United States District Court, W.D. Pennsylvania
September 9, 2005.
WILMINGTON TRUST COMPANY, Plaintiff,
COUNTY OF ALLEGHENY, ALLEGHENY COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, ALLEGHENY COUNTY AIRPORT AUTHORITY, USAIRWAYS, INC., KENT G. GEORGE, EARL HORD, ROBERT J. MACEY, GLENN MAHONE, DAVID J. MAYERNIK, JON PIPPY, RICHARD L. SHAW, MARY PAT SOLTIS, RICH STANIZZO, JOHN DOE 1, JOHN DOE 2, JOHN DOE 3, JOHN DOE 4, and JOHN DOE 5 Defendants.
The opinion of the court was delivered by: DAVID CERCONE, District Judge
Plaintiff, Wilmington Trust Company ("Wilmington Trust"),
brought this action under 42 U.S.C. § 1983 and under state law,
seeking to recover principal and interest on bonds issued to
refinance certain property and facilities at the Pittsburgh
International Airport (the "Airport"). Defendant, Allegheny
County Industrial Development Authority (the "ACIDA") and
Defendants, County of Allegheny (the "County"), Allegheny County
Airport Authority (the "Airport Authority"), and Kent G. George,
Earl Hord, Robert J. Macey, Glenn Mahone, David J. Mayernik, Jon
Pippy, Richard L. Shaw, Mary Pat Soltis, and Rich Stanizzo (the
"ACAA Representatives") (collectively with the Airport Authority,
the "ACAA Parties"), have filed motions to dismiss Wilmington
Trust's complaint under Rule 12(b)6 of the Federal Rules of Civil
Procedure. II. STATEMENT OF THE CASE
On July 1, 1980, the County entered into a Ground Lease
Agreement (the "Ground Lease") with the National Transportation
Center (the "NTC") under which the County as operator of the
Airport leased certain real property at the Airport as well as
all its right title and interest in certain facilities to be
constructed on the leased property. Complaint ¶ 21. The original
term of the Ground Lease was to be twenty (20) years from the
Completion Date.*fn1 Complaint ¶ 23. Under the Ground Lease,
the County consented to a sublease by the NTC of the leased
property, including the facilities to be constructed, to US
Airways, Inc. ("US Air"). Complaint ¶ 22. The County's consent to
sublease, however, did not "vary or modify the terms, covenants
and conditions to be observed and performed by NTC and [US Air]
pursuant to [the] Lease." See Ground Lease ¶ 1(b). Further, the
County had the right to terminate the Ground Lease upon an
uncured "Event of Default," including the filing of a voluntary
petition in bankruptcy by US Air. See Ground Lease ¶ 21(a)(i).
The NTC and US Air then entered into a separate Sublease
Agreement. Complaint ¶ 30. Construction of the facilities to be
leased by US Air in accordance with the 1980 sublease was
financed in part by revenue bonds (the "1980 bonds") issued by
the ACIDA. Complaint ¶ 29. In July of 1991, the County and the
NTC amended the Ground Lease, granting the NTC the right to
extend the term to March 1, 2021. Complaint ¶ 25. On June 1,
1991, the NTC, with the County's consent, assigned all its right,
title and interest in the Ground Lease to the ACIDA. Complaint ¶
25. At the same time, the ACIDA entered into a Sublease and
Security Agreement (the "Sublease") with US Air under which US
Air was to sublease the property and facilities. Complaint ¶¶ 33
and 34. The Sublease incorporated all the terms, conditions and
covenants of the Ground Lease. Complaint ¶ 35.
In June of 1991, the ACIDA refinanced the 1980 bonds by issuing
Airport Special Facilities Revenue Refunding Bonds, Series 1991A (the "1991A
Bonds). Complaint ¶ 31. The 1991A Bonds were issued pursuant to a
Trust Indenture dated June 1, 1991, entered between ACIDA and
Wilmington Trust as Trustee. Complaint ¶ 32. The Official
Statement, published in connection with the issuance of the 1991A
The 1991A Bonds will be secured by an assignment of
all right, title and interest of the [ACIDA] in and
to the 1980 Ground Lease and the 1991A Sublease . . .
Payments of rent by [US Air] under the 1991A Sublease
will be sufficient, together with the other funds
available for such purpose, to provide for payment of
the principal of and premium, if any, and interest on
the 1991A Bonds at or prior to their maturity. The
obligation of [US Air] to make payment of such rent
pursuant to the 1991A Sublease is absolute and
Complaint ¶ 37.
In recognition that bonds were to be issued to finance
construction of certain facilities at the Airport, the Ground
Lease authorized the ACIDA to assign its interest in the Ground
Lease "to the Trustee as security under the Trust Indenture for
the payment of the principal of, and premium if any, and interest
on the Bonds . . ." See Ground Lease ¶ 30(c). In accordance
with the Trust Indenture, ACIDA granted, conveyed and assigned to
Wilmington Trust all its right, title and interest in the Ground
Lease and the Sublease. Complaint ¶ 45. The County was not a
party to the Trust Identure. On or about September 23, 1999, the
County transferred the operation and management of the Airport to
the Airport Authority. Complaint ¶ 48.
On or about August 11, 2002, US Air filed a voluntary petition
in bankruptcy in the United States Bankruptcy Court for the
Eastern District of Virginia. Under Paragraph 21(a)(i) of the
Ground Lease, US Air's filing constituted an Event of Default.
See Ground Lease ¶ 21(a). By letter dated December 17, 2003,
the Airport Authority advised the ACIDA that, as a result of US
Air's bankruptcy and rejection of the Ground Lease, the Airport
Authority was terminating the Ground Lease. Complaint ¶ 49; The
County's Motion to Dismiss, Ex. H. By letter dated January 2,
2004, the ACIDA waived the thirty (30) day notice requirement
under the Ground Lease and agreed that the Amended Ground Lease
would be terminated effective 12:02 a.m. on January 5, 2004. Complaint ¶ 50; The County's
Motion to Dismiss, Ex. I.
On January 6, 2004, the Airport Authority notified Wilmington
Trust that because the Ground Lease had never been extended, and
because US Air had rejected the Ground Lease in the bankruptcy
proceedings, the Ground Lease was terminated. Complaint ¶ 51. On
January 5, 2004, the Airport Authority and US Air entered into a
Hangar Facility Lease Agreement (the "2004 Lease") under which
the premises which were subject to the Amended Ground Lease and
the 1991A Sublease and Security Agreement were leased to US Air
for a period of three (3) years. Complaint ¶ 52. No reference to
the 1991A Bonds was made in the 2004 Lease, nor was any provision
made for the payment of rents and revenues to the Trustee,
Wilmington Trust, for payment in turn to the bondholders. Id.
III. STANDARD FOR MOTION TO DISMISS
When considering a Rule 12(b)(6) motion, a court is required to
accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff. Rocks v. City of
Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); see also Ford
v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). A
motion to dismiss under Rule 12(b)(6) may be granted only if the
court finds the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief. See Conley v.
Gibson, 355 U.S. 41, 45 (1957); Schering-Plough Corp.,
145 F.3d at 604. A court need not credit a complaint's "bald
assertions" or "legal conclusions" when deciding a motion to
dismiss. In re Burlington Coat Factory Securities Litigation,
114 F.3d 1410, 1429-30 (3d Cir. 1997) (quoting Glassman v.
Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)). See
also CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1357 (2d ed. 1997) (noting that courts, when
examining 12(b)(6) motions, have rejected "legal conclusions,"
"unsupported conclusions," "unwarranted inferences," "unwarranted
deductions," "footless conclusions of law," or "sweeping legal
conclusions cast in the form of factual allegations").
Generally, "to the extent that [a] court considers evidence
beyond the complaint in deciding a 12(b)(6) motion, it is
converted to a motion for summary judgment." Anjelino v. New
York Times Co., 200 F.3d 73, 88 (3d Cir. 1999). However, in
resolving a 12(b)(6) motion to dismiss, a court may look beyond
the complaint to matters of public record, including court files
and records, and documents referenced in the complaint or
essential to a plaintiff's claim which are attached to a
defendant's motion. Pension Benefit Guar. Corp. v. White Consol.
Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). A court may consider
documents which are attached to or submitted with the complaint,
as well as legal arguments presented in memorandums or briefs and
arguments of counsel. Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir.
2002) (citation omitted). Further, documents whose contents are
alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the pleading,
may be considered. Id.
