DARBY v. 120 NORTHAMPTON, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

KHANISA DARBY, :

Plaintiff, :

:

v. : Civil No. 24-cv-05421

:

120 NORTHAMPTON, LLC, et al., :

Defendants. :

__________________________________________

MEMORANDUM

SCHMEHL, J. /s/ JLS SEPTEMBER 26, 2025

In the words of the pro se Plaintiff, “[t]his action seeks money damages under 42

U.S.C. § 1983 due to a county sheriff, deputy sheriff, prothonotaries, and multiple

attorneys’ participation in a private party’s unlawful deprivation of the Plaintiff’s

commercial leasehold and personal property in pursuit of a void ab initio confessed

judgement. The Plaintiff alleges that the Defendants acted under color of state law and

violated Plaintiff’s procedural and substantive rights to due process under the Fourth

and Fourteenth Amendments to the Constitution of the United States when her right to

the hearing required by Pennsylvania’s Rules of Civil Procedure governing confessions

of judgment was obstructed. The Plaintiff also brings twelve state law claims pursuant to

this court’s supplemental jurisdiction.” ECF 69 at ¶ 1.

The Second Amended Complaint (“SAC”)1 consists of 81 pages, over 400

allegations and 13 separate counts. It names 21 Defendants. The SAC alleges that

1 Plaintiff filed her original Complaint on October 9, 2024. She subsequently filed an Amended Complaint

on October 28, 2024. [ECF 11.] Many of the Defendants filed motions to dismiss. On January 23, 2025,

Plaintiff filed First Motion for Leave to Amend First Amended Complaint. [ECF 64.] By Order dated

Plaintiff is a resident of Piscataway, New Jersey and operated “The Pudding Bar”

located at 118 Northampton Street, Easton, Northampton County, Pennsylvania (the

“Property”). Id. at ¶ 4.

The SAC alleges that “Defendant 120 Northampton, LLC” is “the

landlord/property owner and holder of the deed to the building housing the subject

premises that is the Plaintiff’s commercial leasehold,” “Defendant Post Road

Management, LLC … is Owner of Defendant 120 Northampton, LLC, and Property

Manager of the subject premises,” and “Defendant Borko Milosev is … sole owner of

120 Northampton, LLC” and “acted as authorized representative for Defendant 120

Northampton, LLC in the underlying state-court confession of judgment proceedings.”

Id. at ¶¶ 5-7.

The SAC alleges that Defendant Steven Todd Williams, Esq. (“Williams”),

represented 120 Northampton, LLC in the underlying confession of judgment action.

Defendant Law Office of Steven T. Williams, LLC, d/b/a Waldron & Williams is the law

firm where Attorney Williams is employed. Defendant JJ Waldron, LLC is a law firm

included as an affiliate of the firms which operate under the name “Waldron & Williams.”

Id. at ¶¶ 8-10.

Plaintiff alleges that Defendant Matthew James Deschler, Esq. (“Deschler”) is an

attorney who also acted as counsel for the Defendant 120 Northampton, LLC in the

underlying state-court confession of judgment proceedings. He practices as an attorney

for Defendant Shay, Santee, Kelhart & Deschler, LLC. Id. at ¶¶ 11-12.

February 6, 2025, the Court, out of an abundance of caution, granted Plaintiff’s motion. [ECF 68.] The

Second Amended Complaint was docketed on February 6, 2025. [ECF 69.]

Plaintiff alleges that Defendant Kathleen A. Nansteel (“Deputy Nansteel”) is a

Deputy Sheriff employed by Northampton County, Pennsylvania. Defendant Sheriff

Richard Johnston (“Sheriff Johnston”) is the County Sheriff employed by Northampton

County, Pennsylvania. Both are sued in their official and individual capacities. Id. at ¶¶

13-14.

Defendant Holly Ruggiero (“Ruggiero”) is the Prothonotary employed by

Northampton County, Pennsylvania. Defendant Melissa Shoemaker (“Shoemaker”) is a

Deputy Prothonotary/Court Clerk employed by Northampton County, Pennsylvania.

Both are sued in their official and individual capacities. Id. at ¶¶ 15-16.

Defendants Samuel E. Cohen, Esq., (“Cohen”) and Constance K. Nelson, Esq,

(“Nelson”) are attorneys employed with the Defendant law firm Gross McKinley, LLP

which represented Plaintiff in the underlying confession of judgment action. Id. at ¶¶ 17-

19.

Defendant Matthew B. Weisberg, Esq.(“Weisberg”), Defendant, Gary Schafkopf,

Esq. (“Schafkopf”), Defendant L. Anthony DiJiacomo, III, Esq. (“DiJiacomo”) are

attorneys employed with the Defendant law firm Weisberg Law P.C which represented

Plaintiff in the underlying confession of judgment action. Id. at ¶¶ 20-23.

Defendant Zachary Zawarski, Esq. (“Zawarski”) is an attorney employed with the

Defendant law firm Zachary Zawarski, LLC which also represented Plaintiff in the

underlying confession of judgment action. Id. at ¶¶ 24-25.

With the exception of Defendants Cohen, Nelson and the law firm of Gross

McKinley, all of the Defendants have filed various motions to dismiss the SAC.

[ECF 70, 75, 76, 77, 78, 81.]

Plaintiff alleges that in 2018, she “and a limited business partner … executed a

commercial lease agreement for legal possession of the subject premises that is 118

Northampton Street, Easton, Northampton County, Pennsylvania with Defendant 120

Northampton, LLC, represented by Borko Milosev.” ECF 69 at ¶ 26. The lease was for

an initial term of eight years with a commencement date of January 1st, 2019,

terminating on December 31st, 2026. Plaintiff alleges that a dispute arose during the

leasehold wherein “Defendant Borko Milosev, reneged on [a] fully working HVAC

agreement” that resulted in a re-execution of the lease terms, which Plaintiff contends

included “an invalid inconspicuous confession of judgment clause” of which Plaintiff

claims she was unaware. See id. ¶¶ 28, 36-39.

“After a dispute, the Plaintiff agreed to pay an additional one hundred dollars

($100.00) each month for the full length of the lease, to receive a fully working HVAC

from the Defendant Borko Milosev, bringing the total monthly rental payment to one

thousand six hundred dollars ($1,600.00) each month from the one thousand five

hundred dollars ($1,500.00) initially agreed to, with a three percent (3%) annual

increase.” Id. at ¶ 37. This was done pursuant to a Lease Amendment that was

executed, again, between Borko Milosev as a representative for 120 Northampton, LLC,

Khanisa Darby, and the limited partner, Marko Golubovic on February 13th, 2019, with

the termination date remaining of December 31st, 2026. Id. at 38. According to Plaintiff,

“the Lease Amendment did not include a confession of judgment clause, nor made any

mention of it.” Id. at 39. However, the Lease Amendment does contain a clause that

states, “The parties hereby affirm that all other terms and conditions of the Lease,

except as modified herein, shall remain in full force and effect.” ECF 69-1, p. 20.

The SAC alleges that the Property “was plagued by repeated maintenance

issues” and sets forth a list of alleged deficiencies. Id. at ¶ 44. Plaintiff further alleges

that “[d]uring the ongoing dispute over the maintenance and major structural concerns,

the Plaintiff withheld two months of rent totaling . . $3,278.18.” Id. at ¶ 47. She alleges

that she reported the Property to the City of Easton’s Code Enforcement on five

separate occasions in 2021-2022. Id. at ¶ 46. She alleges that “after the Plaintiff

reported the building to code enforcement, … 120 Northampton, LLC, and Borko

Milosev by and through their attorney Steven Todd Williams, Esq., filed [on March 24,

2022] a Confession of Judgment Complaint2 for Money and Ejectment against the

Plaintiff, Khanisa’s LLC and Marko Golubovic in the Northampton County Court of

Common Pleas (Docket No. C-48-CV-2022-01773).” Id. at ¶¶ 47-49; ECF 69-1, pp. 23-

26. The Confession of Judgment Complaint was served upon the Plaintiff by Deputy

Nansteel at the commercial leasehold on April 1st, 2022. Id. at ¶ 43. “The Complaint in

Confession of Judgment was for Money, including accelerated rent, and in Ejectment for

Possession of Real Property.” Id. at ¶ 50. “The monetary judgment was entered and

indexed against the Plaintiff, Khanisa’s LLC, and Marko Golubovic, each in the amount

of one hundred sixteen thousand, two hundred forty-seven dollars and fifty-four cents

($116, 247.54).” Id. at ¶44.

Plaintiff retained the law firm of Gross McGinley, LLP by and through Attorneys

Cohen and Nelson. On April 25, 2022, Cohen filed in the Court of Common Pleas of

Northampton County a “Petition to Strike/Open Confessed Judgment.” ECF 69-1, pp.

2 The Lease contained a Confession of Judgment clause in mostly capital letters which stated, inter alia,

that in the event of a default by the tenant, the Landlord may cause judgment to be entered for all unpaid

rent as well as all future rent due under the Lease as well as the ejection of the tenant form the premises.

ECF 69-1, pp. 12-13.

29-38. Included in the Petition was a request to stay execution of the March 24, 2022

Judgment pending resolution of the Petition to Strike. Id. at pp. 37-38. Plaintiff alleges

that Cohen “filed the Petition to Strike/Open with the state court Prothonotary, without

presenting the Petition in Motions Court or Ex Parte.” Id. at ¶ 53. Plaintiff also alleges

that the “Petition to Strike/Open did not include nor have attached a proposed Rule-to-

Show-Cause Order.” Id. at ¶ 54. On April 25, 2022, Cohen also filed “Defendants’

Answer to the Complaint with New Matter and Counterclaim.” Id. at ¶¶ 71-77. For the

next two months Cohen and Williams filed Answers and Replies. Id. at ¶¶ 60-62. On

September 22, 2022, Williams filed with the Prothonotary of the Court of Common Pleas

of Northampton County a Praecipe for Writ of Possession Upon a Confessed Judgment.

ECF 69-2, pp. 2-3. Plaintiff alleges that the “Praecipe for Writ of Possession did not

include a “Certification” Section pursuant to Pa.R.Civ.P. 2974.1 Praecipe for Writ of

Possession.” ECF 69 at ¶ 73.

On September 22, 2022, Prothonotary Ruggiero and Deputy Shoemaker, signed

the Writ directing Sheriff Johnston, to “deliver possession of 118 Northampton Street,

Easton, Pa.18042 to Northampton 120, LLC.” ECF 69-2, p. 6. On September 28, 2022,

Williams filed a “Certification Under Rule 2974.1 for Writ of Possession Upon a

Confessed Judgment,” certifying that “Notice pursuant to Rule 2973.2 has been served

at least 30 days prior to the filing of the Praecipe as evidenced by a Return of Service

filed of record (copy attached).” Id., p. 26.

