AIRGOOD v. THE TOWNSHIP OF PINE et al
Filing
46
ORDER. For the reasons stated more fully in the Memorandum filed herewith, the Motion to Partially Dismiss Amended Complaint filed by Defendants Township of Pine and Clyde Moore (Doc. 33 ) is GRANTED IN PART and DENIED IN PART. The motion (Doc. [33 ]) is DENIED insofar as it seeks dismissal of: (a) Plaintiff's request for punitive damages against Moore in his individual capacity, as set forth in Count III of the Amended Complaint; (b) Plaintiff's claim against Moore, in his individua l capacity, for alleged tortious interference with business relations, as set forth in Count IV of the Amended Complaint; and (c) Plaintiff's claim against Moore, in his individual capacity, for alleged conversion, as set forth in Count V of the Amended Complaint. In all other respects, the motion (Doc. 33 ) is GRANTED. The Motion of Defendants Worthington Borough and Kevin Feeney to Partially Dismiss Plaintiff's Amended Complaint and Motion to Strike Portions of the Amended Complai nt (Doc. 35 ) is GRANTED IN PART and DENIED IN PART. The motion to dismiss (Doc. 35 ) is DENIED insofar as it seeks dismissal of: (a) Plaintiff's claim against Feeney, in his individual capacity, for alleged tortious interference with busine ss relations, as set forth in Count IV of the Amended Complaint; and (b) Plaintiff's claim against Feeney, in his individual capacity, for alleged conversion, as set forth in Count V of the Amended Complaint. In all other respects, the motion t o dismiss (Doc. 35 ) is GRANTED. The Defendants' motion to strike portions of the Amended Complaint (Doc. 35 ) is DENIED. Consistent with the foregoing, the following claims are hereby DISMISSED WITH PREJUDICE: Plaintiff's claims under 42 U.S.C. § 1983 for punitive damages against the Township of Pine (Counts I and II); Plaintiff's Section 1983 claims against Defendants Clyde Moore and/or Kevin Feeney in their official capacities (Count III); Plaintiff's Section 198 3 claim for conspiracy to deprive him of personal property taken from his private locker, without due process of law (Count III); Plaintiff's Section 1983 claims for conspiracy to violate provisions of the Pennsylvania Sunshine Law (Count III); Plaintiff's Section 1983 claim for conspiracy to deprive him of a protected property interest in his job, without due process of law (Count III); Plaintiff's claim under Pennsylvania law for conspiracy to violate provisions of the Pennsylva nia Sunshine Law (Count III); Plaintiff's claims against the Borough of Worthington and the Township of Pine for tortious interference with a business relation (Count IV); Plaintiff's claims against the Borough of Worthington and the Towns hip of Pine for conversion (Count V); Plaintiff's claims against Defendants Moore and Feeney, in their official capacities, for tortious interference with a business relation (Count IV); and Plaintiff's claims against Defendants Moore and Feeney, in their official capacities, for conversion (Count V). IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 3/30/16. (rld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER AIRGOOD,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
THE TOWNSHIP OF PINE, et al.,
Defendants.
Civil Action No. 14-1249
Judge Cathy Bissoon
MEMORANDUM AND ORDER
I.
MEMORANDUM
For the reasons stated below, the Motion to Partially Dismiss Amended Complaint filed
by Defendants Township of Pine and Clyde Moore (Doc. 33) will be GRANTED in part and
DENIED in part, and the Motion of Defendants Worthington Borough and Kevin Feeney to
Partially Dismiss Plaintiff’s Amended Complaint and Motion to Strike Portions of Amended
Complaint (Doc. 35) will be GRANTED in part and DENIED in part.
BACKGROUND
In or around September of 2012, Plaintiff Christopher Airgood (“Plaintiff”) was hired by
the Pine Township Board of Supervisors (“Board of Supervisors”) as a member of the
Township’s Police Department. (Amended Compl. (Doc. 32) ¶ 11). He was promoted to the
position of Chief of Police by a unanimous vote of the Board of Supervisors at a public meeting
held in October of 2012. (Id. at ¶ 17). During his tenure, Plaintiff expressed disagreement with
Pine Township Supervisor Jason McCoy (“McCoy”) over issues pertaining to the operation of
the police department, including the legality of using a traffic citation quota system as a means of
covering the cost of police salaries. (Id. at ¶¶ 21-22).
1
Plaintiff was subsequently terminated from his job when the Pine Township Police
Department was disbanded on October 31, 2012 at “a private Board commmittee meeting.” (Id.
at ¶¶ 18-19, 73). According to Plaintiff, Worthington Borough Mayor Keven Feeney (“Feeney”)
and Pine Township Supervisors McCoy and Clyde Moore (“Moore”) met in a private session,
upon the recommendation of Solicitor Bradley Hellion, to discuss Plaintiff’s termination. (Id. at
¶ 100). Plaintiff was never subjected to discipline, provided with any statement of charges, or
given an opportunity to be heard prior to his termination. (Id. at ¶¶ 21, 80-81). He claims that
Feeney, McCoy and Moore violated provisions of the Pennsylvania Sunshine Law by failing to
advise him ahead of time that his employment status would be discussed in executive session and
by depriving him of an opportunity to demand that the matter be discussed publicly. (Id. at ¶¶
100-02).
On November 1, 2012, Plaintiff went to the Pine Township Police Department to retrieve
his belongings and return his police car, but he found that he could no longer access the building
with his keys. (Id. at ¶¶ 24-25). After contacting McCoy, Plaintiff gained access to the
building, where he was greeted by McCoy and Moore. (Id. at ¶¶ 25-27). Once inside, Plaintiff
noticed that the locks had been cut or broken off of his own personal locker and a private locker
owned by Pine Township Police Commander William Deforte. (Id. at ¶ 28). When Plaintiff
asked McCoy and Moore who had cut the locks, they “chuckled” and indicated that “Mr. Feeney
did it.” (Id. at ¶ 29). According to Plaintiff, Moore stated that he and Feeney had broken into the
Pine Township Police Department on October 30, 2012 and seized property. (Id. at ¶¶ 45-46).
Plaintiff asked how Moore and Feeney could break into the police department and break off
locks to personal lockers and private lock boxes without a warrant. (Id. at ¶ 43). According to
Plaintiff, “Moore stated that they could do whatever they wanted, and it was performed upon the
2
‘advice from Mr. Feeney.’” (Id. at ¶ 44). When Plaintiff attempted to retrieve certain items on
behalf of Commander Deforte, Moore allegedly laughed and stated that the items were “now
theirs.” (Id. at ¶¶ 34-37).
During Plaintiff’s encounter with Moore and McCoy on November 1, 2012, Moore
confirmed that Plaintiff had been terminated from his position, stating, “[Y]our [sic] done, get
your stuff outta’ here.” (Id. at ¶¶ 30-32). When Plaintiff asked why he had been terminated,
Moore replied that “Mr. Feeney wanted it that way,” and “we can’t talk about that.” (Id. at ¶ 41).