In its motion, the ACIDA argues that Wilmington Trust's Section
1983 claims must be dismissed because: (a) there is no causal
connection between the ACIDA's single action and the alleged
constitutional deprivations; (b) Wilmington Trust has not alleged
a constitutionally protected property right; (c) the alleged
action by the ACIDA fails to shock the conscience; and (d) the
complaint fails to state a claim for conspiracy to violate
Section 1983. Similarly, the County and the ACAA Parties contend
that Wilmington has failed to allege a claim under Section 1983
because the complaint fails to allege (1) the deprivation of a
constitutionally protected right; (2) the requisite municipal
liability; (3) actions that shock the conscience; (4) the
specific personal involvement of each ACAA Representative; and
(5) because Wilmington Trust's section 1983 claim fails, its
claim of conspiracy to violate Section 1983 must also fail.
Further, the County and the ACAA Parties argue that, under the
express terms of the controlling agreements and related documents, Wilmington Trust,
as Trustee for the bondholders, has no rights in any of the
premises or facilities located at the Airport. Therefore, any
claim in derivation of those rights must fail.
A. Wilmington Trust's Section 1983 Claim
Section 1983*fn2 imposes civil liability upon any person
who, acting under the color of state law, deprives another
individual of any rights, privileges, or immunities secured by
the Constitution or laws of the United States. Gruenke v. Seip,
225 F.3d 290, 298 (3d Cir. 2000). This section does not create
any new substantive rights but instead provides a remedy for the
violation of a federal constitutional or statutory right. Id.
(citing Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). To
establish valid claims under § 1983, Wilmington Trust must
demonstrate that the defendants, while acting under color of
state law, deprived it of a right secured by the Constitution or
the laws of the United States. Mark v. Borough of Hatboro,
51 F.3d 1137, 1141 (3d Cir. 1995) (citing Moore v. Tartler,
986 F.2d 682, 586 (3d Cir. 1993)). Wilmington Trust contends that it
was denied its rights under the Due Process Clause of the
Substantive Due Process
The Due Process Clause protects both substantive and procedural
due process rights. There are two aspects to the substantive
prong: (1) a challenge to the validity of legislative acts; and
(2) non-legislative actions or executive acts. Nicholas v.
Pennsylvania State University, 227 F.3d 133, 138-139 (3rd Cir.
2000). The non-legislative or executive acts is applicable here because it concerns actions taken under a contract. To prevail on
substantive due process claim under Section 1983, a plaintiff
must establish as a threshold matter that he has a protected
property interest to which the Fourteenth Amendment's due process
protection applies. See Woodwind Estates Ltd. v. W.J.
Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000) (overruled on other
grounds by United Artists Theatre Circuit, Inc. v. Township of
Warrington, 316 F.3d 392, 399-400 (3d Cir. 2003)).
While it is well settled that certain interests in real
property are entitled to substantive due process protection, not
all property interests are so protected. Nicholas v.
Pennsylvania State Univ., 227 F.3d at 140 (quoting Reich v.
Beharry, 883 F.2d 239, 243 (3d Cir. 1989)). In explaining the
type of property interest protected under substantive due
process, the Third Circuit stated:
On past occasion, we have lamented that "the case law
of this circuit and the Supreme Court provides very
little guidance as to what constitutes this `certain
quality' of property interest worthy of protection
under the substantive due process clause."
Nevertheless, we believe that a careful review of the
case law does reveal one guiding principle: whether a
certain property interest embodies this "particular
quality" is not determined by reference to state law,
but rather depends on whether that interest is
"fundamental" under the United States Constitution. . . .
[T]his Circuit has adopted an approach to
substantive due process that focuses on the nature of
the property interest at stake. By way of
illustration, we have so far limited non-legislative
substantive due process review to cases involving
real property ownership . . . we have been reluctant
to extend substantive due process protection to
other, less fundamental property interests.
Nicholas v. Pennsylvania State Univ., 227 F.3d at 140-141
(emphasis added) (internal citations omitted). Moreover, both the
Supreme Court and the Third Circuit have admonished courts to
"exercise `utmost care whenever we are asked to break new
ground'" in the area of substantive due process. Nicholas v.
Pennsylvania State Univ., 227 F.3d at 141 (quoting Collins v.
