by the District Attorney of Mercer County, Samuel J. Orr, and by Mercer County. Defendants Hersh and Epstein are alleged to have been duly appointed Assistant District Attorneys of Mercer County, acting under color of state law. Defendant County of Mercer, a political subdivision of the Commonwealth of Pennsylvania, allegedly ratified and approved the conduct of Defendants Orr, Hersh and Epstein. Defendant Mifsud is a sergeant in the Pennsylvania State Police of the Commonwealth of Pennsylvania. Defendants Kramer, White and Tomko are police detectives employed by the City of Sharon, Mercer County, a political subdivision of the Commonwealth of Pennsylvania.
Count 1 of the Amended Complaint seeks compensatory and punitive damages against Defendants for the intentional state law tort of interference with right to freedom of association, defamation of character, and interference with economic rights.
Count 2 of the Amended Complaint alleges the negligence of Defendants and employees in discharging Plaintiff from employment, and defamation.
Count 3 of the Amended Complaint alleges the breach of an employment agreement.
Count 4 of the Amended Complaint alleges a violation of the right to freedom of association as guaranteed by the First Amendment and seeks relief under 42 U.S.C. §§ 1983 and 1985(3).
Defendants have filed numerous Motions to Dismiss which are the subject of this Opinion.
Plaintiff claims that the Defendants Orr, Epstein, and Hersh, who allegedly discharged Plaintiff; and the County of Mercer, which allegedly approved and ratified the action of the District Attorney; interfered with Plaintiff's right of association with Attorney Palmer and Police Officer Lenzi, by discharging her on June 1, 1981, which discharge was solely motivated by Defendants' desire to punish her for her association with Palmer and Lenzi, which association was proper, lawful, and not subject to direction or control by Defendants. It is claimed that Defendants Orr, Epstein and Hersh procured plaintiff's discharge to punish her for that association; that Defendant County of Mercer ratified and confirmed Defendants' actions; and that Defendants Mifsud, Kramer, Tomko and White participated in an unwarranted interrogation of Plaintiff which was part of the plan to discharge Plaintiff; and Defendant City of Sharon ratified and confirmed the actions of White and Tomko. Plaintiff further charges that Defendants conspired with each other for the purpose of depriving Plaintiff of the equal protection of laws and equal privileges and immunities under the law, in violation of 42 U.S.C. § 1985(3).
The following facts are alleged as the basis for Plaintiff's claims:
According to the allegations contained in the Amended Complaint, Plaintiff was hired in 1974 by the County of Mercer as a clerk/typist in the Tax Assessment Office. On or about February 1977, Plaintiff became aware of a job as a Secretary in the District Attorney's office for the County of Mercer, and was hired for such position, and was responsible to Defendants Orr, Epstein and Hersh.
On or about February, 1980, Defendant Hersh worked part time for the District Attorney and maintained a private law office. Plaintiff performed messenger services for Hersh and the District Attorney in bringing materials between the two locations.
During Plaintiff's employment, she became socially and professionally acquainted with Frances Palmer, an Assistant District Attorney and prosecutor of narcotics cases, and Gary Lenzi, a police officer of Sharon, Pennsylvania, assigned to the Mercer County Narcotics Investigation Unit. Such association, it is alleged, had no impact on Plaintiff's work as a secretary in the District Attorney's office, but was the basis of her discharge.
On or about February, 1980, Defendant Hersh allegedly stated to Plaintiff his belief that Palmer and Lenzi were attempting to undermine Hersh's representation as a private attorney to the Sharon Fraternal Order of Police, and that he would "get" Palmer and Lenzi, as well as the Plaintiff. Plaintiff related the above conversation to Defendant Orr who told Plaintiff she could associate with whomever she pleased.
The next day Defendant Epstein summoned Plaintiff to his office and allegedly chastised Plaintiff for reporting the Hersh conversation to Defendant Orr.
Plaintiff also alleges the existence of animosity and professional jealousy between Palmer and Lenzi against the Defendants from 1978-1981. In 1980, Defendants allegedly secured investigations of the Narcotics Unit by the Pennsylvania State Police and the Pennsylvania Crime Commission, which showed no evidence of wrongdoing.
On or about May 11, 1981, Lenzi apparently arrested the son of the Farrell Police Chief which resulted in additional animosity and a private complaint of criminal assault being brought against Lenzi, which was later dismissed. Plaintiff alleges that in light of this animosity by Defendants against Lenzi and Palmer, her association with them was the basis for her discharge.
On May 18, 1981, Plaintiff was allegedly interrogated by Defendants Orr, Mifsud, White and Kramer about events leading to the lodging of the criminal complaint against Lenzi. Plaintiff was again interrogated on May 20, 1981, by Kramer, Tomko and White, allegedly as a suspect for leak of information concerning the charge against Lenzi. At the conclusion, Plaintiff advised that she was going to retain an attorney and further discussion could be had with said attorney.
On May 20, 1981, Plaintiff's work location was changed and her duties were changed. Plaintiff alleges that this change was punitive in view of its timing following her interrogation, which is alleged to be willful, reckless and malicious.
On Monday, June 1, 1981, Plaintiff reported to work and Defendant Orr told Plaintiff her employment was terminated, and stated he was not required to give a reason for said termination. Defendant Hersh was present at Plaintiff's termination, and allegedly ratified, confirmed and joined in the action. Plaintiff received unemployment compensation after her termination.
On June 21, 1981, the Mercer County Board of Commissioners reaffirmed that department heads must have a justification for the termination of any employee, but Plaintiff was not recalled to work as a result of such communication.
We first address the federal constitutional claims under 42 U.S.C. §§ 1985(3) and 1983.
A. The 1985(3) Claim
42 U.S.C. § 1985(3) reads in pertinent part:
If two or more persons in any State . . . conspire . .. for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State . . . from giving or securing to all persons within such State . . . the equal protection of the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury, or deprivation, against any one or more of the conspirators.
In order to state a cause of action under this section, the complaint must contain an allegation of some racial or otherwise class-based invidiously discriminatory intent:
The language [of 42 U.S.C. § 1985(3)] requiring intent to deprive of equal protection or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirator's actions.
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) (emphasis in original). The Supreme Court has never abrogated this requirement. See United Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983).
The Amended Complaint fails to allege the existence of any class-based invidiously discriminatory animus underlying the actions of the Defendants. It clearly appears from the face of the Amended Complaint that the actions of the Defendants were directed against the Plaintiff as an individual, and not as a member of a class. The Amended Complaint therefore fails to state a claim under 42 U.S.C. § 1985(3).
B. The § 1983 Claim
The basis of the section 1983 claim is that the conduct of Defendants constituted the violation of the right of freedom of association as guaranteed by the First Amendment. (See para. 62(a) of the Amended Complaint). The factual basis for this allegation is set forth in paragraphs 49 and 52 of the Amended Complaint as follows:
49. Plaintiff believes that her discharge was solely motivated to punish her for her association with Palmer and Lenzi by reason of the sequence of events set forth in the foregoing paragraphs as well as the specific statements made by defendant, Hersh, as to his desire to secure plaintiff's dismissal; the continuing animosity of defendants Orr, Epstein and Hersh, against Palmer and Lenzi and the timing of her discharge coming only a few days after the charges brought against Lenzi had been dismissed. The defendant, County of Mercer, has ratified and approved the action of defendants, Orr, Epstein and Hersh, in the termination of plaintiff as most vividly set forth in its action to not veto the discharge of plaintiff by defendants, Orr, Epstein and Hersh, when the same was without cause and contrary to her right of association but rather simply permitted the discharge to stand and directed other future discharges must conform to this policy.