Opposition Brief — Angino v. Van Wagner

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Supreme Court, U.S

FILED |

No. 02-1812

In The

Supreme Court of the Gnites

RICHARD C. ANGINO; ALICE K. ANGINO;

and KING DRIVE CORP.,

Petitioners,

J. THOMAS VAN WAGNER; JEFFERY SMITH;

RICHARD PEFFER, Individually and as Supervisors of

Middle Paxton Township MIDDLE PAXTON TOWNSHIP;

JEFFREY A. ERNICO and METTE, EVANS & WOODSIDE,

P.C.; MARY JANE DAVIS, Individually and as Middle

Paxton Township Codes Enforcement Officer; and

LIGHT-HEIGEL & ASSOCIATES, INC.,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JEFFREY P. LEWIS, Esquire KATHRYN L. SIMPSON,

MCKIssock & HOFFMAN, P.C. Esquire

105 East Evans Street METTE, EVANS & WOODSIDE, P.C.

PO Box 3086 3401 North Front Street

West Chester, PA 19381 Harrisburg, PA 17110

(610) 738-8850 (717) 231-5221

Counsel of Record for Attorney for Respondents

Respondents, Jeffrey A. Jeffrey A. Ernico and

Ernico and Mette, Evans Mette, Evans & Woodside, P.-C.

& Woodside, FC. C. KENT PRICE, Esquire

CHRISTOPHER S. UNDERHILL, THOMAS, THOMAS & HAFER, LLP

Esquire 305 North Front Street

HARTMAN, UNDERHILL & PO Box 999

BRUBAKER, LLP Harrisburg, PA 17108-0909

221 East Chestnut Street (717) 237-7100

Lancaster, PA 17602-2782 Attorney for Respondents,

(717) 299-7254 Van Wagner, Smith, Peffer and

Attorney for Respondent, Middle Paxton Township

Light-Heigel & Associates, Inc.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Whether the Appellate Court erred in affirming the

Trial Court’s alleged error in granting summary judgment

based upon the ripeness doctrine as to Petitioners’ entire

civil rights action?

Whether the ripeness doctrine applies where a land-

owner alleges that a municipal body has passed an uncon-

stitutional ordinance and has refused to amend it without

the landowner presenting a formal administrative chal-

lenge under state law to the validity of the ordinance

before the highest municipal decision making body?

Whether this Court should recognize futility as an

exception to the ripeness doctrine?

CORPORATE DISCLOSURE STATEMENT

Respondent, Mette, Evans & Woodside, P.C., has no

parent corporation nor does a publicly held company own

any of the corporation’s stock.

Respondent, Light-Heigel & Associates, Inc., has a

parent corporation, AMPG, 430 East Main Street, Pal-

myra, Pennsylvania. No publicly held company owns more

than 10 percent of the party’s stock.

ili

LIST OF PARTIES TO THE PROCEEDING

IN THE COURT BELOW

The named Petitioners and Respondents are identified

in the Petition for Writ of Certiorari.

TABLE OF CONTENTS

Page

Questions Presented for Review ...............cccccseceeeeeees i

Corporate Disclosure Statement.................cceseceeeeeees ii

List of Parties to the Proceeding in the Court Below.... iii

I iiss seksi ctincsncecvencebecennsinanianidamiain iv

Ee OE IO Fasc enestceccinnceicensienenecnenevssneterneentin v

SIE GEE CIN SID enicvccentenncnesvssesnennsivnsieusntinsaasans 1

Reasons for EE GED Wee is cscscesavccnsessossccecnsssccsess 5

I. The Circuit Court properly affirmed the

grant of summary judgment, without preju-

dice, because Petitioners failed to avail

themselves of state procedures for challeng-

ing Respondents’ alleged actions and, thus,

their claims were not ripe for adjudication.... 6

II. Petitioners were properly directed to partici-

pate in an administrative procedure to reach

a final determination as to how the govern-

ing authority will apply its land use ordi-

nance to Petitioners’ real estate in order to

satisfy the “ripeness” requirenient................. 9

III. “Futility” does not apply as an exception to

the ripeness doctrine in the instant case be-

cause the record does not support that excep-

SUI sdk nsequebaniesanigugadbanuncaeeielbasunauntanebaiccaniaebnliiiaiaas 17

8 RAEN et NR ET RRC RT NNT a mS IT TT a 20

TABLE OF AUTHORITIES

CASES:

Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993)........ 10,

Del Monte Dunes at Monterey, Ltd. v. City of

Monterey, 920 F.2d 1496 (9th Cir. 1990), aff’d on

other grounds, 526 U.S. 687, 119 S.Ct. 1624, 143

Fp a EE CII scpsnsicncsistsrqienscesiiainibasinebaubaniasiies i

Felmeister v. Office of Attorney Ethics, 856 F.2d

RD Ce Ce FI ichiiiesciseticsinteresssccsciiaientiaecinons

Hoehne v. County of San Benito, 870 F.2d 529 (9th

AUN: ID vcckinciissuniciepisinchineiabsiesnieieunacdeniiaaainadinamnnien

Nev’ Hanover Township v. United States Corps of

Army Engineers, 992 F.2d 470 (3d Cir. 1993)..........

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43

SO. TG, GE hs. Bee CD Giecnvetiinavicccccsvasvereeecs

Reno v. Catholic Social Services, Inc., 509 U.S. 43,

113 S.Ct. 2485, 125 L.Ed.2d 38 (1998).................00

Sameric Corporation of Delaware v. City of Phila-

delphia, 142 F.3d 582 (3d Cir. 1998).................. 10,

Sommer & Frates v. Yolo County, 477 U.S. 340, 106

S.Ct. 2561, 91 L.Ed.2d 285, reh’g denied, 478

U.S. 1035, 107 S.Ct. 22, 92 L.Ed.2d 773 (1986) ......

Taylor Investment, Ltd. v. Upper Darby Township,

983 F.2d 1285 (3d Cir. 1993)...................cssssesees 10,

United States v. Lightcap, 567 F.2d 1226 (3d Cir.

Warner Cable Com. v. Borough of Schuylkill Haven,

784 F. Supp. 203 (E.D. Pa. 1992) ............cccccceesessees

Page

15, 16

19, 20

16, 17

baitint 15

14, 15

TABLE OF AUTHORITIES — Continued

Page

Williams Controls, Inc. v. Parente Randolph,

Orlando, Carey & Associates, 39 F. Supp.2d 517

CTU BEND scictinssisndisavenasstinicimiaisetananuisidicbieneiathcouies 3

Williamson Planning Comm. v. Hamilton Bank, 473

U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ..... passim

CONSTITUTION

Ra IE BIE: FH skiiseasictninisissvarcenistibtscuantnenioiana 7

0) Ee CUE. RIE, TAG scvcsnsccsvsensstanececactereieapainendsnperianain 7

RULES

Rules of the United States Supreme Court 10................... 5

OE TRUE. WP sissnessieniasénsistessiniiatiaasindbidassinteatibddanaliiiapiaian 3

Local Rules for the United States District Court for

the Middle District of Pennsylvania 56.1................... 2,3

STATUTES:

GD RGA. 3 cs ncssivstiinsitinsinniditibianiacdalatcateatprtaisiiniaaiian,

Municipalities Planning Code § 101 et seq., 53 PS.

Municipalities Planning Code, §916.1, 53 PS.

Municipalities Planning Code, § 909.1(a5), 53 PS.

F RE ND vsticssssteistsisntectepniannmeaaaania 9

Vii

TABLE OF AUTHORITIES - Continued

Page

APPENDIX:

Answer of Light-Heigel & Associates, Inc. to Second

ee ED ctntiacitnteticninttinsittiminnvinnbitistennitin App. 1b

Answer and Affirmative Defenses of Defendants J.

Thomas Van Wagner, Jeffery Smith, Richard

Peffer, Individually and as Supervisors of Middle

Paxton Township, Middle Paxton Township and

Mary Jane Davis, Individually and as Middle

Paxton Township Codes Enforcement Officer, to

Plaintiffs’ Second Amended Complaint ................ App. 7b

Brief in Support of Joint Motion of Defendants Van

Wagner, Smith, Peffer, Middle Paxton Township,

Ernico, Mette, Evans & Woodside, P.C. and Davis

to Dismiss Amended Complaint and/or for a More

Ee ND scirarsiensetisenastinatlinchdnineineciesenmnesnnes App. 24b

STATEMENT OF THE CASE

This petition arises from a suit asserted by landown-

ers under 42 U.S.C. § 1983 against a political sub-division,

its governing body, solicitor, and engineer, commencéd in

the United States District Court for the Middle District of

Pennsylvania. Petitioners challenged the enactment and

interpretation of various ordinances and the manner in

which each Respondent has treated their land use applica-

tions. Pet., App. at 7a.

Although the second amended complairit raises due

process and equal protection claims, for purposes of this

petition, detailing these factual allegations serves no

purpose. Instead, in summary, that complaint alleges that

commencing in 1988 the Middle Paxton Township Board of

Supervisors enacted and later interpreted certain land use

ordinances which had the effect of precluding Petitioners

from selling lots and/or developing their resort (known as

Felicita). Pet., App. at 67a-68a. Further, Petitioners allege

that all Respondents pursued the goal of an “antidevelop-

ment ‘legally defensible’ comprehensive plan.” Pet., App. at

71a. To reach this goal, in Petitioners’ view, the Respon-

dents all participated in:

e Enactment of a steep slopes ordinance to reduce

the number of lots that can be developed (Pet.,

App. at 69a);

e Enactment of other changes in the zoning ordi-

nance to limit development (Pet., App. at 69a);

¢ Enactment of standards in the land use ordinance

to limit length of cul-de-sacs, road grades and ra-

dii (Pet., App. at 74a);

¢ Misinterpretation and selective enforcement of or-

dinances (Pet., App. at 74a); and

¢ Deprivation of the highest and best use of Peti-

tioners’ land (Pet., App. at 72a).

On March 16, 1998, the parties to this action, except-

ing Respondent Light-Heigel which was not a party there,

settled a previous action brought by the Petitioners. Pet.,

App. at 47a. That settlement resolved, among other

things, previous claims brought by the Petitioners under

similar theories against most of these same Respondents

in the same District Court. Pet., App. at 47a. That written

settlement agreement includes a general release and

resulted in that action being dismissed with prejudice.

Pet., App. at 47a-48a.

Petitioners filed the present action in January 2000.

On April 4, 2002, the District Court, per A. Richard

Caputo, United States District Judge, granted summary

judgment in favor of all Respondents without prejudice.

Pet., App. at 14a. On December 17, 2002, a three judge

panel of the United States Court of Appeals for the Third

Circuit affirmed, finding that “the District Court engaged

in a thoughtful analysis.” Pet., App. at 2a. On March 13,

2003, that Court denied Petitioners’ petition for rehearing

with suggestion for rehearing in banc. Pet., App. at 6a.

This petition makes abundant references to a docu-

ment styled “Plaintiffs’ Summary of Undisputed Facts”

submitted to the District Court. Petitioners state, “The

following facts are undisputed.” Pet., at 4. The statement

is untrue and misleading to this Court. Petitioners’ sum-

mary of undisputed facts before the District Court was not

in compliance with Rule 56.1 of the Local Rules Of The

United States District Court For The Middle District Of

Pennsylvania, which provides as follows:

A motion for summary judgment filed pursuant

to Fed.R.Civ.P. 56, shall be accompanied by a

separate, short and concise statement of the ma-

terial facts, in numbered paragraphs, as to which

the moving party contends there is no genuine

issue to be tried. The papers opposing a motion

for summary judgment shall include a separate,

short and concise statement of the material facts,

responding to the numbered paragraphs set forth

in the statement required in the foregoing para-

graph, as to which it is contended that there ex-

ists a genuine issue to be tried. Statements of

material facts in support of, or in opposition to, a

motion shall include references to the parts of

the record that support the statements. All mate-

rial facts set forth in the statement required to

be served by the moving party will be deemed to

be admitted unless controverted by the state-

ment required to be served by the opposing party.

Id. (emphasis added).

In responding to the motion for summary judgment,

Petitioners were required to respond to the statement of

material facts filed by the Respondents. They did not do

so. Instead, they filed their own statement. Although that

statement was in numbered paragraphs, they were not

responsive to the statements of undisputed fects submit-

ted by any of the Respondents. Therefore, the Respon-

dents’ statements were deemed admitted while Petitioner’s

were not. See Williams Controls, Inc. v. Parente Randolph,

Orlando, Carey & Associates, 39 F.Supp.2d 517, 519

(M.D.Pa. 1999) (failure to file a separate, concise state-

ment of facts responding to the numbered paragraphs set

forth in moving party’s statement of facts will be deemed

admitted under Local Rule 56.1). Moreover, as an appar-

ent consequence, both the District Court and the Court of

Appeals appear to have ignored Petitioners’ so-called

“Statement of Undisputed Facts.”

Respondents submit that the facts relevant to this

case are simply stated. Petitioners own approximately 700

acres in Middle Paxton Township, Dauphin County, Pennsyl-

vania. Pet., App. at 47a. On that property are located a

restaurant, an inn, an 18-hole golf course, an adjacent golf

community, a lodge, and a spa. Pet., App. at 47a.

Over the years Petitioners have tried to develop their

property by adding single-family residences and by ex-

panding their resort. Pet., App. at 48a. Subsequent to the

settlement on March 16, 1998, however, and until shortly

before the District Court granted summary judgment,

Petitioners never pursued any remedy available to them

under Pennsylvania’s Municipalities Planning Code, 53

PS. § 10101 et seq., to challenge the validity of any ordi-

nance, which they contend in their second amended com-

plaint unduly and illegally restricts their land development.

Pet., App. at 87a. They have never asked for variances from

the applicable provisions of the zoning ordinance or pursued

a validity challenge. Pet., App. at 87a-88a.

For example, Petitioners have complained at great

length about the “steep slope” provisions of the zoning

ordinance. Pet., App. at 69a. Not until shortly before the

District Court granted summary judgment did Petitioners

commence a validity challenge before the Respondent

Board of Supervisors seeking a curative amendment from

the “steep slope” provisions. Pet., App. at 105a-106a. The

District Court granted summary judgment without preju-

dice, which provided the Petitioners the opportunity to

proceed with the curative amendment process.

REASONS FOR DENYING THE WRIT

Petitioners raise three issues: 1) whether the Appel-

late Court erred in affirming the Trial Court’s alleged

error in granting summary judgment based upon the

ripeness doctrine as to Petitioners’ entire civil rights

action; 2) whether the ripeness doctrine applies where a

landowner alleges that a municipal body has passed an

unconstitutional ordinance and has refused to amend it

without the landowner presenting a formal administrative

challenge under state law to the validity of the ordinance

before the highest municipal decision making body; and 3)

whether this Court should recognize futility as an excep-

tion to the ripeness doctrine. None of these issues satisfies

the criteria under Rule 10 of this Court: with respect to

considerations governing review on certiorari. The Peti-

tioners present no compelling reason for a grant of certio-

rari. They present no decision in conflict with the decision

of any other Court on the same important matter nor does

this decision depart “from the accepted and usual course of

judicial proceedings.” Jd. Their first issue constitutes an

alleged error of law. The second constitutes an attempt to

revisit what is settled law in this Court. See, e.g., William-

son Planning Comm. v. Hamilton Bank, 473 U.S. 172, 105

S.Ct. 3108, 87 L.Ed.2d 126 (1985). The third involves

whether the law in the Ninth Circuit should become the

law of this Court in an instance where the District Court

has determine that the law in question does not apply

factually.

I. The Circuit Court properly affirmed the

grant of summary judgment, without preju-

dice, because Petitioners failed to avail them-

selves of state procedures for challenging

Respondents’ alleged actions and, thus, their

claims were not ripe for adjudication.

Petitioners have articulated the initial question for

review as being whether the Circuit Court erred in affirm-

ing the Trial Court’s alleged error in granting summary

judgment as to Petitioners’ entire action based upon

“ripeness” where that defense was first raised as an

affirmative defense to Petitioners’ second amended com-

plaint and only as to additional civil rights violations

resulting from the Township’s adoption of its 2000 Zoning

Ordinance. Pet., at i. While it is true that the Respondents

did not raise ripeness (also referred to as the “doctrine of

finality,” Williamson Planning Commission v. Hamilton

Bank, supra) as an affirmative defense in response to both

the original and first amended complaints, it is undisputed

that the Respondents did specifically plead ripeness in

their respective responses to the second amended com-

plaint. Respondent Light-Heigel’s affirmative defenses to

the second amended complaint stated, “Plaintiffs’ claims

are not ripe for disposition in this Court” (emphasis

added). App. at 6b, paragraph 17, infra. Likewise, para-

graph 14 of the affirmative defenses of the Respondent

Middle Paxton Township parties to the second amended

complaint stated, “Plaintiffs’ claims are not ripe for hear-

ing or disposition before this tribunal” (emphasis added).

App. at 21b. While paragraph 19 of the affirmative de-

fenses of the Respondent Ernico parties to the second

amended complaint stated, “Plaintiffs’ alleged claims are

not ripe for hearing before this tribunal” (emphasis added).

Pet., App. at 82a.

Contrary to Petitioners’ assertion, all of the Respon-

dents did plead the defense of ripeness as to all claims set

forth in the second amended complaint and not “only as to

additional civil rights violations resulting from the Town-

ship’s highest body’s adoption of its 2000 Zoning Ordi-

nance.” Petitioners’ statement of the questions presented

for review, Pet., at i. Consequently, the Respondents did

not limit or restrict the defense of ripeness to the 2000

Zoning Ordinance but, rather, properly raised that defense

as to all claims contained in the second amended com-

plaint.

Petitioners represent that the “District Court rejected

Defendants’ ‘ripeness’ claim as to pre-November 2000

claims (117a-118a).” Pet., at 23. This is a misrepresenta-

tion of the record. On April 26, 2000, Respondents filed a

joint motion to dismiss amended complaint and for a more

definite statement. Pet., App. at 55a. In their supporting

brief (App. at 24b-38b), filed May 8, 2000, Respondents

argued that the amended complaint should be dismissed

because, inter alia, Petitioners had failed to state claims

under the Fifth and Fourteenth Amendments where there

were adequate remedies under state law, the sole remedy

being pursuant to 42 U.S.C.A. § 1983. The issue as raised

and briefed by Respondents centered on a theory of failure

to exhaust state remedies rather than ripeness, which

theories are wholly distinct and separate. In that regard,

the Williamson Court noted:

While the policies underlying the two concepts

overlap, the finality requirement is concerned

with whether the initial decision maker has ar-

rived at a definitive position on the issue that in-

flicts actual, concrete injury; the exhaustion

requirement generally refers to administrative

and judicial procedures by which an injured

party may seek review of an adverse decision and

obtain a remedy if the decision is found to be

unlawful or otherwise inappropriate.

Williamson, supra, 473 U.S. at 193, 105 S.Ct. at 3120, 87

L.Ed.2d at 143. The Respondents did not raise ripeness in

their motion to dismiss and the District Court did not

address the issue of ripeness in denying the motion. The

Respondents only raised ripeness as an affirmative de-

fense in response to the second amended complaint.

Therefore, the District Court was not asked to address nor

did it address the issue of ripeness until presented with

Respondents’ motions for summary judgment following the

filing of the second amended complaint.

Petitioners’ attempt to raise some type of waiver

argument ignores the essential nature of the doctrine of

ripeness or finality. Ripeness is a product of the concept of

justiciability and concerns whether the legal issue at the

time presented is sufficiently concrete for decision. United

States v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977). This

Court has noted “that ripeness doctrine is drawn both

from Article III limitations on judicial power and from

prudential reasons for refusing to exercise jurisdiction.”

Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, 113

S.Ct. 2485, 125 L.Ed.2d 38, n.18 (1993). A District Court

may decide the ripeness issue upon motion without sub-

mitting it to a jury for factual findings. Warner Cable Com.

v. Borough of Schuylkill Haven, 784 F. Supp. 203, 205-206

(E.D. Pa. 1992). In fact, it has been recognized that con-

siderations of ripeness are sufficiently important that

Courts must raise the issue sua sponte even if the parties

do not. Felmeister v. Office of Attorney Ethics, 856 F.2d

529, 535 (3d Cir. 1988).

II. Petitioners were properly directed to par-

ticipate in an administrative procedure to

reach a final determination as to how the

governing authority will apply its land use

ordinance to Petitioners’ real estate in order

to satisfy the “ripeness” requirement.

Petitioners’ claims in their complaint and amended

complaints are essentially due process claims, that is, that

the ordinances of Middle Paxton Township “go too far.”

Williamson, supra, 473 U.S. at 200, 105 S.Ct. at 3123, 87

L.Ed.2d at 147, citing Pennsylvania Coal Co. v. Mahon,

260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Thus,

Petitioners are attacking the validity of those ordinances.

In Pennsylvania the ultimate decision-makers at the

administrative level on validity are: (a) the zoning hearing

board or (b) the township supervisors in a curative

amendment proceeding. Pennsylvania Municipalities

Planning Code, § 916.1, 53 PS. § 10916.1. Pet., App. at

10a. As noted by the District Court, Petitioners did not

submit their claims to either body before starting suit. Id.

In addition, under Pennsylvania law variances are

granted by the political subdivision’s zoning hearing

board. Pennsylvania Municipalities Planning Code,

§ 909.1(aX5), 53 PS. § 10909.1(a)\(5). Petitioners have

never sought variances either. Pet., App. at 87a-88a.

As Petitioners admit, however, they eventually did

challenge the validity of the ordinance by filing a curative

amendment proceeding before the board of supervisors on

February 27, 2002. Pet., at 23. That matter is still pend-

ing. In other words, Petitioners finally realized that they

should follow Pennsylvania law with regard to obtaining a

decision by the highest decision making body in the

municipality.

Despite this, Petitioners continue their challenge of

the dismissal of their action, stating:

“Prior to this case the Third Circuit limited the

‘ripeness’ doctrine to administrative decisions of

low level officials and not to ordinances adopted

by the highest legislative bodies after legislative

drafts, final drafts, meetings, and hearings.”

Pet., at 23. Petitioners rely on four cases to support this

argument: New Hanover Township v. United States Corps

of Army Engineers, 992 F.2d 470 (3d Cir. 1993); Taylor

Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285

(3d Cir. 1993); Acierno v. Mitchell, 6 F.3d 970 (3d Cir.

1993); and Sameric Corporation of Delaware v. City of

Philadelphia, 142 F.3d 582 (3d Cir. 1998). Pet., at 23-24,

29. None of these cases support Petitioners’ position.

The seminal case on ripeness is Williamson County

Regional Planning Commission v. Hamilton Bank of

Johnson, supra. There this Court considered whether,

“petitioners’ application of various zoning laws and regula-

tions to respondents’ property amounted to a ‘taking’ of

that property.” 473 U.S. at 175, 105 S.Ct. at 3111, 87

L.Ed.2d at 132. In Williamson:

Respondent has submitted a plan for developing

its property.... But ... respondent did not then

seek variances that would have allowed it to de-

velop the property according to its proposed plat,

notwithstanding the Commission’s finding that

the plat did not comply with the zoning ordi-

nance and subdivision regulations. It appears

that variances could have been granted to resolve

at least five of the commission’s eight objections.

to the plat. The Board of Zoning Appeals had the

power to grant certain variances from the zoning

ordinance, including the ordinance’s density re-

quirements and its restriction on placing units on

land with slopes having a grade in excess of 25%.

[citations omitted]. The Commission had the power

to grant variances from the subdivision regulations,

including the cul-de-sac, road-grade, and frontage

requirements. Indeed, the Temple Hills Committee

had recommended that the Commission grant vari-

ances from those regulations. [citation omitted].

Nevertheless, respondent did not seek variances

from either the Board or Commission.

473 U.S. at 187-188, 105 S.Ct. af 3117, 87 L.Ed.2d at 139-

140. Based on these facts, this Court found that the case

was not ripe because:

[A]s the court has made clear in several recent de-

cisions, a claim that the application of government

regulations effects a taking of a property interest is

not ripe until the government entity charged with

implementing the regulations has reached a final

decision regarding the application of the regula-

tions to the property at issue.

473 U.S. at 186, 105 S.Ct. at 3116, 87 L.Ed.2d at 139 (em-

phasis added). As Petitioners concede, ripeness is not the

same as exhausting administrative remedies. Pet., at 26-27.

As this Court noted:

Resort to those procedures would result in a

judgment whether the commission’s actions vio-

lated any of respondent’s rights. In contrast, re-

sort to the procedure for obtaining variances

would result in a conclusive determination by the

Commission whether it would allow respondent

to develop the subdivision in the manner respon-

dent proposed. The Commission’s refusal to ap-

prove the preliminary plat does not determine that

issue; it prevents respondent from developing its

subdivision without obtaining the necessary

variances, but leaves open the possibility that re-

spondent may develop the subdivision according

to its plat after obtaining the variances. In short,

the Commission’s denial of approval does not

conclusively determine whether respondent will

be denied all reasonable beneficial use of its

property, and therefore is not a final, reviewable

decision.

473 U.S. at 193, 105 S.Ct. at 3120, 87 L.Ed.2d at 143.

Though Williamson is primarily a takings case, it also

analyzed the issues under a due process theory. This Court

concluded:

We need not pass upon the merits of petitioners’

arguments, for even if viewed as a question of

due process, respondent’s claim is premature.

Viewing a regulation that “goes too far” as an in-

valid exercise of the police power, rather than as

a “taking” for which just compensation must be

paid, does not resolve the difficult problem of

how to define “too far,” that is, how to distinguish

the point at which regulation becomes so onerous

that it has the same effect as an appropriation of

the property through eminent domain or physical

possession. As we have noted, resolution of that

question depends, in significant part, upon an

analysis of the effect the Commission’s applica-

tion of the zoning ordinance and subdivision

regulations had on the value of respondent’s

property and investment-backed profit expecta-

tions. That effect cannot be measured until a final

decision is made as to how the regulations will be

applied to respondent’s property. No such decision

had been made at the time respondent filed its

§ 1983 action, because respondent failed to apply

sada cieacaata aaah iiiiinaaasiaiiiiaad

for variances from the regulations. (emphasis

added)

473 U.S. at 200, 105 S.Ct. at 3123, 87 L.Ed.2d at 148.

The District Courts and the Courts of Appeals have

consistently followed Williamson, including the cases cited

by Petitioners. Petitioners allege, “the Third Circuit panel

decision in this case is in conflict with the prior decisions

of the Third Circuit [citations omitted] as to what types of

decisions are final and ‘ripe.’” Pet., at 29. The first case

cited is New Hanover Township, supra. There, the Corps of

Army Engineers had granted a permit for a municipal

waste landfill pursuant to a nationwide permit. The Court

held that the case was not ripe and vacated the District

Court’s order granting the Corps’ summary judgment

motion. 992 F.2d at 472.

Ripeness was an issue because the landfill required a

water quality certificate from the Pennsylvania Depart-

ment of Environmental Resources (PADER). The Third

Circuit concluded:

A pragmatic view of the facts mandates a deci-

sion that this case is not ripe for review. First

and foremost, the Corps’ decision has no immedi-

ate impact on the Township. NHC may not pro-

ceed with its landfill project until it obtains a

section 401 water quality certificate from the

PADER. Thus, no one will experience any impact

stemming from the Corps’ decision until and

unless PADER issues a water quality certificate.

992 F.2d at 472-473.

In short, because no decision had been made by the

highest decision making body, the case was not ripe for

adjudication. Contrary to Petitioners’ assertion, the case

clearly does not stand for the proposition that the decision

of a lower lev¢l official makes a case sufficiently ripe for

federal consideration.

In Taylor, supra, plaintiff’s tenant had obtained a use

permit to operate a sports fitness center. Certain work on the

building had to be performed. The tenant opened for busi-

ness before the work was completed. The business was shut

down and the permit revoked because the tenant had fur-

nished false and misleading information on his application.

983 F.2d at 1285. Plaintiff sued and, on appeal, the Circuit

Court articulated the process plaintiff should have followed:

Plaintiffs did not reapply for a use permit, appeal

the revocation to the Township Zoning Board, or

seek a variance or special exception to the Town-

ship’s zoning ordinances. Each of these options

was available to plaintiffs under the Township’s

zoning ordinance and Pennsylvania’s Mv acipal

Planning Code. The zoning hearing boar’. has ex-

clusive jurisdiction to render a “final adjudica-

tion” regarding any decision of the zoning officer,

such as revocation of a use permit. Pa.Stat.Ann.

tit. 53, § 10909.1(aX3). The zoning hearing board

also has exclusive jurisdiction to grant variances

and special exceptions to the zoning ordinance.

Ordinance § 1600; see also Pa.Stat.Ann. tit. 53,

§§ 10910.2 & 10912.1. The zoning hearing board

would have been required to hold a hearing on

plaintiffs’ appeal or request for a variance or spe-

cial exception within sixty days of filing and to

render a decision within forty-five days of the

hearing. Pa.Stat.Ann. tit. 53, § 10908(1.2). Fail-

ure to take action on plaintiffs’ request for relief

would have resulted in deemed approval of the

request. Pa.Stat.Ann. tit. 53, § 10908(9).

983 F.2d at 1285.

After a careful analysis of the facts, including a

discussion of Williamson, the Third Circuit disposed of

plaintiff’s due process claim holding:

In Williamson and MacDonald, [Sommer &

Frates v. Yolo County, 477 U.S. 340, 106 S.Ct.

2561, 91 L.Ed.2d 285, reh’g denied, 478 US.

1035, 107 S.Ct. 22, 92 L.Ed.2d 773 (1986)], how-

ever, the Supreme Court did not ignore the fact

that certain land-use decisions may cause injury.

Rather, in the face of potential constitutional in-

juries, the Court held that the local authority

should be given the opportunity to fully and fi-

nally determine the scope of the injury before

federal claims ripen ... although plaintiffs miay,

at some point, have a mature and colorable claim

because of the township’s actions — assuming

they had a property interest in the permit at all

— Williamson and MacDonald require that plain-

tiffs allow local authorities to act with finality

under the zoning ordinance before pursuing a

due process claim.

983 F.2d at 1294.

The Third Circuit also disposed of the plaintiff’s equal

protection claim by stating:

Like a takings claim, the injury — dissimilar and

irrational treatment — ripens only after the zon-

ing hearing ooard takes final and definitive ac-

tion through its variance or review procedures.

Because plaintiffs resorted to neither, their equal

protection claim is not ripe for judicial review.

983 F.2d at 1295.

Petitioners’ third case, Acierno, supra, is a case

decided under Delaware, not Pennsylvania, law. There, the

applicant twice submitted plans to the County Develop-

ment and Licensing Division. They were denied. Neither

was appealed. The applicant then filed suit in the US.

District Court. The defendants appealed the denial of their

motion for summary judgment and the granting of plain-

tiffs’ motion for injunction to the Third Circuit. The issue

was whether a final decision had been made.

Contrary to Petitioners’ position, Acierno does not

stand for the proposition that a cause of action is ripe upon

a decision by a lower level official. Rather, the Court held:

We agree the County has made a final decision

with respect to plaintiffs’ development plans. Plain-

tiff submitted three plans depicting commercial

development on the M-1 portion of the property.

The Department of Planning and the County

Council accepted those plans, which are final deci-

sions under state law and the county zoning ordi-

nance.

6 F.3d at 975.

Obviously, in Acierno the decision was made at county

level, not by some lower level functionary.

