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Kane v. Chester County

United States District Court, E.D. Pennsylvania

April 26, 2019




         Plaintiffs Jeremiah and Louise Kane have filed an amended complaint alleging that Defendant Chester County, Pennsylvania, and Individual Defendants, Douglas Waegel, Gerald Dowdall, and Jane Doe, in their individual and official capacities, violated Jeremiah Kane's civil rights, defamed him, and invaded his privacy when they refused to renew his employment contract. The Kanes also allege that Defendants are liable to Louise Kane for loss of consortium. Defendants move to dismiss the Kanes' amended complaint, asserting their claims fail as a matter of law. See Motion to Dismiss (doc. 19). Defendants' motion is granted.

         I may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). I must construe the complaint in the light most favorable to Kane. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011). I then must: (1) note the elements Kane must plead to state a claim; (2) identify any allegations that are mere conclusions, not entitled to an assumption of truth; and (3) assume the veracity of well-pled factual allegations and determine whether they plausibly give rise to a claim for relief. Id. at 221 (quoting Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). The plaintiff must show “more than a sheer possibility that a defendant has acted unlawfully.” Id. When the complaint does not state a plausible claim for relief, the motion to dismiss should be granted. See id.

         Kane alleges he is a Pennsylvania attorney who has practiced law for over 35 years, primarily advocating on behalf of abused and neglected children. Am. Compl. ¶¶ 2, 22. In approximately 1992, the Chester County Department of Children, Youth, and Families (“CYF”) hired Kane as a guardian ad litem, pursuant to a renewable one-year at-will contract. Id. ¶ 23. CYF renewed this contract every year for approximately 20 years and the majority of Kane's work came from this contract. Id. ¶¶ 25-26. Kane “developed a friendly camaraderie with many of his peers and the CYF employees with whom he worked . . . including Gerald ‘Gerry' Dowdall, a CYF supervisor with whom Mr. Kane worked closely on multiple guardian ad litem cases.” Id. ¶ 28.

         In 2009, Kane was appointed to serve as a guardian ad litem for two young brothers. Id. ¶ 32. Approximately one year later, Kane learned that the boys were being abused in their foster home and that CYF employees failed to notify Kane of the abuse. Id. ¶¶ 33-35. In November 2012, Kane, as guardian ad litem for the boys, filed a civil rights action against Chester County and certain CYF caseworkers and supervisors (“the 2012 Lawsuit”). Id. ¶ 36.

         When Kane's contract was up for renewal the following May, CYF refused to renew the contract without providing a reason. Id. ¶ 40. Kane discussed the issue with the then-President Judge of the Chester County trial court, who reached out to CYF. Id. ¶¶ 41-42. CYF subsequently agreed to renew Kane's contract. Id. ¶¶ 43-44.

         CYF renewed Kane's contract each of the next three years as the 2012 Lawsuit continued. Id. ¶ 46. In August 2016, the lawsuit settled. Id. ¶ 47. Waegel, the then-acting director of CYF, was present at the court hearings and settlement conferences. Id.

         On May 5, 2017, Waegel sent Kane a letter notifying him that his contract would not be renewed after it ended on June 30, 2017.[1] Id. ¶¶ 50-51, Ex. A, 5/5/2017 Letter (“May 5 Letter”).[2] Waegel stated that the decision was based on the “following conduct, which the County views as unethical, unprofessional, and harassing, and which has potentially subjected the County to liability”:

1. Leaving four harassing telephone voice-mails to a CYF supervisor in which you impersonated a County employee (in violation of Section 4912 of Title 18) and gave instruction to that employee which you were not authorized to give;
2. Leaving four harassing telephone voice-mails to a CYF supervisor which had the effect of impeding that employee from discharging his duties;
3. Leaving four harassing telephone voice-mails to a CYF supervisor while engaged in your position as guardian ad litem and while in court on a County/GAL matter for which you submitted invoices for payment to the County, and;
4. Engaging in conduct (set forth above) which calls into serious question your judgment and ability to act in the best interest of the children you serve.

May 5 Letter at 1. Waegel asked Kane to “cease and desist from the harassing conduct expressed above as to any CYF employee.” Id. He also stated that Kane would not be assigned additional cases, his current cases would be reassigned, and CYF would shred his confidential juvenile files. Id. at 2.

         Waegel included “a packet of [relevant] information” with the May 5 Letter. Id. at 1. The first document was a transcript of three “[v]oicemails to Gerry Dowdall of CYF.” Id., Attachment, Voicemails. The callers alleged they were employees of the Chester County Parking Authority or the Traffic Parking Compliance Department and accused Dowdall of speedy and careless driving in County parking facilities. Id. The transcriptions stated:

Mr. Dowdall, this is Tom Jenkins. I talked to you a couple of months ago. I am from the County Parking Authority and we have another report of your speedy driving, your careless driving at approximately 12:15 PM today, Thursday. I believe at this point we're gonna have to ask you not to park in the county facilities anymore. If you'd like to discuss this we will be sending you the paperwork to file an appeal but pending the appeal we ask you to park in the roads of West Chester, not in our facilities due to your dangerous driving. If you'd like to give a call, my office at the courthouse is in the basement and the extension is 6867. Again, Tom Jenkins.
Mr. Dowdall, this is Robert Snodgrass of the Parking Authority of Chester County. It's about twenty after four on my timepiece. We understand again there's been a violation at the parking garage. You were cited previously. I do need you to call back and discuss this issue. Why don't I give you the office at the county building, 610-344-6867. You know it doesn't have to happen this way. We are really asking you is to slow down a little. Alright. Let's work this out before we get into fines and costs. Thank you. Goodbye.
Mr. Dowdall, Tom Jenkins again calling from the Traffic Parking Compliance Department. We did observe additional behavior today. I would like a phone call back. You can try the parking extension program at 6983 and we have some things to discuss and I'm sorry it's come to this point. Tom Jenkin here, 6983. Thank you.


         Waegel also included video images of Kane in the hallway of the Chester County courthouse on March 2, 2017. Am. Compl. ¶ 72, Attachment at 3/2/2017 Video Images. In one image, Kane is walking through the hall and in other images, Kane appears to be on a telephone or looking at cell phone. 3/2/2017 Video Images.

         The last document was a copy of an April 11, 2017 email from Waegel to a county solicitor with a subject line of: “FW: Incidents re: prank phone calls to GD.” Id., Attachment at 4/11/2017 Email (“April 11 Email”). In the top email, Weagel informed the solicitor that he had “highlighted the dates and times [of the phone calls] in yellow below.” Id. He then forwarded an email allegedly sent to him by Doe, in which she stated that she asked Dowdall for the dates and times of the phone calls and included information sent to Dowdall from a CISCO United Connection telephone system about voicemails on December 1, 2016, March 2, 2017, and April 3, 2017, two of which are marked urgent and of high importance. Id.

         Approximately one week after receiving the May 5 letter, Kane “reached out to President Judge Jacqueline Carroll Cody for aid.” Id. ¶ 91. He asked for “reconsideration of the letter terminating [his] duties as a [guardian ad litem] for the children of Chester County.” Id., Ex. B, 5/12/2017 Email. He explained that his “actions of the phone calls did not meet the actions that were discussed in that letter, ” and he believed “CYF is again trying to terminate my employment status for fighting for my clients and for trying to do what is right.” Id. Judge Cody spoke with the county solicitor about the termination of Kane's contract, but CYF would not reconsider its decision. Id. ¶ 92, Ex. B, 6/8/2017 Email.

         Around the same time, Kane wrote to the Deputy Director of the Chester County Department of Procurement and General Services to reapply for the guardian ad litem contract. Id. ¶ 90, Ex. B, 5/24/2017 Letter. Kane never received a response to this letter. Id. ¶ 90.

         On June 14, 2017, Kane attended a dependency hearing before a master as the guardian ad litem for a client. Id. ¶¶ 95-96. “In the midst of the hearing, the opposing solicitor for CYF suddenly stopped the hearing in order to speak [by telephone] with someone from CYF, ” whom Kane alleges was Doe. Id. ¶¶ 98, 100. Following the call, the solicitor stated Kane “needed to be removed from the court room because he was no longer a guardian ad litem (despite the contract still being in effect per Defendant Waegel's letter), and thus could not be present for the ...

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