Mahalik v. Cantania

          MEMORANDUM OPINION

          Savage, J.

         This § 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.^[1] They contend they did not make the decision to padlock Mahalik's residence.

         Although 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.

         Factual Background

         On the 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.^[2] 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.^[3] They stopped working and called the Borough to report what they had found.^[4]

         Norwood Police Officer Derreck Geisler, Borough Council President Bill Gavin, and defendant Lisa Cantania responded to the scene.^[5] Defendant Shane Kennedy, a code enforcement officer, was not on the scene at any time.^[6] Gamble explained that a section of the road had collapsed while they were digging.^[7] Raw sewage was leaking into the roadway.^[8] Cantania advised that the block had to be shut down for public safety reasons.^[9]A contractor was hired to cover the hole in the street with steel plates and remove the raw sewage.^[10] The police advised Mahalik that the work would be finished in the next couple of days.^[11]

         According to Mahalik, Cantania appeared to be “enraged” because she was late for a dinner date.^[12] Mahalik claims Cantania began cursing and “raving and carrying on.”^[13]He told the police that she was trespassing and he wanted her to leave the property.^[14]

         Borough Manager Francine Howat, Borough Health Inspector Danielle Marie Orner, and Borough Plumbing Inspector Thomas Kennedy were called to the scene.^[15]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.^[16] 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.^[17]

         The 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.^[18] Gamble was still attempting to fix the plumbing problem with a revoked permit.^[19] 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.^[20] Gamble paid for the Miksit family to stay at a hotel.^[21] Mahalik arranged to stay with a friend.^[22]Heverly stood by while Matthew Cleaver from the Borough's service company padlocked the doors.^[23]

         The Borough hired contractor A.J. Jurich, Inc. to restore service to the property and repair the damage to the street.^[24] 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.^[25] 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.^[26]

         The Borough paid $8, 245.00 for these services.^[27] It sent an invoice for the repairs to Gamble, the owner of the property.^[28] 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.^[29] Judgment was entered against Gamble for $9, 826.75, the cost of the repairs plus interest, court costs, and attorneys' fees.^[30]

         Mahalik asserts a claim under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights.^[31] Mahalik contends the defendants were state actors acting under color of law.^[32] Mahalik claims the defendants violated his Fourth Amendment rights by padlocking his residence and seizing his property without a warrant.^[33] He alleges that there were no exigent circumstances to excuse the defendants from obtaining a warrant or for confiscating his “legally obtained plumbing permit.”^[34]

         Standard of Review

         Summary 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).

         The 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 (citation omitted).

         A 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. 1998)).

         Discussion

         It is 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.

         What is 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.

         The 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 ...