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Sershen v. Cholish

October 26, 2007


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is the Motion to Dismiss Plaintiff's Complaint (Doc. 1) of Defendants Eugene Cholish, J. Scotty Lemoncelli, Bob Harvey, Former Mayor Kenneth Propst, Mayor Ed Fairbrother, and Borough of Archbald (Doc. 14). Because Plaintiff has standing to bring this claim; because it is redundant to sue both a municipality and its officials in their official capacities; because Plaintiff has made no factual allegations against Defendants Propst or Fairbrother; because Plaintiff has stated claims against Defendant Cholish for unreasonable seizure, First Amendment retaliation, state law false arrest and malicious prosecution, and false arrest under the Federal Constitution; because she has not stated claims against Defendant Cholish under the Due Process Clause, for malicious prosecution under the Federal Constitution, or for assault, battery, or abuse of process under state law; because Plaintiff has stated a claims for violation of her Fourth Amendment rights against Defendant Harvey, her procedural due process rights against Defendants Harvey, Lemoncelli, and Archbald Borough, and her rights under the Takings Clause against the Borough; because Plaintiff has stated claims for civil conspiracy both under § 1983 and Pennsylvania law; and because she has alleged sufficient facts to support an award of punitive damages against the individual Defendants, Defendants' motion to dismiss will be granted in part and denied in part. Because Federal Rule of Civil Procedure 15 and precedent from the Third Circuit Court of Appeals call for leave to amend a complaint being freely given, especially in civil rights cases, the Court will grant Plaintiff's request that the Court grant her leave to amend her Complaint. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.


Plaintiff Mary Sershen filed her Complaint (Doc. 1) on June 1, 2007. Therein, she alleged as follows: At all relevant times, Defendant Eugene Cholish was a police officer employed by the Borough of Archbald, Defendant J. Scotty Lemoncelli was the Borough's Zoning Officer and a policymaker for the Borough, and Defendant Bob Harvey was the Borough's Fire Chief and a policymaker for the Borough. (Compl., Doc. 1 ¶¶ 4-6.) Defendant Kenneth Propst was, until December 31, 2005, the Mayor of the Borough and a policymaker for the police department and the Borough. (Id. ¶ 7.) Defendant Ed Fairbrother was at relevant times after January 1, 2006 the Mayor of the Borough and a policymaker for the police department and the Borough. (Id. ¶ 8.) Defendant Borough of Archbald is a municipal corporation. (Id. ¶ 9.) And Defendant Stillwater Environmental Services, Inc., is a corporation awarded a contract with the Borough for demolishing Plaintiff's property. (Id. ¶¶ 10, 31, 33-34.)

Plaintiff alleges that in 1996 she and her then-husband David Barth purchased property located at 590 Main St., Eynon, Pennsylvania (the Eynon Property), which was improved with a two-story dwelling. (Id. ¶ 12.) Plaintiff, her husband, and her father signed the mortgage, but only Plaintiff's name and her husband's were on the deed. (Id. ¶ 13.) Plaintiff separated from her husband and moved out of the Eynon Property on May 27, 2005 and filed for divorce on June 6, 2005. (Id. ¶¶ 14-15.) The divorce decree was issued on or about January 11, 2007. (Id. ¶ 15.)

On July 11, 2005, after Plaintiff had moved out, there was a fire at the Eynon Property, which did not completely destroy it. (Id. ¶¶ 16-17.) The next day, Plaintiff filed a claim for damages caused by the fire under her homeowner's policy with Allstate Insurance Company (Allstate), and a representative from Allstate went to the property and boarded up most of the downstairs windows. (Id. ¶¶ 18-19.) Plaintiff's father later, in March 2006, boarded and re-boarded windows and visited the property at other times to perform upkeep. (Id. ¶ 21.) An Allstate adjustor estimated the replacement value of the home, less depreciation, to be sixty-five thousand, one hundred eighty-eight dollars and seventh-three cents ($65,188.73) and the replacement value of the contents, less depreciation and the deductible, to be thirteen thousand, nine hundred twenty-four dollars and seventy-seven cents ($13,924.77). (Id. ¶ 20.)

