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Kovalev v. City of Philadelphia

December 23, 2008


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court are several motions*fn1 filed by Plaintiff, Sergei Kovalev ("Kovalev"), against the City of Philadelphia ("the City"). For the reasons which follow, several will be denied in their entirety, while others will be granted in part and denied in part. We will address each one, in turn, below.


On November 28, 2007, Kovalev filed a pro se Complaint against the City and numerous City officials*fn2 in their official capacities, alleging that these City employees intentionally violated his constitutional and federal statutory rights pursuant to 42 U.S.C. §§ 1981-1985, and committed numerous tortious acts upon him. Kovalev filed an Amended Complaint on December 3, 2007 and added another City employee, Stacey Jones-Culbreth, inspector for the City of Philadelphia Business Compliance Unit of the Department of Licenses and Inspections.

Kovalev lives at 5305 Oxford Avenue in Philadelphia, Pennsylvania. On April 29, 2005, Kovalev organized the Centurion Gateway Corporation under the laws of the Commonwealth of Pennsylvania. The corporation was formed for the sole purpose of holding Kovalev's property at 5305 Oxford Avenue, Philadelphia, Pennsylvania. The corporation conducts no business activity, has no shareholders, and no assets. On October 6, 2006, Stacey Jones-Culbreth issued a notice of violation against Kovalev's property on the grounds that she could not gain admittance to the property to conduct an inspection, as required by the City Code of Ordinances. Kovalev contends that his property is not subject to inspection by the Business Compliance Unit because he conducts no business on the premises. As such, he asserts that the Business Compliance Unit, in attempting to inspect his property, attempted an illegal search of his residence, in violation of the Fourth Amendment. He further contends that the City attempted these inspections because his property is located twenty feet from State Senator Christine Tartaglione's office. Kovalev asserts that Senator Tartaglione sought to use the City, through her familial relation to several City employees, to find out what was occurring inside Kovalev's residence, and to ultimately reduce the value of his property.

On June 1, 2007, the Department of Licenses and Inspections issued a second notice of violation against the property for Kovalev's failure to obtain a building permit prior to erecting a 162 square-foot structure in the rear of his home. Kovalev maintains that the structure did not require a permit pursuant to the City Code. After receipt of the violation, Kovalev met with Terrence Dillon, a supervisor at the Department of Licenses and Inspections, and was told that the structure was an "addition" and required a permit. Kovalev avers that he was willing to obtain the required permits for this structure, and he prepared plans and applied for the permits on June 8, 2007. After approximately two months, Kovalev learned from Joseph Flanagan, a Construction Compliance Supervisor with the Department of Licenses and Inspections, that Flanagan was unable to understand the plans and did not understand what Kovalev had built. On August 13, 2007, Flanagan informed Kovalev that he had looked at the application but would likely not be able to issue any permits because the plans were so confusing. Flanagan then requested that Kovalev submit drawings prepared by a licensed professional so that he could process the application. Kovalev avers that there was nothing confusing about the plans, and that Flanagan intentionally required additional plans and delayed the issuance of his permits for the sole purpose of harassing Kovalev and inflicting emotional distress upon him. He additionally claims that the City continually denied his application with no reasonable justification so that it could collect the violation costs for its own financial gain.

Kovalev appealed both violation notices to the Board of Licenses and Inspections Review. According to him, the Board refused to listen to any of his arguments and simply "rubberstamped" the violations in favor of the Department of Licenses and Inspections. Kovalev asserts that the Board discriminated against him and refused to consider his arguments because he is a foreign-born United States citizen of Eastern European origin.

On November 5, 2007, Kovalev wrote letters to the former mayor of Philadelphia, John Street, and to the Commissioner of the Department of Licensing, Robert Solvible, describing his experiences in trying to obtain the permits. Kovalev alleges that four days after the submission of the letters, the City, through its attorney, Angel L. Franqui, Jr., filed a Complaint in Philadelphia Municipal Court claiming that Kovalev's corporation failed to file and pay the City's business privilege tax from 1997 through April 16, 2005. Kovalev argues that the allegations in this Complaint were completely false, and that the action was filed in retaliation for the letters he sent to the mayor and commissioner disclosing the City's violations.

The City filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12 (b)(6) on February 15, 2008 asserting that Kovalev had failed to state a claim under § 1983, and that his tort claims were barred by Pennsylvania's Political Subdivision Tort Claims Act. In a Memorandum and Order dated March 25, 2008, this Court granted the Motion in part and denied in part. Kovalev v. City of Philadelphia, No. 074875, 2008 WL 783564, at *2-3 (E.D. Pa. March 25, 2008). The Motion to Dismiss was granted with respect to Kovalev's claims for harassment, intentional infliction of emotional distress, and abuse of process, and denied with respect to his claim pursuant to § 1983. It was also ordered that Kovalev's Motion for Allowance and Joinder of Defendants was denied as his claims against City officials in their official capacities were duplicative of his claims against the City itself.

On April 28, 2008, this Court entered a Scheduling Order, setting a discovery deadline of July 31, 2008, and a Motions deadline of August 18, 2008. As noted earlier, Kovalev filed a total of six discovery Motions in May, June, and July 2008.*fn3 The City, however, only timely responded to Kovalev's Motion to Compel Defendant to Produce Requested Documents (Second Set) on August 18, 2008. Instead of filing timely responses to Kovalev's other five outstanding Motions, the City ignored these Motions and, instead, filed a Motion for Summary Judgment on August 19, 2008.*fn4 We contacted the attorney handling this case for the City and inquired whether the City intended to file answers to the outstanding motions. We were informed that the City would promptly file such. However, responses were not filed, and we scheduled oral argument on the Motions on October 21, 2008. At this hearing, the City was ordered to file responses to all of the outstanding Motions. The City, subsequently, did file such responses. We, now, in turn, address each of these Motions.


1. "Motion to Compel the City of Philadelphia to Secure for the Court Trial Presence of its Employees and Officials Possessing Knowledge of the Facts Alleged in the Plaintiff's Complaint"

In this Motion, Kovalev asserts that the City denied most of the claims in his Complaint by answering that it had "no sufficient knowledge of the facts," when in fact a number of City employees have first-hand knowledge of the relevant facts concerning the alleged wrongful actions against him by the City. As such, he asserts that this Court should order these individuals*fn5 to be present at trial.

Kovalev's Motion, however, is premature. Kovalev filed this Motion prior to the scheduling of trial in this matter. While Kovalev is entitled to require witnesses to appear for the purposes of trial, seeking an Order from the Court is not the appropriate procedure at this point in the proceedings. Kovalev may obtain a subpoena from the Clerk of Court in order to command a witness to attend and testify at trial. Fed. R. Civ. P. 45 (a)(1), (3). If a subpoenaed witness fails to appear, a party may then seek relief from this Court. Fed. R. Civ. P. 45(e). Accordingly, this Motion is denied.

2. Motion to Compel the City to Produce Requested Documents

Kovalev asserts in this Motion that the City has produced some documents in response to a Request for Production of Documents, but refused to produce any documents related to paragraphs 7, 11, 14, 15, 16, 17, and many relevant documents from paragraph 24 of that request. The City counters that it provided reasonable objections to these paragraphs, and continues to maintain those objections and argues that the requests made in those paragraphs are vague, overbroad, and not reasonably calculated to lead to discovery.

Federal Rule of Civil Procedure 26 allows litigants to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense[.]" Fed. R. Civ. P. 26(b)(1). "[M]aterial is relevant if it bears on, or reasonably could bear on, an issue that is or may be involved [in] the litigation." Topol v. Trustees of Univ. of Pa., 160 F.R.D. 476, 477 (E.D. Pa. 1995). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). "[R]elevancy under Rule 26 is to be construed liberally," but it "must also be determined and limited by the context of the facts and circumstances of each particular case." Williams v. Am. Cyanamid, 164 F.R.D. 615, 616 (D.N.J. 1996). A district judge must exercise broad discretion in supervising discovery. Bowman v. Gen. Motors Corp., 64 F.R.D. 62, 69 (E.D. Pa. 1974).

Paragraph 7 of Kovalev's Request for Production of Documents requested:

"[T]he names, addresses of all individuals or organizations who allegedly placed any complaint or contacted the City departments in reference to all matters described in Plaintiff's Amended Complaint. Include description of such complaints, contacts, any reports and all other related materials."

In his Motion to Compel, Kovalev simply states that he is entitled to this information, but offers no rationale as to why he is entitled to such. The City states that it provided Kovalev with documents regarding a complaint it had received about his property, but redacted the name of the complainant as it is its policy not to disclose the names of citizens making complaints. We agree with the City, and find that it has a legitimate interest in protecting the identity of the complainant. In addition, we find that this information would not lead to discoverable information that would enhance Kovalev's causes of action against the City.

Additionally, in paragraph 11, Kovalev requests:

"[A]ll documents related to plaintiff's appeals to the Board of Licenses and Inspections Review (appeal # 37171, February 12, 2007, and appeal # 2311, August 28, 2007). Attach any written transcripts (or voice recordings if transcripts are not available of the complete appeal procedures performed during the above-stated plaintiff's appeals."

Kovalev argues that he personally observed individuals both manually transcribing and sound recording the appeal hearings. The City responds that it has already provided documents to this request (Bate stamped 000006). Kovalev has not asserted in this Motion what documents he believes the City is withholding from him, nor has the City described and/or appended to its Response the exact documents it has provided. Since we have no way of knowing what documents the City has given to Kovalev, we will order the City to provide any documents with regard to Kovalev's appeals to the Board of Licenses and Inspections that it has not yet supplied. However, we will not order the City to provide Kovalev with transcripts of these hearings as an independent company transcribed those ...

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