DIETRICH v. MOUNT OLIVER BOROUGH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EDWARD DIETRICH, )

)

Plaintiff, )

)

v. ) 2:18-cv-01697-RJC

)

MOUNT OLIVER BOROUGH and )

SCHAAF EXCAVATING )

CONTRACTORS, INC. )

)

Defendants. )

OPINION

Robert J. Colville, United States District Judge.

Presently pending before the court is a Motion to Dismiss (ECF No. 22) filed by

Defendant Mount Oliver Borough (hereinafter “the Borough” or “Defendant”) in which the

Borough argues that the Complaint fails to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the reasons that follow the motion will be granted in part and denied in

part.

I. Procedural History and Factual Allegations

This action arises out of the demolition of Plaintiff Edward Dietrich’s house after he

failed to maintain his property while in prison. It was initiated with the filing of a Complaint

(“Compl.”) on December 21, 2018 (ECF No.1) and names two defendants, the Borough and

Schaaf Excavating Contractors, Inc. (“Schaaf”). Plaintiff was granted in forma pauperis status

and is represented by counsel. On September 4, 2019, the Borough filed the pending motion.

Schaaf failed to answer or otherwise respond to the complaint in a timely manner and on

September 27, 2019, the Clerk of Court entered default as to defendant Schaaf. (ECF No. 25).

Plaintiff failed to respond to the motion to dismiss, which necessitated the entry of an Order to

Show Cause. (ECF No. 26). On December 9, 2019, Plaintiff filed a Response to the Order to

Show Cause. (ECF No. 27). The court rejected Plaintiff’s argument that he should be excused

from responding to the merits of the motion. Leave to file a supplemental response was granted

and Plaintiff filed a second response on December 17, 2019. (ECF No. 29). The matter is now

ripe for consideration.

The allegations in the Complaint are as follows. Plaintiff purchased his property in the

Borough in 1994 and resided there for over a decade prior to his conviction in 2005. (Compl. ¶

8, 9). He was incarcerated from 2005 until June of 2017. (Compl. ¶ 9). The demolition, as

carried out by Schaaf, occurred in March of 2017, prior to Plaintiff’s release from prison.

(Compl. ¶ 22).

As part of Mr. Dietrich’s conviction, he was registered as a sex offender, limiting his

possible residences to the property he already owned, or a property within an area permissible by

law. (Compl. ¶10). While Mr. Dietrich was incarcerated, he fell behind on his property taxes and

was notified of that fact by the Borough via correspondence. (Compl. ¶ 11). Mr. Dietrich was in

regular communication with the Borough via letters sent to him at the prison from the time he

was notified of his tax debt up until his release. (Compl. ¶ 12). While in communication with the

Borough, he was assured that he could pay off his debts after he was released. (Compl. ¶ 13).

None of the letters sent to Mr. Dietrich at the prison made any mention of plans to either (a)

execute a tax lien on his property, (b) foreclose on his property, or (c) exercise eminent domain

to condemn his property and claim it for public use. (Compl. ¶ 14). Plaintiff further alleges the

Borough and Schaaf claimed that there was a hole in Mr. Dietrich’s roof, mold, cracks in the

foundation, and that a rear addition had collapsed; Plaintiff alleges that such observations could

only have been made after trespassing onto his property. (Compl. ¶ 15, 16).

No public notice was made regarding any condemnation or eminent domain proceedings

for the Plaintiff’s property. (Compl. ¶ 18). Plaintiff alleges that he had no opportunity to respond

to the Borough’s intent to have his property demolished. (Compl. ¶ 19). He further alleges the

Borough has since claimed that the demolition was an exercise of their “police power,” due to

the “deplorable” condition of the property and that many other properties in the area are

rundown, but no others have been demolished. (Compl. ¶ 20, 21). Plaintiff did not learn about

the demolition until after his release from prison. (Compl. ¶ 23). Plaintiff alleges that because he

can no longer live on the property, he has been denied Social Security benefits (“SSI”). (Compl.

¶ 25). The property is worth over $2,000 and he currently resides elsewhere, making it an

investment property. (Compl. 26). Plaintiff has received no compensation from the Borough for

the loss of his property, and such compensation was never offered at any point prior to

demolition. (Compl. ¶28).

The Complaint contains seven counts. Counts I and II of the Complaint allege deprivation

of constitutional rights under color of law pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff

alleges deprivation of property without due process under the Fifth (Count I) and Fourteenth

(Count II) Amendments to the United States Constitution. Plaintiff further alleges deprivation of

rights under Article I (Count III) and Article X (Count IV) of the Pennsylvania Constitution. In

Count V Plaintiff alleges an eminent domain claim pursuant to 26 Pa. C.S.A. §§ 302 and 305. In

Count VI plaintiff alleges trespass, in violation of 26 Pa. C.S.A. § 309 (b) and 18 Pa. C.S.A.

§3505. In Count VII plaintiff alleges loss of wages and income as a result of not being able to

receive his SSI benefits.

We have jurisdiction pursuant to 28 U.S.C. § 1331.

II. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In

deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail

on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-

pled factual allegations in the complaint and views them in a light most favorable to the plaintiff.

U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not

need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must

provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a

right to relief above the speculative level” and “sufficient to state a claim for relief that is

plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). The plausibility standard is not akin to a “probability requirement,” but it asks for more

than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts

that are “merely consistent with” a defendant’s liability, it “stops short of the line between

possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 556)

(internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing

the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr, Corp., 809 F.3d

780 (3d Cir. 2016). The court explained:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a

claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that,

“because they are no more than conclusions, are not entitled to the assumption of

truth.” Id. at 679. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d

Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the

assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen

there are well-pleaded factual allegations, [the] court should assume their veracity

and then determine whether they plausibly give rise to an entitlement to relief.”

Iqbal, 556 U.S. at 679.

809 F.3d at 876-77. “Determining whether a complaint states a plausible claim for relief

will ... be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).

Rule 15(a)(2) of the Federal Rules of Civil Procedure requires that leave to amend a

complaint or other pleading be “freely give[n] ... when justice so requires,” Fed. R. Civ. P.

15(a)(2). “[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a

curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cty. of

Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).

III. Discussion

Plaintiff has brought his federal claim pursuant to 42 U.S.C. § 1983 which provides:

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. As the Supreme Court concluded in Monell v. Dept. of Social Services, 436

U.S. 658, 690 (1978), municipalities are among those “persons” subject to suit via § 1983.

The first step for a Court to take in evaluating a claim brought under § 1983 is to

“identify the exact contours of the underlying right said to have been violated.” County of

Sacramento v. Lewis, 523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The

federal rights invoked by the Plaintiff are based on § 1 of the Fourteenth Amendment, which

provides:

. . . No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

U.S. CONST., AMEND. XIV, § 1. The Due Process Clause incorporates the Fifth Amendment's

Takings Clause, making it binding on the States. Palazzolo v. Rhode Island, 533 U.S. 606, 611,

121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Therefore, the Takings Clause claim brought by the

Plaintiff, like the claims based squarely on the Due Process clause, are grounded in the

Fourteenth Amendment.

A. Monell Liability

Defendant argues there can be no Monell liability without a custom or policy which

caused the alleged injury, and thus, plaintiff has failed to state a claim upon which relief can be

granted. A municipality is liable under § 1983 only “when execution of a government's policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.” Monell, 436 U.S. at 694. A policy may be said to

exist where “a deliberate choice to follow a course of action is made from among various

alternatives by the official or officials responsible for establishing final policy with respect to the

subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Similarly,

a custom or practice is present when “a given course of conduct, although not specifically

endorsed or authorized by law, is so well-settled and permanent as virtually to constitute

law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990). A plaintiff must establish a “direct

causal link between a municipal policy or custom and the alleged constitutional deprivation.”

City of Canton v. Harris, 489 U.S. 378, 385 (1989).

As stated supra, when considering a motion to dismiss, the court accepts as true all well-

pled factual allegations in the complaint and views them in a light most favorable to the plaintiff.

Here the plaintiff alleges that the Borough violated his constitutional rights “by moving forward

without providing notice and demolishing said property as an assertion of its ‘police powers’.”

(Complaint ¶ 2). Nowhere in the complaint is it alleged that the Borough was acting pursuant to

a policy, or a custom or practice. In its motion the Borough states:

10. Plaintiff fails to plead facts to permit a finding of liability against the

Borough for his § 1983 [sic] pursuant to the standard set forth in Monell v. Dep’t

of Social Services, 436 U.S. 658, 694 (1987); Plaintiff’s Complaint contains no

allegations concerning a specific Borough policy or custom, whose execution

caused his alleged injuries.

