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March 11, 2002


The opinion of the court was delivered by: Franklin S. Van Antwerpen, U.S.D.J.

                  OPINION AND ORDER


Plaintiffs Gary Grimm ("Gary Grimm") and Grimm Brothers Realty Company ("Grimm Brothers") have brought this action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants Borough of Norristown ("the Borough"), Charles R. Sweeney ("Sweeney") and Thomas M. O'Donnell ("O'Donnell") violated plaintiffs' rights under the First and Fourteenth Amendments of the United States Constitution.*fn1 They have also brought several pendant state law claims.*fn2 Plaintiffs also have a matter pending in the Court of Common Pleas of Montgomery County, Pennsylvania.

Presently before this Court are Plaintiffs' Motion for Partial Summary Judgment, filed on January 4, 2002, and Defendants' Motion for Summary Judgment, filed on January 4, 2002. Oral argument on these motions was held on February 13, 2002. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343 and 1367.


The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2505.

Where the parties submit cross-motions for summary judgment*fn3, the court must consider the merits of each motion and, for each, view all evidence in the light most favorable to the non-moving party, draw all reasonable inferences in favor of the non-movant and, where the evidence cited contradicts that invoked by the moving party, take the non-moving party's version as true; the standard of review does not change merely because the parties have filed cross-motions for summary judgment. Gavigan v. The Southland Corp., No. Civ.A. 97-2807, 1998 WL 103380, at *1 (E.D.Pa. Feb. 28, 1998). The fact that the parties file cross-motions for summary judgment does not require the court to grant summary judgment for either party; courts will sometimes find that both motions must be denied. See id. On the other hand, where the facts are largely uncontested and the issues are legal ones, the court itself may resolve the issues.


The Parties

Gary Grimm is the president and sole officer of Grimm Brothers, a company that owns and rents several properties in the Borough.*fn4 Three of Grimm Brothers' properties, located at 857 Cherry Street, 837 Swede Street and 839 Swede Street, are the subject of this suit and the motions before this Court. The properties are located near to one another.

Since 1997 Gary Grimm has been involved with the Norristown Association of Investment Landlords ("NAIL"), first as a member and, for the past four years, as NAIL's Director of Public Relations. In 1994, 1995 and 1997, plaintiffs and other NAIL members filed lawsuits that challenged licensing fees imposed by the Borough. The various lawsuits were settled simultaneously in November of 1999. Gary Grimm is also a member of the Norristown Initiative ("NI"), an organization created by the Montgomery County Commissioners; Gary Grimm served as Chairman of NI's Code Enforcement Committee. In his capacity as a NAIL Director and as an NI Chairman and through the filing of lawsuits against the Borough, Grimm has interacted with Borough officials, including defendants O'Donnell, an Assistant Building Inspector for the Borough of Norristown, and Sweeney, the Borough of Norristown's Fire Marshal.

Factual Overview

Beginning in March of 2000, defendants O'Donnell and Sweeney issued condemnation notices and several citations against Gary Grimm and Grimm Brothers because of alleged building code violations on Grimm Brothers' properties. Plaintiffs allege that O'Donnell and Sweeney took these actions in retaliation against Gary Grimm and Grimm Brothers for their participation in NAIL and NI and for their filing of lawsuits against the Borough and Borough officials. The facts pertaining to each of the citations are recounted herein.

837 Swede Street

On or about March 7, 2000, there was a fire at plaintiffs' 837 Swede Street four-unit apartment house which required the response of the fire department. According to plaintiffs, the fire was confined to the apartment in which the fire started; smoke damage extended to the building's common areas and water from the fire-fighting effort affected the first floor and the basement walls near the electrical panel. According to defendants, the fire was "substantial." On March 7, 2000, Sweeney notified Gary Grimm by letter that "[t]he fire heavily damaged the structural elements of [the] apartment with light to moderate smoke conditions throughout the second and third floor apartments" and that water that was used to extinguish the fire traveled "down through the walls and floors of the structure damaging the main electrical service that provides electricity to the entire building." It stated that "[d]ue to the damages caused by the fire we have deemed the entire building at 837 Swede Street unsafe and unfit for human habitation and have condemned the property." The condemnation was made pursuant to The BOCA National Existing Structures Code ("BOCA Code"), promulgated by the Building Officials and Code Administrators International, Inc.' ("BOCA") and corresponding Borough ordinances.*fn5

On the same day, plaintiffs had Gambino Electric, an electrical contractor certified by the Borough, inspect the property. Gambino Electric concluded that excluding the office space used by Grimm Brothers and the apartment in which the fire had started, the building's electrical system could be safely operated. Gambino Electric gave plaintiffs a written certification of its findings, and plaintiffs provided this certification to the Borough. The Borough did not however rescind the condemnation, and the tenants were not allowed to return to their apartments. Plaintiffs then employed the services of Middle Department Inspection Agency, Inc. in another effort to have the condemnation rescinded. Middle Department, Inc.'s March 9, 2000 evaluation was that the electrical wiring met the standards of the National Electric Code and plaintiffs notified defendants of this. The Borough again did not rescind the condemnation.

Sweeney wrote to plaintiffs on March 13, 2000, notifying them of the conditions that would have to be corrected before the condemnation would be lifted. These conditions included: (1) providing a certificate from an electrical underwriter that they electrical system was safe; (2) ensuring that no more than three unrelated persons were not living within one unit; (3) allowing for an inspection to ensure that all damaged doors and windows had been repaired and that all fire extinguishers and smoke detectors were operational; (4) clearing the basement of all combustible and flammable materials and ceasing all warehouse-storage-shop operations in the basement or separating the basement-warehouse-storage-shop area from the first floor offices and rental units with a fire separation and (5) providing a current list of businesses operating out of the first floor, with the name of the responsible party and his/her phone number.

With respect to these conditions, plaintiffs contend that (1) they had already provided a certificate from an electrical underwriter to Sweeney; (2) the number of individuals residing in the apartment in question did not exceed the maximum number allowed by law; (3) the doors, windows, fire extinguishers and smoke detectors were repaired within a week of the fire; (4) the combustibles and flammables were eventually removed even though the code did not require their removal and the fire rated ceiling was not installed because the code did not require such installation; and (5) Gary Grimm advised the Borough that it could contact all businesses through him and that he was not required to supply a list of all businesses operating out of the first floor.

From March through April, 2000, Gary Grimm and Sweeney continued to exchange correspondence. Gary Grimm alleges that Borough officials repeatedly imposed new conditions that would have to be met before the condemnation would be rescinded, including the installation of a fire suppression system in the basement.

On April 19, 2000, when Sweeney and Lynn Bixler, the Borough's Building Inspector, arrived at the appointment to inspect the premises, Gary Grimm and others were on the premises. According to Gary Grimm, workers were there salvaging business records and making repairs to the areas damaged by the fire; defendants dispute this. On April 19, 2000, Sweeney issued a citation to Gary Grimm for "occupying a condemned building" and in his deposition mentioned that workers were not allowed on the premises without a permit from the Borough. Plaintiffs point out, however, that no such permit is available under the Borough code. A state court found Gary Grimm not guilty of the April 19 offense.

On April 30, 2000, Sweeney observed Gary Grimm entering the condemned building and cited Gary Grimm for being "found within a condemned building." Plaintiffs note that Gary Grimm had previously obtained Borough permits to make repairs to the premises. They highlight that Sweeney issued the citation without first investigating why Gary Grimm was on the premises and whether he was there lawfully. A state court also found Gary Grimm not guilty of the April 30 offense.

The 837 Swede Street apartment remains condemned, and the tenants cannot occupy it.

839 Swede Street

On July 12, 2000, O'Donnell mailed a warning to Grimm Brothers giving it 48 hours from the date of the warning to remove the weeds from the front of the 839 Swede Street apartment. Gary Grimm claims that he did not receive the warning until July 17, 2000. At that time, he cut the growth and notified O'Donnell of this by fax. On July 17, 2000, O'Donnell issued a citation against Grimm Brothers for not cutting the growth within the allotted time.