Plaintiff inquired of Moore how he could terminate Plaintiff’s employment and disband the
police department wtihout a public hearing, to which Moore again replied, “[W]e can’t talk about
that with you.” (Id. at ¶¶ 47-48).
According to Plaintiff, Feeney later admitted during an interview with Pennsylvania State
Police that he had been present while Moore broke the locks on the lockers on October 30, 2012
and that he had “seized” property from the lockers. (Id. ¶¶ 50-51). Feeney again admitted to
seizing property from the lockers during at a public meeting of the Worthington Borough
Council that was held in November of 2012. (Id. at ¶¶ 52-53). Plaintiff claims that Moore and
Feeney unlawfully seized “$550.00 USD, 1,000,00 [sic] rounds of .45 ACP ammunition, and
several pairs of BDU uniform pants” from his personal locker. (Id. at ¶¶ 120-21). Plaintiff also
claims that Feeney removed incriminating documents pertaining to an ongoing investigation that
implicated Feeney’s involvement in certain criminal activities. (Id. at ¶¶ 122-24). At the time of
these events, neither Pine Township nor the Pine Township Police Department had a directive in
place that allowed for periodic inspection of lockers. (Id. at ¶ 55). The lockers in question were
purchased or personally owned by the officers, not the Township. (Id. at ¶¶ 56-57). Feeney was
3
not elected, appointed, or employed by, for, or within Pine Township, at any time relevant to this
lawsuit. (Id. at ¶ 54).
Plaintiff subsequently filed this lawsuit on September 12, 2014 against Pine Township,
Moore, the Borough of Worthington and Feeney (collectively, “Defendants”). His original
complaint alleged:
1. a violation by Pine Township of Plaintiff’s right to procedural due process with
respect to the seizure of his belongings and the termination of his job, as well as his
right to be free from unreasonable searches and seizures (“Count I”);
2. conspiracy by all named Defendants to violate: (a) Plaintiff’s right to procedural due
process and the Pine Township Code relative to the loss of his job, (b) the Fourth
Amendment with respect to the search of his locker and seizure of his belongings, and
(c) Pennsylvania’s Sunshine Law; and
3. Defendants’ tortious interference with Plaintiff’s business relations – to wit, his
employment by Pine Township.
(Compl. (Doc. 1) ¶¶ 59-96).
After Defendants filed motions to dismiss the foregoing counts, this Court entered a
Memorandum and Order (Doc. 30) dismissing certain claims. Specifically, the Court dismissed
the following causes of action with prejudice: all of Plaintiff’s Section 1983 claims as alleged
against Moore and Feeney in their official capacities; Plaintiff’s Section 1983 Fourteenth
Amendment (Count I) claim for loss of property without due process of law; Plaintiff’s Section
1983 Fourteenth Amendment (Count II) claim for conspiracy to deprive him of property without
due process of law; and Plaintiff’s Section 1983 claim alleging a violation of Pennsylvania’s
Sunshine Ace (Count II). (See Memorandum and Order of July 2, 2015 (Doc. 30) at p. 20). The
Court dismissed the following claims without prejudice: Plaintiff’s Section 1983 Fourteenth
Amendment claim (Count I), to the extent that Plaintiff alleged a constitutional property interest
in his job pursuant to statute or contract; Plaintiff’s Section 1983 Fourth Amendment claim
(Count I) against Pine Township; Plaintiff’s Section 1983 Fourteenth Amendment conspiracy
4
claim (Count II), to the extent that Plaintiff alleges a constitutional property interest in his job
pursuant to statute or contract; Plaintiff’s Section 1983 Fourth Amendment conspiracy claim
(Count II) as against Defendants Pine Township and/or the Borough of Worthington; and
Plaintiff’s claim for tortious interference with business relations (Count III). (Id. at p. 21).
Plaintiff subsequently filed his Amended Complaint (Doc. 32) – currently the operative
pleading – in which he restates his claims in five separate counts. Count I now asserts a claim
under 42 U.S.C. §1983 against Pine Township for the alleged violation of Plaintiff’s procedural
due process rights in connection with his termination and the warrantless seizure of his personal
items on October 30, 2012. (Amended Compl. at ¶¶ 60-85). Count II asserts a Section 1983
claim against Pine Township for the alleged violation of Plaintiff’s Fourth Amendment rights in
connection with the warrantless seizure of his personal items on October 30, 2012. (Id. at ¶¶ 8697). Count III asserts a claim against the individual defendants in their official and individual
capacities for conpiracy to violate Plaintiff’s procedural due process rights and provisions of the
Pine Township Code. (Id. at ¶¶ 98-110). Count IV asserts a claim against all Defendants for
tortious interference with Plaintiff’s business relations. (Id. at ¶¶ 111-118). Count V
(erroneously designated “Count VI” in the Amended Complaint) asserts a claim against all
Defendants for the unlawful conversion of Plaintiff’s property. (Id. at ¶¶ 119-126).
Defendants Moore and Pine Township (collectively, the “Township Defendants”) move
to dismiss Counts IV and V of the Amended Complaint, as well as Plaintiff’s request for punitive
damages, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Twp. Defs.’
Mot. Dismiss (Doc. 33) at ¶¶ 13, 39-40). Defendants Feeney and the Borough of Worthington
(collectively, the “Borough Defendants”) move to dismiss Counts III through V pursuant to Rule
12(b)(6). (See Borough Defs.’ Mot. Dismiss (Doc. 35) at p. 2). In addition, the Borough
5
Defendants move to strike certain allegations in the Amended Complaint pursuant to Rule 12(f).
(Id.).
ANALYSIS
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When faced with a motion to dismiss, a court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009).
Count III – Plaintiff v. The Individual Defendants
Count III of the Amended Complaint is captioned as a claim against “All Individual
Defendants in their Official and Individual Capacities” for “Conspiracy to Violate the Plaintiff’s
Right to Procedural Due Process/Violation of Township Code.” (Amended Compl. at Count III,
p. 15). Although Plaintiff styles Count III as an alleged conspiracy to violate federal due process
rights and provisions of the Township Code, it appears he is also asserting a conspiracy to violate
his federal Fourth Amendment rights and/or provisions of Pennsylvania’s Sunshine Law. (See,
e.g., Amended Compl. at ¶ 100 (alleging that “[j]ust prior to [the Township’s November 2012
public meeting], Pine Township Supervisor Clyde Moore, Pine Township Supervisor Jason
McCoy, and Worthington Borough Mayor Kevin Feeney ... met in private session, violating the
Pennsylvania Sunshine Law where ... Chief Airgood’s termination was discussed.” ); (id. at ¶
108) (alleging that “Feeney conspired with Moore to break into private lockers within the Pine
Township Police Department without warrant, and seize items, violating Plaintiff’s 4th
Amendment and 14th Amendment rights under the United States Constitution.”).
