PITTSBURGH – A school bus transportation company that filed suit against the City of McKeesport, its school district and several officials alleging they conspired to remove it from an agreement to provide the District with busing as an act of political retaliation is now fighting back against a motion to dismiss the suit from federal court.
Pennsylvania Coach Lines, Inc. of McKeesport first filed suit in the Allegheny County Court of Common Pleas on Feb. 23 versus McKeesport Area School District, the City of McKeesport, Sen. James R. Brewster, McKeesport Mayor Michael Cherepko, McKeesport Area School District Board Member Dennis Joseph Lopretto and McKeesport City Administrator Thomas Maglicco, all of McKeesport, plus former McKeesport Area School District Superintendent Dr. Mark Holtzman, of Beaver.
“PA Coach provides school bus transportation for Pennsylvania school districts and their students. Prior to the COVID-19 pandemic, PA Coach served over 22 school districts in the Western Pennsylvania region, including MASD. Until recently, PA Coach provided school bus transportation for MASD for almost two decades, including, most recently, pursuant to a Transportation Agreement entered into by PA Coach and MASD dated Dec. 5, 2018. The aforesaid contract was a ‘bulk sale’ or ‘requirements’ contract whereby MASD received the benefit of an annual set price for all of its school bus needs and PA Coach received a set payment for its services such that the fewer busses it used, the more lucrative the contract was and, conversely, the more busses and drivers that were needed the less the profit margin (if any),” the suit said.
“There were few, if any, problems in the business relationship between PA Coach and MASD until 2020. In 2020, however, PA Coach President, David Sunstein, made public his support for then-candidate Nicole Ziccarelli for the upcoming election for the Pennsylvania State Senate seat encompassing the City of McKeesport. Ms. Ziccarelli’s opponent, State Senator Jim Brewster (who ultimately won the election by 69 votes), was and remains closely-allied politically with McKeesport Mayor Michael Cherepko and the majority of the MASD School Board, including former MASD Board President Dennis Joseph Lopretto, former MASD Board President Mindy Lundberg, who is Mr. Cherepko’s sister-in-law, and current MASD Board President LaToya Wright Brown.”
The suit added that in the days leading up to the November 2020 election, Sunstein was approached by then-president of the MASD School Board, Lopretto, who demanded that he stop supporting Ziccarelli and that he remove the political sign he had erected on his property in support of Ziccarelli as a political favor, because Sen. Brewster promised Lopretto that he would award his son with a job working for the Commonwealth of Pennsylvania in Allentown if Lopretto succeeded in having Sunstein’s signs removed.
“Among other threats and exhortations, Lopretto told Sunstein: ‘You know how much trouble [the City of McKeesport and MASD] can cause you if you don’t support [Sen. Brewster.]’ Approximately two weeks later, Lopretto returned to Sunstein’s garage, again demanding that PA Coach remove the sign supporting Ziccarelli and threatening that ‘there would be problems for Mr. Sunstein and PA Coach’ if the sign didn’t come down.’ In each of these visits, Lopretto was acting in his capacity as then-president of the MASD School Board. It is averred that the MASD School Board was controlled by Sen. Brewster through Lopretto, and others on the Board who were politically positioned on that Board by Sen. Brewster,” the suit stated.
“Sen. Brewster also accosted a PA Coach employee at his home, demanding that he remove his sign supporting Sen. Brewster’s opponent and threatening the employee that there would be consequences for Sunstein and PA Coach, if PA Coach and its employees did not support Sen. Brewster in the upcoming election. When Sunstein refused, as his political speech is protected as a matter of law and right under the United States Constitution, he was threatened that there would be consequences for him and his businesses, including PA Coach. Following the election, which Sen. Brewster ultimately won by 69 votes, MASD, at the behest of Sen. Brewster and Mayor Cherepko, embarked upon a calculated plan to retaliate against PA Coach and its president, Sunstein, for refusing to support Sen. Brewster politically.”
The suit claimed MASD over-reported – to a considerable degree – the number of students requiring transportation services in the district, in order to force PA Coach to make available far more buses and drivers than were actually necessary to transport the MASD students utilizing PA Coach’s transportation services.
