# JAGER v. DEPARTMENT OF ENVIRONMENTAL PROTECTION

> District Court, W.D. Pennsylvania · March 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10416525

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416525

## How later opinions describe it (automated extraction)

- explaining that to be similarly situated a comparator must be alike “in all relevant aspects” (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992))

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARGARET M. JAGER and ROBERT __) Case No. 3:20-cv-15
W. JAGER, )
Plaintiffs, )
) JUDGE KIM R. GIBSON
v. )
)
DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
DAWN HERB, MICHAEL TOMEI, )
AND ELLIOT HEGGENSTALLER, )
)
Defendants. )
MEMORANDUM OPINION
Before the Court is Defendants Pennsylvania Department of Environmental
Protection (the “DEP”), Dawn Herb, Michael Tomei, and Elliot Heggenstaller’s (collectively
the “individual defendants”) Motion to Dismiss Plaintiffs Margaret M. Jager and Robert W.
Jager’s (the “Jagers”) Amended Complaint. (ECF No. 29) The Amended Complaint
includes numerous claims against all the Defendants under federal and state law. The
claims against the individual defendants are in both their official and personal capacities.
The Defendants contend that, because the claims against the DEP were dismissed
without leave to amend, the Amended Complaint improperly included claims against the
DEP. The Defendants also contend that the claims against the individual defendants in
their official capacities and the state law claims against them in their personal capacities
should be dismissed because they are barred by sovereign immunity. Finally, the
Defendants contend that the federal claims against the individual defendants in their
personal capacities all fail to a state claim.

For the following reasons, the Court: (1) construes the inclusion of the DEP as a
defendant as a motion for reconsideration of the Court’s prior dismissal of the claims
against the DEP and denies the motion for reconsideration, and (2) GRANTS the Motion
to Dismiss the claims against Herb, Tomei, and Heggenstaller in both their official and
personal capacities.
I. Jurisdiction and Venue
This Court has subject-matter jurisdiction over the Jagers’ constitutional claims
because they arise under federal law. 28 U.S.C. §§ 1331, 1343(a)(3). This Court has subject-
matter jurisdiction over the Jagers’ remaining state law claims because they form part of
the same case or controversy as the constitutional claims. 28 U.S.C. § 1367.
Venue is proper in this district because it embraces Clearfield County, where this
action was originally filed. 28 U.S.C. § 1441.
II. Procedural Background
The Jagers initially filed this pro se lawsuit in the Court of Common Pleas of
Clearfield County on January 13, 2020. (ECF No. 1-2) The DEP timely removed the case to
this Court on January 29, 2020. (ECF No. 1) The only defendant at that time was the DEP.
(Id.) The DEP moved to dismiss the Complaint, arguing that sovereign immunity bars each
of the Jagers’ claims against the DEP. (ECF No. 5) The Court granted the Motion and
dismissed the claims against the DEP with prejudice. (ECF No. 18) However, the Court
permitted the Jagers to file an Amended Complaint against defendants not subject to
sovereign immunity. (Id. at 6)

The Jagers filed an Amended Complaint alleging numerous federal and state claims
against the DEP as well as several DEP employees—Dawn Herb, Michael Tomei, and Elliot
Heggenstaller—in both their official and personal capacities. (ECF No. 26) The Defendants
moved to dismiss the Amended Complaint arguing that the claims against the DEP had
already been dismissed without leave to amend, the claims against the individual
defendants in their official capacities are barred by sovereign immunity, none of the federal
claims against the individual defendants in their personal capacities state a claim, and all
of the state law claims against the individual defendants are barred by sovereign immunity.
(ECF Nos. 29, 30) The Jagers filed a response in opposition. (ECF No. 35) This motion is
ripe for disposition.
Ill. Factual Background!
This case arises from the Jagers’ purchase of a farm in Pennsylvania in 2012. (ECF
No. 1-2 □□ The Amended Complaint does not provide the location of the farm. Although
the Jagers planned to move to the farm, medical issues forced them to refrain from doing
so and they were unable to move in. (Id. | 4) When the Jagers purchased the farm, there

were large piles of manure all over the farm. (Jd. { 1) The Jagers rented out the farm to a

tenant who inflicted serious damage on the premises, and the prior owner failed to uphold
her promise to continue handling the manure in an appropriate manner. (Id. TY 4-5)

1 Unless otherwise noted, the Court draws the following facts, which it accepts as true for purposes
of deciding the motion, from the Jagers’ Amended Complaint (ECF No. 26) Because the Amended
Complaint omits some basic facts that were previously included in the Complaint which are helpful
for providing context and a coherent factual narrative, the Court also draws some facts from the
Complaint. (ECF No. 1-2)

