Keller v. Lackawanna County et al

Filing 39

MEMORANDUM (Order to follow as separate docket entry) re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Lackawanna County, William Browning. Signed by Honorable Malachy E Mannion on 8/1/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LAURA KELLER,

:

Plaintiff,

:

v.

CIVIL ACTION NO. 3:15-2511

:

(JUDGE MANNION)

LACKAWANNA COUNTY,
:
WILLIAM BROWNING,
and AMERICAN FEDERATION OF :
STATE, COUNTY AND MUNICIPAL
EMPLOYEES, AFL-CIO, DISTRICT :
COUNCIL 87,
:
Defendants.
MEMORANDUM
Presently before the court is a third partial motion to dismiss filed by the
defendants Lackawanna County and William Browning (collectively, the
“County defendants”). (Doc. 33). The County defendants seek to dismiss
Count I and Count III in the plaintiff’s, Laura Keller’s, second amended
complaint. (Doc. 28). The County defendants also seek to strike the plaintiff’s
demand for attorney’s fees in Count III. Based on the foregoing, the County
defendants’ motion will be GRANTED IN PART and DENIED IN PART.
I.

FACTUAL BACKGROUND
This case arises out of the June 16, 2016 termination of the plaintiff by

the defendant, Lackawanna County. The plaintiff was an employee of

Lackawanna County and worked in the Office of Youth and Family Services
for 23 years. (Doc. 28 ¶1). The defendant, William Browning, was the
plaintiff’s supervisor. (Id. ¶57). At an unspecified time prior to April 27, 2015,
the plaintiff provided a detailed doctor’s note to her employer to notify them
of upcoming absences.1 (Id. ¶14). The plaintiff believed the doctor’s note
provided all that was necessary to comply with regulations set forth in the
Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §2601 et seq. (Id.).
After the doctor’s note was received by the County defendants, the County
defendants never provided the plaintiff with a date to return any additional
FMLA certification. (Id. ¶15). Nonetheless, on June 8, 2015, the plaintiff
provided an FMLA certification, which was subsequently denied by the County
defendants. (Id. ¶16). The County defendants did not advise the plaintiff as
to what was allegedly deficient in the certification that warranted its denial or
provide a cure period to fix the certification. (Id. ¶¶17–18). The plaintiff was
subsequently terminated on or about June 16, 2015. (Id. ¶20). The plaintiff
received a termination letter, which specifically noted the alleged deficiencies

1

The plaintiff has not indicated in her second amended complaint why
absences were requested. The plaintiff states in her brief in opposition that
she suffers from a variety of mental disorders, including anxiety, depression,
and panic disorder. (Doc. 37 at 2).
2

with the FMLA certification and the absences from work as some of the
causes for her firing. (Id.).
After the County defendants terminated the plaintiff, the defendant,
American Federation of State, County and Municipal Employees, AFL-CIO,
District Council 87 (“The Union”), settled the plaintiff’s grievance with
Lackawanna County. (Id. ¶28). The Union did this on the plaintiff’s behalf
without her approval and without submitting the claim to arbitration. (Id.). The
plaintiff alleged the Union and Lackawanna County conspired to deprive her
of her contractual rights and alleged that she has written documentation
purporting to show a conspiracy. (Id.).

II.

PROCEDURAL HISTORY
This case was commenced in the United States District Court for the

Middle District of Pennsylvania on December 30, 2015. (Doc. 1). On January
20, 2016, the County defendants filed their first partial motion to dismiss.
(Doc. 9). On January 22, 2016, the plaintiff filed a first amended complaint,
mooting the County defendants’ first motion. (Doc. 11). On February 5, 2016,
the County defendants filed a second partial motion to dismiss. (Doc. 17). On
October 17, 2016, the plaintiff filed a second amended complaint, mooting the
3

County defendants’ second partial motion to dismiss. (Doc. 28). In her second
amended complaint, the plaintiff alleged six counts: (1) interference under the
FMLA against the County defendants; (2) retaliation under the FMLA against
the County defendants; (3) breach of contract against the County defendants
and the Union; (4) breach of the duty of fair representation against the Union;
(5) discrimination and retaliation under the Americans with Disabilities Act
(“ADA”) as amended and the Pennsylvania Human Relations Act (“PHRA”)
against the County defendants; and (6) a violation of the PHRA against the
defendant William Browning in his individual capacity.
On November 7, 2016, the County defendants filed the instant, third
partial motion to dismiss, with a brief in support filed on November 29, 2016.
(Docs. 33, 36). The County defendants argue Count I (Interference) and
Count III (Breach of Contract) in the plaintiff’s second amended complaint
should be dismissed. In addition, the County defendants seek to strike the
plaintiff’s demand for attorney’s fees in County III. On December 9, 2016 , the
plaintiff filed a brief in opposition to the instant motion. (Doc. 37). On
December 23, 2016, the County defendants filed a reply brief. (Doc. 38). The
motion is now ripe for review.

