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Bolick v. Northeast Industrial Services Corporation

United States District Court, M.D. Pennsylvania

January 14, 2015

THOMAS M. BOLICK, et al., Plaintiffs,



This is a pro se action for damages and injunctive and declaratory relief, asserting federal and state law claims against a motley collection of defendants. The various defendants have sorted themselves into groups and filed seven separate motions to dismiss the action.


The original complaint in this matter was filed on March 5, 2014. (Doc. 1). An amended complaint was filed on July 11, 2014. (Doc. 14). In the amended complaint, the Bolicks have asserted several federal civil rights claims under 42 U.S.C. § 1983, a federal antitrust claim under the Sherman Act, 15 U.S.C. § 1, and the Clayton Act, 15 U.S.C. § 15, a federal civil claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and state law claims of civil conspiracy, fraud, and defamation. The amended complaint names fourteen defendants, and the caption references ten additional fictitious John or Jane Doe defendants.

The Bolicks' claims appear to find their genesis in two separate and unrelated events, although the Bolicks contend that all of the events described in the amended complaint are manifestations of a larger conspiracy among all of the defendants. First, the Bolicks appear to have owned an unoccupied house and land in Mount Carmel, Pennsylvania, which included frontage on Shamokin Creek. At some point prior to March 1, 2012, an unspecified municipal defendant filed a declaration of taking, seeking to acquire a portion of this land parcel by eminent domain for construction of the Shamokin Creek Flood Control Project. Between March 1 and March 16, 2012, contractors demolished buildings and removed materials from the site, apparently including a significant number of personal property items. Based on these facts, Count I of the amended complaint alleges that the Bolicks were deprived of their real and personal property without due process or just compensation. With respect to these claims, the Bolicks have named the following defendants: (1) Northeast Industrial Services Corporation and William R. Williams, its sole or principal owner (collectively, "Northeast"); (2) Jeff Kurtz, an individual doing business as Jeff's Recycling; (3) Mount Carmel Borough and its manager, Edward T. Cuff III (collectively, the "Borough"); and (4) Northumberland County (the "County").

Second, the Bolicks appear to have disputed a charge to their Discover Card account. On March 26, 2010, they obtained a default judgment from a state magisterial district judge against one of an apparent multitude of Discover Financial subsidiaries, based on claimed violations of various federal and state consumer protection laws. The default judgment was subsequently vacated without prejudice by the Northumberland County Court of Common Pleas for lack of jurisdiction on February 7, 2011. That vacatur was then affirmed per curiam on appeal by the Superior Court of Pennsylvania on February 6, 2012. The Bolicks subsequently attempted to re-litigate the same issue in the state courts, but their motion to vacate the writ of certiorari that initiated the vacatur action was denied by the Court of Common Pleas on June 13, 2012. That order was then affirmed by the Superior Court on September 12, 2013, and the appellate court further sanctioned the Bolicks for filing a frivolous appeal, awarding reasonable attorney fees to the other side. The Supreme Court of Pennsylvania subsequently denied allocatur on February 20, 2014. Meanwhile, on a parallel track, the Bolicks litigated this same dispute to a final decision on the merits in federal court, where the bank was granted summary judgment on September 16, 2011, and the Bolicks did not appeal.[1] Based on these facts, Count III of the amended complaint claims that the Bolicks were deprived of a property interest (the vacated default judgment) without due process. With respect to these claims, the Bolicks have named the following defendants: (1) DFS Services LLC f/k/a Discover Financial Services and Discover Bank of Delaware (collectively, "Discover Bank"); (2) Daniel McKenna (counsel of record for Discover Bank in the prior proceedings), and Ballard Spahr LLP f/k/a Ballard Spahr Andrews & Ingersoll LLP (McKenna's law firm) (collectively, "Ballard Spahr"); (3) Judge Charles H. Saylor of the Northumberland County Court of Common Pleas; and (4) the County, in its purported supervisory role over Judge Saylor and the Northumberland County Court of Common Pleas.[2]

Count VIII of the amended complaint asserts a closely related claim based on the same court proceedings against Discover Bank. The Bolicks claim that they are the victims of federal antitrust violations perpetrated by a conspiracy between Ballard Spahr and the County to deprive the Bolicks of their due process rights. Although the factual basis for this claim is not entirely clear from the text of the amended complaint, these defendants allegedly "monopolized, fixed, and/or raised, prices for legal profession in the Pennsylvania courts" over a period between 2011 and the present, in violation of the Sherman Act.

Count X of the amended complaint is similarly derivative of both the eminent domain and credit card disputes. Shortly after the original complaint was filed, a news article about this federal lawsuit was published in the News Item, a daily newspaper serving the Northumberland County, Pennsylvania, area. The news article summarized the allegations of the original complaint, quoted comments on the lawsuit by Borough officials, and provided some additional background information regarding the flood control project and eminent domain proceedings. Based on this news article, the Bolicks assert a state law claim of defamation against the News Item and its parent company, The Scranton Times LP (collectively, the "Newspaper").

