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Stouffer v. The City of Reading

United States District Court, E.D. Pennsylvania

December 13, 2017

HARRY STOUFFER
v.
THE CITY OF READING, et al.

          MEMORANDUM OPINION

          SCHMEHL, J.

         Plaintiff 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.

         STANDARD OF REVIEW

         Summary 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.

         In 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.

         INDIFFERENCE OF PLAINTIFF'S COUNSEL

         Incredibly, 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.)

         Accordingly, 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.)

         1. 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 Building”).

         2. 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)).

         3. At 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 “3”).

         4. At 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 “4”).

         5. At 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, Exhibit “5”).

         6. 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).

         7. 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).

         8. In 2000 or 2001, there was a fire at the Building which Stouffer suspects was caused by arson. (Exhibit “6”, at p. 55).

         9. As of June 2013, Stouffer had performed improvements to six rooms in the Building. (Exhibit “6” at p. 56).

         10. The City of Reading Blighted Property Review Committee certified the Building as blighted on November 18, 2010. (Exhibit “7”).

         11. The 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.

         (Notice of Designation of Blighted Property for 1237 Buttonwood Street, Exhibit “8”).

         12. 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).

         13. 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”).

         14. In 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).

         15. On 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).

         16. 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”).

         17. 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, 85-86).

         18. The police would not let Stouffer back in the building again, and Stouffer was upset about it. (Exhibit “1” at p. 71).

         19. Stouffer became annoyed and boisterous because he felt he was being disrespected as a property owner. (Exhibit “1” at pp. 82-84).

         20. One 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 original.)

         21. 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”).

         22. 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).

         23. 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, Exhibit “9”).

         24. Nicarry would not let Stouffer reenter the Building. (Exhibit “1” at p. 82).

         25. Instead, Nicarry determined the front portion of the Building should be partially demolished. (Exhibit “5” at ¶¶ 17-18).

         26. 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).

         27. There were young children and a large crowd around, and Stouffer testified that he used “bad words.” (Exhibit “1” at pp. 93-95).

         28. A 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).

         29. 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”).

         30. Inspector Nicarry did not order, direct or suggest that Stouffer should be arrested. (Exhibit “5” at ¶ 31).

         31. 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).

         32. 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).

         33. The next day, June 26, 2013, Stouffer and his grandson removed certain “bare essentials” from the remaining portion of the Building. (Exhibit “1” at pp. 106-108).

         34. On 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).

         35. 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 “D”).

         36. Stouffer immediately appealed “everything in” the June 27, 2013 notice and handed it back to Natale. (Exhibit “1” at p. 121).

         37. 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).

         38. 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).

         39. 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).

         40. 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).

         41. 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).

         42. 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).

         43. In 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 “13”).

         44. As 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).

         45. On 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. ...


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