PHILADELPHIA – A federal appellate court has ruled to dismiss the case of a former housing tenant who claimed a housing manager forcibly evicted her and that former neighbors harassed her.

On Sept. 21, U.S. Court of Appeals for the Third Circuit judges Thomas L. Ambro, Cheryl Ann Krause and Richard L. Nygaard dismissed the case of plaintiff Thermuthis Lee.

In 2016, Lee filed a 36-count amended complaint in the Philadelphia County Court of Common Pleas against Philadelphia Housing Authority (PHA) Manager Leonard Petrolichio, PHA Attorney Andrew Kenis, plus Jeanette Tomlin and Khalil Smith – Lee’s neighbors – claiming that Petrolichio “forced her out of public housing” in late 2009, after years of alleged stalking and harassment from Tomlin and Smith.

The substance of her complaint is that Petrolichio and the PHA failed to evict these “nuisance” tenants, and also interfered in private criminal complaints she had filed against Tomlin and Smith, resulting in their acquittals on charges of harassment.

About two months after initiating the case, Lee wanted to obtain permission from the state court to add the PHA as a defendant and while that motion was pending, the defendants removed the action to the U.S. District Court for the Eastern District of Pennsylvania, on the basis of federal question jurisdiction.

By order on Dec. 29, 2016, the District Court granted the defendants’ dismissal motions, concluded Lee’s claims were time-barred and that even if they were timely, she had failed to allege state action necessary to support a Section 1983 claim. The Court dismissed her complaint with prejudice, noting she already amended her complaint once in state court and “further amendments regarding the alleged conduct would be futile in light of the applicable statute of limitations.”

Lee then appealed the District Court’s decision to the Third Circuit.

Lee argued on appeal the allegations in her complaint fell within Pennsylvania’s two-year statute of limitations for Section 1983 claims, citing “numerous PHA lease termination violations as early as Dec. 31, 2014, that she has specifically and consistently averred to”, but the appellate court said the lower court already resolved that question in determining she had not stated a plausible claim to relief.

“As Lee clarifies on appeal, she predicates her Section 1983 claim on the failure of Petrolichio and the PHA to act on her complaints and evict nuisance tenants, allegedly in violation of PHA procedures. In other words, she apparently asserts some sort of due process claim. But she has not plausibly done so based on the facts in her complaint,” the Third Circuit stated.

“Because her Section 1983 claim was the sole basis for federal jurisdiction, the District Court properly declined jurisdiction over her pendent state-law claims. Accordingly, we will affirm the judgment of the District Court. We also deny Lee’s motions to expand the record with videotapes and other documents which, according to Lee, substantiate her allegations of harassment. Lee has not stated a plausible constitutional claim, and thus this material is unnecessary to our disposition. To the extent that Lee requests any other forms of relief in her filings, those requests are likewise denied,” the Third Circuit concluded.

The defendants were represented by Janice L. Kolber of Kolber Freiman & Randazzo, and James P. McGarrity, all of Philadelphia.

U.S. Court of Appeals for the Third Circuit case 17-1059

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-05631

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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