United States District Court, M.D. Pennsylvania
December 7, 2005.
GILFRED L. SPRADLIN, Plaintiff,
BOROUGH OF DANVILLE, a municipal corporation, et al., Defendants.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
Gilfred Spradlin, pro se, initiated this civil action on
December 9, 2002. In his amended complaint,*fn1 Spradlin
named as defendants the Borough of Danville, Danville Borough
Council, and various Borough officials, including Codes and
Zoning Enforcement official Jeanne Kiewlak, and Danville Borough
Solicitors Robert Marks and Michael Dennehy. The complaint
alleges various federal and state claims under the Constitution
of the United States and the Constitution and laws of the
Commonwealth of Pennsylvania. The claims arise out of Spradlin's
ownership of certain properties in the Borough of Danville, and
the plethora of zoning and code disputes associated with those
properties. All defendants filed motions to dismiss. All claims against
defendants in their official capacities were dismissed as
redundant on December 10, 2003. (Rec. Doc. No. 34.) Various
counts were dismissed as time-barred, and others were dismissed
due to the plaintiff's failure to allege the necessary elements
of the claim. After "expending considerable effort honing
plaintiff's accusations," the court allowed a number of claims to
survive: substantive and procedural due process claims in Counts
VII, IX, and XI; federal and state claims for an allegedly
unreasonable administrative search of plaintiff's Water Street
Property in Count IX; a tortious interference with contractual
relations claim against the Danville Solicitors in Count X; a
state claim for malicious prosecution in Count XI; and a free
speech and equal protection claim in Count XIII. (Rec. Doc. No.
34, at 22-24.)
The parties have conducted discovery, and the plaintiff has
deposed 23 persons. Now pending before the court are motions for
summary judgment filed by the Borough of Danville, the Danville
Borough Council, and Jeanne Kiewlak (collectively the "Borough
Defendants"), and Borough Solicitors Marks and Dennehy (the
"Solicitor Defendants"). The Borough Defendants have moved for
dismissal of the claims against the Danville Borough Council as
duplicative of the claims against the Borough itself. Also
pending is the Borough Defendants' motion to strike portions of
the plaintiff's counterstatement of facts. DISCUSSION:
I. THE DANVILLE BOROUGH COUNCIL'S MOTION TO DISMISS
In its motion for summary judgment, the Borough Defendants
argue that the claims against the Danville Borough Council are
duplicative of the claims against the Borough of Danville, and
should therefore be dismissed. (Rec. Doc. No. 91, at 5.) In
response, Spradlin argues that because a municipality acts
through its officials, it is essential to retain the Council as a
defendant. (Rec. Doc. No. 107, at 4.) Spradlin's argument is
misplaced. Because the Borough itself as a named defendant would
ultimately be liable for any judgment entered against the Borough
Council, the Council is a redundant party to the case. See
Satterfield v. Borough of Schuylkill Haven, 12 F. Supp. 2d 423,
431 (E.D. Pa. 1998) (Van Antwerpen, J.). This dismissal does not
in any way prejudice Spradlin's right to pursue his claims based
on the alleged misconduct of the Borough Council. "However, since
the Borough itself will be directly liable for any misconduct on
the part of the Borough Council, the inclusion of both entities
as Defendants is unnecessary." Id. All claims against the
Danville Borough Council will therefore be dismissed.
II. THE MOTIONS FOR SUMMARY JUDGMENT ON THE REMAINING CLAIMS A. LEGAL STANDARDS
1. Summary Judgment
A district court may properly grant a motion for summary
judgment "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). The plain language of
the rule "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 (1986).
At the summary judgment stage, "the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). A genuine issue of material fact is one that may
reasonably be resolved in favor of either party. Id. In
determining whether there is a disputed issue of material fact,
the court will draw all reasonable inferences and any ambiguities
in favor of the nonmoving party. Am. Flint Glass Workers Union
v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995) (citation
omitted). The party opposing a motion for summary judgment "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The nonmoving party "has the
duty to set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule
in its favor." Ridgewood Bd. Of Educ. v. N.E. ex rel. M.E.,
173 F.3d 238, 252 (3d Cir. 1999) (citations omitted); see also
Fed.R.Civ.P. 56(e). "Speculation and conclusory allegations do not
satisfy this duty." Ridgewood Bd. Of Educ., 173 F.3d at 252
(citation omitted). Furthermore, the "mere existence of a
scintilla of evidence in support of the [nonmoving party's]
position will be insufficient." Anderson, 477 U.S. at 252.
In this case, plaintiff Gilfred Spradlin has proceeded pro
se. "While pro se pleadings are entitled to liberal
construction, the plaintiff must still set forth facts sufficient
to withstand summary judgment." Shabazz v. Odum,
592 F. Supp. 1513, 1515 (M.D. Pa. 1984) (Caldwell, J.). The court has granted
this pro se plaintiff every liberality in construing his filings.
2. Section 1983
Spradlin's remaining claims are brought under 42 U.S.C. § 1983.
Section 1983 does not create substantive rights, but rather
provides a remedy for the violation of rights created by federal law. Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The statute provides
for a cause of action against persons who, acting under color of
state law, deprive another individual of any rights, privileges,
or immunities secured by the Constitution. 42 U.S.C. § 1983. In
order for a plaintiff to prevail under Section 1983, he must
establish two elements: (1) that the defendants were "state
actors," and (2) that they deprived the plaintiff of a federal
right. See Groman, 47 F.3d at 633.
A. Spradlin Has Not Shown That The Solicitor Defendants are
As an initial matter, the Solicitor Defendants argue that they
are not state actors and cannot therefore be held liable under
Section 1983. 43 U.S.C. § 1983 requires that Spradlin show that
the Solicitor Defendants acted under the color of state law and
denied him a federally protected constitutional or statutory
right. Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277
(3d Cir. 1999) (citing Lugar v. Edmondson Oil Co.,
457 U.S. 922, 930 (1982); Jordan v. Fox, Rothschild, O'Brien & Frankel,
20 F.3d 1250, 1264 (3d Cir. 1994)).
The Solicitor Defendants state that "[o]ther than the fact that
Marks and Dennehy are solicitors for the Borough, there is no
evidence as to exactly what alleged conduct by Marks and/or
Dennehy has deprived plaintiff of his right to property without
due process of law." (Rec. Doc. No. 100, at 8.) The court is likewise unable to identify the alleged conduct of the Solicitor
Defendants that Spradlin claims denied him of his rights.
