Hynoski et al v. Colulmbia County Redevelopment Authority et al
Filing
114
MEMORANDUM AND ORDER: GRANTING IN PART and DENYING IN PART defendants' motions to dismiss (ECF Nos. 56, 57, 58, 59) the amended complaint (ECF No. 54); DENYING AS MOOT defendants' joint motion to stay discovery (ECF No. 108); DIRECTING the clerk to amend docket entry 54 consistent with the court's 8/11/2011 order (ECF No. 103). (See Memorandum and Order for details.) Signed by Honorable Matthew W. Brann on 4/19/2013. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BONNIE HYNOSKI,
STEPHEN HYNOSKI,
CHRISTINE HYNOSKI, TOM HYNOSKI,
THE BOROUGH OF CENTRALIA,
HAROLD MERVINE, JOHN KOSCHOFF,
HELEN HYNOSKI AND
WALTER HYNOSKI,
:
:
:
:
:
:
:
:
Plaintiffs
:
:
v.
:
:
:
COLUMBIA COUNTY
:
REDEVELOPMENT AUTHORITY,
:
ROSENN JENKINS AND GREENWALD, :
LLP, JOHN T ZELINKA, GARY TAROLI, :
BLASCHAK COAL CORP., STEVEN
:
FISHMAN, COMMONWEALTH OF
:
PENNSYLVANIA, DEPT. OF
:
COMMUNITY AND
:
ECONOMIC DEVELOPMENT AND
:
C. ALAN WALKER,
:
:
:
Defendants.
:
Case No. 4:10-CV-2222
(Judge Brann)
MEMORANDUM
April 19, 2013
This section 1983 action, under the Civil Rights Act of 1871 (42 U.S.C. § 1983),
commenced on October 27, 2010, proceeds on the amended complaint and arises from eminent
1
domain proceedings conducted in Pennsylvania state court. Before the court is defendants’
Rosenn Jenkins and Greenwald, LLP (“RJG”), Gary Taroli (“Taroli”), John T. Zelinka
(“Zelinka”), Columbia County Redevelopment Authority (“CCRA”), Commonwealth of
Pennsylvania, Department of Economic Development (“DECD”), Stephen Fishman (“Fishman”),
C. Alan Walker (“Walker”), and Blaschak Coal Corp.’s (“Blaschak”) motions to dismiss.
Defs.[’] Mot. Dismiss, ECF Nos. 56, 57, 58, 59. Defendants have also jointly moved to stay
discovery pending the outcome of these motions. Defs [’] Mot. Stay, ECF No. 108.
I.
BACKGROUND
In 1962, an underground mine fire was discovered in the Borough of Centralia, Columbia
County, Pennsylvania.1 After prolonged but unsuccessful attempts to extinguish the fire, the
government, in 1983, implemented a voluntary relocation program which was carried out by the
CCRA, as an agent of the Department of Community Affairs (“DCA”).2 Thereafter, the CCRA
and DCA initiated eminent domain proceedings against the remaining property owners who did
not take part in the voluntary relocation efforts, including plaintiffs Bonnie, Stephen, Walter, and
Christine Hynoski, and Lamar and Lana Mervine. In 1993, the CCRA – at the behest of the
Commonwealth – filed declarations of taking against these properties. Plaintiffs all filed
preliminary objections claiming that:
1.
The CCRA acted ultra vires of its powers and vested
authority, pursuant to and in accordance with the Urban
1
The facts giving rise to this litigation are taken from the amended complaint and other
pleadings of record. See Am. Compl., ECF No. 54; Def. Mot. Dismiss, ECF No. 70; Third Cir.
Op., ECF No. 107-1.
2
DCA is the predecessor agency to defendant Commonwealth of Pennsylvania,
Department of Community and Economic Development (“DCED”).
2
Redevelopment Law, 35 P.S. §§ 1701-1719.1,
2.
As the condemnor, the DCA did not have the power or
right to acquire the properties through the exercise of
eminent domain, because it had not been delegated the
authority to exercise this right by the Commonwealth; and
3.
The takings were not conducted in accordance with due
process of law and without proper security first being made,
in violation of the Pennsylvania Eminent Domain Code, 26
P.S. §§ 1-101 through 1-903, the Pennsylvania
Constitution, and the Constitution of the United States of
America.
See Def. Mot. Dismiss, ECF No. 70-2, pp. 2-3; In re Condemnation Proceeding (Borough of
Centralia), 658 A.2d 481, 483 (Pa. Commw. 1994). The Court of Common Pleas of Columbia
County, Pennsylvania denied each of plaintiffs’ objections, and the Commonwealth Court of
Pennsylvania affirmed. See Def. Mot. Dismiss Exs. B, C, D, E, G, ECF Nos. 70-2, 70-3, 70-4,
70-5, 70-7. The state court proceedings came to an end when the Supreme Court of Pennsylvania
denied plaintiffs’ petition for an appeal in September 1995. See Def. Mot. Dismiss Ex. G, ECF
No. 70-7. On July 1, 2010, a declaration of taking was filed, for the first time, against plaintiff
John Koschoff’s property.
The instant litigation followed and was commenced on October 27, 2010. Compl., ECF
No. 1. Two days later, on October 29, 2010, and prior to any responsive pleadings being filed,
plaintiffs filed a motion for preliminary injunction. Pl. Mot. Prelim. Inj., ECF No. 2. While that
motion was pending, all defendants moved to dismiss the complaint. Defs.[’] Mot. Dismiss,
ECF Nos. 30, 35, 36, 43. Plaintiffs responded to the motions to dismiss by filing an amended
complaint on February 3, 2011.3 Motions to dismiss the amended complaint by all defendants
3
Although the amended complaint was stricken by order dated June 7, 2011, ECF No. 94,
that order was reconsidered and subsequently vacated by the court on August 11, 2011, ECF No.
3
followed. Defs.[’] Mot. Dismiss, ECF Nos. 56-59.
The operative complaint alleges violations of plaintiffs’ due process, equal protection,
and First Amendment rights. It is plaintiffs’ belief that the underground mine fire, discovered in
the Borough of Centralia, never posed a threat to the health or safety of its residents, but was
instead used a pretext to justify removing all residents from the land under which the fire burned,
and allow access to billions of dollars worth of coal which could then be mined by defendant
Blaschack. See Am. Compl. ¶¶ 44-45, ECF No. 54, Central to plaintiffs’ claims is the allegation
that one property (the “Netchel property”) was treated differently from the plaintiffs’ property in
that the declaration of taking filed against the Netchel property was subsequently withdrawn by
the CCRA while the taking of plaintiffs’ property remained in force. See Am. Compl., ¶¶ 46-57,
ECF No. 54.
