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Jeanne Zaloga; and Edward Zaloga v. Borough of Moosic; Moosic Borough Council; Moosic Planning

July 19, 2011

JEANNE ZALOGA; AND EDWARD ZALOGA, PLAINTIFFS
v.
BOROUGH OF MOOSIC; MOOSIC BOROUGH COUNCIL; MOOSIC PLANNING COMMISSION; MOOSIC BOROUGH ZONING BOARD OF ADJUSTMENTS; JOSEPH MERCATILI; JOSEPH DENTE; THOMAS HARRISON; BRYAN FAUVER; AND JAMES DURKIN, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is defendants' motion to dismiss. Having been fully briefed, the matter is ripe for disposition.

Background

This complaint arises from a dispute about zoning decisions made by defendants concerning property held by plaintiffs' neighbor. Plaintiffs are residents of Moosic Borough in Lackawanna County, Pennsylvania. (Complaint (hereinafter "Complt.") at ¶¶ 1-2). Plaintiff Edward Zaloga is the sole shareholder of a health and medical company that provides contracted medical services to correctional facilities, including the Lackawanna County Prison.*fn1 (Id. ¶¶ 3-4).

Plaintiffs' home is located in a R-1 Residential District in Moosic, Pennsylvania. (Id. at ¶ 19). Plaintiffs' property is adjacent to the Jack Williams Tire & Auto Service Center ("Jack Williams Tire"). (Id. at ¶¶ 20-21). Jack Williams Tire is located in a manufacturing zoning district as established by the Moosic Borough zoning ordinance. (Id. at ¶ 20). The facility serves as a distribution center, retail tire shop and corporate offices for Jack Williams Tire. (Id.). Plaintiffs' property and Jack Williams Tire are separated by a narrow strip of land. (Id. at ¶ 22). The developer's original subdivision map, recorded in the Office of the Recorder of Deeds in Lackawanna County on September 24, 1965, identifies this strip of land as Carey Lane. (Id.). That strip of land is narrow and undeveloped, filled with natural grasses and vegetation consistent with other undeveloped property in the area. (Id. at ¶ 23). Carey Lane has never been developed since being identified in 1965. (Id.).

Plaintiff's have owned their home and property since 1994. (Id. at ¶ 24). In 1999, they constructed an addition to their home that encroached on part of Carey Lane. (Id. at ¶ 25). Plaintiffs allege that they have "exclusively, visibly, notoriously, distinctly and in a legally-hostile [sic] manner used the portion of Carey Lane that runs along [their] property line with a manifest intent to possess the land for themselves." (Id.). Indeed, defendant Joseph Dente, a member of the Moosic Borough Planning Commission, reviewed and approved plaintiffs' plans for an addition that encroached on Carey Lane prior to that addition's construction. (Id. at ¶ 26). Plaintiff's allege that they and the previous owner of the property had adverse possession of portions of Carey Lane for more than twenty-one years. (Id. at ¶ 27).

Plaintiffs' troubles with the Borough Planning Commission began in 2005. During the first part of that year, plaintiffs learned that Jack Williams Tire had begun to retread and recap tires at the facility next to their home. (Id. at ¶ 29). Plaintiffs also learned that Jack Williams tire intended to expand their facility and these operations. (Id.). This recapping and retreading work caused plaintiff's property to be covered in rubber particles, soot, smoke and noxious odors. (Id. at ¶ 30). The manufacturing activity also caused trucks to remain parked for hours near Jack Williams Tire. (Id. at ¶ 31). This activity also adversely affected plaintiffs' neighbors. (Id. at ¶ 30).

On August 5, 2005, Plaintiff Edward Zaloga sent a petition signed by eight of his neighbors to the then-mayor of Moosic Borough, John Segilia, Defendants Joseph Mercatili and Thomas Harrison, and other Borough Planning Commission members. (Id. ¶ 32). This petition protested the public nuisance and zoning violations allegedly committed by Jack Williams Tire. (Id.). Plaintiffs allege that under Moosic Borough's zoning ordinance, Defendant James Durkin, as Zoning Code and Enforcement Officer, was required to initiate an investigation upon receiving a complaint. (Id. ¶ 33). Plaintiffs contend that Durkin and the Borough "knowingly, willfully and intentionally" violated the zoning ordinance by refusing to initiate an investigation after receiving plaintiffs' complaint. (Id.). Instead, they knowingly allowed the violations to continue. (Id.).