ECF No. 22 at ¶ 10. In his second Response to the Motion to Dismiss (ECF No. 29), plaintiff

admits1 as much:

10. Denied. The Borough did not follow any policy or custom. Instead, it decided

to demolish a house without notice to the owner. These actions cannot be allowed

to occur simply because there may not be a corresponding policy outlawing it.

Case law construing Monell makes it clear that a single act by an agency head can define agency

policy or custom and establish institutional civil rights liability. “[I]t is plain that municipal

liability may be imposed for a single decision by municipal policymakers under appropriate

circumstances.” Pembaur, 475 U.S. at 480. In this setting institutional liability attaches whenever

the decisionmaker possesses final authority to establish policy with respect to the action ordered.

Id. at 481. “Accordingly, proof that a[n agency's] authorized decisionmaker has intentionally

deprived a plaintiff of a federally protected right necessarily establishes that the [agency] acted

1 Plaintiff’s Response to the Motion to Dismiss [29] appears in the form of paragraph by paragraph admissions/

denials. This is in direct contravention of the Standing Order entered on December 26, 2018 (ECF No. 4) at ¶2: “A

brief shall also be filed with the response to each substantive motion.”

culpably. Similarly, the conclusion that the action taken or directed by the ... authorized

decisionmaker itself violates federal law will also determine that the [agency] action was the

moving force behind the injury of which the plaintiff complains.” Board of Cty. Comm'rs of

Bryan Cty., Okl. v. Brown, 520 U.S. 397, 405 (1997).

Here, the Complaint fails to allege with specificity facts to support an allegation that a

municipal policymaker or decisionmaker exposed the Borough to institutional civil rights

liability. Accordingly, the motion to dismiss will be granted in this regard and leave to amend

will be granted.

B. Counts I: Fifth Amendment

Count I alleges a claim of violations of the Takings Clause of the Fifth Amendment,

which provides: “... nor shall private property be taken for public use without just

compensation.” It applies to the states as well as the federal government. Chicago, B. & Q.R. Co.

v. Chicago, 166 U.S. 226, 239, 241, 17 S.Ct. 581, 41 L.Ed. 979 (1897); Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980).” Tahoe-

Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 307, n.1, 122 S. Ct.

1465, 1470, 152 L.Ed. 2d 517 (2002).

The defendant has moved to dismiss this claim, arguing Plaintiff is required as a matter of

law to exhaust his state court remedies seeking just compensation prior to bringing a Takings

Clause claim in federal court.2 This is no longer good law. The cases cited by Defendant in

support of this argument rely on Williamson County Regional Planning Commission v. Hamilton

Bank, 473 U.S. 172, 194-96 (1985), and Defendant is correct that for many years, federal courts

frequently rejected procedural due process claims made by plaintiffs alleging violations of the

2 Whether the conduct of Defendant constitutes a “taking of private property for public use” has not been argued

and we express no opinion in that regard at this juncture.

Takings Clause who have not fully availed themselves of their existing potential remedies under

state law. See, e.g., Giuliani v. Springfield Twp., 238 F. Supp. 3d 670, 692 (E.D. Pa. 2017), aff'd,

726 F. App'x 118 (3d Cir. 2018); Sixth Angel Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339,

358 (E.D. Pa. 2011), aff'd, 477 F. App'x 903 (3d Cir. 2012). Therefore, when the “Plaintiffs did

not avail themselves of the procedural protections available under Pennsylvania law, they cannot

sustain a federal procedural due process claim.” McLaughlin v. Forty Fort Borough, 64 F. Supp.

3d 631, 647 (M.D. Pa. 2014).

The United States Supreme Court has recently held that the plaintiff property owner had

an actionable Fifth Amendment claim under the Takings Clause when the government took his

property without paying for it, and could bring the claims in federal court under § 1983 at that

time. Knick v. Township of Scott, ––– U.S. ––––, 139 S.Ct. 2162, 204 L.Ed.2d 558 (2019). The

Court held that the property owner need not first seek just compensation under state law in state

court and wait until the state court has denied his claim for just compensation to seek relief in

federal court under § 1983. The Supreme Court held the state-litigation requirement to seeking

relief in federal court with respect to a § 1983 claim under the Takings Clause imposes an

“unjustifiable burden on takings plaintiffs [and] conflicts with the rest of our takings

jurisprudence, and must be overruled.” Knick, 139 S.Ct. at 2167. While this does not require that

the government furnish such just compensation as required by the Fifth Amendment in advance

of a taking, it does allow a property owner who has suffered such a taking without just

compensation to “bring his claim in federal court under § 1983 at that time.” Id. at 2168. This

means that “a property owner has a claim for a violation of the Takings Clause as soon as a

government takes his property for public use without paying for it.” Id. at 2170.

