The opinion of the court was delivered by: Joyner, J.
This civil action has been brought before the Court again by
the Commonwealth of Pennsylvania, Department of Transportation
("PennDot") and its three employees, Stephen Madrak, Michael
Kistler and Rebecca Bickley, all of whom Plaintiff sued in their
individual and official capacities. Specifically, PennDot,
Madrak, Kistler and Bickley seek to dismiss the Amended Complaint
against them with prejudice for failure to state a claim upon
which relief may be granted and for want of sufficient subject
matter jurisdiction. For the reasons set forth below, PennDot's
motion shall be granted in its entirety and the motion of the
individual defendants granted in part.
According to the Amended Complaint, despite these
representations, MSF did not offer Plaintiff the position of State
Coordinator for the Motorcycle Safety Program ostensibly because
of an interview which he gave to a publication known as the
Citizen's Voice on August 13, 1998 and because he informed
Defendants that MSF's Proposal Project Director, Roberta Carlson,
the former State Coordinator for the Pennsylvania Motorcycle
Safety Program when it was being overseen by Millersville
University, was inappropriately using insider information gathered
while she was a Millersville employee for the benefit of MSF.
Plaintiff thereafter instituted this suit seeking damages for
breach of contract, invasion of privacy, defamation, tortious
interference with third party and prospective contractual
relations, punitive damages and for violations of his civil rights
under 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law,
43 P. S. § 1421, et. seq. Through these motions, PennDot, Madrak,
Kistler and Bickley seek to dismiss the Amended Complaint against
them in its entirety, with prejudice.
Standards Governing Motions to Dismiss
The rules governing the pleading of cases in the district
courts are clear. Under Fed.R.Civ.P. 8(a),
"A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party
claim, shall contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends, unless
the court already has jurisdiction and the claim needs no new
grounds of jurisdiction to support it, (2) a short and plain
statement of the claim showing that the pleader is entitled
to relief, and (3) a demand for judgment for the relief the
pleader seeks. Relief in the alternative or of several
different types may be demanded.
It is equally clear that the issue of the sufficiency of a
pleading may be raised by the filing of a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant
to Fed.R.Civ.P. 12(b)(6) or through a motion for a more definite
statement under Rule 12(e). In resolving a Rule 12(b)(6) motion,
the court primarily considers the allegations 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 (3rd Cir. 1990). In
so doing, the court must accept as true the facts alleged in the
complaint, together with all reasonable inferences that can be
drawn therefrom and construe them in the light most favorable to
the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103
(3rd Cir. 1990); Hough/Lowe Associates, Inc. v. CLX Realty Co.,
760 F. Supp. 1141 (E.D.Pa. 1991). The court's inquiry is directed
to whether the allegations constitute a statement of a claim under
Rule 8(a) and whether the plaintiff has a right to any relief
based upon the facts pled. Dismissal under Rule 12(b)(6) for
failure to state a claim is therefore limited to those instances
where it is certain that no relief could be granted under any set
of facts that could be proved. Ransom v. Marazzo, 848 F.2d 398,
401 (3rd Cir. 1988); Angelastro v. Prudential-Bache
Securities,Inc., 764 F.2d 939, 944 (3rd Cir. 1985), cert. denied,
470 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985).
Subject matter jurisdiction, on the other hand, may be
challenged by filing a motion pursuant to Fed.R.Civ.P. 12(b)(1). A
district court can grant a Rule 12(b)(1) motion based on the legal
insufficiency of the claim but dismissal is proper only when the
claim appears to be immaterial and made solely for the purpose of
obtaining jurisdiction or is wholly insubstantial or frivolous.
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09
(3rd Cir. 1991). See Also: Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d 73
(1974). Unlike a motion to dismiss for failure to state a claim
under Rule 12(b)(6) where the plaintiff is entitled to have all
reasonable inferences drawn in his favor, when jurisdiction is
challenged under Rule 12(b)(1), the burden is on the plaintiff to
prove that jurisdiction exists and the courts are not limited in
their review to the allegations of the complaint. Doe v. William
Shapiro, Esquire, P.C., 852 F. Supp. 1246, 1249 (E.D.Pa. 1994).
Similarly, any evidence may be reviewed and any factual
disputes resolved regarding the allegations giving rise to
jurisdiction, since it is for the Court to resolve all factual
disputes involving the existence of jurisdiction. Sitkoff v. BMW
of North America, Inc., 846 F. Supp. 380, 383 (E.D.Pa. 1994). In
contrast, if the attack to jurisdiction is facial, that is, to the
allegations of jurisdiction stated in the complaint, the factual
allegations of the complaint are presumed to be true and the
complaint is reviewed to ensure that each element necessary for
jurisdiction is present. Id. If jurisdiction is based on a
federal question, the pleader claiming federal jurisdiction must
show that the federal claim is not frivolous. Radeschi v.
Commonwealth of Pennsylvania, 846 F. Supp. 416, 419 (W.D.Pa. 1993),
citing Bartholomew v. Librandi, 737 F. Supp. 22 (E.D.Pa.), aff'd,
919 F.2d 133 (3rd Cir. 1990). Only if it appears to a certainty
that the pleader will not be able to assert a colorable claim of
subject matter jurisdiction may the complaint be dismissed.
Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172
(E.D.Pa. 1988). See Also: Mortensen v. First Federal Savings and
Loan Ass'n., 549 F.2d 884, 891 (3rd Cir. 1977).
A. Eleventh Amendment Immunity.
Defendants first argue that this Court lacks subject matter
jurisdiction over Plaintiff's claims against them by virtue of the
Eleventh Amendment to the U.S. Constitution.*fn1 That
Amendment states that:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity commenced or
prosecuted against any one of the United States by Citizens
of another State, ...