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December 6, 2000


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.

Pellegrino Foods applied for a building permit on June 14, 1993 in order to construct a 40' by 65' freezer unit on the Plant property. Santo Pascuzzi, the chief of the Warren fire department and overseer of the Warren Zoning Officer, replied by correspondence of July 2, 1993 that the permit could not issue absent a special exception from the Zoning Hearing Board. See Complaint ¶ 53. Pellegrino Foods applied for the required exception and attended hearings on the matter. William A. Bevivino, one of the neighbor defendants and a partner in the Swanson Bevivino law firm, attended these hearings and voiced opposition to the expansion. See Complaint ¶ 59. Bevivino specifically argued that noise caused by trucks at the Plant exceeded permissible limits. The Zoning Board required Pellegrino Foods to retain an expert to measure the noise emanating from the Plant, and the Pellegrinos complied with this requirement. See Complaint ¶ 64.

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 former law partner of both Stewart and Bevivino. See Complaint ¶ 111. Judge Millin denied approval of the sale, and was reversed by the Commonwealth Court.

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 ¶ 127.

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).


A. The City Defendants

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.").

We also find that the Complaint sufficiently alleges joint and concerted activity such that the City Defendants who are not members of the Zoning Board are proper defendants to the civil rights claims. In our discussion in section A.8 infra, we dismiss all claims against seven City Defendants but find that the Plaintiffs' allegations against those that remain are sufficient to infer the personal involvement necessary to establish a section 1983 claim. These Defendants include the Mayor, the City Manager, the Zoning Officer, the City Solicitor, the Police Chief, and the Fire Chief, all of whom are alleged to have participated in one or more meetings specifically intended to prevent Pellegrino Foods from expanding. See Complaint ¶¶ 155-56, 162-64. We therefore do not dismiss them from the Plaintiffs' civil rights claims.

2. Younger Abstention

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 ...

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