The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendants Captain John G. Rice, Colonel Jeffrey B. Miller, Lieutenant Colonel Cynthia Transue, Lieutenant David Douglas, Daniel McGuire, Esquire, Joe M. Robb, and Josie Sharp's Motion to Dismiss (Doc. 76) Count III of Plaintiffs Jimmy A. Schlier, Wreckers International Inc., d/b/a Schlier's Towing & Service Center's Second Amended and Supplemental Complaint (Doc. 67) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons set forth below, Defendants' motion will be denied. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343.
The following are the facts alleged in Plaintiffs' Second Amended and Supplemental Complaint (Doc. 67). Jimmy A. Schlier ("Schlier") owns and operates Wreckers International Inc., d/b/a Schlier's Towing & Service Center ("Towing Co."). (Doc. 67 ¶ 3.) Schlier and Towing Co. were listed on the approved referral list of the Pennsylvania State Police ("State Police"), and thereby regularly received requests from several barracks of the State Police to tow vehicles which were broken-down, involved in accidents, or impounded for criminal investigation. (Doc. 67 ¶ 15.) Schlier and Towing Co. also provided automotive service to the State Police, including maintenance, body work, and storage. (Doc. 67 ¶ 16.)
Beginning in late 2001, Schlier and Towing Co. became involved in a series of billing disputes with the State Police. (Doc. 67 ¶ 17.) Specifically, Plaintiffs allege that the State Police failed to pay for towing services and repairs made to state vehicles. (Id.) Schlier and Towing Co. contacted Defendant Captain John G. Rice ("Captain Rice") in April of 2002, who confirmed that the State Police owed Plaintiffs for their services and directed them to submit all unpaid invoices to him. (Doc. 67 ¶ 20.) Schlier also discussed the billing dispute with a member of the Pennsylvania General Assembly, Representative Kelly Lewis ("Representative Lewis"). (Doc. 67 ¶ 19.)
In addition, on April 27, 2002, Schlier sent a formal complaint to Captain John R. Brown, Director of the Internal Affairs Division of the State Police, concerning the actions of certain members of the State Police. (Doc. 67 ¶ 23.) In the complaint, Schlier criticized the State Police for not paying its bills and for directing towing business away from Plaintiffs and toward another towing operator. (Doc. 67 ¶ 24.) Schlier sent a copy of this complaint to Representative Lewis, who contacted the State Police on Schlier's behalf. (Doc. 67 ¶ 25.) Captain Brown forwarded Schlier's complaint to Captain Rice sometime in May of 2002. (Doc. 67 ¶ 26.)
As had been directed by Captain Rice, Plaintiffs submitted copies of unpaid invoices. (Doc. 67 ¶ 21.) These invoices totaled $33,325.75. (Id.) Captain Rice forwarded the copies of the unpaid invoices to Daniel McGuire, Esquire, assistant counsel for the State Police ("Attorney McGuire"). (Id.) On May 17, 2002, Attorney McGuire informed Plaintiffs that the State Police was refusing payment. (Id.)
On August 27, 2002, Captain Rice informed Schlier by letter that he was removing Towing Co. from all of the towing referral lists, effective September 6, 2002. (Doc. 67 ¶ 27.) Captain Rice stated in the letter that Towing Co. could apply for reinstatement after a six month period. (Doc. 67 ¶ 28.)
On September 6, 2002, Plaintiffs' counsel wrote Attorney McGuire requesting that Towing Co.'s removal from the referral list be stayed pending an investigation and asserted that Towing Co.'s removal from the referral list was vindictive and motivated by Schlier's formal complaint. (Doc. 67 ¶ 29.) On September 24, 2002, Attorney McGuire informed Plaintiffs that the stay request had been denied. (Doc. 67 ¶ 30.)
On November 15, 2002, Plaintiffs filed an action in the Pennsylvania Board of Claims against the State Police for non-payment of charges totaling $472,482. (Doc. 67 ¶ 32.) Plaintiffs alleged that Attorney McGuire unequivocally refused to pay the outstanding charges. (Id.)
On March 6, 2003, Plaintiffs applied to the State Police for readmission to the towing service list. (Doc. 67 ¶ 33.) After not receiving an answer for two months, on May 7, 2003, Schlier wrote to the State Police inquiring as to the status of his application for readmission. (Doc. 67 ¶ 34.) Also, on May 8, 2003, Towing Co. applied to the Pennsylvania Department of General Services ("Department") to renew its status as an approved vendor of automotive service to the State Police for the fiscal year beginning July 1, 2003. (Doc. 67 ¶ 35.) On May 28, 2003, Defendant Joe Robb, Director of Vehicle Management for the Department, denied Towing Co.'s renewal application. (Doc. 67 ¶ 36.) However, in June of 2003, Towing Co. was reinstated to the towing service list of the Fern Ridge barracks. (Doc. 67 ¶ 37.)
After Towing Co. had been reinstated to the towing service list of the Fern Ridge barracks, Schlier met with Mario Scavello, a Representative in the Pennsylvania General Assembly ("Representative Scavello"), and Defendant Lieutenant David Douglas ("Lieutenant Douglas") in an attempt to have Towing Co. reinstated to the Swiftwater barracks towing service list. (Doc. 67 ¶ 38.) During the meeting, Schlier mentioned that he had been reinstated to the towing service list of the Fern Ridge barracks, an event which Lieutenant Douglas stated he had not been aware. (Id.) A few days after the meeting, Towing Co. was removed from the Fern Ridge barracks towing service list. (Doc. 67 ¶ 39.) Towing Co. was not reinstated to any State Police barracks' towing service list until September of 2006. (Doc. 67 ¶ 40.) The Department has not renewed Towing Co.'s status as an approved vendor of automobile service for the State Police. (Doc. 67 ¶ 41.)
On August 20, 2004, Plaintiffs filed a Complaint in this Court. (Doc. 1.) Thereafter, on November 3, 2004, Defendants moved to dismiss Plaintiffs' Complaint. (Doc. 13.) After Plaintiffs filed an Amended Complaint on January 7, 2005 (Doc. 18), on January 11, 2005, the Court entered an Order denying Defendants' motion as moot. (Doc. 19.) On January 24, 2005, Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint. (Doc. 20.) On February 16, 2006, the Court entered a Memorandum and Order denying Defendants' motion. (Doc. 29.)
On July 25, 2006, Plaintiffs filed a Motion for Leave to Serve a Second Amended Complaint. (Doc. 40.) The Court denied Plaintiffs' ...