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March 31, 1995


The opinion of the court was delivered by: J. CURTIS JOYNER


 MARCH 31, 1995

 This litigation arises out of the termination of Plaintiff Frances Pierce from her position as Executive Director of the Montgomery County Opportunity Board, Inc. (MCOB). *fn1" Defendants are the MCOB, several of its directors (MCOB Defendants) as well as two officials of Pennsylvania's Department of Community Affairs (State Defendants). All Defendants have moved to dismiss the Amended Complaint, and MCOB Defendants seek in the alternative a more specific complaint.

 In Plaintiffs' Opposition to this Motion to Dismiss, or in the Alternative for a More Specific Complaint, Frances Pierce alleges that her termination was a breach of her employment contract (Count One), as well as a wrongful discharge (Count Three). In addition, she alleges a civil conspiracy, violation of her First Amendment rights and malicious interference with her contractual rights (Count Three). Pierce's husband, Jude Pierce also brings two causes of action; one under a third party beneficiary theory for benefits under Pierce's medical insurance (Count Two) and a second for loss of his wife's consortium (Count Four).

 This itemization of Plaintiffs' causes of action is derived from the Brief in Opposition because even after many careful readings of the Amended Complaint, especially Count Three, this Court is not entirely sure which causes of action Plaintiffs pursue. Accordingly, we have looked to the representations in the Brief to clarify their intent.


 Taking the facts alleged in the Amended Complaint as true, Pierce is and has been a Republican Committeewoman at all material times and votes for Republican political candidates. In August, 1990, Pierce was made the Acting Executive Director of MCOB. At some point after August, 1990, State Defendants, presumably Democrats, resolved to have Pierce removed from the head of MCOB, allegedly for political reasons. In June, 1991, Pierce was appointed MCOB's Executive Director for a five-year term at a certain salary and with certain benefits.

 In November, 1991, *fn2" State Defendants arranged to terminate MCOB's federal funding, allegedly because Pierce's active Republicanism created a prohibited conflict of interest under Federal regulations. *fn3" In May, 1992, MCOB Defendant Harvey Portner was appointed to the MCOB Board and at some point became its President. He apparently asked Pierce to resign as Executive Director, and when she refused, embarked upon a campaign to impugn Pierce's reputation. In August, 1992, the other MCOB Defendants (including at least one Republican) joined in a conspiracy with Portner and the State Defendants to remove Pierce from MCOB on account of her Republicanism.

 In December, 1992, Portner resigned as President of the Board so as to "create an aura of non-involvement," but nonetheless, "maintained effective control over the Opportunity Board." Id. at PP 39, 48. He was replaced by MCOB Defendant Aaron Schell, a Republican.

 On December 16, 1992, Schell informed Pierce that the MCOB Board was to meet with the Department of Community Affairs, told Pierce that he did not know the purpose of the meeting, and then did not attend the meeting himself. At this meeting, State Defendants informed the Board that they were there to close down MCOB. According to the Amended Complaint, the "purpose of the attendance of defendants Darling and Weisberg was to give a basis for the actions which were planned sub rosa to remove Frances Pierce from her job as Executive Director." Id. at P 41. One month later, the MCOB Board voted to remove Pierce as Executive Director.


 In considering a 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

 In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).



 Pierce argues that she has pleaded the legal effect of the contract, which is all that the Federal Rules' notice pleading structure requires. Moreover, Pierce indicates that a copy of the contract was attached to the original complaint filed in state court before the action was removed to this Court so that MCOB is aware of the contact.

 We find that Federal Rule of Civil Procedure 8(a) permits a plaintiff to assert the existence of an express, written contract either by setting it forth verbatim in the complaint, or the plaintiff may "attach a copy as an exhibit, or plead it according to its legal effect." 5 Charles A. Wright, Arthur R. Miller, Federal Practice and Procedure, § 1235 at 273 (1990); Goshen Veneer Co. v. G.&A. Aircraft, Inc., 3 F.R.D. 344, 345 (E.D. Pa. 1944); Stephens v. American Home Assurance Co., 811 F. Supp. 937, 958 (S.D.N.Y. 1993).

 Accordingly, so long as Pierce has pleaded all the necessary elements of a breach of contract action, Count One can stand. To maintain the cause of action, the complaint must allege (1) the existence of a valid and binding contract, (2) that Plaintiff has complied with the contract and performed her own obligations under it, (3) fulfillment with all conditions precedent, (4) a breach of the contract, and (5) damages to plaintiff. Federal Practice and Procedure, § 1235 at 269-71.

 Here, Pierce alleges the existence of a written contract, as well as its terms. Amended Complaint P 16. The Amended Complaint also alleges the existence of written personnel policies concerning termination procedures. Id. at PP 18, 19. Pierce specifically pleads that she has complied with all conditions precedent and alleges damages in the amount of lost wages and loss of insurance. Id. at P 20.

 Pierce does not specifically plead that the contract was breached or that she complied with all its terms, but we find that those two elements can be reasonably inferred from the Amended Complaint. Paragraph 17 alleges that "during the term of the employment contract, [defendant] notified Frances Pierce that 'we no longer desired your services as the Executive Director', the position contemplated by the written contract, and Frances Pierce was thereafter effectively removed from her position." Although the word "breach" is not used in this sentence, it is evident that it is intended to demonstrate a breach. Likewise, Paragraph 20's allegation that Plaintiff complied with all conditions precedent to the contract can also be seen to allege that she was in compliance with the contract and performed her own obligations under it.

 Accordingly, we find that Plaintiff has adequately pleaded breach of an employment contract in Count One and Deny MCOB Defendants' Motion to Dismiss it for failure to state a claim upon which relief can be granted.


 Count Two asserts a third-party beneficiary cause of action by Jude Pierce against MCOB only. The Amended Complaint baldly alleges, "Jude C. Pierce, as husband of Frances Pierce and residing with her, is a third-party beneficiary of the said employment contract as to health care coverage which was at all times during the course of his wife's employment applicable to him." Amended Complaint P 22.

 MCOB Defendants seek to dismiss this Count on the basis that the facts behind any third-party beneficiary status are omitted, and therefore, the Count fails to state a claim for which relief can be granted. They cite Rex Craft Associates v. Small Business Administration, 716 F. Supp. 166 (M.D. Pa. 1989) for the substantive law concerning the creation of third-party beneficiary status in Pennsylvania.

 In neither the Amended Complaint or the Brief in Opposition does Jude Pierce make any allegations to support his assertion that he is a third-party beneficiary to his wife's employment contract. The Amended Complaint does not provide the terms of the employment contract in which Jude Pierce allegedly has an interest, what that interest is, how he obtained it, or any other facts relevant to show third-party beneficiary status. MCOB, therefore, has no basis on which to deny or admit the allegations in Count Two.

 Although we could dismiss this Count with prejudice, we find that under the liberal approach to pleading in the Federal Rules, justice would be better served by permitting Jude Pierce the opportunity to replead this Count and provide the missing information, if possible. ...

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