Javitz v. Watchilla

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DONNA DAVIS JAVITZ,

Plaintiff, CIVIL ACTION NO. 3:23-CV-01135

v.

(MEHALCHICK, J.)

SHELBY WATCHILLA, ROMILDA

CROCAMO, and LUZERNE COUNTY,

Defendants.

MEMORANDUM

On November 14, 2023, Plaintiff Donna Davis Javitz (“Javitz”) filed an amended

complaint in this matter, asserting various civil rights claims under § 1983 against Defendants

Shelby Watchilla (“Watchilla”), Romilda Crocamo (“Crocamo”), and Luzerne County

(“Luzerne County” or the “County”) (collectively, “Defendants”).1 (Doc. 53-1). Presently

before the Court is a motion to dismiss filed by Defendants Crocamo and Luzerne County.

(Doc. 56). For the following reasons, Defendants’ motion to dismiss shall be GRANTED.

(Doc. 56).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from Javitz’s amended complaint. (Doc. 53-1).

Luzerne County is a Pennsylvania municipality. (Doc. 53-1, ¶¶ 5-8). At all relevant times,

Crocamo was a Pennsylvania resident and the Chief County Solicitor and Acting Manager

for Luzerne County. (Doc. 53-1, ¶ 4). During the fall of 2014, shortly after Javitz was hired

as Director of Human Resources for Luzerne County, a county employee allegedly illegally

recorded Javitz while she was conducting a labor misconduct investigation. (Doc. 53-1, ¶¶ 11,

1 On December 15, 2023, Plaintiff dismissed her claims against Defendant Mark

Bufalino, without prejudice. (Doc. 62).

14-15). In early 2015, Javitz received detailed notes of meetings Javitz had with Luzerne

County employees. (Doc. 53-1, ¶¶ 14-15). Javitz alleges that these notes “could only have

been made through an illegal recording in violation of the Pennsylvania Wire Tap Act.” (Doc.

53-1, ¶ 15).

Javitz reported this suspected criminal activity to her manager, David Parsnik and the

Chief County Solicitor, David Pedri, who she alleges did nothing to investigate the report or

the employee purportedly responsible for the report. (Doc. 53-1, ¶ 16-17). In March 2015,

Javitz reported the recording to District Attorney Salavantis. (Doc. 53-1, ¶ 17-19). During

Javitz’s meeting with Salavantis, she identified a union member and employee of the District

Attorney’s office as the possible employee who made the recordings. (Doc. 53-1, ¶ 19).

Salavantis allegedly said she would refer the case to the Pennsylvania Attorney General’s

Office, but never did. (Doc. 53-1, ¶ 21). Javitz met with Salavantis again in June of 2015 to

inquire about the investigation was informed that County Manager David Lawton told

Salavantis not to investigate the matter. (Doc. 53-1, ¶ 22). After her initial report to the District

Attorney in March 2015, Javitz alleges that County Managers Parsnik and Lawton began

retaliating against her until the time of her termination in October 2015. (Doc. 53-1, ¶¶ 24).

Javitz alleges she was never given a reason for termination by Luzerne County. (Doc. 53-1, ¶

26). Javitz reported the crime herself to the Attorney General’s Office in November 2015.

(Doc. 53-1, ¶ 23).

In December 2015 Javitz filed an action against Luzerne County, David Parsnik, and

Robert Lawton in which she alleged Due Process, First Amendment, and state law claims.

(Doc. 53-1, ¶ 27, 28, 142); Javitz v. Luzerne County et al., No. 3:15-CV-2443 (Javitz I). At the

conclusion of trial in that matter, a jury found in favor of the defendants, and the Third Circuit

affirmed the verdict. (Doc. 53-1, ¶ 28); see Javitz v. Luzerne Cnty., No. 22-2519, 2023 WL

5842299 (3d Cir. Sept. 11, 2023). Javitz alleges that following that lawsuit, she applied for

many positions of employment with Luzerne County for which she was not hired, despite

being the most qualified applicant. (Doc. 53-1, ¶¶ 113-136).

