Joseph Pilchesky and Stephanie Tarapchak,IN THE COURT OF COMMON PLEAS

Plaintiffs OF LACKAWANNA COUNTY

v.Mandamus/Injunctive Relief

Lackawanna County, Commissioners Corey O’Brien,

James Wansacz and Patrick O’Malley, Warden Robert McMillan

of the Lackawanna County Prison, the Lackawanna County

Prison Board which members are, Corey O’Brien, James Wansacz,

Patrick O’Malley, Controller Gary DiBileo,

Judge Vito Geroulo, Sheriff Mark McAndrew and

District Attorney, Andrew Jarbola,

No. 14-CV-3208

Defendants

NOTICE TO DEFEND

YOU HAVE BEEN SUED IN COURT

If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice of any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you.

You should take this paper to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the office set forth below to find where you can get legal help.

North Penn Legal Services

200 Scranton Electric Bldg.

Scranton, PA 18503, 342-0184

______

Joseph Pilchesky, Plaintiff

819 Sunset St.

Scranton, PA 18509

570-591-4300

______

Stephanie Tarapchak, Plaintiff

819 Sunset St.

Scranton, PA 18509

570-880-7427

Joseph Pilchesky,IN THE COURT OF COMMON PLEAS

Plaintiff OF LACKAWANNA COUNTY

v.Mandamus/Injunctive Relief

Lackawanna County, Commissioners Corey O’Brien,

James Wansacz and Patrick O’Malley, Warden Robert McMillan

of the Lackawanna County Prison, the Lackawanna County

Prison Board which members are, Corey O’Brien, James Wansacz,

Patrick O’Malley, Controller Gary DiBileo,

Judge Vito Geroulo, Sheriff Mark McAndrew and

District Attorney, Andrew Jarbola,

No. 14-CV-3208

Defendants

THIRD AMENDED COMPLAINT IN MANDAMUS AND REQUEST FOR INJUNCTIVE RELIEF

NOW COMES, the Plaintiffs, Joseph Pilchesky and Stephanie Tarapchak, on this 12th day of September, 2014, with theirThird Amended Complaint in Mandamus and Request for Injunctive Relief, and in support thereof, submits as follows:

  1. The Plaintiff is Joseph Pilchesky, an adult resident and taxpayer of Lackawanna County residing in the Commonwealth of Pennsylvania, in the County of Lackawanna, in the City of Scranton at 819 Sunset St., 18509, and shall hereafter be referred to as Pilchesky.
  2. The Plaintiff is Stephanie Tarapchak, an adult residing in the Commonwealth of Pennsylvania, in the County of Lackawanna, in the City of Scranton at 819 Sunset St., 18509, a former inmate of the Lackawanna County prison from January 2, 2014 through May 2, 2014, and shall hereafter be referred to as Tarapchak.
  3. The Defendant is Lackawanna County; a body politic created under the laws of the Commonwealth with an Administrative Office located at 200 Adams Ave, Sixth Floor, Scranton, PA, 18503 and shall hereafter be referred to as the County.
  4. The Defendant is Corey O’Brien, a duly elected Commissioner of Lackawanna County, who also serves as a member of the Lackawanna County Prison Board, with an Administrative Office located at 200 Adams Ave, Sixth Floor, Scranton, PA, 18503 and shall hereafter be referred to as Commissioner O’Brien.
  5. The Defendant is James Wansacz, a duly elected Commissioner of Lackawanna County, who also serves as a member of the Lackawanna County Prison Board, with an Administrative Office located at 200 Adams Ave, Sixth Floor, Scranton, PA, 18503 and shall hereafter be referred to as Commissioner Wansacz.
  6. The Defendant is Patrick O’Malley, a duly elected Commissioner of Lackawanna County, who also serves as a member of the Lackawanna County Prison Board, with an Administrative Office located at 200 Adams Ave, Sixth Floor, Scranton, PA, 18503 and shall hereafter be referred to as Commissioner O’Malley
  7. The Defendant is Warden Robert McMillan; the Warden of the Lackawanna County Prison, with an Administrative Office located at 1371 N. Washington Ave., Scranton, PA, 18509 and shall hereafter be referred to as Warden McMillan.
  8. The Defendant is the Lackawanna County Prison Board; a body politic created under the laws of the Commonwealth with an office located at 200 Adams Ave., Sixth Floor, Scranton, PA, 18503 and shall hereafter be referred to as the Board, which other members are:
  1. The Honorable Judge Vito Geroulo, a duly elected judge of the Court of Common Pleas of Lackawanna County, who is also a member of the Lackawanna County Prison Board, which has an address of 200 Adams Ave., Scranton, PA 18503, and shall hereafter be referred to as Judge Geroulo.
  2. Andrew Jarbola, the duly elected District Attorney of Lackawanna County, who is also a member of the Lackawanna County Prison Board, which has an address of 614 Spruce St., Scranton, PA 18503, and shall hereafter be referred to as Jarbola.
  3. Mark McAndrew, the duly elected Sheriff of Lackawanna County, with an office located at 200 N. Washington Ave., Scranton, PA 18503, who is also a member of the Lackawanna County Prison Board, which has an address of 200 Adams Ave., Scranton, PA 18503, and shall hereafter be referred to as McAndrew.
  4. Gary DiBileo, the duly elected Controller of Lackawanna County, who is also a member of the Lackawanna County Prison Board, which has an address of 200 Adams Ave., Scranton, PA 18503, and shall hereafter be referred to as DiBileo.
  5. When referred to collectively, all Defendants named above will be referred to as the Defendants.

Standing and Service

  1. The Defendants have preliminarily objected to the original Complaint, the Amended Complaint and the Second Amended Complaint objecting that Plaintiff Pilchesky does not have the capacity to sue and that service of original process was improper.
  2. In Application of Biester, 409 A.2d 848, 851-51 (Pa. 1979), the Supreme Court provided a relaxed exception to the requirements of standing, which was visited in 2005 in the matter of PITTSBURGH PALISADES PARK, LLC and Charles J. Betters, v. Com.888 A.2d 655.
  3. The Palisades Park court wrote as follows: “While Biestercurtailed the concept of standing based solely upon taxpayer status, it also recognized that one who was not "aggrieved" so as to satisfy standing requirements might nevertheless be granted standing as a taxpayer if certain preconditions were met.”
  4. The Palisades Park court further wrote: “This exception's relaxation of the general rules regarding standing and their requirement of a substantial, direct, and immediate interest in the challenge, is policy driven. This policy, as expressed in Biester, revolves around the concept of giving standing to enable the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement. "Such litigation allows the courts, within the framework of traditional notions of `standing,' to add to the controls over public officials inherent in the elective process the judicial scrutiny of the statutory and constitutional validity of their acts. Consistent with this policy, five requirements have subsequently emerged as the preconditions necessary to satisfy the Biester exception for taxpayer standing:

(1) the governmental action would otherwise go unchallenged;

(2) those directly and immediately affected by the complained of matter are beneficially affected and not inclined to challenge the action;

(3) judicial relief is appropriate;

(4) redress through other channels is unavailable; and

(5) no other persons are better situated to assert the claim.”

  1. As to (1) above in ¶ 15, the governmental action would otherwise go unchallenged if not challenged by the Plaintiff.
  2. As to (2) above in ¶ 15, the people directly and immediately affected are the Defendants, all of whom are paid public servants, not likely to challenge the ongoing abuses and negligence at the prison or they would have.
  3. As to (3) above in ¶ 15, judicial relief is the only relief available. The Defendants were asked to provide the relief requested and remained silent.
  4. As to (4) above in ¶ 15, there is no redress available through any other channel.
  5. As to (5) above in ¶ 15, there are better persons suited to asset the claim, those being the Lackawanna County District Attorney and the Attorney General of Pennsylvania, but both have declined to prosecute this matter.
  6. Where both the Lackawanna County District Attorney and the Attorney General of Pennsylvania decline to prosecute a matter, standing is conferred upon the citizen.
  7. Regarding service of original process, according to the Rules of Civil Procedure at 400 (b) (1), a competent adult may serve a Complaint that includes a request for injunctive relief, which this Complaints includes.
  8. The competent adult who served this Complaint was Constable William McAndrew, who filed a Return of Service with a supporting affidavit.

