PHILADELPHIA – A federal judge has conditionally denied a Philadelphia man’s attempt to name specific individuals from the City of Philadelphia’s Licenses and Inspections Department, defendants who allegedly took part in the Department demolishing two of the plaintiff’s properties, located adjacent to the scene of a fire, in October 2019.
Negash Aberra first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 27 versus the City and unknown City employees. All parties are of Philadelphia.
“Aberra is in the business of buying properties and repairing and refurbishing them for sale; plaintiff owned properties at 1148 and 1150 Rising Sun Avenue, which he intended to sell for profit or for other business purposes. As of Oct. 4, 2019, both properties were physically stable, were in livable condition and they posed no threat of danger to the neighboring properties or residents in the area,” the suit said.
“On Oct. 5, 2019, at around 3 a.m. or thereafter, a fire broke out at the house next to plaintiff’s properties, at 1146 Rising Sun Avenue. Based on statements from plaintiff’s neighbors, employees of the City of Philadelphia Fire Department allowed the fire to burn for an inordinate and unreasonable amount of time, prior to attempting to extinguish it; the result in the purposeful delay in extinguishing the fire, was that it spread to plaintiff’s properties and caused fire damage to both of them. Although plaintiff’s properties suffered fire damage, they were both still structurally sound and were not in danger to collapse in part or in whole.”
Aberra added that two days later, employees from the City’s Licenses and Inspections Department arrived at the scene of the fire, telling him they intended to demolish his properties – and Aberra responded by telling them that his properties were stable and salvageable, and that he was going to repair them immediately.
“A Licenses and Inspections supervisor named ‘Paul’ told plaintiff that he needed to obtain a temporary restraining order from court to stop demolition, and plaintiff indicated that he would do so. Plaintiff went to City Hall for the purpose of filing for restraining order; a hearing occurred at which time a Mr. Rybakowski from the Department of Licenses and Inspections informed plaintiff (and the court) that his houses had already been demolished by the Department, making any hearing on the issue moot,” per the suit.
“Approximately three days after plaintiff’s houses were demolished, he received a letter from Licenses and Inspections, informing him that he had five days to inform it whether he intended to repair the properties or not and to request a permit to repair them, before they would simply demolish the properties if he did not respond; however, the houses had already been demolished.”
Aberra explained that he had a history with the Department and Rybakowski, filing prior litigation against those parties for alleged improper demolition of another one of his properties on Dec. 20, 2017.
Historically, the plaintiff added he has experienced unfair treatment from the Department and Rybakowski, including undeserved citations and notices for demolition of his properties.
The City replied with an answer on Nov. 9, dismissing Aberra’s allegations as conclusions of law to which no official response was required and providing six affirmative defenses to the case.
“Plaintiff has failed to state a claim against defendant as to which relief can be granted. Plaintiff cannot recover punitive damages from defendant. Plaintiff has suffered no legally cognizable injury, harm, loss, or damage as to which relief can be granted,” the defenses said.
“Plaintiff’s claims are barred, in whole or in part, insofar as defendant’s purported actions or omissions were not the proximate cause of any alleged injury, loss, or damage incurred by plaintiff. Defendant asserts all of the defenses, immunities, and limitations of damages available to it under the Political Subdivision Tort Claims Act and avers that plaintiff’s remedies are limited exclusively therein. Plaintiff’s claims are barred, in whole or in part, by plaintiff’s failure to mitigate his alleged damages.”
UPDATE
Aberra filed a motion to amend the complaint on March 22, seeking to add the names of specific individuals from the Department to the litigation.
“Although the plaintiff sought to obtain the names by way of interrogatory, of the persons who decided to and did destroy his property – real estate, the City was delayed on providing the names of those persons and has done so recently. Plaintiff now desires to amend his complaint to add as defendants those persons who have been identified by the above-referenced defendant as the decision-makers and persons who executed the demolition of his property, to include Paul Poessel, Construction Compliance Supervisor; Joseph Carroll, L&I Building Inspector, Thomas Burns, L&I Construction Plan Review Specialist and Thomas Rybakowski, Construction Compliance Supervisor,” the motion stated.
“The persons named above would have been named in the original complaint, if their identity was known. Pursuant to Federal Rule of Civil Procedure 15, amendment should be liberally granted when justice so requires; additionally, under Federal Rule of Civil Procedure 15(c), the amendment should relate back to the time of the original filing, because the persons to be added would have or should have received notice that they were the person intended to be named as defendants, and the amendment sought seeks only to change the names of the defendants from unknown and unnamed to those named above.”
Aberra’s counsel explained that Rybakowski was already named in the complaint, and Poessel was only referred to by his first name, since that was the only identifying information the plaintiff had regarding him at the time – adding as well that contact was made to defense counsel regarding these changes and went unanswered.
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert denied the request without prejudice the following day, on March 23. Pappert explained that should Aberra wish to amend his complaint, he would need to include a draft amended version of his complaint to follow proper protocol.
For counts of procedural and substantive due process violations of the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. Section 1983 and negligence, the plaintiff is seeking, jointly and severally, compensatory and punitive damages.
The plaintiff is represented by Reginald C. Allen in Philadelphia.
The defendants are represented by Danielle B. Rosenthal of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-04241
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com