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Sershen v. Cholish

April 28, 2010

MARY SERSHEN PLAINTIFF,
v.
EUGENE CHOLISH, J. SCOTTY LEMONCELLI, BOB HARVEY, BOROUGH OF ARCHBALD AND STILLWATER ENVIRONMENTAL SERVICES, DEFENDANTS.



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

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court is Plaintiff Mary Sershen's Motion for Attorney Fees (Doc. 115) and Motion to Strike Defendants' "Responses" to Plaintiff's motion (Doc. 126).For the reasons set forth below, Plaintiff's petition will be granted in part and denied in part. Plaintiff's attorney Ms. Johanna L. Gelb will be awardedeighty-eight thousand, twenty-six dollars and seventy-five cents ($88,026.75) in attorney's fees and seven thousand, eight hundred eight dollars and eighty cents ($7,808.80) in costs for her work. Plaintiff's attorney Ms. Theresa J. Malski-Pezak will be awardedtwelve thousand, three hundred thirty-nine dollars ($12,339.00) in attorney's fees and one hundred four dollars and two cents ($104.02) in costs for her work. Plaintiff's Motion to Strike will also be granted.

BACKGROUND

I. FACTUAL BACKGROUND

The background of this case was discussed in detail in my Memorandum and Order of December 17, 2009 (Doc. 112). As such, the Court will not articulate all the factual circumstances of this case and will only focus on the factual and procedural issues that are pertinent to the instant motions.

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 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 Defendant Harvey, the Fire Chief for the Borough of Archbald, 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.) Because of the unsafe condition of the house, Defendant Harvey and Defendant Lemoncelli, the zoning and code enforcement officer for Archbald, both performed searches of the property without warrants or Plaintiff's consent.

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.)

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 Defendant Stillwater. (Archbald Borough Meeting Notes 3, Aug. 16, 2006.)The decision to demolish the property was made based on a consensus of the Borough Council. (Giordano Dep. 79:22-80:1.)

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.) At the time of this Court's Memorandum and Order of December 17, 2009, there was still genuine issue of material fact regarding the notice provided to Sershen before her house was demolished.

On August 19, 2006, Defendant Cholish, a police officer for the Borough of Archbald, 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.) Members of the demolition crew asked to have Sershen removed from the property, because they did not want her near the work for safety reasons. (Cholish Dep. 61:7-16.)*fn3

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.) 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 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.) A member of the demolition crew 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.) Cholish went over to Sershen and told her she was being arrested for defiant trespass. (Cholish Dep. 102:5-13, 117:16-20, 118:1-4.)

Cholish transported Sershen to the police station, and placed her in a cell. (Cholish Dep. 103:18-21.) ) The Chief of Police happened to walk in and convinced Cholish to file only charges for disorderly conduct and to release Sershen. (Cholish Dep. 134:16-19, 139:6-13.) Cholish asserts that Sershen was in the cell for approximately ten (10) minutes. (Cholish Dep. 135:5-6.) Sershen asserts that she was in the cell for thirty (30) to forty-five (45) minutes. (Sershen Dep. 89:23-90:1.)

II. PROCEDURAL BACKGROUND

Plaintiff filed a seventeen-count complaint against Cholish, Lemoncelli, Harvey, former Archbald Mayor Kenneth Propst, Archbald Mayor Ed Fairbrother, the Borough of Archbald and Stillwater Environmental Services, Inc. on June 1, 2007. (Doc. 1.) On October 26, 2007, this Court entered an Order dismissing all claims against Propst and Fairbrother, all claims against the individual defendants in their official capacities, the claims against Cholish for violations of the due process clause, malicious prosecution, assault, battery and abuse of process, and all claims for punitive damages. (Doc. 19.) On February 29, 2008, in response to Stillwater's Motion to Dismiss, this Court entered an Order dismissing the § 1983 claim against Stillwater and the § 1983 conspiracy claim against Stillwater. (Doc. 25.)

On July 30, 2009, Plaintiff filed an amended complaint, containing the following causes of action: arrest without probable cause in violation of 42 U.S.C. § 1983 against Cholish (Count I), retaliation against free speech in violation of 42 U.S.C. § 1983 against Cholish (Count II), false arrest and imprisonment under state and federal law against Cholish (Count III), malicious prosecution against Cholish (Count IV), violation of the due process clause pursuant to 42 U.S.C. § 1983 against Lemoncelli (Count V), violation of the due process clause pursuant to 42 U.S.C. § 1983 against Harvey (Count VI), unreasonable search of the Barth property without a warrant in violation of 42 U.S.C. § 1983 against Harvey and Lemoncelli (Count VII), violation of the due process clause pursuant to 42 U.S.C. § 1983 against the Borough of Archbald (Count VIII), conversion and destruction of property against Stillwater (Count IX), negligent demolition against Stillwater (Count X), civil conspiracy against ...


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