Appendix — Dennis v. City of Easton
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FILED
N99 = 55 MAY 24 2002
; In The
SUPREME COURT OF THE GNITED STATES
October Term 2001
RICHARD DENNIS and PENELOPE DENNIS
Petitioners
Vv.
CITY OF EASTON and EASTON
BOARD OF HEALTH
Respondents
On Petition for Writ Of Certiorari
To The United States Court of Appeals
For The Third Circuit
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Richard J. Orloski
Attorney for Petitioners
ORLOSKI, HINGA, PANDALEON
& ORLOSKI
111 N. Cedar Crest Boulevard
Allentown, Pennsylvania 18104-4602
scence Itt TT AEC ra
ALAIN NSA TOR I, OAT BI ORE
TABLE OF CONTENT.
PAGE
Order of Supreme Court of Pennsylvania
dated March 1, 2002, per curiam................ la
Order & Opinion of Commonwealth Court
of Pennsylvania dated 6/28/01 per
oie, ee ee
Order & Opinion of Court of Common
Pleas of Northampton County dated
9/27/00 per Freedberg, J.............ecccceecece-... 14a
Order & Memorandum of United States
District Court Eastern District of Pa
per Troutman, SJ dated 1/22/96.................. 3la
Affidavit of Penelope Dennis..................... 78a
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
RICHARD DENNIS : 575 M.D. Alloc. Dkt. 2001
And PENELOPE
DENNIS : Petition for Allowance of Appeal
From
Petitioners : the Commonwealth Court
- :
CITY OF EASTON
And EASTON
BOARD OF HEALTH:
Respondent
ORDER
PER CURIAM:
AND NOW, this 1st day of March, 2002, the Petition For
Allowance of Appeal is denied.
Attest: Mar — 1 2002
IREME M. BIZZOSO, ESQUIRE
DEPUTY PROTHONOTARY
la
IN THE COMMONWEALTH COURT OF
PENNSYLVANIA
Richard Dennis and Penelope Dennis:
Appellants : NO. 2322 C.D. 2000
Vv ;
City of Easton and Easton Board
Board of Health
ORDER
AND NOW, this 28th day of June, 2001, the order of
the Court of Common Pleas of Northampton County in the
above captioned matter is hereby AFFIRMED.
BONNIE BRIGANCE LEADBETTER, Judge
June 28, 2001
IN THE COMMONWEALTH COURT OF
PENNSYLVANIA
Richard Dennis and Penelope Dennis:
Appellants : NO. 2322 C.D. 2000
v.
City of Easton and Easton Board =: Argued: June 4, 2001
Board of Health
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE BONNIE BRIGANCE
LEADBETTER, Judge
HONORABLE JOSEPH F. MCCLOSKEY,
S.J.
2a
OPINIONS NOT REPORT
MEMORANDUM OPINION BY JUDGE
LEADBETTER
FILED: June 28, 2001
Richard and Penelope — appeal from the entry
of summary judgment in favor of the City of Easton (City)
and the Easton Board of Health (Board) in the Dennises'
action stemming from the 1994 closure of the neighborhood
convenience store they owned and operated. The Court of
Common Pleas of Northampton County granted summary
judgment because federal due process and equal protection
claims were collaterally estopped and, inasmuch as the
Dennises no longer own the store, judicial review of the
Board's decision to close the store is moot. We affirm.
On December 11, 1991, the City Sanatarian, Edward
Ferraro, inspected the Dennis store. Based on his inspection,
Ferraro issued a notice directing the Dennises to correct
3a
;
numerous conditions on the premises that violated the City's
Health Code. The Denises did not dispute the existence of
the conditions listed on the violation notice by an appeal to
the Board of Health. During the following two and one-half
years, Ferraro endeavored, by sending warning letters,
conducting re-inspections and meeting with the Dennises, to
have the violations corrected. On May 17, 1994, Ferraro
closed the store by posting the premises and delivering a
letter to the Dennises listing the still uncorrected violations.
The Dennises timely requested a review hearing before the
Board of Health pursuant to §1191.11 of the City Health
Code.’
4a
' Section 1191.11(a) of the Easton City Health Code provides (a) Any
person aggrieved by a notice may request and shall be granted a hearing
in the manner provided in this section. The person requesting a hearing
shall, within ten days from the day the notice was served, file in the
Office of the Secretary of the Board a petition for a hearing on forms
provided by the Board. The Secretary of the Board shall immediately
refer the petition to the Board which shall give the petitioner written
notice thereof. The hearing shall be held before the Board not more than
thirty days from the day the petition was filed. The petitioner shall have
the right to appear at the hearing in person or to be represented by an
attorney or by any other person..
On June 30, 1994, following a hearing, the Board
sustained the closure of the store. The Dennises did not
appeal the Board's decision. They filed a complaint for
damages in common pleas
claiming that the "arbitrary and capricious" closure of their
store was in violation of federal constitutional guarantees of
due process, and equal protection.” The City and Board
removed this action to the Untied States District Court for
the Eastern District Of Pennsylvania, where the matter
underwent compulsory arbitration. After the arbitrators
entered their award for defendants, the Dennises requested
de novo review by the district court. The district court
granted summary judgment in favor of defendants on the
claims for violations of procedural due process and equal
protection. On the claim that the City acted arbitrarily and
Sa
? The first complaint was filed under Northampton County docket no.
1994-C-5915.
capriciously in closing the store, the court concluded that it
“would essentially be conducting an appellate review of the
Board of Health's determination", an exercise it was not
authorized to perform. For this reason, the _— dismissed
that claim without prejudice. Dennis v. City of Easton,
(E.D.Pa., No. 94-CV-50731, filed January 24, 1996). The
United States Court of Appeals for the Third Circuit affirmed
without opinion.
Shortly thereafter, the Dennises filed a second
complaint in common pieas seeking to have the closure "set
aside and reviewed" and requesting damages for "pain,
suffering, mental anxiety, embarrassment and humiliation"
and "loss of their livelihood" resulting from arbitrary and
capricious closure of the store. On the City's motion for
summary judgment, common pleas concluded that the
decision of the district court collaterally estopped claims
based on violations of procedural due process and equal
6a
protection in connection with the store closure. Therefore,
common pleas entered partial summary judgment in favor of
the City on the Dennises' claim for damages. As to the claim
for review of the Board's decision sustaining closure of the
store, common pleas determined that, inasmuch as no
stenographic record had been made of the hearing before the
Board on June 30, 1994, the matter must be remanded
pursuant to Local Agency Law, 2 Pa. C.S. §§751-754°
so that a full and complete record can be made and
stenographically recorded concerning the basis for closing
the plaintiff's store.' Dennis v. City of Easton, (Northampton
County, No. 1996-C-1359, opinion and order filed May 14,
1997). Meanwhile, on April 10, 1997, a complaint in
mortgage foreclosure had been filed against the Dennises
7a
> Common pleas remanded to the Board pursuant to 2 Pa. C.S. Section
754(a), which provides: Incomplete record. — In the event a full and
complete record of the proceedings before the local agency was not
made, the court may hear the appeal de novo, or may remand the
proceedings to the agency for the purpose of making a full and complete
record or for further disposition in accordance with the order of the court.
alleging default of payments since September 27, 1991.
On March 3, 1999, the Board convened a hearing.
Based on evidence that the Dennises' store and residence had
been sold to the foreclosing creditors at sheriff's sale on
November 7, 1997 and now belongs solely to Richard and
Barbara Young, the Board concluded that the Dennises
lacked standing and dismissed their administrative review.
The Dennises did not appeal the Board's decision. Rather,
the filed their third complaint.
This third complaint, from which the present appeal
arises, sets forth in three counts, claims for: (1) review under
Local Agency Law of the store's closure; (2) damages, under
42 U.S.C. §1983, for violation of procedural due process
guarantees under the federal and state constitutions, and; (3)
damages for the "economic and non-economic losses"
resulting from closure of their store without " the prompt and
timely post-deprivation hearing as mandated by state law,
8a
and as required by the [remand] Order...[in violation of] Due
Process of Law and the Equal Protection of the Laws".’ The
City and its Board of Health moved for summary judgment.
Following argument, common pleas granted the motion,
concluding that:
~ Dennis v. City of Easton, (Northampton County, No. 1999-C-
2133,
The hearing held by the Board of Health
on March 3, 1999, complied with this
court's order dated May 14, 1997. The
record from that proceeding clearly
demonstrates that plaintiffs' claims that the
Board of Health acted arbitrarily and
capriciously were moot and that the Board
was justified in dismissing plaintiffs'
claims. Furthermore, because the
dismissal of plaintiffs' claims by the Board
was proper, plaintiffs were not denied due
process or equal protection. Plaintiffs
therefore cannot recover under any of their
three causes of action and defendants are
entitled to judgment as a matter of law.
9a
* While it is not clearly stated in the complaint, plaintiffs characterize
both counts 2 and 3 in their appellate brief as, "for civil liability under the
Federal Civil Rights Act Of, 42 U.S.C. Section 1983."
ada einstein
se ae iS SRST NG NN SRL AREA i As
filed November 27, 2000), slip op. at 7. In the present appeal,
the Dennises contend that the sale of the store in 1997 has not
mooted their claim for damages: a claim they assert arises
under 42 U.S.C. § 1983 as a result of the Board's refusal to
conduct the due process hearing as common pleas directed in
its order of May 14, 1997. The Dennises argue that their
present claim is not collaterally estopped by the federal —
decision because the Board violated anew their right to due
process when it declined o proceed with the hearing. There
is no merit to these contentions.”
The federal district court held that the pre-closure
notices of continuing health code violations and the 1994
post-closure review hearing before the Board, albeit not
stenographically transcribed, afforded the Dennises all the
10a
* In reviewing the entry of summary judgment, we examine the record in
the light most favorable to the non-moving party and will affirm only
when there is no issue of material fact and the movant is entitled to
judgment ass a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 98,
674 A.2d 1038, 1041 (1996).
due process to which they were entitled. In his very thorough
opinion for the U.S. District Court for the Eastern District,
Senior Judge Troutman summarized the decision:
Thus, it is apparent that both the notice and
the hearing component of the Health Code
provided for adequate due process as
required by the Fourteenth Amendment.
Additionally, it is clear from the evidence
that the defendants followed the notice and
hearing procedures set forth in the Health
Code. Consequently, plaintiffs have failed
to demonstrate that there is a genuine issue
of material fact in dispute regarding denial
of procedural due process.
Dennis v. City of Easton, (E.D. Pa. No. 94-CV-5073, filed
January 24, 1996), slip op at 23. This ruling collaterally
estops the Dennises from maintaining any claim based on
alleged denial of procedural due process associated with the
closure of the store itself. The Dennises' claim under §1983 |
does not exist in the absence of a constitutional civil rights
violation, seeFarrar v. Hobby, 506 U.S. 103, 115 (1992), and
the Dennises are collaterally estopped from asserting this
lla
SMe Siew se
Nenana, Sgt EON RAN A SIRE TEAL
claim.
