# BRANDYWINE VILLAGE ASSOCIATES, LP v. EAST BRANDYWINE TOWNSHIP

> District Court, E.D. Pennsylvania · September 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10399673

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRANDYWINE VILLAGE : CIVIL ACTION
ASSOCIATES, et al. :
:
v. : NO. 20-2225
:
EAST BRANDYWINE TOWNSHIP, :
et al.

MEMORANDUM
KEARNEY, J. September 14, 2020
The Fourteenth Amendment requires local governments afford notice and opportunity for
their community to object to their decisions and prohibits them from making decisions so
unmoored to their governmental function so as to shock the conscience. To meet this mandate in
reviewing land use proposals, local governments hold noticed hearings to review plans, redraft
plans to meet concerns, and make public decisions to promote a stated public purpose. They are
entitled to just compensation for taking of their land consistent with the stated public purpose. If
unhappy with the local government’s decision, neighbors can sue and state courts may uphold
those considered plans after adducing evidence even if the plans incidentally benefit certain
landowners subordinate to the community’s benefit. Today we address disappointed neighbors
alleging years of land use disputes as background to a claim a local government’s 2019 post-
condemnation alleged change in the use for part of condemned land violates Section 310 of
Pennsylvania’s Eminent Domain Code and thus so shocks the conscience as to violate their
substantive due process rights. These neighbors also complain the local government deprived
them of procedural due process by failing to provide them a meaningful opportunity to be heard
on this abandonment of the stated governmental purpose although they admittedly litigated this
issue before the Township and in state court. Focusing on the issues now before us but not those
on appeal in Pennsylvania courts, the neighbors have not alleged the local government’s 2019
decision shocks the conscience or the local government deprived them of procedural due process.
But they may possibly do so. We grant the local government’s motion to dismiss the amended
Complaint with leave to the neighbors to timely state a claim within our limited jurisdiction.

I. Facts alleged in amended Complaint
As experienced counsel confirmed in oral argument, we today address a local
government’s 2019 approval of a post-condemnation 2018 land development plan which
allegedly changed the purpose and use of a portion of condemned land for which the local
government paid just compensation. But the prolix amended Complaint tells a long tale of
grievances litigated, and continuing to be litigated, in state court which offer some background
albeit not central to today’s holding.
East Brandywine Township rezoned farmland along Route 322 in Chester County for
commercial use in the late 1980s, including an undivided tract owned by the Watters family (“the
Undivided Tract”).1 John R. Cropper and his family owned a local grocery store next door to the
Undivided Tract.2 The Cropper family wanted to expand by buying half of the Undivided Tract

from the Watters to develop a shopping center.3 The Watters divided the Undivided Tract into
two parcels to sell one tract to the Croppers and retain the other tract.4 The Croppers purchased
the eastern parcel and developed the Brandywine Village Property while the Watters retained the
western parcel (the “Watters Property”) for future development.5 The Watters and the Croppers
entered into an easement agreement over twenty years ago granting the Croppers an access
easement, a sewer easement, a stormwater basin easement, and a drainage easement over
portions of the Watters Property (the “Brandywine Village Easements”).6 The Township
approved the Watters and Croppers’s plan, and the Croppers formed Brandywine Village
Associates, L.P. to develop the shopping center built in 1995.7 The Watters Property and the
Brandywine Village Property remained encumbered by the Brandywine Village Easements,
which included an access road from the Brandywine Village Property across the Watters
Property to Route 322.8

L&R Partnership buys a different plot next-door.
Nine years later, L&R Partnership, LLC purchased property (the “L&R Property”)
adjacent to once-Undivided Tract.9 L&R began designing a residential development on its
adjacent property in 2012.10
Carlino East Brandywine L.P. buys the Watters Property.
Carlino East Brandywine L.P. purchased the Watters Property in January 2010.11 Carlino
leased this property to Giant Supermarkets on June 1, 2010, and it sought to develop the Watters
Property with a shopping center called “East Brandywine Center.”12
East Brandywine Township wanted Carlino to build and pay for a new public road (the
“Connector Road”) to run through the Carlino Property, the Brandywine Village Property, and
the L&R Property linking North Guthriesville Road to U.S. Route 322.13 To this end, the

Township and Carlino agreed the Township would condemn portions of the Brandywine Village
Property and the L&R Property and nullify the Brandywine Village Easements.14
The Township approved this plan.15
The Brandywine Village Associates and L&R (collectively, “Neighbors”) appealed the
Township’s plan approval in October 2012 to the Chester County Court of Common Pleas.16
The state court reversed the Township’s plan approval because: (a) the plan used the Neighbors’
property without their consent; and (b) the plan erroneously characterized a portion of the
Connector Road as a private driveway.17
Carlino and the Township went back to the drawing board. After two years of
negotiations, Carlino and the Township entered into a “Memorandum of Understanding” under
which the Township agreed to condemn land on the Brandywine Village Property and the L&R
Property and approve a plan allowing Carlino to use the condemned property to construct the
Connector Road.18 The parties also agreed Carlino would indemnify the Township for all legal

costs or judgment damages incurred as a result of the condemnation.19
Consistent with the Memorandum of Understanding, in October 2014, the Township’s
Board of Supervisors condemned a 0.069 acre section of the Brandywine Village Property;
extinguished certain Brandywine Village Easements; and condemned a 1.93 acre section of the
L&R Property to construct “a new public street between Horseshoe Pike (Route 322) and North
Guthriesville Road and associated storm water facilities.”20 On November 17, 2014, the
Township filed a Declaration of Taking for the seized property/easements.21
The Neighbors challenge the Declaration of Taking.
In addition to fighting the plan in the development stage, the Neighbors before us raised