In April 2015, the Defendants contacted the Jagers and instructed them that they
had to “remove the manure.” (ECF No. 26 at 10) The Defendants told the Jagers that

manure runoff from their property was going into the dry roadway ditches and polluting
the waters of the Commonwealth. (Id. at 8) The Defendants stated that the manure piles
had to be at least 100 feet from the diches. (Id. at 10) However, at that time, the manure
piles were over 200 feet away from the ditch and had never been within 100 feet of the
roadway ditches. (Id.)
Dawn Herb is an attorney for the DEP who previously worked at the Williamsport
office and is now working at the Harrisburg office. (Id. at 8) Michael Tomei was a manager
at the Williamsport DEP office. (Id.) Elliot Heggenstaller is a Water Quality Specialist at
the Williamsport DEP office. (Id.)
In their discussions with Robert Jager, Tomei and Heggenstaller “showed disdain
forhim.” (Id. at 10) Tomei and Heggenstallar were asked by the Jagers to show them where
polluted water was going into the roadside ditch and Tomei and Heggenstaller “agreed
that there was no polluted water going into the dry roadside ditch.” (Id. at 10) But on the
last day of Heggenstaller’s inspection of the property, Heggenstaller said that manure was
going down the driveway to the dry roadside ditch and was polluting the Commonwealth.
(Id. at 10) The report created after the inspection of the property also stated that water from
the manure piles was running into the roadside ditch. (Jd.) Margaret Jager took
photographs of the area around this time showing that no water was running down the
driveway or running into the ditch. (Id.)

The DEP eventually instituted some kind of legal proceeding with regard to the

manure. (Id. at 11) Instituting a legal proceeding contradicted a prior statement of Tomei
that the DEP would not be taking the Jagers court. (Id. at 10-11) Then, at some point, Tomei
told the Jagers that they would have an opportunity to have their day in court. (Id. at 11)
But the Jagers were not given notice of the date and time of their court hearing. (Id.) Tomei
told the Jagers that there were would not be a hearing but also told them that, if there were
to be a hearing, it would be on the 27th of the month. (Id.) On the 26th, the Jagers called
Patricia Havens, the DEP manager, to inquire into whether there would be a hearing the
next day. (Id.) Havens informed the Jagers that the hearing had already been conducted
earlier that same day. aa) At the hearing, Judge Ledbetter stated that the Jagers “’should
store the manure 100 feet from Commonwealth waters’ and provide a best Management
Plan to the DEP.” (Id.) The Jagers subsequently submitted a management plan to the DEP.
(Id.)
The Amended Complaint also references a second court hearing, referred to as a
“penalty hearing” before Judge Quigley, that the Jagers attended. (Id. at 11-12) The
Amended Complaint does not discuss what occurred at this hearing beyond that judge
stated that the Jagers “had several issues [they] could appeal” and that the judge told Herb
not to contact the bank. (Id.) There is also a passing reference in the Amended Complaint
to the Jagers believing that the DEP placed a lien on the property without their knowledge?
(Id. at 21)

2 No further information is provided about this lien in the Amended Complaint or about how it
relates (if at all) to the Jagers losing their farm.

The Jagers spent over $50,000 for supplies, equipment, and maintenance to move
the manure, and Robert Jager had to give up his business in order to “concentrate all his
time trying to get rid of the manure.” (Id. at 10, 13) The Jagers’ tenants also refused to pay
rent. (Id. at 13) As a result of these expenses, Robert Jager being forced to give up his
business, and tenants refusing to pay rent, the Jagers began having difficulty making their
mortgage payments. (Id.)
The Jagers had a mortgage on the property with “Indiana Bank.” (Id. at 8) The
Jagers fell behind on their mortgage payments and eventually owed the bank $31,000 to
“get up to date” on their mortgage. (Id. at 11) The Jagers had $10,000 in an IRA and $4,000
in cash that they intended to put toward the mortgage. (Id.) Margaret Jager had also
inherited property in New York and, although it had not yet gone through probate, she had
contracted with a neighbor in New York to sell the property for $31,000. (Id. at 11)
The Defendants conspired together to interfere with the Jagers’ mortgage contract
with the bank and colluded with the bank to take the Jagers’ property from them. (Id. at 8,
12) In particular, Herb contacted the bank and informed them that the Jagers were not in
compliance with DEP regulations. (Id. at 12) Without the Defendants’ interference, the
Jagers “would have been in a good position for the bank to make an agreement with [them]
and wait for probate on money that [they] were sure to receive.”? (Id. at 11)
The bank foreclosed on the property. (Id. at 20) In December of an unknown year,
it was subject to a sheriff's sale. Nobody bought the property at the sale, so the bank

3 As of the date of the filing of the Amended Complaint, the property in New York is “still tied up
in Long Island with the original trustee.” (ECF No. 26 at 11)

purchased it back for one dollar. (Id.) The bank informed the Jagers that they could
purchase it back from the bank for $150,000, but the bank later added that an additional
$50,000 would be required to cover taxes owed on the property. (Id. at 20) The Jagers lined-

up several investors to help them buy back the property. (Id.) However, when one of the
investors contacted the bank, the bank stated that the only way they could purchase the
property was if the Jagers, their tenants, and their animals were no longer on the property.
(id. at 20-21)
As a result of Defendants’ actions, the Jagers lost their farm and their home, and the
Defendants’ actions caused them to experience ill health, “general financial and personal
destruction,” and damage to their reputations. (Id. at 9)
IV. Legal Standard
The Court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6)
where the complaint fails “to state a claim upon which relief can be granted.” Connelly v.
Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). But detailed pleading is not generally
required. Id. The Federal Rules of Civil Procedure demand only “a short and plain
statement of the claim showing that the pleader is entitled to relief” to give the defendant
fair notice of what the claims are and the grounds upon which they rest. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
Under the pleading regime established by Twombly and Iqbal, a court reviewing the
sufficiency of a complaint must take three steps.* See Ashcroft v. Iqbal, 556 U.S. 662, 675

4 Although Iqbal described the process as a “two-pronged approach,” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009), the Supreme Court noted the elements of the pertinent claim before proceeding with that
approach, see id. at 675-79. Thus, the Third Circuit has described the process as a three-step

(2009). First, the court must “takfe] note of the elements [the] plaintiff must plead to state
aclaim.” Id. Second, the court 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 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. “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.” Id.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is
“a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
V. Discussion
a. Consideration of Pro Se Complaints
Where, as here, a complaint is filed pro se, the Court “must liberally construe [the]
pleadings” and “apply the applicable law, irrespective of whether a pro se litigant has
mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (citation omitted).
However, “if a pro se complaint is so confusing or unintelligible that no party could
possibly understand or reply to it” a court should dismiss the case pursuant to Rule 8(a).
In re Hudson, No. CIV.A. 05-1611, 2006 WL 2380784, at *1 (W.D. Pa. Aug. 16, 2006) (quoting

approach. See Connelly, 809 F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir.
2011) (citing Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)).

Cole v. Commonwealth Federal, No. CIV. A. 94-6099, 1994 WL 618464, *1 (E.D. Pa. Nov. 8,
1994)). Here, the Defendants express concerns that the Amended Complaint is so confusing
and unintelligible that it is impossible for them to decipher all of the claims that it may
contain or identify what the factual allegations are. (ECF No. 30 at 2) The Court has the

same issues when attempting to parse the Amended Complaint. By no means is the
Amended Complaint a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a). Nevertheless, the Defendants in their Motion attempt
to parse the Amended Complaint and address a myriad of possible claims in it. (ECF No.
30) The Court does the same and addresses the claims that it is able to identify in the
Amended Complaint.
The Jagers bring claims against the DEP and the individual named plaintiffs in their
official and personal capacities under 42 U.S.C. § 1983 for denial of their Fifth Amendment
right to due process, Fourteenth Amendment right to procedural and substantive due

process, and Fourteenth Amendment right to equal protection. (ECF No. 26) The Jagers
also bring numerous state law claims against the DEP and the individual named defendants
in their official and personal capacities for: collusion, tortious interference with a contract,
conspiracy, violating the Pennsylvania Right to Farm Act, violating the Pennsylvania Clean
Streams Law, violating their “grandfathered rights,” and intentional and negligent
infliction of emotional distress. (Id.)
b. Statute of Limitations
; The Defendants move to dismiss the Jagers’ claims under Rule 12(b)(6) because they
are barred by the statute of limitations. The length of the statute of limitations for a § 1983

claim is governed by the personal injury tort law of the state where the cause of action arose.
Wallace v. Kato, 549 U.S. 384, 387 (2007). The statute of limitations for a § 1983 claim arising
in Pennsylvania is two years. 42 Pa. Cons. Stat. § 5524(2); see also Kach v. Hose, 589 F.3d 626,
634-35 (3d Cir. 2009).
The running of the statute of limitations is an affirmative defense. See Fed. R. Civ.
P. 8(c)(1); Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). A complaint is subject to
dismissal for failure to state a claim on statute of limitations grounds only when the statute
of limitations defense is apparent on the face of the complaint. Schmidt v. Skolas, 770 F.3d
241, 249 (3d Cir. 2014). “If the bar is not apparent on the face of the complaint, then it may
not afford the basis for a dismissal of the complaint under Rule 12(b)(6).” Robinson v.
Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002) (quoting Bethel v. Jendoco Constr. Corp., 570 F.2d
1168, 1174 (3d Cir. 1978)). Where the bar is not apparent on the face of the complaint, a
statute of limitations defense is to be pleaded in the answer. See Robinson, 313 F.3d at 135.
Here, the statute of limitations defense is not apparent on the face of the complaint.
Although, it appears likely that some of events in the complaint occurred outside the statute
of limitations, it is not apparent on the face of the complaint. The Amended Complaint is

sparse on the dates of events and, where a date is given, the year is frequently omitted.
Indeed, the only year for a specific event listed in the complaint is that “Defendants told
Plaintiffs in April 2015 to remove the manure.” (ECF No. 26 at 10) This appears to be the
beginning of the Jagers’ interactions with the Defendants. The Complaint was filed on
January 13, 2020, and the Amended Complaint was filed on June 22, 2020. (ECF Nos. 1-2,
26) Thus, assuming that all of the factual allegations in the Amended Complaint occurred.