4

III.

STANDARDS OF REVIEW
A.

Rule 12(b)(6)

The defendants’ motion to dismiss is brought, in part, pursuant to the
Federal Rule of Civil Procedure Rule 12(b)(6). This rule provides for the
dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim
upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The moving party
bears the burden of showing that no claim has been stated, Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if,
accepting all of the facts alleged in the complaint as true, the plaintiff has
failed to plead “enough facts to state a claim to relief that is plausible on its
face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating
“no set of facts” language found in Conley v. Gibson, 355 U.S. 41, 45–46
(1957)). The facts alleged must be sufficient to “raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for
enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” of necessary elements of the plaintiff’s cause of action. Id. at 556.
Furthermore, in order to satisfy federal pleading requirements, the plaintiff
must “provide the grounds of his entitlement to relief,” which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a
5

cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly,
550 U.S. at 555).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Lastly, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

6

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility."
Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

B.

Rule 12(f)

The defendants’ request to strike attorney’s fees in the second
amended complaint is only proper pursuant to Federal Rule of Civil Procedure
12(f).2 Under Rule 12(f), a party may make a motion to strike from a pleading
“any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” FED. R. CIV. P. 12(f). “The purpose of a motion to strike
is to clean up the pleadings, streamline litigation, and avoid unnecessary
forays into immaterial matters.” McInerney v. Moyer Lumber & Hardware, Inc.,
244 F. Supp. 2d 393, 402 (E.D. Pa. 2002). “Motions to strike are decided on
the pleadings alone.” Deery v. Crystal Instruments Corp., No. 13-198 (WJM),
2013 WL 4517867 (D.N.J. Aug. 26, 2013).

2

The County defendants do not cite to Rule 12(f), but it is clear in the
briefing that this is their request.
7

Courts may exercise “considerable discretion” when reviewing these
type of motions. Id. (quoting Tonka Corp. v. Rose Art Indus., Inc., 836 F.
Supp. 200, 217 (D.N.J. 1993)). However, striking portions of a plaintiff’s
pleading is considered a “drastic remedy” that is appropriate only “when the
grounds for striking it are readily apparent from the face of the pleadings.” Id.
(quoting Jurista v. Amerinox Processing, Inc., 492 B.R. 707, 740 (D.N.J.
2013)). It is generally disfavored and should be used “sparingly” only “when
required for the purposes of justice.” Landau v. Viridian Energy PA LLC, 223
F. Supp. 3d 401, 408 (E.D. Pa. 2016) (quoting DeLa Cruz v. Piccari Press,
521 F. Supp. 2d 424, 428 (E.D. Pa. 2007)). Motions to strike will usually 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 in the case.” Deery, 2013 WL 4517867, at *1 (quoting River Rd.
Dev. Corp. v. Carlson Corp., N.E., No. 89-7037, 1990 WL 69085, at *3 (E.D.
Pa. May 23, 1990)).

IV.

DISCUSSION

8

In their motion, the County defendants argue Count I (Interference)
should be dismissed because it is redundant and identical to Count II
(Retaliation) and because the plaintiff did not allege a monetary loss. The
defendants also argue Count III (Breach of Contract) should be dismissed
because there is no underlying conspiracy between the County defendants
and the Union. The County defendants’ motion to dismiss Count I and Count
III will be denied in part and granted in part.

A.

