Pompey Coal Company v. Borough Of Jessup

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

POMPEY COAL COMPANY,

Plaintiff, CIVIL ACTION NO. 3:20-cv-00358

v. (SAPORITO, M.J.)

BOROUGH OF JESSUP, et al.,

Defendants.

MEMORANDUM

This is a federal civil rights action concerning the adoption and

application of a local land use ordinance. It was originally commenced in

state court by the filing of a writ of summons on April 24, 2019. (Doc. 2.)

The action was removed to federal court by the defendants on February

28, 2020. (Doc. 1.)

The plaintiff, Pompey Coal Company (“Pompey Coal”), seeks

damages and declaratory relief against the Borough of Jessup (the

“Borough”) and seven current or former members of its Borough Council,

each of whom is named as a defendant in both his or her personal and

official capacities. In its amended complaint (Doc. 10), Pompey Coal

claims that the defendants adopted a land use ordinance, Ordinance 3 of

2019 (“Ordinance 3”), and re-zoned its property in an unconstitutional

and tortious manner.

The defendants, appearing jointly through counsel, have moved to

dismiss the plaintiff’s amended complaint. (Doc. 17.) That motion is fully

briefed and ripe for decision. (Doc. 18; Doc. 25; Doc. 31.) For the reasons

stated below, the motion will be granted and the amended complaint will

be dismissed, but with leave to amend.

I. FACTUAL BACKGROUND

The Borough of Jessup is an incorporated borough located in

Lackawanna County, Pennsylvania. It is governed by a seven-member

borough council, along with an elected mayor. The Borough consists of

6.75 square miles of established residential, commercial, and industrial

zones, with development governed by a comprehensive plan for

development adopted in 1995.1

Pompey Coal is a Pennsylvania business corporation that owns

land within the Borough that was zoned “M-1A,” a designation that

permitted manufacturing and other industrial use. William “Billy”

Rinaldi is Pompey Coal’s president.

1 It is our understanding that a new comprehensive plan has since

been adopted. This dispute arises out of re-zoning decisions made prior

to adoption of the superseding comprehensive plan.

On April 13, 2016, Pompey Coal sold 65.35 acres of land it owned

within the Borough’s M-1A manufacturing zone to Lackawanna Energy,

LLC (“Lackawanna Energy”), which subsequently constructed an

electrical power plant on that property. The defendants were allegedly

outraged by this sale.

Pompey Coal owns an additional 198 acres of land within the

Borough’s M-1A business park. In the spring of 2018, Pompey Coal began

negotiations with Northpoint Development, LLC (“Northpoint”) for

potential sale of its remaining property within the Borough. Northpoint

was interested in developing the land into a distribution center based on

its close proximity to railroad, highway, and air transportation.

In the late spring or early summer of 2018, Borough Council

president Gerald Crinella allegedly told members of the Borough Council

and members of the public that “Billy Rinaldi has enough money,” and

that the Borough needed to change the zoning ordinance to stop Pompey

Coal from selling its land to other unpopular industrial businesses. At

the same time, the defendants were engaged in negotiations to provide

tax incentives to assist the Trammell Crow Company (“Trammell Crow”)

in its purchase of 92 acres of commercial land space within the Borough’s

M-1A business park to create the Valley View Trade Center.

In July 2018, the defendants began to consider re-zoning and re-

mapping parts of the M-1A business park, including the remaining land

owned by Pompey Coal. These initial discussions were allegedly “outside

the public purview.”

On July 31, 2018, the Borough entered into a contract with the

Urban Research and Development Corporation (“URDC”) to prepare a

new comprehensive plan and zoning ordinance for the Borough. The

contract with URDC established a 16-month period for development of

this new comprehensive plan and zoning ordinance, including public

meetings, county review, drafting, and workshops prior to presentment

of the draft comprehensive plan and zoning ordinance.

Notwithstanding this contractual timeline, the plaintiff alleges that

URDC was directed by the seven individual defendants, without

legislative authority from the Borough Council, to produce a draft zoning

ordinance and map. This draft zoning ordinance and map, which was

later adopted as Ordinance No. 3, proposed to rezone Pompey Coal’s

property from its existing M-1A industrial zoning classification to an “R-

2” residential zoning classification and an “IAC” interchange activity

center zoning classification.2 This proposed change in zoning of the

Pompey Coal property would effectively block any sale to Northpoint, and

the defendants allegedly knew and intended as much. URDC produced

the draft zoning ordinance and map to the Borough August 9, 2018—nine

days after the Borough and URDC entered into the contract providing for

a 16-month process to produce an updated comprehensive plan and

zoning ordinance for the Borough. Four days later, on August 13, 2018,

the defendants forwarded the draft zoning ordinance and map to the

Lackawanna County planning commission for review; it was also

submitted to the Borough’s own planning commission for review.

On August 22, 2018, without any input from Pompey Coal, owner

of the affected property, the Borough planning commission “approved”

the draft zoning ordinance and map.3 Subsequently, on August 27, 2018,

2 The proposed rezoning also affected the property previously

conveyed from Pompey Coal to Lackawanna Energy.

