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ESTATE OF VAN DER LEER v. CITY OF PHILADELPHIA

June 15, 2004.

THE ESTATE OF GERTRUDE VAN DER LEER Plaintiff
v.
THE CITY OF PHILADELPHIA, et al. Defendants.



The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge

MEMORANDUM AND ORDER

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 negligent.

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.

  I. Facts

  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. B.

  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 letter.*fn1

  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 quasicontractual theories.*fn2

  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 ...


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