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Gilarno v. Borough of Freedom

September 8, 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 are the MOTION FOR RECONSIDERATION OF OPINION AND ORDER DATED APRIL 22, 2010 IN CONJUNCTION WITH PLAINTIFF'S FIRST AMENDED COMPLAINT (Document No. 14) filed by Plaintiff and the MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (Document No. 17) filed by Defendants. The motions have been thoroughly briefed (Document Nos. 16, 18, 19, 20, 21, 23) and are ripe for disposition.

Factual and Procedural Background

On April 22, 2010, the Court issued a thorough Memorandum Opinion and Order which granted Defendants' motion to dismiss the original complaint filed by Gilarno. The Amended Complaint contains substantially similar factual allegations. In summary, Plaintiff Gilarno has owned and operated an auto repair and towing business since 1993 -- 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 until some time in 2007." Amended Complaint ¶ 24. Gilarno was publicly critical of the Mayor and council members in December 2005 and early 2006. In 2005, Gilarno criticized the decision to reinstate a Borough police force. In February 2006, in his role as Fire Chief, Gilarno opposed a plan to create a doorway in the wall of the fire station to permit access from the police department to the fire station restrooms. Amended Complaint ¶ 32. In February 2006, Gilarno confronted the Mayor regarding the removal of his company as a vendor to work on police vehicles. Amended Complaint ¶ 35. In August 2006 and November 2007, there were agreements to again appoint Gilarno to repair and inspect Borough vehicles, but they failed to materialize. Amended Complaint ¶¶ 40, 43. In Amended Complaint ¶ 49, Gilarno avers: "Since January of 2006, the Plaintiff has been denied the opportunity to do repair/maintenance work on Borough vehicles as well as being called to do any towing in the Borough because of the direct acts of the Borough Council and Mayor."

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 February 2008, the Borough ratified a phone vote to cease using Gilarno for repair and towing services. Amended Complaint ¶ 47. Gilarno has attached the relevant meeting minutes as exhibits to the Amended Complaint.

The applicable Ordinance provisions were amended on several occasions and are attached to the Amended Complaint (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. The Court granted Defendants' motion to dismiss the original complaint in its entirety, although it granted Plaintiff leave to file an amended complaint.

In the Amended Complaint, Gilarno re-asserts his 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 First Amendment Retaliation and violations of his Equal Protection rights. Defendants have renewed their motion to dismiss the Amended Complaint in toto.

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 ...


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