SWINSON v. CITY OF PHILADELPHIA et al

Filing 49

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 8/19/15. 8/20/15 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LYDELL SWINSON a/k/a
LINDELL SWINSON, JR.

:
:
:
:
:
:

v.
CITY OF PHILADELPHIA, et al.

CIVIL ACTION

NO. 13-6870

MEMORANDUM
Bartle, J.

August 19, 2015
Before the court is the motion of the defendants for

summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.
Plaintiff Lydell Swinson, Jr. (“Swinson”), a state
prisoner, brings this action under 42 U.S.C. § 1983 and under state
law against defendants the City of Philadelphia (the “City”) and
Michael Curran (“Curran”).

Curran is an inspector at the

Philadelphia Department of Licenses & Inspections (“L&I”).

This

matter arises out of Curran’s inspection and the City’s subsequent
demolition on June 24, 2009 of a house owned by Swinson and his
father as tenants in common.

Swinson initiated this action on

April 17, 2013 in the Court of Common Pleas of Philadelphia County.
It was then removed to this court.
Swinson, who has been incarcerated since 2004, avers
that the City found the house to be dangerously unstable and
demolished it without making any reasonable attempt to notify him

of its intentions beforehand.

He claims that the actions of the

City and Curran violated his right to procedural due process under
the Fourteenth Amendment to the United States Constitution.

He

further asserts that the City took the house without just
compensation under the Fifth Amendment and failed to comply with
state law governing the demolition of property.
I.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Rule

56(c)(1) states:
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by ... citing to particular parts of materials
in the record, including depositions,
documents, electronically stored information,
affidavits or declarations, stipulations ...,
admissions, interrogatory answers, or other
materials; or ... showing that the materials
cited do not establish the absence or presence
of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support
the fact.
Fed. R. Civ. P. 56(c)(1).
A dispute is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the non-moving
party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

Summary judgment is granted where there is insufficient record

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evidence for a reasonable factfinder to find for the plaintiffs.
Id. at 252.

When ruling on a motion for summary judgment, we may

only rely on admissible evidence.

See, e.g., Blackburn v. United

Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999).

We view the

facts and draw all inferences in favor of the nonmoving party.

In

re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).
II.
The following facts are undisputed or are taken in the
light most favorable to Swinson.

In March 1999, Swinson and his

father, Lindell Swinson, Sr., purchased a house located at 236 East
Mayfield Street in Philadelphia for $20,000.
memorialize the purchase.

An indenture and deed

In the ownership information database

maintained by the Philadelphia Board of Revision of Taxes (“BRT”),
the address of record for both Swinson and his father was his
father’s address at 3643 North 13th Street in Philadelphia.
The Pennsylvania General Assembly created the BRT in
1939.

See 72 Pa. Stat. Ann. § 5341.1 et seq.

In 1953 it granted

the Philadelphia City Council the authority to “legislate with
respect to the election, appointment, compensation, organization,
abolition, merger, consolidation, powers, functions and duties of
the ... Board of Revision of Taxes or its successor, with respect
to the making of assessments of real and personal property as

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provided by act of Assembly.”1

53 Pa. Stat. Ann. § 13132(c).

The

parties agree for present purposes that the BRT is an operating
department of the City.
After Swinson and his father bought 236 East Mayfield
Street, Swinson took up residence there with his wife and three
children.

He was arrested in August 2004 and was convicted of

various crimes.

He has been in custody since his arrest and has

not thereafter visited the Mayfield Street property.

Swinson began

his sentence at the State Correctional Institution at Graterford
(“SCI Graterford” or “Graterford”) and is presently incarcerated at
the State Correctional Institution at Mahanoy (“SCI Mahanoy”).
According to a declaration submitted by Swinson, while
he was imprisoned at Graterford in mid-2008, he exchanged letters
with the BRT concerning taxes owed on the Mayfield Street house.
He informed the BRT of his location, and the agency sent him
letters there.

Despite this correspondence, Swinson’s registered

address in the BRT’s recordkeeping system remained his father’s
address at 3643 North 13th Street.

