Bullard v. City of Philadelphia
Bullard v. City of Philadelphia
Opinion of the Court
MEMORANDUM OPINION
This is a civil rights action arising out of the City of Philadelphia’s demolition of Plaintiffs property. Plaintiff alleges that the City failed to provide him with constitutionally adequate notice prior to demolition in violation of his procedural and substantive due process rights under the United States Constitution.. The parties have filed cross-motions for summary judgment. For the reasons that follow, Plaintiffs Motion will be granted in part.
I. Factual Background
When a building located on private property within city limits “is being maintained in a condition which is found to be hazardous, structurally unsound, dangerous or unfit for human habitation and in violation of any law or ordinance,” the City of Philadelphia (the “City”) is authorized to take certain actions to ensure that the “unsafe” or “imminently dangerous” condition created by the structure is eliminated.
The Emergency Service and Abatement Unit (the “Unit”), a subdivision of L & I, is responsible for the City’s demolition and abatement program.
A Unit Inspector who determines that the property is “unsafe” or “imminently dangerous” sends a violation notice on behalf of the City to the record owner of the property.
A property designated as “unsafe” or “imminently dangerous” may be subject to demolition by the City, using either a curbside bid process or a standard procurement process, pursuant to written guidelines contained in the Field Manual.
On July 12, 2010, L & I determined that the property located at 1603 Willington Street in Philadelphia (the “Property”), was “imminently dangerous” in violation of Philadelphia Maintenance Code Section 308.
On July 23, 2010, Inspector Thomas Sweeney visited the Property in response to a call he received through the City’s municipal radio system suggesting that the Property was in violation of the Philadelphia Property Maintenance Code.
THIS POSTER SERVES AS NOTICE TO YOU THAT THE DEPARTMENT OF LICENSES AND INSPECTIONS HAS DETERMINED THAT THIS PREMISES IS IN VIOLATION AND UNSAFE PURSUANT TO PROPERTY MAINTENANCE CODE SECTION PM307.0.
YOU ARE ORDERED TO REPAIR OR DEMOLISH THE PREMISES WITHIN 30 DAYS OF THIS NOTICE. YOU ARE REQUIRED TO OBTAIN ALL NECESSARY PERMITS TO REPAIR OR DEMOLISH THE PREMISES. IF YOU FAIL TO OBEY THIS ORDER, THE STRUCTURE IS SUBJECT TO DEMOLITION BY THE CITY AT ANYTIME AFTER THE EXPIRATION OF THE 30 DAYS FROM THE NOTICE. THE CITY WILL STUCCO THE PARTY WALLS EXPOSED BY THE DEMOLITION IN ACCORDANCE WITH ALL APPLICABLE PROVISIONS OF THE PHILADELPHIA CODE.
YOU WILL BE BILLED FOR ALL COSTS INCURRED AND ADMINISTRATIVE FEES.
FAILURE TO PAY THESE COSTS AND FEES WILL RESULT IN LIENS BEING PLACED AGAINST THE TITLE TO THE PREMISES.36
On July 24, 2010, as a consequence of Sweeney’s July 23, 2010 visit to the Property, the City sent a second violation notice to the late Thompson, who was still the record owner of the Property at the time.
On July 24, 2010, Bullard began repairing the Property. He met with Mulderig and Sweeney on several occasions between July 24, 2010 and August 4, 2010, to discuss how best to proceed with his repairs.
On August 4, 2010 at 8:30 p.m., Bullard received a phone call from Sweeney informing him that the Property would be demolished the following day and that to stop the demolition he would need to secure a “TRO.”
Not wanting to incur the cost of demolition done by the City, Bullard attempted to demolish the Property using his own resources. He was prevented from doing so by Unit officials, who had arrived to facilitate the demolition.
Bullard brings this action pursuant to 42 U.S.C. § 1983, alleging that the City violated his Fourteenth Amendment right to procedural due process (Count I) when it demolished his Property without proper notice and his Fourth Amendment right to substantive due process (Count II) by seizing and demolishing the Property on August 5, 2010. The parties have filed cross-motions for summary judgment, in which both assert that there exist no genuine disputes as to any material facts and that they are entitled to summary judgment in their favor. For the following reasons, the Court will grant Bullard’s Motion in part.
II. Standard of Review
Upon motion of a party, summary judgment is appropriate if “the materials in the record” show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor.
III. Discussion
“Section 1988 is not a source of substantive rights;” rather, it is a procedural vehicle for vindicating rights elsewhere conferred.
A. Constitutional Violation
1. Fourteenth Amendment Procedural Due Process
The Due Process Clause of the Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.”
“Due process does not require that a property owner receive actual notice before the government may take his property.”
The notice provided here did not comport with due process; under the totality of the circumstances, the notice provided to Bullard as the legal owner of the Property at the time of the demolition was insufficient to apprise him of the pendency of the action and afford him an opportunity to object.
The Court begins by noting that Pennsylvania law requires that the notice provided to property owners regarding a nuisance on their property specify the repairs necessary to abate the nuisance and require completion of such repairs “within a reasonable time not less than thirty days from the date of service of the notice.”