Petitioners’ final case, Sameric, supra, is quoted at

length in the Petition. Pet., at 24-25. The quoted material

cited by Petitioners does not support their position. That

quotation refers to a “Final determination regarding how

to construe the applicable ordinances and apply them to a

particular property.” Pet., at 25. 142 F.3d at 597 (emphasis

added). The Sameric Court concluded, “that the Depart-

ment of Licenses denial was not the city’s final determina-

tion of Sameric’s rights to a demolition permit under the

ordinances.” 142 F.2d at 597 (emphasis added).

Clearly, the District Court was correct when it cited

Sameric and concluded that Petitioners’ claims were not ripe.

Pet., App. at 7a-1l4a. The Third Circuit was, therefore,

correct in affirming. It follows that this Court should deny

the Petition.

Ill. “Futility” does not apply as an exception to the

ripeness doctrine in the instant case because the

record does not support that exception.

The Third Circuit has not adopted the futility rule in

land use cases. Simply stated, that rule is that if the

record in a given case demonstrates the futility of pursu-

ing the matter to a final decision the issue may be ripe for

disposition. The two lead cases on this subject appear to be

from the Ninth Circuit, Hoehne v. County of San Benito,

870 F.2d 529 (9th Cir. 1989) and Del Monte Dunes at

Monterey, Ltd. v. City of Monterey, 920 F.2d 1496 (9th Cir.

1990), aff’d on other grounds, 526 U.S. 687, 119 S.Ct.

1624, 143 L.Ed.2d 882 (1999).

In Hoehne, the District Court had dismissed the

plaintiffs’ complaint as premature. The Ninth Circuit

reversed finding that the actions of the governmental body

in denying a subdivision application and then rezoning the

land to make it impossible for the owners to subdivide

constituted a sufficient final decision so as to make any

further applications to the governmental body futile.

In Del Monte Dunes, the applicant submitted four

variations of the same plan for approval. Each time they

were rejected. On three occasions the planning commission

made suggestions or the City suggested changes and when

plans were modified to meet these suggestions, they were

still rejected. The Del Monte Dunes Court stated the

requirements for meeting its futility exception to the

finality rule as follows:

The taking component of an as applied claim is

not ripe until the local government issues a final

decision on the application of land use regula- |

tions to the affected property. Id. The cases of |

this circuit and the Supreme Court have identi-

fied two areas of concern that illuminate and de-

fine the finality requirement. Finality first

requires the rejection of development formally

sought by the landowner. At a minimum, the

landowner must submit one formal development

plan and seek a variance from any regulations

barring the development proposed in the plan.

Finality also requires the local government to de-

termine authoritatively the type and intensity of

development that land use regulations will allow

on the subject property; such a determination

helps a court to evaluate whether regulation of

the subject property is excessive by identifying

the extent of the regulation. Thus, a landowner

may need to resubmit modified development pro-

posals that satisfy the local government’s objec-

tions to the development as initially proposed.

This circuit recognizes a limited futility exception

to the requirement that a landowner obtain a fi-

naj decision regarding the application of land use

regulations to the affected property. Under this

exception, the resubmission of a development

plan or the application for a variance from pro-

hibitive regulations may be excused if those ac-

tions would be idle or futile. The landowner bears

the burden of establishing, by more than mere al-

legations, the futility of pursuing any of the steps

needed to obtain a final decision. Moreover, be-

fore claiming the exception, the landowner must

submit at least one development proposal and

one application for a variance if meaningful

application and submission can be made.

920 F.2d at 1502 (citations omitted) (emphasis added).

Petitioners could not meet this test before the District

Court. They had not submitted any plan that has been

denied because of the provision of the township’s zoning

ordinance, let alone repeated plans. They had not asked

for a variance. As the lower Court concluded, “Even if this

, doctrine is recognized in this circuit, Plaintiffs have not

met the Del Monte requirements.” Pet., App. at 12a. In

short, even if this Court adopts the Hoehne and Del Monte

Dunes’ futility exception, it does not apply to the Petition-

ers here.

Evidently, Petitioners believe that they can meet the

futility standard by citing the letters written by them to the

Respondent Supervisors. The “Statement of Facts” in the

Petition lists and quotes extensively from five obviously self-

serving letters written by Petitioner Richard Angino in 2000

and 2001 accusing the Respondent Supervisors of enacting a

number of illegal ordinances. Pet., at 15-21. Petitioners also

quote a November 9, 2001 reply from the Respondent Solici-

tor, presumably to demonstrate that further efforts to file a

plan or seek variances, or more importantly, to challenge

validity, would be pointless. Pet., at 21.

As Del Monte Dunes states:

This circuit recognizes a limited futility exception

to the requirement that a landowner obtain a fi-

nal decision regarding the application of land use

regulations to the affected property.... Under

this exception, the resubmission of a development

plan or the application for a variance from pro-

hibitive regulations may be excused if those ac-

tions would be idle or futile.

920 F.2d at 1501 (emphasis added). Letters are not a

sufficient substitute for actually submitting a plan or a

request for a variance and having official action taken. As

Del Monte Dunes also states:

The landowner bears the burden of establishing,

by more than mere allegations, the futility of pur-

suing any of the steps needed to obtain a final

decision.

920 F.2d at 1501 (emphasis added).

In view of the foregoing, consideration of whether this

Court should adopt the “futility” exception to land use

cases would not alter the outcome to Petitioners’ claims.

CONCLUSION

The Petition should be denied for the reasons and

authority stated above.

Respectfully submitted,

JEFFREY P. LEWIS, Esquire

MckKIssock & HOFFMAN, P.C.

105 East Evans Street

P.O. Box 3086

West Chester, PA 19380

(610) 738-8850

Counsel of Record for Respondents,

Jeffrey A. Ernico and

Mette Evans & Woodside, PC.

CHRISTOPHER S. UNDERHILL,

Esquire

HARTMAN, UNDERHILL &

BRUBAKER, LLP

221 East Chestnut Street

Lancaster, PA 17602-2782

Attorney for Respondents,

Light, Heigel & Asscciates, Inc.

C. KENT PRICE, Esquire

THOMAS, THOMAS & HAFER, LI.P

305 North Front Street

Harrisburg, PA 17108

Attorney for Respondents

Van Wagner, Smith, Peffer and

Middle Paxton Township

KATHRYN L. SIMPSON, Esquire

METTE, EVANS & WOODSIDE, P.C.

3401 North Front Street

Harrisburg, PA 17110

(717) 231-5221

Attorney for Respondents

Jeffrey A. Ernico and Mette,

Evans Woodside, P.C.

HARTMAN UNDERHILL & BRUBAKER LLP

By: Christopher S. Underhill

Attorney I.D. No. 07013

221 East Chestnut Street

Lancaster, PA 17602

(717) 299-7254/FAX (717) 299-3160

Attorneys for Defendant:

Light-Heigel & Associates, Inc.

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD C. ANGINO, : CIVIL ACTION - LAW

ALICE K. ANGINO, and : ;

KING DRIVE CORP., * No. 1:CV 00-0086

Plaintiffs, : Judge Caputo

J. THOMAS VAN WAGNER, :

JEFFREY SMITH, RICHARD :

PEFFER, Individually and as :

Supervisors of Middle Paxton :

Township; MIDDLE PAXTON :

TOWNSHIP; JEFFREY A. :

ERNICO and METTE,

EVANS & WOODSIDE, P.C.;

MARY JANE DAVIS,

Individually and as Middle

Paxton Township Codes

Enforcement Officer; and

LIGHT-HEICEL &

ASSOCIATES, INC.,

Defendants.

ANSWER OF LIGHT-HEIGEL & ASSOCIATES,

INC. TO SECOND AMENDED COMPLAINT

1-13. Admitted on information and belief except that

Light-Heigel & Associates, Inc. (Light-Heigel) has no

knowledge of whether the action is brought against indi-

viduals in both personal and official capacities or whether

any person named in the Second Amended Complaint is

acting within the scope of his or her employment.

14. Admitted.

15. Admitted.

16-79. Denied. As Plaintiffs well know, Light-Heigel

_ was not involved in any of the following:

(a) The prior lawsuit.

(b) The preparation and enactment of the 1998

Comprehensive Plan.

Zoning Ordinance.

(d) The preparation and enactment of the Steep

Slope Ordinance adopted in 1988 and amended in 1991.

(e) Minimum lot size requirements.

(f) Cul-de-sac requirements.

(g) Road grade percentage.

By way of further answer, as to Paragraph 71,

Light-Heigel was not found guilty of bad faith by Judge

Turgeon in the Court of Common Pleas of Dauphin

County.

80. Denied that Light-Heigel has engaged in any

illegal, discriminatory, constitutionally violative practice

at any time.

(a)-G) These allegations are directed at other

Defendants and not at Light-Heigel.

COUNT I

81. Light-Heigel incorporates its answers to Para-

graphs 1 through 80 by reference.

82. Denied that any conduct on the part of Light-

Heigel has deprived Plaintiffs of any federally protected

rights, constitutional due process, equal protection or

other property rights granted by the Federal and State

Constitutions and their laws.

83. Denied that any conduct on the part of Light-

Heigel has deprived Plaintiffs of any federally protected

rights in either an individual or official capacity because

Light-Heigel is a private entity and was incapable of

acting under color of state law. Denied that any conduct on

the part of Light-Heigel has caused Plaintiffs any dam-

ages.

84. Denied that any conduct on the part of Light-

Heigel has deprived Plaintiffs of any of the additional

damages described in this paragraph.

85. Denied that any conduct on the part of Light-

Heigel has deprived Plaintiffs of any constitutionally

protected or any other rights and, therefore, denied that

any conduct on the part of Light-Heigel is outrageous,

intentional, or punitive or was taken with reckless indif-

ference to Plaintiffs’ rights.

86. Denied that any conduct on the part of Light-

Heigel has forced Plaintiffs to spend attorney time or incur

expense in this or any other action. .

WHEREFORE, Light-Heigel & Associates, Inc.

requests that as to it Plaintiffs’ Second Amended Com-

plaint be dismissed.

AFFIRMATIVE DEFENSES

1. Plaintiffs have failed to state a cause of action

upon which they may obtain relief.

2. All denials of approval of land development and

subdivision plans submitted by Plaintiffs with which

Light-Heigel has any connection resulted from Plaintiffs’

failure to comply with the applicable ordinances and other

’ laws governing zoning and development in Middle Paxton

Township.

3. Light-Heigel was not a party to the prior lawsuit

described in Paragraph 20 of the Second Amended Com-

plaint.

