# Mondesir v. Kingston Borough

> District Court, M.D. Pennsylvania · May 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10414831

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414831

## How later opinions describe it (automated extraction)

- discussing the right to hold specific private employment and to follow a chosen profession from unreasonable governmental interference

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PIERRE MONDESIR, VINCENT : No. 3:22cv1175
GUNTER, RICHARD :
MONDESIR, individually and : (Judge Munley)
trading as Mondesir Entertainment — :
Investment Group, LLC, :
Plaintiffs :

V. :
KINGSTON BOROUGH, CHIEF :
RICHARD J. KOTCHIK, OFFICER :
JOHN BELVILAGUA, OFFICER :
“DOE” 1-10, :
Defendants :

MEMORANDUM
This case involves allegations that the defendants used their official
authority to harass plaintiffs’ lawfully operating business in violation of the
plaintiffs’ civil rights. Before the court for disposition is the motion to dismiss
plaintiffs’ complaint filed by Defendants Kingston Borough, Police Chief Richard
J. Kotchik, and Police Officer John Belvilaqgua. The matter has been fully briefed
and is ripe for decision.

Background’
Plaintiffs, Pierre Mondesir, Vincent Gunter, and Richard Mondesir,
individually and trading as Mondesir Entertainment Investment Group, LLC,
opened a business at 385 Main Steet in the Borough of Kingston, Pennsylvania.
(Doc. 1, Compl. J 8). The business, known as “Leonardo’s”, consists of a bar,
liquor store, and small nightclub. (Id.) Leonardo’s is located near the boundary
between Kingston Borough and Edwardsville Borough. (Id. 17b).* Very close
to plaintiff's business, is a competing establishment named Swizzle Stick Bar,
located at 434 Main Street in Edwardsville. (id. {] 18b).
Plaintiffs purchased the property where the business is located on April 30,
2021. (Id. § 20). They spent nearly $100,000 in preparing to open the business,
which included soundproofing and other renovations. (Id. J] 26, 41). They
applied for a municipal occupancy permit, which Defendant Kingston Borough
approved following an inspection. {!d. J 26). In June of 2021, plaintiffs secured □
liquor license through Pennsylvania Liquor Control Board. (ld. J 23). Plaintiffs

' These brief background facts are derived from plaintiffs complaint. At this stage of
the proceedings, the court must accept all factual allegations in the complaint as true. Phillips
v. Cnty. of Allegheny, 515 F. 3d 224, 233 (3d Cir. 2008). The court makes no determination,
however, as to the ultimate veracity of these assertions.
2 The complaint contains two sets of paragraphs numbered 16 through 18. For clarity the cour
will refer to the first set as 16(a) through 18(a) and the second set as 16(b) through 18(b).

also received the necessary licenses to operate as a restaurant/bar with music
from a jukebox and dancing. (ld. {J 29).
In September 2021, Leonardo’s opened for business as a restaurant and
bar with a jukebox and expected normal hours of operation. (Id. 42). Plaintiffs’
establishment plays R&B, hip hop, and reggae music. (Id. 43). The targeted
demographic for clientele of the business is “upscale urban.” (Id.)
The business’s patrons are predominately African American. (Id. 4] 44). Plaintiff
Vincent Gunter is a United States citizen of Asian descent. (Id. {] 10). Plaintiff
Richard Mondesir is a United States citizen of Haitian descent. (Id. f] 11).
Plaintiff Pierre Mondesir applied to the Kingston Borough Zoning Officer on
October 18, 2021 to provide live entertainment, including live musical bands, disc
jockey competitions, and disc jockeys at Leonardo’s. (Id. fj 33). Evidently, the
zoning officials denied the request. Pierre Mondesir was not allowed to testify o1
present witnesses at the hearing regarding the request, although the owner of
Swizzle Stick Bar was allowed to testify. (id. J] 37-38). The written decision of
the Zoning Hearing Board was hand-delivered to Pierre Mondesir by the
Kingston Borough Police Department instead of being mailed. (Id. J 36).
At all times, plaintiffs operated Leonardo’s in a legal manner. (Id. J 47).
Members of the Kingston Police Department, however, have made efforts to
inhibit plaintiffs’ business operations. (Id. J 48). Plaintiffs allege that defendants

engaged in a purposeful campaign of opposition toward the business with a
specific goal of preventing its operation pursuant to plaintiffs’ planned objectives.
(Id. {] 46).
The Kingston Borough Police Department and other neighboring municipal
police departments undertook the following actions in an effort to prevent
plaintiffs from operating their business and to effectively shut down Leonardo’s:

a. Photographing the patrons of plaintiffs and their activities.