On September 28, 2022, Sheriff Johnston issued a Sheriff’s Notice of

Possession, stating that the “premises located at KHANISA’S 118 NORTHAMPTON

STREET, EASTON, PA 18042 . . . . must be vacated by 10:00 a.m. on FRIDAY,

OCTOBER 28, 2022. Failure to comply may necessitate the removal of your belongings

at that time and at your expense.” ECF 69-2, p. 5. Plaintiff deemed this to be an “illegal

lockout.” ECF 69 at ⁋⁋ 78, 82, 87, 97-99.

The Sheriff’s Return of Service entry for September 28, 2022 states “Notified

Attorney/Plaintiff that possession has been scheduled for 10:00 a.m. on Friday, October

28, 2022. Notice of Possession e-mailed this date to SWilliams @ ww-legal.com.” ECF

69-3, p. 2. The entry for October 6, 2022 states “Sheriff Richard Johnston, In and of the

County of Northampton and being duly sworn according to law, deposes and says a

true and attested copy of the requested writ of possession were mailed via ordinary mail

to the within named defendant, Khanisa Darby t/a Khanisa’s, at 118 Northampton

Street, Easton, Pa. 18042.The Certificate of mailing herewith attached and made part of

this return.” Id. An entry for October 11, 2022 states “Deputy Kathy Nansteel, being duly

sworn according to law, deposes and says that the writ of possession, notice of

possession and legal description were posted upon the property located at 118

Northampton Street, Easton, Pa. 18042.” Id. In another entry for October 11, 2022,

Deputy Sheriff Nansteel swore that “the Writ of Execution and Notice were not served

on Khanisa Darby at 118 Northampton Street, Easton, Pa. [Khanisa Darby] was not

found at given address. Moved to new location 27 N. 7th Street, Allentown, Pa.” Id. On

October 28, 2022, Deputy Sheriff Nansteel swore that “the eviction was completed and

possession of the Property ….was delivered to the Plaintiff [Veronica Muniz, Community

Manager/Rock St. Gardens].” ECF 69-3, p. 3.

On October 27, 2022, Nelson filed a motion to withdraw as counsel for Plaintiff.

On November 17, 2022, the Common Pleas Court granted the motion to withdraw. On

January 26th, 2023, the Plaintiff, by email, informed Matthew B. Weisberg Esq., Gary

Schafkopf, Esq., and L. Anthony DiJiacomo, III Esq., of her receipt of a Notice of

Presentation and Motion to Compel Discovery Answers to be presented in Motions

Court on February 1st, 2023, by Williams. ECF 69 at ¶ 131. On January 30th, 2023,

Attorneys Weisberg, Schafkopf, and DiJiacomo entered their appearance on the docket

of the underlying confession of judgment action. Id. at ⁋ 132

On April 12th, 2023, the Motion for Sanctions was granted in favor of 120

Northampton, LLC based on Plaintiff’s alleged failure to respond to Defendant 120

Northampton’s motion to compel discovery. Id. at ¶165. On April 12, 2023, Weisberg,

Schafkopf, DiJiacomo presented a Motion for Leave to Withdraw from the case, which

was granted. Id. at ¶166. On April 12, 2023, Senior Judge Munley affirmatively

“terminated” Moving Defendants’ representation of Plaintiff on April 12, 2023 (as

opposed to simply granting leave to withdraw). On April 19, 2023, the law firm of

Defendant Zachary Zawatski entered their appearance on behalf of Plaintiff. On June

7th, 2023, Zawarski sent an email and letter informing the Plaintiff he was terminating

his representation and returned the Plaintiff’s retainer and invoice payments in the

amount of one thousand eight hundred seventy-five dollars ($1,875.00). Id. at ¶ 218. By

Order dated September 7, 2023, Judge Samuel P. Murray of the Court of Common

Pleas of Northampton County ordered that Plaintiff appear for her deposition by

Williams on October 2, 2023, and that the Clerk place this matter on the Non-Jury list for

December 4, 2023.

On October 6, 2023, Plaintiff appealed Judge Murray’s Order to the Superior

Court of Pennsylvania. On that same day, Plaintiff appealed the confession of judgment

to the Superior Court of Pennsylvania. ECF 69 at ¶ 260. On March 1, 2024, the

Superior Court quashed Plaintiff’s appeal from Judge Murray’s Order as interlocutory.

Id. at ¶ 261. On March 20, 2024, the Superior Court quashed the appeal from the

confession of judgment on the basis that it was untimely and improper because an

appeal does not properly lie from a confessed judgment. Id. at ¶ 261.

On April 1, 2024, Plaintiff filed a pro se “Petition to Strike Confession of

Judgment” in the Court of Common Pleas of Northampton County, arguing that since

the confessed judgment included an amount for accelerated rent and ejectment from

the possession or real property, the confession of judgment was void ab initio under

Pennsylvania law. Id. at ¶ 263. The Honorable Abraham P. Kassis responded to the

Petition by issuing a Rule to Show Cause. On April 19, 2024, Plaintiff filed a Notice of

Appeal from Judge Kassis’ Order to the Superior Court of Pennsylvania, claiming that

Judge Kassis should have simply ruled on Plaintiff’s Petition to Strike rather than issue

a Rule to Show Cause. On August 30, 2024, the Superior Court of Pennsylvania

quashed Plaintiff’s appeal from Judge Kassis’ April 1, 2024 Rule to Show Cause as

interlocutory.

On October 9, 2024, the Plaintiff filed this action. On October 10, 2024,

Defendant 120 Northampton, LLC filed a “Motion to Amend Money Judgment Amount

Entered by Confession Against Khanisa Darby t/a/ Khanisa’s on March 24, 2022.” In the

Court of Common Pleas of Northampton County. Id. at ¶ 273. The Motion to Amend

requested that the Common Pleas Court permit the Prothonotary “to ‘modify’ the

confessed judgment for money, lowering it from $116,247.54 to $4,798.09 ‘out of an

abundance of caution to ensure compliance with case law prohibiting confession of

judgment for both accelerated rent and for possession following a landlord’s recovery of

possession.’” Id. at ¶ 274.

On December 3, 2024, the Honorable Brian J. Panella of the Court of Common

Pleas of Northampton County denied the Plaintiff’s April 1, 2024 pro se Petition to Strike

the Confessed Judgment and granted 120 Northampton LLC’s Motion to Amend the

Money Judgment. Id. at ¶ 288. The Order specified that the amount of the confessed

judgment is amended and reduced from $116,247.54 to $4,798.09. Id. at ¶ 289.

According to Plaintiff, although both Orders were entered on the docket, the Index still

reflects the void amount of $116,247.54. Id. at ¶ 291. Plaintiff did not appeal either of

Judge Panella’s Orders to the Superior Court of Pennsylvania. It does not appear that

the Court of Common Pleas of Northampton County ever held a hearing or ruled on the

original Petition to strike the confessed judgment and request for a stay of execution of

the confessed judgment that was filed by Cohen on April 25, 2022.

COUNT I- FOURTH AND FOURTEENTH AMENDMENTS

Plaintiff brings Count One against all Defendants pursuant to 42 U.S.C. §1983,

alleging violations of the Fourth and Fourteenth Amendment as well as unlawful

deprivation of property. Specifically, Plaintiff alleges:

293. The Plaintiff has maintained since the commencement of

the underlying action that she did not voluntarily, intelligently,

nor knowingly waive her right to due process and hearing.

294. Defendants 120 Northampton, LLC, and Steven Todd

Williams, Esq., intentionally entered the void ab initio

confessed judgment, in a manner that is prohibited in

Pennsylvania, against the Plaintiff thereby invoking state

statute.

295. Defendant Samuel E. Cohen, Esq., intentionally filed the

Petition to Strike/Open without attaching and Presenting a

Rule to show cause as is required by Pennsylvania’s rules of

civil procedure and local rules, committing the first overt act in

the conspiracy to circumvent the hearing required after a

debtor responds timely to a confession of judgment.

296. Defendant Steven Todd Williams, Esq., intentionally

participated in and furthered the conspiracy when he broke

the procedural rules by filing an Answer to the petition without

being instructed to do so by the issuance of a Rule to Show

Cause signed by a Judge.

297. Defendant Williams intentionally and recklessly

continued to further the conspiracy by filing an Answer to the

Counter Claim and New Matter, to which the Gross McGinley

Defendants responded - also intentional and procedurally

improper.

298. Defendants Williams, 120 Northampton, LLC, and Borko

Milosev intentionally and overtly filed a procedurally improper

Praecipe for Writ of Possession, lacking the “Certification”

Section, with the intention of concealing from the record that

a Petition to Open or Strike the judgment had already been

filed, but a hearing had not been held.

299. The Defendant Prothonotaries intentionally accepted

Defendant Williams’ Answer to the Petition to Strike without a

Rule to Show to Cause Order on the docket, accepted

Defendant Williams’ Praecipe for Writ of Possession although

defective on its face, and issued a Writ of Possession, also

not substantially in the form required by the Rules of Civil

Procedure.

300. The Writ of Possession directed the Sheriff to take

possession of the subject premises and all of the Plaintiff’s

property inside, without the issuance of a writ of execution, or

possession order signed by a Judge, although they had

already accepted the timely filing of a Petition to Strike/Open

on the Plaintiff’s behalf.

301. The Northampton County Sheriffs intentionally enforced

the Writ of Possession without a writ of execution, returned

possession of the subject premises to a representative with

Defendant Post Road Management, LLC, and put an

additional lock on the door the Plaintiff did not have a key to.

302. The Plaintiff was entitled to the subject premises until

December 31st, 2026, by the Lease Amendment.

303. Defendant Constance K. Nelson, Esq., did not inform the

Plaintiff of the impending lockout, claimed not to have

received any prior notification, and attempted to “slip” a

fraudulent document titled “Certification” signed by Defendant

Steven Todd Williams claiming it was filed On September

28th, 2022, when the docket is completely void of this filing

and the copy she presented to the Plaintiff was not stamped

as filed by the Prothonotary.

304. Defendant Williams’ “Certification” document in

Defendant Nelson’s possession, contains a certification

section that is identical to the section that was missing from

Defendant William’s Praecipe for Writ of Possession pursuant

to Pa.R.Civ.P. 2974.1.

305. The certification on this document was also missing

paragraph five (¶5) of the required certification section, which

informs the reader that a petition to open or strike the

judgment was previously filed.

