                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-2006

Spradlin v. Danville
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1051




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Recommended Citation
"Spradlin v. Danville" (2006). 2006 Decisions. Paper 617.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/617


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                                         NOT PRECEDENTIAL
             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT

                           NO. 06-1051
                        ________________

                     GILFRED L. SPRADLIN,
                               Appellant

                                 vs.

          BOROUGH OF DANVILLE, a municipal corporation;
    DANVILLE BOROUGH COUNCIL; THOMAS A. GRAHAM,
                 individually and in his official capacity as
          Danville Borough Secretary; JEANNE D. KIEWLAK,
            individually and in her official capacity as Danville
    Borough Codes and Zoning Administrator; RAE E. LEIGHOW,
            individually and in his official capacity as Danville
     Borough Police Chief; ROBERT W. BUEHNER, in his official
             capacity as District Attorney of Montour County;
       ROBERT L. MARKS, ESQ., individually and in his official
  capacity as Danville Borough Solicitor; MICHAEL P. DENNEHY,
       individually and in his official capacity as Danville Borough
Solicitor; WESLEY R. WERTMAN, individually; WILLIAM ROGERS,
       in his official capacity as Danville Borough Zoning Hearing
     Board Chairman; ALBERT CHURM, in his official capacity as
                       Zoning Hearing Board Member
               ____________________________________

           On Appeal From the United States District Court
               For the Middle District of Pennsylvania
                     (D.C. Civ. No. 02-cv-02237)
           District Judge: Honorable James F. McClure, Jr.
           _______________________________________

             Submitted Under Third Circuit LAR 34.1(a)
                          July 27, 2006

     Before: FISHER, ALDISERT AND WEIS, Circuit Judges.

                        Filed August 3, 2006
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

              Gilfred L. Spradlin appeals from an order of the United States District

Court for the Middle District of Pennsylvania, entering a final judgment in favor of the

defendants in his action alleging violations of the Constitution of the United States and

the Constitution and laws of the Commonwealth of Pennsylvania. For the reasons that

follow, we will affirm.1

              Spradlin filed a complaint in December 2002 against the Borough of

Danville, the Borough Council and various Borough officials, including Codes and

Zoning Enforcement official Jeanne Kiewlak, and Danville Borough Solicitors Robert

Marks and Michael Dennehy concerning claims arising from zoning and code issues

related to Spradlin’s property. All parties filed motions to dismiss or for judgment on the

pleadings. On December 10, 2003, the District Court granted Spradlin’s motion to amend

his complaint, and granted in full or in part defendants’ motions.2 The Court listed the

   1
     The parties are already familiar with the facts of this case. Therefore, we limit our
discussion to those facts essential to our decision.
   2
     The thirteenth issue listed in Spradlin’s brief asks “Did the District Court err and/or
abuse it’s [sic] discretion in dismissing Appellant’s other Claims and Defendants
contained in the amended Complaint as time barred, given the fact Appellant was then
and continues to be denied due process?” Appellant’s Brief at 7. His “Conclusion” also
asks the Court to vacate the December 10, 2003 order “whereby certain claims and
Defendants were dismissed as time barred . . . .” App. Br. at 33. However, these are the
only references to the issues decided in the December 10, 2003 order; the brief is devoid
                                              2
remaining claims as follows:3 (1) substantive and procedural Due Process claims against

the Borough of Danville, Danville Borough Council, Danville Solicitors, and Danville

Codes and Zoning Enforcement Official regarding the sufficiency of the zoning violation

appeal process listed in Counts VII, IX and XI; (2) a claim in Count IX for an

unreasonable administrative search of his property; (3) a claim for tortious interference

with contractual relations against Danville Solicitors in Count X; (4) a state claim for

malicious prosecution against the Borough of Danville, Danville Borough Council,

Danville Solicitors, and Danville Codes and Zoning Enforcement Official in Count XI;

(5) a claim against the Borough of Danville, Danville Borough Council and Solicitor

Marks in Count XIII that his rights to freedom of speech and equal protection were

violated.

               In an order entered December 7, 2005, the District Court dismissed all

claims against Danville Borough Council as redundant of the claims against Danville

Borough4 and granted the summary judgment motions of the remaining defendants.

Spradlin timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our



of any argument in support of the issues. We therefore find that Spradlin waived his
appeal with regard to these claims. F.D.I.C. v. Deglau, 207 F.3d 153, 169-70 (3d Cir.
2000).
   3
       We have renumbered some of the claims.
   4
      The District Court dismissed the complaint against Danville Borough Council as
redundant of the claims against Danville Borough, as the Borough would ultimately be
liable for any violation by the Council. As Spradlin does not contest this ruling, we need
not discuss it further.
                                             3
review of the District Court’s order is plenary. Kautz v. Met-Pro Corp., 412 F. 3d 463,

466 (3d Cir. 2005).

                                              I.

              Spradlin’s brief lists numerous issues and sub-issues but the “Argument”

section of Spradlin’s brief only includes argument on the due process claims. However,

we will generously construe Spradlin’s “Facts of the Case” section to include argument

regarding the unreasonable administrative search. All other issues are deemed waived.

Deglau, 207 F.3d at 169-70. As to the claims that remain, we agree with the District

Court’s thorough analysis, and highlight only a few issues here.

              A.      Due Process Claims

              Spradlin argues that he was denied due process because he was denied a

reasonable opportunity to appeal a Notice of Violation sent by the Codes and Zoning

Enforcement Official on September 7, 2000. He argues that the five-day appeal period

provided was unreasonable. The District Court properly noted that where there is an

available appeal process, a due process claim does not accrue “unless and until the State

fails to provide due process.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). A

plaintiff must take advantage of the processes that are on the books unless those processes

are “unavailable or patently inadequate.” Id. We agree with the District Court that the

five-day period allowed is not “patently inadequate,” as it would not be difficult to create

a simple statement setting forth the section of the Notice in dispute, the reason for the

dispute, and a request for a hearing before the Zoning Hearing Board within a period of

                                              4
five days.5

               Similarly, Spradlin argues that he was denied a right to appeal a Stop Work

Order issued on or about January 15, 2001 and a Correction Notice, issued on October 9,

2001, which alleged violations of the BOCA Codes,6 as a BOCA Code Appeals Board

was not empaneled at the time the violation notices were issued. Again, however, no due

process claim accrued. Spradlin may not prove a due process violation based on

speculation that the Borough would not have promptly empaneled an Appeals Board had

he attempted to file an appeal.

               B.     Unreasonable Search

               We agree with the District Court that Codes and Zoning Administrator

Jeanne Kiewlak’s search of Spradlin’s property was not unreasonable. Spradlin had

notice that Kiewlak had rescheduled the search for December 14, 2000, but did not object

or try to reschedule. Although Spradlin was not present at the time of the search, one of

his employees was there, and he voluntarily escorted Kiewlak throughout the property.

For the reasons stated by the District Court, we agree that Kiewlak was entitled to rely on

the employee’s apparent authority to consent to the search, and that the employee did in

fact have the ability to furnish valid consent. Thus, the search was not unreasonable.

               C.     Claims Against Danville Solicitors


   5
    We further agree with the District Court that the provisions Spradlin cites for the
proposition that a thirty-day appeal period is required are not applicable.
   6
       These are national building codes that Danville Borough had adopted by ordinance.
                                             5
               We add one remark concerning the claims against the Danville Solicitors.

The District Court stated that it was “unable to identify the alleged conduct of the

Solicitor Defendants that Spradlin claims denied him of his rights.” Dist. Ct. Op. at 7.

We similarly find that Spradlin’s allegations that the Solicitors were involved in the

enactment of the ordinances at issue here and his conclusory allegations of conspiracy are

not sufficient to establish any type of constitutional violation.

                                              II.

               For the reasons stated above and the reasons given by the District Court, we

will affirm.




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