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Farrell v. Ashcombe Dover Homeowners Association

July 1, 2008

CHERE FARRELL AND KEITH RIVENS, PLAINTIFFS
v.
ASHCOMBE DOVER HOMEOWNERS ASSOCIATION, DEFENDANT



The opinion of the court was delivered by: Magistrate Judge Smyser

MEMORANDUM AND ORDER

The complaint in this case was filed on December 26, 2007. The plaintiffs are Chere Farrell and Keith Rivens, the owners and residents of a townhouse property in the Ashcombe Dover Development, a residential community in Dover, York County, Pennsylvania. The defendant is the Aschombe Dover Homeowner's Association.

The defendant filed a motion to dismiss the complaint (Doc. 12) on April 24, 2008. A brief in support (Doc. 13) was filed on April 24, 2008. A brief in opposition was filed on May 12, 2008.

The motion to dismiss the complaint involved in part a contention by the defendant that proper service upon it had not been made. That contention has been withdrawn by the defendant (Doc. 25, filed June 12, 2008) and will not be further addressed.

The complaint alleges that the plaintiffs are "handicapped as defined by the Americans With Disabilities Act."*fn1

The complaint alleges that each of the plaintiffs is an African American. The complaint alleges that upon the plaintiffs' purchase of a residence, a member of the Board of Directors "stated to another neighbor, '[t]here goes the neighborhood, [t]hat nigger don't work so he must be a drug dealer, [w]e don't want them here and will do whatever it takes to run them out of here, and we are going to do everything to make them miserable and make them leave.'" It alleges that each plaintiff is disabled within the meaning of the Social Security Act, that the defendant*fn2 was aware of the plaintiffs' disability and that the defendant refused a request of the plaintiffs to remove snow accumulations of less than three inches. The complaint alleges that the refusal of the defendant to remove snow accumulations of less than three inches for the plaintiffs, who had requested the accommodation of snow removal of accumulations of less than three inches, was a denial "because of [the plaintiffs'] disabilities."

Count I of the complaint is titled as a claim of unlawful discrimination under the American with Disabilities Act. The claim stated in Count 1 is that the defendant's failure or refusal to remove snow more frequently for the plaintiffs is a violation of the plaintiffs' rights under

Section 5(h) of the Pennsylvania Human Relations Act 43 P.S. 951-963., Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000(e) and following, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1983, the Fair Housing Act of 1988, 42 U.S.C. § 3601-3619 and the American With Disability Act, 42 U.S.C. 12101-2213 and following. (Doc. 1, page 6).

The defendant has not sought the dismissal of Count I.

Count II states a claim of unlawful racial discrimination. It contains factual allegations that the plaintiffs posted "No Trespassing" signs on their property on the advice of the defendant, the defendant's attorney and the local police, for the purpose of keeping the defendant's contractors from trespassing on the plaintiffs' property after an employee of the contractor had damaged the plaintiffs' property and had used racial slurs. Then the defendant fined the plaintiffs for posting the "No Trespassing" signs. Other factual allegations supporting the racial discrimination claim are that the plaintiffs were treated differently from white residents by the defendant in threatening the plaintiffs with a fine "for outside storage issues" and "for having a flower border."

The defendant has not sought the dismissal of Count II.

Count III states a claim of retaliation against the plaintiffs by the defendant in that after the plaintiffs filed a Pennsylvania Human Relations Commission formal complaint the defendant attempted to force the plaintiffs to pay unwarranted fines and costs and attempted to force the plaintiffs to sell their home.

The defendant does not move for the dismissal of the retaliation count.

The remaining three counts state claims for the intentional infliction of emotion distress, for fraud, misrepresentation and deceit and for breach of contract. The defendant seeks the dismissal of these claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The complaint seeks ...


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