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Mary Ann Ciarlone, et al. v. City of Reading

January 20, 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 511 Oley Street, located in Reading, Pennsylvania. In 2008, Irene Lora, Orazio Gerbino, and Anne Baez each rented apartments at the property. Defendants planned a code enforcement inspection for the property and notified Ms. Ciarlone. Ms. Ciarlone requested defendants obtain a search warrant, which they did. After obtaining the warrant, Code Enforcement Administrator Brad Reinhart and Code Enforcement Inspector James Orrs searched the property. Mr. Orrs and Mr. Reinhart did not provide notice to the tenants prior to the search and used force to enter the apartments of the three tenants. Ms. Ciarlone and her tenants filed claims for violations of their constitutional rights.

The City of Reading, Mr. Reinhart, and Mr. Orrs filed this motion for summary judgment.*fn1 For the reasons set forth below, I will grant the motion in part and deny it in part.

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 ¶ 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. Prior to October 10, 2008, the City of Reading had not inspected 511 Oley Street since October 12,1999 and Ms. Ciarlone had not had 511 Oley Street inspected by a private inspector. Defendants' Statement of Facts at ¶¶ 13, 34.

The City of Reading has a Property Maintenance Code and a Housing-Rental Ordinance, which requires the inspection of rental properties every three years. Id. at ¶¶ 14-15. 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. Id. at ¶ 17. The City of Reading did not provide notice of the inspection to the tenants. Id. at ¶ 18. Ms. Ciarlone did not tell the tenants she had received a notice of inspection. Id. at ¶ 21.

On October 7, 2008, Ms. Ciarlone taped a poster to a chair on the porch of 511 Oley Street, stating:

NOTICE 10-7-08

To City of Reading: I/we want our constitutionally and charter protected rights! Attempts by you to enter these premises using police tactics are a violation of these rights. If you return with a warrant, you must immediately call 610-334-7875.

I reserve the right to monitor your presence for quality assurance. Mary Ann Ciarlone Defendants' Statement of Facts at ¶ 22.

On October 7, 2008 at 4:48 p.m., Mr. Orrs appeared at 511 Oley Street pursuant to the notice of inspection. Id. at ¶ 23. Prior to October 7, 2008, Ms. Ciarlone had never met Mr. Orrs. Id. ¶ 24. Ms. Ciarlone video recorded the encounter. Id. During the encounter, Ms. Ciarlone stated: "I am asserting my constitutionally and charter protected right to ask for a warrant." Id. at ¶ 25.

On October 9, 2008, Mr. Orrs completed an affidavit of probable cause and application for a search warrant for 511 Oley Street. Defendants' Statement of Facts at ¶ 27. City of Reading Assistant Solicitor Michelle Mayfield, Esquire, helped Mr. Orrs complete the application for a search warrant. Id. at ¶ 28. Mr. Orrs stated he consults with legal counsel when applying for a warrant, see Defendants' Motion at Exh. 6 at 60, but clarified he had made only one other application for a warrant to search rental property, id.

On the application for search warrant, where it requests "Name of Owner, Occupant or Possessor of said Premises to be Search," Officer Orrs wrote:

Owners Craig A. Ciarlone and Maryann Ciarlone of 709 North 5th Street, Reading, County of Berks, Pennsylvania and Occupants of 511 Oley Street O. Gerbino, I. Lora, A. Ciarlone, A. Baez and/or John Doe 1, John Doe 2, Jane Doe 1 and/or Jane Doe 2.

Mr. Orrs maintained he did not include a statement of whether the tenants had granted or refused access to the property in the affidavit of probable cause "[b]ecause I talked to [Ms. Ciarlone], and she was the one that did not allow me in the property and requested a search warrant." Id. at ¶ 36. He did not recall if Ms. Ciarlone explained whether her tenants had granted or refused access. Id. Mr. Reinhart did not assist Mr. Orrs in completing the application for a search warrant and did not provide any information contained in the application. Id. at ¶ 37. Mr. Reinhart was present on October 9, 2008, when the application was submitted. Id. at ¶ 38. On October 9, 2008, District Justice Thomas H. Xavios approved the administrative search warrant. Id. at ¶ 39.

On October 10, 2008, Mr. Orrs requested a City of Reading police officer accompany him to execute the search warrant. Defendants' Statement of Facts at ¶ 41. Mr. Orrs stated it was standard procedure for police to accompany the property maintenance inspectors when executing a search warrant to provide security. See Defendants' Motion at Exh. 6 at 80. He also stated that before October 10, 2008 he had never requested the assistance of a police officer to execute a warrant, requested a warrant for a property inspection for only one other property, and had asked for police assistance only when there were open and unsecure properties that needed to be boarded up. Id. at 79.

On October 10, 2008, Mr. Orrs, Mr. Reinhart, and a police officer went to 511 Oley Street around 9:00 a.m. or 10:00 a.m. to execute the administrative search warrant. No one was present when they arrived. Mr. Reinhart instructed Mr. Orrs to return to City Hall to call Ms. Ciarlone and advise her that they would return in the afternoon to execute the search warrant. Defendants' Statement of Facts at ¶ 45. Mr. Reinhart and Mr. Orrs returned to 511 Oley Street at 4:00 p.m. on October 10, 2008. Id. at ¶ 47. Ms. Ciarlone and her friend Tina Fuhrman videotaped the execution of the search warrant. Id. at ¶ 48.

Mr. Reinhart and Mr. Orrs met two police officers at 511 Oley Street. The City of Reading Police Department policy is to send two police officers for any call. Id. at ¶ 50. One of the responding officers, Officer Eric Sweitzer, called his on-duty supervisor, Sergeant Marc Pentheny. Officer Sweitzer testified that he had never been trained "on any code enforcement procedures before October 10, 2008" and that he had never interacted with any of the codes administrators, officers, or agents before that day. Plaintiffs' the Statement of Facts at Appendix I at 8, 15, Ciarlone v. City of Reading, No. 09-310 (E.D. Pa. filed Nov. 12, 2010).

Over a period of approximately fifty minutes, Mr. Reinhart, Officer Sweitzer and Sergeant Pentheny asked Ms. Ciarlone to comply with the administrative search warrant and permit the inspection of 511 Oley Street. Defendants' Statement of Facts at ¶ 54. Ms. Ciarlone had keys to the front door and apartments. Id. at ¶ 55. There was no discussion of whether the tenants had been notified. Ms. Ciarlone stated "I am asserting our constitutionally protected rights." Id. at ¶ 57. Mr. Reinhart testified the search did not need to be conducted at a particular time and that if a tenant does not permit access he can "charge a non-entry" to compel access. Response to Statement of Facts at ¶ 15, 16.

When Ms. Ciarlone refused to permit entry, Sergeant Pentheny called the Berks County District Attorney's Office to confirm the warrant was valid and could be executed through the use of force. Defendants' Statement of Facts at ¶ 59. Based on this conversation, it was Sergeant Pentheny's understanding the administrative search warrant was valid and could be executed through the use of force, if necessary. Id. at ¶ 62. Sergeant Pentheny communicated this understanding to Mr. Reinhart. Id. at ¶ 63. Ms. Ciarlone continued to refuse to grant entry. Id. at ¶ 65.

Mr. Orrs inspected the exterior of the property. Defendants' Statement of Facts at ¶ 66. Mr. Reinhart again advised Ms. Ciarlone to open the door. Mr. Reinhart then knocked on the door and announced he was with the City of Reading Codes Department and requested that the door be opened. Id. at ¶ 67. Mr. Reinhart told Mr. Orrs to break the door. Id. at ¶ 68. Mr. Orrs struck the door with a sledge hammer six times before the glass broke. Id. at ¶ 69. After the glass broke, Mr. Orrs hit the door four more times before someone suggested he stick his hand in the door and turn the latch. Id.

Ms. Ciarlone refused to unlock the interior doors. Defendants' Statement of Facts at ¶ 71. Mr. Orrs and Mr. Reinhart knocked and announced their presence at each tenant door. Id. at ¶ 71. They broke the doors. Id. They left a signed copy of the administrative search warrant in each unit. Id. at ¶ 73. After the officers left, Ms. Ciarlone went into each apartment and removed the search warrants. Id. at ¶ 74. She never gave the tenants a copy of the administrative search warrant or advised the tenants a search warrant had been left for them by the City of Reading. Id. at ¶ 75.

Prior to departing, Mr. Orrs issued Ms. Ciarlone a notice of violation, which required Ms. Ciarlone to, among other items, "repair all entrance doors and all windows at entrance doors." Response to Statement of Facts at ¶ 42. Ms. Ciarlone testified it was her responsibility to pay for the damage to the doors, not the tenants' responsibility. See Defendants' Statement of Facts at ¶ 77.

When Ms. Baez returned home at 8:00 p.m. she had a message on her answering machine from Ms. Ciarlone stating people who work for the City of Reading would be coming to the apartment and Ms. Baez should not let them in. Defendants' Statement of Facts at ¶ 76.

Karen Organtini, a clerk with the City of Reading Property Maintenance Division, stated Mr. Reinhart made negative comments about Ms. Ciarlone. She could not remember specific comments. Plaintiff's Statement of Facts at Appendix A at 42. In addition, another employee at the office made comments about Ms. Ciarlone, which Ms. Organtini paraphrased as "we're going -- basically we're going to get in or we're going to -- because she's in my areas and I have someone that isn't happy with her." Id. at 43. It was unclear whether the person who was unhappy with Ms. ...


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