# Kress v. Zoning Hearing Board of Sugarloaf Township

> District Court, M.D. Pennsylvania · June 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11068672

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11068672

## How later opinions describe it (automated extraction)

- stating “the absence of standing leaves the court without subject matter jurisdiction to reach a decision on the merits”
- stating “[h]aving dismissed the Amended Complaint for lack of standing, the Court need not address Defendants' further arguments”
- stating “[v]ague and conclusory statements of injury do not suffice to [show injury in fact]”
- stating “[a]lthough ‘[i]njury-in-fact is not Mount Everest,’ it is more than a desert mirage. . . [Third Circuit] precedent requires the plaintiff to do more than simply pair a conclusory assertion of money lost with a request that a defendant pay up”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HARRY J. KRESS, JR.,

Plaintiff, CIVIL ACTION NO. 3:23-CV-01389

v. (MEHALCHICK, J.)

ZONING HEARING BOARD OF
SUGARLOAF TOWNSHIP, et al.,

Defendants.

MEMORANDUM
Presently before the Court are the motions to dismiss filed by Defendants JVI, LLC
and Crossroads XOX, LLC’s (collectively, “JVI Defendants”) and Defendants Zoning
Hearing Board of Sugarloaf Township (“Zoning Board”), Timothy Mundie (“Mundie”),
George Maue (“Maue”), Dean Hillard (“Hillard”), Sugarloaf Township (“Sugarloaf”), Rick
Weaver (“Weaver”), Joseph DiSabella (“Disabella”), and Richard Yost’s (“Yost”)
(collectively, “Sugarloaf Defendants”). (Doc. 4; Doc. 6). Plaintiff initiated this action by filing
a complaint in the Court of Common Pleas of Luzerne County against JVI Defendants and
Sugarloaf Defendants (together, “Defendants”). (Doc. 1-1). On August 21, 2023, Defendants
removed this action to the Middle District.1 (Doc. 1). For the reasons provided herein,
Defendants’ motions to dismiss are GRANTED. (Doc. 4; Doc. 6).

1 Plaintiff raises federal claims pursuant to 42 U.S.C. § 1983, the First Amendment,
and the Fourteenth Amendment. (Doc. 1, at 2; Doc. 1-1, at 25-29, 31-36). Where a federal
court has original jurisdiction over a claim it also has supplemental jurisdiction over “all other
claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
28 U.S.C.A. § 1367. The state and federal claims both arise out the same zoning dispute.
(Doc. 1; Doc. 1-1).
I. BACKGROUND AND PROCEDURAL HISTORY
The following background is taken from the complaint and for the purposes of the
instant motion is taken as true. (Doc. 1-1). On December 5, 2019, JVI Defendants filed a
zoning application with the Zoning Board to build three warehouses. (Doc. 1-1, at 4). The

Zoning Board, Mundie, Maue, and Hillard denied the zoning application on January 29,
2020, due to the warehouses’ proposed 50-foot building heights. (Doc. 1-1, at 4). On January
8, 2020, JVI Defendants filed a zoning appeal. (Doc. 1-1, at 4-5). On January 29, 2020, the
Zoning Board, Mundie, Maue, and Hillard granted JVI Defendants a special exception use
approval and variance to build two warehouses with 50-foot building heights. (Doc. 1-1, at 5,
139). The Zoning Board gave JVI Defendants one year to complete their construction of the
warehouses, but JVI Defendants failed to do so. (Doc. 1-1, at 5-6).
Plaintiff raised JVI Defendants’ failure to meet their construction deadline with the
Zoning Board and JVI Defendants filed another zoning appeal on March 30, 2022. (Doc. 1-

