Opinion
CIV NO. 3:15-CV-960
07-17-2018
ALEXANDER BRUNELLE, et al., Plaintiffs, v. CITY OF SCRANTON, et al., Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Factual Background
The plaintiff in this litigation, Alexander Brunelle, is a real estate contractor and developer who initiated this lawsuit on May 15, 2015, and is now bringing an eleven-count complaint against the City of Scranton, Patrick Hinton, Director of the City of Scranton Department of Licensing and Patricia Jennings-Fowler, a Housing Inspector for the City of Scranton, charging them with a host of illegal and arbitrary actions allegedly taken relative to the plaintiff's business activities and properties in Scranton. (Doc. 28.)
Brunelle's complaint is a detailed, 67 page, 273 paragraph pleading. (Id.) In it, Brunelle provides a lengthy factual recital describing a pattern of allegedly discriminatory conduct by the defendants targeting properties owned by the plaintiff. (Id., ¶¶30-195.) According to Brunelle, the defendants targeted at least eleven properties which he owned, and engaged in a wide array of discriminatory practices. (Id.) Thus, Brunelle alleges that the defendants singled him out for discriminatory non-traffic criminal citations, issuing more than 150 baseless criminal complaints against Brunelle and properties which he owned. (Id., ¶194(e).) Brunelle also alleges that the defendants issued baseless condemnation orders on various properties which he owned, condemning properties even after the properties had been inspected and approved for occupancy. (Id., ¶¶30-195.) Brunelle further avers that Fowler and Hinton issued arbitrary, contradictory and peremptory directives to the plaintiff which stymied efforts to renovate, market and rent these properties. For example, according to Brunelle, with respect to a property owned by the plaintiff on Lavelle Street in Scranton, in April of 2014 defendant Fowler simultaneously served stop work and mandate orders on the property. The stop work order required the plaintiff to cease operations immediately; the mandate order required him to correct deficiencies at the property immediately. By issuing both orders simultaneously, Brunelle asserts that the defendants "put Plaintiff in an absurd situation as Plaintiff was prohibited from working on the property pursuant to the Stop Work Order but simultaneously required to address the alleged trash and sanitation violations immediately." (Id., ¶143.)
The complaint further avers that the defendants have issued demolition orders to arbitrarily frustrate Brunelle's business endeavors. Specifically, Brunelle contends that the defendants issued demolition orders on properties acquired by the plaintiff in December 2014, thus preventing the plaintiff from making any improvements or renovations to the property, but had yet to act upon these demolition orders as of June, 2017. (Id.,¶¶167-77.) Brunelle further asserts that the defendants have arbitrarily denied licenses and permits to the plaintiff's brother, Theodore Brunelle, who served as an independent contractor on many of the plaintiff's renovation projects in order to deter and frustrate those projects. (Id., ¶194(d).)
According to Brunelle, many of these actions have been taken by the defendants without affording Brunelle any notice or opportunity to respond to alleged deficiencies. (Id., ¶¶30-195.) Moreover, Brunelle claims that both Fowler and Hinton have made statements which confirm their discriminatory bias against the plaintiff, including allegedly informing the plaintiff's employees that their actions are designed to send a message to the plaintiff, or deter the plaintiff and his family members from filing lawsuits. (Id., ¶¶190, 194(d).)
Brunelle also specifically alleges that Defendant Fowler has engaged in disparate and discriminatory enforcement targeting his properties, by describing a pattern of disparate code enforcement by Fowler as compared to all other city inspectors. (Id., ¶¶30-40.) Finally, Brunelle alleges that this pattern of unlawful and discriminatory conduct increased after the plaintiff filed his initial complaint in federal court. (Id., ¶¶194(a)-194(i).) Furthermore, according to Brunelle, a city employee informed one of the plaintiff's employees: "that Patrick Hinton had instructed that no permits were to be issued for work by Theodore Brunelle while his brother's Alexander Brunelle's lawsuit was pending in the Federal Court." (Id., ¶194(d).)
Set against the backdrop of these well-pleaded facts, Brunelle brings eleven separate claims against the defendants. Six of these counts allege federal constitutional infractions. Specifically, Brunelle alleges that the conduct of these officials: (1) denied the plaintiff procedural due process (Id., Count 1 ¶¶195-209); (2) constituted a substantive due process violation, (Id., Count 2, ¶¶210-15); (3) violated Brunelle's right to equal protection under the law, (Id., Count 3, ¶¶216-26); (4) was taken in retaliation against Brunelle for exercising his First Amendment Right to petition the courts for redress of grievances, (Id., Count 4, ¶¶227-231); (5) amounted to an unlawful and unconstitutional taking of property without just compensation, (Id., Count 5, ¶¶232-6); (6) entailed unreasonable searches and seizures in violation of the Fourth and Fourteenth Amendments, (Id., Count 6 ¶¶237-45); and (7) constituted malicious prosecution in violation of the plaintiff's constitutional rights. (Id., Count 8, ¶¶253-57.) Brunelle further alleges that the City of Scranton is legally responsible for the actions of its officers and employees because by failing to adequately train and oversee the actions of these employees, the city effectively fostered a custom, policy and practice of illegal discrimination. (Id., Count 7, ¶¶246-52.) Brunelle's complaint then asserts a series of pendant state law tort claims, including state law allegations of malicious prosecution (Id., Count 9, ¶¶258-62); abuse of process, (Id., Count 10, ¶¶263-67); and tortious interference with existing and prospective contractual relationships. (Id., Count 11, ¶¶268-73.)
The defendants have now moved to dismiss seven of these claims, (Doc. 30), arguing that Brunelle's detailed complaint fails to state a claim upon which relief may be granted with respect to Brunelle's equal protection, unlawful taking, malicious prosecution, abuse of process, and interference with contractual relations claims. The defendants also contend that the well-pleaded facts set forth in this 273 paragraph complaint are insufficient to establish a colorable claim of municipal federal civil rights liability against the City of Scranton. This motion is fully briefed, (Docs. 34 and 37), and is, therefore, ripe for resolution.
The defendants have also filed a motion for partial summary judgment which relates to some of the claims in this complaint. (Doc. 44.) We will address that motion through a separate Report and Recommendation.
For the reasons set forth below, with one exception, it is recommended that this motion to dismiss be denied. The one exception to this recommendation relates to Count V of Brunelle's complaint which brings a claim under the Takings Clause to the Fifth Amendment. While the defendants have moved to dismiss this claim arguing that Brunelle is required as a matter of law to exhaust his state remedies for just compensation prior to bringing a Takings Clause claim in federal court; see Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)), the United States Supreme Court has recently accepted a petition for writ of certiorari which invites the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases. See Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). Given this recent action by the Supreme Court, it is submitted that this Court should stay further action with respect to the motion to dismiss this particular claim pending the Supreme Court's decision in Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). See Miller v. Trans Union, LLC, No. 3:12-CV-1715, 2015 WL 13649106, at *2 (M.D. Pa. Aug. 3, 2015)(Granting stay pending Supreme Court decision).
II. Discussion
A. Motion to Dismiss —Standard of Review
The defendants have filed a motion to dismiss this complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[After Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11. The Third Circuit has further observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief."'"Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. 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.Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. The Plaintiff's Equal Protection Claim is Not Subject to Dismissal on the Pleadings.
At the outset, in this motion to dismiss the defendants challenge the legal sufficiency of Brunelle's equal protection claim, Count III of the complaint. The Equal Protection Clause of the Fourteenth Amendment directs that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. As we construe it, Brunelle's equal protection claim in this case is essentially what is called a "class of one" claim, an assertion that the plaintiff has been treated differently than all others in some invidious fashion. On this score, "cases have recognized successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d 1060 (2000). However, the legal standard to be applied when examining such a claim in the context of a land use dispute is an exacting one, and has been defined by the United States Court of Appeals for the Third Circuit in the following terms:
The Supreme Court has held that a " 'class of one' " can attack intentionally different treatment if it is " 'irrational and wholly arbitrary.' " Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal citations omitted) (per curiam). . . . The "irrational and wholly arbitrary" standard is doubtless difficult for a plaintiff to meet in a zoning dispute, id. at 565-66 (Breyer, J., concurring), and we do not view an equal protection claim as a device to dilute the stringent requirements needed to show a substantive due process violation.Eichenlaub v. Township of Indiana, 385 F.3d 375, 286-87 (3d Cir. 2004).
