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ABDULHAY v. BETHLEHEM MEDICAL ARTS

March 29, 2004.

GAZI ABDULHAY, M.D.; GYNECOLOGIC ONCOLOGY ASSOCIATES OF LEHIGH VALLEY, INC., trading as Lehigh Valley Women's Cancer Center; ABDULHAY ASSOCIATES, L.P.; and BETHLEHEM AMBULATORY SURGERY CENTER, LLC, Plaintiffs
v.
BETHLEHEM MEDICAL ARTS, L.P.; BETHLEHEM MEDICAL ARTS, LLC; KEVIN T. FOGARTY, M.D., Individually and as Managing Director of Bethlehem Medical Arts, L.P., and as President of Bethlehem Medical Arts, LLC; ROTH MARZ PARTNERSHIP, P.C.; MARK R. THOMPSON, Individually and as Vice President of Roth Marz Partnership, P.C., Defendants



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on the Motion of Bethlehem Medical Arts, L.P., Bethlehem Medical Arts, LLC, and Kevin T. Fogarty, M.D. to Dismiss Plaintiffs' Complaint, which motion was filed August 20, 2003 and the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) on Behalf of Defendants, Roth Marz Partnership, P.C. and Mark R. Thompson, Individually and as Vice President of Roth Marz Partnership, P.C. filed September 10, 2003.*fn1

  Because we determine that Gazi Abdulhay, M.D., Gynecologic Oncology Associates of Lehigh Valley, Inc. ("Lehigh Valley"), and Bethlehem Ambulatory Surgery Center, LLC ("BASC") were not parties to the contract with which the Bethlehem defendants are alleged to have interfered, we conclude that these plaintiffs lack standing to state a claim under either 42 U.S.C. § 1981 or § 1982. We further determine that a claim under 42 U.S.C. § 1981 or § 1982 Page 2 may be the basis for a claim under 42 U.S.C. § 1985(3). Accordingly, we conclude that Abdulhay Associates, L.P. ("Abdulhay") may state a Section 1985(3) claim. Hence, we grant in part and deny in part the Bethlehem defendants' motion to dismiss.

  Because we determine that Dr. Abdulhay and Abdulhay were not parties to a contract with defendants Roth Marz Partnership, P.C. and Mark R. Thompson ("Marz defendants"), we conclude that these plaintiffs lack standing to raise a claim under 42 U.S.C. § 1981. However, we further conclude that Lehigh Valley and BASC have stated a claim of alleged illegal discrimination to contractual rights by defendants Roth Marz Partnership, P.C. and Mark R. Thompson ("Marz defendants").

  Therefore, we conclude that Lehigh Valley's and BASC's claim under 42 U.S.C. § 1981 may be the basis for a claim under 42 U.S.C. § 1985(3). Moreover, we conclude that plaintiffs have adequately pled a claim pursuant to 42 U.S.C. § 1985(3). Accordingly, we grant in part and deny in part the Marz defendants' motion to dismiss.

  PROCEDURAL HISTORY

  The within civil action was initiated on July 25, 2003 when plaintiffs filed a ten-count Complaint. In Count Page 3 One all plaintiffs claim a violation of 42 U.S.C. § 1981 by the Bethlehem defendants. In Count Two, all plaintiffs aver a violation of 42 U.S.C. § 1981 by the Marz defendants. In Count Three, all plaintiffs assert a 42 U.S.C. § 1982 claim against the Bethlehem defendants. In Count Four, all plaintiffs claim a violation of 42 U.S.C. § 1985(3) by all defendants. In Count Five, Abdulhay asserts a breach of contract claim against Bethlehem Medical Arts, L.P.

  In Count Six, Lehigh Valley and BASC aver breach of contract against Roth Marz Partnership, P.C. Count Seven is a defamation claim by Dr. Abdulhay against the Marz defendants. In Count Eight, all plaintiffs aver an intentional interference with a contract claim against the Marz defendants. In Count Nine, Abdulhay asserts an intentional interference with a contract claim against the Bethlehem defendants. In Count Ten, all plaintiffs accuse all defendants of conspiring to engage in the above alleged conduct.

  This action is before the court on federal question jurisdiction. See 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiff's pendent state law claims. See 28 U.S.C. § 1367. Venue is appropriate because plaintiff alleges that the facts and circumstances Page 4 giving rise to the causes of action occurred in Northampton County. See 28 U.S.C. § 118, 1391. Plaintiff demands a trial by jury.

