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Frank Potter T/A Reflections v. City of Chester

November 9, 2012

FRANK POTTER T/A REFLECTIONS PLAINTIFF,
v.
CITY OF CHESTER, ET AL.
DEFENDANTS.



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

MEMORANDUM RE: MOTION TO DISMISS

Plaintiff Frank Potter t/a Reflections commenced this civil action by filing a Complaint on April 17, 2012, alleging violations of his rights to due process and equal protection protected by the United States Constitution pursuant to 42 U.S.C. § 1983, as well tortious interference with business, against Defendants the City of Chester, Patrick O'Connell, Officer Chester Murak, and Police Major Joseph Bail, in connection with the closure of Plaintiff's restaurant (ECF No. 1). Presently before the Court are Defendants' Motions to Dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECF Nos. 10, 13, 20). For the reasons that follow, Defendants' Motions are GRANTED with prejudice.

I. Factual and Procedural Background

The following facts are drawn from the Amended Complaint. In 1987, Plaintiff was given approval to open and operate a bar and restaurant at the location of 2813 West 9th Street, Chester, Delaware County, Pennsylvania 19103. (Amend. Compl. at ¶ 11). After the approval, Plaintiff acquired all necessary certificates, licenses, and permits in order to operate the business.

(Id. at ¶ 21). Subsequently, Plaintiff and his son, Charles Fowler,*fn1 formed a corporation for the purpose of "purchas[ing] and sell[ing] liquor and amusements and entertainment" at the location in question. (Id.at ¶ 22). The business has allegedly operated lawfully as a bar and restaurant pursuant to Section 1353.02(f) of the Codified Ordinances of the City of Chester*fn2 (the "Zoning Ordinance") for approximately thirty years. (Id. at ¶ 8).

According to the Amended Complaint, Defendants conspired to permanently shut down Plaintiff's business operations by repeatedly harassing Plaintiff's customers and restricting public access to his property without lawful justification. (Id.at ¶ 31). Some time prior to September 9, 2009, Officer Murak allegedly entered Plaintiff's property on numerous occasions, told Plaintiff that his business would be shut down, and frisked and detained his customers without a court order or any legal authority to do so. (Id. at ¶¶ 12, 14-16). In addition, Officer Murak allegedly brought criminal charges against Charles Fowler for the offense of risking a catastrophe even though he knew that no criminal act had occurred. (Id. at ¶19).

On or about September 9, 2009, Plaintiff entered into a conditional licensing agreement with the Commonwealth of Pennsylvania Liquor Control Board ("LCB") in which Plaintiff agreed to no longer sell alcoholic beverages and to sell the business's liquor license. (Id. at ¶ 23). Plaintiff continued to operate his business until the City of Chester Health Inspector advised him, on or about November 20, 2009, that the property needed to be rezoned because Plaintiff had sold his liquor license. (Id. at ¶¶ 25-26). Subsequently, on November 23, 2009, Officer O'Connell and members of the Chester Police Department, as well as agents of the City of Chester, arrived at the location and shut the business down pursuant to a court order. (Id. at ¶ 28). Thereafter, on November 27, 2009, Major Bail and a number of Chester police officers allegedly went to the property and again shut it down by roping the business off with police tape and preventing the patrons from entering or leaving the restaurant because Plaintiff had surrendered the business's liquor license. (Id. at ¶ 29). Plaintiff also states that despite having a current Certificate of Occupancy ("CO")*fn3 , on November 23, 2009, Defendants represented to Plaintiff that the business was operating without a CO and because of such, the business needed to be shut down until one was obtained. (Id. at ¶¶ 32, 34).

Plaintiff claims that the purpose of Defendants' conduct is to drive Plaintiff out of business to benefit an unnamed takeout pizza restaurant located at 2801 West 9th Street, Chester, Delaware County, Pennsylvania 19013, which Plaintiff claims is "politically favored" and "police friendly." (Id. at ¶ 43). Accordingly, Plaintiff seeks redress for Defendants' violation of the Due Process Clause of the Fourteenth Amendment through the arbitrary and capricious enforcement and interpretation of the Zoning Ordinance as well as the violation of the Equal Protection Clause of the Fourteenth Amendment by treating similarly situated businesses differently without a rational basis. (Id. at ¶¶ 35-39). Plaintiff further seeks redress for Defendants' tortious inference with his business and seeks punitive damages for the aforementioned offenses. (Id. at ¶¶ 40-51).

On June 13, 2012, the City of Chester, Officer Murak, and Major Bail filed a Motion to Dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 10). On June 15, 2012, Officer O'Connell filed a similar Motion (ECF No. 13), incorporating the other Defendants' Motion by reference. On July 13 and July 23, 2012, respectively, Plaintiff filed Responses in Opposition to Defendants' Motions (ECF Nos. 14, 15).

On October 5, 2012, this Court issued an Order concluding that Plaintiff's factual allegations were insufficient. (ECF No. 16). Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, the Court gave leave to Plaintiff to file an amended complaint for the purpose of alleging additional facts satisfying the "shocks the conscience" test for his substantive due process claim and/or "irrational and wholly arbitrary" test for his equal protection claims. Plaintiff filed an Amended Complaint on November 5, 2012 (ECF No. 19)*fn4 . On November 6, 2012, Defendants, City of Chester, Officer Murak, and Major Bail filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 20).

II. Legal Standards

A. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 ...


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