242 F.3d 151 (3rd Cir. 2001), 99-2055, Barnes Foundation v Township of Lower Merion

Docket Nº:99-2055
Citation:242 F.3d 151
Party Name:THE BARNES FOUNDATION, V. THE TOWNSHIP OF LOWER MERION; THE LOWER MERION BOARD OF COMMISSIONERS; GLORIA P. WOLEK, INDIVIDUALLY AND IN HER CAPACITY AS PRESIDENT OF THE TOWNSHIP BOARD OF COMMISSIONERS; FRANK LUTZ, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; KENNETH E. DAVIS, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; PHYLLIS L. ZEMBLE, I
Case Date:March 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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242 F.3d 151 (3rd Cir. 2001)

THE BARNES FOUNDATION,

V.

THE TOWNSHIP OF LOWER MERION; THE LOWER MERION BOARD OF COMMISSIONERS; GLORIA P. WOLEK, INDIVIDUALLY AND IN HER CAPACITY AS PRESIDENT OF THE TOWNSHIP BOARD OF COMMISSIONERS; FRANK LUTZ, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; KENNETH E. DAVIS, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; PHYLLIS L. ZEMBLE, INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER; ORA R. PIERCE, INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER; JAMES J. PRENDERGAST, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; ALAN C. KESSLER, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; BRIAN D. ROSENTHAL, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; JOSEPH M. MANKO, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; HOWARD L. WEST, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; W. BRUCE MCCONNEL, III, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; JAMES S. ETTELSON, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; DAVID A. SONENSHEIN, INDIVIDUALLY AND IN HIS CAPACITY AS COMMISSIONER; REGENE H. SILVER, INDIVIDUALLY AND IN HER CAPACITY AS COMMISSIONER; STEVEN ASHER; INA ASHER, H/W; ROBERT MARMON; TOBY MARMON, H/W; WALTER HERMAN; NANCY HERMAN, H/W; ARTHUR GERSHKOFF; LEONARD H. GINSBERG; BETH R. GINSBERG, H/W; MARK MOSTER; MARLENE MOSTER, H/W; JAMES NEALON; LESTER SCHAEVITZ; DIANE SCHAEVITZ, H/W; MICHAEL TOAFF; ANNA LEV-TOAFF, H/W; BRUCE SCHAINKER INA ASHER, STEVEN ASHER, NANCY HERMAN WALTER HERMAN, ROBERT MARMON AND TOBY MARMON, APPELLANTS

No. 99-2055

United States Court of Appeals, Third Circuit

March 5, 2001

Argued October 5, 2000

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Judge: The Honorable Ronald L. Buckwalter

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[Copyrighted Material Omitted]

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Attorneys for Appellants: David H. Weinstein (argued) Kellie A. Allen Weinstein, Kitchenoff, Scarlato & Goldman 1608 Walnut Street Suite 1400 Philadelphia, PA 19103

Attorneys for Appellee: Sheryl L. Auerbach Maura E. Fay (argued) Dilworth, Paxson, Kalish & Kauffman 1735 Market Street 3200 The Mellon Bank Center Philadelphia, PA 19103

Before: Nygaard, Greenberg, and Cowen, Circuit Judges.

OPINION OF THE COURT

Greenberg, Circuit Judge

I. FACTUAL & PROCEDURAL HISTORY

A. Factual History

This matter comes on before this court on appeal from an order entered on November 24, 1999, denying an application seeking attorney's fees filed by certain successful defendants in the aftermath of

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the entry of an order dismissing the complaint against them in this civil rights action. The Barnes Foundation (the "Barnes"), which brought the action, is a Pennsylvania corporation that operates an art gallery on North Latches Lane in Lower Merion Township, Pennsylvania, in the Philadelphia suburbs. Dr. Albert C. Barnes established the Barnes in 1922 by Indenture and Agreement conveying the real estate that the Barnes currently occupies, as well as his art collection. The Indenture provides that the Foundation's purpose is "to promote the advancement of education and the appreciation of the fine arts." App. at 178. The Barnes is governed by a board of trustees that during the time relevant to this action consisted of Shirley A. Jackson, Niara Sudarkasa, Charles A. Frank III and Richard H. Glanton, the board's president. Lincoln University, which the Barnes describes as "a predominately and historically African-American university," see br. at 4, located in Chester County, Pennsylvania, appoints all but one of the trustees and the Mellon Bank appoints the other. At the times relevant to this opinion, the trustees except for Frank, who is or was a Senior Vice President of Mellon, were African-American.

