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McKinney v. Philadelphia Housing Authority

April 20, 2010

ANGELIQUE MCKINNEY, AS PARENT AND NATURAL GUARDIAN OF EBONY GAGE AND RONALD LEWIS GAGE, JR., AND IN HER OWN RIGHT, PLAINTIFFS,
v.
PHILADELPHIA HOUSING AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

The Housing Choice Voucher Program ("HCVP") is a federal subsidized housing program in which qualified low-income individuals receive vouchers that they can use to lease private housing. (PHA Mot. for Summ. J. Ex. P-5 [Housing Choice Voucher Program Desk Manual] at 1-2.) Landlords who agree to participate in the HCVP enter into a Housing Assistance Payment ("HAP") contract with a local housing authority, which in turn pays some or all of the tenant's rent directly to the landlord. (Id.) Thus, the tenant has a lease with the landlord and the landlord has a separate contract with the local housing authority. (Id. Ex. D-86 at 1-12.) The HAP contract requires the landlord to maintain the premises in accordance with the department of Housing and Urban Development's ("HUD") Housing Quality Standards ("HQS"), codified at 24 C.F.R. §982.401. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. T [HAP Contract].) Federal regulations require that the local housing authority conduct inspections of homes covered by the program at least annually to ensure they comply with the HQS. 24 C.F.R. § 982.405(a).

In the present case, Plaintiffs were HCVP participants who allege that they were injured due to unsafe conditions in the HCVP-approved home in which they lived. Specifically, they allege that damp conditions and the presence of harmful substances in the home such as mold caused and/or exacerbated Plaintiffs' asthma, including a tragic respiratory incident on March 18, 2006 that resulted in Plaintiff Ebony Gage being hospitalized for months and permanently brain damaged. (Sec. Am. Compl. ¶¶ 283, 294, 297.)

Plaintiffs bring this suit against their local housing authority, the Philadelphia Housing Authority ("PHA") and several of its employees (collectively, the "PHA Defendants") under two theories: (1) that the PHA Defendants violated Plaintiffs' civil rights "pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, the United States Housing Act of 1937, 42 U.S.C. § 1437, and the implementing regulations promulgated in connection therewith... all of which are remediable through 42 U.S.C. § 1983...."; and (2) that the PHA Defendants affirmatively exercised their authority in a manner that rendered Plaintiffs more vulnerable to danger and violated Plaintiffs' rights under the Fifth and Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 315, 322--23.) Plaintiffs also are suing the owners of the property (defendants Robert Stahl, Jr. and Kathleen Stahl, or "the Stahls") and the purported managers of the property (defendants Artur Realty, Inc.; Artur Property Management; Artur Repairs; and Ernest Artur, Jr.; collectively "the Artur Defendants") under theories of negligence and negligence per se.

Currently before the Court are several motions for summary judgment filed by Defendants. For the reasons stated below, the motions are granted in part and denied in part.

I. BACKGROUND

A. 1998: The Stahls Purchase the Scattergood Property

On September 25, 1998, the Stahls purchased 1733 Scattergood Street, a home located in the Frankford section of Philadelphia ("the Scattergood property") from Karen A. & James T. Parisano ("the Parisanos"). (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. A [Agreement of Sale].) As part of the sale, the real estate broker supplied the Stahls with a Seller's Property Disclosure Statement, which revealed, among other things, that there had been water leakage in the home's kitchen, basement, and roof. (Id. Ex. B [Seller's Disclosure].) On October 9, 1998, Karen Parisano wrote a letter addressed to "Mr. Artur" stating: "In response to the question on the Disclosure Statement, there is a leak in the basement on the wall in the back of the basement on the west side of the property somewhere around or near the window (facing my next door neighbor's property). I don't know exactly where the leak is since I never had anyone come out to look at it and try to repair it." (Id. Ex. C [Parisano Letter].)

In November of 1998, the Stahls agreed to pay Artur Realty a fee for finding a tenant for the Scattergood property and for collecting rent payments. (Artur Defs.' Mot. for Summ. J. Ex. B [Listing to Rent Contract].) The agreement explicitly noted that Artur Realty lacked authority to contract for repairs to the Scattergood property at the Stahls' expense. (Id.)

B. 1999: Plaintiffs Lease the Scattergood Property

The Stahls, working with Ernest Artur and Artur Realty, sought to enroll the Scattergood property in the HCVP. In June of 1999, a PHA inspector, Defendant Mike Regan, inspected the Scattergood property for a potential HCVP tenant and failed the property, citing numerous areas in which the property failed to comply with the HQS, including a broken toilet, broken wash basin, deficient bathtub and shower, and work needed on the roof and gutters. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. G [June 1999 Inspection Checklist]; Id. Ex. H [June 1999 Violations List]; Id. Ex. I [June 1999 Inspection Failure Notice].)

