PERCIAVALLE v. CITY OF ALIQUIPPA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOSEPH PERCIAVALLE, IU,

Plaintiff, Civil Action No. 2:20-cv-474

V. Hon. William S. Stickman IV

CITY OF ALIQUIPPA, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge.

Plaintiff, Joseph Perciavalle HI (““Perciavalle”), a former City of Aliquippa police officer,

filed this action on April 2, 2020. (ECF No. 1). He then filed an Amended Complaint on July

10, 2020 (ECF No. 27), which was followed by a Second Amended Complaint on August 10,

2020 (ECF No. 44). On September 30, 2020, he filed a Third Amended Complaint. (ECF No.

63). The Defendants that remained in the case, the City of Aliquippa and Dwan Walker

(“Walker”), filed a Motion to Dismiss Perciavalle’s Third Amended Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) on October 14, 2020, along with a supporting brief.

(ECF Nos. 70 and 71). The matter was reassigned to the Court on November 25, 2020. By

Memorandum Opinion and Order issued January 27, 2021, the Court granted Defendants’

motion to dismiss. Counts I, II and [IV against Defendant Walker in his official capacity were

dismissed with prejudice. Counts I, II, IV, VI and VII against Walker in his individual capacity

were dismissed without prejudice. Counts I, IJ, HI, [V and V against the City of Aliquippa were

dismissed without prejudice. The Court permitted Perciavalle to file a Fourth Amended

Complaint. (ECF Nos. 84 and 85).

Perciavalle filed a Fourth Amended Complaint that eliminated Counts I through III as to

Walker. Counts I through IV, which are now only lodged against the City of Aliquippa, allege

various civil rights violations under the First and Fourteenth Amendments to the United States

Constitution. Count V, which is also against the City of Aliquippa, alleges a violation of the

Pennsylvania Whistleblower Act. Count VI, which is against Walker, alleges a Pennsylvania

state law claim of intentional infliction of emotional distress. Count VII, which is against

Walker, alleges a Pennsylvania state law claim of slander per se. (ECF No. 90). Defendants

once again filed a Motion to Dismiss Plaintiff's Fourth Amended Complaint. (ECF No. 91).

Briefing is now complete. For the following reasons, the Court will grant in part and deny in

part Defendants’ motion.

I. STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A

plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief that is

plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual

allegations as true and view them in the light most favorable to a plaintiff. See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also DiCarlo v. St. Mary Hosp., 530 F.3d 255,

262-63 (3d Cir. 2008). Although this Court must accept the 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.” Baraka v. McGreevey, 481 F.3d 187, 195 (Gd Cir.

2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even if

the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not

entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to

plausibly justify that inferential leap. Jd.

I. FACTUAL BACKGROUND

In 2011, Perciavalle was hired by the City of Aliquippa as a police officer until his

termination on or about September 30, 2020. In 2014, he was promoted to Assistant Chief.

(ECF No. 90, 9§ 8-9). In 2015, he began making “complaints” to Walker and “various other city

council members about wrongdoing within Defendant Aliquippa’s police department, including,

but not limited to, wrongdoing committed by Chief Couch.” (ECF No. 90, 9 10). Perciavalle

also made similar “complaints” to other law enforcement agencies. The “complaints” related to

“corruption” with the City of Aliquippa police department, including the “mismanagement of

departmental funds and/or additional illegalities committed by various individuals, including

Chief Couch.” (ECF No. 90, 11-14). In March of 2016, Perciavalle made a report of

wrongdoing by Chief Couch (ie., “mismanagement of departmental funds/ and or additional

illegalities”) to the Beaver County District Attorney as well as “to various individuals and/or

agencies.” (ECF No. 90, 15-17). In the following months, Perciavalle had discussions with

District Attorney Lozier “relating to the wrongdoing taking place” within the police department

and “various ongoing investigations.” (ECF No. 90, §§ 18-19).

On June 6, 2018, Chief Couch was removed from his position and placed on

administrative leave. Perciavalle was appointed Acting Chief. Two days later, Perciavalle was

charged with various criminal offenses and removed from his position and placed on paid

administrative leave. On July 10, 2018, Perciavalle was charged with an additional criminal

offense. The felony charges against Perciavalle — i.e., distribution of explicit sex materials to a

minor and unlawful contact with a minor - were dismissed at his December 4, 2018 preliminary

hearing. On July 25, 2019, the felony charge of intercepting communications against him was

nolle prossed. On March 13, 2019, Perciavalle’s remaining criminal charge — corruption of

minors — was nolle prossed. (ECF No. 90, J 20-26).

