The Brief in Opposition identifies those claims as civil conspiracy and malicious interference with contractual rights.
As a preliminary matter, State Defendants seek to dismiss all state claims against them on the basis that they are protected by sovereign immunity. The Pennsylvania General Assembly has recently "reaffirmed by statute the concept of immunity for the Commonwealth and its employees." Shoop v. Dauphin County, 766 F. Supp. 1327, 1333 (M.D. Pa. 1991). Under 1 Pa. Cons. Stat. Ann. § 2310 (Supp. 1994), "the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity." This language has been held to immunize State employees acting within the scope of their duties from even their intentional torts. Shoop, 766 F. Supp. at 1334; La Frankie v. Miklich, 152 Pa. Commw. 163, 170, 618 A.2d 1145, 1149 (1992) ("Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims").
In response to State Defendants' immunity argument, Pierce simply states, "Plaintiffs assert that [State Defendants] were acting outside the scope of their offices in participating in a scheme to have her removed from her job. They were not acting within the scope of their duties, it is alleged, and such question of fact is at the basis of the sovereign immunity argument advance [sic] on page 17 of Darling and Weisberg's Memorandum." Brief in Opp. at 8. Pierce suffers under two misapprehensions on this point. First, whether a question of fact exists is irrelevant to this Rule 12(b)(6) motion to dismiss. Second, the Amended Complaint at no time alleges that State Defendants ever acted outside the scope of their duties. In fact, almost every time the State Defendants are mentioned in the Amended Complaint, there is either a specific averment that they were acting within the scope of their duties or a specific description of them performing a State function. Amended Complaint PP 27, 30-32, 41, 52.
Taking the allegations in the Amended Complaint as true, we find that Pierce has pleaded facts such that State Defendants are entitled to sovereign immunity. Accordingly, all state law claims against the State Defendants are hereby DISMISSED.
As a second preliminary matter, MCOB Defendants seek to dismiss these claims on the ground that they are precluded under the exclusivity provisions of Pennsylvania's Workmen's Compensation Act, 77 Pa. Cons. Stat. Ann. §§ 1-621 (1992) (Worker's Compensation).
MCOB Defendants argue that "the exclusivity provisions broadly hold that workers compensation bars an employee's recovery for intentional torts arising out of the employment context." MCOB Brief at 12-13. They cite cases addressing suits for intentional infliction of emotional distress to support this claim. Rodgers v. Prudential Ins. Co., 803 F. Supp. 1024 (M.D. Pa. 1992), aff'd, 998 F.2d 1004 (3d Cir. 1993); Papa v. Franklin Mint Corp., 400 Pa. Super. 358, 583 A.2d 826 (1990); Gonzalez v. CNA Ins. Co., 717 F. Supp. 1087 (E.D. Pa. 1989).
Pierce argues that her claims are not barred by Worker's Compensation because she seeks damages for loss of income, costs of seeking new work, damages to her reputation from the dismissal, and post-employment emotional distress, all of which were incurred after her employment relationship with MCOB terminated. She cites other states' cases for the proposition that suits for post-employment damages are not pre-empted by worker's compensation. Brief in Opp. at 10 (citing Flanigan v. Prudential Fed. S&L Ass'n, 221 Mont. 419, 720 P.2d 257 (Mont. 1986); Ortiz v. Bank of America, 824 F.2d 692 (9th Cir. 1987); Cagle v. Burns & Roe, Inc., 106 Wash. 2d 911, 1 BNA IER CAS 785, 726 P.2d 434 (Wash. 1986)). This argument does not help her, though, because whether her claim should be dismissed does not depend on the relief she requests, but on the cause of action she asserts.
The purpose of Pennsylvania's Worker's Compensation program is to give workers a degree of certainty that they can recover for injuries arising in the course of employment, while at the same time, barring civil suits against the employer outside the compensation statute. 77 Pa. Cons. Stat. Ann. §§ 411, 481(a) (1992). The statute seems to clearly contemplate recovery by employees for physical injury only. The section that defines "injury" states, "the terms 'injury' and 'personal injury,' as used in this act, shall be construed to mean an injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury . . . ." Id. at § 411. This section refers to physical injuries, disabilities, and death, no fewer than five more times. Id.
At least one treatise on wrongful discharge has written, "actions for non-physical injury based on torts such as invasion of privacy, fraud, and defamation are not barred [by worker's compensation] because 'these torts would not come within the basic coverage formula.'" William J. Holloway & Michael J. Leech, Employment Termination: Rights & Remedies, 148 (1985) (citations omitted).
MCOB Defendants argue that Pierce's trespass claims are barred by Worker's Compensation, but only cite cases addressing claims of intentional infliction of emotional distress. Several cases in our court have held that emotional distress claims are barred by Worker's Compensation. See Yerger v. Landis Mfg. Sys., 1989 U.S. Dist. LEXIS 6800, No. 88-7694, 1989 Westlaw 66443 at *8 (E.D. Pa. June 16, 1989) ("Plaintiff's common law claim for emotional distress based on the allegations that defendants wrongfully discharged him to prevent further liability for his disability, however, is preempted by ERISA and the Pennsylvania Workman's Compensation Act") (emphasis added). We find that these cases do not help MCOB Defendants' arguments because emotional distress claims have a physical injury component. Restatement (Second) of Torts § 46 at 78 (1965); Williams v. Guzzardi, 875 F.2d 46, 50 (3d Cir. 1989) (sleeplessness, depression, or some other evidence that the plaintiff suffered "severe emotional distress") (emphasis added).
Neither side cites any cases holding that claims such as interference with contract or civil conspiracy, even when arising from the employment relation, are included within the scope of Worker's Compensation. After thorough research, this Court has failed to find a single case, with one possible exception, that barred claims even remotely similar to Pierce's claims under any state's Worker's Compensation statute.
The above noted possible exception is Rodgers. There, plaintiff was allegedly wrongfully discharged from his job, and sued his former employer for both intentional infliction of emotional distress and fraud. The Middle District of Pennsylvania held that these claims were barred by the exclusivity provisions of the Worker's Compensation laws. 803 F. Supp. at 1030. We find Rodgers inapplicable to this case for a number of reasons. First, it appears that the fraud alleged took place while plaintiff was still employed, therefore, it clearly arose in the course of his employment. Id. at 1025-26. Second, on the merits, the Court found that plaintiff had failed to adequately plead a cause of action for fraud, and so the alternative decision that the claim is also barred by Worker's Compensation is not as significant as it might be. Id. at 1031. Third, we are not bound by a decision of the Middle District of Pennsylvania.
We find that the apparent lack of any other case on this issue, in combination with the language of Pennsylvania's Worker's Compensation statute, make it evident that Pennsylvania's Worker's Compensation statute is limited to damages for physical injury. Pierce's claims for civil conspiracy and interference with contractual relations are not the types of claims that the Pennsylvania legislature apparently intended to pre-empt when it passed its Worker's Compensation law. Accordingly, we will look to see whether Pierce has adequately pleaded trespass claims against the MCOB Defendants.
1. Civil Conspiracy
First, Pierce brings a civil conspiracy claim against "the individuals named." Brief in Opp. at 1. Presumably, Defendants Algarin, Rogers, Luker, Kinloch, Dixon, Schell, Darling, Weisberg and Portner are the "individuals named" although this is not made clear in either the Amended Complaint or the Brief in Opposition.
Amended Complaint PP 35-36, 39, 42-47, 52. According to the Amended Complaint, the:
conspiracy existed and culminated in the overt act of January 1993 in removing Frances Peirce [sic] as Executive Director of the Opportunity Board of Montgomery County, Inc. for the sole purpose of oppression, harassment, intimidation, embarrassment, coercion, extortion of give up rights [sic], and otherwise inflict injury, and emotional distress upon plaintiff Frances Pierce, and to attempt to silence her, and deprive her from pursuing her right as an American citizen to freedom of speech and political association under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania.
Id. at P 49.
Pierce argues that this civil conspiracy claim may stand because she has adequately pleaded the elements of civil conspiracy under Pennsylvania law. Brief in Opp. at 6-7 (citing Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Denenberg v. American Family Corp., 566 F. Supp. 1242 (E.D. Pa. 1983)).
