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Lease v. Tyler

June 30, 2008


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are motions for summary judgment filed by Defendants Kevin Tyler (Doc. No. 65), Douglas Fishel (Doc. No. 60), Ronald Plank, and Adams Electric Cooperative (Doc. No. 61). The motions have been briefed (Doc. Nos. 62, 66-67, 73, 75-76) and are ripe for disposition. In their motions, Defendants assert that Plaintiff David Lease has presented insufficient evidence of a deprivation of constitutional rights. For the reasons that follow, the Court agrees and will grant the motions for summary judgment.


Plaintiff David Lease initiated this civil action by filing a complaint in this Court on March 28, 2005. (Doc. No. 1.) On May 5, 2005, Plaintiff filed his first amended complaint, in which he alleged that Defendants conducted an unlawful search of his property in March 2004 in violation of his Fourth and First Amendment rights. (Doc. No. 6.) Specifically, Lease contends that on March 17, 2004, Defendants improperly entered onto his property, "removed the face of and otherwise damaged meters belonging to the plaintiff which were on his property," and otherwise engaged in a "fishing expedition . . . [to] carr[y] out the retaliatory interests of Hamilton Township." (Id. ¶ 14-15.) Hamilton Township's alleged desire to retaliate against Lease stems from a long-standing dispute between the two that includes, inter alia, lawsuits filed in 1996, 1999, and 2000. (Id. ¶ 16); (Doc. No. 63, ¶¶ 110-12) (hereinafter "statement of material facts" or "SMF"); (Doc. No. 72, ¶¶ 110-12) (hereinafter "counter-statement of material facts" or "CSMF").

The Apartment Building and Its Meters*fn1

Plaintiff David Lease is a gentleman in his sixties who owns certain property in New Oxford, Adams County, Pennsylvania, including the six-unit apartment building located at 160 Gun Club Road that is the site of the alleged constitutional violations in this case. (SMF ¶¶ 1, 9, 11.)

The apartments at 160 Gun Club Road receive electricity from Defendant Adams Electric Cooperative, of which Lease is a member. (SMF ¶ 16.) As a member, Lease is "bound by the Cooperative's articles of Incorporation, Bylaws, policies, rules and regulations," and as a condition of his membership in the cooperative, Lease agreed that Adams Electric would have an "easement for the inspection, construction, operation, repair, maintenance, relocation and removal of electric distribution lines, meters, or other facilities to serve the Applicant's premises." (SMF ¶¶ 17-19.)

In the mid-1990's, Adams Electric installed a single meter on a pole on Gun Club Road to monitor the total use of electricity for the apartment building. (SMF ¶ 21.) Previously, the electricity consumption for the apartments had been measured by several individual meters in a meter base adjacent to the apartment building. (Id.) After Adams Electric installed the street-side meter, meters had remained in the meter base adjacent to the building, allowing Lease to track the electricity usage per apartment, until sometime around 2001, when Adams Electric removed those meters, "plugged all of the meters with bars," and sealed the openings where the meters had been with "pie plate" covers.*fn2 (Doc. No. 74-5, Lease Aff. ¶ 4.) Even in the absence of the meters, electrical current continued to flow through the meter base to the apartments. (Id.)

Events Leading up to the March 17, 2004, Visit to Lease's Property

Beginning in the summer of 2003, Defendant Kevin Tyler served as a Zoning and Code Enforcement Officer for Hamilton Township. (SMF ¶ 2; Doc. No. 64-2, Tyler Dep. 8). In this capacity, he received numerous complaints-Tyler estimated the number to be over a hundred-from township residents about Lease's property. (SMF ¶ 28.) Many of the complaints concerned sewage and runoff from the property and excessive smoke believed to be coming from an incinerator operated on the property. (SMF ¶ 29.) Because of the significant number of complaints and his uncertainty how to handle the situation as a relatively new code enforcement officer, Tyler sought guidance from the Adams County District Attorney's Office. (SMF ¶¶ 32-35.) On his own initiative, Tyler discussed the situation with Assistant District Attorney Brian Coffey and expressed concern about how he was to "specifically write" the proper citations. (SMF ¶¶ 36-38.)

