Coleman v. Armbruster et al

Filing 27

MEMORANDUM AND OPINION - The Motion to Dismiss is GRANTED IN PART. The court will remand this case to the Court of Common Pleas of Dauphin County. An appropriate order will follow. Signed by Magistrate Judge J. Andrew Smyser on 1/19/12. (rc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

A. MICHAEL COLEMAN,
Plaintiff

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v.

JAMES ARMBRUSTER and
THE BOROUGH COUNCIL OF THE
BOROUGH OF PENBROOK,
Defendants

CASE NO. 1:11-CV-0912
(Magistrate Judge Smyser)

MEMORANDUM OPINION

Background.
The plaintiff is A. Michael Coleman, who has a
Harrisburg address.

The defendants are James Armbruster, who

is the Borough Manager of Penbrook Borough, a Pennsylvania
municipal corporation and political subdivision, and the
Penbrook Borough Council.

The complaint was filed in the Court of Common Pleas of
Dauphin County on November 3, 2010.
filed on April 11, 2011.

An amended complaint was

The amended complaint was removed to

this court on May 12, 2011.

A motion to dismiss three of the

four counts of the amended complaint is now pending.

The Amended Complaint.
The amended complaint alleges that the defendants filed
civil and criminal charges against the plaintiff, charging that
he filed false tax returns in 2007 and 2008.1

The citations

brought against the plaintiff by the defendants were later
withdrawn.

The amended complaint alleges that the “false tax

return” language was inserted by defendant Armbruster, who
signed the citations, for the purposes of stigmatizing the
plaintiff and damaging his reputation.

It alleges that the

defendants also took other actions for the same purposes.

In

particular, the defendants caused a letter to be published in
the Penbrook Community News in which, with implicit reference
to the plaintiff, he was called a “scofflaw” and a person who
“refuse[s] to pay [his] fair share of taxes” and “to pay [his]
1. Copies of the citations are filed with the amended complaint.
The citations charge violations of Section 238-53(A)(2) of the
Penbrook Borough Code, i.e., that the plaintiff failed to file
copies of federal tax returns with his 2007 and 2008 Penbrook
Borough business privilege tax returns. But they also contain as
a “Nature of Offense” description the words “Filing a False 2007
Tax Return” and “Filing a False 2008 Tax Return.”
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business taxes as [a landlord].”2

2.

It was also implied in the

The text of the letter is:
Dear Neighbors,
I’m sure you’ve seen reports on the TV and in the
newspapers, and signs placed around the Borough
talking about code violations. You should know that
all of this is being caused by three absentee
landlords. All three have been sent citations for
violating the Penbrook Borough Code. Two refused to
pay their business taxes as landlords and one received
a property violation. None of these people live with
us in the Borough.
Why are they unhappy and causing such a stir? Because
they want you to believe that the Borough has treated
them unfairly, and you may be next. They have unjustly
accused members of Borough Council of using citations
to increase Borough coffers. The truth is that the
Borough never issues violation notices without first
determining that a violation of the code has occurred.
These situations lower the quality of life in the
Borough and create an atmosphere where crime can
thrive. If a property owner continues to ignore the
law, even after several notices are sent, the Borough
has no choice but to issue a citation. Once these are
issued, 80% or more of those who receive them fix the
violation. When a violation is corrected, the Borough
routinely withdraws the citation. Only those property
owners who continue to refuse to obey the law end up
in court.
The recently formed Penbrook Landlords Association has
told the Borough Council, in a public meeting as
recently as February 28, 2011, that they DO NOT
support this litigation against the Borough. They feel
the banners and the litigation drag down property
values and they are very concerned. So, what has all
this cost you, the taxpayer??? The answer is NOTHING!
The litigation is being vigorously fought by attorneys
for our insurance companies. While it is the policy of
(continued...)
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letter that the plaintiff had violated Borough trash laws and
ordinances.

