Balent v. City of Wilkes-Barre

KELTON, Senior Judge.

The City of Wilkes-Barre (City) appeals from the June 9, 1993 judgment of the Court of Common Pleas of Luzerne County (trial court) which denied the City’s motion for post-trial relief and affirmed a jury verdict of $30,000 in favor of Joseph J. Balent and George Barto (Owners). Claiming that the City had razed the Owners’ fire-damaged building without giving the Owners prior notice, the Owners had sought damages under 42 U.S.C. § 1983 (Section 1983)¹ for an alleged violation of their right to procedural due process under the 5th and 14th Amendments of the United States Constitution. We affirm the judgment.

ISSUES

On appeal, the City argues: 1) that the question of the City’s liability has already been litigated in a prior eminent domain action and that the Owners were collaterally estopped here from seeking civil rights damages under Section 1983; 2) that the trial judge erred in his jury instructions on Section 1983 damages; and 3) that the evidence was insufficient to permit the jury to find that the City was liable under the federal civil rights statute for failure to give notice to the Owners before destroying their building.

The Owners argue that the judgment in the eminent domain action did not estop them from maintaining the Section 1983 action; that there was sufficient evidence of reckless or wanton conduct to establish a pattern, practice or custom of unconstitutional activity; and that the trial judge correctly charged the jury on the City’s potential liability for a civil rights violation.

BACKGROUND

On March 9, 1980, the Owners’ property, a two-story frame building, was destroyed by fire. One day after the fire, Thomas Hughes, the Chief Budding Inspector for the City, mailed the following form letter notice to the Owners:

On March 9, 1980 fire damaged your building at the above address to such an extent it is a fire, health, and physical hazard to occupants and the public in violation of the Wilkes-Barre City Building Code, Ordinance No. 32 of 1976, and Ordinance No. 16 of 1971 of the Wilkes-Barre Housing Code.

You are hereby ordered to have the building enclosed within ten (10) days of this notice and to correct all violations to comply with the Codes of the City of Wilkes-Barre or have the building razed. This work must be completed not later than April 9, 1980.

If this order is not complied with, it will result in legal action which may result in a fine or imprisonment.

Any person aggrieved by the decision of the Building Inspector may within ten (10) days of this notice appeal to the Board of Appeals for a review of the decision in accordance with the procedures prescribed by the board.

(R.R. 276a.) (Emphasis in original). Owners did not file an appeal.

The City’s Bureau of Housing allegedly sent Owner Barto a letter dated May 18, 1981 in which he was informed that the building must be enclosed by the Owners within 10 days and all violations corrected or the building razed no later than June 16, 1981. The letter (if in fact it was sent) further informed Owner that:

If this order is not complied with on or before June 26, 1981 the above property will be razed by the City of Wilkes-Barre under Wilkes-Barre City Housing Code Ordinance No. 16 of 1971.

(R.R. 259a.) The letter also informed Barto that he had the right to appeal that order within 10 days. However, there was testimony at trial by Barto and by the City’s Assistant Housing Administrator which was sufficient to permit the jury to conclude that the May 18, 1981 letter was never sent. (R.R. 73a, 136a.)

By letter dated June 3, 1981, Owner Barto was again informed that he must correct the code violations by June 10, 1981; but the June letter did not state that the City would raze the building if the Owners failed to correct the violations.

Owners did not take any action to correct the building code violations and on December 14, 1981, the City hired a construction company which proceeded to demolish the building.

Prior to the cause of action which is the subject of this appeal, the Owners had filed a complaint against the City in the Court of Common Pleas of Luzerne County requesting that the court appoint a Board of Viewers pursuant to the Eminent Domain Code to determine the damages incurred in an alleged de facto condemnation of the building. The City filed preliminary objections in the nature of a demurrer which the trial court sustained. The Owners appealed the trial court’s decision to this Court at No. 2180 C.D.1983. We affirmed the court’s order to sustain the preliminary objections and dismiss the complaint. Balent v. City of Wilkes-Barre, 89 Pa.Commonwealth Ct. 578, 492 A.2d 1196 (1984) (Hereinafter “Balent I”). The Supreme Court denied the Owners’ petition for allowance of appeal at No. 792 E.D. Allocatur Docket 1985.

On May 14,1985, the Owners filed a complaint in the instant proceeding against the City in the Court of Common Pleas of Luzerne County. In their complaint, the Owners allege that the actions taken by the City in demohshing their building deprived them of a right, privilege and immunity secured by the 5th and 14th amendments of the U.S. Constitution. Owners sought damages pursuant to Section 1983.

MOTION FOR SUMMARY JUDGMENT

Because the parties quite appropriately proceeded to jury trial following the trial court’s denial of the City’s motion for summary judgment, we will not apply our normal scope of summary judgment review which would have been to determine whether the trial court made an error of law or abused its discretion in its ruling on the motion. See Salerno v. LaBarr, 159 Pa.Commonwealth Ct. 99, 632 A.2d 1002 (1993) for a review of the normal scope of review standards.

Here, we merely determine that the City by filing its motion, preserved for appellate review the question of whether this cause of action is barred under the doctrine of res judicata or collateral estoppel. For res judicata to apply, there must be a concurrence of four conditions: (1) identity of the thing sued upon or for; (2) identity of the causes of action; (3) identity of the person and parties to the action; and, (4) identity of the quality or capacity of the parties suing or being sued. Iwinski v. Commonwealth, State Horse Racing Commission, 85 Pa.Commonwealth Ct. 176, 481 A.2d 370 (1984).

Collateral estoppel will apply only when the issue decided in the prior adjudication was identical with the one presented in the later action; when there was a final judgment on the merits; when the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and, when the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

The City argues that the trial court erred in declining to grant its motion for summary judgment on the issue of collateral estoppel and res judicata on the basis of the prior action filed by Owners. The City contends that the prior eminent domain action litigated all the issues before the trial court in this constitutional tort cause of action.

Specifically, the City argues that it was decided in the prior action that, in demolishing the building, the City had relied upon the emergency provision in the ordinance which allows the building inspector to cause the necessary work to be done where the building poses an actual and immediate danger to life or property; that the Owners had failed to exhaust their administrative remedies to object to the demolition order; that the Owners were given notice that the building posed a safety hazard; that the Owners had been given notice that they could appeal the building inspectors decision to the Board of Appeals; and, that the Owners had no standing to contend that there was a de facto taking of their property.

Neither res judicata nor collateral estoppel applies to this cause of action. While the parties to both causes of action are the same, the prior action between the Owners and the City involved an in rem eminent domain proceeding. In Balent I we held that an “otherwise valid” exercise of the police power does not effectuate a constitutional taking of property for public use. 89 Pa.Commonwealth Ct. at 581, 492 A.2d at 1197. This second lawsuit is one based on theories of trespass and constitutional torts and raises the issue of whether the police power was in fact validly exercised under Section 1983. The eminent domain proceeding did not litigate and decide whether the City violated the Owners’ constitutional rights to due process under the 5th and 14th amendments. The eminent domain proceeding merely determined that the City’s actions in demolishing the Owners’ property were an exercise of the police power and did not amount to a compensatory taking under the Eminent Domain Act. Balent I did not hold that the City’s power was exercised in a valid manner under the federal civil rights statute.

For those reasons, we find that the trial court did not err in holding that the civil rights action was not barred by the unsuccessful eminent domain action.

MOTION FOR COMPULSORY NON-SUIT

The City further argues that the trial court erred in denying its motion for a compulsory non-suit at the close of Owners’ case, i.e. that there was no evidence of a pattern or practice of unconstitutional activity on the part of the City as required for recovery under Section 1983. We will address the merits of the City’s argument regarding the requirements of Section 1983 in the next section of this opinion. Here, however, we will not review the denial of the motion.

Following the completion of the plaintiffs case, the City’s counsel made a motion for compulsory nonsuit. Following the denial of the motion, the City then chose to offer evidence (R.R. 195a), thus rendering moot the question of whether or not the trial court erred in denying the City’s motion for a non-suit. As the Supreme Court has noted:

We hold that the refusal of a motion for nonsuit is not a valid reason for a new trial in this or any case where the defendant offers testimony. A defendant’s right to request a non-suit is based on his offering no evidence, and the court cannot grant a non-suit after the introduction of evidence by the defendant---- If a non-suit motion made at the close of the plaintiffs case is refused by the trial judge, the defendant has an option either to rest on that motion and present no evidence, or put in a case. If the defendant elects to proceed, ... the non-suit stage is over, and the correctness of the court’s ruling is moot.

F.W. Wise Gas Co. v. Beech Creek Railroad Co., 437 Pa. 389, 391-92, 263 A.2d 313, 315 (1970).

JURY CHARGE ON SECTION 1983 LIABILITY

The trial court charged the jury on the issue of the City’s liability under Section 1983 as follows:

To prevail against a municipal corporation, such as the Defendant herein, the City of Wilkes-Barre, under Section 1988; however, the Plaintiffs must show that a governmental policy or custom was responsible for the constitutional violation alleged or was the result of a single act of a high ranking official.

A custom may be entered [sic] from acts or omissions of municipality supervisory officials serious enough to constitute reckless conduct, gross negligence or gross constitutional rights of the Plaintiff, whether or not such custom as [sic] received approval through official decision-making challenges.

