Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

708-710 MARKET ST, LLC, No. 4:25-CV-00597

Plaintiff, (Chief Judge Brann)

v.

BOROUGH OF BERWICK and

NICOLL OLIVER,

Defendants.

MEMORANDUM OPINION

DECEMBER 30, 2025

I. BACKGROUND

On June 23, 2025, Plaintiff 708-710 Market St, LLC (“Plaintiff”), filed a

three-count amended complaint against the Borough of Berwick (“Borough”) and

Nicoll Oliver (“Oliver”) (collectively, “Defendants”).1

On July 15, 2025, Defendant Borough filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.2 The motion is

now ripe for disposition; for the reasons that follow, it is granted. However, Plaintiff

will be provided leave to amend the complaint.

1 Doc. 19 (Amend. Compl.). Plaintiff filed this amended complaint by consent.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly3 and

Ashcroft v. Iqbal,4 “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”5 The United States Court of Appeals for the Third Circuit has instructed

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”6

When deciding a motion to dismiss, a court generally considers only the

allegations in the complaint, exhibits attached thereto, and facts of public record.7

Normally, to consider anything beyond those sources, a motion to dismiss must be

3 550 U.S. 544 (2007).

4 556 U.S. 662 (2009).

5 Id. at 678 (quoting Twombly, 550 U.S. at 570).

6 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

7 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

converted to a motion for summary judgment.8 But consideration of materials

outside the complaint is not completely barred on a Rule 12(b)(6) motion. Courts

may consider any documents that are integral or explicitly relied upon in the

complaint.9 “However, before materials outside the record may become the basis

for a dismissal, several conditions must be met.”10 “For example, even if a document

is ‘integral’ to the complaint, it must be clear on the record that no dispute exists

regarding the authenticity or accuracy of the document.”11 It must also be clear that

there exists no material disputed issues of fact regarding the relevance of the

document.12

In this matter, the Court finds that these conditions have been met for several

documents, and will consequently consider the exhibits attached to Plaintiff’s

complaint, including the notices, as they appear to be integral to the complaint and

Defendant Borough has submitted identical notices.13 The Court will also take

judicial notice of the International Property Maintenance Code (“IPMC”) at large,

8 See FED. R. CIV. P. 12(d).

9 Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

10 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

11 Id.; see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy, Inc.

v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

12 Faulkner, 463 F.3d at 134.

13 See Doc. 19-1 (Exhibit A); Doc. 26-2; Doc. 19-3 (Exhibit C); Doc. 26-5; Doc. 19-4 (Exhibit

D); Doc. 26-8; Doc. 19-5 (Exhibit E); Doc. 26-7.

as adopted by the Borough with amendments,14 as it is a publicly available code.15

The Court will not consider Defendant’s other submissions to avoid turning the

instant motion into a summary judgment determination.

B. Facts Alleged in the Amended Complaint

The facts alleged in the amended complaint, which this Court must accept as

true for the purposes of this motion, are as follows.

The Plaintiff limited liability company owns real estate, namely a duplex,

located at 708-710 Market Street, Berwick, Columbia County, Pennsylvania 18603

(“the Property”).16 The managing member of the LLC, James Daubert (“Daubert”)

has owned the property since April 2024, with Daubert residing in one unit and his

family members residing in the second unit.17

The Borough followed an amended version of the IPMC, adopted in whole

with some amendments laid out in Ordinance No. 2023-02 (“Ordinance 02”) and

Ordinance No. 2024-05 (“Ordinance 05”) (collectively, “the Ordinances”). These

three policies provide that condemnation procedure in the Borough should be as

follows. A “code official” shall be appointed to enforce the standards in the code,

with authority to interpret and adopt policies in line with the intent and purpose of

14 Doc. 19-1 (Exhibit A) (adopting the IPMC in whole with only the amendments laid out in this

exhibit).

15 2018 International Property Maintenance Code (“IPMC”),

https://codes.iccsafe.org/content/IPMC2018P2/chapter-1-scope-and-administration.

16 Doc. 19 at ¶ 7.

17 Id. at ¶¶ 8-11.

the code.18 This official “shall make all of the required inspections,” and has

authority to make inspections at reasonable times with notice requirements.19

“[W]henever the code official determines that there has been a violation of this code

or has grounds to believe that a violation has occurred, notice shall be given.”20 “Any

person failing to comply with notice of violation or order served . . . shall be deemed

guilty of a summary offense or civil infranction . . . [and if] the notice of violation is

not complied with, the code official shall institute the appropriate proceeding.”21 The

IPMC provides that, “[u]pon failure of the owner . . . to comply with the notice

provisions within the time given, the code official shall post on the premises . . . a

placard bearing the word “Condemned.”22 Ordinance 05 allows for “removal of a

condemnation placard” from a property only when “it has been satisfactorily

demonstrated to the code official” that the building no longer has any defects

warranting condemnation.23 The IPMC also sets out a variety of standards for

property maintenance, some of which are amended or re-enumerated in Ordinance

02.24

On or about October 22, 2024, Code Official Oliver issued a Notice of

Violation letter to Plaintiff and its occupants, which advised that the defects on the

18 IPMC 103.2, Appointment; IPMC 104.1, General.

19 IPMC 104.2, Inspections; IPMC 104.3, Right of Entry.

20 Doc. 19-1 (Exhibit A, Ord. 02) at 3.

21 Id.

22 IPMC 108.4, Placarding. This section was adopted unamended by the Ordinances.

23 Id. at ¶¶ 12-13, Doc. 19-2 (Exhibit B).

24 Doc. 19-1.

property would result in the property being condemned and declared unfit for human

habitation unless brought into compliance by November 22, 2024.25 This letter was

not received by occupants until November 1, 2024.26 The violations alleged in this

letter were “a) presence of garbage and rubbish around the Property; b) disrepair of

the roof; c) disrepair of the gutters; and d) over occupancy exceeding the allowed

capacity.”27 This letter required an inspection by a Borough official to lift the

condemnation, with such inspection to be scheduled by Plaintiff, and advised

Plaintiff of the right to appeal the decision to the Code Appeals Board before the

compliance date within twenty days of the decision.28

Before the compliance date, Plaintiff replaced a portion of the roof, removed

the gutters, organized the yard “since there was no garbage or rubbish, as those terms

are defined by the IPMC,” and confirmed the property’s residents were within the

occupancy limit.29

On the compliance date of November 22, Oliver came with another code

official for the Borough and two police officers to advise the occupants that the

building was condemned. 30 Daubert informed the officials that the issues had been

addressed, but the officials still ordered them to vacate the premises.31 The officials

25 Id. at ¶ 14.

26 Id. at ¶ 16.

27 Id. at ¶ 14; Doc. 19-3 (Exhibit C) at 2.

28 Doc. 19-3 at 2.

29 Doc. 19 at ¶ 18.

30 Doc. 19 at ¶ 19.

31 Id. at ¶¶ 19-20.

condemned the Property by placing condemnation placards.32 Plaintiff avers that

Defendants did not ever conduct an interior inspection of the Property.33

On December 13, 2024, Oliver issued another notice of violation for the same

four defects, and informed Plaintiff that, if Plaintiff disagreed with the determination

that the roof must be replaced entirely, it should submit a written report from a

licensed structural engineer.34 On the same day, Oliver issued another violation

notice to Plaintiff because the natural gas utility was shut off to the property, despite

the Property having electric heaters.35 Again, this notice contained a provision

allowing for appeal.36 Three days later, Plaintiff restored the flow of natural gas and

had an inspector inspect the roof repairs.37

C. Analysis

Plaintiff brings three counts against both Defendants, all under 42 U.S.C

§ 1983; the first and second counts claim deprivation of procedural and substantive

due process rights afforded by the Fourteenth Amendment while the third claims

unlawful seizure in violation of the Fourth Amendment.38 While Plaintiff has styled

the second count as a Monell violation, it is well established that the only avenue to

32 Id. at ¶ 21.

33 Id. at ¶ 30.

34 Id. at ¶ 22.

35 Id. at ¶¶ 23-25.

36 Doc. 19-5 (Exhibit E) at 2.

37 Id. at ¶¶ 26-27.

38 Id. at 7, 10, 12.

sue a municipality under § 1983 is through Monell’s framework.39 “For this reason,

the Court will address Plaintiffs’ claims against [the Borough] in Counts I and [III]

as attempting to state a Monell claim against [the Borough].”40

Notably, only Defendant Borough moved to dismiss the action; parties seem

to be in agreement that Defendant Oliver has made no such motion.41 Accordingly,

the Court will only address the claims as to the Borough of Berwick, and not those

against Defendant Oliver.

A Monell claim can take the form of four avenues;42 the one relevant here, as

it is the one Plaintiff advances, is that of a formal policy officially promulgated or

adopted by a municipality. Plaintiffs that proceed under a municipal policy theory

must demonstrate “the existence of ‘an unconstitutional municipal policy’ in order

to prevail.”43 Additionally, “to prevail on a Monell claim, it is not enough to simply

39 Arcuri v. Cnty. Of Montgomery, No. 20-5408, 2021 WL 1811576, at *6 n. 11 (E.D. Pa. May

6, 2011) (“Monell provides the only mechanism to state a claim under Section 1983 against

municipal entities”); Monell v. Dept. of Social Servs. Of City of New York, 436 U.S. 658, 694-

95 (1978).

40 Arcuri, 2021 WL 1811576, at *6 n.11.

41 Doc. 21 (Mot. to Dismiss) at 1 (requesting only “the dismissal of the action against the Borough

of Berwick”); at ¶ 7 (“Defendants move to dismiss Plaintiff’s Complaint, against the Borough

only.”); Doc. 31 (Br. in Opp.) at 8 (“[T]he Code Official has not filed a motion to dismiss the

claims of constitutional violations asserted by the LLC.”).

42 DeRaffele v. City of Williamsport, 4:15-CV-02186, 2018 WL 2086074, at *2 (M.D. Pa. May

4, 2018) (Brann, J.). The avenues include 1) existence of a formal policy; 2) officials

responsible for establishing final policy making a deliberate, specific decision; 3) custom or

usage that is so widespread as to imply the constructive acquiescence of policymaking

officials; or 4) claim of failure to train or supervise when it amounts to deliberate indifference.

Id.

43 Biondino v. Bucks Cnty. Technical Sch. Auth., No. 24-1252, 2025 WL 2423736, at *3 (E.D.

Pa. Aug. 21, 2025) (quoting Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019)).

prove the existence of an unconstitutional policy; that policy must also be shown to

be the ‘proximate cause’ of the plaintiff's injuries.”44 Moreover, “in order for

municipal liability to exist, there must still be a violation of the plaintiff’s

constitutional rights.”45 In sum, to state a claim under Monell, a plaintiff must

establish:

(1) the municipality had a policy or custom that deprived the plaintiff of his

constitutional rights; (2) the municipality acted deliberately and was the

moving force behind the deprivation; and (3) the plaintiff's injuries were

caused by the identified policy or custom.46

Plaintiff argues that the Borough’s adoption of the IPMC and accompanying

Ordinances is the formal policy at issue that led to alleged constitutional violations.47

44 Id.

45 DeRaffele, 2018 WL 2086074, at *2; Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006).

46 Ekwunife v. City of Philadelphia, 245 F. Supp. 3d 660, 674 (E.D. Pa. 2017) (citing Monell, 436

U.S. at 692-94.

47 Doc. 31 (Br. in Opp.) at 8, 10. While Plaintiff’s complaint contains a scattershot of theories of

liability, one of which is the failure to train employees in “constitutionally compliant

enforcement of housing and property codes,” see Doc. 19 ¶ 40(e), Plaintiff seems to explicitly

abandon that theory in its brief. See Doc. 31 at 8 (“The adoption of section 108.1 by the

Borough is the act that gave rise the constitutional violations committed that the Code Officer

in this case”); at 9 (“The Borough did not merely fail to supervise a rogue employee; it codified

the very discretion that led to the deprivation.”); at 9-10 (“Unlike the ‘failure-to-train’ claim in

[Connick], this case involves an official ordinance that itself caused the deprivation — no

pattern of prior violations is required”).

