1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES GELNETT, et al., : Case No. 4:15-CV-1910

:

Plaintiffs, :

v. : (Judge Brann)

:

TOWNSHIP OF CHAPMAN, :

a 2nd class township, :

:

Defendant. :

MEMORANDUM

November 24, 2015

Plaintiffs James Gelnett, Jameson Gelnett, Melissa Gelnett, Ann Lauver, and 

Courtney Lauver (hereinafter collectively “Plaintiffs”) filed an action against 

Defendant Chapman Township (hereinafter “Chapman Township”) in the Court of 

Common Pleas of Snyder County, Pennsylvania, alleging the three following 

counts: Count I: Takings without just compensation under the Fifth Amendment of 

the United States Constitution pursuant to 42 U.S.C. § 1983, Count II: Trespass, 

and Count III: Conversion.1 Chapman Township subsequently removed the action 

to this Court.

2

 

Pending before the Court is Chapman Township’s motion to dismiss all

three counts of Plaintiffs’ complaint.3Plaintiffs requested an extension of time to 

 

1 ECF No. 1, Attachment 1.

2 ECF No. 1.

3 ECF No. 3.

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file their brief in opposition, which the Court granted.4Plaintiffs then failed to file 

their brief in opposition prior to the deadline set by the Court. For the following 

reasoning, Chapman Township’s motion to dismiss is granted in part and denied in 

part. Count I of Plaintiffs’ complaint is dismissed without prejudice and the matter 

is remanded to the Snyder County Court of Common Pleas.

I. BACKGROUND

Plaintiffs are the owners of a one-half interest in land situated in Chapman 

Township, Snyder County, Pennsylvania. Plaintiffs allege that since 2009, 

Chapman Township has interfered with their property on a continuous and regular 

basis. Specifically, Plaintiffs claim that through actions of “supervisors and road 

crew,” Chapman Township has changed the run-off of storm water from its right of 

ways in a manner that diverts water and dirt runoff onto Plaintiffs’ property. 

Plaintiffs also allege that the township supervisors and road crew removed dirt and 

valuable trees and erected a manure retention pond that obstructs water flow with a 

foul smelling manure mud on their property. These actions by Chapman Township 

allegedly “diminished the [Plaintiffs’] real property value and caused a financial 

loss in an amount less than $50,000.” 

 

4 ECF No. 5.

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II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff.5 However, “the 

tenet that a court must accept as true all of the [factual] allegations contained in the 

complaint is inapplicable to legal conclusions.”6 In ruling on such a motion, the 

court primarily considers the allegations of the pleading, but is not required to 

consider legal conclusions alleged in the complaint.7 “Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”8 At the motion to dismiss stage, the court considers whether plaintiff is 

entitled to offer evidence to support the allegations in the complaint.9 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face.10 “Determining whether a complaint 

 

5

See Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 

1993). 

6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).

7 Kost, 1 F.3d at 183.

8

Iqbal, 556 U.S. at 678. 

9

See Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

10 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). 

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states a plausible claim for relief will . . . be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”11 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.”12 Federal Rule of Civil Procedure 8 "requires only a ‘short and plain 

statement of the claim showing that the pleader is entitled to relief,' in order to 

'give the defendant fair notice of what the...claim is and the grounds on which it 

rests.'"13 Even under this lower notice pleading standard, however, a plaintiff must 

do more than recite the elements of a cause of action, and then make a blanket 

assertion of an entitlement to relief.14 Instead, a plaintiff must make a factual 

showing of his entitlement to relief by alleging sufficient facts that, when taken as 

true, suggest the required elements of a particular legal theory.15 “[W]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged - - but it has not “shown” - - “that the 

pleader is entitled to relief.”16

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.”17 A court may dismiss a 

 

11 Iqbal, 556 U.S. at 663-664.

12 Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. May 5, 2008) (Lancaster, J.).

13 Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

14 See Hellmann, 2008 WL 1969311 at *3.

15 See Twombly, 550 U.S. at 561.

16 Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)).

17 Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

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claim under Rule 12(b)(6) where there is a “dispositive issue of law.”18 If it is 

beyond a doubt that the non-moving party can prove no set of facts in support of its 

allegations, then a claim must be dismissed “without regard to whether it is based 

on an outlandish legal theory or on a close but ultimately unavailing one.”19 

III. DISCUSSION

As previously stated, Plaintiffs initially filed their action in the Court of 

Common Pleas in Snyder County, Pennsylvania. Plaintiffs allege three counts 

against Chapman Township: Count I: Taking without just compensation, Count II: 

Trespass, and Count III: Conversion.20 In its motion to dismiss, Chapman 

Township alleges that all three counts should be dismissed.21

First, Plaintiffs allege that Chapman Township’s actions violated the 

Takings Clause of the Fifth Amendment of the United States Constitution.22

Chapman Township argues that Count I should be dismissed because Plaintiffs 

have failed to plead facts indicating that they exhausted their remedies under 

Pennsylvania law.23 Chapman Township further contends that Count I should be 

 

18 Id. at 326.

19 Id. at 327.

20 ECF No. 1, Attachment 1.

21 ECF No. 3.

22 ECF No. 1, Attachment 1.

23 ECF No. 4 at 5.

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dismissed with prejudice because Plaintiffs “have in fact not sought and been 

denied payment of just compensation for any alleged taking.”24

In addition, Plaintiffs allege violations of state law in Counts II and III.25

Chapman Township argues that the Political Subdivision Tort Claims Act, 42 Pa. 

