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Flanders v. Dzugan

United States District Court, W.D. Pennsylvania

July 24, 2015

FRED DZUGAN, an adult individual, and FORD CITY BOROUGH, a Pennsylvania Municipal Corporation, Defendants.



Presently before the Court is Plaintiff's "Motion to Strike Expert Report and Exclude Opinion Testimony of Susan Tymoczko" under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-93 (1993). (Docket No. 95). Each party submitted briefing and the Court held oral argument on the Motion on May 7, 2015. Afterwards, each party submitted supplemental briefing. (Docket Nos. 121, 127). The Motion is now ripe for disposition.


Plaintiff Edward L. Flanders, Jr. ("Flanders") owns and operates a business, ELF Appliance & Service, in Ford City Borough that sells and services home appliances. (Docket No. 105 ¶ 1). The Defendants in this lawsuit are the Ford City Borough ("the Borough") and Fred Dzugan ("Dzugan"), a former Building Code Official in Ford City. ( Id. at ¶ 2). Flanders brought this lawsuit under 42 U.S.C. § 1983 for alleged constitutional violations arising out of the building permit approval process. (Docket No. 22). In defending the lawsuit, Defendants submitted an Expert Report ("Report") from Susan Tymoczko ("Tymoczko"). (Docket Nos. 91, 91-1). Tymoczko is a Senior Planner in the Division of Strategic Planning of the Pittsburgh Department of City Planning. (Docket No. 99). Plaintiff filed a Daubert Challenge to strike the Report and preclude Tymoczko from testifying, arguing that her testimony is not based on reliable methods and that she is not qualified to render an expert opinion. (Docket Nos. 95, 96). Given the facts and circumstances of this case and in light of the standard, Plaintiff's Motion is granted in part and denied in part.

On July 28, 2005, seeking to construct a 10' × 54' addition onto his existing business, Flanders submitted to Dzugan an Application for Permit to Erect a New Building or Structure. (Docket No. 22 ¶ 5). While Dzugan granted an initial permit for the foundation of the building, Flanders' application for the second permit needed to finish construction was denied for failure to submit professional blueprints. ( Id. at ¶¶ 8, 14). Nevertheless, Flanders continued construction on the addition. ( Id. at ¶ 16). A protracted and contentious saga then ensued between Flanders and Dzugan. Dzugan issued a total of four criminal citations to Flanders, as well as a stop work order. (Docket No. 22 ¶¶ 18-46); (Docket No. 111 at 4). Flanders vigorously contested these citations, taking multiple appeals of several. (Docket No. 22 ¶¶ 18-46). Flanders filed the present lawsuit against Dzugan and Ford City Borough in 2012. (Docket No. 1).

The Amended Complaint alleges claims for (1) deprivation of substantive due process in violation of the Pennsylvania Constitution; (2) deprivation of Fourteenth Amendment substantive due process rights pursuant to 42 U.S.C. § 1983; (3) retaliation for exercising rights protected by the Pennsylvania and United States Constitutions; (4) deprivation of equal protection under the Pennsylvania Constitution; (5) deprivation of equal protection pursuant to § 1983; and (6) malicious prosecution under Pennsylvania law. (Docket No. 22). In support of his equal protection claims, Flanders points to a number of other properties in the Borough which he alleges are comparators. These properties, according to Flanders, are similarly situated to his property and received more favorable treatment from Dzugan.[1] (Docket No. 111 at 17-18). For example, one building in Ford City was converted from a residential property to a commercial property to house the business "Jitterbug Java." (Docket No. 112 ¶¶ 98-102). The owners also constructed a ramp to the building. ( Id .). Dzugan (1) allowed construction of the ramp even though he was not certified to do so, and (2) despite having not received professional blueprints, allowed the conversion project to be completed and Jitterbug Java to operate under a Temporary Certificate of Occupancy for five years before eventually requiring the submission of blueprints. (Docket No. 112 ¶¶ 98-102); (Docket No. 120 at 2). At issue for the equal protection claim is whether these other properties and the circumstances surrounding their interactions with Dzugan, are sufficiently similar to Flanders' to qualify as similarly situated. Also at issue is whether Dzugan had a rational basis for his actions towards Flanders.


Defendants retained Tymoczko to render an expert opinion regarding the alleged comparator properties and the reasonableness of Dzugan's actions taken with regard to Flanders. (Docket No. 127 at 2). As noted, Tymoczko is a "Senior Planner" in the Division of Strategic Planning of the Pittsburgh Department of City Planning. (Docket No. 99). She has held that particular position since July 2014. (Docket No. 91-2). She has worked for the Pittsburgh Department of City Planning as either a "Senior Planner" or "Zoning Administrator" since January 1988. ( Id .). From 1980-1988 she worked as a "Planner" for the Division of Community Planning. ( Id .). Tymoczko received her Master of Urban and Regional Planning from the University of Pittsburgh's Graduate School of Public and International Affairs in 1978 and her Bachelor of Science in Earth Science from Clarion State College. ( Id .). Tymoczko has provided expert testimony one other time in the past four years. She testified as an expert regarding a conditional use application for a natural gas well in Mount Pleasant, Pennsylvania, before the Mount Pleasant Board of Supervisors earlier this year. (Docket No. 91-1).

Ms. Tymoczko details her findings and conclusions in her Expert Report. The Report starts with a "Chronology of Events" section wherein she summarizes the facts of the case. ( Id . at 1-2). She then describes the "purpose and scope" of the various municipal ordinances and codes that govern zoning and building permits. ( Id . at 2). The Report then provides an evaluation of Dzugan's actions. ( Id . at 3-5). It also compares the circumstances and his handling of Flanders' property with that of the alleged comparator properties. ( Id . at 3-5). Tymoczko concludes that "Mr. Dzugan discharged his responsibilities as Ford City's Building Code Official in a conscientious and consistent manner" and his "interpretation, administration and enforcement of the applicable zoning and building codes following [sic] the applicable and acceptable practices in our industry." (Docket No. 91-1 at 5).

Plaintiff brings this Daubert Challenge, asking the Court to strike Tymoczko's Report and exclude her testimony at trial. (Docket No. 95). Plaintiff claims that the Report should be stricken as it will not assist the jury with specialized knowledge, it contains unsupported legal conclusions and lacks a reliable method, and Ms. Tymoczko is not qualified as an equal protection expert. (Docket No. 96). Defendants submit that she is qualified and that her report simply "analyzes the factual differences between Plaintiff's property and alleged similarly-situated' properties in conjunction with Defendant Dzugan's administration of his duties as Ford City's building code official." (Docket No. 99 at 5). Plaintiff chose to neither depose Tymoczko nor retain his own expert. (Docket No. 127 at 3 n.2).


Federal Rule of Evidence 702, which memorializes the Supreme Court's landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provides the basic framework for the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, ...

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