10

prior to the date the Complaint was filed, all that is apparent on the face of the Amended
Complaint is that the events in question occurred sometime between April 2015 and
January 2020. Accordingly, the statute of limitations defense is not apparent on the face of
the complaint and the motion to dismiss for failure to state a claim under Rule 12(b)(6) for
the claims being barred by the statute of limitations is denied.

c. Claims Against the Department of Environmental Policy
In a previous order, the Court dismissed the Jagers’ claims against the DEP with
prejudice, but allowed the Jagers to file an Amended Complaint against possible other
defendants not subject to sovereign immunity. (ECF No. 18) The Jagers’ Amended
Complaint, however, includes the DEP as a defendant and asserts claims against DEP. (ECF
No. 26) Because the Jagers’ claims against DEP were dismissed with prejudice, the Jagers
improperly included claims against the DEP in their Amended Complaint.
However, the Amended Complaint is also styled as a motion for leave to amend the
complaint and asserts that two exceptions to sovereign immunity apply in this case. (ECF
No. 26 at 2) Liberally construed, the Jagers’ inclusion of the DEP in their complaint despite
the claims against the DEP having been previously dismissed with prejudice, and their
assertion that two exceptions to sovereign immunity apply, could be considered a motion
for reconsideration. See Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 251
(3d Cir. 2010).
“A motion for reconsideration is a limited vehicle used ‘to correct manifest errors of
law or fact or to present newly discovered evidence.” Jackson v. City of Philadelphia, 535 F.
App’x 64, 69 (3d Cir. 2013) (quoting Max’s Seafood Café ex rel. Lou—Ann, Inc. v. Quinteros, 176

11

F.3d 669, 677 (3d Cir.1999)). “Accordingly, a judgment may be altered or amended if the
party seeking reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court granted the motion . . . ; or (3) the need to correct a clear error of
law or fact or to prevent manifest injustice.” U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P.,
769 F.3d 837, 848-49 (3d Cir. 2014) (quoting Max’s Seafood Café, 176 F.3d at 677) (internal
quotation marks omitted).
“Motions for reconsideration are not designed to provide litigants with a ‘second
bite at the apple.” Cole’s Wexford Hotel, Inc. v. UPMC & Highmark Inc., No. CV 10-1609, 2017
WL 432947, at *2 (W.D. Pa. Feb. 1, 2017) (quoting Bhatnagar v. Surrendra Overseas Ltd., 52
F.3d 1220, 1231 (3d Cir. 1995)). “A motion for reconsideration is not to be used to relitigate,
or ‘rehash,’ issues the court already decided, or to ask a district court to rethink a decision
it, rightly or wrongly, already made.” Cole’s Wexford Hotel, 2017 WL 432947, at *2 (citing
Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998)). “By reason of the
interest in finality, at least at the district court level, motions for reconsideration should be
sparingly granted.” Cole’s Wexford Hotel, 2017 WL 432947, at *1.
The Jagers contend that sovereign immunity does not apply to their claims against
the DEP because two exceptions to sovereign immunity are applicable: the “care custody,
or control of personal property in the possession or control of Commonwealth parties”
exception and the “dangerous condition of Commonwealth agency real estate and
sidewalks” exception. 42 Pa. Cons. Stat. § 8522(b)(3)-(4). The Jagers’ only argument for
why these exceptions to sovereign immunity apply is because “the manure runoff is going
12

into [the Commonwealth’s] dry roadway ditches.” (ECF No. 26 at 2) In dismissing the
Complaint, the Court previously considered the exceptions to sovereign immunity and
found that none applied. (ECF No. 18 at 5) The first two grounds for reconsideration are

not applicable, but the Jagers’ argument could be construed to fall into the third ground for

a motion for reconsideration—“the need to correct a clear error of law or fact to prevent
manifest injustice.” Max’s Seafood Café, 176 F.3d at 677 (citation omitted).
The DEP can claim Eleventh Amendment sovereign immunity because it is an

agency of the Commonwealth of Pennsylvania. See Frompovicz v. Pa. Dep’t of Env’t Prot.,
No. 5:17-CV-2790, 2018 WL 1444168, at *2 (E.D. Pa. Mar. 22, 2018); Pioneer Aggregates, Inc. v.
Pa. Dep't of Env't Prot., No. 3:11-CV-00325, 2012 WL 4364073, at *4-5 (M.D. Pa. Sept. 21,
2012). Sovereign immunity applies to intentional tort claims and negligence claims brought
against the Commonwealth, unless the Commonwealth has expressly waived its immunity.
Ioven v. Nestel, 150 A.3d 571, 573 (Pa. Commw. Ct. 2016); see 1 Pa. Cons. Stat. § 2310.
Sovereign immunity is only waived for claims “arising out of a negligent act.” 42 Pa. Cons.
Stat. § 8522(a). The Commonwealth has waived sovereign immunity for negligent acts
committed by the Commonwealth or its agents involving: (1) vehicle liability; (2) medical
professional liability; (3) Commonwealth custody or care of personal property;
(4) Commonwealth real property; (5) potholes and other dangerous conditions; (6) custody
or care of animals; (7) liquor sales; (8) activities of the Pennsylvania National Guard;
(9) toxins or vaccines; and (10) sexual abuse. 42 Pa. Cons. Stat. § 8522(b). The exceptions to
sovereign immunity are to be narrowly construed. Dean v. Commonwealth Dep’t of Transp.,
751 A.2d 1130, 1134 (Pa. 2000).
13

The “Commonwealth real estate, highways and sidewalks” exception waives
sovereign immunity for acts by a Commonwealth party for damages caused by:
A dangerous condition of Commonwealth agency real estate and sidewalks,
including Commonwealth-owned real property, leaseholds in the
possession of a Commonwealth agency and Commonwealth-owned real
property leased by a Commonwealth agency to private persons, and
highways under the jurisdiction of a Commonwealth agency, except
conditions described in paragraph (5).
42 Pa. Cons. Stat. § 8522(b)(4). The real estate exception only applies to injuries “caused by
a substance or an object on Commonwealth real estate” and must allege that a dangerous
condition “deprived, originated, or had as its source the Commonwealth realty.” Jones v.
Se. Pa. Transp. Auth., 772 A.2d 435, 443 (Pa. 2001) (quoting Snyder v. Harmon, 562 A.2d 307,
311 (Pa. 1989)) (cleaned up).
The Jagers contend that this exception applies because “[t]he Defendants have
stated that manure runoff is going into their dry roadway ditches” and the ditch is “[p]art
of the Commonwealth. (ECF No. 26 at 2, 9) They do not allege that any real estate had a
dangerous condition or that any of their injuries were “caused by a substance or object on
Commonwealth real estate.” Id. Accordingly, the real estate exception to sovereign
immunity is inapplicable.
The second exception that the Jagers raise is § 8522(b)(3), which is titled “[c]are,
custody or control of personal property,” and waives sovereign immunity for acts by a
Commonwealth party for damages caused by:
The care, custody or control of personal property in the possession or control
of Commonwealth parties, including Commonwealth-owned personal
property and property of persons held by a Commonwealth agency, except
that the sovereign immunity of the Commonwealth is retained as a bar to

4

actions on claims arising out of Commonwealth agency activities involving
the use of nuclear and other radioactive equipment, devices and materials.
42 Pa. CS. § 8522(b)(3). It is well established that this exception applies only where “the
property itself causes the injury.” Pyeritz v. Com., 613 Pa. 80, 94, 32 A.3d 687, 696 (Pa. 2011)
(Eakin, J., concurring); see Pa. State Police v. Klimek, 839 A.2d 1173, 1175 (Pa. Commw. Ct.
2003). The Jagers do not explain why they believe this exception applies. Because the
Amended Complaint does not allege that any property in the care, custody or control of
Commonwealth parties caused the Jagers an injury, this exception is inapplicable.
Therefore, construed as a motion for reconsideration of the Court’s prior sovereign
immunity ruling, the motion is denied. The DEP has not waived sovereign immunity.
Accordingly, the claims against the DEP continue to be dismissed with prejudice.
d. Claims Against Individual Defendants in their Official Capacities
In their Amended Complaint, the Jagers add claims against Herb, Tomei, and
Heggenstaller in both their official and personal capacities. (ECF No 26 at 1, 7 (stating that
“we're suing the added state Defendants in their individual capacity for damages, not
merely in their capacity as state officials”)) The Defendants move to dismiss the claims
against Herb, Tomei, and Heggenstaller in their official capacities because the claims are
barred by sovereign immunity and sovereign immunity has not been waived. (ECF No. 30

at 11)
“[A] suit against a state official in his or her official capacity is not a suit against the
official but rather a suit against the official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989). “As such, it is no different from a suit against the State itself.” Id.

15

Pennsylvania has not waived sovereign immunity for suits against individuals in their
official capacities. See 1 Pa Cons. Stat. § 2310 (stating that the Commonwealth “and its
officials and employees acting within the scope of their duties... enjoy sovereign immunity
and official immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity”); La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw.
Ct. 1992) (“[W]hen an employee of a Commonwealth agency was acting within the scope
of his or her duties, the Commonwealth employee is protected by sovereign immunity from
the imposition of liability for intentional tort claims.”). As discussed in the previous section
and in the Court’s Memorandum Order dismissing the Complaint (ECF No. 6), none of the
exceptions to sovereign immunity apply here. Accordingly, sovereign immunity bars the
Jagers’ claims against the individual defendants in their official capacities and these claims

are dismissed.

e. Claims Against Individual Defendants in their Personal Capacities
The claims against the individual defendants fall into two categories: federal claims
under 42 U.S.C. § 1983 and claims under state law.
1. Federal Claims Under § 1983
In its relevant part, 42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured.

