Opinion
Civil Action 20-822
01-19-2021
WILLIAM G. TOMKO, JR., t/d/b/a MISSIONARY PARTNERS, LTD., Plaintiff, v. BALDWIN BOROUGH, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss (ECF No. 12) be granted with respect to Counts I, II, III and IV, and that Count V be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
II. Report
Plaintiff William G. Tomko, Jr. (“Tomko”) individually and on behalf of Missionary Partners, Ltd. (“Missionary Partners”) brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Baldwin Borough (“the Borough”), Borough Manager Robert Firek (“Firek”) and Borough Engineer Jason Stanton (“Stanton”). Plaintiffs' claims arise out of certain actions by Defendants with respect to property owned by Missionary Partners in the Borough. Specifically, Tomko alleges that Defendants refused to act on Tomko's request for a grading permit and instead issued a stop work order. Further, they contend, Defendants sent police officers to surveil the property and threaten to arrest workers who arrived at the property to perform their tasks.
The caption of the First Amended Complaint identifies the Plaintiff as “William G. Tomko, Jr., t/d/b/a Missionary Partners, Ltd.” The Amended Complaint alleges in its introductory paragraph that Tomko is bringing this lawsuit on his own behalf and on behalf of Missionary as its general partner. The headings on each of the counts in the First Amended Complaint state that the count is being brought by “William G. Tomko, Jr., t/d/b/a Missionary Partners, Ltd., ” but each count seeks damages on behalf of both Tomko and Missionary. As a result, Tomko and Missionary will be sometimes collectively referred to as “Plaintiffs” where appropriate.
Pending before the Court is Defendants' motion to dismiss. For the reasons that follow, their motion should be granted with respect to Counts I, II, III and IV, and Count V should be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
A. Relevant Procedural History
Tomko commenced this action in June 2020 and later filed a First Amended Complaint in September 2020. Federal question jurisdiction stems from the civil rights claims, 28 U.S.C. § 1331, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a).
The Amended Complaint alleges violations of Plaintiffs' right to substantive due process as guaranteed by the Fourteenth Amendment to the United States Constitution (Count I) and the Pennsylvania Constitution (Count II), an inverse taking of property without compensation in violation of the Fifth Amendment (Count III), a conspiracy to violate their civil rights (Count IV) and a state law claim of breach of contract (Count V).
This claim is erroneously labeled as “Count VI.” The original Complaint included a claim of municipal liability in Count V which is not included in the Amended Complaint.
On October 2, 2020, Defendants filed a motion to dismiss (ECF No. 12) which has been fully briefed (ECF Nos. 13, 27). Tomko stipulated to the dismissal of Count II (ECF No. 27 at 15), but otherwise opposes Defendants' motion.
All facts in this section are derived from the Amended Complaint.
Tomko conducts business as the general partner of Missionary Partners, a Pennsylvania limited partnership located in Washington County, Pennsylvania. This dispute involves real property in Baldwin Borough, Allegheny County that consists of 80 acres primarily used as a fill site pending future commercial land development and includes three parcels (the “Property”).Tomko owned the Property beginning in the 1980's, and Missionary Partners became the property owner in 1997. (Am. Compl. ¶ 3, 8.)
On January 28, 2019, Missionary submitted a Grading Permit Application to the Borough that was to be considered concurrently with a National Pollutant Discharge Elimination System Permit (“NPDES Permit”). At the time of Missionary's application, the NPDES permit application was pending with the Pennsylvania Department of Environmental Protection (“PA DEP”) through the Allegheny County Conservation District. In the parties' previous dealings, the Borough deferred approval on pending grading permit applications until a NPDES permit was issued that approved the scope of grading activity.
For more than thirty years, Tomko, and then Missionary Partners, conducted grading and filling activity at the Property. According to the Amended Complaint, between 1989 and 2015, the Borough issued successive annual grading permits, first to Tomko and later to Missionary Partners, and no enforcement action was taken by the Borough to restrain or restrict these activities. (Id. ¶¶ 9-10.)