Spradlin argues that the Solicitor Defendants "participated in
the adoption and enforcement of Borough Ordinances which have
deprived Plaintiff of his basic fundamental rights." (Rec. Doc.
No. 117, at 4.) Spradlin also states that the Solicitor
Defendants "possessed first hand knowledge" that his rights "were
being denied at their hands," that the solicitors "were active
participants in the derpivation [sic] and could predict with
accuracy when the deprivation would take place." (Id. at 6.)
Viewing the record in the light most favorable to the plaintiff,
there is nothing to support these ambiguous allegations.
Even were plaintiff to directly identify conduct that allegedly
deprived him of a federal right, he has not proven that the
Solicitor Defendants were state actors for the purpose of Section
1983. The record indicates that the Solicitors for the Borough of
Danville maintain a private practice with the Borough as one of
the firm's clients. (Rec. Doc. No. 92, Ex. E, Dennehy Dep., at
5-7.) This role as solicitors for the Borough does not render
them state actors per se. O'Hanlon v. City of Chester, No.
CV 00-0664, 2002 WL 393122, at *4 (E.D. Pa. Mar. 12, 2002)
(Hutton, J.). "Attorneys performing their traditional functions
will not be considered state actors solely on the basis of their
position as officers of the court." Angelico, 184 F.3d at 277 (citing Polk County v.
Dodson, 454 U.S. 312, 318 (1981)). The Third Circuit has held
that "[a] person may be found to be a state actor when (1) he is
a state official, (2) he has acted together with or has obtained
significant aid from state officials, or (3) his conduct is, by
its nature, chargeable to the state." Angelico, 184 F.3d at 277
Spradlin has adduced no evidence that either Marks or Dennehy
is a state official. Spradlin has likewise failed to identify
conduct chargeable to the state allegedly engaged in by the
solicitors. Rather, Spradlin argues that Marks and Dennehy
conspired with Borough officials to deprive him of his property
without due process. (Rec. Doc. No. 117, at 6.) Spradlin directs
this court to no facts in the record, and after our own review we
have found none, from which a reasonable jury could conclude that
such a conspiracy existed. Spradlin simply states that "[i]t is a
fact Defendant worked in concert with Borough Defendants
(primarily Kiewlak) resulting in Plaintiff's rights being
"Speculation and conclusory allegations do not satisfy [the]
duty" to set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could find
in favor of the nonmoving party. Ridgewood Bd. Of Educ.,
173 F.3d at 252. Spradlin attempts to rebut the Solicitor Defendants'
motion for summary judgment with conclusory allegations of
conspiracy, but fails to identify facts in the record to support such a claim. Spradlin
has failed to present evidence indicating that the Solicitor
Defendants are state actors for the purpose of 42 U.S.C. § 1983.
Summary judgment will therefore be entered for the Solicitor
Defendants on all of Spradlin's remaining Due Process,
Fourth Amendment, and First Amendment claims.*fn2
B. Due Process Claims (Counts VII, IX, and XI)
Spradlin has alleged that he was deprived of his rights to
substantive and procedural due process. The claims arise in three
different counts. In Count VII, Spradlin claims that he was
"denied a reasonable and meaningful opportunity to appeal" a
Notice of Violation sent by the Codes and Zoning Enforcement
Official on September 7, 2000, because "a time limit of (5) five
days did not provide Plaintiff a meaningful appeal process."
(Am. Compl., Rec. Doc. No. 19 at ¶ 133.) In Counts IX and XI,
Spradlin claims that he was denied his right to due process
because the Borough failed to establish a BOCA Code Appeals
Board, and that failure denied Spradlin the opportunity to appeal a Stop
Work Order issued on or about January 15, 2001 (id. at ¶¶
167-69), and a Correction Notice issued on October 9, 2001 (id.
at ¶¶ 188-191). We have construed Spradlin's amended complaint to
allege that these procedural deficiencies denied his fundamental
property interest in the use and development of his property. All
defendants have moved for summary judgment on all counts.
1. Procedural Due Process
The Fourteenth Amendment of the United States Constitution
forbids a state from depriving a person of life, liberty, or
property without due process of law. U.S. Const. amend. XIV, § 1.
In a case such as this, where a plaintiff has sued under
42 U.S.C. § 1983 alleging that state actors*fn3 failed to
provide him due process, we employ a "familiar two-stage
analysis." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)
(quoting Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d
Cir. 1984)). We inquire (1) whether the asserted individual
interests are encompassed within the Fourteenth Amendment's
protection of "life, liberty, or property,"*fn4 and (2)
whether the procedures available provided the plaintiff with "due process of law." Id.
"In order to state a claim for failure to provide due process,
a plaintiff must have taken advantage of the processes that are
available to him or her, unless those processes are unavailable
or patently inadequate." Id. "A state cannot be held to have
violated due process requirements when it has made procedural
protection available and the plaintiff has simply refused to
avail himself of them." Id. (quoting Dusanek v. Hannon,
677 F.2d 538, 543 (7th Cir. 1982)). "A due process violation is not
complete when the deprivation occurs; it is not complete unless
and until the State fails to provide due process." Id. (quoting
Zinermon v. Burch, 494 U.S. 113, 126 (1990)). "If there is a
process on the books that appears to provide due process, the
plaintiff cannot skip that process and use the federal courts as
a means to get back what he wants." Id. (citing McDaniels v.
Flick, 59 F.3d 446, 460 (3d Cir. 1995)).
