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M&M Stone Co. v. Hornberger

September 30, 2009


The opinion of the court was delivered by: James Knoll Gardner, United States District Judge


This matter is before the court on four motions of defendants to dismiss the Amended Complaint: (1) DEP Defendants' Motion to Dismiss the Amended Complaint; (2) Defendant Telford Borough Authority and Defendant Mark Fournier's Motion to Dismiss Plaintiff's Amended Complaint; (3) Motion of Spotts Stevens & McCoy, Inc. and Richard Schloesser to Dismiss Plaintiff's Amended Complaint; and (4) Defendants Delaware River Basin Commission and William J. Muszynski's Motion to Dismiss Plaintiff's Amended Complaint. Upon consideration of the briefs of the parties and for the reasons articulated in this Opinion, I grant defendants' motions to dismiss, and dismiss plaintiff's Amended Complaint in its entirety.

Specifically, plaintiff's claims against defendant Telford Borough Authority, and against defendants Roger J. Hornberger, J. Scott Roberts, Michael D. Hill, Keith A. Laslow, and Martin Sokolow in their official capacities, are dismissed because they are barred by claim preclusion. Plaintiff's constitutional claims under 42 U.S.C. § 1983 for violations of substantive due process (Count I), Equal Protection (Count II), and procedural due process (Count III), and for First Amendment retaliation (Count IV), are dismissed because issue preclusion prevents plaintiff from being able to state claims upon which relief can be granted. Finally, I decline to exercise supplemental jurisdiction over plaintiff's state law negligence claim (Count V), and therefore dismiss it as well.


Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiff's pendent state law claim. See 28 U.S.C. § 1367.


Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in West Rockhill Township, Bucks County, Pennsylvania, which is located within this judicial district.


A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Ordinarily, a court's review of a motion to dismiss is limited to the contents of the complaint, including any attached exhibits. See Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). However, evidence beyond a complaint which the court may consider in deciding a 12(b)(6) motion to dismiss includes public records (including court files, orders, records and letters of official actions or decisions of government agencies and administrative bodies), documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 nn.1-2 (3d Cir. 1995).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2). That rule requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, 167 L.Ed.2d at 940.

Additionally, in determining the sufficiency of a complaint, the court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). "[A] complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231. Nevertheless, "Rule 8(a)(2) requires a 'showing' rather than a blanket assertion of an entitlement to relief.... [W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232.

In considering whether the complaint survives a motion to dismiss, both the District Court and the Court of Appeals review whether it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969, 167 L.Ed.2d at 945 (emphasis in original); Haspel v. State Farm Mutual Auto Insurance Company, 241 Fed.Appx. 837, 839 (3d Cir. 2007).

The Third Circuit has explained that the "Twombly formulation of the pleading standard can be summed up thus: stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element. This... simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (internal punctuation omitted).


On November 15, 2005, the Commonwealth of Pennsylvania, Department of Environmental Protection ("DEP" or "Department") issued two compliance orders to plaintiff M&M Stone Co. ("M&M Stone"). These orders required M&M Stone to cease all mining activities at its Telford Quarry, and to restore or replace the water supplies that it allegedly affected. The DEP issued a third compliance order on March 9, 2006.

On December 13, 2005, plaintiff appealed the first administrative order to the Commonwealth of Pennsylvania Environmental Hearing Board ("EHB" or "Board"). Plaintiff's appeals of DEP's other orders were subsequently incorporated into this appeal.

Plaintiff commenced this action by filing an eight-count Civil Action Complaint on November 14, 2007 ("original complaint"). Plaintiff's original complaint sought damages and injunctive relief against the DEP, the Telford Borough Authority ("TBA"), Spotts Stevens & McCoy, Inc. ("SSM"), the Delaware River Basin Commission ("DRBC"), and various individuals associated with these defendant entities.

On November 26, 2007, this case was reassigned from my colleague United States District Judge Thomas M. Golden to me.

The Board issued its Adjudication on January 31, 2008.*fn1

The Board dismissed M&M Stone's appeals, concluding that the DEP "satisfied its burden of proving that the two November 15, 2005 Orders and the March 9, 2006 Order were reasonable and in accordance with the law in all respects." M&M Stone I at 52.

Plaintiff filed its Petition for Review of the Board's decision on February 29, 2008.

On September 29, 2008, this court issued an Order and Opinion granting in part and denying in part defendants' motions to dismiss the original complaint.*fn2

The Commonwealth Court of Pennsylvania issued its Memorandum Opinion on M&M Stone's appeal from the EHB on October 17, 2008.*fn3 The Commonwealth Court "agree[d] with the Board's determination that the cessation orders were reasonable and in accordance with the law in all respects" and affirmed "the order of the Board to dismiss M&M's appeals of the Department's orders". M&M Stone III at 21.

On October 20, 2008, plaintiff filed its five-count Amended Complaint against Roger J. Hornberger, J. Scott Roberts, Michael D. Hill, Keith A. Laslow, and Martin Sokolow in their individual and official capacities (collectively "DEP defendants"); the TBA and Mark D. Fournier (collectively "TBA defendants"); SSM and Richard M. Schloesser (collectively "SSM defendants"); and the DRBC and William J. Muszynski (collectively "DRBC defendants").

Count I of the Amended Complaint is brought against all defendants under 42 U.S.C. § 1983 and alleges violations of plaintiff's substantive due process rights.

Count II is brought pursuant to 42 U.S.C. § 1983 and claims that the DEP defendants in their individual capacities, defendant Fournier, the SSM defendants, and defendant Muszynski violated plaintiff's right to equal protection of the law.

In Count III, plaintiff asserts a claim for violation of its procedural due process rights under 42 U.S.C. § 1983 against the DEP defendants in their individual capacities, defendant Fournier, the SSM defendants, and defendant Muszynski.

Count IV asserts a First Amendment retaliation claim under 42 U.S.C. § 1983 against the DEP defendants in their individual capacities and defendant Fournier.

Finally, in Count V plaintiff brings a state law negligence claim against all defendants.

On December 4, 2008, the Commonwealth Court denied M&M Stone's application for reconsideration/reargument or, in the alternative, en banc reargument.

M&M Stone filed a petition for allowance of appeal to the Supreme Court of Pennsylvania on January 5, 2009, which petition is still pending.

On September 8, 2009, I dismissed as moot the DRBC defendants' motion for partial reconsideration of my decision in M&M Stone II because plaintiff's Amended Complaint superseded its original complaint, mooting the motion.


Plaintiff alleges the following facts in its Amended Complaint, which I must accept as true for purposes of the motions to dismiss. However, issue preclusion bars "successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination." Nationwide Mutual Fire Insurance Company v. Hamilton, Inc., 571 F.3d 299, 310 (3d Cir. 2009) (quoting New Hampshire v. Maine, 532 U.S. 742, 748-749, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968, 977 (2001)). Accordingly, issue preclusion bars plaintiff from arguing that the facts differ from those found in the prior state action. See, e.g., Evans v. Pearson Enterprises, Incorporated, 434 F.3d 839, 851-852 (6th Cir. 2006); Jacobs v. Law Offices of Leonard N. Flamm, 2005 WL 1844642, *3 (S.D.N.Y. July 29, 2005); Mosley v. Delaware River Port Authority, 2000 U.S.Dist. LEXIS 22402, *17-19 (D.N.J. August 7, 2000).

Plaintiff M&M Stone owns and previously operated a quarry in West Rockhill Township, Pennsylvania operated for the production of construction and architectural stone and known as the Telford Quarry. (Amended Complaint at paragraph 20.)

The DEP defendants regulate quarry operations and water quality in Pennsylvania. (Id. at 22.) Defendant TBA supplies drinking water to Telford Borough residences and businesses and to various neighboring communities. (Id. at 23.) TBA owns and operates several deep wells encircling the Telford Quarry, including TBA Well Nos. 4, 5, and 7. (Id. at 30.) Defendant DRBC regulates water withdrawals in the Delaware River watershed, which includes the Telford Quarry and the well fields and service area of Telford Borough. (Id. at 21.)

Arsenic in TBA Well No. 4

By June 2000, the TBA defendants knew that arsenic levels in their public water supply from TBA Well No. 4 exceeded new federal arsenic standards scheduled to take effect in January 2006, and that they would therefore likely have to obtain a new water supply or build an arsenic treatment facility by January 2006. (Id. at 24, 41, and 42.) These projects could cost millions of dollars. (Id. at 42 and 44.)

Even though the DEP defendants knew that the TBA could not lawfully supply water from TBA Well No. 4 after January 22, 2006, the DEP did nothing to require the removal of the well from service until at least July 2006. (Id. at 126.) The TBA pumped public water with unacceptable levels of arsenic for approximately six months, with defendants' knowledge. (Id. at 127 and 131.) Even though TBA Well No. 4 exceeded the federal arsenic standard, TBA was advised that it could continue to pump the well until at least December 2006, and possibly January 2007, when the test results on an official sample from the well became available. (Id. at 146.)

Well Dewaterings

When defendant TBA put TBA Well Nos. 5 and 7 into service, and thereafter when it lowered the pump in TBA Well No. 4, neighboring private wells and water supplies were immediately adversely impacted. (Id. at 31.)

Previously, the DRBC concluded that the TBA was responsible for certain of these private impacts and required the TBA to repair them. (Id. at 32.) The TBA settled claims with private well owners because of adverse affects caused by TBA Well Nos. 4, 5, and/or 7. (Id. at 33.) All defendants knew or subsequently learned that the TBA was adversely affecting private wells. (Id. at 34.) The Telford Quarry did not cause these private well dewaterings.*fn4 Nevertheless, in 1999 and 2000, the SSM defendants and the TBA ...

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