United States District Court, M.D. Pennsylvania
December 6, 2005.
DEAN SPOSTO, KEVIN SPOSTO and MILLENNIUM PACKAGING SERVICE, INC., Plaintiffs,
BOROUGH OF DICKSON CITY, ET AL., Defendants.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Before me is Defendants Borough of Dickson City ("Borough"),
Paul Kwiec, William Stadnitski, and Philip Davitt's (collectively
"Defendants") Motion to Dismiss Plaintiffs' Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 16.)
For reasons set forth below, Defendants' Motion to Dismiss will
be granted in part and denied in part.
The Amended Complaint alleges that the Plaintiffs, Dean Sposto
and Kevin Sposto, are the owners of Millennium Packaging Service,
Inc. ("Millennium") (collectively "Plaintiffs"), and that
Millennium has a facility in Dickson City, Pennsylvania. They
allege that they are aligned with the so-called Majority Faction
in Dickson City politics. They allege on the other hand, Paul
Kwiec is a member of the Minority Faction, and a minority member
of Dickson City council, and that William Stadnitski is the
Police Chief of Dickson City, and is aligned with the Minority
Faction. Phillip Davitt is a patrolman on the Dickson City Police
force. Plaintiffs allege that these political alignments and
consequent differences of opinion are at the root of the Plaintiffs' claims.
Plaintiffs allege that they secured a building permit in June,
2004, and that Chief Stadnitski and Patrolman Davitt undertook to
investigate whether it was ever issued, and/or whether it was
issued properly.*fn1 In addition to writing letters to the
Zoning Board of Dickson City, letters were also written to the
Department of Labor & Industry of the Commonwealth of
Pennsylvania. At the same time, Chief Stadnitski made statements
to the media to the effect that he was investigating a
discrepancy in the dates and "we think things have been tampered
with but we can't prove it." Councilman Kwiec is alleged to have
said [the issuance of the permit] "is one of the crookedest
things" and that he "said he found a backdated building permit."
Plaintiffs also allege that Chief Stadnitski and Patrolman
Davitt entered the Plaintiffs' property, despite `no trespassing'
signs, and searched the property by riding around the lot and
sometimes circling cars in the lot. The Chief and Patrolman
Davitt also stopped Plaintiffs' employees as they left the
premises and conducted license and registration checks, and
sometimes issued citations for minor infractions, most of which
Plaintiffs allege the foregoing conduct provides the grounds
for six claims, viz, Count I Violation of Plaintiffs' First
Amendment Speech and Political Association Rights; Count II
Violation of Plaintiffs' Fourteenth Amendment Due Process Rights;
Count III Violation of Pennsylvania Constitution; Count IV
Defamation Under Pennsylvania Law; Count V-Violation of
Plaintiffs' Fourth Amendment Rights; and, Count VI Vicarious
Liability, Failure to Train, Supervise and Discipline. This matter is now ripe for disposition.
1. STANDARD OF REVIEW
a. Motion to Dismiss: Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
for the dismissal of a complaint, in whole or in part, for
failure to state a claim upon which relief can be granted.
Dismissal is appropriate only if, accepting all factual
allegations in the complaint as true and "drawing all reasonable
inferences in the plaintiff's favor, no relief could be granted
under any set of facts consistent with the allegations in the
complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, a court should consider the
allegations in the complaint, exhibits attached to the complaint
and matters of public record. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The court may also consider "undisputedly authentic" documents
where the plaintiff's claims are based on the documents and the
defendant has attached a copy of the document to the motion to
dismiss. Id. The court need not assume that the plaintiff can
prove facts that were not alleged in the complaint, see City of
Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir.
