United States District Court, E.D. Pennsylvania
brought this civil rights action under 42 U.S.C. § 1983,
claiming the defendants violated his constitutional rights
under the Fourth and Fourteenth Amendments as a result of
actions they allegedly took regarding the partial demolition
of a building on property Plaintiff owned in the City of
Reading. Plaintiff seeks damages for the loss and
reconstruction of the building as well as for the loss of
certain personal property which he claims was destroyed or
stolen from the property. Named as defendants are the City of
Reading, Vaughn Spencer, the former Mayor of the City of
Reading, William Heim, the Chief of Police of the City of
Reading, Brian Nicarry, the Director of Bureau of
Building/Trade/Fire of the City of Reading, O'Brien
Wrecking Company, Inc. and a number of John Does
(collectively, the “defendants”). The defendants
were subsequently granted leave to file a third party
complaint against Dinosaur Demolition, LLC and O'Brien
Wrecking Company. Presently before the Court is the
defendants' motion for summary judgment. For the reasons
that follow, the motion is granted.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). “A
motion for summary judgment will not be defeated by
‘the mere existence' of some disputed facts, but
will be denied when there is a genuine issue of material
fact.” Am. Eagle Outfitters v. Lyle & Scott
Ltd., 584 F.3d 575, 581 (3d Cir. 2009)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-248 (1986)). A fact is “material” if proof of
its existence or non-existence might affect the outcome of
the litigation, and a dispute is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
undertaking this analysis, the court views the facts in the
light most favorable to the non-moving party. “After
making all reasonable inferences in the nonmoving party's
favor, there is a genuine issue of material fact if a
reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. and N.J., 593 F.3d
265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v.
Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the
moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the non-moving party who must “set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 250.
OF PLAINTIFF'S COUNSEL
Plaintiff's counsel never conducted any discovery in this
matter, including noticing depositions, serving subpoenas or
propounding written discovery. In addition,
Plaintiff''s counsel has repeatedly failed to timely
and adequately respond to defendants' requests for
production of documents as well as to Orders from this Court
and Magistrate Judge Lloret compelling Plaintiff to do so.
(ECF 24, 52.) As a result, defendants have also filed a
motion for sanctions, seeking dismissal of this action in its
entirety. Furthermore, after defendants filed their motion
for summary judgment, Plaintiff's counsel began to file
motions for extensions of time to respond to the motion for
summary judgment (ECF 60, 64), both of which were opposed by
defendants. Nevertheless, the Court very leniently granted
both motions for extensions. (ECF 63, 66.) The response
ultimately filed by Plaintiff''s counsel consisted of
two paragraphs requesting that the Court deny the motion for
summary judgment “for the reasons set forth in
Plaintiff's accompanying Memorandum of Law Contra Motion
for Summary Judgment.” (ECF 68.) However,
Plaintiff's response did not contain any such
“accompanying Memorandum of Law.” (ECF 68.)
Plaintiff's counsel also failed to respond to
defendants' statement of undisputed facts in support of
their motion for summary judgment. (ECF 55.)
the Court finds that the following facts are either not in
dispute or construed in the light most favorable to
Plaintiff. The exhibits cited refer to the exhibits attached
to defendants' statement of undisputed facts. (ECF 55.)
Plaintiff, Harry Stouffer is the owner of 1237 Buttonwood
Street, Reading, Pennsylvania, and he still owns the property
today. (N.T., Harry Stouffer, March 1, 2016, at p. 30,
Exhibit “1”). (1237 Buttonwood Street is referred
to as “the Property” and the structure on 1237
Buttonwood Street is referred to as “the
Stouffer is a Caucasian male. (See defendants' Requests
for Admission Directed to Plaintiff, Harry Stouffer at No.
21. Exhibit “2”). Plaintiff did not respond or
object to the Request within 30 days, so the Request is
deemed admitted pursuant to Fed.R.Civ.P. No. 36(a)(3)).
all times relevant to this lawsuit, Defendant, Vaughn Spencer
(“Mayor Spencer”), was the Mayor of the City of
Reading. (See Affidavit of Vaughn Spencer, Exhibit
all times relevant to this lawsuit, Defendant, William Heim
(“Chief Heim”), was the Chief of Police for the
City of Reading. (See Affidavit of William Heim, Exhibit
all times relevant to this lawsuit, Defendant, Brian Nicarry
(“Inspector Nicarry”), was a Building Inspector
for the City of Reading. (See Affidavit of Brian Nicarry,
Stouffer testified that the local water company shut off the
water to the Building in 1990 or 1991, and the water meter
had been removed. (Exhibit “1” at pp. 40-41).
