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Angino v. Grubic

November 12, 2009

RICHARD C. ANGINO, ALICE K. ANGINO, AND ANGINO & ROVNER, P.C., PLAINTIFFS
v.
ROBERT P. GRUBIC, P.E., HERBERT, ROWLAND & GRUBIC, SUSQUEHANNA TOWNSHIP, JACQUELINE PATTON, WENDY JOHNSON, IRA SHAPIRO, DIANE BOWMAN, STANLEY R. LAWSON, SR., FRANK LYNCH, SEAN SANDERSON, TAMI WILSON, JOSHUA WILSON, FRANCIS R. KESSLER, GARY L. MYERS, FRANK CHIEBINKOW, MITCH KEMP, RICHARD LENKER, JOHN L. TAYLOR, THOMAS THORNTON, MILTON WATSON, AND KERRY WILSON DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a case brought by plaintiffs Richard C. Angino, Alice K. Angino, and Angino & Rovner, P.C. (collectively "plaintiffs"), pursuant to 42 U.S.C. § 1983.*fn1

Plaintiffs seek monetary and injunctive relief for governmental violations of their constitutional rights to due process and equal protection. Defendants are Susquehanna Township, various employees of Susquehanna Township,*fn2 (collectively "township defendants"), Robert P. Grubic, P.E., a professional engineer, and Herbert, Rowland & Grubic ("HRG"), an engineering firm. Presently before the court are: (1) the motion to dismiss (Doc. 40) filed by defendants Grubic and HRG, (2) the motion to dismiss (Doc. 42) filed by the township defendants, and (3) plaintiffs' motion (Doc. 55) to file a second amended complaint. For the reasons that follow, the motions to dismiss will be granted, and the motion to amend will be denied as moot.

I. Statement of Facts*fn3

Plaintiffs Richard C. and Alice K. Angino jointly own a parcel of realty with office buildings, located at 4503 North Front Street, Harrisburg, Susquehanna Township, Dauphin County, Pennsylvania. (Doc. 35 ¶ 11.) For 30 years, they have rented this property to the law firm of Angino & Rovner, P.C., also a plaintiff in this case. (Id.) In September of 2004, Hurricane Ivan caused flooding on plaintiffs' real estate, with waters from the rear or east side of the parcel, rather than from the front or west, as had occurred in prior floods. (Id. ¶ 45.) Thereafter, commencing in 2005, plaintiffs began to experience standing water in their rear parking lot. (Id. ¶ 36.) In April of 2005, plaintiffs contacted Susquehanna Township officials and held a meeting with individuals from the township and owners of neighboring properties, including United Water Pennsylvania, Inc. ("United Water") and Ciesco, Inc. ("Ciesco"). (Id. ¶ 37.) Plaintiffs were unaware of the precise source of the standing water at that time. (Id. ¶ 38.) On March 3, 2006, plaintiffs brought suit against United Water, Ciesco, and certain individuals doing business as 4507 Associates. (Id. ¶ 39.) As a result of discovery in that action in 2007 and January 2008 (id. ¶ 40), plaintiffs became aware of the following additional facts.

In 2002, Norman K. Hoffer ("Hoffer"), eventually doing business as 4507 Associates, had purchased and combined several parcels of real estate to construct an office building at 4507 North Front Street, Harrisburg, Pennsylvania. (Id. ¶ 12.) Approval of a subdivision and land development plan was a prerequisite to construction of the building. (Id. ¶ 13.) Eventually, Susquehanna Township accepted a plan proposed by Hoffer and Jeffrey W. Staub, which they had submitted on July 11, 2003. (Id. ¶ 30-33.) This plan indicated that the surface water runoff from 4507 North Front Street would be directed to a "five-acre 'low' 'depressed' 'wetland' area" to the south, which was actually plaintiffs' parcel at 4503 North Front Street. (Id. ¶ 32-34.)

Around the same time, United Water, which owns real estate located to the east of plaintiffs' parcel, had sought approval to fill in wetlands at or near the center of their property, which covers approximately seven acres. (Id. ¶ 35.) Susquehanna Township approved United Water's request. (Id.) However, United Water actually filled the eastern end of Miller Lane, (id.), in close proximity to plaintiff's property, (Doc. 47 ¶ 35).

Plaintiffs filed the instant suit on January 23, 2008. They claim that the township engaged in unconstitutional government activity with respect to approving the plans for the office building at 4507 North Front Street, which directs its stormwater onto plaintiffs' property, permitting the fill on United Water's land, which added to the flooding of plaintiffs' property, and failing to compel Hoffer and United Water to cease flooding plaintiffs' parcel and to develop a remediation plan to prevent future flooding. In their amended complaint, plaintiffs seek damages "in excess of $1,000,000" as well as injunctive relief. (Doc. 35 at 14.) Plaintiffs also claim that the outrageousness of defendants' conduct entitles them to "interest and punitive damages as well as counsel fees." (Id. ¶ 60.) Defendants filed motions to dismiss (Docs. 40, 42) pursuant to Rule 12(b)(6). The parties have fully briefed these issues, which are ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., --- F.3d ---, 2009 WL 3163553 (3d Cir. Oct. 5, 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868, 884 (2009) (citing Twombly, 550 U.S. at 556); see also FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). A claim to relief "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, --- U.S. at ---, 129 S.Ct. at 1949, 173 L.Ed. 2d at 884. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-that the 'pleader is entitled to relief.'" Iqbal, --- U.S. at ---, 129 S.Ct. at 1950, 173 L.Ed. 2d at 884 (quoting FED. R. CIV. P. 8(a)). Courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

Defendants*fn4 allege that plaintiffs' claims are time-barred. When presented with § 1983 claims, federal courts in Pennsylvania must apply Pennsylvania's two-year statute of limitations for personal injury actions. See 42 PA. CONS. STAT. § 5524; see also Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) ("In actions under 42 U.S.C. § 1983, federal courts apply the state's statute of limitations for personal injury."). In the context of a motion to dismiss under Rule 12(b)(6), a statute of limitations defense must be apparent on the face of the pleading.

See Benak v. Alliance Capital Mgmt., 435 F.3d 396, 400 n.14 (3d Cir. 2006); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir. 1994). The defense is apparent on the face of the complaint if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135 ...


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