Cannarozzo v. Borough of W. Hazleton

• Citation: 575 F.Supp.3d 510
• Decision Date: 13 December 2021
• Docket Number: CIVIL ACTION NO. 3:18-CV-267
• Parties: George CANNAROZZO, Plaintiff, v. BOROUGH OF WEST HAZLETON and Diane Panzarella, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

575 F.Supp.3d 510

George CANNAROZZO, Plaintiff,

v.BOROUGH OF WEST HAZLETON and Diane Panzarella, Defendants.

CIVIL ACTION NO. 3:18-CV-267

United States District Court, M.D. Pennsylvania.

Filed December 13, 2021

Edwin Lewis Stock, Rick Stock Law, Reading, PA, for Plaintiff.

Edmund Charles Celiesius, Tracy A. Walsh, Weber Gallagher Simpson Stapleton Fires & Newby, LLP, Philadelphia, PA, for Defendants Borough of West Hazelton, Diane Panzarella.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION

Presently before the Court is the Motion for Summary Judgment of Defendants, Borough of West Hazleton and Diane Panzarella (Doc. 68). With this motion, Defendants seek summary judgment in their favor on Plaintiff's Fourth Amendment claims based upon individual and municipal liability. (Id. )

These claims arise from events which occurred on February 6, 2016, at a five-unit apartment building owned by Plaintiff in the Borough of West Hazleton ("Borough"). (Doc. 69 ¶¶ 26, 37.) On that date, the West Hazleton Fire Department responded to a report of a fire at the property. (Id. ¶ 37.) The Fire Department cleared the scene within ten minutes but received a second call to the property approximate twelve minutes later. (Id. ¶¶ 37, 41, 42.) Subsequently the Borough's code enforcement officer, Diane Panzarella, was called to the scene. (Id. ¶ 52.) Eventually, Fire Department crew members and Defendant Panzarella accessed the basement of the apartment unit, and, thereafter, Defendant Panzarella called Carl Faust, an independent building inspector who does work for the Borough, to the scene. (Id. ¶ 23, 55, 62.) Plaintiff did not consent to a code inspection of the basement and no warrant was obtained. (Doc. 1 ¶¶ 31, 34, 35, 48.) The property was condemned by the Borough as a result of the search. (Id. ¶ 37.)

For the reasons discussed below, the Court will grant Defendants’ motion.

II. STATEMENT OF UNDISPUTED FACTS ¹

During the relevant time period, Defendant Diane Panzarella was the Borough Code Enforcement Officer and Building Code Official, Shawn Evans was the Fire Chief at West Hazleton Fire Department, and Robert Segaria was the Deputy Chief. (Doc. 69 ¶¶ 6, 20, 21; Doc. 73-1 ¶¶ 6, 20, 21.) Carl Faust ("Mr. Faust") is a building inspector who did work for the Borough, including commercial building inspections. (Doc. 69 ¶¶ 23, 24; Doc. ¶¶ 23, 24.)

Defendant Panzarella was hired by Defendant Borough as the Code Enforcement Officer and Building Code Official in September 2014. (Doc. 69 ¶ 6; Doc. 73-1 ¶ 6.) Before that Defendant Panzarella had several years’ work experience in the City of Hazleton as a Building Code Official, Licensing, Permitting and Code Enforcement.² (Doc. 69 ¶ 7; Doc. 69-1 Ex. 3, Panzarella Resume.) Since 2013, Defendant Panzarella has been certified by the Commonwealth of Pennsylvania, Department of Labor and Industry, for Building Code Official and Uniform Construction Code.³ (Doc. 69 ¶ 8.) She also completed numerous training and certification programs from 2000 through 2016.⁴ (Doc. 69 ¶¶ 9-14.)

As of February 2016, Deputy Chief Segaria had 40 years of experience and training in the field of firefighting, including but not limited to cause and origin and electrical fires. (Doc. 69 ¶ 22; Doc. 73-1 ¶ 22.)

The International Fire Code ("IFC"), adopted and in use in the Commonwealth of Pennsylvania at the relevant time, provides in part at Section 104.11: " ‘Authority at fires and other emergencies. The fire chief or officer of the fire department in charge at the scene of a fire or other emergency involving the protection of life or property or any thereof, shall have the authority to direct such operation as necessary to extinguish or control any fire, perform any rescue operation, investigate the existence of suspected or reported fires, gas leaks or other hazardous conditions or situations, or take any other action necessary in the reasonable performance of duty.’ "⁵ (Doc. 69 ¶ 19 (quoting IFC Section 104.11 (Defs.’ Ex. 11 (Doc. 69-1 at 65-66)); Doc. 73-1 ¶ 19.)

During the relevant time, Plaintiff owned, maintained and operated property located at 10-12 East Oak Street in the Borough of West Hazleton ("the Property"), which is a five-unit apartment building. (Doc. 69 ¶ 26; Doc. 73-1 ¶ 26.) The circuit breaker for the entire apartment building was located in the basement of the building. (Doc. 69 ¶ 35; Doc. 73-1 ¶ 35.) The door to the basement was located outside at the back of the building. (Id. ) The Plaintiff kept the basement door locked, and the tenants did not have access to the circuit breakers in the basement. (Doc. 69 ¶ 36; Doc. 73-1 ¶ 36.)

Prior to the February 2016 incident at issue here, Defendant Panzarella had contact with the property and had found code violations in a second-floor apartment. (Doc. 69 ¶¶ 27, 28; Doc. 73-1 ¶¶ 27, 28.) The apartment was eventually condemned. (Doc. 69 ¶ 29; Doc. 73-1 ¶ 9.)

