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Allegrino v. Conway E & S

August 12, 2010

ANTHONY ALLEGRINO, AS ASSIGNEE OF LIBERTY IMMOBILIARE, INC., PLAINTIFF,
v.
CONWAY E & S, INC., ET AL, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

Before the Court is the Motion to Dismiss filed by Defendant City of Duquesne (hereinafter, "Defendant City").*fn1 Defendant City seeks dismissal of pro se Plaintiff Anthony Allegrino's*fn2 (hereinafter, "Plaintiff") negligence claim set forth in Plaintiff's Third Amended Complaint (Docket No. [177] paragraphs 167-197). To rule on this motion, the Court must decide whether Plaintiff has alleged a sufficient set of facts to support a plausible claim that Defendant City is liable for damages to Plaintiff's property resulting from Defendant City's participation in the demolition of a building located adjacent to Plaintiff's property. For the reasons set forth below, the motion will be granted, with prejudice.

II. Factual Background

Because this matter comes to this court on a Rule 12(b)(6) Motion to Dismiss, the factual allegations set forth in Plaintiff's Third Amended Complaint are accepted as true. Hemi Group, LLC. v. City of N.Y. , 130 S.Ct. 983, 986-87 (2010)(citing Leatherman v. Tarrant County Narcotics and Intelligence & Coordination Unit , 507 U.S. 163, 164 (1993)). The pertinent facts are therefore as follows.

Plaintiff owned property and a building located at 138 Aurilles Street, Duquesne, Pennsylvania. (hereinafter, "Plaintiff's building")(Docket No. [177] at ¶ 168). Defendant City, Defendant Twin Rivers Council of Government (hereinafter, "Twin Rivers") and Defendant W & J Contractors, Inc. (hereinafter, "W&J") were in joint custody and control of a building located at 140 Aurilles Street located immediately adjacent to the Plaintiff's building. ( Id. at ¶¶ 168, 169, 175).

Defendant City and Defendant Twin Rivers hired Defendant W & J to demolish the building located at 140 Aurilles Street. ( Id. at ¶ 169). During the summer of 2008 through October 25, 2008, the date of the demolition, Plaintiff witnessed employees of Defendant City participating in activities in preparation for demolition. ( Id. at ¶ 175). These activities included removing debris and securing the property at 140 Aurilles Street. ( Id. ). During this same time period, Plaintiff also witnessed employees of both Defendant Twin Cities and Defendant W & J performing the same type of preparation activities, i.e. removal of debris and/or securing the property. ( Id. at ¶ 176, 177). Representatives of Defendant City supervised the demolition ( Id. at ¶ 179). The demolition was ultimately conducted jointly by these three defendants ( Id. at ¶ 168).

Additionally, in order to complete the demolition, Defendant W & J removed the basement and foundation from 140 Aurilles Street. ( Id. at ¶ 61). The basement and foundation of 140 Aurilles Street had provided lateral support to Plaintiff's building. ( Id. ). The removal of this lateral support seriously damaged the foundation, floors, and walls of Plaintiff's building ( Id. at ¶ 60).

The damage caused to Plaintiff's building during the demolition was the result of falling debris, a felled tree, a side blow to Plaintiff's building from the falling 140 Aurilles Street structure and/or a side blow from the heavy equipment used to topple that structure ( Id. at ¶ 180). Plaintiff alleges that these damages were caused by the negligent manner in which the demolition was conducted ( Id. at ¶ 178).

The specific damages to Plaintiff's building that resulted form the alleged negligence included a broken window caused by falling debris from the demolished building; a partially crushed new aluminum fence caused by a tree that was excavated during the demolition; a side blow to Plaintiff's building that left a streak down the building caused by the use of heavy equipment during the preparation for and execution of the demolition; Plaintiff's building was caused to lean six to ten inches; floors throughout Plaintiff's building were rendered significantly off level; walls were cracked; and lateral support and the foundation of Plaintiff's building were compromised. ( Id. at ¶ 180 ).

III. Procedural History

Plaintiff filed his Complaint on November 10, 2009, against numerous Defendants on several different claims and legal theories and included claims of negligence, bad faith and a demand for punitive damages against Defendant City.*fn3 Plaintiff filed an Amended Complaint on November 23, 2009 that retained all the claims against Defendant City from the original Complaint. On December 16, 2009, Defendant City filed a Motion to Dismiss Plaintiff's claim of negligence, his demand for punitive damages and his claim of bad faith. (Docket No. [61]). Plaintiff filed his response on January 5, 2010, and Defendant City replied on January 19, 2010. (Docket Nos.[80] and [91]). The Court granted Defendant City's Motion to Dismiss the claim for bad faith and punitive damages, with prejudice; however, Defendant's Motion to Dismiss the negligence claim was granted, without prejudice, and the Plaintiff was granted leave to amend his Complaint on the claim of negligence. (Docket No. [166]).

Plaintiff filed his Second Amended Complaint on June 1, 2010 (Docket No. [171]) but the Second Amended Complaint was stricken for failing to comply with Fed. R. Civ. P. 10(a) without prejudice to Plaintiff to correct the deficiency (Docket No. [176]). Plaintiff then filed a Third Amended Complaint on June 11, 2010 (Docket No. [179]). The Third Amended Complaint contains the claim of negligence against Defendant City that is the subject of its Motion to Dismiss.

On June 25, 2010, Defendant City filed the instant Motion to Dismiss the Plaintiff's Third Amended Complaint (Docket No. [191]) asserting that Plaintiff had failed to plead facts sufficient to set forth a plausible claim for which relief can be granted. Plaintiff filed his response to the motion (Docket No. [208]) and Defendant City replied (Docket No. [218]). Oral argument was held on July 29, 2010. The issue of whether ...


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