Brunelle v. City of Scranton, CIV NO. 3:15-CV-1480

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
PartiesTHEODORE BRUNELLE, Plaintiff, v. CITY OF SCRANTON, et al., Defendants.
Docket NumberCIV NO. 3:15-CV-1480
Decision Date03 August 2018

CITY OF SCRANTON, et al., Defendants.

CIV NO. 3:15-CV-1480


August 3, 2018

(Judge Mariani)

(Magistrate Judge Carlson)


I. Introduction

The Fourteenth Amendment to the United States Constitution provides, in part, that: "No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. In the context of governmental action which deprives an individual of some legally-recognized property interest, the rudiments of due process are well-established. Typically in this setting where governmental action threatens individual property rights, the individual is entitled to notice and an opportunity to be heard prior to any property deprivation. Thus, due process analysis begins with the notion that persons are typically entitled to a pre-deprivation hearing before their property rights are curtailed. In some instances, however, the exigencies of the moment may not permit a pre-deprivation hearing. In those imminent and exigent circumstances, the

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dictates of procedural due process are also clear: If a pre-deprivation hearing is not feasible, then due process requires that the government afford an individual a full and fair opportunity to contest any property deprivation in a post-deprivation hearing.

The instant case, requires us to consider, and apply, these familiar constitutional principles. The plaintiff, Theodore Brunelle was a licensed contractor whose license was revoked by the City of Scranton's Director of the Department of Licensing, Inspections and Permits, Patrick Hinton. Brunelle has sued Hinton and the City of Scranton, alleging, in part, that his procedural and substantive due process rights were violated in the course of this license revocation, and that the conduct of Hinton constituted a custom or policy of the city, thus making the City of Scranton civilly liable for this conduct.

Brunelle has now moved for partial summary judgment on these procedural due process, substantive due process, and municipal liability claims. (Doc. 26.) While we believe that contested factual matters may preclude judgment as a matter of law on Brunelle's municipal liability and substantive due process claims, we note that the undisputed facts show that Brunelle was never afforded a pre- or post-deprivation hearing relating to the revocation of his contractor license. On these undisputed facts, for the reasons set forth below, we recommend that the court

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grant summary judgment in favor of Brunelle and against Defendant Hinton on this procedural due process claim.

II. Statement of Facts and of the Case

A. Factual Background

In many ways the factual background of this dispute illustrates why timely procedural due process is so important. Procedural due process protections enhance the fairness of governmental actions by ensuring that those actions are fully informed decisions grounded upon a completely developed factual record. Here, it is apparent that the legal collision between these parties stems, in part, from mutual suspicions, suspicions which could perhaps have been addressed and reconciled through an orderly process. Such procedural due process protection is particularly appropriate and apt when the state actors and private parties have utterly irreconcilable perspectives towards one another.

So it is here. From his perspective, the plaintiff, Theodore Brunelle, has alleged that: "I had a very good relationship with everybody in th[e licensing] department, extremely good until my brother sued the City and that is when Pat Hinton and the City attacked me, thinking that I was [my brother Alex Brunelle]." (Doc. 27-1, p. 64.) In contrast, the director of the City of Scranton Department of Licensing, Patrick Hinton, had an entirely different perspective, stating that:

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"dealing with Alex and Ted Brunelle is quite a daunting task. Because there was a constant manipulation game that was being played . . . ." (Doc. 27-7, p.84.)

With the parties' subjective impressions cast in these starkly contrasting terms, the undisputed facts reveal that in 2014 and 2015 Theodore Brunelle worked as a licensed contractor in the City of Scranton. Much of the work done by Theodore Brunelle in Scranton was performed on behalf of his brother, Alex Brunelle, a local property developer. Alex Brunelle, in turn, experienced a contentious relationship with officials in the City of Scranton Department of Licensing, Inspections and Permits, and is currently embroiled in litigation of his own against these city officials.

