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Maryann anderson v. Board of School Directors of the Millcreek Township School

November 3, 2011

MARYANN ANDERSON, PLAINTIFF,
v.
BOARD OF SCHOOL DIRECTORS OF THE MILLCREEK TOWNSHIP SCHOOL DISTRICT, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Presently pending before the Court in this federal civil rights action is a motion by the Plaintiff for the undersigned‟s recusal. This Court has jurisdiction over the pending matter by virtue of 28 U.S.C. §§ 1331, 1343, and 1367. For the reasons set forth below, the motion will be denied.

I. BACKGROUND

Plaintiff MaryAnn Anderson is a former employee of the Millcreek Township School District (the "School District"). In this action arising under 42 U.S.C. § 1983, Anderson has sued the School District‟s Board of Directors, its former Superintendent, and the former Vice-President of the Board, claiming that these Defendants violated her rights under state and federal law by retaliating against her after she made statements that, she asserts, were in the nature of whistleblower reports. Also named as one of the original Defendants was the School District itself; however, the School District was dismissed from the case following argument held on July 29, 2008. At all relevant times prior to and during this litigation, the School District has been represented in various capacities by the law firm of Knox McLaughlin Gornall & Sennett, P.C. (hereinafter, the "Knox Firm").

Following extensive pretrial discovery and motions practice, Plaintiff has of late come to the view that Richard Perhacs, Esq., an attorney with Knox Firm, is a "premier witness in Plaintiff‟s case in chief for whistleblower status and retaliation." (Pl.‟s Mot. for Recusal [220] at ¶ 5.) More specifically, Plaintiff contends that Perhacs was complicit in actively concealing and/or spoliating evidence that would have materially assisted her in presenting her case.

Accordingly, Plaintiff has stated her intent to file a motion to add Attorney Perhacs as an additional defendant and to request sanctions against defense counsel and the School District‟s counsel "for concealing evidence that would have enabled Plaintiff to adduce Attorney Perhacs‟ culpability in this case." (Mot. for Recusal at ¶14.) As part of this motion, Plaintiff apparently plans to seek sanctions against the entire Knox firm. Plaintiff asserts that, in addition to my having to rule on the addition of Perhacs as a party and Perhacs‟s potential liability, the Court will "in the very near future" be "required to address issues directly effecting Knox‟s representation of [the School District] and compliance with rules of procedure and preservation of electronically stored information." (Pl.‟s Br. in Supp. of Mot. for Recusal [221].)

In light of these developments concerning Mr. Perhacs, Plaintiff asserts that my recusal from this case is required under 28 U.S.C. § 455(a) on the theory that my impartiality might reasonably be questioned. In support of this assertion, Plaintiff states the following:

6. Plaintiff . comprehends, for the first time, that the court‟s Chief Law Clerk, Kathy Scibetta (K. Scibetta), has a brother, Jeffry [sic] Scibetta (J. Scibetta), who is a shareholder at the Knox Firm in circumstances when an influential shareholder there, Perhacs, is a key witness in Plaintiff‟s case and possibly a newly added Defendant.

7. Perhacs is Secretary to the Board of Directors and Personnel Chairperson, having influence over Jeffrey Scibetta.

8. K. Scibetta is the Court‟s chief law clerk, having worked for the Court for many years, maintaining a social friendship with the Court and the full confidence of the Court to advise it concerning the disposition of pending cases.

9. K. Scibetta has been actively involved in advising the Court relevant to the merits of Plaintiff‟s case, having attending the hearings conducted in January 2011 pursuant to Plaintiff‟s F.R.C.P. 11 Motion.

10. Upon information and belief, K. Scibetta has been involved in advising the Court concerning Plaintiff‟s case for an extended period of time, sans the Court ever disclosing to Plaintiff that her brother is a shareholder at the Knox Firm.

11. At no time was Plaintiff made aware of K. Scibetta‟s immediate family relationship with the Knox Firm at the same time she was directly involved in advising the Court about the merits of Plaintiff‟s case.

12. [..] the Court is duty bound to recuse itself form this case so Plaintiff can move forward with her case in a forum of impartiality, as is her right. (Mot. for Recusal at ¶¶ 6-12.)

Additionally, Plaintiff contends that my prior status as a shareholder in the Knox firm some seventeen years ago provides further grounds for recusal. According to Plaintiff, "this Court‟s prior relationship with Knox and Perhacs may lead the average person on the street to question the ability of the Court to impose sanctions against the judge‟s former firm where many colleagues likely still work or consider issues raised against a specifically named former colleague from the firm." (Pl.‟s Br. in Supp. of Mot. for Recusal [221] at p. 22.)

Finally, Plaintiff cites other relevant "acknowledged circumstances" which she believes weigh in favor of my recusal. (Pl.‟s Br. in Supp. of Mot. for Recusal at p. 22.) In particular, she points to the following events which, she contends, could support the conclusion that I am biased against her:

 I accepted into the record a document filed by the Defendants on October 5, 2009 -- namely, the Defendants‟ "Joint Supplement" [109] in support of their previous motion for dismissal/ motion for sanctions [87]; Plaintiff considers this document an "unrecognized pleading" and objects to the fact that Defendants were permitted to file the document after pleadings on the original motion had closed;  On October 6, 2009 I sanctioned Plaintiff‟s counsel, allegedly "without basis," in connection with a discovery dispute by reopening discovery on a narrowly defined issue and charging Plaintiff‟s counsel with the cost of the additional discovery;  On March 16, 2010 I issued a ruling relative to the parties‟ competing motions for sanctions in which, according to Plaintiff, my treatment of her was "significantly different" (meaning less favorable) than my treatment of the Defendants;  During a January 6, 2011 argument on Plaintiff‟s pending motion for Rule 11 sanctions, I permitted the Defendants to address issues raised in their October 5, 2009 Joint Supplement; however, by contrast on May 27, 2011, after granting Plaintiff's motion to reopen discovery relative to her own claims of spoliation, I indicated that discovery would be firmly limited to 60 days -- conduct which Plaintiff considers "disparate treatment";  Rulings have not yet issued relative to Plaintiff‟s motion for reconsideration of this Court‟s March 16, 2010 Order [157] or Plaintiff‟s motion for Rule 11 sanctions [183];  This Court‟s Order of March 31, 2011 granting Plaintiff‟s motion to further reopen ...


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