Defendants emphasize that O'Donnell sent similar warnings to thirty-eight other property owners at the same time, and that he cited six to ten property owners for the failure to cut the weeds within 48 hours. Plaintiffs point out that the notice allowed for only 48 hours from the date that the warning was written to comply and suggest that because the warning was mailed, this request could not possibly have been met. A state court also dismissed O'Donnell's weed cutting citation.

857 Cherry Street

Facts Involving Condemnation of Basement of 857 Cherry Street

On June 14, 2000, Matthew Wakefield ("Wakefield"), a tenant in the basement of plaintiffs' 857 Cherry Street apartment, wrote a letter to Gary Grimm requesting that certain repairs be made and declaring that he would not pay his July rent until his requests were met. Mr. Wakefield then lodged a formal complaint with the Borough Building Inspector's office. Wakefield allowed O'Donnell to inspect the basement. On August 10, 2000, O'Donnell issued a citation to Grimm Brothers for failing to obtain a use and occupancy certificate when the basement tenancy changed. Plaintiffs contend that no use and occupancy certificate was required by law. A state magistrate found Grimm Brothers guilty of this offense; the matter is currently on appeal with the Court of Common Pleas of Montgomery County, Pennsylvania.

O'Donnell also notified plaintiffs by letter dated August 10, 2000 that he was condemning the basement of 857 Cherry Street. The reasons for the condemnation included: (1) there was no zoning for a second business in the basement; (2) plaintiffs had not obtained the necessary use and occupancy certificate; (3) the basement lacked sanitary facilities; (4) there was a sewage back-up; (5) the basement lacked an approved fire-rated assembly to separate tenant spaces; (6) the ingress and egress doors were padlocked and (7) the interior had been altered without approval.

Plaintiffs point out that at this time, they learned that complainant Wakefield was using the basement to restore antique cars and to store lawnmowers and that they were engaged in a dispute with him because this conduct violated the terms of his lease. With respect to each of the conditions, plaintiffs maintain that: (1) the property was properly zoned; (2) the use and occupancy certificate was not required; (3) Wakefield had broken the toilet; (4) there was no sewage back-up; (5) the fire-rated separation was not required by law; (6) Wakefield had attached the padlocks and plaintiffs had thereafter removed them and (7) the basement alterations were made at Sweeney's direction.

Facts Involving Apartment Units Located at 857 Cherry Street

On August 14, 2000, O'Donnell conducted an annual inspection of the apartment units located at 857 Cherry Street. O'Donnell noticed several violations of the BOCA code and ordered that defendants (1) inspect the fire extinguisher at the side exit to the fire escape; (2) move the trash from the hallway; (3) check all smoke detectors to ensure their proper operation; (4) inspect and maintain all fire extinguishers for the calendar year and (5) install screens in windows. O'Donnell ordered that these conditions be met within thirty days and scheduled a re-inspection for Sept. 14, 2000. According to defendants, this notice was handed to plaintiffs' agent or mailed to Gary Grimm. Gary Grimm did not appear at the scheduled inspection, but sent a fax on September 17, 2000 apologizing for missing the appointment and indicating that he did not have notice of the appointment. Defendants claim that Gary Grimm failed to appear for the inspection again on September 26, 2000. On September 26, 2000, O'Donnell sent a letter rescheduling the inspection appointment for October 10, 2000. The letter indicated that if Gary Grimm failed to appear at the appointment, he would be cited for non-compliance. By letter to O'Donnell on October 5, 2000, Gary Grimm explained that he had no notice of the September 14, 2000 scheduled inspection. Gary Grimm also stated that one of Grimm Brothers' employees had met O'Donnell at the property on September 26, 2000 and had provided access to the basement to him. In this letter, Gary Grimm stated that he believed he was "a target of the Borough" and "den[ied] any further access by Borough employees into any of [his] properties."

Defendants point out that the inspection of the basement was a matter separate from the inspection of the apartments:

"[a]lthough Mr. Grimm contends that he made the basement available to Mr. O'Donnell for inspection on September 26, 2000, Mr. O'Donnell sought to inspect the apartment complex itself and not just the basement to make sure the code violations had been remedied."

(Defs.' Opp. Brief to Pls.' Mot. for Partial Sum. Judg. at 2 fn. 2.)

