SCRANTON – A Colorado man who contended that a piece of mixed-use property he owned in Pittston was illegally demolished without the responsible authorities serving him notice, and who lost his case in federal court, has appealed to the U.S. Court of Appeals for the Third Circuit.
Douglas Bruce of El Paso County, Colo. first filed suit in the U.S. District Court for the Middle District of Pennsylvania on May 1 versus the City of Pittston.
“Plaintiff is the owner of a parcel of real estate located in the City of Pittston with the street addresses of 385 North Main Street, Pittston, Pennsylvania 18640. There was a building on the property, prior to defendant’s illegal demolition of the building as described herein. The ground floor of the building had operated as a bar, and there was an apartment upstairs,” the suit said.
“Without proper notice to plaintiff, defendant demolished the building on the property, thereby destroying any reasonable economic value or use for the property. Plaintiff did not receive any proper notice from defendant regarding any maintenance issues or other possible basis for the demolition, and/or proper notice of the issuance of fines or orders in connection with the same.”
The suit added that the demolition of a building due to unknown and alleged ordinance violations “constitutes an excessive fine under the Eighth Amendment of the U.S. Constitution.”
“Furthermore, plaintiff never received any notice in advance of the demolition of the building on the property and he therefore did not have the ability to contest the same. By demolishing the building without notice and due process, defendant deprived plaintiff of his property in violation of the Fifth Amendment of the U.S. Constitution and denied him his procedural due process rights guaranteed by the Fourteenth Amendment of the U.S. Constitution, as well as his substantive due process rights also guaranteed by the U.S. Constitution,” the suit stated.
“By defendant’s destruction of the building, plaintiff has been damaged in the form of future income value as well as the value of building and property, in an amount no less than $500,000. The defendant did not serve plaintiff with a search warrant, photos, or statement of particulars before prematurely demolishing the building, in violation of due process.”
The City of Pittston answered the complaint on May 23, countering that the plaintiff’s “unsafe, dilapidated and vacant” property was demolished on June 25, 2019, following “repeated efforts by the City to compel plaintiff to remediate the property.”
The answer added that Pittston Code Enforcement Officer Harry Smith issued an enforcement notice to the plaintiff on May 8, 2019, explaining that the property was “so deteriorated and dilapidated that it is dangerous, unsafe, unsanitary and otherwise unfit for human habitation or occupancy and it is no longer able to be repaired,” – directing that the plaintiff demolish the building and notifying him that ‘Pursuant to section 110.3 of the Property Maintenance Code, [his] failure to comply with this demolition order within 30 days will result in the demolition of the property by the City of Pittston, with all costs being charged against the real estate.”
The City of Pittston further provided affirmative defenses on its own behalf.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff’s claims are barred by the applicable statute of limitations. Plaintiff’s claims are barred, in whole or in part, by the statute of limitations because plaintiff was aware, no later than June 26, 2019, that the building was demolished. Plaintiff’s claims are barred, in whole or in part, by the statute of limitations because plaintiff was served with Magisterial District Judge Alexandra Kokura Kravitz’s orders imposing the complained of fines on May 23, 2019,” per those defenses, in part.
“Plaintiff’s claims are barred, in whole or in part, by the statute of limitations because plaintiff acknowledged the fines imposed in a June 27, 2019 interview, and was quoted as follows: ‘Of the magistrate who handled his municipal citation convictions, Bruce said: ‘She’s a slob; she’s incompetent; she’s a political hack,’’ and insists ‘that the City’s actions were illegal, that future liens would similarly be illegal, and he refused to pay them.”
It continues that the plaintiff’s Fifth Amendment claims brought under the Due Process and Takings Clauses fail as a matter of law because the plaintiff does not complain of any action of the federal government, because the plaintiff owns the property and has not been deprived of its economic benefit and because the demolition of the building was a valid exercise of the City’s police powers.
“Plaintiff’s Fourteenth Amendment pre-deprivation procedural due process claim fails as a matter of law because plaintiff was provided with notice and an opportunity to be heard. Plaintiff’s Fourteenth Amendment pre-deprivation procedural due process claim fails as a matter of law because plaintiff failed to avail himself of the pre-deprivation processes that were available to him under the International Property Maintenance Code as adopted by the City of Pittston Code. Plaintiff’s Fourteenth Amendment post-deprivation claim fails because he was afforded constitutionally adequate pre-deprivation process. Plaintiff’s Fourteenth Amendment post-deprivation claim fails because plaintiff failed to avail himself of state remedies available to him under the Pennsylvania Eminent Domain Code,” the answer continued.
