The opinion of the court was delivered by: Magistrate Judge Smyser
The complaint in this case was filed on December 26, 2007. The plaintiffs are Chere Farrell and Keith Rivens. They are the owners and the residents of a townhouse property in the Ashcombe Dover Development, a residential community in Dover, York County, Pennsylvania. The defendant is the Ashcombe Dover Homeowners Association.
The complaint alleges that the plaintiff Chere Farrell is an African American female and that the plaintiff Keith Rivens is an African American male. The complaint alleges that the plaintiffs are "handicapped as defined by the Americans With Disabilities Act." The complaint alleges that the plaintiffs have been subjected to unlawful discrimination by the defendant on the basis of the plaintiffs' race and on the basis of the plaintiffs' disabilities.
The plaintiffs purchased a townhouse in 2003 in the Ashcombe Dover Development in Dover Borough, York County, Pennsylvania, in the Middle District of Pennsylvania. Certain homeowner practices, and certain homes and properties maintenance requirements and standards and limitations affecting home and property modifications, were governed under rules and regulations of the defendant Homeowners Association, the complaint relates.
The complaint avers that plaintiff Farrell has debilitating rheumatoid arthritis, respiratory illness and back problems and that her physical disability is visibly noticeable. It is avered that plaintiff Rivens has debilitating rheumatoritis and back problems. He walks with the assistance of a cane. He has a pronounced limp. Both plaintiffs have been determined by the Social Security Administration to be disabled and unable to perform substantial gainful activity. The complaint alleges that the "Defendants"*fn1 were aware of the plaintiffs' disabilities. The complaint alleges that the plaintiffs have extreme difficulty getting around when there is snow or ice on the ground, and that the "Defendants claim to have a policy not to remove snow until it reaches an accumulation on the ground of three inches." In the winter of 2005-2006, the plaintiffs requested in writing to the "Defendants" to increase the frequency of snow removal around the plaintiffs' residence. The "Defendants" arbitrarily refused to accommodate the plaintiffs, it is alleged. The complaint alleges that the "Defendants" denied a housing accommodation to the plaintiffs because of their disabilities.
The complaint alleges that each of the plaintiffs was subjected to racially abusive behavior from the plaintiffs' neighbors in the development. 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.'" The complaint alleges that "on the advice of Defendant, Defendant's attorney and the local police, Plaintiffs posted "No Trespassing" signs on their property", that the signs were posted to keep the defendant's contractors from trespassing on the plaintiffs' property (because the contractor's employee had damaged the plaintiffs' property and had subjected them to racial slurs), and that the "Defendants" had, after the signs were posted, fined the plaintiffs for posting the "No Trespassing" signs. The "Defendants" also threatened the plaintiffs with "fines for outdoor storage issues" but took no steps against white residents similarly situated "regarding their outdoor storage issues". The "Defendants threatened Plaintiffs with fines for having a flower border, but did not require similarly situated white families to remove their flower borders." It alleges that each plaintiff is disabled within the meaning of the Social Security Act, that the defendant was aware of the plaintiffs' disabilities 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 an accommodation to their disabilities in the form of the institution of a practice of snow removal of accumulations of less than three inches, was a denial of an accommodation that was reasonably requested "because of [the plaintiffs'] disabilities."
Count I of the complaint is the plaintiffs' claim of unlawful discrimination under the American with Disabilities Act. The plaintiffs have withdrawn this claim. It will not be further addressed herein.
Count II of the complaint states a claim of unlawful racial discrimination under the Fair Housing Act. This count is based upon 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 had 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."
Count III states a claim of retaliation against the plaintiffs by the defendant. The claim is, factually, 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.
A second Count III states a claim under Pennsylvania law for the intentional infliction of emotional distress.
Counts IV and V were dismissed by the Order of July 1, 2008.
There is a claim in the complaint for punitive damages.
The defendant filed a motion for summary judgment, after the completion of discovery, on January 23, 2009. (Doc. 56). A brief in support, supporting Rule 56 documentation and a LR 56.1 statement of the material facts that the moving party contends not to be in dispute for Rule 56 purposes were filed. The plaintiff filed a brief in opposition, a responsive LR 56.1 statement for the plaintiffs, and exhibits, on February 27, 2009. (Docs. 63, 64, 67).
Summary judgment is appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge that burden by "'showing'--- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e).
An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A material factual dispute is a dispute as to a factual issue that will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
"[T]he plain language of Rule 56(c) 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, supra, 477 U.S. at 322. "Under such circumstances, 'there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Anderson v. CONRAIL, 297 F.3d 242, 247 (3d Cir. 2002)(quoting Celotex, supra, 477 U.S. at 323).
The defendant's summary judgment motion argues that, with discovery completed, there is not a genuine factual dispute as to a material factual issue and that the defendant is entitled to judgment upon the remaining claims as a matter of law.
The plaintiffs' brief in opposition to the defendant's motion for summary judgment argues that the plaintiffs have established a case of racial discrimination under the Fair Housing Act, that the plaintiffs have established a prima facie case for retaliation under the Fair Housing Act, and that the plaintiffs have established a case for intentional infliction of emotional distress.
The plaintiffs have withdrawn their claim (Count I) of discrimination based upon their disabilities. (Doc. 63, page 7).
Count II. Unlawful Racial Discrimination
The plaintiffs' brief in opposition to the defendant's motion for summary judgment (Doc. 63) states that the plaintiffs' claim of racial discrimination under the Fair Housing Act is based upon discrimination by the defendant against the plaintiffs because of the plaintiffs' race in terms of ...