United States District Court, E.D. Pennsylvania
June 15, 2004.
THE ESTATE OF GERTRUDE VAN DER LEER Plaintiff
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
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 due
process. Midnight Sessions, Ltd. v. City of Philadelphia,
945 F.2d 667, 680 (3d Cir. 1991).
Due process requires that a deprivation of property "be
preceded by notice and opportunity for hearing appropriate to the
nature of the case." "The opportunity to be heard must be at a
meaningful time and in a meaningful manner." Id. (citations
omitted). When a state provides a full judicial mechanism with
which to challenge the administrative decision to deny an
application for a building permit, the state provides adequate
due process. Bello v. Walker, 840 F.2d 1123, 1128 (3d Cir.
Here, the Board of License and Inspection Review is required to
provide an appeal procedure and a hearing upon request.
Philadelphia Home Rule Charter § 5-1005 (Adopted Apr. 17, 1951),
available at http://www.phila.gov/personnel/homerule. The
notice itself stated that an appeal could be made within ten
days. The plaintiff, however, argues that Mr. Snyder attempted to
follow the procedure described in the notice by calling the
number listed in the notice and by following the instruction of
The mere existence of an ordinance providing an appeal and a
hearing does not automatically compel the conclusion that a city
conforms with procedural due process requirements when it takes an action against a property. The Court must examine the
actions taken against the specific property to see if the city
provided notice and an opportunity to be heard with respect to
that property. See, e.g., O'Hanlon v. City of Chester, No.
00-0664, 2002 U.S. Dist. LEXIS 5766 at *15 (E.D. Pa. Mar. 27,
2002), aff'd, 79 Fed. Appx. 531, 2003 U.S. App. LEXIS 22422 (3d
Cir. Pa., Oct. 30, 2003).
For the purposes of this motion, the Court must accept the
facts alleged in Mr. Snyder's affidavit. Mr. Snyder stated that
he complied with Mr. Mulderig's instructions by supplying an
engineer's report. He was told that the "imminently dangerous"
characterization was rescinded. Assuming that the notice was
rescinded, the City never reissued a new notice and opportunity
for a hearing before demolishing the building. These disputed
facts raise a question as to whether the plaintiff's procedural
due process rights were violated.*fn3
When determining whether Mr. Mulderig is entitled to qualified
immunity, the Court must undertake a two-step inquiry. First, the
Court must consider whether the facts show that Mr. Mulderig's
conduct violated a constitutional right. As discussed above, Mr. Snyder's affidavit, if true, would show a violation.
The next inquiry is whether it would be clear to a reasonable
official that the conduct was unlawful in the situation he
confronted. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
Because Mr. Snyder's affidavit indicates that Mr. Mulderig either
lied to or misinformed the plaintiff about the rescission of the
notice, the Court will not grant summary judgment on the basis of
The Court, however, is extremely troubled by the plaintiff's
conduct in the course of this litigation. The plaintiff submitted
no evidence with its opposition to the defendants' motion for
summary judgment. Plaintiff's counsel did not take the affidavit
of Bruce Snyder until six days before the hearing. Eight days
after the hearing, the plaintiff, for the first time, submitted
answers to the defendants' request for admissions and Bruce
Snyder's supplemental affidavit, which was executed that day.
The Court is particularly concerned with Mr. Snyder's assertion
in his affidavit that Mr. Mulderig stated that he was satisfied
with the engineer's report and that the demolition notice was
rescinded. These facts were not alleged in the complaint. These
statements seem inconsistent with the engineer's report, which
did not state that the building was structurally sound and noted
that repairs were necessary to prevent more brickwork from
falling. It is doubtful that this report would correct the "imminently dangerous" classification.
The defendants, therefore, shall be allowed to take the
depositions of the plaintiff and her husband to resolve the
inconsistencies in the factual record.
Finally, as for the plaintiff's claims against the City of
Philadelphia, the plaintiff must prove that her
constitutionally-protected rights were violated, and that the
alleged violation resulted from a municipal custom or policy.
Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694-95 (1978).
There is no evidence that the City of Philadelphia has a policy
or custom of encouraging or training its employees to ignore the
process that is outlined in the violation notice.*fn4 Proof
of a single incident by a municipal employee is insufficient to
establish that an official custom or practice caused the alleged
constitutional violation. City of Oklahoma City v. Tuttle,
471 U.S. 808, 822 (1985). The plaintiff has offered no evidence of
situations similar to the present case. The plaintiff's claim
against the City of Philadelphia cannot survive summary judgment.
The defendants argue that the plaintiff's state law negligence claim is barred by the Political Subdivision Tort
Claims Act ("the Act"), 42 Pa. Cons. Stat. § 8541, et seq. The
Act immunizes the City of Philadelphia and its employees from
most state law claims. The plaintiff may proceed with a state law
claim if it fits into one of the eight exceptions enumerated in §
The plaintiff argues that the City's destruction of the
property falls under two exceptions to the Act. The first is the
"care, custody and control of real property" exception. For this
exception to apply, the City must possess or control the real
property in question. 42 Pa. Cons. Stat. § 8542(b)(3).
Exceptions to the Act are to be strictly construed. The City's
duty to inspect private property does not rise to the level of
control or possession required to fall within the real property
exception to the Act. "Possession" under this exception requires
total control over the premises. Limited control or mere
occupation of the premises for a limited period is not sufficient
to impose liability. City of Pittsburgh v. Estate of Stahlman,
677 A.2d 384, 386-87 (Pa. Cmwlth. 1996). See also York Redev.
Auth. v. Keener, 516 A.2d 832, 833-34 (1986).
The real property section applies "only to those cases where
acts of the local agency or its employees make the property
unsafe for the activities for which it is regularly used, for
which it is intended to be used or for which it may reasonably be
foreseen to be used." Mascaro v. Youth Study Ctr., 514 Pa. 351, 361-62 (1987). Furthermore, it only applies to those cases where
it is alleged that the artificial condition or defect of the land
itself causes the injury, not merely when it facilitates the
injury by acts of others. Id. at 362.
In the present case, the City ordered the demolition of a
building. A property defect did not cause an injury. See Id.;
Kiley v. City of Philadelphia, 537 Pa. 502, 506-07 (1994). The
Court finds that this exception does not apply to the present
The plaintiff also argues that Mr. Mulderig could be found
liable for his "willful misconduct." The Act provides that an
individual employee may be held liable where his conduct
constitutes a "crime, actual fraud, actual malice or willful
misconduct." 42 Pa. Cons. Stat. Ann. § 8550. The plaintiff has
presented no evidence of actual malice or willful misconduct. The
Court will grant summary judgment on this theory.
The defendants' counterclaim against the plaintiff seeks to
recover the costs expended to demolish the property. The
counterclaim is based on the theory of implied contract and
Implied contracts are subdivided into contracts implied-in-fact
and contracts implied-in-law. An implied-in-fact contract arises when parties agree upon the obligation to be
incurred, but their intention is not expressed in words and is
inferred from their actions in light of the surrounding
circumstances. An implied-in-law contract is a quasi-contract,
which imposes a duty, absent any sort of agreement, when one
party receives an unjust enrichment at the expense of another
party. Dep't of Envtl. Res. v. Winn, 597 A.2d 281, 284 n. 3
(Pa. Cmwlth. 1991) (citations omitted).
The plaintiff's evidence regarding Mr. Snyder's attempt to
comply with Mr. Mulderig's instructions and Mr. Mulderig's
assurance that the notice was rescinded creates a material issue
as to whether the plaintiff's intention to contract may be
inferred from her and Mr. Snyder's actions. This evidence also
raises a question as to whether the plaintiff's retaining the
benefit of the demolition without payment would be inequitable
and unjust. For these reasons, summary judgment is inappropriate
on the defendants' counterclaim.
An appropriate order follows. ORDER
AND NOW, this 15th day of June, 2004, upon consideration of the
defendants' Motion for Summary Judgment (Docket No. 8), the
responses and replies thereto, and following oral argument on May
20, 2004, IT IS HEREBY ORDERED that the motion is DENIED in part
without prejudice and GRANTED in part for the reasons stated in a
memorandum of today's date as follows:
1. The motion is GRANTED as to the claims against the City of
Philadelphia under § 1983.
2. The motion is GRANTED as to the negligence claim against all
3. The motion is DENIED with respect to the § 1983 claim
against Mr. Mulderig and the defendants' counterclaim. IT IS FURTHER ORDERED that the defendants shall be allowed to
take the depositions of the plaintiff and her husband This is
the only further discovery the Court will allow.