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KING v. TOWNSHIP OF EAST LAMPETER

August 13, 1998

JONATHAN G. KING, and SARAH S. KING, Plaintiffs
v.
THE TOWNSHIP OF EAST LAMPETER, JOHN W. SHERTZER, individually and in his official capacity, GLENN L. EBERLY, individually and in his official capacity, WIL SOLLENBERGER, individually and in his official capacity, J. JACOB BARE, individually and in his official capacity, MIKE LANDIS, individually and in his official capacity, RALPH M. HUTCHISON, individually and in his official capacity, ZONING HEARING BOARD, RALPH A. HENDERSHOTT, individually and in his official capacity, RUSSELL E. LATSCHAR, individually and in his official capacity, DALE SCHMITZ, individually and in his official capacity, R. LEE YOUNG, individually and in his official capacity, and TAMMY LANTZ, Defendants



The opinion of the court was delivered by: VAN ANTWERPEN

OPINION AND ORDER

 Van Antwerpen, J.

 August 13, 1998

 I. INTRODUCTION

 Jonathan and Sarah King have asserted several claims against the Defendants under both state and federal law. The circumstances under which these claims arise involve a long and often abrasive relationship between the Plaintiffs and the Township of East Lampeter (the "Township") and several of its officials. Defendant Lantz is the only individual Defendant who is not affiliated with the Township in some official capacity. She is represented by separate council and has filed her own motion for summary judgment. The remaining Defendants have also filed a motion for summary judgment, attacking the Plaintiffs' claims on their merits and asserting several affirmative defenses. The Plaintiffs have filed their own motion for summary judgment, and have opposed the motions filed by the Defendants. We note that jurisdiction in this matter is appropriate under 28 U.S.C. ยงยง 1331 and 1367.

 Apart from the summary judgment motions, we must also consider two other motions which have been submitted by the parties. First, we must address a joint motion to strike submitted by the Defendants. This motion seeks to strike the Plaintiffs' summary judgment motion and brief in opposition to the Defendants' motions, because they are allegedly untimely. Second, we must consider the Plaintiffs' motion for leave to amend their complaint by adding two additional defendants. This motion is opposed by all of the Defendants. We will address these preliminary matters before moving on to the issue of summary judgment. *fn1"

 II. BACKGROUND

 A. Relevant Facts

 Summaries of the relevant facts have been prepared by each of the parties. The Township and Township officials have submitted a Statement of Facts consisting of 127 numbered paragraphs. Defendant Lantz concurs with and briefly supplements the Statement of Facts submitted by these Defendants. The Plaintiffs have not responded to the numbered paragraphs individually, and have instead prepared their own narrative summary of the facts.

 On balance, the Defendants' summary is the most helpful. The Plaintiffs have failed to cite the relevant portions of the record which support their narrative. Nevertheless, we have reviewed the voluminous exhibits submitted by all of the parties. Having done so, we find that the following summary presents an accurate depiction of the individuals, events, and conduct relevant to this dispute.

 1. The Plaintiffs

 Nearly nine years before the first zoning ordinance was enacted by the Township, the Plaintiffs began operating a woodworking shop in Whitmer, East Lampeter Township. Plaintiffs' Exhibit N.

 Later, a Charter was obtained by the Plaintiffs on October 25, 1966, and the Whitmer Co. was incorporated to operate under the laws of Pennsylvania. By virtue of its corporate charter, the company was vested with broad and inclusive powers to manufacture and sell complete kitchens, billiard tables, specialty millwork, cabinets, and woodworking, along with all powers incident thereto. Plaintiffs' Exhibit B.

 Other than selling off some of the furniture which was already being stored on the property when a court enjoined the Plaintiffs from doing business, Mr. King testified that he retired from the furniture and woodworking business at the end of 1996. Deposition of Jonathan G. King, taken April 2, 1998 ("King Dep.") at 8-9, 14.

 Very little is said about Mrs. King in the record. It does not appear that she has an ownership interest in her husband's business, see Deposition of Tammy Lantz, taken May 4, 1998 ("Lantz Dep.") Exhibit 1, nor has her deposition been taken by any of the Defendants.

