# LAMIA

> District Court, W.D. Pennsylvania · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11309727

## Case

- **Full name:** Michael A. Lamia v. The Borough of Plum, t/d/b/a Borough of Plum, Plum Boro, Plum Borough; Zoning Hearing Board of Plum Boro; Kevin Fields, Zoning Officer and/or Designated Representative of Plum Boro; David Soboslay, Assistant Manager of Plum, in their Individual and/or Official Capacities
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 31, 2026
- **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/11309727

## How later opinions describe it (automated extraction)

- finding that a court of appeals should review a district court’s disposition of a case on mootness grounds as one for lack of subject matter jurisdiction under Rule 12(b)(1) even if the district court labeled its ruling as one for summary judgment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL A. LAMIA, )
) No. 2:22-cv-01035-RJC
Plaintiff, )
)
v. ) Judge Robert J. Colville
)
THE BOROUGH OF PLUM, t/d/b/a Borough )
of Plum, Plum Boro, Plum Borough; )
ZONING HEARING BOARD OF PLUM )
BORO; KEVIN FIELDS, Zoning Officer )
and/or Designated Representative of Plum )
Boro; DAVID SOBOSLAY, Assistant )
Manager of Plum, in their Individual and/or )
Official Capacities, )
)
Defendants. )

MEMORANDUM OPINION
Robert J. Colville, United States District Judge
Before the Court is the Motion for Summary Judgment (ECF No. 70) filed by Defendants,
the Borough of Plum, Zoning Hearing Board of Plum Boro, Kevin Fields, and David Sobsolay,
and the Motion for Summary Judgment (ECF No. 74) filed by Plaintiff, Michael Lamia. The Court
has jurisdiction in this matter pursuant to 28 U.S.C. § 1331, and has supplemental jurisdiction over
any state-law claims pursuant to 28 U.S.C. § 1367. The Motions have been fully briefed and are
ripe for disposition.
I. Factual Background & Procedural History
By way of procedural background, Plaintiff filed his Complaint in the Court of Common
Pleas of Allegheny County on June 24, 2022, at Civil Division GD22-007991. The action was
removed to this Court on July 18, 2022. Notice of Removal, ECF No. 1. Plaintiff’s Complaint
includes a request for a writ of mandamus (Count I), alleges a violation of the Pennsylvania
Municipal Code and Ordinance Compliance Act (Count II), alleges federal constitutional
violations under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments and Article I
and V (Count III), and alleges a claim of abuse of process (Count IV). See Compl., ECF No. 1, Ex.
2.

On July 26, 2022, Plaintiff filed a Motion to Remand (ECF No. 7) which this Court denied
on March 13, 2023 (ECF Nos. 14, 15). On August 15, 2022, Defendants filed a partial Motion to
Dismiss Count I (ECF No. 10) which this Court granted on September 11, 2023 (ECF Nos. 30,
31), dismissing Count I with prejudice. Lastly, on May 19, 2023, Plaintiff filed a Motion for
Temporary Restraining Order and Preliminary Injunction (ECF No. 18) which was denied by this
Court on May 26, 2023 (ECF No. 29).1
Defendants filed their Motion for Summary Judgment (ECF No. 70), along with a Brief in
Support (ECF No. 71), a Concise Statement of Material Facts (ECF No. 72), and an Appendix of
Exhibits (ECF No. 73), on February 14, 2025. On March 13, 2025, Plaintiff filed a Response in
Opposition. ECF No. 77. On March 26, 2025, Defendants filed a Reply. ECF No. 79.

Plaintiff also filed his Motion for Partial Summary Judgment (ECF No. 74), along with a
Brief in Support (ECF No, 75), and a Concise Statement of Material Facts (ECF No. 76) on
February 14, 2025. On March 14, 2025, Defendants filed their Response in Opposition. ECF No.
78. On March 28, 2025, Plaintiff filed his Reply. ECF No. 80.
Unless otherwise noted, the following facts are not in dispute:
Plaintiff owned property at 103 McJunkin Road, Pittsburgh, Pennsylvania 15239 (“the
Property”). ECF No. 72 ¶ 1; ECF No. 76 ¶ 2. Plaintiff testified that, in approximately 2016, he
applied for a permit to build a garage on his property. TRO Hearing Tr., 7:8-12, May 25, 2023,

1 The Motion for Temporary Restraining Order and Preliminary Injunction was referred to the Honorable Christy
Criswell Wiegand.
ECF No. 37.2 Plaintiff further testified that the Borough’s employee informed him that he could
not build a garage because he already had a carport and that “code enforcement” was sent to his
house. Id. at 7:22-8:5. Following, the Borough of Plum’s inspection of the Property, it sent a
letter to Plaintiff, dated February 22, 2017, detailing that the Property violated Ordinance #321.

