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SKEPTON v. COUNTY OF BUCKS

July 19, 1985

FRANKLIN E. SKEPTON, Plaintiff
v.
COUNTY OF BUCKS, PENNSYLVANIA, ANDREW L. WARREN and CARL F. FONASH, in their official capacities as Commissioners of Bucks County, ELAINE P. ZETTICK, PETER A. NACCARATO, P.E., O'DONNELL and NACCARATO, INC., McCLYMONT ASSOCIATES, VAUGHN ORGANIZATION, Defendants



The opinion of the court was delivered by: LUONGO

 This case exemplifies how an imaginative lawyer can transform a routine contract suit into a "federal case" in the historic sense of that term. At root is a general contractor's midstream termination by a County and its agents. The legal claims include a treble damage action under the antitrust laws, a suit for deprivation of constitutional rights (including the right of free speech) under color of state law, and an "implied" cause of action under the Fourteenth Amendment. Now before me are defendants' motion to dismiss the complaint and defendants' motion for sanctions under Fed.R.Civ.P. 11. For the reasons that follow, I will grant defendants' motion to dismiss. I will allow plaintiff to amend his claim under § 1983 and the First Amendment if, within the strictures of Rule 11, plaintiff can make specific allegations as to how his free speech rights were violated. Finally, I will deny defendants' motion for sanctions at this time.

 I.

 The precise nature of plaintiff's legal claims is not clear. I will therefore begin with an analysis of his complaint, and later seek to relate his allegations to recognized causes of action.

 Plaintiff is a general contractor who was awarded a contract to act as general contractor for Bucks County's new correctional facility. The defendants include: Bucks County; Andrew L. Warren and Carl F. Fonash, who are or were Commissioners of Bucks County; Elaine P. Zettick, Chairman of the Bucks County Commissioners; O'Donnell & Naccarato, a structural engineering firm, and Peter A. Naccarato, its agent; McClymont Associates Inc., a soils engineering firm; and Vaughn Organization, an architect. *fn1"

 As part of the contract, Bucks County required the "Contract Sum" -- presumably the bid -- to include an allowance of $60,000.00 for "purchase of testing and inspection services for soils, concrete, masonry and paving." According to plaintiff's own allegations, the contract also stated that the Contractor "will not be required to employ persons against whom the Contractor makes a reasonable objection."

 Plaintiff alleges that at a preconstruction meeting in March, 1983, Peter Naccarato, acting as Construction Manager, directed plaintiff to employ McClymont as soils engineer. Again according to plaintiff's own allegations, it is admitted that plaintiff made no objection to McClymont, and commenced work. Plaintiff states that he had no knowledge of McClymont's qualifications when work began.

 When plaintiff began operation he claims that he encountered topsoil of far greater depths than McClymont's report had disclosed. The contract required plaintiff to strip the site of topsoil which McClymont had measured at a depth of four inches, whereas plaintiff found topsoil from twelve to fourteen inches deep.

 Plaintiff alleges that, upon discovering said discrepancies, he raised an immediate objection to further use of McClymont with the Commissioners, Vaughn, and Mr. Naccarato. Plaintiff alleges that defendants' refusal to permit him to replace McClymont violated the contract.

 On April 24, 1983, plaintiff alleges that the Commissioners, Naccarato & O'Donnell, Vaughn, McClymont, "and possibly others" held a closed meeting at which Naccarato, Vaughn, and McClymont recommended that plaintiff be terminated and that the Commissioners decided to do so. It is alleged that the closed meeting violated Pennsylvania's open meeting and "sunshine" laws. On April 25, 1983, the Commissioners ordered Skepton to terminate work on the prison.

 In Counts I and II of the complaint, plaintiff seeks relief under the "antitrust laws." In Count I, plaintiff alleges that his termination was caused by an unlawful conspiracy among the defendants to deny him the economic freedom to choose his own soils engineer. In Count II, plaintiff specifies the nature of the alleged antitrust violation as a tying arrangement. Plaintiff also alleges that he was terminated in retaliation for his objection to McClymont's report and for the purpose of preventing plaintiff from securing McClymont's termination. Plaintiff alleges that defendants so acted for "their own interest and economic benefit."

 Count III seeks redress for alleged violations of plaintiff's free speech rights. Plaintiff alleges that his threatened disclosure of the erroneous soils report was protected speech, that he was terminated as a retaliatory measure when he announced his intention to make disclosure, that the Commissioners acted under color of state law, and that the other defendants acted in conspiracy with them. In addition to actual damages, plaintiff seeks counsel fees and punitive damages. The actual damage claim of $1.5 million apparently refers back to Count I (para. 32) where plaintiff claims damage to his reputation and goodwill.

 Count IV asserts a second civil rights claim -- deprivation of his property interest (in the contract) without due process of law. Plaintiff asserts that his due process rights were denied because defendants failed to abide by the terms of the contract and because the meeting at which the decision to terminate him was made occurred in violation of Pennsylvania's open meeting and sunshine laws. Punitive damages and attorney fees are sought under Count IV.

 Finally, Count V asserts an implied cause of action for "direct" violation of plaintiff's rights under the Fourteenth Amendment.

 II.

 In response to plaintiff's undeniably vague antitrust allegations, the defendants have launched a variety of preliminary challenges. The first, pressed heavily in defendants' initial brief, but much less so in their reply memorandum, is that plaintiff has not sufficiently pled subject-matter jurisdiction, to wit: the interstate commerce element.

 A review of plaintiff's complaint reveals a bare bones series of interstate commerce allegations. Plaintiff alleges that defendants' illegal conduct had a substantial and adverse impact on interstate commerce by denying to Skepton, its employees and subcontractors the economic benefit which would have flowed from performance of the contract, by denying to out-of-state engineers the right to work on the project, and by denying Skepton the ability to transact business in Bucks County. Additionally, in response to defendants' motion to dismiss, plaintiff submitted an affidavit which states that financing for the project was obtained through an interstate sale of tax-free bonds, that many of plaintiff's subcontractors were from out-of-state, and that much of the supplies used to build the prison came through interstate commerce.

 In view of the substantive defects in plaintiff's complaint and the fact that amendment would certainly enable plaintiff to establish a jurisdictional basis, I will decline to dismiss this case for lack of subject matter jurisdiction. Although defendants rightly criticize the skeletal jurisdictional allegations in the complaint, our court of appeals has recently emphasized that minimal assertions of the impact of antitrust violations on interstate ...


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