DONOHUE et al v. THE RETIREMENT SYSTEM OF ALLEGHENY COUNTY et al

Filing 52

MEMORANDUM OPINION & ORDER GRANTING 32 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by THE RETIREMENT SYSTEM OF ALLEGHENY COUNTY, RETIREMENT BOARD OF ALLEGHENY COUNTY and DENYING AS MOOT 34 MOTION to Strike 29 A mended Complaint (Class Action Allegations or Deny Class Certification) filed by THE RETIREMENT SYSTEM OF ALLEGHENY COUNTY, RETIREMENT BOARD OF ALLEGHENY COUNTY. The Second Amended Class Acton Complaint is hereby DISMISSED WITH PREJUDICE. The Clerk of Court is directed to mark this case CLOSED. Signed by Magistrate Judge Cynthia Reed Eddy on 12/21/18. (kld)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH DONOHUE, Executor of the
Estate of SUSAN DONOHUE, and
DEBORAH KINEST, individually and on
behalf of all persons similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
THE RETIREMENT SYSTEM OF
)
ALLEGHENY COUNTY and
)
RETIREMENT BOARD OF ALLEGHENY )
COUNTY,
)
)
Defendants.
)

C.A. 17-1167

MEMORANDUM OPINION AND ORDER
Presently before the Court are two motions filed by defendants, The Retirement System
of Allegheny County and the Retirement Board of Allegheny County (collectively, “Retirement
Board”). Defendants first move to dismiss the second amended class action complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 32). Second, they
move to strike the class action allegations, or, in the alternative, to deny class certification. (ECF
No. 34). For the reasons stated herein, the motion to dismiss will be granted and the motion to
strike will be denied as moot.1
I.

Procedural History
This action was removed from the Court of Common Pleas of Allegheny County on

September 6, 2017. (ECF No. 1). A suggestion of death for named plaintiff Susan Donohue was

Under the Federal Magistrate Judges Act (“the Act), a Magistrate Judge’s jurisdiction may be conferred by consent
of the parties. 28 U.S.C. § 636(c). Under the Act, “[u]pon consent of the parties, a full-time United States magistrate
judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the
case, when specially designated to exercise such jurisdiction by the district court.” 28 U.S.C. § 636(c)(1). All
parties herein have consented to the Magistrate Judge’s jurisdiction. (ECF No. 13).
1

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filed on January 24, 2018, and on February 28, 2018, a Second Amended Complaint (“SAC”)
was filed. (ECF No. 29). The SAC names as plaintiffs Joseph Donohue, Executor of Susan
Donohue’s estate, and added a newly-named plaintiff, Deborah Kinest.
The pending motions were both filed on April 3, 2018. (ECF Nos. 32, 34). The matters
have been fully briefed and are ripe for disposition.
We have jurisdiction pursuant to 18 U.S.C. § 1331 and § 1343(a)(3).
II.

Allegations in the Second Amended Complaint
The allegations in the SAC are as follows. The Retirement System of Allegheny County

and the Retirement Board are established under the Second Class County Code, 16 P.S. §§ 470116. The Retirement System, pursuant to 16 P.S. § 4702, is established for the administration of
retirement benefits for County employees and is directed by the Retirement Board under 16 P.S.
§ 4703. (SAC at ¶¶ 3, 4). A member who has been employed for not less than 12 years may
receive, upon application, a retirement allowance if “totally and permanently disabled
physically” even though the employee has not reached the age of sixty, “provided that such proof
of such . . . total and permanent disability shall be by the unanimous opinion and sworn
statements of three practicing physicians of the county designated by the board.” 16 P.S. §
4711(a). (SAC at ¶ 7).
Plaintiffs allege violations of the constitutional right to due process because 16 P.S. §
4711(a) (“the statute”) provides no means for an applicant to prove, or offer evidence in support
of, his or her entitlement to a disability pension, and no means to obtain review of, or offer
evidence challenging the opinion of a Board-designated physician. (SAC at ¶¶ 8, 9, 15).
Plaintiffs aver that the statute provides no standards for determining whether an employee is
“totally and permanently disabled” and the Board, despite having been empowered to do so, has

