JOSEPH F. LEESON, JR., United States District Judge.
Plaintiff Aurelio Bonilla, a former police officer with the City of Allentown, settled an employment-discrimination lawsuit against the City in 2013. Whether Bonilla would receive a disability pension was discussed during the settlement negotiations. Since that time, the City of Allentown Police's Pension Fund Association ("Pension Board" or "Board") denied Bonilla's application for a disability pension. Bonilla thereafter initiated the above-captioned action for damages, equitable relief, and declaratory relief. After the instant action was filed, however, the state court reversed and remanded the pension denial to the Board, where proceedings are ongoing. At issue here are the City Defendants'
Bonilla was hired by the City of Allentown as a police officer in July 2008. City
Before a written settlement agreement was executed, Bonilla applied to the Pension Board for a disability pension. See Pl. dep. at Ex. 5, ECF No. 50-4; Pl.'s SUD ¶ 21. Bonilla attached to the application, which is dated June 26, 2013, reports from his treating orthopedic surgeon and from his primary care physician, each opining that Bonilla is permanently disabled. See Pl. dep. at Ex. 5. The letter from Bonilla's primary care physician states merely: "Mr.
In early August 2013, before the Board ruled on the pension application, Bonilla and the City signed a written Settlement Agreement regarding the employment-discrimination lawsuit. See Pl. dep. at Ex. 3, Settlement Agreement, ECF Nos. 50-3 and 50-4. As part of the Agreement, Bonilla resigned his employment with the City of Allentown and agreed to the dismissal of the employment-discrimination lawsuit. Id. at §§ 1, 4. In exchange, the City agreed to pay Bonilla $ 5,000. See id. at § 2(a). Further, under the terms of the written Agreement, the City agreed "that should Mr. Bonilla apply for a service-connected disability pension, its [sic] will not oppose any such application or subsequent review." See id. at § 2(b). The Agreement specifies that "[t]he foregoing does not guarantee Mr. Bonilla's ability to obtain any such service-connected disability pension as any such determination is made by an independent agency." Id. The Settlement Agreement further states that the written "Agreement represents the complete and entire understanding of the parties," "the parties acknowledge that they understand the terms of this Agreement, that such terms are acceptable, that there are no additional obligations, either oral or written, to be performed by any party...." Id. at § 14(B). See also id. at § 10 ("Knowing and Voluntary Agreement").
On August 28, 2013, after the written Settlement Agreement was executed, the Pension Board held a meeting to review Bonilla's disability pension request. See Pl. dep. at Ex. 6, ECF No. 50-4. The Board discussed the language in a governing ordinance that requires the Board to have the opinion of two physicians, whom were "selected by" the Board, that the pension applicant is totally disabled. See Pl. dep. at Exs. 6-7, ECF No. 50-4; Ex. C at § 143.22(A),
On October 24, 2013, Bonilla advised the Board that none of the Board's listed providers would agree to see him, and asked the Board to add Bonilla's treating physicians to the approved provider list or to identify additional acceptable providers. See Pl. dep. at Ex. 8, ECF No. 50-4. This request was discussed at the quarterly meeting on November 19, 2013, when the Board, noting that the reports attached to
On or about February 12, 2014, Bonilla filed a charge of retaliation against the City and the Pension Board with the U.S. Equal Employment Opportunity Commission ("EEOC"). City SUD ¶ 36; Ex. E, ECF No. 50-5.
The Pension Board held a meeting on March 13, 2014, and discussed Bonilla's pension application. See Pl. dep. at Ex. 4, ECF No. 50-4. John Marchetto, Esquire, addressed the Board on behalf of the City's Solicitor's Office, stating:
See id. at N.T. 5:24-6:20. The Board also heard from Bonilla, who had yet to undergo two independent medical examinations, and from his counsel. See id. at 7:18-8:2. Bonilla's counsel again asked the Board to accept one or both of the two previously submitted reports. See id. at 8:7-11. Bonilla informed the Board that the City had agreed as part of the settlement negotiations that he could use the doctors who had previously submitted reports, that he was "not going to go to any more doctors," and that he could not afford to pay for two independent medical examinations. See id. at 8:14 — 9:1. The Board explained to Bonilla that the pension ordinance requires two reports from Board-selected doctors and, after hearing concerns from Bonilla about the associated costs, discussed the possibility of paying for the exams. See id. at 11:11-13, 16:17-22, 17:18-18:10. Although the Board, expressing concern about the amount of medical information it had on Bonilla's injuries, see id. at 19:7 — 20:3, decided it would not accept the previously submitted reports, it did agree to pay for the independent examinations, see id. at 30:9-31:5.
Bonilla failed to obtain the two examinations by the time of the Board's next meeting on April 7, 2014. See Pl. dep. at Ex. 11, ECF No. 50-4. Neither Bonilla nor his counsel appeared at the hearing. See id. The Board acknowledged that notice of the hearing was sent late, but because one of the Board members spoke with Bonilla's counsel and confirmed that he and Bonilla
While the appeal was pending in the state court, Bonilla filed, on September 11, 2014, the above-captioned action alleging federal and state claims arising from the pension denial. See ECF No. 1. Bonilla asserts retaliation claims under Title VII and the Pennsylvania Human Relations Act ("PHRA"); a retaliation claim under the First Amendment; due process and conspiracy claims pursuant to 42 U.S.C. §§ 1983 and 1985; and state tort and constitutional claims. See Compl., ECF No. 1. For relief, Bonilla seeks, inter alia, a damages award and a declaration that "the Pension Fund Association is a part of, instrument for, and under the control and authority of the City, which requires the Association to comply with settlement agreements that the City of Allentown brokers or guarantees." Id. at 36.
The City Defendants filed a Motion to Dismiss asserting that the Court should abstain from exercising jurisdiction over the Complaint. See City's Mot. Dismiss 14-21, ECF No. 5 (citing Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, ("DJA"); Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 86 S.Ct. 1620 (1942);
Before the motions were decided, the Lehigh County Court of Common Pleas, on December 4, 2014, reversed and remanded the denial of Bonilla's application for a disability pension to the Pension Board for further proceedings. Ex. 1, ECF No. 25; Ex. H, ECF No. 50-5. The court determined that Bonilla did not have a full and fair opportunity to present evidence at the hearing because the Board failed to timely advise Bonilla of the scheduling of the hearing and, also, failed to advise him that the Board was going to take additional evidence. Id. The court remanded with directions to the Pension Board to give ample notice "of two appropriate physicians it selects for [Bonilla] to submit for
The Pension Board Defendants, with leave of Court, thereafter filed a Supplemental Motion to Dismiss all claims, alleging that the counts are not ripe
On January 7, 2015, the above-captioned action was stayed pending the outcome of the pension proceedings. See ECF No. 33. The Court explained that most of Bonilla's federal claims require the denial of the pension in order to state a claim and are not ripe for adjudication. See id. Although it appeared that the Title VII claim, alleging that Defendants have retaliated against Bonilla for filing a prior Title VII action against the City by unnecessarily delaying the processing of his pension application, may be ripe, the Court reasoned that it could better assess whether the claims were ripe after the state pension proceedings concluded. See id.
More than three and a half years later, during a telephone conference with the parties on October 2, 2018, the Court
The City Defendants filed a supplemental brief elaborating on its earlier arguments and asserting that the claims are still premature. See City's Supp. Mem., ECF No. 44. Bonilla, who had not previously responded to the Pension Board Defendants' two motions to dismiss,
More recently, Bonilla filed a Motion for Partial Summary Judgment, seeking summary judgment on his procedural due process and breach of contract claims. See Pl.'s SJ Mot. ECF No. 51. The City Defendants have also filed a Motion for Summary Judgment, asserting that summary judgment should be granted in their favor as to all claims against them. See City Defs.' SJ Mot., ECF No. 50.
In rendering a decision on a motion to dismiss, this Court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if "the `[f]actual allegations ... raise a right to relief above the speculative level'" has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. (explaining that determining "whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). But see Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir. 1993) (holding that "unripe claims should ordinarily be disposed of on a motion to dismiss, not summary judgment"). A disputed fact is "material" if proof of its existence or nonexistence might affect the outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (stating that the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). The party opposing the motion must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The court must consider the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
In the City Defendants' Motion to Dismiss, they assert that the Court should abstain from exercising jurisdiction over the Complaint as all claims are tied to the request for declaratory relief. See City's Mot. Dismiss 14-17. The stay order did not comment on whether it was appropriate to exercise discretionary jurisdiction. Thus, before discussing any of the pending motions, the Court clarifies that it is exercising discretionary jurisdiction.