Reckless conduct is intentional acting or failing to act in complete disregard of a risk of harm to others which is known or should be known to be highly probable and with a conscious indifference to the consequences. Reckless conduct is acting or failing to act when existing danger is actually known and with an awareness that harm is reasonably certain to occur.

(R.R. at 241-42a.)

A jury charge constitutes reversible error where it is erroneous and harmful to the complaining party. Leaphardt v. Whiting Corporation, 387 Pa.Superior Ct. 253, 564 A.2d 165 (1989). A motion for a new trial should be granted where a reading of the jury charge against the background of the evidence reveals that the jury charge might have been prejudicial to the complaining party. Lilley v. Johns-Manville Corp., 408 Pa.Superior Ct. 83, 596 A.2d 203 (1991). We find that a reading of the jury charge as a whole reveals that the court did not erroneously charge the jury with the law of Section 1983 municipal liability and thereby did not prejudice the City.

The City argues that the trial court erred in its charge to the jury concerning a municipality’s liability for acts of its employees because there was no evidence of a pattern, practice or custom of unconstitutional activity by the City.

In Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court exhaustively examined the legislative history behind the language of Section 1983 and concluded that municipalities could be sued for violating constitutional rights under that section. The Supreme Court concluded as follows:

[T]he language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held hable unless action pursuant to official municipal pohcy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held hable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

Id. at 691, 98 S.Ct. at 2036.

The Supreme Court found that when the execution of official government pohcy or custom inflicts injury, municipal liabihty under Section 1983 may occur. It is not the acts of its employees or agents which creates the liabihty. However, the Court expressly stated that “we have no occasion to address, and do not address, what the full contours of municipal liabihty under [Section] 1983 may be---- [W]e expressly leave further development of this action to another day.” Monell, 436 U.S. at 695, 98 S.Ct. at 2038.

The City pohcy, as set forth in the ordinances, requires written notice to the owners of a property before it can be razed. Section 1009.1 directs the city employees as to the type of notification they must give a property owner when a violation of the Housing Code exists. Section 1009 provides that the minimum notice should be in writing, include a description of the real estate, specify the violations that exist and the remedial action required, allow reasonable time for performance, indicate that an appeal procedure exists and indicate which violations may require a city permit in order to correct the violation. The notice should be given to the property’s owner either by personal delivery, through a notice of violation, by leaving the notice with a responsible person in the family, or by sending the letter certified mail. If the letter is returned to the office unclaimed, notice is to be posted on the property.

The City argues that the jury charge gave the jury the impression that the City could be responsible under a theory of respondeat superior because a City employee violated this policy. We disagree. The jury charge informed the jury that the City could be liable if the Owners showed “that a governmental policy was responsible for the constitutional violation OR was the result of a single act of a high ranking official.” (R.R. at 241-42a.) (Emphasis added).

The May 18, 1981 letter informing the Owners that their building would be razed, which the jury could find the Owners never received, was signed by Joseph Chabala, the City’s Chief Housing and Zoning Officer. We believe that the trial judge could conclude as a matter of law that he was a person “whose edicts or acts may fairly be said to represent official policy.” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir.1993).

Parkway involved a civil rights claim filed against the City of Philadelphia and the Philadelphia Parking Authority (Authority). Parkway is a parking garage which is located on Philadelphia city property leased to the Authority. The land was subleased for 36 years by the Authority to John McShain, Inc., which agreed to build and operate a parking garage on the property. In its complaint, Parkway alleged that Philadelphia and the Authority misused the police power to benefit themselves as landlord and garage owner.

Based on a report it commissioned, Philadelphia determined that Parkway’s sale price is limited by the long-term lease to John McShain, Inc. Philadelphia city officials closed the entire garage without notice, claiming it was in imminent danger of collapse. The closing took place pursuant to a meeting of high Philadelphia city officials and Authority officials at Mayor Wilson Goode’s office. Parkway claimed that the garage was not in imminent danger of collapse and that the City of Philadelphia and the Authority conspired to close the garage to benefit themselves.

The jury and the Third Circuit agreed with Parkway. The jury found that Parkway’s right to due process was violated by the City of Philadelphia. It further found that the Authority and the City of Philadelphia conspired to deprive Parkway of its right to due process. The Third Circuit found that “the jury could have reasonably found that the City’s and the Authority’s actions leading up to the closing of the garage belie a proper motive for the closing.” 5 F.3d at 693. The Court further found that the Mayor ordered the closing and that the jury could properly conclude that the Mayor knew of and personally possessed improper motives for closing the garage.

