Augustin v. City of Phila.

Citation171 F.Supp.3d 404
Decision Date17 March 2016
Docket NumberCIVIL ACTION NO. 14-CV-4238
Parties Lea Augustin, Gerard Augustin, Thomas McSorley, Donna McSorley Richmond Waterfront Industrial Park, LLC, Plaintiffs v. City of Philadelphia, Defendant.
CourtU.S. District Court — Eastern District of Pennsylvania

Irv Ackelsberg, Edward A. Diver, John J. Grogan, Seth Kreimer, Langer Grogan & Diver PC, Philadelphia, PA, for Plaintiffs.

Jeffrey M. Scott, Archer & Greiner, Philadelphia, PA, John C. Connell, Rebecca Lynne Rakoski, Archer & Greiner, PC, Haddonfield, NJ, for Defendant.

MEMORANDUM AND ORDER

JOYNER

, JUDGE.

This § 1983 action is before the Court now for disposition of the Plaintiffs' Motion for Partial Summary Judgment. For the reasons outlined in the pages which follow, the motion shall be granted.

Factual Background

The plaintiffs here are all property owners and landlords in the City of Philadelphia. Plaintiffs Lea and Gerard Augustin and Thomas and Donna McSorley are residential property owners and landlords, whereas Plaintiff Richmond Waterfront Industrial Park LLC is the owner and lessor of commercial property in the city. By their complaint which was filed in July 2014, Plaintiffs seek to challenge and enjoin the city-owned gas utility, Philadelphia Gas Works (“PGW”), from imposing liens on their properties for unpaid utility bills incurred by Plaintiffs' tenants. Plaintiffs aver that since the first notice which they received of PGW's intent to lien their real estate came shortly before the liens were actually imposed, and in many instances, years after the charges were incurred and the tenants departed, that procedure violates their constitutional rights to procedural due process of law under the Fourteenth Amendment. Although the Complaint is captioned as a “Class Action Complaint,” to date none of the plaintiffs has sought certification of this suit as a class action. Rather, in addition to asking that partial summary judgment be entered declaring that the pre-lien notice afforded to them was constitutionally defective, Plaintiffs also ask the Court to establish a schedule for the filing of a class certification motion and for further proceedings to determine an appropriate remedy.

Standards for Summary Judgment Motions

The principles guiding the determination of motions for summary judgment are clearly articulated in Fed. R. Civ. P. 56, subsection (a)

of which states:

A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

In all cases, the initial burden is on the party seeking summary judgment to point to the evidence which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)

; United States v. Donovan, 661 F.3d 174, 185 (3d Cir.2011).

The court reviewing a motion for summary judgment should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Burton, supra,(citing Scheidemantle v. Sl i ppery Rock University State System of Higher Educ., 470 F.3d 535, 538 (3d Cir.2006)

). The line between reasonable inferences and impermissible speculation is often “thin,” but is nevertheless critical because “an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment.” Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.2014)

(quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382, n. 12 (3d Cir.1990) and Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 474 (3d Cir.1985) ).

Inferences must flow directly from admissible evidence. Id.

Further, an issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In any event, to survive summary judgment, the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the non-movant. Burton, supra,(quoting Jakimas v. Hoffman – LaRoche, Inc., 485 F.3d 770, 777 (3d Cir.2007) ).

Discussion

As noted, it is the gravamen of Plaintiffs' complaint that PGW's method for liening their properties violated their rights to procedural due process. For its defense, the defendant City/PGW asserts that the Due Process Clause does not require a pre-lien notice or pre-lien hearing before the imposition of a lien for unpaid municipal gas service and that the dictates of due process are satisfied by the procedures provided under the Municipal Claim and Tax Lien Law, 53 P.S. § 7101, et. seq .

(“MCTLA”).

Plaintiffs brought this suit pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983

, which states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...

The purpose of Section 1983

is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state. Mosley v. Yaletsko, 275 F.Supp.2d 608, 612 (E.D.Pa.2003). To state a claim for relief in an action brought under § 1983, Plaintiffs must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999).

Thus, the first inquiry in any § 1983

suit is whether the plaintiff has been deprived of a right “secured by the constitution and laws,” and the first question in a due process challenge is whether the plaintiff has been deprived of a protected interest in “property” or “liberty.” Sullivan, 526 U.S. at 59, 119 S.Ct. at 989 ; Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word “liberty,” or it may arise from an expectation or interest created by state laws or policies.

Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393, 162 L.Ed.2d 174, 189 (2005)

(citing Vitek v. Jones, 445 U.S. 480, 493–494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) and Wolff v. McDonnell, 418 U.S. 539, 556–558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ).

Property interests, on the other hand, are defined by existing rules or understandings that stem from an independent source such as state law; they are not created by the Constitution. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985)

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). To have a property interest, a person must have a legitimate claim of entitlement to it; a unilateral expectation will not suffice. Id. The Supreme Court has held that impairments to property rights that liens and attachments effect merit due process protection. Connecticut v. Doehr, 501 U.S. 1, 12, 19, 111 S.Ct. 2105, 2113, 2116, 115 L.Ed.2d 1 (1991).

It is only after finding the deprivation of a protected interest that the Courts consider whether the State's procedures comport with due process. Lujan v. G & G Fire Sprinklers, 532 U.S. 189, 195, 121 S.Ct. 1446, 1450, 149 L.Ed.2d 391, 398 (2001)

. Indeed, it is an essential principle of due process that a deprivation of life, liberty or property be preceded by notice and an opportunity for hearing appropriate to the nature of the case. Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S.Ct. 2633, 2648–2649, 159 L.Ed.2d 578 (2004) ; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). Further, the “root requirement” of the Due Process Clause has been described as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Loudermill, supra, 470 U.S. at 542, 105 S.Ct. at 1493 (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) ). For this reason, notice and an opportunity to be heard must be provided at a meaningful time and in a meaningful manner. Hamdi, 542 U.S. at 602, 124 S.Ct. at 2649 (citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ).

Because the requirements of due process are “flexible and call for such procedural protections as the particular situation demands,” the Supreme Court has declined to establish rigid rules for the resolution of whether the administrative procedures provided are constitutionally sufficient. Wilkinson, 545 U.S. at 225, 125 S.Ct. at 2395

(quoting Morris s ey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). In keeping with that philosophy, in those situations where a state must act quickly or where it would be impractical to provide pre-deprivation process, the Court has held that providing post-deprivation process may be enough to satisfy the requirements of the...

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    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 26 juin 2018
    ...apartments overrun with mold without pre-deprivation hearing did not deny property owner due process); see also Augustin v. Philadelphia, 171 F.Supp.3d 404, 408 (E.D. Pa. 2016) (finding due process violation in defendant's procedures for attaching liens to real property for non-payment of g......
  • Harris v. City of Phila.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 18 mars 2016
  • Augustin v. City of Phila.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 18 juillet 2018
    ...taken the position that it has no jurisdiction to act in matters which arise under the [Lien Law]." Augustin v. City of Philadelphia , 171 F.Supp.3d 404, 414 (E.D. Pa. 2016). The record shows that the utility knew this and took advantage of it by continuing to steer customers in the PUC’s d......
  • Delagol v. Ramsey
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 14 mars 2018
    ...providing post-deprivation process may be enough to satisfy the requirements of the Due Process Clause." Augustin v. City of Philadelphia, 171 F. Supp.3d 404, 408 (E.D. Pa. 2016) (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997); National Amusements, Inc. v. Borough of Palmyra, 716 F.3d 5......

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