1

On May 18, 2010, nearly one year after the events of this
case, the City Council attempted to abolish the BRT and divide
its functions between the newly created Philadelphia Office of
Property Assessment and Board of Property Assessment Appeals.
The Supreme Court of Pennsylvania, however, ruled that the BRT
could continue in its appellate or adjudicative function since
the City Council did not have the statutory authority to abolish
this aspect of the BRT under 53 Pa. Stat. Ann. § 13132. Bd. of
Revision of Taxes v. City of Phila., 4 A.3d 610 (Pa. 2010).
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On June 1, 2009, defendant Curran inspected the Mayfield
Street property.

That same day he used his computer to generate a

“violation” notice addressed to Swinson and his father at 3643
North 13th Street.

Curran took no action beyond following the

custom of L&I to examine the BRT database to determine Swinson’s
whereabouts.

The notice prepared by Curran declared the premises

to be “IMMINENTLY DANGEROUS.”

It further described the specific

nature of the hazards and stated that “if you fail to comply with
this order forthwith, the City may demolish the structure....”

The

addressees were told that if they intended to appeal it must be
done “within five days of the date of this notice.”
On June 9, 2009 Swinson’s father signed a certified mail
receipt for the violation notice sent to his address.

Curran

thereafter posted a “Danger” sticker on the property.

Swinson’s

father did nothing to prevent the City from proceeding, and the
City razed the Mayfield Street house on June 24, 2009.

Immured at

Graterford, Swinson remained ignorant of these fast-moving events.
His father did not inform him of what was happening.
In July 2011 Swinson spoke with his grandmother,
Rosemary Jones, about selling the property.

It was at this time

that he first learned of the demolition.
III.
The defendants contend that Swinson’s claims are timebarred by virtue of the applicable two-year statute of limitations.
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Swinson’s complaint, as noted above, was filed on April 17, 2013.
According to the defendants, the limitations period began to run on
June 24, 2009 when the house was demolished, that is, shortly after
his father received on June 9, 2009 the City’s notice sent to him
and Swinson at 3643 North 13th Street.

The defendants argue that

the notice was sufficient to alert Swinson to the City’s plans and
that in any event he had reason at that time to know what was
occurring.

Swinson counters that his father’s knowledge cannot be

imputed to him and that the clock was tolled until July 2011 when
his grandmother told him that the City had torn down the house.
Actions brought under 42 U.S.C. § 1983 are governed by
the statute of limitations for personal injuries in the state where
the cause of action arose.
Cir. 2009).

Kach v. Hose, 589 F.3d 626, 634 (3d

A personal injury claim in Pennsylvania must be

brought within two years after the date that the action accrues.
42 Pa. Cons. Stat. Ann. §§ 5502(a), 5524(2); Lake v. Arnold, 232
F.3d 360, 366 (3d Cir. 2000).
matter of federal law.

When a § 1983 action accrues is a

Kach, 589 F.3d at 634.

Accrual occurs when

a potential plaintiff “either is aware, or should be aware, of the
existence of and source of an injury.”

Oshiver v. Levin, Fishbein,

Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994); see also Kach,
589 F.3d at 634.

This is an objective inquiry which asks what a

reasonable person should have known standing in the potential
plaintiff’s shoes.

Kach, 589 F.3d at 634.
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Moreover, Pennsylvania’s discovery rule will toll the
running of the statute of limitations until a plaintiff “knew or
should have known on the exercise of reasonable diligence of his
injury and its cause.”

Fine v. Checcio, 870 A.2d 850, 858 (Pa.

2005); see also Bynum v. Trustees of Univ. of Pa., Civil Action No.
15-1466, --- F. Supp. 3d ---, 2015 WL 4480842, at *5 (E.D. Pa. July
23, 2015).2

“[T]here are few facts which diligence cannot

discover, but there must be some reason to awaken inquiry and
direct diligence in the channel in which it would be successful.
This is what is meant by reasonable diligence.”

Debiec v. Cabot

Corp., 352 F.3d 117, 129 (3d Cir. 2003) (quoting Cochran v. GAF
Corp., 666 A.2d 245, 249 (Pa. 1995)); see also Vernau v. Vic’s
Market, Inc., 896 F.2d 43, 46 (3d Cir. 1990).
It is undisputed that Swinson at all times relevant was
a state prisoner incarcerated outside of the City and County of
Philadelphia.

