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Joseph Russo v. City of Philadelphia

May 11, 2011

JOSEPH RUSSO, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS.



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

OPINION

I. INTRODUCTION

On May 22, 2009, Plaintiff Joseph Russo was removed from his appointed position on the Board of Revision of Taxes ("BRT"), a department of the City of Philadelphia. On June 25, 2009, he filed an Emergency Petition for a Special Injunction in the Commonwealth Court of Pennsylvania seeking to be reinstated. Plaintiff asserted that in removing him from his position, Defendants acted under color of state law and deprived him of his Fourteenth Amendment right to due process. The Commonwealth Court denied the Petition. On July 23, 2009, Plaintiff filed another action in the Commonwealth Court again asserting a Fourteenth Amendment violation in removing him from his position at the BRT without due process. By Order dated August 25, 2009, the Commonwealth Court dismissed the case, finding that Plaintiff did not have a property interest in his position on the BRT and therefore was not entitled to the due process protections he sought prior to his termination. This Order was affirmed by the Supreme Court of Pennsylvania on November 17, 2010.

Plaintiff next filed the Complaint in this case pursuant to 42 U.S.C. § 1983. He asserts once again that his removal violated his Fourteenth Amendment right to procedural due process. All Defendants have moved to dismiss the Complaint, asserting that Plaintiff's claims in this matter are duplicative of the claims asserted in the state court actions and are barred by res judicata.

Upon consideration of the submissions of the parties*fn1 and the arguments of counsel at the hearing held on April 11, 2011, and for reasons that follow, the Court will grant the Motions to Dismiss because the claims raised by Plaintiff in this Court are barred by res judicata.

II. FACTUAL BACKGROUND

A. The Parties

Plaintiff is a citizen of Pennsylvania residing in Philadelphia. (Doc. No. 1 ¶ 3.) Defendant City of Philadelphia ("Defendant City") is a municipality of the Commonwealth of Pennsylvania which "established, managed, controlled, directed, and/or operated the Board of Revision Taxes, a city department." (Id. ¶ 4.) Defendant Pamela Pryor Dembe ("Defendant Dembe") is employed as President Judge of the Board of Judges of Philadelphia County. (Id. ¶¶ 6-7.) Defendant Amy L. Kurland ("Defendant Kurland") is an individual employed by the Office of the Inspector General of the City of Philadelphia. (Id. ¶ 9.) Plaintiff brings this action against Defendants Dembe and Kurland in both their "individual capacities as well as their official capacities as authorized policymakers and decisionmakers of the City of Philadelphia and the Board of Revision of Taxes." (Id. at ¶10).

B. Plaintiff's Termination From the Board of Revision of Taxes

In 2004, Plaintiff was appointed by the Board of Judges to the Board of Revision of Taxes ("BRT") for a six-year term pursuant to 72 P.S. § 5341.1. (Id. ¶¶ 17-18.) The BRT is a Philadelphia agency that is responsible for valuing all real property within the City of Philadelphia. (Id. ¶ 12.) The BRT's property valuations are the basis for the City's property tax assessments and collections. (Id.)

On November 5, 2008, during the course of Plaintiff's six-year term, the City of Philadelphia Office of Inspector General ("OIG") began an investigation into Plaintiff's conduct while sitting as a member of the BRT. (Id. ¶ 20.) During the course of the investigation, the OIG made a request to interview Plaintiff. He agreed to be questioned and on May 8, 2009, Plaintiff "attempted" to submit to the interview. (Id. ¶¶ 21, 22.) Plaintiff alleges that during the questioning the OIG investigator posed questions beyond the scope of the investigation and authority of the agency. (Id. ¶ 23.) On that basis, Plaintiff was advised by counsel to stop answering the questions. (Id. ¶ 24.)

