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McLaughlin v. Forty Fort Borough

United States District Court, M.D. Pennsylvania

November 26, 2014

JEFFREY McLAUGHLIN, et al., Plaintiffs,
v.
FORTY FORT BOROUGH, et al., Defendants

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[Copyrighted Material Omitted]

Page 633

For Jeffrey McLaughlin, Carol McLaughlin, Plaintiffs: William E. Vinsko, Jr. , LEAD ATTORNEY, Vinsko & Associates, P.C., Wilkes-Barre, PA.

For Forty Fort Borough, Forty Fort Borough Zoning Hearing Board, Defendants: Harry G. Mahoney, May Mon Post, LEAD ATTORNEYS, Deasey, Mahone Valentini & North LTD, Philadelphia, PA.

Page 634

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge.

I. Introduction

Before the Court is a Motion to Dismiss, or in the alternative, for Summary Judgment (Doc. 34) filed by Defendants Forty Fort Borough (the " Borough" ) and Forty Fort Zoning Hearing Board (the " Board" or " ZHB" ) (collectively, " Forty Fort Defendants" ). For the reasons set forth below, Forty Fort Defendants' Motion to Dismiss will be converted into a Motion for Summary Judgment with regard to Plaintiffs n' procedural due process claims alleged in Count III and granted. The Court will deny Forty Fort Defendants' Motion to Dismiss with respect to Plaintiffs' equal protection claims alleged in Count II.

II. Procedural History

Plaintiffs Jeffrey McLaughlin and Carol Skrip initiated this action on October 29, 2010 in the Luzerne County Court of Common Pleas. (See Notice of Removal, Doc. 1, ¶ ¶ 1-3). After they amended their Complaint to allege violations of the Fourteenth Amendment, Forty Fort Defendants removed the matter to federal court. (See id. at ¶ ¶ 4-5). The Amended Complaint (Doc. 1-2, Ex. C) sought: damages for violations of the Pennsylvania Municipalities Planning Code (" MPC" ) and Forty Fort Zoning Ordinances (Count I), enforcement

Page 635

of the MPC and Forty Fort Zoning Ordinances through a mandamus action (Count II), and damages for violations of Plaintiffs' constitutional rights (Count III).

On August 9, 2013, this Court granted Forty Fort Defendants' Motion to Dismiss Plaintiffs' Amended Complaint but granted Plaintiffs leave to amend. (Mem. Op., Doc. 22, at 1). Specifically, the Court instructed Plaintiffs to allege: (1) a cause of action against Cynthia Millington Brandreth, Mark Millington, Michelle Millington, and Scott Millington t/d/b/a Compass Rose Group (collectively, " Millington Defendants" ) and May Brands, LLC; (2) facts sufficient to make clear whether Plaintiffs had a property interest in their home at any point prior to the due process violations alleged; and (3) facts showing that Forty Fort Defendants treated other similarly situated homeowners more favorably. ( Id . at 32-33).

Plaintiffs filed a Second Amended Complaint (Doc. 27) alleging that Millington Defendants and May Brands, LLC violated the MPC and Forty Fort Zoning Ordinances (Count I) and that Forty Fort Defendants violated their Fourteenth Amendment rights to procedural due process (Count II) and equal protection (Count III).[1] Forty Fort Defendants filed a Motion to Dismiss Counts II and III of the Second Amended Complaint, or in the alternative, for Summary Judgment (Doc. 34). Forty Fort Defendants (Docs. 34, 44) and Plaintiffs (Doc. 40) have filed briefs. ...


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