 2. The Township Defendants

 East Lampeter's Township Manager is Ralph M. Hutchison. Defendant Hutchison has served in this capacity since December 1, 1991. Defendants' Exhibit H.

 Several members of the Township's Board of Supervisors have also been named as Defendants. John W. Shertzer currently serves as Chairman of the Board of Supervisors, and Glenn L. Eberly currently serves as Vice-Chairman of the Board of Supervisors. Wil Sollenberger, J. Jacob Bare, and Mike Landis are the remaining current members of the Board of Supervisors. Defendants' Exhibit A.

 Little information is provided about Ralph A. Hendershott in the record. Defendant Hendershott currently chairs the Zoning Board of the Township. Id.

 Until August of 1997, Russell E. Latschar served as the Zoning Officer for the Township. Defendant Latschar currently serves as the Secretary of the Zoning Hearing Board. In his capacity as Zoning Officer, Defendant Latschar would from time to time photograph properties and conditions which he believed to be in violation of local zoning ordinances. Defendants' Exhibit G.

 Also named as a Defendant in the suit is Dale Schmitz, who is currently a member of the Zoning Hearing Board of the Township. Defendants' Exhibit A.

 Next in the line of Defendants is R. Lee Young, who is currently the Zoning Officer of the Zoning Hearing Board. Defendant Young was formerly the Secretary of the Township's Zoning Hearing Board. Id.

 All of the above Defendants are now, or have previously been affiliated with the Township in some official capacity. For the sake of convenience, this Court will refer to the Defendant Township, Defendant Zoning Hearing Board, and the individual Defendants named above as the "Township Defendants."

 3. Defendant Lantz

 Defendant Tammy Lantz lived across the street from the Plaintiffs at 427 Mount Sidney Road, Township of East Lampeter, from April 1990 until approximately August 1997. Plaintiffs' Exhibit P at 4-5.

 From the Spring of 1994 until June of 1995, Defendant Lantz took photographs of the Plaintiffs' property either from Ms. Lantz's property or from a public road running along the southern boundary of the Plaintiffs' property. Lantz's Exhibit 2 P6.

 Photographs taken by Defendant Lantz were admitted into evidence on September 26, 1996, during a hearing in the Lancaster County Court of Common Pleas where Defendant Lantz testified about the condition of the Plaintiffs' property. Id.

 None of the photographs taken by Defendant Lantz show people. Lantz's Exhibit 2 P7.

 Defendant Lantz was not compensated for taking any of the aforementioned photographs. At one time someone from the Township may have offered to reimburse her for the price of the film and the cost of developing the film, but any such offer was rejected by Defendant Lantz. Lantz's Exhibit 2 P9.

 When Defendant Lantz learned that the Township was bringing legal proceedings against the Plaintiffs for alleged zoning violations, she volunteered to testify against the Plaintiffs. Lantz's Exhibit 2 P10.

 At the time she volunteered to testify, Defendant Lantz believed that the Plaintiffs were in violation of zoning regulations because of a commercial sign which was displayed on the Plaintiffs' property. Id.

 4. The Property

 The property involved in this suit is located in East Lampeter Township, at 428 and 430 Mt. Sidney Road. King Dep. at 9-11.

 There are three structures on the property, including a house, an office building, and a woodworking shop (also referred to as the "mill building"). See Defendant Lantz's Exhibit 2(A). The address of the house is 428 Mt. Sidney Road, the address of the office is 430 Mt. Sidney Road, and the mill building straddles both tracts. King Dep. at 194.

 The office building has been used to store and display furniture. See King Dep. at 23-24

 At various times a sign reading "Whitmer Furniture Co., Inc." has been displayed in the office building, and a sign reading "Whole Sale Furniture, Distributor Manufacturer, Lowest Prices Around, 400 Bedroom Suites, 200 Dining Room Suites, 500 Living Room Suites" has been propped near the road, between the office building and home. See e.g., Defendant Lantz's Exhibit 2(B) at 9, 12, 13.

 5. Relationship Between the Plaintiffs and the Township

 In approximately 1970, the Township adopted its first zoning ordinance (the "Zoning Ordinance"), and the Plaintiffs' business operation became a nonconforming use in an R-2 (residential) zoning district. See Complaint at 6; King Dep. at 24.

 On September 3, 1971, the Plaintiffs claim to have been granted a special exception to expand the mill building, subject to certain conditions, including "that no outside storage would be permitted which would detract from the appearance of the neighborhood." See Complaint at 6; King Dep. at 36.

 Subsequently, the Plaintiff applied for a special exception regarding an addition to the mill building. This addition had been partially built prior to the request, and the Plaintiffs' request was denied by the Township's Zoning Hearing Board. On June 21, 1976, Judge Paul A. Mueller, Jr. of the Court of Common Pleas *fn2" affirmed the Zoning Hearing Board. Judge Mueller issued an order directing the Plaintiffs to remove construction which was begun prior to the ruling. King Dep. Exhibit 2.

 The Plaintiffs appealed the June 21, 1976 order, but the appeal was dismissed by the Commonwealth Court due to the failure of the Plaintiffs' attorney to file their briefs. King Dep. at 53.

 The Plaintiffs allege that the Township later filed a petition for contempt citation because of the Plaintiffs' failure to comply with the June 21, 1976 order.

 On October 12, 1977, an order was entered dismissing the contempt citation by agreement of the parties, conditioned upon the fulfillment of certain conditions by the Plaintiffs, namely "removal of that part of a buggy shed known as the penthouse, and to use that area for parking motor vehicles and the storage of materials." This order was signed by Mr. King, Judge Mueller, Deputy Prothonotary Dorothy Greenawalt and Defendant Hendershott, who was on the Zoning Hearing Board at the time. King Dep. Exhibit 3.

 In November of 1977, the Township allegedly filed another petition for contempt citation on the basis of alleged violations of the October 12, 1977 order.

 On January 3, 1978, Judge Mueller issued another order advising the Plaintiffs to comply with the order and agreement of October 12, 1977 by February 6, 1978, or face being found guilty of contempt. King Dep. Exhibit 4.

 On February 6, 1978, Judge Mueller found that the Plaintiffs had violated the October 12, 1977 order, and found the Plaintiffs guilty of civil contempt.

 
[The] Court wishes to make clear to Mr. King as well as Mrs. King at this time that it will not tolerate further attempts at partial compliance or last minute efforts by Mr. King just before May 1, 1978. Either the addition with the three openings for garage doors and the west end which is not completely constructed with cinder block has to be completely torn down or completely finished by May 1, 1978.
 
Jonathan G. King's contemptuous conduct displays a stubborn disregard for the authority of this Court which is both wilful [sic] and intentional. He appears to be asking the Court to hold him in contempt. Under the circumstances, Mr. King, the Court so finds.

 King Dep. Exhibit 5.

 The Plaintiffs allege that Judge Mueller, by supplemental order filed February 23, 1978, granted them six hours parking time, rather than two, for temporary loading and unloading. However, the Plaintiffs cite no evidence for this contention, and although an order was filed on that date, no such accommodation exists on the face of the order itself. Therefore, we will not accept this allegation. See King Dep. Exhibit 6.

 In August of 1979, a third petition for contempt citation was allegedly filed by the Township concerning violations of the October 12, 1977 and February 6, 1978 orders.

 On October 1, 1979, Judge Mueller found Mr. King guilty of civil contempt and ordered him imprisoned until he purged his contempt by complying with the order of the court. King Dep. Exhibit 7.

 Commencing on October 1, 1979, Mr. King was incarcerated for four days and four nights. He was released on October 5, 1979. See King Dep. at 60-62.

 The October 1, 1979 order amended a portion of the October 12, 1977 order to read: "the open area recently created by the removal of a building erected by Defendants situated at the southwest corner of Defendant's premises may be used for the storage of materials and the parking of currently licensed motor vehicles." King Dep. Exhibit 7.