Public gas and electricity had been cut off from the Building
prior to June 2013, but Stouffer does not recall when they
were discontinued. (Exhibit “1” at pp. 46-47).
2000 or 2001, there was a fire at the Building which Stouffer
suspects was caused by arson. (Exhibit “6”, at p.
of June 2013, Stouffer had performed improvements to six
rooms in the Building. (Exhibit “6” at p. 56).
City of Reading Blighted Property Review Committee certified
the Building as blighted on November 18, 2010. (Exhibit
City of Reading Blighted Property Review Committee based its
determination on the following reasons:
1) Any premises which because of physical condition or use is
regarded as a public nuisance at common law, or has been
declared a public nuisance in accordance with the local
housing, building, plumbing, for and related codes. 2) Any
dwelling which because of its dilapidated, unsanitary,
unsafe, vermin infested state or because of its lacking in
the facilities and equipment required by the housing or
building codes of the municipality, has been designated by
the department responsible for enforcement of the code as
unfit for human habitation. 3) Any structure which is a fire
hazard, or is otherwise dangerous to the safety of persons or
property. 4) Any structure, form in which utilities,
plumbing, heating, sewerage or other facilities have been
disconnected, destroyed, removed or rendered ineffective so
that the property is unfit for its intended use.
of Designation of Blighted Property for 1237 Buttonwood
Street, Exhibit “8”).
Stouffer testified that he spoke with Lee Olsen, who was a
member of the City of Reading Blighted Property Review
Committee, and testified that Olsen told Stouffer he would
take the Property off the Blighted Property list; however,
according to Stouffer, Olsen never removed the Property from
the list. (Exhibit “6” at pp. 54-55).
Stouffer did not live at the Property. He occasionally stayed
there overnight when he came back from a road trip. (N.T.
Harry Stouffer from August 19, 2013 Appeal Hearing before the
Building and Fire Code Board of Appeals of the City of
Reading at pp. 65-66, Exhibit “9”).
the five years preceding June 2013, the longest consecutive
period that Stouffer stayed in the Building was three days.
(See Exhibit “1” at p. 48).
June 25, 2013, Stouffer was in the Building when he heard
members of the Reading Police Department yelling outside.
(Exhibit “1” at pp. 62-63).
Stouffer went outside to investigate and observed what turned
out to be a four by nine foot section of bricks on the
sidewalk that had fallen from between the second floor
windows of the Building. (Exhibit “9” at p. 17;
Exhibit “1” at p. 84); (see also photographs
attached to Affidavit of Brian Nicarry (Exhibit
“5” at Exhibit “A”).
Initially, the police would not permit Stouffer to reenter
the Building, but Stouffer explained that he needed to get
some personal items and invited the police to come in with
him. The police followed him in while Stouffer retrieved some
items. Stouffer and the police were in the Building for five
to seven minutes. (Exhibit “1” at pp. 67-69,
police would not let Stouffer back in the building again, and
Stouffer was upset about it. (Exhibit “1” at p.
Stouffer became annoyed and boisterous because he felt he was
being disrespected as a property owner. (Exhibit
“1” at pp. 82-84).
of the City of Reading's Assistant Solicitors, Frederick
T. Lachat, III, Esquire (“Lachat”) arrived on the
scene and handed Stouffer a letter from Nicarry which stated
that inspection revealed that the Building is an
“unsafe structure which represents an immediate
and imminent danger to public safety pursuant to §
403.84 of the Pennsylvania Uniform Construction Code (PA
UCC) and therefore under Section 116 and/or 117 of
the International Existing Building Code (IBEC), as adopted
by the Pa. UCC and Chapter 5 of the City of Reading Codified
Ordinances, immediate emergency demolition is
required.” (Exhibit “1” at pp.
70-74); (see also June 25, 2013 letter from Brian Nicarry to
Harry Stouffer, Exhibit “10”). (emphasis in
Stouffer wrote on the letter “I appeal all that in
[sic] this letter” and handed it back to Assistant
Solicitor Lachat. (Exhibit “1” at pp. 74; see
also Exhibit “10”).
After Nicarry arrived at the scene, Stouffer told Nicarry and
Lachat that he had timber inside and he could shore up the
Building. (Exhibit “1” at p. 81).
Although the collapse happened on a Tuesday night, Stouffer
told Inspector Nicarry that he could have the Building
“shored up” by Sunday. (N.T. Brian Nicarry from
August 19, 2013 Appeal Hearing before the Building and Fire
Code Board of Appeals of the City of Reading at pp. 89-90,
Nicarry would not let Stouffer reenter the Building. (Exhibit
“1” at p. 82).