6
The Borough Defendants move to dismiss all conspiracy claims against Feeney except
for the Section 1983 claim asserted against Feeney in his individual capacity for alleged
conspiracy to violate Plaintiff’s Fourth Amendment right to be free from unreasonable search
and seizure, which the Court previously found to be sufficiently pled. Defendants argue that
Plaintiff’s conpiracy claim is barred by the “law of the case” doctrine to the extent it is premised
on an alleged due process violation arising from the seizure of Plaintiff’s personal belongings
and/or an alleged violation of the Pennsylvania Sunshine Law. Insofar as Count III is premised
on an alleged federal civil rights conspiracy to deprive Plaintiff of his public employment
without due process of law, the Borough Defendants argue that the claim remains insufficiently
pled. These arguments are well-taken.
The “law of the case” doctrine holds that, when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case. See
American Civil Liberties Union v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008). In its July 2,
2015 Memorandum and Order, this Court dismissed Plaintiff’s Section 1983 conspiracy claim
with prejudice to the extent the claim was based on: (a) an alleged conspiracy to deprive
Plaintiff of personal property located within his secured locker without due process of law or (b)
an alleged conspiracy to violate Pennsylvania’s Sunshine Law. (See Mem. and Order dated
7/2/15 (Doc. 30) at pp. 12-13, 20). That ruling stands and, as a result, Plaintiff cannot assert a
federal civil rights conspiracy claim based on either of these two theories.1
1
The Court further notes that it previously dismissed, with prejudice, all Section 1983 claims
against Feeney and Moore in their official capacities, as such claims are duplicative of the
municipal claims asserted against the Borough of Worthington and Pine Township. (See Mem.
and Order dated 7/2/15 (Doc. 30) at pp. 4, 20). That ruling is the law of the case and,
consequently, any official-capacity Section 1983 claims asserted by Plaintiff against Feeney or
Moore in Count III are dismissed.
7
In his brief in opposition to the Borough Defendants’ motion, Plaintiff concedes that he
also cannot maintain a Section 1983 claim against Feeney for alleged conspiracy to deprive him
of a protected property interest in his employment without due process of law, since “Mayor
Kevin Feeney was not elected or appointed as head of the Pine Township Police Department.”
(Pl.’s Br. Opp. to Borough Defs.’ Mot. Dismiss (Doc. 40) at p. 7). Accordingly, the Court will
dismiss this particular claim against Feeney with prejudice, because it is not possible for Plaintiff
to cure the pleading defect through further amendment.
The Borough Defendants have not moved to dismiss Plaintiff’s Section 1983 claim
against Feeney insofar as the claim is based on an alleged conspiracy to violate Plaintiff’s Fourth
Amendment rights by engaging in a warrantless search of his locker and a warrantless seizure of
his personal belongings. Accordingly, that federal civil rights conspiracy claim remains pending
against Feeney – in his individual capacity – and will proceed forward.
With respect to the claims against Moore in Count III, the Township Defendants have not
challenged the substantive aspects of Plaintiff’s federal conspiracy claim2; however, the Court’s
rulings with respect to Feeney have implications relative to the claims against Moore. First,
under the law of the case, any Section 1983 conspiracy claims against Moore are dismissed with
prejudice, to the extent they are premised on: (i) an alleged agreement to deprive Plaintiff of the
personal property taken from his locker without due process of law; or (ii) an alleged agreement
to violate provisions of the Pennsylvania Sunshine Law. Furthermore, no claim can be
maintained against Moore under Section 1983 based on an alleged conspiracy to deprive Plaintiff
of a constitutionally protected property interest in his job without due process of law, given
Plaintiff’s concession that he cannot maintain such a claim against Feeney. It is axiomatic that a
The Township Defendants have formally moved only to strike Plaintiff’s request for punitive
damages in Count III, as discussed, infra.
2
8
conspiracy requires an agreement between at least two individuals. See Parkway Garage Inc. v.
City of Phila., 5 F.3d 685, 700 (3d Cir. 1993) (“To demonstrate a conspiracy under § 1983, a
plaintiff must show that two or more conspirators reached an agreement to deprive him or her of
a constitutional right ‘under color of law.’”) (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 150 (1970), overruled on other grounds, UA Theatre Circuit v. Twp. of Warrington, 316
F.3d 392 (3d Cir. 2003); see also Gleason v. E. Norriton Twp., No. 11-CV-6273, 2012 WL
3024011, at *5 (E.D. Pa. July 24, 2012) (discussing Section 1983 conspiracy principles). In both
iterations of his complaint, Plaintiff alleged only that Moore conspired with Feeney. (See
Compl. at ¶¶ 77, 85-86; Amended Compl. at ¶¶ 99, 107-08). Accordingly, Plaintiff’s Section
1983 conspiracy claim pertaining to his alleged deprivation of due process in connection with his
loss of employment is insufficient as a matter of law and will be dismissed with prejudice.
One final point remains to be discussed concerning Count III. As noted, this Court
previously dismissed, with prejudice, Plaintiff’s Section 1983 claim to the extent it was based on
an alleged conspiracy to violate provisions of the Pennsylvania Sunshine Law, and this ruling
remains the law of the case. Although Plaintiff does not dispute this point, he does appear to be
arguing that Count III actually incorporates a pendant state law claim for conspiracy to violate
the Pennsylvania Sunshine Law. (See Pl.’s Br. Opp. to Borough Defs.’ Mot. Dismiss (Doc. 40)
at p. 8 (noting that, “[t]hough this is a violation of a law of [the] Commonwealth of
Pennsylvania, the Court may hear state cases accompanied by Federal issue[s].”)).
To the extent Plaintiff intended to assert a state law conspiracy claim in Count III of his
Amended Complaint, his pleading failed to give Defendants proper notice of this claim, contrary
to the mandates of Rules 8(a) and 10(b). See Fed. R. Civ. P. 8(a) (a complaint must contain a
short and plain statement of the claim showing that the pleader is entitled to relief); Fed. R. Civ.
9
P. 10(b) (stating that each claim founded on a separate transaction or occurrence should be stated
in a separate count, where doing so would promote clarity); see also Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 545 (2007) (a complaint must “give the defendant fair notice of what
the claim is and the grounds upon which it rests”) (citations omitted); Anderson v. Dist. Bd. of
Trustees of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (noting that, where a
plaintiff asserts multiple claims for relief, the complaint should “present each claim for relief in a
separate count, as required by Rule 10(b), [ ] and with such clarity and precision that the
defendant will be able to discern what the plaintiff is claiming and to frame a responsive
pleading.”) (internal footnote omitted). In addressing Count II of the original complaint, this
Court clearly interpreted and analyzed the alleged conspiracy claim as a federal cause of action
that was being asserted under Section 1983. (See Mem. and Order dated 7/2/15 at 13). This was
consistent with the fact that Count II purported to assert additional conspiracies to violate
Plaintiff’s federal rights under the Fourth and Fourteenth Amendments. Further compounding
the confusion is the fact that the factual content of amended Count III is essentially identical to
that previously set forth in Count II of the original complaint, particularly as it relates to alleged
violations of the Pennsylvania Sunshine Law. Nevertheless, instead of setting forth his putative
state law conspiracy claim in a separate count as contemplated by Rule 10(b) and/or adding new
averments to clarify the nature of his claim, Plaintiff simply argues that his conpiracy claim in
amended Count III now incorporates a pendant state law claim not previously asserted. As pled,
the Amended Complaint fails to give adequate notice that Plaintiff is asserting a state law
conspiracy theory based on an agreement to violate provisions of the Pennsylvania Sunshine
Law.