306. The Weisberg Law Defendants acted as subsequent

counsel for the Plaintiff after the unlawful lockout and also

intentionally failed to adjudicate the confessed judgment,

maliciously and egregiously lied and concealed the void ab

initio nature of the confessed judgment when asked,

stonewalled, and utilized delay and manipulation tactics, to

obstruct the Plaintiff’s right to a prompt post-seizure hearing.

307. Defendant Zachary Zawarski, Esq. intentionally utilized

delay tactics as well, maliciously concealed the void ab initio

nature of the confessed judgment when asked, presented the

Plaintiff with a fraudulent "Sheriff’s Notice of Possession”,

intentionally and maliciously told the Plaintiff Defendant

Steven Todd Williams Esq., had not submitted an Answer to

the Petition when he did, and egregiously pushed the Plaintiff

to conduct discovery before filing a Rule to Show Cause

against the applicable procedural rules, further obstructing the

Plaintiff’s right to a prompt post-seizure hearing.

308. The Defendant Matthew Deschler Esq., intentionally

furthered the conspiracy and obstructed the Plaintiff’s right to

a post-seizure hearing by moving the state court to vacate the

Rule to Show Cause Order issued on April 1st, 2024, moving

the court to give validity to the void ab initio judgment by

issuing a Judicial Case Assignment Order, and after finally

conceding that the manner in which the underlying confession

of judgment was entered was prohibited, again moved the

court to break procedural rules and substantive law

“amending” the judgment amount, removing the accelerated

rent amount, at which he succeeded.

309. The Defendants collectively unlawfully deprived the

Plaintiff of the subject premises and her personal property,

with the inherent power of the County Sheriff behind them,

pursuant to the void ab initio confessed judgement- without

the hearing on Petition to Strike/Open required by the Rules

of Civil Procedure after it is timely filed, violating the Plaintiff’s

right due process of law in violation of the Fourth and

Fourteenth Amendments to the Constitution of the United

States.

310. The Plaintiff was not served with nor was a writ of

execution entered on the docket before the Writ of Possession

was enforced.

311. The Defendants acted strategically and in concert

breaking Pennsylvania’s Rules of Civil Procedure to affect an

unlawful seizure of the Plaintiff’s leasehold and property in

violation of the Fourth and Fourteenth Amendments to the

Constitution of the United States as incorporated and applied

to the states by way of the Fourteenth Amendment to the

Constitution of the United States.

312. At all times relevant hereto, Defendants Prothonotary

Holly Ruggiero, Prothonotary Deputy Melissa Shoemaker,

Sheriff Deputy Kathleen A. Nansteel, and Sheriff Richard

Johnston acted pursuant to a policy or custom normally

utilized in Northampton County to assist creditors in depriving

debtors of personal property without court order, a writ of

execution, and without providing an opportunity for the debtor

to be heard as required by the Rules of Civil Procedure.

313. Defendants Borko Milosev, 120 Northampton, LLC,

Steven T. Williams, Esq., Law Office of Steven T. Williams,

LLC d/b/a Waldron & Williams, and Post Road Management,

LLC, were not authorized by Pennsylvania law to confess

judgement against the Plaintiff for accelerated rent and in

ejectment for possession of the subject premises, as such is

prohibited by law in Pennsylvania.

314. Defendants Prothonotary Holly Ruggiero lacked

authority, subject matter and personal jurisdiction to enter the

void confessed judgment against the Plaintiff in the

Northampton County Court of Common Pleas.

315. The Plaintiff still does not have possession of her

property nor the subject premises.

316. The applicable constitutional amendments were clearly

established at the time of the property deprivation.

317. All of the Defendant’s concerted actions amount to a

conspiracy, and are the direct and proximate cause of the

Plaintiff’s loss of her property and the subject premises.

318. At all times relevant hereto, the Defendants acted in

concert, egregiously, with malice, and reckless indifference

towards the Plaintiff’s federally protected rights.

319. The joint action of the private parties, attorneys, and state

officials’ abuse of state procedures was a direct and

proximate cause of the constitutional deprivation suffered by

the Plaintiff.

As part of her relief for Count One, Plaintiff asks the Court to: “(3) issue an injunction

directing Defendants to cease any enforcement of the void ab initio judgment amount of

$4,798.09, prohibit Defendants from engaging in any further unconstitutional conduct

including executing unlawful writs or judgments; (4) declare the confessed judgment

void ab initio and vacate it.” See Prayer for Relief, ECF 69, p. 50.

Several Defendants have moved to have Count One dismissed based on the

Rooker-Feldman doctrine. The Court agrees. A motion to dismiss pursuant to

the Rooker–Feldman doctrine is a challenge to the court's subject matter

jurisdiction. Singleton v. Collins, 513 Fed.Appx. 251, 252, (3d Cir. 2013). Where the

court lacks subject matter jurisdiction, it may dismiss the complaint pursuant to Fed. R.

Civ. P. 12(b)(1). Gary v. Braddock Cemetery, 517 F.3d 195, 203 (3d. Cir. 2008).

Challenges to subject matter jurisdiction may be facial or factual. Id. A facial attack

contests the sufficiency of the pleadings, whereas a factual attack contests the

sufficiency of jurisdictional facts. Id. An attack to subject matter jurisdiction based on

the Rooker–Feldman doctrine is a factual attack. Nev. First Fed., LLC v. Macciocca,

2015 WL 4461828, at *2 (E.D. Pa. July 21, 2015); McCurdy v. Esmonde, 2003 WL

223412, at *4 (E.D. Pa. Jan. 30, 2003). Thus, the court may weigh and consider

evidence outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176

(3d Cir. 2000). In addition, “no presumptive truthfulness attaches to plaintiff's

allegations.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.

1977).

The Rooker-Feldman doctrine precludes federal courts from asserting jurisdiction

over “cases brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284 (2005). A federal claim is barred by the Rooker-

Feldman doctrine when the claim was either “actually litigated in a state court prior to

the filing of the federal action” or “inextricably intertwined with the state adjudication

....” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). A federal claim is “inextricably

intertwined” with an issue adjudicated by a state court when “(1) the federal court must

determine that the state court judgment was erroneously entered in order to grant the

requested relief, or (2) the federal court must take an action that would negate the state

court's judgment.” In re Madera, 586 F.3d 228, 232 (3d Cir. 2009); see also In re

Knapper, 407 F.3d at 580 (a federal claim is inextricably intertwined with a prior state

court judgment when “federal relief can only be predicated upon a conviction that the

state court was wrong.”)

Our Court of Appeals has set forth four requirements for the Rooker-

Feldman doctrine to apply. These are: “(1) the federal plaintiff lost in state court; (2) the

plaintiff ‘complain[s] of injuries caused by [the] state-court judgments’; (3) those

judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting

the district court to review and reject the state judgments.” Great W. Mining & Min. Co.

v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (quoting Exxon Mobil Corp.,

544 U.S. at 284).

In addition, this Court has held that a “state court confessed judgment is a final

judgment covered by the Rooker-Feldman doctrine whether or not a petition to strike or

open has been filed in either state or federal court.” Complete Business Solutions

Group, Inc. v. Sunrooms America, Inc., 474 F. Supp. 3d 693, 694-95 (E.D. Pa. 2020);

see also Schraven v. Phelan Hallinan Diamond & Jones, LLP, No. 15-3397, 2016 WL

374729, at *2 (E.D. Pa. Feb. 1, 2016) (“As a starting point, the Rooker–

Feldman doctrine applies to all judgments by a state court, including ... judgments by

confession.... [C]onfessed judgments are treated by federal courts as judgments on the

merits.”) (citations omitted)3

3 Plaintiff cites to the Third Circuit’s decision in James v. Draper (In re James), 940 F.2d 46 (3d

Cir. 1991), wherein the Third Circuit referenced an exception to the Rooker-Feldman doctrine. .

that a federal bankruptcy court may intervene when the state proceedings are considered a legal

nullity and thus void ab initio. In re James, 940 F.2d at 52 . However, following In re James, the

Third Circuit in In re Knapper, 407 F.3d at 581 n.16 (3d Cir. 2005) (citations omitted) and Todd v.

United States Bank National Association, 685 F. App'x 103, 106 (3d Cir. 2017), held that the

Plaintiff is mounting a direct attack on what she believes to be an erroneous

state-court confessed judgment against her that was filed on March 24, 2022, before

this federal action was filed, and seeks relief that not only would require the Court to

revisit and reassess the merits of the underlying state-court confessed judgment but

also require the Court to expressly declare that the confessed judgment is void and

without effect. Accordingly, the relief sought by Plaintiff in the SAC is inextricably

intertwined with the underlying state-court action and, therefore, amounts to the

functional equivalent of an appeal from a final state-court judgment. as the judgment

has not been stricken or opened. Plaintiff’s claim in Count One for violation of the Fourth

and Fourteenth Amendments is, therefore, barred by the Rooker-Feldman doctrine.

If Plaintiff believes that the confession of judgment entered against her on March

24, 2022 is void ab initio, it was incumbent on her to challenge the state-court judgment

through that state-court system and, if unsuccessful, attempt to seek relief by writ of

certiorari from the United States Supreme Court. See D.C. Court of Appeals v.

Feldman, 460 U.S. 462, 486 (1983). The Court notes that Plaintiff did not take an

appeal to the Superior Court of Pennsylvania from Judge Panella’s December 3, 2024

Order denying Plaintiff’s April 1, 2024 pro se Petition to Strike the Confession of

Judgment.

Several Defendants have moved to dismiss the remaining claims for failure to

state a claim under Fed. R. Civ. P.12(b)(6). Under Rule 12(b)(6), the court must “accept

all factual allegations as true [and] construe the complaint in the light most favorable to

exception it referenced in In re James was actually dicta and refused to apply it. See also

Marshall v. Abdoun, 2023 WL 2588166 at * 7 (E.D. Pa. 2023).

the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002))

(internal quotation marks omitted). This Court construes pro se pleadings

liberally. See Higgs v. AG of the United States, 655 F.3d 333, 339 (3d Cir. 2011). Only if

“the ‘[f]actual allegations ... raise a right to relief above the speculative level’” has the

plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

540, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content

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

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). However, “the tenet

that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Id. (explaining that determining “whether a complaint

states a plausible claim for relief ... [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense”).

“[C]ourts must consider the complaint in its entirety, as well as other sources

courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,

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, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). See also Mayer v. Belichick, 605 F.3d

223, 230 (3d Cir. 2010) (“In deciding a Rule 12(b)(6) motion, a court must consider only

the complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the complainant's claims are based upon these

documents.”) Courts may also consider “an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based

on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192,

1196 (3d Cir. 1993). The defendant bears the burden of demonstrating that a plaintiff

has failed to state a claim upon which relief can be granted. See Hedges v. United

States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc.,

926 F.2d 1406, 1409 (3d Cir. 1991)).

COUNT II-CONSPIRACY

In Count II, Plaintiff asserts a claim against all Defendants for conspiracy

as follows:4

321. At all times relevant hereto, the Defendants Borko

Milosev, 120 Northampton, LLC, Post Road Management,

LLC, and Steven Todd Williams, Esq. by and through Waldron

& Williams, conspired with Defendants Samuel E. Cohen,

Esq., and Constance K. Nelson, Esq. of Gross McGinley, LLP,

to circumvent the hearing required by the Rules of Civil

Procedure governing confessions of judgment and

strategically and intentionally broke those same procedural

rules to successfully and unlawfully deprive the Plaintiff of her

personal property and the subject premises arbitrarily and

without notice.

322. Defendants Nelson self-verified the Petition to

Strike/Open, Defendant Cohen filed the Petition without

attaching a rule to show cause for proper adjudication, and

Defendant Williams filed an answer without a Rule to Show

Cause directing him to.

323. Defendants Williams and Nelson signed and filed a

stipulation to strike attorney’s fees in the underlying action

without the Plaintiff’s prior knowledge or consent.

4 Plaintiff appears to have brought Count II under Section 1983 as well. See ECF 69 at ⁋ 342 (“But for the

joint action of state officials … the conspiracy to violate the Plaintiff’s constitutional rights and

deprivation of property would have been wholly unsuccessful”) (emphasis added); Id. at ¶ 343

(Defendants “conspired to deprive the Plaintiff of her constitutional rights…”) (emphasis added); Id. at ¶

344 (Defendants acted with “deliberate disregard for the Plaintiff’s Constitutional Rights.”)(emphasis

added); Id. at ¶ 345 (Defendants acted to “cause the deprivation of the Plaintiff’s property in violation of

her Constitutional Rights) (emphasis added); and, Wherefore Clause for Count II (“… in conspiring to

violate Plaintiff’s rights under the Fourth and Fourteenth Amendments to the United States

Constitution”) (emphasis added).

324. Defendant Steven Todd Williams, Esq., conspired with

Prothonotary Holly Ruggiero, Deputy Prothonotary Melissa

Shoemaker, Deputy Sheriff Kathleen Nansteel, and Sheriff

Richard Johnston to unlawfully enforce the procedurally

insufficient Writ of Possession and Praecipe for Writ of

Possession, without a writ of execution, nor a Rule to Show

Cause Order on the docket, furthering the circumvention of

the hearing required by Pennsylvania’s Rules of Civil

Procedure.

325. Defendant Steven Todd Williams, Esq., stating he

“brought” a rule to show cause to bring forth the Petition to

Strike/Open filed by the Gross McGinley Defendants at the

September 7th, 2023 “Emergency” Motions hearing, was in

furtherance of the scheme to conceal the perverted

procedural history, and to obstruct the Plaintiff’s right, and

done with the intent to push forth adjudication of the severely

inadequate Petition to Strike/Open.

326. Defendant Constance K. Nelson, Esq., conspired with

Defendant Steven Todd Williams, Esq., to cover up the initial

conspiracy when she attempted to “slip” the “Cerfication”

document signed by Defendant Williams in her proposed

Petition to Set Aside the Judgment falsely claiming it had been

filed on September 28th, 2022, although it had not been time-

stamped as filed, nor entered on the docket.

327. Defendants Matthew B. Weisberg, Esq., Gary Schafkopf,

Esq., and L. Anthony DiJiacomo, III, Esq., intentionally

furthered the initial conspiracy by conspiring with Defendant

Steven Todd Williams, Esq. to strategically obstruct the

Plaintiff’s right to a prompt post-seizure hearing egregiously

utilizing dilatory and manipulative tactics to maintain the

successful deprivation of the Plaintiff’s property, intentionally

lied about and concealed the void ab initio nature of the

judgment when asked, did not attend a motion to compel

hearing, failed to adjudicate the confession of judgment and

gained the Plaintiff sanctions in excess of seven hundred

dollars at the same motions court hearing held to withdraw

their representation.

328. Defendant Zachary Zawarski, Esq., furthered the initial

conspiracy in collusion with Defendant Steven Todd Williams,

Esq., by; (1) concealing the void ab initio nature of the

confession of judgment when specifically asked; (2) producing

a copy of the fraudulent Sheriff’s Notice of Possession

addressed to a different client of his in an attempt to convince

the Plaintiff the seizure was lawful; (3) repeatedly tried to

persuade the Plaintiff to conduct discovery before presenting

a rule-to-show-cause as a dilatory tactic designed to exhaust

the Plaintiff’s financial resources before she could secure a

hearing with a Judge, and (4) attempted to convince the

Plaintiff that Defendant Williams did not file an Answer to the

Petition to Strike with the purpose of deterring the Plaintiff

from understanding that a Rule to Show Cause should have

been issued before a response, although he had already

confirmed by email that Defendant Williams did indeed file an

Answer.

329. Defendant Matthew J. Deschler, Esq., began

representing Defendant 120 Northampton, LLC as lead co-

counsel with Defendant Williams

330.The Plaintiff’s Petition to Strike the Void Judgment was

already filed when Defendant Deschler’s representation

began.

331. Defendant Deschler was aware of the authorities cited

making it the court’s duty to strike the void judgment, however

he attempted to obstruct the Plaintiff’s right to due process by

moving to vacate the Rule to Show Cause Order, attempting

to schedule the case for judicial case assignment, and moving

to have the Petition to Strike/Open filed by the Gross

McGinley Defendants put forth over the Plaintiff’s pro se

Petition to Strike.

332. When his repeated attempts failed due to the Plaintiff’s

contestation, he finally conceded that the judgment was

prohibited as entered, but intentionally and recklessly drafted

a motion to amend the judgment with the intention of its

succession breaking the procedural rules, to create the

illusion that the gross reduction of the judgment amount was

done at his hand, and granted to he and his client’s benefit.

333. Defendant Deschler joined the second half of the

conspiracy, with the objective of furthering the scheme to

obstruct the Plaintiff’s right to due process, and to further

aggravate any redress the Plaintiff may be entitled to in the

District Courts.

334. The Defendants violated many of Pennsylvania’s Rules

of Civil Procedure in order to carry out and maintain the

successful deprivation of the Plaintiff’s rights to due process,

and her property.

335. The initial conspiracy succeeded in unlawfully depriving

the Plaintiff of her property, and right to due process, the

second conspiracy obstructed the Plaintiff’s right to a prompt

post-seizure hearing, aggravating any possibility of redress.

336. Defendants Borko Milosev, 120 Northampton, LLC,

Steven Todd Williams, Esq., Law Office of Steven T. Williams,

LLC d/b/a Waldron & Williams, and Post Road Management,

LLC maliciously and knowingly entered the void and

excessive judgment against the Plaintiff for money including

accelerated rent and in ejectment for possession of real

property, with the intention to intimidate the Plaintiff into

abandoning the subject premises, and to prevent her from

posting bond in the Northampton County Court of Common

Pleas.

337. Defendants Samuel E. Cohen, Esq., Constance K.

Nelson, Esq., and Gross McGinley, LLP, as prior counsel for

the Plaintiff maliciously, and intently failed to present the

timely filed Petition to Strike/Open in motions court for proper

adjudication of the Stay of Execution request, thereby leaving

the Plaintiff unknowingly open to ejectment, collections, and

garnishment.

338. Defendants Zachary Zawarski, Esq., by and through

Zachary Zawarski, LLC further enabled the scheme to

circumvent the adjudication process by making fraudulent

misrepresentations to the Plaintiff about the process,

persuaded the Plaintiff to pay the unlawful sanctions,

presented fraudulent documents to convince the Plaintiff her

rights were not violated, and concealed the void nature of the

confessed judgment.

339. Defendants 120 Northampton, LLC, Steven Todd

Williams, Esq., Law Office of Steven T. Williams, LLC by and

through Waldron & Williams, and Post Road Management,

LLC, were fully aware of the timely filing of Petition to

Strike/Open including the request for a Stay of Execution, as

evidenced by the Answer to the Petition timely filed and

entered onto the docket.

340. Defendants 120 Northampton, LLC, Steven Todd

Williams, Esq., Law Office of Steven T. Williams, LLC by and

through Waldron & Williams, and Post Road Management,

LLC possessed the ability to compel Defendants Samuel E.

Cohen, Esq., Constance K. Nelson, Esq., and Gross

McGinley, LLP, to present the Petition to Strike/Open for

proper adjudication to adhere to state law procedures and to

prevent the violation of the Plaintiff’s constitutional rights but,

intentionally failed to do so.

341. Defendant Steven Todd Williams, Esq., Law Office of

Steven T. Williams, LLC d/b/a Waldron & Williams, Samuel E.

Cohen, Esq., Constance K. Nelson, Esq., Gross McGinley,

LLP, Matthew B. Weisberg Esq., Gary Schafkopf, Esq., L.

Anthony DiJiacomo, III Esq., and Weisberg Law, P.C., are all

attorneys and firms licensed to represent clients in

Pennsylvania, are subject to Pennsylvania’s Rules of

Professional Conduct, and reasonably so, are believed to be

intelligent in the matters of clients they choose to represent.

342. But for the joint action of state officials including

Prothonotary Holly Ruggiero, Deputy Prothonotary Melissa

Shoemaker, Deputy Sheriff Kathleen Nansteel, and Sheriff

Richard Johnston, the conspiracy to violate the Plaintiff’s

constitutional rights and deprivation of property would have

been wholly unsuccessful.

343. Considering the facts stated, it is reasonable to believe

that all of the Defendants, led by Defendants Borko Milosev

and Steven Todd Williams, Esq., conspired to deprive the

Plaintiff of her constitutional rights, to achieve the arbitrary

and permanent ejectment of the Plaintiff, and to intimidate her

with the unlawful judgment amount of $116,247.54.

344. At all times relevant, the Defendants acted with intent,

malice, recklessness, and a deliberate disregard for the

Plaintiff’s Constitutional Rights.

345. All of the Defendant’s concerted actions were the direct

and proximate cause of the deprivation of the Plaintiff’s

property in violation of her Constitutional Rights.

To state a conspiracy claim under 42 U.S.C. § 1983, Plaintiff must first have

a claim of an underlying constitutional injury. Durham v. Dep't of Corrections, 173 F.

