United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION ON MOTIONS FOR SUMMARY
PARADISE BAXTER United States Magistrate Judge.
Grant Township have filed motions for summary judgment, which
breakdown as follows: Plaintiff PGE seeks summary judgment on
its own six remaining claims, as well as the counterclaim
brought by Defendant Grant Township. For its part, Grant
Township seeks summary judgment on its counterclaim. ECF No.
154; ECF No. 157.
Relevant Procedural History
Pennsylvania General Energy Company, LLC, ("PGE")
filed this action challenging the constitutionality, validity
and enforceability of an ordinance adopted by Grant Township
that established a self-styled Community Bill of Rights
Ordinance. Plaintiff seeks relief against Defendant Grant
Township on the grounds that the Ordinance purports to strip
Plaintiff of its constitutional rights. Plaintiff seeks to
enforce its federal constitutional rights through 42 U.S.C.
§ 1983. Additionally, Plaintiff contends the Ordinance
is in direct conflict with a number of Pennsylvania statutes
and is therefore preempted. ECF No. 5.
raises a counterclaim pursuant to 42 U.S.C. § 1983 and
§ 1988 against PGE, claiming that by bringing this
lawsuit challenging the Ordinance, PGE is violating the
rights of the people of Grant Township to "local
community self-government" as secured by the American
Declaration of Independence, the Pennsylvania Constitution,
the federal constitutional framework, and the Community Bill
of Rights Ordinance itself. ECF No. 10.
PGE and Grant Township filed motions for judgment on the
pleadings on some of their other claims. On October 14, 2015,
this Court granted Plaintiff PGE's motion for judgment on
the pleadings thereby invalidating six provisions of the
challenged Ordinance. ECF Nos. 113-114. Grant Township's
motion was denied. Id. Two weeks later, on November
3, 2015, the people of Grant Township voted to repeal the
Community Bill of Rights Ordinance and adopted a new Home
Rule Charter. See ECF No. 180-2.
PGE and Grant Township filed the instant motions for summary
judgment. At issue in Plaintiff PGE's present motion are
Plaintiffs remaining federal constitutional claims.
Specifically, Plaintiff PGE claims the Community Bill of
Rights Ordinance violates the Supremacy Clause, the Equal
Protection Clause, the Petition Clause of the First
Amendment, the Contract Clause, and both the substantive and
procedural components of the Due Process Clause of the United
States Constitution and seeks to enforce all of these federal
constitutional rights through 42 U.S.C. § 1983. PGE also
seeks summary judgment in its favor on Grant Township's
Township filed a motion for summary judgment on its
counterclaim that PGE violated its constitutional right to
"local community self-government." Grant
Township's motion for summary judgment seeks judgment on
its counterclaim only. Grant Township has not moved for
summary judgment on PGE's claims.
Township's and PGE's motions for summary judgment are
fully briefed and are ripe for disposition by this
Standard of Review on Motions for Summary Judgment
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted if the "movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." When applying
this standard, the court must examine the factual record and
reasonable inferences therefrom in the light most favorable
to the party opposing summary judgment. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
moving party has the initial burden of proving to the
district court the absence of evidence supporting the
non-moving party's claims. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Andreoli v.
Gates. 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health
System v. Metropolitan Life Ins. Co., 391 F.3d 497, 502
(3d Cir. 2004). The burden then shifts to the non-movant to
come forward with specific facts showing a genuine issue for
trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West
Chester. Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the
non-movant must present affirmative evidence - more than a
scintilla but less than a preponderance -which supports each
element of his claim to defeat a properly presented motion
for summary judgment). The non-moving party must go beyond
the pleadings and show specific facts by affidavit or by
information contained in the filed documents (i.e.,
depositions, answers to interrogatories and admissions) to
meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322. See also Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
determining summary judgment, a court uses a burden-shifting
scheme: When the party moving for summary judgment would
ultimately bear the burden of proof at trial, it must come
forward with evidence which would entitle it to a directed
verdict if the evidence went uncontroverted at trial. In
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the nonmoving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
procedural situation where a plaintiff (or counterclaimant)
is moving for offensive summary judgment, the movant must
produce evidence sufficient to establish each element of a
A summary judgment is neither a method of avoiding the
necessity for proving one's case nor a clever procedural
gambit whereby a claimant can shift to his adversary his
burden of proof on one or more issues. To obtain a judgment
in favor of a claimant pursuant to his complaint,
counter-claim, or cross-claim, the moving party must offer
evidence sufficient to support a finding upon every element
of his claim for relief, except those elements admitted by
his adversary in his pleadings, or by stipulation, or
otherwise during the course of pretrial. A plaintiff seeking
summary judgment who has failed to produce such evidence on
one or more essential elements of his cause of action is no
more 'entitled to a judgment' than is a plaintiff who
has fully tried his case and who has neglected to offer
evidence sufficient to support a finding on a material issue
upon which he bears the burden of proof.
Duffy v. Anderson, 2011 WL 2148855, at *2 (D. Nev.
June 1, 2011) quoting United States v. Dibble, 429
F.2d 598, 601 (9th Cir.1970) (citations omitted).
considering a motion for summary judgment, the court is not
permitted to weigh the evidence or to make credibility
determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both
genuine and material. Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 255 (1986).
PGE and Grant Township have provided scant material facts in
support of their respective motions for summary judgment. The
undisputed facts are as follows.
a private corporation in the business of exploration and
development of oil and gas. ECF No. 156, ¶ 1; ECF No.
185, ¶ 16. PGE currently owns and operates natural gas
wells in Grant Township, Pennsylvania. ECF No. 185, ¶ 1.
PGE's exploration and development activities include
drilling and operating gas wells and managing brine and other
produced fluids from operating wells. Id. at ¶
1997, PGE's predecessor in interest put into production a
deep gas well in Grant Township on property known as the
Yanity Farm. Id. at ¶ 3. PGE intends to use the
Yanity Well to inject produced fluids from its other oil and
gas operations. Id. at ¶ 8. Based on its
intention to convert the use of the Yanity Well to an
injection well for disposal of produced fluids generated at
other PGE oil and gas wells, PGE proceeded to obtain
regulatory approval for such use. Id. at ¶3.
March 19, 2014, PGE received an initial permit from the
United States Environmental Protection Agency to convert the
Yanity Well into an injection well, and on September 11,
2014, the EPA issued a final permit in this regard. ECF No.
185, ¶ ¶ 5-6.
3, 2014, Grant Township adopted the Community Bill of Rights
Ordinance. Id. at ¶ 13. The Community Bill of
Rights Ordinance expressly prohibits any corporation from
"engag[ing] in the depositing of waste from oil and gas
extraction" and invalidates any "permit, license,
privilege, charter, or other authority issued by any state or
federal entity which would violate [this prohibition] or any
rights secured by [the Ordinance], the Pennsylvania
Constitution, the United States Constitution, or other
laws." Id. at ¶ 14.
The Cross Motions for Summary judgment on Grant
turning to PGE's argument in favor of summary judgment,
the Court will first take up the Township's request for
summary judgment on its counterclaim. Grant Township's
counterclaim alleges that by challenging the Community Bill
of Rights Ordinance through the instant action, PGE is
violating the rights of the people of Grant Township to local
community self-government as secured by the American
Declaration of Independence, the Pennsylvania Constitution,
the federal constitutional framework, and the Community Bill
of Rights Ordinance itself. ECF No. 10. Grant Township seeks
to enforce this purported right to local community
self-government through 42 U.S.C. § 1983.
Township now moves for summary judgment on this counterclaim
and requests that this Court: "dismiss PGE's action
with prejudice, find Plaintiff is liable to Defendant under
§ 1983 and § 1988, with further proceedings to
determine the extent of the Plaintiffs liability to the
Defendant." ECF No. 157-1. Conversely, Plaintiff PGE
seeks summary judgment in its own favor on the counterclaim,
requesting that this Court dismiss the counterclaim. ECF No.
154-1. The summary judgment standard "does not change
when ., . the parties have filed cross motions for summary
judgment." Valley Nat'l Bank v. Ford Motor
Co., 2017 WL 1084524, at *4 (D.N.J. Mar.22, 2017)
quoting Wimberly Allison Tone & Goo, Inc. v.
