# The Estate of Winifred Klee v. City of Scranton

> District Court, M.D. Pennsylvania · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10407789

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
THE ESTATE OF WINIFRED KLEE, :
KELLY KLEE-MEDICI,
Administratrix, and KELLY : CIVIL ACTION NO. 3:18-1961
KLEE-MEDICI and KIMBERLY
KLEE-RODRIGUES, as Individual : (JUDGE MANNION)
Heirs to the Estate of Winifred
Klee, :
Plaintiffs :
v. :

THE CITY OF SCRANTON and :
PATRICK HINTON,
:
Defendants
:
MEMORANDUM
Pending before the court is the defendants’ motion to dismiss the
plaintiffs’ complaint. (Doc. 7). Upon review, the defendants’ motion will be
granted in part and denied in part as discussed below.
The defendants’ motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a claim
to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) (abrogating “no set of facts” language found in Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to “raise a
right to relief above the speculative level.” Twombly, 550 U.S. 544. This
requirement “calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of’ necessary elements of the plaintiff's cause
of action. Id. Furthermore, in order to satisfy federal pleading requirements,
the plaintiff must “provide the grounds of his entitlement to relief,” which
“requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting
Twombly, 550 U.S. 544).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document{[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat'l

Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court
may not rely on other parts of the record in determining a motion to dismiss.
See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
The instant action arises from the demolition of real property located at
Rear 823 Moosic Street in Scranton, Lackawanna County, Pennsylvania, by
the City of Scranton. On May 4, 2011, the property was condemned by the City
of Scranton and notice of the condemnation was both provided to the property
owner and posted on the property.’ On May 2, 2016, notice of the demolition

‘The court notes that this fact is included, not in the plaintiffs’ complaint,
but in the defendants’ brief in support of their motion to dismiss the complaint.
However, in their opposing brief, the plaintiffs “accept the statement of facts
as set forth in Defendant’s motion and brief.” (Doc. 15-1, p. 1). (As the
plaintiffs have failed to paginate their filings, the pages referenced are those
of the CM-ECF filing system.) Therefore, the allegations of the plaintiffs’
complaint are supplemented by the facts set forth in the defendants’
(continued...)

of the property was provided to the owner and posted on the property. Winifred
Klee, the property owner, died on October 11, 2017. The property was later
demolished in or about July of 2018.2

The plaintiffs’ complaint alleges that, after the death of Winifred Klee,
they became the equitable owners of the property and they took the
appropriate actions to file the estate of Winifred Klee with the Lackawanna
County Register of Wills and likewise advertised the estate giving notice to any
parties with claims against the estate and of the estate’s and heir’s equitable
interest in the estate. Irrespective of the estate being filed and public

advertisement of the estate, the plaintiffs allege the City of Scranton
demolished the property without notifying them or counsel for the estate and
without providing the plaintiffs with the opportunity to exercise their due
process rights. In so doing, the plaintiffs allege that the defendants entered
on the property without probable cause; entered on the property without

notice, consent, or the benefit of a search warrant and authorized contractors,
agents and servants to enter on the property without having given the plaintiffs

1(...continued)
supporting brief which are admitted by the plaintiffs.
2There is a factual dispute as to the date of demolition with the plaintiffs
indicating that it occurred in July of 2018 and the defendants indicating that
it occurred on June 22, 2018. The court accepts the allegations of the
plaintiff’s complaint as true for purposes of the instant motion. However, at
this point, the date of demolition is immaterial.
4
an opportunity exercise their due process rights; demolished the premises
without probable cause or jurisdiction over the equitable owners; established
a lien against the remainder of the property and against the equitable owners

without probable cause or jurisdiction; demolished the premises without notice
to the plaintiffs so as to allow for the exercise of their due process rights;
demolished the property without performing a title search or investigating the
public records as required by Keller v. The City of Scranton, as well as City
policy as established after Keller; and demolished the property while being on
notice of the equitable ownership of the estate and heirs of Winifred Klee.

