IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward L. Filby

, Elizabeth L. Davidson, :

Appellants :

:

v. : No. 312 C.D. 2018

: SUBMITTED: September 14, 2018 Colebrookdale Township and Jeffery : Karver Individually and in his capacity : as Township Solicitor for Colebrookdale : Township and Cindy Conrad : Individually and her capacity as : Township Manager for Colebrookdale : Township and David Viola Individually : and in his capacity as Police Chief of : Colebrookdale Township and Allan : Stauffer Individually and in his capacity : as Zoning Officer of Colebrookdale : Township and Paul Labe Individually : and in his capacity as Zoning Officer : of Colebrookdale Township c/o LTL : Consultants and David Pollock and : Dorothy Po llock and Michael Hanley : and Diane Hanley and Rick Rife and : Darla Rife and John Schrack and : Elizabeth Schrack and Russell Mohr : and Sally Mohr and Sherman Home : Improvement :

BEFORE: HONORABLE MARY HANNAH LEAVITT

, President Judge

HONORABLE RENÉE COHN JUBELIRER , Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: October 30, 2018

Edwar d L. Filby and Elizabeth L. Davidso n (Appellants) appeal from the

November 15, 2017 Order of the Court of Common Plea s of Berks County (Trial Court)
sustaining the Preliminary Objections filed by Colebrookdale Township (Township)

,2

Jeff e r y Karver, Cindy Conrad, David Viola, Allan Stauffer, and Paul Labe ( together,
Appellees) and dismissing Appellants’ Complaint with p rejudice. 1 We affirm the Trial

Court’s Order

. Background
Appellants reside at 34 Elaine Drive in the Township (Property)

. Ms. Davidson

owns the P roperty ; Mr. Filby has resided with Ms. Da vidson at the P roperty since
October 2013. Compl. ¶¶ 1, 16. For the past several years, Appellants have been

involved in a series of disputes with their neighbors

. According to Appellants, their
neighbors repeatedly complained to Township officials that items stored outside of

their P roperty

— including old trucks, a refrigerator, furniture, cabinets, c arpets, and

tools

— were “junk.” Id

. ¶¶ 17, 19, 22, 25

- 28, 30, 33

- 34, 43. Appellants also averred

that their neighbors complained about overgrown hedge s on the Property

. Id. ¶¶ 22

-
23

. As a result of these complaints, the Township issued zoning violation s against

Ms. Davidson as the P roperty’s owner

. The violations were based on Appellant s’

accumulation of excessive trash on the P roperty and their failure to obtain a zoning
permit to maintain a junkyard on the P roperty. Id.

, Exs. C, X.

On May 8, 2017 , Appellants filed a pro se Complaint against Appellees

, both
individually and in their capacity as Township officials

. 2 In Counts III

, IV , VII, and
VIII of the Complaint , Appellants asserted causes of action for “ official oppression ”
against Mr. Viola, the Township Chief of Police; Ms. Conrad, the Township Manager;

1 Although Appellants named the Township as a Defendant in the caption and body of the Complaint, see Compl. ¶ 2, they did not identify the Township as a Defendant in any of the specified causes of action therein, see id. Counts I

- VIII.

2 The Trial Court previously sustained Preliminary Objections filed by the other 12
D efendants identified in Appellants ’ Complaint and dismiss ed the causes of action asserted against those D efendants. Thus, we will address only the causes of action remaining against Appellees.3

and Mr. Stauffer and Mr. Labe, two Township Zoning Officers. Appellants ave rred

that :

 Mr. Viola failed to investigate allegations that others had vandalized and
trespassed up on Appellants’ P roperty and committed acts of violence upon

them , Compl. ¶¶ 58

- 59 ; Appellants allege d that “a canvas door to the garage
was torn off,” an antique desk was vandalized, a neighbor accosted Mr. Filby

, and “gunshots [were fired] into [Ms.] Davidson’s garage,” id. ¶¶ 22, 29

- 30,

59;

 Ms. Conrad showed a preference for Appellants’ next

- door neighbors, David
and Dorothy Pollock, when Appellants complained that the Pollocks were
operating an unlicensed day care center at their property

, id. ¶¶ 63

- 65 ;

 Mr. Stauffer engaged in preferential treatment by criticizing the condition of
Appellants’ P roperty but not leveling similar criticisms about the ir n eighbors ’

propert ies

, particularly with respect to overgrown trees and “the massive
amount of debris in the back of [the] Pollocks’ property

, ” id. ¶ ¶ 23, 84 ; and

 Mr. Labe relied on “staged” photos provided by the Pollocks that did not

reflect the true cond ition of Appellants’ P roperty
, id. ¶¶ 87

- 88 ; Appellants
alleged that the photos were “taken at specific times while [Appellants] were

movi ng items in and out of [their] [P] roperty to prepare for renovations,” id.
¶ 8 7; see id. at 17

- 22 & Ex. W

. In Count V of the Complaint , Appellants asserted cause s of action for “ official
oppression ” and “ conflict of interest ” against Mr. Karv er, the Township Solicitor

. Appellants averred that Mr. Karver’s law partner , Craig Boyd, represented Mr. Filby
in a mortgage fore closure action and that Mr. Karver drafted Mr. Filby’s father’s will.

Id. ¶¶ 69

- 70

. Because Mr. Filby was dissatisfied with Mr. Boyd’s representation, Mr.4

Filby “sought other means to settle the mortgage foreclosure matter.” Id. ¶ 70. Mr.
“Filby believe [d] the prior history with [Mr.] Karver coupled with the experience with
[Mr.] Karver’s law firm amount to an unavoidable conflict of interest.” Id. ¶ 71.
Appellants further a verred that Mr. Karver and the Pollocks have a “ personal ”
relationship

, attend “ the same house of worship ,” and “ serve together o [ n ] committees ”

and, because of these connections, the Pollocks were permitted to run an unlicensed
day care center at their property

. Id. ¶¶ 72

- 73. Finally, Appellants averred that Mr.

Karver told Ms. Davidson that she would not be allowed representation at the zoning

violation hearing before a Magisterial District Judge (MDJ) and that if Mr. Filby

vacated the P roperty, the fine imposed by the MDJ would be red uced. Id. ¶¶ 74

- 75

. On June 16, 2017

, Appellees filed Preliminary Objections in the Nature of a
Demurrer, asserting that Appellants’ Complaint failed to state a ny cognizable cause of
action against them . On July 6, 2017, Appellants filed an Answer to th e Preliminary
Objections.

O n November 15, 2017, the Trial Court s ustain ed Appellees’ Preliminary
Objections and d ismiss ed Appellants’ Complaint with prejudice. In its Pa. R.A.P.
1925(a) Opinion, the Trial Court explained its reasoning as follows:

[Appell ees] responded to [Appellants’] and the neighbor defendants ’ complaints against each other. Township held hearings concerning alleged violations of Township ordinances and statutes

. [Appellants] express dissatisfaction wi th the results of the officials’ actions regarding [Appellants’] disputes with the other defendants. [Appellants] do not allege any violation of any standard of condu ct, statute, or law by [Appellees]

. [Appellants] do not contend that the official s deprived t hem of any rights or privileges. Furthermore, [Appellants] d id not set forth any cognizable cause of action against either the Township or its official s. For these re asons, this c ourt sustained [Appellees’] [P] reliminary [O] bjections and dismissed the ca uses of action against them.

. . .5

. . . [Appellees] did not cause any injury to [Appellants]. They simply conducted official business that did not satisfy [Appellants] or did not
accomp lish the goals [ Appellants ] wanted.

Trial Ct. Op., 3/20/18, at 1

- 2, 4

- 5. Appellants now appeal to this Court.

Issues
(1) Did the Trial Court abuse its discretion in sustaining Appellees’ Preliminary
Objections?
(2) Did Appellants allege sufficient facts to overcome dismissal of their
Complaint in violation of their constitutional rights?
Analysis

Our Court has explaine d the applicable sta ndard and scop e of review as follows:

When reviewing a t rial c ourt’ s order sustaining preliminary objections in the nature of a demurrer, our standard of review is de novo and our scope of review is plenary. P reliminary objections may be sustained when, based on the facts pled, it is clear that the plaintiff will be unable to e stablish a right to relief. All well

- pled material facts alleged in the complaint, and the inferences fa irly deducible therefrom , must be accepted as true. However, conclusions of law, argumentative allegations, expressions of opinion and unwarranted infe rences need not be accepted.