3 The nature and significance of this “approval” by the Borough

planning commission is not entirely clear from allegations of the

amended complaint. As with the plaintiff’s characterization of the county

planning commission’s evaluation of this same draft zoning ordinance

and map as a “rejection” of the proposal, see infra note 4, this “approval”

of it might be more accurately characterized as a recommendation that

the draft zoning ordinance and map be approved subsequently by the

Borough Council. See 53 P.S. § 10609(c).

the county planning commission provided its evaluation of the proposed

amendment to the Borough’s zoning ordinance and map, advising that

the proposed changes were inconsistent with the Borough’s existing

comprehensive plan, which designated the land for manufacturing use.

The county planning commission further advised that the rezoning of the

affected property might be premature in light of the comprehensive plan

update process the Borough had recently undertaken, and that the

rezoning might be challengeable in court.4

On August 30, 2018, the Borough solicitor wrote to Pompey Coal to

inform it that a public hearing on the proposed zoning change would be

held on October 1, 2018. On September 5, 2018, an attorney representing

Pompey Coal wrote to notify the Borough solicitor that it objected to any

change in zoning that would impact Pompey Coal’s property. In

particular, Pompey Coal’s letter noted that a change from a M-1A

4 In its amended complaint, the plaintiff characterizes the county

planning commission’s evaluation as “rejection” of the draft zoning

ordinance and map, but the attached exhibit referenced in support of this

allegation is an “evaluation report” by the county planning commission

that provides only “comments” on the proposed zoning ordinance

amendment. Moreover, the applicable state statute expressly provides

that a proposed municipal zoning ordinance amendment be submitted to

the county planning agency for its review and recommendations, not its

approval or rejection. See 53 P.S. § 10609(e).

classification to R-2 and IAC classification would impose a severe and

substantial financial impact on the development of the property. The

letter suggested that the zoning change would constitute a deprivation of

property, a regulatory taking for which just compensation was required,

and impermissible “spot zoning.” On September 26, 2018, an attorney

representing Lackawanna Energy likewise objected to the proposed

amendment to the Borough zoning ordinance and map. According to the

amended complaint, no hearing was held on October 1, 2018.

On October 1, 2018, Northpoint agreed to purchase approximately

183 acres of Pompey Coal’s M-1A-zoned land within the Borough for $3.5

million. Pompey Coal and Northpoint agreed to a sixty-day due diligence

period prior to signing a full agreement of sale.

On March 25, 2019, the Borough Council held a hearing on the draft

amendments to the Borough zoning ordinance and map, at which Pompey

Coal appeared and raised objections to the amendment. Prior to the

hearing, a notice of hearing was published in the March 11, 2019, and

March 18, 2019, editions of The Scranton Times, a newspaper of general

circulation.

On April 10, 2019, the Borough Council adopted Ordinance No. 3,

amending the Borough’s zoning ordinance and map, re-zoning Pompey

Coal’s property from a M-1A zoning classification to R-2 and IAC zoning

classifications. Prior to the hearing, a notice of hearing was published in

the April 3, 2019, edition of The Scranton Times. As noted in the amended

complaint, the Borough did not adopt an updated comprehensive plan

prior to adopting Ordinance No. 3.

Earlier that same day, Pompey Coal submitted a land development

plan to the Borough in preparation for its sale of land to Northpoint. The

land development plan proposed two warehouses to be built within the

property owned by Pompey Coal. On April 24, 2019, the Borough

planning commission reviewed Pompey Coal’s land development plan

and voted to permit it to supplement its submission, rejecting a motion

to reject it as technically defective. On May 20, 2019, notwithstanding

the planning commission vote, the Borough secretary forwarded a letter

to Pompey Coal’s attorney rejecting the land development plan, signed

by the secretary on behalf of the planning commission chair.

As a result of the Borough Council’s passage of Ordinance No. 3,

Pompey Coal alleges that it has been unable to finalize an agreement of

sale of the property to Northpoint because the property is no longer zoned

M-1A and the landowner would not be permitted to develop the two

warehouses Northpoint desired to build.

On April 24, 2019, Pompey Coal commenced the instant civil action

by filing a writ of summons in the court of common pleas, docketed there

as Pompey Coal Company v. Borough of Jessup, Case No. 2019-02461

(Lackawanna Cty. (Pa.) C.C.P.). (Doc. 2.) Pompey Coal filed its original

state-court complaint on February 7, 2020. (Doc. 2-1.) The action was

removed by the defendants to federal district court on February 28, 2020,

and Pompey Coal filed its amended complaint in this federal civil action

on March 30, 2020. (Doc. 1; Doc. 10.)5

On May 7, 2019, Pompey Coal commenced a second state-court

action, Pompey Coal Company v. Borough of Jessup, Case No. 2019-02735

(Lackawanna Cty. (Pa.) C.C.P.), by filing a notice of procedural appeal in

the court of common pleas, which challenged the validity of the Borough’s

adoption of Ordinance No. 3 under provisions of the Pennsylvania

5 A district court, of course, may properly take judicial notice of

state court records, as well as its own. See Fed. R. Evid. 201; Sands v.

McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth

Servs. of Chester Cty., 108 F.3d 486, 498–99 (3d Cir. 1997); Pennsylvania

v. Brown, 373 F.2d 771, 778 (3d Cir. 1967). Each of the state-court records

referenced in this paragraph was also attached as an exhibit to the

defendants’ notice of removal, filed in this action.

