Deiter v. City of Wilkes-Barre

MELINDA DEITER and JOHN DEITER, Plaintiffs, v. CITY OF WILKES-BARRE, et al., Defendants,andSTELL ENTERPRISES, INC. et al., Additional Defendants.

3:16-CV-132

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 19, 2021

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs Melinda Deiter and John Deiter filed this action pursuant to 42 U.S.C. § 1983 alleging deprivation of property without due process of law in violation of the Fourteenth Amendment, a taking of property without just compensation in violation of the Fifth Amendment, seizure and destruction of property without a warrant in violation of the Fourth Amendment, as well as a state law conversion claim. (See Plaintiffs' Amended Complaint, Doc. 22). Presently before the Court are cross-motions for summary judgment filed by Plaintiffs (Doc. 98) and Defendants City of Wilkes-Barre and Frank Kratz (Doc. 102). Additional Defendants Stell Enterprises, Inc. and Robert Stella also moved for partial summary judgment against Plaintiffs in this matter (Doc. 106), which the Court will address in a separate opinion. For the reasons set forth below, the Court will deny the cross-motions, as there are many genuine disputes of material fact which must be resolved at trial.

II. STATEMENT OF UNDISPUTED FACTS

Plaintiffs Melinda Deiter and John Deiter and Defendants City of Wilkes-Barre and Frank Kratz have each submitted a Statement of Undisputed Material Facts (see Docs. 99, 104) as to which they submit there is no genuine issue or dispute for trial. Each party has also submitted a Response (see Docs. 121, 112) and the following facts have been admitted.¹

1. The Property

In September 2015, Plaintiff Melinda Deiter took title to a property located at 54 and 54 ½ Marlborough Avenue, Wilkes-Barre, Pennsylvania through a quit claim deed from her father, Plaintiff John Deiter. (Doc. 99, at ¶ 1; Doc. 104 at ¶ 15). Ms. Deiter's ownership arose from an agreement with her father, wherein she would pay $8,478.14 in delinquent real estate taxes on his behalf in exchange for ownership of the property, and she would allow him to live there free of rent. (Doc. 104 at ¶¶ 9, 10).

The dimensions of the property are thirty-seven and one-half feet (37.5') wide by one hundred thirty-two and eighty-eight tenth feet (132.88') long, and the parcel contains four thousand nine hundred and eighty-three square feet (4,983 sq. ft.) of surface. (Doc. 104 at ¶ 4). Prior to the fire and subsequent demolition, the property contained a double block, side-by-side residential home. (Id. at ¶ 2). The structure of the home was a two story, wood frame structure with asphalt shingles over wood decking. (Id. at ¶ 3). Before it was demolished, the double block home had an assessed value of $72,900. (Doc. 99 at ¶ 48).

After Ms. Deiter took title to the property, Mr. Deiter continued to live on the 54 side of the double block home while the 54 ½ side remained vacant. (Doc. 104 at ¶¶ 23, 24; Doc. 99 at ¶ 4). Ms. Detier intended to rent the 54 ½ side of the house. (Doc. 99 at ¶ 5).

The outside of the property "looked terrible" as the front porch was in bad shape and in need of repair and the roof was older and needed to be replaced. (Doc. 104 at ¶ 16). To prepare for renting, Ms. Deiter had the interior of the 54 ½ side of the house evaluated for remodeling, purchased materials for the remodeling project, and hired workers for the interior remodeling. (Doc. 99 at ¶ 5). Richard Zimmerman, Ms. Deiter's lifelong friend, planned to help Ms. Deiter remodel the 54 ½ side of the home, as he had extensive first-hand experience in home reconstruction and carpentry. (Id. at ¶ 6).

2. The Fire

On Sunday, November 15, 2015, Mr. Zimmerman was working on the 54 ½ side of Ms. Deiter's property. (Doc. 104 at ¶ 28). On that day, Mr. Zimmerman was measuring forplumbing pipes and wiring because the copper pipes were stolen, and wires were missing from the breaker panel. (Id. at ¶ 30). Mr. Zimmerman was the only person working on the 54 ½ side of the home at the time. (Id. at ¶ 29).

While he was working, Mr. Zimmerman was smoking inside the home and extinguishing his cigarettes on the concrete floor near the furnace and electrical panel. (Id. at ¶¶ 31, 32). Mr. Zimmerman ran out of cigarettes, so he left the property and went to Turkey Hill to buy more. During this trip, Mr. Zimmerman also went to Lowe's to buy PVC pipes. (Id. at ¶ 33).

When Mr. Zimmerman returned to the property, he discovered that the rear porch of the 54 ½ side of the double block home was on fire. (Id. at ¶ 34). Mr. Zimmerman was not able to extinguish the fire himself. (Id. at ¶ 36).

The City of Wilkes-Barre Fire Department was called, who later extinguished the fire. (Doc. 104 at ¶ 37; Doc. 99 at ¶ 7). City of Wilkes-Barre Assistant Fire Chief John Ostrum noted in his report that the firefighters were able to get control of the fire, which prevented it from spreading to the other side of the double block. (Doc. 99 at ¶ 9).

When Ms. Deiter arrived at the scene, she identified herself to the Fire Department as the owner of the property and provided her phone number. (Id. at ¶ 10).

3. Inspections of the Property After the Fire

On Sunday, November 15 and Monday, November 16, 2015, an origin and cause investigation was conducted by Assistant Chief Fire Inspector/Investigator William A.Sharksnas of the City of Wilkes-Barre Fire Department. (Doc. 104 at ¶ 44). Assistant Chief Sharksnas concluded that the cause of the fire was incendiary, meaning the fire was deliberately ignited. (Id. at ¶ 45). Assistant Chief Sharksas observed that the fire reached the ceiling of the rear porch of the 54 ½ side of the property. (Id. at ¶ 46). He also observed that the fire had burned through the ceiling and flooring into the second-floor space above the porch while burning the exterior. (Id. at ¶ 46). Assistant Chief Sharksnas further observed extensive damage to the first and second floor of the northeast corner of the 54 ½ side of the property, and that the fire damage had extended into the eaves. (Id. at ¶ 47). He noted in his report that the fire caused possible structural damage. (Id. at ¶ 46).

After the fire was extinguished, Mr. Zimmerman was told by the Fire Department that he was not allowed back on the property until after the fire investigation was completed. (Doc. 99 at ¶ 40). However, at some point after the fire, Mr. Zimmerman and Ms. Deiter looked at the property from the alleyway behind the home, from the sidewalk, and from the neighbor's yard, which is approximately twelve feet from the property. From this vantage point, Mr. Zimmerman was able to see the floor joists on the first and second floors and the wall studs. (Id. at ¶ 40).

Based on his view of the home, Mr. Zimmerman believed the house was structurally sound, as not one structural support beam was one hundred percent compromised. (Id. at ¶ 41). Mr. Zimmerman observed that the structural support beams "took some level of damage" but "nowhere near enough damage that the structure was in danger of collapsing."(Id). Mr. Zimmerman also believed that the cost of supplies "to repair a couple of the support beams and then some plywood, [and] siding" would be approximately $5,000. (Id. at ¶ 43).

On Tuesday, November 17, 2015, Ms. Deiter went into the house to retrieve her father's medications. (Id. at ¶ 44). At this time, Ms. Deiter saw no damage to the side of the house where her father lived, and everything was intact. (Id. at ¶ 44).

Although the timing is disputed, the parties agree that Vincent A. Griffin, P.E. of E.D. Pons and Associates, Inc. performed an evaluation of the fire damage. (Doc. 104 at ¶ 52; see Doc. 121 at ¶ 51). On November 18, 2015, Mr. Griffin provided Defendant Frank Kratz with a written structural engineering report regarding his conclusion as to Ms. Deiter's property. (Doc. 104 at ¶ 65; see Doc. 121 at ¶ 65). In his report, Mr. Griffin found as follows:

There is significant structural damage to the back half of the structure. The second-floor framing and the supporting members in this area are almost completely destroyed. Portions of the roof structure were also damaged by the fire. There are large openings in the roof framing and significant portions of the ceiling have collapsed. The floor and roof framing in the back portion of the house are unstable and unsafe for people to enter. Due to the structure's proximity to the neighboring residences a partial collapse of the back portion of the structure may injure the inhabitants of the neighboring property. There was no observed fire damage on the south side of the double block home. However, due to the construction of the building a partial collapse or partial removal of the north half of the double block would create an unstable condition on the south side.

(Doc. 104 ¶ 54).

In his report, Mr. Griffin recommended as follows:

The above referenced building is structurally unsafe for any form of occupancy. There is a risk of a partial collapse of the building and it is not safe for anyone to enter. As a result of the above conditions of this building and its surroundings, I highly recommend that the building be condemned for demolition.

(Id. at ¶ 55).

4. Demolition of the Double Block Home

In November of 2015, Mr. Kratz served as a Code Official/Code Enforcement Officer for the City of Wilkes-Barre. (Id. at ¶ 48). Through this role, Mr. Kratz had full authority within the City of Wilkes-Barre to deem property unsafe and to call for its demolition. (Doc. 99 at ¶ 11). Before authorizing such demolition, Mr. Kratz was required to confirm with the Fire Inspector that the Fire Department had concluded its investigation into the cause of the fire. (Id. at ¶ 12).

On November 15, 2015, Mr. Kratz was directed by his boss, Butch Frati, to check the fire damage to Ms. Deiter's property first thing on Monday, November 16, 2015. (Doc. 104 ¶ 49). While it is disputed whether Mr. Kratz "inspected" Ms. Deiter's property, the parties agree...