CORNERSTONE RESIDENCE, INC. v. THE CITY OF CLAIRTON, PENNSYLVANIA et al

Filing 51

MEMORANDUM ORDER indicating that after careful consideration of Plaintiff Cornerstone Residence, Inc.'s Motion for Reconsideration, 44 its Brief in Support, 45 Defendants the City of Clairton and George Glagola's opposition thereto, 47 and Cornerstone's Reply 50 , Cornerstone's Motion 44 is DENIED (details more fully stated in said Memorandum Order). Signed by Judge Nora Barry Fischer on 1/5/2018. (bdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CORNERSTONE RESIDENCE, INC.,

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Plaintiff,
v.
THE CITY OF CLAIRTON,
PENNSYLVANIA and GEORGE
GLAGOLA,
Defendants.

Civil Action No. 17-706
Judge Nora Barry Fischer

MEMORANDUM ORDER
This matter is before the Court on Plaintiff Cornerstone Residence, Inc.’s
(“Cornerstone”) Motion for Reconsideration, its Brief in Support, Defendants the City of
Clairton and George Glagola’s (“Defendants”) opposition thereto, and Cornerstone’s Reply.
(See Docket Nos. 44, 45, 47, 50). Cornerstone urges the Court to reconsider its November 8,
2017 Memorandum Opinion which granted the Defendants’ motion and dismissed Cornerstone’s
Amended Complaint alleging violations of the Fair Housing Amendments Act. (Docket Nos. 44,
45, 50). Specifically, Cornerstone contends that the Court should grant it leave to amend its
claim for disparate treatment to allege that it would be futile to pursue an appeal to the Zoning
Hearing Board and that the Court should reconsider its dismissal of the facial challenge to
Clairton’s Zoning Ordinance and its interpretation of the Treatment Center “use” set forth
therein. (Id.). Defendants oppose the request for reconsideration and advocate that the Court’s
decision should stand. (Docket No. 47). After careful consideration of the parties’ arguments
and for the following reasons, Cornerstone’s Motion [44] is DENIED.
As the parties are familiar with the facts of this matter, which are fully detailed in the
Court’s Memorandum Opinion, (Docket No. 42), the Court initially turns to the governing legal
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standards. To this end, motions for reconsideration1 “are granted sparingly ‘[b]ecause federal
courts have a strong interest in finality of judgments.’” Jacobs v. Bayha, 2011 WL 1044638, at
*2 (W.D. Pa. Mar. 18, 2011) (quoting Continental Cas. Co. v. Diversified Indus., Inc., 884 F.
Supp. 938, 943 (E.D. Pa. 1995)) (emphasis added). “Because of the interest in finality, at least at
the district court level ... the parties are not free to relitigate issues the court has already
decided,” Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998) (citing
Rottmund v. Continental Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992)), to express
disagreement with the Court’s rulings, see El v. City of Pittsburgh, Civ. A. No. 15-834, 2017 WL
4310233, at *2 (W.D. Pa. Sept. 28, 2017) (citations omitted), or to raise arguments that a party
had the opportunity to present before the Court’s decision, see United States v. Dupree, 617 F.3d
724, 732–33 (3d Cir. 2010) (quotations omitted). Rather, the purpose of a motion for
reconsideration “is to correct manifest errors of law or fact or to present newly discovered
evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). The moving party bears a heavy burden to
demonstrate that an order should be reconsidered and the Court will only grant such a motion if
the moving party shows: (1) an intervening change in the controlling law; (2) the availability of
new evidence which was not available when the court issued its order; or (3) the need to correct a
clear error of law or fact or to prevent a manifest injustice. Max’s Seafood Café, 176 F.3d at 677
(citing North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

