United States District Court, Eastern District of Pennsylvania
October 29, 1999
MOTORCYCLE SAFETY FOUNDATION INC., ET. AL.
The opinion of the court was delivered by: Joyner, J.
MEMORANDUM AND ORDER
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.
History of the Case
As previously noted in our Memorandum and Order of October 8,
1999 disposing of the motion to dismiss of defendant Motorcycle
Safety Foundation, Plaintiff's claims emanate from a written
contract between PennDot and the Motorcycle
("MSF"), a private corporation. Under that contract, MSF was to
take over the implementation and oversight of a Motorcycle Safety
Program for PennDot from Millersville University. Plaintiff
Halstead contends that as part of the bid which MSF submitted to
obtain the PennDot contract, his name, personal qualifications and
resume were used in that MSF represented that Plaintiff's
qualifications would be the minimum qualification for the position
of State Coordinator and that the position of State Coordinator
would be offered to him first. The position would only be offered
to another candidate if the plaintiff refused to accept the job
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, or by Citizens or Subjects of any Foreign
The Amendment has been interpreted to protect an "unconsenting
state from suit in federal court by its own citizens as well as
those of another state. Blanciak, 77 F.3d at 694, quoting
Pennhurst State School v. Halderman, 465 U.S. 89, 100, 104 S.Ct.
900, 907-908, 79 L.Ed.2d 67 (1984). The burden of proving
entitlement to Eleventh Amendment immunity falls upon the
party*fn2 asserting it. Christy v. Pennsylvania Turnpike
Commission, 54 F.3d 1140, 1144 (3rd Cir. 1995).
There are, however, certain well-established exceptions to
the reach of the Eleventh Amendment. Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171
(1985). If a state waives its immunity and consents to suit in
federal court, the Eleventh Amendment does not bar the action.
Blanciak, 77 F.3d at 694, citing, Atascadero, 473 U.S. at 234,
105 S.Ct. at 3142 and Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878,
883, 27 L.Ed. 780 (1883). Alternatively, in appropriate
circumstances and with respect to the rights guaranteed under the
Fourteenth Amendment, Congress has the power to abrogate a state's
Eleventh Amendment immunity. Pennhurst, 465 U.S. at 99, 104 S.Ct.
at 907; Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347,
1360-61, 39 L.Ed.2d 662 (1974). For either of these exceptions to
apply, however, there must be an unequivocal expression of either
a state's consent or of the congressional intent to overturn the
constitutionally guaranteed immunity of the several States.
Pennhurst, 465 U.S. at 100, 104 S.Ct. at 907, citing, Edelman,
415 U.S. at 673, 94 S.Ct. at 1360-61 and Fitzgerald v. Bitzer,
427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
In traditionally sensitive areas, such as legislation
affecting the federal balance, the requirement of clear statement
assures that the legislature has in fact faced, and intended to
bring into issue, the critical matters involved in the judicial
decision. Blanciak, 77 F.3d at 694, citing United States v. Bass,
404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).
Hence, a general authorization for suit in federal court is not
the kind of unequivocal statutory language sufficient to abrogate
the Eleventh Amendment. Seminole Tribe of Florida v. Florida,
517 U.S. 44, 56, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996).
In this case, plaintiff invokes 42 U.S.C. § 1983, which
provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress. . .
In analyzing this statute in an effort to determine whether a
cause of action under it may lie against a State, the Supreme
Court has repeatedly concluded that while municipal corporations
and similar governmental entities are "persons" subject to suit, a
State is not a "person" within the meaning of § 1983. See: Howlett
v. Rose, 496 U.S. 356, 377, 110 S.Ct. 2430, 2443, 110 L.Ed.2d 332
(1990); Will v. Michigan Department of State Police, 491 U.S. 58,
65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); Quern v.
Jordan, 440 U.S. 332, 343-344, 99 S.Ct. 1139, 1146-1147, 59
L.Ed.2d 358 (1979); Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
There thus being no Congressional abrogation of the States'
Eleventh Amendment immunity in Section 1983, we look next to
Pennsylvania state law to see if the Commonwealth*fn3 has
voluntarily waived this immunity. In so doing, we find that
42 Pa.C.S.A. § 8521 answers this question in the negative. Specifically,
that Statute states:
§ 8521. Sovereign immunity generally
(a) General rule. — Except as otherwise provided in this
subchapter, no provision of this title shall constitute a
waiver of sovereign immunity for the purpose of 1 Pa.C.S.A. § 2310
(relating to sovereign immunity reaffirmed; specific
waiver) or otherwise.
