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Liggett v. The Borough of Brownsville

United States District Court, W.D. Pennsylvania

May 12, 2015

THE BOROUGH OF BROWNSVILLE; EDWARD E. NICHOLSON Individually and in his official capacity as Code Enforcement Officer for the Borough of Brownsville, Pennsylvania; LESTER J. WARD Individually and in his official capacity as Mayor of The Borough of Brownsville, Pennsylvania; JACK J. LAWVER Individually and in their official capacity as Council Members of The Borough of Brownsville, Pennsylvania; THOMAS BUSH Individually and in their official capacity as Council Members of The Borough of Brownsville, Pennsylvania; JOHN T. HOSLER Individually and in their official capacity as Council Members of The Borough of Brownsville, Pennsylvania; JAMES S. LAWVER Individually and in Their official capacity as Council Members of The Borough of Brownsville, Pennsylvania; CHARLES B. PERKINS Individually and in their official capacity as Council Members of The Borough of Brownsville, Pennsylvania; ROSS T. SWORDS, JR. Individually and in their official capacity as Council Members of the Borough of Brownsville, Pennsylvania; MELINDA K. DELLAROSE Esquire, Individually and in her official capacity as Solicitor of the Borough of Brownsville, Pennsylvania, Pennsylvania; NORMA J. RYAN individually and in their official Capacity as Council Members of the Borough of Brownsville, Pennsylvania; TRACY SHEEHAN ZIVKOVICH Individually and in their official capacity as Council Member of the Borough of Brownsville, Pennsylvania; DAVIS & DAVIS ATTORNEYS AT LAW in their Official capacity as Appointed Solicitor of the Borough of Brownsville, Pennsylvania, Defendants. ECF Nos. 15, 17, 22, 30



Pending before the Court are Motions to Dismiss filed on behalf of each of the Defendants. The Motions to Dismiss raise the absence of personal jurisdiction in this Court, occasioned by the Plaintiff’s failure to serve process in accordance with the Pennsylvania Rules of Civil Procedure and/or Rule 4 of the Federal Rules of Civil Procedure. Defendants alternatively raise additional grounds for dismissal, including: (1) the applicable statute of limitations as to certain of Plaintiff’s claims, (2) the failure to allege facts giving rise to any claims upon which relief may be granted, and (3) judicial estoppel as an apparent and complete defense.

For the following reasons, the Motions to Dismiss at ECF Nos. 15, 17, 22 and 30 are GRANTED.


A. Plaintiff’s Allegations

Plaintiff’s Amended Complaint recounts his nearly 25-year unsuccessful venture to spur commercial development along the Monongahela River in the economically depressed Borough of Brownsville, Pennsylvania. Plaintiff alleges his plan began in 1991, with the purchase of 127 abandoned properties. Plaintiff pursued his vision for renewal throughout the 1990’s up to 2010, meeting with various political figures and private commercial parties to develop an outlet retail mall and family entertainment center, an Olympic rowing facility, an Olympic cycling arena, a riverboat gambling casino, and/or an Indian Gaming casino site. For a variety of reasons contained in the 62 pages of the Amended Complaint, Plaintiff’s dream of directing a revitalized Brownsville never came to fruition.

Plaintiff alleges that during the years 1992-2002, he maintained all buildings in accordance with the Borough of Brownsville Building Code. (ECF No. 12, ¶¶ 12-13). However, in 2001 to 2002, the Borough of Brownsville began to selectively enforce its building codes, requiring Plaintiff to obtain a permit to install chicken wire along the façade of a vacant theater, and requiring him to address major structural issues related to other vacant properties. Plaintiff was cited for several building code violations. The citations were reissued for continued noncompliance. In 2002, Plaintiff unsuccessfully appealed certain of the violations and was ordered by the Court of Common Pleas of Fayette County to pay fines and associated costs, to raze certain structures and to clear specific vacant sites.

Plaintiff again unsuccessfully sought court intervention in 2002 when his demolition plan of burning and burying debris at seven building sites was thwarted by the Borough. Plaintiff complained that a similarly situated property owner was able burn and bury debris, but that he was prevented from using these methods to clear his land. Similarly, in 2002, after being instructed to install a new roof on a dilapidated building, Plaintiff was required to complete (and recomplete) a building permit to gain approval for the encapsulation of the building. Plaintiff alleges that another property owner was allowed to install a new roof without a building permit, and that another owner was able to erect a blue tarp over the building in lieu of a roof, but he was not. (ECF No. 12, ¶¶ 46-65).

Plaintiff believes this disparate treatment and selective code enforcement was part of a scheme on behalf of Defendant Norma J. Ryan (“Ryan”), the former Borough Mayor, to advance a competing development plan. (ECF No. 12, ¶ 80). Specific instances of alleged disparate treatment involved the issuance of several Notice of Violation citations in 2003 through 2006, during which time Plaintiff alleges he “was held to a higher standard than similarly situated property owners.” (ECF No. 12, ¶ 86 (b)).

Plaintiff contends that in 2007, he was subject to “a recurring pattern of retaliation and intimidation wherein vandalism follows court hearings where plaintiff prevails, public meetings where plaintiff was viewed favorably, or when plaintiff receives favorable press.” (ECF No. 12, ¶ 86(e)). Plaintiff believes this was part of a coordinated effort by Defendant Ryan, as articulated in judicial proceedings in 2003, to acquire Plaintiff’s property through eminent domain and to prevent any economic return on Plaintiff’s investment. (ECF No. 12, ¶ 95).

Plaintiff further alleges that when Defendant Ryan left office in 2005, the “Redevelopment Authority of the County of Fayette” (“RACF”) continued plans to demolish certain of plaintiff’s properties in furtherance of a competing development plan for downtown Brownsville.[1] In 2006, Defendant Tracey Sheehan Zivkovich (“Zikovich”), a Borough Council member, held a “downtown property owners” town meeting and presented an RACF development plan that depicted certain of Plaintiff’s properties as razed and replaced by a parking lot and curb cuts.” (ECF No. 12, p. 148). Also in 2006, Plaintiff forwarded correspondence to the Borough of Brownsville Mayor, Council, Code Officials and Police Department documenting incidents of theft, damage and vandalism for the years 1993 to date which were not addressed by the Brownsville Police Department. Plaintiff asserted that “the groups had worked in concert to ignore vandalism on plaintiff’s properties and utilize code enforcement as a sword to financially cripple plaintiff in pursuit of their effort to take plaintiff’s properties and his development and marketing plans.” (ECF No. 12, ¶ 155). According to Plaintiff, RACF executed additional code enforcement proceedings in 2006 and ordered the demolition of certain of Plaintiff’s properties without “any court order hearing or due process.” (ECF No. 12, ¶ 159).

In 2009, the RACF designated Plaintiff’s properties as “blighted” and passed a condemnation resolution on May 18, 2009. Plaintiff alleges that on June 3, 2009, the RACF “filed de jure Declarations of Taking for Plaintiff’s (22) properties in the downtown commercial district of [the Borough of Brownsville] and title to the properties was vested in RACF by operation of law 26 Pa. Cons. Stat. § 302(a).” Certain citations for code violations were reissued and then dismissed in December 2009, and again filed against Plaintiff by Defendant Edward E. Nicholson (“Nicholson”), the Code Enforcement Officer of the Borough, on March 8, 2010.

Plaintiff alleges he “sold” his remaining investment properties on July 12, 2010, at a “special Fayette County Upset Tax Sale.” (ECF No. 12, ¶ 194). In the absence of any bids, Plaintiff alleges that legal title transferred to the Fayette County Tax Claim Bureau, and that by operation of 73 P.S. § 5860.607(g), Plaintiff was “prohibited from redeeming any of the properties.” (ECF No. 12, ¶ 194).

Thereafter, from May 11, 2011, through March 8, 2012, Defendant Nicholson filed 67 additional citations against Plaintiff for building code violations. Plaintiff challenged the citations at a hearing, contending that because the properties were involved in an upset tax sale, title transferred to Fayette County on June 12, 2010. In addition, Plaintiff argued that Nicholson was not qualified to issue citations, and that certain violations were improperly combined. Plaintiff alleges that the 67 citations were subsequently withdrawn on or about April 27, 2012. (ECF No. 12, ¶¶ 200, 209).

In 2013, the RACF solicited proposals for the development of Brownsville’s historical district, “utiliz[ing] plaintiff’s development plans, marketing plans and marketing materials.” (ECF No. 12, ¶ 145). Plaintiff contends that the use of his proposal supports his claim for unjust enrichment.