It is also undisputed that he did not gain actual

knowledge of the June 2009 razing of his home on Mayfield Street
until July 2011 when he discussed selling the property with his
grandmother.
The defendants first argue that the knowledge Swinson’s
father obtained from the June 2009 notice is imputed to Swinson.

2

Federal courts generally apply the state’s tolling principles
when the state’s limitations period controls. Bohus v. Beloff,
950 F.2d 919, 924 (3d Cir. 1991).
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Under Pennsylvania law Swinson is presumed to hold the property
with his father as a tenant in common.
Property § 6:5 (2d ed. 2015).

6 Summ. Pa. Jur. 2d

In the Commonwealth “[a] tenancy in

common is an estate in real or personal property in which there is
a unity of possession but separate and distinct titles.”
Pa. Jur. 2d Property § 6:2 (footnote omitted).

6 Summ.

As the Supreme

Court of Pennsylvania has recognized, “[u]nder ordinary
circumstances neither tenant in common can bind the estate or
person of the other by any act in relation to the common property,
not previously authorized or subsequently ratified, for cotenants
do not sustain the relation of principal and agent to each other,
nor are they partners.”

Caveny v. Curtis, 101 A. 853, 854 (Pa.

1917).
Swinson’s father resided at 3643 North 13th Street while
Swinson was imprisoned at SCI Graterford.

There is no evidence

that his father ever communicated with him about the demolition
notice.

The knowledge of one cotenant may not be imputed to

another cotenant, at least under the circumstances presented here.
The knowledge of Swinson’s father cannot be deemed the knowledge of
Swinson or attributed to Swinson for purposes of the running of the
statute of limitations against Swinson.
Nor can the defendants successfully argue that Swinson
through reasonable diligence should have known about the demolition
in June 2009.

He certainly had no ability to visit the property
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since his arrest in 2004 or to peruse the mail sent to him and his
father at 3643 North 13th Street.

There is no evidence in the

record that he had reason to know that the property he had last
seen in 2004 was in a hazardous condition in June 2009.

Nor is

there any way he could have read the mind of his father or that of
a city inspector.
inquiry.”

Nothing had taken place to “awaken [Swinson’s]

Debiec v. Cabot Corp., 352 F.3d 117, 129 (3d Cir. 2003).
What Swinson did do was to notify the BRT in 2008 of his

incarceration at Graterford.

Yet the City, which had a duty to

notify the owner of its demolition plans, never sent him notice at
his prison address.

Prisoners, unlike free persons outside the

prison walls, have limited opportunity to discover what is
occurring with a property they own.

See United States v. One

Toshiba Color Television, 213 F.3d 147, 154 (3d Cir. 2000).

A jury

could properly find on the facts before us that Swinson acted with
reasonable diligence.
The focus in any tolling of the statute of limitations
is on the knowledge or reasonable diligence of the potential
plaintiff and not on the knowledge or conduct of other persons.
See Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005).

In a

malpractice action, for example, the surgeon may know that he left
a sponge in a patient’s stomach.

It is the knowledge and diligence

of the patient in discovering the source of the injury, not the
individualized knowledge of the surgeon or anyone else that is
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relevant for tolling purposes.

Likewise, the unshared knowledge of

Swinson’s father cannot be deemed the knowledge of Swinson or
imputed to Swinson.

As noted above, there is evidence that he

acted with reasonable diligence when he provided the City with his
prison address.

Swinson brought the action within two years after

first learning from his grandmother in July 2011 of the demolition
of his house.
Evidence of tolling of the statute of limitations
exists.

Thus, the defendants are not entitled to summary judgment

based on the absence of such evidence.
IV.
The defendants next assert that, even if the statute of
limitations were tolled, the action is time-barred because Swinson
received adequate notice in June 2009 of the impending demolition
as a result of the City’s notice to Swinson and his father at 3643
North 13th Street but did not file suit within the required two
years after the demolition.

Swinson responds that the notice was

insufficient under the Due Process Clause of the Fourteenth
Amendment.
As to tolling, as previously noted, the court must
review the matter based on the knowledge or reasonable diligence of
Swinson, the plaintiff.

