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JAKOMAS v. MCFALLS
October 31, 2002
JOHN J. JAKOMAS, PLAINTIFF,
THE HONORABLE H. PATRICK MCFALLS, JR., AND THE COUNTY OF ALLEGHENY, PENNSYLVANIA, DEFENDANTS. JAMES JOSEPH AND BARBARA JOSEPH, PLAINTIFFS, V. THE HONORABLE H. PATRICK MCFALLS, JR., AND THE COUNTY OF ALLEGHENY, PENNSYLVANIA, DEFENDANTS.
The opinion of the court was delivered by: Maurice B. Cohill, Senior United States District Judge
Plaintiffs in this action are the former tipstaff, law clerk, and
secretary for Judge Patrick H. McFalls, Jr., of the Court of Common Pleas
of Allegheny County, Pennsylvania. Judge McFalls discharged them in
mid-November of 2001. In two separate but related lawsuits, they have
filed claims against Judge McFalls in both his official and individual
capacities, and against Allegheny County ("the County").*fn1 The Amended
Complaints allege that Judge McFalls and Allegheny County have violated
42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43
Pa.Const.Stat.Ann. § 1421 et seq.
Before the Court are motions to dismiss filed by both of the defendants
in this matter. We have had the benefit of oral argument on these
motions, and have thoroughly considered the submissions of the parties as
well as the applicable law. For the reasons set forth below, we will
grant Judge McFalls' motions to dismiss the claims brought against him in
his individual capacity in part, and deny them in part. We will dismiss
the claims brought under the Pennsylvania Whistleblower Law, but will
deny his motions to dismiss the § 1983 claims. Judge McFalls' motions
to dismiss the claims brought against him in his official capacity will
be granted. We will also grant Allegheny County's motions to dismiss in
On a motion to dismiss, we accept facts as alleged in the Amended
Complaints (Doc. 14, Doc. 12). Since the Amended Complaints include
allegations specific to the individual plaintiffs, we turn first to the
facts alleged by Barbara Joseph and her husband, James Joseph. Defendant
H. Patrick McFalls, Jr., was a Judge of the Court of Common Pleas of
Allegheny County, Pennsylvania. Plaintiff Barbara Joseph became Judge
McFalls' legal secretary on October 7, 1996. Plaintiff James Joseph
became the Judge's judicial law clerk on August 14, 1998.
For over three years, plaintiffs had observed that the Judge was
addicted to alcohol and had been treated for alcoholism. They also
observed that this abuse of alcohol was affecting the Judge's ability to
perform his duties. During October and November of 2001, the plaintiffs
observed behavior indicating that Judge McFalls was under the influence
of alcohol and/or drugs while performing his official duties.
Judge McFalls was scheduled to return from a vacation in the Cayman
Islands on October 22, 2001, to begin three days of pretrial
conciliations. When he failed to return, his staff was forced to cancel
the conciliations. Judge McFalls had also scheduled arguments for his
General Argument List for October 25, 2001. Due to his abuse of alcohol,
he instructed Barbara Joseph to reschedule these and to tell the lawyers
that he had developed an illness in the islands.
The defendant returned on the evening of October 29, 2001, and spent
the night at a hotel near the airport because he was inebriated. The next
day he arrived late to court, dressed in vacation clothes and sandals and
still under the influence of alcohol. He was scheduled to hear argument
in two cases that day, and he was also conducting a jury trial. During
the course of the jury trial, a bottle of vodka dropped out of his pocket
in front of people.
On October 31, 2001, Judge McFalls instructed Barbara Joseph to cancel
his December bench trials and to alert the court's Calendar Control
office that he would be unavailable for arguments in December or
January. He also instructed his secretary to invite several of his
acquaintances to join him as guests in the Cayman Islands for
Thanksgiving, and to enter onto his calendar a series of weeks from
November through April when he planned to return to the Cayman Islands.
Defendant also requested that the plaintiffs help him "get rid" of his
jury trial because he planned to return to the Cayman Islands on Thursday
November 8 and return on Monday evening, November 12.
From October 31 until November 8, 2001, the Josephs observed that the
Judge was conducting court business while under the influence of either
alcohol and/or drugs. Judge McFalls was assigned to conduct a jury trial
beginning on November 5, 2001. According to the Amended Complaints, the
jury trial was delayed in substantial part because Judge McFalls would
arrive late in the morning and was generally under the influence of
Judge McFalls instructed Barbara Joseph to cancel argument on a motion
for summary judgment which had been previously postponed.
On November 9, 2001, Barbara Joseph confronted Judge McFalls about his
use of alcohol. According to the Amended Complaint, the Judge replied
"Are you threatening me?"
Judge James and President Judge Robert Kelly scheduled a meeting with
Judge McFalls to be held upon his return from the Cayman Islands. Judge
James told the plaintiffs that he would confront Judge McFalls and give
him the opportunity to go to alcohol rehabilitation. If he refused, then
Judge James would report the conduct to the Supreme Court.
On November 13, 2001, the plaintiffs telephoned Judge McFalls in the
Cayman Islands, and told him that Judge James wanted to see him as soon
as he returned. James Joseph told the Judge that he should be prepared
because the meeting was called to discuss his drinking behavior.
On the morning of November 14, 2001, an Allegheny County Deputy Sheriff
handed Barbara Joseph two envelopes — one for herself and one for
her husband James. The letters, dated November 13, 2001, stated:
"Effective immediately, you are discharged from your position."
The deputy sheriff then escorted Barbara Joseph from the building,
telling her that he had been "instructed to deposit [her] on the sidewalk
outside the building." According to the Amended Complaint, Judge McFalls
later called James Joseph and told him: "I had to carpet bomb you,
because you wanted to send me to rehabilitation."
John Jakomas' Amended Complaint includes the following additional
allegations: Plaintiff John J. Jakomas became Judge McFalls' courtroom
deputy, or tipstaff, on March 2, 1998.
During October and November, 2001, Jakomas observed a pattern of
behavior indicating that Judge McFalls was under the influence of alcohol
while performing his official duties and while driving. On the night of
October 5, 2001, Judge McFalls called Jakomas at his home from his car,
and told the tipstaff he was driving to College Park, Maryland, and that
he was drinking and driving. Judge McFalls' abuse of alcohol affected his
ability to perform his duties. He failed to return from a vacation in the
Cayman Islands and missed his entire General Argument list for October
Due to his abuse of alcohol, Judge McFalls also missed his assigned
settlement conferences on October 22, 23, and 24, 2001. Jakomas handled
some of the settlement conferences himself, and completed the
Judge McFalls was assigned to conduct a jury trial on November 5,
2001. During that trial, the Judge was rarely available because of his
abuse of alcohol and his planning for a return trip to the Cayman Islands
as soon as the trial could be completed. On November 8, 2001, during the
trial, Jakomas had a conversation with Judge Robert Gallo, of the Civil
Division of the Court of Common Pleas, concerning Judge McFalls'
On November 13, 2001, Judge McFalls left a voice mail message for
Jakomas informing him that there was no reason for him to come into work
the next morning. The next day, Judge McFalls fired Jakomas by letter.
The letter was given to Judge James' staff and mailed to the tipstaff. It
said: "Effective immediately, you are discharged from your position as my
Court tipstaff. Please remove all your personal belongings as soon as
possible." The letter was also sent to the President Judge of the Court of
Common Pleas, to Judge James, and to the Court Administrator.
Judge McFalls later said that he had to "carpet bomb" his staff on
November 14 because they were trying to get him into rehabilitation.
We take judicial notice of the fact that the Judicial Conduct Board
("the Board") filed formal charges against Judge McFalls with the Court
of Judicial Discipline.*fn2 Trial was set for September 25, 2002. Prior
to trial, the parties reached an agreement whereby Judge McFalls resigned
his judicial office as of September 16, 2002, and was disqualified from
future service in any judicial capacity in the Commonwealth of
Pennsylvania. (Letter to the Court from A. Taylor Williams, Legal Counsel
to the Court Administrator of Pennsylvania, dated September 23, 2002). As
part of the agreement, the Board withdrew its complaints against Judge
McFalls. (Motion to Withdraw Complaints dated September 23, 2002).
Fed.R.Civ.P. 12(b)(6) provides that a court may dismiss a complaint
"for failure to state a claim upon which relief may be granted."
Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the
legal sufficiency of the complaint. Holder v. City of Allentown,
987 F.2d 188, 194 (3d Cir. 1993). In considering a motion to dismiss, the
court must accept as true all of the factual allegations contained in the
complaint, and must draw all reasonable inferences in favor of the
plaintiff. Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). Dismissal of
claims under Rule 12(b)(6) is appropriate only if it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim upon
which relief may be granted. Hishon v. King & Spaulding, 467 U.S. 69,
73 (1984). Where the Eleventh Amendment to the United States Constitution
is raised as a jurisdictional bar to the court's subject matter
jurisdiction, these objections must be considered as a motion to dismiss
under Fed.R.Civ.P. 12(b)(1). Blanciak v. Allegheny Ludlum Corp.,
77 F.3d 690, 694 n. 2 (3d Cir. 1996).
A. Defendant McFalls' Motion to Dismiss Counts I and III in his
Personal Capacity (CA 01-2294 Doc. 10, CA 01-2329 Doc. 9)
Plaintiffs assert that Judge McFalls fired them because they reported
his abuse of alcohol. They contend that this speech was protected by the
First Amendment, and that their discharge violated § 1983. Judge
McFalls argues that these claims must be dismissed because the
plaintiffs' speech was not protected.
A prima facie case of retaliation for engaging in speech protected by
the First Amendment requires a showing that (1) the plaintiff engaged in
constitutionally protected speech; (2) the plaintiff was subjected to
adverse action or deprived of some benefit; and (3) the protected speech
was a "substantial" or "motivating factor" in the adverse action. Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S. 274,
287 (1977). To determine the first element, whether an employee's speech
is protected by the First Amendment, courts use the balancing test set
out in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) to weigh
the interests of the government employer and the public employee. Under
Pickering, the court must first decide whether the speech at issue
addressed a matter of public concern. If so, the court must weigh the
employee's interest in speaking out against the government's interest in
promoting the efficiency of the services it performs through its
employees. Pickering, 391 U.S. at 568. The employee bears the burden of
proving that his speech was protected under the particular circumstances.
Connick v. Myers, 461 U.S. 138, 148, n. 7 & 150, n. 10 (1983).
Whether the speech at issue is protected by the First Amendment is a
question of law for the court.*fn3
The defendant contends that we should dismiss these claims under
Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976) and Roseman v. Indiana
University, 520 F.2d 1364 (3d Cir. 1975), cases where the Court of
Appeals considered whether the nature of the employment relationship was
seriously undermined by the employee's comments, and whether the
employee's speech was entitled to First Amendment protection. We agree
with the defendant that the relationship between a judge and his staff is
highly confidential. We recognize that, under Pickering, the nature of
the working relationship, whether personal loyalty and confidentiality
were necessary to that relationship, and whether the employee's comments
were disruptive or had the potential for disruption, are all highly
relevant to deciding whether an employee's speech is protected. In
addition, public employees, such as the plaintiffs in this case, have a
limited right under the First Amendment to speak out on matters of pubic
concern. Connick, 461 U.S. at 146. It is well settled that although "a
public employee does not relinquish First Amendment rights to comment on
matters of public interest by virtue of public employment[,]"
nevertheless the government has a broader authority to
speech of its employees than it has over private citizens. Id. at 140.
However, we conclude that the factors we must balance under Pickering
are not sufficiently developed at this stage in the litigation for us to
make that determination. The Amended Complaints do not establish facts
that would allow us to balance the employer's interests. Therefore we
find that the plaintiffs have alleged the appropriate facts to survive a
motion to dismiss, and we ...