1998), nor credit a complaint's "bald assertions" or "legal
conclusions." Morse v. Lower Marion School District,
132 F.3d 902, 906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the court's role is
limited to determining whether the plaintiff is entitled to offer
evidence in support of the claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The court does not consider whether the
plaintiff will ultimately prevail. See id. In order to survive a motion to
dismiss, the plaintiff must set forth information from which each
element of a claim may be inferred. See Kost v. Kozakiewicz,
1 F.3d 176, 183 (3d Cir. 1993). The defendant bears the burden of
establishing that the plaintiff's complaint fails to state a
claim upon which relief can be granted. See Gould Electronics v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
b. GENERAL: 42 U.S.C. § 1983
In order to recover under the Civil Rights Act,
42 U.S.C. § 1983, Plaintiffs need to show that: (1) the conduct complained of
deprived the plaintiff of rights, privileges and immunities
secured by the Constitution or laws of the United States; and (2)
the conduct was committed by a person acting under color of state
law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982);
Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d. Cir. 1993).
a. COUNT I FIRST AMENDMENT CLAIM
"The Supreme Court has explicitly held that an individual has a
viable claim against the government when he is able to prove that
the government took action against him in retaliation for his
exercise of First Amendment Rights." Anderson v. Davila,
125 F.3d 148, 160 (3d Cir. 1997) (citations omitted). "In general,
constitutional retaliation claims are analyzed under a three-part
test. Plaintiff must prove (1) that he engaged in
constitutionally-protected activity; (2) that the government
responded with retaliation; and (3) that the protected activity
caused the retaliation. Eichenlaub v. Twp. of Indiana,
385 F.3d 274, 282 (3d Cir. 2005). Applying these elements to the
allegations at hand, it is clear the Plaintiffs allege their
First Amendment right to free association, that Chief Stadnitski,
Councilman Kwiec and Patrolman Davitt retaliated by the conduct noted above,
and that the association is what caused the retaliating conduct.
Retaliation claims under the First Amendment generally fall
into two different categories: (1) claims dealing with conduct
interfering with access to courts and (2) claims dealing with
conduct that are in retaliation to protected First Amendment
activities. Grimm v. Borough of Norristown,
226 F. Supp. 2d 606, 637 (E.D. Pa 2002) (citations omitted). It has been
determined that for the latter line of cases, the additional
chilling requirements need not be met:
The rule in this [Third] Circuit appears to be that
in cases alleging interference with a person's right
of access to the courts, a plaintiff must allege that
the defendant's actions chilled the exercise of this
right, but that in cases alleging retaliation, a
plaintiff need not allege that defendant's conduct
had a chilling effect.
Id. (citing Anderson v. Davila, 125 F.3d 148
, 163 n. 15 (3d
Cir. 1997)). In so concluding, the District Court for the Eastern
District of Pennsylvania reasoned that Anderson spoke in
general terms with respect to the chilling effect requirement by
"draw[ing] a distinction between right of access cases and
retaliation cases generally, not between right of access cases
and retaliation cases where the protected activity is the filing
of a lawsuit specifically." Id. at n. 20. Hence, Plaintiffs in
their retaliation case do not have to show that Defendants'
conduct chilled Plaintiffs from exercising their First Amendment
rights. Furthermore, only the protected activity element of the
three part test is a question of law. Id. The retaliation and
causation requirements "present questions for the fact finder and
are not subject to review" at this stage. Baldassare v. New
Jersey, 250 F.3d 188
, 195 (3d Cir. 2001).
Moreover, Plaintiffs also allege that by virtue of the
deprivation of their right through the retaliatory conduct, they suffered economic loss, emotional
pain and suffering and on-going chilling of Plaintiffs' political
speech and association. (Doc. 13 ¶ 72.)
The motion to dismiss Count I will therefore be denied.
4. COUNT II DEPRIVATION OF DUE PROCESS UNDER THE FOURTEENTH
Plaintiffs claim a liberty interest in their reputation as well
as a property interest in the zoning permit.
The elements of a Section 1983 action based upon the due
process clause of the Fourteenth Amendment are "1) that
[plaintiff] was deprived of a protected liberty or property
interest; 2) that this deprivation was without due process; 3)
that the defendant subjected the plaintiff or caused the
plaintiff to be subjected to, this deprivation without due
process; 4) that the defendant was acting under color of state
law; and, 5) that the plaintiff suffered injury as a result of
the deprivation without due process." Schwartz v. County of
Montgomery, 843 F. Supp. 962 (E.D. Pa. 1994) (citing Sample v.
Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989)).
In the case of the claim for damage to reputation, "[t]here is
no federal constitutional right to reputation". Kulwicki v.
Dawson, 969 F.2d 1454,1458 (3d. Cir. 1992).
