Seltzer

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FLOYD SELTZER, JR., : No. 3:24¢v1142

Plaintiff :

: (Judge Munley)

V. :

SOUTH MANHEIM TOWNSHIP, by :

and through their elected officials, __:

JOHN BRENNAN, SALVADOR :

INGAGLIO, CHRISTY JOY and :

ROADMASTER KERBY LEWIS, :

Defendants :

MEMORANDUM

Plaintiff Floyd Seltzer, Jr. alleges that the roadmaster in his rural

community destroyed portions of his property after the plaintiff attended public

meetings and criticized township supervisors. Contending that the township, the

township supervisors, and the roadmaster violated his constitutional rights,

Seltzer filed this action asserting claims pursuant to 42 U.S.C. § 1983 (“Section

1983”).1 Before the court is a motion for summary judgment filed by the

defendants. For the reasons set forth below, the motion will be granted.

FILED

SCRANTON

AUG 27 2026

PER GEC

ee

DEPUTY CLERK

1 The court has subject matter jurisdiction under 28 U.S.C. § 1331.

Background □

South Manheim Township is located in Schuylkill County, Pennsylvania.

The plaintiff owns two properties in the township, a farm property and a

residence property.? (Doc. 35, Def. SOF J 8-10, 14). The residence property is

located at 1335 Schuylkill Mountain Road in the township. (Doc. 35-2, PI. Resp.

to Interrogatories {| 1). Plaintiff's farm property is located at the intersection of

Schuylkill Mountain Road and South Berne Drive in the township. (Doc. 35, Def.

SOF J 12; see also Doc. 35-4, Pl. Dep. Exs. at ECF p. 1).

South Manheim Township is governed by a board of supervisors. (Doc. 35,

Def. SOF J 4). Under Pennsylvania law, it is a township of the second class. Id.

3. Three of the individual defendants in this matter, John Brennan, Christy Joy,

Salvador Ingaglio, are members of the board of supervisors. Id. Jf] 4-6.

Defendant Brennan is the current board chairman. Id. 4. He has served as a

member since at least 2018. Id. Defendant Ingaglio has served since at least

2018. Id. 6. Defendant Joy has served since January 2022. Id. 95. The

2 Unless otherwise noted, this factual background derives from defendants’ statement of

material facts (“SOF”) filed pursuant to the Rules of Court for the Middle District of

Pennsylvania (“Local Rules”). (Doc. 35). This memorandum includes a discussion of the

plaintiff's failure to properly address defendants’ assertions of fact in conjunction with the

motion.

fourth individual defendant, Corby Lewis, is the roadmaster of South Manheim

Township.° Id. ¥ 7.

Pursuant to 53 PA. STAT. § 67325, the township engages in rotational

mowing along its roads twice per year to ensure that public roadways are clear of

weeds and other foliage that may be growing into the roads. Id. 7 16. The

township hires seasonal employees each spring for its mowing program. (Doc.

35-1, Def. Ex. A, K. Handling Decl. ¥ 10).

The township has mowed near Seltzer’s farm property since at least 2012,

the year that he purchased the land. (Doc. 35, SOF Jf] 11, 17). Plaintiff first

noticed mowing at his residential property in 2018. Id. 9 18. The mowing of both

properties forms the basis of plaintiff's civil rights claims in this matter, including

his First Amendment retaliation claim.

Specifically, Seltzer attended several board of supervisors’ meetings in

April, May, and July 2018. Id. Jf] 19-22. At the meetings, he commented on the

5:00 PM start time of board meetings, the construction and costs of a municipal

building project, and the lack of an advertisement for a vacancy on the board. Id.

Thereafter, on or around July 25, 2018, the township mowed the shoulder

along the road abutting the plaintiff's residential property. Id. {| 23. During this

3 Defendant Corby Lewis is named as “Kerby Lewis” in the plaintiffs complaint.

instance of mowing, a township employee, Kermit Fix, cut down wildflowers and

left a rut. Id.

