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Gilarno v. Borough of Freedom

April 22, 2010

HARRY GILARNO INDIVIDUALLY AND DOING BUSINESS AS GILARNO'S AUTO REPAIR INC. ALSO KNOWN AS GILARNO'S AUTO REPAIR, PLAINTIFF,
v.
THE BOROUGH OF FREEDOM, THE BOROUGH COUNCIL OF THE BORO OF FREEDOM, JOHN V. KAERCHER, VICTORIA H. GRECO, JAQUELINE GOLLETTI, DARL ALLM AN, DEBORAH DEDOM INICUS INDIVIDUALLY AND IN THEIR CAPACITY AS COUNCIL PERSONS AND DONALD ZAHN INDIVIDUALLY AND IN HIS CAPACITY AS M AYOR OF THE BOROUGH OF FREEDOM DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Pending before the Court is the MOTION TO DISMISS (Document No. 4), with brief in support. Plaintiff filed a Response in Opposition to the Motion to Dismiss (Document No. 6). Defendants then filed a MOTION TO STRIKE PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (Document No. 9). Subsequently, Plaintiff filed a First Amended Memorandum of Law Against All Defendants' Action to Dismiss (Document No. 10). Accordingly, the MOTION TO STRIKE PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (Document No. 9) will be DENIED AS MOOT. Defendants have filed a Reply Brief (Document No. 12) and the Motion to Dismiss is now fully briefed and ripe for disposition.

Factual and Procedural Background

This case arises out of unsuccessful efforts by local officials to enforce an ordinance regarding "nuisance vehicles." Since 1993, Plaintiff Gilarno has owned and operated an auto repair and towing business-- the only such business in the Borough of Freedom, Pennsylvania (the "Borough"). The individual Defendants are various local elected officials of the Borough.

Gilarno had been the exclusive provider of towing services for the Borough from 1993-2007. The Complaint alleges that he was publicly critical of the Mayor and council members on numerous occasions, which led to a well-known personal animus between the parties. On August 28, 2007, the Borough solicitor sent Gilarno a Notice that he was in violation of Ordinance 197-3(B) (Permits for the Storage of Motor Vehicle Nuisances), because several motor vehicles were stored outside of his business building and Gilarno's property did not have an appropriate fence. The letter stated that if the conditions were not remedied within ten days, Gilarno would face fines of $300 per day/per violation. In 2008, the Borough stopped using Gilarno for repair and towing services.

The applicable Ordinance provisions were amended on several occasions and are attached to the Complaint as Exhibit D (collectively, the "Ordinance"). As relevant here, the Ordinance defines the violation as a summary offense and authorizes the Borough to enter the premises to take corrective measures. Importantly, the Ordinance also states:

Section 8. Remedies not Mutually Exclusive.

The remedies provided herein for the enforcement of this Ordinance or any remedy provided by law, shall not be deemed mutually exclusive; rather they may be employed simultaneously or consecutively at the option of the Borough of Freedom.

On October 16, 2007, the Chief of Police issued a non-traffic criminal citation to Gilarno. On October 24, 2007, the Borough solicitor issued a memorandum to various Borough employees and officials which directed them not to communicate with Gilarno on the topic of the pending litigation. Complaint Exhibit F. On February 14, 2008, a police officer was suspended for, among other things, disregarding this directive. On February 20, 2008, the directive was modified to clarify that communications with Gilarno in his role as fire chief were permitted.

Magisterial District Judge Edward Howe conducted a hearing on February 7, 2008, and found Gilarno "Not Guilty" of violating the Ordinance. The Borough did not file an appeal. Instead, on March 21, 2008, the Borough filed a civil complaint in equity against Gilarno in the Court of Common Pleas of Beaver County, Pennsylvania (the "Equity Action"). The Equity Action contained the same allegations as the earlier criminal citation but sought a Court order that required Gilarno to erect a fence around his property, in addition to penalties under the ordinance. On July 9, 2009, a judge of the Court of Common Pleas granted summary judgment in favor of Gilarno, on the ground that the Borough had failed to specifically identify the vehicles which allegedly constituted the nuisance. This litigation followed.

Gilarno now asserts claims against the Borough and the individual Defendants under the Dragonetti Act, 42 Pa.C.S.A. § 8351, for Wrongful Use of Civil Proceedings. Plaintiff also asserts claims under 42 U.S.C. § 1983, for alleged violations of his due process, First Amendment and Equal Protection rights.*fn1

Standard of Review

A motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) challenges the legal sufficiency of the Complaint filed by Plaintiff. The United States Supreme Court has held that "[a] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1950 (2009) (emphasis added).

However, nothing in Twombly or Iqbal has changed the other pleading standards for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). That is, the Supreme Court did not impose a new, heightened pleading requirement, but reaffirmed that FED. R. CIV. P. 8 requires only a short, plain statement of the claim showing that the pleader is entitled to relief, not "detailed factual allegations." See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (citing Twombly, 550 U.S. at 552-53). Additionally, the Supreme Court did not abolish the FED. R. CIV. P. 12(b)(6) requirement that "the facts alleged must be taken as true and 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." Id. (citing Twombly, 550 U.S. at 553).

Generally, "to the extent that [a] court considers evidence beyond the complaint in deciding a FED. R. CIV. P. 12(b)(6) motion, it is converted to a motion for summary judgment." Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999). However, in resolving a FED. R. CIV. P. 12(b)(6) motion to dismiss, a court may look beyond the complaint to matters of public record, including court files and records, decisions of government agencies and administrative bodies, and documents referenced in the complaint or which are essential to a plaintiff's claim and are attached to either the Complaint or the defendant's motion. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

Legal Analysis

Defendants contend that the Complaint should be dismissed in its entirety. The Court will address each cause of action ...


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