                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2006

Friends Residents v. St Thomas Dev Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2378




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                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 05-2378


 FRIENDS AND RESIDENTS OF SAINT THOMAS TOWNSHIP, INC., (FROST), a
 nonprofit corporation incorporated under the nonprofit laws of the Commonwealth of
Pennsylvania; MICHAEL A. URBAN, WINFRED L. WALLS; GLORIA S. SABERIN,
     as Representatives of the Class Composed of all Residents of Saint Thomas
                      Township, Franklin County, Pennsylvania,

                                                      Appellants

                                         v.

 ST. THOMAS DEVELOPMENT, INC., a for-profit corporation incorporated under the
laws of the Commonwealth of Pennsylvania; PETER DEPAUL, Director and President of
  the Corporation, in his corporate capacity; ANTHONY DEPAUL, Director, Secretary,
     and Treasurer of the Corporation, in his corporate capacity; DONNA DEPAUL-
          BARTYNSKI, Director, of the Corporation, in her corporate capacity;
  THE COMMONWEALTH OF PENNSLYVANIA; PEDRO A. CORTES, Secretary of
    the Commonwealth of Pennsylvania; JERRY PAPPERT, Attorney General of the
                              Commonwealth of Pennsylvania




                    Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                        (District Court Civil No. 04-cv-627)
                      District Judge: Honorable Yvette Kane


                     Submitted under Third Circuit LAR 34.1(a)
                                  March 7, 2006

              BEFORE: ROTH and GREENBERG, Circuit Judges, and
                       BUCKWALTER, District Judge*
                                  (Filed: April 10, 2006)


*Honorable Ronald L. Buckwalter, Senior Judge of the United States District Court for
 the Eastern District of Pennsylvania, sitting by designation.




                                        OPINION


BUCKWALTER, Senior District Judge.

             In this appeal, we consider whether the United States District Court for the

Middle District of Pennsylvania erred in granting Appellees’ Motions to Dismiss

Appellants’ Complaint by concluding that Appellants lacked standing; that the Eleventh

Amendment bars the suit against the Commonwealth of Pennsylvania, the Attorney

General of the Commonwealth and the Secretary of the Commonwealth; and, that

Appellants failed to state a claim under 18 U.S.C. § 1983 and § 1985. We will affirm the

judgment of the District Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

             On May 5, 2003, Appellee St. Thomas Development, Inc. (“Corporation”)1

purchased over 450 acres of land. Thereafter, the Corporation submitted a land


   1
       Appellees Peter DePaul, Anthony DePaul and Donna DePaul-Bartynski are
directors and officers of the St. Thomas Development, Inc. and will be referred to
collectively as “the Corporation” or “Corporate Appellees.” Additionally, the
Corporation was initially incorporated under the name St. Thomas Quarry, Inc. on May 1,
2003 but changed its named on May 9, 2003.
                                            2
development plan to the Township of Saint Thomas, Pennsylvania (“Township”). The

development plan sought authorization for the Corporation to develop a limestone quarry,

an asphalt plant and a concrete plant on 360 acres of land located within the Township.

              In response to the Corporation’s development plan, residents and land

owners in the Township formed Appellant, Friends and Residents of Saint Thomas

Township, Inc. (“FROST”).2 With the aid of FROST, on November 4, 2003, the

Township elected Frank Stearn, (“Stearn”), a member of FROST, as a write-in candidate

for Township Supervisor.3 Stearn ran on the platform that, as a Supervisor, he would

work to stop the Corporation’s development plan.

