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Breslin v. Township

August 18, 2010

CHARLES BRESLIN, PAUL CUNNINGHAM, AND PHILLIP THOMPSON, PLAINTIFFS,
v.
DICKINSON TOWNSHIP, RAYMOND JONES, ALLYN PERKINS, DANIEL WYRICK, ANTHONY ZIZZI, RONALD REEDER, AND EDWARD SCHORPP, DEFENDANTS



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court

(Chief Judge Kane)

MEMORANDUM

Before the Court are two motions to dismiss the amended complaint, one brought by Defendant Edward Schorpp (Doc. No. 41) and the other by Defendants Dickinson Township, Raymond Jones, Allyn Perkins, Daniel Wyrick, Anthony Zizzi, and Ronald Reeder*fn1 (hereinafter collectively "Township Defendants") (Doc. No. 39). Because Defendants' arguments overlap, the Court will analyze the motions in tandem. Defendants argue that all claims should be dismissed as facially insufficient, barred by the statute of limitations, or barred by qualified immunity. Oral argument on the motions was held July 16, 2010. For the reasons that follow, the motions will be granted in part and denied in part.

I. BACKGROUND*fn2

Defendant Edward Schorpp is and has been a Township Solicitor for Dickinson Township ("the Township") since January 2006. (Doc. No. 36 ¶ 15.) Defendants Daniel Wyrick, Raymond Jones, and Allyn Perkins are Township Supervisors. (Id. ¶¶ 14-15, 18.) Defendant Anthony Zizzi is an elected Township Auditor. (Id. ¶ 72.) Plaintiffs Charles Breslin, Paul Cunningham, and Phillip Thompson are residents of the Township concerned about the affairs and proper administration of the Township. (Id. ¶¶ 35, 42, 44, 68.) In a sweeping 33-page complaint littered with scarcely-organized facts, Plaintiffs claim that they engaged in conduct that sought to correct public corruption in Dickinson Township. (Id. ¶ 1.) Plaintiffs implicate named Defendants and others in abuses related to their official duties spanning a course of years.

Plaintiffs allege that they first became concerned about impropriety in the administration of Township affairs in 2005 when Defendants Schorpp, Wyrick, Jones, and Zizzi allegedly conspired to thwart Supervisor Ginter's bid for re-election as Township Supervisor. (Id. ¶¶ 26-28.) Ginter is, however, not a party to this suit, and Defendants' actions against him do not form the basis of any claims in the amended complaint. Rather, Defendants' involvement with Ginter serves as background for Plaintiffs' initial investigation and involvement into Township records and affairs. (Id. ¶¶ 41, 44, 50, 54, 55.)

On or about February 2006, Plaintiff Breslin organized a citizen's group that he hoped would rally enough support to defeat a proposal to build a warehouse in the Township. (Doc. No. 1 ¶¶ 34-35.) Defendant Wyrick promised to vote to deny the warehouse proposal if Breslin garnered enough citizen support. (Id. ¶ 36.) Despite Wyrick's promise, on July 28, 2006, Schorpp attempted to reach a settlement agreement between the citizen's group and the warehouse developer that would permit passage of the warehouse plan. (Id.) In August 2006, Schorpp accused Breslin of making a "personal attack" on him and forbid Breslin from contacting him further. (Id. ¶ 37.) Wyrick asked Breslin not to publicize Schorpp's actions regarding the warehouse plan. (Id. ¶ 38.) The outcome of the warehouse proposal and context and content of Schorpp's accusation are not stated in the complaint.

In January 2007, Plaintiffs all became concerned that Schorpp was improperly using Township funds and improperly disclosing personnel records to an outside law firm. (Id. ¶ 42.) Specifically, Plaintiffs discovered that "a Pittsburgh law firm" not identified in the complaint had billed the Township for personnel matters at the behest of Schorpp in December 2005, during which time Schorpp was not Township Solicitor.*fn3 (Id.) To ascertain the details, Plaintiffs requested a copy of the December 2005 billing record and other Township documents pursuant to the Pennsylvania Right to Know law. (Id. ¶ 45.) Schorpp informed the Township Supervisors that the Township "had no duty to make such records available." (Id.) Through multiple document requests, Plaintiffs eventually received many of the requested documents, but they never received the December 2005 bill indicating whether Schorpp had improperly used Township funds to pay the Pittsburgh law firm. (Id. ¶¶ 46, 57.) Thompson continued to seek the missing billing statement through public information requests, letters, and a meeting with Jones. (Id. ¶¶ 57-60.)

In March 2007, Schorpp allegedly threatened Thompson with suit because Thompson publically disclosed, or threatened to disclose, Schorpp's social security number. (Id. ¶ 51.) Thompson had acquired Schorpp's social security number from one of the documents received in a public records request. (Id. ¶ 52.)

On March 5, 2007, Plaintiffs attended a public Township meeting. (Id. ¶ 53.) At the meeting, they questioned Township Supervisors about the termination of Township employees, particularly Supervisor Ginter's supporters who had been terminated after Ginter lost his re-election bid in 2005. (Id. ¶¶ 27, 29, 32-33, 50, 53.) At a March 19, 2007, Township meeting, Plaintiff Thompson asked "who authorized the hiring of the Pittsburgh law firm, and . . . [w]hat was the purpose behind forcing Ginter's resignation . . . ." (Id. ¶ 54.) Schorpp responded by accusing Thompson of impersonating a federal officer, declaring him out-of-order, and ordering him to return to his seat. (Id. ¶ 55.) Plaintiffs allege that the minutes of both March meetings were altered by unidentified Township officials. (Id. ¶ 56.)

In November 2007, Plaintiffs learned of, and began to inquire about, an "improper transfer of large amounts of money from account to account, by unauthorized persons in the Township." (Id. ¶ 61.) Plaintiffs were alerted to the alleged misconduct when the then-presiding Township Manager, unnamed in the complaint, suggested that an audit of the Township's finances had uncovered "irregularities" in the handling of Township funds. (Id. ¶ 64.) These irregularities included the transfer and liquidation of Township investment securities totaling $625,000, costing the taxpayers approximately $15,000. (Id. ¶¶ 64-66.) Though Zizzi publicly reported that he investigated the irregularities and found that most of the money had been recovered, Plaintiffs challenged these findings. (Id. ¶ 73.)

Breslin challenged Zizzi's investigation on the basis that Zizzi, as campaign manager for three Township Supervisors, had a conflict of interest in the investigation. Zizzi had also failed to follow a state quorum law requiring that two auditors agree prior to undertaking any investigation. (Id. ¶¶ 71-74.) Cunningham, too, "complained . . . verbally and in writing" about Wyrick's role in the fund-transfer issue and other "alleged abuse of services." (Id. ¶ 61.)

In January 2008, Thompson requested audit-related information but was denied access to such information. (Id. ¶ 84.) Breslin made three additional requests for copies of public documents and information pertaining to the audit reports between May and October 2008, but was also denied access. (Id. ¶ 83.) After placing his third request for the audit documents, Breslin received a "sewerage inspection letter" falsely indicating that his septic system was not in compliance with municipal codes. (Id.) Plaintiffs believe that they did not receive the requested documents because Schorpp advised the Township not to disclose the information. (Id. ¶ 84.) The audit report was eventually disclosed in November 2008. (Id. ¶ 99.)

On October 21, 2008, Breslin read a statement at a public meeting. (Id. ¶¶ 77, 80.) In the statement, Breslin accused the Township Supervisors and Auditors of "failing to do their job." (Id. ¶ 78.) He also called for Schorpp's resignation. (Id.) Plaintiffs allege that Breslin was "supported in the aforementioned activities" by Cunningham and Thompson, though Plaintiffs fail to specify whether Cunningham and Thompson were active in their support or whether they simply agreed with Breslin's action. (Id. ¶ 80.) Ronald Reeder, Township Manager, responded to this statement by placing a "heated and intimidating phone call" to Breslin's lawyer the following day. (Id.) Breslin then filed a private criminal complaint against Defendant Zizzi, Elizabeth Checchia, and Mary Lehman*fn4 in Cumberland County District Court. (Id. ¶ 79.)

At a public meeting in November 2008, the Board of Supervisors labeled Plaintiffs "'malcontents' in both written and oral statements" and accused Plaintiffs of making "personal attacks" against Township officials. (Id. ¶¶ 81, 82, 97.) On November 17, 2008, Jones, speaking in his capacity as Chairman of the Board of Supervisors, again labeled Plaintiffs "malcontents" and made "a number of totally baseless" accusations against them. (Id. ¶ 97.) The Board of Supervisors then enacted a ban on raising historical issues during Township meetings. (Id. ¶ 98.)

At a Township meeting on December 8, 2008, Jones prevented Thompson from speaking on historical issues, citing the recently-enacted ban on raising historical issues at meetings. (Id. ¶ 103.) Only Plaintiffs were prevented from speaking. (Id. ¶ 104.) Wyrick read a statement "raising questions of character, integrity and motive on the plaintiffs' part." (Id. ¶ 100.) The statement renewed assertions made earlier by Schorpp: that Plaintiff Thompson had impersonated a federal officer. (Id. ¶ 102.) Wyrick also asserted that Thompson had threatened Wyrick's family and had threatened to destroy Wyrick personally and professionally. (Id.) Additionally, Wyrick questioned "Breslin's motives regarding his involvement in Township matters." (Id.) After the meeting, Plaintiffs requested a copy of Wyrick's statement using the Right to Know law. (Id. ¶ 100.) Though they were initially denied access, the statement was later disclosed. (Id. ¶ 101.)

In March 2009, Thompson made another request under the Right to Know law for information related to legal services, which Schorpp characterized as "disruptive" and an unreasonable burden on Township business. (Id. ¶ 111.) Thompson appealed the Township's non-disclosure decision to the Pennsylvania Office of Open Records, and he won. (Id.)

In June 2009, a new resolution was passed regulating citizen input at public meetings because the Township Solicitors believed there had been some "abusers" of the public input process. (Id. ¶ 105.) At the July 6, 2009, Township meeting, Thompson publicly inquired about this new resolution, asking precisely who was abusing the public input process. (Id.) Jones, supported by Perkins and Schorpp, declared Thompson "out of order" for this inquiry and prevented him from speaking. (Id. ¶¶ 105-07.) On July 17, 2009, Plaintiffs filed the pending action against Defendants. Defendant have, nonetheless, continued to deny Plaintiffs speaking opportunities at Township meetings.

At some point after July 17, 2009, Defendants conspired to conduct a "write-in campaign to install the plaintiffs as Dickinson Township Auditors against their will." (Id. ¶ 119.) Plaintiffs allege that the campaign was designed to harass them and to create a conflict of interest, forcing them to abandon this lawsuit against Defendants and the Township.

Plaintiffs allege that these facts constitute unlawful retaliation under the First Amendment, unlawful prohibitions on speech under the First Amendment, and denial of the right to equal protection of the laws under the Fourteenth Amendment, all pursuant to 42 U.S.C. § 1983. Plaintiffs also allege a state law defamation claim against Defendants.

II. STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief. . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips v. County of Allegheny, 515 F.3d 224, ...


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