Litwak v. Tomko et al

Filing 16

MEMORANDUM (Order to follow as separate docket entry) re 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Joseph Leskin, The Borough of St. Clair, William Dempsey, John Houseknecht, Michael Petrozino, James Larish, John Burke, Joann Brennan, Valeria Davis, Frank DeMarco, Richard E Tomko Signed by Honorable A. Richard Caputo on 1/17/17. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN R. LITWAK, JR. D/B/A JRL
EMERGENCY SERVICES,

CIVIL ACTION NO. 3:16-cv-00446

Plaintiff,

(JUDGE CAPUTO)

v.
RICHARD E. TOMKO, MAYOR OF THE
BOROUGH OF ST. CLAIR et. al,
Defendants.
MEMORANDUM
Presently before the Court is a Motion for Partial Dismissal (Doc. 11) of Plaintiff’s
Amended Complaint. Because the Court finds that Plaintiff’s Amended Complaint (Doc. 9)
fails to satisfy the pleading requirements of the Federal Rules of Civil Procedure, the Court
will order Plaintiff to file a repleaded Amended Complaint that comports with the Federal
Rules.
I. Background
The well-pleaded facts as set forth in Plaintiffs’ Amended Complaint (Doc. 9) are as
follows:
Plaintiff John R. Litwak, Jr. is a Pennsylvania resident who operates a towing,
storage, and repair station called JRL Emergency Services (“JRL”) in St. Clair, Shenandoah,
and Pottsville, Schuykill County, Pennsylvania. The Amended Complaint names as
Defendants: The Borough of St. Clair (the “Borough”); Richard Tomko, as the Mayor of the
Borough of St. Clair during all relevant times; James Larish, Micahel Petrozino, Joann
Brennan, John Burke, Valeria Davis, and John Houseknecht as members of the Borough
Council during all relevant times (Larish as Council President and Petrozino as Council Vice

President); and William Dempsey, Frank DeMarco, and Joseph Leskin as Borough Police
Officers at all relevant times.1
A.

Unlawful Seizure of Three Vehicles
Litwak first claims that the Defendants unlawfully seized his personal property on

three separate occasions. First, around February 18, 2016, Litwak’s 1999 Volkswagen Jetta
was towed from Litwak’s private property located in St. Clair by Trial Towing Company,
allegedly at the Borough’s request. The Jetta is titled in the name of Litwak’s business, JRL.
Second, on a prior unknown date, the St. Clair police seized a 1994 Chevrolet pickup truck
titled under one of Litwak’s businesses while it was parked on Litwak’s private property.
Litwak claims this truck is being held at B’s Garage in Pottsville, Pennsylvania, with towing
and storage bills amounting to over $90,000.00. Third, on another unknown date, the St.
Clair police seized another 1994 Chevrolet pickup owned by Litwak while it was parked on
property leased by Litwak in Gilberton, Pennsylvania. The current location of this vehicle is
unknown. Litwak claims that the Borough presently retains custody of both 1994 Chevrolet
pickups and refuses to return either of them. No search warrant or receipt for seized
property was issued, and no “legitimate reason” was given for the seizure of any of the three
vehicles.
B.

St. Clair Borough Zoning Appeal Dispute
Litwak owns parcels of land located in the Borough that are zoned in a C-2 General

Commercial District under St. Clair Zoning Ordinance 326 (the “Ordinance”). Section 5.202
of the Ordinance entitled “Uses Permitted By Right” states in relevant part:

1

Plaintiff’s Amended Complaint erroneously names Defendant Dempsey as a
Borough Councilman and fails to include Defendants DeMarco and Leskin under
the “Parties” section. However, the Court can conclude from the Caption and
other allegations in the Amended Complaint that Defendants Dempsey, DeMarco,
and Leskin are being sued as Borough Police Officers. (See, e.g., Am. Compl. ¶¶
15, 22, 65, 67, 71-73.)
2

Land and buildings in a C-2 District may be used for the
following purposes and no others:
1.

Retail and wholesale of goods, prepared foods, and
services.

19.

Motor vehicle service station, subject to:
(a)
(b)

20.

All automobile parts, dismantled vehicles and
similar articles shall be stored within a building.
All repair activities shall be carried out within a
building.

Repair garage, subject to:
(a)

All repair activities shall be performed within a
building.

