Kapish v. Advanced Code Group et al

Filing 82

MEMORANDUM (Order to follow as separate docket entry) re 53 MOTION for Summary Judgment Signed by Honorable James M. Munley on 4/16/18. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVNIA
CHARLES KAPISH, individually and :
No. 3:15cv278
t/d/b/a KAPS CONSTRUCTION,
:
Plaintiff
:
(Judge Munley)
:
v.
:
:
ADVANCED CODE GROUP,
:
JEFFREY REMAS, and
:
SHAWN BOLLES,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Charles Kapish, individually and trading and doing business as
Kaps Construction (hereinafter “plaintiff”), asserts federal constitutional rights
claims arising from his construction of a new home located in Pittston Township,
Pennsylvania. Plaintiff asserts that Defendants, Advanced Code Group, Jeffrey
Remas, and Shawn Bolles (hereinafter collectively referred to as “defendants”),
acting as building code inspectors on Pittston Township’s behalf, applied unfair
and unequal interpretations of the local building code, causing delays and
additional expenses to the completion of the new home.
Before the court for disposition is defendants’ motion for summary
judgment regarding Count I of the plaintiff’s complaint, filed pursuant to Rule
56(b) of the Federal Rules of Civil Procedure. The parties have briefed their
respective positions and the instant motion is ripe for disposition.

Background1
In 2011, Eric and Kristin Endres 2 contracted with Sennett Enterprises
(hereinafter “Sennett”) to construct a home in Pittston Township, Pennsylvania
(hereinafter “the Endres home”). (Doc. 1, Compl. ¶ 16). As the original
contractor, Sennett drafted plan drawings, blueprints and specifications for the
Endres home. (Id.) Defendant Advanced Code Group reviewed Sennett’s plans
and issued the necessary building permits. (Id. ¶ 17).
Subsequent to Sennett securing the building permits, Eric and Kristin
Endres ended their business relationship with Sennett and engaged plaintiff to
construct their new home for $311,375.00, exclusive of any add-on change
orders. (Id. ¶¶ 15, 18). In constructing the Enders home, plaintiff used Sennett’s
plans and building permits. (Id. ¶¶ 15-18, 20).
On November 12, 2012, Defendant Bolles performed a framing inspection
at the Endres home. (Id. ¶ 22). Bolles determined that the Endres home had
inadequate frames, and he directed plaintiff to submit engineering plans for the
frames. (Id.) Bolles, however, did not issue a stop work order. (Id.) Because
Bolles never issued a stop work order, plaintiff continued to rough-in electrical
and plumbing. (Id.)

1

For this brief background section, we will cite to plaintiff’s complaint. Where
appropriate in the discussion section we will cite to record evidence.
2
Eric and Kristen Endres are not parties to this litigation.
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On December 19, 2012, defendants informed plaintiff for the first time that
they had shut down construction of the Endres home in November 2012,
following the failed framing inspection. (Id. ¶ 26). In response, plaintiff contacted
Terry Best, Pittston Township Code Enforcement and Zoning Officer, and
requested a hearing before the Pittston Township zoning board. (Id. ¶ 27).
Plaintiff requested the zoning board review defendants’ subjective interpretations
of the local building code, which had caused a complete shutdown of all work on
the Endres home. (Id.) A week later, Terry Best advised plaintiff that the local
zoning board did not have the authority to override defendants’ inspections and
stop work order. (Id. ¶ 28).
On January 14, 2013, plaintiff traveled to the Pittston zoning office and
spoke in-person with Terry Best. (Id. ¶ 29). While meeting with plaintiff, Best
telephoned defendants and requested specific steps plaintiff must take to
continue and complete the Endres home. (Id.) Defendants instructed plaintiff to
correct the following four (4) deficiencies: “(a) Steel beam to wood (drawing
variation); (b) Dimensional lumber to engineered lumber; (c) Roof system framed
L side front, made hip valleys & was not on plans, point loads not supported; and
(d) Calculations needed . . . minimal specs needed to see if designed . . . if
engineer say [sic] it will work & sign off on it.” (Id. ¶ 30).