4. Light-Heigel was not a party to the Settlement

Agreement of the prior lawsuit described in Paragraphs 21

and 22 of the Second Amended Complaint.

5. Light-Heigel is not and cannot be in violation of

any of the provisions of the Settlement agreement de-

scribed in Paragraphs 21 and 22 of the Second Amended

Complaint.

6. As Township Engineer, Light-Heigel has no power

to approve or deny land development and subdivision

plans, to enact or not enact ordinances, or to impose any

policies on the Township and its Board of Supervisors.

ae ance ty tae

7. Light-Heigel is a private entity and, therefore,

cannot and has not acted under color of state law.

8. Light-Heigel did not participate in the preparation

and enactment of an amendment to the Middle Paxton

Township Zoning Ordinance in 1988 defining steep slopes

as described in Paragraph 33 of the Second Amended

Complaint.

9. Light-Heigel did not participate in the preparation

and enactment of an amendment to the Middle Paxton

Township Zoning Ordinance in 1991 with regard to defin-

ing steep slopes and requiring certain minimum lot areas

in connection therewith as alleged in Paragraph 34 of the

Second Amended Complaint.

10. Light-Heigel did not participate in the prepara-

tion and enactment of any amendments to the Middle

Paxton Township Zoning Ordinance with respect to

minimum lot area as described in Paragraph 35 of the

Second Amended Complaint.

11. Light-Heigel did not participate in the prepara-

tion and enactment of a Comprehensive Plan in 1998 by

Middle Paxton Township.

12. Light-Heigel did not participate in the prepara-

tion and enactment of a Zoning Ordinance in 2000 by

Middle Paxton Township.

13. Light-Heigel did not participate in the prepara-

tion and enactment of any amendments to the Middle

Paxton Township Zoning Ordinance with respect to

minimum road grade percentage.

14. Some or all of Plaintiffs’ claims are barred by the

applicable statute of limitations.

15. Some or all of Plaintiffs’ claims are barred by the

provisions of the Settlement Agreement of the prior

lawsuit.

16. Plaintiffs have failed to exhaust available state

remedies.

17. Plaintiffs’ claims are not ripe for disposition in

this Court.

18. At all times, Light-Heigel has properly carried

out its duties as Township Engineer pursuant to the terms

of the Second Class Township Code.

WHEREFORE, Light-Heigel & Associates, Inc.

respectfully requests that as to it Plaintiffs’ Second

Amended Complaint be dismissed.

HARTMAN UNDERHILL &

BRUBAKER LLP

By: /s/ Christopher S. Underhill

Christopher S. Underhill

Attorney I.D. #07013

Attorneys for Light-Heigel &

Associates, Inc.

221 East Chestnut Street

Lancaster, PA 17602-2782

(717) 299-7254

eee a a

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD C. ANGINO, : CIVIL ACTION -—- LAW

ALICE K. ANGINO and

KING DRIVE CORP.,

Plaintiffs

* * NO. 1:CV-00-0086

J. THOMAS VAN WAGNER, °

JEFFERY SMITH, RICHARD °

PEFFER, Individually and as °

Supervisors of Middle Paxton * JUDGE CAPUTO

Township, MIDDLE PAXTON °

TOWNSHIP, JEFFREY A.

ERNICO, METTE, EVANS & °

WOODSIDE, P.C., MARY * JURY TRIAL

JANE DAVIS, Individually * DEMANDED

and as Middle Paxton :

Township Codes Enforcement °

Officer, and LIGHT-HEIGEL

& ASSOCIATES, INC.,

Defendants.

ANSWER AND AFFIRMATIVE DEFENSES OF

DEFENDANTS J. THOMAS VAN WAGNER,

MI RIC P

Individually and as Supervisors of Middle Paxton

Townshi N TOWNSHIP and

MARY In ually and as Middle

Paxton T odes Enforcement Officer

TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

1. Denied.

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted.

6. Admitted.

7. Admitted with correction. The Defendant’s first name

is spelled “Jeffery”.

8. Admitted.

9. Admitted in part, denied in part. To the extent it is

being alleged that the Defendant Supervisors are liable

upon the claims asserted in either their personal or official

capacities, said allegations are specifically denied. The

remaining allegations are admitted.

10. Admitted in part, denied in part. To the extent it is

being alleged that Defendant Davis is liable upon the

claims asserted in either her personal or official capacity,

said allegations are specifically denied. The remaining

allegations are admitted.

11. Admitted.

12. Admitted in part, denied in part. It is denied that

Defendant Ernico is the Township solicitor. To the con-

trary, at all times relevant hereto, Defendant Ernico was

the solicitor to the Board of Supervisors of Middle Paxton

Township. The remaining allegations are admitted.

13. The allegations are conclusions of law and/or fact to

which no answer is required.

14. The allegations are directed to a party other than the

answering Defendants and, therefore, no answer is re-

quired.

15. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

16. Admitted.

17. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

18. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

19. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

20. Denied. The Amended Complaint filed to No. 1-CV-

97-1265, attached as an exhibit to the original Complaint

and Amended Complaint in the instant action, is a written

document which speaks for itself and, therefore, any

attempt to characterize, summarize, paraphrase or inter-

pret it is denied.

21. Admitted.

22. Denied. The Settlement Agreement is a written

document which speaks for itself and, therefore, any

attempt to characterize, summarize, paraphrase or inter-

pret it is denied.

23. Denied.

24. Admitted in part, denied in part. It is admitted that

the Supervisors of Middle Paxton Township (hereinafter

“the Supervisors”) have adopted zoning and land develop-

ment amendments, the 2000 Zoning Ordinance, and a

10b

proposed new Subdivision Ordinance. The remaining

allegations are denied.

25. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

26. Admitted.

27. Admitted.

28. Admitted in part, denied in part. It is admitted that

Stan Custer obtained approval from the Township to

utilize an on-site sewage package treatment plant. The

remaining allegations are denied. By way of further

answer, Middle Paxton Township (hereinafter “the Town-

ship”) neither approved or disapproved the slope of drive-

ways, and it is believed that the Township did not approve

construction of a public access road in excess of 10%.

29. Admitted in part, denied in part. It is admitted that

Cameron Geisel obtained a waiver from the 500 foot cul-

de-sac limitation. The remaining allegation is denied as

the 1,280 foot figure is the combined length of two (2)

streets.

30. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations as the phrases “relatively near”

and “similar mountainside terrain” are too indefinite.

31. _Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

32. Denied. The Dresdner Comprehensive Plan is a

written document which speaks for itself and any attempt

11b

to characterize, summarize, paraphrase or interpret it is

denied.

33. Admitted in part, denied in part. It is admitted that

the Township adopted a steep slope ordinance in 1988.

The remaining allegations are denied as they purport to

characterize, summarize, paraphrase or interpret written

documents, i.e. the 1988 steep slope ordinance and the

Dresdner Comprehensive Plan, which speak for them-

selves. The remaining allegations are denied.

34. Admitted in part, denied in part. It is admitted that

the Township adopted an ordinance which defined steep

slopes as being 12%, 15% and 18% and which required

three, five and ten acres, respectively, for each lot. The

remaining allegations are denied.

35. Denied. The allegations relate to written documents,

i.e. ordinances, which speak for themselves and any

attempt to characterize, summarize, paraphrase or inter-

pret them is denied.

36. Admitted.

37. Denied. The allegations relate to written documents,

i.e. questionnaires, which speak for themselves and any

attempt to characterize, summarize, paraphrase or inter-

pret them is denied.

38. Admitted in part, denied in part. It is admitted that

the Township adopted a Comprehensive Plan in 1998 and

a Zoning Ordinance. The remaining allegations are denied.

39. Denied.

40. Admitted.

12b

41. Denied. The answering Defendants are unable to

admit une allegation as the map referred to has not been

specifically identified.

42. Denied. The answering Defendants are unable to

admit the allegation as the map referred to has not been

specifically identified.

43. Denied. The answering Defendants are unable to

admit the allegation as the map referred to has not been

specifically identified.

44. Denied.

45. Admitted in part, denied in part. It is admitted that

the Supervisors, as the governing body of the Township,

are vested with the sole authority to adopt and amend

comprehensive plans, including the establishment of

zoning districts and zoning boundary lines, by resolution

in accordance with the Municipalities Planning Code. The

remaining allegations are denied.

46. Admitted in part, denied in part. It is admitted that

the 2000 Zoning Ordinance resulted in some portion of

Plaintiffs’ property being classified as agricul-

tural/residential low density. The remaining allegations

are denied.

47. Denied. The allegations relate to written documents,

i.e. ordinances, which speak for themselves and any

attempt to characterize, summarize, paraphrase or inter-

pret them is denied. The remaining allegations are denied.

48. Denied. The allegations concerning the Municipali-

ties Planning Code’s recommendations are conclusions of

law and/or fact to which no answer is required and they

are, therefore, denied. The remaining allegations relate to

13b

written documents, i.e. comprehensive plans and zoning

ordinances, which speak for themselves and any attempt

to characterize, summarize, paraphrase or interpret them

is denied.

49. Denied. The allegations relate to written documents,

i.e. comprehensive plans and zoning ordinances, which

speak for themselves and any attempt to characterize,

summarize, paraphrase or interpret them is denied. The

remaining allegations are denied.

50. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

51. Admitted in part, denied in part. It is admitted that

the 2000 Zoning Ordinance contains a steep slope overlay

which requires three acres for 12% slopes, five acres for

15% slopes and ten acres for 18% or greater slopes. The

remaining allegations are denied.

52. Denied. The Dauphin County 1992 Comprehensive

Plan is a written document which speaks for itself and any

attempt to characterize, summarize, paraphrase or inter-

pret it is denied.

53. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

54. Denied.

55. Denied, The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

56. Denied.

14b

57. Denied.

58. Admitted in part, denied in part. It is admitted that

Defendant Ernico authored the letter of October 27, 1997

in response to the letter of Charles Guttenplan, Exhibits

“A” and “B”, respectively, to the Second Amended Com-

plaint. The letters are written documents which speak for

themselves and any attempt to characterize, summarize,

paraphrase or interpret them is denied.

59. Denied. The 1998 and the 1987 Comprehensive Plans

are written documents which speak for themselves and

any attempt to characterize, summarize, paraphrase or

interpret them is denied.

60. Denied. The 1992 Comprehensive Plan of Dauphin

County is a written document which speaks for itself and

any attempt to characterize, summarize, paraphrase or

interpret it is denied.

61. Denied. The Comprehensive Plan and Zoning Ordi-

nance of Lower Paxton Township are written documents

which speak for themselves and any attempt to character-

ize, summarize, paraphrase or interpret them is denied.

