Atkins v. Borough of Phoenixville, Michael Bauerly, David Boelker, E. Jean Krack Michael Speck, Phoenixville Police Dep't, William Mossman, Peco Energy Co.

• Decision Date: 27 August 2018
• Docket Number: CIVIL ACTION NO. 16-4503
• Citation: 336 F.Supp.3d 511
• Parties: Craig ATKINS, Andrew Duren and Joel Davenport, Plaintiff, v. BOROUGH OF PHOENIXVILLE, Michael Bauerly, David Boelker, E. Jean Krack Michael Speck, Phoenixville Police Department, William Mossman, Peco Energy Company, Peco Employees John Browns 1-100, Lance Frost, Kyle Place, Patrick Mark and Phoenixville Hose, Hook and Ladder #1, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

336 F.Supp.3d 511

Craig ATKINS, Andrew Duren and Joel Davenport, Plaintiff,

v.BOROUGH OF PHOENIXVILLE, Michael Bauerly, David Boelker, E. Jean Krack Michael Speck, Phoenixville Police Department, William Mossman, Peco Energy Company, Peco Employees John Browns 1-100, Lance Frost, Kyle Place, Patrick Mark and Phoenixville Hose, Hook and Ladder #1, Defendants.

CIVIL ACTION NO. 16-4503

United States District Court, E.D. Pennsylvania.

Signed August 27, 2018

Filed August 28, 2018

Brian Smith, Joseph A. Diorio, Brian J. Smith & Associates PC, Willow Grove, PA, for Plaintiff.

David J. MacMain, The MacMain Law Group LLC, West Chester, PA, Tricia M. Ambrose, MacMain Law Group, Malvern, PA, Joseph L. Turchi, Jared T. Hay, Salmon Ricchezza Singer & Turchi LLP, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

WENDY BEETLESTONE, District Judge.

"The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests." Wolff v. McDonnell , 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). This civil rights case requires determining what "some kind of hearing" looks like when a town deems property uninhabitable. See 42 U.S.C. § 1983. Plaintiffs Craig Atkins, Andrew Duren, and Joel Davenport claim that the Borough of Phoenixville and its officials violated their due process rights in concluding that their building, the Pennsylvania House Hotel, was unfit for human habitability. As the Borough's officials discovered, the Hotel suffered from a litany of fire hazards, ranging from gas leaks to broken fire extinguishers. Plaintiffs allege, however, that the Borough failed to give them adequate pre-deprivation notice in deeming the Hotel unfit for habitability and, in any event, failed to provide a post-deprivation remedy. Plaintiffs further aver that PECO, a private utility company, violated their constitutional rights in a similar way by shutting off the Hotel's utilities. Plaintiffs and Defendants have filed motions for summary judgment. For the reasons that follow, Plaintiffs motion shall be denied, and Defendants' motion shall be granted.

I. LEGAL STANDARD

"[S]ummary judgment is appropriate where there is ‘no genuine dispute of material fact’ and the moving party is ‘entitled to judgment as a matter of law.’ " Alabama v. North Carolina , 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010) (quoting Fed. R. Civ. P. 56(c) ). "A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof." Doe v. Abington Friends Sch. , 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-26, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact." Doe , 480 F.3d at 256 (citing Celotex , 477 U.S. at 322-26, 106 S.Ct. 2548 ). And a court must "view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor." Burton v. Teleflex Inc. , 707 F.3d 417, 425 (3d Cir. 2013).

Counsel for Plaintiffs failed to comply with the procedural requirements in moving for summary judgment and in opposing Defendants' motions for summary judgment. Rule 56(c) requires that a "party asserting that a fact cannot be or is genuinely disputed must support the assertion" by either "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence of presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). All of Plaintiffs' briefing lack citations to the Joint Appendix submitted by the parties. Plaintiffs furthermore did not submit a statement of undisputed material facts for their motion for summary judgment or a statement of disputed material facts for their opposition briefing. Accordingly, insofar as Defendants have substantiated their factual contentions with correct references to the Joint Appendix, those contentions will be considered undisputed. Fed. R. Civ. P. 56(e)(2).

"[I]t is the attorney's job (not the court's) to closely examine the record to determine if sufficient issues of fact exist to warrant a trial." Russell v. City of Phila. , 698 F. App'x 709, 710-11 (3d Cir. 2017) (affirming grant of summary judgment based on plaintiffs' technical deficiencies in their opposition briefing); see also Schoch v. First Fidelity Bancorporation , 912 F.2d 654, 657 (3d Cir. 1990) ("[U]nsupported allegations ... are insufficient to repel summary judgment."). With this in mind, the Court now turns to the undisputed facts of this case.

