HARRISBURG – A stay has been granted in a federal lawsuit between the owner of a Chinese restaurant and the Borough of Middletown, over claims that the Borough sought to prevent the plaintiff from opening and conducting daily business operations.
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.
An amended complaint was then filed on May 1, which the Borough also opposed with a motion to dismiss on May 21.
UPDATE
Both parties filed a joint motion on Feb. 1 to stay the case management deadlines for discovery, the production of expert reports and other standard pre-trial and trial scheduling matters, originally scheduled by U.S. District Court for the Middle District of Pennsylvania Judge Christopher C. Conner.
“At the time of conference, counsel expected a ruling to be imminent on the pending motion to dismiss and agreed to postpone discovery until ascertaining whether both defendants, neither of them, or only one of them would continue in the case,” the stipulation read.
“The parties agree that the discovery that would be taken in the case would likely be significantly different (or even not necessary at all), depending on the Court’s ruling on the motion to dismiss and that substantial expense would be borne by one or both parties unnecessarily if discovery were taken of both parties if only one (or none) would remain as defendants.”
The parties added further rationale behind the stipulation.
“Since the time of the Court’s issuance of the scheduling order, there has not been a ruling on the motion, and the discovery deadline is set to expire on Feb. 3, 2021. Counsel therefore respectfully request a stay of case deadlines and a status conference with the Court to re-evaluate and re-schedule case management events in light of the status of the disposition of the motion to dismiss the amended complaint.”
Conner granted the stipulation the following day, Feb. 2.
“The motion to stay case deadlines is granted and case deadlines from the court’s order are stayed. A status conference with counsel is scheduled for Thursday, March 18, 2021,” Conner stated.
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