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BARNES FOUND. v. TOWNSHIP OF LOWER MERION

September 26, 1997

THE BARNES FOUNDATION, Plaintiff,
v.
THE TOWNSHIP OF LOWER MERION, THE LOWER MERION BOARD OF COMMISSIONERS, GLORIA P. WOLEK, FRANK LUTZ, KENNETH E. DAVIS, PHYLLIS L. ZEMBLE, ORA R. PIERCE, JAMES J. PRENDERGAST, ALAN C. KESSLER, BRIAN D. ROSENTHAL, JOSEPH M. MANKO, HOWARD L. WEST, W. BRUCE McCONNEL III, JAMES S. ETTELSON, DAVID A. SONENSHEIN, REGENE H. SILVER, Defendants.



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 September 26, 1997

 TABLE OF CONTENTS

 INTRODUCTION

 BACKGROUND

 I. STANDARD FOR SUMMARY JUDGMENT

 II. 42 U.S.C. § 1983

 A. EQUAL PROTECTION

 
1. Legal Standard
 
2. The Barnes's Evidence
 
a. The Defendants' Reaction to the Barnes's November 9, 1995 Letter
 
b. Picketing at the Reopening Gala Events
 
c. The Comments of Residential Neighbor Robert Marmon at the Commissioners' Public Meeting Held on November 15, 1995
 
d. The Township's Relations with Residents in Ardmore
 
e. Comments About Discrimination in Ardmore
 
i. Commissioner Manko's Alleged Statement
 
ii. Ann Hutchinson's Memo
 
f. Conclusion

 B. DUE PROCESS

 C. FIRST AMENDMENT

 III. 42 U.S.C. § 1985(3)

 IV. 42 U.S.C. § 1981

 CONCLUSION

 APPENDIX

 
a. The Barnes's On-site Parking Lot
 
i. Off-Site Parking Plan
 
ii. Zoning Hearing Board Approval of the Barnes's On-Site Parking Lot
 
b. The Final Stages of Renovations in Autumn 1995
 
i. Building Inspections
 
ii. The Stop Work Order
 
iii. Final Inspections and Panic Hardware
 
iv. The Barnes's Temporary Tent
 
c. November 1995: The Reopening Gala Events, the November 15 Commissioners' Meeting, and Temporary Parking Permission
 
i. Township Manager Latshaw's November 9, 1995 Letter
 
ii. The November 9, 1995 Meeting
 
iii. Traffic Plans for the Reopening Gala Events
 
iv. The November 15, 1995 Commissioners' Meeting and the Resolution
 
v. The November 30, 1995 Meeting
 
vi. Temporary Parking Permission
 
d. The December 1995 and August 1996 Zoning Citations

 Plaintiff the Barnes Foundation (the "Barnes") brought this action against Defendants the Township of Lower Merion (the "Township"), the Lower Merion Board of Commissioners, Gloria P. Wolek, Frank Lutz, Kenneth E. Davis, Phyllis L. Zemble, Ora R. Pierce, James J. Prendergast, Alan C. Kessler, Brian D. Rosenthal, Joseph M. Manko, Howard L. West, W. Bruce McConnel III, James S. Ettelson, and David A. Sonenshein (the "Commissioners") under 42 U.S.C. §§ 1983 and 1985(3) for violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. The crux of the Barnes's claim is that the Township and its Board of Commissioners enforced zoning, parking, police, and fire code regulations in a discriminatory manner against the Barnes because of their racial bias toward three of its Trustees who are African American. The Township and the Commissioners (collectively the "Defendants") now move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure because they assert that the Barnes does not have any evidence to present at trial that would show that they discriminated against it. *fn1"

 My inquiry in deciding the Defendants' motions for summary judgment is a narrow one. I am not being called upon to decide the truth of either side's story or to determine what the facts are, for those are the functions of the jury. Rather, under the Federal Rules of Civil Procedure, my task in deciding these motions for summary judgment is to focus solely on the evidence supporting the Barnes's case and to determine whether it is sufficient to require a trial. This task requires me to resolve two questions, the first being whether the evidence supporting the Barnes's case would be admissible at trial under the Federal Rules of Evidence, and the second being whether, assuming that all of the Barnes's admissible evidence were true, that evidence would be legally sufficient to allow a jury to conclude that the Defendants had deprived the Barnes of its rights under either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the evidence supporting the Barnes's case were insufficient to allow a jury to make that conclusion, a trial would be unnecessary and the Defendants would be entitled to summary judgment.

