Hartpence v. Madison Township et al

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re 4 MOTION to Dismiss filed by Madison Township Supervisors, Madison Township, Charles Frey, Philip Setzer, Andy Nazarenko, Howard Stevens, 2 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Building Inspection Underwriters of Pennsylvania, Inc., James Damski Signed by Honorable Malachy E Mannion on 2/24/14. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LARRY HARTPENCE, owner of
Hartpence Farms,

:
:

Plaintiff

CIVIL ACTION NO. 3:13-0626
:

v.
:

(JUDGE MANNION)

MADISON TOWNSHIP, et al.,
:
Defendants
MEMORANDUM
Pending before the court is a motion to dismiss the plaintiff’s complaint
filed on behalf of defendants James Damski and Building Underwriters of
Pennsylvania, Inc., (Doc. No. 2), and a motion to dismiss the plaintiff’s
complaint filed on behalf of defendants Madison Township, Madison
Township Supervisors, Andy Nazarenko, Charles Frey, Philip Setzer and
Howard Stevens, (Doc. No. 4). Based upon the court’s review of the motions
and related materials, the motions will be granted.
By way of relevant background, on July 23, 2012, the plaintiff filed the
instant action in the Court of Common Pleas of Lackawanna County. An
amended complaint was filed on February 11, 2013. On March 8, 2013, the
defendants removed the action to this court on the basis that the plaintiff’s
amended complaint alleges violations of the Fourth and Fourteenth
Amendments pursuant to 42 U.S.C. §1983. (Doc. No. 1).
On March 15, 2013, a motion to dismiss the plaintiff’s amended
complaint was filed on behalf of defendants James Damski and Building

Underwriters of Pennsylvania, Inc. (Doc. No. 2). A brief in support of the
motion was filed on March 29, 2013. (Doc. No. 9). On April 22, 2013, the
plaintiff filed a brief in opposition to the motion to dismiss. (Doc. No. 15). A
reply brief was filed on May 6, 2013. (Doc. No. 17).
In the meantime, a motion to dismiss the plaintiff’s amended complaint
was also filed on March 15, 2013, on behalf of defendants Madison Township,
Madison Township Supervisors, Andy Nazarenko, Charles Frey, Philip Setzer
and Howard Stevens. (Doc. No. 4). A brief in support of the motion was filed
on March 29, 2013. (Doc. No. 10). On April 22, 2013, the plaintiff filed a brief
in opposition to this second motion to dismiss. (Doc. No. 16). A reply brief was
filed on May 6, 2013. (Doc. No. 18).
The defendants’ motions to dismiss are brought pursuant to the
provisions of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a
complaint, in whole or in part, if the plaintiff fails to state a claim upon which
relief can be granted. The moving party bears the burden of showing that no
claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005), and dismissal is appropriate only if, accepting all of the facts alleged
in the complaint as true, the plaintiff has failed to plead “enough facts to state
a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts”
language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts
alleged must be sufficient to “raise a right to relief above the speculative
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level.” Twombly, 550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for
enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of” necessary elements of the plaintiff’s cause of action. Id.
Furthermore, in order to satisfy federal pleading requirements, the plaintiff
must “provide the grounds of his entitlement to relief,” which “requires more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly,
550 U.S. 544, 127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
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Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
The following allegations are taken from the plaintiff’s complaint and are
taken as true for purposes of the instant motions to dismiss. The plaintiff owns
property in Madison Township, Lackawanna County, Pennsylvania. In
January of 2008, the plaintiff filed an Application for Code Exempt Building
Permit with the Township for a building he intended to construct on his
property. Pursuant to Township Ordinance 2004-1, the plaintiff was required
to file the application despite its apparent contradiction with Section 104(b)(4)
of the Pennsylvania Construction Code Act, 35 P.S. §7210.104(b)(4)1.
Upon receiving the application, defendant Howard Stevens, Madison
Township Permit Officer, provided the plaintiff a handwritten document which
he referred to as an affidavit and demanded that it be formalized and
executed by the plaintiff prior to an Agricultural Exemption being granted. The
document required that the plaintiff allow Township representatives to inspect

