Halchak v. Dorrance Township Board of Supervisors

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY HALCHAK, et al.,

Plaintiffs, :

Vv. : 3:18-CV-1285

(JUDGE MARIANI)

DORRANCE TOWNSHIP BOARD OF ~ : (Magistrate Judge Carlson)

SUPERVISORS, et al.,

Defendants.

MEMORANDUM OPINION

|. INTRODUCTION and PROCEDURAL HISTORY

Presently before the Court is a Report and Recommendation (‘R&R’) (Doc. 35) by

Magistrate Judge Martin C. Carlson in which he recommends that The Dorrance Township

Board of Supervisors and Alan Snelson’s Motion to Dismiss Amended Complaint (Doc. 2)

and Motion of Defendants, Code Inspections, Inc. and Ken Fenstermacher, to Dismiss

Plaintiffs’ Amended Complaint for Failure to State a Claim upon Which Relief Can Be

Granted, Pursuant to F.R.C.P. 12(b)(6) (Doc. 7) be granted as to Plaintiffs’ Fourteenth

Amendment Procedural Due Process claims and Plaintiffs’ state law claims be dismissed

without prejudice for renewal in state court (Doc. 35 at 20-22). For the reasons discussed

below, the Court disagrees.

The operative complaint is the Amended Complaint filed in the Court of Common

Pleas of Lackawanna County (Doc. 2-1) and removed to this Court on June 26, 2018, by

Defendants Dorrance Township Board of Supervisors and Alan Snelson ("Dorrance

Defendants”) (Doc. 1). Defendants Code Inspections, Inc. and Ken Fenstermacher (“Cll

Defendants”) consented to the Notice of Removal. (Doc. 1 at 3] 9.) Although the

Amended Complaint contains five counts, the Court of Common Pleas denied Plaintiffs’

Petition as to Counts II and Ill (Doc. 2 3 & n.1) with the result that Counts |, IV, and V are

before this Court. Count | does not identify a specific cause of action. (See Doc. 2-1 at 1.)

However, as discussed in the R&R, Count | contains federal procedural due process claims

which provide the basis for federal jurisdiction. (Doc. 35 at 3-4.)

Magistrate Judge Carlson provided the following brief factual summary of the

underlying action:

This litigation involves a longstanding local land use dispute between Anthony

and Kelly Halchak, who have for the past ten years sought an occupancy permit

to operate a used car business on a parcel of land which they own, and

Dorrance Township, Alan Snelson, the township zoning officer, as well as Code

Inspections, Inc., a private firm hired by the township to provide code inspection

and enforcement services for the township, and one of its employees, Ken

Fenstermacher. (Doc. 2-1.)

(Doc. 35 at 2.) There is no dispute that Plaintiffs’ application for an occupancy permit was

never granted or denied. (See, e.g., Doc. 8 at 5.)

Plaintiff filed objections to the R&R and a brief in support of the objections on

September 13, 2019. (Docs. 36, 36-1.) Defendants did not file objections to the R&R and

the time for doing so has passed. Dorrance Defendants and Cll Defendants each filed a

timely response to Plaintiffs’ objections. (Docs. 37, 38.)

A District Court may “designate a magistrate judge to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition” of certain matters pending before the Court. 28

U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate

Judge's Report and Recommendation, the District Court “shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” /d. at § 636(b)(1)(C); see also Fed. R. Civ.

P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

“If a party does not object timely to a magistrate judge's report and recommendation, the

party may lose its right to de novo review by the district court.” EEOC v. City of Long

Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). However, “because a district court must take

some action for a report and recommendation to become a final order and because the

authority and the responsibility to make an informed, final determination remains with the

judge, even absent objections to the report and recommendation, a district court should

afford some level of review to dispositive legal issues raised by the report.” /d. at 100

(internal citations and quotation marks omitted).