Missionary Partners and the Borough entered into an agreement in 2008 in which they agreed, among other things, to cooperate with respect to the timely approval of permits so that land development activities on the Property would continue. Tomko alleges that despite this agreement, the Borough engaged in a campaign beginning in July 2019 to falsely attribute illegal conduct to Tomko. The Borough did so by acting through its public employees, including Firek, and its professional engineer, Stanton. (Id. ¶¶ 32-33 & Ex. 1.)
On April 23, 2019, after three months of inactivity by the Borough, Missionary Partners provided information and drawings to Firek to support its Grading Permit Application. The Borough did not respond. Subsequently, on May 10, 2019, Emily Moldovan, the Borough's Community Development Manager, contacted Geotech, Missionary Partners' engineer, and requested a copy of the submitted plans in conjunction with the Borough's initial review of the Grading Permit Application. Geotech provided the plans on May 13, 2019. No further correspondence was sent by the Borough, nor was any fee calculated or additional information requested. (Id. ¶¶ 11-15.)
Despite the lack of review, Missionary Partners supplied various supplemental documents to provide its engineered plan to deposit fill and grade on the Property to create a level site for future development. However, the Borough took no action over the course of the next several months to review the pending Grading Permit Application or alternatively, to take any enforcement action against Tomko to cease grading and filling activities. (Id. ¶¶ 16-17.)
Tomko alleges that the Borough required some justifiable basis to delay action on the pending Grading Permit Application. That basis was provided by Defendant Stanton on behalf of his firm, Lennon, Smith, Souleret Engineering, Inc. (“LSSE”), which provided a detailed letter dated July 10, 2019 that materially misrepresented the history of operations by Tomko and Missionary Partners at the Property. (Id. ¶¶ 19, 33-35.) Thereafter, on July 12, 2019, Defendants Stanton and Firek then began to interfere with the free use of the Property, first by issuing “stop work orders, ” posting placards and erecting signs declaring the property as closed, and later, by threatening to have the police arrest anyone working on the site. (Id. ¶ 18.)
On July 29, 2019, the PA DEP issued a NPDES permit again approving grading and fill activities on the Property. Contrary to what it had done in the past, however, the Borough did not issue a grading permit. Tomko then supplied documents, drawings and other materials to the Borough to rebut the allegations made in the July 10, 2019 stop work letter. The Borough neither approved nor rejected the pending 2019 Grading Permit Application. Instead, it threatened law enforcement and legal action. (Id. ¶¶ 20-23.)
Because the Borough did not commence a hearing on the 2019 Grading Permit Application within sixty days of the date of receipt of the 2019 Grading Permit Application, Tomko requested a formal hearing before the Borough Council pursuant to the Borough Code in order to address the status of the 2019 Grading Permit Application. The Borough scheduled a meeting for September 17, 2019. (Id. ¶¶ 27-31.)
Before the scheduled meeting, Stanton provided two more letters to the Borough with additional comments resulting from a “second review.” Tomko alleges that these letters show a willful disregard for his property rights, namely because they mischaracterize Tomko's application and submittals, including a statement that: “With consideration to the revised submittals identified herein, it is evident that the applicant is planning to continue to use the property as a continual dump site out of convenience without ever intending to develop the property.” (Id. ¶¶ 24-26.)
A meeting was held by Borough Council on September 17, 2019. Tomko alleges that Borough Council provided no additional information during this meeting to address any deficiencies with the permit. Instead, the Borough, through Stanton and Firek, indicated that the grading permit was incomplete until Tomko agreed to provide detailed engineering to show a relocation of an existing sanitary sewer line that traverses the Property without an easement. According to the Amended Complaint, the Borough failed to take any action to either approve or deny the pending permit application, and instead sought to impose conditions and requirements that exceeded their authority. (Id. ¶¶ 27-30.)
Tomko alleges that throughout this time, the Borough, through Firek and other agents of the Borough, threatened police action, namely the arrest of Missionary Partners' workers who were working at the site. On August 29, 2019, Borough officials, acting at the direction of Firek and Stanton, informed a driver moving stockpiled materials at the site that “the Baldwin P.D. were permitted to arrest anyone who is illegally dumping on the site.” Further, and again at the direction of Firek and Stanton, Borough officials engaged in unlawful surveillance of the property, and recorded, photographed or otherwise clandestinely surveilled individuals working there. (Id. ¶¶ 36-42.)
