Assic. in Obstetrics & Gynecology v. Upper Merion

• Citation: 270 F.Supp.2d 633
• Decision Date: 16 July 2003
• Docket Number: Civil Action No. 03-2313.
• Parties: ASSOCIATES IN OBSTETRICS & GNECOLOGY, on behalf of itself and its patients et al., Plaintiffs, v. UPPER MERION TOWNSHIP et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

270 F.Supp.2d 633

ASSOCIATES IN OBSTETRICS & GNECOLOGY, on behalf of itself and its patients et al., Plaintiffs, v. UPPER MERION TOWNSHIP et al., Defendants.

Civil Action No. 03-2313.

United States District Court, E.D. Pennsylvania.

July 16, 2003.

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Nancy C. Demis, Gallagher, Schoenfeld, Surkin & Chupein, Media, PA, Julia E. Gabis, Julia E. Gabis & Associates, Conshohocken, PA, for Plaintiffs.

Charles C. Sweedler, David J. MacMain, Danielle M. White, Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

BAYLSON, District Judge.

The principal issue for decision is whether the entry of a state court injunction against one of the plaintiffs preventing operation of its business as an abortion provider warrants dismissal for failure to state a federal constitutional claim, declination of jurisdiction, or abstention, of the provider's civil rights claims in this Court for damages, and injunctive relief conflicting with the state court's injunction.

Plaintiff Associates in Obstetrics & Gynecology ("Associates"), a provider of abortion services in King of Prussia Pennsylvania, on behalf of itself and its patients, and Stephen C. Brigham, M.D., a licensed physician and owner of Associates (collectively "Plaintiffs"), bring this Complaint for violation of their rights guaranteed under the United States Constitution and pendent state claims against defendants Upper Merion Township ("the Township"); Township Board of Supervisors; borough supervisors Barbara S. Frailey, Dan Rooney, Fiorindo A. Vagnozzi, Ralph P. Volpe, Anthony J. Volpi; Township Zoning Hearing Board ("the Board"); zoning hearing board members Edward McBride, Michael Fiore, William Whitmore; Ronald G. Wagenmann, Township Manager; Mark A. Zadroga, Township Zoning Officer; and Does I-X, individuals residing in this judicial district (collectively "Defendants").

In August 2001, Defendant Zadroga issued a cease and desist order to Associates that it was in violation of an Upper Merion Township Zoning Code based on his determination that Associates was operating as a clinic and, therefore, had to be situated on a lot of at least three acres, which it was not.

The Township's cease and desist order sparked a series of enforcement actions by the Township to close Associates, which led to four still-pending legal proceedings in Pennsylvania state court including the issuance of a preliminary injunction against Associates. Defendants moved to dismiss Plaintiffs' Complaint. Because of the related state court litigation, this Court directed the parties to file supplemental briefs stating their respective positions on whether the Rooker-Feldman doctrine¹ deprives this Court of subject matter jurisdiction. Plaintiffs filed a brief outlining their position that this Court has jurisdiction, and Defendants filed a Supplemental Memorandum in support of their previously filed Motion to Dismiss, claiming that the Rooker-Feldman doctrine prevents this Court from exercising subject matter jurisdiction.

Oral argument was held on July 9, 2003. For the reasons that follow, the Court finds that the Rooker-Feldman doctrine does not deprive the Court of subject matter jurisdiction. Defendants' Motion to Dismiss also requests abstention and asserts that Plaintiffs' allegations are legally insufficient under the federal civil rights laws and state law claims. Defendants' Motion will be granted in part and denied in part. On the key issue of abstention, this Court will not abstain as to Plaintiffs' damage claims, and will defer decision on abstention as to injunctive relief, pending the evidence to be introduced at the hearing on Plaintiffs' Motion for Preliminary Injunction on July 28, 2003.

1. Background and Procedural History

The following facts are taken from Plaintiffs' Complaint, and the record of state administrative and judicial proceedings, and are construed in the light most favorable to Plaintiffs.²

In April 2001, Associates began operating at 677 West DeKalb Pike, Suite 301, in King of Prussia, Pennsylvania, where it provided obstetric and gynecological services including family planning, testing and treatment for sexually transmitted diseases, and abortion services. (Pis.' Compl. ¶ 14). Associates asserts it is a unique provider of abortion services because it advertises in the local telephone directory, and its abortion services are targeted toward women who do not have a doctorpatient relationship with a medical practice and to women who seek less expensive abortion services than those provided by hospitals and many physicians. Id. ¶¶ 15, 17.