FACTS

  1. Paragraphs (1) through (20) are incorporated by reference as if set forth in full.
  2. Lackawanna County has a prison located at 1371 N. Washington Ave., which has been under the statutory authority and administrative control of the Lackawanna County Commissioners and the Lackawanna County Prison Board for more than twenty-five (25) years.
  3. The prison has a full-time Warden, Deputy Warden, administrative staff and a population of unionized guards, all of whom are collectively directly responsible for all inmate services, treatment and safety.
  4. The prison has an annual budget of approximately twenty-two million ($22,000,000.00) dollars per year provided by Lackawanna County taxpayers.
  5. The typical inmate population of the prison on any given day, to include males and females, is approximately one-thousand (1000) inmates, however, in terms of a yearly population the prison houses and cares for approximately fifty-five hundred (5,500) inmates on a revolving door basis, which includes the temporary housing of state and federal prisoners.
  6. The prison has received a 100% compliance certificate from the Department of Corrections over the last few years, notwithstanding static and ever-rising incidents of negligent, incompetent and reckless administration and abuse to inmates, some of which was reported in the media.
  7. The ministerial duties of the three county commissioners; Patrick O’Malley, James Wansacz and Corey O’Brien, are found in the Administrative Code of Lackawanna County (Code), Title 335 § 13.302 (a) through (u), relating to the administration and supervision of all County Departments, Authorities, Boards and subordinate employees.
  8. The Lackawanna County Prison Board (Board), which is made up of seven (7) public officials, includes the three County Commissioners, the District Attorney, the County Controller, the Sheriff, and one Lackawanna County judge, each of whom are identified above.
  9. The Board was established under the Code at Article III, A (5), relating to Prison Board, and Pa. Chapter 17, Title 61, Subchapter C, relating to Board of Inspectors, § 1731 (a), (1) and (2), relating to Establishment, with duties imposed at § 1731 (a) (3).
  10. Pursuant to Pa. Chapter 17, Title 61, Subchapter C, §1731 (a) (3), duties of the Board are as follows: “The Board and the officers appointed by it shall provide for the safekeeping, discipline and employment of inmates and the government and management of the correctional institution.” [Emphasis added]
  11. The Board has the ministerial duty of directly overseeing management and administration of the Lackawanna County Prison, which includes authorizing administrative appointments, spending on various service vendors, maintenance, upgrades and repairs, ensuring the care and treatment of all inmates, training for administrative and unionized employees, and ensuring the prison’s compliance with all applicable laws, codes and policies and discipline.
  12. Warden McMillan is an appointed public official with an office located within the prison, having ministerial duties relating to direct supervision over all administrative staff and unionized employees within the prison, professional relations with all vendors, quality of living conditions, and care and treatment of all inmates.
  13. The Defendants owed a ministerial duty to the public and all inmates to provide humane and safe living conditions, humane and safe treatment in terms of mental, emotional, physical and medical care, close and adequate training and supervision of prison staff to ensure humane and safe treatment, financial responsibility, and providing all statutory and constitutional rights afforded to all inmates under the color of law, to include certain penumbral rights, i.e., a right to privacy.
  14. The Board made decisions out of discretion, rather than made decisions rising from their statutory duty to ensure that the prison was at all times safe, that all inmates were treated humanely, that all living conditions were acceptable by human standards, that all medical treatment was proper, and that all constitutional and due process rights were observed.
  15. The Lackawanna County Prison has a Mission Statement cited on its Website as follows:
  1. For the incarceration of person(s) adjudicated as offenders or suspected of being offenders of the law;
  2. The intent of such incarceration is to; protect society by providing incarceration as an appropriate deterrent to the commission of crime; insure that person(s) on a pre-trial status appear in court; provide a safe and secure environment for offender and staff; offer programs for positive personal growth and positive reintegration into the community upon their release; insure the basic physical and medical health needs are attended to; protect the basic constitutional rights of the offender(s).
  1. In an article written by Scranton Times columnist, Chris Kelly, published on January 26, 2014, appropriately entitled, “A prison in need of corrections”, he listed the following events in support of his proposition that the prison system is dysfunctional:
  1. Numerous prisoner suicides and suspicious deaths. An inmate was found dead in his cell this week. An autopsy was inconclusive pending test results;
  2. Inmates caught having sex with other inmates;
  3. Inmates caught having sex with guards;
  4. Guards caught having sex with guards;
  5. Guards beating inmates, inmates beating guards and guards beating guards.
  6. Inmates dying for lack of medical treatment;
  7. A baby born in a prison cell after four hours of labor less than two miles from three hospitals;
  8. A state Department of Corrections intervention and the federal government pulling detainees out over concerns for their safety; and
  9. The near-fatal beating of an inmate who was supposed to be isolated by a convicted murderer who later escaped in broad daylight and assaulted a random citizen. The monster wasn't missed until a neighbor of the prison called 911.

Notice to Defendants of Deplorable Conditions and Abuses to Inmates

  1. On April 5, 2015,based upon Tarapchak’s personal experiences, observations, information and knowledge while an inmate at the Lackawanna County Prison in Bravo and Foxtrot Blocks, Plaintiff Pilchesky sent the Defendants a letter (Letter) that further informed them of various and specific deplorable conditions that have long-existed at the prison, and continue to exist, and also informed them of various and specific abuses to inmates, most of which were imposed upon inmates on a daily basis. The Letter demanded that the Defendants resolve and/or eliminate the deplorable conditions and abuses to inmates within fifteen (15) days and notify the Plaintiff of the same. See Exhibit “A”, the Letter, incorporated herein by reference to the original Complaint.
  2. The Letter included the following citations of deplorable conditions and abuse to inmates, along with a demand for relief after each citation:
  1. During the extremely cold months, the heat in the prison is insufficient to keep inmates warm, particularly at the lower levels. Inmates do not get enough blankets to cope with the cold conditions. Additional blankets cannot be purchased at the Commissary. Female inmates are observed during visitation having light blue skin-colored hands due the cold temperature in the prison. Inmates repeatedly complaint about the cold conditions, but to no avail. Warden McMillan has done nothing to cure the problem. Inmates gather plastic containers before bedtime, such as shampoo and water bottles, and fill them with hot water before going into their cell to keep themselves as warm as possible for a short period of time. Sometimes the water is scalding hot, so they get burns from the hot water containers. Some inmates have to spend half the day showering to keep warm. When cells come open on the upper floors where it’s warmer, the cells are left empty instead of moving inmates who are freezing in the lower level to an upper and warmer level cell. Demand: Fire Warden McMillan. He knew that the freezing conditions existed all winter long and refused to do anything to assist the abused inmates living in freezing cells 24/7, which is a cruel and harsh punishment, which results in severe sleep deprivation, an actionable cause of action, which is cruel and harsh punishment that imports depression, severe anxiety, hostility, anger, frustration and disgust. Warden McMillan ignored daily written complaints from inmates about the freezing temperatures in many of the cells, sleep deprivation and its serious negative impact on the human mind and body. Place a thermostat where inmates can see them.
  2. Male guards enter the female blocks unannounced every day. They walk through the female blocks looking into cells catching many inmates in various stages of being undressed, walk though the shower area, shine a flashlight into the cells for long periods of time at night and make sexual comments to inmates about other inmates.