properly service the premises of DML in its completed state" and "to pay the cost for all" traffic control devices and channelization necessary for use of the premises. Plaintiffs' Complaint, Doc. #1, paras. 17 and 44-46 and Ex. "A" attached thereto. Epstein avers that, through a number of intrafamilial conveyances of the parcel of land in question, he has become, as to the 1965 agreement, the "successor in interest" to DML Realty Co. Id. at para. 19; see also, affidavit of Jeffry A. Eptein, Doc. #3, paras. 4-12.
The defendants contend that we should dismiss Epstein's breach of contract claim because: (1)he lacks standing to assert any breach of the 1965 agreement; (2)the applicable statute of limitations has run; and (3)he has failed to state a claim for breach of contract.
The defendants argue that because Epstein has failed to specifically allege the facts upon which he relies to support his claim that he is the "successor in interest" to DML Realty Co.'s rights under the 1965 agreement, we should dismiss his breach of contract claim. Initially, we note that the specificity requirement applicable to § 1983 actions in this Circuit does not apply to a pendent state law claim for breach of contract. As to such a claim, a plaintiff need only satisfy the substantially less burdensome requirements of federal notice pleading. We believe that the allegations contained in the plaintiffs' Complaint more than adequately provide the defendants with notice of the nature of Epstein's claim for breach of contract.
We also believe that it would be improper to dismiss Epstein's claim for breach of contract at this stage given the evidence he has adduced in opposition to the defendants' Motion to Dismiss. The evidence to which we refer is the "deed trail" produced by Epstein showing how he came to be the owner of the property previously owned by DML Realty and upon which the plaintiffs wish to construct a shopping center. See affidavit of Jeffry A. Epstein, Doc. #3, and exhibits attached thereto. According to the plaintiffs, the "contractual benefits" of the 1965 agreement "attached to the land", and as the present owner of the property, those benefits inure to Jeffry Epstein. Whether this contention presents a valid legal theory remains to be seen. We do not believe, however, that we should address this issue at this stage of these proceedings.
We likewise find no merit in either the defendants' argument that Epstein's breach of contract claim should be dismissed on statute of limitations grounds or their contention that he has failed to properly state a claim for breach of contract. The defendants, as to both of these arguments rely upon facts outside of the plaintiffs' Complaint and as to which the plaintiffs' have not had an adequate opportunity to rebut given the lack of discovery in this matter. At a minimum, the plaintiffs are entitled to further develop the factual record in this case before they respond to the defendants' contentions on these points.
The defendants final argument is that we should abstain from hearing the plaintiffs' constitutional claims based on the pendency of related state court proceedings, and, pursuant to the doctrine of abstention, dismiss the plaintiffs' Complaint.
Initially, we note that even if we agreed with the defendants that one or more of the principles of abstention applied here, we could not simply dismiss the plaintiffs' Complaint since it is arguable that some matters may remain for resolution by this Court after the plaintiffs' state court action has concluded; rather, we would stay these proceedings while the plaintiffs' state court action proceeded forward. See Ingersoll-Rand Financial Corp. v. Callison, 844 F.2d 133 (3d Cir. 1988) and Williams v. Hepting, 844 F.2d 138 (3d Cir. 1988). Given our conclusion that it would be improper for us to abstain from hearing the plaintiffs' claims under the facts presented, however, we need not even decide this issue.
The defendants, citing Meredith v. Talbot County, Maryland, 828 F.2d 228 (4th Cir. 1987), base their argument upon the abstention principles enunciated by the Supreme Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941) (Pullman abstention) and Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943) (Burford abstention). See Ingersoll-Rand Financial Corporation v. Callison, 844 F.2d at 136 n. 3. In response, the plaintiffs, citing the Third Circuit's decision in Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir.), cert. denied, 456 U.S. 990, 73 L. Ed. 2d 1285, 102 S. Ct. 2270 (1982), argue that neither the Burford -type nor the Pullman -type abstention should be applied here.
Pullman abstention clearly has no application to this case since there is no unsettled question of state law involved. The only issue before the Pennsylvania state courts is whether there is substantial evidence to support the findings upon which the Board of Commissioners based its denial of approval for the plaintiffs' proposed plan for the development of a shopping mall. As far as the Township's Subdivision and Land Development Ordinance is concerned, the state law involved in this case is settled.
The question of whether we should abstain from hearing the plaintiffs' constitutional claims on the basis of Burford presents a much more difficult question. We do not find the Third Circuit's decision in Heritage Farms as so clearly applicable to this case as do the plaintiffs. The Third Circuit in Heritage Farms was faced with a factual scenario similar, though by no means identical, to that before us. The plaintiffs in Heritage Farms alleged that the defendants had, inter alia, denied them building permits and governmental approval for their development projects pursuant to a conspiracy to prevent the plaintiffs from competing with the defendants' private business interests. In concluding that the district court had abused its discretion in abstaining from hearing the plaintiffs' constitutional claims, the Third Circuit stated that the plaintiffs' allegations of pervasive corruption, fraud, and malevolent and illegal conduct rendered Burford -type abstention inapplicable to the case since such allegations made the action something more than just a simple land use case. The Third Circuit stressed, however, that the question of whether a district court should abstain in such cases presented a fact-sensitive issue which requires that district courts carefully examine the plaintiff's allegations to determine the essence of the claim. The Court stated that, "If it is an unlawful conspiracy like the one alleged (in Heritage Farms), the mere presence of land use issues should not trigger a mechanical decision to abstain." 671 F.2d at 748. The Third Circuit, on the other hand, also stated that district courts are not "state-wide Board(s) of Zoning Appeals." Id., quoting Kent Island Joint Venture v. Smith, 452 F. Supp. 455 (D.Md. 1978).
As stated earlier, the plaintiffs in Heritage Farms alleged that the individual defendants had voted to deny their applications for building permits in order to preclude the plaintiffs from competing with the individual defendants' private business interests. There are no allegations in this case that the individual defendants acted in order to advance their own, personal economic interests. Thus, to this extent, Heritage Farms is factually distinguishable from this action. Our inquiry does not end here, however. A second point made by the Third Circuit in Heritage Farms was that Pennsylvania's Municipalities Planning Code, Pa.Stat.Ann. tit. 53 § 10101 et seq., the state statute which authorized Whitehall Township to adopt its Subdivision and Land Development Ordinance, does not involve the type of uniform and elaborate statewide regulation which was involved in Burford. Pennsylvania, based on the very nature of its Municipalities Planning Code, has no uniform state policy for land use and development. Thus, as in Heritage Farms, "there is no danger that a federal court decision in this case will disrupt Pennsylvania's policies or plans with respect to land use." Heritage Farms, 671 F.2d at 747.
Given the allegations of the plaintiffs' Complaint, particularly their charge that the individual defendants expressed their intention to approve their development plan so long as the plaintiffs waived whatever rights they might possess under the 1965 Whitehall Township-DML Realty Agreement, and the fact that Pennsylvania has no interest in establishing a uniform land use policy, we find that Burford does not require that we abstain from adjudicating the plaintiffs' constitutional claims in this action. Though this case certainly presents a very close question of whether we should abstain, we believe that this action does present something more than a simple land use case. We pause to note, however, that our conclusions, both as to whether the plaintiffs have stated a claim for deprivation of their right to substantive due process and that Burford abstention does not apply here, are subject to further review once the factual record in this case has been developed. As previously stated, we have for the most part had to rely upon the allegations of the plaintiffs' Complaint in assessing the nature of the plaintiffs' claims. A question remains, of course, as to whether those allegations will be borne out through the process of discovery.
Finally, to the extent that the defendants' abstention argument is nothing more than a claim that the plaintiffs should be required to exhaust their state court remedies, their assertions have no legal basis. See Williams v. Hepting, supra. The fact that the plaintiffs may be able to obtain some relief from the defendants' action in state court does not negate their claim that the defendants actions deprived them of their right to substantive, as opposed to procedural, due process. See Schwartz, The Postdeprivation Remedy Doctrine of Parrat v. Taylor and Its Application To Cases of Land Use Regulation, 21 Ga.L.Rev. 601 (1987).
ORDER - August 24, 1988, Filed
AND NOW, this 22nd day of August, 1988, upon consideration of: (1) the defendants' Motion to Dismiss, Doc. #2, and the plaintiffs' response thereto, Doc. #3, and (2) defendants' Motion For Protective Order, Doc. #4, and the plaintiffs' response thereto, Doc. #5, IT IS ORDERED that:
(1) defendants' Motion to Dismiss is DENIED and the defendants' shall file an answer to the plaintiffs' Complaint within twenty(20) days of the entry of this Order on the record by the Clerk of this Court, and
(2) defendants' Motion For Protective Order, Doc. #4, is DENIED.