ECF No. 72 ¶ 4; ECF No. 73, at 33; ECF No. 76, ¶ 1; ECF No. 76-1. Specifically, the letter
directed Plaintiff to “cease and desist all activities of dumping and filling at [the P]roperty
immediately and secure a Grading Permit from the Borough of Plum, along with the required
NPDES permit and approved Erosion & Sedimentation Control Plan from the Allegheny County
Conservation District” and informed Plaintiff that if the “Grading Permit is not obtained all fill
must be removed.” ECF No. 73, at 33; ECF No. 76-1. On April 11, 2017, the Borough of Plum
sent a second notice as to said violation and, on May 11, 2017, it sent a third and final notice as to
said violation. ECF No. 73, at 32, 34. Plaintiff testified that he was sent these letters due to dirt
piles present on his property which he subsequently removed in 2017. TRO Hearing Tr., 8:5-15.
Defendant Soboslay testified that the violation detailed in the letters concerned grading on the

hillside of the Property. Id. 48:5-12. Plaintiff testified that the condition of the hillside had been
present on his property since he purchased it in 1998. TRO Hearing Tr. 6:15, 13:16-23.
In June of 2021, Plaintiff began the process of attempting to sell the Property. ECF No.
73, at 106-134; ECF No. 76-2. As part of this process, a “Residential Occupancy Application”
was submitted for the Property to the Borough of Plum which was received in July of 2021. ECF
No. 73, at 28. On August 6, 2021, the Borough of Plum issued a Field Correction Notice detailing
various violations found at the Property, including the lack of carbon monoxide alarms and smoke

2 Both parties filed the TRO Hearing transcript as part of their Motions for Summary Judgment. See ECF No. 73 at
449-556; see also ECF No. 76-11.
detectors and the need to install a new dryer vent, outlets, drywall, etc. ECF No. 73, at 16-22.
Plaintiff testified that, sometime following the submission of the application for an occupancy
permit, he had conversations with Defendants about their denial of the occupancy permit due to
illegal dumping on the property. TRO Hearing Tr., 8:21-9:15.

On September 18, 2021, a grading permit application was submitted for the Property. ECF
No 73 at 5-6. This application was reviewed by KU Resources, Inc., the Borough’s engineer, who
stated that the application and provided plan did not provide enough information and was not in
compliance with Grading Ordinance #321. ECF No. 73 at 23; TRO Hearing Tr. 74:18. On
December 3, 2021, Soboslay sent an email to Plaintiff addressing Defendants’ denial of the
occupancy permit due to existing violations on the Property as well as Defendants’ denial of the
grading permit application. ECF No. 73 at 3. This email further stated that, to resolve the issue,
Plaintiff needed to have an engineer submit an application for a grading permit so that Defendants
could issue a grading permit and approve of the required grading work. Id. On December 8, 2021,
Plaintiff was notified that the bank would not close on the sale of his house without an occupancy

permit. ECF No. 76-6.
On March 23, 2022, Defendants issued a Field Correction Notice to Plaintiff notifying
Plaintiff that the occupancy permit would not be issued “due to an outstanding violation issued on
February 22, 2017 for illegal dumping of [c]onstruction materials, concrete, and large amount of
fill material on said property.” ECF No. 76-9. This Notice further provided that Plaintiff needed
to obtain a grading permit under Ordinance #321 or remove the fill from the property. Id. On
April 13, 2022, Defendants received Plaintiff’s Application to the Zoning Hearing Board to appeal
the denial of the occupancy permit. ECF No. 73 at 35. On May 10, 2022, KU Resources inspected
the Property and found fill on the Property consisting of construction materials including bricks,
concrete, gravel, plastic pipes, and pallets. ECF No. 73 at 24. KU Resources further expressed
concern that some of the materials may not comply with the Pennsylvania Department of
Environmental Protection’s Management of Fill Policy or the Pennsylvania Solid Waste
Management Act. Id. Further, the report detailed concerns that the area may be structurally weak