In Pennsylvania, a civil conspiracy can be pleaded when "'two or more persons combined or agreed with intent to do an unlawful act or to do a lawful act by unlawful means.'" Denenberg, 566 F. Supp. at 1253 (quoting Thompson, 488 Pa. at 211, 412 A.2d at 472). Here, Pierce has pleaded that nine individuals conspired with the intent of depriving her of certain rights and inflicting injury on her. MCOB Defendants do not challenge that Pierce has stated a cause of action for civil conspiracy, simply that it is pre-empted by Worker's Compensation. We find that Pierce's Amended Complaint adequately pleads the elements of civil conspiracy, and therefore, sufficiently states a cause of action for which relief can be granted.
2. Malicious Interference with Contractual Rights
Count Three also includes a claim for malicious interference with contractual relations against the individual defendants.
Pierce's Amended Complaint alleges that (1) there was a business relationship between her and the MCOB, (2) the individual defendants knew about the business relationship, (3) the individual defendants intended to disrupt the relationship, (4) the defendants used improper means of interference, and (5) she was injured by the interference. Amended Complaint PP 42-47, 50.
Pierce and Defendants agree on the elements necessary to state a claim for tortious interference with contractual relations. Defendants' Brief at 10; Brief in Opp. at 8-9; Pino v. Prudential Ins. Co., 689 F. Supp. 1358, 1362 (E.D. Pa. 1988) (citing Adler, Barish, Daniels, Levin v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 61 L. Ed. 2d 272, 99 S. Ct. 2817 (1979)); Restatement (Second) of Torts § 766 (1979). The claim requires that "one intentionally and improperly interferes with the performance of a contract . . . between another and a third person." Id. MCOB Defendants' motion to dismiss is based on the theory that Algarin, Rogers, Luker, Kinloch, Dixon, Schell and Portner were all directors of MCOB, and therefore not third persons for the purposes of interfering with Pierce's contract with MCOB. They cite no caselaw in support of this theory.
Pierce asserts that Portner had resigned from the Board in December, 1992, and so is a third person for the purposes of this claim. Brief in Opp. at 8. As to the other MCOB Defendants, Pierce apparently argues that they acted outside the scope of their offices in participating in a scheme to have her removed from her job, because she asserts that it is a question of fact whether their actions were "ultra vires, and therefore, not privileged." Id. She cites to 15 Pa. Cons. Stat. Ann. § 5713 to demonstrate the personal liability of directors of non-profit corporations. These allegations of material fact are, however, irrelevant to a Rule 12(b)(6) motion to dismiss. Moreover, whether MCOB Defendants would be personally liable begs the question of whether they are liable at all.
Several cases in Pennsylvania have held that when an agent or employee of a corporation allegedly improperly interferes with another employee's contract with the employer, no third person is involved. Vuksta v. Bethlehem Steel Corp., 540 F. Supp. 1276, 1282 (E.D. Pa. 1982), cert. denied, 707 F.2d 1405 (3d Cir. 1983); Wells v. Thomas, 569 F. Supp. 426, 435 (E.D. Pa. 1983). Those cases involved managerial employees; here, Directors of the company are involved, and the absence of a third person seems even more apparent.
These cases are in contrast to Hughes v. Technology Licensing Consultants, Inc., 815 F. Supp. 847 (W.D. Pa. 1992), where the plaintiff specifically pleaded that co-employee/defendants acted outside the scope of their authority when they dismissed plaintiff. In that situation, the Western District denied a motion to dismiss the claim on the basis that plaintiff had alleged actions by a third person. Id. at 855.
Here, despite what Pierce alleges in her Brief, her Amended Complaint does not plead that MCOB Defendants acted outside the scope of their employment or authority when they dismissed her from her position, and therefore, they were not third persons. Even making reasonable inferences from the allegations in the Amended Complaint does not help Pierce, because the Amended Complaint states the claim against each individual defendant by alleging an official vote to dismiss her and discusses each actor in the context of his or her title and position on the Board. Amended Complaint PP 42-47; Schrob, 948 F.2d at 1405; Markowitz, 906 F.2d at 103.
As far as Defendant Portner is concerned, Pierce specifically pleads that "during his absence from the Board he maintained effective control over the Opportunity Board." Amended Complaint P 48. Moreover, for all but two months of the alleged interference, Portner was President of the Board. Id. Taking her facts as true, Portner was not a third person to the contract either. We find that Pierce has not alleged that third persons interfered with her contract with MCOB, and therefore, she has not stated a claim upon which relief can be granted.
C. Federal Civil Rights Claims
1. 42 U.S.C. § 1983
Also in Count Three, Pierce alleges a violation of her civil rights under § 1983. Paragraph 52 alleges that:
Defendants Darling and Weisberg under the color of the laws by which federal money is distributed through their state agency and under the color of their offices, in the manner set forth above, acted to deprive Frances Pierce of rights secured by the Constitution of the United States, contrary to 42 USC § 1983, [sic] and the other named defendants acted in concert with them and with full knowledge of the motivations and intentions of defendants Darling and Weisberg.
MCOB Defendants seek to dismiss this claim on the ground that Pierce does not allege that the MCOB Defendants acted under color of state law. This, they assert, is fatal to her cause of action. In response, Pierce alleges that private parties that conspire with state actors act under color of state law for the purpose of § 1983. She cites Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) and Dennis v. Sparks, 449 U.S. 24, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980) to support her argument. These cases clearly hold that a private person acts under color of state law when the private person is a "'willful participant in joint activity with the State or its agents.'" Adickes, 398 U.S. at 152 (quoting United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966)); Dennis, 449 U.S. at 186.
Pierce's Amended Complaint asserts that the MCOB Defendants "acted in concert with [the State Defendants] and with full knowledge" of their intentions. Amended Complaint at P 52. This is enough to state a claim against the MCOB Defendants for § 1983 liability.
We now are faced with the question of what, exactly, the basis of Pierce's § 1983 claim is. At no point in her responsive brief does Pierce detail which of her rights were allegedly violated by any Defendants. All Defendants have theorized several possibilities, all of which, they assert, are meritless. At this point, we will not guess which possible claims Pierce intends to pursue. As was seen in the state law claims against MCOB Defendants, what Pierce theoretically pleaded in the Amended Complaint may be much more expansive than what she actually intended to claim. Although both State and MCOB Defendants identified several possible claims in their Motions to Dismiss, and laid out succinct arguments why those claims should be dismissed, Pierce did not respond in any way to those arguments. In the two pages of her brief devoted to her § 1983 claim, she simply reiterates that she has been deprived of her "rights".
Because Pierce has theoretically pleaded a violation of her rights, but because there is no telling what those rights are, we GRANT Pierce leave to AMEND her complaint to clarify exactly which of her rights were allegedly violated by the MCOB Defendants in regard to her § 1983 claim against them. We therefore DENY MCOB Defendants' Motion to Dismiss, but without Prejudice.
In addition, State Defendants seek to dismiss the § 1983 claim against them on the ground that it exceeds the applicable statute of limitations. State Defendants argue that it "is beyond dispute that a two-year statute of limitations applies to actions brought under 42 U.S.C. § 1983." State Brief at 12 (citing Fitzgerald v. Larson, 769 F.2d 160, 162 (3d Cir. 1985)). They assert that original service of the Amended Complaint on them was on November 30, 1994, therefore, they are only liable for alleged § 1983 violations that occurred after November 30, 1992. The only date specified in the Amended Complaint after November that relates to them is December 16, 1992. Allegedly, on December 16, 1992:
Defendants Darling and Weisberg appeared at the offices of the Opportunity Board and stated they were there to discuss the closure and adverse action to be taken toward the Board. No reasons were stated. These defendants refused to answer questions, got up and left. The entire meeting took 15 minutes. 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.
Amended Complaint P 41.
State Defendants argue that this paragraph does not describe a § 1983 violation, and therefore, there is no § 1983 claim against them. They argue that Pierce's claim against them is that they conspired, before December 16, 1992, with the MCOB Defendants to remove Pierce from her job. However, they argue that by December 16, 1992, the Department of Community Services had already resolved to terminate MCOB's funding based on the fact that MCOB's Board was improperly constituted under Federal requirements because it had not been democratically elected from the community. This reason for terminating MCOB's funding had nothing to do with Pierce or her political affiliation. Accordingly, State Defendants argue, any action they took at the December 16, 1994 meeting was unconnected with any alleged conspiracy to deprive Pierce of her civil rights. Therefore, they argue "plaintiff cannot, pursuant to Rule 11, specifically plead that anything movant said or did at the December 16, 1992 meeting was in furtherance of the alleged conspiracy." State Brief at 13. As a result, because only the December 16, 1992 meeting is allegedly within the statute of limitations, and because nothing unlawful was done there, they assert that Pierce has no timely claim against them for § 1983 violations.
Pierce's only response to this argument is found in the middle of her argument in general support of her § 1983 claim. She writes, "the facts underlying the claim were here specifically pleaded, from the preconspiracy attempts by the state officials in 199-1991, [sic] to their actions within the statute of limitations in December 1992 resulting in Frances Pierce's wrongful dismissal, etc. in January 1993." Brief in Opp. at 12. She cites no cases regarding the statute of limitations defense that State Defendants have raised.
Neither party briefed this issue for the Court, but from our own research, it appears that Pierce's claim against the State Defendants for conspiratory actions under § 1983 is time-barred. In several cases involving continuing discrimination, federal courts have held that an action is not time-barred if "subsequent identifiable acts of discrimination occur within the critical time period." Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir. 1982) (emphasis added) (Title VII). In Bougher v. University of Pittsburgh, 882 F.2d 74 (3d Cir. 1989), plaintiff brought a § 1983 suit against her former professor for sexual harassment. She alleged that he had coerced a sexual relationship with her for years, however, that relationship ended more than two years before her complaint was served on defendant. The complaint did, however, allege that defendant had "glared at Plaintiff in a threatening manner" within the two-year statute of limitations. Id. at 78. Plaintiff alleged that these menacing looks were a continuation of the sexual harassment she had suffered earlier. The Third Circuit held that plaintiff failed to state a cause of action because the actions that occurred within the statue of limitations, even if unlawful, "did not amount to a deprivation of constitutional or federally protected rights within the contemplation of section 1983." Id. at 79. Accordingly, the Court affirmed the decision to dismiss the case.
In contrast, the Middle District of Pennsylvania did not dismiss a civil rights case where the plaintiff alleged that he was terminated from his job on account of his race. Rogers v. Mount Union Borough, 816 F. Supp. 308 (M.D. Pa. 1993). The Court held that even though the acts leading up to the termination occurred before the statute of limitations, that the discharge was the core of the complaint, and he was discharged within the statute of limitations. Id. at 317.
Applying the holding of Rogers to this case, the "core" of the allegations against State Defendants is the conspiracy allegation. The conspiracy, with one exception, apparently took place outside the statute of limitations. The one exception is the meeting in December, 1992. At the time of the meeting, state authorities had decided to terminate MCOB's funding because the MCOB Board had not been democratically elected, as was required. According to the Amended Complaint, the State Defendants met with the MCOB Board to inform them of "adverse action" against MCOB, apparently, the termination of funding. Even if State Defendants had ulterior motives, simply notifying the Board of the decision to terminate funding was not an unlawful act, and does not rise to the level of a constitutional deprivation. See Bougher, 882 F.2d at 78. Because the only act of State Defendants within the statute of limitations appears to be a lawful act, it is not part of a continuing deprivation that would bring the previous, allegedly unlawful acts within the statute. Held, 684 F.2d at 340. Accordingly, the federal civil rights claims under § 1983 against the State Defendants are barred by the statute of limitations.
2. 42 U.S.C. § 1985(c)
Finally, Count Three alleges a cause of action under § 1985 against all defendants. Paragraph 56 of The Amended Complaint asserts:
The named defendants conspired for the purpose of depriving, either directly or indirectly, Frances Pierce of the equal protection of the laws, or of equal privileges and immunities under the laws, to injure Frances Pierce and her property on account of her support and advocacy of candidates of the Republican Party for voting for electors for President or Vice-President of the United States, or for members of the Congress of the United States, all contrary to 42 USC § 1985 (3), [sic] and for the reasons as hereinbefore set out.
§ 1985(3) prohibits two or more persons from conspiring:
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 . . . to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy.