SEITZ et al v. EAST NOTTINGHAM TOWNSHIP et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 5/24/17. 5/24/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN R. SEITZ, III, and
HICKORY HILL GROUP, LLC,
EAST NOTTINGHAM TOWNSHIP et al.,
May 24, 2017
This case arises out of a dispute between a Chester County business owner and local
government officials. Plaintiffs John R. Seitz, III, and Hickory Hill Group, LLC, allege that
Defendants East Nottingham Township and various officers thereof deprived them of numerous
constitutional rights by illegally seizing their private driveway and converting it into a public rightof-way, arbitrarily enforcing land-use and signage ordinances, and attempting to have Seitz arrested
on false charges. Upon consideration of Defendants’ Motions to Dismiss, I conclude that the only
surviving claim is one for deprivation of substantive due process based on Defendants’ alleged
appropriation of Plaintiffs’ driveway.
In February 2014, HHG 1 purchased a property located at 1041 Hickory Hill Road, East
Nottingham Township, Chester County, Pennsylvania. The Amended Complaint does not include
an extensive description of the property, but this much is clear: 1041 Hickory Hill Road is a
HHG is a Delaware LLC; Seitz is its managing principal.
triangular parcel bounded by two public thoroughfares, Hickory Hill and Oxford Roads, and by the
disputed roadway that is the focal point of this case. Viewed on a map, the disputed roadway
would, if open to traffic, constitute a continuation of Fulton Road, an existing public right-of-way.
Plaintiffs contend that the roadway in dispute is a private driveway. They note that
historical Township maps and surveys do not list the roadway as a public street and that the
Township refused a request from Joseph Coates, the previous owner of the property, to maintain it
as such. Plaintiffs further maintain that Coates blocked the northern entrance to the roadway when
requested to do so by State Police in 2005 and that the roadway remained inaccessible to the public
until 2014. According to Plaintiffs, when they acquired 1041 Hickory Hill Road in early 2014,
they understood the roadway to be their private property, posted signs to that effect, maintained
Coates’s barrier, and used the area as a loading zone and storage area. 2
Defendants—East Nottingham Township, the Township Board of Supervisors, and eight
individually named Township officials—apparently had a different view. According to Plaintiffs,
in July 2014, the Board of Supervisors met and, without first providing notice, voted to evict
Plaintiffs from the roadway. In September, the Supervisors (again purportedly without notice to
Plaintiffs) authorized spending for survey and engineering work necessary to convert the roadway
into a county road. Plaintiffs claim that the survey was overseen by Defendant Winifred Moran
Sebastian, Esq., the Township Solicitor, who authorized the use of “fabricate[d]” data and
“unconventional methods” to portray the roadway as an extension of nearby Fulton Road. Am.
Compl. ¶¶ 69–70. Plaintiffs further maintain that, in October 2014, Sebastian ordered Defendant
William Weaver, the Township Road Master, to remove Plaintiffs’ barricades and private property
signs and occupy the roadway. With the roadway under township control, Weaver and Defendant
Mark Deimler, the Township Engineer and Building Code Official, allegedly removed what had
The 227-paragraph Amended Complaint does not disclose the nature of HHG’s business activities on the property.
been a functioning drainage system and replaced it with a “negligent[ly]” designed “seepage pit/dry
well,” resulting in significant flood damage to the structures at 1041 Hickory Hill Road. ¶ 113.
Plaintiffs cite the Township’s appropriation of their private driveway as the most glaring
example of what they broadly characterize as a coordinated effort to “trample upon their
constitutional rights.” ¶ 137. In support of this theory, Plaintiffs allege that Defendant Pamela
Scheese, the Township Zoning Officer, denied their building permit request and twice denied their
application to post public signs, each time for “arbitrary and capricious reasons.” ¶¶ 122, 134. In a
similar vein, Plaintiffs maintain that Scheese and Deimler sent them notifications of non-existent
zoning and building code violations. ¶¶ 147–53. Finally, Plaintiffs contend that Defendants
Patricia Brady, Township Secretary, and Scott Blum, a former Township Supervisor, conspired with
unnamed “cronies” in an attempt to have Seitz falsely arrested because he supported a rival
candidate for an open seat on the Board of Supervisors. ¶¶ 161–64.
