Family ejected from Kutztown trailer property has motion to reconsider eviction order denied

By Nicholas Malfitano | Apr 2, 2019

PHILADELPHIA – A federal judge has denied a motion to reconsider from a family allegedly and wrongfully ejected from a Kutztown property.

On March 27, U.S. District Court for the Eastern District of Pennsylvania Magistrate Judge Henry S. Perkin made a denial of the motion from plaintiffs William F. Brobst Hr., Roxanne Brobst and Keshia Brobst.

According to the litigation, Brobst Sr., by and through his attorney David W. Crossett, filed a complaint in ejectment in the Berks County Court of Common Pleas in June 2015, seeking to eject his son, William F. Brobst, Jr., his daughter-in-law, Roxanne Brobst and his granddaughter, Keshia Brobst from a parcel of property Brobst Sr. owns on Kemp Road in Kutztown.

The plaintiffs resided in a trailer that had been placed on the property, while Brobst Sr. also sought a right of possession as surviving tenant by the entireties. The plaintiffs, who were the defendants in the Berks County action, looked to obtain “reformation of the 1971 deed of the real property or, in the alternative, the grant of a constructive trust in the property for an undetermined amount of money and services.”

Judge James M. Lillis of the Berks County court granted summary judgment to Brobst Sr., and a judgment for possession which granted him sole ownership and the sole right to possession of the real property by order signed on June 22, 2016.

On July 19 of that year, the Sheriff’s Department executed a writ of possession on the property, which became the subject incident of the litigation.

“Brobst Jr. emerged from his trailer home onto the porch and was yelled at by one of the Sheriff’s deputies that he had fifteen minutes to vacate the real property, and the deputy came up to the door. Two sheriffs followed Brobst Jr. into the house and one followed him to the bathroom. Brobst Jr. knocked on the door and then opened the door to tell Keshia, who is approximately twenty-five years old, that they had to go,” Perkin wrote.

“The Sheriff with Brobst Jr. pushed open the bathroom door revealing a naked Keshia Brobst getting out of the shower. Another Sheriff asked for and was given the keys to the trailer where Ruth and Neil had lived, which Brobst Jr. told him was used for storage. 

Brobst Jr. called his wife, Roxanne Brobst, at work and she drove home. Brobst Jr. moved some of the family’s vehicles onto the neighbor’s land and the plaintiffs were permitted to gather any personal property needed, such as clothing, medications, guns and their seven cats and left the property at approximately 2:15-2:30 p.m. on that date. The Sheriffs did not change the locks on the trailer.”

The plaintiffs filed an emergency writ of possession and an appeal of the possession judgment, both later struck down. Meanwhile, the plaintiffs continued to reside on the property until January 2017 and removed their trailer from it the following month.

On July 27, 2016, plaintiffs filed the instant matter against Brobst Sr., attorney Crossett, The Smith Law Group, LLC (attorney Crossett’s law firm), and James M. Smith, Esq. (collectively “The Smith Defendants”), while the state court appeal was ongoing. Upon consent of the parties, Chief Judge Stengel ordered the case transferred for final disposition pursuant to Federal Rule of Civil Procedure 636 on Sept. 1, 2017.

“It appears that plaintiffs seek reconsideration to correct a clear error of law or fact or to prevent manifest injustice. Plaintiffs contend that ‘the Court has plainly misapplied precedent’ and that there is no requirement of a conspiracy to prevail on a claim pursuant to 42 U.S.C. Section 1983 and ‘because the Court grafted a conspiracy requirement to plaintiffs’ claims, its ruling was not in accordance with law and manifestly unjust,” according to Perkin.

While the plaintiffs attempted to argue that the Court was required to show conspiracy to prevail on a Section 1983 claim, Perkin described such a perception as “mistaken.”

“This Court first examined the plaintiffs’ claims in order to determine how plaintiffs claimed that the defendants were state actors. Part of this analysis involved an examination of whether a private party has acted with the help of or in concert with state officials,” Perkin stated.

According to plaintiff counsel, they next alleged wrongful conduct in the filing and service of court orders made the litigants state actors and their actions “fairly attributable to the state.” However, Perkin disagreed.

Perkin clarified that “alleged abuse or misuse of an otherwise constitutional statute or process does not provide a Section 1983 cause of action against a private party”, thus Brobst Sr. and his attorneys’ invocation of state execution procedures did not make them state actors, and the plaintiffs’ claims for their Section 1983 rights being violated were in fact properly dismissed.

“Plaintiffs do not show that this Court’s previous grant of summary judgment to defendants was wrong, much less that it was so wrong that adhering to it would work a manifest injustice,” Perkin said.

“Plaintiffs express their disagreement with this Court’s conclusions, but ‘mere dissatisfaction with the Court’s factual or legal rulings…does not meet the manifest injustice standard; the motion for reconsideration should be more than a forum to express dissatisfaction with the result ordered in the Court’s opinion.”

The plaintiffs are represented by Joseph A. O’Keefe of O’Keefe Miller & Thielen in Fleetwood, Ryan Charles Gilman of Maceau Law in Colorado Springs, Colo., Richard F. Klineburger III of Klineburger & Nussey in Philadelphia and William Richard Allen Rush of Rush Law Group in Reading.

The defendants are represented by Paul C. Troy and Thomas J. Zimmerman of Kane Pugh Troy Knoell & Kramer in Norristown and Kevin T. Fogerty in Allentown

U.S. District Court for the Eastern District of Pennsylvania case 5:16-cv-04051

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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