Opinion

IN THE UNITED STAES DISTRICT COURT

FOR THE EASTER DISTRICT OF PENNSYLVANIA

BRISTOL OAK PROPERTIES, INC., :

Plaintiff, : No. 25-cv-0504-JMY

:

vs. :

:

COMMONWEALTH OF :

PENNSYLVANIA, et al., :

Defendants. :

MEMORANDUM

Younge, J. November 26, 2025

Currently before the Court is a Motion to Dismiss for Failure to State a Claim and for

Lack of Subject Matter Jurisdiction filed by Defendants, the Commonwealth of Pennsylvania,

Pennsylvania Department of Transportation, and Michael Carrol (hereinafter the

“Commonwealth Defendants”). (Commonwealth Defendants’ Motion to Dismiss, ECF No. 14.)

Defendants, Bensalem Township and Kenneth V. Farrall, as the Director of Building and

Planning and the Zoning Officer for Bensalem Township (hereinafter the “Bensalem

Defendants”), have also filed a Motion to Strike and Dismiss Plaintiff’s Amended Complaint

under Fed. R. Civ. P. 12(b)(6). (Bensalem Defendants’ Motion to Strike and Dismiss Plaintiff’s

Amended Complaint under Fed. R. Civ. P. 12(b)(6), ECF No. 16.) The Court finds Defendants’

Motions appropriate for resolution without oral argument. Fed. R. Civ. P. 78; L.R. 7.1(f). For

the reasons set forth in this Memorandum, Defendants’ Motions will be granted, and all claims

asserted in the Amended Complaint will be dismissed with prejudice and without leave to

amend.

I. FACTUAL AND PROCEDURAL BACKGROUND:

A. Procedural History:

Plaintiff, Bristol Oak Properties, Inc., brings this lawsuit against Defendants: the

Commonwealth of Pennsylvania (the “Commonwealth”); Michael Carrol, the Secretary of the

Pennsylvania Department of Transportation (“Carrol”); the Pennsylvania Department of

Transportation (“PennDOT”); Bensalem Township; and Kenneth V. Farrall, the Director of

Building and Planning and Zoning Officer for Bensalem Township (“Farrall”). (Amended

Complaint ¶¶ 5-9, ECF No. 10.) In this lawsuit, Plaintiff alleges that it owned two parcels of real

property in Bensalem Township, Pennsylvania which it sold prior to filing this lawsuit. (Id. ¶¶ 2,

13, 39.) Plaintiff further alleges that Defendants violated the fourth, fifth and Fourteenth

Amendments to the United States Constitution when Defendants refused to maintain

infrastructure in the form of a stormwater drainage system running along Bristol Road. (Id.)

In the Amended Complaint, Plaintiff sues Defendants based on five separate legal

theories as follows: (1) Plaintiff asserts claims for malicious prosecution under Section 1983 (Id.

(Count I); (2) Plaintiff alleges that Defendants violated the Equal Protection Clause and the Due

Process Clause of the United States Constitution (Id. (Count II); (3) Plaintiff alleges that

Defendants violated its Procedural Due Process Rights under Section 1983 and Section 1985 (Id.

(Count III); (4) Plaintiff alleges that Defendants failed to maintain the stormwater system in

accordance with law and regulation under 1983 (Id. (Count IV); and (5) Plaintiff asserts state law

legal theories of negligence and tortious interference. (Id. (Count V).)

The Commonwealth Defendants now move to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed. R. Civ. P.

12(b)(6). (The Commonwealth Defendants’ Motion to Dismiss.) The Bensalem Defendants

have also filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

(Bensalem Defendants’ Motion to Dismiss.)

B. Factual Background:

Plaintiff owned two properties in Bensalem Township, Pennsylvania located at 4550

Bristol Road and 4432 Bristol Road, Bensalem Township, Bucks County, Pennsylvania which it

sold prior to instituting this lawsuit. (Id. ¶ 13, 39.) Plaintiff alleges that between approximately

1975 and 1985, PennDOT installed a stormwater management system below the surface of

Bristol Road, also known as State Route 2025. (Id. ¶ 17.) Plaintiff claims that over the years,

despite occasional maintenance, PennDOT allowed the stormwater system’s condition to

deteriorate. (Id. ¶ 20.) Plaintiff further alleges that the Commonwealth Defendants were

responsible for maintaining the stormwater management system which included the

responsibility to ensure proper drainage to prevent unsafe water accumulation on Bristol Road.

(Id. ¶ 14, 16.) In support of its contention that the Commonwealth Defendants were responsible

for stormwater management, Plaintiff specifically avers that between the years of 1975 through

1985 and again in 2010 and 2011, the Commonwealth Defendants along with the Bensalem

Defendants installed, repaired and maintained the stormwater management system as if it was

within their right-of-way. (Id. ¶¶ 17-18.)