There is no evidence that before the day of demolition, the City ever notified Bullard that the Property was “imminently dangerous.” Neither Sweeney nor Mulderig testified that they informed Bullard that the Property had been so designated. Although Bullard had notice that the Property was not in compliance with the Philadelphia Property Maintenance Code, as evidenced from his meetings with Sweeney and Mulderig and his attempt to bring the Property into compliance, there is no evidence that the City notified Bullard that the Property was designated “imminently dangerous,” or that Bullard was apprised of his right to appeal this designation.
Bullard was present when Sweeney visited the Property on July 23, 2010 and posted the blaze orange notice of violation designating the Property as “unsafe.” The posted notice informed Bullard that he had 30 days to demolish or repair the Property, after which time the Property would be subject to demolition. Sweeney was aware that Bullard knew of this notice, yet he never ensured that Bullard received notice that the Property also had been designated as “imminently dangerous” and thus, had ten days to repair or demolish the Property rather than thirty. The Property was demolished less than two weeks after the thirty-day “unsafe” notice was posted. The only notice that the demolition would occur sooner than
While the Court recognizes that “summary administrative action may be justified in emergency situations ... where there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist,”
Moreover, even in the context of an emergency, the Field Manual’s emergency demolition procedures require verification that the owner received notice. The Manual specifically provides: “Check to see if the property has been sold and if there is a new owner. If there is a new owner, notify the new owner and update the case in the database.”
Bullard has established that the City failed to provide him with constitutionally sufficient notice prior to demolishing his Property on August 5, 2010, and the City has failed to justify its failure to so with competent evidence that an emergency in fact existed. Bullard has therefore established a constitutional violation of his due process rights under the Fourteenth Amendment. If this constitutional violation may be attributed to the City, then summary judgment in favor of Bullard and against the City on Count I is warranted.
2. Fourth Amendment Substantive Due Process
The Fourth Amendment, made applicable to the states by the Fourteenth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
It is undisputed that a seizure occurred here.
The City’s seizure of the Property may not rise to the level of a substantive due process violation if the fact-finder concludes that Mulderig reasonably believed that an emergency existed. However, if the fact-finder finds credible Bullard’s testimony that Mulderig told him that the demolition was a “slap in the face,” and concludes therefore that Mulderig’s stated belief was not credible, the City’s seizure would arise to a level of a substantive due process violation. A genuine dispute of material fact prevents the Court from determining the reasonableness of the City’s action as a matter of law at this time. The Court will therefore deny both motions with respect to Count II.
B. Municipal Liability
Having determined that Bullard has established a constitutional violation in Count I, the Court now must determine whether this violation is attributable to the City. Defendant argues that Bullard has failed to establish that the City can be held liable under Monell v. Department of Social Services of New York
Bullard has shown that Scott Mulderig, Chief of the Unit and the City employee with full and final authority to order that a property be demolished, directed that the Property be demolished.
IV. Conclusion
Bullard has established that the City violated his right to procedural due process when City officials authorized the demolition of his Property without first affording him an opportunity to present his objections. The Court will therefore grant Bullard’s motion with respect to the procedural due process claim contained in Count I. However, a genuine dispute of material fact prevents the Court from determining whether the City violated Bullard’s substantive due process rights. Consequently, the cross-motions for summary judgment will be denied with respect to Count II.
An appropriate Order follows.
. The facts are undisputed except where otherwise noted.
. 53 Pa. Stat. § 14611; see also Philadelphia Property Maintenance Code §§ PM-307,0 and 308.0.
. 53 Pa. Stat. § 14611.
. Id.
. Stipulated Statement of Uncontested Material Facts ¶¶ 1-2.
. Stipulated Statement of Uncontested Material Facts ¶ 4.
. Stipulated Statement of Uncontested Material Facts ¶¶ 3, 5.
. Mulderig Dep. 24:5-6, Apr. 29, 2011.
. Stipulated Statement of Uncontested Material Facts ¶ 6.
. Mulderig Dep. 25:10-12.
. Mulderig Dep. 25:19-22.
. Stipulated Statement of Uncontested Material Facts ¶ 6.
. Stipulated Statement of Uncontested Material Facts ¶¶ 8-9.
. Stipulated Statement of Uncontested Material Facts ¶¶ 10-11.
. Emergency Servs. & Abatement Unit Field Manual ("Field Manual”) at 2; Mulderig Dep. 31:11-19; Sweeney Dep. 57:21-58:9, Apr. 25, 2011.
. Mulderig Dep. 57:20-23.
. Stipulated Statement of Uncontested Material Facts ¶¶ 13-14.
. Stipulated Statement of Uncontested Material Facts ¶ 13.
. Id.
. Id.
. Stipulated Statement of Uncontested Material Facts ¶ 15.
. Stipulated Statement of Uncontested Material Facts ¶ 16.
. Stipulated Statement of Uncontested Material Facts ¶ 25.
. Bullard Dep. 6:16-20, Apr. 29, 2011.