 After a careful examination of the evidence supporting the Barnes's case, I have concluded that the Barnes has not met its burden here. As stated before, the Barnes is claiming violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. *fn2" The law is clear as to what the Barnes would have to prove at trial. Under well-settled Supreme Court doctrine, in order to show that the Township and the Commissioners violated the Equal Protection Clause when they applied their zoning, parking, police, and fire code regulations to the Barnes--regulations that on their face apply to all citizens regardless of race--the Barnes would have to show that the Township and Commissioners in fact applied these facially neutral regulations on the basis of race. See Washington v. Davis, 426 U.S. 229, 239-42, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977); Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). In order to show that the Defendants applied these regulations on the basis of race, the Barnes would have to show, first, that the Defendants treated it differently than similarly situated institutions, and second, that they did so with the deliberate purpose or intent to discriminate against the Barnes because of the race of its Trustees. See Washington v. Davis, 426 U.S. at 239-42; Arlington Heights, 429 U.S. at 265; Personnel Adm'r v. Feeney, 442 U.S. 256, 272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979). Furthermore, in order to show that the Defendants acted with the deliberate purpose to discriminate on the basis of race, the Barnes would have to show that the Defendants "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of, '" the adverse effects it would have on institutions governed by African Americans, including the Barnes. See Personnel Adm'r v. Feeney, 442 U.S. at 279. Thus, in order to meet its burden under the Federal Rules of Civil Procedure to avoid summary judgment, the Barnes would have to show that it could produce admissible evidence at trial sufficient to allow the jury to conclude that the Defendants purposefully singled it out for differential treatment because three of its Trustees are African American.

 The Barnes's burden under the Due Process Clause is similar to its burden under the Equal Protection Clause. In order to show that the Defendants violated the Due Process Clause when they applied their zoning, parking, police, and fire code regulations to the Barnes, the Barnes would have to show that the Defendants did not act in furtherance of any legitimate governmental purpose, but rather that they deliberately abused their power to discriminate against the Barnes because of the race of its Trustees. See Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667, 683 (3d Cir. 1991). Thus, as with the Equal Protection Clause, in order to avoid summary judgment, the Barnes would have to show that it could produce admissible evidence at trial sufficient to allow a jury to conclude that the Defendants undertook the actions they did toward the Barnes with a racially discriminatory purpose.

 The admissible evidence supporting the Barnes's case fails to show that any of the Defendants' conduct was motivated by a racially discriminatory purpose. The vast majority of the Barnes's evidence has nothing to do with race, but rather only details various aspects of an ordinary zoning dispute, such as the fact that the Defendants required the Barnes to obtain approval for a proposed on-site parking lot from the Township's Zoning Hearing Board or that the Barnes was cited for violating the Zoning Ordinance by changing its primary use from an educational institution to a museum.

 The Barnes also offers a hearsay statement that one of the Defendant Commissioners commented to a newspaper reporter that at some point during his eighteen years of service on the Township's Board of Commissioners, other board members had said "Let's stick it to Ardmore because there are black people there." Even if the Barnes could overcome the hearsay objections, which it cannot, the Barnes has not demonstrated any nexus whatsoever between this statement, taking it to be true as I must for this motion, and its allegations that the Defendants treated the Barnes differently because of the race of its Trustees. Nor has the Barnes demonstrated any nexus whatsoever between any of the other evidence that it presents, also taking it to be true as I must on a motion for summary judgment, and its allegations that the Defendants treated the Barnes differently because of race.

 Thus, the Barnes has not shown that it would be able to produce admissible evidence at trial sufficient to allow a jury to conclude that the Defendants undertook any of the actions they did with a racially discriminatory purpose, which is a necessary element of the Barnes's case under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Accordingly, as explained in greater detail below, a trial is unnecessary, and I will grant the Township's and the Commissioners' motions for summary judgment.

 BACKGROUND

 The Barnes Foundation is a corporation organized under the laws of Pennsylvania, with real estate located in the Township of Lower Merion, Pennsylvania, at 300 North Latches Lane. It was created in 1922 by Dr. Albert C. Barnes, who conveyed to the Foundation by an Indenture and Agreement both the real estate that it currently occupies and the extensive art collection that Dr. Barnes had acquired. Dr. Barnes provided in the Indenture that the purpose of the Foundation was "to promote the advancement of education and the appreciation of the fine arts."

 The Barnes Foundation is governed by a Board of Trustees. During the time period relevant to this action, the Barnes was governed by four Trustees--Richard H. Glanton, Esquire, who is the elected President of the Board of Trustees, Niara Sudarkasa, Shirley A. Jackson, and Charles Frank. With the exception of Frank, all of the Barnes's Trustees are African American.

 The Township of Lower Merion is a municipal corporation and a First Class Township, located adjacent to the city of Philadelphia. The Township is governed by an elected Board of Commissioners. During the time period relevant to this action, the Township was governed by fourteen Commissioners, who are all Defendants in this action.

 The current dispute stems from the operation and use of the Barnes's art gallery. By entry of a consent decree in 1960 between the Commonwealth of Pennsylvania and the Barnes, the Barnes's art gallery was opened up for admission to the public two days per week, except during the months of July and August of each year. The art gallery was subsequently opened up to the public for an additional half-day per week following the death of Dr. Barnes's wife. In 1993, the Foundation was closed to the public for the purpose of renovating the facility and the art gallery. The Foundation was reopened to the public approximately nineteen months later, in November 1995. It is the events surrounding this reopening that provide the source of controversy for this lawsuit.

 On June 3, 1996, I denied the motions to dismiss filed by the Township and the Commissioners. By the same order, I granted the collective motion to dismiss filed by the seventeen Defendant neighbors on grounds of First Amendment immunity under the Noerr-Pennington doctrine. I also refused to abstain from adjudicating this matter under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).

 On June 18, 1996, the Township and the Commissioners filed a joint Counterclaim for the tort of abuse of process. On December 30, 1996, I denied the Barnes's motion to dismiss the Defendants' counterclaim. On February 7, 1997, I denied the Barnes's motions to amend its first amended complaint, with the exception of adding Commissioners Rocco Burdo and Louis Gould as Defendants to the extent that they would be subject in their official capacities to any prospective equitable relief that might be subsequently granted in this action. By a separate order on February 7, 1997, I granted the parties' joint request for an extension of the discovery deadline until April 7, 1997, at which time discovery in this action was completed.

 On April 23, 1997, the Township and the Commissioners both filed motions for summary judgment. *fn3" They also submitted a joint Statement of Undisputed Facts and a joint Appendix containing six large boxes of exhibits. *fn4" On May 7, 1997, I denied the Barnes's motion to defer ruling on the Defendants' motions for summary judgment pending further discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. *fn5" On May 13, 1997, the Barnes filed a memorandum of law in opposition to the Defendants' motions for summary judgment, and on May 15, 1997, the Barnes submitted a Statement of Material Facts Supported by Substantial Evidence. The Barnes also filed a large box of exhibits. *fn6"

 Finally, on June 6, 1997, the Township and the Commissioners each filed a separate reply to the Barnes's response, and the Township also submitted an additional large box worth of exhibits. *fn7" On July 3, 1997, I denied the Barnes's motion for leave to file a surreply. The record is complete, and I am now ready to turn to a discussion of the materials the parties submitted in support of and in opposition to the Defendants' motions for summary judgment.

 DISCUSSION

 I. STANDARD FOR SUMMARY JUDGMENT

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. When the moving party does not bear the burden of persuasion at trial, as is the case here, its burden "may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. See Celotex, 477 U.S. at 324; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

 Although the evidence presented on a motion for summary judgment does not have to be in admissible form, see Celotex, 477 U.S. at 324, Rule 56(e) requires the presentation of evidence "as would be admissible" at trial, see Fed. R. Civ. P. 56(e), and thus the evidence must be "reducible to admissible evidence" at trial, see Celotex, 477 U.S. at 327. See, e.g., J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990); Williams v. Borough of West Chester, 891 F.2d 458, 466 n.12 (3d Cir. 1989) (Becker, J., opinion announcing the judgment of the court). Affidavits presented in support of and in opposition to a motion for summary judgment must "be made on personal knowledge," must "set forth such facts as would be admissible in evidence," and must "show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e); Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 282 (3d Cir. 1988); Maldonado v. Ramirez, 757 F.2d 48, 50 (3d Cir. 1985). See generally 10A Charles A. Wright et al., Federal Practice and Procedure § 2738, at 486-95 (2d ed. 1983 & Supp. 1997).

 To determine whether summary judgment is appropriate, I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See id. The standard thus "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)." Id. at 250. If the evidence favoring the nonmoving party is "merely colorable," "not significantly probative," or amounts to only a "scintilla," summary judgment may be granted. See id. at 249-50, 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." (footnote omitted)). Of course, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Moreover, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; see also Big Apple BMW, Inc., 974 F.2d at 1363. Thus, my inquiry at the summary judgment stage is only the "threshold inquiry of determining whether there is the need for a trial," that is, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 250-52.

 Although courts have sometimes expressed reluctance to grant motions for summary judgment in cases revolving around issues of intent, see, e.g., National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 205 (2d Cir. 1989), they have nonetheless recognized their duty to grant summary judgment when the opposing party fails to proffer evidence sufficient to survive a motion for judgment as a matter of law at trial. See, e.g., Medina-Munoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.").

 As the Supreme Court explained in Celotex, the "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). Furthermore, "rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis." Id.

 II. 42 U.S.C. § 1983

 Section 1983 of Title 42 of the United States Code provides:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

 42 U.S.C.A. § 1983 (West Supp. 1997). In order to bring a successful § 1983 claim, a plaintiff must demonstrate (1) that the challenged conduct was committed by a person acting under color of state law, and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or federal law. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Carter v. City of Phila., 989 F.2d 117, 119 (3d Cir. 1993).

 The Township and Commissioners do not contest that the challenged actions were taken under color of state law. They do contest the Barnes's claim that the challenged actions deprived the Barnes of its rights under the Equal Protection and Due Process Clauses of the Fourteenth ...


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