1, at 8). This zoning appeal requested that JVI Defendants be granted another year to
complete construction and that this time limit would not start until after JVI Defendants
received all relevant land and permitting approvals for their construction. (Doc. 1-1, at 6). On
April 25, 2022, the Zoning Board held a hearing on JVI Defendants’ appeal. (Doc. 1-1, at 7).
Plaintiff attended the hearing and objected. (Doc. 1-1, at 7). At the hearing, the Zoning Board,
Mundie, Maue, and Hillard granted JVI Defendants an extra two-and-a-half years to
complete construction. (Doc. 1-1, at 7). Plaintiff planned to appeal this decision, but before
he could, the Zoning Board reversed its decision and set another hearing. (Doc. 1-1, at 7-9).
Plaintiff planned to challenge JVI Defendants’ zoning appeal again. (Doc. 1-1, at 9).
However, on August 19, 2022, Sugarloaf’s Board of Supervisors, including Weaver,
DiSabella, and Yost, enacted Ordinance No. 2 of 2022 (the “Ordinance”). (Doc. 1-1, at 9-10).
The Ordinance retroactively granted JVI Defendants two years to complete their construction
and this time limit would not start until after JVI Defendants received their relevant land and
permitting approvals. (Doc. 1-1, at 9-11). JVI Defendants withdrew their zoning appeal on

September 21, 2022. (Doc. 1-1, at 10). On April 20, 2023, Plaintiff requested a hearing before
the Zoning Board to object to the Ordinance but the Zoning Board, Mundie, Maue, and
Hillard denied this request. (Doc. 1-1, at 10-11).
On August 8, 2023, Plaintiff filed the complaint asserting seven Counts2 under
municipal, state, and federal law. (Doc. 1-1). Count I alleges violations of Section 617 of the
Pennsylvania State Municipal Planning Code (“MPC”) against all Defendants (Doc. 1-1, at
22-23). Count II alleges violations of Sections 609, 609.2, and 610 of the MPC against
Sugarloaf, Weaver, DiSabella, and Yost. (Doc. 1-1, at 23-25). Counts III, IV, and V allege
violations of Plaintiff’s substantive and procedural due process rights under the Fourteenth
Amendment and Pennsylvania Constitution against all Defendants. (Doc. 1-1, at 25-31).

Count VI alleges a civil conspiracy to violate Plaintiff’s due process rights against all
Defendants. (Doc. 1-1, at 31-21). Count VII alleges violations of Plaintiff’s First Amendment
rights against Sugarloaf Defendants. (Doc. 1-1, at 33-34).
On August 30, 2023, Sugarloaf Defendants filed a motion to dismiss and subsequently
filed a brief in support on September 9, 2025. (Doc. 4; Doc. 12). On September 5, 2025, JVI

2 The complaint contains two sections labeled Count VII. (Doc. 1-1, at 33-36). The
first is a cause of action under the First Amendment and the second is a section entitled
“Mandamus”. (Doc. 1-1, at 33-36). Mandamus is not a cause of action, it is remedy. See In re
Sanders, 800 F. App'x 140, 141 (3d Cir. 2020) (describing mandamus as a remedy). Therefore,
the Court interprets the complaint’s “Mandamus” section to be a request for relief rather than
a separate cause of action. (Doc. 1-1, at 34-36).
Defendants filed a motion to dismiss and subsequently filed a brief in support on September
19, 2023. (Doc. 6; Doc. 15). The Court stayed this case pending mediation on October 2,
2023. (Doc. 17; Doc. 19). On October 25, 2023, the Court closed this case after the parties
reached a settlement agreement. (Doc. 22). However, on January 14, 2025, the Court

reopened the case due to disputes over the settlement agreement and ordered Plaintiff to file
a brief in opposition to JVI Defendants’ motion to dismiss. (Doc. 23, Doc. 31). On January
23, 2025, Plaintiff’s counsel withdrew from the case, and the Court stayed this case to allow
Plaintiff to secure new counsel. (Doc. 33). The Court lifted the stay on April 18, 2025, and
ordered Plaintiff to file a brief in opposition to JVI Defendants’ motion to dismiss. (Doc. 35).
On May 14, 2025, the Court ordered Plaintiff to file briefs in opposition to both Defendants’
motions to dismiss and to show cause as to why this case should not be dismissed for failure
to prosecute. (Doc. 36). To date, Plaintiff has failed to comply with any of the Court’s orders,
file a brief in opposition to either motion to dismiss, or otherwise show cause.
I. LEGAL STANDARDS

A. MOTION TO DISMISS STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move
to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first
take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions
that are not entitled to the assumption of truth, and finally determine whether the complaint’s
factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch
v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion,
the court may consider the facts alleged on the face of the complaint, as well as “documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements that make up the legal claim, a court should
“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff
must provide some factual ground for relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’. . . ”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a
plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v.

Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting
Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be construed
in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for
which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).
The plausibility determination is context-specific and does not impose a heightened pleading
requirement. Schuchardt, 839 F.3d at 347.

B. 42 U.S.C. § 1983
Section 1983 is the vehicle by which private citizens may seek redress for violations of
federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute
states, in pertinent 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 in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.
“Section 1983 is not a source of substantive rights,” but is merely a means through
which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.
273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:
(1) the conduct complained of was committed by persons acting under color of state law; and
(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of
the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
C. FAILURE TO PROSECUTE
Federal Rule of Civil Procedure 41(b) provides that an action may be involuntarily
dismissed “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.”
Further, the rule permits sua sponte dismissals by the court. See Link v. Wabash R.R. Co., 370
U.S. 626, 630–31 (1962); see also Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988) (same).
“The authority of a court to dismiss sua sponte for lack of prosecution has generally been
considered an inherent power, governed not by rule or statute but by the control necessarily

vested in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link, 370 U.S. at 630–31; see also Mindek v. Rigatti, 964 F.2d 1369 (3d
Cir. 1992). Specifically, a plaintiff's failure to comply with a court order constitutes a failure
to prosecute their action, and therefore the action is subject to dismissal pursuant to Fed. R.
Civ. P. 41(b). A court's decision to dismiss for failure to prosecute is committed to the court's
sound discretion and will not be disturbed absent an abuse of discretion. See Emerson v. Thiel
Coll., 296 F.3d 184, 190 (3d Cir. 2002). In evaluating whether an action should be dismissed
for failure to prosecute, a court must balance six factors:
(1) the extent of the party's personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party . . .
was willful or in bad faith; (5) the effectiveness of sanctions other than
dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.

Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

The Poulis factors are not “a magic formula whereby the decision to dismiss or not to dismiss
a plaintiff's complaint becomes a mechanical calculation.” Mindek, 964 F.2d at 1373. No one
factor is determinative and not all of the Poulis factors must be met to warrant dismissal.
Mindek, 964 F.2d at 1373; see also Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). Instead,
the decision must be made in the context of the court’s extended contact with the litigant.
Dismissal for failure to prosecute is appropriately labeled a “drastic sanction,” however,
because it is “deemed to be an adjudication on the merits, barring any further action between
the parties.” Sebrell ex rel. Sebrell v. Phila. Police Dep't, 159 F. Appx. 371, 373 (3d Cir. 2005) (not
precedential) (citing Landon v. Hunt, 977 F.2d 829, 833 (3d Cir. 1992); Fed. R. Civ. P. 41(b)).
II. DISCUSSION
A. DEFENDANTS’ MOTIONS TO DISMISS ARE DEEMED UNOPPOSED.

As an initial matter, under the Local Rules of the Middle District, Defendants’ motions
should be deemed unopposed because Plaintiff has failed to file any brief in opposition despite
being ordered to do so three times. (Doc. 31; Doc. 35; Doc. 36). Local Rule 7.6 states “[a]ny
party opposing any motion, other than a motion for summary judgment, shall file a brief in
opposition within fourteen (14) days after service of the movant's brief. . . Any party who fails
to comply with this rule shall be deemed not to oppose such motion.” Local Rule 7.6 (emphasis
added).
“[L]ocal rules play ‘a vital role in the district courts' efforts to manage themselves and
their dockets.’” Smith v. Oelenschlager, 845 F.2d 1182, 1184 (3d Cir. 1988) (quoting Eash v.

