Zaloga et al v. Borough of Moosic et al

Filing 26

MEMORANDUM and ORDER granting in part and denying in part 11 Motion to Dismiss ; GRANTED re Count I of the complaint, GRANTED re all claims which accrued before 12/21/08 in Counts II and III; GRANTED re pltfs' claims for substantive due process violations as they relate dfts' alleged interference w/Correctional Care's contract w/ Lackawanna County in Count III of the Complaint ; and DENIED in all other respects.Signed by Honorable James M. Munley on 7/15/11 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEANNE ZALOGA; and
EDWARD ZALOGA,
Plaintiffs

:
No. 3:10cv2604
:
:
(Judge Munley)
:
:
v.
:
:
BOROUGH OF MOOSIC;
:
MOOSIC BOROUGH COUNCIL;
:
MOOSIC PLANNING COMMISSION; :
MOOSIC BOROUGH ZONING BOARD :
OF ADJUSTMENTS;
:
JOSEPH MERCATILI;
:
JOSEPH DENTE;
:
THOMAS HARRISON;
:
BRYAN FAUVER; and
:
JAMES DURKIN,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is defendants’ motion to dismiss. Having been fully briefed,
the matter is ripe for disposition.
Background
This complaint arises from a dispute about zoning decisions made by
defendants concerning property held by plaintiffs’ neighbor. Plaintiffs are residents
of Moosic Borough in Lackawanna County, Pennsylvania. (Complaint (hereinafter
“Complt.”) at ¶¶ 1-2). Plaintiff Edward Zaloga is the sole shareholder of a health and
medical company that provides contracted medical services to correctional facilities,

including the Lackawanna County Prison.1 (Id. ¶¶ 3-4).
Plaintiffs’ home is located in a R-1 Residential District in Moosic,
Pennsylvania. (Id. at ¶ 19). Plaintiffs’ property is adjacent to the Jack Williams Tire
& Auto Service Center (“Jack Williams Tire”). (Id. at ¶¶ 20-21). Jack Williams Tire is
located in a manufacturing zoning district as established by the Moosic Borough
zoning ordinance. (Id. at ¶ 20). The facility serves as a distribution center, retail tire
shop and corporate offices for Jack Williams Tire. (Id.). Plaintiffs’ property and Jack
Williams Tire are separated by a narrow strip of land. (Id. at ¶ 22). The developer’s
original subdivision map, recorded in the Office of the Recorder of Deeds in
Lackawanna County on September 24, 1965, identifies this strip of land as Carey
Lane. (Id.). That strip of land is narrow and undeveloped, filled with natural grasses
and vegetation consistent with other undeveloped property in the area. (Id. at ¶ 23).
Carey Lane has never been developed since being identified in 1965. (Id.).
Plaintiff’s have owned their home and property since 1994. (Id. at ¶ 24). In
1999, they constructed an addition to their home that encroached on part of Carey
Lane. (Id. at ¶ 25). Plaintiffs allege that they have “exclusively, visibly, notoriously,
distinctly and in a legally-hostile [sic] manner used the portion of Carey Lane that
runs along [their] property line with a manifest intent to possess the land for
themselves.” (Id.). Indeed, defendant Joseph Dente, a member of the Moosic

1

As will become apparent below, Plaintiff Edward Zaloga’s association with
Correctional Care provides part of the basis for his claim of First Amendment retaliation.
2

Borough Planning Commission, reviewed and approved plaintiffs’ plans for an
addition that encroached on Carey Lane prior to that addition’s construction. (Id. at ¶
26). Plaintiff’s allege that they and the previous owner of the property had adverse
possession of portions of Carey Lane for more than twenty-one years. (Id. at ¶ 27).
Plaintiffs’ troubles with the Borough Planning Commission began in 2005.
During the first part of that year, plaintiffs learned that Jack Williams Tire had begun
to retread and recap tires at the facility next to their home. (Id. at ¶ 29). Plaintiffs
also learned that Jack Williams tire intended to expand their facility and these
operations. (Id.). This recapping and retreading work caused plaintiff’s property to
be covered in rubber particles, soot, smoke and noxious odors. (Id. at ¶ 30). The
manufacturing activity also caused trucks to remain parked for hours near Jack
Williams Tire. (Id. at ¶ 31). This activity also adversely affected plaintiffs’ neighbors.
(Id. at ¶ 30).
On August 5, 2005, Plaintiff Edward Zaloga sent a petition signed by eight of
his neighbors to the then-mayor of Moosic Borough, John Segilia, Defendants
Joseph Mercatili and Thomas Harrison, and other Borough Planning Commission
members. (Id. ¶ 32). This petition protested the public nuisance and zoning
violations allegedly committed by Jack Williams Tire. (Id.). Plaintiffs allege that
under Moosic Borough’s zoning ordinance, Defendant James Durkin, as Zoning
Code and Enforcement Officer, was required to initiate an investigation upon
receiving a complaint. (Id. ¶ 33). Plaintiffs contend that Durkin and the Borough

3

“knowingly, willfully and intentionally” violated the zoning ordinance by refusing to
initiate an investigation after receiving plaintiffs’ complaint. (Id.). Instead, they
knowingly allowed the violations to continue. (Id.).
On August 23, 2005, Edward Zaloga sent another petition, signed by twentythree neighbors, complaining of continuing zoning violations by Jack Williams Tire.
(Id. at ¶ 34). This petition specifically requested an investigation from the Borough.
(Id.). Still, the Borough continued willfully to refuse to investigate, allowing the
zoning violations to continue. (Id.). Plaintiffs contend that these actions violated
Borough zoning law. (Id.)
Edward Zaloga sent Durkin a letter on September 7, 2005 requesting an
investigation into zoning violations at Jack Williams Tire. (Id. at ¶ 35). Durkin again
refused to investigate, allowing the violations to continue. (Id.). Plaintiffs contend
that these actions violated Borough zoning law. (Id.).
On October 3, 2005, the Pennsylvania Department of Environmental
Protection issued a notice of violation to the company operating the manufacturing
process at Jack Williams Tire. (Id. at ¶ 36). The notice verified that contaminants
had been produced at the tire facility as a result of the manufacturing operations.
(Id.).
That same month, Jack Williams Tire filed an application with Defendant
Zoning Commission seeking approval of a proposed development plan. (Id. at ¶ 37).
The plan proposed adding nearly 50,000 square feet to the existing 85,800-square-

