PONDEXTER v. THE ALLEGHENY COUNTY et al
Filing
51
MEMORANDUM OPINION indicating that, for reasons stated within, Defendant's oral Motion to enjoin Plaintiff from filing further claims prior to receiving certification of those claims from a Magistrate Judge (See 14 ) and Defendant's Supplemental Motion to Enjoin Plaintiff from Proceeding with Claims Prior to Receiving Certification 26 are denied. An appropriate Order follows.Signed by Judge Nora Barry Fischer on 11/4/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EARL A. PONDEXTER,
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Plaintiff,
vs.
THE ALLEGHENY COUNTY (proper),
THE ALLGHENY COUNTY HOUSING
AUTHORITY, DAN ONORATO,
JAMES T. ZAPF, FRANK AGGAZIO,
THOMAS MCPOYLE, JOHN JOYCE, et al,
Defendants.
Civil Action No. 11-857
MEMORANDUM OPINION
Presently before this Court is a Motion by Defendant Allegheny County Housing
Authority (Hereinafter “ACHA”) and representatives of same, James T. Zapf, Frank Aggazio,
Thomas McPoyle and John Joyce (Collectively “Defendants”)1 to enjoin Pro Se Plaintiff Earl A.
Pondexter from filing lawsuits against them without requesting certification from a United States
Magistrate Judge that the claims raised are meritorious. Plaintiff argues that such an injunction
is not warranted.
Although the Motion was initially made orally by ACHA, Defendants
subsequently filed a Supplemental Motion and the issues have been exhaustively briefed and
argued to this Court. (Docket Nos. 14, 24, 25, 26 and 29). Upon consideration of the parties‟
positions and for the following reasons, Defendants‟ Motion [26] is denied and an injunction will
not issue.
1
Allegheny County and Dan Onorato are also defendants in this case, but they have not joined in this Motion.
1
I.
Factual Background:
Plaintiff has filed three lawsuits against ACHA, including the current action, in the
United States District Court for the Western District of Pennsylvania. The following is a
summary of each.
a. 2001 Lawsuit:
In November 2001, Plaintiff filed his first suit against ACHA in this District (Civil A. 01cv-2161), alleging race and disability discrimination because Plaintiff was allegedly denied a
two-bedroom voucher, as a participant in the Section 8 Program in 1999. In September 2007, the
Court granted ACHA‟s Motion for Summary Judgment, as Plaintiff‟s claims were barred by the
applicable statute of limitation. (Civil A. 01-cv-2161, Docket No. 137). Plaintiff appealed and
the judgment was affirmed by the Third Circuit on June 22, 2009. (Id. at Docket No. 151).
b. 2004 Lawsuit:
In April 2004, Plaintiff filed a second suit against ACHA in this District (Civil A. 04-cv536). Here, Plaintiff alleged race and disability discrimination, in connection with his eviction
from his residence in 2001. All defendants moved to dismiss the Complaint. HUD‟s and Green
Meadows‟ Motions to Dismiss were granted, but Plaintiff was permitted to proceed with his case
against ACHA. Thereafter, in October 2007, this Court granted ACHA‟s Motion for Summary
Judgment, as Plaintiff failed to submit evidence that ACHA‟s actions were discriminatory or
illegal. (Civil A. 04-cv-536, Docket No. 102). Plaintiff appealed and the judgments on the
Motions to Dismiss and the Summary Judgment Motion were affirmed by the Third Circuit on
June 22, 2009. (Id. at Docket No. 107).
