IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GOODFELLAS, INC., et al.,

CIVIL ACTION NO. 3:15-CV-1633

(JUDGE CAPUTO)

Plaintiffs,

v.

JEFFREY DUNKEL, et al.,

Defendants.

MEMORANDUM

Presently before the Court is a Motion to Dismiss (Doc. 13) Plaintiffs’ Amended

Complaint for failure to state a claim upon which relief may be granted filed by Defendants

Jeffrey Dunkel, Harry Haughney, Jr., Jennifer Raess, Michelle Stephenson, and John

McCord (collectively, the “Defendants”). Plaintiffs assert causes of action under 42 U.S.C.

§ 1983 against the Defendants in both their individual and official capacities, alleging a

claim for: (1) unlawful seizure of personal property in violation of the Fourth Amendment

against Defendant Dunkel; (2) malicious prosecution in violation of the Fourth Amendment

against each Defendant; (3) selective enforcement of the Amusement Permit Ordinance in

violation of the Equal Protection Clause of the Fourteenth Amendment against each

Defendant; (4) a violation of Fourteenth Amendment substantive due process rights against

each Defendant; and (5) failure to intervene against each Defendant. Additionally, Plaintiffs

assert state-law causes of action, alleging a claim for: (1) conversion against Defendant

Dunkel; and (2) malicious prosecution against each Defendant.

For the reasons detailed below, Defendants’ Motion to Dismiss Plaintiffs’ Amended

Complaint will be GRANTED in part and DENIED in part. 

I. Background

The facts as set forth in Plaintiffs’ Amended Complaint are as follows: 

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Plaintiff Deborah Glauda is the owner of Plaintiff Goodfellas, Inc. (“Goodfellas”), a

café, bar, and music venue located in Mount Carbon, Pennsylvania (“Mount Carbon” or the

“Borough”). (Am. Compl. ¶¶ 4-5, Doc. 12.) Plaintiff Michael Glauda is an employee of, and

promoter for, Goodfellas. (Id. ¶ 6.) Defendants in this action are Borough Mayor Jeffrey

Dunkel, and Borough Councilmembers Harry Haughney, Jr., Jennifer Raess, Michelle

Stephenson, and John McCord, each of whom is sued in their individual and official

capacities.1(Id. ¶¶ 7-16.) Plaintiffs’ instant dispute concerns their interaction with the various

governing officials of the Borough of Mount Carbon. Specifically, Plaintiffs allege that the

Borough’s Mayor and Councilmembers took actions under color of state law with a bad faith

intent to harm Plaintiffs’ business. (Id. ¶ 1.) 

Defendant Harry Haughney, Jr. (“Haughney”) is the Borough Council President. (Id.

¶ 13.) In addition to his Council position, Haughney also has an ownership interest in a

competing local bar called Julian’s Tavern. (Id. ¶ 17.) Plaintiffs allege that as far back as

June 2001, Haughney attempted to orchestrateGoodfellas’s demise by indirectly petitioning

the Liquor Control Board (“LCB”) to not renew Plaintiffs’ liquor license–an effort that was

ultimately unsuccessful. (Id. ¶ 18.) Additionally, in 2003 Plaintiffs obtained approval from the

Borough to build an addition to their bar, which included a holding tank. (Id. ¶ 19.) However,

despite having obtained proper permits and approval for the holding tank, Plaintiffs were

cited by the Borough for having such a tank. (Id.) Plaintiffs successfully defeated said

citation before a local magistrate. (Id.) Furthermore, between 2005 and 2007, Defendant

Mayor Jeffrey Dunkel (“Dunkel” or “the Mayor”) levied an entertainment tax on Plaintiffs

1 Because a § 1983 action is properly pleaded against a municipality either by

naming the municipality itself or by naming a municipal official in his or her

official capacity, the Court liberally construes Plaintiffs’ claims against the

Defendants in their official capacities as claims against the Borough of Mount

Carbon itself. See, e.g., Mahan v. Huber, 2010 WL 749808, at *4 (D. Colo. Mar.

2, 2010). 

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totaling between $1800.00 and $2500.00–a tax that is allegedly illegal because it was not

advertised for three consecutive weeks, in violation of the rules promulgated by the

Pennsylvania General Assembly. (Id. ¶ 20.) Plaintiffs suggest these interactions reveal that

Borough governing officials have been targeting them via official actions for multiple years.

(See id. ¶ 21.) 

In November 2013, Deborah and Michael Glauda (“the Glaudas”) obtained a guitar

from a music store which became the property of Goodfellas. (Id. ¶ 22.) That same month,

the Glaudas secured the signature of notable musician Bret Michaels on the guitar, with the

intent to auction the signed guitar at a fundraiser event to be held at Goodfellas to benefit

the Borough Fire Company. (Id. ¶ 23.) The fundraiser was held on November 17, 2013, and,

after a closed bid auction, Mayor Dunkel proclaimed that the event did not raise sufficient

funds and took possession of the guitar without Plaintiffs’ permission. (Id. ¶ 24.) Despite

Plaintiffs’ repeated requests for the Mayor to return their property and multiple complaints

made to the Borough Solicitor, Dunkel refused to return the guitar. (Id. ¶¶ 25, 29.) The

Glaudas had arranged for Michaels to publicly endorse Goodfellas and announce how the

auctioned guitar benefitted the Fire Company at 11:00 A.M. on April 25, 2014. (Id. ¶ 26.)

The Mayor was aware of this press event and withheld returning the signed guitar to

Plaintiffs until the evening of April 25, 2014, approximately five months after he took the

item. (Id. ¶¶ 27, 29.) Due to the Mayor’s actions, Michaels cancelled his endorsement and

press event. (Id. ¶ 28.) 

On March 11, 2014, Defendants enacted Ordinance 2014-1 known as The Mt.

Carbon Amusement Permit Ordinance (“Amusement Permit Ordinance” or “Ordinance”).

(Id. ¶ 30; Def.’s Br. in Supp. Ex. A, Doc. 14-2.) The Ordinance provides that “[n]o

Amusement Organizer shall stage, organize, offer, produce, provide, conduct, arrange or

display an Amusement in the Borough without obtaining a permit from the Borough

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therefore.” (Def.’s Br. in Supp. Ex. A. § 4(A).) Individual permits cost $25, and an annual

permit costs $10. (Id. § 4(D).) Parties convicted of violating the Amusement Permit

Ordinance must pay a fine between $100 and $1000, “and/or be sentenced to imprisonment

either as a sanction or for failure to pay fines and costs for up to 90 days per violation.” (Id.

§ 9(B).) Plaintiffs mailed payment to the Borough for an annual permit in early April 2014.

(Am. Compl. ¶ 31.) But despite receiving Plaintiffs’ permit payment, on May 13, 2014,

Defendants voted to enforce the Ordinance against Plaintiffs for events that occurred at

Goodfellas between April 5, 2014 and June 14, 2014. (Id. ¶ 33.) At the time of this vote,

Defendant Haughney was President of the Borough Council and also possessed an

ownership interest in Julian’s Tavern, one of Goodfellas’s competitors. (Id. ¶ 51.) On or

around July 3, 2014, fourteen (14) allegedly improper citations signed by Mayor Dunkel

were issued to the Glaudas for their purported violation of the Amusement Permit

Ordinance, five (5) naming Deborah Glauda as the violating party, and nine (9) naming

Michael Glauda as the violating party. (Id. ¶¶ 34-48.) During this time, Defendant Haughney

was never cited for violations of the Amusement Permit Ordinance despite the fact that

Julian’s Tavern hosted events that were classified as “amusements” under the Ordinance

without the requisite permit. (Id. ¶¶ 50, 53-55.) 

Plaintiffs further allege that in July 2014, Mayor Dunkel stated to an unidentified party

that he intended to “issue as many citations as he could to shut Plaintiffs’ bar down.” (Id. ¶

58.) Additionally, in August 2014, Haughney told TracySullivan, the Borough Secretary, that

“he would get even with [Plaintiffs] by having as many citations as possible levied upon

them.”(Id. ¶ 59.) Haughney subsequently denied knowing Ms. Sullivan, and then proceeded

to confront her at work and tell her to not appear as a witness on behalf of Plaintiffs in their

upcoming hearing contesting the fourteen citations. (Id. ¶¶ 60-61.) In September 2014,

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Plaintiffs defeated all fourteen citations for violations of the Amusement Permit Ordinance

before a local magistrate. (Id. ¶ 56.)

