Pompey Coal Company v. Borough Of Jessup et al

Filing 32

MEMORANDUM (Order to follow as separate docket entry) re 17 MOTION to Dismiss filed by Peter Larioni, Roberta Galati, Kevin M. Gordon, Gerald J. Crinella, Gregg Betti, Joseph M. Mellado, Borough Of Jessup. The motion to dismiss will be granted, and the plaintiffs federal civil rights claims will be dismissed with leave to amend.An appropriate order follows. Signed by Magistrate Judge Joseph F. Saporito, Jr on 3/31/21. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
POMPEY COAL COMPANY,
Plaintiff,

CIVIL ACTION NO. 3:20-cv-00358

v.

(SAPORITO, M.J.)

BOROUGH OF JESSUP, et al.,
Defendants.
MEMORANDUM
This is a federal civil rights action concerning the adoption and
application of a local land use ordinance. It was originally commenced in
state court by the filing of a writ of summons on April 24, 2019. (Doc. 2.)
The action was removed to federal court by the defendants on February
28, 2020. (Doc. 1.)
The plaintiff, Pompey Coal Company (“Pompey Coal”), seeks
damages and declaratory relief against the Borough of Jessup (the
“Borough”) and seven current or former members of its Borough Council,
each of whom is named as a defendant in both his or her personal and
official capacities. In its amended complaint (Doc. 10), Pompey Coal
claims that the defendants adopted a land use ordinance, Ordinance 3 of
2019 (“Ordinance 3”), and re-zoned its property in an unconstitutional

and tortious manner.
The defendants, appearing jointly through counsel, have moved to
dismiss the plaintiff’s amended complaint. (Doc. 17.) That motion is fully
briefed and ripe for decision. (Doc. 18; Doc. 25; Doc. 31.) For the reasons
stated below, the motion will be granted and the amended complaint will
be dismissed, but with leave to amend.
I.

FACTUAL BACKGROUND
The Borough of Jessup is an incorporated borough located in

Lackawanna County, Pennsylvania. It is governed by a seven-member
borough council, along with an elected mayor. The Borough consists of
6.75 square miles of established residential, commercial, and industrial
zones, with development governed by a comprehensive plan for
development adopted in 1995. 1
Pompey Coal is a Pennsylvania business corporation that owns
land within the Borough that was zoned “M-1A,” a designation that
permitted manufacturing and other industrial use. William “Billy”
Rinaldi is Pompey Coal’s president.

It is our understanding that a new comprehensive plan has since
been adopted. This dispute arises out of re-zoning decisions made prior
to adoption of the superseding comprehensive plan.
1

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On April 13, 2016, Pompey Coal sold 65.35 acres of land it owned
within the Borough’s M-1A manufacturing zone to Lackawanna Energy,
LLC (“Lackawanna Energy”), which subsequently constructed an
electrical power plant on that property. The defendants were allegedly
outraged by this sale.
Pompey Coal owns an additional 198 acres of land within the
Borough’s M-1A business park. In the spring of 2018, Pompey Coal began
negotiations with Northpoint Development, LLC (“Northpoint”) for
potential sale of its remaining property within the Borough. Northpoint
was interested in developing the land into a distribution center based on
its close proximity to railroad, highway, and air transportation.
In the late spring or early summer of 2018, Borough Council
president Gerald Crinella allegedly told members of the Borough Council
and members of the public that “Billy Rinaldi has enough money,” and
that the Borough needed to change the zoning ordinance to stop Pompey
Coal from selling its land to other unpopular industrial businesses. At
the same time, the defendants were engaged in negotiations to provide
tax incentives to assist the Trammell Crow Company (“Trammell Crow”)
in its purchase of 92 acres of commercial land space within the Borough’s

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M-1A business park to create the Valley View Trade Center.
In July 2018, the defendants began to consider re-zoning and remapping parts of the M-1A business park, including the remaining land
owned by Pompey Coal. These initial discussions were allegedly “outside
the public purview.”
On July 31, 2018, the Borough entered into a contract with the
Urban Research and Development Corporation (“URDC”) to prepare a
new comprehensive plan and zoning ordinance for the Borough. The
contract with URDC established a 16-month period for development of
this new comprehensive plan and zoning ordinance, including public
meetings, county review, drafting, and workshops prior to presentment
of the draft comprehensive plan and zoning ordinance.
Notwithstanding this contractual timeline, the plaintiff alleges that
URDC was directed by the seven individual defendants, without
legislative authority from the Borough Council, to produce a draft zoning
ordinance and map. This draft zoning ordinance and map, which was
later adopted as Ordinance No. 3, proposed to rezone Pompey Coal’s
property from its existing M-1A industrial zoning classification to an “R2” residential zoning classification and an “IAC” interchange activity

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center zoning classification.2 This proposed change in zoning of the
Pompey Coal property would effectively block any sale to Northpoint, and
the defendants allegedly knew and intended as much. URDC produced
the draft zoning ordinance and map to the Borough August 9, 2018—nine
days after the Borough and URDC entered into the contract providing for
a 16-month process to produce an updated comprehensive plan and
zoning ordinance for the Borough. Four days later, on August 13, 2018,
the defendants forwarded the draft zoning ordinance and map to the
Lackawanna County planning commission for review; it was also
submitted to the Borough’s own planning commission for review.
On August 22, 2018, without any input from Pompey Coal, owner
of the affected property, the Borough planning commission “approved”
the draft zoning ordinance and map. 3 Subsequently, on August 27, 2018,