App'x. 154, 156 (3d Cir. 2006); Dykes v. Southeastern Pa. Transp. Auth., 68 F.3d 1564,

1570 (3d Cir.1995); Holt Cargo Sys., Inc. v. Delaware River Port Auth., 20 F. Supp. 2d

803, 843 (E.D. Pa. 1998), aff'd, 165 F.3d 242 (3d Cir. 1999). Since Plaintiff’s underlying

federal constitutional claim under the Fourth and Fourteenth Amendments in Count One

has already been dismissed pursuant to the Rooker-Feldman doctrine, Plaintiff’s

conspiracy claim under 42 U.S.C. § 1983 fails as well.

Even if Plaintiff did successfully plead a claim for an underlying constitutional

injury, her conspiracy claim fails on the merits. “To prevail on a conspiracy claim

under § 1983, a plaintiff must prove that persons acting under color of state law reached

an understanding to deprive him of his constitutional rights.” Jutrowski v. Township of

Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (internal quotation marks and citation

omitted). This requires that the state actors took “concerted action” based on an

“agreement” to deprive the plaintiff of his constitutional rights, and that there was an

actual underlying constitutional violation of the plaintiff's rights. Id. at 295.

“Specific allegations of an agreement to carry out the alleged chain of events is

essential in stating a claim for conspiracy.” Rosembert v. Borough of E. Lansdowne, 14

F. Supp. 3d 631, 648 (E.D. Pa. 2014) (citing Spencer v. Steinman, 968 F.Supp. 1011,

1020 (E.D.Pa.1997). “It is not enough that the end result of the parties' independent

conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in

conscious parallelism.” Id. However, simply “[s]tating that the defendants ‘conspired’

and ‘acted in concert’ is not equivalent to pleading a conspiracy with sufficient factual

matter to state a plausible claim upon which relief can be granted.” Schneller v.

Philadelphia Newspapers Inc., 577 F. App'x 139, 143 (3d Cir. 2014) (per curiam).

Putting aside the issue of whether all the named Defendants, particularly the

private law firms, are state actors, Plaintiff has failed to allege the existence of an actual

agreement or meeting of the minds among the Defendants to take the actions Plaintiff

claims caused her injuries. At best, Plaintiff has alleged a series of independent actions

taken by 21 Defendants at different points in time that allegedly resulted in violations of

her constitutional rights. See Rosembert, 14 F. Supp. 3d at 648. The Alleged actions of

the Defendants appear to be not the result of a conspiracy but the result of zealous

representation of their respective clients. For these reasons, Plaintiff’s conspiracy claim

is dismissed.

COUNT V-EQUAL PROTECTION UNDER THE 14TH AMENDMENT

Plaintiff’s remaining federal claim is brought against Deputy Sheriff Nansteel,

Sheriff Johnston, Prothonotary Ruggiero, Prothonotary Deputy Shoemaker, claiming

these Defendants violated the Equal Protection Clause of the Fourteenth Amendment in

the following particulars:

386. The Defendants are officials of Northampton County by

and through the Northampton County Court of Common

Pleas, with more than twenty (20) years of experience

combined in civil matters filed in the trial court.

387. Defendants Kathleen A. Nansteel and Sheriff Richard

Johnston, have ample experience in the service of writs and

attachment procedures in Northampton County, and

maliciously, intently, and recklessly attached the Plaintiff’s

property unlawfully without a writ of execution as required by

federal law, state law, and local rules.

388. Defendants Prothonotary Holly Ruggiero, and

Prothonotary Deputy Melissa Shoemaker lacked personal

and subject matter jurisdiction to enter judgment against the

Plaintiff and to issue a writ of possession for the Plaintiff’s

property.

389. The Defendants in their capacities as officials of

Northampton County, acted under color of state law in

executing and enforcing a void ab initio judgment against the

Plaintiff without a lawful basis.

390. The actions of the defendants in executing the judgment

and taking the Plaintiff’s property were carried out in a manner

that discriminated against the Plaintiff and denied her equal

protection under the law.

391. Specifically, the Defendants treated the Plaintiff

differently from other individuals similarly situated who had not

experienced such unlawful actions without a rational basis for

such differential treatment.

392. A search of the Confession of Judgment actions brought

in Northampton County Court of Common Pleas, reveal that

every single time a Praecipe for Writ of Possession was filed,

it included a “Certification” Section.

393. The Defendant Prothonotaries routinely deny filings for

facial defects.

394. Defendant Steven Todd Williams Esq.’s filings were

facially defective and did not comply with Pennsylvania’s

Rules of Civil Procedure, including the Writ of Possession and

Praecipe.

395. The search also revealed that enforcement of confessed

judgments for money where the personal property of a

Defendant debtor was levied upon, was commenced by a Writ

of Execution.

396. As a direct and proximate result of the Defendants

actions, the Plaintiff suffered significant harm, including the

loss of her commercial leasehold, personal property, business

income, and other non-economic damages.

397. The Defendant’s actions constitute a willful and

intentional violation of the Plaintiff’s rights under the Equal

Protection Clause to the Fourteenth Amendment.

To the extent Plaintiff is suing Prothonotary Ruggiero and Prothonotary Deputy

Shoemaker in their individual capacities, both are entitled to quasi-judicial immunity5 for

the ministerial acts of executing a facially valid Confession of Judgment and processing

a facially valid Writ of Possession. See Nemeth v. Office of Clerk of Superior Court of

New Jersey, 837 Fed. App’x 924, 928 (3d Cir. 2020; Villareal v. New Jersey, 803 Fed.

App’x 583, 588 (3d Cir. 2020); Gallas v. Supreme Court of Pa., 211 F.3d 760, 772-73

(3d Cir. 2000). Any legal questions about the actual legal validity of the Confession of

Judgment and Writ of Possession must be resolved by the courts—not the Prothonotary

or the parties.

Plaintiff’s allegations that “[a] search of the Confession of Judgment actions

brought in Northampton County Court of Common Pleas, reveal that every single time a

Praecipe for Writ of Possession was filed, it included a “Certification” Section,” that “[t]he

Defendant Prothonotaries routinely deny filings for facial defects,” ECF 69 at ¶¶ 392-

393, and that “[t]he search also revealed that enforcement of confessed judgments for

money where the personal property of a Defendant debtor was levied upon, was

commenced by a Writ of Execution” id. at ¶ 395, constitute conclusory statements that

are insufficient to allege that these defendants were not acting to lawfully process an

authorized confession of judgment.

To the extent. Plaintiff is suing the Prothonotary and Deputy Prothonotary in their

official capacities, such claims must be dismissed pursuant to the Eleventh Amendment

since these court officials are considered as arms of the Commonwealth of

Pennsylvania. See Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193,

5

198 (3d Cir. 2008). This immunity extends to Plaintiff’s pendent state-law claims as

well. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984).

Sheriff Johnston and Deputy Sheriff Nansteel are similarly entitled to quasi-

judicial immunity from claims brought against them in their individual capacities. See

Villareal, 803 Fed. App’x at 588. Plaintiff makes no allegations that Sheriff Johnston nor

Deputy Sheriff Nansteel in executing a facially valid Writ of Possession at the Property

were at any time taking discretionary actions acting outside of their ministerial duties.

Although the Plaintiff alleges that Sheriff Johnston and Deputy Sheriff Nansteel are

liable because the Confession of Judgment was allegedly void ab initio, she does not

allege any facts suggesting that the Sheriff and Deputy Sheriff had reason to question

the validity of the Confession of Judgment or Writ of Possession. The Sheriff and his

deputies are not required to review the docket or verify the accuracy of the damages

calculation in an underlying Confession of Judgment.

Plaintiff’s claim against Sheriff Johnston and Deputy Sheriff Nansteel in

their official capacities will be dismissed because, as explained above, a claim against

an official in his official capacity is considered a claim against the official’s office, i.e.

Northampton County Sheriff's Office. See Will v. Michigan Dept. of State Police, 491

U.S. 58, 71 (1989). As such, it is no different from a suit against the State itself. Id.

Because local police departments are not “persons” who can be sued under §

1983, see Johnson v. City of Erie, Pa., 834 F.Supp. 873, 878–79 (E.D. Pa. 1993),

Plaintiff can only assert this claim against the municipality, i.e. Northampton County.

However, Plaintiff is not permitted to bring claims against the County on a respondeat

superior theory. Rather, a municipality can only be liable under § 1983 if the alleged

unconstitutional conduct either “implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body's officers” or is

“visited pursuant to governmental ‘custom’ even though such a custom has not received

formal approval through the body's official decision-making channels.” Monell, v.

Department of Social Services of City of New York, 436 U.S. 658, 690–91 (1978). “[I]t is

when execution of a government's policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.” Jiminez v. All

American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). “A plaintiff must identify

the challenged policy, attribute it to the [municipality] itself, and show a causal link

between execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

Plaintiff alleges that Prothonotary Ruggiero, Prothonotary Deputy Shoemaker,

Sheriff Deputy Nansteel, and Sheriff Johnston “acted pursuant to a policy or custom

normally utilized in Northampton County to assist creditors in depriving debtors of

personal property without court order, a writ of execution, and without providing an

opportunity for the debtor to be heard as required by the Rules of Civil Procedure.” ECF

69 at ¶ 312. Even accepting as true, as the Court must, Plaintiff’s version of the events

that transpired that give rise to this action, it simply is not plausible that the Prothonotary

and Sheriff’s Office maintained an actual policy or custom of assisting creditors in

depriving debtors of personal property without court order, a writ of execution, and

without providing an opportunity for the debtor to be heard. Therefore, Plaintiff’s claims

against the Sheriff and Deputy Sheriff in their official capacities will be dismissed with

prejudice.

The remainder of the SAC contains state law claims that are brought pursuant to

the Court’s diversity jurisdiction.

COUNT III-FRAUDULENT MISREPRESENTATION

In Count III, Plaintiff asserts a claim against all Defendants for fraudulent

misrepresentation as follows:

347. Defendants 120 Northampton, LLC, Steven Todd

Williams, Esq., Law Office of Steven T. Williams, LLC d/b/a

Waldron & Williams, and Post Road Management, LLC,

represented to the court that they were entitled to confess

judgment against Plaintiff for money including accelerated

rent and in ejectment under the terms of the Lease

Agreement.

348. The Defendants Steven Todd Williams, Esq., Law Office

of Steven T. Williams, LLC, Waldron & Williams, as attorneys,

and officers of the court, knew and/or were reasonably

expected to know that confessing judgment for accelerated

rent and ejectment is prohibited under Pennsylvania law, and

that such a judgment was void ab initio due to the court’s lack

of subject matter and personal jurisdiction.