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not adopted rules and regulations pertaining to disability pension applications, citing 16 P.S. §
4705. (SAC at ¶¶ 11-14).
A. Allegations as to Plaintiff Donohue
Susan Donohue began her employment with Allegheny County as a law clerk to a
Magisterial District Judge in 1982. (SAC at ¶ 18). In December 2012, Donohue requested Family
and Medical Leave Act (“FMLA”) leave due to pain and reduced mobility resulting from severe
back degeneration, spondylosis, stenosis, and tears and herniated discs in the lumbar and thoracic
regions. (SAC at ¶ 19). On February 1, 2013, Donohue returned to work with temporary
accommodations, which were removed by Spring 2014, causing increased pain and forcing her
to use paid and unpaid leave. (SAC at ¶¶ 20, 21). In August 2014, Donohue again took FMLA
leave. (SAC at ¶ 22). On September 11, 2014, an x-ray revealed severe degenerative arthritis of
her left hip, and her treating physician opined that “with her lumbar spine and her hip [it] is
going to be difficult for her to continue in the workplace.” (SAC at ¶ 23). On November 20,
2014, Donohue had hip replacement surgery that did not address her lumbar and thoracic issues.
(SAC at ¶ 24).
By letter dated February 25, 2015, Donohue applied to the Retirement Board for a
disability pension under the statute, stating that “due to severe degeneration of my back
I can no longer perform my job duties.” (SAC at ¶ 26). Donohue was examined by physicians
selected by a medical consultant, Dr. Costa, who has a contract with the Retirement Board to
make such selections. (SAC at ¶ 27). It is alleged that the Retirement Board did not provide Dr.
Costa with written guidelines for determining total and permanent physical disability, and Dr.
Costa did not provide any of the physicians who examined her with any such written guidelines.
(SAC at ¶¶ 28, 29).

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Donohue alleges that one of the examining physicians, Dr. Kasdan, exacerbated her
condition resulting in her being placed on bed rest for three weeks, and an examination was
then scheduled with a fourth physician. (SAC at ¶ 30). Each examining physician signed a form
that was not notarized, placing a check next to a statement that Donohue “IS NOT totally and
permanently disabled physically.” (SAC at ¶¶ 30, 32). Donohue claims that each of the
examining physicians (except Dr. Kasdan) informed her that she would be approved for
disability. (SAC at ¶ 31). One of the physicians, Dr. Valeriano, stated in a letter to the Board
dated May 22, 2015, that “I believe [Donohue is] disabled from work requiring lifting, climbing
or other types of manual labor. However, if accommodation could be made for reasonable break
times, she could attempt ‘sedentary work.’” (SAC at ¶ 33). Dr. Valeriano also provided a letter to
the Social Security Administration identical to that provided to the Retirement Board, in which
he concluded that Donohue is totally disabled due to back pain. Both versions of the letter were
based on the same exam. (SAC at ¶ 34). On the form provided to Dr. Costa, Dr. Valeriano
checked the statement that Donohue “IS NOT totally and permanently disabled physically” and
added “if accommodations made — see letter.” (SAC at ¶ 35).
On June 18, 2015, the Retirement Board denied Donohue’s application as none of the
examining physicians had determined her to be totally and permanently disabled. (SAC at ¶ 36).
On June 28, 2015, Donohue appealed the denial, and the Retirement Board conducted an appeal
hearing on January 14, 2016, at which she submitted evidence. (SAC at ¶¶ 38, 40). On July 6,
2015, the County terminated Donohue’s employment as she was unable to return to work and
indicated that there did not appear to be an accommodation that would enabled her to perform
the essential functions of her position. (SAC at ¶ 37). On September 27, 2015, the Social
Security Administration found Donohue to have become disabled (under its rules) on August 27,