In contrast, when considering due process

in giving notice of the demolition, we must focus on the conduct of
the City and Curran as the parties responsible for giving notice.
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They bear the burden of proof to demonstrate that notice was
adequate.

See United States v. One Toshiba Color Television, 213

F.3d 147, 155 (3d Cir. 2000).
The Fourteenth Amendment provides in relevant part:

“No

state shall ... deprive any person of life, liberty, or property,
without due process of law.”

U.S. Const. amend. XIV § 1.

“An

elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.”
Bank & Trust, 339 U.S. 306, 314 (1950).
required under this standard.

Mullane v. Cent. Hanover

Actual notice is not

See, e.g., United States v. One

Toshiba Color Television, 213 F.3d 147, 155 (3d Cir. 2000).
Instead, the entity providing notice must employ means in the
manner of “one desirous of actually informing the absentee.”
Mullane, 339 U.S. at 315.
Defendants surprisingly rely on the Court of Appeals
decision in United States v. One Toshiba Color Television, 213 F.3d
147 (3d Cir. 2000).

There Reginald McGlory had been sentenced to

life in prison after being convicted of numerous drug- and
firearms-related offenses.

He had been in the custody of the

United States from the date of his arrest.

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The United States instituted civil forfeiture
proceedings with regard to items of his property including a
television.

Despite his incarceration at a federal prison, the

United States mailed notice of the forfeiture proceedings to
McGlory at an address he used prior to his arrest.

It also sent

notice to his mother and an attorney and published notice in a
newspaper.3

After no answer was filed, a default judgment was

entered in the government’s favor.

McGlory asserted that he never

received notice of the forfeiture proceedings and sought the return
of his property.
Our Court of Appeals explained that, while actual notice
is not required, “it is clear that when an incarcerated individual
is the one being served, the serving party must attempt to effect
service where the prisoner may be found -- that is, in prison, not
the pre-incarceration address.”

Toshiba, 213 F.3d at 152, 155; see

also Robinson v. Hanrahan, 409 U.S. 38, 40 (1972).

The court

observed that incarcerated persons, unlike free citizens, often
face significant obstacles in maintaining the channels of
communication necessary to learn about events that affect their
affairs outside of prison.

Id. at 154.

Since the United States

made no attempt to serve McGlory in jail with respect to the

3

It turned out that the attorney had no relationship to McGlory
and did not represent him in any matter.
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television, the court found a violation of due process and vacated
the forfeiture order.

Id. at 159.

In Foehl v. United States, 238 F.3d 474 (3d Cir. 2001),
a case involving the civil forfeiture of property owned by a person
free on bail, the court reemphasized that “particularly where the
claimant is in a place chosen by the government, due process may
require that the government make multiple attempts at notification
if the claimant’s name and address are reasonably ascertainable.”
Id. at 479.

In Foehl the U.S. Drug Enforcement Administration

(“DEA”) sought to forfeit several items of property belonging to a
person facing drug trafficking charges.

The DEA made no attempt to

verify the person’s address despite having access to several
“obvious sources” that called the person’s address into question.
Id. at 480.

The Court of Appeals noted the DEA’s “glaring lack of

effort ... to ascertain Foehl’s correct address” and underlined
that “[t]he constitutional mandate of adequate notice cannot be
treated as empty ritual.”

Id.

It held that the DEA violated due

process in failing to make a reasonable effort to provide adequate
notice.

See id.
We need not decide here what duty the City has generally

to determine the prison addresses of inmates who own real estate in

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Philadelphia.4

In this matter there is evidence that the City was

actually aware of Swinson’s incarceration at SCI Graterford as a
result of his correspondence with the BRT.

Like the United States

in Toshiba, the City failed to direct notice to Swinson at SCI
Graterford despite having knowledge that he was incarcerated there.
Similarly, the City’s failure to take basic actions to ensure that
notice would be received in light of its knowledge of Swinson’s
incarceration resembles the DEA’s insufficient efforts in Foehl.
While the City used the North 13th Street address in the BRT’s
database, it had previously corresponded with Swinson at his prison
address.

On the present record, it knew of Swinson’s whereabouts.
The lack of proper notice and opportunity to be heard is

particularly egregious when events move as quickly as they did
here.