The Amended Complaint depicts a saga that took place over the course of more than a

decade in which Defendants are alleged to have attempted to thwart and duck responsibility for

the stormwater management system and related flooding along Bristol Road. According to the

narrative depicted in the Amended Complaint, Plaintiff became entangled in a bitter dispute with

Defendants over who was responsible for maintaining the stormwater management system that

ran adjacent to Bristol Road along the two properties. Plaintiff alleges that Defendants

wrongfully took the position that maintenance on the stormwater system was Plaintiff’s

responsibility while Plaintiff maintains that Defendants were responsible for maintenance of the

system.

Plaintiff avers that beginning on October 4, 2011, Defendant Bensalem Township issued

a Notice of Violation to Plaintiff directing Plaintiff to repair damage on the property at issue that

was related to the stormwater management system. (Id. ¶ 23.) On December 15, 2011, the

Bensalem Township Defendants cited Plaintiff with two Summary Offenses for failure to cure

the conditions of the stormwater management system identified in the Notice of Violation issued

on October 4, 2011. Plaintiff allegedly challenged the two Summary Offenses by arguing that

repair and maintenance of the stormwater management system was the responsibility of the

Commonwealth Defendants rather than itself. (Id.) Plaintiff further asserts that it ultimately

prevailed in its position and that the court dismissed Summary Offenses by finding that the

Commonwealth Defendants were responsible for repair and maintenance of the stormwater

system. After the court dismissed Summary Offenses, Plaintiff avers that PennDot made repairs

to the damaged stormwater management system at 4550 and 4432 Bristol Road. (Id. ¶¶ 25, 26.)

Plaintiff claims that the condition of the stormwater management system continued to

deteriorate and was at risk of failure by late 2022; however, Defendants continued to deny

responsibility. (Id. ¶¶ 28.) Instead, the Bensalem Defendants issued another Summary Offense

to Plaintiff on September 6, 2022, instructing Plaintiff to “repair all parking and asphalted areas

of the property so that there [were] no longer any potholes, ruts, or other erosion issues on the

property.” (Id. ¶ 30.) Plaintiff claims he contacted the Bensalem Defendants to assert that

Defendants were responsible for maintenance. (Id. ¶ 32.) Thereafter, the Bensalem Defendants

agreed to drop the Summary Offenses but allegedly continued to deny responsibility for the

stormwater management system. (Id. ¶¶ 34-35.)

Plaintiff alleges Defendants’ failure to maintain the stormwater management system

created a dangerous condition on its two properties and the adjacent area of Bristol Road. (Id. ¶

36.) Plaintiff hired an engineering firm to analyze the condition of the stormwater management

system, and the resulting report determined the system was going to fail imminently, causing

damage to Plaintiff’s properties and posing potential dangers. (Id. ¶¶ 28-37, Report by Richard

C. Grow, Amended Complaint, Ex. 4, ECF No. 2.)

To avoid these dangers and potential damage, Plaintiff alleges that it was forced to incur

costs in excess of $600,000.00 to repair and replace the failing stormwater management system.

(Id. ¶ 39.) Plaintiff thereafter conveyed the Bristol Road properties to new owners. (Id.) On

July 9, 2024, prior to selling the real estate at issue in this litigation, Plaintiff granted an

easement to PennDot so that it could access underground utilities and/or storm water sewer lines

that were inadvertently installed beyond the original legal right-of-way running along Plaintiff’s

property adjacent to a public highway. (Grant of Right of Way/Utility/General Access

Easement, Am. Compl. Ex 5., ECF No. 10-5.) It would appear that Plaintiff granted the

easement to remediate a situation that developed after Defendants inadvertently installed

underground utilities and/or stormwater sewer lines partially outside of the original right-of-way

along Plaintiff’s property. (Id.)

II. LEGAL STANDARD:

A. Legal Standard for Failure to State a Claim under Federal Rule of Civil Procedure

12(b)(6):

The standard for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

is examined in detail in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal, it is clear that

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To survive dismissal, ‘a complaint must

contain sufficient factual matter, accepted as true, to state a claim [for] relief that is plausible on

its face.’” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556

U.S. at 678). Facial plausibility is “more than a sheer possibility that a defendant has acted

unlawfully.” Id. (quoting Iqbal, 556 U.S. at 678). Instead, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678).

Thus, this Court must examine Plaintiff’s claims to determine whether it can infer that

Defendants are liable for the alleged misconduct.

B. Legal Standard for Lack of Subject Matter Jurisdiction:

A Rule 12(b)(1) motion is the proper mechanism for raising the issue of whether

Eleventh Amendment immunity bars federal jurisdiction. Blanciak v. Allegheny Ludlum Corp.,

77 F.3d 690, 694 n.2 (3d Cir. 1996), citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 98-100 (1984) (Eleventh Amendment is a jurisdictional bar which deprives federal courts of

subject matter jurisdiction). When a motion to dismiss is based on lack of subject matter

jurisdiction in addition to other defenses, “[a]n actual determination must be made whether

subject matter jurisdiction exists before a court may turn to the merits of the case.” Tagayun v.