10
Even if we construe Count III as giving adequate notice of such a claim, however, the
claim is insufficient as a matter of law and must be dismissed. Under Pennsylvania law, “[t]wo
or more persons commit the tort of civil conspiracy where they (1) agree or combine (2) to do an
unlawful act or a lawful act by unlawful means (3) with malice, ‘i.e., an intent to injure.’”
Deritis v. Roger, No. CV 13-6212, 2016 WL 739015, at *8 (E.D. Pa. Feb. 24, 2016) (quoting
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979)).
Here, the only “persons” who are alleged to have formed an agreement are Feeney and
Moore. (See, e.g., Amended Compl. at¶ 99 (“Feeney and Moore unlawfully conspired to violate
Chief Airgood’s constitutional rights to procedural due process of law); id. at ¶ 107 (alleging that
Feeney “encouraged, aided, abetted, and conspired with the other Defendants”); id. at ¶ 108
(alleging that “Feeney conspired with Moore” to break into private lockers within the Pine
Township Police Department without [a] warrant, and seize items...”)). However, Plaintiff’s
averments fail to allege a plausible conspiracy by Feeney and Moore to violate provisions of the
Pennsylvania Sunshine Law. The Amended Complaint states only that “[j]ust prior to being
terminated at the public monthly Pine Township meeting in November of 2012, Pine Township
Supervisor Clyde Moore, Pine Township Supervisor Jason McCoy, and Worthington Borough
Mayor Kevin Feeney, and upon recommendation of Solicitor Bradley Hellion, met in private
session, violating the Pennsylvania Sunshine Law where it is believed, and therefore averred,
that Chief Airgood’s termination was discussed.” (Amended Compl. at ¶ 100). Plaintiff avers
that, contrary to Section 708 of the Sunshine Law, he was never advised that his employment
status would be discussed in executive session, nor was he given a chance to demand that it be
discussed in public. (Id. at ¶¶ 101-02). No averments are offered concerning the alleged
conspiracy other than a conclusory allegation that “Mayor Feeney[ ] encouraged, aided, abetted,
11
and conspired with the other Defendants, and is liable because he unlawfully conspired with the
other Defendants and acted under color of state law.” (Id. at ¶ 107).
Under federal pleading standards, this is insufficient to establish a plausible claim for
civil conspiracy. As a general matter, “a plaintiff's obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration in the original; citations omitted). To successfully plead a civil conspiracy
claim, a plaintiff must set forth allegations that are:
supported by facts bearing out the existence of the conspiracy and indicating its
broad objectives and the role each defendant allegedly played in carrying out
those objectives. Bare conclusory allegations of “conspiracy” or “concerted
action” will not suffice to allege a conspiracy. The plaintiff must expressly allege
an agreement or make averments of communication, consultation, cooperation, or
command from which such an agreement can be inferred.
Angino v. Wells Fargo Bank, N.A., No. 1:15-CV-418, 2016 WL 787652, at *12 (M.D. Pa. Feb.
19, 2016) report and recommendation adopted, No. 1:15-CV-418, 2016 WL 759161 (M.D. Pa.
Feb. 26, 2016) (quoting Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992)). The
Amended Complaint is devoid of factual content that indicates, e.g., the alleged objectives of the
“conspiracy” and/or the roles that Feeney or Moore played.
More fundamentally, Plaintiff’s own averments demonstrate that Feeney could not have
conspired with Moore to violate the provisions of the Sunshine Law as it pertains to decisions
about Plaintiff’s employment, since Plaintiff concedes that Feeney, as Mayor of the Borough of
Worthington, was not formally affiliated with the Township in any capacity. (See Amended
Compl. ¶ 54 (alleging that “Worthington Borough Mayor Kevin Feeney[] was not elected,
appointed, or employed by, for or within the Township of Pine, in any capacity); Pl.’s Br. Opp.
to Borough Defs.’ Mot. Dismiss (40) at p. 7 (conceding the dismissal of “the claim for
12
conspiracy against Mayor Kevin Feeney with regard to alleged deprivation of [Plaintiff’s]
property interest in employment with Pine Township” because “Feeney was not elected or
appointed as head of the Pine Township Police Department”)). Because Feeney was not a Pine
Township official and could not have conspired with Moore to violate provisions of the
Pennsylvania Sunshine Act relative to decisions about Plaintiff’s employment, it follows that
Plaintiff cannot sustain a state law conspiracy claim against Moore, either. See Deritis, 2016 WL
739015, at *8 (Pennsylvania law requires an agreement between “two or more persons” to do an
unlawful act or a lawful act by unlawful means, with malice). Accordingly, to the extent Count
III purports to state a claim under Pennsylvania law for an alleged conspiracy to violate
provisions of the Sunshine Law, that claim is insufficiently pled in a manner that is not capable
of being cured through further amendment.
In light of the foregoing, Count III of the Amended Complaint presently survives only to
the extent that it asserts a Section 1983 claim against Moore and Feeney in their individual
capacities based on an alleged conspiracy between these two Defendants to violate Plaintiff’s
Fourth Amendment rights. Plaintiff’s Section 1983 “due process” conspiracy claim relative to
his loss of employment, and his putative state law claim for alleged conspiracy to violate the
Pennsylvania Sunshine Law will be dismissed with prejudice.
Count IV – Plaintiff v. All Defendants
Count IV of the Amended Complaint is styled as a claim against “All Defendants in
Their Official and Individual Capacities” for “Tortuous [sic] Interference with Business
Relations.” (Amended Compl. at Count IV, p. 17). Plaintiff agrees that, pursuant to
Pennsylvania’s Political Subdivision Tort Claim Act (“PSTCA”), local agencies such as Pine
Township and the Borough of Worthington are immune from liability in tort, except in limited
13
situations which do not apply here. See 42 Pa.Cons. Stat. Ann. §§ 8541-8542 (West). This
immunity extends to intentional tort claims. See Robinson v. Darby Borough, No. 08-4561,
2010 WL 1462370, at *2 (E.D. Pa. Apr. 13, 2010).3 Plaintiff further concedes that Feeney and
Moore are similarly immune from liablity under Count IV relative to any claims being asserted
against them in their official capacities. (See Pl.’s Br. in Opp. to Mot. to Partially Dismiss the
Amended Compl. (Doc. 39) at p. 8). See also Dix v. City of Phila., No. CIV.A. 15-532, 2015
WL 4624248, at *4 (E.D. Pa. Aug. 3, 2015) (“The PSTCA provides that Pennsylvania municipal
agencies[ ] and their officers acting in their official capacities are immune from liability for
damages arising out of injuries to persons or property.”) (citing authority); Holloway v. Brechtse,
279 F. Supp. 2d 613 (E.D. Pa. 2003) (under the PSTCA, municipal agencies' immunity from
liability on state law tort claims extends to municipal offers acting in their official capacities).
