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Bank v. City of Philadelphia

United States District Court, Third Circuit

January 13, 2014

JOHN B.R. BANK et al., Plaintiffs,
CITY OF PHILADELPHIA et al., Defendants.




This case involves claims made against Defendants for violations of federal and state law. The claims include allegations of unreasonable seizures in violation of 42 U.S.C.A. § 1983, abuse of process, civil conspiracy, and conversion, and stem from the following facts. Plaintiffs, John B. R. Bank, Samuel T. Ascolese, Jr., and Walter Mark McClanahan, owned vintage cars. John Bank owned a 1939 Buick convertible. (Doc. No. 1 at ¶ 16.) Samuel Ascolese owned a 1949 Cadillac convertible. (Id. at ¶ 17.) Walter McClanahan owned a 1947 Cadillac Fleetwood. (Id. at ¶ 18.) The cars needed restoration work. Plaintiffs took them to James H. Foster (“Foster”), who operated a business known as West Johnson Classics.[1]

Foster repaired and restored classic cars at a garage located at 86 West Johnson Street, Philadelphia, Pennsylvania, 19144. (Id. at ¶ 13.) The garage was owned by Alfred Jefferson (“Jefferson”). On March 1, 2010, Foster signed a Non-Residential Lease for Real Estate (“Lease Agreement”) to rent the garage from Jefferson. (Doc. Nos. 56, Exhibit A; 70 at 2.) In addition to using the garage for repairs, Foster used the space to store classic cars and expensive parts. The Lease Agreement provided that Foster would pay Jefferson a monthly rental of $3, 000. (Doc. No. 70 at 2.)

The two men had a falling out, and on or about November 16, 2010, Jefferson brought an action in Landlord-Tenant court against Foster for two months’ back rent that had not been paid. (Doc. No. 1 at ¶ 19.) On December 17, 2010, the Philadelphia Municipal Court entered judgment in favor of Jefferson and against Foster in the amount of $9, 596 plus interest. (Doc. No. 70 at 3.) On January 21, 2011, the court also issued a Writ of Possession in favor of Jefferson. (Doc. No. 9, Exhibit A.)

According to Jefferson, Foster knew about the Writ of Possession and had a contractual duty under the Lease Agreement to remove any goods and effects from the garage. (Doc. No. 70 at 3.) In response, the Foster Defendants contend that Foster was working with Jefferson to remedy the delinquent payments and was in the process of clearing out the contents of the garage, which housed Plaintiffs’ cars in various stages of restoration. (Doc. No. 66 at 3.) According to Jefferson, however, the Foster Defendants failed to take prompt and/or reasonable action to remove the cars and parts from the garage and to return them to Plaintiffs. (Doc. No. 70 at 3.) The items remained in the garage for roughly four months after the Writ of Possession was issued.

On or about May 16, 2011, in the early morning hours, several Philadelphia police officers arrived at the West Johnson Garage where, as noted, the cars and parts were stored. (Doc. No. 1 at ¶ 24.) Using a line of tow trucks, and pursuant to Pennsylvania’s abandoned vehicle code, [2] the officers removed classic cars and parts from the commercial property. (Doc. Nos. 1 at ¶ 42; 48 at ¶ 108.) Plaintiffs’ cars and parts were removed without their knowledge. After the police removed the cars and parts, they were turned over to Century Motors, Inc. (“Century Motors”). (Doc. No. 1 at ¶ 45.) According to the Foster Defendants, “Century Motors holds itself out as a body shop, garage, and specialty parts dealer for antique, classic, and muscle cars.” (Doc. No. 66 at 4.) Century Motors asserts that it was authorized under law to accept and store the cars and parts. (Doc. No. 48 at 5.) After the police identified the cars belonging to Plaintiffs, Century Motors returned them to Plaintiffs. (Id. at ¶ 45. See also Doc. No. 1 at ¶¶ 58, 66-67.) The cars were returned damaged. Moreover, certain parts were never recovered by Plaintiffs.

Given these events, Plaintiffs filed an action against the City of Philadelphia and Police Officer Sean Boyle (“Officer Boyle”), who seized the cars and parts, and against Jefferson and Century Motors.[3] In their Complaint, Plaintiffs assert four claims: 1) Count I – Unreasonable Seizure of Property in Violation of 42 U.S.C.A. § 1983; 2) Count II – Abuse of Process; 3) Count III – Conversion; and 4) Count IV – Civil Conspiracy. (Doc. No. 1 at ¶¶ 82˗ 126.) In turn, on June 26, 2013, Century Motors filed a Third-Party Complaint[4] against Steffa Metals, Inc., alleging that Steffa Metals participated in the removal, junking, salvaging, and/or disposal of various cars and/or parts that were taken from the West Johnson Garage on May 16, 2011. (Doc. No. 17 at ¶ 19.)

Next, on August 13, 2013, Jefferson filed a Third-Party Complaint against the Foster Defendants, seeking indemnification.[5] (Doc. No. 34.) Thereafter, Jefferson filed two Amended Third-Party Complaints against the Foster Defendants, first on October 24, 2013 (Doc. No. 55) and then on October 29, 2013 (Doc. No. 56). On November 22, 2013, the Foster Defendants filed a Motion to Dismiss Jefferson’s Third-Party Complaint (Doc. No. 66), which is now before the Court for a decision.

The Foster Defendants have also moved to dismiss Century Motors’ Second Amended crossclaim.[6] (Doc. No. 53.) In its Second Amended Answer, Century Motors brought a crossclaim against the City of Philadelphia, Officer Boyle, and Alfred Jefferson. (Doc. No. 48 at 41-42.) Century Motors also asserted a crossclaim against the Foster Defendants seeking indemnification and/or contribution. (Id. at 43-46.) On October 10, 2013, the Foster Defendants filed a Motion to Dismiss Century Motors’ crossclaim (Doc. No. 53), and this Motion is also before the Court for disposition. For reasons that follow, the Court will grant in part and deny in part the Foster Defendants’ Motion to Dismiss Jefferson’s Amended Third-Party Complaint. The Court will also grant the Foster Defendants’ Motion to Dismiss Century Motors’ Crossclaim in its entirety.[7]


The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663. See also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual France v. Abbott Labs., 707 F.3d 223, 231, n.14 (3d Cir. 2013) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where 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. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “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).

A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show” such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘shown’ — ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679. The “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.


The Foster Defendants filed two separate motions to dismiss. First, as Third-Party Defendants, they filed a Motion to Dismiss Defendant/Third-Party Plaintiff Jefferson’s Amended Third-Party Complaint. (Doc. No. 66.) The Foster Defendants have also moved to dismiss Century Motors’ Second Amended Crossclaim brought against them. (Doc. No. 53.) The Court will discuss each Motion seriatim.

1. Alfred Jefferson’s Third-Party Complaint Alleges Facts Which Plausibly Give Rise to a Cause of Action for Indemnification on Counts II-IV[8]

In his Complaint, Jefferson raises a claim for indemnification[9] against the Foster Defendants. Jefferson’s claim is based on language in the Lease Agreement[10] which states that the Lessee will “[i]ndemnify and save Lessor harmless from any and all loss occasioned by Lessee’s breach of any of the covenants, terms and conditions of [the Lease Agreement], or caused by his family, guests, visitors, agents and employees.” (Doc. No. 56, Exhibit A at ¶ 9(i) (emphasis added).) According to Jefferson, Foster covenanted and agreed that:

a. Foster will indemnify Jefferson for any and all loss occasioned by Foster’s breach of any of the covenants, terms ...

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