On August 23, 2005, Edward Zaloga sent another petition, signed by twenty-three neighbors, complaining of continuing zoning violations by Jack Williams Tire. (Id. at ¶ 34). This petition specifically requested an investigation from the Borough. (Id.). Still, the Borough continued willfully to refuse to investigate, allowing the zoning violations to continue. (Id.). Plaintiffs contend that these actions violated Borough zoning law. (Id.)

Edward Zaloga sent Durkin a letter on September 7, 2005 requesting an investigation into zoning violations at Jack Williams Tire. (Id. at ¶ 35). Durkin again refused to investigate, allowing the violations to continue. (Id.). Plaintiffs contend that these actions violated Borough zoning law. (Id.).

On October 3, 2005, the Pennsylvania Department of Environmental Protection issued a notice of violation to the company operating the manufacturing process at Jack Williams Tire. (Id. at ¶ 36). The notice verified that contaminants had been produced at the tire facility as a result of the manufacturing operations. (Id.).

That same month, Jack Williams Tire filed an application with Defendant Zoning Commission seeking approval of a proposed development plan. (Id. at ¶ 37). The plan proposed adding nearly 50,000 square feet to the existing 85,800-square- foot facility. (Id.). This proposed addition exceeded the maximum permitted size increase under Borough zoning law. (Id. at ¶ 38). Jack Williams Tire sought to increase the size of its operations by more than 50%. (Id.). The Zoning Commission verbally denied this proposal on October 26, 2005. (Id. at ¶ 39). Plaintiff Edward Zaloga wrote the Commission on December 6, 2005, requesting that the Commission put this verbal denial in writing, as required by the Pennsylvania Municipalities Planning Code. (Id. at ¶ 40). The Commission refused to do so. (Id.). Jack Williams Tire then obtained an order from the Court of Common Pleas reversing the Zoning Commission's verbal denial. (Id.). Plaintiffs contend that the Commission willfully committed a violation of Pennsylvania law in hopes of having a court reverse its decision. (Id. at ¶ 41).

On January 16, 2006, Plaintiff Edward Zaloga sent a letter to the Defendant Commission complaining of public nuisance and zoning violations at Jack Williams Tire. (Id. at ¶ 42). The Commission again did nothing. (Id.). The Borough and Commission's alleged repeated failure to respond to plaintiffs' requests for investigation caused Zaloga to send the Commission a letter on June 5, 2006 requesting a hearing to address ongoing nuisance and violations at the Jack Williams Tire site. (Id. at ¶ 43). Over the next eleven months, from June 2006 to May 2007, Plaintiff Zaloga continued his efforts to get the Borough officials to recognize the problem with the property. (Id. at ¶ 44). He made "repeated verbal requests" to borough officials asking them to investigate various violations at Jack Williams Tire. (Id.).

Jack Williams Tire submitted a Land Development Plan to the Defendant Zoning Commission in February 2007. (Id. at ¶ 45). Plaintiff alleges this plan violated the Borough Zoning ordinance because the addition proposed by the plan was too large. (Id.). Under this plan, trucks, tractor-trailers, and other industrial vehicles would idle and dock for the purpose of unloading their cargo in an area immediately adjacent to plaintiffs' property. (Id. at ¶ 46). Plaintiffs' swimming pool and bedrooms are located in this area. (Id.). Plaintiff Edward Zaloga notified Jack Williams Tire of his concerns about noise and other public nuisances created by the proposed use when Jack Williams Tire submitted the plan. (Id. at ¶ 47).

In March and April 2007, Plaintiff Edward Zaloga attended meetings of the Defendant Lackawanna County Planning Commission. (Id. at ¶¶ 48-50). At those meetings, Zaloga objected to various features of the plan, including Zaloga's claim that the intended use was prohibited in the zoning district, that parking was insufficient, and that the plan did not properly contain or identify improvements adjacent to plaintiffs' property. (Id. at ¶ 50). Despite these objections, the Defendant Commission conditionally approved the plan at its hearing on April 25, 2007. (Id. at ¶ 51).

Plaintiff Edward Zaloga continued his protests of this decision. He spoke with a journalist about his complaints with the Commission and Borough's alleged failure to consider properly the impact of the Jack Williams Tire plan on April 25, 2007. (Id. at ¶ 52). On May 8, 2007, Edward Zaloga sent a petition to Defendant Mercatili that sixty-three of his neighbors had signed. (Id. at ¶ 54). The petition protested the Planning Commissions' supposed "willful and intention refusal to properly consider the law and facts" before approving the Jack Williams Tire plan. (Id.). The Borough and Commission did nothing to act on this petition. (Id.). Zaloga also attended a Borough Council meeting on May 8, 2007. (Id. at ¶ 55). At that meeting, he attempted a public protest of Commission officials' conduct. (Id.). The meeting was open to the public, but Council officials refused Zaloga an opportunity to speak. (Id.). This same refusal to allow Zaloga to present his complaint occurred at Council meetings on May 16 and May 23, 2007. (Id. at ¶¶ 56, 58). Zaloga also sent Defendant Fauver a letter on May 23, 2007 to inform him that he "publicly protested" approval of the Jack Williams Tire plan. (Id. at ¶ 59). Plaintiff sent other letters in June 2007 reiterating his objections to the plan. (Id. at ¶¶ 60-61).

Despite these repeated objections, Defendant Durkin issued a permit for construction to Jack Williams Tire on August 27, 2007. (Id. at ¶ 62). Plaintiff Edward Zaloga attended a Planning Commission meeting open to the public on November 13, 2007. (Id. at ¶ 63). There, he continued to raise objections to issuance of the permit, offering evidence of numerous zoning ordinance violations committed by Jack Williams Tire. (Id.). Zaloga also attempted to introduce expert testimony on the zoning violations, but the Commission refused to hear that testimony. (Id. at ¶ 64). The Scranton Times-Tribune covered this meeting, and on November 14, 2007 the newspaper published an article about it. (Id. at ¶ 65). The article quoted Zaloga's comments at the hearing, including a statement that the zoning decision was directly contrary to borough ordinances. (Id. at ¶ 65).

Plaintiffs entered into a settlement agreement with Jack Williams Tire on November 28, 2007. (Id. at ¶ 66). This agreement attempted to resolve issues about noise and other nuisances. (Id.). The parties agreed that Jack Willliams Tire would construct a noise barrier ("berm") to act as a buffer between the two properties. (Id.). While Jack Williams Tire built the berm in January 2008, the plaintiffs allege that the company breached the agreement by failing to build the structure to the height and quality specified by the contract. (Id. at ¶ 67). Plaintiffs in April 2008 filed a petition in the Court of Common Pleas of Lackawanna County to enforce the settlement agreement. (Id. at ¶ 68). On July 29, 2008, at a hearing before Judge Robert Mazzoni of the Court of Common Pleas, the parties agreed to a supplemental settlement agreement. (Id. at ¶ 71). Jack Williams Tire agreed to increase the height of the berm and obtain approval from the Borough and Planning Commission to modify its existing plan. (Id.). Judge Mazzoni ordered the parties to comply with this new agreement. (Id.).

Jack Williams Tire then attempted to modify the addition plan approved by the Zoning Commission in August 2008. (Id. at ¶ 72). The company sought four modifications to the existing plan: (1) elimination of a chain link fence; (2) removal of interior landscaping; (3) inclusion of a new access driveway; and (4) an increase in height of the berm by six feet. (Id.). The first three requests benefitted Jack Williams Tire. (Id.). The fourth request benefitted the plaintiffs. (Id.). Edward Zaloga attended a Zoning Commission hearing on August 8, 2008 to request modification of the Jack Williams plan. (Id. at ¶ 73). He also protested the Commission's conduct and procedures. (Id.).

The Zoning Commission retained Michael Pasonick as an engineering consultant, and he examined the proposed changes to the Jack Williams plan. (Id. at ¶ 74). He sent the Commission a letter on August 18, 2008. (Id.). The letter recommended that the Commission approve the proposed height increase for the berm. (Id.). On August 27, 2008 the Commission held a hearing open to the public. (Id. at ¶ 75). At the hearing, the Commission approved the three modifications that would benefit Jack Williams Tire but "tabled" the proposed modification to the berm height. (Id.). This refusal to approve the berm immediately came despite agreement between plaintiffs and Jack Williams Tire on that change and support from the Borough's engineering consultant. (Id.). The Commission expressed aesthetic concerns about the berm, as well as fears that the height increase could encroach on existing swale and cause storm runoff. (Id. at ¶ 76). On September 24, 2008, Pasonick sent the Commission a revised letter finding that the new berm height would not encroach on a swale or ditch, and would not effect runoff. (Id. at ¶ 77). Pasonick found, however, that the height of the ditch could become "'mountainous'" and offend neighbors' aesthetic sensibilities. (Id.).