Approximately two months later, on September 15, 2018, Seltzer attended

a supervisors’ meeting and reported the damage. Id. {| 24. This was the first and

only time that South Manheim Township had mowed flowers on the plaintiff's

residential property. Id. J 26.

It was not the last issue Seltzer encountered with the township’s mowing

operations. In the spring of 2019, the township conducted mowing near Seltzer’s

farm property. (Doc. 35 J{[ 28, 33). On that occasion, flowers were cut and an

embankment was damaged. Id. {] 28. On July 3, 2019, plaintiff attended a

supervisors’ meeting and reported that his flowers had been mowed once again.

Id. Jj 29.

In response, the board of supervisors directed Defendant Lewis to meet

Seltzer at the farm property and put up stakes so the mowing crew would know

to avoid the flowers in the future.* Id. 9 30. It was also agreed that the township

would only perform one pass with the mower. Id. J 32.

the extent that Seltzer’s correspondence to the court may be construed as a response to

defendants’ statement of material facts, the plaintiff indicates that there were already metal

stakes with colored string on the top to mark where the flowers were located. (Doc. 42 at ECF

p. 2). Seltzer indicates that there are photographs of those stakes laying in the flowers after

being knocked over during mowing. Id.

Thereafter, Seltzer attended supervisors’ meetings in October and

November of 2019 and in February of 2020. Id. ff] 35-37. During the meetings,

Seltzer disagreed with the township’s decision to purchase a hedge trimmer,

commented on the unequal apportionment of township funds between several

volunteer fire associations, and expressed that township meetings were being

held too early. Id.

In July 2020, Defendant Lewis, the township roadmaster, noted that the no-

mow areas Seltzer had identified were becoming overgrown and foliage was

beginning to hang over into the road. Id. Jf] 39-40. In Lewis’s estimation, this

growth needed to be trimmed. Id. □ 39. Thereafter, on July 2, 2020, the board of

supervisors directed the township secretary to send plaintiff a letter offering him

five days to mow the property before the township did so. Id. J 42.

Seltzer did not mow the property himself.° Id. 7 43. On July 13 and 14,

2020, township employee Earl Phillips engaged in trimming and mowing on

Schuylkill Mountain Road. Id. J 44.

Also on July 2, 2020, the township sent Seltzer correspondence indicating

that he had been reappointed to the township planning commission for a four-

5 Plaintiff indicates that he “stopped weeding the flowers” because the township kept mowing

them and he believed he was wasting his time. (Doc. 42 at ECF p. 1). He also requested that

oD pownship secretary place the matter on the agenda for the next public meeting. Id. at ECF

year term. (Doc. 35-4 at ECF p. 68). In his deposition, the plaintiff testified that

he served through the end of his term, or until December 31, 2024, after he filed

this lawsuit. (Doc. 35-3, 111:10-112:16).

Seltzer attended the August 5, 2020 board of supervisors meeting to

discuss the letter he received from the township. (Doc. 35, SOF 7 45). He

accused the township of intentionally damaging his property over the previous

two years. Id. On August 7, 2020, plaintiff emailed the township and accused

supervisors and the roadmaster of singling him out. Id. 46. On September 2,

2020, plaintiff emailed the township with photographs of the damage to his

property. Id. □ 47.

Also on September 2, 2020, the board of supervisors authorized the

township road crew to clear out the right of way on the embankment near

Seltzer’s property because they felt it posed a safety hazard.® Id. 48. In June

and August 2021, and again in July 2022, the township conducted more mowing

and weed whacking along Schuylkill Mountain Road, apparently without incident.

Id. Jf] 49, 51.