1

Title 35 P.S. §7210.104(b)(4) provides that the Construction Code Act
shall not apply to any agricultural building.
4

the property without notice. Ultimately, the plaintiff’s application was denied
and signed by defendant Stevens.
Prior to the plaintiff’s review and execution of the affidavit, an order to
show cause dated January 16, 2008, was issued to the plaintiff demanding
that he show cause in writing, within 30 days, why his building should not be
closed or vacated for violations of the Uniform Construction Code, (“UCC”).
During a Supervisors meeting held on an undisclosed date, the solicitor
from Madison Township openly declared that the Township would not rest
until the plaintiff’s barn was torn down to the ground.
On February 12, 2008, the plaintiff provided a written answer to the
order to show cause declaring that the building was used exclusively for
agricultural purposes and as such was exempt under the UCC. In response,
defendant James Damski, Madison Township Building Code Official, claimed,
without explanation, that the plaintiff’s response to the show cause order was
not sufficient, that the building was not exempt under the UCC, and an order
to vacate would be issued. An order to vacate issued on February 27, 2008.
On or about March 11, 2008, H. Clark Connor, Solicitor to the Township,
“indicated in correspondence to [the plaintiff] that, contrary to the original
denial by Howard Stevens, the determination had been made that the building
was not exempt and that [the plaintiff] should take an appeal, however, the

5

appeal period had already run.2” (Amended Complaint, ¶19).
On March 20, 2008, a complaint was filed against the plaintiff before
Pennsylvania District Magisterial Judge John Mercuri for his failure to obtain
a permit. The plaintiff was initially convicted3; however, the conviction was
later overturned by the Superior Court in Commonwealth v. Hartpence,
Docket No. 1143 MDA 2009. In overturning the plaintiff’s conviction, the

2

Upon review of the March 11, 2008, correspondence, which is attached
as an exhibit to the plaintiff’s amended complaint, Mr. Connor clarified that
Madison Township Building Permit Ordinance, Ordinance 2001-1, remained
in full force and effect and that Section III-A of the ordinance mandates that
the construction of any building or structure may not be undertaken until a
building permit is issued by the Township. (Doc. No. 1, Amended Complaint,
Ex. G). Mr. Connor indicated that there is no exemption in the ordinance
regarding the construction of buildings involved in agricultural businesses, and
that the plaintiff was in violation of the ordinance as a result of beginning
construction of the building without a permit.
Mr. Connor indicated that there was an exemption contained in the
building code regarding the construction of buildings dedicated to agricultural
uses; however, in response to the building permit application that the plaintiff
had filed after he started construction of the building, Mr. Connor noted that
Township officials determined that the building did not qualify for the
exemption, and that the construction of the building was subject to the
provisions of the state building code. Consequently, Mr. Connor noted that the
plaintiff’s application was denied and a stop work order issued.
Mr. Connor informed the plaintiff of his right to appeal the denial of the
permit by requesting, in writing, a hearing before the Madison Township
Building Hearing Board of Appeals.
3

The Court of Common Pleas docket reflects that the plaintiff was found
guilty of building without a permit both at the lower court level and after a
summary appeal trial. See Commonwealth v. Hartpence, CP-35-SA-00000882008.
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Superior Court stated:
We conclude that the trial court committed an error of law in
finding Hartpence in violation of 34 Pa.Code §403.42, as the
purpose for which the building was intended, i.e. the storage of
hay, sawgrass and shredded paper products for animal bedding,
falls under the agricultural exception contained in section
403.42(c).
A copy of the Superior Court decision was provided to the Township
Solicitor on November 21, 2011. In addition, a request was made that the
application for the building subject to the decision and another application for
exemption on another building similarly situated on the plaintiff’s property both
be granted. Notwithstanding the decision of the Superior Court, the Township
refused to approve the plaintiff’s applications.
Plaintiff also alleges that defendants’ refusal to grant the plaintiff’s
exemptions is in marked contrast to their treatment of other similar residents
during this time frame. Prior to the refusal of the Township to grant the
plaintiff’s exemption, it had on at least two occasions granted exemptions to
Township residents without the support of affidavits. Additionally, exemptions
were provided to at least six Township residents after an affidavit was
provided to the Township. These affidavits were substantially different than
the one the Township would have required of the plaintiff and did not require
that the property owners allow unannounced inspection of their properties.
Many of the individuals who received exemptions did not provide the
Township with an application as was required of the plaintiff.

7

Based upon the foregoing allegations, the plaintiff brings a state law
claim of malicious prosecution against the individual defendants Howard
Stevens, Charles Frey, Andy Nazarenko, Philip Setzer, and James Damski,
as well as against defendant Building Inspection Underwriters of
Pennsylvania, Inc., (“Count I”). The plaintiff also brings a §1983 Fourteenth
Amendment claim against the individual defendants Howard Stevens, Charles
Frey, Andy Nazarenko, Philip Setzer and James Damski, as well as against
defendant Building Inspection Underwriters of Pennsylvania, Inc., (“Count II”).
Finally, the plaintiff brings §1983 Fourth and Fourteenth Amendment claims
against the defendant Madison Township, (“Count III”).
In light of the allegations set forth in his complaint, the plaintiff is
seeking damages in the form of lost profits for the entire duration plaintiff’s
use was deprived by defendants’ actions, as well as punitive damages.
In their motion to dismiss the plaintiff’s amended complaint, defendants
Damski and Building Inspection Underwriters of Pennsylvania, Inc., argue that
Count I fails to state a cause of action for malicious prosecution given that the
plaintiff was convicted of the violations of the Pennsylvania Construction Code
Act, 35 P.S. §7210.101, et seq.
To state a claim for malicious prosecution under Pennsylvania law4, a

4

Although plaintiff argues in his opposing brief that his conviction does
not conclusively establish probable cause in a §1983 action, this is not the
cause of action which he has alleged in his amended complaint. Although the
(continued...)
8

plaintiff must allege that: (1) the defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in plaintiff’s favor; (3) the proceeding was
initiated without probable cause; and (4) the defendants acted maliciously or
for a purpose other than bringing the plaintiff to justice. Zlomsowitch v. E.
Penn Twp., 2012 WL 1569633 (M.D. Pa. May 3, 2012) (citing Kelly v. Gen’l
Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (Pa. 1988)).
Generally, “[t]he conviction of the accused by a magistrate or trial court,
although reversed by an appellate tribunal, conclusively establishes the
existence of probable cause, unless the conviction was obtained by fraud,
perjury or other corrupt means.” Id. (citing Restatement (Second) of Torts
§667 (1977); McGriff v. Vidovich, 699 A.2d 797, 800 (Pa.Commw.Ct.1997)
(“[U]nder the present state of Pennsylvania law, probable cause is
conclusively established to exist at the time the arrest was made when there
is a guilty plea or conviction.”). See also Becker v. Godboldte, 2011 WL
2015213 (M.D. Pa. May 24, 2011) (“a conviction, upon examination by a
judicial officer, conclusively establishes the existence of probable cause,
regardless of whether the conviction is subsequently reversed on appeal.”)
4