On October 10, 2023, Javitz filed the instant amended complaint, alleging the

following counts against Defendants Crocamo and Luzerne County: Count I – § 1983 Civil

Rights Conspiracy; Count II – § 1983 Violation of First Amendment Right of Association;

Count III – Violation of First Amendment Right to Speech and Petition; Count IV – § 1983

Monell Violation; Count V – § 1983 Retaliation; Count VI – Common Law Conspiracy; Count

VII – Intentional Infliction of Emotional Distress; Count VIII – Declaratory Judgment; and

Count IX – Breach of Legislative Enactment, Home Charter Rule, Personnel Code. (Doc. 53-

1). As relief, Javitz seeks an award of actual damages, punitive damages, declaratory

judgment, compensatory damages, and attorney’s fees. (Doc. 53-1). On December 4, 2023,

Defendants Crocamo and Luzerne County filed the instant motion to dismiss as well as a

brief in support of their motion on December 18, 2023. (Doc. 56; Doc. 64). Javitz filed a brief

in opposition to the motion to dismiss on January 29, 2024. (Doc. 70). Defendants filed a

reply brief on February 9, 2024. (Doc. 75).

II. LEGAL STANDARD FOR MOTION TO DISMISS

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). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

which are not entitled to the assumption of truth, and finally determine whether the

complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal

claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) 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).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions’ . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court

assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen.

Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

III. DISCUSSION

Defendants Crocamo and Luzerne County move to dismiss Javitz’s complaint in its

entirety for failing to sufficiently allege claims against them; Javitz submits that she has done

so. (Doc. 56; Doc. 70, at 39). Specifically, Defendants aver that (1) Javitz’s § 1983 Civil Rights

Conspiracy claim (Count I) and common law conspiracy claim (Count VI) should be

dismissed as they are not independent causes of action; (2) Javitz’s § 1983 Violation of First

Amendment Right of Association claim (Count II), First Amendment Retaliation (Count V),

and Monell claim (Count IV) should be dismissed because she fails to adequately allege such

violations; (3) Javitz’s claims of, Intentional Infliction of Emotional Distress (Count VII), and

Federal Declaratory Judgment Act claim (Count VIII) fail as a matter of law; and (4) Javitz’s

claim for breach of Legislative Enactment (Count IX) fails because there is no private right

afforded to her under either the Luzerne Home Rule Charter, Personnel Code, or breach of

legislative enactment. Lastly, Defendants aver that punitive damages are not an available

remedy against the county. (Doc. 64, at 48). For the following reasons, the Court agrees with

Defendants Crocamo and Luzerne County, and will GRANT their motion to dismiss . (Doc.

56). Javitz’s claims in Counts I, II, IV, V, VI, VII, VIII, and IX against Defendants Crocamo

and Luzerne County will be DISMISSED. (Doc. 53-1).

A. JAVITZ’S FIRST AMENDMENT CLAIMS

Javitz asserts First Amendment Right of Association (Count II)2 and Retaliation

(Count V) claims. Defendants Crocamo and Luzerne County submit that these claims should

be dismissed for failure to state a claim and as a matter of law.

1. First Amendment Right of Association (Count II)

Javitz’s First Amendment right of association claim is based on allegations that she

was not hired to positions she alleges she was otherwise qualified for due to her non-

association with Defendants. Specifically, Javitz alleges her non-hire was due to her exercise

of her First Amendment free association rights, and specifically that she was not hired due to

her political non-association with Crocamo, and that. (Doc. 53-1, ¶¶ 152-155). This is simply

not enough to state a claim of a violation of her First Amendment Right of Association.

The First Amendment right to free association prohibits public employers from

compelling an employee to relinquish or to adopt certain political associations to secure and

retain employment, unless the position includes a policy-making function necessitating

political fidelity to public officeholders. Wuestling v. Lackawanna Cnty., 2013 WL 785260, at

*3 (M.D. Pa. 2013); citing Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976);

Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Javitz’s complaint must

allege that (1) she was employed at a public agency in a position that does not require political

affiliation; (2) she engaged in constitutionally protected conduct; and (3) such conduct was a

2 Javitz also asserts a First Amendment Right to Speech and Petition claim (Count

III), and though the motion to dismiss (Doc. 56) appears to seek dismissal of all claims against

the Defendants, the brief in support of that motion (Doc. 64) does not address that Count and

as such, will not be addressed by the Court.

substantial or motivating factor in the government's employment decision. Id.; citing Galli v.

N.J. Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir. 2007). The third prong implicitly

requires sufficient factual assertions which raise an expectation that discovery will reveal

evidence of defendants' knowledge of the protected conduct as well as causation. Galli at 275.

Javitz’s complaint fails to sufficiently allege that her conduct was a factor in the

employment decision. Javitz makes no other assertion that would remotely raise an

expectation that discovery might reveal evidence of knowledge of protected conduct and

causation. As such, Javitz’s First Amendment right to association claim (Count II) shall be

dismissed.

2. First Amendment Retaliation (Count V)

To prevail on a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff

must prove that “(1) [s]he engaged in ‘constitutionally protected conduct,’ (2) the defendant

engaged in ‘retaliatory action sufficient to deter a person of ordinary firmness from exercising

[her] constitutional rights,’ and (3) ‘a causal link [existed] between the constitutionally

protected conduct and the retaliatory action.’” Baloga, 927 F.3d at 752 (quoting Palardy v.

Twp. of Millburn, 906 F.3d 76, 80-81 (3d Cir. 2018)). Here, Defendants Crocamo and Luzerne

County assert that Javitz’s First Amendment retaliation claim fails as a matter of law as it is

barred by collateral estoppel and failure to meet the ordinary firmness standard.

Javitz’s First Amendment retaliation claim is based on allegations that she was

retaliated against for bringing the first lawsuit against Defendants related to the purportedly

“false and fabricated” testimony of Watchilla in Javitz I. The trial court in Javitz I determined

that there was no basis to consider Watchilla’s testimony manufactured, fabricated or

fraudulent, and the Third Circuit affirmed the same. See Javitz I, 2022 WL 3108031 at *6, 8;

Javitz v. Luzerne Cnty., 2023 WL 5842299, at *3 (3d Cir. 2023).

Collateral estoppel, or issue preclusion, prevents a party from successive litigation of

a factual or legal issue that was previously litigated and resolved as an essential part of the

prior court's determination, even if the issue reappears as part of a different claim. Foster v.

Township of Pennsauken, 2017 WL 2780745, at *7–8 (D.N.J. 2017); Taylor v. Sturgell, 553 U.S.

880, 892 (2008). The doctrine of collateral estoppel is intended to avoid repetitive litigation,

permit parties to rely on prior judgments, and allow an adversary a sense of repose following

the resolution of an issue by the courts. Id.; Hailey v. City of Camden, 650 F. Supp. 2d 349, 354

(D.N.J. 2009) (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 4416 (2d ed. 2002)). The prerequisites for the application of

collateral estoppel are satisfied when: (1) the issue sought to be precluded is the same as that

involved in the prior action; (2) that issue was actually litigated; (3) the issue was determined

by a final and valid judgment; and (4) the determination was essential to the prior judgment.

Id. citing Hailey, 650 F. Supp. 2d at 354 (quoting Peloro v. United States, 488 F.3d 163, 174-75

(3d Cir. 2007)).

Here, Javitz’s First Amendment retaliation claim is based on allegations that

Defendants retaliated against her by presenting false testimony in Javitz I. This is precisely the

issue that was litigated in Javitz I, and affirmed by the Third Circuit. As such, the first and

second prongs of a finding of collateral estoppel are satisfied. There was also a full and final

judgment here, and the finding of the trial and appellate court was essential to the prior

judgment. As such, the third and fourth prongs are satisfied. Therefore, Javitz’s First

Amendment retaliation claim (Count V) shall be dismissed.

B. JAVITZ’S MONELL CLAIM

In Count IV, Javitz makes a claim pursuant to Monell v. Dep't of Soc. Servs., 436 U.S.

658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A Monell claim is a specific type of § 1983

claim where a plaintiff must demonstrate that a constitutional violation was caused by a

policy, custom, or practice of a municipality. Id.; Beck v. City of Pittsburgh, 89 F.3d 966, 971

(3d Cir. 1996); Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014). However,

where there has been no constitutional harm, a defendant cannot be liable under § 1983 and

Monell. Lansberry v. Altoona Area School District, 356 F.Supp.3d 486, 501 (W.D. Pa. 2018)

(internal citations omitted). Given that this Court has found that Javitz’s complaint fails to

state a claim, there can be no Monell claim against the municipality, and the Court will dismiss

Count IV.4

C. JAVITZ’S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

In Count VII, Javitz alleges an intentional infliction of emotional distress claim against

Defendant Crocamo, asserting that she and Defendant Watchilla “willfully caused the

fabrication and presentation of false information in the trial” of Javitz I, and these acts were

“outrageous” and done “intentionally and/or with extremely wanton and willful disregard

for the rights of Plaintiff.” While the majority of the allegations in this count are against

former Defendant Bufalino, as to Defendant Crocamo, Javitz asserts only that Crocamo knew

Javitz personally and allowed Bufalino to put on untrue testimony (Doc. 53-1, at ¶¶ 187-210).

The elements of a cause of action for an intentional infliction of emotional distress are

“(1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial

4 The Court notes as well that Javitz’s complaint is devoid of any facts or allegations

that establish any policy, practice, or custom that would give rise to a Monell claim.

probability of causing, severe emotional distress; (3) a causal connection between the conduct

and injury; and (4) severe emotional distress.” Fouad v. Milton Hershey School and Trust, 2020

WL 8254470, at *24 (M.D. Pa. 2020); Toney v. Chester County Hosp., 961 A.2d 192, 201 (Pa.

Super. 2008) (stating that “at a minimum,” a complaint must sufficiently plead facts that

correspond with the Restatement [Second] of Torts). More specifically:

[T]he conduct must be 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 any civilized society. ... [I]t has not been enough that

the defendant has acted with intent which is tortious or even criminal, or that

he has intended to inflict emotional distress, or even that his conduct has been

characterized by “malice,” or a degree of aggravation that would entitle the

plaintiff to punitive damages for another tort.

Id.; Toney, 961 A.2d at 202 (quoting Reardon v. Allegheny College, 926 A.2d 477,

488 (Pa. Super. 2007)).

As the court in Fouad outlined, Pennsylvania law sets a precise threshold for

intentional infliction of emotional distress claims, and It is difficult to make out a cognizable

claim for intentional infliction of emotional distress, in no small part because “the conduct

must be ‘so extreme in nature as to go beyond all possible bounds of decency such that it

would be regarded as utterly intolerable to civilized society.’” Fouad, 2020 WL 8254470, at

*25; quoting Regan v. Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa. 1999). Further,

“courts have been chary to allow recovery for a claim of intentional infliction of emotional

distress. Only if conduct which is extreme or clearly outrageous is established will a claim be

proven.” Fouad, 2020 WL 8254470, at *25; quoting Hoy v. Angelone, 554 Pa. 134, 720 A.2d

745, 753-54 (Pa. 1998). The Restatement (Second) of Torts instructs that “[i]t has not been

enough that the defendant has acted with intent which is tortious or even criminal, or that he

has intended to inflict emotional distress, or even that this conduct has been characterized by

‘malice,’ or a degree of aggravation that would entitle the plaintiff to punitive damages for

another tort.” Id.; Restatement (Second) of Torts § 46, comment d; Hoy, 720 A.2d at 754.

Javitz’s claim for intentional infliction of emotional distress fails for two reasons. First,

even taking all allegations as true for purposes of a motion to dismiss, the allegations do not

create a sufficient basis for a cause of action of intentional infliction of emotional distress.5

Second, as already determined, supra, the issue of the presentation of false testimony has

already been litigated and determined to be without merit. For these reasons, Javitz’s

intentional infliction of emotional distress claim (Count VII) shall be dismissed.

D. JAVITZ’S § 1983 CONSPIRACY AND COMMON LAW CONSPIRACY CLAIMS

In Count I (§ 1983 consipiracy) and Count VI (common law conspiracy), Javitz alleges

that Defendants Crocamo and Luzerne County conspired with Defendants Bufalino and

Watchilla to provide false testimony in Javitz I. As discussed supra, Javitz fails to state a claim

for any underlying violations of § 1983. As such, her § 1983 conspiracy claims fail because

she has not identified an underlying constitutional right that Defendants allegedly conspired

to violate. Holley v. Matos, 2023 WL 35325, at *3 (M.D. Pa. 2023); see Jutrowski v. Township of

Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018); see also Clayworth v. Luzerne County, 513 F.

App'x 134, 138 (3d Cir. 2013) (nonprecedential) (“[B]ecause [plaintiff] failed to establish an

5 Cases which have found a sufficient basis for a cause of action of intentional infliction

of emotional distress have had presented only the most egregious conduct. Fouad, 2020 WL

8254470, at *26; Velardo v. Lewko, No. 3:18-CV-1885, 2019 WL 5095657, at *11-12 (M.D. Pa.

Aug. 22, 2019), report and recommendation adopted, No. 3:18-CV-1885, 2019 WL 4391444

(M.D. Pa. Sept. 13, 2019); Hoy, 720 A.2d at 754; see e.g., Papieves v. Lawrence, 437 Pa. 373,

263 A.2d 118 (1970) (defendant, after striking and killing plaintiff's son with automobile, and

after failing to notify authorities or seek medical assistance, buried body in a field where

discovered two months later and returned to parents (recognizing but not adopting section

46)); Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236 (1981) (defendants

intentionally fabricated records to suggest that plaintiff had killed a third party which led to

plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265

(3d. Cir. 1979) (defendant's team physician released to press information that plaintiff was

suffering from fatal disease, when physician knew such information was false).

underlying violation of his constitutional rights, his [civil rights] conspiracy claim also fails.”).

Similarly, Javitz’s common law conspiracy claim is based on allegations related to her

allegations of the actions of the Defendants in Javitz I, which this Court has determined, supra,

do not suffice to make a claim of any underlying tort. As such, Javitz’s common law claim of

conspiracy fails. See Gas Drilling Awareness Coalition v. Powers, 2012 WL 5862471, at *5 (M.D.

Pa. 2012); Phillips v. Selig, 2008 PA Super 244, 959 A.2d 420, 437 (Pa.Super.Ct.2008) (“absent

a civil cause of action for a particular act, there can be no cause of action for civil conspiracy

to commit that act.”) For these reasons, Javitz’s § 1983 and common law conspiracy claims

will be dismissed.

E. JAVITZ’S BREACH OF LEGISLATIVE ENACTMENT CLAIM

In Count IX, Javitz asserts a claim of “breach of legislative enactment, home rule

charter, personnel code” in which she alleges that Defendants breached the provision of the

Luzerne County Home Rule Charter at Article I, Section 1.04 and not following its “merit

hiring process.” (Doc. 53-1, ¶¶ 222-225). Defendants assert that no private right of action

exists under Luzerne County’s Home Rule Charter. Javitz asserts that the Home Rule Charter

and Personnel Code implicitly contain a private right of enforcement because it was drafter

“by the citizens of the County of Luzerne” who “wanted to ensure that those hired into public

service were put in those positions based on a merit hiring principle not by political

patronage.” (Doc. 70, at 36-37). Javitz fails to cite to any provision that would allow for a

private right of action under the Home Rule Charter, arguing instead that the Court should

find a private right is implied simply by existence of the law itself.

When the language of a statute does not explicitly provide for a private cause of

action, Pennsylvania utilizes a three-prong analysis as a framework to determine whether a

statute implicitly creates one. Est. of Witthoeft v. Kiskaddon, 733 A.2d 623, 626 (Pa. 1999) (citing

Cort v. Ash, 422 U.S. 66 (1975)). Specifically, a court should look to (1) whether the plaintiff

is one of the class for whose special benefit the statute was enacted; (2) whether there is any

indication of legislative intent, explicit or implicit, either to create such a remedy or to deny

one; and (3) whether it is consistent with the underlying purposes of the legislative scheme to

imply such a remedy for the plaintiff. The second factor has been recognized as the “central

inquiry” of the analysis. Id. Like in Witthoeft, the Court does not find any language in the

Home Rule Charter or the Personnel Code that suggests that private parties may bring an

action for enforcement or damages. Javitz does not offer any legislative history or other

insight that would illuminate the intent behind the Charter or Code. Further, Javitz notes in

her brief in opposition to the instant motion to dismiss (Doc. 70) that the remedy that does

exist is a claim under § 1983. For these reasons, the Court finds that no private right of action

exists under the County’s Home Rule Charter or Personnel Code, either explicitly or implied,

and therefore Javitz’s claim for Breach of Legislative Enactment should be dismissed.

F. JAVITZ’S FEDERAL DECLARATORY JUDGMENT CLAIM

In Count VIII, Javitz seeks a declaratory judgment that the Court stop the County

from disparaging employees for the purpose of terminating, harming, and taking away

constitutional rights, and further that the County be directed to comply with the requirements

of the Home Rule Charter and Personnel Code to enforce the merit selection process and

remedy past violations of the merit selection process. As the Court has determined that no

private right of action exists under the Luzerne County Home Rule Charter or Personnel

Code, she cannot use the Declaratory Judgment Act to seek relief. See Levy-Tatum v. Navient

Solutions, Inc., 183 F.Supp.3d 701, 709 (E.D. Pa. 2016) (Plaintiff cannot use the Declaratory

Judgment Act to seek relief for alleged violations of a statute that, in the first instance, does

not provide her with either a private right or a private remedy.) As such, the Court will dismiss

Javitz’s claim for declaratory judgment.

G. JAVITZ’S CLAIM FOR PUNITIVE DAMAGES

Finally, Javitz makes a claim for punitive damages against the Defendants. The law in this

field has been settled since 1981, when the Supreme Court held that municipalities are

immune from punitive damages for the bad-faith actions of their officials. Samuels v. Pocano

Mountain Regional Police Dept., 2014 WL 972215, at *10 (M.D. Pa. 2014); see City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 267–68, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); see also Doe

v. County of Centre, 242 F.3d 437, 455 (3d Cir. 2001) (observing that City of Newport “stands for

the proposition that municipalities, and more broadly, state and local governmental entities,

are immune from punitive damages” under § 1983). Given this well-settled principle of civil

rights litigation, Javitz’s claim for punitive damages will be dismissed with respect to

Defendant Luzerne County and Defendant Crocamo in her official capacity.

IV. LEAVE TO AMEND

The Third Circuit has instructed that district courts generally must permit a curative

amendment if a complaint is vulnerable to dismissal for failure to state a claim unless an

amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). However, the Third Circuit has also acknowledged that a district court has

“substantial leeway in deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d

360, 373 (3d Cir. 2000). Here, considering the deficiencies with Plaintiff's amended complaint

outline supra, amendment would not futile or inequitable to Defendants. Thus, the Court will

grant Plaintiff an opportunity to cure the deficiencies with her amended complaint. The

amended complaint should consider the Court’s findings above and be complete in all

respects.

V. CONCLUSION

For the foregoing reasons, the motion to dismiss filed by Defendants Crocamo and

Luzerne County is GRANTED. (Doc 56). Javitz is directed to file an amended complaint

within 21 days.

An appropriate Order follows.

BY THE COURT:

Dated: September 16, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge