United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
Bissoon United States District Judge
April 29, 2016, Plaintiff Kathleen McCullough
(“Plaintiff”) filed a Complaint asserting various
constitutional and state law claims against an array of
politicians, government officials, businesspeople and
attorneys. (Comp. (Doc. 1)). On August 2, 2016, McCullough
amended her complaint to add several new Defendants. (Am.
Comp. (Doc. 43)). As discussed in detail below, the
allegations in the Amended Complaint arise out of three
criminal prosecutions involving Plaintiff. In the Cherup
Matter, Plaintiff was charged and found guilty of theft from
her employer, Radiance Out Patient Surgery Center, owned by
Lori Cherup, MD. In the Mackin Matter, Plaintiff was charged
with and found guilty of theft from another employer, Mackin
Engineering. Finally, in the Jordan Matter, Plaintiff was
charged with, but acquitted of, theft, and conspiring with
her brother, Allegheny County Councilman Charles McCullough
(“Mr. McCullough”), to steal from his client,
Shirley Jordan (“Ms. Jordan”), a 90 year old
six-count Amended Complaint alleges violations of 42 U.S.C.
§§ 1983, 1985, and 1986 based on conspiracy (Count
I); the Due Process Clause under the Fourteenth Amendment
(Count II); and state tort claims for Malicious Prosecution,
Abuse of Process, Intentional Infliction of Emotional
Distress, and Breach of Contract (Counts III through
VI).(See generally Doc. 43). Plaintiff
brings claims against the following entities and individuals:
Allegheny County, County Executive Richard Fitzgerald, former
County Executive Dan Onorato (collectively, the “County
Defendants”), PNC Financial Corporation
(“PNC”), Rea Miller, Thomas Gray, Lana Boehm
(collectively, the “PNC employees”), The Law Firm
of Eddy, DeLuca, Gravina & Townsend, Wayne DeLuca, Steve
Townsend, James DePasquale (collectively, the “Attorney
Defendants”), the Allegheny County District
Attorney's Office (“DA's Office), Joseph Todd
Moses (“Detective Moses”), and District Attorney
Stephen Zappala (“DA Zappala”) (collectively, the
“DA Defendants”). (Doc. 43 ¶¶ 2-15).
Defendants have filed Motions to Dismiss the Amended
Complaint (Docs. 62, 64, 71, 73, and 77). Although the Court
granted Plaintiff several extensions of time to respond to
these Motions, she failed to meet the extended deadlines, and
to date, has not filed any response to the Motions.
(See Doc. 76 (granting Plaintiff an extension until
October 30, 2016 to respond to Defendants' Motions); Doc.
81 (granting Plaintiff an extension until November 14, 2016
to respond to the Attorney Defendants'
Motion)). Accordingly, the Court will adjudicate the
merits of the Defendants' Motions without the benefit of
Plaintiff's response. For the reasons discussed below,
the Court will grant Defendants' Motions to Dismiss
(Docs. 62, 64, 71, 73, and 77), and dismiss this case with
April 13, 2007, Dennis Roddy, a reporter for the Pittsburgh
Post Gazette, wrote and published an article concerning Mr.
McCullough and his handling of Ms. Jordan's financial
affairs as her Power of Attorney and the co-trustee of Ms.
Jordan's trust. (Doc. 43 ¶ 22). The article prompted
an investigation into Mr. McCullough's conduct, led in
part by co-defendant Detective Moses, who, in May and July
2007, interviewed three PNC employees, Defendants Gray,
Miller, and Boehm. (Doc. 43, Ex. 2 (Miller Interview), Ex. 8
(Gray Interview), Ex. 10 (Boehm Interview), Ex. 12 (Gray
Re-interview)). According to the “Supplemental
Reports” attached to the Amended Complaint, Attorney
Wayne DeLuca represented PNC Employees Gray and Boehm at two
of these interviews. (Doc. 43 ¶ 59, Exs. 10, 12). As set
forth in the Supplemental Reports, the PNC employees
discussed with investigators their concerns regarding Mr.
McCullough's handling of the Trust, as well as their
refusal to consent to the transactions he proposed,
ultimately resulting in Mr. McCullough revoking the Trust
under his Power of Attorney and transferring the assets to
Northwest Savings Bank in January 2006. (See
generally, Doc. 43, Exs. 2, 8, 10, 12). In addition,
Plaintiff claims that the PNC employees “provided false
evidence concerning Plaintiff” during their interviews
with investigators. (Doc. 43 ¶¶ 56, 74).
Specifically, Plaintiff claims that PNC employees Miller and
Boehm falsely identified Plaintiff as an employee of
Northwest Savings Bank based upon the “false hearsay of
Boehm.” (Doc. 43, p. 3; id. at ¶¶
56, 59, 74). Plaintiff also alleges that Miller and Boehm
told investigators that Plaintiff charged Ms. Jordan an
“extremely high rate” for companion services -
$60 per hour - despite the fact that Plaintiff is “not
a nurse.” (Doc. 43 ¶ 57). Plaintiff further
alleges that Attorney DeLuca (who represented PNC and its
employees in the Jordan Matter) provided emails between Mr.
McCullough and the PNC employees to the District
Attorney's Office in May 2007. (Doc. 43 ¶¶
29(c), 61, Ex. 11).
2, 2008, nearly a year after the PNC employees were
interviewed regarding the Jordan Matter, Plaintiff was
arrested and charged in an unrelated matter involving her
criminal theft from her former employer, Dr. Lori Cherup
(“Cherup Matter”). (See Cherup Criminal
Docket (Doc. 64-6)). Both Attorney DeLuca and his law partner,
Attorney Townsend, represented Plaintiff in connection with
the Cherup Matter. (Doc. 43 at pp. 26-27, Exs. 26 & 27).
On February 19, 2009, after an eight-month Grand Jury
investigation, the DA's Office issued a criminal
complaint against both Plaintiff and her brother for criminal
theft and conspiracy related to their dealings with Ms.
Jordan (“Jordan Matter”). (Doc. 43 at pp. 2, 26,
¶ 36, Ex. 25). On the same date, Plaintiff was charged
in a separate criminal complaint for criminal theft from yet
another employer, Mackin Engineering (“Mackin
Matter”). (Mackin Criminal Docket (Doc. 64-7)).
Plaintiff once again retained Attorney Townsend to represent
her in the Jordan and Mackin Matters. (Doc. 43 ¶ 37).
However, less than a year later, on January 11, 2010,
Plaintiff terminated the services of Attorney Townsend in all
three matters, citing a purported “fundamental
egregious conflict of interest” given Attorney
DeLuca's representation of the PNC employees in the
Jordan Matter. (Doc. 43 ¶ 38 and Ex. 36). Plaintiff
ultimately sought new counsel in the three criminal
proceedings pending against her - later retaining Attorney
Christy Foreman in the Jordan Matter and Attorney DePasquale
in the Cherup and Mackin Matters. (Doc. 43 ¶¶ 39,
46, 68-69 and Ex. 15).
1, 2010, Plaintiff was convicted of theft in both the Cherup
and Mackin Matters. (Doc. 43, Ex. 28; see also Doc.
64-6; Doc. 64-7). On April 1, 2013, Plaintiff filed a Post
Conviction Relief Act (“PCRA”) petition in the
Court of Common Pleas (Doc. 64-12), which was denied in
January 2016. (Docs. 64-6 and 64-7). With regard to the
Jordan Matter, on March 28, 2012, the trial court denied
Plaintiff's Motion to Dismiss, finding that the
Commonwealth had shown sufficient probable cause that
Plaintiff had committed the crimes of theft and conspiracy.
That decision was later affirmed by the Superior Court of
Pennsylvania on February 27, 2014. Commonwealth of
Pennsylvania v. McCullough, 86 A.3d 896 (Pa. Super.
2014). On June 10, 2015, at the close of the
Commonwealth's presentation in the Jordan Matter, the
trial court acquitted Plaintiff of the charges against her.
(Doc. 43 ¶ 45 and Ex. 18). One month later, in July
2015, Mr. McCullough was found guilty of five third-degree
felony theft charges and five second-degree misdemeanor
charges of misapplication of entrusted property. (Jordan
Criminal Docket (Doc. 64-9)).
Amended Complaint, Plaintiff maintains that the County
Defendants conspired with the DA's Office to prosecute
her in the Jordan Matter in retaliation for her brother's
political activities. Specifically, Plaintiff asserts that
between January 2008 and January 2009, Mr. McCullough made
several statements to the press and engaged in litigation
adverse to Allegheny County, including seeking a preliminary
injunction enjoining the alleged misuse of excess drink tax
revenues and bringing a lawsuit challenging the legality of
“Walking Around Money” that allegedly led to the
adoption of a resolution ending the use of such funds. (Doc.
43 ¶¶ 25-26, 31-34, 64-66). Plaintiff alleges that,
when former Allegheny County Chief Executive Dan Onorato was
asked about these litigations in a January 14, 2009
interview, he leveled a “threat” against Mr.
McCullough. (Doc. 43 ¶¶ 35, 67, 73, 119 and Ex. 13
at Tr. 5:17-6:7). Plaintiff claims that Mr. Onorato later
engaged in “political payback” by influencing the
DA's Office to arrest and prosecute Plaintiff and her
brother. (Doc. 43 ¶¶ 67, 74, 119). Plaintiff
further claims that the various Defendants conspired to
violate her due process rights in order to protect PNC and
its employees from prosecution. (Doc. 43 p. 3, 28-30;
id. at ¶¶ 37, 63, 74, 107). Plaintiff
alleges that DA Zappala “permitted his employees,
Joseph Todd Moses and others[, ] to perpetrate this
intentional collusion and this intentional conspiracy . . .
to deny Plaintiff all of her civil rights.” (Doc. 43 at
the Amended Complaint is difficult to follow (to say the
least), Plaintiff seems to allege that the following facts,
among others, support her claims of conspiracy and due
• That her attorneys, Mr. DePasquale and Ms. Foreman,
stated to her that they believed the Jordan prosecution was
“politically motivated.” (Doc. 43 ¶¶
39, 46, 68-69).
• That the DA's Office did not indict and prosecute
any PNC employees regarding their conduct related to Ms.
Jordan's trust (Doc. 43 ¶¶ 40, 47);
• That Attorney DeLuca and Defendant Moses are friends
with Italo Mackin, the victim in the Mackin Matter (Doc. 43
at pp. 3, 30-32);
• That Mr. Mackin purportedly provided financial support
to Dan Onorato. ...