Riggins Trucking Inc., 757 F.2d 557, 570 (3d Cir. 1985)). The Court is obligated to ensure
parties who follow the local rules are not prejudiced by those who violate them. See United
States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 215 (3d Cir. 2000) (finding a
court may only decline to enforce local rules where “doing [so] does not unfairly prejudice a
party who has relied on the local rule to his detriment”); see also Beckett v. Closton, No. 1:24-
CV-00476, 2025 WL 308121, at *1 (M.D. Pa. Jan. 27, 2025) (stating “the court must ensure
that a party's failure to comply with the rules does not prejudice those parties who follow the
rules”). In this case, Plaintiff has failed to comply with Local Rule 7.6 by failing to file briefs
in opposition to Defendants’ motions to dismiss despite the Court’s repeated orders to do so.
(Doc. 31; Doc. 35; Doc. 36). This failure now compels the Court to deem Defendants’
motions unopposed.
B. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO PROSECUTE.
Although Defendants’ motions to dismiss are deemed unopposed, the Court must

“analyze the Poulis factors before imposing sanctions of dismissal.” United States v. Brace, 1
F.4th 137, 143 (3d Cir. 2021). Here, the Poulis factors weigh heavily in favor of dismissal. 747
F.2d at 868.
1. Plaintiff's Personal Responsibility.
The Court finds that the first Poulis factor, the extent of Plaintiff’s personal
responsibility, weighs in favor of dismissal because the delays in this case are entirely
attributable to Plaintiff. 747 F.2d at 868. On January 23, 2025, this Court granted Plaintiff’s
Counsel’s Motion to Withdraw as Attorney for Plaintiff. (Doc. 33). Plaintiff has not obtained
new counsel. Therefore, because Plaintiff is now proceeding as a pro se litigant, he is solely
responsible for prosecuting this action. See Hoxworth v. Blinder Robinson & Co., 980 F.2d 912,

920 (3d Cir. 1992). “As a general rule, a pro se litigant is responsible for h[is] failure to comply
with court orders.” Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (not precedential);
see also Emerson, 296 F.3d at 191; Winston v. Lindsey, Civ. No. 09-224, 2011 WL 6000991, at
*2 (W.D. Pa. Nov. 30, 2011) (concluding that a pro se litigant “bears all of the responsibility
for any failure to prosecute his claims”).
Plaintiff has failed to file a brief in opposition despite being ordered to do so three
separate times. (Doc. 31; Doc. 35; Doc. 36). Additionally, Plaintiff was specifically warned
that his failure to respond to the Court’s orders may result in the dismissal of this action. (Doc.
36). As of the date of this memorandum, Plaintiff has failed to comply with any of the Court’s
directive or otherwise attempt to litigate this case. Accordingly, the first Poulis factor weighs
in favor of dismissal. 747 F.2d at 868.
2. Prejudice to the Moving Party
The second Poulis factor, prejudice to the moving party, also weighs in favor of
dismissal. 747 F.2d at 868. A finding of prejudice does not require “irremediable harm.”

Adams v. Trs. of N.J. Brewery Emps.’ Pension Tr. Fund, 29 F.3d 863, 873–74 (3d Cir. 1994).
Rather, “the burden imposed by impeding a party's ability to [effectively prepare] a full and
complete trial strategy is sufficiently prejudicial.” Ware v. Rodale Press, Inc., 322 F.3d 218, 222
(3d Cir. 2003). Here, the Court finds that Plaintiff’s failure to respond to the Court’s orders
has frustrated and delayed resolution of this action. Going forward, such failure to litigate
would prejudice Defendants because Defendants could not seek a timely resolution of the
case. Accordingly, the Court finds that the second Poulis factor weighs in favor of dismissal.
747 F.2d at 868.
3. History of Dilatoriness

