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Pecha v. Botta

United States District Court, W.D. Pennsylvania

September 30, 2014

CHAD PECHA, Plaintiff,
FRANK BOTTA, Defendant.




On November 21, 2013, Plaintiff Chad Pecha ("Plaintiff" or "Pecha") initiated this action against a private attorney, Frank Botta ("Defendant" or "Botta"), asserting a variety of state and federal claims stemming from Botta's legal representation of Pecha's former employer, 5J Oilfield Services, LLC ("5J"). (Doc. No. 1). Specifically, Plaintiff asserts the following claims: "equal protection banning plaintiff from seeking employment and to be secure in his person" under 42 U.S.C. § 1983 (Count I); tortious interference with business relations (Count II); business disparagement (Count III); usurpation of business opportunity (Count IV); defamation (Count V); and a declaratory judgment action (Count VI).[1] Id.

Presently pending before the Court is Defendant's Motion to Dismiss (Docket No. 5), Plaintiff's Brief in Opposition (Docket No. 8), and Defendant's Reply Brief (Docket No. 10). For the reasons set forth below, Defendants' Motion to Dismiss will be granted in part and denied in part.


Prior to the events underlying this litigation, Pecha was employed by 5J, a company represented by Botta in his capacity as a private attorney. (Compl. ¶¶ 1-3). Upon leaving his employment with 5J, Pecha executed a Confidentiality and Non-Compete Agreement ("the Agreement"), drafted by Botta, pursuant to which Pecha agreed not to seek employment with another company in the oil and gas industry for a period of three years. (Compl. Ex. A). The Agreement also contained geographic restrictions that encompassed eleven states, including Ohio. (Id.). In consideration for Pecha's agreement not to compete, 5J agreed to withdraw a prior federal lawsuit that it had filed against Pecha in the Western District of Pennsylvania related to his termination. (Id.). Pecha and a representative for 5J each signed the Agreement. (Id.).

At some point in October of 2013, Botta received word that an Ohio company, Mid-East Trucking ("Mid-East"), had either hired Pecha or was about to hire Pecha. (Compl. ¶ 8; Compl. Ex. B). In response, Botta drafted a letter to Mid-East informing them that Pecha was subject to a non-compete agreement and that any attempt to hire Pecha would violate that agreement. Id . Botta also telephoned Mid-East to advise them of the same. (Compl. ¶ 8). In the course of those communications, Pecha asserts that Botta made "various statements and accusations... designed to cast [Pecha] in a bad light to a potential employer." ( Id. ¶ 51). Specifically, Botta allegedly stated that "I wouldn't trust [Pecha] as far as I could throw him." ( Id. ¶ 52). As a result of Botta's actions, Pecha failed to obtain employment with Mid-East. ( Id. ¶ 13).


A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007)).

The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for all civil actions.'" Iqbal , 556 U.S. at 684. The court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Id. at 678-79. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly , 550 U.S. at 555). The determination as to whether a complaint contains a plausible claim for relief "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 678-79 (citing Twombly , 550 U.S. at 556). In light of Iqbal, the United States Court of Appeals for the Third Circuit has instructed that district courts should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true, " "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Fowler v. UPMC Shadyside , 578 F.3d 203, 211 (3d Cir. 2009). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556).


A. Section 1983 (Count I)

Section 1983 imposes civil liability upon any person who, under color of state law, deprives someone of the rights, privileges, or immunities secured by the federal Constitution or the laws of the United States. Gruenke v. Seip , 225 F.3d 290, 298 (3d Cir. 2000). Section 1983 is "not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor , 490 U.S. 386, 393-94 (1989). To state a claim under Section 1983, a plaintiff must allege a deprivation of a right secured by the Constitution or laws of the United States and that the deprivation occurred under color of state law. Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 931 (1982). An individual acts under color of state law when: "(1) he is a state official, (2) he has acted together with or has obtained significant aid from state officials, ' or (3) his conduct is, by its nature, chargeable to the state." Angelico v. Lehigh Valley Hosp., Inc. , 184 F.3d 268, 277 (3d Cir. 1999) (quoting Lugar v. Edmondson Oil Co., Inc. , 457 U.S. 922, 937 (1982)).

In his Section 1983 claim, Pecha contends that Botta violated his right to seek and gain employment as secured by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. (Compl. ¶¶ 18, 20). Pecha maintains that Botta is a state actor for purposes of Section 1983 because of his role as a licensed attorney and "officer of the Court." ( Id. ¶15). Specifically, Pecha contends that Botta acted under color of state law by "calling a potential Ohio employer from his Pennsylvania law office" and by issuing an "actual and realistic threat of state action [by] fil[ing] a lawsuit" against Mid-East if they hired Pecha. (Doc. No. 8 at p. 7).

There are few principles as well-settled in the law as this: an attorney cannot be considered a state actor simply because of his status as an attorney and officer of the court. As explained by the United States Supreme Court:

It is often said that lawyers are "officers of the court." But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor "under color of state law" within the meaning of § 1983.

Polk County v. Dodson , 454 U.S. 312, 318-19 (1981). Thus, "[a]lthough states license lawyers to practice, and although lawyers are deemed officers of the court, ' this is an insufficient basis for concluding that lawyers act under color of state law for the purposes of [Section 1983]." Henderson v. Fisher , 631 F.2d 1115, 1119 (3d Cir. 1980); see also Angelico , 184 F.3d at 277-78 ("Attorneys performing their traditional functions will not be considered state actors solely on the basis of their positions as officers of the court."). Pecha's argument that Botta acted under color of state law by making an interstate telephone call and ...

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