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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DWAYNE SCICCHITANO, : Civ. No. 4:15-CV-00852

PAMELA BOLLINGER, ROBERT :

MCANDREW, DAVID :

YAKOBOSKI, BARRY :

SCHWEITZER, JAMES BRESSI, :

and ALBERT BENEDICT :

: (Judge Brann)

:

Plaintiffs, :

:

:

v. :

:

COUNTY OF :

NORTHUMBERLAND, VINNY :

CLAUSI, and STEPHEN BRIDY, :

:

Defendants. :

MEMORANDUM

September 17, 2015

Pending before this Court is a Motion to Dismiss Plaintiffs’ Amended 

Complaint filed by Defendants Stephen Bridy and Vinny Clausi for failure to state 

a claim upon which relief can be granted pursuant to Federal Rule of Civil 

Procedure 12(b)(6). Defendants argue that, as County Commissioners, they are 

entitled to legislative immunity on the actions at issue in the amended complaint

and, therefore, they must be dismissed from the action. Though Defendants have

not filed a reply brief, the time for filing has passed and the motion is now ripe for 

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disposition. In accordance with the following reasoning, Defendants’ motion to 

dismiss is denied.

I. BACKGROUND

Plaintiffs are currently employees of the Northumberland County 

Weatherization Department (hereinafter “Weatherization Department”). Pls.’ 

Amended Complaint ¶ 1-7, 13, May 8, 2015, ECF No. 4 (hereinafter “Pls.’ 

Complaint”). Defendants Stephen Bridy and Vinny Clausi are currently employed 

as the Northumberland County Commissioners. Id. ¶ 9-10. By virtue of their 

employment with Northumberland County, Plaintiffs are union members, a fact 

known to the Defendants. Id. ¶ 14. In fact, Plaintiffs’ allege, Defendant Clausi has 

openly expressed his antagonism towards union and his desire to privatize all or 

most of the County departments for the explicit purpose of eliminating unionized 

employees. Id. ¶ 15-16.

The Weatherization Department is a program meant to reduce energy 

consumption in low-income households. Id. ¶ 20. It is federally funded through 

the Department of Community and Economic Development (hereinafter “DCED”). 

Id. ¶ 17. The program therefore operates at no cost to the County, and, apparently, 

generates revenue for the County. Id. ¶ 18. Currently, Northumberland County 

has a contractual agreement with DCED to provide weatherization services 

through June 30, 2016. Id. ¶19.

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Applicants for weatherization services must be financially eligible for those 

services and, additionally, each home must meet certain conditions in order to 

qualify. Put another way, a person can only receive services if they are financially 

eligible and the conditions of the home and/or heating system are in such a state of 

disrepair that they qualify. Id. ¶ 21-22. 

After Defendant Clausi became a County Commissioner, it was not unusual 

for him to contact Plaintiffs Scicchitano and Bollinger and instruct them to provide 

services to a particular individual, even if they were not eligible for one reason or 

another. Id. ¶ 22, 24. One such instance occurred with Defendant Clausi’s father in 

law, Kenneth Zeek. Id. ¶ 25. Although Mr. Zeek was financially eligible for the 

program, his furnace did not meet the requirements for being in such a state of 

disrepair that it should be replaced. Id. ¶ 26. However, after Mr. Zeek was advised 

that he did not qualify for a new furnace, Plaintiff Scicchitano received a phone 

call from Defendant Clausi who instructed him to give Mr. Zeek a new boiler and 

threatened to shut down the Weatherization Department if he did not comply. Id. ¶ 

27. Fearful of losing their jobs, Plaintiffs complied. Id. ¶ 28.

In another instance, Defendant Clausi threatened several of the Plaintiffs 

with closure of the department if they did not provide his close friend, Vincenza 

Musso, with weatherization services, even though her ventilation system was not in 

such a state of disrepair that she qualified for the services. Id. ¶ 29, 30. Again, 

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fearful of losing their jobs, Plaintiffs provided Ms. Musso with first a new boiler 

and then a new radiator. Id. ¶ 31. 

Shortly thereafter, in September 2014, Plaintiff Scicchitano contacted Tony 

Kimmel, the Monitoring Supervisor of DCED, to make specific reports regarding 

Defendant Clausi’s threats and demands and the Zeek and Musso situations. Id. ¶ 

32. Mr. Kimmel instructed Plaintiff Scicchitano to get statements from several 

other weatherization employees, all of whom are Plaintiffs in the current action, 

and from a non-party private contractor, Jim Olcese. Id. ¶ 33. Shortly after 

Plaintiff Scicchitano requested a statement from Mr. Olcese, who Plaintiffs allege 

is friends with Defendant Clausi, Defendant Clausi’s wife appeared at the home of 

Plaintiff Bollinger. Id. ¶ 35. Mrs. Clausi questioned Plaintiff Bollinger regarding 

the reports made to Mr. Kimmel and called her husband, Defendant Clausi, placing 

him on speakerphone. Id. ¶ 36. While on the phone, Defendant Clausi questioned 

Plaintiff Bollinger about the reports and requested that she place a note in the Zeek 

file stating that he had requested that everything be “done by the book.” Id. ¶ 37. 

He further instructed her that no one could ever know that he talked to her about 

the situation or that Mrs. Clausi was at her home. Id. ¶ 37. The next day, Plaintiff 

Scicchitano was suspended with pay for a week based on the accusation that he 

was forcing Plaintiffs Bollinger and McAndrew to make false statements. Id. ¶ 38. 

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Then, in January 2015, Mr. Olcese told Plaintiffs Bollinger and McAndrew 

that the Weatherization Department was going to be shut down after May 2015, 

because it was the only way that they could get rid of Plaintiff Scicchitano, due to 

his union protection. Id. ¶ 39. In February 2015, Plaintiffs sent a written statement 

to Human Resources indicating that Defendant Clausi had threatened to shut down 

the department if it did not provide services to Ms. Musso, who did not qualify. Id. 

¶ 40. The letter further stated that Plaintiffs were fearful of losing their jobs or 

being charged with fraud for going against state and federal guidelines due to 

Defendant Clausi’s threats. Id. ¶ 41. 

During the Board of Commissioners meeting held on April 7, 2015, 

Defendants Clausi and Bridy voted to eliminate the Weatherization Department, 

effective June 30, 2015. Id. ¶ 42. The current lawsuit ensued, in which Plaintiffs 

requested injunctive relief to prevent the County from closing the Weatherization 

Department on June 30, 2015. On June 26, 2015, this Court granted Plaintiffs’ 

request for preliminary injunctive relief. Individual Defendants Clausi and Bridy 

now request this Court to dismiss Plaintiffs’ amended complaint inasmuch as it is 

asserted against them.

II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

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and construe all inferences in the light most favorable to plaintiff. See Hishon v. 

King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 

176, 183 (3d Cir. 1993). However, “the tenet that a court must accept as true all of 

the [factual] allegations contained in the complaint is inapplicable to legal 

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations 

omitted). In ruling on such a motion, the court primarily considers the allegations 

of the pleading, but is not required to consider legal conclusions alleged in the 

complaint. See Kost, 1 F.3d at 183. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 

556 U.S. at 678. At the motion to dismiss stage, the court considers whether 

plaintiff is entitled to offer evidence to support the allegations in the complaint. 

See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

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pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a 

‘short and plain statement of the claim showing that the pleader is entitled to relief,' 

in order to 'give the defendant fair notice of what the...claim is and the grounds on 

which it rests,'" Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)). However, even under this lower notice pleading standard, a plaintiff 

must do more than recite the elements of a cause of action, and then make a 

blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at 

*3. Instead, a plaintiff must make a factual showing of his entitlement to relief by 

alleging sufficient facts that, when taken as true, suggest the required elements of a 

particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged - - but it has not “shown” - - “that the pleader is entitled 

to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)). 

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490 

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where 

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the 

non-moving party can prove no set of facts in support of its allegations, then a 

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claim must be dismissed “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.” Id. at 327.

III. DISCUSSION

Defendants argue that they are entitled to absolute legislative immunity for 

their actions in terminating the Weatherization Department, because the vote they 

took was both substantively and procedurally legislative. Plaintiffs counter that 

Defendants’ actions were not procedurally legislative because they did not follow 

the correct procedure for enacting an ordinance, as required by the Pennsylvania

County Code. They further argue that Defendants’ actions were not substantively 

legislative because the Defendants engaged in a course of illegal and 

unconstitutional pre-vote harassment, threats, and retaliation for over a year which 

were aimed at Plaintiffs’ jobs; moreover, they ultimately structured their retaliatory 

act in such a way as they believed would grant them immunity. However, these 

legal issues are exceptionally fact-specific, and, as discussed below, the Court will 

reserve its decision on them pending a more developed factual record. 

Local legislators are absolutely immune from liability for their legislative 

activities. See In re Montgomery County, 215 F.3d 367, 376 (3d Cir. 2000) 

(quoting Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)). However, to be entitled 

to legislative immunity, the act taken must be both substantively and procedurally 

legislative in nature. See id. (citing Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 

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1983)). An act is considered substantively legislative if it involves policy-making 

of a general purpose or line-drawing. See Ryan v. Burlington County, 889 F.2d 

1286, 1290 (3d Cir. 1989). It is procedurally legislative if it is passed “by means 

of established legislative procedures.” Carver, 102 F.3d at 100. “This principle 

requires that constitutionally accepted procedures of enacting the legislation must 

be followed in order to assure that the act is a legitimate, reasoned decision 

representing the will of the people which the governing body has been chosen to 

serve.” Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 774 (3d Cir. 

2000). “Whether an act is legislative turns on the nature of the act, rather than on 

the motive or intent of the official performing it.” Bogan, 523 U.S. at 54.

At this stage in the litigation, Plaintiffs have pled that Defendants took a 

vote to eliminate the Weatherization Department during a County meeting. They 

have further alluded to some of the Defendants’ possible motives in doing so. 

Though Defendants argue that it is obvious on the face of the amended complaint 

that their actions are both procedurally and substantively legislative, this is far 

from clear to this Court. While this is entirely possible, a determination of the 

application of absolute legislative immunity is very fact-specific and highly 

dependent on the nature and circumstances of the action. Without the benefit of a 

more developed factual record, particularly in regard to whether the vote was 

procedurally legislative, the Court cannot conclusively grant or deny that 

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immunity. Consequently, Defendant’s motion to dismiss is denied, although 

Defendants are free to raise the issue of absolute legislative immunity at a later 

stage in the litigation.1

IV. CONCLUSION

In accordance with the foregoing reasoning, Defendants’ motion to dismiss 

is denied.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

1 The Court notes that it decided in its Memorandum Opinion of June 26, 2015 that Defendants had demonstrated a 

likelihood of success on the merits of their absolute legislative immunity defense. However, as counsel clearly 

appreciate, the Court did not conclusively decide the issue and, moreover, the posture of the current motion prevents 

the Court from considering any information outside of Plaintiffs’ amended complaint.

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