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Mason v. City of Philadelphia

United States District Court, E.D. Pennsylvania

September 2, 2014

THE CITY OF PHILADELPHIA, et al., Defendants.


ROBERT F. KELLY, Sr., District Judge.

Presently before the Court is Defendants, "Robert H. Messerman, Esq. Law Firm and its Employee and Earl Smith's" (the "Moving Defendants"), Motion to Dismiss the Complaint of Florence Elizabeth Mason ("Plaintiff"), in her own right and on behalf of, Vincent T. Mason, Jr., and Crystal Mason, [1] and Plaintiff's Response. For the reasons set forth below, this Motion will be granted.[2]


Plaintiff, in her own right and on behalf of, Vincent Jr. and Crystal, initiated this action by filing an application to "Proceed In Forma Pauperis" on September 4, 2013. This Court granted the Motion on September 13, 2013, and on this same day, Plaintiff filed a Complaint naming a long list of Defendants including the following individuals and entities: the Moving Defendants; the City of Philadelphia Police Department ("PPD"); Police Commissioner Charles H. Ramsey; 14th Police District Captain John Fleming; 35th Police District Captain Joseph Fredricsdorf; 14th Police District individual officers Lt. Kopeki, Lt. Whaley, Lt. Tees, Officer Hummel, Officer Lamdherr, Officer Medycki, and "EDT" Miston; 35th Police District individual officers Officer Riddock, Officer Long, Captain Diguisse, Lt. Larks, Sergeant Kensy, Officer Sath, Officer Meril, and Officer Lackey; the Philadelphia Municipal Court Landlord Tenant Civil Division and the Office of the Clerks;[3] John and Jane Does of the Philadelphia Animal Control Unit; the Philadelphia Housing Authority's ("PHA") Kenneth A. Jeremiah (President and Chief Operating Officer); Patrick Agnew (Office of PHA Audit and Compliance investigation officer); Frank McLaughlin (Chief of Investigation of the PHA); Bart E. Levy, Esq., and his law firm, Third Corsa, Inc. (Elaine Luckin and Lenny Luckin); Svetlan Schilomovich; and Kenneth L. Baritz Esq., and the Law Firm of Kenneth L. Baritz & Associates.[4] See Compl. ¶¶ 8-16.

Plaintiff's pro se Complaint[5] avers that all Defendants violated their civil rights by malicious prosecution (Count I), selective prosecution (Count II), false arrest (Count III), false imprisonment (Count IV), and excessive force (Count V). Id . ¶¶ 51-87. Plaintiff also alleges a "Monell"[6] claim against the City of Philadelphia (Count VI), and state law claims against all Defendants of false arrest/false imprisonment (Count VII), malicious prosecution (Count VIII), assault and battery and intentional infliction of emotional distress (Count IX), and loss of consortium (Count X). Id . ¶¶ 88-103.

Plaintiff contends that:

[t]he Complaint arises out of a lease agreement for Section 8 housing that the Plaintiffs had with Defendant Shilomovich, and with extreme and outrageous course of conduct in which Shilomovich engaged in conspiracy with the other named Defendants, which involved violations of the Plaintiff's [sic] First, Fourth, and Fourteenth Amendment rights, and included physical assaults, excessive force and unlawful arrests of all of the named Plaintiffs by the named Philadelphia City Police officer defendants, and their unlawful incarceration, and other abuses and acts of mistreatment to which they have been, and continue to be subjected.

Id. ¶ 18.

The essence of the Complaint involves an action for eviction from Plaintiff's "Section 8" housing.[7] An action for eviction was initiated in the Philadelphia Municipal Court ("Municipal Court") (No. LT-11-01-06-3627) where, on March 14, 2011, the Court entered judgment[8] against Vincent Mason Sr. and "All Occupants" and for Defendant "Third Corsa (AKA/DBA: Elaine Luckin)". See Compl., Ex. A. The Court issued an order for eviction at 160 E. Meehan Avenue, Philadelphia, Pennsylvania. (the "Property"). Id . Plaintiff contends that Defendant PPD began efforts to evict Plaintiff on four separate occasions, which resulted in violations of her rights by the PPD and the other Defendants. Id . ¶ 20.

We now will focus on the allegations in the Complaint specifically involving the Moving Defendants who are mentioned in paragraphs 24-26 of the Complaint. See Id . ¶¶ 24-26. Plaintiff avers that:

[t]he Defendants effectuated their abuse and misconduct through a contrived issuance of an order from the Philadelphia Municipal Court which was not served on the Plaintiffs at their house by prior to the descending of Defendant Earl Smith, from the Law Firm of ROBERT H. MESSERMAN'S Office solicited by the Municipal Court Landlord Tenant Unit to intimidate and strike fair [sic] into those litigants that comes [sic] before the court and stand and fight against the abuse and oppression rendered within the Landlord Tenant Court outside the rules of law and procedures of that court, under the pretense of being a lawful and valid order, which it was not, being barred by a properly granted SUPERSEDEAS BOND from the Appellate Court of Common Pleas on March 14th, 2011. Plaintiffs refused to leave the property because they had prevailed in the action to evict them from their premises prior to as rendered by the Appellate Court of July 07th, 2011, and by Order in August 2011, confirming, who was the Defendant/Appellant and who was the Plaintiff/Appellee in prior and current actions of the Courts. Elaine Luckin, Shilomovich, Baritz and Earl Smith had pre-planned and arranged for the Philadelphia Police Defendants to be present there to effectuate a forced illegal strong arm eviction.

Id. ¶ 24. Plaintiff further alleges that, at the scene of the Property, when the eviction was being carried out, two police officers apparently knew that Plaintiff and her minor children were being wrongfully evicted and "attempted to inform their commanding officers that they were being lied to, " and that such occurred because of the misrepresentations of the "Municipal Court & Law Firm Robert H. Messerman's officer & employee Earl Smith." Id . ¶ 26.

As already noted, Plaintiff's allegations arise from the underlying Municipal Court and Philadelphia County Court of Common Pleas ("Court of Common Pleas") actions. In the Municipal Court action, judgment in possession was entered against Vincent Mason, Sr. ("Vincent Sr.")[9] on March 14, 2011. See Id., Ex. A. On this same date, Plaintiff and Vincent Sr. appealed this judgment to the Court of Common Pleas seeking supersedeas.[10] See Id., Ex. D. Supersedeas was granted on this same day. Id . However, on June 7, 2011, the appeal was voluntarily "discontinued" (No. LT-11-01-06-3627). (See Pl.'s Resp., Ex. G at 4.) Upon discontinuance of the appeal, supersedeas was automatically terminated.[11]

On July 15, 2011, Defendant Third Corsa filed a Writ of Possession in the Municipal Court, and on August 1, 2011, filed an Alias Writ.[12] (Id.) Four days after Plaintiff had been previously evicted on September 19, 2011, but had reentered the Property, Defendant Third Corsa filed a Petition to reissue the "Alias Writ" and ...

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