Young v. Estate of Young

, 138 A.3d 78 , 84

- 85 (Pa. Cmwlth. 2016) (internal c itations
omitted).

1. Official Oppression

In Counts III, IV, V, VII, and VIII of the Complaint, Appellants asserted causes

of action for “ official oppression ” against Mr. Viola, Ms. Conrad, Mr. Stauffer, Mr.

Labe , and Mr. Karver . Pennsylvania’s o fficial oppression statute , which appears in the

Crimes Code, states :6

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he: (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or (2) denies or impedes another in the exercise o r enjoyment of any right, privilege, power or immunity.

18 Pa. C.S. § 5301 (emphasis added)

. Our appellate courts have determined that the crime of official oppression cannot
be the basis for civil liability against public officials. See Wilson v. Marro w , 917 A.2d
357, 365 n.9 (Pa. Cmwlth. 2007) (“[O] fficial oppressi on is a state criminal offense.
Pennsylvania’s official oppression statute does not give rise to a private cause of

action

. ”) (internal citation omitted) ; see also D’Errico v. DeFazio , 763 A .2d 424, 430
(Pa. Super. 2000) (“ Without some indication in [Section] 5301 [of the Crimes Code]
that the legislature contemplated a private right of action for acts of official oppression,

we are

. . . reluctant to create one .”)

. Therefore, w e conclude th at Appellants failed to
state a cognizable claim of “ official oppression ” against Mr. Viola, Ms. Conrad, Mr.

Stauffer, Mr. Labe , and Mr. Karver

. 2. Co nflict of Interest
In Count V of the Complaint, Appellants also asserted a cause of action for

“ conflict of interest ” against Mr. Karver

. Pennsylvania law , however, does not
recognize a common law tort claim against a public official for “ conflict of interest. ”

Rather, such claims fall within the purview of the Public Official and Employee Ethics
Act (Ethics Act), 65 Pa

. C.S. §§ 1101

- 1113. Section 1103(a) of the Ethics Act stat es that “[n]o public official or public employee shall engage in conduct that constitutes a

conflict of interest.” 6 5 Pa. C.S. § 1103(a)

. As the Township S olicitor, Mr. Karver is
a public employee covered by the provisions of the Ethics Act. See P.J.S. v. Pa. State7

Ethics Comm’n , 697 A.2d 286, 291 (Pa. Cmwlth. 1997) ( en banc ), aff’d , 723 A.2d 174
(Pa. 1999)

. The Ethics Act defines “conf lict of interest” as a public official’s us e of the
authority of his office to obtain a private pecuniary benefit for himself, a member of
his immediate family, or a business with which he or a member of his immediate family

is associated. 65 Pa. C.S. § 1 102

. Here

, Appellants did not allege that Mr. Karver use d
his public office to obtain any pecuniary gain ; they merely averred that his “conflict of
interest” resulted in the Pollocks’ operation of an unlicensed day care center

. Compl.
¶ 73. Th us , Appellants failed to state a conflict of interest claim under the E t hics Act. 3
Appellants also failed to plead any facts to support a cause of action for breach
of fiduciary duty with regard to Mr. Karver’s representation of Mr. Filby in private

matters

. See Maritrans GP

, Inc. v. Pepper, Hamilton & Scheetz , 602 A.2d 1277 , 1283
( Pa. 1992) (stating that attorneys may be civilly liable for engaging in conduct, such as
conflicts of interest, that violates their fiduciary duties to their clients)

. Appellants
simply alleged , without any further explanation, that Mr. Filby ’s “ prior history with
[Mr.] Karver coupled with the experience with [Mr.] Karver’s law firm amount to an
unavoidable conflict of interest.” Compl. ¶ 71

. Therefore

, we conclud e tha t Appellants failed to state a cognizable claim of

“ conflict of interest ” against Mr. Karver

. 3. Due Process

I n their brief s filed with this Court

, Appellants contend that Appellees violated

their procedural due process rights . Appellant s ’ Br. at 25

- 28. Specif i cally, Appellants

3 In any event, t he Ethics Act is administered and enforced by the State Ethics Commission.
See 65 Pa. C.S. § § 1101.1(c) , 1107

