OLD YORK LLC et al v. TOWNSHIP OF ABINGTON, et. al.

Filing 26

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 2/16/17. 2/16/17 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OLD YORK LLC
Plaintiff
v.
TOWNSHIP OF ABINGTON, et al.
Defendants

:
:
:
:
:
:
:

CIVIL ACTION
NO. 16-1731

NITZA I. QUIÑONES ALEJANDRO, J.

FEBRUARY 16, 2017

MEMORANDUM OPINION
INTRODUCTION
Presently before this Court is a motion to dismiss, or alternatively for summary judgment,
[ECF 21], filed by Defendants Township of Abington (“Township”) and Kenneth J. Clark
(“Defendant Clark”) (collectively, “Defendants”), in which they seek dismissal of all of the
federal and state claims asserted against them by Plaintiff Old York LLC (“Plaintiff”). Plaintiff
has opposed the motion. [ECF 24]. The issues raised in the motion to dismiss/for summary
judgment have been fully briefed by the parties and are now ripe for disposition. For the reasons
stated herein, Defendants’ motion is granted, in part, and denied, in part.
BACKGROUND
On April 11, 2016, Plaintiff filed its initial complaint against Defendants. [ECF 1].
Following the filing of a motion to dismiss and the parties’ respective briefing thereon, Plaintiff
filed a motion for leave to file an amended complaint, which this Court granted. [ECF 17-18].
On September 22, 2016, Plaintiff filed an amended complaint asserting civil rights claims based
on Defendants’ alleged violation of Plaintiff’s due process and equal protection rights under the
Fourteenth Amendment of the United States Constitution and Article I, Section 26 of the

Pennsylvania Constitution, as well as state law claims for intentional interference with
contractual relations, defamation, and trade disparagement. [ECF 19].
On October 7, 2016, Defendants filed the underlying motion to dismiss, or alternatively,
for summary judgment. [ECF 21].1 When ruling on Defendants’ motion to dismiss, this Court
must accept, as true, all relevant and pertinent factual allegations in the amended complaint and
construe these facts in the light most favorable to Plaintiff. Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). These factual allegations are as follows:
Plaintiff is the owner of a multi-story apartment complex in Abington,
Pennsylvania, formerly known as the Colonade and now known as 100 York (the
“Colonade”). (Amend. Compl. Introduction). The Colonade consists of two
high-rise residential buildings, the Estate and the Manor buildings. (Id. at ¶¶910). Plaintiff is engaged in a $26 million multi-stage rehabilitation and
renovation project at the Colonade. (Id. at ¶11). Renovations are complete in all
of the apartment units in the Estate building, and the Township has issued 286
“Certificates of Occupancy” for those units. (Id. at ¶75). Plaintiff alleges that
despite issuing Plaintiff these “Certificates of Occupancy” for apartment units in
the Colonade, the Township has subsequently taken the wrongful position that the
units may not be occupied unless and until Plaintiff is issued “Use and Occupancy
Permits,” which the Township suggests are different than the admittedly issued
Certificates of Occupancy.
Plaintiff contends that its dispute with the Township began in 2014, when
Plaintiff attempted to begin the renovation of the Colonade. (Id. at ¶14). At that
time, Defendant Clark, who is the fire marshal for Abington Township, demanded
that Plaintiff install sprinklers throughout both buildings and/or substantially
upgrade its fire alarm system, otherwise he would not approve the issuance of
Certificates of Occupancy for the renovated apartment units. (Id. at ¶16).
Plaintiff disagreed that such measures were required or necessary. (Id. at ¶¶1718). Defendant Clark threatened Plaintiff with various enforcement actions unless
Plaintiff capitulated to his demands. (Id. at ¶22).
Ultimately, Plaintiff and the Township reached an agreement which was
memorialized in a Memorandum of Understanding (the “MOU”), on November 4,
1