The FMLA

The purpose of the FMLA is, in part, to allow employees to “balance the
demands of the workplace with the needs of families” and “to entitle
employees to take reasonable leave for medical reasons.” 29 U.S.C.
§2601(b)(1)–(2). It provides that an eligible employee “shall be entitled to a
total of 12 work weeks of leave during any 12-month period . . . [b]ecause of
a serious health condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C. §2612(a)(1)(D). Once
an employee returns from FMLA leave, the employee is entitled to return to
the same position they had prior to leaving, or to an equivalent position. 29
U.S.C. §2614(a)(1). However, this right to be reinstated does not entitle the
9

restored employee to a right, benefit, or position to which the employee would
not “have been entitled had the employee not taken the leave.” Id.
§2614(a)(3)(B).
Before taking leave, an employee must give their employer notice
“stat[ing] a qualifying reason for the needed leave.” 29 C.F.R. §825.301(b);
see also Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149, 153 (3d Cir.
2015). The employer may also require its employees to support their requests
for leave with a certification issued by a health care provider. 29 U.S.C.
§2613(a). Where the employee requests leave for him or herself, the medical
certification will be sufficient if it states the following: (1) the date on which the
serious health condition began; (2) the probable duration of the condition; (3)
relevant medical facts; (4) a statement that the employee is unable to perform
the functions of her position; (5) the dates and duration of any planned
medical treatment for intermittent leave; and (6) a statement of medical
necessity for intermittent leave or reduced leave schedule. Id. §2613(b).
An employee does not need to specifically and expressly request leave
under the FMLA to qualify for protection. 29 C.F.R. §825.301(b). The
employee does, however, need to provide some notice to make the employer
aware that the employee needs FMLA-qualifying leave and how long that

10

leave will be. Id. §825.302(c). But, the burden is on the employer to ensure
that the employee is made aware of their rights under the FMLA and that the
qualifying leave is designated as such. Id. §825.300.
Once an employee requests leave the employer is responsible for
designating it as FMLA-qualifying or not and the employer must advise the
employee if it is. Id. §825.300(b)(1), (d). In addition, the employer must, within
a reasonable time, provide the employee with “written notice detailing the
specific expectations and obligations of the employee and explaining any
consequences of a failure to meet these obligations,” including whether the
leave will be counted as FMLA leave and the employee’s right to restoration.
Id. §825.300(c)(1). In “circumstance[s] where the employer does not have
sufficient information about the reason for an employee’s use of leave, the
employer should inquire further of the employee . . . to ascertain whether [the
requested] leave is potentially FMLA-qualifying.” Id. §825.301(a).

B.

The Plaintiff’s Interference Claim (Count I)

The FMLA expressly provides that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.” 29 U.S.C. §2615(a)(1).
11

An interference claim protects a “series of prescriptive substantive rights for
eligible employees, often referred to as [] [entitlement[s] . . . which set floors
for employer conduct.” Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d.
Cir. 2005). Unlike a retaliation claim, an employee alleging interference need
not show discriminatory intent on the part of the employer and “the employer
cannot justify its actions by establishing a legitimate business purpose for its
decision.” Id. at 119–120. An employee can bring both interference and
retaliation claims under the FMLA against an employer. Thus, “firing an
employee for a valid request for FMLA leave may constitute interference with
the employee’s FMLA rights as well as retaliation against the employee.”
Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009).
In order to establish a valid claim of interference the employee only
needs to show that he was entitled to benefits under the FMLA and that he or
she was denied them. Callison, 430 F.3d at 119. Ultimately, the employee
must establish that: (1) the employee was eligible under the FMLA; (2) the
defendant was an employer subject to the FMLA’s requirements; (3) the
plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the
defendant of his or her intention to take FMLA leave; and (5) the plaintiff was

12

denied benefits to which he or she was entitled under the FMLA. Capps v.
Mondelez Global, LLC, 847 F.3d 144, 155 (3d Cir. 2017).
United States Department of Labor (“USDOL”) regulations implementing
the FMLA expressly provide that any violations of the law itself or its
regulations “constitute interfering with, restraining, or denying the exercise of
rights.” 29 C.F.R. §825.220(b); see also Conoshenti v. Pub. Serv. Elec. &
Gas. Co., 364 F.3d 135, 142 (3d Cir. 2004). This would include “not only
refusing to authorize FMLA, but discouraging an employee from using such
leave[,]” in addition to “manipulation” by the employer in an attempt to avoid
FMLA responsibilities. Id.; see also id. Interfering with an employee’s rights
also includes an employer’s failure to advise the employee of their rights
under the FMLA. Conoshenti, 364 F.3d at 142–143. In order to prevail on an
interference claim based on a failure to advise, however, the employee must
show prejudice by “establishing that this failure to advise rendered [the
employee] unable to exercise that right in a meaningful way, thereby causing
injury.” Id. at 143 (relying on Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81(2002)). Here, the plaintiff’s interference claim is premised on the
County defendants’ alleged failure to notify her of her FMLA obligations