 The Plaintiffs allege that proceedings were instituted against them by the Township in 1988 and 1989. However, the Plaintiffs fail to provide specific evidence in support of this contention.

 On or about February 6, 1991, a fourth petition for contempt citation was filed by the Township, alleging violations of court orders dated October 12, 1977, February 7, 1978, and October 1, 1979.

 On April 9, 1991, Senior Judge Wilson Bucher of the Court of Common Pleas found the Plaintiffs in contempt of court and ordered them to remove trash, debris, and unlicensed vehicles from their property. The Plaintiffs were also fined $ 2,500 and ordered to pay the Township's attorney's fees and costs. The order provided that this penalty would be nullified if the Plaintiffs complied with the remainder of the order prior to May 15, 1991. King Dep. Exhibit 10.

 The Plaintiffs appealed Judge Bucher's order, and on August 7, 1992, the Commonwealth Court affirmed the order. King Dep. Exhibit 11.

 The Plaintiffs allege that on June 9, 1991, after the April 19, 1991 order had been issued, the Township, under the direction of Ivan Miller, a member of the Board of Supervisors, entered the Plaintiffs' property and seized trailers, vehicles, and equipment. The Plaintiffs also allege that the Township has made no accounting for this property. However, the Plaintiffs fail to cite any portion of the record in support of this proposition.

 On June 6, 1995, Defendant Latschar issued an enforcement notice to the Plaintiffs, citing zoning violations which included the unauthorized change of a nonconforming use, the sale of merchandise not manufactured on the property, off street loading and unloading, and the display of oversized business signs. The notice stated that compliance must be completed on or before June 30, 1995 and described the penalties which would accompany failure to comply. King Dep. Exhibit 12.

 On or about June 9, 1995, the Township filed a motion with the Court of Common Pleas requesting injunctive relief. On June 14, 1995, the court scheduled a hearing for June 27, 1995. King Dep. Exhibit 13.

 On September 28, 1995, the Pennsylvania Human Rights Commission rendered a finding of no probable cause regarding a complaint filed by the Plaintiffs and their youngest son in September 1995. This complaint contained many allegations of discrimination, many of which are similar to those in this case. Defendants' Exhibits D and E.

 In the Fall of 1995, the Plaintiffs filed a Request for a Special Exception to a zoning ordinance. A hearing on the matter was scheduled for November 9, 1995. King Dep. Exhibit 18. The Plaintiffs chose not to attend the meeting, although their attorney did appear and requested a postponement. The hearing was postponed, but neither the Plaintiffs nor their attorney showed up for the rescheduled hearing. It appears that the plaintiffs took no additional steps to pursue the matter of the special exception. See King Dep. at 143-144.

 On September 26, 1996 and December 20, 1996, hearings regarding the enforcement notice were held before Judge Lawrence Stengel of the Court of Common Pleas. King Dep. Exhibits 14 and 15. A series of photographs were entered into evidence during the injunction proceeding.

 By a Decree Nisi, dated June 27, 1997, Judge Stengel permanently enjoined the Plaintiffs from continuing their business, and ordered that they remove certain accessory structures and facilities located on the southwest corner of the property, discontinue the display of merchandise, remove all outside storage, and pay certain fines and legal fees. On or about October 23, 1997, Judge Stengel issued a Final Decree incorporating the terms of the Decree Nisi. King Dep. Exhibit 17.

 The Plaintiffs appealed Judge Stengel's decree to the Commonwealth Court on April 2, 1998. See King Dep. at 141-142. This appeal remains pending as of the date of this Opinion and Order.

 6. The Plaintiffs' Religious Affiliation

 The Defendants have introduced evidence that Mr. King left the Old Order Amish Church in 1969, and has not been a member of the Old Order Amish Church since that time. Defendants' Exhibit F.

 Mr. King recalls that he became disassociated with the Church sometime around 1980. King Dep. at 153.

 Mr. King has also testified that he and his wife have "always considered ourselves members of the Amish faith, by religion, conviction, ethnicity and traditions." Affidavit of Jonathan G. King, dated June 10, 1998 ("King Affidavit") at 5.

 7. Alleged Personal Animus

 Mr. King testified that John Kershner did not like the Plaintiffs. This impression is based upon the fact that Mr. Kershner testified against the Plaintiffs in 1991. King Dep. at 177-179. We note that Mr. Kershner is not a defendant in this case.

 Mr. King has testified that Linda Ziegler also bore some sort of personal animus against the Plaintiffs. Again, this impression was based upon the fact that Ms. Ziegler testified against the Plaintiffs in 1991. King Dep. at 177-180. We note that Ms. Ziegler is not a defendant in this case.

 Mr. King has testified that Frances Linetti, who also testified against the Plaintiffs in 1991, bore some personal animus against the Plaintiffs. King Dep. at 180. We note that this individual is not a defendant in this case.

 Mr. King has testified that Russell Latschar held a grudge against him, allegedly due to the fact that Mr. Latschar and Mr. King were on opposites side of a debate which took place at some point in the 1970s regarding how the local fire company should be run. King Dep. at 181-182.

 Mr. King has testified that the Township Supervisors harbor some personal animus against the Plaintiffs. Mr. King bases this belief upon the fact that the Supervisors have, at various times, authorized legal proceedings against the Plaintiffs. King Dep. at 182.

 8. Alleged Disparate Treatment

 Mr. King has alleged that Robert Flory is a similarly situated person who was treated differently than the Plaintiffs. Mr. King testified that Mr. Flory's farm was in a rural area and was zoned commercial. King Dep. at 183-186.

 Defendant Hutchison, the current Township Manager, has stated that prior to the 1990s, Mr. Flory operated a tourist business known as the "Amish Homestead." Mr. Flory's property was zoned partially commercial and partially high density residential. Mr. Flory subdivided the property years ago and sold a portion of the commercially zoned property to Wal-Mart. See Defendants' Exhibit H at 5.

 Mr. King has also alleged that Robert Dye is a similarly situated person who was treated differently than the Plaintiffs. Mr. King testified that Mr. Dye's concrete business was zoned commercial even though it was in the middle of a housing development. King Dep. at 187-188.

 Defendant Hutchison has stated that Mr. Dye once owned a concrete pipe business which pre-existed the initial Zoning Ordinance, and was, therefore, a permissible nonconforming use. Defendant Hutchison also stated that the business has since closed, and that Mr. Dye's personal residence was at all times located elsewhere. Defendants' Exhibit H at 5.

 Mr. King has also testified that Ralph Hendershott is a similarly situated person who was treated differently than the Plaintiffs. Mr. King testified that Mr. Hendershott's printing shop is located in a residential area. King Dep. at 188-189.

 Defendant Hutchison has stated that Defendant Hendershott does have a printing business on his property, which is in a rural zone. This business also pre-existed the 1970 zoning ordinance and is, therefore, a permissible nonconforming use. Defendant Hutchison also testified that while this printing business expanded its nonconforming use after 1970, this was accomplished by following proper procedure, which included filing an application for a special exception and participating in scheduled hearings. Defendants' Exhibit H at 5-6.

 When asked to identify any Amish-owned business which has been the subject of discrimination by the Township, the Plaintiffs stated in their Answers to Interrogatories, "We have no personal knowledge of such." Defendants' Exhibit C, No. 14.

 9. Other Relevant Facts

 Mr. King acknowledges that he has no evidence, other than that related to the claims against Ms. Lantz, of any individual being involved in a conspiracy with the Township and its officials against the Plaintiffs. King Dep. at 167-170.

 Defendants Hutchison and Latschar have testified that the condition of the Plaintiffs' property posed a threat to the public health, safety and welfare of East Lampeter Township. See Defendants' Exhibits G and H.

 B. Procedural History

 On August 6, 1997, the Plaintiffs filed a complaint with this court which apparently was never served upon any of the Defendants. See Defendants' Exhibit I. On October 15, 1997, the Plaintiffs filed an Amended Complaint (the "Complaint") against all of the Defendants, alleging violations of state and federal laws.

 On December 3, the Township Defendants and Defendant Lantz each filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). On December 23, 1997, this Court entered an order extending the time for the Plaintiffs to respond to the motions. On January 15, 1998, the Plaintiffs filed briefs in opposition, and on January 22, 1998, this Court denied the Defendants' motions and directed that discovery be conducted on an expedited basis.

 On May 8, 1998, the Township Defendants filed their summary judgment motion. Defendant Lantz filed her summary judgment motion on May 27, 1998. The Plaintiffs filed their own motion for summary judgment on June 8, 1998. The Plaintiffs supplemented this motion with a brief opposing the Defendants' motions and supporting their own motion on June 11, 1998. The Defendants jointly filed a motion to strike on June 17, 1998, claiming that the Plaintiffs' response to the Township's motion was untimely. The Plaintiffs moved to strike the motion to strike on June 22, 1998. On June 29, 1998, Defendant Lantz filed her reply to the Plaintiffs' summary judgment motion. The Township Defendants filed their response on the same day. On July 2, 1998, the Township Defendants filed what was effectively (good heavens!) a motion to strike the motion to strike the motion to strike. *fn3" The Plaintiffs filed a supplemental brief opposing the Defendants' summary judgment motions and supporting their own motion on July 13, 1998.

  On June 30, 1998, the Plaintiffs filed a Motion for Leave to Amend Complaint to Join Additional Parties. The Township Defendants opposed this motion on July 9, 1998, and the Plaintiffs filed a reply brief on July 20, 1998. The Township Defendants filed a supplemental memorandum in opposition on July 22, 1998. Defendant Lantz sought leave to join the Township Defendants' motion on July 31, 1998.

  We are troubled by the multitude of responses and sur-replies which have been filed in this case. The Local Rules of Civil Procedure, which apply to all civil actions in this District, require that supplemental briefs and memoranda are to be filed only with the approval or at the request of the court. Local R. Civ. P. 7.1(c). The attorneys for both the Plaintiffs and the Defendants have ignored this rule on multiple occasions, and we counsel them to pay more careful attention to the Local Rules of Civil Procedure in the future.

  III. DISCUSSION

  Before we consider the arguments advanced by the Defendants in their motions for summary judgment, we must resolve issues raised by the Defendants' joint motion to strike. We will then address the Plaintiffs' motion for leave to amend the complaint to add new defendants.

  Once we have addressed these preliminary issues, we will outline the standard which will apply to the summary judgment motions. We will then consider each of the arguments raised by Defendant Lantz in her motion. Following our discussion of Defendant Lantz's motion, we will examine each of the potential grounds for summary judgment advanced by the Township Defendants. Finally, we will consider each of the issues raised by the Plaintiffs in their motion for summary judgment.

  A. Defendants' Motion to Strike

  The Township Defendants filed their motion for summary judgment on May 8, 1998. The Plaintiffs filed their own motion for summary judgment on June 8, 1998. The Plaintiffs supplemented this motion with a brief opposing the Defendants' motions and supporting their own motion on or about June 11, 1998. The Defendants now seek to strike the Plaintiffs' motion and brief because they were not timely filed.

  Local Rule of Civil Procedure 7.1 provides, in relevant part:

  
Every motion not certified as uncontested, or not governed by Local Civil Rule 26.1(g), shall be accompanied by a brief containing a concise statement of the legal contentions and authorities relied upon in support of the motion. Unless the parties have agreed upon a different schedule and such agreement is approved under Local Civil Rule 7.4 and is set forth in the motion, or unless the Court directs otherwise, any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief. . . .

  Local R. Civ. P. 7.1(c). In accordance with this rule and Fed. R. Civ. P. 6(a) (3 day mailing rule), the Plaintiffs' response to the Township Defendants' motion was due no later than May 26, 1998.

  By way of explanation, Plaintiffs' counsel writes:

  
Plaintiffs' Counsel's staff in computing the time in which to file a response to said motion, computed the time incorrectly and therefore, the deadline date ...

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