In order to sustain a "class of one" equal protection claim "a plaintiff must allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir.2006). So, to state a claim for 'class of one' equal protection, a plaintiff must at a minimum allege that he was intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment." Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
As to this first element—the requirement that the plaintiff be treated differently from others similarly situated—it has been held that:
While " '[p]ersons are similarly situated under the Equal Protection Clause when they are alike in all relevant aspects,' " Mun. Revenue Servs., Inc. v. McBlain, 347 Fed.Appx. 817, 825 (3d Cir.2009) (quoting Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir.2008)), "the law in the Third Circuit does not require [the plaintiff] to show that the [comparators] are identical in all relevant respects but only that they are alike." Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.Supp.2d 616, 628 (W.D.Pa.2012) (citing Startzell, 533 F.3d at 203); see also Simmermon v. Gabbianelli, 932 F.Supp.2d 626, 632-33 (D.N.J.2013); Thomas v. Coopersmith, No. 11-7578, 2012 WL 3599415, at *5 (E.D.Pa. Aug. 21, 2012). "Determining whether an individual is 'similarly situated' to another individual is a case-by-case fact-intensive inquiry." Chan v. Cnty. of Lancaster, No. 10-3424, 2011 WL 4478283, at *15 (E.D.Pa. Sept. 26, 2011) (citing Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir.2004)).Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013).
Further, once a plaintiff has shown that he suffered some measure of disparate treatment as compared to others who were similarly situated, in order to ultimately prevail on a "class of one" equal protection:
[A] plaintiff must show that the differential treatment was "irrational and wholly arbitrary." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir.2004) (quoting Olech, 528 U.S. at 564, 120 S.Ct. 1073) (internal quotation marks omitted). "These challenges fail when 'there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' " Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. 251, 259 (3d Cir.2010) (quoting Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)).Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 85 F. Supp. 3d 803, 811 (M.D. Pa. 2015), aff'd, 656 F. App'x 1 (3d Cir. 2016).
This rational basis test imposes only a minimal burden of justification upon those who are defending some government action. " '[R]ational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness or logic" ' of government activity. Heller v. Doe by Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), quoting FCC v. Beach Comm'cns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). 'These challenges fail when 'there is any reasonably conceivable state of facts that could prove a rational basis for the classification.'" Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 705 (E.D. Pa. 2017), aff'd, No. 17-1675, 2018 WL 1167524 (3d Cir. Mar. 6, 2018)(citations omitted).
While the ultimate burden of proof and persuasion on a class of one equal protection claim is very exacting, we are not called upon at this time to evaluate the ultimate merits of this claim. Instead, when considering a motion to dismiss our task is simply to assess the sufficiency of the plaintiff's pleading, which entails determining whether the plaintiff's complaint satisfies a "plausibility standard [which] requires the complaint to allege enough facts to state a claim to relief that is plausible on its face." Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
With our review confined to the well-pleaded facts set forth in the complaint itself, and our evaluation limited to an assessment of whether those well-pleaded facts state a plausible claim for relief, we find that Brunelle has sufficiently alleged a class of one equal protection claim. Fairly construed, the detailed factual recital set forth in the complaint describes a singular pattern of disparate conduct which resulted in tangible injuries for Brunelle. In particular, Brunelle's complaint contains a factual recital which describes in some detail how he was singled out by Defendant Fowler for discriminatory treatment which differed from the treatment he received from other inspectors and city officials. (Doc. 28, ¶¶30-40.) Thus, far from merely alleging the elements of a cause of cause in some cursory fashion, Brunelle's complaint provides factual details in support of this equal protection claim. Whether Brunelle can prove what he has pleaded remains to be seen, but at this stage of the litigation, where we are limited to assessing the quality of his pleadings rather than the quantity of his evidence, we find that Brunelle has stated a plausible equal protection claim. Therefore that claim is not subject to summary dismissal on the pleadings alone.
C. The Plaintiff's Monell Municipal Liability Claim May Not be Dismissed on the Pleadings
In the same vein, the defendants argue that Count VII of the plaintiff's complaint, which levels a municipal liability claim against the City of Scranton, also fails as a matter of law. Once again, the defendants' argument is premised on their view that this extensive, and detailed, complaint consists of little more than labels and the talismanic recital of the elements of a claim.
We disagree. The principles which define institutional, agency civil rights liability while exacting, are well-settled. As we have observed in the past:
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("Monell "), the Supreme Court held that a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional injury that directly resulted from a municipality's policy, custom, or practice. Id. at 695, 98 S.Ct. 2018. Accordingly, a Monell claim seeks to impose municipal liability for a constitutional injury that was causally connected to a municipal policy, custom, or practice. See id.; see also Carreno v. City of Newark, 834 F.Supp.2d 217, 231 (D.N.J.2011). "Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir.2007). Instead, "it is when execution of a government's policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018).It is essential to a Monell claim that there be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation" in order to establish municipal liability. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).Hunter v. Prisbe, 984 F. Supp. 2d 345, 353 (M.D. Pa. 2013)(denying motion to dismiss Monell claim).
Furthermore, case law construing Monell makes it clear that a single act by an agency head can define agency policy or custom and establish institutional civil rights liability. Thus, "a government policy or custom can be established in two ways. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.1990). The Plaintiffs may establish a government policy by showing that a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issued an official statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Plaintiffs may establish that a course of conduct constitutes a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' that they operate as law. Monell, 436 U.S. at 690, 98 S.Ct. 2018. In either instance, the Plaintiffs have the burden of showing that a government policymaker is responsible by action or acquiescence for the policy or custom. Andrews, 895 F.2d at 1480." Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007).
As the Supreme Court has observed: "it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986). In this setting institutional liability attaches whenever the decisionmaker possesses final authority to establish policy with respect to the action ordered. Id. at 481. "Accordingly, proof that a[n agency's] authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the [agency] acted culpably. Similarly, the conclusion that the action taken or directed by the . . . authorized decisionmaker itself violates federal law will also determine that the [agency] action was the moving force behind the injury of which the plaintiff complains." Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 1389, 137 L. Ed. 2d 626 (1997).
These tenets of agency liability law for civil rights violations control here and call for the denial of the city's motion to dismiss these institutional liability claims. As we view the plaintiff's complaint, it alleges a pattern of misconduct by Fowler, a pattern of misconduct that Brunelle alleges was specifically and repeatedly brought to the attention of both the mayor, and defendant Hinton, Fowler's supervisor and the head of the city's Department of Licensing, Inspections and Permits. Further, despite what Brunelle describes as repeated notice of these actions, the complaint alleges that these agency decision-makers permitted, and in the case of Defendant Hinton, actively encouraged further misconduct. Thus, Brunelle has sufficiently alleged a pattern of conduct, undertaken with the acquiescence of city policymakers to state a plausible Monell municipal liability claim.
Moreover, the complaint seems to allege that Defendant Hinton, as the Director of the Department of Licensing, Inspections and Permits, was the final decision-maker for the city on many of these enforcement matters. Further, the complaint describes in detail Hinton's personal involvement in these alleged constitutional infractions. Recognizing that "it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances," Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452 (1986), the actions ascribed by Brunelle to Hinton, as Director of the department of Licensing, Inspections and Permits, standing alone may be sufficient to establish municipal liability in this case.
In any event, given the detailed factual recitals set forth in this complaint, it is apparent that resolution of the ultimate merits of any Monell claim will require examination of matters beyond the pleadings, a task which cannot be undertaken at this time in the context of a motion to dismiss. Therefore, this motion to dismiss should be denied, without prejudice to consideration of this issue on a fully developed factual record through a motion for summary judgment.
D. Resolution of the Merits of Brunelle's Malicious Prosecution Claims May Require a Case-By-Case Assessment of the Outcome of More Than 100 Citations Filed Against the Plaintiffs , a Task Which Falls Beyond the Scope of a Motion to Dismiss .
The defendants also seek the dismissal of dismissal of Counts VIII and IX of the complaint, which allege malicious prosecution claims, both as civil rights violations under §1983 and as pendant state tort law claims. The basis of this motion to dismiss is the defendants' assertion that some of the various criminal and have not been terminated favorably for Brunelle. Citing the favorable termination requirement that exists for malicious prosecution claims, the defendants insist that Brunelle's failure to sufficiently allege a favorable termination of these various citations is fatal to these malicious prosecution claims.
