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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH DIVISION
HIRA EDUCATIONAL SERVICES OF ) CASE NO: ___________ NORTH AMERICA, )
)Plaintiff, )
)vs. ) CIVIL ACTION
) FRANK AUGUSTINE, in his official ) capacity as Chairman of the Board of ) Supervisors of the Township of Shenango, ) Lawrence County, Pennsylvania; ALBERT ) BURICK III, in his official capacity as ) Supervisor and Secretary-Treasurer of the ) Board of Supervisors of the Township of ) PLAINTIFF’S Shenango, Lawrence County, Pennsylvania ) ORIGINAL Pennsylvania; RUSSELL RILEY, in his ) COMPLAINT AND official capacity as Vice-Chairman ofthe ) REQUEST FOR INJUNCTIVE RELIEF Board of Supervisors of the Township of ) AND DECLARATORY Shenango, Lawrence County, Pennsylvania; ) JUDGMENT, AND DAMAGES CURT TOPPER, in his official capacity as ) Secretary of the Pennsylvania Department ) of General Services, JOSHUA ) LAMANCUSA, in his official capacity as ) District Attorney at the Lawrence County ) District Attorney’s Office in Pennsylvania; ) BRUCE LEONATTI, in his official ) capacity as President of the Pittsburgh ) chapter of Act for America; AARON ) BERNSTINE, in his individual capacity as ) State Representative at the PA state House ) of Representatives; CHRISTOPHER ) SAINATO, in his individual capacity as ) State Representative at the PA State House ) of Representatives; and ELDER VOGEL, ) Jr., in his individual capacity as Senator at ) the PA State Senate; )
)Defendants. )
PLAINTIFF’S ORIGINAL COMPLAINT AND REQUEST FOR INJUNCTIVE AND DECLARATORY JUDGMENT, AND DAMAGES
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Plaintiff HIRA Educational Services of North America (“Plaintiff” or “HIRA”) files this
its Original Complaint and Request for Injunctive Relief and Declaratory Judgment, and Damages,
against Defendants Frank Augustine, Albert Burick III, Russell Riley, Curt Topper, Joshua
Lamancusa, and Bruce Leonatti, who are sued in their official capacities, and Aaron Bernstine,
Christopher Sainato, and Elder Vogel, Jr., who are sued in their individual capacities, and in
support thereof shows the following:
I. Jurisdiction and Venue
1. This is a civil action authorized by the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”); 42 U.S.C. § 1981; 42 U.S.C. § 1983; and 28 U.S.C. § 2201, 2202, and is therefore
appropriately brought in this Court under 28 U.S.C. § 1331.
2. This Court has ancillary/supplemental jurisdiction over Plaintiff’s additional state law claim
under the Religious Freedom Protection Act of Dec. 9, 2002, P.L. 1701, No. 214, by way of
28 U.S.C. § 1367, because Plaintiff’s state law claim arises from the same set of facts as
Plaintiff’s federal claims and forms the same case or controversy.
3. The Western District of Pennsylvania Pittsburgh Division is an appropriate venue under 28
U.S.C. § 1391(b)(2), because Lawrence County is where the events giving rise to the claim
occurred.
II. Plaintiff
4. Plaintiff is an Islamic New Jersey-based consulting firm catering to Islamic schools and
organizations that attempted to purchase land in the Township of Shenango in Pennsylvania.
Asif Kunwar is the president, founder, and CEO.
III. Defendants
5. Defendant Frank Augustine is the Chairman of the Board of Supervisors of the Township of
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Shenango, Lawrence County, Pennsylvania (“Shenango Township”). Defendant Augustine,
along with other representatives of the Shenango Township and the state of Pennsylvania, took
actions, including but not limited to the initiation of litigation against Plaintiff, to halt the sale
of the property at issue in this matter. Defendant Augustine is sued in his official capacity.
6. Defendant Albert Burick III is the Supervisor/Secretary-Treasurer of the Board of Supervisors
of the Township of Shenango. Defendant Burick, along with other representatives of the
Shenango Township and the state of Pennsylvania, took actions, including but not limited to
the initiation of litigation against Plaintiff, to halt the sale of the property at issue in this matter.
Defendant Burick is sued in his official capacity.
7. Defendant Russell Riley is the Vice-Chairman of the Board of Supervisors of the Township of
Shenango. Defendant Riley, along with other representatives of the Shenango Township and
the state of Pennsylvania, took actions, including but not limited to the initiation of litigation
against Plaintiff, to halt the sale of the property at issue in this matter. Defendant Riley is sued
in his official capacity.
8. Defendant Curt Topper is the Secretary of the Commonwealth of Pennsylvania’s Department
of General Services (“DGS”). Upon information and belief, DGS refused to grant Plaintiff an
extension to find financing for the sale of the property at issue, unlike similarly situated non-
Muslim landowners, and treated Plaintiff with discriminatory animus. Defendant Topper is
sued in his official capacity.
9. Defendant Joshua Lamancusa is the Lawrence County District Attorney. Defendant
Lamancusa, along with the District Attorney’s Office of Lawrence County, initiated an
investigation of the bidding process in relation to the sale of property at issue in this matter.
Defendant Lamancusa is sued in his official capacity.
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10. Defendant Bruce Leonatti is the President of the Pittsburgh Chapter of Act for America.
Defendant Leonatti is sued in his official capacity.
11. Defendant Aaron Bernstine is a state representative at the Pennsylvania State House of
Representatives for a district outside of the area where the relevant actions occurred. Defendant
Bernstine worked with other local and state leaders to halt the sale of the property at issue.
Defendant Bernstine is sued in his individual capacity.
12. Defendant Christopher Sainato is a Pennsylvania state representative at the Pennsylvania State
House of Representatives who worked with other local and state leaders to halt the sale of the
property at issue. Defendant Sainato is sued in his individual capacity.