The proposed rezoning also affected the property previously
conveyed from Pompey Coal to Lackawanna Energy.
3 The nature and significance of this “approval” by the Borough
planning commission is not entirely clear from allegations of the
amended complaint. As with the plaintiff’s characterization of the county
planning commission’s evaluation of this same draft zoning ordinance
and map as a “rejection” of the proposal, see infra note 4, this “approval”
of it might be more accurately characterized as a recommendation that
the draft zoning ordinance and map be approved subsequently by the
Borough Council. See 53 P.S. § 10609(c).
2

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the county planning commission provided its evaluation of the proposed
amendment to the Borough’s zoning ordinance and map, advising that
the proposed changes were inconsistent with the Borough’s existing
comprehensive plan, which designated the land for manufacturing use.
The county planning commission further advised that the rezoning of the
affected property might be premature in light of the comprehensive plan
update process the Borough had recently undertaken, and that the
rezoning might be challengeable in court.4
On August 30, 2018, the Borough solicitor wrote to Pompey Coal to
inform it that a public hearing on the proposed zoning change would be
held on October 1, 2018. On September 5, 2018, an attorney representing
Pompey Coal wrote to notify the Borough solicitor that it objected to any
change in zoning that would impact Pompey Coal’s property. In
particular, Pompey Coal’s letter noted that a change from a M-1A

In its amended complaint, the plaintiff characterizes the county
planning commission’s evaluation as “rejection” of the draft zoning
ordinance and map, but the attached exhibit referenced in support of this
allegation is an “evaluation report” by the county planning commission
that provides only “comments” on the proposed zoning ordinance
amendment. Moreover, the applicable state statute expressly provides
that a proposed municipal zoning ordinance amendment be submitted to
the county planning agency for its review and recommendations, not its
approval or rejection. See 53 P.S. § 10609(e).
4

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classification to R-2 and IAC classification would impose a severe and
substantial financial impact on the development of the property. The
letter suggested that the zoning change would constitute a deprivation of
property, a regulatory taking for which just compensation was required,
and impermissible “spot zoning.” On September 26, 2018, an attorney
representing Lackawanna Energy likewise objected to the proposed
amendment to the Borough zoning ordinance and map. According to the
amended complaint, no hearing was held on October 1, 2018.
On October 1, 2018, Northpoint agreed to purchase approximately
183 acres of Pompey Coal’s M-1A-zoned land within the Borough for $3.5
million. Pompey Coal and Northpoint agreed to a sixty-day due diligence
period prior to signing a full agreement of sale.
On March 25, 2019, the Borough Council held a hearing on the draft
amendments to the Borough zoning ordinance and map, at which Pompey
Coal appeared and raised objections to the amendment. Prior to the
hearing, a notice of hearing was published in the March 11, 2019, and
March 18, 2019, editions of The Scranton Times, a newspaper of general
circulation.
On April 10, 2019, the Borough Council adopted Ordinance No. 3,

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amending the Borough’s zoning ordinance and map, re-zoning Pompey
Coal’s property from a M-1A zoning classification to R-2 and IAC zoning
classifications. Prior to the hearing, a notice of hearing was published in
the April 3, 2019, edition of The Scranton Times. As noted in the amended
complaint, the Borough did not adopt an updated comprehensive plan
prior to adopting Ordinance No. 3.
Earlier that same day, Pompey Coal submitted a land development
plan to the Borough in preparation for its sale of land to Northpoint. The
land development plan proposed two warehouses to be built within the
property owned by Pompey Coal. On April 24, 2019, the Borough
planning commission reviewed Pompey Coal’s land development plan
and voted to permit it to supplement its submission, rejecting a motion
to reject it as technically defective. On May 20, 2019, notwithstanding
the planning commission vote, the Borough secretary forwarded a letter
to Pompey Coal’s attorney rejecting the land development plan, signed
by the secretary on behalf of the planning commission chair.
As a result of the Borough Council’s passage of Ordinance No. 3,
Pompey Coal alleges that it has been unable to finalize an agreement of
sale of the property to Northpoint because the property is no longer zoned

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M-1A and the landowner would not be permitted to develop the two
warehouses Northpoint desired to build.
On April 24, 2019, Pompey Coal commenced the instant civil action
by filing a writ of summons in the court of common pleas, docketed there
as Pompey Coal Company v. Borough of Jessup, Case No. 2019-02461
(Lackawanna Cty. (Pa.) C.C.P.). (Doc. 2.) Pompey Coal filed its original
state-court complaint on February 7, 2020. (Doc. 2-1.) The action was
removed by the defendants to federal district court on February 28, 2020,
and Pompey Coal filed its amended complaint in this federal civil action
on March 30, 2020. (Doc. 1; Doc. 10.)5
On May 7, 2019, Pompey Coal commenced a second state-court
action, Pompey Coal Company v. Borough of Jessup, Case No. 2019-02735
(Lackawanna Cty. (Pa.) C.C.P.), by filing a notice of procedural appeal in
the court of common pleas, which challenged the validity of the Borough’s
adoption of Ordinance No. 3 under provisions of the Pennsylvania

A district court, of course, may properly take judicial notice of
state court records, as well as its own. See Fed. R. Evid. 201; Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth
Servs. of Chester Cty., 108 F.3d 486, 498–99 (3d Cir. 1997); Pennsylvania
v. Brown, 373 F.2d 771, 778 (3d Cir. 1967). Each of the state-court records
referenced in this paragraph was also attached as an exhibit to the
defendants’ notice of removal, filed in this action.
5

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Municipal Planning Code and the Pennsylvania Borough Code. (Doc. 181; Doc. 18-2.)
On May 30, 2019, Pompey Coal commenced a third state-court
action, Pompey Coal Company v. Borough of Jessup, Case No. 2019-03224
(Lackawanna Cty. (Pa.) C.C.P.), by filing a notice of appeal in the court
of common pleas, which challenged the rejection of Pompey Coal’s land
development plan by the Borough planning commission. (Doc. 18-3; Doc.
18-4.)6
II.

LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure 7 authorizes a

defendant to move to dismiss for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

See supra note 5. Each of the state-court records referenced in this
paragraph was also attached as an exhibit to the defendants’ brief in
support of their motion to dismiss, filed in this action.
7 Although the issue of Younger abstention implicates the court’s
exercise of jurisdiction over a case, the Third Circuit has noted that
“[d]ismissal on abstention grounds without retention of jurisdiction is in
the nature of a dismissal under Fed. R. Civ. P. 12(b)(6).” Gwynedd Props.,
Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1206 n.18 (3d Cir. 1992); see
also PDX N., Inc. v. Comm’r N.J. Dep’t of Labor & Workforce Dev., 978
F.3d 871, 881 n.8 (3d Cir. 2020) (suggesting that Younger abstention is
properly considered under Rule 12(b)(6) or Rule 12(c)), petition for cert.
filed, No. 20-1327 (U.S. Mar. 19, 2021). Thus, we consider this abstention
argument under the Rule 12(b)(6) standard, rather than Rule 12(b)(1).
6

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motion to dismiss may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court finds the plaintiff’s claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56
(2007)). In deciding the motion, the Court may consider the facts alleged
on the face of the complaint, as well as “documents incorporated into the
complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). Although the Court must accept the fact allegations in the
complaint as true, it is not compelled to accept “unsupported conclusions
and unwarranted inferences, or a legal conclusion couched as a factual
allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required
to credit factual allegations contradicted by indisputably authentic
documents on which the complaint relies or matters of public record of
which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.
App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.
Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

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Supp. 2d 579, 588–89 (W.D. Pa. 2008).
III.

DISCUSSION
The amended complaint is comprised of eight counts. In Count I,

the plaintiff asserts a § 1983 retaliation claim under the Fourteenth
Amendment, contending that the defendants retaliated against Pompey
Coal for the exercise of its constitutional right to own and use property
by adopting and implementing the new zoning ordinance and map. In
Count II, the plaintiff asserts § 1983 substantive and procedural due
process claims under the Fourteenth Amendment, contending that the
defendants’ adoption and implementation of the new zoning ordinance
and map was arbitrary and capricious, and it deprived Pompey Coal of
its protected property rights without due process of law. In Count III, the
plaintiff asserts a § 1983 equal protection claim, contending that the new
zoning ordinance and map treated Pompey Coal differently from other
similarly situated property owners without a compelling state interest.
In Count IV, the plaintiff asserts a § 1983 or § 1985 civil conspiracy claim,
contending that the defendants conspired to violate Pompey Coal’s

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federal civil rights. 8 In Count V, VI, and VII, the plaintiff asserts statelaw civil conspiracy and intentional interference with existing and
prospective contractual relations claims. In Count VIII, the plaintiff
asserts a state-law claim that the adoption and implementation of the
new zoning ordinance and map were in violation of state statutes
governing the adoption of local zoning ordinances. For relief, the plaintiff
seeks declaratory judgment and an award of compensatory and punitive
damages.
A. Abandoned Claims
We note at the outset that, in its brief in opposition, the plaintiff
has expressly conceded that it may not recover punitive damages from
the Borough and the individual defendants in their official capacities, as
a matter of law. (Doc. 21 n.5.) It has also conceded and expressly
withdrawn its state-law claims that the defendants violated the notice
requirements of the Pennsylvania Municipal Planning Code, 53 P.S.

On its face, Count IV asserts a conspiracy to violate civil rights
under 42 U.S.C. § 1985, but the plaintiff’s brief in opposition to dismissal
asserts that this was a typographical error, arguing that this claim
should be treated instead as a civil conspiracy under § 1983. We address
this particular claim under both statutes.
8

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§§ 10609, 10107, and the Pennsylvania Borough Code,9 8 Pa. Cons. Stat.
Ann. § 3301.2, as set forth in Count VIII of the amended complaint. (Id.
at 23.) Accordingly, these claims will be dismissed.
B. Younger Abstention
We turn then to the question of whether we should abstain from
exercising jurisdiction over this federal civil action pursuant to Younger
v. Harris, 401 U.S. 37 (1971), in deference to the two other civil actions
by the plaintiff seeking judicial review of the adoption and application of
Ordinance No. 3, both of which remain pending in state court.
In Younger, the Supreme Court of the United States held that,
absent extraordinary circumstances, federal courts should refrain from
enjoining pending state criminal prosecutions. See id. at 43–44. Since
then, the Supreme Court has extended Younger abstention to include
“particular state civil proceedings that are akin to criminal prosecutions
or that implicate a State’s interest in enforcing the orders and judgments
of its courts.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72–73 (2013)
(citations omitted); see also New Orleans Pub. Serv., Inc. v. Council of

The plaintiff’s brief references the “Jessup Borough Code,” but the
statutory citation is to the Pennsylvania Borough Code.
9

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City of New Orleans (“NOPSI”), 491 U.S. 350, 368 (1989)).
Circumstances fitting within the Younger doctrine, we
have stressed, are “exceptional”; they include, as
catalogued in NOPSI, “state criminal prosecutions,”
“civil enforcement proceedings,” and “civil proceedings
involving certain orders that are uniquely in
furtherance of the state courts’ ability to perform their
judicial function.”
Sprint, 571 U.S. at 73 (quoting NOPSI, 491 U.S. at 367–68); see also
NOPSI, 491 U.S. at 368 (including in this last category civil contempt
orders and requirements for the posting of bond pending appeal).
Of particular relevance here, Younger does not “require[] abstention
in deference to a state judicial proceeding reviewing legislative or
executive action.” NOPSI, 491 U.S. at 368. The claims raised by the
plaintiff in this case solely concern legislative action—the consideration
and adoption of a local land use ordinance and zoning map—and
executive action—the planning commission’s enforcement of the
ordinance in connection with its consideration and rejection of Pompey
Coal’s land development plan. The related state court actions in favor of
which the defendants ask us to abstain are not criminal prosecutions or
quasi-criminal civil enforcement proceedings, nor do they implicate
Pennsylvania’s interest in enforcing the orders and judgments of its

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courts.10 See Selig v. N. Whitehall Twp. Zoning Hearing Bd., Civil Action
No. 17-4504, 2018 WL 1942510, at *6 (E.D. Pa. Apr. 24, 2018) (finding
Younger abstention with respect to local zoning decisions inappropriate
under Sprint); see also Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970
F.2d 1195, 1203 (3d Cir. 1992) (admonishing “district courts not to
dismiss claims hastily merely because they may involve land use issue”);
Heritage Farms, Inc. v. Solebury Twp., 671 F.2d 743, 748 (3d Cir. 1982)
(“[T]he mere presence of land use issues should not trigger a mechanical
decision to abstain.”); Godfrey v. Upland Borough, 246 F. Supp. 3d 1078,
1094 (E.D. Pa. 2017) (“[D]isputes touching on a state’s land use
policies, . . . although doubtless related to important state interests, do
not necessarily warrant abstention.”). See generally Sprint, 571 U.S. at
72 (“Abstention is not in order simply because a pending state-court
proceeding involves the same subject matter.”).

As noted above, Pompey Coal has expressly withdrawn its state
municipal planning code and borough code claims in this case, conceding
that litigating these claims here would be duplicative of its separate
state-court actions for judicial review of the planning commission’s
rejection of its land development plan and for judicial review of
Ordinance No. 3 itself. But even if these claims were not abandoned, it is
doubtful that the pending state-court actions for judicial review of the
Borough’s legislative and executive actions would constitute the sort of
“exceptional circumstances” to which Younger abstention applies.
10

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Accordingly, we decline to abstain from exercising jurisdiction in
this case pursuant to Younger.
C. Federal Civil Rights Claims
Pompey Coal brings its federal civil rights claims, set forth in
Counts I, II, III, and IV,11 under 42 U.S.C. § 1983. Section 1983 provides
in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but
instead provides remedies for rights established elsewhere. City of
Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,
the plaintiff must establish that the defendant, acting under color of state
law, deprived the plaintiff of a right secured by the United States
Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). To avoid dismissal for failure to state a claim, a civil rights

11

See supra note 8.
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complaint must state the conduct, time, place, and persons responsible
for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005).
1. Fourteenth Amendment Retaliation Claim
In Count I, the plaintiff asserts a § 1983 retaliation claim. To plead
a § 1983 retaliation claim, a plaintiff must allege: “(1) constitutionally
protected conduct, (2) 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 action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d
Cir. 2006). Section 1983 retaliation claims are typically brought under
the First Amendment. See id. at 298 n.6 (finding no § 1983 claim for
retaliation arising under the Fourteenth Amendment’s equal protection
clause); accord R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 439–
40 (6th Cir. 2005); Watkins v. Bowden, 105 F.3d 1344, 1354–55 (11th Cir.
1997); Long v. Laramie Cty. Cmty. Coll. Dist., 840 F.2d 743, 752 (10th
Cir. 1988). But see Higgins v. Beyer, 293 F.3d 683, 694–95 (3d Cir. 2002)
(referencing due process in reinstating claim that plaintiff suffered
retaliation for the exercise of his constitutionally protected right of access

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to the courts).
Regardless, the amended complaint here specifically alleges that
the defendants adopted and implemented Ordinance No. 3, re-zoning
Pompey Coal’s remaining property within the Borough, in retaliation for
its April 2016 sale of a parcel of land to Lackawanna Energy. The
amended complaint characterizes the April 2016 sale of land as a
constitutionally protected exercise of its right to own, use, develop, and
sell its real property—a right purportedly arising under the Fourteenth
Amendment. But it is state law that creates the property rights protected
by the Fourteenth Amendment. See Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972); Kelly v. Borough of Sayreville, 107 F.3d 1073,
1077 (3d Cir. 1997); Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d
405, 415 (M.D. Pa. 2019); see also DeKalb Stone, Inc. v. Cty. of DeKalb,
106 F.3d 956, 959 (11th Cir. 1997) (“It is well established that land use
rights, as property rights generally, are state-created rights.”) (citing
Roth, 408 U.S. at 577). Some federal constitutional rights may touch on
these state-created property rights. For example, the Fourteenth
Amendment protects against the deprivation of these state-created
property rights without due process of law, the Fifth Amendment

