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Erb v. Borough of Catawissa

September 30, 2009


The opinion of the court was delivered by: Judge Vanaskie


This action arises out of Plaintiff Janet Erb's alleged wrongful discharge from her position as Secretary for the Borough of Catawissa. In her Sixteen Count Complaint, she asserts constitutional and state law claims against the Borough of Catawissa, Borough of Catawissa Council Members Edward Rhoades, George Romania, Barbara Reese, Dorothy Linn, Donald Stewart, John Sabol, Linda Kashner, and Borough of Catawissa Mayor Harold Kitchen. Specifically, she claims Defendants violated her First and Fourteenth Amendment rights under the United States Constitution; wrongfully terminated her; committed actual fraud, defamation, invasion of privacy, and false light; intentionally caused her emotional distress; discriminated against her, and discharged her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951, et seq.*fn1

Defendants have moved for partial dismissal of Ms. Erb's claims. (Dkt. Entry 44). For the reasons set forth below, Defendants' Motion will be granted as to Plaintiff's official capacity claims against the individual Defendants (Counts III and V), wrongful termination claim (Count VII), and defamation, invasion of privacy, false light , and intentional infliction of emotional distress claims (Counts IX, X, & XIII). Defendants' Motion will be denied in all other respects.


Janet Erb obtained employment with the Borough of Catawissa on May 4, 1994. (Second Am. Compl., Dkt. Entry 42, at ¶ 20.) It is alleged that she performed her work in a good, professional, and competent manner. (Id. at ¶ 21.)

On April 26, 2007, Defendants Reese and Linn, Members of the Borough Council of Catawissa, allegedly informed Ms. Erb that she would be discharged from her employment if she did not quit. (Id. at ¶ 22.) She was also told that if she resigned, she would provided with certain benefits in the form of a severance package. (Id. at ¶ 27.) Reese and Linn supposedly presented Ms. Erb with a written statement detailing the specific severance benefits to which she was entitled. (Ex. A, Dkt. Entry 2.) It said:

Catawissa Borough Council has become aware of changes in your performance and has unanimously decided to provide you with a retirement severance package, which will include the following:

1. May 4, 2007, will be the last day you are physically in the Borough office. You will continue to be a Catawissa Borough employee until May 31, 2007. From May 4, 2007, through May 31, 2007, you will utilize 17 vacation days and one personal day.

2. Two months severance pay starting June 1, 2007, and continuing through July 31, 2007. The Borough will continue to pay your medical insurance through that period.

3. You will be responsible for payment of medical insurance starting August 1, 2007. You will continue as a retired member of the Borough's medical insurance plan, provided this benefit can be offered without cost to the Borough.

4. It is also understood that this offer is made in good faith and if not accepted your employment will be terminated at a public meeting on May 7, 2007. (Id.)

The Second Amended Complaint alleges that, before offering Ms. Erb this severance package, Defendants Rhoades, Romania, Rees, Linn, Stewart, Sabol, Kashner, and Mayor Kitchen met and agreed to terminate Ms. Erb's employment. (Second Am. Compl, at ¶ 23.) It is further alleged that this decision was never ratified by the Borough Council of Catawissa at a proper meeting open to the public. (Id. at ¶ 25.) Romania, Stewart, Sabol, Rhoades, Kashner, and Kitchen allegedly authorized Reese and Linn to inform Ms. Erb that she would be discharged unless she resigned. (Id. at ¶ 26.) Defendants were allegedly motivated to terminate Ms. Erb in order to create a vacancy in the position of Borough Secretary, which would enable the hiring of Kimberly Rhoades. (Second Am. Compl, Dkt. Entry 42, at ¶ 29.) Kimberly Rhoades is the wife of Defendant Edward Rhoades.*fn2 (Id. at ¶ 30.)

The Second Amended Complaint alleges that Ms. Erb engaged in constitutionally protected conduct in declining to give allegiance to the public officials, political parties, and political factions in power in the Borough of Catawissa.*fn3 (Id. at ¶ 32.) This conduct is purported to be a substantial and motivating factor in the Defendant's adverse employment action. (Id. at ¶ 33.)