Before me now are two Motions to Dismiss pursuant to Rule 12(b)(6), one on behalf of
Defendant Sebastian and one on behalf of the other nine Defendants.
A complaint is properly dismissed under Rule 12(b)(6) when it fails “to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a 12(b)(6) motion, the court
must first separate the factual and legal elements of a claim, accepting as true all well-pleaded facts
while disregarding any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). The court must then “determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a ‘plausible claim for relief.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)).
Plaintiffs seek relief under 42 U.S.C. § 1983. To prevail, they must show that Defendants
“acted under the color of state law and denied [them] a federally protected constitutional or
statutory right.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). Plaintiffs
bring claims under a variety of constitutional theories: (1) due process and Seventh Amendment
right-to-jury-trial claims related to the property at 1041 Hickory Hill Road; (2) a facial First
Amendment challenge to the Township’s signage ordinance; and (3) First Amendment and due
process claims related to the alleged conspiracy to have Seitz arrested on false charges. I consider
each group of claims in turn.
A. Due Process and Seventh Amendment Claims Related to the Property at 1041 Hickory
Plaintiffs allege that Defendants’ interference with their property interests in 1041 Hickory
Hill Road deprived them of their Fourteenth Amendment rights to substantive and procedural due
process, and their Seventh Amendment right to civil trial by jury. Specifically, Plaintiffs claim that
Defendants abridged these rights by: (1) “negligent[ly]” designing and installing a drainage system
that resulted in flooding of, and structural damage to, Plaintiffs’ real property; (2) denying
Plaintiffs’ request for building and sign permits and notifying Plaintiffs of zoning and building code
violations; and (3) appropriating Plaintiffs’ private driveway. Defendants raise three threshold
objections. First, they argue that Plaintiffs lack Article III standing to bring claims based on these
actions. Next, Defendant Sebastian claims that Plaintiffs have failed to state a claim against her
because she did not act under color of state law within the meaning of § 1983. And finally,
Defendants contend that Plaintiffs’ claims are unripe.
The three requirements of Article III standing are (1) “an injury in fact” that is “concrete and
particularized,” (2) a “causal connection between the injury and the conduct complained of,” and
(3) a likelihood “that the injury will be redressed by a favorable decision.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). Defendants seize on language in Lujan, which describes an
injury in fact as an “invasion of a legally protected interest.” Id. at 560. Armed only with this
ambiguous phrase, 3 they attack Plaintiffs’ standing to bring claims related to 1041 Hickory Hill
Road, arguing that Plaintiffs do not own that property and therefore have no “legally protected
property interest,” the “invasion” of which would give rise to an injury in fact.
Defendants make a credible case that Plaintiffs lack valid legal title to 1041 Hickory Hill
Road, but that argument goes to the merits, not to standing, and in any case is premature. 4 “In the
context of a motion to dismiss . . . the injury-in-fact element is not Mount Everest. The contours of
the injury-in-fact requirement, while not precisely defined, are very generous, requiring only that
claimant allege some specific, identifiable trifle of injury.” In re Horizon Healthcare Servs. Inc.
Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017). Plaintiffs clearly carry that minimal burden
by alleging that Defendants’ appropriation of their driveway and denial of permits hindered their
business activities and damaged their real property. These direct and immediate economic losses fit
squarely within the recognized injury-in-fact categories and easily satisfy the first requirement of
Article III standing. See Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 293 (3d Cir. 2005)
(“Monetary harm is a classic form of injury-in-fact . . . . Indeed, it is often assumed without
discussion.”). So Defendants’ standing argument fails.
See Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363 (D.C. Cir. 2005) (Williams, J., concurring) (expressing
“puzzlement” at the Lujan Court’s description of injury in fact as “an invasion of a legally protected interest” and
discussing possible interpretations of that phrase).
Plaintiffs claim that their interest in 1041 Hickory Hill Road arose when that property was transferred by deed to HHG
on February 19, 2014. Defendants point out that the records of the Delaware Secretary of State indicate that HHG was
not in existence on the date of the alleged transfer and was not actually formed until September 13, 2016. Under
Pennsylvania law a conveyance of real estate to a nonexistent entity has no legal effect, Lester Assocs. v.
Commonwealth, 816 A.2d 394, 398–99 (Pa. Commw. Ct. 2003). Defendants therefore contend that Plaintiffs lack legal
title to the subject property and thus have no property interest deserving of constitutional protection. Whatever weight
this argument might ultimately have, at the motion to dismiss stage all factual allegations in the Amended Complaint
must be taken as true. I therefore accept Plaintiffs’ contention that they had a cognizable property interest in 1041
Hickory Hill Road; Defendants remain free to reassert their challenge at summary judgement.
Next, Defendant Sebastian, the Township Solicitor, argues that Plaintiffs have failed to state
a § 1983 claim against her because she did not act under color of state law. A party acts under color
of law when (1) she “exercise[s] . . . some right or privilege created by the State or by a rule of
conduct imposed by the state or by a person for whom the State is responsible,” and (2) she “may
fairly be said to be [a] state actor.” Angelico, 184 F.3d at 277. Sebastian maintains that as a private
attorney representing a municipal client, she was not a state actor within the meaning of § 1983.
Generally, a state actor is one who “is a state official, . . . has acted together with or has obtained
significant aid from state officials,” or engages in conduct that is, “by its nature, chargeable to the
state.” Id. As Sebastian notes, courts in this Circuit have refused to label as “state actors” township
solicitors who “render advice, draft correspondence . . . as to legal disputes, or otherwise
engage in litigation and equivalent legal activities” on behalf of their government clients.
Belkowski v. Kruczek, No. 209-CV-1549, 2010 WL 1433099, at *3 (W.D. Pa. Apr. 7, 2010). But
courts have also found that these attorneys may become state actors when taking actions outside the
scope of a traditional attorney-client relationship. See id. Such is the case here.
The Amended Complaint alleges that Sebastian deprived Plaintiffs of their rights to due
process by supervising the creation of a survey to support the Township’s claim of ownership over
the disputed roadway, and by “personally direct[ing]” a Township employee to enter and seize
Seitz’s driveway. ¶¶ 67–75. Accepting these allegations as true, the complaint shows that
Sebastian acted well outside the bounds of a traditional attorney-client relationship, adopting
responsibilities akin to those of a city manager or engineer. I therefore find that she engaged in
conduct that is, “by its nature, chargeable to the state,” rendering her a state actor for purposes of
Plaintiffs’ § 1983 action.
In their final threshold challenge, Defendants urge that I dismiss on ripeness grounds
Plaintiffs’ due process claims based on the denial of signage and building permits, the application of
zoning and building code ordinances, the appropriation of a private driveway, and the negligently
designed drainage system. “The ripeness doctrine serves to determine whether a party has brought
an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to
satisfy the constitutional and prudential requirements of the doctrine.” Khodara Envtl., Inc. v.
Blakey, 376 F.3d 187, 196 (3d Cir. 2004). Because a ripeness challenge “concerns the justiciability
of a claim,” district courts “ordinarily” should “resolve [it] on a motion to dismiss rather than on a
motion for summary judgment.” Sameric Corp. of Del. v. City of Philadelphia, 142 F.3d 582, 598
(3d Cir. 1998).
Of central relevance to the ripeness inquiry here is the Supreme Court’s decision in
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S.
172 (1985). There, the Court established a two-prong test for determining the ripeness of regulatory
takings claims arising out of land-use disputes. Under the first prong of Williamson County, courts
consider whether, before filing a takings claim, the aggrieved property owner appealed the
government’s adverse application of land-use regulations; if not, the government action at issue is
not considered final and therefore is not ripe for challenge in federal court. The test’s second prong
imposes what amounts to an exhaustion requirement: before bringing a takings claim, the aggrieved
property owner must first attempt to secure post-taking compensation through an inverse
condemnation suit. 5
An inverse condemnation action is a suit “brought by a property owner for compensation from a governmental entity
that has taken the owner's property without bringing formal condemnation proceedings.” Condemnation, Black’s Law
Dictionary (10th ed. 2014).