The amended complaint asserts that the defendants’
efforts to stigmatize the plaintiff by the letter in the
Penbrook Community News was submitted in reaction to and that
it had reference to “those who have posted signs throughout the
Borough.” (Doc. 1-2 at ¶ 36).

The amended complaint asserts that on May 11, 2010, the
plaintiff attempted to pay his business license fee to the
Borough of Penbrook.
2.

Defendant Armbruster refused to accept

(...continued)
the Borough Council not to comment on pending
litigation I can only say that I believe that the
allegations are baseless and that Dauphin County Court
will shortly dismiss them.
I hope you understand why it has been necessary to
fight to have our ordinances enforced. To do otherwise
would mean we all would be living with trash
throughout the Borough and scofflaws who refuse to pay
their fair share of taxes, leaving you to pick up the
slack. Thank you for your support during these
troubling and difficult times.
s/ James M. Armbruster

(Doc. 1-3, p. 2).
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the fee, and he refused to issue a business license.

He shoved

the plaintiff’s papers into the plaintiff’s face, making bodily
contact.

Defendant Armbruster then filed the citations that

are referred to above, and a third citation charging a
violation under Section 238-54, operating a business without a
license.

The amended complaint asserts that defendant

Armbruster’s actions were intended to intimidate the plaintiff
into complying with Section 238-53(A)(2), in violation of the
Fourth Amendment to the Constitution of the United States.

Count I of the amended complaint contains a state law
claim of defamation, claiming that the “false tax returns”
statements in the citations and the statements in the Penbrook
Community News are defamatory.

Count II contains a state law claim of malicious
prosecution claiming that civil3 and criminal charges brought
against the plaintiff were without probable cause, were false,

3. The specific civil charges do not appear to be identified in
the amended complaint.
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were with malice, and were terminated in favor of the
plaintiff.

Count III contains a state law claim of battery.

Count IV contains a 42 U.S.C. § 1983 claim of
violations by persons acting under color of state law of the
federally protected rights of the plaintiff.

The Pending Rule 12(b)(6) Motion to Dismiss.
The pending motion was filed on May 19, 2011.
in support and a brief in opposition have been filed.

A brief
The

motion asks the court to dismiss Counts I, II and IV.

The Removal Statute and Potential Remand.
28 U.S.C. § 1441(c) provides:
Whenever a separate and independent claim or
cause of action within the jurisdiction
conferred by section 1331 of this title is
joined with one or more otherwise non-removable
claims or causes of action, the entire case may
be removed and the district court may determine
all issues therein, or, in its discretion, may
remand all matters in which State law
predominates.
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The plaintiff’s 42 U.S.C. § 1983 claims in Count IV are
claims over which this court has jurisdiction under 28 U.S.C.
§ 1331.

Count IV, for the reasons stated below, does not state

a claim upon which relief can be granted.

The other claims in

the amended complaint are, if not “separate and independent”
state law claims and causes of action, then pendent or
supplemental claims over which the court, having dismissed the
federal question claims, may decline to exercise supplemental
jurisdiction and may remand to state court, 28 U.S.C.
§ 1367(c)(3).

See Borough of West Mifflin v. Lancaster, 45

F.3d 780 (3d Cir. 1995); Balazik v. County of Dauphin, 44 F.3d
209, 216-217 (3d Cir. 1995).

At oral argument, the parties agreed that the case
should be remanded if Count IV is dismissed.

We do not

perceive there to be a reason why the federal court should
retain the case for the sole purpose of adjudicating the state
law claims of defamation, malicious prosecution and battery.
Accordingly, we will exercise discretion in favor of remanding
these non-federal claims and causes of action to the Dauphin
County Court of Common Pleas.

The defendants’ motion to
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dismiss the complaint as to Counts I and II will not be
addressed herein for that reason.

Rule 12(b)(6) Standard.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
challenges the legal sufficiency of the plaintiff’s complaint.
In deciding a motion to dismiss the complaint, we must accept
all well-pleaded factual allegations as true, “construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” McTernan
v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)(quoting
Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008)).

“Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.’” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009).

The statement required by

Rule 8(a)(2) must give the defendant fair notice of what the
plaintiff’s claim is and of the grounds upon which it rests.
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Erickson v. Pardus, 551 U.S. 89, 93 (2007).

Detailed factual

allegations are not required. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007).

But more is required than labels,

conclusions, and a formulaic recitation of the elements of a
cause of action. Id.

“In other words, a complaint must do more

than allege the plaintiff’s entitlement to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

“A complaint

has to “show” such an entitlement with its facts.” Id.

“While

legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Ashcroft,
supra, 129 S.Ct. at 1950.

“When there are well-pleaded factual

allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.” Id.

“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft,
supra, 129 S.Ct. at 1949 (quoting Twombly, supra, 550 U.S. at
570).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the
misconduct alleged.” Id.

“The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id.
But “a complaint need not pin plaintiff’s claim for relief to
a precise legal theory.” Skinner v. Switzer, 131 S.Ct. 1289,
1296 (2011).

Rule 8(a)(2) “requires only a plausible ‘short

and plain’ statement of the plaintiff’s claim, not an
exposition of his legal argument.” Id.

The factual detail

necessary to satisfy the standard will vary depending on the
case. In re Insurance Brokerage Antitrust Litigation, 618 F.3d
300, 320 n.18 (3d Cir. 2010).

The Motion to Dismiss Count IV.
Count IV contains essentially three separate claims or
causes of action, one based upon the Fourth Amendment, one
based upon the First Amendment and one based upon the
Fourteenth Amendment.

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The Fourth Amendment Claim.
The plaintiff’s Fourth Amendment claim is that the
requirement in the Penbrook Borough Code that a business
privilege tax return be accompanied by a copy of the taxpayer’s
federal tax return violates the Fourth Amendment.

The federal

tax return can be used as an aid in ascertaining the correct
business privilege tax.

The Fourth Amendment provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
U.S. Const. amend. IV.

“The essential purpose of the

proscriptions in the Fourth Amendment is to impose a standard
of “reasonableness” upon the exercise of discretion by
government officials, including law enforcement agents, in
order ‘to safeguard the privacy and security of individuals
against arbitrary invasions.’” Delaware v. Prouse, 440 U.S.
648, 653-54 (1979)(footnote omitted)(quoting Marshall v.
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Barlow’s Inc., 436 U.S. 307 (1978)).

“Thus, the permissibility

of a particular law enforcement practice is judged by balancing
its intrusion on the individual’s Fourth Amendment interests
against its promotion of legitimate governmental interests.”
Id. at 654.

“The touchstone of Fourth Amendment analysis is whether
a person has a ‘constitutionally protected reasonable
expectation of privacy.’” California v. Ciraolo, 476 U.S. 207,
211 (1986)(quoting Katz v. United States, 389 U.S. 347, 360
(1967)(Harlan, J., concurring)).

This entails “a two part

inquiry: first, has the individual manifested a subjective
expectation of privacy in the object of the challenged search?
Second, is society willing to recognize that expectation as
reasonable?” Id.

“[T]he ‘physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is
directed.’” Payton v. New York, 445 U.S. 573, (1980)(quoting
United States v. United States District Court, 407 U.S. 297,
313 (1972)).

“Private residences are places in which the
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individual normally expects privacy free of government
intrusion not authorized by a warrant, and that expectation is
plainly one that society is prepared to recognize as
justifiable.” United States v. Karo, 468 U.S. 705, 714 (1984).
Of course, “a person can have a legally sufficient interest in
a place other than his own home so that the Fourth Amendment
protects him from unreasonable governmental intrusion into that
place.” Rakas v. Illinois, 439 U.S. 128, 142 (1978).