On November 11, 2014, Defendants enacted Ordinance 2014-4, which amended the

definition of “amusements” under the original Amusement Permit Ordinance (the

“Amendment”). (Id. ¶ 57; Def.’s Br. in Supp. Ex. B, Doc. 14-3.) The Amendment expanded

the exceptions to the original Amusement Permit Ordinance, excluding from the permit

requirement any amusement staged, organized, produced, provided, conducted, arranged,

or displayed by: (1) an emergency services provider; (2) a residential establishment for

which no admission fee is charged; and (3) a commercial establishment if the amusement

is constantly available at the establishment and no admission fee is charged specifically for

access to the amusement. (Def.’s Br. in Supp. Ex. B. § 1.) This Amendment purportedly

sought to exclude Defendant Haughney’s bar (Julian’s Tavern) from the permit requirement

and specifically target Goodfellas (Am. Compl. ¶ 57), although Plaintiffs’ Amended

Complaint fails to state how this Amendment excludes Julian’s Tavern. 

III. Legal Standards

A. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,

in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.

R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to

determining if a plaintiff is entitled to offer evidence in support of her claims. See

Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not

consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of

establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United

States, 220 F.3d 169, 178 (3d Cir. 2000).

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A pleading that states a claim for relief must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The

statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual

allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory

statements will not do; “a complaint must do more than allege the plaintiff's entitlement to

relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint

must “show” this entitlement by alleging sufficient facts. Id. While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he touchstone of the pleading

standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)

identifying the elements of the claim, (2) reviewing the complaint to strike conclusory

allegations, and then (3) looking at the well-pleaded components of the complaint and

evaluating whether all of the elements identified in part one of the inquiry are sufficiently

alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the

complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible

on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a

reasonable expectation that discovery will reveal evidence of’” each necessary element.

Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.

at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

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“When there are well-pleaded factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

In deciding a motion to dismiss, the Court should consider the complaint, exhibits

attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”

documents when the plaintiff's claims are based on the documents and the defendant has

attached copies of the documents to the motion to dismiss. Pension Benefit Guar. Corp.,

998 F.2d at 1196. The Court need not assume that the plaintiff can prove facts that were

not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,

263 & n.13 (3d Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions,’”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).

B. Section 19832

Section 1983 does not, by its own terms, create substantive rights. Rather, it provides

remedies for deprivations of rights established elsewhere in the Constitution or federal law.

Kneipp v. Tedder, 95 F. 3d 1199, 1204 (3d Cir. 1996). Therefore, in order to establish a

claim under § 1983, two criteria must be satisfied: First, the conduct complained of must

have been committed by a person acting under color of state law. Sameric Corp. of Del.,

2

 42 U.S.C. § 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress....

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Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.1998). Second, the conduct must deprive

the plaintiff of rights secured under the Constitution or federal law. Id.

IV. Discussion

Plaintiffs filed their Amended Complaint on November 23, 2015. (Doc. 12.) The

Amended Complaint asserts the following claims pursuant to 28 U.S.C. § 1983: (1)

unlawful seizure of personal property in violation of the Fourth Amendment against

Defendant Mayor Dunkel; (2) malicious prosecution in violation of the Fourth

Amendment against each Defendant; (3) selective enforcement in violation of the

Fourteenth Amendment against each Defendant; (4) violation of substantive due

process rights against each Defendant; and (5) failure to intervene, ostensibly in

violation of the Eighth Amendment, against each Defendant. Additionally, Plaintiffs

assert the following state-law claims: (1) conversion against Defendant Mayor Dunkel;

and (2) malicious prosecution against each Defendant. These claims will be addressed

in turn. 

A. Plaintiffs’ Fourth Amendment Unlawful Seizure of Property Claim 

Plaintiffs claim that Mayor Dunkel’s taking of the signed Bret Michaels guitar and

subsequent refusal to return the item for approximately five months constitutes an

unlawful seizure of their property in violation of the Fourth Amendment. (Am. Compl. ¶¶

23-29, 67, Doc. 12.) Defendants contend that Plaintiffs had already relinquished their

possessory interest in the guitar at the time Mayor Dunkel allegedly seized the item and

therefore do not have standing to assert a claim for unlawful seizure under the Fourth

Amendment. (Def.’s Br. in Supp. 9-10, Doc. 14; Def.’s Reply Br. 2-3, Doc. 16.) The Court

finds that Plaintiffs properly allege standing to assert this claim. 

1. Plaintiffs Have Standing 

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“The Fourth Amendment to the United States Constitution, made applicable to the

states by the Fourteenth Amendment, provides that ‘[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated. . . .’” Brown v. Muhlenberg Twp., 269 F.3d 205, 209

(3d Cir. 2001) (quoting U.S. CONST. amend. IV)). The term “effects” has been defined to

include personal property, and the Amendment applies in civil actions. See id.; see also

Soldal v. Cook Cty., 506 U.S. 56, 62 (1992) (“[O]ur cases unmistakably hold that the

Amendment protects property as well as privacy.”); id. at 66-67, 67 n.11 (reaffirming that

the Fourth Amendment fully applies in the civil context). Under the Fourth Amendment, a

“seizure” of personal property occurs when a governmental actor effectuates a

“meaningful interference with an individual’s possessory interests in that property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984); see Brown, 269 F.3d at 209. A

Fourth Amendment “seizure” may occur regardless of whether a Fourth Amendment

“search” has taken place, see Soldal, 506 U.S. at 68, and the “prohibition against

seizures of property does not depend upon presence of the owner.” United States v.

Shaefer, Michael & Clairton Slag, Inc., 637 F.2d 200, 203 (3d Cir. 1980). An individual

therefore has standing to bring a Fourth Amendment claim for the unlawful seizure of

personal property if he (1) asserts his own property rights, and (2) alleges an injury in

fact, Eiland v. Jackson, 34 Fed. Appx. 40, 42 (3d Cir. 2002), irrespective of whether

“privacy or liberty is also implicated.” Soldal, 506 U.S. at 65. 

The facts alleged in the Amended Complaint, when read in a light most favorable

to Plaintiffs, indicate that they have standing to bring this claim. The Supreme Court has

explained that the touchstone of the standing inquiry in the context of Fourth

Amendment seizures of property is simply whether the party had a “property interest” in

the personalty. See Soldal, 506 U.S. at 68 n.13; see also Qutb v. Ramsey, 285 F. Supp.

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2d 33, 39 n.7 (D.D.C. 2003) (citing Soldal). Presently, Plaintiffs’ Amended Complaint

avers that Defendant Mayor Dunkel–who is clearly a state actor–“seiz[ed] property

belonging to” Plaintiffs and thereby thwarted a charity event held at Goodfellas. (Am.

Compl. ¶ 1.) Plaintiffs further allege that the Glaudas “obtained” the guitar from a music

store in November 2013, and the guitar thereafter became the “property of said Plaintiffs

and their business, Plaintiff Goodfellas, Inc.” (Id. ¶ 22.) Furthermore, Plaintiffs allege that

after Mayor Dunkel illegally seized the guitar, they filed complaints with the solicitor

requesting its return, and Mayor Dunkel did in fact eventually return the guitar to the

Glaudas in April 2014. (Id. ¶ 29.) The fact that Dunkel returned the guitar to the Glaudas,

and not a third party, evidences that Plaintiffs maintained a possessory interest in that

personalty. Finally, Plaintiffs allege that the seizure lead to pecuniary and reputational

harms. (Id. ¶¶ 28-29, 62.) Plaintiffs’ claim thus asserts their own property rights and

alleges an injury in fact, thereby satisfy the standing requirement for a claim of unlawful

seizure of property under the Fourth Amendment. 

2. Plaintiffs Have Plausibly Stated That the Seizure Was “Unreasonable” and

Constituted a “Meaningful” Interference with Their Possessory Interest

In order for Plaintiffs to plausibly state a claim for the unlawful seizure of personal

property in violation of the Fourth Amendment, Defendant Dunkel’s seizure of the guitar

must have been “unreasonable.” See Brown, 269 F.3d at 209-10. “In the ordinary case,

the [Supreme] Court has viewed a seizure of personal property as per se unreasonable

within the meaning of the Fourth Amendment unless it is accomplished pursuant to a

judicial warrant issued upon probable cause and particularly describing the items to be

seized.” United States v. Place, 462 U.S. 696, 701 (1983). However, if “the

governmental interest justifying a seizure is sufficiently compelling and the nature and

extent of the intrusion occasioned by the seizure is not disproportionate to that interest,

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the seizure may be reasonable even though effected without a warrant.” Brown, 269

F.3d at 210. Accordingly, in order to assess whether a warrantless seizure is

nevertheless constitutionally reasonable, the court will have to “balance the nature and

quality of the intrusion on the individual's Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion.” Place, 462 U.S.

at 703. In the instant dispute, Plaintiffs allege that Mayor Dunkel took the guitar without a

warrant and without permission in an effort to harm the Glaudas’ business. (Am. Compl.

¶¶ 24-29.) At this stage of the case, Plaintiffs have pled facts sufficient to demonstrate

that the alleged seizure was unreasonable. 

Plaintiffs must also allege that the seizure constituted a “meaningful” interference

with Plaintiffs’ possessory interest in the guitar in order to succeed on their Fourth

Amendment claim. Notably, cases addressing claims for the unlawful seizure of personal

property usually do not culminate with the aggrieved plaintiff reobtaining possession of

the seized property. Rather, the personalty in question is typically permanently seized or

substantially destroyed. See, e.g., Brown, 269 F.3d at 210 (holding that the killing of

plaintiff’s pet dog constituted a meaningful interference); Pepper v. Vill. of Oak Park, 430

F.3d 805, 809 (7th Cir. 2005) (concluding that both the permanent taking of plaintiff’s

television and substantial damage to her couch constituted meaningful interferences

with plaintiff’s possessory interests); see also Cunningham v. N. Versailles Twp., 2010

WL 391380, at *11 (W.D. Pa. Jan. 27, 2010) (suggesting that if plaintiff’s personal

property had been seized by defendants, but subsequently returned, plaintiff might not

have a cognizable claim under the Fourth Amendment). But, as with the reasonableness

inquiry, although this is ultimately a “fact-intensive question,” see Snyder v. Daughtery,

899 F. Supp. 2d 391, 412 (W.D. Pa. 2012), Plaintiffs’ Amended Complaint alleges a

plausible claim of meaningful interference. 

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3. Defendant Dunkel Cannot Avail Himself of a Qualified Immunity

Defense

Defendant Dunkel does not have a qualified immunity defense with respect to this

claim. In order to avail himself of qualified immunity, Mayor Dunkel must show that “a

reasonable officer with the information he possessed at the time could have believed

that his conduct was lawful in light of the law that was clearly established.” Brown v.

Muhlenberg Twp., 269 F.3d 205, 211 (3d Cir. 2001) (citing Anderson v. Creighton, 483

U.S. 635 (1987)). In order to overcome an assertion of qualified immunity, Plaintiff’s

Amended Complaint must show that Mayor Dunkel violated a “clearly established”

federal right. Anderson, 483 U.S. at 635. “[C]learly established rights” are those with

contours sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001).

“Although officials need not predic[t] the future course of constitutional law, they are

required to relate established law to analogous factual settings.” Id. (citations omitted).

The essential inquiry is whether a reasonable official in Mayor Dunkel’s position at the

relevant time “could have believed, in light of clearly established law, that [his] conduct

comported with established legal standards.” Id. (citation omitted).

As explained above, Plaintiffs’ Amended Complaint alleges a plausible Fourth

Amendment violation for an unreasonable seizure. Moreover, both the Supreme Court

and the Third Circuit have made clear that when a governmental agent meaningfully

interferes with an individual’s possessory interests in his or her personalty, such actions

constitute a “seizure” within the meaning of the Fourth Amendment. See Soldal v. Cook

Cty., 506 U.S. 56, 61 (1992); Brown, 269 F.3d at 209-10. And when these seizures are

effectuated without a warrant or other justification making the interference “reasonable,”

such action violates an individual’s Fourth Amendment rights. Soldal, 506 U.S. at 61, 71;

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Brown, 269 F.3d at 209-10. Although there is no controlling case precisely on point with

the present facts, a plaintiff’s complaint need not demonstrate that the exact actions in

question had previously been held unlawful; rather, it is sufficient to show that in light of

preexisting law, the unlawfulness of the defendant’s conduct was apparent. Shea v.

Smith, 966 F.2d 127, 130 (3d Cir. 1992). Accordingly, the Court finds that in light of

clearly established law, an officer in Mayor Dunkel’s position would have known that the

warrantless seizure of Plaintiffs’ guitar violated their Fourth Amendment rights. Mayor

Dunkel cannot avail himself of a qualified immunity defense with respect to Plaintiffs’

Fourth Amendment claim for an unreasonable seizure. 

Finally, because Plaintiffs assert claims against Mayor Dunkel in both his

individual and official capacity, although the parties do not address this distinction, the

Court must explain that the unlawful seizure claim may proceed against Mayor Dunkel in

only his individual capacity. An official capacity suit against a municipal officer is simply

another way of pleading the same action against the municipality itself. See Kentucky v.

Graham, 473 U.S. 159, 165 (1985). That is, "an official-capacity suit is, in all respects

other than name, to be treated as a suit against the [municipal] entity." Id. at 166.

Accordingly, all of Plaintiffs' claims against the Defendants in their official capacities are

construed as claims against the Borough of Mount Carbon itself. But in order for a

municipality to be liable for damages under 28 U.S.C. § 1983, a plaintiff must plead that

it was deprived of a federally-protected right pursuant to a governmental policy or

custom. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978).

Plaintiffs do not allege, and the Court perceives no independent basis for concluding,

that Mayor Dunkel’s seizure of Plaintiffs’ property was executed pursuant to a municipal

policy, custom, or the like. Consequently, there is no plausible claim against Mayor

Dunkel in his official capacity, and that claim will be dismissed with prejudice. Plaintiffs

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may proceed with their Fourth Amendment seizure of personal property claim against

Mayor Dunkel in his individual capacity only. 

B. Plaintiffs’ Fourth Amendment Malicious Prosecution Claims 

Plaintiffs assert a claim against each Defendant for malicious prosecution in

violation of the Fourth Amendment. (Am. Compl. Counts I-V, Doc. 12; see also Pl.’s Br.

in Opp’n 9-11, Doc. 15.) Specifically, Plaintiffs allege that the issuance of the fourteen

citations for their purported violation of the Amusement Permit Ordinance and the

subsequent Amendment to the Amusement Permit Ordinance infringed upon their

Fourth Amendment rights. Defendants argue that the Amended Complaint fails to allege

facts that plausibly state a claim under the Fourth Amendment for malicious prosecution

because, inter alia, Plaintiffs have not alleged a deprivation of liberty consistent with the

concept of seizure. (Def.’s Br. in Supp. 10-12, Doc. 14.) The Court finds that Plaintiffs

fail to state a claim for malicious prosecution under the Fourth Amendment against any

of the Defendants.

To prove malicious prosecution under § 1983 when the claim is under the Fourth

Amendment, a plaintiff must show that: (1) the defendant initiated a criminal proceeding;

(2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding

without probable cause; (4) the defendant acted maliciously or for a purpose other than

bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding. Johnson

v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007) (citing Estate of Smith v. Marasco, 318 F.3d

497, 521 (3d Cir. 2003)). “Failure to meet any element is fatal to the claim.” Hadesty v.

Rush Twp. Police Dep’t, 2016 WL 1039063, at *9 (M.D. Pa. Mar. 15, 2016) (quoting

Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)). Essentially, Plaintiffs must prove

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that Defendants’ conduct constituted an unreasonable “seizure” of their person. See

DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005); id. at 603 (“The

type of constitutional injury the Fourth Amendment is intended to redress is the

deprivation of liberty accompanying prosecution, not prosecution itself.”) (citing Albright

v. Oliver, 510 U.S. 266, 274 (1994)). 

The first two prongs of the test are satisfied here: Plaintiffs allege Defendants

each played a part in the decision to issue fourteen criminal citations against the

Glaudas for violating the Amusement Permit Ordinance, and that all fourteen citations

were “defeated” before a magistrate in the Glaudas’ favor. (Am. Compl. ¶¶ 33, 56; see

also Def.’s Br. in Supp. Ex. A. § 9(A).) With respect to the third prong, contrary to

Defendants’ contentions, Plaintiffs plausibly allege that criminal proceedings were

initiated against them without probable cause. The Amended Complaint avers that

Plaintiffs submitted their payment for the requisite permit as required by the Ordinance

but were nevertheless cited for violating section 7(A) of said Ordinance, which requires

amusement organizers to obtain a permit prior to hosting an amusement. (Am. Compl.

¶¶ 31-34; Def.’s Br. in Supp. Ex. A. § 7(A).) Although Plaintiffs do not use the precise

phrase “probable cause” in their Amended Complaint, the facts plausibly state a

scenario in which Plaintiffs timely paid for the necessary permit but were nevertheless

cited and prosecuted for failing to have such a permit despite no evidence suggesting

they were violating the Ordinance. The fourth prong is also met because Plaintiffs allege

that these citations were issued against them for the purpose of harassment and

harming their business, not because they were violating the Ordinance.

However, Plaintiffs have not suffered a deprivation of liberty consistent with the

concept of seizure as a consequence of the legal proceedings. Courts generally require

plaintiffs to have suffered “a deprivation more than mere summons to appear in court” in

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order to state a claim for malicious prosecution under the Fourth Amendment. See

DiBella, 407 F.3d at 603 (finding plaintiffs failed to state a claim for malicious

prosecution under the Fourth Amendment because their attendance at trial did not

qualify as a seizure); Luck v. Mount Airy No. 1, LLC, 901 F. Supp. 2d 547, 556 (M.D. Pa.

2012) (finding the fact that plaintiffs had to attend trial to not support a finding of a

deprivation of liberty). Plaintiffs’ Amended Complaint does not state that they were

arrested, forced to post bail, limited in where they could travel, or forced to report to any

governmental body. Cf. DiBella, 407 F.3d at 603. Instead, Plaintiffs were issued citations

and only required to appear before a magisterial judge “in the same manner provided for

the enforcement of summary offenses . . . .” (Def.’s Br. in Supp. Ex. A. § 9(A).) Such

requirements do not constitute a deprivation of liberty cognizable under the Fourth

Amendment. Accordingly, Plaintiffs’ claims for malicious prosecution under the Fourth

Amendment against each Defendant will be dismissed with prejudice. 

C. Plaintiffs’ Fourteenth Amendment Selective Enforcement Claims

Plaintiffs also claim that they were subjected to selective enforcement of the

Ordinance, in violation of the Equal Protection Clause of the Fourteenth Amendment.

This claim arises out of two sets of allegations: First, Plaintiffs contend that the fourteen

citations issued against them for purportedly violating the original Amusement Permit

Ordinance constitutes selective enforcement. (Am. Compl. ¶¶ 68, 72, 76, 80, 84, Doc.

12.) Second, Plaintiffs argue that the Amendment to the Ordinance constitutes selective

enforcement because it was enacted with the “sole intent” of targeting Goodfellas. (Id.

¶¶ 69, 73, 77, 81, 85.) The Court finds that the Amended Complaint, when read in a light

most favorable to Plaintiffs, plausibly states a selective enforcement claim with respect

to the citations issued under the original Amusement Permit Ordinance. But the Court

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finds that Plaintiffs fail to state a claim arising out of the Defendants’ enactment of the

Amendment to the Ordinance. 

Discriminatory enforcement of a facially valid law is unconstitutional under the

Equal Protection Clause of the Fourteenth Amendment. Hill v. City of Scranton, 411 F.3d

118, 125 (3d Cir. 2005) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)); see

also United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (“A decision to

prosecute is selective and violates the right to equal protection when it is made on a

discriminatory basis with an improper motive.”). “The requirements for a

selective-prosecution claim draw on ordinary equal protection standards.” United States

v. Armstrong, 517 U.S. 456, 465 (1996). Accordingly, a plaintiff bringing a selective

enforcement claim3 must show that the decision to prosecute had a discriminatory effect

and was motivated by a discriminatory purpose. Id.; see United States v. Torquato, 602

F.2d 564, 568 (3d Cir. 1979) (“Unequal application of the criminal laws does not amount

to a constitutional violation, however, ‘unless there is shown to be present in it an

element of intentional or purposeful discrimination.’”) (quoting Snowden v. Hughes, 321

U.S. 1, 8 (1944)). Thus, in order “[t]o establish a selective enforcement claim, the

plaintiff must demonstrate (1) that he was treated differently from other similarly situated

individuals; and (2) that this selective treatment was based on an unjustifiable standard,

such as race, religion, some other arbitrary factor or to prevent the exercise of a

fundamental right.” Dombrosky v. Stewart, 555 Fed. Appx. 195, 197 (3d Cir. 2014).

“Persons are similarly situated under the Equal Protection Clause when they are alike in

3 For the purposes of this case there is no practical difference between a claim of

selective prosecution and a claim of selective enforcement, and the two terms are

used interchangeably. United States v. Alcaraz–Arellano, 441 F.3d 1252, 1263–64

(10th Cir. 2006) (elements of selective prosecution and selective enforcement

claims “are essentially the same”); United States v. Barlow, 310 F.3d 1007, 1010

(7th Cir. 2002) (“[T]he same analysis governs both types of claims.”).

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‘all relevant aspects.’” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008)

(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). 

1. The Fourteen Citations Issued Under the Amusement Permit Ordinance 

Plaintiffs do not claim they were treated differently based on their membership in

a protected class or due to their efforts to exercise a fundamental right. Rather, Plaintiffs

contend that they were subject to selective enforcement based on an “arbitrary factor,”

namely, being a competitor of Julian’s Tavern. (Am. Compl. ¶¶ 51-52; Pl.’s Br. in Opp’n

15, Doc. 15.) The gist of Plaintiffs’ Amended Complaint is that Defendants enforced the

Ordinance in a discriminatory manner because of a bad faith desire to put Plaintiffs out

of business.

Some courts that have addressed the government’s use of a purported “arbitrary”

or “irrational” factor when enforcing the law have limited selective prosecution claims to

instances of invidious discrimination based on suspect classifications or discrimination

based on a defendant’s exercise of a fundamental right. See United States v. Martinez,

103 F. Supp. 3d 675, 678-79 (E.D. Pa. 2015) (collecting cases); see, e.g., United States

v. Moore, 543 F.3d 891, 900 (7th Cir. 2008) (holding that a decision to prosecute cannot

be “challenged merely on the ground that it is irrational or arbitrary . . . only invidious

discrimination is forbidden”). The Third Circuit has held that a decision to prosecute

based on an unexplained shift in enforcement policy did not constitute an arbitrary factor

giving rise to a cognizable selective enforcement claim. In Government of Virgin Islands

v. Harrigan, the defendant brought a selective prosecution claim, arguing on appeal that

the government’s decision concerning when to file criminal informations was arbitrary

and, therefore, impermissible. 791 F.2d 34, 36 (3d Cir. 1986). The Third Circuit

concluded that the government’s decision to file an information against the defendant for

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grand larceny, despite a then-existing internal policy to not file an information in such

cases, did not constitute arbitrariness giving rise to a cognizable selective enforcement

claim. Id. at 36-37. Similarly, in United States v. Martinez, the district court concluded

that a defendant’s selective enforcement claim alleging the government’s decision to

prosecute was based on the arbitrary motive to coerce him to testify also failed as a

matter of law. 103 F. Supp. 3d at 678-80. After reviewing Third Circuit precedent, the

court found that “Defendant's theory of selective prosecution—that is, attempting to

coerce Defendant's cooperation, without reference to race, religion, bias, or the exercise

of a fundamental right—is not cognizable as a matter of law.” Id. at 680. 