Policy or custom theories are separate and distinct from failure or inadequacy theories, with

different showings required for each. Forrest, 930 F.3d at 105. In brief, parties conflate the

two, referencing cases and standards relevant only for the failure to act theory of liability, such

as the deliberate indifference framework. See Doc. 21 at 9; Doc. 25 at 2, 5; Carter v. City of

Phila., 181 F.3d 339, 357 (3d Cir. 1999) (“Where, as here, the policy in question concerns a

failure to train or supervise municipal employees, liability under section 1983 requires a

showing that the failure amounts to ‘deliberate indifference.’”) (emphasis added). As Plaintiff

has repeatedly pointed to the IPMC as the official policy leading to its alleged constitutional

violations, and as this policy is the basis for almost all of its arguments, the Court will address

only the policy theory of liability and decline to analyze the failure to act or train theory.

Plaintiff argues first that the Bourgh’s policy allowing a Code Official to condemn

property without inspection or pre-deprivation hearing violated Plaintiff’s right to

procedural due process.48 Plaintiff argues second that this same process amounted to

an unreasonable seizure of the Property.49 I will address each argument in turn.

1. The Fourteenth Amendment’s Right to Procedural Due

Process

Plaintiff first argues that its rights to procedural due process as guaranteed by

the Fourteenth Amendment were violated because the Borough Code Official,

Oliver, did not, and was not required to, 1) inspect the house and 2) give Plaintiff an

opportunity for a hearing.

For this claim, Plaintiff’s chosen avenue to a Monell claim is to point to the

adoption of the IPMC as the formal policy it alleges deprived him of procedural due

process. Plaintiff alleges that, by allowing for condemnation of its property but not

providing for a pre-deprivation hearing, the Borough’s official policy did not provide

sufficient due process. As the issue for this claim would be the official Borough

policy or procedure, namely the IPMC and Ordinances, Plaintiff does appear to point

to a policy that it alleges is the proximate cause of its deprivation, satisfying the

Monell requirement.

However, even from a cursory review, the complaint seems woefully deficient of any facts

tending to support a failure to act theory of liability in this case, especially facts demonstrating

deliberate indifference.

48 Doc. 31 at 8-11.

49 Doc. 31 at 8.

However, Plaintiff has not adequately pled that this policy is unconstitutional

or deprived him of due process. “The Fourteenth Amendment prohibits a state from

‘depriv[ing] any person of life, liberty, or property, without due process of law.’”50

This has been interpreted to require, fundamentally, an “opportunity to be heard,”

conducted at a “meaningful time in a meaningful manner.”51 Typically, “the hearing

should come before the Government deprives a person of his property.”52 However,

“[w]here there is ‘the necessity of quick action by the State,’ or where ‘providing

any meaningful predeprivation process’ would be impractical, the Government is

relieved of the usual obligation to provide a predeprivation hearing.”53 Therefore,

courts must determine first “whether the Town was faced with circumstances in

which it was required to provide a predeprivation hearing,” and, if it did, then

secondly whether “[the Borough] made adequate postdeprivation procedures

available to [Plaintiff].”54

The Court need not delve into either inquiry, because Plaintiff failed to avail

itself of the process available to it. In Elsmere Park Club, L.P. v. Town of Elsmere,

50 Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008) (quoting U.S.

Const. amend. XIV, § 1).

51 Armstrong v. Manzo, 380 U.S. 545, 552 (1965)

52 Elsmere, 542 F.3d at 417.

53 Id. (quoting Parratt v. Taylor, 451 U.S. 527, 539 (1981).

54 Id. In determining the first inquiry, that of whether an emergency applied to justify no

predeprivation process, courts apply the deferential standard of “whether there is competent

evidence supporting the reasonable belief that the situation presents an emergency and whether

the defendant's actions are otherwise arbitrary or an abuse of discretion.” Atkins v. Borough of

Pheonixville, 336 F. Supp. 3d 511, 517 (E.D. Pa. 2018) (quotation from Elsmere, 542 F.3d at

417 omitted).

the Third Circuit explained that, when an alleged constitutional injury is the failure

to provide adequate process, “no such injury could have occurred where [Plaintiff]

has failed to take advantage of the procedures actually offered, at least not absent a

showing that the process offered was ‘patently inadequate.’”55 This is because,

unlike a takings claim where the injury occurs the moment property is seized, “a

procedural due process violation does not occur until or unless the plaintiff has been

deprived of adequate process.”56 “‘A state cannot be held to have violated due

process requirements when it has made procedural protection available and the

plaintiff has simply refused to avail himself of them.’”57 “If there is a process on the

books that appears to provide due process, the plaintiff cannot skip that process and

use the federal courts as a means to get back what he wants.”58 This is distinguishable

55 Elsmere, 542 F.3d at 423 (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). See also

Bolick v. Northeast Indus. Services Corp., No. 4:14-CV-409, 2015 WL 540066, at *5-6 (M.D.

Pa. Feb 10, 2015) (Brann, J.). To note, Bolick and similar other cases relied in part on the

Supreme Court’s rationale in the case Williamson County Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, which held that plaintiffs seeking remedies for unlawful takings must

avail themselves of process before suing in federal court. 473 U.S. 172, 195 (1985). Williamson

was overruled by Knick v. Township of Scott, Pa., which again addressed unlawful takings

claims, but the Court distinguished due process claims from the holding. 588 U.S. 180, 196

(2019). Courts interpreting this issue specifically under Knick have found that plaintiffs

pursuing procedural due process claims must still have availed themselves of the process to

have a cognizable claim. See Bruzga v. County of Boulder by and through Board of County

Commissioners, 795 F. App’x 599, 603 (10th Cir. 2020); Kessler v. City of Key West, No. 21-

11069, 2022 WL 590892, at *9-10 (11th Cir. 2022). While not explicitly analyzing Knick’s

effect on the matter, after the decision came down, the Third Circuit has continued to hold that

a plaintiff seeking remedy for procedural due process violations “must avail himself of that

process” before bringing a claim. See, e.g., Williams v. Krasner, No. 22-2984, 2023 WL

3773861, at *6 (3d Cir. June 2, 2023).

56 Bruzga, 795 F. App’x at 603; see also Butterline v. Bank of N.Y. Mellon Trust Co., Nat’l Ass’n,

841 F. App’x 461, 464 (3d Cir. 2020); Alvin, 227 F.3d at 116.

57 Alvin, 227 F.3d at 116 (quoting Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982).

58 Alvin, 227 F.3d at 116.

from exhaustion requirements; 59 such a deficiency fights in the arena of ripeness or

causation.60

Here, it appears that there were processes for Plaintiff to object to the

proceedings, processes that were available pre-deprivation. The notices attached to

Plaintiff’s complaint all advise Plaintiff that it had a right to appeal the decision to

the Code Appeals Board if filed within 20 days of the notice date, which would have

been before the date on which the defects were required to be remedied.61 Plaintiff

states that this opportunity is insufficient, but does not explain why that appellate

process is not the very “notice [and] meaningful opportunity to be heard” that it now

says was not provided.62

Put simply, Plaintiff has not focused its pleadings on the actual process

provided and its deficiencies as a constitutional matter. This is fatal given that the

claim is one of procedural due process as opposed to a claim under the takings

clause. Plaintiff pleads nothing about what steps it took, bureaucratically, to lift the

59 See id.; Elsmere, 542 F.3d at 423. There is no exhaustion requirement for § 1983 claims.

60 See also Williams v. City of Johnstown, No. 3:15-144, 2016 WL 1069100, at *6 (W.D. Pa.

Mar. 17, 2016) (“a federal claim for procedural due process is not ripe for review unless and

until a deprivation occurs pursuant to the procedures provided under the local or state code.”).