On July 7, 1999, Plaintiff Angelique McKinney ("McKinney") received a voucher from the HCVP. (PHA Mot. for Summ. J. Ex. D-15 [Voucher].) On July 26, 1999, McKinney applied to rent the Scattergood property for herself and her two children, Ebony Gage, age 6, and Ronald Gage, Jr., age 1. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. K [Rental Application].) On July 27, 1999, McKinney signed a HUD "Request for Lease Approval" form, asking for the Scattergood property to be included in the HCVP. (Id. Ex. L [Request Form].) A PHA employee inspected the Scattergood property on September 8, 1999 and noted that it needed repairs. (Id. Ex. M [Appraisal Inspection].) That same day, PHA sent a letter to Artur Realty noting that the Scattergood property failed to meet the HQS, meaning that PHA would not enter into a HAP contract for that property until certain repairs were made. (Id. Ex. N [Sept. 8 Leasing Rental Determination].)

One day later, on September 9, 1999, the Scattergood property was inspected by PHA inspector Chuck Tomasello, who determined that the property failed. (Id. Ex. O [Tomasello Dep.] at 65.) A letter dated September 9, 1999 from PHA to Artur Realty states that "[n]notice is hereby given that an inspection was made at the [Scattergood Property] on 09/09/99 and the unit was found to be in violation of Housing Quality Standards.... When repairs are completed, contact V. Booth at [phone number] to request a re-inspection." (Id. Ex. Q [Sept. 1999 Inspection Failure Notice].) Records indicate that a second inspection of the home was conducted on September 9, 1999, by PHA inspector Al Fiorentino who determined that the home met the HQS. (Id. Ex. R [Sept. 1999 Inspection Pass].) On September 10, 1999, PHA sent Artur Realty a notice stating that an inspection was made at the Scattergood property on September 9, 1999 and that the unit was in compliance with the HQS. (Id. Ex. S [Sept. 1999 Inspection Pass Notice].)

PHA and the Stahls entered into a HAP contract for the Scattergood property on September 20, 1999. (Id. Ex. T [HAP Contract].) Also on September 20, 1999, Ernest Artur, Jr., acting as agent for the Stahls, signed an "Owner's Certification of Compliance of Housing Quality Standards." (Id. Ex. U [Artur Certification].) That same day, McKinney entered into a lease for rental of the property. (Id. Ex. V [Lease].) The lease, signed by PHA and a representative of Artur Realty, stated that "[t]he owner must maintain the contract unit and premises in accordance with the HQS." (Id. § 9.)

McKinney and her two children, Ebony and Ronald, moved into the Scattergood property in October of 1999. (Id. Ex. W [McKinney Dep.] at 27.)

C. 2000: Plaintiffs Complain of Leaks in Upstairs Toilet and Basement

On February 9, 2000, McKinney reported to the Artur Defendants that the toilet in the upstairs bathroom was leaking and causing the ceiling in the living room to cave in. (Id. Ex. Z [Tenant Memos].) Defendant Glenn Eric Cuff, a PHA inspector, performed an annually mandated HUD inspection on May 15, 2000, at which time he found that the Scattergood Property failed to meet the HQS. (Id. Ex. AA [May 2000 Inspection Failure].) Cuff's report specifically noted that the "ceiling areas" needed to be repaired. (Id.) PHA sent a Notice of Termination letter dated May 16, 2000 to the Artur Defendants advising that repairs were needed based on the May 15, 2000 inspection. (Id. Ex. BB [May 2000 Inspection Failure Notice].) Following a re-inspection of the home on June 20, 2000 by Defendant Anthony Toliver, another PHA inspector, PHA sent an Annual Inspection Approval Notice to the Artur Defendants on June 21, 2000 advising that the unit was in HQS compliance. (Id. Ex. CC [June 2000 Inspection Pass Notice]; PHA Mot. for Summ J. Ex. P-21 [June 2000 Inspection Pass].)

Also in 2000, the water meter in the basement of the Scattergood property began leaking. (McKinney Dep. at 37--41.) McKinney placed a bucket underneath the meter to collect the dripping water, which she had to empty every three or four days. (Id. at 40.) She complained to the Artur Defendants about the issues. (Id.) McKinney met with a PHA Service Representative to inform PHA about the leaks in the home and about letters she was getting from PWD regarding her water meter. (Id. at 41.)

D. 2001: Toilet and Water Heater Leak; Home Passes Inspection

On April 11, 2001, McKinney contacted the Artur Defendants to report that the toilet was still leaking. (Tenant Memos.) The Artur Defendants sent Breen's Cleaning Service to the home on April 20, 2001 to perform some maintenance work. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. DD [Breen April 20, 2001 Invoice].) McKinney again contacted the Artur Defendants on May 16, 2001, to complain that the water heater was leaking. (Tenant Memos.) On May 19, 2001, Breen's Cleaning Service installed a new water heater. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. FF [Breen May 19, 2001 Invoice].) On May 22, 2001, PHA inspector William O'Meara gave the home a passing inspection. (Id. Ex. GG [May 2001 Inspection Pass].)

E. 2002: Home Passes Inspection; Leaks from the Tub; Ronald Develops Asthma

On May 21, 2002, O'Meara gave the Scattergood property another passing inspection. (Id. Ex. II [May 2002 Inspection Pass].) About two weeks later, McKinney contacted the Artur Defendants to complain about a leak coming from her tub. (Tenant Memos.) However, the Stahls refused to make any repairs until the water bills were paid up to date. (Id.) By this time, Ronald Gage, Jr. developed asthma. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. Y [Schacter report] at 12.)

F. 2003: Leaks from the Front Porch; Home Passes Inspection; Ebony Develops Asthma

On June 12, 2003, McKinney reported to the Artur Defendants continuing problems with leaks from the front porch window and front porch roof-the same as those identified in the Seller's Disclosure in 1998 and the initial PHA inspection in 1999. (Tenant Memos; Seller's Disclosure; June 1999 Inspection Failure Notice.) Notwithstanding this fact, on August 8, 2003, an inspector from PHA identified only as the "E1 Team E Floater" gave the property a passing inspection. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. JJ [August 2003 Inspection].) By this time, Ebony Gage had developed asthma. (Schacter report at 12.)

G. 2004: Leaks Continue; Home Not Inspected; PHA Gets Grant Describing Mold as an Asthma Trigger

On February 16, 2004, McKinney reported to the Artur Defendants that the bathroom ceiling was leaking and the living room porch was leaking into the basement. (Tenant Memos.) According to the Artur Defendants' records, on April 2, 2004, "tenant called about leaks, tub leaks into living room, ruined furniture, porch window and roof on porch leaks, owner called back thinks this is serious will take care of." (Id.) Breen's Cleaning Service went to the property on April 3, 2004 to secure the front downspout to the wall, apply sealant to cracks between the front porch floor and the front of building where water was entering the house. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. MM [Breen April-May 2004 Invoice].) The Artur Defendants' record also indicated that the garbage disposal was leaking into an area beneath the sink. (Id.; McKinney Dep. at 329--31.) Breen's Cleaning Service did not make repairs to the garbage disposal because Mr. Stahl owed money to Doris Breen, the owner of Breen's Cleaning Service. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. EE [Breen Dep.] at 68--70.)

Breen's Cleaning Service entered the property on April 10, 2004 to install new hot and cold water stems and knobs in the bathtub and to caulk the tub. (Breen April-May 2004 Invoice.) It also installed two new ceiling tiles that had experienced water damage, but did not inspect the area in the ceiling for the presence of mold. (Id.; Breen Dep. at 100--03.)

On June 2, 2004, McKinney went to the Artur Defendants' office to complain that the roof and garbage disposal were still leaking and had not been repaired. (Tenant Memos.) These repairs were not made, in part because Mr. Stahl owed money to Doris Breen. (Id.) On November 2, 2004, McKinney again contacted the Artur Defendants and complained that the "kitchen sink needs garbage disposal which was never replaced[;] porch roof leaking which causes leaking in basement[;] bathroom roof leaks[;] bathroom sink knobs just turn[;] toilet not working[;] kitchen lights flicker on and off[.]" (Id.)

PHA never inspected the Scattergood property in 2004, even though federal regulations require inspections be conducted at least annually.*fn1 (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. PP, [Manila Dep.] at 128--30; 24 C.F.R. § 982.405(a).) Yet PHA continued to pay full rent for the property. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. QQ [2004 HAP Payment History].)

Also in 2004, HUD awarded PHA a $1,000,000 grant for the Asthma Intervention and Reduction (AIR) program. (Id. Ex. LL [Grant Information].) PHA's description of this grant identified "mold and moisture problems" as "asthma triggers" and noted that the project was "designed to reduce the number of asthma triggers in homes of developmental aged children living in Housing Choice Voucher homes." (Id.)

H. 2005: Scattergood Property Fails Inspection; McKinney Gets Transfer Voucher

McKinney again complained of leaks on April 9, 2005. (Tenant Memos.) The Artur Defendants' records indicate that they planned on "call[ing] owner but owner owes Doris money." (Id.) The Artur Defendants' records from April 12, 2005 note that "tenant came in stating that Bob [Stahl] will not do any repairs and the leak is messing up her personal belongings and she said she is not paying any rent." (Id.) The note indicated that Mr. Stahl authorized the Artur Defendants to send someone out to fix the leak, but there is no documentation suggesting that any repairs were made. (Id.)

On June 3, 2005, the Scattergood property failed a PHA inspection. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. RR [June 2005 Inspection Failure].) Among the reasons the PHA inspector, Defendant Ruby Jones, cited for failing the property were leaks in the garbage disposal, skylight, and porch ceiling. (Id.) PHA sent a Notice of Termination Letter to the Artur Defendants on June 6, 2005 advising that the unit failed the HQS inspection, and that a failure to meet HQS would result in immediate termination of the HAP contract. (Pl.'s Resp. in Opp'n to Mot. for Summ. J. of PHA Defs. Ex. SS [June 2005 Inspection Failure Notice].) At around this time, McKinney met with a PHA service representative, Defendant Laverne French, to inform PHA that there was mold in the Scattergood property. (McKinney Dep. at 60.) At that meeting, French told McKinney that she could move to a different HCVP home only if the property failed inspection three times. (Id. at 65.) Despite this assertion, ...


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