16

Section 1983 does not create any substantive rights, but instead provides a remedy for
violations of a federal constitutional or statutory right. Baker v. McCollan, 443 U.S. 137, 144
n.3 (1979). To state a valid § 1983 claim, a plaintiff “nust demonstrate a violation of a right
protected by the Constitution or laws of the United States that was committed by a person
acting under the color of state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). If a
§ 1983 claim is based on a Due Process violation—either substantive or procedural—the
plaintiff must allege the deprivation of a constitutionally protected interest. See O'Donnell

v. Simon, 362 F. App’x 300, 303 n.3 (3d Cir. 2010) (citing Piecknick v. Pennsylvania, 36 F.3d
1250, 1256 (3d Cir. 1994)).
In a § 1983 action, “a plaintiff must show that each and every defendant was
‘personal[ly] involve[d]’ in depriving him of his rights.” Kirk v. Roan, No. 1:04-cv-1990, 2006
WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d
Cir.2006)). “Individual liability can be imposed under § 1983 only if the defendant played
an ‘affirmative part’ in the alleged misconduct.” Alexander v. Fritch, 396 F. App’x 867, 874—
75 (3d Cir. 2010) (per curiam). “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). Allegations of personal involvement must be made with
“appropriate particularity.” Id. Thus, a plaintiff seeking relief under § 1983 must plausibly
allege “with appropriate particularity” that each defendant was personally involved in the
purportedly wrongful conduct Scheing v. Fountain, 729 F. App’x 175, 178 (3d Cir. 2018).
The Amended Complaint alleges violations of the Jagers’: (1) Fifth Amendment
right to due process; (2) Fourteenth Amendment right to due process (procedural and

17

substantive); and (3) Fourteenth Amendment right to equal protection. (ECF No. 26 at 15-
16, 18-19)
The Defendants contend that the Amended Complaint does not make sufficient
factual allegations to support the contention that the individual defendants were personally
involved in the conduct underlying the Jagers’ § 1983 claims and, even if it does, the
Amended Complaint nonetheless fails to state a claim under § 1983.
The Amended Complaint fails to allege with particularity that any individual
defendant was personally involved in the purportedly wrongful conduct. There are few
specific factual allegations in the Amended Complaint. Of the factual allegations in the
Amended Complaint, most fail to identify a specific individual or individuals were
involved in a particular act. For example, the Amended Complaint states generally that
“Defendants accused the Plaintiffs of polluting the Commonwealth waters by allowing the

manure to go down the driveway and into the dry roadside ditch” which was a lie (ECF
No. 26 at 9), and “Defendants told Plaintiffs in April 2015 to remove the manure.” (Id. at
10) Allegations like these in the Amended Complaint fail to adequately allege that Herb,
Tomei, or Heggenstaller were personally involved in any alleged violations of the Jagers’
constitutional rights. Further, the allegations are so devoid of particularity and “factual
enhancement” that they do not permit the Court to infer that any of these defendants
personally participated in depriving the Jagers of any of their constitutional rights. Scheing,
729 F. App’x at 179 (quoting Iqbal, 556 U.S. at 678).
There are only a few instances where the Amended Complaint alleges that a
particular defendant took an action. The instances the Court identifies are: (1) Tomei and

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Heggenstaller “showed disdain for [Robert Jager] because he followed them around and
asked them to show [him] ... where polluted water was going into the dry roadside ditch”
(ECF No. 26 at 10); (2) Tomei told the Jagers that they would not be taken to Court which
“Tulled [them] into a false sense of security” (Id. at 10-11); (3) Tomei told the Jagers that
“there would not be a hearing but if something changed it might be on the 27th” (Id. at 11);
and (4) Herb said she was going to contact the Jagers’ bank to tell them that they were not
in compliance with the DEP’s regulations and subsequently contacted the bank and told it
the Jagers were not in compliance. (Id. at 12)
(a) Fifth Amendment Due Process
The Fifth Amendment's guarantees of due process apply only to the federal
government, not to actions of the states, including the Commonwealth of Pennsylvania.
Citizens for Health v. Leavitt, 428 F.3d 167, 1788 n.11 (3d Cir. 2005). As the individual
defendants are state employees being sued in their personal capacities for actions done in
their capacities as state employees, the Fifth Amendment does not apply to their actions.
See Dinicola v. DiPaolo, 945 F. Supp. 848, 864 n.9 (W.D. Pa. 1996). Accordingly, the Jagers’
Fifth Amendment claims fail.
(b) Fourteenth Amendment: Procedural Due Process
A plaintiff who brings a § 1983 suit alleging a violation of procedural due process
must allege and prove that: (1) he or she was deprived of a protected liberty or property
interest; (2) this deprivation was without due process; (3) the defendant subjected the
plaintiff, or caused the plaintiff to be subjected to, this deprivation without due process;
(4) the defendant was acting under color of state law; and (5) the plaintiff suffered injury
19

as a result of the deprivation without due process. Sample v. Diecks, 885 F.2d 1099, 1113-14
(3d Cir. 1989).
Although the Amended Complaint alleges that the Jagers’ procedural due process
rights were violated, it fails to allege facts that could plausibly support a claim that their
rights were violated. The Amended Complaint alleges that the Jagers were deprived of
their farm. It references a hearing before Judge Ledbetter and a penalty hearing before
Judge Quigley but gives no indication of anything that could be considered a deprivation
of property having occurred at either hearing. (ECF No. 26 at 11)
Instead, the Amended Complaint is clear that it was the bank foreclosing on the
farm because the Jagers were $31,000 behind in mortgage payments, not the defendants,
that deprived the Jagers of their property. The only action by one of the defendants alleged
in the Amended Complaint related to the foreclosure by the bank is Tomei informing the
bank that the farm was not in compliance with DEP regulations. (ECF No. 26 at 12) The
Amended Complaint concludes that this statement by Tomei caused the bank to foreclose
because, after the statement was made, the bank was not willing to negotiate with the Jagers
regarding the back payments they owed. (Id. at 11 (“If the DEP had not interfered with our
contract with the bank we would have been in a good position for the bank to make an
agreement with us or wait for probate on the money that they were sure to receive.”); 12;
14 (stating, “if the Defendants did not interfere in our dealings with the bank we would still

5 There is a passing reference to a belief that the DEP placed a lien on the property without their
knowledge. (Id. at 21) The Amended Complaint does not link a lien on the property to the
foreclosure, nor does it allege any action by any of the individual defendants related to the
imposition of a lien on the property.
20

have our property and we would be looking at ways to reorganize our debts”)) The causal
link between Tomei telling the bank about the farm not being in compliance and the
foreclosure is so vague, attenuated, and implausible that it fails to state a claim. Not only
is it implausible that Tomei’s statement caused the bank to foreclose on the farm, it was the
bank’s independent decision to foreclose on the property that resulted in them losing the
farm.®
The Amended Complaint also appears to allege a procedural due process violation
from not being notified of the hearing before Judge Ledbetter on the 26th. (Id. at 11) The
only identifiable action by one of the individual defendants is Tomei stating that that a
hearing would likely not be held but telling the Jagers that “if something changed [the
hearing] might be on the 27th.” (ECF No. 26 at 11) This fails to allege a procedural due

process violation. The Amended Complaint does not allege that they were deprived of a
protected property interest at this hearing or that they suffered any injury as a result of this
hearing. The Jagers allege that, at the hearing, the judge only stated that they should “store
the manure 100 feet from the Commonwealth waters’ and provide a best Management Plan
to the DEP.” (ECF No. 26 at 11) The Jagers state that they subsequently provided the DEP
with a best management plan and that they were “always over 100 ft away from the
ditch . . . thereby adhering to the DEP’s standard rules.” (Id.) Thus, the Jagers do not allege
that anything substantive occurred at this hearing. Further, attendance at a hearing is not

6 That the Jagers may have reached an agreement with the bank to avoid foreclosure is speculative
at best and, even if an agreement was reached, the money from the sale of the property Margaret
Jager inherited that they intended to sell and use the proceeds from to get up to date with the
mortgage never occurred and the property is still “tied up ... with the original trustee.” (Id. at 11)
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itself a liberty or property interest and not attending the hearing itself does not constitute
and injury.
(c) Fourteenth Amendment: Substantive Due Process
A violation of substantive due process occurs if a government official “engages in
‘an abuse of executive power so clearly unjustified by any legitimate objective of law
enforcement’ that it is barred by the Fourteenth Amendment.” Button v. Snelson, 679 F.
App’x 150, 153 (3d Cir. 2017) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)).
To establish a substantive due process claim under § 1983, a plaintiff must show that the
defendants (1) deprived the plaintiff of a substantive due process right (2) while acting
under color of law. Id. Under the first prong, the plaintiff must show that the “particular
interest at issue is protected by the substantive due process clause and the government's
deprivation of that protected interest shocks the conscience.” Chainey v. Street, 523 F.3d 200,
219 (3d Cir. 2008). “[OJnly the most egregious official conduct” meets the “shocks the
conscience standard.” United Artists Theatre Cir., Inc. v. Twp. of Warrington, PA, 316 F.3d
392, 400 (3d Cir. 2003) (quoting Lewis, 523 U.S. at 846).
The Amended Complaint does not allege that any of the individual defendants
deprived the Jagers of a protected interest and none of the defendants’ actions could
plausibly be construed as sufficiently conscience-shocking to support a substantive due

process claim. See Pahler v. City of Wilkes-Barre, 31 F. App’x 69, 72 (3d Cir. 2002); R.B. v.
Westmoreland Cnty., 526 F. App’x 181, 186 (3d Cir. 2013). Accordingly, the Amended
Complaint fails to allege a Fourteenth Amendment substantive due process claim.

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(d) Fourteenth Amendment: Equal Protection
The Jagers allege a violation of the Equal Protection Clause because the DEP went
after them for violating environmental regulations for having a pile of horse manure less
than 100 feet from a roadside ditch, whereas the DEP did not go after a neighbor whose
cattle occasionally stand and defecate in a river. (ECF No. 26 at 18-19)
To state a § 1983 equal protection claim a plaintiff must allege that: (1) he or she is

a member of a protected class and (2) he or she received different treatment than that
received by other similarly situated individuals. Keenan v. City of Philadelphia, 983 F.2d 459,
465 (3d Cir.1992). The Jagers do not adequately allege either element. There is nothing in
the Amended Complaint to suggest that the Jagers are members of a protected class. Nor

are the Jagers similarly situated to the owners of the herd of cattle—the environmental
impacts caused by runoff from non-moving large piles of manure going into a roadside
ditch are different in relevant respects from cattle that occasionally stand in a river and
defecate in the river. See Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008)
(explaining that to be similarly situated a comparator must be alike “in all relevant aspects”
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992))). In addition, the Amended Complaint
does not sufficiently allege that any of the individual defendants were personally involved
in depriving them of their equal protection rights. Therefore, the Amended Complaint does

not state an equal protection claim.
Accordingly, the Jagers have not stated a § 1983 claim against any of the individual
defendants in their personal capacities.

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(e) State Law Claims
Under Pennsylvania law, sovereign immunity applies to Commonwealth
employees in both their official and personal capacities. See Maute v. Frank, 657 A.2d 985,
986 (Pa. Super. Ct. 1995); see also Green v. Wetzel, No. CV 18-93, 2019 WL 1426955, at *8 (W.D.
Pa. Mar. 29, 2019); Larsen v. State Employees’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa.
2008). An action falls within the scope of employment if: (1) it is the kind that the employee
is employed to perform; (2) it occurs substantially within the job’s authorized time and

space limits; and (3) it is motivated at least in part by a desire to serve the employer. Flagg
v. Int'l Union, Sec., Police, Fire Pros. of Am., Loc. 506, 146 A.3d 300, 309 (Pa. Commw. Ct. 2016);
see Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D. Pa. 2010). Even “willful misconduct
does not vitiate a Commonwealth employee’s immunity if the employee is acting within
the scope of his employment, including intentional acts which cause emotional distress.”
Mitchell, 680 F. Supp. 2d at 682 (quoting Cooper v. Beard, Civ. A. No. 06-171, 2006 WL
3208783, at *16 (E.D. Pa. Nov. 2, 2006)).
It is clear from the face of the complaint that the individual defendants’ actions fall
within the scope of their employment. None of the exceptions to sovereign immunity apply
here. See 42 Cons. Stat. § 8522(a). Accordingly, Herb, Tomei, and Heggenstaller, as
employees of an agency of the Commonwealth, are entitled to the protections afforded by
sovereign immunity. See McGarth v. Johnson, 67 F. Supp. 2d 499, 511 (B.D. Pa. 1999).
Therefore, the Jagers’ state law tort claims against Herb, Tomei, and Heggenstaller in their
personal capacities are dismissed.

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VI. ‘Scope of Dismissal
When a district court dismisses one or more claims pursuant to Rule 12(b)(6), the

court must permit the plaintiff the opportunity to amend the complaint unless amendment
would be inequitable or futile. Phillips v. Cnty. Of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008)
(citation omitted). The claims against the DEP were already dismissed with prejudice. For
the reasons discussed above, the Jagers are unable to state a claim against the individual
defendants in their official capacities because, like the claim against the DEP, the claims

against them in their official capacities are barred by sovereign immunity. The state law
claims against the individual defendants in their personal capacities are also barred by
sovereign immunity.
It is conceivable that the Jagers could state a § 1983 claim against the individual
defendants in their personal capacities. Thus, it is proper to allow the Jagers the
opportunity to amend their complaint regarding their federal claims against Herb, Tomei,
and Heggenstaller in their personal capacities.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARGARET M. JAGER and ROBERT __) Case No. 3:20-cv-15
W. JAGER, )
Plaintiffs, )
) JUDGE KIM R. GIBSON
v. )
)
DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
DAWN HERB, MICHAEL TOMEI, )
AND ELLIOT HEGGENSTALLER, )
)
Defendants. )

| ORDER
AND NOW, this gd day of March, 2021, upon consideration of Defendants’ Motion
to Dismiss (ECF No. 29), IT Is HEREBY ORDERED that the Motion is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for reconsideration of the
dismissal with prejudice of the claims against the Pennsylvania Department of
Environmental Protection (ECF No. 18) is DENIED and the claims against the Pennsylvania
Department of Environmental Protection remain DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiffs’ claims against Dawn Herb, Michael
Tomei, and Elliot Heggenstallar in their official capacities are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiffs’ state law claims against Dawn Herb,
Michael Tomei, and Elliot Heggenstallar in their personal capacities are DISMISSED
WITH PREJUDICE.

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IT 1S FURTHER ORDERED that the Plaintiffs’ 42 U.S.C. § 1983 claims against
Dawn Herb, Michael Tomei, and Elliot Heggenstallar in their personal capacities are
DISMISSED WITHOUT PREJUDICE. Plaintiffs shall have until April 26, 2021 to file a
Second Amended Complaint.

BY THE COURT: .

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416525. Public record. Not legal advice.