more than fifteen preliminary objections to the taking before the Chester County Court of
Common Pleas, which can be summarized into a few discrete groups: (1) the condemnation did
not serve a public purpose but rather bestowed a private benefit to Carlino; (2) to the extent the
condemnation did serve a public purpose, the Township condemned more land than necessary to
achieve the public purpose; and, (3) the Connector Road violated Pennsylvania law or
administrative regulations.22 The Chester County Court of Common Pleas overruled the
Neighbors’ objections in their entirety after seven days of hearings featuring the testimony of
several engineers, the Chief of Police, the Township manager and emergency management
coordinator, certain township supervisors, and the president of Carlino.23
The Neighbors appealed the Court of Common Pleas’s Order to the Pennsylvania
Commonwealth Court. On appeal, Neighbors again argued the “declaration of taking lack[ed] a
public purpose and [was] excessive, procedurally flawed, and/or [was] otherwise unauthorized,
illegal, or barred.”24 On July 2, 2018, the Commonwealth Court affirmed the Common Pleas

judge’s overruling of the preliminary objections finding the taking served a public purpose with
only incidental benefits to Carlino.25 Relying on the Commonwealth Court’s final order, the
Township paid just compensation for the condemned property and took possession of the
condemned property in October 2019.26
The Township approves a 2018 development plan now being challenged.
On July 2, 2018, Carlino submitted a fourth land development plan (“the 2018 Plan”),27
which incorporated the condemned property. Under the 2018 Plan, portions of the seized
property/easements will be used, not for the Connector Road directly, but for “a stormwater
management basin, a sanitary sewer line, and an underground stormwater pipe and associated
outfall facilities.”28 The Neighbors objected to the 2018 Plan in part “because it allowed Carlino

to use condemned property in violation of section 310 of the Pennsylvania Eminent Domain
Code.”29
On November 7, 2018, the Township’s Planning Commission approved the 2018 Plan
subject to conditions.30 On December 6, 2018, Township Supervisors Jay G. Fischer and Kyle
Scribner “authorized the Township Board’s participation in the pending preliminary land
development application for the 2018 Plan as a consenting fee simple landowner,”31 and together
with the Township they “authorized Carlino to use portions of the Seized Property/Easements
for . . . a stormwater management basin, a sanitary sewer line and an underground stormwater
pipe and associated outfall facilities from its commercial development.”32 The Board held public
hearings on four dates from December 2018 to February 2019, and afterward the Township
approved the plan on June 6, 2019.33
The Neighbors contest the 2019 partial change in use.
The Neighbors appealed the Township’s decision to the Chester County Court of
Common Pleas on July 18, 2019.34 Carlino filed a notice of interjection. After oral argument,

the Honorable Edward Griffith of the Chester County Court of Common Pleas affirmed the
Township’s decision and dismissed the appeal.35 Judge Griffith began by detailing the lengthy
history of litigation between the parties in state court, quoting the Honorable Dan Pellegrini of
the Commonwealth Court describing the ongoing conflict as “a procedural slog.”36 Judge
Griffith held, among other things, the Neighbors after days of hearings adduced no evidence the
Township “abandoned” the public purpose stated in the Declaration of Taking in violation of
Section 310 of the Eminent Domain Code.37
As is their right, the Neighbors appealed this decision in part, and the appeal is currently
pending in the Commonwealth Court with briefing scheduled over the next several weeks. On

July 6, 2020, the Neighbors’ lawyers told the Commonwealth Court they sought to appeal,
among other issues, the Township’s alleged bias in favor of Carlino, the Supervisors’ decision
not to recuse themselves from consideration of the 2018 Plan, and the procedural impropriety of
issuing a written decision summarizing the findings of fact and conclusions of law following the
court’s June 6, 2019 Order.38 Neighbors decided not to appeal Judge Griffith’s denial of their
argument regarding the alleged violation of Section 310 of the Eminent Domain Code in their
Statement of Issues on Appeal.39 They instead elected to bring this issue to us.
II. Analysis40
While arguing most of their claims in the Commonwealth Court, Neighbors then sued the
Township and its Supervisors Scribner and Fischer (collectively, the “Township”) in this Court
alleging they conspired to, and did, violate the Neighbors’ procedural due process rights under

the Fifth Amendment and their substantive due process rights under the Fourteenth
Amendment.41 The Township moves to dismiss arguing: (1) the Neighbors failed to plead an
underlying constitutional violation; (2) Supervisors Fischer and Scribner are entitled to
immunity; (3) the Township cannot be liable because the Neighbors do not adequately plead a
Monell claim; and (4) Neighbors are not entitled to attorneys’ fees or certain damages.42
We agree with the Township. The Neighbors fail to adequately plead a predicate
constitutional violation arising from an alleged abandonment under Section 310 of
Pennsylvania’s Eminent Domain Code necessary to sustain their constitutional claims. We
dismiss the amended Complaint without prejudice. As the Neighbors do not state a
constitutional violation,43 we do not address whether Supervisors Scribner or Fischer are entitled

to immunity or whether the Neighbors, had they adequately pleaded constitutional claims, would
be entitled to attorneys’ fees or certain categories of damages.
A. We may review the narrowed claim now before us.
The first question arising from the Neighbors litigating the same approval of the 2018
Plan in both the Pennsylvania Commonwealth Court and here is whether we must dismiss or
abstain under Younger, Burford, Colorado River, or Pullman.44 During oral argument, the
Neighbors illustrated the differences between this case and the Commonwealth Court case by
conceding—despite the breadth of their allegations—the claims before us boil down to two
discrete issues limited to Section 310 of Pennsylvania’s Eminent Domain Code encompassed in
three concise paragraphs in their amended Complaint: (1) whether Pennsylvania law affords
Neighbors adequate procedures to seek the return of their condemned property; and (2) whether
the Township violated Neighbors’ substantive due process by refusing to return the condemned
property to Neighbors. Neighbors explained they plead the remaining allegations as background.

We may abstain in favor of a related state court proceeding under Younger when the
related proceedings fall into one of “three exceptional categories”: (1) “ongoing state criminal
prosecutions”; (2) “certain civil enforcement proceedings”; and (3) “pending civil proceedings
involving certain orders uniquely in furtherance of the state courts’ ability to perform their
judicial functions.”45 “[T]he third category of abstention-worthy disputes has been applied only
to a few exceptional types of cases . . . such as child custody proceedings, civil contempt orders,
and requirements for posting bonds pending appeal.”46 The state action here does not fit into any
of these narrow categories, and Younger does not apply.
To determine whether Colorado River provides a basis to abstain, we must first
determine “whether the two actions are ‘parallel.’”47 “If they are not, then the district court lacks
the power to abstain.”48 “Generally, cases are parallel when they involve the same parties and

claims.”49 Given Neighbors’ narrowing of the issues before us, the cases are not parallel.
We may abstain under Burford if the case presents “questions of state law in which the
state has expressed a desire to establish a coherent policy with respect to a matter of substantial
public concern.”50 To trigger Burford, “an action must challenge a state’s regulatory scheme,
rather than actions taken under color of the scheme.”51 At oral argument, Neighbors admitted
they do not intend to challenge Pennsylvania’s regulatory scheme, just the actions taken under
the scheme.
We may abstain under Pullman if three “exceptional circumstances” are present:
(1) “there must be uncertain issues of state law underlying the federal constitutional claims”;
(2) “the state law issues must be amenable to a state court interpretation which could obviate the
need to adjudicate or substantially narrow the scope of the federal constitutional claim”; and
(3) “an erroneous construction of state law by the federal court would disrupt important state
policies.”52 In other words, abstaining under Pullman “is proper when a state court

determination of a question of state law might moot or change a federal constitutional issue
presented in a federal court case.”53 As the issues related to “abandonment” under Section 310
of the Eminent Domain Code are not before the Commonwealth Court, a ruling by the
Commonwealth Court cannot moot the constitutional question.
Although the Neighbors inartfully split their claims in two courts, we do not see a basis
for abstention or dismissal based on the Neighbors now conceding their only claim before us is
one not before the Pennsylvania Commonwealth Court: whether the Township’s approval of the
2018 Plan with an alleged abandonment of a stated purpose violative of Pennsylvania’s Eminent
Domain Code violates the Neighbors’ procedural or substantive due process rights.

B. Neighbors have not alleged a procedural due process claim.
The Neighbors first allege the Township violated their procedural due process rights
under the Fifth Amendment. This claim is a non-starter. We dismiss the Neighbors’ procedural
due process claim under the Fifth Amendment “because the [D]ue [P]rocess [C]lause of the Fifth
Amendment does not directly apply to actions of state officials,”54 and “[t]he limitations of the
Fifth Amendment restricts only federal government action.”55 A procedural due process claim
against municipalities or state officials, like the Township and Supervisors Scribner and Fischer,
must be asserted under the Fourteenth Amendment.56 We dismiss the procedural due process
claim without prejudice for this reason alone.
Even if the Neighbors could properly plead the correct Amendment, they fail to plead a
procedural due process violation. “The Fourteenth Amendment prohibits a state from
‘depriv[ing] any person of life, liberty, or property, without due process of law.’”57 To state a
claim for deprivation of procedural due process, the Neighbors must allege “(1) [they were]

deprived of an individual interest that is encompassed within the Fourteenth Amendment’s
protection of ‘life, liberty, or property,’ and (2) the procedures available to [them] did not
provide ‘due process of law.’”58 “[W]here a state provides a full judicial mechanism to review
and challenge administrative land use decisions, the state provides adequate due process.”59 “In
the eminent domain context, the federal constitution’s due process clause is satisfied so long as
property owners [have] reasonable notice of and [the] opportunity to be heard before the final
determination of judicial questions that may be involved in the condemnation proceedings.”60
Neighbors assert only one theory as to how the Township denied them due process by
abandoning the public purpose under Section 310 of the Eminent Domain Code: Pennsylvania
law does not provide a mechanism for them to seek the return of their condemned property if the
Township abandons the public purpose for which it condemned the property.61 This theory fails.