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protects against governmental taking of property without just
compensation, and the First Amendment may protect certain uses of
property implicating, inter alia, the right to free association or free
exercise of religion. 12 But the right to own or use property itself does not
implicate the exercise of a substantive federal constitutional right. See
Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 656 Fed.
App’x 1, 6 (3d Cir. 2016) (“[The] use of the property does not implicate a
separately protected constitutional right . . . .”); cf. Nat’l W. Life Ins. Co.
v. Commodore Cove Improvement Dist., 678 F.2d 24, 26 (5th Cir. 1982)
(“The right freely to alienate real property is not a ‘fundamental right’
that calls for application of strict scrutiny.”). See generally Charles H.
Clarke, The Owl and the Takings Clause, 25 St. Mary’s L.J. 693, 709
(“The constitutional right to own and use land . . . is not an enumerated
constitutional right.”); id. at 722 (“A federal constitutional right to own
and use property . . . does not exist.”). Thus, the amended complaint has
failed to allege any constitutionally protected conduct in support of its
§ 1983 retaliation claim.

We note that the plaintiff has not asserted a Fifth Amendment
takings claim in this action. As we have noted, it does assert Fourteenth
Amendment substantive and procedural due process claims.
12

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The plaintiff’s attempts to recast this claim in its brief as a First
Amendment retaliation claim, suggesting there—somewhat circularly—
that the defendants’ adoption and implementation of Ordinance No. 3
was motivated by Pompey Coal’s “standing up to the rogue legislative
process employed by the [d]efendants in drafting and promoting the
zoning ordinance.” (Doc. 25, at 16.) But “[i]t is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to
dismiss.” Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,
181 (3d Cir. 1988); see also Damiano v. Scranton Sch. Dist., 135 F. Supp.
3d 255, 279 (M.D. Pa. 2015); Adv. Fluid Sys., Inc. v. Huber, 28 F. Supp.
3d 306, 331 n.14 (M.D. Pa. 2014); Sites v. Nationstar Mortg. LLC, 646 F.
Supp. 2d 699, 712 (M.D. Pa. 2009). Although “[a] party does not need to
plead specific legal theories in the complaint, as long as the opposing
party receives notice as to what is at issue in the lawsuit,” Elec. Constr.
& Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 622 (9th Cir. 1985),
the § 1983 retaliation claim articulated in the plaintiff’s counseled
amended complaint clearly and unequivocally asserts that the
defendants retaliated against Pompey Coal for its sale of property to
Lackawanna Energy, and it does not plead sufficient facts to support a

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plausible claim that the defendants retaliated against Pompey Coal for
its exercise of any First Amendment rights. To the extent such facts can
be marshaled, the plaintiff may attempt to plead a plausible First
Amendment retaliation claim in a second amended complaint.
Accordingly, Count I of the amended complaint will be dismissed.
2. Fourteenth Amendment Substantive Due Process Claim
In Count II, the plaintiff asserts a § 1983 substantive due process
claim. Substantive due process protects against arbitrary government
action, both at the executive and legislative levels. See Cty. of Sacramento
v. Lewis, 523 U.S. 833, 845–46 (1998). Pompey Coal contends that the
defendants acted in an arbitrary fashion by adopting Ordinance No. 3,
rezoning Pompey Coal’s property from M-1A classification to R-2 and IAC
classifications, and by rejecting Pompey Coal’s land development plan.
The first step in evaluating a substantive due process claim is to
determine whether the plaintiff has alleged a property interest protected
by the Fourteenth Amendment’s due process clause. See Chainey v.
Street, 523 F.3d 200, 219 (3d Cir. 2008); Giuliani v. Springfield Twp., 238
F. Supp. 3d 670, 695 (E.D. Pa. 2017), aff’d, 726 Fed. App’x 118 (3d Cir.
2018). Here, the plaintiff owns a parcel of land affected by the Borough’s

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adoption of the new zoning ordinance and map and its application of the
zoning ordinance and map in rejecting a land development plan
submitted to the Borough planning commission for approval. This is
sufficient to establish a property interest entitled to due process
protection. See Chainey, 523 F.3d at 219 (“[O]wnership is a property
interest worth of substantive due process protection.”); Giuliani, 238 F.
Supp. 3d at 695; Flanders v. Dzugan, 156 F. Supp. 3d 648, 665 (W.D. Pa.
2016).
Next, we must determine the applicable substantive legal standard
for evaluating whether the government’s action violated substantive due
process. The Third Circuit has distinguished between legislative and
executive actions when faced with a substantive due process claim. See
Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006).
Here, the plaintiff presents both a facial challenge to the Borough’s
adoption of a zoning ordinance and map—a legislative act—and the
application of that zoning ordinance and map by the Borough planning
commission’s rejection of the plaintiff’s land development plan—an
administrative or executive act.
We start with the legislative act—the adoption of Ordinance No. 3.

