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Jin Fu Zhong v. Kathleen Sweeny

March 28, 2011


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


Jin Fu Zhong was the president and sole shareholder of Tong Shing Restaurant, Inc., an "S" corporation*fn1 which owned and operated Tong Shing Restaurant in Nazareth, Pennsylvania. Mr. Zhong brought this case under 42 U.S.C. § 1983 alleging that several agents*fn2 of the Pennsylvania Department of Agriculture violated various constitutional rights, conspired to interfere with those rights, and violated the RICO Act and various Pennsylvania statutes. These claims stem from the agents' involvement in inspections and prosecutions of the restaurant over the years. The remaining defendants*fn3 have filed a motion for summary judgment to which the plaintiff has responded. For the following reasons, I will grant the motion in its entirety and enter judgment in favor of the defendants.


Tong Shing Restaurant purchased its equipment, fixtures, furniture, and machinery from Mr. Zhong and his wife. It was located in a commercial building owned by the Zhongs to whom it paid rent. The S Corporation used the same facility for its offices. Mr. Zhong managed Tong Shing, and his wife worked there and managed it on occasion. Mr. Zhong understands "plain English," but not professional words. Mrs. Zhong's command of English is much more limited.

Defendants Kathleen Sweeny and Willie Phillips are food sanitarians with the Pennsylvania Department of Agriculture, Bureau of Food Safety. Defendant William Kinder was their supervisor until he retired in April 2005. Miss Sweeny was the agent assigned to the area in which the restaurant was located. Her inspections of the restaurant lasted four or five hours typically. During inspections, Agent Sweeny would sometimes discard food or request a voluntary closure. The Bureau of Food Safety would ask for a voluntary closure when unsanitary conditions pose a health threatening situation. If a restaurant owner or manager refuses, the facility may be shut down through a formal license suspension or revocation process. The Bureau does not close restaurants very often. It is a major action. When Agent Sweeny conducted her inspections, she would try to communicate by showing as well as talking. She would prepare a report and explain in a simple way what needed to be done to correction violations. If Agent Sweeny inspected a restaurant, it was her practice to also do a frozen dessert inspection if the restaurant served frozen desserts. If the Bureau sent a warning letter, the practice was to re-inspect the establishment soon afterward. From time to time, Bureau supervisors would accompany the agents and observe their inspections.

It was Mr. Zhong's practice to give discounts at his restaurant to his "friends." Because he considered her a friend, Mr. Zhong also gave Agent Sweeny a discount for takeout food, and when she and her husband would come for dinner every month or two. Agent Sweeny denies receiving or knowing about a discount, because her husband always paid the bill. In fact, Agent Sweeny testified that she stopped eating at the restaurant before March 2003. Mr. Zhong alleges that the last discount Agent Sweeny or her husband received was on March 23, 2003, when a waiter gave them a twenty percent discount instead of the usual fifty percent discount. A Bureau agent was not required to disclose receiving a discount from a restaurant. It is unclear, however, whether grounds for discipline existed if an agent's spouse received a discount from a restaurant in the agent's assigned area.

The Bureau policy is not to re-inspect a facility while a prosecution was pending. Agents' reports are public information. Before 2006, the public accessed inspection reports by requesting them by facility or date. Agents had access to all other agents' reports on the 2006 software and on the prior system which was in place before 2000.

The record contains a concise history of the Bureau's dealings with Tong Shing Restaurant over the years. It is important to note that on September 30, 2009, I dismissed all civil rights claims in the amended complaint which were based on events that preceded May 12, 2006 because of the two-year statute of limitations. I also dismissed any part of the RICO claim which had been based on events that preceded May 12, 2004 because of the four-year statute of limitations. See Document #33. Those events are presented here for background purposes only.