The Neighbors allege the Township abandoned the public purpose for which they
condemned their property and as such the Township must return their property under Section 310
of the Pennsylvania Eminent Domain Code.62 Under Section 310 of the Pennsylvania Eminent
Domain Code, “[i]f a condemnor . . . abandons the purpose for which the property has been
condemned, the condemnor may dispose of it,” but “[i]f the property is undeveloped or has not
been substantially improved,” the condemnor may not dispose of the property “within ten years
after condemnation” without first offering it “to the condemnee at the same price paid to the
condemnee by the condemnor.”63 The Neighbors allege the Township condemned their property
“for the construction of a new Township street” but abandoned this purpose when “the Township
agreed to convey an easement for Carlino to exclusively use the condemned property” for “a
sanitary sewer line,” “a stormwater pipe” and “associated outfall facilities.”64 The Neighbors
argue in “chang[ing] the purpose of the condemnation and dispos[ing] of the condemned L&R

land” without first offering the land back to L&R, the Township deprived L&R of its property
rights.65 The Neighbors argue the Township deprived them of procedural due process because
“Section 310 [of Pennsylvania’s Eminent Domain Code] does not provide an express process by
which” they can petition for the return of their abandoned property.66
The Neighbors’ allegations do not state a procedural due process violation. As the
Township rightly pointed out during oral argument, Neighbors do not plead this claim with
enough specificity to withstand a motion to dismiss. The Neighbors never allege Pennsylvania
law does not afford adequate mechanisms for a former landowner to seek return of their
condemned property. In fact, the only reference to Section 310 of the Eminent Domain Code is a
passing reference to one of the many objections Neighbors raised to the 2018 Plan with no
discussion as to how this statute interplays with Neighbors’ constitutional rights.67 Neighbors’

abandonment allegations appear in full form for the first time in Neighbors’ opposition to the
Township’s motion to dismiss.68 As it “is axiomatic that the complaint may not be amended by
the briefs in opposition to a motion to dismiss,” we do not consider this argument.69
If Neighbors had included in their amended Complaint allegations regarding the
adequacy of Pennsylvania law, we find it unlikely these allegations would be sufficient to state a
procedural due process claim. At oral argument, Neighbors struggled to articulate why exactly
Pennsylvania procedures are insufficient to seek the return of the allegedly “abandoned”
property. Despite the Neighbors’ contention the Eminent Domain Code does not provide an
“express process by which the abandoned property is returned to the condemnee,” the Neighbors
had the opportunity to raise, and in fact did raise, their abandonment argument as an objection to
the 2018 Plan. The Township considered and rejected the Neighbors’ abandonment claims.
Neighbors appealed the Township’s decision to the Court of Common Pleas. The court rejected

this same argument not for a procedural reason, but because the Neighbors adduced no evidence
after several days of hearings before the state court judge of the Township “abandoning” the
public purpose for which it condemned their property.70 They had the opportunity to challenge it
again in their appeal to the Commonwealth Court, but for some reason, chose not to do so.
Given Neighbors have now had the opportunity in three forums to present their abandonment
argument, they have been afforded “full judicial mechanisms” to review their objections to
Carlino’s use of the condemned land.71
We dismiss the Neighbors’ procedural due process claim.
C. Neighbors do not allege a substantive due process violation.
The Neighbors allege the Township’s approval of the 2018 Plan “abandoning” the stated

purpose of the condemnation under Pennsylvania’s Eminent Domain Code violates their
substantive due process rights. We dismiss Neighbors’ substantive due process claim for several
reasons. At oral argument, Neighbors boiled down their entire substantive due process argument
to: (1) the Township abandoned the public purpose for which it condemned Neighbors’
property, triggering Section 310 of the Eminent Domain Code; (2) under Section 310 of the
Eminent Domain Code, the Township cannot dispose of the property without first offering it
back to Neighbors; (3) the 2018 Plan effectively disposes of the land to Carlino by allowing
Carlino to use the condemned land for private purposes; (4) by allowing Carlino to use the
condemned land without first offering it back to Neighbors, the Township “virtually took” the
Neighbor’s property; and, (5) this “virtual taking” shocks the conscience because it violates the
Pennsylvania Eminent Domain Code. This argument suffers from a myriad of flaws.
There are two broad categories of substantive due process claims: those challenging
legislative action, which “apply to large segments of society”, and those challenging non-
legislative action, which “typically apply to one person or a limited number of persons.”72 The

alleged Township actions reviewed today are non-legislative because they affected the
Neighbors only. To state a non-legislative claim for violation of substantive due process, a
plaintiff must identify a property interest to which the Fourteenth Amendment’s due process
protection applies”73 and must allege the government deprived them of the alleged interest
through an “arbitrary and capricious act.”74 “[G]overnment action violates substantive due
process rights only when it ‘shocks the conscience’.”75 “‘[O]nly the most egregious official
conduct’ violates substantive due process.”76 A government action motivated by an “improper
purpose” or taken in bad faith does not necessarily “shock the conscience”; rather, the action
must bear no reasonable relation to legitimate government objectives.77

