Werkheiser v. Pocono Twp., CIVIL ACTION NO. 3:CV-13-1001

HAROLD WERKHEISER, Individually and in his OfficialCapacity as a Supervisor of Pocono Township, Plaintiff,

v. POCONO TOWNSHIP, FRANK HESS, Supervisor,and HENRY BENGEL, Supervisor, Defendants.

CIVIL ACTION NO. 3:CV-13-1001

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: August 8, 2013

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court is Defendants Pocono Township, Frank Hess, and Henry Bengel's Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 9.) Plaintiff Harold Werkheiser is an elected Supervisor and former Roadmaster of Pocono Township. He contends that he was not reappointed Roadmaster because he engaged in protected First Amendment conduct and that his replacement was appointed in violation of Pennsylvania's Second Class Township Code and the Sunshine Act. In their motion to dismiss, Defendants argue that the Amended Complaint fails to state claims for First Amendment retaliation or violation of the Sunshine Act. Individual Defendants also assert that they are entitled to absolute legislative and qualified immunity. Because the Amended Complaint adequately states claims for First Amendment retaliation and violation of the Sunshine Act and individual Defendants are not entitled to absolute legislative or qualified immunity based on the facts as alleged by Plaintiff, the motion to dismiss will be denied.

I. Background

The Amended Complaint alleges the following:

Plaintiff Harold Werkheiser ("Werkheiser") is an elected official serving on the three-member Board of Supervisors of Pocono Township. (Am. Compl., ¶ 2.) Defendants Frank Hess ("Hess") and Henry Bengel ("Bengel") are the other elected Pocono Township Supervisors. (Id. at ¶ 4.) Werkheiser was elected to a six-year term as Supervisor in 2007, Hess was elected to a six-year term in 2009, and Bengel was elected to a six-year term in 2011. (Id. at ¶¶ 2, 4.) Defendant Pocono Township (the "Township") is a Second Class Township within the County of Monroe, Pennsylvania. (Id. at ¶ 3.)

Township Supervisors are permitted to hold positions of employment, such as Roadmaster, with the Township. (Id. at ¶ 6.) After thirteen (13) years of service on the Township road crew, Werkheiser was appointed Roadmaster in 2008. (Id. at ¶ 7.) He was reappointed as Roadmaster every year thereafter through and including 2012. (Id. at ¶ 7.)

When Hess campaigned for Supervisor in 2009, he ran on a platform of fiscal change. (Id. at ¶ 8.) He claimed if he was elected he would work for the Township without wages, performing administrative duties consistent with his years operating a plumbing business. (Id.) Bengel campaigned on a similar platform, and he pledged not to accept employment with the Township. (Id. at ¶ 9.) When Bengel was elected, he filled Jane Cilurso's seat on the Board of Supervisors. (Id. at ¶ 10.) Jane Cilurso was the primary administrator of the Township at that time Bengel was elected. (Id.)

Hess began receiving wages in 2011, and in 2012 he took over the administrative duties formerly performed by Jane Cilurso. (Id. at ¶ 11.) Hess receives approximately $36,000 per year in salary, health insurance, and other employee benefits, and he has the titles of Chairman of the Board of Supervisors, Secretary, and Treasurer. (Id.)

Hess became temporarily disabled in January 2012, and he took leave from the Township for ten days. (Id. at ¶ 12.) During his absence, Frank Froio ("Froio") assumed Hess's administrative duties without appointment by the Board of Supervisors. (Id.) Froio was selected by a consultant to the Township, Richard Manfredi. (Id.) On February 6, 2012,Bengel made a motion, seconded by Hess, to hire Froio as Township Administrator. (Id. at ¶ 14.) Froio's compensation was set at $45.00 per hour for thirty (30) hours per week, approximately $70,000 annually. (Id.) Werkheiser voted against the motion, but the motion carried. (Id.)

As Froio's position developed, Hess's responsibilities and workload decreased. (Id. at ¶ 15.) Hess, however, continued to collect approximately the same compensation. (Id.)

Werkheiser voiced his objection to the cost to the Township and the creation of a new position with more expense. (Id. at ¶ 16.) Werkheiser also objected to paying Hess when his duties were being performed by Froio. (Id.) Werkheiser similarly opposed the appointment of an outside grant writer on the basis that grant-writing should be performed by Froio and Hess. (Id.)

Thereafter, in or about December 2012, Hess and Bengel decided to replace Werkheiser as Roadmaster by denying him annual reappointment for 2013. (Id. at ¶ 17.) Although the termination of Werkheiser and appointment of Bengel as Roadmaster/Director of Public Works was formally accomplished at a noticed reorganization meeting on January 7, 2013, deliberations and decisions occurred outside of that meeting. (Id. at ¶ 28.)

On December 14, 2012, at a meeting at Bengel's home, Bengel gave Hess a letter stating his interest in becoming Roadmaster. (Id. at ¶ 29.) Werkheiser was not at the meeting at Bengel's home, nor was he provided a copy of the letter. (Id. at ¶¶ 29-30.) Hess and Bengel then confided their plan to appoint Bengel as Roadmaster with other Township officials, including Froio and Township attorneys Jeffrey Durney and Jeffrey Stewart. (Id. at ¶ 31.)

On December 18, 2012, Hess and Froio met with Stewart to discuss whether Werkheiser would have the right to return to a position on the road crew if he was not reappointed Roadmaster. (Id. at ¶ 32.) Werkheiser was not made aware of this meeting.(Id.) Bengel also discussed with Durney whether he could vote for himself for the Roadmaster position. (Id. at ¶ 33.) Upon confirming that he could vote for himself, Bengel resigned from his private employment. (Id.) Thereafter, at the January 7, 2013 reorganization meeting, Werkheiser was replaced as Roadmaster by Bengel. (Id. at ¶¶ 28, 34.) But Bengel and Hess did not disclose at the meeting their private deliberations and predetermination to appoint Bengel as Roadmaster. (Id. at ¶ 34.)

As a result of the foregoing, Plaintiff commenced the action in the Court of Common Pleas of Monroe County, Pennsylvania. On April 18, 2013, Defendants removed the action to this Court, and Werkheiser subsequently filed the Amended Complaint. The Amended Complaint asserts claims for First Amendment retaliation (Count I) and violation of the Second Class Township Code and Pennsylvania Sunshine Law (Count II). With respect to the First Amendment retaliation claim, Werkheiser contends that "[s]peech about overpayment for administrative duties was unrelated to the job of Roadmaster, and plaintiff's speech on these subjects was as a citizen and Supervisor responsible for the governance of the Township." (Am. Compl., ¶ 19.) This speech was a substantial and motivating factor in the decision to replace him as Roadmaster with Bengel. (Id. at ¶ 18.)

As to Count II, Werkheiser claims that Hess and Bengel violated the Second Class Township Code and the Sunshine Law by deliberating and taking action on the Roadmaster position as a partial board without notice to the public or himself as the third Supervisor. (Id. at ¶ 27.)

On May 31, 2013, Defendants filed a motion to dismiss the First Amendment retaliation and Pennsylvania Sunshine Act claims. (Doc. 9.) Werkheiser filed a brief in opposition to the motion to dismiss on June 17, 2013 (Doc. 11), and Defendants filed a reply brief in further support of their motion to dismiss on July 1, 2013. (Doc. 13.) Therefore, the motion to dismiss has been fully briefed and is ripe for disposition.

II. Discussion

A. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The statement required by Rule 8(a)(2) must "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such, "[t]he touchstone of the pleading standard is plausability." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The inquiry at the motion to dismiss stage is "normally broken into three parts: (1)identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a...