MADER v. UNION TOWNSHIP

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CARLA MADER, MARTIN E. MADER, )

MIECZYSLAW GNIADEK, SABINE )

GNIADEK, ) 2:20-CV-01138-CCW

)

)

Plaintiffs, )

)

v. )

)

UNION TOWNSHIP, HEATHER DAERR, )

)

CHARLES TRAX, JR., RICHARD

)

LAWSON, FRANK L. MASSARI, GARY )

SWEAT, KEVIN DAERR, JESSICA )

STINER, JARROD D'AMICO, KRIS )

BOCKSTOCE, MICHAEL E. CRUNY, )

JAMES HARSHMAN, TRAVIS )

RICHMOND, and DOES 1–50, )

)

)

Defendants. )

MEMORANDUM OPINION AND ORDER

DENYING MADER PLAINTIFFS’ MOTION TO RECONSIDER

On August 27, 2021, the Court granted in part and denied in part Defendant’s Motion to

Dismiss pro se Plaintiffs Carla Mader’s and Martin E. Mader’s Second Amended Complaint. ECF

Nos. 170 (the “Opinion”), 171. The Maders moved for reconsideration on September 17, 2021.

ECF No. 177 (the “Motion”). Defendants have responded to the motion for reconsideration, ECF

Nos. 180, 181, and it is now ripe for review.

I. Standard of Review

When a district court dismisses a claim pursuant to Rule 12(b)(6), but other claims remain

in the action, the order dismissing the claims is an interlocutory order rather than a final order.

State Nat’l Ins. Co. v. County of Camden, 824 F.3d 399, 406 (3d Cir. 2016). “Although the Federal

Rules of Civil Procedure do not specifically recognize a motion for reconsideration,” a district

court “has the inherent power to reconsider prior interlocutory orders.” Deeters v. Phelan Hallinan

& Schmieg, LLP, Civil Action No. 3:11-252, 2013 WL 6524625, at *1 (W.D. Pa. Dec.12, 2013)

(Gibson, J.); see also Fed. R. Civ. P. 54(b) (interlocutory orders “may be revised at any time

before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.”).

In the case of interlocutory orders, “‘[c]ourts tend to grant motions for reconsideration

sparingly and only upon the grounds traditionally available under Fed. R. Civ. P. 59(e).’” Deeters,

2013 WL 6524625, at *2 (quoting A&H Sportswear Co., Inc. v. Victoria's Secret Stores, Inc., CIV.

A. 94-7408, 2001 WL 881718, at *1 (E.D. Pa. May 1, 2001)) (alteration in the original).

Thus, because “federal courts have a strong interest in [] finality” and because “a motion

for reconsideration is not a tool to re-litigate and reargue issues which have already been

considered and disposed of by the court,” such motions “should be granted sparingly.” EEOC v.

United States Steel Corp., Civil Action No. 10-1284, 2012 WL 1150799 at *7 (W.D. Pa. Apr. 5,

2012) (Fischer, J.) (citations omitted).

Reconsideration is available only where the movant shows at least one of the following:

(1) an intervening change in the controlling law; (2) the availability

of new evidence; or (3) the need to correct a clear error of law or

fact or to prevent manifest injustice.

Max’s Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (applying

the Rule 59(e) standard in the context of a contempt order). Mere disagreement with the earlier

ruling is insufficient; the movant must show that the “Court committed a direct, obvious, or

observable error, and one that is of at least some importance to the larger proceedings.” In re

Energy Future Holdings Corp., 904 F.3d 298, 312 (3d Cir. 2018). “[T]he focus is on the gravity

and overtness of the error.” Id.

Because this Court granted in part and denied in part Defendants’ motions to dismiss and

allowed the Mader Plaintiffs leave to amend on specified counts,1 such an order is an interlocutory

order. Borelli v. Reading, 532 F.2d 950, 952 (3d Cir. 1976) (noting that “[g]enerally, an order

which dismisses a complaint without prejudice is neither final nor appealable because the

deficiency may be corrected by the plaintiff without affecting the cause of action” ). As such, the

Court will apply the grounds traditionally available under Fed. R. Civ. P. 59(e) in its review of

Plaintiffs’ Motion.

Plaintiffs seek reconsideration on the following claims in their Second Amended

Complaint, each of which the Court dismissed with prejudice and without leave to amend: Counts

IV (Negligence), VIII (Trespass to Chattels Claims), X (§ 1983), XIII (Misuse of Legal Procedure

and Process Claims), XV (Negligence), XVI (Misuse of Legal Procedure and Process Claims),

XVII (§ 1983), XVIII (§ 1983), XIX (“Deprivation of Rights” Claims), XX (“Deprivation of

Rights” Claims), XXII (Trespass to Chattels Claims). Plaintiffs also seek reconsideration with

respect to Counts XXVI and XXVII (Vicarious Liability), which were dismissed without prejudice

to refile upon the occurrence of certain conditions. See generally, ECF No. 177.

II. Discussion

A. Counts IV and Count XV (Negligence)

In its Opinion, this Court found that Plaintiffs’ negligence claim against Defendant Sweat

(Count IV) and Defendant Stiner (Count XV) failed because Plaintiffs did not identify a legally

cognizable duty that either Defendant Sweat or Defendant Stiner owed to the Plaintiffs. ECF No.

170 at 31–32.

1 The Court granted Plaintiffs leave to amend Counts I, II, III, V, XXIII, and XXIV (each asserting a claim of

intentional infliction of emotional distress against a separate defendant); Count VI (intentional misrepresentation);

Counts IX and XI (both asserting claims under § 1983); Count XXI (“Deprivation of Rights”); and Count XXV

(“Common Law Claim”). See ECF No. 171.

With respect to Defendant Sweat, Plaintiffs’ Motion reiterates the Second Amended

Complaint’s allegations that Defendant Sweat has a duty to all taxpayers. Compare ECF No. 177

¶¶ 3, 5 (alleging Mr. Sweat “has a duty to all taxpayers, including [the] MADERS to accountability

to conduct” and a “responsibility to respond to any legal threat against the TOWNSHIP”) with

ECF No. 126 at ¶ 140 (alleging that Mr. Sweat “has a legal duty because Plaintiffs (sic) tax dollars

pay Union Township for competent public assistance to Township”).

Similarly, with respect to Defendant Stiner, Plaintiffs’ Motion also reiterates the Second

Amended Complaint’s allegations by contending that Defendant Stiner, in leading the planning

department, “had a duty to competently function in her official capacity” and failed to do so

because “her easement agreements” “were deficient.” Compare ECF No. 177 at ¶ 20 with ECF

No. 126 at 151 (alleging that Defendant Stiner “has duty as a representative not to serve MADERS

sham law documents”).

Plaintiff’s Motion, which reiterates the allegations in the Second Amended Complaint, is

attempting to re-litigate issues which the Court has already considered and ruled upon, and that is

not a proper basis for granting a motion for reconsideration. See EEOC, 2012 WL 1150799 at *7

(“[A] motion for reconsideration is not a tool to re-litigate and reargue issues which have already

been considered and disposed of by the court.”). Plaintiffs’ Motion has not alleged an intervening

change in the controlling law or the availability of new evidence. To the extent that Plaintiffs’

Motion is construed as a “need to correct a clear error of law or fact or to prevent manifest

injustice,” Max’s Seafood 176 F.3d at 677, Plaintiffs have not met their burden to show that the

Court’s conclusion that “[t]he professional duties attorneys owe to their local government clients

do not flow to the citizens of those governmental clients” is an error of law, much less a clear error

of law. ECF No. 170 at 33 (citing Marjac, LLC v. Trenk, Civil Action No. 06-1140(JAG), 2006

WL 3751395, at *15 (D.N.J. Dec. 19, 2006).

As such, the Court denies Plaintiffs’ Motion with respect to Counts IV and XV.

B. Count VIII and XXII (Trespass to Chattels Claims)

The Court dismissed Plaintiffs’ trespass to chattels claims because Plaintiffs alleged that

Defendants’ actions deprived Plaintiffs of their real property, as opposed to personal property.

ECF No. 170 at 40.

Plaintiffs’ Motion argues that the rights “retained by individuals ARE one’s property,” and

cites Roe v. Wade, 410 U.S. 113 (1973) for the principle that “individuals own their own body,

and this is also their own property.” ECF No. 177 ¶¶ 13, 18. The crux of Plaintiffs’ argument

appears to be that the Court failed to recognize certain ownership rights. ECF No. 177 at ¶ 8

(alleging that “The MADERS Rights are their personal property.”).

Plaintiffs’ Motion fails to acknowledge that “[p]roperty is divided into two general classes,

real and personal.” 39 P.L.E. PROPERTY § 1 (2021). The term “real property” includes land and

all rights thereto and interests therein. Id. On the other hand, the term “personal property” includes

everything that is the subject of ownership that is not real property. Id. As discussed in the

Opinion, a trespass to chattel claim requires a chattel, which is a “[m]ovable or transferable

property; personal property; esp., a physical object capable of manual delivery and not the subject

matter of real property.” ECF No. 170 at 40 (citing Chattel, Black’s Law Dictionary (11th ed.

