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John Bell v. Township of Concord

January 10, 2011

JOHN BELL
PLAINTIFF,
v.
TOWNSHIP OF CONCORD, ET AL., DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff John Bell ("Plaintiff") initiated this action against Defendants Township of Concord (the "Township") and Manos Kavadias ("Kavadias"), in his individual and official capacity as Director of Code Enforcement, (collectively "Defendants"), alleging violations of his civil rights under the Fourteenth Amendment, pursuant to 42 U.S.C. §§ 1983 and 1988, and applicable state law.*fn1 Plaintiff seeks $100,000 in compensatory and punitive damages, alleging that he was forced to defend a civil action initiated by Defendants that was later dismissed, in which he denied being the proper defendant.

Before the Court is Defendants' Motion for Summary Judgment. First, the Court will address Plaintiff's § 1983 due process claims and determine whether summary judgment is appropriate. Second, the Court will address Plaintiff's Pennsylvania state law claims to determine whether summary judgment is appropriate.

For the reasons set forth below, the Court concludes that summary judgment will be granted as to both Defendants.

II. BACKGROUND

On July 27, 2009, Plaintiff initiated this action against Defendants Township and Kavadias. Plaintiff's claims against Defendants, jointly and severally, are as follows: (1) Policy/Custom on the Use of Code Enforcement Lawsuits, in violation of §§ 1983, 1988 and the Fourteenth Amendment; (2) Failure to Train and Supervise, in violation of §§ 1983, 1988;

(3) Abuse of judicial process, in violation of §§ 1983, 1988; and

(4) Pendent State Claims: abuse of process, battery, intentional infliction of emotional distress, and due process, in violation Pennsylvania state law. (See Compl. ¶ 19-32.) Plaintiff alleges that he incurred "significant stress, anxiety, worry, and costs" due to Defendants' initiation of the state lawsuit. (See Compl.¶16.)

The Plaintiff worked as a real estate agent for RE/MAX Integrity and represented the property owner (the "Seller") in the sale of 10 Pennock Drive, Boothwyn, Pennsylvania (the "Property"), within the Defendant Township. Pursuant to Concord Township Code (the "Code"), a property cannot be sold prior to issuance of a certificate of occupancy. (See Concord Township Code §§ 90-1 through 90-7, Defs.' Mot. Summ. J. Ex. A ("Def.Ex.").) Further, any violations of the Code must be corrected prior to issuance of the Certificate or, if the violations are not corrected prior to the sale, funds sufficient to correct the violation must be placed in escrow. (Id. at § 90-4(A).)

Plaintiff, or his real estate office, contacted the Township and inquired about the requirements for obtaining a certificate of occupancy so that the Seller could sell the Property. (Pl.'s Dep. 12.) In response, on October 14, 2008, Plaintiff received a fax from the Township detailing the requirements of the Code and including an application for a certificate of occupancy. (Fax From Township to Plaintiff, Def. Ex. B.) Plaintiff, or his office, filled out the application for the certificate and sent it back to the Township. On October 23, 2008, the Property was inspected by Defendant Kavadias, a code inspector of the Township's Code Enforcement Office. (Resale Inspection Form, Def. Ex. D.) At the conclusion of the inspection, Kavadias, noted that a "portion of the apron of the driveway" needed replacement prior to issuance of the Certificate. (Id.)

On October 24, 2008, Plaintiff emailed Kavadias, "requesting permission to have 30 days after the settlement on 10/31/2008 for buyer to repair." (Emails Between Kavadias and Plaintiff, Def. Ex. U.) Kavadias responded that he is "not authorized to grant such a request," and that "repairs must be made prior to receipt of the [Certificate]." (Id.) Plaintiff then spoke to a manager in the Township's Code Office who sent Susan Fox to do a follow-up inspection of the Property and verify the damage. (Pl.'s Dep. 28.) A few days later, the manager contacted Plaintiff and told him that Fox found more damage and that the Seller would be required to make the repairs to receive the certificate of occupancy. (Id.)*fn2 The tenor of the conversation between the Plaintiff and the manager was "normal[ for] a business type of situation" and in the conversation with Kavadias, Kavadias sounded "somewhat irritated." (Id. at 29.)

On December 8, 2008, the Township informed Plaintiff, via a fax, that instead of making the repairs the Seller could put $600 in an escrow account, receive the Certificate, and proceed with the sale. (Fax from Township to Plaintiff, Def. Ex.E.) Plaintiff informed the Seller of the December 8, 2008 fax. (Pl.'s Dep. 33.) Plaintiff did not contact the Township in response or the buyers of the Property. (Id.)

Meanwhile, the sale of the Property closed on November 19, 2008, with no repairs made, escrow account, or certificate of occupancy. (HUD Forms, Def. Ex. F.) At the time of the closing, Plaintiff knew that a certificate of occupancy had not been issued. (Pl.'s Dep. 28) Plaintiff alleges that it was the Seller's decision to continue with the sale anyway. (Id. at 30-31.) Plaintiff did not inform the buyers of the missing certificate of occupancy. (Id. at 32.)

On January 12, 2009, the Township received a monthly deed report for real estate transfers which notified the Township that the Property had been sold. (Monthly Deed Report, Def. Ex.G.) On March 13, 2009, the Township filed suit against Plaintiff John Bell-Re/MAX Integrity in the Magisterial District Court 32-2-40 (the "DJ Complaint"), alleging that the real estate firm violated the Township Code. (DJ Complaint, Def. Ex. H.) Although the Code required that the Township notify Plaintiff before filing action, the Township did not. (Kavadias Dep. 46-48.) A hearing was scheduled for April 7, 2009. (Hearing Notice, Def. Ex. I.) On March 13, 2009, Plaintiff notified the magisterial court that he intended to present a defense. (Notice of Intent to Defend, Def. Ex. J.)

Plaintiff, acting pro se, contacted the Township solicitor, Hugh Donaghue, Esq., to say that he believed the Township mistakenly brought the DJ Complaint against him and his real estate firm instead of the Seller. (Pl.'s Dep. 36.) Donaghue responded, "if that is your defense, tell it to the judge." (Id.) Plaintiff hired counsel, and on March 19, 2009 Plaintiff's counsel reiterated to Donaghue that Plaintiff believed the DJ Complaint named the wrong person and that the Township should have named the Seller. (Letter from Plaintiff's Counsel to Township, Def. Ex. K.) Donaghue was also notified that Plaintiff intended to request subpeonas to have multiple Township employees appear at the hearing. (Donaghue Aff. 10., Def. Ex.L.)

On March 24, 2009, the Township withdrew the action and cc'd Plaintiff on its letter to the court. (Letter from Township to Magisterial District Court, Def. Ex. M.) Donaghue notified Plaintiff of the withdrawal on March 31, 2009. (Letter from Donaghue to Plaintiff's Counsel, Def. Ex. Q.) On March 31, 2009, Plaintiff sent a letter to Donaghue seeking $2,500 in attorney fees and $5,000 in alleged damages from the Township. (Letter from Plaintiff's Counsel to Donaghue, Def. Ex. R.)

On July 27, 2009, Plaintiff filed his complaint in this Court. On June 11, 2010, Defendants filed an answer, denying liability and averring that no acts violated Plaintiff's federal or state rights. Defendants asserted various affirmative defenses, including but not limited to, failure to state a cause of ...


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