62. Denied. The allegations relate to various written

documents, i.e. zoning ordinances of contiguous townships,

which speak for themselves and any attempt to character-

ize, summarize, paraphrase or interpret them is denied.

63. Denied. The allegations relate to various written

documents which speak for themselves and any attempt to

characterize, summarize, paraphrase or interpret them is

denied.

64. Admitted in part, denied in part. It is admitted that

the steep slope provisions in the Township’s 2000 Zoning

15b

Ordinance is an overlay. The remaining allegations are

denied.

65. Denied. It is specifically denied that the answering

Defendants have acted in a manner that is arbitrary,

capricious and/or discriminatory over the past decade .

and/or through the 1998 Comprehensive Plan and 2000

Zoning Ordinance. The remaining allegations are conclu-

sions of law and/or fact to which no answer is required.

66. Denied. The answering Defendants are without

knowledge or information sufficient to form a belief as to

the truth of the allegations and proof is demanded.

67. Denied. The allegations are conclusions of law and/or

fact to which no answer is required.

68. Denied. By way of further answer, the 2000 Zoning

Ordinance defines “resort”.

69. Denied.

70. Denied. It is specifically denied that the answering

Defendants have singled out or discriminated against the

Plaintiffs.

71. Denied. The allegation relates to an Order issued by

Judge Turgeon and a subsequent decision of the Com-

monwealth Court which are written documents that speak

for themselves and any attempt to characterize, summa-

rize, paraphrase or interpret them is denied.

72. Denied. The allegation relates to a determination by

the Arbitrator which is a written document that speaks for

_ itself and any attempt to characterize, summarize, para-

phrase or interpret it is denied.

. f .

16b

73. Denied. The allegation relates to a determination of

the Court of Common Pleas of Dauphin County which is a

written document that speaks for itself and any attempt to

characterize, summarize, paraphrase or interpret it is

denied. By way of further answer, the order was subse-

quently withdrawn.

74. Denied. It is denied that the district justice reversed

the closure, but rather simply found Plaintiff Richard

Angino not guilty of a summary offense, a determination

from which the Township had no right of appeal.

75. Admitted in part, denied in part. It is admitted that

the Supervisors brought a petition against Plaintiffs for

breaching the Settlement Agreement. The remaining

allegations relate to a written document, i.e. the court’s

Order, which is a written document that speaks for itself

and any attempt to characterize, summarize, paraphrase

or interpret it is denied.

76. Denied.

77. Denied.

78. Denied.

79. Admitted in part, denied in part. It is admitted that

the Supervisors have, on occasion, elected not to follow the

recommendations of the Township’s Planning Commission

on matters related to various plans that have been sub-

mitted to it for approval due to non-compliance with

applicable ordinances. The remaining allegations are

denied.

17b

80. Denied. It is specifically denied that the answering

Defendants have acted illegally toward, have discrimi-

nated against or have violated the constitutional rights of

the plaintiffs.

a.) Denied;

b.) Admitted in part, denied in part. It is admitted

that the Supervisors have refused to consider a waiver of

Straw Hollow Road width to 16 or 18 feet because the

Plaintiffs agreed to a different width in the Settlement

Agreement. The remaining allegation is denied;

c.) Admitted in part, denied in part. It is admitted

that the Supervisors have required a width of 22 feet for

the existing Straw Hollow Road rather than a width of 16

or 18 feet because the Plaintiffs agreed to the 22 foot width

in the Settlement Agreement. It is denied that there is, or

should be, any correlation between the width of pre-

existing roads and the width of Straw Hollow Road;

d.) Admitted in part, denied in part. It is admitted

that the Township has a budget surplus. The remaining

allegations are denied. The allegations concerning the

1998 Comprehensive Plan are denied as they relate to a

written document.which speaks for itself and any attempt

to characterize, summarize, paraphrase or interpret it are

denied. By way of further answer, the Comprehensive

Plan contains an Action Plan, a portion of which relates to

highways and circulatory systems, with a recommendation

that it be re-evaluated annually. Furthermore, the Town-

ship has undertaken to repave and improve certain Town-

ship roads during the year 2001 and is attempting to

obtain State funds for other such improvements;

18b

e.) Denied. It is admitted, however, that the 2000

Zoning Ordinance requires road widths which may be

generally wider than some existing state and township

roads within the Township;

f.) Denied. It is specifically denied that the Supervi-

sors have used the Comprehensive Plan to preclude

development;

g.) Denied. It is admitted, however, that the Super-

visors granted a waiver to Verizon on or about August 2,

2001. It is denied that Defendant Mette Evans repre-

sented Verizon in that application, although it had repre-

sented Verizon in other matters, which fact was disclosed.

It is further denied that Defendant Ernico participated in

any way at the hearing on the application. Moreover, it is

denied that Verizon’s application was substantially similar

to any application submitted by the Plaintiffs;

h.) Denied as stated. It is admitted, however, that

Defendant Van Wagner stated that permitting the specific

waivers requested by the Plaintiffs at the August 2, 2001

meeting would not be appropriate because he had never

voted to approve the same waivers when requested by

others. It is denied that Defendant Van Wagner made a

blanket or general statement that waivers should never be

granted or that waivers should never be granted to the

Plaintiffs;

i.) Denied as stated;

j.) Denied as stated.

19b

42 U.S.C. §1983

Due Process - Equal Protection

Pennsylvania Constitutional Violations

81. The answers set forth above in Paragraphs 1 through

80 are incorporated herein by reference.

82. Denied. It is specifically denied that the answering

Defendants have acted to deprive the Plaintiffs of their

federally protected constitutional due process and equal

protection and other property rights.

83. Denied. It is specifically denied that the answering

Defendants have acted to deprive the Plaintiffs of their

federally protected rights. The remaining allegations are

denied on the basis that the answering Defendants are

without knowledge or information sufficient to form a

belief as to the truth thereof and proof is demanded.

84. Denied. It is specifically denied that the answering

Defendants have engaged in conduct to deprive Plaintiffs

of their federally protected rights. The remaining allega-

tions are denied on the basis that the answering Defen-

dants are without knowledge or information sufficient to

form a belief as to the truth thereof and proof is de-

manded.

85. Denied. It is specifically denied that the answering

Defendants have engaged in conduct that is outrageous,

intentional, punitive and undertaken with reckless indif-

ference toward the Plaintiffs’ rights.

86. Denied. It is specifically denied that the answering

Defendants have violated Plaintiffs’ civil rights. The

remaining allegations are denied on the basis that the

20b

answering Defendants are without knowledge or informa-

tion sufficient to form a belief to the truth thereof and

proof is demanded.

WHEREFORE, Defendants J. Thomas Van Wagner,

Jeffery Smith and Richard Peffer, individually and as

Supervisors of Middle Paxton Township, Middle Paxton

Township, and Mary Jane Davis, individually and as

Middle Paxton Township Codes Enforcement Offficer,

demand judgment in their favor and against Plaintiffs.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ Second Amended Complaint fails to set

forth causes of action upon which relief may be granted

against the answering Defendants.

2. The answering Defendants have not deprived or

engaged in conduct intended to deprive Plaintiffs of their

federally protected rights.

3. The answering Defendants have not deprived or

engaged in conduct intended to deprive the Plaintiffs of

their state protected rights.

4. The answering Defendants have not conspired or

engayved in conduct, together or with others, intended to

deprive Plaintiffs of their federally or state protected

rights.

5. The answering Defendants have not violated or

breached the terms of the Settlement Agreement refer-

enced in the Second Amended Complaint.

6. The answering Defendants have not imposed arbi-

trary, capricious or unreasonable conditions upon the

development of Plaintiffs’ land.

21b

7. The answering Defendants have acted in accordance

with applicable ordinances, the Municipalities Planning

Code, and sound engineering and land development

principles in imposing conditions upon the development of

Plaintiffs’ land.

8. Plaintiffs have adequate remedies under state law

which they have failed to exhaust.

9. Plaintiffs’ Second Amended Complaint fails to set

forth any racial or class-based animus to support a cause

of action under 42 U.S.C. §1905(3).

10. The Second Amended Complaint fails to set forth

causes of action upon which punitive damages may be

awarded. .

11. Punitive damages may not be awarded against

Middle Paxton Township, the Middle Paxton Board of

Supervisors, the individual Supervisors or the Codes

Enforcement Officer in their official capacities.

12. The Individual Defendants are entitled to qualified

immunity.

13. Plaintiffs lack standing to assert any claims against

the answering Defendants.

14. Plaintiffs’ claims are not ripe for hearing or disposi-

tion before this tribunai.

15. As a result of the Settlement Agreement referenced

in the Second Amended Complaint, the answering Defen-

dants are relersed from all or some of the claims for

damages.

16. Some or all of Plaintiffs’ claims are barred by the

applicable statutes of iimitations.

22b

17. Defendant Mary Jane Davis, as the Codes Enforce-

ment Officer, had no power or authority to enact zoning

ordinances, subdivision and land development ordinances

or comprehensive plans.

18. Defendant Mary Jane Davis, as the Codes Enforce-

ment Officer, had no power or authority to grant waivers

or exceptions or to approve or disapprove land develop-

ment and/or subdivision plans submitted by the Plaintiffs.

19. Defendant Jeffery Smith did not become a member of

the Middle Paxton Township Supervisors until January

1998 and he participated in his first official meeting as a

Supervisor on January 5, 1998.

20. Defendant Jeffery Smith had no power or authority

to enact zoning ordinances, subdivision and land develop-

ment ordinances or comprehensive plans prior to January

5, 1998.

21. Defendant Jeffery Smith had no power or authority

to grant waivers or exceptions or to approve or disapprove

land development and/or subdivision plans submitted by

the Plaintiffs prior to January 5, 1998.

22. The answering Defendants reserve the right to

amend their affirmative defenses in accordance with

applicable law, rules of procedure and the Court’s Case

Management Plan.

WHEREFORE, Defendants J. Thomas Van Wagner,

Jeffery Smith and Richard Peffer, individually and as

Supervisors of Middle Paxton Township, Middle Paxton

Township, and Mary Jane Davis, individually and as

23b

Middle Paxton Township Codes Enforcement Officer,

demand judgment in their favor and against Plaintiffs.

THOMAS, THOMAS & HAFER, LLP

/s/ C. Kent Price

C. Kent Price, Esquire

305 North Front Street

P.O. Box 999

Harrisburg, PA. 17108

(717) 255-7632

ATTORNEYS FOR DEFENDANTS

J. THOMAS VAN WAGNER,

JEFFERY SMITH, RICHARD

PEFFER, individually and as

Supervisors of Middle Paxton

Township, MIDDLE PAXTON

TOWNSHIP and MARY JANE

DAVIS, individually and as

Middle Paxton Township Codes

Enforcement Officer

24b

‘ IN THE UNITED STATES DISTRICT COURT

: MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD C. ANGINO, :

ALICE K. ANGINO AND : NO. 1:-CV-00-0086

KING DRIVE CORP., : JUDGE

: YVETTE KANE

Plaintiffs.