II.
DISCUSSION
A.
LEGAL STANDARDS
A motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), tests the legal sufficiency of a
claim, (see Neitzke v. Williams, 490 U.S. 319, 326-27 (1989); Petruska v. Gannon University,
462 F.3d 294, 302 (3rd Cir. 2006)), and "streamlines litigation by dispensing with needless
discovery and fact finding." Neitzke, 490 at 326-27. A complaint should only be dismissed if,
accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to
state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Such a standard requires the court to engage in the following three step analysis
to determine the sufficiency of a complaint:
103. Thus, this action proceeds on the amended complaint.
4
First, the court must take note of the elements a plaintiff must
plead to state a claim. Second, the court should identify allegations
that, because they are no more than conclusions, are not entitled to
the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for
relief.
Connelly v. Steel Valley School Dist., 706 F.3d 209, 212 (3rd Cir. January 24, 2013) (quoting
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3rd Cir. 2011)).
"The tenet that a court must accept as true all of the [factual] allegations contained in the
complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)
(internal citations omitted). In ruling on such a motion, the court primarily considers the
allegations of the pleading, but is not required to consider legal conclusions alleged in the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3rd Cir. 1993). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. At
the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to
support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
"Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense." Iqbal, 556 U.S. at 662. In considering a Fed. R. Civ. P. 12(b)(6) motion, it
must be taken into account that federal courts require only notice pleading, as opposed to the
heightened standard of fact pleading. Hellmann v. Kercher, 2008 WL 2756282, *3 (W.D. Pa.
July 15, 2008) (Lancaster, J.) Fed. R. Civ. P. 8 "requires only a short and plain statement of the
claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of
what the…claim is and the grounds on which it rests," Twombly, 550 U.S. at 555 (citing Conley
5
v. Gibson, 355 U.S. 41, 47 (1957)). However, even under this lower notice pleading standard, a
plaintiff must do more than recite the elements of a cause of action, and then make a blanket
assertion of an entitlement to relief under it. Hellman, 2008 WL 2756282 at *3. Instead, a
plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that,
when taken as true, suggest the required elements of a particular legal theory. Twombly, 550 U.S
at 555. "[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - - but it has not "shown" - - "that the pleader
is entitled to relief." Iqbal, 556 U.S. at 662 (citing Fed. R. Civ. P. 8(a)). A court may dismiss a
claim under Fed. R. Civ. P. 12(b)(6) where there is a "dispositive issue of law." Neitzke, 490
U.S. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support
of its allegations, then a claim must be dismissed "without regard to whether it is based on an
outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
B.
MATERIAL OUTSIDE THE COMPLAINT
Although none of the defendants’ motions to dismiss specifically requests that the court
take judicial notice of any documents, defendant Blaschak attaches seven (7) exhibits to its
motion. See Def. Mot. Dismiss, ECF No. 70. Additionally, plaintiffs seek to incorporate
exhibits from their motion for preliminary injunction (ECF No. 2) – along with the preliminary
injunction motion itself – into their oppositions to the motions to dismiss. Because it appears as
though both parties intend the court to take judicial notice of their attached and incorporated
documents, the court addresses the issue here.
When considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court
generally considers only the allegations contained in the complaint, exhibits attached to the
6
complaint, and matters of public record. See Pension Ben. Guar. Corp. v. White Consol.
Industries, Inc., 998 F.2d 1192, 1196 (3rd Cir. 1993) (public records have included dispositions of
criminal cases, decisions of government agencies, and published reports of administrative
bodies); Fed. R. Civ. P. 12(d). The court may also, however, take judicial notice of certain facts,
as well as undisputedly authentic documents if the complainant's claims are based upon these
documents. Id. (parties’ purchase and sale agreement upon which complaint was based could be
judicially noticed); and see Mayer v. Belichick, 605 F.3d 223, 230 (3rd Cir. 2010). A judicially
noticed fact is one that is “not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b).
Here, all of the exhibits attached to Blaschak’s motion to dismiss fall within the proper
scope of the court’s notice. The documents include: (1) the declaration of taking against plaintiff
Koschoff’s property (2) the Hynoski and Mervine plaintiff’s objections to the takings; and (3)
four Pennsylvania state court opinions related to the objections. See Def. Mot. Dismiss, Exs. A,
G, ECF Nos. 70-1 - 70-7. All of these documents are matters of public record and their accuracy
is not reasonably questioned as they were all filed in formal state court proceedings. See
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 413
(3rd Cir. 1999) (taking judicial notice of an earlier court opinion as a matter of public record).
Taking judicial notice of these documents does not mean that the court accepts as true all the
contentions and allegations of the parties contained therein. Rather, the court notices the fact of
their filing and the rulings issued by the court of record.
7
Plaintiffs’ documents, in contrast, present a smattering of exhibits which will not all be
given the effect of judicial notice by this court. As to plaintiffs’ preliminary injunction motion,
plaintiffs do not identify what, exactly, they seek to incorporate, other than the entirety of their
preliminary injunction brief and the twenty-eight (28) exhibits attached thereto.
As explained above, the only matters outside the complaint that a court may consider on a
motion to dismiss, are public records or those facts whose truth and accuracy cannot reasonably
be disputed. See Fed. R. Evid. 201(b). A motion for preliminary injunction hardly fits into
either of these categories. Such a pleading is nothing but an amalgam of disputed factual
allegations and evidentiary showings. While the filing of the motion itself is a matter of public
record, the arguments and allegations contained within such a motion are hardly matters of
undisputed fact. The only purpose served by seeking to incorporate this motion is to include
arguments and evidence, allowable on a motion for preliminary injunction, that support
plaintiffs’ position but that would otherwise be excluded on a motion to dismiss. This perverts
the purpose of such a motion and the court does not consider plaintiffs’ preliminary injunction
brief as incorporated, in any fashion, into its oppositions to the motions to dismiss.