The suit said MASD “manufactured a controversy so that it could haul PA Coach into court”, where it sought “multiple injunctions to force PA Coach to transport all of the reported students to school, despite the fact that 1) MASD knew that neither PA Coach nor any other student transportation provider had sufficient drivers to meet their demand; and 2) The number of students reported far exceeded the number of students who actually required transportation.”
“Ultimately, MASD achieved what was apparently its goal, and PA Coach was forced to suffer the termination of the Transportation Agreement after the end of the school year in the summer of 2022 and allowed MASD to contract with a new transportation provider for 2023 and beyond. Once MASD achieved this goal, and in the face of public pressure from parents and after further investigation, it admitted that it had been inflating its student transportation numbers. Once MASD provided PA Coach with the correct student transportation numbers, PA Coach was able to use nine fewer busses and transport all MASD students, with additional drivers available as substitutes,” the suit said.
“Had MASD given PA Coach the correct number of students before the school year started, PA Coach would have been able to transport all students without difficulty, and MASD would have had no basis to drag PA Coach into court and no basis to attempt to terminate the Transportation Agreement. Second, MASD abused the legal process of the Pennsylvania courts by suing PA Coach for the nationwide shortage of bus drivers, over which PA Coach had no control. MASD refused to take any steps to work with PA Coach or to make any accommodations to the nationwide crisis, including expanding the zone within which students were required to walk to school; adopting a ‘pod’ system of pickups that would utilize fewer buses; adjusting starting and dismissal times so fewer buses would be needed; or devoting additional financial resources to retain and/or recruit new bus drivers.”
Since replacing PA Coach with Krise Transportation in the summer of 2022, the suit alleged that MASD has been unable to provide transportation for all of its students, resulting in at least one federal lawsuit.
“Even so, MASD has not attempted to hold its new transportation provider responsible, in fact taking the position in multiple court filings that the nationwide bus driver shortage should excuse it from being required to transport its students – the exact argument made by PA Coach that MASD contested for the better part of two years. MASD, at the behest of defendants Senator Brewster, Mr. Cherepko, Mr. Lopretto, and the City of McKeesport, retaliated against PA Coach and its president, Sunstein, for engaging in protected political speech in violation of Pennsylvania state law,” the suit said.
Plaintiff counsel filed a praecipe on April 14 to discontinue the case from state court without prejudice.
“Plaintiff Pennsylvania Coach Lines, Inc., by and through its counsel, Whiteford Taylor & Preston, kindly request that the docket in the above-captioned action be marked as discontinued without prejudice and certify that I am authorized to do so,” the praecipe stated.
However, an identical action was then filed in the U.S. District Court for the Western District of Pennsylvania on April 13.
On July 6, the City of McKeesport, Cherepko and Maglicco motioned to dismiss the count of civil conspiracy, arguing that there was no substantiation for such a claim.
“The grounds for the motion are as follows: Plaintiff fails to allege sufficient facts to adequately plead a claim of civil conspiracy among the parties. Taken as a whole, the complaint alleges nothing more than the City of McKeesport, defendants Cherepko and Maglicco conspired with each other and the other defendants to retaliate against the Plaintiff by terminating a contract between MASD and the plaintiff. Other than naked-bare conclusory allegations, plaintiff states no factual basis that supports a claim against defendants City of McKeesport, Mayor Cherepko and Maglicco,” per the motion to dismiss.
“Plaintiff fails to sufficiently show a causal connection between the City of McKeesport defendants and plaintiff’s injuries, the termination of the contract. The City of McKeesport defendants are a separate legal entity from MASD and have no control, power or authority over MASD or its Board members or employees. It provides no funding nor does it have the authority to hire, terminate or appoint Board members or MASD employees. Plaintiff fails to show that any action taken by the McKeesport defendants coerced MASD or its Board members. Therefore, plaintiff failed to provide the appropriate nexus between the City of McKeesport defendants and the termination of the transportation contract.”
Thus, the instant defendants argued the complaint does not allege an underlying cause of action against them, because if they “are not liable in an underlying cause of action, they are not liable for a conspiracy.”
“Plaintiff fails to allege any facts supporting its claim against the City of McKeesport and fails to identify a policy or custom that caused the alleged Constitutional violation. Plaintiff’s attorney stated at a conference call that he would consider striking the City of McKeesport from the caption. Plaintiff’s claim is barred by the Political Subdivision Tort Claims Act,” the motion continued.
“Plaintiff fails to sufficiently plead facts regarding defendants Cherepko and Maglicco’s personal involvement in the retaliation claim. Plaintiff failed to show that defendants Cherepko and Maglicco acted affirmatively in the deprivation of plaintiff’s rights. Defendants Cherepko and Maglicco are entitled to qualified immunity because there is no clearly established law that would give a reasonable mayor and city administrator notice that they are liable for the termination of a contract by a third independent legal entity of which they have no control, authority or influence. On the contrary, the existing law in this jurisdiction is that they have no liability.”
The motion was also accompanied by similar-styled and separate dismissal motions from co-defendants Brewster, McKeesport Area School District, Lopretto and Holtzman.
UPDATE
The plaintiff replied to the dismissal motion(s) on Aug. 3, charging that the dismissal motion should be refuted.
“PA Coach’s retaliation claims are not asserted against Cherepko and Maglicco; rather, the only claim implicating Cherepko and Maglicco is the civil conspiracy claim. Accordingly, there is no legal requirement to “show a causal connection” between the City of McKeesport defendants and PA Coach’s injuries, as civil conspiracy is a form of vicarious, not direct, liability. Moreover, whether the City of McKeesport defendants have ‘control, power or authority over MASD or its Board members or employees’ is a factual allegation that appears outside of the four corners of the amended complaint, and thus cannot be considered for purposes of the City of McKeesport defendants’ motion,” per the reply.
“PA Coach’s alleged injury is traceable to MASD’s direct conduct, and by virtue of the conspiracy among MASD, Cherepko, Maglicco and others, that conduct is attributable to Cherepko and Maglicco as well. Accordingly, PA Coach has standing to bring its civil conspiracy claim against Cherepko and Maglicco. While the tort of civil conspiracy itself requires a predicate tort, there is no requirement under Pennsylvania law that all defendants to a civil conspiracy claim also be named in the underlying tort claim. Accordingly, Cherepko and Maglicco need not be charged with an underlying tort in order to be found liable for the tort of civil conspiracy. The orders of the Allegheny County Court of Common Pleas do not, and cannot, divest this Court of original jurisdiction. The City of McKeesport is not a defendant, and Cherepko and Maglicco are sued in their individual capacities. Accordingly, there is no legal reason Cherepko and Maglicco cannot conspire with one another.”
The defendants added that the City of McKeesport is no longer a defendant and can be stricken from the caption.
“Cherepko and Maglicco are named in their individual, not official capacities. Even if they were named in their official capacities, however, the claim brought against them would fall under the ‘willful misconduct’ exception found under Section 8550 of the Political Subdivision Tort Claims Act. There is no requirement that, in order to assert a claim for civil conspiracy, a plaintiff must allege a defendant’s personal involvement in the violation of his rights,” the reply continued.
“Cherepko and Maglicco are not entitled to qualified immunity because the doctrine of qualified immunity only protects ‘official action’ by government actors, not private actions undertaken by individuals in their capacities as private citizens.”
For counts of violating the First and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. Section 1983, fraud, abuse of process, defamation and civil conspiracy, the plaintiff is seeking damages in excess of $50,000, costs and expenses, attorneys’ fees pursuant to 42 U.S.C. Section 1988, along with such other relief as the Court deems just and proper.
The plaintiff is represented by Ray F. Middleman and Shane D. Valenzi of Whiteford Taylor & Preston, in Pittsburgh.
The defendants are represented by Joseph L. Luvara, Maria V. Carr and Paul A. Roman Jr. of Dickie McCamey & Chilcote, Shelly R. Pagac and Lourdes Sanchez Ridge of Pietragallo Gordon Alfano Bosick & Raspanti, and Fred C. Jug Jr. of Brandt Milnes & Rea, all also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00611
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com