2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-5-2011

George Koynok v. Thomas Lloyd

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1955

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1955

___________

GEORGE L. KOYNOK,

Appellant

v.

THOMAS R. LLOYD, Mayor of Dormont Borough;

JOSEPH M. COSTANZO, former President of Dormont Borough Council;

KRISTEN DENNE, former Assistant Manager of Dormont Borough;

THOMAS H. AYOOB, III, Solicitor of Dormont Borough; 

PATRICK KELLY, Building Inspector/Code Enforcement Officer; 

RUSSELL J. MCKIBBEN, former interim Borough Manager and Police Chief of 

Dormont Borough, BOROUGH OF DORMONT 

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 06-cv-1200)

District Judge: Honorable Arthur J. Schwab

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 3, 2011

Before: SLOVITER, FISHER AND WEIS, Circuit Judges

 (Opinion filed January 5, 2011) 

_________

OPINION

_________

PER CURIAM.
2

George Koynok appeals from an order of the District Court granting 

summary judgment to Dormont Borough and several of its past and present employees 

(Appellees). We will affirm.

I.

For over fifty years Koynok has owned a multi-level residential building at 

2850 Glenmore Avenue in Dormont Borough, which is part of the Pittsburgh 

metropolitan area. After the Dormont Borough Zoning Hearing Board (the ZHB) and the 

Pennsylvania courts rejected Koynok‟s recent attempts to have his property function in 

part as a for-profit boardinghouse, Koynok filed suit in federal court. The District Court 

concluded that Koynok‟s “cause of action is nothing more than a „spin-off‟ of a state 

court action, that it suffers a fatal Rooker-Feldman defect, and that it must, therefore, be 

dismissed with prejudice.”1 We vacated the District Court‟s decision and remanded 

because the record was insufficiently developed for a proper Rooker-Feldman analysis. 

See Koynok v. Lloyd, 328 F. App‟x 133, 137-38 (3d Cir. 2009).

Thereafter, Koynok moved for and was granted leave to file an amended 

complaint. In the amended complaint, Koynok essentially claimed that, in preventing 

 

1 The District Court was referring to the Rooker-Feldman doctrine, which “takes its 

name from the only two cases in which the Supreme Court has applied it to defeat federal 

subject-matter jurisdiction: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and 

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).” Great W. 

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 164 (3d Cir. 2010).
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him from operating 2850 Glenmore Avenue as a boardinghouse, Appellees violated 

Koynok‟s Fourteenth Amendment rights to procedural due process, substantive due 

process, and equal protection under the law. Appellees filed their answer to Koynok‟s 

amended complaint and then moved under Federal Rule of Civil Procedure 12(c) for 

judgment on the pleadings. The District Court denied Appellees‟ motion “without 

prejudice to . . . raising the issues set forth therein in a motion for summary judgment at 

the appropriate time following discovery.” Discovery and opposing motions for 

summary judgment followed. By order entered March 5, 2010, the District Court granted 

Appellees‟ motion for summary judgment and denied Koynok‟s motion for summary 

judgment. Koynok appealed. 

II.

We have appellate jurisdiction under 28 U.S.C. § 1291, and our review of 

the District Court‟s grant of summary judgment is plenary. Spence v. ESAB Group, Inc., 

623 F.3d 212, 216 (3d Cir. 2010). We apply the same test as the District Court. Id. 

“Hence, summary judgment is appropriate when there „is no genuine issue as to any 

material fact‟ and the moving party is „entitled to judgment as a matter of law.‟” 

Alabama v. North Carolina, --- U.S. ---, 130 S. Ct. 2295, 2308 (2010) (quoting Fed. R. 

Civ. P. 56(c)).

III. 

Koynok‟s opening brief is filled with arguments that are not germane to 
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whether the District Court erred in granting summary judgment for Appellees on 

Koynok‟s Fourteenth Amendment claims.2 Because Koynok has been preceding pro se, 

we have liberally construed his arguments on appeal. See Erickson v. Pardus, 551 U.S. 

89, 94 (2007) (per curiam). Nevertheless, we conclude that the District Court‟s grant of 

summary judgment for Appellees was correct. 

First, we agree with the District Court that Appellees were entitled to 

summary judgment on Koynok‟s procedural due process claim. In particular, the District 

Court correctly determined that Koynok cannot show that he was deprived of due process 

during the 2003 ZBH proceedings because Koynok failed to take advantage of all 

available avenues for appellate review. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 

2000) (“In order to state a claim for failure to provide due process, a plaintiff must have 

taken advantage of the processes that are available to him or her . . ..”). We also 

conclude that, with respect to the subsequent “special exception” action, Koynok was 

afforded all process he was due; it is evident from the record that both the ZHB and the 

Pennsylvania courts conducting appellate review took great pains to discern and 

 

2 For example, Koynok argues that this Court must void the 2006 ZHB decision denying

his request for a “special exception” to use 2850 Glenmore Avenue as a boardinghouse. 

We cannot and will not. The 2006 ZHB decision was upheld by the Pennsylvania 

Supreme Court and, as our previous opinion in this case should have made clear to 

Koynok, “[t]he Rooker-Feldman doctrine divests federal courts of subject matter 

jurisdiction where a federal action „would be the equivalent of an appellate review‟ of a 

state court judgment.” Koynok, 328 F. App‟x at 136 (quoting FOCUS v. Allegheny 

County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)).
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comprehensively evaluate Koynok‟s rather convoluted arguments. 

Second, we agree with the District Court that Appellees were entitled to summary 

judgment on Koynok‟s substantive due process claim. “Land-use decisions are matters 

of local concern, and such disputes should not be transformed into substantive due 

process claims based only on allegations that government officials acted with „improper‟ 

motives.” United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA, 316 F.3d 392, 

402 (3d Cir. 2003). Instead, a land-use decision “violates substantive due process only 

when it shocks the conscience.” Id. at 399-400. Such a characterization is reserved for 

truly egregious official conduct, see id., and not for the conduct at issue in Koynok‟s 

ongoing dispute with Dormont Borough. See Eichenlaub v. Twp. of Indiana, 385 F.3d 

274, 286 (3d Cir. 2004).3

Finally, we agree with the District Court that Appellees were entitled to 

summary judgment on Koynok‟s equal protection claim. To withstand summary 

judgment, Koynok needed to identify at least one disputed material fact that would result 

in a genuine issue as to whether the ZHB intentionally and with no rational basis treated 

 

3 The record suggests that for many years Appellees knew of, but were not overly 

concerned with, Koynok‟s non-conforming use of 2850 Glenmore Avenue as a 

boardinghouse. However, the non-conforming use roused Koynok‟s neighbors, who 

complained of parking and property value issues. (2003 ZHB decision, Supp. App‟x at 

51); (E-mail to Patrick Kelly, Supp. App‟x at 187) (“The northern side of Glenmore 

Avenue is one of the borough‟s more highend [sic] streets, and those of us who live there 

would like to keep it that way.”). There is nothing conscience-shocking about Appellees‟ 

concerted effort to simultaneously alleviate public concern and enforce local law. 
6

Koynok differently from his peers when the requests for authorization to use 2850 

Glenmore Avenue as a boardinghouse were rejected. See Village of Willowbrook v. 

Olech, 528 U.S. 562, 565 (2000) (per curiam).4That standard “is doubtless difficult for a 

plaintiff to meet in a zoning dispute,” Eichenlaub, 385 F.3d at 286, and Koynok produced 

no evidence in the District Court showing that he could meet it.5

IV.

For the reasons given in this opinion, we will affirm the judgment of the 

District Court.

 

4 As Appellees correctly note, “Koynok does not plead that he is a member of a suspect 

class,” but “the court can imply that he is asserting his equal protection claim as a „class 

of one.‟” (Appellees‟ Br. at 26.)

5 In their motion for summary judgment, Appellees argued that “Koynok has failed to 

state a cause of action as to the individual Defendants” on the basis of qualified 

immunity. Because Koynok put forth no evidence that the individual defendants violated 

his constitutional rights, as explained above, the District Court correctly determined that 

they were entitled to qualified immunity. See Pearson v. Callahan, --- U.S. ---, 129 S. Ct. 

808, 815-16 (2009).