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Bowes v. South Whitehall Township

August 12, 2010

CRAIG A. BOWES, ET AL., PLAINTIFFS,
v.
SOUTH WHITEHALL TOWNSHIP, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

OPINION AND ORDER

I. INTRODUCTION

Before the Court is a Motion to Dismiss (Doc. No. 8) filed by Defendants South Whitehall Township, Keith Zehner, Don S. Klein, Esquire, William H. Macnair, Glenn Block, Samuel E. Smith, and William H. Platt, II, Esquire (collectively "Township Defendants"), pursuant to Federal Rule of Civil Procedure 12(b)(6). Also before the Court is Township Defendants' Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11 (Doc. No. 17). In addition, Plaintiffs have a pending motion to place the case in civil suspense (Doc. No. 19). On April 20, 2010, the Court held a hearing on these motions, which are now ripe for resolution. For reasons discussed below, the Court will grant Township Defendants' Motion to Dismiss, deny Township Defendants' Motion for Sanctions, and deny Plaintiffs' motion to place the case in civil suspense.

II. PROCEDURAL HISTORY

On December 4, 2009, Plaintiffs, Craig A. Bowes and Elizabeth Feudale (husband and wife), filed a civil Complaint (Doc. No. 1) against the Commonwealth of Pennsylvania;*fn1 South Whitehall Township; Keith Zehner, individually and in his capacity as Township Zoning Officer; Don S. Klein, Esquire, individually and in his capacity as Chairman of the Township Zoning Hearing Board ("ZHB"); William H. Macnair, individually and in his capacity as Vice Chairman of the ZHB; Glenn Block, individually and in his capacity as Secretary of the ZHB; William H. Platt, II, Esquire, individually and in his capacity as a member of the ZHB.

Plaintiffs' Complaint alleges violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. Plaintiffs also allege Constitutional claims under 42 U.S.C. § 1983, including violations of the Fourteenth Amendment's Equal Protection Clause, the Fourteenth Amendment's Due Process Clause, and the First Amendment.Finally, Plaintiffs have asserted a civil conspiracy claim pursuant to 42 U.S.C. § 1983.

On January 15, 2010, Township Defendants filed the Motion to Dismiss (Doc. No. 8) now before this Court. In response, Plaintiffs filed a Motion to Strike (Doc. No. 9) the Motion to Dismiss. On February 12, 2010, Township Defendants filed a Response in Opposition (Doc. No. 10) to the Motion to Strike. The Court denied the Motion to Strike on March 24, 2010, and ordered Plaintiffs to file a Response to Township Defendants' Motion to Dismiss. (See Doc. No. 13.) On April 8, 2010, Township Defendants filed the Rule 11 Motion for Sanctions (Doc. No. 17), which is pending before the Court.

On April 15, 2010, Plaintiffs filed a "Response to Defendants' Motions to Dismiss in the Nature of a Motion to Place the Within Action in Civil Suspense Pending the Outcome of the State Remedy Posited by Defendant Commonwealth of Pennsylvania." (Doc. No. 19.) This "Response" did not substantively address any of the arguments raised in Township Defendants' Motion to Dismiss. On April 20, 2010, the Court heard oral argument on the pending motions. At the conclusion of this hearing, the Court ordered Plaintiffs to file a substantive response to Township Defendants' Motion to Dismiss and Motion for Sanctions under Federal Rule of Civil Procedure 11. The Court also ordered Township Defendants to respond to Plaintiffs' motion to place the case in suspense. On April 27, 2010, Township Defendants filed their opposition (Doc. No. 24) to Plaintiffs' motion to place the case in civil suspense; and on April 28, 2010, Plaintiffs filed their substantive Memorandum of Law in Opposition (Doc. No. 25) to Township Defendants' Motion to Dismiss. Finally, on May 13, 2010, Township Defendants filed a Reply Brief (Doc. No. 30) in support of their Motion to Dismiss. Now that briefing on all issues is concluded, the Court will proceed with its disposition of the pending motions.

III. FACTUAL BACKGROUND

Plaintiffs, Mr. Bowes and Ms. Feudale, are a married couple residing in South Whitehall Township, Pennsylvania. (Compl. ¶¶ 3-5.) Ms. Feudale is sensitive to and has been treated for the toxic effects of mold and mycotoxins, toxic encephalopathy, immune deregulation, mold sensitivity, food sensitivity, pollen sensitivity, vasculitis, autonomic nervous dysfunction, and cellular damage due to toxic exposures. (Id. at ¶ 10.) Due to these chemical sensitivities, even minute exposure to any number of substances can result in discomfort, incapacitation, or even life-threatening reactions. (Id. at ¶ 11.) Therefore, Ms. Feudale must spend virtually all of her time in a highly sterile environment to maintain her health. (Id. at ¶¶ 10, 13.)

