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Shahid v. Borough of Darby

United States District Court, Third Circuit

September 18, 2013

ABDUS SHAHID
v.
BOROUGH OF DARBY

MEMORANDUM OPINION

J. WILLIAM DITTER, JR., J.

This is a pro se civil rights action filed pursuant to 42 U.S.C. § 1983 by plaintiff, Abdus Shahid, a citizen of the United States who was born in Bangladesh. Shahid claims the Borough of Darby discriminated against him based on his race, color and national origin by refusing to grant the permits necessary for Shahid to rent units in his non-residential warehouse. He claims Borough representatives made various statements to him and others that the Borough would not allow Shahid to do business in the area because he was from a foreign country and they only wanted African-Americans to do business in the Borough. He claims this is evidence that the Borough had a policy and/or custom of discrimination based on race, color and national origin.

A non-jury trial was held on Monday, September 16, 2013, during which testimony was received from Shahid, Borough Council President Janice Davis, Borough Manager Mark Possenti, and former Chief Code Officer Joseph Nerelli At the conclusion of the trial, I took this matter under advisement. This memorandum sets forth my decision in favor of the defendant and the specific findings of fact and conclusions of law that support this decision.

A. Findings of Fact

1. Plaintiff Abdus Shahid is a naturalized citizen of the United States of America and a native of Bangladesh.

2. Shahid’s case is entirely dependant on his credibility and I find him not credible. I make this finding based on my observations of him during trial, the substance of his testimony at trial, and my conclusion that the invoice he produced during discovery in this case and the invoices he produced during discovery in Shahid v. Borough of Eddystone, No. 11-CV-2501) are fraudulent. Where the testimony of Shahid differs from the testimony of the defendant’s witnesses, I have credited the testimony of the defendant’s witnesses.

3. On January 26, 2006, Shahid purchased a non-residential warehouse located at 850 Summit Street, in the Borough of Darby, Commonwealth of Pennsylvania. The property has ten separate rental units and is located across the street from the Borough office. At the time of purchase, Shahid was a resident of New York and he remains a resident of New York.

4. When Shahid purchased the warehouse one unit was occupied. Since Shahid purchased the warehouse, three units have been occupied – but not always the same three units and not always by the same tenants.

5. Borough Ordinance No. 118.5 provides as follows:

No building may be occupied for a nonresidential use by a person unless the owner or tenant thereof shall first have applied for and received a nonresidential occupancy permit application from the Code Official. The application for such occupancy permit shall be submitted to the Department of Code Enforcement with the appropriate fee not later than the Friday before the regularly scheduled monthly committee meeting of Borough Council, at which time the applicant is required to attend in order to discuss the application with Council. Said application will then be voted on at the next scheduled Council meeting.

6. Since purchasing the property, Shahid has, on several occasions, allowed persons to conduct business in the warehouse without a non-residential occupancy (“NRO”) certificate, in violation of Borough Ordinance No. 118.5.

7. Joseph Nerelli (a Caucasian) was the Borough’s Chief Code Enforcement Officer and a member of the Borough Ordinance Committee from January, 2006, through August, 2011. The Borough Ordinance Committee conducts an initial review of NRO applications and then sends them to the Borough Council for further action.

8. Mark Possenti (a Caucasian) is the Borough Manager and served in that capacity at all times relevant to this action. He supervises the Chief Code Enforcement Officer.

9. Janice Davis (an African-American) is the Borough Council President and served in that capacity at all ...


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