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Zaimes v. Cammerino

April 1, 2010


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



Presently before the Court are Defendant Anthony Waldron's Motion to Dismiss (Doc. 4) and the remaining Defendants' Motion to Dismiss (Doc. 3). These motions will be granted in part and denied in part as discussed below. This Court has jurisdiction over the federal causes of action pursuant to 28 U.S.C. § 1331 (federal question).


The facts alleged in Plaintiff's Complaint are as follows: Plaintiff Dimitri Zaimes ("Zaimes") is the owner of an improved property known as "Two River Junction" located in Lackawaxen Township, Pennsylvania ("Two River Junction"). (Compl. ¶ 1, Doc. 1.) Defendant Lackawaxen Township is a municipal corporation organized under the laws of Pennsylvania. (Compl. ¶ 9.) Defendants Jeffrey Cammerino ("Cammerino"), Todd Klikus, and Richard Tussell were at all relevant times employed as township building inspectors or zoning officers. (Compl. ¶¶ 2, 3, 7.) Defendants Richard Krotcha, Fred Gelderman, and Brian Stuart were at all relevant times township supervisors. (Compl. ¶¶ 4-6.) Defendant Anthony Waldron, III, ("Waldron") was at all relevant times the township solicitor. (Compl. ¶ 8.)

On June 2, 2006, Two River Junction was destroyed by fire. (Compl. ¶ 12.) Shortly thereafter, Two River Junction suffered foundation damage as a result of flooding. (Compl. ¶ 12.) Before the destruction, Two River Junction was a one floor building used as a retail establishment with a restaurant, deli, and sporting good store. (Compl. ¶ 13.) The basement also provided living quarters. (Compl. ¶ 13.) In September 2006, Zaimes filed for a conditional use permit to restore Two River Junction to its traditional uses, except that Zaimes planned to replace the basement with a slab and to add a second floor with living quarters and office space. (Compl. ¶ 14.) The permit was granted in November 2006 stating "the second floor shall be used for residential and storage use only, personal office." (Compl. ¶ 14-15.) After receiving the permit, Zaimes began construction on the property under the supervision of Lackawaxen Township building inspector Lee Hummel. (Compl. ¶ 17.) At all relevant times, Zaimes's plans and construction were found to comply fully with township requirements. (Compl. ¶ 18.) In the spring of 2007, Zaimes needed to make plans for his father's care, which included creating a separate living space for him and an additional room for full-time, live-in care giver on the second floor of Two River Junction. (Compl. ¶ 19.) Zaimes specifically reviewed the construction of this additional space with Lee Hummel. (Compl. ¶ 21.) Anticipating a time when his father would no longer need the additional space, Zaimes submitted a conditional use application on June 19, 2007, to operate a bed and breakfast on the second floor of Two River Junction. (Compl. ¶ 22.) This application was denied. (Compl. ¶ 22.)

On October 9, 2007, Waldron and Cammerino contacted Zaimes by letter alleging that he was in violation of Section 702.1 of the Lackawaxen Zoning Ordinance for constructing partitions on the second floor for use as a bed and breakfast. (Compl. ¶ 23.) At that time, "defendants" knew that Zaimes had no intention of running a bed and breakfast and the claim of a zoning violation was without merit. (Compl. ¶ 23-24.) This letter, serving as notice of the zoning violation, demanded that Zaimes remove the partitions and other improvements, such as plumbing and electric, within thirty (30) days. (Compl. ¶ 24.) On November 15, 2007, Waldron and Tussel issued a Stop Work Order Notice to Zaimes for allegedly undertaking construction of a bed and breakfast. (Compl. ¶ 25.)

Zaimes appealed the notice to the Lackawaxen Zoning Hearing Board and a hearing was scheduled December 13, 2007. (Compl. ¶ 26.) "Anticipating that the zoning hearing board would sustain plaintiff's appeal . . . defendants took steps to stall and avoid the hearing on plaintiff's appeals by engaging in bad faith negotiations with plaintiff's counsel." (Compl. ¶ 28.) As a result of those negotiations, Zaimes believed that an agreement had been reached concerning the notices of October 9 and November 15. (Compl. ¶ 29.) By a letter dated February 15, 2008, the Defendants expressly reneged on the agreement. (Compl. ¶ 32.) In addition, they alleged new violations that had not been previously raised. (Compl. ¶ 32.) On February 21, 2008, Waldron filed an action for injunctive relief to stop construction pending the outcome of Zaimes's appeals. (Compl. ¶ 33.) On March 18, 2008, prior to the scheduled hearing for the preliminary injunction, Defendants agreed to lift the stop work orders but continued to threaten Zaimes by making frivolous objections to the construction. (Compl. ¶ 34.) At all relevant times, Defendants were aware that their dilatory and bad faith conduct impaired Zaimes's ability to complete the construction and drove him to the brink of bankruptcy. (Compl. ¶ 31.) Defendants' actions were the result of deliberate decisions with the intent to injure Zaimes and deny him the use and enjoyment of his property. (Compl. ¶ 42.)

Zaimes filed a complaint in the United States District Court for the Middle District of Pennsylvania on October 9, 2009. (Doc. 1.) All Defendants, except for Waldron, filed a motion to dismiss on February 2, 2010. (Doc. 3.) Defendant Waldron filed a separate motion to dismiss the following day. (Doc. 4.) All parties have submitted the required briefs, and the motion is now ripe for disposition.*fn1


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. P. 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 ...

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