Municipal Planning Code and the Pennsylvania Borough Code. (Doc. 18-

1; Doc. 18-2.)

On May 30, 2019, Pompey Coal commenced a third state-court

action, Pompey Coal Company v. Borough of Jessup, Case No. 2019-03224

(Lackawanna Cty. (Pa.) C.C.P.), by filing a notice of appeal in the court

of common pleas, which challenged the rejection of Pompey Coal’s land

development plan by the Borough planning commission. (Doc. 18-3; Doc.

18-4.)6

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure7 authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

6 See supra note 5. Each of the state-court records referenced in this

paragraph was also attached as an exhibit to the defendants’ brief in

support of their motion to dismiss, filed in this action.

7 Although the issue of Younger abstention implicates the court’s

exercise of jurisdiction over a case, the Third Circuit has noted that

“[d]ismissal on abstention grounds without retention of jurisdiction is in

the nature of a dismissal under Fed. R. Civ. P. 12(b)(6).” Gwynedd Props.,

Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1206 n.18 (3d Cir. 1992); see

also PDX N., Inc. v. Comm’r N.J. Dep’t of Labor & Workforce Dev., 978

F.3d 871, 881 n.8 (3d Cir. 2020) (suggesting that Younger abstention is

properly considered under Rule 12(b)(6) or Rule 12(c)), petition for cert.

filed, No. 20-1327 (U.S. Mar. 19, 2021). Thus, we consider this abstention

argument under the Rule 12(b)(6) standard, rather than Rule 12(b)(1).

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The amended complaint is comprised of eight counts. In Count I,

the plaintiff asserts a § 1983 retaliation claim under the Fourteenth

Amendment, contending that the defendants retaliated against Pompey

Coal for the exercise of its constitutional right to own and use property

by adopting and implementing the new zoning ordinance and map. In

Count II, the plaintiff asserts § 1983 substantive and procedural due

process claims under the Fourteenth Amendment, contending that the

defendants’ adoption and implementation of the new zoning ordinance

and map was arbitrary and capricious, and it deprived Pompey Coal of

its protected property rights without due process of law. In Count III, the

plaintiff asserts a § 1983 equal protection claim, contending that the new

zoning ordinance and map treated Pompey Coal differently from other

similarly situated property owners without a compelling state interest.

In Count IV, the plaintiff asserts a § 1983 or § 1985 civil conspiracy claim,

contending that the defendants conspired to violate Pompey Coal’s

federal civil rights.8 In Count V, VI, and VII, the plaintiff asserts state-

law civil conspiracy and intentional interference with existing and

prospective contractual relations claims. In Count VIII, the plaintiff

asserts a state-law claim that the adoption and implementation of the

new zoning ordinance and map were in violation of state statutes

governing the adoption of local zoning ordinances. For relief, the plaintiff

seeks declaratory judgment and an award of compensatory and punitive

damages.

A. Abandoned Claims

We note at the outset that, in its brief in opposition, the plaintiff

has expressly conceded that it may not recover punitive damages from

the Borough and the individual defendants in their official capacities, as

a matter of law. (Doc. 21 n.5.) It has also conceded and expressly

withdrawn its state-law claims that the defendants violated the notice

requirements of the Pennsylvania Municipal Planning Code, 53 P.S.

8 On its face, Count IV asserts a conspiracy to violate civil rights

under 42 U.S.C. § 1985, but the plaintiff’s brief in opposition to dismissal

asserts that this was a typographical error, arguing that this claim

should be treated instead as a civil conspiracy under § 1983. We address

this particular claim under both statutes.

§§ 10609, 10107, and the Pennsylvania Borough Code,9 8 Pa. Cons. Stat.

Ann. § 3301.2, as set forth in Count VIII of the amended complaint. (Id.

at 23.) Accordingly, these claims will be dismissed.

B. Younger Abstention

We turn then to the question of whether we should abstain from

exercising jurisdiction over this federal civil action pursuant to Younger

v. Harris, 401 U.S. 37 (1971), in deference to the two other civil actions

by the plaintiff seeking judicial review of the adoption and application of

Ordinance No. 3, both of which remain pending in state court.

In Younger, the Supreme Court of the United States held that,

absent extraordinary circumstances, federal courts should refrain from

enjoining pending state criminal prosecutions. See id. at 43–44. Since

then, the Supreme Court has extended Younger abstention to include

“particular state civil proceedings that are akin to criminal prosecutions

or that implicate a State’s interest in enforcing the orders and judgments

of its courts.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72–73 (2013)

(citations omitted); see also New Orleans Pub. Serv., Inc. v. Council of

9 The plaintiff’s brief references the “Jessup Borough Code,” but the

statutory citation is to the Pennsylvania Borough Code.

City of New Orleans (“NOPSI”), 491 U.S. 350, 368 (1989)).

Circumstances fitting within the Younger doctrine, we

have stressed, are “exceptional”; they include, as

catalogued in NOPSI, “state criminal prosecutions,”

“civil enforcement proceedings,” and “civil proceedings

involving certain orders that are uniquely in

furtherance of the state courts’ ability to perform their

judicial function.”

Sprint, 571 U.S. at 73 (quoting NOPSI, 491 U.S. at 367–68); see also

NOPSI, 491 U.S. at 368 (including in this last category civil contempt

orders and requirements for the posting of bond pending appeal).