  FACTS

  Based upon the allegations in plaintiffs' Complaint, which we must accept as true for the purposes of this motion, the operative facts are as follows. Plaintiff Gazi Abdulhay, M.D. is a licensed physician and surgeon with a speciality in gynecological oncology.*fn2 Dr. Abdulhay is a United States citizen of Syrian and Turkish descent and claims to be an Arab-American.*fn3 He is the General Partner of Abdulhay, President of Lehigh Valley, and President and Managing Partner of BASC.*fn4

  On April 23, 2001, Abdulhay entered into a Lease Agreement with Bethlehem Medical Arts, L.P. ("BMA") for 6,000 net rentable feet of space on the first floor of a medical office building located at 5325 Northgate Drive, Bethlehem, Pennsylvania. ("Building").*fn5 Subsequently, Abdulhay leased an Page 5 additional 3,800 net rentable feet of space on the second floor of the Building and an additional 1,500 net rentable feet of space on the first floor of the Building.*fn6 (The space which Abdulhay leased from BMA is collectively referred to as the "Leased Premises".) Page 6

  All of the leased areas were subject to the agreements in the Lease Agreement ("Lease").*fn7 Pursuant to the terms of the Lease, Abdulhay purchased shares in Bethlehem Medical Associates, L.L.C., the business which through Dr. Fogarty managed the Building.*fn8

  The Leased Premises were unfinished at the time of the Lease.*fn9 The Lease contains no time limit for Abdulhay to complete improvements on the Leased Premises.*fn10 Improvements to the Leased Premises are governed by Section 7 of the Lease.*fn11 Dr. Abdulhay, Abdulhay, and the Bethlehem defendants agreed that Dr. Abdulhay, Abdulhay, and BASC would developed the Leased Premises as both medical offices and an ambulatory surgery center.*fn12

  The intent of plaintiffs and the Bethlehem defendants was that Dr. Abdulhay, BASC and other physicians located by Dr. Abdulhay would occupy the Leased Premises after improvements to the Leased Premises were complete and extend Page 7 medical care to patients of Dr. Abdulhay, Lehigh Valley, and BASC.*fn13 There is no allegation that the agreements regarding Dr. Abdulhay, Lehigh Valley, and BASC were reduced to writing or executed by the parties. Page 8

  Because Suites 103 and 200 of the Leased Premises were to be fitted as an ambulatory surgery center, plaintiffs were required to obtain approval of the planned improvements from the Pennsylvania Department of Health ("DOH"). Plaintiffs were required to comply with a complex set of DOH regulations before construction could begin.*fn14

  Plaintiffs needed an architect to design the improvements to the Leased Premises. The Bethlehem defendants introduced Dr. Abdulhay to Roth Marz Partnership, P.C.*fn15 The Bethlehem defendants had a longstanding relationship with Roth Marz Partnership.*fn16 Dr. Abdulhay, as President of Lehigh Valley and BASC, entered into a contract with Roth Marz Partnership for improvements to the Leased Premises at the Building.*fn17

  On November 2, 2001, an initial set of plans for the Page 9 project was submitted to, and approved by, DOH. On December 18, 2002, DOH approved revised plans for the project.*fn18 Page 10

  In Spring 2003, all defendants conspired and implemented a plan to stop the plaintiffs from continuing with the improvements. Defendants collectively created a sham default of the lease. On or after May 6, 2003, the Bethlehem defendants, in concert with the Marz defendants implemented a strategy to force Dr. Abdulhay and Abdulhay to abandon the improvements and vacate the Building. This strategy was implemented to prevent Dr. Abdulhay, Abdulhay, Lehigh Valley, and BASC from occupying the Leases Premises.*fn19

  In the course of the conspiracy, the following occurred. The Marz defendants, who were in possession of the original DOH-approved plans for the Leased Premises, refused to surrender the plans to BASC.*fn20 As a result, BASC was forced to resubmit plans to DOH on May 27, 2003. The resubmitted plans were approved on May 27, 2003.*fn21

  Abdulhay and BASC submitted this second set of plans to Hanover Township, Northampton County, Pennsylvania, to obtain a building permit. This permit was granted on June 3, 2003.*fn22 However, on June 6, 2003, the Marz defendants sent a Page 11 letter to Jim Sterner, the Township Manager of Hanover Township, falsely claiming that Dr. Abdulhay had tampered with the plans submitted to obtain ...


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