The opinion of the court was delivered by: McLAUGHLIN, U.S. District Judge.
Plaintiffs, the Pellegrino Food Products Company (hereinafter
"Pellegrino Foods"), Anthony Pellegrino, Sr., Angela M. Pellegrino and
Thomas Pellegrino, seek in this action damages and injunctive relief for
numerous alleged violations of 42 U.S.C. § 1983 (hereinafter "section
1983") and several state laws. See Complaint, ¶¶ 205-275. The case
arises out of Pellegrino Foods' efforts to expand and the resistance it
faced from Warren officials, neighborhood residents, and a law firm.
Presently before the Court are three motions: 1) a Motion to Dismiss
filed by the "City Defendants"*fn1; 2) a Motion to Dismiss filed by
Defendant Swanson, Bevivino, Gilford and Stewart, P.C. (hereinafter
"Swanson Bevivino"), a law firm; and 3) a Motion for Judgment on the
Pleadings filed by the "Neighbor Defendants."*fn2 For the reasons that
follow, we grant in part and deny in part the City Defendants' motion,
grant Swanson Bevivino's motion and grant in part and deny in part the
Neighbor Defendants' motion.
The allegations set forth in the Plaintiffs' Complaint are taken as
true for purposes of the motions before us, and are as follows:
Pellegrino Foods is a family-owned business that manufactures and sells
food products including peppers, strombolis, pizza bread and pot pies.
See Complaint ¶ 34. From the inception of the business in the early
1950s until 1972, Anthony and Angela Pellegrino operated it from the
basement of their home. In 1972, the company leased a room from the
Warren County Dairy Association Plant located at 100 Lookout Street in
Warren, Pennsylvania. The Pellegrinos purchased this plant in 1974, and
presently lease it to Pellegrino Foods. The Plant property has at all
times since the late 1800s been used for industrial and manufacturing
purposes. See Complaint ¶ 37.
In 1981, the City of Warren zoned the property R-2 residential despite
Plaintiffs' objections. See Complaint ¶ 40. The City of Warren uses a
grant program to encourage the growth of businesses within the city, and
Pellegrino Foods received a grant under this program in 1993 in the form
of a low-interest loan. See Complaint ¶ 50.
In an August 10, 1993 correspondence on Swanson Bevivino letterhead,
Bevivino submitted a number of arguments to the Zoning Hearing Board
regarding the special exception, including that the freezer was not a
"natural expansion," that it would be detrimental to the public welfare,
health and safety, that Pellegrino Foods would need to designate parking
spaces to obtain the special exception, and that the Zoning Hearing Board
should attach conditions to the special exception. See Complaint ¶
65. At the reconvened hearing on August 17, 1993, the Pellegrinos' noise
level expert testified that the Plant levels were in the permissible
range. Crozier, the Zoning Hearing Board Chairman, conducted an
independent investigation of the noise levels subsequent to the hearing.
See Complaint ¶ 68. By a second correspondence on Swanson Bevivino
letterhead dated August 31, 1993, Bevivino argued that Pellegrino Foods
did not meet the necessary requirements for a building permit. This
letter was sent to Dale Jones of the City's building permit office and
copied to City Solicitor William F. Morgan, all members of the Warren
City Council, and David Hildebrand. See Complaint ¶ 71. The special
exception was granted on September 24, 1993 subject to six conditions.*fn3
The Pellegrinos complied with these conditions and finished construction
of the freezer in December of 1993. See Complaint ¶¶ 77-78.
John R. Nemcovsky was elected Mayor of Warren in 1994. He owns and
operates Moldsmiths, Inc., a company that contracted with Kinzua Valley,
Inc. prior to his election. Kinzua Valley, a business owned and operated
by Thomas Pellegrino, brought suit against Moldsmiths to collect a debt
on this contract. This suit precipitated a threat by Nemcovsky that all
requests by Pellegrino Foods would be personally blocked by him if Thomas
Pellegrino did not absolve the Moldsmiths' debt. See Complaint ¶ 84.
On September 12, 1996, Pellegrino Foods and the Warren County School
District entered into an agreement of sale for 1.9 acres of school
property adjacent to the plant and valuable to the Pellegrinos because it
was landlocked. Shortly before the hearing on this matter, neighborhood
resident Michael J. Howe offered to purchase the property for $5,000.
Three of the four school board members residing in Warren publicly
announced their support for the sale but ultimately voted against the
agreement. See Complaint ¶ 98. The sale was approved by a 5-4 vote.
Pellegrino Foods agreed to pay the higher of two appraisal values for the
property, and the School Board thereafter petitioned the Court of Common
Pleas for the required approval of the sale. In this matter, the School
Board was represented by Arthur J. Stewart, a partner in the Swanson
Bevivino law firm, and the hearing was conducted by Judge Paul Millin, a
partner of both Stewart and Bevivino. See Complaint ¶ 111. Judge
Millin denied approval of the sale, and was reversed by the Commonwealth
The Complaint alleges that Warren's zoning ordinance requires
businesses to have a number of parking spaces corresponding to the size
of the business, and that Bevivino and the City conspired to limit the
number of parking spaces available to Pellegrino Foods. See Complaint
¶ 116. Bevivino wrote a letter to City Manager DuPont regarding the
parking area on the Lookout Street side of the property, and Zoning
Officer Worley instructed the Pellegrinos to stop using this parking area
by correspondence of September 10, 1998. The Zoning Hearing Board, upon
appeal by the Pellegrinos, affirmed Worley's decision. The Court of Common
Pleas reversed the decision of the Zoning Board. See Complaint ¶
On September 14, 1998, the Pellegrinos applied for a subdivision
approval in order to annex the School property to the Plant property. See
Complaint ¶ 130. This annexation was opposed by Bevivino and Planning
Commission members David See and James Carbon. Despite the Pellegrinos'
objections, the Planning Commission was represented by Swanson Bevivino
in this matter. In or about 1999, the City adopted a new Comprehensive
Plan and reaffirmed the residential classification of the plant
property, denying a request by the Pellegrinos to change the
classification to industrial and manufacturing. The Plaintiffs allege
that other property owners made similar rezoning requests that were
granted. See Complaint ¶ 139.
On March 22, 1999, the Pellegrinos applied for a special exception in
order to construct an addition to the plant. Shortly after this request,
neighbor defendant Glenn Belleau complained to the Warren police of noise
coming from trucks at the plant. The police issued a citation to
Pellegrino Foods based on this complaint. See Complaint ¶ 154.
Plaintiffs allege that the police have pulled over trucks traveling to
the Plant and harassed drivers of trucks parked at the Plant.
On April 19, 1994, upon receiving the Court of Common Pleas' decision
reversing the Zoning Board and permitting the Pellegrinos to use the
Lookout Street parking spaces, City Solicitor Morgan, Fire Chief
Pascuzzi, Zoning Officer Worley, Police Chief Poorman and City Manager
DuPont convened a meeting. See Complaint ¶¶ 155, 156. At this
meeting, the attendees discussed possible means of preventing Pellegrino
Foods from expanding. See id. According to the Plaintiffs, the attendees
resolved at this meeting to charge the Pellegrinos with noise violations
and harass the trucks traveling to and from the Plant property. See id.
Mayor Nemcovsky convened a meeting attended by Pascuzzi, Poorman,
Worley, Morgan, DuPont, and William A. Bevivino on May 3, 1999 for the
purpose of determining whether criminal charges could be filed against the
Pellegrinos for violations of the 1993 special exception's conditions.
See Complaint ¶ 162. The attendees suggested that a list of people
provided by Bevivino could be contacted and asked to complain about
Pellegrino Foods if no complaints had been filed. See complaint ¶
163. A similar meeting was held on May 5, 1999. See Complaint ¶ 164.
Belleau complained a second time to the police of noise emanating from
the plant, purportedly to fabricate evidence for a criminal charge.
Zoning Hearing Board attorney Fraser advised Worley that there was no
basis for enforcement action against Pellegrino Foods. Plaintiffs claim
that other businesses in Warren are located in largely residential areas
and generate noise levels higher than the level generated by the
Pellegrino Foods Plant. See Complaint ¶ 169.
Several days prior to a scheduled hearing on Pellegrino Foods' proposed
expansion, Zoning Board member George Crozier traveled door to door
soliciting opinions on the expansion, and several days after the
hearing, Board member Donald Davis conducted a similar inquiry. See
Complaint ¶¶ 174, 179. The hearing itself was held on May 20, 1999,
and was attended by the Neighbor Defendants. The Board granted the
expansion, subject to eight conditions alleged by the Pellegrinos to
be unlawful, improper, and imposed in order to provide a basis for
future harassment and make the expansion of Pellegrino Foods
cost-prohibitive.*fn4 See Complaint ¶¶ 183-188. The Pellegrinos and
the neighbor defendants took separate appeals to the Zoning Board's
decision, and the Pellegrinos' appeal is currently pending in the
Court of Common Pleas of Warren County. Notwithstanding this appeal,
Plaintiffs allege that Pellegrino Foods complied with each of the
eight conditions and was nonetheless denied the necessary permits by
Zoning Officer Worley. See Complaint ¶¶ 191-193. Worley said he
would not give the Pellegrinos the foundation permit for the expansion
until an electrical and mechanical plan, which was not one of the
original eight conditions, was submitted. A similar plan was not
required for any other construction project in the city. To compel
the issuance of the needed permits, Pellegrino Foods brought a mandamus
action against the City. In response, Solicitor Morgan stated that the
necessary permits would be issued if Pellegrino Foods agreed to a general
release for all harm caused by the City. The Plaintiffs refused to give
this release, and allege that the City filed frivolous motions in the
mandamus action in retaliation. See Complaint ¶ 200. On October
16, 2000, the Court of Common Pleas granted the Defendants' Motion for
Summary Judgment in the mandamus action.