Plaintiff alleges that on June 12, 2006, Fire Chief Harvey entered the Eynon Property without a warrant, probable cause, or notice to Plaintiff, and then prepared a letter to the Borough's solicitor expressing his recommendation that the structure must be torn down because of the cost that would be required to rebuild it in a safe and liveable condition. (Id. ¶¶ 22-23.) Removing the structure and bringing the property to a safe condition would cost between ten thousand ($10,000) and eleven thousand ($11,000) dollars, he estimated. (Id. ¶ 23.) Plaintiff alleges that Harvey's walkthrough of the property exceeded the scope of any examination permitted under Borough Ordinance 4 of 1979 § 2 and that his failure to send Plaintiff a copy of his letter to the Borough violated Borough Ordinance 4 of 1979 § 3. (Id. ¶¶ 22, 24-25.)

Shortly after receiving Harvey's letter, on June 19, 2006, the Borough's solicitor notified Allstate that it must issue a check for eleven thousand dollars ($11,000.00) to the Borough for removal of the structure on the Eynon Property, pursuant to Borough Ordinance 1 of 2004; he did not send Plaintiff a copy of this letter. (Id. ¶ 26.) On July 5, 2006, Allstate sent a check to the Borough for ten thousand forty-one dollars and ninety-seven cents ($10,041.97). The minutes of a Borough Council meeting on July 12, 2006 state that the Borough received the check for demolition or other action in the event of an emergency situation at the Eynon Property. (Id. ¶ 28.) On July 15, 2006, Harvey advised Jack Giordano*fn1 that the structure be taken down as soon as possible to eliminate unsafe conditions there, but he did not send a copy of this letter to Plaintiff. (Id. ¶ 29.) Plaintiff was unaware of all the foregoing activities at the time they occurred.

Defendant Lemoncelli, the zoning officer, allegedly began soliciting bids for the demolition of the Eynon Property and on August 7, 2006, he accepted a proposal from Defendant Stillwater to raze the property; this proposal contained Plaintiff's name and current cell phone number. (Id. ¶¶ 30-31.) At an August 16, 2006 meeting of the Borough, the Borough awarded the demolition contract to Stillwater. (Id. ¶ 33.) In mid-August 2006, Anthony Giordano, on behalf of the Borough, asked the Pennsylvania American Water Demolition Department to remove the meter and shut off the water at the property, and nobody notified Plaintiff of this action - though, Plaintiff believes the water had been turned off in July 2005. (Id. ¶ 32.) And on August 19, 2006, still unknown to Plaintiff, Stillwater was at the Eynon Property to demolish the dwelling there. (Id. ¶ 34.) By August 22, 2006, Stillwater had completely demolished the dwelling and no Defendant ever made any attempt to notify Plaintiff of the demolition, and she was not provided with compensation for her property or an opportunity to repair or sell the property, or even to remove personal belongings. The property, Plaintiff alleges, was not a hazzard or nuisance, and there were alternatives to demolition. (Id. ¶¶ 56-60.)

Plaintiff received her first notice of the demolition on August 19, 2006. On that day, she visited the property, saw the trucks, and asked some workers why they were at the property. When they said they were tearing the dwelling down, she asked for paperwork verifying this, and they replied that they needed to find their boss but could not. (Id. ¶ 35.) Because the workers could not prove they had authority to tear down the dwelling, Plaintiff called the police, and Defendant officer Cholish responded. (Id. ¶¶ 37-38.) When Cholish arrived, Plaintiff appealed for his help, stating that she did not authorize any demolition. (Id. ¶ 39.) Cholish then made a phone call and told Plaintiff that she did not own the property; rather, the bank did. (Id. ¶ 40.) He refused to tell Plaintiff whom he had called and then ordered her off the property. (Id. ¶ 40-42.) Although her name was still on the deed, Plaintiff complied and walked off the property onto Borough property next to it. (Id. ¶¶ 42-43.) Cholish again told her to stay off the Eynon Property; Plaintiff replied that she was not on the Eynon Property, she was on Borough property next to it, and then she left the area. (Id. ¶¶ 43-44.) Plaintiff later returned with her adult daughter and saw the same Stillwater workers there and saw wood beams being removed from the dwelling. (Id. ¶ 45.) Cholish and another officer from the Mayfield Police Department, whose identity is unknown, soon returned to the property as well, and Cholish told Plaintiff that he had ordered her to stay off the Eynon Property. (Id. ¶¶ 46-47.) Plaintiff again stated that even though she owned the Eynon Property, she was not standing on it; instead, she was on Borough property. (Id. ¶ 48.) To this, Cholish replied that "that was enough" and told Plaintiff she was under arrest; when Plaintiff asked what she was being arrested for, Cholish told her it was for trespassing on the Eynon Property. He never read Plaintiff her rights. In response to Plaintiff's protestation that she owned the Eynon Property, Cholish again said that she did not own it, and he transported her to the Archbald Police Station and put her, still handcuffed, into a cell. (Id. ¶¶ 49-54.)