Having conducted the required de novo review, the Court concludes that Defendants

have not shown that Plaintiffs’ Amended Complaint does not state a plausible claim for relief

based on the asserted Fourteenth Amendment procedural due process violation.

ll. ANALYSIS

Plaintiffs object to the R&R’s recommendation that Defendants’ motions be granted

as to their federal procedural due process claims, summarizing their position as follows:

“(tlhe Report is focused on the Pennsylvania procedural schemes with regard to land use

issued, but the Report fails to review the actions or inactions of Dorrance and its code

enforcement official and how their actions or inactions effectively prevented the Halchaks

from any procedural process resulting in an absolute denial of their due process rights.”

(Doc. 36 at 9 § 31.) For the reasons that follow, the Court concludes that Defendants and

the R&R do not adequately address Plaintiffs’ Amended Complaint and facts asserted

therein in the appropriate context regarding their claimed Fourteenth Amendment

Procedural Due Process Clause violation.

At the outset, the R&R identified federal courts’ general consideration of local land

use disputes, noting that

federal courts have repeatedly []

emphasize[d] . . . our reluctance to substitute our judgment for

that of local decision-makers, particularly in matters of such local

concern as land-use planning, absent a local decision void of a

“plausible rational basis.” Pace, 808 F.2d at 1035. We decline to

federalize routine landuse decisions. Rather, the validity of land-

use decisions by local agencies ordinarily should be decided

under state law in state courts.

Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 596 (3d Cir.

1998). Thus, decisional case law in federal court studiously “avoid[s] converting

federal courts into super zoning tribunals.” Eichenlaub v. Twp. of Indiana, 385

F.3d 274, 285 (3d Cir. 2004).

(Doc. 35 at 1-2.)

The Magistrate Judge then looked to the legal standards governing federal

procedural due process claims in local land use disputes and set out the following legal

framework:

the governing legal standards for federal procedural due process claims are

both exacting and well-settled. As we have noted:

The Fourteenth Amendment prohibits a state from “depriv[ing]

any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. In order to make out a claim

for a violation of procedural due process, a plaintiff must allege

three elements: (1) that the defendant was acting under color of

state law; (2) that the defendant deprived him of a property

interest; and (3) the state procedures for challenging the

deprivation did not satisfy the requirements of procedural due

process. Midnight Sessions, Ltd. v. City of Phila., 945 F.2d 667,

680 (3d Cir. 1991) (overruled on other grounds by United Artists

Theatre Circuit v. Twp. of Warrington, 316 F.3d 392 (2003); see

also, Parratt v. Taylor, 451 U.S. 527, 536-37 (1981). When a

state “affords a full judicial mechanism with which to challenge

the administrative decision” at issue, it provides adequate

procedural due process, irrespective of whether the plaintiffs

avail themselves of that process. DeBlasio v. Zoning Bd. of

Adjustment, 53 F.3d 592, 597 (3d Cir. 1995) (overruled on other

grounds by United Artists, 316 F.3d 392; see also, Midnight

Sessions, 945 F.2d at 681 (“The availability of a full judicial

mechanism to challenge the administrative decision to deny an

application, even an application that was wrongly decided,

preclude[s] a determination that the decision was made pursuant

to a constitutionally defective procedure.”).

Sutton v. Chanceford Twp., No. 1:14-CV-1584, 2016 WL 7231702, at *10 (M.D.

Pa. Dec. 14, 2016), affd, 763 F. App’x 1186 (3d Cir 2019).

Further, with respect to the third, and final, essential element of a federal

procedural due process claim—the question of whether the existing state

procedure satisfies the rudiments of due process—we do not write upon a blank

slate. Federal courts have frequently considered whether the administrative

and legal remedies available under Pennsylvania law to persons aggrieved by

local municipality land use decisions satisfy the requirements of procedural due

process. Without exception, these courts have found that “Pennsylvania's

scheme for judicial review of administrative land use decisions has . . . passed

constitutional muster.” Sixth Angel Shepherd Rescue Inc. v. West, 790 F. Supp.

2d 339, 358 (E.D. Pa. 2011), affd, 477 F. App’x 903 (3d Cir. 2012) (citing

Perano v. Twp. of Tilden, 423 F. App’x 234, 237 (3d Cir. 2011)); see also, Bello

v. Walker, 840 F.2d 1124, 1128 (3d Cir. 1988). As to such claims, it is often

held that “[b]lecause Pennsylvania’s state procedure for challenging an

administrative zoning decision satisfies procedural due process, plaintiff fails to

state a claim founded on a violation of procedural due process.” Nicolette v.

