PHILADELPHIA – The Borough of Middletown says for the second time that a federal lawsuit alleging its municipal officials sought to prevent a Chinese restaurant owner from opening and conducting daily business operations fails to state substantive claims.
The suit was first filed by HE Group, Inc. on Jan. 24 in the U.S. District Court for the Middle District of Pennsylvania against the Borough and its Codes and Zoning Officer Al Geosits, alleging the owner was denied equal treatment when told to comply with arbitrary zoning enforcement, related in part to off-street parking, and summarily issued fines.
In one example, the suit stated, owner Howard Dong spent approximately $10,000 in engineering fees.
“The citations were arbitrary and capricious and directly contrary to the representations and assurances provided to [plaintiff] by [defendant] on behalf of the Borough and were motivated by an improper desire to frustrate [the plaintiff’s] lawful business opportunities,” the suit stated.
“[The plaintiff] has been treated in an inconsistent and capricious manner, with contradictory directives and orders all of which were intended to cause the…restaurant to ‘fall’ and to ‘bleed’ the company.”
The plaintiff referred to the municipality’s requests as “irrational” and “wholly arbitrary.”
On April 3, the municipal defendants filed a motion to dismiss for failure to state a claim or in the alternative, to strike allegations of the complaint and compel a more definite claim.
“Count I fails to state a claim or cause of action for which relief may be granted as to both defendants because plaintiff’s conclusory allegations that other properties in close proximity to the property were not treated as it was treated are insufficient to state a viable equal protection claim for disparate treatment,” according to the motion.
“Count I fails to state a claim or cause of action for which relief may be granted as to the Borough, as it fails to state a viable claim for municipal liability. Among other reasons, plaintiff does not identify any policymaking action taken by the Borough – including any provision of the Borough’s zoning ordinance, stormwater management ordinance, floodplain ordinance, building codes ordinance (and incorporated Pennsylvania Uniform Construction Code) or property maintenance code ordinance (and incorporated International Property Maintenance Code) – that was in any way improper or proximately caused any alleged constitutional injury to plaintiff.”
In addition, the response motion alleged any individual claims against Geosits were duplicative of any claims against the Borough and thus, Geosits should be dismissed from the litigation. Furthermore, the motion argued that even if Geosits were a valid defendant, he would be protected from suit via qualified immunity.
When the plaintiff was granted leave to file an amended complaint, HE Group, Inc. did so on May 1 – in the process, dropping any action against Geosits in his official capacity as Zoning Officer, adding certain factual allegations, and asserting the same single count against the Borough and Mr. Geosits in his individual capacity.
In response, the defendants reinstated their objections to the lawsuit on May 21, saying the plaintiff couldn’t prove he was treated disparately or municipal liability on the part of the Borough.
“[The suit] fails to state a claim or cause of action for which relief may be granted as to both defendants because plaintiff’s conclusory allegations that other properties in close proximity to the property were not treated as it was treated are insufficient to state a viable equal protection claim for disparate treatment,” the renewed dismissal motion read.
“While plaintiff has added allegations relating to the general use of those properties, the descriptions are insufficiently specific to ascertain whether they are of the necessary level of similarity to constitute ‘similarly situated.’ First, ‘Property 4’ is not a commercial property, but a private residence, a fundamental difference in use.”
The suit seeks damages for expenses incurred by the plaintiff, as well as attorneys’ fees and costs.
The plaintiff is represented by Aaron D. Martin and Veronica L. Morrison of Mette Evans & Woodside, in Harrisburg.
The defendants are represented by James A. Diamond of Eckert Seamans Cherin & Mellott, also in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 1:20-cv-00132
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com