# Opposition Brief — Angino v. Van Wagner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 823

## Text

Supreme Court, U.S
FILED |

No. 02-1812

In The
Supreme Court of the Gnites

v

RICHARD C. ANGINO; ALICE K. ANGINO;
and KING DRIVE CORP.,

Petitioners,
v.

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.

2
v

On Petition For Writ Of Certiorari To The United
States Court Of Appeals For The Third Circuit

.
v

RESPONDENTS’ BRIEF IN OPPOSITION

*
vy

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?

li

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.

iv

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

Vv

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

vi

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.

© Be Oe GI sicisdcricnsstinsinsciinuintainaanaine 4
Municipalities Planning Code, §916.1, 53 PS.

© REIL D <corsnrciliidesiscisentndiiamsobsintisicaadiaiesaicummmimiaels 9

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

1

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

2

¢ 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:

3

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

4

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.

+

5

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.

6

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.

7

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

8

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).

9

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.

10

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

11

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

12

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

13

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

14

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.

15

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

16

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).

TT

17

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

18

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

19

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

20

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.

ee
v

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.

21

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.

1b

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
V.

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.

2b

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.

(c) The preparation and enactment of the 2000

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.

3b

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.

4b

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

5b

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.

6b

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

7b

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.

8b

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.

9b

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

SS

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1701%3A2. Public record. Not legal advice.