6 The meeting minutes from the September 2, 2020 board of supervisors meeting reflect that

Defendant Ingaglio made a motion to use weed whackers to clear plaintiffs property, that it

was seconded by Supervisor Noll, and unanimously carried. (Doc. 35-4 at ECF pp. 46-49). In

response to this paragraph, plaintiff indicates that the “board of supervisors never made,

seconded, or passed a motion authorizing the road crew to use weed whackers on the

property.” (Doc. 42 at ECF p. 3; see also Doc. 35-3, PI. Dep., 71:7-21). As discussed below,

this factual dispute is not material.

In 2023, mowing occurred on Seltzer’s farm property between September

18 and 21. Id. {[52. The mowing resulted in damage to his plantings and an

embankment. Id. On October 4, 2023, plaintiff appeared at a board of

supervisors’ meeting. Id. 53. He complained that his property was again

damaged and that flowers were cut. Id.

Seltzer further asserts that the township has targeted his properties rather

than other landowners who have “safety hazards” within the township’s right-of

way. (Doc. 1, Compl. J] 17-18). As examples, at 1177 Schuylkill Mountain

Road, leaves were left on the road in December 2020, March 2021, March 2023,

April 2023, and December 2023, which the township did not remove.’ (Doc. 35,

SOF 7 55). At 1250 Schuylkill Mountain Road, a property has bushes and a

fence at the corner of aturn. Id. | 56. Additionally, at 1265 Schuylkill Mountain

Road, a large rock sits inches from the roadway and has been in that location

since approximately January 2024. Id. {/57. Per Seltzer, the township’s failure

to remove these hazards violates the Equal Protection Clause of the Fourteenth

Amendment in light of the damage done to his property.

- Seltzer filed this action on July 11, 2024. Defendants responded to the

complaint with a comprehensive motion to dismiss. Upon consideration of that

’ Although the record is not clear, this address appears to be a property in the vicinity of

Seltzer’s farm property.

motion, the court dismissed all claims except for plaintiff's First Amendment

retaliation and class-of-one equal protection claims.® Seltzer v. S. Manheim Twp

by & through Brennan, No. 3:24CV1142, 2025 WL 1139279 (M.D. Pa. Apr. 17,

2025). With the motion for summary judgment, defendants renew many of their

previous arguments. On this occasion, the defendants will prevail.

Legal Standard

Summary judgment is proper “when there is no genuine issue of material

fact in the case and the moving party is entitled to judgment as a matter of law.”

Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citation omitted); see also

FED. R. Civ. P. 56(a). “A fact is material if its resolution ‘might affect the outcome

of the suit under the governing law,’. . . [aJnd a dispute is genuine ‘if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.’ ”

Mall Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

At this stage, the judge's function is not “to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249. All “facts in dispute,” Daniels v. Sch.

Dist. of Phila., 776 F.3d 181, 187 (3d Cir. 2015), and all “inferences to be drawn

8 The court provided Seltzer with leave to amend his Section 1983 due process claims. After

plaintiff did not do so within the timeframe provided, the court dismissed those claims with

prejudice. (Doc. 18).

from the underlying facts must be viewed in the light most favorable to the party

opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (cleaned up). “[W]hen there is a disagreement about

the facts or the proper inferences to be drawn from them, a trial is required to

resolve the conflicting versions of the parties.” Peterson v. Lehigh Valley Dist.

Council, United Bhd. of Carpenters & Joiners, 676 F.2d 81, 84 (3d Cir. 1982).

Furthermore, “a court's role remains circumscribed in that it is inappropriate for a

court to resolve factual disputes and to make credibility determinations.” Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)

(citation omitted). “[W]here the non-moving party's evidence contradicts the

movant's, then the non-movant's must be taken as true.” Id. (citations omitted).