Based upon the allegations in his Amended Complaint, Plaintiff asserts four causes of action, as follows:

1. Count I: an alleged violation of Plaintiff’s rights to equal protection (presumably pursuant to the United States Constitution and 42 U.S.C. § 1983) by inter alia, issuing 145 citations against Plaintiff in the period 2005 through 2009, but treating other property owners differently by failing to issue citations for similar conditions and conduct (ECF No. 12, p. 55);

2. Count II: a claim allegedly arising under and pursuant to 42 U.S.C. § 1983, for the deprivation of Plaintiff’s civil rights “in harassing intimidating and financially crippling plaintiff in an effort to take plaintiff’s property and prosecute plaintiff’s redevelopment plan;” and in “den[ying] plaintiff his right to own property, ” by utilizing “plaintiff’s development plan and plaintiff’s marketing proposals” (ECF No. 12, p. 57);

3. Count III: violations of the Racketeer Influenced and Corrupt Organizations Act, (“RICO”), 18 U.S.C. §§ 1961 – 1968 and conspiracy to violate the RICO Act, 18 U.S.C. § 1962(d) (ECF No. 12, p. 58); and

4. Count IV: a state law claim for unjust enrichment arising out of “Defendants” taking plaintiff’s property and using his development and marketing plans without his permission (ECF No. 12, p. 60).

B. Procedural History

This action was commenced on March 3, 2014, in the Court of Common Pleas of Fayette County, Pennsylvania, with the filing of a Praecipe for Writ of Summons. The writ named 13 defendants, including the Borough of Brownsville, its Mayor, Borough of Brownsville Council members, the Borough of Brownsville Code Enforcement Officer, and the Borough Solicitor. (ECF No. 16-3). When an action is commenced with a Praecipe for Writ of Summons, the Pennsylvania Rules of Civil Procedure require that it be served on each named defendant, providing notice that an action has been commenced, in the form provided by Pa.R.C.P. 1351. To provide notice, Pennsylvania Rule of Civil Procedure 401(a) provides that “[o]riginal process shall be served within the Commonwealth within thirty days after the issuance of the writ.” If not served within thirty days, “the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ … by writing thereon ‘reissued’ in the case of a writ.” Pa.R.C.P. 401(b)(1). The state court docket reflects that that the writ was not served on any named Defendant within thirty days and was never reissued. (ECF No. 16-3).

Plaintiff concedes that service of the writ did not occur within thirty days. Plaintiff states instead that “[t]he original complaint and service in this matter was filed by the Plaintiff on July 14, 2014 ... In an attempt to effect service of the original complaint, Plaintiff effected service by first-class mail.” (ECF No. 32, p. 10). Pennsylvania does not permit service of a complaint on Pennsylvania residents by mail; rather, except in situations not implicated here, Rule 400(a) provides that “original process shall be served within the Commonwealth only by the sheriff.” Pa.R.C.P. 400(a). Further, if mailing could somehow be construed as appropriate, “under Pennsylvania Rule of Civil Procedure 403, service of process by mail requires that a copy of the summons and the complaint be mailed to an individual by any form of mail requiring a receipt signed by the individual or the individual’s authorized agent. Pa. R.C.P. 403.” Barkley v. Westmoreland Cnty. Children’s Bureau, No. 11-CV-00983, 2012 WL 4482542, at *2 (W.D. Pa. Sept. 26, 2012). Receipts evidencing delivery of the Complaint were not filed on the state docket of this matter.

On August 14, 2014, Thomas Bush, the Borough of Brownsville, Lester J. Ward, Jack J. Lawver, James S. Lawver, Ross T. Swords, Jr, John T. Hosler, Charles B. Perkins and Edward E. Nicholson (“the Borough of Brownsville Defendants”) filed a Notice of Removal pursuant to 28 U.S.C. § 1441(a) and (b) and 42 U.S.C. § 1983, removing Plaintiff’s action to this Court, and citing Plaintiff’s assertion of federal claims as the basis for subject matter jurisdiction. On August 20, 2014, the Borough of Brownsville Defendants filed a Motion to Dismiss, challenging Plaintiff’s failure to effect service of process on any Defendant as a bar to this Court’s exercise of personal jurisdiction, and contending that Plaintiff’s claims are barred by the statute of limitations and are otherwise legally insufficient. (ECF No. 2).

Thereafter, on September 15, 2014, Plaintiff filed an Amended Complaint (ECF No. 12), adding Defendants Ryan, individually and in her capacity as a Borough of Brownsville Council Member, and Davis & Davis, Attorneys at Law, in its official capacity as Appointed Solicitor of the Borough of Brownsville, Pennsylvania (“Davis & Davis”). The docket reflects that the Plaintiff has not effectuated service of the Amended Complaint on the newly named ...

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