Of particular relevance here, Younger does not “require[] abstention

in deference to a state judicial proceeding reviewing legislative or

executive action.” NOPSI, 491 U.S. at 368. The claims raised by the

plaintiff in this case solely concern legislative action—the consideration

and adoption of a local land use ordinance and zoning map—and

executive action—the planning commission’s enforcement of the

ordinance in connection with its consideration and rejection of Pompey

Coal’s land development plan. The related state court actions in favor of

which the defendants ask us to abstain are not criminal prosecutions or

quasi-criminal civil enforcement proceedings, nor do they implicate

Pennsylvania’s interest in enforcing the orders and judgments of its

courts.10 See Selig v. N. Whitehall Twp. Zoning Hearing Bd., Civil Action

No. 17-4504, 2018 WL 1942510, at *6 (E.D. Pa. Apr. 24, 2018) (finding

Younger abstention with respect to local zoning decisions inappropriate

under Sprint); see also Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970

F.2d 1195, 1203 (3d Cir. 1992) (admonishing “district courts not to

dismiss claims hastily merely because they may involve land use issue”);

Heritage Farms, Inc. v. Solebury Twp., 671 F.2d 743, 748 (3d Cir. 1982)

(“[T]he mere presence of land use issues should not trigger a mechanical

decision to abstain.”); Godfrey v. Upland Borough, 246 F. Supp. 3d 1078,

1094 (E.D. Pa. 2017) (“[D]isputes touching on a state’s land use

policies, . . . although doubtless related to important state interests, do

not necessarily warrant abstention.”). See generally Sprint, 571 U.S. at

72 (“Abstention is not in order simply because a pending state-court

proceeding involves the same subject matter.”).

10 As noted above, Pompey Coal has expressly withdrawn its state

municipal planning code and borough code claims in this case, conceding

that litigating these claims here would be duplicative of its separate

state-court actions for judicial review of the planning commission’s

rejection of its land development plan and for judicial review of

Ordinance No. 3 itself. But even if these claims were not abandoned, it is

doubtful that the pending state-court actions for judicial review of the

Borough’s legislative and executive actions would constitute the sort of

“exceptional circumstances” to which Younger abstention applies.

Accordingly, we decline to abstain from exercising jurisdiction in

this case pursuant to Younger.

C. Federal Civil Rights Claims

Pompey Coal brings its federal civil rights claims, set forth in

Counts I, II, III, and IV,11 under 42 U.S.C. § 1983. Section 1983 provides

in pertinent 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 . . . .

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim,

the plaintiff must establish that the defendant, acting under color of state

law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

11 See supra note 8.

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).

1. Fourteenth Amendment Retaliation Claim

In Count I, the plaintiff asserts a § 1983 retaliation claim. To plead

a § 1983 retaliation claim, a plaintiff must allege: “(1) constitutionally

protected conduct, (2) retaliatory action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights, and (3) a

causal link between the constitutionally protected conduct and the

retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d

Cir. 2006). Section 1983 retaliation claims are typically brought under

the First Amendment. See id. at 298 n.6 (finding no § 1983 claim for

retaliation arising under the Fourteenth Amendment’s equal protection

clause); accord R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 439–

40 (6th Cir. 2005); Watkins v. Bowden, 105 F.3d 1344, 1354–55 (11th Cir.

1997); Long v. Laramie Cty. Cmty. Coll. Dist., 840 F.2d 743, 752 (10th

Cir. 1988). But see Higgins v. Beyer, 293 F.3d 683, 694–95 (3d Cir. 2002)

(referencing due process in reinstating claim that plaintiff suffered

retaliation for the exercise of his constitutionally protected right of access

to the courts).

Regardless, the amended complaint here specifically alleges that

the defendants adopted and implemented Ordinance No. 3, re-zoning

Pompey Coal’s remaining property within the Borough, in retaliation for

its April 2016 sale of a parcel of land to Lackawanna Energy. The

amended complaint characterizes the April 2016 sale of land as a

constitutionally protected exercise of its right to own, use, develop, and

sell its real property—a right purportedly arising under the Fourteenth

Amendment. But it is state law that creates the property rights protected

by the Fourteenth Amendment. See Bd. of Regents of State Colls. v. Roth,

408 U.S. 564, 577 (1972); Kelly v. Borough of Sayreville, 107 F.3d 1073,

1077 (3d Cir. 1997); Hazzouri v. W. Pittston Borough, 416 F. Supp. 3d

405, 415 (M.D. Pa. 2019); see also DeKalb Stone, Inc. v. Cty. of DeKalb,

106 F.3d 956, 959 (11th Cir. 1997) (“It is well established that land use

rights, as property rights generally, are state-created rights.”) (citing

Roth, 408 U.S. at 577). Some federal constitutional rights may touch on

these state-created property rights. For example, the Fourteenth

Amendment protects against the deprivation of these state-created

property rights without due process of law, the Fifth Amendment

protects against governmental taking of property without just

compensation, and the First Amendment may protect certain uses of

property implicating, inter alia, the right to free association or free

exercise of religion.12 But the right to own or use property itself does not

implicate the exercise of a substantive federal constitutional right. See

Tucker Indus. Liquid Coatings, Inc. v. Borough of E. Berlin, 656 Fed.

