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Home My WebLink About97-0489 equityLJUBISA STANKOVIC and MIRA STANKOVIC, Plaintiffs Vo UPPER ALLEN TOWNSHIP BOARD OF SUPERVISORS, RAY E. TRIMMER, JOHN F. : ALLISON, VIRGINIA M. : ANDERSON, WILLIAM F. KANE,: GERALD F. KOONS, in their : Individual & official capacities, : ASHCOMBE PRODUCTS : COMPANY, VERNON E. : ANDERSON and RONALD I. : STERN, indiv, idually and t/d&/a COUNTRY SQUARE, a Pennsylvania partnership, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 97-0489 EQUITY · CIVIL ACTION- EQUITY · IN RE: PREI~IMINARY OBJECTIONS OF DEFENDANTS... UPPER ALLEN TOWNSHIP BOARD OF COMMISSIONERS BEFORE HOFFER, P.J., OLER, GUIDO, JJ. AND NOW, this ORDER OF COURT day of APRIL, 2001, for the reasons set forth in the accompanying opinion, the demurrer of the inaividual defendants Ray E. Trimmer, John F. Allison, Virginia M. Anderson, William F. Kane, and Gerald F. Koons to Count III of plaintiffs' complaint is GRANTED and said Count is dismissed with prejudice as to those defendants. Further, the demurrer of defendant Upper Allen Township Board of Commissioners to Count III of plaintiffs' complaint is GRANTED. Provided, however, that plaintiffs are granted leave to file, within twenty (20) days, a pleading amending Count III of their complaint as it relates to defendant Upper Allen Township Board of Commissioners. By the Court, Edward E. Guido, J. William Andring, Esquire David W. DeLuce, Esquire Stephen L. Grose, Esquire :sld LJUBISA STANKOVIC and MIRA STANKOVIC, Plaintiffs V, UPPER ALLEN TOWNSHIP BOARD OF SUPERVISORS, RAY E. TRIMMER, JOHN F. : ALLISON, VIRGINIA M. : ANDERSON, WILLIAM F. KANE,: GERALD F. KOONS, in their : Individual & official capacities, : ASHCOMBE PRODUCTS COMPANY, VERNON E. ANDERSON and RONALD I. STERN, individually and t/d~/a COUNTRY SQUARE, a Pennsylvania partnership, Defendants · 1N THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 97-0489 EQUITY · CIVIL ACTION- EQUITY · · · · IN RE' PRELIMINARY OBJECTIONS OF DEFENDANTS UPPER ALLEN TOWNSHIP BOARD OF COMMISSIONERS BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OP1NION AND ORDER OF COI. JRT The plaintiffs have filed a multi-count complaint against the various defendants. Currently before us are the preliminary objections of Defendants Upper Allen Township Board of Supervisors, Ray E. Trimmer, John F. Allison, Virginia M. Anderson, William F. Kane and Gerald F. Koons.~ The preliminary objections are in the nature of a demurrer to Count III of the complaint as it relates to both the Board of Commissioners and to the individual Commissioners. Plaintiffs have conceded that the demurrer should ! The caption of this action, as well as the heading to the preliminary objections in question, improperly labels the Upper Allen Township Board as a Board of Supervisors when, in fact, it is a Board of Commissioners. We will hereinafter use the correct appellation. NO. 97-0489 EQUITY be granted insofar as it relates to the Commissioners individually. The only issue remaining is whether Count III of the complaint sets forth a viable cause of action against .the Upper Allen Township Board of Commissioners. For the reasons hereinafter set forth, we are satisfied that it does not. FACTUAL BACKGROUND Count III of the complaint alleges a violation of plaintiffs' substantive due process rights as guaranteed by 42 U.S.C. § 1983.2 The substance of the allegations against the Board is that it acted in an arbitrary and capricious manner in approving the codefendants' subdivision plan and allowing them to construct and place-drainage pipes along a township easement traversing plaintiffs' property.3 DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. 42 U.S.C. § 1983 provides, in relevant part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any fights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured... Complaint paragraphs 56- 58. NO. 97-0489 EQUITY Allegheny Coun.ty v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402,408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinzi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Applying the above standard to the case before us, we are satisfied that the demurrer to Count III should be granted. In order for a substantive due process claim to be made out, plaintiffs must establish that "the government's actions were not rationally related to a legitimate government interest or were in fact motivated by bias, bad faith or improper motive." Sameric Corp. Del., Inc. v. City of Philadelphia, 142 F. 3d 582, 590 (3d Cir. 1998) quoting from Parkway Garage, Inc. v. City of Philadelphia, 5 F. 3d 685,692 (3d Cir. 1993). Plaintiffs concede, as they must, that the approval of the subdivision plan was rationally related to a legitimate government interest..They also concede that: there exists a legitimate dispute as to whether the easement granted to the Township authorizes the use of the easement for sewage and storm water drainage from the (codefendants') development. Therefore, Plaintiffs agree that a substantive due process claim may not be predicated solely on an assertion that, by approving the subdivision and land development plan, the Township thereby authorized the use of the easement for sewage and storm water from the (codefendants') development.4 According to plaintiffs, the 1983 violation occurred when the Township failed to require the codefendants to strictly comply with the terms of the easement by restoring the land to its prior conditions. The failure to allege that the Board's actions were the result of bias, bad faith or some other improper motive precludes recovery under Section 1983. See Omnipoint 4 Plaintiff's brief pages 3- 4. 'NO. 97-0489 EQUITY Communications, Inc. v. Penn Forest Tp... 42 F. Supp. 2d 493,508 (M.D. Pa. 1999). Therefore, we will grant the demurrer to Count III of plaintiffs' complaint. ORDER OF COURT AND NOW, this 11 xi~ day of APRIL, 2001, for the reasons set forth in the accompanying opinion, the demurrer of the individual defendants Ray E. Trimmer, John F. Allison, Virginia M. Anderson, William F. Kane, and Gerald F. Koons to Count III of plaintiffs' complaint is GRANTED and said Count is dismissed with prejudice as to those · defendants. Further, the demurrer of defendant Upper Allen Township Board of Commissioners to Count III of plaintiffs' complaint is GRANTED. Provided, however, that plaintiffs are granted leave to file, within twenty (20) days, a pleading amending Count III of their complaint as it relates to defendant Upper Allen Township Board of Commissioners. By the Court, /s/Edward E. Guido EdWard E. Guido, J. William Andring, Esquire David W. DeLuce, Esquire Stephen L. Grose, Esquire 'sld