Tulio v. Borough
| Decision Date | 09 March 2023 |
| Docket Number | Civil Action 22-2423 |
| Parties | VINCENT J. TULIO v. LANSDALE BOROUGH |
| Court | U.S. District Court — Eastern District of Pennsylvania |
After plaintiff Vincent Tulio refused to pay delinquent bills for water, sewer and electricity services to his commercial property, defendant Lansdale Borough disconnected the utility services and filed liens against the property. Tulio complains that he has been unable to obtain a use and occupancy permit to rent the property without utilities. He filed this action, claiming that he was denied due process in violation of the Fourteenth Amendment and his property was effectively taken in violation of the Takings Clause of the Fifth Amendment.[1]
The Borough filed a motion to dismiss the complaint. After Tulio responded, we converted the motion to one for summary judgment. The parties filed cross-motions for summary judgment, supplementing the record with exhibits deposition transcripts and declarations.
The undisputed evidence shows that Tulio did not pay his utility bills. As a result, the Borough disconnected the utilities and filed liens against the property. Tulio then initiated a challenge to the liens under the Municipal Claims and Tax Liens Act (“MCTLA”), 53 Pa. Con. Stat. § 7101, et. seq., in state court, but he has not pursued the process. Because the process provided by the MCTLA that Tulio invoked and is ongoing satisfies due process requirements, there is no Fourteenth Amendment violation. Nor do the facts establish a regulatory taking of his property constituting a Fifth Amendment violation. Therefore, the Borough is entitled to judgment in its favor.
Tulio's battle with the Borough over charges for water, sewer and electricity service supplied by the Borough[2] began fourteen years ago.[3] Rather than paying what he insisted was due, he paid nothing.[4] After he stopped paying his water, sewer and electric bills, the Borough filed liens against his property in Montgomery County pursuant to the MCTLA.[5]On October 7, 2008, it filed a lien for unpaid sewer bills.[6] On April 8, 2011, October 23, 2012, April 23, 2013, and January 15, 2015, it filed additional liens for unpaid sewer bills.[7]It also filed seven liens for unpaid electric bills.[8]
Starting on March 22, 2011, the Borough disconnected electric service to individual units, leaving the one used by Tulio himself with electric service.[9] The Borough continues to bill Tulio monthly minimum electric service fees as prescribed by the Borough Code.[10]On December 20, 2011, the Borough disconnected water service.[11] In February 2015, it denied Tulio a use and occupancy permit because there were outstanding utility bills on the property.[12]
To challenge the liens, Tulio initiated the procedure provided under the MCTLA. On February 16, 2021, ten years after water service had been disconnected and twelve years after the first lien was recorded, he filed notices to issue writs of scire facias in the Montgomery County Court of Common Pleas.[13] After the Borough filed timely responses, he filed affidavits of defense.[14] On April 5, 2022, Tulio's counsel emailed the Montgomery County Court of Common Pleas requesting that the court list only lien Docket No. 201110010 as ready for trial.[15] On May 26, 2022, the Borough withdrew that lien.[16] After the Borough withdrew the lien, Tulio applied for electricity service to that unit.[17] The Borough denied his application because an amended lien had been filed.[18] Although he had filed affidavits of defense for all liens, he did not move for trial on the remaining liens.[19] Nor has he moved since.
In the meantime, due to the delinquent utility bills, Tulio has been unable to obtain a use and occupancy permit, preventing him from renting the property.[20] He claims he lost over a million dollars in rental income.[21]
Tulio and the Borough were also engaged in an unrelated land use dispute. The Borough issued summary citations for failure to complete improvements to use the building as a storage facility.[22] The summary citations had nothing to do with utility services.[23] The parties entered into a Settlement Agreement on December 18, 2013 to resolve disputes related to Tulio's use and development of his building.[24] In his breach of contract claim, Tulio argues that the Borough waived and released all claims and debts, including utility debts in that agreement.[25]
Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering the motion, we must draw all reasonable inferences in the nonmovant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003) (citation omitted). Disagreements over what inferences may be drawn from the facts, even undisputed ones, preclude summary judgment. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996) (citation omitted). Credibility determinations, the drawing of legitimate inferences from facts and the weighing of evidence are matters left to the jury. In re Asbestos Prod. Liab. Litig. (No. VI), 822 F.3d 125, 135 (3d Cir. 2016) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).
Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Gillispie v. RegionalCare Hosp. Partners Inc, 892 F.3d 585, 592 (3d Cir. 2018) (citation and internal quotation omitted).
The material facts are not in dispute. Tulio has not paid his utility bills. Because he refuses to pay the bills, utility services have been turned off and he cannot obtain a use and occupancy permit.[26] He and his attorneys engaged in multiple attempts to have the Borough adjust the bills. He concedes that he did not complete the process for challenging the liens in the state court-a process he initiated and acknowledges remains available under the MCTLA.[27]
Tulio claims that the Borough deprived him of his property without affording him due process. He does not deny that his challenges to the liens under the MCTLA are pending.[28] He contends the Borough thwarted the process by withdrawing and amending the one lien that he had moved to trial, preventing a judicial resolution.[29]
To determine whether an individual has received due process, we “examine[] the procedural safeguards built into the statutory...procedure...effecting the deprivation, and any remedies for erroneous deprivations provided by statute.” In re Energy Future Holdings Corp., 949 F.3d 806, 822 (3d Cir. 2020) (citing Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 138 (3d Cir. 2010). We ask whether the government has met the “core of due process”- “an opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Ordinarily, the state must provide a hearing or other opportunity to be heard before depriving a person of his property. Montanez v. Sec'y Pa. Dep't of Corr., 773 F.3d 472, 483 (3d Cir. 2014) (quoting Zinermon v. Burch, 494 U.S. 113, 132 (1990)). For example, pre-deprivation process must be afforded to residential customers facing termination of services for unpaid utility bills. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 22 (1978). Notice must provide the residential customer with the availability of an administrative procedure to consider the customer's complaint of erroneous billing, and the opportunity to present the complaint to a designated employee empowered to review disputed bills and rectify errors. Id. An informal administrative process may be enough to constitute due process. Id.
The Borough provides pre-deprivation process before disconnecting utility services to residential customers.[30] Although Tulio was a commercial,[31] not a residential customer, the Borough afforded him an administrative process before it terminated his utility service. He and his attorney engaged in many conversations, through written and in-person correspondence, over 12 years to resolve the sewer billing.[32] He had so many meetings, Tulio could not count them all.[33] The Borough ultimately reduced the number of billable units and credited Tulio's account.[34] Still dissatisfied, Tulio stopped paying not only for water and sewer service,[35] but also for electric service.[36] He knew the Borough could shut off service for non-payment.[37] The Borough staff warned him repeatedly that his service would be terminated unless he paid the outstanding balances.[38] Despite the warnings, he refused to pay.
Tulio also had a formal avenue to dispute his sewage use allocation when he received the notice of discharge allotment. After receiving the Borough's sewer usage modification notice, he had 30 days to appeal to the Borough Superintendent. Lansdale Borough Code § 323-31. A decision denying modification of a sewer use permit is a final administrative decision subject to judicial review in the Montgomery County Court of Common Pleas. Id. § 323-31(D)-(E). Tulio did not seek judicial review.
Tulio had the opportunity to present his complaint that he was...
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