13. Defendant Elder Vogel, Jr. is a senator at the Pennsylvania State Senate who worked with
other local and state leaders to halt the sale of the property at issue. He was also the prime
sponsor of “Senate Resolution No. 154,” which is at issue in this matter. Defendant Vogel is
sued in his individual capacity.
IV. Facts
a. Background of the New Castle Youth Development Center
14. Plaintiff incorporates all preceding paragraphs from Sections I-III.
15. The former New Castle Youth Development Center (“YDC”) property, which opened in 1969
and is located at 1745 Frew Mill Road, Shenango Township, Lawrence County, New Castle,
PA 16101, has been vacant since it closed in February 2013.
16. The former YDC facility provided educational services, rehabilitative services, and housing
for juvenile offenders.
17. The YDC property has nearly 150 acres of land and 13 buildings, totaling approximately
236,444 square feet of land.
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18. In 2001, the Shenango Township enacted Ordinance No. 1 and zoned the YDC into the
Industrial Park District. This did not affect the former YDC facility, as its creation predated
the adoption of the zoning ordinance.
19. Commercial schools were among the principal permitted uses for the Industrial Park District.
20. On March 24, 2017, DGS issued an “Invitation to Bid for the Purchase of the New Castle
Youth Development Center” (“Invitation to Bid”), also known as Solicitation No. 94882, with
a deadline for all bids on Wednesday, May 24, 2017.
21. Upon information and belief, the Invitation to Bid was at least the fifth attempt by DGS to
sell the YDC, as four previous solicitations known to Plaintiff, posted on July 11, 2014, June
12, 2015, April 27, 2016, and December 22, 2016, received no adequate bids in response.
22. The Invitation for Bid explains that if more than one bid offering is made, “DGS shall accept
the highest responsible bid submitted and reject any lower Bid Offerings.”
23. The DGS received three responses to the March 24, 2017 Invitation to Bid by the deadline of
May 24, 2017.
24. HIRA submitted the winning bid in the amount of $400,000.00. Subsequently, Plaintiff
received an agreement of sale on May 31, 2017.
25. HIRA intended to implement a juvenile facility similar to the former YDC, with heavier focus
on youth intervention, in most of the property’s buildings. Depending on the financing it was
able to obtain, Plaintiff hoped to use the rest of the facility for an Islamic boarding school. This
boarding school would not have been for refugees, as the Defendants subsequently, and
wrongly, assumed.
26. Mr. Asif Kunwar also submitted a secondary bid on behalf of HIRA, but in his own name, in
the amount of $300,000.00.
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27. Mr. Sumner McDanel submitted the second highest bid in the amount of $305,000.00.
28. Prior to the actions taken by Defendants that are articulated below in this Complaint that
blocked the sale of the YDC, Plaintiff anticipated the sale process being complete by October
2017.
b. Timeline of Events Leading to the Dissolution of the Sale Agreement
29. Plaintiff incorporates herein all paragraphs from the preceding sections, above.
30. On June 6, 2017, Defendants Augustine, Riley, and Burick wrote a letter to DGS to request
information about Plaintiff’s plans for the YDC, and to state their concerns about the proposed
sale.
31. The first concern the Defendant supervisors expressed related to potential tax revenue from
the former YDC facility, because depending upon the nature of the use by Plaintiff, “local tax
revenues could be significantly impacted.”
32. The second concern the Defendant supervisors list was that they wished “to ensure that any
proposed plans for the YDC site will be in conformance with the Shenango Township Zoning
Ordinance.” No further elaboration occurred at this stage, though animus behind this statement
became clear later.
33. The final concern mentioned in this letter was “the potential for collusion amongst the
bidders,” implying that because Mr. Kunwar submitted a bid in his own name while also being
listed as the President and CEO of HIRA, he had somehow colluded (though presumably only
with himself).
34. On June 7, 2017, Defendants Vogel, Sainato, and Bernstine wrote to Pennsylvania Governor
Tom Wolf regarding their concerns of the DGS’s acceptance of Plaintiff’s bid for the YDC.
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35. The Defendants stated that HIRA and its President “failed to remain in good standing with the
State of New Jersey,” because HIRA previously had its corporate status in New Jersey
“revoked for not reporting annual reports for two consecutive years.”
36. The Defendants further wrote that IRS filings for Plaintiff showed the organization reported
gross receipts of not greater than $50,000.00 for tax years 2012, 2014, and 2015.
37. The letter also states that Defendants’ respective offices tried to reach Plaintiff by phone and
were unsuccessful, with voicemails unreturned.
38. As HIRA is an Islamic institution, it closed in observance of the holy month of Ramadan,
which took place approximately from on or about May 27, 2017 to on or about June 24, 2017.
Accordingly, Mr. Kunwar did not answer any calls from the state and local officials during this
time, as HIRA was closed and there were no relevant deadlines pending during that time.
39. The last concern articulated in Defendants’ letter was that there was “appropriate paperwork
left unsigned.” The three concluded their letter by requesting a written response from the
Pennsylvania governor, and an in-person meeting with him.
40. Defendant Bernstine signed this letter, despite the fact that he did not represent Lawrence
County or, accordingly, the Shenango Township, which are represented by Defendant Vogel
in the Pennsylvania State Senate and Defendant Sainato in the Pennsylvania State House of
Representatives.
41. On June 8, 2017, the Board of Supervisors of the Shenango Township held its monthly
meeting and discussed the sale of the YDC property to Plaintiff.
42. The meeting drew such a large crowd that the local fire department had to put a safety limit
on the number of people allowed inside of the building, with dozens of remaining attendees
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sitting outside. The townspeople were screened with a metal detector before being allowed at
the meeting.
43. The sale to Plaintiff was permitted as a topic of discussion, despite the fact that the Shenango
Township was not a party to the contract for the sale of the YDC property.