In the case of the claim that the Plaintiffs' property interest
in the building permit was deprived, the allegations of the
Amended Complaint fail to support any deprivation. Indeed,
Plaintiffs had the building permit and used it when they wished
to do so. The Amended Complaint, at best, alleges that the
issuance of the permit was questioned and investigated and that
its issuance was criticized. No where does the Amended Complaint
allege that Plaintiffs were deprived of its use. The motion to dismiss Count II will therefore be granted.
5. Count III VIOLATION OF PENNSYLVANIA CONSTITUTION
Both Plaintiffs and Defendants agree that there is no private
cause of action for violations of the Pennsylvania Constitution.
Therefore, Count III will be dismissed.
6. COUNT IV DEFAMATION UNDER PENNSYLVANIA LAW
Defendants argue that Count IV should be dismissed as the
allegedly defamatory statements were made by Dickson City Borough
Councilman Paul Kwiec and Dickson City Police Chief Wiliiam A.
Stadnitski. As high public officials, acting within the scope of
their authority, Defendants argue that they are entitled to
absolute immunity from Plaintiffs' state law defamation claim.
It is true that in Pennsylvania, high public officials enjoy
absolute privilege from state law defamation claims, whether
false or with malice, as long as the statements were made within
the scope of his/her authority. Testa v. City of Philadelphia,
No. 00-3890, 2003 U.S. Dist. LEXIS 18030, at *6 (E.D. Pa. Oct. 8,
2003). It is also true that the question as to whether a
defendant is a high public official entitled to absolute immunity
or not is a two part inquiry done on a case by case basis. Id.
The Court agrees that Councilman Kwiec is a high public
official. Mcerlean v. Darby, 157 F. Supp. 2d 441,447 (E.D. Pa.
2001) (The court had "no trouble finding that borough council
members qualify as `high public officials' for the purposes of
immunity from defamation." (quoting Satterfield v. Borough of
Schuylkill Haven, 12 F. Supp. 2d 423, 442 (E.D. Pa. 1998)).
Plaintiffs argue, however, that Chief Stadnitski is not a high
public official even though Plaintiffs admit that he is
a "high-ranking municipal policy maker" in Count VI of their complaint). More importantly, however, Plaintiffs argue
that neither Chief Stadnitski nor Councilmen Kwiec's statements
were made in the course of their official duties or within the
scope of their authority. (Doc. 24-1 at 12.)
Plaintiffs have alleged enough in their Amended Complaint to
state a claim upon which relief can be granted. The Amended
Complaint alleges that both Chief Stadnitski and Councilman Kwiec
took actions in relation to zoning and permit matters, which are
areas that generally fall out of the scope of their respective
offices. Some of these acts include writing letters to other
agencies and making statements to the media. (Doc. 13-1 ¶¶
The motion to dismiss Count IV will therefore be denied.
6. COUNT V CLAIMS UNDER THE FOURTH AMENDMENT
Plaintiffs allege that Chief Stadnitski, Patrolman Davitt and
other Dickson City patrolmen conducted warrantless searches on
the individual Plaintiffs' property upon which Plaintiff
Millennium conducts its operations. Moreover, Plaintiffs allege
these warrantless searches occurred despite `private property'
and `no trespassing' postings on the property. Plaintiffs further
alleges that Defendants repeatedly pulled over the vehicles of
Plaintiffs' employees and business invitees. It is well
established that a warrantless search without probable cause is
an invasion of privacy and is therefore actionable as a violation
of the Fourth Amendment under Section 1983. See Monroe v. Pape,
365 U.S. 167, 171 (1961); Katz v. United States, 389 U.S. 347,
Defendants argue, however, that Count V should be dismissed
because the injury asserted is not of Plaintiffs but of its
employees and business invitees for which Plaintiffs have no
standing. The Court agrees. The Supreme Court has held that
"plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Potthoff v. Morin,
245 F.3d 710 (8th Cir. 2001) (quoting Warth v. Seldin,
422 U.S. 490, 499 (1975)). While it is true that corporations have
standing to bring suit, it still has to be based on cognizable
injury to the corporation. Grimm v. Borough of Norristown,
226 F. Supp. 2d 606, 633 (E.D. Pa 2002). In Grimm, Grimm Brothers
had standing as a corporation because the multiple citations
entered against two of its properties injured the corporation
itself as it interrupted the corporation's normal operation of
business. Id. at 633-34. Standing, however, was denied when the
injury was not as direct:
Although plaintiffs might argue that Grimm Brothers
should have standing to challenge the citations
issued against Gary Grimm because Gary Grimm was
occupying the building in order to ensure Grimm
Brothers' operation and because the company was
injured when Gary Grimm was penalized for occupying
the premises, we find this connection to be too
tenuous to allow Grimm Brothers standing to challenge
Id. at 634.
