Adams Outdoor Adver. Ltd. P'ship v. Pa. Dep't of Transp.

• Citation: 307 F.Supp.3d 380
• Decision Date: 09 February 2018
• Docket Number: No. 5:17–cv–01253,5:17–cv–01253
• Parties: ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; and Leslie S. Richards, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

307 F.Supp.3d 380

ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, Plaintiff,

v.PENNSYLVANIA DEPARTMENT OF TRANSPORTATION;¹ and Leslie S. Richards, Defendants.

No. 5:17–cv–01253

United States District Court, E.D. Pennsylvania.

Signed February 9, 2018

Victor F. Cavacini, Gross, McGinley, LLP, Allentown, PA, for Plaintiff.

Stephen R. Kovatis, Office of Attorney General, Philadelphia, PA, for Defendants.

OPINION

Defendant Richards' Motion to Dismiss, ECF No. 15—Granted in part/Denied in part

Joseph F. Leeson, Jr., United States District Judge

I. INTRODUCTION

Plaintiff Adams Outdoor Advertising Limited Partnership ("Adams") challenges the constitutionality of the Interchange Prohibition in Pennsylvania's Outdoor Advertising Control Act of 1971, 36 P.S. §§ 2718.101 – 2718.115 (the "Act"). See also Pa. Code §§ 445.1–445.9. Defendant Leslie S. Richards ("Richards"), the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), has moved to dismiss the Amended Complaint or, in the alternative, to transfer venue to the Middle District of Pennsylvania. For the reasons set forth below, the motion is denied as to Adams's claim that the Act fails First Amendment scrutiny, the facial challenge to the Act under the First Amendment based on the absence of any time restrictions, and Adams's as-applied challenge under the First Amendment based on the delay before its application was decided. The motion to dismiss is granted with respect to Adams's request for monetary damages, Adams's vagueness challenge regarding the 500–feet spacing requirement in the Interchange Prohibition, and Adams's facial substantive due process claim. The motion to dismiss is granted in part as to Adams's as-applied substantive due process claim and equal protection claim, as these claims are dismissed without prejudice as premature. The request to transfer venue is denied.

II. BACKGROUND

Adams is in the business of outdoor advertising (leasing space from private property owners and erecting billboards that disseminate messages). It filed a Complaint and an Amended Complaint alleging that the Act is unconstitutionally vague with respect to the regulation that "no structure may be erected adjacent to or within five hundred feet of an interchange or safety rest area, measured along the interstate or limited access primary from the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way." 36 P.S. § 2718.105(c)(2)(i) ("Interchange Prohibition"). The Interchange Prohibition includes an exemption, stating that "[o]fficial and ‘on premise’ signs, as defined in section 131(c) of Title 23, United States Code, shall not be counted nor shall measurements be made from them for purposes of determining spacing requirements." See 36 P.S. 2718.105(c)(2)(iv). "Official signs" are defined as "[d]irectional or other official signs or notices erected and maintained by public officers or agencies pursuant to and in accordance with direction or authorization contained in State of Federal law, for the purpose of carrying out an official duty or responsibility." 23 C.F.R. 750.105(a). "On-premise signs" are "[s]igns not prohibited by State law which are consistent with the applicable provisions of this section and § 750.108 and which advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located." Id.

To support its claim that the provision is vague, Adams alleges that PennDOT has changed its interpretation of the Interchange Prohibition several times in the past thirty-seven years as to whether the 500–feet spacing requirement applies to structures on the opposite side of the highway from an interchange or safety rest area, or only on the same side. The last time PennDOT changed its interpretation was in 1997, when it determined that the 500–feet spacing requirement in the Interchange Prohibition applies to structures located on both sides of the highway. This interpretation, which Adams complains PennDOT made even though there were no amendments to the Act requiring a new interpretation, was announced in a strike-off letter issued on March 27, 1997.² Adams asserts that this interpretation conflicts with 67 Pa. Code. § 445.4, which states that the "distance between sign structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along the same side of the traveled way. " 67 Pa. Code § 445.4(2)(v) (emphasis added).

