Posted by: Patricia Salkin | February 1, 2015

Fed. Dist. Court in PA Denies Equal Protection “Class of One” Claim

Tucker Industrial Liquid Coatings (“Tucker”) is a contract coating applicator, applying finish coatings to component parts manufactured by others. Not long after Tucker commenced operations, the Pennsylvania Department of Environmental Protection (“DEP”) discovered various compliance issues and violations at Tucker’s facility, including surface coating and emissions reporting violations and failure to obtain a plan approval and operating permit. Tucker asserts that Defendants violated its equal protection rights when they reviewed Tucker’s DEP file and also issued Enforcement Notices to Tucker, but did not take like action against those alleged to be similarly positioned.

The court found that to prevail on an equal protection claim advanced by a “class of one,” a plaintiff must demonstrate that (1) it has been intentionally treated differently from others similarly situated and (2) that there is no rational basis for the difference in treatment. Tucker’s equal protection claim is based on the premise that Zeigler Brothers and Pennwood Products are appropriate comparator entities. These two companies were similarly situated to it since they are located within the Borough’s mixed use district, engage in industrial production, emit odors eliciting citizen complaints, and have violated DEP air quality regulations. Furthermore, Defendants did not argue against the proposition that Pennwood was treated more favorably in this regard or otherwise produce evidence to the contrary.

Despite this, Tucker has failed to meet its heavy burden of showing that Defendants had no rational justification for treating Tucker differently. Tucker’s 2006 expansion, adding new paint booths, resulted in increased emissions which grieved Borough residents, created serious environmental protection violations, and prompted strong corrective action from DEP. Thus, it could not be said that the differential treatment was “irrational and wholly arbitrary”, and the equal protection claim was found unmeritorious.

Tucker Industrial Liquid Coatings, Inc. v Borough of East Berlin, 2015 WL 163225 (M.D. PA 1/13/2015)

The opinion can be accessed at:,%20INC.%20v.%20BOROUGH%20OF%20EAST%20BERLIN

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