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Shortly thereafter, plaintiff hired CECO Associates, Inc., to perform
engineering services and inspections of the Endres home regarding defendants’
four (4) deficiencies. (Id. ¶ 31). On January 24, 2013, CECO issued a detailed
report stating that the structural framing members of the Endres home, including
the timber for the first floor joists, first floor joists themselves and the LVL joists,
are adequate and “this construction appears to follow industry standards.” (Id. ¶
32). Defendants, however, did not sign off on CECO’s report. (Id. ¶¶ 33-34).
Plaintiff alleges defendants spent the next ten (10) months “fabricating”
additional issues through the use of “unfair and unequal subjective interpretations
of the [local] building code” causing plaintiff to incur additional expenditures and
delays. (Id. ¶¶ 34-37). Plaintiff further asserts that during this ten (10) month
period, defendants treated other contractors performing work with Pittston
Township more favorably. (Id. ¶ 38). Specifically, defendants allegedly failed to
hold other contractors to the same subjective zoning standards defendants
applied to plaintiff. (Id.) Eventually plaintiff hired a second engineer, David W.
Johns, P.E. (hereinafter referred to as “Johns”), who prepared an extensive
report dated November 1, 2017. (Docs. 63-65). Defendants did not sign off on
the Johns report.
Based on these factual allegations, plaintiff filed a three-count complaint
pursuant to 42 U.S.C. § 1983 (hereinafter “section 1983”) on February 8, 2015.
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The complaint asserts the following three causes of action: Count I, Equal
Protection; Count II, Substantive Due Process; and Count III, Procedural Due
Process. (Doc. 1). On April 24, 2015, defendants filed a motion to dismiss all
counts in plaintiff’s complaint (Doc. 11) pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. On September 1, 2015 we granted defendants’ motion
to dismiss Count II and Count III. (See Doc. 21). On October 13, 2017
defendants filed a motion for summary judgment (Doc. 53) regarding Count I of
the plaintiff’s complaint, pursuant to Rule 56(b) of the Federal Rules of Civil
Procedure, bringing the case to its current posture.
Jurisdiction
The court has federal question jurisdiction over this civil rights action
brought under section 1983. See 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”); 28 U.S.C. §§ 1343(a)(3), (4) (granting district
courts jurisdiction over civil actions brought to redress deprivations of
constitutional or statutory rights by way of damages or equitable relief).
Legal standard
Granting summary judgment is proper “‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
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moving party is entitled to judgment as a matter of law.’” See Knabe v. Boury,
114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED. R. CIV. P. 56(c)). “[T]his
standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Id.
In considering a motion for summary judgment, the court must examine
the facts in the light most favorable to the party opposing the motion. Int’l. Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the
suit under the governing law. Id. Where the non-moving party will bear the
burden of proof at trial, the party moving for summary judgment may meet its
burden by showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving
party satisfies its burden, the burden then shifts to the nonmoving party, who
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must go beyond its pleadings, and designate specific facts by the use of
affidavits, depositions, admissions, or answers to interrogatories showing that
there is a genuine issue for trial. Id. at 324.
As noted above, defendants argue that we should grant summary
judgement on the sole remaining count in plaintiff’s complaint, equal protecton.
Our analysis follows.
Discussion
I Count one- Fourteenth Amendment Equal Protection violation, 42 U.S.C. §
1983
Plaintiff argues that defendants violated his constitutional rights, alleging
unlawful selective and unequal enforcement of local building code rules, under
the Equal Protection Clause of the Fourteenth Amendment, which provides as
follows:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
the laws.
U.S. CONST. amend. XIV, §1 (emphasis added).
Plaintiff seeks to enforce his right to equal protection of the laws using
federal law as a vehicle for such enforcement. See 42 U.S.C. § 1983. Section
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1983 does not, by its own terms, create substantive rights; rather, it provides
remedies for deprivations of rights established elsewhere in federal law or in the
Constitution. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Section
1983 states, in pertinent part:
Every person who, under the color of any statute, ordinance,
regulation, custom, or usage, of any State or territory or the
District of Columbia, subjects, or causes to be subjected, any
citizens of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity or other
proper proceeding for redress . . . .
42 U.S.C. § 1983.
Accordingly, two elements must be met in order to establish a claim
under section 1983: 1) the conduct complained of must have been committed by
a person acting under color of state law, Kaucher v. Cty. of Bucks, 455 F.3d 418,
422 (3d Cir. 2006) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50
(1999)), and 2) the conduct must deprive the plaintiff of rights secured under the
Constitution or federal law. Id. (citing Am. Mfrs., 526 U.S. at 49-50). 3
“The [Supreme] Court's equal protection jurisprudence has typically been
concerned with governmental classifications that ‘affect some groups of citizens
differently than others.’” Engquist v. Oregon Dept. of Agr., 553 U.S.591 (2008),

3

Defendants do not dispute that they are state actors for purposes of the motion
presently before the court (Doc. 54 ¶10, n.1, Def. Br. in Supp’t. of Mot. for Sum.
Jgmt.).
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(citing McGowan v. Maryland, 366 U.S. 420, 425 (1961)). Plaintiff here,
however, does not allege membership in a particular group or suspect class.
Instead, he advances his equal protection claim under the “class of one” doctrine.
Thus, in order for this case to survive the instant motion for summary judgment
plaintiff must first establish evidence that he qualifies as a “class of one.”
The Supreme Court has “recognized successful equal protection claims
brought by a ‘class of one,’ where a plaintiff alleges that he has been intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota Cnty., 260 U.S.
441, 445 (1923)). This standard can be broken down into three elements: 1) was
plaintiff intentionally treated differently; 2) from others similarly situated; and 3)
with no rational basis for the difference in treatment. We will discuss each
element separately.
(A) Intentionally treated differently
Defendants argue that plaintiff has failed to establish evidence from which
a reasonable jury could conclude that defendants intentionally treated him
differently from other home builders similarly situated because problems arose
only when plaintiff and the homeowners deviated from the home plans

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defendants had approved previously (Doc. 54, Def. Br. in Sup. of Mot. for Sum.
Jgmt. at 3).
In order to establish that he was treated differently, plaintiff first relies on his
contention that defendants improperly approved 4 building plan drawings,
blueprints, and specifications drafted by the original contractor, Sennett
Enterprises. Plaintiff admits, however, that defendants reviewed Sennett’s plans,
and issued the necessary building permits (Doc. 1 ¶ 17). Notwithstanding
defendants’ red stamp of approval on them, plaintiff’s expert witness, David W.
Johns, P.E. (hereinafter referred to as “Johns”) found fault with the Sennett plans
and opined that defendants should not have approved them. (Doc. 62 at 5, 6).
Plaintiff’s reliance is misplaced. Despite the same red stamp of approval
he now claims was improperly applied, plaintiff, a home builder with more than
twenty-six (26) years of experience, used the defendant-approved Sennett plans
and building permits to begin construction on the Enders home. (Doc. 1 ¶ 20).
The record contains compelling and direct evidence that problems arose in this
case only when plaintiff himself made changes to the already-approved plans.
(Doc. 5-14, Dep. Charles Kapish at 44-51).
Furthermore, a plaintiff seeking “class of one” status must establish that he
has been intentionally treated differently from others similarly situated. We hold

4

Defendants’ approval of building documents is indicated by a red stamp.
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that, for purposes of section 1983 equal protection claims, the intention at work in
the “class of one” legal standard set forth by the Supreme Court must be directed
toward the individual seeking “class of one” status. Put another way, there must
be a causal connection between a defendant’s intention to treat someone
differently and a plaintiff claiming he was treated differently by that defendant.
No such connection exists here. Whatever intent defendants may have had in
affixing their red stamp of approval on the Sennett plans was directed at Sennett,
and not at the plaintiff in this case. See generally Village of Willowbrook, 528
U.S. at 564. Plaintiff, therefore, has failed to establish that the defendants
intentionally treated him differently.
(B) From others similarly situated
Defendants argue that plaintiff cannot identify any building contractor
similarly situated to him because, unlike any other contractor with whom
defendants claim to have dealt, plaintiff retained an attorney who met them at the
job site, threatened litigation, and requested a detailed report of all code
violations purportedly found in the Enders home. (Doc. 54-1, email exch.
between pl. counsel and Def. Jeff Remas, at 70-73). 5

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Defendants’ exhibits to the motion for summary judgment, including all
deposition testimony and email communications, were filed as one (1) docket
entry that is one-hundred forty-six (146) pages in length. (See Doc. 54-1). Thus,
when citing to Doc. 54-1 we use docket page numbers, rather than the page
number of the individual exhibits comprising Doc. 54-1).
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“Determining whether an individual is ‘similarly situated’ to another
individual is a case-by-case fact-intensive inquiry.” Archer v. York City Sch. Dist.,
227 F. Supp. 3d 361, 371 (M.D. Pa. 2016) (quoting Chan v. Cnty. of Lancaster,
No. 10–3424, 2011 WL 4478283, at *15 (E.D. Pa. Sept. 26, 2011)) (internal
quotation marks omitted). While plaintiff here has alleged that he was similarly
situated to other home builders, in the Third Circuit “[p]ersons are similarly
situated under the Equal Protection Clause when they are alike ‘in all relevant
aspects.’” Price v. City of Phila., 239 F. Supp. 3d 876, 899 (2017), (citing Startzell
v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn,
505 U.S. 1, 10, (1992))).
We agree with defendants that plaintiff failed to establish that there are
other similarly situated building contractors who retained counsel and requested
a detailed report rather than simply work with defendants to get the plan changes
approved. (Doc. 54-1, Dep. of Jeffrey Remas at 28.) We find that plaintiff is, in
fact, unique in this relevant respect. Thus, plaintiff has failed to establish that he
was treated differently from other similarly situated contractors under the narrow
facts in this case.
(C) No rational basis for the difference in treatment
Defendants next argue that, hypothetically, if they did treat plaintiff
differently from other home builders similarly situated, then there is a rational
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basis for the difference in treatment, which is that plaintiff, by and through his
attorney, actually requested different treatment and threatened to sue if he didn’t
get it. (Doc. 54-1, Dep. of Shawn Bolles at 446-461).
Plaintiff attempts to establish that defendants intentionally treated him
differently by preparing a comprehensive report on the Enders home, forty-one
(41) pages in length, not including photographs. (Doc. 62 at 24). The report
describes in great detail thirty-three (33) code violations and requests for
additional information, which Johns found to be in excess of the code violations
and requests for additional information defendant issued for a number of other
similar homes in the area, including the plaintiff’s own home. (Doc. 54-1 at 28.)
We find that defendant did treat plaintiff differently in one respect. The
different treatment presents in the form of the detailed report requested by
plaintiff’s counsel under threat of a lawsuit. Defendants argue, and we agree,
that the detailed report requested by plaintiff’s attorney coupled with a threat of
litigation constitutes a rational basis for defendants to actually prepare and
deliver the report. We further agree with defendants that plaintiff here was
treated differently only upon his own request. (Id.).
“A ‘class of one’ claim, like any equal protection claim evaluated under
rational basis review, cannot succeed if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.’” Price, 239
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F. Supp. 3d at 90, citing Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting FCC v.
Beach Commc'ns, 508 U.S. 307, 313, (1993)). “If there was a rational basis for
the action of the decisionmaker, there is no equal protection class of one
violation.” Brace v. Cnty. of Luzerne, 873 F. Supp. 2d 616, 630 (M.D. Pa. 2012)
(citations omitted), aff’d 535 Fed. App’x. 155 (3d Cir. 2013). Here, plaintiff’s
“class of one” status, upon which his equal protection claim is based, fails as a
matter of law because he cannot establish that the differential treatment he
experienced was without rational basis. Thus, we need not reach the section
1983 analysis described above.
Conclusion
In the summary judgment motion before us defendants have met their
burden by showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's burden of
proof at trial. Celotex, 477 at 322. Plaintiff has failed to satisfy the standard
under which the Supreme Court has recognized successful equal protection
claims brought by a “class of one.”
Plaintiff has not established evidence that he was somehow singled out, or
put upon for not being part of an “in-crowd” in Pittston Township, or any sort of
political shenanigans at work here. We find no evidence of the traditional
discriminatory indicia commonly characterizing “class of one” equal protection
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cases. See generally Olech, 528 U.S. 562. There is no genuine issue of
material fact for trial in this case. Thus, defendants’ motion for summary
judgement will be granted. An appropriate order follows.
Date: April 16, 2018

s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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