In Count VII, Spradlin claims that the five-day window provided
by Section 139-55(B)(3) of the Borough of Danville Zoning Ordinance to
appeal a zoning violation is unreasonable and fails to provide a
meaningful opportunity to review.*fn5 This claim revolves
around a Notice of Violation alleging a zoning violation at
Spradlin's Water Street Property. Spradlin leased portions of the
property to a dry cleaner and a salon in late 1999 or early 2000.
Kiewlak issued a Notice of Violation on September 7, 2000,
advising Spradlin that he needed to obtain a zoning permit for
these uses, as the uses permitted by the existing zoning permit
were limited to a gym and office space.*fn6 It is undisputed
that the Notice of Violation advised Spradlin of his right to
appeal, and contained a photocopy of Section 139-55(B)(3) of the
Zoning Ordinance, which pertains to appeals. However, Spradlin
did not appeal. Instead, he argues to this court that the appeal
period is too short. The Third Circuit has determined that "[i]n Pennsylvania the
procedure for challenging zoning ordinances substantially
conforms with the general due process guidelines enunciated by
the Supreme Court." Rogin v. Bensalem Twp., 616 F.2d 680, 695
(3d Cir. 1980); see also Siegmond v. Fedor, No.
3:CV-01-2266, 2004 WL 1490430, at *7 (M.D. Pa. June 29, 2004)
(Vanaskie, C.J.); Omnipoint Commc'ns, Inc. v. Penn Forest Twp.,
42 F. Supp. 2d 493, 507 (M.D. Pa. 1999) (Vanaskie, C.J.). As the
Third Circuit has explained:
The Pennsylvania legislature has enacted a system for
processing challenges to zoning ordinances. . . . A
landowner who wishes to challenge the validity of a
zoning ordinance or amendment that restricts the use
or development of its land may file a challenge with
the Zoning Hearing Board and may appeal from any
decision by the Zoning Officer applying the
ordinance. [Such an appeal] may be taken where . . .
the landowner believes that the Zoning Officer
misapplied an applicable rule of law. . . . If the
landowner is dissatisfied with the Board's decision
it then has the right to appeal to the Court of
Common Pleas. The appeal may take the form of direct
judicial review of the Board's decision, or the court
may take new evidence and enter its own findings of
fact after trial de novo. The Court is authorized
to "declare any ordinance or map invalid and to set
aside or modify" any action, decision, or order of
the Township, Zoning Officer, or Zoning Hearing
Rogin, 616 F.2d at 694-95 (citations omitted). The procedural
mechanism afforded to Spradlin was this: (1) appeal Kiewlak's decision to the ZHB;
(2) if dissatisfied with the decision of the ZHB, appeal to the
Court of Common Pleas. Instead of pursuing the proper avenue of
appeal, Spradlin sidesteps the constitutional procedure provided
in Pennsylvania and instead complains in federal court that the
five-day window in which to file a notice of appeal is
The five-day window is not a period in which a prospective
appellant must mount an entire defense to the charged zoning
violation. Rather, "[a] property owner receiving a Notice of
Violation in Danville Borough has five days from the date of
receipt to mail or deliver a simple statement to the Borough
Offices setting forth the section of the Notice in dispute, the
reason for dispute, and a request for a hearing before the ZHB."
(Rec. Doc. No. 91, at 10-11.) This does not appear to be a
complicated matter requiring in-depth and time-consuming
"[D]ue process, unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place and
circumstances. Due process is flexible and calls for such
procedural protections as the particular situation demands."
Mathews v. Eldredge, 424 U.S. 319, 334 (1976) (quotations and
citations omitted). To determine the requirements of due process
in any given situation, the Supreme Court has articulated a
balancing test for the court to apply. Id. at 335; Rogin,
616 F.2d at 694. The "private interest affected by the governmental
action and the value of additional procedural safeguards are to be weighed
against the fiscal and administrative burdens that additional
procedures would impose on the government." Rogin,
616 F.2d at 694 (citing Eldredge, 424 U.S. at 335).
The private interest here is the ability to appeal a zoning
violation on private property. To be sure, it would be possible
for the Borough to choose a lengthier period of time in which a
citizen could file an appeal, but the Borough has not chosen to
do so. Pennsylvania law does not mandate a minimum time period
for a citizen to file an appeal from a zoning determination.
See 53 Pa. Cons. Stat. Ann. § 10616.1. The parties have not
briefed what additional burden an extended period of time would
impose on the Borough government, but the court is persuaded that
the five-day window satisfies the requirements of due process in
this zoning context.
"In order to state a claim for failure to provide due process,
a plaintiff must have taken advantage of the processes that are
available to him or her, unless those processes are unavailable
or patently inadequate." Alvin, 227 F.3d at 116. Spradlin did
not take advantage of the processes available to him, namely an
appeal to the ZHB, and a subsequent appeal to the Pennsylvania
Court of Common Pleas. Spradlin does not argue that the process
is unavailable; rather, he argues that it is unreasonable. To
make his claim for a violation of procedural due process, Spradlin must show that the five-day window is "patently
inadequate." Since the "process on the books . . . appears to
provide due process, the plaintiff cannot skip that process and
use the federal courts as a means to get back what he wants."
Id. (citing McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir.
1995)). Because of the flexible nature of due process and the
relatively simple act of filing an appeal from a notice of a
zoning violation, we find that the five-day appeal period is not
patently inadequate. Spradlin's procedural due process claim on
this count fails.
In Counts IX and XI, Spradlin claims that he was denied his
right to due process because the Borough failed to establish a
BOCA Code Appeals Board. Such a Board enables citizens to appeal
a decision of the code official issued pursuant to the BOCA
codes.*fn7 Spradlin alleges that this failure denied him the
opportunity to appeal a Stop Work Order issued around January 15,
2001 and a Correction Notice issued on October 9, 2001. The
January 15 Stop Work Order was issued pursuant to the Danville
Borough 1993 BOCA Basic Building Code for Spradlin's failure to
obtain a permit to perform construction and demolition work on his Water Street Property. The October Correction Notice was
issued pursuant to the Danville Borough 1993 BOCA Property
Maintenance Code for Spradlin's alleged failure to provide heat
to tenants residing in his Mulberry Street apartment building.