(b) Federal courts. — Nothing contained in this subchapter
shall be construed to waive the immunity of the Commonwealth
from suit in Federal courts guaranteed by the Eleventh
Amendment to the Constitution of the United States.
As this statute makes clear, Pennsylvania has explicitly
reserved its right to immunity from suit in federal court and we
therefore conclude that PennDot and its three employees acting in
their official capacities are immune from the plaintiff's § 1983
claims. See: Fitzpatrick v. Pennsylvania Department of
Transportation, 40 F. Supp.2d 631, 634 (E.D.Pa. 1999). Count V of
the Amended Complaint shall be dismissed with prejudice.
B. Plaintiff's State Law Claims Against PennDot.
There is a distinction between sovereign immunity under the
Eleventh Amendment and sovereign immunity with respect to state
law claims. The Commonwealth of Pennsylvania has enacted a
statute specifically preserving its sovereign immunity subject to
certain statutorily enumerated exceptions. Indeed, under
1 Pa.C.S.A. § 2310,
. .it is hereby declared to be the intent of the General
Assembly that the Commonwealth, and its officials and
employees acting within the scope of their duties, shall
continue to enjoy sovereign immunity and official immunity
and remain immune from suit except as the General Assembly
shall specifically waive the immunity. When the General
Assembly specifically waives sovereign immunity, a claim
against the Commonwealth and its officials and employees
shall be brought only in such manner and in such courts and
in such cases as directed by the provisions of Title 42
(relating to judiciary and judicial procedure) or 62
(relating to procurement) unless otherwise specifically
authorized by statute.
As regards Commonwealth parties such as PennDot*fn4
General Assembly has specifically waived its immunity from suit
with respect to actions in nine distinct categories "for damages
arising out of a negligent act where the damages would be
recoverable under the common law or a statute creating a cause of
action if the injury were caused by a person having available the
defense of sovereign immunity." 42 Pa.C.S.A. § 8522(a).
Specifically, the categories for which immunity has been waived
are: (1) vehicle liability; (2) medical-professional liability;
(3) care, custody or control of personal property; (4)
Commonwealth real estate, highways and sidewalks; (5) potholes and
other dangerous conditions; (6) care, custody or control of
animals; (7) liquor store sales; (8) National Guard activities;
and (9) toxoids and vaccines. 42 Pa.C.S.A. § 8522(b)(1)-(9).
Plaintiff here is advancing claims under state law against the
Department of Transportation for defamation, tortious interference
with third party and prospective contractual relations and for
violation of the Pennsylvania Whistleblower Law, 43 P. S. § 1421,
et. seq. None of these claims, of course, involve negligence or
fall within the menu of claims for which sovereign immunity has
been waived under Section 8522(b) and we therefore shall dismiss
Counts V and VI with prejudice. We reach the same conclusion as
to Plaintiff's Whistleblower Law claim, although for a slightly
It is clear that the Whistleblower Law applies only to public
employees who are discharged or otherwise discriminated or
retaliated against by governmental entities. See: Clark v. Modern
Group, Ltd., 9 F.3d 321, 326, n. 4 (3rd Cir. 1993); Holewinski v.
Children's Hospital of Pittsburgh, 437 Pa. Super. 174,
649 A.2d 712, 715 (1994); Krajsa v. Keypunch, Inc., 424 Pa. Super. 230,
622 A.2d 355, 359-360 (1993). Specifically, Section 1423 of the
Pennsylvania Whistleblower Law provides:
(a) Persons not to be discharged.- No employer may discharge,
threaten or otherwise discriminate or retaliate against an
employee regarding the employee's compensation, terms,
conditions, location or privileges of employment because the
employee or a person acting on behalf of the employee makes a
good faith report or is about to report, verbally or in
writing, to the employer or appropriate authority an instance
of wrongdoing or waste.
