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January 19, 1996


The opinion of the court was delivered by: RAMBO

 Before the court is Defendants' motion to dismiss. The motion has been briefed by both parties and is ripe for disposition.


 Plaintiff in this action is Michael P. Labalokie, and Defendants are Capital Area Intermediate Unit ("CAIU"), John Nagle and Edward Frye. For purposes of this motion, the court accepts as true the following factual averments in Plaintiff's Complaint. CAIU is a unit of the state public education system which provides a variety of services to member districts, including the transportation of special education students, which is partially undertaken by private bus or van operators under contract with CAIU. During all times relevant to this action Defendant Nagle served as Executive Director of CAIU and Defendant Frye was an agent or officer of CAIU. In September 1993, Nagle retired and Frye assumed the post of Executive Director, which he continues to hold presently. Plaintiff worked for the CAIU as an independent bus contractor from 1987 to 1993.

 At a CAIU board meeting in April of 1993, Plaintiff openly accused Nagle of scapegoating a former CAIU officer, Don Boyanowski, for mismanagement of the Unit. Plaintiff further charged that if any mismanagement had occurred the responsibility lay with Nagle himself. As a consequence of this conduct, in June of 1993, Nagle informed Plaintiff by letter that he would no longer be permitted to contract with CAIU.

 Count I of Plaintiff's Complaint asserts a civil rights claim under 42 U.S.C. § 1983, and Count II is a pendant state claim of tortious interference with contract. Defendants move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).


 I. Motion To Dismiss Standard

 Under Rule 12(b)(6), "a Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must " 'take all well pleaded allegations as true, construe the Complaint in the light most favorable to the plaintiff,' and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985)), cert. denied, 489 U.S. 1065 (1989). "Because 12(b)(6) results in a determination on the merits at an early stage of the case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

 II. Section 1983 Claim

 In order to state a claim under § 1983, a plaintiff must allege that a defendant deprived her of a federal constitutional or statutory right while acting under color of state law. Carter v. City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). Plaintiff's § 1983 claim is based upon an alleged conspiracy to violate his rights to freedom of expression and association under the First Amendment, and to due process of law under the Fourteenth Amendment, as well as actual violations of those rights.

 A. First Amendment Claim

 There is a considerable body of law on the question of when the termination of a public employee on the basis of expression runs afoul of the First Amendment. However, before discussing those standards the court must determine whether Plaintiff, who worked with CAIU as an independent contractor rather than an employee, is entitled to their protection. Defendants argue that under Horn v. Kean, 796 F.2d 668 (3d Cir. 1986), he is not.

 The Horn decision can only be understood in its proper context against the backdrop of the Supreme Court's decision in Lefkowitz v. Turley, 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973). The question presented in Lefkowitz was whether, in light of the prohibition against requiring state employees to waive their Fifth Amendment protection against self-incrimination as a condition of public employment *fn1" , independent contractors could be compelled to do so. In favor of permitting such a waiver in the case of contractors, the state argued that the economic consequences of exclusion from state contracting are less severe than those suffered by a terminated public employee. Id. at 83. The Supreme Court rejected this reasoning, as follows:

We fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the state, and a threat of loss of contracts to a contractor. . . . A significant infringement of constitutional rights cannot be justified ...

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