In March of 2020, Perciavalle, who remained on administrative leave, made “yet another

good faith report of ongoing wrongdoing within Defendant Aliquippa’s police department” to

members of the City of Aliquippa’s council and “various individuals and/or agencies.” (ECF

No. 90, 9 27-28). These “complaints” related to “corruption” within the City of Aliquippa

police department, including the “mismanagement of departmental funds and/or additional

illegalities committed by various individuals, including Chief Couch.” (ECF No. 90, § 29).

Perciavalle “believes, and therefore avers, that a member and/or members of Defendant

Aliquippa’s council reported [his] complaint to Defendant Walker.” (ECF No. 90, § 30).

Walker allegedly responded to these individuals, “[n]o, you’re chasing [Perciavalle’s] waterfalls

again.” (ECF No. 90, § 30).

Perciavalle was not permitted to return to his position as a police officer. The City of

Aliquippa’s reason for not doing so was “[Perciavalle’s] dissemination of allegedly inappropriate

materials in the workplace, as well as allegedly inappropriate interactions with coworkers.” The

inappropriate materials consisted of lewd text messages, crude drawings, and off-color memos.

The inappropriate interactions consisted of conversations with other officers, one of which

involved Perciavalle calling another officer rude names. Perciavalle alleges that five other

named officers “engaged in the same or substantially similar conduct,” including disseminating

“allegedly inappropriate materials in the workplace in the form of lewd text messages, crude

drawings and off-color memes,” as well as “inappropriate interactions with coworkers by calling

one another rude names,” and that they were not disciplined. (ECF No. 90, ¥§ 31-38).

Since he filed this action, Perciavalle alleges that “Walker has indicated to various

members of [Perciavalle’s] community, including members of Defendant Aliquippa’s council,

that he would not return [Perciavalle] to his position as a law enforcement officer [. . .] asa

direct result of his pending lawsuit.” Perciavalle “believes, and therefore avers,” that Walker,

“exerted his power and influence as mayor and de facto head of Defendant Aliquippa’s police

department to prevent [Perciavalle’s] return to his position as law enforcement officer.” He

further alleges that Walker acted as a decision-maker for the City of Aliquippa “with final

authority to discipline municipal employees in his capacity as mayor,” and Walker’s actions

were “taken in retaliation for [Perciavalle’s] good faith reports of wrongdoing within Defendant

Aliquippa’s police department.” (ECF No. 90, §§ 41-44). In June of 2020, Walker “indicated to

various members of [Perciavalle’s] community that [Perciavalle] was a ‘pervert’ and that

[Perciavalle] had ‘slipped through the cracks’ when the criminal charges against him were nolle

prossed.” (ECF No. 90, §§ 41-46). Then, on or about September 30, 3020, Perciavalle was

terminated as a law enforcement officer by the City of Aliquippa for “inappropriate materials in

the workplace,” and “inappropriate interactions with coworkers.” (ECF No. 90, {J 47-48).

I. ANALYSIS

A. The 42 U.S.C. § 1983 claims — Counts I through IIT can proceed, but Count IV

will be dismissed with prejudice.

42 U.S.C. § 1983 provides a cause of action against any person who, acting under the

color of state law, deprives another of his or her federal rights, and, under certain circumstances,

the municipal employer and/or supervisor of such a person. To obtain relief under § 1983, a

plaintiff must make a two-prong showing: (1) that he suffered a violation of a right secured by

the Constitution and laws of the United States; and, (2) that the alleged deprivation was

committed by a person acting under the color of state law. See Karns v. Shanahan, 879 F.3d

504, 520 (3d Cir. 2018) (citations omitted). Like all other federal civil court complaints, those

that invoke § 1983 must contain factual allegations, not mere conclusions, constituting a

plausible, and not merely speculative or possible, claim for relief. Fed. R. Civ. P. 8 does not

unlock the doors of discovery for a plaintiff armed with nothing more than mere conclusions.

Whether factual allegations constitute a plausible constitutional claim is context-specific,

dependent upon the particular constitutional provision at issue and the nature of a plaintiff's

theory of liability. Jgbal, 556 U.S. at 676-79.

A municipal entity, such as the City of Aliquippa, cannot be held liable pursuant to §

1983 under the theory of respondeat superior. Monell v. Dep’t of Social Services of New York,

436 U.S. 658, 691 (1978). “[I]t is when execution of a [municipality's] policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity is responsible under § 1983.”

Id. at 694. Municipal entities may only be held liable under § 1983 on (1) an express municipal

policy, such as an ordinance, regulation, or policy statement, see /d., (2) a “widespread practice,

that although not authorized by written law or express municipal policy, is ‘so permanent and

well settled as to constitute a custom or usage’ with the force of law,” see City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-

68 (1970)), or (3) the decision of a person with “final policymaking authority.” See Praprotnik,

485 U.S. at 123; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986). A

municipality may be held liable under § 1983 only when the enforcement of the municipal policy

or practice was the “moving force” behind the violation of a plaintiff's federal protected right.

Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 400 (1997); City of Canton,

Ohio v. Harris, 489 U.S. 378, 388-89 (1989).

1. Counts I, II and IIT can proceed.

Count I alleges First Amendment retaliation based upon Perciavalle’s reports of waste or

wrongdoing by the police department, and Count II alleges First Amendment retaliation based

upon his filing of the instant lawsuit. (ECF No. 90, §§ 55-66). Count III is a claim of municipal

liability. (ECF No. 90, § 67-73). The Court finds that Perciavalle’s factual allegations state

plausible § 1983 claims against the City of Aliquippa.

The First Amendment to the United States Constitution safeguards the right to free

speech, and the provisions of the First Amendment bind state actors by way of incorporation

through the Due Process Clause of the Fourteenth Amendment. See Locke v. Davey, 540 U.S.

712, 718 (2004). Section 1983 cases involving the First Amendment typically arise in situations

where government officials either intend the result of their challenged conduct — the plaintiff's

denial or lack of opportunity to write or receive information — or knowingly punish a plaintiff for

the exercise of First Amendment rights. Perciavalle is proceeding under the later theory.

The basic principles of First Amendment retaliation are well established. “Official

reprisal for protected speech offends the Constitution [because] it threatens to inhibit exercise of

the protected right.” Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir. 2017) (quoting Hartman v.

Moore, 547 U.S. 250, 256 (2006)) (alteration in original) (internal quotations omitted). “[T]o

plead a retaliation claim under the First Amendment, a plaintiff must allege: (1) constitutionally

protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) a causal link between the constitutionally protected

conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)

(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)), abrogated on other grounds by

Iqbal. “The key question in determining whether a cognizable First Amendment claim has been

stated is whether the alleged retaliatory conduct was sufficient to deter a person of ordinary

firmness from exercising his First Amendment rights.” /d. (citing McKee v. Hart, 436 F.3d 165,

170 (3d Cir. 2006) (internal quotation marks omitted)); see also Crawford-El v. Britton, 523 U.S.

574, 588 n. 10 (1998) (‘The reason why such retaliation offends the Constitution is that it

threatens to inhibit exercise of [a constitutionally] protected right.”). The third element, “a

causal link,” requires “but-for” causation. Mirabella, 853 F.3d at 651. “In order to establish the

required causal connection, a plaintiff usually must prove 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.” Rink yv. Ne. Educ.

Intermediate Unit 19,717 F. App’x 126, 133 (3d Cir. 2017) (citation omitted).

To show that he engaged in First Amendment protected speech or conduct, Perciavalle

had to plead that he spoke on a matter of public concern in his capacity as a citizen, and not as an

employee. Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997). See also

Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (“[a] public employee’s

statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the

statement involved a matter of public concern, and (3) the government employer did not have ‘an

adequate justification for treating the employee differently from any other member of the general

public.””) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). This is because, in the

absence of protected speech or conduct, a public employee may be discharged even if the action

is unfair, or the reasons “are alleged to be mistaken or unreasonable.” Connick v. Myers, 461

U.S. 138, 147 (1983) (citations omitted).

“Speech implicates a matter of public concern if the content, form, and context establish

that the speech involves a matter of political, social, or other concern to the community.” Miller

v. Clinton County, 544 F.3d 542, 548 (3d Cir. 2008). The “public concern” inquiry required

under Connick presents a question of law for the Court to decide. Connick, 461 U.S. at 148, n. 7.

See also Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001) (a district court

determines as a matter of law whether activity is protected by the First Amendment). Because

district courts are not to “make a superficial characterization of the speech or activity taken as a

whole,” they must conduct “a particularized examination of each activity for which the

protection of the First Amendment is claimed” to determine whether it involves a matter of

public concern, Johnson v. Lincoln Univ. of Commonwealth Sys. of Higher Educ., 776 F.2d 443,

451 (3d Cir. 1985), while taking care not to “cherry pick’ something that may impact the public —

while ignoring [its] manner and context,” Munroe y. Cent. Bukcs Sch. Dist., 805 F.3d 454, 467

(3d Cir. 2015) (citation omitted).

The facts pled in support of Perciavalle’s claims against the City of Aliquippa remain

scant, but there are enough to show that constitutionally protected speech or conduct is at issue,

at least at the pleading stage. Perciavalle’s First Amendment retaliation claim at Count I is based

upon “reports” and “complaints” of “corruption,” “mismanagement of departmental funds,”

and/or “additional illegalities,’ by the Chief Couch and various individuals in the City of

Aliquippa’s police department. It is plausible that Perciavalle was speaking on a matter of public

concern outside of his ordinary job duties.

As to Count II, Perciavalle alleges that he “engaged in constitutionally protected activity

when he filed a lawsuit alleging numerous claims of unlawful behavior on the parts of the

Defendants.” (ECF No. 90, § 64). The filing of this lawsuit was certainly not within

Perciavalle’s ordinary job responsibilities. Furthermore, court appearances are generally matters

of public concern in that they implicate, particularly in criminal matters, the public’s integrity in

the truth seeking process and administration of justice. It is a plausible inference at this stage

that this lawsuit involves constitutionally protected activity and a matter of public concern.

. A fair reading of the Fourth Amended Complaint yields generalized facts outlining

constitutionally protected speech or conduct. The Court holds that what is pled is just enough for

Counts I and II to proceed to discovery. Furthermore, it will permit the Monell claim, advanced

in Count III, to proceed as well. Perciavalle is ostensibly pleading that Walker, as mayor (and de

facto head of the City of Aliquippa’s police department), acted as a decision maker with final

authority when he refused to return Perciavalle to his position as a law enforcement officer and it

was in retaliation for Perciavalle’s filing complaints of wrongdoing with the police department

and filing this lawsuit. It is certainly possible to find the existence of a municipal policy in “the

isolated decision of an executive municipal policymaker.” City of St. Louis, 485 U.S. at 139.

Based on the facts alleged, it is plausible to infer that Walker’s actions give rise to a claim of

municipal liability.

The motion to dismiss will be denied as to Counts I, II, and III.

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2. Count IV will be dismissed with prejudice.

The equal protection clause of the Fourteenth Amendment prohibits the discriminatory

enforcement of facially valid laws. See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.

2005). Perciavalle’s equal protection claim at Count IV against the City of Aliquippa is brought

under the selective enforcement theory of liability. To establish that his equal protection rights

were violated by selective enforcement of a law or policy, Perciavalle must demonstrate: “(1)

that he was treated differently from other similarly situated individuals; and (2) that this selective

treatment was based on an unjustifiable standard, such as race, religion, some other arbitrary

factor or to prevent the exercise of a fundamental right.” Karns, 879 F.3d at 520-21; see also

PG Pub. Co. v. Aichele, 705 F.3d 91, 115 (3d Cir. 2013). Thus, to maintain a claim of this type,

Perciavalle had to show in his factual averments that the administration of laws has not only

“resulted in unequal application to those who are entitled to be treated alike, but also that there is

an element of intentional or purposeful discrimination.” PG Pub. Co., 705 F.3d at 115 (internal

citations and quotations omitted); see also Jewish Home of E. Pa. v. Ctrs. for Medicare and

Medicaid Servs., 693 F.3d 359, 363 (3d Cir. 2012) (“[T]o maintain an equal protection claim of

this sort, [plaintiff] must provide evidence of discriminatory purpose, not mere unequal treatment

or adverse effect.”). “A federal constitutional violation does not exist merely because of the

‘exercise of some selectivity in enforcement.’” Karns, 879 F.3d at 521 (quoting Oyler v. Boles,

368 U.S 448, 456 (1962)). Rather, a claim for “intentional discrimination requires evidence of a

malicious bad faith intent to injure.” Greco v. Senchak, 25 F. Supp. 3d 512, 518 (M.D. Pa.

2014).

With regard to the first element, at the motion to dismiss stage, Perciavalle “must allege

sufficient facts to make plausible the existence of [ | similarly situated parties” that received

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disparate treatment, by including “specific factual allegations as to the allegedly similarly

situated parties.” Perano v. Twp. of Tilden, 423 F. App'x 234, 238 (3d Cir. 2011); see also Yagla

v. Simon, No. 14-181, 2015 WL 1326341, at *15 (W.D. Pa. Mar. 24, 2015).' Perciavalle does no

such thing. Instead, he makes a very general allegation of disparate treatment. He alleges that,

“other similarly situated individuals employed as law enforcement officers by Defendant

Aliquippa who engaged in the same or substantially similar conduct as Plaintiff were not

disciplined by Defendant Aliquippa.” (ECF No. 90, § 78). All he offers as a factual basis is that

five other named officers “engaged in the same or substantially similar conduct,” including

disseminating “allegedly inappropriate materials in the workplace in the form of lewd text

messages, crude drawings and off-color memes,” as well as “inappropriate interactions with

coworkers by calling one another rude names,” and that they were not disciplined. (ECF No. 90,

31-38). The Fourth Amended Complaint lacks any specific allegations as to each of the

named officers. It is not clear what specific action each officer took, how it was similar to

Perciavalle’s actions (which are also unclear from the factual averments), and exactly how each

officer was disciplined in light of their own disciplinary record. None of the facts alleged make

plausible the existence of similarly situated officers and that Perciavalle was treated differently

than them.

As to the second factor, even if Perciavalle could demonstrate that he was similarly

situated to the five named officers, there are absolutely no facts alleged in the Fourth Amended

Complaint that would support an inference that his race, religion, some other arbitrary factor

motivated the discipline of him and termination of his employment. Subjective beliefs,

' Persons are “similarly situated” for equal protection purposes when “they are alike in all

relevant aspects.” Suber v. Wright, 574 F. App'x 207, 211 (3d Cir. 2014) (internal citations and

quotations omitted).

12

unsupported by factual allegations, cannot give rise to an inference of discrimination. See

Rodriguez v. Nat'l R.R. Passenger Corp., 532 F. App'x 152, 153 (3d Cir. 2013). That is all

Perciavalle has pled, and it is insufficient to satisfy his pleading requirement.

In sum, Perciavalle has failed to allege facts that plausibly establish the existence of

similarly situated parties who were treated differently from him on the basis of an arbitrary or

unjustifiable standard. Perciavalle’s ambiguously asserted selective enforcement averments fail

to state a claim upon which relief can be granted.

Additionally, and more importantly, Count TV must be dismissed because Perciavalle’s

factual allegations fall woefully short of containing any of the necessary elements of holding the

City of Aliquippa liable under a Monell theory. As previously discussed herein, “[p]laintiffs who

seek to impose liability on local governments under § 1983 must prove that ‘action pursuant to

official municipal policy’ caused their injury.” Connick, 563 U.S. at 60 (quoting Monell, 436

U.S. at 691). Perciavalle has completely failed to pled a cognizable Monell theory of liability as

to his selective enforcement claim. Not only has he failed to allege a constitutional violation, but

he has not set forth any factual allegations that the City of Aliquippa or Walker acted pursuant to

a municipal policy, practice, or procedure, and, for the reasons set forth above, he has not

sufficiently alleged that Walker had final policymaking authority. Nothing is pled that the City

of Aliquippa had knowledge of Walker’s actions. Predicating liability solely on the actions of

Walker is nothing more than a thinly veiled application of vicarious liability pursuant to the

respondeat superior doctrine. Liability against the City of Aliquippa cannot proceed on this

basis.

The motion to dismiss will be granted as to Count IV, and it will be dismissed with

prejudice for failure to state a claim. Any attempt by Perciavalle to amend his Complaint, after

13

already being given four opportunities to do so, would be futile. See In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (a court may decide to deny leave to

amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility); see

also 3 James Wm. Moore et al., Moore’s Federal Practice § 15.15 (3d ed. 2021) (“An

amendment is futile if it merely restates the same facts as the original complaint in different

terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could

not withstand a motion to dismiss.”).

B. The Pennsylvania tort claims

I. Count V — violation of the Pennsylvania Whistleblower Act against City of

Aliquippa — can proceed.

The Pennsylvania Whistleblower Act (“Whistleblower Act”) provides that “[n]o

employer may discharge, threaten or otherwise discriminate or retaliate against an employee ...

because the employee ... makes a good faith report or is about to report, verbally or in writing, to

the employer or appropriate authority an instance of wrongdoing or waste.” 43 P.S. § 1423(a).

“To assert a prima facie case under the Pennsylvania Whistleblower Law, a plaintiff must plead

that, prior to the alleged acts of retaliation, [s]he had made a good faith report of wrongdoing to

appropriate authorities.” Kimes v. Univ. of Scranton, 126 F. Supp. 3d 477, 505 (M.D. Pa. 2015)

(quoting O'Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001) (internal quotations

omitted)). Recovery under the Act requires evidence that a plaintiff: (1) reported an instance of

wrongdoing or waste to an appropriate authority; and (2) there is a causal connection between

the report and the alleged retaliation. 43 P.S. § 1424(b). If such a showing is made, the burden

shifts to the defendant to show that the action it took occurred for legitimate reasons. Johnson v.

Res. for Human Dev., Inc., 789 F. Supp. 2d 595, 601 (E.D. Pa. 2011). The burden then shifts

back to the plaintiff to show the proffered reason is, in fact, pretextual.

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The City of Aliquippa contends that Perciavalle’s claim against it at Count V is time-

barred. While courts do not typically dismiss claims as time-barred on a motion to dismiss, “a

court may ... dismiss a claim under 12(b)(6) where the bar is ‘apparent on the face of the

complaint.’” Metso Paper USA, Inc. v. Bostik, Inc., No. 3:08-CV—772, 2011 WL 2670320, at *3

(M.D. Pa. July 8, 2011) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)).

The Whistleblower Act provides:

A person who alleges a violation of this act may bring a civil action in a court of

competent jurisdiction for appropriate injunctive relief or damages, or both,

within 180 days after the occurrence of the alleged violation.

43 P.S. § 1424(a). “[D]espite the use of the permissive ‘may,’ the Whistleblower Law's ‘180—day

time limit is mandatory, and courts have no discretion to extend it.”” Campion v. Northeast

Utilities, 598 F. Supp. 2d 638, 645 (M.D. Pa. 2009) (quoting O'Rourke v. Pennsylvania Dep't of

Corr., 730 A.2d 1039, 1042 (Pa. Commw. 1999)).

Here, Perciavalle’s original Complaint was filed on April 2, 2020. (ECF No. 1). He was

placed on paid administrative leave on or about June 2018 and then terminated on September 30,

2020, and these employment events, according to Perciavalle, were the result of his “complaints”

of wrongdoing about the City of Aliquippa’s police department. (ECF No. 95, p. 10). The

“complaints” he cites to occurred in 2015, March of 2016, and March of 2020. (ECF No. 90, 99

10-11, 15, 27). There is no question that the March 2020 “complaint” occurred within the 180

day limitation period. Thus, at this particular juncture, the Court finds that Count V is not time-

barred, and it adequately sets forth sufficient facts to permit the claim to proceed to discovery.

The Motion to Dismiss will be denied as to Count V.

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2. Count VI — Intentional Infliction of Emotional Distress against Walker — will be

dismissed.

To state a claim for Intentional Infliction of Emotional Distress (“ITED”) under

Pennsylvania law, a plaintiff must make a “showing of ‘intentional outrageous or extreme

conduct by the defendant, which causes severe emotional distress to the plaintiff.’” Williams v.

Fedarko, 807 F. App’x 177, 181 (d Cir. 2020) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230

(Pa. Super. 2005)). Liability on an intentional infliction of emotional distress claim “has been

found only where the conduct has been so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Field vy, Phila, Elec. Co., 565 A.2d 1170, 1184 (Pa. Super.

1989). In addition, “‘a plaintiff must suffer some type of resulting physical harm due to the

defendant's outrageous conduct.’” Reedy vy. Evanson, 615 F.3d 197, 232 (3d Cir. 2010) (quoting

Swisher, 868 A.2d at 1230)). Thus, conduct rises to the level required to constitute TED in only

very limited circumstances. See, e.g. Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa. Super.

1981) (finding HED where defendants intentionally fabricated records to suggest that plaintiff

had killed a third party which led to plaintiff being indicted for homicide); Chuy v. Phila. Eagles

Football Club, 595 F.2d 1265 (3d Cir. 1979) (finding ITED where defendant's team physician

released to press information that plaintiff was suffering from fatal disease, when physician knew

such information was false). Liability under this cause of action is “reserved by the courts for

only the most clearly desperate and ultra extreme conduct.” Hoy v. Angelone, 720 A.2d 745, 754

(Pa. 1998).

Perciavalle’s TED claim against Walker fails on multiple grounds. First, Perciavalle has

failed to sufficiently allege that Walker engaged in “outrageous or extreme conduct” necessary to

sustain an HED claim. The Court finds that Walker’s alleged statements to various members of

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the community that Perciavalle was a “pervert” and he had “slipped through the cracks” when

the criminal charges against him, including a charge of corruption of minors, were nolle prossed,

is simply not type of extreme conduct to which liability can attach. Second, Perciavalle failed to

set forth any facts establishing that Walker intended to inflict emotional distress on him by

making such statements. Third, Perciavalle failed to allege the requisite physical injury or

manifestation that Pennsylvania law holds is necessary to state such a claim. His allegations of

“emotional distress” are insufficient to establish physical harm.

The Motion to Dismiss Count VI will be granted and Perciavalle’s ITED claim against

Walker will be dismissed with prejudice.

3. Count VII — Slander Per Se against Defendant Walker — can proceed.

Defamation includes both libel and slander in Pennsylvania. Pondexter v. Allegheny

County Hous. Auth., No. 11-CV-857, 2012 WL 3611225, at *10 (W.D. Pa. Aug. 21, 2012).

Libel is written defamation, while slander is oral defamation. /d. Pursuant to 42 P.S. § 8343(a),

a plaintiff asserting a claim for defamation has the prima facie burden of proving: (1) the

defamatory character of the communication; (2) its publication by the defendant; (3) its

application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5)

the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm

resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged

occasion. 42 P.S. § 8343(a)(1)-(7). Under Pennsylvania defamation law, it is for the Court to

determine whether the statement at issue is capable of a defamatory meaning. Keim v. County of

Bucks, 275 F. Supp. 2d 628, 636 (E.D. Pa. 2003). A statement is defamatory if it tends so to

harm the reputation of another as to lower him or her in the estimation of the community or to

deter third persons from associating or dealing with him or her. /d. (citation omitted).

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Pennsylvania recognizes an exception to the requirement of showing special harm where

the words spoken constitute slander per se. Rossi v. Schlarbaum, 600 F. Supp. 2d 650, 663 (E.D.

Pa. 2009). Slander per se encompasses statements that impute to the person (1) a criminal

offense, (2) a loathsome disease, (3) a matter incompatible with his business, trade, profession,

or office, or (4) serious sexual misconduct. /d. (citing Restatement (Second) of Torts § 570

(1977)).

Perciavalle has adequately pled a slander per se claim against Walker. Taking all

allegations in the Fourth Amended Complaint as true and in their entirety, Walker’s statements

to various members of the community that Perciavalle was a “pervert” and that he had “slipped

through the cracks” when the criminal charges against him, including a charge of corruption of

minors, were nolle prossed, could be considered defamatory. The statements impute criminal

conduct to Perciavalle and could constitute slander per se. In addition, Perciavalle has alleged

that he suffered personal humiliation and damage to his reputation.

The Motion to Dismiss Count VII will be denied.

IV. CONCLUSION

Defendants’ Motion to Dismiss will be granted in part and denied in part for the

foregoing reasons of law and fact. An Order of Court will follow.

BY THE COURT:

DLS ie

WILLIAM S.STICKMANIV

UNITED STATES DISTRICT JUDGE

A 4 a. LS, 2°21

Dated

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