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William Tomino, Individually v. City of Bethlehem; John R. Lezoche

February 8, 2012


The opinion of the court was delivered by: James Knoll Gardner United States District Judge


The matter before the court is Defendants City of Bethlehem and John R. Lezoche's Motion for Summary Judgment, filed October 21, 2011.*fn1

Plaintiff's Answer to Motion of Defendants for Summary Judgment was filed on November 23, 2011.*fn2


For the following reasons, I granted defendants' motion for summary judgment. Specifically, I concluded that plaintiff's claim against defendant Lezoche was barred by the statute of limitations. Accordingly, I dismissed plaintiff's Amended Complaint against defendant Lezoche with prejudice.

Moreover, in the alternative, even if plaintiff's equal protection claim against defendant Lezoche had been timely, it would have failed on the merits because plaintiff did not provide sufficient evidence that defendant Lezoche treated plaintiff differently than other similarly situated persons.

In addition, I granted summary judgment on plaintiff's claim against defendant City of Bethlehem because plaintiff did not provide sufficient evidence that the City had an official custom or policy which violated any of plaintiff's constitutional rights. Accordingly, I entered judgment in favor of defendant City and against plaintiff.

As a result, I dismissed as moot both defendant Lezoche's claim of qualified immunity and plaintiff's claim for punitive damages.


Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331.


Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because the events giving rise to plaintiffs' claims allegedly occurred in Bethlehem, Northampton County, Pennsylvania, which is within this judicial district.


Plaintiff, William Tomino, Individually and trading as Tomino's Deli, initiated this action on December 30, 2008 by filing a four-count civil Complaint*fn3 against defendant City of Bethlehem ("the City"); defendant John R. Lezoche, Individually and as Zoning Officer for the City of Bethlehem; and defendants "John Does 1-100". Plaintiff's claims arose from actions allegedly taken by defendants in the context of plaintiff's operation of Tomino's Deli in Bethlehem, Pennsylvania.

Defendants filed a motion to dismiss plaintiff's original Complaint on March 9, 2009. By my Order and accompanying Opinion dated and filed March 31, 2010, I granted in part and denied in part defendants' motion to dismiss. Specifically, I dismissed all four claims against defendant Lezoche without prejudice for plaintiff to replead those claims to allege facts supporting the conclusion that his claims against defendant Lezoche were timely.

I also dismissed plaintiff's claim in Count I against the City brought pursuant to 42 U.S.C. § 1983 (for violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution), plaintiff's claim in Count II pursuant to 42 U.S.C. § 1985 (for conspiracy to violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment), and plaintiff's pendent state law claims in Counts III and IV for civil conspiracy and abuse of process, respectively, all without prejudice for plaintiff to replead his claims in accordance with my March 31, 2009 Opinion. I denied defendants' motion to dismiss to the extent that it sought dismissal of plaintiff's claim in Count I brought pursuant to 42 U.S.C. § 1983 for equal protection violations.

On April 21, 2010 plaintiff filed an Amended Complaint*fn4 against the City of Bethlehem and John R. Lezoche, Individually and as Zoning Officer for the City of Bethlehem. The Amended Complaint brought an action pursuant to 42 U.S.C. § 1983 alleging equal protection and procedural due process violations, and deprivation of privileges and immunities granted by the United States Constitution. It also included pendent state-law claims for civil conspiracy and abuse of process.

On May 5, 2010 defendants filed a motion to dismiss the Amended Complaint. By my Order dated March 22, 2011 and filed March 23, 2011 I granted in part and denied in part defendants' motion to dismiss the Amended Complaint.

Specifically, I dismissed in their entirety Count II of the Amended Complaint (civil conspiracy) and Count III (abuse of process). However, I denied defendants' motion to dismiss plaintiff's equal protection claims against defendants Lezoche and the City in Count I of the Amended Complaint. Accordingly, I gave defendants until April 25, 2011 to answer Count I of plaintiff's Amended Complaint. On April 25, 2011, Defendants' Answer to Plaintiff's Amended Complaint with Affirmative Defenses was filed.


In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003).

Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000).

Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings. Rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).


Based upon the pleadings, record papers, excerpts from plaintiff's and defendant Lezoche's depositions,*fn5 exhibits, and defendants' statement of undisputed material facts,*fn6 the pertinent undisputed facts for purposes of the motion for summary judgment are as follows.

