IN THE COMMONWEALTH COURT OF PENNSYLVANIA Doris E. Vermeychuk, Appellant v. City of Chester, Mr. Wendell N. Butler, Mayor, City of Chester; Ms. Mary Tull, Esquire, Director of Public Safety, City of Chester and Mr. David N. Sciocchetti, Director, Chester Economic Development Authority : : : : : : : : : : : No. 1603 C.D. 2007 : Submitted: February 8, 2007
HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: April 1, 2008
Doris E. Vermeychuk (Vermeychuk) appeals from the September 13, 2007 Order of Honorable James F. Proud of the Court of Common Pleas of Delaware County (Trial Court), granting motions for Summary Judgment filed by the City of Chester, Wendell N. Butler, Mayor, City of Chester, Mary Tull, Director of Public Safety, City of Chester, and David N. Sciocchetti, Director, Chester Economic Development Authority (Appellees). The following lengthy factual background underlies the present appeal. The City of Chester was informed, by letter from the City Engineer dated April 15, 2005, directed to the attention of Mary Tull, Director of Public Safety,
that a property located at 314 E. 9th Street, Chester, PA had collapsed into the east wall of the adjacent westerly building, and the remainder of the collapsed structure posed an imminent danger to the occupants of the buildings on either side, specifically 312 and 316 E. 9th Street. The City Engineer recommended the immediate demolition of 314 E. 9th Street, with evacuation of the occupants of the other two buildings. Vermeychuk is the owner of the property, a rental property, located at 316 East 9th Street (Property). The Mayor directed the City Engineer to solicit bids for the emergency demolition of 314 E. 9th Street, and the City awarded the demolition to Savoy Enterprises, Inc. (Savoy), which performed the demolition over the weekend of April 16 and April 17, 2005; the tenants of the Property were evacuated. On May 4, 2005, Vermeychuk’s counsel1 requested, in a letter to the City of Chester, that the Property’s utilities be restored. Vermeychuk’s counsel indicated that valuable time was being lost “in securing the property, it’s [sic] reinspection and making needed repairs.” (Record, Complaint filed August 9, 2005, Exhibit 2.) On May 6, 2005, the City Engineer re-inspected the Property, and in a report to the City of Chester, stated that: [D]uring the site visit, the following observations were made: 1. The masonry wall at the first floor indicates movement of wall, 2. Cracks in walls over windows, at door and along top brick course, 3. Crack in wall and loose brick at second and third floor levels, 4. Roof not structurally secure on rear third of building, and
Vermeychuk is represented by her husband, Daniel P. Vermeychuk, Esquire.
Window frames are deteriorating.
[N]o interior inspection of the [Property] was made after demolition of 314; however, prior inspection (04/15/05) indicates damage beyond economic repair throughout the three floors and basement. Structural deficiencies and wall cracking indicates foundation and structural damage which render the [Property] uninhabitable and economically un-repairable. I therefore recommend that the structure be demolished. (Record, Complaint filed August 9, 2005, Exhibit A-2, pp. 2-3.) The Chief Housing Inspector of the City of Chester notified Vermeychuk by letter dated May 12, 2005, that the Property had been determined to be uninhabitable, and ordered her to demolish the unsafe structure within thirty days; further, the letter informed Vermeychuk that should she wish to appeal, she must request an appeal in writing to the office of the Director of Public Safety within five days. Vermeychuk made a timely appeal, and a hearing was held by the Director of Public Safety on June 9, 2005; at the hearing, Vermeychuk produced a report from a structural engineer that disputed the conclusions of the City Engineer; this report found the Property to be in “good to excellent condition.” (Record, Complaint filed August 9, 2005, Exhibit G-2.) However, the Director of Public Safety informed Vermeychuk, in a letter dated August 1, 2005, that at the June 9, 2005 hearing, Vermeychuk had agreed to submit, no later than July 10, 2005, an engineer’s structural analysis and plan for rehabilitation to the Property, setting forth the repairs believed necessary to bring the Property up to code, in order to obtain a multi-family dwelling license from the City of Chester; the letter indicated that Vermeychuk had subsequently been granted an extension of time of fifteen days in which to provide this analysis, and still had not done so. In that