Caruso, 315 F. Supp. 2d 710, 721 (W.D. Pa. 2003).

Further, when avenues of legal recourse are available to a party under

state law:

In order to state a claim for failure to provide due process, a

plaintiff must have taken advantage of the processes that are

available to him or her, unless those processes are unavailable

or patently inadequate. “[A] state cannot be held to have violated

due process requirements when it has made procedural

protection available and the plaintiff has simply refused to avail

himself of them.” Dusanek v. Hannon, 677 F.2d 538, 543 (7th

Cir.1982); see also, Bohn v. County of Dakota, 772 F.2d 1433,

1441 (8th Cir.1985). A due process violation “is not complete

when the deprivation occurs; it is not complete unless and until

the State fails to provide due process.” Zinermon v. Burch, 494

U.S. 113, 126, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990). If there

is a process on the books that appears to provide due process,

the plaintiff cannot skip that process and use the federal courts

as a means to get back what he wants. See McDaniels v. Flick,

59 F.3d 446, 460 (3d Cir.1995); Dwyer v. Regan, 777 F.2d 825,

834-35 (2d Cir.1985), modified on other grounds, 793 F.2d 457

(2d Cir. 1986); Riggins v. Board of Regents, 790 F.2d 707, 711-

12 (8th Cir. 1986).

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

Accordingly, relying upon this principle in the context of land use

litigation, federal courts frequently reject procedural due process claims made

by plaintiffs who have not fully availed themselves of their existing potential

remedies under state law. See, e.g., Giuliani v. Springfield Twp., 238 F. Supp.

3d 670, 692 (E.D. Pa. 2017), affd, 726 F. App’x 118 (3d Cir. 2018); Sixth Angel

Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339, 358 (E.D. Pa. 2011), aff,

477 F. App’x 903 (3d Cir. 2012). Therefore, when the “Plaintiffs did not avail

themselves of the procedural protections available under Pennsylvania law,

they cannot sustain a federal procedural due process claim.” McLaughlin v.

Forty Fort Borough, 64 F. Supp. 3d 631, 647 (M.D. Pa. 2014). Similarly, when

the record discloses that judicial remedies were available to the plaintiffs under

state law, and the plaintiffs actually availed themselves of those remedies by

pursuing state court litigation, a federal procedural due process claim typically

fails as a matter of law. Sixth Angel Shepherd Rescue Inc. v. West, 790 F.

Supp. 2d 339, 358 (E.D. Pa. 2011), affd, 477 F. App’x 903 (3d Cir. 2012)

(denying procedural due process claim when the plaintiff “is currently pursuing

its appeal of the . . . Zoning Hearing Board’s decision through Pennsylvania's

court system’).

(Doc. 35 at 10-14.)

Considering Plaintiffs’ federal due process claims in this context, the Magistrate

Judge concluded that Plaintiffs did not show “that the third element of a procedural due

process claim in this setting is satisfied in that they have not shown that the state

procedures for challenging the local municipality land use decision did not satisfy the

requirements of procedural due process.” (Doc. 35 at 14.) The basis for this conclusion

was the finding that Plaintiffs had two paths to follow which could afford them procedural

due process—an administrative appeal to the Dorrance Township appeals board or state

court judicial review—and they exercised the latter of the two. (/d.)

Regarding administrative appeal, the Magistrate Judge stated

it is apparent that state law afforded the Halchaks procedural due process

through the opportunity to pursue an administrative appeal of any land use

decision to a board of appeals pursuant to 34 Pa.C.S. § 403.121. It is also

uncontested that the Halchaks never availed themselves of their right to seek

an administrative appeal, thus foregoing one form of procedural due process

afforded to them under state law.