City of Harker Heights, 503 U.S. 115 (1992)). The Third Circuit
has shown a reluctance to extend substantive due process
protection to "other, less fundamental property interests" than
real property ownership. Id. Here, Wilmington Trust argues that it was conveyed an interest
in real property and the structures thereon in an assignment of
right from ACIDA that is protected by the Fourteenth Amendment.
ACIDA was the subleasor under the Ground Lease originally entered
between the County and the NTC. In accordance with the Trust
Indenture, ACIDA then granted, conveyed and assigned to
Wilmington Trust all its right, title and interest in the Ground
Lease and the Sublease. While it is true that as the subleasor
under the Ground Lease, Wilmington Trust certainly had an
interest in property for a term of years, such interest was
terminable pursuant to the Ground Lease under certain conditions,
one of which was the bankruptcy of US Air. The "bundle of rights"
assigned to Wilmington Trust under the Ground Lease does not rise
to the level of "fundamental property interests" entitled to
substantive due process protection. To prevail under Section
1983, a plaintiff seeking to recover against a governmental
agency must prove an actual deprivation of a constitutional
right. A plaintiff may not recover under Section 1983 for
violation of due process because of a mere breach of state law.
See Collins v. City of Harker Heights, 503 U.S. 115, 128
(1992); DeShaney v. Winnebago Soc. Servs., 489 U.S. 189
Two general types of contract rights are recognized as property
protected under the Fourteenth Amendment: (1) where "the contract
confers a protected status, such as those characterized by a
quality of either extreme dependence in the case of welfare
benefits, or permanence in the case of tenure, or sometimes both,
as frequently occurs in the case of social security benefits"; or
(2) where "`the contract itself includes a provision that the
state entity can terminate the contract only for cause.'"
Linan-Faye Construction Co. v. Housing Auth. of the City of
Camden, 49 F.3d 915, 932 (3d Cir. 1995) (quoting Unger v.
National Residents Matching Program, 928 F.2d 1392, 1399 (3d
Cir. 1991)). Neither the Ground Lease, the Amended Ground Lease
nor the Sublease confer any protected status similar to that of a
welfare recipient or tenured faculty member at a state
institution. Furthermore, there are no provisions in the
documents that provide for termination of the leases for cause
only. In denying substantive and procedural due process protection based
upon contract rights in Reich v. Beharry, 883 F.2d 239 (3d Cir.
1989), the Third Circuit stated:
Many . . . courts have observed that if every breach
of contract by someone acting under color of state
law constituted a deprivation of property for
procedural due process purposes, the federal courts
would be called upon to pass judgment on the
procedural fairness of the processing of a myriad of
contract claims against public entities. We agree
that such a wholesale federalization of state public
contract law seems far afield from the great purposes
of the due process clause.
Reich v. Beharry, 883 F.2d at 242 (citations omitted).
In Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir.
1988), the Third Circuit held that a lessor who had been denied
an exemption from a zoning ordinance stated a substantive due
process claim by alleging that the exemption application was
arbitrarily and irrationally denied.*fn3 See Neiderhiser,
840 F.2d at 218 (citing Bello v. Walker, 840 F.2d 1124 (3d Cir.
1988)). Though the ruling implied that a lessor possesses a
property interest worthy of substantive due process protection,
the court did not so hold. The plaintiffs in Neiderhiser,
alleged that the zoning exemption was denied for no reason other
than that they possessed x-rated movies for rent or resale. The
Third Circuit found that this allegation stated a cause of action
based on a violation of due process because the denial was based
on nothing other than the subject matter of the films
distributed, and could be shown to be arbitrary or irrational.
Neiderhiser v. Berwick, 840 F.2d at 218.
Most substantive due process cases affecting real property,
like Neiderhiser, involve zoning decisions, building permits,
or other governmental permission required for some intended use
of land owned by the plaintiffs; matters which were recognized in
DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 (3d Cir.
1993) as implicating a "fundamental" property interest in the
ownership of land. Id. at 600. See also Independent Enters. v.
Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1180 n. 12 (3d
Cir. 1997). In the instant case, we have neither "ownership" of the property nor any type of governmental
permission required for an intended use of the land. Wilmington
Trust's interests are rights granted under contract, not rights
found to be fundamental under the Constitution. This Court,
therefore, is loath to extend substantive due process protection
to property rights assumed under a contract unless such rights
have been recognized as fundamental by the Third Circuit or the
Supreme Court. Wilmington Trust's substantive due process claim
fails for lack of a property interest protected by the Due
Even if this Court found that Wilmington Trust did in fact have
a property right protected under the Due Process Clause, its
claim fails nonetheless. To prove a violation of substantive due
process in cases involving executive action, a plaintiff must
show that the state acted in a manner that "shocks the
conscience." County of Sacramento v. Lewis, 523 U.S. 833,
846-847 (1998); Schieber v. City of Philadelphia, 320 F.3d 409,
417 (3d Cir. 2003); UA Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 400-401 (3d Cir. 2003). Whether
executive action is conscience shocking and thus "arbitrary in
the constitutional sense" depends on the context in which the
action takes place. Schieber v. City of Philadelphia,
320 F.3d at 417. The Third Circuit has stated that "[w]hat `shocks the
conscience' is `only the most egregious official conduct.'"
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004)
(quoting County of Sacramento v. Lewis, 523 U.S. at 846).
Therefore, the required governmental actions must be so offensive
and egregious that they offend the sensibilities of the average
person. UA Theatre Circuit, Inc. v. Twp. of Warrington.,
316 F.3d at 400. Whether an incident "shocks the conscience" is a
matter of law for the courts to decide. Benn v. Universal Health
Sys., 371 F.3d 165, 174 (3d Cir. 2004) citing Rochin v.
California, 342 U.S. 165, 172 (1952).
There is no dispute that on or about August 11, 2002, US Air
filed a voluntary petition in bankruptcy in the United States
Bankruptcy Court for the Eastern District of Virginia. It is also
undisputed that US Air's filing constituted an Event of Default
under Paragraph 21(a)(i) of the Ground Lease. Moreover, Wilmington Trust concedes that, in
the event of a default, the County had the right "subject the
other provisions of this Lease, including Article 30 thereof," to
terminate the Ground Lease by giving ACIDA thirty days' prior
written notice. Wilmington Trust argues, however, that under
Article 30 of the Ground Lease it was entitled to a grace period
of at least sixty (60) days before the termination would become
effective. Specifically, Article 30 states:
So long as the Trust Indenture shall be a lien upon
NTC's interest under this Lease and Sublease, [the]
County will not exercise any right, power or remedy
with respect to any Event of Default under Article 21
hereof and no termination of this Lease in connection
therewith shall be effective, until the expiration of
any grace period provided with respect thereto, plus
an additional thirty (30) days after the expiration
thereof or until the receipt by the Trustee of a
written notice of such Event of Default or a copy of
its notice to NTC of such Event of Default together
with a period of time which is twice the grace period
granted to NTC by the Lease or the period otherwise
granted to cure said Event of Default, whichever is
later. [The] County will not during such period
exercise any right, power, or remedy with respect to
any Event of Default hereunder if (i) the Trustee,
within any grace period . . . shall give to [the]
County written notice that either (a) such Event of
Default is not an Event of Default curable by the
Trustee and is, therefore, subject to the terms of
subsection (g) hereof, or (b) the Trustee intends to
undertake the correction of such Event of Default or
to cause the same to be corrected, and (ii) the
Trustee shall thereafter in the case of any Event of
Default referred to in clause (b) of this subsection,
prosecute diligently the correction in accordance
with the terms of this Lease of such Event of
Default, whether by exercise on behalf of NTC of its
obligation hereunder, entry on the demised Premises,
See Ground Lease ¶ 30(e).
Despite the Event of Default and the obvious right to
terminate, there was neither a termination nor a notification of
termination until US Air rejected the sublease in the course of
the bankruptcy. Pursuant to US Air's Amended Plan of
Reorganization, the sublease between ACIDA and US Air was one of
the unexpired leases rejected*fn4 by US Air in March of
2003. See The County's Motion to Dismiss, Exhibit F. The effective date of
such rejection, according to the County, was January 5, 2004.
See The County's Motion to Dismiss, Exhibit H. The Airport
Authority then advised the ACIDA by letter dated December 17,
2003, that, as a result of US Air's bankruptcy and rejection of
the Ground Lease, the Airport Authority was terminating the
Ground Lease. Complaint ¶ 49; The County's Motion to Dismiss, Ex.