Though Defendants filed their underlying motion as both a motion to dismiss and, in the
alternative, a motion for summary judgment, this Court will consider it only under Rule 12(b)(6), and not
as a motion for summary judgment. Though Rule 12(d) permits a court to convert a motion to dismiss
into one for summary judgment, this Court declines to do so here, where Plaintiff has not yet been given
an opportunity to conduct discovery to challenge Defendants’ proffered evidence.
2

2014. (Id. at ¶25). The MOU describes its purpose as: “[t]he parties . . . have
entered into this MOU to resolve and settle ongoing disputes regarding code and
permit requirements for the upgrades and improvements which Old York plans to
undertake for the Colonade apartment complex.” (Id. at ¶26). As part of the
parties’ agreement, Plaintiff agreed to exceed Code requirements by upgrading
the Colonade’s fire alarm system. (Id. at ¶29). The MOU sets forth the scope of
the work to be undertaken at the Colonade and all steps that Plaintiff must take
from start to finish in order to occupy the Colonade. (Id. at ¶¶26-32).
Since the parties entered into the MOU, the Township and Defendant
Clark have continued to insist that Plaintiff meet other demands that Plaintiff
contends are not required by any applicable code or the MOU. (Id. at ¶¶33- 48).
In the spirit of cooperation, Plaintiff has met some of Defendant Clark’s demands,
but Plaintiff’s efforts to placate Defendant Clark have been unsuccessful. (Id. at
¶¶42-48).
On February 18, 2016, and again on March 30, 2016, Plaintiff’s counsel
advised the Township’s solicitor by phone that Plaintiff was going to move
residents into the Colonade. (Id. at ¶89). The solicitor did not advise that the
building could not be occupied, or that any additional permit or certificate was
required for occupancy. (Id.).
On April 7, 2016, Defendant Clark responded to a call at the Colonade
made by a resident who smelled smoke. (Id. at ¶49). Plaintiff alleges that
Defendant Clark intentionally misrepresented to the tenant that the Colonade did
not have any Certificates of Occupancy, including for the unit in which the
resident was living. (Id. at ¶50). This statement was not true since the Township
had issued over 280 Certificates of Occupancy for the Colonade. (Id.).
Defendant Clark also misrepresented that the tenant was not allowed to live in the
Colonade, (id. at ¶51), and demanded that the tenant leave the building, which he
characterized as unsafe. (Id. at ¶52). Defendant Clark escorted the tenant out of
the building. (Id. at ¶53). The next day, Defendant Clark told the resident that “it
will be a long time” before occupancy is permitted at the Colonade, and she
should therefore “find somewhere else to live.” (Id. at ¶57). As a result of
Defendant Clark’s wrongful eviction of the tenant, Plaintiff paid for a hotel room
and other expenses for the resident for a month until she eventually terminated her
lease and moved elsewhere. (Id. at ¶58). Defendant Clark issued a report
regarding the April 7, 2016 fire at the Colonade, which Plaintiff alleges contained
several false statements. (Id. at ¶61).
On April 8, 2016, the Township’s zoning officer, Mark Penecale, sent
Plaintiff a letter indicating that no unit in the Colonade is “permitted to be
occupied until such time that a Use & Occupancy Certificate has been issued by
the Township of Abington.” (Id. at ¶74). Mr. Penecale pointed to Section 1105
of the Zoning Ordinance of the Township of Abington as requiring such a “Use
and Occupancy Certificate.” (Id.). Plaintiff contends Mr. Penecale’s position is
3