44. The Defendant supervisors conceded at the meeting that the Shenango Township had nothing
to do with the sale of the property, and that the Commonwealth of Pennsylvania owned the
YDC, and was managing the sale.
45. At the meeting, Defendant Augustine said, “to be clear, Shenango Township’s concerns have
nothing to do with religion, race, or national origin. Our concern is that the state has provided
us with little information about the proposed sale.”
46. But Troy Thompson, DGS press secretary, stated in a prior news report that the supervisors
were in fact notified of the bids received as a “courtesy.” He also stated that the YDC is a state
property and that, therefore, the state is “not obligated” to inform the supervisors of any details
of the sale.1
47. Nonetheless, those in charge of the meeting took up the topic of the sale, and allowed local
townspeople to speak about how they were unhappy with the sale of the YDC going to an
Islamic institution. Local news reports and the meeting’s minutes note comments by the
townspeople, such as claiming (without basis in fact) Plaintiff is part of the “Muslim
1 Mary Grzebieniak, State: Bid accepted for YDC property, NEW CASTLE NEWS, June 1, 2017, http://www.ncnewsonline.com/news/state-bid-accepted-for-ydc-property/article_18b00dfc-4649-11e7-a155-8f5615086c5e.html.
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Brotherhood,” asking “will a mosque be built,” and saying “we gotta work together, and we
gotta make sure that we are alert to know what is our enemy, what is built around us.”2
48. Plaintiff successfully returned a signed agreement of sale by the deadline of June 15, 2017,
which satisfied all requirements of Plaintiff to that date.
49. The agreement underwent the Commonwealth signature process, which includes signatures
from the Pennsylvania Attorney General and DGS.
50. After obtaining the required signatures, Plaintiff made the required $32,000.00 deposit, or 8
percent of the purchase price, on or around July 13, 2017. The final step was for Plaintiff to
pay the remainder of the $400,000.00 bid price within 60 days of paying the deposit, or by
September 11, 2017.
51. On June 23, 2017, Shenango Township residents organized a community meeting whose
audience of 250 included Defendants Augustine, Burick, Riley, Bernstine, Sainato, and a
representative from Defendant Vogel’s office.
52. Defendant Bernstine stated at the meeting, without any apparent relevance, that “any national
security-type information we have received has been sent to Rep. Kelly’s office” regarding
Plaintiff. This reference clearly targeted Plaintiff’s religious beliefs and Defendants’
discriminatory assumptions about those beliefs, as no legitimate “national security-type” issues
existed. This comment was meant to harm, and did harm, Plaintiff in the eyes of the audience,
2 Shenangotownship.org, Regular Monthly Meeting, December 14, 2017, http://shenangotownship.org/wp-content/uploads/2017/02/Monthly-Meeting-Minutes-June-8-2017.pdf (last visited Feb. 12, 2018); see also Ralph Iannotti, Shenango Residents Voice Concern About Property Sale to Muslim School Consulting Firm, CBS PITTSBURGH, June 8, 2017, http://pittsburgh.cbslocal.com/2017/06/08/shenango-residents-concern-hira/; Mary Grzebienak, Township cites possible collusion with Hira bid, June 9, 2017, http://www.ncnewsonline.com/news/township-cites-possible-collusion-with-hira-bid/article_96f68f1c-4ce1-11e7-a1d0-83ea1241358a.html.
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as it had no basis in fact or relevance, and implied that national security was in fact implicated
because of Plaintiff’s purchase of the property.
53. At this meeting, Defendant Leonatti of the group Act for America3 stated that he thinks he
knows HIRA’s plan, and that it was “to become an immigration refugee contractor that can
bring in thousands of refugees if they have a facility to house them.” He also stated that “the
YDC is the perfect facility,” and said he was “going to be Paul Revere. I’m here to send out a
warning.” Leonatti identified no basis for these unfounded and inaccurate accusations.
54. Defendant Leonatti told local news outlets that Act for America advises local communities on
how to fight the location of refugee camps in their communities, and that if housing refugees
was HIRA’s plan, the community may find it easier to fight the sale under President Donald
Trump’s administration than it would have been to fight under President Barack Obama’s
administration.4
55. Later, on or about June 28, 2017, Defendant Burick told New Castle News that “a resettlement
center would not fall under any of the approved industrial categories in the zoning ordinance”
because residential facilities are not permitted in industrial zones and the entire YDC acreage
on Frew Mill Road is zoned industrial.5 Again, no one affiliated with HIRA ever referenced a
3 On its website, Act for America says it is “committed to recruiting, training, and mobilizing citizens community by community to help protect and preserve American culture and to keep this nation safe.” 4 Mary Grzebieniak, YDC bidders may be planning refugee camp, speaker says, NEW CASTLE NEWS, June 24, 2017, http://www.ncnewsonline.com/news/ydc-bidders-may-be-planning-refugee-camp-speaker-says/article_9110dede-5882-11e7-a181-672ac20ee9db.html. 5 Mary Grzebieniak, Township zoning would prohibit refugee camp at former YDC location, NEW CASTLE NEWS, June 28, 2017, http://www.ncnewsonline.com/news/township-zoning-would-prohibit-refugee-camp-at-former-ydc-location/article_f6050328-5b7b-11e7-9c6e-9b6e568cc53a.html.
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resettlement center; this was pure unsubstantiated conjecture created by Defendants, without
any founding in fact.
56. Defendant Burick also told New Castle News that comparable uses would be among the special
exceptions, but getting approval for special exceptions or conditional uses would require
proving a hardship either to the township supervisors or the zoning hearing board.6
57. On June 26, 2017, Defendant Vogel introduced Senate Resolution 154 for the General
Assembly of Pennsylvania Senate’s Regular Session 2017-2018.
