Win & Son, Inc. v. City of Philadelphia

162 F. Supp. 3d 449, 2016 WL 540819, 2016 U.S. Dist. LEXIS 17137
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 11, 2016
DocketCIVIL ACTION No. 13-5977
StatusPublished
Cited by22 cases

This text of 162 F. Supp. 3d 449 (Win & Son, Inc. v. City of Philadelphia) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Win & Son, Inc. v. City of Philadelphia, 162 F. Supp. 3d 449, 2016 WL 540819, 2016 U.S. Dist. LEXIS 17137 (E.D. Pa. 2016).

Opinion

MEMORANDUM

McHUGH, United States District Court Judge.

This case concerns the obligations of a municipality when it seeks to condemn and demolish privately-ownéd buildings that are in imminent danger of collapse. Plaintiffs Win & Son, Inc. and Huan Yi Yu brought this action against the City of Philadelphia (the “City”), along with government contractors, USA Environmental Management, Inc. (“USAEM”) and Pedro Palmer Construction, Inc. (“PPC”), alleging that Defendants improperly demolished a warehouse owned by Plaintiffs and in the process destroyed a collection of valuable art and artifacts stored within. The parties have engaged in extensive discovery, and each Defendant now moves for Summary Judgment on all counts against it. Plaintiffs Cross-motion for Summary Judgment on Counts II, III, IV, V, VII, and IX. This Memorandum addresses those Motions as they pertain to the City and to the Constitutional claims against USAEM.

I. Statement of Facts1

Plaintiff Huan Yi Yu and his wife, Jian-hong Xu, are officers of the Win & Son [453]*453company.2 Yi Yu 9/11/14 Dep. at 14:3-15:18. In 2005, Win & Son purchased a warehouse property at 1325 W. Albanus Street in the Logan section of Philadelphia (“the property”) for $150,000, which they used for storage purposes. Plaintiffs claim that they used the warehouse to store several thousand pieces of -valuable Chinese antiques and precious rocks, as well as electronic equipment and a forklift, worth more than $10 million. Compl. at ¶¶ 16-18. Defendants do not dispute that some personal property was stored inside of the warehouse at the time of the events in question, but the authenticity and value of those goods is hotly contested and the subject of another motion pending before this court. Although the couple resided in New York, they periodically visited Philadelphia to check on the property. Xu Dep. at 61:24-62:25.

On the evening of March 16, 2011, the City’s Department of Licenses and Inspections (“L&I”) was notified that there had been a collapse reported at the property. The on-duty inspector, Gerald James, was dispatched to the property, and police responded to the scene. James Dep. at 45:18-46:21. James inspected the property and completed an Emergency Duty Report detailing his findings. Emergency Duty Report, City’s Ex. F. His report noted that the property looked vacant at the time and had boarded-up windows, and approximately 500 feet of the front wall fagade of the building had collapsed onto the sidewalk. He assessed the property and determined that the structural integrity of the building was compromised and should be considered “imminently dangerous.”3 He checked “yes” indicating that a violation of the Philadelphia Property Maintenance .Code should be issued for the property, and the property should be condemned. He also recorded on the form that he posted a bright orange “imminently dangerous” poster on the side of the building, which listed the date of the inspection and stated that the property may be demolished if not repaired.4

Once James entered the information from his report into L&I’s case management system, the case was referred to the Contractual Services division, and notice of the violation was automatically generated to be sent to the record owners of the property. The notice stated that the property had been declared imminently dangerous in accordance with the Philadelphia Property Maintenance Code because the front wall was “bulged and in danger of collapse.” It instructed Win & Son that it must repair or demolish the structure, or [454]*454it may appeal the violation within five days. The violation warned, “If you fail to comply with this order forthwith, the City may demolish the structure.” March 16 Violation Notice, City’s Ex. H.

This notice, dated March 16, 2011, was sent to Win & Son at 1325 W. Albanus Street via certified and regular mail. The Complaint alleged that at all times material to the present action, “Plaintiff Win and Son, LLC had address for service listed as 136 Bowery Street, Unit 705, New York, New York 10013,” and the notice should have been sent there. Compl. at ¶ 19. However, Plaintiff Huan Yi Yu admitted in his deposition that this address was not established until June 2012, after the events in question. Yi Yu 9/12/14 Dep. at 250:3. At the time the notice was issued, the deed recording the sale of the property listed the owner as Win & Son, with the company’s address as 1325 W. Albanus Street. 2005 Deed for 1325 W. Albanus, City’s Ex. C. The company’s registration with the State of Pennsylvania also lists the entity’s address as 1325 W. Albanus Street. Pennsylvania Dept. State Corp. Search, City’s Ex. A. In their Motion for Summary Judgment, Plaintiffs recognize these facts and appear to have conceded that the only address listed on file with the City was 1325 W Albanus Street.

The copy of the notice sent via certified mail was returned to L&I with a sticker stating:

RETURN TO SENDER
NO SUCH NUMBER
UNABLE TO FORWARD

The sticker is dated March 25, 2011. City’s Ex. I. City records do not reflect that the violation notice sent via regular mail was similarly returned. The City took no further actions to provide notice of the violation.

On April 10, 2011, Plaintiffs wife Jian-hong Xu made a brief visit to the warehouse. Plaintiff Yu was not present because he was in China at the time. She reported that she did not see an orange poster on the side of the building, and while she spent approximately ten minutes in the warehouse, she stated she did not check the mail because she was in a hurry. Xu Dep. at 65:3-19, 77:6-22. Ms. Xu stated at her deposition that she did notice a small hole in the roof during this visit, but she did not report the hole to her husband or make any arrangements to repair it. Xu Dep. at 74:22-76:16. After a break during testimony, she then denied seeing such a hole. Xu Dep. at 90:6-11.

The property’s condition continued to decline, and on June 18, 2011, the City again inspected the structure. Photographs taken on that day show a large amount of trash (including a large number of bricks and a mattress) on the sidewalk, a large hole in one exterior wall and the roof, a large plant growing out of a window, and bulging and cracking exterior walls. City’s Ex. M. It bears emphasis that this later inspection was a full three months after the City documented approximately 500 feet of collapsed wall along the front of the building.

If an imminently dangerous violation is issued and the owner does not respond within ten days, the building may be placed on the City demolition list, which is triaged with the most dangerous buildings being demolished first. Phila. Code § PM-308.4; Emergency Services and Abatement Unit (“ESAU”) Field Manual, City’s Ex. K at 4-6. Once the City decides to demolish a structure, it typically solicits bids from demolition contractors to perform the work. The City maintains a list of contractors that have submitted paperwork and gone through a procurement process to be pre-approved, and only those contractors are invited to bid. Mulderig Dep. at 33:25-38:2. The City’s standard demolition bid process involves a meeting at the site dur[455]*455ing which approved contractors can assess the property, then bids are faxed to the City and the winning bidder must begin demolition within 24 hours.

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Cite This Page — Counsel Stack

Bluebook (online)
162 F. Supp. 3d 449, 2016 WL 540819, 2016 U.S. Dist. LEXIS 17137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/win-son-inc-v-city-of-philadelphia-paed-2016.