Plaintiffs allege no facts from which one could find that they were treated less favorably by defendants than other private sewage service providers in their jurisdiction, or that someone else seeking to maintain and expand a private sewage system in Westtown Township would be treated any more favorably. Indeed, plaintiffs allege that defendants are acting pursuant to a policy generally directed at "local communities and their privately owned sewage companies."
3. Due Process
The Fourteenth Amendment protects against deprivation of life, liberty or property without due process of law.
When such interests are implicated, due process requires notice and an opportunity for a hearing, the nature and timing of which may depend on the particular circumstances and interests affected. Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Where property rights are involved, due process requires that one be afforded an opportunity for a hearing at some time before he is permanently deprived of his property. Mitchell v. W.T. Grant Co., 416 U.S. 600, 612, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974). Property interests accorded protection under the Fourteenth Amendment are defined by independent sources such as state law. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
It appears from the face of plaintiffs' various complaints, including the proposed Second Amended Complaint, that they have not in fact been deprived of property. They still have their business. They still have the land on which it is situated. They still have a public utility franchise. Indeed, they allege that defendants "sought" and "are seeking" to deprive them of such property interests "by 1995 or 1996".
Plaintiffs also allege that defendants injured their reputation and good will by intentionally misrepresenting to others plaintiffs' financial condition and creditworthiness. They do not allege that as a proximate result of such statements anyone actually withheld credit from or refused to do business with plaintiffs.
Unless coupled with a tangible injury such as the loss of employment or extinction of a vested right recognized by state law, defamation by state officials is not actionable under § 1983. Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Plaintiffs fail to allege facts in their proposed Second Amended Complaint which satisfy the "stigma plus" test of Paul. See, e.g., Neu v. Corcoran, 869 F.2d 662, 669 (2d Cir. 1989) (defamatory statements resulting in inability to engage in chosen business insufficient); Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir. 1987)(defamatory statement resulting in loss of business clients and income insufficient); Mosrie v. Barry, 231 U.S. App. D.C. 113, 718 F.2d 1151, 1158 (D.C. Cir. 1983) (economic injury to business interests insufficient); Havas v. Thornton, 609 F.2d 372, 375 (9th Cir. 1979)(statements impugning business practices pursuant to conspiracy to drive plaintiff out of business insufficient); Dower v. Dickinson, 700 F. Supp. 640, 647 (N.D. N.Y. 1988)(defamatory statements by township supervisor interfering with plaintiff's business opportunities insufficient). Also, Paul and its progeny suggest that the injury transcending reputation must be directly caused by the state and not merely by the conduct of third parties acting upon defamatory statements by public officials. Id.
4. Taking Without Just Compensation
In Count II of their proposed Second Amended Complaint, plaintiffs assert, inter alia, that they were deprived of property "without just compensation." This appears to be an attempt to assert a violation of the takings clause of the Fifth Amendment, as applied to the states through the Fourteenth Amendment.
Even the valid application of the state's regulatory or police powers may constitute a taking of property in the absence of physical invasion or occupation where such action prevents all economically productive use of property or drastically diminishes its value. Lucas v. South Carolina Coastal Council, 120 L. Ed. 2d 798, 112 S. Ct. 2886, 2893 (1992); Rogin, 616 F.2d at 690; Dean Tarry, 650 F. Supp. at 1550. No set formula exists for determining "where regulation ends and taking begins." Goldblatt v. Hempstead, 369 U.S. 590, 594, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962). Relevant factors include the type of and reasons for governmental interference; the impact on the overall property value; and, the extent of interference with reasonable, distinct, investment-backed expectations. Pace Resources, 808 F.2d at 1030.
