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Shipley v. Delaware County Tax Claim Bureau

United States District Court, E.D. Pennsylvania

May 12, 2015




Now before me are motions to dismiss the claims of plaintiff John S. Shipley, proceeding pro se, by defendants Delaware County Tax Claim Bureau, Kathy S. Wike, [1] Delaware County Government Center and Steven Vincent Bottiglieri[2] (collectively, the Delaware County defendants) (Dkt No. 27) and by defendant Michael Dignazio (Dkt. No. 28). In response plaintiff filed a document titled “Motion Opposing All of the Defendants[’] Motion[s] to Dismiss” (Dkt. No. 32), to which defendant Dignazio filed a reply (Dkt. No. 33). Plaintiff then filed a response to Dignazio’s reply (Dkt. No. 36).[3] After considering the motions to dismiss and plaintiff’s responses and for the reasons that follow, I will grant defendants’ motions.


Shipley claims that “the defendants upon this complaint have shown that they are going thr[ough] drastic measures to steal [his] property.” Dkt. No. 21 at ECF p. 2. Shipley’s complaint and amended complaint assert claims for alleged violations of his constitutional rights and his rights under state law in connection with what plaintiff describes as tax sales[4] relating to two properties located in Delaware County, Pennsylvania: a property located at 9th Street in Chester, and a property located at 210 Willers Road in Aston.[5] Dkt. No. 1 at ECF p. 2; Dkt. No. 21 at ECF p. 11. Shipley, who is black, contends that defendants’ actions with respect to the tax sales violated his constitutional rights and that defendants violated his rights on the basis of his race. Dkt. No. 1 at ECF p. 1, 4; Dkt. No. 21 at ECF p. 11, 13. He asserts claims under the Thirteenth Amendment, the Equal Protection and Due Process clauses of the Fourteenth Amendment and “the privilege and immunities clause of Article 4 in the Fourteenth Amendment.” Dkt. No. 1 at ECF p. 4; Dkt. No. 21 at ECF p. 11, 13. He also contends that his action is

brought pursuant to 42 U.S.C.S. 1981, 1982, 1985(3) and 1986, to secure the rights of the Plaintiff[ ] to be secure in [his] property as would a white citizen, to enforce the rights of Plaintiffs to inherit, purchase, lease, sell, hold, and convey real and personal property o[n] the same basis as white citizens, to be protected from malicious prosecution, malicious abuse of process, and otherwise a deprivation of property, and to be free from conspiracy intended to deprive Plaintiff of his rights

under the Constitution. Dkt. No. 21 at ECF p. 11. In his opposition to defendants’ motions to dismiss, Shipley asserts that defendants “conspired to violate plaintiff[’]s civil rights and to take the propert[ies in Aston and Chester] without giving proper notice and having a private sale without proper notice.” Dkt. No. 32 at ECF p. 1. In his amended complaint Shipley also alleges that “the laws that the state of Pennsylvania and Delaware [C]ounty and the rules of Civil Procedure promulgated by the Supreme Court of Pennsylvania are unconstitutional as they pertain to the obtaining of a tax sale of a person[’]s property without notice to the owner of any such sale.” Dkt. No. 21 at ECF p. 12.

Shipley’s complaint and amended complaint provide little detail regarding the tax sales in question, but in deciding defendants’ motions to dismiss I may also consider documents relevant to the tax sales which are “attached to or submitted with the complaint, and any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.’” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006), quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004) (internal quotation marks and citations omitted).

With respect to the 9th Street property, it was sold on December 14, 2011 in a judicial tax sale to Guy LeRoy. See Shipley v. Tax Claim Bureau of Del. Cnty., 74 A.3d 1101 (Pa. Commw. Ct. 2013). LeRoy was represented by defendant Dignazio. Id. Shipley claims that “[d]efendants did not give Plaintiff any notice of the sale or summons.” Dkt. No. 21 at ECF p. 12. Shipley’s wife, later joined by Shipley, filed a petition to set aside the tax sale to LeRoy, arguing that the Tax Claim Bureau had “not properly serve[d] Mr. Shipley with a notice of the judicial tax sale under the Law.” Shipley, 74 A.3d at 1104. The trial court denied the petition and the Shipleys appealed to the Commonwealth Court of Pennsylvania. Id. On July 25, 2013, the Commonwealth Court reversed the trial court’s order which had denied the petition to set aside the tax sale because “[m]issing from the record certified to th[e Commonwealth] Court [was] a return from the Sheriff for the Rule to Show Cause sent to Mr. Shipley, ” as 72 P.S. § 5860.611 requires.[6] Id. at 1108. The record before the Court is insufficient to definitively explain what has happened with respect to the title of the 9th Street property since the Commonwealth Court issued its decision. It appears that on October 22, 2014, the United States Bankruptcy Court for the Eastern District of Pennsylvania entered an order modifying the stay in Shipley’s separate bankruptcy proceedings and permitting the Delaware County Tax Claim Bureau to sell the 9th Street property “at the next County Tax Sale and to take any legal or consensual action for enforcement of its right to such sale.” Dkt. No. 30 at ECF p. 10; see also In re: John S. Shipley, No. 14-17310 (Bankr. E.D. Pa.).

With respect to the sale of the Willers Road property, it appears from the docket of the tax sale matter, that defendant Dignazio represented the buyer Lauren McSorley, LLP in a tax upset sale of the property. See Dkt. No. 28-5 at ECF p. 2. Shipley, who represented himself pro se in the matter, sought to vacate the tax sale and his petition to vacate was ultimately denied. Id. at ECF p. 3. The docket does not reflect an appeal. Id.

Shipley contends that defendant Wike, “either personally or thr[ough] her employees carried out illegal functions and illegally sold or is trying to sell the two properties listed above without proper notification to the plaintiff . . . .” Dkt. No. 21 at ECF p. 12. In his amended complaint, Shipley also “asks the courts to add [defendant Bottiglieri] to the complaint” and accuses him of filing “an illegal document in the form of a Motion for relief from the stay, on my property.” Id. at ECF p. 3. Shipley claims that Bottiglieri falsely claimed to be representing Shipley in his bankruptcy proceedings. Id.

Shipley seeks relief in the form of damages “in the amount of Three million Dollars;” a declaration that Delaware County “in particular tax law, § 5860.611 service of the rule of Pa Delaware County Delinquent Tax a complaint original process such as Scire facias tax law has been deemed to have been effective without any notice being given to the property owner;” and an order requiring Delaware County to return the properties in question to him as the proper title holder. Dkt. No. 21 at ECF p. 15.


I. Jurisdiction

Defendants move for dismissal of Shipley’s complaint and amended complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. Nos. 27, 28. Before turning to the question of whether plaintiff states a claim, however, I must consider whether the Court has subject matter jurisdiction over Shipley’s claims.[7] Shipley bears the burden of persuasion on the question of subject matter jurisdiction and his complaint must be dismissed if the Court lacks subject matter jurisdiction over the matter alleged therein. See Fed.R.Civ.P. 12(b)(1), (h)(3); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

A. Rooker-Feldman Doctrine

In their motion to dismiss, the Delaware County defendants assert that Shipley’s claims should be dismissed based on the Rooker-Feldman doctrine. Dkt. No. 27-2 at ECF p. 5; see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). Defendant Dignazio argues that Rooker Feldman bars any claim arising out of the Willers Road sale. Dkt. No. 28-2 at ECF p. 13-14. “The Rooker-Feldman doctrine deprives federal district courts of jurisdiction ‘over suits that are essentially appeals from state-court judgments.’” Howell v. Young, 530 F..App’x 98, 100 (3d Cir. 2013). Where a “federal claim is inextricably intertwined with [a] state adjudication, meaning that federal relief can only be predicated upon a conviction that the state court was wrong, ” it is barred under Rooker-Feldman. In re Madera, 586 F.3d 228, 232 (3d Cir. 2009); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (finding that the Rooker- ...

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