Marinkovic v. Battaglia, Case No. 1:14-cv-49

Decision Date23 September 2019
Docket NumberCase No. 1:14-cv-49,Case No. 2:18-cv-388
PartiesMEL MARINKOVIC, Plaintiff, v. DAVID K. BATTAGLIA, et al., Defendants.
CourtU.S. District Court — Western District of Pennsylvania

In these consolidated civil actions, pro se Plaintiff Mel Marinkovic1 sued several former Armstrong County officials in connection with his attempts to purchase county-held properties through a private bidding process. Pending before the Court in Civil Action 1:14-cv-49 is the Defendants' motion for summary judgment and Plaintiff's counter-motions to reopen discovery and to strike Defendants' exhibits. Pending in Civil Action No. 2:18-cv-388 is Defendants' motion to dismiss Plaintiff's claims, pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6).

For the reasons that follow, Defendants' motion for summary judgment will be granted, and Plaintiff's motions to reopen discovery and to strike exhibits will be denied. Further, the claims in Civil Action No. 2:18-cv-388 will be dismissed without leave to amend.


Between 2011 to 2013 Plaintiff made inquiries to the Armstrong County Treasurer's Office about the process for buying county-held residential properties through means other than public auctions. Plaintiff claims he was informed about a direct, confidential private bid process and, thereafter, he visited and inspected dozens of properties and eventually made offers to buy several properties. He alleges that, despite being told by the Tax Claim Bureau staff that there were no competing bids on these properties, his efforts to acquire them were stymied in each case because of other buyers stepping forward at the last minute to outbid him. According to Plaintiff, this occurred because the County Tax Claim Bureau staff informed other government officials of Plaintiff's offers so that these insiders could then secretly make higher bids. Eventually, Plaintiff wrote a letter to the Armstrong County Commissioners complaining of this process, but the process allegedly continued until the County Commissioners decided to end the private sale process entirely.

Plaintiff initially brought a litany of constitutional and state-law claims against Armstrong County and three of its former Commissioners: David K. Battaglia, Robert T. Bower, and Richard L. Fink (at times hereafter, the "Defendant Commissioners"). ECF No. 31. By Memorandum Opinion and Order dated July 8, 2016, the Court dismissed all claims against the County and all but two claims against the Defendant Commissioners. As a result, the only remaining claims are: (a) a First Amendment claim predicated on the theory that Defendants unlawfully retaliated against Plaintiff by cancelling his outstanding bids on certain properties in response to his constitutionally-protected petitioning activity; and (b) a "class of one" equal protection claim premised upon an allegation that Plaintiff was the only individual bidding onproperties held by the Tax Claim Bureau who was not permitted to see the amount of other buyers' bids.

The pleadings closed on September 23, 2016, and discovery then proceeded through April 12, 2018. On September 17, 2018, the undersigned became the presiding district judge in these cases.

On January 11, 2019, Defendants filed their motion for summary judgment relative to the two remaining claims in Civil Action No. 1:14-cv-49. ECF No. 165. Defendants' motion was accompanied by a Concise Statement of Material Facts in support of their motion, ECF No. 167, as well as a memorandum of law, ECF No. 166, and an appendix of exhibits, ECF No. 168.

On April 1, 2019, after receiving a six-week extension of time for responding to the Defendants' motion, Plaintiff filed his "Opposition to Motion for Summary Judgment and Motion to Strike Defendants' Exhibits," ECF No.171, along with a "Motion to Reopen Discovery and Motion to File Rule 56(f) Affidavit under Seal," ECF No. 172. Appended to the former document was a "Statement of Material Facts in Opposition to Summary Judgment," ECF No. 171-1, which is in the nature of a declaration by Plaintiff. Despite this Court having expressly advised Plaintiff that his filings must comply with Federal Rule of Civil Procedure 56 and the local rules of this Court, Plaintiff's oppositional papers fail to do so. In particular, Plaintiff did not adhere to Local Rule 56's requirement that he submit:

A separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:
a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material;
b. setting forth the basis for the denial if any fact contained in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material), withappropriate reference to the record (See LCvR 56.B.1 for instructions regarding format and annotation); and
c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary for the Court to determine the motion for summary judgment;

LCvR 56(C)(1). As a result, any alleged material facts set forth in Defendants' Concise Statement of Material Facts, which are claimed to be undisputed, will be deemed admitted for purposes of this memorandum opinion, except to the extent they are specifically denied or otherwise competently controverted by Plaintiff's non-conforming Statement of Material Facts. LCvR 65(E).2


Between 2013 and 2014, Plaintiff submitted bids to the Armstrong County Tax Claim Bureau relative to five properties that the Bureau was holding in its repository. Def.s' Concise Statement of Material Facts ("DCSMF"), ECF No. 167, at ¶1. All bids submitted to the Tax Claim Bureau were subject to the review and approval of the County Tax Assessor. Id. ¶2. A minimum bid of $400.00 was required. Id. ¶3. Pursuant to Pennsylvania law, upon receipt of a bid, the Tax Claim Bureau was obligated to seek the consent of the local taxing bodies to the sale of the property to that bidder. Id. ¶32 (citing 72 Pa. Stat. §5860.627). Accordingly, before it accepted an offer on any property, the Tax Claim Bureau provided notice of the bid to the local taxing entities. Id. ¶33. The amount of the bid was not disclosed. Id. Instead, the Tax Claim Bureau advised the local taxing authorities only of the fact of a bid and the identity of the purchaser. Id. ¶34. The Tax Claim Bureau also did not disclose the amount of any bids,including the amounts of Plaintiff's bids, to other buyers. Id. ¶35. As Armstrong County Commissioners, the Defendants' only involvement in the sale of properties held in the Tax Claim Bureau repository was to provide final approval of the sale following the County Assessor's acceptance of an offer. Id. ¶31.

On April 24, 2013, Plaintiff submitted a private bid for the "Borland" property, control number 18-0-010292, in the minimum amount of $400.00 DCSMF ¶4. The County Assessor rejected Plaintiff's offer on the "Borland" property because a higher bid was submitted by another person. Id. ¶5. The Tax Claim Bureau advised Plaintiff that the Assessor had rejected his bid by correspondence dated June 11, 2013. Id. ¶6.

On August 6, 2013, Plaintiff submitted a bid for the minimum amount of $400.00 on the "Metro Housing, LLC" property, control number 01-0-000160. DCSMF ¶7. The County Tax Assessor rejected Plaintiff's bid on October 4, 2013, due to the fact that the Assessor had received a higher offer of $1,500.00 on August 22, 2013. Id. ¶¶8-9. Defendants Bowers and Fink, acting as County Commissioners, approved the sale of the Metro Housing, LLC property to the higher bidder. Id. ¶10.

On November 19, 2013, Plaintiff submitted a minimum bid of $400.00 and up to $1,000.00 on the "Imagine America, LLC" property, control number 14-0-007328. DCSMF ¶11. The Assessor noted that this property was worth $1,000.00. Id. ¶12.

That same day, Plaintiff submitted a minimum bid of $400.00 and up to $1,000.00 on the "Bell" property, control number 14-0-007591. DCSMF ¶19. Another individual, Michael Zaffuto, submitted a competing bid for that same property on December 13, 2013 in the amount of $2,000.00. Id. ¶20.

On December 23, 2013, Plaintiff served Defendants with a copy of a draft complaint against the County and correspondence advising that Plaintiff perceived his civil rights had been violated in connection with his submissions of bids to the Tax Claim Bureau. DCSMF ¶24. Defendants acknowledge receipt of these documents on or around that same date. Id. ¶25.

On January 17, 2014, the County Tax Assessor rejected Plaintiff's bid relative to the Bell property and accepted the higher offer of Michael Zaffuto. DCSMF ¶21. All three Defendant Commissioners later approved the sale of the "Bell" property to Zaffuto. Id. ¶22. Via correspondence dated January 21, 2014, Plaintiff was informed of the fact that the County had accepted a higher bid on the property in lieu of his own. Id. ¶23.

With the approval of the Tax Claim Bureau's Director, and upon the recommendation of the county solicitor, the "Imagine America, LLC" property was awarded to Plaintiff on January 22, 2014, per his bid of $1,000.00. DCSMF ¶15. The County Board of Commissioners, through Defendants Bower and Fink, approved the sale of the "Imagine America, LLC" property, to Plaintiff. Id. ¶16. Plaintiff was informed of the Board's approval of his bid via correspondence dated February 5, 2014, and the sale was later consummated on or about July 19, 2014. Id. ¶¶17-18.

Meanwhile, on January 17, 2014, Plaintiff had submitted a bid on the "Hartzell" property, control number 10-0-065394 for a minimum bid of $400.00 and up to $1,000.00. DCSMF ¶26. The County Tax Assessor accepted the bid of $1,000.00 on February 4, 2014. Id. ¶27. The Defendant Commissioners approved the sale of the "H...

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