and unstable and that the fill had created a steep edge covered in rough-edged elements. Id. at 24-
25. The engineer testified about his report and detailed that there were additional concerns that
movement could trigger a landslide. TRO Hearing Tr. 82:6-20.
On May 18, 2022, the hearing was held before the Zoning Hearing Board and on May 26,
2022, the Zoning Hearing Board issued its findings of fact and conclusions of law finding that it
only heard appeals as to zoning ordinances and that, because Plaintiff’s occupancy permit was
denied because of violations of Ordinance #321, it was not the proper body to hear the appeal.
ECF No. 73 at 40-105; ECF No. 76-3. Plaintiff initiated the instant action in June of 2022.
In April of 2023, Plaintiff attempted a second sale of the Property. On May 17, 2023,
Defendants notified Plaintiff that they were denying his April 25, 2023 application for an

occupancy permit due to an existing violation at the property. ECF No. 73 at 446; ECF No. 76-
10. On May 19, 2023, Plaintiff filed a Motion for Temporary Restraining Order and Preliminary
Injunction. On May 23, 2023, Plaintiff’s engineer authored a report stating that it had inspected
the property three times on August 17, 2021, October 12, 2021, and May 18, 2023, and observed
no changes to the hillside opining that it was stable and in compliance with HUD and IRC codes.
ECF No. 76-8. The Court held a hearing on the Motion for Temporary Restraining Order on May
25, 2023. ECF No. 37; ECF No. 73 at 449-556; ECF No. 76-11.
Plaintiff then corrected the violations on the Property and received an occupancy permit
on June 4, 2024. ECF No. 73 at 609; ECF No. 76, ¶ 10; ECF No. 72, ¶ 15. He then sold the
Property on July 11, 2024. ECF No, 72, ¶ 16; ECF No. 73 at 611-16.
II. Legal Standard

Summary judgment may be granted where the moving party shows that there is no genuine
dispute about any material fact, and that judgment as a matter of law is warranted. Fed. R. Civ. P.
56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment
against a party who fails to make a showing sufficient to establish an element essential to his or
her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts in the light
most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor.
Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).
“The moving party bears the initial burden of identifying evidence which demonstrates the
absence of a genuine issue of material fact.” Bavone v. Primal Vantage Co., Inc., No. 2:21cv1260,

2024 WL 756815, at *1 (W.D. Pa. Feb. 21, 2024). When the moving party carries their burden,
the summary judgment “opponent must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). Further:
A non-moving party may not successfully oppose a summary judgment motion by
resting upon mere allegations or denials contained in the pleadings, or by simply
reiterating those allegations or denials in an affidavit. Lujan v. National Wildlife
Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Rather, the
non-moving party must offer specific evidence found in the record that contradicts
the evidence presented by the movant and indicates that there remain relevant
factual disputes that must be resolved at trial. See id. If the non-moving party does
not respond in this manner, the court, when appropriate, shall grant summary
judgment. Fed.R.Civ.P. 56(e).
Mahaven v. Pulaski Twp., 139 F. Supp. 2d 663, 664–65 (W.D. Pa. 2001), aff’d, 45 F. App’x 155
(3d Cir. 2002); see also Bavone, 2024 WL 756815, at *1 (“Likewise, mere conjecture or
speculation by the party resisting summary judgment will not provide a basis upon which to deny
the motion.”).

In ruling on a motion for summary judgment, the court’s function is not to weigh the
evidence, make credibility determinations, or determine the truth of the matter; rather, its function
is to determine whether the evidence of record is such that a reasonable jury could return a verdict
for the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51
(2000) (citing decisions); Anderson v. Liberty Lobby, 477 U.S. 242, 248–49 (1986); Simpson v.
Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998).
The mere existence of a factual dispute, however, will not necessarily defeat a motion for
summary judgment. Only a dispute over a material fact—that is, a fact that would affect the
outcome of the suit under the governing substantive law—will preclude the entry of summary
judgment. Liberty Lobby, 477 U.S. at 248.