The Borough then sought and obtained preliminary injunctive relief in the Court of Common Pleas of Allegheny County that enjoined Missionary Partners from grading activity on the Property. On November 26, 2019, Allegheny County Court of Common Pleas Judge Christine Ward modified the previously-issued preliminary injunction and permitted Missionary Partners to continue to deposit fill in a pre-determined area upon provision of adequate insurance and the Borough's assent. Tomko alleges that the Borough refused to accept certificates of insurance and failed to recognize the existing bonded amounts for the grading and fill activities. On January 21, 2020, Judge Ward vacated the preliminary injunction that had been entered on October 16, 2019. Thus, Tomko contends, Plaintiffs were improperly denied the use and benefit of the Property by the Borough and the individual defendants for a period of three and a half months. (Id. ¶¶ 38, 43-45.)
The Amended Complaint appears to be referencing a state court mandamus case filed by the Borough on October 10, 2019 at ¶ 19-14398.
According to the Amended Complaint, Firek and Stanton, without any justifiable cause or permission, photographed and or video recorded workers performing routine maintenance at the site and sought additional enforcement actions and contempt sanctions on November 26, 2019. The state court ultimately found in favor of Plaintiffs following an evidentiary hearing. Continuing thereafter on a near daily basis, Firek caused Borough employees to continue surveillance of the Property and other improper activities. At the direction of Firek and Stanton, Borough officials threatened the manager of the site with arrest. Firek dispatched the Baldwin Borough Police to surveil activity at the site. These actions were repeated on various dates in the months that followed. (Id. ¶¶ 36-42.)
Missionary Partners filed a revised grading permit application on March 3, 2020. The Borough and LSSE again sought additional information and offered irrelevant engineering comments, as well as the topic of relocating the sewer line. The Borough and the individual defendants also continued to engage in unlawful conduct directed at Missionary Partners. The Borough raised concerns of “late night dumping” and other purported complaints, while Defendant Firek stated that he would use the police department to surveil and monitor the individuals working at the site and to file criminal charges. (Id. ¶¶ 46-50.) Tomko alleges that the use of police surveillance and the threat of pursuing criminal charges is an abuse of legitimate borough powers and authority.
Tomko asserts that the regular police presence, surveillance and threats of arrest have damaged their business relationships and impaired their use of the Property. Plaintiffs claim to have sustained damages including costs and fees incurred from depositing fill at other locations, lost economic interest during the more than ninety-day period that the site was closed and lost economic opportunities with customers. (Id. ¶¶ 51-52.)
C. Discussion
1. Standard of Review
Both parties cite Rule 12(b)(6) of the Federal Rules of Civil Procedure as the relevant standard of review. Under Rule 12(b)(6), a 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 that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible, ” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged. If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
Tomko attached the 2008 Agreement between the Borough and Missionary Partners to the Amended Complaint. In turn, Defendants included as exhibits to their motion to dismiss certain public records from the state court actions on which they base their abstention arguments. See Tomko v. Council of Baldwin, No. GD 19-14579 (Allegheny County Oct. 15, 2019) (ECF No. 12 Ex. A); Borough of Baldwin v. Missionary Partners, No. GD 19-14398 (Allegheny County Oct. 10, 2019) (Id. Ex. B). In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits attached thereto and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In addition, “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Thus, the 2008 Agreement and the relevant public records may be considered in deciding Defendants' motion to dismiss without converting it to a motion for summary judgment.
Among other bases for their motion to dismiss, Defendants cite to three different abstention doctrines in support of their contention that the Court should abstain from exercising jurisdiction over this case. The United States Court of Appeals for the Third Circuit has stated that “dismissal without retention of jurisdiction on abstention grounds is in the nature of a dismissal under Federal Rule of Civil Procedure 12(b)(6).” Heritage Farms, Inc. v. Solebury Twp., 671 F.2d 743, 745 (3d Cir. 1982). But see National Collegiate Athletic Ass'n v. Corbett, 25 F.Supp.3d 557, 562-63 (M.D. Pa. 2014) (noting lack of consensus among federal courts as to whether Younger abstention is governed by Rule 12(b)(6), Rule 12(b)(1) or some other standard); Christian Action Network v. Maine, 679 F.Supp.2d 140, 143 n.2 (D. Me. 2010) (observing that Rule 12(b)(6) does not seem apt for Younger abstention because it is in the nature of a defense and depends upon assertions not ordinarily included in a complaint); 5B Wright & Miller § 1350 (stating that claims for federal abstention may be raised under Rule 12(b)(1)).
Here, the relevant facts are included in these exhibits, public records and the Amended Complaint, all of which properly may be considered. Accordingly, the Court will apply the Rule 12(b)(6) standard to the merits of the motion to dismiss as the distinction between the Rule 12(b)(1) or Rule 12(b)(6) standard is not significant to the Court's resolution of the motion. See Carsten v. Boylan, 2018 WL 1696649, at *2-3 (M.D. Pa. Apr. 6, 2018).
2. Abstention
Defendants first contend that the Court should abstain from exercising jurisdiction over this case, based on three abstention doctrines. Tomko takes the position that none of these doctrines apply.
Defendants also cite DeNinno v. Municipality of Penn Hills, 269 Fed.Appx. 153 (3d Cir. 2008), in passing, noting that it dismissed a case involving a grading permit application as “premature.” However, that case involved procedural due process and equal protection claims arising out of a permit (not substantive due process and takings claims), and the dismissal was based on an exhaustion doctrine, not abstention. Thus, DeNinno is inapposite.
Tomko also cites cases holding that a plaintiff's choice of venue should not be lightly disturbed. Smith v. HireRight Solutions, Inc., 2010 WL 2270541, at *3 (E.D. Pa. June 7, 2010). Venue is not a relevant issue here.
a. Younger Abstention
Defendants argue that this Court should abstain based upon the doctrine of Younger v. Harris, 401 U.S. 37 (1971), because there are ongoing state proceedings in which Plaintiffs' claims can be adjudicated. Tomko takes the position that none of these doctrines apply because the state court proceedings involve different parties and are materially distinct.
The Supreme Court has explained that Younger abstention applies in three “exceptional circumstances”:
First, Younger precluded federal intrusion into ongoing state criminal prosecutions. Second, certain “civil enforcement proceedings” warranted abstention. Finally, federal courts refrained from interfering with pending “civil proceedings involving certain orders ... uniquely in furtherance of the state courts' ability to perform their judicial functions.” We have not applied Younger outside these three “exceptional” categories, and today hold ... that they define Younger S scope.Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013) (citations omitted). See also ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014) (confirming the three categories of claims that fit within Younger abstention).
Defendants cite Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir. 2005), which permitted a wider use of Younger abstention no longer recognized post Sprint.
The state court proceedings to which Tomko, Missionary Partners and the Borough are parties are not state criminal proceedings. Similarly, they are not state civil enforcement proceedings as they were not commenced by the State in its sovereign capacity to sanction Tomko or Missionary Partners, and there are no other similarities to criminal actions, such as a preliminary investigation that culminated with the filing of formal charges. See ACRA Turf Club, 748 F.3d at 138. Finally, the pending state court actions between the Borough and Tomko and Missionary Partners do not involve certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions. Rather, one is a mandamus action brought by Tomko to compel the Borough to issue the grading permit and the other is brought by the Borough to enjoin Missionary Partners from further dumping on the site. Therefore, Younger abstention is inappropriate here.
b. Pullman Abstention
Pullman abstention is warranted “when difficult and unsettled questions of law must be resolved before a substantial federal constitutional question can be decided.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984) (citing Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941)). To abstain under Pullman, the Court must find the following three “special circumstances” exist in the case: “(1) [u]ncertain issues of state law underlying the federal constitutional claims brought in federal court; (2) [s]tate law issues amenable to a state court interpretation that would obviate the need for, or substantially narrow, the scope of adjudication of the constitutional claims; (3) [a] federal court's erroneous construction of state law would be disruptive of important state policies.” Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir.1991) (internal citations omitted). All three special circumstances must exist to warrant Pullman abstention. Id. If they exist, the Court “must then make a discretionary determination as to whether abstention is in fact appropriate under the circumstances of the particular case, based on the weight of these criteria and other relevant factors.” Id. When the policies underlying state or local laws are not being attacked, and “it is rather the application of those policies by a single township that is at issue, ” Pullman abstention is inappropriate. Heritage Farms, 671 F.2d at 748.