b. Directing negative comments to plaintiffs’ patrons and staff during
events. ]
c. Visiting the Plaintiffs with the PA State Police and other neighboring
police agencies on July 1, 2022 under the guise of a tip that the
plaintiffs were serving minors in their establishment. This was
incorrect and false, as the only patrons in_ plaintiffs[’]
establishment were over the age of 40.
d. Repeatedly positioning Kingston Police vehicles in close
proximity to the plaintiffs’ business with the sole intent of
discouraging patrons from patronizing the Plaintiff[s’]
business.

f. Police visits to the property, including the Pennsylvania Liquor
Control Board and [d]iscriminatory requests for restaurant
inspections.
(Id. □□ 50).
The Kingston Borough Police Department continually targeted plaintiffs’
establishment despite the absence of any nuisance violations or criminal
infractions. (Id. 52). Due to defendants’ actions, plaintiffs have struggled to

stay open for business. (ld. 55). The constant police presence and
harassment prevented plaintiffs from having a continuous flow of patrons. (Id.
54). Plaintiffs have sustained a substantial loss of business and have placed
Leonardo’s up for sale. (Id. Jf] 56, 58).
Based upon these facts, the plaintiffs filed the instant civil rights complaint
against Kingston Borough, its Police Chief Richard J. Kotchik, Police Officer Johr
Belvilaqua and ten (10) John Doe officers. (See generally Doc. 1, Compl.) The
complaint sets forth the following eight (8) claims for relief:
Count | — Deprivation of property interest (liquor license and occupancy
permit) without due process of law, pursuant to 42 U.S.C. § 1983 and the
Fourteenth Amendment to the United States Constitution.
Count II — Violation of the Equal Protection Clause of the United States
Constitution based on selective enforcement pursuant to 42 U.S.C. § 1983.
Count Ill — Municipal liability claim for Kingston Borough’s failure to
adequately train its officers under Monell v. Dep't of Soc. Sves. of City of New
York, 436 U.S. 658 (1978).
Count IV — State common law claim for tortious interference with business.
Count V — Substantive Due Process under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983.
Count VI — State law negligent infliction of emotional distress.

Count VII — State law intentional infliction of emotional distress.
Count Vill — Civil conspiracy under 42 U.S.C. § 1983.
Plaintiffs seek in excess of $150,000 in damages. (Doc. 1, foll. {] 104).
Plaintiffs filed their complaint on July 28, 2022. In response, on September
27, 2022, defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Doc. 12). The motion to dismiss has been
fully briefed, bringing the case to its present posture.°
Jurisdiction
As plaintiff brings several claims pursuant to 42 U.S.C. § 1983, the court
has federal question jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). The court has supplemental jurisdiction over the
plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
Legal Standard
Defendants filed their motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the
complaint’s allegations when considering a Rule 12(b)(6) motion. All well-
pleaded allegations of the complaint must be viewed as true and in the light most

□□□ Honorable Robert D. Mariani transferred this case to the undersigned on November 7,

favorable to the non-movant to determine whether, “‘under any reasonable
reading of the pleadings, the plaintiff may be entitled to relief.” Colburn v. Upper
Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by
Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must
describe “‘enough facts to raise a reasonable expectation that discovery will
reveal evidence of [each] necessary element” of the claims alleged in the
complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the
plaintiff must allege facts that “justify moving the case beyond the pleadings to
the next stage of litigation.” !d. at 234-35. In evaluating the sufficiency of a
complaint the court may also consider “matters of public record, orders, exhibits
attached to the complaint and items appearing in the record of the case.”
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994) (citations omitted). The court does not have to accept legal conclusions or
unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide “a short and plain
statement of the claim showing that the pleader is entitled to relief,” a standard
which “does not require detailed factual allegations,” but a plaintiff must make “a