The defendants admit that no Appeals Board was empaneled at the
time Spradlin was issued the Stop Work Order and Correction
Notice. Spradlin responds that due to this deficiency, he had no
effective avenue of appeal because there was no appellate body in
existence. However, Spradlin has pointed to no authority
requiring that there be a standing Code Appeals Board. The BOCA
Code states that the Appeals Board shall consist of five
individuals possessing varied qualifications, and requires that
the Board "shall meet upon notice from the chairman, within ten
days of the filing of an appeal, or at stated periodic meetings."
BOCA Nat'l Building Code § 121.3 (Rec. Doc. No. 92, at Ex. J).
The fact that a Code Appeals Board was not empaneled, however,
does not prevent a prospective appellant from filing a notice of
appeal with the Borough Offices.*fn8 The Borough Defendants argue that had Spradlin appealed, the
Borough Council "would have been required to either timely fill
the vacancies on the Board of Review and hear the appeal, or
dismiss the Correction Notices issued to Plaintiff." (Rec. Doc.
No. 91, at 14.) The BOCA Code provides that should an appellant
be dissatisfied with the decision of the Appeals Board, such a
person "shall have the right to apply to the appropriate
court for a writ of certiorari to correct errors of law." 1993
BOCA Nat'l Building Code § 121.7 (emphasis added) (Rec. Doc. No.
92, at Ex. J). The appropriate court would be the Pennsylvania
Court of Common Pleas. See Manganaro v. Reap, No.
3:CV-00-299, slip op. at *6 n. 1 (M.D. Pa. April 27, 2001)
(Munley, J.) (where plaintiff argued that he was denied
procedural due process because the BOCA Code Appeals Board was
defective, the court found that his proper avenue of appeal was
through the state courts; it was inappropriate to raise the issue
in federal court without having appealed to the Code Appeals Board). Likewise, if a Board were
empaneled and it upheld the code official's determinations,
Spradlin may have appealed to state court.
A violation of due process "is not complete unless and until
the State fails to provide due process." Alvin, 227 F.3d at 116
(quoting Zinermon, 494 U.S. at 126.) Spradlin may not argue in
federal court that he was denied due process without first
attempting to utilize the procedures made available by the
Borough. The proper procedure for Spradlin to follow would have
been to file a notice of appeal from the charged BOCA violations
with the Borough offices. If dissatisfied with the response, the
Court of Common Pleas would have been the appropriate court to
challenge the decision (or lack thereof) by the Appeals Board.
Instead, Spradlin has brought this claim in federal court, and we
cannot rule that the Borough Defendants failed to provide the
plaintiff due process when they have not been put to the test in
the first instance.
Summary judgment will be granted in favor of all defendants on
the plaintiff's procedural due process claims.
3. Substantive Due Process
To prevail in a Section 1983 substantive due process claim
regarding a municipal land use decision, a plaintiff must meet
two requirements. First, the plaintiff must show that the property interest at issue is worthy
of substantive due process protection. Siegmond v. Fedor, No.
3:CV-01-2266, 2004 WL 1490430, at *7 (M.D. Pa. June 29, 2004)
(Vanaskie, C.J.) (quoting Nicolette v. Caruso,
315 F. Supp. 2d 710, 721 (W.D. Pa. 2003)). Second, the plaintiff must prove that
the government's deprivation of that protected property interest
"shocks the conscience." Id.; see also Eichenlaub v. Twp.
of Indiana, 385 F.3d 274, 285 (3d Cir. 2004) (Chertoff, J.)
("whether a zoning official's actions or inactions violate due
process is determined by utilizing a `shocks the conscience'
test"); United Artists Theatre Circuit, Inc. v. Twp. of
Warrington, 316 F.3d 392, 399-400 (3d Cir. 2003) (Alito, J.)
("our cases have repeatedly acknowledged that executive action
violates substantive due process only when it shocks the
The use and enjoyment of property are interests protected by
the substantive component of the Fourteenth Amendment due process
clause. See, e.g., Siegmond, 2004 WL 1490430, at *7 (citing
Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir.
1988)). Spradlin thus satisfies the first requirement of the
substantive due process test in the sense that his interest in
the general use and enjoyment of his property is protected.
As the second component of a substantive due process claim, a
plaintiff must show that the government's conduct shocks the
conscience. Whether executive action shocks the conscience depends on the factual
context, United Artists, 316 F.3d at 400, but "only the most
egregious official conduct" offends the Constitution, id. at
399 (quoting County of Sacramento v. Lewis, 523 U.S. 833,
845-46 (1998)). The "shocks the conscience" test is "designed to
avoid converting federal courts into super zoning tribunals."
Eichenlaub, 385 F.3d at 285. "The latest jurisprudence of the
Third Circuit . . . evinces a preference for evidence of self
dealing or other unjust enrichment of the municipal decision
makers as a way to meet the shocks the conscience standard."
Robinson v. Limerick Twp., No. Civ.A. 04-3758, 2005 WL 17972
(E.D. Pa. Jan. 4, 2005) (Kelly, J.) (citing Eichenlaub,
385 F.3d at 285).
Spradlin appears to allege that the actions of the Borough
Defendants that shock the conscience were the adoption of the
1993 BOCA Building and Property Maintenance Codes (and the
allegedly unconstitutional appeals process), the adoption of the
Danville Borough Zoning Ordinances in 1996, and the enforcement
of the BOCA Code and zoning ordinance by Jeanne Kiewlak, which
Spradlin claims was "not appropriate, and was arbitrary, bias
[sic] and not in good faith." (Rec. Doc. No. 107, at 17.)