4

foot facility. (Id.). This proposed addition exceeded the maximum permitted size
increase under Borough zoning law. (Id. at ¶ 38). Jack Williams Tire sought to
increase the size of its operations by more than 50%. (Id.). The Zoning Commission
verbally denied this proposal on October 26, 2005. (Id. at ¶ 39). Plaintiff Edward
Zaloga wrote the Commission on December 6, 2005, requesting that the
Commission put this verbal denial in writing, as required by the Pennsylvania
Municipalities Planning Code. (Id. at ¶ 40). The Commission refused to do so. (Id.).
Jack Williams Tire then obtained an order from the Court of Common Pleas
reversing the Zoning Commission’s verbal denial. (Id.). Plaintiffs contend that the
Commission willfully committed a violation of Pennsylvania law in hopes of having a
court reverse its decision. (Id. at ¶ 41).
On January 16, 2006, Plaintiff Edward Zaloga sent a letter to the Defendant
Commission complaining of public nuisance and zoning violations at Jack Williams
Tire. (Id. at ¶ 42). The Commission again did nothing. (Id.). The Borough and
Commission’s alleged repeated failure to respond to plaintiffs’ requests for
investigation caused Zaloga to send the Commission a letter on June 5, 2006
requesting a hearing to address ongoing nuisance and violations at the Jack
Williams Tire site. (Id. at ¶ 43). Over the next eleven months, from June 2006 to
May 2007, Plaintiff Zaloga continued his efforts to get the Borough officials to
recognize the problem with the property. (Id. at ¶ 44). He made “repeated verbal
requests” to borough officials asking them to investigate various violations at Jack

5

Williams Tire. (Id.).
Jack Williams Tire submitted a Land Development Plan to the Defendant
Zoning Commission in February 2007. (Id. at ¶ 45). Plaintiff alleges this plan
violated the Borough Zoning ordinance because the addition proposed by the plan
was too large. (Id.). Under this plan, trucks, tractor-trailers, and other industrial
vehicles would idle and dock for the purpose of unloading their cargo in an area
immediately adjacent to plaintiffs’ property. (Id. at ¶ 46). Plaintiffs’ swimming pool
and bedrooms are located in this area. (Id.). Plaintiff Edward Zaloga notified Jack
Williams Tire of his concerns about noise and other public nuisances created by the
proposed use when Jack Williams Tire submitted the plan. (Id. at ¶ 47).
In March and April 2007, Plaintiff Edward Zaloga attended meetings of the
Defendant Lackawanna County Planning Commission. (Id. at ¶¶ 48-50). At those
meetings, Zaloga objected to various features of the plan, including Zaloga’s claim
that the intended use was prohibited in the zoning district, that parking was
insufficient, and that the plan did not properly contain or identify improvements
adjacent to plaintiffs’ property. (Id. at ¶ 50). Despite these objections, the Defendant
Commission conditionally approved the plan at its hearing on April 25, 2007. (Id. at
¶ 51).
Plaintiff Edward Zaloga continued his protests of this decision. He spoke with
a journalist about his complaints with the Commision and Borough’s alleged failure
to consider properly the impact of the Jack Williams Tire plan on April 25, 2007. (Id.

6

at ¶ 52). On May 8, 2007, Edward Zaloga sent a petition to Defendant Mercatili that
sixty-three of his neighbors had signed. (Id. at ¶ 54). The petition protested the
Planning Commissions’ supposed “willful and intention refusal to properly consider
the law and facts” before approving the Jack Williams Tire plan. (Id.). The Borough
and Commission did nothing to act on this petition. (Id.). Zaloga also attended a
Borough Council meeting on May 8, 2007. (Id. at ¶ 55). At that meeting, he
attempted a public protest of Commission officials’ conduct. (Id.). The meeting was
open to the public, but Council officials refused Zaloga an opportunity to speak.
(Id.). This same refusal to allow Zaloga to present his complaint occurred at Council
meetings on May 16 and May 23, 2007. (Id. at ¶¶ 56, 58). Zaloga also sent
Defendant Fauver a letter on May 23, 2007 to inform him that he “publicly protested”
approval of the Jack Williams Tire plan. (Id. at ¶ 59). Plaintiff sent other letters in
June 2007 reiterating his objections to the plan. (Id. at ¶¶ 60-61).
Despite these repeated objections, Defendant Durkin issued a permit for
construction to Jack Williams Tire on August 27, 2007. (Id. at ¶ 62). Plaintiff Edward
Zaloga attended a Planning Commission meeting open to the public on November
13, 2007. (Id. at ¶ 63). There, he continued to raise objections to issuance of the
permit, offering evidence of numerous zoning ordinance violations committed by
Jack Williams Tire. (Id.). Zaloga also attempted to introduce expert testimony on
the zoning violations, but the Commission refused to hear that testimony. (Id. at ¶
64). The Scranton Times-Tribune covered this meeting, and on November 14, 2007

7

the newspaper published an article about it. (Id. at ¶ 65). The article quoted
Zaloga’s comments at the hearing, including a statement that the zoning decision
was directly contrary to borough ordinances. (Id. at ¶ 65).
Plaintiffs entered into a settlement agreement with Jack Williams Tire on
November 28, 2007. (Id. at ¶ 66). This agreement attempted to resolve issues
about noise and other nuisances. (Id.). The parties agreed that Jack Willliams Tire
would construct a noise barrier (“berm”) to act as a buffer between the two
properties. (Id.). While Jack Williams Tire built the berm in January 2008, the
plaintiffs allege that the company breached the agreement by failing to build the
structure to the height and quality specified by the contract. (Id. at ¶ 67). Plaintiffs in
April 2008 filed a petition in the Court of Common Pleas of Lackawanna County to
enforce the settlement agreement. (Id. at ¶ 68). On July 29, 2008, at a hearing
before Judge Robert Mazzoni of the Court of Common Pleas, the parties agreed to a
supplemental settlement agreement. (Id. at ¶ 71). Jack Williams Tire agreed to
increase the height of the berm and obtain approval from the Borough and Planning
Commission to modify its existing plan. (Id.). Judge Mazzoni ordered the parties to
comply with this new agreement. (Id.).
Jack Williams Tire then attempted to modify the addition plan approved by the
Zoning Commission in August 2008. (Id. at ¶ 72). The company sought four
modifications to the existing plan: (1) elimination of a chain link fence; (2) removal of
interior landscaping; (3) inclusion of a new access driveway; and (4) an increase in

8

height of the berm by six feet. (Id.). The first three requests benefitted Jack
Williams Tire. (Id.). The fourth request benefitted the plaintiffs. (Id.). Edward
Zaloga attended a Zoning Commission hearing on August 8, 2008 to request
modification of the Jack Williams plan. (Id. at ¶ 73). He also protested the
Commission’s conduct and procedures. (Id.).
The Zoning Commission retained Michael Pasonick as an engineering
consultant, and he examined the proposed changes to the Jack Williams plan. (Id.
at ¶ 74). He sent the Commission a letter on August 18, 2008. (Id.). The letter
recommended that the Commission approve the proposed height increase for the
berm. (Id.). On August 27, 2008 the Commission held a hearing open to the public.
(Id. at ¶ 75). At the hearing, the Commission approved the three modifications that
would benefit Jack Williams Tire but “tabled” the proposed modification to the berm
height. (Id.). This refusal to approve the berm immediately came despite agreement
between plaintiffs and Jack Williams Tire on that change and support from the
Borough’s engineering consultant. (Id.). The Commission expressed aesthetic
concerns about the berm, as well as fears that the height increase could encroach
on existing swale and cause storm runoff. (Id. at ¶ 76). On September 24, 2008,
Pasonick sent the Commission a revised letter finding that the new berm height
would not encroach on a swale or ditch, and would not effect runoff. (Id. at ¶ 77).
Pasonick found, however, that the height of the ditch could become “‘mountainous’”
and offend neighbors’ aesthetic sensibilities. (Id.).

9

On September 24, 2008, the Commission convened a hearing open to
members of the public to consider the berm height modification. (Id. at ¶ 78). The
Commission denied this requested modification to the Jack Williams Tire plan, even
though plaintiffs and Jack Williams Tire had supported the heightened berm and the
Commission had already approved the other modifications to the plan. (Id.). The
modifications the Commission approved all benefitted Jack Williams Tire. (Id.).
Plaintiff Edward Zaloga attended this meeting and protested the Commissions’
decision, as did Moosic Township Solicitor Christopher Powell, who warned the
Commissioners that failing to approve the modification would violate a court order
and subject them to contempt-of-court charges. (Id. at ¶¶ 79-80). The Scranton
Times-Tribune published an article about this meeting on September 25, 2008. (Id.
at ¶ 82).
In December 2008, Judge Mazzoni held a conference with Zoning
Commission members and suggested that the Borough hold a public meeting about
the proposed berm height modification. (Id. at ¶ 83). On December 22, 2008, the
Borough Council convened such a meeting. (Id. at ¶ 84). The supposed purpose of
the meeting was to gain the input of local residents on the proposed modification of
the berm, but the Council provided plaintiffs and other local residents with only a few
hours notice of the hearing. (Id. at ¶ 84). Plaintiffs contend that this failure to
provide notice of a meeting violated Pennsylvania law. (Id. at ¶¶ 84-86). Plaintiffs
also allege that at this meeting, Defendant Mercatili stated that neighbor’s feedback

10

would guide the Council’s decision about whether to approve the zoning
modification. (Id. at ¶ 87). Mercatili also admitted that more people would have
attended the hearing if more notice had been given, and if the meeting were not
scheduled three days before Christmas. (Id. at ¶ 88). Plaintiffs allege that this
failure to provide proper notice “suppressed” residents’ ability to attend and be heard
at the public meeting. (Id. at ¶ 89). They also allege that the Council took these
actions to retaliate against plaintiffs and to interfere with the use and enjoyment of
their property. (Id. at ¶ 90).
On March 17, 2009, Plaintiff Edward Zaloga filed pro se objections to the
nomination petitions of Defendant Mercatili and Segilia in the Court of Common
Pleas of Lackawanna County, Pennsylvania. (Id. at ¶ 91). He alleged that both
Segilia and Mercatili were ineligible for public office because they had both pled nolo
contendre to various criminal charges in December 1992. (Id.). On April 9, 2009,
Plaintiff Jeanne Zaloga became frightened when she observed two unidentified men
on plaintiffs’ property. (Id. at ¶ 92). These two men had previously identified
themselves as “‘surveyors.’” (Id.). Edward Zaloga called the police, and the
responding officer ejected the two men from plaintiffs’ property. (Id. at ¶ 93). The
responding officer informed Zaloga that the men worked for “‘Design Consultants’”
which had been hired to do unidentified work on behalf of John Brazil, the Borough
Solicitor. (Id.).
On April 27, 2009, a member of the Lackawanna County Prison Board

11

contacted Edward Zaloga. (Id. at ¶ 94). The Prison Board oversees the
Lackawanna County Prison, where Zaloga’s company has a contract to provide
medical and health services. (Id.). This board member told Zaloga that Segilia and
Defendant Mercatili were upset with plaintiffs’ opposition to their decisions on the
Jack Williams Tire facility. (Id. at ¶ 95). The two men wanted the Prison Board
member to oppose renewing the contract Zaloga’s company had with the prison.
(Id.). Another prison board member informed Zaloga of similar statements Segilia
and Mercatili made to him. (Id. at ¶ 96). The two men agreed to support the Prison
Board member’s political campaign if he voted against renewing the contract. (Id.).
Plaintiffs allege that these attempts to interfere with Correctional Care’s contract with
the prison continued on numerous other occasions. (Id. at ¶ 97).
Plaintiff filed the instant six-count complaint on December 21, 2010. Count I
alleges that defendants violated Plaintiff Edward Zaloga’s free-speech rights by
refusing to allow him to speak at council meetings on May 8, May 16, and May 23,
2007 and by refusing to allow him to present evidence at a public meeting on
November 13, 2007. Count II alleges that plaintiffs engaged in protected speech
during their frequent protests about zoning violations and Zoning Commission
policies, and that the defendants retaliated against plaintiffs for this speech by
allowing Jack Wilson Tire’s zoning violations to continue, refusing to allow plaintiffs
to speak at public meetings, approving requests from Jack Williams Tire that violated
plaintiffs’ property rights, and failing to approve modifications to the zoning plan.

12

Defendants also allegedly retaliated by sending men to trespass on plaintiff’s
property and by opposing renewal of Correctional Care’s contract with Lackawanna
County. Count III alleges a violation of plaintiff’s substantive due process rights
through defendants’ interference with plaintiffs’ property and free-speech rights.
Count IV alleges a conspiracy to violate plaintiffs’ constitutional rights in violation of
42 U.S.C. § 1983. Count V alleges a common-law conspiracy to violate plaintiffs’
rights. Count VI is a claim for adverse possession of the Carey Lane property.
Jurisdiction
Because the case is brought pursuant to 42 U.S.C. § 1983, the court has
jurisdiction pursuant to 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”). The court has supplemental jurisdiction over the plaintiff’s state law
claims pursuant to 28 U.S.C. § 1367.
Legal Standard
When a defendant files a motion pursuant to Rule 12(b)(6), all well-pleaded
allegations of the complaint must be viewed as true and in the light most favorable to
the non-movant to determine whether “under any reasonable reading of the
pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper Darby Township,
838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of
York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d
564, 565 (3d Cir. 1977) (per curium)). The court may also consider “matters of

13

public record, orders, exhibits attached to the complaint and items appearing in the
record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal
conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad.
of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’” a standard
which “does not require ‘detailed factual allegations,’” but a plaintiff must make “‘a
showing, rather than a blanket assertion, of entitlement to relief’ that rises ‘above the
speculative level.’” McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the conduct alleged.” Id.
Discussion
Defendants seek dismissal of the complaint on several grounds. The court will
address each in turn.
Statute of Limitations

14

As a general matter, state law applies to §1983 claims when determining the
appropriate statute of limitations “if it is not inconsistent with federal law or policy to
do so.” Wilson v. Garcia, 471 U.S. 261, 265 (1985). Pennsylvania law requires that
the plaintiff commence his action within two years of his injury. See 42 P A. C ONS.
S TAT. .A NN. §5524(7) (establishing a two-year statute of limitations for “any . . .
action or proceeding to recover damages for injury to person or property which is
founded on negligent, intentional, or otherwise tortious conduct”). Moreover,
Pennsylvania courts have ruled that the statute of limitations begins to run in cases
where an injury is ongoing “when the plaintiff knows, or reasonably should know: (1)
that he has been injured, and (2) that his injury has been caused by another party’s
misconduct.” Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 500 (Pa. Super. Ct.
1984).
i. Count I
Defendants argue that Count I of the complaint must be dismissed with
prejudice because plaintiffs do not allege any conduct occurred within the applicable
statute of limitations. Plaintiffs filed their complaint on December 21, 2010, and all
the conduct alleged in this count occurred in 2007, more than two years before the
complaint appeared. Plaintiffs respond that Count I is based on conduct that
occurred after December 21, 2008, since plaintiffs have alleged that the defendants
were involved in a continual campaign to harass them and that this campaign
continued well into 2009.

15

Plaintiffs argue that the continuing violations doctrine should allow their
complaint to proceed. The continuing violations doctrine provides “an ‘equitable
exception to the timely filing requirement.’” Cowell v. Palmer Twp., 263 F.3d 286,
292 (3d Cir. 2001) (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.
1995)). By the terms of the doctrine, “‘when a defendant’s conduct is part of a
continuing practice, an action is timely so long as the last act evidencing the
continuing practice falls within the limitations period; in such an instance, the court
will grant relief for the earlier related acts that would otherwise be time barred.’” Id.
(quoting Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927
F.2d 1283, 1295 (3d Cir. 1991)).2 To fit within the doctrine, a defendant’s actions
must be “‘more than the occurrence of isolated or sporadic acts.’” Id. (quoting West,
45 F.3d at 755)). Courts utilize three factors to determine whether the acts
complained of qualify: “(1) subject matter–whether the violations constitute the same
type of discrimination, tending to connect them in a continuing violation; (2)
frequency–whether the acts are recurring or more in the nature of isolated incidents;
and (3) degree of permanence–whether the act had a degree of permanence which
should trigger the plaintiff’s awareness of and duty to assert his/her rights and
2

The Third Circuit Court of Appeals has explained the context in which the continuing
violations doctrine most clearly operates as an equitable device: “there is a ‘natural affinity’
between the theory underlying hostile environment claims and the continuing violation
theory . . . A sexually hostile work environment often ‘results from acts of sexual
harassment . . . which are pervasive and continue over time, whereas isolated or single
incidents of harassment are insufficient to constitute a hostile environment.’” Rush v. Scott
Specialty Gases, Inc., 113 F.3d 476, 482 (3d Cir. 1997) (quoting West v. Philadelphia Elec.
Co., 45 F.3d 744, 755 (3d Cir. 1995)).
16

whether the consequences of the act would continue even in the absence of
continuing intent to discriminate.”3 Id. Once a plaintiff establishes that the doctrine
applies and that one violation occurred within the period established by the statute of
limitations, a plaintiff may then “offer evidence of, and recover for, the entire
continuing violation.” West, 45 F.3d at 755.
Plaintiffs allege that all of defendants’ conduct was part of a larger scheme to
violate their rights, and that defendants’ continued their scheme to violate their rights
through a series of acts after December 21, 2008. They point to a number of events
to advance this argument: failure to provide notice about a December 22, 2008
public meeting regarding plaintiffs’ property; the two trespassers ejected from
plaintiffs’ property in April 2009; attempts to interfere with plaintiffs’ contract with
Lackawanna County in 2009. Plaintiffs contend that these events after December
21, 2008 were part of a continuing practice of violating plaintiffs’ constitutional rights
and are thus saved by the continuing violations doctrine. In any case, dismissal at
this point would be premature, since discovery would reveal facts which would make
the continuing violations doctrine apply.
The court will grant the defendants’ motion on this count. Plaintiffs’ allegation
here is that defendants violated Plaintiff Edward Zaloga’s free speech rights on four

3

The third of these factors requires a court to “consider the policy rationale behind
the statute of limitations. That is, the continuing violations doctrine should not provide a
means for relieving plaintiffs from their duty to exercise reasonable diligence in pursuing
their claims.” Cowell 263 F.3d at 295.
17

occasions in 2007 by refusing to allow him to speak or otherwise participate in public
meetings regarding zoning decisions on the Jack Williams Tire facility. All claims
related to these free speech concerns accrued when the council refused to allow
Zaloga to speak, as he was aware of his injury (inability to exercise his free speech
rights) and the source of that injury (the Board’s refusal to allow him to speak or
present evidence). Plaintiffs’ free speech claims here were discrete, related to
particular, concrete incidents, and they could have filed suit at the time the events
took place. Courts have found that the continuing violations “theory does not apply
when plaintiffs are aware of the injury at the time it occurred.” Morganroth &
Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir.
2003). Such is the case here.
This case is like Cowell v. Palmer Township. In Cowell, a developer sued a
township, alleging that two municipal liens imposed on property that was part of a
development amounted to a taking that violated the Fifth Amendment and the
Substantive Due Process Clause of the Fourteenth Amendment. Cowell, 263 F.3d
at 289. The township imposed the liens in 1992 and 1993, but the plaintiffs did not
file their complaint until 1999. Id. at 288-89. The district court ruled that plaintiffs’
due process claim was barred by the two-year statute of limitations. Id. at 291. On
appeal, plaintiffs contended that the continuing violations doctrine saved their claim,
because “defendants engaged in a ‘continuing campaign of affirmative acts’ that
interfered with their substantive due process rights.” Id. at 292. Plaintiffs alleged

18

“that the Township engaged in a campaign of harassment against them that
extended beyond the imposition of the two municipal liens.” Id. at 294. They pointed
to five acts over a two year period they alleged represented evidence of this
harassment. Included in these acts were the township’s breach of the terms of an
agreement designed to eliminate one of the liens; a zoning decision that lowered the
value of one of the lots in the development plaintiffs owned; another planning
decision that compelled plaintiffs to reduce the sale price for another lot; a townshipimposed requirement for installation of stop lights on one of the lots in the
development; a five-year-old bill sent by the Township to the plaintiffs for the
inspection of a building. Id. Plaintiffs also complained of a recent state-court filing
where the Township sought to have plaintiffs make further improvements to their
property. Id.
The court applied the three-part standard described above, finding first that
the acts cited by plaintiffs were “isolated, intermittent acts,” and not part of an
ongoing pattern. Id.

4

The court found that the subject matter of the alleged

violations was not related to the liens, which formed the basis of the plaintiffs’
allegations. Id. The plaintiffs had “attempt[ed] to link these acts by characterizing
them as general interference with property rights.” Id. The court rejected this claim,
finding that “our substantive due process jurisprudence has always focused on the

4

The court also rejected plaintiffs contention that the liens themselves amounted to a
continuing violation as long as they were in place, noting that “[t]he focus of the continuing
violations doctrine is on the affirmative acts of the defendants.” Cowell, 263 F.3d at 293.
19

particular acts of the defendant, and not a general interference with property rights.”
Id. Since, as plaintiffs admitted at oral argument, each of defendants’ acts was “an
independent violation of [plaintiffs’] substantive due process rights,” plaintiffs should
have brought “a new § 1983 claim with respect to these alleged harassments
instead of trying to tack them on to their existing claim.” Id. at 294-95. The case
here is similar; the defendants’ refusals to allow Edward Zaloga to speak or present
evidence at hearings were each an independent violation of Zaloga’s First
Amendment rights, and he could have brought claims after each violation.
The court next addressed whether the acts alleged by the plaintiffs occurred
with a sufficient frequency to make the them part of a recurring pattern or simply
isolated incidents. Plaintiffs had argued that defendants had been engaged in a
campaign of harassment that began as early as 1987 and continued into the late
1990s. Id. at 295. The court pointed out that “[m]any of the alleged harassing acts
deal with routine dealings between a land developer and a board of supervisors” that
could not be considered substantive due process violations. Id. In any case, claims
related to those acts would be different violations from those related to the liens and
alleged in the complaint; to satisfy the “frequency” requirement, the acts “must at
least be acts of substantially similar nature to those which were the basis of the
original claim.” Id. While the acts allegedly violating plaintiffs’ constitutional rights
were not as separate from the initial incidents as in Cowell, they nevertheless were
separate and discrete acts from which individual claims could flow. Plaintiffs sat on

20

these rights, and cannot use the continuing violations doctrine to revive claims on
which the statute of limitations has run. See, e.g., Harris v. Township of O’Hara, 282
Fed. Appx. 172, 175 (3d Cir. 2008) (finding no continuing violation in Township’s
alleged discriminatory enforcement of zoning ordinance in 2006 against plaintiffs
because township zoning board had made an identical decision in 2003 because the
first decision “triggered [plaintiffs’] duty to assert any constitutional violations,” and to
find a continuing violation would allow plaintiffs “to revive stale claims under the
guise of a tenuous continuing violations theory.”)
Finally, the court in Cowell concluded that the acts about which plaintiffs
complained “had a ‘degree of permanence’ which should trigger the plaintiff’s
awareness of and duty to assert his/her rights.” Cowell, 263 F.3d at 295. The court
concluded that “the plaintiffs were aware of the wrongfulness of the liens when the
liens were imposed in 1992 and 1993. Therefore, the plaintiffs should have brought
a claim to strike the liens in state court and filed a § 1983 claim within the applicable
limitations periods.” Id. Allowing plaintiffs to bring a claim based on the imposition
of the liens “would be unfair to the Township and contrary to the policy rationale of
the statute of limitations.” Id. As such, the court concluded that the equities
balanced in favor of the defendants and refused to apply the continuing violations
doctrine. Id. The same situation applies here: each refusal to allow plaintiffs to
participate in meetings was an independent and complete act; plaintiffs needed no
additional information to become aware of the injury they suffered. The wrongs they

21

allegedly faced were permanent and connected to an individual act. The continuing
violations doctrine, if applied here, would allow plaintiff’s to revive stale claims simply
because they bear a resemblance to current controversies.
The three factors thus weigh against applying the continuing violations
doctrine to this case, and the court will grant the motion on this claim. The
allegations of constitutional violations contained in this count all occurred more than
two years before plaintiffs filed the complaint and the statute of limitations is not
tolled by the continuing violations doctrine.
ii. Count II
Defendants also contend that Count II of the complaint should be dismissed,
largely on statute-of-limitations grounds. They argue that nearly all of the retaliation
alleged by the plaintiffs occurred more than two years before plaintiffs filed their
complaint, and is therefore barred. Only two allegations of retaliation fall within the
statute of limitations. The first, the sending of “surveyors” to plaintiffs’ property, does
not involve any action by the defendants and is thus not actionable under Section
1983. The second, agitation that Correctional Care’s contract with Lackawanna
County not be renewed, is not the sort of activity that amounts to retaliation.
As retaliatory activity, the plaintiffs point to a series of actions: defendants
allowed Jack Williams Tire to breach borough zoning ordinances; “frustat[ed]
plaintiffs’ ability to speak freely at publicly held hearings”; “approv[ed]” zoning
requests made by Jack Williams tire that damaged their property rights; and refused

22

a zoning modification that would have benefitted plaintiffs. (Complt. at ¶ 109). In
addition, plaintiffs contend that defendants sent two “surveyors” to plaintiffs’ home to
harass, intimidate and frighten them. (Id. at ¶ 111). Finally, defendants contend that
defendants retaliated against them by attempting to interfere with Correctional
Care’s contractual relationship with Lackawanna County. (Id. at ¶ 112).
Defendants contend that all of the retaliatory conduct described by the
plaintiffs occurred more than two years ago, and any claims based on that old
conduct is barred. The court agrees that plaintiffs could not state a claim based on
any alleged retaliatory conduct that occurred before December 21, 2008, two years
before plaintiffs filed their complaint. Such retaliation would have been a an isolated
and discrete incident that would have put plaintiff on notice of the claim, whatever
other acts of retaliation followed. For the reasons described above, retaliation that
occurred more than two years ago cannot serve as a basis of the claim. The claim
contends, however, that defendants’ refusal to enforce the zoning ordinance and
refusal to allow plaintiffs to voice a complaint continues, and continues to injure
plaintiffs. To the extent that plaintiffs could prove the existence of such retaliatory
action during the relevant time period, they have stated a claim.
In any case, defendants concede that two alleged incidents of retaliation
occurred during the relevant time period, and argue for dismissal of the claim based
on the substantive law of retaliation. A plaintiff seeking to recover on a First
Amendment retaliation claim “must allege: (1) constitutionally protected conduct, (2)

23

retaliatory action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights, and (3) a causal link between the constitutionally protected
conduct and the retaliatory actions.” Thomas v. Independence Twp., 463 F.3d 285,
296 (3d Cir. 2006). Plaintiffs allege that they spoke at public meetings over a period
of years to dispute the zoning decisions made by the officials in the Defendant
Borough. Defendants do not appear to dispute that such conduct amounts to
constitutionally protected conduct. Defendants instead dispute whether the
defendants’ alleged conduct in sending “surveyors” to plaintiffs’ property and
attempting to prevent renewal of the Correctional Care contract amount to conduct
sufficient to state a claim for retaliation.
The Third Circuit has declared in the context of workplace retaliation that “the
key question in determining whether a cognizable First Amendment claim has been
stated is whether ‘the alleged retaliatory conduct was sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights.’” McKee v. Hart, 436
F.3d 165, 170 (3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d
Cir. 2000)). The sort of conduct that would count as retaliatory “‘need not be great in
order to be actionable,’ but it must be more than de minimis.” Id. (quoting Suppan,
203 F.3d at 235). Here, the plaintiffs allege that defendants5 sent two men to

5

Defendants also argue that the claim should be dismissed here because plaintiffs
have not alleged that any of the defendants actually sent the phone surveyors onto
plaintiffs’ property. Defendants point out that plaintiffs allege that they were informed that
the two men had been hired by John Brazil, the borough solicitor. Since Brazil is not a
defendant, defendants argue, plaintiffs have not alleged that defendant acted “under color
24

plaintiffs’ property to harass and intimidate them because they spoke against Zoning
Board decisions. Harassment and intimidation by unknown trespassers on one’s
property would cause a reasonable person to re-think engaging in free-speech in the
future, and is enough to state a claim for First Amendment Retaliation. Similarly,
attempts by Borough officials–even if unsuccessful6 –to prevent the successful
operation of plaintiffs’ business, would cause a person of ordinary firmness to
reconsider speech in the future. As such, plaintiffs have stated a First Amendment
retaliation claim and the court will deny the motion on this point.
iii. Count III
Defendants argue that Count III of plaintiffs’ complaint, which alleges
violations of their substantive due process rights, should be dismissed. They argue
both that the claims are time barred, and that even if not time-barred, none of the

of state law,” as required by Section 1983. The court does not read the plaintiffs’
allegations that way. The claim alleges that “DEFENDANTS willfully and intentionally
retaliated against PLAINTIFFS by sending two “surveyors” to PLAINTIFFS’ home to
intimidate, harass, and frighten PLAINTIFFS.” (Complt. at ¶ 111). Giving the complaint the
generous reading required at this stage in the proceedings, the court finds that the plaintiffs
have alleged that the defendants retaliated against them by sending the “surveyors” to the
their property. The court reads the allegation to be that defendants directed this harassing
activity to occur, even if the direct order came from Brazil. Defendants may of course
renew their argument at the summary judgment stage if evidence demonstrates that none
of the named defendants were involved in ordering this action and that there was no official
policy or custom subjecting the municipality to liability.
6

The court rejects defendants’ argument that the continuation of the Correctional
Care contract with Lackawanna County means that the plaintiffs make out a claim for
retaliation based on defendants’ alleged attempt to have that contract rescinded. The
question in this context is how an ordinary person would respond to defendants’ conduct,
not whether defendants succeeded in their alleged retaliatory efforts.
25

defendants’ alleged conduct is so outrageous as to “shock the conscience” and
implicate substantive due process.
“When complaining of a violation of substantive due process rights, a plaintiff
must prove that the governmental authority acted to ‘infringe a property interest
encompassed by the Fourteenth Amendment.’” Acierno v. Cloutier, 40 F.3d 597, 616
(3d Cir. 1994) (quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667,
679 (3d Cir. 1991)). Once this property interest is established, the court must then
decide whether the actions of a state official inappropriately infringed this interest.
Courts have determined that substantive due process rights are violated by state
actors only when those actors’ behavior “shocks the conscience.” The United States
Supreme Court has defined such behavior as “conduct intended to injure in some
way unjustifiable by any government interest.” County of Sacramento v. Lewis, 523
U.S. 833, 849 (1998). Conscience-shocking behavior consists of “only the most
egregious and arbitrary official conduct.” Assocs. in Obstetrics & Gynecology v.
Upper Merion Twp., 270 F. Supp. 2d 633, 654 (E.D. Pa. 2003). Behavior that
shocks the conscience depends on the facts of the case, and the court’s “concern
with preserving the constitutional proportions of substantive due process demands
an exact analysis of the circumstances before any abuse of power is condemned as
conscience-shocking.” Id.; See also United Artists Theatre Circuit v. Twp. of
Warrington, 316 F.3d 39s, 399-400 (3d Cir. 2003) (holding that “executive action
violates substantive due process only when it shocks the conscience but that the

26

meaning of this standard varies depending on the factual context.”).
Zoning decisions can fall under this standard when government action to
restrict use is “arbitrary and irrational.” Neiderhiser v. Borough of Berwick, 840 F. 3d
213, 218 (3d Cir. 1988) (finding that a denial of a permit for building a store was
“arbitrary and irrational” because the only reason for denial was the fact that the
video store offered pornographic films); see also Indep. Enters. Inc. v. Pittsburgh
Water and Sewer Auth., 103 F. 3d 1165, 1180 (3d Cir. 1997) (holding that a
substantive due process claim applies only when a constitutionally protected interest
like landownership is involved, even if the decision appears “arbitrary and
irrational.”). When substantive due process standards are applied to zoning
decisions, a plaintiff must allege more than “the kind of disagreement that is frequent
in planning disputes.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir.
2004). This standard should be a high one, since a substantive due process claim
should not “[convert] federal courts into super zoning tribunals.” Id. at 285. To
implicate due process, such a claim must contain “allegations of corruption or selfdealing” or evidence that officials tried “to hamper development in order to interfere
with otherwise constitutionally protected activity at the project site, or” had “some
bias against an ethnic group,” or performed a “virtual ‘taking.’” Id. at 286; see also
Maple Props., Inc. v. Twp. of Upper Providence, 151 Fed. Appx. 174, 179 (3d Cir.
2005) (finding that zoning decisions violate due process when they involve
“corruption, self-dealing, or a concomitant infringement on other fundamental

27

individual liberties, resulting in harms that cannot be adequately rectified by pre- or
post-deprivation proceedings.”).
Plaintiffs argue that they have alleged corruption or self-dealing from borough
officials. The complaint, they point out, alleges that “‘[d]efendants’ decision making
and use of official authority with respect to Plaintiffs was motivated by self-interest,
animosity toward Plaintiffs, and a desire to harass, intimidate, threaten, and
potentially harm Plaintiffs based upon their opposition to the Jack Willliams Tire
Addition and the Borough.’” (Plaintiffs’ Brief in Opposition (Doc. 13) at 17 n.5)
(quoting Complt. at ¶ 122). Such allegations, they insist, are enough to state a
substantive due process claim based on self-dealing. Moreover, they contend that a
substantive due process violation occurs whenever a defendant willfully disregards
the law and harms a plaintiff’s property rights, and that they have alleged such
actions in the complaint.
In support of this count of the complaint, plaintiffs allege that defendants
“repeatedly refused to investigate zoning ordinance violations committed by Jack
Williams Tire . . . despite numerous complaints and petitions by plaintiffs.” (Complt.
at ¶ 116). Plaintiffs likewise allege that defendants refused to allow them to lodge
protests regarding zoning decisions at public meetings. (Id. at ¶ 117). They also
contend that defendants refused to modify zoning plans that favored plaintiffs, but
acted on modifications favoring Jack Williams Tire. (Id. at ¶ 118). Finally, plaintiffs
contend that defendants sent men to plaintiffs property to harass them and interfered

28

with Correctional Care’s contract with Lackawanna County. (Id. at ¶¶ 119-120).
The court will grant the motion to dismiss on this point as it relates to the
defendants’ zoning decisions. First, most of the conduct plaintiffs claim violated their
substantive due process rights occurred more than two years before the plaintiffs
filed their complaint. As explained above, almost all of the meetings and the zoning
decisions about which plaintiffs complain took place before December 21, 2008. For
the reasons stated in reference to Count I, the court concludes that any claims
plaintiffs had about the way the borough allegedly conducted those meetings were
ripe at the conclusion of the meetings and constituted separate, discrete violations of
plaintiffs’ rights. The continuing violations doctrine does not apply, and plaintiffs are
barred from bringing claims based on that conduct.
In any case, to the extent that plaintiffs’ claims concerning the zoning
decisions made by the defendants are not barred by the statute of limitations, they
fail to state a substantive due process claim. As described above, plaintiffs complain
about the zoning decisions defendants made, and such complaints represent “the
kind of disagreement that is frequent in planning disputes.” Eichenlaub v. Twp. of
Indiana, 385 F.3d 274, 286 (3d Cir. 2004). To find that the conduct alleged by the
defendants–failing to approve plans plaintiffs insist met zoning guidelines, making
erroneous decisions about the consequences of a plan, improperly enforcing zoning
laws already on the books–would transform a “federal [court] into [a] super zoning
[tribunal].” Id. at 285. This decision applies even to those portions of the claim the

29

court has concluded are time-barred.
Some portions of this claim are not time barred, however, and the court must
examine them. One part of this claim addresses defendants’ actions at a public
meeting that occurred on December 22, 2008. Plaintiffs complain about the manner
in which defendants conducted the meeting and the amount of notice they provided
before holding it. Seen as a dispute about zoning decisions, the court finds that
plaintiffs’ complaints do not cite behavior that shocks the conscience, but simply
reflect disagreements about how meetings should be run. Even if the court
evaluates plaintiffs’ claim as a general substantive due process claim and not a
claim related specifically to a zoning decision, such alleged behavior is not “conduct
intended to injure in some way unjustifiable by any government interest.” County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Conscience-shocking behavior
consists of “the most egregious and arbitrary official conduct,” and failing to provide
sufficient notice does not qualify as such. Assocs. in Obstetrics & Gynecology v.
Upper Merion Twp., 270 F. Supp. 2d 633, 654 (E.D. Pa. 2003). Here, plaintiffs’
complaint is that defendants did not provide the proper notice for a meeting
convened to consider residents’ views on revised zoning plans, and that failure to
provide this proper notice violated state law. Such allegations do not state a
substantive due process claim. Courts have found that violations of state law, even
those done in bad faith, do not in themselves create a Fourteenth-Amendment claim.
See, e.g., UA Theatre Circuit, 316 F.3d at 402 (even a “bad faith” violation of state

30

law does not make an action “conscience shocking”); Highway Materials, Inc. v.
Whitemarsh Twp., 386 Fed. Appx. 251, 257 (3d Cir. 2010) (finding that “the most
that can be proven is a bad-faith violation of state law, which does not meet the
[conscience-shocking] standard.”); Lindquist v. Buckingham Twp., 106 Fed. Appx.
768 (3d Cir. 2004) (“without more, a violation of state law, even a bad faith violation
of state law, will not support a substantive due process claim in a land-use dispute).
Plaintiffs cite to two other incidents in stating their claim for substantive due
process, however, and the court concludes that both these incidents occurred within
the statutory limitations period. Neither of these incidents involve a zoning decision,
however, and the first question before the court is whether either of these incidents
implicates a property interest protected by the due process clause of the Fourteenth
Amendment. As explained above, plaintiffs allege that defendants sent anonymous
men to their property to harass and intimidate them during the dispute over zoning
use. They also allege that defendants interfered with Correctional Care’s contractual
relationship with Lackawanna County. The court concludes that plaintiffs have
alleged that defendants interfered with their use and enjoyment of their property
without any rational justification, but merely to harass and harm plaintiffs in an
arbitrary and irrational manner, and thus have claimed that defendants interfered
with a protected property interest and violated their substantive due process rights.
See DeBlasio v. Zoning Bd. of Adjustment for Twp. of West Amwell, 53 F.3d 592,
601 (3d Cir. 1995) (finding that “in situations where the governmental decision in

31

question impinges upon a landowner’s use and enjoyment of property, a landowning plaintiff states a substantive due process claim when he or she alleges that
the decision limiting the intended land use was arbitrarily or irrationally reached.”).
In terms of the other incident not time-barred, however, the court finds that
plaintiffs have not claimed that defendants infringed a protected property interest.
The property interest here in question is the Correctional Care contract with
Lackawanna County. The plaintiffs claim that defendants interfered with this
contract, attempting to have the contract cancelled, in a malicious effort to harm the
plaintiffs. Clearly, “[t]o prevail on a non-legislative substantive due process claim, “‘a
plaintiff must establish as a threshold matter that he has a protected property interst
to which the Fourteenth Amendment’s due process protection applies.’” Nicholas v.
Pennsylvania State Univ., 227 F.3d 133, 139-140 (3d Cir. 2000) (quoting Woodwind
Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000)). While a plaintiff
bringing a procedural due process claim may establish a protected property interest
with respect to state law, “‘not all property interest worthy of procedural due process
protection are protected by the concept of substantive due process.’” Id. at 140
(quoting Reich v. Beharry, 883 F.2d 239, 243 (3d Cir. 1989)). To establish a
substantive due process violation, “‘a plaintiff must have been deprived of a
particular quality of property interest.’” Id. (quoting DeBlasio, 53 F.3d at 598).
“[W]hether a certain property interest embodies this ‘particular quality’ is not
determined by reference to state law, but rather depends on whether that interest is

32

‘fundamental’ under the United States Constitution. Nicholas, 227 F.3d at 140.
In Nicholas, the plaintiff, a tenured professor terminated by the defendant
university, claimed his contract created a property interest protected by substantive
due process. The court disagreed, finding that plaintiff’s “tenured public employment
is a wholly state-created contract right; it bears little resemblance to other rights and
property interests that have been deemed fundamental under the Constitution.” Id.
at 143. The situation here is analogous: plaintiffs claim that defendants interfered
with a state-created contractual interest. As such, plaintiffs have not alleged
interference with a fundamental interest and have not stated a substantive due
process claim. See also, Reich v. Beharry, 883 F.2d 239 (3d Cir. 1989) (finding that
plaintiff, a lawyer contracted to perform services for a county which then refused to
pay him, had not alleged deprivation of an interest protected by substantive due
process) Hill v. Borough of Kutztown, 455 F.3d 225, 235 n.12 (3d Cir. 2006) (finding
that “public employment is not a fundamental right entitled to substantive due
process protection.”). The court will therefore grant the motion on this point.
Plaintiffs’ only remaining substantive due process claim will be the claim related to
defendants’ interference with their use and enjoyment of the property here in
question.
iv. Counts IV and V
Defendants also seek dismissal of plaintiffs’ conspiracy claims in counts IV
and V. They argue that plaintiffs have not alleged any overt acts in furtherance of

33

the alleged conspiracies that occurred after December 21, 2008, and thus contend
that such claims are time-barred. In addition, plaintiffs do not allege a conspiracy to
interfere with the Correctional Care contract, but instead lay blame for that
interference on one defendant, Defendant Mercatili. Plaintiffs respond that they
have alleged conspiracy from the defendants to deprive them of their rights under
both state and federal law.
“To demonstrate a conspiracy under § 1983, a plaintiff must show that two or
more conspirators reached an agreement to deprive him or her of a constitutional
right ‘under color of law.’” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685,
700 (3d Cir. 19993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
(1970)). The court has concluded that plaintiffs have stated claims for First
Amendment Retaliation and substantive due process violations based on
defendants’ actions in sending men to plaintiffs’ property to harass and intimidate
them. The court has also determined that plaintiffs have stated a claim for a
substantive due process violation by alleging the first of these transgressions. Read
in the light most favorable to the plaintiffs, the court finds that plaintiffs have alleged
that all defendants were involved in efforts to harass and intimidate plaintiffs through
these actions. Plaintiffs describe in detail, as explained above, the means
defendants used to deprive them of their rights. They further allege that defendants
“conspired, by agreement, to deprive, interfere, suppress, harass, threaten,
intimidate, and potentially harm” plaintiffs. (Complt. at ¶ 127). As such, they have

34

alleged that two or more conspirators reached an agreement to deprive plaintiffs of
their constitutional rights, and the court will deny the motion on these grounds.
In Pennsylvania, “[t]he essential elements of a claim for civil conspiracy are as
follows: (1) a combination of two or more persons acting with a common purpose to
do an unlawful act or to do a lawful act by unlawful means or for an unlawful
purpose, (2) an overt act done in pursuance of the common purpose, and (3) actual
legal damage.” Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008). Thus,
“‘absent a civil cause of action for a particular act, there can be no cause of action
for civil conspiracy to commit that act.’” Id. (qouting McKeeman v. Corestates Bank,
N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000)). For the reasons described in the
reference to plaintiffs’ federal conspiracy claim, the court likewise finds that plaintiffs
have stated a claim for civil conspiracy by alleging that defendants acted with a
common purpose to deprive plaintiffs of their constitutional rights.
v. Count VI.
Defendants argue that plaintiffs’ adverse possession claim in Count VI of the
complaint should be dismissed. They contend that plaintiffs cannot prove the actual,
continuous, exclusive, visible, notorious, distinct and hostile possession for twentyone years required to exercise adverse possession under Pennsylvania law. The
property in question is the portion of Carey Lane described above, and defendants
argue that the complaint alleges only that plaintiffs have occupied this property since
1999, an insufficient period of time to gain adverse possession. Plaintiffs respond

35

that they have claimed adverse possession in their complaint, and have also sought
to quiet title pursuant to 36 P A. C ONS. S TAT. A NN § 1961.
In Pennsylvania, “[a]dverse possession is an extraordinary doctrine which
permits one to achieve ownership of another’s property by operation of law.”
Recreation Land Corp. v. Hartzfield, 947 A.2d 771, 774 (Pa. Super. Ct. 2008)
(quoting Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. Ct. 2001)). One who
claims title by adverse possession must prove actual, continuous, exclusive, visible,
notorious, distinct and hostile possession of the land for twenty-one years. Each of
these elements must exist; otherwise, the possession will not confer title.’” Id.
Defendants point out, and plaintiffs acknowledge, that plaintiffs have possessed the
property in question since 1994, less than the twenty-one years required to obtain
adverse possession. Plaintiffs insist, however, that the previous owner of the land
had adversely possessed the strip of land in question and conveyed this possession
to the them. (See Complt. at ¶ 28).
Under Pennsylvania law, “under certain circumstances, the periods of
possession of prior owners may be added on to the period of possession of the
present owners.” Baylor v. Soska, 658 a.2d 743, 744-45 (Pa. 1995). A party may
therefore convey an inchoate claim for adverse possession in a deed, but
Pennsylvania courts have determined that “the only method by which an adverse
possessor may convey the title asserted by adverse possession is to describe in the
instrument of conveyance by means minimally acceptable for conveyancing of realty

36

that which is intended to be conveyed.” Id. at 746.
The court will deny the defendants’ motion on this point. While plaintiffs’
complaint is somewhat contradictory and unclear in describing exactly what activities
of the previous owners constituted adverse possession and how they continued
them, the court concludes that plaintiffs, as described above, have alleged that they
and the previous owners combined for an actual, continuous, exclusive, visible,
notorious, distinct and hostile possession of the Cherry Lane land for twenty-one
years. The plaintiffs also allege that when they received title to their home “the
conveyance included the prior owners’ adverse possession of said portion of Cherry
Lane that runs along” their property line. (Complt. at ¶ 28). If plaintiffs can prove
these facts, they would be entitled to prevail on their adverse possession claim
under Pennsylvania law.
Defendants also appear to contend that plaintiffs have not made out a case on
their quiet title claim. Pennsylvania law provides that “[a]ny street, lane or alley, laid
out by any person or persons in any village or town plot or plan of lots, on lands
owned by such persons or persons in case the same has not been opened to, or
used by, the public for twenty-one years next after the laying out of the same, shall
be and have no force and effect and shall not be opened, without the consent of the
owner or owners of the land on which same has been, or shall be, laid out.” 36 P.S.
§ 1961. Thus, “[t]he public’s right to a portion of a subdivision reserved for a street is
effectively foreclosed where the municipality does not use or open the street within

37

twenty-one years after its dedication to the public.” Leininger v. Trapizona, 645 A.2d
437, 440 (Pa. Cmmw. Ct. 1994). “Where a municipality does not open the street
within the twenty-one year period set forth in Section 1961, the abutting lot owners
acquire the fee in the street to the center line.” Id. Here, plaintiffs have alleged that
the Borough laid out Cherry Lane, which abuts their property, in 1965 and has never
opened the street. Id. They have therefore stated a claim under Section 1961, and
the court will deny the motion on this point.
Conclusion
For the reasons stated above, the court will grant defendants’ motion in part
and deny the motion in part. An appropriate order follows.
.

38

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEANNE ZALOGA; and
EDWARD ZALOGA,
Plaintiffs

:
No. 3:10cv2604
:
:
(Judge Munley)
:
v.
:
:
BOROUGH OF MOOSIC;
:
MOOSIC BOROUGH COUNCIL;
:
MOOSIC PLANNING COMMISSION; :
MOOSIC BOROUGH ZONING BOARD :
OF ADJUSTMENTS;
:
JOSEPH MERCATILI;
:
JOSEPH DENTE;
:
THOMAS HARRISON;
:
BRYAN FAUVER; and
:
JAMES DURKIN,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 15th day of July 2011, the defendants’ motion to
dismiss the complaint (Doc. 2) is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. The motion is GRANTED with respect to Count I of the complaint;
2. The motion is GRANTED with respect to all claims which accrued before
December 21, 2008 in Counts II and III;
3. The motion is GRANTED with respect to plaintiffs’ claims for substantive
due process violations as they relate to defendants’ alleged interference with
39

Correctional Care’s contract with Lackawanna County in Count III of the
complaint; and
4. The motion is DENIED in all other respects.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT

40