(b)

All outdoor storage of dismantled vehicles,
automobile parts, and similar items shall be
screened from view in such a manner that the
outdoor storage of materials is not visible from
adjoining properties or public streets. 2

On June 20, 1996, a Borough zoning officer issued Litwak a zoning permit which certified
the repair garage Litwak sought to open was a use in compliance with the Ordinance. Days
later, the Borough revoked the June 20, 1996 permit. On April 28, 1997, Litwak applied for
a zoning variance or declaration that his proposed activities were “permitted uses” under
the Ordinance. On April 29, 1997, Litwak and his wife, Francis Litwak, filed an Application
with the Borough Zoning Hearing Board (“Zoning Board”) seeking a determination that the
sale, service, and repair of used automobiles on his parcels of land in a C-2 zoning district
was a permitted use as of right under Section 5.202. The Zoning Board did not hold a
hearing on the Application within sixty (60) days of its filing. Under the Pennsylvania
Municipalities Planning Code, 53 P.S. § 10908(1.2), “[t]he first hearing before the [zoning]
board or hearing officer shall be commenced within 60 days from the date of receipt of the

2

The Amended Complaint notes that Ordinance 328 took effect in February 2005.
(Am. Compl. ¶ 49.) This new ordinance maintained the identical definitions for
the relevant uses permitted by right in a C-2 General Commercial District. (See
Am. Compl. Ex. 11, at 306(B)(5)(a), (s), (t).)
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applicant's application, unless the applicant has agreed in writing to an extension of time.”
Furthermore, § 10908(9) states:
Where the board fails to . . . commence, conduct or complete
the required hearing as provided in subsection (1.2), the decision
shall be deemed to have been rendered in favor of the applicant
unless the applicant has agreed in writing or on the record to an
extension of time. When a decision has been rendered in favor
of the applicant because of the failure of the board to meet or
render a decision as hereinabove provided, the board shall give
public notice of said decision within ten days from the last day it
could have met to render a decision in the same manner as
provided in subsection (1) of this section. If the board shall fail
to provide such notice, the applicant may do so. Nothing in this
subsection shall prejudice the right of any party opposing the
application to appeal the decision to a court of competent
jurisdiction.
On September 2, 1997, Litwak published a Notice in the Pottsville Republican Herald
Newspaper that stated because “[t]he Board did not hold a hearing on the Variance
Application within sixty (60) days of the Filing Date. . . a decision granting the Relief is thus
deemed to have been rendered in favor of the Applicants.” The Borough subsequently filed
an appeal of the decision on September 22, 1997. On April 21, 1998, the entire record from
the Zoning Board regarding this matter was filed with the Schuylkill County Prothonotary.
In August of 2000, the Prothonotary sought to have the case purged for lack of docket
activity. In response, the Borough filed a motion to remove the zoning case from the purge
list together with a certificate of service. The Borough’s motion was granted on November
11, 2000. The only other docket entries from April 21, 1998 to October 28, 2015 were made
on September 5, 2003, August 8, 2006, September 11, 2012, and September 28, 2015.
These entries were all Statements of Intention to Proceed with the appeal and a concurrent
certificate of service filed by the Borough.
Around October 28, 2015, Litwak filed a motion to dismiss with prejudice the
Borough’s eighteen-year-old zoning appeal. The Schuylkill County Court of Common Pleas
scheduled a hearing on Litwak’s motion for December 16, 2015. On December 3, 2015, the
Borough withdrew its appeal. The Borough has not issued a zoning permit to Litwak after
it withdrew its zoning appeal. While the Borough’s appeal was pending, other individuals
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located within the C-2 zoning district were granted zoning permits by the Borough.
Specifically, Tom’s Auto Sales was granted a zoning permit for a used car lot in 1999 for
property in a C-2 zoning district that is less than one-quarter mile from Litwak’s location.
Additionally, 21st Street Motors was granted a zoning permit for a used car lot in 1979 for
a location in a C-2 zoning district that is three blocks from Litwak’s location.
C.