              On February 18, 2004, the Corporation sent a letter to the Chairman of the

Township’s Board of Supervisors. The letter “requested” that Stearn “recuse himself

from any and all actions taken by the [Township] Board of Supervisors on any and all

matters relating to or connected with [the Corporation]’s project.”4 (App. 151.) Citing

   2
       Two of FROST’s directors, Michael A. Urban and Winfred L. Walls, are also
named as Appellants. Urban and Walls, together with Township resident, Gloria S.
Saberin, serve as class representatives. Appellants state that the class includes “all natural
persons in the Township of Saint Thomas in Franklin County, Pennsylvania on February
18, 2004, who currently reside in the Township of Saint Thomas.” (App. 167, ¶ 2.) The
Court will refer to Urban, Walls, Saberin and FROST collectively as Appellants.
   3
       Stearn is not named as a party in this case.
   4
       Appellants characterize the letter as a “demand” to recuse Stearn from
participating in matters involving the Corporation. As noted by the District Court,
however, “nowhere in the letter do[es] the [Corporation] ‘demand’ that Mr. Stearn
recuse.” (App. 9, fn. 3.) The letter does “repeatedly ‘request[]’ that Mr. Stearn be
prevented from considering matters pertaining to the Corporation.” Id. The letter also
“clearly threatens litigation in the event such requests were not honored.” Id.
                                              3
Pennsylvania case law, the Corporation based the request for recusal upon Stearn’s “clear

bias concerning [the Corporation’s] project and his corresponding duties and legal

obligations as an elected public official in the capacity [as a] Supervisor.” Id. The

Corporation concluded that “[i]t would be far better [for Stearn to recuse himself] than to

litigate the matter.” Id.

              In his Affidavit, Stearn recounted three instances in which the

Corporation’s letter affected his position as a Township Supervisor. First, Stearn states

that the Chairman asked him to “send a letter to the Department of Environmental

Protection outlining the concerns of the Township Supervisors” regarding the

Corporation’s development plan. (App. 210.) Upon Stearn reminding the Chairman of

the Corporation’s letter, the Chairman withdrew his request for Stearn to send the letter.

On a second occasion, Stearn abstained from voting on issue that related to the

Corporation. Id. at 212. Finally, when another Supervisor asked Stearn to second a

motion to approve a request by the Corporation, Stearn again reminded the Supervisors of

the letter from the Corporation, and the Township Solicitor determined that the motion

could not be seconded or approved. Id.

              On February 27, 2004, Appellants submitted a formal request to Appellee,

the Attorney General for the Commonwealth of Pennsylvania (“Attorney General”).5 On



   5
       Thomas W. Corbett, Jr. succeeded named Appellee Gerald J. Pappert as Attorney
General. Pursuant to Fed. R. Civ. P. 25(d)(1), Attorney General Corbett is automatically
substituted as a party.
                                             4
March 8, 2004, Appellants also submitted a formal request to Appellee, the Secretary of

the Commonwealth of Pennsylvania (“Secretary”).6 In its formal request, Appellants

alleged that the Corporation exceeded its authority as a “lawful” business, by wielding

“illegitimately claimed rights to deny the fundamental rights of the residents of [the

Township] to self government.” (App. 69.) Appellants then requested that the Attorney

General and the Secretary “take immediate action to enjoin the violation of constitutional

rights of the residents of [the Township].” Id.

              When neither the Attorney General nor the Secretary responded to

Appellants’ request, Appellants filed a Complaint in the Middle District of Pennsylvania

on March 24, 20047 asserting that the Corporation “wielded State-conferred corporate

powers to prevent the residents’ elected representatives from governing the Township” in

violation of 42. U.S.C. §§ 1983 and 1985. (App. 162.) The Appellants also filed the

action against the Commonwealth of Pennsylvania for “bestow[ing] constitutional rights

and protections by natural person onto corporations through the adoption of 15 Pa. Cons.

Stat. § 1501 (2005) (“§ 1501”),”8 (App. 175, ¶¶ 59, 76, 89, 99), and the Attorney General

   6
       The Secretary of the Commonwealth, and named Appellee, is Pedro A. Cortes.
   7
       Appellants filed an Amended Complaint on April 12, 2004. In the proceeding
discussion, the Court will refer to the Amended Complaint as the “Complaint.”
   8
        Section 1501 states that “a business corporation shall have the legal capacity of
natural persons to act.” 15 Pa. Cons. Stat. § 1501 (2005). For example, under § 1502, the
Corporation has the power “[t]o sell, convey, exchange or otherwise dispose of all or any
part of its property and assets, or any interest therein, wherever situation.” Id. § 1502 (5).
        Though addressed by the District Court and Commonwealth Appellees, Appellants
have not raised or argued the constitutionality of § 1501 on appeal. Therefore, the Court
                                              5
and the Secretary for allegedly enabling and sanctioning “the constitutional violations

committed by the [Corporation]” and for refusing “to take action to enjoin them.” (App.

