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Win and Son, Inc. v. City of Philadelphia

United States District Court, E.D. Pennsylvania

February 18, 2014



JOHN R. PADOVA, District Judge.

Plaintiffs Win and Son, Inc. and Huan Yi Yu commenced this action against Defendants the City of Philadelphia (the "City"), the City of Philadelphia Department of Licenses and Inspection ("L&I") (collectively, the "City Defendants"), Synertech, Inc. ("Synertech"), Mr. D's Plumbing and Heating, Inc. ("Mr. D's"), and USA Environmental Management, Inc. ("USAEM"), alleging that Defendants demolished a building that Plaintiffs owned, without prior notice to Plaintiffs, and either sold or converted for personal use art and antiques that Plaintiffs had stored in the building. Defendants Synertech and Mr. D's have filed Motions to Dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, we grant their Motions in part and deny them in part.


The Amended Complaint (the "Complaint") alleges that Plaintiffs own real property located at 1325 West Albanus Street in Philadelphia (the "Property"). (Am. Compl. ¶ 10.) Plaintiffs used the building on the Property to store approximately 7, 000 pieces of valuable antiques and art pieces, including objects made out of wood, stone, glass, bronze, and porcelain, the combination of which was valued at more than $10 million. ( Id. ¶¶ 11-12.) On March 16, 2011, Gerard James, an inspector with the Contractual Services Unit of L&I prepared an "Emergency Duty Report, " stating that there had been a partial wall collapse at the Property. ( Id. ¶ 14.) On March 16, 2011, June 17, 2011, and June 18, 2011, the City Defendants attempted to send violation notices to Plaintiffs, but they mailed the notices to incorrect addresses. ( Id. ¶¶ 15, 17, 19.) Plaintiffs' "address for service" on file with the City's Department of Revenue and/or Bureau of Revision of Taxes was 136 Bowery Street, Unit 705, in New York City. ( Id. ¶ 13.) Defendants did not, however, send the violation notices to the Bowery Street address. ( Id. ¶¶ 15, 17, 19.)

On the same days that the City Defendants attempted to send violation notices to Plaintiffs (i.e., March 16, and June 17-18, 2011), they also sent copies of the violation notices to Mr. D's, Synertech, and USAEM. ( Id. ¶¶ 16, 18, 20.) Mr. D's, Synertech and USAEM had all been certified as Local Business Entities pursuant to Section 17-109 of the Philadelphia Code, and had routine working relationships with the City Defendants. ( Id. ¶¶ 23, 25, 27, 29, 31, 33.) On June 18, 2011, USAEM submitted a "Notice of Curbside bid" to the City Defendants, in which it proposed to provide demolition services at the Property, which the City Defendants had requested in their "Master Demolition Program Specifications." ( Id. ¶ 21.)

The City Defendants contracted with Synertech, Mr. D's, and USAEM to perform various services in connection with the demolition of the building located at the Property. Specifically, Synertech entered into an "Asbestos Inspection contract, " Mr. D's entered into an unspecified "services contract, " and USAEM entered into a "demolition services contract." ( Id. ¶ 23, 27, 31.) Work began at the Property on June 20, 2011, when Synertech began performing asbestos inspections. ( Id. ¶ 22.) That same day, Plaintiffs learned for the first time that the Property was undergoing demolition. ( Id. ¶ 34.) The next day, on June 21, 2011, Mr. D's began performing inspections at the Property, and USAEM won its bid to perform the demolition. ( Id. ¶¶ 26, 30.) USAEM's demolition work was completed on September 6, 2011. ( Id. ¶ 32.) Synertech's asbestos work was completed on October 26, 2011. ( Id. ¶ 22.) Mr. D's completed its inspections and work at the Property on November 28, 2011. ( Id. ¶ 28.)

Before, during, and after the demolition, Defendants moved "valuable antiques and pieces of art that had been stored by the Plaintiffs within [Plaintiffs'] building onto the street to sell them, or to convert them for personal use." ( Id. ¶ 36.) Plaintiffs sent a representative to investigate the demolition, and the investigator found that the Property was, in fact, undergoing "demolition, inspection, and the like." ( Id. ¶ 35.) Defendants, however, did not permit Plaintiffs or their representatives to enter the remaining portions of the structure to attempt to salvage their valuable personal property. ( Id. ¶ 38.) Plaintiffs also had no way to stop, postpone, or appeal the demolition or the decision to demolish the Property prior to the work being started and completed. ( Id. ¶ 44.) Following the demolition, the City Defendants sent Plaintiffs a Notice of Abatement for work performed at the Property, which detailed the following expenses: $47, 592.93 for demolition, $1, 326.46 for asbestos onsite inspection, and $844.58 to "Seal Abandoned Lateral." ( Id. ¶ 45.)

The Complaint contains eight Counts, each of which is asserted against all five Defendants. Counts I and VI assert negligence claims. Counts II through V assert claims pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment for violation of Plaintiffs' (1) procedural due process rights (Count II); (2) substantive due process rights (Count III); (3) right to be free from unreasonable searches and seizures (Count IV); and (4) "civil rights" (Count V). Count VII asserts a conversion claim, and Count VIII asserts a trespass claim. In connection with each Count, Plaintiffs seek a joint and several judgment against all Defendants in an amount in excess of fifty thousand dollars.


When considering a motion to dismiss pursuant to Rule 12(b)(6), we "consider only the complaint, exhibits attached to the complaint, [and] matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick. 605 F.3d 223 , 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. DelRio-Mocci v. Connolly Props., Inc. , 672 F.3d 241, 245 (3d Cir. 2012) (citing Warren Gen. Hosp. v. Amgen Inc. , 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Main , 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim, " Fed.R.Civ.P. 8(a)(2), which gives the defendant "fair notice of what the... claim is and the grounds upon which it rests." Twombly , 550 U.S. at 555 (alteration in original) (quotation omitted). The complaint must contain "sufficient factual matter to show that the claim is facially plausible, ' thus enabling the court to draw the reasonable inference that the defendant is liable for [the] misconduct alleged.'" Warren Gen. Hosp. , 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009)). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 556). "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . (quoting Twombly , 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id . (quoting Twombly , 550 U.S. at 557) (alteration in original)). In the end, we will grant a motion to dismiss brought pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level.'" West Run Student Hous. Assocs., LLC v. Huntington Nat'l Bank , 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly , 550 U.S. at 555).


In their Motions, Mr. D's and Synertech argue that all eight Counts of the Complaint fail to state claims upon which relief may be granted under ...

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