The six appellants-defendants, Ina Asher, Steven Asher, Nancy Herman, Walter Herman, Robert Marmon and Toby Marmon, are residents of the neighborhood in which the Barnes is located. Even though the Barnes brought this action against 17 neighbors as well as Lower Merion Township (the "Township"), the Lower Merion Board of Commissioners (the "Board"), and each of the township commissioners (the "Commissioners") in their individual and official capacities, the six appellants are the only defendants who are parties to this appeal.

The events giving rise to this case originate from the Barnes' operation and use of its gallery. For many years access to the gallery was limited, see Barnes Found. v. Keely, 171 A. 267, 268 (Pa. 1934), but in 1960, pursuant to the entry of a consent decree between the Barnes and the Commonwealth of Pennsylvania, the Barnes opened the gallery to the public two days per week, except during July and August of each year. Subsequently, the Barnes opened the gallery to the public for an additional half-day per week. In 1990, Glanton became president of the Barnes' board of trustees and in that capacity, beginning in 1993, initiated a major renovation of its facilities and art gallery. By reason of the renovation, the Barnes was closed until November 1995. To fund the renovations, the Barnes sent certain selected works of art from its collection on a world tour which generated a great deal of publicity for the Barnes.

Around August or September of 1995, prior to the Barnes' reopening, it sought permission from the Township to construct a parking lot on its property. This application prompted the neighbors and other individuals to voice concerns over the facility's scheduled reopening as they believed that the reopening would cause parking, noise and pollution problems. Contemperaneously, individuals living in the area of the Barnes, including the appellants, formed The Latches Lane Neighborhood Association to oppose the Barnes' reopening, as well as to challenge certain of its other activities that they believed violated the 1922 Indenture and Agreement as well as local zoning laws. The Barnes alleges that this opposition included supporting litigation in the Montgomery County Orphan's Court concerning its request to change the terms and conditions for the operation of the gallery, in particular opposing its attempt to expand its operations from two and one-half to six days per week.

The complaint in this action alleges that the Barnes' neighbors and township officials conspired to deprive it of its constitutional rights on the basis of the race of three of the four Barnes trustees and that the neighbors and officials agreed that the Township would discriminate against the

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Barnes by requiring "strict compliance" with township rules and regulations and by "closely monitor[ing]" the Barnes, while not treating its institutional neighbors in this way. See app. at 185. According to the Barnes, the conspiracy's ultimate goal was to prevent its reopening.

The Barnes set forth particularized allegations in its complaint. Thus, it charged that in the months preceding its scheduled reopening, the Township and neighbors engaged in several activities with the intention of preventing its reopening. The Barnes said that to further this goal during the last two months of construction at the Barnes, a township inspector made six unannounced visits to the site and that during the final inspection of the premises on October 30, 1995, approximately two weeks prior to the scheduled reopening, the deputy fire marshal announced prior to beginning an inspection that the facility would not pass. The Barnes alleges that he imposed several arbitrary and unreasonable requirements on it as requirements for obtaining a certificate of occupancy.

On November 9, 1995, two days before the Barnes' scheduled opening gala events, David Latshaw, the Township Manager, sent Glanton a letter criticizing, among other things, the Barnes' lack of a traffic plan for the reopening. Glanton responded by letter indicating his belief that Latshaw's letter was overly hostile and that the Township was treating the Barnes differently from other entities because of racial animus. The Barnes asserts that when the parties met the day of the opening gala, the Township treated it in an overtly hostile manner.

The complaint further alleges that on November 10 and 11, 1995, during the opening gala events, certain persons, including appellants Ina Asher, Walter Herman, Robert Marmon, and Toby Marmon, congregated and picketed at the Barnes' main gate to protest its reopening. Moreover, it asserted that unspecified individuals carried placards that read, among other things, "From LA to PA, Money Buys Justice" and "Lincoln University - Go Home." In addition, Robert Marmon and Toby Marmon videotaped gallery visitors entering and exiting the Barnes.

Four days after the gala events, the Commissioners held a meeting to discuss the Barnes situation. At the hearing, several neighbors, including Robert Marmon and Steven Asher, spoke out against the official reopening scheduled for the following day, November 16, 1995. Specifically, Robert Marmon stated, in relevant part:

For sixteen years we hardly knew the Barnes Foundation was across the street. They were good neighbors. Then, something changed. We didn't change. We did nothing wrong. Outsiders have taken over the Barnes, people who have no attachment to the neighborhood, to the life we have quietly enjoyed. We have been citizens here for decades. Mr. Glanton and his people have not been. We have been voters here for decades. Mr. Glanton and his people have not. And most importantly, we have been taxpayers here for decades and Mr. Glanton and his people have not. I now finally understand what a carpetbagger is and how one operates.

Id. at 94. The Barnes contends that Marmon's use of the words "outsiders," "Mr. Glanton and his people," and "carpetbagger" indicates a racially hostile attitude both on his part and on that of his fellow...

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