Opinion
No. 1305 C.D. 2012 No. 1306 C.D. 2012 No. 1307 C.D. 2012 No. 1308 C.D. 2012
04-04-2013
Carolyn J. Florimonte, Appellant v. William Salva Carolyn J. Florimonte, Appellant v. Lorraine Daniels Carolyn J. Florimonte, Appellant v. William Brandt Carolyn J. Florimonte, Appellant v. Aaron Holzman
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS
In these consolidated appeals, Carolyn J. Florimonte (Appellant) alleges that the Lackawanna County Court of Common Pleas (Trial Court) erred as a matter of law in granting the preliminary objections of William Salva, Lorraine Daniels, William Brandt, and Aaron Holzman (collectively Appellees) and dismissing Appellant's amended complaints with prejudice. Discerning no error, we affirm.
In reviewing a grant of preliminary objections by the trial court, our standard of review is de novo and our scope of review is plenary. Keller v. Scranton City Treasurer, 29 A.3d 436, 443 n. 12 (Pa. Cmwlth. 2011). In addition, we accept as true all well-pleaded material facts and inferences reasonably deduced therefrom. Id. Preliminary objections in the nature of a demurrer should be sustained only where the pleadings are clearly insufficient to establish a right to relief; any doubt must be resolved in favor of overruling the demurrer. Boyd v. Rockwood Area School District, 907 A.2d 1157, 1163 n.8 (Pa. Cmwlth. 2006).
Appellant filed her complaints in these actions in January 2011. Appellant's claims arise from allegations of harm to her property due to the artificial conveyance of excess storm water onto her property. Appellees filed preliminary objections alleging legal insufficiency and lack of conformity to law. By August 31, 2011 orders, the Trial Court granted Appellees' preliminary objections and granted Appellant twenty (20) days to file amended complaints. Appellant filed amended complaints in September 2011 and Appellees again filed preliminary objections alleging, among other things, lack of specificity and legal insufficiency or demurrer. On June 6, 2012, following briefing and argument, the Trial Court issued a consolidated opinion and orders in the actions against Appellees dismissing Appellant's complaint with prejudice. Judgments were entered in favor of Appellees on June 20, 2012, and Appellant appealed to this Court.
In her first amended complaints, Appellant alleges the following three claims for relief against Appellees as private individuals:
Count I. For conspiracy to Deprive Plaintiff of Property in violation of the United States Constitution, Amendment XIV, Section 1, and the Constitution of the Commonwealth of Pennsylvania Section 1 and 10, cognizable under Title 42 U.S.C.S. Section 1982 and 1983.(See Amended Complaint - Salva, Docket No. 2011-CV-404, at p. 6, 7, 8, Reproduced Record (R.R.) at 52a-54a; Amended Complaint - Daniels, Docket No. 2011-CV-405, at p. 6, 8, R.R. at 54b, 56b; Amended Complaint - Brandt, Docket No. 2011-CV-570, at p. 6, 8, R.R. at 54c, 56c; Amended Complaint - Holzman, Docket No. 2011-CV-571, at p. 6, 7, 8, R.R. at 54d-56d.)
Count II. For conspiracy to Interfere with Civil Rights by Obstructing Justice and Injuring Plaintiff and her Property, in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania, cognizable under Title 42, U.S.C.S. Sections 1985(2) and (3).
Count III. For Conspiracy to Make Fraudulent Claims for the Purpose of Taking and Using Plaintiff's Property, and Neglect or Failure to Prevent Conspiracy, in violation of the Constitutions of the Commonwealth of Pennsylvania and the United States, cognizable in Title 42, U.S.C.S. Section 1982, 1983, 1985 and 1986.
Appellant does not address in her brief why her claims under sections 1982, 1985, and 1986 of the Civil Rights Act should not have been dismissed. 42 U.S.C. §§ 1982, 1985, 1986. As a result, she has waived her right to challenge the dismissal of these claims. Purple Orchid, Inc., v. Pennsylvania State Police, 572 Pa. 171, 177, 813 A.2d 801, 804 (2002); Balletta v. Spadoni, 47 A.3d 183, 194 (Pa. Cmwlth. 2012).
In evaluating the counts alleged in the amended complaints, the Trial Court first concluded that Appellant failed to state a claim for relief under 42 U.S.C. § 1983 (section 1983). To state a cause of action under section 1983, a plaintiff must plead facts in support of two essential elements: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Palmer v. Bartosh, 959 A.2d 508, 514 (Pa. Cmwlth. 2008). Appellant argues in her brief that by stating in each complaint that Appellees were "Fraudulently claiming a non-existent easement on Plaintiff's Property -2007", the requirement for a section 1983 claim that an individual be acting under color of state law was satisfied. (See Appellant's Brief at 17.)
Section 1983 provides, in relevant part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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..." --------
We disagree. Appellant's complaints lack a factual foundation. Appellant does state that Appellees are her neighbors and it is clear that her grievances stem from excess water on her property. However, Appellant does not offer any facts that even hint at how her neighbors became clothed with the authority of the state. Accordingly, Appellant has failed to state a claim for relief under section 1983.
Next, the Trial Court concluded that the complaints were legally insufficient due to Appellant's general failure to state facts in support of any of the other allegations contained within her complaints. (Trial Court Op. at 4.)
Appellant argues that the Trial Court erred in applying Pennsylvania Rules of Civil Procedure No. 1028(a)(4) and 1019(a) to her complaints, because some of her claims are based on federal law. In making this argument, Appellant misconstrues Vulcan v. United of Omaha Life Insurance Co., 715 A.2d 1169, 1172 (Pa. Super. 1998) (internal citations omitted), where the Superior Court discussed the role of state courts entertaining federal causes of actions and noted that "the parties rights and the defenses which may be raised are defined by federal law." Contrary to Appellant's assertions, this language does not mean Pennsylvania Courts apply the Federal Rules of Civil Procedure when adjudicating matters that include federal causes of action. Rather, this language speaks to the requirement that state courts apply federal substantive law where concurrent jurisdiction exists for federal causes of action, follow federal procedures where Congress clearly specifies the procedure for a particular cause of action, and refrain from applying state procedures that significantly burden the exercise of federal rights. Id; see Johnson v. Fankell, 520 U.S. 911 (1997) (state courts do not need to provide for an interlocutory appeal of the denial of immunity in 1983 suits against governmental officials, even though federal court procedure provides the right to immediate appeal, because the denial of an interlocutory appeal is not likely to be outcome determinative and Congress did not mention the right to immediate appeal in section 1983); see also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986) (affirming judgment sustaining demurrer under California law to a property owner's complaint for money damages for an alleged taking and for failure to allege a claim for relief under section 1983).
Additionally, we must agree with the Trial Court's conclusion that Appellant's complaints do not conform to the requirement of Rule 1019(a) that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa. R.C.P. No. 1019(a). As we stated above, the allegations in Appellant's complaints lack the support of a factual foundation. For example, to state a claim for conspiracy, a plaintiff may not simply state in his or her complaint that defendant conspired with others or engaged in a conspiracy. Instead, a complaint alleging a civil action for conspiracy, requires that a plaintiff state facts in support of: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or unlawful purpose; (2) an overt act done to further a common purpose; and (3) actual legal damage. DeBlasio v. Pignoli, 918 A.2d 822, 827 (Pa. Cmwlth. 2007). Appellant's complaints by contrast do not state facts, let alone facts in support of each element of the alleged causes of action. Instead, the complaints state unclear and unsupported violations of Appellant's rights by Appellees, with no articulation of the underlying acts or conduct that led to the alleged violations. As a result, the Trial Court properly sustained Appellees' preliminary objections in the nature of a demurrer.
The Trial Court is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 4th day of April, 2013, the orders of the Lackawanna County Court of Common Pleas dismissing the above captioned matters with prejudice is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge