The opinion of the court was delivered by: JOHN E. JONES, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion for Summary Judgment ("the
Motion") (doc. 104) filed by Defendants on July 13, 2005. We will
deny the Motion for the reasons that follow.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY:
The factual background and procedural chronology of this case
has been set forth in prior orders and is well known to the
parties. The following brief recitation of that history is
sufficient for purposes of the Court's review of the pending
On December 14, 2004, Plaintiffs filed a complaint against
Defendants, Dover Area School District and Dover Area School District Board
of Directors (collectively "Defendants" or "DASD"), in the
United States District Court for the Middle District of Pennsylvania.
(See Rec. Doc. 1). On January 6, 2005, Defendants filed an
answer in the above-captioned case.
In the complaint, Plaintiffs assert that Defendants' October
18, 2004 resolution and November 19, 2004 press release
(collectively, "the Policy") facially and as applied violate the
Establishment Clause of the First Amendment to the United States
Constitution. (See Compl. at Count One). In addition,
Plaintiffs state that Defendants' Policy violates Art. 1, § 3 and
Art. III, §§ 15 & 29 of the Pennsylvania Constitution facially
and as applied. See id. at Count Two.
On July 13, 2005 Defendants filed the instant Motion which has
been briefed by the parties. On September 9, 2005 the Court heard
argument with respect to the Motion. The matter is therefore ripe
Summary judgment is appropriate if "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." FED .R. CIV. P. 56(c); see also
Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.
1990). The party moving for summary judgment bears the burden of
showing "there is no genuine issue for trial." Young v.
Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there
is a disagreement about the facts or the proper inferences which
a fact finder could draw from them. Peterson v. Lehigh Valley
Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
Federal Rule of Civil Procedure 56 provides that, where such a
motion is made and properly supported, the non-moving party must
then show by affidavits, pleadings, depositions, answers to
interrogatories, and admissions on file, that there is a genuine
issue for trial. FED. R. CIV. P. 56(e). The United States Supreme
Court has commented that this requirement is tantamount to the
non-moving party making a sufficient showing as to the essential
elements of their case that a reasonable jury could find in its
favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely
upon conclusory allegations in its pleadings or in memoranda and
briefs to establish a genuine issue of material fact." Pastore
v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences
"should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as true." Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d
Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations
Still, "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." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). "As to materiality, the substantive law will identify
which facts are material." Id. at 248. A dispute is considered
to be ...