Trethaway v. Pizano

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SCOTT TRETHAWAY, : Civ. No. 3:23-CV-1523

:

Plaintiff, :

:

v. : (Magistrate Judge Bloom)

:

JOSEPH PIZANO, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This case comes before us for consideration of a motion to dismiss

filed by three of the defendants—John Morgan, Jospeh Pizano, and the

Borough of Exeter.1 (Doc. 25). The plaintiff, Scott Trethaway, brought

this action against these defendants and others, alleging violations of his

civil rights pursuant to 42 U.S.C. § 1983. (Doc. 1). In his complaint,

Trethaway names five municipal entities, the Wyoming Area Regional

Police Commission, and twelve individual defendants, alleging that he

was denied employment with the Wyoming Area Regional Police

1 This is one of six motions to dismiss filed by the various defendants.

( Docs. 24, 25, 26, 28, 29, 30). Each motion will be addressed by a

separate Memorandum Opinion.

Department because of his involvement with union activities, in violation

of his First Amendment rights. ( ). Trethaway asserts a First

Amendment retaliation claim against the individual defendants, as well

as a 2 claim against the Commission and the Municipal

Defendants. ( ).

Defendants Morgan, Pizano, and the Borough of Exeter now move

to dismiss the claims against them. (Doc. 25). They argue that Trethaway

has not pleaded the requisite personal involvement of the individual

defendants, and that the individual defendants are entitled to qualified

immunity. Further, they assert that he cannot establish liability

against the Municipal Defendant. After consideration, we agree that

Trethaway cannot establish liability against the Borough. We

further conclude that Trethaway has failed to state a claim against

Defendant Morgan, but we find that he has pleaded sufficient facts at

this stage to establish Pizano’s personal involvement in the alleged First

Amendment violation. Accordingly, the motion will be granted in part

and denied in part.

2 , 436 U.S. 658

(1978).

II. Background

The plaintiff, Scott Trethaway, was employed as a police officer by

the Borough of Wyoming in Luzerne County, Pennsylvania. (Doc. 1 ¶ 29).

During his employment, Trethaway was actively involved in the

Fraternal Order of Police Lodge 36 (the “Union”). ( ¶ 31). In January

of 2022, five municipalities—the Borough of Wyoming, the Borough of

Exeter, the Borough of West Wyoming, the Borough of West Pittston, and

Exeter Township (the “Municipal Defendants”)—created the Wyoming

Area Regional Police Commission (the “Commission”) to oversee the

newly created Wyoming Area Regional Police Department. ( ¶¶ 24,

34). This Commission was created pursuant to an intergovernmental

cooperation agreement between the Municipal Defendants, which

“vested in [the Commission] the management and administration of law

enforcement . . . including the supervision, hiring, promotion of police

officers and police administration employed by the regional police

department.” ( ). Around this same time, the Wyoming Area Regional

Police Association (the “Association”) was formed, and Trethaway was

unanimously elected President. ( ¶ 33).

Following the creation of the Commission, Trethaway alleges that

the Commission refused to negotiate or bargain with the Union or the

Association and refused to honor existing collective bargaining

agreements. (Doc. 1 ¶ 35). Specifically, the complaint asserts that

Defendants Pizano, Stavish, Colarusso, and Dominick openly exhibited

anti-union animus, in that Pizano threatened the employment of Union

members who supported Trethaway; Stavish stated that the Commission

and regional police department would set its own terms and refuse to

enter a collective bargaining agreement; Dominick initiated unfounded

investigations into Union and Association officers despite informing

members of the municipal police departments that they would receive

jobs in the regional police department; and Colarusso stated that the

Commission had no intention of negotiating or even meeting with the

Union or its representatives. ( ¶¶ 36-41, 53). As to Trethaway, the

complaint alleges that he applied for a supervisory position and a full-

time police officer position with the regional police department, but he

was not contacted by the Commission for an interview or considered for

the positions. ( . ¶¶ 51, 55). He contends that these positions were

offered to less qualified officers who were not involved in the Association,

and that he and other officers involved in the Union and Association were

deliberately excluded. ( . ¶¶ 56-57).

Thus, Trethaway’s complaint brings a First Amendment retaliation

claim pursuant to § 1983 against the individual defendants who made up

the Commission—Defendants Pizano, Morgan, Dominick, Scaltz,

Redmond, Kreseki, Stavish, Colarusso, Alfano, and Quinn; as well as

Defendant Pace, the Chief of the regional police department, and

Defendant Skilonger, a borough councilperson who was later appointed

as a full time police officer with the regional department. (Doc. 1, Count

I). He also brings a municipal liability claim under against the

Commission and the Municipal Defendants, arguing that these

defendants had a policy or practice of exhibiting anti-union bias and

discrimination, which was the motivating factor in refusing to consider

Trethaway for a position in the regional police department. ( , Count

II).

Morgan, Pizano, and the Borough of Exeter now move to dismiss

the claims against them. (Doc. 25). As to the individual defendants, they

contend that Trethaway has not alleged facts supporting their personal

involvement in the decision not to hire or consider him for a position

within the regional police department. They further assert that they are

entitled to qualified immunity. With respect to the Borough, the

defendants argue that the Borough has no control over the Commission,

and thus, cannot be liable for failing to hire Trethaway under a

theory of liability. This motion is fully brief and ripe for resolution. (Docs.

37, 44). After consideration, we will grant the motion as to the Borough

and Morgan but deny the motion as to Pizano.

III. Discussion

A. Motion to Dismiss - Standard of Review

The defendants have filed a motion to dismiss the complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule

12(b)(6) permits the court to dismiss a complaint if the complaint fails to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

Under federal pleading standards, a complaint must set forth a “short

and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim for relief under

this pleading standard, a court must accept the factual allegations in the

complaint as true, , 550 U.S. 544, 555

(2007), and accept “all reasonable inferences that can be drawn from

them after construing them in the light most favorable to the non-

movant.” , 20 F.3d 1250,

1261 (3d Cir. 1994). However, a court is not required to accept legal

conclusions or “a formulaic recitation of the elements of a cause of action.”

; , 556 U.S. 662, 678 (2009) (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice”).

As the Third Circuit Court of Appeals has aptly summarized:

[A]fter , when presented with a motion to dismiss for

failure to state a claim, district courts should conduct a two-

part analysis. First, the factual and legal elements of a claim

should be separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard any

legal conclusions. Second, a District Court must then

determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for

relief.” at 1950. In other words, a complaint must do more

than allege the plaintiff’s entitlement to relief. A complaint

has to “show” such an entitlement with its facts. ,

515 F.3d at 234–35. As the Supreme Court instructed in ,

“[w]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint

has alleged—but it has not ‘show[n]’—‘that the pleader is

entitled to relief.’ ” , 129 S. Ct. at 1949. This “plausibility”

determination will be “a context-specific task that requires

the reviewing court to draw on its judicial experience and

common sense.”

, 578 F.3d 203, 210-11 (3d Cir. 2009).

Generally, when considering a motion to dismiss, a court relies on

the complaint and its attached exhibits, as well as matters of public

record. , 502 F.3d 263, 268 (3d Cir. 2007). A court

can also consider “undisputedly authentic document[s] that a defendant

attached as an exhibit to a motion to dismiss if the plaintiff’s claims are

based on the [attached] documents.”

, 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if

the complaint relies on the contents of a document not physically

attached to the complaint but whose authenticity is not in dispute, the

court may consider such document in its determination.

, 288 F.3d 548, 560 (3d Cir. 2002).

However, the court may not rely on any other part of the record when

deciding a motion to dismiss. , 20 F.3d at 1261.

B. The Motion to Dismiss will be Granted in Part and Denied in

Part.

As we have noted, the plaintiff asserts a First Amendment

retaliation claim against Morgan and Pizano, alleging that as members

of the Commission, they retaliated against him for his involvement with

the Union by refusing to consider him for the supervisory or full-time

officer positions. He further claims that the Borough, as a Municipal

Defendant, has a policy or practice of discriminating against Union

members or exhibiting anti-Union bias, which led to the Commission’s

decision not to consider Trethaway for the positions. As we will discuss,

we conclude that Trethaway has set forth sufficient allegations against

Pizano at this stage to state a claim for First Amendment retaliation.

However, his claims against Morgan and the Borough fail as a matter of

law and will be dismissed.

1. Individual Defendants

Trethaway’s claim against the individual defendants is one of

retaliation for exercising his First Amendment rights.3 He asserts this

claim pursuant to 42 U.S.C. § 1983, which provides:

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

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

3 Trethaway has conceded that he is not bringing claims against the

individual defendants in their official capacities but in their individual

capacities only. (Doc. 45 at 5).

District of Columbia, subjects, or causes to be subjected, any

person 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 proper proceeding for redress.

42 U.S.C. § 1983. Liability under § 1983 requires a plaintiff to show that

the defendant had personal involvement in the alleged constitutional

violation. , 845 F.2d 1195, 1207-08 (3d Cir. 1988).

Personal involvement may be shown through allegations regarding the

defendant’s own conduct, or that the defendant had knowledge of the

unconstitutional conduct and acquiesced in the behavior.

Further, to state a First Amendment retaliation claim, the plaintiff

must show: (1) that he engaged in constitutionally protected conduct; (2)

that he suffered “retaliatory action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights”; and (3) a causal

connection between the protected activity and the retaliatory act.

, 463 F.3d 285, 296 (3d Cir. 2006).

In this case, the defendants contend that Trethaway has not alleged

facts to establish their personal involvement in the alleged violation of

his constitutional rights. However, our review of the complaint indicates

that Trethaway has pleaded specific facts as to Pizano to state a plausible

First Amendment retaliation claim against him. Trethaway’s First

Amendment claim is premised on his freedom to associate and be

involved with the Union. The Third Circuit has held that union

association is a protected right under the First Amendment.

, 906 F.3d 76, 84 (3d Cir. 2018). Further, Trethaway

has alleged an adverse action in that the defendants, as members of the

Commission, refused to hire him for a position with the regional police

department. , 350 F.3d 399, 419 (3d Cir. 2003) (“A

public employer ‘adversely affects an employee’s First Amendment rights

when it refuses to hire an employee because of the exercise of those

rights[.]”). Finally, the plaintiff has alleged that the failure to hire him

was causally connected to his membership in the Union. Trethaway’s

complaint asserts that the defendants openly displayed anti-Union

animus, and that because of his Union membership, he was not

considered for employment by the Commission. Accordingly, we conclude

that Trethaway has sufficiently alleged a causal connection between his

Union membership and the adverse action.

As to the individual defendants’ personal involvement, Trethaway’s

complaint asserts that Morgan and Pizano were members of the

Commission that failed to hire him for the supervisory and full-time

officer positions. While their membership on the Commission, standing

alone, may not be enough to show their personal involvement,

Trethaway’s complaint contains additional allegations against

Defendant Pizano. Specifically, Trethaway claims that Pizano openly

exhibited anti-Union bias by stating that he would not negotiate a

collective bargaining agreement with Trethaway, who was the president

of the Association. (Doc. 1 ¶ 36). The complaint further alleges that

Pizano threatened the employment of officers who supported Trethaway

and the Union. ( ¶ 38). Accordingly, as to Defendant Pizano, we can

infer from these allegations of anti-union animus, coupled with the fact

that Pizano was a member of the Commission that declined to hire

Trethaway, that he was personally involved in the decision not to

consider or hire Trethaway, and that this decision was based on

Trethaway’s Union membership.

Pizano further asserts that he is entitled to qualified immunity,

arguing that the plaintiff cannot show that Pizano’s affiliation with the

Commission violated any clearly established constitutional rights of the

plaintiff. The doctrine of qualified immunity protects government

officials from liability for civil damages “insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” , 555 U.S.

223, 231 (2009). This doctrine “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”

, 475 U.S. 335, 341 (1986). While generally a question of law to be

decided at the earliest possible stage, “a genuine dispute of material fact

on the issue of qualified immunity may preclude summary judgment.”

, 571 F.3d 318, 325-26 (3d Cir. 2009).

Qualified immunity is an affirmative defense that must be

established by the official seeking immunity. , 750 F.3d

273, 288 (3d Cir. 2014) (citing , 615 F.3d 197, 223 (3d

Cir. 2010)). To determine whether an official is entitled qualified

immunity, a court must determine (1) whether the official violated a

constitutional right, and (2) whether that right was clearly established.

, 533 U.S. 194, 201 (2001); 555 U.S. at 236

(permitting federal courts to exercise discretion in deciding which of the

two prongs should be addressed first).

A right is clearly established if “every reasonable official would

have understood that what he is doing violates that right.”

, 577 U.S. 7, 11 (2015). To be clearly established, “existing precedent

must have placed the statutory or constitutional question beyond

debate.” (quoting , 563 U.S. 731, 741 (2011)).

Courts must not define the right “at a high level of generality.”

(quoting , 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the inquiry

should focus on “whether the violative nature of particular conduct is

clearly established.” (quoting , 563 U.S. at 742). Ultimately,

“[t]he relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” ,

533 U.S. at 202. The plaintiff bears the initial burden of demonstrating

that the constitutional right at issue was clearly established at the time

of the claimed violation. , 468 U.S. 183, 197 (1984);

, 113 F.3d 396, 399 (3d Cir. 1997).

To determine whether a right is clearly established, the court may

look to cases from the Supreme Court, controlling circuit precedent, or “a

robust consensus of cases of persuasive authority” from other circuit

courts. , 974 F.3d 431, 449 (3d Cir. 2020)

(quoting , 877 F.3d

136, 142 (3d Cir. 2017)). Unpublished cases cannot establish a right

because they do not constitute binding authority. ,

975 F.3d 327, 340 (3d Cir. 2020). However, in rare cases, the conduct may

be clearly established from the obviously unlawful nature of the conduct

“even though existing precedent does not address similar circumstances.”

, 583 U.S. 48, 64 (2018) (citing

, 543 U.S. 194, 199 (2004)).

Here, we cannot conclude that Pizano is entitled to qualified

immunity against the plaintiff’s First Amendment retaliation claim. We

have concluded that Trethaway sufficiently pleaded a First Amendment

violation against Pizano for refusing to hire him based on his Union

membership. We further conclude that Trethaway’s right to be free from

retaliation based on his Union membership was clearly established at the

time of the alleged conduct. , 906 F.3d at 84 (citing

, 441 U.S. 463, 465 (1979)).

Accordingly, Pizano is not entitled to qualified immunity.

As to Defendant Morgan, the only allegation asserted against him

is that he was a member of the Commission. We conclude that this single

allegation is insufficient to establish Morgan’s personal involvement in

the alleged First Amendment retaliation. The complaint contains no

additional allegations of anti-Union bias by Morgan, or that Morgan was

openly hostile to Trethaway or other Union members. Moreover, while an

allegation that members of a board voted unanimously to take an action

against the plaintiff could constitute sufficient personal involvement as

to the voting members, ,

, 2018 WL 1566666, at *5 (M.D. Pa. Mar. 30, 2018) (Conner, J),

in this case, Trethaway does not actually allege that the Commission took

a vote not to hire him to the regional police department. Instead,

Trethaway vaguely asserts that he was not contacted to interview for the

positions, and that the individual defendants “actively support the anti-

union and anti-Associational policies . . . as indicated from the unanimous

votes behind the Department’s actions and the lack of dissent” from board

members. (Doc. 1 ¶ 60). We cannot conclude that this allegation of a

unanimous vote behind an unidentified Department action constitutes

sufficient personal involvement by Morgan simply because he was

identified as a member of the Commission.4 Accordingly, the plaintiff has

not adequately pleaded the personal involvement of Defendant Morgan,

and the claim against him will be dismissed.

2. The Borough of Exeter

Trethaway also asserts a claim against the Borough of Exeter under

a theory of liability, alleging that the Borough had a policy or

practice of anti-union discrimination and retaliation, and that this policy

or practice was the moving force behind the decision not to hire him for a

position with the regional police department.

A municipal entity may be liable for a constitutional violation under

§ 1983 if the violation was a direct result of the entity’s policy, custom or

practice. , 436 U.S. at 695. However, an entity may not be held

liable “solely because injuries were inflicted by its agents or employees.”

, 503 F.3d 247, 249 (3d Cir.

4 While the plaintiff’s brief in opposition contends that the individual

defendants were involved in “a wide-ranging conspiracy . . . to break the

union and retaliate against Plaintiff,” (Doc. 45 at 14), the complaint does

not contain any allegations of a conspiracy or an agreement between the

defendants to violate the plaintiff’s constitutional rights. “[I]t is

axiomatic that the complaint may not be amended by the briefs in

opposition to a motion to dismiss.”

, 836 F.2d 173, 181 (3d Cir. 1988) (internal quotations and

citation omitted). Accordingly, any such claim for conspiracy fails.

2007). Rather, a plaintiff must demonstrate a “direct causal link”

between the alleged constitutional violation and the municipal policy or

custom. , 489 U.S. 378, 385 (1989). A

plaintiff may show that either an official policy of the municipality was

the moving force behind the violation, or that the municipality had an

informal custom such that it operated as the municipality’s policy.

, 475 U.S. 469, 481 (1986); , 436 U.S.

at 690. In either scenario, the plaintiff has the burden to show that the

policy or custom was implemented or acquiesced in by a policymaker.

, 895 F.2d 1469, 1480 (3d Cir. 1990).

Here, the Borough contends that it cannot be held liable under

because the Commission, which is a separate legal entity and a

defendant in this matter, made the decision not to hire the plaintiff. The

defendants attach a copy of the intergovernmental cooperation

agreement between the five Municipal Defendants in support of its

argument that the Commission, not the municipalities, had the authority

to hire police officers for the regional police department. (Doc. 27-3, Ex.

C). For his part, Trethaway contends that we may not consider the

agreement, as he did not attach it to his complaint and his claims do not

depend upon it.

It is well settled that “a court may consider an undisputedly

authentic document that a defendant attaches as an exhibit to a motion

to dismiss if the plaintiff’s claims are based on the document.”

, 998 F.2d 1192,

1196 (3d Cir. 1993). As the Court of Appeals recognized, “[w]hen a

complaint relies on a document, . . . the plaintiff obviously is on notice of

the contents of the document, and the need for a chance to refute evidence

is greatly diminished.” at 1196-97 (citation omitted). A plaintiff who

“has relied upon the[] document[] in framing the complaint” is not

permitted to “prevent a court from looking at the texts of the documents

on which its claim is based by failing to attach or explicitly cite them.”

, 114 F.3d 1410, 1426 (3d

Cir. 1997) (internal quotations and citation omitted).

Here, the plaintiff’s complaint specifically alleges that the

Commission was created by the Municipal Defendants pursuant to the

intergovernmental cooperation law, and that the Municipal Defendants

“have vested in the Commission the management and administration of

law enforcement . . . including the supervision, hiring, promotion of police

officers and police administration employed by the regional police

department.” (Doc. 1 ¶¶ 24-25). Accordingly, it is clear from the complaint

that although the plaintiff does not attach or directly cite the agreement,

he “is on notice of the contents” of the agreement.

, 998 F.2d at 1196. Moreover, Trethaway’s claims of

retaliation are premised upon the Commission’s failure to hire him to the

regional police department, which his complaint alleges is the

responsibility of the Commission. ( . ¶¶ 68, 72). Accordingly, we

conclude that we may properly consider the agreement attached to the

defendants’ motion to dismiss, as the plaintiff has relied, at least in part,

on the agreement in framing the complaint.

The agreement between the Municipal Defendants states that the

Commission has the express authority and power to “hire, fire, suspend,

promote, demote, discipline, and otherwise deal with employees . . .” and

“establish salaries and terms and conditions of employment of uniformed

and non-uniformed employees.” (Doc. 27-3 at 11). Further, the agreement

provides that “Regional Department police officers and civilian personnel

shall be employees of the Commission and shall be under the direct

supervision of a regional police chief who will report to the Commission.”

( at 12). Given this language granting express authority to the

Commission to hire, fire, and manage the regional police department, we

cannot conclude that the Borough of Exeter can be held liable under

. Rather, it would appear that the policies and practices regarding

the hiring of regional police department officers and employees are

exclusively left to the Commission. In fact, the agreement expressly

provides for the Commission to “adopt written, uniform policies on wages,

hours and conditions and terms of employment and other matters

relating to effective police service[.]” ( at 11).

One court in this circuit found that similar language in an

agreement creating a regional police department relieved the municipal

entity of any liability regarding the policies and practices of the police

department. , 2007 WL 1469044, at *3 (W.D. Pa.

May 17, 2007).5 The court reasoned that the agreement, which

created a regional police department and granted authority over police

matters to a police commission, “clearly gives the Commission sole

5 Because we have concluded that we may properly consider the

agreement attached to the defendants’ motion to dismiss, the fact that

was decided at the summary judgment stage is immaterial.

authority over all police matters.” Accordingly, the court found that

because “the Commission is an independent entity with exclusive

authority over all police matters[,]” the municipal entity that created the

Commission could not be held liable under § 1983. We find this

reasoning persuasive. Here, the Municipal Defendants have clearly and

unequivocally given express authority to the Commission to hire, fire,

create policies, and otherwise deal with all employees and practices

regarding the regional police department. Accordingly, we cannot

conclude that the Borough of Exeter can be held liable under § 1983 for

the alleged retaliatory policies and practices of the Commission.

The plaintiff contends that the Municipal Defendants are joint

employers with the Commission and relies on

, 735 A.2d 1240 (Pa. 1999). However, the

Pennsylvania Supreme Court in that case dealt with joint employer

liability under Act 111, a labor relations statute. As one court in this

district has noted, the Pennsylvania Borough Code “indicates that the

Pennsylvania Legislature has clearly intended that police officers of a

regional police force are only employees of the regional police force.”

, 2017 WL 5070227, at *11

(M.D. Pa. Nov. 3, 2017) (Mannion, J) (citing 8 Pa. Cons. Stat. § 1122(b)).

Accordingly, the court reasoned that “[i]t is the responsibility of the

Pennsylvania legislature, not a function of this court, to decide and enact

applicable law governing police officers of a regional police department[.]”

(finding that the municipal entities were not “joint employers” with

the Police Commission).

While dealt with employment issues in the context of the

Police Tenure Act and the Borough Code, we find this reasoning

persuasive in this case. Here, the agreement between the Municipal

Defendants is clear and unambiguous in its language that “Regional

Department police officers and civilian personnel

and shall be under the direct supervision of a regional

police chief who will report to the Commission. All appointments,

promotions, suspensions, and removals

” (Doc. 27-3 at 12) (emphasis added). Therefore, we cannot

conclude that the Borough of Exeter was Trethaway’s joint employer and

can be held liable under § 1983. Accordingly, the § 1983 claim against the

Borough will be dismissed with prejudice.

IV. Conclusion

For the foregoing reasons, the defendant’s motion to dismiss (Doc.

25) will be GRANTED IN PART AND DENIED IN PART as follows:

1. The motion will be GRANTED as to the claim against the

Borough of Exeter, and this claim will be dismissed WITH

PREJUDICE;

2. The motion will be GRANTED as to Defendant Morgan, and the

claim against him will be dismissed WITHOUT PREJUDICE;

and

3. The motion will be DENIED as to the claim against Defendant

Pizano.

An appropriate order follows.

Daryl F. Bloom

United States Magistrate Judge