Stolzenberg, 239 Fed. App’x. 708, 710 (3d Cir. 2007); see McCurdy v. Esmonde, No. 02-cv-

4614, 2003 U.S. Dist. LEXIS 1349, at *4 (E.D. Pa. Jan. 30, 2003).

III. DISCUSSION:

The Court will grant motions to dismiss filed by the Defendants. Counts I through V of

the Amended Complaint will be dismissed with prejudice for reasons explained in more detail

hereinbelow in subsections A through H of this Memorandum. Plaintiff will not be granted leave

to file an amended complaint because the fact pattern of this case does not establish that a person

acting under color of state law deprived Plaintiff of a right under the United States Constitution

which is a prerequisite to establishing liability under 42 U.S.C. § 1983. Plaintiff also fails to

assert a viable claim under 42 U.S.C. § 1985.

When a motion to dismiss is granted, the Court must decide whether to grant leave to

amend. The Third Circuit has a liberal policy favoring amendments and, thus, leave to amend

should be freely granted. See, e.g., Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000); Dole v.

Arco Chem. Co., 921 F.2d 484, 486 (3d Cir. 1990). However, a court need not grant leave to

amend when it would be an exercise in futility. City of Cambridge Ret. Sys. v. Altisource Asset

Mgmt. Corp., 908 F.3d 872, 879 (3d Cir. 2018) (“Leave to amend is properly denied if

amendment would be futile, i.e., if the proposed complaint could not ‘withstand a renewed

motion to dismiss.”’) (quoting Jablonski v. Pan. Am. World Airways, Inc., 863 F.2d 289, 292 (3d

Cir. 1988)); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.

1997) (recognizing that denial of leave to amend is not an abuse of discretion where the

pleadings before the court demonstrate that further amendment would be futile). Since defects in

Plaintiff’s pleadings cannot be cured with further amendment, all claims asserted in this lawsuit

will be dismissed with prejudice and without leave to amend. See City of Cambridge Ret. Sys.,

908 F.3d at 879 (3d Cir. 2018) (“Leave to amend is properly denied if amendment would be

futile, i.e., if the proposed complaint could not ‘withstand a renewed motion to dismiss”’).

A. Eleventh Amendment Immunity Bars Claims Asserted against the Commonwealth

of Pennsylvania, Pennsylvania Department of Transportation, and Michael Carrol:

Plaintiff seeks damages from the Commonwealth of Pennsylvania and the Pennsylvania

Department of Transportation based on theories of direct liability under Section 1983 for alleged

violations of the Fourth, Fifth and Fourteenth Amendments. Plaintiff also asserts similar claims

against Defendant Carrol and has sued him in his official capacity as the Secretary for the

Pennsylvania Department of Transportation.1 However, the Eleventh Amendment generally bars

suit against a state, its agencies, such as the Pennsylvania Department of Transportation, and/or a

state official like Defendant Carrol in his official capacity.

The Eleventh Amendment prevents a private party from filing a lawsuit against a state,

state agencies, and/or state officials in their official capacities by removing federal subject matter

jurisdiction. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997); Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Pennhurst, 465 U.S. at 100-01; see also Melo v.

Hafer, 912 F.2d 628, 635 (3d Cir. 1990), aff’d, 502 U.S. 21, 31 (1991) (citing Kentucky v.

Graham, 473 U.S. 159, 165-66 (1985) for the proposition that the Eleventh Amendment “also

bars a suit against state officials in their official capacity, because the state is the real party in

interest inasmuch as the plaintiff seeks recovery from the state treasury.”); Betts v. New Castle

Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010) (“Individual state employees sued in their

official capacity are also entitled to Eleventh Amendment immunity because ‘official-capacity

suits generally represent only another way of pleading an action’ against the state.”) (quoting

Hafer v. Melo, 502 U.S. 21, 25 (1991)).

1 PennDOT is an executive agency of the Commonwealth, and Michael Carrol is sued solely in

his capacity as Secretary for PennDOT. See 71 P.S. §§ 61, 732-102; Lavia v. Pa. DOC, 224 F. 3d 190,

195 (3d Cir. 2000).

Eleventh Amendment immunity is subject to three basic exceptions: “(1) Congress may

specifically abrogate a state’s sovereign immunity by exercising its enforcement power under

the Fourteenth Amendment; (2) a state may waive its sovereign immunity by consenting to suit;

or (3) under Ex parte Young, a state official may be sued in his or her official capacity for

prospective injunctive relief.” Hollihan v. Pennsylvania Department of Corrections, 159

F.Supp.3d 502, 510 (M.D. Pa. 2016) (citing Ex parte Young, 209 U.S. 123 (1908)); see

also Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-70 (1997).

As it pertains to the first exception, it is well-settled that by enacting Section 1983

Congress has not abrogated Eleventh Amendment Immunity. Id. (citing Will v. Michigan Dept.

of State Police, 491 U.S. 58, 66 (1989)). Second, Pennsylvania has unequivocally withheld

consent to suit under Section 1983. Id. “Section 8521 of Title 42 of the Pennsylvania

Code clearly states, ‘Nothing contained in this subchapter shall be construed to waive the

immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh

Amendment of the Constitution of the United States.’” Id. (citing 42 Pa. C.S. § 8521(b)); see

also Lombardo v. Pennsylvania, Dept. of Public Welfare, 540 F.3d 190, 196 (3d Cir. 2008); see

also Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). As for the third exception, Plaintiff

cannot realistically pursue a claim for injunctive relief because it sold the properties at issue in

this litigation. Therefore, it cannot establish the standing to pursue injunctive relief.2 Isabella v.