A motion for summary judgment may also be granted where a moving party

demonstrates that the nonmoving party “has not made ‘a showing sufficient to

establish the existence of an element essential to that party's case . . . on which

that party will bear the burden of proof at trial.’ ” Mall Chevrolet, Inc., 99 F.4th at

630 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (emphasis

removed)). After a moving party carries their burden to show the absence of a

genuine, material factual dispute, Rule 56 flips the burden onto “the nonmovant

to ‘go beyond the pleadings and by [its] own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.’” Daubert v. NRA Grp., LLC, 861

F.3d 382, 391 (3d Cir. 2017) (quoting Celotex Corp., 477 U.S. at 324 (emphasis

removed) (alteration in original)). The non-moving party must “do more than

‘simply show that there is some metaphysical doubt as to the material facts.” Id.

(quoting Matsushita, 475 U.S. at 587).

On that last point, the Local Rules require that a motion for summary

judgment be supported “by a separate, short, and concise statement of the

material facts, in numbered paragraphs, as to which the moving party contends

there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party opposing a

motion for summary judgment must file a separate statement of material facts,

responding to the numbered paragraphs set forth in the moving party's statement

identifying genuine issues to be tried. Id. Where an opposing party fails to

respond, those facts in the moving party's statement are considered admitted.

Id.

In this matter, defendants filed a properly supported statement of material

facts. (Doc. 35). Plaintiff, then represented by counsel, did not file a response to

the statement in violation of the Local Rules. After defendants’ motion was fully

briefed, counsel for plaintiff filed a motion to withdraw citing an irreconcilable

conflict based on the plaintiff's repeated pro se correspondence to the court.

10

(Doc. 43). The motion was granted by way of an order dated May 13, 2026.

(Doc. 47).

Since Seltzer was represented by counsel at the time, the court first issued

an order striking certain correspondence. (See Doc. 41 (striking Doc. 38)).

Additional pro se correspondence prompted counsel’s motion to withdraw. (Doc.

42). When granting the motion to withdraw, the court did not strike all of

plaintiff's additional correspondence, recognizing that the first three pages could

be construed as his response to defendants’ statement of material facts.? Id.

Furthermore, the court offered plaintiff additional time to secure new counsel and

file a supplemental response to the defendants’ statement of material facts. Id.

The order warned Seltzer that he was at risk of having all matters in the

statement deemed admitted. Id. To date, plaintiff has not filed a supplement and

the time afforded by the court has expired.

The court takes subsequent filings as evidence that Seltzer wishes to see

his case through on his own without counsel. (Doc. 51, Resp. to Def. Mot. for

Sanctions). Pro se litigants like plaintiff are required to “abide by the same rules

that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

245 (3d Cir. 2013). Additionally, flexibility toward pro se litigants does not require

the court to “indulge evidentiary deficiencies.” Id. at 704—05.

° The remaining six pages were stricken.

11

Therefore, the matters within defendants’ statement of facts reviewed

above will be deemed admitted and undisputed unless rebutted by Seltzer's

filings, but only to the extent that they contain citations to countervailing record

evidence, or if such facts are plainly contradicted by the record. See FED. R. Civ.

P. 56(e) (“If a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact as required by Rule 56(c), the

court may . . . consider the fact undisputed for purposes of the motion; [or] grant

summary judgment if the motion and supporting materials — including the facts

considered undisputed — show that the movant is entitled to it[.]”).

Notwithstanding this determination, the court has carefully reviewed the

evidence supplied by the defendants, which includes plaintiff's deposition

testimony, photographs, correspondence, and township meeting minutes. (Docs.

35-1 to 35-13). To the extent that plaintiff asserts he has other evidence in his

filings with the court, he has not provided such evidence over the last 90 days

since his counsel was permitted to withdraw.

Analysis

After considering the parties’ arguments and the evidence of record,

defendants have demonstrated that there is no dispute of material fact in this

case. Based on those undisputed facts, judgment in their favor is warranted as a

matter of law.

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4. Statute of Limitations

To reiterate, Seltzer asserts a First Amendment retaliation claim and a

class of one equal protection claim under Section 1983. With their motion for

summary judgment, defendants highlight that this action was filed on July 11,

2024. They argue that all claims arising before July 11, 2022 are time-barred.

The court agrees.

