Nicholas Malfitano Jul. 13, 2015, 2:47pm


PHILADELPHIA – A judge has dismissed a federal claim of due process violations under the Fourth and Fourteenth Amendments made by a former homeowner against a married couple and the wife’s father who acquired his property at auction.

Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania ruled the motion for partial judgment on the pleadings made by North Wales residents William Loughery and Jennifer Loughery, and her father Steven Howard of Lansdale, would be approved, with respect to the federal claim of violating due process brought by Flourtown resident Joseph Timoney, Jr.

Timoney alleged that his house in Upper Gwynedd Township was sold to the Lougherys at a Sheriff’s sale in December 2013, but according to Timoney, he did not learn of the sale until he arrived at the house in January 2014. Upon his arrival, he discovered a van parked in the driveway and defendants William Loughery and Stephen Howard standing in the garage, accompanied by a locksmith.

Timoney explained when asked about the presence of the three men in “his house," Howard replied it was no longer Timoney’s house and mentioned the purchase made at the Sheriff’s sale. A confrontation ensued, which prompted the locksmith to call the Upper Gwynedd Township Police Department. A short time later, Jennifer Loughery arrived at the house, along with two police officers. According to court records, the officers spoke to the plaintiff and defendants separately.

According to Timoney, one of the police officers directed him not to enter the home, and the other officer stated: “You don’t own the home – [defendants] bought it at a Sheriff’s sale.” Timoney alleged he explained he had received no notice of the sale in question, but that the Upper Gwynedd officers ignored him. Finally, Timoney was permitted to enter the house for approximately 10 minutes to retrieve some of his personal belongings.

Timoney further claimed the officers at the scene told him that he would be contacted at a later date, so that he could retrieve the rest of his belongings. However, Timoney’s lawsuit avers, “Upon information and belief that at behest of defendants, the police officers told plaintiff that if he returned to the home he would be charged with trespass and arrested.”

Since that time, Timoney alleged he has not been contacted to retrieve his personal effects, which he stated are worth approximately $10,000.

Timoney felt the defendants were “liable for constitutional violations because they engaged the Upper Gwynedd Township Police Department to remove plaintiff from the disputed property.” Upper Gwynedd Township’s Police Department, originally a defendant in this action, has since been dismissed from the litigation.

Timoney pled that the defendants were liable for constitutional violations pursuant to federal law, on the grounds that they behaved as state actors and “clothed themselves with color of state authority through the use of the Upper Gwynedd Township Police Department, in addition to the police having acted on the supposed orders of the defendants – who allegedly “caused the state to use legal and executory force.”

The second Amended Complaint also contained a negligence claim against all defendants and an assault and battery claim against Howard.

The defendants sought judgment on the pleadings in their favor with respect to Count I of Timoney’s second amended complaint, which contains plaintiff’s federal constitutional claims.

They argued that plaintiff has failed properly to allege liability under federal law, and specifically, the Lougherys took the position that plaintiff did not adequately allege that they operated as state actors or “under color of state law” as required for a successful claim. In addition, they maintained that even if their conduct did amount to state, plaintiff has failed to establish that any constitutional violation took place as a result of such conduct.

“Plaintiff’s second amended complaint contains no allegations to support his claim that the Lougherys acted ‘under color of state law’. He has not plausibly alleged that the Lougherys ‘acted as…joint participants’ with the state. Nor has plaintiff pleaded “the existence of a prearranged plan by which the police substituted the judgment of private parties for their own official authority,” Bartle said. “Plaintiff merely claims that the Lougherys were present at the disputed home when the police were called and that they spoke with the officers. This type of communication with law enforcement officers does not amount to activity committed ‘under color of state law.”

Bartle added the defendants were not linked to the supposed violation of state law.

“Plaintiff’s arguments in support of his pleading fail for an additional reason. Nowhere in his second amended complaint has plaintiff alleged facts linking the Lougherys to the challenged state action. The Lougherys played no role in “enlisting” the police to remove plaintiff from the house. Indeed, according to the second amended complaint, it was the locksmith – and not either of the Lougherys – who called the police department,” Bartle said. “Although plaintiff claims that the responding officers ‘spoke to plaintiffs and defendants separately,’ he does not allege that either of the Lougherys gave any direction to the police or to any other state actor. In sum, plaintiff has failed adequately to plead that the Lougherys had ‘personal involvement in the alleged wrongs.”

“Having determined that the alleged constitutional deprivation was not ‘committed by a person acting under color of state law,’ we need not reach the issue whether plaintiff has adequately pleaded that such a deprivation occurred. We will grant the motion of the Lougherys for partial judgment on the pleadings and enter judgment in their favor and against plaintiff,” Bartle said.

The plaintiff is seeking judgment individually, jointly and severally, in an amount in excess of $75,000, including compensatory, statutory and punitive damages, attorney’s fees, costs, interest, injunctive relief and other relief the Court may deem appropriate.

The plaintiff is represented by Matthew B. Weisberg and Chad Brandon Gordon of Weisberg Law, in Morton.

The defendants are represented by Daniel T. Lewbart of Gerolamo McNulty Divis & Lewbart in Philadelphia, Brian McVan in Glenside and John R. Brown in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-04474

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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