On December 1, 1997 Joan Tomino and plaintiff William Tomino purchased properties located at 1033, 1035 and 1037 Main Street, Bethlehem, Pennsylvania ("Property"). The Property had historically been used as a barbershop and a tailor shop. The Property was located in an R-M Residential Zoning District under the provisions of the Zoning Ordinance of the City of Bethlehem.*fn7

A Codified Zoning Ordinance of the City of Bethlehem, Ordinance No. 2210 became effective on September 25, 1970 and was amended on March 3, 2008 ("Zoning Ordinance"). The purpose of the Zoning Ordinance was to promote public health, safety, morals and the general welfare of its citizens.*fn8

The purpose of an R-M Zoning District was to provide for high density residential uses and compatible residentially-oriented non-residential uses. The R-M Zoning District permitted only the following uses as of right: (1) any use in R-G Residential District*fn9 ; (2) single-family, semi-detached dwellings; (3) two family detached dwellings; and (4) two family semi-detached dwellings.*fn10

Section 1325.05 of the Zoning Ordinance established the power and duty of the Zoning Hearing Board ("Board") to decide any question involving the interpretation of ordinances. Section 1325.07 established the power and duty of the Board to approve special exceptions in the best interests of the City of Bethlehem, the convenience of the community, and the public welfare. Any person affected by the Zoning Ordinance was allowed to appeal a Board decision to the Court of Common Pleas of Lehigh or Northampton County.*fn11

After purchasing the Property, Mr. Tomino requested a special exception for change of non-conforming use in order to change the Property from a vacant former barber shop and tailor shop to a delicatessen. A delicatessen was a non-conforming use in an R-M Zoning District.*fn12 Mr. Tomino proposed to operate the delicateesen at the Property with no seating or eating area inside or outside.*fn13

On April 23, 1998 a hearing was held to consider Mr. Tomino's request for a special exception. Parking was a problem in the neighborhood where the Property was located, and several neighboring property owners testified in opposition to Mr. Tomino's request for a special exception.*fn14

However, prior to a decision being reached by the Board, Mr. Tomino and the neighbors who testified at the hearing agreed to specific conditions being imposed on the Property. Specifically, the agreed conditions were that: (1) no grill or any cooking device requiring a fan could be used; (2) improvements to the building would be made prior to opening the business; (3) the hours of operation of the business would be from 10:00 a.m. to 6:00 p.m. on Monday through Friday, 11:00 a.m. through 6:00 p.m. on Saturday and closed on Sunday; (4) no pinball machines, video or arcade games would be permitted;

(5) no cigarette or lottery ticket sales would be permitted;

(6) Mr. Tomino would waive his right to request any changes in these conditions unless there was a change in the use of the Property; and (7) the neighboring property owners waived their right to appeal this decision to the Court of Common Pleas.*fn15

At the April 23, 1998 Zoning Board hearing, Mr. Tomino testified that he had adequate parking for the area and that eight parking spots available for the Property could be used by tenants of the other buildings which he owned at the Property. Mr. Tomino further testified that he did not anticipate expanding the parking lot. Mr. Tomino also testified that the delicatessen would be a take-out facility and that he would not place any benches or tables outside. Mr. Tomino planned to have two employees help run the delicatessen.*fn16

The Board approved Mr. Tomino's request for a special exception subject to the specific conditions imposed by the agreement reached between Mr. Tomino and the neighboring property owners.*fn17

In January 1999 Mr. Tomino opened Tomino's Deli. Later that year he sought a variance to expand the size of his delicatessen by more than 50 percent.*fn18 He also sought a variance from the parking requirements within an R-M Residential District.*fn19

On October 27, 1999 a public hearing was held to consider Mr. Tomino's requests.*fn20 Each of his requests was denied. Specifically, the Board reasoned that expansion of the delicatessen and a variance from parking requirements would be a detriment to the welfare of the public and surrounding area.*fn21

In 2000 Mr. Tomino again requested a variance to expand his delicatessen size by more than 50 percent and a variance from the off-street parking requirements. Additionally, he sought a use variance to change the delicatessen facility to a delicatessen/restaurant. The Board denied Mr. Tomino's requests.*fn22

In 2002 Mr. Tomino sought approval for a 270 square foot, one-story addition for his delicatessen.*fn23 Additionally, he requested to extend the hours of operation of the delicatessen and again requested to change the delicatessen to a restaurant. On March 27, 2002 a hearing was held before the Board to consider Mr. Tomino's requests.*fn24

On April 2, 2002 defendant John R. Lezoche, the Zoning Officer, wrote to Mr. Tomino, advising him that his appeal for a special exception to expand lawful use was granted with certain conditions, but that his request to increase hours of operation was denied. Specifically, Mr. Tomino's request to expand to include a bathroom and storage was approved with the conditions that there could be no sit-down eating at Tomino's Deli. Mr. Tomino did not appeal the March 27, 2002 Board decision.*fn25

On October 15, 2003 Bethlehem Councilman Robert J. Donchez prepared a memo to defendant Lezoche advising of complaints regarding deliveries being made from Mr. Tomino's delicatessen between the hours of 12:00 midnight and 3:00 a.m. on Fridays and Saturdays. Mr. Lezoche confirmed that deliveries were being made outside the permitted hours of operation.*fn26

On November 23, 2003 Mr. Lozoche issued a Cease and Desist Order for violations concerning Mr. Tomino's delivery service after allowable business hours and for installing a ...

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