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Shkedi v. City of Scranton

United States District Court, M.D. Pennsylvania

April 1, 2015

ZVI SHKEDI and SARAH CHANA SHKEDI, et al., Plaintiffs,
v.
CITY OF SCRANTON, et al., Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before me is Defendants'[1] Motion to Dismiss (Doc. 11) Plaintiffs'[2] Complaint. In this litigation, Plaintiffs contend that Defendants deprived them of their constitutional rights in relation to the condemnation of two properties they own in the City of Scranton, Pennsylvania. Defendants have moved to dismiss Plaintiffs' 42 U.S.C. § 1983 procedural due process, substantive due process, equal protection, and First Amendment retaliation claims for failure to state a claim upon which relief can be granted. Because the Complaint adequately sets forth claims for deprivation of Plaintiffs' due process, equal protection, and First Amendment rights, Defendants' motion to dismiss will be denied.

I. Background

The facts as alleged in the Complaint are as follows:

Plaintiff Five Ten Pittston Trust (the "Pittston Trust") is the owner of an eight (8) unit apartment building located on Pittston Avenue in Scranton, Pennsylvania (the "Pittston Avenue Property"). ( Compl., ¶¶ 2, 14.) Plaintiff Four Seventeen Harrison Trust (the "Harrison Trust") is the owner of a four (4) unit apartment building located on Harrison Avenue in Scranton (the "Harrison Avenue Property"). ( Id . at ¶¶ 3, 15.) The Shkedis are trustees of the Pittston Trust and the Harrison Trust, and they are also practicing Hasidic Jews. ( Id . at ¶¶ 21, 40, 88.)

Prior to the events giving rising to this action, only one other incident occurred between the Shkedis as trustees of the Pittston Trust and the City. ( Id . at ¶ 17.) In January 2007, the City's Zoning Code Enforcement Officers issued a Notice of Violation indicating that the Pittston Trust was illegally operating an eighth apartment in a building registered for only seven units. ( Id .) The Shkedis' appeal to the Zoning Hearing Board was unanimously denied, but the subsequent appeal of the Board's decision to the Court of Common Pleas of Lackawanna County was reversed in favor of the Shkedis. ( Id . at ¶¶ 18-19.)

On or about August 28, 2013, Ms. Jennings-Fowler visited the Pittston Avenue Property for an unannounced inspection. ( Id . at ¶ 24.) Ms. Jennings-Fowler entered the property without an administrative search warrant or the consent of the Shkedis. ( Id . at ¶ 25.) At the time, all of the building's eight apartment units were rented. ( Id . at ¶ 26.) Ms. Jennings-Fowler returned to the Pittston Avenue Property the next day and condemned the property without any prior formal notice to the Shkedis or the Pittston Trust. ( Id . at ¶ 27.) Mr. Shkedi was informed of the condemnation of the property by a tenant. ( Id . at ¶ 28.) When Mr. Shkedi arrived at the Pittston Avenue Property, an orange condemnation sign had been placed on the front door. ( Id . at ¶ 29.) Ms. Jennings-Fowler indicated to Mr. Shkedi that she was aware of the 2007 zoning incident. ( Id .)

Following the condemnation, the City had the electric meter removed from the property, requiring all tenants to immediately vacate the premises. ( Id . at 30.) By letter dated August 30, 2013, Ms. Jennings-Fowler outlined the reasons that the Pittston Avenue Property was condemned. ( Id . at ¶¶ 31-33.) However, although the letter was dated August 30, 2013, it was not mailed until September 5, 2013. ( Id . at ¶ 34.)

Thereafter, the Shkedis hired a licensed contractor to paint the inside of the Pittston Avenue Property. While the City does not require a permit for painting, Ms. Jennings-Fowler nevertheless issued a Stop-Work Order to the contractor on September 16, 2013 based on the contractor's failure to have a permit. ( Id . at ¶ 35.) Additionally, following the condemnation of the Pittston Avenue Property, the property was vandalized and burglarized on two occasions. ( Id . at ¶ 37.)

In response to the condemnation, the Shkedis filed a Notice of Appeal to the City's Housing Appeals Board. ( Id . at ¶ 38.) Following a hearing on the Shkedis' appeal in November 2013, the Housing Appeals Board removed the condemnation placed on the Pittston Avenue Property and ordered the City to have the utilities restored to the property. ( Id . at ¶¶ 39-45.) Yet, the City never contacted the utility company to have electricity restored to the Pittston Avenue Property, despite numerous communications between Plaintiffs and the City. ( Id . at ¶ 47.) Finally, by letter dated June 6, 2014, Mr. Hinton, the new Director of the Department of Licensing, Inspections, and Permits, stated that "[b]efore the utilities can be connected, the city's condemnation policy must be followed. Therefore, I am rejecting your request to reconnect the electric power." ( Id . at ¶¶ 49-50.) Enclosed with Mr. Hinton's June 6, 2014 letter was a copy of the City's Condemnation Policy, which requires a property owner to secure a performance bond or cashier's check in the amount of $10, 000.00 to cover demolition costs prior to commencing any rehabilitation work on a condemned property. ( Id . at ¶ 53.) Also enclosed with Mr. Hinton's letter was a letter from the City's Administrative Clerk, which infers that the City considers the Pittston Avenue Property abandoned by reason of nonuse and that the previously approved nonconforming use granted for the property as an eight unit rental building was revoked. ( Id . at ¶ 55.)

By letter dated July 3, 2014, the City informed Plaintiffs that the Pittston Avenue Property was scheduled for demolition due to the dilapidated condition of the structure. ( Id . at ¶ 56.) In response, Plaintiffs filed an appeals application, and a hearing was held before the City's Housing Appeals Board on August 25, 2014. ( Id . at ¶¶ 57-58.) At the hearing, Mr. Hinton and the City Solicitor indicated that the City did not have any records on file that the condemnation of the Pittston Avenue Property was reversed. ( Id . at ¶ 64.) Ultimately, the Housing Appeals Board held that the Pittston Trust had eight months to bring the property up to code, the City was to have electricity restored to the property, the City was to inspect the premises and identify necessary repairs, and the City was to complete a final inspection of the Pittston Avenue Property at the conclusion of eight months and if the property passed the inspection the demolition order would be vacated. ( Id . at ¶ 65.) To date, however, electricity has not been restored to the Pittston Avenue Property. ( Id . at ¶ 67.)

The City also informed Plaintiffs in July 2014 that they failed to register the Pittston Avenue Property and its residential units as required by the City's Code. ( Id . at ¶ 68.) Plaintiffs, however, properly registered the property and paid the annual fee on March 14, 2014, and the registration deadline was not until April 30, 2014. ( Id . at ¶¶ 69-70.) Plaintiffs received an undated letter on or about September 20, 2014 once again informing them that they were past due on the rental registration fee and threatening legal action if the fee was not paid, despite the fact that the fee was paid in full prior to the April 30, 2014 deadline. ( Id . at ¶¶ 73-74.)

In addition to the condemnation proceedings involving the Pittston Avenue Property, the City also condemned the Harrison Avenue Property's two first floor apartments on November 19, 2013, the day after the Shkedis prevailed on their appeal before the Housing Appeals Board involving the Pittston Avenue Property. ( Id . at ¶ 77.) The City condemned the Harrison Avenue Property without any prior notice. ( Id . at ¶ 79.) The tenants were required by Mr. Bannon to vacate the premises immediately, and the tenants caused damage to the Harrison Avenue Property in the process. ( Id . at ¶ 80.) Mr. Bannon indicated by letter to Plaintiffs that the Harrison Avenue Property was subject to condemnation as a result of unsafe wiring, the presence of cockroaches and mice, and people living in the basement. ( Id . at ¶¶ 81-83.) As with the inspection of the Pittston Avenue Property, Mr. Bannon entered the Harrison Avenue Property without an administrative search warrant or the consent of Plaintiffs. ( Id . at ¶ 85.)

In response to the condemnation notice, Plaintiffs filed a Notice of Appeal to the City's Housing Appeals Board. ( Id . at ¶ 86.) A hearing was held on Plaintiffs' appeal on March 31, 2014. ( Id . at ¶ 87.) The Housing Appeals Board did not rule on the appeal and instead continued the matter for ninety days to allow the parties to resolve their issues. ( Id . at ¶ 93.) To date, the two first floor apartments at the Harrison Avenue Property remain vacant, and Plaintiffs have been unable to comply with the City's $10, 000.00 bonding and cashier's check requirement. ( Id . at ¶ 96.)

Additionally, as with the Pittston Avenue Property, the City incorrectly notified Plaintiffs by letter dated July 2, 2014 that they failed to register the Harrison Avenue Property and its residential units as required by the City's Code. ( Id . at ¶ 97.) Plaintiffs, however, registered the property and paid the annual fee over six weeks prior to the registration deadline. ( Id . at ¶¶ 98-99.) Plaintiffs received a second letter on or about September 20, 2014 indicating that they had failed to comply with the registration requirement for the Harrison Avenue Property even though the registration fee had previously been paid in advance of the registration deadline. ( Id . at ¶¶ 102-103.)

Based on the foregoing events, Plaintiffs commenced this action against Defendants on October 27, 2014. In their Seven-Count Complaint, Plaintiffs assert the following causes of action pursuant to 42 U.S.C. § 1983: Fourteenth Amendment Procedural Due Process (Count I): Fourteenth Amendment Substantive Due Process (Count II); Fourteenth Amendment Equal Protection (Count III); First Amendment Retaliation (Count IV); Fifth and Fourteenth Amendments Unlawful Taking (Count V); ...


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