The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge
(Magistrate Judge Smyser)
The complaint was filed on November 22, 2006. The plaintiffs are Richard C. Good and Charlene J. Good, husband and wife. The defendant is the City of Sunbury, a Pennsylvania municipality. The complaint contains a federal claim, a 42 U.S.C. § 1983 claim, and the court has federal question jurisdiction. 28 U.S.C. § 1331. The complaint also contains state law claims. The supplemental jurisdiction of the court is invoked. The supplemental jurisdiction of the court may be exercised under 28 U.S.C. § 1367.
The complaint states that the plaintiffs own real estate in the City of Sunbury. They own real estate at 250-260 Race Street, comprised of three buildings, housing ten rental apartment units. It states that the City of Sunbury Code Office has repeatedly notified the plaintiffs that their properties on Race Street are not in compliance with the International Property Maintenance Code, which has been adopted by the City of Sunbury, in that there were allegedly bags of rubbish and trash in the rear yards or rear porches of the rental units. It alleges that the plaintiffs deny that they have violated the International Property Maintenance Code in that their tenants are responsible for trash removal. It alleges that the City has not ever issued a citation to the plaintiffs which, if the City had done so, would have afforded the plaintiffs the opportunity to defend against allegations of violation(s) on the plaintiffs' part.
The complaint alleges that the plaintiffs have always been in compliance with the substantive provisions of the building and property codes of the City of Sunbury.
On August 9, 2004, the complaint states, the City of Sunbury entered a "Resolution" adopting a policy of designating certain properties as "'Nuisance Properties' if said properties are the subject of three or more 'founded' code complaints within a twelve month period." The Resolution was not advertised or enacted as an ordinance. The Resolution did not define "nuisance" or "founded." It did not provide for any "procedural or substantive proceedings to allow a property owner to challenge or defend a designation of 'nuisance property.'"
On July 25, 2005, the City of Sunbury's Code Office sent a letter to the plaintiffs stating that a list of complaints and violations would be presented to the City Council on August 8, 2005 and that the July 25, 2005 letter was a warning letter. The letter did not state to them that the Code Officer was asking the Council to designate the plaintiff's property as a "nuisance." On August 6, 2005, the Code Office sent another letter to the plaintiffs concerning tenants' trash. On August 8, 2005, the City Council declared the plaintiffs' property a "nuisance." The designation was published in the Sunbury Daily Item and on WNEP Channel 16 television.
The complaint states that the plaintiffs' reputations were damaged. It states that plaintiff Charlene Good, who was responsible for the day-to-day management of the properties, and plaintiff Richard Good, a car dealer, suffered physical, economic and psychological harm, pain and suffering.
The complaint asserts that the City followed unfair procedures, that there was not a factual basis for the "nuisance" designation, that the plaintiffs did not violate any municipal ordinance or law, and that the events caused a violation of the plaintiffs' constitutional and statutory rights.
The first cause of action is that the Fifth and Fourteenth Amendment due process rights of the plaintiffs were violated by the City. The second cause of action is based upon state law: defamation, intentional infliction of emotional distress, and invasion of privacy. Compensatory and punitive damages are sought, as well as attorneys' fees and costs.
An answer to the complaint was filed on January 23, 2007. (Doc. 6). The defendant filed a motion for summary judgment on December 4, 2007, and a brief in support. (Docs. 20, 21). A LR 56.1 statement of facts was filed. (Doc. 22). A brief in opposition was filed on January 16, 2008. (Doc. 28). No reply brief has been filed.
Based upon the defendant's LR 56.1 statement of material facts, the absence of disagreement by the plaintiffs with the material facts as stated by the defendant, and the provisions of LR 56.1, the material facts*fn1 for the purposes of this motion are:
1. Plaintiffs' case was commenced by filing a Complaint with this Honorable Court on or about November 22, 2006.
2. Plaintiffs, Richard C. Good and Charlene J. Good ("Plaintiffs"), are adult individuals who own property located at 250-260 ...