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Keith Dougherty, et al v. Jonathan Snyder

May 16, 2011

KEITH DOUGHERTY, ET AL., PLAINTIFFS
v.
JONATHAN SNYDER, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

This civil-rights action was initiated by the pro se plaintiff, Keith Dougherty. It arises from the issuance of a building permit for improvements to be made to a residence located in North Hopewell Township, with the anticipation of selling the house at a profit. The improvements were begun but never completed. Plaintiff Dougherty traced the situation to the actions of the Township and its agents as Plaintiff invoked rights under the Pennsylvania Construction Code Act ("PCCA"), 35 Pa. Stat. Ann. § 7210.101-7210.1103 (West 2003), in an attempt to get construction of the improvements back on track. He also complained about rulings made by the state courts in actions he filed, in part, to remedy the alleged violations of the PCCA on the part of the Township and its agents. Federal constitutional claims were made for violations of procedural due process, substantive due process, equal protection, and the takings clause of the Fifth Amendment. The complaint also mentioned the Pennsylvania Constitution and Pennsylvania common law.

The defendants filed motions to dismiss. On January 25, 2011, we granted those motions but allowed plaintiff Dougherty leave to amend. Dougherty v. Snyder, 2011 WL 292236 (M.D. Pa.). On February 15, 2011, Dougherty filed an amended complaint (doc. 124), with additional plaintiffs and defendants. We are considering the defendants' motions to dismiss that pleading.

On the amended complaint, the plaintiffs, all proceeding pro se, are: Keith Dougherty ("Dougherty"), the sole member of Docson Consulting LLC, the limited liability company that had contracted to make the improvements to the property*fn1 ; Keith Dougherty Insurance and Consulting, a sole proprietorship operated by Dougherty; Jean L. Brady, one of the owners of the property; and Kenneth Brady, formerly married to Melanie Brady, the other owner of the property.*fn2 The defendants are: North Hopewell Township; Dustin Grove, William Tollinger, and Robert Barclay, the members of the Township Board of Supervisors; Kerrie Ebaugh, the Township Secretary/Treasurer; Jonathan Snyder, the Township's Building Construction Officer at the relevant time; Stephen Linebaugh, Judge of the York County Court of Common Pleas; Pamela Lee, the court's Prothonotary; J. Robert Chuk, District Court Administrator for the court; John Doe members of the Pennsylvania Commonwealth Court, "as authors of per curiam opinions 553 CD 2007, 317 MD 2008,*fn3 1450 CD 2008, 629 CD 2009, and 1200 CD 2009"; Ron Englar, the U.C.C.*fn4 Field Operations Manager for the Pennsylvania Department of Labor and Industry; Melanie Brady; Darrell VanOrmer, Melanie Brady's lawyer in her state-court action against Jean Brady to partition the property; and "unnamed insurance carriers" for the Township. The individual defendants working for the state or the Township have been sued in their individual and official capacities.

We are considering the following motions to dismiss under Fed. R. Civ. P. 12(b)(6): (1) Pamela Lee's motion (doc. 125); (2) the motion of North Hopewell Township, its supervisors and its Secretary/Treasurer (doc. 132); (3) the motion of Darrell VanOrmer (doc. 133); (4) the motion of Melanie Brady (doc. 134); (5) the motion of Judge Linebaugh, Chuk, and the John Doe commonwealth court judges (doc. 136); and (6) the motion of Jonathan Snyder.

II. Standard of Review

Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted).

A complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007). Detailed factual allegations are not required, id. at 555, 127 S.Ct. at 1964, but the "'plausibility standard' . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965)). "[M]ore than labels and conclusions" are necessary. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65. "[A]llegations that are merely consistent with liability are insufficient to state a claim for relief that is plausible on its face . . ." Laffey v. Plousis, 364 F. App'x 791, 794 (3d Cir. 2010) (nonprecedential) (quoting Iqbal, 129 S.Ct. at 1949)(internal quotation marks omitted).*fn5 Additionally, when a plaintiff, as here, alleges a conspiracy, he "must

assert facts from which a conspiratorial agreement can be inferred." Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). "[C]onclusory allegations that there was 'a corrupt conspiracy,' 'an agreement,' or 'an understanding in place'" are not sufficient. Id. The winning party in a lawsuit does not automatically become a co-conspirator with the judge simply because he won. Id.

The court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, matters of public record, and indisputably authentic documents. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006). This includes court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999)(citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). See also Parks v. Twp. of Portage, 385 F. App'x 118, 120 (3d Cir. 2010)(per curiam) (nonprecedential)(on a motion to dismiss for lack of jurisdiction the court would take judicial notice of publicly available state-court opinions). When the allegations of the complaint differ from the documents attached to the complaint, the documents control, and the allegations of the complaint need not be accepted. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994); Goldenberg v. Indel, Inc., 741 F. Supp. 2d 618, 624 (D.N.J. 2010).

