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Vercusky v. Wech

United States District Court, Third Circuit

November 8, 2013

THOMAS M. VERCUSKY, Plaintiff,
v.
RICHARD A. WECH, in his official capacity, and CITY OF HAZLETON, Defendants. RICHARD A. WECH, in his official capacity, and CITY OF HAZLETON, Third-Party Plaintiffs,
v.
BARRY ISETT AND ASSOCIATES, INC., and RICHARD HARMON, Third-Party Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is the Motion to Dismiss (Doc. 10) the Third-Party Complaint filed by Third-Party Defendants Barry Isett and Associates, Inc. and Richard Harmon (collectively, the "Third-Party Defendants"). Because the Third-Party Complaint fails to set forth a valid third-party claim under Rule 14(a)(1) of the Federal Rules of Civil Procedure, Third-Party Defendants' motion to dismiss will be granted.

I. Background

Plaintiff Thomas M. Vercusky ("Vercusky") commenced this action against Defendants/Third-Party Plaintiffs Richard A. Wech ("Wech") and the City of Hazleton (the "City") on May 31, 2013 (collectively, the "Third-Party Plaintiffs"). Vercusky alleges that Wech and the City deprived him of his procedural and substantive due process rights in violation of the Fourteenth Amendment to the United States Constitution when they evacuated and condemned an apartment building he owned and disconnected the building's power. ( Compl. )

Wech and the City filed an Answer to Vercusky's Complaint on August 2, 2013. (Doc. 6.) The same day, Wech and the City filed a Third-Party Complaint against Barry Isett and Associates, Inc. ("Isett") and Richard Harmon ("Harmon"). ( Third-Party Compl. )

Third-Party Defendant Harmon is a Construction Inspector and Project Manager that is employed by Isett or works as an independent contractor for Isett. ( Third-Party Compl., ¶¶ 5-6.) Harmon specializes in building and construction codes and ordinances. ( Id. ) During the times relevant to Vercusky's Complaint, Isett and/or Harmon contracted with the City to provide inspection services for buildings in the City. ( Id. at ¶ 7.) Isett and/or Harmon's duties included inspecting buildings, identifying code violations, providing advice regarding the existence of code violations to the City and Wech, and authoring reports and Notices of Violations. ( Id. at ¶ 8.) Third-Party Defendants were retained by Wech and the City based on their purported expertise in building and construction codes and ordinances, and Wech and the City relied upon their advice regarding building inspections and code violations. ( Id. at ¶¶ 9-10.)

The Third-Party Complaint alleges that Isett and Harmon are liable to Vercusky and/or liable to Third-Party Plaintiffs for all or part of the claims against them because: (1) Wech and the City acted pursuant to Third-Party Defendants' advice; (2) Isett is liable for the conduct of its employee/agent; (3) Third-Party Defendants breached their contract with the City by providing inaccurate advice regarding building codes and code violations; (4) Third-Party Defendants authored the Notices of Violation furnished to Vercusky; (5) the decision to evacuate Vercusky's building was made by Third-Party Defendants; and (6) Third-Party Defendants decided to disconnect Vercusky's utilities. ( Id. at ¶ 11.) Based on the foregoing, Third-Party Plaintiffs assert a claim for contribution against Third-Party Defendants on Vercusky's underlying due process claim, as well as a breach of contract claim against Isett and Harmon.[1]

On September 24, 2013, Third-Party Defendants filed a motion to dismiss the Third-Party Complaint pursuant to Rules 12(b)(6) and 14 of the Federal Rules of Civil Procedure. (Doc. 10.) Third-Party Plaintiffs filed a brief in opposition to the motion to dismiss on October 8, 2013, (Doc. 12), and Third-Party Defendants filed a timely reply brief in further support of their motion. (Doc. 14.) The motion to dismiss is thus ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of the plaintiffs' claims, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if the plaintiffs are entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether plaintiffs will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States , 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2) must "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). As such, "[t]he touchstone of the pleading standard is plausability." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The inquiry at the motion to dismiss stage 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).

Dismissal is appropriate only if, accepting as true all the facts alleged in the counterclaim, a counterclaim plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face, " Twombly, 550 U.S. at 570, 127 S.Ct. 1955, meaning enough factual allegations "to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "bald assertions'" or "legal ...


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