Mary Beth's Towing LLC v. Borough of Brownsville

• Decision Date: 13 April 2018
• Docket Number: 2:16-cv-00452
• Parties: MARY BETH'S TOWING LLC, Plaintiff, v. BOROUGH OF BROWNSVILLE, STANLEY JABLONSKI, and LESTER J. WARD, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

MARY BETH'S TOWING LLC, Plaintiff, v. BOROUGH OF BROWNSVILLE, STANLEY JABLONSKI, and LESTER J. WARD, Defendants.

2:16-cv-00452

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 13, 2018

Chief Judge Joy Flowers Conti

MEMORANDUM OPINION

CONTI, Chief District Judge.

I. INTRODUCTION

Pending before the court is the October 16, 2017 motion for summary judgment filed by the Borough of Brownsville ("Borough"), Stanley Jablonski ("Chief Jablonski"), and Lester J. Ward ("Mayor Ward") (collectively, "defendants"), pursuant to Federal Rule of Civil Procedure 56(a). (ECF No. 54). Defendants seek judgment as a matter of law with respect to all claims contained in the second amended complaint filed by Mary Beth's Towing, LLC ("plaintiff") on January 6, 2017. (ECF No. 34). In Counts I and II of the second amended complaint, plaintiff claims that defendants directed business to a male-owned competitor in violation of the Equal Protection Clause of the Fourteenth Amendment.¹ This court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). For the reasons that follow, defendants' motion will be GRANTED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a Pennsylvania-registered limited liability company owned solely by Mary Beth Stanislaw ("Stanislaw"). (Combined Concise Statement of Material Facts (ECF No. 65) ("C.S.") ¶ 1). Stanislaw organized plaintiff in or about January 2012, and plaintiff conducts regular business in Fayette County, Pennsylvania. (C.S. ¶ 53). Plaintiff was physically located in Fairbank, Pennsylvania, until relocating to Cardale, Pennsylvania - approximately 1.5 miles closer to the Borough, but still several miles away. (C.S. ¶ 54; ECF No. 62-1 at 4). Stanislaw runs the business with the help of her husband, as well as her son and mother. (C.S. ¶¶ 8 - 11). While plaintiff provides some remuneration for the Stanislaw family members' services, it does not employ regular staff. (C.S. ¶¶ 6, 9, 11).

On or about January 29, 2013, Stanislaw presented the Borough with all documentation necessary for plaintiff's inclusion in the Borough's towing rotation, including licenses and proof of insurance. (C.S. ¶ 55). Stanislaw called attention to her status as "one of the few licensed female salvors in PA." (C.S. ¶¶ 55 - 56). On or about February 12 and March 12, 2013, Stanislaw appeared before the Borough council to request plaintiff's inclusion in the towing rotation. (C.S. ¶¶ 57, 59). Following these meetings, the Borough council deemed plaintiff qualified to provide towing services for the Borough. (C.S. ¶¶ 44, 62). Stanislaw received a letter from the Borough on April 11, 2013, confirming that plaintiff was on its "towing rotation." (C.S. ¶¶ 14, 61; ECF No. 54-4). Plaintiff has remained an approved tower since it was added to the towing rotation in 2013.² (C.S. ¶ 62).

With respect to utilization of approved towers, it is Borough policy³ for police officers responding to a disabled vehicle to first ensure that the vehicle is not a hazard, and if so, to arrange for it to be immediately moved. (C.S. ¶ 20; ECF No. 54-9 at 1). A responding officer, however, when it is feasible should attempt to ascertain ownership of the car and determine the owner's towing preference. (C.S. ¶ 21; ECF No. 54-9 at 1). If the owner has no preference or is unresponsive, the vehicle is abandoned, or the situation is such that the vehicle must be removed without first consulting the owner, the towing regulations direct that an approved tower must be chosen by Borough police per the "rotation procedure." (ECF No. 54-9 at 1). "Rotation procedure" is not defined. (ECF No. 54-9 at 1). Mayor Ward⁴ and Chief Jablonski⁵ both testified that when circumstances require a Borough police officer to choose an approved tower to remove a vehicle, the procedure has always been for the responding officer to call the closest approved tower. (ECF Nos. 62-4 at 14 - 15; 62-5 at 12). Stanislaw was not provided with a copy of that policy, or informed about this process, when plaintiff became an approved tower for the Borough. (ECF No. 62-1 at 5).

The Borough does not have a full-time police force; the Pennsylvania State Police ("State Police") respond to emergency calls within the Borough at certain times of the day. (C.S. ¶ 13). During those times, the State Police are not bound by the Borough's list of approved towers. (C.S. ¶ 13). The State Police have referred business to plaintiff. (C.S. ¶ 13). From the time of its addition to the Borough's rotation, plaintiff received only one referral from the Boroughpolice department. (C.S. ¶¶ 15, 38, 63). Based on the most up-to-date towing logs,⁶ that single referral was in 2013. (ECF No. 62-13 at 7). That same year, VanDivner Towing ("VanDivner") received 44 calls. (ECF No. 62-13 at 7). VanDivner received 32 calls in both 2014 and 2015. (ECF No. 62-13 at 8 - 9). Plaintiff received none.

On or about February 10, 2015, Stanislaw and her husband appeared at a Borough council meeting to protest the Borough's failure to utilize her services to any significant degree. (C.S. ¶ 67). Mayor Ward explained to Stanislaw that she "was on the rotation list," but "the way it is put in effect is that they usually call the local people and if they are not available then they call the secondary." (ECF No. 62-11 at 2). He stated that, to the extent a vehicle owner specifically requests plaintiff, and plaintiff can respond in a certain amount of time, plaintiff should be used. (ECF No. 62-11 at 2). Regardless, Mayor Ward was not sure why plaintiff had not been used more than once to that point, and an investigation into the matter was to be initiated. (ECF No. 62-11 at 2).

Mayor Ward and Chief Jablonski met to discuss the Borough's towing policy. (C.S. ¶ 70; ECF No. 62-5 at 43). Mayor Ward discovered that "there was nothing in red, white and blue that said they had to go by one, two, three, four, five. Just safety." (ECF No. 62-5 at 9). Chief Jablonski explained that the salvors approved for towing purposes had never before been put in writing; accordingly, he and Mayor Ward wished to clarify which salvors were approved, and under what circumstances each was to be contacted pursuant to the "rotation procedure." (ECF No. 62-4 at 23, 32, 41). A letter was drafted by Chief Jablonski identifying VanDivner as the Borough's "primary" tower, and plaintiff as a "secondary" tower. (C.S. ¶ 76). Weld Towingwas identified as an approved tower for heavy equipment and tractor trailer removal. (ECF Nos. 54-7 at 4; 54-9 at 2). The Borough did not include any other companies in its list of approved towers. The letter was ultimately circulated within the Borough's police department on or about August 28, 2015. (C.S. ¶ 77; ECF No. 62-7 at 2).

Mayor Ward and Chief Jablonski asserted that the primary and secondary classifications were based upon VanDivner's location in Brownsville.⁷ (C.S. ¶ 66; ECF Nos. 54-6 at 4; 54-7 at 3). Due to its proximity to calls coming from the Borough police, VanDivner was considered to be the most efficient option. (ECF Nos. 54-6 at 4; 54-7 at 3). If VanDivner could not respond quickly enough, only then would plaintiff be contacted due to its location outside the Brownsville area and presumably slower response time. (C.S. ¶ 36; ECF Nos. 54-6 at 4 - 5; 54-7 at 4). Although these classifications had never been formally memorialized prior to 2015, Mayor Ward would later testify that VanDivner's had always been treated as the de facto primary tower⁸ by Borough council and Borough police because of VanDivner's location in the Brownsville area. (ECF No. 62-5 at 8 - 11). Chief Jablonski was not aware of when he learned that VanDivner's was considered the primary tower for the Borough, except that it was sometimeprior to 2015.⁹ (ECF No. 62-4 at 34). Similarly, he was not entirely certain of when he learned about plaintiff's secondary status.¹⁰ (ECF No. 62-4 at 33 - 34). Robert VanDivner, owner of VanDivner's Towing, was never told that he was the Borough's "primary" tower. (ECF No. 62-19 at 12).

Stanislaw was likewise never informed that the Borough considered her business to be a "secondary source;" she had not seen a Borough policy identifying her that way. (C.S. ¶ 9; ECF No. 62-1 at 14). There is no Borough policy that dictates a tower must respond to a call within a certain timeframe. (C.S. ¶ 82). Stanislaw asserts that plaintiff can respond to a call in the Borough in as little as seven or eight minutes, and there was no prior indication that plaintiff was not capable of responding to calls in what the Borough considers to be a timely manner. (C.S. ¶ 83; ECF Nos. 54-3 at 11; 54-6 at 5). Records show that VanDivner Towing generally responded to calls within eight to fifteen minutes. (C.S. ¶ 86).

Plaintiff filed an initial complaint in this court on April 15, 2016. (ECF No. 1). The operative second amended complaint followed on January 6, 2017. (ECF No. 34). Plaintiff argues that the Equal Protection Clause of the Fourteenth Amendment was violated due to both sex-based discrimination in utilization of approved towers, as well as plaintiff's status as a "class of one" subject to irrational and arbitrary treatment by the Borough. Defendants filed the presentmotion for summary judgment on October 16, 2017. (ECF No. 54). The matter was fully briefed as of January 12, 2018, and is ripe for disposition. (ECF Nos. 55 - 56, 60 - 65).

III. STANDARD OF REVIEW

A grant of summary judgment is appropriate when the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Heffernan v. City of Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))....