United States District Court, E.D. Pennsylvania
SHIMON GUY, individually and in his Capacity as Guardian of the Estate of Meny Moore, an Incompetent Person, Plaintiff,
BRISTOL BOROUGH, et al., Defendants.
individually and on behalf of the Estate of Meny Moore,
brings this action against Defendant Bristol Borough
(“the Borough”), alleging that the Borough was
negligent in failing to inform him of any dangerous
conditions on property he owned before demolishing a building
on the property (Count I). Plaintiff also alleges that the
Borough's failure to notify him of the demolition before
it occurred constitutes a deprivation of due process (Count
Borough has moved for summary judgment. I will grant the
Borough's Motion as to Count I because the Borough is
entitled to immunity under the Pennsylvania Political
Subdivision Tort Claims Act. Because genuine issues of
material fact exist as to the due process claim, I will deny
the Borough's Motion as to that count.
FACTUAL AND PROCEDURAL BACKGROUND
following facts are undisputed, unless otherwise noted.
Shimon Guy, and Meny Moore purchased a property at 301-303
Radcliffe Street (“the Property”) in Bristol
Borough as tenants in common on October 28, 2013. This
property contained a building, which had suffered extensive
fire damage on October 1, 2010. On December 6, 2013, Mr.
Moore applied to the Borough's Historical Architectural
Review Board (“HARB”) for a permit to make
certain alterations to the building located on the Property.
On May 12, 2014, the HARB issued Mr. Moore a
“Certificate of Appropriateness” to
“[a]lter the structure(s) on the premises (construct
third story mansard roof with open windows and no siding at
this time).” On May 27, 2014 the Borough issued a
permit to Mr. Moore to frame the fire-damaged third floor of
the building and install a mansard roof, as recommended by
the HARB. (Def.'s SOF ¶¶ 9, 5, 27, 31-32; Ex.
F; Ex. C; Ex. D; Ex. K; Ex. M; Ex. N.)
morning of November 5, 2014, Mr. Moore was standing on the
top of a bay window of the exterior wall of the building
without any harness, guardrail, or other fall-protection
system. While Mr. Moore was cutting floor joists on the third
floor, the bay window and surrounding brick became dislodged
from the wall of the building and fell to the ground, as did
Mr. Moore, who tragically suffered a traumatic brain
injury. (Def.'s SOF ¶¶ 45-46, 48; E.
Moore Dep., 41:20-24, 126:5-10; Schneyder Dep., 6:18,
to the Borough, neither side of the building was braced on
the day of the accident, and the floor joists on the second
floor were broken and sagging down from the second floor.
(Def.'s SOF ¶¶ 52-53; Brown Dep. 38:7,
42:12-19; Schneyder Dep. 9:5.) Plaintiff states that Mr.
Moore and Edward Moore had braced the building by removing
and replacing TJI joists. He further states that he is
without knowledge sufficient to respond to the Borough's
allegation that the floor joists on the second floor were
broken and sagging down from the second floor. Plaintiff
asserts that this is because David Brown, the structural
engineer who evaluated the building for the Borough and whose
testimony the Borough relies upon, never entered the building
on the day of the accident to observe its condition.
(Pl.'s SOF ¶¶ 52-53; E. Moore Dep. at 45; Brown
Dep. at 24.)
learning about the accident, the Borough Manager, James
Dillon, arrived at the Property sometime around 9:30 a.m.,
apparently before the paramedics had arrived. In viewing the
accident scene, Mr. Dillon believed Mr. Moore to be the sole
owner of the building and believed he was “lying dead
on the sidewalk.” Mr. Dillon initially asked the
Borough Engineer to come to the site to review the condition
of the building, however, the Borough Engineer did not have a
structural engineer on staff and recommended that the Borough
contact Cooke Brown, LLC. (Def.'s SOF ¶¶ 54-57;
Dillon Dep. 49:21, 59:12-18, 50:13-14, 50:18-51:9.) The
Borough alleges that structural engineer David Brown of Cooke
Brown, LLC came to the scene sometime around 1:00 p.m.
(Def.'s SOF ¶ 59; Dillon Dep. 51:7-9), however,
Plaintiff points out that in his deposition, Mr. Brown could
not remember if he arrived in the morning or early afternoon.
(Pl.'s SOF ¶ 19; Brown Dep. at 22.)
arrived at the site, Mr. Brown was asked by Mr. Dillon to
evaluate the structural condition of the building. Mr. Brown
testified that when he first arrived, he observed the
“partially collapsed building” and that the
collapse originated at the top of the building where joists
were being removed. He then conducted an inspection of the
exterior walls of the building. Mr. Brown issued a letter
dated November 6, 2014 to the Borough wherein he memorialized
his observations and “recommended to the borough
officials present that temporary protection be installed to
protect the adjacent property, and for the building to be
demolished.” Mr. Brown testified at his deposition that
he was concerned with the stability of the building because
of “the walls being unbraced and the lack of a
functional floor diaphragms for a two-story high wall.”