Some time later, the Chief of the Archbald Police arrived at the station and had a conversation with Cholish outside of Plaintiff's presence, and then Cholish released Plaintiff and told her he would send charges to her in the mail. (Id. ¶ 55.) In September 2006, Cholish filed and mailed to Plaintiff a charge of disorderly conduct under 18 Pa. Cons. Stat. Ann. § 5503(a)(4), but filed no trespassing charge. (Id. ¶ 61.) Cholish did not appear at the November 2, 2006 hearing for the disorderly conduct charge, so the magistrate dismissed it. (Id. ¶ 63.)

Plaintiff sues all individually named Defendants in both their individual and official capacities. In Count One (I), Plaintiff alleges that Cholish arrested her without probable cause, in violation of her rights under the Fourth Amendment to the United States Constitution, as incorporated against the states by the Fourteenth Amendment, and under the Due Process Clause of the Fourteenth Amendment. In Count Two (II), Plaintiff alleges that Cholish seized and prosecuted her in retaliation for her speech, in violation of her rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. Plaintiff also brings state common lawclaims for assault, (Count III), battery (Count IV), and abuse of process (Count VII) against Cholish, as well as claims for false arrest and imprisonment (Count V) and malicious prosecution (Count VI) under both state law and the federal constitution.

Plaintiff further alleges that Defendants Lemoncelli (Count VIII), Harvey (Count IX), Propst (Count XI), and Fairbrother (Count XII) deprived her of "property rights" in violation of the Fourteenth Amendment. In Count Ten (X), Plaintiff alleges that Harvey violated her rights under the Fourth and Fourteenth Amendments by entering her property without a warrant. In Count Thirteen (XIII), Plaintiff alleges that the Borough of Archbald engaged in a policy or custom of depriving her of her property rights without due process of law and effected a taking of her property without just compensation in violation of her rights under the Fifth and Fourteenth Amendments. Counts Fourteen (XIV), Fifteen (XV) and Sixteen (XVI) are brought against Stillwater, which does not join the other Defendants in moving to dismiss. Count Fourteen, brought pursuant to 42 U.S.C. § 1983, alleges that Stillwater engaged in a taking of Plaintiff's property without just compensation and deprived her of due process rights under the Fourteenth Amendment, and Counts Fifteen and Sixteen allege conversion, destruction of property, and negligent demolition in violation of state law. Finally, in Count Seventeen (XVII), Plaintiff alleges that all Defendants except the Borough of Archbald entered into a civil conspiracy to engage in unlawful conduct, depriving Plaintiff of her federal constitutional and state common law rights.

All Defendants except Stillwater filed a Motion to Dismiss Plaintiff's Complaint (Doc. 14) on August 6, 2007, and filed a Memorandum in Support of their motion (Doc. 17) on August 17, 2007. Plaintiffs filed their Memorandum in Opposition to Defendants' motion (Doc. 18) on August 24, 2007, and no reply brief was filed. The motion is fully briefed and ripe for disposition.


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 as true all the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d. 80 (1957)). As a result of the Twombly holding, Plaintiffs must now nudge their claims "across the line from conceivable to plausible" to avoid dismissal. Id. The Supreme Court noted just two weeks later in Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam), that Twombly is not inconsistent with the language of Federal Rule of Civil Procedure 8(a)(2), which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts are not necessary; the statement need only " 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' " Id. (citing Twombly, 127 S.Ct. at 1959 (quoting Conley, 355 U.S. at 47)).

There has been some recent guidance from the Courts of Appeals about the apparently conflicting signals of Twombly and Erickson. The Second Circuit Court of Appeals reasoned that "the [Supreme] Court is not requiring [in Twombly] a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). Similarly, the Seventh Circuit Court of Appeals stated that "[t]aking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8." Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, - F.3d -, 2007 WL 2406859, at *4 (7th Cir. Aug. 24, 2007).

Until further guidance, this Court will follow the guidance of the Second and Seventh Circuit Courts of Appeals, and apply a flexible "plausibility" standard, on a case- by-case basis, in those contexts in which it is deemed appropriate that the pleader be obliged to amplify a claim with sufficient factual allegations.

In deciding a motion to dismiss, the 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), cert. denied, 510 U.S. 1042 (1994). 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 Merion Sch. Dist., 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 Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


I. Standing

Defendants argue that Plaintiff lacks standing to bring a civil rights suit arising out of the demolition of the property because it was jointly owned by Plaintiff and her then-husband. (Defs.' Mot. to Dismiss, Doc. 14, at 2.) The minimum requirements for standing are that (1) the Plaintiff have suffered an "injury in fact," meaning "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent," (2) the injury must be "fairly traceable to the challenged action of the defendant," and (3) it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations, quotation marks, and alterations omitted). Additionally, to have standing, a plaintiff must meet three prudential limitations on standing. The prudential limit relevant here is the requirement that " the plaintiff must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). Defendants claim that Plaintiff and her former husband, as spouses, owned the home in a tenancy by the entirety, and that they are "looked upon as a single entity, just like a corporation." (Defs.' Mem. in Supp., Doc. 17, at 5.) It is this entity, not Plaintiff or her ex-husband individually, which has the claim for allegedly wrongful demolition of the property, Defendants argue. (See id. at 6.). But Plaintiff's claims based on the demolition of the property are brought pursuant to 42 U.S.C. § 1983. Section 1983 provides a cause of action for the vindication of federal constitutional and statutory rights of "any citizen of the United States or other person within the jurisdiction thereof." 42 U.S.C. § 1983 (emphasis added). Plaintiff is a citizen of the United States and a person within its jurisdiction, and she alleges that she had an ownership interest in the Eynon Property. She shared her ownership interest with her then-husband, but it cannot be said that she did not have rights in the property. And her suit claims that those rights in the property were interfered with in such a way as to violate her constitutional rights. Her suit is not based on the rights of the tenancy by the entirety as an entity, nor could it be. A tenancy by the entirety is not an entity that has federally protected rights. Plaintiff, however, does have those rights, and as she asserts her own rights in the property, she has standing to bring this suit.

II. Suits Against Individual Defendants in Their Official Capacities

Plaintiffs have sued all individually named Defendants in both their individual and official capacities. Defendants seek dismissal of the official capacity claims as redundant with Plaintiffs' claims against the Borough of Archbald pursuant to Monell v. Department of Social Services of the City of New York. See 436 U.S. 658, 690-91 (1978). Actions against Defendants in their official capacities are "in all other respects other than name" a suit against the government entity. Kentucky v. Graham, 473 U.S. 159, 166 (1985). As such, I will grant Defendants' motion to dismiss with respect to these claims.

