PORT ALLEGANY – The Erie attorney representing all the
defendants in the case has filed, on their behalf, a motion to
dismiss the complaint brought against them in U.S. District Court
by William E. Burleson Jr. and Jeanette M. Burleson.
In a 21-page brief filed by Patrick M. Carey of Marshall,
Dennehey, Warner, Coleman and Goggin argues that the civil rights
complaint by the Burlesons “be dismissed with prejudice as a matter
of law.”
Dismissing with prejudice would mean the complaint could not be
refilled, short of reversal of that dismissal by a higher federal
court.
According to the brief, the basis for the dismissal would be
application of settled law, or a combination of statute and case
law (the outcomes of other cases which addressed the same or
related issues).
That approach is embodied in dozens of citations sprinkled
throughout the meaty response, which was filed on Oct. 24, the
final day a response could be filed.
Showing through the verbiage of the brief is a position
concerning the meaning of “conditional use.” The Burlesons’
position long has been that uses listed as conditional, in the Port
Allegany Zoning Ordinance, are permitted, the only question being
what, if any, conditions the borough would apply.
The defendants’ response posits that, like variances or
exceptions that can be granted through application to the Zoning
Hearing Board, conditional uses can be disallowed, allowed subject
to conditions, or disallowed by the borough council.
A major portion of the brief pertains to the individuals sued by
Burlesons: Judy Taylor, Madelyn Farber, Lewis Duell, Kate Kysor,
Everett Robbins, Roland Simons and Michael Farber. The other
defendants are the Borough of Port Allegany and Port Allegany
Borough Council.
The first six were members of the Port Allegany Borough Council
during some of the times alluded to in the suit, and except for
Simons, still are. Michael Farber was a member of the Port Allegany
Planning Commission when Burlesons’ request of a conditional use
for the 500 block of North Main Street was presented to the
commission in 2004.
The complaint names each of them “in (his/her) individual and
official capacity,” and charges the Farbers had a conflict of
interest relating to their businesses and the businesses the
Burlesons planned to have as tenants.
Carey’s brief states the complaint lacks sufficient specificity,
that the individual defendants were acting “under color of state
law,” and the defendants did not violate Burlesons’ Fifth Amendment
constitutional rights as alleged in the complaint, including
property rights.
The brief said the defendants are immune from suit according to
the doctrine of quasi-judicial immunity. This asks the court to
consider the borough council members and members of the planning
commission to have been acting in a judicial capacity when
interpreting the zoning ordinance or conducting public hearings or
deliberating on their decision concerning the Burlesons’
request.
As for their rights to procedural and substantive due process,
Carey’s brief argues that the Burleson complaint fails to show a
violation of this Fourteenth Amendment right.
The brief asserts that Port Allegany Borough and the borough
council are entitled to a dismissal because the Burlesons “have not
established a viable Monell claim against them.”
According to the cited decision, when a claim against a
municipal or government entity under the provision of law used in
the Burleson complaint, “the entity can only be liable when the
alleged constitutional violation implements or executes a policy,
regulation or decision officially adopted by the government body or
informally adopted by custom.”
Considerable text is devoted to the doctrine of qualified
immunity, as applied to all defendants. Under qualified immunity, a
defendant has “an entitlement not to stand trial or face the other
burdens of litigation.”
Carey argues that this “protects (from civil damages actions or
awards) government officials performing discretionary
functions.”
Other protections applicable to the defendants, according to the
brief, are found in the “Political Subdivision Tort Claims Act
and/or absolute privilege of high public officials.”
The brief cites both federal statutes and case law, and state
statutes and case law, including other states as well as
Pennsylvania.
