Flex v. Allentown Police Pension Fund Association

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

JENITH FLEX, :

Plaintiff, :

:

v. : Civil No. 5:24-cv-06601-JMG

:

ALLENTOWN POLICE PENSION FUND :

ASSOCIATION, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. May 14, 2025

I. Background

Plaintiff Jenith Flex alleges she was deprived of her property right to surviving spouse

disability pension benefits without due process of law. ECF No. 1, at 2. Plaintiff married Anthony

Scocca (“the decedent”) a police officer for the City of Allentown in 2011. Id. at ¶¶ 20-21. Shortly

after receiving a cancer diagnosis in 2019, the decedent stopped working as a police officer. Id. at

¶ 25. In January 2020, the decedent applied for and received a disability retirement pension from

the City of Allentown. Id. at ¶ 32. About one month later, the decedent moved into his parents’

home. Id. at ¶ 38. During the decedent’s time living with his parents and up until his death, Plaintiff

alleges that the decedent’s father and sister, George and Dina Scocca, “engaged in [a] three (3)

year intentional and reckless campaign to estrange Plaintiff from her sick and dying husband,

freeze Plaintiff out of joint accounts with her husband, divest Plaintiff of insurance benefits and

other financial benefits required for the care of her husband, fraudulently manipulated the finances

of Plaintiff and her husband, falsified marriage information to the Commonwealth of Pennsylvania

after the death of Plaintiff’s husband, and cruelly and maliciously spearheaded efforts to deprive

Plaintiff of police pension benefits that are still due and owing to Plaintiff.” Id. at ¶¶ 138, 142. The

decedent passed away on March 30, 2022. Id. at ¶ 90. Shortly thereafter, “Plaintiff received a call

from Defendant Jeff Glazier, informing her that Scocca’s parents were contesting her claim to [the

decedent’s] police pension on the basis that Plaintiff had ‘abandoned’ the marriage.” Id. at ¶ 98.

The Allentown Police Pension Fund Association (“APPFA”) held a hearing on Plaintiff’s

entitlement to the decedent’s pension benefits followed by a “written opinion and Order denying

Plaintiff pension benefits on the basis that she willfully and maliciously deserted the marriage.”

Id. at ¶¶ 103, 107.

Plaintiff filed a three-count Complaint on December 11, 2024, alleging violations of 42

U.S.C. § 1983 and intentional infliction of emotional distress under Pennsylvania state law. ECF

No. 1. Pending before this Court are Defendants George and Dina Scocca’s (“Scocca Defendants”)

Motion to Dismiss, and Defendants Allentown Police Pension Fund Association, Matthew Tuerk,

Jeff Glazier, Bina Patel, Cory Marsteller, Ryan Koons, Iboyla Balog, Bryan Guzeley, James Gress,

Daryl Hendricks, and Eric Stauffer’s (“Pension Board Defendants”) Motion to Dismiss. ECF Nos.

21, 28.

II. Standard

“To survive a motion to dismiss [under Federal Rule of Procedure 12(b)(6)], a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at

555). “Although we must accept the allegations in the complaint as true, ‘we are not compelled to

accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation.’” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013), as amended (June 14,

2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007)).

III. Discussion

A. Rooker-Feldman Doctrine

The Scocca Defendants first allege that Plaintiff’s lawsuit is barred by the Rooker-Feldman

doctrine which “prohibits a litigant from attacking the results of state-court litigation in federal

court.” Shaikh v. Dep't of Banking & Ins., Div. of Ins., 2024 WL 1929966, at *8 (D.N.J. Apr. 30,

2024). However, “[t]he Supreme Court has made clear ... that the Rooker-Feldman doctrine only

applies to state judicial proceedings, not administrative or legislative proceedings.” Id. (quoting

Nat'l R.R. Passenger Corp. v. Pa. Public Utility Com'n, 342 F.3d 242, 257 (3d Cir. 2003)); Stone

v. New Jersey Admin. Off. of the Cts., 557 F. App'x 151, 153 (3d Cir. 2014) (“Rooker–Feldman

does not bar review of claims never decided by the state courts.). Verizon Md., Inc. v. Public Serv.

Comm'n of Md., 535 U.S. 635, 644 n. 3 (2002) (“The doctrine has no application to judicial review

of executive action, including determinations made by a state administrative agency.”). Here,

Plaintiff’s lawsuit is attacking the decision of the APPFA, a state administrative agency. As

Defendants admit, Plaintiff did not file an appeal with the Lehigh County Court of Common

Please, and, therefore, the Rooker-Feldman doctrine does not apply in the absence of an affirmative

state court decision. ECF No. 21, at 7,9; see Shaikh, 2024 WL 1929966, at *8; Kaul v. Christie,

372 F. Supp. 3d 206, 243 (D.N.J. 2019).

B. Private Individual Liability Under § 1983

The Scocca Defendants next argue that because they are not employed by a government

entity, they cannot be subject to Section 1983 liability. ECF No. 21, at 9. “[A] private individual

may be liable under Section 1983 if he willfully participates in a joint action or conspiracy with

the state actor to deprive the plaintiff of a constitutional right.” Gallagher v. Green, 146 F.Supp.3d

652, 660 (E.D. Pa. 2015) (internal citation and quotation omitted). “To establish liability on the

part of the private actor, the Plaintiff must show that there was an agreement, understanding or

'meeting of the minds' to violate [Plaintiff's] rights.” Id. (internal citation and quotation omitted);

Startzell v. City of Phila., Pa., 533 F.3d 183, 205 (3d Cir. 2008); see Mikhail v. Kahn, 991 F. Supp.

2d 596, 645 (E.D. Pa.), aff'd, 572 F. App'x 68 (3d Cir. 2014) (quoting Great W. Mining & Mineral

Co., 615 F.3d 159, 178 (3d Cir. 2010) (“he must plead ‘enough factual matter (taken as true) to

suggest that an agreement was made, in other words, plausible grounds to infer an agreement’”).

To survive a motion to dismiss:

A plaintiff alleging a § 1983 conspiracy must plead with particularity the “circumstances”

of the alleged wrongdoing in order to place the defendants on notice of the precise

misconduct with which they are charged. Only allegations of conspiracy which are

particularized, such as those addressing the period of the conspiracy, the object of

the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose,

will be deemed sufficient....[A]n inference [of conspiracy] ... from the Complaint ... [is] no

substitute for the requirement that the circumstances of the conspiracy be pleaded with

specificity.

M & M Stone Co. v. Pennsylvania, 2008 WL 4467176, *20, (E.D. Pa. Sept. 29, 2008).

Plaintiff’s Complaint alleges:

Defendant George Scocca and Defendant Dina Scocca engaged in three (3) year intentional

and reckless campaign to estrange Plaintiff from her sick and dying husband – Anthony

Scocca - freeze Plaintiff out of joint accounts with her husband, divest Plaintiff of insurance

benefits and other financial benefits required for the care of her husband, fraudulently

manipulated the finances of Plaintiff and her husband, falsified marriage information to the

Commonwealth of Pennsylvania after the death of Plaintiff’s husband, and cruelly and

maliciously spearheaded efforts to deprive Plaintiff of police pension benefits that are still

due and owing to Plaintiff by collaborating with and exercising malicious influence upon

the Allentown Police Pension Fund Association.

ECF No. 1, at 2. Although this Complaint proposes a general timeframe and object of the alleged

conspiracy, it fails to allege specific conduct regarding a meeting of the minds or an agreement

between the Scoccas and the APPF or its Board Members to violate Plaintiff’s rights. “By contrast,

as the Third Circuit Court of Appeals explained in Great Western Mining & Mineral Co., the claim

of ‘specific conduct’ ‘that the private party defendants had bribed the state-court judge to cause

him to issue an injunction in their favor’” was sufficient to allege an agreement had been made.

Mikhail, 991 F. Supp. 2d at 646 (quoting Great W. Mining & Mineral Co., 615 F.3d at 179). “A

conspiracy cannot be found from . . . adverse rulings absent specific facts demonstrating an

agreement to commit the alleged improper actions.” Capogrosso v. The Supreme Ct. of New Jersey,

588 F.3d 180, 185 (3d Cir. 2009). In the absence of allegations of specific conduct, the Court

cannot infer from the adverse ruling and legal conclusions in the Complaint that there was a

conspiracy. Plaintiff has failed to meet the heightened requirements for pleading a conspiracy.

Therefore, she is precluded from bringing a Section 1983 claim against the Scocca Defendants as

private individuals.1

C. Intentional Infliction of Emotional Distress

The Scocca Defendants also claim that Plaintiff has failed to allege facts to support an

intentional infliction of emotional distress (IIED) claim against them. ECF No. 21, at 12. “To plead

a plausible claim of intentional infliction of emotional distress under Pennsylvania law, a plaintiff

1 The Scocca Defendants also allege they are entitled to both testimonial immunity and qualified

immunity. ECF No. 21, at 10-12. However, given the Court’s finding that the Scoccas cannot be

held liable under Section 1983 because they are private individuals, the Court does not need to

reach the alternatives issues of testimonial and qualified immunity.

must allege that: (1) the defendant's conduct was extreme or outrageous; (2) the conduct was

intentional or reckless; (3) the conduct caused emotional distress; and (4) the plaintiff's distress is

severe.” Kardosh v. McCallin, 2025 WL 1314090, at *5 (E.D. Pa. May 5, 2025). “To recover under

this theory, the 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

a civilized community.’” Robinson v. American Reading Co., 2025 WL 1243058, at *6 (E.D. Pa.

April 29, 2025) (quoting Banyas v. Lower Bucks Hosp., 437 A.2d 1236 (Pa. Super. Ct. 1981)).

Taken in the light most favorable to Plaintiff, the facts demonstrate that the Scoccas transferred

money out of Plaintiff’s joint bank account while her husband was incoherent, incorrectly informed

Plaintiff that the hospital would not permit her to visit the decedent, took over Plaintiff’s joint

accounts to pay bills without her permission, falsified the decedent’s signature on a life insurance

designation form replacing Plaintiff as the beneficiary, inaccurately informed the funeral director

that Plaintiff and the decedent were divorced, and re-titled Plaintiff’s vehicles and had them towed

from her apartment parking area without her knowledge. ECF No. 1, at ¶¶ 41, 49-50, 53-54, 64,

69-71, 93, 97. As a result, Plaintiff has experienced severe emotional distress including panic

attacks, anxiety, trouble sleeping, humiliation, fight or flight responses, and feelings of

helplessness. Id. at ¶ 145. The Court finds these factual allegations sufficient to state a claim for

IIED against the Scoccas, as their alleged targeted efforts to estrange Plaintiff from her husband

and intimidate Plaintiff into giving up her marital rights and assets could be considered extreme

and outrageous. See id. at ¶ 142-43.

D. Quasi-Judicial Immunity

The Pension Board Defendants first allege that to the extent they are being sued in their

official capacities; they are entitled to quasi-judicial immunity because their role is “‘functionally

comparable’ to that of a judge.” ECF No. 28, at 3. In determining whether a government official’s

job function is quasi-judicial, a court must balance six factors known as the Butz factors:

(a) the need to assure that the individual can perform his functions without harassment or

intimidation; (b) the presence of safeguards that reduce the need for private damages

actions as a means of controlling unconstitutional conduct; (c) insulation from political

influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f)

the correctability of error on appeal.

Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quoting

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985)); Butz v. Economou, 438 U.S. 478, 512 (1978).

Plaintiff does not appear to contest whether the Pension Board Members perform certain

adjudicatory functions including distributing pensions and designating beneficiaries and would

generally be entitled to quasi-judicial immunity. See ECF No. 29, at 9-10 (restating Defendants’

characterization of their adjudicatory functions and remarking that “purporting to adjudicate the

issue of fault divorce is well outside of the APPF’s described adjudicatory functions.”). However,

in any event, after evaluating the Butz factors, the Court concludes that the individual APPF Board

Members were performing functions comparable to that of a judge when they issued the opinion

that Plaintiff had forfeited her right to surviving spouse pension benefits. Although not every Butz

factor must be satisfied, the Court finds at least four of the six factors weigh in favor of a finding

of quasi-judicial immunity here. Keystone, 631 F.3d at 100. With the exception of the mayor who

is an elected official, the other Board members are “determined by the City of Allentown Code,”

and, therefore, insulated from political influence. ECF No. 28, at 6. The Board’s decisions are

“constrained by outside law” and not “purely discretionary” because it “is required by statute to

consider [precedent from] the Municipal Police Pension Law, the City of Allentown Police Pension

Fund Ordinance and is required to make findings and explain its reasoning in written opinions.”

Id.; Keystone, 631 F.3d at 98. Pension Board hearings are adversarial under Keystone because the

Board is required to give affected parties reasonable notice of a hearing and an opportunity to be

heard, parties may present evidence and witness testimony in support of their case, and parties may

cross examine opposing parties’ witnesses. Keystone, 631 F.3d at 99. Finally, erroneous Pension

Board decisions can be corrected on appeal by the Court of Common Pleas. ECF No. 28, at 7.

However, “[t]he fact that an administrative agency performs certain adjudicatory functions

will not justify the extension of quasi-judicial immunity to non-adjudicatory functions of the same

agency. . . Moreover, quasi—judicial immunity will not apply to actions taken by officials within

a quasi-judicial branch of a state administrative agency that fall outside of their adjudicatory

function.” Pollina v. Dishong, 98 A.3d 613, 621–22 (Pa. Super. 2014) (internal citations omitted).

Plaintiff’s larger concern is that “deciding an issue of fault divorce [was] not within the scope of”

the Pension Board’s adjudicatory functions. Id. at 9. Therefore, Plaintiff argues that the Board

Members should not be entitled to quasi-judicial immunity. Defendants allege that the Board was

permitted and required to make findings of fact and law as to whether “Plaintiff ‘maliciously or

willfully’ abandoned the decedent as the basis for prohibiting her from receiving his pension

benefits” under administrative procedure laws. ECF No. 28, at 10. Moreover, Defendants point to

1 Pa. C.S. § 1921(c) which permits Pennsylvania administrative agencies to consider “other

statutes upon same or similar subjects” to discern the intention of the General Assembly where the

words of a statute are ambiguous. Id. at 10-11. Therefore, Defendants argue that the Pension Board

was permitted to consider Pennsylvania divorce and intestate law to aid its determination of

whether Plaintiff had willfully deserted her marriage because there was no guidance in Pension

Fund Ordinance. See ECF No. 1, at ¶ 11 (“The Ordinance does not indicate how the Association

is to determine if a spouse ‘willfully or maliciously’ deserted a retired police officer.”). The Court

agrees and finds that the Pension Board was acting within the scope of its adjudicatory function

when it made the factual and legal determination that Plaintiff had willfully deserted the decedent

“for at least one year prior to his death,” thereby forfeiting her right to surviving spouse pension

benefits. Ex. A, ECF No. 21, at 17-18. The Court further disagrees with Plaintiff’s characterization

of the APPFA opinion as purporting to grant her a fault divorce in the absence of the presence of

the aggrieved spouse. ECF No. 29, at 4, 6.

The individual Pension Board Members are, therefore, entitled to quasi-judicial immunity,

and Plaintiff’s claims against them are dismissed.

E. Due Process

The Pension Board Defendants next allege that Plaintiff has failed to state a claim under

Section 1983 for either a substantive or procedural due process violation. “To state a claim under

42 U.S.C. § 1983, a plaintiff must allege a person acting under color of state law engaged in

conduct that violated a right protected by the Constitution or laws of the United States. Morrow v.

Balaski, 719 F.3d 160, 165–66 (3d Cir. 2013), as amended (June 14, 2013).

a. Substantive Due Process

“To establish a substantive due process claim, a plaintiff must prove the particular interest

at issue is protected by the substantive due process clause and the government's deprivation of that

protected interest shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).2 “In

other words, here, plaintiffs must have been deprived of a fundamental property interest under the

2 The Pension Board Defendants also correctly point out that Plaintiff cannot bring a due process

claim against them under the Fifth Amendment because they are not federal actors. The Court

agrees. “A due process cause of action under the Fifth Amendment against state actors is not

actionable under section 1983. The Fifth Amendment's Due Process Clause applies to the federal

government, while the Fourteenth Amendment's Due Process Clause applies to state and local

governments. Section 1983 is a vehicle by which plaintiffs can assert claims against state actors,

making the Fourteenth Amendment the proper constitutional amendment to assert due process

protections claims.” Garrett v. Sheeley, 2023 WL 4844051, at *2 (N.D.W. Va. Feb. 6, 2023). To

the extent Plaintiff seeks to raise a Fifth Amendment due process claim against Defendants, it is

dismissed. Her due process claims will be analyzed under the Fourteenth Amendment.

Constitution.” Id. “Deprivation violates due process only when it ‘shocks the conscience,’ which

encompasses ‘only the most egregious official conduct.’” Id. (quoting United Artists Theatre

Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir.2003)). It is important to note that

“‘not all property interests worthy of procedural due process protection are protected by the

concept of substantive due process’ . . . Rather, a property interest must be ‘fundamental’ under

the United States Constitution to be subject to substantive due process protection.” Gikas v.

Washington Sch. Dist., 328 F.3d 731 (3d Cir. 2003) (quoting Reich v. Beharry, 883 F.2d 239, 244

(3d Cir. 1989)).

The parties dispute whether Plaintiff has a protected property interest in her spousal

pension benefits. Our sister court, the Middle District of Pennsylvania, “has previously determined

that a pension benefit is not a fundamental right entitled to substantive due process protection.”

Brace v. Cnty. of Luzerne, 873 F.Supp.2d 616, 626 (M.D. Pa., 2012), aff’d, 535 F. App’x 155 (3d

Cir. 2013). Plaintiff, in opposition to the Pension Board Defendants’ Motion to Dismiss, argues

that her case is stronger than the others decided in this Circuit because she was already receiving

the pension benefits, not claiming a future right to them. ECF No. 25, at 14. However, the decisions

of the Middle District found “a pension benefit, whether vested or unvested, does not constitute

property entitled to substantive due process protection in the Third Circuit.” Kegolis v. Borough of

Shenandoah, 2006 WL 3814311, at *3 (M.D. Pa. Dec. 27, 2006). That holding was specifically

applied in the context of a plaintiff who was already receiving benefits in Brace v. County of

Luzerne. Brace v. Cnty. of Luzerne, 873 F.Supp.2d 616 (M.D. Pa., 2012), aff’d, 535 F. App’x 155

(3d Cir. 2013). In Brace, the plaintiff, a retired Deputy Clerk who had been receiving regular

retirement benefits, subsequently entered into a written Plea Agreement for Corrupt Receipt of a

Reward for Official Action Concerning Programs Receiving Federal Funds, and as a result, had

his benefits terminated by the Retirement Board. Id. at 619. The Court in Brace determined that

the plaintiff failed “to allege that he was denied a property interest entitled to substantive due

process protection,” and this Court reaches the same conclusion. Id. at 626.

Even if Plaintiff had a protected property interest in the decedent’s pension benefits, her

substantive due process claim would fail because “[her] allegations do not support ‘conscious

shocking behavior entitl[ing] Plaintiff to relief.’” Brace, 873 F.Supp.2d at 627 (quoting Schimes v.

Barrett, 2010 WL 1330179, at *8 (M.D. Pa. Mar. 30, 2010), aff’d 427 F. App’x 138 (3d Cir. 2011)).

“‘Conduct intended to injure in some way unjustifiable by any government interest is the sort of

official action most likely to rise to the conscience-shocking level.’” Schimes v. Barrett, 427 F.

App'x 138, 142 (3d Cir. 2011) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

Plaintiff has not shown that the state actors denying her right to pension benefits acted with the

intent to injure her in some unjustifiable way. The alleged conduct by the Pension Board

“purporting to decide an issue of law reserved exclusively to the jurisdiction of the Courts of the

Commonwealth of Pennsylvania” is not conscious shocking behavior sufficient to state a claim for

a substantive due process violation. ECF No. 1, at ¶ 133.

Plaintiff has failed to state a claim for substantive due process, and her claim is dismissed.

b. Procedural Due Process

“To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff

must allege that (1) he was deprived of an individual interest that is encompassed within the

Fourteenth Amendment's protection of ‘life, liberty, or property,’ and (2) the procedures available

to him did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34

(3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)). “To have a property

interest in a benefit, a person clearly must have more than an abstract need or desire for it. [Sh]e

must have more than a unilateral expectation of it. [Sh]e must, instead have a legitimate claim of

entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

The Pension Board Defendants appear to only dispute the second element of this claim,

whether Plaintiff was deprived of her property interest without due process of law. See ECF No.

28, at 9 (Defendants conceding that Plaintiff’s “property right is established [for procedural due

process purposes] under the Municipal Police Pension Law and the City of Allentown Home Rule

Charter”). “A deprivation of property should ‘be preceded by notice and opportunity for hearing

appropriate to the nature of the case.’” Templin v. Weaknecht, 2020 WL 1028054, at *2 (E.D. Pa.

Mar. 2, 2020) (quoting Cleveland Bd. of Educ. v. Loudermill, 740 U.S. 532, 542 (1985). “However,

‘a state cannot be held to have violated due process requirements when it has made procedural

protection available and the plaintiff has simply refused to avail himself of them.’” Id. (quoting

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)); Templin, 2020 WL 1028054, at *3. “If there is

a process on the books that appears to provide due process, the plaintiff cannot skip that process

and use the federal courts as a means to get back what he wants.” Alvin, 227 F.3d at 116.

Here, Plaintiff admits that she was given notice of the hearing, prompting her to submit

sixty pages of exhibits for the Pension Board’s consideration. ECF No. 1, at ¶¶ 103, 106. However,

she alleges that she was “unable to secure counsel in time for the hearing and informed counsel

for the [Pension Board] of the need to adjourn on multiple occasions.” Id. at ¶ 105. Therefore, it is

Plaintiff’s opinion that the Board’s written decision based on a hearing that neither her nor her

deceased husband could attend deprived Plaintiff of due process of law.3 She further restates the

3 Plaintiff also alleges that an attorney at the Pension Board hearing represented both the Scoccas

proceedings and the adjudicatory body itself. ECF No. 29, at 16. However, this allegation is not

contained in Plaintiff’s Complaint, and therefore, the Court will not consider this fact. Ahmed v.

Wells Fargo Bank, NA, 432 F. Supp. 3d 556, 561–62 (E.D. Pa. 2020) (quoting Schmidt v. Skolas,

770 F.3d 241, 249 (3d Cir. 2014)) (“In deciding a motion to dismiss, ‘courts generally consider

argument raised in opposition to the Pension Board Defendants’ quasi-judicial immunity: that the

Board exceeded the scope of its authority when it essentially decided the issue of fault divorce

without the presence of Plaintiff or her husband as the aggrieved spouse. For the reasons discussed

above, the Court is not persuaded by this argument and does not think the decision of the Board as

to willful abandonment in the context of spousal pension benefits goes so far as to decree an official

divorce.

Defendant argues that the Board did provide Plaintiff with notice and an opportunity to

respond, but Plaintiff failed to appear at the hearing. ECF No. 28, at 10. Moreover, Defendant

alleges that Plaintiff had an additional procedural remedy available to her, an appeal. See Title 2 §

753(a) (“A party who proceeded before a local agency under the terms of a particular statute, home

rule charter, or local ordinance or resolution shall not be precluded from questioning the validity

of the statute, home rule charter or local ordinance or resolution in the appeal); 42 Pa. C.S.A.

§933(2) (conferring jurisdiction on the courts of common pleas to hear appeals from government

agencies). “We have determined that ‘a state provides adequate due process when it provides

‘reasonable remedies to rectify a legal error by a local administrative body.’” Schimes v. Barrett,

427 Fed. Appx. 138, 141 (3d Cir. 2011) (quoting Bello v. Walker, 840 F.2d 1124, 1128 (3d

Cir.1988)). Although the general rule is that there is no exhaustion requirement for Section 1983

claims, the Court finds the fact that Plaintiff did not seek a state court appeal of the Board decision

on top of the fact that she also failed to attend the Board hearing, persuasive as to the question of

whether she availed herself of procedural protections to remedy the Board’s alleged error. Alvin,

only the allegations contained in the complaint, exhibits attached to the complaint, and matters of

public record.’”).

227 F.3d at 116. Plaintiff cannot state a claim for a due process violation on these facts. Her

procedural due process claim is dismissed.

F. Supplemental Jurisdiction

Finally, to the extent that Plaintiff’s Section 1983 claims which this Court had original

jurisdiction over have been dismissed, the Court declines to exercise supplemental jurisdiction

over Plaintiff’s remaining state law IIED claims. 28 U.S.C. § 1367 provides:

The district courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if –

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims

over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has

original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons

for declining jurisdiction.

Plaintiff’s IIED claims are dismissed.

IV. Conclusion

For the foregoing reasons, the Scocca Defendants’ Motion to Dismiss (ECF No. 21) and

the Pension Board Defendants’ Motion to Dismiss (ECF No. 28) are granted and all of Plaintiff’s

claims are dismissed. An appropriate order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge