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Gudalefsky v. Pennsylvania Dep't of Transportation

January 29, 2007

CHERLENE K. GUDALEFSKY, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Judge Jones

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Pending before this Court is a Motion to Dismiss Plaintiff's Complaint, ("Motion to Dismiss") filed by Defendant, the Pennsylvania Department of Transportation ("Defendant" or "DOT"), on August 15, 2006. (Rec. Doc. 9). For the reasons that follow, the Motion to Dismiss shall be construed as a Motion for Summary Judgment, pursuant to Rule 12(6)(6) of the Federal Rules of Civil Procedure, and granted.

PROCEDURAL HISTORY

On April 29, 2005, pro se Plaintiff Cherlene Gudalefsky ("Plaintiff or "Gudalefsky") filed a Complaint in the above-captioned action. (Rec. Doc. 1). On July 12, 2005, Defendant filed an Answer. (Rec. Doc. 8).

On August 15, 2006, Defendant filed a Motion to Dismiss. (Rec. Doc. 9). In response, this pro se Plaintiff filed a submission entitled "Motion," on August 29, 2006. (Rec. Doc. 10). On August 31, 2006, Defendant filed a Brief in Support of the Motion to Dismiss that included matters outside of the Complaint. (Rec. Doc. 11).

On November 21, 2006, Plaintiff filed a submission entitled "Briefs." (Rec. Doc. 13). In turn, on December 6, 2006, Defendant filed a Reply Brief. (Rec. Doc. 14).

Because Defendant's Brief in Support of the Motion to Dismiss (doc. 11) included matters outside of the Complaint (doc. 1), on December 20, 2006, this Court entered an Order indicating its intention to construe the Motion to Dismiss as a Motion for Summary Judgment and directing Plaintiff to file any materials in opposition to the Motion for Summary Judgment within ten (10) days of the Order's entry. (Rec. Doc. 15).

Accordingly, on December 29, 2006, Plaintiff filed a "Petition" and a "Brief." (Rec. Docs. 16, 17). We will construe these two submissions, as well as Plaintiff's August 29, 2006 and November 21, 2006 filings, collectively, as Plaintiff's Brief in Opposition to the instant Motion for Summary Judgment.

STANDARD OF REVIEW

Defendant's Motion was originally styled as a Motion to Dismiss. (Rec. Doc. 9). However, Defendant's subsequent submissions (docs. 11, 12, 14) include matters outside of the pleadings. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides:

[i]f, on a motion asserting the defense number (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. FED. R. CIV. P. 12(b)(6). Accordingly, on December 20, 2006, pursuant to Rule 12(b)(6) and as required by Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989), this Court entered an Order indicating its intention to construe the Motion to Dismiss as a Motion for Summary Judgment ("the Motion") and directing Plaintiff to file any materials in opposition to the Motion within ten (10) days of the Order's entry.*fn1

(Rec. Doc. 15).

Thus, in disposing of the instant Motion, we apply the standard of review for a ...


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