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Tomino v. City of Bethlehem

March 31, 2010


The opinion of the court was delivered by: James Knoll Gardner, United States District Judge


This matter is before the court on Defendants, City of Bethlehem and John R. Lezoche's Partial Motion to Dismiss Plaintiff's Complaint, which motion was filed together with a memorandum of law in support on March 5, 2009. Plaintiff William Tomino's Brief in Opposition to Defendants', City of Bethlehem and John Lezoche's Partial Motion to Dismiss Plaintiff's Complaint was filed March 30, 2009. For the reasons articulated in this Opinion, I grant in part and deny in part defendants' motion. Specifically, I dismiss Counts I-IV against defendant Lezoche. I dismiss from the Complaint the due process claim in Count I, and Counts II and III in their entirety, against defendant City of Bethlehem. Finally, I give plaintiff until April 20, 2010 to amend his Complaint in accordance with this Opinion.


Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.


Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because the events giving rise to plaintiffs' claims allegedly occurred in Bethlehem, Northampton County, Pennsylvania, which is within this judicial district.


Plaintiff initiated this action on December 30, 2008 by filing a four-count civil Complaint against defendant City of Bethlehem ("the City"); defendant John R. Lezoche, individually and as Zoning Officer for the City of Bethlehem; and defendants "John Does 1-100". Plaintiff's claims arise from actions allegedly taken by defendants in the context of plaintiff's operation of Tomino's Deli in Bethlehem, Pennsylvania.

Count I of the Complaint is styled "Violation of The Civil Rights Act, 42 U.S.C. § 1983". It alleges violations of Article IV, § 2 and the Fourteenth Amendment of the United States Constitution against all defendants. Count II alleges that all defendants conspired to deprive plaintiff of rights, in violation of 42 U.S.C. § 1985. Count III sets forth a claim of civil conspiracy against all defendants, and Count IV sets forth a claim of abuse of process against defendant Lezoche. Both Counts III and IV charge violations of Pennsylvania state law.*fn1

On March 5, 2009, defendants City and Lezoche filed the within motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On March 19, 2009, plaintiff filed a motion for enlargement of time to respond to the motion. On March 30, 2009, plaintiff filed its brief in opposition to the motion. By Order dated May 21, 2009, I granted plaintiff's motion for enlargement of time and deemed plaintiff's brief in opposition to have been timely filed. Hence this Opinion.


A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted". A 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Ordinarily, a court's review of a motion to dismiss is limited to the contents of the complaint, including any attached exhibits. See Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2). That rule requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, 167 L.Ed.2d at 940.

Additionally, in determining the sufficiency of a complaint, the court must accept as true all well-pled factual allegations and draw all reasonable inferences therefrom in the light most favorable to the non-moving party. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Nevertheless, a court need not credit "bald assertions" or "legal conclusions" when deciding a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-1430 (3d Cir. 1997).

A complaint may not be dismissed merely because it appears unlikely that plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nevertheless, Rule 8(a)(2) requires a "showing" rather than "a blanket assertion of an entitlement to relief". Without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice", but also the "grounds" on which the claim rests. Phillips, 515 F.3d at 232.

In considering whether the complaint survives a motion to dismiss, both the District Court and the Court of Appeals review whether it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 555, 127 S.Ct. at 1969, 167 L.Ed.2d at 944 (quoting Car Carriers, Inc. v. Ford Motor Company, 745 F.2d 1101, 1106 (7th Cir. 1984) (emphasis in original); Haspel v. State Farm Mutual Auto Insurance Company, 241 Fed.Appx. 837, 839 (3d Cir. 2007).

Dismissal is proper if a party fails to allege sufficient factual matter which, if accepted as true, could "state a claim to relief that is plausible on its face". Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868, 884 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949)).


Based upon the averments in plaintiff's lengthy Complaint, which I must accept as true under the foregoing standard of review, the pertinent facts are as follows.

In December 1997, plaintiff bought a barber shop and tailor shop located at 1037 Main Street, Bethlehem, Pennsylvania ("the Tomino property") with the intent to change it to a delicatessen. The Tomino property is located in an R-M Residential District under the provisions of the Zoning Ordinance of the City of Bethlehem, and is located in a neighborhood which is a mix of multi-family residential and commercial uses, with a high percentage of student housing apartments.