58. Senate Resolution 154 disapproved part of the Real Property Disposition Plan No. 1 of 2013
(“Disposition Plan”) that allowed for DGS to dispose “approximately 198 acres in the
Shenango Township.” In other words, the Disposition Plan as originally written gave DGS the
authority to sell the YDC, and this Resolution sought to retroactively divest DGS of the
authority to make the sale to Plaintiff.
59. The resolution was adopted in the state Senate by a 34-17 vote on June 27, 2017 and was
referred to the state’s House State Government Committee on June 28, 2017.7
60. On or about June 28, 2017, pursuant to the aforementioned process, Pennsylvania Attorney
General Josh Shapiro signed the sales agreement with HIRA8, despite the Senate Resolution’s
6 Id. 7 Pennsylvania General Assembly, Bill Information – History, Senate Resolution 154; Regular Session 2017-2018, http://www.legis.state.pa.us/cfdocs/billinfo/bill_history.cfm?syear=2017&sind=0&body=S&type=R&bn=154 (last visited Feb. 12, 2018). 8 Mary Grzebieniak, State AG approves YDC sale; Shenango files action, NEW CASTLE NEWS, June 29, 2017, http://www.ncnewsonline.com/news/local_news/state-ag-approves-ydc-sale-shenango-files-action/article_e149b381-6359-5722-a421-185f5249eec9.html.
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enactment. DGS executives later conducted one more review before the agreement was
executed on June 29, 2017. See Exhibit A, attached hereto.
61. Defendants Bernstine and Sainato questioned the speed of the sale, but DGS press secretary
Thompson stated in local news reports that “it was treated just like any other sale” and that
DGS was “just following rules set out by state legislators.”
62. On June 29, 2017, Defendants Bernstine and Sainato presented before the Pennsylvania House
State Government Committee, at which the majority agreed to move the Senate Resolution
forward to the State’s entire House of Representatives.
63. That same day, Defendant Topper of DGS met with Defendant Bernstine, Defendant Sainato,
representatives from Defendant Vogel’s office, and others, who again outlined their biased and
unfounded concerns regarding HIRA, which were based on nothing more than religious and
national origin animus.
64. Despite facing the knowledge that the House State Government Committee approved the
Senate Resolution’s advancement to the entire House of Representatives, and after again
hearing the state officials re-present their objections, Defendant Topper signed the agreement
for the sale of the property on behalf of DGS.9 Topper did so because the sale was valid.
65. Shortly after Ramadan ended, HIRA issued a press release about its plans for the YDC
property, which Ellwoodcity.org published on June 30, 2017.10
9 Mary Grzebieniak, State OKs YDC sales agreement; Bernstine charges “rubber stamp, New Castle News, June 30, 2017, http://www.ncnewsonline.com/news/state-oks-ydc-sales-agreement-bernstine-charges-rubber-stamp/article_ba897076-5d16-11e7-a630-b3707c2b5c4d.html. 10 Hira Founder Gives Insight to Plans for Former YDC, ELLWODCITY.ORG, June 30, 2017, http://ellwoodcity.org/2017/06/30/hira-founder-gives-insight-to-plans-for-former-ydc/.
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66. HIRA did so as a courtesy, despite the fact it was under no obligation to reveal information,
similar to how the DGS did not have to share information since only the DGS and Plaintiff
were parties to the contract of sale.
67. HIRA’s press release addressed how the property would be funded, some of the plans for the
property, and provided assurance that the organization was indeed a non-profit in good
standing. Due to intense Islamaphobia openly expressed in the community, Kunwar
understandably did not feel comfortable describing details of HIRA’s potential plans for a
religious boarding school. The press release accordingly stated the following, in part:
Hira Educational Services of North America (HESNA) plans to use Youth Development Center New Castle, PA for Youth Development purpose. We aim to reopen this facility as Youth Intervention Center instead of Youth Detention Center. It will serve as an alternative and diversion from detention center model. We will achieve this goal utilizing models like JDAI (Juvenile Detention Alternative Initiative) and curriculum based on STEM (Science, Technology, Engineering, Math). The intervention model requires higher level of family involvement, more community service activities as well as one-to-one therapy. JDAI model has been credited for a successful reduction in youth detention centers population in counties nationwide who chose to implement it. Also STEM based curriculum has been proven more engaging while preparing kids for future high paying jobs as Scientist(s), Technologists, Engineers and Mathematicians. HESNA will utilize JDAI model and will also provide STEM focused education to troubled youth. This STEM based curriculum will engage these youth in project based learning. These youth will be trained in the field of science and technology resulting in a future workforce that attracts high paying jobs. This will also help in breaking the poverty cycle as most of these youth come from low income and poor neighborhoods. Furthermore, this project of HESNA will create numerous jobs for local workforce, impacting positively on local economy. The project will be financed through public and private grants sources ranging from local, state and federal government to foundations of Tech giants e.g. Microsoft, Google, Verizon etc.
68. Despite HIRA’s press release not being at all required in order for the sale process to continue,
Defendant Bernstine and his office continued to directly interfere with the contract to which
they were not parties, by harassing Kunwar with phone calls for more information. These acts
are particularly troubling since, as previously mentioned, the YDC is not even located in
Bernstine’s district.
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69. In local news reports about HIRA’s press release, Defendant Bernstine stated that he “will
continue to pursue every avenue possible to uncover information related to this facility and
will continue to call them (HIRA) daily until they pick up their phone.”11 Again, Plaintiff had
no obligation to speak to Bernstine, as he did not represent any party to the contract.
70. Kunwar later nonetheless accommodated Defendant Bernstine’s numerous requests for
information by having a 32-minute phone call with him, which New Castle News reported
Bernstine either published or planned to publish on his state representative Facebook page.12
However, if this video was posted previously, Bernstine has since removed the video from his
page.
