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GLEN-GERY CORP. v. LOWER HEIDELBERG TWP.

April 25, 1985

GLEN-GERY CORPORATION
v.
LOWER HEIDELBERG TOWNSHIP, LOWER HEIDELBERG TOWNSHIP BOARD OF SUPERVISORS, WURMSER, DONALD W., ECKERT, CHARLES L. and ESSIG, RICHARD C., Individually and in their respective official capacities as Members of the LOWER HEIDELBERG TOWNSHIP BOARD OF SUPERVISORS, KNAPPENBERGER, JOHN K., Individually and in his official capacity as Zoning and Building Officer of LOWER HEIDELBERG TOWNSHIP, LAMM, WARREN W., KOCH, DONALD L., and SEIP, R. DAVID



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Presently before me is defendants' motion to dismiss. For the reasons set forth below, this motion will be granted and plaintiff's complaint will be dismissed with prejudice.

 Background

 Plaintiff in this civil rights suit is a corporation engaged in the manufacturing of bricks. It owns a parcel of land in Lower Heidelberg Township ("Township"), Berks County, Pennsylvania, on which it operates a shale and clay quarry. This quarry is the only one of its kind in the Township.

 Plaintiff has owned the land in question for quite some time and has used it for quarrying operations since 1959. In 1973 the Township revised its zoning ordinance and failed to provide for quarrying as a permitted use by right, special exception, or conditional use. Plaintiff continued to mine its property, however, as a prior nonconforming use.

 In January 1982, the Township passed another zoning ordinance, the effect of which was to prohibit all quarrying activity in the Township south of Sweitzer Road which bisects plaintiff's property. Plaintiff and the Township are currently involved in litigation in the Court of Common Pleas of Berks County, Pennsylvania, regarding the validity of the 1982 ordinance and its application to plaintiff.

 In its instant complaint, plaintiff alleges that defendants and others engaged in a conspiracy, the object of which was the destruction of plaintiff's legitimate business. The complaint further alleges that the ordinance was passed and enforced out of personal animus toward plaintiff. Glen-Gery claims that its rights under the due process and equal protection clauses of the fourteenth amendment have been violated and that its rights under the state constitution have also been violated. The complaint also includes a number of pendent state claims. Defendants have moved to dismiss the complaint *fn1" arguing that I should abstain from hearing the present controversy, that the defendants are immune from suit, and that plaintiff has failed to state a claim upon which relief can be granted.

 Discussion

 Defendants' principal contention in this motion is that I should abstain from exercising jurisdiction over the present suit. I agree.

 Abstention is a judicially created doctrine through which federal courts decline to exercise their jurisdiction in order to prevent unnecessary friction between the federal and state governments. It is appropriate only "in the exceptional circumstances where the order to the parties to repair to state court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959). Consistent with its perception of abstention as a narrow exception to the general rule that the federal courts should exercise jurisdiction over cases properly before them, the Supreme Court has defined only a limited number of situations in which abstention is appropriate. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976).

 There are three general types of abstention, each motivated by a separate, distinct concern for comity. First, there is so-called Younger abstention under which a federal court will abstain from hearing a case when there is a pending state court criminal or quasi-criminal action. See Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). Second, there is so-called Pullman abstention under which a federal court will abstain when there is an unsettled question of state law the disposition of which may obviate the need to reach a federal constitutional question. See Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). Third, there is so-called Burford abstention under which a federal court may abstain in order to avoid deciding an issue which would interfere with a state's attempt to establish or maintain a coherent state policy with respect to a matter of important state concern. See Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943). Defendants rely on all three strands of the abstention doctrine. I will discuss each of these grounds for abstention in turn.

 All parties agree that there are pending state court actions in the Court of Common Pleas of Berks County that arise from the same set of operative facts as the instant case. Defendants characterize one of them as a quasi-criminal action and note that the complaint seeks an injunction against "unlawful" imposition of penalties on plaintiff. This could be construed as a request to enjoin future or threatened criminal or quasi-criminal action in the state court. It is well settled, however, that a federal court cannot abstain merely because there is a threat of pending prosecution in the state court system. Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). In order for Younger to compel abstention, there must be a pending state action.

 In order to fully evaluate defendants argument that Younger requires abstention, I must examine the nature of the pending state court proceedings, if any. It does appear that the Township served a "stop order" on plaintiff on October 27, 1983. The Township then filed an action in the Court of Common Pleas of Berks County seeking a declaration of its rights to enforce the ...


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