The entire scenario from the inspection of the property on

June 1, 2009 until its demolition on June 24, 2009 took less than a
month.

It was an even shorter span of time from the point the

violation notice was received by Swinson’s father on June 9.
The City also relies on Mennonite Board of Missions v.
Adams, 462 U.S. 791 (1983), for the proposition that actual notice

4

We note that the Pennsylvania Department of Corrections has
maintained since at least 2001 a publically-accessible database
called the Inmate Locator which may be used to ascertain the
current location of all persons held in custody by the
Commonwealth or its counties. Pa. Inmate Locator,
http://inmatelocator.cor.state.pa.us/inmatelocatorweb/ (last
visited Aug. 18, 2015).
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is not required.

We agree that the City had no obligation under

the Fourteenth Amendment to make sure that Swinson received actual
notice.

See, e.g., Mennonite Bd., 462 U.S. at 800; Toshiba, 213

F.3d at 155.

However, the City’s stance that mailing notice to a

person’s last known address is all the Constitution requires
ignores the crux of the matter.

Again, the BRT had corresponded

with Swinson at SCI Graterford.

The record demonstrates that the

City knew his last known address was at that prison, not the
address to which the City sent notice.

The City then demolished

the Mayfield Street house only fifteen days after Swinson’s father
received the notice at 3643 North 13th Street.

Under the holdings

in Toshiba and Foehl, this is certainly sufficient evidence for a
reasonable factfinder to conclude that the City has violated
Swinson’s right to due process by failing to provide him “notice
reasonably calculated, under all the circumstances, to apprise
[him] ... of the pendency of the action [to demolish his house] and
afford [him] an opportunity to present [his] objections.”

Mullane,

339 U.S. at 314; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
254 (1986).
The City has not established as a matter of law that it
provided to Swinson adequate notice and opportunity to be heard
under the Due Process Clause of the Fourteenth Amendment.
Accordingly, its motion for summary judgment that it conformed to
this Constitutional requirement will be denied.
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V.
The City further urges that, even if Swinson’s action
were timely, the City is entitled to summary judgment because
Swinson has not linked the failure to notify him of the demolition
of the Mayfield Street property to any of its customs, policies, or
practices sufficient to impose municipal liability.

See Monell v.

Department of Social Services, 436 U.S. 658 (1978).

Swinson has

brought his federal claim against the defendants under 42 U.S.C.
§ 1983 which provides:
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.
42 U.S.C. § 1983.

As the Supreme Court concluded in Monell, 436

U.S. at 690, municipalities are among those “persons” subject to
suit via § 1983.
A municipality is liable under § 1983 only “when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury.”

Id. at 694.

A

policy may be said to exist where “a deliberate choice to follow a
course of action is made from among various alternatives by the
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official or officials responsible for establishing final policy
with respect to the subject matter in question.”
of Cincinnati, 475 U.S. 469, 483 (1986).

Pembaur v. City

Similarly, a custom or

practice is present when “a given course of conduct, although not
specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law.”
915 F.2d 845, 850 (3d Cir. 1990).

Bielevicz v. Dubinon,

A plaintiff must establish a

“direct causal link between a municipal policy or custom and the
alleged constitutional deprivation.”

City of Canton v. Harris, 489

U.S. 378, 385 (1989).
Swinson contends that the City has a custom or practice
of relying entirely on the BRT’s database of registered addresses
when sending notices to homeowners.

Defendant Curran, an inspector

for L&I for 15 years and who has conducted over 1,000 building
inspections, has testified about how he goes about sending such
notices.

When Curran discovers code violations during a building

inspection, he sends to the property owner a computer-generated
notice which uses the database of registered addresses maintained
by the BRT.

These notices are sent via registered mail, and the

City relies on return receipts for proof that notices have been
received.

While the record is not entirely clear, it appears that

from time to time Curran finds out that homeowners are incarcerated
because “[u]sually they write a letter back to us or something
saying they are there [in prison].
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After the fact.”

Curran does

not, however, have any personal knowledge of the inner workings of
the BRT, nor do his duties as a building inspector include any
independent investigation of a property owner’s whereabouts.
Taking this evidence in the light most favorable to
Swinson, he has failed to show any unconstitutional custom, policy,
or practice of the City of Philadelphia which is relevant to the
circumstances of this case.