(Doc. 35 at 15.) The Magistrate Judge also found, “more fundamentally,”

it is absolutely undisputed that the state provided a full judicial mechanism with

which to challenge this administrative decision. In fact, the Halchaks actively

utilized this state judicial mechanism for nearly three years prior to the removal

of this case to federal court. Since “Pennsylvania’s scheme for judicial review

of administrative land use decisions has . . . passed constitutional muster,”

Sixth Angel Shepherd Rescue Inc. v. West, 790 F. Supp. 2d 339, 358 (E.D. Pa.

2011), affd, 477 F. Appx 903 (3d Cir. 2012) (citing Perano v. Twp. of Tilden,

423 F. App’x 234, 237 (3d Cir. 2011)); Bello v. Walker, 840 F.2d 1124, 1128

(3d Cir. 1988), the plaintiffs’ actual use of these available judicial remedies

rebuts any claim that they have been denied procedural due process by the

state.

(Doc. 35 at 16.)

With their objections, Plaintiffs reject the R&R’s reliance on cited cases “which

recognize the availability for state review of an administrative ‘decision.” (Doc. 36 at 2 {[ 3.)

Plaintiffs note that the R&R does not “discuss or consider the fact that there was an

absence of a decision . . . concerning the Halchaks application for an occupancy permit

(‘OP’) . . . [and] [w]ithout the decision, there was no trigger to take an appeal.” (/d.)

Plaintiffs further aver that Defendants’ actions prevented their right of appeal so “even

though Pennsylvania has a constitutional scheme of appeal rights, defendants have

effectively blocked [their] right . . . to their due process rights by merely doing nothing

regarding a formal decision concerning the OP application.” (/d.) Plaintiffs also state that

“there was nothing that could have been appealed to an appeals board, even if one existed”

(id. at 5 § 15), and the filing of the mandamus action in state court resulted from

Defendants’ failure to act on the OP application (id. {Jj 16, 17).

The Court concludes that Plaintiffs criticism of the R&R is both facially persuasive

and legally significant. First, the cases relied upon in the R&R which related to land use

issues, both Third Circuit opinions and those from district courts within the Third Circuit,

addressed situations where the municipality had reached at least an initial decision on the

plaintiff's permit application or other matter at issue.’ This distinguishing fact is significant in

that “[i]lt is well established that, in cases involving land-use decisions, a property owner

does not have a ripe, constitutional claim until the zoning authorities have had “an

opportunity to arrive at a final, definitive position regarding how they will apply the

regulations at issue to the particular land in question.” Sameric, 142 F.3d at 597 (internal

quotation and citation omitted). As noted previously, here it is undisputed that Plaintiffs’

application for an occupancy permit was never granted or denied. (See, e.g., Doc. 8 at 5.)

1 Eichenlaub, Sameric, and Pace involved appeals from municipal zoning decisions and were

decided in the context of substantive due process. Eichenlaub, 385 F.3d at 385; Sameric, 142 F.3d at 596;

Pace, 808 F.2d at 1034-35. Bello was decided in the context of an initial denial and subsequent delay in

issuing a building permit. 840 F.2d at 1126-28. Sutton considered the municipality's denial of a zoning

permit. 2016 WL 7231702, at *10. In McLaughlin, land use decisions had been made by the municipality

and the plaintiffs were aggrieved by those decisions which allowed the establishment of a bakery

distribution business near their home and they claimed, inter alia, that they were not “afforded any right to

be heard on the issue of whether the Dunkin’ Donuts could manufacture in a C1 district, which the

Defendants admit is not permissible.” 64 F. Supp. 3d at 646 (citation omitted). Sixth Angel considered the

municipal zoning hearing board's decision to affirm the zoning hearing officer's issuance of a cease and

desist letter to the plaintiff for violation of the local zoning ordinance where the plaintiff was pursuing an

appeal of the zoning hearing board’s decision in state court. 790 F. Supp. 2d at 347, 358.

The effect of the withholding of a decision has not been addressed by the Magistrate Judge

or Defendants and it is a legally significant fact because, without the municipal authority's

definitive position on whether an application is granted or denied, consideration of an

aggrieved applicant’s claim may ultimately be hindered or foreclosed.

Second, in assessing what processes were available to the plaintiff, the land use

decisions cited looked to the availability of judicial review of land use decisions in both the

zoning and building code permit contexts. See, e.g., Bello, 840 F.2d at 1127-28; Sixth

Angel, 790 F. Supp. 2d at 358; Sutton, 2016 WL 7231702, at*10. The Third Circuit has

consistently held that a state provides constitutionally adequate procedural due process

when it provides reasonable remedies to rectify a legal error by a local administrative

body. See, e.g., Bello, 840 F.2d at 1128 (citations omitted). The opinions cited have

concurred that Pennsylvania state procedures for challenging administrative land use

decisions are sufficient to meet constitutional due process requirements. /d. However, no

case cited stands for the proposition that a property owner who files a mandamus action in

state court based on a municipality's code enforcement officer’s failure to grant or deny an

application for an occupancy permit has done so pursuant to a Pennsylvania state

procedure that has been held sufficient to meet constitutional due process requirements.

Insofar as a municipal code officer’s failure to render a decision on an occupancy permit

application can be considered “legal error,” whether recourse only to a mandamus action is

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a “reasonable remedy” remains a question unanswered by the authority cited in the R&R.

Id.

Third, a decision that procedural due process has been afforded must be based on

an inquiry which has not occurred here. As stated in Zinermon, “to determine whether a

constitutional violation has occurred, it is necessary to ask what process the State provided,

and whether it was constitutionally adequate. This inquiry would examine the procedural

safeguards built into the statutory or administrative procedure of effecting the deprivation,

and any remedies for erroneous deprivations provided by statute or tort law.” 494 U.S. at

126. Although the Magistrate Judge concluded that Plaintiffs’ state court filing was

encompassed in “Pennsylvania's scheme for judicial review of administrative land use

decisions [which has] passed constitutional muster” (Doc. 35 at 16 (quoting Sixth Angel,

790 F. Supp. 2d at 358 (citation omitted) (citing Bello, 840 F.2d at 1128), the foregoing

discussion shows that the conclusion is not supported by the authority cited. Pursuant to

Zinermon, 494 U.S. at 126, a conclusion that filing a mandamus action in state court

precluded a claim for a violation of procedural due process would require an examination of

the related statutory and administrative procedures and related remedies. The Court will

not sua sponte undertake the necessary inquiry—to do so would be to improperly assume

Defendants’ burden at this motion to dismiss stage. See Gould Electronics v. United States,

220 F.3d 169, 178 (3d Cir. 2000). However, the Court will review the arguments proffered

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by Defendants regarding Plaintiffs’ Fourteenth Amendment procedural due process claim

before determining whether this federal claim is properly dismissed on another basis.

Dorrance Defendants assert that “[i]f there is a process on the books that appears to

provide due process, the plaintiff cannot skip that process and use the federal courts as a

means to get back what he wants.” (Doc. 8 at 7 (quoting Alvin, 227 F.3d at 116).)

Dorrance Defendants conclude that Plaintiffs’ failure to follow established administrative

procedures is dispositive of their procedural due process claim. (/d. at 9.) They argue as

follows:

The General Assembly has provided a means of contesting a decision to

withhold an occupancy permit: filing an appeal with a board of appeals created

pursuant to the Uniform Construction Code. 34 Pa. Code § 403.121(b). Further,

34 Pa. Code § 403.122(a) provides that an owner “may ... appeal a building

code official's decision....” See 34 Pa. Code § 403.122(a) (emphasis added). In

order to administer the UCC and to adjudicate challenges to decisions made

by a building code official, the UCC requires the establishment of a board of

appeals. 35 P.S. § 7210.501(c); 34 Pa. Code § 403.121(a). “The board of

appeals shall hear and rule on appeals...” 34 Pa. Code § 403.121(b). See,

e.g., Gerbracht v. Fairview, Harborcreek & Millcreek Townships UCC Appeals

Bd., 61 A.3d 1073, 1078 (Pa. Cmwith. 2013).