Following a public meeting during which residents complained about the property (SMF ¶ 42), Coffey asked to view the property to better understand the situation (SMF ¶ 39), and Tyler agreed to drive him there (SMF ¶ 40). Coffey suggested that Defendant Douglas Fishel, an Abbottstown-Hamilton Township police officer, accompany them. (SMF ¶¶ 3, 41.) The township's chief of police instructed Fishel to ride with the two gentlemen to Lease's apartment building to provide security while Tyler and Coffey spoke to Lease and/or local residents about the complaints. (SMF ¶¶ 43-44.)

March 17, 2004, Visit to Lease's Property

On March 17, 2004, the three men traveled to Lease's apartment building at 160 Gun Club Road, and pulled into a large parking lot in front of the building used by the tenants and their guests. (SMF ¶¶ 46, 50.) Tyler drove to a location near where Lease was standing outside, the men spoke briefly, and then Tyler began to drive away from the property. (SMF ¶¶ 50-51.)

When they were on the main road near the property, Tyler observed electrical wires sticking up through the apartment building's roof (SMF ¶ 46, 50), and the three men returned to the apartment to check out the situation (SMF ¶¶ 55-56). Tyler pulled into the large parking lot in front of the apartment building for a second time. (SMF ¶ 56.) Tyler and Fishel alighted from the vehicle and walked toward the side common entrance to the apartment building. (SMF ¶¶ 56-58.) From his vantage point outside of the apartments, Lease saw Tyler, Fishel, and Coffey return to the property, and he watched as they walked toward the side entrance of the building. (SMF ¶¶ 91-93.) Lease voiced no objections to their presence at this time. (SMF ¶ 98.)

As Fishel approached the side entrance and alcove to the building, he looked to his right and observed the meter base for the apartment units. (SMF ¶ 58.) Defendants describe the meter base adjacent the apartment building as being housed in a recessed area that was open to their view (SMF ¶ 57); Lease, on the other hand, describes the meter base as being inside a fully enclosed room with a door (CSMF ¶ 57) containing transparent glass panes through which the inside of the room, including the meter base, is visible (id.); (see Doc. No. 74-3, Zamboni Dep. 75-76, 106-109); (see also Lease Aff. ¶ 5). Lease further testified in his deposition that the door to the "meter room" may have been locked, may have been unlocked, or may have even been open. (SMF ¶¶ 108-09.) Lease admits that he did not see either man open the door, and he acknowledges that he is not claiming that the men broke into the room. (SMF ¶¶ 106-07.)

Fishel observed that one of the pie plate covers was missing and electrical components within the meter base were exposed to the air (SMF ¶ 60), and Tyler noticed that some of the seals on the pie plate covers had been broken (SMF ¶ 59).*fn3 From where he stood viewing the Defendants' actions, Lease observed Fishel and Tyler enter the meter room, and purportedly viewed Fishel remove the cover from a meter base and place it on the floor. (SMF ¶¶ 94-95.) Lease admits, however, that he has no evidence to contradict Fishel's testimony that before he entered the area where the meter bases were located, Fishel saw what he believed to be a dangerous condition. (SMF ¶ 102.)

Concerned about the potential safety hazard posed by the improperly sealed meter base and exposed electrical components (SMF ¶¶ 61, 64), Tyler, Fishel, and Coffey left the apartment building and spoke to an electrical lineman Fishel had observed working further along the road and asked him to return to the property with them and make sure the situation was safe (SMF ¶¶ 65-66).*fn4

At some point Lease approached Tyler and Fishel to inquire about their presence on his property. (SMF ¶ 100.) Fishel advised Lease of the perceived problem with the meter base and pie plate covers and explained that the electric company would be arriving to make sure it was safe. (SMF ¶ 101.) Lease testified in his deposition that ...

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