wrong and contrary to previous representations of the Township. (Id. at ¶75). In
particular, Plaintiff points to the Township’s issuance of Certificates of
Occupancy for 280 units. (Id.). According to Plaintiff, this was the first time the
Township had ever suggested the need for a Use and Occupancy Certificate, in
addition to the already issued Certificates of Occupancy. (Id.). Plaintiff also
argues that Section 1105, on which Defendants rely, does not apply to Plaintiff’s
renovation project. (Id.).
After Plaintiff filed this action, its counsel conferred with the Township’s
counsel about what issues, if any, the Township truly believed needed to be
addressed prior to occupancy. (Id. at ¶91). The Township initially identified ten
issues which were later narrowed to two after consulting with its Code expert,
Michael Perrone, who is also a Fire Marshal. (Id. at ¶¶92-94). The Township’s
positions on all ten issues, as of April 26, 2016, are memorialized in a document
titled the Open-Issues List. (Id. at ¶¶93-94). Plaintiff alleges that as of April 26,
2016, the parties reached agreement that none of the ten issues identified by the
Township were barriers to occupancy. (Id.). On May 2, 2016, the Township
submitted a filing in this action contradicting the positions it and its expert had
taken with the respect to the Open-Issues List. (Id. at ¶101).
On June 3, 2016, Plaintiff filed a mandamus action against the Township
in the Montgomery County Court of Common Pleas. (Id. at ¶103). In that case,
Plaintiff filed an emergency motion for a preliminary injunction on June 6, 2016.
(Id.). To resolve the emergency motion, the parties agreed to a consent order
permitting occupancy, which was entered on August 3, 2016. (Id. at ¶104).
According to Plaintiff, this consent order is nearly identical to the Open-Issues
List in substance, thus, showing that the Township acted in bad faith when it
reneged on the Open-Issues List in April 2016. (Id. at ¶105).
Plaintiff also alleges that the Township has treated Plaintiff differently
than it treated a similarly situated apartment, the Plaza Apartments (the “Plaza”).
(Id. at ¶116). Plaintiff alleges that the Colonade and the Plaza are similar in that:
they are both high-rise apartment complexes in Abington Township; both
underwent recent extensive multi-million dollar renovations; neither have
sprinkler systems installed through the complexes; and both are subject to the
same Codes and Township ordinances regulating occupancy and construction
requirements. (Id. at ¶111). Despite these similarities, Plaintiff alleges that the
Township imposed a number of requirements and restrictions that it did not
impose on the Plaza. (Id. at ¶¶121-122).
LEGAL STANDARD
A court may grant a motion to dismiss an action under Federal Rule of Civil Procedure
12(b)(6) if the complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ.
4

P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a court must “accept all of the
complaint’s well-pleaded facts as true, but may disregard any legal conclusions.” Fowler, 578
F.3d at 210-11. The court must determine “whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege
the plaintiff’s entitlement to relief: it must “show such an entitlement with its facts.” Id.
(citations omitted).
To determine the sufficiency of a complaint, “a court . . . must take three steps.”
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must “tak[e]
note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675).
Second, the court must identify allegations that are merely legal conclusions “because they . . .
are not entitled to the assumption of truth.” Id. While a complaint need not assert detailed
factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Third, a court should assume the
veracity of all well-pleaded factual allegations and “then determine whether they plausibly give
rise to an entitlement to relief.” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679).
A court may determine that a complaint’s factual allegations are plausible if the court is
able “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “But
where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)) (alterations in original). In other words,
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”

5

Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss under Rule 12(b)(6), “a plaintiff
must allege facts sufficient to ‘nudge [his] claims across the line from conceivable to plausible.’”
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at
570). “Although the plausibility standard ‘does not impose a probability requirement,’ it does
require a pleading to show ‘more than a sheer possibility that a defendant has acted unlawfully.’”
Connelly, 809 F.3d at 786 (citations omitted). Reviewing the plausibility of the complaint is a
“context-specific” inquiry and requires a court to “draw on its experience and common sense.”
Iqbal, 556 U.S. at 663-64.
DISCUSSION
As noted, Plaintiff asserts that Defendants violated Plaintiff’s substantive due process and
equal protection rights guaranteed by the Fourteenth Amendment of the United States
Constitution and Article 1, §26 of the Pennsylvania Constitution, as well as state law claims for
intentional interference with contractual relations, defamation and trade disparagement. In their
motion to dismiss, Defendants argue that the claims should be dismissed because Plaintiff has
failed to allege facts sufficient to state a claim. Plaintiff’s claims and Defendants’ arguments in
opposition thereto are addressed infra.
Substantive Due Process Claims
At Counts I and II of the amended complaint, Plaintiff purports to assert claims for the
violation of its substantive due process rights under the United States and the Pennsylvania
Constitutions. Defendants have moved to dismiss these substantive due process claims on the

6

ground that Plaintiff has not alleged facts sufficient to meet the requisite “shocks the conscience”
standard. This Court agrees.2
The Due Process Clause of the Fourteenth Amendment declares that no state shall
“deprive any person of life, liberty, or property, without due process of law.” The clause
“contains a substantive component that bars arbitrary, wrongful government action regardless of
the fairness of the procedures used to implement them.” MFS, Inc. v. DiLazaro, 771 F. Supp.2d
382, 438 (E.D. Pa. 2011) (quoting Zinermon v. Burch, 494 U.S. 113 (1990)). To state a
substantive due process claim, a plaintiff must adequately plead that (1) the property interest at
issue is protected by the Fourteenth Amendment, and (2) the plaintiff was deprived of that
interest by conduct of a governmental official or entity which “shocks the conscience.” Chainey
v. Street, 523 F.3d 200, 219 (3d Cir. 2008); see also United Artists Theatre Cir., Inc. v. Twp. of
Warrington, 316 F.3d 392, 399-401 (3d Cir. 2003).
Only “the most egregious official conduct” can meet the “shocks the conscience”
standard. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004). Government actions
that are merely taken for an “improper purpose” or in “bad faith” do not meet the requisite
standard. Johnston v. Dauphin Borough, 2006 WL 1410766, at *6 (M.D. Pa. May 22, 2006)
(citing United Artists, 316 F.3d at 400-02). “Unless the evidence indicates that the challenged
decision is completely unrelated in any way to a rational [governmental] goal, there is no
violation of substantive due process.” Corneal v. Jackson Twp., Huntingdon Cnty., Pa., 313 F.
Supp.2d 457, 466 (M.D. Pa. 2003). In other words, where the governmental entity may point to
some rational goal for its conduct, there is no due process violation. Id. In the land use context,
The parties agree that Plaintiff’s state and federal due process and equal protection claims are
subject to the same legal analysis. See Kramer v. Workers’ Comp. Appeal Bd., 883 A.2d 518, 532 (Pa
2005); Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 908 F. Supp.2d 597, 618 (M.D. Pa.
2012).
2

7

the shocks the conscience standard is sufficiently high “to avoid converting federal courts into
super zoning tribunals.” Eichenlaub, 385 F.3d at 285; see also United Artists, 316 F.3d at 402
(recognizing that the shocks the conscience standard “prevents [the Court] from being cast in the
role of a zoning board of appeals”).
Here, Plaintiff’s substantive due process claims are governed by the Eichenlaub decision.
“In Eichenlaub, the Court of Appeals held that allegations of inconsistent application of zoning
requirements, unnecessary inspections, delaying permits and approvals, improperly increasing
tax assessments, and ‘malign[ing] and muzzl[ing]’ a property owner were not enough to shock
the conscience, particularly where ‘[t]he local officials are not accused of seeking to hamper
development in order to interfere with otherwise constitutionally protected activity at the project
site, or because of some bias against an ethnic group.’” Vurimindi v. City of Philadelphia, 521 F.
App’x 62, 65 (3d Cir. 2013) (quoting Eichenlaub, 385 F.3d at 286). In affirming the district
court’s finding that the alleged conduct did not shock the conscience, the Eichenlaub Court also
noted the absence of any allegations of corruption or self-dealing. Eichenlaub, 385 F.3d at 286.
Like the claims in Eichenlaub, Plaintiff’s claims here are of the kind frequently at issue in
zoning and land use disputes. As in Eichenlaub, Plaintiff merely complains of Defendants’
alleged incorrect, inconsistent application of various zoning laws and regulations. Plaintiff does
not allege any corruption or self-dealing, racial or ethnic bias, or an effort by Defendants to
interfere with otherwise constitutionally protected activity. As such, like the conduct at issue in
Eichenlaub, the conduct alleged here does not meet the shocks the conscience standard.
Accordingly, Plaintiff’s substantive due process claims are dismissed. Cf., Perano v. Twp. of
Tilden, 423 F. App’x 234, 238 (3d Cir. 2011) (affirming trial court’s granting of motion to

8

dismiss where plaintiff’s complaints amounted to mere disagreement with township defendant’s
application of land use regulations).
Equal Protection Claims Against the Township
At Counts I and II, Plaintiff also asserts claims for the violation of its equal protection
rights. Specifically, Plaintiff contends that Defendants violated Plaintiff’s equal protection rights
by treating it differently than Defendants treated another similarly situated entity/apartment
building with respect to inspections, permits, etc. In their motion to dismiss, Defendants argue
that Plaintiff has failed to allege facts sufficient to meet each pleading requirement of an equal
protection claim against the Township.3 This Court disagrees.
The Equal Protection Clause of the Fourteenth Amendment prohibits a state from
denying “any person within its jurisdiction the equal protection of the laws.” U.S. Const.
Amend. XIV §1. To state an equal protection claim under a class of one theory (as Plaintiff
purports to do here), a plaintiff must allege facts to show that the plaintiff was “intentionally
treated differently from others similarly situated and that there [was] no rational basis for the
difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Hill
v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). “To be ‘similarly situated,’ parties
must be ‘alike in all relevant aspects.’” Perano v. Twp. of Tilden, 423 F. App’x 234, 238 (3d Cir.
2011) (quoting Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008)).
Here, Plaintiff contends that the Township treated Plaintiff differently than another
similarly situated apartment building, specifically, the Plaza, without any rational basis. With
respect to the two buildings’ similarities, Plaintiff alleges that: both are high-rise apartment

3

Notably, Defendants limit this argument to the equal protection claims asserted against the
Township only. As such, this Court will similarly limit its analysis to the equal protection claims against
the Township.
9

buildings within Abington Township; both have undergone recent extensive multi-million dollar
renovations which involved upgrading and modernizing the apartment units; neither building has
sprinkler systems installed throughout the complexes; and both are subject to the same codes and
Township ordinances regulating occupancy and construction requirements. (Am. Compl. ¶111).
Despite these similarities, Plaintiff alleges that the Township treated the two entities differently
by requiring far more of Plaintiff than of the Plaza, with respect to meeting numerous zoning,
construction and occupancy requirements. (Id. at ¶¶116-122). While the Township seeks to
refute these allegations with an attached declaration, the facts alleged in the amended complaint,
and accepted as true, are sufficient to sustain Plaintiff’s equal protection claims against the
Township. In addition, whether the Township had a rational basis for its alleged different
treatment is an issue of fact that cannot be resolved at the motion to dismiss stage. Rittenhouse
Entm’t, Inc. v. City of Wilkes-Barre, 861 F. Supp. 2d 470, 481 (M.D. Pa. 2012). As such,
Defendants’ motion to dismiss Plaintiff’s equal protection claims against the Township is denied.
Qualified Immunity for Defendant Clark
Defendants argue that Defendant Clark is entitled to qualified immunity on Plaintiff’s
constitutional claims against him.4 Qualified immunity is an affirmative defense that shields
government officials from personal liability for civil damages. Lane v. Franks, 134 S. Ct. 2369,
2381 (2014). “Under this doctrine, courts may not award damages against a government official
in his personal capacity unless ‘the official violated a statutory or constitutional right,’ and ‘the
right was ‘clearly established’ at the time of the challenged conduct.’” Id. (citations omitted).

As set forth above, this Court has dismissed Plaintiff’s due process claims against all Defendants,
but not Plaintiff’s equal protection claims against the Township and Defendant Clark. As such, this Court
will limit its analysis of the qualified immunity defense to the equal protection claim against Defendant
Clark.
4

10

When evaluating a claim of qualified immunity, district courts must engage in a twopronged inquiry. First, the court must determine whether the allegations, “[t]aken in the light
most favorable to the party asserting the injury . . . show the officer’s conduct violated a [federal]
right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, the court must determine “whether
the law was clearly established at the time of the violation.” Kelly v. Borough of Carlisle, 622
F.3d 248, 253 (3d Cir. 2010). Under this second prong, the “focus is on whether the law, at the
time of the challenged incident, is sufficiently clear to ‘provide[] fair warning to the defendants
that their alleged conduct was unconstitutional.’” Muth v. Woodring, 2016 WL 6694546, at *2
(3d Cir. Nov. 15, 2016) (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)). It is the
defendant’s burden to establish that he is entitled to qualified immunity. Kopec v. Tate, 361 F.3d
772, 776 (3d Cir. 2004).
In their motion to dismiss, Defendants argue that Defendant Clark is entitled to qualified
immunity because Plaintiff has failed to allege facts sufficient to establish that Defendant Clark
violated a constitutional right to equal protection. In its response, Plaintiff premises its argument
on the same facts alleged in support of its due process claim against Defendant Clark; a claim
dismissed above. Plaintiff cites no facts that could support its remaining equal protection claim
against Defendant Clark. Indeed, Plaintiff’s amended complaint contains no facts to support an
equal protection claim against Defendant Clark. Rather, all of the facts alleged with respect to
the alleged violation of Plaintiff’s equal protection rights are directed at the actions and conduct
of the “Township.” (See Amend. Comp. ¶¶116-125). Plaintiff has not alleged any facts to
support any disparate treatment by Defendant Clark. While this Court’s ruling is not on a
qualified immunity defense, because Plaintiff has failed to allege any facts to support a violation

11

of its equal protection as to Defendant Clark, Plaintiff’s equal protection claim against Defendant
Clark is dismissed.
State Law Claims against Township and Defendant Clark, in his Official Capacity
In its amended complaint, Plaintiff asserts the following state law tort claims against both
Defendants: intentional interference with contractual relations; defamation; and trade
disparagement. In their motion to dismiss, Defendants argue that they are immune from liability
with respect to each of these state law intentional tort claims under the Pennsylvania Political
Subdivision Tort Claims Act (the “Act”), 42 Pa. C.S. 8541, et seq. Plaintiff does not respond to
this argument. Regardless, subject to limited exceptions not implicated here, the Act grants local
agencies, and their employees, when sued in their official capacities, absolute immunity against
intentional tort claims. Walker v. North Wales Borough, 395 F. Supp.2d 219, 230 (E.D. Pa.
2005). As such, all of Plaintiff’s state law tort claims against the Township and Defendant Clark
in his official capacity (Counts III through V) are dismissed.
State Law claims against Defendant Clark, in his Individual Capacity
Plaintiff also asserts its state law tort claims against Defendant Clark, in his individual
capacity. Each of the state law claims against Defendant Clark is premised upon the same
alleged facts:

that during the night of April 7-8, 2016, Defendant Clark intentionally

misrepresented to Plaintiff’s tenant, Erica Johns, that the Colonade did not have Certificates of
Occupancy when, in fact, it did, causing her to terminate her lease. (Amend. Compl. ¶¶159, 165,
172). Defendants argue that these claims as asserted against Defendant Clark fail because: (1)
Defendant Clark’s statements were true; (2) Defendant Clark lacked the intent to harm Plaintiff;
(3) Plaintiff has not alleged special damages; and (4) Defendant Clark’s statements are subject to
various privileges. This Court finds that each of these defenses, however, is subject to one or

12

more disputed issues of fact, which must await later consideration. As such, Defendants’ motion
to dismiss these state law claims asserted against Defendant Clark, in his individual capacity, is
denied.
CONCLUSION
For the reasons stated herein, Defendants’ motion to dismiss is granted, in part, and
denied, in part, leaving the following claims for further proceedings: Plaintiff’s equal protection
claims against the Township and the state law tort claims asserted against Defendant Clark in his
individual capacity. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

13