. An individual may initiate a legal inquiry into a public official’s alleged conflict of interest by filing a complaint with the State Ethics Commission. 65 Pa. C.S. § 1108(a).8

claim that the “Township has infringed upon their rights to their Property, by
attempting to control the activity at the Property and issuing citations bas ed on known

false statements.” Appellants’ Reply Br. at 15. Appellants a rgue that their “asset in
their Property has been wrongfully seized, without due process, and without proper

notice.” Id. at 16.

I n their Complaint

, however, Appellants did not plead a due process violation,
nor did they allege any facts to support the ir claim

, made for the first time on appeal

, that Appellees violated their procedural due process rights

. Rather, Appell ants baldly
alleged that Ms. Davidson did not receive various Township “fines, notices and letters ”
regarding the P roperty. Compl. ¶¶ 24, 31. Importantly, Appellants admit ted that Ms.

Davidson did receive at least two Notices of Violation from the Township. Id. ¶¶ 23,

27. Appellants also attended several Township meetings , at which Ms. Davidson
offered public comments rega rding the alleged zoning infractions

. Id. ¶¶ 34

- 39, 41. 4
Apparently recognizing the deficiencies in their Complaint, Appellants ask this
Court to “liberally construe” the Complaint because of their pro se status. Appellants’
Reply Br. at 6, 14. While it is true that pro se pleadings should be construed liberally,

“ a pro se litigant is not to be given any particular advantage because of his lack of
knowledge of the law. ” Mueller v. Pa. State Police Headquarters

, 532 A.2d 900 , 902
(Pa. Cmwlth. 1987). I t is well settled that

4 Our Court has stated:

The Rules of Civil Procedure allow a plaintiff to fi le more than one cause of act ion against the same defendant. Pa. R.C.P No. 1020. Each claim, however, must be presented in a self

- sufficient separate count, which includes averments of facts pertaining to the particular claim and relief sought. Id.

Com . v. Parisi

, 873 A.2d 3 , 9 (Pa. Cmwlth. 2005).9

[b] lind suspicions and unsupported accusations simply do not state a cause of action pursuant to any theory of tort recovery. Even our present liberalized system of pleading requires that the material facts upon which a cause of act ion is premised be pled with sufficient specificity so as to set forth the prima facie elements of the tort or torts alleged.

Orange Stones Co. v. City of Re a ding

, 87 A.3d 1014 , 1025 (Pa. Cmwlth. 2014) (quoting
Feingold v. Hill

, 521 A.2d 33, 38 (Pa

. Supe r. 1987)). Here, w e are unable to d iscern

, on the face of Appellant s ’ C omplaint

, what due process violation s Appellees
purportedly committed.

Conclusion
In sum, Appellants simply did not plead facts that , if accepted as true, establish ed
their right to relief under any of the causes of action asserted against Appellees

. Accordingly, we affirm the Trial Court’s Order.

________________________________ ELLEN CEISLER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward L. Filby

, Elizabeth L. Davidson, :

Appellants :

:

v. : No. 312 C.D. 2018

: Colebrookdale Township and Jeffery : Karver Individually and in his capacity : as Township Solicitor for Colebrookdale : Township and Cindy Conrad : Individually and her capacity as : Township Manager for Colebrookdale : Township and David Viola Individually : and in his capacity as Police Chief of : Colebrookdale Township and Allan : Stauffer Individually and in his capacity : as Zoning Officer of Colebrookdale : Township and Paul Labe Individually : and in his capacity as Zoning Officer : of Colebrookdale Township c/o LTL : Consultants and David Pollock and : Dorothy Pollock and Michael Hanley : and Diane Hanley and Rick Rife and : Darla Rife and John Schrack and : Elizabeth Schrack and Russell Mohr : and Sally Mohr and Sherman Home : Improvement :

O R D E R

AND NOW, this 30 th day of October, 201 8

, the O rder of the Berks County

Court of Common Pleas, dated November 15, 2017 , is hereby AFFIRMED

.

________________________________ ELLEN CEISLER, Judge