III. Defendants Propst and Fairbrother: Counts Eleven, Twelve, and Seventeen

Plaintiff alleges that former Mayor Propst and Mayor Fairbrother deprived her of property rights in violation of the Fourteenth Amendment (Counts XI and XII). She also includes them in her claim of civil conspiracy (Count XVII). Defendants move to dismiss the claims against these Defendants. Plaintiff has not alleged that either Defendant was directly involved in the events surrounding the demolition of the house on the Eynon Property, and to be liable under § 1983, a defendant must have had personal involvement in the alleged wrongdoing. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). "Supervisory liability cannot be based solely upon the doctrine of respondeat superior." Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990). Rather, to hold a superior liable under § 1983 for the unconstitutional activities of one of his subordinates, a plaintiff must establish a causal connection between the superior's actions and the subordinate's unconstitutional activity. See Black v. Stephens, 662 F.2d 181, 189-91 (3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Plaintiff has not alleged that any Defendants or anyone affiliated with the Borough took any actions at all prior to January 1, 2006, the date that Defendant Fairbrother replaced Defendant Propst as mayor and Propst became a private citizen. She has therefore stated no claim against Propst. Further, Plaintiff's complaint contains no factual allegations that Defendant Fairbrother personally directed his subordinates in any of their challenged actions, or that he knew of and acquiesced in those actions. In fact, the factual allegations in the complaint contain no mention of Defendant Fairbrother at all. Plaintiff has therefore failed to state a claim upon which relief can be granted against Defendant Fairbrother, and Defendant's motion to dismiss those claims will be granted.

IV. Probable Cause: Defendant Cholish

Defendants argue that Officer Cholish had probable cause to arrest Plaintiff on August 19, 2006, and that therefore, Plaintiffs' claims alleging a violation of the Fourth Amendment (Count I), retaliation for exercise of her First Amendment rights (Count II), violation of due process rights under the Fourteenth Amendment (Counts I and II), false arrest and imprisonment (Count V), malicious prosecution (Count VI), and abuse of process (Count VII) should all be dismissed for failure to state a claim upon which relief can be granted.

The Supreme Court has adopted a "totality of the circumstances" approach to the existence of probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983). As such, the presence of probable cause is most often regarded as a factual question for the jury in civil actions brought pursuant to § 1983. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). The district court is, however, permitted to "conclude 'that probable cause exists as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding." Id. at 788-89 (quoting Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)).

That is not the case here. "[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested." Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003). Probable cause "does not require that the officer have evidence sufficient to prove guilt beyond a reasonable doubt," but it does require "more than mere suspicion." Orsatti v. N.J. State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Plaintiff alleges that Officer Cholish arrived at the Eynon Property on August 19 only after she had called him there, that she told him she owned the property and did not authorize any demolition, that he made a phone call to someone whose identity he would not share and then incorrectly told her that she did not own the property and ordered her off of it, that she stepped off the property, let Cholish know she was standing on Borough property, and then left the scene. (Compl., Doc. 1 ¶¶ 37-44.) She also alleges that when she returned later that day and Cholish told her that he had ordered her to stay off the property, she again informed him of the fact that she was not presently standing on the Eynon Property but was standing on adjacent Borough property. (Id. ¶¶ 45-48.) She alleges that it was then, in response to only the facts above and no others, that Cholish told her "that was enough" and arrested her for trespassing. (Id. ¶¶49-50.) She alleges that throughout her interaction with Cholish, she maintained that she did in fact own the Eynon Property and could not be trespassing on it, and that, in any case, ever since the first time Cholish ordered her to step off the Eynon Property, she complied and stood only on adjacent Borough property.

The factual allegations above, viewed in the light most favorable to Plaintiff, could reasonably support a finding that no probable cause existed for Cholish to believe that Plaintiff was committing the crime of trespassing. I will not dismiss Plaintiff's claims in Counts I, II, V, VI, and VII for lack of probable cause, but will briefly examine the other elements of those claims to determine whether Plaintiff has stated claims upon which relief can be granted.

A. Unreasonable Seizure

A seizure, in the form of an arrest, is unreasonable within the meaning of the Fourth Amendment if it is carried out without either a warrant or probable cause. Wright v. City of Phila., 409 F.3d 595, 601 (3d Cir. 2005). As discussed above, Plaintiff has alleged sufficient facts for a reasonable fact-finder to determine that she was arrested without a warrant or probable cause. Therefore, Count I of Plaintiff's Complaint states a claim for unreasonable seizure upon which relief can be granted.

B. First Amendment Retaliation

Plaintiff claims, in Count II, that Defendant Cholish arrested her and initiated prosecution in retaliation for her speech. "The First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out." Hartman v. Moore, 547 U.S. 250, 256 (2006).A claim for First Amendment retaliation has three elements: (1) that plaintiff engaged in conduct or speech protected by the First Amendment; (2) that the government responded with retaliatory action sufficient to deter a person of ordinary firmness from exercising his ...

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