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Michael S. Cooper, and Christine L. Cooper T/D/B/A South Hanover v. John Menges. Jeffrey Garvik

October 3, 2011

MICHAEL S. COOPER, AND CHRISTINE L. COOPER T/D/B/A SOUTH HANOVER AUTOMOTIVE LLC, PLAINTIFFS
v.
JOHN MENGES. JEFFREY GARVIK, PENN TOWNSHIP, DEFENDANTS



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

MEMORANDUM

I. Introduction

Plaintiffs, Michael S. Cooper and Christine L. Cooper, t/d/b/a South Hanover Automotive LLC ("SHA"), filed a complaint against defendants, Penn Township; John Menges, a Penn Township zoning officer; and Jeffrey Garvik, a Penn Township supervisor. Plaintiffs allege that Defendants imposed onerous approval standards and procedural requirements on them when they were seeking approval to modify their SHA property because Michael Cooper exercised his First Amendment right to petition the government by complaining about treatment he received from Menges. Plaintiffs make the following four claims: (1) a First Amendment retaliation claim; (2) a substantive due process claim; (3) a procedural due process claim; and (4) an equal protection claim.

Defendants have filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that Plaintiffs' complaint fails to provide any factual specificity as to their claims.

They also argue that the procedural and substantive due process claims fail on the merits.

II. Standard of Review

Under Fed. R. Civ. P. 12(b)(6), we are authorized to dismiss a complaint for "failure to state a claim upon which relieve can be granted." In evaluating the complaint, we must "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). In addition, we may "draw all reasonable inferences in favor of the non-moving party." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929. "The plausibility standard is not akin to a 'probability requirement,' but it 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). Hence, "'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Iqbal, 129 S.Ct. at 1949).

III. Background

Plaintiffs allege as follows. Plaintiffs run South Hanover Automotive LLC, ("SHA"), an automotive repair service in Penn Township, Hanover, Pennsylvania. Compl. ¶ 10. On May 5, 2009, Michael Cooper "placed a call to the Penn Township municipal building to complain about thick clouds of dust . . . blowing onto his property and business (SHA) from across the street." Id. ¶ 12. Responding to the phone call, defendant Menges came to SHA on May 9, 2009,*fn1 and "immediately" began to "berate, attack, and threaten" Michael Cooper. Id. ¶¶ 13-14, 17. Cooper "was taken aback and was intimidated, particularly because plaintiffs had been seeking improvements to their property and were making application for permission to make the necessary changes in front of Penn Township." Id. ¶ 15. "Plaintiffs had previously begun and participated in an effort, pro se, to seek an opportunity to improve their property consistent with the same types of changes approved for other businesses near by." Id. ¶ 16. "These changes included improvements in building structures, parking services, and minor enlargements of square footage allotments to accommodate plaintiffs' successful and growing business." Id.

After Menges left, Michael Cooper telephoned Menges's supervisor, defendant Garvik, and "complained to Garvik that Menges had been threatening, rude, and discourteous without any reason whatsoever to behave in that manner." Id. ¶¶ 17-18. "Gavik's response . . . was to laugh at [Cooper] and hang up." Id. ¶ 19.

In the following subparagraphs, paragraph 20 sets forth Defendants' alleged misconduct:

a. Plaintiffs were subjected to unequal and disparate treatment as compared to businesses seeking similar changes and improvements. Two examples of these businesses are "Wetzel Plumbing" and "A2Z Motorsports." These businesses sought and gained approval for the same type of changes to improve and enlarge their parking and buildings. In doing so these businesses were not required to meet the same requirements and were not harassed and subjected to more harsh and demanding unlawful mistreatment in hearings and procedures before the municipal defendant as were the plaintiffs.

b. The plaintiffs were subjected to different procedural requirements in the form of additional hearings and planning requirements which were summarily wa[i]ved for other citizens ...


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