Finally, while "pro se complaints are 'liberally construed' and 'held to less stringent standards than formal pleadings drafted by lawyers,'" Jackson v. Div. of Developmental Disabilities, 394 F. App'x 950, 951 n.3 (3d Cir. 2010)(per curiam) (nonprecedential)(quoted case omitted), a pro se complaint must still "contain allegations permitting 'the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoted case omitted).

With these principles in mind, we provide the background to this case, as Plaintiff alleges it.

III. Background

The amended complaint alleges as follows. Melanie Brady and Jean L. Brady were the deed holders on the property, (doc. 124, Am. Compl. ¶ 88), although Kenneth Brady and Melanie Brady, who were husband and wife, had lived there during their marriage. (Id. ¶ 87).

On July 28, 2006, Melanie and Kenneth Brady executed a "Divorce/Separation Agreement." (Id. ¶ 199; Am. Compl., Ex. B). The agreement contemplated that within a short time either a sale of the marital home would occur or that it would be improved and then sold.*fn6 The parties to the agreement "were strictly prohibited from interfering with 3rd party arrangements in any way." (Am. Compl. ¶204).*fn7 Melanie Brady was paid $2,500 at the time of the agreement, leaving her with "no further claim against the real estate." (Id. ¶ 208).

Dougherty, Keith Dougherty Insurance and Consulting, and Docson Consulting "contracted with" Jean L. Brady "whereby Keith Dougherty purchaser with POA fbo Jean Brady [as to management and sale of her interest in the real estate in question] and exclusive rights with regard to design and or implementation of improvements and sale of project. [Such disclosure and design is made Part of EXHIBIT 1 "The Sales Agreement" with expressed intent to defer taxation for non-resident owners]. And incorporated by reference for the purpose of tax Deferral of Docson Consulting LLC EXHIBIT A. With further detail as to intendment of sale to Keith Dougherty outlined in the Disclosure document EXHIBIT C." (Id. ¶ 31).*fn8

Proceeds from the sale of the house were to be used for the construction of a "Cluck U" chicken franchise, (id. ¶ 202), which had a deadline of April 30, 2008. (Id. ¶ 203).

On August 17, 2006, Kenneth Brady applied for the building permit. (Id. ¶ 33). On October 4, 2006, the permit was issued. (Id. ¶ 35). Docson Consulting made payment of $1,131.50 for the fees, (id.), and then an additional fee of $438.90, allegedly illegally imposed when Snyder "unlawfully add[ed] additional inspections" after he found out there was an "additional payor." (Id. ¶ 36). Plaintiffs allege that the permit "is valuable personal property owned by Docson Consulting LLC." (Id. ¶ 38).*fn9

About May 2007, Snyder had his son inform Kenneth Brady of a stop work order "based on a suspicion and without inspection." (Id. ¶ 43). Plaintiff Dougherty sought clarification and Snyder told him he had "forg[otten]" that the permit involved a second-story addition of three bedrooms and a bath. (Id. ¶ 44). This addition would "chang[e] the load bearing walls from East and West to North and South." (Id.).

At some point, work resumed after Snyder had familiarized himself with the "engineered lumber" being used. In late May 2007, Snyder required three changes: (1) "bolt the first floor addition to the new garage with 1/2 carriage bolts"; (2) "replace the second story bedroom windows to meet the newer egress requirements"; and (3) "cut footings into the basement floor 3'X 3' 12" thick using 1/2 rebar." (Id. ¶¶ 58-61).

On June 15, 2007, Plaintiff Dougherty advised they were ready for inspection, but Snyder refused to perform the inspection, with no written explanation,only "an inference to a Septic System permit." (Id. ¶¶ 63-64). On no fewer than five occasions, Snyder scheduled inspections and then simply refused to show without comment. (Id. ¶ 69).

On October 12, 2007, Plaintiff Dougherty hand-delivered a written request for extension of the building permit. (Id. ¶ 70). On October 31, 2007, the "SEO" issued a septic system permit to accommodate the bedroom addition, and on November 1, 2007, Dougherty visited Snyder's office, hand-delivered the septic permit, and asked about the status of the extension request. (Id. ¶¶ 71 and 72). The person in the office said it was still under review. (Id. ¶ 73). The Township's Secretary/Treasurer, Ebaugh, then "knowingly and improperly advised" Dougherty that such appeals and requests go to the "Governing Board."*fn10 (Id. ¶¶ 75 and 76).

Plaintiff Dougherty was heard at the Supervisors' meeting on November 5, 2007. (Id. ¶ 77). He alleges that Snyder lied at the meeting concerning his knowledge of the extent of the improvements intended for the property and about his refusal to perform inspections. (Id. ¶¶ 78-79). The Supervisors disposed of the extension request at that time by deciding that only Kenneth Brady, the building permit holder, could apply for an extension, even though Kenneth Brady was not a deed holder and had not paid for the permit. (Id. ¶ 81). Plaintiffs allege Snyder and the Supervisors "join[ed] in a conspiracy" to violate "procedural due process" so that they could avoid financial liability (presumably for their mishandling of the permit process) and so that they could "extort[ ] bribes" and collect "fees a second time," (id. ¶ 80), by requiring another permit application. "The Township is part of a conspiracy to collect fines and fees without providing a hearing before a construction appeals board." (Id. ¶ 145).*fn11

Docson Consulting had paid all fees and costs under the agreement to improve the property, and profit of $100,000 had been anticipated. (Id. ¶ 84). Snyder's and the Supervisors' actions resulted in a taking of this investment asset. (Id.).

As a result of progress being halted, "Kenneth Brady lost his only means of earning a living (working as a subcontractor on the project in question)." (Id. ¶ 94). He "fell behind on his truck payments and child support payments" as plaintiff Dougherty attempted to move the project forward. (Id. ¶ 95). In September 2007, Brady "was incarcerated for unpaid child support" and soon thereafter "lost his truck to repossession." (Id. ¶¶ 96 and 97).

On or about November 16, 2007, Dougherty filed a mandamus action against Snyder in the Pennsylvania Commonwealth Court under Number 553 MD 2007. (Id. ¶ 100). On November 19, 2007, Dougherty "hand deliver[ed]" the complaint to Snyder. (Id. ¶ 102). In the action, Plaintiff requested a writ of mandamus directing Snyder to declare the building permit was still valid. (Doc. 15-4, Supp'n Br. of judicial defendants, per curiam opinion of the commonwealth court, CM/ECF p. 6). On November 20, 2007, the commonwealth court, deciding it lacked jurisdiction, sua sponte transferred the action to the York County Common Pleas court. (Compl. ¶ 101; 553 MD 2007 docket; doc. 149-4, CM/ECF p. 2). The latter court, by way of Judge Linebaugh, dismissed the action for lack of service on Snyder. (Compl. ¶ 112). The dismissal violated the First Amendment and Pennsylvania Supreme Court rules on service. (Id.).*fn12

On November 21, 2007, Snyder issued a stop work order, in alleged ignorance of an automatic stay. The stop work order set forth numerous violations of the PCCA and Pennsylvania regulations enforcing the act. Included in the stop work order was notification that Snyder intended to charge North Hopewell Township for his time spent in defending against litigation. (Id. ¶ 103 and Ex. 3 to the original complaint).

On December 4, 2007, the Supervisors held a meeting at which the extension of time for the permit was again considered.*fn13 At the meeting, the Township solicitor and his partner "retired to a back office" with the Supervisors to decide on the extension request. The Township solicitor, in knowing violation of the PCCA, said all they had to do was apply for a second permit, even though he knew that appeals could not be heard by the Board of Supervisors and that extensions are automatically granted if the request is pending for more than thirty days, "(constituting a conspiracy to void due process and punish the plaintiff for demanding inspections)." (Am. Compl. ¶¶ 7, 104-107).

Snyder, the solicitor, Supervisors, and Secretary/Treasurer, in violation of procedural due process, declared the permit expired, without any hearing, cross-examination of witness, presentation of evidence, or written explanation of the decision. (Id. ¶ 111).

In about April 2008,*fn14 Plaintiff filed a complaint with the Pennsylvania Department of Labor and Industry about the actions of Snyder and the Supervisors concerning the building permit. (Id. ¶ 113).*fn15 As a result, in June 2008, Michael G. Gensemer, the Chief of the Department's U.C.C. Inspection Division, wrote a letter to Snyder. (Id. ¶ 220). Gensemer found fault with Snyder's handling of the permit application and placed a warning letter in his certification file. In doing so, Gensemer criticized Snyder's failure to require "construction documents," observing that the submission of construction documents may be waived "only when the nature of the construction does not require review of construction documents to determine compliance with the Uniform Construction Code." (Doc. 1-3, Original Compl., Ex. 5, CM/ECF p. 15)(emphasis in the exhibit).*fn16 According to Plaintiffs, Gensemer's use of the word "only" was an unlawful addition to the statute to support an "indefinable standard and or difference between 'one and two family homes' and 'commercial' construction . . ." (Am. Compl. ¶ 220). In July 2008, responding to a June 2008 letter from Dougherty about North Hopewell Township, Gensemer wrote that the Department does not investigate municipalities and does not have jurisdiction over criminal matters such as Dougherty's charge of extortion. He added that North

Hopewell Township had a new building code officer. (Id. ¶ 221; Original Complaint, Ex. 6, CM/ECF p. 16).

