bid on public contracts for three years. Id., 780 F.2d at 297-98.
Berlanti filed a 42 U.S.C. § 1983 civil rights action, alleging that New Jersey's debarment of him personally was done without notice and a hearing as to his individual responsibility, and so deprived him of property without due process of law. The district court, relying on Parratt v. Taylor, concluded that no due process violation occurred, because the state provided adequate post-debarment remedies. Berlanti, 780 F.2d at 301.
The third circuit reversed. The court of appeals found that Berlanti had a property interest in not being arbitrarily debarred, which entitled him to some procedural protection under the due process clause. Id, 780 F.2d at 300.
The court also found that "the availability of post-deprivation remedies was irrelevant. . . . If the government entity could have, but did not, provide predeprivation procedures, a § 1983 action complaining of the lack of procedural due process may be maintained in federal court, notwithstanding the availability of state judicial routes as well." Id., 780 F.2d at 301 (quoting Stana v. School District of City of Pittsburgh, 775 F.2d 122 (3d Cir. 1985)).
This case is substantially similar to Berlanti. While in Berlanti the constitutionally protected interest was characterized as "property," and is characterized as "liberty" here, the substance of the protected interest is analogous. In each case, the interest to be protected is the interest in status as an entity or person eligible for bidding on public contracts. We conclude that, on the facts alleged in the Amended Complaint, Fox was entitled to some sort of "predeprivation procedures" before it was stripped of its "responsible bidder" status. Since the Amended Complaint alleges that Fox was stripped of its status without any predeprivation notice or opportunity to respond, the motion to dismiss Count I must be denied.
While we conclude that Count I of the Amended Complaint pleads facts sufficient to survive a motion to dismiss, we note that some of Fox's allegations are rather conclusory. The Amended Complaint alleges that "all bidders for public contracts must disclose whether the bidder has ever been discharged by a public entity or agency," and implies that the discharge of a contractor is sufficient to remove its "responsible bidder" status and prevent it from bidding on public contracts. Amended Complaint P 51. However, it appears that the question of whether termination of the fuel delivery agreement under the circumstances alleged must be reported in future contract bids, and whether that termination actually deprived Fox of responsible bidder status, are matters of law.
The Allegations of the Amended Complaint also sweep very broadly, implicating all twenty-eight defendants without any discrimination as to the specific actions taken by each one. For an individual to be liable under 42 U.S.C. § 1983, he or she must have some personal involvement in the deprivation of the constitutionally protected right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3, 101 S. Ct. 1908, 1913 n. 3, 68 L. Ed. 2d 420 (1981); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)). In addition, § 1983 claims against the DCIU, DCSJPB, and school defendants board defendants can succeed only if those defendants acted pursuant to a institutional policy practice or custom. See Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
B. Count II (Breach of Contract)
In Count II of the Amended Complaint, Fox claims that "defendants breached their fuel purchase agreement with [Fox] by wrongfully and unreasonably canceling Fox Fuel's right to provide petroleum products to the Delaware County Schools that were members of the DCSJPB." Amended Complaint P 57. A number of defendants have moved to dismiss plaintiff's breach of contract claim, arguing that there was no privity of contract between them and the plaintiff, and that they cannot be held liable for breach of a contract to which they were not parties.
"It is fundamental contract law that one cannot be liable for a breach of contract unless one is a party to that contract." Electron Energy Corp. v. Short, 408 Pa. Super. 563, 567, 597 A.2d 175, 177 (1991) (citing Viso v. Werner, 471 Pa. 42, 46, 369 A.2d 1185 (1977)), aff'd without opinion, 533 Pa. 66, 618 A.2d 395 (1993). Thus, Count II must be dismissed except with respect to those defendants with whom the Amended Complaint alleges Fox had a contract.
The Amended Complaint is less than a model of clarity on the question of who was party to the fuel distribution contract. Fox alleges that DCSJPB awarded it "the exclusive right for one year to supply diesel fuel and gasoline to various entities, specifically including several Delaware County school districts, who were members of the DCSJPB and/or who participated in the joint purchasing of said fuel and gasoline from Fox." Amended Complaint P 41. The most natural interpretation of this pleading is that the contract in question was awarded by the DCSJPB. Under this reading of the Amended Complaint, there was no privity of contract between Fox and any other defendant, with the possible exception of DCIU, of which DCSJPB is allegedly a subunit.
Read more broadly, however, the Amended Complaint pleads that the school district defendants were parties to the fuel purchase agreement, by virtue of the claim that they "participated in the joint purchasing of said fuel and gasoline from Fox." Therefore, we will deny the motion to dismiss Count II as to the school district defendants, as well as with respect to DCIU and DCSJPB. Even with a charitable reading of the Amended Complaint, however, we cannot find that the individual defendants were parties to the contract. Therefore, Count II must be dismissed as to those defendants.
C. Count III (Fraudulent Misrepresentation)
Count III of the Amended Complaint attempts to state a claim for fraudulent misrepresentation, alleging that:
Defendants made representations to plaintiff concerning what would constitute "acceptable performance security," knowing that plaintiff would rely on these representations. The individuals who made these representations included, but were not limited to, Michael Coll, the Solicitor for the DCSJPB and Susan C. Owens, the Chairperson of the DCSJPB.