Likewise, the Court believes that while the employees and guest
invitees might have a Fourth Amendment claim for the allegedly
illegal traffic stops, Plaintiffs in this case, do not.
The Motion to Dismiss Count V will therefore be granted.
7. COUNT VI VICARIOUS LIABILITY OF DICKSON CITY
Plaintiffs allege that the Borough of Dickson City is
vicariously liable for the unconstitutional conduct of Councilman
Kwiec, Chief Stadnitski and patrolman Davitt because the Borough
has failed to adequately train, supervise and/or discipline them.
Plaintiffs further allege that the Borough was aware of the
Defendants unlawful actions and that the Borough has acted with
deliberate indifference. Defendants argue that since there was no deprivation of
constitutional rights, the question of whether municipal
liability exist should be dismissed. As all constitutional
violation claims against the Defendants have not be dismissed,
the Court will address whether Plaintiffs have sufficiently
pleaded municipal liability in their Amended Complaint.
While a municipality cannot be sued solely on the basis of its
employees' unconstitutional acts, it can be sued for its official
policies and customs that result in constitutional violations.
Monell v. Dep't of Soc. Serv. Of the City of New York,
436 U.S. 658, 690-91 (1978). In finding what constitutes official policies
and customs sufficient to hold a municipality liable, the Supreme
Court held that a policy of inadequate training or supervision is
sufficient. City of Canton v. Harris, 489 U.S. 378,388 (1989).
A showing of such a policy requires proof of deliberate
indifference by the local government, where "a deliberate choice
to follow a course of action is made from among various
alternatives by city makers". Id. (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 483-84). Custom could generally be
established when there is a practice that is so routinely
followed that it can be "ascribable to the municipal
decisionmakers". Anela v. City of Wildwood, 790 f.2d 1063,1067
(3d Cir. 1986).
Section 1983 claims against municipalities are not subject to
any heightened pleading requirements. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). In their Amended Complaint, Plaintiffs have
sufficiently alleged that the Borough is liable for its policy of
inadequate training and supervision.
The Motion to Dismiss Count VI will therefore be denied. CONCLUSION
The motion to dismiss Counts I, IV, VI will be denied. Count I
will remain because Plaintiffs have sufficiently alleged that
Defendants have engaged in defamatory actions in retaliation to
Plaintiffs' political association. Count IV remains because
Plaintiffs have sufficiently alleged, regardless of whether
Stadniski and Kweic are high public officials or not, that the
defamatory statements were made outside the scope of these
Defendants' official authority. Count VI remains because
Plaintiffs have sufficiently alleged that municipal liability
exists because of the Borough's policy and customs that resulted
in deprivation of Plaintiffs' constitutional rights.
The motion to dismiss Counts II, III and V will be granted.
Count II will be dismissed as Plaintiffs failed to allege the
loss of the building permit in which they claim to have a vested
interest. Count III will be dismissed as both parties have agreed
that there is no private cause of action for violations of the
Pennsylvania Constitution. Count V will be dismissed as
Plaintiffs have failed to allege a direct injury caused by the
multiple traffic stops.
As such, Defendants' Motion to Dismiss (Doc. 16) will be
granted in part and denied in part. An appropriate order follows. ORDER
NOW, this 6th day of December, 2005, IT IS HEREBY
ORDERED that Defendants' Motion to Dismiss (Doc. 16) is GRANTED
in part and DENIED in part:
The Motion to Dismiss the following claims is GRANTED:
(1) Count II Violation of Fourteenth Amendment is
(2) Count III Violation of Pennsylvania
Constitution is DISMISSED; and
(3) Count V Violation of Fourth Amendment is
The Motion to Dismiss the following claims is DENIED::
(1) Count I Violation of First Amendment;
(2) Count IV Violation of Defamation Under
Pennsylvania State Law; and
(3) Count VI Municipal Liability.
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