Nothing in the record indicates that anything about the way
Danville Borough adopted the 1993 BOCA National Building and
Property Maintenance Code shocks the conscience. Plaintiff argues that the process by
which the Borough adopted the Code was defective. Spradlin has
not identified any admissible evidence substantiating this claim,
and instead directs the court to the opinion of an attorney,
formulated for an unrelated matter, regarding the Borough's
adoption process. Furthermore, Spradlin does not explain how this
alleged deficiency impacted his right to use or enjoy his
property. There is no evidence of self dealing, unjust
enrichment, or any other untoward conduct on behalf of the
Borough Defendants with regard to the adoption of the 1993 BOCA
Codes; consequently, Spradlin's substantive due process claim
Likewise, nothing indicates that any aspect of the Borough's
adoption of the 1996 Danville Borough Zoning Ordinance shocks the
conscience. The Ordinance was drafted by Marvin Brotter, Ph.D., a
longtime city planning consultant. Spradlin objects to the
alleged involvement of Kiewlak and others with the development of
the Ordinance, but cites no part of the record regarding any such
involvement and cites no authority suggesting that it would be
improper or illegal. Nothing in the record suggests self dealing,
unjust enrichment, or any other untoward activity on the part of
the Borough Defendants or anyone else with regard to the adoption
of the Zoning Ordinance. Spradlin's claim fails.
Finally Spradlin claims that Kiewlak's enforcement of the BOCA
Code and zoning ordinance was inappropriate, arbitrary, and in bad faith.
In support of these claims, Spradlin states that Kiewlak "could
predict when Plaintiff would be denied his constitutionally
protected rights, as she played an integral part in the drafting
of the content of the ordinances." (Id. at 18.) Spradlin claims
that "Kiewlak issued notices of violation and/or correction
notices with the full knowledge Plaintiff would be deprived of
his rights." (Id.) Spradlin fails to explain or substantiate
these claims. Spradlin also complains of the way Kiewlak filed a
complaint against him for failure to provide his tenants with a
source of heat at his Mulberry Street apartment building.
Nothing in the record indicates that Kiewlak's conduct with
regard to the heating dispute at the Mulberry Street building
shocks the conscience. In October 2001, one of Spradlin's tenants
contacted Kiewlak to complain that there was no heat in her
apartment building, which was owned by Spradlin. Kiewlak
investigated the complaint by interviewing the tenant and her
roommate, both of whom denied having heat. Kiewlak also obtained
a statement signed by five tenants in Spradlin's Mulberry Street
building stating that none of them had heat. Kiewlak also
contacted PG Energy, supplier of natural gas to the building, who
informed Kiewlak that the gas supply to the building had been
shut off in June 2001 due to Spradlin's failure to pay the bill.
Based on this investigation, Kiewlak issued Spradlin a Correction Notice and eventually filed a summary criminal complaint against
Spradlin. The charges were eventually dismissed.
Spradlin claims that Kiewlak's conduct with regard to the
Mulberry Street apartment shocks the conscious because, he
claims, she did no investigation and instead "took the word of a
tenant who was no longer living at the property and the tenant
was the niece of Borough Councilman, Ken Strausser." (Rec. Doc.
No. 107, at 21.) In this argument, Spradlin ignores the
investigative efforts of Kiewlak regarding the other tenants of
the building, as well as the gas company. Spradlin points to no
evidence of self-dealing or unjust enrichment on the part of
Kiewlak. Instead, Spradlin asserts that the defendants are "out
to get him." (Rec Doc. No. 19, at ¶ 200.) But nothing in the
record suggests that the Borough Council, the Borough Solicitor,
or the Codes and Zoning Enforcement Official singled plaintiff
out or acted in an egregious manner with respect to the use,
development or ownership of his property. "Speculation and
conclusory allegations do not satisfy [the] duty" to set forth
specific facts showing that a genuine issue of material fact
exists and that a reasonable factfinder could find in favor of
the nonmoving party. Ridgewood Bd. Of Educ., 173 F.3d at 252.
Furthermore, even were there improper motives resulting from
personal animus an assumption unsupported by the record in this
case such a situation is insufficient in itself to shock the conscience. See Corneal v. Jackson Twp., 94 F. App'x 76, 78
(3d Cir. 2004) ("Although some conduct may evidence personal
animus . . . under United Artists, mere improper motives are
Spradlin has not pointed to anything in the record that "shocks
the conscience," and after a thorough review of the record, we
have found nothing rising to this level. Construing all the facts
in the light most favorable to the plaintiff, no reasonable
factfinder could find that the defendants deprived Spradlin of
his substantive due process rights by acting in a manner that
shocks the conscience. Summary judgment will be entered in favor
of all defendants on Spradlin's substantive due process claims.
C. Unreasonable Search Claim (Count IX)
In Count IX of his amended complaint, Spradlin alleges that
Kiewlak's warrantless administrative search of the Water Street
Property on December 14, 2000, denied him rights secured by the
Fourth Amendment to the United States Constitution*fn9 and
Article I, Section 8 of the Pennsylvania Constitution.*fn10
The Borough Defendants argue that Kiewlak obtained consent to perform
the administrative search, or, in the alternative, that Kiewlak
is entitled to qualified immunity.
The undisputed material facts relevant to Spradlin's claim of
unreasonable search are these. On November 11, 1998, Spradlin's application
for a zoning variance for the Water Street Property was approved
by the Danville Borough Zoning Hearing Board ("ZHB"). On January
7, 2000, the ZHB issued Spradlin a letter reminding him that the
Danville Borough Zoning Ordinance required him to submit a new
application for a variance for any occupancy of the Property that
would occur after the November 11, 1998 variance expired.
Spradlin did not apply for a new variance.
On or about November 28, 2000, the Borough Secretary received a
citizen complaint reporting that Spradlin was constructing a
gabled or pitched roof on the Water Street Property. It is the
duty of Jeanne Kiewlak, Danville Borough Codes and Zoning
Administrator, to respond to citizen complaints regarding,
inter alia, building code and zoning matters. Pursuant to
this duty, Kiewlak contacted Spradlin, and on November 30, 2000,
Spradlin orally granted Kiewlak permission to inspect the
Property on December 1, 2000.