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As the Third Circuit has observed, “federal judicial interference with a
state zoning board’s quasi-legislative decisions, like invalidation of
legislation for ‘irrationality’ or ‘arbitrariness,’ is proper only if the
governmental body could have had no legitimate reason for its decision.’”
Pace Res., Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1034 (3d Cir. 1987)
(emphasis in original). Thus, to state a substantive due process claim
with respect to a legislative act, a plaintiff must “allege facts that would
support a finding of arbitrary or irrational legislative action by the
[municipality].” Id. at 1035. Here, Pompey Coal has alleged that the
adoption of Ordinance No. 3, re-zoning its property from an M-1A
industrial classification to less permissive R-2 residential and IAC
mixed-use classifications, was inconsistent with the then-existing
Borough comprehensive plan. But, as in Pace, “[t]his shows only a change
of legislative position, not irrationality.” See id. The amended complaint
also alleges that the adoption of this new zoning ordinance and map was
motivated, at least in some part, by Pompey Coal’s April 2016 sale of a
parcel of land to Lackawanna Energy for the construction of a power
plant, which outraged the defendants. As in Pace, the facts alleged here
by the plaintiff suggest that one of the purposes of this legislative change

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was to “curb industrial development,” and thus, as pleaded, this case
merely “involves a difference of opinion on how much industrial
development is in the best interests of the [Borough] and how that
quantum of industrial development should be achieved.” Id. at 1035 &
n.8. Based on the allegations of the amended complaint, one can easily
articulate a rational connection between the adoption of the new zoning
ordinance and map and the legitimate purpose of curbing industrial
development. See id. at 1035.
We turn then to the executive act—the rejection of Pompey Coal’s
land development plan. “Government [executive] action does not violate
substantive due process when merely prompted by an ‘improper motive.’”
Giuliani, 238 F. Supp. 3d at 696. Rather, “executive action violates
substantive due process only when it shocks the conscience.” United
Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399–
400 (3d Cir. 2003). “While there is no ‘calibrated yard stick’ upon which
to measure such conduct, the Supreme Court has recognized that ‘only
the most egregious official conduct’ qualifies.” Giuliani, 238 F. Supp. 3d
at 696; see also Lewis, 523 U.S. at 846, 847. “[T]his test is designed to
avoid converting federal courts into super zoning tribunals.” Eichenlaub

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v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004).
In [Eichenlaub], the Court of Appeals provided the
lower courts with some guidance on what qualifies as
conscience-shocking behavior in the land use context,
including: evidence of “corruption or self-dealing,” the
hampering of development in order to interfere
with otherwise constitutionally-protected activity,
municipal action reflecting “bias against an ethnic
group,” or evidence indicating a “virtual taking” of the
claimant’s property. By the same token, the Court of
Appeals listed examples of conduct that is not
sufficiently egregious or outrageous, such as: applying
certain regulations to one parcel of property but not to
others, making unannounced or unnecessary
inspections of the property, delaying permits and
approvals, improperly increasing tax assessments or
“maligning or muzzling” claimants.
Giuliani, 238 F. Supp. 3d at 696 (quoting Eichenlaub, 385 F.3d at 286)
(citation and internal brackets omitted); see also Flanders, 156 F. Supp.
3d at 668.
Here, the amended complaint has alleged that the defendants
applied a pending or newly adopted zoning ordinance that conflicted with
the Borough’s existing comprehensive plan, that it treated the plaintiff
differently from at least one other nearby property owner, and failed to
comply with state procedural laws that governed the notice and hearing

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required for municipalities to amend their zoning ordinances and maps.13
The exhibits attached to the amended complaint, however, include the
written letter from the Borough planning commission chair informing
Pompey Coal that its land development plan had been rejected as
deficient. The letter cited Pompey Coal’s failure to comply with provisions
of the Borough’s subdivision and land development ordinance (“SALDO”),
which required the submission of additional copies of a planning module
required by the Pennsylvania Sewage Facilities Act and the submission
of a proposed layout of fire hydrants required by the SALDO itself. (Doc.
10-8.) The amended complaint simply contains no allegations that rise
above the level of an ordinary zoning dispute to the level of “conscience
shocking” conduct by the defendants in connection with the rejection of
Pompey Coal’s land development plan. See Giuliani, 238 F. Supp. 3d at
697; see also Giuliani, 726 Fed. App’x at 123 (finding no substantive due
process violation where “there is no evidence of corruption or self-dealing,

The amended complaint also appears to imply some personal
animus by one of the defendants, Borough president Crinella, who does
not appear to sit on the planning commission. But even if attributed to
the planning commission and its decision to reject Pompey Coal’s land
development plan, personal or political animus is not sufficient to meet
the “shocks the conscience” standard. See Tucker, 656 Fed. App’x at 6–7;
Flanders, 156 F. Supp. 3d at 670.
13

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such as bribery or an attempt by a [municipal] official to acquire the
property for himself or herself”); E. Rockhill Twp. v. Richard E. Pierson
Materials Corp., 386 F. Supp. 3d 493, 499 (E.D. Pa. 2019) (“Absent claims
of corruption, self-dealing, bias against an ethnic group, or intent to
interfere with constitutionally-protected activity, the Third Circuit and
district courts have hesitated to find official behavior in the land use
context conscience-shocking.”).
Accordingly, Count II of the amended complaint will be dismissed
with respect to the plaintiff’s substantive due process claim.
3. Fourteenth Amendment Procedural Due Process Claim
In Count II, the plaintiff also asserts a § 1983 procedural due
process claim. The plaintiff bases this claim on the defendants failure to
strictly comply with various procedural requirements imposed by state
law.
“A procedural due process claim is subject to a two-stage inquiry:
(1) whether the plaintiff has a property interest protected by procedural
due process, and (2) what procedures constitute due process of law.”
McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 639 (M.D. Pa.
2014); see also Giuliani, 238 F. Supp. 3d at 690. For the reasons given in