In the meantime, on June 12, 2008, Dougherty filed a mandamus action against Gensemer in the commonwealth court, docketed at 317 MD 2008, apparently to compel him to investigate the Township. (Am. Compl. ¶ 125; commonwealth court docket sheet in Dougherty v. Gensemer, No. 317 M.D. 2008). On January 12, 2009, the "corrupt Commonwealth court" dismissed the action for failure to join the Township as an indispensable party. (Id. ¶ 126). This allegedly violated equal protection. (Id. ¶¶ 126-27). The ruling was also irrational as the Township had no right to be part of a lawsuit attempting to compel an investigation of the Township. (Id. ¶ 126).

At some unspecified time after the improvements were begun, despite having disclaimed any interest in the property, Melanie Brady, Kenneth Brady's former wife, changed her mind. (Id. ¶¶ 91, 209). At some point, she "conspired" with Snyder "to prevent any further progress . . . ." (Id. ¶ 92). She and Snyder "concocted a conspiracy to breach by way of tortuous interference the contracts owned by Keith Dougherty with Jean Brady and Kenneth Brady." (Id. ¶ 211). She wanted to injure her ex-husband by causing him to "lose his only means of earning a living" (working on the improvements) and force him back to jail for unpaid child support. (Id. ¶ 214). In fact, in September 2007, Kenneth Brady was incarcerated for unpaid child support. (Id. ¶

96). She wanted to avoid paying Docson Consulting for its expenses and Keith Dougherty for payments that were to go to him under the contracts. (Id. ¶ 213). As part of the conspiracy, on June 6, 2008, represented by Darrell VanOrmer, Melanie Brady filed a partition action in state court against Jean L. Brady, doing so without joining Docson Consulting as a necessary party and making false statements that there were no other financially interested parties. (Id. ¶¶ 98, 213; doc. 58, CM/ECF p. 21, state-court partition-action memorandum on default motion against Jean L. Brady). About two years later, on June 8, 2010, Melanie Brady moved for a default judgment in the action, and the court ordered a partition on August 24, 2010. (Doc. 58, CM/ECF p. 21, state-court partition-action memorandum, CM/ECF pp. 22 and 25).

After the mandamus action against Snyder had been remanded to the common pleas court, Dougherty attempted to enter a default against him. According to Plaintiff, the default had actually been entered on the docket but then "expunged" by defendant, Pamela Lee, the York County Prothonotary. (Id. ¶ 134). On September 2, 2008, Dougherty filed a mandamus action against Lee in common pleas court, docketed at 2008-SU-4344-08, to compel her to at least enter the attempt at default on the docket so he could appeal the Prothonotary's unlawful act, unlawful in Plaintiff's view because the government (meaning Snyder) is not a person entitled to due process so judgment can be entered against it at anytime under state rules. (Id. ¶ 135).*fn17 The defendant Court Administrator, J. Robert Chuk, assigned the case to Judge Linebaugh. (Id. ¶ 136). This "conspiracy" violated procedural due process because Judge Linebaugh was not a neutral arbitrator as evidenced by his ruling on service of process in the mandamus action against Snyder that originated in the Pennsylvania Commonwealth Court under Number 553 MD 2007, but which was appealed under 1450 C.D. 2008. Judge Linebaugh also could not be neutral because his judicial conduct was exposing him to liability for damages. (Id. ¶¶ 136-37).

Plaintiffs allege that Pennsylvania courts will not recognize an "inverse condemnation" cause of action. Additionally, in violation of the First Amendment, the courts will require service by the sheriff as the only valid method of service for a case challenging a governmental determination, citing York County Local Rule 6017 and Pa. R. App. P. 1514. (Id. ¶¶ 138-39). Plaintiffs specifically challenges the result in Dougherty v. Snyder, No. 1450 CD 2008 (Commw. Ct.), where the commonwealth court allegedly refused to entertain Dougherty's claim of default on the basis that it had not been properly raised in the trial court. (Id. ¶ 139; doc. 149-3, Ex. C, CM/ECF pp. 14-15).

On March 26, 2009, Dougherty filed a mandamus complaint in the common pleas court in the original mandamus proceedings against Snyder. (York County, 2007-SU-5136-Y08). He also tried to reinstate the original complaint. On May 22, 2009, the common pleas court dismissed the action because Plaintiff had failed to file an amended complaint as initially directed and instead, standing on his complaint, had taken the appeal docketed at 1450 CD 2008, decided adversely to Plaintiff on March 6, 2009. Plaintiff appealed the May 22 decision. In affirming the lower court in 1200 CD 2009, the commonwealth court imposed attorney's fees as ...


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