showing, rather than a blanket assertion, of entitlement to relief that rises above
the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009)
(citations and internal quotations and quotation marks omitted). The “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Such “facial plausibility” exists “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “[T]he factual detail in a complaint [cannot be] so undeveloped that it
does not provide a defendant the type of notice of claim which is contemplated
by Rule 8.” Phillips, 515 F.3d at 232 (citation omitted). “Though a complaint
‘does not need detailed factual allegations, . . . a formulaic recitation of the
elements of a cause of action will not do.” DelRio-Mocci v. Connolly Props., Inc.
672 F.3d 241, 245 (3d Cir. 2012) (quoting Twombly, 550 U.S. at 555).
The Supreme Court has counseled that a court examining a motion to
dismiss should “begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at
679. Next, the court should make a context-specific inquiry into the “factual
allegations in [the] complaint to determine if they plausibly suggest an entitlemen
to relief.” Id. at 681.

Discussion
Defendants’ motion raises nine grounds for dismissal. The court will
address each in turn.
1. Monell Claims
Defendant Kingston Borough is a Pennsylvania municipality. A municipalit
may not be sued under 42 U.S.C. § 1983 (“section 1983”) for the constitutional
violations of its employees or agents. Monell, 436 U.S. at 691. Only when the
constitutional violation is caused by the execution of the municipality’s policy or
custom may the municipality be held liable. Id. at 694. Liability exists when
“ ‘there is a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation.’ ” Brown v. Muhlenberg Twp., 269 F.3d 205,
214 (3d Cir. 2001)(quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
The law provides that:
A government policy or custom can be established in two ways. Policy
is made when a ‘decision maker possess[ing] final authority to
establish a municipal policy with respect to the action’ issues an official
proclamation policy, or edict. A course of conduct is considered to be
a ‘custom’ when, though not authorized by law, ‘such practices of state
officials [are] so permanently and well-settled’ as to virtually constitute
law.
McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009) (quoting
Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990).
Defendants argue that the complaint, specifically Counts | and III-VIII lack

any factual allegations that could establish a municipal custom or policy to

support Monell liability. Thus, they argue that all claims against Kingston
Borough should be dismissed. Plaintiffs on the other hand argue that the
complaint does allege facts to support their theory that Kingston Borough has
permitted a custom of using police business, improper zoning administration, anc
enforcement intimidation in the absence of reasonable suspicion and probable
cause for their actions. After a careful review, the court agrees with the plaintiffs.
Plaintiffs allege that “[o]n information and belief, the Kingston Borough
Zoning officers and Police Department were instructed to take action that was
designed to prevent plaintiffs from operating their business and to effectively shu
Plaintiffs down.” (Doc. 1, 9 49). The complaint details many actions taken by the
defendants which may have been part of a policy, custom or practice, including:
photographing plaintiffs’ patrons; directing negative comments at plaintiffs’
patrons and staff: visiting plaintiffs’ establishment with the Pennsylvania State
Police and other neighboring police agencies to investigate whether Leonardo's

was serving minors; positioning Kingston Police vehicles in close proximity to
plaintiffs’ business to discourage patrons from patronizing it; additional police
visits to the property including with the Pennsylvania Liquor Control Board; and
discriminatory requests for restaurant inspections. (Doc. 1, ] 50). Further,
plaintiffs claim that despite the absence of any nuisance violations or criminal
infractions, Leonardo’s was continually targeted by the Kingston Borough Police

10

Department. (Id., 752). All this police presence and harassment interrupted the
flow of patrons to the business. (Id. J 54).
Similarly, the complaint alleges that Defendant Kingston and its Police
Department do not adequately train its officers “in the proper manner and □□□□□
to determine the existence of valid outstanding warrants.” (ld. { 84).
Additionally, the complaint alleges that “Defendant Borough of Kingston does not
train its police officers at all and instead simply utilizes the Chief of Police of the
Police Department without assuring that the Department uses its police powers
appropriately and constitutionally and provide[s] adequate training and oversight
to its police officers.” (Id. J 85).
Thus, plaintiff's complaint makes many factual allegations regarding the
actions of Kingston Borough employees and dismissal of Kingston Borough is no
appropriate. To the extent that no specific policy or custom is alleged in the
complaint, the court notes that discovery has yet to be completed in this case
and such discovery may be needed by the plaintiffs to identify with specificity the
relevant policy or custom that violated their rights.
2. Equal Protection/Selective Enforcement claim
Count II of the plaintiffs’ complaint asserts a cause of action for Equal
Protection under the Fourteenth Amendment based upon Selective Enforcement.
Specifically, the complaint alleges that the police, inter alia, “stop[ped] at