It is uncontested that the Halchaks failed to appeal the decision of Cll

denying issuance of an occupancy permit. Therefore, “[s]ince Plaintiffs did not

avail themselves of the procedural protections available under Pennsylvania

law, they cannot sustain a federal procedural due process claim.” McLaughlin

v. Forty Fort Borough, 64 F. Supp. 3d 631, 647 (M.D. Pa. 2014) (Mariani, J.).

(Doc. 8 at 7-8.)

Cll Defendants’ conclusion that “Plaintiffs have not established a basis for a civil

rights claim” (Doc. 10 at 12) is preceded by the following analysis:

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Plaintiffs have not alleged facts sufficient to make it plausible that Cll deprived

plaintiffs of any due process right or abused governmental power. Plaintiffs

must, at a minimum, plead facts to show they were wrongfully denied an

occupancy permit. Plaintiffs have alleged no basis to support the issuance of

an occupancy permit. An alleged failure by Cll to issue an occupancy permit,

on its own, is not a violation of any right.

Cll Defendants’ limited discussion consists of conclusory assertions which cannot

satisfy their burden of showing that Plaintiffs have not stated a plausible federal due process

claim. Dorrance Defendants have provided specific argument in support of their conclusion

that Plaintiffs’ federal due process claim should be dismissed which the Court will now

address.

Dorrance Defendants first state that “[t]he General Assembly has provided a means

of contesting a decision to withhold an occupancy permit: filing an appeal with a board of

appeals created pursuant to the Uniform Construction Code. (Doc. 8 at 7 (citing 34 Pa.

Code § 403.121(b)). With this assertion Dorrance Defendants characterize the withholding

of a permit to be a decision under the law. The Court disagrees.

A building code official's obligations regarding the granting or denial of permits is set

out in 34 Pa. Code § 403.43:

A building code official shall grant or deny a permit application, in whole or in

part, within 30 business days of the filing date. Reasons for the denial must be

in writing, identifying the elements of the application which are not in

compliance with the relevant provisions of the Uniform Construction Code and

ordinance as appropriate and providing a citation to the relevant provisions of

the Uniform Construction Code and ordinance as appropriate, and sent to the

applicant. The building code official and the permit applicant may agree in

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writing to extend the deadline by a specific number of days.

34 Pa. Code § 403.43(a). 34 Pa. Code § 403.121 addresses the creation of a board of

appeals under the Uniform Construction Code, the duties of the board of appeals, and

related matters. Section 403.121 states the following in pertinent part:

(a) A municipality which has adopted an ordinance for the administration and

enforcement of the Uniform Construction Code or is a party to an agreement

for the joint administration and enforcement of the Uniform Construction

Code shall establish and appoint members to serve on a board of appeals

under section 501(c) of the act (35 P. S. § 7210.501(c)).

(b) The board of appeals shall hear and rule on appeals, requests for variances

and requests for extensions of time. An application for appeal shall be

based on a claim that the true intent of the act or Uniform Construction Code

has been incorrectly interpreted, the provisions of the act or Uniform

Construction Code do not fully apply or an equivalent form of construction

is to be used.

34 Pa. Code § 403.121. Section 403.122(a) provides that “[a]n owner or owner's agent

may seek a variance or extension of time or appeal a building code official's decision by

filing a petition with the building code official or other person designated by the board of

appeals on a form provided by the municipality.” The Pennsylvania statute which

requires the establishment of a board of appeals under the Construction Code Act states

that the board of appeals is established “to hear appeals from decisions of the code

administrator.” 35 P.S. § 7210.501(c). Read together, these provisions indicate that a

decision must be in writing, it must be rendered within thirty days unless an extension of

time has been agreed upon in writing, and the appeal which the board of appeals would

hear is the appeal of that written decision of the building code official.

