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Adams v. County of Erie

September 23, 2009


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge


Plaintiff, A.J. Adams, an attorney formerly employed by the Erie County Public Defender's Office, has brought this civil action against the County and numerous individuals for alleged violations of his federal constitutional rights, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, and state contract and tort law arising out of the termination of his employment. Presently pending before me is the Plaintiff's Motion for Leave to File Proposed Second Amended Complaint [29] and the Defendants' Motion for Partial Judgment on the Pleadings [31]. I have jurisdiction over these matters pursuant to 28 U.S.C. § 1331, 1343, and 1367. For the reasons that follow, the Defendants' motion will be granted and the Plaintiff's motion will be granted in part and denied in part.


Rule 15(a)(1) of the Federal Rules of Civil Procedure provides that a party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. Fed. R. Civ. P. 15(a)(1)(A) and (B). Since neither of those circumstances pertain here, we are guided by Rule 15(a)(2), which allows amendment "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The rule further provides that leave should be "freely give[n] ... when justice so requires." Id. Mere delay in filing the amendment will not, alone, constitute grounds for denial unless the plaintiff's delay in seeking to amend is undue, motivated by bad faith, or prejudicial to the opposing party. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008) (citation omitted). Delay is "'undue'... when it places an unwarranted burden on the court or when the plaintiff has had previous opportunities to amend." Id. (citations omitted). In addition, leave to amend may be denied when the proposed amendment would be futile. Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007). "'Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997). Accordingly, in judging the futility of an amendment, we must apply the legal standard utilized under Fed. R. Civ. P. 12(b)(6) by accepting all pleaded allegations as true and viewing them in the light most favorable to the plaintiff. Winer Family Trust, 503 F.3d at 331; In re Alpharma Inc. Securities Litigation, 372 F.3d 137, 153-54 (3d Cir. 2004); In re Burlington Coat Factory, 114 F.3d at 1434.

In addition to the Plaintiff's motion for leave to file his proposed Second Amended Complaint, the Court has before it the Defendants' motion for partial judgment on the pleadings. Pursuant to Fed. R. Civ. P. 12(c), a judgment will be granted if, based on the pleadings, the movant is entitled to judgment as a matter of law. DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262 (3d Cir. 2008) (citation omitted). In making this determination, we accept the complaint's well-pleaded allegations as true and construe the complaint in the light most favorable to the nonmoving party; however, unsupported conclusory statements need not be accepted as true. Id. at 262-63.


Plaintiff A. J. Adams is an attorney at law residing in Erie, Pennsylvania. (SAC ¶ 1.) From February 1987 until January 13, 2006, he was employed by the Office of the Public Defender of Erie County, first as an assistant public defender and, since 1988, as First Assistant Public Defender. (Id. at ¶¶ 2, 20.)

The Defendants in this action are the County of Erie and County Executive Mark DiVecchio, Erie County Public Defender Tony A. Logue, Attorney David Agresti, and John Doe. For purposes of his RICO count, Plaintiff also names as Defendants Erie County Councilman Fiore Leone and Magisterial District Judge Dominick DiPaolo.

Defendant DiVecchio is a former Erie County Council member who ran in the 2005 general election as the Democratic candidate for County Executive. (SAC at ¶ 26.) DiVecchio became the Erie County Executive on or around November 15, 2005 when he was certified as the winner of that office by 117 votes over the Republican challenger. (SAC ¶ 4.) He was sworn into office on January 2, 2006. (Id.)

Defendant Logue became the Public Defender on or around January 2, 2006 after being appointed to that office by Defendant DiVecchio. (Id. at ¶ 7.)

Defendant Agresti is an attorney who supported DiVecchio in his 2005 campaign for County Executive and who served as DiVecchio's attorney relative to election and recount matters in that campaign. (Id. at ¶¶ 9-10.) In November of 2005, Defendant Agresti was appointed by DiVecchio to head up a transition team whose ostensible purpose was to identify and select policymaking and other personnel to serve in the DiVecchio administration. ( ¶¶ 10, 47.)

Defendant Leone is a Democratic member of the Erie County Council and has served on that body for the past thirty-one years. (Id. at ¶ 14.) Defendant DiPaolo was at all relevant times a Magisterial District Judge for the Sixth Ward in Erie. (Id. at ¶ 13.) Both Leone and DiPaolo are long-term Democratic elected officials representing the Sixth Ward of Erie and are supporters of Defendant Logue. (Id. at ¶ 27.)