letter, once again Vermeychuk was ordered to demolish the Property within thirty days, and instructed that no one was to reside in the Property. (Record, Complaint filed August 9, 2005, Exhibit J-2.) Under cover of a letter to the City of Chester dated July 29, 2005, Vermeychuk did, in fact, produce a second engineer’s report, dated July 28, 2005, referencing City of Chester correspondence, the City Engineer’s report, the earlier engineer’s report submitted by Vermeychuk, and the 2003 edition of the International Building Code; the second report found the Property to be in “adequate and serviceable structural condition.” The second report addressed various conditions of the Property cited in the City Engineer’s report, and noted that all of these conditions are “easily repairable and do not structurally jeopardize the ongoing use of the building.” (Record, Complaint filed August 9, 2005, Exhibit G-2, p. 4.) The second report further observed that the demolition work performed on the adjacent structure was not properly completed, and stated that the Property “remains exposed and vulnerable to the elements, as well as damaged by the demolition activities themselves.” Id. Vermeychuk’s July 28, 2005 letter to the City of Chester states that careless demolition work, the responsibility of the demolition contractor, had damaged the otherwise structurally sound Property, and “as far as the request to bring the building up to code, the interior of the building has been a fully functional multi family building for over 45 years and has been well maintained.” (Record, Complaint filed August 9, 2005, Exhibit I-2.) On August 4, 2005,
Vermeychuk was notified by letter from the Director of the Department of Public Safety that the second engineer’s report had been forwarded to the City Engineer; however, that letter again stated that Vermeychuk had not submitted a plan to bring the Property into code compliance and was “non responsive” to her agreement with the City of Chester. (Record, Complaint filed August 9, 2005, Exhibit L-2.)
Vermeychuk did not appeal the Department of Public Safety’s Order of Demolition.2 Instead, on August 9, 2005, Vermeychuk instituted suit against Appellees, alleging, inter alia, that the demolition of the adjacent structure, without repair to the party wall, left the Property a useless shell, and amounted to an illegal taking without compensation in violation of her constitutional rights. Vermeychuk alleged negligence on the part of the Director of the Chester Economic Development Authority and the Director of Public Safety, and demanded that the City of Chester repair damage to the Property and restore utilities thereto, so that her tenants could be permitted to reenter their apartments; Savoy, the demolition contractor, was not named in the suit. On October 4, 2005, a hearing on Vermeychuk’s petition for a preliminary injunction was held before Judge Zetusky. There is no hearing
transcript in the record; however, according to an affidavit filed by the attorney who appeared at the hearing on behalf of the City, the Mayor and the Director of the Department of Public Safety, and contrary to subsequent assertions by Vermeychuk, the parties did not reach a settlement on Vermeychuk’s suit, nor did Judge Zetusky order the City of Chester to settle the matter or repair the Property. (Record, Exhibit 11, City of Chester, Mayor Butler, and Mary Tull, Esq. Statement of Material Facts and Conclusions of Law in Support of Summary Judgment, filed January 29, 2007.) The affidavit also states, at paragraph 10: At a subsequent date and without a hearing taking place Mr. Vermeychuk chose to withdraw his petition and as a
Under Section 2323 of the Third Class City Code, Act of June 23, 1931, P.L. 932, added by Section 23 of the Act of June 28, 1951, P.L. 662, 53 P.S. §37323, an affected property owner, may, within ten days of a decision, appeal to a court of quarter sessions “provided appellants post a bond, approved by the court for the use of the city, with sufficient surety to cover all the expenses and costs of executing the court’s order.”
