United States District Court, M.D. Pennsylvania
Decided March 19, 2015
For Francene Tearpock-Martini, Plaintiff: Barry H. Dyller, LEAD ATTORNEY, Law Office of Barry H. Dyller, Wilkes-Barre, PA.
For Shickshinny Borough, Jule Moore, Michael Steeber, Rosalie Whitebread, James Wido, Defendants: John J. Mahoney, Siana Bellwoar & McAndrew LLP, Chester Springs, PA.
James M. Munley, UNITED STATES DISTRICT JUDGE.
Before the court for disposition is the defendants' motion to dismiss plaintiff's amended complaint. The motion has been fully briefed and is ripe for disposition.
This case involves allegations of civil rights violations in the placement of a sign by the defendants near the plaintiff's property. Plaintiff Francene Tearpock-Martini owns real property in Shickshinny, Pennsylvania. (Doc. 17, Am. Compl. ¶ 6). She has owned the property since May 25,
2005. (Id.) Plaintiff's property is bordered by two rights of way, one belonging to the Commonwealth of Pennsylvania and one belonging to Defendant Shickshinny Borough (hereinafter " Shickshinny" ). (Id. ¶ 7). From her home, plaintiff can view the rights of way. (Id. ¶ 8).
In 2008, a pastor of a Shickshinny church told plaintiff that he had ordered a sign for his church with the intention of placing it on her property. Plaintiff told him that she did not consent to the placement of the sign. (Id. ¶ 9). At a July 2008 meeting of the defendant Shickshinny Borough Council, plaintiff informed the entire borough council that she did not approve of placing the church sign on her property. (Id. ¶ 11).
The borough council, of which plaintiff was a member, voted to approve the sign's installation. (Id. ¶ 12). Defendants Jule Moore, Michael Steeber, Rosalie Whitebread and James Wido (hereinafter " council member defendants" ) are all borough council members who voted to approve the sign. (Id. ¶ 13).
Shickshinny Borough street workers and Defendant Wido installed the sign on the rights of way that border plaintiff's property on August 18, 2008. (Id. ¶ 14). The sign reads: " Bible Baptist Church Welcomes You!" (Doc. 17-3, Ex. 3 to Am. Compl., Photograph of Sign). It has a directional arrow with " 1 block" written on it. (Id.) The sign is blue with white letters. (Id.) It also features a gold cross and what appears to be a white Bible. (Id.)
To protest the placement of the sign, plaintiff placed her own sign in front of it. Plaintiff's sign read: " This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!" (Doc. 17, Am. Compl. ¶ 15). The Shickshinny Borough's Code Enforcement Officer told plaintiff to remove her sign. (Id. ¶ 16). The church sign eventually fell down. (Id. ¶ 17). The town re-installed the sign on the rights of way and did so with heavy equipment and poured concrete. (Id. ¶ 19). The defendants have ratified their installation and maintenance of the sign repeatedly. (Id. ¶ 21).
Based upon these facts, plaintiff filed a three-count amended civil rights complaint pursuant to 42 U.S.C. § 1983. Count I asserts an Equal Protection Clause claim; Count II contends that the defendants' threats to prosecute her for erecting her own sign on her property violated the Establishment of Religion Clause of the First Amendment to the United States Constitution; Count III avers that the defendants suppressed plaintiff's speech in violation of the First Amendment to the Constitution by threatening to prosecute her for erecting her own sign on her own property protesting the defendant's actions.
Defendants filed a motion to dismiss the amended complaint, which this court granted on the basis of the statute of limitations. (Doc. 28, Memo. & Order of Aug. 19, 2013). The plaintiff appealed the court's decision to the United States Court of Appeals for the Third Circuit. (Doc. 29, Not. of Appeal). The Third Circuit affirmed in part and vacated in part and remanded. (Doc. 31, Judgment). The Third Circuit affirmed our dismissal of Counts One and Three, but reversed with regard to our dismissal of Count Two. Thus, the sole remaining Count is Count Two, a claim that defendants actions amounted to a violation of the Establishment of Religion Clause of the First Amendment to the United States Constitution.
After the case had been remanded to this court, the defendants filed an amended motion to dismiss the amended complaint. Specifically, the defendants address the merits of the plaintiff's Count Two establishment of religion claim. ...