The exhibits attached to plaintiffs’ motion for preliminary injunction fall roughly in four
categories: (1) property records, (2) court documents, (3) photographs of the parcels of property
at issue; and (4) miscellaneous documents including newspaper articles, maps, technical reports,
and letters between counsel and parties. See Pl. Prelim. Inj., ECF No. 2. The court will take
judicial notice of the exhibits included in the first two categories but will not notice the exhibits
in the latter two categories. Exhibits 5, 6, 11 and 12 are public records reflecting the transfer of
property between defendant Blaschak Coal and private property owners. See Pl. Mot. Prelim.
8
Inj., Exs. 5, 6, 11, 12, ECF Nos. 2-2, 2-5. Specifically, Exhibit 5 is a publicly-recorded tax
transfer statement attaching Exhibit 6, an affidavit from grantor Blaschak supporting the transfer.
Id. Exhibits 11 and 12 are the publicly-recorded transfers of property – “The Indenture” –
including a legal description of the land, publicly notarized and containing the seal of the
Commonwealth of Pennsylvania. See Pl. Mot. Prelim. Inj., Exs. 11, 12, ECF No. 2-6. As public
records, the court takes judicial notice of these exhibits and the fact that the property described
therein was transferred accordingly.
Exhibits 7 and 8 are documents filed with the Court of Common Pleas of Columbia
County, Pennsylvania in connection with the eminent domain proceedings which gave rise to the
instant litigation. See Pl. Mot. Prelim. Inj., Exs. 7,8, ECF Nos. 2-4, 2-5. These documents will
be given judicial notice just as the court documents introduced by defendant Blaschak in its
motion to dismiss will be so noticed. See Southern Cross Overseas Agencies, Inc., 181 F.3d at
413. As public records, the declaration of taking filed against plaintiffs Stephen and Bonnie
Hynoski on January 23, 1993 will be judicially noticed along with the petition for appointment of
a board of view filed on October 2, 1992. See Pl. Mot. Prelim. Inj., Exs. 7,8, ECF Nos. 2-4, 2-5.
The remainder of plaintiffs’ exhibits are not the proper subject of judicial notice as they
are not matters of public record or undisputed fact. Exhibits 14 through 26 are simply
photographs of rural land, commercial buildings and single family homes. See Pl. Mot. Prelim.
Inj., Exs. 14-26, ECF No. 2-7. These photographs may represent some of the real property at
issue in this litigation, but none are identified as such or described by plaintiffs in any manner.
Even if the court were to take notice of these photographs, it is entirely unclear what the court
would be taking judicial notice of. Accordingly, Exhibits 14 through 26 will not be considered
9
by the court.
Exhibits 1, 2, and 13 are letters of counsel exchanged between parties to this litigation
concerning various settlement offers. Nothing about these letters satisfies the requirement of
Fed. R. Evid. 201(b) that they not be subject to reasonable dispute. The letters contain, for
example, determinations by the parties of whether private property within the Borough of
Centralia will be subject to taking and the type of ownership interest certain parties may retain in
their property. See Pl. Mot. Prelim. Inj., Exs. 1,2,13, ECF Nos. 2-2, 2-6. These matters go to the
heart of this litigation and are certainly the subject of dispute. Additionally, proof that these
letters were, in fact, sent or received cannot be verified, and defendants do not offer any such
acknowledgment.
Plaintiffs also ask the court to consider two newspaper articles in support of their
opposition to the motions to dismiss. See Pl. Mot. Prelim. Inj., Exs. 9,10, ECF Nos. 2-5, 2-6.
The articles discuss the taking of private property in the Borough of Centralia and defendant
Blaschak’s acquisition of the same. Id. While courts have taken judicial notice of newspaper
articles or certain facts contained within them, there is no reason to do so here. That these
articles were, in fact, published is not at all relevant to these motions, and the statements
contained in the articles themselves are hardly without dispute. See Selkridge v. United of
Omaha Life Insurance Co., 360 F.3d 155, 162, n. 5 (3rd Cir. 2004) (court may take judicial notice
of an article’s existence without accepting the truth of the statements contained therein);
Montgomery County v. Microvote Corp., 320 F.3d 440, 444, n. 2 (3rd Cir. 2003) (reports made by
the press are frequently disputed).
Exhibit 27 appears to be a map of Conyngham Township, Columbia County with
10
handwritten indications of where certain properties are located. See Pl. Mot. Prelim. Inj., Ex. 27,
ECF No. 2-8. As with the letters from counsel discussed above, such documents are not within
the proper scope of judicial notice; there is no indication that these maps are public documents,
nor do the handwritten notes on them constitute generally known facts that are capable of ready
determination. See Fed. R. Evid. 201(b). Accordingly, the court will not take judicial notice of
these documents.
Plaintiffs also include documents from state agencies reporting on “borehole monitoring”
and including characteristics of the mine fire which has given rise to this litigation. See Pl. Mot.
Prelim. Inj., Exs. 27 part 2, 28, ECF No. 2-8. These exhibits, like the maps and letters discussed
above, also fail to meet the requirements of Fed. R. Evid. 201(b) for reasons identical to those
discussed above.
Finally, plaintiffs include two exhibits which appear to be selected, non-consecutive
pages from deeds of trust recorded in Columbia County.4 It is not entirely clear what is intended
by the inclusion of these documents, let alone whether they might be authentic. As such, they are
entirely outside the scope of Fed. R. Evid. 201(b) and are not entitled to judicial notice.
In their opposition to the motions to dismiss, plaintiffs offer their intent to submit
affidavits and other statements supporting their claims. See e.g., Pl. Opp’n Mot. Dismss, ECF
Nos. 83-86 (“Plaintiff intends to submit an affidavit of Tom Hynoski that it was only him that
found out on or about June 1, 2009, . . . . plaintiffs . . . . now submit that it was less than two
years before the filing of this suit that they learned of it . . . . plaintiffs submit that none of their
4
Exhibit 3 appears to be a compilation of four of nine, non-consecutive pages from a deed
of trust recorded on February 5, 2010. Exhibit 4 is likewise composed of seven of twelve, nonconsecutive pages from an April 27, 2009 recorded deed of trust. See Pl. Mot. Prelim. Inj., Ex.
4, ECF No. 2-2.
11
claims specifically accrued until at least December 31, 2009 . . . . ” ). The court will not consider
any of these statements or allow such supporting material to be submitted in connection with the
resolution of these motions. As discussed above, a motion to dismiss considers only materials
attached to or relied upon by the complaint, or matters that the court may take judicial notice of
pursuant to Fed. R. Evid. 201(b). See infra, pp. 5-6. This does not include bare assertions of fact
contained in the motion itself or the promise of forthcoming exhibits – which exhibits may or
may not be the proper subject of judicial notice.
