Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robert and Winifred Bigham (Husband and Wife), Allyson Pallay v. Wharton Township

October 27, 2011


The opinion of the court was delivered by: Arthur J. Schwab United States District Judge


Plaintiffs, a husband and wife and their two children, brought this lawsuit against the municipality and several individuals claiming violations of their Fourth and Fourteenth Amendment rights. Plaintiffs‟ First Amended Complaint alleges that some of the Defendants lost a civil lawsuit regarding the boundary lines of Plaintiffs‟ 15.5 acres of real property ("the Property"). Plaintiffs further allege that after losing the boundary dispute, all of the Defendants maliciously engaged in prosecutorial acts*fn1 which amount to abuse of legal process and which breached Plaintiffs‟: (1) Fourth Amendment rights, privileges, and immunities, and (2) Fourteenth Amendment rights to due process. In addition, Plaintiffs claim Defendants violated their substantive due process rights to peaceable ownership, possession, use, enjoyment, and control of the Property.

Defendants Wharton Township and Means filed a Partial Motion to Dismiss the First Amended Complaint contending that Plaintiffs failed to allege facts that could support a feasible claim for the violation of their Fourteenth Amendment substantive due process rights. Doc. no. 27. Defendant Jordan filed a Motion to Dismiss the Amended Complaint in its entirety. Doc. no. 37. Plaintiffs opposed each Motion. Doc. nos. 33 and 42.

For the reasons set forth at length herein, Defendants Wharton Township‟s and Means‟ Partial Motion to Dismiss shall be denied. Defendant Jordan‟s Motion to Dismiss shall also be denied. Each Motion will be addressed in detail below.


In considering a Rule 12(b)(6) motion, federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only ""a short and plain statement of the claim showing that the pleader is entitled to relief,‟ in order to "give the defendant fair notice of what the .claim is and the grounds on which it rests.‟" Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

To survive a Motion to Dismiss, a party must allege sufficient facts that, if accepted as true, state "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly 550 U.S. at 570). A claim has facial plausibility when a party pleads facts that allow the Court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Twombly 550 U.S. at 555). In deciding a Motion to Dismiss, the Court must determine whether the Complaint or Answer "pleads factual content that allows the court to draw the reasonable inference that the defendant (or plaintiff) is liable for the misconduct alleged." Pennsyl. Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010) (citing Iqbal, 129 S.Ct. at 1949). "While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations." Id.; See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11.

As recently discussed by the United States Court of Appeals for the Third Circuit, a District Court must take three steps to determine the sufficiency of a complaint:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth.‟ Id. at 1950. Third, "whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.‟ Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

When determining whether a party has presented facts sufficient to show a "plausible claim for relief," the Court must consider the specific nature of the claim presented and the facts pled to substantial that claim. For example, in Fowler, a case predicated upon a violation of the Rehabilitation Act, the Court of Appeals determined that "[t]he complaint pleads how, when, and where [the defendant] allegedly discriminated against Fowler." 578 F.3d at 212. The Court, while noting that the Complaint was "not as rich with detail as some might prefer," the "how, when, and where" provided by the plaintiff was sufficient to establish plausibility. Id. at 211-12.

The facts alleged in the Complaint or Answer, but not the legal conclusions, must be taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. The Court may not dismiss a Complaint or Counterclaim merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Id. at 556, 563 n.8. Instead, the Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint or counterclaim that provides adequate facts to establish "how, when, and where" will survive a Motion to Dismiss. Fowler, 578 F.3d at 212; See Guirguis v. Movers Specialty Services, Inc., 346 Fed.Appx. 774, 776 (3d Cir. 2009).

In short, the Motion to Dismiss should not be granted if a party alleges facts which could, if established at trial, entitle him to relief. Id. at 563, n.8.


This "Hatfield-McCoy case" contains many well-pled facts, but only those relevant to Defendants‟ respective Motions to Dismiss will be discussed infra.

The Amended Complaint indicates that Plaintiffs Allyson Pallay and Bart Bigham (brother and sister), are two of the four owners of the Property (hereinafter "Plaintiff-Owners") which lies in Wharton Township and at the heart of Plaintiffs‟ lawsuit. Doc. no. 23 at ¶ 21. These two Plaintiff-Owners do not reside on or near the Property at issue.*fn2 Id. at ¶ 22. Plaintiffs Robert and Winifred Bigham have control, possession, and use of the Property by virtue of agreement, authorization, and power of attorney of the Plaintiff-Owners and the other two owners. Id. at ¶ 23. Plaintiffs Robert and Winifred Bigham pay the property tax on the Property. Id. at ¶ 26.

The Property‟s boundary lines had been the subject of a civil lawsuit brought in Pennsylvania‟s Court of Common Pleas of Fayette County by Plaintiffs Robert and Winifred Bigham against Defendant Livengood‟s daughter and son-in law, who owned a parcel of land adjacent to the Property. Id. at ¶¶ 31, 33. Plaintiffs Robert and Winifred Bigham allegedly brought the boundary line lawsuit to address alleged ongoing trespasses on the Property. Id. at ¶¶ 31-33. During the pendency of the boundary line lawsuit, a Wharton Township supervisor (who is not a party to this lawsuit) testified that a portion of the Property belonged to Defendant Wharton Township. Id. at ¶¶ 35-36. In 2006, following a civil trial in the Fayette County Court, Judge Wagner determined that no portion of the Property belonged to Defendant Wharton Township and entered an Order enjoining Plaintiffs‟ neighbors from trespassing on the Property. Id. at ¶¶ 37-38.

Plaintiffs‟ First Amended Complaint alleges that in 2009, Defendants engaged in various intentional and prosecutorial acts -- such as their initiation and pursuit of criminal and motor vehicle code violations against Plaintiff Robert Bigham -- all of which lacked a legal basis. Id. at ¶¶ 38, 40-42, 55, 59-65, 69, 73-74, 78, 80, 83, 88, 90, 93-94, 99-101. Plaintiffs also allege that Defendants initiated and pursued these violations maliciously and solely to advance the interests of Defendant Wharton Township, its supervisor, Defendant James Means, and Plaintiffs‟ neighboring property owners, in order to gain access to the Property‟s 15.5 acres. Id.

Plaintiffs specifically allege that Defendant Wharton, through its supervisors and employees, repeatedly trespassed on the Property and permitted others to do so. Id. at ¶¶ 40-42. Plaintiffs further allege that on more than one occasion, Defendant Jordan, a Pennsylvania State Police Trooper, intentionally cited and illegally arrested Plaintiff Robert Bigham for various infractions directly related to the Property. Id. at ¶¶ 55, 59, 64, 73-74, 82, 93-94. Defendant Means, a supervisor for Defendant Wharton Township, allegedly provided perjured testimony concerning the boundaries of the Property during the alleged illegal prosecution of Plaintiff Robert Bigham. Id. at ¶¶ 67-69. Defendant Livengood, the father of one of the neighboring property owners, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.