Plaintiffs did not appear for the October 10, 2000 inspection. On October 11, 2000, O'Donnell issued a citation to Grimm Brothers for "refus[ing] free access to the building to conduct proper inspections by Borough Code officials." Plaintiffs point out that under the BOCA code and Borough ordinances, O'Donnell was not authorized to issue a citation for the refusal of access; he should have instead sought a cease and desist order or a search warrant to conduct the inspection.

On October 11, 2000, O'Donnell obtained a court-issued search warrant to inspect 857 Cherry Street; this warrant authorized the inspection of the entire building and allowed the inspection for the purpose of determining whether the violations found during the August 14, 2000 inspection had been corrected. O'Donnell inspected the building and on October 11, 2000 also issued a citation to Grimm Brothers for failing to correct "all building, safety, fire and electrical violations in the time specified by the Code official." Grimm Brothers was found guilty of this latter violation.

On August 25, 2000, O'Donnell also issued a citation to Grimm Brothers for permitting workers to enter the condemned 857 Cherry Street property. Plaintiffs point out that they had submitted a list of proposed repairs to O'Donnell in advance and had sent a fax requesting permission to go onto the premises to make the listed repairs. Defendants claim that the citation was issued because plaintiffs had not obtained and completed a permission slip from the Borough. The Borough withdrew this citation in November of 2000.

Thereafter, on September 7, 2000, O'Donnell requested a permission slip; O'Donnell responded that before he could issue a permission slip, plaintiffs would have to specify the repairs to be made and obtain the necessary permits. On September 8, and 9, 2000, plaintiffs faxed O'Donnell, explaining that they wished to make general repairs that did not require a permit. O'Donnell explained that this request was not sufficient because plaintiffs had not filled out a Borough form requesting a permission slip. The basement of 857 Cherry Street remained condemned until November 2, 2000.

F. Factual Summary

From March of 2000 through October of 2000, defendants issued two condemnation notices and eight citations against Gary Grimm and Grimm Brothers that are at issue here. Two citations resulted in not guilty verdicts; two of the citations were dismissed by the state court, one was withdrawn, and two others have resulted in guilty verdicts and are currently on appeal in the state court system.*fn6 Plaintiff contend that defendants issued the condemnation actions and all of the citations in retaliation for plaintiffs' exercise of constitutionally protected activities in violation of federal and state law.


Jurisdictional Issues

There are several threshold jurisdictional issues for decision.

Rooker Feldman Doctrine

At oral argument on the parties' motions for summary judgment, this Court noted the existence of a state court action and raised the question of whether the Rooker-Feldman doctrine deprives this Court of subject matter jurisdiction over this case. The parties have since submitted supplemental briefs on this issue, and we thank them for doing so.

a. Rooker Feldman Principles

Section 1257 of Title 28 of the United States Code provides that "[f]inal judgments or decrees rendered by the highest court of a state in which a decision could be had, may be reviewed by the Supreme Court. . . ." The negative implication of this rule, as set forth in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 206 (1983) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), is that lower federal courts lack subject matter jurisdiction to review final judgments of the highest court of the respective states. E.B. v. Verniero, 119 F.3d 1077, 1090 (3d Cir. 1997). The Third Circuit has interpreted the Rooker-Feldman doctrine to encompass final decisions of lower state courts as well. Id.

When a plaintiff seeks to litigate a claim in a federal court, the existence of a state court judgment in another case bars the federal proceeding under Rooker-Feldman only when entertaining the federal claim would be the equivalent of an appellate review of that order. For that reason, Rooker-Feldman applies only when in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render the judgment ineffectual. FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1992) (citations omitted).

b. Defendants' Position as to Applicability of Rooker Feldman

Defendants assert that the Rooker-Feldman doctrine bars this Court from adjudicating plaintiffs' constitutional claims. They point out that plaintiffs have made three motions in the state court action to have the condemnation of 837 Swede Street lifted, and that the state court, after a full hearing on each of the motions, has denied all three motions. They argue that if this Court were to find that defendants issued the condemnation, and kept it in place, out of retaliatory motives, it would have to find that there was no merit to the condemnation and, thus, would have to overrule the state court's decisions. Defendants contend that plaintiffs raised the retaliation issue before the state court, and that the state court rejected plaintiffs' allegation of retaliation; according to defendants, to find in plaintiffs' favor on the retaliation claim would require a determination that the state court's decision was erroneous. Alternatively, defendants suggest that the retaliation claim is inextricably intertwined with the decision to condemn the property and the refusal to lift the condemnation; they suggest that in order to find that defendants retaliated, there must be a finding that the condemnation was not proper.

c. Plaintiffs' Position as to Applicability of Rooker-Feldman

Plaintiffs, on the other hand, argue that application of the Rooker-Feldman doctrine is inappropriate. They assert that there was no final adjudication that would warrant the application of Rooker-Feldman. They point out that the case has not proceeded to trial and assert that none of the motions or corresponding court orders resolved the constitutional issues presently before this Court. Additionally, they point to two additional bars to the application of the doctrine. First, application of this jurisdictional bar is inappropriate because Gary Grimm is not a party to the state court action. Second, because the condemnation case filed in state court concerns only the condemnation of 837 Swede Street, and not the condemnation of the basement of 857 Cherry Street or the citations issued against Gary Grimm and Grimm Brothers, application of the jurisdictional bar is inappropriate.

d. Applicability of Rooker Feldman Doctrine

As a preliminary matter, we agree with plaintiffs that the Rooker-Feldman doctrine does not bar this Court from hearing Gary Grimm's claims because he is not a party to the state court proceeding. See Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994) (holding that Rooker-Feldman did not bar district court from hearing claims of Latino plaintiffs who were not parties to the state court proceedings). Second, we agree that the application of the Rooker-Feldman doctrine would be limited to that which is the subject of the state court proceeding-that is, the condemnation of 837 Swede Street and any of the citations pertaining thereto that may have been challenged in the state court.

Turning to whether the Rooker-Feldman doctrine bars this Court from hearing the constitutional claims arising from that which is also the subject of the state court proceedings, we first note that the state case has not proceeded to trial, and that the only orders that the state court has entered are denials of three motions for a preliminary injunction and/or a temporary restraining order filed in an attempt to allow the tenants to re-occupy the property. We consider then whether the denial of a motion for a preliminary injunction is the type of adjudication that calls the Rooker-Feldman doctrine into play. The Third Circuit has stated that an order denying a motion for a preliminary injunction may trigger the application of the Rooker-Feldman doctrine. See Port Auth. Police Benevolent Assoc. v. Port Auth. of New York and New Jersey Police Dept., 973 F.2d 169 (3d Cir. 1992); Wishnefsky v. Addy, 969 F.supp. 953, 956 (E.D.Pa. 1997); but see Perlberger v. Perlberger, No. CIV.A.97-4105, 1998 WL 472657, at *3 (E.D.Pa. Aug. 13, 1998) ("Rooker-Feldman does not apply to interlocutory orders that, by definition, are provisional and not final.")

In Port Authority, a New York state court entered a preliminary injunction prohibiting non-profit organizations of New York Port Authority police officers from soliciting contributions from Port Authority tenants; the prohibition was based on a Port Authority regulation. The non-profit organization then filed a federal complaint seeking a temporary restraining order and an injunction that would prohibit the Port Authority from enforcing its regulation prohibiting employee solicitations. The Court of Appeals held that the district court properly dismissed the federal complaint under the abstention doctrine developed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court recognized that an injunction against the Port Authority would, if granted, effectively enjoin the enforcement of the New York state court's order and unnecessarily interfere with New York's substantial interest in enforcing the state court order; accordingly, the court declined to exercise jurisdiction. The federal plaintiffs attempted to distinguish the case from precedent, on the grounds that previous cases involved a challenge to the enforcement of a final judgment of a state court, whereas their case involved a preliminary injunction, which was interlocutory in nature. The Court of Appeals concluded that the fact that the order was interlocutory, rather than final, in nature did not preclude abstention. Abstaining in the case of an interlocutory order, just as in the case of a final order, is often necessary to preserve the principles of comity and federalism that underlie abstention. Although the court decided the case under Younger, the court declared that it would have reached the same conclusion under Rooker-Feldman. The court explained that abstention is justified under both doctrines because the state has an important interest in enforcing orders issued by its state courts-regardless of whether they are final or interlocutory in nature.