Instead, Nicarry determined the front portion of the Building
should be partially demolished. (Exhibit “5” at
When Stouffer saw demolition contractors on the roof cutting
holes with a chainsaw, he yelled at the contractor with the
chainsaw to “get the hell off the roof.” (Exhibit
“1” at pp. 89-90).
There were young children and a large crowd around, and
Stouffer testified that he used “bad words.”
(Exhibit “1” at pp. 93-95).
Sergeant with the Reading Police Department warned Stouffer
about his language and yelling at the contractor on the roof
with a chainsaw. (Exhibit “1” at p. 91).
Stouffer continued to yell, use inappropriate language around
children, and his actions distracted the contractor on the
roof with a chainsaw, so Reading Police Officer Danny
Voorhies (“Officer Voorhies”) arrested Stouffer
for disorderly conduct. (See June 25, 2013 Incident Report
for Incident No. 2013-41832 by Officer Danny Voorhies.
Exhibit “11”); (see June 25, 2013 Non-Traffic
Citation for Disorderly Conduct, Exhibit “12”).
Inspector Nicarry did not order, direct or suggest that
Stouffer should be arrested. (Exhibit “5” at
When Stouffer was arrested for disorderly conduct, he was
taken to County lockup where he remained for approximately
two hours. (Exhibit “1” at p.101).
Following his release from County lockup, Stouffer returned
to the Property sometime after 9:00 PM and noticed that the
Building had been partially demolished. (Exhibit
“9” at pp. 64-65).
next day, June 26, 2013, Stouffer and his grandson removed
certain “bare essentials” from the remaining
portion of the Building. (Exhibit “1” at pp.
June 27, 2013, Stouffer again returned to the Property in the
morning to remove items from the Building, but police
officers told him that he could not enter the Building.
(Exhibit “1” at pp. 115-116).
Subsequently, the City of Reading's Director of Codes,
Ronald Natale (“Natale”), appeared and handed
Stouffer a second notice which declared that the remaining
portion of the Building is an “unsafe structure
which presents an immediate and imminent danger to public
safety pursuant to § 403.84 of the
Pennsylvania Uniform Construction Code (PA
UCC)…” This notice further advised that
“DUE TO VARIOUS CLEAR AND PRESENT DANGERS,
INCLUDING THE THREAT OF FALLING DEBRIS OR FURTHER COLLAPSE,
THIS BUILDING IS ORDERED TO BE VACATED AND ENTRY INTO THIS
BUILDING IS STRICTLY PROHIBITED. . .” (See
Exhibit “1” at p. 117-118; see also June 27, 2013
notice attached to Exhibit “5” as Exhibit
Stouffer immediately appealed “everything in” the
June 27, 2013 notice and handed it back to Natale. (Exhibit
“1” at p. 121).
Natale would not let Stouffer go back in the Building, but he
did permit Stouffer to take items from outside the Building.
(Exhibit “1” at pp. 121-123).
When Stouffer returned later in the day on June 27, 2013, he
noticed workmen from O'Brien Wrecking Company were
installing a fence around the Property, and they would not
let Stouffer take any more items from outside the Building.
(Exhibit “1” at pp. 124-125).
Stouffer did not return to the Property for several weeks.
However, a few weeks later he received a call from his friend
who told him that people were taking things from the
Property. (Exhibit “1” at pp. 131-132).
Stouffer called the police and met them at the Property. The
police checked the back door, but they were afraid to enter
the Building because it was falling down. (Exhibit
“1” at pp. 133-134, 137).
Stouffer testified that from the time of the partial
demolition of the Building until the final demolition, he
called the police between four and six times to report that
people were breaking into the Building. (Exhibit
“1” at pp. 141-142).
Stouffer acknowledged that he did “sneak” into
the Building every time he noticed there was no placard on
it. (Exhibit “6” at pp. 95-96).
the first week of June 2013, approximately three weeks before
the partial collapse of the Building, there was a tragic
incident in the City of Philadelphia where a building
collapsed onto the Salvation Army on Market Street and
resulted in several deaths and many injuries. (N.T. Frederick
T. Lachat, III, Esq, on May 5, 2017, at pp. 42-43, Exhibit
a result of the collapse in Philadelphia, Inspector Nicarry
and Assistant Solicitor Lachat had been working on
contingency plans for potential collapses in the City of
Reading. (Exhibit “13” at p. 43).
the evening of June 25, 2013, Inspector Nicarry received a
call from Lieutenant Fire Marshall Larry Moyer to come out to
1237 Buttonwood Street because there had a been a partial
building collapse. ...