Moreover, to the extent that the Dennises attempt, in
their third complaint, to fashion a Section 1983 claim based
on the Board's dismissal of the remand hearing, such a claim
is without merit. When common pleas remanded the matter,
it did so in order to facilitate judicial review pursuant to the
Local Agency Law’, a review which could lead to reversal of
the administrative action, but which would not provide for
damages. When the Board convened the remand hearing, it
became evident that the Dennises had long since been
divested of any interest in the property. This rendered moot
any further review under the Local Agency Law of the
administrative decision to close the store. Clearly, dismissal
of a claim which has become moot is not a violation of due
' 12a
° We note that the Dennises, by filing the three complaints, never
properly pursued a timely judicial review of the Board's 1994 decision
sustaining the closure of the store. However, the appropriateness of
common pleas’ undertaking such a review in the context of the second
complaint is not an issue before us in the present appeal.
process.
The Dennises have been afforded due process; this
point has been fully litigated and finally determined; further
litigation of the issue, in the guise of a Section 1983 claim or
in any other manner, is estopped. Further, judicial review
under Local Agency Law is undeniably moot in light of the
fact that the Dennises no longer held any interest in the
property. For these reasons, no claims by the Dennises
remain to be litigated. The City and its Board of Health are
entitled to judgment as a matter of law and, therefore,
common pleas properly entered summary judgment in their
favor. Accordingly, we affirm.
BONNIE BRIGANCE LEADBETTER Judge
13a
*
Sead WE as NAAR SEE ATLL BANA LEE OLE ASE IIE Aer sairinns A. ie
IN THE COURT OF COMMON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL DIVISION —- LAW P
RICHARD DENNIS and PENELOPE ) |
DENNIS ) NO. 1999-C- |
2144
Plaintiff )
V. )
CITY OF EASTON and EASTON BOARD )
OF HEALTH, )
Defendants )
ORDER OF THE COURT
AND NOW, this 27th day of September 2000, .
defendants' motion for summary judgment is hereby granted.
BY THE COURT,
Robert A. Freedberg, P.J.
IN THE COURT OF COMMON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL DIVISION —- LAW
RICHARD DENNIS and PENELOPE )
DENNIS ) NO. 1999-C-
2144
Plaintiff )
v. )
CITY OF EASTON and EASTON BOARD )
OF HEALTH, )
Defendants )
OPINION OF THE COURT
This case is before the court on defendants' motion
for summary judgment. Briefs were filed by both parties and
the case was listed for the argument list of August 29, 2000.
For the reasons stated in the following opinion, the
defendants' motion will be granted.
BACKGROUND
This action constitutes the third lawsuit filed by
plaintiffs in response to an order of the City of Easton Board
ee eT ee ee eee eee
15a
of health that closed a business operated by
plaintiffs known as Penny's Corner Store. On May
rf, 1994, the City Sanitarian closed the store for
alleged violations of the City Health Code. In
response to the closing, plaintiffs requested a
hearing before the Board of Health. A hearing was
held on June 30, 1994, after which the Board of
Health issued a decision affirming the closure of
plaintiffs' store.
On July 25, 1994, plaintiffs filed an action
before this court asserting that the Board of health's
decision was arbitrary and capricious and that
plaintiffs' due process and equal protection rights
had been violated. The defendants had the case
removed to federal court and moved for summary
judgment. On February 24, 1995, a federal
16a
arbitration panel heard the matter and found for
defendants on all counts.
Plaintiffs appealed the decision to the District
Court for the Eastern District of Pennsylvania. On
January 22, 1996, the Honorable E. Mac Troutman,
S.J., issued a memorandum opinion and order
granting defendants’ motion for summary judgment
as to the claims of violations of equal protection and
due process but dismissing without prejudice the
claim challenging the — of Health's decision as
arbitrary and capricious.
Plaintiffs initiated the second lawsuit on
February 20, 1996, asserting that: (1) they did not
receive notice that their store was in violation of the
City Health Code or that it would be closed; (2) they
did not receive a hearing before the Sanitarian
17a
closed their store; and (3) the Board of health's
decision was arbitrary and capricious. Defendants
again moved for summary judgment. On May 14,
1997, this court ruled that plaintiffs were
collaterally estopped from pursuing their claims as
to the issues of notice and hearing. As to the claim
‘that the Board of health's decision was arbitrary and
capricious, this court remanded the matter to the
Board of Health so that a full and complete record
could be made and_ stenographically recorded
concerning the basis for the closing of plaintiffs’
store. See 2 Pa. C.S. §754(a).
A hearing was held on march 3, 1999, before
the Board of Health. The testimony was
stenographically. recorded and transcribed. Richard
A. Young testified that the subject property was
18a
currently titled in his and his wife's names and that
he and his wife purchased the property on October
30, 1998, from Nathan and Jeanette Reibman. The
Reibmans had previously filed a complaint on April
10, 1997, alleging that plaintiffs herein were in
default on a mortgage that the Reibmans held on the
property. On June 2, 1997, a writ of execution was
issued and the property was sold at sheriff's sale on
November 7, 1997. Young further testified that he
had no plans to sell or lease the property to the
plaintiffs.
After the hearing, the Board of health held
that, because the Youngs currently owned the
property, plaintiffs lacked standing to challenge the
closing of the store. Plaintiffs then filed their third
lawsuit on March 25, 1999, asserting that they were
19a
entitled to a hearing on whether the prior
adjudication affirming the closing of the store was
arbitrary and capricious and that the Board of
Health's refusal to hear plaintiffs’ claims at the
march 23, 1999 hearing violated their due process
and equal protection rights. Defendants filed their
instant motion for summary judgment.
DI ION
Summary judgment may be granted when
there is no genuine issue as to any material fact or
when an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts
essential to the cause of action, thus entitling the
moving party to judgment as a matter of law. Pa.
R.C.P. 1035.2. The record must be examined in the
light most favorable to the non-moving party, and all
20a
doubts as to the existence of a genuine issue of
material fact must be resolved against the moving
party. Ertel v. Putriot-News Company, 674 A.2d
1038, 1041 (Pa. 1996).
Under 2 Pa. C.S. §754, relating to the
disposition of an appeal from a local agency, our
course of action depends on whether or not a full and
complete record was made of the proceeding before
the Board of health. As previously mentioned, the
hearing was stenographically recorded and
transcribed, thus qualifying as a full and complete
record. We will therefore proceed under 2 Pa. C.S.
§754(b), which provides that appellate review of an
administrative order is limited to determining
whether: (1) constitutional rights were violated; (2)
the adjudication is in accordance with law; (3) an
21la
error of law or a violation of the administrative
agency procedure has occurred; or (4) the necessary
findings of fact are supported by substantial
evidence. Plaintiffs' first cause of action arises
under the Administrative Agency Law, 2 Pa. C:S.
§751 et seq. Plaintiffs allege that the decision to
close their store was sdhievens and capricious and
contrary to law. Plaintiffs assert that, pursuant to
Order of Court dated May 14, 1997, they were
entitled to a hearing before the Board of Health and
that the Board's dismissal based on lack of standing
was erroneous.
Standing under the Local Agency Law is
defined in 2 Pa. C.S. §752, which states: "[a]ny
person aggrieved by an adjudication of a local
agency who has a direct interest in such
22a
adjudication shall have the right to appeal
therefrom to the court vested with jurisdiction of
such appeals by or pursuant to Title 42 (relating to
judiciary and judicial procedure)." This standard is
more liberal than the traditional standing
requirements. Nernberg v. City of Pittsburgh, 620
A.2d 682, 695 (Pa. Cmwlth 1993). A person
aggrieved must have a direct interest that is
adversely affected by the action that he seeks to
challenge. Jd. n. 8. "One has a direct interest. .if he
is able to show that the adjudication causes harm to
an interest of his; i.e, he must show that the
claimed harm to his interest in be said to have
resulted in some concretely demonstrable way from
the adjudication." Jd.
The adjudication of the Board of health shut down
23a
plaintiffs' business. Thus, it is clear that plaintiffs
had a direct interest that was adversely affected by
the Board's decision. The Board's conclusion that
plaintiffs lacked standing was therefore erroneous.
The plaintiffs had standing to challenge the prior
adjudication that closed plaintiffs’ store.
"It has been held, however, that where a court
makes a correct ruling, order, decision, judgment, or
decree but assigns an erroneous reason for its action,
an appellate court will affirm the action below where
the correct basis for the ruling, order, decision,
judgment, or decree is clear upon the record." Haney
v. Workmen's Compensation Appeal Bd., 442 A.2d
1223, 1226 (Pa. Cmwlth. 1982). The Haney court
noted that "the same rule of law applies when...an
administrative agency assigns an erroneous reason
24a
to a correct decision and the record clearly shows the
iat basis for that decision." Id. (citing
Hankinson v. Dept. of Public Welfare, 425 A.2d 624,
627 (Pa. Cmwlth. 1981).
The record clearly shows that the adjudication
dismissing plaintiffs' appeal was supported by the
fact that plaintiffs no longer owned or had any
interest in the subject property. "Intervening
changes in the factual matrix of a pending case,
which eliminate an actual controversy and make it
impossible for the requested relief to be wanted
render a legal question moot." Zemprelli v.
Thornburgh, 466 A.2d 11232, 1124 (Pa. Cmwlth.
1983). "[T]o avoid dismissal for mootness, an actual
case or controversy must exist at all stages of the
administrative or judicial process." Metro
25a
Transportation Company v. Pennsylvania Public
Utility Commission, 563 A.2d 228, 230 (Pa. Cmwilth.
1989). "[W]hen the court or agency is not able to
grant effective relief, a case will be dismissed as
moot." Jd. Plaintiffs are seeking to overturn the
adjudication that closed their business. Plaintiffs
cannot reopen the store, however, because they no
longer own or have any interest in the property.
Furthermore, the testimony showed that the present
owners had no intention of leasing or selling the
property to plaintiffs. Thus, the case was properly
dismissed by the Board of Health because the Board
of Health would not have been capable of granting
effective relief, thereby rendering the case moot.
Plaintiffs argue that they should be able to
proceed with the claims because, if it is determined
26a
that the closing of the store was done arbitrarily and
capriciodily, they are entitled to damages. Plaintiffs
do not cite any authority for the proposition that an
aggrieved party can recover monetary damages
based on a finding of improper agency action under
the Public Health Code of the City of Easton or
under the Local Agency Law.
The provisions of the Local Agency Law, 2 Pa.
C.S. §751 et seq do not provide a cause of action for
damages. In addition, "when an adjudication is not
affirmed the court may only enter an order
authorized by the Judicial Code." In re Leopardi 532
A.2d 311, 315 (Pa. 1987) (interpreting 2 Pa. CS.
§754). The Leopardi Court held that, even if an
appellate court reverses the agency adjudication, it
cannot award relief that could not have been
27a
awarded by the agency. Id. (interpreting 42 Pa. C.S.
§706, relating to the disposition of appeals and the
effect on appeals brought under the Administrative
Agency law).
| There is no provision for an award of damages
under the City Health Code. In fact, §1191.11 of the
Code states that, "[a]fter the hearing, the Board
shall sustain, modify or revoke the notice of the
Public Defender. " Thus, the only remedies
available to plaintiffs are modification or revocation
of the notice issued by the Sanatarian. Plaintiffs
would not be able to obtain an award of damages
from either the Board of Health or this Court and,
therefore, are not entitled to proceed with those
claims.
Plaintiffs, in their second and third causes of
28a
action, assert that the Board of Healtb violated
plaintiffs’ due process and equal protection rights by
intentionally delaying the scheduling of a hearing
and by failing to provide a full hearing. There is no
evidence of record to support plaintiffs' contention
that the Board intentionally delayed the scheduling
of a hearing. Furthermore, as previously discussed,
it was unnecessary to hold a full hearing because
plaintiffs' claims had become moot. Thus, plaintiffs
were not entitled to proceed with any claims before
the Board of Health and there was no violation of
due process or equal protection.
CONCLUSION
The hearing held by the Board of Health on
Mach 3, 1999, complied with this court's order dated
May 14, 1997. The record from that proceeding
29a
clearly demonstrates that plaintiffs' claims that the
Board of Health acted arbitrarily and capriciously
were moot and that the net was justified in
dismissing plaintiffs' claims. Furthermore, because
the dismissal of plaintiffs' claims by the Board was
proper, plaintiffs were not denied due process or
equal protection. Plaintiffs therefore cannot recover
under any of their three causes of action and
defendants are entitled to judgment as a matter of
law.
WHEREFORE, we enter the following order:
30a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
RICHARD DENNIS and :
PENELOPE DENNIS, husband: CIVIL ACTION
and wife, and LORETTA M.
DENNIS, : 94-CV-5073
Plaintiffs :
We ures : FILED Jan. 23,
CITY OF EASTON, et., al : 1995
TROUTMAN, S.J.
RDER
AND NOW, this 22nd day of January, 1996,
upon consideration of defendants' motion for
summary judgment on all counts of plaintiffs’
complaint (Doc. # ) defendants' memorandum of law
in support thereof, plaintiffs' response thereto, and
all other relevant matters of record, it is hereby
ordered, adjudged and decreed that the motion is
GRANTED.
_ IT IS FURTHER ORDERED judgment is
3la
entered in favor of all defendants and against all
plaintiffs on all counts of the complaints.
ENTERED 1/24/96
E. MAC TROUTMAN, S.J.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
RICHARD DENNIS and : :
- PENELOPE DENNIS, husband: CIVIL ACTION
and wife, and LORETTA M. :
DENNIS, : 94-CV-5073
Plaintiffs ;
vs.
CITY OF EASTON, et., al
TROUTMAN, S.J.
MEMORANDUM
The above captioned matter is now before the
Court on the motion of defendants, City of Easton,
Edward J. Ferraro, Robert S. Stein, Doris Asteak,
Paul Schleuter, Howard B. White and the Easton
32a
Board of Health (hereinafter "“defendants") for
summary judgment. This action arises from the
closing of plaintiffs' procedural due process rights,
first, by failing to provide adequate notice to
plaintiffs prior to the closure, and second, by failing
to provide an opportunity to be heard in compliance
with due process safeguards. In Count II, plaintiffs
allege that defendants deprived them of equal
protection wel the Constitution in closing
plaintiffs' store while purportedly failing to enforce
the Health Code against other "mom and pop" stores
in Easton. Count III alleges that the Board of
Health's decision to validate the closure by the City
lacked an adequate factual basis, and, therefore, is
in essence an appeal of the Board of Health's
decision.
33a
FACTUAL AND
PROCEDURAL BACKGROUND
Penelope Dennis, along with her husband,
Richard, and oldest daughter, Loretta, ("plaintiffs')
owned and operated Penny's, a small neighborhood
store located in Easton, Pennsylvania, since 1970.
The building is an older "double-house" which was
converted into a store/house prior to plaintiff's
ownership. The store operated solely as a
convenience store till 1987, at which time the
plaintiffs "added" a delicatessen within the store.
On December 11, 1991, the City Sanitarian,
Edward Ferraro, one of the defendants, conducted
an inspection of Penny's pursuant to express
34a
' Plaintiffs live in the "house" section of that building.
provisions in the Third Class City Code.2 Although
Ferraro determined that the store was conditionally
satisfactory, he cited several Health Code violations
which were in need of correction in order to comply
with the Health Code. Ferraro explicitly specified
the violations, along with the appropriate alii
to take in order to cure them, in an official
inspection report which he provided to the plaintiffs
subsequent to the inspection. In response to the
inspection report, plaintiffs sent a letter to Ferraro
35a
2 (a) Subject to the limitations of the Constitution of the
United States and of the Commonwealth of Pennsylvania and
the Third Class City Code and in order to carry out the
purpose and provisions of the City Health Code, the Public
Officer or any other authorized officer or employee of the
Board upon showing proper identification of office, may enter,
examine, survey and inspect any establishment, place or other
interpreted grounds or premises or parts thereof and all
persons working and equipment used in or in connection
therewith and any truck, wagon or other vehicle used in
transporting, selling or handling food at all reasonable times
and in an emergency at any time and as often as he or any of
them deem necessary. See, Easton City Health Code, Art.
1191 §1191.05(a).
~
which outlined the remedial measures’ they
anticipated taking in order to remedy the violations.
(See, Letter from Richard Dennis, Jr. to Ed Ferraro,
Exhibit "E" to Defendants' Motion For Summary
Judgment, Doc. #11).
Following the inspection of December 11,
1991, | there is evidence that Ferraro sent out
numerous letters and notices. (See, Plaintiffs'
admissions, Exhibit "L" to Doc. #11). These letters
and notices warned the plaintiffs that unless
measures were taken to correct the violations, the
City would have not alternative but to close the store
in accordance with the Health Code. Plaintiffs
acknowledged in arbitration continents that they
received several letters from defendant Ferraro. In
answers to Defendants' Request For Admissions, the
36a
plaintiffs conceded that they received letters from
defendant Ferraro on the following dates: November
2, 1993, December 14, 1993, December 16, 1993,
January 26, 1994, February 1, 1994, and February
4, 1994. These letters stressed the need for plaintiffs
to make corrections in order to avoid closure by the
City. (See Exh. "M", "N", "O", "P", "Q", and "R" to
Doc. #11). Moreover, there is also evidence on the
record which indicates that the plaintiffs in fact
responded to these warnings in letters to the City.
(See Exh. "F","G", and "H" to Doc. #11).
‘Most notably, on January 31, 1994, plaintiff
Richard Dennis sent a letter to defendant Ferraro
indicating that the Plaintiffs were "securing cost
effective ways to solve the problem," and that severe
weather conditions had impeded their progress. (See
37a
Exh. "G" to Doc. #11). On February 1, 1994, Ferraro
wrote a letter to the plaintiffs stating that no
infermation regarding remedial measures had been
supplied by the plaintiffs and additionally, that no
work permits had been issued by the City Codes and
Inspections Office. (id. Exh. "Q"; See also Plaintiffs’
Admissions, Exh. "L", paragraph 8).
Amidst the exchange of letters, on December
16, 1993, at the request of Loretta Dennis, the
Mayor of Easton conducted a meeting at his office
with the plaintiffs and Sanitarian Edward Ferraro,
assistant City Solicitor Theresa Hogan, and City
Safety Director Alvin Fairchild. At this meeting,
Loretta Dennis explained that the plaintiffs were
going to close the delicatessen, only, as of January 1,
1994. She emphasized that the closure was based on
38a
financial concerns, and not concerns about health
violations. Accordingly, on Sunday, January 1,
1994, plaintiffs closed the delicatessen as promised,
installing a partition wall closing off the deli wie
from the rest of the store.
Subsequently, on March 2, 1994, Assistant
City Solicitor Theresa Hogan wrote to plaintiffs'
attorney, Keene Jabbour, to notify him that due to
plaintiffs' ongoing violations, their license to operate
had expired and would not be renewed until the
store was in full compliance with the City Health
Code. (See Exh. "T" to Doc. #11). Finally, on May
17, 1994, two-and-a-half years after the initial
inspection, defendants Ferraro and Dr. Stein, on
their second visit to the store that day, closed down
the store and placed a placard on plaintiff's door
39a
which cited the specific remaining violations as
determined by defendants Ferraro and Dr. Robert
Stein on that day. In the course of the closing,
defendant Ferraro handed the plaintiffs a letter
which described the remaining violations along with
an explanation of the plaintiffs' right to an appeal
before the City Board of Health. (See, Exh. "U" to
Doc. #11).
The plaintiffs timely requested /@ hearing on
the closure pursuant to Section 1191.11 of the City's
Health Code. The hearing took place on June 30,
1994, before the City's Board of Health. The Board
consisted of five members, one of which was absent.
The plaintiffs’ neighbor, Doris Asteak, was one of the
40a
board members.’ Plaintiffs were represented by
their present counsel, Richard Orloski. The
plaintiffs, on the advice of counsel, chose not to
testify at the hearing, and, therefore, did not contest
the existence of the violations which supported the
City's decision to close the store. Counsel for
plaintiffs did, however, cross-examine to the City's
witnesses, Sanitarian Edward Ferraro and Health
officer Dr. Stein. Six neighbors of the plaintiffs
attended the Board meeting, intending to testify
about the conditions at the store, but the Board
4la
8 Doris Asteak, a member of the Board of Health and a
neighbor of the plaintiffs, is the mother of Alan Asteak. The
plaintiffs allege that Alan Asteak expressed a strong interest
in purchasing "Penny's" and that Asteak had actually engaged
in "serious negotiations" for the purchase of the store during
the relevant time period. It is plaintiffs’ contention that City
Officials improperly conspired to force the plaintiffs to close
their store so that Alan Asteak could then purchase the store
for a price below fair market value. See Complaint at para. 13-
25.
voted 3-1 not to permit the neighbors to testify.‘
Following the hearing, on July 25, 1994,
plaintiffs filed this action in Northampton County
Court of Common Pleas appealing from the Board's
decision upholding the closure order and asserting
due process and equal protection claims. The matter
was removed to this Court and was tried by a federal
42a
‘In opposition to Defendants’ motion for summary judgment,
plaintiffs also submitted numerous "affidavits", more properly
termed testimonials, from customers concerning their opinions
of the cleanliness of the store and their satisfaction with it as
regular customers. Such testimonials, however, are of no
significance since the Easton City Health Code vests in the city
Sanitarian the responsibility for determining violations of the
Health code in accordance with standards set forth therein.