With respect to the limitations period for Section 1983 claims, the law is

well settled:

The length of the statute of limitations for a § 1983 claim is

governed by the personal injury tort law of the state where

the cause of action arose. Wallace v. Kato, 549 U.S. 384,

387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). The statute

of limitations for a § 1983 claim arising in Pennsylvania is

two years. 42 PA. CONS. STAT. § 5524(2); see also Kost v.

Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir.1993). Federal

law governs a cause of action's accrual date. Genty v.

Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991).

Under federal law, a cause of action accrues, and the

statute of limitations begins to run, “when the plaintiff knew

or should have known of the injury upon which its action is

based.” Sameric Corp. v. City of Philadelphia, 142 F.3d

582, 599 (3d Cir. 1998) (citation omitted); see also

Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.

1998). The determination of the time at which a claim

accrues is an objective inquiry; we ask not what the plaintiff

actually knew but what a reasonable person should have

known. Barren v. United States, 839 F.2d 987, 990 (3d Cir.

1988).

Kach v. Hose, 589 F.3d 626, 634-35 (3d Cir. 2009).

13

As noted above, Seltzer’s claims involve discrete acts of damage to his

property by the township’s mowing operations and allegations that such damage

was tied to the plaintiff's speech at public township meetings and his participation

in township affairs. First Amendment retaliation claims are always individually

actionable, even when relatively minor. O'Connor v. City of Newark, 440 F.3d

125, 127-28 (3d Cir. 2006). Individually actionable allegations also cannot be

aggregated to support a continuing violation theory of recovery. Id. Thus, any

incidents of alleged First Amendment retaliation before July 11, 2022 are time-

barred. Furthermore, to the extent that plaintiffs equal protection claim

encompasses events prior to July 11, 2022, those matters are likewise barred by

the statute of limitations and cannot be aggregated with events that occurred

after that date. Patterson v. Strippoli, 639 F. App'x 137, 141 (3d Cir. 2016).

2. Seltzer’s First Amendment Retaliation Claim

Using July 11, 2022 as the date of cut-off for Seltzer’s claims, Earl Phillips

used the township boom mower on Schuylkill Mountain Road on July 3, 2022

and July 21, 2022, according to the municipality's employee time records. (Doc.

35-1, K. Handling Decl. | 11 and ECF pp. 14-15). Township employee Curtis

Derr used a weed whacker along the road on July 21, 2022. Id. at ECF p. 16.

However, Seltzer did not complain about mowing operations that year, according

to the summary judgment record.

14

Rather, Seltzer’s first complaint after the cut-off date came in September

2023. (Doc. 35, SOF J 52). Prior to the incident in September 2023, the last

record of Seltzer participating at a public meeting is from September 2020, after

he had filed charges against Defendants Brennan and Lewis and requested that

they be terminated. (Doc. 35-4 at ECF pp. 40-49). Plaintiff has not otherwise

identified any event between September 2020 and September 2023 relevant to

his First Amendment retaliation claim.

To prove that he experienced retaliation for exercising his First Amendment

rights, Seltzer must demonstrate: 1) that he engaged in constitutionally protected

conduct; 2) that he experienced retaliatory action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights; and 3) a causal link

between the constitutionally protected conduct and the retaliatory action.

Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006). Under the law,

causation may be proven with evidence of (1) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory action, (2) a

pattern of antagonism coupled with timing, or (3) evidence permitting an

inference of causation gleaned from the record as a whole. Watson v. Rozum,

834 F.3d 417, 424 (3d Cir. 2016); Lauren W. ex rel. Jean W. v. DeFlaminis, 480

F.3d 259, 267 (3d Cir. 2007): Farrell v. Planters Lifesavers Co., 206 F.3d 271,

281 (3d Cir. 2000).

15

Speaking at a public meeting is a constitutionally protected activity. The

court will assume that the property damage described by the plaintiff is sufficient

to deter a person of reasonable firmness from exercising his free speech rights.