2019)). This is different from real property (land), which is not considered to be personal property.

Because the property at issue in the Plaintiff’s Second Amended Complaint was real

property (land) and not a chattel, this Court found that Plaintiffs could not state a claim for trespass

to chattels.

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence. To the extent that Plaintiffs’ Motion is construed as a “need to correct

a clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find its application of the longstanding principles regarding the classification of

property rights to be an error of law, much less a clear error of law.

As such, the Court denies Plaintiffs’ Motion with respect to Counts VIII and XXII.

C. Counts XIII and XVI (Misuse of Legal Procedure and Process Claims)

The Court dismissed Plaintiffs’ misuse of legal procedure claims against Defendant

D’Amico because the February 14, 2019 letter sent by Defendant D’Amico did not initiate any

legal process against Plaintiffs giving rise to a wrongful use of civil proceedings or abuse of

process cause of action. ECF No. 170 at 69.

Plaintiffs’ Motion contends that Defendant D’Amico knew that he “had no authority to …

issue a vacate order or notice” and that the letter did not state that the Township “was concerned

about a threat to public health or safety.” ECF No. 177 ¶¶ 6–7. These facts were previously

alleged in Plaintiffs’ Second Amended Complaint. See ECF No. 126 at 60–61, 149, 152.

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence, but rather seeks to relitigate issues the Court has previously

considered and decided. To the extent that Plaintiffs’ Motion is construed as a “need to correct a

clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find its determination that the February 14, 2019 letter is not a civil proceeding to

be an error of law, much less a clear error of law. See Bell v. Sullivan, No. 17-912, 2017 U.S. Dist.

LEXIS 190150 (E.D. Pa. Nov. 16, 2017) (finding that multiple building code citations were not a

civil proceeding); Grimm v. Borough of Norristown, 226 F. Supp. 2d 606, 655 (E.D. Pa. 2002)

(holding that citations for alleged building code violations did not qualify as civil proceedings or

use of the litigation process); Pellegrino Food Prods. Co. v. City of Warren, 136 F. Supp. 2d 391,

406 (W.D. Pa. 2000).

As such, the Court denies Plaintiffs’ Motion with respect to Counts XIII and XVI.

D. Count X (§ 1983)

The Court dismissed Plaintiffs’ Count XVII § 1983 against Defendant Heather Daerr for

violation of Fifth and Fourteenth Amendment rights with prejudice and without leave to amend.

ECF No. 170 at 48. The Court found that even if Plaintiffs could amend their allegations to support

a plausible substantive due process claim,2 Defendant Heather Daerr, as a single member of the

Board, had no authority to cause the Maders to lack an occupancy permit. Id.

Plaintiffs’ Motion seems to focus on the due process claim, rather than Defendant Heather

Daerr’s lack of authority to cause the Maders to lack an occupancy permit. See ECF No. 177 ¶¶

12, 14 (contending that the Court has potentially overlooked two exhibits showing that Plaintiffs

were compelled to hide and denied the use of their property); Id. ¶ 16 (asserting that the Plaintiffs

would not be required to file a writ of mandamus). To the extent that Plaintiffs’ Motion can be

construed to allege that Defendant Heather Daerr had personal involvement,3 Plaintiffs nonetheless

fail to allege how Defendant Heather Daerr, as a single member of the Board, had the authority to

cause the Maders to lack an occupancy permit.

2 To the extent that Plaintiffs Motion seeks this Courts reconsideration of claims regarding procedural or substantive

due process violation by Union Township, see ECF No. 177 ¶¶ 9-11, the Court will not consider these arguments in

this Motion because the Court dismissed Count IX § 1983 Claim against Defendant Union Township without

prejudice and with leave to amend. With respect to Count X § 1983 Claim against Defendant Heather Daerr, for the

reasons stated above, any amendment to that claim would be futile.

3 See id. ¶ 15 (alleging that Defendant Heather Daerr threatened “Nuclear Option” and worked in concert with

Defendant D’Amico); id. ¶ 16 (alleging that Defendant. Heather Daerr was working with Defendant D’Amico to file

a criminal action that would remove Plaintiffs from their property).

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence. To the extent that Plaintiffs’ Motion is construed as a “need to correct

a clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find that Defendant Heather Daerr’s lack of personal involvement due to her lack

of authority as a single member of the Board to be a clear error of law. As such, the Court denies

Plaintiffs’ Motion with respect to Count X.

E. Count XVII (§ 1983)

The Court dismissed Plaintiffs’ Count XVII § 1983 claim against Township Officials

because Plaintiffs sought redress for violation of state, as opposed to federal, rights (failure to

disclose agendas of Township meetings, failure to follow protocol and procedure, and violations

of Pennsylvania’s Sunshine Act). ECF No. 170 at 51–52.

Plaintiffs’ Motion requests that the Court allow Plaintiffs to amend Count XVII because

they should have named “Union Township” instead of “Township Officials” as defendant. ECF

No. 177 ¶ 21. While Plaintiffs are correct that municipalities are considered persons that may be

sued under § 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), Plaintiffs’ proposed

amendment would not cure Count XVII’s deficiencies, because § 1983 provides a mechanism for

redressing violations of federal rights—not state rights. See ECF No. 170 at 51–52. Because

Count XVII in Plaintiffs’ Second Amended Complaint is a § 1983 claim for violation of state

rights, any amendment of that claim—including by changing the defendant—would be futile. ECF

No. 170 at 51–52.

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence. To the extent that Plaintiffs’ Motion is construed as a “need to correct

a clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find its application of § 1983 as an a mechanism for redressing violations of federal

rights—not state rights—to be a clear error of law. As such, the Court denies Plaintiffs’ Motion

with respect to Count XVII.

F. Count XVIII (§ 1983)

The Court dismissed Plaintiffs’ Count XVIII § 1983 claim against Union Township and

“Township Officials” with prejudice and without leave to amend on the grounds of qualified

immunity. ECF No. 170 at 53–58.

Plaintiffs’ Motion now appears to seek the inclusion of the July 8, 2020 meeting at 4:00pm

as part of Count XVIII. Compare ECF No. 126 ¶ 154 (alleging the violation of First and Ninth

Amendment for denying the “right to assemble …[and] right to speak in a public forum, June 24,

2020” where officials locked the door) (emphasis added) with ECF No. 177 ¶ 19 (contending that

Plaintiffs were “unlawfully denied entry into the 4pm, meeting on July 8th, 2020”) (emphasis

added). This additional claim, which is not based on newly available facts, is insufficient to grant

reconsideration, because the Court dismissed Count XVIII on the basis of qualified immunity.

Just as the Court found that Defendant Kevin Daerr was entitled to qualified immunity for

blocking access to the building on July 8, 2020, see ECF No. 170 at 64, any Township Officials

would equally be entitled to qualified immunity in the context of the July 8, 2020 meeting as it

would have been unclear to the Township Officials at the time that denying the Plaintiffs physical

access to the July 8, 2020 meeting violated a clearly established right.

Plaintiffs’ Motion additionally alleges that they have “not been afforded discovery and

further depositions to isolate which actors were responsible for unlawfully denied (sic) entry into

the 4pm, meeting on July 8th, 2020.” ECF No. 177 ¶ 19. However, the Court already considered

the unspecified “Township Officials” and found that their subsequent identification would be

futile, “because any of the Township officials who could be liable … would also be entitled to

qualified immunity.” See ECF No. 170 at 58 n. 10.

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence. To the extent that Plaintiffs’ Motion is construed as a “need to correct

a clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find that affording qualified immunity to Township Officials regarding the physical

attendance restrictions for Township meetings due to COVID-19 mitigation protocols is a clear

error of law. As such, the Court denies Plaintiffs’ Motion with respect to Count XVIII.

G. Count XX (“Deprivation of Rights” Claim)

The Court dismissed Count XX against Defendant Kevin Daerr with prejudice and without

leave to amend on the grounds of qualified immunity with respect to his actions to prevent the

public, including Mrs. Mader, from physically attending the July 8, 2020 meeting. ECF No. 170

at 63–64.

Plaintiffs’ Motion contends that their rights were violated by Defendant Kevin Daerr

blocking4 their access to the July 8th, 2020 meeting at 4:00pm “for which Zoom was not available.”

ECF No. 177 ¶ 19. The allegation that Zoom was not available for that meeting, rather than being

a newly available fact, appears to contradict the Second Amended Complaint and its Exhibit U.

See ECF No. 126 at 19 (noting that Plaintiffs, while “waiting to get into the building, were unable

to logon to this meeting” but also alleging that “[t]he Zoom meeting was moderated the MR.

MASSARI, and public comments were selective and stifled.”); see ECF No. 126-20 (“[T]he

4 Plaintiffs cite to affidavits attached to the Second Amended Complaint, see ECF Nos. 126-11, 126-19, and an

exhibit to a motion for judicial notice (denied in part), see ECF Nos. 152, 155, to show that Defendant Kevin Daerr

was “blocking” the entrance. Such information is not new factual information and was taken into consideration in

this Court’s Opinion. See ECF No. 170 at 64 (“Mr. Daerr is entitled to qualified immunity with respect to his

actions to prevent … Mrs. Mader, from physically attending the July 8, 2020 meeting.”) (emphasis added).

township is open to the public for meetings… we are using Zoom to allow more participants and

not force people to stand outside and wait to come in. There is limited access and seating

available.”)

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence. To the extent that Plaintiffs’ Motion is construed as a “need to correct

a clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d at 677, the

Court does not find the newly alleged contradictory information regarding the availability of Zoom

access to necessitate the correction of an error of fact, let alone a clear one. As such, the Court

denies Plaintiffs’ Motion with respect to Count XX.

H. Count XIX (“Deprivation of Rights” Claim)

The Court dismissed Plaintiffs’ “Deprivation of Rights” Claim in Count XIX with

prejudice and without leave to amend because res judicata bars the Plaintiffs claims against

Defendant Massari. See ECF No. 170 at 58–63 (finding that the preliminary objections filed by

Plaintiffs5 previously raised the violation of due process right on the grounds that Defendant

Massari was not entitled to vote on the eminent domain issues due to prior felony convictions).

Plaintiffs’ Motion reasserts facts previously alleged in their Second Amended Complaint.

Compare ECF No. 177 ¶ 22 (contending that Defendant Massari was illegally appointed and

challenging validity of the Board’s vote to establish easements via eminent domain) with ECF No.

126 ¶¶ 96, 112, 114, 155 (contesting the validity of the Board’s vote due to the fact that, as a

convicted felon, Defendant Massari illegally accepted his position on Board).

Plaintiffs’ Motion has not alleged an intervening change in the controlling law or the

availability of new evidence, but rather seeks to re-litigate issues that the Court has previously

5 See Union Twp. v. Mader, C-63-CV-20203284 (Pa. C.P. Washington); Union Twp. v. Mader, C-63-CV-20203711

(Pa. C.P. Washington).

considered and decided. To the extent that Plaintiffs’ Motion is construed as a “need to correct a

clear error of law or fact or to prevent manifest injustice,” Max’s Seafood 176 F.3d, the Court does

not find the fact that the application of the principles of res judicata with respect to Plaintiffs’

preliminary objections to be a clear error of law.

As such, the Court denies Plaintiffs’ Motion with respect to Count XIX.

I. Counts XXVI and XXVII (Vicarious Liability)

In its Opinion, this Court found that Plaintiffs’ Vicarious Liability claims against

Defendant Harshman and Defendant Richmond were unripe because Plaintiff did not first establish

liability of (i) Defendant Harshman’s alleged employees, Defendants D’Amico and Stiner, and (ii)

Defendant Richmond’s alleged employee, Defendant Bockstoce. See ECF No. 170 at 71–72. The

Court therefore dismissed the claims of vicarious liability without prejudice to refile this claim if

Plaintiffs are successful in establishing liability as to Defendants D’Amico, Stiner, or Bockstoce.

Id. at 72.

Because the Court granted a dismissal without prejudice to refile the claim contingent on a

subsequent event, Plaintiffs cannot allege a manifest injustice. Further, Plaintiffs’ Motion has not

alleged an intervening change in the controlling law, the availability of new evidence,6 or the need

to correct a clear error of law or fact. As such, the Court denies Plaintiffs’ Motion for

reconsideration with respect to Counts XXVI and XXVII.

6 Plaintiffs offers two reasons why the Court should reconsider its Opinion on Counts XXVI and XXVII. First,

Plaintiffs contend that they have not had a chance to depose Defendants Harshman and Richmond. Next, they

contend that evidence indicates that Defendants Harshman and Richmond communicated with and gave orders to

their respective alleged employees. See ECF No. 177 ¶¶ 23-24. Neither of these proposed reasons for

reconsideration have merit because Plaintiffs’ claims of vicarious liability are simply unripe until Plaintiffs establish

liability as to Defendants D’Amico, Stiner, or Bockstoce. See ECF No. 177 at 72.

III. Conclusion

For the reasons set forth above, it is hereby ORDERED that Plaintiffs’ Motion for

Reconsideration is DENIED.

DATED this 14th day of October, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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