He further testified that “the condition of the second
floor . . . play[ed] a significant role in [his]
determination that the building was unsafe. And that may have
been . . . the floor joists were literally broken in the
middle of them and sagging down at the second floor, [and]
seeing that played a significant role in [his] judgment for
determining that this building was unsafe and that those
walls were unstable.” Mr. Brown also testified that it
would have been dangerous to try to brace the wall at that
time because it would put workers in danger by placing them
near the building. Mr. Brown did not physically enter the
building during his inspection because in his opinion it was
“unsafe to enter the building at that time, ” but
he was able to look into the first floor of the internal
structure. (Def.'s SOF ¶¶ 59-61, 68-69, 62-63,
65-67; Dillon Dep. 51:10-17; Brown Dep. 22:19-23:24,
108:19-24, 41:22-42:1, 42:12-19, 47:8-12, 24:2-7; Ex. V.)
contests many of the observations made by Mr. Brown, pointing
out that Mr. Brown never entered the building and did not
perform any tests to determine the condition of the building.
(Pl.'s SOF ¶¶ 60-66; Brown Dep. at 24, 67-68.)
Dillon also asked Paul Buchhofer, President of Building
Inspection Underwriters, Inc., to assess the building
following the accident. (Def.'s SOF ¶ 70; Ex. W.)
The Borough contends this request came immediately following
the accident (Def.'s SOF ¶ 70), however, Plaintiff
responds that Mr. Buchhofer assessed the building on the date
of the accident “at some point” after Mr. Dillon
had gone home with the flu. (Pl.'s SOF ¶ 70; Dillon
Dep. at 52.) Ultimately, in an email dated November 5, 2014,
Mr. Buchhofer recommended that the building be demolished.
(Def.'s SOF ¶ 71; Ex. W.)
Borough asserts that based upon the recommendations of Mr.
Brown and Mr. Buchhofer, the building was demolished on the
date of the accident. (Def.'s SOF ¶ 72; Dillon Dep.
56:20-57:1.) Plaintiff responds that although Mr. Dillon
testified that he relied upon the recommendations or Mr.
Brown and Mr. Buchhofer in deciding to demolish the building,
he was unaware of Mr. Brown and Mr. Buchhofer's
conclusions until, at earliest, the day after the demolition.
Plaintiff points out that Mr. Dillon had gone home with the
flu, and Mr. Brown's report was dated the day after the
demolition and Mr. Dillon had not heard Mr. Buchhofer's
conclusions until the date of his deposition. (Pl.'s SOF
¶ 72; Dillon Dep. at 34-35, 53-57.)
building was demolished by R&S Contractors, Inc. While in
the hospital with Mr. Moore, Edward Moore was notified by a
man who lived near the Property that the Borough was
demolishing the building that night. Plaintiff went to view
the Property on November 7, 2014. On November 11, 2014, Mr.
Dillon learned of Plaintiff's partial ownership of the
Property and emailed Plaintiff that, “on November 5,
2014, [the Borough] had to take immediate steps to secure the
safety of the area by proceeding with demolition of the
remainder of the building.” (Def.'s SOF
¶¶ 76-79; Ex. Y; E. Moore Dep., 121:13-22; Guy Dep.
42:17-23; Dillon Dep. 69:3-19.)
Borough subsequently filed a municipal claim against
Plaintiff for the demolition costs pursuant to Section 109.5
of the 2003 International Property Maintenance Code
(“IPMC”), which the Borough had adopted.
Plaintiff paid this citation, and then on October 1, 2015,
along with Mr. Moore, sold the Property for $104, 395.10.
(Def.'s SOF ¶¶ 81-84; Ex. X; Ex. AA; Ex. CC;
Compl. ¶ 27; Answer ¶ 27.)
provides the following additional pertinent facts that he
contends preclude summary judgment:
• Section 109.2 of the IPMC states that “whenever,
in the opinion of the code official, there is imminent danger
due to an unsafe condition, the code official shall order the
necessary work to be done, including the boarding up of the
openings, to render such structure temporarily safe whether
or not the legal procedure herein described has been
instituted, and shall cause such other action to be taken as
the code official deems necessary to meet such
emergency.” - Mr. Dillon is not sure whether he
violated Section 109.2 of the IPMC on the date of the
• Mr. Dillon visited and left the accident scene
multiple times from morning until early afternoon when he
went home sick with the flu.
• Mr. Dillon spoke with Mr. Brown and requested an
evaluation when Mr. Brown arrived on the scene, and then
shortly thereafter went home because he was sick with the
• After Mr. Dillon had gone home, John Miller, the
Borough Inspector, apparently called Mr. Buchhofer and asked
him to come to the scene. Mr. Miller was on vacation that
• Mr. Buchhofer sent an email to Mr. Miller at 6:17 p.m.
on the date of the incident recommending demolition. Mr.
Miller was on vacation that day and Mr. Dillon was not copied
on the email.
• Neither Mr. Dillon nor Mr. Miller was on the scene at
the time Mr. Buchhofer was present.
• Mr. Dillon did not see Mr. Buchhofer's email until
the date of his deposition on January 11, 2017.
• At his deposition, Mr. Dillon could not recall ever
learning of Mr. Buchhofer's conclusions either ...