The opinion of the court was delivered by: GILES
This dispute arises out of the demolition of property located at 416 Federal Street allegedly without notice, compensation or due process of law. Defendants Liberty Demolition Corporation ("Liberty") and the City of Philadelphia ("City") move to dismiss the plaintiffs' amended complaint. For the reasons which follow, the motions are granted in part and denied in part.
The property in controversy was owned by Anthony J. and Florence Verdi. In February of 1980, the City, acting through a building inspector, decided that the property was "imminently dangerous" and should be demolished in accordance with the Philadelphia Building Code, section 4-111(4). No notice of the proposed demolition was given, which is the alleged pattern or practice of which plaintiff complains. Pursuant to a contract with the City, Liberty was hired to and did demolish the property at 416 Federal Street on April 4, 1980.
Anthony M. Verdi, the owners' son, brought suit pursuant to 42 U.S.C. § 1983 (1976) for violations of both his own and his parents' due process rights under the Fifth and Fourteenth Amendments. The complaint stated that his parents had assigned to him their rights to sue as evidenced by an attached power of appointment. However, it was clear that he was suing in their behalf, as well as in his own, for his personal property which was located in the house.
An earlier motion to dismiss was granted on the grounds that plaintiff failed to allege a policy, custom, or practice of unconstitutional municipal behavior sufficient to satisfy the Supreme Court's mandate in Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). See Memorandum and Order of September 3, 1982. Plaintiff then filed an amended complaint with leave of court. In it, he named his parents as parties' plaintiff. Once again defendants move to dismiss on various grounds.
In evaluating a motion to dismiss, the allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 n.2 (1977); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980); Empire Abrasive Equipment Co. v. H.H. Watson, Inc., 567 F.2d 554, 557 (3d Cir. 1977).
A. Under Color of State Law
Liberty moves to dismiss the entire complaint against it, alleging that it did not act under color of state law as required under 42 U.S.C. § 1983 (1976). Liberty argues that it is merely a private party in a contractual relationship and not a joint participant with the state. It is undisputed that Liberty exercised no decision-making power -- the City was responsible for determining what was to be demolished, when and after what kind of notice, if any.
In order to be held liable under section 1983, the actions of private persons must be somehow attributable to the state. As the United States Supreme Court stated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970);
Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.
398 U.S. at 152 (quoting United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966)). See also Jennings v. Shuman, 5 ...