II. FACTUAL BACKGROUND

From 2003 to 2015, Atkins, Davenport, and Duren owned the Pennsylvania House Hotel in Phoenixville. The Hotel has five levels, including four stories and a basement. The Hotel principally offered units for rent on a weekly basis, and it was usually about 70-80% occupied. During the relevant time period of this dispute, the Hotel was mainly used as a multifamily dwelling.

At some point in November 2014, an unnamed Hotel resident invited David Boelker, Director of Code Enforcement for the Borough of Phoenixville, to examine the premises. The resident expressed some concerns about the Hotel's living conditions, fearing that the property was unsafe for his wife, child, and grandchildren. Along with Michael Baurley, a Building Code Official for the Borough of Phoenixville, Boelker entered the Hotel and took photographs of the premises. The initial inspection was limited to the hallways of the Hotel. Based on what they saw, Boelker concluded that a search warrant was necessary to determine if there were building code violations.

As a result, the Borough applied for an administrative search warrant to examine the Hotel. In the affidavit section, the Borough stated that "[t]he purpose of said warrant is for establishing proper Heating requirements ... as well as other safety issues with regard to egress, sprinkler systems, electrical panels, proper working bathing facilities." The warrant was then signed.

In early December 2014, Baurley, Boelker, other building code officers, Harry Weaver of Barry Isett & Associates, Inc. ("BIA"), and the Phoenixville Fire Department (including its Chief, John Buckwalter) began inspecting the Hotel.¹ Phoenixville police officers were also at the scene. After conducting a walk-through, the Fire Department found that several issues plagued the Hotel's residential spaces. Summarizing its findings in a report, the Fire Department noted that there were multiple active gas leaks on the second floor of the hotel. Sprinkler heads were found covered in the common hallways. There was no posted escape plan. There were no functional fire extinguishers. Of the apartments surveyed, the Fire Department discovered that "the overwhelming majority had missing or nonfunctional smoke detectors." One apartment had "an outlet with what appeared to be burn marks around it from a potential fire incident." During his inspection, Chief Buckwalter observed an open flame in the Hotel. In his view, this presented an "emergency situation" due to the potential of an explosion.

Other areas in the Hotel were similarly hazardous. The basement had no functional exit sign or emergency lighting. Its egress doors were padlocked from the inside. The electrical panels were open and wires were exposed. The smoke detector was inoperable. The Fire Department's report further observed additional fire hazards in the rear office area and ground level commercial space of the Hotel. The office had "multiple devices plugged into a single outlet." Indeed, surge protectors were plugged into other surge protectors, creating an "electrical octopus." The ground level had no working smoke detectors and functional emergency egress lighting. The egress doors were padlocked from the inside. Mattresses were piled against the wall. The sprinkler heads were obscured by construction materials.

Given these myriad problems afflicting the Hotel, it was declared unfit for human habitation on the same day of the inspection. A day afterwards, PECO terminated gas service to the Hotel and removed its electric meters.

BIA would later complete a report that included findings about the Hotel's compliance with local construction codes. According to the BIA report, the Hotel "contained no permanent heating facilities." The "central boilers were observed in a state of disrepair." The BIA report confirmed the Fire Department's account in several respects as well. It too observed the smell "indicative of a natural gas leak" on the second floor. The BIA report also observed "sprinkler heads that have been obstructed." Further, it noted the "disorderly storage of mattresses, televisions, boxes, and other combustible materials." The exit doors on two of the floors were "found boarded, locked, and equipped with signage forbidding [their] use." As for the residential units, a majority of them lacked a "functioning smoke detector, many without a smoke detector entirely." Based on these factual findings and more, the BIA report concluded that the Hotel was uninhabitable and presented unsafe conditions in violation of local building codes.

Plaintiffs then sued the Borough, multiple Borough officials, and PECO as well as its employees under Section 1983. For ease of reference, the Borough, and its officials and police officers will be collectively referred to as the "Borough Defendants." Other Borough officials included in this lawsuit are the former Chief of the Phoenixville Police Department, William Mossman; former Mayor of Phoenixville, Michael Speck; and Borough Manager, Jean Krack. Plaintiffs have...