11

plaintiffs business establishment numerous times per weekend. Officers would
surround the premises with police vehicles, walk through the property and
interrogate patrons and staff.” (Doc. 1, | 77). Such acts by the police
department were done regularly and selectively without proper justification. (Id.)
Defendants move to dismiss Count II on the basis that the complaint
merely makes conclusory statements and recites the legal elements at issue,
without pleading facts that would establish an entitlement to relief on equal
protection and selective enforcement. The court disagrees.
To establish a selective enforcement claim, a plaintiff must demonstrate
“(1) that it was treated differently from another similarly situated facility, and (2)
that this selective treatment was based on an unjustifiable standard, such as

race, or religion, or some other arbitrary factor, or to prevent the exercise of a
fundamental right.” Jewish Home of Eastern PA v. Centers for Medicare and
Medicaid Svcs., 693 F.3d 359, 363 (3d Cir. 2012) (quotation marks and editing
marks omitted).
Here, as set forth above, plaintiffs, persons of color, owned a business
whose clientele were mainly African American. The defendants through actions
of the Police Department are alleged to have unjustifiably harassed the business.
These factual allegations are sufficient to defeat defendants’ motion to dismiss.
Accordingly, the motion to dismiss Count II will be denied.

12

3. Substantive Due Process claim
Count V of plaintiffs’ complaint alleges a substantive due process claim

pursuant to 42 U.S.C. § 1983. (Doc. 1, Jf] 89-92). This count alleges: “As a
direct and proximate result of defendants’ actions . . . plaintiffs’ substantive due

process rights, as protected by the Fourteenth Amendment to the United States
Constitution were violated[.]’ (Id. 90). Defendants move to dismiss Count V.
The Fourteenth Amendment to the United States Constitution provides that

no state shall “deprive any person of life, liberty, or property, without due process
of law.. ..” U.S. CONST. AMEND. XIV. The concept of due process includes both
procedural and substantive aspects. Planned Parenthood of S.E. Pennsylvania
v. Casey, 505 U.S. 833, 846-47 (1992) (“it is settled that the due process clause
of the Fourteenth Amendment applies to matters of substantive law as well as to
matters of procedure”) (quoting Whitney v. California, 274 U.S. 357, 373
(1927)\(Brandeis, J., concurring)) (overruled on other grounds by Dobbs v.
Jackson Women’s Health Org., 597 U.S. 215 (2022)).
Plaintiffs allege a substantive due process violation. Two aspects of
substantive due process exist. One applies to legislative acts and the other
protects against non-legislative state action. Nicholas v. Pennsylvania Sate
Univ., 227 F.3d 133, 139 (3d Cir. 2000). Here, the complaint alleges non-
legislative state action. In such cases, a property interest that falls within the

13

ambit of substantive due process must be alleged in the complaint. The state

may not take such an interest away for reasons that are arbitrary, irrational, or
tainted by improper motive. Id.
Not all property interests are protected by substantive due process. The
threshold for a substantive due process claim, therefore, is for the plaintiff to
allege a property interest which is protected by the due process clause of the
Fourteenth Amendment. Id. at 139-40. To determine whether a property interes
falls under the amendment’s protection, the Third Circuit Court of Appeals has
“adopted an approach to substantive due process that focuses on the nature of
the property interest at stake.” Id. at 140. The Third Circuit “has limited non-
legislative substantive due process review to cases involving real property
ownership.” Id.
Neither plaintiffs’ complaint nor their brief is specific regarding the property
right they seek to assert in the substantive due process count. It appears,
however, the plaintiffs complain of the inability to run their business without
improper harassment by the police and the denial of a live entertainment license.
The defendants’ actions resulted in, inter alia, wage loss and loss of opportunity.
(Doc. 1, 90). They do not allege that the interest involves real property
ownership. Thus, they have not alleged a proper due process property interest ir
the area of a non-legislative due process claim.

14

Moreover, the Third Circuit has dismissed similar claims of property
interests that relate to business or occupational rights. For example, the court
found no substantive due process right in the “ability to earn a living”; being
terminated from a public employment; “being actively prevented from winning city
contracts in violation of a consent decree with the city”; or “losing contracts
because a plaintiff was termed a ‘crook’ by government employees.” Newark
Cab Ass’n v. City of Newark, 901 F.3d 146, 155-56 (3d Cir. 2018) (internal
citations omitted). The Third Circuit also has found no property interest in a cab
company’s right to be the exclusive provider of ride-for-hire services in a city. Id.
at 155. Additionally, a license to operate a business is not a property interest
protected by the Constitution. Saucon Valley Manor, Inc. v. Miller, 392 F. Supp.
3d 554, 571 (E.D. Pa. 2019) (collecting cases).
Therefore, plaintiffs’ alleged property interest in its inability to properly run
its business appears not to be a protected property interest under the Fourteenth
Amendment, and the defendants’ motion to dismiss Count V, Substantive Due
Process will be granted.*

4 Plaintiffs have not briefed the issue of whether the property interest at issue is protected by
the substantive due process claim. Rather, their brief focuses on the second portion of the
substantive due process analysis, that is, whether the defendants’ actions were sufficiently
shocking to constitute a constitutional! violation. See Kinsella v. United States, 361 U.S. 234,
246 (1960). As the court has found no protected property interest, the second portion of the
due process analysis need not be addressed.
15

4. State Law Claims Immunity Counts IV, VI, and VIl
The following counts of plaintiffs’ complaint allege state law torts: Counts
IV, tortious interference with business; Count VI, negligent infliction of emotional
distress; and Count VII, intentional infliction of emotional distress. Defendant
Kingston Borough argues that it has immunity from liability for these claims
based upon the Pennsylvania Political Subdivision Tort Claims Act, (“PSTCA’),
42 Pa. CONS. STAT. ANN. § 8541, et seq. Plaintiffs contend that at this stage of the
litigation immunity should not be applied to shield the defendants. After a carefu
review, the court agrees with Defendant Kingston Borough.
Under the PSTCA, “no local agency shall be liable for any damages on
account of injury to a person or property caused by any act of the local agency o

an employee thereof or any other person.” 42 Pa. CONS. STAT. ANN. § 8541.
Several exceptions to municipal immunity exist. See 42 PA. CONS. STAT. ANN.
8542(b)(1)-(9). However, for an exception to immunity to exist, the complained c
injury must have been caused by the negligent act of the local agency or an
employee thereof. 42 PA. CONS. STAT. ANN. § 8542(a)(2). The definition of
“negligent acts” does “not include acts or conduct which constitutes a crime,
actual fraud , actual malice or willful misconduct.” Id. Thus, if willful misconduct
is claimed, i.e. an intentional tort, then the exceptions do not apply and immunity
shields the local agency from liability.

16

Tortious interference with business is an intentional tort, therefore,
immunity applies to Borough of Kingston on Count IV. The other two torts
alleged in the complaint, intentional infliction of emotional distress and negligent
infliction of emotional distress will be dismissed, as discussed more fully below.
Therefore, the court need not examine the law to determine if immunity applies tc

these torts.
Accordingly, Defendant Kingston Borough’s motion to dismiss Count IV
based upon the PSTCA will be granted and the Borough will be dismissed from
that claim.
5. Tortious Interference in Count IV
Count IV of plaintiffs’ complaint asserts a state law cause of action for
tortious interference with business relationships. (Doc. 1, Compl. {J 86-88).
Defendants argue that Count IV should be dismissed because plaintiffs have not
pleaded the necessary facts to support such a claim. The plaintiffs argue that the
motion to dismiss should be denied.
To properly state a cause of action for intentional interference with
prospective contractual relations, ° the plaintiffs’ complaint must allege: □□ □