Vv.

J. THOMAS VANWAGNER,

JEFFREY SMITH, RICHARD

PEFFER, Individually andas_ .

Supervisors of Middle Paxton ‘

Township, MIDDLE PAXTON -

TOWNSHIP, JEFFREY A. 7

ERNICO and METTE, EVANS ‘

& WOODSIDE, PC., MARY :

JANE DAVIS, Individually

and as Middle Paxton Z

Township Codes Enforcement -

Officer and LIGHT-HEIGEL -

& ASSOCIATES, INC.,

Defendants

BRIEF IN SUPPORT OF JOINT MOTION OF

DEFENDANTS VANWAGNER, SMITH, PEFFER,

MIDDLE PAXTON TOWNSHIP, ERNICO, METTE

EVANS & WOODSIDE, P.C. AND DAVIS TO

DISMISS AMENDED COMPLAINT AND/OR

FOR A MORE DEFINITE STATEMENT

(Filed May 8, 2000)

I. PROCEDURAL HISTORY AND STATEMENT OF

FACT:

On or about January 17, 2000, Plaintiffs commenced

this civil action by filing a Complaint in which they

25b

attempted to assert various claims under the Fourteenth

Amendment of the United States Constitution, the Fifth

Amendment of the United States Constitution, 42

U.S.C.A. § 1983, 42 U.S.C.A. § 1985(3) and unspecified

pendent state law claims. These claims arise out of a land

use dispute that was previously before this court at civil

action number 1:CV-97-1265. That case was settled in

1998. At that time, the parties agreed on an extensive

Settlement Agreement, a copy of which was attached to

the Complaint in this action.

In response to the Complaint, Defendants VanWag-

ner, Smith, Peffer, Middle Paxton Township, Ernico,

Mette, Evans & Woodside, P.C. and Davis filed a Joint

Motion to Dismiss some of the claims set forth in the

Complaint and for a More Definite Statement. Plaintiffs

then filed an Amended Complaint, in accordance with

F.R.C.P. 15, in which they have confined their claims

under § 1983 and for civil conspiracy to violate their

constitutional rights. Being of the opinion that the

Amended Complaint was deficient in various respects, the

aforesaid Defendant filed a Joint Motion to Dismiss

Amended Complaint and/or For a More Definite State-

ment. This Brief is filed in support thereof.

Il. STATEMENT OF ISSUES INVOLVED:

1. Whether Plaintiffs have failed to state claims

under the 5th and 14th Amendments where

there are adequate remedies under state

law.

2. Whether Plaintiffs have failed to state the

basis of a § 1983 claim against Defendant

Ernico and his law firm where their role was

26b

merely to provide advice and counsel but not

to make policy or decisions.

3. Whether Plaintiffs’ conspiracy claim must

fail because it lacks the requisite specificity,

and because the underlying claim upon

which it is based is not justiciable.

4. Whether Plaintiffs’ claims for punitive dam-

ages against Defendant Middle Paxton

Township and the Defendant Supervisors in

their official capacities should be dismissed.

5. Whether all of the individual Defendants are

entitled to qualified immunity, and there-

fore dismissal of the action as to them,

where the Plaintiffs have failed to allege

that their conduct has violated clearly estab-

lished constitutional law.

6. Whether, in the alternative, Plaintiffs should

be required to file a more definite statement

of the claims against the Defendants.

III. LEGAL DISCUSSION:

A. Plaintiffs have failed to state a claim upon

which relief can be granted under the 5th and

14th Amendments because there are adequate

remedies under state law.

Plaintiffs assert a § 1983 theory based upon an al-

leged denial of procedural due process as it relates to their

attempts to develop a 10-lot subdivision.

As stated in Defendants’ brief in support of their

motion to dismiss Plaintiffs original Complaint, the courts

have held that aggrieved parties, such as the Plaintiffs

perceive themselves to be, cannot assert a direct claim

27b

against actors such as the Defendants herein under either

the 5th or 14th Amendments to the United States Consti-

tution. The sole method to pursue such claims is pursuant

to 42 U.S.C.A. § 1983.

The Supreme Court has never held that there is

an implied private right of action against a state,

or a state actor, under the Fourteenth Amend-

ment. The Supreme Court has enunciated an im-

plied right of action under the Fourth and Fifth

Amendments, but has gone no further. See

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d

619, 91 S. Ct. 1999 (1971) (Fourth Amendment

implied right of action); Davis v. Passman, 442

U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979)

(Fifth Amendment implied right of action). The

Court need not break new legal ground by decid-

ing whether there is an implied right of action

under the Fourteenth Amendment because 28

U.S.C. § 1983 provides a remedy for violations of

these rights. “Bivens teaches that the existence

of an effective and substantial federal statutory

remedy for the plaintiffs obviates the need to im-

ply a constitutional remedy on [his] behalf.”

Rogin v. Bensalem Twp., 616 F.2d 680, 686 (3rd

Cir. 1980), cert. denied sub nom, Mark-Gardner

Assocs., Inc. v. Bensalem Twp., 450 U.S. 1029, 68

L.Ed.2d 223, 101 S.Ct. 1737 (1981). Accordingly,

plaintiffs’ first theory does not present a cause of

action upon which relief can be granted.

Hammond v. Creative Financial Planning Organization,

Inc., 800 F. Supp. 1244 (E.D. Pa. 1992). See also Reynolds

v. Wagner, 936 F. Supp. 1216, 1223, n.4 (E.D. Pa. 1996).

Although some cases have suggested that a direct

cause of action may exist under the Fifth Amendment,

28b

those cases have limited direct causes of action under that

~ Amendment to claims against federal officials. Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971); Davis v.

Passman, 442 U.S. 228 (1979). In addition, courts have

also specified that the Fifth Amendment does not provide

a direct cause of action under the just compensation

clause. Evans v. Washington County, 1999 U.S. Dist. Lexis

20036 (D. Ore. 1999) at slip op. 2, n. 2. Furthermore, the

Fifth Amendment is only applicable to the states and local

municipalities through the Fourteenth Amendment.

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.

155, (1980); Quality Refrigerated Services, Inc. v. City of

Spenser, 908 F. Supp. 1471 (N.D. Iowa 1995).

To the extent that the claim under Count I of the

Amended Complaint asserts, inter alia, a cause of action

under 42 U.S.C.A. § 1983, such claim is lega!'y deficient.

The Plaintiffs have adequate remedies as landowners and

potential developers under state law to address the issues

raised in the Amended Complaint, and they have failed to

allege that such remedies are inadequate.

It is the law in this Circuit that a state provides

adequate due process when it provides “reason-

able remedies to rectify a legal error by a local

administrative body.” Pennsylvania clearly pro-

vides such remedies ... and therefore plaintiffs’

[sic] have no justifiable due process claim.

Bello v. Walker, 840 F.2d 1124 at 1128 (CA 3d 1988).

In Pennsylvania the procedure for challenging

zoning ordinances substantially conforms with

the general due process guidelines enunciated by

the Supreme Court, .... Pennsylvania’s system

of adjudicating zoning challenges appears to be

29b

consistent with the requirements of due proc-

ess...

Rogin v. Bensalem Township, 616 F2d 680 at 695 (CA 3d

1980). Plaintiffs have failed to set forth any behavioral or

structural allegations from which the Court can infer that

the process was unconstitutional.

For these reasons, Count I of the amended Complaint

should be dismissed.

B. Plaintiffs have failed to state the basis of a

§ 1983 claim against Defendant Ernico and his

law firm where their role, as solicitor to the

Township, was merely to provide advice and

counsel but not to make policy or decisions.

Defendant Jeffrey Ernico was the solicitor for Middle

Paxton Township during the time period relevant to

Plaintiffs’ claims. Mr. Ernico was, and is, a partner in the

law firm of Mette, Evans & Woodside, P.C.

The duties of a solicitor relative to a second class

township, such as Middle Paxton Township, are set forth

in 53 P.S. § 66103. The solicitor acts solely as the legal

advisor to the board of supervisors; he has no legal author-

ity to enact legislation or to make executive or administra-

tive decisions. The solicitor may only act pursuant to the

board of supervisors’ authorization. A municipal solicitor

is neither a “public employee” or a “public official” within

the scope of the Ethics Act. Ballou v. State Ethics Commis-

sion, 496 Pa. 127, 486 A.2d 186 (1981).

The Ballou opinion contained the following quote

regarding the position of a county solicitor:

30b

No functions of government are delegated to him.

Nor can he lawfully exercise any powers of sover-

eignty. He serves as counsel to the commission-

ers in the discharge of their public duty just as

any privately employed attorney serves his cli-

ents. His duties are to advise the commissioners

and to represent the county in litigation author-

ized by them or instituted against the county.

* * *

His duties are important in the sense that the

advice and actions of an attorney always entail

grave responsibility; but they are performed for

the board. He has no direct connection with, or

responsibility to, the public; he is entirely subor-

dinate to the board; they may follow his advice or

disregard it; he cannot control their actions; he

cannot perform their duties; his appointment is

for no definite term, and he can be recalled at

any time; he has no grave and important duties

involving a function of government in their per-

formance... .

Ballou, supra, 436 A.2d at 189-190.

Mr. Ernico is not a township official and, therefore,

did not act at any time relevant to Plaintiffs’ claims under

color of state or local law, nor did his conduct constitute

state action. Therefore, he and his law firm are not proper

parties to the present matter.

The Court’s attention is also directed to Pacelli v.

deVito, 972 F.2d 871 (CA 7th 1992) and Arnold v. Dvoskin,

90 Civ. 4448 (E.D. N.Y. 1993) which held that an agency

attorney cannot be liable under § 1983 for merely provid-

ing legal advice.

Oe ee ee ee ee, Sal

31b

For these reasons, the Amended Complaint should be

dismissed as to Defendant Jeffrey A. Ernico, Esquire and

Defendant Mette, Evans & Woodside, P.C.

C. Plaintiffs’ conspiracy claim must fail because it

lacks the requisite specificity and because the

underlying claim upon which it is based is not

justiciable.

Count II of the Amended Complaint purports to set

forth a claim for civil conspiracy to violate the Plaintiffs’

federally protected rights. However, this claim is couched

in nothing more than conclusory language and is wholly

void of the requisite specificity required to set forth a

cognizable claim of conspiracy in a civil rights context.