More important to the court's analysis than whether the order was final or interlocutory was the fact that the state court order resolved the federal question that was presented to the federal court by the same parties and whether the federal question was one that could be adequately addressed by the state court. Speaking to the Rooker-Feldman doctrine, the court stated:

[a]s discussed . . . in the context of Younger abstention, the preliminary injunction issued by the New York trial court against the [federal plaintiffs] resolved, at least for the moment, the dispute between the parties which forms the basis of the federal complaint at issue in this case.

Port Auth. Police Benevolent Assoc., Inc., 973 F.2d at 178.

Indeed, the parties presented the same constitutional argument against the enforcement of the Port Authority regulation in state court as they did in federal court, and "[t]his constitutional argument [sought to be presented in federal court] . . . was resolved in by the New York state court in its order granting a preliminary injunction to the Port Authority" and the very issue was on appeal in the state system. Id., 973 F.2d at 173.

We find that abstention under Rooker-Feldman is not appropriate in the case before us. First, we note that Port Authority explicitly states that "we . . . do not hold that federal courts must abstain in every case involving a constitutional challenge to a state court interlocutory order." Id., 973 F.2d at 174-75. Most important to our analysis is that, unlike in Port Authority, here there is no indication here that the state court decided the constitutional issues presented to this Court. Indeed, in state court plaintiffs sought an order that would permit the tenants to re-occupy the premises. Plaintiffs are not seeking from this federal court an order that would require that the condemnation be lifted and that the tenants be allowed to re-occupy the building. Rather, they allege that the defendants' conduct in condemning the building, and in issuing other citations that are not the basis of the state court action, constitute unlawful retaliation. Although defendants argue that plaintiffs mentioned retaliation in their third Motion for Preliminary Injunction and in their Response to Defendants' Motion for Entry upon Land, there is no evidence that the state court decided the constitutional retaliation issue.

There can be many reasons for denying an injunction. We have no written opinion before us and we can infer from the fact that the state court did not halt the condemnation at most the conclusion that the state court believed that grounds for halting the condemnation were not established; we cannot infer from this that the court took the additional step and decided that defendants had not engaged in retaliation. See Ernst v. Child and Youth Servs. of Chester County, 108 F.3d 486, 492 (3d Cir. 1997) (finding that district court's deciding the substantive due process claims did not involve federal court review of state court decision in dependency proceeding because although plaintiff mentioned her concerns of bias during state court proceeding, plaintiff did not articulate her concerns in constitutional due process terms and substantive due process claims were never decided by state court).

Stated differently, the state court judgment is not "inextricably intertwined" with the federal claims. Declining to abstain under Rooker-Feldman and exercising our jurisdiction does not require that we determine that the state court judgment was erroneously entered or that we issue a decision that would render the state court's order ineffectual. Simply put, it is fully possible that the state court's decision is correct yet the defendants' actions are nonetheless retaliatory. Indeed, retaliation may be shown without a finding that the condemnation was baseless and, thus, without what would in essence be a reversal of the state court's order; for example, plaintiffs may present evidence that other property owners were not subject to the same treatment as evidence of retaliation or may point to defendants' course of conduct as a whole, including issuing numerous citations, to show retaliation. See Ernst, 108 F.3d at 491-92 ("The Rooker-Feldman doctrine did not preclude the district court from deciding those claims because a ruling that the defendants violated [plaintiff's] right to substantive due process by making recommendations to the state court out of malice or personal bias would not have required the court to find that the state court judgments made on the basis of those recommendations were erroneous.")