13

regarding certification and their alleged failure to provide an opportunity to
cure her deficient certification. (Doc. 28 ¶¶13–17).
In Hansler v. Lehigh Valley Hospital Network, 798 F.3d 149, 158 (3d Cir.
2015), the Third Circuit Court of Appeals determined that a plaintiff employee
stated a valid claim for interference where the employer failed to advise the
employee of deficiencies in her medical certification and failed to provide her
with an opportunity to cure those deficiencies. The court turned to USDOL
regulations which govern how employers are to respond to perceived
deficiencies in medical certifications. 798 F.3d at 153. In particular, these
regulations provide that an employer must “advise an employee whenever the
employer finds a certification incomplete or insufficient, and shall state in
writing what additional information is necessary to make the certification
complete and sufficient.” 29 C.F.R. §825.305(c).
A certification is incomplete where the “employer receives a certification,
but one or more of the applicable entries have not been completed.” Id. A
certification is also insufficient if the “employer receives a complete
certification, but the information provided is vague, ambiguous, or non
responsive.” Id. If the employer determines that a certification is either
incomplete or insufficient, the employer must give the employee seven

14

calender days to cure any deficiency before the employer can deny the
certification. Id.; see also Hansler, 798 F.3d at 153.
Hansler is directly applicable to the facts of this case. As alleged in the
second amended complaint, the plaintiff provided medical certification in the
form of a doctor’s note to the County defendants that was sufficient to comply
with FMLA regulations. (Doc. 28 ¶13). The County defendants never advised
the plaintiff of her obligation to provide any additional certification, but,
nonetheless, she provided a certification to her employer. (Id. ¶¶14–15). The
County defendants denied the certification and ultimately terminated the
plaintiff. (Id. ¶¶15, 19). The County defendants did not advise the plaintiff what
the deficiencies were in the certification and never provided a cure period
before discharging her. (Id. ¶¶16–17).
The facts alleged by the plaintiff here are nearly identical to those
alleged by the plaintiff in Hansler. However, unlike the plaintiff in Hansler, the
plaintiff has not alleged that she suffered any prejudice as a result of the
County defendants’ failure to provide notice of her FMLA obligations and an
opportunity to cure. See Conoshenti, 364 F.3d at 143. In Hansler, the court
found that the employee successfully alleged prejudice where she alleged that
“[h]ad [the defendant employer] properly requested that [her] physician

15

provide more information to show a serious health condition, [her] physician
would have been [in] a position to provide the full diagnosis of [her] chronic
health conditions,” thereby entitling the employee to FMLA-qualifying leave.
798 F.3d at 158. Thus, had the employer properly requested more
information, the employee would have been able to provide such information
instead of being fired. Id. at 158. The Hansler court found that, when coupled
with the employee’s firing, this was sufficient to show prejudice by rendering
the plaintiff unable to exercise her rights under the FMLA in a meaningful way.
Id.
Here, the plaintiff has alleged a lack of notice and opportunity to cure,
but she has not made an allegation of “prejudice” in her second amended
complaint. Nor has she alleged that had she been provided with more
information and an opportunity to cure she would have been in a position to
provide the requested information and cure any deficiencies. Nonetheless,
based on the allegations thus far and the plaintiff’s subsequent firing, the
court finds that an amendment would not be “futile” and would not cause
“undue delay[ or] prejudice." Alston, 363 F.3d at 236. Accordingly, the court
will allow the plaintiff a final opportunity to amend her complaint to satisfy the
pleading standards set forth in Twombly and Iqbal.

16

Despite the clear application of Hansler to this case, the County
defendants argue that the plaintiff’s interference claim must be dismissed
because it is identical to her second claim of retaliation. They assert that the
interference claim should be dismissed and analyzed under the retaliation
claim in Count II. The defendants rely on Stephenson v. JLG Industries, Inc.,
No. 1:09-CV-1643, 2011 WL 1304625 (M.D. Pa. Mar. 31, 2011) and Mascioli
v. Arby’s Restaurant Group, Inc., 610 F. Supp. 2d 419 (W.D. Pa. 2009) for
support. The County defendants’ reliance on these cases is misplaced and
Hansler is clearly controlling.
In Stephenson, the court granted the employer defendant’s motion for
summary judgment on an interference claim primarily because testimony
showed that the defendant never denied or interfered with the plaintiff’s rights
under the FMLA. 2011 WL 1304625, at *4. In Stephenson, the plaintiff
requested and was granted intermittent FMLA leave but continued to be
disciplined for missed time. Id. at *1. The plaintiff was being investigated for
misuse of his FMLA leave and refused to take a drug and alcohol test when
requested. Id. at *2. The court ruled that the investigations into the plaintiffs
use of FMLA leave did not constitute interference because other courts had
repeatedly upheld the termination of employees following similar

17

investigations. Id. at *4. Finally, the court rejected the plaintiff’s claim that
termination of his employment alone constituted an “ultimate act of
interference.” Id. at *5. The court properly classified this argument as falling
under a retaliation theory. Id.
Stephenson has no application to the issues presented here. As an
initial matter, in Stephenson, the court had before it a motion for summary
judgment, not a motion to dismiss. At this stage the plaintiff need only allege
“enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” of the necessary elements for FMLA interference. Twombly, 550
U.S. at 556. Moreover, the evidence presented to the court in Stephenson
clearly showed that the employee was discharged for reasons other than the
FMLA leave. Most importantly, the plaintiff in Stephenson did not allege her
employer failed to provide a cure period triggering the application of Hansler.
Here, the plaintiff is not alleging that her firing constituted the act of
interference itself. Cf. Stephenson, 2011 WL 1304625, at *5. She is alleging
specific acts prior to the termination that led to her denial of leave and,
thereafter, her termination.
In Mascioli, the court ruled that an FMLA claim based upon an
employer’s termination of an employee in anticipation of future leave was in

18

reality a FMLA retaliation claim. 610 F. Supp. 2d at 430–431. Like
Stephenson, Mascioli also resolved a motion for a summary judgment. See
id. at 423. In Mascioli, the employee plaintiff was never denied FMLA leave.
Instead, she alleged her termination was interference because the employer
fired her in order to avoid having to provide her with future leave to undergo
testing and treatment for her medical needs, an alleged act of manipulation.
Id. at 430. The plaintiff was not, however, actually denied or discouraged from
taking initial leave. Id. Instead, the initial date that she requested off was not
FMLA-qualifying. Id.
Mascioli and Stephenson may be analogous, but they are not applicable
here. In the case at hand, the plaintiff requested leave, was not provided with
information regarding her obligations with respect to taking leave, provided a
certification to her employer, and was denied leave without an opportunity to
cure any deficiencies in that certification. As explained above, the plaintiff’s
interference claim is based upon the employer’s failure to provide the plaintiff
with information and the failure to provide a cure period. It is not based on the
termination itself. Accordingly, the County defendants’ reliance on Mascioli
and Stephenson is misplaced.

19

Next, the County defendants argue that the plaintiff’s interference claim
should be dismissed because the plaintiff failed to allege that she suffered
any monetary losses. The County defendants rely on Chapman v. UPMC
Health System, 516 F. Supp. 2d 506 (W.D. Pa. 2007) for their argument. In
Chapman, the court stated, “Courts have refused to recognize a valid claim
for interference in the absence of any injury.” 516 F. Supp. 2d at 519 (quoting
Alifano v. Merck & Co., 175 F. Supp. 2d 792, 794 (E.D. Pa. 2001)). The
County defendants rely on this statement as support for their position. The
County defendants have misinterpreted Chapman’s explanation of the law.
Chapman’s explanation of the law speaks of injury, not monetary loss.
The reference to “injury” is a reference to prejudice and the need to allege
prejudice. See Alifano, 175 F. Supp. 2d at 794 (“In order to state a cause of
action for interference . . . [the plaintiff] must claim that the alleged
interference caused her to forfeit her FMLA protections.” (emphasis added)).
As explained by the Third Circuit in Hansler:
[T]he plaintiff “will show an interference with his right
to leave under the FMLA . . . if he is able to establish
that this failure to advise rendered him unable to
exercise that right in a meaningful way, thereby
causing injury.” Put another way, we found a cause of
action for notice interference in the event the plaintiff
was able to show prejudice as a result of the violation.

20

798 F.3d at 157 (quoting Conoshenti, 364 F.3d at 143) (internal citation
omitted). As previously explained, this court will allow the plaintiff to amend
her complaint a final time to allege injury or, said another way, prejudice.
Therefore, the County defendants’ motion to dismiss Count I will be granted,
in part. The plaintiff’s interference claim will not be dismissed based on a
failure to allege “monetary loss,” but will be dismissed without prejudice and
with leave to amend based on a failure to allege injury.

C.