The third Poulis factor, history of dilatoriness, also weighs in favor of dismissal. 747
F.2d at 868. “Extensive or repeated delay or delinquency constitutes a history of dilatoriness,
such as consistent non-response to interrogatories, or consistent tardiness in complying with
court orders.” Adams, 29 F.3d at 874; see also Emerson, 296 F.3d at 191 (per curium) (finding
a history of dilatory conduct where the plaintiff repeatedly requested stays and failed to
comply with court-mandated deadlines). Conversely, “conduct that occurs one or two times
is insufficient to demonstrate a history of dilatoriness.” Briscoe v. Klaus, 538 F.3d 252, 261 (3d
Cir. 2008) (citation omitted). In deciding whether a history of dilatory conduct exists, this
Court must evaluate “a party's problematic acts . . . in light of its behavior over the life of the
case.” Adams, 29 F.3d at 875. Here, Plaintiff has failed to comply with three separate briefing
orders. (Doc. 31; Doc. 35; Doc. 36). Plaintiff’s Counsel also withdrew after Plaintiff “stopped
responding to his counsel for several months, despite repeated attempts [counsel] made by
phone, letter, email and text.” (Doc. 32, at 3). Moreover, Plaintiff has failed to obtain new

counsel, or, alternatively, advise the Court of his intention to proceed in a pro se status.
Accordingly, Plaintiff’s actions demonstrate a history of dilatoriness that weighs in favor of
dismissal. 747 F.2d at 868.
4. Willful Conduct or Bad Faith
The fourth Poulis factor, willful conduct or bad faith also weighs in favor of dismissal.
747 F.2d at 868. The fourth Poulis factor requires the Court to consider whether Plaintiff’s
conduct reflects mere inadvertence or negligence, as opposed to “intentional or self-serving
behavior.” Adams, 29 F.3d at 875-76. “Under this factor, the District Court must consider
whether the conduct was the type of willful or contumacious behavior which [can be]
characterized as flagrant bad faith.” Briscoe, 538 F.3d at 262 (quotation omitted). Here,

Plaintiff’s failure to abide by multiple Court orders, failure to file briefs in opposition to
Defendants’ motions to dismiss, and failure to explain his delay “demonstrate[s] a willful
disregard for procedural rules and court directives.” Gilyard v. Dauphin Cty. Work Release, No.
10-1657, 2010 WL 5060236, at *2 (M.D. Pa. Dec. 6, 2010). Thus, the fourth Poulis factor
weighs in favor of dismissal. 747 F.2d at 868.
5. Availability of Alternative Sanctions
The fifth Poulis factor, the effectiveness of sanctions other than dismissal, weighs in
favor of dismissal. 747 F.2d at 868. Generally, “sanctions less than dismissal [are] ineffective
when a litigant, such as [Plaintiff], is proceeding pro se.” See Lopez, 435 F. App’ x at 116;
Emerson, 296 F.3d at 191 (per curium); see also Nowland v. Lucas, No. 1:10-CV-1863, 2012 WL
10559, at *6 (M.D. Pa. Jan. 3, 2012) (“This case presents such a situation where the plaintiff's
status as a pro se litigant severely limits the ability of the court to utilize lesser sanctions to
ensure that this litigation progresses in an orderly fashion”). The Court has endeavored to use

lesser sanctions by entering prior orders and counseling Plaintiff on his obligations in this
action, to no avail. Accordingly, the fifth Poulis factor weighs in favor of dismissal. 747 F.2d
at 868.
6. Meritoriousness of Plaintiff's Claims
The final Poulis factor, the meritoriousness of Plaintiff’s claims, weighs in favor of
dismissal for every claim except for Count VII. 747 F.2d at 868. A claim is deemed
meritorious when “the allegations of the pleadings, if established at trial, would support
recovery by plaintiff.” Poulis, 747 F.2d at 870. “Generally, in determining whether a plaintiff's
claim is meritorious, [courts] use the standard for a Rule 12(b)(6) motion to dismiss for failure
to state a claim.” Briscoe, 538 F.3d at 263 (citing Poulis, 747 F.2d at 869–70). Accordingly, the