In the land use context, official conduct “shocks the conscience” only where the conduct
is the product of “corruption or self-dealing, bias against an ethnic group, interference with
constitutionally protected activity or a virtual ‘taking’ of property.”78 Neighbors do not meet this
high bar to plead a substantive due process violation.
To find the Township pleaded a substantive due process violation, we would necessarily
need to find the Township abandoned the public purpose for which it condemned the land. After
several days of hearings, the Court of Common Pleas already ruled “there is no evidence to
support” a “claim that the Township has abandoned the purpose for which it acquired the
Condemned Property.”79
In other words, Neighbors ask us to “sit in direct review of [a] state court decision” and
reverse a Pennsylvania court’s application of its own law. We cannot do so under the Rooker-
Feldman doctrine. Our Court of Appeals has held, “there are four requirements that must be met
for the Rooker–Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the

plaintiff ‘complains of injuries caused by [the] state-court judgments’; (3) those judgments were
rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to
review and reject the state judgments.”80 This case satisfies all four factors. Neighbors
presented this exact argument to the Court of Common Pleas and lost on April 16, 2020—one
month before they filed this case.81 Neighbors invite us to review and reject the Court of
Common Pleas’s ruling to resolve their alleged injuries here. As the Supreme Court has stated,
“[t]his the district court may not do.”82
Neighbors also have not alleged the Township deprived them of a constitutionally
protected property interest. Neighbors have not clearly articulated the exact nature of the
property interest at issue. While the Neighbors undoubtedly have a constitutionally protected
interest in real property they own, the Neighbors do not have an ownership interest in the

condemned land. 83 The Township condemned the land under a Declaration of Taking, which
the Commonwealth Court determined to be a lawful taking under the Pennsylvania Eminent
Domain Code.84 Neighbors admit the Township paid just compensation for the land. 85 Any
ownership interest Neighbors had is extinguished.
Construing the amended Complaint in the light most favorable to the Neighbors, we infer
Neighbors are arguing they have a constitutionally protected interest in their expectancy of an
offer to re-purchase the land from the Township in the event the Township first abandons the
public purpose and then seeks to dispose of the land within ten years of the condemnation under
Section 310 of the Eminent Domain Code. In other contexts, courts have held a party’s
expectancy in a constitutionally protected interest may give rise to procedural due process
protection if the expectancy is not “mere[ly] subjective,” but rather comes from a policy, practice
or statute.86 For Neighbors’ expectancy in an offer to repurchase the property to arise under

Section 310 of the Eminent Domain Code, several conditions must exist: (1) the Township
cannot have improved the property; (2) the Township must abandon the public purpose; (3) the
Township must seek to dispose of the land; and (4) fewer than ten years must have elapsed since
the condemnation.87 As discussed above, a Pennsylvania court has already ruled one of
triggering events—the Township’s abandonment of the public purpose—has not occurred.88
Also Neighbors concede the Township transferred the condemned land, not to Carlino, but to
PennDOT.89 As the conditions precedent for Neighbors’ expectancy to arise have not occurred,
we cannot find the Township deprived Neighbors of a constitutionally protected interest in this
expectancy.
But even assuming Neighbors pleaded the Township deprived them of a constitutionally

protected interest in an offer to re-purchase the condemned property, the Township’s refusal to
re-offer Neighbors the land does not “shock the conscience.” The Neighbors do not allege the
Township’s actions amounted to “bias against an ethnic group” or “interference with
constitutionally protected activity.”90 They instead allege the Township committed a “virtual
‘taking’ of property” sufficient to meet the “conscience-shocking” standard. Neighbors rely on
two cases to support their argument: Seitz and Willis.
In Seitz v. East Nottingham Township, Judge McHugh found the landowners adequately
pleaded “conscience-shocking conduct” by alleging the government “illegally seized Plaintiffs’
real property without providing just compensation. At oral argument, Neighbors argued this case
stands for the proposition a violation of the Eminent Domain Code may “shock the conscience.”
But Judge McHugh’s holding did not hinge on any alleged violation of the Eminent Domain
Code. Rather, Judge McHugh found a virtual taking because “the facts asserted amount[ed] to a
claim of an unconstitutional taking [of real property] without just compensation.”91 Here we do

not have a taking of real property without just compensation—an act expressly prohibited by the
Pennsylvania and United States Constitutions. Instead, we have the Township’s decision not to
offer the condemnee an opportunity to repurchase condemned land for which the Township paid
just compensation—an act barred by the Pennsylvania Eminent Domain Code if and only if
several conditions not present here exist. As Neighbors do not plead an unconstitutional taking
without just compensation, we do not find Seitz applicable here.
Neighbors also rely on Willis. In Willis v. Carrol Township, Judge Conner determined a
landowner adequately pleaded “conscience shocking conduct” where the government, hoping to
purchase the landowner’s property for a low price, (1) used threats of eminent domain to prevent
the landowner from selling property to a third party; (2) imposed unreasonable conditions on the

landowner’s property; and (3) filed an erroneous declaration of taking on the landowner’s
property.92 Judge Conner found these allegations constituted a “virtual taking” of the
landowner’s real property and “self-dealing” sufficient to shock the conscience. Again, Judge
Connor’s opinion had nothing to do with an alleged violation of the Eminent Domain Code.
Rather, he found the Township’s actions deprived landowner of his ability to use, enjoy or sell
his property and constituted self-dealing.93 Here the Township has not infringed on any present
ownership Neighbors have in any real property nor have they engaged in self-dealing, they
simply are withholding an offer to repurchase property Neighbors no longer own. We have no
basis on this pleading to find this decision “shocks the conscience.”
Neighbors overlook several cases finding a violation of Pennsylvania’s Eminent Domain
Code does not, standing alone, shock the conscience. For example, in Whittaker v. County of
Lawrence, Judge Fischer dismissed a substantive due process claim challenging a condemnation
even though “[t]he Commonwealth Court conclusively determined that the takings at issue in

