# MADAR v. CITY OF PHILADELPHIA

> District Court, E.D. Pennsylvania · May 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10401075

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** May 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10401075

## How later opinions describe it (automated extraction)

- holding that suit against individual in his/her official capacity is a suit against the governmental entity that employees that individual
- noting that “mere occupation of the property for a limited period of time” does not amount to possession
- holding that notice is “constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________________
:
ANAT MADAR, : CIVIL ACTION
:
Plaintiff, :
:
v. : No. 19-6033
:
CITY OF PHILADELPHIA, et al., :
:
Defendants. :
____________________________________________:

Goldberg, J. May 27, 2021

MEMORANDUM OPINION

This case involves a dispute over demolished property which was located at 5025 Reno
Street, Philadelphia, Pennsylvania. Plaintiff Anat Madar purchased this property through a Sheriff’s
sale, but before she ever fully acquired title, the Philadelphia Department of Licenses and
Inspections (“L&I”) scheduled it for demolition. Plaintiff only learned of the demolition after it was
complete. As a result, Plaintiff filed suit against Defendants City of Philadelphia, Mayor James
Kenney, and L&I Commissioner David Perri (collectively, “Defendants”) seeking damages for the
City’s alleged failure to properly notify her. The Complaint sets forth causes of action for trespass
(Count I), negligence (Count II), due process and equal protection violations under 42 U.S.C. § 1983
(Count III), and taking (Count IV).
Defendants move for summary judgment on all of Plaintiff’s claims. For the following
reasons, I will grant summary judgment in favor of Defendants.
I. UNDISPUTED MATERIAL FACTS
Unless otherwise indicated, the following facts are undisputed.1
A. Plaintiff’s Purchase of the Property
Plaintiff owns, and has owned, several rental properties in Philadelphia. (DSUF ¶ 31; PR ¶
31.) Over the past ten years, she has purchased and renovated and rented single properties in
Philadelphia, some of which were purchased through Sheriff’s sales. (Defs.’ Ex. A, Dep. of Anat

Madar, 9:11–12:4.)
On March 21, 2019, a Sheriff’s sale was held for a property located at 5025 Reno Street,
Philadelphia, Pennsylvania (the “Property”) (DSUF ¶ 32; PR ¶ 32.) As of the date of that sale, the
Philadelphia Office of Property Assessment records showed the Property’s owners as Norman
Kenneth Jones and Delores Jones at 1719 Tulpehocken Street, Philadelphia, Pennsylvania. (DSUF
¶ 33; PR ¶ 33; PSUF ¶ 14.) A tax lien petition had previously been placed on the Property for taxes
unpaid since 1999, and consequently, the City of Philadelphia had obtained a default judgment
against Norman and Delores Jones. (Pl.’s Ex. H.) Although the Property had twice been sold at a
Sheriff’s Sale—on December 15, 2017 and March 23, 2018—the purchasers did not comply with

the terms of sale, and the Property had to be relisted. (Pl.’s Ex. G.)
At a subsequent March 21, 2019 Sheriff’s Sale, Coby Krispen of Advanced LLC—an
experienced Sheriff’s Sale purchaser acting on Plaintiff’s behalf—successfully bid for the Property.
(DSUF ¶ 34; PR ¶ 34; Madar Dep. 17:6–18:14.) The total purchase price was $12,100. (DSUF ¶

1 References to the parties’ pleadings will be made as follows: Plaintiff’s Statement of
Undisputed Facts (“PSUF”); Defendants’ Statement of Undisputed Facts (“DSUF”); and Plaintiff’s
Response (“PR”). To the extent a statement is undisputed by the parties, I will cite only to the
parties’ submissions. If a statement is disputed and can be resolved by reference to the exhibits, I
will cite the supporting exhibits. I will not rely on any statement of fact that is unsupported by
reference to a specific exhibit.
35; PR ¶ 35; Defs.’ Ex. H, at Interrogatory 2.) Advanced LLC put down a deposit of $1,250, which
was reimbursed by Plaintiff. (Defs.’ Ex. H, at Interrogatory 2.) Plaintiff also paid Advanced LLC
an additional $3,000 for its bidding services and assignment of the bid. (DSUF ¶ 35; PR ¶ 35.)
On April 9, 2019, Plaintiff paid the balance of the purchase price of $10,850. (Id.) That
same day, Plaintiff gave the Sheriff written instructions to convey title to her at her address of 206
Terwood Road, Huntingdon Valley, PA 19006, and the City Department of Revenue issued a

Certificate of Compliance with the Sheriff’s terms of sale. (Pl.’s Exs. E & F.) On April 23, 2019,
Plaintiff’s deed to the Property was acknowledged. (DSUF ¶ 37; PR ¶ 37.) That deed was recorded
on May 3, 2019. (DSUF ¶ 38; PR ¶ 38.)
As of the date of the March 21, 2019 Sheriff’s sale, Plaintiff had never personally been to or
seen a photograph of the Property. Prior to the sale, Coby Krispen, from Advanced, LLC, had gone
to the Property and reported on its condition to Plaintiff. (DSUF ¶ 39; PR ¶ 39; Defs.’ Ex. A, Dep.
of Anat Madar (“Madar Dep.”), 16:21–21:2.) In addition, Plaintiff’s contractor, Nimrod Ripner,
had inspected the property from the outside and apprised Plaintiff of his observations. (Madar Dep.
21:3–23:24.) Based on the reports from Mr. Krispen and Mr. Ripner, Plaintiff was aware when she

bought the Property that it had no roof and was in need of renovation. (Id. at 22:14–23:5.) Mr.
Ripner provided Plaintiff an estimate of $95,000 to $100,000 in order to renovate the property with
a three-bedroom house suitable for rent. (Id. at 40:13–41:4.) Plaintiff testified that, prior to
purchase, she did not know the condition of the house, if it had any bedrooms or bathrooms, or
working utilities, and she bought it with the intention of renovating it. (Id. at 24:10–25:16; 32:8–
20.) She testified that she knew the Property was not “livable.” (Id. at 46:12–17.)
Importantly, Plaintiff also understood that, due to the Property’s condition, she would need
to obtain a “Make Safe” permit for the Property. (Id. at 22:14–23:5.) It is the policy of L&I, as
posted on the public website, that a “Make Safe” building permit is required for a property owner
to repair a structure that has been marked as unsafe or imminently dangerous. (Defs.’ Ex. V.) A
Make Safe permit must include the complete scope of work and current owner information, and will
only be issued if the property owner provides plans, pictures, and a Pennsylvania-licensed engineer’s
report. (Id.)
B. The City’s Policy Regarding Unsafe Properties
The L&I Contractual Services Unit is responsible for the inspection of unsafe and dangerous

properties in Philadelphia. (DSUF ¶ 20; PR ¶ 20.) When L&I code inspectors determine that a
property is in violation of the City Code, that property is photographed, a violation is issued, and a
physical notice of the violation is posted on the property. (DSUF ¶ 21; PR ¶ 21.) In 2019, and prior,
the City Department of L&I maintained a policy requiring that the Department notify a property
owner of a code violation by certified and regular mail. (DSUF ¶ 22; PR ¶ 22; Pl.’s Ex. J, Rule
30(b)(6) Deposition of City of Philadelphia Rep. Stephen Gallagher (“Gallagher Dep.”) 10:20–
11:10.) The property owner is the “owner of record” or “registered owner.” (Id. at 12:22–13:2.)
The notices are physically sent by clerical staff in the L&I Contractual Services Unit. (DSUF ¶ 23;
PR ¶ 23.)

