Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jenelle Frances Scott, On Behalf of Herself and All v. the Philadelphia Housing Authority

May 11, 2011

JENELLE FRANCES SCOTT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
v.
THE PHILADELPHIA HOUSING AUTHORITY, THE PENNSYLVANIA INSTITUTE OF AFFORDABLE HOUSING PROFESSIONALS, PHA-TENANT SUPPORT SERVICES, INC., CARL GREENE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DIANE ROSENTHAL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, KIRK DORN, : INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, RICHARD ZAPPILE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, ASIA CONEY,INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, MICHAEL LEITHEAD, :INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, CAROLYN CARTER, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, LINDA STALEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, JOHN DOE NUMBERS ONE THROUGH TEN,INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY
DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S.J.

MEMORANDUM

Defendants Philadelphia Housing Authority, Pennsylvania Institute of Affordable Housing Professionals, PHA-Tenant Support Services, Inc., Carl Greene, Diane Rosenthal, Kirk Dorn, Richard Zappile, Asia Coney, Michael Leithead, Carolyn Carter, and Linda Staley (collectively "Defendants") have filed the present Motions to Dismiss the Second Amended Complaint of Plaintiff Jenelle Frances Scott ("Plaintiff") pursuant to Federal Rule of Civil Procedure 12(b)(6). Also pending before the Court is Plaintiff's Motion for Leave to File an Omnibus Reply Brief. For the following reasons, all Motions are granted.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff began working as a clerk typist for Defendant Philadelphia Housing Authority ("PHA") in October 1989. (Sec. Am. Compl. ¶ 2.) In September 2001, she became the administrative assistant to Defendant Greene, who at the time was PHA's Executive Director. (Id.) Plaintiff alleges that shortly after her promotion, "she was compelled to contribute money and gifts to defendant, Greene, for parties that she was required to attend." (Id.) To celebrate Defendant Greene's twelfth anniversary as Executive Director, Defendant Zappile, the PHA Chief of Police, asked Plaintiff and other employees to contribute money for dinner at the Prime Rib. (Id.) Payment was made via cash or check made out to Defendant Zappile. (Id.) Previously, for Greene's 10th Anniversary party, Defendant Zappile sought donations for Defendant PHA-Tenant Support Services, Inc. ("TSSI"), a PHA-affiliated non-profit designed to provide services to assisted housing residents. (Id.) Over $38,000 was raised, but Plaintiff alleges only $21,934 went to TSSI, while the remainder was spent on the party. (Id.)

Plaintiff also alleges that she "was forced to donate a portion of her paycheck" to Defendant Pennsylvania Institute of Affordable Housing Professionals ("PIAHP"), which is a non-profit corporation created by Defendant Greene. (Id. ¶ 3.) Plaintiff and other employees were told by "representatives" of Defendant PHA that "the sole purpose of defendant, PIAHP, was to lobby [the Department of Housing and Urban Development] in an attempt to prevent funding cuts that were forcing defendant, PHA, to lay off employees." (Id.) According to Plaintiff, however, Defendant PHA is prohibited from using federal funds for lobbying activities,and Defendant Greene has not disclosed any lobbying activities since 2002. (Id. ¶¶ 32-34.) Defendant PHA allegedly required its employees to either contribute a portion of their paychecks or make an annual, lump sum contribution to Defendant PIAHP. (Id. ¶ 3.) Plaintiff alleges that Defendant PHA deducted money from her paycheck -- and the paychecks of all other non-union employees -- and diverted it to Defendant PIAHP. (Id. ¶ 36.) These deductions were made from 2006 until September 2010. (Id. ¶ 37.)

On November 17, 2010, Plaintiff filed her Second Amended Complaint on behalf of herself and all others similarly situated. In Count One, Plaintiff seeks injunctive and declaratory relief for civil rights violations committed by all Defendants. (Id. ¶¶ 38-43.) Plaintiff claims that Defendants violated her First, Fifth, and Fourteenth Amendment rights by "unlawfully and improperly collect[ing] monies and fees from the pay check of all nonunion employees under the pretext that the funds would be used for charitable purposes, but instead were improperly converted and used for the benefit of defendants and to promote political activities . . . ." (Id. ¶39.) Plaintiff also alleges that her due process rights were violated when Defendants used the money for their own personal gain and enrichment. (Id. ¶ 40.)