Absent evidence that customers were aware of all of the
specific provisions of the health Code and of the compliance of
plaintiffs and other store owners with such provisions, the
opinions of and comparisons drawn by customers are utterly
irrelevant to the issues before the Court on the pending
motion.
Moreover, assuming that the testimony to be offered at the
plaintiffs’ hearing would have been similar to the proffered
affidavits, such testimony would likewise have been completely
irrelevant at that proceeding.
arbitration panel on February 24, 1995. The
arbitration panel found in favor of the defendants on
all three counts.
STANDARDS FOR SUMMARY JUDGMENT
Summary judgment shall be granted sites
there are no genuine issues of material fact in
dispute and the movant is entitled to judgment as a
matter of law. Fed. R.Civ.P. 56( c) (emphasis
added). An issue is genuine only if the evidence is
such that a reasonable jury could return a verdict for
the nonmoving party. Anderson v. Liberty Lobby
Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d.
202 (1986). In evaluating whether there are any
disputed issues and whether they are both genuine
and material, the Court must consider the facts in
the light most favorable the party opposing
43a
TO Ve EE ee ig | Re ee Te est
summary judgment and all reasonable inferences
must be drawn in favor of the nonmoving party.
Josey v. John R. Hollingworth Corp. 996 F.2d 632,
637 (3d Cir. 1993); Gray v. York Newspapers. Inc,
957 F.2d 1070, 1077 (8d Cir. 1992).
In order to obtain summary judgment, the
moving party must, on the basis of pleadings,
depositions, answers to interrogatories, and
admissions on file, demonstrate an absence of
genuine issues of material fact in dispute. Fed.
R.Civ.P. 56 (c). Once the moving party has satisfied
that requirement, the burden shifts to the
nonmoving party to present evidence that there isa
genuine issue for trial. Celotex Corp. v. Catratt. 477
US. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Furthermore, the nonmoving party is required to
44a
identify specifically the evidence upon which a
verdict in its favor may be based. Childers v.
Joseph, 842 F.2d 689 (3d Cir. 1987). Thus, the
nonmoving party is obliged to identify those facts of
record which would contradict the facts identified by
the movant. Id. Mere denials are not sufficient to
withstand the motion for summary judgment.
Equimark v. C.LT. Financial Services Corp., 812
F.2d 141 (8d Cir. 1987).
Accordingly, where the nonmoving party
bears the burden of proof on an issue, it must
identify evidence of record which suffices to
establish every element essential to the claim.
Celotex, 477 U.S. 317; Financial Services Corp. 812
F.2d 141 (83d Cir. 1987). When a record is such that
it would not support a rational finding that an
45a
essential element of the nonmoving party's claim or
defense exists, summary judgment must be entered
for the moving party. 812 F.2d 141 (8d Cir. 1987).
When a record is such that it would not support a
rational finding that an essential element of the
nonmoving party's claim or defense exists, summary
judgment must be entered for the moving party.
Celotex 477 U.S. at 322.
Plaintiffs allege in Count I that Defendants
violated their procedural due process rights which
are guaranteed under the Fourteenth Amendment of
the Constitution.® In the first instance, plaintiffs
5 The pertinent text of the Fourteenth Amendment provides:
"Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and the State wherein they reside. No state
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States: nor
hall an ive any person of life, liberty, or proper
i ue pr f law; nor deny to any person within its
jurisdiction the equal protection of the laws." (emphasis
added).
contend that the notice component of their due
process rights was deficient in the time period
preceding the closure of the store on May 17, 1994.
Additionally, plaintiffs argue that the defendants
violated plaintiffs' due process right to an
opportunity to be heard in an appropriate forum.
At the outset we note that the requirements of
procedural due process apply only to deprivations of
liberty and property interests encompassed under
the Fourteenth Amendment. Mullane v. Central
Hanover Bank and Trust Company, 339 U.S. 306, 94
L.Ed. 865, 70 S.Ct. 652 (1950). In challenging the
state's actions for a violation of procedural due
process, a plaintiff, in addition to proving that the
state deprived it of a protected property interest,
must establish that the state procedure for
47a
challenging the deprivation does not satisfy the
requirements of due process. Parratt v. Taylor, 451
US. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981)
(emphasis added). Due Process requires at a
minimum that deprivations of life, liberty or
property by the State be accompanied by notice and
an opportunity for hearing which is suitable to the
nature of the case. Mullane v. Centra] Hanover
Bank and Trust Company, 94 L.Ed. at 873 (1950),
(Court struck down on due process grounds a New
York statute that allowed a trust company, when it
sought a judicial settlement of its trust accounts, to
give notice by publication to all beneficiaries even if
the whereabouts of the beneficiaries were known;
the Court held that personal notice in such
Situations was required and State that "when notice
48a
is a person's due, process which is a mere gesture is
not due process); Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493,
84 L.Ed.2d 494 (1985), (Court concluded that where
the interest being terminated was a public-sector
- job, a full adversarial evidentiary hearing would
"intrude to an unwarranted extent on the
government's interest in quickly removing an
unsatisfactory employee").
Due process, as interpreted by the Supreme
Court, is not a rigid concept. Rather, it varies with
the particular situation. Zinermon v. Burch, 494
U.S. 113, 108 L.Ed.2d 100, 110 S.Ct. 975 (1990).
"The very nature of due process negates any concept
of inflexible procedures universally applicable to
every imaginable situation." Mitchell v. W.T. Grant
49a
Co., 416 U.S. 600, 610, 40 L.Ed.2d 406, 415, 94 S.Ct.
1895, quoting Cafeteria Workers v. McElroy 367
U.S. 886, 895, 6 L.Ed.2d 1230, 81 S.Ct. 1743 (1961);
Morrissey v. Brewer 408 U.S. 471, 33 L.Ed.2d 484,
92 S.Ct. 2593 (1972) ("Due process is flexible and
calls for such procedural protections as _ the
particular situation demands").
Underscoring this notion of flexibility in due process,
the Supreme Court has adopted a balancing of the
interests approach in assessing what specific process
is due for a particular deprivation. The costs of
requiring a particular set of procedures is weighed
against the benefits from the use of those
50a
6 The interests which are balanced include the private interest
that will be affected by the official action along with the
possible length of a wrongful deprivation, the likelihood of
governmental error and the probable valve of additional
procedural safeguards, and the significance of the
governmental interest involved. Mathews v. Elridge, 424 U.S.
391, 96 S Ct. 893, 47 L.Ed.2d 18 (1976).
~
procedures. Mathews v. Elridge, 425 U.S. 391, 335,
96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). (in holding
that Social Security disability benefits could be
terminated without a prior evidentiary hearing, the
Court weighed the costs of the procedures against
the benefits).
Applying these principles to the case before
us, our initial inquiry is whether the plaintiffs have
suffered a deprivation of property or a liberty
interest which would invoke the protections of the
due process clause. Clearly, plaintiffs have a
substantial property interest in operating their
store. In closing the store, therefore, the City
deprived the plaintiffs of a significant property
interest.
The Fourteenth Amendment, however, does
5la
not protect against all deprivations of life, hberty, or
property by the State, but only against deprivations
"without due process of law." Parratt v. Taylor, 451
U.S. 527, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981);
Baker v. McCollan, 443 U.S. 137, 61 L.Ed.2d 433, 99
S.Ct. 2689 (1979).
Accordingly, our next step is to assess
whether the plaintiffs were accorded the appropriate
procedural due process required by the Fourteenth
Amendment. Initially, we will analyze the City's
procedure for providing notice and determine
whether it satisfies the notice requirement of due
process.’
7 The Supreme Court has stated that because "minimum
[procedural] requirements [are] a matter of federal law, they
are not diminished by the fact that the State may have
specified its own procedures that it may deem adequate for
determining the preconditions to adverse official action.” Vitek
v. Jones, 445 U.S. 480, 491, 63 L.Ed.2d 552, 100 S.Ct. 1254
(1980). ;
The City's procedure for providing notice of
Health Code violations is set forth in the following
provision of the Health Code, which is found in
Section 1191.09:
(b) The notice shall:
(1) Be in writing;
(2) Include a statement of the reasons why it is being
issued.
(3) Specify a reasonable time for the performance of
act or acts required to abate violation; and
(4) Inform the person responsible for compliance of
his right of hearing.
In evaluating the notice provision cited above,
we must determine whether this procedure is
sufficient to meet the notice component of due
process, as interpreted by the Supreme Court.
Regarding the Due Process requirement of
notice, the Supreme Court has stated , "fa]n
elementary and fundamental requirement of due
process...is notice reasonably calculated, under all
53a
the circumstances, to apprise interested parties of
the pendency of the action and afford them an
opportunity to present their objections." Mullane,
339 U.S. at 315; 94 L.Ed. at 873. Milliken v. Mever
311 U.S. 457, 85 L.Ed. 278, 61 S.Ct. 339: Grannis v.
Ordean, 234 U.S. 385, 58 L.Ed. 1368, 34 S.Ct. 779.
As such, the notice must reasonably convey the
required information and allow a reasonable time
for the interested party to make an appearance.
Mullane 94 L.Ed. at 873 (emphasis added).
In the present case, it is apparent that the
notice provision of the City's Health Code complies
with the requirements of due process. It provides for
written notice which not only explains the reasons
for which it is being issued but delineates the steps
that those affected should take in order to correct
54a
the situation. This requirement of explaining the
violations and the necessary corrections meets the
due process threshold requirement of "reasonably
conveying the required information.”
Furthermore, the provision allows for a
reasonable period of time in which those affected can
either cure the alleged violations or prepare for an
opportunity to present their objections at a hearing.
Thus, we conclude that the required notice of Health
Code violations provides appropriate due process
safeguards, and we must now assess whether these
safeguards were followed by the City in the present
case.
The evidence on the record. clearly
demonstrates that the City's actions preceding the
closure of Penny's did not deviate from the
55a
—~
a a
requirements of the City's notice provision, and
therefore, satisfied due process. Defendant Ferraro,
upon inspecting the premises on December 11, 1991,
issued an official inspection report which cited all
the violations (Doc. #11, Exhibit "D") The report
included a narrative description of the ways in
which the violations could be corrected. A copy of
this inspection report was sent to the plaintiffs. It is
undisputed that the plaintiffs received the
inspection report. (See, n. 4), Moreover, as stated
previously, the plaintiffs sent defendant Ferraro a
letter delineating the remedial measures they
anticipated making in order to correct the violations.
(See Doc. #11, Exhibit "E"). by acknowledging the
need for such remedial measures, the plaintiffs
conceded knowledge of the existence of the cited
56a
violations, and therefore, cannot subsequently
disclaim awareness of them.
Although plaintiffs assert that no further
official inspection was conducted after they received
the December, 1991, report and that there were no
Health Code violations I the store between
December, 1993 and May, 1994, closing of the store,
such assertions are belied by their failure to deny
the existence of continuing violations until their
response to the instant motion. Previously, however,
they admitted receiving letters dated December 14,
1993, January 26, 1994, February 1, 1994, and
February 4, 1994 which referred to continuing
violations. (See, Doc. #11, Exhibit "L", Plaintiffs'
Admissions). Each such letter notes that corrections
had not been made and that continued failure to
57a
correct the violations would result in the closing of
the store. (Id Exhibits a, eS", HH. Moreover,
as noted, plaintiff's Robert (sic) and Penelope Dennis
conceded in testimony that they saw numerous
letters between December, 1991 and May, 1994,
indicating that the City still considered them to be
in violation of Health Code provisions, that the City
was threatening to close the store and that they
understood the significance of such letters.
In addition, in their own contemporaneous
written responses to defendant, Ferraro, plaintiffs do
not dispute the existence of continuing violations.
On December 17, 1993, e.g. plaintiff Loretta Dennis
acknowledged that certain conditions, including
thorough daily cleaning of the slicer and cutting
surfaces,, had to be fulfilled to permit the store's deli
58a
to remain open until January 1, 1994. Id Exh. "F").
The only reasonable inference to be drawn from
setting forth her agreement to such conditions is
that the referenced procedures had not previously
been followed. Similarly, a letter dated January 31,
1994, addressed to defendant Ferraro stated that
plaintiffs were "securing cost-effective ways to solve
the problem" (dd Exh. "G"). It is reasonable to infer
from such letter that a "problem" of which plaintiffs
were aware existed in the store.
finally, an attorney, Keene Jabbour, stating
that he represented plaintiffs, sent a letter to
defendant Ferraro dated February 8, 1994, and
explicitly stated that plaintiffs were actively
engaged in negotiations with an unspecified buyer
to sell the business, but that "If this buyer does not
59a
enter into a contract for the purchase of this
property within the next two weeks, my clients will
obtain financing to enable them to correct the
‘lati ted in the 5 ' ice dated
December of 1991." (dd Exh. "H"). Although
plaintiffs refused to admit knowledge of letters sent
to or by attorney Jabbour, they have not denied that
he represented them during this period.
We conclude that plaintiffs' own actions and
writings, as well as their sworn testimony at the
arbitration hearing establish that they received
adequate notice of the City's actions. Plaintiffs’
attempt, in response to the instant motion, to raise
disputed issues of material fact concerning the
adequacy of the pre-closing notice is wholly
ineffective, since a party cannot create factual
60a
disputes by contradicting prior testimony. Martin v,
Merrell Dow Pharmaceuticals, Inc, 851 F.2d 703 (3d
Cir. 1988).
From the day of the initial inspection, when
the violations were first cited by Ferraro, a two-and-
a-half year time interval elapsed before the closure
of the store, during which, as noted above, plaintiffs
acknowledged the violations and promised to correct
them. This was more than a reasonable amount of
time for the plaintiffs to address the situation.
In addition, upon closure of the store, the
defendants advised the plaintiffs of their right to a
hearing in a letter which was given to the plaintiffs
the day of the closure, May, 17, 1994. (See
Plaintiffs’ Admissions, Exhibit "L", para. 13,
authenticating and admitting receipt of May 17,
6la
1994 letter). As counsel for defendants submits, in
light of the fact that the plaintiffs requested and
received a hearing, it is apparent they were made
aware of their right to a hearing.
In light of the foregoing analysis, it is evident
that not only does the notice provision of the City
Health Code comply with the notice requirements of
due process, but additionally, that the defendants
did in fact follow the terms of the Health Code notice
provision. The evidence is clear that the City
methodically followed the Steps outlined in the
notice provision and allowed the plaintiffs more than
a sufficient amount of time to take appropriate
action. Perhaps most persuasive is the fact that
plaintiffs themselves admit that they received the
numerous letters that defendant Ferraro sent to
62a
them. There is, therefore, no issue of material fact
regarding whether the plaintiffs had notice of the
City's actions, since the facts of record clearly
indicate that the plaintiffs did indeed receive
sufficient notice.
Shifting our focus to the second component of
due process, the Supreme Court has held that, in
addition to the requisite notice, a fundamental
requirement of due process is the opportunity to be
heard., "which must be granted at a meaningful time
and in a meaningful manner." Parratt v. Taylor, 451
U.S. 527, 540, 68 L.Ed.2d 420, 432, 101 S.Ct. 1908,
quoting Armstrong v. Manzo, 380 U.S. 545, 552, 14
L.Ed.2d 62, 85 S.Ct. 1187 (1965).
As the Supreme Court has stated, however,
this right to be heard does not always require the
63a
State to provide a hearing prior to the initial
deprivation of Property. Parratt, 14 L.Ed.2d at 432
(Court stated that the rationale for this is based in
part on the impracticality in some cases of providing
any preseizure hearing under a State-authorized
procedure, and the assumption that at some time a
full and meaningful hearing will be available).
Essentially, all that is required is "some form of a
hearing” before the owner is finally deprived of a
property interest. Board of Regents v. Roth 408
U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972). As
such, post-deprivation remedies provided by the
State can satisfy the requirements of the due process
clause. See, e.g., Logan v. Zimmerman Brush (Co.
445 U.S. 422, 436, 71 L.Ed.2d 265, 102 S.Ct. 1148
(1982).
64a
Moreover, where the governmental interest
behind the deprivation is one which involves the
public health or the abatement of a nuisance, the
need for expediency may necessitate a seizure or
deprivation prior to the occurrence of a hearing.
See, In North American Cold Storage Co. v.
Chicago, 211 U.S. 306, 53 L.Ed.2d 195, 29 S.Ct. 101
(1908). (Supreme Court upheld the right of a State
to seize and destroy unwholesome food without a
preseizure hearing; need to protect public health an
overwhelming concern); Fahey v. Mallonee, 339 U.S.
245, 91 L.Ed. 2030, 67 S.Ct. 1552 (1947). (Supreme
Court recognized that the protection of the public
interest against economic harm can justify the
immediate seizure of property without a prior
hearing when substantial questions are raised about
65a
the competence of a bank's management).
In the present case, the hearing provision in
the Health Code provides for an appropriate post-
deprivation remedy. The primary purpose of the
Health Code is the protection of public health and
safety, a significant state interest which rationalizes
the need for w aeidiiaiiibiaitiens rather than a pre-
deprivation remedy. Moreover, the hearing
provision affords an aggrieved party an opportunity
to be heard within thirty days of the deprivation,
thereby precluding the possibility of a lengthy
66a
a
wrongful deprivation.® We conclude that by
guaranteeing the right to a hearing before the Board
of Health within forty days of the initial deprivation,
the Health Code hearing provision comports with
the requirement of an "opportunity to be heard
granted at a reasonable time and in a meaningful
manner", as mandated by the Fourteenth
Amendment.
Additionally, during the course of the hearing
in this matter, the plaintiffs were represented by
67a
8 The hearing provision reads as follows: (a) Any person
aggrieved by a notice may request and shall be granted a
hearing in the manner provided in this secuion. The person
requesting a hearing shall, within ten days from the day the
notice was served, file in the Office of the Secretary of the
Board a petition for a hearing on forms provided by the Board.
The Secretary of the Board shall immediately refer the petition
to the Board which shall set a time and place for the hearing
and shall give the petitioner written notice thereof. The
hearing shall be held before the Board not more than thirty
days from the day the petition was filed. The petitioner shall
have the right to appear at the hearing in person or to be
represented by an attorney or by any other person. (Easton
City Health Code, Section 1191.11.
ee EY OE OO ES a ee
their current counsel and were given the opportunity
to testify themselves, although they chose not to do
so on the advice of counsel. They were also afforded
the opportunity to cross-examine Mr. Ferraro and
Dr. Stein regarding their findings that the store did
not comply with various provisions of the Health
Code.
Thus, it is apparent that both the notice and
the hearing components of the Health Code provided
for adequate due process as required by the
Fourteenth Amendment. Additionally, it is clear
from the evidence that the defendants followed the
notice and hearing procedures set forth in the
Health Code. Consequently, plaintiffs have failed to
demonstrate that there is a genuine issue of
68a
material fact in dispute regarding denial of
procedural due process". We will, therefore, grant
defendants' motion for summary judgment on Count
I of the complaint.
KKK
69a
2 We note that plaintiffs contend that the City Officials
improperly conspired to close plaintiffs' store in order to harass
the plaintiffs and thereby induce them to sell the store to Alan
Asteak, the son of defendant, Doris Asteak (a City health
Board Member and neighbor of the plaintiffs) for a price below
the fair market value. Plaintiffs assert that Alan Asteak was
engaged in "serious negotiations" for the purchase of the
plaintiffs' store during the time period at issue and that it was
well known in the community that defendant Doris Asteak was
promoting the purchase of Penny's Corner Store by her son.
There is, however, absolutely no evidence which suggests that
a conspiracy existed among City Officials to force the closure of
Penny's so that Alan Asteak could purchase the store. This is
pure conjecture on the part of the plaintiffs. As counsel for the
defendants points out, the arbitration testimony of Richard
Dennis contradicts his contention that he and Asteak engaged
in serious negotiations regarding the purchase of the store.
(See Defendants' Brief, pps. 14-170.
As there is no evidentiary basis for these allegations, we will
not address the implications these allegations pose on due
process, namely, the suggestion that Doris Asteak's
participation in the Board of Health's decision fatally flawed
the hearing process.
IV. EQUAL PROTECTION
In Count II the plaintiffs allege that
defendants violated the equal protection clause of
the Fourteenth Amendment in that the defendants
treated similarly situated store owners differently.
The Fourteenth Amendment provides that
"[n]o state shall make or enforce any law which
shall...deny to any person within its jurisdiction the
equal protection of the laws." The Equal Protection
clause is only implicated where the government
makes a classification, See, Washington v. Davis.
426 US. 299, 48 LEd2d 96 S.Ct. 2040 (1976).
(Court stated that the central purpose of the Equal
Protection Clause of the F ourteenth Amendment is
the prevention of officia] conduct discriminating on
the basis of race): Graham v. Richardson, 403 U.S.
70a
3865, 29 LEd.2d 534, 91 S.Ct. 1848 (1971) dn
holding that states cannot deny welfare benefits to
aliens, the Court stated that state classifications
based on alienage, race, or nationality are ebiitiaailly
suspect and subject to close judicial scrutiny); Craig
v. Boren, 429 U.S. 190, 50 L.Ed.2d 297, 97 S.Ct. 451
(1976) (in validating a state statute which forbade
the sale of "3.2% beer" to males under the age of 21,
and to females under the age of 18, the Court held
that classifications based on gender must serve an
important governmental objective and must be
substantially related to the achievement of those
objectives) or where a fundamental right is
involved. See, Harper _v. Virginia Board of
Education, 383 U.S. 663, 16 L.Ed.2d 169, 86 S.Ct.
1079 (1966) (Court struck down an annual poll tax
71a
of only $1.50, imposed as a prerequisite for voting):
Shapiro v. Thompson 394 U.S. 618, 22 L.Ed.2d 600.
89 S.Ct. 1322 (1968) (Court invalidated the denial by
two states of welfare benefits to residents who had
not resided in the jurisdiction for at least a year).
In the present case, the plaintiffs allege that
they were treated differently from others similarly
Situated store owners in the City. As such. they
contend that the actions taken against them by the
City were violative of the Equal Protection clause.
Under the present circumstances, since there
is neither a classification nor a fundamental right at
issue, the Equal Protection clause is not applicable.
The plaintiffs are not, and do not allege that they
are members of a protected class, and as such were
subjected to improper government action on the
72a
basis of race, alienage or national origin. Rather,
the present case involves only the state's treatment
of individuals, not the state's treatment of a specific
class of people to which Plaintiffs belong. The Equal
Protection clause simply does not apply to the
adjudication of individual situations, such as the one
before us.?°
The plaintiffs offer absolutely no evidence
73a
10 Plaintiffs’ contention that Yick Wo v. Hopkins, 118 U.S. 356,
230 L.Ed.2d 220, 6 S.Ct. 1064 (1886(, applies to the present
circumstances is incorrect. In Yick Wo,, a San Francisco
ordinance barred the operation of hand laundries in wooden
buildings except with consent of the Board of Supervisors.
Although neutral on its face, the ordinance adversely affected
the rights of Chinese Americans in that the Board gave
permits to all but one of the non-Chinese applicants, but to
none of nearly 200 Chinese applicants. The Court held that
although the ordinance was neutral on its face, the
discrimination in its administration violated the due process
clause. Yick Wo, 118 U.S. 356, 30 L.Ed.2d 220, 6 S.Ct. 1064.
This discrimination, however, was directed at a class of people
based on race, a suspect class under the Equal Protection
clause. Therefore, it is wholly inapplicable to the
circumstances of the present case, where there is no such
classification.
which can support their Equal Protection claim.
Consequently, Summary judgment will likewise be
granted on Count II of the complaint.
** *
V. APPEAL OF BOARD OF HEALTH'S
DECISION
In Count ITI, plaintiffs allege that the Board
of Health's decision was arbitrary and capricious
and lacked a factual basis. In determining whether
this allegation has a legitimate basis, this Court
would essentially be conducting an appellate review
of the Board of Health's determination. Thus, to the
extent that Count III seemingly seeks relief of an
appellate nature, our initial focus is on whether this
Court possesses jurisdiction to hear an appeal from
the Board of Health's decision, particularly in light
74a
of our determinations that defendants are entitled to
summary judgment on plaintiffs' due process and
equal protection claims.
A federal district court has no authority to
review final judgments of a state court in judicial
proceedings.!! District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 476, 482, 75 L.Ed.2d 206,
103 S.Ct. 1803 (1983); Rooker v. Fidelity Trust Co..,
263 U.S. 413, 44 S.Ct. 149, 68 L.Ed.2d 362 (1923).
Moreover, review of such judgments may only be had
in the state court system and in the United States
Supreme Court. District of Columbia Ct. of Appeals
v. Feldman, 460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct.
75a
11 A state agency has been held to be a "state court" for
purposes of removal. See United States v. Pennsylvania
Environmental Hearing Board 377 F.Supp. 545, 553 (MD Pa.
1974); see also mememmnenainiaannienc: 592 F.2d 215
(3d Cir. 1979).
1303; Rooker 263 U.S. 413 (1923). This doctrine
applies whether or not the state litigation has
reached the state's highest court. Worldwide Church
of God v. McNair, 805 F.2d 888, 893 n3 (9th Cir.
1986); Sandomer v, LCCYSSA 1993 WL 245280 * 3
(E.D. Pa.).
Additionally, this rule applies even though a
plaintiff alleges deprivation of federally protected
due process and equal protection rights. Feldman,
263 U.S. 462. (Court held that a U.S. District Court
lacked subject-matter jurisdiction over bar
applicant's complaints seeking review of a state
court's denial of their petitions for waiver of a bar
admission rule requiring bar applicants to be
graduates of an ABA approved law school, even if
nges all hat state court's action
76a
was unconstitutional) (emphasis added).
Accordingly, we conclude that this Court lacks
the requisite subject matter jurisdiction to review
the judgment of the Board of Health. As stated
above, a federal district court has no authority to
review final judgments of a state court in judicial
proceedings. See, Sandomer,, 1993 WL 254280 (E.D.
Pa.). (the court held that it lacked subject-matter
jurisdiction over the plaintiff's section 1983 claim
against the defendant state agency). Thus, we will
dismiss Count III of the plaintiffs' complaint without
prejudice.
CONCLUSION
In light of the foregoing analysis, defendants’
motion for summary judgment will be granted on
both Counts I and II of the complaint. Count III
will be dismissed without prejudice for the reasons
discussed above. 17a
IN THE COURT OF COMMON PLEAS OF
NORTHAMPTON COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
RICHARD DENNIS and PENELOPE
DENNIS,
Plaintiffs,
v. :No.
:1999-C-2144
CITY OF EASTON and EASTON :
BOARD OF HEALTH,
Defendants.
PLAINTIFFS’ AFFIDAVIT IN OPPOSITION TO
DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LEHIGH
I, Penelope Dennis, being duly sworn according to
law, depose and say as follows:
PROCEDURAL HISTORY
1.0n May 17, 1994 the Defendants changed my
lifend the life of my spouse forever. 78,
eS —aeeaeeemaan
2.On May 17, 1994, Edward Ferraro, acting as a City
Sanitarian, came to Penny’s Store, posted it and ordered it
closed for business.
3.The Order of may 17, 1994, was done without any
prior court order, and solely in the discretion of Edward
Ferraro, acting as an agent for the City of Easton.
4 Since the Order of May 17, 1994, I have made three
separate distinct attempts to get the Order of May 17, 1994,
reviewed by a fair and neutral judicial forum, and I have never
had the opportunity of a court ruling on the facts of this case.
5.After the closure on May 17, 1994, I timely filed an
appeal from the ex parte order closing Penny’s Store.
6.When I arrived at the hearing scheduled for 7:30
P.M., with my lawyer and our witnesses, we are advised that
our hearing would be delayed, and that no stenographic
record would be made of the proceeding. 79a
7.1 was.accompanied by six (6) persons who were not
from the Dennis family and were identified as witnesses who
wanted our family to keep the store open.
8. Prior to the closure, there was no Inspection
Report which caused the Sanitarian to close Penny’s Store.
9. The only Inspection Report that our family had was
the one dated December 11, 1991, and ther was nothing in
that report about closing the store, or even suggesting that
there was any reason for closing down the store.
10. After a two hour wait, the hearing finally began at
about 9:30 P.M. and all of our witnesses patiently waited for
their turn to testify.
11. At the hearing, we were provided with a packet of
exhibits, and the only official Inspection was the old stale
inspection from December ] 1, 199],
12. Edward Ferraro testified that he had “voluminous
notes” showing subsequent inspections after December 11,
1991, but he did not bring them with him. 80a
13. The December 11, 1991, Inspection Report was
old and obsolete in that it related to the operation of Penny’s
Store as a “deli”, and the deli was closed long before the May
17, 1994, shutdown.
14. My lawyer advised the Board that we had six
independent witnesses who wished to be heard about the
condition of the store, but the Board voted by a 3-1 vote not
to permit the six independent witnesses to testify.
15. There was a patent bias against me and my family
at the hearing on June 30, 1994. First, there was no Official
Inspection Report relating to the Order to close the store.
Second, Edward Ferraro testified that he had “voluminous
notes” about inspections after the December 11, 1991,
inspection , but they were not being provided. Third, the
Board voted 3-1 against permitting our independent
witnesses to testify about the condition of the store. Fourth,
there was no stenographic record being made, and the board
was going to close them out using the “undisclosed secret
8la ~
voluminous” notes of Subsequent investigations. At that
point, it was obvious to me and my family that we were not
getting a fair hearing.
16. After this unfair, unrecorded hearing of June 30,
1994, I began my campaign to get a court to review the
closure, and to date, no court has ever tuled that the Order of
May 17, 1994, was proper.
17. On July 25, 1994, I timely filed a Complaint at
1994-C-5915 asking the Court to review the Order of closure
of May 17, 1994, which was affirmed by the Easton Board of
Health on June 30, 1994. A copy of the docket entries from
1994-C-5915 is attached as Exhibit A.
18. Instead of having the Court of Common Pleas of
Northampton County hear my case, the Defendants
transferred the action to Federal Court. -
19. On January 22, 1996, the Federal Court dismisses
my Federal claims concerning pre-hearing constitutional
deprivation, and explicitly geld that my state law claim of
~ a
improper closure must be heard in state court. See, copy of
‘docket entries in Federal Court attached as Exhibit B, and a
copy of Federal Court opinion attached as Exhibit C.
20. Given this Federal determination, I timely filed a
second action in State Court on February 20, 1996, again
seeking a hearing under State law reviewing the Order of
May 17, 1994, closing my store. A copy of said docket
entries are attached hereto as Exhibit D.
21. On May 15, 1997, the trial court, per Freedberg,
J. agreed that I was never given a hearing on the merits
concerning the closure, and the court specifically ordered that
the matter be remanded back to the Easton Board of Health
for a “full and complete record” to determine whether or not
the closure of May 17, 1994, was arbitrary and capricious.
22. Despite the clear and unambiguous Order of
Judge Freedberg of May 14, 1997, the Defendants
intentionally failed to doing anything from May 14, 1997,
until March 3, 1999. 83a
~
23. In other words, for about 654 days after Judge
Freedberg ordered a remand, the Defendants did not schedule
a hearing.
24, On March 3, 1999, the Defendant finally met for a
hearing at which time I appeared with my spouse and our
lawyer to get the hearing concerning the arbitrary and
capricious closure of our store on May 17, 1994.
25. In other words, after about 1,746 days after the
government closed our store, we were finally going to hear
before a court stenographer the evidence as to why the
government took our store away from us.
26. Instead of giving us the hearing ordered by Judge
Freedberg, the Defendants established that we lost Penny’s
Comer Store by an involuntary transfer, and that as of
October 30, 1998, the realty was no longer owned by us. A
copy of the hearing on March 3, 1999, is attached hereto as
Exhibit E, and the aiaiea 7 claiming that we did not have
84a
-“standing” to contest the closure is attached hereto as Exhibit
F.
27. It is true that we involuntarily lost the realty
known as Penny’s Corner Store, and that as of October 30,
1998, the record owners were Richard and Barbara Young.