Most of the remaining claims asserted in the amended complaint are directed at all of the defendants, whom the Bolicks allege to have participated in a grand scheme or conspiracy against them. Count VI claims that all of the defendants participated in a conspiracy to deprive the Bolicks of their substantive due process rights. Count VII claims that all of the defendants participated in a conspiracy to retaliate against the Bolicks for exercising their free speech rights. Count IX claims that all of the defendants participated in a conspiracy to injure the Bolicks through a pattern of unlawful racketeering activity, including unspecified instances of mail and wire fraud. Count IV asserts a state law civil conspiracy claim against all defendants, and Count V asserts a state law fraud claim against all defendants.

Count II of the amended complaint claims that the municipal defendants - the County and the Borough - are vicariously liable for the alleged constitutional torts committed by municipal officials in Counts I, III, VI, and VII, alleging that the conduct of certain municipal officers or employees was taken pursuant to policies or customs explicitly or implicitly adopted by the County and Borough themselves, and further that the County and Borough should be held vicariously liable for failure to adequately train and supervise Judge Saylor and Borough Manager Cuff.

All of the named defendants have moved to dismiss the amended complaint, filing seven separate motions. (Doc. 16 (Discover Bank and Ballard Spahr); Doc. 18 (the County); Doc. 23 (Northeast); Doc. 37 (the Borough); Doc. 39 (Kurtz); Doc. 52 (the Newspaper); Doc. 59 (Judge Saylor)). These motions are all fully briefed and ripe for decision.


Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).

Under Rule 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v. Luzerne County Head Start, Inc., 385 F.Supp.2d 491, 495 (M.D. Pa. 2005). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so - he may opt to stand on the pleadings rather than filing an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).


Judge Saylor has moved to dismiss the complaint on the ground of absolute judicial immunity. The remaining defendants have moved to dismiss for failure to state a claim. Some of them have also moved to dismiss for defective service of process.


The Bolicks contend that Northeast, Kurtz, the Borough, and the County deprived them of their real and personal property without due process or just compensation. In particular, the Bolicks claim that, pursuant to an earlier declaration of taking by one of the municipal defendants (not explicitly identified in the amended complaint), between March 1 and March 16, 2012, Northeast demolished buildings on the land owned - or previously owned - by the Bolicks, and Kurtz removed certain personal property items that were either in the house or on the land.[3] Presumably, Northeast and Kurtz did this pursuant to a contract with one of the municipal defendants, and at that municipality's direction. The Bolicks further contend that this action was irrational, arbitrary, and capricious, thus depriving them of substantive due process, and that it was undertaken in retaliation for the exercise of their free speech rights. Finally, the Bolicks contend that municipal defendant Mount Carmel Borough is vicariously liable for all of these constitutional torts with respect to the conduct of Borough Manager Cuff.

1. Ripeness of Takings and Due Process Claims

"The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the government from taking private property for public use without just compensation." Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (citation omitted). "[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied." Edelweiss Dev. Corp. v. County of Susquehanna, 738 F.Supp. 879, 883 (M.D. Pa. 1988) (emphasis in original). Thus, the Supreme Court of the United States has held that, "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation." Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985).

The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a section 1983 action. If a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause until it has used the procedure and then [has been] denied just compensation.

Edelweiss, 738 F.Supp. at 883.

"In Williamson, the Court identified a two-part test to determine whether illegal taking claims are ripe: a final administrative decision by the government entity (finality requirement') and a denial of just compensation through the use of any available state procedures (just compensation requirement')." Baranowski v. Borough of Palmyra, 868 F.Supp. 86, 88 (M.D. Pa. 1994) (citing Williamson, 473 U.S. at 186-94). Here, the amended complaint clearly satisfies the finality requirement, having alleged the filing of a declaration of taking at some point prior to March 1, 2012.[4] But it alleges no facts whatsoever regarding the just compensation requirement.[5]

Pennsylvania's federal courts have repeatedly held that the Eminent Domain Code of Pennsylvania, 26 Pa. C.S.A. § 101 et seq., provides an adequate procedure for seeking just compensation. See Knute Enters., Inc. v. Dupont Borough, No. 3:06-CV-01978, 2007 WL 2844952, at *5 (M.D. Pa. Sept. 26, 2007); Coles v. City of Philadelphia, 145 F.Supp.2d 646, 652 (E.D. Pa. 2001); Baranowski, 868 F.Supp. at 88; Schertel v. Rex, 764 F.Supp. 1002, 1005 (E.D. Pa. 1991). It is clear from the allegations of the amended complaint that one of the two municipal defendants initiated the taking at issue by filing a declaration of taking pursuant to 26 Pa. C.S.A. § 302, but the amended complaint fails to allege any facts to suggest that the Bolicks availed themselves of the remedies afforded them under the Eminent Domain Code, nor any facts to plausibly demonstrate that they were denied just compensation. Accordingly, the Bolicks' takings claim is not ripe.

The Bolicks have also asserted ancillary substantive and procedural due process claims arising out of the same allegedly illegal taking. The Williamson ripeness rule applies to these claims as well. See Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1292-94 (3d Cir. 1993); Baranowski, 868 F.Supp. at 88-90; Schertel, 764 F.Supp. at 1005 n.2. Thus, these due process claims are also not ripe at this time.

Accordingly, the Bolicks' takings, procedural due process, and substantive due process claims arising from the eminent domain proceedings must be ...

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