This Court’s Practices and Procedures explicitly state that “[a]ny motions for reconsideration shall be filed
within seven (7) days.” See Practices and Procedures of Judge Nora Barry Fischer at § II.M, available at:
http://www.pawd.uscourts.gov/sites/pawd/files/PandPJudgeNoraBarryFischer.pdf (eff. 9/19/17). Cornerstone filed
its motion for reconsideration four weeks after the Court’s dismissal on November 8, 2017 but has not specified any
procedural rule pursuant to which it is seeking reconsideration nor made any effort to demonstrate that the Court’s
practice rule should not control. (See Docket Nos. 44, 45, 50). Defendants did not oppose the motion for this reason
and the Court has set forth several reasons why the motion has been denied, but it could alternatively be denied as
untimely. The Court further comments that Cornerstone’s delays in seeking reconsideration undermine its position
attacking the Defendants’ lack of an immediate response to its latest zoning application.
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In this Court’s estimation, Cornerstone has failed to meet its heavy burden to demonstrate
that the Court should reconsider its Memorandum Opinion and Order as it has not pointed to any
intervening changes in the controlling law; new evidence which was not available at the time of
the decision; or clear errors of fact or law creating a manifest injustice. See id. Instead,
Cornerstone merely expresses its disagreement with the Court’s decision, and makes a series of
arguments that could have been raised prior to the Court disposing of the matter; none of which
support reconsideration. See Haynos v. Siemens Water Techs. Corp., Civ. A. No. 12-173, 2012
WL 6018819, at *1 (W.D. Pa. Dec. 3, 2012) (citing E.E.O.C. v. U.S. Steel Corp., Civ. A. No. 10–
1284, 2012 WL 1150799, at *6–7 (W.D. Pa. Apr. 5, 2012)) (“motions for reconsideration should
not be used by parties as an attempt to reargue or re-litigate old matters or to express
disagreement with a Court's ruling.”). Cornerstone lodges distinct challenges to the Court’s
dismissal of its claims on ripeness grounds under Rule 12(b)(1) and for failure to state a claim
under Rule 12(b)(6), and the Court now briefly explains why reconsideration is denied as to each
claim, in turn.
On the ripeness issue, the Court held that Cornerstone’s disparate treatment claim seeking
injunctive relief in the form of a Court order directing Clairton to issue Cornerstone an
occupancy permit was premature and not ripe for judicial review because it failed to appeal the
denial of its April 20, 2017 application to the Zoning Hearing Board. (Docket No. 42 at 17-20).
As the Court pointed out, the Zoning Officer, Glagola, lacked the authority to issue a final
decision on the application and such authority was expressly reserved for the Zoning Hearing
Board under the Zoning Ordinance. (Id. at 20). The Court further noted that Cornerstone failed
to demonstrate that its claim was ripe for review or that it would be futile to pursue the appeal to
the Zoning Hearing Board because it simply filed this lawsuit rather than the required appeal.

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(Id.). The Court thus dismissed this claim, without prejudice, pursuant to Rule 12(b)(1), as any
challenge to the denial of the April 20, 2017 application was not ripe for adjudication.2
In its Motion for Reconsideration, Cornerstone seeks leave to file a Second Amended
Complaint based, in part, on a series of events which occurred subsequent to the Court’s issuance
of its decision on November 8, 2017. (Docket Nos. 44, 45, 50). To this end, Cornerstone
submitted a new zoning application dated November 9, 2017, to which Glagola responded via a
letter dated December 6, 2017 denying such application “due to insufficient information.” (See
Docket No. 47 at Exs. 1, 2). Cornerstone recites the background of its prior application and
dealings with Clairton and continues that those facts, coupled with the denial of the new
application, constitute a “pattern of obstruction” on behalf of Clairton to prevent it from
obtaining zoning approval. (Docket Nos. 44, 45, 50). With that said, Cornerstone adds in reply
that it “would presently file an appeal to the Zoning Hearing Board if there was a decision to be
appealed that may result in zoning approval” but that it would ostensibly prefer to pursue its
facial challenge to the ordinance in this Court. (Docket No. 50 at 4). Defendants oppose any
further amendment of the complaint because the matter has been appropriately dismissed and
leave to amend would be futile.

(Docket No. 47).

The Court concurs with Defendants’

assessment of this Motion.
Initially, Cornerstone’s motion seeking leave to amend its complaint for a second time is
both untimely and unsupported. Such request is untimely because Cornerstone did not request
leave to file a Second Amended Complaint prior to the Court’s dismissal, despite numerous
opportunities to do so over the more than three months when the motion to dismiss was pending,
(i.e., between July 27, 2017 and November 8, 2017), including in any of the four legal briefs
The Court’s dismissal on this basis should have come as no surprise to Cornerstone as it pointed out in an
Order issued on June 23, 2017 denying its renewed motion for preliminary injunction that the claims asserted in the
initial Complaint were not ripe for adjudication. (See Docket No. 19).
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which it filed during that timeframe, (see Docket Nos. 24; 30; 32; 38). See Dupree, 617 F.3d at
732 (reconsideration is improper when a party should have raised an argument earlier). More
importantly, however, is that Cornerstone has not supported its present request to amend with a
proposed Second Amended Complaint, by attaching one to its filings or otherwise, a deficiency
which the Court of Appeals has held is enough to defeat a motion seeking leave to amend. See,
e.g., U.S. ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013) (“[A] ‘bare
request in an opposition to a motion to dismiss—without any indication of the particular grounds
on which amendment is sought ...—does not constitute a motion within the contemplation of
Rule 15(a).’”) ((quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1280 (D.C. Cir. 1994));
McWreath v. Range Res.—Appalachia, LLC, 645 F. App’x. 190, 196 (3d Cir. 2016) (“[T]he
failure to submit a draft amended complaint ‘is fatal to a request for leave to amend.’”) (quoting
Zizic, 728 F.3d at 243). Beyond these procedural defects, the facts proffered by Cornerstone in
its Motion, Brief and Reply, as well as Joyce Douglass’ declaration, purport to set forth an
entirely new claim arising from the denial of the November 9, 2017 application. (See Docket
Nos. 44, 45, 50). But, this claim suffers from the same defects as the earlier one because
Cornerstone has not appealed the denial of its new application to the Zoning Hearing Board in
order to obtain a final decision on the zoning of the property, such that it is also not ripe for
adjudication.3 (See Docket No. 42 at 17-20).
Finally, the proffered facts simply do not support a claim that Defendants have engaged
in any behavior which has obstructed or precluded Cornerstone from pursuing an appeal to the
Zoning Hearing Board. (See Docket Nos. 44, 45, 50). To the contrary, Defendants brought this
obvious defect to Cornerstone’s attention in their first motion to dismiss filed on June 23, 2017,
It also appears that the prior claim arising from the April 20, 2017 application is essentially moot as that
application has been abandoned by Cornerstone in favor of the more recent one.
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(Docket No. 13), the Court agreed with this position in an Order entered on that date, (Docket
No. 19), and Defendants have consistently maintained this position throughout this litigation,
(see e.g., Docket Nos. 22, 23, 27, 35). Despite being on notice of the problem, Cornerstone has
admittedly declined to file an appeal, based on the advice of counsel, for reasons that are largely
unstated and from which the Court can only infer is a belief that federal litigation would proceed
more quickly than the zoning appeal. (See Docket No. 50 at 4). While Cornerstone attempted to
plead around the problem by asserting the facial challenge to the Zoning Ordinance, a claim
which the Court found was ripe but dismissed for failure to state a claim, it has not stated a
plausible claim that Defendants obstructed it from appealing the denials of either application to
the Zoning Hearing Board.

(See Docket Nos. 44, 45, 50).

In this Court’s estimation,

Cornerstone cannot now complain that it is futile to file an appeal which has always been
available to it but was (and continues to be) deliberately avoided.

It also cannot seek

reconsideration by citing legal authorities, from the Third Circuit or otherwise, which were
issued several years before the Court’s decision as the same does not constitute a change in the
law justifying reconsideration. See Max’s Seafood Café, 176 F.3d at 677. Accordingly, the
Court denies Cornerstone’s motion for reconsideration of the dismissal of its claim under Rule
12(b)(1) along with its corresponding request to amend.
Moving on to Cornerstone’s facial challenge to the Treatment Center “use,” the Court
dismissed the claim on three alternative bases. In this regard, the Court held that the definition
of the Treatment Center “use”:
(1) is unambiguous and legislates the housing of individuals with
a “current addiction” to controlled substances who are not
covered by the FHAA and were not among the prospective
residents of Cornerstone;
(2) is unambiguous and legislates a potential impairment of
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current drug addiction or alcoholism but not the housing of
handicapped (or disabled) individuals under the FHAA who
also must demonstrate that such impairment “substantially
limits one or more of such person’s major life activities”; and,
(3) is ambiguous but, when construed consistently with the
remainder of the ordinance under applicable legal principles of
Pennsylvania law, must be read to preclude a facial challenge
given several express statements of Clairton’s intent to comply
with the FHAA, which the Court cited in its decision.
(See Docket No. 42 at 19-28). Given these rationales, the Court dismissed the facial challenge,
with prejudice, under Rule 12(b)(6).
Cornerstone asserts that it is entitled to reconsideration because the Court allegedly made
its rulings “outside the adversary process” relying on a point made by Defendants only in a
footnote to their Reply Brief; reargues the merits of the Court’s decision and interpretation of the
ordinance; and, to its Reply Brief, attaches declarations of Tim Grealish and Joyce Douglass, in
further support of its interpretation of the ordinance. (Docket Nos. 44, 45, 50). Defendants
contest these points and oppose the Motion. (Docket No. 47). The Court agrees with the defense
that reconsideration of the 12(b)(6) dismissal is not warranted.
At the outset, the declarations of Mr. Grealish and Ms. Douglass constitute matters
outside the pleadings which cannot be considered by the Court when ruling on a Rule 12(b)(6)
motion.

(See Docket No. 42 at 12, n.2).

Therefore, the Court will not rely upon these

declarations as a basis to reconsider the dismissal of Cornerstone’s disparate treatment claim for
failure to state a claim. (Id.). Further, as the Court recounted in its decision, Pennsylvania law
provides that unambiguous zoning ordinances are to be construed based on their plan meaning,
see 1 Pa.C.S. § 1903, and if the ordinance is deemed ambiguous, the Court is to look to the
ordinance as a whole, to determine the intent of the legislative body and to consider sources
listed in 1 Pa. C.S. §1921, which does not include such third party declarations. (Docket No. 42
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at 21-22). It is well established that a Zoning Hearing Board’s “interpretation of a municipality’s
zoning ordinance is entitled to weight because it reflects the construction of a statute by an entity
charged with its execution and application.” Omnipoint Commc’ns Enterprises, L.P. v. Zoning
Hearing Bd. of Easttown Twp., 331 F.3d 386, 393 (3d Cir. 2003); see also 1 Pa. C.S. §
1921(c)(8).

As noted, the Court lacks the Zoning Hearing Board’s interpretation of the

challenged ordinance because Cornerstone has not appealed the denial of its application to that
entity. In any event, neither Mr. Grealish nor Ms. Douglass were involved in drafting the
ordinance, (which was effective in 2014), such that their opinions construing the language would
not be helpful to the Court’s interpretation of the Ordinance. (See Docket Nos. 44-1 (noting that
Grealish is an “intervention specialist” with 30 years’ experience); 44-2 (noting that Douglass is
a former state parole officer for over 20 years and now the executive director of Cornerstone)).
Next, the Court disagrees with Cornerstone’s assertions that this matter was decided
“outside the adversary process” or that the Court improperly relied upon a “new argument”
raised by the defense in a footnote in their Reply Brief to reach its decisions without providing it
with an opportunity to respond. (Docket Nos. 44, 45, 50). “It is axiomatic that reply briefs
should respond to the respondent’s arguments or explain a position in the initial brief that the
respondent has refuted.” Gilbert v. United States, No. CV 14-243 (NLH), 2016 WL 4087274, at
*4 (D.N.J. July 28, 2016) (quotation and citations omitted). “Even though a party generally may
not raise a new argument for the first time in a reply brief, the trial court has discretion to
consider new arguments.” Sabert Corp. v. PWP Indus., Inc., Civ. A. No. 14-6500 MAS, 2015
WL 5007838, at *1, n.3 (D.N.J. Aug. 20, 2015) (citations omitted). But, a party is not prejudiced
by new arguments set forth in a Reply if it is provided the opportunity to file a Sur-Reply to
address any such issues. Cf. Baker v. City of Elizabeth, et al., 2017 WL 4220363, at *1, n.2

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(D.N.J. Sept. 22, 2017) (purpose of a sur-reply is to respond to “any new argument raised in the
reply.”). Here, the Court expressly granted Cornerstone leave to file a Sur-Reply Brief upon its
contention that Defendants “raised a new argument in their Reply,” (Docket No. 28 at ¶ 1), and
Cornerstone filed a Sur-Reply Brief which the Court reviewed and considered prior to dismissing
this action. Therefore, as Cornerstone was expressly granted the opportunity to respond to any
new arguments raised by Defendants in their Reply, its own failure to do so does not provide a
basis for re-argument or reconsideration. See Dupree, 617 F.3d at 732 (reconsideration is
improper when a party should have raised an argument earlier).
Regardless, the Court does not believe that Defendants’ Reply Brief raised a “new
argument” which was outside the scope of the issues raised in their initial Brief. To this end,
Defendants explicitly argued that “Cornerstone fails to state a plausible claim because it fails to
allege facts that Defendants’ denial of its Application was ‘because of’ some discriminatory
reason.” (Docket No. 23 at 10 (citing Cmty. Servs. v. Wind Gap Mun. Auth., 421 F.3d 170, 178
(3d Cir. 2005)). The Wind Gap case is a precedential decision from the United States Court of
Appeals for the Third Circuit which this Court is bound to follow. See Wind Gap, 421 F.3d at
178-79.
Given same, this Court reviewed Wind Gap, and quoted from passages wherein the Court
of Appeals noted with respect to facial challenges under the FHAA that “‘the most fundamental
element of the claim is that plaintiff must demonstrate that defendant’s alleged discrimination
was ‘because of a handicap.’” (Docket No. 42 at 21 (quoting Wind Gap, 421 F.3d at 178-79)).
The Court of Appeals stated that sometimes this element is “glossed over” or “so obvious as not
worthy of discussion” and then instructed District Courts to “‘examine the language of the
challenged regulation or policy’ against the definition of ‘handicap’ under the Act in order to

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determine if the ‘handicap’ is the basis for different treatment and therefore facially violates the
FHAA.” (Docket No. 42 at 21 (quoting Wind Gap, 421 F.3d at 178-79) (emphasis in original).
In short, Defendants’ initial argument appropriately pointed the Court to the prevailing caselaw
and identified a flaw in Cornerstone’s facial challenge to the ordinance, subjecting it to dismissal
under Rule 12(b)(6). No more was required for Defendants to “tee up” the issue for a decision
by the Court. See Dupree, 617 F.3d at 728 (quoting Shell Petroleum, Inc. v. United States, 182
F.3d 212, 218 (3d Cir. 1999) (a party “must unequivocally put its position before the trial court at
a point and in a manner that permits the court to consider its merits.”)). As the Court noted,
Cornerstone’s allegations that the Treatment Center “use” discriminated against its prospective
residents because of their handicapped status were “conclusory” and after conducting the
analysis suggested by the Court of Appeals in Wind Gap by comparing the language of the
Ordinance to the definition of handicapped under the Act, the Court ultimately determined that
Cornerstone failed to state a claim and granted the relief requested by Defendants. (Docket No.
42 at 19-28). This ruling is consistent with the Defendants’ position set forth in their Reply Brief
but would have been reached by the Court without it.
In light of this analysis, the Court concludes that all of Cornerstone’s present challenges
to the interpretation of the Treatment Center “use” should have been raised earlier and denies
reconsideration on this basis. See Dupree, 617 F.3d at 732 (reconsideration is improper when a
party should have raised an argument earlier). With that said, the Court is not persuaded by any
of Cornerstone’s arguments that it should reconsider its interpretation of the ordinance as the
Court finds them to be without merit and, even if they were accepted, they simply do not
undermine all three of the alternative interpretations offered by the Court in upholding the

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legislation. (See Docket No. 42 at 19-28). However, the Court would add that § 337-38(G)4 of
the Zoning Ordinance also includes a provision outlining steps that an applicant must follow to
seek a “reasonable accommodation” from Clairton based upon disabilities (or handicaps) of the
residents which was not expressly cited in the Memorandum Opinion but lends further credence
to the third alternative. See City of Clairton, Zoning Ordinance § 337-38(G) (enacted 7/8/14).
Notably, any such “reasonable accommodations” must be reviewed and approved by the Zoning
Hearing Board and not the Zoning Officer, Glagola. Id.
For all of these reasons, Cornerstone’s Motion for Reconsideration [44] is DENIED.

s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: January 5, 2018
cc/ecf: All counsel of record.

Section 337-8 Provisions for Special Exemptions and Conditional Uses, provides, in pertinent part, that:
G.
Persons With Disabilities. After the City receives a complete written
application, the Zoning Hearing Board shall grant a special exemption allowing
modifications to specific requirements of this Ordinance that the application
proves to the satisfaction of the Zoning Hearing Board are required under
applicable Federal law to provide a “reasonable accommodation” to serve
persons who the applicant proves have “disabilities” as defined in and protected
by such laws.
1.
Such reasonable accommodations shall be requested in
accordance with the U.S. Fair Housing Act Amendments and/or the
Americans with Disabilities Act, as amended.
2.
If the applicant is requesting a reasonable accommodation
under the United States Fair Housing Amendments Act of 1988 or the
Americans with Disabilities Act, the applicant shall identify the
disability which is protected by such statutes, the extent of the
modification of the provisions of this Ordinance necessary for a
reasonable accommodation, and the manner by which the reasonable
accommodation requested may be removed when such person(s) with a
protected disability no longer will be present on the property.
3.
Any modification approved under this Section may be limited
to the time period during which the persons with disabilities occupy or
utilize the premises.
(See Zoning Ordinance at § 337-8(G), Docket No. 24 at 91-92).
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