Plaintiffs assert in conclusory fashion that defendants are attempting to diminish the value of their properties. Plaintiffs fail to allege any facts which show that the value of their real property has been destroyed or that all uses to which it might productively be dedicated have been prohibited. They simply allege that defendants have denied them an opportunity to exploit more lucratively a particular use of their property. That regulatory action deprives property of its most beneficial use does not render it unconstitutional. Rogin, supra ; Edelweiss Dev. Corp. v. county of Susquehanna, 738 F. Supp. 879, 885 (M.D. Pa. 1988). The takings clause does not require compensation when an owner is prevented from making the most profitable use of his property or even when regulation results in "substantial devaluations in property value." Dean Tarry, supra. See also Park Avenue Tower Associates v. City of New York, 746 F.2d 135, 138-39 (2d Cir. 1984)(loss of profits or reasonable return on investment do not constitute taking). To the extent that plaintiffs allege that the township defendants hope and plan to acquire their property in the future without just compensation, their takings claim is at best premature.
Moreover, the essence of a takings claim is not that private property rights have been extinguished but rather that fair compensation has not been tendered therefor.
English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314, 96 L. Ed. 2d 250, 107 S. Ct. 2378 (1987). There is no violation of the takings clause unless and until a property owner unsuccessfully attempts to secure adequate compensation pursuant to state procedures provided for that purpose. Williamson Co. Regional Planning v. Hamilton Bank, 473 U.S. 172, 195, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985).
Pennsylvania provides appropriate procedures to seek compensation for the taking or injuring of property by formal declaration or by nonappropriative action which substantially deprives an owner of the beneficial use of his property. See 26 P.S. §§ 1-201 and 1-502; Gaughen v. Com. Dept. of Transp., 123 Pa. Cmwlth. 550, 554 A.2d 1008 (1989); Friedman v. City of Philadelphia, 94 Pa. Cmwlth. 572, 503 A.2d 1110 (1986); Petition of Borough of Boyertown, 77 Pa. Cmwlth. 357, 466 A.2d 239 (1983). Upon such occurrence, an owner is entitled to receive the full fair market value of his property based on consideration of the highest and best available use to which the property is adaptable. Com. Dept. of Transp. v. Becker, 118 Pa. Cmwlth. 620, 546 A.2d 1282 (1988). This includes compensation for the loss of value of a business license unaffected by any diminution of value caused by the taking of business property associated therewith. Redevelopment Authority of City of Philadelphia v. Royal Janet Corp., 42 Pa. Cmwlth. 456, 401 A.2d 17 (1979). Plaintiffs make no allegation that they have pursued unsuccessfully such procedures.
Plaintiffs do not make clear what the basis of their conspiracy claim is. In Count V they merely assert that defendants conspired to deprive them of property, presumably without due process, and of other unspecified rights secured by federal and state law.
To sustain a federal conspiracy claim under § 1985(3), plaintiffs must allege that the purported conspirators were motivated by a racial or class-based animus. Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Pratt v. Thornburgh, 807 F.2d 355 at 356-57 (3d Cir. 1986). See also Dunn, 681 F. Supp. at 251 (§ 1985 not provide remedy for conspiracy to deny due process rights). Plaintiffs make no such allegation.
While the existence of a conspiracy otherwise may supply the element of state action and expand the scope of liability through the concept of imputation, § 1983 does not provide a cause of action per se for conspiracy to deprive one of a constitutional right. Without an actual deprivation, there can be no liability under § 1983. See Kaplan v. Clear Lake City Water Authority, 794 F.2d 1059, 1065 (5th Cir. 1986); Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980); Dean Tarry, 650 F. Supp. at 1553 n. 15. Plaintiffs fail to allege with requisite specificity the particular objectives and means of the purported conspiracy as they may relate to an actual deprivation of an identified constitutional right. As noted, it appears from their complaint that plaintiffs have as yet not been deprived of property of or an opportunity to seek just compensation for any inverse condemnation they believe has occurred.
D. Pendent Claims
In Count III of their proposed Second Amended Complaint plaintiffs assert a claim for deprivation of property without due process in violation of Article I, Section 10 of the Pennsylvania Constitution. That provision protects persons accused of crime against double jeopardy and limits the Commonwealth's right of eminent domain. Article I, Section 1 embodies the concept of due process. The due process requirements of that provision, however, are virtually co-extensive with those of the Fourteenth Amendment. See Best v. Zoning Board of Adjustment of the City of Pittsburgh, 393 Pa. 106, 110-11, 141 A.2d 606 (1958).
In Count IV plaintiffs assert a claim for intentional interference with contracts. They fail, however, to identify an extant contract with a third party the performance of which improperly was interfered with. Plaintiffs do allege that defendants took steps to discourage persons from connecting to plaintiffs' sewage system and they identify several property owners with whom they were "discussing and negotiating" the prospect of such connections. Perhaps counsel meant to assert a claim for intentional interference with prospective contractual relations.
As noted, in Count V plaintiffs assert a claim for conspiracy in violation of state as well as federal law. The only objective of the alleged conspiracy specified by plaintiffs is the "deprivation of property." They do not make clear what property they have been deprived of or, if the absence of a reference to due process was unintentional, what process of law they have sought to avail themselves of and been denied. Plaintiffs may have a civil conspiracy claim but they have failed to plead it in a cogent, comprehensible manner.
The gist of plaintiffs' complaint is that their efforts to expand their business have been rebuffed by defendants pursuant to a statutorily authorized plan of the Township to centralize and assume responsibility for sewage disposal, and consistent therewith defendants discouraged or denied requests by property owners to connect to plaintiffs' system on the ground of lack of capacity. Plaintiffs have failed with requisite specificity to set forth something they are constitutionally entitled to which has been denied them. Their claim of deprivation of property without fair compensation is on its face anticipatory and, in any event, there is no allegation that they have pursued state procedures for obtaining just compensation for deprivation of or injury to property.
Plaintiffs had no reasonable expectation that they could maintain in perpetuity or expand and exploit in the most lucrative manner their sewage facility. Plaintiffs do not challenge the constitutionality of the Pennsylvania Sewage Facilities Act, 35 Pa. C.S.A. § 750.1 et seq., and do not contend that the public policy to which they object is not rationally related to legitimate governmental interests. What they characterize as abusive appears merely to be constitutionally permissible decisionmaking with which they are unhappy and which frustrates their desire to sustain a lucrative enterprise. Their allegations regarding the making of unfounded charges of regulatory violations are ambiguous. They seem to suggest not that no regulatory violation occurred but that because they resulted from defendants' refusal to permit plaintiffs to upgrade their facility, it is inappropriate to cite them for such violations.
It appears, however, that one or more of the defendants may have acted abusively or capriciously in implementing an otherwise permissible policy and in so doing conceivably caused injury to plaintiffs. The court thus will give plaintiffs one last chance to set forth a comprehensible, cognizable federal claim with requisite specificity if such can be done in good faith and consistent with applicable legal principles and precedent. Accordingly, the court will deny as futile plaintiffs' motion for leave to file the second amended complaint submitted and will grant defendants' motions to dismiss without prejudice. An appropriate order will be entered.
AND NOW, this day of January 14, 1993, upon consideration of plaintiffs' Motion for Leave to Amend Complaint and defendants' responses in opposition thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is DENIED.
BY THE COURT:
JAY C. WALDMAN, J.
AND NOW, this day of January 14, 1993, upon consideration of the Motion of defendants Sill, Scipione and Westtown Township to Dismiss Amended Complaint and the response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED and the above action is DISMISSED, without prejudice to plaintiffs to file within thirty (30) days hereof a third amended complaint setting forth a cognizable federal claim with requisite specificity if such can be done in good faith and consistent with the requirements of Fed. R. Civ. P. 10(b) and 11.
BY THE COURT:
JAY C. WALDMAN, J.
AND NOW, this day of January 14, 1993, upon consideration of the Motion of Pennsylvania Department of Environmental Resources and Joseph Feola to Dismiss Amended Complaint and the response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED and the above action is DISMISSED, without prejudice to plaintiffs to file within thirty (30) days hereof a third amended complaint setting forth a cognizable federal claim with requisite specificity if such can be done in good faith and consistent with the requirements of Fed. R. Civ. P. 10(b) and 11.
BY THE COURT:
JAY C. WALDMAN, J.