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A.J. Adams v. the County of Erie

September 30, 2011


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


Plaintiff A.J. Adams has brought this civil rights action against the County of Erie, Pennsylvania, Mark A. DiVecchio, Anthony A. Logue, and David C. Agresti, claiming that his federal constitutional rights were violated when he was unlawfully terminated from his position as the County‟s First Assistant Public Defender following DiVecchio‟s election to the office of County Executive. This Court‟s subject matter jurisdiction is premised upon 28 U.S.C. § 1331 and 1343(a).

Presently pending before the Court is the Defendants‟ motion for summary judgment. For the reasons discussed below, the motion will be granted.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When adjudicating a motion for summary judgment under Fed. R. Civ. P. 56, we must "view all evidence and draw all inferences in the light most favorable to the non-moving party." Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no "genuine issue for trial.‟" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Consistent with this standard of review, we set forth the relevant background facts. The following facts either are undisputed or, where disputed, will be construed in the light most favorable to Adams.


Adams is an attorney and a member of the Pennsylvania Bar who served in the Erie County Public Defender‟s Office from 1987 through January 13, 2006, when his employment was terminated. In June of 1988 he became the First Assistant Public Defender and remained in that capacity until the time of his discharge.

During his tenure in the Public Defender‟s office, Adams served under both Democratic and Republican County Executives and several different Chief Public Defenders, mostly without incident. Brad Foulk, who was the Erie County District Attorney during the time period giving rise to this action, opined that Adams is "a very competent, good lawyer." (Foulk Depo. [57-11] at 22.)*fn1 At all times relevant to this action, Adams was, and still is, a registered Democrat.

Defendant DiVecchio is a member of the Democratic Party who, in November of 2005, was elected to the office of Erie County Executive following a close election in which DiVecchio narrowly defeated his Republican challenger, Dale McBrier. DiVecchio assumed office as County Executive on January 2, 2006, replacing Republican Rick Schenker. Defendants Logue and Agresti are both Erie County attorneys who supported the DiVecchio campaign in various capacities and who later went on to accept employment within the county government under DiVecchio‟s administration.

Initially, the general election results showed McBrier winning by only six votes. A recount was then held, after which the results showed DiVecchio winning the election by 121 votes. The election board was comprised of those members of the Erie County Council who were not running for office. Logue, a Democrat who was then employed as the Solicitor for the Erie County Council, was present for the recount in his (dual) capacity as solicitor for the County Election Board. Also present during the recount was Agresti, a registered Republican who had supported DiVecchio during the general election and who was then serving as DiVecchio‟s private legal counsel relative to election and recount matters.

a) Logue's Appointment as Chief Public Defender and Adams's Termination Following the 2005 election, Logue was appointed by DiVecchio to the office of Chief Public Defender for Erie County, replacing the existing Chief Public Defender, Christine Konzel. Logue had long desired to become the Chief Public Defendant for Erie County, and he admits to having expressed this desire to DiVecchio even prior to the 2005 primary election.

In November of 2005, after prevailing in the general election recount, DiVecchio informed Logue that he was going to appoint him Chief Public Defender. According to DiVecchio, this occurred following a luncheon which the two attended at the Oakwood Cafe, the details of which will be discussed in more detail infra.

Meanwhile, Logue had decided that, if he were appointed as Chief Public Defender, he would select Attorney Jim Pitonyak as the First Assistant Public Defender, a move that would necessarily displace Adams. Pitonyak had first met Logue when Pitonyak became a newly admitted attorney and Logue was a county probation officer. Logue worked in the same private law practice with Pitonyak for a year or two in the late 1980s or early 1990s. Pitonyak and Logue had also worked on civil and criminal cases as co-counsel. In 1992, Pitonyak had recommended Logue to Michael Palmissano, then the Chief Public Defender, for a position as a part-time assistant public defender. Thus, sometime in or around late November, after DiVecchio had won the election and had offered Logue the job of Chief Public Defender, Logue approached Pitonyak and offered to make him the First Assistant Public Defender. (Pitonyak Depo. [57-6] at 48, 52.)