Accordingly, to the extent Count IV purports to assert claims against Pine Township, the
Borough of Worthington and/or Feeney or Moore in their official capacities, those claims are
dismissed with prejudice.4
To the extent Count IV is asserted against Feeney and Moore in their personal capacities,
Defendants argue that dismissal is still appropriate because Count IV does not allege the
existence of any contractual relationship with which the Defendants could have interfered. To
state a cause of action under Pennsylvania law for intentional interference with contractual
relations, a plaintiff must prove: (1) the existence of a contractual, or prospective contractual
3
The Borough Defendants also move to dismiss Plaintiff’s claim for punitive damages in Counts
IV and V of the Amended Complaint on the ground that, pursuant to the PSTCA, a local agency
cannot be held liable for punitive damages. Plaintiff concedes this argument and, consequently,
his claim for punitive damages would be independently subject to dismissal on this basis as well.
4
In fact, this issue was previously decided by the Court in its July 2, 2015 Memorandum and
Order. See Mem. and Order of 7/2/15 (Doc. 30) at 18 (noting that, pursuant to the PSTCA, “the
claim of tortious interference with business relations cannot proceed against Pine Township or
the Borough of Worthington, and it will be dismissed”).
14
relation between the complainant and a third party; (2) purposeful action on the part of the
defendant, specifically intended to harm the existing or prospective relation; (3) the absence of
privilege or justification on the part of the defendant; and (4) the occasioning of actual legal
damage as a result of the defendant's conduct. Kepner v. Kepner, No. 835 EDA 2015, 2015 WL
7283034, at *4 (Pa. Super. Ct. Nov. 18, 2015). While Defendants challenge the first element of
Plaintiff’s claim – i.e., the existence of a contractual relationship – Plaintiff contends that this
element is satisfied because he has pled the existence of a verbal employment contract with Pine
Township.
Under Pennsylvania law, the formation of a contract requires (1) the parties'
manifestation of a mutual intention to be bound by an agreement; (2) terms that are sufficiently
definite so as to be enforceable; and (3) consideration. Century Indem. Co. v. Certain
Underwriters at Lloyd's, London, 584 F.3d 513, 533 (3d Cir. 2009) (citations omitted). “‘[I]n
order for there to be an enforceable contract, the nature and extent of its obligation must be
certain; the parties themselves must agree upon the material and necessary details of the
bargain.’” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 585–87 (3d Cir. 2009)
(quoting Lombardo v. Gasparini Excavating Co., 123 A.2d 663, 666 (Pa. 1956)). “In other
words, we look to see whether ‘the terms are sufficiently definite to be specifically enforced.’”
Id. (quoting Channel Home Ctrs. v. Grossman, 795 F.2d 291, 298–99 (3d Cir.1986)).
Here, Plaintiff alleges that he was hired in or around September 2012 to serve as a
member of the Pine Township Police Department. (Amended Compl. at ¶ 11). He was informed
by McCoy that his “starting salary” woud be $15 per hour. Id. at ¶ 16. At the Board of
Supervisors’ public meeting in October 2012, Plaintiff was promoted to Chief of Police by a
unanimous vote of the Board. (Id. at ¶ 17). His responsibilities included being “in charge of
15
everything from the police department’s daily administrative duties to the not so routine undercover police drug work, which required [him] to be on call any and all times.” (Id. at ¶ 69).
According to Plaintiff, McCoy informed him that one of his responsibilites would be “to
constantly monitor the township’s illegal drug activity, ‘through whatever means necessary,’”
and “to be available ‘24 hours a day, seven days a week,’ in order to put an end to the illegal
drug problem within Pine Township.” (Id. at ¶ 70). Plaintiff was never subject to any
probationary period during his tenure with the police department. (Id. at ¶¶ 71-72). These
allegations are sufficient to establish a plausible inference of a contractual agreement between
Plaintiff and Pine Township that Plaintiff would serve as a member of the Township’s police
force, and later, its police chief, in exchange for remuneration by the Township.
Nevertheless, this does not end our inquiry because “[i]t is widely held that Pennsylvania
law does not recognize a claim for tortious interference with an employment contract that is an
at-will arrangement.” Mifflinburg Tel., Inc. v. Criswell, 80 F. Supp. 3d 566, 570 (M.D. Pa.
2015). This raises the question of what the terms of Plaintiff’s employment contract were. In
Pennsylvania, municipal employees are presumed to be at-will employees. See Stumpp v.
Stroudsburg Municipal Authority, 658 A.2d 333 (Pa. 1995) (noting that, “as a general rule,
employees are at-will, absent a contract, and may be terminated at any time, for any reason or for
no reason”); Ballas v. City of Reading, No. CIV.A.00-CV-2943, 2001 WL 73737, at *3 (E.D. Pa.
Jan. 25, 2001) (“Municipal employees ... assume their job subject to the possibility of summary
removal by the employing authority for any reason or no reason.”) (citations omitted).
Notwithstanding this presumption, Plaintiff appears to assert that he entered into an
implied, “long term” employment contract with Pine Township. (See Pl.’s Br. Opp. to Township
Defs.’ Mot. Dismiss (Doc. 39) at p. 6). Plaintiff’s argument is based on the theory that one of his
16
responsibilities as Chief of Police was to address the “ongoing drug problem in Pine Township,”
and “[s]ince drug activity is a deep rooted problem within a municipality, Chief Airgood could
not have solved this problem within a short period of time.” (Id.). Plaintiff therefore reasons
that “[t]his intent to solve a community drug problem[ ] clearly shows intent for a long term
contractual agreement between Chief Airgood and the Township of Pine.” (Id.). As Defendants
point out, Plaintiff argues that he entered into a “long term contractual agreement” with Pine
Township, but he has not pled facts to establish such an agreement. It is well established, that
pleadings cannot be amended by way of arguments set forth in a brief. See Pennsylvania ex rel.
Zimmerman v. Pepsico, 836 F.2d 173 (3d Cir.1988) (“It is axiomatic that the complaint may not
be amended by the briefs in opposition to a motion to dismiss.”); Cuoco v. Palisades Collection,
L.L.C., No. CV 13-6592 (ILL), 2015 WL 5823054, at *4 (D.N.J. Oct. 1, 2015) (plaintiff’s
argument in reply brief could not be read to add a claim to his proposed amended complaint, “as
parties cannot amend pleadings through briefing”). Moreover, Pine Township, as a second-class
township, cannot enter into “long term” employment contracts absent express legislative
authority to do so. See Ballas v. City Of Reading, No. CIV.A.00-CV-2943, 2001 WL 73737, at
*3 (E.D. Pa. Jan. 25, 2001) (“Where a state agency or municipality contracts for tenured
employment in the absence of enabling legislation, the contract is invalid and unenforceable.”)