C.S.A. § 8541, et seq., provides governmental immunity and protects Chapman 

Township from suit for intentional torts. Because trespass and conversion are both 

intentional torts, it argues, Counts II and III should be dismissed without leave to 

amend.

The Fifth Amendment of the United States Constitution prohibits the taking 

of private property for public use without “just compensation.”26 If just 

compensation has been paid, however, no claim arises under the Fifth Amendment 

for the taking of private property.27 It follows that if the government has provided 

an adequate process for obtaining compensation, the property owner cannot claim 

a violation unless the property owner has gone through the process provided by the 

government and compensation was denied.28

Accordingly, prior to asserting a federal takings claim a plaintiff must first 

“seek compensation through the procedures the State has provided for doing so.”29

 

24 Id.

25 ECF No. 1, Attachment 1.

26 U.S. CONST. amend. V.

27 Williamson County Regional Planning Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-195 (1985).

28 Id.

29 Id. at 194.

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Therefore, a plaintiff must pursue his or her takings clause claims in State court, if 

a remedy exists, before the case can be ripe for review in federal court.

30

 

In Chainey v. Street,

31 plaintiff homeowners brought suit against the city of 

Philadelphia after their homes were destroyed in a fire caused by the MOVE 

bombing.32 The city had agreed to rebuild the plaintiffs’ homes but, after 

expending millions of dollars in excess of the original estimate, ceased repairing

and rebuilding them.

33 The plaintiffs brought suit under various claims, including a 

takings clause claim under the Fifth Amendment of the United States 

Constitution.34 The United States Court of Appeals for the Third Circuit held that 

the claim was not yet ripe to be heard in federal court because “Pennsylvania 

provides adequate process for plaintiffs to obtain just compensation” under 

Pennsylvania’s Eminent Domain Code.35

In the case at hand, Plaintiffs fail to plead any facts indicating that they have 

exhausted the procedure under the State law of the Commonwealth of 

Pennsylvania. Furthermore, Plaintiffs make no claim under Pennsylvania’s 

Eminent Domain Code in their pleadings. Therefore, Count I of Plaintiffs’ 

 

30 Danihel v. Office of President of U.S., 616 Fed. Appx. 467, 470 (3d Cir. 2015), citing Chainey v. Street, 523 F.3d 

200, 222 (3d Cir. 2008). 

31 Chainey v. Street, 523 F.3d at 204.

32 Id. at 205.

33 Id. at 207.

34 Id. at 207-208.

35 Id. at 222-223; 26 Pa. C.S.A. § 101, et al.

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complaint is not yet ripe for review in this Court and is, accordingly, dismissed

without prejudice.

Consequently, this Court does not have subject matter jurisdiction to review 

Counts II and III of Plaintiffs’ complaint. Section 1441(a) of Title 28 of the United 

States Code provides:

Except as otherwise expressly provided by Act of Congress, any civil 

action brought in a State court of which the district courts of the United 

States have original jurisdiction, may be removed by the defendant or the 

defendants, to the district court of the United States for the district and 

division embracing the place where such action is pending.

36

One basis for original jurisdiction for a district court exists where a civil action 

includes “a claim arising under the Constitution, laws, or treaties of the United 

States.37 Absent a proper basis for jurisdiction, however, a removed case must be 

remanded to State court.38 This is because an “action by a federal court which lacks 

subject matter jurisdiction is a nullity and . . . either party . . . can attack 

jurisdiction at any time even after judgment is rendered . . .”39 Therefore, the 

district court has the obligation and duty to carefully consider the pleadings, 

determine if subject matter jurisdiction exists, and, if it determines that it does not, 

remand the matter to State court.40

 

36 28 U.S.C. § 1441(a).

37 28 U.S.C. § 1441(c)(A).

38 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 96 (1998).

39 Strange v. Arkansas-Oklahoma Gas Corp., 537 F. Supp. 138, 139 (W.D. Ak. 1981), citing Amer. Fire & Cas. Co. 

v. Finn, 341 U.S. 6 (1951).

40 Strange, 537 F. Supp. at 139.

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Because Plaintiffs’ federal question claim is not yet ripe for review and 

because all other claims in Plaintiffs’ complaint are State law claims, this matter 

must be remanded to the proper State court.

IV. CONCLUSION

In accordance with the foregoing analysis, Chapman Township’s motion to 

dismiss is granted in part and denied in part. Count I of Plaintiffs’ action is 

dismissed without prejudice and the matter is remanded to the Court of Common 

Pleas of Snyder County. 

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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