2 Standing to seek injunctive relief requires imminent threat of concrete particularized harm. Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009). To satisfy this burden, a plaintiff must show (1) “that he is under

a threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not

conjectural or hypothetical; (2) it must be fairly traceable to the challenged action of the defendant; and (3) it must

be likely that a favorable judicial decision will prevent or redress the injury.” Id.; see also Chamber of Commerce

for Greater Philadelphia v. City of Philadelphia, 2017 U.S. Dist. LEXIS 231022, *7 (E.D. Pa. May 30, 2017). “A

federal court must dismiss a complaint for lack of subject matter jurisdiction under the case-or-controversy

requirement of Article III of the United States Constitution if the plaintiff lacks standing to bring a claim.” Travelers

Indem. Co. v. Cephalon, Inc., 32 F. Supp. 3d 538, 544 (E.D. Pa. 2014) (citing Lujan, 504 U.S. at 560), aff’d 620 F.

App’x 82 (3d Cir. 2015).

Champagne, No. 17-cv-2028, 2018 U.S. Dist. LEXIS 30860, *5-6 (E.D. Pa. Feb 26, 2018) (the

district court dismissed a lawsuit based on the theory that plaintiff lacked standing to request

declaratory and injunctive relief against an appointed conservator after selling the real estate at

issue.)

Plaintiff fails to invoke any of the three exceptions to Eleventh Amendment immunity, so

the Court will dismiss from this lawsuit Section 1983 claims asserted against the Commonwealth

of Pennsylvania and the Pennsylvania Department of Transportation. The Court will also

dismiss Section 1983 claims asserted against Defendant Carrol because claims against state or

local officials named in their official capacity are indistinguishable from claims against the

governmental entity that employs them. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)

(“Official-capacity suits . . . ‘generally represent only another way of pleading an action against

an entity of which an officer is an agent.’”) (quoting Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658, 690, n.55 (1978)). “[A]n official-capacity suit is, in all respects other than name, to be

treated as a suit against the entity.” Id. Thus, Section 1983 claims against Defendant Carrol in

his official capacity are really claims against the Pennsylvania Department of Transportation and

Commonwealth of Pennsylvania, which are shielded from Section 1983 suits by Eleventh

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

198 (3d Cir. 2008) (“As an arm of the State, an individual judicial district and its probation and

parole department are entitled to Eleventh Amendment immunity.”); Downey v. Pennsylvania

Dep’t of Corr., 968 F.3d 299, 309-10 (3d Cir. 2020) (“Eleventh Amendment immunity bars

actions for retroactive relief against state officers acting in their official capacity.”). States are

also not “persons” subject to liability under Section 1983. Will v. Michigan State Police, 491

U.S. 58, 70 (1989).

Accordingly, the Court will dismiss with prejudice all claims asserted under Section 1983

against the Commonwealth Defendants, including official capacity claims brought against

Defendant Carrol, because these claims are barred by the Eleventh Amendment.

B. The Doctrine of Qualified Immunity Protects Defendant Kenneth V. Farral in His

Individual & Personal Capacity from the Section 1983 Claims Asserted by Plaintiff:

Plaintiff brings suit under Section 1983 against Defendant Kenneth V. Farrall in

Defendant’s capacity as the Director of Building and Planning and in his capacity as a Zoning

Officer for Bensalem Township. However, the doctrine of qualified immunity shields Defendant

Farrall from liability in his individual capacity for the federal constitutional violations asserted

by the Plaintiff. Qualified immunity protects government officials from liability for civil

damages in lawsuits brought under Section 1983 insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010); Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Pearson v. Callahan, 555 U.S. 223, 231 (2009).

In asserting a Section 1983 claim, “a plaintiff must allege both a deprivation of a

federally protected right and that this deprivation was committed by one acting under color of

state law.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). To determine

whether qualified immunity protects officials in a particular case, courts must consider: (1)

whether the facts alleged by the plaintiff show the violation of a constitutional right, and (2)

whether the right was clearly established at the time of the violation. Ashcroft v. Al-Kidd, 563

U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).)

In the Third Circuit, courts conduct a two-step inquiry to determine whether a

government official is entitled to qualified immunity. See Morgan v. Fiorentino, 811 F. App’x

798, 802 (3d Cir. 2020). First, courts ask “whether the plaintiff sufficiently alleged the violation

of a constitutional right.” Id. “If the facts, when viewed in the light most favorable to the

plaintiff, do not show that the [official] violated a constitutional right, then plaintiff’s § 1983

claim must fail.” Cox v. Hackett, No. 05-cv-2260, 2006 U.S. Dist. LEXIS 51473, at *8 (E.D. Pa.