H. By letter dated January 2, 2004, the ACIDA waived the thirty
(30) day notice requirement under the Ground Lease and agreed
that the Amended Ground Lease would be terminated effective 12:02
a.m. on January 5, 2004. Complaint ¶ 50; The County's Motion to
Dismiss, Ex. I.
There was nothing arbitrary, capricious or egregious in the
termination of the Ground Lease. All of the events leading to
final termination had bases either under the terms of the Ground
Lease or in bankruptcy law. Moreover, the failure by the ACIDA,
the County, or the ACAA Parties to provide Wilmington Trust with
the proper grace period to cure the default as required under the
lease is neither conscience shocking nor arbitrary in the
constitutional sense. Based on the above, the Court finds that
Wilmington Trust can prove no set of facts in support of its
substantive due process claim which would prove that the County's
actions in terminating the Ground Lease shocked the sensibilities
of the average person. Accordingly, Wilmington Trust's
substantive due process claim will be dismissed.
Procedural Due Process
To recover for an alleged procedural due process violation,
Wilmington Trust must demonstrate that: 1) it possessed a
property interest subject to protection by the Due Process Clause
of the Fourteenth Amendment; 2) the defendants infringed such
property interest; and 3) the state procedure for challenging the
deprivation does not satisfy the requirements of procedural due
process. Midnight Sessions, Ltd. v. City of Philadelphia,
945 F.2d 667, 679-80 (3d Cir. 1991), cert. denied, 503 U.S. 984
(1992). Wilmington Trust's procedural due process claim fails in
two (2) aspects: it possesses no property interest subject to
Fourteenth Amendment protection; and it has no right to a
deprivation hearing prior to termination of the sublease.
Though a property right subject to procedural due process
protection may be different from a property right protected by
substantive due process, the results are the same in this
instance. A property interest subject to protection by the due
process clause results from a "legitimate claim of entitlement"
created by an independent source such as state law. Board of
Regents v. Roth, 408 U.S. 564, 577 (1972). Specifically, the
To have a property interest in a benefit, a person
clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a
legitimate claim of entitlement to it.
Id. at 577. In Adams Parking Garage, Inc. v. City of
Scranton, 33 Fed. Appx. 28 (3d Cir. 2002), a case similar to the
instant case, the Third Circuit held that the plaintiff's
substantive and procedural due process claims failed for lack of
a property interest protected by the Due Process Clause. The
court found that pursuant to the lease, the City of Scranton was
entitled top terminate the lease upon condemnation of the
property, even where the condemnor was the Scranton Redevelopment
Authority. Adams Parking Garage, Inc. v. City of Scranton,
33 Fed. Appx. at 32. With no legitimate claim of entitlement to a
longer lease under state law, the court found that the plaintiff
was deprived of no cognizable property interest. Id.
Similarly here, the language of the Ground Lease is clear and
unambiguous. The County was permitted to terminate the lease in
the Event of Default. Wilmington Trust, therefore, has no
legitimate claim of entitlement a longer lease under state law.
Further, Wilmington Trust has no right to a deprivation hearing
prior to termination of the sublease. The Third Circuit has found
that any assertion that a due process hearing is required "before
any public agency can ever terminate or breach a contract" is
"[u]nrealistic and contrary to common sense." Unger v. National
Residents Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991)
(quoting Boucvalt v. Board of Comm'rs, 798 F.2d 722, 729-30
(5th Cir. 1986)). Accordingly, Wilmington Trust's procedural due
process claim must be dismissed. B. Wilmington Trust's Claim of Conspiracy to Violate Section
In its complaint, Wilmington Trust alleges a conspiracy on the
part of all defendants except the County to violate
42 U.S.C. § 1983. Because the Court finds that Wilmington Trust has failed to
state a claim under Section 1983, it cannot maintain an action
for conspiracy to violate Section 1983. Though "the existence of
a conspiracy otherwise may supply the element of state action and
expand the scope of liability through the concept of imputation,
§ 1983 does not provide a cause of action per se for conspiracy
to deprive one of a constitutional right. Without an actual
deprivation, there can be no liability under § 1983." See Holt
Cargo Sys. v. Delaware River Port Auth., 20 F. Supp. 2d 803, 843
(E.D. Pa. 1998) quoting Defeo v. Sill, 810 F. Supp. 648, 658
(E.D. Pa. 1993); also see Mody v. City of Hoboken,
959 F.2d 461, 466 (3d Cir. 1992). As the Court has found that Wilmington
Trust suffered no deprivation of a constitutionally protected
property interest, its conspiracy claim must fail.