(citation omitted); Stumpp, 658 A.2d at 334 (“[T]he Authority simply does not have the power
under law to enter into contracts of employment that contract away the right of summary
dismissal, since the power to confer tenure must be expressly set forth in the enabling
legislation.”). As written, the Amended Complaint does not establish a plausible implied, “long
term” employment contract arising from Plaintiff’s responsibilities to address illegal drug
activity within the Township.
17
On the other hand, Plaintiff has plausibly alleged that he was a “regular full-time”
employee covered by the Police Tenure Act, 53 Pa. Cons. Stat. §§ 812, 66912 (West). See also
Perrett v. Harmar Twp., Civil Action No. 07-593, 2008 WL 3457014, at *9 (W.D. Pa. 2008)
(“The Second Class Township Code at 53 P.S. § 66912 adopts the provisions of the Police
Tenure Act with regard to the removal of police officers.”).5 “Section 2 of the Act sets forth the
only circumstances under which a full-time police officer [of a Township of the Second Class]
may be removed from office.” Siegfried v. Unemployment Comp. Bd. of Review, No. 1632
C.D. 2013, 2014 WL 3943990, at *2 (Pa. Commw. Ct. Aug. 13, 2014) (citing Upper Makefield
Township v. Pennsylvania Labor Relations Board, 753 A.2d 803, 807 (Pa. 2000)). These include
situations where an officer: (1) suffers from a “physical or mental disability” that affects his or
her ability to continue in service, (2) commits “neglect or violation of any official duty”; (3)
commits a violation of law that amounts to a misdemeanor or felony; (4) demonstrates
“inefficiency, neglect, intemperance, disobedience of orders, or conduct unbecoming an officer”;
or (5) is intoxicated while on duty. 53 Pa. Stat. Ann. § 812 (West). Pennsylvania courts have
stated, in the context of unemployment compensation cases, that the provisions of the Police
Tenure Act are incorporated as implied terms into the officer’s employment contract. See
Siegfried, 2014 WL 3943990, at *2 (“As a matter of law, the Police Tenure Act is incorporated
into Claimant's employment contract with Employer and supplies implied terms and bases for
termination apart from those detailed in the Regulations.”) (citing DePaul v. Kauffman, 272 A.2d
500, 506 (Pa.1971) (“[T]he laws in force when a contract is entered into become part of the
5
Defendants implicitly acknowledge this fact, as they have not moved to dismiss Count I of the
Amended Complaint, which asserts a Section 1983 procedural due process claim premised on the
theory that Plaintiff was deprived of a constitutionally protected property interest in his
employment (property interest in which arose from the provisions of the Police Tenure Act)
without due process of law. (See Amended Compl. at ¶¶ 64, 66).
18
obligation of contract with the same effect as if expressly incorporated in its terms.”)). Thus,
even if Plaintiff’s employment status with Pine Township would have otherwise been at-will, the
provisions of the Police Tenure Act became implied terms of his employment with the
Township, if Plaintiff is indeed covered by the Act as he plausibly alleges at this stage of
litigation.
For present purposes, Plaintiff has sufficiently alleged the existence of a contractual
relationship with Pine Township. Feeney claims, however, that there are no allegations in the
Amended Complaint to show that he personally engaged in conduct that caused Pine Township
to terminate Plaintiff’s employment and that the Township would not have discharged him
and/or disbanded its police department in the absence of Feeney’s alleged interference. The only
factual allegation along these lines is Moore’s vague reference to the fact that Plaintiff was
terminated because Feeney “wanted it that way.” (Amended Compl. at ¶ 41). Although not
elaborate, the Court finds this allegation sufficient to permit a plausible inference that Feeney
was instrumental in bringing about Plaintiff’s termination. While the viability of Plaintiff's
theory will have to be tested on a more fully developed record, he has, at this early stage, alleged
sufficient factual content to raise a reasonable expectation that discovery will lead to evidence
supportive of his tortious interference claim. See Twombly, 550 U.S. at 563 n. 8.
Alternatively, Feeney claims that he is protected from liability under the PSTCA because
there has been no averment of “willful misconduct” on his part. The PSTCA does not shield an
employee from liability where his conduct constitutes a “crime, actual fraud, actual malice, or
willful misconduct.” Dix, 2015 WL 4624248, at *4 (citing 42 Pa. Cons.Stat. § 8550; Kuzel v.
Krause, 658 A.2d 856 (Pa. Commw. Ct. 1995)). “The term ‘willful misconduct’ is synonymous
with the term ‘intentional tort.’” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir.2006); see Dix,
19
2015 WL 4624248, at *4. Simply put, Plaintiff’s averment that Feeney and Moore, acting in
their individual capacities, intentionally interfered with his business relationship with Town
Pineship satisfies the “willfulness” standard, as it alleges the Defendants’ involvement in an
intentional tort. See Dix, 2015 WL 4624248, at *4 (defendant officers were not immune, in their
individual capacities, from liability for alleged conversion pursuant to the PSTCA, since
conversion is an intentional tort). To the extent the “willful misconduct” standard is disputed, it
will have to be resolved at a later stage of this litigation with the benefit of discovery. See C.B.
v. Western Wayne Sch. Dist., Civil Action No. 3:15-CV-1126, --- F. Supp. 3d ---, 2016 WL
727745, at *12 (M.D. Pa. Feb. 24, 2016) (stating that “willful misconduct” under the PSTCA, 42
Pa. Cons. Stat. Ann. §8550 (West), is a “‘question to be determined by the trier of fact’” and,
therefore, “more appropriate to determine at the summary judgment [stage]”) (quoting Acker v.
Spangler, 500 A.2d 206, 207 (Pa. Commw. Ct. 1985)). As such, Defendants’ Motions to
Dismiss Count IV of the Amended Complaint will be denied.
Count V – Plaintiff v. All Defendants
Count V of the Amended Complaint is styled as a claim against “All Defendants in Their
Official and Individual Capacities” for alleged conversion. (Amended Compl. at Count V, p.
18). Because Plaintiff agrees that Pine Township and the Borough of Worthington are immune
from any liability for conversion under the PSTCA, his claims against those entities will be
dismissed with prejudice. (See Br. Supp. Borough Defs.’ Mot. Dismiss (Doc. 36) at p. 10-11;
Br. Opp. to Twp. Defs.’ Mot. Dismiss (Doc. 39)). Plaintiff similarly concedes that immunity
under the PSTCA is extended to Feeney and Moore in their official capacities, so his “official
capacity” claims for alleged conversion will be dismissed with prejudice as well. Id.