In light of this recent decision, the motion to dismiss the claim under the Takings Clause

at Count I is denied to the extent it relies on the state-litigation requirement.

Defendant further argues the Takings Clause claim should be dismissed because the

demolition of Plaintiff’s property was a valid exercise of its police power and therefore not

compensable. At this state of the litigation, however, we must accept the allegations in the

complaint as true. We recognize that “[a] municipality may, in the exercise of its police power,

without compensation destroy a building or structure that is a menace to the public safety or

welfare, or require the owner to demolish the dangerous piece of property.” In re 106 N. Walnut,

LLC, 447 F. App'x 305, 309 (3d Cir.2011). Second, “[a] property owner is only entitled to

recover, however, if the government action ‘deprived [him] of all or substantially all of the

beneficial use’ of the property.” Id. at 308.

Here, Plaintiff’s complaint alleges Defendant claimed to be exercising its “police

power,” putting the term in quotation marks. Even though the Complaint alleges he was later

told the condition of the destroyed house was a public safety concern, and Plaintiff

acknowledges that Defendant stated it was exercising its police power, Plaintiff does not admit to

these facts. Defendant’s defense may be revisited upon the completion of discovery. At this

juncture, however, without any record evidence, the motion to dismiss is denied to the extent it

relies on the defendant’s exercise of its lawful police powers.

C. Count II: Fourteenth Amendment

Count II alleges a claim for violations of the Fourteenth Amendment. Plaintiff appears to

state a due process claim for procedural due process violations, rather than substantive due

process; he alleges he had no opportunity to raise objections to the planned demolition.

Complaint ¶ 47. To state a § 1983 procedural due process claim, “a plaintiff must allege that (1)

he was deprived of an individual interest that is encompassed within the Fourteenth

Amendment’s protection of life, liberty, or property, and (2) the procedures available to him did

not provide due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir.

2006) (internal quotation marks omitted). Plaintiff must therefore allege “that state actors

deprived him of property to which he had a legitimate claim of entitlement without the process

he deserved.” Gale v. Storti, 608 F. Supp. 2d 629, 634 (E.D. Pa. 2009) (citing Abbott v. Latshaw,

164 F.3d 141, 146 (3d Cir. 1998)).

The Defendant’s arguments in support of dismissal of this claim overlaps with its

argument with respect to the now-overruled state litigation requirement and question of whether

Defendant was in fact exercising its police powers. At this juncture in the litigation, we will

deny the motion to dismiss as to Count II and permit further pursuit of the claim through

discovery.

D. Count III and IV: Articles I and X of the Pennsylvania Constitution

Defendant moves to dismiss Counts III and IV on the grounds that private causes of

action for damages due to alleged violations of the Pennsylvania Constitution do not exist. This

argument is well-founded. Federal courts in this Circuit have considered the issue and have

consistently held that no such private cause of action exists. Weber v. PNC Investments LLC,

2020 WL 563330 *14, C.A. 19-704 (W.D. Pa. February 5, 2020); Karash v. Machachek, 2016

WL 9777148, C.A. 1:15-cv-0028 (W.D. Pa. March 31, 2016) (citing Ryan v. General Machine

Products, 277 F.Supp.2d 585, 595 (E.D. Pa. 2003); Douris v. Schweiker, 229 F.Supp.2d 391, 405

(E.D. Pa. 2002); Lees v. West Greene School Dist., 632 F.Supp. 1327, 1335 (W.D. Pa. 1986).

Moreover, our Court of Appeals has held that plaintiffs cannot remedy state constitutional harms

using § 1983. Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 186 (3d Cir. 2009).

For this reason, the motion to dismiss is granted as to Counts III and IV and Counts III

and IV will be dismissed with prejudice, as any amendment thereto would be futile.