A. Events Leading Up to May 12, 2004 -- Outside the Statute of Limitations for Civil Rights Claims and RICO claim

Agent Sweeny approved the plans and conducted the first inspection of Tong Shing Restaurant before being issued its license in 1998. In March 2001, Agents Sweeny and Phillips found violations of the Food Code at the restaurant. A re-inspection ten days later showed repeat violations, including critical ones. A couple months later, Supervisor Kinder wrote Tong Shing Restaurant a warning letter, referring to the two March inspections. Mr. Zhong responded that "deviation items" had been corrected.

In January 2002, Agent Sweeny found fourteen violations during her inspection, some of them critical. Two of those were the violations found in 2001 which the plaintiff had reported as corrected. The inspection resulted in prosecution of the facility. Also, a warning letter was sent regarding high lab counts for frozen dessert in violation of the Frozen Dessert Law. Mr. Zhong pled guilty for Tong Shing's "preparing and serving food to the public from an unclean and insanitary public eating and drinking place and not maintaining proper temperatures." Tong Shing was sentenced with a fine on Feb. 25, 2002. After the prosecution was complete, Agent Sweeny conducted a follow-up inspection on April 1, 2002, and found repeat and critical violations that resulted in a three-hour closure of the facility to which Mr. Zhong agreed.

Agent Sweeny returned to the restaurant when it was supposed to be closed, and saw that it was open. Because she saw some improvements, she allowed it to remain open but notified Mr. Zhong that she would return in the morning. Agent Sweeny returned the following morning, noted some improvement, but also found repeat violations. Mr. Zhong promised to correct those violations within a week. The follow-up inspection of April 22, 2002, noted many repeat violations, which Mr. Zhong again agreed to correct.

Agent Sweeny submitted frozen dessert samples for testing in March, April, May and July 2002. Because the lab results were repeatedly abnormal, she requested a citation against Tong Shing. District Justice Frey accepted Mr. Zhong's guilty plea for Tong Shing and imposed a fine.

During 2002, Agent Sweeny found repeated food temperature violations, obtained voluntary closure of Tong Shing, discarded food, and prosecuted Tong Shing on at least two occasions. As inspections worsened, Agent Sweeny noticed a gradual change in Mr. Zhong's attitude toward her.

Agent Sweeny planned to inspect Tong Shing on March 13, 2003, but was not able to do it that day. On March 23, 2003, Mr. Zhong claims that Agent Sweeny and her husband had dinner at Tong Shing, that Mr. Sweeny paid the bill after Agent Sweeny left the restaurant, and that the couple had been given a twenty percent discount rather than a fifty percent discount. Mr. Zhong claims that Agent Sweeny knew of the discount reduction switch and it angered her. Agent Sweeny denies knowing of any discount. On March 24, 2003, Agent Sweeny performed the inspection of Tong Shing which had been planned for March 13th. She noted critical and repeat violations with food temperature and cleanliness. She also did a routine frozen desert inspection which resulted in another warning letter. Mr. Zhong claims the Agent Sweeny discarded sixty pounds of chicken during that inspection.

On May 7, 2003, Agent Sweeny conducted a post-warning re-inspection of Tong Shing. Because she found many repeat and critical violations, Agent Sweeny requested prosecution. Supervisor Kinder prepared the citation. Mr. Zhong entered a plea of "not-guilty" for Tong Shing in July 2003. At the hearing, on September 8, 2003, District Justice Frey found Tong Shing guilty of Food Code violations, but did not fix a penalty.

Pursuant to District Justice Frey's request, Agent Sweeny did follow-up inspections of the restaurant. On September 18, 2003, she again found multiple repeat and critical violations, and submitted a report to District Justice Frey who imposed a fine. Agent Sweeny also did a compliance frozen dessert inspection. Because the lab results were abnormal, Tong Shing was cited again. Mr. Zhong pled guilty to frozen dessert violations in December 2003.

On February 26, 2004, a customer of the restaurant saw a cockroach and lodged a consumer complaint. The complaint triggered another inspection of Tong Shing on March 15, 2004. Agent Sweeny's report of the inspection describes filth and temperature problems, with fourteen violations, including three critical ones. Mr. Zhong agreed to a voluntary closure from 12:30 to 3 p.m. to allow for a clean-up. Agent ...

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