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Fiorucci v. City of Wilkes-Barre

March 14, 2007

DONALD L. FIORUCCI PLAINTIFF,
v.
THE CITY OF WILKES-BARRE, THE CITY OF WILKES-BARRE FIRE DEPARTMENT, THOMAS LEIGHTON, AND FIRE CHIEF JACOB LISMAN DEFENDANTS.



The opinion of the court was delivered by: Judge Kosik

MEMORANDUM

Before the court is the defendants' motion to dismiss the plaintiff, Donald Fiorucci's (hereinafter "Plaintiff") amended complaint. For the reasons that follow, we will grant the defendants' motion, dismiss Plaintiff's amended complaint, and close this case.

I. BACKGROUND

Plaintiff began his employment as a Wilkes-Barre firefighter in 1973. (See Amended Complaint, Doc. 15 at ¶ 10). He was diagnosed with vascular necrosis in 1997. Plaintiff received numerous promotions throughout his career, reaching the rank of Deputy Chief in 2000. Plaintiff's vascular necrosis did not interfere with his ability to perform the activities required of a Deputy Chief.

In 2004, defendant Thomas Leighton was elected Mayor of Wilkes-Barre. Mayor Leighton appointed defendant, Jacob Lisman, Chief of the Wilkes-Barre Fire Department. Plaintiff claims that on January 30, 2004, Lisman and Mayor Leighton demoted Plaintiff to the rank of Private. (See Amended Complaint, Doc. 15 at ¶ 21). Plaintiff contends that the defendants demoted him due to the fact that he had a disability and with the expectation that Plaintiff would be forced to retire. Id. at ¶¶ 36 and 63. Plaintiff was placed on Heart and Lung Benefits, a disability program available to firemen, on February 12, 2004. Plaintiff's benefits were based upon his rank as Private. Plaintiff notified the defendants that he would retire from the fire department by letter of May 29, 2004, to be effective May 31, 2004. Id. at ¶ 27.

Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (PHRC) on October 18, 2004. (See Amended Complaint, Doc. 15 at ¶ 4). He cross-filed the complaint with the Equal Employment Opportunity Commission (EEOC). Plaintiff filed a complaint in this court on May 30, 2006. Plaintiff's original complaint included the following counts: violation of Americans' with Disabilities Act (ADA), violation of the Pennsylvania Human Relations Act (PHRA), violation of 42 U.S.C. § 1983, constructive discharge, violation of public policy, and breach of contract. See Complaint, Doc. 1). Neither the ADA nor the § 1983 counts asserted claims based upon constructive discharge. The defendants filed a motion to dismiss asserting that Plaintiff's federal claims were barred by the statute of limitations. (See Motion to Dismiss, Doc. 7). Plaintiff filed an amended complaint on October 12, 2006. Plaintiff's amended complaint includes the same counts as the original complaint. The only relevant change from the original complaint is the addition of language alleging that Plaintiff was forced to retire as a result of the ADA and § 1983violations.

(See Amended Complaint, Doc. 15 at ¶¶ 34 & 59). The defendants filed a motion to dismiss Plaintiff's amended complaint on November 6, 2006. (Doc. 16). The parties filed response and reply briefs. (Docs. 23 and 24).

II. STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, a plaintiff's complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The Rules further counsel this court to construe all pleadings, "as to do substantial justice." Fed.R.Civ.P. 8(f). When ruling on a motion to dismiss, a district court must treat all well-pleaded allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. Consolidated Rail Corp. v. Portlight, Inc., 188 F.3d 93, 94 (3d. Cir. 1999) (citations omitted); Doe v. Division of Youth and Family Services, et. al, 148 F. Supp. 2d 462 (D.N.J. 2001). Granting a motion to dismiss is appropriate only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must decide not whether the plaintiff will prevail on his or her claims, but rather, whether the claimant is entitled to offer proof to support his or her claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). It is the defendant's burden to demonstrate that the plaintiff has not stated a viableclaim. Gould Electric Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).

Expiration of the statute of limitations is generally raised as an affirmative defense pursuant to Fed.R.Civ.P. 8(c). The limitations defense may be raised in a motion to dismiss for failure to state a claim under Rule 12(b)(6) if, "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (quoting Hanna v. United States Veterans' Administration Hospital, 514 F.2d 1092, 1094 (3d Cir. 1975)). In a Rule 12(b)(6) motion, the defendant bears the burden of demonstrating that the plaintiff has not stated a viable claim. See Gould Electric Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).A complaint may not be dismissed under Rule 12(b)(6) as untimely under the relevant statute of limitations unless it is plain from the face of the complaint that it was not timely filed. Hunt v. Pa Dep't of Corr., 174 Fed. Appx. 679, 681 (3d Cir. 2006) (citations omitted).

III. DISCUSSION

The defendants assert that Plaintiff's ADA and § 1983 claims are barred by the applicable two-year statute of limitations. They contend that Plaintiff's federal claims accrued the day that he was demoted from Deputy Chief to Private in the WilkesBarre Fire Department, January 30, 2004. The defendants argue that Plaintiff's filing of a PHRC complaint, cross-filed with the EEOC, in October of 2004, did not toll the statute of limitations relevant to the two federal claims. They posit that the statute of limitations on Plaintiff's ADA and § 1983 claims expired before Plaintiff filed a complaint in this court on May 30, 2006. The defendants further challenge Plaintiff's naming both the City of Wilkes-Barre and the City of Wilkes-Barre Fire Department as defendants in this case. Finally, they aver that the constructive discharge claim in the amended complaint does not relate back to the date Plaintiff filed the initial complaint.

Plaintiff acknowledges that the statute of limitations for ADA and ยง 1983 claims is two years. (See Brief in Opposition, Doc. 23 at p. 4 and 6). He counters, however, that the accrual date is the day he was forced to retire, May 31, 2004. Plaintiff argues that the date of his demotion to Private was only included in the amended complaint, "for the purposes of showing a policy, scheme and design by the Defendants to discriminate against the Plaintiff because of his disability and subsequent filing for Heart and Lung and Workers' Compensation." (Brief in Opposition, Doc. 23 at p. 4). He further notes that the initial complaint contained an entire count asserting a constructive discharge claim. Finally, ...


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