[Whittaker] were violative of Pennsylvania law” and the landowners alleged “the Defendants
acted in bad faith by condemning their property.”94 Judge Fischer determined allegations of a
bad faith violation of state law do not, own their own, shock the conscience. Our Court of
Appeals affirmed.95 In Hynoski v. Colombia County Development Authority, Judge Brann
dismissed landowners’ substantive due process claims the government “used contrived evidence”
to forcibly relocate them and took their property “by fraudulent and improper means.”96 Judge
Brann found these allegations did not “shock the conscience” even though the alleged conduct
probably violated Pennsylvania law.97
Given the conduct alleged here is far less egregious than the conduct alleged in Whittaker
and Hyonoski, we find the alleged conduct does not “shock the conscience.” The Township
lawfully took Neighbors’ property and paid just compensation for the land.98 A Pennsylvania

court ruled the Township did not “abandon” the public purpose for which it condemned this land
following days of evidentiary hearings. The Pennsylvania court found the Township had no
obligation under Section 310 of the Eminent Domain Code to offer to return the property under
Pennsylvania law.99 On these plead facts, we cannot determine the failure to return the property
to Neighbors “shocks the conscience.”
Neighbors fail to plead a substantive due process claim.
D. The Neighbors fail to plead a conspiracy to violate their due process rights.

The Neighbors have not properly pleaded a violation of their procedural or substantive
due process rights. Absent pleading a violation, we must dismiss their conspiracy to violate
claims. To state a claim for civil conspiracy, the Neighbors must plead: “(1) the existence of a
conspiracy involving state action; and (2) a deprivation of civil rights in furtherance of the
conspiracy by a party to the conspiracy.’”100 “Unlike in the criminal conspiracy context, where
the crime lies in the agreement itself, a cause of action for civil conspiracy requires a distinct
underlying tort as a predicate to liability.”101 Where the underlying claim is properly dismissed,
“the conspiracy claim must be dismissed as well.”102 Because the Neighbors do not plead an
underlying constitutional violation, they do not plead a conspiracy to violate the Due Process
Clause.
Even if the Neighbors adequately plead an underlying constitutional violation, “to state a
claim under § 1985(3), a plaintiff must show, among other things a conspiracy that is ‘motivated
by a racial or class based discriminatory animus.’”103 The Neighbors do not come close to such

an allegation.
III. Conclusion
After years of township hearings and state court disputes resulting in multiple levels of
judicial scrutiny, Brandywine Village Associates, L&R, and John R. Cropper now allege East
Brandywine Township and its Supervisors Jay G. Fischer and Kyle Scribner deprived them of
procedural due process under the Fifth Amendment and substantive due process under the
Fourteenth Amendment and conspired to deprive them of these procedural and substantive due
process rights. These neighboring landowners fail to state a claim for which relief can be
granted under these theories.104 We dismiss their amended Complaint without prejudice if they
can plausibly plead these claims consistent with Federal Rules 8 and 11.

1 ECF Doc. No. 7 (Amended Complaint) at ¶ 10.

2 Id. at ¶ 12.

3 Id. at ¶ 13.

4 Id. at ¶ 14.

5 Id. at ¶ 15-16.

6 Id. at ¶ 16.

7 Id. at ¶¶ 18-19. John Cropper is a named Plaintiff as the predecessor to the Brandywine Village
Associates although it is unclear his standing to challenge 2019 Township decisions.

8 Id. at ¶ 25.

9 Id. ¶¶ 26-27.

10 Id., at ¶ 28.

11 Id. at ¶¶ 29-31.

12 Id. at ¶¶ 32-33.

13 Id. at ¶ 34.

14 Id. at ¶¶ 34-36.

15 Id. at ¶ 37.

16 Id.

17 Id. (“The court reversed the Township’s approval on two grounds: (a) use of another
landowner’s property without the owner’s consent, and (b) characterizing a portion of the
Connector Road as a private driveway so that the Carlino plan could avoid compliance with
certain zoning requirements.”).

18 Id. at ¶ 41.

19 Id. at ¶ 45.
20 ECF Doc. No. 7-4 at 2.

21 ECF Doc. No. 7 at ¶ 47.

22 See Condemnation in Fee Simple Title to 0.069 Acres of Vacant Land and Certain Easements,
No. 2014-11237, 2018 WL 3213113, at *4 (Pa. Commw. Ct. 2018). When deciding a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), we may only consider the “complaint,
exhibits attached to the complaint, matters of public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). Declarations of taking, landowners’ objections to a
taking, and state court opinions regarding those objections constitute “matters of public record,”
which we can consider on a motion to dismiss. Hynoski v. Columbia Cty. Redevelopment Auth.,
941 F. Supp. 2d 547, 555–56 (M.D. Pa. 2013); see also See S. Cross Overseas Agencies, Inc. v.
Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 413 (3rd Cir. 1999) (taking judicial notice of an
earlier court opinion as a matter of public record). The parties rely heavily on references to the
state court proceedings, which constitute matters of public record, so we consider them here.
23 Id. at *4-7.

24 Id. at *7.

25 ECF Doc. No. 7, at ¶ 52.

26 Id. at ¶ 60.

27 Id. at ¶ 59.

28 Id. at ¶ 61.

29 Id. at ¶¶ 62-63.

30 Id. at ¶ 65. Neighbors allege they discovered the Township sought to delete emails and
destroy hard drives and held “secret meetings” with Carlino in violation of the Pennsylvania
Sunshine law. Id. at ¶ 66-67. They further allege the Board of Supervisors refused to recuse
themselves from consideration of the 2018 Plan. Id. at ¶ 68. During oral argument, Neighbors
made clear these allegations are plead as merely background not meant to satisfy the elements
necessary for their substantive and procedural due process claims.

31 Id. at ¶ 68.

32 Id. at ¶ 69.

33 Id. at ¶ 73. Neighbors include allegations in their amended Complaint about a “second
decision” allegedly issued two weeks after the hearing. Neighbors made clear during oral
argument these allegations are simply background and do not provide a basis for their
substantive or procedural due process claims.

34 ECF Doc. No. 7 at ¶ 81.

35 ECF Doc. No. 12-1 at 39.

36 Id. at 3.

37 Id. at 10-39. Judge Griffith further found the Township did not abuse its discretion in the 2018
Plan approval; claims about the illegality of the Memorandum of Understanding lacked merit;
there is nothing illegal or improper about Supervisors Fischer’s or Scribner’s involvement in the
approval of the 2018 Plan; the “Connector Road is intended as a public road for use by the
general public and is not necessary for the development of [Carlino’s] Property.” The Neighbors
are now appealing these decisions to the Pennsylvania Commonwealth Court.

38 ECF Doc. No. 15. We ordered the Township file a notice of supplemental authority “attaching
all statements of issues complained of on appeal filed in the Pennsylvania Commonwealth
Court” and scheduled oral argument to address, among other things, the effect of the public
records in the Commonwealth Court appeal upon the justiciability of the constitutional issues.

39 Id.

40 Our review of the Neighbors’ amended Complaint under Rule 12(b)(6) requires we consider
all “factual allegations as true, construe the complaint in the light most favorable to the plaintiff”
and decide if the plaintiff has stated a claim for relief. Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009). We emphasize a plaintiff must allege “more than labels and
conclusions” and actually plead facts in their complaint. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). A plaintiff fails to advance past the pleading stage if the complaint
contains only a “formulaic recitation of the elements” of their claim. Id. The complaint need not
include facts which undeniably establish the cause of action but must include “enough” to state a
plausible claim for relief. Id. at 570. The factual allegations in the complaint must be strong
enough for us to “draw a reasonable inference” the plaintiff is entitled to relief. Fowler, 578 F.3d
at 210.

Our Court of Appeals established a three-prong test for reviewing a complaint subject to a Rule
12(b)(6) motion. Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016). We must assess
the “elements” of the plaintiff’s claims, discard statements which “are no more than
conclusions,” and take all “well-pleaded factual allegations” from the complaint as true to
determine whether the plaintiff has stated a claim for relief. Id. at 787. Moreover, the complaint
does not need to establish a “prima facie case” at the pleading stage. Id. at 789.
41 ECF Doc No. 1. The Township moved to dismiss on July 15, 2020. ECF Doc. No. 6.
Neighbors amended their complaint. ECF Doc. No. 7.

42 ECF Doc. No. 12.
43 To plead a Monell claim, a plaintiff must plead a constitutional violation. See Natale v.
Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). As Landowners have not
pleaded a constitutional violation, their Monell claim necessarily fails.

44 Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U,S, 315 (1943);
Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976); Railroad Comm’n of
Tex. v. Pullman Co., 312 U.S. 496 (1941).

45 Malhan v. Sec’y United States Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019).

46 Godfrey v. Upland Borough, 246 F. Supp. 3d 1078, 1094 & nn.73-74 (E.D. Pa. 2017).

47 Ryan v. Johnson, 115 F.3d 193, 195–96 (3d Cir. 1997) (citing Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

48 Id.

49 Id.

50 Nat’l City Mortg. Co. v. Stephen, 647 F.3d 78, 83 (3d Cir. 2011).

51 Gov’t Emps. Ins. Co v. Tri Cty. Neurology & Rehab. LLC, 721 F. App’x 118, 122 (3d Cir.
2018) (citing Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 40910 (3d Cir.
2005)).

52 Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 149 (3d Cir. 2000).

53 Nat’l City Mortg. Co., 647 F.3d at 83.

54 Nicolette v. Caruso, 315 F. Supp. 2d 710, 718 (W.D. Pa. 2003) (citing Huffaker v. Bucks Cnty.
Dist. Att’y’s Off., 758 F. Supp. 287, 290 (E.D. Pa. 1991)). We are aware the takings clause of the
Fifth Amendment applies to state officials through the Fourteenth Amendment, but Neighbors do
not plead a takings claim. See ECF Doc. No. 7; ECF Doc. No. 13.

55 Id. (citing Nguyen v. U.S. Catholic Conf., 719 F.2d 52, 54 (3d Cir. 1983)).

56 Id.

57 McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 639 (M.D. Pa. 2014) (citing U.S.
CONST. amend. XIV, § 1).

58 Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000)).
59 Westrum Land Dev. Corp. v. Whitpain Twp., No. 01-55355, 2002 WL 32351106, at *6
(E.D.Pa. Oct. 23, 2002) (citing DeBlasio v. Zoning Bd., et.al., 53 F.3d 592, 597 (3d Cir. 1995),
abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA,
316 F.3d 392, 400 (3d Cir. 2003)).

60 RLR Invs, LLC v. Town of Kearny, 386 Fed. App’x. 84, 89 (3d Cir. 2010) (alterations in
original).

61 ECF Doc. No. 13-1 at 18. Neighbors abandoned all other potential procedural due process
arguments during oral argument.

62 ECF Doc. No. 13-1 at 14-16.

63 26 Pa. Cons.Stat. § 310 (2006).

64 ECF Doc. No. 13-1 at 15.

65 Id. at 16.

66 Id. at 18.

67 See ECF Doc No. 7 ¶63.

68 Id.

69 Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).

70 ECF No. 12-1 at 28 (“Appellants also claim that the Township has abandoned the purpose for
which it acquired the Condemned Property. There is no evidence to support such a claim.”).

71 In their opposition, Neighbors argue “the 2014 Resolution, the August 2014 [Memorandum of
Understanding] and the 2018 Plan attempt to vacate the existing public road, essential to the use
of Plaintiffs’ property without formal vacation proceedings.” The Neighbors appear to argue the
Township must enact an ordinance and/or seek approval from the courts under the Second Class
Township Code and/or the General Road Law to vacate the road. The Neighbors then argue by
“refus[ing] to seek court approval for the vacation of the road as required by statute,” the
Township deprived them of procedural due process. This theory appears nowhere in the
amended Complaint and Neighbors did not raise it at oral argument. We do not consider it here.

72 Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000).

73 Id. at 140-41.

74 Seitz v. East Nottingham Twp., No. 16-4130, 2017 WL 2264637, at *7 (E.D.Pa. May 24, 2017)
(citing United Artists Theatre Circuit, Inc., 316 F.3d at 400).
75 Id.

76 Sutton v. Chanceford Twp., 763 Fed. App’x 186, 192 (3d Cir. 2019) (quoting City of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

77 See United Artists Theatre Circuit, Inc., 316 F.3d at 400-02; Corneal v. Jackson Twp., 313 F.
Supp. 2d 457, 465-66 (M.D. Pa. 2003), aff’d, 94 F. App’x 76 (3d Cir. 2004).

78 Prosperi v. Twp. of Scott, No. 06-501, 2006 WL 2583754, at *4 (W.D. Pa. Sept. 7, 2006)
(citing Eichenlaub v. Twp. of Ind., 385 F.3d 274, 285-86 (3d Cir. 2004)).

79 ECF Doc. No. 12-1 at 28.

80 Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F .3d 150, 166 (3d Cir.
2010).

81 ECF Doc. No. 12-1 at 39; ECF Doc. No. 1.

82 D.C. Ct. App. v. Feldman, 460 U.S. 462, 482 n.16 (1983).

83 See ECF Doc. No. 7 at ¶ 60.

84 Id. at ¶ 52.

85 Marin v. McClincy, 15 F. Supp. 3d 602, 615 (W.D.Pa. 2014).

86 Perry v. Sindermann, 408 U.S. 593, 603 (1972) (finding an expectancy in future employment
protected by procedural due process when the expectancy based on the policies and practices of
an institution); Pratola v. Sullivan, No. 08-2417, 2010 WL 234937, at *6 (D.N.J. Jan. 14, 2010)
(citing Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1 (1979)) (recognizing
a liberty interest in the expectancy of parole release).

87 26 Pa. Cons.Stat. § 310 (2006).

88 ECF Doc. No. 12-1 at 28.

89 ECF Doc. No. 7 at 16.

90 The Neighbors alleging the Township interfered with a constitutionally protected interest does
not equate to an argument the Township interfered with a constitutionally protected activity. See
Eichenlaub, 385 F.3d at 285 (contrasting a substantive due process to a land use decision
preventing abortion service and “a zoning controversy that does not involve allegations of
hostility to constitutionally-protected activity on the premises.”).

91 Seitz, 2017 WL 2264637, at *7.
92 Willis v. Carrol Twp., No. 07-949, 2008 WL 644762, at *1-3, 8 (M.D.Pa. Mar. 5, 2008).

93 Id.

94 Whittaker v. Cnty. of Lawrence, 674 F. Supp. 2d 668, 700-01 (W.D.Pa. 2009), aff’d 437 Fed.
App’x. 105 (3d Cir. 2011).

95 Whittaker v. Cnty. of Lawrence, 437 Fed. App’x. 105, 108-09 (3d Cir. 2011).

96 Hynoski v. Colombia Cnty. Dev. Auth., 941 F. Supp. 2d 547, 565-66 (M.D.Pa. 2013).

97 Id.

98 ECF Doc. No. 7 at ¶ 60.

99 ECF Doc. No. 12-1 at 28.

100 Gale v. Storti, 608 F. Supp. 2d 629, 635 (E.D. Pa. 2009).

101 Glass v. City of Phila., 455 F. Supp. 2d 302, 359–60 (E.D. Pa. 2006) (citing In re Orthopedic
Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 (3d Cir.1999)).

102 Watlington on behalf of FCI Schuylkill African Am. Inmates v. Reigel, 723 F. App’x 137, 140
(3d Cir. 2018) (citing In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d at 789 & n.7).

103 Id. (citing Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)); see also Rosembert v. Borough
of E. Lansdowne, 14 F. Supp. 3d 631, 647 (E.D. Pa. 2014).

104 As the Neighbors fail to state a claim for which relief can be granted, we do not reach the
Township’s arguments on immunity, supervisory liability, attorney’s fees, or damages issues.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399673. Public record. Not legal advice.