The Tomino property is an irregularly shaped 25'x100' lot with a one-story building, with dimensions of 19'x55. It has been used consistently for commercial use for over 76 years, including as a barber shop, tailor shop, Pott's Hot Dogs, an insurance agency, and a marriage counselor's office. The property is unsuitable for use as a residence because of its configuration and layout.

After plaintiff's application for a building permit was denied by the Zoning Officer, plaintiff appealed to the Zoning Hearing Board of the City of Bethlehem ("Board"), and applied for a special exception to use the Tomino property as a delicatessen. On April 22, 1998, after a hearing, the Board granted plaintiff a special exception to operate a delicatessen at the property.

The special exception was subject to the following conditions: "Hours of operation (defined as being when the doors are open to the public) shall be limited to: Monday through Friday: 10:30 a.m. to 6:00 p.m.[;] Saturday: 11:00 a.m. to 6:00 p.m.[; and] Sunday: closed."*fn2 The special exception also provided that "No grill or any cooking device requiring an exhaust fan shall be used", "No pinball machines, video, or arcade games shall be permitted", and "No cigarette or lottery ticket sales shall be permitted".*fn3

Plaintiff opened Tomino's Deli in January 1999. The deli primarily sells sandwiches, potato chips and drinks. It is located across the street from Moravian College and is frequented by college students. Since his purchase of the Tomino property, plaintiff has been a good neighbor.

In September 2001, plaintiff began taking telephone orders for sandwiches after the deli was closed to the public for the day. No customers enter the store after closing in connection with those orders, and plaintiff personally delivers the sandwiches. Plaintiff took telephone orders and delivered sandwiches for nearly two years in this manner. Bethlehem's former zoning officer, Stephen L. Chanitz, testified under oath in a separate proceeding that the delivery service did not generate noise, traffic, or patrons.

In April 2004, defendant Lezoche, the zoning officer for the City, purchased 930 Monocacy Street, Bethlehem, Pennsylvania (the "Lezoche property"), for his daughter. The Lezoche property is in the neighborhood of the Tomino property. Defendant City, through defendant Lezoche and others, began to conduct inspections of Tomino's Deli.

On November 11, 2003, defendant Lezoche delivered a Cease and Desist Order to Tomino's Deli for an alleged violation of Article 1323.04(c) of the Zoning Ordinance: "Expanding a lawful non-conforming use (Delicatessen) by offering delivery service between the hours of 12:00 am and 3:00 a.m on Sunday mornings" and "Installing table and seating outside the Deli for patrons to consume food outside and on the property of the Deli owner, 1035-1037 Main St."*fn4 Defendants knew that plaintiff had been making deliveries for at least two years prior to the Cease and Desist Order.

In January 2004, an anonymous complaint was allegedly received from a citizen claiming that a customer ordered and paid for a sandwich at Tomino's, then noticed a roach behind the counter and refused to accept the sandwich. Defendant Lezoche, personally or through an unknown third party, made this false and unsubstantiated complaint to harass plaintiff. On January 12, 2004, purportedly in response to the anonymous complaint, a representative of the City Bureau of Health inspected Tomino's Deli and concluded, in a written report, that "No roaches or evidence of was found."*fn5

In June 2004, without authority, defendant Lezoche issued a Cease and Desist order, seeking to stop Tomino from taking orders and delivering sandwiches after 6:00 p.m. On June 23, 2004, the Board heard plaintiff's appeal challenging the Cease and Desist order. By letter dated June 29, 2004, Lezoche, who was not a member of the Board, advised plaintiff that his appeal was denied.

On December 3, 2005, Jimmy Smith, the City Street Supervisor, came across the street from the deli with a police officer and watched as plaintiff plowed snow around the property. On December 29, 2005, an employee from the City Housing Department went to the deli and stated that he was looking at plaintiff's truck, and that he "wanted tires just like his".*fn6

On January 13, 2006, defendant Lezoche went into the deli, ordered a sandwich, and advised plaintiff that he was "just checking".*fn7 On January 26, 2006, defendant Lezoche went into the deli and asked plaintiff whether the wall was real brick or paneling, and talked about the renovation work that plaintiff had done. On January 27, 2006, defendant Lezoche went into the deli again and said how much more room plaintiff had in there. Defendant Lezoche went into the deli again on February 28, 2006, examining the deli for possible violations.

On February 2, 2006, defendant Lezoche went into the deli at 5:50 p.m., placed an order, and talked about the stones in the back of the Tomino property. He advised plaintiff that there is a ten-foot setback. Plaintiff replied that he was permitted to lay stone up to the property line. On February 3, 2006 defendant Lezoche called from City Hall and talked about code violations of stones, asked what kind of stones they were and what plaintiff's plans were. He advised plaintiff that he could not expand parking without "go[ing] to Zoning", but told plaintiff that he could put stones up to the property line.*fn8

That same day, Tracy Samuelson, Assistant Director of the Bethlehem Planning Bureau, went into the deli, placed an order, and began discussing the stoning of the parking lot, telling plaintiff that it must be paved. Plaintiff told director Samuelson that he had obtained approvals one and a half years prior.

On February 4, 2006, defendant Lezoche went into the deli and asked if plaintiff's neighbor had talked to him, to which plaintiff responded "no, what neighbor?"*fn9 Defendant Lezoche shook his head and did not answer.

On February 7, 2006, Stewart Cochran of the City Health Department went in and said that he heard plaintiff was doing work, and "felt bad that Tomino did not call".*fn10 On February 11, 2006, defendant Lezoche went into the deli again and advised plaintiff that he was getting a Cease and Desist order, and said that plaintiff would need to submit a new floor plan because he had "moved things around".*fn11 Defendant Lezoche said that if plaintiff had come to him first, they could have "worked it out" because "he works out problems with people".*fn12

On February 14, 2006, defendant Lezoche wrote to plaintiff and advised him that a land development review was required for his proposed expanded parking area. He also stated that a construction permit was required for plaintiff's change in floor plan for any new construction, such as a new wall or new openings. The letter also advised plaintiff that if no new construction took place, then a scaled drawing of the revised delicatessen must be submitted for health and fire department review. According to the letter, "[f]ailure to respond to his office within 5 days concerning the above will result in a 'Cease and Desist'."*fn13

By letter dated February 22, 2006, plaintiff's attorney Robert A. Nitchkey, Jr., Esquire, responded on plaintiff's behalf to defendant Lezoche's February 14, 2006 letter. Attorney Nitchkey advised defendant Lezoche that plaintiff had made no interior structural changes to the deli; that plaintiff had not proposed any additional parking at that time; that plaintiff had submitted, and secured approval, plans for additional parking in 2001; and that plaintiff recently stoned a portion of the rear yard with the intent of pursuing the approval previously secured. Attorney Nitchkey requested information concerning any additional necessary steps so that plaintiff could continue to be compliance with municipal requirements.

On February 24, 2006, health inspector Stewart Cochran went into the deli. Plaintiff asked Mr. Cochran if he needed a new floor plan because the equipment had been moved, as stated by defendant Lezoche's letter. Mr. Cochran asked plaintiff if his equipment was on wheels. Plaintiff advised him that it was, and Mr. Cochrain advised him that because it was not permanent, and with no new walls, no floor plan was needed. Mr. Cochran also concluded on the official report form of February 24, 2006 that the re-ordering of Tomino's deli complied with code.

On May 24, 2006, defendant Lezoche responded in writing to Attorney Nitchkey's February 22, 2006 letter as follows:

In response to your letter of February 22, 2006 regarding the above property, Code Enforcement and the Health Bureau have been in contact with Mr. Tomino, and he has received the necessary approvals.

However, the rear parking lot issue remains to be resolved. Mr. Tomino went before the Zoning Hearing Board on March 3, 2002 and was granted a special exception to expand the delicatessen use and parking lot. Since Mr. Tomino failed to act on the expansion and construction of both within a year's time, the decision of the Zoning Hearing Board becomes invalid. (Article 1325.09 of the Zoning Ordinance.) Mr. Tomino must, again request an appeal for a special exception for his parking lot. (Article 1308.02.c.1 refers to 1307.02.c2) Under the Subdivision and Land Development Ordinance and the Zoning Ordinance off-street parking requirements (Article 1319.02), Mr. Tomino must submit a Land Development (Survey) Plan for the Planning and Zoning Bureau review for the proposed parking area.

Since Mr. Tomino has covered most of his rear lot with stone, no parking is permitted in this area until all of the above is satisfied. The existing four (4) parking spaces immediately adjacent to W. Laurel Street must be paved and properly lined (Article 1319.02.h). Parking of more ...

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