(b) Discrimination prohibited.- No employer may discharge,
threaten or otherwise discriminate or retaliate against an
employee regarding the employee's compensation, terms,
conditions, location or privileges of employment because the
employee is requested by an appropriate authority to
participate in an investigation, hearing or inquiry held by
an appropriate authority or in a court action.
Under the Definitions portion of the statute, 43 P. S. § 1422,
"employee" is defined as "[a] person who performs a service for
wages or other remuneration under a contract of hire, written or
oral, express or implied, for a public body." "Employer," in
turn, is "[a] person supervising one or more employees, including
the employee in question; a superior of that supervisor; or an
agent of a public body." A "public body" is defined to include
all of the following:
(1) A state officer, agency, department, division, bureau,
board, commission, council, authority or other body in the
executive branch of State government.
(2) A county, city, township, regional governing body,
council, school district, special district or municipal
corporation, or a board, department, commission, council or
(3) Any other body which is created by Commonwealth or
political subdivision authority or which is funded in any
amount by or through Commonwealth or political subdivision
authority or a member or employee of that body.
The language "funded in any amount by or through Commonwealth
or political subdivision authority or a member or employee of that
body" has been held to have been intended by the legislature to be
limited to monies which were appropriated by the legislature for
the purpose of aiding "public bodies" in pursuit of their public
goals and was obviously not intended to make an individual or
corporation a "public body" solely on the basis that monies were
received by it from the state as reimbursement for services
rendered. Cohen v. Salick Health Care, Inc., 772 F. Supp. 1521,
1527 (E.D.Pa. 1991); Riggio v. Burns, ___ Pa.Super. ___,
711 A.2d 497, (1998), appeal granted, ___ Pa. ___, ___ A.2d ___,
1999 WL 296367 (No. 177 E.D. Alloc. Dkt. 1998). Thus, it is clear that
the Pennsylvania legislature effectively abrogated the Commonwealth's
sovereign immunity when it enacted the Whistleblower Law and
PennDot is therefore not immune from Whistleblower Act claims.
Nevertheless, we find the plaintiff's Amended Complaint
insufficient to state a Whistleblower cause of action against the
Department of Transportation given Mr. Halstead's failure to
allege that he was ever an employee of either MSF or PennDot.
Rather, in Count XI of the Amended Complaint, Mr. Halstead
contends that he was an employee of the Pennsylvania Motorcycle
Safety Program then being run by Millersville University. In the
absence of an employment relationship, no cause of action can lie
here as between the plaintiff and the Department of
Transportation. Accordingly, the Defendant's motion to dismiss
shall be granted with respect to Count XI as well.
Plaintiff's final claim against PennDot is lodged in Count
XII and is for punitive damages. In Pennsylvania, punitive
damages are an element of damages arising out of an initial cause
of action for compensatory damages. Kirkbride v. Lisbon
Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 802 (1989), citing
Hilbert v. Roth, 395 Pa. 270, 149 A.2d 643 (1959). Hence, if no
underlying cause of action exists, there is no independent action
for a claim for punitive damages. Id. Moreover, under 42 Pa.C.S.A. §
8528(c), damages from Commonwealth entities are recoverable only
for past and future loss of earnings and earning capacity, pain
and suffering, medical and dental expenses, loss of consortium and
property losses. In view of this limitation and our determination
that all of the plaintiff's compensatory damages claims against
PennDot are properly dismissed, his claim for punitives must fall
as well. See Also: Feingold v. Southeastern Pennsylvania
Transportation Authority, 339 Pa. Super. 15, 488 A.2d 284, aff'd,
512 Pa. 567, 517 A.2d 1270 (1985). Count XII is likewise dismissed
with respect to the Department of Transportation.
C. Plaintiff's Claims Against Stephen Madrak, Rebecca
Bickley and Michael Kistler.
The Eleventh Amendment does not bar § 1983 personal capacity
suits against state officials in federal court. Hafer v. Melo,
502 U.S. at 22, 112 S.Ct. at 360. We therefore next consider
whether Plaintiff's claims under Section 1983 against PennDot
employees Madrak, Kistler and Bickley in their personal capacities
may go forward.
The courts have repeatedly held that the purpose of § 1983 is
to provide a civil cause of action to protect persons against the
misuse of power possessed by virtue of state law and made possible
because the defendant was cloaked with the authority of the state.
