United States District Court, E.D. Pennsylvania
I. QUIÑONES ALEJANDRO, J.
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.
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].
October 7, 2016, Defendants filed the underlying motion to
dismiss, or alternatively, for summary judgment. [ECF
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
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.
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.
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.
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 ...