“Plaintiff’s Fourteenth Amendment procedural due process claims fails because plaintiff’s due process rights were not violated. Plaintiff’s Fourteenth Amendment substantive due process claim fails as a matter of law because the demolition of plaintiff’s unsafe building was rationally related to a legitimate state interest. Plaintiff’s Fourteenth Amendment substantive due process claim fails as a matter of law because the demolition of plaintiff’s unsafe building does not shock the conscience. Plaintiff’s Fourteenth Amendment substantive due process claim is barred by the more specific provision rule.”
The answered added that the plaintiff’s Eighth Amendment claims brought under the Excessive Fines Clause are barred, in whole or in part, by the Rooker-Feldman doctrine, because they are not ripe and fail as a matter of law because the subject fines are not grossly disproportionate to the offense committed – besides their argument that the plaintiff’s Monell claims fail as a matter of law.
UPDATE
On Oct. 10, U.S. Magistrate Judge Karoline Mehalchick granted the City’s motion for judgment on the pleadings and subsequent motion for sanctions, thus dismissing the plaintiff’s case with prejudice.
But on Nov. 20, the plaintiff filed an appeal of the action to U.S. Court of Appeals for the Third Circuit.
“This court cannot ratify or cover up this trail of municipal corruption. Sanctions must be denied. The motion, filed with unclean hands, and its implied motion to dismiss the complaint, must both be denied. Any procedural delay in filing must be equitably excused and any statute of limitations tolled as an act of reasonable response in the face of rampant government misconduct. All warrants of arrest for plaintiff, and all fines, costs, and damages in this case, must be withdrawn and dismissed. The City has no harm from a delay in filing this complaint; the facts were frozen at the demolition,” the appeal notice stated, in part.
“Plaintiff’s complaint must proceed to a jury trial on its merits. Plaintiff intends to amend his complaint to add claims for damages under eminent domain law. Plaintiff also asserts explicit rights in our federal constitution cannot have 50+ random statutes of limitations imposed by courts to evade their plain meaning and enforcement in 50 states or other localities; they must be as uniform in America as the full Bill of Rights. Even if broken, property rights cannot yield to abusive public misuse of demolition. Lawless local acts or abuses cannot be protected or shielded by customary limits and filing timelines. Viewing strong disunity and mistrust of federal institutions, it is vital that ‘fundamental fairness’ consistently prevail in federal courts.”
For counts of property deprivation and violating the plaintiff’s procedural due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, violation of substantive due process and violation of the Eighth and Fourteenth Amendments to the U.S. Constitution, the plaintiff is seeking the following relief:
• On his first, second, third, and fourth causes of action, for damages, including actual, punitive, compensatory, treble, and special damages in an amount to be proven at trial but not less than $500,000, plus attorney fees, court costs, and costs of litigation;
• On all causes of action, for actual, compensatory, statutory, punitive, exemplary, treble, or other damages of any kind or type to which he is entitled; for an award of attorney fees, court costs, and costs of litigation; for a declaratory judgment or order declaring that defendant’s conduct as described above violated the constitutional rights of plaintiff as protected by the United States Constitution; for a declaratory judgment or order declaring the relevant ordinances, policies, and procedures facially unconstitutional and unconstitutionally applied to plaintiff, declaring any actions taken by defendant void ab initio; and for any other and further relief to which plaintiff may be entitled under law or equity and which the Court may find just and appropriate under the circumstances; and
• An award of attorney fees and court costs under 42 U.S.C. Section 1983 and Section 1988;
• Immediate cancellation of all warrants for arrests and fines, so the plaintiff may appear and defend himself, his property, and his rights.
The plaintiff is represented by Danielle M. Mulcahey of Wright Reihner & Mulcahey in Scranton, plus Aaron C. Garrett of the Nonprofit Legal Services of Utah, in Salt Lake City, Utah.
The defendant is represented by Jennifer Menichini and Joseph J. Joyce III of Joyce Carmody & Moran, in Pittston.
U.S. Court of Appeals for the Third Circuit case 23-03081
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-00711
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com