Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


September 30, 1980


The opinion of the court was delivered by: GREEN

This case arose out of a controversy surrounding the proposed construction of a roller rink by plaintiff Victor Riccobono on property he owns in the Blue Bell area of Whitpain Township (the "Township"). Plaintiff has sued the Township, various Township officials, two private civic associations and certain of the associations' members for alleged violations of his civil rights. *fn1"

 Now before the Court is the defendants' motion to dismiss the amended complaint *fn2" on the grounds that the Court lacks subject matter jurisdiction, the complaint fails to state a claim upon which relief can be granted and the applicable statute of limitations bars the action. For the reasons discussed in this memorandum, we will grant this motion in part and will deny it in part.

 According to the complaint, since 1977 plaintiff has been ready and willing to build an indoor roller skating rink on the property he owns in the Township. Because plaintiff's property is located in a C-Commercial Zoning District, it was not necessary that he obtain a zoning change to begin construction of the rink. In compliance with requirements of the Township's zoning ordinances, Mr. Riccobono allegedly submitted plans for the proposed rink to the Township's Planning Commission in order to obtain the necessary building permit. The complaint states that even though the Montgomery County Planning Commission recommended approving plaintiff's application and the Township Engineer found that the application met all zoning, land development and subdivision requirements, the Township Planning Commission recommended to the Township's Board of Supervisors that plaintiff's application be denied.

 It is further alleged that during a meeting of the Township Planning Commission in which his application for a building permit was discussed, plaintiff and his attorney were harassed and physically threatened by certain members of the defendant Blue Bell Area Taxpayers Association and Five Point Civic Association. Thereafter, according to the complaint, members of the Township's Planning Commission, its Board of Supervisors and Sewer Authority acted to thwart Mr. Riccobono's efforts to acquire the necessary building permit because they believed that the roller rink would attract black people into the Blue Bell area of the Township. According to the plaintiff, defendant DeVincent, a member of the Township Board of Supervisors, told him that his roller skating rink would never be approved because the Township wanted to avoid racial integration and the vandalism which would supposedly result from it.

 In purported violation of the Pennsylvania "Sunshine Law", the Township's Board of Supervisors met in a closed door session and decided to "table" plaintiff's application. As a result of this action, it is alleged, plaintiff sought a mandamus in the Court of Common Pleas of Montgomery County. Although the parties to that action entered into an Agreed Order (consent decree), plaintiff contends that the defendants continued to block his efforts to complete the necessary prerequisites to obtaining the building permit. *fn3" According to the complaint, defendants prevented plaintiff from getting the necessary sewer permits for over three months. These permits were issued only after plaintiff returned to Common Pleas Court and acquired a court order.

 In September of 1978, the Township Board of Supervisors formally rejected plaintiff's application to build the roller rink. On appeal to the Court of Common Pleas, plaintiff succeeded in having the decision reversed. Judge Horace A. Davenport found the Supervisors' decision to be without basis in law or fact and directed the Board of Supervisors to issue the appropriate permits to Mr. Riccobono. Affirming the order and opinion of Judge Davenport, the Commonwealth Court dismissed the Township's appeal.

 The defendants have made numerous arguments in support of their motion to dismiss, and we will address each of them in the following discussion.


 Defendants urge that the Court lacks subject matter jurisdiction over this matter because plaintiff has failed to raise a substantial constitutional question. In support of this argument, defendants characterize the present suit as an effort to obtain "leverage" to pressure Whitpain Township into acceding to the demands of plaintiff and as an attempt to "chill" the legislative process of the Township and the participation by the citizen groups in that process.

 Plaintiff has invoked the jurisdiction of this Court under 28 U.S.C. § 1343. It is settled that in order to confer jurisdiction upon a district court under §§ 1343(3) and (4) a constitutional claim must not be "wholly insubstantial" or "obviously frivolous". The Supreme Court has noted:

The limiting words "wholly' and "obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial ... Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 858, 35 L. Ed. 2d 36 (1974). *fn4"

 Applying this test to the allegations of this complaint, we find that plaintiff has stated constitutional claims substantial enough to confer § 1343 jurisdiction upon this Court. The gravamen of the complaint is that in an effort to keep black people out of the Blue Bell area of Whitpain Township, defendants, acting arbitrarily and capriciously and under color of state law, denied plaintiff's right to enjoy, use and dispose of his property. On its face this claim of constitutional deprivation is substantial and clearly not frivolous. Moreover, defendants have not cited, nor do we know of any decisions of either the Supreme Court or the Third Circuit Court of Appeals which would suggest that such a claim is frivolous or of doubtful merit. Accordingly, we reject defendants' argument that this Court lacks subject matter jurisdiction over this case because of the insubstantiality of plaintiff's constitutional claims.


 Defendants urge the Court to dismiss the complaint as to the private defendants, that is, the Blue Bell Area Taxpayers Association, the Five Point Civic Association and certain individuals who are members of these groups. As defendants correctly observe, in order to recover under 42 U.S.C. § 1983, a plaintiff must prove that the defendant has deprived him of a right secured by the federal constitution or by federal law and that the defendant so acted under "color of state law." Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). Given the requirement of an act done under color of state law, private or nongovernmental parties usually are not liable under § 1983. There are cases, however, which hold that private parties who have conspired with governmental officials to deprive another of his rights under federal law can be sued under 42 U.S.C. § 1983. See, e.g. Adickes v. S.H. Kress and Company, 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970); Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 983 (5th Cir. 1979).

 Plaintiff has alleged that the private defendants conspired with various officials of Whitpain Township, for the purpose of excluding black people from the Blue Bell area of the Township, to deprive plaintiff of his rights to enjoy, use and dispose of his property. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Accordingly, we will not dismiss the complaint as it regards the private defendants.


 The third basis for dismissal raised by defendants is that plaintiff lacks standing to bring this suit because he is not the actual owner of the property involved, and thus, he has not suffered any threatened or actual injury as a result of the alleged illegal action. This argument is without merit. In paragraph one of the amended complaint, plaintiff states that he is the equitable owner of the land in question, and a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.