2
c. Current 2011 Lawsuit:
Plaintiff filed a Complaint alleging Racial Discrimination and Racial Retaliation against
Defendants, on June 30, 2011.2 (Docket No. 4). Plaintiff argues that Defendants are “wantonly
and maliciously denying the Plaintiff a full, „Fair and Equal Opportunity‟ to use and enjoy a
dwelling on the basis of racism and retaliation.” Id. at ¶ 1. Plaintiff contends that on May 10,
2010, he submitted a completed and signed Allegheny County Low Income Housing Application
to ACHA. Id at ¶ 23. Subsequent to said submission, Plaintiff asserts that he did not receive any
notification regarding his eligibility or ineligibility for low income housing assistance,
administered through ACHA. Id at ¶ 24. On May 28, 2010, Plaintiff filed a 903 HUD FHEO
discrimination complaint against ACHA with the local Fair Housing Partnership Program. Id at
¶ 24. Plaintiff was informed that HUD FHEO would not review or investigate the HUD FHEO
903 complaint and closed the case. Id at ¶ 25. Thereafter, on December 13, 2010, Plaintiff filed
a Pennsylvania Human Relations Act Complaint against ACHA. Id at ¶¶ 25-26. On May 27,
2011, the Pennsylvania Human Relations Commission determined that insufficient evidence
existed to support Plaintiff‟s PHRA Complaint, finding that Plaintiff never filed an application
for low income housing assistance. Id at ¶ 27. Said complaint was dismissed on June 10, 2011.
Id. Thereafter, Plaintiff filed the instant Complaint in this Court. Id.
II.
Procedural Background:
During the August 10, 2011 Status Conference3, the Court heard the parties‟ positions
regarding Plaintiff‟s Prayer for Exigent Injunctive Relief contained in Plaintiff‟s “Planning For
Discovery & Conference of the Parties”, filed at Docket No. 7. (Docket No. 14).4 Defendants
2
Plaintiff cites numerous Federal and State statutes as grounds for his relief.
The transcript of said Status Conference was filed on August 23, 2011. (Docket No. 25).
4
At said Conference, Plaintiff provided the Court with the factual background of his claims, as well as the relief,
which he is seeking. Id. Defendants submitted exhibits consisting of emails from Plaintiff to Ms. Lloyd. Id.
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3
made an oral Motion to enjoin Plaintiff from filing further claims prior to receiving certification
of those claims from a Magistrate Judge. The Court indicated that it would take said Motion
under advisement.5 Id.
Thereafter, on August 23, 2011, Plaintiff filed a Pro Se Response to Judge Nora Barry
Fischer‟s Void Order of Court: Granting to Hold in Abeyance the Responsive Pleading and
Granting the Motion Enjoining the Plaintiff from Filing Further Claims Prior to Receiving
Certification from a Federal Magistrate Judge. (Docket No. 24). In said Response [24], Plaintiff
indicated that the Court granted Defendants‟ oral Motion to enjoin Plaintiff from filing further
claims prior to receiving certification of those claims from a Magistrate Judge. Id. However,
based on the foregoing, it is evident that the Court did not rule on Defendants‟ oral Motion to
enjoin Plaintiff from filing further claims prior to receiving certification of those claims from a
Magistrate Judge, but instead held said oral Motion in abeyance. (Docket Nos. 14 and 15).
Defendants then filed a Supplemental Motion to Enjoin Plaintiff from Proceeding with Claims
Prior to Receiving Certification, on August 24, 2011, (Docket No. 26), to which Plaintiff
responded (Docket No. 29).
III.
Parties’ Arguments:
Defendants contend that the Court should enter an order requiring Plaintiff to obtain
certification from a U.S. Magistrate Judge, prior to proceeding with this action, or filing, or
proceeding with any other federal or administrative actions against ACHA and other ACHA
5
In addition, Defendants made a second oral Motion to hold in abeyance the responsive pleading schedule, pending
the resolution of the Motions. Id. Said Motion for abeyance was granted during the August 10, 2011 hearing. Id.
On August 12, 2011, this Court entered an Order granting Defendants‟ August 10, 2011 oral Motion to hold in
abeyance the responsive pleading schedule and further ordering that Defendants‟ oral Motion to enjoin Plaintiff
from filing further claims prior to receiving certification of those claims from a Magistrate Judge was to be held in
abeyance. (Docket No. 15).
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representatives, in the future. (Docket No. 26 ¶ 22). Specifically, Defendants ask that the Court
enter the following Order:
1. Plaintiff‟s Complaint in this action shall be assigned to a U.S. Magistrate
Judge for review. If the Magistrate certifies the Complaint or portions of the
Complaint as non-frivolous, Plaintiff shall be entitled to proceed with the
Complaint or that portion of the Complaint determined to be non-frivolous.