In early August 2001, anti-abortion protesters began picketing around the subject property, and on August 15, 2001, Defendant Zadroga, the township zoning officer, appeared at the property claiming he was there to conduct an inspection of the premises and its use. Id ¶¶ 23-24. Plaintiffs allege that the Doe Defendants approached employees, agents, and representatives of Upper Merion Township, including the individually named Defendants, to object to Plaintiffs' use of the property for the purpose of hindering and impeding Plaintiffs' patients and prospective patients' lawful procurement of abortion services. Id. ¶ 25. Plaintiffs further allege that all named Defendants, in their individual and official capacities, conspired with each other to engage in a pattern of harassment, selective enforcement, and procedural abuses against Associates, and that in furtherance of this conspiracy, Defendants directed the township zoning officer to conduct an inspection of Associates' office for the purpose of finding a basis to force it to cease operations. Id. ¶ 28.

On August 16, 2001, the township zoning officer issued a cease and desist order, finding that Associates was operating a medical clinic for the treatment of humans on a lot less than three acres in area in violation of Article XVIII § 165-97 of the Upper Merion Township Code ("the Code")³ and that Associates did not secure a use and occupancy permit before it opened for business. (Pis.' Supplemental Br., Ex. 1).

The issuance of the cease and desist order precipitated the following four pending legal proceedings in state court, and ultimately the filing of the instant Complaint.

A. The Cease and Desist Order

Associates appealed the issuance of the cease and desist order issued by Mr. Zadroga, as the Township zoning officer, to the Board and attempted to raise the claim of selective enforcement of the Code at the public hearings, but the Township objected to all questions related to that claim, and those objections were sustained by the Board. (See Pis.' Supplemental Br., Ex. 2).

On June 5, 2002, the Board denied Associates' appeal, and issued a written opinion stating that "[t]he fact that the medical treatment provided by Appellant is abortion has no bearing on the Board's decision. What is determinative is that the primary purpose of the facility is for medical treatment of humans—a use that the Upper Merion Township zoning ordinance distinguishes from the general category of 'professional offices.'" Id. Ex. 3 at 19. The Board did not address Associates' claim of selective enforcement of the Code.

Associates appealed this decision to the Montgomery County Court of Common Pleas, No. 02-10780, which, acting as an appellate court, took no evidence and reviewed the Board's decision for abuse of discretion and errors of law. Id. Ex. 4. In its appeal, Associates did not raise the selective enforcement issue, because of the Board's statement that its decision was not based on the fact that Associates provides abortion services. (Pis.' Supplemental Br. at 2).⁴ On December 20, 2002, the court affirmed the Board's decision, and on March 13, 2003, a two-judge panel of the court issued a written opinion. Id. Ex. 4.

In their opinion, Judges Thomas M. Del Ricci and Arthur R. Tilson concluded that although the terms "office," "clinic," and "professional" are not defined in the Code, state law required that they be given their common meanings, and therefore the Board did not err because the "use provided by [Associates] is that of a clinic, not just because it advertises as such, but also because it maintains specialized equipment, a transfer agreement, and a recovery room." Id. at 7. The court also found that although Associates' "use may fall within the more general category of professional use, it also falls within the more specific category of medical clinic for the treatment of humans, resulting in [Associates being in violation of the minimum three-acre requirement." Id. at 9. The court further found that as a tenant without authorization to exercise the rights of the landowner, Associates lacked standing to challenge the validity of the ordinance; and that Associates was not a "person aggrieved" because its use was not a permitted use or development. The Court further ruled that Associates' substantive challenge⁵ to the ordinance was not properly raised before the Board because Associates did not make a written request that the Board hear its substantive challenge, as required by state law; and that in addition to failing to raise its claim that the Board was impermissibly interfering with the state's right to regulate abortion in violation of the Abortion Control Act, 18 PA. CONS.STAT. ANN. §§ 3201 et seq. (2002), "nothing in the Abortion Control Act indicates that the [Code] does not apply or that it preempts the intent of the legislature in adopting the [Code]." Id. at 10-13. Finally, the court found that Associates "had ample notice and opportunity to present evidence and argument." Id. at 14.

Associates has appealed this decision to the Commonwealth Court. (Pis.' Supplemental Br. at 2).

B. The Enforcement Notice

On June 11, 2002, the Township issued an enforcement notice to Associates, requiring it to immediately cease its operations. (Pis.' Supplemental Br., Ex. 6)....