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Old York LLC v. Township of Abington

United States District Court, E.D. Pennsylvania

February 16, 2017

OLD YORK LLC, Plaintiff
TOWNSHIP OF ABINGTON, et al., Defendants




         Presently before this Court is a motion to dismiss, or alternatively for summary judgment, [ECF 21], filed by Defendants Township of Abington (“Township”) and Kenneth J. Clark (“Defendant Clark”) (collectively, “Defendants”), in which they seek dismissal of all of the federal and state claims asserted against them by Plaintiff Old York LLC (“Plaintiff”). Plaintiff has opposed the motion. [ECF 24]. The issues raised in the motion to dismiss/for summary judgment have been fully briefed by the parties and are now ripe for disposition. For the reasons stated herein, Defendants' motion is granted, in part, and denied, in part.


         On April 11, 2016, Plaintiff filed its initial complaint against Defendants. [ECF 1]. Following the filing of a motion to dismiss and the parties' respective briefing thereon, Plaintiff filed a motion for leave to file an amended complaint, which this Court granted. [ECF 17-18]. On September 22, 2016, Plaintiff filed an amended complaint asserting civil rights claims based on Defendants' alleged violation of Plaintiff's due process and equal protection rights under the Fourteenth Amendment of the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution, as well as state law claims for intentional interference with contractual relations, defamation, and trade disparagement. [ECF 19].

         On October 7, 2016, Defendants filed the underlying motion to dismiss, or alternatively, for summary judgment. [ECF 21].[1] When ruling on Defendants' motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the amended complaint and construe these facts in the light most favorable to Plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). These factual allegations are as follows:

Plaintiff is the owner of a multi-story apartment complex in Abington, Pennsylvania, formerly known as the Colonade and now known as 100 York (the “Colonade”). (Amend. Compl. Introduction). The Colonade consists of two high-rise residential buildings, the Estate and the Manor buildings. (Id. at ¶¶9-10). Plaintiff is engaged in a $26 million multi-stage rehabilitation and renovation project at the Colonade. (Id. at ¶11). Renovations are complete in all of the apartment units in the Estate building, and the Township has issued 286 “Certificates of Occupancy” for those units. (Id. at ¶75). Plaintiff alleges that despite issuing Plaintiff these “Certificates of Occupancy” for apartment units in the Colonade, the Township has subsequently taken the wrongful position that the units may not be occupied unless and until Plaintiff is issued “Use and Occupancy Permits, ” which the Township suggests are different than the admittedly issued Certificates of Occupancy.
Plaintiff contends that its dispute with the Township began in 2014, when Plaintiff attempted to begin the renovation of the Colonade. (Id. at ¶14). At that time, Defendant Clark, who is the fire marshal for Abington Township, demanded that Plaintiff install sprinklers throughout both buildings and/or substantially upgrade its fire alarm system, otherwise he would not approve the issuance of Certificates of Occupancy for the renovated apartment units. (Id. at ¶16). Plaintiff disagreed that such measures were required or necessary. (Id. at ¶¶17-18). Defendant Clark threatened Plaintiff with various enforcement actions unless Plaintiff capitulated to his demands. (Id. At ¶22).
Ultimately, Plaintiff and the Township reached an agreement which was memorialized in a Memorandum of Understanding (the “MOU”), on November 4, 2014. (Id. at ¶25). The MOU describes its purpose as: “[t]he parties . . . have entered into this MOU to resolve and settle ongoing disputes regarding code and permit requirements for the upgrades and improvements which Old York plans to undertake for the Colonade apartment complex.” (Id. at ¶26). As part of the parties' agreement, Plaintiff agreed to exceed Code requirements by upgrading the Colonade's fire alarm system. (Id. at ¶29). The MOU sets forth the scope of the work to be undertaken at the Colonade and all steps that Plaintiff must take from start to finish in order to occupy the Colonade. (Id. at ¶¶26-32).
Since the parties entered into the MOU, the Township and Defendant Clark have continued to insist that Plaintiff meet other demands that Plaintiff contends are not required by any applicable code or the MOU. (Id. at ¶¶33- 48). In the spirit of cooperation, Plaintiff has met some of Defendant Clark's demands, but Plaintiff's efforts to placate Defendant Clark have been unsuccessful. (Id. at ¶¶42-48).
On February 18, 2016, and again on March 30, 2016, Plaintiff's counsel advised the Township's solicitor by phone that Plaintiff was going to move residents into the Colonade. (Id. at ¶89). The solicitor did not advise that the building could not be occupied, or that any additional permit or certificate was required for occupancy. (Id.).
On April 7, 2016, Defendant Clark responded to a call at the Colonade made by a resident who smelled smoke. (Id. at ¶49). Plaintiff alleges that Defendant Clark intentionally misrepresented to the tenant that the Colonade did not have any Certificates of Occupancy, including for the unit in which the resident was living. (Id. at ¶50). This statement was not true since the Township had issued over 280 Certificates of Occupancy for the Colonade. (Id.). Defendant Clark also misrepresented that the tenant was not allowed to live in the Colonade, (id. at ¶51), and demanded that the tenant leave the building, which he characterized as unsafe. (Id. at ¶52). Defendant Clark escorted the tenant out of the building. (Id. at ¶53). The next day, Defendant Clark told the resident that “it will be a long time” before occupancy is permitted at the Colonade, and she should therefore “find somewhere else to live.” (Id. at ¶57). As a result of Defendant Clark's wrongful eviction of the tenant, Plaintiff paid for a hotel room and other expenses for the resident for a month until she eventually terminated her lease and moved elsewhere. (Id. at ¶58). Defendant Clark issued a report regarding the April 7, 2016 fire at the Colonade, which Plaintiff alleges contained several false statements. (Id. At ¶61).
On April 8, 2016, the Township's zoning officer, Mark Penecale, sent Plaintiff a letter indicating that no unit in the Colonade is “permitted to be occupied until such time that a Use & Occupancy Certificate has been issued by the Township of Abington.” (Id. at ¶74). Mr. Penecale pointed to Section 1105 of the Zoning Ordinance of the Township of Abington as requiring such a “Use and Occupancy Certificate.” (Id.). Plaintiff contends Mr. Penecale's position is wrong and contrary to previous representations of the Township. (Id. at ¶75). In particular, Plaintiff points to the Township's issuance of Certificates of Occupancy for 280 units. (Id.). According to Plaintiff, this was the first time the Township had ever suggested the need for a Use and Occupancy Certificate, in addition to the already issued Certificates of Occupancy. (Id.). Plaintiff also argues that Section 1105, on which Defendants rely, does not apply to Plaintiff's renovation project. (Id.).
After Plaintiff filed this action, its counsel conferred with the Township's counsel about what issues, if any, the Township truly believed needed to be addressed prior to occupancy. (Id. at ¶91). The Township initially identified ten issues which were later narrowed to two after consulting with its Code expert, Michael Perrone, who is also a Fire Marshal. (Id. at ¶¶92-94). The Township's positions on all ten issues, as of April 26, 2016, are memorialized in a document titled the Open-Issues List. (Id. at ¶¶93-94). Plaintiff alleges that as of April 26, 2016, the parties reached agreement that none of the ten issues identified by the Township were barriers to occupancy. (Id.). On ...

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