gesture of good will, the City of Chester allowed Mr. Vermeychuk an opportunity to submit a plan to repair his wife’s property so that (1) the property would be structurally sound and (2) the property would be code compliant, i.e., so that it would no longer be unsafe and uninhabitable. Id. On November 21, 2005, Vermeychuk was notified by the Department of Public Safety that because the City of Chester had not yet received Vermeychuk’s engineer’s report, plan for structural repairs, or plan to put money in escrow to ensure completion of repairs, the decision to stay the demolition of the Property was rescinded. The letter indicated that Vermeychuk had agreed to
provide these items in exchange for the City of Chester’s agreement not to go forward on the demolition of the Property, and stated that the City of Chester would perform the demolition if Vermeychuk did not do so herself within ten days of the receipt of the notice. Correspondence dated December 27, 2005 from the Department of Public Safety informed Vermeychuk that a plan she subsequently submitted failed to address four necessary items, and as such was not responsive: “[w]e agreed you would submit a plan that would address all items necessary to be repaired to make the building structurally sound, and after this was complete we would address what was needed to bring the property up to code as a multi-family dwelling unit. Please submit an additional plan that addresses the four items noted…If this additional plan is not received by January 15, 2006, the stay on the demolition notice will be lifted, and you will have to demolish the structure or the City will take demolition action.” (Record, Defendants’ City of Chester, Mayor Butler, and Mary Tull, Esquire, Statement of Material Facts and Conclusions of Law In Support of Motion for Summary Judgment, Exhibits 12 and 14.)
Following receipt of a November 6, 2006 notice from the City of Chester Building Code Official3 informing her that utilities service to the Property would be turned off on November 10, 2006, Vermeychuk filed a second preliminary injunction and complaint on November 8, 2006 and November 13, 2006, respectively, seeking to compel the City of Chester and the Chester County Economic Development Authority to cease and desist attempts to demolish the Property and to repair the party wall exposed by the demolition; the complaint alleges the failure by the City of Chester “to act according to settlement discussions ordered by Judge Zetusky.” (Record, Verified Petition for Preliminary Injunction, filed November 8, 2006.) On January 30, 2007, the Trial Court entered summary judgment in favor of Appellee David N. Sciocchetti, and on July 19, 2007, the Trial Court entered summary judgment in favor of Appellees City of Chester, Wendell N. Butler, Mayor, City of Chester, and Mary Tull, Director of Public Safety, City of Chester.
The notification states in part: You have been notified on several occasions that the above property is not safe for human habitation, and have been ordered not to allow it to be occupied…the building remains unsafe for human occupancy as determined by the City’s engineer and the engineer and architect you hired to submit reports to the City. You have not made any repairs, and the building does not have a current certificate of occupancy. The City has received reports that persons are living in the building, and a review of the electric use supports this finding…You are hereby ORDERED to vacate the building of tenants and not allow any occupancy of the building until you have obtained a certificate of occupancy or license from the City. The City will terminate all utility service to the building on November 10, 2006. (emphasis added.) (Record, Defendant, David N. Sciocchetti, Director of Chester Economic Development Authority, Motion for Summary Judgment, Exhibit C.)
In its opinion, the Trial Court correctly noted that Vermeychuk failed to produce a structural report that included a plan for bringing the Property up to code on or before July 30, 2005, and, although Vermeychuk was again ordered by the Department of Public Safety to demolish the building, she never filed an appeal from this order, and instead instituted the negligence action sub judice. The Trial Court discussed the Appellees’ motions for summary judgment, in which they asserted their immunity from liability pursuant to the act commonly known as Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§85418542,4 and opined that Vermeychuk has not alleged any activities which fall within any of the eight enumerated exceptions to governmental immunity.5 (Opinion of the Trial Court, September 13, 2007, p. 4.)
Chapter 85 of the Judicial Code, 42 Pa. C.S. §§8501-8564, addresses “Matters Affecting Government Units.” Subchapter C of Chapter 85 of the Judicial Code, 42 Pa. C.S §§8541-8564, which addresses “Actions Against Local Parties,” is commonly referred to by the unofficial name “Political Subdivision Tort Claims Act.” We note that the name “Political Subdivision Tort Claims Act” was formerly the official title of the Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. §5311.1101-5311.803, repealed by the Act of October 5, 1980, P.L. 693. If the cause of action arose after 1980, references to the Political Subdivision Tort Claims Act most likely refer to the Judicial Code and not to the repealed act. When used in this opinion, the Tort Claims Act shall refer to the Judicial Code. These exceptions are set forth in Section 8542 (b) of the Tort Claims Act, and include the following: (b) Acts which may impose liability. – The Following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: … (3) Real property. – The care, custody, or control of real property in the possession of the local agency…
On appeal,6 Vermeychuk argues that Appellees are conspirators in a personal attack upon herself and her attorney/spouse, and part of an ongoing pattern of illegal actions against property owners allegedly taken by the City of Chester. Vermeychuk avers that she spent the summer of 2006 interviewing
contractors to complete a restoration of the Property, and all declined, in fear of hurting their chances for City of Chester contract awards; she maintains that the one contractor she finally hired was forced off the job by the City of Chester. In her brief, Vermeychuk alleges that Appellees took control of the Property by force, for no apparent reason, condemning the Property without a proper exterior inspection, and ignored Appellees’ own expert witness’ report that the building was structurally sound. Appellee David N. Sciocchetti, Director of Chester Economic Development Authority, argues that: (i) the Trial Court correctly granted his petition for summary judgment based upon his non-involvement in the demolition order or contract upon which Vermeychuk’s action is predicated;7 (ii) as a municipal defendant, he is immune from damage based upon the negligent acts of Savoy, a City of Chester contractor.
In considering the Trial Court’s granting of Appellees’ application for summary judgment, this Court notes that an appellate court may only disturb the decision of a trial court granting or denying summary judgment pursuant to Pa. R.C.P. Nos. 1035.1-1035.5 if it determines the trial court committed an error of law or abused its discretion. Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (2006). In considering summary judgment motions, both trial and appellate courts must view the evidence in a light most favorable to the nonmoving party, and should grant summary judgment only where the record clearly shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Id. An issue is material if its resolution could affect the outcome of the case under the governing law. Id. The Director of the Chester Economic Development Authority approved a payment requested by the City of Chester for contractor Savoy out of Authority funds.
The City of Chester Appellees aver that they are immune from the negligence claims set forth in Vermeychuk’s complaint, and further, that this is not a valid appeal of the City of Chester’s determination that the Property was unsafe and uninhabitable. Our review of the extensive record shows that with the exception of the very brief period immediately preceding, and immediately following, the actual demolition of the adjoining property, when Vermeychuk’s tenants were evacuated for their own safety, Vermeychuk has been free, and in fact encouraged time and again by the City of Chester, to take the steps necessary to bring the Property up to code and make it habitable, so that a proper license could be obtained. Vermeychuk has failed to appeal the determination that the Property must be demolished. In her complaint, Vermeychuk acknowledges that the demolition of the adjacent property, and the alleged resulting damage to the Property, were caused by the acts of Savoy, the contractor. In Dunkle v. Middleburg Municipal Authority, 842 A.2d 477 (Pa. Cmwlth.), petition for allowance of appeal denied, 580 Pa. 708, 860 A.2d 491 (2004), this Court affirmed that a government agency and its employees are not responsible for the act of contractors.
There is simply no evidence sub judice that any exception to governmental immunity is applicable to Vermeychuk’s claims; thus, the Trial Court properly granted Appellees’ motions for summary judgment. Accordingly, we must affirm the order of the Trial Court. therefore denied as moot. Vermeychuk’s application for oral argument is
______________________________________ JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Doris E. Vermeychuk, Appellant v. City of Chester, Mr. Wendell N. Butler, Mayor, City of Chester; Ms. Mary Tull, Esquire, Director of Public Safety, City of Chester and Mr. David N. Sciocchetti, Director, Chester Economic Development Authority
: : : : : : : : : : : No. 1603 C.D. 2007 :
ORDER AND NOW, this 1st day of April, 2008, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is AFFIRMED. Appellant’s petition for oral argument is denied as moot.
______________________________________ JAMES GARDNER COLINS, Senior Judge