"Abstention from the exercise of federal jurisdiction is the exception, not the rule." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
Rarick v. Federated Serv. Ins. Co., 852 F.3d 223, 229 (3d Cir. 2017) (holding that the independent claim test is the most appropriate one for determining whether to exercise jurisdiction of a case involving claims for both legal and declaratory relief). "The independent claim test asks whether the coercive [legal] claims (1) are alone sufficient to invoke federal subject-matter jurisdiction, and (2) can be adjudicated without the requested declaratory relief." Sumner v. Tompkins Ins. Agencies, Inc., No. 16-2218, 2016 WL 3345453, at *7, 2016 U.S. Dist. LEXIS 78379, at *23 (E.D. Pa. June 15, 2016) (internal quotations omitted). Where the legal claims are dependent on the outcome of the declarations sought, the court has the discretion to stay or dismiss the claims. See id.
The success of Bonilla's legal claims is largely dependent on whether he receives the declaration sought. Although certain legal theories within certain counts may not necessarily be dependent on the outcome of such declaration, other theories within the same counts are dependent. For example, whether the City Defendants failed to stop deprivation/supervise the city solicitor from allegedly making guarantees and false representations, see Pl.'s Resp. City Defs.' SJ Mot. 14, is not necessarily dependent on whether the Court declares that the Pension Board is under the control and authority of the City. However, whether the City Defendants failed to supervise the Pension Board is dependent on the declaration. Bonilla wants to pursue both theories for holding the City Defendants liable under Count III. Accordingly, Count III is dependent on whether Bonilla receives the declaration sought. On the other hand, Bonilla does not rely on the DJA for jurisdiction; rather, this Court has federal question jurisdiction and/or supplemental jurisdiction over all counts but Count XII. See Colo. River Water Conservation Dist., 424 U.S. at 815 n.21, 96 S.Ct. 1236 (holding that "the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention"). Notably too, although the pension proceedings may resolve many of the claims raised herein, the Pension Board is not a trial court and cannot award compensatory or punitive damages, where applicable, to compensate Bonilla for any constitutional or tort harms he may have suffered. See also Ewart v. State Farm Mut. Auto. Ins. Co., 257 F.Supp.3d 722, 724-25 (E.D. Pa. 2017) (holding that the "absence of parallel state proceedings creates a rebuttable presumption in favor of exercising jurisdiction"). Most significantly for the Court, however, is that since September 2018, the parties have completed discovery, filed dispositive motions, and submitted pretrial documents. The Court therefore exercises its discretion under the DJA over the Complaint.
In response to the City Defendants' Motion for Summary Judgment, see Pl.'s Resp. City Defs.' SJ Mot., ECF No.
Generally, the Court finds Bonilla's arguments unpersuasive. Bonilla has not shown "by affidavit or declaration" specified reasons why he cannot present facts essential to justify his opposition. See Fed. R. Civ. P. 56(d). Although the Court initially granted only thirty days to conduct discovery, it honored the parties' request for an extension of time, and allowed approximately sixty days total for discovery. See ECF Nos. 43, 52. The dispositive motions deadline was also briefly extended, and the parties were granted leave to file supplemental responses to the motions. See ECF No. 64. As Bonilla recognizes, allegations in a complaint are only deemed admitted under Rule 8(b)(6) if "a responsive pleading is required" and because the City Defendants' Motion to Dismiss is still pending, the time to file a responsive pleading has not begun. Compare Fed. R. Civ. P. 8(b)(6); Fed. R. Civ. P. 12(a)(4). Moreover, this case was initiated in 2014. Although motions to dismiss were pending and the case was subsequently stayed, nothing prevented the parties from engaging in discovery. See Fed. R. Civ. P. 26. The basis of the stay was to allow Bonilla to complete the pension proceedings, which relate directly to the claims in the instant action. Thus, the pension proceedings and discovery therein, if any, are relevant to the instant action, thereby limiting the amount of discovery that would need to be conducted in the above-captioned action. However, Bonilla has made little, if any, effort since May 2016 to advance the proceedings before the Pension Board. See Footnote 11, supra. It was this Court's action that revived the case. Bonilla's requests to strike or stay are therefore denied. Nevertheless, because many of the claims are premature, those claims will be disposed of on the motions to dismiss, not summary judgment.