In Count Two, Plaintiff seeks damages for federal civil rights violations from Defendants PHA, PIAHP, and TSSI. (Id. ¶¶ 44-54.) According to Plaintiff, these Defendants allowed the individual Defendants to deduct improperly $2.50 each week from the pay of employees and contractors, (id. ¶ 45), allowed Defendant Greene to profit financially from the "unlawful taking" of Plaintiff's pay, (id. ¶ 49), and allowed Defendants Greene, Rosenthal, Dorn, Coney, Leithead, Carter and Staley to obstruct and interfere with investigations and audits in order to conceal illegal actions. (Id. ¶ 50.) Plaintiff claims that these actions deprived her of her constitutional rights under the First, Fifth, and Fourteenth Amendments and violated 42 U.S.C. § 1983. (Id. ¶ 52.)

In Count Three, Plaintiff alleges that all Defendants violated the Moving to Work Demonstration Program ("MTW Program"), which requires Defendant PHA to report annually its expenditures, and prohibits the use of federal funds for lobbying. (Id. ¶¶ 56-57.) Plaintiff claims that Defendant Greene and "those he conspired with solicited and coerce[d] plaintiff and Class members into making contributions to PIAHP and other nonprofit entities on the pretext that the funds would be used for lobbying efforts in violation" of the MTW Program. (Id. ¶ 59.) As a result the MTW Program violations, Plaintiff alleges that she and fellow class members suffered loss of earnings and employment benefits, and experienced emotional distress. (Id. ¶¶60-61.)

In Count Four, Plaintiff includes supplemental state law claims for conversion, violations of Pennsylvania's Wage Payment and Collection Law, and the "Anti-Macing Statute." (Id. ¶ 64.) Finally, Plaintiff seeks punitive damages in connection with each cause of action cited in the Second Amended Complaint. (Id. ¶ 67.)

On January 17, 2011, Defendants PHA, PIAHP, and Kirk Dorn collectively filed a Motion to Dismiss, and the arguments contained therein were incorporated and adopted via separate Motions to Dismiss filed on the same day by Defendants Coney and TSSI, Defendant Carter, and Defendant Rosenthal. Motions to Dismiss were also filed by Defendant Staley on January 17, 2011, Defendant Zappile on January 17, 2011, Defendant Leithead on January 18, 2011, and Defendant Greene on January 18, 2011. Plaintiff filed an Omnibus Response in Opposition to Defendants' Motions to Dismiss on March 8, 2011, and Replies were filed by Defendants PHA, PIAHP, and Dorn on March 21, 2011, Defendant Greene on March 22, 2011, Defendant Staley on March 22, 2011, Defendant Zappile on March 23, 2011, Defendants Coney and TSSI on March 24, 2011, Defendant Rosenthal on March 24, 2011, and Defendant Carter on March 24, 2011. Plaintiff filed a Motion for Leave to File an Omnibus Reply Brief on March 28, 2011.*fn1

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. FED.R.CIV. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "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. at 555. It emphasized that it would not require a "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In the subsequent case of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court enunciated two fundamental principles applicable to a court's review of a motion to dismiss for failure to state a claim. First, it noted that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Thus, although "[Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Notwithstanding the foregoing, nothing in Twombly or Iqbal has altered some of the fundamental underpinnings of the Rule 12(b)(6) standard of review. Arner v. PGT Trucking, Inc., No. CIV.A.09-0565, 2010 WL 1052953, at *2 (W.D. Pa. Mar. 22, 2010); Spence v. Brownsville Area Sch. Dist., No. CIV.A.08-0626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. FED. R.CIV. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

III. DISCUSSION

Many of the factual and legal issues raised in each Defendant's Motion to Dismiss are interrelated. Therefore, rather than address each Motion individually, the Court discusses the arguments made in those Motions in the context of the relevant claims contained in Plaintiff's Second Amended Complaint.

A. Plaintiff's First Amendment Claim

The United States Supreme Court has held that "[t]he right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all . . . ." W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring). As such, "[g]overnment action that requires stating a particular message favored by the government violates the First Amendment right to refrain from speaking." Miller v. Mitchell, 598 F.3d 139, 151 (3d Cir. 2010) (citing C.N.v. Ridgewood Bd. of Educ., 430 F.3d 159, 187 (3d Cir. 2005)).

While the Supreme Court has found that "expressive conduct is protected under the First Amendment," it has rejected "'the view that an apparent limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.'" Montanye v. Wissahickon Sch. Dist., 218 Fed. Appx. 126, 130 (3d Cir. 2007) (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)). "Rather, to determine whether a particular action or pattern of conduct constitutes speech protected under the First Amendment, we must ask whether 'an attempt to convey a particularized message was present, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.