C.
STATUTE OF LIMITATIONS
Common to three of defendants’ motions to dismiss is the argument that plaintiffs’
claims are time-barred by the two-year statute of limitations applicable to a § 1983 cause of
action. See Defs.[’] Mot. Dismiss, ECF Nos. 56, 57, 58. Plaintiffs respond first, that the statute
of limitations has not run on account of the ongoing violations and injuries; and secondly, that as
to plaintiff Koschoff, whose declaration of taking was not filed until July, 2010, this argument is
inapplicable. Here, the court addresses whether the claims of six (6) plaintiffs, all of whom had
declarations of taking filed with respect to their property in 1993, are time-barred from asserting
their § 1983 claims.
Section 1983 of the Civil Rights Act is not itself a source of substantive rights, but merely
provides “a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94 (1989); Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). Accordingly, the
statute of limitations for § 1983 actions is drawn from the general or residual statue of limitations
for personal injury actions in the state where the case is brought. Owens v. Okure, 488 U.S. 235,
249-50 (1989). Here, Pennsylvania’s two-year statute of limitations for personal injury actions
12
governs. 42 Pa. C.S.A. § 5524; Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582,
599 (3rd Cir. 1998).
The accrual period for statute of limitations purposes begins when the plaintiffs know, or
have reason to know, of the injury that constitutes the basis of the action. Sameric, 142 F.3d at
599. The “discovery rule,” recognized by Pennsylvania law, tolls the statute of limitations period
when a plaintiff is unable, “despite the exercise of due diligence,” to know of the injury or its
cause. Mest v. Cabot Corp., 449 F.3d 502, 510 (3rd Cir. 2006) (citing Pocono Int’l Raceway, Inc.
v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983)). The tolling continues until
“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 conduct.” Mest, 449 F.3d at 510 (citing Debiec v.
Cabot Corp., 352 F.3d 117, 129 (3rd Cir. 2003)). Plaintiffs here claim that all of their claims are
tolled under the discovery rule and by virtue of the “continuing violations” perpetuated by
defendants. See Am. Compl. p. 3, ECF No. 54.
The declarations of taking with respect to all of plaintiffs’ properties (except one) were
filed in 1993. Am. Compl. ¶ 41, ECF No. 54.5 The condemnation proceedings concluded in
April 1996, when plaintiffs’ petition for certiorari to the United States Supreme Court was
denied. Noble v. Columbia Cnty. Redev. Auth., 517 U.S. 1119 (1996). Nonetheless, plaintiffs
contend that these dates have no bearing on the running of the statute because, while the takings
may have been valid at the time they were filed, the “true purposes” of the condemnations were
fraudulently concealed. See Pl. Opp’n Mot. Dismiss, ECF Nos. 83-86. Nevertheless, plaintiffs
need to allege when they became aware of the fraudulent nature of the taking for purposes of a
5
A notice of taking was not filed against plaintiff John Koschoff’s property until July,
2010. Def. Mot. Dismiss, Ex. A, ECF No. 70-1.
13
due process claim under § 1983. Nothing in the complaint shows when the accrual of plaintiffs’
substantive due process claims would have occurred. The bald assertion, in opposition to the
motions to dismiss, that “plaintiffs submit that none of their claims specifically accrued until at
least December 31, 2009 . . . . ” is insufficient to escape dismissal on a Fed. R. Civ. P. 12(b)(6)
motion. Pl. Opp’n Mot. Dismiss, ECF Nos. 83-86.
Plaintiffs further argue that there are “continuing violations issues” that apply to all of
their claims. This argument is similarly unavailing. The continuing violations doctrine is an
“equitable exception to the timely filing requirement” of conduct that is “more than the
occurrence of isolated or sporadic acts.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754, 755
(3rd Cir. 1995); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 166-67 (3rd Cir 2013)
(persistent, ongoing pattern of discriminatory acts constitutes ‘ongoing violation’ in hostile work
environment claim). In reigning-in the potentially far-reaching effects of this doctrine, the
Supreme Court distinguished between discrete acts, which are individually actionable, and those
that – while not individually actionable – may be aggregated to give rise to a cause of action. See
National Railroad Passenger Corp. V. Morgan, 536 U.S. 101(2002). The continuing violations
doctrine applies to only the latter types of acts – such as those forming the basis of a hostile work
environment claim under Title VII – for the simple reason that no cause of action accrues until
such acts, in the aggregate, give rise to an actionable claim. See O’Connor v. City of Newark,
440 F.3d 125, 128-129 (3rd Cir. 2006) (Morgan principles apply equally to § 1983 claims).
With these principles in mind, it is clear that plaintiffs’ claims are not susceptible to a
continuing violations theory. The Netchel settlement is the last occurrence forming the basis for
plaintiffs’ equal protection claim. See Am. Compl. ¶¶ 46-58, ECF No. 54. Specifically, the
14
claim is based on the CCRA’s alleged settlement and withdrawal of the declaration of taking
with respect to the Netchel property, but none of plaintiffs’ property. The agreement with the
Netchels was reached in November 2006, accruing plaintiffs’ claim for an equal protection
violation at that time.
Similarly, a First Amendment retaliation claim would have accrued after any individual
act which was intended to punish the person exercising their First Amendment rights. See
O’Connor, 440 F.3d at 127; Karchnak v. Swatara Township, 540 F.Supp.2d 540, 547 (M.D. Pa.
2008) (Rambo, J.) The most generous reading of the amended complaint contemplates a claim
that plaintiffs were not granted the same property interest as that of the Netchels on account of
some protected First Amendment activities in which they participated. See Am. Compl. ¶¶ 4657, 77, ECF No. 54. Again, however, this claim accrued when the settlement – which did not
include any of plaintiffs’ property – was reached with the Netchels; a decision made by the
CCRA that plaintiffs allege was made in retaliation.
Plaintiffs’ substantive due process claim can only be plausibly read to arise from the
discreet event of plaintiffs’ property being condemned and taken by the CCRA.6 This claim
became actionable once plaintiffs were on notice of the declarations of taking filed against their
property in 1993. At the very latest, the action might have accrued once the state court
proceedings were completed and final – in 1995. Either way, it cannot be maintained that any
substantive due process violations continued past the date when the properties were taken by the
authorities. Consequently, neither the discovery rule nor the doctrine of continuing violations
6
Although the amended complaint is devoid of specific factual allegations supporting a
substantive due process claim, the court presumes that the reference to “fraudulent taking” of
plaintiffs’ property through improper means is intended to state a claim for a substantive due
process violation.
