Grimm v. Borough of Norristown
| Decision Date | 11 March 2002 |
| Docket Number | No. 01-CV-431.,01-CV-431. |
| Citation | 226 F.Supp.2d 606 |
| Parties | Gary GRIMM and Grimm Brothers Realty Company, Plaintiffs, v. BOROUGH OF NORRISTOWN, Charles R. Sweeney and Thomas M. O'Donnell, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Lloyd George Parry, Davis, Riter, Parry & Hartmann, Philadelphia, PA, for Plaintiffs.
David J. MacMain, Michael J. Butler, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for Defendants.
Plaintiffs Gary Grimm ("Gary Grimm") and Grimm Brothers Realty Company ("Grimm Brothers") have brought this action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants Borough of Norristown ("the Borough"), Charles R. Sweeney ("Sweeney") and Thomas M. O'Donnell ("O'Donnell") violated plaintiffs' rights under the First and Fourteenth Amendments of the United States Constitution.1 They have also brought several pendent state law claims.2 Plaintiffs also have a matter pending in the Court of Common Pleas of Montgomery County, Pennsylvania.
Presently before this Court are Plaintiffs' Motion for Partial Summary Judgment, filed on January 4, 2002, and Defendants' Motion for Summary Judgment, filed on January 4, 2002. Oral argument on these motions was held on February 13 2002. We have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.
The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).
On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed. R.Civ.P. 56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2505.
Where the parties submit cross-motions for summary judgment3, the court must consider the merits of each motion and, for each, view all evidence in the light most favorable to the non-moving party, draw all reasonable inferences in favor of the non-movant and, where the evidence cited contradicts that invoked by the moving party, take the non-moving party's version as true; the standard of review does not change merely because the parties have filed cross-motions for summary judgment. Gavigan v. The Southland Corp., No. Civ.A. 97-2807, 1998 WL 103380, at *1 (E.D.Pa. Feb. 25, 1998). The fact that the parties file cross-motions for summary judgment does not require the court to grant summary judgment for either party; courts will sometimes find that both motions must be denied. See id. On the other hand, where the facts are largely uncontested and the issues are legal ones, the court itself may resolve the issues.
Gary Grimm is the president and sole officer of Grimm Brothers, a company that owns and rents several properties in the Borough.4 Three of Grimm Brothers' properties, located at 857 Cherry Street, 837 Swede Street and 839 Swede Street, are the subject of this suit and the motions before this Court. The properties are located near to one another.
Since 1997 Gary Grimm has been involved with the Norristown Association of Investment Landlords ("NAIL"), first as a member and, for the past four years, as NAIL's Director of Public Relations. In 1994, 1995 and 1997, plaintiffs and other NAIL members filed lawsuits that challenged licensing fees imposed by the Borough. The various lawsuits were settled simultaneously in November of 1999. Gary Grimm is also a member of the Norristown Initiative ("NI"), an organization created by the Montgomery County Commissioners; Gary Grimm served as Chairman of NI's Code Enforcement Committee. In his capacity as a NAIL Director and as an NI Chairman and through the filing of lawsuits against the Borough, Grimm has interacted with Borough officials, including defendants O'Donnell, an Assistant Building Inspector for the Borough of Norristown, and Sweeney, the Borough of Norristown's Fire Marshal.
Beginning in March of 2000, defendants O'Donnell and Sweeney issued condemnation notices and several citations against Gary Grimm and Grimm Brothers because of alleged building code violations on Grimm Brothers' properties. Plaintiffs allege that O'Donnell and Sweeney took these actions in retaliation against Gary Grimm and Grimm Brothers for their participation in NAIL and NI and for their filing of lawsuits against the Borough and Borough officials. The facts pertaining to each of the citations are recounted herein.
On or about March 7, 2000, there was a fire at plaintiffs' 837 Swede Street four-unit apartment house which required the response of the fire department. According to plaintiffs, the fire was confined to the apartment in which the fire started; smoke damage extended to the building's common areas and water from the fire-fighting effort affected the first floor and the basement walls near the electrical panel. According to defendants, the fire was "substantial." On March 7, 2000, Sweeney notified Gary Grimm by letter that "[t]he fire heavily damaged the structural elements of [the] apartment with light to moderate smoke conditions throughout the second and third floor apartments" and that water that was used to extinguish the fire traveled "down through the walls and floors of the structure damaging the main electrical service that provides electricity to the entire building." It stated that "[d]ue to the damages caused by the fire we have deemed the entire building at 837 Swede Street unsafe and unfit for human habitation and have condemned the property." The condemnation was made pursuant to The BOCA National Existing Structures Code ("BOCA Code"), promulgated by the Building Officials and Code Administrators International, Inc.' ("BOCA") and corresponding Borough ordinances.5
On the same day, plaintiffs had Gambino Electric, an electrical contractor certified by the Borough, inspect the property. Gambino Electric concluded that excluding the office space used by Grimm Brothers and the apartment in which the fire had started, the building's electrical system could be safely operated. Gambino Electric gave plaintiffs a written certification of its findings, and plaintiffs provided this certification to the Borough. The Borough did not however rescind the condemnation and the tenants were not allowed to return to their apartments. Plaintiffs then employed the services of Middle Department Inspection Agency, Inc. in another effort to have the condemnation rescinded. Middle Department, Inc.'s March 9, 2000 evaluation was that the electrical wiring met the standards of the National Electric Code and plaintiffs notified defendants of this. The Borough again did not rescind the condemnation.
Sweeney wrote to plaintiffs on March 13, 2000, notifying them of the conditions that would have to be corrected before the condemnation would be lifted. These conditions included: (1) providing a certificate from an electrical underwriter that they electrical system was safe; (2) ensuring that no more than three unrelated persons were not living within one unit; (3) allowing for an inspection to ensure that all damaged doors and windows had been repaired and that all fire extinguishers and smoke detectors were operational; (4) clearing the basement of all combustible and flammable materials and ceasing all warehouse-storage-shop operations in the basement or separating the basement-warehouse-storage-shop area from the first floor offices and rental units with a fire separation and (5) providing a current list of businesses operating out of the first floor, with the name of the responsible party and his/her phone number.
With respect to these conditions, plaintiffs contend that (1) they had already provided a certificate from an electrical underwriter to Sweeney; (2) the number of individuals residing in the apartment in question did not exceed the maximum number allowed by law; (3) the doors, windows, fire extinguishers and smoke detectors were repaired within a week of the fire; (4) the combustibles and flammables were eventually removed even though the code did not require their removal and the fire rated ceiling was not installed because the code did not require such installation; and (5) Gary Grimm advised the Borough that it could contact all...
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