The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
This case arises out of the demolition of a property located at
207 Belgrade Street ("the property") in Philadelphia. The
property came under the control of the plaintiff Linda Snyder
upon Gertrude Van Der Leer's death in 1999. On May 7, 2001, the
City of Philadelphia's Department of Licenses and Inspections
declared the property "imminently dangerous." The City
subsequently demolished the building. The plaintiff alleges that
the defendants, the City of Philadelphia and Scott Mulderig, an
inspector for the Philadelphia Department of Licenses and
Inspections, violated her procedural due process rights and were
The defendants filed a motion for summary judgment on the
plaintiff's claims and on their counterclaim for recovery based
on contractual and quasi-contractual theories. The Court held a hearing on May 20, 2004 and will grant the motion in part
and deny it in part without prejudice. The defendants may take
the depositions of Linda and Bruce Snyder and may renew their
motion for summary judgment based on those depositions.
The facts stated in a light most favorable to the plaintiff are
as follows. Upon Gertrude Van Der Leer's death in 1999, the
property came under the control of Plaintiff Linda Snyder, her
Executrix and sole heir. The plaintiff spent $3500 repairing the
building between 1999 and 2001. Compl. ¶ 9.
Scott Mulderig inspected the property on April 22, 2001. His
report noted that the "front wall bulged" and that the "rear wall
has loose and missing brick work." Def.'s Mot. for Summ. J., Ex.
On May 7, 2001, the City of Philadelphia's Department of
Licenses and Inspections ("L&I") declared the property
"imminently dangerous" in a Notice of Violation ("notice") which
was mailed to the plaintiff. The notice also states:
You are hereby ordered to demolish or repair the said
premises IMMEDIATELY. If you fail to adhere to this
notice the city will demolish the premises . . . and
bill the owner for the costs incurred.
If you wish to appeal this violation, apply to the
Board of Building Standards, Municipal Services
Building Concourse Level, 1401 J.F.K. Blvd.,
Philadelphia, Pa. 19102-1686, within 10 days of this
notice. Telephone inquiries concerning appeal process can be directed
to 686-2419. It is required to submit a copy of this
notice with the appeal.
Def.'s Mot. for Summ. J., Ex. B. The plaintiff received the
Bruce Snyder, Linda Snyder's husband, submitted an affidavit
dated May 14, 2004 stating the following facts. After receiving
the notice determining the property to be imminently dangerous,
Bruce Snyder called the L&I's number on the notice. He spoke to
Scott Mulderig. Mr. Mulderig told him that in order to prevent
the demolition of the building, he would need to have a
structural engineer or architect inspect the building and declare
it sound, and that the sealed report would have to be supplied to
L&I. Mr. Snyder and his wife retained Joseph Hoffman, a
structural engineer, to inspect the building. On June 4, 2001,
Mr. Hoffman conducted the inspection. He provided an engineer's
report to Mr. Mulderig, and Mr. Mulderig stated that he was satisfied with the report, and that the demolition notice
was rescinded. Aff. of Bruce Snyder ("Snyder Aff.").
Mr. Hoffman's report states that he performed a visual
inspection only. It states that there are no apparent bulges in
the wall, that steel plates and bolts in the building are rusted
but not severely deteriorated, that the lintels over the windows
are deteriorating, and that the bricks above the window are loose
and that one had fallen to the sidewalk. It also states that a
temporary lintel is necessary to prevent more brickwork from
falling. It does not address any other structural condition that
may or may not exist in the rest of the building. Def.'s Mem. of
Law in Further Support of Mot. for Summ. J., Ex. A.
On June 24, 2001, the Philadelphia Fire Department responded to
the property in response to complaints of falling bricks. On
August 21, 2001, the police radio received a report of falling
bricks, and Scott Mulderig went to the scene. Def.'s Mot. for
Summ. J., Ex. F.
The City demolished the building. The plaintiff and her husband
were not told of the two emergency responses in the summer of
2001 about reports of falling bricks. On September 11, 2001,
Bruce Snyder was notified by a neighbor that the property was
being demolished. Snyder Aff. at ¶¶ 11, 12.
II. Analysis The defendants make three arguments in their motion for summary
judgment on the procedural due process count (Count I) of the
complaint. They argue that: 1) the plaintiff's procedural due
process rights have not been violated; 2) there is no claim
against the City of Philadelphia; and 3) Scott Mulderig is
entitled to qualified immunity. The defendants argue that the
negligence count (Count II) is barred by the Political
Subdivision Tort Claims Act, 42 Pa. Cons. Stat. § 8541, et seq.
Finally, the defendants seek summary judgment on their
counterclaim for recovery based on both contractual and
A. Procedural Due Process
In order to establish a cause of action for a procedural due
process violation, the plaintiff must prove that a person acting
under the color of state law deprived the plaintiff of a
protected property interest. The plaintiff must also establish that the state procedure for challenging the
deprivation does not satisfy the requirements of procedural ...