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Benkoski v. Wasilewski

September 7, 2007


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are three (3) separate motions to dismiss Plaintiffs Edward Benkoski and Theodore Carl's Amended Complaint (Doc. 14), filed by Defendants Bonnie Wasilewski and Paulette Yenchik (Doc. 17), Jerry Butala and Jerry Kincel (Doc. 18), and Francis J. Hacken (Doc. 33). Because the Younger Doctrine does not apply; Defendants Butala, Kinel, and Hacken are entitled to sovereign immunity from state law claims only to the extent they were sued in their official capacities; Defendants Wasilewski and Yenchik are not immune under the Tort Claims Act; Defendant Yenchik is entitled to qualified immunity from Plaintiffs' federal claims but Defendant Wasilewski is not; Plaintiffs have stated claims upon which relief can be granted for all counts except (a) the First Amendment claim against Defendant Yenchik, (b) the Fourteenth Amendment claim against all Defendants, and (c) the claims for monetary damages under the Pennsylvania Constitution; and punitive damages under federal and state law are not foreclosed, the Court will grant these motions in part and deny them in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.


On April 2, 2007, Plaintiffs filed their Amended Complaint. (Doc. 14.) Therein, they allege as follows. In October of 2005, Plaintiff Carl organized a local political watchdog organization in Bear Creek Township known as the Residents of Bear Creek Township for Good Government and was later appointed auditor of the township. (Am. Compl., Doc. 14 ¶¶ 12-13.) The newly elected Bear Creek Township Board of Supervisors then chose Defendant Wasilewski as chairperson and Defendant Yenchik as secretary/treasurer and administrative assistant. (Id. ¶ 14.)

In January through March of 2006, Plaintiffs Carl and Benkoski requested that Defendant Wasilewski provide copies of receipts, disbursements, and employee time cards for the township, along with information on the positions the Supervisors were performing as paid township employees. (Id. ¶¶ 15-17.) Defendant Wasilewski refused to provide these records. (Id.)

In May of 2006, after Plaintiff Benkoski filed a civil action in the Luzerne County Court of Common Pleas to compel production of the records, Defendant Wasilewski and Bear Creek Township agreed to make the requested records available by June 15, 2006. (Id. ¶¶ 18-19.) On June 16, 2006, Plaintiffs went to the Bear Creek Township municipal building to review records, which were not provided, and Plaintiff Carl openly and without objection started a tape recorder to document the discovery process. (Id. ¶ 19.)

Later that week, the county court ordered that the Defendants make the requested documents available to Plaintiffs by June 30, 2006. (Id. ¶¶ 20-21.) On June 30, 2006, Plaintiffs returned to the municipal building and again, Plaintiff Carl openly and without objection started a tape recorder to make a record of the events that day. (Id. ¶¶ 22-23.) Defendant Yenchik refused to release the records absent Defendant Wasilewski's authorization, and Defendant Wasilewski did not provide authorization. (Id. ¶ 22.)

In July of 2006, the Residents of Bear Creek Township for Good Government published a newsletter in which Defendant Wasilewski was accused of issuing payments without proper verification, including payments to herself, as well as refusing to provide access to public records. (Id. ¶ 24.) On July 20, 2006, Plaintiffs instituted a petition, opposed by Defendant Wasilewski, to increase the size of the Board of Supervisors from three (3) to five (5) members. (Id. ¶¶ 25-26.) The next day, Plaintiff Benkoski filed a contempt petition against Defendant Wasilewski in the county court based on her failure to provide the requested public records. (Id. ¶ 27.) Also, on July 24, 2006, Plaintiff Carl sent a letter to the Pennsylvania Ethics Commission requesting a ruling as to the propriety of Defendant Wasilewski's conduct. (Id. ¶ 28.)

Beginning on June 16, 2006, Defendants Wasilewski and Yenchik initiated a plan to file a false criminal complaint against Plaintiffs. (Id. ¶ 29.) This plan was discussed with Defendant Hacken, who agreed to meet with and direct Defendants Butala and Kincel to assist in investigating Plaintiffs even though Defendants knew that Plaintiffs had not committed a crime. (Id.)

In the third week of July of 2006, Defendant Butala telephoned Plaintiff Carl's home, spoke with his wife, and asked her if Plaintiff Carl was a friend of Plaintiff Benkoski (Id. ¶ 32.) Defendant Butala also stated that he wanted to interview Plaintiff Carl about an incident that occurred at the municipal building on June 16, 2006. (Id.) On July 29, 2006, Defendants Butala and Kincel went to Plaintiff Carl's home, read him his Miranda rights, and questioned him regarding his open and unobjected to tape recordings of his effort to obtain public records on June 16 and June 30 of 2006. (Id. ¶ 33.)

On August 11, 2006, Defendant Butala went to Plaintiff Benkoski's home, read him his Miranda rights, and questioned him regarding the open and unobjected to tape recordings made on June 16 and June 30 of 2006. (Id. ¶ 34.) Defendant Butala informed Plaintiff Benkoski that he and Plaintiff Carl were being investigated for a felony and that the investigation was being conducted at the behest of Defendant Wasilewski. (Id. ¶¶ 35-36.) Defendant Butala stated that Plaintiff Benkoski was not under arrest at that time, but that Butala was proceeding immediately to the Luzerne County District Attorney's Office to discuss a possible felony prosecution. (Id. ¶¶ 36-37.)

Defendants never consulted with the Luzerne County District Attorney's Office regarding the possible prosecution of Plaintiffs. (Id. ¶ 39.) Defendants never even intended to do so. (Id. ¶ 40.) All of Defendants' actions were taken with the knowledge that no crime was committed by Plaintiffs. (Id. ¶ 38.)

As a result of the investigation conducted by Defendants, Plaintiffs were required to retain criminal defense counsel. (Id. ¶ 41.) When their counsel contacted Defendant Kincel concerning the investigation, Kincel stated that no felony charges would be filed against Plaintiffs so long as they "ma[d]e nice" with Defendant Wasilewski. (Id. ¶ 42.)

Plaintiffs desire to continue to engage in political activity to achieve a fiscally sound Bear Creek Township government and a responsible Board of Supervisors. (Id. ¶ 44.) Defendants, however, have retained the option of instituting false felony charges against Plaintiffs if they do not cease their political opposition to Defendant Wasilewski. (Id. ¶ 43.)

On November 7, 2006, the voters of Bear Creek Township changed the municipal form of government from a three (3) person Board of Supervisors to a five (5) person Board. (Id. ¶ 45.) Plaintiff Benkoski, a former member of the Board of Supervisors, is a likely Democratic candidate for one of the newly created seats. (Id. ¶ 46.) Plaintiff Carl is a likely Republican candidate for one of the newly created seats. (Id. ¶ 47.) Plaintiffs fear being barred from serving on the Board of Supervisors, pursuant to the Pennsylvania Constitution, as a result of being convicted of the baseless felony charges with which they have been, and continue to be, threatened by Defendants. (Id. ¶¶ 48, 50.)

On November 20, 2006, an unidentified state trooper went to Plaintiff Carl's house and spoke with his wife, supposedly to investigate the activation of a burglar alarm, although no alarm had been activated. (Id. ¶ 49.)

Plaintiffs claim that their First and Fourteenth Amendment rights were violated and seek redress pursuant to 42 U.S.C. § 1983 (Id. ¶¶ 51-57.), the federal statute that provides a remedy for persons who have been deprived of their federal constitutional rights by a person acting under color of state law. Plaintiffs also allege that their rights to free speech, political association, and assembly under the Pennsylvania Constitution were violated. (Id. ¶¶ 58-59.) Finally, Plaintiffs assert that Defendants committed the state law tort of intrusion upon seclusion. (Id. ¶¶ 60-63.) Plaintiffs seek monetary and equitable relief.

On April 23, 2007, Defendants Wasilewski and Yenchik filed a Motion to Dismiss Plaintiffs' Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and on the grounds that Defendants Wasilewski and Yenchik are entitled to qualified immunity and governmental immunity, and that Plaintiffs' claims are barred by the Younger doctrine. (Mot. to Dismiss by Defs. Wasilewski & Yenchik, Doc. 17.) On April 25, 2007, Defendants Butala and Kincel filed their motion to dismiss Plaintiffs' state law claims in Counts II and III pursuant to Rule 12(b)(1) on the grounds that they are barred by sovereign immunity, and to dismiss Counts I and III of Plaintiff's Amended Complaint pursuant to Rule 12(b)(6). (Mot. of Defs. Butala & Kincel to Dismiss Pls.' Am. Compl., Doc. 18.) Defendant Hacken filed a similar motion on May 18, 2007. (Mot. of Def. Hacken to Dismiss Pls.' Am. Compl., Doc. 33.) Defendants filed supporting briefs. (Docs. 29, 34.) Plaintiffs filed briefs in opposition on May 17, 2007 (Doc. 32) and June 5, 2007 (Doc. 38). Defendants filed reply briefs on June 1, 2007 (Doc. 36) and June 22, 2007 (Doc. 41). As such, Defendants' motions are fully briefed and now ripe for disposition.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all of the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, --- L.Ed.2d ---- (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d. 80 (1957)). As a result of the Twombly holding, Plaintiffs must now nudge their claims "across the line from conceivable to plausible" to avoid dismissal thereof. Id. The Supreme Court noted just two weeks later in Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, --- L.Ed.2d ---- (2007) (per curiam), that Twombly is not inconsistent with the language of Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Id. (citing Twombly, 127 S.Ct. at 1959 (quoting Conley, 355 U.S. at 47)).

There has been some recent guidance from the Courts of Appeals about the apparently conflicting signals of Twombly and Erickson. The Second Circuit Court of Appeals reasoned that "the [Supreme] Court is not requiring [in Twombly] a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). Similarly, the Seventh Circuit Court of Appeals stated that "[t]aking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, - F.3d -, 2007 WL 2406859, at *4 (7th Cir. Aug. 24, 2007).

Until further guidance, this Court will follow the guidance of the Second and Seventh Circuit Courts of Appeals, and apply a flexible "plausibility" standard, on a case-by-case basis, in those contexts in which it is deemed appropriate that the pleader be obliged to amplify a claim with sufficient factual allegations.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994). The Court may also consider "undisputedly authentic" documents where the plaintiff's claims are based on the documents and the defendant has attached a copy of the document to the motion to dismiss. Id. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether the plaintiff will ultimately prevail. See id. In order to survive a motion to dismiss, the plaintiff must set forth information from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6), dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is not a judgment on the merits of the plaintiff's case, but only a determination that the court lacks the authority to hear the case. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A Rule 12(b)(1) motion may be treated either as a facial or a factual challenge to the court's subject matter jurisdiction. Gould, 220 F.3d at 178 (3d Cir. 2000). If the motion is treated as a facial attack, the court may consider only the allegations contained in the complaint and the exhibits attached to the complaint, matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies, and "undisputably authentic" documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss. See generally Pension Benefit Guar. Corp., 998 F.2d at 1196-97.

On the other hand, if the defendant submits and the court considers evidence that controverts the plaintiff's allegations, the court must treat the motion as a factual challenge under Rule 12(b)(1). Gould, 220 F.3d at 178. In such cases, "the trial court is free to weigh evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. No presumption of truthfulness attaches to the allegations in the plaintiff's complaint, and the burden of proof is on the plaintiff to show that the court possesses jurisdiction. Id. However, the plaintiff must be permitted to respond to the defendant's evidence with evidence supporting jurisdiction. Id. In the present matter, Defendants have submitted no evidence controverting the allegations contained in Plaintiffs' Amended Complaint. Therefore, the Court will consider only the allegations in the Plaintiffs' Amended Complaint, treating the Defendants' motions to dismiss as a facial attack on subject matter jurisdiction pursuant to Rule 12(b)(1) to the extent that they raise the issue of sovereign immunity.


I. Younger and Rooker-Feldman ...

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