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July 29, 1998


The opinion of the court was delivered by: JOYNER



 JULY 29, 1998

 Plaintiffs Sandra Homan and Kevin Scott ("Homan" and "Scott" respectively, or "Plaintiffs" collectively) brought this action against Defendants City of Reading (the "City" or "Defendant"), Board of Health of the City of Reading (the "Board"), and Council of the City of Reading (the "Council") *fn1" seeking compensatory and punitive damages and injunctive relief pursuant to 42 U.S.C. §§ 1982 and 1983. Presently before the Court is Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the Motion is granted in part and denied in part.


 Plaintiffs allege the following facts. Homan, a Caucasian woman, and Scott, an African-American man, have lived together as common law husband and wife for the past nineteen years.

 Sometime prior to May, 1996, Scott purchased the property at 1112-1134 Moss Street, Reading, Pennsylvania, at a tax sale and had the deed recorded in Homan's name. Scott remains the "beneficial owner" of this property. Compl., P 4. On May 25, 1996, the building (the "Warehouse") located on the premises was substantially destroyed in a fire. On or about May 28, 1996, Homan was served with notice (the "Board Order") that the Council, acting as the Board of Health, had declared the Warehouse a public nuisance and directed that the structure be rehabilitated or demolished within thirty days. That same day, Homan was also served with notice that Ronald E. Miller, Director of Community Planning, Programming and Development, had determined that the Warehouse constituted a public nuisance under the Property Rehabilitation and Maintenance Code ("PRMC"). On June 3, 1996, Homan, through her counsel, appealed both decisions.

 Shortly after the receipt of both notices, Scott attempted to gain access to the Warehouse property in an effort to demolish the remaining structure and to clear the site of rubbish and debris. Scott, however, was "denied access to the Warehouse property by the City." Id. at P 15. When he finally gained access to the property on June 27, 1996 *fn2" --two (2) days before the expiration of the thirty day abatement period--Scott hired a fence contractor to install a fence around the property and rented dumpsters for the debris from the demolition and clean-up. The Reading City Engineer ordered Scott to remove the dumpsters sometime after June 27, 1996. The fence was ordered removed, Plaintiffs allege, by a City official "sometime after June 20, 1996." Id. at P 18. Plaintiffs did not obtain any permits to perform the demolition work.

 The Council held hearings on Homan's appeals on June 10 and 18, 1996. On July 8, 1996, the Council, "per se and as [the Board]," issued its "Findings of Fact, Conclusions of Law and Decision," in which it sustained Homan's appeal of the Miller Order but denied her appeal of the Board Order. *fn3" Shortly thereafter, the Council awarded an $ 87,000 contract to Northeast Industrial Services Corp. to demolish the Warehouse. Demolition was completed in September, 1996. The City intends to recover the cost of demolition of the Warehouse from Plaintiffs pursuant to 53 Pa. Con. Stat. Ann. § 37324. Plaintiffs estimate that the work could have been completed for $ 10,000, and that they would have done so had the City not prevented them.

 Based on this alleged series of events, Plaintiffs claim that the City, through the Board and the Council, violated their rights to procedural due process. Plaintiffs also allege that, in denying them access to the property until June 27, 1996, the City violated their substantive due process rights by discriminating against Scott based on his race and against Homan based on her relationship with Scott. Thus, in Count I, Plaintiffs seek compensatory and punitive damages pursuant to 42 U.S.C. § 1983 and attorney's fees pursuant to 42 U.S.C. § 1988.

 Plaintiffs make the following additional factual allegations in Count III. The City, through its Codes Services Unit, issued three "Non-Traffic Citations" to Homan for city ordinance violations in March and April of 1995. Across the street from Plaintiffs' residence, however, is a building (the "American Chain Building") owned "by a corporation controlled by a White person" which has never been cited for similar ordinance violations or declared a public nuisance despite being "in far worse physical condition than the [Warehouse] prior to the fire." Compl., P 37. Plaintiffs attribute the allegedly differential treatment to "defendants' policy, custom and/or practice of racial discrimination in the enforcement of local law." Id. at P 40. Thus, in Count III, they seek compensatory and punitive damages and attorney's fees pursuant to 42 U.S.C. §§ 1983 and 1988 for alleged violations of the Equal Protection Clause of the Fourteenth Amendment.

 Finally, Plaintiffs incorporate all of their allegations into Count IV, in which they seek damages and injunctive relief pursuant to 42 U.S.C. § 1982, and attorney's fees under § 1988.

 At the outset we note that Plaintiffs' complaint alleges only race as the underlying improper motive to support these claims. However, Plaintiffs continue to argue in their responses to Defendant's motions that other improper motives, such as Defendant's desire to obtain the property in question for use as a parking lot, underlie the Defendant's actions. We stated--twice--in the prior 12(b)(6) Memorandum that if Plaintiffs wished to pursue this new theory, they would need to so amend the complaint. See Homan v. City of Reading, 963 F. Supp. 485 at 489-90 and n.4. However, Plaintiffs chose not to amend the complaint. Thus, we will not consider any such claims in determining this summary judgment motion. See Bello v. Walker, 840 F.2d 1124, 1130 (3d Cir. 1988) (not considering a claim that was not plead).


 I. Summary Judgment Standard

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 II. Section 1983 ...

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