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Para v. City of Scranton

July 10, 2008


The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge

Magistrate Judge Blewitt


I. Background

On December 12, 2006, the Plaintiff, Richard Para, filed this civil rights action pursuant to 42 U.S.C. §1983 alleging a violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States. (Doc. 1). On March 9, 2006, the Defendants, the City of Scranton, William J. Fiorini, Director of the Department of Licensing and Permits for the City of Scranton, and Mayor Chris A. Doherty, filed their Answer to Plaintiff's Complaint and asserted affirmative defenses to his claims. (Doc. 5).

The parties consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 12). This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

On December 7, 2007, the Defendants filed a Motion for Summary Judgment along with their Statement of Undisputed Material Facts ("SMF"). (Doc. 24, 25).*fn1 The Defendants also submitted exhibits (Doc. 25-2, pp. 1-55) with their SMF. On December 12, 2007, the Defendants filed their Brief in Support of their Motion for Summary Judgment. (Doc. 28). On December 21, 2007, Plaintiff filed his Motion for Summary Judgment, his Undisputed Material Facts, and his Answer to the Defendants' SMF. (Docs. 29, 30, and 31). Plaintiff also submitted exhibits (Doc. 30, Ex. A-I) with his SMF. On January 11,2008, the Plaintiff filed his Brief in Support of his Motion for Summary Judgment. (Doc. 34). Defendants filed their response to the Plaintiff's SMF on February 1, 2008. (Doc. 39).

Currently pending before this Court are the cross-Summary Judgment Motions of the Plaintiff and the Defendants (Docs. 24 and 29) with respect to the Plaintiff's claims, under § 1983, for violations of his substantive and procedural due process rights under the Fourth and the Fourteenth Amendments. The Summary Judgment Motions of both parties have been briefed and are ripe for disposition. (Docs. 28 and 34).

II. Allegations in the Complaint.

The Plaintiff owns real property located at 202-204 Larch Street, Scranton, Pennsylvania.

(Doc. 1, p. 3). Plaintiff alleges that in December 2004, a fire occurred in a building located on his Scranton property. (Id). On December 22, 2004, the Plaintiff was notified by Defendant Fiorini that his property should be razed or rehabilitated. (Id. at 4). The Plaintiff alleges that on July 15, 2005, with respect to a condemnation notice, he filed a request for a hearing with the City of Scranton Department of Licensing, Inspections, and Permits. (Id.).Plaintiff's request for a hearing was granted, and he was given a hearing. At the hearing before the Housing Appeals Board of the City of Scranton on March 7, 2006, the Board voted to demolish the Plaintiff's building located on his Scranton property. (Id.). The Plaintiff alleges that on March 13, 2006, his building was demolished by the City, and that this action deprived him of his right to appeal the decision of the Review Board in violation of his civil rights that were guaranteed by the Fourth and Fourteenth Amendments. (Id. at 5).

In Claim One, the Plaintiff alleges that the destruction of his building by the Defendants without due process violated his constitutional rights under the Fourth Amendment and Fourteenth Amendment, and he asserts this claim under 42 U.S.C. §1983. (Id. at 9). In Claim Two, the Plaintiff alleges that his substantive due process rights under the Fourteenth Amendment were violated. (Id.). In Claim Three, the Plaintiff alleges that his procedural due process rights under the Fourteenth Amendment were violated since his building was demolished without notice, a hearing, and in violation of the Pennsylvania Uniform Construction Code. Plaintiff avers that he was deprived of his appellate rights prior to the demolition of his building. (Id.). In Claim Four, the Plaintiff alleges that his due process rights under the Fourth Amendment were violated since Defendants summarily seized and demolished his building without court adjudication and without a search warrant. Plaintiff avers that this unlawful seizure and destruction of his property deprived him of his right to income from his property and caused him embarrassment, humiliation and emotional distress. (Id. at 9-10).

Plaintiff avers that these violations of his constitutional rights and the unlawful taking of his property entitle him to compensatory damages, including the cost of the loss of property, future loss of business, embarrassment, humiliation, ridicule, considerable hardship and financial burden. He also avers that he is entitled to punitive damages from all of the Defendants, in addition to interest, costs and attorney's fees. (Id. at 12).

III. Standard of Review

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).

IV. Material Facts

The Plaintiff and Defendants have both filed Statements of Material Facts. (Docs. 25 and 30). Both parties attached exhibits to their SMF. The Plaintiff and Defendants also filed responses to the other party's SMF. (Docs. 31 and 39). However, Plaintiff's and Defendants' SMF did not fully comply with Local Rule 56.1,M.D. PA., since all of their numbered paragraphs did not reference the evidence in the record to support their facts.*fn2 Therefore, we shall accept each party's SMF that are supported by the record and that are not disputed by the other party, and we will adopt them as our own herein. See U.S. ex rel. Paranich v. Sorgnard, 396 F. 3d 326, 330, n. 5 (3d Cir. 2005) (under M.D. Pa. L.R. 56.1, the Third Circuit noted that the District Court adopted all the facts of one party that were not clearly disputed by the other party with sufficient citation to the record).*fn3

Based on the responses of the parties to each other's SMF, we shall accept as undisputed the SMF contained in Defendants' paragraphs 1, 2, 4*fn4 , 5*fn5 , 6, 7, 8, 10, 11, 12, and 13. (Docs. 25 and 31). We shall accept as undisputed the following paragraphs in Plaintiff's SMF: 1, 2, 3, 4, 6, 7, 8, 9, 10, 11*fn6 , 12, 13, 19, 20, 21, and 22.*fn7 (Docs. 30 and 39). We shall not repeat these undisputed facts specified in the SMF of the parties.*fn8

This Court will now address the following contested statements of material fact in the Defendants' SMF:

Paragraph 3, we find as an undisputed fact that on December 6, 2004, the Scranton Police were dispatched to the Plaintiff's building located at 206 Larch Street for juveniles attempting to enter the vacant building. (Doc. 25, Ex. "B," p. 1). The police Incident Investigation Report for that incident noted: "Structure is in unsafe conditions . . . . The ceiling in areas was falling down, floor had weak spots, and stairs were weak to walk up, among other possible hazardous features to the structure." (Doc. 25-2, Ex. "B", pp. 1-2). This Court notes while the officers observed certain aspects of the building that they felt were unsafe, citing to specific problems with the building, they were not building inspectors qualified to classify it as unsafe. However, the officers notified the communications operator to contact the City Building Inspector about the Plaintiff's building. The Court also notes that Plaintiff disputes Defendants' Paragraph 3 of their SMF, yet he does not cite to any evidence to refute Defendants' evidence submitted in support of this paragraph.

Paragraph 9, the Defendants do not cite to the record to support the proffered undisputed fact that no repairs were ever made to Plaintiff's property. (Doc. 25, ¶9). The Plaintiff disputes this fact, and has evidence to support his contention that debris was removed from the property, and that the windows were boarded up prior to the March 7, 2006 Appeal Board Hearing. (Doc. 30, Ex. "G", p. 15). We find the facts to be undisputed that sometime prior to the March 7, 2006 Housing Appeals Hearing, the Plaintiff's building did have debris removed and the windows were boarded, since these facts are supported by the testimony at the hearing and the letter from the Plaintiff's attorney to Defendant Fiorini, dated January 25, 2006. (Doc. 30, Ex. "D" and Ex. "G", p. 15). However, we do not find that these steps taken by the Plaintiff to secure his building constitute repairs to the building in terms of fixing any problem with its structure and interior.

Paragraph 14, the Court finds it to be an undisputed fact that the City of Scranton provided the Plaintiff with notice of condemnation as required by Section PM-107*fn9 of the BOCA Code. (Doc. 30, Exs. "E" and "F"). We also note that the Plaintiff's attorney wrote to Defendant Fiorini and told him that the debris from Plaintiff's building would be removed and the windows would be boarded on Plaintiff's building within fifteen days, and that this was done before the March 7, 2006 Appeal Hearing, as stated above. (Doc. 30, Ex. "D").

Paragraph 15, the Court finds that Plaintiff is correct and that he first received notification of condemnation from the City on December 22, 2004, not December 22, 2005. (Doc. 25-2, Ex. "E", p. 1). The Court also finds that it is undisputed insofar as Defendants state that from the time Plaintiff was first notified of condemnation of his building up to the March 13, 2006 demolition of his building, Plaintiff was given ample opportunity to make repairs to his property but there is no evidence that he ever did make repairs. (Doc. 25, ¶ 15.). As stated above, the steps Plaintiff undisputedly took to "secure" his building clearly did not constitute repairs to the building. These steps only prevented people from entering the building. (Doc. 30, Ex. G, p. 15).

The Court will now address the following disputed facts in the Plaintiff's SMF (Docs. 30 and 39):

Paragraph 5, the court finds it undisputed that the Plaintiff was the owner of real property situated at 202-204 Larch Street, Scranton, and that there was an apartment in the building on the property (Doc. 30, Ex. "G", pp. 7-8), and that they building was used for storage at the time relevant to this suit. (Doc. 30, Ex. "G", p. 11). The Court also finds undisputed that two fires had damaged the apartment building (Doc. 30, Ex. "G"., pp. 3,6,12) and that there was a men's clothing store in the building many years before the relevant time of this case. (Doc. 30, Ex. "G", p. 11).*fn10

Paragraphs 14 and 15, the Court finds the March 7, 2006 Appeals Hearing testimony of Anthony Popple, the owner of A.R. Popple, Inc., which is a demolition, excavation and general construction business, as undisputed. (Doc. 30, Ex. "G", p. 14). Mr. Popple testified that the Plaintiff's building was "water tight," the roof was in "fairly good shape," and the majority of the exterior of the building had stucco on it and it was in excellent condition. (Doc. 30, Ex. "G", pp. 14-15).*fn11 In addition, we find that Defendants are correct, in that the Plaintiff himself did not appear at the March 7, 2006 Appeals Hearing, but he was represented by his attorney and Mr. Dan Kutchar. (Doc. 30, Ex. "G", p. 5).

Paragraph 16, the Court find Plaintiff's Paragraph 16 to be supported by the record. (Id., pp. 14-16). We also find that Mr. Seitzinger, Deputy Director of Safety and Conservation of the City of Scranton, testified at the March 7, 2006 Appeals Hearing as follows:

As the [Plaintiff's] property stands right now, I mean, with two fires and that number of police calls out to that property, it's putting our firefighters, it's putting our policemen, it's putting the people in that neighborhood, it's putting our inspectors, anybody who represents the city who has to deal with properties, it's putting all of us at risk the longer that it stands and the longer that it's up standing on that property. So, we're requesting that the property be razed as soon as possible. (Doc. 30, Ex. "G." p. 4).

In addition, Mr. Seitzinger testified:

Mr. Chairman, that [Plaintiff's] property wasn't boarded up until about a month and a half ago, when we ordered for it to be boarded up.

So, up until that point, that property wasn't a secured property. We had asked for that property to be secured, all windows boarded up and cleaned up.

Subsequently, that has been done, but the way I look at this property is, like Mr. Fiorini said, that property is, you know, putting our, you know, public servants in danger, and its two blocks away from two different schools.

You've got Scranton Prep two blocks away, and you got the elementary school down on Capouse Avenue is two blocks away.

Vacant buildings, blighted properties are attractive to young children. They have a tendency to go in. They're curious. They go into these properties, and what they do in them, we don't know. (Doc. 30, Ex. "G", pp. 15-16).

The Court also notes that the Plaintiff did not know about the first fire to his building, which occurred in late 2004, shortly before Christmas, until he was notified by the December 22, 2004 letter from the City that condemned his property, which was sent days after the first fire. (Doc. 30, Ex. "A", Ex. "G", p. 5-6).

Paragraph 17, the Court finds this statement of Plaintiff to be undisputed as stated and that the City of Scranton did not provide testimony at the March 7, 2006 Appeals Hearing regarding the structural condition of the Plaintiff's building. (Doc. 30, Ex. "G").

Paragraph 18, the Court finds it to be undisputed that the Housing Appeals Board, on March 7, 2006*fn12 , voted unanimously to demolish the Plaintiff's Scranton property. (Doc. 30, Ex. "G", p. 18). The Court finds that some of the reasons offered to support the Board's decision were:

It [Plaintiff's Building] is not only a hazard to the fire company and the police department and the City of Scranton, it's a hazard to these kids, like, the children here this evening, they're looking for places to go.

A property like this that's neglected, not watched over, and not kept as though someone was living there, it doesn't make sense and it's gone on way beyond a reasonable time.

As far as someone saying, well, we're waiting on insurance monies or something like that, just doesn't happen. There are other means of funding a project, especially in the City of Scranton.

I know there are funds available for people having a hard time who want to maintain their property or keep it in reasonable operating condition. (Doc. 30, Ex. "G", pp. 17-18).

In addition, some reasons stated in the first condemnation letter (dated December 22, 2004) from the City to Plaintiff dated were:

[The Plaintiff's] property has been condemned and vacant for some time and to date nothing has been done to rehabilitate this structure. As the years go on, the structure has not been maintained nor kept at a constant temperature. It is in such disrepair that it is a danger ...

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