20
With regard to Plaintiff’s claims against Feeney and Moore in their individual capacities,
Feeney argues that Plaintiff’s conversion claim is untimely. Under the “Third Circuit Rule,” a
defendant may assert a statute-of-limitations defense by way of a motion to dismiss “if the time
alleged in the statement of a claim shows that the cause of action has not been brought within the
statute of limitations.” Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (internal
quotation marks and citation omitted). The untimeliness of the plaintiff's claim must be apparent
from the face of the pleading. Cannella v. Brennan, Civil Action No. 2:12–CV–1247, 2014 WL
3855331, at *10 (E.D.Pa. Aug.6, 2014).
In this case, the Amended Complaint clearly asserts that Plaintiff’s personal items were
wrongly converted by Feeney and Moore on October 30, 2012, and Plaintiff discovered this fact
two days later, on November 1, 2012. See Amended Compl. at ¶¶ 24-29, 43-46, 120-26.
Plaintiff’s claim accrued, and the statute of limitations began to run, when he discovered his
injury. See Raucci v. Candy & Toy Factory, No. CV 15-3385, 2015 WL 6664160, at *2 (E.D.
Pa. Nov. 2, 2015). Because Pennsylvania imposes a two-year statute of limitations on claims for
conversion, see 42 Pa. Cons. Stat. Ann. § 5524(3) (West), Plaintiff had to file suit on his
conversion claim no later than November 1, 2014. Plaintiff did not assert his conversion claim
until July 13, 2015 when he filed the Amended Complaint, so, at first blush, it would appear that
Plaintiff’s conversion claim is time-barred.
Nevertheless, in the interests of justice, the Court will not dismiss the conversion claim
on statute of limitations grounds because it appears that the claim relates back to Plaintiff’s
original complaint. Pursuant to Rule 15(c), “[a]n amendment to a pleading relates back to the
date of the original pleading when ... the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out ... in the original pleading.” See Fed. R. Civ. P.
21
15(c)(1)(B). Here, Plaintiff’s original complaint asserted Section 1983 claims under the theory
that his Fourth and Fourteenth Amendment rights were violated when Moore and Feeney broke
into his locker and seized his personal belongings. These claims were based on the very same
facts that now form the basis of Plaintiff’s conversion claim. (See Compl. (Doc. 1) at ¶¶ 23-28,
42-45, 49-52, 61-66, 72-75). Although the legal theory in Count V of the Amended Complaint is
different from the theory that originally was asserted in Count I of the Complaint, “[c]ourts
. . . allow relation back when the new claim is based on the same facts as the original pleading
and only changes the legal theory.” 3 James Wm. Moore et al., Moore's Federal Practice ¶
15.19[2] (3d ed. 2011); see also Roseberry v. City of Phila., No. CV 14-2814, 2016 WL 826825,
at *8 (E.D. Pa. Mar. 3, 2016) (plaintiff’s First Amendment retaliation claim in amended pleading
“clearly relate[d] back to the origination of the lawsuit,” where it was based on the identical
conduct that formed the basis of plaintiff’s employment discrimination claims in the original
complaint); 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1497
(3d ed. 2010) (“The fact that an amendment changes the legal theory on which the action initially
was brought is of no consequence if the factual situation upon which the action depends remains
the same and has been brought to defendant's attention by the original pleading.”). Because
Plaintiff’s conversion claim appears to relate back to his prior Section 1983 claims, which were
timely filed,6 the Court will not dismiss the conversion claim on statute-of-limitations grounds.
We next consider the Township Defendants’ argument that Moore cannot be liable for
conversion because there is no allegation in the Amended Complaint that he engaged in wrongful
conduct. “Conversion is ‘an act of willful interference with a chattel, done without lawful
justification, by which any person entitled thereto is deprived of use and possession.’” Dix,
6
The original complaint was filed on September 12, 2014, prior to the expiration of the statute of
limitations for the conversion claim.
22
2015 WL 4624248, at *5 (quoting Norriton E. Realty Corp. v. CentralPenn Nat'l Bank, 254 A.2d
637, 638 (Pa.1969)). According to Defendants, an essential element of a conversion claim is the
defendant’s wrongful exercise of “dominion or control over the chattel,” which can take any of
the following forms: “(a) Acquiring possession of the goods; (b) Transferring the goods in a
manner which deprives the owner of control; (c) Withholding possession from one who has the
right to it; and (d) Damaging or misusing the chattel.” (Br. Supp. Twp. Defs.’ Mot. Dismiss
(Doc. 34) at 6 (quoting McMunn v. Uppermann, 83 Pa. D&D 4th 103 (Lawrence Cty. 2006))).
Defendants argue that Moore cannot be liable for conversion, given Plaintiff’s allegations that
Moore merely opened the lockers, while Feeney removed documents from Plaintiff’s personal
locker that were allegedly incriminating as to Feeney. (See id. at p. 6 (citing Amended Compl. at
¶ 122)).
Assuming that Defendants’ recitation of the governing legal principles is accurate, the
Court finds that Plaintiff has stated a plausible claim of conversion against Moore. The
Amended Complaint clearly permits an inference that Moore and Feeney jointly broke into the
Township’s Police Department and jointly seized items on October 30, 2012. (See Amended
Compl. at ¶¶ 43-44, 46). While the Amended Complaint alleges that only Feeney took
documents from Plaintiff’s locker, (id. at ¶¶ 122-24), it also alleges that both Moore and Feeney
dispossessed Plaintiff of currency, ammunition, and “several pairs of BDU uniform pants.” (See
id. at ¶¶ 120-21). Thus, the Amended Complaint gives rise to a plausible inference that Moore
wrongfully exercised dominion and control over Plaintiff’s belongings. Even if Moore did
nothing more than cut the locks so that Feeney could seize the property in question, this could
plausibly establish that Moore “transferr[ed] the goods in a manner which deprive[d] the owner
of control.”
23
Accordingly, Plaintiff has sufficiently pled a cause of action against Moore for
conversion. To the extent Moore disputes his dominion or control over Plaintiff’s personal
belongings, this factual issue will have to be resolved at a later stage of the litigation, following
discovery. Defendants’ Motions to Dismiss Plaintiff’s conversion claim as against Moore and
Feeney in their individual capacities will be denied.
Punitive Damages Under Section 1983
The Township Defendants move to dismiss any request by Plaintiff, in connection with
his Section 1983 claims, for punitive damages against either the Township or Moore in his
official capacity. Defendants are correct that punitive damages are not available under Section
1983 as against municipalities or their employees, to the extent the employees are sued in their
official capacities. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (punitive
damages may not be recovered against a municipality under § 1983); Kentucky v. Graham, 473
U.S. 159, 165-66 (1985) (suits against individual defendants in their official capacities are
equivalent to suits against the municipalities that employed them); see also Gregory v. Chehi,
843 F.2d 111, 120 (3d Cir. 1988) (“Punitive damages cannot be recovered from defendants in
their official capacities.”); Judge v. Shikellamy Sch. Dist., No. 4:15-CV-0551, 2015 WL
5697220, at *10 (M.D. Pa. Sept. 28, 2015) (noting that “neither municipalities nor defendants
sued in their official capacities can be liable for punitive damages”). The Court will grant
Defendants’ motion to dismiss insofar as it relates to Plaintiff’s request, under Counts I and II of
the Amended Complaint, for punitive damages against the Township.7
7
The Court has dismissed all official capacity claims that Plaintiff might be asserting under
§1983, so no punitive damages can be awarded against Moore in his official capacity in any
event. See Mem. and Order dated 7/2/15 at p.4; discussion, supra, at n. 1.