But the Third Circuit has also indicated that an enforcement decision based on

“personal bias” could give rise to a cognizable selective enforcement claim. In United

States v. Torquato, the Court explained that “[t]o permit criminal prosecutions to be

initiated on the basis of arbitrary or irrational factors would be to transform the

prosecutorial function from one protecting the public interest through impartial

enforcement of the rule of law to one permitting the exercise of prosecutorial power

based on personal or political bias.” 602 F.2d 564, 568 (3d Cir. 1979). The defendant in

Torquato claimed he was subjected to selective prosecution due to a personal bias

against his political affiliation. See id. Although the defendant failed to proffer sufficient

evidence of selective enforcement to receive the relief he sought, the Court expressly

approved of a party asserting a claim for selective enforcement based on this form of

“individual discrimination.” Id. at 569 n.9. Under this line of reasoning, a claimant does

not have to allege to be a member of a broader class of individuals against which a law

is being selectively enforced in order to succeed on a selective enforcement claim. See

id. The Third Circuit’s decision in Torquato informs the present dispute because it

establishes that (1) a prosecuting body’s personal bias unrelated to suspect

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classifications may serve as a cognizable “arbitrary factor” for purposes of a selective

enforcement claim; and (2) a selective-enforcement claimant need not allege to be a

member of a broader class of persons subject to selective prosecution in order to

proceed on his claim.

Additionally, this Court has previously stated that a plaintiff states a cognizable

selective enforcement claim if he establishes that he incurred differential treatment due

to “a malicious or bad faith intent to injure,” even if he was not a member of a protected

class or prevented from exercising a fundamental right. See Dombrosky v. Stewart,

2012 WL 3686779, at *6 (M.D. Pa. Aug. 27, 2012) (citing Homan v. City of Reading, 15

F. Supp. 2d 696, 702 (E.D. Pa. 1998) (quoting Zahra v. Town of Southold, 48 F.3d 674,

684 (2d Cir. 1995))), aff’d, 555 Fed. Appx. 195 (3d Cir. 2014). The mere fact that

similarly situated parties are treated differently does not by itself establish malice. See

Zahra, 48 F.3d at 684. Rather, a plaintiff must show that a defendant acted with a

malicious or bad faith intent to cause harm. LeClair v. Saunders, 627 F.2d 606, 609-10

(2d Cir. 1980). 

The Court finds that Plaintiffs have plausibly alleged a claim for selective

enforcement under the Fourteenth Amendment. First, the Court finds that Plaintiffs have

specifically identified an entity “similarly situated” to Goodfellas: Julian’s Tavern. Both

establishments are local bars situated less than one-half mile from one another and

serve a relatively small community. (Pl.’s Br. in Opp’n 15, Doc. 15.) The two

establishments both hosted “amusements” as defined by the original Ordinance during

the same time period, but Plaintiffs allege that only Goodfellas was cited for such

activities. (Am. Compl. ¶¶ 50, 53-55.) The inquiry into whether parties are “similarly

situated” is fact-specific, see Balakrishnan v. Kusel, 2009 WL 1291755, at *7 (E.D.N.Y.

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May 8, 2009), and Plaintiffs’ Amended Complaint sufficiently alleges facts that indicate

both bars are “similarly situated” to survive a motion to dismiss. 

The Court also concludes that Plaintiffs plausibly allege that their selective

treatment was based on an “arbitrary factor,” specifically, Defendants’ personal bias

against Plaintiffs with a bad faith intent to cause financial injury. First, the Court notes

that the pleadings indicate the Borough Council is the relevant governmental body that

exercised enforcement discretion in the instant matter. (See Am. Compl. ¶ 55; Def.’s Br.

in Reply Ex. A, Doc. 16-1 (minutes from May 13, 2014 Council meeting).) Although

courts confronted with selective enforcement claims are often cautious about secondguessing prosecutorial decisions, see Armstrong, 517 U.S. at 464, the Court concludes

that a lower degree of latitude is warranted when the same body responsible for drafting

the Ordinance is concurrently empowered to enforce it. 

Second, unlike the Third Circuit’s decision in Harrigan, the purported “arbitrary”

factor upon which Defendants’ based their decision to enforce the Ordinance against

Plaintiffs does not concern prosecutorial strategy. See 791 F.2d 34, 36-37 (3d Cir.

1986); cf. Martinez, 103 F. Supp. 3d at 679 (finding no cognizable arbitrary enforcement

decision when claimant alleged “strategic prosecutorial behavior, not bias”). Instead,

Plaintiffs allege that the motivating factor behind Defendants’ enforcement decision was

personal bias. (See Am. Compl.¶¶ 1, 51, 55.) Plaintiffs plausibly state a set of facts in

which the Borough Council voted to enforce a criminal ordinance against the Glaudas

simply because they are a business competitor of the Council President. At this juncture,

Defendants have argued only that Defendant Haughney, the Council President who has

an ownership interest in Julian’s Tavern, abstained from voting on the decision to

enforce the Ordinance against Plaintiffs. (Def.’s Reply Br. 6, Doc. 16.) While this

abstention may ultimately prove to insulate the Council’s enforcement decisions from

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liability, at this stage Plaintiffs have sufficiently alleged that a bad faith intent to cause

financial injury was the reason for Defendants’ actions. See Dombrosky, 2012 WL

3686779, at *6. Indeed, enforcement decisions based on this type of personal animus–if

true–are grounded in the type of “arbitrary or irrational factors” that the Third Circuit

cautioned could corrode the integrity of the rule of law. Torquato, 602 F.2d at 568. 

Finally, the Court reads the Third Circuit’s decision in Torquato as approving of

selective enforcement claims that are not premised on class-based discrimination. See

602 F.2d at 569 n.9 (“[I]t is clear that [the claimant] could raise his claim of selective

prosecution based on individual discrimination.”). Indeed, in light of the Supreme Court’s

decisions post-Torquato permitting “class-of-one”4 equal protection claims to proceed,

see Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Court does not believe

Plaintiffs’ inability to plead membership in a protected class is necessarily fatal to their

claim. 

a. Qualified Immunity Bars Plaintiffs’ Selective Enforcement Claims

Against Defendants in Their Individual Capacities 

4 Although the line between the two claims has become blurred, a selective

enforcement claim and a class-of-one equal protection claim are traditionally

distinct causes of action. See Dombrosky v. Stewart, 2012 WL 3686779, at *7

(M.D. Pa. Aug. 27, 2012). A class-of-one equal protection claim "typically

focuses on the sheer irrationality in the manner in which the plaintiff was treated,"

and is based on the premise that there was no rational basis for the government's

action. Casciani v. Nesbitt, 659 F. Supp. 2d 427, 435 (W.D.N.Y. 2009); see

Dombrosky, 2012 WL 3686779, at *7 (explaining that “differential treatment

without a rational basis states a ‘class of one’ claim, while differential treatment

motivated by an intent to discriminate on an impermissible basis is a selective

enforcement claim”). Here, Plaintiffs allege only a selective enforcement claim

based on individual discrimination, and the Court addresses the merits of this

equal protection claim only. However, the fact that the Supreme Court has

approved of class-of-one equal protection claims suggests that a selective

enforcement claim premised on individual rather than class-based discrimination

is cognizable. 

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Because Plaintiffs’ right to equal protection has been plausibly violated, the Court

must next assess whether it was a “clearly established right” that a reasonable officer

should know.

5 See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In order for a right to

be clearly established, there usually must be applicable precedent from the Supreme

Court. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015). If

governing case law does not clearly establish that Defendants’ conduct violated the

Fourteenth Amendment, Defendants are entitled to qualified immunity. See Ashcroft v.

al-Kidd, 563 U.S. 731, 741-42 (2011); see also Brosseau v. Haugen, 543 U.S. 194, 201

(2004) (concluding that an officer who used deadly force against a suspect fleeing by car

was entitled to qualified immunity because no case “squarely govern[ed]” that matter).

The Supreme Court has counseled lower courts to not “define clearly established law at

a high level of generality.” al-Kidd, 563 U.S. at 742. Rather, courts must “frame the right

at issue in a more particularized, and hence more relevant, sense, in light of the case's

specific context.” Spady, 800 F.3d at 638 (internal citations omitted). 

In this case, the specific context is whether a municipal body’s decision to enforce

an ordinance based on an “arbitrary factor” unrelated to suspect classifications or

fundamental rights may constitute selective enforcement in violation of the Equal

Protection Clause. The parties have not cited to any Supreme Court decision finding this

form of “personal bias” to present a cognizable selective enforcement claim. This Court’s

review of prevailing case law likewise found varying authority as to whether selective

enforcement claims are cognizable when based on arbitrary factors that do not implicate

5 Although legislators are afforded absolute immunity for actions that are both

“substantively” and “procedurally” legislative in nature, the Third Circuit has

clarified that enforcing existing ordinances is an executive or administrative

action, not legislative. Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159,

172 (3d Cir. 2006). Accordingly, the Court will conduct only a qualified immunity

analysis. 

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suspect classes or fundamental rights. See, e.g., United States v. Smith, 953 F.2d 1060,

1063 (7th Cir. 1992) (“Arbitrariness–that is, unjustified disparities in the treatment of

similarly situated persons–is not among the grounds on which to contest an exercise of

prosecutorial discretion.”). Compare Gov’t of V.I. v. Harrigan, 791 F.2d 34 (3d Cir. 1986),

with United States v. Torquato, 602 F.2d 564 (3d Cir. 1979). Because few controlling

cases have addressed the category of “arbitrary” or “irrational” factors in this context,

and because existing precedent has not placed the “constitutional question beyond

debate,” al-Kidd, 563 U.S. at 741, the Court must conclude that Defendants are entitled

to qualified immunity with respect to the selective enforcement claims. There is simply

insufficient authority defining the parameters of the “arbitrary factors” inquiry in the

context of Fourteenth Amendment selective enforcement claims to deny Defendants’

qualified immunity defense. 

The qualified immunity inquiry ultimately hinges on “whether the violative nature

of particular conduct is clearly established. . . . in light of the specific context of the case,

not as a broad general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(emphasis in original). Although one hopes that a reasonable officer understands that

selectively enforcing an ordinance based on his personal bias and intent to cause

financial harm is unlawful, the Court cannot fairly say that “existing precedent placed the

conclusion that [Defendants violated the Equal Protection Clause] in these

circumstances ‘beyond debate.’” Mullenix, 136 S. Ct. at 309 (quoting al-Kidd, 563 U.S. at

741). Plaintiffs’ claims for selective enforcement against Defendants in their individual

capacities will therefore be dismissed with prejudice because they are barred by

qualified immunity. 

b. Plaintiffs’ Selective Enforcement Claims Against Defendants in

Their Official Capacities Are Not Barred 

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Plaintiffs assert the same claim against each Defendant in his or her “official

capacity.” (Am. Compl. ¶¶ 12-16.) As noted above in Part A.3, a suit against a municipal

official in his official capacity is in actuality a suit against the municipality itself. Kentucky

v. Graham, 473 U.S. 159, 165 (1985). Unlike a municipal officer sued in his individual

capacity, a municipality cannot avail itself of an absolute or qualified immunity defense.

See Bass v. Attardi, 868 F.2d 45, 51 (3d Cir. 1989) (citing Owen v. City of Indep., 445

U.S. 622, 657 (1980)). “Municipalities and other bodies of local government . . . are

liable under § 1983 only if they have caused a constitutional tort through ‘a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that

body's officers.’” LaVerdure v. Cty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003)

(quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978)). Only

municipal officers who possess “final policymaking authority” may by their actions

subject the municipality to liability under § 1983. City of St. Louis v. Praprotnik, 485 U.S.

112, 123 (1988). “An official has policymaking authority for Monell purposes when the

official is responsible as a matter of state law for making policy in the particular area of

[municipal] business in question, and the official's authority to make policy in that area is

final and unreviewable.” Mulholland v. Gov’t Cty. of Berks, 706 F.3d 227, 237 (3d Cir.

2013). 

If a legislative body requires a majority vote in order to establish policy, the

actions of individual members of that body do not constitute municipal policy. LaVerdure,

324 F.3d at 125 (finding statements from the chairman of a municipal Board of

Commissioners to not constitute municipal policy because the chairman lacked final

policymaking authority without the support from a majority of the Board); see Watson v.

Borough of Susquehanna, 2012 WL 5249551, at *5 (M.D. Pa. Oct. 23, 2012)

(“LaVerdure stands for the proposition, among others, that one member of a

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decision-making body cannot, by himself, subject that body to liability.”), aff’d, 532 Fed.

Appx. 233 (3d Cir. 2013). Ultimately, in order to hold a municipality liable under § 1983

for actions taken by a decision-making body, a plaintiff must demonstrate that a majority

of the body’s members acted with an impermissible motive. Watson v. Borough of

Susquehanna, 532 Fed. Appx. 233, 236 (3d Cir. 2013). 

In this case, Plaintiffs allege that the Mount Carbon Councilmembers voted to

enforce the Ordinance against them out of a bad faith desire to financially harm Plaintiffs

and benefit the competing business owned by Defendant Councilmember Haughney.

(Am. Compl. ¶¶ 51-55.) The minutes from the May 13, 2014 meeting, at which the

enforcement decision was made, note that Mayor Dunkel and all of the Councilmembers

were present, although Defendant Haughney abstained from voting. (Def.’s Br. in Reply

Ex. A, Doc. 16-1.) The minutes further demonstrate that the Mayor implored the Council

to vote to enforce the Ordinance, presumably against the Plaintiffs, because the Mayor

was “aware” of unspecified violations. (Id.) It is a question of fact as to whether

Defendants Raess and Stephenson, the Councilmembers who voted on the

enforcement action, were tainted with the alleged impermissible motive. See LaVerdure,

324 F.3d at 125-26 (noting, inter alia, that if the plaintiff demonstrated the Board

acquiesced in the biased member’s statements, their ratification could be chargeable to

the municipality). For purposes of the present Motion, the Court finds that the decision to

issue fourteen citations against Plaintiffs for violating the Ordinance constitutes a “policy”

for purposes of municipal liability under § 1983. Additionally, Plaintiffs plausibly allege

that the voting Councilmembers knew the Glaudas had paid for the required permit, and

also knew that Haughney’s bar did not have the requisite permit, but nevertheless

elected to enforce the Ordinance against the Glaudas but not the owners of Julian’s

Tavern due to an impermissible purpose. (Am. Compl. ¶ 55.) Plaintiffs will have to prove

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this fact in order to succeed on their official capacity claim, but the Court finds Plaintiffs’

claim for selective enforcement against the Defendants in their official capacities

survives the instant Motion to Dismiss. 

2. The Amendment to the Amusement Permit Ordinance 

 Plaintiffs allege that the arbitrary purpose of financially harming their business

also motivated Defendants to enact the Amendment to the Amusement Permit

Ordinance, which purportedly sought to exclude Julian’s Tavern from the permitting

requirements. (See Am. Compl. ¶ 57.) However, Plaintiffs may not proceed with their

selective enforcement claim on this set of facts because they do not allege to have been

“treated differently from other similarly situated individuals.” Dombrosky v. Stewart, 555

Fed. Appx. 195, 197 (3d Cir. 2014). The Council’s decision to enforce the Ordinance

against Goodfellas, but not Julian’s Tavern, despite the fact Goodfellas obtained the

required permit but Julian’s Tavern did not, constitutes differential treatment. But

Plaintiffs have not alleged that the Council’s subsequent decision to amend the

Ordinance–even if it was made with a bad faith intent–has lead to differing treatment.

Indeed, there is no claim that the amended Ordinance has ever been enforced against

either party. Accordingly, the Court finds Plaintiffs fail to state a selective enforcement

claim with respect to Defendants’ decision to amend the Amusement Permit Ordinance. 

In sum, the Court will grant Defendant’s Motion to Dismiss Plaintiffs’ selective

enforcement claim against each Defendant in his or her individual capacity. The Court

will deny Defendant’s Motion with respect to this claim against the Defendants in their

official capacities, which is in actuality a claim against the Borough. The official capacity

claim must therefore proceed against the municipality itself. 

D. Plaintiffs’ Fourteenth Amendment Substantive Due Process Claims

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Plaintiffs also claim Defendants “deprived the Plaintiffs of their right to pursue a

livelihood or profession by restricting their ability to engage in business,” violating their

substantive due process rights. (Pl.’s Br. in Opp’n 12, Doc. 15; see Am. Compl. ¶¶ 64-

65, Doc. 12.) In order to plausibly state a claim for a substantive due process violation,

Plaintiffs must allege that: (1) they have a protected property interest to which the

Fourteenth Amendment's substantive due process protection applies; and (2)

Defendants’ behavior in depriving them of the alleged property interest was so egregious

and outrageous “that it may fairly be said to shock the contemporary conscience.”

Phantom of E. Pa. v. N.J. State Police, 2008 WL 2039461, at *2 (E.D. Pa. May 12,

2008) (quoting Desi's Pizza Inc. v. City of Wilkes–Barre, 321 F.3d 411, 426–27 (3d Cir.

2003)). 

1. Plaintiffs Fail to Identify a Protected Property Interest 

It is well-settled that although state-created property interests are entitled to

protection under the procedural component of the Due Process Clause, “not all property

interests worthy of procedural due process protection are protected by the concept of

substantive due process.” Nicholas v. Pa. State Univ., 227 F.3d 133, 140 (3d Cir. 2000)

(citation and internal quotation marks omitted). Rather, to state a substantive due

process claim, “a plaintiff must have been deprived of a particular quality of property

interest.” Id. (citation and internal quotation marks omitted). “[W]hether a certain property

interest embodies this ‘particular quality’ is not determined by reference to state law, but

rather depends on whether that interest is ‘fundamental’ under the United States

Constitution.” Id. (citation omitted). The Third Circuit has summarized this analysis by

explaining that “when a plaintiff challenges a non-legislative state action . . . we must

look, as a threshold matter, to whether the property interest being deprived is

‘fundamental’ under the Constitution. If it is, then substantive due process protects the

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plaintiff from arbitrary or irrational deprivation, regardless of the adequacy of procedures

used. If the interest is not ‘fundamental,’ however, the governmental action is entirely

outside the ambit of substantive process and will be upheld so long as the state satisfies

the requirements of procedural due process.” Id. at 142. Notably, the Third Circuit has

limited non-legislative substantive due process rights to real property ownership.

Connection Training Servs. v. City of Phila., 358 Fed. Appx. 315, 320 (3d Cir. 2009)

(citing Nicholas, 227 F.3d at 141); see also Phantom of E. Pa., 2008 WL 2039461, at *3-

*4 (finding the right to operate a business to be “a state-created right rather than a

property right protected under the Constitution” and therefore not “a constitutionally

protected property interest”).

Plaintiffs’ allege only a substantive due process violation. (Am. Compl. ¶¶ 70, 74,

78, 82, 86.) The Amended Complaint’s vague references to a business interest do not

satisfactorily plead a property interest that is protected by substantive due process. The

challenged action at issue is the Council’s decision to enforce the Amusement Permit

Ordinance against Plaintiffs but not against Defendant Haughney’s competing

establishment.6 (See Pl.’s Br. in Opp’n 12.) An action to enforce an existing ordinance is

6 To the extent Plaintiffs allege that the enactment of the Amendment to the

Amusement Permit Ordinance violates their substantive due process rights, the

Court finds no plausible claim to exist. “[W]hen a plaintiff challenges the validity

of a legislative act, substantive due process typically demands that the act be

rationally related to some legitimate government purpose.” Nicholas v. Pa. State

Univ., 227 F.3d 133, 142 (3d Cir. 2000); Stern v. Halligan, 158 F.3d 729, 731 (3d

Cir. 1998) (“[W]hen general economic and social welfare legislation is alleged to

violate substantive due process, it should be struck down only when if fails to

meet a minimum rationality standard, an extremely difficult standard for plaintiff

to meet.”) (internal quotations omitted). Here, the Ordinance does not infringe

upon any fundamental right, and therefore must merely meet the rationality

standard. There are numerous rational and legitimate reasons for the Council to

amend the Ordinance as they did. Plaintiffs therefore state no plausible claim for a

substantive due process violation arising out of the Amendment to the Ordinance. 

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considered to be “non-legislative.” See Cty. Concrete Corp. v. Town of Roxbury, 442

F.3d 159, 172 (3d Cir. 2006). But the Third Circuit has concluded that “real property

ownership” is the only property right considered “fundamental” in the context of nonlegislative substantive due process review. Skowronek v. Borough of Avonmore, 2007

WL 2597930, at *3 (W.D. Pa. Sept. 5, 2007) (citing Nicholas). Plaintiffs’ claim that their

ability to “pursue a livelihood or profession” has been deprived, and their assertion that

they are unable to attend to their usual duties or feel secure at their business, do not rise

to an interest in real property ownership that is necessary for the Court to find a

plausible substantive due process claim. See Phantom of E. Pa., 2008 WL 2039461, at

*3-*4 (rejecting plaintiffs attempt to analogize its interest in the operation of its business

with an interest that falls under the real property ownership category of Nicholas that

warrants substantive due process protection). Because Plaintiffs have failed to

sufficiently plead a property interest that is subject to substantive due process

protection, the Court will dismiss Plaintiffs’ claims for substantive due process violations

against each Defendant without prejudice. 

E. Plaintiffs’ Failure to Intervene Claims 

Plaintiffs’ final federal law claims allege each Defendant failed to intervene to stop

a violation of Plaintiffs’ rights despite having a duty and reasonable opportunity to

intervene. (Am. Compl. ¶¶ 71, 75, 79, 83, 87, Doc. 12.) In support of this claim, Plaintiffs

argue that various Defendants could have intervened and stopped the alleged violations

of Plaintiffs’ constitutional rights by voting differently on the decision to enforce the

Amusement Permit Ordinance against Plaintiffs and the decision to amend the

Ordinance. (Pl.’s Br. in Opp’n 16-17, Doc. 15.) But Plaintiffs rely exclusively on the Third

Circuit’s decision in Smith v. Mensigner as the legal basis for their claim, which holds

only that an officer’s failure to intervene in the beating of an inmate can form the basis of

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liability for an Eight Amendment violation under § 1983. 293 F.3d 641, 650-51 (3d Cir.

2002). Plaintiffs do not provide any legal argument that suggests a failure to intervene

claim is cognizable outside the context of Eighth Amendment excessive force cases.

See Shrey v. Kontz, 981 F. Supp. 2d 333, 340 (M.D. Pa. 2013). Accordingly, Plaintiffs

have not stated a claim for failure to intervene against any Defendant. Plaintiffs claims

for failure to intervene against each Defendant will therefore be dismissed with

prejudice.

F. Plaintiffs’ Conversion Claim Against Defendant Mayor Dunkel

Plaintiffs proceed to allege a state-law claim for conversion against Defendant

Mayor Dunkel stemming from the alleged taking of their Bret Michaels-autographed

guitar. (Am. Compl. ¶ 88, Doc. 12.) The Pennsylvania Supreme Court has defined the

tort of conversion as “an act of willful interference with a chattel, done without lawful

justification, by which any person entitled thereto is deprived of use and possession.”

Norriton E. Realty Corp. v. Cent.-Penn Nat’l Bank, 254 A.2d 637, 638 (Pa. 1969).

“Conversion may be committed by. . . [u]nreasonably withholding possession from one

who has the right to it.” Stevenson v. Econ. Bank of Ambridge, 197 A.2d 721, 726 (Pa.

1964) (quoting PROSSER, TORTS § 15 (2d ed. 1955)). 

Plaintiffs have stated a plausible claim for conversion against Defendant Dunkel.

The Amended Complaint alleges Mayor Dunkel took possession of Plaintiffs’ guitar

without their permission on November 17, 2013. (Am Compl. ¶ 24.) Despite multiple

requests for the return of the guitar–including formal complaints made to the Borough

solicitor stating Mayor Dunkel had stolen the property–Defendant Dunkel retained

possession of the guitar for over five months. (Id. ¶¶ 25, 29.) Defendant Dunkel’s

unauthorized possession of the guitar lasted until Plaintiffs were forced to cancel the

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celebrity press event scheduled to be held at Goodfellas during which artist Bret

Michaels was going to deliver the signed guitar to the Fire Department and endorse

Goodfellas. (Id. ¶¶ 28-29.) The Amended Complaint sufficiently alleges that Defendant

Dunkel unreasonably withheld possession of the chattel without Plaintiffs’ consent or

lawful justification, and in spite of Plaintiffs’ request for its return. 

Defendants argue that Mayor Dunkel’s action is entitled to immunity under the

Political Subdivision Tort Claims Act (“Pennsylvania Tort Claims Act” or “the Act”).

(Def.’s Br. in Supp. 20, Doc. 14.) However, the Pennsylvania Tort Claims Act “does not

shield local agency employees from acts that constitute a crime, actual fraud, actual

malice or willful misconduct.” Balletta v. Spadoni, 47 A.3d 183, 195 (Pa. Commw. Ct.