The 2005 election for Erie County Council was extremely close, with the initial vote showing that the Republican candidate had won by six votes. (SAC ¶ 33.) A recount then ensued in which Defendant DiVecchio was represented by Defendant Agresti. (Id.) The only Election Board Attorney supervising the recount was Defendant Logue, acting in his then-capacity as Solicitor for both the Erie County Council and the Erie County Election Board. (Id. at ¶ 34.) Following the recount, DiVecchio was declared the winner by a narrow margin.*fn2

Prior to the 2005 general election, Defendant DiPaolo and Defendant DiVecchio had been involved in a disagreement whereby DiPaolo freely spoke ill of DiVecchio and had resolved never to speak to DiVecchio again. (SAC ¶ 29.) DiVecchio performed more poorly than expected in the Sixth ward during the general election, and he believed that this was the result of DiPaolo frequently and publicly speaking negatively about him during the campaign. (Id. at ¶¶ 30-31.)

Following DiVecchio's successful election, Defendant Leone arranged a private reconciliation meeting, which was attended by DiVecchio, Logue, Agresti, DiPaolo and Leone. (Id. at ¶¶ 36-37.) At the meeting, DiPaolo expressed his desire that Logue be appointed as Public Defender. (SAC ¶ 38.) Even though DiVecchio had privately planned to appoint Logue to the position anyway, he initially indicated that he would have to think about his decision. (Id.) At the conclusion of the meeting, DiVecchio agreed that he would appoint Logue as Public Defender. (Id. at ¶ 40.) DiVecchio's posturing over the decision in this manner was designed to create the appearance that he was doing Leone and DiPaolo a favor by appointing Logue to the position of Public Defender. (Id. at ¶ 39.)

In November of 2005, Defendant DiVecchio terminated the incumbent Public Defender, Christine Konzel, and appointed Logue as Erie County Public Defender, having declined to search or advertise for candidates for the position. (SAC ¶ 42, 48.) Logue was sworn in on January 2, 2006. (Id. at ¶ 42.)

Defendant Agresti, acting as manager of DiVecchio's transition committee, and Logue then recommended the appointment of James A. Pitonyak to replace Plaintiff A.J. Adams as the First Assistant Public Defender. (SAC ¶ 50.) Plaintiff Adams was terminated, despite his employment with the public defender's office for some 18 years, and despite the fact that he had performed well in that position, had no intention of leaving, and was removable only for cause. (Id.)

Plaintiff did not engage in political activity on behalf of any candidate in the 2005 election. (SAC ¶ 53.) He had not been disciplined by any of his superiors, nor was his work or attitude ever discussed or criticized by the Defendants or their representatives. (Id. at ¶ 54.) Nevertheless, Plaintiff's employment was terminated effective January 13, 2006 by letter dated December 30, 2005. (Id. at ¶ 56.)

In the same manner, fellow assistant public defenders Keith Clelland and Andrew Weinraub -- who, together with Plaintiff, represented the three highest paid attorneys in the trial division of the public defender's office -- were terminated without cause. (SAC ¶¶ 57, 60, 61.) Like Plaintiff, Clelland and Weinraub had never been disciplined by their superiors, were performing satisfactorily, and did not wish to leave their positions. (Id. at ¶¶ 58, 61.) Moreover, none of the Defendants or their representatives had discussed Clelland's or Weinraub's work or attitude with them or criticized their work. (Id. at ¶ 58.)

After terminating Clelland and Weinraub, no search for candidates was made to fill those positions by the usual advertising, posting, and bid procedures. (Id. at ¶ 59.) Upon the termination of Plaintiff Adams, Public Defender Konzel, and fellow assistant public defenders Clelland and Weinraub, those positions became open for replacement by persons politically aligned with Defendants DiVecchio, Agresti, Logue, DiPaolo and Leone. (Id. at ¶ 60.)

DiVecchio also terminated three attorneys employed by the Office of Children and Youth who had not supported his campaign. (SAC ¶ 64.) Defendants made no search for candidates for these openings using the normal posting and bid procedures; instead, DiVecchio appointed his own supporters, including Defendant Agresti, to fill these openings. (Id. at ¶¶ 64-66.)

Similarly, on December 16, 2005, DiVecchio discharged facilities manager Edward Vereb, giving no reason for the discharge. (SAC ΒΆ 67.) Vereb, who had not supported DiVecchio's campaign, was replaced by Michael ...

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