71. On or about July 3, 2017, Defendant Lamancusa announced that he and the Lawrence County
District Attorney’s Office initiated an investigation into “the circumstances surrounding the
recent purchase of the Lawrence County Youth Development Center.” 13 Defendants felt
compelled to state in this press release that “the investigation does not focus on the ethnicity
and/or religious views of the purchasing company/representatives or their intended use of the
facility; but rather upon the unorthodox bidding pattern that emerged during the bidding
process.”14
11 Id. 12 Brent Addleman, Kunwar admits to submitted multiple YDC bids, NEW CASTLE NEWS, July 15, 2017, http://www.ncnewsonline.com/news/kunwar-admits-to-submitted-multiple-ydc-bids/article_3df16b1a-68ef-11e7-ae78-37caa7182c70.html/ 13 Nancy Lowry, UPDATE: District attorney’s office confirms probe of YDC sale, July 3, 2017, http://www.ncnewsonline.com/news/update-district-attorney-s-office-confirms-probe-of-ydc-sale/article_bfd798ec-69e3-51e0-b08e-cb5f628365bc.html. 14 Id.
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72. Defendant Bernstine made clear to the New Castle News that “this is another step toward
getting the sale vacated.” 15 Bernstine, again, had no direct authority or rights under the
contract, as he had previously acknowledged.
73. Also on July 3, 2017, the Shenango Township filed a Statement of Claim in the
Commonwealth of Pennsylvania’s Board of Claims, under Docket No. 4170, against DGS.
74. On July 7, 2017, New Castle News reported that the Board of Supervisors planned to hold a
public hearing on zoning changes that would block any type of school on the former YDC
property, despite this being the prior use of the property, and permitted as of the time of the
posting and closing of the bid.16
75. On July 11, 2017, the Shenango Township Planning Commission made a recommendation
regarding zoning towards the Board of Supervisors.
76. On July 12, 2017 and July 14, 2017, the Shenango Township requested that DGS provide
written confirmation that the parties will not close the sale of the former YDC until the Board
of Claims made a determination in the matter. There is no precedent for such a request, and
the Township cited and had no authority to make this request.
77. On July 14, 2017, a Petition for Review, which named Plaintiff as an indispensable party, was
filed by the Shenango Township in the Commonwealth Court of Pennsylvania, under Docket
No. 320 MD 2017, against DGS. The sole purpose of this Petition was to halt the sale. One of
the principal grievances asserted in the Shenango Township’s Petition for Review claims the
15 Id. 16 Mary Grzebieniak, Shenango zoning changes will affect YDC property, NEW CASTLE NEWS, July 7, 2017, http://www.ncnewsonline.com/news/shenango-zoning-changes-will-affect-ydc-property/article_30aaa1bc-62a8-11e7-b0f0-dbaaf68fc1ab.html.
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award of the bid to Plaintiff violated the Non-Collusion Affidavit required in the submission
of every bid, again apparently accusing Mr. Kunwar of colluding with himself.
78. The Petition further asserted that the winning bid of $400,000.00 was “far below the assessed
value of the property,” and there were concerns about paying the taxes and upkeep for a
property worth in excess $3 million dollars. The Petition did not reference the four prior failed
attempts to sell the property.
79. On July 13, 2017, Defendant Bernstine told New Castle News that it is the belief of him and
other House legal advisers that only one body of the legislature needs to vote on the Resolution
to rescind permission, and that bringing it before the House of Representatives would
convolute the legal issues.17 This presumably reflected an attempt to circumvent standard
legislative process.
80. In the July 13 news article, Defendant Bernstine changed his tune and stated that a lawsuit
was possible instead of having the House pass the Resolution.18
81. On or around July 17, 2017, HIRA timely paid a deposit of $32,000.00, consistent with its
obligations under the sale agreement.
82. On August 2, 2017, DGS filed Preliminary Objections to the Statement of Claim in the Board
of Claims suit, and a Brief in Support. In these pleadings, DGS stated that the Board of Claims
lacked subject matter jurisdiction, because the Shenango Township is not a party to the contract
of sale of the former YDC, and because the Township only sought injunctive relief.
17 Mary Grzebieniak, Bernstine, Sainato pursue new strategy to stop YDC sale, NEW CASTLENEWS, July 13, 2017, http://www.ncnewsonline.com/news/bernstine-sainato-pursue-new-strategy-to-stop-ydc-sale/article_cf0029dc-6761-11e7-9c28-b39a210b04e4.html.
18 Id.
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83. The Board of Claims eventually dismissed the Statement of Claim action with prejudice on
September 15, 2017, and the Board ruled its Opinion and Order that the Board did in fact lack
subject matter jurisdiction over the Statement of Claim.
84. On August 10, 2017, a public hearing occurred, addressing a notice to adopt the proposed
zoning amendments from July 18, 2017 and July 27, 2017. The hearing concluded with
Shenango Township adopting Ordinance No. 4 of 2017, which removed commercial schools
from the use of principal authorized uses. This directly affected the property at issue, and upon
information and belief, was directly targeted at HIRA’s stated purpose for the property.
85. The Ordinance also defined commercial schools as the following:
COMMERCIAL SCHOOL: means a secondary or higher education facility primarily teaching usable skills that prepare students for jobs in a trade meeting the state requirements as a vocational facility and/or a post-secondary education institution authorized by the State of Pennsylvania to award associate, baccalaureate or higher degrees.
86. While the new zoning ordinance makes a point to define “Commercial School,” it does not
define any of the other authorized uses that were either added or removed, such as Vehicle
Repair Garage, Light Manufacturing, Manufacturing, Public Utility, and Supply Yard.
Shenango Township singled out this purpose for special definition, because it was singling out
HIRA.
87. On August 15, 2017, counsel for DGS filed Preliminary Objections and a Brief in Support of
the Preliminary Objections for the action in the Commonwealth Court. Similarly, on August
16, 2017, state court counsel for Plaintiff filed Preliminary Objections as well as a
Memorandum of Law in Support of the Preliminary Objections.
88. In the objections, Plaintiff clarified that Kunwar did not collude, under either the
Commonwealth of Pennsylvania’s interpretation or Plaintiff’s, because Kunwar cannot collude
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with himself, as the representative of HIRA, and the process by which to handle multiple bids
by the same entities were specifically addressed in the rules governing the bid.
89. On or around August 30, 2017, the sale agreement was nullified and voided because neither
Plaintiff nor the State could meet the required terms to bring the sale to a close.
90. Plaintiff could not obtain the necessary funding by the August 28, 2017 deadline to pay the
$360,000.00 balance, due to the actions of the Defendants, as no banks or lending institutions
would loan money while litigation involving the sale of the property remains pending. This
inability came as a direct result of the actions of the Defendants to interfere with Plaintiff’s
properly obtained contract. In addition, the dozens of news articles, the criminal investigation,
and the actions in the Senate and House of Representatives created a strong chilling effect on
Plaintiff’s ability to obtain even conditional financing for the property.
91. The Commonwealth of Pennsylvania also could not meet its end of the bargain, as the State
could not deliver a property that was free from lawsuits, and could no longer guarantee that
there was no pending litigation against the property, unlike when the sales agreement was first
executed. Nonetheless, despite its own inability to comply with its obligations under the
contract, DGS refused to extend the date for full funding or allow HIRA an exception, given
the extenuating circumstances. Upon information and belief, such extensions and/or exceptions
have been allowed for other, non-Muslim entities in the past, particularly when litigation
regarding the relevant property is the reason for seeking an extension.
92. On September 15, 2017, the Shenango Township filed answers to the Preliminary Objections
of both HIRA and DGS, as well as briefs in opposition to those objections.
93. The Commonwealth Court of Pennsylvania issued an Order on September 25, 2017, setting
argument for the preliminary Objections and Responses on October 11, 2017 at 10:00 a.m.
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However, Shenango Township Solicitor Louis Perrotta filed a Praecipe for Discontinuance on
September 25, 2017.
94. The Commonwealth Court of Pennsylvania discontinued the matter after consideration of the
praecipe to discontinue on September 26, 2017, since the bid fell through and the case became
moot.
c. The YDC Property’s Sale to LCCAP
95. Plaintiff incorporates all preceding paragraphs above by reference herein.
96. On October 6, 2017, after the sale of the YDC property to Plaintiff fell through, DGS issued
another “Invitation to Bid for the Purchase of the New Castle Youth Development Center”
(“New Invitation to Bid”) under Solicitation No. 9491. .
97. The New Invitation to Bid required a minimum acceptable submission of $300,000.00, similar
to the March 2017 Invitation to Bid which Plaintiff originally won. The deadline for bid
submissions was December 5, 2017.
98. The New Invitation to Bid mentioned Ordinance No. 4 and stated that it “made specific
changes to the Industrial Park District.”
99. The New Invitation to Bid retained the below, which was contained in the Original Invitation
to Bid which Plaintiff won. This reaffirms that Plaintiff was not guilty of any collusion:
If a bidder submits more than one Bid, DGS shall accept the highest responsible Bid and reject any lower Bids submitted by such bidder. DGS will consider separate Bids submitted by related parties, including by individuals who are employees, officers or otherwise affiliated with another bidder, to be submitted by the same bidder for this purpose. (emphasis added)
100. In an attempt to get the property without the need for court intervention, Plaintiff submitted
a timely bid in good faith, of $500,000.00, on the YDC property.
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101. The other bids included two from Frewmill Road Property, LLC from Pittsburgh, PA. This
company filed its Certificate of Organization on November 30, 2017, less than a week before
the deadline for the New Invitation to Bid.
102. Upon information and belief, neither Defendant Lamancusa nor the Lawrence County
District Attorney’s Office launched an investigation against Frewmill Road Property for
submitting two bids, contrary to the treatment of Plaintiff by Defendants for the same action.
103. On December 5, 2017, Allied Coordinated Transportation Services submitted the winning
bid on behalf of its parent agency, the Lawrence County Community Action Partnership
(“LCCAP,”) which is listed as a state-funded organization, in the amount of $2,000,000.00.
104. New Castle News reported that Defendants Bernstine and Sainato promised to work with
LCCAP to ensure the agency secured the funding to realize its plans. At the risk of
understatement, this is inconsistent with the Defendants’ treatment of Plaintiff’s prior winning
bid. Defendants actively worked to prevent Plaintiff from securing funds to realize Plaintiff’s
plans.
105. LCCAP CEO Tom Scott, in a video posted on December 5, 2017 on Bernstine’s Facebook
page, stated that the organization will likely reach out to the other bidders for the use of the
property, saying what “we will be reaching out to others who bid on the property to see what
activities they would like to bring to community. There is no reason not to bring others in."19
106. To this day, LCCAP has not contacted Plaintiff about using any part of the property.
19 Facebook, PA State Rep. Aaron Bernstine, Videos, HUGE NEWS FOR LAWRENCE COUNTY! YDC Sold for$2,000,000… and creating 275 JOBS!!!, https://www.facebook.com/repbernstine/videos/vb.1871400736426991/2066806970219699/?type=2&theater (last visited Feb. 12, 2018).
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107. According to LCCAP’s website, LCCAP’s plans for redevelopment include a county-wide
STEM program for school districts, special student needs programs, a primary health clinic or
urgent care facility, a new bus facility, a file storage facility, a greenhouse programs for
students, a gym, a swimming pool, an auditorium, community space, and short-term housing
for fire victims.20 Several of these intended uses are similar to those stated by Plaintiff, and
also violate the zoning ordinance in place at the time of LCCAP’s bid.
108. Defendant Burick confirmed to the New Castle News that the LCCAP plans for educational
facilities, health care, short term housing, and others do not conform to the industrial zoning
required by the property’s location. Burick stated that in order for LCCAP to carry out its stated
plans, the new owners would “have to submit a curative amendment or file an application for
a conditional use.”
109. Upon information and belief, no such requests for zoning requests have been received by
Shenango Township.
110. The described uses of the property likely mean that the revitalized YDC property will be
tax-exempt, as would HIRA’s use have been.
111. On April 4, 2018, New Castle News published an article entitled “LCCAP takes over
former YDC with big plans”21 which articulated the intended uses of the property by LCCAP.
These plans were described by LCCAP Executive Director Tom Scott as including
“educational services like the STEAM Academy,” “early learning programs,” “short term
20 Lawrence County Community Action Partnership, YDC Property Awarded to LCCAP, Dec.12, 2017, https://lccap.org/ydc-property-awarded-lccap/ (last visited Feb. 12, 2018). 21 Nancy Lowery, “LCCAP takes over former YDC with big plans,” NEW CASTLE NEWS, April 4, 2018, http://www.ncnewsonline.com/news/lccap-takes-over-former-ydc-with-big-plans/article_aecb4cca-3798-11e8-ab17-231422a6e830.html.
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housing for victims” of residential fires, “classrooms and programs for special needs students”
and “veterans housing.”
112. Mr. Scott also claimed in this article that he “is partnering with others who bid on the
property last year, including Regulus Energy LLC of Towanda, New York” for recycling
purposes.
113. Neither Mr. Scott nor anyone else connected with LCCAP has contact HIRA about
partnering for use of the facilities, despite HIRA being a prior bidder as well.
114. The April 4, 2018 article also quotes James Farris Jr., who is described as “director of
corporate assets for Lawrence County Social Services and Allied Coordinated Transportation
Services, which are sub-agencies under the LCCAP umbrella.” Mr. Farris refers to the
LCCAP’s intent for the property to be, in part, “an inviting, sprawling college campus” when
complete.
V. Causes of Action
a. Violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) against Defendants Augustine, Burick, Riley, Topper, Lamancusa, Bernstine, Sainato, and Vogel
115. Plaintiff incorporates all paragraphs in Sections I-IV.
116. RLUIPA prohibits government action which places a substantial burden on religious
exercise or that which regulates land use in a way that discriminates against a religious
organization compared to a non-religious organization. 42 U.S.C.A. § 2000cc(a)-(b).
117. Here, Defendants’ actions not only substantially burdened the sale of the former YDC
property, but made it impossible to come to completion, as their actions prevented Plaintiff
from obtaining necessary financing for the sales agreement, and prevented the Commonwealth
of Pennsylvania from allowing the sale to take place.
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118. These actions took place without the advancement of either compelling government
interests or due diligence to narrowly tailor to achieve such interests.
119. For instance, the primary concerns advanced by the Defendants were that the sale of the
former YDC property was substantially lower than its fair market value, that the property’s use
may be tax-exempt and therefore the Shenango Township would miss out on large amounts of
tax revenue,22 that there were concerns about Plaintiff being able to fund the sale; and that the
proposed use would not be in accordance with the Shenango Township’s zoning ordinances.
120. The earlier attempts to sell the former YDC facility included at least five invitations to bid
prior to the Invitation to Bid that Plaintiff fairly won, where the price was gradually lowered
over time. Indeed, the property sat vacant for nearly five years with insufficient bids.
121. Upon information and belief, Defendants articulated no issues regarding the prior
unsuccessful Invitations to Bid, or the minimum bids contained in them, until a Muslim
organization became the successful bidder.
122. Any compelling interest against tax-exempt use of the facility is undermined by the fact
that the property has been state-owned and has not garnered tax revenue since its inception in
1969, and is further weakened due to the LCCAP’s status as a state-funded organization and
its articulated tax-exempt planned uses of the property.
123. Concerns about funding the sale also fail as compelling, due to the statements by
Defendants Bernstine and Sainato that they would intervene and help to ensure LCCAP could
fund the sale (where their actions and those of the other Defendants made it impossible for
HIRA to obtain financing it could have otherwise obtained), and also point to Defendants’
22 This alone would not be a valid compelling interest, unless applied equally to all religious entities.
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refusal to investigate LCCAP’s financial capability with anywhere near as much scrutiny as
that applied to Plaintiff.
124. The concerns about zoning cannot be narrowly tailored or compelling, as the winning bid
by LCCAP, a non-religious institution, involves its stated desire to use the former YDC facility
for short-term housing and STEM-focused educational facilities, which are considerably
similar to Plaintiff’s articulated desired plans.
125. Furthermore, the zoning ordinance implemented in August 10, 2017, after the sale of the
YDC to Plaintiff seemed possible, is an obvious example of discriminatory intent, as it
removed commercial schools from the authorized uses altogether in order to hinder Plaintiff.
Plaintiff was known to be an educational Islamic non-profit, which was then prevented from
developing its youth intervention center or from developing any religious schooling institution.
126. Evidence of disparate treatment by the Shenango Township exists in its zoning
implementation and regulation, as LCCAP’s purchase of the property has been permitted
despite its similarly stated purposes when compared to Plaintiff’s. The Defendant supervisors
said that Plaintiff would not be able to use the facility as planned, while the only action taken
by the Defendant supervisors regarding LCCAP’s proposed use is to outline the process by
which LCCAP may seek relief from this new zoning ordinance.
127. Furthermore, Defendants have repeatedly and openly described permitting, and in fact
inviting, other prior bidders to join in use of the property, while this invitation has not once
been extended to Plaintiff. Upon information and belief, the invitations and discussions with
other entities for use of the property involve non-Muslim entities.
128. The above are only some examples of the substantial burdens placed by the Defendants
and their discriminatory treatment towards Plaintiff in violation of RLUIPA.
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b. Violation of the Pennsylvania Religious Freedom Protection Act (“RFPA”) againstDefendants Augustine, Burick, Riley, Topper, Lamancusa, Bernstine, Sainato, andVogel
129. Plaintiff incorporates all allegations and facts contained in paragraphs numbered in
Sections I-IV, as well as in the above section.
130. The RFPA prohibits the government from substantially burdening a person’s free exercise
of religion unless the burden is in furtherance of a compelling interest and is the least restrictive
means of furthering the compelling interest.
131. These prohibitions apply even if the burdens result from a rule of general applicability.
132. Under the RFPA, the definition of a “person” includes association of churches or religious
orders or a nonprofit religious organization.
133. Here, the actions of Defendants, under the color of authority of the State of Pennsylvania,
unlawfully burdened and continue to burden Plaintiff’s exercise of its undisputedly sincerely
held religious beliefs. By initiating warrantless litigation, enacting resolutions, enacting new
zoning requirements after the bid process, and initiating a criminal investigation, the actions
of Defendants caused an undue burden on Plaintiff’s ability to obtain the funding necessary for
the YDC facility.
134. In addition, Defendants’ actions made it impossible for the Commonwealth of
Pennsylvania to maintain its end of the sales agreement, as the State could not perfect the deal
with the promise that there was no litigation against the property.
135. Due to the more favorable treatment given to LCCAP, a non-religious institution, for the
reasons stated previously in this Complaint, the actions of Defendants cannot be considered to
be in furtherance of any compelling interest. Furthermore, LCCAP, and the state and local
actors under its “umbrella,” refuse to extend the same invitation for use of the property to
HIRA as it claims and has publicly represented it is doing with all prior bidders on the property.
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136. These state and local actors violated the RFPA.
c. Violation of Section 1981 against Defendant Leonatti
137. Under 42 U.S.C. § 1981, all persons within the jurisdiction of the United States are entitled
to the full and equal benefit of all laws and proceedings for the security of persons and property
as is enjoyed by white citizens.
138. Furthermore, under 42 U.S.C. § 1981, all persons are protected from impairment of the
right to make and enforce contracts by nongovernmental discriminators.
139. Here, Defendant Leonatti, on behalf of Act for America, interfered with the valid contract
between Plaintiff and DGS due to discriminatory animus, based on the national origin of
Plaintiff.
140. This discriminatory animus is apparent through Defendant Leonatti’s baseless, fear-
mongering statements that Plaintiff was going to use the YDC property to house refugees.
141. Defendant Leonatti unlawfully interfered with and violated Plaintiff’s contractual rights,
in violation of 42 U.S.C. § 1981.
d. Violation of Section 1983 against Augustine, Burick, Riley, Lamancusa, Bernstine, Sainato, and Vogel
142. Plaintiff incorporates all factual statements and allegations contained in the paragraphs in
Sections I-IV, in addition to those referenced in the causes set forth above.
143. Under 42 U.S.C. § 1983,
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
144. Defendants’ actions deprived Plaintiff of its religious freedom under the First Amendment
of the United States Constitution.
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145. Defendants’ actions occurred under color of state law, as the Commonwealth of
Pennsylvania, Pennsylvania’s Attorney General, and DGS approved the sale even after hearing
the Defendants’ concerns.
146. The Defendants’ collective actions, including but not limited to the Commonwealth Court
of Pennsylvania Petition for Review action, created an undue hardship and made it impossible
for Plaintiff to obtain the YDC property and, accordingly, to exercise its religious beliefs
unhindered.
147. Defendants’ collective actions deprived and continue to deprive Plaintiff of its rights,
privileges, and immunities secured by the Constitution, and therefore violated 42 U.S.C. §
1983.
e. Declaratory and Injunctive Relief, Pursuant to 28 U.S.C. § 2201, 2202 Against AllDefendants
148. Plaintiff incorporates all factual statements and assertions contained within the paragraphs
in Sections I-IV, in addition to the causes of action set forth above.
149. Plaintiff is entitled to Declaratory and Injunctive Relief against all Defendants.
150. By working to dissolve the sale between Plaintiff and DGS, Defendants’ practices took
place under color of state law and deprived Plaintiff of its right to religious freedom, in
violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, RLUIPA, and RFPA.
151. Plaintiff is therefore entitled to declaratory relief against Defendants’ previous and future
actions against Plaintiff, who rightfully obtained the YDC property.
152. Plaintiff is further entitled to emergency injunctive relief regarding the use of the former
YDC property by LCCAP (including the state and local actors under LCCAP’s “umbrella”),
in order to permit it to exercise its right to religious freedom and be treated in the same manner
as all non-Muslim prior bidding entities.
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VI. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment of liability in favor of the Plaintiff and against the
Defendants, and respectfully requests that this Court grant the following relief:
1. For an emergency injunction regarding the intended unequal use of the former YDC property
by LCCAP until this case is resolved;
2. For declaratory judgment against Defendants for the violations set forth above, as well as
monetary damages, where appropriate, in amounts to be proven in a jury trial;
3. For punitive damages in an amount to be proven at trial;
4. For all costs and expenses herein, against all Defendants;
5. For attorneys’ fees and costs, including reasonable attorneys’ fees and costs as provided by
any applicable provision of the law;
6. Any additional relief this Court deems just, proper, and equitable.
7. Plaintiff hereby requests a jury trial.
Respectfully submitted this 16th day of April, 2018. /s/ Charles D. Swift/s/ Christina A. Jump
Charles D. Swift Counsel for Plaintiff
TX State Bar No. 24091964 (pro hac vice motion pending)
Christina A. Jump Counsel for Plaintiff
(pro hac vice motion pending) TX State Bar No. 00795828
833 E. Arapaho Rd., Suite 102 Richardson, TX 75081
Tel: (972) 914-2507 Fax: (972) 692-7454
[email protected] [email protected]
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