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Importantly, the relevant Pennsylvania provisions do not contemplate review of a

building code official's failure to act. They do not, as Dorrance Defendants assert, provide a

“means of contesting a decision to withhold an occupancy permit” (Doc. 8 at 7)—no

provision renders an official’s unwritten “decision to withhold” a permit to be a “decision”

capable of appeal in the Pennsylvania scheme established. In contrast, in the statutory

provision which addresses “Consideration of applications and inspections,” a code

administrator's failure to act is addressed, albeit in a limited context: “If the code

administrator fails to act on an application for a construction permit for one-family and two-

family dwelling units and utility and miscellaneous use structures within the time prescribed,

the application shall be deemed approved.” 35 P.S. § 7210.502. This provision is clearly

not applicable here. More importantly, the provision recognizing a failure to act in a specific

context indicates that, pursuant to relevant rules of statutory construction, the Court cannot

read a failure-to-act basis for appeal into the generally applicable provisions discussed

above.2

2 Several familiar rules of statutory construction support this conclusion:

Different words used in the same, or a similar, statute are assigned different meanings

whenever possible... . When the legislature uses a term or phrase in one statute or

provision but excludes it from another similar statute or provision, courts do not imply an

intent to include the missing term or phrase in that statute or provision where the term or

phrase is excluded. Instead, omission of the same term or phrase from a similar section is

significant

to show different legislative intent for the two sections.

§ 46:6.Each word given effect, 2A Sutherland Statutory Construction § 46:6 (7th ed.) (citations omitted).

The foregoing discussion indicates that the Pennsylvania scheme regarding the

Construction Code Act does not provide a means of contesting an official's failure to act on

the application for an occupancy permit. Seen in the proper context, Dorrance Defendants’

statement that “[ijt is uncontested that the Halchaks failed to appeal the decision of Cll

denying issuance of an occupancy permit” (Doc. 8 at 8) is disingenuous at best: in taking no

official action, Cll did not deny the issuance of an occupancy permit, and Plaintiffs failed to

appeal because they did not have a decision to appeal. Thus, Dorrance Defendants’

conclusion that Plaintiffs “cannot sustain a federal procedural due process claim” (id.) on the

basis asserted is not supported by the Pennsylvania code provisions or caselaw relied

upon. On this record, the Court cannot conclude that Defendants have satisfied their

burden of showing that Plaintiffs have not stated a plausible claim for relief based on their

claimed Fourteenth Amendment procedural due process violation.

Neither Dorrance Defendants nor Cll Defendants provide a basis for a contrary

conclusion with their filings in response to Plaintiffs’ objections. (Docs. 37, 38.) Though

Plaintiffs’ filings are not a model of clarity, they specifically articulate an objection based on

In contrast to the Construction Code Act scheme, in the Pennsylvania scheme for zoning matters,

the zoning hearing board is given jurisdiction to hear and render final adjudications in matters which include

“falppeals from the determination of the zoning officer, including, but not limited to, the granting or denial of

any permit, or failure to act on the application therefor, the issuance of any cease and desist order or the

registration or refusal to register any nonconforming use, structure or lot.” 53 Pa. Stat. Ann. §

10909.1(a)(3) (emphasis added).

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the legal significance of the municipal code officer's failure to act. (See, e.g., Doc. 36 ff 3,

15.) Defendants do not acknowledge Plaintiffs’ objection concerning the dispositive

distinction between the code enforcement officer's failure to act and a “decision” for

purposes of the Pennsylvania scheme at issue. Because this distinction forms the basis of

the Court's conclusion regarding Defendants’ motions and the R&R, the arguments set out

in Defendants’ responsive briefs do not affect the foregoing analysis.

With the determination that Defendants’ motions to dismiss are properly denied, the

Court renders no opinion as to whether Plaintiffs’ Fourteenth Amendment claim will

ultimately succeed. Similarly, other arguments raised by Defendants with their motions to

dismiss may again be raised without prejudice at the conclusion of discovery.

Ill. CONCLUSION

For the reasons discussed above, the R&R (Doc. 35) will not be adopted. The

Dorrance Township Board of Supervisors and Alan Snelson’s Motion to Dismiss Amended

Complaint (Doc. 2) will be denied. The Motion of Defendants, Code Inspections, Inc. and

Ken Fenstermacher, to Dismiss Plaintiffs’ Amended Complaint for Failure to State a Claim

upon Which Relief Can Be Granted, Pursuant to F.R.C.P. 12(b)(6) (Doc. 7) will be denied.

An appropriate Order is filed simultaneously with this Memorandum Opinion.

obert D. i

United States District Judge

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