Werkheiser et al v. Hess et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry) re 29 MOTION to Supplement Complaint filed by Harold Werkheiser Signed by Honorable A. Richard Caputo on 1/5/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HAROLD WERKHEISER,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-CV-1001
(JUDGE CAPUTO)

POCONO TOWNSHIP, et. al.,
Defendants.
MEMORANDUM
Presently before the Court is Plaintiff, Harold Werkheiser’s (“Plaintiff”) Motion for
Leave to File Supplemental Complaint. (Doc. 29.) Plaintiff seeks to supplement his
Amended Complaint. (Doc. 7.) Defendants, Pocono Township (“Township”), Frank Hess
and Henry Bengel (collectively “Defendants”) oppose Plaintiff’s motion, arguing the claim
for relief sought to be added does not relate to the original claim for relief or, in the
alternative, supplementation would be futile and/or prejudicial to Defendants. (Doc. 33.)
Because the claim Plaintiff seeks to add is only indirectly related to his original claim, the
motion will be denied.
I. Background
The facts relevant to the current motion are as follows: Plaintiff was an elected official
serving on Board of Supervisors of Pocono Township, Monroe County, Pennsylvania, which
was a Second Class Township. (Doc. 7, Amended Complaint (“Am. Compl.”), ¶¶ 2-3.)
Plaintiff was elected to a six (6) year term commencing in 2007 and expiring at the end of
2013. (Am. Compl., ¶ 2.) During part of Plaintiff’s tenure as supervisor, Defendants Frank
Hess and Henry Bengel, also served as the three (3) member Board of Supervisors. (Id.
at ¶ 4.)
Township supervisors are permitted hold separate positions of employment with the
Township. (Id. at ¶ 6.) In 2008, Plaintiff was appointed Township Roadmaster and was

reappointed to this position every year thereafter until 2013. (Id. at ¶ 7.) In 2011, Defendant
Hess took over as Township administrator. (Id. at ¶ 11.)
In January 2012, Defendant Hess became temporarily disabled and took leave from
the Township for ten (10) days, during which time, Mr. Frank Froio, took over his duties. (Id.
at ¶ 12.) Despite opposition by Plaintiff, Mr. Froio was subsequently hired by the Township
upon motion by Defendant Bengel and second by Defendant Hess. (Id. at ¶ 13.) Following
the hiring, Plaintiff continued to voice his objections regarding Mr. Froio, as well as
objections related to other Township matters. (Id. at ¶ 16.) In December 2012, Defendants
Hess and Bengel decided not to reappoint Plaintiff as Roadmaster for the year 2013. (Id.
at ¶ 14.) However, Plaintiff continued to be a salaried Township employee working full-time
with the title of Assistant Secretary/Assistant Treasurer. (Proposed Amended Complaint
(“Proposed”), Doc. 29-1. ¶ 8.)
On January 6, 2014, after a ballot referendum, the Township became a First Class
Township and five new supervisors were appointed. (Proposed, ¶¶ 4, 6.) During the
Township meeting on January 6, 2014, Plaintiff’s employment as Assistant
Secretary/Assistant Treasurer was not continued. (Id. at ¶ 9.) Plaintiff alleges his
employment was not continued in retaliation for his filing of the current lawsuit. (Docs. 29;
30.) As such, Plaintiff filed the current motion and brief in support on September 24, 2015.
(Docs. 29-30.) Defendants filed a response in opposition on October 8, 2015 (Doc 33.) and
Plaintiff filed a reply on October 26, 2015 (Doc. 34.).
II. Discussion
Count I of Plaintiff’s Amended Complaint alleges that he was terminated as
Roadmaster in retaliation for exercising his First Amendment Rights, while Count II alleges

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violations of the Pennsylvania Second Class Township Code and Sunshine Law.1 (Doc. 7.)
Plaintiff has moved to supplement his amended complaint to add an additional count based
on his allegation that the current lawsuit “was a substantial or motivating factor in the
decisions of Pocono Township not to continue plaintiff in Township employment on January
6, 2014, and not to re-employ him thereafter.” (Doc 29-1, ¶ 16.) Plaintiff’s proposed
supplemental complaint alleges he “was not continued in Township employment on January
16, 2014, because of activity protected by the First Amendment. . . ,“ i.e., filing a lawsuit.
(Id. at ¶ 17. ) Plaintiff avers that the supplementation will promote judicial economy and a
complete and speedy resolution of the disputes between the parties because the
supplemental complaint alleges claims that are based on the original claims. (Doc. 30, 8.)
Defendants oppose Plaintiff’s request.
Plaintiff moves to supplement his amended complaint pursuant to Federal Rule of
Civil Procedure 15(d). Rule 15(d), in relevant part, provides the following:
(d) Supplemental Pleadings. On motion and reasonable notice, the court
may, on just terms, permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.
Fed. R. Civ. P. 15. “An application for leave to file a supplemental pleading, like an
application for leave to amend a complaint, is addressed to the sound discretion of the trial

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Plaintiff’s Amended Complaint alleges violations of his First Amendment rights by
Defendants Hess and Bengel in their individual capacities. (Doc. 7.) Defendants Hess and
Bengel filed a motion to dismiss arguing they were entitled to qualified immunity on these
claims. (Doc. 9.) This Court issued an order denying the motion to dismiss and determining
that the defendants were not entitled to qualified immunity on the First Amendment claims.
(Doc. 15.) This Court’s decision was vacated after appeal was filed with the Third Circuit
Court of Appeals, and the matter was remanded. (Docs. 17; 23.) The Third Circuit ruled that
Defendants Hess and Bengel were entitled to qualified immunity on Count I of Plaintiff’s
Amended Complaint. See Werkheiser v. Pocono Twp., 780 F. 3d 172 (3d Cir. 2015). This
Court then issued an order dismissing the First Amendment claims of Count I as against
Defendants Hess and Bengel in their individual capacities. (Doc. 25.)
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court.” Nottingham v. Peoria, 709 F. Supp. 542, 544 (M.D. Pa. 1988) (citing Bates v.
Western Electric, 420 F.Supp. 521, 525 (E.D.Pa.1976)). The court is to consider factors
such as: “the promotion of a justiciable disposition of the case, the delay or inconvenience
the allowance of such a pleading will cause, and the prejudice to the rights of the parties to
the action.” Nottingham, 709 F. Supp.at 544 (citing Wright and Miller, Federal Practice and
Procedure § 1509 at 542–43)). “[A] court may deny leave to file a supplemental pleading
where that pleading relates only indirectly, if at all, to the original complaint and the alleged
cause of action arose out [sic] an entirely unrelated set of facts and related to a defendant
not implicated in the original complaint.” Nottingham, 709 F. Supp. at 544 (citations
omitted).
Despite Plaintiff’s assertion that much of the same evidence will be presented to
prove his supplemental claim, I cannot agree. The claims are not based on the same factual
scenarios. The amended complaint alleges retaliation by Defendants Hess and Bengel
based on the exercise of Plaintiff’s First Amendment rights as a supervisor. The purported
supplemental claim alleges retaliation by five separate supervisors operating under a
different form of township governance and appointed after the action underlying the
amended complaint was taken. The supplemental claim is, at best, indirectly related to the
amended complaint. See Dockery v. Wetzel, No. 3:CV-11-1368, 2013 WL 664931 (M.D.
Pa., February 22, 2013). Therefore, I will not permit Plaintiff to supplement the amended
complaint.
III. Conclusion
For the above stated reasons, Plaintiff’s Motion for Leave to File Supplemental
Complaint (Doc. 29.) will be denied.
An appropriate order follows.
January 5, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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