To hold the City of Wilkes-Barre liable for municipal policy or procedure under Parkway, “scienter-type evidence must have been adduced with respect to a high-level official determined by the [trial] court, in accordance with local law, to have final policymaking authority in the areas in question.” Parkway, 5 F.3d at 692 (quoting Simmons v. Philadelphia, 947 F.2d 1042, 1063 (3d Cir.1991)). Moreover, under Parkway, th& plaintiff must produce sufficient evidence that the high-ranking official knew of or recklessly disregarded relevant facts concerning the improper actions taken by the City. Recklessness is “ ‘[f]ailure of a municipality to fulfill a duty to guard against foreseeable harm when its officials have knowledge of circumstances making that harm likely.’ ” Parkway, 5 F.3d at 693 (quoting Simmons, 947 F.2d at 1090).

The Chief Housing and Zoning Officer, Joseph Chabala, signed the May 18, 1981 letter informing the Owners that their budding would be razed unless they complied with the ordinance. The jury could reasonably find that Owners never received that letter. Joseph Chabala never determined that the Owners had received that letter before the demolition of their building occurred.

The Supreme Court has stated that “an unconstitutional government policy could be inferred from a single decision taken from the highest officials responsible for setting policy in that area of the government’s business.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). Only persons who have “final policymaking authority” may subject the government to Section 1983 liability. Whether one has “final policymaking authority” is a question of state law, but “the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city’s business.” Id. at 123, 108 S.Ct. at 924.

In Jett v. Dallas Independent School District, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), the Supreme Court stated that “ Whether a particular official has ‘final policy making authority* is a question of state law.’ ” Jett, 491 U.S. at 737, 109 S.Ct. at 2723 (quoting St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). The Court further stated in Jett that “the identification of those officials whose decisions represent the official policy of the local governmental unit itself is a legal question to be resolved by the trial judge before the case is submitted to the jury____ [T]he trial judge must identify those officials or governmental bodies who speak with final policy-making authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” Jett, 491 U.S. at 737, 491 U.S. at 2724. See also, Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.1984).

In his charge to the jury, the trial judge stated that to prevail against the City, the plaintiffs must show either a governmental policy or custom or that the constitutional violation was a result of a single act of a high-ranking official. It is implicit in this charge that the trial judge determined that the jury reasonably could find that the Chief Housing and Zoning Officer, Joseph Chabala, was a high-ranking policy-making official on whose actions the jury could impute municipal liability to the City. Therefore, the jury charge was not erroneous and the trial judge did not err in denying the City’s motion for a new trial.

JUDGMENT NOTWITHSTANDING THE VERDICT

Our scope of review of a denial of a motion for judgment notwithstanding the verdict is limited to determining whether the trial court abused its discretion or committed legal error. United States Fidelity & Guaranty Co. v. Royer Garden Center and Greenhouse Inc., 143 Pa.Commonwealth Ct. 31, 598 A.2d 583 (1991), petition for allowance of appeal denied, 530 Pa. 663, 609 A.2d 170 (1992). We must view the record in a light most favorable to the Owners as verdict winners and grant them every inference. Id.

The City contends that the trial court erred by failing to enter a judgment notwithstanding the verdict in its favor arguing that the Owners failed to establish a pattern, policy or custom of unconstitutional activity on its part. We disagree and find that the evidence was sufficient to sustain a jury finding of a Section 1983 violation.

The evidence showed that the Owners received one notice in March concerning their building and another notice in June. The June letter did not inform the Owners of their right to appeal the building inspector’s determination. In fact, the portions of the form letter which would have given appeal rights had been crossed out on the form. (R.R. at 263a.) Neither notice informed the Owners that failure to fix the violations would result in their building being razed. Further, there is evidence which the jury could believe that the Owners never received the May notice informing them that their building would be razed by the City if they did not comply with the ordinance. The City did not even post notice on the property as required under the ordinance. Also, the City did not act quickly in demolishing the building. It waited until December to raze the building without providing the Owners with any last minute notice despite the fact that one of the Owners often visited the building inspector’s office.

Finally, because the City never perfected the notice as required under the ordinance, it essentially entrusted the building official with the final decision-making authority to raze the building, which he exercised.

Based on the evidence, we believe the jury could find a pattern or a series of acts by the City which denied the Owners their constitutional rights. The jury could also find gross negligence by a high-ranking, policy-making official. Therefore, the trial court did not abuse its discretion in refusing the City’s motion for judgment notwithstanding the verdict.

For the reasons stated above, we affirm the order of the Court of Common Pleas of Luzerne County denying the City’s motions for post-trial relief and entering judgment in favor of the Owners.

ORDER

AND NOW, this 22nd day of September, 1994, the order of the Court of Common Pleas of Luzerne County at No. 5123-C of 1983 is hereby affirmed.

1 . § 1983 Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.