Stephen Gallagher, Director of Emergency Services at L&I, testified that L&I hires
researchers to look for additional owners by investigating records at both the City’s Office of
Property Assessment website and the Sheriff’s department to ensure that any new owner receives
notice of violations. (Gallagher Dep. 6:18–24, 13:9–14, 14:15–16:24, 18:4–19.) The researchers
also check to see if anyone is paying the taxes on the property and, if so, who that person is. 2 (Id.

2 (See also Pl.’s Ex. L, Dep. of Bartlett Clark (“Clark Dep.”) 7:9–22. 10:10–13, 10:22–12:17,
13:4–23 (testifying, as the L&I official who runs the City’s demolition program, that prior to a
demolition, his department does research on a property to ensure that the proper owner gets notice);
Pl.’s Ex. M., Dep. of Megan Flade (“Flade Dep.”), 7:10–12, 8:23-9:2, 18:12-19:7, 20:15–19
(testifying as an administrative professional in the contractual services unit of L&I, that the
department does “demo research” on properties scheduled for demolition by “research[ing] new
at 19:16–20:5.) If a new owner is discovered, the property is removed from the demolition list, and
the new owner gets a notice and an opportunity to correct the violation before demolition. (Id. at
17:4–11; Flade Dep. 18:12–19:7.) For every property that is scheduled for demolition, L&I
employees will check to see if there is a Sheriff’s sale that took place or is imminently pending.
(Gallagher Dep. 14:15–15:10, 20:20–21:23.) An exception to these procedures exists where there
is a collapse of an unsafe property and the property needs to be demolished right away. (Clark Dep.

14:18–15:14; Defs.’ Ex. E, Dep. of Richard Quigley (“Quigley Dep.”), 33:20–23.)
C. The Demolition of the Property
On June 12, 2018, significantly prior to Plaintiff’s purchase of the Property, Inspector Victor
Collins of the Philadelphia Department of Licenses and Inspections (“L&I”) inspected the Property.
Based on his observations, he declared it “Unsafe” because the roofing or roofing components on
the porch roof had defects that showed signs of deterioration, fatigue, and/or inability to support
normal loads. (Defs.’ Ex. K.) Shortly thereafter, an Initial Notice of Violation and order for Unsafe
Building was sent via certified mail to Norman and Delores Jones, who were the registered owners
of the Property at the time. (Id.; Defs.’ Ex. F, Dep. of Victor Collins (“Collins Dep.”) 37:14–23.)

The Notice stated, in pertinent part:
You are directed to obtain all necessary permits as required by the
City and to make repairs or demolish the structure to remove the
unsafe condition in order to address public safety. Failure to comply
with this order within 30 days may result in the City taking action to
demolish the structure and to stucco remaining party walls exposed
by the demolition. You, the owner, will be billed for all costs incurred
by the City, including administrative fees.

owners, sheriff sales, any past taxes owed, if there’s permits in the system already applied for”);
Pl.’s Ex. O, Dep. of Erica Marable (“Marable Dep.”), 8:12–24, 13:10–19, 20:11–17 (testifying, as
a service technician for L&I in the contractual services unit, that she did research on properties
slated for demolition by pulling taxes owed, updated information on deeds, and Sheriff’s sale
information.)
(Defs.’ Ex. K.) The certified mailing containing the June 12, 2018 Notice of Violation was returned
to L&I, the sender, as unclaimed on July 22, 2018. (DSUF ¶ 54; PR ¶ 54.)
On March 25, 2019, L&I Inspector Barlett Clark conducted another inspection of the
Property and again declared it “Unsafe” for the same reasons as set forth in the previous Notice.
(Defs.’ Ex. L.) That same day, a “Final Warning Unsafe Building” Notice was again sent to Norman
and Delores Jones. (Id.) That Notice contained the identical warning about demolition as was

contained in the Initial Notice. (Id.) The certified mailing sent to Norman and Delores Jones was
unclaimed. (DSUF ¶ 59; PR ¶ 59.)
The Property suffered a collapse in April of 2019. (Clark Dep. 14:14–15:1, 28:17–29:2;
Quigley Dep. 7:10–18, 35:10–19.) On April 11, 2019, L&I Inspector Clark and Richard Quigley,
supervisor of L&I’s Contractual Services Unit, received an emergency request regarding the
condition of the Property. (Quigley Dep. 35:12–23; Clark Dep. 28:17–2.) Based on their inspection,
the Property was declared “Imminently Dangerous” because the main roof and rear wall had
collapsed, and the first and second floor had collapsed to the basement. (Defs.’ Ex. M.) On April
12, 2019, a Final Notice of Violation and Order was sent, by certified mail, to Norman and Delores

Jones stating, in pertinent part:
You are directed to obtain all necessary permits as required by the
City and to make repairs or demolish the structure to remove the
imminently dangerous condition. Failure to comply with this order
forthwith shall result in the City taking action to demolish the
structure and stucco remaining party walls exposed by the demolition
as per Department policy. You, the owner, will be billed for all costs
incurred by the City, including administrative fees.

(Defs.’ Exs. M and N.) That Final Notice was unclaimed and returned to L&I on approximately
May 17, 2019. (Defs.’ Exs. N and O.)
During his April 11, 2019 inspection, Inspector Clark took photographs of the Property’s
interior and exterior depicting its collapse. (DSUF ¶ 64; PR ¶ 64; Defs.’ Ex. I.) Clark also “posted”
the Property by affixing a fluorescent red-orange poster to the Property stating that it was
“imminently dangerous” and subject to demolition. (DSUF ¶ 65; PR ¶ 65; Defs.’ Ex. I.)
On April 18, 2019, Clark took additional “pre-demolition” photographs of the Property and
issued a curbside bid for contractors to issue bid to perform the demolition. (Clark Dep. 16:8–17:19;
Defs.’ Ex. J & R.; DSUF ¶ 70; PR ¶ 70.) A&M Curran was the low bidder for the project and
received the contract. Id. On April 22, 2019, a building permit was issued by L&I for the

demolition. (DSUF ¶ 72; PR ¶ 70; Defs.’ Ex. P.) A&M Curran commenced demolition around May
1, 2019. (Defs.’ Exs. P and S.)
L&I employees could not identify in the case file any indication that anyone at L&I contacted
the Sheriff’s department as to whether there had been or would be a sale. (Gallagher Dep. 35:6–
23.) Gallagher had no personal involvement with the Property and had never inspected the Property.
(Id. at 8:20–10:7.) Likewise, Richard Quigley, the supervisor of the Contractual Services Unit at
L&I, testified that he did not know for sure if the Sheriff’s sale records were checked with respect
to Plaintiff’s Property because such measures were “just standard operating procedure” and no
records were kept. (Quigley Dep. 40:24–41:21.) Bartlett Clark, who ran the demolition program

for the City of Philadelphia, explained that, with respect to the Property at 5025 Reno Street, “it was
an emergency, so that overrides everything.” (Clark Dep. 14:18–20.)
D. Procedural History
On November 26, 2019, Plaintiff filed a complaint against the City of Philadelphia, Mayor
James Kenney, and Commissioner of L&I David Perri, alleging trespass, negligence, violations of
the Due Process Clause, Equal Protection Clause, and Takings Clause, and a separate claim under
42 U.S.C. § 1983. Defendants removed the case to federal court on December 20, 2019.
On December 11, 2020, Defendants filed a Motion for Summary Judgment on the entirety
of the Complaint.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 states, in pertinent part:
A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary
judgment is sought. The court shall grant summary judgment 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. The court
should state on the record the reasons for granting or denying the
motion.
Fed. R. Civ. P. 56(a). “Through summary adjudication, the court may dispose of those claims that
do not present a ‘genuine dispute as to any material fact’ and for which a jury trial would be an
empty and unnecessary formality.” Capitol Presort Servs., LLC v. XL Health Corp., 175 F. Supp.
3d 430, 433 (M.D. Pa. 2016). A factual dispute is “material” if it might affect the outcome of the
suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
is “genuine” only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder
to return a verdict for the non-moving party. Id.
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine,
triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Once the
moving party satisfies its burden, the non-moving party must present sufficient evidence of a
genuine issue, in rebuttal. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015). The court must
resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving
party. Saldana v. Kmart Corp, 260 F.3d 228, 232 (3d Cir. 2001). Unsubstantiated arguments made
in briefs are not considered evidence of asserted facts. Versarge v. Twp. of Clinton, 984 F.2d 1359,
1370 (3d Cir. 1993).
III. DISCUSSION
A. Section 1983 Claims
Plaintiff’s Complaint sets forth claims for violation of the Due Process Clause, the Equal
Protection Clause, and the Takings Clause.
Constitutional claims brought against state actors must be pursued under 42 U.S.C. §
1983. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law. . . .

42 U.S.C. § 1983. Local governments and municipalities are considered persons under § 1983 and
may be sued directly under that section when “the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers.” Monell v. Dept. of Soc. Servs. of City of NY, 436 U.S. 658,
690 (1978).
“[A] government entity may not be held vicariously liable under § 1983 for the acts of its
employees under a respondeat superior theory of liability.” Win & Son, Inc., 162 F. Supp. 3d 449,
459 (E.D. Pa. 2016) (citing Monell, 436 U.S. at 691). “Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Monell, 436 U.S. at 694; see also Mulholland v. County of Berks, 706
F.3d 227, 237 (3d Cir. 2013) (“When a suit against a municipality is based on § 1983, the
municipality can only be liable when the alleged constitutional transgression implements or executes
a policy, regulation, or decision officially adopted by the governing body or informally adopted by
custom.” (quotation marks omitted)). “The ‘official policy’ requirement was intended to distinguish
acts of the municipality from acts of employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality is actually responsible.” Pembaur
v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original).
To succeed on constitutional claims under Monell, a plaintiff must: “(1) identify a policy,
practice, or custom, (2) attribute it to the city, and (3) show a causal link between execution of the
policy and the injury suffered.” Win & Son, 162 F. Supp. 3d. at 459 (quoting Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984) (“A plaintiff must identify the challenged policy,
attribute it to the city itself, and show a causal link between execution of the policy and the injury
suffered.”). The policy or custom must be the “moving force” behind the plaintiff’s alleged injury.
Bd of Cty. Comm’rs of Bryan Cty., Oklahoma v. Brown, 520 U.S. 397, 404 (1997). “Policy is made
when a decisionmaker possessing final authority to establish municipal policy with respect to the
action issues an official proclamation, policy, or edict.” Mulholland, 706 F.3d at 237 (quotation and
internal quotation marks omitted). And a “course of conduct is considered to be a ‘custom’ when,
though not authorized by law, such practices of state officials are so permanent and well-settled as
to virtually constitute law.” Id. (quotation omitted).

Here, Plaintiff sues only the City of Philadelphia and Defendants Kenney and Perri in their
official capacities as City officials, meaning that it is a suit solely against the City. See Hafer v.
Melo, 502 U.S. 21, 25 (1991) (holding that suit against individual in his/her official capacity is a
suit against the governmental entity that employees that individual). Accordingly, I must now
consider, under the Monell theory of liability, whether a genuine issue of fact exists on any of
Plaintiff’s constitutional claims.
1. Substantive Due Process
Defendants first seek to dismiss Plaintiff’s substantive due process claim. Plaintiff offers no
response to this argument. 3
The substantive component of the Due Process Clause bars certain arbitrary and wrongful
government actions that deprive an individual of life, liberty, or property. U.S. Const., amend. XIV
§ 1; see also Tazioly v. City of Phila., No. 97-cv-1219, 1998 WL 633747, at *7 (E.D. Pa. Sept. 10,

1998) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)). The first step in assessing a substantive
due process claim is to identify the constitutional interest that was allegedly aggrieved. Chainey v.
Street, 523 F.3d 200, 219 (3d Cir. 2008). In order to successfully make out a substantive due process
claim in the context of local land use regulations, “a plaintiff must establish as a threshold matter
that he has a property interest protected by the Fourteenth Amendment’s due process clause.” Maple
Props., Inc. v. Twp. of Upper Providence, No. 00-cv-4828, 2004 WL 2579740, at *2 (E.D. Pa. Nov.
12, 2004) (citing Indep. Enters. Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179–80
(3d Cir. 1997)). As Plaintiff here owns a piece of property that was affected by Defendants’ actions,
she has established the presence of a property interest entitled to due process protection. See Maple,

2004 WL 2579740, at *2 (citing DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53
F.3d 592, 600 (3d Cir. 1995)); see also Cherry Hill Towers, LLC v. Twp. of Cherry Hill, 407 F.
Supp. 2d 648, 654 (D.N.J. 2006) (“As owner of the Cherry Hill Towers property, Plaintiff clearly
has a property interest protected by due process.”).
The second step in the substantive due process analysis is ascertaining whether the identified
property interest has, in fact, been aggrieved by the government. Maple Props., 2004 WL 2579740,

3 Plaintiff does not specify whether she is proceeding under the procedural due process
component or the substantive due process component of the Due Process Clause. In the interests of
comprehensiveness, I address both claims.
at *2. Government action does not violate substantive due process when merely prompted by an
“improper motive.” Cnty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 169 (3d Cir. 2006).
Rather, the standard for determining substantive due process violations is whether government
action rises to the level of “shocking the conscience.” United Artists Theatre Circuit v. Twp. of
Warrington, 316 F.3d 392, 400 (3d Cir. 2003). While there is no “calibrated yard stick” upon which
to measure such conduct, the United States Supreme Court has recognized that “only the most

egregious official conduct” qualifies. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir. 2006)
(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 847 n.8 (1998)); see also Cherry Hill
Towers, 407 F. Supp. 2d at 655.
Plaintiff fails to identify evidence of conscience-shocking behavior in the City’s demolition
of her Property without giving her actual notice. The Supreme Court has observed that “all property
in this country is held under the implied obligation that the owner’s use of it shall not be injurious
to the community.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491–92
(1987) (quotation omitted). “[T]he public interest demands that all dangerous conditions be
prevented or abated,” and, thus, inspections of private property designed at ensuring compliance

with certain safety standards are not unconstitutional. Camara v. Municipal Court of San Francisco,
387 U.S. 523, 537 (1967).
In the analogous case of El Malik v. City of Philadelphia, No. 06-cv-1708, 2007 WL 984455
(E.D. Pa. March 26, 2007), the plaintiffs brought suit under § 1983 claiming, in part, that the City
of Philadelphia and several City employees violated the plaintiffs’ substantive due process rights
when the City demolished three of the plaintiffs’ structures because they were imminently
dangerous. Id. at *1. The evidence in that case revealed that each of the structures had already
partially collapsed and that the City properly deemed them “imminently dangerous.” Id. at *7. The
court found that “[t]he demolition of imminently dangerous structures in accordance with City
procedures does not shock the Court’s conscience.” Id. (citing Davet v. City of Cleveland, 456 F.3d
549, 552 (6th Cir. 2006) (finding that substantive due process claim failed because plaintiff could
not establish that municipal actions taken pursuant to a valid condemnation order and in accordance
with the procedures mandated by city and state law shocked the conscience or were arbitrary and
capricious)).
Here, the undisputed facts reveal that the Property at issue was also “imminently dangerous.”

Under the Philadelphia’s Property Maintenance Code, a building is deemed “imminently
dangerous” when any part of it is in “imminent danger of failure or collapse” or has fallen or
collapsed, and human life is endangered. Phila. Property Maintenance Code (“PM Code”) § 110.1.
The PM Code goes on to provide that
If an imminently dangerous condition is found, the code official shall
serve on the owner, managing agent or person in control of the
structure a written notice describing the imminent danger and
specifying the required repair to render the structure safe, or requiring
the imminently dangerous structure or portion thereof to be
demolished within a stipulated time. Such notice shall require the
person thus notified to declare immediately to the code official
acceptance or rejection of the terms of an order to demolish.

PM Code §110.2
Where the order to eliminate an imminent danger is rejected or not
obeyed, or when, in the opinion of the code official, immediate action
is required to protect the public safety, the code official shall cause
the necessary work to be done to demolish the structure or to render
the structure temporarily safe. Nothing in this code shall be deemed
to limit in any way the right, under any existing law or ordinance, of
any department of the City to correct or remove any condition deemed
to be an immediate hazard to the health or safety of the public. . . .

PM Code § 110.4 (emphasis added).
On June 12, 2018, Inspector Victor Collins of L&I inspected the Property and declared it
“Unsafe” because the roofing or roofing components on the porch roof had defects that showed
signs of deterioration, fatigue, and/or inability to support normal loads. (Defs.’ Ex. K.) Both L&I
Inspector Clark and Richard Quigley, supervisor of L&I’s Contractual Services Unit, testified that
the Property suffered a collapse in April of 2019, and they received and emergency request regarding
the condition of the Property. (Clark Dep. 28:17–29:2; Quigley Dep. 35:10–23.) Based on their
inspection, the Property was declared “Imminently Dangerous.” (Defs.’ Ex. M.) According to the
inspection, the main roof and rear wall had collapsed, and the first and second floor had collapsed
to the basement. (Id.) Pre-demolition photographs of the Property, taken on April 18, 2019,

demonstrate the dilapidated and dangerous condition of the Property. (Defs.’ Ex. J.)
Plaintiff offers no contrary evidence to dispute that the Property was, in fact, “imminently
dangerous” or to support the notion that the City’s characterization of the Property was arbitrary.
Indeed, Plaintiff admitted that, as of the date of the Sheriff’s sale, she had never personally been to
or seen a photograph of the Property. (Madar Dep.16:21–23:24.) Moreover, based on her agents’
reports, Plaintiff was aware when she bought the Property that it had no roof and that she needed to
obtain a “Make Safe” permit. (Id. at 22:14–23:5.)
As there is no genuine issue of material fact about the inherent danger of the Property, and
as the demolition of an imminently dangerous structure does not shock the conscience, Plaintiff

cannot maintain a substantive due process claim. Accordingly, I will grant summary judgment on
this cause of action in favor of Defendants.
2. Procedural Due Process
Defendants also seek summary judgment on Plaintiff’s procedural due process claim.
“At the core of procedural due process jurisprudence is the right to advance notice of
significant deprivations of liberty or property and to a meaningful opportunity to be heard.” Abbott
v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998). In order to successfully establish a prima facie case
of a procedural due process violation, a plaintiff must show: (1) there has been a deprivation of the
plaintiff’s liberty or property, and (2) the procedures used by the government to remedy the
deprivation were constitutionally inadequate. See Studli v. Children & Youth Families Central
Reg’l Office, 346 F. App’x 804, 813 (3d Cir. 2009); Mulholland v. Gov’t of Cty. of Berks, No. 10–
cv-5616, 2012 WL 1057446, at *8 (E.D. Pa. Mar. 29, 2012), aff’d, 706 F.3d 227 (3d Cir. 2013).
Remedial procedures will be deemed constitutionally inadequate if “they contain a defect so
serious [as to] characterize the procedures as fundamentally unfair.” See Leonard v. Owen J.
Roberts Sch. Dist., No. 08-cv-2016, 2009 WL 603160, at *4 (E.D. Pa. Mar. 5, 2009) (citing Daniels

v. Williams, 474 U.S. 327, 341 (1987) (Stevens, J., concurring)). In other words, “the focus in
procedural due process claims is on the adequacy of the remedial procedure, and not on the
government’s actual actions that allegedly deprived the individual of his liberty or property interest.”
K.S.S. v. Montgomery Cnty. Bd. of Comm’rs., 871 F. Supp. 2d 389, 397–98 (E.D. Pa. 2012). )).
“The process that is ‘due’ in a given situation necessarily differs based on the particular
circumstances.” Maple Props., Inc. v. Twp. of Upper Providence, 151 F. App’x 174, 177 (3d Cir.
2005) (citations omitted).
In the context of property deprivations, the United States Supreme Court “has never
employed an actual notice standard in its jurisprudence. Rather, its focus has always been on the

procedures in place to effect notice.” United States v. One Toshiba Color Television, 213 F.3d 147,
155 (3d Cir. 2000). Thus, “[d]ue process does not require that a property owner receive actual
notice before the government may take his property.” Jones v. Flowers, 547 U.S. 220, 226 (2006).
It mandates only that notice be “reasonably calculated under all the circumstances to apprise
interested parties of the pendency of the action and afford them opportunity to present their
objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also
Flowers, 547 U.S. at 220 (holding that notice is “constitutionally sufficient if it was reasonably
calculated to reach the intended recipient when sent.”). The Supreme Court has explained that if,
for example, notice sent by certified mail is returned unclaimed, the municipality must “take
additional reasonable steps to attempt to provide notice to the property owner before selling his
property, if it is practicable to do so.” Flowers, 547 U.S. at 225. The Court recognized that such
steps could include resending the notice by regular mail, addressing otherwise undeliverable mail
to occupant, or posting notice on the front door. Id. at 236–37. A government’s “open-ended search
for a new address,” however, is not required because it “imposes burdens on the State significantly
greater than the several relatively easy options outlined above.” Id. at 236.

Two recent cases, similar to the facts at issue here, considered and rejected a procedural due
process claim in the context of section 1983 case against the City of Philadelphia for failure to notify
about a property demolition. In Win & Son, Inc. v. City of Philadelphia, 162 F. Supp. 3d 449 (E.D.
Pa. 2016), the plaintiffs brought a procedural due process claim against the City of Philadelphia
after the City condemned and demolished a warehouse owned by plaintiffs containing valuable art
and artifacts. because the policies. Id. at 453–57. The City’s L&I Department had been notified of
a collapse at the property and, upon inspection, declared the property “imminently dangerous.” Id.
at 453. The inspector posed a bright orange “imminently dangerous” poster on the side of the
building, and that poster stated that the property may be demolished if not repaired. Id. The

inspector entered the information from his report into L&I’s case management system, and notice
of the violation was automatically sent to the record owners via certified and regular mail. Id. at
454. The owners’ address was listed to be at the property, but the owners actually had a different
address. Id. As such, the certified mail notice was returned to L&I with the notation, “Unable to
Forward,” and the City took no further actions to provide notice of the violation. Id. The property’s
condition continued to decline, and the City entered into a contract for demolition. Id. at 455.
Following demolition, the plaintiffs sued alleging, in part, a violation of procedural due process
under 42 U.S.C. § 1983. Id. at 458.
The court granted summary judgment in favor of the City on this claim. Reviewing the
Philadelphia Administrative Code and Property Maintenance Code, the court found that the official
policies—specifically the provision allowing for notice by posting at the property—were sufficient
to satisfy due process requirements. Id. at 460–61. The court remarked that while there were
potentially genuine issues of fact regarding whether notice was actually provided, or whether the
government employees failed in their responsibilities to follow City polices, those issues were not

material because the plaintiffs had sued only the City and not the offending officers. In other words,
the court held that the plaintiffs had not put forth a lack of adequate policies, which was their burden
under Monell, but rather a lack of compliance with its enumerated policies. Id. at 462. Accordingly,
the plaintiff’s procedural due claim failed as a matter of law. Id.
Likewise, in the recent case of Johnson v. City of Philadelphia, No. 19-cv-1591, 2020 WL
2933853 (E.D. Pa. June 3, 2020), the plaintiff owned a vacant property in Philadelphia and was
ordered to obtain a vacant property license, which he failed to do. Id. at *1. In the time between
the City’s order and the court date on his code enforcement complaint, the property’s exterior wall
began to bulge. Id. A City inspector came out and declared the property unsafe. Id. at *2. The

inspector photographed the bulge and left a notice at the front door about the “unsafe” determination.
Id. The notice also stated that if the plaintiff failed to obey the order, the structure would be subject
to demolition within thirty days. Id. The next day, the inspector sent the plaintiff a Notice of
Violation by certified mail, but the notice was returned as undeliverable because it was mailed to
the incorrect address. Id. at *3. More than a month later, the property was reinspected and a second
Notice of Violation was sent, but again that notice was returned as undeliverable. Id. Twelve days
later, the City was called out to the property by the Fire Department due to falling bricks, and the
inspector noticed that a wall had partially collapsed. Id. The inspector declared it “imminently
dangerous,” posted another notice on the property, and sent plaintiff a third notice of violation,
which was again returned as undeliverable. Id. at *3–4. Two days later, demolition of the property
began. Id. at *4. Plaintiff sued alleging a procedural due process violation. Id.
Considering Philadelphia’s Administrative and Property Code provisions, the court found
that “[t]hese policies and practices comply with Jones and ensure that notice is ‘reasonably
calculated, under all the circumstances to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.’” Id. at *9 (quotation omitted). The

court went on to note that even if the inspector’s efforts at notice were inadequate, “a one-time
failure to provide notice does not amount to a custom or policy of unconstitutional conduct for which
the city may be held liable under § 1983.” Id. Rejecting the plaintiff’s argument that the inspector
did not comply with the expected practice of mailing code violation notices to all known addresses
for the property owner, the court held that “the § 1983 inquiry, as explained in Monell, . . . looks at
whether the government had adequate policies, not at whether a government official complied with
those policies.” Id. at *10. It concluded that “although there may have been a genuine issue of fact
about whether notice was actually provided in this case, or whether particular government
employees failed in their responsibilities to follow City policies, those facts were not material

because the plaintiffs chose to sue the City alone rather than the offending officers.” Id. (internal
quotation marks omitted).
Similar to Win & Son and Johnson, Plaintiff here has sued only the City and City officials
in their official capacities, and not any City employees in their individual capacities. As such, under
Monell, “the relevant inquiry is whether the City’s policies, practices, or customs were adequate to
ensure that Plaintiff[] received the notice to which [she] was entitled under the Due Process Clause.”
Win & Son, 162 F. Supp. 3d at 460.
My consideration of this claim requires a review of the same Property and Administrative
Code provisions at issue in Johnson and Win & Son. Section 110.2 of the Philadelphia Property
Maintenance Code provides that if an “imminently dangerous” condition is found, the official shall
serve on the owner a written notice describing the danger, specifying the required repair, or requiring
the structure to be demolished within a stipulated time, and the notice shall require the owner to
declare immediately to the code official acceptance or rejections of the terms. PM Code § 110.2.
Section 110.3 of the Property Maintenance Code also states that, “[r]egardless of whether the person
addressed with a notice of imminent danger receives service by one or more of the methods specified

in the administrative code, a copy of the notice shall be posted in a conspicuous place on the
premises; and such procedure shall be deemed the equivalent of personal notice.” PM Code § 110.3
(emphasis in original).
Section A-502.4 of the Philadelphia Administrative Code also sets forth the appropriate
procedure for providing violation notices issued by City officials:
Method of service: A notice of violation shall be deemed to be
properly served if a copy thereof is delivered to such persons
prescribed in Section A-502.3 by one or more of the following:

1. Personally;

2. By first class mail to the last known residence or business address;

3. By certified or registered mail to the last known residence or
business address, return receipt requested;

4. By leaving it in the possession of an adult member of the person’s
family;

5. By leaving it in the possession of an adult in charge of the premises
or persons place of business; or

6. If no address is known or the mail is returned indicated no delivery,
a copy of the notice shall be posted in a conspicuous place at the
entrance or avenue of access to the premises and such procedure
shall be deemed the equivalent of personal notice.

Philadelphia Administrative Code A-502.4 (emphasis added).
According to the undisputed evidence, the Property at issue here was originally declared
“Unsafe” on June 12, 2018, prior to Plaintiff’s Sheriff’s sale purchase, because the porch roof had
defects that showed signs of deterioration, fatigue, and/or inability to support normal loads. (Defs.’
Ex. K.) An Initial Notice of Violation and order for Unsafe Building was sent via certified mail to
Norman and Delores Jones, who were the registered owners of the Property at the time, directing
them to make all necessary repairs within thirty days. (Id.) The certified mailing of that Notice was

returned to L&I, the sender, as unclaimed on July 22, 2018. (DSUF ¶ 54; PR ¶ 54.). Thereafter, on
March 25, 2019—still prior to Plaintiff’s purchase—the Property was again declared “Unsafe” and
a “Final Warning Unsafe Building” Notice was sent on March 25, 2019, again to Norman and
Delores Jones. (Defs.’ Ex. L.) That Notice was also unclaimed. (DSUF ¶ 59; PR ¶ 59.)
In early April 2019, the Property suffered a collapse and was declared “Imminently
Dangerous.” (Defs.’ Ex. M.) On April 11, 2019, the date of the inspection, photographs were taken
of the Property’s interior and exterior depicting its collapse, and the Inspector “posted” the Property
by affixing a fluorescent red-orange poster to the Property stating that it was “imminently
dangerous” and subject to demolition. (Defs.’ Ex. I.) A Final Notice of Violation and Order was

also sent by certified mail, on April 12, 2019, to Norman and Delores Jones, but that notice was
unclaimed and returned to L&I on approximately May 17, 2019. (Defs.’ Exs. N and O.) Demolition
of the property commenced around May 1, 2019. (Defs.’ Exs. P and S.)
Plaintiff contends that Defendants violated her procedural due process rights by failing to
give her notice of their intention to demolish the Property. She posits that the City’s “ill-defined”
procedure for searching records was insufficient for due process requirements. She further asserts
that the City should have had in place a written procedure “whereby information regarding
properties sold at Sheriff’s Sale and the identity of new owners be shared between its departments”
and a “policy and procedure to both advise bidders at sale of the violation status of properties being
sold, and to require L&I, or another agency, to determine whether the property had been sold at
Sheriff’s Sale and to identify and notify the new owner before attempting to demolish a property.”
(Pl.’s Resp. 21.) Plaintiff presses that the City produced no evidence that it followed its unofficial
policy to search the Sheriff’s sale records before the proposed demolition, and she argues that it
could have easily learned the identity of the new owner by contacting the Sheriff’s office either by
phone or through its website. Plaintiff avers that the City’s failure to take any logical or reasonable

steps, prior to demolition, to determine whether the Property had been sold, to ascertain the new
owner’s identity, and to notify Plaintiff that it intended to demolish the Property constitutes a
violation of her procedural due process rights.
Plaintiff’s argument fails on several grounds. First, while Plaintiff’s suggestions to improve
the notification process may be reasonable, mandatory implementation of such broad suggestions
exceeds the demands of due process. The City has cited several official policies reasonably designed
to ensure that sufficient notice is given, including certified mailing of the Notice of Violation to the
owner’s address of record, searching records of Sheriff’s sales to determine if the property has been
sold, and posting Notice at the Property. As the Court found in both Jones and Win & Son, the

City’s guidelines and procedures were reasonably calculated, under all the circumstances, to apprise
interested parties of the violation and, in turn, were sufficient to satisfy minimum due process
requirements. Absent evidence that such guidelines were routinely ignored, any isolated violation
of them did not occur pursuant to a policy or custom or policy under which Monell liability can be
imposed on the City. 4

4 Plaintiff relies on the case of City of Pittsburgh v. Piviorotto, 502 A.2d 747 (Pa. Commw.
1985) in which the Pennsylvania Commonwealth Court affirmed an order from the lower court
holding the City liable for demolishing a house without providing notice to an individual who
purchased the property at a delinquent tax sale. At issue there, however, was specifically whether
the City’s practice of making its final title search to ascertain the record owner at the time that bids
for demolition were solicited satisfied the requirements of due process when the actual demolition
Second, it is undisputed that the City conspicuously posted the Notice at the Property, which,
as the Supreme Court has recognized, is sufficient for due process concerns. See Flowers, 547 U.S.
at 235 (“Occupants who might disregard a certified mail slip not addressed to them are less likely
to ignore posted notice . . .”); Greene v. Lindsey, 456 U.S. 444, 452–53 (1982) (“Short of providing
personal service, then, posting notice on the door of a person’s home would, in many or perhaps
most instances, constitute not only a constitutionally acceptable means of service, but indeed a

singularly appropriate and effective way of ensuring that a person who cannot conveniently be
served personally is actually apprised of the proceedings against him.”).5 Plaintiff admitted that at
no point after the Sheriff’s sale and prior to the demolition of the Property had she seen the Property.
Thus, her failure to see the posted Notice cannot be deemed a due process violation.
Third, Plaintiff explicitly testified that, as of March 21, 2019, she was aware that the Property
needed a Make Safe permit. (Madar Dep. 22:14–23:9; Defs.’ Ex. H, at Interrogatory 2.) According
to L&I’s website, a Make Safe building permit is required “to repair a structure that has been marked

does not take place until weeks later. Id. at 751. The court found that the City’s policy as to when
it would finally check ownership was not reasonably calculated, under all the circumstances, to
apprise interested parties of the City’s plans to demolish condemned properties. Id. It held that due
process did not require daily or weekly searches of the record to ascertain whether ownership of
condemned properties has changed. Id. Rather, all that was required was “a single title search
shortly before demolition begins.” Id.
That policy is not at issue here. Indeed, unlike in Pivirotto, where the plaintiff’s deed to the
property was recorded one day after the City made its final title search but twenty-two days prior to
actual demolition, it is undisputed here that Plaintiff’s deed to the property was not recorded until
after commencement of demolition.

5 Plaintiff cites Greene for the proposition that notice by posting is not a reasonable method
of service. The Supreme Court, in Greene, however, actually found that notice by posting was
often sufficient to satisfy due process concerns. Only under the particular circumstances of that case
did the Supreme Court deem notice of eviction proceedings posted on residences to be insufficient
because the authorities knew that, in that area, notices were often removed from properties. Id. at
453 (“[W]hatever the efficacy of posting in many cases, it is clear that, in the circumstances of this
case, merely posting notice on an apartment door does not satisfy minimum standards of due
process.” (emphasis added)).
Plaintiff has produced no evidence indicating that similar circumstances exist here.
as unsafe or imminently dangerous.” (Defs.’ Ex. V.) Thus, by Plaintiff’s own admission, she had
express notice that, at minimum, the Property had code violations and, at most, that it was marked
“imminently dangerous,” which would indicate that it would be demolished.
Finally, even had the City undertaken a more in depth search to find Plaintiff’s identity, it is
unclear that such a search would have yielded Plaintiff’s name. Although none of the City’s
witnesses could affirmatively say what types of searches or owner investigations were done with

respect to the Property here, the City’s witnesses explained that searches through Sheriff’s sales
were “standard operating procedure.” Here, the Property was marked as “Imminently Dangerous”
on April 11, 2019, and a contract for demolition was entered into on April 22, 2019.
In short, while “[t]here may be genuine issues of fact regarding whether notice was actually
provided in this case, or whether particular government employees failed in their responsibilities to
follow City policies, [] they are not material under the theory Plaintiff[] ha[s] pursued” against only
the City. Win & Son, 162 F. Supp. 3d at 462 (emphasis in original). As Plaintiff has sued only the
City and its officials under a Monell theory of liability, the sole question is whether Plaintiff was
injured as a result of an unconstitutional policy, practice, or custom of the City. As set forth above,

Plaintiff has failed to identify any such unconstitutional policy, practice, or custom. Therefore, I
will grant summary judgment in favor of Defendants on the procedural due process claim.
3. Equal Protection Claims
Plaintiff also alleges that Defendants violated her rights under the Equal Protection Clause.
Defendants respond that “regardless of the specific theory that Plaintiff attempts to invoke, this
claim fails because the record contains no evidence whatsoever as to any ‘similarly situated’ person
who received different or better treatment than Plaintiff.” (Defs.’ Mem. Supp. Summ. J. 21.) I agree
with Defendants and will grant summary judgment on this claim.
The United States Supreme Court has “recognized successful equal protection claims
brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal citations omitted).
A plaintiff asserting a “class of one” claim “must allege that (1) the defendant treated him differently
from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational

basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.
2006); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). “These challenges
fail when ‘there is any reasonably conceivable state of facts that could provide a rational basis for
the classification.’” Hwy. Materials, Inc. v. Whitemarsh Twp., 386 F. App’x 251, 259 (3d Cir.
2010) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). Notably, an equal protection claim is not
“a device to dilute the stringent requirements needed to show a substantive due process violation.”
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 287 (3d Cir. 2004).
Here, Plaintiff’s Complaint merely asserts a violation of the Equal Protection Clause without
any explanation for the basis for that claim. Plaintiff fails to flesh this claim out in response to

Defendants’ Motion for Summary Judgment. Absent any evidence that a similarly-situated property
owner was treated better or differently than Plaintiff, I will grant summary judgment on this claim
in favor of Defendants.
4. Takings Claim
Plaintiff’s takings claim alleges that the actions of Defendants in ordering, authorizing, and
demolishing the dwelling on the Property without notice or permission of Plaintiff, and without
opportunity for a prior hearing, constituted a de facto taking of Plaintiff’s property for public use in
violation the U.S. Constitution.6 Defendants seek summary judgment, contending that Plaintiff has
not produced any evidence to prove that her property was seized for public use; rather it was taken
through the City’s police powers to cure a dangerous condition.
The Takings Clause of the Fifth Amendment provides: “. . . nor shall private property be
taken for public use, without just compensation.” It applies to the states as well as the federal
government. U.S. Const., amend V. “[A] property owner has a claim for a violation of the Takings

Clause as soon as a government takes his property for public use without paying for it.” Knick v.
Twp. of Scott, 139 S. Ct. 2162, 2170 (2019). However, “[a] municipality may, in the exercise of its
police, power, without compensation destroy a building or structure that is a menace to the public
safety or welfare, or require the owner to demolish the dangerous piece of property.” In re 106 N.
Walnut, LLC, 447 F. App’x 305, 309 (3d Cir. 2011) (quotation omitted). “A property owner is only
entitled to recover . . . if the government action ‘deprived [him] of all or substantially all of the
beneficial use’ of the property.” Id. at 308 (quotation omitted).
Here, although Plaintiff cursorily asserts that the actions of the City were not a valid exercise
of its police powers, Plaintiff does not dispute that the building on the Property had collapsed and

was marked “imminently dangerous,” as a threat to the public safety. Plaintiff also does not allege
that the City’s actions deprived her of all beneficial use of the Property, only that the structure on
the Property was demolished. Finally, Plaintiff does not put forth any basis for a finding that the
Property was taken for public use. Absent Plaintiff’s production of evidence substantiating the core
elements of a Takings Clause claim, I will grant summary judgment in favor of Defendants.

6 Plaintiff also raises this claim under the Pennsylvania Constitution and the Pennsylvania
Eminent Domain Code but analyzes it solely under the U.S. Constitution.
B. Trespass and Negligence Claims
Defendants next contend that Plaintiff’s claims for trespass and negligence must be
dismissed as a matter of law pursuant to the Pennsylvania Political Subdivision Tort Claims Act
(“Tort Claims Act”), 42 Pa. Cons. Stat. § 8541, et seq.
The Tort Claims Act bestows absolute immunity from tort liability upon the Borough unless
one of eight specific exceptions applies. 42 Pa. Cons. Stat. § 8541; Kiley v. City of Phila., 645 A.2d

184, 185 (1994). The eight exceptions are for (1) vehicle liability; (2) care, custody, or control of
personal property; (3) real property; (4) trees, traffic controls, and street lighting; (5) utility service
facilities; (6) streets; (7) sidewalks; and (8) care, custody, or control of animals. 42 Pa. C.S. §
8542(b). “[B]ecause of the [Tort Claims Act’s] clear intent to insulate government from exposure
to tort liability, the exceptions to governmental immunity are to be strictly construed.” Lockwood
v. City of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000) (citing Kiley, 645 A.2d at 185-86). To satisfy
one of the exceptions, a plaintiff must also establish that “[t]he damages would be recoverable under
common law or a statute creating a cause of action if the injury were caused by a person not having
available a defense under section 8541 (relating to governmental immunity generally) or section

8546 (relating to defense of official immunity).” Id. § 8542(a)(1).
Plaintiff’s trespass claim is clearly barred. “The Tort Claims Act . . . renders the city
immune from claims based on willful or malicious conduct. It waives governmental immunity only
with respect to ‘negligent acts,’ and specifically declares that negligent acts do not include willful
or malicious conduct.” Win & Son, 162 F. Supp. 3d at 466–67 (quoting Lory v. City of
Philadelphia, 674 A.2d 673, 675 (Pa. 1996)). Trespass is an intentional tort to “the extent deliberate
conduct is averred,” and to the extent that the claim avers mistaken conduct, it does not fall within
an exception to governmental immunity for negligence. Id. (quoting Roehrig v. Twp. of Cass, No.
1144 C.D. 2014, 2015 WL 5478354, at *4 (Pa. Commw. Ct. Aug. 18, 2015). The City is therefore
immune from these claims.
As to Plaintiff’s negligent demolition claim, Plaintiff argues that this case falls into the
enumerated exception for claims arising out of the “care, custody and control of real property.” 42
Pa. Cons. Stat. § 8542(b)(2). This exception, however, “is a narrow exception and, by its own terms,
refers only to injuries arising out of the care, custody or control of the real property in the possession

of the political subdivision or its employees.” Mascaro v. Youth Study Ctr, 523 A.2d 1118, 1123
(Pa. 1987). For the exception to apply, the municipality’s actions must have made “the property
unsafe for the activities for which it is regularly used, for which it is intended to be used, or for
which it may reasonably be foreseen to be used.” Id. at 1124; Williams v. Phila. Hous. Auth., 873
A.2d 81, 86 (Pa. Commw. Ct. 2005) (holding that the City’s “negligence must make the real property
itself unsafe for its intended use” and that “dangerous condition or defect in the real estate” must
cause the injury).
The Court in Johnson v. City of Philadelphia, No. 19-cv-1591, 2020 WL 2933853 (E.D.Pa.
June 3, 2020) considered the viability of a tort claim that the city negligently demolished the

plaintiff’s property without proper notice. Id. at *5–6. The Court found that none of the
requirements of the real property exception to the Tort Claims Act were satisfied. Id. at *6. First,
the Court determined that the City of Philadelphia did not execute “care, custody, or control” over
the property during the L&I inspector’s inspections because the inspector’s temporary occupation
of the property did not constitute “possession” of the property. Id. (citing City of Pittsburgh v.
Estate of Stahlman, 677 A.2d 384, 387 (Pa. Commw. Ct. 1996) (noting that “mere occupation of the
property for a limited period of time” does not amount to possession)). Moreover, the Court
remarked that the plaintiff’s alleged injury was not caused by a property defect, but rather by the
City’s alleged failure to properly investigate or provide notice. Id.
Other cases have reached similar conclusions. See, e.g., Win & Son, 162 F. Supp. 3d at 466
(granting summary judgment in favor of City on negligent demolition claim, holding that “[t]he only
dangerous condition here was the product of Plaintiffs’ neglect of the property. In no sense can it
be said that such conduction arose from the City’s brief involvement with the property, all of which
was intended to ameliorate a public threat. Application of the real property exception to these facts
would create an absurd and anomalous result.”); Guy v. Bristol Borough, No. 16-cv-1557, 2018 WL

3141429, at *8 (E.D. Pa. June 27, 2018) (finding that negligent demolition claim against
municipality did not fall within any of the Tort Claims Act’s exceptions).7
As no exception under the Tort Claims Act applies to either of Plaintiff’s tort claims, I will
grant summary judgment on them in favor of Defendants.
C. Claims Against Defendants Kenney and Perri
Finally, Defendants seek summary judgment in their favor on all claims against Mayor
Kenney and L&I Commissioner Perri. Plaintiff sues these defendants in their official capacities
only. (Compl. ¶¶ 3–4.)
“A suit against a city official named in his or her official capacity is a suit against the entity

he or she represents.” Estate of Tyler ex rel. Floyd v. Grossman, 108 F. Supp. 3d 279, 289 (E.D.
Pa. 2015) (citing Hafer v. Melo, 502 U.S. 21, 217 (1991) (“State officers sued for damages in their
official capacity are not ‘persons’ for purposes of the suit because they assume the identity of the

7 Plaintiff’s cited cases do not support her contention that a negligent demolition claims falls
within the real property exception to the Tort Claims Act. In Oliver-Smith v. City of Philadelphia,
962 A.2d 728 (Pa. Commw. 2008), the Pennsylvania Commonwealth Court considered the propriety
of a jury instruction on damages in a case in which the jury found the City liable on a negligent
demolition claim. Id. at 730–31. Nothing in that decision addressed whether a negligent demolition
claim falls within one of the Tort Claims Act’s exceptions.
Plaintiff also cites Pivirotto v. City of Pittsburgh, 528 A.2d 125 (Pa. 1987). The claims in
that case, however, pre-dated the Tort Claims Act and, therefore, the court did not discuss
governmental immunity under the Tort Claims Act.
government that employs them.”)). This principle holds true for suits against the Mayor of
Philadelphia in his/her official capacity, Kennedy v. City of Phila., No. 19-cv-1076, 2019 WL
1651606, at *3 (E.D. Pa. 2019), and against the Commissioner of L&I. Kovalev v. City of Phila.,
No. 07-cv-4875, 2008 WL 783564, at *2 (E.D. Pa. Mar. 25, 2008). To the extent claims against
the entity are dismissed, the official capacity claims must also be dismissed. Estate of Tyler, 108 F.
Supp. 3d at 289.

Plaintiff brings only official capacity claims against Mayor Kenney and L&I Commissioner
Perri. Having granted summary judgment in favor of the City on all claims, I will likewise grant
summary judgment in favor of Defendants Kenney and Perri on all claims against them.
IV. CONCLUSION
For all of the foregoing reasons, Defendants Motion for Summary Judgment will be granted
in its entirety. An appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401075. Public record. Not legal advice.