WILLIAMSPORT — A federal judge has dismissed the "crematory lawsuit" brought against Kulpmont Borough and its officials.

In a 30-page order issued Thursday, U.S. District Judge Malcolm Muir granted the summary judgement, or dismissal, sought by the defendants, effectively ending the lawsuit, barring an appeal.

The lawsuit was filed last year against the borough, its council members, mayor and other officials by C.J. Lucas Funeral Home and Oak Lane Crematory Inc., which had announced plans to construct a crematory in a garage at 1054 Oak St., Kulpmont, behind its business at 1053 Chestnut St.

The borough, in response to public outcry, passed a pollution-control ordinance that Lucas and Oak Lane claimed was discriminatory and created specifically to stop the crematory.

Muir's ruling dismisses the claims against borough treasurer Paul Niglio, former borough secretary Frank Chesney, Mayor Robert Slaby and council members Joseph Winhofer, Myron Turlis, James Wisloski, Bruno Varano, Ann Martino, Clarence Deitrick and Michael Fantanarosa.

However, he left open the right for Lucas and Oak Lane to pursue their claims in state court.

"I am absolutely delighted about his decision," Slaby said Friday afternoon. "It just goes to show that the courts ... saw fit to protect the people of our community."

He said Muir recognized the need for the air-pollution control ordinance in light of Kulpmont's lack of local zoning, and the fact that the state Department of Environmental Protection didn't stop the project.

"I hope it brings closure," Slaby said. "That's up to Lucas."

Funeral home owner Charles Lucas referred questions to his attorney, James P. Wallbillich, who did not return a phone call Friday seeking comment.

C.J. Lucas Funeral Home and its affiliated Oak Lane Cemetery filed the civil rights complaint against the defendants on Feb. 13, 2007. After a number of court rulings and filings regarding the case over the next 12 months, attorney Thomas Gallagher, representing the borough, asked for the summary judgement on Feb. 1. The plaintiffs' filed a response on Feb. 28 and, four weeks later, Muir issued his ruling.

Legitimate interest

The ordinance prohibits or prevents any person or entity from maintaining, directing, constructing, utilizing, or operating air polluting facilities within 300 yards of any residential property in the borough. The ordinance also prohibits air-polluting facilities from being located in close proximity to residential properties.

The ordinance does not apply to facilities already constructed and in operation as of its effective date.

In his order, Muir said the plaintiffs remain able to construct their own crematory at other locations consistent with Pennsylvania laws and regulations.

He said borough council members had a legitimate interest in adopting the ordinance to protect the health, safety and welfare of borough residents, and that council members objected to the placement of a crematory at the proposed site because of its proximity to residential properties.

Claims by the plaintiff of violating substantive due process, procedural due process, procedural equal protection and taking (eminent domain) were dismissed by Muir.

Muir said the defendants' actions cannot be characterized as arbitrary or "conscience shocking" in a constitutional sense.

The judge also ruled that no reasonable finder of fact could conclude that any pre- or post-deprivation violation of the plaintiffs' due process rights occurred.

Muir said the air pollution control ordinance is not irrational or wholly arbitrary.

In the fourth claim filed by the plaintiffs regarding eminent domain, Muir said it is undisputed in this case that the plaintiffs have not yet attempted to avail themselves of those procedures, making the claim premature.

In citing case law, the judge said summary judgment is appropriate only when there is no "genuine issue of material fact" that is unresolved, and the moving party is entitled to a judgment as a matter of law.

Wallbillich, in his response to the request for summary judgement, had claimed his clients' rights of due process were violated, and that the lawsuit should proceed.

"The legislation was designed to stop the Lucas project," he said about the ordinance. "The legislation was not, in advance of its adoption, understood by the legislators (borough council members). They still do not know how it necessarily would cure alleged air pollution evils, and they have no idea how it would affect people who would attempt to comply. But the sense is that it would satisfy citizen outcry because it would stop the Lucas project."

Wallbillich said the ordinance was being selectively enforced.

But Muir did not agree.

"In our view the ordinance's underlying goal of limiting the emission of certain substances, including mercury, into the air in close proximity of residences and a public park is rational," he wrote. "The totality of the evidence presented to us leads us to conclude that no rational trier of fact could find that the ordinance is irrational or wholly arbitrary."

Slaby said other communities have been closely watching this case, and believes Muir's ruling could establish precedence for other communities fighting crematories.

©The News Item 2008

Source: http://www.zwire.com/site/news.cfm?newsid=19435462&BRD=2715&PAG=461&dept_id=558782&rfi=6

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