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Mary Ann Ciarlone, et al v. City of Reading

January 19, 2011

MARY ANN CIARLONE, ET AL PLAINTIFFS,
v.
CITY OF READING, ET AL. DEFENDANTS,



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

MEMORANDUM OPINION

Mary Ann Ciarlone owns property located at 511 Oley Street, Reading, Pennsylvania. Irene Lora, Orazio Gerbino, and Anne Baez each rent an apartment at the property. The City of Reading sent notice to Ms. Ciarlone that the property would be inspected. Ms. Ciarlone requested the inspectors obtain a search warrant. The inspectors obtained a search warrant, and returned to conduct the inspection. The inspectors did not inform the tenants of the inspection or search warrant and used a sledge hammer to gain access to the property.

Thomas McMahon, Jatinder Khokhar, and Ryan Hottenstein filed this motion for summary judgment.*fn1 For the reasons set forth below, I will grant the motion.

I. Background

Mary Ann Ciarlone owns a residential rental property at 511 Oley Street, Reading, Pennsylvania.*fn2 Irene Lora, Anne Baez, and Orazio Gerbino live as tenants at 511 Oley Street. Defendants' Statement of Facts at ¶¶ 2-4. Brad Reinhart is the codes administrator for the City of Reading, id. ¶ 5, and James Orrs was a property maintenance inspector for the City of Reading, id. at ¶ 6. Thomas McMahon is the Mayor of the City of Reading. Id. at ¶ 7. In 2008, Ryan Hottenstein was the managing director of the City of Reading. Id. at ¶ 8. On October 10, 2008, Jatinder Khokhar was the manager of the office of building inspections and zoning services. Id. at ¶ 9.

Through a letter dated September 24, 2008, the City of Reading notified Ms. Ciarlone that a property maintenance inspection for 511 Oley Street was scheduled for October 7, 2008. Defendants' Statement of Facts at ¶ 17. The City of Reading did not provide notice of the inspection to the tenants. Id. at ¶ 18. At the request of Ms. Ciarlone, Mr. Orrs obtained a search warrant. Mr. Orrs, Mr. Reinhart, and a police officer went to the property to execute the warrant on October 10, 2008. Defendants' Statement of Facts at ¶ 41. No one was at the property. Mr. Reinhart asked Mr. Orrs to call Ms. Ciarlone and inform her they would return that afternoon to execute the warrant. Id. at ¶ 45. At approximately 4:00 p.m. Mr. Reinhart and Mr. Orrs returned to the property with two officers. Id. at ¶ 47. After 50 minutes of requesting Ms. Ciarlone to open the door, they used a sledge hammer to gain access to the property. Id. at ¶¶ 54, 69. They also used the sledge hammer to gain access to the tenants' apartments. Id. at ¶ 71.

In 2008 Mr. Khokhar was the manager for the offices of building inspections, zoning services, and code enforcement. Defendants' Statement of Facts at ¶ 83. In July or August 2008, the responsibilities for the code enforcement division were taken from Mr. Khokhar and given to Mr. Reinhart. Id. at ¶ 85. In October 2008, Mr. Khokhar had no supervisory responsibilities for the code enforcement division, was not responsible for the division's training, and did not have authority to fire or discipline Mr. Reinhart or Mr. Orrs. Id. at ¶ 87. Prior to the execution of the search warrant on 511 Oley Street, Mr. Khokhar did not know anything about the scheduled inspection or that a search warrant had been issued. Id. at ¶ 88.

As managing director for the City of Reading, Mr. Hottenstein was responsible for the overall management of city operations. Defendants' Statement of Facts at ¶ 94. Prior to the execution of the warrant, Mr. Hottenstein did not know anything about the scheduled inspection of 511 Oley Street or about the execution of the search warrant. Id. at ¶ 101.

Mayor McMahon helps formulate policy, goals and objectives for the City of Reading on a "macro level." Defendants Statement of Facts at ¶ 103. He does not create procedures for the code enforcement division. The heads of the departments are responsible for creating procedures. Id. at ¶ 104. Mayor McMahon testified the department heads are responsible for investigating and disciplining the employees in their departments. Defendants' Statement of Facts at Exh. 7 at 138.

Mayor McMahon explained his administration "possibly" had a "zero tolerance policy towards code enforcement" that was not documented. He hoped "that code enforcement would not neglect violations or enforcement of ordinances for violations." Plaintiffs' Statement of Facts at Appendix F at 54-56, Ciarlone v. City of Reading, No. 09-319 (E.D. Pa. filed Nov. 12, 2010). He testified at his deposition that the police accompany code enforcement officers to give the inspections legitimacy and it has been a policy of his administration to "get landlords to take the property inspection scheme more seriously." Id. at 61.

Mayor McMahon's administration had a goal to "limit rental housing to the elderly and to the special needs." Plaintiffs' Statement of Facts at Appendix F at 33. This is in part because of the "broken windows theory,"*fn3 which promotes stability in a neighborhood to reduce crime. See Plaintiffs' Statement of Facts at Exh. F at 35. Between 2007 and 2008, there was a 400 percent increase in conviction rates for code violations. Id. at 50. In addition, Karen Organtini, a clerk with the property maintenance division, was deposed in 2009. She testified that for the two years preceding the deposition there had been a shift in policy regarding property maintenance inspections to make them "more intense." Plaintiffs' Statement of Facts at Appendix A at 25.

Prior to the execution of the search warrant at 511 Oley Street, Mayor McMahon never discussed or suggested to anyone that an inspection of the property should be conducted or that a warrant should be obtained. Defendants' Statement of Facts at ¶ 107. He also did not discuss how the warrant should be executed. Id. at ¶ 108.

The City of Reading provides training to its property maintenance inspectors, including International Code Council seminars. See Defendants' Statement of Facts at Exh. 6 at 16-17. In June 2008, the City of Reading conducted a required training session for all code enforcement officers. Id.; Defendants' Statement of Facts at Exh. 5 at 37-38.*fn4

The June 2008 instructors included attorneys from the law firm of Deasey, Mahoney, Valentini & North, Ltd. and Captain Drexler and Sergeant Monteiro of the City of Reading Police Department. See Defendants' Statement of Facts at Exh. 6 at 60; Defendants' Statement of Facts at Exh. 22. The training included training on the right to entry, how to prepare an affidavit of probable cause, prohibition against retaliation, sensitivity to the possible perception of harassment and intimidation, and civil rights under the Fourth Amendment to the United States Constitution. See Defendants' Statement of Facts at Exh. 22. There was no training on ...


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