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Loscombe v. City of Scranton

United States District Court, Third Circuit

May 20, 2013

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


A. RICHARD CAPUTO, District Judge.

Presently before the Court are: a Motion to Dismiss filed by Defendants City of Scranton ("the City") and Mayor Chris Doherty (collectively, "the City Defendants") (Doc. 99); a Motion to Dismiss filed by Defendants City of Scranton Firemen's Pension Commission, Firemen's Relief and Pension Fund Commission, and City of Scranton Composite Pension Board (collectively, "the Pension Board Defendants") (Doc. 102); and a Motion for Partial Summary Judgment filed by Plaintiff John Loscombe (Doc. 105). Pursuant to a City Ordinance, Loscombe's pension payments were suspended when he took a paid position on the City Council after retiring from the City's Fire Department. Because of this suspension, he claims that this Ordinance has violated his First Amendment right of freedom of association, amounts to First Amendment retaliation, has effected a Fifth Amendment taking, is a violation of Equal Protection, and is overbroad. For the reasons below, the Defendants' Motions to Dismiss will be granted in part and denied in part and Loscombe's Motion for Partial Summary Judgment will be denied.


Loscombe alleges the following in his Third Amended Complaint. (Doc. 97.) Loscombe was a Fire Captain for the City until his retirement. ( Id. at § 2.) The City forced him into disability retirement based on injuries he sustained in a work-related accident. ( Id. at § 13.) For his service, he received a disability retirement pension from the City's Fire Department "until it was stripped away from him in retaliation for him exercising his First Amendment right to hold political office." ( Id. at § 2.) Specifically, the City Defendants directed the Pension Board Defendants to suspend Loscombe's pension soon after he joined the City Council based on a letter authored by a City business administrator requesting them to do so. ( Id. at §§ 21, 23.) Mayor Doherty was "intimately involved" in this decision, as he approved it based on the letter. ( Id. at § 24.) Both the City Defendants and the Pension Board Defendants suspended Loscombe's pension for "accepting an offer to hold the political position of Scranton City Council member on or about February 3, 2010 and continuing." (Doc. 97 at § 17.) This was an act of retaliation aimed at financially crippling Loscombe and compelling him to resign his position on City Council, [1] ( Id. at §§ 19-20), and the City Defendants acted in conspiracy with the Pension Board Defendants to violate his constitutional rights ( Id. at § 24).

Although not explicitly clear, Loscombe's Third 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 City Ordinance ("Ordinance") provides that:

When any fireman[2] 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 claims that this Ordinance is unconstitutionally overbroad and violates the Fifth Amendment's Takings Clause and the First Amendment's right of freedom of association. (Doc. 97 at §§ 32-33.) He further asserts that the pension suspension was done in retaliation for exercising his First Amendment right to hold political office ( Id. at § 20) and amounted to an unlawful seizure and taking ( Id. at § 35).

Loscombe filed his Third Amended Complaint[3] in this § 1983 action on August 29, 2012. (Doc. 97.) On September 14, 2012, the City Defendants filed a Motion to Dismiss (Doc. 99), and the Pension Board Defendants did likewise on September 17, 2012 (Doc. 102).[4] Loscombe moved for partial summary judgment on September 19, 2012. (Doc. 105.) The motions have been fully briefed and are ripe for disposition.


I. Motion to Dismiss

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. See Fed.R.Civ.P. 12(b)(6). 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 Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). 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).

"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 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. 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, 210 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662 (2009). As such, "[t]he touchstone of the pleading standard is plausability." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

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, meaning enough factual allegations "to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). "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." Iqbal, 556 U.S. at 677. "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.

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. Motion for Summary Judgment

Summary judgment shall be granted "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). "Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). However, where there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that "the non-moving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57. The Court ...

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