III. Discussion
A. Defendants Motion for Summary Judgment
Defendants asserts that they are entitled to summary judgment on all of Plaintiff’s
remaining claims because: (1) there is no actual controversy that currently exists; (2) Plaintiff
failed to exhaust the administrative remedies available to him; and (3) there is no dispute of
material fact that Plaintiff had numerous violations on the Property and refused to comply with the
relevant Ordinances. ECF No. 70 at 2. Plaintiff opposes the Motion. The Court will address each
argument in turn.
1. Mootness
First, Defendants assert that summary judgment should be entered in their favor because
the action is moot as there is no longer an actual controversy between the parties.3 Specifically,
Defendants argue that Plaintiff’s claims are now moot because he was ultimately issued an

occupancy permit and sold his property for more than he was offered during the two prior attempts.
ECF No. 71 at 5. Plaintiff argues that his claims are not moot because he suffered damages as a
result of Defendants’ conduct in delaying the issuance of an occupancy permit. ECF No. 78 at 7-
8. In support of said argument, Plaintiff has submitted an Affidavit asserting that he made
improvements to his property prior to the 2024 sale including landscaping, a new kitchen, new
tiling, and painting in the approximate amount of $3,000 and that he added a second parcel of land
to his property worth approximately $35,000. ECF No. 78-1. Defendants argue that Plaintiff’s
Affidavit attempts to impermissibly expand the record beyond information exchanged during
discovery. ECF No. 79 at 2-3.
Mootness is directly related to Article III standing because mootness, like standing, is a

doctrine that limits a court’s jurisdiction “to cases in which a plaintiff has a concrete stake.”
Freedom from Religion Foundation Inc. v. New Kensington Arnold School District, 832 F.3d 469,
475-76 (3d Cir. 2016). Specifically, “[s]tanding ensures that each plaintiff has ‘the requisite
personal interest . . . at the commencement of the litigation,’ while mootness ensures that this
interest ‘continue[s].’” Id. at 476 (quoting Arizonans for Official English v, Arizona, 520 U.S. 43,
68 n.22 (1997)). As further explained by the Third Circuit,

3 If a claim is moot, then the Court lacks subject matter jurisdiction over said claim. Therefore, while Defendants
have raised the argument in a motion for summary judgment, it is really an argument that the Court lacks jurisdiction
brought pursuant to Fed. R. Civ. P. 12(b)(1). See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11
Cir. 2007) (finding that a court of appeals should review a district court’s disposition of a case on mootness grounds
as one for lack of subject matter jurisdiction under Rule 12(b)(1) even if the district court labeled its ruling as one for
summary judgment).
Mootness “ensures that the litigant's interest in the outcome continues to exist
throughout the life of the lawsuit.” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir.
1993). The party asserting that a claim is moot must show that it is “absolutely
clear that the allegedly wrongful behavior [is] not reasonably [ ] expected to recur.”
[Friends of the Earth, Inc. v. Laidlaw Envtl. Sers. (TOC), Inc., 528 U.S. 167, 189
(2000)]. “[A] court will not dismiss a case as moot,” even if the nature of the injury
changes during the lawsuit, if “secondary or ‘collateral’ injuries survive after
resolution of the primary injury.” Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 384
(3d Cir. 2001); Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)
(“[T]he question is not whether the precise relief sought at the time the application
for an injunction was filed is still available. The question is whether there can be
any effective relief.”).

Id. The burden of establishing mootness is on the party seeking to demonstrate the loss of standing.
Lutter v. JNESO, 86 F.4th 111, 120 (3d Cir. 2023).
Here, in the Complaint, Plaintiff requested the following relief: that the Court enjoin
Defendants from violating local laws, violating Plaintiff’s constitutional rights, and from asserting
code violations with respect to the Property; that the Court order Defendants to issue an occupancy
permit; that the Court award nominal, incidental, actual, compensatory, special, or other damages;
and that the Court award Plaintiff interest, costs, and reasonable attorney’s fees. As such, to the
extent Plaintiff requests injunctive relief or that the Court require Defendants to issue an occupancy
permit, such relief is moot. However, Plaintiff’s claims for damages and attorney’s fees are not
moot and the Court will allow Plaintiff’s claims to proceed so long as the claims for damages and
attorney’s fees remain. See Church v. City of St. Michael, 205 F. Supp. 3d 1014, 1030 (D. Minn.
2016) (finding that when the city amended the zoning ordinance at issue, the plaintiff’s claims for
injunctive relief were moot but that the plaintiff’s claims for damages and attorney’s fees still
presented a live controversy).
The Court acknowledges Defendants’ arguments as to the untimely submission of
Plaintiff’s Affidavit and as to the damages asserted in the Affidavit itself. However, the Court is
without sufficient information to resolve this issue. First, the Affidavit asserts damages related to
improvements made to the Property and the addition of a parcel of land. Without making any
official ruling, the Court questions whether Plaintiff would be entitled to damages for general
improvements he made to the Property that were unrelated to the alleged violations at issue in this

case. Even so, the Affidavit does assert that Plaintiff made improvements to landscaping, which
may be related to the alleged violations at issue in this case. The Affidavit does not, however,
clearly assert the amount of money Plaintiff spent to correct the alleged violations nor does it assert
any estimation as to the amount of attorney’s fees or as to any other damages allegedly sought by
Plaintiff.
Further, while Defendants argue that the claims made in Plaintiff’s Affidavit are not
supported by evidence in the record, were not disclosed during discovery, and that Plaintiff
ultimately sold the Property for more money, the Court has no information as to whether discovery
was exchanged concerning Plaintiff’s other alleged damages. Neither party has presented
substantive argument as to whether Plaintiff is required to submit proof of damages to survive

summary judgment under the claims at issue or as to whether Plaintiff is entitled to the damages
he seeks under the claims at issue. As such, questions of fact remain surrounding Plaintiff’s
damages in this case. Because questions of fact remain as to damages, Plaintiff’s request for relief
as to damages remains active and, therefore, Plaintiff’s claims are not moot. As such, Defendants’
Motion for Summary Judgment based on the argument that Plaintiff’s claims are moot is denied.
2. Exhaustion
Next, Defendants move for summary judgment based on Plaintiff failing to exhaust his
administrative remedies. Specifically, Defendants assert that Plaintiff failed to appeal his claims
to the Plum Borough Council and has offered no evidence or facts as to why he did not appeal.
ECF No. 71 at 6. Plaintiff argues that he made repeated and good faith attempts to exhaust his
claims but that Defendants “ignored, obstructed, or arbitrarily dismissed those efforts.” ECF No.
78 at 8.
Here, the Court again is without sufficient information or argument to resolve the

exhaustion question. To begin, Defendants have not presented any substantive argument in
support of their statement that Plaintiff failed to exhaust his claims. Defendants have not cited the
Court to the relevant ordinance at issue or to any case law directly relevant to the Court’s
consideration of the issue. This alone is reason to deny Defendants’ Motion. Further, in reviewing
the transcript of the Zoning Hearing Board, numerous arguments were made during said hearing
that, in the Court’s view, directly relate to the issue of exhaustion and as to what ordinance should
apply. See ECF No. 73, at 40-105; see also ECF No. 76-3. The arguments raised during the
hearing imply to the Court that the issue of exhaustion is much more complex than what either
party has presented in their briefing. It is not the Court’s function to create argument for the parties
and the Court declines to rule on the issue of exhaustion in light of the current record.

Therefore, Defendants’ Motion for Summary Judgment on the issue of administrative
exhaustion is denied. Defendants may renew their failure to exhaust argument, should it be
appropriate, by submitting additional evidence and argument, to which Plaintiff may respond with
additional evidence and argument of his own. See Hannah v. Administrator Albert C. Wagner
Youth Correctional Facility, 2020 WL 1864575, at *4 (D. N.J. April 14, 2020) (denying summary
judgment as to the issue of administrative exhaustion due to lack of information but allowing the
defendant to renew his argument). Any further motion should clearly set forth the basis for
summary judgment with citations to the relevant ordinances, evidence in the record, and case law.
B. Cross Motions for Partial Summary Judgment
Turning to Count II, both parties have moved for summary judgment on this count and the
Court will, therefore, address the parties’ arguments together. That said, the standards to be
applied in deciding cross motions for summary judgment are the same as those applied when only

one party has moved for summary judgment. The Court may only grant summary judgment if the
moving party is entitled to summary judgment as a matter of law and there are no genuine disputes
of material facts.
Before addressing the arguments of the parties, the Court acknowledges, generally, that
while Defendants stated that they were moving for summary judgment as to Count II, they did not
brief the issue until their Reply. See ECF No. 70 at 2 (asserting that Count II should be dismissed
because there is no dispute of material fact as to Count II). While normally the Court would
caution against ruling on an issue not fully argued until a Reply, the arguments raised by
Defendants were similarly raised in Defendants’ Response to Plaintiff’s Motion for Summary
Judgment and, as such, Plaintiff had the opportunity to respond to these arguments.