Defendants argue that because the handling of the grading permit application and the stop work order first must be evaluated under Pennsylvania law before any constitutional claims can be reached, Pullman abstention applies. As Tomko correctly notes, however, this action does not involve an “unconstrued state statute” that is “susceptible of a construction by the state judiciary, ” nor are any “uncertain issues of state law” implicated. Thus, abstention under Pullman is inapplicable here.
c. Colorado River Abstention
“Colorado River abstention covers the circumstance where the presence of concurrent state proceedings may indicate that a district court should abstain from the ‘contemporaneous exercise of concurrent jurisdiction[ ]' due to principles of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' This abstention is even more rare than ‘the three traditional categories' because, among other things, the pendency of proceedings in state court does not normally bar litigation in federal court of the same issues.” National City Mortg. Co. v. Stephen, 647 F.3d 78, 83-84 (3d Cir. 2011) (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 80, 817 (1976) (other citations omitted).
“A threshold issue that must be decided in any Colorado River abstention case is whether the two actions are “parallel.” If they are not, then the district court lacks the power to abstain.” Ryan v. Johnson, 115 F.3d 193, 196 (3d Cir. 1997). “Generally, cases are parallel when they involve the same parties and claims.” Id. If the cases are parallel, the court must weigh six factors to determine if abstention is appropriate. See Trent v. Dial Med. of Fla., Inc., 33 F.3d 217, 225 (3d Cir. 1994), superseded by statute on other grounds, see Nat'l City, 647 F.3d at 83.
Tomko argues that the cases are not parallel because different parties and claims are involved. With respect to the state court action he commenced, these proceedings involve efforts to obtain a grading permit. He does not seek monetary damages and Firek and Stanton are not parties to those cases. Likewise, Defendants' state court lawsuit against Missionary Partners relates to efforts to enjoin it from engaging in grading activities on the Property. While Defendants contend that “the predicate issues which would govern liability in this case are all being addressed in the state court actions” (ECF No. 13 at 12), simply put, these cases are not parallel. As Defendants have not met this threshold issue, the Court lacks the power to abstain under the Colorado River standard.
As none of these abstention doctrines apply in this case, the Court will turn to Defendants' alternative arguments for dismissal.
3. Substative Due Process Claim (Count I)
Plaintiffs alleges a substantive due process claim in Count I of the Amended Complaint. This claim is asserted under 42 U.S.C. § 1983, that provides that:
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 any 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 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
The Fourteenth Amendment prohibits a state actor from depriving “any person of life, liberty, or property, without due process of law.” “The substantive component of the Due Process Clause limits what government may do regardless of the fairness of the procedures that it employs.” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000). This “guarantee[s] protect[ion] against government power arbitrarily and oppressively exercised.” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
The parties agree that the Court of Appeals for the Third Circuit has held that even in a land use case, a defendant's actions must be “conscience shocking” in order to support a substantive due process claim. United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 399 (3d Cir. 2003). That test is not precise, see Lewis, 523 U.S. at 847, and “varies depending on the factual context, ” United Artists, 316 F.3d at 400.
Land ownership “is a property interest worthy of substantive due process protection.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) (citation omitted).
What is clear, however, is that this test is designed to avoid converting a federal court into a “zoning board of appeals.” Id. at 402. What “shocks the conscience” is “only the most egregious official conduct.” Lewis, 523 U.S. at 846. As the court in United Artists concluded:
every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority, but “[i]t is not enough simply to give these state law claims constitutional labels such as ‘due process' or ‘equal protection' in order to raise a substantial federal question under section 1983.”316 F.3d at 402 (quoting Creative Env'ts, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982)).
In Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir. 2004), the plaintiffs alleged overly strict application of ordinances relative to other developers, delays in issuing permits and approvals, unannounced inspections, and improper tax assessments. In holding that these actions did not represent conscience-shocking behavior, the Third Circuit Court of Appeals explained why the plaintiffs failed to support a violation of substantive due process:
Basically, the Eichenlaubs assert that zoning officials applied subdivision requirements to their property that were not applied to other parcels; that they pursued unannounced and unnecessary inspection and enforcement actions; that they delayed certain permits and approvals; that they improperly increased tax assessments; and that they maligned and muzzled the Eichenlaubs. With the exception of the previously discussed First Amendment retaliation claims, these complaints are examples of the kind of disagreement that is frequent in planning disputes. As counsel for appellants acknowledged during argument, there is no allegation of corruption or self-dealing here. The local officials are not accused of seeking to hamper development in order to interfere with otherwise constitutionally protected activity at the project site, or because of some bias against an ethnic group. There is no virtual “taking” as in Conroe Creosoting Co. v. Montgomery County, 249 F.3d 339 (5th Cir. 2001)].Id. at 286. See also Associates in Obstetrics & Gynecology v. Upper Merion Twp, 270 F.Supp.2d 633 (E.D. Pa. 2003) (conscience-shocking behavior alleged when municipality selectively closed plaintiff's medical office for the purpose of blocking the provision of abortion services); Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. 251, 257 (3d Cir. 2010) (“a bad-faith violation of state law ... does not meet the [conscience-shocking] standard”); Lindquist v. Buckingham Twp., 106 Fed.Appx. 768, 774 (3d Cir. 2004) (“without more, a violation of state law, even a bad faith violation of state law, will not support a substantive due process claim in a land-use dispute.”).
In response to Defendants' contention that they delayed acting upon the grading permit application because of Stanton's engineering opinion that Missionary Partners intended to continue to use the Property as a dump site rather than for development, Tomko asserts that:
Defendants' intentional and unconstitutional deprivation of Plaintiff's protected property interest “shocks the conscience, ” because Defendants acted with the selfserving and improper motive of coercing Plaintiff into providing for the relocation of a sanitary sewer line running through the Property, despite the fact that there exists no legal authority to compel a private property owner to fund the relocation of a public sanitary conveyance.(ECF No. 26 at 13) (internal citations omitted). Tomko also points to Defendants' actions of directing police officers to surveil the Property and display authority and threaten to arrest workers, which he claims far exceed normal zoning and code enforcement actions.
These arguments are unavailing because courts repeatedly have rejected the contention that a land-use decision is conscience-shocking because it was based on an improper motive. See United Artists, 316 F.3d at 402 (land use decisions “are matters of local concern, and such disputes should not be transformed into substantive due process claims based only on allegations that government official acted with ‘improper' motives.”) See also Locust Valley Golf Club, Inc. v. Upper Saucon Twp., 391 Fed.Appx. 195, 199 (3d Cir. 2010); Honey Brook Estates v. Honey Brook Twp., 2012 WL 2076985, at *15-16 (E.D. Pa. June 7, 2012).
Indeed, the “improper motives” test was explicitly rejected in United Artists in favor of the “shocks the conscience” test. See Eichenlaub, 385 F.3d at 286 n.9.
Similarly, courts have dismissed actions at the motion to dismiss stage because the allegations, even if true, do not represent conscience-shocking behavior. See DB Enterprise Developers & Builders, Inc., v. Miozzie, 394 Fed.Appx. 916, 919 (3d Cir. 2010); Johnston v. Dauphin Borough, 2006 WL 1410766, at *6 (M.D. Pa. May 22, 2006)); Campbell v. Conroy, 2015 WL 5007942, at *8 (W.D. Pa. Aug. 20, 2015); Kriss v. Fayette Cty., 827 F.Supp.2d 477, 494 (W.D. Pa. 2011) aff'd, 504 Fed.Appx. 182 (3d Cir. 2012).
Thus, even if the Borough had the “improper motive” of trying to induce Plaintiffs to pay for moving the sanitary sewer line, this would not be sufficient to state a claim. The fact that Defendants sent police to surveil the Property and prevent workers from entering the Property does not change this analysis. The Amended Complaint does not assert claims of corruption, self-dealing or interference with otherwise constitutionally protected activity at the project site.
Tomko does not contend that conscience shocking behavior is demonstrated by a “virtual taking” as described in Eichenlaub. In any event, as discussed below, Tomko has failed to state a claim for inverse taking.
In short, the Amended Complaint presents grievances raised by a permit applicant that do not rise to the level of conscience-shocking behavior. Because these allegations do not state a claim for relief under the substantive due process clause, Defendants' motion to dismiss Count I should be granted.
4. Takings Claim (Count III)
In Count III, Tomko alleges that Defendants have effectively taken the Property without compensation, thus asserting a claim of inverse condemnation. Defendants contend that the allegations of the Amended Complaint do not state a claim for either a full or partial taking.
Inverse condemnation is “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant.” United States v. Clarke, 445 U.S. 253, 257 (1980) (citation omitted). This “stands in contrast to direct condemnation, in which the government initiates proceedings to acquire title under its eminent domain authority.” Knick v. Township of Scott, Pa., 139 S.Ct. 2162 (2019).
The Takings Clause of the Fifth Amendment provides that private property [shall not] be taken for public use without just compensation.” U.S. Const. Amend. V. It applies both to state governments and the federal government. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 306 n.1 (2002).
Supreme Court precedent draws a distinction between physical takings and regulatory takings. Tahoe-Sierra, 535 U.S. at 321. At least two per se categories of regulatory taking require compensation without a case-specific inquiry: (1) a regulation that works a physical invasion and (2) a “regulation [that] denies all economically beneficial or productive use of land.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). Typically, however, an alleged taking falls outside of those categories, and a court must conduct a case-specific inquiry to determine whether or not a taking has occurred. Id.; see also id. at 1019 n.8.
Defendants argue that Tomko's allegations are insufficient because he does not allege that he was denied “all or substantially all beneficial use” of his property. This is incorrect, however, because as discussed herein, a claim may still exist even without such allegations.
The Supreme Court has addressed when a taking has occurred:
A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself “take” the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent “economically viable” use of the land in question can it be said that a taking has occurred.United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985). In certain circumstances, regulations that do not eliminate all use may nonetheless represent a taking:
Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (citation omitted).
The Court of Appeals has observed that “unless application of the law destroys or severely diminishes the value of the property, the Court will uphold its application. This is true even if the legislation prohibits ‘a beneficial use to which individual parcels had previously been devoted and thus cause(s) substantial individualized harm.'” Rogin v. Bensalem Twp., 616 F.2d 680, 690 (3d Cir. 1980) (quoting Penn Central Transp. Co. v. City of N.Y., 438 U.S. 104, 126-27 (1978)). See also Andrus v. Allard, 444 U.S. 51, 65-66 (1979). Even government action that prohibits the most profitable use of property does not constitute a taking. Andrus, 444 U.S. at 6566. See Sutton v. Chanceford Twp., 186 F.Supp.3d 342, 349-51 (M.D. Pa. 2016) (denial of permit to operate a nude dancing facility did not constitute a taking because the property had been and continued to be used in a variety of other commercial ways).
Moreover, the Supreme Court has ruled that decreases in the value of property during governmental deliberations, absent an extraordinary delay, are mere incidents of ownership and do not constitute a regulatory taking. See Agins v. City of Tiburon, 447 U.S. 255, 263 n.9 (1980), abrogated on other grounds, Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).
Defendants contend that Tomko has not pleaded facts to support an inverse taking claim and that even if the grading permit had been denied (as opposed to merely delayed), this would not prevent Missionary Partners from using the Property as a construction site or for other economically useful purposes as allowed by the Borough's Zoning Ordinance. In turn, Tomko points to the economic effect of Defendants' actions and cites the 2008 Agreeement as support for his claim that he had investment-backed expectations that he would be able to conduct fill activities on the Property in order to prepare it for future use. He also notes the character of the government action, which included using police force to surveil the Property and pressure workers to stay away.
These allegations represent a “particular property interest” that Tomko seeks to continue, however. He does not address why the Property could not be used for other economic purposes and cites no decisions in which a takings claim has been recognized under similar circumstances. Nor is the alleged delay in issuing the permit “extraordinary.” See, e.g., Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) (no temporary taking despite eight-year delay); Tahoe-Sierra, 535 U.S. at 306 (thirty-two month delay not extraordinary); Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001) (same for seven-year delay).Tomko's allegations are insufficient to state a claim for a partial taking. Therefore, with respect to Count III, the motion to dismiss should be granted.
5. Civil Conspiracy (Count IV)
In Count IV, Tomko alleges that Firek and Stanton engaged in a civil conspiracy to deprive Plaintiffs of their rights. Defendants contend that the Amended Complaint does not sufficiently allege facts that state a claim for conspiracy and further, that they cannot conspire among themselves.
“As a threshold matter ... a § 1983 conspiracy claim only arises when there has been an actual deprivation of a right.” Perano v. Township of Tilden, 423 Fed.Appx. 234, 239 (3d Cir. 2011); see also Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000). As explained above, as Tomko has failed to state a claim for violation of his civil rights, no conspiracy to violate his rights can be maintained.
Tomko contends that he has stated a claim for a conspiracy under § 1985(3). However, the Supreme Court has held that such conspiracy must be motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 829 (1983). Tomko alleges no such animus here.
In addition, both Stanton and Firek are Borough officials. Therefore, these actors are considered as one whole and cannot conspire with one another or the Borough. See Lande v. City of Bethlehem, 457 Fed.Appx. 188, 193 (3d Cir. Jan. 10, 2012) (“a governmental entity and its agents-such as the Department and individual officers here-cannot conspire because they are considered one and, therefore, the ‘two or more persons' requirement is not met.”) Therefore, the motion to dismiss should be granted as to Count IV.
Tomko argues that Stanton is not a government official, although he alleges that Stanton was the Borough Engineer and that he acted under “color of state law.” (Am. Compl. ¶¶ 76, 79.) Stanton could potentially conspire with Firek and the Borough if he was acting in his individual capacity, see Robison v. Canterbury Village, Inc., 848 F.2d 424, 431 (3d Cir. 1988). However, all of the allegations regarding Stanton concern actions he took in his official capacity as Borough Engineer (namely, sending letters regarding the grading permit, Am. Compl. ¶¶ 19, 2526), and thus no conspiracy may be alleged. See Catala v. Martine, 2015 WL 7776631, at *4 (M.D. Pa. Dec. 3, 2015).
6. Breach of Contract (Count V)
In Count V, Tomko alleges a state law claim that Defendants breached the 2008 Agreement between the Borough and Missionary Partners. In light of the recommendation of dismissal of Tomko's federal claims, the Court must determine whether to exercise jurisdiction over this claim.
The supplemental jurisdiction statute provides that:
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.28 U.S.C. § 1367(a).
Tomko's state law breach of contract claim in Count V arises out of the same circumstances and is so related to the federal claims asserted in Counts I through IV that it forms part of the same case or controversy. See Lyon v. Whisman, 45 F.3d 758, 761 (3d Cir. 1995). Subsection (c) of the supplemental jurisdiction statute, 28 U.S.C. § 1367(c), provides, however, that a district court may, in its discretion, decline to exercise jurisdiction if any of four conditions are met. One of these conditions is if “the district court has dismissed all claims over which it has original jurisdiction.” § 1367(c)(3). The Court of Appeals has stated that “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). This case is at an early stage and there are no significant circumstances of judicial economy, convenience or fairness that suggest a justification for retaining jurisdiction over Tomko's breach of contract claim. Therefore, Count V should be dismissed pursuant to § 1367(c)(3) without prejudice.
III. Conclusion
For the reasons explained above, Defendants' motion to dismiss should be granted with respect to Counts I, II, III and IV, and Count V should be dismissed pursuant to 28 U.S.C. § 1367(c)(3).
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by February 2, 2021. Any party opposing the objections shall file a response by February 16, 2021. Failure to file timely objections will waive the right of appeal.