Also, the Fourth Amendment has applicability to
searches and seizures of persons’ books, records and
electronically stored data, but only in the context where a
government agent is acting to search and/or seize the books,
records or data.

There is not any authority cited by the

plaintiff that a governmental requirement of documentation to
support an application for a government license can be
considered to be a search or seizure.

Here, the plaintiff was not arrested, his home was not
invaded, and no property or papers of his were seized.

He had

been directed by the defendant borough officials to provide to
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them copies of documents that he prepared and submitted to
federal government officials in compliance with a federal
government mandate.

The information that he recorded and

supplied in those documents is understandably perceived by him
as confidential, and it is reasonable to assume that he
considers the disclosure to be invasive as to his expectation
of privacy.

But the required disclosure is not in the nature

of a search or a seizure.

First and foremost, it is not

unconditional as is a search or seizure.

It is a disclosure

that is conditioned upon a person’s application to conduct
business in the borough.

At argument, counsel for the

plaintiff reasonably conceded that the borough may request the
financial information it seeks to obtain by mandating the tax
returns, but proposed that an affidavit of the plaintiff would
suffice.

Whether or not that would represent better borough

policy, the mandate of disclosure in the form of copies of tax
returns as a condition of obtaining a borough business license
is not a Fourth Amendment violation.

Secondly, the state’s

objective is not to obtain evidence of a crime, and the
probable cause requirement for a search or seizure would be

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inapposite.

There is no search, there is no seizure and there

is no unreasonable invasion of privacy.

The First Amendment Claim.
The First Amendment provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the government for a redress of grievances.
Retaliation for the exercise of First Amendment rights is a
constitutional violation.

Mount Healthy City Board of

Education v. Doyle, 429 U.S. 274 (1977); White v. Napoleon, 897
F.2d 103, 111-12 (3d Cir. 1990)(“Retaliation for the exercise
of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under section
1983.”).

As correctly stated in the defendants’ brief:
A plaintiff must prove four elements to
successfully establish a First Amendment
retaliation claim: (1) that he engaged in a
constitutionally-protected activity; (2) that
the government responded with retaliation; (3)
that the government retaliation was motivated
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or substantially caused by the protected
activity; and (4) the government’s actions
would deter or “chill” a person of “ordinary
firmness” from exercising his First Amendment
rights. Eichenlaub v. Township of Indiana, 385
F.3d 274, 282 (3d Cir. 2004); Zugarek v. South
Tioga Sch. Dist., 214 F. Supp. 2d 468, 476
(M.D. Pa. 2002).
(Doc. 8, p. 25).

Paragraphs 35, 36, 37 and 38 of the amended complaint
refer to persons who posted signs in the Borough, but do not
indicate that the plaintiff was one of these persons.
assume for purposes of this analysis that he was.

We will

The amended

complaint may be construed to allege that the plaintiff was one
of a class of persons, landlords having rental properties in
Penbrook Borough and other persons with businesses there, which
class of persons was subjected to retaliation by the defendants
for the First Amendment protected speech activity of some of
those persons.

However, the amended complaint goes on to allege that
the basis and motivation for the defendants’ conduct in
charging the plaintiff with violations and in refusing to
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process the plaintiff’s business license application was to
obtain compliance by the plaintiff with the Borough Code
Section 238-53(A)(2) requirement of filing copies of federal
income tax returns.

Even assuming for the sake of analysis

here that the Code section in question is in some way unlawful,
the defendants’ insistence upon its enforcement can not
reasonably be characterized as retaliation.

In any event, the

plaintiff presents no authority to support the position that
the Code section requirement is unlawful, but rather he
presents a number of policy arguments for why he holds the
opinion that the provision is not good public policy.

In the

absence of a basis in law to support the assertion that the
provision requiring copies of tax returns to be provided with a
business license application is unlawful, the assertion that
the defendants’ enforcement of that provision is retaliatory
has no merit.

If the claim of retaliation is that the letter in the
Penbrook Community News was retaliatory, we do not agree.

The

letter expresses the intention of the borough officials to
enforce ordinances and to prosecute violations.
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The language

chosen to describe offenders is perhaps not well chosen.

The

amended complaint does not allege that there were not
violations as the letter implies there were.

The complaint fails to state a claim upon which relief
can be granted of retaliation for the exercise by the plaintiff
of his First Amendment rights.

The Fourteenth Amendment Claim.
Count IV of the amended complaint contains a claim that
the tax returns requirement “attempts to chill efforts by
Plaintiff to seek redress in the courts in violation of the
substantive due process rights under the 14th Amendment of the
United States Constitution.”

Amended Complaint, ¶ 76.

In the

plaintiff’s brief in opposition to the motion to dismiss, as to
Count IV the plaintiff further asserts that “the requirement
for the provision of tax return copies is arbitrary and
capricious and violates due process” because “[t]here has never
been any adjudication that Plaintiff has lied on his tax
returns or evaded taxes in any way . . . .”

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(Doc. 9, p. 8).

Protection against governmental arbitrariness
is the core of due process, e.g., Hurtado v.
California, 110 U.S. 516, 527, 4 S.Ct. 111,
116–117, 28 L.Ed. 232, including substantive
due process, see, e.g., Daniels v. Williams,
474 U.S. 327, 331, 106 S.Ct. 662, 665, 88
L.Ed.2d 662, but only the most egregious
executive action can be said to be “arbitrary”
in the constitutional sense, e.g., Collins v.
Harker Heights, 503 U.S. 115, 129, 112 S.Ct.
1061, 1071, 117 L.Ed.2d 261; the cognizable
level of executive abuse of power is that which
shocks the conscience, e.g., id., at 128, 112
S.Ct., at 1070; Rochin v. California, 342 U.S.
165, 172–173, 72 S.Ct. 205, 209–210, 96 L.Ed.
183.
County of Sacramento v. Lewis, 523 U.S. 833 (1998).

The issuance of citations to the plaintiff was
executive action.

The ordinance requiring the submission of

the tax returns was in the nature of legislative action.

In a

substantive due process review of legislation, the presence of
a legitimate state interest that the legislature could have
found to rationally be served by the legislation is adequate to
pass constitutional scrutiny in the absence of a fundamental
right.

Nicholas v. Pennsylvania State University, 227 F.3d 133

(3d Cir. 2000).

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The overarching fact here is that the plaintiff has
refused to comply with the requirement that, to be licensed to
conduct business as a landlord in Penbrook Borough, he must
submit a copy of his federal tax return.4

In support of his

substantive due process claim, he argues that his federal tax
returns are “the most private of papers” and that there has
never been any adjudication that he lied on his tax returns or
evaded taxes.

(Doc. 9, p. 8).

None of these assertions

advances his argument that the Borough’s enforcement of the
requirement that he submit copies of his federal tax returns
with his borough business privilege tax returns is an arbitrary
and capricious governmental action, and a person’s income
source(s) and amount(s) is not information the disclosure of
which invades a fundamental right.

The substantive due process claim in Count IV is not a
claim upon which relief can be granted.

4. It is important to note that the amended complaint does not
contain a claim challenging that requirement as a matter of state
law. The only challenges to the legal validity of the Borough
Code provision are the Fourth Amendment claim and the Fourteenth
Amendment claim.
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Conclusion.
Count IV of the amended complaint fails to state a
claim upon which relief can be granted.

Accordingly, the

defendants’ motion to dismiss Count IV will be granted as to
the defendants.

This court will not address the motion to

dismiss Counts I and II but will remand the case to the Court
of Common Pleas of Dauphin County.

An appropriate order will

follow.

/s/ J. Andrew Smyser
J. Andrew Smyser
Magistrate Judge

Dated:

January 19, 2012.

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