Notwithstanding his intention to make Pitonyak the First Assistant Public Defender, Logue contends that it was also his intention to keep Adams in the office, albeit at a lower position. Logue further claims that he had a conversation with Adams in the county courthouse in late November or early December 2005, wherein he expressed his intention to keep Adams on within the office as a rank-and-file full-time assistant public defender. According to Logue, Adams used profanity toward him and stated that he would never agree to work for Logue.

Adams denies that this conversation ever occurred and claims, in fact, that Logue did not speak to him even once during the entire four years of the Schenker Administration. In Adams‟s words,

[w]hat was going on for a significant period of years is Mr. Logue‟s desire to be the chief public defender. He had even crossed party lines to support Mr. Shanker [sic], the [R]epublican, because he believed that he had a deal cut where if he gave Mr. Shanker [sic] the [R]epublican his

[D]emocratic support that he would, in fact, become the chief public defender.

Unfortunately, when that decision was made, Mr. Shanker [sic] decided to go continuing with Ms. Konzel who was appointed initially by Judy Lynch who[m] Mr. Shanker [sic] defeated in the county executive race [of 2001].

Since that time or even perhaps prior to that time, because Mr. Logue saw me as the logical chief public defender because I had been working as a public defender longer, I had been a lawyer a lot longer, I have a much better legal reputation than he does, that, in fact, he saw me as the number one person that is in his way of obtaining a job that he had since gotten and subsequently altered to his financial betterment.

He‟s not only eliminating a competitor, he is replacing the competitor with someone [i.e, Pitonyak] that he has a remarkably close personal relationship with. (Adams Depo. [62-2] at 256-58.)

In any event, by correspondence dated December 30, 2005, Adams was fired, along with two other full-time assistant public defenders -- Andrew Weinraub and Keith Clelland. Adams‟s termination letter, which was drafted by Agresti and signed by both Logue and DiVecchio, did not give any particular reason for his firing but instead stated (in relevant part) as follows:

Dear Atty. Adams,

Please allow this letter to inform you that your service to the county, as 1st Assistant Public Defender, will not be needed after Friday, January 13, 2006. While on County Council for the past four years, I have worked with the Public Defender‟s Office on many occasions. Your service has been greatly appreciated.


On behalf of me, the incoming administration, and the citizens of Erie County, thank you for your dedication and service. I wish you the very best in your future endeavors. . (Adams Depo. Ex. 17,Doc. No. 62-5 at p. 18.) Among the new assistant public defenders hired by Logue and DiVecchio were Ian Murray, a longtime local Democratic figure, and John Moore, an attorney who had rented office space in the Agresti family‟s law firm.

b) The Alleged "Macing" of Adams by Laurie Rogan

On two separate occasions in or around September and December of 2005, Adams was approached by Laurie Rogan, an investigator in the Public Defender‟s office who was also serving as the Treasurer for one of DiVecchio‟s fund-raising committees. According to Adams, he was asked by Rogan on these occasions to buy tickets to fundraising events benefitting the DiVecchio campaign. Privately, Adams was reluctant to support DiVecchio and considered Rogan‟s request to be a "macing" -- a term which Adams defines as "the practice of pressuring government employees to contribute to political campaigns." (Pl.‟s Statement of Material Facts [61] at ¶ 60, p. 10.)

Nevertheless, Adams did purchase the tickets. On September 24, 2005, Adams wrote a check in the amount of $50 toward purchasing a ticket to an outdoor breakfast. On December 16, 2005, Adams wrote a check in the amount of $100 for a ticket to DiVecchio‟s inaugural ball. Adams did not attend either event.

Despite feeling that he was being "maced," Adams did not object either to Rogan or anyone else about making the contributions, because he felt it would not be in his interest to be perceived as unsupportive of DiVecchio. Adams was close to his 20-year mark as a county employee, a milestone which would have entitled him to a full pension upon retirement. He states that, by making his campaign contribution, "I was hoping I was buying enough time so that I could at least get my 20 years of service in so that I would be able to have a full pension if, in fact, the time came when I got terminated." (Adams Depo. [63-2] at p. 330.) In order to document this perceived macing, however, Adams made the checks out to Rogan personally rather than writing them to DiVecchio‟s campaign committee.

c) Agresti and the Formation of a Transition Team

Following DiVecchio‟s success in the general election, DiVecchio approached Agresti about serving on, and helping to assemble, a transition team. Agresti contacted Foulk (then the District Attorney of Erie County and a fellow Republican) and local businessman Owen McCormick about forming the team. A number of other individuals active in the local community were also asked to be on the transition team, including Joyce Savocchio, the former Mayor of the City of Erie, and Wally Knox, a local attorney and former city solicitor.

Of particular concern to the DiVecchio Administration was the need to fill the positions of County Solicitor, Personnel Director, and Finance Director. The transition team assisted in recommending individuals who might be suitable candidates for these positions. Soon after joining the transition team, Wally Knox assumed the job of County Solicitor. Local attorney Larry Meredith ultimately became Personnel Director after the original appointee had a sudden change of heart and declined the position. An individual by the name of Tom Lyons, who had served as Finance Director under the Schenker Administration, was initially kept on in that position but was replaced by a young woman named Stephanie Freeman.

In addition to co-chairing the transition team, Agresti was appointed by DiVecchio as an assistant solicitor for the Erie County Office of Children and Youth. Ines Massella, an assistant public defender and chair of the local Women‟s Democratic Caucus, was selected by DiVecchio to serve as the chief solicitor for OCY. In the course of these personnel changes, Attorneys Michael Cauley, Ken Zak, and Catherine Allgeier -- all of whom had worked in the Office of Children and Youth under the Schenker Administration -- were terminated from their employment.

d) Adams's "Pay-to-Play" Theory

Adams claims that these personnel changes, including his own replacement by Pitonyak as First Assistant Public Defender, were part of a larger pattern of a "pay-to-play" scheme whereby individuals holding non-elected, non-union jobs who failed to support the DiVecchio campaign were terminated and individuals who did support the DiVecchio campaign were awarded those jobs. More specifically, Adams contends that those individuals who contributed $500 dollars or more were generally allowed to keep their jobs or were appointed to open positions, whereas individuals who contributed less, or nothing at all, were denied employment or were terminated.

As support for this theory, Adams asks this Court to consider the alleged "macing" he endured and the various county jobs which were turned over to new employees in the public defender‟s office, the Office of Children and Youth, and other departments as well. Adams posits that those individuals fired from their jobs were performing their jobs well and that the terminations were not "for cause" but for political reasons. Further, Adams contends that the normal process of advertising open positions was not followed with respect to the job openings created by the incoming DiVecchio administration; instead, he claims, the open positions were summarily filled by DiVecchio supporters as a reward for their political allegiance.

As additional support for his theory, Adams points to the affidavit of State Police Trooper Jim Brown, who had a professional encounter with Agresti in the county courthouse sometime in February or March of 2006. During this encounter, Trooper Brown referenced the firings of Adams and Weinraub and inquired, "What‟s up with that?" (Affid. of Jim Brown [65-5] at ¶ 8.) According to Brown, Agresti responded in a serious tone and said something to the effect, "Those guys should have known better. You give $500.00 to each campaign and cover your bases." (Id. at ¶ 9.)

Adams further contends that Agresti made statements to Adams‟s counsel during the early stages of this litigation, when it was not yet clear whether (the original) defense counsel would be authorized to accept service on behalf of Agresti. According to Adams‟ attorney, Agresti expressed irritation at the fact that the county‟s insurer had not yet agreed to defend him, stating "Don‟t they realize all the additional defendants there should be and I would add?" (Affid. of William Taggart [65-1] at ¶ 10.)

Adams also relies on statements made by DiVecchio‟s successor, Barry Grossman, who became the county executive following the November 2009 election. Adams asserts that Grossman ran on a promise to, among other things, end political cronyism and later informed local news agencies that his greatest achievement during his first 100 days as county executive was ending the use of cronyism in appointing county officials. According to Adams, this statement by Grossman is an "admission" that is binding upon the County in this action. Adams further posits that Grossman, an attorney and allegedly a scholar in the area of constitutional law, is qualified to express an "expert" opinion as to whether cronyism took place in the removal of himself and other county employees under the DiVecchio Administration.

Based on the foregoing, Adams has asserted that his federal civil rights were violated -- specifically, that his firing was premised upon his lack of political activity in violation of the First Amendment to the U.S. Constitution. While Adams initially asserted other causes of action premised on the alleged violation of his constitutional rights and/or violations of Pennsylvania law, these claims have all essentially been withdrawn or abandoned.*fn2 Accordingly, we evaluate the Defendants‟ pending motion for summary judgment insofar as it relates to the sole remaining claim in this case.


Plaintiff‟s only claim against the named Defendants is brought under 42 U.S.C. §1983, which provides a cause of action as against:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.

This statute "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." City of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n. 9 (1999). To state a viable § 1983 claim, a plaintiff must establish: (1) that the alleged wrongful conduct was committed by a person acting under color of state law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc).

It is also well established that each of the individuals named as Defendants must be shown to have had personal involvement in the alleged misconduct in order for them to be held liable under § 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior."). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Id.

With respect to the "color of state law" requirement, there is no real dispute by the Defendants that Logue and DiVecchio were state actors insofar as their conduct in ending Adams‟s employment is concerned. On the other hand, there is a dispute as to whether Agresti can properly be considered a state actor for purposes of this lawsuit. For reasons which are discussed in more detail below, we find that Agresti cannot be considered a state actor and, moreover, there is insufficient evidence to support an inference of personal involvement on his part relative to Adams‟s termination. Therefore, §1983 liability cannot be established on the part of Agresti based on this record.

With respect to the second requirement -- i.e., establishing a violation of a federally secured right or privilege, Adams contends that he was terminated from his position as First Assistant Public Defender in retaliation for exercising his right under the First Amendment to refrain from supporting the DiVecchio campaign by monetary contributions or otherwise. Specifically, he claims that he was performing his job well and was discharged without cause so that DiVecchio and Logue could provide a patronage position to Pitonyak, who had supported the DiVecchio campaign.

In Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265 (3d Cir. 2007), the Third Circuit Court of Appeals held that the First Amendment protects politically neutral or apolitical government employees from political patronage discrimination. 490 F.3d at 276. The court also set forth the following three-part test for establishing such a claim. First, to make out a prima facie case, the plaintiff must show that: (1) he/she was employed at a public agency in a position that does not require political affiliation (i.e., a non-policymaking position), (2) he/she was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or motivating factor in the government's employment decision. 490 F.3d at 271 (citing Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997)). Once the plaintiff makes this demonstration, the defendant employer may "avoid a finding of liability by proving by a preponderance of the evidence that the same employment action would have been taken even in the absence of the protected activity." Id. (citations omitted). In deciding whether the plaintiff has established a prima facie case at the summary judgment stage, we must draw all reasonable factual inferences in the plaintiff‟s favor. Id. at 272.

Here, the Defendants have challenged Adams‟ proof relative to all three prongs of his prima facie case. First, Defendants dispute that the position of First Assistant Public Defender is a non-policymaking position. While denying that Adams‟s political affiliation was an actual motivating factor in his firing, the Defendants nevertheless argue that this type of consideration would have been perfectly ...

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