162).

              The Commonwealth Appellees filed a motion to dismiss the Complaint on

April 13, 2004. The Corporate Appellees filed a motion to dismiss the Complaint on

April 23, 2004. The Corporate Appellees also filed motion for sanctions under Rule 11

of the Federal Rules of Civil Procedure on May 19, 2004. Appellants then filed a Motion

to Certify the Class on June 21, 2004. On March 31, 2005, the District Court granted

both motions to dismiss, denied the motion for sanctions and denied as moot Appellants’

motion for class certification.

              Appellants raise the following issues on appeal:

              (1)     Whether the District Court erred in ruling that the
                      [Appellants] were not injured by the action of the
                      [Corporate Appellees], despite the [Corporate
                      Appellees’] threat to sue the [Appellants’] local
                      government that directly injured the [Appellants] by
                      forcing the removal of their Supervisor from the
                      decision-making process?

              (2)     Whether the District Court erred in holding that the
                      [Appellants] have failed to state a claim that the
                      [Corporate Appellees] corporate Defendants acted
                      under ‘color of state law’ despite the [Corporate
                      Appellees’] wielding of Commonwealth-bestowed
                      constitutional rights to threaten and intimidate the
                      [Appellants’] local government and its residents?




will not discuss this issue.
                                             6
              (3)    Whether the District Court erred in ruling that the
                     Eleventh Amendment limits the jurisdiction of the
                     federal court to hear the [Appellants’] [s]uit [w]hich
                     [s]eeks to [v]indicate [Appellants’] [f]undamental
                     [c]onstitutional [r]ights?9

(Appellants Br. at 1-2.)

II. JURISDICTION AND STANDARD OF REVIEW

              The District Court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. §

1343(a), and this Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

This Court has plenary review over the District Court’s decision to grant dismissal of



   9
        The Corporate Appellees argue that Appellants waive their § 1985(3) claim by
failing to include it in the issue section of their brief pursuant to Federal Rule of Appellate
Procedure 28. (Corporate Appellees Br. at 25.) Federal Rule of Appellate Procedure 28
requires, inter alia, that Appellants include in their brief, “(5) a statement of the issue
presented for review.” Fed. R. App. P. 28(5). Appellants included a statement of three
issues in its opening brief. The issues, however, do not reference Appellants’ argument
under § 1985(3). (Appellants Br. at 1-2.)
        The Corporate Appellees concede, however, that Appellants address their §
1985(3) claim in “summary two-paragraph argument” in their opening brief. (Corporate
Appellees Br. at 26.) The Court finds that the inclusion of a section on § 1985(3) in the
argument portion of Appellants brief is sufficient to preserve this issue on appeal. Nagel
v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not set forth in the
statement of issues presented or not pursued in the argument section of the brief, the
appellant has abandoned and waived that issue on appeal”). The Court also finds that
Appellant, albeit terse, discusses this issue enough to presume the issue is not waived.
Id. (declining to review issue mentioned “casually in one sentence”); Laborers’ Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived
unless a party raises it in its opening brief, and for those purposes ‘a passing reference to
an issue . . . will not suffice to bring that issue before this court’”) (quoting Simmons v.
City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991)). Finally, under Federal Rule of
Appellate Procedure 2, the Court has discretion to relax the requirements of Rule 28.
Fed. R. App. P. 2. Thus, the Court will address Appellants claim under § 1985(3).


                                              7
Appellants’ Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

and reviews the District Court’s decision de novo. Lum v. Bank of America, 361 F.3d

217, 223 (3d Cir. 2004). A motion to dismiss under Rule 12(b)(6) should be granted only

if, “accepting as true the facts alleged and all reasonable inferences that can be drawn

therefrom” there is no reasonable reading upon which the plaintiff is entitled to relief.

Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988).