Court will consider the merits of Defendants’ motions to dismiss. (Doc. 4; Doc. 6).
Sugarloaf Defendants argue Plaintiff lacks standing because he fails to assert an injury
in fact. (Doc. 1-1, at 9-15). The Court agrees as to Counts I, II, III, IV, V, and VI. “Article III
of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’
and ‘controversies.’” Valley Forge Christian Coll. v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 471 (1982). “The standing doctrine defines what is a ‘case’ or
‘controversy.’” Long v. Se. Pennsylvania Transportation Auth., 903 F.3d 312, 320–21 (3d Cir.
2018). “[A] plaintiff who raises multiple causes of action ‘must demonstrate standing for each
claim he seeks to press.’” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 245 (3d Cir. 2012) (citations omitted).
To assert standing, a plaintiff must show injury in fact. Long, 903 F.3d at 321. Although
plaintiffs do not face a high burden in establishing injury in fact, they must do more than

assert conclusory allegations that they suffered an injury to a protected interest. See In re
Johnson & Johnson Talcum Powder Prods. Mktg., Sales Pracs. & Liab. Litig., 903 F.3d 278, 288 (3d
Cir. 2018) (stating “[a]lthough ‘[i]njury-in-fact is not Mount Everest,’ it is more than a desert
mirage. . . [Third Circuit] precedent requires the plaintiff to do more than simply pair a
conclusory assertion of money lost with a request that a defendant pay up”); see also PSA, LLC
v. Gonzales, 461 F. Supp. 2d 351, 354 (E.D. Pa. 2006) (stating “[v]ague and conclusory
statements of injury do not suffice to [show injury in fact]”).
Regarding Counts I, II, III, IV, V, and VI, Plaintiff asserts he suffered injury because
he was deprived of his rights as an aggrieved person under Pennsylvania zoning law and

because his property interests were harmed without regard for municipal ordinances or due
process protections. (Doc. 1-1, at 2, 6-7, 9, 26, 28, 32). Beginning with Plaintiff’s rights as an
“aggrieved person,” Plaintiff only alleges he meets the legal definition of a “person aggrieved”
with “a direct interest in the subject matter of the litigation” which is “adversely affected.”
(Doc. 1-1, at 9) (citations omitted). Plaintiff does not state what this direct interest is, how this
interest was adversely affect, or otherwise support his assertion. (Doc. 1-1). Regarding injuries
to Plaintiff’s property interests, Plaintiff only states in vague terms that his property interests
were harmed without identifying any specific harm to his property. (Doc. 1-1, at 26, 28).
“These [v]ague and conclusory statements of injury do not suffice.” PSA, LLC, 461 F. Supp.

2d at 354. The Court cannot assume an injury occurs where a plaintiff “fails to even plead as
much.” Johnson & Johnson, 903 F.3d at 287. Accordingly, Plaintiff has failed to identify an
injury in fact supporting Counts I, II, III, IV, V and VI. 3 The Court finds the final Poulis factor
weighs in favor of dismissal of these claims. 747 F.2d at 868
Plaintiff has successfully alleged standing regarding Count VII, Plaintiff’s First

Amendment claim against Sugarloaf Defendants. (Doc. 1-1, at 33-34). Plaintiff alleges that
Sugarloaf Defendants passed the Ordinance and canceled zoning hearings to prevent him
from speaking in opposition to the warehouse project and to retaliate against him for his past
speech. (Doc. 1-1, at 34). This allegation is sufficient to confer standing. See Associated Builders
& Contractors W. Pennsylvania v. Cmty. Coll. of Allegheny Cnty., 81 F.4th 279, 289 (3d Cir. 2023)
(finding a deprivation of First Amendment rights confers standing).
Sugarloaf Defendants move for dismissal of Count VII on two other grounds. First,
they argue that Plaintiff has not shown personal involvement by Defendants Weaver,
DisSabella, Yost, Mundie, Maue, and Hillard. (Doc. 12, at 18). Second, Sugarloaf

Defendants argue the claims against the Zoning Board and Sugarloaf should be dismissed
because Plaintiff failed to allege “Sugarloaf Township developed and maintained policies or
customs exhibiting deliberate indifference to the Constitutional rights of persons in the
township which caused the violation of the Plaintiff’s constitutional rights.” (Doc. 18). Both
arguments are unpersuasive.