On Saturday, February 6, 2016, at approximately 11:06 a.m., the West Hazleton Fire Department was dispatched to the Property in response to a reported commercial fire alarm.⁶ (Doc. 69 ¶ 37; Doc. 73-1 ¶ 37; Doc. 69-1 at 124 (Defs.’ Ex. 18).) Upon the fire officials’ arrival, they noted a light smoke haze in all or portions of the first floor including the kitchen area of Apartment # 2.⁷ (Doc. 69 ¶ 38; Doc. 73-1 ¶ 38; Doc. 69-1 at 124 (Defs.’ Ex. 18).) They also observed a pan on the stove with grease in it, the stove was turned off, and there were no flames.⁸ (Doc. 69 ¶ 39; Doc. 73-1 ¶ 39; Doc. 69-1 at 124 (Defs.’ Ex. 18).)

The West Hazleton Fire Department cleared the scene in response to the first fire alarm at approximately 11:12 am. (Doc. 69 ¶ 41; Doc. 73-1 ¶ 41.) The West Hazleton Fire Department was dispatched by Luzerne County 911 to a second fire alarm at the Property at 11:24 am, which was approximately 12 minutes after it left the scene in response to the first report. (Doc. 69 ¶ 42; Doc. 73-1 ¶ 42.) Deputy Chief Segaria and Chief Shawn Evans with the Fire Department crew responded to the second alarm at the Property. (Doc. 69 ¶ 43; Doc. 73-1 ¶ 43.) The West Hazleton Fire Department arrived on the scene at approximately 11:27 am. (Doc. 69 ¶ 44; Doc. 73-1 ¶ 44.) Upon arrival, the Fire Department crew found the first-floor apartment on the 12 East Oak Street side filled with heavy smoke.⁹ (Doc. 69 ¶ 45; Doc. 73-1 ¶ 45.) Outside the back door of the building, the engine crew discovered burnt papers with heavy black charring. (Doc. 69 ¶ 46; Doc. 73-1 ¶ 46.) Sparks were noted coming from the stove in the first-floor apartment, and, at some point after the fire crew's arrival, the stove was unplugged and removed to the outside.¹⁰ (Doc. 73-1 ¶ 48; Doc. 69-1 at 128 (Defs.’ Ex. 19).)

Defendant Panzarella was called to the scene after the crew's arrival at the Property for the second time, and she arrived within fifteen minutes of being called.¹¹ (Doc. 69 ¶¶ 51, 52; Doc. 73-1 ¶¶ 51, 52.) The West Hazleton Fire Department was at the scene and in control of the Property when Defendant Panzarella arrived. (Doc. 69 ¶ 53; Doc. 73-1 ¶ 53.)

The Fire Department accessed the basement, and Deputy Chief Segaria and the ladder crew entered the basement. (Doc. 69 ¶ 55; Doc. 73-1 ¶ 55.) Defendant Panzarella testified that when Deputy Chief Segaria came up from the basement "he basically said, you've got to get down there."¹² (Doc. 69 ¶ 57; Doc. 73-1 ¶ 57; Panz. Dep. 54:20-25 (Doc. 69-1 at 27).) The fire department was in control of the Property and was conducting an investigation in the basement when Defendant Panzarella was instructed to enter the basement.¹³ (Doc. 69 ¶ 58.) Defendant Panzarella entered the basement at the instruction of Deputy Chief Segaria with the ladder crew, which was within 30-40 minutes of her arrival at the property, and at the same time the fire crew was in the basement.¹⁴ (Doc. 69 ¶¶ 59, 60.) Multiple fire hazards were clearly evident in the basement upon visual inspection.¹⁵ (Doc. 69 ¶ 61.)

Subsequently, Mr. Faust was contacted by Defendant Panzarella, and he arrived at the Property within forty-five minutes. (Doc. 69 ¶¶ 62, 64; Doc. 73-1 ¶¶ 62, 64.) When she contacted Faust, Defendant Panzarella had determined that there was an imminent danger to life or property.¹⁶ (Doc. 69 ¶ 63.) The fire department had control of the property when Mr. Faust arrived.¹⁷ (Doc. 69 ¶ 65; Doc. 73-1 ¶ 65.)

Deputy Chief Segaria, Defendant Panzarella, and Faust were in the basement together when Segaria pointed out immediate fire hazards to Panzarella and Faust.¹⁸ (Doc. 69 ¶ 67.) Conditions in the basement included electrical wires "dangling" and "hanging" over water lines, splices in wires were coming out of electrical panels "like spaghetti," wires were exposed, there was no coating on wires, and wires were frayed and corroded.¹⁹ (Doc. 69 ¶¶ 69-73.) Segaria, Panzarella, and Faust believed the conditions present in the basement presented a situation of imminent danger.²⁰ (Doc. 69 ¶ 74.)

The Fire Department did not leave the Property until after 1:00 p.m. (Doc. 69 ¶ 76; Doc. 73-1 ¶ 76.) Plaintiff refused to go to the Property on February 6, 2016. (Doc. 69 ¶ 77; Doc. 73-1 ¶ 77.) The Property was condemned. (Doc. 69 ¶ 78; Doc. 73-1 ¶ 78.)

III. STANDARD OF REVIEW

Summary judgment "is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Gonzalez v. AMR , 549 F.3d 219, 223 (3d Cir. 2008). "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) ). Thus, through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material...