349. Defendant Steven Todd Williams, Esq., provided

Defendants Samuel E. Cohen, Esq. and Constance K.

Nelson, Esq., with the “Certification” document Defendant

Nelson attempted to insert onto the record, fraudulently

claiming it had been filed, when it had not, with the intention

of covering up Defendant William’s procedurally improper

Praecipe for Writ of Possession.

350. Defendants Borko Milosev, 120 Northampton, LLC,

Steven Todd Williams, Esq., Law Office of Steven T. Williams,

LLC d/b/a Waldron & Williams, and Post Road Management,

LLC, attached the Plaintiff’s commercial leasehold and

personal property to a writ of possession, without a writ of

execution.

351. Defendant Sheriff Deputy Kathleen Nansteel taped a

fraudulent “Sheriff Notice” to the door of the leasehold with an

inoperable phone number for the Northampton County Sheriff,

purporting to have the same effect as a writ of execution, and

preventing the Plaintiff from alerting anyone else at the

Sheriff’s Department.

352. Defendants Steven T. Williams, Esq., 120 Northampton,

LLC, Borko Milosev, and Sheriff Deputy Kathleen Nansteel

fraudulently claimed to have posted this “Sheriff Notice” to the

door of the Plaintiff’s commercial leasehold October 11th,

2022.

353. Sheriff Richard Johnston fraudulently claimed to have

mailed the Defendant a copy of the “Notice of Possession,

Writ of Possession, and Legal Description” without mailing a

copy to the attorney of record, on October 6th, 2023, although

there is no docketed return on this date nor a certificate of

mailing attached as claimed on the return.

354. Defendant Sheriff Deputy Kathleen A. Nansteel did not

docket the sheriff return immediately after possession was

returned to Defendant 120 Northampton, LLC, as required by

Pennsylvania’s Rules of Civil Procedure; the return was not

docketed until February 17th, 2023, four months later.

355. Defendants Constance K. Nelson, Esq., and Samuel E.

Cohen, Esq., by and through Gross McGinley, LLP, claimed

to “not know” what happened or how possession was taken

with a “stay filed”.

356. Defendants Constance K. Nelson Esq., and Samuel E.

Cohen, Esq., led the Plaintiff to believe the proper

adjudication of the Petition to Strike/Open had begun, and

fraudulently represented that a stay “filed” had the same effect

as a stay granted by a judge in the trial courts.

357. Defendants Matthew B. Weisberg Esq., Gary Schafkopf,

Esq., L. Anthony DiJiacomo, III Esq., and Weisberg Law, P.C.,

furthered the conspiracy, by fraudulently claiming they “did not

know” what was done, not moving for proper adjudication of

the Petition to Strike/Open, or moving to disqualify the

inadequate Petition to Strike/Open due to attorney verification

and presenting a new Petition to Strike asserting the void

nature of the excessive judgment, and using manipulation and

dilatory tactics to harm the Plaintiff with the intent of furthering

the conspiracy to maintain the deprivation.

358. On February 8th, 2023, in an email to Defendants

Matthew B. Weisberg Esq., Gary Schafkopf, Esq., L. Anthony

DiJiacomo, III Esq., and Weisberg Law P.C., the Plaintiff

specifically questioned the validity of Defendant 120

Northampton, LLC’s entitlement to “property and accelerated

rent” to which she was told by the Defendant L. Anthony

DiJiacomo, III Esq. she was wrong.

359. Similarly, Defendant Zachary Zawarski ignored the

Plaintiff’s questions about the prohibition of double recovery,

fraudulently told the Plaintiff Defendant Williams did not file an

Answer to the Petition to Strike/Open in an attempt to conceal

the overt act, and fraudulently told the Plaintiff discovery

needed to be conducted before a proposed Rule to Show

Cause order was presented, further obstructing the Plaintiff’s

right to a prompt post-deprivation hearing. Defendant

Zawarski also presented the Plaintiff with a replica of the

fraudulent “Sheriff’s Notice of Possession” addressed to a

different client, attempting to convince the Plaintiff the

documents were valid.

361. On September 7th, 2023, Defendant Steven Todd

Williams, Esq., fraudulently presented to the court that he

could himself bring forth a rule to show cause on the Plaintiff’s

behalf to present Petition for scheduling that was not before

the court at that time.

362. Defendant Williams made knowingly false statements

about the Plaintiff’s character stating that she had gone

through “seven” attorneys, and that she had significant issues

with each of the co-conspirators to persuade the court allow

the Petition to Strike/Open filed by the Gross McGinley

Defendants to be adjudicated, as opposed to the Plaintiff’s

new Petition highlighting their collective failures.

363. Defendant Matthew J. Deschler, Esq., repeatedly and

fraudulently attempted [to] represent to the state court that the

confessed judgment was valid, although he was aware of its’

void nature.

364. Defendant Deschler filed a Motion to Amend the Money

Judgment fraudulently presenting to the Plaintiff and the state-

court that a confession of judgment is not exhausted once

utilized for a debt, that an amendment of the judgment can be

effected by the Prothonotary without filing for leave to amend

the Confession of Judgment Complaint, and that the state

court had subject matter jurisdiction to make such orders.

365. Defendant Deschler attempted to use this motion as a

catalyst in a scheme to fraudulently induce the Plaintiff to

abandon the nine o’clock (9:00) a.m. Call for the argument list

on October 15th, 2024, in an attempt to prevent argument on

the Plaintiff’s Petition to Strike. The Plaintiff justifiably relied

on the validity of the trial court’s judgment and the

representations made by all of the Defendants, initially

believing them to be lawful and enforceable, causing the

Plaintiff tremendous stress, anxiety, with the unexpected loss

of her property and the mental anguish she and her family

suffered because of the conspiracy.

367. As a direct and proximate result of the Plaintiff’s initial

reliance on the Defendant’s fraudulent representations, the

Plaintiff has suffered and continues to suffer substantial

damages, including but not limited to financial losses from the

unlawful judgment, the loss of business income, the costs of

defending against the void ab initio judgment, mental and

emotional distress from the manipulation tactics utilized by the

Defendants, attempting to learn and navigate complex

litigation and the inability to find competent, uncompromised

legal representation.

Under Pennsylvania law, in order to state a claim for fraudulent

misrepresentation, a plaintiff must establish each of the following elements by clear and

convincing evidence: “(1) a representation; (2) which is material to the transaction at

hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is

true or false; (4) with the intent of misleading another into relying on it; (5) justifiable

reliance on the misrepresentation; and (6) resulting injury proximately caused the

reliance.” Porreco v. Porreco, 571 Pa. 61, 811 A.2d 566, 570 (2002) (citations omitted).

“In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge, and other

conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b). Rule

9(b) requires the following:

[A] plaintiff alleging fraud must state the circumstances of the

alleged fraud with sufficient particularity to place the

defendant on notice of the precise misconduct with which it is

charged.To satisfy this standard, the plaintiff must plead or

allege the date, time and place of the alleged fraud or

otherwise inject precision or some measure of substantiation

into a fraud allegation.

Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.2007) (internal quotation and

editorial marks and citation removed). “The purpose of Rule 9(b) is to provide a

defendant with notice of the precise misconduct with which he or she is charged and to

prevent false or unsubstantiated charges.” Cooper v. Broadspire Servs., Inc., No. Civ.

A. 04–5289, 2005 WL 1712390, at *5 (E.D.Pa. July 20, 2005).

In Count III, Plaintiff has basically taken the allegations from Counts I and II and

inserted the word “fraudulently” before claimed action by the Defendants. Plaintiff failed

to identify with particularity any representation of fact or concealment of fact. ECF Doc.

69, ⁋⁋ 347-367. Second, there is no “transaction at hand” for which the representation

could be material to. Third, there are no “well-pled facts” that any of the Defendants

knew that falsity of any representation of fact made by them, let alone the failure to

identify the specific representation of fact). Fourth, there are no “well-pled facts” that any

of the Defendants intended to mislead Plaintiff into reliance on an unspecified statement

of fact. Fifth, there are no “well-pled facts” that Plaintiff justifiably relied upon any

misrepresentation of fact made by any Defendant. Sixth, there are no “well-pled facts”

that Plaintiff suffered any harm as a result of any representation of fact made by any

Defendant. Accordingly. Count III will be dismissed as to all Defendants with the

exception of Defendants Cohen, Nelson and the Gross McKinley law firm.

COUNT IV-WRONGFUL USE OF CIVIL PROCEEDINGS

In Count IV, Plaintiff asserts a claim against Defendants 120 Northampton, LLC,

Post Road Management, LLC, Borko Milosev, Steven T. Williams, Esq., Steven

Williams, LLC, and Waldron & Williams for wrongful use of civil proceedings under

Pennsylvania’s Dragonetti Act,6 42 Pa. Cons. Stat. Ann. § 8351 et seq.

In order to state a claim for wrongful use of civil proceedings under the

Dragonetti Act, Plaintiff must demonstrate: “(1) the underlying civil proceedings were

terminated in favor of the plaintiff, (2) the defendant caused these proceedings to be

instituted without probable cause or with gross negligence, and (3) the proceedings

were instituted primarily for an improper purpose.” Pendergrass v. Pendergrass, 518 F.

Supp. 3d 839, 847 (E.D. Pa. 2021).

Here, the underlying civil proceedings, to the extent they have been terminated at

all, were not terminated in favor of Plaintiff. Although Plaintiff was successful in

modifying the amount of the confessed judgment, the confessed judgment for her non-

payment of rent in the amount of $4,798.09 still remains against Plaintiff. Therefore,

Plaintiff has failed to satisfy the first element of a claim for wrongful use of civil

proceedings under the Dragonetti Act and Count IV will be dismissed.

COUNT VI-TRESPASS

In Count VI, Plaintiff asserts a claim against Sheriff Johnston and Deputy Sheriff

Nansteel for trespass as follows:

6 The Dragonetti Act codified the common law tort of wrongful use of civil proceedings.

399. Defendant 120 Northampton, LLC’s actions on October

28th, 2022, included directing the county sheriff to execute

against the subject premises in pursuit of the void ab initio

confessed judgment, and the Sheriff’s subsequent entry onto

the premises, locking the Plaintiff out, constitute an unlawful

and unauthorized entry onto the Plaintiff’s property, thereby

committing trespass.

400. The Defendants had no legal justification to enter onto

the Plaintiff’s property, as the underlying confessed judgment

that purported to authorize such entry was void ab initio due

to the prothonotary’s lack of subject matter and personal

jurisdiction over the void judgment.

401. Defendant Deputy Kathleen A. Nansteel was authorized

by Defendant Sheriff Richard Johnston to enforce the Writ of

Possession although they were both aware the Writ of

Possession was not in compliance with the rules of civil

procedure, and that no writ of execution had been filed.

As discussed, supra, Sheriffs enjoy quasi-immunity when they act in either

a ministerial capacity or pursuant to the orders of a judge and not in a discretionary

manner. Sheriff Johnston and Deputy Sheriff Nansteel were merely carrying out the

duty given to them by the courts, when they seized the Property pursuant to a facially

valid Writ of Possession. Therefore, Sheriff Johnston and Deputy Sheriff Nansteel are

entitled quasi-judicial immunity from Plaintiff’s claim for trespass and Count VI is

dismissed.

COUNT VIII-CONVERSION

In Count VIII, Plaintiff asserts a claim against Defendants 120 Northampton, LLC,

Borko Milosev, Post Road Management, LLC for conversion as follows:

412. Without the Plaintiffs consent, nor jurisdiction, the

Defendants acted in concert, and under color of law to

unlawfully and intently deprive the Plaintiff of her right to the

subject premises, and all of her property contained within,

including restaurant equipment, personal property, and all

tenant improvements.

413. The Plaintiff was entitled to the right to possession of the

subject premises at the time of seizure, had not abandoned

the premises nor her property, and at all times relevant, was

represented by Defendants Constance K. Nelson, Esq.,

Samuel E. Cohen, Esq., by and through Gross McGinley, LLP.

414. Defendants 120 Northampton, LLC, Borko Milosev, Post

Road Management, LLC, Steven T. Williams, Esq., Law

Office of Steven T. Williams, LLC by and through Waldron &

Williams, attempted to intimidate and fraudulently induce the

Plaintiff into removing her personal property and equipment

within ten days after October 28th, 202[2], with an unlawful

ten day abandoned property notice.

415. Defendants 120 Northampton, LLC, Borko Milosev, Post

Road Management, LLC, Steven T. Williams, Esq., Law

Office of Steven T. Williams, LLC d/b/a Waldron & Williams,

Constance K. Nelson, Esq., and Samuel E. Cohen, Esq.,

acted in concert, to continue the deprivation of the Plaintiff’s

possession of the property by repeatedly circumventing

adjudication as opposed to returning possession of the

premises to the Plaintiff.

416. The Plaintiff was without means nor a suitable alternate

location for the property which included restaurant equipment,

furniture, electronics, oversized ornate decorations, and

tenant improvements.

417. Defendants 120 Northampton, LLC, Borko Milosev and

Post Road Management, LLC have since, re-let the subject

premises to a new tenant, a bakery, “Cake and Corolla”, who

is currently utilizing the Plaintiffs tenant improvements,

furnishings, and equipment.

418. The Northampton County Sheriff’s unlawful attachment

and execution pursuant to the void confessed judgment,

intentionally took possession of the Plaintiff’s property without

consent, and asserted control over the Plaintiff’s property

giving it to Post Road Management, LLC and 120

Northampton, LLC, who maintained their control.

419. The Defendants lacked legal authority to seize the

Plaintiff’s property, and their actions constituted a wrongful

taking.

420. At all times relevant hereto, the Defendants acted in

retaliation with malice, intent, recklessness, and total

disregard for the Plaintiff’s constitutional rights, and

entitlement to the subject premises including the Plaintiff’s

property held inside.

421. As a direct and proximate result of the Defendant’s

wrongful conversion of Plaintiff’s property, Plaintiff has

suffered damages, including but not limited to the loss of the

value of the property, the cost of replacing or restoring the

property, and emotional distress.

“Conversion is defined as the deprivation of another's right of property in, or use

or possession of, a chattel, or other interference therewith, without the owner's consent

and without lawful justification. When such an act occurs, the plaintiff may bring suit if

he had an immediate right to possession of the chattel at the time it was converted.”

Spector Gadon & Rosen, P.C. v. Rudinski, Orso & Lynch, 231 A.3d 923, 925 (Pa.

Super. 2020) (citation omitted). Conversion may be committed by:

(a) Acquiring possession of the goods, with an intent to assert

a right to them which is in fact adverse to that of the owner[;]

(b) Transferring the goods in a manner which deprives the

owner of control[;] (c) Unreasonably withholding possession

from one who has the right to it[; or] (d) Seriously damaging

or misusing the chattel in defiance of the owner's

rights. Prosser, Torts, § 15 (2d ed. 1955).

Norriton E. Realty Corp. v. Cent.-Penn Nat'l Bank, 254 A.2d 637, 638 (Pa.

1969) (quotation marks omitted).

With respect to a tenant's property that remains on leased premises, the Superior

Court of Pennsylvania has stated:

As a general rule, a tenant does not forfeit or lose title to his

personal property by neglecting to remove it from the leased

premises after the termination of the lease.

This is so even if the tenant fails to remove his personalty

within a reasonable time after the expiration of the lease. 49

Am.Jur.2d, Landlord and Tenant, § 1014. Any retention, use

or disposal of the tenant's property by the landlord, or any

other exercise of dominion over it to the exclusion of the rights

of the tenant, constitutes a conversion of

the tenant's property by the landlord.

Bednar v. Marino, 646 A.2d 573, 577-78 (Pa. Super. 1994). “It is well-established that a

lessor cannot infer abandonment of a lessee's personal property that remains at the

leased premises following the tenant's departure.” Hoyt v. Christoforou, 692 A.2d 217,

222 (Pa. Super. 1997) (citing above passage in Bednar).

In addition, the Lease contains the following clause:

24. Improvements, Alterations and Trade Fixtures: Prior to the

Initial Term, at Landlord’s cost and expense, it will perform the

work (if any) more specifically described on Exhibit “B”,

attached hereto. Prior to the Initial Term, at Tenant’s cost and

expense, it will perform the work (if any) more specifically

described on Exhibit “C”, attached hereto. Any Tenant work or

improvements to the Premises, including those set forth on

Exhibit “C”, shall only be conducted after receiving Landlord’s

prior written approval, and the approval of the mortgagee of

the Premises, if any and if required (execution of this Lease

shall not be deemed Landlord approval). Tenant shall submit

plans or drawings of any such contemplated work for

Landlord’s review and approval, and shall provide information

as to the contractor(s) performing such work and shall further

provide evidence of insurance, as reasonably required by

Landlord. In addition to Landlord’s approval, Tenant shall

obtain, at its sole cost, the approval of all applicable

authorities and agencies (municipal or otherwise) having

jurisdiction over Tenant’s work…..

All such leasehold improvements shall belong to and become

part of the Landlord’s property and be regarded for purposes

of this Lease as part of the Demised Premises subject to the

terms of this Lease.

ECF 69-1, pp. 10-11.

While Defendants were, pursuant to the Writ of Possession entitled to seize the

actual premises and, pursuant to the Lease, to any leasehold improvements after

Plaintiff withheld two month’s rent, the Defendants were not also entitled to seize

Plaintiff’s property and allow a new tenant to use Plaintiff’s property without

compensating Plaintiff. Therefore, Plaintiff may proceed with her conversion claim as to

any personal property that was left at the Property that cannot be classified as

leasehold improvements.

COUNT VII-TRESPASS TO CHATTELS

In Count VII, Plaintiff has brought a claim against Defendants 120 Northampton,

LLC, Borko Milosev, Post Road Management, LLC for trespass to chattels as follows:

405. At all times relevant, the Plaintiff was the owner of certain

personal property, including but not limited to restaurant

equipment, personal belongings, and immoveable fixtures

installed in the subject premises until the end of the lease term

on December 31st, 2026, including but not limited permanent

fixtures such as the installation of electrical wiring, fire

suppression equipment, plumbing, tiling, costs of the HVAC

system incorporated into the lease agreement, and custom

furniture (hereinafter referred to as “chattels”).

406. On October 28th, 2022, the Sheriff Deputy Kathleen

Nansteel executed against the Leasehold, including the

Plaintiff’s improvements, personal property, and restaurant

equipment, without Plaintiff’s consent or any legal justification.

407. The Defendants claim to currently have in their

possession the Plaintiff’s property, after initially asserting

through preliminary objections in the underlying proceeding

that it was no longer in their possession. This has not been

verified by the Plaintiff, and if true, the condition of the property

is unknown, and would be too burdensome on the Plaintiff to

inspect, test, move, and store the property.

408. As a direct and proximate result of the Defendant’s

unlawful interference with the Plaintiff’s chattels, the Plaintiff

has suffered damages, including but not limited to the loss of

the value of the chattels, the cost of replacing or restoring said

property, and emotional distress.

409. As a direct and proximate result of the Defendant’s

actions, the Plaintiff’s business is now defunct and without

possession of the leasehold, leaving the Plaintiff without a

location to accept the property if it were returned, and making

it unduly burdensome for the plaintiff to move and store the

personal property and restaurant equipment.

410. The Defendant’s conduct was intentional, reckless, and

without legal justification and regard for the Plaintiff’s rights.

Trespass to chattels is a similar tort to conversion committed when an individual

“dispossess[es] another of chattel ... or us[es] or intermeddl[es] with a chattel in the

possession of another.” Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700, 708

(Pa. Super. 2005) (citing Restatement (Second) of Torts § 217); The elements of

trespass to chattel are “are essentially the same” as those of the tort of

conversion. Rosemont Taxicab Co., Inc. v. Philadelphia Parking Authority, 327

F.Supp.3d 803, 828 (E.D. Pa. 2018) (citation omitted).

For the same reasons the Court discussed in permitting the Count for conversion

of Plaintiff’s personal property to proceed, the Court will allow the claim for trespass to

chattels to proceed.

COUNT IX-CONSTRUCTIVE EVICTION

In Count IX, Plaintiff asserts a claim against Defendants 120 Northampton, LLC,

Borko Milosev, Post Road Management, LLC for constructive eviction as follows:

423. The intentional failure to install return duct equipment to

the HVAC system, loss of structural integrity to the floors of

the Plaintiff’s leasehold due to unmitigated flood damage, and

the missing brick and mortar from the exterior wall exposing

the Plaintiff’s leasehold to the elements, including rodents and

insects, substantially interfered with the Plaintiff’s use and

enjoyment of the Leasehold.

424. On October 28th, 2022, the Plaintiff was locked out of the

leasehold and possession was returned to the Defendants

unlawfully, by the Northampton County Sheriff.

425. The Defendant’s actions, including directing the Sheriff

to execute against the leasehold, locking the door and

returning possession to the Defendants, re-letting of the

property without crediting the Plaintiff for the improvements,

and currently attempting to sell the property, has, and

continues to substantially interfere with the Plaintiff’s use and

enjoyment of the leasehold.