61 Doc. 19-3 (Exhibit C); Doc. 19-4 (Exhibit D). Exhibit E, the notice of condemnation for the

gas, would have been a post-deprivation hearing as the date for remedy was before the appellate

process would be invoked. Doc. 19-5. However, as the property was already condemned from

the other violations, the issue is moot. Moreover, the IPMC at large, in a provision unamended

by the Ordinances, stays enforcement of condemnation orders until an appeal is heard. IPMC,

111.8, Stays of Enforcement.

62 Doc. 31 at 11.

condemnation. Plaintiff pleads that it cleaned up the property,63 and had an engineer

inspect the roof,64 but, on the pleadings, seemingly never contacted the Borough

about these efforts nor reached out to schedule an inspection.65 At the very least,

Plaintiff has not pled facts from which the Court could conclude that the processes

available to it were “patently inadequate.”66 Indeed, the Court knows nothing about

this appellate process because Plaintiff has not explained it or its alleged

deficiencies.

Therefore, the claim as pled falls to the ground for Plaintiff’s failure to utilize

the process provided. Defendant’s motion to dismiss Plaintiff’s procedural due

process claims against the Borough is granted, and these claims are dismissed.

“The Federal Rules of Civil Procedure do not address the situation in which a

deficiency in a complaint could be cured by amendment but leave to amend is not

sought.”67 But the law in the Third Circuit is clear that leave to amend should be

“freely given” regardless of whether leave is specifically requested.68 Plaintiff will

63 Doc. 19 at ¶ 29.

64 Id. at ¶ 28.

65 Doc. 19 at ¶¶ 23-30. The notices advise that an inspection by a Borough Official will be

required before condemnation is listed and require the applicant to contact the Borough to

schedule such an inspection. Doc. 19-3. Plaintiff does not plead that it did so.

66 Alvin, 227 F.3d at 116.

67 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).

68 Id. (quoting Fed. R. Civ. P. 15(a)).

therefore be provided leave to amend this pleading to address any deficiencies in the

process provided to it by the Borough.69

2. The Fourth Amendment’s Right to be Free from

Unreasonable Search and Seizure

Plaintiff additionally claims that the condemnation of the Property, and the

order for occupants to vacate, was a violation of the Fourth Amendment’s right to

be free from unreasonable search and seizure.70

The Fourth Amendment provides that individuals shall not be subject to

“unreasonable searches and seizures.”71 The touchstone of reasonableness is “‘the

ultimate standard under the Fourth Amendment,’ which entails ‘a careful balancing

of governmental and private interests.’”72 Defendant does not contest that

condemning the property and ordering occupants to vacate is a seizure,73 and the

remaining inquiry is whether Plaintiff has shown such a seizure was unreasonable.74

69 Cf Para v. City of Scranton, No. 3:CV-06-2432, 2008 WL 2705538, at *14-15 (Pa. M.D. July

10, 2008) (where the plaintiff appealed but challenged the sufficiency of the appellate process,

as his building was demolished before the hearing).

70 Doc. 19 at 12. To note, neither Plaintiff nor Defendant analyzes the applicable law for the

Fourth Amendment claim. Should Plaintiff re-plead, parties are instructed to provide adequate

support and analysis for the disputed legal issues.

71 U.S. CONST. AMEND. IV.

72 Jaramillo v. City of Coatesville, No. 19-CV-4936, 2023 WL 5635640, at *8 (E.D. Pa. Aug. 31,

2023) (quoting Soldal v. Cook County, 506 U.S. 56, 61 (1992)).

73 See also Soldal, 506 U.S. at 61 (“We fail to see how being unceremoniously dispossessed of

one's home in the manner alleged to have occurred here can be viewed as anything but a seizure

invoking the protection of the Fourth Amendment.”).

74 Verdier v. Borough, 796 F. Supp. 2d 606, 619 (E.D. Pa. 2011); Duffy v. Kent Cnty Levy Ct.,

591 F. App’x 41, 45 (3d Cir. 2014); Deiter v. City of Wilkes-Barre, 2:16-CV-132, 2021 WL

2020589, at *14 (M.D. Pa. May 19, 2021) (denying summary judgment as the disputes went

to whether the seizure of Plaintiff’s property was reasonable).

Whether this seizure is reasonable is a tricker question. “Authority is sparse

on when it is reasonable for municipal officials to seize buildings based on concerns

of code violations, safety hazards, or disputed ownership.”75 Indeed, in surveying

the field, a variety of considerations have been elucidated to use when determining

what is reasonable. The Third Circuit has expressed that municipal seizures of

buildings for lack of compliance with the applicable housing code are generally

considered reasonable.76 Moreover, at least one court has held that a property seizure

is reasonable where a city was either acting in an emergency situation or acting

pursuant to their own ordinances and procedures.77 Some courts look to the

procedural due process provided, as “a municipality’s adherence to standards

comporting with due process ‘suggests the Fourth Amendment reasonableness’ of

the abatement.”78 The main factors courts consider, from a survey of applicable law

are: whether an emergency existed that necessitated quick action by the state79;

75 Jaramillo, 2023 WL 5635640, at *8.

76 Gardner v. McGroarty, 68 F. App’x 307, 312 (3d Cir. 2003) (“Where a building is seized

because of the danger it poses and adequate recourse is provided to challenge any action taken

by the local government, the seizure does not violate the Fourth Amendment.”); see also

Jaramillo, 2023 WL 5635640 at *8-9; Duffy, 591 F. App’x at 45.

77 Para, 2008 WL 2705538, at *16 (“[I]f the action taken by the Defendants was taken in an

emergency situation or their actions adhered to their own ordinances or procedures, their

actions would not violate the Fourth Amendment.”).

78 Ebert v. Township of Hamilton, No. 15-7331, 2018 WL 3772677, at *7 (D.N.J. Aug. 9, 2018)

(quoting Ferreira, 56 F. Supp. 3d 211, 231 (E.D.N.Y. 2014).

79 See, e.g., Duffy v. Kent County Levy Court, 591 F. App’x 41, 45 (3d Cir. 2014); Deiter, 2021

WL 2020589, at *14 (denying summary judgment and describing the issues as whether

“competent evidence existed to justify Defendants[’] emergency demolition of [Plaintiff’s]

home, or whether Defendants acted arbitrarily”); Para, 2008 WL 2705538, at *16-17;

DeRaffele v. City of Williamsport, No. 4:15-CV-02186, 2016 WL 11200711, at *8 (M.D. Pa.

whether the seizure was pursuant to municipal code80; whether the defendant

received due process to challenge the seizure81; and whether there is other evidence

that the seizure was made arbitrarily or without grounds.82

However, regardless of whether a violation of the Fourth Amendment actually

occurred, Plaintiff would still need to successfully plead the elements of a Monell

claim. As discussed above in some detail, plaintiffs that proceed under a municipal

policy theory must demonstrate “the existence of ‘an unconstitutional municipal

policy’” that proximately caused the alleged injury. 83 “Policy is made when a

‘decisionmaker possess[ing] final authority to establish municipal policy with

respect to the action’ issues an official proclamation, policy, or edict”84 or otherwise

“acquiesce[s]” in the adoption of the same.85 Plaintiff has not established that the

IPMC or Ordinances constituted a Borough policy of allowing individuals to

condemn houses without grounds for doing so. On the contrary, the IPMC clearly

contemplates inspections, as Section 104.2, adopted unamended by the Borough,86

Oct. 3, 2016) (Schwab, M.J.) report and recommendation adopted, No. 4:15-CV-02186, 2018

WL 2086074; Gardner, 68 F. App’x at 312.

80 Para, 2008 WL 2705538, at *16 (“One test for reasonableness is a City's adherence to its own

ordinances and procedures.”).

81 Duffy, 591 F. App’x at 45; Jaramillo, 2023 WL 5635640, at *8-9; Gardner, 68 F. App’x at

312; Ebert, 2018 WL 3772677, at *7.

82 See Thompson v. Armbruster, No. 1:13-CV-3885, 2015 WL 853769, at *14 (M.D. Pa. Feb. 26,

2015); Deiter, 2021 WL 2020589, at *14.

83 Biondino v. Bucks Cnty. Technical Sch. Auth., No. 24-1252, 2025 WL 2423736, at *3 (E.D.

Pa. Aug. 21, 2025) (quoting Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019)).