The certification decision shall no have evidentiary value and shall not be in
any way dispositive of the merits of the claims. All proceedings in this action
are stayed until the U.S. Magistrate has made a determination.
2. In the event Plaintiff files any further administrative or federal court claims
against the ACHA, the ACHA‟s employees, officers, lawyers or any other
representatives in the future, all such filings shall be referred to a U.S.
Magistrate Judge for review of whether the case will be certified to proceed in
accordance with the procedure outlined above. The named Defendant(s) shall
not be required to respond to Plaintiff‟s claim until so directed by the
reviewing U.S. Magistrate Judge.
(Docket No. 26-3). In support of their request, Defendants maintain that Plaintiff is a serial
litigant, who has filed and repeatedly threatened frivolous litigation against them. (Docket No. 26
¶ 17). Defendants assert that Plaintiff‟s litigation against them has been on-going since 1999. Id.
at ¶ 2. They document several complaints lodged against them by Plaintiff. Id.at ¶¶ 3, 6-12. In
addition, Defendants note three lawsuits filed against ACHA by Plaintiff. Id. at ¶ ¶ 4, 5 and 14.
They indicate that Plaintiff intends to continue to initiate frivolous actions against them, given
Plaintiff‟s statements to them, during the August 10, 2011 Status Conference.6 Id. at ¶ 18.
Defendants also cite to Rule 1 of the Federal Rules of Civil Procedure, which states that
the Federal Rules of Civil Procedure should be construed and administered to secure the just,
speedy and inexpensive determination of every action and proceeding. (Docket No. 26 ¶ 19).
Defendants note that Rule 11 of the Federal Rules of Civil Procedure requires that all pleadings,
motions, or other papers not be brought for an improper purpose. Id. at ¶ 20. In addition, they
6
Defendants reference the following quotes from Plaintiff: (a) “I will litigate, will sue you, until I cannot stand or
breathe, until I‟m dead.” Id. at ¶ 16 (quoting Docket No. 25 at p. 28-29); (b) “I‟m going to do exactly what I‟ve
been doing, I‟m going to pursue and sue.” Id. (quoting Docket No. 25 at p. 29).
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maintain that their desired order is supported by Hill v. Carpenter, 323 Fed.Appx. 167 (3d. Cir.
2009), in which the Third Circuit recommended that the District Court consider adopting an
order requiring a particular pro se plaintiff to obtain certification from a Magistrate Judge, prior
to bringing any future actions. Id. at ¶ 21.
Finally, Defendants assert that Plaintiff has
disrespected the judiciary by way of repeated motions for recusal and allegations of misconduct
against Judges of the District Court. Id. at ¶ 17.
Plaintiff maintains that he is entitled to his day in court. (Docket No. 25, pg. 70, ln. 15).
Citing to the Seventh Amendment, Plaintiff articulated that it is his right, as a United States
citizen, “to come into any court in this country and plead my case and have my day in court.” Id.
at pg. 47-48, ln. 23-2. Plaintiff‟s Response to Defendant‟s Motion [26], further argues that an
injunction is not warranted.7 (Docket No. 29). Plaintiff then asserts that he is not attempting to
re-litigate civil actions 01-2161 or 04-0536.8 (Docket No. 29, pg. 1). Instead, Plaintiff contends
that he has lawfully and constitutionally commenced his prior actions, as well as the instant
action. (Id. at pg. 8).
IV.
Legal Standard:
This Court has previously addressed a motion to enjoin a pro se plaintiff from filing
actions against a particular defendant. In N’Jai v. Pittsburgh Board of Public Education, et al.,
2011 WL 2413339 (W.D.Pa. Jun. 10, 2011), this Court noted that the pro se plaintiff sued the
particular defendant eight times in this District. Id. However, this Court did not find the lawsuits
to amount to groundless or vexatious litigation and found them to be distinct from each other. Id.
7
Plaintiff asserts arguments, which pertain to issues which are not germane to the Motion currently pending before
this Court. As a result, the Court only references the arguments of the Plaintiff, which are germane to the instant
Motion.
8
These cases are described in section I, supra.
6
As a result, this Court determined that an injunction was not warranted. Id. The Court reaches
the same result here.
The United States Court of Appeals for the Third Circuit has held that if a district court
determines that a litigant‟s past and current lawsuits constitute a continuous pattern of
“groundless and vexatious litigation,” the All Writs Act, 28 U.S.C. § 1651(a),9 permits the court,
under exigent circumstances, to grant an Order enjoining the litigant from filing further actions
without the permission of the Court. See In re Vora, 2008 WL 4722516, at *2 (W.D.Pa. Oct. 21,
2008) (citing In re Oliver, 682 F.2d 443, 445-46 (3d Cir. 1982) (issuing an injunction because
the plaintiff had filed over 50 frivolous civil rights cases)).
However, the power conferred by the All Writs Act, “is limited by two fundamental
tenets of our legal system-the litigant‟s rights to due process and access to the courts.” Brow v.
Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993). As a result, in issuing such an injunction, the
Court must comply with three requirements. Crooker v. Delta Management Associates, Inc.,
2010 WL 1390868, at *4 (M.D. Pa. Apr. 1, 2010). First, the Court may not restrict the litigant
from filing claims absent exigent circumstances, such as a litigant‟s continuous abuse of the
judicial process by filing meritless and repetitive actions. Id. (citing Matter of Packer Ave.
Assoc., 884 F.2d 745, 747 (3d Cir. 1989)). Second, if the Court finds that the circumstances
warrant the imposition of an injunction, the Court must give notice to the litigant to show cause
why the proposed injunctive relief should not issue. Id. (citing Gagliardi v. McWilliams, 834
F.2d 81, 83 (3d Cir. 1987) (holding that “[a]fter a proper record has been established, the district
court will be in a better position to determine the appropriate action that should be taken.”).
Third, the scope of the injunction must be narrowly tailored to fit the particular circumstances of
9
“The Supreme Court and all Courts established by Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
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the case. Id. (citing Chipps v. United States Dist. Ct. for the Middle Dist. of Pa., 882 F.2d 72, 73
(3d Cir. 1989)).
Indeed, other Courts have enjoined overly litigious plaintiffs from filing actions involving
“groundless and vexatious litigation”.
See, e.g., In re Oliver, 682 F.2d at 446 (issued an
injunction because plaintiff filed over 50 civil rights, habeas corpus and other types of cases in
12 years); In re Vora, 2008 WL 4722516, at *1 (issued an injunction because the plaintiff filed
over 50 lawsuits against various governmental agencies over a 20 year period; the plaintiff‟s
filings would consistently exceed 50 pages; and the filings were often soiled or torn such that it
was difficult for the Clerk‟s Office to enter the documents in the Court‟s electronic filing
system); Crooker, 2010 WL 1390868, at *4 (issued an injunction against the plaintiff because he
had filed more than 100 civil actions across the country); Matter of Packer Ave. Assoc., 884 F.2d
at 747 (issued an injunction because the plaintiff filed 27 petitions re-litigating issues that had
already been disposed of in bankruptcy court).
However, “there is simply no support in the law for permitting an injunction prohibiting a
litigant from ever again filing a document in federal court.” Matter of Packer Ave. Assoc., 884
F.2d at 747. “Such injunctions are extreme remedies and should be narrowly tailored and
sparingly used.” In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982), see also, e.g. Sossamon v. Texas,
131 S. Ct. 1651, 1665 (2011); Crooker v. Delta Management Associates, Inc., 2010 WL
1390868, at *4 (M.D.Pa. Apr. 1, 2010)(citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir.
1993)). Courts of equity should pay particular regard for the public consequence in employing
the extraordinary remedy of an injunction. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 717
(1996).10
10
Moreover, “[a] plaintiff‟s litigiousness alone would not support an injunction restricting his [or her] filing
activities.” Id. Indeed, given Plaintiff‟s pro se status, his pleadings are “to be liberally construed,” Estelle v.
8
Hence, the district court may only enter an injunction directing that the litigant not file
any claims without first being granted leave of court. Abdul-Akbar v. Watson, 901 F.2d 329, 333
(3d Cir. 1990). But, such an injunction requiring leave of court, is typically ordered in situations
involving a litigant, who has repeatedly filed complaints alleging claims that have already been
fully litigated. Matter of Packer Ave. Assoc., 884 F.2d at 747, see also, e.g. Hill v. Carpenter,
323 Fed.Appx. 167 (3d Cir. 2009).
When a district court concludes that a litigant has abused the judicial
process by filing a multitude of frivolous […] cases in a relatively brief
period of time and will continue to file such cases unless restrained, […]
the court may enter an injunction directing that the litigant not file any
[…] [further] claims without leave of court.11
Abdul-Akbar v. Watson, 901 F.2d at 333. In seeking leave of court, the litigant must certify: “(1)
that the claims the litigant wishes to present are new claims never before raised and disposed of
on the merits by any federal courts; (2) that the litigant believes the facts alleged in the complaint
to be true; and (3) that the litigant knows of no reason to believe his [or her] claims are
foreclosed by controlling law.” Id. In addition, the injunction should state that upon a failure to
certify or upon a false certification, the litigant may be found in contempt of court and punished
accordingly. Id.
V.
Discussion:12
Initially, the Court notes that Plaintiff has been provided notice of ACHA‟s oral motion,
as well as their Supplemental Motion and he has had an opportunity to show cause why the
proposed injunctive relief should not issue.13 See Gagliardi, 834 F.2d at 83.
Gamble, 429 U.S. 97, 106 (1976), and his Complaint “must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
11
“The issuance of a pre-filing injunction is an extreme remedy that must be narrowly tailored and sparingly used.”
Brown v. City of Philadelphia, et al., 2009 WL 1011966, at *15 (E.D.Pa. Apr. 14, 2009) (citing Abdul-Akbar v.
Watson, 901 F.2d at 333).
12
The Court does not find Plaintiff‟s motions for recusal or Plaintiff‟s allegations of judicial misconduct to be
relevant to the issue of whether Plaintiff should be ordered to obtain certification before he may file this or any
future action against ACHA.
9
Plaintiff‟s three lawsuits against ACHA in this District do not constitute groundless or
vexatious litigation. Crooker v. Delta Management Associates, Inc., 2010 WL 1390868, at *4
(M.D. Pa. Apr. 1, 2010). Courts have imposed injunctions in cases where a plaintiff has filed a
multitude of lawsuits. See, e.g. In re Oliver, 682 F.2d at 443 (3d Cir. 1982); In re Vora, 2008 WL
4722516 (W.D.Pa. Oct. 21, 2008); Crooker, 2010 WL 1390868 (M.D.Pa. Apr. 1, 2010); Matter
of Packer Ave. Assoc., 884 F.2d 745 (3d Cir. 1989); Hill v. Carpenter, 323 Fed.Appx. 167 (3d
Cir. 2009). But, N’Jai v. Pittsburgh Board of Public Education, et al., 2011 WL 2413339
(W.D.Pa. Jun. 10, 2011), involved eight lawsuits and this Court determined that an injunction
was not warranted as eight lawsuits did not amount to groundless or vexatious litigation. Id.
Similarly, as Plaintiff has only filed three lawsuits against ACHA in this district, the fact that he
has had three lawsuits against ACHA in this District is not enough in this Court‟s mind, to
constitute groundless or vexatious litigation, especially given his pro se status.14
In addition, typically Courts only require leave of court in situations involving a litigant,
who has repeatedly filed complaints alleging claims that have already been fully litigated. Matter
of Packer Ave. Assoc., 884 F.2d at 747, see also, e.g. Hill v. Carpenter, 323 Fed.Appx. 167 (3d
Cir. 2009). The Court finds that Plaintiff‟s claims against ACHA have not been previously
litigated.
Specifically, the two prior actions which Plaintiff filed against ACHA involved
different allegations of discrimination, which occurred at different periods of time from that of
the present lawsuit. Although legally similar, the three lawsuits are factually distinct. First, in
November 2001, Plaintiff filed suit against it (Civil A. No. 01-cv-2161) alleging race and
13
Plaintiff voiced arguments in opposition to same during the August 10, 2011 Status Conference and also filed a
written response (Docket No. 29).
14
Defendants do not submit evidence that Plaintiff has a long history of filing frivolous and malicious complaints, as
was done in N’Jai, supra. Although Defendants contend that Plaintiff‟s actions are frivolous, they do not
substantiate that contention with facts. Admittedly, Plaintiff‟s prior two lawsuits against ACHA were decided at the
Summary Judgment stage (Civil A. 01-cv-2161, Docket No. 137 and Civil A. 04-cv-536, Docket No. 102), but that
alone does not indicate that Plaintiff‟s claims in those lawsuits were frivolous.
10
disability discrimination because Plaintiff was allegedly denied a two-bedroom voucher, as a
participant in the Section 8 Program in 1999. Second, in April 2004, Plaintiff filed suit against it
(Civil A. No. 04-cv-536) alleging race and disability discrimination, in connection with his
eviction from his residence in 2001.
Currently, Plaintiff is alleging racial discrimination and racial retaliation against them,
as he did not receive any notification regarding his eligibility or ineligibility for low income
housing assistance, administered through ACHA. (see Complaint, Docket No. 4 ¶¶ 1, 23, 24).
These claims are distinct from those asserted in Plaintiff‟s two prior actions against ACHA in
this court. Moreover, as his claims are new, Plaintiff‟s lack of success in prior lawsuits against
ACHA for unrelated claims is not determinative. As previously mentioned, some courts have
enjoined overly litigious plaintiffs from filing further actions or have entered an injunction
directing the litigant not to file claims without being granted leave of court. See, e.g. In re Oliver,
682 F.2d at 443 (3d Cir. 1982); In re Vora, 2008 WL 4722516 (W.D.Pa. Oct. 21, 2008);
Crooker, 2010 WL 1390868 (M.D.Pa. Apr. 1, 2010); Matter of Packer Ave. Assoc., 884 F.2d 745
(3d Cir. 1989); Hill v. Carpenter, 323 Fed.Appx. 167 (3d Cir. 2009). Unlike those cases,
Plaintiff‟s current claims have not been previously litigated.
Although Plaintiff‟s filings may be difficult to decipher, his current claims are based on
new facts. He has never brought a claim, in this Court, against ACHA related to his May 2010
Allegheny County Low Income Housing Application. (Docket No. 4). Therefore, it is clear that,
in this instance, Plaintiff is not re-litigating old claims and the Court does not find that exigent
circumstances exist to warrant the extraordinary remedy of an injunction. See Matter of Packer
Ave. Assoc., 884 F.2d at 747 (finding that exigent circumstances exist when a litigant continually
abuses the judicial process by filing meritless and repetitive actions).
11
In this Court‟s estimation, the requested injunction and review by a Magistrate Judge of
this Court, would not preclude the present lawsuit. Furthermore, despite what some would
consider Plaintiff‟s litigious nature, an Order enjoining him from filing future actions in this
Court against ACHA without leave of court would be overbroad. Accordingly, this Court will
not restrict his access to the judicial system simply because he has filed previous lawsuits and
threatens to continue to file lawsuits against ACHA. As this Court does not find that the present
lawsuit constitutes groundless or vexatious litigation, when considered against Plaintiff‟s prior
lawsuits, and will not issue an injunction against him, the Court need not address the scope of the
injunction which ACHA seeks.
VI.
Conclusion:
For the foregoing reasons, Defendant‟s oral Motion to enjoin Plaintiff from filing further
claims prior to receiving certification of those claims from a Magistrate Judge (Docket No. 14)
and Defendant‟s Supplemental Motion to Enjoin Plaintiff from Proceeding with Claims Prior to
Receiving Certification (Docket No. 26) are DENIED. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: November 4, 2011
cc/ecf:
All Counsel of Record
Earl A. Pondexter
P.O. Box 2311
Grant Street
Pittsburgh, PA 15219
(Regular & Certified Mail)
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