. Bullard Dep. 8:5-9:14.
. Bullard Dep. 6:21-23; 9:19-24.
. Bullard Dep. 17:4-19:8.
. Bullard Dep. 20:5-16.
. Stipulated Statement of Uncontested Material Facts ¶ 17.
. Bullard Dep. 32:19-22.
. Bullard Dep. 33:11-15.
. Stipulated Statement of Uncontested Material Facts ¶ 17; Bullard Dep. 46:17-47:20.
. Stipulated Statement of Uncontested Material Facts II 18.
. Stipulated Statement of Uncontested Material Facts ¶ 27.
. Stipulated Statement of Uncontested Material Facts ¶ 21.
. Stipulated Statement of Uncontested Material Facts ¶ 22.
. Notice of Violation at 2.
. Stipulated Statement of Uncontested Material Facts ¶ 23.
. Stipulated Statement of Uncontested Material Facts ¶ 26.
. Stipulated Statement of Uncontested Material Facts ¶ 24.
. Id.
. Id.
. Stipulated Statement of Uncontested Material Facts ¶¶ 28-30.
. Mulderig Dep. 40:14-19 ("Q. Now, you don't dspute that at the meeting with Mr. Bullard you told him to start making repairs immediately and that a permit would catch up, correct? A. That’s absolutely correct. Life safety over paperwork anytime.”).
. Stipulated Statement of Uncontested Material Facts ¶¶ 28-30; Mulderig Dep. 40:7-13.
. Stipulated Statement of Uncontested Material Facts ¶ 31; Bullard Dep. 54:15-18; 56:10-18.
. Bullard Dep. 54:19-55:7.
. Mulderig Dep. 63:17-64:7; 67:5-8.
. Id.
. Bullard Dep. 60:17-61:2.
. Stipulated Statement of Uncontested Material Facts II 36; Bullard Dep. 57:2-21.
. Stipulated Statement of Uncontested Material Facts ¶ 37.
. Stipulated Statement of Uncontested Material Facts ¶¶ 34-35.
. Fed.R.Civ.P. 56(a), (c)(1).
. Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988).
. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
. Walden v. Saint Gobain Corp., 323 F.Supp.2d 637, 641 (E.D.Pa. 2004) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008).
. Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).
. Notale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003).
. U.S. Const, amend. XIV, § 1.
. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
. United States v. James Daniel Good Real Prop., 510 U.S. 43, 49, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).
. Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).
. Id. (quoting Mullane, 339 U.S. at 314, 70 S.Ct. 652) (internal quotation marks omitted).
. B & G Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 662 F.3d 233, 253 (3d Cir. 2011) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
. Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008) (quoting Hodel v. Va. Surface Mining & Reel. Ass’n, 452 U.S. 264, 300, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)).
. Id. at 418 (quoting Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999)).
. Sending notice to the record owner of a property is constitutionally sufficient where such notice was reasonably calculated to reach the intended recipient, in the absence of return receipt indicating that anything had gone awry. Jones, 547 U.S. at 226-27, 126 S.Ct. 1708. Here, while the July 12 and 24 notices sent to Thompson may have been constitutionally sufficient as to Thompson, Thompson was not the record owner of the Property at the time of the demolition; Bullard was. The City had knowledge of this fact, yet failed to send written notice of the “imminently dangerous” designation to Bullard before the day of demolition.
. 53 Pa. Stat. § 14611 (emphasis added).
. Elsmere Park, 542 F.3d at 418 (quoting Hodel, 452 U.S. at 300, 101 S.Ct. 2352 and Catanzaro, 188 F.3d at 63).
. Field Manual at 6.
. U.S. Const, amend. IV.
. Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001) (quoting Collins v. Harker Heights, 503
. Soldal v. Cook County, 506 U.S. 56, 71, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).
. See id. at 68, 113 S.Ct. 538; Def.’s Resp. to Pl.’s Mot. Summ. J. at 18.
. Bullard Dep. 60:17-61:2.
. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. Id. at 690, 98 S.Ct. 2018.
. Startzell v. City of Phila., 533 F.3d 183, 204 (3d Cir. 2008).
. Monell v. Dept, of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. Watson v. Abington Twp., 478 F.3d 144, 155-56 (2007).
. Id. at 156.
. Mulderig Dep. 57:20-23; 60:16-19; 63:17-24.
. Gordon v. City of Phila., No. 07-5039, 2009 WL 2710247, at *5 (E.D.Pa. Aug. 28, 2009) (Tucker, J.) ("The City's demolition decision and its execution were made in accordance with apparent City 'custom' or ‘policy,’ allowing the City to make a decision to demolish, and then within hours to solicit bids from contractors for demolition, and have the contractor demolish the property within three hours of acceptance of the bid. This 'custom' is in direct contravention to the written policies and procedures in the Philadelphia Administrative Code, outlining the steps and time frames the City must abide by when it decides to demolish a citizens property.”).
Reference
- Full Case Name
- Shawn BULLARD v. CITY OF PHILADELPHIA
- Cited By
- 4 cases
- Status
- Published