Ms. Erb resigned on May 3, 2007. (Second Am. Compl, Dkt. Entry 42, at ¶ 34.) On May 8, 2007, the council members voted at an open meeting to accept Ms. Erb's resignation, but supposedly refused to provide her the benefits of the severance package. (Id. at ¶ 35.) Mayor Kitchen is alleged to have participated with the others in reaching the decision to accept Ms. Erb's resignation while refusing her benefits, in personally directing the action, or at least having knowledge of the scheme and acquiescing to the action. (Id. at ¶ 36.)

It is alleged that the termination of Ms. Erb's employment by Defendants was pursuant to a policy and custom of the Borough of Catawissa because those with the final authority to establish a municipal policy terminated Ms. Erb. (Id. at ¶ 61.) Following the termination of Ms. Erb, the council members voted to hire Kimberly Rhoades as the Borough Secretary. (Id. at ¶ 39.)

The Second Amended Complaint alleges that, subsequent to the meeting on May 8, 2007, Defendants created negative publicity about Ms. Erb in the local newspapers and other media, suggesting that she quit her employment without notice. (Id. at ¶ 43.) The publicity allegedly "created the clear inference that she had abandoned her job without notice, without consideration of her duties as a public officer, without justification, without concern for the community or the taxpayers, and with the implication of some form of wrong doing on her part." (Id. at ¶ 97.) Defendants supposedly knew that such publicity was false. (Id. at ¶ 45.) Ms. Erb claims this caused her great harm, inconvenience, and emotional distress, as well as damaged her reputation. (Id. at ¶ 50.)

Counts I and V of the Second Amended Complaint allege violations of the First and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983 against all Defendants.*fn4 (Second Am. Compl., at pp. 10 & 16.) Specifically, Ms. Erb alleges that her termination was a violation of her constitutionally protected right of speech and association. (Id. at ¶ 64.) Count VI alleges the same violation against the eight individual Defendants, but also claims that the individual Defendants knowingly and maliciously deprived Ms. Erb of her civil rights. (Id. at ¶ 84.)

Counts II, III, and IV allege violations of Procedural Due Process under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983 against all Defendants. (Second Am. Compl., at p. 11.) Defendants are alleged to have disseminated false and defamatory information about Ms. Erb in violation of her protected liberty interest. (Id. at ¶¶ 67-68, 73-74.) It is additionally alleged that the Borough of Catawissa terminated her without a pre-termination hearing. (Id. at ¶¶ 69, 75.)

Count VII alleges a Wrongful Termination claim against the eight individual Defendants under Pennsylvania common law in violation of public policies prescribed in 42 Pa. Cons. Stat. § 8550, 53 Pa. Cons. Stat. § 45101, et seq. ("The Borough Code"), and the Pennsylvania Sunshine Act, 65 Pa. Cons. Stat. § 701, et seq. (Id. at pp. 19-21.) Specifically, it is alleged that the individual Defendants engaged in fraudulent and malicious conduct to deprive Ms. Erb of her employment and reputation without a proper hearing in violation of the public policies of the Commonwealth of Pennsylvania. (Id. at ¶¶ 85-93.)

Count VIII alleges that, in failing to honor the severance package, the eight defendants committed actual fraud. (Id. at ¶¶ 94-95.) Count IX asserts a claim of Defamation against the eight individual Defendants for communications disseminated in the newspapers stating that Ms. Erb abandoned her job. (Id. at p. 23.) Count X asserts claims of false light and invasion of privacy against the eight individual Defendants for the alleged offensive communications about Ms. Erb's resignation. Counts XI and XII allege the Borough of Catawissa violated the ADEA in wilfully, knowingly, and intentionally discriminating against her on account of age and constructively discharging her. (Id. at ¶¶ 106-09, 112-13.) Count XIII asserts a claim of intentional infliction of emotional distress against the eight individual Defendants. (Id. at ¶¶ 114-15.) And finally, Counts XIV, XV, and XVI allege violations of the PHRA for discrimination on account of age and constructive discharge against all Defendants. (Id. at ¶¶ 116-18, 120-24.)


A. Standard of ...

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