Deluca v. City of Hazelton

• Decision Date: 20 October 2016
• Docket Number: CIVIL ACTION NO. 3:15-CV-02475
• Parties: CYNTHIA DELUCA, et al., Plaintiffs, v. CITY OF HAZELTON, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

CYNTHIA DELUCA, et al., Plaintiffs, v. CITY OF HAZELTON, et al., Defendants.

CIVIL ACTION NO. 3:15-CV-02475

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

October 20, 2016

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is a motion to dismiss (Doc. 10) Plaintiffs Cynthia DeLuca ("DeLuca") and DeLuca's Auto Repair and Towing, Inc.'s (collectively "Plaintiffs") Complaint (Doc. 1) filed by Defendants City of Hazleton, Hazleton Police Department, Frank V. DeAndrea, Jr., and Joseph Yannuzzi (collectively "Defendants").

Plaintiff DeLuca contends that Defendants removed her from the vehicle towing rotation list for the City of Hazleton in retaliation for protected First Amendment conduct, and in violation of her procedural and substantive due process rights under the Fourteenth Amendment. She also brings claims for defamation and commercial disparagement under Pennsylvania law.

For the reasons that follow, Defendants' motion to dismiss the Complaint will be granted in part and denied in part, with the following being the only remaining claims: Counts I, II, and III, alleging that Defendants City of Hazleton, Yannuzzi, and DeAndrea retaliated against Plaintiffs in violation of their First and Fourteenth Amendment rights, and Counts IV and V, alleging that Defendants City of Hazleton, Yannuzzi, and DeAndrea deprived Plaintiffs of a protected liberty interest without due process.

I. Factual Background

The facts, as set forth in Plaintiffs' Complaint (Doc. 1), are as follows:

Plaintiff Cynthia DeLuca is the owner of DeLuca's Auto Repair & Towing, Inc, which is in the business of towing vehicles. Defendant City of Hazleton maintains a rotation list of available companies to perform towing services at its request. Prior to June 9, 2015, DeLuca received towing assignments on a rotating basis with other approved towers. On June 9, 2015, however, DeLuca's Auto Repair & Towing, Inc, was removed from the towing rotation list after a posting on DeLuca's Facebook page accused the Hazleton Police Department, the Mayor of the City of Hazleton Joseph Yannuzzi, and the Chief of Police Frank V. DeAndrea, Jr., of criminal acts.

By a letter dated June 9, 2015, the City of Hazleton, acting through its Chief of Police, Frank V. DeAndrea, Jr., suspended DeLuca from towing vehicles for the City for a period of three years. The letter stated, in full:

In accordance with Hazleton Police Department Towing Service requirements section 1.06 SUSPENSION OF TOWING SERVICE(S) you are hereby notified that your business has been suspended from towing vehicles for the City of Hazleton.

The specific reasons for this suspension under section six Repeated conduct by any employee of the towing service of a nature which, by means of the relatlonshlp the service has with the Department, tends to demean the public image of the Department are as follows:

Facebook posting under your personal account have accused the Mayor of the City of Hazleton with being criminal and accepting bribes. This by means of the relationship DeLuca's Towing has with the City of Hazleton and the Hazleton Police Department, tends to demean the public image of the Department.

Your suspension shall be for three years. It shall commence immediately and shall end June 10, 2018. Prior to your towing service becoming eligible to receive service calls at the end of this suspension you must take appropriate remedial action. Your towing services recourse to this suspension is through civil litigation.

(Doc. 1, Ex. A, at 23). Thereafter, a news article about DeLuca's suspension appeared in a local newspaper. The article states, in pertinent part:

City officials have suspended a towing company from municipal service for three years over alleged remarks made on a Facebook page, but the owner believes she is the victim of a political vendetta.

In an interview with the Times Leader, Mayor Joe Yanuzzi (sic) did acknowledge that tower Cynthia DeLuca had supported a woman he considered his opponent in May's primary election, and criticized her for that support.

(Id. at 30-34, Ex. D).

In response to the notice of suspension, DeLuca, through her counsel, requested "either a rescission of the suspension or a hearing on the suspension in the nature of an appeal." (Id. at 25-26, Ex. B). On June 17, 2015, Defendant DeAndrea issued a revised notice of suspension which provided, in part:

The suspension is pursuant to Section 1.06 (C)(3) of the Towing Requirements Policy: "The commission of an act by an owner or manager of a towing service involving dishonesty or corruption, when the act directly or indirectly affects the health, welfare or safety of others". The Facebook posting under "Hazleton' s Corrupts" created under your name and Facebook account has accused the Hazleton Police Department, the Mayor, Frank Vito and I of being corrupt, accepting bribes and improperly discriminating against your towing company (which is untrue). I enclose a copy of the policy for your convenience. I note that you were given a copy of same when you were originally placed on the list, which you consented to.

. . .

I am copying your Attorney, Kimberly D. Borland, Esq. with this Notice. The Hazleton City Solicitor, Robert M. Cohen, Esq., advises Mr. Borland that no appeal hearing will be provided in this matter, his recourse is via suit, per Section 1.06(F) of the policy. Additionally, any suit claiming constitutional protection of free speech and association for this activity will be met with a counterclaim for defamation and attorney's fees.

(Id. at 28, Ex. C).

DeLuca alleges that approximately one week prior to issuance of the first suspension letter, she brought the Facebook posting to the attention of Defendant DeAndrea and informed him that, although the posting appeared on her Facebook page, she was not its author. DeLuca claims that her Facebook account had been hacked.

DeLuca further alleges that sometime in November of 2015, Defendant DeAndrea appeared at DeLuca's Auto Repair & Towing, Inc. and informed DeLuca that the reason her towing rights were suspended was because of her political support for Grace Cuozzo, who was Defendant Yannuzzi's political opponent in the May 2015 primary election for Mayor. Indeed, during the spring of 2015, DeLuca openly supported Cuozzo for Mayor of the City of Hazleton.

In light of the foregoing events, on December 23, 2015, DeLuca and her towing company filed a nine-count civil rights Complaint (Doc. 1) against Defendants.

The Complaint contains the following claims: (1) Count I alleging that Defendants City of Hazleton and Hazleton Police Department retaliated against Plaintiffs in violation of their First and Fourteenth Amendment rights; (2) Count II alleging that Defendant Yannuzzi retaliated against Plaintiffs in violation of their First and Fourteenth Amendment rights; (3) Count III alleging that Defendant DeAndrea retaliated against Plaintiffs in violation of their First and Fourteenth Amendment rights; (4) Count IV stating a procedural due process claim, alleging that Defendants City of Hazleton, Hazleton Police Department, Yannuzzi, and DeAndrea deprived Plaintiffs of their protected liberty interest without a pre-deprivation hearing; (5) Count V stating a procedural due process claim, alleging that Defendants City of Hazleton, Hazleton Police Department, Yannuzzi, and DeAndrea deprived Plaintiffs of their protected liberty interest without a post-deprivation hearing; (6) Count VI stating a substantive due process claim, alleging that Defendants City of Hazleton, Hazleton Police Department, Yannuzzi, and DeAndrea deprived Plaintiffs of their liberty interest protected under the Fourteenth Amendment; (7) Count VII alleging a 42 U.S.C. § 1985 claim of conspiracy to deprive Plaintiffs of their First and Fourteenth Amendment rights;¹ (8) Count VIII alleging a state law commercial disparagement claim against Defendants Yannuzzi and DeAndrea; and (9) Count IX alleging a state law defamation claim against Defendants Yannuzzi and DeAndrea.

Defendants have moved to dismiss all claims. (Docs. 10, 11). The motion has been fully briefed (Docs. 12, 13, 16) and is now ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such, "[t]he touchstone of the pleading standard is plausability." Bistrian v...