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Kovac v. Pennsylvania Turnpike Commission

August 11, 2009

DONALD KOVAC, PLAINTIFF,
v.
PENNSYLVANIA TURNPIKE COMMISSION, MITCHELL RUBIN, GEORGE HATALOWICH, MELVIN SHELTON, AND MARK ROWE, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Presently before the Court is the MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), with brief in support, filed by Defendant Mark Rowe (Document Nos. 9 and 14), the MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT, with brief in support, filed by Defendants Pennsylvania Turnpike Commission, Mitchell Rubin, George Hatalowich, and Melvin Shelton (Document Nos. 10 and 11); the RESPONSE BRIEF IN OPPOSITION TO DEFENDANTS' MOTIONS, filed by Plaintiff Donald Kovac (Document No. 19), the REPLY BRIEF filed by Defendant Rowe (Document No. 22); and the REPLY BRIEF filed by Defendants Pennsylvania Turnpike Commission, Mitchell Rubin, George Hatalowich, and Melvin Shelton (Document No. 23).

BACKGROUND

As the law requires, all disputed facts and inferences are resolved in favor of Plaintiff, the non-moving party. The following background is drawn from the Complaint and the factual allegations therein are accepted as true for the purpose of this Opinion.

On April 6, 2009, Plaintiff Donald Kovac ("Plaintiff") commenced this lawsuit pursuant to 42 U.S.C. § 1983, in which he alleges that he was unlawfully terminated from his employment in retaliation for his exercise of the right of free speech. Plaintiff also brings a state law claim under the Pennsylvania Whistleblower Law, 43 Pa. C.S. § 1421 et seq.

From April 2005 until November 20, 2008, Plaintiff was employed as a Labor Relations Manager by the Pennsylvania Turnpike Commission ("PTC"). Plaintiff alleges that his employment was terminated in retaliation for his recommendation that the employment of Christopher J. O'Reilly ("O'Reilly"), a PTC District #4 Toll Collector and Teamsters Union Local No. 77 member, not be reinstated and for his "whistle-blowing" on PTC's unwritten favoritism policy directed towards PTC employees who are members of Teamsters Union Local No. 77.

Defendant Mark Rowe ("Defendant Rowe") is alleged to have been the "Business Agent" of Teamsters Union Local No. 77. Defendants Mitchell Rubin, George Hatalowich, and Melvin Shelton ("the Commission Defendants") were employees of the PTC during the relevant time in question.

Defendant Rowe and the Commission Defendants have each filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), in which they contend that the Complaint lacks the factual specificity required under the decisions of the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, --U.S.--, 129 S.Ct. 1937 (2009). The Commission Defendants have also moved, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56.

The issues have been fully briefed by the parties and the matter is ripe for disposition. After a careful consideration of the motions, the filings in support and opposition thereto, and the relevant case law, the Motions to Dismiss will be granted in part and denied in part and the Motion for Summary Judgment will be denied.

STANDARD OF REVIEW

Rule 8 of the Federal Rules of Civil Procedure provides that a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and " 'contemplates the statement of circumstances, occurrences, and events in support of the claim presented' and does not authorize a pleader's 'bare averment that he wants relief and is entitled to it.' " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1202, pp. 94, 95 (3d ed. 2004)). "Each allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d).

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the legal sufficiency of the complaint. The court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the United States Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citations omitted). Thus, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

Recently, the United States Supreme Court reaffirmed Twombly in Ashcroft v. Iqbal, --U.S.--, 129 S.Ct. 1937 (2009), and expressly extended the Twombly pleading standard to matters outside the realm of antitrust law. When a complaint contains well-pled factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. Moreover, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949.

However, nothing in Twombly or Iqbal has changed other pleading standards for a Rule 12(b)(6) motion to dismiss. The United States Supreme Court did not impose a new heightened pleading requirement, but reaffirmed that Rule 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief, not "detailed factual allegations." See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 555). Moreover, the United States Supreme Court did not abolish the Rule 12(b)(6) requirement that "the facts alleged must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 555-56, 563 n.8.).

Generally, "to the extent that [a] court considers evidence beyond the complaint in deciding a 12(b)(6) motion, it is converted to a motion for summary judgment." Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999); Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

The Commission Defendants have filed a Statement of Material Facts and the Unsworn Declaration of Patrick J. Caro. The Court will not consider these documents in deciding the motion to dismiss because to do so would effectively convert the motion to dismiss to a motion for summary judgment. Friedman v. Lansdale Parking Auth., 151 F.R.D. 42, 44 (E.D. Pa. 1993) ("court has complete discretion to determine whether or not to accept any material beyond the pleadings that is offered in conjunction with a defendant's Rule 12(b)(6) motion.). The Motion, in the alternative, For Summary Judgment will be denied without prejudice.

DISCUSSION

A. Plaintiff's Federal Claims

1. Claims Pursuant to 42 U.S.C. ...


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