the analysis.
"Common sense .
dictates that we reject
such an approach."
Ridout v. JBS USA,

716 F.3d 1079, 1085 (8 tr. Cir. 2013)

Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 488

1998)).

(quoting

(8 th Cir.

Burton noted that

[w]hile no employee is a precise clone of
another, the probative value of comparator
evidence
11 be greatest when the
circumstances faced by the putative
comparators are most similar to the
aintiff's.
Where evidence demonstrates
that a comparator engaged in acts of
"comparable seriousness" but was disciplined
differently, a factfinder may decide whether
the differential treatment is attributable to
discrimination or some other cause.
Burton, 737 F.3d at 1231 (citing Chaney v. Plainfield Healthcare

612 F.3d 908, 916

Ctr.,

S

(7th

Cir. 2010); Lynn, 160 F.3d at 489).

larly, we conclude that a fact finder may decide if the

treatment Plaintiff

rienced when he was terminated for the

which he submitted the expense at issue was in
engaging in conduct protected by the First
endment or for the reason stated by Defendants.
10

Cons

ring the

common denominator among Plaintiff and the suggested comparators to
be that all were involved with ir

arities related to submitting

expenses for payment, we cannot say as a matter of law from the
evidence submitted thus far that the comparators' actions were not
of comparable seriousness.
ult

Furthermore, it appears that the

te decisionmaking body in Plaintiff's case and those of the

debit card employees was the same, i.e., the County Commissioners
of Luzerne County.

Therefore, we do not preclude

s evidence on

relevance grounds under Federal Rule of Evidence 401.
We now turn to the consideration of whether this evidence
should nevertheless be excluded pursuant to Federal Rule of
Evidence 403 which provides that "[t]he court may exclude relevant
if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence."

Fed. R. Evid. 403.

We

conclude that the danger of unfair prejudice, confusion of the
issues, and misleading the jury are not bases to exclude comparator
evidence because

distinctions drawn by Defendants between

Plaintiff and the sugge

comparators will be introduced at trial

and fact finders are certainly capable of assessing the distinctions
and similarities presented.

We also do not find that undue delay,

wasting time, or needless presentation of cumulative evidence are
reasons for excluding evidence.

Should any of these problems arise

11

at trial, the Court is well-equipped to appropriately address the
atter at the time.
2.

Therefore, this Motion in Limine is denied.

Motion in Limine to Preclude Plaintiff from Introducing
Evidence or Referencing Pennsylvania's First Class County Code

With this motion, Defendants seek to preclude Plaintiff from
introducing evidence or referencing Pennsylvania's First Class
County Code, 16 P.S. § 7926, for the proposition that the
reimbursement of veterans' groups for Memorial Day expenses does
not require receipts to verify expenses incurred because Luzerne
County is not a county of the first class.

(Doc. 61 at 8.)

Plaintiff does not disagree that 16 P.S.
in Penns

vania's

§

7926 is contained

rst Class County Code but argues that the

provision, entitled "Memorial Day Organizations," by its "plain
language.

. indicates that it was intended to apply to all

counties" and the requirement that appropriations be made for the
decoration of graves does not require that receipts be supplied to
justify payment.

(Doc. 73 at 8-9.)

The basis of the argument is

that Philadelphia County is the only First Class County in the
Commonweal

and the provision specifically refers to "counties."

(Id.)

We need not get into the technicalities of the provision as we
conclude that a provision which applies to "Counties of the First
Class" should not be construed to apply to counties which are not
of the first class.
Therefore, this Motion in Limine is granted.

12

3.

Motion in Limine to Preclude Plaintiff from Calling Witnesses
Other than Plaintiff

With this motion Defendants seek to preclude Plaintiff from
calling witnesses other than himself pursuant to

ral Rule of

Civil Procedure 37(c) (1) because he did not provide any names to
Defendants as required by Federal Rule of Civil Procedure
26 (a) (1) (A) (I), and did not respond to an interrogatory requesting
Plaintiff to identify witnesses whom he intended to testify at
trial.

(Doc. 61 at 9-10.)

Plainti

states Defendants have not cited any case in support

of their argument, he has not

led to comply with pretrial

deadlines regarding witnesses, his responses to interrogatories and
document requests indicate numerous potential witnesses, and his
counsel has provided Defendants with a list of all persons with
discoverable information.

