Garanin v. City of Scranton

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VSEVOLOD GARANIN, et al. : Civil No. 3:19-CV-1275

:

Plaintiffs, :

: (Magistrate Judge Carlson)

v. :

:

CITY OF SCRANTON, et al. :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

Pending before the court is the defendants’ motion to dismiss the plaintiffs’

amended complaint. (Doc. 25). This is the second civil action before us filed by

Vsevolod Garanin and his associated entities against the City of Scranton and others,

and in deciding the instant motion, we certainly do not write upon a blank slate.

Indeed, Plaintiff Garanin brought this action in July of 2019, and brought a similar

action in November of 2014. Garanin v. City of Scranton Dept. of Licensing,

Inspections and Permits, et al., 3:14-CV-2129.

Plaintiff Garanin is a Scranton-area businessman, owning a controlling share

in Garanin Properties LLC, the parent company holding Auric Investment Holdings

LLC (“Auric”), Ferndrive LLC (“Ferndrive”), and Rock Property Holdings LLC

(“Rock Property”), the co-plaintiffs in this case. These wholly-owned subsidiaries

own the properties which give rise to Garanin’s disputes in this second complaint,

including 300-302 William Street, 126-128 School Street, 614 Willow Street, and

1208-1210 Philo Street. The defendants in this case are William Courtright, the

former mayor of the City of Scranton; Patrick Hinton, the former Director of the

City of Scranton’s Department of Licensing, Inspections, and Permits; Lori Uher,

the Officer of Rental Registration for the City’s Department of Licensing,

Inspections, and Permits; Tamilyn Carmona, a Code Enforcement Officer for the

City’s Department of Licensing, Inspections, and Permits; and the City of Scranton.

All defendants worked for the City during all pertinent portions of the plaintiffs’

complaint.

Previously the defendants moved to dismiss the complaint or, in the

alternative, to consolidate this action with Garanin’s prior lawsuit. We granted the

motion in part, dismissing several of the plaintiffs’ claims without prejudice to the

filing of an amended complaint. (Doc. 19). Garanin then filed an amended

complaint, which is now the operative pleading in this case. (Doc. 22). The

defendants subsequently filed the instant motion to dismiss, arguing that the several

of the plaintiffs’ claims should be dismissed as to certain defendants. (Doc. 25).

After consideration, we agree with the defendants that the plaintiffs have not

alleged sufficient facts to state a claim for relief against certain defendants with

respect to the plaintiffs’ procedural due process, Fourth Amendment, malicious

prosecution, and state law tort claims. However, we find that the plaintiff has stated

a malicious prosecution claim based upon a narrow and specific set of facts.

Accordingly, for the following reasons, the motion to dismiss will be granted in part

and denied in part.

II. Background

In the eight-count amended complaint presently before us, Garanin sets forth

several claims under 42 U.S.C. § 1983 for violations of procedural and substantive

due process rights, equal protection, the First Amendment, and protections against

unreasonable searches and seizures. In addition, the complaint sets forth claims for

Monell1 liability, state law malicious prosecution, and tortious interference with

existing and prospective business and contractual relationships. For purposes of the

instant motion, the defendants contest only four of these claims—the procedural due

process claim (Count I) brought against Defendant Courtright; the Fourth

Amendment search and seizure claim (Count V) brought against Defendants

Courtright and Carmona; the state law malicious prosecution claim (Count VII)

against Defendants Courtright, Hinton and Carmona; and the claim for tortious

interference (Count VIII) against Defendant Courtright.2

1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

2 As we will explain, the plaintiffs have conceded to the dismissal of several claims

against several individual defendants. (Doc. 54, at 5-6).

The facts underlying these claims in the plaintiffs’ amended complaint are as

follows:

According to the amended complaint, Garanin, through Auric, entered into a

contract to replace the roof at the William Street property in September 2018. (Doc.

22, ¶ 24). Auric was issued a permit in October 2018 to remove and replace the roof

of the William Street property. (Id., ¶ 26). However, on October 21, 2018, the City

condemned the William Street property after City officials allegedly

mischaracterized the state of the property, including the roof. (Id., ¶¶ 27, 30).