28. It is equally true that, if the Defendants did not
arbitrarily and capriciously close the store on May 17, 1994,
we would have maintained our cash flow of about
$500,000.00 a year, and we would have not lost the store.
29. We lost the store solely and exclusively because of
the Order of May 17, 1994, and no court has ever ruled that
the closure was proper, even though Judge Freedberg
explicitly ruled on May 14, 1997, that we were entitled to a
hearing on this issue.
30. The government took away our store—took away
our livelihood—and caused us to lose our realty and home—
and now the government says it is OK because it happened so
long ago and our store was not really worth anything. 5,
~
31. Just so the record is clear, the realty known as
Penny’s Corner was not just our store, but was also our home
where we lived, and where we raised our children.
32. Penny’s Corner Store was how I chose to live my
life, and but for the Order of May 17, 1994, I would have |
continued operating it until my dying days. |
33. Defendants attach piles of papers to the Motion
for Summary Judgment attempting to create the illusion that
the Order of may 17, 1994, was Justified. Here is the truth
about Penny’s corner Store, and its closure on May 17, 1994.
FACTS OF CLOSURE
iE CLOSURE
34. I operated Penny’s Corner Store since September
18, 1970, and the store is named “Penny’s” because of my
name, Penelope.
35. The building is an older “double-house” which
was converted into a store/house before my husband and I
86a
purchased it,
36. The building is located in a working class
neighborhood in the West ward of Easton, and was operated
from 1970 to 1987 solely as a “Mom & Pop” convenience
store.
37. In 1988, I added a “deli” to the store, and with
both the deli and the convenience store, Penny’s was grossing
in excess of $1,000,000.00 per year.
38. Without the “deli”, we were grossing in excess of
$500,000.00.
39. The “deli” sales were never more than 40% of wet
business, and it was becoming more and more obvious to me
that the profitability of the store did not depend upon the deli,
and in fact, the convenience store was probably subsidizing
the “deli” operation.
40. The reason that the “deli” business was not
profitable was because it was so labor intensive. As a “Mom
& Pop” store, my family and I could operate the store with
87a
part-time help, and we never had more than 4 part-time
employees.
41. Once we added the deli, the business became very
labor intensive, and the payroll skyrocketed, and there were
years that we had more than 20 part-time employees.
42. The Health Department never complained about
the “Mom & Pop” Operation, and the complaints solely
related to the deli, for instance, “stove in deli cannot be used -
not of a commercial type,” —-OR— “employees in food prep
area to ware (sic) hair restraints” -OR— “organize and clean
inside walkin (sic) refrigerator: etc. See, formal inspection
report of December 20, 1991, attached as Exhibit B to
Affidavit of Loretta M Dennis in Federal Action.
43. I was Present on December 14, 1993, when
Violations, but Edward Ferraro did not deliver the letter to
Me, OF engage in any discussion with me about the purported
. 88a eo:
problems. Instead, he handed the letter to my husband who
was working in the convenience store with y daughter while I
was working in the deli area. See, Plaintiffs’ Exhibit A to
Loretta Dennis affidavit in Federal Action.
44. When Defendant’s agent, Edward J. Ferraro,
appeared on December 14, 1993, he did not even come into
the deli area, and he never passes the counter area of the
convenience store where my husband and daughter were
standing by the cash register. Certainly, Defendant, Ferraro,
did no inspect the premises, and he did not provide any type
of itemized list of defects. Defendant’s agent, Ferraro,
handed my husband the letter, and my husband told me about
it.
45. In my many years of operation, I participated in
annual inspections with the City of Easton, and the
Pennsylvania Department of Agriculture. I knew from actual
experience that the City of Eaton used a “Report of
Inspection” form similar to the one that was used on
a" 89a
December 11, 1991, which is attached hereto as Exhibit B to
Loretta Dennis Affidavit in Federal Action,
46. The letter of December 14, 1993 (Loretta Dennis
Affidavit’s Exhibit A in Federal Action) was patently false,
namely, there were no Health Code violations, there was no
official or unofficial inspections, and neither Edward Ferraro
nor anyone else from the City of Easton ever gave us written
notice of any alleged violations. Our last official inspection
by the City of Easton was December 11, 1991, and we
passed. The Pennsylvania Department of Agriculture
approved the store in an inspection on February 4, 1993.
See, Loretta Dennis Affidavit, Exhibit L in Federal Action.
47. The letter of December 14, 1993 was odd. There
Was no inspection. There was no list of violations The
Defendant’s agent, Ferraro, was making claims of violations,
but was not giving us any Suidance as to what he wanted
changed. 90a
48. Because of this odd letter, my daughter, Loretta,
telephoned the Mayor’s Office to arrange a meeting to get to
the bottom of Ferraro’s false claims of violations.
49. At my daughter’s request, there was a meeting the
morning of December 16, 1993, where the following persons
attended:
PENNY’S CORNER STORE: Loretta Dennis
attended with her father, Richard Dennis;
CITY OF EASTON: Mayor Thomas Goldsmith,
Edward Ferraro, City Sanitarian; Theresa Hogan, Assistant
Solicitor; Alvin Fairchild, City Safety Director; and a
secretary from the Health Office.
I could not attend the meeting because the Christmas
season was extremely busy, and I was filling orders at the deli
for Christmas parties.
50. My daughter and husband came back from the
meeting well pleased with the results. We were going to get
to the bottom of the false claim of unspecified violations.
x 9la -
Mayor Thomas Goldsmith was explicit, namely, Edward
Ferraro was ordered by the Mayor to do an official
inspection, and give us a written report of any violations and
a list of proposed Corrective action. That was all right by me.
Edward Ferraro could come to my store anytime and inspect
it. It was always clean. In over 20 years of Operation, no one
ever became sick from food prepared or Purchased from
Penny’s.
51. I had received letters of thanks for our food
Preparation service from former Mayor Sal Panto, current
Mayor Thomas Goldsmith, Chamber of Commerce, Warren
Hospital Association, U.S. Postal Service, Federal Aviation
Association, and numerous others.
52. At the meeting with the mayor, my daughter
volunteered to mayor Goldsmith that it was Our intention to
Stop operating the delicatessen after the Christmas season
anyway. My daughter always believed that | was working
too hard, and she wanted me out of the deli business because
92a -
she thought it was too demanding for the type of financial
return that I was getting from the deli. My daughter wanted
me to concentrate solely on the convenience store selling ©
non-food items and food items pre-packaged by the food
processors, which is exactly the way the store was run very
profitably from 1970 to 1988.
53. The reason my daughter picked after Christmas
for shutting the deli was because she knew that I already had
numerous commitments for party trays for the Christmas
season, and I was very proud of the popularity of my
Christmas trays. It would have broken my heart to disappoint
so many of my faithful and loyal customers.
54. My daughter, Loretta, was the one who kept
pushing me to stop the deli business because of the intensive
| labor that I put into the party trays. My daughter kept telling
me that the delicatessen was causing the financial problems
with Penny’s Corner Store. It was her business judgment that
the store could be made profitable by eliminating the deli
‘ 93a we
Operation, and concentrating solely on pre-packaged goods
Just as we had done for years before the deli operation.
55. On the afternoon of December 16, 1993,
Defendant’s agent, Edward Ferraro, again appeared at the
store as ordered by the Mayor, and gave my daughter a letter
demanding that we permit an immediate inspection of the
store. Again, that letter was odd. That was exactly what the
moming meeting of December 16, 1993, with Mayor
Goldsmith accomplished. We wanted the. inspection. We
wanted to know what the purported problem was. It was my
daughter’s insistence that we get a formal inspection to know
what Mr. Ferraro’s letter of December 14, 1993, was talking
about. The letter closed with the warning that, if we did not
permit the inspection, “.. the entire business Operation shall
cease.” See, letter dated December 16, 1993, attached as
Loretta Dennis Affidavit’s Exhibit C in Federal Action.
Again, this was odd. We wanted the inspection, and he was
acting as if we were interfering with his ability to inspect. |
94a ig
was there on the afternoon of December 16, 1993. Mr.
Ferraro was free to inspect as thoroughly as he wished. Mr.
Ferraro chose not to inspect.
56. The Defendant’s agent, Edward Ferraro, was
inside the building on December 16, 1993. He was
demanding an inspection. No one stopped him from
inspecting the business on December 16, 1993. The
Defendant’s agent, Edward Ferraro, made the choice on
December 16, 11993, not to inspect the premises, even
though ordered by the Mayor to do so, and even though we
wanted the inspection to clear our good name.
57. Instead of inspecting the premises, Defendant’s
agent Ferraro, made certain “verbal” observations about how
we should operate the delicatessen between December 17,
1993 and January 1, 1994. Remember, my daughter already
told Mayor Goldsmith and Defendant’s agent, Edward
Ferraro, that we were going to close the delicatessen only, as
of January 1, 1994. 95a
~ >
58. The bottom part of the letter read as follows:
"At 5:00 P.M. on January 1, 1994, the entire
business operation shall cease and not re-open until you have
fully complied with all applicable codes and all required
permits have been issued.”
When Ferraro gave my daughter this letter with this
concluding paragraph, my daughter explicitly pointed out to
him that the wording was contrary to the arrangement
concluded that morning in the Mayor’s Office. She explicitly
told Mayor Goldsmith and Edward Ferraro that we were only
closing the delicatessen on January 1, 1994, not the entire
business. The Mayor further told my daughter and husband
that Mr. Ferraro was Supposed to inspect the premises as
recited at paragraph No. 1 of the letter SO we would know
exactly what non-delicatessen repairs were required. At first,
my daughter refused to sign the letter. Then, Mr. Ferraro
advised us that her observations were correct, and {hat the
closing referred Only to the entire delicatessen Operation, not
V6a
the entire operation. Hence, my daughter signed the letter
with the understanding that the inspection would be done,
and that we were voluntarily closing the deli for our own
reasons, not because of any health violations.
59. Because Defendant’s agent, Ferraro, did not give
us a written inspection report on December 16, 1993, as
ordered by the Mayor, my daughter was suspicious. She said
that there was something weird going on. The meeting was
only that morning. Edward Ferraro was there. How could he
forget what the Mayor ordered him to do. My daughter took
it upon herself to list Ferraro’s verbal suggestions in a letter
to the City of Easton dated December 17, 1993, to avoid any
misunderstanding.
60. the five suggestions verbally made by Defendant’s
agent, Ferraro, on December 16, 1993, and reduced to
writing by my daughter in my letter of December 17, 1993,
97a
were scrupulously followed.
61. Despite the Mayor’s order for an immediate
inspection, and despite Ferraro’s demand that Penny’s Corner
Store “...submit to an immediate inspection to determine all
violations concerning minimum critical health code
requirements...” no inspection took place between
December 16, 1993, and January 1, 1994. Se, Loretta Dennis
Affidavit’s Exhibit C in F ederal Action.