15
excuses plaintiffs’ delay in bringing their claims outside the statute of limitations period.
Therefore, only plaintiff Koschoff’s claims will go forward.
The court now turns to the extent to which any of the defendants can be subject to
liability under § 1983, given their respective statuses as either private parties or as state actors.
D.
DEFENDANTS’ LIABILITY TO KOSCHOFF
The defendants named in this action include four private parties and four public entities.
Only persons acting under the color of state law, however, can be held liable for constitutional
violations under § 1983. See 42 U.S.C. § 1983. This does not include states (see Arizonans for
Official English v. Arizona, 520 U.S. 43, 69 (1997)), their agencies (see Howlett v. Rose, 496
U.S. 356, 365 (1990)), or purely private parties (see Lugar v. Edmondson Oil Co., 457 U.S. 922,
930 (1982).
1.
Commonwealth Defendants
The amended complaint names the Pennsylvania Department of Community and
Economic Development (“DCED”), Alan Walker and Steven Fishman as the “Commonwealth
defendants.”
Plaintiffs acknowledge that DCED is an agency of the Commonwealth of Pennsylvania
(also known as a “state agency”), of which Alan Walker and Steven Fishman are employees.
Specifically, Walker is the Secretary of the DCED and is sued in his official capacity for
purposes of plaintiffs’ request for injunctive relief. See Am Compl. ¶ 13, ECF No. 54. Fishman
is named in his individual capacity as a “spokesman and counsel for, and on behalf of . . . .
DCED.” Id.
16
a.
DCED
It is well-settled that states do not constitute ‘persons’ to which liability can attach, for
purposes of § 1983. See Arizonans for Official English, 520 U.S. at 69; Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989). This is equally true of governmental agencies which are
arms of the state – i.e., state agencies. See e.g., Howlett, 496 U.S. at 365. Plaintiffs admit that
defendant DCED is a “Commonwealth of Pennsylvania agency” which was empowered to
proceed with the voluntary relocation program, and subsequent eminent domain proceedings,
against the residents affected by the underground mine fire in the Borough of Centralia. Am.
Compl. ¶¶ 13, 33, ECF No. 54. Such factual allegations bring DCED squarely within the
definition of a state agency contemplated by the courts and immune from suit under § 1983.
Accordingly, this defendant will be dismissed from this action and no further claims will proceed
against it.
b.
Walker
The immunity granted to state agencies also extends to state officials who are sued in
their official capacity for damages. See Arizonans for Official English, 520 U.S. at 69, n. 27.
State officials sued in their official capacity for injunctive relief, however, may be liable under
§ 1983. See Will, 491 U.S. at 71, n. 10. Here, plaintiffs have carefully plead that defendant
Walker is being named in his official capacity for purposes of plaintiffs’ request for injunctive
relief, and not damages. See Am. Compl. ¶ 13, ECF No. 54. Although the Commonwealth
defendants dismiss the significance of this distinction, it is a significant one which allows
plaintiffs’ claims against defendant Walker to proceed. In particular, defendant Walker may be
sued in his official capacity for purposes of the injunctive relief to which plaintiffs claim they are
17
entitled.
c.
Fishman
Although a claim against defendant Fishman in his individual capacity is not barred by
the immunity principles discussed above, plaintiffs must plead factual allegations sufficient to
demonstrate that the official-defendant personally caused the alleged constitutional injury. See
Graham, 473 U.S. at 166. Plaintiffs have entirely failed to make such a showing here. The
amended complaint is void of factual allegations pointing to any behavior on the part of
defendant Fishman. Indeed, his name appears only in the paragraph of the amended complaint
introducing the parties. See Am. Compl. ¶ 13, ECF No. 54. Although the court does not require
“detailed factual allegations” of Fishman’s behavior, mere labels and conclusions will not do.
See Twombly, 550 U.S. at 555. Here, plaintiff alleges simply that Fishman has “unlawfully
acted as the spokesman and counsel for, and on behalf of” DCED. Am. Compl. ¶ 13, ECF No.
54. This bare assertion is insufficient to state a cognizable claim against defendant Fishman
under § 1983. Accordingly, this defendant will be dismissed from this action.
2.
RJG and Blaschak Defendants
Plaintiff names four private parties in this suit – the law firm of Rosenn Jenkins and
Greenwald, LLP, individual attorneys John T. Zelinka and Gary Taroli from that firm, and
Blaschak Coal Corporation. Despite their status as private parties, plaintiffs claim these
defendants are subject to § 1983 liability by virtue of their association and conspiracy with state
actors.
In order to come within the purview of § 1983 liability, plaintiff must show that these
defendants acted under color of state law by pointing to some action, undertaken by them, that is
18
“fairly attributable” to the state. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 937
(1982); Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3rd Cir. 1999). To do so,
plaintiffs must show (1) that the defendants’ acts were “the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the state or by a person for whom the
State is responsible” and (2) that the defendants may fairly be said to be state actors. Id.
a.
RJG and Attorneys Zelinka and Taroli
Attorneys performing their traditional functions will not be considered state actors solely
on the basis of their position as officers of the court. Angelico, 184 F.3d at 277; and see Poke
County v. Dodson, 454 U.S. 312, 318 (1981). Thus, private attorneys cannot be held liable under
§ 1983 for unilateral actions which they took on behalf of their clients as their private attorneys.
Drum v. Nasuti, 648 F.Supp. 888, 897 (E.D. Pa. 1986). Rather, to satisfy the “color of state law”
element, plaintiff must allege that defendants were not merely performing lawyers’ traditional
functions, but were attempting to exercise some sort of official authority over them. Repoli v.
Cuoco, 316 Fed.Appx. 188, 190 (3rd Cir. 2009) (unpublished opinion); and see Dodson, 454 U.S.
at 325.
Here, plaintiff charges that RJG and attorneys Zelinka and Taroli coordinated and
asserted certain actions and interests of their clients, which plaintiff believes to be unlawful, and
which resulted in the deprivation of plaintiff’s federally guaranteed rights. See Am. Compl. ¶¶
11-12, ECF No. 54. The actions described – asserting the rights and interests of one’s clients –
fall entirely within the realm of traditional lawyering. The fact that plaintiff was harmed as a
result of defendants’ actions is a function of the adversarial system of law, and does not work to
impute liability on these attorneys. Moreover, there are no allegations suggesting that defendants
19
exercised any official authority over their clients. Consequently, these defendants will be
dismissed from this action.
b.