At the time the complaints were filed, Adams had filed an application to erect a billboard along the east-bound (south) side of U.S. Route 22 in Hanover Township, Northampton County, but had not yet received a response from PennDOT.³ The proposed billboard would not be within 500 feet from an "exit ... or entrance [ramp] to the main-traveled way" as measured along the south side of U.S. Route 22, but it would be within 500 feet from a ramp located on the north side of U.S. Route 22.

Adams raises numerous claims, alleging violations of its First and Fourteenth Amendment rights of free speech and freedom of expression, as well as violations of due process and equal protection. Adams challenges the constitutionality of the Act on its face and as applied, and alleges that the Interchange Prohibition is unconstitutionally vague and not narrowly tailored to advance any governmental interest. Adams complains about the lack of time restrictions in the Act, asserts that the Act is so vague as to be impossible of reasonably accurate interpretation, and alleges that PennDOT has unlimited discretion to give varying interpretations of the Interchange Prohibition. Adams also asserts violations of his substantive due process and equal protection rights.

III. STANDARDS OF REVIEW

A. Motion to Dismiss

In rendering a decision on a motion to dismiss, this Court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 374 n.7 (3d Cir. 2002) ) (internal quotation marks omitted). Only if "the ‘[f]actual allegations ... raise a right to relief above the speculative level’ " has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that determining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense"). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States , 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc. , 926 F.2d 1406, 1409 (3d Cir. 1991) ).

B. Motion to Transfer Venue

When venue is improper, the court must dismiss the case or, if in the interests of justice, transfer it to any district or division in which it could have been brought. 28 U.S.C. § 1406(a). Additionally, even when venue is proper, § 1404 allows the court to transfer venue "[f]or the convenience of parties and witnesses, [if] in the interest of justice, ... to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). See also Neopart Transit, LLC v. Mgmt. Consulting, Inc. , No. 16–3103, 2017 WL 714043, at *8, 2017 U.S. Dist. LEXIS 25255 at *21–22 (E.D. Pa. Feb. 23, 2017) ("Venue can be appropriate in more than one district."). Transfer is in "the discretion of the court." 28 U.S.C. § 1404(b) ; Piper Aircraft Co. v. Reyno , 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (holding that "where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference"). "The burden of establishing the need for transfer ... rests with the movant." Jumara v. State Farm Ins. Co. , 55 F.3d 873, 879–80 (3d Cir. 1995). The court should consider the following factors:

(1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) where the claim arose; (4) "convenience of the parties as indicated by their relative physical and financial conditions"; (5) "the convenience of the witnesses—but only to the extent that the witnesses may actually be unavailable for trial in one of the fora"; (6) the location of books and records; (7) the enforceability of the judgment; (8) practical considerations that could expedite or simplify trial; (9) the level of court congestion in the two fora; (10) "the local interest in deciding local controversies at home"; (11) the public policies of the fora; and (12) in a diversity case, the familiarity of the two courts with state law.

In re Amendt , 169 Fed.Appx. 93, 96 (3d Cir. 2006) (quoting Id. ). The first six factors relate to private interests, while the remaining six pertain to the public interest. Jumara , 55 F.3d at 879.

IV. ANALYSIS⁴

In alleging combined⁵ violations of the First and Fourteenth Amendments, Adams asserts that the Act results in a total prohibition of its right to speak at the proposed location and that because the vagueness of the Interchange Prohibition fails to give a person of ordinary intelligence fair notice and also allows for differing interpretations, it is inherently inconsistent with a valid time, place, and manner regulation because it has the potential for becoming a means of suppressing speech for its content. Adams claims that the varying interpretations also violate equal protection. Finally, Adams asserts that the absence of any time constraints on PennDOT in the Act, and PennDOT's one-year delay in rejecting Adams' application...