(Doc. 73 at 9-11.)

Defendants did not address this motion or Plaintiff's response
in their reply brief.
We conclude this motion is properly deni

Should Plaintiff

not comply with pretrial disclosure requirements, Defendants may
file a motion at

at time.

Motion in Limine to Preclude Plaintiff from Introducing
Newspaper Articles or Editorials Concerning His County
Employment

With this motion, Defendants anticipate Plaintiff will attempt
to introduce newspaper articles, including editorials, regarding
his job performance and/or termination and they seek to preclude
13

him from doing so on the basis that newspaper articles are
generally considered hearsay and are only admitted in exceptional
circumstances.

(Doc.

61 at 10.)

Plaintiff responds that he does not intend to introduce such
aterial to prove the truth of the matter asserted but,

rat

,

to

substantiate his claim for compensatory damages based on emotional
and mental distress.

(Doc. 73 at 12.)

Plaintiff claims that the

articles and editorials "show the breadth of the public's knowledge
of the circumstances surrounding [his] termination as stated by the
Defendants, which al
humiliating."

tions are baseless, embarrassing and

(Id. )

We conclude that the best course of action in this matter is
to hold a decision on the motion in abeyance as a proper
determination can only be made in the context of the circumstances
in which Plaintiff seeks to introduce such information at trial.

5.

Motion in Limine to Preclude Plaintiff from Introducing
Evidence of an Alleged List of Individuals Who Supported
Plaintiff
Defendant asserts that, in his responses to discovery

requests,

Plaintiff produced a purported list of individuals who

allegedly support

his job performance and Plaintiff should be

recluded from introducing this list at trial.

(Doc.

61 at

11.)

This motion is deemed moot in that Plaintiff states he does not
intend to introduce this list as evidence at trial.
13. )

14

(Doc.

73 at

6.

Motion in Limine to Preclude Plaintiff from Introducing
Evidence Regarding His Wife's Death
Although Defendants speculate that Plaintiff may seek to

introduce evidence relating his wife's death to the loss of his
health

its

(Doc.

61 at 12), Plaintiff responds that he does

not intend to introduce such evidence (Doc. 73 at 13).

Therefore,

this motion is deemed moot.
7.

Motion in Limine to Preclude Plaintiff from Testifying as to
Medical Causation and Prognosis Requiring Expert Testimony
Noting that Plaintiff has not produced any medical evidence in

support of his physical or emotional injuries nor identified any
expert witness,

Defendants assert that, based on Federal Rule of

Evidence 701, Plaintiff should not be allowed to testify as to the
extent of his alleged physical and/or emotional injuries which are
not based upon his first-hand knowledge and observation, are not
readily apparent to lay persons, or which do not assist the jury in
their role as factfinder.

(Doc. 61 at 13-14.)

Plaintiff responds

that he does not intend to testify as to any matter which requires
expert testimony.

(Doc. 73 at 13.)

Therefore, this motion is

deemed moot.
III. Conclusion
The Court recognizes that witnesses may, deliberately or
inadvertently, wander into areas previously proscribed by rulings
of this Court.

In such circumstances, the Court may have to

reconsider its rulings and,

in certain circumstances, even reverse

15

them.

Hopefully, this can be avoided by scrupulous preparation by

counsel.

However, witnesses may deliberately try to inject into

the case matters which the Court has ruled are inappropriate under
the circumstances of the pleadings.

Whatever the cause, there may

be need for the Court to reconsider some of the rulings issued on
otions filed by counsel in this case.
The Court has thoroughly considered the arguments presented by
counsel regarding Defendants' motions.
continued assiduous preparation will he

It is our hope that
counsel

this case thoroughly and directly to a jury.

presenting

It is also our hope

that the rulings on the motions filed will enable counsel,
especially in preparation of things like opening statements and
examination of jurors, to move the trial along expeditiously and
that only appropriate questions will be raised and discussed in the
courtroom before the jury.

An Order consistent with the foregoing

emorandum will be filed contemporaneously herewith.

lutf l~-+-+-

t

RICHARD P. CONABOY
United States District
DATED:

16