Younger Abstention

Defendants have incorporated in their brief on Rooker-Feldman the Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention argument that they first raised in their Motion to Dismiss. We now address the applicability of Younger.

a. Younger Principles

In Younger, a state criminal defendant filed a federal action that alleged that the statute underlying his state prosecution violated the Constitution; he requested that its enforcement be enjoined. He thereby sought to reframe the issues in federal court and to convert what would ordinarily be a defense to a criminal prosecution into an affirmative claim for relief. See Special Souvenirs, Inc. v. Town of Wayne, 56 F. Supp.2d 1062, 1071 (E.D.Wis. 1999). The Court concluded that absent extraordinary circumstances, the federal court should abstain from hearing the case based on principles of equity, comity and federalism. Younger, 401 U.S. at 43-50. Younger's holding has since been expanded to apply (1) to cases involving civil enforcement proceedings in state court rather than criminal prosecutions, see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); (2) to cases involving the integrity of administration of the state's judicial system, see Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); (3) in cases involving two private parties, see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) and (4) in light of certain pending administrative proceedings, see Ohio Civil Rights Comm'n, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) and Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982).

Federal courts determining that abstention is appropriate under Younger must find that: (1) the state action constitutes an ongoing judicial proceeding; (2) the proceedings implicate important state interests and (3) there is an adequate opportunity to raise the constitutional challenges in the state proceedings. Middlesex County, 457 U.S. at 432.

"As a threshold condition to the above requirements, Younger applies only when the relief the plaintiff seeks in federal court would interfere with the ongoing state judicial proceeding." Columbia Basement Apartment Assoc. v. City of Pasco, 268 F.3d 791 (9th Cir. 2001); see also Marks v. Stinson, 19 F.3d 873, 882 (3d Cir. 1994) ("A federal court will only consider Younger abstention when the requested equitable relief would constitute federal interference in state judicial or quasi-judicial proceedings.") (citations omitted); Am. Fed'n of State, County and Municipal Employees v. Tristano, 898 F.2d 1302 (7th Cir. 1990) (noting that common thread in cases implicating Younger abstention is the impact on and interference with the state proceedings); Lapat v. Serber, Civ.A.No. 95 C 4188, 1995 WL 491493, at *2 (E.D.Pa. Aug. 1, 1995) (finding Younger abstention inappropriate in part because defendants had failed to demonstrate how the federal proceedings would interfere with the state court proceedings). This is because "[w]here federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated." Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir. 1992). "The federal court interferes with state court proceedings if plaintiffs seek relief in federal courts which will impair the ability of the state courts to adjudicate anything that is currently before them or where federal relief would render the state court's orders or judgments nugatory." Rappaport v. Norlar, Inc., Civ.A.No.93-4756, 1994 WL 167959, at *9 (E.D.Pa. April 29, 1994) (internal quotations and citations omitted). If these conditions are met, abstention is proper unless the plaintiff meets the heavy burden of showing "bad faith, harassment, or some extraordinary circumstance that would make abstention appropriate." Id. at 435; see also Trackwell v. Kansas, 2001 WL 709366, at *2 (D.Kan. May 10, 2001).

b. Defendants' Position as to Applicability of Younger

Defendants argue that this Court should abstain under Younger. Defendants submit that there is a judicial proceeding ongoing in the Court of Common Pleas of Montgomery County wherein plaintiffs can raise their constitutional challenges. They contend that zoning and land use decisions implicate important state interests that are outside the general supervising power of federal courts.

c. Plaintiffs' Position as to Applicability of Younger

Plaintiffs respond that

the instant federal complaint in no way offends the federal/state comity which underlies Younger abstention because it (a) challenges the defendants' willful and malicious misconduct without implicating the legality of the Borough's building code or ordinances under which they acted, (b) does not seek to enjoin or interfere with the case in common pleas court, (c) challenges the entire course of defendants' illegal conduct in relation to properties other than 837 Swede Street which is the subject of the proceeding in common pleas court, and (d) unlike the common pleas complaint, sues Defendants Sweeney and O'Donnell in their individual as well as their official capacities.

