COGNATA et al v. MUNICIPALITY OF NORRISTOWN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 10/4/17. 10/4/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LUDOVICO and ALBERTO COGNATA,
MUNICIPALITY OF NORRISTOWN and
NORRISTOWN MUNICIPAL COUNCIL,
OCTOBER 4, 2017
This is a land dispute between property owners and the Municipality of Norristown and
its Municipal Council (“Norristown”). It involves a culvert beneath Ludovico and Alberto
Cognata’s (“the Cognatas”) automobile body shop. The culvert, one of several in the area, is in
substantial disrepair. The parties appear to agree that the need for repair is becoming urgent, but
disagree as to legal responsibility for the repair. The Cognatas argue that it is a public
improvement for which Norristown has legal responsibility. Norristown disagrees, taking the
position that all of the culverts within the area in question are the responsibility of private
landowners. In response to Norristown’s position, the Cognatas have brought this action
asserting a single claim under 42 U.S.C. § 1983 and four state law claims. They also move for
an emergency writ of mandamus directing Norristown to proceed with repairs.
The sole federal claim asserts a deprivation of substantive due process. Because the facts
pled fall far short of governmental conduct that would “shock the conscience,” Defendants’
pending Motion to Dismiss will be granted.
Pertinent Factual Background
Plaintiffs contend that the culvert in question falls within The Saw Mill Run Valley Flood
Control project (“the Flood Control Project”), an undertaking to control flood waters for the
benefit of Norristown and its residents in the 1960s. The project consisted of two phases: (1)
construction of a dam and reservoir, and (2) the acquisition of easements that would allow proper
drainage. Plaintiffs cite various public documents to support their contention that Norristown
has legal responsibility for public improvements related to the project, including a sponsorship
resolution passed in 1964; an agreement between Norristown and the Pennsylvania Department
of Forests and Waters; and a later ordinance that acquired easements as part of the second phase
of the project. They assert that Norristown’s obligation is incontestable, such that its refusal to
repair the culvert as of December 2015 is outrageous conduct that amounts to a deprivation of
substantive due process.
For purposes of determining whether the facts pleaded describe behavior that can be
deemed shocking to the conscience, it is significant that Plaintiffs have already sought,
unsuccessfully, to pursue this same claim in state court, Cognata v. Municipality of Norristown,
et al., Court of Common Pleas, Montgomery County, 2016-10065. 1 Plaintiffs filed a Motion for
Peremptory Judgement, and Judge Bernard Moore took testimony in two separate hearings,
ultimately denying Plaintiffs relief in August 2016. Plaintiffs filed this action in May 2017, and
withdrew their state court action shortly thereafter.
From a review of the record in front of Judge Moore, it is clear that Norristown’s refusal
to accept responsibility for repair of the culvert in question, and others in the vicinity, is based
This fact emerged in Norristown’s response to Plaintiffs’ separately filed Emergency Motion for Writ of
Mandamus. The motion in state court was for practical purposes the same as the Emergency Motion presently
pending before me.
upon its legal conclusion that the obligations it assumed when the Flood Control Project began
were limited to the dam; that the culverts through which water would flow pre-existed the
Project and had already been constructed on private land; and that the easements Norristown
acquired were to ensure unimpeded flow of water.
Because this Motion is pending under Rule 12, I must accept Plaintiffs’ facts as true. But
in resolving a motion to dismiss for failure to state a claim, a court may properly look at public
records, including judicial proceedings, in addition to the allegations in the complaint. Jean
Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 256 (3d Cir. 2006) (citing S.
Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir.
1999). And because the precise issue before me is whether Norristown’s actions can be
characterized as outrageous, the record from the state court proceedings where this issue was
originally litigated provides important context. 2
The facts alleged are insufficient to show that Norristown’s conduct shocks the
When a landowner brings a Fourteenth Amendment substantive due process challenge,
the issue is whether the conduct of governmental officials is so outrageous as to shock the
conscience. Chainey v. Street, 523 F.3d 200 (3d. Cir. 2008). One purpose of this rigorous
standard is to prevent federal courts from becoming “super zoning tribunals,” Eichenlaub v. Twp.
of Indiana, 385 F.3d 274, 285 (3d Cir. 2004), because “[l]and-use decisions are matters of local
concern,” United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392, 402 (3d
Cir. 2003). Only “the most egregious official conduct” will suffice. Eichenlaub, 385 F.3d at
Because I am neither abstaining nor giving preclusive effect to the state court proceedings, but focusing only on the
character of Defendants’ actions, I need not be concerned over whether the issues presented to Judge Moore are
completely identical to the issue before me.
285. Assuming that Plaintiffs have a protectable interest, Norristown’s assertion of its legal
position, even if it is taking an aggressive stance, cannot be deemed to rise to the level of a
deprivation of constitutional rights.
In United Artists, the Third Circuit held that even bad-faith violations of state law do not
suffice to state a constitutional violation. 316 F.3d at 401. Nor does conduct by officials acting
completely outside the scope of their jurisdiction. Id. In Eichenlaub, the Court of Appeals
deemed insufficient allegations that government officials “applied subdivision requirements to
their property that were not applied to other parcels; that [officials] pursued unannounced and
unnecessary inspection and enforcement actions; delayed certain permits and approvals;
improperly increased tax assessments; and maligned and muzzled the [plaintiffs].” 385 F.3d at
286. It went on to cite corruption, self-dealing, or bias against an ethnic group as examples of
the kinds of conduct required to establish a constitutional violation. In Giuliani v. Springfield
Twp., allegations that spiteful township officials deliberately adopted an unreasonable
interpretation of the law were deemed insufficient, because such conduct “even if directly
contrary to Pennsylvania law, would be merely a violation of state law.” 238 F. Supp. 3d 670,
700 (E.D. Pa. 2017). And in Kriss v. Fayette Cnty., allegations that commissioners engaged in a
concerted effort to circumvent local zoning laws, and then attempted to silence protestors, were
deemed insufficient. 827 F. Supp. 2d 477, 492 (W.D. Pa. 2011).
The record here shows that Plaintiffs and Norristown have a fundamental legal
disagreement about responsibility for the site in question. But it is precisely that – a legal
disagreement. Even if Norristown is entirely wrong, such error would not amount to a violation
of the Constitution. Accordingly, Plaintiffs’ federal claims will be dismissed without prejudice, 3
and I decline jurisdiction over the state law claims. 4
/s/ Gerald Austin McHugh
United States District Judge
Plaintiffs also assert a §1983 conspiracy claim, but having failed to assert a viable constitutional
violation, the conspiracy claim necessarily fails as well. Marchese v. Umstead, 110 F.Supp.2d 361, 371
(E.D. Pa. 2000).
Although there is no need to reach the issue of abstention, Plaintiffs’ earlier action in state court would
weigh heavily in favor of abstaining.
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