PHILADELPHIA – A former Jenkintown mayoral candidate and her spouse who lost their retaliation case against a number of borough officials are appealing their case to the U.S. Court of Appeals for the Third Circuit.
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 claimed 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 and 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.
“The provisions of the Jenkintown Borough Code relied upon by plaintiffs in their motion for reconsideration do not show that Locke is a policymaker with respect to the zoning code,” DuBois stated in an opinion in the case on Aug. 10.
“However, these provisions say nothing with respect to the Borough Manager’s power to make policy – they merely show that the Borough Manager is empowered to carry out the Borough Council’s policies. That is not evidence that the Borough Manager is a policymaking official.”
According to DuBois, even if the Court found that Locke had policymaking authority in the area of zoning code enforcement, there is no evidence that Locke’s authority in this area was final and unreviewable.
“As discussed in the Court’s prior opinion, Locke reports to the Borough Council, and his decisions with respect to the zoning code are appealable to the Zoning Hearing Board,” DuBois stated.
“Indeed, in this case, the second notice of violation Locke issued to plaintiffs was appealed to the Zoning Hearing Board and was reversed. Because Locke’s decisions with respect to the zoning code are appealable, his decisions are not final and unreviewable.”
As to Locke’s motion for reconsideration – which argued the Court erred because it failed to adequately consider the testimony of Locke and Kilkenny with respect to U.S. District Court for the Eastern District of Pennsylvania Judge Gerald McHugh’s prior ruling – DuBois said Locke followed Solicitor Kilkenny’s advice and issued the notice of violation to the plaintiffs.
“The evidence shows that Locke relied on Solicitor Kilkenny’s legal advice in good faith, and Locke’s reliance Solicitor Kilkenny’s advice was objectively reasonable under the circumstances. Thus, no official in Locke’s position could reasonably believe that he was acting unlawfully when he issued the Notice of violation to plaintiffs in reliance on Kilkenny’s advice,” DuBois stated.
“Accordingly, upon reconsideration based on newly presented argument and citation of authority, the Court concludes that Locke is entitled to qualified immunity with respect to plaintiffs’ 1st Amendment retaliation claim against him in his individual capacity.”
This finding resulted in the claim being dismissed in its entirety.
“Plaintiffs’ 1st Amendment retaliation claim against Locke in his individual capacity was their last remaining claim in this case. Accordingly, the Court enters judgment in favor of all defendants – Borough of Jenkintown, Debora Pancoe, Richard Bunker, and George Locke – and against plaintiffs, David B. Downs and Margaret A. Downs,” DuBois concluded.
UPDATE
The plaintiffs filed notice of their appeal to the Third Circuit on Sept. 4.
“Plaintiffs David and Margaret Downs hereby appeal to the United States Court of Appeals for the Third Circuit from the order, dated Aug. 7, 2020, granting the motion for summary judgment of defendant, George Locke (and denying plaintiffs’ motion for reconsideration) and the order, dated May 22, 2020, granting the motion for summary judgment of defendants, Borough of Jenkintown, Debora Pancoe and Richard Bunker,” said the notice from the Downs’ counsel.
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