At most he has shown negligence in

this one instance involving Swinson’s address.

Negligence is

insufficient to demonstrate a violation of due process.
Daniels v. Williams, 474 U.S. 327, 328 (1986).

See

Moreover, evidence

of a single occurrence is generally not sufficient for Monell
purposes unless that occurrence is the result of a policy that
is unconstitutional on its face.

See City of Okla. City v.

Tuttle, 471 U.S. 808, 823-24 (1985).

While the BRT apparently

failed to update Swinson’s registered address after learning
that he was in prison, Swinson has not adduced any evidence of
other times that the BRT has received word that a person is in
prison but neglected to change its records accordingly.

Without

additional proof that this is a commonplace shortcoming, the
City cannot be held liable.
Swinson misses the mark when he argues that the City
has an unconstitutional practice of failing to ascertain whether
a person is incarcerated before sending demolition notices.
Even if this is so, it is irrelevant to the circumstances of
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this case where the City already knew of Swinson’s prison
address.

We have no concern with possible unconstitutional

customs, policies, or practices when they do not implicate the
wrong alleged here.

As the Supreme Court has explained, a

causal link is necessary between the custom, policy, or practice
and the constitutional deprivation.
489 U.S. 378, 385 (1989).

City of Canton v. Harris,

Swinson’s claims against the City are

not cognizable under § 1983.
On the subject of any individual liability of Curran, we
hasten to add that there is no evidence to suggest that he is
individually responsible for any due process violation.

Taking the

evidence in the light most favorable to Swinson as we must at this
stage, and as noted above, the City knew that Swinson was in prison
before Curran sent the violation notice.

It therefore had reason

to know that the registered address in its database was out of
date.

But it was the City’s duty and not Curran’s to maintain the

database of registered addresses.

Curran committed no

constitutional violation in using Swinson’s registered address to
generate the notice of violation when he had no indication that it
was inaccurate.

See Jones v. Flowers, 547 U.S. 220, 229 (2006).

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Accordingly, summary judgment will be granted in favor
of the City of Philadelphia and Curran as to Swinson’s § 1983
claims.5
VII.
Finally, we still have before us Swinson’s claim that
the City is liable for the demolition of his home under state law
on the ground of negligent demolition.

He argues that the City’s

notice to him was deficient, citing the decision of the
Pennsylvania Supreme Court in Pivirotto v. City of Pittsburgh, 528
A.2d 125 (Pa. 1987).

See also 53 Pa. Stat. Ann. §§ 14611, 14612.

Our analyses of the tolling of the statute of limitations and the
deprivation of adequate notice under the Due Process Clause with
respect to Swinson’s federal claims are equally applicable to his
state law claim.

There is evidence that his action is timely.

In

addition, the City has not provided any substantive or other
argument why Swinson’s state-law claim should not proceed to

5

In light of this conclusion we need not address the City’s
arguments regarding Swinson’s takings claim under the Fifth
Amendment. We note that such a claim is properly brought
against a state under the Fourteenth Amendment rather than the
Fifth Amendment. In any event, Swinson’s takings claim is
without merit since the demolition of a dangerous building
involves the exercise of the City’s police power and not its
eminent domain power. See Nat’l Amusements Inc. v. Borough of
Palmyra, 716 F.3d 57, 63 (3d Cir. 2013); Duffy v. Kent Cnty.
Levy Court, 591 F. App’x 41, 44 (3d Cir. 2014).

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trial.6

Summary judgment will therefore be denied on Swinson’s

claim for negligent demolition under Pennsylvania law.
VIII.
In sum, summary judgment will be granted in favor of the
City of Philadelphia and Curran and against Swinson with respect to
Swinson’s claims under 42 U.S.C. § 1983.

The motion of the City

for summary judgment on plaintiff’s state law claim will be denied.

6

At oral argument the City raised the defense of governmental
immunity, but it did not do so in its brief. See 42 Pa. Cons.
Stat. Ann. §§ 8541, 8542. The City has yet to file an answer to
Swinson’s amended complaint. Without the benefit of briefing or
a responsive pleading, any consideration of this defense is
premature.
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