To be sure, " 'our precedents are clear that § 1983 plaintiffs alleging arrest and prosecution absent probable cause may bring malicious prosecution claims under the Fourth Amendment, but are entitled to relief only if they are innocent of the crime for which they were prosecuted.' Washington v. Hanshaw, 552 Fed.Appx. 169, 173 (3d Cir. 2014) (citing Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) ). Therefore, 'a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case.' Steele v. City of Erie, 113 Fed.Appx. 456, 459 (3d Cir. 2004)." Miles v. Zech, No. 3:18-CV-1061, 2018 WL 3214262, at *6 (M.D. Pa. May 23, 2018), report and recommendation adopted, No. CV 3:18-1061, 2018 WL 3207381 (M.D. Pa. June 29, 2018). The state law analogue tort of malicious prosecution similarly imposes a favorable termination requirement upon plaintiffs. Therefore, "[i]n order to successfully state a claim under Pennsylvania law for malicious use of process, commonly referred to as malicious prosecution, the claim must allege (1) that a person who participated in the underlying proceedings acted in a grossly negligent manner or without probable cause; (2) that the person acted with a malicious purpose; and (3) that the proceedings were terminated in favor of the defendant in the underlying proceeding. 42 Pa.C.S.A. § 8351(a)(1) and (2); Shaffer v. Stewart, 326 Pa.Super. 135, 140, 473 A.2d 1017 (1984)." Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 230-31, 582 A.2d 27, 29-30 (1990)(emphasis added).
Thus, while it is clear that a favorable termination requirement exists for a malicious prosecution claim whether grounded on state law or pursued as a federal civil rights violation, what is less clear is whether the defendants can avail themselves of this doctrine in any meaningful way at this time, when we are only considering sufficiency of the pleadings. We say this because Brunelle has alleged multiple episodes of allegedly malicious citations involving instances at different properties which allegedly took place at disparate and diverse times. (Dos. 28, ¶¶30-273.) Furthermore, in many instances, it is alleged that the state proceedings were terminated favorably for Brunelle. For example, Brunelle alleges that, with respect to these citations, "nearly all, except for those currently pending, have been dismissed for lack of any legitimate basis in fact or in law." (Id., ¶39.) The plaintiffs contend that: "Since the date of the Initial Complaint, Defendants have filed over 150 baseless criminal complaints against the Plaintiffs, and have expanded their list of targets to include addition properties owned, controlled or managed by Plaintiff Alexander Brunelle," (Id., ¶194(e)), and aver that: "None of the more than 100 complaints issued by Defendants against Plaintiffs over the course of several years has been finally adjudicated as valid by a court of law. Many are still pending" (Id., ¶194(f).) (emphasis in original).
Given these well-pleaded facts, in our view, the sheer volume of these alleged citations, the multiplicity of locations allegedly cited, and the fact that the citations involve discrete acts at disparate times, all combine to prevent us from reaching any judgments on the merits of these claims as a matter of law based solely upon the pleadings themselves. Rather, this task must also await another day, and another proceeding where we may consider matters beyond this pleadings. In short, finding that the complaint alleges that every fully-adjudicated citation lodged against the plaintiff and his properties by the defendants has been favorably adjudicated by Brunelle, we conclude that the defendants—who are alleged to have lost dozens of these citations—cannot assert that they are entitled to dismissal of this claim under the favorable termination rule.
E. Brunelle's Abuse of Process Claim May Not Be Dismissed on the Pleadings
The defendants also seek dismissal of Brunelle's state law abuse of process tort claim. At this stage of the proceedings, where we are strictly confined to an evaluation of the well-pleaded facts set forth in the complaint, we believe that the allegations made by the plaintiffs are sufficient to state a claim for abuse of process. With respect to this claim, it is well-settled that:
Under Pennsylvania law, "[t]he gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it[.]" McGee v. Feege, 535 A.2d 1020, 1023, 517 Pa. 247, 253 (Pa.1987) (quoting Publix Drug Co. v. Breyer Ice Cream Co., 32 A.2d 413, 415, 347 Pa. 346, 349-50 (Pa.1943)). Among other prerequisites, a claim for abuse of process requires a plaintiff to establish that the defendant used a legal process against the plaintiff primarily to accomplish a purpose for which the process was not designed. Hart v. O'Malley, 436 Pa.Super. 151, 647 A.2d 542, 551 (Pa.Super.Ct.1994); Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (Pa.Super.Ct.1993). To satisfy the "perversion of process" element, the plaintiff must show "[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process." Id. at 170-71, 627 A.2d 190 (quoting Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017, 1019 (Pa.Super.Ct.1984)). Furthermore, "there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Id. As the Third Circuit Court of Appeals noted, "the point of liability is reached when 'the utilization of the procedure for the purpose for
which it was designed becomes so lacking in justification as to lose its legitimate function as a reasonably justifiable litigation procedure .' " Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 308 (3d Cir.2003). . . . Thus, wide latitude is given to those who turn to legal processes as a means to accomplish a host of results.Taliaferro v. Darby Township Zoning Board, No. 03-3554, 2008 WL 2078992. *8 (E.D. Pa. May 15, 2008). Therefore, since the "tort of 'abuse of process' is defined as the use of a legal process against another 'primarily to accomplish a purpose for which it is not designed' [in order to] establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.' Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super.1998) (citations omitted)." O'Hara v. Hanley, No. 08-1393, 2009 WL 2043490, *11 (W.D.Pa. July 8, 2009).
In short, in order to state a valid state claim for abuse of process under Pennsylvania law the plaintiffs must allege facts that show that the legal process was used "primarily to accomplish a purpose for which the process was not designed." Id. Put another way, the gravamen of this state law tort is "use [of] legal process as a 'tactical weapon to coerce a desired result that is not the legitimate object of the process.' Gen. Refractories v. Fireman's Fund Ins., 337 F.3d 297 (3d Cir.2003) (quoting McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1026 (Pa.1987))." O'Hara v. Hanley, supra, 2009 WL 2043490, *12. Construed in this way, the state tort of abuse-of-process requires a plaintiff to plead facts which show that the use of some legal process was not designed to accomplish its stated goal, but rather was intended and perverted to some other goal, solely to harass.
This is a demanding showing which ultimately must be made to prevail on an abuse of process claim, but as a matter of pleading we find that the complaint, which alleges the use of conflicting, contradictory and allegedly discriminatory and retaliatory citations, demolition orders, condemnation orders, stop work and mandate orders by the defendants solely to harass the plaintiffs, sufficiently states a plausible state law tort claim. We also reject the defendants' suggestion that a malicious prosecution claim in some fashion precludes the plaintiff from also pursuing a claim for abuse of process. Quite the contrary, courts that have considered this issue recognize that these two torts, while closely related to one another, entail different elements of proof. See Brown v. Johnston, 675 F. Supp. 287, 290 (W.D. Pa. 1987). Therefore, there is nothing inherently contradictory about a plaintiff pursuing both claims in a single lawsuit.
Finally, we note that the gist of this tort of abuse of process relates to matters of motive. Such questions of human motivation are rarely amenable to resolution on a motion to dismiss, where the scope of our review is confined to the pleadings themselves. With our scrutiny limited to the averments in the complaint, we find that Brunelle has sufficiently alleged the elements of this state law tort.
F. Brunelle's Tortious Interference Claim is Not Subject to Dismissal
Likewise, in this motion the defendants seek dismissal of Count XI of the complaint, which alleges a state tort of tortious interference with prospective contractual relationships. Once again, the gravamen of the motion to dismiss is an assertion that these prospective contractual relationships have not been described with sufficient specificity to permit this claim to proceed forward.
The legal benchmarks that govern this state tort claim are well-settled:
Under Pennsylvania law, to prevail on a claim for tortious interference with existing or prospective contractual relationships, a party must prove: (1) the existence of a contractual or prospective contractual or economic relationship between the plaintiff and a third party; (2) purposeful action by the defendant, specifically intended to harm an existing relationship or intended to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; (4) legal damage to the plaintiff as a result of the defendant's conduct; and (5) for prospective contracts, a reasonable likelihood that the relationship would have occurred but for the defendant's interference. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 530 (3d Cir.1998).
As the foregoing formulation of the components of a tortious interference claim makes clear, Pennsylvania distinguishes between claims for interference with existing contractual relations and claims for interference with prospective contractual relations. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 470-71 (1979). . . . ..
In determining whether there is a prospective contractual relationship in a tortious interference case, Pennsylvania courts have considered
whether the evidence supports a finding that there was an objectively "reasonable likelihood or probability" that the contemplated contract would have materialized absent the defendant's interference. See Glenn v. Point Park Coll., 441 Pa. 474, 272 A.2d 895, 898-99 (1971); Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir.1997). A "reasonable likelihood" of occurrence is something less than a contractual right but more than a mere hope that there will be a future contract. Phillips v. Selig, 959 A.2d 420, 428 (Pa.Super.Ct.2008). Furthermore, a plaintiff must base its claim that there was a prospective contractual relationship on something other than an existing or current relationship. Id. at 429.
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 212-13 (3d Cir. 2009).
Judged by these guideposts, we have little difficulty in concluding that the plaintiff has sufficiently alleged this state law tort. In particular, we believe that Brunelle's complaint adequately describes the prospective contractual relationships which he alleges were the subjects of this tortious interference. For example, according to Brunelle, a meritless demolition order posted by the defendants on a Lackawanna Avenue property owned by Brunelle, "has prevented Plaintiffs from securing prospective lenders, investors, buyers or tenants as to ensure the building's rehabilitation and continued existence." (Doc. 28, ¶177.) Indeed, the exhibits to Brunelle's complaint identify a specific prospective tenant with whom Brunelle alleges he was not able to enter into a contractual relationship due to the allegedly wrongful acts of the defendants. (Id., Exhibit Z-23.) At the pleadings stage, we believe that these allegations are sufficient to support a finding that there was an objectively "reasonable likelihood or probability" that the contemplated contract would have materialized absent the defendant's interference. See Glenn v. Point Park Coll., 441 Pa. 474, 272 A.2d 895, 898-99 (1971). Therefore, the motion to dismiss this claim on the pleadings fails.
G. Consideration of Brunelle's Fifth Amendment Takings Clause Claim Should Be Stayed
Finally, in Count V of this complaint the plaintiff brings what we construe as a Fifth Amendment Takings Clause claim, alleging that the defendants' interference with his property rights was so egregious that it rose to the level of a confiscatory taking of the property with just compensation, in violation of the Fifth Amendment.
The Takings "Clause of the Fifth Amendment provides: '. . . nor shall private property be taken for public use without just compensation.' It applies to the States as well as the Federal Government. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980)." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 307, n.1, 122 S. Ct. 1465, 1470, 152 L. Ed. 2d 517 (2002). The defendants have moved to dismiss this claim, arguing that Brunelle is required as a matter of law to exhaust his state court remedies seeking just compensation prior to bringing a Takings Clause claim in federal court. See Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-96 (1985)).We note, however, that the United States Supreme Court has recently accepted a petition for writ of certiorari which invites the Court to set aside this state court exhaustion and ripeness requirement in Takings Clause cases. See Knick v. Twp., No. 3:14-CV-02223, 2016 WL 4701549, at *5 (M.D. Pa. Sept. 8, 2016), aff'd sub nom. Knick v. Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). In light of this recent action by the Supreme Court, it is submitted that this Court should stay further action with respect to the motion to dismiss this particular claim pending the Supreme Court's decision in Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). See Miller v. Trans Union, LLC, No. 3:12-CV-1715, 2015 WL 13649106, at *2 (M.D. Pa. Aug. 3, 2015)(Granting stay pending Supreme Court decision).
Because this case involves multiple claims, many of which would not be affected by the Supreme Court's decision in Knick, it is submitted that any stay should be only a partial stay and should relate exclusively to the Takings Clause claim. Thus, the parties should be free to litigate their remaining claims, pending clarification from the Supreme Court regarding the exhaustion requirement for Takings Clause claims. --------
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to dismiss (Doc. 30), be DENIED with respect to all claims except for the plaintiff's Taking Clause claim in Count V of the complaint. As to this claim only IT IS RECOMMENDED that the case be STAYED pending the Supreme Court's clarification of the question of whether state court exhaustion is needed prior to bringing a Takings Clause claim in federal court.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 17th day of July, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge