HARRISBURG – The Borough of Middletown now says a Pennsylvania federal court has no jurisdiction over a federal lawsuit alleging its municipal officials sought to prevent a Chinese restaurant owner from opening and conducting daily business.
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.
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.
UPDATE
On June 18, the Borough again argued that the complaint was deficient – specifically, that HE Group, Inc. failed to adequately plead a violative equal protection claim, that Geosits was in fact eligible for qualified immunity and that the court did not have subject matter jurisdiction in this case.
The Borough repeatedly claimed that the plaintiff should have consulted the local Zoning Hearing Board for adequate relief in the instant matter.
“Geosits’ actions, however, do not represent the Borough’s final interpretation or application of the zoning ordinances. Instead, only the Borough Zoning Hearing Board’s (ZHB) determination constitutes a ‘final adjudication,’ and only the ZHB can determine whether Geosits misinterpreted or misapplied any provision of the Borough’s ordinance with respect to plaintiff,” according to counsel for the Borough.
“Had plaintiff filed for relief with the ZHB from Geosits’ conduct, the ZHB could have determined whether the lot plaintiff was seeking to build was consistent with the approved plans it had submitted to the Borough, whether it was proper for Geosits to order that work be stopped in the construction of the lot, and whether citations and/or notices of violations issued to plaintiff were appropriate. Plaintiff sought no such relief.”
Geosits also deserves qualified immunity, according to the Borough.
“Plaintiff does not reference a single zoning or municipal code regulation in the amended complaint, nor is there an allegation of how the zoning and municipal code regulations were disparately applied to plaintiff in comparison to similarly situated owners. Indeed, plaintiff secured the permit it requested and then unilaterally decided to violate it,” the Borough said.
“In short, plaintiff has not established a constitutional violation, despite its conclusory statement to the contrary. It is well-settled that ‘if a plaintiff fails to establish a constitutional violation, ‘the qualified immunity inquiry is at an end; the officer is entitled to immunity. Geosits is entitled to qualified immunity here, and Plaintiff’s claim against him should be dismissed, with prejudice.
Finally, the Borough said the complaint should be dismissed due to the plaintiff nit seeking proper remedies through the zoning board.
“If plaintiff had sought review of Geosits’ conduct from the ZHB, the ZHB could have determined whether plaintiff’s construction was consistent with the approved plans it had submitted to the Borough, whether it was proper for Geosits to order the work stoppage, and whether the notices of violations issued to plaintiff were appropriate,” the Borough asserted.
“Plaintiff made no such appeal and sought no such review. In short, consistent with authority in this Circuit (as cited by Plaintiff), the Borough’s Zoning Hearing Board must make these determinations before plaintiff’s equal protection claim is ripe for judicial review. Plaintiff’s amended complaint should be dismissed.”
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