In 2014, the City of Scranton had in place city ordinances and a reciprocal agreement which governed the licensing of contractors like Theodore Brunelle. (Doc. 1-2.) These procedures provided, in part, for the issuance of licenses to contractors, and also recognized on a reciprocal basis contractor licenses issued by the City of Wilkes-Barre. Pursuant to these procedures, by 2014 Theodore Brunelle had received electrical and mechanical contractor licenses directly from the City of Scranton. Theodore Brunelle also possessed electrical, plumbing and mechanical contractor licenses issued by the City of Wilkes-Barre, licenses which Scranton officials recognized pursuant to their reciprocity agreement with Wilkes-Barre.

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Theodore and Alex Brunelle often worked closely together on joint projects but were not meticulous in identifying and distinguishing their respective roles as contractor and real estate entrepreneur. Thus, the two brothers frequently used the same mailing addresses for their businesses, shared office space at times, and relied upon the same support staff. (Doc. 27-1, passim.) Moreover, when Theodore Brunelle performed contracting work on Alex Brunelle's properties, the two men had a casual approach to the work permitting process, with permit applications frequently submitted under Theodore Brunelle's name, but with Alex Brunelle's business, Dunmore Exclusives, identified as the contractor. (Id.) As the City's dealings with Alex Brunelle became more contentious this lack of attention to detail in the permitting process led city officials to equate the two brothers.1

As a contractor operating in Scranton, Theodore Brunelle's activities were licensed and regulated by the City. The city ordinances governing contractor licensing that were in effect in 2014 and 2015 provided some guidance regarding revocation of contractor licenses, albeit guidance which was incomplete or misunderstood in several material respects. Notably, as Patrick Hinton, the city's

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Director of Licensing, construed the license revocation procedures prescribed by the city ordinance, these procedures called for a hearing if a contractor appealed a revocation decision, but did not clearly allow for a pre-deprivation hearing when the city contemplated the revocation of a contractor's license. This led Hinton to conclude that no pre-deprivation hearing was permitted under the ordinance. (Doc. 27-7 p. 61.)

It is far from clear that Hinton was correct in his interpretation of this ordinance as not allowing for a pre-deprivation hearing. In fact, while the ordinance clearly calls for a hearing when a contractor challenges a license revocation decision, it is both ambiguous and largely silent on when that hearing should take place.2 Therefore, the ordinance could have been construed to also

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allow for a pre-deprivation hearing by an aggrieved person who has received notice of some proposed official action, the path generally favored by the courts as a matter of procedural due process. However, Hinton did not interpret the ordinance in this manner.

The city ordinance also specifically called for graduated penalties for contractors who were found to be in violation of city codes, prescribing a series of license suspensions prior to any license revocation. (Doc. 1-2, p. 14.) Further, while the ordinance described a right to a deprivation hearing before an Appeals Board, followed by judicial review in the Court of Common Pleas, (Doc. 1-2, p.

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14), in fact the Appeals Board described by the city ordinance did not exist in 2014. Therefore, the city could not comply with its own ordinance if a contractor sought to appeal a license revocation since the body designated by city ordinance to hear the appeal did not exist.

In addition, over time certain unwritten practices had developed within the Department of Licensing which further confused the licensing process for contractors. Thus, prior directors of the Department of Licensing had not consistently required full compliance with all written licensing requirements before issuing contractor licenses. Furthermore, in some fields, a practice had arisen in which inspectors could issue contractor licenses on their own initiative, (27-7, pp. 12-13), a practice that was aptly described as "very confusing and mixed up." (Doc. 27-7, p. 12, l. 18-19.)

In January of 2014, Patrick Hinton was appointed to serve as the Director of Licensing, Inspections and Permits for the City of Scranton. ( Doc. 27-7, p. 8.) Prior to accepting this position, Hinton had worked as a drug and alcohol counselor and as a wellness coordinator for the Scranton School District. (Doc. 27-7, p. 7.) Hinton had no previous direct work experience with the Department of Licensing, Inspections and Permits before assuming the position of director of that office.

Owing to this lack of prior experience. Hinton also began his tenure as Director of the Department of Licensing, Inspections and Permits without the

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benefit of a comprehensive institutional background and knowledge regarding the operations of that office. Thus, for more than a year after he assumed these duties Hinton was unaware of material information pertaining to the city's licensing and license revocation procedures. For example, Hinton was unaware of the...

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