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Exeter Township v. Franckowiak

United States District Court, E.D. Pennsylvania

April 20, 2018

EXETER TOWNSHIP, Plaintiff,
v.
CHERYL FRANCKOWIAK, Defendant.

          PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, ECF NO. 53 - DENIED

          JOSEPH F. LEESON, JR., United States District Judge

         I. Introduction

         Plaintiff Exeter Township has filed a Motion for Leave to Amend its Complaint. ECF No. 53. For the reasons set forth below, the Motion is denied because the proposed amendments would cause undue prejudice to Defendant Cheryl Franckowiak.

         II. Background

         A. The Township's initial Complaint

         The Township filed its Complaint in this matter in June 2017 against Franckowiak, who was employed as the Township Zoning Officer from 2002 through April 2016, when the Township terminated her employment. See Compl. ¶ 8, ECF No. 1. The Complaint asserts five claims against Franckowiak, based primarily on conduct alleged to have occurred during her period of employment with the Township.

         In Counts I and II of the Complaint, the Township alleges that Franckowiak violated the federal Stored Communications Act and Pennsylvania's Stored Communications Act (hereinafter “the Stored Communications Acts”) when she accessed the email account of a former Township employee without authorization and accessed the Township server to erase information without authorization.

         In Count III of the Complaint, the Township asserts a trespass to chattels claim against Franckowiak, alleging that she intermeddled with the above-mentioned email account and server, as well as with files stored on a cell phone that had been provided to her by the Township. In Count IV of the Complaint, the Township asserts a claim of conversion, alleging that Franckowiak stole, misappropriated, or deprived the Township of its ownership of the contents of the cell phone and the server.

         Finally, in Count V of the Complaint, the Township asserts a claim of breach of fiduciary duty, alleging that Franckowiak breached her duties to the Township as a public officer when she abused her Township position for personal gain. In particular, the Township alleges that Franckowiak improperly approved zoning applications and requests submitted by Ryan Smith, President of Supportive Concepts for Families, Inc., (“Supportive Concepts”), a provider of services for persons with disabilities, in order to secure future employment with Supportive Concepts. See Compl. ¶¶ 12-25. In addition, the Township alleges that Frankcowiak further breached her duties when she accessed the above-mentioned email account, failed to process zoning applications and deposit checks, and deleted files from the cell phone and server.

         B. The Court's Scheduling Order and Discovery Orders

         The Rule 16 Scheduling Order in this case, filed on September 29, 2017, set December 26, 2017, as the deadline for fact discovery and directed that any motion to amend the pleadings or join parties should be filed no later than thirty days before the close of fact discovery. ECF No. 19. In an order issued on January 11, 2018, the Court extended the deadline for fact discovery from December 26, 2017, to January 31, 2018. ECF No. 41. In a letter dated February 12, 2018, Franckowiak, through counsel, informed the Court that the Township had informed her that it intended to file a motion to join Eric Gardecki, a former Township employee, as a defendant in this matter, and she stated several objections to this proposal. The Township, through counsel, responded with a letter dated February 20, stating that it did, indeed, intend to file a motion to join Gardecki as a defendant, based on statements Gardecki had made during his deposition on February 1, 2018. On February 23, following a telephone conference with the parties concerning this and other disputes, the Court issued an order directing the Township to file any motion to amend the Complaint to join Gardecki as a defendant no later than February 27. ECF No. 51.

         C. The Township's Proposed Amendments and Franckowiak's Opposition

         On February 26, the Township filed the present Motion, seeking to amend its Complaint to join Gardecki as a defendant and to add factual allegations against Franckowiak concerning the alleged breach of her fiduciary duties. With respect to Gardecki, the Proposed Amended Complaint alleges the following facts. Gardecki held the position of Township IT Administrator from 2001 through his termination on April 13, 2016. Prop. Am. Compl. ¶ 53, ECF No. 54. On the day before his termination, Gardecki “intentionally made a copy of the Township's cloud-based server, which contained highly sensitive and confidential information, to an external hard drive owned by the Township.” Id. ¶ 54. Gardecki stole the external hard drive, as well as two additional hard drives owned by the Township, also containing Township-owned materials, and he did so only “for personal reasons and to assist Ms. Franckowiak in her efforts to harm the Township.” Id. ¶¶ 55, 57. In November 2017, Gardecki received a subpoena in this matter, which the Township served on him as a third-party witness. Id. ¶ 64. Although Gardecki knew, at the time he was served with the subpoena, that he still had the hard drives in his possession, he did not return the property to the Township until December 20, 2017. Id. ¶¶ 65-66. On the basis of these allegations, in Counts I and II of the Proposed Amended Complaint, the Township asserts that Gardecki violated the Stored Communications Acts, and in Counts III, IV, and V of the Proposed Amended Complaint, asserts claims of trespass to chattels, conversion, and breach of fiduciary duty against Gardecki.

         With respect to Franckowiak, the Township proposes adding the following allegations to its initial Complaint. First, “[t]hroughout Ms. Franckowiak's employment with the Township, [she] engaged in conversations with Mr. Gardecki regarding her intent to act as a whistleblower against the Township, ” and “[d]uring these conversations, [she] made various false and disparaging misrepresentations relating to the Township in an effort to harm the Township.” Id. ¶¶ 58-59. Further, “[a]s a direct result of such conversations, Mr. Gardecki was motivated to and did steal the [hard drives] to benefit Ms. Franckowiak in her efforts to harm the Township.” Id. ¶ 60. Franckowiak subsequently “became aware ...


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