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Johnson v. Zwolak

April 7, 2009


The opinion of the court was delivered by: Pratter, J.


Chad Neumann, who purchased Plaintiff Gregory Johnson's real property at a tax sale, moves to dismiss Mr. Johnson's claims against him on grounds that the claims are either untimely or not cognizable. In addition to Mr. Neumann, Mr. Johnson brings this case against the City of Philadelphia ("the City") and Mr. James B. Zwolak, an attorney in the City of Philadelphia's Law Department, seeking a variety of types of relief after losing his home to a tax sale. After oral argument on the motion on March 30, 2009, the Court now grants Mr. Neumann's Motion to Dismiss.


The following facts are taken from the Complaint. Mr. Johnson was the owner of the premises at 4945-4951 Wakefield Street, Philadelphia, PA. On December 1, 2006, the City filed suit against Mr. Johnson for taxes owed on the property. At the same time, Mr. Johnson had a petition for review of the City's tax assessment pending before the City Tax Review Board's Office of Administrative Review ("OAR").

According to Mr. Johnson, he received no notice of the hearing on the civil action for taxes owed, and therefore did not attend. Thus, on January 31, 2007, the court entered a decree allowing the City to sell Mr. Johnson's property at a Sheriff's sale scheduled for February 21, 2007. Mr. Johnson received notice regarding the sale on February 3, 2007.

On February 16, 2007, Mr. Johnson contacted Mr. Zwolak, an attorney in the City's Law Department, about the notice of Sheriff's sale. Mr. Johnson claims that Mr. Zwolak told him that if he (Mr. Johnson) began making installment payments on the outstanding taxes, the property would be removed from the list of properties scheduled for Sheriff's sale.

Mr. Johnson claims to have begun making payments on that day; he lists as such payments a check dated February 16, 2007 in the amount of $5,000, a check dated March 20, 2007 in the amount of $8,000, a money order dated March 20, 2007 in the amount of $2,700, and a check dated April 17, 2007 in the amount of $7,000.

On June 7, 2007, the OAR held a hearing on Mr. Johnson's tax assessment, at which the penalties and interest assessed on the taxes owed were partially abated. (Mr. Johnson claims that he did not receive notice of this decision until June 27, 2009.) Notwithstanding Mr. Johnson's installment payments and the resolution of his dispute before the OAR, Mr. Johnson's property was listed on June 12, 2007 for Sheriff's sale to be held on June 20, 2007. At that sale Defendant Chad Neumann entered a successful bid for $2,100. Mr. Johnson claims that the fair market value of the property exceeds $400,000. Mr. Johnson alleges that on June 22, 2007 he received notice that his property had been sold.*fn1

Mr. Johnson claims that he was residing at his property at all times relevant and was renovating it when the City sold the property at a Sheriff's sale. Mr. Johnson alleges that Mr. Neumann knew that Mr. Johnson was living at the property and renovating it, that Mr. Neumann knew or should have known that Mr. Johnson was contesting the tax assessment, and that Mr. Neumann knew or should have known that the "true fair market value" of his property was $400,000. Mr. Johnson also claims that Mr. Neumann is threatening to evict him from the property. He asks the Court to 1) enjoin Mr. Neumann from evicting him; 2) enter judgment in the amount of $400,000 against Mr. Neumann and/or rescind the Deed conveying the property to Mr. Neumann; 3) restore his right to redemption; 4) vacate the January 31, 2007 state court order allowing the Sheriff's sale; and 5) order Defendants to re-convey the property to him.

This suit was originally filed on September 18, 2008 in Pennsylvania state court. Defendants Mr. Zwolak and the City removed the case to this Court, based on Mr. Johnson's federal due process claim against them. No objections to the removal were filed at that time, although Mr. Johnson filed a motion to remand on April 3, 2009. That motion is still pending before the Court.

On November 13, 2008, Mr. Neumann filed a motion to dismiss. As of January 9, 2009, Mr. Johnson had failed to respond. The Court ordered Mr. Johnson to file a response by January 20, 2009 or risk that the motion would be addressed as unopposed. On January 16, 2009, Mr. Johnson responded by filing an opposition to Mr. Neumann's motion. On January 26, 2009, Mr. Neumann filed a reply. The Court held an oral argument on March 30, 2009.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (quoting Conley, 355 U.S. at 47). While a complaint need not contain detailed factual allegations, the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (citations omitted). Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965 (citations omitted).

In making such a determination, courts "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Twombly, 127 S.Ct. at 1965 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"). The Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).The Court, however, need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing ...

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