_ To show 4 conspiracy there must be evidence of (1) an

actual violation of a right protected under § 1983 and (2)

actions taken in concert by the defendants with the spe-

cific intent to violate such right. There must be an agree-

ment or an understanding to deprive the plaintiff of his or

her constitutional rights. Williams v. Fedor, 69 F.Supp.

649 at 665 (M.D. Pa. 1999).

Complaints in civil rights actions must be pleaded

with factual specificity. Hall v. Pennsylvania State Police,

570 F2d 86 (CA 3d 1978); United States v. City of Phila-

delphia, 482 F. Supp. 1274 (E.D. Pa. 1979). Vague and

conclusory allegations will not survive a motion to dismiss.

Id. The purpose of the specificity requirement is to assure

that civil rights actions are not frivolously brought and to

enable the court to assess whether the action may be

meritorious. Shirey v. Bensalem Township, 501 F. Supp.

1138 at 1141 (E.D. Pa. 1980).

ene

32b

The same requirement of factual specificity is no less

true for civil rights claims based upon an alleged conspir-

acy. It is a longstanding rule in the Third Circuit that a

mere general allegation of conspiracy is insufficient.

Kalmanovitz v. G. Heileman Brewing Co., Inc., 595

F.Supp 1385 at 1400 (D.Del. 1984), affd 769 F.2d 152 (CA

3d 1985).

Numerous circuit courts have held that a con-

spiracy can be the basis of a § 1983 action, but

conclusory allegations of a conspiracy cannot

withstand a motion to dismiss. (emphasis added)

Shirey v. Bensalem Township, 501 F. Supp. 1138 at 1141

(E.D. Pa. 1980).

The plaintiffs must plead with particularity the

“circumstances” of the alleged wrong doing in or-

der to place the defendants on notice of the pre-

cise misconduct with which they are charged.

Only allegations of conspiracy which are particu-

larized, such as those addressing (1) the period of

the conspiracy, (2) the object of the conspiracy,

and (3) certain actions of the alleged conspirators

taken to achieve that purpose, will be deemed

sufficient.

Loftus v. SEPTA, 843 F. Supp. 981 at 986 (E.D. Pa. 1994);

Labalokie v. CAIU, 926 F. Supp. 503 at 508-509 (MD. Pa.

1996)

The allegations of conspiracy must be of such suffi-

ciency as to describe the general composition of the con-

spiracy, some or all of its broad objectives, and a

defendant’s general role in that conspiracy. Alfaro v. E.F.

Hutton & Co., 606 F. Supp. 1100 (E.D. Pa. 1985). An

inference of conspiracy from the pleading is no substitute

33b

for the requirement that the circumstances of the conspir-

acy be pleaded with specificity. Kalmanovitz, supra.

Here the Plaintiffs have failed to identify the acts of

the various Defendants which might arguably constitute a

conspiracy. Rather, the Plaintiffs “lump” all of the Defen-

dants together as a single unit in their conspiracy theory

without identifying the specific actions of each of the

alleged conspirators. The necessity of articulating the acts

of each conspirator becomes particularly critical in circum-

stances such as those presented in this case where not all

of the Defendants share the same legal authority to

undertake acts that might deprive the Plaintiffs of their

rights. For example, Defendant Mary Jane Davis, as

Township Enforcement Officer, does not have any legal

authority to approve or disapprove subdivision applica-

tions, such authority being vested solely in the Board of

Supervisors.

Moreover, if the Amended Complaint fails to state a

cause of action for a § 1983 claim, as argued above, then

the cause of action based upon an alleged conspiracy to

violate the Plaintiffs’ federally protected rizhts must fail.

There can be no actionable conspiracy to commit an act if

the act itself is not justiciable.

For these reasons Count [I of the Amended Complaint

should be dismissed.

D. Plaintiffs’ claims for punitive damages against

Middle Paxton Township and the Township

Supervisors in their officia! capacities must be

dismissed.

The case law with respect to this issue was clearly

established by the United States Supreme Court in the

34b

case of City of Newport v. Fact Concerts, 453 U.S. 247

(1981). No basis exists upon which Plaintiffs’ claims in this

regard should be permitted to proceed. Punitive damages

may only be recovered against local officials in their

individual capacities. Moreover, since a claim against a

public official in his official capacity is the same as a claim

against the entity, punitive damages are not available

against a municipal official acting in that official capacity.

Bourque v. Town of Bow, 736 F. Supp. 398 (D.N.H. 1990).

Accordingly, Defendants request that Plaintiffs’ claims for

punitive damages against Middle Paxton Township and

the individual Middle Paxton Township Defendants in

their official capacities be dismissed.

E. The Individual Defendants are entitled to

qualified immunity and dismissal of the action

against them where Plaintiffs have failed to

allege that the conduct of the individual De-

fendants hes violated clearly established con-

stitutional law.

State and local officials who carry out executive and

administrative functions, in contrast to legislative func-

tions, may assert the defense of qualified immunity. In

land use cases, the enactment, amendment or repeal of

zoning and subdivision ordinances has been regarded as

legislative in nature. On the other hand, rulings on vari-

ous applications for approvals, variances, conditional uses,

etc. have been regarded as executive in nature. Botton v.

Marple Twp., 689 F. Supp. 477 (E.D. Pa. 1988).

In 1982 the Supreme Court established the governing

test for qualified immunity, namely, whether the official

violated clearly established federal law. Hariow v. Fitzger-

ald, 457 U.S. 800, 102 S. Ct. 2727, 73 L.Ed. 2d 396 (1982).

35b

Specifically, public officials who carry out executive and

administrative functions are protected from personal

monetary liability so long as their actions do not violate

“clearly established [federal] statutory or constitutional

rights of which a reasonable person would have known.”

Harlow, supra, 457 U.S. at 818. This standard, which

turns on the “objective legal reasonableness” of the official

(Harlow, supra, 457 U.S. at 819], protects “all but the

plainly incompetent or thc se who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335 at 341, 106 S.Ct.

1092, 89 L.Ed. 2d 271 (1986).

Qualified immunity applies in cases involving claims

against public officials in their individual capacities; it

does not apply to official capacity claims because such

claims are the equivalent of a claim against the govern-

mental entity on whose behalf the official is acting. The

purposes of qualified immunity is to protect public officials

“from undue interference with their duties and from

potentially disabling threats of liability.” Harlow, supra,

457 U.S. at 806.

The Amended Complaint does not allege that the

individual Defendants are not entitled to qualified immu-

nity, nor does it allege that the individual Defendants

violated clearly established federal law. In-the absence of

such allegations, the individual Defendants are entitled to

qualified immunity and the Amended Complaint should be

dismissed as to such Defendants. Mitchell v. Forsyth, 472

U.S. 511, 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985); Siegert v.

Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed. 2d 277

(1991).

36b

F. In the alternative, Plaintiffs should be re-

quired to file a more definite statement of the

claims against Defendants since the allega-

tions are vague, conclusory and ambiguous,

and they fail to differentiate the acts and/or

omissions of each Defendant.

As previously discussed herein, a complaint alleging a

civil rights violation must be pleaded with some degree of

specificity, and certainly in terms that are not vague,

conclusory and/or ambiguous.

A more definite statement is necessary to permit

Defendants to properly respond to the Amended Com-

plaint in that Plaintiffs fail to articulate and differentiate

between the actions or omissions of each of the Defen-

dants. Not all of the individual Defendants are of the same

legal stature, nor do they have the same authority and

powers as it relates to the proposed development of the

Plaintiffs’ land. For example, where the Enforcement

Officer may have the authority to issue building permits,

the Township Supervisors do not. On the other hand, the

Supervisors have the authority to approve subdivision

plans which the Enforcement Officer does not. The Plain-

tiffs should be required to frame a pleading which ad-

dresses the acts or omissions of each Defendant or related —

groups of Defendants, as opposed to lumping them all

together as if they were interchangeable parts.

Furthermore, Plaintiffs fail to set forth their causes of

actions in separate counts. These failures make the

Complaint vague and ambiguous. In addition, Defendants

are not able to respond to the allegations against each of

them. These deficiencies in the Plaintiffs’ Amended Com-

plaint are substantial and Plaintiffs should be directed to

file a more definite statement of the facts, if any exist,

37b

which form the basis of their claims against the Defen-

dants.

Respectfully submitted

THOMAS, THOMAS &

HAFER, LLP

/s/ C. Kent Price

C. Kent Price, Esquire

ID No.: 06776

305 North Front Street

P.O. Box 999

Harrisburg, PA 17108

(717) 255-7632

Attorney for Defendants

VanWagner, Smith,

Peffer, Middle

Paxton Township and Davis

MCKISSOCK & HOFFMAN, P.C.

Jeffrey P. Lewis /s

Jeffrey P. Lewis, Esquire

105 East Evans Street

P.O. Box 3086

West Chester, PA 19381

Attorney for Defendants

Jeffrey A. Ernico and

Mette, Evans & Woodside, P.C.

METTE, EVANS & WOODSIDE, P.C.

Kathryn L. Simpson /s

Kathryn L. Simpson, Esquire

3401 North Front Street

P.O. Box 5950

Harrisburg, PA 17110-0950

Co-Counsel for Defendants

Jeffrey A. Ernico and

Mette, Evans & Woodside, P.C.

38b

CERTIFICATE OF SERVICE

AND NOW, I, C. KENT PRICE, ESQUIRE, for the

firm of THOMAS, THOMAS & HAFER, LLP, attorneys for

Defendants J. Thomas Van Wagner, Jeffrey Smith, Rich-

ard Peffer, Middle Paxton Township and Mary Jane Davis,

hereby certify that I have this day served the within Brief

in Support of Joint Motion to Dismiss Amended Complaint

and/or for a More Definite Statement by depositing a copy

of the same in the United States Mail, postage prepaid, at

Harrisburg, Pennsylvania, addressed to:

Richard C. Angino, Esquire

4503 North Front Street

Harrisburg, PA 17110

Christopher S. Underhill, Esquire

Hartrnan, Underhill & Brubaker, LLP

221 East Chestnut Street

Lancaster, PA 17602

Kathryn L. Simpson, Esquire

Mette, Evans & Woodside, P.C.

3401 North Front Street

P.O. Box 5950

Harrisburg, PA 17110-0950

Jeffrey P. Lewis, Esquire

McKissock & Hoffman, P.C.

105 East Evans Street

P.O. Box 3086

West Chester, PA 19381

THOMAS, THOMAS & HAFER LLP

/s/ C. Kent Price

C. Kent Price, Esquire

DATED: 5/08/00

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