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GODSHALK v. BOROUGH OF BANGOR

May 5, 2004.

VALERIE GODSHALK and KELVIN GODSHALK, Plaintiffs,
v.
BOROUGH OF BANGOR, FRANK ZELENA and BARBARA ZAVACKY, Defendants



The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

This case concerns the effect of enforcing local building codes on the privacy rights of local property owners. Plaintiffs Valerie and Kelvin Godshalk, residential property owners in Bangor, Pennsylvania, contend that the Borough of Bangor's attempts to enforce its building maintenance code resulted in violations of their constitutional rights. Plaintiffs name as defendants the Borough of Bangor; Frank Zelena, Bangor's Zoning Enforcement Officer; and Barbara Zavacky, a member of Bangor's Zoning Hearing Board.

The thrust of plaintiffs' complaint is that they were unfairly and unconstitutionally targeted by Zelena upon his appointment as Zoning Enforcement Officer and that, as a result, their property was searched and they were criminally charged in violation of their constitutional rights. More specifically, plaintiffs allege the following six grounds for relief: in count I, plaintiffs contend that defendant Zelena's inspection of their property infringed upon their Fourth and Fourteenth Amendment rights in violation of 28 U.S.C. § 1983; in count II, plaintiffs bring a malicious prosecution claim against defendant Zelena; in count III, plaintiffs allege abuse of process against defendant Zelena; in count IV, plaintiffs bring a section 1983 claim against defendant Zelena for malicious prosecution and abuse of process; in count V, plaintiffs claim that the Borough of Bangor violated section 1983 when it failed to train and supervise Zelena, thus resulting in the violation of plaintiffs' Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights; and in count VI, plaintiffs bring a defamation claim against defendant Zavacky.

  Presently before this court is defendants' motion for summary judgment. For the reasons that follow, defendants' motion will be granted with respect to claims I, III, IV, and V. Claims II and VI will be dismissed.

 I. BACKGROUND*fn1

 The Properties

  Husband and wife plaintiffs Kelvin and Valerie Godshalk own ten residential properties, three of which are relevant to this litigation. See K. Godshalk Dep. at 24-25. At the time of the events giving rise to this action, plaintiffs owned and resided in a house located at 323 1/2 Broadway, Bangor, Northampton County, Pennsylvania. See Defs.' Statement of Facts, ¶ 17 [hereinafter "Defs.' Facts"]; Pls.' Resp. to Defs.' Facts, ¶ 17 [hereinafter "Pls.' Facts"]. Also in Bangor, plaintiffs own a multi-unit residential property located at 31-33 North Third Street. Defs.' Facts, ¶ 15; Pls.' Facts, ¶ 15. And finally, plaintiffs own a three-unit residential property located at 439-441 Pennsylvania Avenue ("441 Pennsylvania Avenue") Bangor, Pennsylvania. Defs.' Facts, ¶¶ 7-8; Pls.' Facts, ¶¶ 7-8.

  When plaintiffs purchased 441 Pennsylvania Avenue in October, 2001, tenant Kimberlee McCarty occupied one of the units. Defs.' Facts, ¶¶ 7, 9; Pls.' Facts, ¶¶ 7, 9. Upon purchase, plaintiffs entered into a verbal month-to-month lease with McCarty, the terms of which were similar to those McCarty had maintained with the previous owners and pursuant to which McCarty has remained in the unit until the present time. Defs.' Facts, ¶¶ 10-11; Pls.' Facts, ¶¶ 10-11.

 The Borough of Bangor's Property Maintenance Requirements

  On February 13, 1995, the Borough of Bangor adopted and approved Ordinance No. 797 ("Ordinance 797"), which established regulations governing the "conditions and maintenance of all property, buildings and structures" in order to "insure that structures are safe, sanitary and fit for human habitation and use." Ord. No. 797 (attached to Defs.' Facts as Exhibit G). To this end, Ordinance 797 adopted "The BOCA National Property Maintenance Code"*fn2 as Bangor's maintenance standards, three copies of which were then on file at the Office of the Borough Secretary. Id. Under the terms of Ordinance 797, individuals in violation of the Borough's property maintenance standards are subject to a fine, imprisonment, or both. Id. ¶ 106.2.