On the morning of December 1, Spradlin advised Kiewlak that he
wanted to meet with her on either December 1 or December 4 before
allowing her to inspect the property. Spradlin and Kiewlak did
not meet on December 1 or December 4, because Spradlin was
unprepared. On December 1, 2000, Kiewlak issued a letter to
Spradlin requesting that the Water Street Property be made
available for inspection at 10:00am on December 8, 2000.*fn11 The December
8 inspection was rescheduled for December 14, 2000. Spradlin was
aware of the rescheduling,*fn12 but never contacted Kiewlak
regarding the December 14 inspection.
At 10:00am on December 14, 2000, Kiewlak arrived at the Water
Street Property for the scheduled inspection, but Spradlin was
not present. Clayton Kirchman, Spradlin's employee, was the only person present at the
Water Street Property at the time of the December 14 inspection.
Spradlin confirms that Kirchman "had control of the gym."
(Pl.'s Stmt. of Mat. Facts, Rec. Doc. No. 108, at ¶ 67.)
Kirchman knew that Kiewlak was the Codes and Zoning
Administrator for Danville Borough, and he knew that she was
there to inspect the Water Street Property. Kirchman escorted
Kiewlak into the building, and showed her the locations on the
first and second floors that she wished to inspect. Thus
accompanied by Kirchman, Kiewlak inspected the Water Street
Property. Spradlin challenges this administrative search as
The Fourth Amendment protects "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV. The
purpose of this Amendment "is to safeguard the privacy and
security of individuals against arbitrary invasions by
governmental officials." Camara v. Municipal Court of the City
and County of San Francisco, 387 U.S. 523, 528 (1967). While it
is true that "the Fourth Amendment's prohibition on unreasonable
searches and seizures is applicable to commercial premises," New
York v. Burger, 482 U.S. 691, 699 (1987), "[a]n expectation of privacy in commercial premises . . . is different
from, and indeed less than, a similar expectation in an
individual's home," id. at 700.
A warrantless search is "per se unreasonable . . . subject only
to a few specifically established and well-delineated
exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)). "[T]his rule applies to commercial premises as well as
homes." Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978).
Therefore, a warrantless search of commercial premises would be
unreasonable (and therefore unconstitutional) unless it falls
into one of the few specifically established exceptions to the
general rule. "[O]ne of the specifically established exceptions
to the requirements of both a warrant and probable cause is a
search that is conducted pursuant to consent." Schneckloth,
412 U.S. at 219 (citations omitted); United States v. Wilson,
413 F.3d 383, 388 (3d Cir. 2005).
In this case, for the defendants to rely upon the consent
exception, it must be shown that (1) the consent was given
voluntarily, see Bumper v. North Carolina, 391 U.S. 543,
548-49 (1968), and (2) either Spradlin himself consented to the
search or consent was obtained from a third party with the
ability to furnish valid consent, see United States v.
Matlock, 415 U.S. 164, 171 (1974). See also United States
v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). Spradlin claims that he did not consent to the search. However,
Spradlin had notice that the inspection would occur on December
14, 2000. Spradlin never cancelled the inspection, nor did he
advise Kiewlak that she was not permitted to inspect the Water
Street Property on December 14. However, we need not decide
whether Spradlin himself consented to the inspection if a third
party with the legal ability to do so consented to the
inspection. Mr. Kirchman, an employee of Spradlin's who was
working at the gym on the day of the inspection, escorted Kiewlak
throughout the property. We must decide whether Kirchman had the
legal ability to furnish valid consent to Kiewlak to search the
The Third Circuit has recognized "a variety of circumstances in
which a third party may validly consent to a search." See
Bolden v. Southeastern Penn. Transp. Auth., 953 F.2d 807, 826
(3d Cir. 1991). The Court of Appeals has specifically noted that
"employees with significant responsibilities relating to the
object of the search" may validly consent to a search of their
employer's property. Id. Other courts have decided that
employees with control over their employer's property have the
ability to consent to governmental searches. See, e.g.,
Jenkins, 46 F.3d at 445-46, 460 (employee had ability to
provide valid consent to search where he was the sole employee
with dominion and control over the property; even if employee did
not have actual authority over employer's property, the
government was entitled to rely on his apparent authority); United States v. Murphy,
506 F.2d 529, 530 (9th Cir. 1974) (where employer put the
premises under the immediate and complete control of employee,
who voluntarily consented to search, the search was not
unreasonable); United States v. Antonelli Fireworks Co.,
53 F. Supp. 870, 874 (W.D.N.Y. 1943) (government agents "had a right to
assume that [the office manager and assistant office manager], by
reason of the nature of their employment, had authority to
consent on behalf of the corporation to an orderly examination of
company records," even where employees did not have express
authority from an officer of employer corporation to consent).
We find that Kirchman had the ability to furnish valid consent
to an inspection of the Water Street Property. Spradlin admits
that Kirchman "had control of" the gym. The undisputed material
facts show that Kirchman was the sole employee present at the
Water Street Property and that he had access to the entire
property.*fn13 These facts indicate that Kirchman had
significant responsibilities relating to the inspected property. Kirchman knew that Kiewlak
was there to perform an inspection, and he willingly escorted her
throughout the building.
Having decided that Kirchman had the ability to furnish valid
consent to the inspection, it must be shown that his consent was
voluntary. Bumper, 391 U.S. at 548-49. The voluntariness of
consent is a question of fact to be determined from the totality
of the circumstances, which include "the setting in which the
consent was obtained, the parties' verbal and non-verbal actions,
and the age, intelligence, and educational background of the
consenting party." Wilson, 413 F.3d at 388 (quotation omitted).
Neither party has addressed the voluntariness of Kirchman's
consent, but the undisputed facts reveal that Kirchman escorted
Kiewlak throughout the property and "showed her what she wanted
to see." (Rec. Doc. No. 92, Ex. D, Kirchman Dep., at 13.) There is no evidence of
record from which a reasonable jury could conclude, after
examining the totality of the circumstances, that Kirchman's
consent was anything but voluntary.
Because Kirchman had the ability to provide valid consent for
Kiewlak to inspect the property, and because he did voluntarily
consent to the inspection, we hold that the search was not
unreasonable and therefore did not violate the Fourth Amendment
to the United States Constitution. Summary judgment will be
granted in favor of all defendants on Count IX of the Amended
Complaint.*fn14 3. Qualified immunity.
The Borough Defendants argue in the alternative that Kiewlak is
entitled to qualified immunity with respect to Spradlin's
Fourth Amendment claim. The doctrine of qualified immunity shields
government officials performing discretionary functions from
liability for civil damages so long as their conduct does not
violate "clearly established constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); Kornegay v. Cottingham, 120 F.3d 392, 395
(3d Cir. 1997). One of the purposes of qualified immunity is "to
spare a defendant not only unwarranted liability but unwarranted
demands customarily imposed upon those defending a long drawn out
lawsuit." Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)
(quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)). "The
entitlement is an immunity from suit rather than a mere defense
to liability . . . and is effectively lost if a case is
erroneously permitted to go to trial." Id. (quoting Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985)).
When the defendant in a Section 1983 action claims qualified
immunity, we must first "assess whether the plaintiff's
allegations are sufficient to establish the violation of a
constitutional or statutory right at all." Id. (citing, e.g.,
Conn v. Gabbert, 526 U.S. 286, 290 (1999)). If the plaintiff
meets that threshold, the court must determine "as a legal
matter, if the right that the defendant's conduct allegedly
violate[d] was a clearly established one, about which a
reasonable person would have known." Id. "The standard for
granting or denying a motion for summary judgment does not change
in the qualified immunity context. Viewing the facts in the light
most favorable to the plaintiff, a court must determine whether
the defendant should prevail as a matter of law." Curley v.
Klem, 298 F.3d 271, 282 (3d Cir. 2002) (quotations and citations
"Qualified immunity turns on the reasonableness of the
[defendant's] belief that their conduct was legal[,] not its
legality per se." Kornegay, 120 F.3d at 395-96. To
determine reasonableness, we inquire "whether a reasonable person
could have believed the defendant's actions to be lawful in light
of clearly established law and the information [s]he possessed."
Id. (quoting Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir.
1996)). "[A]n official who conducts an illegal search may not be
held personally liable if [s]he could have reasonably believed
that the search comported with the Fourth Amendment." Id. (quoting Shea,
966 F.2d at 130).
Firstly, we have determined that the search was not illegal
because the undisputed facts would lead a reasonable factfinder
to the inescapable conclusion that Kiewlak obtained consent prior
to the search. Secondly, we find that Kiewlak is entitled to
qualified immunity because a reasonable person in her position
would believe that the search was conducted pursuant to the
consent exception. Viewing the facts in the light most favorable
to the plaintiff, Kiewlak obtained consent before the search.
Without using any form of coercion or duress, Kiewlak was
escorted throughout the property by an employee of Spradlin's, a
person with access to the entire property and the only person
present in the building at the time. A reasonable factfinder
would necessarily conclude, based on the undisputed facts and the
totality of the circumstances, that Kiewlak's belief in the
legality of the search was reasonable. Kiewlak is therefore
entitled to qualified immunity on this claim.
D. Freedom of Speech and Equal Protection Claims (Count XIII)
Count XIII alleges that the Borough Defendants and Borough
Solicitor Marks denied Spradlin his protected right to free
speech in violation of the First Amendment to the United States
Constitution. Spradlin claims that Marks "intimidated, harassed,
humiliated and prevented Plaintiff from addressing [the Danville
Borough] Council on matters of public concern" and
"relentless[ly] interrupt[ed]" Spradlin during his turn at the podium, because
Marks "did not like the content of Plaintiff's speech." (Rec.
Doc. No. 19, at ¶¶ 234, 237.) Spradlin argues that the Borough
Council "had a duty not to deny Plaintiff his right to be heard."
(Id. at ¶ 240.) Spradlin also alleges a violation of the Equal
Protection Clause, arguing that the defendants treated him
differently than those similarly situated, by "not allow[ing]
Plaintiff to speak as others had" at the Danville Borough Council
meeting on December 9, 2002.
The Equal Protection claim survived the defendants' motion to
dismiss as "a bare bones" allegation, and the First Amendment
claim survived because Spradlin set forth the conduct of
defendants that allegedly violated his rights, `as well as the
time, the place and the persons responsible." (Rec. Doc. No. 34,
at 20) (quoting Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D.
Pa. 1992)). All defendants have now moved for summary judgment on
The Danville Borough Council met for a regularly scheduled
meeting on December 9, 2002. Mr. Spradlin attended this meeting
and addressed the Borough Council without hindrance or interruption for several minutes
regarding a school crossing zone. Spradlin also announced that he
had filed a lawsuit in federal court that morning naming eleven
defendants, including the Borough Council. Spradlin informed the
Council that he had not yet served the lawsuit, and that he
desired to meet with the Borough Council before proceeding with
At that point, Robert Marks, Danville Borough Solicitor,
interrupted Spradlin and vociferously objected to any discussion
of the lawsuit. Marks told Spradlin to have his attorney contact
Marks and provide him with a copy of the complaint. Spradlin
continued his attempt at addressing the Council and repeated his
request to meet regarding the lawsuit. Spradlin's attempts to
address the Borough Council were repeatedly interrupted by the
interjections of Marks, but Collins Stump, President of the
Danville Borough Council, invited Spradlin to summarize his
position. When asked to do so, Spradlin stated: "If the Council
wishes, I would be more than willing to meet before going forward
that's all I had to say." After an additional exchange of words
with Marks, Spradlin left the Council meeting. The meeting was
videotaped, and the parties agree that a close review of the
videotape is warranted.
All defendants argue that Spradlin's First Amendment claim must
fail because he said, in his own words, "all [he] had to say" at the
Council meeting. The Borough Defendants argue that the Council
"provided Plaintiff with the opportunity to say what he wished to
say: that he was willing to meet and discuss the suit prior to
serving it on the named Defendants." (Rec. Doc. No. 91, at 27.)
The argument continues that because Spradlin unambiguously stated
that he had communicated all that he desired to communicate, his
right to free speech could not have been infringed. Spradlin does
not directly respond to this argument in his opposition to either
motion for summary judgment, and instead argues that Solicitor
Marks took control of the meeting and interrupted Spradlin while
he was speaking.
While the defendants' argument on this point is inviting, we
believe it is too superficial a ground, standing alone, upon
which to grant summary judgment. Rather, a more in-depth analysis
of First Amendment jurisprudence is necessary before deciding the
The power of the government to prevent or limit speech on
public property is carefully circumscribed by the First Amendment
to the United States Constitution. Eichenlaub, 385 F.3d at 279.
The Supreme Court has adopted a forum analysis to determine the
extent to which the government may limit speech. See, e.g.,
Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788,
797 (1985). Government facilities not committed to public
expression may regulate speech by the public so long as the regulation is reasonable and
content neutral. See Eichenlaub, 285 F.3d at 279. Speech may
be limited only narrowly in public forums open to general
"assembly and debate" as a matter of tradition or governmental
designation. Id. at 280 (citations omitted). Traditional public
forums include streets and public parks. Id. A third type of
public setting a limited public forum is "a forum created by
the government that is limited to certain groups or to discussion
of certain topics." Id.
The Danville Borough Council meeting was a limited public
forum. Like the citizen's forum portion of the Township Board of
Supervisors meeting the Third Circuit held to be a limited public
forum in Eichenlaub, 385 F.3d at 281, the Borough Council
meeting was designed to be limited to matters pertaining to town
government. The meeting was not a traditional public forum, such
as a street or public park. "One would certainly not expect the
forum of a [Borough] meeting to include such expressive
activities as performance art, lectures on medieval history, or
arguments about private disputes involving town citizens." Id.
"Plainly, public bodies may confine their meetings to specified
subject matter. . . ." Id. (quoting City of Madison Joint Sch.
Dist. v. Wis. Employment Relations Comm'n, 429 U.S. 167, 175 n.
8 (1976)). Thus, matters presented at a Borough Council meeting
"may be limited to issues germane to town government." Id. Such a restriction would be permissible at this Borough Council
meeting because in a limited public forum, "content-based
restraints are permitted, so long as they are designed to confine
the `forum to the limited and legitimate purposes for which it
was created.'" Id. at 280 (quoting Rosenberger v. Rector &
Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).
When Spradlin was interrupted by Marks, he was discussing a
private lawsuit between himself, the Borough Council, and a
number of other defendants. Although Spradlin claims in his
Amended Complaint that he "believes he was providing information
which was of a public concern. . . . [because] if Plaintiff was
[sic] the prevailing party in the law suit [sic], the cost could
potentially be born [sic] by the local tax payers [sic]" (Rec.
Doc. No. 19, at ¶¶ 235-36), the Borough was justified in its
determination not to discuss the suit at the Council meeting.
Although the interjections of Marks may have been aggressive,
they were permissible in order to "confine the forum to the
limited and legitimate purposes for which it was created": the
discussion of issues germane to town government. Eichenlaub,
385 F.3d at 280 (citations and quotations omitted). It is also
noteworthy that no member of the Borough Council, nor the Borough
Solicitors, had seen a copy of the lawsuit at the time Spradlin
addressed the Council.
After careful consideration of the record and the undisputed
material facts, construing all ambiguities in favor of Spradlin, we will grant
summary judgment to all defendants on the First Amendment claim.
The Council was justified in its determination not to discuss a
private lawsuit that it had not yet seen at the Council Meeting.
Furthermore, Spradlin himself stated at the meeting that he had
said all he wanted to say that he was willing to meet with the
Council before proceeding with the lawsuit. Thus, although the
behavior of Marks at the meeting may have been aggressive, it did
not violate Spradlin's rights under the First Amendment.
Spradlin has also maintained a claim for Equal Protection under
this count. Neither party has identified any part of the record
pertaining to this claim. Spradlin argues that he "was in fact
denied his first amendment right and was treated differently than
others." (Rec. Doc. No. 107, at 29.) The Equal Protection claim
is inextricably tied to the First Amendment claim: Spradlin
argues that he was treated differently than others because he was
denied his First Amendment right to free speech. Because we find
that there was no First Amendment violation, the Equal Protection
claim fails as well.
E. Tortious Interference with Contract Claim (Count X) and
Malicious Prosecution Claim (Count XI)
In Count X of his amended complaint, Spradlin alleges the
Danville Borough Solicitors "interfered with Plaintiff's
contractual relations with the Danville Borough Tax Collector, and denied Plaintiff his contractual and economic
bargain." In Count XI of his amended complaint, Spradlin has
lodged a malicious prosecution claim against all defendants. Both
of these claims rely entirely upon Pennsylvania state law.
Because we have granted summary judgment on all claims over which
we had original jurisdiction, we decline to exercise our power of
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3).
III. THE BOROUGH DEFENDANTS' MOTION TO STRIKE
The Borough Defendants have also filed a motion to strike
portions of the plaintiff's counterstatement of facts. While the
court acknowledges that certain portions of the plaintiff's
counterstatement fail to comply with Local Rule 56.1, we are also
cognizant that the plaintiff is pro se. This motion will be
denied as moot. ORDER
For the reasons set forth in the accompanying memorandum, IT IS
1. All claims against the Danville Borough Council
are DISMISSED as redundant of those claims against
the Borough of Danville;
2. The motion for summary judgment filed by the
Borough of Danville, the Danville Borough Council,
and Codes and Zoning Enforcement Official Jeanne
Kiewlak is GRANTED on all counts (Rec. Doc. No. 89);
3. The motion for summary judgment filed by Solicitor
Defendants Robert Marks and Michael Dennehy is
GRANTED on all counts (Rec. Doc. No. 93); 4. The Borough Defendants' motion to strike portions
of the plaintiff's counterstatement of facts is
DENIED as moot (Rec. Doc. No. 122);
5. The clerk is directed to enter final judgment in
favor of defendants Borough of Danville, Codes and
Zoning Enforcement Officer Jeanne Kiewlak and
Danville Borough Solicitors Robert Marks and Michael
6. The clerk is directed to close the case file.
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