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the preceding section, it is clear that the plaintiff’s ownership of the
affected property satisfies the first stage of this inquiry.
With respect to the second stage of this inquiry, Pompey Coal
contends that its procedural due process rights were violated because the
defendants initially met “outside the public purview” for initial
discussions regarding the re-zoning of Pompey Coal’s property, in
violation of state open-meeting laws. It further contends that the
defendants failed to properly advertise the proposed ordinance prior to
the public meetings at which it was considered—it argues that the
defendants improperly calculated the 7- and 14-day pre-meeting periods,
publishing notice of the hearings 6 and 13 days beforehand instead.
Finally, it contends that these non-public discussions and the defendants’
failure to provide adequate notice under these state laws denied it the
notice and opportunity to be heard that procedural due process requires.
But it is well-established “that mere violation of a state statute does
not infringe the federal Constitution, and that state rather than federal
courts are the appropriate institutions to enforce state rules.” United
States v. Laville, 480 F.3d 187, 192 (3d Cir. 2007) (internal quotation
marks and brackets omitted). State open meeting laws confer no right to

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be heard upon any individual; the only purpose of requiring open
meetings

is

to

assure

public

accountability

of

governmental

decisionmakers. Skepton v. Bucks Cty., 613 F. Supp. 1013, 1021–22 (E.D.
Pa. 1985) (dismissing procedural due process claim based on violation of
Pennsylvania open meeting and “sunshine” laws). Moreover, “a
municipality’s mere failure to comply with the time limitation in a
statute does not implicate a deprivation of constitutional due process
rights,” particularly where the plaintiff has suffered no demonstrable
prejudice as a result of the technical defect. Gladstone Partners, LP v. E.
Union Twp., 26 A.3d 542, 549 (Pa. Commw. Ct. 2011) (holding that, in
the absence of any evidence of prejudice to the appellant, “publication of
the proposed ordinance six days before [a township supervisor’s meeting
at which the zoning ordinance was adopted] substantially complied with
the

7-day

time

limitation,

and

otherwise

met

the

statutory

requirements”); cf. Dennis v. Dejong, 557 Fed. App’x 112, 118 (3d Cir.
2014) (“Although the petition was not filed in strict compliance with the
time required by state law, the question of ‘what process is due’ for
purposes of the Due Process Clause is a matter of federal constitutional
law, not state law.”); Gibson v. Pa. Pub. Utilities Comm’n, No. 1:15-cv-

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00855, 2015 WL 3952777, at *7 (M.D. Pa. June 18, 2015) (finding that, in
the absence of any alleged prejudice, a state administrative law judge’s
issuance of an initial decision one day after a 90-day statutory period
expired was patently insufficient to establish an unreasonable delay).
Also, notwithstanding the plaintiff’s characterization of the facts in its
brief, the allegations of the amended complaint clearly demonstrate that
Pompey Coal received advance notice of the March and April 2019
Borough Council public meetings at which Ordinance No. 3 was
considered and adopted, and that Pompey Coal in fact attended and
voiced its objections to adoption of the new zoning ordinance and map.
Finally, we note that “the focus in procedural due process claims is
on the adequacy of the remedial procedure, and not on the government’s
actual actions that allegedly deprived the individual of his liberty or
property interest.” Giuliani, 726 Fed. App’x at 122 (emphasis added); see
also K.S.S. v. Montgomery Cty. Bd. of Comm’rs, 871 F. Supp. 2d 389, 397–
98 (E.D. Pa. 2012). “[A] state provides constitutionally adequate
procedural due process when it provides reasonable remedies to rectify a
legal error by a local administrative body.” Giuliani, 726 Fed. App’x at
118.