 The Zoning/Codes Enforcement Officer for the Borough of Bangor

  Defendant Zelena assumed the position of Zoning/Codes Enforcement Officer ("Zoning Officer") for the Borough of Bangor sometime in August, 2002. Defs.' Facts, ¶ 4; Pls.' Facts, ¶ 4. Prior to Zelena's appointment, Kurt Krouse served as the Borough's Zoning Officer from January 1, 2000, through July of 2002. See Krouse Dep. (9/19/03) at 5 (attached to Pls.' Facts as Ex. 5). The parties dispute the precise scope of a Zoning Officer's official responsibilities; I will go into some detail in relating the duties performed by both Krause and Zelena, therefore, in an effort to characterize as accurately as possible the responsibilities delegated to a somewhat un-defined position.

  According to Krouse, his duties as Zoning Officer included enforcing borough ordinances and building codes; sending letters to property owners, including violation notices and notifications regarding problems with properties; conducting visual inspections of properties; speaking with citizens regarding code violations like trash problems, abandoned vehicles, and untamed weeds; and responding to citizen complaints about trash odors, lawn maintenance, animal feces, and parking problems in the neighborhood. Krouse Dep. at 7-9, 26, 50. Krouse testified at his deposition that he responded to citizen complaints and perceived violations in a number of ways, depending upon the nature of the violation; in particular, he noted that no specific procedures were in place pursuant to which he performed his enforcement duties. Id. at 8-9. Rather, he would occasionally send a preliminary letter, other times make a personal visit to the property, and still other times send the violation notice right away:
[T]here's no written standard on contact letters. I was never trained on that. There's no written procedure anywhere on first contact letters. But when I did a violation letter, I never did first contact letters. I never did a letter saying I wanted to meet with them. If I couldn't contact a person such as yourself, say if I wanted to contact you, if I tried to call you, I couldn't get you, I knocked on your door 20 times and I could not get you, I would send a violation letter out and let the dice roll where they may. If they respond to that letter, fine. If not, we go on.
Id. at 38-39. Krouse also stated that in his capacity as Zoning Officer, he frequently conducted personal inspections unannounced, during which he would knock, introduce himself, and inspect either the exterior or interior of the property. Id. at 21-22.

  The portrait painted by former Zoning Officer Krouse of his position in the late summer of 2002, when he resigned and Zelena assumed his duties, is not atypical of imprecisely-defined local government positions in towns and boroughs across the country. Krouse responded as appropriate to complaints as they arouse, adhering less to rigid job description guidelines than to a pragmatic, flexible, need-based mentality.*fn3

 Zelena's Appointment

  At the Bangor Borough Council Meeting on August 12, 2002, defendant Zelena was hired as Zoning Officer. See Mtg. Minutes Aug. 12, 2002, p.5 (attached to Defs.' Facts as Exhibit C) [hereinafter "Mtg. Minutes"].*fn4 Suggestions were made, at this meeting, that Zelena begin work either the next day or on August 19, 2002. Id. According to a letter sent to the District Magistrate from Borough Secretary Lynn Martocci, regarding Zelena's swearing in, his official date of hire was August 22, 2002. See Martocci Ltr (attached to Pls.' Facts as Exhibit 2). Zelena was sworn in on August 26, 2002. See Oath of Office (attached to Defs.' Facts as Exhibit DD).*fn5

  In his capacity as Zoning Officer, Zelena reported to the Borough Council, the body which appointed him, and-on a day-to-day basis-to George Gemmel, the Borough Manager. See Def.'s Obj. & Responses to PL's First Set of Interrogatories at 4 (attached to Pls.' Facts as Exhibit 4); Zelena Dep. (12/19/02) at 8-9. According to Gemmel, the Zoning Officer "runs his own show," and does not generally discuss proposed enforcement actions with Gemmel. Gemmel Dep. 9/5/03 (attached to Pls.' Facts as Ex. 1).

  During the "Public Comment/Concerns" portion of the August 12th meeting, a complaint about plaintiffs' property at 441 Pennsylvania Avenue was registered by Michael Stinson. Mtg. Minutes at 2. According to the minutes of the meeting, the property was described as "neglected" and "not being maintained properly." The Council President indicated that this matter would be referred to the "Property Committee" for investigation. Id.

 Zelena's Correspondence with Plaintiffs

  In late August, defendant Zelena determined to investigate the complaints regarding 441 Pennsylvania Avenue himself. While Zelena maintains that this investigation was a regular part of his official responsibilities, plaintiffs dispute the motivation behind his investigation. Plaintiffs allege that Zelena was "directed to target the Godshalks by members of the Borough" and that he "had a history of complaining about the Godshalks." Pls,' Facts, ¶ 29. Regardless of Zelena's precise motivation, the record reveals that sometime in late August, Zelena drove past 441 Pennsylvania Avenue to observe the exterior of the premises. Zelena Dep. (8/19/03) at 53 (attached to Pls.' Facts as Exhibit 11). On August 21, 2002, prior to Zelena's official date of hire or swearing in, plaintiffs received a letter from defendant Zelena relating to 441 Pennsylvania Avenue. See Ltr. 8/21/02, attached to Pls.' Ex. 13 [hereinafter Zelena's First Ltr]. The letter was undated and on plain paper, as opposed to official stationary or letterhead, and its body read as follows:
Please be advised that the Borough of Bangor Codes Enforcement Officer has Determined that there are are [sic] violations of Borough Codes located at 441 Pennsylvania Ave. of which you are listed owner. Please contact this office to make arrangements for Further inspections of your property both inside and out.
Failure to hear from you will result in the Borough taking the necessary legal Action to obtain compliance with its ordinances. Proceed at your own risk!
Id. The court notes two significant facts with respect to this initial letter: first, defendant Zelena assumed the official title and authority of his position before he was either hired or sworn in; and second, his letter failed to contain any description of the violations to which he refers. Furthermore, as defendant Zelena himself admitted, the letter did not comply with the BOCA notice requirements.*fn6 Zelena Dep. 12/19/02 at 60. On August 27, 2002,*fn7 plaintiff's attorney James Preston called Zelena to discuss this letter. See Preston Affidavit, ¶ 5 (attached to Pls.' Facts as Ex. 12). According to Preston, Zelena "assured [him] that he was going to `get' the Godshalks and that he would inspect their property with or without [his] clients' permission, with or without a warrant, with or without a proper enforcement notice, and with or without interference from any attorneys." Id. ¶ 8. According to Zelena, he had a conversation with Preston around this time to discuss the letter, and he recalls informing Preston that he intended to seek a warrant. Zelena Dep. 8/19/03 at 112.

  One day later, Zelena composed a second letter to plaintiffs, also on plain white paper, stating that "[s]ince I have not heard from you please be advised that you are in violation of the following sections of the code." Ltr. 8/28/02, attached to Pls.' Ex. 13 [hereinafter Zelena's Second Ltr]. Zelena's letter then identified six sections of Bangor's Property Maintenance Code allegedly violated by the 441 Pennsylvania Avenue building. Because the validity of Zelena's accusations is at issue in this litigation, it is necessary to discuss briefly each of the six alleged violations.

  Under section 303.1, Zelena notified plaintiffs that they were in violation of sanitation standards, noting "[y]ard littered with automobile tires and automobile parts." Id. Section 303.1 of the Property Maintenance Code provides that "All exterior property and. premises shall be maintained in a clean, safe and sanitary condition. The occupant shall keep that part of the exterior property which such occupant occupies or controls in a clean and sanitary condition." BOCA 5th ed. § 303.1 (attached to Defs.' Facts as Exhibit T) (italicization in original). At his deposition, defendant Zelena admitted that he did not actually see the tires, that the BOCA did not specifically prohibit storing tires in one's backyard, that the tires were eventually removed, and that the letter did not identify what actions needed to be taken to bring 441 Pennsylvania Avenue into compliance with section 303.1. Zelena Dep. 12/19/02 at 68-72.

  Under section 303.7, Zelena notified plaintiffs that they were in violation of "accessory structure" standards, noting "[c]himney in disrepair." Zelena's Second Ltr. Section 303.7 of the Property Maintenance Code provides that "All accessory structures, including detached garages, fences and walls, shall be maintained structurally sound and in good repair." BOCA 5th ed. § 303.7. At his deposition, defendant Zelena stated that accessory structures are detached, that a chimney is not detached from a building, that a chimney is not part of the open spaces on the ...


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