In Taylor Investment, Ltd. v. Upper Darby Township, the Third Circuit extended Williamson
County’s first prong beyond the regulatory takings context, holding that it “applies regardless of the
theory on which plaintiffs attack a land-use decision—even where the attack is premised on
substantive due process [or] procedural due process.” 983 F.2d 1285, 1292 (3d Cir. 1993). Since
Taylor Investment, our Court of Appeals has “consistently applied this finality rule” to dismiss due
process claims based on adverse interpretations of land-use regulations where, as in Williamson
County, the government decisions at issue had not first been appealed. Lauderbaugh v. Hopewell
Township, 319 F.3d 568, 574 (3d Cir. 2003). In doing so, the Third Circuit has repeatedly noted its
“reluctance to allow the courts to become super land-use boards of appeals” and has stressed that
local authorities are “better position[ed] . . . to assess the burdens and benefits of th[e] varying
interests” in land-use disputes. Sameric, 142 F.3d at 598.
Williamson County and Taylor Investments doom many of Plaintiffs’ procedural and
substantive due process claims. Under Pennsylvania’s Uniform Construction Code, Plaintiffs were
entitled to—but did not—challenge the denial of building permits and notification of building code
violations. 34 Pa. Code § 403.122. Similarly, Plaintiffs did not appeal the denial of sign permits or
notifications of zoning non-compliance, despite their right to bring these matters before the
Township Zoning Board, a body vested with “exclusive jurisdiction to hear and render final
adjudications” in challenges to determinations of a zoning officer. 53 Pa. Stat. and Cons. Stat. Ann.
§ 10909.1. Because Plaintiffs failed to challenge Defendants’ adverse zoning, permitting, and
building code decisions, those decisions are not considered final. 6 Due process claims based on
those decisions are therefore unripe.
Plaintiffs’ contention that the denial of permitting applications and the notifications of zoning and building code
noncompliance were arbitrary and capricious is immaterial. Plaintiffs’ due process claims are based on Defendants’
application of land-use laws and “the grant of a permit [or variance] would . . . reduce [Plaintiffs’] damages.”
Sameric, 142 F.3d at 598; see also E & R Enter. LLC v. City of Rehoboth Beach, 650 F. App’x 811, 815 (3d Cir. 2016).
The ripeness analysis differs for the due process claims that are based on Defendants’
appropriation of Plaintiffs’ driveway, and on the flood damage resulting from Defendants’
negligently designed drainage system. Unlike the zoning and building code determinations
discussed above, Defendants’ damage to, and seizure of, Plaintiffs’ private property are final
government actions. See Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 513 (2d Cir. 2014) (“[A]
physical taking in itself satisfies the need to show finality.”). Defendants nonetheless argue that the
due process claims related to the driveway and drainage system should be dismissed as unripe under
the second prong of the Williamson County ripeness test, which requires that parties first pursue an
inverse condemnation suit before bringing takings claims in federal court.
Defendants’ proposed application of Williamson County is contrary to the Third Circuit’s
decision in County Concrete Corp. v. Town of Roxbury, 442 F.3d 159 (3d Cir. 2006), where the
court held that inverse condemnation actions have no bearing on the ripeness of substantive due
process claims. 7 County Concrete concerned a facial challenge to a local zoning ordinance that was
couched as both a takings claim and a substantive due process claim. Id. at 163. In analyzing
ripeness, the court applied Williamson County’s second prong to bar the takings claim, while
permitting the factually analogous substantive due process claim to proceed. Id. at 167–69. In so
doing, the court stressed the “unique aspect” of takings claims:
Because the Fifth Amendment bars not just the “taking” of property, but the taking
of property “without just compensation,” a plaintiff cannot claim a violation of the
Just Compensation Clause until he or she has exhausted a state’s procedure for
Under these circumstances, Plaintiffs’ due process claims are unripe, notwithstanding Defendants’ alleged lack of good
The Third Circuit’s approach stands in contrast to that of the Second, Seventh, and Tenth Circuits. See Kurtz, 758
F.3d at 516 (applying Williamson County’s exhaustion requirement to due process claims “to prevent evasion of the
ripeness test by artful pleading of a takings claim as a due process claim”); Greenfield Mills, Inc. v. Macklin, 361 F.3d
934, 961 (7th Cir. 2004) (“The Williamson County exhaustion requirement applies with full force to due process claims
(both procedural and substantive) when based on the same facts as a takings claim.”); Rocky Mountain Materials &
Asphalt, Inc. v. Bd. of Cty. Comm’rs, 972 F.2d 309, 311 (10th Cir. 1992) (same).
seeking just compensation. Only then can a Takings claimant allege that he or she
has actually been denied just compensation, and, thus, only then is his or her Takings
Id. at 168. In contrast to a takings claim, the court observed that “[t]he absence of ‘just
compensation’ is not part of a due process . . . injury.” Id. at 168–69. Because the second prong of
Williamson County “only exists due to the special nature of the Just Compensation Clause,” the
court held that it was inapplicable to the plaintiff’s substantive due process claim. Id. at 169. Thus,
under County Concrete, where a property owner alleges a due process violation arising out of
seizure or damage to property, an inverse condemnation action is not a prerequisite for asserting the
constitutional claim. 8 Defendants’ ripeness challenge to due process claims arising out of physical
damage to, and seizure of, Plaintiffs’ property must therefore be rejected.
Proceeding to the merits, I find that Plaintiffs’ procedural and substantive due process
claims based on the “negligent[ly]” designed drainage system fail because “the Due Process Clause
is simply not implicated by a negligent act of an official causing unintended loss of or injury to life,
liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). Plaintiffs’ Seventh
Amendment claim, based on denial of trial by jury, is similarly meritless because the Supreme
Court has never held that the Fourteenth Amendment incorporates the right to a civil jury trial.
McDonald v. City of Chicago, 561 U.S. 742, 765 n.13 (2010).
Plaintiff’s procedural and substantive due process claims based on the appropriation of the
driveway require closer consideration. Focusing first on procedural due process, the Supreme Court
“usually has held that the Constitution requires some kind of a hearing before the State deprives a
Defendants cite Miles v. Township of Barnegat, 343 F. App’x 841, 844 (3d Cir. 2009), without discussion. Putting to
one side that opinion’s lack of precedential value, the district court decision on appeal in Miles treated the complaint as
alleging only takings and procedural due process claims. Even if I were to consider Miles, it would shed no light on the
issue presented here.
person of liberty or property.” Zinermon, 494 U.S. at 127. Here, Plaintiffs claim that their
procedural due process rights were abridged when Defendants failed to provide them with notice
and an opportunity to be heard before converting their private driveway into a county road.
Whether this creates a cognizable constitutional claim depends in turn on whether Defendants were
authorized to effect the alleged denial of pre-deprivation procedural safeguards.
In Logan v. Zimmerman Brush Co., the Supreme Court found that a triable procedural due
process claim existed where pre-deprivation notice and hearing were denied pursuant to an
“established state procedure.” 455 U.S. 420, 436 (1982). By contrast, the Court recognized in
Hudson v. Palmer that “[w]here a loss of property is occasioned by a random, unauthorized act by a
state employee, rather than by an established state procedure, the state cannot predict when the loss
will occur,” and any pre-deprivation protections will therefore be “impracticable.” 468 U.S. 517,
532 (1984). Under those circumstances, the Hudson Court held that a statutory provision for a postdeprivation hearing, or a common-law tort remedy for erroneous deprivation, satisfies due process.
Plaintiffs argue that Logan, not Hudson, controls in this case. I disagree. According to
Plaintiffs, Defendants seized their driveway pursuant to Pennsylvania’s Eminent Domain Code, 26
Pa. Stat. and Cons. Stat. Ann. §§ 301 et seq., which allows the government to commandeer private
land for public purposes. The Eminent Domain Code mandates pre-deprivation notice, hearings,
and compensation, while also allowing aggrieved property owners to pursue post-deprivation
The rule announced in Hudson, a refinement and extension of the Court’s holding in Parratt v. Taylor, 451 U.S. 527
(1981), is commonly referred to as the Parratt-Hudson doctrine. In Zinermon v. Burch, the Supreme Court recognized
an exception to the Parratt-Hudson doctrine, finding it inapplicable where a state actor wrongfully withheld due process
safeguards, but did so while acting under “uncircumscribed power to effect the deprivation at issue.” 494 U.S. at 136.
In that scenario, the Court reasoned that the complained-of deprivation was neither unpredictable nor unauthorized.
Neither party makes an argument concerning Zinermon’s application to Pennsylvania’s Eminent Domain Code, but my
review of that statute satisfies me that it does not grant state officials the sort of unfettered discretion that would require
a departure from the Parratt-Hudson doctrine.
compensation through an inverse condemnation suit. With little elaboration, Plaintiffs claim that,
under Logan, the code’s inverse condemnation provisions are “established state procedure[s]” that
effect the denial of pre-deprivation due process rights.
Plaintiffs’ superficial invocation of Logan is unpersuasive. That case concerned the Illinois
Fair Employment Practices Act (FEPA), which allowed individuals to bring discrimination claims
by filing a complaint with the state’s Fair Employment Practices Commission. Under FEPA, once a
complaint was filed, the commission had 120 days to convene a “fact-finding conference”; only
after this conference was the matter referred to a commissioner for an adversarial hearing. 455 U.S.
at 424. After he was fired, Logan properly filed a FEPA complaint, but, for reasons beyond his
control, the Commission failed to hold a fact-finding conference until five days after the expiration
of the 120-day period. Id. at 426. When Logan’s adversarial hearing commenced, his former
employer successfully argued that the case should be dismissed based on the commission’s failure
to abide by the statutory time limits. Id. The issue before the Supreme Court was whether this
dismissal violated Logan’s procedural due process rights. In holding that it did, the Court stressed
that Logan was “challenging not the Commission’s error” but its enforcement of a provision of state
law—the 120-day statutory period—that stripped him of his constitutional rights to procedural due
process. Id. at 436.
The present case is clearly distinguishable. Inverse condemnation actions allow the state to
cure what might otherwise be unconstitutional takings without just compensation. But unlike
FEPA’s 120-day time limit, the provisions of the Eminent Domain Code governing inverse
condemnations do not, by operation, deny parties pre-deprivation procedural safeguards. If
Plaintiffs were denied notice and an opportunity to be heard before their driveway was taken, it was
because Defendants wrongly ignored the statutory commands of the Eminent Domain Code. Under
Hudson, such “random, unauthorized act[s]” cannot form the basis for a procedural due process
Plaintiffs’ substantive due process claim based on the seizure of their driveway stands on
firmer ground. To prevail, Plaintiffs “must demonstrate that an arbitrary and capricious act
deprived them of a protected property interest.” Cty. Concrete Corp., 442 F.3d at 165. In land-use
disputes like the one at issue here, the Third Circuit has held that government action violates
substantive due process rights only when it “shocks the conscience,” United Artists Theatre Circuit,
Inc. v. Township of Warrington, 316 F.3d 392, 400 (3d Cir. 2003), and has further held that such
conscience-shocking behavior includes “virtual taking[s],” Eichenlaub v. Township of Indiana, 385
F.3d 274, 286 (3d Cir. 2004). Thus, a substantive due process claim exists where “the facts asserted
amount to a claim of an unconstitutional ‘taking’ without just compensation.” Id. at 285. This is
precisely what Plaintiffs have pled; I therefore find that they have stated a cognizable substantive
due process claim.
The existence of an established, controlling principle of law defeats Defendants’ assertion of
qualified immunity from suit. 10 Taken in the light most favorable to Plaintiffs, the allegations in the
Amended Complaint show that Defendants illegally seized Plaintiffs’ real property without
providing just compensation—a clear “virtual taking,” as defined by the Third Circuit. A
reasonable official with the power to make land-use decisions should know the contours of the law
of substantive due process that courts in this circuit have been applying for over a decade. 11
Qualified immunity is therefore unavailable with respect to Plaintiffs’ “virtual takings” claim.
See Reedy v. Evanson, 615 F.3d 197, 224 (3d Cir. 2010) (Qualified immunity shields government officials from suit
unless the right asserted “was clearly established in light of the specific context of the case.”).
Defendants’ briefing of their qualified immunity defense is noteworthy for its silence regarding Plaintiffs’ substantive
due process claim arising from the seizure of the driveway. See MTD at 25–26. Because Defendants bear “[t]he burden
B. First Amendment Claims Related to the Township’s Signage Ordinance
Plaintiffs also bring what they describe as a facial First Amendment challenge to East
Nottingham Township’s signage ordinance, Township Code §§ 27-1801 et seq. 12 Section 1801 of
that ordinance prohibits the display of outdoor signs without a permit but § 1802 exempts from this
general rule directional or public service signs, signs advertising meeting times and places of
nonprofit service, trespassing signs, and signs offering individual properties for rent (among other
things). According to Plaintiffs, § 1803, the provision governing temporary signs, also “contains an
express preference for a certain variety of religious signs—specifically exempting signs for the sale
of Christmas trees from compliance.” Am. Compl. ¶ 218. Plaintiffs argue that by regulating
signage based on subject matter, §§ 1802 and 1803 impose presumptively unconstitutional contentbased restrictions on speech. For the reasons below, I find that Plaintiffs lack standing to challenge
§ 1802, while their challenge to § 1803 fails as a matter of law.
Plaintiffs’ standing to bring due process claims does not automatically confer standing to
bring First Amendment claims. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (“A
plaintiff must demonstrate standing for each claim he seeks to press”). Similarly, standing to
challenge one provision of an ordinance does not suffice to establish standing to challenge all
provisions of that law. Serv. Empl. Int’l Union, Local 3 v. Municipality of Mt. Lebanon (SEIU), 446
F.3d 419, 424 (3d Cir. 2006). Rather, Plaintiffs must have Article III standing with respect to each
provision of the signage ordinance that they believe is unconstitutional. See FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 230 (1990) (considering petitioners’ First Amendment challenges to some
of establishing entitlement to qualified immunity,” Reedy, 615 F.3d at 223, their failure to address Plaintiffs’ surviving
claim weighs heavily against them.
Although neither party provided the Court with a copy of the Township’s signage ordinance, I am nevertheless free to
examine that law since I “may properly look at public records . . . in addition to the allegations in the complaint,”
without converting a 12(b)(6) motion into a motion for summary judgment. S. Cross Overseas Agencies, Inc. v. Wah
Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999).
provisions of zoning and licensing ordinances, but refusing to reach the merits with regards to other
provisions of the same ordinances “because petitioners have failed to show they have standing to
challenge them”), modified on other grounds by City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S.
774 (2004). Stated differently, courts “are not free to hear a party’s facial challenge to a municipal
regulation that is wholly inapplicable to the party.” SEIU, 446 F.3d at 424.
SEIU is particularly instructive. That case concerned a union’s facial First Amendment
challenge to a city ordinance that required organizations to obtain permits from local police before
engaging in door-to-door “canvassing” or “soliciting.” Id. at 421. The Third Circuit struck down
the restrictions on canvassing but refused to reach the merits of the union’s challenge to the
provision on solicitation. Id. at 424–25. According to the court, the union never alleged that it
desired or intended to solicit and was therefore “completely unaffected by the permitting
requirement applicable to solicitors.” Id. With no direct interest at stake, the court found that the
union “lack[ed] constitutional standing” to bring a claim based on the ordinance’s solicitation
SEIU controls here. Plaintiffs do not allege that they were injured because they were
prevented from, or punished for, displaying an exempt sign. Rather, their purported injury occurred
when Defendants denied their application for a sign permit. Am. Compl. ¶¶ 126, 129, 133, 219–21.
That denial cannot have been based on § 1802, a provision that delineates categories of exempt
signs but says nothing about signs like Plaintiffs’, which are subject to permitting requirements.
Article III standing requires that an injury-in-fact be fairly traceable to the conduct complained of;
SEIU makes plain that where, as here, a party is “completely unaffected” by a challenged provision,
this causal connection is lacking. Accordingly, Plaintiffs’ First Amendment challenge to § 1802
will be dismissed for lack of standing.
While § 1802 did not cause Plaintiffs’ alleged injury, the Complaint does not disclose what
provision of the ordinance did. Thus, although Plaintiffs do not allege that they sought a permit for
a temporary sign under § 1803, they may have done so. Therefore, out of an abundance of caution,
I will assume Plaintiffs have standing to challenge § 1803.
Plaintiffs’ argument—that § 1803 violates the First Amendment because it confers special
treatment for signs advertising Christmas trees—rests on a gross distortion of the ordinance’s text.
Far from stating “an express preference for a certain variety of religious signs,” ¶ 218, the ordinance
merely mentions “Christmas trees” in the context of a non-exhaustive list of frequently posted
temporary signs. See § 1803 (referring to “[t]emporary signs, including . . . signs advertising the
temporary sale of products and goods, such as Christmas trees”) (emphases added). Moreover, the
ordinance simply does not “exempt signs for the sale of Christmas trees from compliance.” ¶ 218.