The plaintiffs allege that the defendants acted pursuant to a specific
design, plan and policy to substitute the criteria of the Keller requirements,
ordinances, policies and code of the defendant with the discretion, criteria and
will of the defendants and the arbitrary investigation, inspection, adjudication
and demolition of the premises in violation of the plaintiffs’ due process rights.

The plaintiffs further allege that the actions of the defendants were done
pursuant to and consistent with a pattern and practice of the defendants and
were done as a result of the lack of training and expertise of the defendants.
According to the plaintiffs, the actions of the defendants were reckless,
intentional and done with indifference to the plaintiffs’ rights to the property

and the right to be free from interference and from arbitrary, capricious,
irrational inspections, seizure and demolition of their property and due process
5
rights.
As a result of the defendants’ actions, the plaintiffs allege that they were
deprived of the value of the property, potential right to income from the

property, embarrassment, humiliation and emotional distress. The plaintiffs are
seeking compensatory and punitive damages.3
In their pending motion, the defendants initially argue that the plaintiffs’
Fourth Amendment claim should be dismissed because the plaintiffs have
failed to provide sufficient factual allegations to indicate that any search and/or
seizure of the property was unreasonable. In response, after setting forth the

law applicable to Fourth Amendment claims, the plaintiffs argue,
For the Purposes of the Motion at hand, Plaintiffs submit that the
cause of action is a viable cause of action and dismissal should be
denied.
(Doc. 15-1, p.6). However, the plaintiffs’ response goes on to provide,
The Fourth Amendment secures against “arbitrary invasions
by governmental officials.” Camara, 387 U.S. at 528. Far from
acting arbitrarily in this case, the City followed the published
procedures set forth in its City Property Maintenance Code
and acted reasonably under the circumstances. The seizure
of the structure did not run afoul of the Fourth Amendment.
Therefore, the Defendant has clearly pointed to an absence of
genuine issue of material fact as to Plaintiff’s §1983 claim
grounded in the Fourth Amendment. Id.
(Id.) (emphasis added). Thus, although the plaintiffs argue in a conclusory
3Despite titling their pleading as a “Complaint in Declaratory Relief,” the
plaintiffs do not request any declaratory relief.
6
manner at one point in their brief that their Fourth Amendment claim should
be allowed to proceed, they then inexplicably concede that the defendants
acted reasonably in their seizure of the property.4 Because of the

inconsistency of the plaintiffs’ brief, it is unclear exactly what position they are
taking on this claim. Regardless, allegations strikingly similar to those set forth
by the plaintiffs in this case have been found to be sufficient to support a
Fourth Amendment claim for purposes of a motion to dismiss. See Keller v.
City of Scranton, 2010 WL 2104665, *2 (M.D.Pa. May 24, 2010) (“Keller I”). As
such, at this point in the proceedings, the court will allow the plaintiffs to

proceed with their Fourth Amendment claim and the defendant’s motion to
dismiss on this basis will be denied.
As to the plaintiffs’ procedural due process claim under the Fourteenth
Amendment claim, the defendants argue that notice of the demolition was
constitutionally effective to the owner of the property in that notice of the

demolition was sent by both regular and certified mail to the address provided
by the owner to Lackawanna County for the payment of property taxes. In
addition, the defendants provide that notice was conspicuously posted on the

4The court notes that, in addition to this inconsistency, the plaintiffs’
opposing brief has a number of other inconsistencies, errors and otherwise
unexplainable statements making the court believe that the plaintiffs are
pulling language from other sources and not tailoring their arguments to the
specific facts of this case. The plaintiffs are cautioned for future reference to
carefully screen their filings before submitting them to the court.
7
property.
In Pivirotto v. City of Pittsburgh, 528 A.2d 125 (Pa. 1987), the defendant-
city condemned and demolished a property after the plaintiff had purchased
it at a tax sale. The defendant did not provide the plaintiff actual notice of the
demolition. In Pivirotto, the court stated that those responsible for
condemnation and demolition had ready access to the fact that the property
was the subject of a tax sale and that city officials should expect that
properties with housing code violations might also be subject to tax sales due
to delinquency and that persons in addition to the owners indicated in the deed
registry might have ownership interest in the properties. The Pivirotto court
held,
It is not unreasonable to expect the bureau to ascertain whether
properties have been sold, and then to make contact with the city
treasurer's office to ascertain the identity of the purchaser at the
tax sale. Failing this, the city is liable to purchasers at tax sales
when properties sold by the city are demolished without actual
notice to the purchaser.
Pivirotto, 528 A.2d at 129.
In Keller v. City of Scranton, 2013 WL 1681 524 (M.D.Pa. Apr. 17, 2013)
(“Keller II”), the court noted that, although Pivirotto was an action for negligent
demolition, which is not a constitutional issue, because the plaintiff had not
received actual notice of the demolition, he was deprived of an opportunity to
cure the housing defects to prevent the property's demolition. Further, the

Keller Il court noted the court’s observation in Pivirotto that “[a]lthough the
matter sub judice involves a condemnation notice and not a tax sale notice,
both situations involve governmental taking of private property and the same
safeguards apply.” Pivirotto, 528 A.2d at 129. The court in Keller Il assumed
under Pivirotto’s general holding that there was a requirement for the
defendants to have checked the publicly available records to determine
whether there had been any intervening ownership changes given the time
gap between the time the property was scheduled for demolition and the time
of its actual demolition and urged the defendants and the City of Scranton to
“abide by the strictures of Pivirotto when sending notices of condemnation and
demolition and avail themselves of the publicly accessible records to locate
persons with ownership interests in properties.”
In this case, the defendants argue that notice of the demolition was sent
by both regular and certified mail on May 2, 2016, to the address provided by
the owner to Lackawanna County for payment of property taxes and was
posted on the property. However, the actual demolition did not take place until
either June or July of 2018. Under Pivirotto and the admonition in Keller Il,
because of the time gap between the original notice and the actual demolition,
the defendants should have attempted to search publicly accessible records
to determine whether there was a change in ownership interest in the property.
Moreover, although the defendants argue that Pivirotto is distinguishable

because the case did not analyze the law as it relates to the Constitution, but
rather involved a matter of state law, as discussed earlier, regardless, the
circumstances in Pivirotto, Keller and the instant matter all involved

governmental taking of private property and the same safeguards apply. Keller
II, 2013 WL 1681524 (citing Pivirotto, 528 A.2d at 129). Further, the
defendants’ argument that the current matter presents a change in ownership
due to death rather than a tax sale is of no moment, as the fact is that the
ownership changed hands in the intervening two year period between the
original notice of demolition and the actual demolition. For all these reasons,

the defendants’ motion to dismiss the plaintiffs’ Fourteenth Amendment
procedural due process claim will be denied.
Next, the defendants argue that the plaintiffs’ municipal liability claim
should be dismissed as the plaintiffs have failed to allege sufficient facts to
support their claim. The defendants argue that the plaintiffs have alleged in a

conclusory fashion that defendant Hinton acted pursuant to a “specific design,
plan and policy to substitute” his own discretion for the criteria required by
federal law and City code, ordinances and policy, and that as such, defendant
Hinton’s activities violated established City policies and legal precedent. The
plaintiffs further allege that the defendants’ actions were “done pursuant to and

consistent with a pattern and practice” of both defendant Hinton and the City
of Scranton. The defendants argue that these allegations are insufficient to
10
support a municipal liability claim.
Again, strikingly similar allegations were set forth in Keller I and the
defendants sought to have the municipal liability claim dismissed. There, the

court stated,
There are three (3) instances when the constitutional
tort of a municipal employee satisfies the
requirements of Monell [v. Dep’t of Soc. Servs., 436
U.S. 658 (1978)]. First, a municipality is liable when its
employee acts pursuant to formal government policy
or standard operating procedure long accepted within
the government entity. Second, a municipality is liable
for the actions of an employee when the employee
has final policy-making authority, rendering his
behavior an act of government policy. Finally, a
municipality is liable for the actions of its employee
when an official with authority has ratified the
unconstitutional actions of the subordinate, rendering
the action official. None of these three instances are
alleged here. First, Plaintiff alleges that [defendants]
substituted their own policies and discretion for the
policies of Scranton. Second, Plaintiff does not allege
that either [defendant] is a final policy-maker for
Scranton. Because Plaintiff fails to allege a policy of
Scranton caused his injuries, Defendants’ motion to
dismiss all claims against Scranton will be granted.
Keller I, 2010 WL 2104665, at *3 (citations omitted).
The plaintiffs have made no substantive argument in their opposing brief
as to how their allegations establish a municipal liability claim, but essentially
argue only that the City failed to follow the law. The allegations made in the
instant action are essentially those made in Keller I and the court in that case
found the allegations failed to state a claim for municipal liability. So too here,
11
the court finds that the plaintiff’s allegations fail to state a claim for municipal
liability and will grant the defendants’ motion to dismiss the municipal liability
claim against the City of Scranton.

Next, the defendants argue that the plaintiffs’ request for punitive
damages should be dismissed as against the City of Scranton and defendant
Hinton in his official capacity. The plaintiff does not challenge this argument
and the court finds that it is supported by the law set forth in the defendants’
brief. Therefore, any request for punitive damages against the City of Scranton
or defendant Hinton in his official capacity will be dismissed.

The defendants also argue, however, that any request for punitive
damages against defendant Hinton in his individual capacity should be
dismissed. Here, the court does not agree. Punitive damages are available in
a §1983 action where a public official acting in an individual capacity displays
conduct which is “shown to be motivated by evil motive or intent, or when it

involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983). For purposes of the instant
motion, the court finds that the plaintiffs have alleged sufficient facts to request
punitive damages. Whether the plaintiffs can support their request at later
stages of this action is yet to be determined. However, at this early stage, the

court will allow the request for punitive damages to proceed against defendant
Hinton in his individual capacity.
12
The defendants further argue that the plaintiffs’ claims are barred by the
Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541, et seq. However, the
PSTCA does not protect state entities from federal claims. See Wade v. City
of Pittsburgh, 765 F.2d 405, 407 (3d Cir.1985). As such, the defendants’
motion to dismiss will be denied on this basis.
Finally, the defendants argue that the court should dismiss any claims
against defendant Hinton based upon qualified immunity. The defendants
argue that the court in Keller Il granted qualified immunity to the individual
defendants noting that the law was unclear whether municipalities were
required to conduct a record search to determine whether there had been any
intervening changes in property ownership. Even if the finding of Keller II still
applies today, which is a matter the court will allow the plaintiff to address on
summary judgment, the plaintiff still has remaining a Fourth Amendment claim
for which the defendants have not addressed the issue of qualified immunity.
Therefore, the defendants’ motion to dismiss will be denied to the extent they
argue that defendant Hinton is entitled to qualified immunity.
In light of the foregoing, the defendants’ motion to dismiss will be
granted in part and denied in part. It will be granted as to the municipal liability
claim against the City of Scranton and the request for punitive damages
against the City of Scranton and defendant Hinton in his official capacity. It will
be denied with respect to the plaintiffs’ Fourth and Fourteenth Amendment

13

claims against defendant Hinton in his individual capacity. It will further be
denied to the extent the defendants argue that the plaintiffs’ claims are barred
by the Political Subdivision Tort Claims Act and to the extent the defendants

argue that defendant Hinton is entitled to qualified immunity. An appropriate
order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 30, 2019
18-1961-01.wpd

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407789. Public record. Not legal advice.