3 Because the Plaintiff lacks standing on these claims, the Court need not consider
Defendants’ alternate grounds for dismissal. See Cottrell v. Alcon Lab'ys, 874 F.3d 154, 164 (3d
Cir. 2017) (stating “the absence of standing leaves the court without subject matter jurisdiction
to reach a decision on the merits”); see also Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451, 471
(D.N.J. 2013) (stating “[h]aving dismissed the Amended Complaint for lack of standing, the
Court need not address Defendants' further arguments”).
First, to show personal involvement, “a § 1983 complaint need only allege the conduct,
time, place, and person responsible.” Solan v. Ranck, 326 F. App'x 97, 101 (3d Cir. 2009).
Plaintiff alleges on August 19, 2022, Weaver, DiSabella, and Yost attended a meeting at the
Sugarloaf Township Municipal Building and passed an ordinance for the purpose of

preventing Plaintiff from objecting to JVI Defendants’ zoning appeal. (Doc. 1-1, at 9-10, 222).
Plaintiff further alleges on April 26, 2023, Mundie, Maue, and Hillard arranged for their
attorney to send Plaintiff a letter denying his request to object to the ordinance. (Doc. 1-1, at
9, 11, 220). Accordingly, Plaintiff has sufficiently pled the relevant conduct, times, places,
and people responsible to show personal involvement. Solan, 326 F. App'x at 101; see also Black
& Davison v. Chambersburg Area Sch. Dist., No. 1:17-CV-688, 2018 WL 1566666, at *6 (M.D.
Pa. Mar. 30, 2018) (finding school board members were personally involved where plaintiff
alleged they voted unanimously at a school board meeting).
Regarding Sugarloaf and the Zoning Board’s liability, a municipality may be liable

when it “unconstitutional[ly] implements or executes a[n]. . . ordinance. . . or decision
officially adopted and promulgated by that body’s officials.” Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658, 690 (1978). Official actions through “policy-making individuals
can qualify as acts of official government policy.” DeLuca v. City of Hazleton, 396 F. Supp. 3d
392, 412 (M.D. Pa. 2019). Here, Plaintiff challenges official acts in the forms of zoning
decisions and ordinances. (Doc. 1-1, at 9, 3-34). Accordingly, Sugarloaf Defendants’ motion
to dismiss Count VII is unpersuasive and the final Poulis factor weighs against dismissal of
Count VII. 747 F.2d at 868.
7. Balancing the Poulis factors
The Poulis factors overwhelmingly weigh in favor of dismissal. 747 F.2d at 868. When
weighing the Poulis factors, there is no “magic formula” or “mechanical calculation” that
automatically warrants dismissal. Briscoe, 538 F.3d at 263. Instead, “no single Poulis factor is
dispositive,” and that “not all of the Poulis factors need be satisfied in order to dismiss a

complaint.” Ware, 322 F.3d at 222. Here, every Poulis factor weighs in favor of dismissing
every claim except for Count VII. 747 F.2d at 868. Further, while the final Poulis factor weighs
against dismissal of Count VII, that alone is not sufficient to overcome the weight of the other
factors. See Ware, 322 F.3d at 225 (weighing the Poulis factors in favor of dismissal despite
finding Plaintiff’s claim to be meritorious). Accordingly, Plaintiff’s complaint will be
dismissed for failure to prosecute.
III. CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are GRANTED. (Doc. 4;

Doc. 6). Plaintiff’s complaint will be dismissed with prejudice. The Clerk of Court is directed
to close this matter.4
An appropriate Order follows.

BY THE COURT:
Dated: June 9, 2025 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
United States District Judge

4 On June 5, 2025, the Sugarloaf Defendants filed a motion for judgment; this motion
is DENIED as moot.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11068672. Public record. Not legal advice.