III. DISCUSSION

              A.       Standing

              The District Court properly ruled that Appellants’ Complaint should be

dismissed because Appellants lack standing to bring the suit. As stated by the Supreme

Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), standing requires,

inter alia, that the Appellants must suffer an “injury in fact.”10 An “injury in fact” is “an

invasion of a legally protected interest which is (a) concrete and particularized, and (b)

actual or imminent and not merely conjectural or hypothetical.” Id. (citations and internal

quotations omitted).

              The District Court found that:


   10
        In addition to an “injury in fact,” there must be “a casual connection between the
injury and the conduct complained of - - the injury has to be ‘fairly . . . trace[able] to the
challenged action of the defendant, and not the result [of] the independent action of some
third party not before the court.’” Lujan, 504 U.S. at 560 (citations omitted). It must also
be “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Id. at 561 (citation omitted). Since the Appellants have failed to
allege an “injury in fact,” we decline to address the remaining elements required for
standing.
                                               8
              the catalyzing event around which [Appellants] construct this
              cause of action is the February 18, 2004 letter the [Corporation],
              through their counsel issued to the Township’s Board . . . . It
              was apparently because of this act that Mr. Stearn elected to
              recuse himself from considering or voting on matters concerning
              the Corporation, and it is allegedly because of this letter that
              [Appellants] believe their constitutional rights have been
              violated.

(App. 9.) The District Court concluded that Appellants failed to “allege a cognizable

injury in fact” because the Corporation’s “act of issuing the February 18, 2004 letter

simply did not abridge any constitutional right of any of the Plaintiffs.” Id. at 10-11.

Additionally, although Appellants categorize their feelings and concerns as “injuries,” as

a matter of law, such “injuries” are simply not recognized for purposes of standing.11

              Nonetheless, Appellants argue that “the threat of the commencement of

‘proceedings, either of a civil or criminal nature,’ which seek to interfere with the

exercise of constitutionally-protected rights, constitutes legal injury.” (Appellants Br. at

11) (citing Dombrowski v. Pfister, 380 U.S. 479 (1965); Steffel v. Thompson, 415 U.S.

459 (1974); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979); Pestrak

v. Ohio Elections Comm’n, 926 F.2d 573 (6th Cir. 1991)). Yet, as Corporate Appellees

note, each case cited by Appellants is distinguishable from the present case. For

example, in Dombrowski, the plaintiffs attempted to restrain government officials from



   11
       The District Court noted, the affidavits describe “subjective fears and anger
regarding the alleged powers and rights enjoyed by corporations, coupled with allegations
regarding personal feelings of disenfranchisement and concern for the future and health of
republican government.” (App 10.)
                                              9
prosecuting or threatening to prosecute them for alleged violations of the Louisiana

Subversive Activities and Communist Control Law and the Communist Propaganda

Control Law. 380 U.S. at 481. The Supreme Court stated that “so long as the statute

remains available to the State the threat of prosecutions of protected expression is a real

and substantial one.”12 Id. at 494. Unlike the Appellants in Dombrowski, “there is no

allegation of any action of any kind being taken or threatened against any of the

[Appellants], let alone any threatened criminal prosecution.” (Corp. Appellees’ Br. at

13.) Although the letter from the Corporation to the Township Board threatens litigation

against the Township if Stearn failed to recuse himself, litigation is not threatened against

any of the Appellants.13

              Appellants fare no better in their attempt to categorize § 1501, as opposed

to the threat of litigation, as the basis for their “injuries.” The Supreme Court in Babbitt

noted that appellants “must demonstrate a realistic danger of sustaining a direct injury as

a result of the statute’s operation or enforcement.” 443 U.S. at 298. Here, § 1501 does


   12
       Likewise in Steffel, the plaintiff was threatened with prosecution under a criminal
trespass statute after the manager of a shopping center complained to police about
petitioner's distribution of political handbills. 415 U.S. at 454.
   13
       Additionally, Appellants standing argument fails because Appellants are not
attempting to assert their own rights because neither the statute nor the letter is preventing
Appellants’ participation in Township governance. In Pestrak the Sixth Circuit held that
the plaintiff, in order to show standing, “must be asserting his own rights and interests not
solely those of third parties.” 926 F.2d at 577 (citing Sec’y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 955 (1984)). Appellants are possibly attempting to assert the
rights of Stearn to be allowed to participate in matters concerning the Corporation in his
position as a Supervisor, however, Stearn was not named as a Plaintiff in this case.
                                             10
not result in a “direct injury” to Appellants because as the Commonwealth Appellees

note, “[t]his section does no more than permit a corporation to act as a legal entity

separate from its stockholders and to be the legal owner of its property.” (Commw.

Appellees’ Br. at 15) (citing Cole v. Price, 758 A.2d 231 (Pa. Super. 2000)).

               We agree with the District Court that Appellants cite “no persuasive legal

authority in support of their contention that the act of issuing a letter by a corporation to

influence - or even threaten - an elected municipal body or its members is

unconstitutional.” Id. at 11. Appellants also fail to cite any persuasive legal authority

that the threat of litigation against a third-party constitutes an “injury in fact” or that an

“injury in fact” occurs from a statute that fails to result in direct injury upon Appellants.

               B.     Eleventh Amendment Immunity

               In addition to ruling that Appellants lacked standing, the District Court

properly ruled that Appellants’ Complaint should be dismissed against the

Commonwealth Appellees under the Eleventh Amendment of the United States

Constitution.14 Appellants argue that the District Court erred in dismissing their claims




   14
        The Eleventh Amendment states:

        The Judicial Power of the United States shall not be construed to extend to any
        suit in law or equity commenced or prosecuted against one of the United States
        by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. AMEND. XI.
                                               11
against the Commonwealth Appellees15 for three reasons: (1) the plain language, original

intent, and history of the Eleventh Amendment bars only actions brought by citizens of

another state and not by citizens of the state being sued; (2) by ratifying the Constitution,

Pennsylvania consented to federal review of its citizens’ claims of Pennsylvania’s denial

of their constitutional rights, and (3) the District Court failed to examine the fundamental

nature of Appellants’ constitutional injuries. (Appellants’ Br. at 26, 31, 39.)

              Appellants’ first argument must fail. Appellants argue that the plain

language, original intent and history of the Eleventh Amendment do not bar actions in

federal court by citizens of the state being sued. Appellants attempt to draw support for

their argument by citing cases which pre-date the Supreme Court’s controlling decision in

Hans v. Lousiana. 134 U.S. 1 (1890). (Appellants’ Br. at 27) (citing Cohens v. Virginia,

19 U.S. 264 (1821); Osborne v. Bank of the United States, 22 U.S. 738 (1824)). As noted

by the District Court, “although the terms of the amendment do not specifically proscribe

suits against a state by its own citizens, the Supreme Court has held that states are

immune from such suits brought in federal court.” (App. 12) (citing Hans, 134 U.S. at



   15
       The Court notes that state officials, such as the Secretary and the Attorney
General, acting in their official capacities are routinely afforded Eleventh Amendment
immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989) (finding that “a
suit against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office” and “as such, it is no different from a suit
against the State.”) Appellants do not allege that the Secretary or the Attorney General
acted outside the scope of their official capacities. For purposes of analysis, the Secretary
and Attorney General will be treated as one in the same with the Commonwealth.


                                              12
10); see also Fed. Mar. Com’n v. South Carolina State Ports Auth., 535 U.S. 743, 754

(2002) (noting that the Supreme Court has consistently “held that the sovereign immunity

enjoyed by the States extends beyond the literal text of the Eleventh Amendment”); Bd.

of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (finding that the “ultimate

guarantee of the Eleventh Amendment” is to protect non-consenting States from suits by

private individuals in federal court); Employees of the Dep’t of Pub. Health & Welfare v.

Dep’t of Pub. Health & Welfare, 411 U.S. 279, 280 (1973) (stating that “it is established

that an unconsenting State is immune from suits brought in federal courts by her own

citizens as well as by citizens of another State”).

              Appellants concede that courts have held that the Eleventh Amendment

provides states with broad immunity but assert that “the underpinnings of those cases

have been challenged . . . .” (Appellants’ Br. at 26) (citing Welch v. State Dep’t of

Highways, 483 U.S. 468 (1987)). Appellants also cite extensive historical and legal

scholarship as support for their interpretation of the Eleventh Amendment. (Appellants’

Br. at 26-30.) Despite Appellants perceived validity of the dissent in cases such as Welch

and the plethora of scholarship on this issue, Appellants overlook the words of the Welch

majority, which clearly state that:

              [t]he rule of law depends in large part on adherence to the
              doctrine of stare decisis . . . . It follows that ‘any departure from
              the doctrine of stare decisis demands special justification.’
              Although the doctrine is not rigidly observed in constitutional
              cases, ‘we should not be . . . unmindful, even when
              constitutional questions are involved, of the principle of stare
              decisis . . . .

                                              13
Welch, 483 U.S. at 478 (citations omitted) (emphasis added). Although Appellants argue

that they have an “unprecedented case,” Appellants fail to articulate any “special

circumstance” that necessitates overruling over a hundred years of precedent since Hans.

              Next, Appellants’ second argument also fails. Appellants argue that

Pennsylvania consented to suits by its own citizens in federal court by ratifying the

Constitution. Even though courts have interpreted the Eleventh Amendment to provide

broad sovereign immunity for states, a state can waive immunity by consenting to suit.16

Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775, 779 (1991). State

consent, however, is construed narrowly and exists only where the State “makes a ‘clear

declaration’ that it intends to submit itself” to a court’s jurisdiction. Coll. Sav. Bank v.

Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). In the

absence of any “clear declaration” by the Commonwealth Appellee indicating the

Commonwealth’s waiver of immunity in this case, the District Court was correct in

holding that Eleventh Amendment immunity applies. Further, as Commonwealth

Appellees note, the Supreme Court expressly stated that states did not surrender their

immunity from private suits under the Eleventh Amendment by ratifying the Constitution.


   16
        The Supreme Court has also held that a state’s immunity can be abrogated by
Congress, Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666, 670 (1999), and that the Eleventh Amendment allows suits against state
officials in their official capacities where Plaintiff seeks prospective, injunctive relief for
violation of federal law. Ex Parte Young, 209 U.S. 123 (1908). Appellants have not
asserted that the Commonwealth’s Eleventh Amendment immunity has been abrogated by
Congress or that they seek “prospective, injunctive” relief from the Secretary and/or the
Attorney General.
                                              14
Fed. Mar. Com’n, 535 U.S. at 751-52.

               Finally, Appellants’ third argument also fails. Appellants argue that the

District Court erred in its Eleventh Amendment analysis by failing to examine the

fundamental nature of Appellants’ constitutional injuries. As discussed above, Eleventh

Amendment immunity is well-established and broad, subject only to a few noted

exceptions. The proper focus for the District Court in determining the scope of Eleventh

Amendment immunity is an examination of the applicability of those exceptions, which

the District Court did.17

               C.     Section 1983 Claim

               The District Court properly ruled that Appellants failed to state a claim

under 42 U.S.C. § 1983.18 In deciding whether state action is present in the context of a

claim brought under § 1983, the court determines whether “there is a sufficiently close

   17
        Appellants state that because they “have already turned to the Commonwealth
itself for a remedy, by petitioning the State’s Attorney General and Secretary of State for
relief” and “those State officials have refused to act,” they are “remediless absent federal
intervention.” (Appellants’ Reply at 31.) However, a complaint was filed in the Court of
Common Pleas of Franklin County, Pennsylvania. The case, brought by the Township
and Stearn, seeks “a declaratory judgment as to whether Stearn is required to recuse
himself from matters related to the approvals being sought by the [Corporate
Defendants].” (Corporate Appellee’s Br. at 6.)
   18
        Section 1983 states:

        [e]very person who, under color of any statute, ordinance, regulation, custom
        or usage of any State or Territory . . . subjects, or causes to be subjected, any
        citizen of the United States or other person within the jurisdiction thereof to
        the deprivation of any rights, privileges, or immunities secured by the
        Constitution and laws, shall be liable to the party injury in an action at law.


                                               15
nexus between the State and the challenged action of the regulated entity so that the

action of the latter may be fairly treated as that of the State itself.” Blum v. Yaretsky, 457

U.S. 991, 1004 (1982) (quotation omitted). Such a nexus can be established if a state has

exercised “coercive power or has provided such significant encouragement . . . that the

choice must in law be deemed to be that of the State.”19 Id. at 1004. Yet, “mere approval

of or acquiescence in the initiatives of a private party is not sufficient to justify holding

the State responsible for those initiatives.” Id. at 1004-1005.

              The District Court dismissed Appellants § 1983 claim because Appellants

“offer[ed] no allegations in the Complaint that even suggest a ‘sufficiently close nexus’

between the Commonwealth and the Corporation.” (App. 22) (citing Moose Lodge No.

107 v. Iris, 407 U.S. 163 (1972); Jackson v. Metro. Edison Co., 419 U.S. 345 (1974)).

The District Court found that the “Complaint indicates only that the Corporation was

chartered in Pennsylvania and that [Commonwealth Appellees] Pappert and Cortes did

not respond to [Appellants’] letters demanding that they enjoin the Corporation from

acting.” (App. 14.) The District Court concluded that “neither of these actions or

inactions by the Commonwealth or its officials can be interpreted as ‘significant

encouragement’ from the Commonwealth. At most, [Appellants’] allegations suggest that

the Commonwealth may have acquiesced in the Corporation’s actions by not responding


   19
      For example, “the required nexus may be present if the private entity has exercised
powers that are traditionally the exclusive prerogative of the State.” Blum, 457 U.S. at
1005 (citation and internal quotations omitted). Appellants do not allege that the
Corporation exercised State exclusive powers.
                                              16
to [Appellants’] demands.” Id. Yet, the District Court concluded that “Blum clearly

instructs that such acquiescence is insufficient to hold the Commonwealth responsible for

the any alleged injury cause by the Corporation’s letter to the Township.” Id..

              Nonetheless, appellants argue that the District Court erred by

“misinterpreting - and then misapplying - the [Appellants’] assertion that the Corporate

Defendants acted ‘under color of state law’ when they wielded State-conferred rights

against the [Appellants’] Township government.”20 (Appellants’ Br. at 16.) Yet,

Appellants “acknowledge the extensive modern jurisprudence under which corporations

are not treated as state actors” and seem to argue not that the District Court erred in its

interpretation and application but for “a re-evaluation of that ‘settled law.’” Id. at 20.

Despite citing a plethora of cases in which the federal judiciary has recognized

corporations to be “creations of the state” or “creatures of the state,” Appellants fail to

articulate why this Court should depart from the well-founded precedent upon which the

District Court relied.

              D.         Section 1985 Claim

              The District Court also properly ruled that Appellants failed to state a claim

under 42 U.S.C. § 1985(3).21 In order to state a claim under §1985(3), a plaintiff must

   20
         The “state-conferred rights” to which Appellants refer are enunciated in § 1501.
   21
        Section 1985(3) provides:

        If two or more persons in any State or Territory . . . conspire . . . for the
        purpose of depriving, either directly or indirectly, any person or class of
        persons of the equal protection of the laws, or of equal privileges and
                                              17
allege: (1) a conspiracy of two or more persons; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly, any person or class of

person to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and

(4) an injury to person or property or the deprivation of any right or privilege of a citizen

of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

              Notably, the Supreme Court has limited the reach of claims under §1985(3).

The Supreme Court initially noted that in order to assert a claim under §1985(3) “there

must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

Subsequent Supreme Court decisions have noted that “whatever may be the precise

meaning of ‘class’ for purposes of Griffin’s speculative extension of §1985(3) beyond

race, the term unquestionably connotes something more than a group of individuals who

share a desire to engage in conduct that the §1985(3) defendant disfavors.” Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 269 (1993); see also United Bhd. of

Carpenters & Joiners of America v. Scott, 463 U.S. 825, 828-829 (expressing skepticism

that the statue forbids “wholly nonracial, but politically motivated conspiracies” and

concluding that commercial or economic animus could not form the basis for a cognizable




       immunities under the laws . . . the party so injured or deprived may have an
       action for the recovery of damages, occasioned by such injury or deprivation,
       against any one or more of the conspirators.

