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Leary v. Ruscavage

August 11, 2009


The opinion of the court was delivered by: Judge Munley


Magistrate Judge Mannion

Before the court are plaintiff's objections to the report and recommendation of Magistrate Judge Malachy E. Mannion, which proposes that the court grant in part and deny in part defendants' motion to dismiss the plaintiff's complaint. Having been briefed, the matter is ripe for disposition.


This case arises out of plaintiff's attempts to operate a hair-styling business in Defendant Swoyersville Borough, Pennsylvania. The plaintiff's parents, Joseph and Deborah Leary, purchased the property in question in July 1999. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 12). The property is presently improved with a beauty salon, Jade Salon & Co., operated by the plaintiff. (Id. at ¶ 13). Before plaintiff began using the property, it was occupied and used as a floral shop and greenhouse. (Id. at ¶ 14). This commercial use of the property was never abandoned after plaintiff's parents purchased the floral shop. (Id. at ¶ 15). Joseph Leary used the property to benefit his construction company after he purchased it. (Id. at ¶ 16). The Borough's zoning regulations acknowledge that the property is a "pre-existing, non-conforming... commercial retail outlet." (Id. at ¶ 17).

Joseph Leary received a permit from Swoyersville Borough in August 1999 for the purpose of construction and improvement of the property as a beauty salon. (Id. at ¶ 18). He received another such permit in October 1999. (Id. at ¶ 19). Leary received similar permits in June 2000, October 2002 and September 2003. (Id. at ¶¶ 20-22). Any improvements to the property were executed pursuant to these permits. (Id. at ¶ 23). Joseph Leary spent more than $50,000 improving the property. (Id. at ¶ 24).

Plaintiff operated her hair-salon business without objection from the Borough or its officials for approximately six months. (Id. at ¶ 25). On April 4, 2004, Defendant Jospen Ruscavage was appointed as Zoning Officer in the Borough, even though he had no training or knowledge of the Swoyersville zoning regulations. (Id. at ¶ 26). Ruscavage had never undertaken an enforcement proceeding before he instituted an action against plaintiff. (Id. ¶ at 27). On August 29, 2007, Ruscavage saw an advertisement for plaintiff's salon in the Citizen's Voice, a local newspaper. (Id. at ¶ 28). He sent plaintiff correspondence, directing her to "'cease and desist'" operations of her business, even though she is not the owner of the property. (Id. at ¶¶ 28-29). Ruscavage instituted these proceedings, even though he knew that Joseph Leary had obtained building permits for the salon and that the salon business had been in operation for six months before he brought the action. (Id. at ¶ 30). Plaintiff alleges that this enforcement notice is in violation of the Pennsylvania Muncipalities Code, 53 P.S. § 10616.1(b), since it was not sent to the owner of the building and did not state the name of the owner of record. (Id. at ¶¶ 31-32). Plaintiff further alleges that this notice violated Pennsylvania law because it did not state a specific violation, did not describe which provisions of the zoning ordinance had been violated, failed to provide a date by which the alleged violations must be rectified, and did not inform plaintiff that she had a right to appeal. (Id. at ¶¶ 33-36).

Plaintiff appealed this enforcement notice to Defendant Swoyersville Borough Zoning Board on September 21, 2007. (Id. at ¶ 37). The Board held a hearing on October 18, 2007. (Id. at ¶ 38). According to plaintiff, the burden of providing evidence of violations at this hearing lay with Defendant Ruscavage. (Id.). At this hearing, all of the violations Ruscavage alleged were placed on the record, as were the permits the Borough had issued to plaintiff's father during the construction of her salon. (Id. at ¶¶ 39-40). Testimony at the hearing also established that construction of the salon had cost more than $50,000. (Id. at ¶ 41). Testimony likewise demonstrated that the property had established status as a registered, pre-existing non-conforming use as a floral shop and greenhouse, construction company and salon continuously for years preceding the enforcement action. (Id. at ¶ 42). No complaints had been received about the salon business before Ruscavage took action. (Id. at ¶ 43). The commercial use of the property had been abandoned or made more restrictive during the period since Leary's father purchased it. (Id. at ¶ 44). Testimony at the hearing established that members of the Zoning Hearing Board had communicated with Ruscavage, even though they were tasked with serving as unbiased adjudicators for the enforcement proceeding. (Id. at ¶ 45).

Ruscavage testified at the hearing that he had consulted with Frank J. Aritz, solicitor for the Zoning Hearing Board, when he drafted the enforcement notice. (Id. at ¶ 46). Plaintiff contends that this consultation violated Pennsylvania law. (Id.). Further, Aritz conducted the direct examination of Ruscavage at the hearing and simultaneously made objections to cross-examination and ruled on those objections. (Id, at ¶¶ 48-49). Plaintiff contends that the board also followed improper procedure by forcing her to present her case first. (Id. at ¶ 50). Other evidence at the hearing revealed that the previous zoning officer had confirmed that plaintiff's father possessed all necessary permits for the property. (Id. at ¶ 51). At the conclusion of the hearing the Zoning Hearing Board adjourned without voting or rendering a decision. (Id. at ¶ 52).

Following this hearing, Aritz wrote to plaintiff's attorney requesting additional documentation, including Joseph Leary's business license and plaintiff's "cosmetology license." (Id. at ¶ 53). Aritz threatened to issue a formal subpoena if plaintiff did not provide these documents. (Id. at ¶ 54). The correspondence indicated that this demand had been made by the Chairman of the Zoning Hearing Board, Defendant Nenichka, after the close of the hearing. (Id. at ¶ 55). The Board reconvened on December 19, 2007 and issued a public decision that supported the original enforcement notice. (Id. at ¶ 58).

Plaintiff filed the instant complaint on September 17, 2007. Brought pursuant to 42 U.S.C. § 1983, the complaint alleges that defendants violated plaintiff's rights pursuant to the Fourteenth Amendment of the United States Constitution in a variety of ways.*fn1 Plaintiff alleges that the defendants violated her substantive and procedural due process rights in bringing the enforcement action against her. (Id. at § 57). Moreover, she contends that the Zoning Hearing Board acted in an arbitrary and capricious manner that shocked the conscience in affirming the enforcement notice. (Id. at § 59).

After service of the complaint, defendants filed a motion to dismiss. (Doc. 15). The parties briefed that motion, and Magistrate Judge Mannion issued a report and recommendation that proposed dismissing some of the plaintiff's complaint and allowing other portions to go forward. Magistrate Judge Mannion found that defendants' motion to dismiss plaintiff's claim for punitive damages against the municipality was moot, since plaintiff's seeks punitive damages only against the individual defendants. He also concluded that quasi-judicial immunity protected the members of the zoning hearing board from suit for their actions in deciding plaintiff's appeal, but found that such immunity did not apply to actions allegedly taken by Board members outside the context of that decision. Magistrate Judge Mannion further found that plaintiff's procedural due process claim should be dismissed, but that plaintiff had alleged facts sufficient to support a substantive due process claim. Plaintiff filed objections to the report and recommendation. The parties briefed the issue, bringing the case to its present posture.


Because the plaintiff brings this complaint pursuant to 42 U.S.C. § 1983, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under ...

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