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MULGREW v. FUMO

July 29, 2004.

ROBERT MULGREW, Plaintiff,
v.
VINCENT J. FUMO, individually as a Pennsylvania State Senator, Defendant.



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion to Dismiss filed by Defendant Vincent J. Fumo ("Defendant" or "Senator Fumo") requesting dismissal of the "Second Cause of Action" from Plaintiff Robert Mulgrew's ("Plaintiff") Complaint, which consists of claims made under the Pennsylvania Constitution and a state law claim for intentional infliction of emotional distress,*fn1 Plaintiff's Response to Defendant's Motion to Dismiss, and Defendant's Reply thereto.*fn2

At issue in this Motion are Plaintiff's claims under the Pennsylvania Constitution. Plaintiff alleges that his termination from Defendant's employment was retaliatory and "violated Plaintiff's rights to free speech and due process of law under the Pennsylvania Constitution," rights which Plaintiff believes are protected, respectively, by Article I, Section 7,*fn3 and Article I, Section 1*fn4 of the Pennsylvania Constitution. (See Compl., ¶ 31.) For the following reasons, Defendant's Motion to Dismiss is GRANTED.

  I. BACKGROUND

  As the Court will focus solely on whether Plaintiff can establish a claim against Defendant for violating specific provisions of Article I of the Pennsylvania Constitution without any existing affirmative legislation, we dispense with a full recitation of the facts. At this procedural juncture, we accept as true the following facts as alleged by Plaintiff in his Complaint.

  Plaintiff was employed by Defendant, a Pennsylvania state senator, for over nine years. (Compl., ¶¶ 5, 15, 22.) In advance of an impending Pennsylvania gubernatorial primary, Plaintiff and Defendant attended a cocktail party organized by the Philadelphia Democratic City Committee. (Id. at ¶¶ 15, 17.) When Plaintiff entered the cocktail party, then-gubernatorial candidate Edward G. Rendell handed Plaintiff a campaign sticker reading "RENDELL GOVERNOR." (Id. at ¶ 18.) Subsequent to Plaintiff placing this sticker on his jacket lapel, Defendant approached Plaintiff and demanded that Plaintiff remove such sticker. (Id. at ¶¶ 19, 20.) When Plaintiff did not comply with Defendant's demand, Defendant told Plaintiff that his employment in Defendant's office was terminated. (Id. at ¶ 22.)

  Plaintiff contends that this termination took place before a large crowd that included many of Plaintiff's friends and colleagues, and resulted in Plaintiff's embarrassment, emotional harm, and loss of, inter alia, wages, medical insurance, and retirement benefits. (Id. at ¶¶ 26, 28, 29.) Plaintiff seeks both monetary and equitable relief, including compensatory damages, punitive damages, reinstatement to his former employment position, and reasonable attorneys' fees and costs.

  II. STANDARD OF REVIEW

  While Plaintiff's Second Cause of Action involves a matter of state law, procedurally this case is governed by federal law. Hanna v. Plumer, 380 U.S. 460, 473-74 (1965).

  Federal Rule of Civil Procedure 12 provides that a party may move to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the non-movant's well-plead averments of fact as true and view all inferences in the light most favorable to the non-moving party. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985); Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980); Abbdulaziz v. City of Philadelphia, No. 00-5672, 2001 U.S. Dist. LEXIS 16972, at *4 (E.D. Pa. Oct. 18, 2001). A motion to dismiss is appropriate only when the movant establishes that he is entitled to judgment as a matter of law and there exists "no set of facts in support of his [plaintiff's] claims which would entitle him to relief." Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). The court does not "inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

  III. DISCUSSION

  In view of Plaintiff's allegations and relief sought, the difficult issue before the Court is whether there exists a direct right of action for both money damages and equitable relief against a state government official for violations of Article I of the Pennsylvania Constitution. The parties disagree as to whether, under Pennsylvania law, Plaintiff can establish a claim against Defendant for a violation of Article I of the Pennsylvania Constitution in the absence of any affirmative legislation.

  A. Novel Issue of State Law

  After extensive research, we found that the issue of whether a direct right of action exists under Article I of the Pennsylvania Constitution is unclear under Pennsylvania case law. See e.g., Curran v. Southeastern Pennsylvania Trans. Authority, No. 01-2593, 1999 U.S. Dist. LEXIS 521, at *4 (E.D. Pa. Jan. 21, 1999) (finding that whether a private cause of action exists under Article I, Section 7 of the Pennsylvania Constitution is a difficult and unsettled issue of state ...


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