62. On Sunday, January 1, 1994, I closed the
delicatessen, as Promised, and put a partition wall closing off
the area where the delicatessen workers used to work. The
deli was closed because my daughter convinced me that it
was a financial drain. There was never any health reason for
closing the deli.
63. The meeting with Mayor Goldsmith was clear,
namely, there was to be a formal inspection by Defendant’s
agent, Ferraro. The letter of December 16, 1993 (Loretta
Dennis Affidavit’s Exhibit C in Federal Action), was Clear,
namely we were to permit an “immediate inspection”.
98a
Defendant’s agent, Ferraro, however, was not inspecting the
store.
64. Because Defendant’s agent, Ferraro, was not
inspecting the store, my daughter started telephoning him
asking when he was going to appear and advise us of the
status of our modified operation now that the delicatessen
was closed. She telephoned several times trying to arrange
an appointment.
65. On Tuesday, January 11, 1994, Defendant’s
agent, Ferraro, finally appeared at the store. His appearance
was very brief, and lasted io than 15 minutes. It almost
appeared that he did not understand the prior meeting of
December 16, 1993. We were not immediately interested in
opening up the delicatessen at that point in time. We were
supposed to get back to the City with a proposal for re-
opening the deli, if we decided to re-open it. Otherwise, Mr.
Ferraro indicated everything was just fine with the
convenience store. He was only interest in telling us what we
99a .
had to do to re-open the delicatessen, and we had no
immediate plans to re-open the delicatessen, See, Ferraro’s
to what must be accomplished to re-open the deli, As
indicated, re-opening the deli was Our goal. My daughter
67. In response to Ferraro’s letter of January 26,
1994, my husband wrote a letter dated January 31, 1994,
indicating that we did not have estimates for work to be done
to re-open the deli because of the inclement Weather, and that
“we will be making a decision shortly” about whether or not
100a
we wanted to re-open the delicatessen. See, Loretta Dennis
Affidavit’s Exhibit G in Federal Action. According to the
time-stamped copy from the City of Easton, the letter was
received on February 4, 1994.
68. Prior to receiving my husband’s letter date
February 1, 1994, saying that he will be closing the entire
operation as of February 4, 1994. See, Loretta Dennis
Affidavit’s Exhibit H and Defendants’ Exhibit Q.
69. Prior to February 1, 1994, the City only identified
the deli operation as the source of any potential problem, and
the City accepted our solution of closing down the
delicatessen until repairs could be made IF we wanted to
operate a deli. The letter of February 1, 1994, was the first
time anyone indicated that operation of the convenience
store, without a deli, might also be a problem.
70. The letter of February 1, 1994, caught all of us
completely off guard. The December 16, 1993 letter (Loretta
Dennis Affidavit’s Exhibit C), said there was supposed to be
10la ~
IEA z A SPR LIE NER Hla 5 oe lh eg
i
& Xu
‘|
:
1
> me
Pa ine ie Ses GOR A aot.
72. The discussions about Purchasing the store were
Serious and substantial discussions. Alan Asteak and his
family were well aware of the volume of business that was
~ 102a
conducted from the store. People were always coming and
going, and they could personally see it. The discussions
began by Alan Asteak going to our lawyer, Nathan Reibman.
From our perspective, Alan Asteak was acting like a very
serious buyer.
73. It is interesting to note that the entire impetus for
this matter came from a letter dated October 8, 1993, from
Paul L. Singley, Chief Code Administrator. Alan’s father,
Marvin Asteak worked as a Code Enforcement Officer for
the City of Easton. Alan’s mother, Doris Asteak, was a
member of the Easton Board of Health.
74. The letter of February 1, 1994, aroused my
husband’s suspicion that this was not about code violations,
or health code violations, but the Asteak’s desire to purchase
the business. See, deposition of Nathan Reibman attached
hereto as Exhibit G.
75. On February 4, 1994, I attended a meeting as
103a
follows:
PENNY’S CORNER STORE: my husband, my
daughter Loretta Dennis, Attorney Keene Jabbour and I.
CITY OF EASTON: Edward Ferraro, Alvin Fairchild
and a secretary.
76. At the meeting of February 4, 1994, the entire
thrust of the meeting was the repairs that were supposed to
be made to re-open the deli. Both Fairchild and Ferraro
wanted to see plans from builders about renovating the
building to re-open the deli. We told them we might not re-
agreed that we were not going to re-open the deli unless we
make structural repairs to the building.
77. On or after February 4, 1994, we received two
mailings from the City of Easton:
a. Letter from Ferraro telling us that the
deli must remain closed. (Loretta Dennis Affidavit’s Exhibit I
in Federal Action.). 104a
b. Letter from Ferraro telling us how to
renew our Health License for operation of convenience store.
Loretta Dennis Affidavit’s Exhibit J in Federal Action.
78. Note that the letter of February 4, 1994, appears
to incorporate the last official inspection of December 11,
1991. In the last official report, Defendant’s agent, Ferraro,
approved us. See, Loretta Dennis Affidavit’s Exhibit B in
Federal Action.
79. In the letter of February 4, 1994, Defendant’s
agent, Ferraro, asked us to resubmit the application for
license, and the application was returned to him and approved
by him on page 4 where Ferraro signed off. See, Loretta
Dennis Affidavit’s Exhibit K, and check for $100.00 dated
January 27, 1994 in Federal Action.
80. From our perspective, we did everything that the
City of Easton asked, namely, we voluntarily closed down the
deli on January 1, 1994, and kept it closed; and we paid the
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$100.00 licensing fee to Operate in 1994 and Defendant’s
agent, Ferraro signed off On our application.
81. The simple reality is that the last Official inspection
was December 11, 1991, and Defendant’s agent, Ferraro,
and written report on December 16, 1993, and Defendant’s
agent, Ferraro, never did so. On February 4, 1994,
check for $100.00.
82. Between January 11, 1994 and may 17, 1994.
Defendant’s agent, Ferraro, never set foot inside the store,
and never made the Official inspection Or report thereof, that
he was ordered to make by Mayor Goldsmith on December
reenact iis
Agriculture, and was aia notified that it ever failed an
inspection. See, last official from Pennsylvania Department
of Agriculture February 4, 1993, approving our operation
while we were operating as a deli-convenience store which is
attached as Exhibit L to Loretta Dennis Affidavit in Federal
Action.
84. On May 17, 1994, at about 4:55 P.M., without
any hearing, and without any official inspection report, the
Defendant’s agent, Ferraro, put a placard on our door closing
us down immediately.
85. I attended a hearing on June 30, 1994, along with
my husband and daughter, and six neighbors who wanted to
testify about the conditions of the store.
86. The Board of Health refused to listen to the
testimony of the six witnesses who voluntarily appeared to
testify about the condition of the store, with one member
dissenting, namely, Robert Silberman, M.D. How could the
Board of Health closed 2, store without a hearing? The
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hearing was held 44 days later, and scheduled for 7:30 P.M.
The Board then kept us waiting for two hours before the
hearing actually began. Our six witnesses waited patiently.
- Then, after Ed Ferraro’s testimony, when Our witnesses
wanted to testify, the Board tuled 3-1 that our witnesses
could not be heard.
87. Doris Asteak participated in the formal decision to
close the Store, and specifically indicated that the building
was shaded by trees and shrubbery rowing outside, and she
did not think a grocery store should have trees outside the
building. That was her only objection, namely, the trees
growing outside the store.
88. The Board of Health is a five person board. One,
Robert Silberman, M.D., voted against the motion to Shut us
down. The Other, M. James Dervin, Chair of the Board was
absent because of illness. The vote was 3-]
89. We were never given notice of the repairs, and the
Easton Board of Health even refused to hear Our witnesses.
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90. The plain simple truth is that the Defendant’s
agent, Ferraro, was not in the store between January 12,
1994, and May 16, 1994. The last time he inspected the store
was on December 11, 1991.
91. After the closure, numerous former customers
have approached me and told me that they wanted to testify
to help me. Because of these numerous inquiries, I
distributed an affidavit form to them so they could tell the
court exactly the condition of the store. I generated 91
affidavits by customers, and their very favorable comments
are in stark contrast to the false claims by Edward Ferraro.
The 91 customer affidavits were filed in the Federal Action.
92. By way of illustration only, I would direct the
Court’s attention to the affidavit of Dr. John Marone, a
Professor of Anthropology at Lafayette College, who
volunteered the following observations:
“Overall—very clean. Many times I saw
employees cleaning the facility (which was far cleaner than
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SECTIONS.
Wonderful basics that I used almost daily.
Fine quality. | miss it! Were it not clean & fresh, I wouldn’t
beverages were always fresh. The employees were clean and
cherished. Note: I was shocked and baffled when the store
was Closed.”
93. The customer affidavits really do tell the plain
simple truth, namely, the store was always clear and well
stocked, the aisles free and uncluttered, the items that need
refrigeration were refrigerated properly, and the shelves were
repainted and walls wallpapered. Not a single person ever
made a claim that a purchase from the store ever made them
ill. Numerous prominent personalities in the Easton area
shopped in the store, including Senator Jeanette Reibman.,
State Representative Robert Freeman, Ms. Joann Goldsmith,
wife of Mayor Thomas Goldsmith, Professor John Marone of
Lafayette College, Rabbi Mark Schrager, Dr. Robert
Silberman, a member of the Board of Health who voted
against the closure, Professor Charles Staples of Lafayette
College, Dr. Robert Moll of Easton Area High School, Dr.
Peter Cooper, an obstetrician, Attorney Frank Poswistilo,
Attorney Jerry Brose, Attorney Diane Elliot, Attorney
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President of Easton Hospital, Earl Wismer, a member of the
Board of Directors of Easton Hospital and too Many others
to O numerous to mention. Obviously, you Cannot gross a
million dollars a year in a working class neighborhood unless
there is substantial community support.
94. There was no basis for closing down the store.
95. Thad far more than 91 customers who signed
affidavits. If; however, only the 9] customers who signed
affidavits Stayed as regular customers of our “Mom & Pop”
Operation, I could have Operated the store Successfully.
SUING BECAUSE WE LOST THE STORE
96. The Defendants take the position that, because we
lost the store, our case should be dismissed.
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97. My perspective is just the opposite, namely,
because we lost the store—because we were never given a
hearing on the merits before a court tencgeepene—Aieiene
the Defendants waited until March 3, 1999, to give us a
hearing ordered by Judge Freedberg on May 15, 1997—we
ought to be compensated for our loss.
98. We lost everything because Edward Ferraro came
in May 17, 1994, and slapped a “Closed By Order Of Health
Board” sign on our store, and no court has ever ruled on the
merits of that closure.
99. We should be able to sue because we lost our
store, our home, and our livelihood, and no court has ever
found it was done properly. From my perspective, our
property was taken away from us without due process of law.
Penelope M. Dennis
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.