2012) (citing 42 Pa. Cons. Stat. §§ 8542(a)(2), 8550). Under the Act, “‘willful misconduct’

means ‘willful misconduct aforethought’ and is synonymous with ‘intentional tort.’”

Balletta, 47 A.3d at 196 (quoting R.H.S. v. Allegheny Cty. Dep’t of Human Servs., 936

A.2d 1218, 1230 (Pa. Commw. Ct. 2007)); see also id. (“Willful misconduct means the

actor ‘desired to bring about the result that followed, or at least that he was aware that it

was substantially certain to ensue.’”) (citation omitted). 

Plaintiffs have plausibly stated a claim against Defendant Dunkel for a willful,

intentional interference with the use and enjoyment of their signed guitar. They claim the

Mayor unlawfully took the guitar, kept it for over five months despite formal requests for

it to be returned, with the intent to sabotage Plaintiffs’ press event. (See Am. Compl. ¶¶

24-29.) Because municipal employees engaging in “willful misconduct” cannot avail

themselves of an immunity-based defense under the Act, the conversion claim against

Defendant Dunkel cannot be dismissed on such grounds. As such, Defendants’ Motion

to Dismiss Plaintiffs’ conversion claim against Defendant Dunkel will be denied. 

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G. Plaintiffs’ State-Law Malicious Prosecution Claims 

Finally, Plaintiffs allege a state-law claim for malicious prosecution against each

Defendant. (Am. Compl. Counts VI-X, Doc. 12.) Under Pennsylvania law, a claim for

malicious prosecution requires a plaintiff to show that the defendant “instituted

proceedings against the plaintiff 1) without probable cause, 2) with malice, and 3) the

proceedings must have terminated in favor of the plaintiff.” Kelley v. Gen. Teamsters,

Chauffeurs & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988). Unlike a

malicious prosecution claim brought under the Fourth Amendment, Plaintiffs do not have

to allege that they suffered a deprivation of liberty consistent with the concept of a

seizure. Cf. DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).

Pennsylvania courts have defined “probable cause” as “a reasonable ground or

suspicion supported by circumstances sufficient to warrant an ordinary prudent man in

the same situation in believing that the party is guilty of the offense.” Kelley, 544 A.2d at

942. If a defendant lacked probable cause to institute the proceedings, courts have

found that the malice element may be inferred. See id. at 941. 

Viewing the allegations in the Amended Complaint in a light most favorable to

Plaintiffs, the Court finds Plaintiffs plausibly state a claim for malicious prosecution under

state law. Plaintiffs allege that the Borough Council voted to issue fourteen criminal

citations against them on July 3, 2014 for violating section 7(A) of the Amusement

Permit Ordinance, despite the fact that Plaintiffs were in compliance with the Ordinance.

(Am. Compl. ¶¶ 31-48.) In September 2014, Plaintiffs prevailed in the proceedings

against them regarding the citations. (Id. ¶ 56.) Plaintiffs further allege that Defendants

had received Plaintiffs’ payment for the permit but nevertheless voted to enforce the

Ordinance against them. (Id. ¶ 33.) The minutes from the May 13, 2014 Council meeting

indicate that all Defendants were present at the meeting, and that the enforcement

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decision was based, at least in part, on Mayor Dunkel’s “awareness” of unidentified

violations of the Ordinance. (Def.’s Reply Br. Ex. A, Doc. 16-1.) 

In support of their Motion to Dismiss Plaintiffs’ malicious prosecution claims,

Defendants argue that Plaintiffs fail to allege the absence of probable cause because

they “do not aver that they had applied for and received the required amusement permit

but were issued citations notwithstanding their compliance with the Ordinance.” (Def.’s

Br. in Supp. 10, Doc. 14.) But Plaintiffs do in fact plead these precise facts. (See Am.

Compl. ¶ 33) (“[D]espite having received payment from Plaintiffs for the Entertainment

Permit, Defendants voted to issue citations to Plaintiffs for violations of [the]

Ordinance.”).) At this stage of the case, Plaintiffs have plausibly alleged that the

enforcement proceedings were initiated by Defendants without probable cause and that

the proceedings terminated in their favor. Defendants’ Motion to Dismiss Plaintiffs’ statelaw claims for malicious prosecution will therefore be denied. 

H. Standing

Defendants argue that Plaintiff Goodfellas does not have standing to bring any of

the § 1983 claims because it has not suffered an injury in fact, that is, “an invasion of a

legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations

omitted); (Def.’s Br. in Supp. 8, Doc. 14.) However, Plaintiffs allege that the autographed

guitar that forms the basis of their Fourth Amendment claim was the property of both the

Glaudas and “their business, Plaintiff Goodfellas, Inc.” (Am. Compl. ¶ 22, Doc. 12.) As

such, the deprivation of that property constitutes an injury in fact to Goodfellas. 

Additionally, with respect to the Fourteenth Amendment selective enforcement

claims, the challenged enforcement decisions made by Defendants specifically

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concerned whether “amusements” were held at Goodfellas that violated the Amusement

Permit Ordinance. The Glaudas argue that selective enforcement of the Ordinance

against them harmed Goodfellas’s reputation and financial well-being, as the Glaudas

were found to be in violation of the law multiple times for events hosted at their

establishment. (Pl.’s Br. in Opp’n 5, Doc. 15; Am. Compl. ¶ 62.) Reputational injury is

generally a cognizable injury in fact to confer standing to bring suit. See Meese v.

Keene, 481 U.S. 465, 473-75 (1987); NCAA v. Gov. of N.J., 730 F.3d 208, 220 (3d Cir.

2013) (“As a matter of law, reputational harm is a cognizable injury in fact.”). Because

Goodfellas argues that both its business reputation and bottom line were damaged when

Defendants selectively enforced the Ordinance against the Glaudas for events taking

place at Goodfellas, (see Pl.’s Br. in Opp’n 5), the Court concludes that Goodfellas has

standing to bring the selective enforcement claim based on a reputational injury. And

because the Court will dismiss the other constitutional claims, whether Goodfellas had

standing to bring those claims is moot. 

I. Leave to Amend

The Third Circuit has instructed that if a complaint is vulnerable to a 12(b)(6)

dismissal, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Phillips v. Cty. of Allegheny, 515 F.3d 224, 237 (3d Cir.

2008); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane

v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). Here, because Plaintiffs may be able to

allege facts sufficient to state a violation of their substantive due process rights under

the Fourteenth Amendment, the Court will grant leave to amend that claim. Amendments

to all other dismissed claims, however, would be futile because they fail as a matter of

law.

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V. Conclusion

For the above stated reasons, Defendants’ Motion to Dismiss Plaintiffs’ Amended

Complaint will be DENIED in part and GRANTED in part. Defendants’ Motion will be denied

with respect to the following claims: (1) a claim under § 1983 for an unlawful seizure of

personal property in violation of the Fourth Amendment against Defendant Dunkel in his

individual capacity; (2) a claim under § 1983 for selective enforcement of the Ordinance in

violation of the Equal Protection Clause of the Fourteenth Amendment against the Borough

of Mount Carbon; (3) a state-law conversion claim against Defendant Dunkel; and (4) statelaw claims for malicious prosecution against each Defendant. 

Defendants’ Motion will be granted, and Plaintiffs’ claims will be dismissed with

prejudice, with respect to the following claims: (1) a claim under § 1983 for an unlawful

seizure of personal property in violation of the Fourth Amendment against Defendant

Dunkel in his official capacity; (2) claims under § 1983 for malicious prosecution in violation

of the Fourth Amendment against each Defendant in both his or her individual and official

capacity; (3) claims under § 1983 for selective enforcement in violation of the Fourteenth

Amendment against each Defendant in his or her individual capacity; and (4) claims under

§ 1983 for failure to intervene against each Defendant in his or her individual and official

capacity.

Defendants’ Motion will be granted, and Plaintiffs’ claims will be dismissed without

prejudice, with respect to Plaintiffs’ claim under § 1983 for violation of their Fourteenth

Amendment substantive due process rights against each Defendant in his or her individual

and official capacity. 

An appropriate order follows.

November 8, 2016 /s/ A. Richard Caputo 

Date A. Richard Caputo

 United States District Judge

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