D. Erastov v. City of Philadelphia, Philadelphia Sheriff's Office

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dmitry Erastov, :
Appellant :
:
v. : No. 638 C.D. 2021
: Argued: June 23, 2022
City of Philadelphia, Philadelphia Sheriff’s :
Office :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: July 22, 2022
Dmitry Erastov (Erastov) appeals from the orders dated January 19, 2021, and
entered January 22, 2021, in the Philadelphia County Court of Common Pleas
(Common Pleas), denying his motion for partial summary judgment and granting
summary judgment in favor of the City of Philadelphia and Philadelphia Sheriff’s
Office (collectively, the City). Erastov challenges Common Pleas’ conclusion that
governmental immunity protects the City from suit, arguing this action falls under
an exception to immunity because it involves the City’s allegedly negligent care,
custody, or control of real property in its possession pursuant to Section 8542(b)(3)
of the Judicial Code (Code), 42 Pa.C.S. § 8542(b)(3). After review, we affirm.
I. Background and Procedural History
Erastov purchased a property in Philadelphia (the Property) via a sheriff sale
that took place on July 24, 2018. Reproduced Record (R.R.) at 709, 729, 764.1 An
entity named “2202 N Bouvier St, LLC” successfully bid on the Property and then
assigned its bid to Erastov. Id. at 539. On August 24, 2018, Erastov paid the tax
liens against the Property and filed paperwork with the Sheriff’s Office to finalize
the sale. Id. at 710, 730. The Sheriff’s Office acknowledged the deed to the Property
on February 15, 2019, and the deed was recorded on March 6, 2019. Id. at 545, 711,
730. Meanwhile, on or about December 21, 2018, the City inspected the structure
located on the Property and posted notice on an exterior window indicating that it
was imminently dangerous. Id. at 563, 582-83, 711. On March 25, 2019, the City
performed another inspection, deemed the structure in danger of collapse, and posted
notice on the same window that it would demolish the structure if the situation was
not addressed.2 Id. at 711, 730, 784-85. The City mailed notice to Erastov warning
him of the possible demolition, which was delivered and signed for on April 5, 2019.
Id. at 730-31, 790-97. The City ultimately began demolishing the structure on or
about April 22, 2019, and billed Erastov for the cost of demolition. Id. at 711-12,
728-31.
Erastov commenced this action by writ of summons on September 3, 2019.
In Erastov’s fourth amended complaint, filed June 30, 2020, he included counts of
negligence, breach of contract, vicarious liability, negligent demolition, and unjust
1
Erastov failed to include a lowercase “a” following the page numbers in his reproduced record,
in violation of our Rules of Appellate Procedure. See Pa.R.A.P. 2173.
2
The photographs in the reproduced record depicting the structure and the notices the City posted
on it are of poor quality, but we have been able to view clearer versions of the photographs in the
original record and the City’s supplemental reproduced record.
2
enrichment. Erastov alleged he attempted to obtain a permit to perform work on the
Property prior to the demolition but was unable to do so because the Sheriff’s Office
delayed in transferring the deed to him. Id. at 514-15. Erastov also alleged that he
did not receive notice regarding the Property’s condition. Id. at 515. Erastov cited
Section 31.2 of what is commonly known as the Municipal Claims and Tax Liens
Act (Act).3 Under Section 31.2(b) of the Act, “[d]eeds for property . . . shall not be
executed, acknowledged and delivered any sooner than thirty days nor later than one
hundred and twenty days after the purchaser pays the balance due to the sheriff
. . . .”4 53 P.S. § 7283(b). The City filed an answer and new matter on July 19, 2020.
The City argued that it was immune from suit pursuant to Section 8541 of the Code,
42 Pa.C.S. § 8541. Further, the City challenged Erastov’s allegation that he did not
receive notice of the Property’s condition, explaining that it had posted notice at the
Property and mailed notice to Erastov’s address, which was delivered and signed for
weeks before demolition began. R.R. at 563-65. Erastov filed a motion for partial
summary judgment as to his negligence, negligent demolition, and unjust enrichment
counts on September 8, 2020. The City filed its own motion for summary judgment
that same day. The parties filed responses to the opposing motions for summary
judgment on October 8, 2020.
By orders dated January 19, 2021, and entered January 22, 2021, Common
Pleas denied Erastov’s motion for partial summary judgment and granted summary
judgment in favor of the City. Common Pleas explained in a subsequent opinion
that the City was immune from suit under Section 8541 of the Code. Common Pleas
3
Act of May 16, 1923, P.L. 207, as amended, added by the Act of March 15, 1956, P.L. (1955)
1274, 53 P.S. § 7283.
4
The City acknowledges that Section 31.2 applies in this case. See City’s Br. at 6 n.3, 6 n.4.
3
Op., 10/12/21, at 4-5. Although Erastov argued his claims could proceed under the
Code’s real property exception at Section 8542(b)(3), Common Pleas rejected
Erastov’s argument. Id. at 5. Common Pleas first addressed Erastov’s vicarious
liability count, which he had lodged against Philadelphia for the actions of the
Sheriff’s Office, in relevant part. Common Pleas explained that this count was
“redundant,” because Philadelphia and the Sheriff’s Office were not separate legal
entities. Id. at 3 n.2 (citing Pa. Const. art. IX, § 13(a); Monastra v. Delaware Cnty.
Sheriff’s Off., 49 A.3d 556, 558 (Pa. Cmwlth. 2012)). Regarding Erastov’s breach
of contract count, Common Pleas reasoned that Section 8542 applied to negligence
claims only and did not encompass contract claims. Id. at 5 n.3 (citing Sims v. Silver
Springs-Martin Luther Sch., 625 A.2d 1297, 1302 (Pa. Cmwlth. 1993)). Similarly,
Common Pleas reasoned that the language of Section 8542 did not encompass
Erastov’s unjust enrichment or negligent demolition counts. Id. at 5 n.3, 7 n.5
(collecting cases). Turning to Section 8542(b)(3), Common Pleas observed that the
exception applied to real property in a local agency’s “possession.” Id. at 5. It
explained that the prior owner of the Property retained possession until the
redemption period expired, at which point possession passed to Erastov, and that the
City never possessed the Property. Id. at 6. Thus, Common Pleas concluded that
there was no genuine dispute as to any material fact regarding the City’s immunity
defense, and that the City was entitled to judgment as a matter of law. Id. at 4-7.
4
Erastov appealed.5 Common Pleas ordered Erastov to file a concise statement
of errors complained of on appeal within 21 days, and Erastov timely complied.6 On
appeal, Erastov raises numerous claims challenging Common Pleas’ conclusion that
the City is immune from suit pursuant to Section 8541 of the Code, and that he has
not established the requirements of Section 8542(b)(3).
II. Discussion
This Court’s standard of review on appeal from an order granting or denying
summary judgment is de novo, and our scope of review is plenary. Dobson Park
Mgmt., LLC v. Property Mgmt., Inc., 203 A.3d 1134, 1139 n.11 (Pa. Cmwlth. 2019)
(citing Seda–Cog Joint Rail Auth. v. Carload Express, Inc., 185 A.3d 1232, 1236
(Pa. Cmwlth. 2018)). Summary judgment is appropriate when review of the record
reveals that there are no genuine issues of material fact, and that the moving party is
entitled to judgment as a matter of law. Montgomery Hosp. and Med. Ctr. v. Bureau
of Med. Care Availability & Reduction of Error Fund (MCARE Fund), 201 A.3d
909, 912 n.8 (Pa. Cmwlth. 2019) (quoting Aria Health v. Med. Care Availability &
5
Erastov initially appealed to our Commonwealth’s Superior Court. The City filed an application
to transfer the case to this Court, which the Superior Court granted. See 42 Pa.C.S. § 762(a)(7)
(providing that the Commonwealth Court has exclusive jurisdiction over “[m]atters conducted
pursuant to Subchapter C of Chapter 85,” which includes the governmental immunity provisions
of the Code); 42 Pa.C.S. § 5103(a) (if an appeal is filed in a court of the Commonwealth that lacks
jurisdiction, the court should not quash the appeal “but shall transfer the record thereof to the
proper tribunal of this Commonwealth, where the appeal . . . shall be treated as if originally filed
in the transferee tribunal on the date when the appeal . . . was first filed” in the court without
jurisdiction).
6
Erastov also filed for reconsideration, which Common Pleas did not expressly grant within 30
days. Common Pleas denied reconsideration after the 30-day period lapsed. See Fulton v. Bedford
Cnty. Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth. 2008) (“[T]he trial court may
consider a motion for reconsideration only if the motion for reconsideration is filed within [30]
days of the entry of the disputed order. Unless the court enters an order granting reconsideration
within the 30-day period, the power to grant reconsideration is lost.”) (citations and quotation
marks omitted).
5
Reduction of Error Fund, 88 A.3d 336, 340 (Pa. Cmwlth. 2014)). We must view the
record in the light most favorable to the nonmoving party and resolve all doubts as
to the presence of a genuine issue of material fact against the moving party. Ladley
v. Pa. State Educ. Ass’n, 269 A.3d 680, 686 n.6 (Pa. Cmwlth. 2022) (en banc)
(quoting Albright v. Abington Mem’l Hosp., 696 A.2d 1159, 1165 (Pa. 1997)).
The Code provides, subject to exceptions, that “no local agency shall be liable
for any damages on account of any injury to a person or property caused by any act
of the local agency or an employee thereof or any other person.” 42 Pa.C.S. § 8541.
A “local agency” is a “government unit other than the Commonwealth government,”
which includes the City. 42 Pa.C.S. § 8501; see Maloney v. City of Philadelphia,
535 A.2d 209, 211 (Pa. Cmwlth. 1987). Section 8542 of the Code lists exceptions
to governmental immunity that apply when certain conditions are met. 42 Pa.C.S. §
8542(a). Section 8542(a)(1) provides that the damages at issue in the case must be
of a type that “would be recoverable under common law or a statute creating a cause
of action if the injury were caused by a person not having available a defense” based
on governmental or official immunity. 42 Pa.C.S. § 8542(a)(1). Section 8542(a)(2),
in relevant part, provides that the injury at issue must be the result of “the negligent
acts of the local agency or an employee thereof acting within the scope of his office
or duties with respect to one of the categories listed in” Section 8542(b). 42 Pa.C.S.
§ 8542(a)(2). At dispute in this appeal is the Code’s real property exception found
at 42 Pa.C.S. § 8542(b)(3). Section 8542(b)(3) denies a local agency governmental
immunity in actions related to “[t]he care, custody or control of real property in the
possession of the local agency,” with certain reservations not applicable here. 42
Pa.C.S. § 8542(b)(3).
6
As we explained above, Common Pleas determined that the City was immune
from suit pursuant to Section 8541 of the Code. Although Erastov purports to raise
several claims for our review, each of his claims pertain to this central issue. Erastov
challenges the conclusion that the City is immune from suit, arguing his claims fall
within the Section 8542(b)(3) exception. Erastov’s Br. at 13-32. Notably, Erastov
assails Common Pleas’ determination that the City was never in “possession” of the
Property. Id. at 14-18, 29, 32. He argues that it was the duty of the Sheriff’s Office
to transfer the deed of the Property to him, and that the City was in “possession” of
the Property until the Sheriff’s Office completed its duty. Id. at 14-18, 29.
We conclude that Erastov has failed to satisfy the requirements of the Section
8542(b)(3) exception. We reach this conclusion because a review of our case law
demonstrates (1) that the case does not involve the sort of alleged negligence relating
to real property that the Code encompasses, and (2) that the City did not exert enough
control over the Property to “possess” it. We discuss both determinations in turn.
At the outset, our Courts have read the Section 8542(b)(3) exception narrowly
since its passage in 1980. See Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123
(Pa. 1987) (reasoning that Section 8542(b)(3) “must be narrowly interpreted given
the expressed legislative intent to insulate political subdivisions from tort liability”)
(citations omitted). This Court has explained that Section 8542(b)(3) applies to “an
injury caused by the real property itself, or the negligent care, custody or control of
it.” Geier v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, 153 A.3d 1189, 1195
(Pa. Cmwlth. 2017) (citing Mandakis v. Borough of Matamoras, 74 A.3d 301 (Pa.
Cmwlth. 2013)). In Brewington for Brewington v. City of Philadelphia, 199 A.3d
348, 349-50 (Pa. 2018), our Supreme Court determined that the Section 8542(b)(3)
exception applied where a boy tripped and fell into a concrete wall during a school
7
gym class. Importantly, the Court reiterated the necessity of interpreting Section
8542(b)(3) narrowly and explained that it “take[s] comfort in the express limitation”
of the exception; namely, that it applies only to “acts, or failure to act, which make
the property unsafe for ‘the activities for which it is regularly used, for which it is
intended to be used, or for which it may reasonably be foreseen to be used . . . .’”
Id. at 356-58 (quoting Mascaro, 523 A.2d at 1124).
In contrast to the narrow construction of the Code that our precedent demands,
Erastov argues for a broad and attenuated construction. Erastov does not allege that
the Property itself caused an injury, or even that the City’s negligent care, custody,
or control caused damage to the Property. Instead, he argues the Sheriff’s Office did
not timely transfer the deed to him after the sheriff sale, which impaired his ability
to repair the Property before the City began demolition. Erastov cites no authority
to support the proposition that Section 8542(b)(3) applies to the handling of a sheriff
sale. Moreover, the only case we are aware of that addressed this idea found it
meritless. In Taylor v. Washington County, 499 A.2d 1145 (Pa. Cmwlth. 1985), the
local tax claim bureau failed to timely advertise a sheriff sale at which the appellant
purchased property, and the equitable owners of the property petitioned successfully
to set the sale aside. The appellant argued Section 8542(b)(3) applied, and this Court
rejected that argument, once again emphasizing our narrow construction of the
exception and its limited application. Id. at 1146 (quoting Vann v. Bd. of Educ. of
the Sch. Dist. of Phila., 464 A.2d 684, 686 (Pa. Cmwlth. 1983)). We conclude,
therefore, that the City did not engage in the type of alleged negligent actions with
respect to the “care, custody or control of real property” that Section 8542(b)(3)
encompasses. 42 Pa.C.S. § 8542(b)(3).
8
Further, we agree with Common Pleas that this case does not involve property
“in the possession of” the City. Id. Erastov proposes that the City had possession
of the Property by virtue of its control over the deed. Our case law, however, reveals
this issue to be more nuanced. This Court has defined “possession” for purposes of
Section 8542(b)(3) as “‘total control over the premises by the local agency; limited
control or mere occupation for a limited period of time is insufficient to impose
liability.’” Glencannon Homes Ass’n, Inc. v. N. Strabane Twp., 116 A.3d 706, 723
(Pa. Cmwlth. 2015) (en banc) (quoting Sweeney v. Merrymead Farm, Inc., 799 A.2d
972, 977 (Pa. Cmwlth. 2002)).
While the City arguably exercised some control over the Property, in that the
Sheriff’s Office oversaw the sheriff sale, this was limited control at most. In sheriff
sales conducted under Section 31.2 of the Act, prior owners receive the benefit of a
“redemption” period, during which they can pay the amount bid at the sale as well
as any taxes and municipal claims, among other costs, to preserve ownership of their
properties for themselves. 53 P.S. § 7283; Section 32(a) of the Act, 53 P.S. §
7293(a). This period can continue even after the acknowledgment of the deed,
depending on the property at issue. 53 P.S. § 7293(a), (c); U.S. Bank N.A. v. Manu,
207 A.3d 415, 423-24 (Pa. Cmwlth. 2019). The redemption period continues for
nine months after the acknowledgment, except where the property is “vacant,” in
which case “there shall be no redemption . . . by any person after the date of the
acknowledgment . . . .”7 53 P.S. § 7293(a), (c). We have observed that the prior
owner of property in a Section 31.2 sheriff sale “may continue in possession of the
property,” while a purchaser “merely holds defeasible title in the property until the
7
Property is vacant “unless it was continuously occupied by the same individual or basic family
unit as a residence for at least ninety days prior to the date of the sale and continues to be so
occupied on the date of the acknowledgment of the sheriff’s deed therefor.” 53 P.S. § 7293(c).
9
redemption period expires. Upon the expiration of the redemption period, the
purchaser holds absolute title to the property . . . .” U.S. Bank, 207 A.3d at 423 n.18
(quoting In re Pittman, 549 B.R. 614, 624 (Bankr. E.D. Pa. 2016)).
Applying these principles to the matter at bar, the redemption period for the
Property continued at least until the acknowledgment of the deed on February 15,
2019. 53 P.S. § 7293(a), (c). Before then, the Property’s prior owner could continue
in possession of the Property, while Erastov had defeasible title.8 The prior owner
could also prevent the sheriff sale from taking effect through the redemption process.
Once the redemption period ended, be that at the time of acknowledgment or nine
months later, Erastov held absolute title to the Property.9 Under these circumstances,
the City did not have total control of the Property, as our case law regarding Section
8542(b)(3) requires. Glencannon Homes, 116 A.3d at 723. As such, the Property
was never “in the possession of” the City. 42 Pa.C.S. § 8542(b)(3).
III. Conclusion
For the above reasons, we agree with Common Pleas that the City is immune
from suit pursuant to Section 8541 of the Code, and that Erastov has failed to meet
the requirements of the Section 8542(b)(3) exception. We therefore affirm Common
Pleas’ orders dated January 19, 2021, and entered January 22, 2021, which denied
8
While Common Pleas refers to the Property’s “prior owner” in its opinion, and we do the same
here for ease of discussion, we acknowledge that the record indicates the prior owner is deceased.
See R.R. at 1122 (listing the Property’s record owner as “[prior owner], deceased and any and all
heirs known and unknown”) (capitalization omitted). Our review does not reveal the involvement
of an estate or the number of any possible heirs.
9
As noted, the record contains photographs of the Property prior to the demolition. Given the
dilapidated state of the structure on the Property, it is reasonable to presume that the Property was
vacant, and that the redemption period ended at the time of acknowledgement.
10
Erastov’s motion for partial summary judgment and granted summary judgment in
favor of the City.
______________________________
STACY WALLACE, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dmitry Erastov, :
Appellant :
:
v. : No. 638 C.D. 2021
:
City of Philadelphia, Philadelphia Sheriff’s :
Office :
ORDER
AND NOW, this 22nd day of July, 2022, the orders of the Philadelphia
County Court of Common Pleas, dated January 19, 2021, and entered January 22,
2021, are hereby AFFIRMED.
______________________________
STACY WALLACE, Judge