Blaschak Corp. and Conspiracy
Plaintiff also attempts to bring these private parties – including defendant Blaschak –
within the purview of a § 1983 claim by alleging a conspiratorial relationship between these
parties and state actor, the CCRA. A private party who willfully participates in a joint conspiracy
with state officials to deprive a person of a constitutional right acts “under color of state law” for
purposes of § 1983. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Abbott v. Latshaw, 164
F.3d 141, 147 (3rd Cir. 1998). Although the precise contours of such a conspiracy have not been
clearly delineated, the amended complaint does not appear to properly allege a conspiracy
between Blaschak, RJG and CCRA sufficient to cloak the private defendants with the “color of
state law.” See Angelico, 184 F.3d at 278. Here, plaintiffs unhesitatingly assert that “during the
course of the efforts to extinguish the fires . . . . a plan was hatched . . . . to use the fire as a
pretext to justify the removal of all the residents of the Borough . . . . ” See Am. Compl. ¶ 45,
ECF No. 54. Plaintiff further alleges that “this conspiracy also involved a number of local and
state public officials, and other private persons, all of whose identities are not yet known, but will
be developed through discovery.” Id. Such allegations hardly demonstrate the type of joint
action or understanding required to support a conspiracy claim. See Kost, 1 F.3d at 185
(conspiracy claim requires a showing that defendants somehow reached an understanding with at
least one of the state defendants to deny plaintiffs their civil rights); Abbott, 164 F.3d at 148
(alleging that defendant acted “at the instance and request of” the state and depicting joint action
between the two parties which resulted in the deprivation of plaintiff’s rights was sufficient to
20
satisfy the standards of notice pleading and bring defendant’s acts within the ambit of state
action); Leshko v. Servis, 423 F.3d 337, 342 (3rd Cir. 2005) (citing Rendell-Baker, 457 U.S. 830,
840-41 (1982) (state-hired private contractors are not automatically state actors under § 1983,
even if the state is their only patron). Plaintiff’s claims are nothing more than conclusory
allegations, unsupported by fact and which the court need not accept at true. See Twombly, 550
U.S. at 555.
Accordingly, the court does not find that any of the private defendants are state actors for
purposes of this § 1983 action. These defendants will therefore be dismissed from this suit.
3.
CCRA
In the amended complaint plaintiff points out that the CCRA is a “municipal creature”
that acted on behalf of the Commonwealth of Pennsylvania to relocate residents of the Borough
of Centralia away from the area affected by the mine fires. Am. Compl. pp. 15, 19, ECF No. 54.
The CCRA does not dispute that it is a state actor for purposes of § 1983 liability, and does not
claim that it is immune from suit as do the other defendants. Accordingly, plaintiff Koschoff’s
claims may proceed against the CCRA as a state actor which may be liable under § 1983.
Having decided that only defendants Walker and the CCRA may be liable under § 1983,
the court turns to whether the claims against them survive Walker and the CCRA’s motions to
dismiss which raise the following pertinent arguments: first, that all claims are bared by the
doctrines of res judicata, collateral estoppel and Rooker-Feldman; and second, that plaintiff fails
to state a claim upon which relief can be granted under any of the causes of action raised in the
amended complaint.
21
E.
CLAIM AND ISSUE PRECLUSION
The CCRA first argues that all of plaintiff’s claims are barred by res judicata and/or
collateral estoppel. (See Doc. No. 65, p.19). Specifically, defendant claims that the
Pennsylvania state court eminent domain proceedings bar this court from examining the
constitutional issues now raised by plaintiffs. The court need not delve deeply into the doctrines
of either res judicata or collateral estoppel because neither doctrine is implicated by the federal
claims before this court. Only the claims of plaintiff Koschoff remain to be considered on the
merits, and it is undisputed that he was in no way involved in the condemnation proceedings that
were conducted in the state court action. The parties agree that the declaration of taking was not
filed against Koschoff until July 1, 2010 – a full fifteen years after the conclusion of the other
plaintiffs’ condemnation proceedings.
Both claim and issue preclusion require that the parties in a prior and latter suit be
identical or in privity to each other. See Chada v. Chada, 756 A.2d 39, 42-43 (Pa. Super 2000)
(res judicata requires identity of persons and parties to both actions; an issue may be precluded if
the party against whom it was asserted was a party or in privity with a party in the prior case).
Koschoff was clearly not a party to these state court eminent domain proceedings, and there is
also no indication that he was in privity with any of the property owners involved in those
proceedings. Without such a relationship, neither claim nor issue preclusion applies to plaintiff’s
claims before this court.
F.
ROOKER-FELDMAN
Defendant CCRA also argues that all of plaintiff’s claims are barred by the RookerFeldman doctrine. In certain circumstances, where a federal suit follows a state suit, the Rooker-
22
Feldman doctrine prohibits a federal district court from exercising jurisdiction over the later-filed
federal action. See Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,
163-64 (3rd Cir. 2010); Rooker v. Fidelity Trust, Co., 263 U.S. 413, 416 (1923) (holding that no
federal court, other than the Supreme Court, may entertain a proceeding to reverse or modify a
judgment of a state court); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983) (holding that federal district court lacked subject-matter jurisdiction to review the
decision of a District of Columbia high court determining application of a local rule to the case
before it).
Specifically, the doctrine prevents “cases brought by state-court losers challenging statecourt judgments rendered before the district court proceedings commenced” and inviting review
and rejection of those judgments. Lance v. Dennis, 546 U.S. 456, 460 (2006); and see Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The doctrine had been
expanded by the lower federal courts to preclude any federal claim that was “inextricably
intertwined with an issue adjudicated by a state court.” See e.g., Walker v. Horn, 385 F.3d 321,
329, 332 (3rd Cir. 2004) (federal claim was barred because granting the relief requested would
require the district court to conclude that the state court made an incorrect factual or legal
determination); In re Knapper, 407 F.3d 573, 580 (3rd Cir. 2005) (if federal relief can only be
predicated upon a conviction that the state court was wrong, federal claim is barred).
The Supreme Court suppressed this expansive application in Exxon Mobil by reiterating
the “limited circumstances” in which the doctrine acts to bar a federal district court from
exercising subject-matter jurisdiction in an action it would otherwise be empowered to
adjudicate. See Exxon Mobil Corp., 544 U.S. at 291. The Supreme Court explained that
23
Rooker-Feldman is not implicated simply because a party attempts to litigate in federal court a
matter previously litigated in state court so long as the federal plaintiff presents some
independent claim; albeit one that denies a legal conclusion that a state court has reached in a
case to which he was a party. See Id. at 293; Fox Rothschild LLP, 615 F.3d at 166.
Breaking down the holding of Exxon Mobil, the Third Circuit in Fox Rothschild LLP,
enumerated four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the
federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state-court
judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the
plaintiff is inviting the district court to review and reject the state judgments. See Id. at 166. In
the instant matter, plaintiff does not proceed past the first requirement of applying the RookerFeldman doctrine: he did not lose in state court. On this record, there is no indication that the
declaration of taking filed against Koschoff in July 2010 ever proceeded through a formal and
final state court judgment. Thus, the first and third requirements of applying the RookerFeldman doctrine are not met and Koschoff’s claims against defendants Walker and the CCRA
are not barred.
G.
FAILURE TO STATE A CLAIM
Turning to the merits of plaintiff’s claims, the court now addresses whether plaintiff
states a claim upon which relief can be granted based on any of its legal theories – that is, First
Amendment, due process, equal protection, civil conspiracy, and the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”). The court addresses each of
these theories in turn.
24
1.
First Amendment Claim
A § 1983 claim predicated on a First Amendment retaliation theory requires plaintiff to
show that (1) he engaged in protected activity, (2) defendants’ retaliatory action was sufficient to
deter a person of ordinary firmness from exercising his rights; and (3) there was a causal
connection between the protected activity and the retaliatory action. See Lauren W. ex rel. Jean
W. v. DeFlaminis, 480 F.3d 259, 267 (3rd Cir. 2007); Thomas v. Independence Twp., 463 F.3d
285, 296 (3rd Cir. 2006).
The requisite causal connection is established when plaintiff shows either: (1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.
See DeFlaminis, 480 F.3d at 267; Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3rd
Cir. 1997).
Here, the amended complaint is devoid of any factual allegations forming the basis of a
First Amendment claim, let alone demonstrating the requisite elements identified above.
Although plaintiff makes a passing reference to a violation of his First Amendment rights, such a
bald assertion does not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See
Twombly, 550 U.S. at 555. Plaintiff identifies no protected activity in which he engaged prior to
any retaliatory action being taken. In the absence of such allegation, the court will not surmise the
basis for a properly plead claim. Accordingly, plaintiff’s First Amendment violation claim will
be dismissed.
2.
Due Process Claim
In assessing a substantive due process claim that challenges the taking of property by state
25
officials, the court applies a “shocks the conscience” standard. See United Artists Theatre
Circuit, Inc. v. Township of Warrington, PA, 316 F.3d 392, 399-401 (3rd Cir. 2003); Whittaker v.
County of Lawrence, 437 Fed.Appx. 105, 109 (3rd Cir. 2011) (unpublished opinion). In other
words, violation of plaintiff’s substantive due process rights turns on whether the conduct of
defendant CCRA amounts to an abuse of official power that “shocks the conscience.” Id.; see
County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (“the substantive component of the
Due Process Clause is violated by executive action only when it ‘can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.’ ”) As the Third Circuit has made
clear, in cases (such as the instant matter) arising from land-use decisions, this standard requires
more than bad faith or improper motive, and precludes a district court from acting as a zoning
board of appeals. See United Artists Theatre Circuit, Inc., 316 F.3d at 399, 402 (recalling that
the core concept of due process is protection against arbitrary action and only the most egregious
official conduct); and see Whittaker, 437 Fed.Appx. at 109 (allegation that officials did not
follow state law in taking plaintiff’s property, without more, does not rise to the level of a federal
constitution substantive due process violation).
The court presumes that plaintiff’s allegation that their real property was taken from them
by fraudulent and improper means forms the basis of their due process claim. Plaintiff also
alleges that defendants used contrived evidence to effectuate the relocations and the basis for the
takings have never been addressed in a proceeding of any sort. See Am. Compl. ¶ 1, ECF No.
54. Presumably, such behavior would violate Pennsylvania’s law regarding eminent domain
proceedings. While some violations of state law may shock the conscience, not every such
violation is “constitutionalized” by applying the substantive due process clause. See Whittaker
26
437 Fed. Appx. at 109. This case appears to fall squarely within the latter category. As the
courts have explained, the due process clause is not meant to authorize review of state actors’
compliance with state law. See Id. Certainly the courts of Pennsylvania are bound by their own
law on how eminent domain proceedings may be conducted. But it is not within the province of
the federal courts to review such compliance. Id. Violations of state law might constitute
conscience-shocking behavior when it also involves corruption, self-dealing, bias against an
ethnic group, or other additional facts. Id. But no such conduct is alleged here, nor can any be
inferred on this record. Accordingly, plaintiff does not state a claim for violation of his
substantive due process rights under the United States Constitution.
3.
Equal Protection Claim
A traditional Fourteenth Amendment equal protection claim requires plaintiffs to plead,
among other things, that they are members of a protected class or group. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Because, however, plaintiff does not allege
that he is a member of a protected group or class of citizens, the court considers his equal
protection claim under the “class of one” theory. See Olech, 528 U.S. at 564 (allowing equal
protection claims to go forward where plaintiffs did not allege membership in a class or group).
To state a claim under such a legal theory requires a plaintiff to show that: (1) the defendant
treated him differently from others similarly situated, (2) the 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 (3rd Cir. 2006); see Olech, 528 U.S. at 564.
Allegations of irrational and wholly arbitrary treatment, even without allegations of
improper motive, are sufficient to state an equal protection claim for relief. Olech, 528 U.S at
27
565; Phillips v. County of Allegheny, 515 F.3d 224, 243 (3rd Cir. 2008). A claim also need not
specifically name similarly situated individuals or identify differently-handled situations.
See Olech, 528 U.S. at 565 (general allegation that similarly situated property owners had been
asked for a different easement could be fairly construed to state an equal protection claim).