Litwak’s Towing Business
In 1989, Litwak began operating JRL, a towing service and related business, along

Route 61 with a principal place of business at 148 North 3rd Street, St. Clair, Pennsylvania.
From 1989 to the present, Litwak regularly received requests to tow vehicles from private
motorists, members of the Pennsylvania State Police, and members of the police from
surrounding communities. Since opening JRL, Litwak has made requests to the Borough
Council, as well as to federal and state government officials, asking the Borough to be
advised to utilize his towing services to no avail. From 1994 to the present, Litwak claims
his towing business possessed the capabilities necessary to conduct vehicle towing
operations for situations requiring emergency and non-emergency towing services, accident
clean up, and accident remediation services within and outside of the Borough.
Beginning in 1997, Litwak would attend the Borough Council meetings and attempt
to discuss the problems he was having regarding his zoning problems and towing
operations. In addition to the seizure of his three vehicles and ongoing zoning dispute noted
above, Litwak claims the Borough blacklisted him from towing jobs. Litwak petitioned the
Borough at least forty (40) times regarding the blacklisting of JRL and his zoning dispute.
Despite JRL’s location right next to Route 61 in the Borough of St. Clair, Litwak claims
Defendants Officers Dempsey, DeMarco, and Leskin refused to call his towing service when
an accident occurred within the Borough along Route 61. Litwak specifically claims the
Defendant Police Officers would exclusively call Trail Towing instead of JRL, despite the
fact that Trail Towing would sometimes take over an hour to arrive on the scene and travel
over weight-limited and restricted roadways with vehicles weighing in excess of the limit.
5

Despite this alleged Borough policy or custom to exclusively use Trail Towing, Litwak
notes that the Borough Police used JRL for towing services twice. In the Summer of 2013,
Litwak complained to then-Mayor Robert Maley that the Borough Police would not use his
towing services. Maley wrote a letter to Defendant Officer Dempsey, the Acting Chief of
Police, dated September 20, 2013, which states in relevant part: “Effective September 20,
2013, JRL . . . will be utilized as the towing service for the St. Clair police department. JRL
will provide services for towing, abandoned vehicles, accidents, etc.” (Am. Compl. Ex. 12.)
During the two towing jobs Litwak performed for the Borough Police, Litwak arrived to the
scene within fifteen minutes of being called, whereas it would take Trail Towing
approximately forty-five minutes to respond to any accident that occurred in near proximity
to the Borough. Despite this response time, Defendant Police Chief Dempsey told Litwak
he had a poor response time, was incompetent, and distracted motorists by leaving his
emergency lights activated while at the scene of the accident.
On December 24, 2013, Litwak filed a Right-to-Know request with the Borough, in
which he requested “all Police Reports and assistance including time, date, officer, and tow
companies with the rate sheets for tow’s removal, accident and abandoned vehicles both
in St. Clair Borough limits and Route 61 from June 1, 2013 to December 1, 2013, the
current tow list from June 1, 2013 to Dec. 1, 2013.” (Am. Compl. ¶ 85.) The Borough denied
Litwak’s request on January 29, 2014, claiming the records sought were related to a criminal
investigation, which are exempt from disclosure under Pennsylvania law. Litwak filed an
appeal to the Pennsylvania Office of Open Records. On March 14, 2014, the Office of Open
Records issued a final determination which held: “The Borough of St. Clair is required to
provide all responsive records, with the exception of records alleged to be protected under
Title 65 P.S. 67.708(b)(16) and accident reports submitted to the Department by the
Borough, to [Litwak] within thirty (30) days.” (Id. ¶ 88.) The Borough filed an appeal of this
final determination in the Schuylkill County Court of Common Pleas. At the appeal hearing
before the Court of Common Pleas, Judge Miller agreed that the Borough had no list of
towing companies and had no obligation to provide such records.
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II. Discussion
Litwak filed his Amended Complaint on June 22, 2016. (Doc. 9.) The Amended
Complaint raises five counts,3 but each count contains more than one claim for relief.
(See, e.g., Am. Compl. First Claim for Relief ¶¶ 94-96.) The counts do not clearly define
or distinguish what claims are being alleged, instead employing an “everything-but-thekitchen-sink” approach to the requests for relief. See Magluta v. Samples, 256 F.3d
1282, 1284 (11th Cir. 2001). As Litwak is represented by counsel, the Court need not
liberally construe his Amended Complaint. See Ostrowski v. D’Andrea, No. 3:14-cv00429, 2015 WL 10434888, at *3 (M.D. Pa. Aug. 11, 2015). The Court finds Litwak’s
Amended Complaint fails to satisfy Federal Rule of Civil Procedure 10(b), which, when
clarity is at issue, requires “each claim founded on a separate transaction or occurrence
. . . [to] be stated in a separate count. . . .” See Magluta, 256 F.3d at 1284 (“This type of
pleading completely disregards Rule 10(b)'s requirement that discrete claims should be
plead in separate counts.”). Most notably, the “First Claim for Relief” claims that the
revocation of Litwak’s zoning permit violated his property rights, due process rights, and
equal protection rights, while concurrently claiming that the alleged vehicle seizures–a
wholly separate event–also violated his property rights, due process rights, and equal
protection rights. (Am. Compl. ¶¶ 95-96.) Moreover, in that same claim for relief, Litwak
also states that the government interfered with his property interest in his “vocation,” (id.
¶ 94), but it is unclear if this is a separate due process claim or whether that property
interest is the same interest allegedly deprived in paragraph 95. Additionally, no
distinction is made between substantive and procedural due process in any count. Also
confusingly, Counts Three and Four contain an express Wherefore Clause requesting
relief, but the other three counts do not. Furtherm ore, it is entirely unclear what legal
basis for relief is being asserted in Count Four, as it could be construed as an attem pt to
3

