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KAEHLY v. CITY OF PITTSBURGH

March 3, 1997

CHARLES KAEHLY, STEVEN KAEHLY, MICHAEL VETTER, ROBERT RICE, MICHAEL ROSSMAN, PAUL SWEENY, WILLIAM MARSH, and KAREN PAULETT, Plaintiffs,
v.
CITY OF PITTSBURGH and STADIUM AUTHORITY OF PITTSBURGH, Defendants.



The opinion of the court was delivered by: BLOCH

MEMORANDUM OPINION

 BLOCH, District J.

 Presently before the Court is defendants' joint motion to dismiss or, in the alternative, to stay. For the reasons set forth in this opinion, the Court will grant defendants' motion in part and deny it in part.

 I. Background

 Each of the plaintiffs were issued a vending license which expired on or about January 31, 1996, by defendant City of Pittsburgh (City) pursuant to City of Pittsburgh Ordinance No. 719. In December, 1995, defendant City amended Ordinance No. 719 effective December 15, 1995, to, inter alia, prohibit vending on or within thirty feet of Three Rivers Stadium property. Prior to its amendment, Ordinance No. 719 permitted vending on or around Three Rivers Stadium property subject to a 250-foot restriction from the outside wall of the Stadium.

 Three Rivers Stadium property is owned and controlled by the defendant Stadium Authority of the City of Pittsburgh (Stadium Authority). Daniel Onorato is both a Pittsburgh City Council member and a member of the defendant Stadium Authority. Onorato was the sponsor of Bill No. 2601 which amended Ordinance No. 719.

 The Stadium Authority is party to an exclusive Concession Services Agreement (CSA) with Pittsburgh Stadium Concessions, Inc. The CSA, which currently extends until December 31, 1998, grants Pittsburgh Stadium Concessions, Inc., the exclusive right and privilege to sell food, beverages and related services to the public at locations on Stadium Authority property.

 Plaintiffs contend that the effect of amending Ordinance No. 719 was a revocation of their vending licenses because the vast majority of plaintiffs' vending revenue was generated while vending on Three Rivers Stadium property. Accordingly, plaintiffs filed the within action alleging: (1) deprivation of plaintiffs' substantive due process rights (Count I); (2) deprivation of plaintiffs' procedural due process rights (Count II); (3) deprivation of plaintiffs' right to equal protection (Count III); (4) violation of federal antitrust laws (Count IV); (5) violation of 42 U.S.C. § 1983 (Count V); (6) violation of Article 1, Section 1 of the Pennsylvania Constitution (Count VI); (7) violation of Article 2, Section 1 of the Pennsylvania Constitution (Count VII); and (8) violation of Article 1, Section 26 of the Pennsylvania Constitution (Count VIII).

 II. Motion to dismiss standard

 A motion to dismiss for failure to state a claim, filed pursuant to Fed. R. Civ. P. 12(b)(6), serves to test the sufficiency of a complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Because dismissal under Rule 12(b)(6) results in a determination on the merits at any stage in the plaintiffs' case, the plaintiffs are afforded the safeguard of having all of their allegations taken as true and all reasonable factual inferences drawn in their favor. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985). When considering defendants' motion to dismiss, the question before this Court is not whether the plaintiffs will ultimately prevail; rather, it is whether the plaintiffs can prove any set of facts in support of their claim that would entitle them to relief. Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). It is axiomatic that a complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See also Cruz v. Beto, 405 U.S. 319, 320, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (citing same).

 III. Discussion

 Defendants argue that this Court must dismiss Counts I through VIII of plaintiffs' complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiffs have failed to state a claim upon which relief may be granted. *fn1" Defendants also ask this Court to certify plaintiffs' state constitutional claims to the Commonwealth Court of Pennsylvania which has jurisdiction of a substantially similar parallel state action. Finally, defendants argue that this Court should "abstain from accepting jurisdiction of this Civil Action either by dismissing the plaintiffs' complaint, without prejudice, or, in the alternative, stay this Civil Action pending final disposition of the parallel state action." (Defendants' motion at P5). The Court will now consider the defendants' contentions.

 A. Plaintiffs' substantive and procedural due process claims

 In Count I of their complaint, plaintiffs contend that the City deprived them of a property interest in violation of both the federal and state Constitutions by effectively revoking their business licenses. In addition, Count II contends that the plaintiffs' procedural due process rights were violated as a result of the process whereby Ordinance No. 719 was amended. Defendants contend that the complaint fails to set forth a protected property interest and that, therefore, Counts I and II must be dismissed.

 To state a valid claim for deprivation of substantive due process or deprivation of procedural due process, a plaintiff must set forth a protected property interest. See, e.g., Independent Enterprises, Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1997 WL 6335 at *10-13 (1997). While conceding that a vending license is a protected property interest, defendants, relying upon Lindsay v. City of Philadelphia, 863 F. Supp. 220, 223 (E.D. Pa. 1994), contend that there is no constitutionally protected property interest to vend in a particular location. (Defendants' brief at p. 3). The Court agrees. However, in Lindsay, the plaintiffs did not argue that their licenses had been revoked, only that they were removed from their customary vending locations. See Lindsay, 863 F. Supp. at 223. Plaintiffs in the instant case are not seeking access to an exclusive or customary location on Stadium Authority property. Rather, plaintiffs contend that by amending Ordinance No. 719, defendants effectively revoked plaintiffs' licenses by prohibiting them from vending anywhere on Stadium Authority property, where plaintiffs allegedly earn the majority of their income.

 Accordingly, utilizing the lenient standard set forth above, the Court finds that dismissal of Counts I and II of the complaint at this early stage of the proceedings would be inappropriate. Specifically, the Court cannot find that the plaintiffs would be unable to prove any set of facts in support of their claims that would entitle them to ...


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