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Sershen v. Cholish

December 17, 2009


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before the Court are three motions for summary judgment: (1) Plaintiff Mary Sershen's Motion for Summary Judgment (Doc. 64); (2) Defendant Stillwater Environmental Services, Inc.'s Motion for Summary Judgment (Doc. 72); and (3) Defendants Borough of Archbald, Robert Harvey, J. Scotty Lemoncelli, and Eugene Cholish's Motion for Summary Judgment (Doc. 79). Also presently before the Court is Plaintiff's Motion to Strike (Doc. 104) two filings by the Borough of Archbald (Docs. 102, 103). Plaintiff's Motion to Strike will be granted in part and denied in part. The Plaintiff's Motion for Summary Judgment will be denied as stated below. The Defendants' motions will be granted in part and denied in part. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction").


Plaintiff Mary Sershen ("Sershen") was a part owner of a home at 590 Main Street, Eynon, Pennsylvania ("the Barth property"), along with her ex-husband David Barth and her father Leonard Sershen. (Deed to 590 Main St., Doc. 66 Ex. 34.)*fn1

Defendant Stillwater Environmental Services, Inc. ("Stillwater") is a corporation which performs hauling and demolition work. (Glenn Bay Dep. 7:3-6, Mar. 4, 2009.) Stillwater is owned by Glenn Bay and Brian Roland. (Bay Dep. 7:21-22.) Stillwater does not have any employees, and did not have any during the relevant time period in 2006. (Bay Dep. 7:7-10.) Robert Noldy ("Noldy") was authorized to act as an agent for Stillwater and to submit bids on its behalf. (Bay Dep. 15:7-13.) Robert Bronson ("Bronson") did not work for Stillwater, and was never paid by Stillwater. (Bronson Dep. 13:15-18, 21-23, Feb. 11, 2009.) Bronson had known Noldy for more than twenty years, and occasionally socialized with him. (Bronson Dep. 11:12-12:21.)

The Borough of Archbald ("Archbald") is a duly organized municipality of the Commonwealth of Pennsylvania. (Amend. Compl. ¶ 7, Doc. 57; Answer ¶ 3, Doc. 68) Defendant Robert Harvey ("Harvey") was at all times relevant to this litigation the Fire Chief for Archbald. (Answer ¶ 2.) Defendant J. Scotty Lemoncelli ("Lemoncelli") was at all relevant times the zoning and code enforcement officer for Archbald. (Answer ¶ 2.) Officer Eugene Cholish ("Cholish") was at all relevant times a police officer for the Borough of Archbald. (Answer ¶ 2.) Collectively, they are the Archbald Defendants.

I. Factual Background

A. Fire at the Barth property

On July 11, 2005, a fire occurred at the Barth property causing extensive damage to the house. (Sershen Dep. 157:20-25, Mar. 30, 2009.) Anyone who viewed the property could "obviously" see the structure was involved in a fire. (Cholish Dep. 57:16-17, Mar. 11, 2009.)According to Harvey, immediately after the fire the Barth property could have been salvaged, but over time the building deteriorated and became unsafe. (Harvey Dep. 92:11-14, Feb. 3, 2009.)

During an inspection of the Barth property at the end of February 2006, Lemoncelli noted the following dangers: (1) the first floor kitchen was badly damaged; (2) the stairway from the basement to the first floor was charred badly and very unsafe; (3) the floor joist and living room suffered fire damage and was unsafe; (4) a lot of wiring had been removed; (5) the exterior siding was damaged by the fire; (6) all the copper tubing had been removed from sinks and the bathroom; (7) the furnace system was destroyed and mostly removed; (8) all basement baseboard heating was removed; (9) the doors needed to be re-secured; and (10) vinyl siding was stripped from the building.(Lemoncelli Inspection Notes 1.)There was a lot of debris all over the house on the first floor. (Bronson Dep. 28:19-24.)There was concern that the structure began to emit foul odors, and that it was becoming an increasing risk for another fire. (Harvey Dep. 87:24-88:13.)The home on the property was approximately fifteen feet from the nearest home. (Noldy Dep. 89:8-11, Feb. 11, 2009.) There were animals in the home and overgrown brush around the back of the home. (Joseph Daley Dep. 20:3-11, Nov. 18, 2008.)The windows were all broken, the glass on the doors was broken, and the rear of the house was open. (Bronson Dep. 68:1-10.)The inside of the home was not habitable with debris all over the place including rotting food, clothing, and garbage. (Bronson Dep. 68:16-69:3.)Noldy had demolished approximately three hundred (300) homes since 1987, and in his opinion the property needed to be demolished. (Noldy Dep. 87:22-88:8.)It was not, however, the worst building Noldy had ever seen.

(Noldy Dep. 88:9-16.)In his letter to the Borough reporting on his inspection, Harvey did not mention having any physical difficulties doing the walk-through. (Anthony Giordano Dep. 76:8-13, Aug. 5, 2008.)Sershen disputes many of the conclusions as to the extent of the damage. (Sershen Dep. 202:3-203:25, 206:25-208:9.)

B. Inspections and the Decision to Demolish

As noted, Lemoncelli inspected the Barth property around the end of February 2006. (Lemoncelli Inspection Notes 1.) Lemoncelli did not have permission or a warrant to search the home. (Lemoncelli Dep. 89:17-90:10, Jan. 26-27, 2009.) Harvey inspected the property on June 12, 2006. (Harvey Dep. 127:5-7.) Harvey did not have permission or a warrant to search the home. (Harvey Dep. 127:18-128:5.) Harvey's search was based upon the premise that the home was "unsafe." (Harvey Dep. 146:24-147:13.) Harvey inspected the property after being advised to do so by the Borough Council at the request of the Borough Solicitor. (Giordano Dep. 76:4-7.) Harvey did not know what steps Lemoncelli was taking in connection with the Barth property. (Lemoncelli Dep. 165:22-25.) Lemoncelli did know about Harvey's inspection of the Barth property. (Lemoncelli Dep: 166:1-12.) Harvey's interaction with Lemoncelli is strictly through the Borough at work sessions and Council Meetings, or when Harvey needed a zoning permit for his personal use. (Harvey Dep. 50:2-8, 9-16.)

Both Lemoncelli and Harvey recommended to the Borough council that the house be demolished because it was unsafe. (Lemoncelli Dep. 98:3-6, 98:20-99:3.) After hearing the results of the inspection by Harvey, the Borough believed the property was an imminent threat to the neighborhood. (Giordano Dep. 21:4-20, 24:2-8, 64:7-14.) It was determined that the building should be taken down pursuant to the unsafe building ordinance as an emergency, rather than under the public nuisance ordinance. (Lemoncelli Dep. 85:12-15.) At least some members of the Borough Council believed there was some kind of an emergency situation. (John Altier Dep. 99:13-100:10, 135:20-4, Jan. 21, 2009; Daley Dep. 79:7-11.) Harvey was concerned that the building was an ever increasing fire risk, which could in turn endanger the lives of the Borough's firefighters. (Harvey Dep. 87:14-88:7.) Harvey also stated that in his experience a property which sits for longer than three (3) to six (6) months after a fire without being repaired "is probably going to end up burning to the ground somehow." (Harvey Dep. 88:8-18.) During the six months after the fire the Barth property had become increasingly deteriorated and nothing had been done to repair it. (Harvey Dep. 87:14-23.)

The Borough Council instructed Lemoncelli to obtain three bids for the work demolishing the property.*fn2 (Lemoncelli Dep. 118: 10-16; Harvey Dep. 125:8-13.) Three bids were submitted for the demolition of the property, and the contract was awarded to Stillwater through Noldy. (Archbald Borough Meeting Notes 3, Aug. 16, 2006.)The Council was notified that Stillwater had the lowest bid before the proposal from Stillwater was accepted. (Lemoncelli Dep. 123:21-22.) The decision to demolish the property was made based on a consensus of the Borough Council. (Giordano Dep. 79:22-80:1.)Lemoncelli stated that there was never a vote taken by the Borough Council to demolish the property. (Lemoncelli Dep. 101:17-102:4.)Borough Councilman Giordano stated that only the Borough had the authority to go forward with the demolition of the Barth property. (Giordano Dep. 88:23-25.)

C. Notice to Sershen

Attempts were made to contact Sershen before the property was demolished. (Giordano Dep. 55:11-18.) Lemoncelli's initial attempts to locate Sershen and her ex-husband were unsuccessful. (Daley Dep. 71:5-12, 72:12-19, 73:2-6.)Lemoncelli spoke twice with Sershen's father. (Lemoncelli Dep. 42:14-16.) Lemoncelli was given the impression that Sershen's father did not know where Sershen was living. (Lemoncelli Dep. 42:21-25.) Archbald Borough Councilman Joseph Daley was also told by Sershen's father that he did not know where Sershen was living. (Daley Dep. 56:2-12, 58:4-10.) Sershen's father met twice with Archbald officials about the Barth property. (Leonard Sershen Dep. 65:12-23, 69:5-17, 76:9-14, 83:12-13, Apr. 30, 2009.) After one meeting he informed Sershen that he had attended the Borough meeting. (Leonard Sershen Dep. 76:19-22.)

Lemoncelli told Sershen the property was going to be torn down in mid-summer 2006 when Sershen called him. (Lemoncelli Dep. 53:1-54:17, 169:15-170:15.) This conversation with Sershen was ten (10) days or a few weeks before the demolition. (Lemoncelli Dep. 170:16-20.) Sershen asserts that she did not call Lemoncelli before August 19, 2006.*fn3 (Sershen Dep. 215:9-11.) Instead, she asserts that the call was sometime between August 22 and 24. (Sershen Dep. 215:12-15.) Sershen was not given notice by Lemoncelli describing why the house was unsafe or what improvements needed to be made. (Lemoncelli Dep. 35:8-14.) Sershen also received a letter from the Borough solicitor, dated April 24, 2006, which requested information about the outstanding insurance claim on the property. (Sershen Dep. 197:19-199:13.)Sershen knew in April of 2006 that the Borough was seeking the insurance funds to pay for the demolition of the property. (Sershen Dep. 199:17-22.)

There is also conflicting testimony as to whether any notice was posted on the Barth property itself. Lemoncelli testified that there was a posting on the house on a continuous basis from March 2006 until August 2006. (Lemoncelli Dep. 57:18-25.)Borough Councilman Daley believed that the property was posted two (2) or three (3) times by Lemoncelli. (Daley Dep. 56:14-18.) Bronson believed that he saw a condemnation notice on the front bottom door of the property, or at least thought that his brother told him it was a condemnation notice. (Bronson dep. 31:21-32:19.) Officer Cholish recalled seeing a yellow posting on the property which said no trespassing. (Cholish Dep. 65:20-66:13.) Wells Fargo Bank, the company holding the mortgage to the property, also posted on the property. (Lemoncelli Dep. 37:19-21, 49:21-50:8.) Sershen did not see any postings at all. (Sershen Dep. 54:4-13.) Glenn Bay, Stillwater's owner, also did not notice any signs on the front door. (Bay Dep. 37:1-3.)

D. Actions by Stillwaterand Bronson

Lemoncelli approached Noldy and requested that he make a bid for the demolition of the Barth property. (Noldy Dep. 27:1-21.) Noldy presumed that the Borough owned the property. (Noldy Dep. 48:2-6.) Noldy believed that the Borough owned the property because the insurance company had sent them a check to raze the building. (Noldy Dep. 49:21-24.) Glenn Bay was also of the belief that the Borough owned the property. (Bay Dep. 29:17-23.) Bronson assumed that Archbald owned the property because he thought he saw a condemnation notice on the Barth property. (Bronson Dep. 31:17-20.) Bronson told Officer Cholish that he knew there was a contract with the Borough to demolish the house. (Cholish Dep. 60:25-61:1.) Bronson stated that he did not have a copy of the contract, but that Noldy did. (Cholish Dep. 61:2-5.)*fn4 Noldy never stopped the demolition to investigate the ownership of the Barth property. (Noldy Dep. 58:12-17.) It is not part of Stillwater's procedure to make sure that the homeowner is actually authorizing the demolition. (Noldy Dep. 48:20-25.)

Bronson was told by Noldy that he could have some lumber from the property, and showed him what he could have. (Bronson Dep. 16:6-15.) Materials from the demolition would have otherwise gone to the landfill. (Noldy Dep. 67:9-11.) Bronson ultimately removed about seven (7) sheets of plywood and about twenty-four (24) two-by-fours (2x4). (Bronson Dep. 23:19-21.) Bronson did not pay anyone for the wood. (Bronson Dep. 24:10-12.) Bronson also removed a window, but it was not usable and was eventually thrown in the garbage. (Bronson Dep. 57:14-58:9.)

E. Encounter with the Police

On August 19, 2006, Cholish was dispatched to the Barth property. (Cholish Dep. 54:1-2., Doc. 66.) Cholish was told that "unknown actors [were] taking down a house" at that address. (Cholish Dep. 56:1-3.) Upon arriving at the scene, Cholish spoke with Sershen, who was standing on the lawn in front of the house. (Cholish Dep. 56:20-22, 60:1-4.) Sershen's daughter was also there. (Bronson Dep. 36:5-7.) A neighbor, Mrs. Delonti was outside standing on her porch during this time. (Sershen Dep. 67:6-11.) Sershen claimed that there were workers tearing down her house, and that they had no paperwork for doing so. (Cholish Dep. 56:22-25.) Cholish saw a truck and a trailer pulled along the side of the house, along with several people walking around. (Cholish Dep. 58:17-20.) Bronson stated that Sershen had been trying to go into the house prior to Cholish's arrival. (Cholish Dep. 88:9-17.) Bronson asked to have Sershen removed from the property, because he did not want her near the work for safety reasons. (Cholish Dep. 61:7-16.)*fn5

Cholish called Mike Zielinski, crew manger for the Archbald Department of Public Works, to inquire about the demolition. (Cholish Dep. 61:22-24.) Zielinski called Cholish back and told him that he was informed by Harvey that a contract was awarded at the last Borough meeting to a company to demolish the home. (Cholish Dep. 62:14-18.) Cholish then informed Sershen that there was a contract to take down the home. (Cholish Dep. 62:22-25.) Cholish asked her to "step off the property due to safety reasons." (Cholish Dep. 63:3-8.) Cholish needed to ask her again to step off the property. (Cholish Dep. 63:16-20.) Sershen then walked out to the roadway, where Cholish informed her that she needed to stay off the property, or else she would be arrested for trespassing and disorderly conduct. (Cholish Dep. 63:21-25.) Sershen acknowledges that she was told that she had to stay off the property because it was being torn down. (Sershen Dep. 62:6-8.) Sershen, however, does not recall that Cholish warned her she would be arrested for trespassing if she returned. (Sershen Dep. 64:4-17.)

Sershen left the property, went back to her apartment, then returned with a camera to take pictures of the demolition. (Sershen Dep. 69:2-11.) Cholish returned to the Barth property along with Officer Minelli. (Cholish Dep. 104:8-11.) Bronson stated to Cholish that Sershen had walked up alongside the house, had gone around back, and was trying to get in the house. (Cholish Dep. 101:21-24.) Sershen stated that she did not see Cholish speak with Bronson at all before she was arrested. (Sershen Dep. 93:2-5.) Sershen also stated that she was never on the Barth property during that time. (Sershen Dep. 74:22-24.) Sershen stated that she walked along a narrow strip of land owned by the Borough*fn6 between her home and her neighbors, far enough from the road so that she was parallel with the rear bedroom walls that were being taken down. (Sershen Dep. 70:20-71:4.) Sershen was far enough back that when workers standing "down towards the front" of the property called ...

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