PHILADELPHIA – Jenkintown residents, including a former mayoral candidate, are now also seeking reconsideration of a recent summary judgment motion, in a case from the plaintiffs who say the Borough Manager and other officials retaliated against them through a series of bogus zoning code violations.
Plaintiffs David and Margaret Downs alleged defendants Jenkintown Solicitor and Montgomery County Sheriff Sean Kilkenny, Jenkintown Borough Council President Debora Pancoe, Borough Council Vice President Richard Bunker, and Borough Manager George Locke retaliated against them for exercising their First Amendment Rights.
The dispute began in August 2016 when a person renting a property adjacent to the Downs’ property began operating a “concrete/cement finishing business” on the property in violation of zoning laws, court filings said.
Despite continuing to operate the business on the property, the renter’s zoning code citation was abated by the borough manager. The neighbor conflict ensued for more than a year and included the renter engaging “in multiple criminal acts” against the Downses, and falsely reporting that the Downses were operating a landscape business on their property.
Margaret Downs sought public records to research the borough’s handling of past zoning issues, and eventually decided to seek election for the office of Mayor of Jenkintown.
She claims her running for office upset some of the defendants who were supporting another candidate. This resulted in several “disparaging comments” on the community blog page about Margaret Downs, who claimed the defendants “retaliated against” the residents that supported her, court filings said.
After losing the race, the Downses said they continued to receive false accusations against them for code violations filed by the renter, and even when the borough manager inspected their property and found the allegations to be false, they were still issued a zoning violation.
Subsequently, the Downses sued the town over the situation. In response, the defendants motioned for dismissal, argued the plaintiffs failed to show “sufficient facts” for their First Amendment retaliation and also argued the plaintiffs’ “state law abuse” claim was improper.
The defendants also claimed the Downses did not show sufficient facts regarding their claims of “civil conspiracy” and that the defendants “are entitled to qualified immunity” and asked for punitive damages to be removed.
U.S. District Court Judge Jan E. DuBois dismissed the retaliation claim and punitive damages claim against individual defendants, as well as the Downses’ abuse of process claim on March 22, 2019. However, DuBois also gave the Downses leave to file a second amended complaint.
Claims that survived the dismissal motion include: (1) The First Amendment retaliation claim against the Borough and Pancoe, Bunker, and Locke, in their individual capacities, (2) The civil conspiracy claim against Locke in his official and individual capacities, and (3) The claims for punitive damages against the remaining individual defendants in their individual capacities.
Meanwhile, on May 22, DuBois approved a motion for summary judgment which dismissed the Borough of Jenkintown, Pancoe and Bunker from the litigation, but denied summary judgment as to Locke and retained him as a defendant party.
On June 4, Locke filed a motion to reconsider that decision.
“There is no competent evidence from any source that George Locke acted in any way to violate the First Amendment rights of the plaintiffs, and any mistake he may have made in initiating or pursuing the notice of violation, a violation that plaintiffs did not initially appeal, should be shielded by the doctrine of qualified immunity,” Locke’s reconsideration motion stated, in part.
“The court opinion does not cite to any federal cases from any jurisdiction that have similar facts, or could conceivably have placed Mr. Locke on notice that his issuance of a civil notice of violation on a zoning issue in this case following consultation with the Solicitor, the source of advice to the Borough on Code Enforcement, would violate the First Amendment rights of plaintiffs.”
As a result, Locke respectfully requests the court’s reconsideration of its order denying summary judgment and his defense of qualified immunity and the entry of an order granting summary judgment – or alternatively, a delineation of what relevant material facts exist that preclude qualified immunity for George Locke and would be at issue in a trial of this case.
Likewise, the plaintiffs filed their own motion for reconsideration on June 29, believing the Court should have ruled differently with respect to their claims of First Amendment retaliation.
“For purposes of summary judgment, the Court should take judicial notice that when Kilkenny is advising the Borough, that he is consulting with the Borough’s leaders, namely, defendants Pancoe and Bunker as well as Locke. The fact that Locke is preparing the Memorandum and making decisions also clearly demonstrates that he speaks and acts on behalf of the Borough,” the plaintiffs’ motion states, in part.
“These facts and the reasonable inferences derived therefrom must be afforded to plaintiffs in summary judgment practice. The Court erred by not making these summary judgment factual determinations.”
The plaintiff also feel the Borough should be subject to Monell liability.
“By virtue of the fact that defendant Pancoe and/or Bunker are subject to 1983 liability, then so is the Borough of Jenkintown. If the Court decides not to reverse the May 22, 2020 order as it pertains to Pancoe and Bunker then Jenkintown should still be reinstated as a defendant because Locke was a policy maker,” according to the motion.
The plaintiffs are represented by William J. Fox of the Law Office of William J. Fox, in Philadelphia.
The defendants are represented by Robert P. DiDomenicis and Suzanne McDonough of Holsten & Associates, in Media.
U.S. District Court for the Eastern District of Pennsylvania case 2:18-cv-04529
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com