July 27, 2006) (citing Curley, 298 F.3d at 277). Second, when the facts do show a violation,

courts ask “whether the right was ‘clearly established’ at the time of the official’s conduct.”

Morgan, 811 F. App’x at 802. To overcome qualified immunity, a plaintiff must not only

successfully allege a violation of a constitutional right, but a plaintiff must also prove that the

constitutional right was clearly established at the time the claim accrued. Kelly, 622 F.3d at 253.

A right is clearly established if, given the circumstances, a reasonable official would not have

known his/her conduct was a federal constitutional violation. Id.

Turning to the fact pattern of the case sub judice, Plaintiff is completely incapable of

satisfying the first element of the qualified immunity analysis. As discussed at length in this

Memorandum hereinbelow, it is the opinion of the Court that Plaintiff has failed to establish that

any of the Defendants committed a federal constitutional civil rights violation. Therefore, the

doctrine of federal qualified immunity shields Defendant Farral in his individual personal

capacity from the claims asserted in the Amended Complaint. However, assuming arguendo

there was a constitutional violation, it is the opinion of this Court that Plaintiff would equally be

incapable of satisfying the second element of the test for evaluating qualified immunity.

When evaluating the second step in the application of the doctrine of qualified immunity,

the question is whether a reasonable zoning officer or director of building and planning would

have recognized that he or she was violating the United States Constitution when issuing the

Notice of Violation in 2022 for potholes, sinkholes and ruts in the driveway and parking area of

the Plaintiff’s property. In this Court’s opinion, Defendant Farrell did not violate a right that was

clearly established under the United States Constitution in issuing the Notice of Violation. In the

Amended Complaint, Plaintiff describes owning real estate that was damaged by a stormwater

system that was in imminent risk of failure. Plaintiff further alleges to have spent $600,000 to

repair the stormwater drainage system. (Amended Complaint ¶ 39.) In the Amended Complaint,

Plaintiff describes a severely damaged stormwater drainage system that was in imminent risk of

failure which suggests that Defendant Farrall acted reasonably when issuing the Notice of

Violation. It could reasonably be assumed that Defendant Farrall simply attempted to address a

perceived public safety problem by issuing a Notice of Violation to prod the Plaintiff to correct

defects in the real estate.

When conducting qualified immunity analysis under the second element of the two-part

test, the Court must focus on whether a right is established in the circumstances of the case.

“[T]he right allegedly violated must be defined at the appropriate level of specificity before a

court can determine if it was clearly established.” Wilson v. Layne, 526 U.S. 603, 615 (1999).

The exact factual situation presented need not have been the subject of prior authority, but earlier

precedent must be sufficiently analogous that a prudent government official would recognize that

similar principles must guide their conduct. As the rule was described by the Supreme Court:

“This is not to say that an official action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635 (1987),

640; see also Ashcroft v. Al-Kidd, 563 U.S. at 741; Wilson v. Layne, 526 U.S. 603, 615 (1999).

C. Plaintiff Fails to Plead Sufficient Facts in the Amended Complaint to Establish a

Monell Claim against Bensalem Township:

A local government, such as Bensalem Township in Bucks County, Pennsylvania, can be

liable as “persons” under § 1983; however, this liability extends only to its “own illegal

acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. Cincinnati, 475 U.S.

469, 479 (1986)); see Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 694

(1978). This limitation is based on the well-established principle that municipalities “are not

vicariously liable under § 1983 for their employees’ actions.” Connick, 563 U.S. at 60. In other

words, municipal liability cannot be predicated on a respondeat superior basis. Monell, 436 U.S.

at 691 (“[A] municipality cannot be held liable solely because it employs a tortfeasor – or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior

theory.”) To plead a basis for liability against a municipal entity under Section 1983, Plaintiff

must allege that the municipality’s policy or custom caused the violation of his constitutional

rights. Bowling v. Lehigh Cnty., 2024 U.S. Dist. LEXIS 31970, at *6 (citing Monell, 436 U.S. at

694 (1978); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)).

To state a plausible claim against a county under Section 1983, a plaintiff must allege that

the county’s policy or custom caused the violation of its constitutional rights. See Monell, 436

U.S. at 694. “To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that

custom or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).

‘“Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy

with respect to the action issues an official proclamation, policy, or edict.”’ Estate of Roman v.

City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990)). ‘“Custom, on the other hand, can be proven by showing that a

given course of conduct, although not specifically endorsed or authorized by law, is so well-

settled and permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir. 1990)). For a custom to be the proximate cause of an injury, a plaintiff

must establish that the defendant “had knowledge of similar unlawful conduct in the past, failed

to take precautions against future violations, and that its failure, at least in part, led to [plaintiff’s]

injury.” Id. Allegations that simply paraphrase the standard for municipal liability, are too

vague and generalized to support a plausible claim. See, e.g., Szerensci v. Shimshock, No. 20-

1296, 2021 U.S. Dist. LEXIS 187873, at *18-19 (W.D. Pa. Sept. 30, 2021) (citing cases).

