Win & Son, Inc. v. City of Philadelphia

178 F. Supp. 3d 234, 2016 WL 1535694, 2016 U.S. Dist. LEXIS 51114
District Court, E.D. Pennsylvania·Decided April 15, 2016·No. CIVIL ACTION No. 13-5977·Published·Cited by 4 cases

Opinion

MEMORANDUM

MCHUGH, Judge.

This case arises out of the City-ordered demolition of a warehouse building that Plaintiffs were using at the time to store imported art and artifacts.1 It raises a unique issue about the duty, if any, owed by a demolition contractor to the owner of a condemned property. The facts of the case are set forth in a prior Memorandum, available at Win & Son, Inc. v. City of Philadelphia, 162 F.Supp.3d 449, No. 13-5977, 2016 WL 538213 (E.D.Pa. Feb. 11, 2016). For present purposes, the central fact is that the property in question had been deemed imminently dangerous by the City of Philadelphia, and Defendants were contracted by the City for immediate demolition.

Remaining before the Court are separate Motions for Summary Judgment on [239] all counts filed by Defendants USAEM and PPC (hereinafter “Defendants”), and a Cross-Motion for Summary Judgment on Counts VII and IX by Plaintiffs.

I. Unintentional Torts

A. Count I: Negligent Demolition

Plaintiffs assert two negligence counts against Defendants. The first is labeled “Negligent Demolition,” and it asserts that “Defendants ... by the authority granted to Defendants as private entities by contract, had a duty to provide the Plaintiffs, property owners, "with notice of any alleged code violations and the opportunity to correct such violations or repair any structural concerns prior to the premises at 1325 West Albanus Street being demolished,” and that Defendants “breached their duty to provide Plaintiffs with actual and proper notice.” SAC at ¶¶ 62-63.

In practical terms, Plaintiffs seek to take a traditional obligation of governmental entities — to give notice to citizens before interfering with their private property — and extend the notice requirement to demolition contractors as well. This Court previously dismissed this same claim against two other contractors hired by the City in relation to the demolition, finding:

the law plainly requires L&I to provide notice to a building owner regarding code violations and any impending demolition of the owner’s building. In contrast, Plaintiffs have not identified any legal authority that imposes a similar duty to notify on contractors that L&I or the City hires in connection with any demolition.... We therefore conclude that Plaintiffs have failed to plausibly allege that [contractors] Mr. D’s or Syn-ertech had a duty to provide the Plaintiffs with notice of any code violations or the impending demolition.

Court’s February 18, 2014 Order at 11-12. Once again, Plaintiffs have not cited any legal authority that would justify placing the burden of giving notice on a private contractor.

In reality, such a duty would be impractical, as the record demonstrates private contractors would have no means to verify information about the owners of any particular property, or the existence of code violations, aside from the records of the City itself. See Mulderig Dep. at 144-45. The evidence in this case clearly indicates that Defendants relied upon the City’s representations. The City was present at the demolition site for an emergency “curbside” bid. It had already declared the property imminently dangerous, and the building’s appearance, documented in the photos taken that day, was such that there would be no reason to question that determination. The duty urged by Plaintiffs would in effect render the demolition contractors, “quality control” for the city. To embrace such a duty would not only be paralyzing to the contractor, who would be compelled to do an independent and comprehensive records search before proceeding with a demolition, but inimical to public safety because of delay. Therefore, consistent with prior orders in this case, Defendants’ Motions for Summary Judgment are both granted as to Count I.

B. Count VI: Negligence

Count VI asserts a separate tort law claim against Defendants, labeled simply “Negligence,” and it alleges Defendants breached a duty of care with respect to Plaintiffs’ personal property stored within the warehouse. Specifically, Plaintiffs argue that the contractors had a “duty to conduct the demolition with reasonable care and in accordance with the City’s Master Demolition Specifications.” Pis.’ Opp’n Def. USAEM’s Mot. Sum. J. at 8. More particularly, they allege that such reasonable care would require contractors to “make provisions for Plaintiffs personal property” and avoid “destroying and/or [240] discarding” the items contained in the warehouse. Pis.’ Statement of Undisputed Facts at ¶¶ 56, 62.

The Demolition Specifications are not a model of clarity. They require the contractor at completion of the work to remove from the site all accumulated materials and leave the site in a clean condition. Demolition Specifications at § 3.18. The demolition is not considered complete, and contractors are not paid, until a City Inspector verifies that this has occurred. However, the Demolition Specifications also provide:

All materials of any nature removed from within the limits of the site, except public utility property, private property, and building corner stones, shall become the property of the Contractor, and shall be removed from the site as it accumulates. No material pending sale shall be permitted to be stored on or adjacent to the site of the work other than the material to be used for cellar fill. No public sale of material shall be permitted from the site.

Demolition Specifications at § 3.4 (emphasis added).

The cryptic phrase “except ,.. private property” certainly supports the view that the owner of the building retains rights over its contents. But the Specifications themselves shed no light on what, if any, responsibility the contractor has to preserve such property. They do, however, limit the contractor’s options for doing so because no material of any kind can be stored at the site, and by work’s end the site must be entirely clear.

Neither Plaintiff nor Defendants have identified any legal authority defining the obligation .of a demolition contractor regarding the contents of an imminently dangerous building. Nor has the Court. I am therefore painting on a blank canvas. I agree with Plaintiffs that under Pennsylvania law, novel questions of duty should be decided using the factors outlined by the Supreme Court in Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000). These are: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” Id.

Regarding the first factor, Defendants did not undertake to enter into any direct relationship with Plaintiffs. The demolition contractors were present on commercial property owned by Plaintiffs only because the City of Philadelphia exercised its power to protect public safety. The City owed a duty to Plaintiffs, but that duty flowed from its status as an entity exercising governmental authority.

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Win & Son, Inc. v. City of Philadelphia, 178 F. Supp. 3d 234, 2016 WL 1535694, 2016 U.S. Dist. LEXIS 51114 (E.D. Pa. 2016).

178 F. Supp. 3d 234 (Win & Son, Inc. v. City of Philadelphia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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