Perano v. Arbaugh

Decision Date25 March 2011
Docket NumberCivil Action No. 10-cv-01623
PartiesFRANK T. PERANO, doing business as GSP Management Company, Plaintiff v. SEAN ARBAUGH, RANDY KING and LEE MCDONNELL Defendants
CourtU.S. District Court — Eastern District of Pennsylvania

APPEARANCES:

DANIEL F. SCHRANGHAMER, ESQUIRE

On behalf of plaintiff

DENNIS A. WHITAKER, ESQUIRE

SUSAN SHINKMAN, ESQUIRE

On behalf of defendants

OPINION

JAMES KNOLL GARDNER,

United States District Judge

This matter is before the court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint filed together with a brief on June 11, 2010.1 Plaintiff filed a responsive brief onJuly 2, 2010.2 On July 29, 2010 defendants filed a reply with permission.3

For the reasons expressed below, defendants' motion to dismiss plaintiff's Amended Complaint is granted in part and denied in part. Defendants' motion to dismiss plaintiff's procedural due process claim is granted. Defendants' motion to dismiss plaintiff's conspiracy claim is granted. Defendants' motion to dismiss plaintiff's claim for intentional interference with contractual relations is granted.

Defendants' motion to dismiss plaintiff's Amended Complaint is also granted without prejudice for plaintiff to file a more specific second amended complaint regarding plaintiff's Equal Protection and First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983.

Defendant Lee McDonnell's motion to dismiss is denied. In addition, defendants' motion to dismiss plaintiff's claim for injunctive relief is denied. Finally, defendants' motion to dismiss in the nature of a motion to abstain, is denied.

JURISDICTION

Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court hassupplemental jurisdiction over plaintiff's pendent state-law claims. See 28 U.S.C. § 1367.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred within Berks County, Pennsylvania, which is located within this judicial district.

PLAINTIFF'S AMENDED COMPLAINT

On May 10, 2010 plaintiff Frank T. Perano, doing business as GSP Management Company, filed a three-count Amended Complaint.4 In the Amended Complaint, plaintiff asserted claims pursuant to 42 U.S.C. §§ 1983 and 1985 alleging that defendants Sean Arbaugh, Randy King and Lee McDonnell violated his civil rights and intentionally interfered with contractual relations under Pennsylvania state law. Plaintiff requests an award of damages, attorneys' fees, and injunctive relief against defendants.

Specifically, Count I of plaintiff's Amended Complaint brings constitutional claims under 42 U.S.C. § 1983, alleging that defendants acted in their individual capacities to deprive plaintiff of his Constitutional rights to procedural due process and Equal Protection, and violated his right to free speech underthe First Amendment to the United States Constitution by retaliating against him for exercising his free speech rights.

Count II is a claim pursuant to 42 U.S.C. § 1985 alleging that defendants, acting in their individual capacities, engaged in an unlawful conspiracy to deprive plaintiff of his Constitutional rights.

Count III avers a cause of action for intentional interference with contractual relations pursuant to Pennsylvania common law. It alleges that defendants acted in their individual capacities to unlawfully interfere with the November 4, 1999 Consent Order between plaintiff and Tilden Township, Pennsylvania.

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted."5 Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion requires the court to examine the sufficiency of thecomplaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) "[does] not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.6

In determining whether a plaintiff's complaint is sufficient, the court must "accept all factual allegations astrue, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief." Fowler, 578 F.3d at 210 (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory or 'bare-bones' allegations will [not] survive a motion to dismiss, " Fowler, 578 F.3d at 210, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nonetheless, to survive a 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotation omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted therein. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a"plausible claim for relief." Id. at 211 (quoting Iqbal, __ U.S. at __, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, __ U.S. at __, 129 S.Ct. at 1950-1951, 178 L.Ed.2d at 884-885 (internal quotations omitted).

A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941.

FACTS

Accepting as true all of the well-pled facts in plaintiff's Amended Complaint, and drawing all reasonable inferences in favor of plaintiff as the non-moving party, which I am required to do under the above standard of review, the pertinent facts are as follows.

Plaintiff Frank T. Perano, doing business as GSP Management Company, owns and operates mobile home parks inPennsylvania.7 Pleasant Hills is one such mobile home park, located in Tilden Township, Berks County, Pennsylvania.8

Pleasant Hills was issued a permit by the Pennsylvania Department of Environmental Protection ("PADEP") allowing plaintiff to operate a private sewage treatment plant.9Plaintiff successfully renewed the permit for the private sewage treatment plant in 1995, 2000, and 2005.10 In addition, on November 4, 1999 plaintiff entered into a Consent Order with Tilden Township which upheld plaintiff's right to operate a private sewage treatment plant at Pleasant Hills.11

Defendants Sean Arbaugh, Randy King, and Lee McDonnell are employees of PADEP.12 In early 2008, Tilden Township applied for financial aid from the Pennsylvania Infrastructure Investment Authority for sewer infrastructure improvements in the Township.13 This request was denied because Tilden Township's public sewer system did not score high enough on the priority scale.14

Defendants determined they could help increase Tilden Township's chances of receiving such financial aid by requiring plaintiff to connect to Tilden Township's public sewer system, thereby having the effect of closing Pleasant Hill's private sewage treatment plant.15 Defendants also had a desire for retribution against plaintiff because of his past opposition to their enforcement actions as employees of PADEP.16

On February 5, 2008 defendants met with plaintiff, ostensibly to discuss compliance issues at Pleasant Hills.17 At that meeting, defendant Arbaugh made numerous misstatements regarding the sewage capacity and compliance status of Pleasant Hills.18 Defendants Arbaugh and King announced that PADEP would not allow renewal of Pleasant Hill's private sewage treatment plant permit when it expired in 2010.19 Plaintiff had not yet submitted an application for the permit's renewal.20 On February 5, 2008, Tilden Township did not have a public sewer available to Pleasant Hills, nor did it have any plans to build such a sewer.21

Plaintiff took actions to oppose the decisions of PADEP and defendants, including filing appeals, together with commencement of litigation and lobbying efforts against PADEP and defendants.22 Based upon their personal animus toward plaintiff, defendants retaliated against plaintiff for this opposition.23

On April 15, 2009, defendants caused PADEP to issue an Order to Tilden Township, which explained that PADEP would not renew Pleasant Hill's private sewage treatment plant permit once it expired.24 Furthermore, the Order required Tilden Township to revise its Act 537 Sewage Facilities Plan to meet the future sewage disposal needs of Pleasant Hills.25

On March 9, 2010, defendants caused PADEP to enter into a Consent Order and Agreement with Tilden Township. In...

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