A plaintiff may also state a basis for municipal liability by “alleging failure-to-supervise,

train, or discipline . . . [and alleging facts showing] that said failure amounts to deliberate

indifference to the constitutional rights of those affected.” Forrest v. Parry, 930 F.3d 93, 106

(3d Cir. 2019). “This consists of a showing as to whether (1) municipal policymakers know that

employees will confront a particular situation, (2) the situation involves a difficult choice or a

history of employees mishandling, and (3) the wrong choice by an employee will frequently

cause deprivation of constitutional rights.” Id.

A plain reading of the Amended Complaint establishes that Plaintiff fails to allege that

any policy or custom of Bensalem Township caused a violation of Plaintiff’s constitutional

rights. Furthermore, Plaintiff does not plead facts to establish a failure-to-supervise, train, or

discipline. Accordingly, the Court will dismiss with prejudice all claims against Defendant

Bensalem Township because the claims are not plausibly pled.

D. Plaintiff Fails to State a Claim for Malicious Prosecution under Section 1983:

The Court will dismiss Count I of the Amended Complaint which sets forth claims for

“malicious prosecution” under Section 1983. A plaintiff may bring an action under 42 U.S.C. §

1983 to redress a violation of “any rights, privileges, or immunities secured by the Constitution

and federal laws.” 42 U.S.C. § 1983. Thus, while malicious prosecution is generally a state-law

tort, malicious prosecution claims may be brought under Section 1983. Mills v. City of Covina,

921 F.3d 1161 (9th Cir. 2019).

To prevail in a malicious prosecution claim against a state actor under Section 1983,

Plaintiff must show a violation of its rights under the Fourth Amendment, and it must establish

the elements of a malicious prosecution claim under state law. Manganiello v. City of New York,

612 F.3d 149, 160-61 (2d Cir. 2002). To prevail in a Section 1983 malicious prosecution action,

a plaintiff must show: (1) the defendants initiated a criminal proceeding; (2) the criminal

proceeding ended in plaintiff’s favor; (3) the proceeding was initiated without probable cause;

(4) the defendants acted with actual malicious purpose or for a purpose other than bringing the

defendant to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding. Estate of Smith v. Marasco, 318 F.3d

497, 521 (3d Cir. 2003). Furthermore, a Section 1983 claim must be filed within 2 years of when

the criminal proceedings terminated in favor of the accused. Bartholomew v. Fichl, 782 F.2d

1148, 1155 (3d Cir. 1986); 42 Pa. C.S.A. § 5524.

Plaintiff’s malicious prosecution claims fail because it did not plausibly plead facts to

establish that any Defendant instituted criminal proceedings against it within the applicable two-

year statute of limitations. For example, Plaintiff alleges that “On December 15, 2011, Bensalem

Township and Farrall cited Plaintiff with two Summary Offenses for failure to cure” defective

conditions – potholes, sinkholes and ruts – in the driveway and parking area of Bristol Oaks

Properties. (Amended Complaint ¶ 24.; Notice of Violation, Amended Complaint, Exhibit 1,

ECF No. 10-1; Non-Traffic Citations, Amended Complaint, Exhibit 2, ECF No. 10-2 page 8-9.)

Defective conditions in the form of potholes, sinkholes and ruts allegedly presented a tripping

hazard which Plaintiff avers was a result of the damaged stormwater system that Defendants

failed to maintain. The Summary Offenses charged on December 15, 2011, were dismissed on

June 27, 2012. (Docket Transcript, Amended Complaint, Exhibit 2, ECF No. 10-2 page 2-3.)

Plaintiff further alleges that “[o]n September 6, 2022, Bensalem Township and Farrall

issued another Summary Offense directing Plaintiff to “repair all parking and asphalted areas of

the property so that there are [no] longer any potholes, ruts, or other erosion issues on the

property.” (Amended Complaint ¶ 30.) Although Plaintiff avers that it received a Summary

Offense on September 6, 2022, when discussing this purported Summary Offense, Plaintiff cites

to a Notice of Violation issued by Defendant Farrall on September 6, 2022. (Notice of Violation,

Amended Complaint Exhibit 3, ECF No. 10-3.) Therefore, it would appear that Plaintiff,

erroneously referred to the Notice of Violation issued on September 6, 2022, as a Summary

Offense. Plaintiff’s erroneous reference to being cited with a Summary Offense on September 6,

2022, is confirmed through tacit admission in its response to the Bensalem Defendants’ motion

to dismiss. (Response in Opposition to the Bensalem Defendants’ Motion to Dismiss page 4.) In

its response in opposition, Plaintiff fails to discuss having received a Summary Offense in 2022;

rather, Plaintiff refers to a “2022 Notice of Violation.” (Id.)

Allegations in the Amended Complaint fail to establish that any of the Commonwealth

Defendants instituted criminal proceedings against Plaintiff. With regard to the Bensalem

Township Defendants, the Amended Complaint and exhibits attached thereto also establish that it

has been well over a decade since the Summary Offenses issued in 2011 were dismissed.

Therefore, Summary Offenses issued in 2011 cannot form the basis of a viable malicious

prosecution claim because these claims are being asserted well after the expiration of the two-

year statute of limitations. Finally, it is the opinion of this Court that the Notice of Violation

issued in 2022 is simply insufficient to establish that the Bensalem Defendants instituted

criminal proceedings against Plaintiff. A Fourth Amendment Section 1983 claim for malicious

prosecution requires a seizure, i.e., an arrest. DiBella v. Borough of Beachwood, 407 F.3d 599

(3d Cir. 2005) (requiring plaintiff to attend trial for defiant trespass which is a petty disorderly

offense did not constitute a seizure for Fourth Amendment purposes). The Bensalem Defendants

issued a non-traffic citation to enforce a local property maintenance ordinance which this Court

believes is insufficient to establish an arrest or seizure.

E. Plaintiff Has Agreed to Voluntarily Withdraw Count II of the Amended Complaint:

Plaintiff has agreed to voluntarily withdraw legal theories asserted under 42 U.S.C. §

1983 that are based on the concept that Defendants violated the Equal Protection Clause and Due

Process Clause of the United States Constitution as set forth in Count II of the Amended

Complaint. (Response in Opposition to Bensalem Defendants’ Motion to Dismiss page 5, ECF

No. 20; Response in Opposition to Commonwealth Defendants’ Motion to Dismiss page 6, ECF

No. 21.) Therefore, legal theories set forth in Count II of the Amended Complaint are no longer

a going concern, and the Court is not required to engage in further analysis of their merits to

dispense with these claims.

F. Count III of the Amended Complaint which sets Forth Plaintiff’s Procedural Due

Process Claim is Dismissed from this Action:

The Court will dismiss Count III of the Amended Complaint which sets forth claims

brought under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 that are based on the legal theory that

Defendants violated Plaintiff’s procedural due process rights. (Amended Complaint, ¶ 56.) In

its response to Defendants’ motions to dismiss, Plaintiff clarifies its procedural due process claim

by declaring that it is not premised upon the takings clause in the Fifth Amendment or the

Eminent Domain Code of Pennsylvania, 26 Pa. C.S. § 101, et seq. (Response in Opposition to

Bensalem Defendants’ Motion to Dismiss page 5-6; Response in Opposition to Commonwealth

Defendants’ Motion to Dismiss page 6.) Rather, Plaintiff takes the position that its procedural

due process, “claims are based on Defendants’ ongoing efforts to sanction and punish Plaintiff

for protecting its Constitutional rights by seeking to impose fines and sanctions upon Plaintiff,

thereby depriving it of due process.” (Id.)

Plaintiff fails to set forth facts in the Amended Complaint to establish a procedural due

process violation. The Amended Complaint cites to two instances where Plaintiff received

summary criminal citations in 2011, and another instance where Plaintiff received a Notice of

Violation in 2022. (See Amended Complaint, ¶¶ 24-25, 29-34.) Plaintiff avers that it

successfully challenged summary criminal citations issued in 2011, and further avers that it

challenged the Notice of Violation issued in 2022. Plaintiff comes forward with nothing to

establish that the Notice of Violation issued in 2022 led to criminal charges. Therefore, by all

accounts, Plaintiff received notice and/or warning of criminal charges, and it was provided with

an opportunity to defend. It would also appear that Plaintiff prevailed by having criminal

citations dismissed after having a meaningful opportunity to be heard, so Plaintiff’s due process

claims fails because due process requires notice, an opportunity to be heard, and the right to

appeal to an impartial tribunal. FOP Lodge No. 5 v. City of Philadelphia, 267 A.3d 531, 549

(Pa. Cmwlth. 2021); Abbot v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (“At the core of

procedural due process jurisprudence is the right to advance notice of significant deprivations of

liberty or property and to a meaningful opportunity to be heard.”). Based on the facts as pled in

the Amended Complaint, Plaintiff received notice and was given an opportunity to tell its side of

the story.

Plaintiff’s procedural due process claims are equally deficient because it avers no facts to

establish that the actions of the Defendants did anything to frustrate its ability to seek relief under

Pennsylvania’s Eminent Domain Code. Plaintiff does not, for example, allege that it attempted

to and was unable to file a reverse condemnation action at any point in time during this saga that

lasted for more than a decade. Plaintiff fails to cite to any instances where it was deprived of due

process; therefore, these claims should be dismissed.

G. The Court will Dismiss Count IV of the Amended Complaint which sets Forth

Section 1983 Claims for Failure to Maintain the Stormwater Management System in

Accordance with Law and Regulation:

The Court will dismiss Count IV of the Amended Complaint which sets forth claims

brought under 42 U.S.C. § 1983 that are based on the legal theory that Defendants “[failed] to

maintain [the stormwater system] in accordance with law and regulations.” (Amended

Complaint ¶¶ 65-72.) Allegations asserted in Count IV of the Amended Complaint will be

dismissed because Plaintiff fails to plead facts to establish a deprivation of its rights under the

Constitution or federal law. Therefore, Plaintiff fails to establish a cognizable claim under

Section 1983.

Section 1983 provides a vehicle for individuals to adjudicate violations of rights secured

under federal constitutional or statutory law. Elmore v. Cleary, 399 F. 3d 279, 281 (3d Cir.

2005). However, Section 1983 “is not itself a source of substantive rights.” Id. To state a

Section 1983 claim, plaintiff must plead that defendant violated plaintiff’s federal rights that are

elsewhere specifically conferred and that violation of these rights caused injury. Elmore, 399 F.

3d at 281. See Maher v. Gagne, 448 U.S. 122, 129 (1980); Groman v. Township of Manalapan,

47 F.3d 628, 633 (3d Cir.1995); Kneipp v. Tedder, 95 F. 3d 1199, 1204 (3d Cir.1996). Plaintiff

must allege the deprivation of a specific constitutional right. McCurdy v. Dodd, 353 F. 3d 820,

826 (3d Cir. 2003). “One cannot go into court and claim a violation of § 1983 – for § 1983 by

itself does not protect anyone against anything.” Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600, 617 (1979).

Plaintiff does not cite to a single constitutional violation in Count IV of the Amended

Complaint. In response to Defendants’ motions to dismiss, Plaintiff cites to Pennsylvania state

court precedent that stands for the position that in relationship to sewage systems a governmental

entity can be found liable for the “actual work of construction or for failure to keep the work in

repair after it is completed. [Washington v. Johns, 474 A.2d 1199, 1201-02 (Pa.Commw. 1984)

citing Yulis v. Borough of Ebensburg, 128 A.2d 118, 120 (Pa. Super. Ct. 1956).] See also Cooper

v. Scranton City, 21 Pa. Superior Ct. 17, 19 (1902); Fair v. City of Phila., 88 Pa. 309, 311

(1879), 312; Haus v. Bethlehem Borough, 134 Pa. 12, 18 (1890); Siegfried v. So. Bethlehem

Borough, 27 Pa. Superior Ct. 456, 460 (1904); Ringwalt v. Atglen Boro, 49 Pa. Superior Ct. 517,

520 (1911).” (Response in Opposition to Commonwealth Defendants’ Motion to Dismiss page

6.)

The cases cited by Plaintiff do not stand for the proposition that it can bring a Section

1983 claim against Defendants based on the theory that they were negligent in installation and/or

maintenance of the stormwater system. To the contrary, “[P]roof of negligence alone is

insufficient to impose liability under section 1983.” Irvin v. Borough of Darby, 937 F. Supp.

446, 450 (E.D. Pa. 1996) (citing Davidson v. Cannon, 474 U.S. 344, 347 (1986); Daniels v.

Williams, 474 U.S. 327, 330 (1986)). Therefore, Count IV of the Amended Complaint will be

dismissed insofar as it asserts a non-cognizable claim under Section 1983.

H. The Court Declines to Exercise Supplemental Jurisdiction Over the State Law Claims

Asserted by Plaintiff:

Plaintiff asserts a variety of state law claims against Defendants; such as, malicious

prosecution, negligence for failure to maintain, negligence and tortious interference. The Court

will decline to exercise supplemental jurisdiction over the state law theories asserted by Plaintiff

in the Amended Complaint. The decision to exercise supplemental jurisdiction is within the

discretion of the court. 28 U.S.C. § 1367(c)(3) provides that district courts may decline to

exercise supplemental jurisdiction over a state law claim if the district court has dismissed all

claims over which it has original jurisdiction. When deciding whether to exercise supplemental

jurisdiction, “a federal court should consider and weigh in each case, and at every stage of the

litigation, the values of judicial economy, convenience, fairness, and comity.” City of Chicago v.

Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cahill, 484

U.S. 343, 350 (1988)). The Third Circuit has held that “where the claim over which the district

court has original jurisdiction is dismissed before trial, the district court must decline to decide

the pendent state claims unless considerations of judicial economy, convenience, and fairness to

the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109,

123 (3d Cir. 2000) (quoting Borough of West Miflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995)).

In non-diversity cases, such as the case sub judice, where the court grants summary

judgement or dismisses all federal claims before trial, the general rule is that a district court

should decline to exercise supplemental jurisdiction over the state law claims absent

“extraordinary circumstances.” Tully v. Mott Supermarkets, Inc., 540 F. 2d 187, 195 (3d Cir.

1976); Johnson v. Trans Union, LLC, No. 12-5272, 2013 U.S. Dist. LEXIS 71538, *12 (E.D. Pa.

May 21, 2013) (declining to exercise jurisdiction over state claims since federal claims did not

survive dismissal which eliminated original jurisdiction).

IV. CONCLUSION:

For these reasons, the Court will grant the motions to dismiss filed by the Defendants.

The Amended Complaint filed by Plaintiff will be dismissed with prejudice and without leave to

amend.

BY THE COURT:

/s/ John Milton Younge

Judge John Milton Younge