United States District Court, E.D. Pennsylvania
§ 1983 action alleging an unconstitutional seizure under
the Fourth Amendment arises out of the Borough of
Norwood's ordering the padlocking and evacuation of the
apartment building where Blaise Mahalik resided while
emergency plumbing repairs were made. The defendants Lisa
Cantania, the Borough's engineer, and Shane Kennedy,
another Borough employee, have moved for summary
judgment. They contend they did not make the
decision to padlock Mahalik's residence.
Mahalik has not filed a formal opposition to the motion, he
submitted two affidavits. These affidavits fail to
substantiate his claims. On the other hand, the defendants
have produced unrebutted evidence that they were not involved
in the decision to enter and padlock the property, locking
Mahalik out for two days. Therefore, we shall grant the
motion for summary judgment.
evening of May 20, 2016, Mahalik and Victor Gamble, the owner
of the property, together with unnamed individuals were
repairing the plumbing main to the property. As they were
doing the work, they discovered a “cavern” ten
feet by five feet wide and four feet deep under the street in
front of the property. They stopped working and called the
Borough to report what they had found.
Police Officer Derreck Geisler, Borough Council President
Bill Gavin, and defendant Lisa Cantania responded to the
scene. Defendant Shane Kennedy, a code
enforcement officer, was not on the scene at any
time. Gamble explained that a section of the
road had collapsed while they were digging. Raw sewage was
leaking into the roadway. Cantania advised that the block had to
be shut down for public safety reasons.A contractor was
hired to cover the hole in the street with steel plates and
remove the raw sewage. The police advised Mahalik that the
work would be finished in the next couple of
to Mahalik, Cantania appeared to be “enraged”
because she was late for a dinner date. Mahalik
claims Cantania began cursing and “raving and carrying
on.”He told the police that she was
trespassing and he wanted her to leave the
Manager Francine Howat, Borough Health Inspector Danielle
Marie Orner, and Borough Plumbing Inspector Thomas Kennedy
were called to the scene.After conducting an emergency
inspection of the property and observing raw sewage flowing
in the street, Thomas Kennedy reported that the property was
disconnected from the sanitary main and lacked a functioning
lateral. Orner and Thomas Kennedy ordered the
property closed and padlocked until the Borough could repair
and restore the running water and sewage system for health
and safety reasons.
following morning, Gavin informed Norwood Police Officer
Brook Heverly that Norwood Borough officials declared the
residence uninhabitable and ordered the tenants to evacuate
until the plumbing was repaired. Gamble was still
attempting to fix the plumbing problem with a revoked
permit. Heverly advised Gamble to cease his work
and to instruct Mahalik and his other tenant, Theresa Miksit,
to gather their personal items and vacate the premises
because the apartments were going to be
padlocked. Gamble paid for the Miksit family to
stay at a hotel. Mahalik arranged to stay with a
friend.Heverly stood by while Matthew Cleaver
from the Borough's service company padlocked the
Borough hired contractor A.J. Jurich, Inc. to restore service
to the property and repair the damage to the
street. Ted Diewal, A.J. Jurich's Project
Manager, reported that whoever made the excavation did so
without shoring it, causing the street to collapse and
allowing raw sewage from the excavation site to flow down the
street. His crew neutralized the sewage, covered
the hole with steel plates, and repaired the sewer lateral
and the street over the course of two days.
Borough paid $8, 245.00 for these services. It sent an
invoice for the repairs to Gamble, the owner of the
property. On November 21, 2016, the Borough filed
a Municipal Lien for Maintenance Charges against Gamble for
the damages caused by his failed attempt to repair the sewer
and street. Judgment was entered against Gamble for
$9, 826.75, the cost of the repairs plus interest, court
costs, and attorneys' fees.
asserts a claim under 42 U.S.C. § 1983 for violation of
his Fourth Amendment rights. Mahalik contends the
defendants were state actors acting under color of
law. Mahalik claims the defendants violated
his Fourth Amendment rights by padlocking his residence and
seizing his property without a warrant. He alleges
that there were no exigent circumstances to excuse the
defendants from obtaining a warrant or for confiscating his
“legally obtained plumbing permit.”
judgment is appropriate “if the movant shows there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that
party's case and who bears the ultimate burden of proof
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In examining the motion, we must draw all
reasonable inferences in the nonmovant's favor.
InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144,
159-60 (3d Cir. 2003).
initial burden of demonstrating that there are no genuine
issues of material fact falls on the moving party.
Fed.R.Civ.P. 56(a). Once the moving party has met its burden,
the nonmoving party must counter with “specific facts
showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citation omitted). The nonmovant
must show more than the “mere existence of a scintilla
of evidence” for elements on which he bears the burden
of production. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). Bare assertions, conclusory allegations
or suspicions are not sufficient to defeat summary judgment.
Fireman's Ins. Co. v. DuFresne, 676 F.2d 965,
969 (3d Cir. 1982). Thus, “[w]here the record taken as
a whole could not lead a rational trier of fact to find for
the non-moving party, there is no ‘genuine issue for
trial.'” Matsushita, 475 U.S. at 587
nonmoving party may defeat summary judgment through the use
of an affidavit or declaration. See Fed. R. Civ. P.
56(c)(1)(A) (a plaintiff may assert that a fact is genuinely
disputed by “citing to particular parts of materials on
the record, including depositions . . . affidavits or
declarations”). However, “‘conclusory,
self-serving affidavits are insufficient to withstand a
motion for summary judgment.'” Kirleis v.
Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161
(3d Cir. 2009) (quoting Blair v. Scott Specialty
Gases, 283 F.3d 595, 608 (3d Cir. 2002)). See
also Lujan v. National Wildlife Fed'n, 497
U.S. 871, 888 (1990) (“The object of [Rule 56] is not
to replace conclusory allegations of the complaint . . . with
conclusory allegations of an affidavit.”). Instead, the
affiant must set forth specific facts that reveal a genuine
issue of material fact. Id. (collecting cases).
Because they are not subject to cross-examination, affidavits
are scrutinized carefully. In re CitX
Corp., 448 F.3d 672, 680 (3d Cir. 2006) (citing 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Fed. Prac. & Proc. Civ. § 2722, at 373, 379 (3d ed.
undisputed that a street had collapsed, raw sewage was
uncontained, the toilets did not work, and the Borough
officials ordered the tenants out of the building and
padlocked it while plumbing repairs were being made.
disputed is who ordered the action constituting the seizure.
Mahalik contends it was the two defendants. They claim it was
not them and instead were other Borough employees. To support
their respective positions, the parties rely on affidavits.
moving defendants made no decisions to shut off water to the
property, padlock it and evacuate it. Those decisions were
made by others. The defendants may have interacted with
Mahalik, but they were not responsible for ...