(Pls.' Answer to Defs.' Mot. to Dismiss at 8.)

d. Applicability of Younger

Applying the principles of Younger to the present case, we first note that this is not the typical Younger case. Usually, Younger abstention applies in cases where the state court defendant is the federal court plaintiff. See Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 30 (6th Cir. 1984) ("In the typical Younger case, the federal plaintiff is a defendant in ongoing or threatened state court proceedings seeking to enjoin continuation of those proceedings.") Here, the same plaintiff is bringing both the state court and federal court cases.*fn7 Nevertheless, we also recognize that in this context, formal denominations of plaintiff and defendant should not be applied mechanically. See, e.g., Fresh Int'l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1360 n. 8 (9th Cir. 1986) (abstaining under Younger despite the fact that Younger abstention ordinarily does not apply where, as in the case before the court, a federal plaintiff also is the plaintiff in state court). Rather, what is significant is the purpose behind the proceedings and the impact that the federal court's hearing the proceedings will have on state-federal relations. If the principles of comity and federalism are implicated, abstention may be appropriate even in the atypical Younger context (where the same plaintiff brings both the state court and federal court actions). Indeed, in most cases stating that the procedural posture counsels against abstaining under Younger, the determinative factor is not necessarily the procedural posture in itself, but rather the relief sought and its implications for federalism.*fn8

One such case is Kentucky West Virginia Gas Company v. Pennsylvania Public Utility Commission, 791 F.2d 1111 (3d Cir. 1986). There, the Public Utilities Commission issued orders governing retail natural gas rates against two gas companies. One of the companies filed a Petition for Review in the Commonwealth Court of Pennsylvania. Thereafter, both companies filed suit against the Commission in federal district court, seeking declaratory and injunctive relief. The district court dismissed the action, finding abstention appropriate. The Court of Appeals for the Third Circuit held that abstention under Younger was not appropriate. The court stated that the procedural posture of the case, with the identity of the state and federal court plaintiffs being the same, dictated that abstention was not appropriate, and held that the district court abused its discretion in abstaining. Kentucky West Virginia, 791 F.2d at 1117. More importantly to the decision, however, was the fact that the parties "[were] not seeking to enjoin any state judicial proceeding; instead, they simply desire[d] to litigate what [was] admittedly a federal question in court." Id. The court concluded that "under the circumstances, . . . the balance of state and federal interests tip[ped] decidedly away from abstention under Younger." Id.

Similarly, in Crawley v. Hamilton County Commissioners, 744 F.2d 28 (6th Cir. 1984), where prison inmates filed suit first in state and then in federal court challenging the conditions of their confinement, the court noted that the case before the court, where the federal plaintiffs were also the plaintiffs in state court, had a very different procedural posture than Younger and its progeny. See Crawley, 744 F.2d at 30. The court noted that "[i]n addition, the plaintiffs [were] not attempting to use the federal courts to shield them from state court enforcement actions" and accordingly held that "there [was] no basis for Younger abstention." Id. We proceed with these principles in mind.

We find that the threshold Younger requirement is not met here. There has been no showing that these federal proceedings will interfere with the proceedings ongoing in the Montgomery County Court of Common Pleas. Plaintiffs do not directly challenge the constitutionality of any ordinance, and do not seek to enjoin the state court proceedings. Rather, plaintiffs allege that defendants' actions in condemning several of plaintiffs' properties and in issuing multiple citations against plaintiffs constitute unlawful retaliation and a violation of their substantive due process rights, and seek money damages for these alleged constitutional violations. The relief that plaintiffs seek, if granted, would not impair the state court's ability to adjudicate the matters before it; nor would such relief render the state court's orders or judgments nugatory. Indeed, contrary to defendants' assertions*fn9, it would be possible for the state court to find the condemnation proper and yet there to be a federal finding of retaliation. Nor would, as defendants suggest*fn10, a finding in plaintiffs' favor disrupt the function of the local government. Plaintiffs are challenging the defendants' entire course of conduct and the application of various ordinances in this instance. A finding in this case that defendants' issuance of condemnation notices and citations constitutes improper retaliatory action would not disrupt unconnected, future zoning decisions.

Undoubtedly, case before this Court involves some of the same factual circumstances that underlying the state court action.*fn11 Nevertheless, "[w]here federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated" and Younger abstention is not warranted. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir. 1992). Having found that the threshold condition for Younger abstention is not met, we need not address the remaining three requirements for Younger abstention.*fn12 As in Kentucky West Virginia and Crawley, not only does the procedural posture of this case ...

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