Bird v. Borough of Moosic

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

HEATHER BIRD,

Plaintiff, CIVIL ACTION NO. 3:20-cv-00337

v. (SAPORITO, M.J.)

BOROUGH OF MOOSIC, et al.,

Defendants.

MEMORANDUM

This is a civil rights action brought pursuant to 42 U.S.C. § 1983.

The plaintiff, Heather Bird, is a part-time police officer for one of the two

named defendants, the Borough of Moosic. Bird was injured on the job

and applied for temporary disability benefits under the Pennsylvania

Heart and Lung Act, 53 P.S. § 637. On September 10, 2019, the second of

two named defendants, James Segilia, mayor of the Borough, summarily

denied her application for Heart and Lung benefits.

On February 25, 2020, appearing through counsel, the plaintiff

commenced this civil rights action by filing a complaint. (Doc. 1.) In her

complaint, the plaintiff claims that this summary denial of her Heart and

Lung Act benefits application violated her Fourteenth Amendment

procedural due process rights because she was deprived of a property

interest without the requisite pre- or post-deprivation due process—that

is, she was denied her Heart and Lung benefits without being provided

with adequate notice, an explanation of the evidence upon which the

Borough based its denial, or an opportunity to present her side of the

story.

On March 17, 2020, the Borough moved to dismiss the complaint

for failure to state a claim upon which relief can be granted, together with

a brief in support of the motion. (Doc. 6.) On March 18, 2020, Bird filed a

brief in opposition to the borough’s motion. (Doc. 7.) On March 19, 2020,

Segilia filed a motion joining in the Borough’s motion to dismiss, adopting

its brief in support as his own. (Doc. 9.) On March 23, 2020, Bird filed a

brief in opposition to the mayor’s motion, which was identical to her brief

in opposition to the borough’s motion.1 (Compare Doc. 12 with Doc. 7.) On

March 31, 2020, Segilia filed a reply brief. (Doc. 14.) Both motions are

ripe for decision.

I. BACKGROUND

Based on the complaint and attached exhibits, the plaintiff is a

1 We have been unable to ascertain any difference between the two

briefs other than the date and the recipients listed on the certificate of

service.

part-time police officer for the Borough of Moosic. At some point on or

before August 30, 2019, Bird was injured on the job. As she exited a police

department trailer, she fell over some “police cones,” landing on

pavement and injuring her left knee. On August 30, 2019, Bird submitted

an application to the Borough for Heart and Lung benefits.2 At the time

of her application, she was scheduled to undergo knee surgery in October

2019, with an expectation that she would require post-surgery physical

therapy as well.

On September 10, 2019, Bird’s application for Heart and Lung

benefits was summarily denied by the mayor, defendant Segilia. Other

than his one-word comment (“Denied”) on the face of Bird’s application

form, the complaint alleges that the Borough failed to provide any notice

of the denial of her application, any explanation of the evidence upon

which the Borough based its denial, or any opportunity to present her

side of the story prior to denial.

The parties’ briefs and other filings reference and attach other

2 Under the Heart and Lung Act, police officers and certain other

state and local officials are entitled to receive their full salary and certain

medical benefits if injured in the performance of their duties. See

generally 53 P.S. § 637.

materials outside the pleadings, including records of administrative

proceedings that occurred after the complaint was filed and the

transcript of a deposition taken in discovery in this case. But we have

excluded and decline to consider these additional materials in connection

with the defendants’ Rule 12(b)(6) motions. See Fed. R. Civ. P. 12(d).

II. LEGAL STANDARDS

A. Rule 12(b)(1) Standard

The plaintiff bears the burden of establishing the existence of

subject matter jurisdiction when challenged under Rule 12(b)(1).3 See

Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

A defendant may challenge the existence of subject matter jurisdiction in

3 The defendants argue that this Court should decline to exercise

jurisdiction over this action pursuant to the Burford abstention doctrine.

“There is some dispute as to whether a . . . Burford abstention argument

should be raised under Rule 12(b)(1) or Rule 12(b)(6).” M.D. v. Perry, 799

F. Supp. 2d 712, 715 n.3 (S.D. Tex. 2011). But courts have often “favor[ed]

Rule 12(b)(1) when evaluating Burford abstention.” Id.; see also Sullivan

v. Saint-Gobain Performance Plastics Corp., 226 F. Supp. 3d 288, 294 n.5

(D. Vt. 2016) (“Although a decision to abstain is not necessarily a

conclusion that the court lacks jurisdiction, a motion to dismiss based on

the abstention doctrine may be analyzed under Rule 12(b)(1).” (internal

quotation marks and brackets omitted)); Kendall-Jackson Winery, Ltd. v.

Branson, 82 F. Supp. 2d 844, 853 (N.D. Ill. 2000) (“A Rule 12(b)(1) motion

to dismiss for lack of subject matter jurisdiction is the appropriate

mechanism for raising abstention issues.”). We shall do likewise here.

one of two fashions: it may attack the complaint on its face or it may

attack the existence of subject matter jurisdiction in fact, relying on

evidence beyond the pleadings. See Gould Elecs. Inc. v. United States, 220

F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks a complaint

as deficient on its face, “the court must consider the allegations of the

complaint as true.” Mortensen, 549 F.2d at 891. “In deciding a Rule

12(b)(1) facial attack, the court may only consider the allegations

contained in the complaint and the exhibits attached to the complaint;

matters of public record such as court records, letter decisions of

government agencies and published reports of administrative bodies; and

‘undisputably authentic’ documents which the plaintiff has identified as

a basis of his claims and which the defendant has attached as exhibits to

his motion to dismiss.” Medici v. Pocono Mountain Sch. Dist., No. 09-CV-

2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010). However, when

a motion to dismiss attacks the existence of subject matter jurisdiction in

fact, “no presumptive truthfulness attaches to plaintiff’s allegations,” and

“the trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” Mortensen, 549 F.2d at 891. This

case falls into the former category.

B. Rule 12(b)(6) Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The defendants have moved to dismiss on two separate grounds.

First, they argue that we should abstain from exercising jurisdiction over

this case pursuant to the Burford abstention doctrine.4 Second, they

argue that the plaintiff’s due process claim should be dismissed for failure

to state a claim because she lacked a protected property interest.

A. Burford Abstention

The defendants contend that this action should be dismissed

pursuant to the Burford abstention doctrine. As the Supreme Court of

the United States has stated, however, “[a]bstention from the exercise of

federal jurisdiction is the exception, not the rule.” Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). “Abstention

4 See generally Burford v. Sun Oil Co., 319 U.S. 315 (1943).

rarely should be invoked, because the federal courts have a ‘virtually

unflagging obligation . . . to exercise the jurisdiction given them.’”

Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (quoting Colorado

River, 424 U.S. at 817).

“Burford is concerned with protecting complex state administrative

processes from undue federal interference . . . .” New Orleans Pub. Serv.

Inc. v. Council of New Orleans, 491 U.S. 350, 362 (1989) [hereinafter,

NOPSI]. “The purpose of Burford [abstention] is to avoid federal

intrusion into matters of local concern and which are within the special

competence of local courts.” Hi Tech Trans, LLC v. New Jersey, 382 F.3d

295, 303–04 (3d Cir. 2004) (internal quotation marks omitted). The

Burford abstention doctrine provides that:

Where timely and adequate state-court review is

available, a federal court sitting in equity must decline

to interfere with the proceedings or orders of state

administrative agencies: (1) when there are “difficult

questions of state law bearing on policy problems of

substantial public import whose importance transcends

the result in the case then at bar”; or (2) where the

“exercise of federal review of the question in a case and

in similar cases would be disruptive of state efforts to

establish a coherent policy with respect to a matter of

substantial public concern.”

NOPSI, 491 U.S. at 361 (quoting Colorado River, 424 U.S. at 813).

But this is not an appropriate case for Burford abstention.

The Burford abstention doctrine applies where a case

involves both difficult, complex questions of state law

and administration of a state law by a scheme of state

administrative agencies. When this is the case,

involvement by the federal courts may cause confusion,

and disrupt the state’s efforts to establish a coherent,

uniform policy to solve a complex local problem. The

danger which Burford abstention avoids is the prospect

of a case being decided differently depending on whether

it was heard by state officials and judges or by federal

judges. In such a situation, a federal court could

potentially undermine the state’s administrative

process.

F.D.I.C. v. Sweeney, 136 F.3d 216, 219 (1st Cir. 1998).

Here, there is no complex administrative scheme to disrupt, nor any

difficult or complex questions of state law, nor any effort by the state to

establish a coherent or uniform policy to solve a complex local problem.

The legal issues presented are straightforward—we are tasked with the

interpretation of a simple statute to determine if state law conferred upon

the plaintiff a property interest protected by due process—and there is

no unified state administrative apparatus—the law regarding Heart and

Lung benefits is separately administered by no fewer than ten state

agencies,5 67 counties, and 2,560 municipalities. See id. (“The legal

issues in this case are straightforward, and there is no unified state

administrative apparatus to disrupt.”); see also Doe v. Hirsch, 731 F.

Supp. 627, 631 n.3 (S.D.N.Y. 1990) (“Because there does not exist here a

complex administrative scheme, as in Burford, but instead a simple and

straightforward state law, . . . I decline to abstain under Burford.”).

Accordingly, we decline to abstain under Burford.

B. Protected Property Interest

The plaintiff brings this civil rights action under 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

5 In addition to municipal police officers and firefighters and county

sheriffs and deputy sheriffs, the Heart and Lung Act provides benefits to

select officials employed by the state police, the state liquor control board,

the state probation and parole board, the state capitol police; the state

department of corrections, the state department of human services, the

state attorney general’s office, the Delaware River Port Authority police

force, the state game commission, and the state fish and boat commission,

as well as firefighters employed by any state agency. See 53 P.S. § 637.

proper proceeding for redress . . . .

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983

claim, a plaintiff must establish that the defendants, acting under color

of state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).

Here, the plaintiff claims that the defendants violated her

Fourteenth Amendment procedural due process rights when they

summarily denied her application for Heart and Lung benefits without

adequate notice, an explanation of the evidence upon which the Borough

based its denial, or an opportunity to present her side of the story.6 The

defendants move to dismiss for failure to state a claim, arguing that, as

6 In addition to these requirements, the plaintiff suggests in her

complaint that due process may require a full-fledged adversarial

hearing, even if only an informal one. But see infra note 9.

a part-time police officer, Bird was not eligible for Heart and Lung

benefits and thus had no property interest protected by the Fourteenth

Amendment’s Due Process Clause.7

A plaintiff “who seeks to establish a procedural due process claim

must demonstrate that (1) [she] was deprived of an individual interest

that is encompassed within the Fourteenth Amendment’s protection of

‘life, liberty, or property,’ and (2) the procedures available to [her] did not

provide ‘due process of law.’” Biliski v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 574 F.3d 214, 219 (3d Cir. 2009) (internal quotation marks

omitted). The mere deprivation of an interest protected by the Due

Process Clause “is not in itself unconstitutional; what is unconstitutional

is the deprivation of such an interest without due process of law.”

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (emphasis in original).8

7 We note that the defendants’ argument relies heavily on a

representation by counsel in their briefs that, as a part-time police officer,

Bird worked on a variable or “as-needed” basis for an hourly wage,

without a fixed salary or a work schedule with a guaranteed minimum

number of hours of work. But these representations do not reflect the

facts alleged in the pleadings, which state only that Bird was a part-time

police officer. The specific details of her compensation or work schedule

are not alleged, and we have excluded and declined to consider all matter

outside the pleadings. See Fed. R. Civ. P. 12(d).

8 We note that the defendants do not argue at this stage that Bird

received all the process that was due. They address only the first prong

The Supreme Court of the United States has held that property

interests created by state law are protected by the Due Process Clause of

the Fourteenth Amendment. See Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 577 (1972).

To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it.

He must have more than a unilateral expectation of it.

He must, instead, have a legitimate claim of entitlement

to it. . . . Property interests, of course, are not created by

the Constitution. Rather, they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent source

such as state law—rules or understandings that secure

certain benefits and that support claims of entitlement

to those benefits.

Id.

As we have previously recognized, the Pennsylvania Heart and

Lung Act, 53 P.S. § 637, “provides for full salary and fringe benefit

compensation of police officers injured in the performance of their duties.

It provides compensation only for persons who are temporarily

incapacitated, and does not apply where a disability is total or

permanent.” Kegolis v. Borough of Shenandoah, No. 3:03-CV-0602, 2006

of the test set forth above, arguing that the requirements of procedural

due process do not apply because Bird lacked any protected property

interest in Heart and Lung benefits.

WL 3814311, at *4 (M.D. Pa. Dec. 27, 2006). The Act “gives municipal

police officers a property interest in, and an entitlement to, disability

benefits for temporary injuries by obligating municipalities to pay them.”

Griffin v. Municipality of Kingston, Civil Action No. 3:08-cv-2290, 2009

WL 1794775, at *8 (M.D. Pa. June 23, 2009); see also Kegolis, 2006 WL

3814311, at *5 n.10 (“An injured police officer receiving Heart and Lung

Act benefits has a constitutionally protected property right in those

benefits.”). Once the injured police officer begins receiving benefits, we

have held that “Heart and Lung Act benefits may not be terminated

without conducting a full due process hearing in which the employer

establishes one of two bases of termination: (1) claimant is able to return

to work because their disability has ceased, or (2) claimant’s disability is

permanent as opposed to only temporary.” Kegolis, 2006 WL 3814311, at

*5 n.10.

The plaintiff in this case, however, never received Heart and Lung

benefits—the purported deprivation of a protected property interest was

not termination of disability benefits, but the denial of her application for

benefits in the first instance. The parties have not briefed the question of

what sort of process, if any, is required in connection with an initial

denial of benefits such as this.9 Instead, their focus has been solely on the

question whether Bird had a property interest in Heart and Lung

benefits. The defendants contend that she did not because she is

ineligible to receive Heart and Lung benefits under the terms of the

statute, and thus procedural due process protections were not triggered.10

In relevant part, the Heart and Lung Act provides that:

any policeman, fireman or park guard of any county,

city, borough, town or township . . . who is injured in the

performance of [her] duties . . . , and by reason thereof

9 Considering a similarly postured claim challenging an initial

denial of Heart and Lung benefits, our sister court has held that “the due

process clause requires that a public employee, such as [the plaintiff

police officer], be given notice of the charges against her, an explanation

of the employer’s evidence, and an opportunity to present her side of the

story.” Russell v. City of Philadelphia, Civil Action No. 13-3151, 2016 WL

4478764, at *8 (E.D. Pa. Aug. 25, 2016) (quoting McDaniels v. Flick, 59

F.3d 446, 454 (3ed Cir. 1995)) (brackets and internal quotation marks

omitted).

10 An injured police officer does not have a constitutionally

protected property interest in Heart and Lung benefits to which she is

not entitled. See Gilotty v. Twp. of Moon, 846 A.2d 195, 199–200 (Pa.

Commw. Ct. 2004) (permanently disabled police officer not eligible for

Heart and Lung benefits, which are provided only to those who are

temporarily incapacitated); Breyan v. Dep’t of Conservation & Nat. Res.,

202 A.3d 168, 171 (Pa. Commw. Ct. 2019) (DCNR ranger was not eligible

for Heart and Lung benefits because he was not employed by a

municipality or any state agency named in the statute, and thus he had

no cognizable property interest in Heart and Lung benefits). See

generally Roth, 408 U.S. at 577 (“To have a property interest in a benefit,

a person clearly must . . . have a legitimate claim of entitlement to it.”)

(emphasis added).

is temporarily incapacitated from performing [her]

duties, shall be paid . . . by the county, township or

municipality, by which [she] is employed, [her] full rate

of salary, as fixed by ordinance or resolution, until the

disability arising therefrom has ceased. All medical and

hospital bills, incurred in connection with any such

injury, shall be paid . . . by such county, city, township

or municipality.

53 P.S. § 637(a)(10). As the Supreme Court of Pennsylvania has observed:

[T]he Heart and Lung Act covers specified public

employees engaged primarily in police work,

firefighting, or other jobs involving public safety. The

Act was created to ensure that, if these employees were

injured or otherwise disabled in the course of carrying

out their hazardous duties, they would be guaranteed

continued full income until their return to duty. The

best interest of the municipality and not the disabled

officer was the prime consideration prompting its

enactment. Efficient firemen and police officers must

take chances; the performance of their duties are

hazardous. The prospect of uninterrupted income

during periods of disability well may attract qualified

persons to these vocations.

City of Erie v. W.C.A.B. (Annunziata), 838 A.2d 598, 603 (Pa. 2003)

(emphasis in original) (citations, brackets, ellipses, and internal

quotation marks omitted). The primary benefit is payment of the injured

officer’s full, fixed salary while temporarily disabled, and Pennsylvania

appellate courts have strictly construed the statute and held that this

benefit does not include vacation pay, overtime, or other variable

compensation above the injured officer’s fixed base salary. See id.

(vacation and overtime pay excluded); Horner v. Borough of California,

698 A.2d 1360, 1361–62 (Pa. Commw. Ct. 1997) (vacation pay excluded);

Schmidt v. Borough of Stroudsburg, 670 A.2d 208, 209–10 (Pa. Commw.

Ct. 1996) (overtime pay excluded).

The defendants argue that Bird was not entitled to due process

prior to denial of her benefits application because she lacked any

cognizable property interest in Heart and Lung benefits. Their argument,

however, relies on a premise not gleaned from the complaint—that Bird,

as a part-time police officer, worked variable hours on an “as-needed”

basis at an hourly wage, with no fixed salary or schedule and no

minimum number of hours guaranteed. While the evidence adduced by

the parties through discovery might ultimately bear this out, we cannot

rely on the representations of defense counsel or other matter outside the

pleadings in considering the Rule 12(b)(6) motions currently before us.

See Fed. R. Civ. P. 12(d).11 As the facts are pleaded in the complaint, there

11 In any event, we note that state appellate case law suggests that

a police officer’s part-time status is not dispositive of this “salary”

question. Under the Heart and Lung Act, even though an employee may

be paid on an hourly basis, if that employee has an established and

regular work schedule (e.g., a 40-hour workweek), her “salary” may be

is simply no basis for us to accept the defendants’ premise and dismiss

the plaintiff’s complaint for failure to state a claim upon which relief can

be granted.

Moreover, even if we were to accept the extrinsic factual premise

underlying the defendants’ argument—that a part-time police officer

does not receive any fixed salary compensable under the Heart and Lung

Act—it would not be dispositive of the plaintiff’s claim that she had a

property interest in Heart and Lung benefits. While the Heart and Lung

Act provides for payment of an injured police officer’s full salary while

temporarily incapacitated, that is not the only benefit to which she is

entitled under the Act. The defendants have overlooked the following

sentence in the statute, which confers an entitlement to medical benefits

as well. See 53 P.S. § 637(a) (“All medical and hospital bills, incurred in

connection with any such injury, shall be paid . . . by such county, city,

determined by multiplying the number of her regularly scheduled hours

times her hourly wage. See Celi v. Dep’t of Pub. Welfare, 869 A.2d 1045,

1048–49 (Pa. Commw. Ct. 2004) (construing Act 534); see also id. at 1048

(noting that Act 534 and the Heart and Lung Act have nearly identical

payment provisions). It appears to remain an open question, however,

whether an hourly employee with a variable schedule and no set

minimum number of hours has any “salary” at all. Annunziata, Horner,

and Schmidt suggest that such an employee would have no salary at all

as the term is used in the Heart and Lung Act.

township or municipality.”).12 Bird’s application for Heart and Lung

benefits, which is attached as an exhibit to the complaint, clearly states

that Bird’s injuries required professional medical treatment, including

surgery and physical therapy. We find it reasonable to infer that this

medical treatment came at some expense, for which the Heart and Lung

Act would appear to obligate the Borough to pay, a benefit to which Bird

is entitled under the Act.

Accordingly, we decline to dismiss the complaint for failure to state

12 The defendants have cited to a state trial court decision, in which

that court found a part-time police officer was entirely ineligible for Heart

and Lung benefits because he was paid a variable salary with a variable

work schedule. See Davies v. Taylor Borough Council, No. 15 CV 7494,

slip op. (Lackawanna Cty. (Pa.) C.C.P. July 27, 2016) (Doc. 6-1). The

Davies court appears to have overlooked this provision as well, perhaps

because there were no compensable medical expenses. Regardless, the

Davies decision is not binding on this Court, and we find it inapposite to

the facts pleaded in this case, where medical expenses were clearly

incurred. See Edwards v. HOVENSA, LLC, 497 F.3d 355, 361 (3d Cir.

2007) (noting that a federal court considering a state-law issue is bound

to follow state law as announced by the highest state court and, in the

absence of a controlling decision by the highest state court, state

intermediate appellate decisions are datum for predicting what the

highest state court would decide); Schleinkofer v. Nat’l Cas. Co., 339 F.

Supp. 2d 683, 686 (W.D. Pa. 2004) (“In interpreting state statutes, only

decisions of the state’s highest court are binding upon federal

courts . . . .”); Allegheny Ludlum, LLC v. Liberty Mut. Ins. Co., ___ F.

Supp. 3d ____, 2020 WL 6361858, at *4 (W.D. Pa. Sept. 17, 2020)

(“Although the opinions of other state courts and federal courts applying

Pennsylvania law are helpful, they are merely persuasive authorities.”).

a claim upon which relief can be granted.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motions to dismiss (Doc.

6; Doc. 9) will be denied.

An appropriate Order follows.

Dated: December 28, 2020 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge