Stein v. City of Philadelphia - Motion To Dismiss

7/29/2019 Stein v. City of Philadelphia - Motion To Dismiss

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARC STEIN, :

:Plaintiff :

:

v. : Civil Action

: No. 13-4644

CITY OF PHILADELPHIA, et al. :

:

Defendants. :

ORDER

NOW, this _______ day of ____________, 2013, upon consideration of Defendant City

of Philadelphias Motion to Dismiss for Failure to State a Claim and any response thereto,

IT IS ORDERED that Defendants Motion is GRANTED. Plaintiffs claims against the

City of Philadelphia is dismissed with prejudice.

BY THE COURT:

__________________________

PETRESE B. TUCKER, C.J.

Case 2:13-cv-04644-PBT Document 3 Filed 09/06/13 Page 1 of 10


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MARC STEIN, :

:Plaintiff :

:

v. : Civil Action

: No. 13-4644


:

Defendants. :

DEFENDANT CITY OF PHILADELPHIAS

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Defendant City of Philadelphia files this Motion to Dismiss for Failure to State a Claim

under Fed. R. Civ. Pro. 12(b)(6) seeking that it be dismissed from this lawsuit. For the reasons

set forth in the attached Memorandum of Law, which Defendant incorporates by reference,

Defendant respectfully requests that this Honorable Court enter judgment in its favor and dismiss

Plaintiffs claims against it with prejudice.

Respectfully Submitted,

Date: September 6, 2013 s/ Christopher H. Rider

Christopher H. Rider, EsquireAssistant City Solicitor

Pa. Attorney ID No. 307265

City of Philadelphia Law Department

1515 Arch Street, 14th

FloorPhiladelphia, PA 19102

(215) 683-5444

[email protected]



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MARC STEIN, :

:Plaintiff :

:

v. : Civil Action

: No. 13-4644


:

Defendants. :

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANT CITY OF PHILADELPHIAS MOTION TO DISMISS

Defendant City of Philadelphia files this Memorandum of Law in Support of its Motion

to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6).

I. INTRODUCTION AND FACTUAL SUMMARYPlaintiff is a restaurant and bar operating at 624-628 N. Front St., Philadelphia, PA.

Compl. 13. Plaintiff is located in the Northern Liberties section of Philadelphia. Id. Plaintiff

obtained a use permit for a restaurant and bar on the first and second floors of the building, and

accessory live entertainment with D.J. dancing and stage shows also on the first and second

floors. Id. 20; see also Compl., Ex. A. The use permit obtained by Plaintiff requires that

Plaintiff comply with all other provisions of the Philadelphia Code and City Ordinances, whether

or not such provisions or ordinances are specified in the use permit. Compl., Ex. A. The

Philadelphia Code requires that establishments seating in excess of fifty patrons which provide

social entertainment (defined as dancing, DJs, live music or other similar activities) at one or

more times during the year obtain a special assembly license. Philadelphia Code 9-703(1)-



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(2); see also Compl., Ex. E. Plaintiff is an establishment which is required to obtain a special

assembly license. Compl. 32; Philadelphia Code 9-703.

The Philadelphia Code 9-703 specifically requires that the City take into consideration

community concerns prior to issuing special assembly licenses. Philadelphia Code 9-

701(2)(b)(4)(c). Plaintiffs Complaint is replete with allegations that the Northern Liberties

Neighborhood Association and the Northern Liberties community as a whole oppose Plaintiff

providing social entertainment. See e.g. Compl. 36-40. As a result of this opposition,

Plaintiff was denied a special assembly license. Id. 37.

Plaintiff now alleges that the City of Philadelphias actions in refusing to issue a special

assembly license violated its substantive due process rights,1

protected by the Fourteenth

Amendment. Id. 50-64. To state a substantive due process claim, Plaintiff must allege facts

showing that (1) the government has deprived the owner of a fundamental interest under the

Fourteenth Amendment; and (2) the governmentsaction shocks the conscience. Reno v.

Flores, 507 U.S. 292, 301-02 (1993); Highway Materials, Inc. v. Whitemarsh Twp., 386

Fed.Appx. 251, 258 (3d Cir. 2010); Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176,

190 (3d Cir. 2009); Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). Plaintiff has failed to

allege facts sufficient to establish that the City of Philadelphias actions were sufficient to shock

the conscience; therefore, Plaintiffs claim against the City of Philadelphia must be dismissed.

Additionally, Plaintiffs tortious interference with business claim, a species of intentional

tort, is barred by the Political Subdivision Tort Claims Act. See Panas v. City of Philadelphia,

871 F. Supp. 2d 370, 376 (E.D. Pa. May 14, 2012) (citing DeBellis v. Kulp, 166 F. Supp. 2d 255,

277-78 (E.D. Pa. Sept. 10, 2001))

1 Presumably Plaintiff argues that its substantive due process rights were violated, rather than its procedural due

process rights, as Plaintiff received a review of the original license denial by the Board of License and Inspection

review, and an opportunity to appeal that review to the Court of Common Pleas. Compl. Ex. E.



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II. STANDARD OF REVIEWTo survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). In deciding a motion to dismiss, a court must determine whether the

complaint pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. (citing Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 556 (2007)). The plausibility standard is not akin to a probability requirement, but

it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a

complaint pleads facts that are merely consistent with a defendants liability, it stops short of

the line between possibility and plausibility of entitlement to relief. Id.

The tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions. Id. at 678. Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice. Id. Further, only a

complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679.

III. ARGUMENTA. PLAINTIFFS SUBSTANTIVE DUE PROCESS CLAIM FAILS AS A

MATTER OF LAW BECAUSE PLAINTIFF HAS FAILED TO ALLEGE

THAT THE CITY OF PHILADELPHIA ENGAGED IN CONSCIOUS-

SHOCKING BEHAVIOR IN DENYING PLAINTIFF A SPECIAL

ASSEMBLY LICENSE

To state a viable substantive due process claim, Plaintiff must allege facts showing that

(1) the government has deprived the owner of an interest fundamental under the Fourteenth

Amendment; and (2) the governments action shocks the conscience. Flores, 507 U.S. at 301-

02; Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed.Appx. at 258; Chambers, 587 F.3d at

190; Chainey, 523 F.3d at 219.



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The use and enjoyment of real property is a fundamental right protected under the

Fourteenth Amendment substantive due process clause. See DeBlasio v. Zoning Bd. of

Adjustment, 53 F.3d 592, 601 (3d Cir. 1995); see also Independent Enterprises, Inc. v. Pittsburgh

Water and Sewer Authority, 103 F.3d 1165, 1179 n.12 (3d Cir. 1997). For the purposes of this

motion only, Defendant City of Philadelphia concedes that the denial of a special assembly

license implicates this fundamental right.

However, even though Plaintiff has arguably alleged the violation of a right protected by

the Fourteenth Amendment substantive due process clause, to prevail on its claim, Plaintiff must

also show that the City of Philadelphias denial of a special assembly license in these

circumstances shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846, 849

(1998); Benn v. Universal Health Sys., 371 F.3d 165, 174 (3d Cir. 2004) (In a due process

challenge to executive action, the threshold question is whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience.) Whether government conduct shocks the conscience is a matter of law for the

courts to decide. Id. In the context of land-use decisions, governmental conduct can be said to

shock the contemporary conscience when it is not rationally related to a legitimate governmental

purpose. M&M Stone Co. v. Pennsylvania, 2008 U.S. Dist. LEXIS 76050, at *68-69 (E.D. Pa.

Sept. 29, 2008) (citing Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582,

595 (3d. Cir. 1995).

Defendant City of Philadelphias actions here are clearly related to a legitimate governmental

purposebalancing community stakeholder interests in the development of that community.

Philadelphia Code 9-703 specifically requires that the City take into consideration community



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concerns prior to issuing special assembly licenses.2

Philadelphia Code 9-701(2)(b)(4)(c). As

Plaintiff has pointed out at length in its Complaint, the Northern Liberties Neighborhood

Association, and other Northern Liberties community members are vehemently opposed to

Plaintiff providing social entertainment. See e.g. Compl. 36-40. Taking into account

community interests such as these is an essential function of a democratic government.

Moreover, Plaintiff appears to suggest that the Citys denial of a special assembly license

after Plaintiff invested extensive amounts of money to remodel Plaintiffs premises contributes to

the constitutional arbitrariness of the denial. This suggestion ignores the fact that Plaintiff was

on notice from the date its original use permit was granted that it would have to comply with all

Philadelphia Code provisions, including the provision requiring a special assembly license. See

Compl., Ex. A. That Plaintiff failed to obtain the necessary requirements for a special assembly

license after being on notice that it would be required to obtain such a license does not transform

that denial from an ordinary democratic result into an arbitrary and capricious constitutional

violation.

Therefore,because the Citys denial of a special assembly license was made in

accordance with the provisions of the statute governing special assembly licenses, the Citys

denial of that license cannot be said to be arbitrary in the constitutional sense such that it

shocks the contemporary conscience. M&M Stone Co., 2008 U.S. Dist. LEXIS 76050, at *69.

Accordingly, Plaintiffs substantive due process claim against the City of Philadelphia must be

dismissed.

2Although Plaintiff states that it has complied with all statutory requirements necessary to obtain annual renewal of

a special assembly license, id. 64, this statement is a legal conclusion, and thus this Court is not required to treat it

as true for the purposes of this motion. Iqbal, 556 U.S. at 678. It is clearly apparent Plaintiff has not complied with

all statutory requirements necessary to obtain a special assembly license, as the community stakeholders and the

Philadelphia Police Department are opposed to the granting of such a license. See Philadelphia Code 9-

701(2)(b)(4)(c).



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B. PLAINTIFFS TORTIOUS INTERFERENCE WITH BUSINESS CLAIMAGAINST THE CITY OF PHILADELPHIA IS BARRED BY THE

POLITICAL SUBDIVISION TORT CLAIMS ACT

In addition to constitutional claims, Plaintiff also alleges that the City of Philadelphia is

liable for engaging in tortious interference with business. Compl. 232-234. Defendant City

of Philadelphia is unaware of any claim for tortious interference with business under

Pennsylvania law. Pennsylvania law does, however, support claims for intentional tortious

interference with prospective or existing contractual relations. Phillips v. Selig, 959 A.2d 420,

428-29 (Pa. Super. 2008)(citing Restatement (Second) of Torts 766 and 766B). These claims

are intentional torts. Id. The tort liability of the City of Philadelphia is governed by the Political

Subdivision Tort Claims Act. The Tort Claims Act provides immunity for the City of

Philadelphia from intentional torts. Panas v. City of Philadelphia, 871 F. Supp. 2d 370, 376

(E.D. Pa. May 14, 2012) (citing DeBellis v. Kulp, 166 F. Supp. 2d 255, 277-78 (E.D. Pa. Sept.

10, 2001)). Therefore, summary judgment should be granted for the City of Philadelphia as to

Plaintiffs tortious interference with business claim.

VI. CONCLUSION

Defendant, City of Philadelphia, respectfully requests that this Honorable Court grant this

Motion and dismiss Plaintiffs claims against it with prejudice.

Respectfully Submitted,


Christopher H. Rider, Esquire

Assistant City SolicitorPa. Attorney ID No. 307265






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(215) 683-5444

[email protected]



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MARC STEIN, :

:Plaintiff :

:

v. : Civil Action

: No. 13-4644


:

Defendants. :

CERTIFICATE OF SERVICE

I hereby certify that on the date below, the foregoing Defendants Motion to Dismiss and

Memorandum of Law has been filed on ECF and is available for viewing and downloading.


Christopher H. Rider, Esquire

Assistant City SolicitorPa. Attorney ID No. 307265




(215) 683-5444

[email protected]


Documents

Stein v. City of Philadelphia - Motion To Dismiss