426. As a direct result of the Defendant’s actions, the Plaintiff

was effectively forced to vacate the Leasehold, as the

interference deprived the Plaintiff of the beneficial use and

enjoyment of the premises.

“Under Pennsylvania law, constructive eviction occurs when a landlord deprives

a tenant of the beneficial enjoyment of all or part of the leased premises in such a way

as to manifest an intention to hold the premises adversely to the tenant.” W.G. Nichols,

Inc. v. Ferguson, No. 03-824, 2004 WL 868222, at *16 (E.D. Pa. 2004) (citing Kuriger v.

Cramer, 345 Pa.Super. 595, 498 A.2d 1331, 1338 (Pa. Super. 1985)). “[T]he

interference by a landlord with the possession of his tenant or with the tenant's

enjoyment of the demised premises must be of a substantial nature and so injurious to

the tenant as to deprive him of the beneficial enjoyment of the demised premises, to

which the tenant yields, abandoning possession within a reasonable time.” Lindstrom v.

Pennswood Vill., 417 Pa.Super. 495, 612 A.2d 1048, 1052 n.2 (Pa. Super. 1992).

“Possession must be given up entirely by the tenant in consequence of the landlord's

acts.” See 49 Am.Jur.2d §§ 302, 303; Sears, Roebuck & Co. v. 69th St. Retail Mall,

L.P., 126 A.3d 959, 968 (Pa. Super. 2015).

In this case, Plaintiff was lawfully, not constructively, evicted pursuant to a facially

valid Writ of Possession. Therefore, Plaintiff’s claim for constructive eviction is

dismissed.

COUNT X-UNJUST ENRICHMENT

In Count X Plaintiff asserts a claim against Defendants Borko Milosev, 120

Northampton, LLC and Post Road Management, LLC for unjust enrichment.

Specifically, Plaintiff alleges:

249. After the commencement of the Lease term, the Plaintiff

was responsible for majority of the improvements to the

subject premises including but not limited to architectural

plans, permits, fire suppression equipment including the

installation of sprinkler heads and fire alarm pulls, all electrical

components including outdoor lighting on the front façade,

custom light fixtures, finished plumbing and plumbing fixtures,

HVAC system, drywall, subway tiling backsplash, floor

coverings and ceramic tiles, custom built quartz cash wrap

and six foot (6ft) long quartz bar with custom cabinetry

throughout bar area, custom built in benches, and custom

built in merchandise shelving.

250. The Plaintiff, at all times relevant was entitled to

possession of the subject premises, and all property

contained within, including removable and permanent tenant

improvements until December 31st, 2026.

251. As a direct and proximate result of the unlawful

deprivation of the tenant’s property, and the concerted actions

of all Defendants, possession of the subject premises and of

all the tenant’s personal property and improvements was

given to Defendants 120 Northampton, LLC, Post Road

Management, LLC, and Borko Milosev.

252. Defendants 120 Northampton, LLC, Borko Milosev, and

Post Road Management, LLC, sent via electronic and postal

mail, a security deposit disposition of three-thousand dollars

($3,000), stating that they would be retaining the Plaintiffs

deposit and would not be returning it after unlawfully taking

possession of the premises with the joint involvement of the

Northampton County Sheriff and Deputy.

253. Defendants 120 Northampton LLC, Borko Milosev, and

Post Road Management, LLC, have since relet the premises

to a new tenant, “Cake and Corolla”, and have accepted

increased rental payments on or before March 1st, 2023.

254. Defendants 120 Northampton, LLC, and Borko Milosev

did not credit the judgment against the Plaintiff in the amount

of one hundred sixteen thousand, two hundred forty-seven

dollars and fifty-four cents ($116, 247.54), for rental payments

they have received from “Cake and Corolla”, nor for the value

of the personal property and restaurant equipment in their

possession.

255. Although the Defendants have the Plaintiff’s property,

they still maintain the Plaintiff owes Defendant 120

Northampton, LLC $4,798.09 in the underlying state-court

action, although the Plaintiff’s property is worth tens of

thousands of dollars.

256. Defendants 120 Northampton, LLC, Borko Milosev, and

Post Road Management, LLC, have unjustly enriched

themselves, at the expense of the Plaintiff.

257. As aforementioned, the Defendants acted with intent,

malice, recklessness, and egregious disregard for the

Plaintiffs right

Under Pennsylvania law, unjust enrichment claims fall into one of two

categories: (1) a quasi-contract theory of liability, in which case

the unjust enrichment claim is brought as an alternative to a breach of contract claim; or

(2) a theory based on unlawful or improper conduct established by an underlying claim,

such as fraud, in which case the unjust enrichment claim is a companion to the

underlying claim. Dockery v. Heretick, 2019 WL 2122988, at *21 (E.D. Pa. May 14,

2019) (citing Zafarana v. Pfizer, Inc., 724 F. Supp. 2d 545, 561 (E.D. Pa. 2010)).

As to the first theory, an unjust enrichment claim based on a theory of quasi-

contract may be pleaded as an alternative to a breach of contract claim. Lugo v.

Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. Ct. 2009). “A quasi-contract

imposes a duty, not as a result of any agreement, whether express or implied, but in

spite of the absence of an agreement, when one party receives unjust enrichment at the

expense of another.” AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991

(Pa. Super. Ct. 2001). A quasi-contract theory is “typically invoked ... when [the] plaintiff

seeks to recover from [the] defendant for a benefit conferred under an unconsummated

or void contract.” Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc.,

171 F.3d 912, 936 (3d Cir. 1999).

However, in this case Plaintiff’s unjust enrichment claim fails as a matter of law

because her allegations are dependent on the parties’ written lease

agreement. See Benefit Tr. Life Ins. Co. v. Union Nat'l Bank, 776 F.2d 1174, 1177 (3d

Cir. 1985) (“The Supreme Court of Pennsylvania has concluded that ‘the quasi-

contractual doctrine of unjust enrichment [is] inapplicable when the relationship between

parties is founded on a written agreement or express contract.’ ” (quoting Schott v.

Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443, 448 (Pa. 1969))).

COUNT XI-CONSTRUCTIVE TRUST

In Count XI, Plaintiff asserts a claim against Defendants 120 Northampton, LLC,

Post Road Management, LLC and Borko Milosev for constructive trust. However,

Pennsylvania does not recognize a separate cause of action for constructive trust.

Instead, constructive trust is an equitable remedy, usually for claims of unjust

enrichment. Chaleplis v. Karloutsos, 579 F. Supp. 3d 685, 706 (E.D. Pa. 2022)

citing Buchanan v. Brentwood Fed. Sav. and Loan Ass'n, 457 Pa. 135, 320 A.2d 117,

126 (1974) (“A constructive trust ... is not really a trust at all but rather an equitable

remedy.”); Brock & Co., Inc. v. Kings Row Assocs., 2004 WL 2624864, at *5 (E.D. Pa.

Nov. 17, 2004) (noting that “a constructive trust is an equitable remedy and not a

separate, specific cause of action”). As the Court has already dismissed Plaintiff’s unjust

enrichment claim, Count XI will be dismissed.

COUNT XII-EQUITABLE LIEN

Count XII asserts a claim against Defendants, 120 Northampton, LLC, Post Road

Management, LLC and Borko Milosev for equitable lien. Like a constructive trust, an

equitable lien under Pennsylvania law is an equitable remedy designed to provide

redress in cases in which the obligor's retention of certain property or the proceeds

thereof would constitute unjust enrichment. As the Court has already dismissed

Plaintiff’s claim for unjust enrichment, Count XII will be dismissed as well.

COUNT XIII-INTENIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count XIII, Plaintiff asserts a claim against all Defendants for intentional

infliction of emotional distress as follows:

275. The Defendant’s conduct in directing the unlawful

execution against the Plaintiff’s property and specifically

attempting to sell the Leasehold without addressing the

Plaintiff’s interest is intentional, extreme, outrageous, and

beyond all possible bounds of decency.

276. The Defendant’s actions were intentional and done with

reckless disregard of the high probability that such conduct

would cause the Plaintiff severe emotional distress.

277. As a direct and proximate result of the Defendant’s

extreme and outrageous conduct, Plaintiff has suffered

severe emotional distress, including but not limited to anxiety,

depression, emotional pain, and suffering.

278. The Plaintiff’s physical distress includes nightmares,

night sweats, chest pains, paranoia, and sleeplessness.

279. Plaintiff’s emotional distress has been exacerbated by

having to navigate the complexities of litigation to defend

herself from the void ab initio unlawful judgment entered

against her, the inability to find an uncompromised attorney to

represent her interests, and the necessity of drafting the civil

rights complaint herself.

280. The emotional distress suffered by the Plaintiff has been

so severe that the Plaintiff requires the attention of a

psychologist and ongoing emotional support to cope with the

reality of the extensive corruption that has transpired.

A claim for intentional infliction of emotional distress requires proof that: (1) the

defendant's conduct was extreme and outrageous; (2) the conduct caused the plaintiff

severe emotional distress; and (3) the defendant acted intending to cause such distress

or with knowledge that same was “substantially certain” to occur. Brown v. Muhlenberg

Township, 269 F.3d 205, 217-18 (3d Cir. 2001) (quoting Restatement (Second) of

Torts § 46, cmt. d). Whether conduct could reasonably be regarded as extreme and

outrageous is a threshold inquiry for the court's determination. M.S. ex rel. Hall v.

Susquehanna Twp. Sch. Dist., 43 F.Supp.3d 412, 430 (M.D. Pa. 2014) (citing Reimer v.

Tien, 356 Pa.Super. 192, 514 A.2d 566, 569 (1986) ). The Supreme Court of

Pennsylvania has cited approvingly the Superior Court's requirement that “[t]he conduct

must be so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized society.” Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (alteration

in original) (quoting Buczek v. First Nat'l Bank of Mifflintown, 366 Pa.Super. 551, 531

A.2d 1122, 1125 (1987) ).

The only allegation Plaintiff makes with respect any extreme and outrageous

conduct is that “[t]he Defendant’s conduct in directing the unlawful execution against the

Plaintiff’s property and specifically attempting to sell the Leasehold without addressing

the Plaintiff’s interest is intentional, extreme, outrageous, and beyond all possible

bounds of decency.” ECF 69 at ¶ 275. The Court finds as a matter of law that such

conduct, accepted as true, cannot be plausibly characterized as extreme and

outrageous under Pennsylvania law. Accordingly, Plaintiff’s claim for intentional infliction

of emotional distress is dismissed.

An appropriate Order follows.