Instead, § 1803 states that Christmas tree advertisements, like other temporary signs, “shall be
permitted, provided that” they meet requirements related to time, place, and manner. The phrase
“shall be permitted” does not mean “need not obtain permits,” as Plaintiffs seem to suggest: § 1803
clearly states that “a permit must be obtained before erecting any temporary sign” (emphases
added). “Shall be permitted” simply means temporary signs “shall receive permits” conditional on
compliance with the content-neutral restrictions set forth elsewhere in the section—restrictions to
which Plaintiffs voice no objections. In sum, Plaintiffs do not raise a colorable constitutional claim
based on § 1803; their facial First Amendment challenge to the Township’s signage ordinance will
therefore be dismissed.
Although Plaintiffs style their First Amendment claim as a “facial challenge” to the
Township’s signage ordinance, their Amended Complaint can also be read as an as-applied
challenge. Specifically, Plaintiffs claim that Defendant Scheese misapplied the ordinance by
“impos[ing] additional content-based restrictions upon Plaintiffs’ sign permit requests—criteria
over and above those content-based regulations already set for the in the Sign Ordinance.” ¶ 223.
To the extent these conclusory allegations can even be said to make out a colorable claim under
Towmbly and Iqbal, they are subject to Williamson County’s finality requirement. Shenkel United
Church of Christ v. N. Coventry Township, No. 09-1823, 2009 WL 3806769, at *3–5 (E.D. Pa. Nov.
13, 2009) (Surrick, J.). As noted above, it does not appear that Plaintiffs have exercised their right
to appeal the denial of their sign permit. Nor have Plaintiffs alleged that Defendants’ denial of their
signage permit was accompanied by a fine, or some other adverse action, that would render that
denial final notwithstanding Plaintiffs’ failure to appeal it. Cf. Peachlum v. City of York, 333 F.3d
429, 437 (3d Cir. 2003) (as-applied First Amendment challenge was ripe when enforcement of
signage ordinance required plaintiff to pay over $1,000 in fines). Assuming Plaintiffs’ Amended
Complaint encompasses an as-applied challenge, it is unripe.
C. Claims Based on Conspiracy and Attempted Wrongful Arrest
Plaintiffs’ last set of claims arise out of an alleged conspiracy between Defendants Brady,
Blum, “and other unknown defendants and their cronies” to have Plaintiff Seitz arrested because he
backed a rival candidate for an open seat on the Board of Supervisors. ¶ 161. According to
Plaintiffs, these actions violated Seitz’s rights to free speech and due process. These claims fail for
at least three reasons.
Plaintiffs make only one factual allegation regarding the alleged conspiracy: that Defendant
Brady falsely told a state police officer that Seitz attempted to bribe her. ¶ 163. Even accepting this
allegation as true, Defendants point out that one need not be a government actor to report
wrongdoing to law enforcement. Thus, the mere reporting of an alleged crime does not, by itself,
show that Brady “abused a power or position granted by the state,” Bonenberger v. Plymouth
Township, 132 F. 3d 20, 24 (3d Cir. 1997), and therefore does not support an inference that she
acted under color of state law, as required under § 1983. Moreover, the Amended Complaint
contains no facts to support the conclusory allegation that Brady, Blum and unnamed “cronies”
acted in concert to deprive Seitz of his constitutional rights. Seitz’s accusation of a conspiracy is
therefore entitled to no weight under Twombly and Iqbal. Finally, by Plaintiffs’ own account,
Brady did not succeed in having Seitz arrested: “Corporal Cruz of the Pennsylvania State Police
responded [to Brady’s report] and determined the allegations to be without merit.” ¶ 163. Since
§ 1983 “does not permit recovery for an attempt to deprive one of a constitutional right,” Holt
Cargo Sys., Inc. v. Del. River Port Auth., 20 F. Supp. 2d 803, 830 (E.D. Pa. 1998), aff’d, 165 F.3d
242 (3d Cir. 1999), Plaintiffs’ claims must be dismissed to the extent they rest on a failed bid to
deprive Seitz of his liberty.
Defendants’ Motions to Dismiss will be granted as to all claims, except for the substantive
due process claim based on the alleged appropriation of Plaintiffs’ private driveway. An
appropriate order follows.
/s/ Gerald Austin McHugh
United States District Judge
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