Bonilla's Motion for Partial Summary Judgment, seeking judgment on
Next, Bonilla requests summary judgment on his breach of contract claim. The City Defendants have also moved for summary judgment on this claim. This claim, which is the second count designated as Count IX in the Complaint, see Compl. ¶¶ 152-160, is asserted against the Pension Board and the City. However, the Settlement Agreement (contract) was entered into between Bonilla and the City only. The Pension Board was not a party to the Settlement Agreement. Accordingly, Bonilla's breach of contract claim fails as a matter of law against the Pension Board. See Price v. Foremost Indus., No. 17-00145, 2018 WL 1993378, at *3, 2018 U.S. Dist. LEXIS 70957, at *6 (E.D. Pa. Apr. 26, 2018) ("As a general proposition, a party to a contract may not recover for breach of contract from an entity who is not a party to the contract."). The breach of contract claim is dismissed with prejudice as to the Pension Board. Additionally, summary judgment is entered in favor of the City on this count.
"Under Pennsylvania law, a plaintiff must demonstrate the existence of each of the following elements to establish a breach of contract claim: (1) the existence of a contract; (2) breach of a duty imposed by the contract; and (3) damages caused by the breach." Ruple Builders, Inc. v. Brackenridge Constr. Co., No. 2:17-cv-00004, 2019 WL 109329, at *5-6,2019 U.S. Dist. LEXIS 1316, at *11-12 (W.D. Pa. Jan. 4, 2019) (internal quotations omitted). "Pennsylvania courts apply the `plain meaning rule' of interpretation of contracts which assumes that the intent of the parties to an instrument is embodied in the writing itself, and when the words are clear and unambiguous
Despite Bonilla's assertions to the contrary, the City did not guarantee Bonilla would receive a pension. Rather, the written Settlement Agreement plainly states that the City "
The undisputed evidence shows that the City not take any action before the Pension Board to oppose Bonilla's application. Rather, counsel for the City advised the Pension Board at a meeting on March 13, 2014, that the City was not opposing Bonilla's pension request, but was instead "remaining neutral." See Pl. dep. at Ex. 4, N.T. 5:24-6:20. Although Bonilla suggests in his brief that the City opposed his appeal from the Pension Board's decision, there are no facts that would support such a statement because merely being named, by Bonilla, as the appellee does not show that the City opposed the review of the pension application. Similarly, the City Defendants' motions in the above-captioned action do not establish breach. Bonilla initiated the instant action against the City Defendants seeking, inter alia, monetary damages for alleged statutory, constitutional, and tort violations. Bonilla therefore forced the City to defend itself. The Settlement Agreement, while imposing a duty not to "oppose [a pension] application" or subsequent review, does not impose a duty on the City to simply sit by and allow itself to be sued on a dozen different claims. In the Complaint, Bonilla seeks judgment against all defendants "for no less than 2.5
Additionally, the Settlement Agreement provides that "any such determination [on Bonilla's pension application] is made by an independent agency." See Settlement Agreement § 2(b) (emphasis added). This statement further clarifies the parties' understanding that the City did not guarantee Bonilla a pension. Also, because Bonilla had already filed his application for a disability pension with the Pension Board at the time the Settlement Agreement was executed, see Pl. dep. at Ex. 5, the parties clearly knew that the "independent agency" referenced in the Settlement Agreement was the Pension Board. This language therefore shows that the parties contemplated independent review by the Pension Board. Pursuant to this review, the Pension Board determined that it had no choice but to deny Bonilla's application because he did not have "the opinion of two (2) reputable physicians who have been selected by the Association" that Bonilla is totally disabled, as required by § 143.22(A). There is no evidence that the City amended this or any rule governing pension applications since the execution of the Settlement Agreement. Therefore, regardless of the connection between the City and the Pension Board, the City did not take any action to oppose the pension. Summary judgment is entered in favor of the City as to this claim.
