United States District Court, Eastern District of Pennsylvania
June 12, 2002
PATRICK J. RYAN, PLAINTIFF,
LOWER MERION TOWNSHIP, ET. AL.,DEFENDANTS.
The opinion of the court was delivered by: Joyner, Judge:
MEMORANDUM AND ORDER
Presently before the Court is the Motion for Summary Judgment of
Defendants Lower Merion Township (the "Township"), Robert E. Duncan
("Duncan"), Robert S. Ryan ("Defendant Ryan"), and Michael J.
("Morris")*fn1(collectively referred to as "Defendants").*fn2 This case
arises from a zoning dispute between Plaintiff Patrick Ryan ("Plaintiff"
or "Plaintiff Ryan") and the Defendants. For the reasons that follow, the
Motion for Summary Judgment will be granted in part and denied in part.
The dispute in this case centers on whether the Defendants properly
revoked, and properly affirmed the revocation of, a Use Permit issued to
Plaintiff. On February 9, 1999, Plaintiff entered into an Agreement of
Sale to purchase a property located at 14 North Merion Avenue, Lower
Merion Township, Pennsylvania (the "property").*fn3 This property was
owned by Paul Flanigan who operated a restaurant/tavern called the Prime
Minister on the premises. The mortgage holder had foreclosed on the
property and a sheriff's sale was scheduled for July 21, 1999. Plaintiff
determined that to make his business feasible at this location, he would
need to renovate the second floor mezzanine to convert it to a full
second floor. Thus, in the Agreement of Sale Plaintiff included a
contingency clause making the sale contingent on Plaintiff obtaining
approval to complete the second floor renovations.
Plaintiff hired an architect, James T. MacAllister, Jr. ("MacAllister")
to draw plans for the renovations. Plaintiff's renovations included
expanding the storage space in the basement, improving the restrooms,
repositioning and redesigning the bar on the first floor, expanding the
second floor to fill in the open area of the mezzanine, and moving the
kitchen from the first floor to the second floor. The renovated second
floor would be able to seat twelve people at the bar, twenty-four people
at tables, and eighteen people at a counter against the wall.
Plaintiff then met with Duncan, who is the Director of Building
Regulations and Zoning Officer for Lower Merion Township, to review the
architectural plan, including the expansion of the second floor. Duncan
told Plaintiff that the contemplated addition may raise an issue with a
Township ordinance requiring a certain number of parking spaces.*fn4
However, Duncan further informed Plaintiff that because
the proposed use
of the space was a restaurant, Plaintiff would qualify to use off-street
public parking spaces pursuant to Township Ordinance.*fn5 Plaintiff
completed a "Change of Use or Occupancy Application" on which he
indicated that the proposed use of the building was a restaurant.
On March 4, 1999, Duncan issued a Use Permit and assigned use of
municipal parking spaces "to meet the parking requirements of the zoning
code." Upon receipt of the use permit, Plaintiff commissioned final
architectural plans and made applications to both the Pennsylvania
Department of Labor and Industry and the Pennsylvania Liquor Control
On March 23, 1999, notice of the pending liquor license transfer to the
Plaintiff's corporation, P.J. Ryan's, Inc. was posted at the property.
Plaintiff alleges that after this posting, several local newspapers wrote
articles reporting that "Smokey Joe's was moving to the Prime
Minister."*fn6 Plaintiff further alleges that after these articles were
published, public opposition groups began to state their disapproval with
Smokey Joe's moving to the property to Township officials. These groups
included the Bryn Mawr Civic Association and the Morton Road Residence
Association. Duncan became aware that the Plaintiff was one of the
previous owners of Smokey Joe's from Hank Wilson of the Bryn Mawr Civic
Association.*fn7 Hank Wilson also contacted Charles Bloom, a Ward
Commissioner, to tell him that Smokey Joe's was buying the Prime
Minister. Mr. Bloom testified that he spoke with someone from the
Township's Building and Codes Department who confirmed that this was
On April 7, 1999, Plaintiff and his architect met with the Township's
Fire Marshall and Duncan to discuss whether the building would need
sprinklers. Prior to Plaintiff's arrival at the meeting, Duncan or the
Fire Marshall asked the architect whether there would be any karaoke at
the facility. The architect responded that there could be karaoke on the
first floor in an area where the tables could be moved aside. Duncan or
the Fire Marshall then asked whether there would be dancing. The
architect told them there could be dancing one night a week in the same
area of the first floor. After Plaintiff arrived at the meeting, there
was no more discussion about karaoke or dancing. At the conclusion of the
meeting, Duncan and the Fire Marshall confirmed that no zoning or
building code issues remained unresolved.
However, by letter dated April 8, 1999 ("the Revocation Letter"),
Duncan notified Plaintiff that the approval of the Use Permit was
revoked. The Revocation Letter stated that during the April 7, 1999
it was discovered that the second floor area will
primarily be used as a taproom and the tables and
chairs that will exist on both floors will be moved
after dinner to create an open assembly area used as a
Based on your description of the proposed use, I have determined that
the primary use of this building is a Taproom and/or Night Club. This use
does not authorize you to utilize the public parking lots to comply with
Township's zoning code. This provision is limited to a Restaurant Use.
Also a portion of this space will be used for Public Assembly which
requires one parking space for every 50 square feet of floor are devoted
to Public Assembly.
Further, in a memorandum dated April 23, 1999, Duncan memorialized a
conversation he had with a Ward Commissioner, Jim Ettelson, concerning
the Plaintiff's purchase of the Property. The memorandum indicates that
"[Ettelson] was interested in helping them [Plaintiff] with the approval
process until [Duncan] informed him that there was significant opposition
from the residents in Bryn Mawr because of problems caused by Villanova
students attending the existing Smokey Joe's in Radnor Township." On May
7, 1999, Plaintiff filed a Notice of Appeal with the Township alleging
that Duncan's revocation of the Use Permit was arbitrary, capricious, and
contrary to the Township Ordinances, unsupported by competent evidence,
constituted an error of law and that it violated Plaintiff's vested
rights in the Use Permit. On July 1, 1999, Plaintiff's appeal was heard
before the Zoning Hearing Board ("ZHB") with Defendants Ryan and Morris
sitting.*fn8 Plaintiff presented evidence regarding his proposed use of
the Property and particularly his proposed use of the second floor
renovation. Plaintiff argued that the only relevant inquiry for Township
Ordinance purposes is the proposed use of the second floor renovation.
Various opponents presented evidence, most of it having to do with the
operation of Plaintiff's other establishment, Smokey Joe's in Wayne. By
Memorandum and Order dated August 9, 1999, Defendant Ryan and Morris as
members of the ZHB, denied Plaintiff's appeal finding that the use of the
entire facility was a taproom and, thus, Plaintiff did not qualify to use
municipal parking spaces. Plaintiff did not appeal the ZHB's decision to
the Court of Common Pleas.
On October 8, 1999, Duncan wrote a Memorandum to the Township Manager
in which he said the following:
Staff has been informed that the sale of the Prime Minister Building
has been completed. The property has been sold to an individual that
proposes to open a Japanese Restaurant. The property was the subject of a
zoning appeal by the same individuals that operated a bar & restaurant to
the college age crowd.
Since the 30 day appeal period for the zoning decision has expired and
the property has transferred, it appears that the threat of another
college bar in Bryn Mawr has been avoided.
After Plaintiff's Use Permit was denied, The Grog, which Plaintiff
alleges was similarly situated, was issued a use permit entitling it to
use municipal spaces to meet the parking requirements based a second
floor addition. In the Change of Use Certificate issued to The Grog, the
Zoning Officer stated "the parking spaces designated for this expanded
use of the 2nd floor can only be granted if the principal use of the
space is a restaurant. If the use
of the 2nd floor after 5:00 p.m. is to
expand the taproom use, this approval is voided and Zoning Hearing Board
approval will be required."
On April 12, 2001, Plaintiff filed the Complaint in this action
alleging a violation of 42 U.S.C. § 1983, civil conspiracy, and
intentional interference with an actual contractual and business
relationship. After the conclusion of discovery, Defendants filed
a Motion for Summary Judgment which we now consider.
A. Standard of Review
In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a
court must determine "whether there is a genuine issue of material fact
and, if not, whether the moving party is entitled to judgment as a matter
of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.
1999) (internal citation omitted). When making this determination, courts
should view the facts, and reasonable inferences drawn therefrom, in the
light most favorable to the non-moving party. See, e.g., Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). For its part, the non-moving party must,
through affidavits, admissions, depositions, or other evidence,
demonstrate that a genuine issue exists for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In
making its showing, the non-moving party "must do more than simply show
that there is some metaphysical doubt as to the material facts," id. at
586, and must produce more than a "mere scintilla of evidence in its
favor" to withstand summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the
non-moving party fails to create "sufficient disagreement to require
submission [of the evidence] to a jury," the moving party is entitled to
judgment as a matter of law. Liberty Lobby, 477 U.S. at 251-52.
B. Judicial Immunity for Defendants Ryan and Morris
Defendants Ryan and Morris have been sued in their individual and
official capacities for violations of 42 U.S.C. § 1983, conspiracy,
and intentional interference with contractual and business relations.
Defendants Ryan and Morris argue they are immune from suit under the
doctrine of judicial immunity.
"It is a well-settled principle of law that judges are generally
`immune from a suit for money damages.'" Figueroa v. Blackburn,
208 F.3d 435, 440 (3d Cir. 2000) (quoting Mireles v. Waco, 502 U.S. 9,
9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (per curiam)); see also Zapach v.
Dismuke, 134 F. Supp.2d 682, 696 (E.D.Pa. 2001) (same)(citing Stump v.
Sparkman, 435 U.S. 429 [435 U.S. 349], 433 n. 8, 113 S.Ct. 2167,
55 L.Ed.2d 331 (1978)); Feingold v. Hill, 521 A.2d 33, 36 (Pa.Super.
1987) ("[T]he law in Pennsylvania is well established that judges are
absolutely immune from liability for damages when performing judicial
acts, even if their actions are in error or performed with malice,
provided there is not a clear absence of all jurisdiction over the
subject matter and person.") A suit can only be maintained against a
judge for "non-judicial acts" and for actions "taken in the complete
absence of all jurisdiction." Figueroa, 208 F.3d at 440.
Whether an act is judicial depends on "the `nature' and `function' of
the act, not the `act' itself." Mireles v. Waco, 502 U.S. 9, 13, 112
S.Ct. 286, 116 L.Ed.2d 9 (1991) (quoting Stump, 435 U.S. at 362, 98
Courts look to two factors in making this determination:
the nature of the act, i.e. whether the act
is a measure normally performed by a judge,
and the expectations of the parties, i.e.
whether the parties dealt with the judge in
his judicial capacity." See id. at 12,
112 S.Ct. 286.
Zapach, 134 F. Supp.2d at 696.
Our Court of Appeals has held that zoning boards who are ruling on a
zoning permit for a particular piece of property are performing a
"quasi-judicial function." See Omnipoint Corp. v. Zoning Hearing Board of
Pine Grove, 181 F.3d 403, 409 (3d Cir. 1999) (citing Urbano v. Meneses,
431 A.2d 308, 311 (Pa.Super. 1981)). Judicial immunity is extended to
those performing "quasi-judicial" functions. See, e.g., Jodeco, Inc. v.
Hann, 674 F. Supp. 488, 497 (D.N.J. 1987) (recognizing that "absolute
[judicial] immunity has been extended to protect those nonjudicial
officials whose activities are integrally related to the judicial process
and involve the exercise of discretion comparable to that of a
judge")(citing numerous cases supporting this proposition).
In this case, Defendants Ryan and Morris were sitting as members of the
Zoning Hearing Board ("ZHB") to hear Plaintiff's appeal from a zoning
decision made by Duncan, a Zoning Officer.*fn9 Plaintiff was represented
by counsel at the ZHB hearing. Plaintiff put on a case-in-chief and had
the opportunity to cross-examine his opponents. The ZHB took the sworn
testimony of witnesses and ruled on objections from counsel. A review of
the transcript from the hearing demonstrates it was judicial in nature.
Further, the ZHB issued a written opinion outlining its decision and the
decision was appealable to the Court of Common Pleas for Montgomery
County, Pennsylvania. Because Defendants Ryan and Morris were performing
a quasi-judicial role as members of the ZHB hearing an appeal of a zoning
decision, they will be granted judicial immunity and all of Plaintiff's
claims against them in their individual capacities are dismissed with
However, Defendants Ryan and Morris were also sued in their official
capacities. "In a suit against a government official in his official
capacity, `the real party in interest . . . is the governmental entity
and not the named official. . . .'" Smith v. School District of
Philadelphia, 112 F. Supp.2d 417, 424-25 (E.D.Pa. 2000) (quoting Hafer
v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). In this
case, Defendants Ryan and Morris were representatives of the ZHB, and the
ZHB is not entitled to immunity. See Schiazza v. Zoning Hearing Board of
Fairview Township, 168 F. Supp.2d 361, 374 (M.D.Pa. 2001) (zoning board
is "entitled to no immunity whatsoever"). Therefore, Defendants Ryan and
Morris do not enjoy immunity for the claims against them in their
official capacities as the ZHB is the real party in interest for those
C. Civil Conspiracy Claim
"To prove a civil conspiracy under Pennsylvania law, a plaintiff must
show the following elements: (1) a combination of two or more persons
acting with a common purpose to do an unlawful act or to do a lawful act
by unlawful means or for an unlawful purpose; (2) an overt act done in
pursuance of the common purpose; and (3) actual legal damage." Bristol
Township v. Independence Blue Cross, No. CIV.A. 01-4323, 2001 WL
1231708, *5 (E.D.Pa.
Oct. 11, 2001) (citing SNA, Inc. v. Array,
51 F. Supp.2d 554, 561 (E.D.Pa. 1999)). "Proof of malice or an intent to
injure is essential to the proof of a conspiracy." Id. (citing Strickland
v. University of Scranton, 700 A.2d 979, 987-88 (Pa.Super. 1997)); see
also Progress Federal Savings Bank v. Lenders Association, Inc., No.
CIV.A. 94-7425, 1995 WL 464320, *5 (E.D.Pa. July 31, 1995). "An action
will lie only where the sole purpose of the conspiracy is to cause harm
to the party who claims to be injured." Id. (citing Thompson Coal Co. v.
Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979)). "Thus where the facts show
that a person acted to advance his own business interests, those facts
constitute justification and negate any alleged intent to injure." Id.
In this case, Plaintiff alleged that:
It is believed and therefore averred that from April,
1999 through August, 1999, the representatives of the
Township, including the Zoning Officer, who is also
Secretary for the Zoning Board, and the Zoning Board
met and conspired to deprive the Plaintiff of the
equal protection of the laws, thereby inflicting
injury on the Plaintiff.
Plaintiff's Complaint at ¶ 59.
Plaintiff argues in response to the motion for summary judgment
that the following constitutes evidence to support the conspiracy
The facts on record show that Mr. Bloom, the Ward
Commissioner, and Hank Wilson of the Bryn Mawr Civic
Association had discussions with the Zoning Officer
before and after the revocation of the Use Permit
regarding Plaintiff; Mr. Bloom, as a Ward
Commissioner, elects the Members of the ZHB; contrary
to the Township's policy, Mr. Bloom testified at the
Plaintiff's appeal before the ZHB; the Township took a
position against the Plaintiff at the appeal*fn10;
and the Defendants' actions were motivated by the
Township's discontent for Smokey Joe's and college
See Plaintiff's Response to the Motion for Summary Judgment at pg.
However, at Plaintiff's deposition, Defendants' counsel read the above
quoted paragraph of the Complaint to Plaintiff and then asked Plaintiff
whether he "had any specific knowledge that such meetings took place."
Plaintiff replied that he did not have any specific knowledge that any
meetings took place. See Patrick J. Ryan's Dep. Tr. at pg. 45, lines
6-22. Plaintiff was further asked which representatives he was referring
to in paragraph 59 of his Complaint. Plaintiff responded that he was
referring to Robert Duncan, the Zoning Officer, and to Charles Bloom, one
of the commissioners. When asked again whether he had any specific
knowledge that these individuals met and conspired, Plaintiff responded
"No." Id. at pg. 46, lines 1-11.
Defendant Duncan admits that he spoke with Hank Wilson and Charles
Bloom concerning Plaintiff and Plaintiff's connection with Smokey Joe's.
See Duncan Dep. Tr. at pgs. 37-40. However, as Plaintiff has admitted,
there is no evidence to demonstrate a conspiracy among these
individuals. Since Plaintiff has not presented the Court with any
evidence to demonstrate that these individuals acted with the purpose of
doing an unlawful act or doing a lawful act by unlawful means or for an
unlawful purpose, the Court grants summary judgment as to the conspiracy
See, e.g., Bristol Township, 2001 WL 1231708 at *5.
D. Intentional Interference with Contractual Relations
"The tort of interference with contract provides that one who
intentionally and improperly interferes with the performance of a
contract between another and a third person by causing the third person
not to perform the contract is subject to liability to the other for the
pecuniary loss resulting from the failure of the third person to perform
the contract." Schmidt, Long & Associates, Inc. v. Aetna U.S.
Healthcare, Inc., No. CIV.A. 00-3683, 2001 WL 856946, *2 (E.D.Pa. July
26, 2001) (citing Maier v. Maretti, 671 A.2d 701, 707 (Pa.Super. 1996)
(citing Restatement (Second) of Torts § 766)). "To maintain an action
for intentional interference with contractual relations, the plaintiff
must establish: (1) the existence of a contractual relation between the
complainant and a third party; (2) purposeful action on the part of the
defendant, specifically intended to harm the existing relation, or to
prevent a prospective relation from occurring; (3) the absence of a
privilege or justification on the part of the defendant; and (4) the
occasioning of actual legal damage as a result of the defendant's
conduct." Id. (citing Shiner v. Moriarty, 706 A.2d 1228, 1238 (Pa.Super.
1998) and Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 184 (3d
"Essential to recovery on the theory of tortious interference with
contract is the existence of three parties; a tortfeasor who
intentionally interferes with a contract between the plaintiff and a
third person." Maier, 671 A.2d at 707; see also Nova Telecom, Inc. v.
Long Distance Management Systems, Inc., No. CIV.A. 00-2113, 2000 WL
1593994, *9 (E.D.Pa. Oct. 26, 2000) ("[u]nder Pennsylvania law, one who
intentionally and improperly interferes with the performance of a
contract between another and a third person by causing the third person
not to perform the contract is subject to liability to the other for the
pecuniary loss resulting to the other from the failure of the third person
to perform the contract"); Daniel Adams Associates, Inc. v. Rimbach
Publishing, Inc., 519 A.2d 997, 1000 (Pa.Super. 1987) ("By definition,
this tort necessarily involves three parties. The tortfeasor is one who
intentionally and improperly interferes with a contract between the
plaintiff and a third person.").
Defendants move for summary judgment as to Plaintiff's interference
with contract claim arguing that Plaintiff has not presented any evidence
to demonstrate that any of the Defendants intentionally interfered with
Plaintiff's contract with Paul Flanigan. In response to the motion for
summary judgment Plaintiff merely recites what was pled in his
Complaint. Plaintiff does not point to any evidence in the record to
indicate that any Defendant interfered with his contract. In the absence
of any evidence to demonstrate intentional interference with Plaintiff's
contract by any Defendant, the Court will grant summary judgment as to
the interference with contract claim.
E. 42 U.S.C. § 1983 Claims for Substantive Due Process and Equal
1. Substantive Due Process
"In order for a plaintiff to prevail on a substantive due process claim,
he or she must prove that the governmental authority acted in such a way
as to infringe a property interest encompassed by the Fourteenth
Amendment." John E. Long, Inc. v. The Borough of Ringwood,
61 F. Supp.2d 273, 280 (D.N.J. 1998) (citing Sameric Corp., Inc. v.
142 F.3d 582, 590 (3d Cir. 1998) (other citations
omitted). "A violation of substantive due process rights is demonstrated
if the government's actions were not rationally related to a legitimate
state interest or were motivated by bias, bad faith, or improper motive."
Id. (citing Sameric, 142 F.3d at 590)(other citations omitted).
Defendants have conceded for purposes of this motion the Plaintiff has
demonstrated a protected property interest. Further, the Court finds that
Plaintiff has presented a genuine issue of material fact regarding
whether the decision was arbitrary and capricious or made based on an
improper motive. Thus, we deny Defendants' motion for summary judgment as
to Plaintiff's substantive due process claims.
ο Equal Protection Claim
Plaintiff argues that Defendants violated his equal protection rights
by applying the ordinances at issue in this case differently to him than
to other similarly situated properties.
Plaintiff's equal protection claims are not entitled to heightened
scrutiny. See Taylor Investment, Ltd. v. Upper Darby Township,
983 F.2d 1285, 1294 (3d Cir. 1993) (in "absence of a suspect class or
fundamental right, plaintiffs' equal protection claim merits no
heightened scrutiny")(internal citations omitted). Thus, for Plaintiff to
prevail on his equal protection claim, he must demonstrate that the
Defendants' actions were not "rationally related to a legitimate
Plaintiff has presented sufficient evidence to demonstrate a genuine
issue of material fact regarding whether the township ordinances at issue
were applied differently to at least one similarly situated
establishment.*fn11 Thus, summary judgment is denied as to the equal
An appropriate Order follows.
AND NOW, this ___ day of June, 2002, upon consideration of the Defendants'
Motion for Summary Judgment and the responses thereto, it is hereby
ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as
1. Defendants' Robert S. Ryan and Michael J. Morris are granted
immunity for all claims brought against them in their individual
2. the Motion for Summary Judgment as to Plaintiff's state law claims
for Conspiracy and Intentional Interference with Contractual and Business
Relations is GRANTED as to all Defendants; and
ο the Motion for Summary Judgment of Defendants' Lower
Merion Township, Robert E. Duncan, Robert S. Ryan, in his official
capacity as a representative of the Zoning Hearing Board, and Michael J.
Morris, in his official capacity as a representative of the Zoning
Hearing Board, as to the 42 U.S.C. § 1983 claims for violations of
substantive due process and equal protection is DENIED.