Garanin, on behalf of Auric, appealed the condemnation to the Housing Appeals

Board, but the condemnation was ultimately upheld on December 4, 2018. (Id., ¶¶

31, 34). Garanin immediately appealed to the Lackawanna County Court of

Common pleas, and as of the date the amended complaint was filed, the appeal was

still pending. (Id., ¶ 36). During the pendency of the appeal, Defendant Hinton

allegedly directed PPL to removed four electric meters from the property. (Id., ¶ 32).

In addition, it is alleged that after the condemnation, City officials harassed the

tenants to vacate the property, even though the appeal was still pending. (Id., ¶ 37).

Thus, in January and February of 2019, the City fined Auric twice for

Prohibited Occupancy. (Id., ¶¶ 43-44). Auric was ultimately found not guilty of the

January 2019 citation, but was found guilty of the February 2019 citation. (Id., ¶¶

43,45).3 In addition to these citations, Garanin alleges a host of other roadblocks

perpetrated by the defendants that hindered the reopening of the condemned William

Street property. (Id., ¶¶ 51-68). These roadblocks included Inspector Carmona’s

alleged surveillance of the William Street property and search of the business records

related to the property. (Id., ¶¶ 51-53).

The amended complaint further alleges that Ferndrive’s School Street

property remained condemned due to Defendant Hinton arbitrarily denying a permit

to release the property from condemnation. (Id., ¶ 70). The plaintiffs assert that

Hinton withheld the permit on the basis of unpaid rental registration fees, which the

complaint alleges is not grounds to deny a permit under the City’s ordinances. (Id.,

¶¶ 70-73).

As to the Willow Street property, the plaintiffs allege that in January of 2019,

Defendant Uher and the City closed this property without any warning due to

complaints about heating in the building. (Id., ¶¶ 77, 79). According to the

complaint, no inspection was ever performed to determine whether there was an

issue with the heating or any other hazardous conditions. (Id., ¶¶ 78, 83). Thus, the

3 At the time the amended complaint was filed, the February 2019 citation, of

which Auric was found guilty in the Lackawanna County Court of Common Pleas,

was on appeal to the Pennsylvania Superior Court. However, on March 9, 2021,

the Superior Court upheld the Common Pleas Court’s finding of guilty regarding

the February 2019 Prohibited Occupancy citation. Commonwealth of Pa. v. Auric

Investment Holdings LLC, CP-35-0000081-2019.

plaintiffs contend that the City violated the International Property Maintenance

Code, which requires written notice by the City and a reasonable period of time to

cure the problem. (Id., ¶ 84). Ferndrive filed an application with the City Housing

Appeals Board and requested a hearing, but that hearing was allegedly delayed by

Hinton, who would not accept a signature of Ferndrive’s authorized agent. (Id., ¶¶

87, 89-90). Finally, a hearing was held on May 16, 2019, during which the Board

upheld the City’s decision to close the property. (Id., ¶ 91). Ferndrive appealed to

the Court of Common Pleas, and that appeal was still pending as of the date the

amended complaint was filed. (Id., ¶ 92-93).

Finally, as to the Philo Street property, the complaint alleges that Defendant

Carmona condemned the property after UGI had red-tagged a furnace in the second-

floor unit. (Id., ¶ 95). This condemnation occurred without any notice to Rock

Property or opportunity to cure the defect, and without a hearing in accordance with

the Property Maintenance Code. (Id., ¶ 105). While the complaint concedes that a

hearing is not required “if there is an immediate health and safety risk,” it is asserted

that the red-tagging of the furnace remedied any immediate health or safety concern.

(Id., ¶¶ 108-09). Rock Property appealed the decision to the Appeals Board, but as

with the Willow Street Property, it is alleged that Hinton delayed a hearing on the

matter by refusing to accept the signature of Rock Property’s authorized agent. (Id.,

¶ 113). A hearing was held on May 16, 2019, and the Board upheld the City’s

decision. (Id., ¶ 114). Rock Property appealed to the Court of Common Pleas, and

as of the date of the amended complaint, this appeal was still pending. (Id., ¶ 115).

In addition, scattered throughout the amended complaint are allegations that

Defendant Courtright, as former mayor of Scranton, was the final policymaker for

the City. (Id., ¶¶ 69, 76, 94, 149). Thus, the complaint seems to assert that Defendant

Courtright is liable for the actions of the other individual defendants, who were

officials in departments that the mayor supervised. The complaint further attempts

to place liability on Defendant Courtright by endeavoring to link his federal criminal

guilty plea in July of 2019 to the incidents alleged in the amended complaint. (Id.,

¶¶ 150-54, 162).

Thus, the plaintiffs brought this civil rights action on July 23, 2019 and filed

an amended complaint on January 7, 2020, asserting violations of procedural and

substantive due process, equal protection, the First Amendment, and protections

against unreasonable searches and seizures. In addition, the complaint sets forth

claims for Monell liability, malicious prosecution, and tortious interference with

existing and prospective business and contractual relationships.

The defendants have now moved to dismiss several claims against the

individual defendants in this case, arguing that the plaintiffs have failed to allege

facts sufficient to establish their claims. (Doc. 25). On this score, the plaintiffs have

conceded that the following claims should be dismissed as to the following

defendants: Count I against Defendants Uher and Oleski as to the William Street

property, and Defendants Carmona and Oleski as to the Willow Street property;

Count V against Defendants Uher and Oleski as to the William Street property,

Defendants Carmona, Uher, and Oleski as to the School Street property, and

Defendants Carmona and Oleski as to the Willow Street property; and Count VII

against Defendants Uher and Oleski as to the William Street property. Thus, these

claims will be dismissed as to these defendants.

Accordingly, the defendants contest only the following four claims—the

procedural due process claim (Count I) brought against Defendant Courtright; the

Fourth Amendment search and seizure claim (Count V) brought against Defendants

Courtright and Carmona; the state law malicious prosecution claim (Count VII)

against Defendants Courtright, Hinton and Carmona; and the claim for tortious

interference (Count VIII) against Defendant Courtright. On this score, the

defendants argue that the plaintiffs have not set forth any facts showing that

Defendant Courtright had personal involvement in the property disputes. Moreover,

they contend that Defendant Carmona’s actions with respect to the William Street

property did not constitute a search in violation of the Fourth Amendment. Finally,

they assert that the plaintiffs have failed to state a claim for malicious prosecution

as a matter of law.

After consideration, we agree with the defendants that the amended complaint

fails to allege facts sufficient to state a procedural due process, Fourth Amendment,

malicious prosecution, and state law tort claim against Defendant Courtright. We

further find that the plaintiff has failed to state a Fourth Amendment claim against

Defendant Carmona. Finally, we find that the plaintiffs have failed to state a

malicious prosecution claim based on the condemnation of the William Street

property and the February 2019 Prohibited Occupancy citation, but that the

malicious prosecution claim based on the January 2019 prohibited occupancy

citation should proceed forward. Accordingly, the motion to dismiss will be granted

in part and denied in part.

II. Discussion

A. Motion to Dismiss—Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. The Claims Against Defendant Courtright in Counts I, V, VII and

VIII Will Be Dismissed.

The defendants’ motion asserts that the procedural due process, search and

seizure, malicious prosecution and tortious interference claims against former Mayor

Courtright should be dismissed. We agree.

As we have noted, the only allegations in the complaint that involve

Defendant Courtright assert that he was the final policymaker for the City as the

mayor, and thus, should be liable for the actions of the other individual defendants

with respect to these claims. Notably absent from the complaint are well-pleaded

facts showing that Courtright directed, approved or acquiesced in the specific actions

which form the gravamen of this complaint. With respect to the claims brought under

§ 1983—procedural due process and unlawful search and seizure—more is needed.

Indeed, to state a § 1983 claim against a supervisory defendant, a plaintiff

must show that this supervisory defendant actively deprived him of a right secured

by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902, 907 (3d

Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 65 L. Ed. 2d

555 (1980). It is well settled that “[a] defendant in a civil rights action must have

personal involvement in the alleged wrongdoing; liability cannot be predicated

solely on the operation of respondeat superior. Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence.”

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Applying these

benchmarks, courts have frequently held that, without allegations of supervisory

knowledge and approval of subordinates’ actions, a plaintiff may not maintain an

action against a supervisor based upon the misdeeds of his subordinates. O’Connell

v. Sobina, No. 06-238, 2008 WL 144199, at *21 (W.D. Pa. Jan. 11, 2008);

Neuburger v. Thompson, 305 F. Supp. 2d 521, 535 (W.D. Pa. 2004).

With respect to supervisory liability claims, the Third Circuit has noted that

“[n]umerous courts, including this one, have expressed uncertainty as to the viability

and scope of supervisory liability after Iqbal.” Bistrian v. Levi, 696 F.3d 352, 366 n.

5 (3d Cir. 2012) (internal quotations and citations omitted). To the extent that

supervisory liability survives after Iqbal, the scope of that liability is clearly and

narrowly defined. On this score, there are two theories of supervisory liability which

the Court of Appeals has recognized:

[O]ne under which supervisors can be liable if they “established and

maintained a policy, practice or custom which directly cause [the]

constitutional harm” and another under which they can be liable if they

“participated in violating plaintiff's rights, directed others to violate

them, or as the person[s] in charge, had knowledge of and acquiesced

in [their] subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne

Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (second

alteration in original).

Santiago, 629 F.3d at 129.

To incur liability as a supervisory official, it “is not enough for a plaintiff to

argue that the constitutionally cognizable injury would not have occurred if the

superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118

(3d Cir. 1989). The imposition of liability in a § 1983 action relies on a showing by

the plaintiff that the defendant had “personal involvement in the alleged wrongs.”

Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir.

2015) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)). Importantly, a

plaintiff “cannot predicate defendants’ liability on a respondeat superior theory.” Id.

Rather, as we have explained, to state a valid cause of action, the plaintiff

must demonstrate the defendants’ “personal involvement in the alleged wrongs.”

Chavarriaga, 806 F.3d at 222 (quoting Rode, 845 F.2d at 1207) (internal quotations

omitted). To set forth sufficient allegations of defendants’ personal involvement, the

plaintiff must describe “the defendant's participation in or actual knowledge of and

acquiescence in the wrongful conduct.” Id. Allegations of constructive knowledge

are not enough. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir.

1995)); Rode, 845 F.2d at 1201 n. 6. Instead, a plaintiff “must portray specific

conduct by state officials which violates some constitutional right.” Gittlemacker v.

Prasse, 428 F.2d 1, 3 (3d Cir. 1970).

On this score, viewing the complaint in a light favorable to the plaintiffs, we

find that the complaint has not sufficiently alleged facts to impose liability on

Defendant Courtright under § 1983. Rather, the complaint merely states and restates

the conclusory allegation that Defendant Courtright, as the former mayor of

Scranton, was the final policymaker for the City. (Doc. 22, ¶¶ 69, 76, 94, 149). The

complaint fails to allege any specific conduct by Courtright from which we could

infer that he was personally involved in the alleged wrongs with respect to Plaintiff

Garanin’s property disputes.4 Instead, it appears that the plaintiffs are trying to

impose liability upon Defendant Courtright under a theory of respondeat superior.

This they cannot do. Accordingly, we will dismiss the § 1983 claims in Counts I and

V as to Defendant Courtright.

In addition, we find that the plaintiffs have failed to state a malicious

prosecution claim against Defendant Courtright. In order to establish and ultimately

prevail on a claim for malicious prosecution in Pennsylvania, a plaintiff must show:

“(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding

ended in the plaintiff’s favor; (3) the proceeding was initiated without probable

cause; and (4) the defendants acted maliciously or for a purpose other than bringing

the plaintiff to justice.” Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa.

2000) (quoting Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996)); Haefner v.

Burkey, 626 A.2d 519, 521 (Pa. 1993). On this score, the amended complaint fails

to allege facts from which we could infer that Defendant Courtright initiated the

4 The plaintiffs also attempt to use Defendant Courtright’s federal criminal guilty

plea in any unrelated case as a basis for civil liability. We note, however, that this

type of transitive property of civil liability which would impute wrongdoing in one

case based upon misconduct in another case, is not recognized by the courts. Further,

there is nothing in the amended complaint which establishes that this criminal guilty

plea is related to the instant civil rights lawsuit.

criminal proceedings against them. As we have noted, the allegations against

Defendant Courtright are conclusory and amount to an assertion that Courtright, as

the former Mayor, was the final policymaker for the City. These bare allegations are

insufficient for us to conclude that Courtright was involved in any way in the

proceedings against the plaintiffs. Accordingly, this claim will be dismissed as to

Defendant Courtright.

Finally, the plaintiffs have failed to allege sufficient facts to state a claim

against Defendant Courtright for tortious interference with existing or prospective

business and contractual relationships. In Pennsylvania, a person may be liable if he

intentionally interferes with the performance of a contract between the plaintiff and

a third party, which causes the third party to refrain from performing the contract.

Walnut Street Assoc., Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa. Super.

Ct. 2009). Thus,

The necessary elements of the cause of actions are (1) the existence of

a contractual relationship between the complainant and a third party;

(2) an intent on the part of the defendant to harm the plaintiff by

interfering with that contractual relationship; (3) the absence of

privilege or justification on the part of the defendant; and (4) the

occasioning of actual damage as a result of the defendant’s conduct.

Id. (citations omitted). In addition, a defendant may be liable for interfering with a

prospective, as well as existing, contractual relationship, if he acts to intentionally

prevent the prospective relationship from occurring. Maverick Steel CO., L.L.C. v.

Dick Corp./Barton Malow, 54 A.3d 352, 355 (Pa. Super. Ct. 2012).

Here, as we have explained with respect to the § 1983 claims, the plaintiffs

have failed to plead any facts from which we could even infer that Defendant

Courtright engaged in specific conduct with the intent to interfere with the plaintiffs’

business relations, existing or prospective. The complaint does not allege that

Defendant Courtright took any action to either interfere with the plaintiffs’ existing

business relationships or to prevent the occurrence of new business relationships.

Rather, the complaint merely asserts bare allegations that Courtright, as the former

mayor, was responsible for policymaking for the City. Accordingly, this claim

against Defendant Courtright will be dismissed.

C. The Fourth Amendment Claim in Count V against Defendant

Carmona Regarding the Alleged Search of the William Street

Property Will Be Dismissed.

As we have noted, the plaintiffs have conceded the dismissal of several

defendants related to their Fourth Amendment claims concerning the William Street,

School Street, and Willow Street properties. We have also determined that this claim

fails with respect to Defendant Courtright, as the plaintiffs have not sufficiently

pleaded facts to show his personal involvement. Thus, the plaintiffs’ remaining

Fourth Amendment Claim against Defendant Carmona is based on Carmona’s

alleged surveillance of the William Street property and her knowledge related to the

tenants at the William Street property, which the plaintiffs allege constituted a de

facto search in violation of the Fourth Amendment.

As we explained when analyzing this claim in our prior Memorandum

Opinion, the Fourth Amendment protects against “unreasonable searches and

seizures.” U.S. Const. amend. IV. “Administrative searches, such as for code and

zoning enforcement, can constitute ‘significant intrusions upon the interests

protected by the Fourth Amendment . . . .’ ” Lease v. Fishel, 2010 WL 1390607, at

*7 (M.D. Pa. Mar. 31, 2010) (citing Camara v. Mun. Court of City and County of

San Francisco, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed.2d 930 (1967)). The

threshold inquiry for such a claim is whether the government’s conduct amounted to

a “search.” Id. (citing United States v. Hartwell, 436 F.3d 174, 177 (3d Cir. 2006)).

A search occurs for Fourth Amendment purposes when “the government violates a

subjective expectation of privacy that society recognizes as reasonable.” Kyllo v.

United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (citing Katz

v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan,

J., concurring)).

The Supreme Court has also taken up the question of the propriety of

administrative searches:

Though there has been general agreement as to the fundamental

purpose of the Fourth Amendment, translation of the abstract

prohibition against ‘unreasonable searches and seizures’ into workable

guidelines for the decision of particular cases is a difficult task which

has for many years divided the members of this Court. Nevertheless,

one governing principle, justified by history and by current experience,

has consistently been followed: except in certain carefully defined

classes of cases, a search of private property without proper consent is

‘unreasonable’ unless it has been authorized by a valid search warrant.

See, e.g., Stoner v. State of California, 376 U.S. 483, 84 S. Ct. 889, 11

L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96

L.Ed. 59; McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93

L.Ed. 153; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L.Ed.

145. As the Court explained in Johnson v. United States, 333 U.S. 10,

14, 68 S. Ct. 367, 369, 92 L.Ed. 436:

‘The right of officers to thrust themselves into a home is also a

grave concern, not only to the individual but to a society which

chooses to dwell in reasonable security and freedom from

surveillance. When the right of privacy must reasonably yield to

the right of search is, as a rule, to be decided by a judicial officer,

not by a policeman or government enforcement agent.’

Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523,

528-29, 87 S. Ct. 1727, 18 L.Ed.2d 930 (1967). Further, administrative searches

“authorized and conducted without a warrant procedure lack the traditional

safeguards which the Fourth Amendment guarantees to the individual[,]” and are

thus “significant intrusions upon the interests protected by the Fourth

Amendment[.]”

The Court qualified its decision, however, noting that:

Since our holding emphasizes the controlling standard of

reasonableness, nothing we say today is intended to foreclose prompt

inspections, even without a warrant, that the law has traditionally

upheld in emergency situations. See North American Cold Storage Co.

v. City of Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L.Ed. 195, 6 Ohio

L. Rep. 665 (seizure of unwholesome food); Jacobson v.

Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L.Ed.

643 (compulsory smallpox vaccination); Compagnie Francaise de

Navigation a Vapeur v. Louisiana State Board of Health, 186 U.S. 380,

22 S. Ct. 811, 46 L.Ed. 1209 (health quarantine); Kroplin v. Truax, 119

Ohio St. 610, 7 Ohio Law Abs. 110, 165 N.E. 498 (summary

destruction of tubercular cattle). On the other hand, in the case of most

routine area inspections, there is no compelling urgency to inspect at a

particular time or on a particular day. Moreover, most citizens allow

inspections of their property without a warrant. Thus, as a practical

matter and in light of the Fourth Amendment’s requirement that a

warrant specify the property to be searched, it seems likely that

warrants should normally be sought only after entry is refused unless

there has been a citizen complaint or there is other satisfactory reason

for securing immediate entry. Similarly, the requirement of a warrant

procedure does not suggest any change in what seems to be the

prevailing local policy, in most situations, of authorizing entry, but not

entry by force, to inspect.

Id. at 539-40.

Thus, as we explained with respect to this claim as it was pleaded in the

plaintiffs’ original complaint, there was an ambiguity as to the nature and extent of

Defendant Carmona’s alleged surveillance of the property, and thus, whether “the

government violate[d] a subjective expectation of privacy that society recognizes as

reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 150 L. Ed. 2d

94 (2001) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed.

2d 576 (1967) (Harlan, J., concurring)). In dismissing the plaintiffs’ claim without

prejudice to amending this claim against Carmona, we reasoned that:

For instance, if Defendant Carmona merely walked or drove down

William Street each day, or perhaps multiple times per day, while

intentionally and deliberately passing the plaintiffs’ property each time

she did so, we would have no grounds to find a constitutional violation

since society neither expects nor anticipates that the exterior of a

property is private. However, if Defendant Carmona set up cameras or

recording devices inside this property, then we would have the kind of

violation cognizable under the constitution.

(Doc. 19, at 40). Accordingly, we dismissed this claim but gave the plaintiffs an

opportunity to amend the complaint to state a claim against Defendant Carmona

regarding her surveillance of the property. (Id.)

However, after a review of the plaintiffs’ amended complaint, we find that the

plaintiff has not set forth sufficient allegations to remedy the deficiencies we

outlined in our prior Memorandum Opinion. In fact, the plaintiffs have not added

any well-pleaded facts regarding Carmona’s surveillance of the William Street

property. The amended complaint merely reiterates the same allegations: that

“INSPECTOR CARMONA constantly surveilled the WILLIAM STREET

PROPERTY and its tenants”; that “INSPECTOR CARMONA testified that she

continuously visited the WILLIAM STREET PROPERTY and saw individuals

coming out of the property consistently”; and that “INSPECTOR CARMONA

continuously monitored the WILLIAM STREET PROPERTY from the date of its

condemnation and up to the June 5, 2019 Magisterial District Court hearing.” (Doc.

22, ¶¶ 49, 51, 54). Thus, the plaintiffs have failed to shed any light on the nature and

extent of the alleged surveillance of the William Street property by Inspector

Carmona. Accordingly, we find that the amended complaint fails to state a claim for

an unlawful search under the Fourth Amendment as to Defendant Carmona and the

William Street property, and this claim will be dismissed.

As to the claim that Carmona’s knowledge of the tenants and dates of their

tenancies amounted to a de facto search in violation of the Fourth Amendment, the

amended complaint alleges that “INSPECTOR CARMONA knew the status of each

tenant and dates of tenancy for each tenant of the WILLIAM STREET

PROPERTY,” and that this knowledge constituted “a de facto search as it is not the

day-to-day job responsibilities of housing inspectors to examine tenancies and their

histories.” (Doc. 22, ¶¶ 52-53). Notably however, the amended complaint does not

allege that Carmona actually performed a search of Auric’s business records

concerning the William Street property and its tenants. The complaint merely asserts

that Carmona’s knowledge of these tenancies was an “intrusion into the business

activities of AURIC at the WILLIAM STREET PROPERTY.” (Id., ¶ 53).

Thus, in our view, with respect to the Fourth amendment claim against

Carmona the amended complaint does no more than set forth “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements.”

Iqbal, 556 U.S. at 678. This is simply not enough to survive a motion to dismiss.

Accordingly, we find that this claim fails as a matter of law and will be dismissed.

D. The Defendants’ Motion to Dismiss Count VII of the Plaintiffs’

Complaint for Malicious Prosecution is Granted With Respect to

the February 2019 Citation, but Denied as to the January 2019

Citation.

Finally, the defendants contend that the plaintiffs have not adequately pleaded

a claim against them for malicious prosecution under Pennsylvania law. The

plaintiffs contend that the defendants maliciously prosecuted them when they

condemned the William Street property and issued citations for prohibited

occupancy of that property. (Doc. 22, ¶ 235).

The plaintiffs assert their claim for malicious prosecution pursuant to

Pennsylvania law. As we have explained, in order to establish and ultimately prevail

on a claim for malicious prosecution in Pennsylvania, a plaintiff must show: “(1) the

defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the

plaintiff’s favor; (3) the proceeding was initiated without probable cause; and (4) the

defendants acted maliciously or for a purpose other than bringing the plaintiff to

justice.” Bristow v. Clevenger, 80 F.Supp.2d 421, 432 (M.D. Pa. 2000) (quoting

Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996)); Haefner v. Burkey, 626 A.2d

519, 521 (Pa. 1993).

At the outset, we note that to the extent the plaintiffs are bringing this claim

with respect to the condemnation of the William Street property, this claim fails as

a matter of law, as condemnation is a civil, rather than a criminal, proceeding.

Moreover, with respect to the citation issued in February of 2019, the plaintiffs

plainly cannot meet the second element of the cause of action—favorable

termination. Auric was adjudicated guilty of this citation in the Lackawanna Court

of Common Pleas on November 12, 2019. Commw. of Pa. v. Auric Investment

Holdings LLC, CP-35-SA-0000081-2019. Auric appealed, and on March 9, 2021,

the Superior Court upheld the guilty adjudication. Id. Accordingly, the plaintiffs

cannot meet the favorable termination element as it pertains to the February 2019

citation.

However, with respect to the January 2019 citation, Auric was adjudicated not

guilty on June 5, 2019. (Doc. 22-1, Ex. 11, at 92). Thus, the plaintiffs meet the

favorable termination element for a malicious prosecution claim based on this

citation. Moreover, while the defendants contend that there was probable cause to

issue the prohibited occupancy citation, and although in a malicious prosecution case

the question of probable cause is a question to be answered by the court, Bristow v.

Clevenger, 80 F.Supp.2d 421, 434 (M.D. Pa. 2000), where that question “depends

upon disputed issues of fact, the court should submit the factual disputes to the jury,

and then make the probable cause determination based upon the jury's findings.” Id.

(citations omitted). Here, the plaintiffs dispute that there was probable cause to issue

the prohibited occupancy citation because the appeal of the condemnation of the

William Street property stayed enforcement of the condemnation. (Doc. 22, ¶ 48).

Thus, they contend that there was no probable cause to issue the citation.

Accordingly, given that there is a factual dispute as to the issue of probable cause,

we cannot conclude at this stage as a matter of law that there was probable cause to

issue the citation. Thus, the plaintiffs’ malicious prosecution claim as to the January

2019 citation will survive the instant motion to dismiss.

III. Conclusion

Accordingly, for the foregoing reasons, the defendants’ partial motion to

dismiss (Doc. 25) will be GRANTED IN PART and DENIED IN PART. The motion

to dismiss will be GRANTED with respect to the following defendants and claims:

1. Count I is dismissed as to Defendants Uher and Oleski as to the William

Street property, Defendants Carmona and Oleski as to the Willow Street

property, and Defendant Courtright as to all properties;

2. Count V is dismissed as to the individual defendants;

3. Count VII is dismissed as to Defendant Courtright, and as to the claims

based on the condemnation of the William Street property and the February

2019 citation for Prohibited Occupancy; and

4. Count VIII is dismissed as to Defendant Courtright.

However, the motion will be DENIED as to the malicious prosecution claim in

Count VII based on the January 2019 Prohibited Occupancy citation.

An appropriate order follows.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge