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January 14, 1993


The opinion of the court was delivered by: BY THE COURT; JAY C. WALDMAN


 January 14, 1993


 Presently before the court is plaintiffs' Motion for Leave to File a Second Amended Complaint and defendants' Motions to Dismiss Plaintiffs' Amended Complaint. *fn1"


 A party may amend its pleading once as a matter of course and otherwise only by leave of court that "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 613 (3d Cir. 1987). A court may deny leave to amend when the proposed amendment would be futile, that is it would not cure the asserted defect. Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)). In this case, the filing of an amended complaint would be futile if it could not withstand a Rule 12(b)(6) motion.

 In deciding a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Dismissal is not appropriate unless it clearly appears that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). A complaint may be dismissed when the facts pled and the reasonable inferences derived therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988). Civil rights claims must be set forth with specificity. Ross v. Meagan, 638 F.2d 646, 650 (3d Cir. 1981); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976).


 The factual allegations construed most favorably to plaintiffs are as follow. Plaintiff DeFeo has owned and operated the Westtown Sewer Company since 1965. The company operates a sewage collection, treatment and disposal facility utilizing property "some of which" is owned by Mr. DeFeo. Plaintiff sewer company operates pursuant to a public utility franchise from the Pennsylvania Public Utilities Commission ("PUC") and is subject to regulation by the DER.

 Defendant Feola is the manager of the DER water quality program for Southeastern Pennsylvania and has responsibility for overseeing sewage collection, treatment and disposal plants, and local planning for sewage service. Defendants Sill and Scipione are members of the Board of Supervisors of Westtown, the township in which plaintiff sewer company is located. The individual defendants are being sued for actions allegedly undertaken in their official capacities.

 Plaintiffs allege that defendants collaboratively adopted and implemented policies which encourage townships to assume control of privately owned sewage facilities such as plaintiff DeFeo's, in part as an alternative to building new public facilities. In so doing, the township defendants allegedly used or misused their governmental powers to undermine the ability of the sewer company to operate profitably and to acquire plaintiffs' property without adequate compensation.

 Plaintiffs assert that they have "exhausted" their administrative remedies and that a DER administrative law judge and Environmental Hearing Board refused to hear their constitutional claims. *fn2"

 Some of these allegations may be actionable. They do not, however, appear to support the federal causes of action asserted by plaintiffs in their third confusing and inartful attempt to plead. Any federal claim which may be cognizable is still difficult to discern in counts that are both multiplicitous and duplicitous and in language that is ambiguous and conclusory. The frustration expressed by defendants in this regard is not unjustified but, contrary to their contention, does not constitute the type of prejudice to them which alone might warrant dismissal without leave further to amend. See Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984), cert. denied, 469 U.S. 1122, 83 L. Ed. 2d 799, 105 S. Ct. 806 (1985).


 In Count I plaintiffs assert that defendants deprived them of property including real estate, their public utility franchise, business good will and reputation and the right to operate a business. Although not stated, the court assumes that plaintiffs meant to claim that this happened without due process or in a manner that was otherwise unlawful. Plaintiffs also assert in Count I that defendants denied them equal protection of the laws, and deprived plaintiff DeFeo of the right to hold property in violation of the privileges and immunities clause of Article IV, Section 1 of the Constitution.

 In Count II plaintiffs assert that they were denied property without due process in violation of the Fifth and Fourteenth Amendments. The court assumes from the use of the language "without appropriate procedures" that plaintiffs are claiming a denial of procedural due process. Plaintiffs further allege in Count II that they were pressured by defendants to give up property without just compensation. The court assumes that plaintiffs mean thereby to assert a claim under the takings clause of the Fifth Amendment.

 In Count III plaintiffs assert that they were deprived by defendants of property without due process of law, in violation of the Pennsylvania Constitution.

 In Count IV plaintiffs assert that defendants interfered with plaintiffs' contracts with third parties.

 In Count V plaintiffs assert that defendants conspired to deprive them of property, presumably without due process or in some unlawful manner, and of other unspecified ...

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