Despite the passage of time since this case was initiated, the majority of Bonilla's claims are still not ripe. "The function of the ripeness doctrine is to determine whether a party has brought an action prematurely, and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine." Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 2003) (internal citations omitted). Most of Bonilla's claims are dependent on the denial of his pension application, but because those proceedings are not complete, a decision on the merits is premature.
Bonilla's arguments to the contrary are unpersuasive. Bonilla contends that because the state court concluded its appellate process, but he has still not obtained a pension, all claims are ripe. See Pl.'s Opp. 2-3. This is incorrect. The state court addressing Bonilla's appeal from the Pension Board reversed and remanded the denial of Bonilla's application for a disability pension to the Pension Board for further proceedings. Those proceedings are ongoing. Thus, a decision on Bonilla's pension application is still pending and judicial review of any claims dependent on the denial of his pension application is premature. See Felmeister v. Office of Attorney Ethics, Div. of N.J. Admin. Office of Courts, 856 F.2d 529, 535 (3d Cir. 1988) (holding that "judicial review is premature when an agency has yet to complete its work by arriving at a definite decision"); Amanto v. Witlin, 544 F.Supp. 140, 142 (E.D. Pa. 1982) (holding that the police officer's due process property deprivation claims arising from the denial of his application for disability benefits were premature because his application was still under review).
In sum, Bonilla's claims that are dependent on the denial of his pension application are not ripe for adjudication. This includes the majority of the claims against the Pension Board Defendants, as well as the procedural due process claim against the City Defendants and aspects of Count III (Failure to Stop Deprivation). To the extent that any claim, or portion thereof, may be ripe, the Court has reviewed the allegations in the Complaint and the documents attached thereto. For the reasons set forth below, these claims are also dismissed.
Count I, alleging retaliation under Title VII, is asserted against the City and the Board only.
To state a prima facie case of retaliation under Title VII or the PHRA, "a plaintiff must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action." Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).
Count I alleges adverse action ranging from conduct related to the formation of the Settlement Agreement and "guarantee of a pension," to procedural due process violations, to delay, and beyond. These alleged adverse actions occurred on numerous dates, over a significant period of time, and Bonilla has failed to allege facts linking the actions to protected activity. See Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (holding that a plaintiff may establish the requisite causal link by proving "either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link" (emphasis added)).
Count V, on the other hand, relies exclusively on the denial of Bonilla's pension application as the adverse action and is therefore premature. Moreover, although § 955(e) of the PHRA contemplates individual liability if the employee aids and abets the unlawful practices, Bonilla has not offered any facts that would show that the individual Defendants aided and abetted the City or the Pension Board in retaliatory or discriminatory actions. See Dici v. Pennsylvania, 91 F.3d 542, 552-53 (3d Cir. 1996) (finding that the plaintiff failed to present facts to indicate that the individual defendant aided or abetted the plaintiff's employer). Bonilla has also failed to allege facts to support a discrimination claim under the PHRA.
Counts I and V are dismissed without prejudice.
According to the Complaint, Counts II and VI, and the first Count IX (Compl. ¶¶ 137-142) are asserted against all Defendants and allege violations of Bonilla's rights to free speech and to petition under the First Amendment and the Pennsylvania Constitution.
"To make out a First Amendment retaliation claim under 42 U.S.C. § 1983 [as Bonilla asserts in Count II], a plaintiff must establish: (1) he engaged in First Amendment protected activity, (2) the defendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by the plaintiff's protected activity." Rossiter v. City of Philadelphia, 674 F. App'x 192, 196 (3d Cir. 2016) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d
Bonilla's alleged protected activity was speaking out at a Board meeting in April 2014, and filing an EEOC complaint and a federal lawsuit against the City. The alleged adverse actions include the denial of his pension, due process violations, and breach. To the extent the alleged adverse action is the denial of Bonilla's pension application, the claims are premature. All three counts also fail to state a claim.
As to the free speech aspects of these counts, the claims fail as a matter of law because Bonilla's speech on April 7, 2014, did not involve a matter of public concern. See Rowan v. City of Bayonne, 474 F. App'x 875 (3d Cir. 2012) (concluding that the plaintiff's complaints against the city were not protected speech because he complained about isolated acts by the city, which were directed solely at him, and therefore not a matter of "public concern"); Miles v. City of Phila., No. 11-4040, 2011 WL 4389601, at *4, 2011 U.S. Dist. LEXIS 107499, at *11-12 (E.D. Pa. Sep. 21, 2011) (dismissing the plaintiff's First Amendment retaliation claims because even if the plaintiff spoke out about discrimination by government officials, her speech was made to advance only her own interests and did not implicate the defendants in a pattern of conduct directed at anyone other than her). Bonilla's relentless continuation of his speech and petitioning also makes the Court question whether Defendants took any activity sufficiently adverse to deter a person of ordinary firmness from exercising his rights. Moreover, as with the Title VII and PHRA claims, Bonilla failed to sufficiently allege that Defendants' conduct was prompted or motivated by his protected activity.
Counts II and VI, and the first Count IX are dismissed. Except for the requests for monetary damages under the Pennsylvania Constitution, see Kornegey v. City of Phila., 299 F.Supp.3d 675, 685 (E.D. Pa. 2018) (dismissing claims for monetary damages for alleged violations under the Pennsylvania Constitution because "federal courts have adhered to the reasoning of the Commonwealth Court in refusing to recognize such claims for money damages" (citing Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006)), the claims are dismissed without prejudice.
Count III ("Fail to Stop Deprivation") is purportedly a Fourteenth Amendment claim against all Defendants. The Complaint alleges that the City Defendants failed to stop the Pension Board Defendants from denying Bonilla's constitutional and contract rights, and could have taken legislative action to stop the
This count fails to state any discernable claim for relief, as the Fourteenth Amendment does not protect contract rights, nor does it impose an affirmative duty on a municipality to take legislative action to protect one's contract rights. Count III is therefore dismissed.
If the Court limits its consideration to the allegations in the Complaint, it would dismiss the claim with prejudice because there are no conceivable amendments that could save the woeful deficiencies therein. However, in deciding whether an amendment is futile, the Court can consider the parties' briefs. Fortunately for Bonilla, in his opposition to the City Defendants' Motion for Summary Judgment, he clarifies that Count III is a supervisor liability claim under Monell.
Count IV, while not as deficient as Count III, is similarly mislabeled. The title of the count references 42 U.S.C. §§ 1983 and 1985, the Fourteenth Amendment, equal protection, due process, and conspiracy to deprive rights. The allegations therein allege violations of Bonilla's procedural due process rights by the Pension Board. See Compl. ¶¶ 110-114. There are no conspiracy allegations, which a claim under 42 U.S.C. § 1985 requires, nor any facts pertaining to equal protection. To the extent that this count asserts a procedural due process claim, it is dismissed as premature. To the extent that it attempts to allege anything else, it fails to state a claim. See, e.g. Thompson v. City of Chester, No. 14-1510, 2015 WL 667484, at *5, 2015 U.S. Dist. LEXIS 18572, at *12 (E.D. Pa. Feb. 17, 2015) (dismissing the plaintiff's § 1985 claims against a municipality because there was no co-conspirator) (citing Sarteschi v. Commonwealth, No. 1:06-CV-02332, 2007 WL 1217858, at *5, 2007 U.S. Dist. LEXIS 102492, at *11 (M.D. Pa. Apr. 5, 2007) (holding that "a § 1985(3) claim can be based on a conspiracy among officers of a single entity but can not [sic] be based on a conspiracy among the entity and its officers unless the officers acted in a personal capacity or unless independent third parties are alleged to have joined the conspiracy"))); Moles v. Griffy, No. 00-2147, 2001 WL 1152984, at *4-5, 2001 U.S. Dist. LEXIS 15867, at *14 (E.D. Pa. Sep. 18, 2001) ("Plaintiff's inability to sustain his First Amendment retaliation claim under § 1983 against the defendants individually necessarily causes his § 1985 conspiracy claim, grounded in the same underlying action by the defendants, to fail."). Count IV is dismissed.