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In the context of land use disputes, the Court of
Appeals has held that state and municipal officials are
constitutionally obliged to offer a means by which
individuals may challenge zoning restrictions and
other adverse land use decisions. . . . The Court of
Appeals has expressly recognized that the
Pennsylvania Municipalities Code provides a
constitutionally adequate means for those aggrieved by
a land use decision to challenge the action in
administrative and judicial proceedings.
Giuliani, 239 F. Supp. 3d at 690. The plaintiff in this case has availed
itself of this process, instituting state-court actions for judicial review of
these same land-use actions by the Borough, which remain pending.
Accordingly, Count II of the amended complaint will be dismissed
with respect to the plaintiff’s procedural due process claim.
4. Fourteenth Amendment Equal Protection Claim
In Count III, the plaintiff asserts a § 1983 equal protection claim.
The Supreme Court of the United States has “recognized successful equal
protection claims brought by a ‘class of one,’ where the plaintiff alleges
that she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To
state a claim under this theory, “a plaintiff must allege that (1) the
defendant treated him differently from others similarly situated, (2) the
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defendant did so intentionally, and (3) there was no rational basis for the
difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239
(3d Cir. 2006). “These challenges fail when ‘there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification.’” Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.
App’x 251, 259 (3d Cir. 2010) (quoting Heller v. Doe, 509 U.S. 312, 320
(1993)). Notably, an equal protection claim is not ‘a device to dilute the
stringent requirements needed to show a substantive due process
violation.’” Giuliani, 238 F. Supp. 3d at 701 (quoting Eichenlaub, 385
F.3d at 287).
“To be ‘similarly situated,’ parties must be ‘alike in all relevant
aspects.’” Flanders, 156 F. Supp. 3d at 677 (quoting Perano v. Twp. of
Tilden, 423 Fed. App’x 234, 238 (3d Cir. 2011)).
Thus, the proponent of the equal protection violation
must show that the parties with whom he seeks to be
compared have engaged in the same activity vis-à-vis
the government entity without such distinguishing or
mitigating circumstances as would render the
comparison inutile. In cases involving zoning or landuse disputes, courts consider the similarity of the
properties being compared, including their physical
characteristics and their ‘similarities in the eyes of a
defendant.”
Giuliani, 238 F. Supp. 3d at 702 (citation and internal quotation marks
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omitted).
Here, beyond conclusory allegation that the ordinance “singles out
Pompey Coal from other similarly situated classes of property owners”
(Doc. 10 ¶ 79), the plaintiff has no facts whatsoever upon which to base a
plausible claim that it was treated differently from others similarly
situated.
When alleging the existence of similarly situated
individuals, a plaintiff “cannot use allegations . . . that
amount to nothing more than ‘conclusory, boilerplate
language’ to show that he may be entitled to relief,” and
“bald assertion[s] that other[s] . . . were treated in a
dissimilar manner” will not survive dismissal. Instead,
the plaintiff must allege “occasions or circumstances”
or different treatment.
Dunmore Sch. Dist. v. Pa. Interscholastic Athletic Ass’n, ___ F. Supp. 3d
____, 2020 WL 7212874, at *12 (M.D. Pa. Dec. 7, 2020) (quoting Young v.
New Sewickley Twp., 160 Fed. App’x 263, 266 (3d Cir. 2006)) (alterations
in original). The amended complaint mentions a purchase of land, also
zoned M-1A, by Trammell Crow, which was allegedly treated more
favorably than Pompey Coal’s anticipated sale to Northpoint, but there
are no facts alleged to suggest that these two land owners were in any
way similarly situated. The amended complaint does not allege facts
regarding the location of the parcel purchased by Trammell Crow, its
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characteristics, the nature of Trammell Crow’s use of that land, or that
Trammell Crow sought approval of a similar land development plan.
Accordingly, Count III of the amended complaint will be dismissed.
5. Federal Civil Rights Conspiracy Claim
In Count IV, the plaintiff asserts what appears to be a § 1985 claim
for conspiracy to violate civil rights.
The elements of such a cause of action are: 1) a
conspiracy; 2) motivated by a racial or class-based
discriminatory animus designed to deprive, directly or
indirectly, any person or class of persons of the equal
protection of the laws; 3) an act in furtherance of the
conspiracy; and 4) an injury to person or property or
the deprivation of any right or privilege of a citizen of
the United States.
Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 430 (M.D. Pa. 2009).
In its brief, the plaintiff concedes that it has not alleged any racial or
class-based discriminatory animus, but contends that reference to § 1985
was a typographical error. (Doc. 25, at 17 n.2.)
The plaintiff contends that this claim should be considered as claim
of conspiracy to violate civil rights under § 1983 instead. To state a claim
for conspiracy under § 1983, “a plaintiff must allege: (1) the existence of
a conspiracy involving state action; and (2) a deprivation of civil rights in
furtherance of the conspiracy by a party to the conspiracy.” Marchese v.
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Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000). As discussed in the
preceding sections, the plaintiff has failed to state a claim with respect to
its retaliation claim, its substantive and procedural due process claims,
and its equal protection claims under § 1983. “There can be no civil
conspiracy to commit an unlawful act under § 1983 where the plaintiff
has not proven a deprivation of a constitutional or federal statutory right
or privilege.” Rink v. Ne. Educ. Intermediate Unit 19, 717 Fed. App’x 126,
141 (3d Cir. 2017).
Accordingly, Count IV of the amended complaint will be dismissed.
6. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is
vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be
inequitable or futile, Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and
those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). In its brief, the plaintiff requested leave to amend if claims are
dismissed, and it does not appear to us that amendment would be futile.
Moreover, the defendants have stated in their reply brief that they do not

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oppose the plaintiff’s request for leave to amend. Therefore, the amended
complaint will be dismissed with leave to amend.
D. State-Law Tort Claims
In addition to the federal civil rights claims set forth in Counts I,
II, III, and IV, the amended complaint has asserted state-law claims in
Counts V, VI, and VII. 14 But where a district court has dismissed all
claims over which it had original jurisdiction, the Court may decline to
exercise supplemental jurisdiction over state-law claims. 28 U.S.C.
§ 1367(c)(3). Whether the Court will exercise supplemental jurisdiction
is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).
That decision should be based on “the values of judicial economy,
convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been
dismissed and only state-law claims remain, the balance of these factors
indicates that these remaining claims properly belong in state court.
Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this
case from the ordinary one, the balance of factors in this case “point[s]

Based on the plaintiff’s concession and withdrawal, we will
dismiss its state law claim set forth in Count VIII.
14

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toward declining to exercise jurisdiction over the remaining state law
claims.” See Cohill, 484 U.S. at 350 n.7. Therefore, if a second amended
complaint is not timely filed by the plaintiff, the remaining state-law
claims will be remanded to the Court of Common Pleas of Lackawanna
County, Pennsylvania, for further proceedings. See Cohill, 484 U.S. at
357.
IV.

CONCLUSION
For the foregoing reasons, the motion to dismiss will be granted,

and the plaintiff’s federal civil rights claims will be dismissed with leave
to amend.
An appropriate order follows.

Dated: March 31, 2021

s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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