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Cerino v. Towamensing Township

October 2, 2009


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



Presently before this Court is Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. 7) for failure to state a claim under Rule 12(b)(6). Fed. R. Civ. Pro. 12(b)(6). Defendants' motion will be granted because of municipal immunity and the failure to state actionable claims. This Court has jurisdiction over the federal causes of action pursuant to 28 U.S.C. § 1331 (federal question), and has jurisdiction over the remaining state causes of action pursuant to 28 U.S.C. § 1367 (supplemental).


The facts alleged in Plaintiff's Complaint are as follows: Plaintiff Costanzo Cerino ("Cerino") is the owner and operator of a dog kennel business located in the Township of Towamensing, Carbon County, Pennsylvania. (Compl. ¶ 1.) Defendants Ricky Green, Gary Anthony, Rodney George, Wilbert Beers, Edward Reese, and Penny Kleintop are members of the Towamensing Township Board of Supervisors. (Id. ¶ 3.) The Towamensing defendants also include the Zoning Board and the Township as a whole (collectively all defendants as "Towamensing.") (Id.)

Cerino purchased the property at issue on or about January 24, 2002. (Compl. ¶ 4.) At the time, the property was zoned Agricultural ("AG"). (Id. ¶ 18.) On or about February 25, 2002, the Towamensing Zoning Officer issued a building permit to Cerino authorizing him to construct a dog kennel structure. (Id. ¶ 7.) In the spring of 2002 the building was erected, including thirty-six (36) dog runs, all in compliance with Towamensing's requirements. (Id. ¶ 12.) Cerino contacted the Towamensing Zoning Officer, at that time Wayne Knirnschild, and was informed that no additional permits were needed to build additional runs. (Id. ¶ 15.) By the end of 2002, Cerino had erected fifty-five (55) dog runs on the property. (Compl. ¶ 14.) Cerino again consulted Towamensing in 2003 before constructing an additional thirty (30) runs, brining the total up to eighty-five (85). (Id. ¶ 16.)

On June 3, 2004, the Towamensing Board re-designated all AG districts as rural conservation ("RC"). (Compl. ¶ 19.) On December 27, 2004, the Board made kennels a conditional use in the RC districts subject to the general conditions contained in Sections 1007 and 1008, while all other uses in other district were unaffected. (Id. ¶ 20.) Towamensing intentionally avoided informing Cerino of the meetings leading to the zoning change, because they knew Cerino would be interested in attending and would voice objections. (Id. ¶ 44.) The zoning amendments were aimed intentionally at Cerino's dog kennel enterprise. (Id. ¶ 45.) Up until that time, kennels were permitted in RC districts just as they had been under AG districts. (Id. ¶ 27.) The conditions imposed a three hundred foot set back from any property line, structures housing dogs, landscaping for visual screening and buffering, a solid barrier at least six (6) feet high around the perimeter of all building structures and enclosures housing dogs, a requirement that all dogs be brought into an enclosure from 8:00 pm until 7:00 am, a requirement that all excrement be located not less than three hundred (300) feet from any property line and one hundred (100) feet from all water sources, and a requirement for a land development plan.. (Id. ¶ 21.)

On or about January 10, 2004 Cerino received an enforcement notice that he was in violation of the zoning requirements. (Compl. ¶ 23.) Cerino received a second notice on June 8, 2005. (Id. ¶ 30.) On or about July 7, 2005, Cerino appealed the second notice to the Towamensing Board. (Id. ¶ 31.) Cerino was only aware of the re-zoning after he received the second notice. (Id. ¶ 38.) On June 15, 2006, the Towamensing Board held a hearing and denied the appeal for both enforcement notices. (Id. ¶ 32.) The Board concluded that only twenty-nine (29) runs were in conformity with the zoning requirements. (Id.) Cerino filed a timely appeal to the Court of Common Pleas of Carbon County, arguing that the ordinance making kennels a conditional use constituted illegal spot zoning and was an ex post facto application of an ordinance against Cerino. (Compl. ¶ 33.) The Carbon County court affirmed the decision of the Towamensing Board. (Id. ¶ 35.) After a subsequent appeal, the Pennsylvania Commonwealth Court affirmed the decision of the Carbon County court on October 10, 2007. (Id. ¶ 37.) Towamensing instituted an enforcement action against Cerino in the Court of Common Pleas on February 26, 2009. (Id. ¶ 51.)

On April 30, 2009, Plaintiff filed this action in the District Court for the Middle District of Pennsylvania. (Doc. 1.) Towamensing filed a motion to dismiss on July 6, 2009. (Doc. 7.) Both parties have submitted briefs, and the motion is now ripe for disposition.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. FED. R. CIV. PRO. 12(b)(6). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

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). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


Cerino's Complaint contains seven (7) counts. Count I alleges violations of the Fourteenth Amendment, including substantive due process, procedural due process, and equal protection violations. Count II alleges a conspiracy to deprive constitutional rights under § 1985. Count III allegesa conspiracy to deprive without due process of law under § 1983. Count IV alleges a failure to prevent constitutional harm under § 1986. Count V alleges declaratory judgment is appropriate. Count VI alleges tortious interference with prospective contractual relationships. Count VII alleges that estoppel is appropriate. Defendants raise numerous arguments, ultimately arguing each count should be dismissed.*fn1

For the reasons stated below, Defendants' Motion to Dismiss will be granted.

I. Immunity Issues

A. Absolute Legislative Immunity

Defendants' claim they are entitled to legislative immunity for their zoning decisions on behalf of Towamensing Township. "Absolute legislative immunity attaches to all actions taken 'in the sphere of legitimate legislative activity.'" Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). "Legislative immunity shields from suit not only legislators, but also public officials outside of the legislative branch when they perform legislative functions." Baraka v. McGreevey, 481 F.3d 187, 195-96 (3d Cir. 2007) (citing id.). There is a two-part test to determine whether actions are to be regarded as legislative for immunity purposes: (1) the action must be "substantively" legislative, which requires that it involve a policy-making or line-drawing decision; and (2) the action must be "procedurally" ...

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