CCRA argues that plaintiff fails to state a claim under the “class of one” theory because
the amended complaint lacks sufficient allegations concerning whether the Netchels were
similarly situated to plaintiffs. See Def. Mot. Dismiss pp. 31-32, ECF No. 65. Defendant
maintains that plaintiff must plead specific facts showing that the Netchels are identically
situated to plaintiff. But defendant’s argument ignores the holding of Olech which relaxes the
“class of one” pleading requirements by negating the need for specificity. See Phillips, 515 F.3d
at 244. The amended complaint alleges that the Netchel property was located within a mile of
plaintiff’s property, in the heart of the fire impact area, and was subject to the exact same
declaration of taking as the plaintiff. See Am. Compl. ¶¶ 46, 56, ECF No. 54. It is further
alleged that, at some point, the Netchels initiated litigation against the authorities who were
carrying out the condemnation proceedings and subsequently entered into a settlement agreement
with them. Id. at ¶¶ 48, 56. As a result of the agreement, the CCRA returned to the Netchels
their fee simple interest in their property and the declaration of taking was withdrawn. Id.
Finally, plaintiff allegedly did not receive the same “arrangement” as the Netchels and, thus, was
denied the equal protection of the law. These allegations, for purposes of a motion to dismiss,
sufficiently state that the Netchels were similarly situated to plaintiff.
Defendant additionally argues that the allegations show only that defendants believed
there was an advantage to settling the Netchel litigation – which is not an equal protection
28
violation. See Def. Mot. Dismiss p. 32, ECF No. 65. This argument essentially claims that
plaintiffs were not in fact similarly situated to the Netchels, and that there did exist a rational
basis for the treatment they received as opposed to what plaintiffs received. Defendant’s
argument may, ultimately, prove successful. But it is not one the court may decide on the
pleadings.
Defendant’s reliance on Holt Cargo Systems, Inc. v. Delaware River Port Authority, 20 F.
Supp. 2d 803 (E.D. Pa. 1998) (Shapiro, J.), therefore, is misplaced. It is true that the court in
Holt deemed plaintiff to be not similarly situated to its competitors who received more favorable
contract terms than plaintiff. Id. But this determination was made on a motion for summary
judgment which considered all the evidence of record and relied on deposition testimony in
reaching that conclusion. A motion to dismiss considers only the pleadings and does not look to
the type of extrinsic evidence that the court in Holt relied on.
Having sufficiently plead allegations that state an equal protection claim, plaintiffs may
proceed with this claim against defendants Walker and the CCRA under a “class of one” theory.
4.
Other Claims
The amended complaint contains passing reference to RICO and plaintiff’s rights under
the Constitution and laws of Pennsylvania to be free from political oppression, fraud and of
arbitrary and capricious government action devoid of proper purposes. See Am. Compl. ¶¶ 1,9,
ECF No. 54. The remainder of the amended complaint contains no more specific factual or legal
allegations with respect to RICO or any state law cause of action. Therefore, because the court
cannot discern any further cognizable claims, all other claims will be dismissed.
29
III.
CONCLUSION
For the reasons stated above, the court will grant in part and deny in part defendants’
motions to dismiss the amended complaint. The court will dismiss with prejudice all of the
claims brought by the Hynoski and Mervine plaintiffs. The court will also dismiss from this
action defendants RJG, Trapoli, Zelinka, Blaschak, Fishman and DCED along with plaintiff’s
First Amendment, Due Process, RICO and state law claims. No further opportunity to amend the
complaint will be granted as plaintiffs have already been given sufficient opportunity to cure
these pleading deficiencies. Remaining in this action is plaintiff Koschoff’s equal protection
claim against defendants Walker and CCRA. An appropriate order is attached.
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
30
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BONNIE HYNOSKI,
STEPHEN HYNOSKI,
CHRISTINE HYNOSKI, TOM HYNOSKI,
THE BOROUGH OF CENTRALIA,
HAROLD MERVINE, JOHN KOSCHOFF,
HELEN HYNOSKI AND
WALTER HYNOSKI,
:
:
:
:
:
:
:
:
Case No. 4:10-CV-2222
Plaintiffs
:
:
v.
:
(Judge Brann)
:
:
COLUMBIA COUNTY
:
REDEVELOPMENT AUTHORITY,
:
ROSENN JENKINS AND GREENWALD, :
LLP, JOHN T ZELINKA, GARY TAROLI, :
BLASCHAK COAL CORP., STEVEN
:
FISHMAN, COMMONWEALTH OF
:
PENNSYLVANIA, DEPT. OF
:
COMMUNITY AND
:
ECONOMIC DEVELOPMENT AND
:
C. ALAN WALKER,
:
:
Defendants.
:
ORDER
AND NOW, this 19th day of April, 2013, the defendants’ motions to dismiss (ECF Nos.
56, 57, 58, 59) the amended complaint (ECF No.54) are hereby GRANTED IN PART and
DENIED IN PART, as follows:
1.
Defendants Rosenn Jenkins and Greenwald LLP, Gary Taroli and John T.
Zelinka’s motion to dismiss (ECF No. 56) is GRANTED with respect to
31
plaintiffs’ claims brought under 42 U.S.C. § 1983 against these defendants;
2.
Defendant Blaschak Coal Corp.’s motion to dismiss (ECF No. 59) is GRANTED
with respect to plaintiffs’ claims brought under 42 U.S.C. § 1983 against this
defendant;
3.
The Commonwealth defendants and the Columbia County Redevelopment
Authority’s motions to dismiss (ECF Nos. 57, 58) are GRANTED IN PART and
DENIED IN PART as follows:
a.
The motions are GRANTED with respect to the statute of limitations
having run against plaintiffs Bonnie, Stephen, Walter and Christine
Hynoski; and Lamar and Lana Mervine;
b.
The statute of limitations has not run against plaintiff John Koschoff.
However, the motions are GRANTED with respect to plaintiff Koschoff’s
First Amendment, Due Process, RICO and state law claims;
c.
The motions are DENIED with respect plaintiff Koschoff’s Equal
Protection claim;
d.
The motions are DENIED with respect to plaintiff Koschoff’s claims
brought under 42 U.S.C. § 1983 against defendant Walker; and
4.
Defendants’ joint motion to stay discovery (ECF No. 108) is denied as moot.
Plaintiff Koschoff shall continue discovery with respect to his Equal Protection
claim against defendants Walker and CCRA.
5.
The Clerk of Court is directed to amend docket entry 54 consistent with the
court’s August 11, 2011 order (ECF No. 103).
32
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
33
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