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The Pennsylvania State Troopers Association, Bruce v. Frank E Pawlowski

September 30, 2011

THE PENNSYLVANIA STATE TROOPERS ASSOCIATION, BRUCE A. EDWARDS, JOSEPH E. SARKIS, JOSEPH M. PLANT, GERALD E. WILLIAMS, JR., DAVID M. BOVA, AND JAMES A. SEAMON,
PLAINTIFFS
v.
FRANK E PAWLOWSKI, INDIVIDUALLY AND AS COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, JOHN R. BROWN, INDIVIDUALLY AND AS DEPUTY COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, AND JEFFREY B. MILLER, INDIVIDUALLY AND AS COMMISSIONER OF THE PENNSYLVANIA STATE POLICE, DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court is Defendants' motion to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 29.) Following a stay of this matter pending the United States Supreme Court's resolution of Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011), and supplemental briefing in light of that opinion, Defendants' motion is now ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion to dismiss in part.

I. BACKGROUND

A. Factual Background

This case arises from a conflict between the Pennsylvania State Troopers Association and the leadership of the Pennsylvania State Police. Plaintiffs are all members of the PSP and hold leadership positions within the PSTA.*fn1

The PSTA had been party to a collective bargaining agreement with the Commonwealth of Pennsylvania for over thirty years. (Doc. No. 28 ¶ 17.) On June 30, 2008, the CBA expired and the parties to the CBA proceeded to binding Act 111 interest arbitration. (Id. ¶ 24.) Under the terms of the CBA, the parties agreed to, and in fact established, a grievance process for the enlisted members of the PSP. (Id.) The grievance process called for the filing of a formal grievance, which the PSTA Grievance Committee could ultimately submit to an arbitrator. (Id.) Through this procedure approximately 200 grievances are processed annually. (Id. ¶ 18.) Plaintiffs allege that since 2007 Defendants have engaged in retaliation against Plaintiffs in response to their decisions regarding the presentation of grievances filed by members of the PSTA as well as for a variety of individual grievances and actions. For ease of understanding, the Court will outline any relevant facts as they relate to each individual Plaintiff when reviewing the merits of their claims.

B. Procedural History

Plaintiffs filed suit in this Court on September 10, 2009. (Doc. No. 1.) In their complaint, Plaintiffs asserted fourteen claims against Defendants including: (1) five First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983 against Defendants in their individual capacities; (2) five First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983 against Defendants in their official capacities; (3) three claims brought pursuant to the Pennsylvania Whistleblower's Act, 43 P.S. § 1421, against Pawlowski and Brown in their individual capacities; and (4) one First Amendment retaliation claim brought pursuant to 42 U.S.C. § 1983 raised on behalf of the Pennsylvania State Troopers Association against Defendants in their official capacities. (Id.)

Defendants responded with a motion to dismiss pursuant to Rule 12(b)(6), or in the alternative for a more definite statement pursuant to Rule 12(e). (Doc. No. 13.) On June 16, 2010, following briefing and oral argument, the Court granted in part and denied in part Defendants' motion. (Doc. No. 27.) Specifically, the Court dismissed claims by Plaintiff Edwards, dismissed all claims brought pursuant to the Pennsylvania Whistleblower Law, and dismissed Defendant Miller from Count XIV. (Id. at 19.) The Court further ordered Plaintiffs to file an amended complaint to clarify which activities they allege merit First Amendment protection and motivated Defendants' retaliatory actions. (Id. at 13.) The Court further directed Plaintiffs to provide more factual allegations regarding all complaints outside the official CBA grievance process that they believe should be characterized as petitions. (Id.)

On July 15, 2010, Plaintiffs filed an amended complaint. (Doc. No. 28.) Defendants again moved to dismiss for failure to state a claim. (Doc. No. 29.) While that motion was pending, the United States Supreme Court granted certiorari in the matter of Borough of Duryea v. Guarnieri, to review a decision of the United States Court of Appeals for the Third Circuit regarding whether petitioning activity must address a matter of public concern to be entitled to First Amendment protection. In light of the potential impact that decision could have on the present matter, on December 9, 2010, the Court ordered the parties to show cause why the Court should not stay proceedings in this matter pending the resolution of Duryea by the United States Supreme Court. (Doc. No. 34.) On December 17, 2010, Plaintiffs informed the Court that they did not oppose a stay. (Doc. No. 35.) Likewise, on December 20, 2010, Defendants advised that they would support a stay of these proceedings. (Doc. No. 36.) On June 20, 2011, the Supreme Court issued an opinion in Duryea, and this Court lifted the stay on that date. (Doc. No. 38.) The Court ordered supplemental briefing in light of the Supreme Court's decision (Doc. No. 41), which was completed on September 12, 2011 (Doc. Nos. 42, 43).

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). In reviewing a motion to dismiss, a court may "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). The motion will only be properly granted when, taking all factual allegations and inferences drawn therefrom 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 the 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). While the Rule 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, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)).

III. DISCUSSION

Plaintiffs have filed an eleven count*fn2 amended complaint. (Doc. No. 28.) The amended complaint raises Section 1983 claims against Pawlowski and Brown in both their individual and official capacities by each individual Plaintiff. (Id.) In addition, it raises a Section 1983 claim against Pawlowski and Brown in their official capacity by the PSTA. (Id.) In the wake of the Supreme Court's decision in Duryea, Defendants contend that Plaintiffs' claims are not based on protected petitioning activity, and thus are not entitled to protection under the First Amendment. The Court will first consider the continuing viability of ...


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