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Loscombe v. City of Scranton

United States District Court, M.D. Pennsylvania

August 10, 2012

John LOSCOMBE, Plaintiffs,
CITY OF SCRANTON, et al., Defendants.

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Cynthia L. Pollick, The Employment Law Firm, Pittston, PA, for Plaintiffs.

Timothy E. Foley, Foley, Cognetti, Comerford & Cimini, Lawrence A. Durkin, Durkin MacDonald, LLC, Scranton, PA, for Defendants.


A. RICHARD CAPUTO, District Judge.

Presently before me are two separate motions to dismiss by two separate groups of Defendants. (Docs. 34 and 39.) Pursuant to a Scranton City Ordinance, Plaintiff John Loscombe's pension payments were suspended when he took a political position on the Scranton City Council. Because of this suspension, Loscombe argues that this Ordinance has violated his First Amendment rights of freedom of association, amounts to First Amendment retaliation, has effected a Fifth Amendment taking, has bypassed the substantive and procedural protections of the Fourteenth Amendment, is a violation of Equal Protection, and is vague and overbroad. Collectively, the Defendants have all moved to dismiss all of these allegations.

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Plaintiff John Loscombe alleges the following in his Second Amended Complaint. (Doc. 29.) Loscombe was a Fire Captain for the City of Scranton until his retirement. For his service, he received a retirement pension from the Scranton Fire Department " until it was stripped away from him in retaliation for him exercising his First Amendment right to hold political office and in violation of his due process rights." ( Id. at ¶ 2.) Specifically, the Defendants suspended Loscombe's pension without notice of hearing for " accepting an offer to hold the political position of Scranton City Council member on or about February 3, 2010 and continuing." ( Id. at ¶ 15.) This was an act of retaliation aimed at compelling Loscombe to resign as council member.

Although not explicitly clear, Loscombe's Second Amended Complaint suggests that this pension suspension was done pursuant to " Section 99-80 a/k/a Section 24 of File of Council No. 14 of 1964." This Scranton City Ordinance provides that:

When any fireman is pensioned and thereafter enters the service of the City in any capacity with compensation the pension of such person shall be suspended during his term of service. Upon termination of such compensated service the pension payments shall be resumed on request of the pensioner.

Scranton, Pa., Code of the City of Scranton ch. 99, art. V, § 99-80 (1997). Loscombe asserts that this Ordinance is unconstitutionally vague and overbroad and in violation of the First Amendment's protections of free speech and association, the Due Process Clause of the Fourteenth Amendment, and the Takings Clause of the Fifth Amendment (Count III). Loscombe further maintains that this pension suspension was done in retaliation for exercising his First Amendment right to hold political office (Count I); that the suspension was in violation of both substantive and procedural due process under the Fourteenth Amendment (Count II); and that the pension suspension amounted to an unlawful seizure and taking (Count IV).

Although no specific involvement or particularized actions are plead, Loscombe asserts all four counts against all Defendants: the City of Scranton; the City's Firemen's Pension Commission; the City's Composite Pension Board; the Firemen's Relief and Pension Fund Commission; and Mayor Chris Doherty in his official and personal capacity.

On March 5, 2012, the City of Scranton and Mayor Chris Doherty (the " City Defendants" ) filed a motion to dismiss. (Doc. 34.) On March 9, 2011, the City's Firemen's Pension Commission, the City's Composite Pension Board, and the Firemen's Relief and Pension Fund Commission (the " Pension Defendants" ) also filed a motion to dismiss. (Doc. 39.) These Motions are now ripe for the Court's review.


I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.2000).

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" A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. However, mere conclusory statements will not do; " a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009). Instead, a complaint must " show" this entitlement by alleging sufficient facts. Id.

As such, the inquiry at the motion to dismiss stage is " normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded " enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, meaning enough factual allegations " ‘ to raise a reasonable expectation that discovery will reveal evidence of’ " each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). " The plausibility standard is not akin to a ‘ probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). " When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 127 S.Ct. 1955.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The Court may also consider " undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n. 13 (3d Cir.1998), or credit a complaint's " ‘ bald assertions' " or " ‘ legal conclusions,’ " Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir.1997)).

II. Analysis

A. The Mayor and The City

The City Defendants admit that Loscombe's pension was suspended because of his acceptance of a paid position on the Scranton City Council. (City Defs.' Br. at 10, Doc. 40.) They argue, however, that since Loscombe's pension is " under the separate care, control and supervision of the entirely distinct Fireman's Relief and Pension Fund Commission," that any adverse action taken with respect to Loscombe is not attributable to the Mayor or

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the City. ( Id. ) In fact, the Amended Complaint wholly fails to allege any particularized, personal involvement of ...

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