PHILADELPHIA – A former Jenkintown mayoral candidate and her spouse who lost their retaliation case against a number of borough officials have also lost the appeal of 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.
After previously dismissing the other defendants, DuBois later found that Locke was entitled to qualified immunity – due to his following of Solicitor Kilkenny’s advice in good faith – and dismissed the case entirely on Aug. 10, 2020.
The plaintiffs filed notice of their appeal to the Third Circuit on Sept. 4 of last year.
UPDATE
On June 16, Third Circuit judges Theodore A. McKee, Kent A. Jordan and Julio M. Fuentes ruled to uphold the District Court’s decision. McKee authored the Court’s ruling.
Though the Downses attempted to argue on appeal that the Borough’s defense of qualified immunity was invalid, the Third Circuit panel disagreed.
“The Downses argue that this qualified immunity defense should fail, as the ‘unpublished and unknown ruling articulated by [the Magisterial District] Judge’ constitutes disputed issues of fact. It is uncontested that the Magisterial District Judge made an oral ruling expanding the definition of an impact business, in the presence of the Borough Solicitor,” McKee said.
“Locke consulted the Borough Solicitor when deciding whether to issue a Notice of Violation to the Downses. The Solicitor advised Locke that he had a ‘reasonable basis’ based on the Judge’s ruling. Nothing in the record refutes that testimony and we therefore agree that there was no genuine issue of material fact as to the Judge’s ruling.”
Per the Third Circuit, the District Court also correctly determined that Borough councilmembers Pancoe and Bunker did not actively participate in, or direct, any retaliation in violation of 42 U.S.C. Section 1983.
“While the councilmembers were potentially aware of the notices that the claim of retaliation is based on, the issuing and subsequent reissuing of the Notice of Violation were clearly within Locke’s sole discretion. He testified without contradiction to his independent authority to issue the notices,” McKee stated.
“Seeking to establish municipal liability, the Downses further contend that Pancoe, Bunker, and Locke were policymakers acting on behalf of the Borough to enforce an illegal practice or custom. However, as discussed earlier, the record would not support a conclusion that Pancoe or Bunker violated any constitutional right. Thus, although they may be policymakers for purposes of Section 1983, municipal liability cannot be predicated on their actions. Moreover, we explained in Brennan v. Norton why someone in Locke’s position cannot be a policymaker for purposes of municipal liability. Thus, the District Court correctly determined that the Borough was immune from liability.”
McKee explained that although the Downses contended that the Borough had a custom of selectively enforcing its zoning code, the record does not support that assertion.
“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ For the foregoing reasons, we will affirm the District Court’s order granting summary judgment to all defendants,” McKee said.
The plaintiffs were represented by William J. Fox of the Law Office of William J. Fox, in Philadelphia.
The defendants were represented by Suzanne McDonough of Holsten & Associates, in Media.
U.S. Court of Appeals for the Third Circuit case 20-2805
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