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Knute Enterprises, Inc. v. Borough

September 26, 2007


The opinion of the court was delivered by: A. Richard Caputo United States District Judge


Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), and in the alternative, Rule 12(b)(6). (Doc. 20.) Defendants' motion to dismiss based upon Rule 12(b)(1) will be granted. Because the Court will dismiss Plaintiffs' claims under Rule 12(b)(1) for lack of ripeness, arguments based on abstention will not be discussed.


The facts as alleged in Plaintiff's Complaint are as follows.

Plaintiff Knute Enterprises, Inc. is the owner of a parcel of land known as 434-36 Main Street, Dupont Borough, Luzerne County, Pennsylvania. (Compl. ¶ 16, Doc. 1.) Main Street is the only public road upon which the property touches, and is therefore the only street where Plaintiffs' can gain access to the land. (Id. ¶ 18.) On or about July 20, 2004, Knute made an application to the Pennsylvania Department of Transportation ("Penn DOT") for a Highway Occupancy Permit for a driveway to access Main Street from the property. (Id. ¶ 22.) On or around September 1, 2004, Plaintiff Knute began discussions with Dupont Borough for a "No Parking" ordinance as required by the Penn DOT. (Id. ¶ 27.) This ordinance was to span a distance of three hundred and seventy five (375) feet on the north side of Main Street in an easterly direction. (Id. ¶ 27.) On September 21, 2004 the Penn DOT informed Knute of additional requirements for the permit. (Id. ¶ 23.) These requirements included that "'Sight distance to the left and right for all proposed driveways must be shown. The required sight distance must be obtained before a permit can be approved. A 'No Parking' ordinance is necessary to obtain the required sight distance for your proposed driveway.'" (Id. ¶ 23;Id. Ex. D.) On or about July 14, 2005, Dupont Borough enacted an ordinance on the northern side of Main Street for two hundred and forty (240) feet. (Id. ¶ 28.) On September 8, 2005, the Penn DOT notified Knute that the "No Parking" ordinance passed by Dupont Borough was insufficient in length for the required sight distance. (Id. ¶ 29.) Knute then requested that Dupont extend the "No Parking" ordinance to comply with the Penn DOT. (Id. ¶ 30.) Although numerous meetings regarding the "No Parking" ordinance were held by Dupont Borough, no ordinance in conformity with the Penn DOT requirements were passed. (Id. ¶ 31-32.) Plaintiffs have not filed an administrative appeal of Penn DOT's requirement that additional length be added to the "No Parking" ordinance. (Id. ¶ 36.) Plaintiffs filed a Petition of Condemnee for Appointment of Board of Viewers in the Court of Common Pleas of Luzerne County to No. 1907 of 2006 pursuant to the state's Eminent Domain Code on April 5, 2006. (Id. ¶ 44.)

On October 5, 2006, Plaintiff filed a Complaint. (Doc. 1.) On October 30, 2006, Defendants filed the present motion to dismiss. (Doc. 20.) This motion is fully briefed and ripe for disposition.


Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action where the court lacks jurisdiction over the subject matter of that action. FED. R. CIV. P. 12(b)(1).

Because lack of ripeness impedes justiciability and thus the subject matter jurisdiction of the district court, ripeness claims should be raised in a Rule 12(b)(1) motion to dismiss rather than in a summary judgment motion. Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 (3d Cir. 1993). A defendant may challenge the existence of subject matter jurisdiction in two fashions. See Mortensen v. First Fed. Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Where a defendant attacks the complaint as deficient on its face, the Court must assume that "the allegations contained in the complaint are true." Id. In deciding a Rule 12(b)(1) facial attack, the court may only consider the allegations contained in the complaint and the exhibits attached to the complaint; matters of public record such as court records, letter decisions of government agencies and published reports of administrative bodies; and "undisputably authentic" documents which the plaintiff has identified as a basis of his claims and which the defendant has attached as exhibits to his motion to dismiss. Hunter v. United States, 2000 WL 1880257, at *3 (M.D. Pa. Dec. 15, 2000). See generally Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993).

However, when the motion to dismiss attacks the existence of subject matter jurisdiction in fact, no presumptive truthfulness attaches to the allegation included in the plaintiff's complaint. Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891). Thus, the Court may weigh all of the available evidence to satisfy itself that subject matter jurisdiction indeed exists. Id. It is important to note also that the existence of disputed material facts will not preclude the Court from evaluating the jurisdictional allegations set forth in the complaint. Gould Elecs., Inc. V. United States, 220 F.3d 169, 176 (3d Cir. 2000).

In the present matter, Defendants' motion will be treated as a facial attack on subject matter jurisdiction. Accordingly, this Court will consider the allegations contained in the complaint and all attachments thereto.


The ripeness doctrine seeks to prevent courts from adjudicating cases prematurely and thus entangling themselves in abstract disagreements. Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (overruled on other grounds). It is well settled that challenges to a Fifth Amendment Just Compensation Takings claim against a municipality are not ripe until the plaintiff has met a two-step inquiry. First, plaintiff must allow the local land use authorities to make a "final" decision on the nature and extent of the restrictions on the plaintiff's use of the property. See Williamson Planning Comm. v. Hamilton Bank, 473 U.S. 172, 186-94 (1985). Second, the plaintiff must have unsuccessfully exhausted state procedures for "just compensation," so long as the state procedures provided are adequate. Williamson, 473 U.S. at 195 ("[I]f a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.").

The Third Circuit Court of Appeals has further applied the Williamson rule to substantive due process, procedural due process, and equal protection claims. See Taylor, 983 F.2d at 1292-95. As the taking alleged in this case is an as-applied challenge to the ordinance, the two-step inquiry is applicable in this ...

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