Even so, a three-year gap between protected speech in September 2020 and

adverse action in September 2023 is not reflective of an unusually suggestive

temporal proximity. Smith v. Univ. of Scranton, 770 F. App'x 23, 25 (3d Cir.

2019); Blakney v. City of Phila., 559 F. App'x 183, 186 (3d Cir. 2014); Fraser v..

Pa. State Univ., 654 F. Supp. 3d 443, 455 n.75 (M.D. Pa. 2023). Any pattern of

antagonism in the record between 2018 to 2020 is broken up by this three-year

period. The record also does not contain any evidence in this interim period

permitting an inference of causation between protected speech and the damage

to plaintiff's farm property. Consequently, defendants are entitled to summary

judgment on the plaintiff's First Amendment retaliation claim.

3. Seltzer’s Class of One Equal Protection Claim

Previously, the court determined that Seltzer’s complaint stated a plausible

class of one equal protection claim. 2025 WL 1139279, at *5-6. Therein, the

court noted that “successful equal protection claims may be brought by a ‘class

of one,’ where the plaintiff alleges that [he] has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Id. at *5 (quoting Vill. of Willowbrook v. Olech, 528 U.S.

16

562, 564 (2000) (per curiam) (citation modified)); see also Hill v. Borough of

Kutztown, 455 F.3d 225, 239 (3d Cir. 2006) (“at the very least, to state a claim

under [a class of one] theory, a plaintiff must allege that (1) the defendant treated

him differently from others similarly situated, (2) the defendant did so

intentionally, and (3) there was no rational basis for the difference in treatment.”).

With their statement of facts, defendants have met their burden to show

Seltzer’s failure to establish all three of the above elements. Hugh v. Butler Cnty.

Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp., 477 U.S. at

323-24). In response, Seltzer “has not set forth specific facts such that a

reasonable jury could find in [his] favor[,]” with either direct or circumstantial

evidence. Id. (citing Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 251).

First, comparable parties must be similarly situated, which means they

must be “alike ‘in all relevant aspects.’ ” Startzell v. City of Philadelphia, 533 F.3d

183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). As

for the other properties identified by Seltzer as receiving different treatment, none

of the identified issues relate to the township’s mowing operations.

During his deposition, plaintiff indicated that he observed leaves on

Schuylkill Mountain Road in March, April, and December 2023 that were not

removed by municipal road crews. Id., 95:13—98:7. He further testified that he

observed bushes and rocks on other properties along his road in the township

17

right-of-way that, in his view, posed a hazard. Id., 100:4—102:23. He also

admitted that he did not report such issues to the township. lId., 96:12—-98:7;

100:4—102:23.

Setting aside any notice issues, Seltzer has not supplied evidence creating

a genuine dispute over whether these properties were alike in all relevant

aspects, such as evidence of flowers within the right-of-way that had been

preserved on other properties or roadside embankments that had not been

impacted by mowing operations. Even as to the properties referenced, there is

no evidence that the rocks and bushes referenced could have been removed

with township equipment as part of biannual mowing. Similarly, there is no

evidence that the township’s road department addressed seasonal leaf removal

in a manner similar to its mowing program. Absent such evidence, the court

must conclude that the comparator properties differed in material respects from

the plaintiff's properties.

Seltzer must also respond to defendants’ motion summary judgment with

direct and circumstantial evidence of any of the defendants engaging in

intentional conduct. As indicated above, the first legally operative instance of

property damage from mowing occurred in September 2023 since Seltzer’s

claims have been limited to events after July 2022. Within that timeframe, the

evidentiary record is sparse. The following facts are undisputed: “mowing

18

occurred on the [flarm [p]roperty sometime between September 18, 2023 and

September 21, 2023, resulting in damage to the plantings and bank...