24
Moore also argues that no punitive damages may be recovered against him in his
individual capacity relative to Plaintiff’s Section 1983 claim. “[P]unitive damages against
individual defendants in their individual capacities are available where the defendants have acted
with a ‘reckless or callous disregard of, or indifference to, the rights and safety of others.’”
Ramsier v. Allegheny Cty., No. CV 15 - 539, 2016 WL 890603, at *9 (W.D. Pa. Mar. 9, 2016)
(quoting Bennis v. Gable, 823 F.2d 723, 734 (3d Cir.1987)); see also Smith v. Wade, 461 U.S.
30, 56 (1983). Here, Plaintiff has alleged conduct which, if proven, could give rise to a
reasonable inference that Moore acted with reckless or callous disregard of Plaintiff’s Fourth
Amendment rights. Accordingly, the viability of Plaintiff’s punitive damages claim against
Moore is an issue that must await resolution at a later stage. The Court will deny the Township
Defendants’ motion insofar as Plaintiff seeks punitive damages against Moore personally in
Count III.
Motion to Strike
The Borough Defendants have moved to strike Paragraphs 88, 89, 122, 123, and 124 of
the Amended Complaint pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. The
averments in question concern allegations that Feeney was the subject of an ongoing criminal
investigation. Defendants contend that these averments are untrue, impertinent to Plaintiff’s
claims and scandalous in nature.
Rule 12(f) of the Federal Rules of Civil Procedure permits a district court to “strike from
a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Courts have “‘considerable discretion in disposing of a motion to strike under Rule
12(f).’” Cottillion v. United Ref. Co., No. CIV.A. 09-140, 2014 WL 1207527, at *3 (W.D. Pa.
Mar. 24, 2014)(quoting Dela Cruz v. Piccari Press, 521 F. Supp. 2d 424, 428 (E.D. Pa. 2007)).
25
As a general matter, however, motions to strike are disfavored, United States v. 0.28 Acre of
Land, More or Less, Situate in Washington Cty., Penn., No. 09CV0583, 2009 WL 4408194, at
*2 (W.D. Pa. Nov. 25, 2009) (citation omitted), and should be granted “only when ‘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.’” Allied Dental Grp., Ltd. v. State Farm Fire &
Cas. Co., No. CIV.A. 12-1637, 2013 WL 5436948, at *3 (W.D. Pa. Sept. 27, 2013) (quoting
Medevac MidAtlantic v. Keystone Mercy Health Plan, 817 F. Supp. 2d 515, 520 (E.D. Pa.
2011)). “Indeed, striking a pleading is a drastic remedy to be resorted to only when required for
the purposes of justice and should be used sparingly.” Spiess v. Pocono Mountain Reg'l Police
Dep't, No. 3:10CV287, 2011 WL 662977, at *1 (M.D. Pa. Feb. 14, 2011) (citation and internal
quotation marks omitted).
In light of the generally disfavored status of motions to strike, the Borough Defendants’
motion to strike will be denied. The Court finds that the challenged averments are arguably
relevant insofar as they demonstrate a motive for Feeney’s alleged misappropriation of certain
items belonging to Plaintiff. To the extent the challenged allegations are potentially prejudicial
and/or likely to confuse a fact-finder, the Court will have the ability to address these concerns
through appropriate pretrial orders and/or careful jury selection, if the action proceeds to that
stage.
II.
ORDER
For the reasons stated above, the Motion to Partially Dismiss Amended Complaint filed
by Defendants Township of Pine and Clyde Moore (Doc. 33) is GRANTED IN PART and
DENIED IN PART. The motion (Doc. 33) is DENIED insofar as it seeks dismissal of:
(a) Plaintiff’s request for punitive damages against Moore in his individual capacity, as set forth
26
in Count III of the Amended Complaint; (b) Plaintiff’s claim against Moore, in his individual
capacity, for alleged tortious interference with business relations, as set forth in Count IV of the
Amended Complaint; and (c) Plaintiff’s claim against Moore, in his individual capacity, for
alleged conversion, as set forth in Count V of the Amended Complaint. In all other respects, the
motion (Doc. 33) is GRANTED.
The Motion of Defendants Worthington Borough and Kevin Feeney to Partially Dismiss
Plaintiff’s Amended Complaint and Motion to Strike Portions of the Amended Complaint (Doc.
35) is GRANTED IN PART and DENIED IN PART. The motion to dismiss (Doc. 35) is
DENIED insofar as it seeks dismissal of: (a) Plaintiff’s claim against Feeney, in his individual
capacity, for alleged tortious interference with business relations, as set forth in Count IV of the
Amended Complaint; and (b) Plaintiff’s claim against Feeney, in his individual capacity, for
alleged conversion, as set forth in Count V of the Amended Complaint. In all other respects, the
motion to dismiss (Doc. 35) is GRANTED. The Defendants’ motion to strike portions of the
Amended Complaint (Doc. 35) is DENIED.
Consistent with the foregoing, the following claims are hereby DISMISSED WITH
PREJUDICE: Plaintiff’s claims under 42 U.S.C. §1983 for punitive damages against the
Township of Pine (Counts I and II); Plaintiff’s Section 1983 claims against Defendants Clyde
Moore and/or Kevin Feeney in their official capacities (Count III); Plaintiff’s Section 1983 claim
for conspiracy to deprive him of personal property taken from his private locker, without due
process of law (Count III); Plaintiff’s Section 1983 claims for conspiracy to violate provisions of
the Pennsylvania Sunshine Law (Count III); Plaintiff’s Section 1983 claim for conspiracy to
deprive him of a protected property interest in his job, without due process of law (Count III);
Plaintiff’s claim under Pennsylvania law for conspiracy to violate provisions of the Pennsylvania
27
Sunshine Law (Count III); Plaintiff’s claims against the Borough of Worthington and the
Township of Pine for tortious interference with a business relation (Count IV); Plaintiff’s claims
against the Borough of Worthington8 and the Township of Pine for conversion (Count V);
Plaintiff’s claims against Defendants Moore and Feeney, in their official capacities, for tortious
interference with a business relation (Count IV); and Plaintiff’s claims against Defendants Moore
and Feeney, in their official capacities, for conversion (Count V).
IT IS SO ORDERED.
March 30, 2016
s\Cathy Bissoon
.
Cathy Bissoon
United States District Judge
CC (via ECF email notification):
All Counsel of Record
8
Because no remaining or anticipated claims exist as against the Borough of Worthington, it
shall be terminated as a party to this case.
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?