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Koynok v. Lloyd

March 5, 2010

GEORGE L. KOYNOK, PLAINTIFF,
v.
THOMAS R. LLOYD, MAYOR OF DORMONT BOROUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, JOSEPH M. COSTANZO, FORMER PRESIDENT OF DORMONT BOROUGH COUNCIL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, KRISTEN DENNE, FORMER ASSISTANT MANAGER OF DORMONT BOROUGH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, THOMAS H. AYOOB, III, SOLICITOR OF DORMONT BOROUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, PATRICK KELLY, BUILDING INSPECTOR/CODE ENFORCEMENT OFFICER, INDIVIDUALLY AND IN HIS CAPACITY, RUSSELL J. MCKIBBEN, FORMER INTERIM BOROUGH MANAGER AND POLICE CHIEF OF DORMONT BOROUGH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DORMONT BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion

I. Introduction/Procedural History

Plaintiff, who is proceeding pro se,*fn1 and owns property in Dormont Borough, Pittsburgh, Pennsylvania, sought a variance in 2003 that he might use his property (a single family home) as a boardinghouse. After the variance was denied, plaintiff pursued an appeal of the Zoning Hearing Board decision in the Allegheny Court of Common Pleas, who affirmed the decision and dismissed the appeal. No further appeal was commenced by plaintiff on the 2003 variance. Then, in 2005, plaintiff again applied to the Zoning Hearing Board for a "special exception" to use this same property as a boardinghouse, which was again denied both by the Zoning Hearing Board, and on appeal to the Court of Common Pleas of Allegheny County. This time, plaintiff sought review in the Pennsylvania Commonwealth Court, and the Court ultimately agreed with the Zoning Hearing Board and affirmed its decision in September 2007.

Meanwhile, in September 2006, plaintiff brought the instant civil action under 42 U.S.C. §§ 1983 and 1985(3) against Dormont Borough and various employees in their individual and official capacities, seeking injunctive relief and damages for alleged violations of his constitutional rights.

In the prior proceedings before this Court, defendants filed its first motion to dismiss the case under Fed. R. Civ. P. 12(b)(6), and the Court, ultimately abstained and stayed the action under Younger v. Harris, 401 U.S. 37 (1971) and its progeny, and denied the motion to dismiss without prejudice to re-filing the motion at the conclusion of the state court proceedings.

Then, in August 2008, after the Pennsylvania Supreme Court denied plaintiff's allowance to appeal the Commonwealth Court's decision, defendants moved to re-open this civil action, which the Court granted. Defendants filed a new motion to dismiss, and this Court ultimately applied the Rooker-Feldman doctrine and dismissed this case for lack of subject matter jurisdiction. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) This Court found, inter alia, that the instant action is nothing more than a spin-off of the state court proceedings, and denied the motion to dismiss as moot. Plaintiff appealed and the United States Court of Appeals for the Third Circuit issued an opinion on June 18, 2009 (doc. no. 44-2) finding that Rooker-Feldman did not apply to the recent state court proceedings, and stated that the Court should review the entire record of the earlier state court proceedings to determine whether Rooker-Feldman was applicable.

Upon remand, the Court ordered the parties to file a complete record of the "earlier" state court proceedings. On July 27, 2009, the Court conducted an Initial Case Management Conference and set forth a Case Management Order as well as a Pretrial Order (doc. nos. 61, 62). On the same day as the Initial Case Management Conference, plaintiff then filed a motion to amend his complaint, which this Court granted on July 28, 2009.

Plaintiff's amended complaint sets forth claims for alleged violations of plaintiff's constitutional rights to equal protection, and procedural and substantive due process (plaintiff dismissed his Eighth Amendment claims in his amended complaint) (doc. no. 65). Consistent with the discussion at the Initial Case Management Conference, the parties then submitted a complete record of the state court proceedings (doc. no. 68). On August 17, 2009, defendants filed a motion for judgment on the pleadings (doc. no. 72), and, after full briefing on the issue, on September 11, 2009, the Court denied said motion (doc. no. 80), thereby affording plaintiff the opportunity to develop the record through the discovery process, without prejudice to defendants raising the issues set forth therein in a motion for summary judgment.

Currently pending before this Court are the parties motions for summary judgment (doc. nos. 88 and 99) with supporting documentation. For the reasons set forth below, defendants' motion for summary judgment (doc. no. 99) will be GRANTED, and plaintiff's motion for summary judgment (doc. no. 88) will be DENIED.

II. Background Facts

The parties have filed dueling motions for summary judgment with differing versions of alleged undisputed material facts, and pro se plaintiff has failed to set forth his undisputed material facts in a manner consistent with this Court's practices and procedures. Furthermore, plaintiff has not fully admitted one factual allegation submitted by defendants (doc. no. 107), and instead has moved to strike approximately 11 out of 18 of defendants' statement of undisputed material facts (doc. no. 109), which will be DENIED. The Court finds that the vast majority of plaintiff's alleged denials are unresponsive to the factual allegations set forth by defendants (see doc. no. 107). Nonetheless, the Court has attempted to parse the factual history (including the record of the state court proceedings at doc. no. 68), and has fairly set forth the following material factual history in the light most favorable to the non-moving party.

1. Plaintiff initiated the instant action alleging violations of his civil and constitutional rights in connection with the use of his property at 2850 Glenmore Avenue, Pittsburgh, Pennsylvania, as a boarding/rooming house.

2. In 1962, the Pennsylvania Department of Labor and Industry approved Koynok's dwelling as a special occupancy boarding house and school, and issued him an occupancy permit for such use.

3. Plaintiff alleges that in 1991, he decided to sell said dwelling to buyers who wanted to continue the school use.

4. Plaintiff applied for and received a single occupancy permit for his 2850 Glenmore Avenue property on October 4, 1991. Plaintiff currently resides on the first floor of the property and makes three (3) other units available for rent.

5. Plaintiff alleges that he was told by Borough of Dormont Official (Deborah Glass) that a sale and change of owners would abrogate any rights and privileges granted specifically to Koynok.

6. In 1995, the Borough, through the Dormont Borough Zoning Code, changed the R-4 district to the current R-2 zone where single and double family residences may be erected by right.

7. Therefore, commercial uses of property located in the R-2 zoning district were forbidden.

8. Section 210-21A of the Dormont Borough Zoning Hearing Board permits the following uses in an R-2 District: single family dwellings, two family dwellings, legally existing and of record at the time the chapter was adopted, new construction of two family dwelling on vacant lots, and essential services.

9. Plaintiff submits his own affidavit stating that single-family residences were openly conducting commercial businesses, but fails to attach any record support for his statement.

10. In 2003, Borough Agent Patrick Kelly, a building inspector, after conducting an investigation, reported that Koynok was renting four (4) apartments contrary to the Borough ordinance for which he was subject to criminal penalties.

11. According to plaintiff, three (3) units were not apartments, because they did not contain kitchens, and two (2) had no self-contained bathrooms, and ...


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