App’x 1, 6 (3d Cir. 2016) (“[The] use of the property does not implicate a

separately protected constitutional right . . . .”); cf. Nat’l W. Life Ins. Co.

v. Commodore Cove Improvement Dist., 678 F.2d 24, 26 (5th Cir. 1982)

(“The right freely to alienate real property is not a ‘fundamental right’

that calls for application of strict scrutiny.”). See generally Charles H.

Clarke, The Owl and the Takings Clause, 25 St. Mary’s L.J. 693, 709

(“The constitutional right to own and use land . . . is not an enumerated

constitutional right.”); id. at 722 (“A federal constitutional right to own

and use property . . . does not exist.”). Thus, the amended complaint has

failed to allege any constitutionally protected conduct in support of its

§ 1983 retaliation claim.

12 We note that the plaintiff has not asserted a Fifth Amendment

takings claim in this action. As we have noted, it does assert Fourteenth

Amendment substantive and procedural due process claims.

The plaintiff’s attempts to recast this claim in its brief as a First

Amendment retaliation claim, suggesting there—somewhat circularly—

that the defendants’ adoption and implementation of Ordinance No. 3

was motivated by Pompey Coal’s “standing up to the rogue legislative

process employed by the [d]efendants in drafting and promoting the

zoning ordinance.” (Doc. 25, at 16.) But “[i]t is axiomatic that the

complaint may not be amended by the briefs in opposition to a motion to

dismiss.” Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,

181 (3d Cir. 1988); see also Damiano v. Scranton Sch. Dist., 135 F. Supp.

3d 255, 279 (M.D. Pa. 2015); Adv. Fluid Sys., Inc. v. Huber, 28 F. Supp.

3d 306, 331 n.14 (M.D. Pa. 2014); Sites v. Nationstar Mortg. LLC, 646 F.

Supp. 2d 699, 712 (M.D. Pa. 2009). Although “[a] party does not need to

plead specific legal theories in the complaint, as long as the opposing

party receives notice as to what is at issue in the lawsuit,” Elec. Constr.

& Maint. Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 622 (9th Cir. 1985),

the § 1983 retaliation claim articulated in the plaintiff’s counseled

amended complaint clearly and unequivocally asserts that the

defendants retaliated against Pompey Coal for its sale of property to

Lackawanna Energy, and it does not plead sufficient facts to support a

plausible claim that the defendants retaliated against Pompey Coal for

its exercise of any First Amendment rights. To the extent such facts can

be marshaled, the plaintiff may attempt to plead a plausible First

Amendment retaliation claim in a second amended complaint.

Accordingly, Count I of the amended complaint will be dismissed.

2. Fourteenth Amendment Substantive Due Process Claim

In Count II, the plaintiff asserts a § 1983 substantive due process

claim. Substantive due process protects against arbitrary government

action, both at the executive and legislative levels. See Cty. of Sacramento

v. Lewis, 523 U.S. 833, 845–46 (1998). Pompey Coal contends that the

defendants acted in an arbitrary fashion by adopting Ordinance No. 3,

rezoning Pompey Coal’s property from M-1A classification to R-2 and IAC

classifications, and by rejecting Pompey Coal’s land development plan.

The first step in evaluating a substantive due process claim is to

determine whether the plaintiff has alleged a property interest protected

by the Fourteenth Amendment’s due process clause. See Chainey v.

Street, 523 F.3d 200, 219 (3d Cir. 2008); Giuliani v. Springfield Twp., 238

F. Supp. 3d 670, 695 (E.D. Pa. 2017), aff’d, 726 Fed. App’x 118 (3d Cir.

2018). Here, the plaintiff owns a parcel of land affected by the Borough’s

adoption of the new zoning ordinance and map and its application of the

zoning ordinance and map in rejecting a land development plan

submitted to the Borough planning commission for approval. This is

sufficient to establish a property interest entitled to due process

protection. See Chainey, 523 F.3d at 219 (“[O]wnership is a property

interest worth of substantive due process protection.”); Giuliani, 238 F.

Supp. 3d at 695; Flanders v. Dzugan, 156 F. Supp. 3d 648, 665 (W.D. Pa.

2016).

Next, we must determine the applicable substantive legal standard

for evaluating whether the government’s action violated substantive due

process. The Third Circuit has distinguished between legislative and

executive actions when faced with a substantive due process claim. See

Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006).

Here, the plaintiff presents both a facial challenge to the Borough’s

adoption of a zoning ordinance and map—a legislative act—and the

application of that zoning ordinance and map by the Borough planning

commission’s rejection of the plaintiff’s land development plan—an

administrative or executive act.

We start with the legislative act—the adoption of Ordinance No. 3.

As the Third Circuit has observed, “federal judicial interference with a

state zoning board’s quasi-legislative decisions, like invalidation of

legislation for ‘irrationality’ or ‘arbitrariness,’ is proper only if the

governmental body could have had no legitimate reason for its decision.’”

Pace Res., Inc. v. Shrewsbury Twp., 808 F.2d 1023, 1034 (3d Cir. 1987)

(emphasis in original). Thus, to state a substantive due process claim

with respect to a legislative act, a plaintiff must “allege facts that would

support a finding of arbitrary or irrational legislative action by the

[municipality].” Id. at 1035. Here, Pompey Coal has alleged that the

adoption of Ordinance No. 3, re-zoning its property from an M-1A

industrial classification to less permissive R-2 residential and IAC

mixed-use classifications, was inconsistent with the then-existing

Borough comprehensive plan. But, as in Pace, “[t]his shows only a change

of legislative position, not irrationality.” See id. The amended complaint

also alleges that the adoption of this new zoning ordinance and map was

motivated, at least in some part, by Pompey Coal’s April 2016 sale of a

parcel of land to Lackawanna Energy for the construction of a power

plant, which outraged the defendants. As in Pace, the facts alleged here

by the plaintiff suggest that one of the purposes of this legislative change

was to “curb industrial development,” and thus, as pleaded, this case

merely “involves a difference of opinion on how much industrial

development is in the best interests of the [Borough] and how that

quantum of industrial development should be achieved.” Id. at 1035 &

n.8. Based on the allegations of the amended complaint, one can easily

articulate a rational connection between the adoption of the new zoning

ordinance and map and the legitimate purpose of curbing industrial

development. See id. at 1035.

We turn then to the executive act—the rejection of Pompey Coal’s

land development plan. “Government [executive] action does not violate

substantive due process when merely prompted by an ‘improper motive.’”

Giuliani, 238 F. Supp. 3d at 696. Rather, “executive action violates

substantive due process only when it shocks the conscience.” United

Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 399–

400 (3d Cir. 2003). “While there is no ‘calibrated yard stick’ upon which

to measure such conduct, the Supreme Court has recognized that ‘only

the most egregious official conduct’ qualifies.” Giuliani, 238 F. Supp. 3d

at 696; see also Lewis, 523 U.S. at 846, 847. “[T]his test is designed to

avoid converting federal courts into super zoning tribunals.” Eichenlaub

v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004).

In [Eichenlaub], the Court of Appeals provided the

lower courts with some guidance on what qualifies as

conscience-shocking behavior in the land use context,

including: evidence of “corruption or self-dealing,” the

hampering of development in order to interfere

with otherwise constitutionally-protected activity,

municipal action reflecting “bias against an ethnic

group,” or evidence indicating a “virtual taking” of the

claimant’s property. By the same token, the Court of

Appeals listed examples of conduct that is not

sufficiently egregious or outrageous, such as: applying

certain regulations to one parcel of property but not to

others, making unannounced or unnecessary

inspections of the property, delaying permits and

approvals, improperly increasing tax assessments or

“maligning or muzzling” claimants.

Giuliani, 238 F. Supp. 3d at 696 (quoting Eichenlaub, 385 F.3d at 286)

(citation and internal brackets omitted); see also Flanders, 156 F. Supp.

3d at 668.

Here, the amended complaint has alleged that the defendants

applied a pending or newly adopted zoning ordinance that conflicted with

the Borough’s existing comprehensive plan, that it treated the plaintiff

differently from at least one other nearby property owner, and failed to

comply with state procedural laws that governed the notice and hearing

required for municipalities to amend their zoning ordinances and maps.13

The exhibits attached to the amended complaint, however, include the

written letter from the Borough planning commission chair informing

Pompey Coal that its land development plan had been rejected as

deficient. The letter cited Pompey Coal’s failure to comply with provisions

of the Borough’s subdivision and land development ordinance (“SALDO”),

which required the submission of additional copies of a planning module

required by the Pennsylvania Sewage Facilities Act and the submission

of a proposed layout of fire hydrants required by the SALDO itself. (Doc.

10-8.) The amended complaint simply contains no allegations that rise

above the level of an ordinary zoning dispute to the level of “conscience

shocking” conduct by the defendants in connection with the rejection of

Pompey Coal’s land development plan. See Giuliani, 238 F. Supp. 3d at

697; see also Giuliani, 726 Fed. App’x at 123 (finding no substantive due

process violation where “there is no evidence of corruption or self-dealing,

13 The amended complaint also appears to imply some personal

animus by one of the defendants, Borough president Crinella, who does

not appear to sit on the planning commission. But even if attributed to

the planning commission and its decision to reject Pompey Coal’s land

development plan, personal or political animus is not sufficient to meet

the “shocks the conscience” standard. See Tucker, 656 Fed. App’x at 6–7;

Flanders, 156 F. Supp. 3d at 670.

such as bribery or an attempt by a [municipal] official to acquire the

property for himself or herself”); E. Rockhill Twp. v. Richard E. Pierson

Materials Corp., 386 F. Supp. 3d 493, 499 (E.D. Pa. 2019) (“Absent claims

of corruption, self-dealing, bias against an ethnic group, or intent to

interfere with constitutionally-protected activity, the Third Circuit and

district courts have hesitated to find official behavior in the land use

context conscience-shocking.”).

Accordingly, Count II of the amended complaint will be dismissed

with respect to the plaintiff’s substantive due process claim.

3. Fourteenth Amendment Procedural Due Process Claim

In Count II, the plaintiff also asserts a § 1983 procedural due

process claim. The plaintiff bases this claim on the defendants failure to

strictly comply with various procedural requirements imposed by state

law.

“A procedural due process claim is subject to a two-stage inquiry:

(1) whether the plaintiff has a property interest protected by procedural

due process, and (2) what procedures constitute due process of law.”

McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 639 (M.D. Pa.

2014); see also Giuliani, 238 F. Supp. 3d at 690. For the reasons given in

the preceding section, it is clear that the plaintiff’s ownership of the

affected property satisfies the first stage of this inquiry.

With respect to the second stage of this inquiry, Pompey Coal

contends that its procedural due process rights were violated because the

defendants initially met “outside the public purview” for initial

discussions regarding the re-zoning of Pompey Coal’s property, in

violation of state open-meeting laws. It further contends that the

defendants failed to properly advertise the proposed ordinance prior to

the public meetings at which it was considered—it argues that the

defendants improperly calculated the 7- and 14-day pre-meeting periods,

publishing notice of the hearings 6 and 13 days beforehand instead.

Finally, it contends that these non-public discussions and the defendants’

failure to provide adequate notice under these state laws denied it the

notice and opportunity to be heard that procedural due process requires.

But it is well-established “that mere violation of a state statute does

not infringe the federal Constitution, and that state rather than federal

courts are the appropriate institutions to enforce state rules.” United

States v. Laville, 480 F.3d 187, 192 (3d Cir. 2007) (internal quotation

marks and brackets omitted). State open meeting laws confer no right to

be heard upon any individual; the only purpose of requiring open

meetings is to assure public accountability of governmental

decisionmakers. Skepton v. Bucks Cty., 613 F. Supp. 1013, 1021–22 (E.D.

Pa. 1985) (dismissing procedural due process claim based on violation of

Pennsylvania open meeting and “sunshine” laws). Moreover, “a

municipality’s mere failure to comply with the time limitation in a

statute does not implicate a deprivation of constitutional due process

rights,” particularly where the plaintiff has suffered no demonstrable

prejudice as a result of the technical defect. Gladstone Partners, LP v. E.

Union Twp., 26 A.3d 542, 549 (Pa. Commw. Ct. 2011) (holding that, in

the absence of any evidence of prejudice to the appellant, “publication of

the proposed ordinance six days before [a township supervisor’s meeting

at which the zoning ordinance was adopted] substantially complied with

the 7-day time limitation, and otherwise met the statutory

requirements”); cf. Dennis v. Dejong, 557 Fed. App’x 112, 118 (3d Cir.

2014) (“Although the petition was not filed in strict compliance with the

time required by state law, the question of ‘what process is due’ for

purposes of the Due Process Clause is a matter of federal constitutional

law, not state law.”); Gibson v. Pa. Pub. Utilities Comm’n, No. 1:15-cv-

00855, 2015 WL 3952777, at *7 (M.D. Pa. June 18, 2015) (finding that, in

the absence of any alleged prejudice, a state administrative law judge’s

issuance of an initial decision one day after a 90-day statutory period

expired was patently insufficient to establish an unreasonable delay).

Also, notwithstanding the plaintiff’s characterization of the facts in its

brief, the allegations of the amended complaint clearly demonstrate that

Pompey Coal received advance notice of the March and April 2019

Borough Council public meetings at which Ordinance No. 3 was

considered and adopted, and that Pompey Coal in fact attended and

voiced its objections to adoption of the new zoning ordinance and map.

Finally, we note that “the focus in procedural due process claims is

on the adequacy of the remedial procedure, and not on the government’s

actual actions that allegedly deprived the individual of his liberty or

property interest.” Giuliani, 726 Fed. App’x at 122 (emphasis added); see

also K.S.S. v. Montgomery Cty. Bd. of Comm’rs, 871 F. Supp. 2d 389, 397–

98 (E.D. Pa. 2012). “[A] state provides constitutionally adequate

procedural due process when it provides reasonable remedies to rectify a

legal error by a local administrative body.” Giuliani, 726 Fed. App’x at

118.

In the context of land use disputes, the Court of

Appeals has held that state and municipal officials are

constitutionally obliged to offer a means by which

individuals may challenge zoning restrictions and

other adverse land use decisions. . . . The Court of

Appeals has expressly recognized that the

Pennsylvania Municipalities Code provides a

constitutionally adequate means for those aggrieved by

a land use decision to challenge the action in

administrative and judicial proceedings.

Giuliani, 239 F. Supp. 3d at 690. The plaintiff in this case has availed

itself of this process, instituting state-court actions for judicial review of

these same land-use actions by the Borough, which remain pending.

Accordingly, Count II of the amended complaint will be dismissed

with respect to the plaintiff’s procedural due process claim.

4. Fourteenth Amendment Equal Protection Claim

In Count III, the plaintiff asserts a § 1983 equal protection claim.

The Supreme Court of the United States has “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.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To

state a claim under this theory, “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, 239

(3d Cir. 2006). “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.

App’x 251, 259 (3d Cir. 2010) (quoting Heller v. Doe, 509 U.S. 312, 320

(1993)). Notably, an equal protection claim is not ‘a device to dilute the

stringent requirements needed to show a substantive due process

violation.’” Giuliani, 238 F. Supp. 3d at 701 (quoting Eichenlaub, 385

F.3d at 287).

“To be ‘similarly situated,’ parties must be ‘alike in all relevant

aspects.’” Flanders, 156 F. Supp. 3d at 677 (quoting Perano v. Twp. of

Tilden, 423 Fed. App’x 234, 238 (3d Cir. 2011)).

Thus, the proponent of the equal protection violation

must show that the parties with whom he seeks to be

compared have engaged in the same activity vis-à-vis

the government entity without such distinguishing or

mitigating circumstances as would render the

comparison inutile. In cases involving zoning or land-

use disputes, courts consider the similarity of the

properties being compared, including their physical

characteristics and their ‘similarities in the eyes of a

defendant.”

Giuliani, 238 F. Supp. 3d at 702 (citation and internal quotation marks

omitted).

Here, beyond conclusory allegation that the ordinance “singles out

Pompey Coal from other similarly situated classes of property owners”

(Doc. 10 ¶ 79), the plaintiff has no facts whatsoever upon which to base a

plausible claim that it was treated differently from others similarly

situated.

When alleging the existence of similarly situated

individuals, a plaintiff “cannot use allegations . . . that

amount to nothing more than ‘conclusory, boilerplate

language’ to show that he may be entitled to relief,” and

“bald assertion[s] that other[s] . . . were treated in a

dissimilar manner” will not survive dismissal. Instead,

the plaintiff must allege “occasions or circumstances”

or different treatment.

Dunmore Sch. Dist. v. Pa. Interscholastic Athletic Ass’n, ___ F. Supp. 3d

____, 2020 WL 7212874, at *12 (M.D. Pa. Dec. 7, 2020) (quoting Young v.

New Sewickley Twp., 160 Fed. App’x 263, 266 (3d Cir. 2006)) (alterations

in original). The amended complaint mentions a purchase of land, also

zoned M-1A, by Trammell Crow, which was allegedly treated more

favorably than Pompey Coal’s anticipated sale to Northpoint, but there

are no facts alleged to suggest that these two land owners were in any

way similarly situated. The amended complaint does not allege facts

regarding the location of the parcel purchased by Trammell Crow, its

characteristics, the nature of Trammell Crow’s use of that land, or that

Trammell Crow sought approval of a similar land development plan.

Accordingly, Count III of the amended complaint will be dismissed.

5. Federal Civil Rights Conspiracy Claim

In Count IV, the plaintiff asserts what appears to be a § 1985 claim

for conspiracy to violate civil rights.

The elements of such a cause of action are: 1) a

conspiracy; 2) motivated by a racial or class-based

discriminatory animus designed to deprive, directly or

indirectly, any person or class of persons of the equal

protection of the laws; 3) an act in furtherance of the

conspiracy; and 4) an injury to person or property or

the deprivation of any right or privilege of a citizen of

the United States.

Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 430 (M.D. Pa. 2009).

In its brief, the plaintiff concedes that it has not alleged any racial or

class-based discriminatory animus, but contends that reference to § 1985

was a typographical error. (Doc. 25, at 17 n.2.)

The plaintiff contends that this claim should be considered as claim

of conspiracy to violate civil rights under § 1983 instead. To state a claim

for conspiracy under § 1983, “a plaintiff must allege: (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.” Marchese v.

Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000). As discussed in the

preceding sections, the plaintiff has failed to state a claim with respect to

its retaliation claim, its substantive and procedural due process claims,

and its equal protection claims under § 1983. “There can be no civil

conspiracy to commit an unlawful act under § 1983 where the plaintiff

has not proven a deprivation of a constitutional or federal statutory right

or privilege.” Rink v. Ne. Educ. Intermediate Unit 19, 717 Fed. App’x 126,

141 (3d Cir. 2017).

Accordingly, Count IV of the amended complaint will be dismissed.

6. Leave to Amend

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile, Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). In its brief, the plaintiff requested leave to amend if claims are

dismissed, and it does not appear to us that amendment would be futile.

Moreover, the defendants have stated in their reply brief that they do not

oppose the plaintiff’s request for leave to amend. Therefore, the amended

complaint will be dismissed with leave to amend.

D. State-Law Tort Claims

In addition to the federal civil rights claims set forth in Counts I,

II, III, and IV, the amended complaint has asserted state-law claims in

Counts V, VI, and VII.14 But where a district court has dismissed all

claims over which it had original jurisdiction, the Court may decline to

exercise supplemental jurisdiction over state-law claims. 28 U.S.C.

§ 1367(c)(3). Whether the Court will exercise supplemental jurisdiction

is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).

That decision should be based on “the values of judicial economy,

convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been

dismissed and only state-law claims remain, the balance of these factors

indicates that these remaining claims properly belong in state court.

Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this

case from the ordinary one, the balance of factors in this case “point[s]

14 Based on the plaintiff’s concession and withdrawal, we will

dismiss its state law claim set forth in Count VIII.

toward declining to exercise jurisdiction over the remaining state law

claims.” See Cohill, 484 U.S. at 350 n.7. Therefore, if a second amended

complaint is not timely filed by the plaintiff, the remaining state-law

claims will be remanded to the Court of Common Pleas of Lackawanna

County, Pennsylvania, for further proceedings. See Cohill, 484 U.S. at

357.

IV. CONCLUSION

For the foregoing reasons, the motion to dismiss will be granted,

and the plaintiff’s federal civil rights claims will be dismissed with leave

to amend.

An appropriate order follows.

Dated: March 31, 2021 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge