The opinion of the court was delivered by: Ambrose, District Judge
OPINION and ORDER OF COURT
Defendant, Borough of Glassport, filed a Motion to Dismiss pursuant to Rule 12(b)(6) in the form of a Motion for Summary Judgment. (Docket No. 4). In support thereof, Defendant filed a Brief, a Concise Statement of Undisputed Material Facts, and an Appendix. (Docket Nos. 5-7). In opposition, Plaintiff filed a Memorandum, a Reply, and a Concise State of Undisputed Material Facts. (Docket Nos. 8, 12, and 13). Thereafter, Defendant filed a Response to Plaintiff's Concise Statement of Undisputed Material Facts. (Docket No. 14). As more fully set forth below, after careful consideration of the pending Motion and the related documents, said Motion (Docket No. 4) is granted in part and denied in part.
Plaintiff is the owner of the real property located at 611 Peach Alley in the Borough of Glassport, as well as the structure that was demolished located thereon. On June 7, 2006, a hearing was held by the Defendant regarding the demolition of Plaintiff's property located at 611 Peach Alley. Plaintiff received notice that the hearing would be at 7:15, but arrived at 7:20. (Docket No. 1-4, pp. 10, 27). By this time, the hearing had already concluded. Plaintiff filed a statutory appeal with the Court of Common Pleas of Allegheny County. Defendants filed a Motion to Quash the appeal.
On April 5, 2007, prior to the hearing on the Motion to Quash, Plaintiff and Defendant entered into a settlement agreement ("the Agreement') with regard to the statutory appeal that had been filed by Plaintiff. They agreed that Defendant would remove the structure located at 611 Peach Alley from the demolition list and that Plaintiff would have 120 days to either sell the property or place the property in good condition according to Glassport Code of Ordinances. Any violations thereafter, according to the Agreement, would be addressed according to the Ordinance. (Docket No. 1-4, p. 30). Ultimately, however, the property was demolished in November of 2007.
Plaintiff filed a Complaint in the Court of Common Pleas attempting to assert causes of action for the following: 1) §1983 for violation of Plaintiff's Fifth and Fourteenth Amendment procedural due process rights; and 2) Breach of Agreement. (Docket No. 1). Thereafter, Defendant removed it to this Court and filed a Motion to Dismiss pursuant to Rule 12(b)(6) in the form of a Motion for Summary Judgment. (Docket No. 4). Briefing of the issues is now complete and the issues are ripe for review.
Defendant titled his pending Motion as "Motion to Dismiss Pursuant to Rule 12(b)(6) in the form of a Motion for Summary Judgment." (Docket No. 4). Both sides submitted evidence outside of the pleadings in support of their positions. Rule 12(d) of the Federal Rules of Civil Procedure provides as follows:
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Since Plaintiff has filed documents in opposition to the Motion outside of the pleadings, has addressed the summary judgment standard, was given ample time to respond, and has not filed any objection to considering this matter as one for summary judgment, I am satisfied that Plaintiff has had sufficient notice of the conversion of the Motion to Dismiss into a Motion for Summary Judgment. Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.1996)(formal notice of conversion not necessary where motion title indicated conversion and plaintiff had time to respond); Latham v. U.S., No. 07-4135306 Fed.Appx. 716, 717-718, 2009 WL 105767, *2 (3d Cir. January 15, 2009). Therefore, I will convert Defendant's Motion to Dismiss into a Motion for Summary Judgment.
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322.
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the ...