Silverberg v. City of Phila.

Decision Date08 January 2020
Docket NumberCIVIL ACTION NO. 19-2691
CourtU.S. District Court — Eastern District of Pennsylvania


Presently before the Court are Defendants the City of Philadelphia, Mayor James Kenney, Marcel S. Pratt, Esq., Frank Breslin, Diana P. Cortes, Esq., Marissa O'Connell, Esq., Brian R. Cullin, Esq., and Kelly Diffily, Esq.'s (the "City Defendants") Motion to Dismiss Amended Complaint (ECF No. 23) and Plaintiff's response thereto (ECF No. 29). For the following reasons, the City Defendants' Motion will be granted.

A. Procedural History

On June 20, 2019, Plaintiff Richard Silverberg filed a Complaint, alleging that the City of Philadelphia (the "City"), its employees, and others engaged in unlawful tax collection practices in violation of various state and federal laws. (ECF No. 1.) On September 3, 2019, Defendants Linebarger Goggan Blair & Sampson LLP ("Linebarger"), a law firm, and Christopher Dean ("Dean"), an attorney at Linebarger (collectively the "Law Firm Defendants"), moved to dismiss the Complaint. (ECF No. 17.) That same day, the City Defendants also moved to dismiss the Complaint. (ECF No. 18.) Plaintiff then filed an Amended Complaint. (ECF No. 19.) On September 17, 2019, the City Defendants filed a motion to dismiss the Amended Complaint. (ECF No. 23.) The Law Firm Defendants filed a motion to dismiss on September 23, 2019. (ECF No. 27.) On October 3, 2019, Plaintiff voluntarily withdrew all claims against the Law Firm Defendants. (ECF No. 32.) Only the City Defendants remain.

B. Plaintiff's Allegations

The Amended Complaint consists of the following twelve counts against the City Defendants: (Count I) infringement of Plaintiff's First and Fourteenth Amendment rights, in violation of 42 U.S.C. § 1983; (Count II) obstruction of justice, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1951; (Count III) obstruction of justice, in violation of RICO, 18 U.S.C. § 1512; (Count IV) obstruction of justice, in violation of RICO, 18 U.S.C. § 1503; (Count V) mail and wire fraud, in violation of RICO, 18 U.S.C. §§ 1341 and 1343; (Count VI) conspiracy, in violation of RICO, 18 U.S.C. § 1962(d); (Count VII) infringement of Plaintiff's First and Fourteenth Amendment rights, in violation of 42 U.S.C. § 1983; (Count VIII) common law abuse of process; (Count IX) fraud; (Count X) negligent misrepresentation; (Count XI) intentional infliction of emotional distress; and (Count XII) civil conspiracy. (Am. Compl., ECF No. 19.) The Amended Complaint alleges the following in support of these claims.

On March 11, 2008, in the Court of Common Pleas, Philadelphia County, the City filed a complaint against Plaintiff and his former law firm for unpaid business privilege and wage taxes that accrued between 1992 and 2004 (the "State Case"). (Am. Compl. ¶ 26, ECF No. 19.) Plaintiff and his law firm did not contest the claims and a default judgment was entered on June 3, 2008. (Id. ¶ 27.) On September 25, 2008, the City filed and served praecipes for writs of attachment against the law firm's banks. By November of 2008, the City had discontinued the writs of attachment. (Id. ¶¶ 28-30.) From November 8, 2008 to June 15, 2017, other than filing a suggestion of non-payment in June 2013, the City took no further action to execute upon orenforce the default judgment or otherwise collect the taxes that were owed by Plaintiff and his law firm. (Id. ¶ 31.)

The Amended Complaint alleges that in 2017, the City suffered a revenue shortfall, in part because a new beverage tax was not as lucrative as expected. As a result, the City had to look for alternative sources of revenue. (Id. ¶¶ 62-64.) On June 15, 2017, Dean, acting as outside counsel for the City, sent Plaintiff a letter demanding immediate payment of the June 3, 2008 judgment, as well as accrued interest and penalties. The letter advised that if the outstanding debt was not satisfied, Plaintiff's property might be levied or seized. (Id. ¶ 65.) A lengthy email exchange between Dean and Plaintiff ensued. (Id. ¶ 66.) Dean claimed that the City was merely seeking to enforce its rights to collect on the June 3, 2008 judgment. According to Plaintiff, this latent, renewed effort to collect on the June 3, 2008 judgment was really designed to address the City's revenue shortfall. (Id. ¶ 68.)

On July 16, 2017, in the State Case, Plaintiff filed a motion for judgment of non pros, or in the alternative, to enjoin enforcement of the June 2008 judgment, asserting that the City's nine-year inactivity on the 2008 judgment demonstrated a lack of diligence by the City (the "State Court Motion to Enjoin Enforcement"). The Court of Common Pleas denied the State Court Motion to Enjoin Enforcement, concluding that the City's enforcement action was timely under the relevant limitations period. The Pennsylvania Commonwealth Court affirmed. (Id. ¶¶ 72-74.)

On April 9, 2019, Plaintiff sent an email to Jane Istvan, Chief Deputy City Solicitor of the Appeals Unit, complaining that the City was acting in bad faith by allowing tax judgments to sit for years and, in the meantime, accrue significant penalties and interest. (Id. ¶ 83.) Later that day, Defendant Kelly Diffily ("Diffily"), a senior appellate attorney in the City Law Department,replied to the email, explaining that the Pennsylvania Commonwealth Court had vindicated the City's right to collect on the tax delinquency. The next day, she advised Plaintiff that attorney Drew Salaman ("Salaman") would take the lead in collecting the judgment against Plaintiff. On April 17, 2019, Salaman advised Plaintiff via email that although the principal tax delinquency was $41,009.17, the City was seeking $276,400.93 to satisfy the judgment, inclusive of fines, interest, and penalties. (Id. ¶¶ 84-87.) On April 23, 2019, Plaintiff sent via email to Salaman and Diffily a draft of the Complaint he filed in this matter. Plaintiff advised that he expected a final version of the Complaint to be ready for filing in the next few days. (Id. ¶ 88.) Six days later, on April 29, 2019, Defendant Diana P. Cortes ("Cortes"), the Chair of the Litigation Group in the City's Law Department, responded, advising that the City viewed the draft complaint as frivolous and would seek sanctions if Plaintiff filed it. (Id. ¶ 89.) According to Plaintiff, the City did not actually believe the draft complaint was frivolous and was really trying to intimidate Plaintiff so he would not avail himself of his rights in federal court. (Id. ¶ 90.)

From May 10, 2019, through the filing of the Amended Complaint, Defendant Brian R. Cullin ("Cullin"), Deputy City Solicitor, took additional actions with respect to the underlying State Case, which included engaging in discovery, filing various motions, and making settlement demands on Plaintiff. On June 14, 2019, Cullin conveyed the City's settlement position to Plaintiff in an email, advising that a lump sum payment of $185,000 would resolve the outstanding judgment. (Id. ¶ 93.) According to Plaintiff, Cullin's activities were intended as retaliation against Plaintiff for threatening to file a federal lawsuit against the City. (Id. ¶ 94.)

Plaintiff filed this action on June 20, 2019. On August 13, 2019, he served the Complaint and a motion for preliminary injunction on Defendants. Two days later, the City filed seven writs of attachment for various banks in connection with the State Case. (Id. ¶¶ 98-101.)Plaintiff was not immediately served with copies of these writs and learned of them only because he had inspected the state court docket the day after they were filed. (Id. ¶ 102.) On August 29, 2019, Cullin froze and levied funds from Plaintiff's bank account. Plaintiff was not given prior notice of the levies, so he had no opportunity to defend against the actions on his account. (Id. ¶ 103.) The City had not sought to levy Plaintiff's accounts since 2008. Plaintiff alleges that the City's actions in August 2019 were a retaliatory response to his service of the Complaint and motion for injunctive relief in federal court. (Id. ¶¶ 104-06.) Plaintiff also alleges that Cullin purposefully delayed service of various state court filings to prevent Plaintiff from defending himself in the State Case. (Id. ¶ 113.)

On August 28, 2019, the City demanded $210,000 from Plaintiff to settle the State Case. Over $170,000 of that amount was based on interest and penalties. (Id. ¶ 127.)


Plaintiff seeks redress in federal court for the City's allegedly unlawful tax collection practices. Federal courts are loath to interfere in state tax collection matters and routinely abstain from or otherwise decline to exercise jurisdiction over disputes involving state tax collection. This is one of those cases. Under Rule 12(b)(1), the Court does not have subject matter jurisdiction over this matter and must dismiss it without prejudice.

A. Standard of Review

The City Defendants move to dismiss the Amended Complaint under Rules 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. On a Rule 12(b)(6) motion, "courts 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014)(quoting Phillips v. Cnty. Of Allegheny, 515 F.3d 223, 233 (3d Cir. 2008)). "In order to defeat a Rule 12(b)(6) motion, plaintiffs' '[f]actual allegations must be enough to raise a right to relief above the speculative level....'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Thus, 'only a complaint that states a plausible claim for relief survives a motion to dismiss'" under Rule 12(b)(6). Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

The standard of review for motions brought...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT