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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 ...

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