The Plaintiff’s Breach of Contract Claim (Count III)

The County defendants also seek to dismiss Count III (Breach of
Contract) in the plaintiff’s second amended complaint. The County defendants
argue this count should be dismissed because the plaintiff failed to
demonstrate an underlying conspiracy between Lackawanna County and the
Union to breach the collective bargaining agreement. The court disagrees and
finds that the plaintiff’s allegations are sufficient at this stage to move forward.
The plaintiff is a public employee and her breach of contract claims are
governed by Pennsylvania law and, in particular, Pennsylvania’s Public
Employee Relations Act (“PERA”), 43 PA. STAT. §1101.101, et seq.; Lopez v.
Transp. Workers Union Local 234, No. 16-05515, 2017 WL 2633468, at *3
21

(E.D. Pa. June 19, 2017). Pennsylvania law provides that “an employee has
no cause of action against her employer for breach of contract where the
employment relationship is governed by a collective bargaining agreement.”
Lopresti v. County of Lehigh, No. 12-2832, 2013 WL 2449190, at *9 (E.D. Pa.
June 6, 2013), aff’d, 572 F. App’x 133 (3d Cir. 2014) (citing Ziccardi v.
Commonwealth, 456 A.2d 979, 981 (Pa. 1982) and Runski v. Am. Fed’n of
State, Cnty. & Mun. Emp., Local 2500, 598 A.2d 347, 350 (Pa. Commw. Ct.
1991)). This is true even when the union refuses to take the case to
arbitration. Lopez, 2017 WL 2633468, at *3 (citing Ziccardi, 456 A.2d at 981).
There is an exception to this rule, however, where an employee alleges and
shows by specific facts that an employer actively participated in the union’s
bad faith or that the employer conspired with the union to deny the employee
his or her rights under the collective bargaining agreement. Id. (collecting
Pennsylvania and district court case law); Reed-Seeger v. Sch. Dist. of Phila.,
No. 14-0287, 2014 WL 7404133, at *3 (E.D. Pa. Dec. 30, 2014).
Here, the plaintiff has alleged a conspiracy between the County
defendants and the Union to breach the collective bargaining agreement.
(Doc. 28 ¶26). The plaintiff has also alleged that she has written
documentation proving a conspiracy between the County defendants and the

22

Union to breach the collective bargaining agreement. (Id. ¶27). The plaintiff’s
allegation of conspiracy and her allegation that she has a written document
showing the conspiracy are sufficient at this stage of the litigation. Cf. ReedSeeger, 2014 WL 7404133, at *3 (reaching the same conclusion at the motion
to dismiss stage). Whether the plaintiff can ultimately prove the conspiracy is
a question the court need not resolve at this time. Accordingly, the County
defendants’ motion to dismiss Count III will be denied.

D.

The County Defendants’ Request to Strike Attorney’s Fees

Lastly, the County defendants seek to strike the plaintiff’s request for
attorney’s fees in Count III. As stated earlier, striking portions of a plaintiff’s
pleading is a drastic remedy and will usually be denied. Deery, 2013 WL
4517867, at *1. It is true that Pennsylvania law does not allow awards for
attorney’s fees in suits for ordinary breach of contract (the “American Rule”)
“unless there is express statutory authorization, a clear agreement of the
parties[,] or some other established exception.” McMullen v. Kutz, 985 A.2d
769, 775 (Pa. 2009). However, neither the plaintiff or the County defendants
have provided the collective bargaining agreement to the court. Without this
information, the court cannot state with certainty that the plaintiff’s request for
23

attorney’s fees is redundant, immaterial, impertinent, or scandalous to such
a degree that striking it from the plaintiff’s pleading would be proper at this
stage of the litigation. Cf. Deery, 2013 WL 4517867, at *2. As such, the
County defendants’ request is premature and the court will deny their request
to strike attorney’s fees from Count III at this time.
V.

CONCLUSION
In accordance with the above, the County defendants’ third partial

motion to dismiss, (Doc. 33), will be GRANTED IN PART and DENIED IN
PART. The County defendants’ motion to dismiss the plaintiff’s interference
claim (Count I) will be GRANTED, in part. The plaintiff’s interference claim
(Count I) will be dismissed without prejudice and the court will allow the
plaintiff to amend her second amended complaint, (Doc. 28), a final time to
allege prejudice and injury. The County defendants’ motion to dismiss the
plaintiff’s breach of contract claim (Count III) will be DENIED. The County
defendants’ request to strike attorney’s fees from Count III will also be
DENIED. An appropriate order will follow.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: August 1, 2017
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