Township records show that Township employee Earl Phillips used the boom

mower on September 20, 2023.” (Doc. 35 J 52). With respect to that incident,

plaintiff testified at his deposition as follows:

Q. Okay. And my question deals with this 2023 issue

with Earl Phillips, do you know if Earl Phillips was at that

meeting?

A. | don't know.

Q. With respect to the damage to the bank, they did not

direct anyone to damage the bank did they?

A. That I can't answer.

Q. Well, I'm asking what information you do possess.

So, do you have any information to possess that anyone

of the three-elected supervisors directed Mr. Phillips, or

any member of the road crew, to damage your bank?

A. Like | said, | don't know, they are mowing it. It got

damaged during mowing.

Q. Okay.

A. I'm not saying they deliberately, how you want to say,

the bank with mowing, they don't have to mow so close.

So, mowing too close you're damaging it.

(Doc. 35-3, 77:21—78:15).

Such testimony by the plaintiff does not establish a genuine issue of

material fact as to whether the township, or its supervisors, or its roadmaster

19

acted intentionally in 2023. No other evidence in the record suggests intentional

conduct, even when construed in a light most favorable to Seltzer.

Finally, under the law, a class of one “can attack intentionally different

treatment if it is ‘irrational and wholly arbitrary.’ ” Eichenlaub v. Twp. of Indiana,

385 F.3d 274, 286 (3d Cir. 2004) (quoting Olech, 528 U.S. at 564). This type of

claim triggers rational basis review and such review uses “a very deferential

standard.” Newark Cab Ass'n v. City of Newark, 901 F.3d 146, 156 (3d Cir.

2018). That standard “is met ‘if there is any reasonably conceivable state of facts

that could provide a rational basis’ for the differing treatment.” Id. Furthermore, in

this area of the law, courts are directed not to use an equal protection claim as

license “to judge the wisdom, fairness, or logic of legislative choices.” Id. (quoting

Heller v. Doe, 509 U.S. 312, 320 (1993)).

Seltzer has not responded to summary judgment with evidence suggesting

that the township’s conduct in 2023 with respect to mowing his farm property was

guided by anything other than a scheduled right-of-way maintenance program,

which was authorized by a state statute, 53 PA. STAT. § 67325(c). Therefore,

summary judgment in favor of the defendants is also appropriate with respect to

the plaintiff's class of one equal protection claim.'°

10 Based on this disposition, the court need not reach defendants’ other arguments that

summary judgment is warranted in favor of South Manheim Township due to plaintiff's failure

to demonstrate a genuine issue of material fact with respect to any municipal liability claim.

20

4. Defendants’ Motion for Sanctions

Before concluding, defendants also move for sanctions, alleging that

Seltzer has violated Rule 11 by sending correspondence to the court while

represented. (Doc. 46). Defendants seek an order prohibiting plaintiff from

making further pro se communications. Id. ] 29. That request for relief is moot

given his counsel’s withdrawal in this matter. Defendants also seek an order

compelling plaintiff to pay reasonable attorneys’ fees in preparing the motion for

sanctions as well as a previous motion to strike. Id. Given the outcome above,

however, the pro se correspondence did not help the plaintiff demonstrate a

genuine issue of material fact. The court also does not believe Seltzer acted in

bad faith; rather, it appears that the plaintiff sent letters to ensure that he was

being heard in this forum. The undersigned will not impose monetary sanctions

under such circumstances. Therefore, the motion for sanctions will be denied.

Conclusion

For the reasons set forth above, the defendants’ motion for summary

judgment will be granted. The Clerk of Court will be directed to enter judgment in

favor of the defendants and against plaintiff in this matter. Defendants’ motion

for sanctions will be denied. An appropriate order follows.

Additionally, the court need not reach any determination as to whether the individual

defendants were personally involved in the alleged violations or whether those defendants

enjoy qualified immunity.

21

Date: $la a 6 (Wx .

JUDGE/JULIA K. MUN-EY

Uni sal States “TS

22