5 Plaintiffs’ complaint labels Count IV as “State Common Law Claim for Tortious Interference
with Business”. It is not clear whether a separate cause of action for interference with
business exists under Pennsylvania law. The parties have analyzed this count with the law
relating to interference with contractual relationships, and the court has also.
17

prospective contractual relationship between plaintiff and a third party; 2) a

purpose or intention to harm plaintiff by preventing that relationship from
occurring; 3) the absence of privilege or justification with respect to defendants’
conduct; and 4) the occurrence of actual harm or damage to plaintiffs resulting
from defendants’ conduct. Orange Stones Co. v. City of Reading, 87 A.3d 1014,
1025 (Pa. Commw. Ct. 2014).
Defendants argue that plaintiffs have not pleaded any facts to establish
these necessary elements, including the existence of any actual or prospective
business relationships for which the defendants have, without justification
intentionally interfered. A liberal reading of the complaint, however, indicates tha
the actual or prospective business relationships that plaintiffs allege is their
relationships with customers. Due to the defendants’ actions, the plaintiffs have
not had a continuous flow of customers and have struggled to stay open for
business. (Doc. 1, J] 54-55). Thus, it appears that plaintiffs have sufficiently
pleaded Count IV so as to survive a motion to dismiss. Accordingly, the motion
to dismiss Count IV will be denied as to Defendants Kotchick, Belvilaqua and
Doe.®

6 As stated in the Section 4, however, Defendant Kingston Borough has immunity from liability
with regard to Count IV.
18

6. Negligent Infliction of Emotional Distress
Plaintiffs raise a negligent infliction of emotional distress claim in Count VI
of their complaint. Defendants seek dismissal of this count. The court agrees
the negligent infliction of emotional distress claim should be dismissed.
The law provides that: “To state a cause of action for negligent infliction of
emotional distress the plaintiff must demonstrate that she is a foreseeable
plaintiff and that she suffered a physical injury as a result of defendant's
negligence.” Armstrong v. Paoli Mem’!l Hosp., 633 A.2d 605, 609 (Pa. Super. Ct.
1993) (citing RESTATEMENT (SECOND) OF TORTS §§ 313, 436A). The physical □□□□□□
alleged by the plaintiff must be more than “[t]lemporary fright, nervous shock,
nausea, grief, rage, and humiliation if [they are] transitory.” Id. At the same time,
“long continued nausea or headaches, repeated hysterical attacks or mental
aberration are compensable injuries.” Id. Courts have found that “depression,
nightmares, nervousness, insomnia and hysteria are physical symptoms
warranting recovery.” Id. “Absent some physical injury or impact, Pennsylvania‘
governing law does not provide recovery for negligent infliction of emotional
distress.” Redland Soccer Club, Inc. v. Dept. of Army of U.S., 55 F.3d 827, 848
(3d Cir. 1995).

19

Here, plaintiffs’ complaint contains no allegations of a physical injury
caused by defendants’ actions. Moreover, “[t]he tort of negligent infliction of
emotional distress has evolved almost exclusively in the context of those who
observe injury to close family members and are as a consequence of the shock
emotionally distressed.” Armstrong, 633 A.2d at 609. This case involving
allegations of a municipality and its police force interfering with the operation of a
business is not the context in which negligent infliction of emotional distress
claims normally arise. Accordingly, dismissal of Count VI, Negligent Infliction of
Emotional Distress is appropriate.’
7. Intentional Infliction of Emotional Distress
Count VII of plaintiffs’ complaint alleges a state law intentional infliction of
emotional distress claim. (Doc. 1, Jf] 95-96). This count will also be dismissed.
To establish an IIED claim, the plaintiff must prove the following:
(1) conduct that is extreme and outrageous;
(2) such conduct must be intentional or reckless;
(3) the conduct must cause emotional distress; and
(4) that distress must be severe.
Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997).

’ Plaintiffs’ brief provides no meaningful analysis of this claim. It merely sets forth the standarc
for negligent infliction of emotional distress and states in a conclusory fashion, “The
Defendants[’] Motion to Dismiss must be denied.” (Doc. 18 at 25).
20

Defendants argue that the complaint’s allegations do not allege that
plaintiffs engaged in extreme and outrageous conduct, and therefore, this count
should be dismissed. The court agrees.
The law provides that recovery for intentional infliction of emotional distress
is reserved “for only the most clearly desperate and ultra extreme conduct{.]”
Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). “[I]t is for the court to determine
in the first instance whether the defendant's conduct may reasonably be
regarded as so extreme and outrageous to permit recovery.” Swisher v. Pitz, 86
A.2d 1228, 1231 (Pa. Super. Ct. 2005) (quoting Johnson v. Caparelli, 625 A.2d
668, 671 (Pa. Super. Ct. 1993)). Hoy summarized the case law in this area as
follows:
Cases which have found a sufficient basis for a cause of action of
intentional infliction of emotional distress have had presented only the
most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373,
263 A.2d 118 (1970)(defendant, after striking and killing plaintiffs son
with automobile, and after failing to notify authorities or seek medical
assistance, buried body in a field where discovered two months later
and returned to parents (recognizing but not adopting section 46 [of
the Restatement (Second) of Torts])); Banyas v. Lower Bucks Hospital,
293 Pa.Super. 122, 437 A.2d 1236 (1981)(defendants intentionally
fabricated records to suggest that plaintiff had killed a third party which
led to plaintiff being indicted for homicide); Chuy v. Philadelphia Eagles
Football Club, 595 F.2d 1265 (3d. Cir.1979)(defendant's team
physician released to press information that plaintiff was suffering from
fatal disease, when physician knew such information was false).
Id.

21

Plaintiffs’ complaint does not sufficiently plead allegations of “extreme and
outrageous’ actions by the defendants. Additionally, plaintiffs’ brief merely states
in a conclusory fashion, after setting forth the standard, “Thus, plaintiffs have
sustained their burden of designating specific facts which demonstrate that there
is a plausible claim with respect to their claim of intentional infliction of emotional
distress.” (Doc. 18, Pl. Br. at 24). Plaintiffs, however, did not designate any
facts. The facts generally pled in the complaint, harassment by the police and
failure to be granted a live entertainment license, may justifiably be upsetting if
established as true. These facts do not, however, rise to the level of
outrageousness as the examples discussed in Hoy above so as to support
plaintiff's cause of action. Accordingly, Count VII, Intentional Infliction of
Emotional Distress will be dismissed.
8. Civil Conspiracy
Count VIII of plaintiffs’ complaint alleges a civil conspiracy to deprive
plaintiffs of their constitutional rights under section 1983. Defendants move to
dismiss Count VIII. The motion will be denied.
The law provides that:
To prevail on a conspiracy claim under § 1983, a plaintiff must prove
that persons acting under color of state law “reached an
understanding” to deprive him of his constitutional rights. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 150-52, 90 S.Ct. 1598, 26 L.Ed.2d
142 (1970). Such rights include, of course, those protected by the
Due Process Clause of the Fourteenth Amendment.
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Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018). “After
plaintiff establishes that the object of the conspiracy was the deprivation of a
federally protected right, the rule is clear that the plaintiff must provide some
factual basis to support the existence of the elements of a conspiracy:
agreement and concerted action.” Id. at 295 (internal quotation marks and
citation omitted).
Defendants argue that plaintiffs’ complaint lacks facts to establish the
existence of a conspiracy to deprive plaintiffs’ rights or any agreement or
concerted effort by the defendants to further said conspiracy.
A careful review of the complaint, however, reveals sufficient allegations to
establish a civil rights conspiracy has been plead to defeat a motion to dismiss.
As set forth above, plaintiffs claim that the defendants violated their constitutiona
rights including their right to equal protection. The complaint further alleges that
the conspiracy: “was an express or implied agreement between the defendants
and others, whose exact identity is unknown to plaintiffs prior to discovery, to
deprive the plaintiffs of their constitutional rights[.].. The defendants were
voluntary participants in the common venture, understood the general objectives
of the plan and knew it involved the likelihood of the deprivation of the
constitutional rights, accepted those general objectives, and then agreed, either
explicitly or implicitly, to do their part to further those objectives. The defendants

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then did each act, or where there was a duty to act, refrained from acting, in a

manner intended to facilitate the deprivation of plaintiffs’ constitutional rights as
alleged.” (Doc. 1, Compl. If] 99-101).
At the motion to dismiss stage of the proceedings, before the parties have
engaged in discovery, the court finds that these allegations are sufficient to
support plaintiffs’ civil rights conspiracy claim. Accordingly, the defendants’
motion to dismiss the civil rights conspiracy claim found in Count VIII will be
denied.
9. Qualified Immunity for Individual Officers
In the final issue raised by the defendants, they argue that the individual
defendants, Police Chief Kotchik and Police Officer Bevilaqua, are entitled to
qualified immunity. The court finds, however, that qualified immunity is not
appropriate in the instant case.
Qualified immunity shields “government officials performing discretionary
functions ... from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 102 (1982). “In
considering whether qualified immunity attaches, courts perform a two-pronged
analysis to determine: (1) ‘whether the facts that the plaintiff has alleged make
out a violation of a constitutional right,’ and (2) ‘whether the right at issue was