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2014. (SAC at ¶ 39). On February 25, 2016, Donohue submitted a Reapplication for a Disability
Pension. (SAC at ¶ 41). On April 21, 2016, the Retirement Board remanded her initial
application to a second panel of physicians to determine whether she was permanently and
totally disabled at the time her employment was terminated. (SAC at ¶ 42).
In June and July 2016, Donohue was examined by three physicians selected by Dr.
Costa. (SAC at ¶ 44). None of the exams lasted longer than 20 minutes, and the physicians did
not take their own x-rays or request a functional capacity exam. (SAC at ¶¶ 47, 48). Each
examining physician completed and signed a form, checking a statement that Donohue “IS NOT
totally and permanently disabled physically.” (SAC at ¶ 49). On October 20, 2016, one of
Donohue’s treating physicians requested a functional capacity evaluation, which was performed
by a physician who ranked her capacity at a “Less than Sedentary level” and concluded she
would not be able to perform her former job. (SAC at ¶ 50). In November 2016, Donohue
submitted additional medical information to the Retirement Board including the results of the
functional capacity exam and independent reports of three non-treating physicians, “each of
whom undertook independent medical evaluation” lasting an hour or more and “concluded that
Donohue is totally and permanently disabled physically.” (SAC at ¶ 51). She also submitted the
records submitted to the Social Security Administration. (SAC at ¶ 43).
On December 16, 2016, Donohue was informed that her reapplication for benefits was
denied, and she requested an appeal hearing. (SAC at ¶ 52). On February 28, 2017, the
Retirement Board held a hearing regarding the denial of Donohue’s initial application on
remand and the denial of her reapplication. (SAC at ¶ 53). On June 13, 2017, the Hearing Officer
issued proposed findings of fact and conclusions of law which were adopted by the Retirement
Board on June 15, 2017. (SAC at ¶ 54). The Board declined to consider Donohue’s “independent

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medical evidence,” and concluded that its initial determination was supported by substantial
evidence and did not violate Donohue’s procedural or substantive due process rights. (SAC at ¶
55).
Plaintiff Donohue’s initial complaint was filed with the Allegheny County Court of
Common Pleas soon thereafter, on August 9, 2017 (ECF No. 1, Exhibit B) and the action was
removed to federal court on September 6, 2017. The suggestion of death, filed January 24, 2018,
indicates that Susan Donohue had recently passed away. (ECF No. 25). The court held a
telephonic conference two days later, at which time Plaintiffs’ counsel notified the court that the
estate of Susan Donohue would request to be named as a substitute party and also, a second
named Plaintiff would be added to the SAC.
B. Allegations as to Plaintiff Debora Kinest
Plaintiff Deborah Kinest (“Kinest”) was employed with Allegheny County as an
occupational therapy aide at Kane Hospital for 35 years. (SAC at ¶ 56). Kinest took a six month
leave for a knee replacement beginning February 14, 2014. (SAC at ¶ 57). Because she was
unable to return to work in her old position, a restorative aide position was created for her. (SAC
at ¶ 57). Kinest was in the restorative aide position for approximately 1½ years and took another
FMLA leave for a hip replacement on May 11, 2015. (SAC at ¶ 58). Following this surgery,
Kinest developed complications, including dropped foot neuropathy, a bowel obstruction, wound
vacuum and neuropathy, and she was in a nursing facility for rehabilitation until August 12,
2015. (SAC at ¶ 60). Kinest continued with rehabilitation at home with daily nursing visits for
the abdominal wound. (SAC at ¶ 60).
Kinest was unable to return to work in her previous position and Allegheny County did
not identify any position she was able to perform; therefore, on February 1, 2016, Kinest filed

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applied to the Retirement Board for a disability pension and submitted all medical records in
her possession to support the application. (SAC at ¶ 61). Kinest was examined by physicians
selected by Dr. Costa, who has a contract with the Retirement Board to make such selections.
(SAC at ¶ 62). It is further alleged there were no written guidelines for a determination of total
and permanent physical disability. (SAC at ¶¶ 63, 64). Kinest alleges that none of the three
physicians examined her, but rather spoke to her in an exam room for no more than 15 minutes.
(SAC at ¶ 65). Kinest also alleges that each informed her during the appointment that she would
be approved for disability. (SAC at ¶ 65). Each of the examining physicians completed and
signed a form, checking a statement that Kinest “IS NOT totally and permanently disabled
physically.” (SAC at ¶ 66). Dr. Hahalyak, noted that Kinest is “impaired neurologically and
orthopedically,” but concluded that despite “her pain syndrome and lack of sensation in the
lower extremities, her need for frequent position changes and inability to ambulate, I believe that
she is not totally and permanently disabled from any meaningful occupation.” (SAC at ¶ 67). Dr.
Hahalyak also provided a statement that Kinest “is not totally and permanently disabled from any
gainful employment due to her footdrop and chronic pain with numbness in her left leg and
foot.” (SAC at ¶ 67).
Dr. Biskin found “no permanent disability” based on Kinest’s abdominal operation,
without considering her other conditions. (SAC at ¶ 68). Dr. McGonigal noted Kinest’s “foot
drop, diabetes with diabetic polyneuropathy, generalized osteoarthritis, obesity, hyperlipidemia
and metabolic syndrome,” but stated that he did “not believe that the petitioner is totally and
permanently disabled from any gainful employment in Allegheny County.” (SAC at ¶ 69). The
physician opinions were forwarded to the Retirement Board on March 24, 2016. (SAC at ¶ 70).
Thereafter, the Board notified Kinest that her application was denied. (SAC at ¶ 71). Kinest did

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not appeal the determination “because she was not informed of what information she could
provide to reverse the denial of her Disability Pension application and/or the appellate
procedures available to her would have been inadequate, futile and/or incapable of providing
relief.” (SAC at ¶ 74).
Kinest began receiving reduced early pension benefit effective June 1, 2016. (SAC at ¶
72). In a June 26, 2016 Notice of Award, the Social Security Administration found that Kinest
became disabled (under its rules) on May 11, 2015, and that her entitlement to monthly disability
benefits would begin in November 2015. (SAC at ¶ 73). This finding was based on Kinest’s
application; there was no hearing before an administrative law judge. (SAC at ¶ 73).
Count I of the SAC alleges violations of Plaintiffs’ constitutional right to procedural due
process. Count II alleges violations of the constitutional right to substantive due process.
Plaintiffs have proposed a class defined as follows:
All County of Allegheny, Pennsylvania employees who have been
employed for a period of not less than twelve years, who have applied for a
Disability Pension under 16 P.S. §4711, and who have been denied such
Disability Pension on or after July 19, 2015, and all future County of
Allegheny, Pennsylvania employees who have been employed for a period of not
less than twelve years and will apply for a Disability Pension under
16 P.S. §4711.
SAC at ¶ 76.

Plaintiffs seek declaratory and injunctive relief in favor of Plaintiffs and the

proposed class, and compensatory damages, attorneys’ fees and costs as to Plaintiffs only. (SAC
at 18-19).
III.

Standard of Review
Dismissal of a complaint or portion of a complaint is justified under Federal Rule of Civil

Procedure 12(b)(6) when a claimant fails to sufficiently state a claim upon which relief can be
granted. Avoiding dismissal under Rule 12(b)(6) requires a pleading party’s complaint to
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provide “enough factual matter” to allow the case to move beyond the pleading stage of
litigation; the pleader must “‘nudge his or her claims across the line from conceivable to
plausible.’” Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) (quoting Bell
Atlantic Co. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d
651, 653 (3d Cir. 2003)). Moreover, a pleading party need only “put forth allegations that ‘raise
a reasonable expectation that discovery will reveal evidence of the necessary element[s].’”
Fowler, 578 F.3d at 213 (quoting Graff v. Subbiah Cardiology Assoc., Ltd., 2008 WL 2312671
(W.D. Pa. June 4, 2008)). A well-pleaded complaint, even when “it strikes a savvy judge that
actual proof of…facts is improbable,” will not be dismissed as long as the pleader demonstrates
that his or her claim is plausible. Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 55556).
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.”

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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).
Generally, 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. 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).
IV.

Discussion
The court will first address Defendant’s challenge to the sufficiency of the SAC and

whether plaintiff has sufficiently stated a claim upon which relief can be granted.
A. Motion to Dismiss
1. Count I: Procedural Due Process
Defendants argue that neither Plaintiff Donohue’s estate nor Plaintiff Kinest have set
forth a plausible procedural due process claim. The Fourteenth Amendment provides that “[n]o
state shall ... deprive any person of ... property, without due process of law.” U.S. CONST.
amend. XIV, § 1. The essential elements of a due process violation occur when a state actor
“deprive[s]” a person of “property.” U.S. Const. amend. XIV, § 1; see Gikas v. Washington Sch.
Dist., 328 F.3d 731, 735 (3d Cir. 2003). Thus, the threshold issues of any due process analysis

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are (1) whether the person possessed a cognizable property interest and (2) whether the person
suffered a deprivation of that interest by a state actor. Pappas v. City of Lebanon, 331 F. Supp.
2d 311, 316 (M.D. Pa. 2004).
We first address whether the Plaintiffs have sufficiently alleged a cognizable property
interest. According to Defendant, the statute only creates a property interest in a disability
pension for those who meet the statutory eligibility standards. As alleged, both applicants were
awarded federal Social Security disability benefits, but not a disability pension under the statute.
Both were found to be ineligible because the required unanimous medical opinions were lacking.
Property interests are “created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those benefits.” Board of
Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He must have
more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement
to it.” Id. Entitlement to a benefit has been found where the state has determined an individual is
entitled to the benefit, accorded the benefit to that individual, and that individual has a
reasonable expectation the benefit will continue in the future. See Lujan v. G & G Fire
Sprinklers, Inc., 532 U.S. 189, 195-96 (2001); American Mfrs. Mut. Ins Co. v. Sullivan, 526 U.S.
40, 60 (1999); Pappas, 331 F. Supp.2d at 317. On the other hand, where an individual merely
claims to be eligible for a benefit, but the state has not determined he is entitled to that benefit, as
is the case herein, the individual has no property interest in that benefit protected by procedural
due process. Lujan, 532 U.S. at 196; Am. Mfrs., 526 U.S. at 60-61; Pappas, 331 F. Supp. 2d at

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317-18. The difference is between entitlement and eligibility. See Pappas, 331 F. Supp. 2d at
217. Due process protects the former but not the latter. See Roth, 408 U.S. at 577.
With this framework in mind, it is clear that Plaintiffs have not sufficiently alleged that
they have a protected property interest in the benefits which they claim they are owed because
the Retirement Board, which has the authority to render a decision, has not determined they are
entitled to such benefits. Pappas, 331 F. Supp.2d at 319-20. “The Due Process Clause does not
require, nor permit, this Court to act as a supra-agency appeals board . . . or to replace the role of
the state courts in the benefits determination process.” Larsen v. State Employees' Ret. Sys., No.
4:07-CV-1838, 2008 WL 11363733, at *4 (M.D. Pa. Aug. 27, 2008) (citing Reich v. Beharry,
883 F.2d 239, 242 (3d Cir. 1989) and Lujan, 532 U.S. at 196-98).
As Plaintiffs argue, however, (ECF No. 42 at 9), they are asserting a property interest in
their claim for these benefits which was denied without adequate procedural protections.
In Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-31 (1982), the Supreme
Court recognized that property interests for the purpose of the Due Process Clause
include not only tangible benefits, but also the state-created right to redress of
grievances. The protected interest in a claim for benefits is separate from an
interest in the benefits themselves. See Lujan, 532 U.S. at 195; Am. Mfrs., 526
U.S. at 61 n.13. “When governing ‘rules or understandings' accord a cause of
action for an alleged harm, such as a breach of a state statute or contract, the
individual has a ‘legitimate entitlement’ to submit that claim for resolution
through established adjudicatory procedures. Although the individual is not
presently entitled to the remedy sought, he or she is entitled to press a claim for it.
This cause of action is a presently enforceable benefit and constitutes ‘property’
under the Due Process Clause.” Pappas, 331 F. Supp. 2d at 320.
Larsen, 2008 WL 11363733, at *5.
Defendants argue that procedural due process protections were met because the
Retirement Board provides an evidentiary hearing which was conducted pursuant to local agency
laws, including representation by counsel, a stenographic transcription, presentation of evidence
and cross-examination of witnesses. 2 Pa. C.S. §§ 552-554. Plaintiff Kinest did not avail herself
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of the hearing, and her application was denied after her physician opinions were forwarded to the
Board; she failed to appeal. Plaintiff Donohue did not subpoena and cross-examine the Boardappointed physicians at her counseled hearings.
“Deprivation of a cause of action occurs when adjudicatory procedures for vindication of
the claim are foreclosed” whether by final denial of the claim or obstruction of access to such
procedures. Pappas, 331 F. Supp. 2d at 321. “So long as adjudicatory procedures remain
available, the individual has not suffered a deprivation of the cause of action.” Id. As the Third
Circuit has explained:
In order to state a claim for failure to provide due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate. A state cannot be held to have
violated due process requirements when it has made procedural protection
available and the plaintiff has simply refused to avail himself of them. A due
process violation is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process. If there is a process on the
books that appears to provide due process, the plaintiff cannot skip that process
and use the federal courts as a means to get back what he wants.
Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
Plaintiffs allege they lacked notice of the eligibility standard, however. The Second
Class County Code, as explained supra, requires that three Board-designated physicians
determine that the applicant is “totally and permanently disabled” is equated with being “unable
to engage in gainful occupation.” According to Defendant, the definition of “totally and
permanently disable” are common standards and are defined in similar statutes including the
Pennsylvania Municipal Retirement Law and the Social Security Act. 53 P.S. §§ 881.212,
881.411, 42 U.S.C. § 416(i)(1). Defendants aptly note that it is incongruous that Plaintiff
Donohue hired three non-treating physicians of her own, who opined she was totally and

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permanently disabled, and then now avers she lacked notice of the meaning employed by the
physicians she hired.
Even so, Defendant argues, Plaintiffs have not alleged a plausible claim because they
failed to avail themselves of the process available under the local agency law, citing Jankowski v.
Retirement Bd. of Allegheny County, No. 1723 C.D. 2006 (Pa. Commw. Ct. April 16, 2007)
(unpublished), appeal denied, 937 A.2d 447 (Table) (Pa. Nov. 27, 2007) and Pappas v. City of
Lebanon, 331 F. Supp.2d 311, 316 (M.D. Pa. 2004). This argument is compelling.
Plaintiffs argue that the Board’s failure to adopt regulations or procedures for
implementing § 4711 violates their due process rights because it determines their entitlement to
an earned retirement benefit in a standardless way. Board-designated physicians are not
provided with guidelines or standards on which to base an opinion as to whether an applicant is
totally and permanently disabled physically. SAC at ¶ 13. This, Plaintiffs argue, is buttressed by
the fact that Plaintiffs did meet the standard set forth in the Social Security act, because they
were found by the SSA to be disabled under that statute. Plaintiffs further argue that the Board is
constrained by the statute to accept the unanimous opinion and statements of the three Boarddesignated physicians, which renders the hearing (and any appeal therefrom) meaningless as no
evidence can be presented to alter the outcome and any appeal would be futile.
Plaintiffs cite to numerous cases in support of their proposition that the lack of
ascertainable standards for disability retirement eligibility violates procedural due process. See
ECF No. 42 at 11-13. The vast majority of these cases are not binding on this court, and their
limited persuasive value is lost by the fact that the injured parties therein, recipients of a
government benefit, received either a notice of termination or a reduction in benefits without

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disclosure of the methodology for the decision, as opposed to applicants who are determined to
be ineligible for a benefit based on medical opinions.
As alleged in the SAC and as provided by law, the Retirement Board provides applicants
with copies of the medical reports and holds a full evidentiary hearing to denied applicants under
Local Agency law. 2 Pa. C.S. § 551 et seq.

The initial determination that an applicant is totally

and permanently disabled is based on the statutorily required unanimous opinions of three
physicians. Plaintiffs both failed to exhaust the adjudicatory procedures available to them under
state law. Donohue deferred her statutory appeal in the Court of Common Pleas (after requesting
and receiving two hearings at which she was represented by counsel but did not subpoena the
Board-appointed physicians for cross examination) (see ECF No. 33-1 at 2) and Kinest did not
request a hearing. This failure to utilize state law remedies bars the claims. We reiterate: “A
due process violation is not compete when the deprivation occurs; it is not complete unless and
until the State fails to provide due process. If there is a process on the books that appears to
provide due process, the plaintiff cannot skip that process and use the federal courts as a means
to get back what he wants.” Alvin, 227 F.3d at 116. Moreover, applicants are provided with a
copy of the medical reports from the Board-designated physicians, are given an opportunity to
respond, to subpoena and cross-examine the physicians and seek clarification of procedures used
by the physicians, question their qualifications, and the like. Some such appeals have been
successful, as based upon the uncontroverted public record provided by Defendants. See ECF
No. 46 at n. 1.
After a careful review of the allegations in the SAC and the applicable case law, we find
that the Plaintiffs have not alleged facts sufficient to support their procedural due process claims.
The motion to dismiss will be granted as to Count I.

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2. Count II: Substantive Due Process
Next, Defendants seek the dismissal of Count II. At issue is whether Plaintiffs have
stated a clam for denial of substantive due process, specifically, whether that statute is a facially
invalid legislative act, 2 which is to say, whether there is a legitimate state interest to which 16
P.S. § 4711 is rationally related. To demonstrate that the act has a rational basis, defendant must
demonstrate 1) the existence of a legitimate state interest that 2) could be rationally furthered by
the statute. American Express Trav. Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366
(3d Cir. 2012). The rational basis test, although not a toothless one, requires significant deference
to the legislature's decision-making and assumptions.” Id. (internal quotation marks and
citations omitted). Accordingly, “a court's inquiry is limited to whether the law ‘rationally
furthers any legitimate state objective.” Id. at 367 (quoting Malmed v. Thornburgh, 621 F.2d
565, 569 (3d Cir. 1980)). In the Third Circuit, “[i]t is enough that the State offers a conceivable
rational basis for its action, and ‘[t]he court may even hypothesize the motivations of the state
legislature to find a legitimate objective promoted by the provision under attack.’” Id. (quoting
Malmed, 621 F.2d at 569). It is “constitutionally irrelevant whether this reasoning in fact
underlay the legislative decision[.]” Id. (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960));
see also Morlok v. City of Philadelphia, No. CV 17-4213, 2018 WL 6092719, at *5 (E.D. Pa.
Nov. 21, 2018).
The statute clearly survives rational basis review. There do not appear to be any
precedential cases on point, but nevertheless, Defendants have posited numerous legitimate
government interests, including limiting the Retirement Board’s discretion and preventing
potential waste while preserving the financial condition of the pension fund maintained for the

2

Plaintiffs appear to concede that they are not asserting substantive due process claims based on non-legislative
action and we will therefore not address such a claim.

16

benefit of a broad range of employees. The statute was amended by the Pennsylvania General
Assembly in 1955 when lawmakers inserted the word “unanimous” to the statutory language.
1955, May 31, P.S. 111, § 1. There is a rational basis to establishing a strict approval process
that requires the unanimous agreement of three physicians, rather than a single physician, when
making the determination on a claimant’s total and permanent disability status. The Retirement
Board’s discretion is therefore limited. This prevents waste and abuse. For all of these reasons,
we find that Plaintiffs have failed to state a facial-challenge substantive due process claim.
Accordingly, Defendants motion to dismiss will be granted with respect to plaintiff’s
substantive due process claim raising a facial challenge to the statute at Count II.
B. Motion to Strike Class Allegations
Defendant has also moved, to the extent the court determines that Plaintiffs have
advanced a viable constitutional claim at either Count I or II, that the class action allegations be
stricken and/or dismissed, pursuant to Federal Rule of Civil Procedure 12(f). That rule permits
the court to strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter. Having determined that Plaintiffs’ claims do not survive the
motion to dismiss, we will deny the motion as moot.3
V. CONCLUSION

3

The Supreme Court of the United States has recognized that with respect to class certification under Federal Rule
of Civil Procedure 23, “[s]ometimes the issues are plain enough from the pleadings to determine whether” class
certification is appropriate in a given case. General Tel. Co. of the Southwest. v. Falcon, 457 U.S. 147, 160, 102
S.Ct. 2364, 72 L.Ed.2d 740 (1982). The United States Court of Appeals for the Third Circuit has explained that in
“rare” cases, “where the complaint itself demonstrates that the requirements for maintaining a class action cannot be
met,” a court may strike class allegations contained in a complaint. Landsman & Funk PC v. Skinder–Strauss
Assocs., 640 F.3d 72, 93 n. 30 (3d Cir. 2011). Federal Rules of Civil Procedure 12 and 23 allow courts to strike
class allegations at the pleading stage “if class treatment is evidently inappropriate from the face of the complaint.”
Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp.3d 610, 615 (E.D. Pa. 2015). Based on our review
of the public records provided by Defendants, it appears likely that Plaintiffs would not be able to meet the
requirement of numerosity,and given the highly individualized nature of the application process, it is uncertain
Plaintiffs could meet the typicality prong as well.

17

For the reasons stated herein, Defendants Motion to Dismiss the second amended class
action complaint (ECF No. 32) will be granted and the Motion to Strike the class action allegations,
or, in the alternative, to deny class certification. (ECF No. 34) will be denied as moot.
An appropriate order follows.

DATED: December 21, 2018

By the Court:
/s/ Cynthia Reed Eddy
Hon. Cynthia Reed Eddy
Chief United States Magistrate Judge

cc: Record Counsel

18

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSEPH DONOHUE, Executor of the
Estate of SUSAN DONOHUE, and
DEBORAH KINEST, individually and on
behalf of all persons similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
THE RETIREMENT SYSTEM OF
)
ALLEGHENY COUNTY and
)
RETIREMENT BOARD OF ALLEGHENY )
COUNTY,
)
)
Defendants.
)

C.A. 17-1167

ORDER
AND NOW, to-wit, this 21st day of December, 2018, Defendants’ Motion to Dismiss the
Second Amended Class Action Complaint (ECF No. 32) is hereby GRANTED and said complaint
is dismissed with prejudice.
IT IS FURTHER ORDERED that the Motion to Strike the Class Action Allegations, or, in
the Alternative, to Deny Class Certification. (ECF No. 34) is DENIED AS MOOT.
The Clerk of Court is directed to mark this case CLOSED.

/s/ Cynthia Reed Eddy
Hon. Cynthia Reed Eddy
Chief United States Magistrate Judge
cc: Record Counsel

19