The OIG subsequently tendered a report recommending Plaintiff's dismissal. (Id. ¶ 26.) Plaintiff alleges that the OIG report was based primarily on his testimony at the trial of Pennsylvania State Senator Vincent Fumo. (Id. ¶ 26.) The report states that Plaintiff failed to disclose his involvement with various political campaigns on city and state ethics forms, and accuses Plaintiff of receiving significant reimbursement for work he performed on these political campaigns. (Id. ¶¶ 29-30.) Plaintiff avers that he never engaged in any work on the political campaigns, nor did he retain any money in conjunction with the campaigns.*fn2 (Id. ¶¶ 29-30.) On May, 22, 2009, Defendant Dembe issued an order removing Plaintiff from his appointed position on the BRT. (Id. ¶ 32.) No formal or informal hearing was held and no formal opinion was issued in support of Plaintiff's dismissal. (Id. ¶ 33.) Plaintiff alleges that the order of removal was based on the OIG recommendation and a letter from Philadelphia Mayor Michael Nutter. (Id. ¶ 32.)

C. State Court Proceedings

Plaintiff and Defendants have met twice before in state court. As outlined above, on June 25, 2009, Plaintiff filed an Emergency Petition for a Special Injunction and a complaint in equity in the Commonwealth Court of Pennsylvania. (Doc. No. 6 at 2, Doc. No. 8 at 2). In both the Emergency Petition and the complaint, Plaintiff claimed that his "termination was improper and he was not provided his due process rights to be heard on this issue." (Doc. No. 6, Ex. "A" ¶ 22; "Emergency Petition" Doc. No. 8, Ex. "A" ¶ 22; "Commonwealth Court Complaint" Doc. No. 8, Ex. "B" ¶¶ 22-23.) The Commonwealth Court denied Plaintiff's request for an injunction.

Plaintiff then filed another complaint in the Commonwealth Court of Pennsylvania. (Doc. No. 6 at 2, Doc. No. 8 at 2). Plaintiff again raised the alleged violation of his due process rights based upon his removal from the BRT. (Doc. No. 6 at 2, Doc. No. 8 at 2.) In an Opinion and Order dated August 25, 2009, the Commonwealth Court dismissed the complaint on the ground that Plaintiff did not have a property interest in his position protected by the due process clause. (Doc. No. 6, Ex. "E;" Doc. No. 8, Ex. "E.")*fn3 Plaintiff appealed this Order to the Supreme Court of Pennsylvania, which affirmed it on November 17, 2010. (Doc. No. 6 at 3.)

D. Federal Court Proceeding

On January 31, 2011, Plaintiff filed the Complaint in this Court. (Doc. No. 1.) Plaintiff avers that he has a property interest in his employment protected by the Fourteenth Amendment to the United States Constitution and that his termination from the BRT without a pre-termination hearing deprived him of Due Process of Law in violation of the Fourteenth Amendment. (Id. at ¶ 34-35.) On February 10, 2011, Defendant Dembe filed a Motion to Dismiss. (Doc. No. 6.) The following day, Defendants City and Kurland also filed a Motion to Dismiss. (Doc. No. 8.) The Court held a hearing on the Motions on April 11, 2011.

III. LEGAL STANDARD

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) has been the subject of recent examination, culminating with the Supreme Court's Opinion in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). After Iqbal it is clear that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., No. 10-1294, 2010 WL 5071779 (3d Cir. Dec. 14, 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss. 2010 WL 5071779, at *4; see also Fowler v.UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (applying the principles of Iqbal and articulating the 12(b)(6) analysis as a two-part test).

"First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'" Santiago v. Warminster Twp., 2010 WL 5071779, at *4 (quoting Iqbal, 129 S. Ct. at 1947-50).

With respect to what a court may consider in determining the preclusive effect of a judgment under a Fed. R. Civ. P. 12(b)(6) motion to dismiss,*fn4 the Third Circuit has explained:

In reviewing a Rule 12(b)(6) motion, it is well-established that a court should "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). In the context of deciding a Rule 12(b)(6) motion that raises issue preclusion concerns, and where a plaintiff has not included the existence or substance of the prior adjudications in the body of, or attachments to, its complaint, it is axiomatic that a court must still consider the prior adjudication in order to determine whether issue preclusion bars that plaintiff's claims. Thus, we have held that a prior judicial opinion constitutes a public record of which a court may take judicial notice. Id. We have also held, however, that a court may do so on a motion to dismiss only to establish the existence of the ...


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