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Shawn Bullard v. City of Philadelphia

February 13, 2012

SHAWN BULLARD, PLAINTIFF,
v.
CITY OF PHILADELPHIA, DEFENDANT.



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

MEMORANDUM OPINION

This is a civil rights action arising out of the City of Philadelphia's demolition of Plaintiff's property. Plaintiff alleges that the City failed to provide him with constitutionally adequate notice prior to demolition in violation of his procedural and substantive due process rights under the United States Constitution. The parties have filed cross-motions for summary judgment. For the reasons that follow, Plaintiff's Motion will be granted in part.

I. F ACTUAL B ACKGROUND*fn1

When a building located on private property within city limits "is being maintained in a condition which is found to be hazardous, structurally unsound, dangerous or unfit for human habitation and in violation of any law or ordinance," the City of Philadelphia (the "City") is authorized to take certain actions to ensure that the "unsafe" or "imminently dangerous" condition created by the structure is eliminated. *fn2 The Philadelphia Department of Licenses and Inspections ("L&I") begins by declaring the building to be a nuisance, and serving notice upon the "registered owner of the building . . . directing the abatement of the nuisance." *fn3 "The notice shall reasonably specify such repairs or such other measures, including demolition, as may be necessary to abate the nuisance and shall require their completion within a reasonable time not less than thirty days from the date of service of the notice." *fn4

The Emergency Service and Abatement Unit (the "Unit"), a subdivision of L&I, is responsible for the City's demolition and abatement program. *fn5 Scott Mulderig is the Unit's Chief. *fn6 The Unit's inspectors are responsible for responding to complaints about properties and issuing notices of violations if they determine a property is "unsafe" or "imminently dangerous." *fn7 According to Chief Mulderig, a Unit Inspector may designate a property "unsafe" when, upon visual inspection, the inspector determines that there is "a structural component that is deteriorated or failed." *fn8 No independent testing is done to determine whether structural elements have failed. *fn9 A property is "imminently dangerous" when a structural component has failed and the building is in danger of collapsing. *fn10 Both designations involve a failed structural element; the difference between "unsafe" and "imminently dangerous" is whether the structure is in danger of collapse. *fn11 As with an "unsafe" classification, an "imminently dangerous" classification is made after a visual inspection only and without any independent testing done to verify the Unit's classification. *fn12

A Unit Inspector who determines that the property is "unsafe" or "imminently dangerous" sends a violation notice on behalf of the City to the record owner of the property. *fn13 A standard notice indicates that the owner must demolish or repair the property, and that failure to do so may result in the City demolishing the property. *fn14 The Emergency Services and Abatement Unit Field Manual (the "Field Manual") provides that an owner has thirty days within which to comply in the case of an "unsafe" violation and ten days to comply in the case of an "imminently dangerous" violation. *fn15 If an owner fails to comply within the time allowed, the City may demolish or repair the building and charge the owner for the cost of demolition or repair; Chief Mulderig has the final authority to order that a building be demolished. *fn16

A property designated as "unsafe" or "imminently dangerous" may be subject to demolition by the City, using either a curb-side bid process or a standard procurement process, pursuant to written guidelines contained in the Field Manual. *fn17 A standard procurement process requires demolition bids to be solicited and a contractor to be chosen by the City's Procurement Department. *fn18 A curb-side bid process is typically used in emergency situations where immediate demolition is necessary. *fn19 The Unit solicits bids from demolition contractors on-site at the property subject to demolition; the winning contractor demolishes the building immediately after winning the bid. *fn20 Before either process occurs, however, the Field Manual requires that an inspector "[c]heck to ensure the owner received notice . . . [and] to see if the property has been sold and if there is a new owner; if there is a new owner, [an inspector must] notify the [new] owner and update the case in the database."

On July 12, 2010, L&I determined that the property located at 1603 Willington Street in Philadelphia (the "Property"), was "imminently dangerous" in violation of Philadelphia Maintenance Code Section 308. *fn21 That same day, the City mailed a notice of violation to Frankie Thompson, the record owner of the Property. *fn22 Ms. Thompson was deceased at the time. *fn23

Plaintiff Shawn Bullard owns a student housing and real estate investment firm. *fn24 In this capacity, he buys properties located in Philadelphia, renovates them, and then rents the properties to college students. *fn25 He has been in the business for about seven years and owns eleven properties. *fn26 Bullard had been interested in buying the Property for several years before July 2010. *fn27 He had seen the Property on many occasions and had periodically checked public records to determine if the Property was subject to a Philadelphia Property Maintenance Code violation; none of his searches revealed a violation on the Property. *fn28 Bullard purchased the Property on July 29, 2010. *fn29 Prior to becoming the record owner, he began to make preparations to renovate the Property. *fn30 On July 18, 2010, he applied for a building permit, but was denied a permit because of the July 12, 2010 violation on the Property. *fn31 Bullard was not aware of the nature or status of the violation at that time. *fn32
On July 23, 2010, Inspector Thomas Sweeney visited the Property in response to a call he received through the City's municipal radio system suggesting that the Property was in violation of the Philadelphia Property Maintenance Code. *fn33 When Sweeney assessed the Property, he was unaware that another inspector had previously assessed the Property and found it "imminently dangerous." *fn34 Sweeney made a visual inspection of the Property and determined that it was "unsafe." *fn35 He affixed a blaze orange "Notice of Violation" sticker on the Property stating:

THIS POSTER SERVES AS NOTICE TO YOU THAT THE DEPARTMENT OF LICENSES AND INSPECTIONS HAS DETERMINED THAT THIS PREMISES IS IN VIOLATION AND UNSAFE PURSUANT TO PROPERTY MAINTENANCE CODE SECTION PM- 307.0.

YOU ARE ORDERED TO REPAIR OR DEMOLISH THE PREMISES WITHIN 30 DAYS OF THIS NOTICE. YOU ARE REQUIRED TO OBTAIN ALL NECESSARY PERMITS TO REPAIR OR DEMOLISH THE PREMISES. IF YOU FAIL TO OBEY THIS ORDER, THE STRUCTURE IS SUBJECT TO DEMOLITION BY THE CITY AT ANYTIME AFTER THE EXPIRATION OF THE 30 DAYS FROM THE NOTICE. THE CITY WILL STUCCO THE PARTY WALLS EXPOSED BY THE DEMOLITION IN ACCORDANCE WITH ALL APPLICABLE PROVISIONS OF THE PHILADELPHIA CODE.

YOU WILL BE BILLED FOR ALL COSTS INCURRED AND ADMINISTRATIVE FEES.

FAILURE TO PAY THESE COSTS AND FEES WILL RESULT IN LIENS BEING PLACED AGAINST THE TITLE TO THE PREMISES. *fn36

The posted notice also provided that the owner had five days to appeal the violation. *fn37 Bullard was present at the Property at the time Sweeney posted the notice at the Property. *fn38 Sweeney told Bullard to hire an engineer to ...


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