In March 2006, Plaintiffs purchased a home in South Whitehall Township because it is one of 2,100 homes in the country constructed with porcelainized steel. (Id. at ¶ 14.) Porcelainized steel does not absorb substances that may aggravate Ms. Feudale's condition.(Id.) However, Ms. Feudale's condition proved to be too severe for her to spend all of her time in the porcelainized steel house. (Id. at ¶ 15.) Therefore, upon the advice of Ms. Feudale's physician, Mr. Bowes purchased a prefabricated "bubble" structure, made entirely of galvanized steel and porcelain, to provide a safe haven for his wife. (Id. at ¶ 16.) This "bubble" was designed by Ms. Feudale's physician, Dr. William J. Rea, for the treatment of patients with her condition. (Id.)

In December 2006, Mr. Bowes installed the "bubble" on the property of Plaintiffs' home in South Whitehall. (Id.) Soon thereafter, acting upon an anonymous complaint, Defendant Zoning Officer Zehner inspected Plaintiffs' property.(Id. at ¶ 17.) According to the Complaint, on January 29, 2007, without conducting an adequate investigation, Zoning Officer Zehner sent an enforcement notice to Mr. Bowes, which described the "bubble" as a secondary "residential dwelling unit." (Id. at ¶¶ 18-19.)

In response to the enforcement notice, Mr. Bowes filed an appeal with the Township Zoning Hearing Board ("ZHB") and requested a variance from the applicable zoning regulations. (Id. at ¶ 20.) On May 10, 2007, the ZHB denied Mr. Bowes' appeal and his request for a variance based upon generalized concerns about Plaintiffs' property which, as alleged in the Complaint, were untrue and not properly documented. (Id. at ¶ 21-22.)Plaintiffs further allege that the ZHB was "not presented with any competent evidence that the 'bubble' presented a significant risk to the health and safety of Plaintiffs' neighbors." (Id. at ¶ 23.) Rather, the Defendant members of the ZHB "simply stated that it was their 'opinion' that the use and enjoyment of adjoining properties would be adversely impacted by the 'bubble.'" (Id.)Ultimately, the Defendant members of the ZHB determined that they could not consider the physical hardship of a resident in determining whether to make an accommodation for the Plaintiffs' "bubble" structure through the variance process. (Id. at ¶ 24.) In addition, Plaintiffs' allege that Zoning Officer Zehner, during a November 24, 2008, public meeting before the ZHB, testified that he was "not sure what [the ADA] has to do with" his job as a Zoning Officer. (Pl.'s Mem. Opp. Def.'s Mot. Dismiss, Ex. A at 272:18-22.) Zehner went on to testify that the Municipalities Planning Code ("MPC") is the only law that he takes into consideration in his role as Zoning Officer and that he does not apply the ADA, the RA, or the Fair Housing Act to his administration of the MPC. (Id. at 273:14 -- 274:25.)

On June 13, 2008, Defendant Township filed an action in the Lehigh County Court of Common Pleas (Doc. No. 2008-C-2880) seeking a mandatory injunction forcing Plaintiffs to remove the "bubble." (Compl., ¶ 28.) On October 1, 2008, the Honorable Carol K. McGinley of the Lehigh County Court of Common Pleas granted the Township's motion. (Id. at ¶ 29.) Plaintiffs appealed this decision. (Id. at ¶ 30.) On July 7, 2009, the Commonwealth Court affirmed Judge McGinley's decision. (Id. at 31.) Subsequently, Defendant Township moved to enforce the mandatory injunction and have the "bubble" removed. (Id. at 32.) Following these events, Plaintiffs sought relief by filing the present federal civil rights suit on December 4, 2009.

IV. TOWNSHIP DEFENDANTS' MOTION TO DISMISS

A. Standard of Review

The motion to dismiss standard under Rule 12(b)(6) has been the subject of recent examination, culminating with the Supreme Court's Opinion in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). After Iqbal it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Applying the principles of Iqbal, the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) articulated a two part analysis that district courts in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss. See also Edwards v. A.H. Cornell & Son, Inc., No. 09-3198, 2010 WL 2521033, *2 (3d Cir. June 24, 2010). First, the factual and legal elements of a claim should be separated, meaning "a District Court must accept all of the complaints' well-pleaded facts as true, but may disregard any legal conclusions." Fowler, 578 F.3d at 210-11. Second, the Court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. In other words, a complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Id. (citing Phillips v. County of Allegheny 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'shown'-- 'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950; Jones v. ABN Amro Mortg. Group, Inc., 606 F.3d 119, 123 (3d Cir. 2010). This "plausibility" determination under step two of the analysis is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

B. Discussion

1. The Americans With Disabilities Act, The Rehabilitation Act, And The Statute of Limitations

Plaintiffs allege that Township Defendants' refusal to grant a variance for the medically necessary "bubble" structureviolates the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). According to Plaintiffs, this refusal effectively bars Plaintiffs from receiving the benefit of any services of the Township, because, without the "bubble," Plaintiffs are unable to live as husband and wife anywhere in the Township. (Compl. ¶¶ 24-27; Pl.'s Mem. Opp. Def.'s Mot. Dismiss, 12.) Township Defendants argue that Plaintiffs' ADA and RA claims should be dismissed for two reasons: (1) these claims are time-barred by the applicable statute of limitations; and (2) Plaintiffs have failed to identify any services, programs, or activities which they have been denied as a direct result of the Township's actions.

Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. ยง 12132."This statement constitutes a general prohibition against discrimination by public entities, ...


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