42. U.S.C. §1985(3).
                                             18
§ 1985(3) claim). The Third Circuit in Lake further limited § 1985(3) claims to

“invidious discrimination” predicated on discrimination against individuals with

“immutable characteristics” such as race, gender or mental handicap. 112 F.3d at 687.

              In the present case, the District Court concluded that although Appellants

adequately alleged a conspiracy,22 Appellants’ claim under 42 U.S.C. §1985(3) “must fail

because [Appellants] do not constitute a protected class.” (App. 24.) The Appellants

state that their “class” consists of “all natural persons residing in the Township of Saint

Thomas in Franklin County, Pennsylvania, on February 18, 2004, who currently reside in

the Township” and the class deals with “issues related to governance of [the Township].”

(App. 80, ¶ 22, 24.) Without further explanation, in its opening brief Appellants’ only

contention is that the District Court erred in dismissing Appellants’ claim under §1985(3)

because “courts, including the U.S. Supreme Court, have declared that classifications

based on political activity may constitute an actionable claim under §1985.” (Appellant’s

Br. at 42) (citing Snowden v. Hughes, 321 U.S. 1 (1944); reh’g denied, 321 U.S. 804

(1944); Nixon v. Herdon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932);



   22
        The District Court concluded that the Appellants adequately alleged a conspiracy
because Appellants alleged in their complaint that the individual Corporate Appellees
“conspired . . . to wield the State-conferred powers of the [Corporation] to violate the
constitutional rights of the [Appellants.]” (App. 24.) Although the Corporation and its
officers share an identity, Robison v. Canterbury Vill., Inc., 848 F.2d 424, 431 (3d Cir.
1988), and a conspiracy requires two or more persons, Burden v. Wilkes-Barre Area Sch.
Dist., 16 F. Supp. 2d 569, 573 (M.D. Pa. 1998), the District Court in construing the
complaint in favor of Appellants, found that the Complaint adequately alleged that the
officers were acting in their individual, rather than corporate capacities.
                                             19
Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973); Keating v. Carey, 706 F.2d 377 (2nd

Cir. 1983)). In light of the Supreme Court’s decision in Bray and further clarification of

the scope of §1985(3) in the Third Circuit’s decision in Lake, the cases that Appellants

cite are unpersuasive.

              In its Reply, Appellants also argue that “the District Court improperly

dismissed the [Appellants’] Section 1985 claims, because the District Court’s ‘strongly

suggest’ standard does not rise to the level of review required for a ruling on a Motion to

Dismiss.”23 (Appellants’ Reply at 33.) Regardless of how the District Court

characterized the precedent, under Bray, Appellants must allege “something more” than

simply a group of individuals who share in their disagreement regarding the political

influence of the Corporation in their Township. As noted, the Third Circuit defined this

“something more” to include “immutable characteristics” such as race, gender or mental

handicap. Appellants fail to assert a commonality of an immutable characteristic

amongst the class members, such as race, gender or mental handicap, in their Complaint.

              Additionally, other than quoting Lake for the proposition that “Section

1985(3) must be ‘subject to reinterpretation as times and circumstances require’”

(Appellants’ Reply at 34) (quoting Lake, 112 F.2d at 687), Appellants fail to persuade, or

even argue, why § 1985(3) should be extended to include Appellant’s “discrete political

jurisdiction,” particularly in the absence of an immutable characteristic. (Appellants’


   23
       In its opinion, the District Court concluded that “Griffin, Scott, Bray and Lake
strongly suggest that [Appellants] have no recourse under section 1985(3).” (App. 25.)
                                            20
Reply at 34).

IV. CONCLUSION

                For the foregoing reasons, the judgment of the District Court in granting

Appellees’ Motions to Dismiss Appellants’ Complaint is affirmed.




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