84 Berg v. Cnty. of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (quoting Kneipp v. Tedder, 95

F.3d 1199, 1212 (3d Cir. 1996))

85 Oaks v. City of Philadelphia, 59 F. App'x 502, 504 (3d Cir. 2003).

86 Doc. 19-1.

states that the “code official shall make all of the required inspections.”87

Additionally, Section 107.1, also adopted unamended though noted in Ordinance

02,88 provides that “[w]henever the code official determines that there has been a

violation of this code or has grounds to believe that a violation has occurred,” the

official shall give notice of the violation to the property.89 Section 106.3 provides

that proceedings may be instituted against a person “failing to comply” with the

notice.90 Moreover, Ordinance 05 changed the requirements in Section 108.4.1,

Placard Removal, to allow for removal of placards when it has been “satisfactorily”

demonstrated to the code official that the property is free of defects.91

None of these provisions imply that the Code Official may condemn houses

without any reasonable grounds to do so. The Court has not found, and Plaintiff has

not provided, any cases with courts holding as much. In fact, in reading the statute,

it is clear that the IPMC and the version adopted by the Ordinances are meant to

provide condemnation when a structure has condemnation-worthy defects, not on

the whim of a municipal official. At the very least, the IPMC and Ordinances do not

explicitly allow for condemnation of a structure without any grounds to do so.92

Therefore, Plaintiff would need to plead sufficient facts to show a Borough custom

87 IPMC 104.2, Inspections.

88 Doc. 19-1.

89 IPMC 107.1, Notice to Person Responsible

90 IPMC 106.3, Prosecution of Violation, Doc. 19-1.

91 Doc. 19-2.

92 This is fatal for a Monell claim, because if Code Official Oliver was not acting pursuant to an

official policy or custom, there can be no liability for the Borough.

of interpreting the IPMC and Ordinances to allow for condemnation without

reasonable grounds.

A custom is established by “‘practices by state officials that amount to

entrenched behavior in the municipal employees.’”93 A Monell custom theory must

be so “manifest or widespread as to imply the constructive acquiescence of

policymaking officials.”94 Plaintiff has not pled sufficient facts from which this

Court could conclude that the Borough had a widespread custom of condemning

houses without adequate grounds. Indeed, the only facts Plaintiff has pled are those

relevant to the instant condemnation of the Property, as opposed to facts tending to

show a pattern over several different instances. This cannot constitute a custom so

“manifest and widespread” as to imply the Borough constructively “acquiesce[ed]”

in its adoption.95

Because Plaintiff has not pled an unconstitutional policy or custom

promulgated by the Borough that proximately caused a violation of its rights,

Defendant’s motion to dismiss shall be granted. Plaintiff will be provided leave to

amend.96

93 Murphy v. Doe Police Detective #1, No. 20-2230, 2021 WL 4399646, at *5 (E.D. Pa. Sept. 27,

2021) (quoting Ekwunife v. City of Phila., 245 F. Supp. 3d 660, 674 (E.D. Pa. 2017).

94 DeRaffele, 2018 WL 2086074, at *2.

95 Murphy, 2021 WL 4399646, at *5.

96 If Plaintiff chooses to amend, parties are instructed that the Court will not accept pleadings or

briefing that lobs a mess of unsupported legal theories to the Court to rifle through. Parties

must do more than “mention a possible argument in the most skeletal way, leaving the court to

do counsel's work, create the ossature for the argument, and put flesh on its bones.” United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The briefings lacked any substantive analysis

III. CONCLUSION

Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is granted and the

Court will dismiss all counts against the Borough. Plaintiff is granted leave to

amend. As such, Plaintiff will be given fourteen days from today’s date to file an

amended complaint. If no amended complaint is filed, the action will be subject to

dismissal with prejudice.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

of whether the IPMC and the Ordinances qualify as a “policy” allowing for condemnation

without reasonable grounds and, if so, whether the policy meets the Fourth Amendment

requirements for unreasonable seizure. In providing leave to amend, the Court is providing

parties with the opportunity to address these issues.