Flanders v. Dzugan

156 F.Supp.3d 648

Edward L. Flanders, Jr., Plaintiff,

v.Fred Dzugan, an adult individual, and Ford City Borough, a Pennsylvania Municipal Corporation, Defendants.

Civil Action No. 12-1481

United States District Court, W.D. Pennsylvania.

Signed January 11, 2016

Jessica K. Ziemski, Richard J. Cromer, Leech Tishman Fuscaldo & Lampl, LLC, Pittsburgh, PA, for Plaintiff.

Mark R. Hamilton, Jeffrey T. Criswell, Thomas, Thomas & Hafer, LLP, Pittsburgh, PA, for Defendants.

OPINION

Nora Barry Fischer, United States District Judge

I. INTRODUCTION

In this action, Plaintiff Edward L. Flanders, Jr. has sued Defendants Fred Dzugan and Ford City Borough for alleged civil rights violations related to Flanders' unsuccessful attempt to construct an addition to his business premises. Presently pending before the Court is a motion for summary judgment (Docket No. 102) filed by the Defendants. For the reasons that follow, the motion will be granted, in part and denied, in part.

II. FACTUAL, LEGAL, AND PROCEDURAL BACKGROUND¹

A. The Pennsylvania Construction Code Act and Uniform Construction Code

In 1999, the Commonwealth's General Assembly enacted the Pennsylvania Construction Code Act (“PCCA”). See Act of November 10, 1999, P.L. 491, as amended, 35 Pa. Stat. Ann. §§ 7210.101 –7210.1103 (West). Among other things, the PCCA was intended “to insure uniform, modern construction standards and regulations throughout the Commonwealth for the protection of life, health and property and for the safety and welfare of consumers, the general public and the owners and occupants of buildings and structures.” Schuylkill Twp. v. Pennsylvania Builders Ass'n , 935 A.2d 575, 577 (Pa.Commw.Ct.2007) (citing 35 Pa. Stat. Ann. § 7210.102 ) (West)) (footnote omitted), aff'd 7A.3d 249 (Pa. 2010). To that end, Section 301(a)(1) of the PCCA directed the Department of Labor and Industry (the “Department”) to adopt, by regulation, “the 1999 BOCA National Building Code, Fourteenth Edition, as a Uniform Construction Code.” 35 Pa. Stat. Ann. § 7210.301(a)(1) (West). The Department did so, and the Commonwealth's Uniform Construction Code (“UCC”) provisions are now codified at Title 34 of the Pennsylvania Code, Part XIV. See 34 Pa. Code. §§ 401.1 et seq.

“The [PCCA] applies generally to the construction, alteration, repair and occupancy of all buildings in the Commonwealth and preempts the establishment of different construction standards by local ordinance.” Schuylkill Twp., 935 A.2d at 577 (citing 35 Pa. Stat. Ann. § 7210.104(a) and (d) ). Municipalities may, however, enact ordinances that equal or exceed the minimum requirements of the UCC, subject to review by the Department and the right of an aggrieved party to challenge the ordinance. See 35 Pa. Stat. Ann. § 7210.503 (West) ; Schuylkill Twp ., 935 A.3d at 577. In addition, the PCCA gives municipalities various options relative to the administration and enforcement of the Act, including the option to administer and enforce the provisions of the Act themselves through appointment of a municipal code official. See 35 Pa. Stat. Ann. § 7210.501(b)(1). Where a municipality elects self-enforcement, it is statutorily required to establish a board of appeals to hear appeals from the decisions of its code administrator. Id . at § 7210.501(c)(1). Members of the municipality's governing body may not serve as members of the board of appeals. Id .

On June 28, 2004, Ford City Borough (hereafter, the “Borough”) passed Ordinance 657, by which it adopted Pennsylvania's UCC as the municipality's official building code, effective July 8, 2004. (See Defs.' Ex. W, Docket No. 104-23.) Through Ordinance 657, the Borough also elected to self-administer and enforce the provisions of the PCCA. (Id. )

B. Interactions Between Plaintiff and the Defendants

During times relevant to this lawsuit, Dzugan was employed by the Borough as its Building Code Official or “BCO.” (Dzugan Dep. 11:15-17:6, Docket No. 130.) In this capacity, Dzugan was responsible for administering and enforcing provisions of the UCC. (Id. at 12:5-18, 13:11-17, 16:10-15.)

Flanders is the owner and operator of “ELF Appliance & Service,” a business that engages in the sale and servicing of home appliances. The business is located in the Borough at 235 Main Street. (CSMF ¶¶ 1-2, 39.)²

On July 28, 2005, Flanders, seeking to construct a 10' x 54' addition onto his existing commercial building, submitted an “Application for Permit to Erect a New Building or Structure” to Dzugan. (CSMF at ¶¶ 3-4, 40.) The permit application, which was filled out by Dzugan and signed by Flanders, contained a notation that the estimated cost of the project was $3,000. (Id. at ¶¶ 4-5.)

Dzugan subsequently issued a permit, which was signed by Flanders on August 3, 2005. (CSMF ¶8.) Attached to the permit was Dzugan's own hand-drawn sketch of the proposed footer and foundation, which Dzugan had created at some point after receiving the application. (Id. at ¶¶ 7, 42). After submitting his permit application, Flanders learned for the first time that a permit was being issued only for the footer and foundation of his new addition and that he would need to apply for a second building permit before finishing construction. (Id. at ¶ 9.)

On or about August 19, 2006, after constructing the footer and foundation and purchasing certain materials for the upper part of the addition, Flanders contacted Dzugan to apply for the second permit. (Id . ¶¶ 10-11, 43.) Dzugan inspected the property on August 21, 2006 and informed Plaintiff that he should submit a hand-drawn sketch of the proposed addition with the permit application. (Id. at ¶¶ 12, 44.) Three days later, however, Dzugan reversed himself in a letter dated August 24, 2006. In relevant part, the letter stated that:

any building permit for a commercial building cannot be written until you have submitted three sets of signed and sealed blue prints from a Pa. Certified architect or engineer. These will be plan reviewed by a third party agency, returned to me and then I can write you a building permit. This is governed by Section 106 of the IBC 2003 International Building Codes.³

I know I wrote you a permit for the foundation for your addition which is already completed, but the IBC was adopted since this and new rules are required by the State of Pa.⁴ You must meet accessibility issues for the public.

A building official is authorized to waive the submission of construction documents if the work is minor in nature, however yours is not because of the structural loads to be determined.

(Def.s' Ex. B, Docket No. 104-2.)

Notwithstanding this letter, Flanders submitted his second permit application along with only a hand-drawn sketch, which Dzugan refused to accept. (CSMF ¶15.) Concerned about deterioration of the materials in place and the possibility that runoff from the foundation might flood his business premises, Flanders proceeded to frame the addition sometime in the fall of 2006, despite his lack of a second building permit. (CSMF ¶¶ 16, 46.) Although Flanders had borrowed $12,000 for construction of the addition, this sum was not sufficient to pay for professionally drafted blueprints, which Flanders estimated would cost between $5,500 and $20,000. (Id . at ¶¶ 17, 47.)

On September 27, 2006 Dzugan issued a Stop Work Order to Flanders. (CSMF ¶ 18). When Flanders refused to sign the Order and stop construction, Dzugan issued a Non-Traffic citation that same day (hereafter, “Citation #1”), charging Flanders with violating Ordinance 657, the PCCA, and the August 24, 2006 directive to submit blueprints. (Id. at ¶ 19, Defs.' Ex. P, Docket No. 104-16.) Flanders does not dispute that Dzugan had probable cause for issuing this first citation. (See Pl.'s Mem. Opp. Mot. Summ. J. at 25 n.5, Docket No. 111; Oral Arg. Tr. 20:21-23 July 10, 2015, Docket No. 133.)

On October 30, 2006, Flanders received a letter from Dzugan advising him that a new sign leaning against his building was in violation of Borough Code because of its size. Thereafter, Flanders advised Dzugan that this sign was ELF Appliance's original sign, which had been removed from the original structure and was now leaning against the addition until it could be properly rehung. (CSMF ¶¶ 20, 48.) Flanders had purchased the commercial property in or around the mid-1990s, and the sign had been hanging on Flanders' building since shortly thereafter. (Id . at ¶49.) Nevertheless, on November 13, 2006 Dzugan issued a second Non-Traffic citation (“Citation #2”) to Flanders, charging him with violating the Borough Code for failing to comply with the October 30, 2006 letter regarding the sign. (Id. at ¶ 21.)

A consolidated hearing was held on February 13, 2007 in front of Magisterial District Judge Michael L. Gerheim for Citations #1 and #2. (CSMF ¶ 22.) Flanders was found guilty of the first citation and fined $1,059; he was found not guilty of the second citation. (Id. ) With regard to Citation #1, Magisterial District Judge Gerheim offered Flanders an opportunity to submit blueprints within one month's time, in which case his fine would be reduced to $350; however, Flanders opted to pay the full fine “under protest” rather than acquire the blueprints or appeal the District Judge's decision. (Id. at ¶¶ 23-24).⁵

On September 26, 2007, Dzugan issued Flanders a third citation (“Citation #3”) for failing to comply with the Magisterial District Judge's order to produce the blueprints. (CSMF ¶¶ 25, 53). At this point, Flanders pursued two separate challenges to Citation #3.

On the civil side, Flanders appealed Citation #3 to the Borough's UCC Board of Appeals (hereafter, the “Board” or “Board of Appeals”). On or around February 5, 2008, the Board issued an order denying the appeal and affirming Dzugan's denial of a building permit. (Id. at ¶¶ 26-27, 54-55). Flanders then appealed the Board's ruling to the Court of Common Pleas of Armstrong County. (Id. at ¶¶ 28, 56.) Despite noting the “avalanche of errors” that had led to the subject...