Turning to the substance of the parties’ arguments, Plaintiff has moved for summary
judgment as to Count II arguing that there are no disputes of material fact that Defendants violated
Pennsylvania’s Municipal Code and Ordinance Compliance Act (“MCOCA”) when they denied
an occupancy permit to Plaintiff. Defendants oppose the Motion.4 Defendants have moved for
summary judgment arguing that there is no dispute of material fact that Plaintiff had “substantial

4 In opposing the Motion, Defendants argue that Plaintiff has attempted to impermissibly expand the record before the
Court. ECF No. 77 at 3. Specifically, Defendants argue that Plaintiff has submitted as part of his appendix an exhibit
that Judge Weigand declined to admit during the TRO hearing. Id. Defendants have not specifically identified the
document at issue in their briefing on the Motion for Summary Judgment, but, having reviewed the TRO hearing
transcript, the Court notes that the document at issue is likely an engineering report. See TRO Hearing Tr., 25:22-
27:24. To begin, when ruling on a motion for summary judgment the Court is not bound to the record that existed
before it when it ruled on a motion for temporary restraining order. At the time the Court conducted the TRO hearing,
discovery had not been completed. Further, Defendants have not argued that the engineering report was not disclosed
during discovery. As such, any arguments made related to the inclusion of the engineering report are denied
violations” on the Property and that Defendants denied Plaintiff’s request for an occupancy permit
based on those violations. ECF No. 70 at 2; ECF No, 79 at 4. Plaintiff opposes the Motion.
The Honorable Christy Criswell Wiegand set forth the applicable standard under the
MCOCA when ruling on Plaintiff’s Motion for Temporary Restraining Order and Preliminary

Injunction. The Court incorporates that standard below:
[T]he Pennsylvania Municipal Code and Ordinance Act provides:

(a) General rule. – A municipality requiring a use and occupancy
certificate shall issue the certificate in the following manner:

(1) If the municipal inspection reveals no violations.

(2) If the municipal inspection reveals at least one violation, but
no substantial violations, the municipality shall issue a
temporary use and occupancy certificate.

(3) If the municipal inspection reveals at least one substantial
violation, the municipality shall specifically note those items
on the inspection report and shall issue a temporary access
certificate.

68 P.S. § 1082.1. . . . The statute defines a “substantial violation” as follows:

A violation of an adopted building, housing, property maintenance
or fire code or maintenance, health or safety nuisance ordinance that
makes a building, structure or any part thereof unfit for human
habitation and is discovered during the course of a municipal
inspection of a property and disclosed to the record owner or
prospective purchaser of the property through issuance of a
municipal report.

Id. § 1082.
May 26, 2023 Memorandum Opinion, ECF No. 29 at 5-6. The statute further defines “unfit for
human habitation” as follows:
A condition which renders a building or structure, or any part thereof, dangerous or
injurious to the health, safety or physical welfare of an occupant or the occupants
of neighboring dwellings. The condition may include substantial violations of a
property that show evidence of: a significant increase to the hazards of fire or
accident; inadequate sanitary facilities; vermin infestation; or a condition of
disrepair, dilapidation or structural defects such that the cost of rehabilitation and
repair would exceed one-half of the agreed-upon purchase price of the property.

Id.
Here, Plaintiff first argues that, under the MCOCA, there was no “substantial violation”
because substantial violations only concern the structure of the property. ECF No. 75 at 5.
Defendants argue that this Court has already determined that a substantial violation can exist to
the property and not just structures located on the property. ECF No. 77 at 4-5. This argument is
one that was already addressed by Judge Weigand when ruling on Plaintiff’s Motion for
Temporary Restraining Order and Preliminary Injunction. The Court acknowledges that a
different standard applies when considering a Motion for Temporary Restraining Order versus a
Motion for Summary Judgment. The Court also acknowledges that it may not rely on previous
credibility and factual findings made on a Motion for Temporary Restraining Order when ruling
on a Motion for Summary Judgment because the Court must, at this stage, determine whether any
genuine issues of material fact are left to be resolved and must not weigh the evidence or make
credibility determinations.
That said, this argument is simply a legal one. Whether the MCOCA allows for the denial
of an occupancy permit based on a violation located on the property but not the structure itself.
The Court agrees with Judge Weigand that “the text [of the MCOCA] states, “[a] violation . . . that
makes a building, structure, or any part thereof unfit for human habitation” qualifies as a
substantial violation and, therefore, “the statute is not limited to only structural dwellings but,
rather, contemplates violations on any part of the property.” May 26, 2023 Memorandum Opinion,
p. 7. Further, when looking to the entire MCOCA, the statute states that “the purchaser of a
property known to be in violation or substantial violation of a municipal code or ordinance shall,
at his option, either: (1) bring the property into compliance . . . or (2) demolish the building or
structure.” 68 P.S. § 1083(a) (emphasis added). The use of the term “property” throughout the
statute further suggests that a violation can be to the entire property and not just a building or
structure. As such, a substantial violation found on any part of the property can result in the denial

of an occupancy permit under the MCOCA.
Next, Plaintiff argues that because Defendants relied on Ordinance #321 as the basis for
denying the occupancy permit, and because Ordinance #321 does not relate to occupancy of a
structure or dwelling and instead only relates to the grading of property, Defendants’ decision to
deny the occupancy permit was arbitrary. Id. at 6. Specifically, Plaintiff argues that because
Ordinance #321 deals only with grading, excavation, and fills, Defendants’ denial of the
occupancy permit based on Ordinance #321 is misplaced. ECF No. 75 at 6. Further, Plaintiff
argues that the term “occupancy permit” does not appear in Ordinance #321 and that Defendants’
application for an occupancy permit does not make reference to fill or grading. Id. Defendants
argue that no material fact exists that they found a substantial violation based on the grading issues

on the Property. ECF No. 77 at 4. This argument is also purely legal in nature.
In reviewing the MCOCA in its entirety, it is clear that a substantial violation, while defined
in the statute itself, is found when a property owner has violated a municipal code or ordinance.
Specifically, the statute defines “substantial violation” as “[a] violation of a . . . code or . . .
ordinance that makes a building, structure or any part thereof unfit for human habitation . . .” 68
P.S. § 1082 (emphasis added). Further, when detailing the requirements for complying with the
MCOCA, the statute details that “the purchaser of a property known to be in violation or
substantial violation of a municipal code or ordinance shall, at his option, either: (1) bring the
property into compliance with municipal codes or ordinances or (2) demolish the building or
structure.” Id. § 1083(a) (emphasis added). Therefore, the statute in its entirety makes it clear that
a municipality may deny an occupancy permit where there are violations of a municipal code or
ordinance on the property that create a substantial violation. As such, Defendants could rely on a
violation of Ordinance #321 when finding whether a substantial violation existed on the Property

even if Ordinance #321 does not directly deal with the issuance of occupancy permits.
Next, Plaintiff argues that no substantial violation existed on the property and, that even if
one did, Defendants still did not comply with the MCOCA. Defendants argue that no material fact
exists that they found a substantial violation based on the grading issues on the Property. ECF No.
77 at 4. To begin, Plaintiff has not argued or presented evidence that the issues identified on the
Property did not exist at the time Defendants denied the occupancy permit. Further, the numerous
letters sent to Plaintiff by Defendants detail that Defendants identified a violation on the Property
and would not be issuing an occupancy permit. As such, there is no question of fact that the
identified condition existed on Plaintiff’s property and that Plaintiff was notified that such a
condition was a violation which resulted in the denial of the occupancy permit.

Therefore, the Court must determine whether the violation that existed was a “substantial
violation.” While not addressed directly by either party, the Court notes that two interpretations
of the MCOCA are possible here. The first, is that the determination of whether a “substantial
violation” exists is solely in the municipality’s purview and, therefore, the only question is whether
Defendants did in fact find a substantial violation under the MCOCA. The second, is that it is up
to this Court to determine whether Defendants’ finding of a substantial violation is supported by a
review of the evidence before the Court. The Court need not determine which interpretation is
correct because the Court comes to the same conclusion under either interpretation.
Under the first interpretation, there is no question of fact that Defendants found a
substantial violation of the Property under the MCOCA. On May 17, 2023, Defendants sent a
letter to Plaintiff stating that they had received the application of an occupancy permit but that
Defendants could not issue the occupancy permit due to an existing violation at the Property. ECF

No. 73 at 446; ECF No. 76-10. Then, on May 23, 2022, Defendants issued a field corrective notice
for the Property noting that an occupancy permit would not be issued due to an outstanding
violation “for illegal dumping of [c]onstruction materials, concrete, and large amount of fill
material on [the P]roperty.” ECF No. 76-9. The Court acknowledges that the letters sent to
Plaintiff to do not use the term “substantial violation” or “unfit for human habitation.” However,
in reviewing the record as a whole, and in viewing the evidence in the light most favorable to
Plaintiff, the Court finds that Defendants found a substantial violation on the Property that resulted
in them denying the occupancy permit.
The Court now turns to the second possible interpretation, that the Court must review the
evidence and determine whether a “substantial violation” exists on the Property. The Court

previously set forth the definition of a substantial violation above which requires that there be a
violation that makes the property “unfit for human habitation.” Relevant to the Court’s analysis
here, “unfit for human habitation” is a condition that makes the property dangerous to the health,
safety, or physical welfare of an occupant or neighbors which includes evidence of an increase in
the risk of an accident. Here, the pictures submitted detail significant concrete and debris along
the hillside of the Property. The 2022 engineering report submitted by Defendants’ engineer
details that the presence of bricks, concrete, gravel, plastic pipe, pallets, and other elements create
a steep slope covered in rough-edged elements. ECF No. 73 at 24-27. It further details concerns
about the future stability of the hillside. Id. The engineering report submitted by Plaintiff, details
that three inspections were completed of the Property over the course of one year and 9 months
and that no changes to the hillside were observed and the engineer opined that the hillside was
stable. ECF No. 76-8.
While the two engineering reports provide conflicting opinions as to the stability of the

hillside, the Court notes that Defendants’ engineer is concerned about future stability while
Plaintiff’s engineer speaks more to the immediate stability of the hillside, Plaintiff has not offered
any evidence to counter Defendants’ engineer’s opinion that there are numerous construction
materials on the property creating a steep hillside covered in rough-edged materials. Such an
opinion is further supported by a review of the submitted photographs. ECF No. 73 at 423-445;
ECF No. 76-12. As such, Defendants have submitted ample evidence that the presence of the
construction materials on the Property, especially given their location on a steep hillside, creates a
condition that is dangerous to the safety of the occupant and neighbors which includes evidence
of an increase in accidents. In reviewing the evidence in the light most favorable to Plaintiff, the
Court finds that Defendants are entitled to summary judgment that a substantial violation existed

on the Property.
Lastly, Plaintiff argues that, even if a substantial violation did exist on the Property,
Defendants violated the MCOCA by not issuing a temporary access certificate. The MCOCA
states that if a substantial violation is found, “the municipality shall specifically note those items
on the inspection report and shall issue a temporary access certificate.” 68 P.S. § 1082.1(a)(3). A
“temporary access certificate” is defined as:
A certificate issued by a municipality as a result of the municipal inspection of a
property incident to the resale of the property that identifies at least one substantial
violation, and the purpose of the certificate is to authorize the purchaser to access
the property for the purpose of correcting substantial violations pursuant to the
maintenance and repair provisions of this act. No new occupant who has not
previously occupied a property may occupy a property during the term of a
temporary access certificate, but tenants, in the case of a tenant-occupied property,
already occupying the property may remain in the property at the discretion of code
enforcement based on human habitability. The owner shall be permitted to store
personalty that is related to the proposed use or occupancy of the property or is
needed to repair the substantial violations during the time of the temporary access
certificate.

Id. § 1082.
While Plaintiff moves for summary judgment arguing that Defendants violated the
MCOCA by failing to issue a temporary access certificate, Plaintiff’s Complaint makes no such
claim. In his Complaint, Plaintiff specifically asserts that Defendants violated the MCOCA by
failing to issue an occupancy permit because the alleged violation did not rise to the level of being
unfit for habitation and was only minor in nature. See Compl. ¶¶ 78-80. Further, in reviewing the
Complaint as a whole, Plaintiff never alleges that Defendants failed to issue a temporary access
certification. Instead, Plaintiff alleges only that Defendants failed to issue a permanent or
temporary occupancy permit. See Compl. ¶¶ 33, 38. As such, the Court will not consider
Plaintiff’s claim that Defendants violated the MCOCA by failing to issue a temporary access
certificate.
Therefore, for the reasons discussed above, the Court will deny Plaintiff’s Motion for
Partial Summary Judgment and grant Defendants’ Motion for Summary Judgment as to Count II.
IV. Conclusion
For the reasons discussed above, the Court will grant, in part, Defendants’ Motion for
Summary Judgment and will deny Plaintiff’s Motion for Summary Judgment. An appropriate
Order of Court follows.
BY THE COURT:

/s/Robert J. Colville
Robert J. Colville
United States District Judge

DATED: March 31, 2026

cc: All counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11309727. Public record. Not legal advice.