E. Count V: Eminent Domain

Defendant moves to dismiss Count V, which alleges it failed to file a declaration of

taking and failed to notify Plaintiff condemnee, in violation of the inverse condemnation

procedures in its Eminent Domain Code discussed supra. See 26 Pa. C.S.A. § 101 et seq. The

Pennsylvania Eminent Domain Code expressly states that it provides “a complete and exclusive

procedure and law to govern all condemnations of property for public purposes and the

assessment of damages.” 26 Pa. C.S.A. § 102(a). The provisions of Pennsylvania's Eminent

Domain Code provide that a condemnee is entitled to just compensation when his property has

been taken, injured, or destroyed. See 26 Pa. C.S.A. § 701. The Code also provides a procedure

by which a property owner may pursue relief for the taking of his property. See Pa. C.S.A. § 502.

Through this procedure, a landowner may request the appointment of viewers to declare that a

taking has occurred and to ascertain just compensation. See 26 Pa. C.S.A. § 502(c).

Here, Plaintiff does not allege he pursued his takings claim using the procedure provided

under Pennsylvania law. Nor does he allege that he was denied just compensation through that

procedure. Plaintiff admits he still holds title to the lot. (Compl. ¶ 26, 90). Defendant denies that

its conduct constituted an exercise of its eminent domain powers to affect a taking of Plaintiff’s

property. No record has been developed and supplemental briefing on this issue may be

necessary before the claim is dismissed. At this juncture in the litigation, and viewing the

factual allegations in the complaint in a light most favorable to Plaintiff, and in the absence of

any evidence of record to illuminate the procedural and substantive conduct through which the

Plaintiff’s house was razed, we will deny the motion to dismiss.

F. Count VI: Trespass PSTCA Immunity

Defendant further argues for dismissal of Count VI, which alleges trespass, on the

grounds it is exempt from criminal prosecution, as well as generally immune from intentional

tort claims under the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541, et seq. 3 In

response Plaintiff provides scant argument to the contrary, and states that “Plaintiff is not

seeking criminal prosecution4 of the Defendant Mt. Oliver for its trespass and unlawful entry.

He is merely seeking to prove that the Defendants acted unlawfully in furtherance of their

takings described above.” (ECF No. 29 at ¶ 21). We therefore construe the Plaintiff’s response

as a voluntary withdrawal of a separate cause of action for trespass, and will grant the motion to

dismiss with prejudice.

G. Count VII: Wage Loss Claim

Defendant’s motion further seeks dismissal of Count VII, entitled “Wage Loss Claim”

because this fails to state a claim upon which relief can be granted, there existing no such claim

under the law. (ECF No. 22 at ¶22). In his response, Plaintiff’s counsel has admitted this. (ECF

No. 29 at ¶22). Therefore, Count VII of the Complaint will be dismissed with prejudice.

H. Count VIII: Punitive Damages

Defendant has moved to dismiss Count VIII, which alleges a claim for punitive damages,

on the grounds that punitive damages are not available against municipal entities unless

expressly authorized by statute. Plaintiff objects to dismissal of such a request for relief because

he has sought punitive damages from non-movant defendant, Schaaf Excavating Contractors,

3 The statutory waiver of sovereign immunity contained in 42 Pa. Cons. Stat. § 8522(b) extends only to cases

involving the following nine categories: (1) vehicle liability; (2) medical-professional liability; (3) the care, custody,

or control of personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other

dangerous conditions; (6) the care, custody, or control of animals; (7) liquor store sales; (8) National Guard

activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. § 8522(b)(1)-(9).

4 This despite the fact that Plaintiff cites to the state criminal code in the Complaint at ¶¶ 79, 80, 85, and 87.

Inc., against whom default has been entered. Plaintiff has not opposed the motion to dismiss as to

Defendant Borough of Mt. Oliver, movant. Given this response, and also given the fact that it is

well-established that “a municipality is immune from punitive damages under 42 U.S.C. §

1983,” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the motion to dismiss is

granted with prejudice as to Count VIII as to defendant Mount Oliver Borough.

IV. Conclusion

For the reasons stated herein, the motion to dismiss is granted in part and denied in part.

Leave to amend will be granted and plaintiff may file an amended complaint if he wishes to

attempt to cure the pleading deficiencies identified herein.

An appropriate order follows.

Dated: February 27th, 2020

/s/ Robert J. Colville

Robert J. Colville

United States District Judge