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Zaloga v. Borough of Moosic

United States District Court, M.D. Pennsylvania

June 16, 2015

JEANNE ZALOGA, EDWARD ZALOGA, D.O., C.P.A., CORRECTIONAL CARE, INC., Plaintiffs,
v.
BOROUGH OF MOOSIC, MOOSIC BOROUGH COUNCIL, MOOSIC BOROUGH PLANNING COMMISSION, MOOSIC BOROUGH ZONING BOARD OF ADJUSTMENTS, JOSEPH MERCATILI, JOSEPH DENTE, THOMAS HARRISON, BRYAN FAUVER, JAMES DURKIN, WILLARD HUGHES, Defendants.

MEMORANDUM OPINION

Matthew W. Brann, United States District Judge

I. BACKGROUND

This memorandum opinion is the dispositive opinion in response to the Defendants’ motion for summary judgment. The motion will be granted in part and denied in part.

The Plaintiffs are husband and wife, Edward and Jeanne Zaloga. Edward Zaloga is a physician whose medical services are provided by his company, Correctional Care Inc., also a Plaintiff here.

Defendants are the Borough of Moosic, a municipality situate in Lackawanna County, Pennsylvania; the Moosic Borough Council; the Moosic Borough Planning Commission; the Moosic Borough Zoning Board of Adjustments; Joseph Mercatili, individually and in his official capacity as President of Moosic Borough Council; Joseph Dente, individually and in his official capacity as Vice President of Moosic Borough Council and member of the Moosic Borough Planning Commission; Thomas Harrison, individually and in his official capacity as Moosic Borough Manager; Bryan Fauver, individually and in his official capacity as Chairman of Moosic Borough Planning Commission; James Durkin, individually and in his official capacity as Moosic Borough Zoning and Enforcement Officer; and Willard Hughes, a Borough codes officer.

II. DISCUSSION:

A. Undisputed Facts

Before the Court turns to the undisputed facts relevant to the instant causes of action, the Court will first discuss some background facts. Prior to the parties’ dispute, there were disputes between the Zalogas and a non-party business, Jack Williams Tire Company. Although those facts are not directly related to the instant cause of action, they are tangentially related and necessary for a proper understanding of the complaint.

Interactions between the Zalogas and non-party Jack Williams Tire Company

In 1994, Dr. and Mrs. Zaloga moved into their home at 910 Johns Drive, Moosic, Pennsylvania. Behind the Zalogas’ home is a narrow road known as Carey Lane. On the other side of Carey Lane is Jack Williams Tire.

In 2007, the Borough of Moosic’s Planning Commission approved an expansion of Jack Williams Tire’s facility by issuing a building permit to Jack Williams Tire. The Zalogas entered into an agreement with Jack Williams Tire regarding the height of a “berm” referenced in the building permit. In April 2008, the Zalogas filed suit in the Court of Common Pleas of Lackawanna County alleging that Jack Williams Tire breached the agreement between the parties by building the berm to 974 feet above sea level, as opposed to 982 feet; failing to prevent truck operation during non-business hours; and failing to remove vegetation between the two properties. In July 2008, the Zalogas and Jack Williams Tire entered into a settlement agreement that required the berm to built to a height of 980 feet above sea level.

Subsequently, however, in October 2008, the Moosic Borough Planning Commission denied Jack Williams Tire’s request to increase the height of the berm. Jack Williams Tire appealed the decision of the Planning Commission to the Lackawanna County Court of Common Pleas; on November 20, 2009, Judge Robert A. Mazzoni affirmed the decision of the Planning Commission.

The Zalogas returned to the Lackawanna County Court of Common Pleas, and filed suit to have the settlement agreement enforced, regarding the same berm height, vegetation, and truck operation issues. On March 30, 2011, Judge Mazzoni denied the Zalogas’ petition. The Zalogas sought reconsideration of this decision, which Judge Mazzoni also denied on April 21, 2011. The Zalogas then appealed to the Superior Court of Pennsylvania. That appeal was subsequently denied on February 7, 2012.

With this background in mind, the Court now turns to the facts that formulate the underlying complaint.

Interactions between the Zalogas and Defendants

In early 2009, Jack Williams Tire appealed the denial of land use conditions, and in anticipation of that hearing, the Moosic Borough Solicitor, John J. Brazil, Esquire sent surveyors out to Jack Williams Tire/Zaloga properties. The parties dispute what business the surveyors were tasked to conduct. The parties do agree that two men went to survey the property, and the Zalogas called the Borough police to have the men leave the property, which the men promptly did after explaining their reason for being there.

The Defendants assert that the surveyors were sent to prepare for a court hearing the Zalogas had initiated by complaining of excessive sound coming from Jack Williams Tire. Mr. Brazil testified at his deposition that believed that the Zalogas had built their home onto Carey Lane beyond their property line, which would explain why they might hear extra noise. ECF No. at 141-4 164. The Zalogas assert that sending the surveyors was a retaliatory action so the Borough could sue the Zalogas for having built some of their home on Carey Lane. The Zalogas assert that this was without a doubt retaliatory based on a statement by Mercatili in his deposition that “I would assume that’s why [Solicitor Brazil] did it [sent surveyors] because “if you’re going to accuse somebody of something you better have some knowledge and you have to have a professional person that’s qualified to do that, to state whether that’s on Carey Lane or not, because John couldn’t file a suit against him or do whatever he wants to do if he didn’t have a professional or a guy that’s qualified to do it.” ECF No. 149-4, Exhibit 9 at 161:16-163:7.

On January 6, 2011 the Zalogas again called the police complaining about a truck idling at night. The police officer directed the truck driver to leave the residential area. When asked at his deposition “What did you do in response to this alleged violation?” Defendant Willard Hughes, the current Zoning and Code Enforcement officer for Moosic Borough, responded by saying “I have no jurisdiction on idling of vehicles...I can’t write them –it’s under Pennsylvania Motor Vehicle Code. According to DEP[1], the only people that could issue citations are the State Police and Moosic Police Department.” ECF No. 142-2 at 37-8.

On January 12, 2011, the Zalogas sent a letter to the Borough that complained about the after-hours truck. Defendant Hughes spoke with the president of Jack Williams Tire, Scott Williams. The Plaintiffs dispute what transpired during that conversation between Mr. Hughes and Mr. Williams. Accordingly, the Court views the facts in the light favorable to Plaintiffs as the non-moving party and takes no further facts from the conversation, other than that it is undisputed that it occurred. However, the Court notes that the Defendants assert that Defendant Hughes “tries to work with people in the Borough to give them a chance to correct problems instead of issuing citations, if at all possible, to get compliance faster and to avoid spending “taxpayer monies on magistrate fees and lawyer fees” where unnecessary. ECF No. 139 at 7 ¶ 39. On the other hand, Plaintiffs assert that “Hughes selectively enforces code and zoning violations and, as it relates to the Zalogas, issued a violation notice threatening criminal “charges” without giving any opportunity to first correct a purported violation.” ECF No. 149-1 at 6 ¶ 39.

The parties do agree that Scott Williams contacted the trucking company responsible for the violation, Big M Transportation, which assured Mr. Williams in an e-mail that no further violations would occur. This email was forwarded to Defendant Joseph Dente, Vice President of the Moosic Borough Council and a member of the Moosic Borough Planning Commission.

On February 18, 2011, the Zalogas sent a letter to the Borough complaining about tires stacked outside a different Jack Williams Tire Company location, not the location adjacent to the Zalogas’ home. “Dr. Zaloga admitted that the tires did not affect him in any way.” ECF No. 139 at 9 ¶ 59 and ECF No. 149-1 at 10 ¶ 59. Once again, the parties dispute what then transpired in a conversation between Mr. Hughes and a representative from Jack Williams Tire. Plaintiffs dispute if a citation was issued based on this violation, but the exhibits provided indicate that the Office of Code Enforcement did issue a citation to Jack Williams Tire. See Feb. 23, 2011 Letter, ECF No. 145-7 at 2.

On March 17, 2011, the Zalogas sent a letter to the Borough complaining about a truck idling at 5:30 a.m. Again, a factual dispute arises as to what transpired during a conversation between Mr. Hughes and Scott Williams. Defendants assert that Defendant Hughes again spoke to Mr. Williams, who explained a new employee had been at fault, and that Defendant Hughes issued a written warning. However, Plaintiffs assert that Mr. Brazil instructed Defendant Hughes to not issue a citation or notice of violation.

On March 18, 2011, the Zalogas sent a letter to the Borough complaining that a dumpster was located too close to the Jack Williams Tire facility and that two other dumpsters did not have screens around them. See March 18, 2011 Letter, ECF No. 145-11 at 2-3. Again, the parties dispute what may have transpired in a conversation between Mr. Hughes and Mr. Williams. Mr. Brazil advised Mr. Hughes in a letter that Jack Williams Tire would have sixty (60) days within which it may use the temporary construction dumpster, after which time Mr. Hughes could issue a citation. See March 31, 2011 Letter, ECF No. 145-19 at 2.

On March 21, 2011, the Zalogas sent another letter to the Borough complaining that Jack Williams Tire left its gate open for 90 minutes on a Sunday afternoon and moved vehicles in the parking lot on both a Saturday and a Sunday. Again, the parties dispute what transpired next in a conversation between Mr. Hughes and Mr. Williams.

On August 11, 2011, Jack Williams Tire sent a letter to the Borough complaining that the Zalogas’ basketball hoop was located in a position that resulted in children playing basketball on the street. On August 24, 2011, Mr. Hughes sent the Zalogas a letter explaining that the basketball hoop violated the Borough’s safety ordinances. The Zalogas assert that this letter was “threatening” as it stated that “charges will be filed against you at the Magistrate.” Apparently, the basketball hoop did not, in fact, violate any Borough code, and as a result, Mr. Hughes subsequently retracted his August 24, 2011 letter. The Zalogas assert that the letter was intended to be retaliatory.

On August 19, 2011, the Zalogas sent a further letter to the Borough complaining about the aforementioned berm height. On September 13, 2011, Solicitor Brazil contacted the Borough’s engineer, Howard Ash, about the berm height. In a responsive letter on October 31, 2011, Mr. Ash identified the problems with the berm. Mr. Hughes sent Mr. Ash’s letter to Jack Williams Tire and directed the company to correct the inadequacies with the berm. What transpired next is again in dispute.

On October 18, 2011, Mr. Hughes on behalf of Moosic Borough filed a civil action against Jack Williams Tire; but it was later dismissed.[2] According to Solicitor Brazil in his deposition, the matter was dismissed as improperly filed.

On December 6, 2011, the Zalogas sent a letter to the Borough complaining that Jack Williams Tire was maintaining a junk yard on its property. Mr. Brazil advised that a business can store some of its product outside without it rising to the level of a junk yard. Mr. Hughes did not issue a ...


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