The Amended Complaint uses the term “Claim For Relief” instead of “Count.”
Because each “claim” actually contains multiple claims and requests for relief, in
the interest of clarity the Court will refer to them as “counts.”
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allege a takings claim, or possibly a redundant claim for unlawful seizure of property
and/or a due process violation, or a state-law tort theory of relief, or a request for an
affirmative injunction despite no stated irreparable injury.
The Amended Complaint also runs afoul of Rule 8(a). It is 123 paragraphs long
and can be construed as naming all twelve Defendants in each count. See Banks v. U.S.
Marshals Serv., No. 15-127, 2016 WL 1393398, at *10 (W.D. Pa. Feb. 24, 2016). The
Amended Complaint also fails to even attempt to allege whether the officials are being
sued in their individual or official capacities. Each count incorporates by reference a
ninety-one paragraph introductory section of the Amended Complaint entitled “Facts of
the Case,” while also incorporating the allegations of any count that precedes it. Each
count is therefore “replete with factual allegations that could not possibly be material to
that specific count.” Magluta, 256 F.3d at 1284; see Washington v. Wadren SCI-Greene,
608 Fed. Appx. 49, 51-52 (3d Cir. 2015) (affirming district court’s dismissal of pro se
plaintiff’s amended complaint for violating Rule 8).
However, the Court will not dismiss Litwak’s Amended Complaint despite these
deficiencies, but will instead order Litwak to replead with more specificity. “Rule 12(e)
implicitly authorizes courts to order plaintiffs to amend their complaints.” Nicolaysen v.
BP Amoco Chem. Co., No. CIV.A.01-CV-5465, 2002 W L 1060587, at *3 (E.D. Pa. May
23, 2002); see Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 367
n.5 (11th Cir. 1996); see also Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 (11th
Cir. 2014) (quoting Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 984 (11th
Cir. 2008) (“In light of defense counsel's failure to request a repleader, the court, acting
sua sponte, should have struck the plaintiff's complaint, and the defendants' answer,
and instructed plaintiff's counsel to file a more definite statement.”)); Prayor v. Fulton
Cty., No. 1:08-cv-3772-WSD, 2009 WL 981996, at *5 (N.D. Ga. Apr. 13, 2009) (“The
Court has an obligation to intervene sua sponte to address a shotgun pleading or

8

shotgun answer, for failure to do so risks inefficient management of the Court's docket
and effectively obstructs justice by wasting the time of the Court and litigants.”).
Accordingly, the Court will order Litwak to file a repleaded Amended Complaint.
Although the length and repetitiveness of the instant Amended Complaint does not
comport with the concept of a “short and plain statement showing that the pleader is
entitled to relief,” the fatal flaws with the present Amended Complaint stem from the lack
of precision in the “Five Claims for Relief.” (Am. Compl. ¶¶ 92-123.) Therefore, the
repleaded Amended Complaint must list each discrete cause of action in a separate
count, and identify with specificity the factual allegations used to support each discrete
claim against each individual Defendant(s). Litwak is encouraged to label each Count in
a manner that identifies the cause of action asserted therein, instead of employing a
generic heading of “First Claim for Relief,” etc. In being ordered to replead under Rule
12(e), Litwak is not being granted leave to amend his complaint under Federal Rule of
Civil Procedure 15(a)(2), and therefore cannot add new claims and/or parties which are
not apparent from the allegations in the instant Amended Complaint. Betts v. Conecuh
Cty. Bd. of Educ., No. 13-0356-CG-N, 2014 WL 7411670, at *13 (S.D. Ala. Dec. 30,
2014).
An appropriate order follows.

January 17, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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