Count VII is a procedural due process claim against the Pension Board Defendants
Count VIII, which appears after the first Count IX, see Compl. ¶¶ 106-109, seeks equitable enforcement of a contract against all Defendants. However, Bonilla alleges throughout the complaint that there is a written Settlement Agreement on the pension issue and even attached a copy of the written agreement to the Complaint. Accordingly, the unjust enrichment claim is dismissed with prejudice. See Curley v. Allstate Ins. Co., 289 F.Supp.2d 614, 619 (E.D. Pa. 2003) ("Pennsylvania law has long recognized that the doctrine of unjust enrichment is unavailable where, as here, the relationship between parties is founded on a written agreement or express contract." (internal quotations omitted)); Titelman v. Rite Aid Corp., No. 00-2865, 2001 U.S. Dist. LEXIS 24049, at *19-20 (E.D. Pa. Nov. 9, 2001) ("The Supreme Court of Pennsylvania has concluded that the quasi-contractual doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded on a written agreement or express contract'" (quoting Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 259 A.2d 443, 448 (1969))).
For the reasons set forth in Section C above, the Pension Board is dismissed with prejudice and summary judgment is entered in favor of the City as to the second count designated as Count IX, see Compl. ¶¶ 152-160, alleging breach of contract.
Count X, alleging fraud, is asserted against the City only. The Complaint alleges that the City's attorneys in the employment-discrimination lawsuit intentionally made deceptive and deceitful representations to Bonilla that he would receive a pension, in an attempt to induce him to rely on the representations and dismiss the lawsuit. See Compl. ¶¶ 161-168.
The City is immune from tort claims under Pennsylvania's Political Subdivision Tort Claims Act ("PSTCA"), 42 Pa. C.S. §§ 8541-8564. Further, none of the eight exceptions allowing for liability based on negligent acts apply here. See Holmes v. City of Phila., No. 05-2909, 2005 WL 1875524, at *3, 2005 U.S. Dist. LEXIS 16116, at *8 (E.D. Pa. Aug. 4, 2005) (dismissing all state law torts against the city based on the PSTCA). Count X is therefore dismissed with prejudice. See ACMAT Corp. v. Sch. Dist., No. 85-7067, 1988 WL 138707, at *1, 1988 U.S. Dist. LEXIS 14612 at *3 (E.D. Pa. Dec. 21, 1988) (concluding that the negligence claims were barred as a matter of law pursuant to the PSTCA and that "[a]ny basis for recovery on the plaintiff's contracts must be based on contract law, not tort law").
Count XI, alleging tortious interference with contract claim, against the Pension Board Defendants fails to state a claim because the allegations are insufficient to show that the Pension Defendants caused a breach, see Glazer v. Chandler, 414 Pa. 304, 307, 200 A.2d 416, 418 (1964)
Because there are no claims remaining against any Defendant, Count XII, seeking declaratory relief, is dismissed without prejudice.
In its discretion and considering the parties' filings over the past few months, the Court exercises jurisdiction over the Complaint. Bonilla's claims are largely dependent on his allegations that the City guaranteed him a pension. Based on the plain language of the written Settlement Agreement, which is attached to the Complaint and as an exhibit to the summary judgment motions, this allegation is not true. The undisputed evidence shows that City agreed only that it would not oppose Bonilla's pension application, and there is no evidence of breach. The breach of contract claim, which is the first Count IX, is ripe for summary judgment and judgment is entered in favor of the City. The motions for summary judgment are otherwise denied. Instead, all claims are disposed of on the motions to dismiss. The following counts are dismissed without prejudice,
A separate order will be issued.
The Police Pension Fund Association shall have the right, on application received, to retire on pension any officer or employee accepting the provisions of this Ordinance, if in its opinion and in the opinion of two (2) reputable physicians who have been selected by the Association, who shall make a physical examination and file their opinions in writing with the Association ... that such officer is totally disabled, through injury received or disease contracted in the actual performance of duty and by reason of the performance of such duty without fault or misconduct on their part....
Ex. C at § 143.22(A).