Travelers Prop. Cas. Co. of Am., 559 F.Supp.2d 504, 509
(D.N.J. 2008). Cross motions for summary judgment "are
not more than a claim by each side that it alone is entitled
to summary judgment..." Id. quoting
Transportes Ferreos de Venezuela II v. NKK Corp., 239
F.3d 555, 560 (3d Cir. 2001).
may have a cause of action under § 1983 for certain
violations of its constitutional rights. Section 1983
provides, in relevant part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ...
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress ....
Id. In order to "seek relief under the United
States Constitution, a plaintiff must utilize the vehicle of
a claim under 42 U.S.C. § 1983 and may not assert claims
for relief under the United States Constitution
directly." Providence Pediatric Medical Daycare,
Inc. v. Alaigh, 112 F.Supp.3d 234, 247 (D.N.J. 2015)
citing Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906-07 (3d Cir. 1997). "By itself, § 1983 does
not create any rights, but provides a remedy for violations
of those rights created by the Constitution or federal
law." Morse, 132 F.3d at 907. See also
Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d
trial, it will be Grant Township's burden to prove both
of the following elements of its § 1983 claim by a
preponderance of the evidence:
1) That PGE acted under color of state law; and
2) While acting under color of state law, PGE deprived Grant
Township of a federal or constitutional right.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). See also
Morrow v. Balaski. 719 F.3d 160, 165-66 (3d Cir.
2013) citing Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000) (To establish a claim under 42 U.S.C. § 1983,
a plaintiff must demonstrate a violation of a right protected
by the Constitution or laws of the United States that was
committed by a person acting under the color of state law).
In order to prevail on its motion for summary judgment on its
counterclaim, Grant Township must satisfy both elements of
the same test. Gomez, 446 U.S. at 640.
PGE acted as a state actor or under color of state law
"is a threshold issue; there is no liability under
§ 1983 for those not acting under color of state
law." Groman, 47 F.3d at 638, citing
Versarge v. Township of Clinton, N.J., 984 F.2d 1359,
1363 (3d Cir. 1993).
Township has produced no actual evidence to demonstrate that
PGE is anything other than a private corporation. A private
corporation is not a state actor. See Davis v.
Noble, 2016 WL 4474004, at *4 (D.Del. 2016). Grant
Township makes no real argument to the contrary, see
Lebron v. Nat'l R.R. Passenger Corp., 513 U.S.
374 (1995). Instead, despite the evidence that shows that PGE
is a private corporation, Grant Township argues that PGE has
acted under color of state law. Generally, a private
corporation does not act under color of state law and a legal
claim against such a private actor under § 1983 fails.
See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
See also Filarsky v. Delia. 566 U.S. 377, 383 (2012)
citing Lugar v. Edmondson Oil Co.. 457 U.S. 922, 937
color of state law analysis is anchored on a basic
requirement, "that the defendant in a § 1983 action
[here, PGE has] exercised power 'possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law.'" West
v. Atkins, 487 U.S. 42, 49 (1988) quoting United
States v. Classic, 313 U.S. 299, 326 (1941). This
inquiry is fact-specific. Groman, 47 F.3d at 638.
private action is not converted into one under color of state
law simply by some tenuous connection to state action.
Id. The issue is not whether the state was involved
in some way in the relevant events, but whether the action
taken can be fairly attributed to the state itself.
Id. The Supreme Court has instructed courts to
inquire "whether the State provided a mantel of
authority that enhanced the power of the harm-causing
individual actor." NCAA v. Tarkanian, 488 U.S.
support its argument that PGE is acting under color of state
law, Grant Township theorizes:
in the instant case, depriving Grant residents of their
constitutional right of local community self-government
requires many hands - the hands of the state in the legal
creation of the Plaintiff company, the action of the state in
its permit and regulatory capacity to enable PGE to construct
and operate its proposed frack wastewater injection well, and
the hands of state and federal government to bestow certain
legal and constitutional powers and rights onto the
Plaintiff. Indeed, the instant action really was filed at the
end of a long chain of state and federal events without which
the action would not have been possible. So, the instant
action is merely one of enforcement - PGE's enforcement
of pre-existing rights and protections that have been created
and recognized by both state and federal authority.
Thus, in addition to PGE being a creature of the state - a
company whose form and very existence resulted from state
action - the state has enabled and protected PGE to do what
it seeks to do in the instant matter. That "overt"
and "significant" state action thereby transforms
what the law has generally treated as a "private"
business entity into one almost completely dependent upon
state power and authority to carry out projects harmful to
the community in which it seeks to operate. For all intents
and purposes, including for liability pursuant to §
1983, PGE therefore acts under the "color of state
law" when it seeks to enforce its corporate
constitutional "rights" against the people of Grant
ECF No. 158, pages 23-24. The specific points of this
argument require some precise extraction. Distilled down,
Grant Township argues that PGE is a state actor because: 1)
the state created it through its incorporation law; 2) the
state granted permits to the company and regulates the
construction and operations of its proposed injection well;
and 3) the state and federal governments have given the
corporation certain unnamed legal and constitutional rights.
These arguments are insufficient to deem PGE a state actor.
even if there was evidence that PGE was incorporated under
Pennsylvania law, such an incorporation does not transform
PGE into a state actor. Doug Grant, Inc. v. Great
Bay Casino Corp., 232 F.3d 173, 189 (3d Cir.
2000) (mere fact of incorporation does not transform the
entity into a state actor). Second, it is well settled that a
private corporation is not a state actor simply because it is
subject to state regulation. Blum v. Yaretsky, 457
U.S. 991, 1004, 1011 (1982) ("[The] mere fact that a
business is subject to state regulation does not by itself
convert its action into that of the State"); Jackson
v. Metro. Edison Co., 419 U.S. 345, 350 (1974);
Rendell- Baker, 457 U.S. at 841 (finding that state
regulation, no matter how extensive, does not make an
organization's actions state actions); Doug
Grant, 232 F.3d at 173 (regulation and licensing of
casino activities did not transform casinos into state actors
for purposes of § 1983); Bethel v. Jendoco Constr.
Corp., 570 F.2d 1168 (3d Cir. 1978) (the fact that
construction companies were protected and regulated as
"legal entities" of the State was insufficient to
bring the conduct of these companies within the purview of
§ 1983, even if these companies received a portion of
their income from projects financed, in whole or in part, by
state governmental agencies). See also White v. St.
Joseph's Hosp.. 369 Fed.Appx. 225, 226 (2d Cir.
2010) (licensing by the state alone does not render the
licensee a state actor); Gipson v. Rosenberg, 797
F.2d 224, 225 (5th Cir. 1986), cert,
denied, 481 U.S. 1007 (1987) (business does not
become a state actor because it is granted a license by the
Grant Township alleges that PGE is a state actor because both
the federal and state governments have given certain
unidentified legal and constitutional powers and rights to
the corporation. The Township offers no specifics here,
failing to explain which powers and rights it sees as
establishing state action. The determination whether a
private entity like PGE qualifies as a state actor
"hinges on whether there is such a close nexus between
the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State
itself." Glunk v. Noone, 186 F.Supp.3d 453, 460
(E.D. Pa. 2016) citing Kach v. Hose, 589 F.3d 626,
646 (3d Cir. 2009). Grant Township's nearly bald
assertions that unspecified laws or enactments by the
Commonwealth of Pennsylvania cannot establish this close
nexus and, therefore, are insufficient to establish PGE as a
all of Grant Township's arguments in favor of state
action are contrary to established law. See Angelico v.
Lehigh Valley Hosp., Inc.. 184 F.3d 268, 277 (3d Cir.
1999), quoting Lugar, 457 U.S. at 937 (noting that
"[w]ithout a limit such as this [the precedent on acting
under color of state law], private parties could face
constitutional litigation whenever they seek to rely on some
state rule governing their interactions with the community
surrounding them."). Since the Township offers no other
basis on which this Court could conclude that PGE acted under
color of state law, the Township's § 1983 claim for
a violation of its "rights to local
self-government" fails as a matter of law.
Grant Township's motion for summary judgment will be
denied and PGE's motion for summary judgment will be
granted on this counterclaim. Such a judgment is appropriate
"as a matter of law" when the non-moving party has
failed to make an adequate showing on an essential element of
his or her case, as to which he or she has the burden of
proof. See Celotex Corp., 477 U.S. at 322-23.
PGE's Motion for Summary Judgment
Court now takes up PGE's motion for summary judgment on
all six of its federal constitutional claims and its request
for a trial on damages.
Comprehensive Arguments in opposition to PGE's motion ...