Del Signore v. McKeesport, 680 F. Supp. 200, 203 (W.D.Pa. 1988).
See Also: West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255,
101 L.Ed.2d 40 (1988). Section 1983 does not create a cause of
action in and of itself; rather it provides redress for certain
violations of rights arising under the federal constitution or
laws of the United States which are caused by persons acting under
color of state law. Lee v. Gateway Institute & Clinic, Inc.,
732 F. Supp. 572, 575 (W.D.Pa. 1989), citing Baker v. McCollan,
443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).
To make out a claim under § 1983, a plaintiff must demonstrate
that the conduct of which he is complaining has been committed
under color of state or territorial law and that it operated to
deny him a right or rights secured by the Constitution or laws of
the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct.
1920, 1923, 64 L.Ed.2d 572 (1980); Abdul-Akbar v. Watson,
901 F.2d 329, 332 (3rd Cir. 1990), cert. denied, 498 U.S. 806, 111 S.Ct.
237, 112 L.Ed.2d 196 (1990). Naturally, the plaintiff must also
show that it was the defendant who subjected him to this
deprivation of his rights or caused him to be subjected to the
deprivation. Martinez v. California, 444 U.S. 277, 100 S.Ct. 553,
62 L.Ed.2d 481 (1980); Signore, supra, 680 F. Supp. at 203. See
Also: Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 604,
46 L.Ed.2d 561 (1976); Duchesne v. Sugarman, 566 F.2d 817, 831
(2nd Cir. 1977). State officials, sued in their individual
capacities are "persons" within the meaning of § 1983 and are not
absolutely immune from personal liability thereunder solely by
virtue of the "official" nature of their acts. Hafer v. Melo, 502
U.S. at 31, 112 S.Ct. at 365.
Although a § 1983 complaint is not held to a heightened
pleading standard, to withstand a motion to dismiss it must still
satisfy the requirements of Fed.R.Civ.P. 8(a) of "a short and
plain statement of the claim that will give the defendant fair
notice of what the plaintiff's claim is and the grounds upon which
it rests." Leatherman v. Tarrant County Narcotics Unit,
507 U.S. 163, 168, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993); Frederick
v. Southeastern Pennsylvania Transportation Authority, 892 F. Supp. 122,
125 (E.D.Pa. 1995). The complaint should therefore state
facts such as the time and place of the deprivation and the
persons responsible so as to both show the elements of the cause
of action and to provide defendants with adequate notice to frame
an answer. Youse v. Carlucci, 867 F. Supp. 317, 319 (E.D.Pa.
1994), citing Frazier v. SEPTA, 785 F.2d 65, 67 (3rd Cir. 1986)
and Rode v. Dellarciprete, 845 F.2d 1195, 1207-1208 (3rd Cir.
1988). See Also: Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct.
1584, 1596-97, 140 L.Ed.2d 759 (1998); Agresta v. Goode,
797 F. Supp. 399 (E.D.Pa. 1992).
Again, the plaintiff here has invoked § 1983 as a remedy for
what he alleges was retaliation for his exercising his First
Amendment right to freedom of speech by giving an interview which
was reported in an article in the Citizen's Voice entitled
"Officials Fighting to Keep Motorcycle Safety Program in State."
It is now clear that under Supreme Court precedent, public
employees are afforded some protection against adverse employment
actions based on their expressive activity but only when two
conditions are satisfied. Azzaro v. County of Allegheny,
110 F.3d 968, 976 (3rd Cir. 1997), citing, Connick v. Myers, 461 U.S. 138,
143-44, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). See Also:
Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100
S.Ct. 1297, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347,
96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). First, the employee's
conduct must address "a matter of public concern" which is to be
determined by the "content, form, and context of a given
statement, as revealed by the whole record." Id., citing Connick,
461 U.S. at 147-48, 103 S.Ct. at 1690. Second, the value of that
expression must outweigh the government's interest in the
effective and efficient fulfillment of its responsibilities to the
public. A discharged public employee is entitled to no redress if
her expression is not related to a matter of public concern or,
even if it is so related, its value is outweighed by the value of
permitting the government to take action promoting efficiency and
Whether speech touches on a matter of public concern is a
legal question to be determined by the court, not the finder of
fact. Fogarty v. Boles, 938 F. Supp. 292, 298 (E.D.Pa. 1996). An
employee's speech addresses a matter of public concern when it can
be "fairly considered as relating to any matter of political,
social, or other concern to the community. Id., quoting Pro v.
