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Thomas v. Barilla

United States District Court, Western District of Pennsylvania

September 22, 2014

KEVIN A. THOMAS, Plaintiff,



I. Introduction

This matter is before the court upon motions for summary judgment filed by defendants Norman Barilla (“Barilla”) (ECF. No. 98), John DiCola, Jr. (“John” or “DiCola”) (ECF No. 109), Delores DiCola (“Delores”) (ECF No. 120), and Holly Thomas (“Holly”) (ECF No. 114). In the underlying action, plaintiff Kevin Thomas (“Kevin” or “plaintiff”) contends that the defendants conspired to deprive him of his constitutional rights during the course of state custody proceedings related to his son, CJT. (ECF No. 35.) Invoking 42 U.S.C. § 1983, plaintiff primarily contends that the defendants violated his constitutional rights as secured by the First and Fourteenth Amendments (Counts I and II). (Id.) He also raises a civil conspiracy claim related to the aforementioned violations (Count III) and asserts a state law claim of intentional infliction of emotional distress (Count IV). (Id.) This court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(a)(3), (4) and 42 U.S.C. § 1983.

II. Factual Background

Kevin and his ex-wife, Holly, are the divorced parents of a minor child. (Combined Statement of Material Facts (“C.S.F.”) (ECF No. 146) ¶ 6.) John and Delores DiCola are Holly’s parents. (Id. ¶ 7.) Barilla, a Lawrence County attorney, is a high school classmate and friend of DiCola. (Deposition of Norman Barilla (“Barilla Depo.”) (ECF No. 130-2) at 11). Defendant Deborah Shaw (“Shaw”), another Lawrence County attorney, is a former legal partner and employee of Barilla. (C.S.F. (ECF No. 93) ¶ 9.) Judge John Hodge (“Judge Hodge”) is a judge on the Lawrence County Court of Common Pleas. (Id. ¶ 8.)

Since 2004, Kevin and Holly have been embroiled in a custody dispute concerning their son, CJT. (Deposition of Holly Thomas (“Holly Depo.”) (ECF No. 130-6) at 35.) In broad brush, Kevin alleges in the instant action that DiCola and Barilla supported Judge Hodge in his 2005 judicial election campaign in exchange for Judge Hodge’s agreement to administer CJT’s custody proceedings in a manner that favored Holly. To this end, Kevin’s second amended complaint portrays DiCola as a heavyweight in local politics and a longtime friend and political associate of Judge Hodge. (ECF No. 35 ¶¶ 14, 17.) Kevin asserts that Judge Hodge’s reputation had previously been marred by scandal and that he would not have been elected to the bench without the direct support of DiCola. (Id. ¶¶ 26-27.) In return for that support, Kevin contends that Judge Hodge explicitly agreed to help DiCola’s daughter, Holly, gain the upper hand in CJT’s custody proceedings. ( Id. ¶¶ 31-32). Kevin suggests that Barilla, because of his friendship with both Judge Hodge and DiCola, participated in and supported this scheme. (Id. ¶ 35.) Kevin alleges that the defendants met on many occasions to discuss how best to aid Holly in the custody case. (Id. ¶¶ 35, 41.)

Because the facts underlying these accusations are heavily disputed, the court will examine them in depth.

A. The Relationship Between the Parties

From 1988 through 2010, DiCola served as an elected township supervisor in Neshannock Township, located in Lawrence County. (Deposition of John DiCola (“DiCola Depo.”) (ECF No. 130-5) at 17-18.) From 1982 until 1996, and again in 2004, Judge Hodge served as the Lawrence County solicitor. (Deposition of John Hodge (“Hodge Depo.”) (ECF No. 130-3) at 13-14.) Prior to his election to the bench, Judge Hodge and Barilla had legal offices next door to one another on Wilmington Road in Neshannock Township. (C.S.F. (ECF No. 93) ¶ 37.) Over the course of the years that they worked in adjoining buildings, Barilla and Judge Hodge would occasionally meet in Barilla’s office to socialize. (Id. ¶ 36.)

According to Kevin, DiCola and Judge Hodge worked together on a handful of occasions while both held public office in Lawrence County. (Deposition of Kevin Thomas (“Kevin Depo.”) (ECF No. 130-1) at 15-20.) For example, Kevin testified that DiCola had consulted with Judge Hodge concerning how to create a permanent full-time township position for himself. (Id. at 16-17.) He testified that Judge Hodge later assisted DiCola with a property matter (id. at 19-20), and once gave Holly advice on an employment issue that arose while she was working for UPMC in 1999. (Id. at 20.) With respect to each of these interactions, Kevin stated that he had learned about them directly from DiCola. (Id. at 15, 17-18, 20.)

Kevin testified that a local attorney, Luanne Parkenon (“Parkenon”), approached him at a social gathering in 2011 and informed him that Barilla and Judge Hodge shared a “long-time relationship.” (Kevin Depo. (ECF No. 130-1) at 21.) Prior to becoming an attorney, Parkenon had briefly worked as a legal assistant for Barilla in 1995 and 1996. (Barilla Depo. (ECF No. 130-2) at 42-43; Affidavit of Luanne Parkonen (“Parkenon Aff.”) (ECF No. 101-9) ¶ 2.) According to Kevin, Parkenon informed him that Barilla and Judge Hodge used to “regularly” visit in Barilla’s law offices and that Barilla had supported Judge Hodge in his judicial election campaign. (Kevin Depo. (ECF No. 130-1) at 22-23, 28.) Kevin testified that Parkonen also implied that John DiCola had “probably” supported Judge Hodge during his election campaign. (Id. at 32.) Kevin recalls Parkenon stating that DiCola also occasionally met with Judge Hodge and Barilla, although she could not provide any specific dates, times, or details with respect to those meetings. (Id. at 27-28.)[1]

For their part, DiCola and Judge Hodge each denied that any of the interactions alleged by Kevin ever took place. (DiCola Depo. (ECF No. 130-5) at 28-29, 31, 44; Hodge Depo. (ECF No. 130-3) at 25-26, 44-45.) During his deposition, DiCola testified that he had never met Judge Hodge prior to the custody proceedings between Keven and Holly. (DiCola Depo. (ECF No. 130-5) at 28-29, 31, 44.) Judge Hodge admitted that he had heard of DiCola because of DiCola’s position as a Neshannock Township supervisor, but testified that he has never interacted with him or met him outside of court. (Hodge Depo. (ECF No. 130-3) at 18-19, 25-26, 44-45.) Both DiCola and Judge Hodge denied ever consulting on any legal matters during their public employment or taking any steps to manipulate the assignment of CJT’s custody proceeding. (DiCola Depo. (ECF No. 130-5) at 44-46; Hodge Depo. (ECF No. 130-3) at 46.)

Barilla acknowledged his long relationship with DiCola and admitted that he knew Judge Hodge from their time working in adjacent buildings in Neshannock. (Barilla Depo. (ECF No. 130-2) at 8-13.) However, he denied ever taking any action to use his friendship with DiCola or his acquaintance with Judge Hodge to influence CJT’s custody proceedings. (Id. at 8-9, 65.)

In an affidavit filed on behalf of the defendants, Parkenon recalled mentioning to Kevin that Judge Hodge and Barilla used to visit occasionally in Barilla’s office, but did not remember stating that either of them had any connection to DiCola. (Parkenon Aff. (ECF No. 101-9) ¶¶ 3-5.) She explained that she had not worked for Barilla for over ten years prior to her conversation with Kevin and, consequently, would have no personal knowledge about whether DiCola, Barilla and Judge Hodge maintained a friendship or ever met with one another. (Id. ¶¶ 4-5.)

B. The Custody Proceedings

In 2004, Kevin and Holly commenced custody and child support hearings in the Allegheny County Court of Common Pleas. (Holly Depo. (ECF No. 130-6) at 35.) In June 2004, Holly moved to Neshannock Township, in Lawrence County. (Id. at 35.) On August 21, 2006, Holly’s attorney petitioned to have the proceeding transferred to Lawrence County where it was assigned to Judge Hodge. (C.S.F. (ECF No. 93) ¶ 4.) On September 25, 2009, Judge Hodge appointed Shaw, Barilla’s legal partner, to serve as CJT’s Guardian Ad Litem (“GAL”). (Id. ¶ 10.)

In June 2011, John and Delores DiCola began to investigate the possibility of purchasing a local bakery, possibly in conjunction with Holly. (Id. ¶ 25). They requested Barilla’s assistance in negotiating the potential purchase. (Id. ¶ 25.) Shortly thereafter, Kevin, through counsel, expressed his discomfort with Shaw serving as GAL given that her legal partner, Barilla, might represent Holly and her parents in the bakery acquisition. (Id. ¶¶ 25-27.) Shaw responded by filing a voluntary petition to withdraw as GAL. (Id. ¶ 28.) Judge Hodge signed an order granting that petition on July 1, 2011. (Id. ¶ 29.)

Throughout the custody proceedings, Kevin became increasingly uncomfortable with what he perceived as “disastrous behavior” on the part of Judge Hodge in the administration of the case. (Kevin Depo. (ECF No. 130-1) at 43.) In particular, Kevin criticized Judge Hodge’s decision to appoint Shaw as GAL given her connection to the DiCola’s by way of Barilla. (Id. at 50.) Kevin also contends that Holly taunted him at one point by asking him, “How do you like my new Judge?” (Id. at 43.) Eventually, Kevin became convinced that the defendants had arranged to have CJT’s custody proceedings transferred from Allegheny County to Lawrence County so that they could be placed under Judge Hodge’s control. Based upon this belief, Kevin initiated the instant lawsuit ...

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