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Guy v. Borough

United States District Court, E.D. Pennsylvania

June 27, 2018

SHIMON GUY, individually and in his Capacity as Guardian of the Estate of Meny Moore, an Incompetent Person, Plaintiff,
v.
BRISTOL BOROUGH, et al., Defendants.

          MEMORANDUM OPINION

          GOLDBERG, J.

         Plaintiff, 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 II).

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are undisputed, unless otherwise noted.

         Plaintiff, 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.)

         On the 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.[1] (Def.'s SOF ¶¶ 45-46, 48; E. Moore Dep., 41:20-24, 126:5-10; Schneyder Dep., 6:18, 7:12-13, 6:25-7:12.)

         According 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.)

         After 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.)

         When he 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.)

         Plaintiff 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.)

         Mr. 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.)

         The 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.)

         The 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.)

         The 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.)

         Plaintiff 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 accident.
• 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 flu.
• 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 day.
• 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 ...

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