(...continued)
plaintiff specifically cites §1983 in Counts II and III of his complaint, he does
not do so in Count I. In fact, in Count I, the plaintiff specifically cites to
Pennsylvania state law. Moreover, the elements alleged in the amended
complaint are consistent with that of a Pennsylvania state law malicious
prosecution claim, not a §1983 claim. Therefore, the court does not construe
the plaintiff’s complaint as alleging a malicious prosecution claim pursuant to
§1983.
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(citations omitted). The plaintiff in the instant action does not allege that his
conviction was obtained by fraud, perjury or corruption; therefore, the
conviction establishes the existence of probable cause for the purpose of
making a claim for malicious prosecution under Pennsylvania law. As such,
the motion to dismiss Count I of the plaintiff’s amended complaint filed on
behalf of defendants Damski and Building Inspection Underwriters of
Pennsylvania, Inc., will be granted.
These defendants next argue that Count II of the plaintiff’s amended
complaint fails to state a violation of §1983 in that the events described
therein occurred more than two years prior to the filing of the complaint.
Section 1983 claims are governed by the relevant state’s statute of
limitations for personal injury actions. See Hall v. City of Philadelphia, 828
F.Supp. 365 (E.D.Pa.1993) (citing Wilson v. Garcia, 471 U.S. 261, 280, 105
S.Ct. 1938, 85 L.Ed.2d 254(1985)); see also Kirk v. Varano, 2013 WL
2285235

(M.D.Pa.

May

23,

2013)

(non-precedential).

Therefore,

Pennsylvania’s two-year statute of limitations for personal injury claims is
applied here. See Hall, 828 F.Supp. at 367(citing 42 Pa.C.S.A. §5524(2)).
When state law controls the period of limitations, federal law determines when
a cause of action accrues and the statute begins to run. See Bougher v. Univ.
of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989) (citing Antonioli v. Lehigh Coal
and Navigation Company, 451 F.2d 1171, 1175 (3d Cir. 1971) cert. denied,
406 U.S. 906, 92 S.Ct. 1608, 31 L.Ed.2d 816 (1972)). Under federal law, a
10

cause of action accrues, and the statute of limitations begins to run, upon
awareness of actual injury, not upon awareness that this injury constitutes a
legal wrong. See Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 287
(3d Cir. 2003) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380 (3d Cir. 1994); Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982),
abrogated on other grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179, 117
S.Ct. 1984, 138 L.Ed.2d 373 (1997). An individual must either actually be
aware of the existence and source of the injury, or merely should have been
aware of the injury. See Oshiver, 38 F.3d at 1386.
Here, the plaintiff alleges in Count II that the defendants violated his
Fourteenth Amendment rights “. . . in their rejection of the Plaintiff’s
application and in their initiation of the criminal charges against Plaintiff . . .”
These incidents occurred in 2008 and 2009. The plaintiff filed his initial
complaint on July 23, 2012, well outside of the two-year statute of limitations.
Therefore, the court finds that Count II of the plaintiff’s amended complaint is
barred by the applicable statute of limitations and the defendants’ motion to
dismiss Count II will be granted on this basis.
With respect to the second motion to dismiss, defendants Howard
Stevens, Charles Frey, Andy Nazarenko and Philip Setzer also argue that
Count I of the plaintiff’s complaint should be dismissed on the basis that the
plaintiff’s convictions establish probable cause which defeats his claim of
malicious prosecution even if the convictions were later overturned. For the
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reasons set forth above, the foregoing defendants’ motion to dismiss will be
granted as to this claim.
The foregoing individual defendants, as well as defendant Madison
Township, also argue that the plaintiff’s §1983 claims are barred by the
applicable statute of limitations. Again, for the reasons set forth above, the
court finds that the plaintiff’s §1983 claims are barred by the applicable statute
of limitations. As such, Count II of the plaintiff’s complaint will also be
dismissed as to defendants Howard Stevens, Charles Frey, Andy Nazarenko
and Philip Setzer, and Count III of the plaintiff’s amended complaint will be
dismissed as to Madison Township.
Considering the above, the plaintiff’s amended complaint will be
dismissed in its entirety. Moreover, because the court finds that any
amendment would be futile, such dismissal will be with prejudice.
On the basis of the foregoing, an appropriate order shall issue5.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 24, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2013 MEMORANDA\13-0626-01.wpd

5

The court notes that the moving defendants raise additional arguments
for the dismissal of the claims set forth in the plaintiff’s amended complaint.
Because the court finds the above sufficient to dispose of the claims raised
in the plaintiff’s amended complaint, the additional arguments need not be
addressed herein.
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