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McCullough v. County of Allegheny

United States District Court, W.D. Pennsylvania

February 16, 2017

COUNTY OF ALLEGHENY, et al., Defendants.


          Cathy Bissoon United States District Judge

         I. MEMORANDUM

         On 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 widow.

         Plaintiff's 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).[1](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).

         All 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)).[2] 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 prejudice.

         A. BACKGROUND [3]

         On 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)).[4] 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).

         On May 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)).[5] 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).

         On June 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)).

         In her 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 p. 27).

         Although 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 process violations:

• 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. ...

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