Donatucci, 81 F.3d 1283, 1288 (3rd Cir. 1996) and Watters v. City
of Philadelphia, 55 F.3d 886, 892 (3rd Cir. 1995). These
protections have since been extended to instances where government
retaliates against a contractor, or a regular provider of services
for the exercise of its rights of political association or freedom
of speech. O'Hare Truck Service, Inc. v. City of Northlake,
518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Board of County
Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d
843 (1996). Where, however, there is no such ongoing commercial
relationship, there is no First Amendment protection and thus in
the absence of such a relationship, a cause of action is not
recognized for failure to award a contract in retaliation for
exercise of one's First Amendment rights. McClintock v.
Eichelberger, 169 F.3d 812, 817 (3rd Cir. 1999).
In applying these principles to this case, the gravamen of
Plaintiff's § 1983 claim against the individual PennDot defendants
is contained in Count VII at Paragraph 61 of the Amended
Upon information and belief, the decision of defendant MSF
not to hire Plaintiff was based upon the decisions, requests
or actions of Madrak, Kistler and/or Bickley as a result of
Plaintiff exercising his First Amendment right to freedom of
speech in an interview he gave which was reported in the
press in the Citizen's Voice on August 13, 1998 entitled
"Officials Fighting to Keep Motorcycle Safety Program in
As a threshold matter, it is impossible to determine from the
Amended Complaint which of these three defendants took which
action or how their decisions, requests or actions influenced MSF.
We thus find that the amended complaint falls short of giving the
defendant "fair notice of what the plaintiff's claim is and the
grounds upon which it rests."
Additionally and as has previously been discussed, Mr.
Halstead was never an employee of PennDot or MSF and there are no
facts which would suggest that MSF had a prior or ongoing
commercial or independent contractor relationship with PennDot.
Indeed, Plaintiff does not complain that he was not awarded the
PennDot contract but rather his complaint is that he was not
offered a job by a prospective employer. Thus, even assuming that
the matters which Plaintiff discussed with the Citizen's Voice
reporter were matters of public interest, we find that he has
failed to plead a § 1983 cause of action against the individual
defendants for violations of his First Amendment rights to free
speech and freedom of expression. Count VII is therefore
dismissed in its entirety.
We do, however, find that Plaintiff's claims against the
individual defendants for defamation and tortious interference
with contractual relations have been pled sufficiently to permit
them to proceed further. To be sure, sovereign immunity extends
only to Commonwealth employees acting within the scope of their
duties. Fitzpatrick v. Pennsylvania Department of Transportation,
supra, 40 F. Supp.2d at 636; 1 Pa.C.S.A. § 2310; 42 Pa.C.S.A. § 8501.
Inasmuch as Plaintiff has alleged that Madrak, Kistler and Bickley
were acting both in their individual and their official capacities
and we cannot make a conclusive determination at this time as to
whether anything that any of these three defendants may have said
or did was defamatory or in interference with Plaintiff's
relationship with MSF, nor can we determine the capacity in which
these defendants may have been acting, we shall give the parties
the opportunity to take discovery on these claims. If
appropriate, of course, these arguments may be revisited on
For all of the reasons outlined above, we shall grant
PennDot's motion to dismiss in its entirety and grant in
part*fn5 the motion of Defendants Madrak, Kistler and Bickley
in accordance with the attached order.
AND NOW, this ___ day of October, 1999, upon
consideration of the Motions of the Commonwealth of Pennsylvania,
Department of Transportation and Stephen Madrak, Michael Kistler
and Rebecca Bickley to Dismiss the Plaintiff's Amended Complaint,
and Plaintiff's Responses thereto, it is hereby ORDERED that the
Motion of the Commonwealth of Pennsylvania, Department of
Transportation is GRANTED and all claims against the Department of
Transportation are DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Motion of Defendants Madrak,
Kistler and Bickley is GRANTED IN PART and DENIED IN PART and
Counts VII and XII are DISMISSED in their entirety from the
Amended Complaint with prejudice.