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“clearly established” at the time of the defendant's alleged misconduct.’ ” Kedra v
Schroeter, 876 F.3d 424, 434 (3d Cir. 2017), cert. denied, 138 S. Ct. 1990 (2018
(quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). With respect to the
second, “clearly established” prong, the United States Court of Appeals for the
Third Circuit has explained:
[I]t need not be the case that the exact conduct has previously been
held unlawful so long as the “contours of the right” are sufficiently clear,
[Anderson v. Creighton, 483 U.S. 635, 640 (1987)], such that a
“general constitutional rule already identified in the decisional law”
applies with “obvious clarity,” [Hope v. Pelzer, 536 U.S. 730, 741
(2002). “If the unlawfulness of the defendant's conduct would have
been apparent to a reasonable official based on the current state of the
law, it is not necessary that there be binding precedent from this circuit
so advising.” Brown v. Muhlenberg Twp., 269 F.3d 205, 211 n.4 (3d
Cir. 2001). “[O}fficials can still be on notice that their conduct violates
established law even in novel factual circumstances,” because the
relevant question is whether the state of the law at the time of the
events gave the officer “fair warning.” Hope, 536 U.S. at 741...
Kedra, 876 F.3d at 450.
The defendant police officers argue that their alleged conduct did not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known. The court disagrees.
The complaint alleges that the police defendants used their authority to
prevent plaintiffs from operating their business and to effectively shut it down. It is
beyond question that a reasonable police officer would know that it would violate
plaintiffs’ rights to act in the manner alleged in the complaint. The law provides

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that the government may not arbitrarily interfere with the fundamental right “to
follow any lawful calling, business, or profession [a person] may choose[.]” Dent

v. State of W.Va., 129 U.S. 114, 121 (1889); Pieknick v. Commenweatlh of Pa.,
36 F.3d 1250, 1259-60 (3d Cir. 1994) (discussing the right to hold specific private
employment and to follow a chosen profession from unreasonable governmental
interference). Accordingly, qualified immunity does not apply, and the
defendants’ motion to dismiss will be denied on this point.
10. Motion for Voluntary Dismissal
One other motion remains on the docket for the court’s consideration. On
December 15, 2023, plaintiffs moved to voluntarily dismiss two of the named
plaintiffs, Vincent Gunther and Richard Mondesir pursuant to Federal Rule of
Civil Procedure 41(a)(2). (Doc. 29). Rule 41(a)(2) provides for dismissal by
court order “on terms that the court considers proper.” Plaintiff seeks dismissal
of these plaintiffs as they are mere investors in Mondesir Entertainment
Investment Group, LLC and have no role in the operation of the business. (Id. J
5).
The defendants indicated that they did not oppose the plaintiffs’ motion.
(Doc. 32, Defs.’ Br.). They requested, however, that Vincent Gunther and
Richard Mondesir be compelled to appear for deposition before being dismissed.
(Id. at 2). On March 22, 2024, the court issued an order directing these two

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plaintiffs to appear for a deposition within thirty (30) days. (Doc. 36). That thirty-
day deadline has expired and nothing on the record indicates that the plaintiffs
failed to appear for deposition. Therefore, the court will grant plaintiffs’ motion to
voluntarily dismiss Vincent Gunther and Richard Mondesir from this action.
Conclusion
For the reasons set forth above, the defendants’ motion to dismiss will be
granted in part and denied in part. The following will be dismissed from plaintiffs
complaint: Count V — Substantive Due Process; Count VI — Negligent Infliction o
Emotional Distress; Count VII- Intentional Infliction of Emotional Distress; and
Count IV — Interference with Business Relations as to Defendant Kingston
Borough only. The motion to dismiss will be denied in all other respects.
Additionally, plaintiffs’ motion to dismiss Plaintiffs Vincent Gunther and Richard
Mondesir from this action will be granted./An appropriate order follow

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414831. Public record. Not legal advice.