Plaintiffs filed this action on May 26, 2000. They seek damages and
permanent injunctive relief for violations of section 1983 and conspiracy
to violate section 1983,*fn5 and damages for the tortious interference
with business relationships, violation of the Pennsylvania Dragonetti
Act, 42 Pa.C.S.A. § 8351, and abuse of process.*fn6
A motion for judgment on the pleadings is not granted "unless the
movant clearly establishes that no material issue of fact remains to be
resolved and that he is entitled to judgment as a matter of law."
Jablonski v. Pan American World Airways, 863 F.2d 289, 290 (3d Cir. 1988)
(quoting Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d
Cir. 1980)). A motion to dismiss is not granted unless the claimant would
not be entitled to relief under any set of facts that could be
established in support of. his or her claim. Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A motion for
judgment on the pleadings pursuant to Rule 12(c) and a motion to dismiss
pursuant to Rule 12(b)(6) are assessed under the same standard. See
Bensinger v. Fanrock, 1999 WL 1081051, *1 (E.D.Pa. Dec. 1, 1999) (citing
Constitution Bank v. DiMarco, 815 F. Supp. 154, 156 (E.D.Pa. 1993).
Respecting both, this Court must accept all well-pleaded allegations in
the complaint as true and view them in the light most favorable to
plaintiffs. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1420 (3d Cir. 1997).
The City Defendants raise seven arguments in support of their Motion to
Dismiss and incorporate several additional arguments from Swanson
Bevivino's Motion to Dismiss. We examine each in turn.
1. Plaintiffs' Failure to Join the Zoning Hearing Board
as a Defendant
The City Defendants first argue that the Plaintiffs' failure to join
the Zoning Hearing Board is fatal to their civil rights claims.
Specifically, they contend that because the Board possesses the sole power
to grant or deny Plaintiffs' land use requests under Pennsylvania law and
Plaintiffs' civil rights claims arise from unfavorable land use
decisions, it is the only appropriate party to the claims. Extending this
argument, the City Defendants argue that all civil rights claims against
the non-Zoning Board City Defendants should be dismissed because they
have no statutory authority to make land use determinations and made no
such determinations in this case. See Defendant's Brief in Support of
Motion to Dismiss at 3.
We disagree. Initially, it is unnecessary for the Plaintiffs to name
the Zoning Board as a defendant. The Complaint names three Board members
in their official capacities as defendants, and because these members
work through the Zoning Board, the Plaintiffs have for all intents and
purposes named the Zoning Board itself. See Kentucky v. Graham,
473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("As long as the
government entity receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be treated
as a suit against the entity.").
At the time Plaintiffs commenced this action, two appeals were pending
in the Court of Common Pleas of Warren County. As represented at oral
argument, one of these appeals, Plaintiffs' challenge to the Zoning
Board's 1999 special exception decision, is still pending. The other
appeal, Plaintiffs' request for a Writ of Mandamus to compel the issuance
of a building permit, was decided in favor of the Defendants prior to
oral argument but after pleadings had been filed in this action. The City
Defendants argue that the first appeal bars Plaintiffs' causes of action
that are attempts to "litigate, relitigate, or enjoin" the issues raised
in this proceeding under the doctrine of Younger abstention,*fn7 and
that the decision in the mandamus action bars Plaintiffs' selective
enforcement claim under the doctrine of collateral estoppel.*fn8
The decision to abstain is an extraordinary one. Although federal
courts have discretion to grant or deny certain forms of relief, the
scope of federal jurisdiction is determined by Congress. See New Orleans
Pub. Serv. v. Council of New Orleans, 491 U.S. 350, 357-60, 109 S.Ct.
2506, 105 L.Ed.2d 298 (1989). Due to this division of authority, the
doctrine of abstention is "an extraordinary and narrow exception to the
duty of a District Court to adjudicate a controversy properly before it.
. . ." Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (quoting County
of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 3
L.Ed.2d 1163 (1959)). Younger abstention is applicable only when: 1)
there are ongoing state proceedings that are judicial in nature; 2) the
state proceedings implicate important state interests; and 3) the state
proceedings afford an adequate opportunity to ...