On September 24, 2008, the Commission convened a hearing open to members of the public to consider the berm height modification. (Id. at ¶ 78). The Commission denied this requested modification to the Jack Williams Tire plan, even though plaintiffs and Jack Williams Tire had supported the heightened berm and the Commission had already approved the other modifications to the plan. (Id.). The modifications the Commission approved all benefitted Jack Williams Tire. (Id.). Plaintiff Edward Zaloga attended this meeting and protested the Commissions' decision, as did Moosic Township Solicitor Christopher Powell, who warned the Commissioners that failing to approve the modification would violate a court order and subject them to contempt-of-court charges. (Id. at ¶¶ 79-80). The Scranton Times-Tribune published an article about this meeting on September 25, 2008. (Id. at ¶ 82).

In December 2008, Judge Mazzoni held a conference with Zoning Commission members and suggested that the Borough hold a public meeting about the proposed berm height modification. (Id. at ¶ 83). On December 22, 2008, the Borough Council convened such a meeting. (Id. at ¶ 84). The supposed purpose of the meeting was to gain the input of local residents on the proposed modification of the berm, but the Council provided plaintiffs and other local residents with only a few hours notice of the hearing. (Id. at ¶ 84). Plaintiffs contend that this failure to provide notice of a meeting violated Pennsylvania law. (Id. at ¶¶ 84-86). Plaintiffs also allege that at this meeting, Defendant Mercatili stated that neighbor's feedback would guide the Council's decision about whether to approve the zoning modification. (Id. at ¶ 87). Mercatili also admitted that more people would have attended the hearing if more notice had been given, and if the meeting were not scheduled three days before Christmas. (Id. at ¶ 88). Plaintiffs allege that this failure to provide proper notice "suppressed" residents' ability to attend and be heard at the public meeting. (Id. at ¶ 89). They also allege that the Council took these actions to retaliate against plaintiffs and to interfere with the use and enjoyment of their property. (Id. at ¶ 90).

On March 17, 2009, Plaintiff Edward Zaloga filed pro se objections to the nomination petitions of Defendant Mercatili and Segilia in the Court of Common Pleas of Lackawanna County, Pennsylvania. (Id. at ¶ 91). He alleged that both Segilia and Mercatili were ineligible for public office because they had both pled nolo contendre to various criminal charges in December 1992. (Id.). On April 9, 2009, Plaintiff Jeanne Zaloga became frightened when she observed two unidentified men on plaintiffs' property. (Id. at ¶ 92). These two men had previously identified themselves as "'surveyors.'" (Id.). Edward Zaloga called the police, and the responding officer ejected the two men from plaintiffs' property. (Id. at ¶ 93). The responding officer informed Zaloga that the men worked for "'Design Consultants'" which had been hired to do unidentified work on behalf of John Brazil, the Borough Solicitor. (Id.).

On April 27, 2009, a member of the Lackawanna County Prison Board contacted Edward Zaloga. (Id. at ¶ 94). The Prison Board oversees the Lackawanna County Prison, where Zaloga's company has a contract to provide medical and health services. (Id.). This board member told Zaloga that Segilia and Defendant Mercatili were upset with plaintiffs' opposition to their decisions on the Jack Williams Tire facility. (Id. at ¶ 95). The two men wanted the Prison Board member to oppose renewing the contract Zaloga's company had with the prison. (Id.). Another prison board member informed Zaloga of similar statements Segilia and Mercatili made to him. (Id. at ¶ 96). The two men agreed to support the Prison Board member's political campaign if he voted against renewing the contract. (Id.). Plaintiffs allege that these attempts to interfere with Correctional Care's contract with the prison continued on numerous other occasions. (Id. at ¶ 97).

Plaintiff filed the instant six-count complaint on December 21, 2010. Count I alleges that defendants violated Plaintiff Edward Zaloga's free-speech rights by refusing to allow him to speak at council meetings on May 8, May 16, and May 23, 2007 and by refusing to allow him to present evidence at a public meeting on November 13, 2007. Count II alleges that plaintiffs engaged in protected speech during their frequent protests about zoning violations and Zoning Commission policies, and that the defendants retaliated against plaintiffs for this speech by allowing Jack Wilson Tire's zoning violations to continue, refusing to allow plaintiffs to speak at public meetings, approving requests from Jack Williams Tire that violated plaintiffs' property rights, and failing to approve modifications to the zoning plan.

Defendants also allegedly retaliated by sending men to trespass on plaintiff's property and by opposing renewal of Correctional Care's contract with Lackawanna County. Count III alleges a violation of plaintiff's substantive due process rights through defendants' interference with plaintiffs' property and free-speech rights. Count IV alleges a conspiracy to violate plaintiffs' constitutional rights in violation of 42 U.S.C. ยง 1983. Count V alleges a common-law ...


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