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Frank Nellom, Frank Nellom : & Co v. Darby Borough


December 13, 2012


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


Plaintiff, proceeding pro se , has filed the present suit alleging that Darby Borough and certain Darby Borough police officers (collectively "Darby Defendants") violated his constitutional rights under the First and Fourteenth Amendments to the Constitution, violated his rights under the Statute of Frauds, and engaged in a conspiracy with private citizen Anthony Hernandez to deprive him of his civil rights. *fn1 Before the Court is Plaintiff's Motion for a Preliminary Injunction, Defendants' Motion to Dismiss, and Plaintiff's Motion for Summary Judgment.


The Complaint alleges the following facts. On July 3, 2012, Plaintiff called the Darby Borough police department and asked the police department to remove a man trespassing on Plaintiff's property at 516 Keystone Avenue. When police arrived on the scene, the alleged trespasser, Anthony Hernandez, informed officers that he was Plaintiff's tenant and stated that he and Plaintiff were involved in a landlord-tenant dispute. Specifically, the police report notes that Hernandez originally paid Plaintiff $100 and was allowed to move in to 516 Keystone Avenue. Later, Hernandez said, Plaintiff orally agreed to allow Hernandez to live there rent free in exchange for doing work on the property. Plaintiff did not deny entering into such agreements with Hernandez, but rather told the police that there was no "legal agreement" in place, that he considered Hernandez to be a trespasser in the absence of a written lease, and that he wanted him removed.

The officers advised Plaintiff to file a complaint in landlord-tenant court to pursue a proper eviction, and declined to remove Hernandez from the property.

Later the same day, Hernandez called the police and reported that Plaintiff had stolen his computer and Xbox video game after officers left the premises. An officer went to 516 Keystone, spoke to Hernandez about the alleged theft, knocked on Plaintiff's door and received no response, and then filed a written report documenting the theft complaint.


A. Motion to Dismiss

The Court will begin by addressing Darby Defendants' Motion to Dismiss. Dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" does not possess enough substance to show that plaintiff is entitled to relief. *fn2 A court may look to the facts alleged in the complaint, its attachments, and documents incorporated into the complaint by reference or explicitly relied upon in the complaint, but may not consider matters extraneous to the pleadings. *fn3 In determining whether a motion to dismiss should be granted the Court must consider those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn4

Something more than a mere possibility of a claim must be alleged; plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." *fn5 The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." *fn6 The court has no duty to "conjure up unpleaded facts that might turn a frivolous . . . action into a substantial one." *fn7 Furthermore, courts are not bound to accept as true legal conclusions couched as factual allegations. *fn8

1. Statute of Frauds Claim

Plaintiff asserts that under the Statute of Frauds, all leases must be in writing, and therefore, in refusing to remove Hernandez as a trespasser in the absence of a written lease agreement, the Darby Defendants were violating the Statute of Frauds. Preliminarily, the Court notes that the Statute of Frauds is an affirmative defense to a breach of contract claim, and the principle does not give rise to an independent civil cause of action against agencies or individuals who are not parties to an agreement, as alleged here. *fn9

Moreover, under Pennsylvania law, a lease of property for less than three years may be oral or may be created through a course of conduct, and a lease for a longer term is not void or illegal if it violates the Statute of Frauds, but instead "shall have the force and effect of leases or estates at will only." *fn10

Plaintiff does not assert any facts from which the Court can infer that the Darby Defendants violated the Statute of Frauds in failing to remove Hernandez as a trespasser due to the absence of a written lease between the parties. And Plaintiff fails to assert other grounds for immediately evicting or arresting Hernandez. Accordingly, Count I must be dismissed for failure to state a claim.

2. First Amendment Claim

The First Amendment to the United States Constitution guarantees the right to petition the government for redress of grievances, without fear of reprisals or punishment from the government. *fn11 The First Amendment also prohibits the government from taking any action to hinder a person's efforts to pursue a legal claim through the courts. *fn12

Plaintiff alleges that the Darby Defendants violated his right to petition the government for redress of grievances by calling Hernandez, rather than Plaintiff, the "complainant" in the police report created in response to Plaintiff's trespass complaint. However, Plaintiff has not alleged facts from which the Court can infer that the characterization of Hernandez as the "complainant" in the written police report reflected an unwillingness of police officers to hear Plaintiff's grievance during the investigation of his trespass complaint, or otherwise had a substantive impact on Plaintiff's rights. The Complaint admits that the police "advised [Nellom] to obtain a proper eviction and he was advised how to do so." That is, Defendants advised Plaintiff to utilize the mechanism the state legislature has established for resolving landlord-tenant disputes, and explained how to proceed. Far from hindering Plaintiff's effort to pursue a legal claim, the officers who responded to Plaintiff's call advised Plaintiff how to access the courts to resolve his grievance against Hernandez.

Accordingly, the Court finds that Plaintiff has failed to state a First Amendment claim against Moving Defendants.

3. Fourteenth Amendment Violation

In Count III, Plaintiff claims that the Moving Defendants violated his right to equal protection of the state trespass law, and acted to deprive Plaintiff of his property without due process of law. Plaintiff asserts that his right to due process was violated because the police refused to treat Hernandez as a trespasser despite Plaintiff's assertion that Plaintiff and Hernandez had no written legal agreement for lease of the property. However, in light of Hernandez's assertion that he was a tenant in the property, had paid cash to Plaintiff for rent, and remained in the property pursuant to an oral agreement that he could live in the property in exchange for work, the officers at the scene reasonably concluded that Hernandez was a tenant.

Pennsylvania has a summary process for eviction which balances the rights, including the due process rights, of both landlords and tenants in disputes over possession of property. *fn13 Here, the officers reasonably determined that Hernandez has a legitimate interest in the property (i.e. a lease). The officers properly advised Plaintiff that he would need to follow the eviction process and obtain a writ for possession before Hernandez could be removed from the property. This advice was consistent with Pennsylvania law; evicting or arresting Hernandez would have been a violation of Hernandez's civil rights. *fn14

The Darby Defendants correctly note that Plaintiff has failed to allege any facts which would demonstrate that he has been treated differently from other persons similarly situated or that their actions deprived him of a protected property interest without due process. Accordingly, Plaintiff has failed to state a claim for violations of his rights under the Fourteenth Amendment.

4. Conspiracy to Violate Civil Rights

To state a claim for conspiracy to violate civil rights, a complaint must set forth facts demonstrating "that persons acting under color of state law conspired to deprive him of a federally protected right." *fn15

Here, Plaintiff alleges, without specificity, a civil conspiracy to deprive him of his rights. He writes: "the Reports written or otherwise approved by Defendant's [sic] establish a custom or policy of the Municipality to allow violations of clearly established law set forth in Counts I through IV above demonstrate continuing acts of conspiracy by Defendants' [sic] to deprive Plaintiff of his civil rights representing custom in Darby." This claim is clearly based on Plaintiff's mistaken belief that Moving Defendants acted illegally in allowing Hernandez to retain possession of the property he allegedly leased from Plaintiff pending eviction proceedings. In fact, Moving Defendants' actions were fully compliant with state law. Therefore, the Court finds that Plaintiff has not stated a claim for conspiracy between the officers to deprive Plaintiff of rights according to Darby Borough custom or policy. *fn16

Plaintiff also alleges that the Darby Borough police conspired with Hernandez to create and file a false report alleging that Plaintiff stole Hernandez's computer and Xbox game. Plaintiff alleges that the police knew the report was false, but filed it anyway. Plaintiff also asserts that the police deliberately failed to tell him that the report had been filed, in an effort to harm him at some later time. Plaintiff alleges no facts from which the Court can find that the police officer who investigated Hernandez's theft report and filed a written report summarizing that investigation were acting in concert with Hernandez, or shared a common purpose to commit an unlawful act or a lawful act for an unlawful purpose. Assuming, as alleged, that Hernandez lied about the theft, Plaintiff alleges no facts from which the Court can conclude that the officers investigating Hernandez's allegation conspired with Hernandez to further that lie. Filing a police report which summarizes an investigation, whether or not the alleged crime is substantiated upon investigation, is not an unlawful act or a lawful act with an unlawful purpose, but rather is the duty of the investigating police officers.

B. Motion for Preliminary Injunction

Plaintiff moves to enjoin Darby Borough "from illegally enforcing oral contracts of trespassers against property owners in Darby, PA." A preliminary injunction is an extraordinary remedy, and will only be imposed where the moving party demonstrates: "(1) the reasonable probability of eventual success in the litigation and (2) that the movent will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showing, the district court should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest." *fn17

Plaintiff has failed to demonstrate a likelihood of success on the merits. Under Pennsylvania law, landlords and tenants may enter into enforceable non-written contracts for real estate by oral agreement or by course of conduct. *fn18 Tenants may not be treated as trespassers simply because they do not have a written lease. *fn19 If landlords wish to evict a tenant, they must comply with the procedures established by the state legislature, regardless of whether the parties have entered into a written contract. *fn20 Darby Borough police officers must act in accordance with state law, which requires an actionable writ of possession prior to removal of a tenant by an officer. *fn21 Given the state laws which govern this area, Plaintiff has not established a likelihood of success on the merits. *fn22

Because the state has made a summary eviction process available to landlords, which was available to Plaintiff at any time, including during the pendency of this suit, and through which possession of his real property could be restored to him, Plaintiff will not be harmed in the absence of a preliminary injunction issued by this Court.

As noted above, Plaintiff is asking the Court to enter an injunction requiring Darby Borough police officers to remove tenants without a warrant for possession when the tenant cannot produce a written lease. This Court will not direct the Darby Defendants to address landlord-tenant conflicts in a manner inconsistent with state laws governing landlord-tenant relationships, as Plaintiff is asking the Court to do. The Court finds that the state legislature permits a landlord-tenant relationship to be formed without a written lease, and has carefully balanced the property interests of landlords and tenants in establishing Pennsylvania's eviction procedures. The Court will not enter a ruling inconsistent with state law, as doing so would clearly harm the public interest.

C. Plaintiff's Motion for Summary Judgment

Plaintiff filed a Motion for Summary Judgment, which Defendant opposed. Because the Court is dismissing the Complaint for failure to state a claim, Plaintiff's Motion for Summary Judgment will be dismissed as moot.


For the reasons set forth herein, Defendants' Motion to Dismiss is granted. The Court dismisses the claims against the Darby Defendants with prejudice, as amendment would be futile. Plaintiff cannot bring civil rights claims against Hernandez, as there is no allegation that he acted under color of state law, and this Court will not exercise supplemental jurisdiction over any state law claims Plaintiff wishes to pursue against Hernandez. However, this ruling is without prejudice to Plaintiff's right to pursue an eviction action or other appropriate action against Hernandez in state court.

Plantiff's Motion for a Preliminary Injunction is denied, and Plaintiff's Motion for Summary Judgment is dismissed as moot. An appropriate order follows.

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