C. Wilmington Trust's Pendent State Claims
In its complaint, Wilmington Trust alleges the following state
law claims: (1) an action on the bonds against ACIDA (Count III);
(2) an action in ejectment for possession against the County, the
Airport Authority, and US Air (Count IV); and, (3) an action in
trespass and for fair market rental value against the Airport
Authority and US Air. After a review of the complaint and the
arguments of the parties, the Court agrees with Wilmington
Trust's contention that the issues presented in the claims cannot
be decided at this point in the litigation. However, the Court is
not convinced that it has subject matter jurisdiction over the
pendent state claims.
Wilmington contends that the Court has jurisdiction over the
pendent state claims because such claims are between citizens of
different states and involve an amount in controversy in excess
of $75,000.00 as required under 28 U.S.C. § 1332. Complaint ¶ 3.
In its complaint, Wilmington alleges that it is a Delaware
banking corporation, and that US Air is also a Delaware
corporation. Complaint ¶¶ 5 and 9. In order "to satisfy the jurisdictional requirements of
28 U.S.C. § 1332(a)(1) . . . diversity must be complete; that is, no
plaintiff can be a citizen of the same state as any of the
defendants." Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696
(3d Cir. 1995) (citing Carden v. Arkoma Assocs., 494 U.S. 185,
187 (1992); Quaker State Dyeing & Finishing Co. v. ITT
Terryphone Corp., 461 F.2d 1140, 1142 (3d Cir. 1972)).
Jurisdiction is lacking, therefore, if any plaintiff and any
defendant are citizens of the same state. The Mennen Co. v. Atl.
Mut. Ins. Co., 147 F.3d 287, 290 (3d Cir. 1998) (citation
omitted). Moreover, under Section 1332, "a corporation shall be
deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place
of business." 28 U.S.C. § 1332(c)(1).
If complaint fails to allege subject matter jurisdiction, or
contains defects in the jurisdictional allegations, it may be
challenged on its face. 5A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1250, at 212-18 (2d ed.
1990). A court evaluating a facial challenge must accept the
allegations in the complaint as true, and disposition of the
motion becomes purely a legal question. Gould Elecs., Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen,
549 F.2d at 891. In reviewing a facial attack, a court may rely
on documents referenced within the complaint and attached
thereto, but must view them in the light most favorable to the
nonmoving party. See id. at 176 & n. 6; Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
It is clear from the face of the complaint that both US Air and
Wilmington Trust are citizens of Delaware under
28 U.S.C. § 1332(c)(1). Because complete diversity does not exist between
Wilmington Trust and all of the defendants, the pendent state
claims must be dismissed for lack of subject matter jurisdiction. V. CONCLUSION
Based on the foregoing, Counts I and II of Plaintiff's
complaint shall be dismissed pursuant to FED. R. CIV. P.
12(b)(6). The remaining pendent state claims shall be dismissed
for lack of subject matter jurisdiction. An appropriate order
will follow. ORDER OF COURT
AND NOW, this 9th day of September, 2005, upon
consideration of the Motions to Dismiss filed on behalf of
Defendants, County of Allegheny, Allegheny County Airport
Authority, Kent G. George, Earl Hord, Robert J. Macey, Glenn
Mahone, David J. Mayernik Jon Pippy, Richard L. Shaw, Mary Pat
Soltis, and Rich Stanizzo (Document No. 6), and on behalf of
the Defendant, Allegheny County Industrial Development Authority
(Document No. 7), the Plaintiff's response thereto, together
with the briefs and appendices filed therewith, IT IS HEREBY ORDERED that the motions to dismiss are GRANTED.
Counts I and II of Plaintiff's complaint are hereby DISMISSED
pursuant to FED. R. CIV. P. 12(b)(6). The remaining pendent state
claims are hereby DISMISSED for lack of subject matter
jurisdiction. The Clerk is directed to mark this case closed.
© 1992-2005 VersusLaw Inc.