UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN DERAFFELE, : CIVIL NO: 4:15-CV-02186

 :

Plaintiff : (Judge Brann)

 :

v. : (Magistrate Judge Schwab)

 :

CITY OF WILLIAMSPORT, et al., :

 :

Defendants :

 :

REPORT AND RECOMMENDATION

I. Introduction.

The plaintiff, John DeRaffele, brings claims under the Fourth and Fourteenth 

Amendments based on the City of Williamsport’s condemnation of one of his 

rental properties because the property did not have electric service. The defendants 

filed a motion to dismiss the amended complaint. Because the lack of electricity 

constituted an emergency justifying closure of the property without prior notice 

and DeRaffele has not alleged facts to support an inference that there was not an 

adequate post-deprivation remedy available, the amended complaint fails to state a 

due process claim upon which relief can be granted. Because, for similar reasons, 

the temporary seizure of the property was reasonable, the amended complaint fails 

to state a Fourth Amendment claim upon which relief can be granted. And because 

the amended complaint fails to state a claim upon which relief can be granted 

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against the officers who condemned the property, the amended complaint also fails 

to state a claim against the City of Williamsport upon which relief can be granted. 

Accordingly, we recommend that the Court grant the motion to dismiss. We also 

recommend that DeRaffele be granted leave to file a second amended complaint.

II. Background and Procedural History.

DeRaffele’s amended complaint names as defendants the City of 

Williamsport; Joseph Girardi, the head of the Williamsport Codes Department; and 

Thomas Evansky, an inspector with the Williamsport Codes Department. In this 

case,

1 DeRaffele challenges the condemnation of one of his properties—814

Hepburn Street, Williamsport, Pennsylvania. He brings this action under 42 

U.S.C. § 1983 and raises claims under the Fourth and Fourteenth Amendments.2 

 

1

This is not the only case that DeRaffele has brought regarding the City of 

Williamsport and his rental properties. See also DeRaffele v. City of Williamsport, 

4:14-CV-01849 (M.D. Pa.) and DeRaffele v. City of Williamsport, 4:15-CV-0572

(M.D. Pa.). Each case, however, deals with different property. And this case deals 

with a different ordinance than the other two cases.

 

2 Although not mentioned elsewhere in the amended complaint, in the section of 

the amended complaint that sets forth the relief requested, DeRaffele seeks a 

declaratory judgment that the Williamsport Codes Department violated the Fifth 

Amendment as well as the Fourth and Fourteenth Amendments. Such a passing 

reference is not sufficient to raise a Fifth Amendment claim. Thus, we construe 

the amended complaint as raising only a Fourth Amendment claim and a 

Fourteenth Amendment procedural due process claim. 

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Because we are addressing a motion to dismiss the amended complaint, we accept 

the following factual allegations from the amended complaint as true. 

DeRaffele owns 13 properties in Williamsport including 814 Hepburn

Street. DeRaffele rented 814 Hepburn Street to Lasheena Richardson, who signed 

a lease with DeRaffele for 24 months to begin on November 15, 2014. See Doc. 8-

1 (Residential Tenancy Agreement). At some point, a neighbor called the Codes 

Department stating that he or she believed that the power was off at 814 Hepburn 

Street. On July 27, 2015, Evansky, on orders from Girardi, went to 814 Hepburn 

Street and condemned the property “for the prospect of its lack of electricity.” Doc. 

8 at ¶15. The property was “posted” and the tenants removed. Id. at ¶1. The 

Codes Department did not notify DeRaffele of the condemnation; rather, 

DeRaffele found out about the condemnation from his maintenance man, Robert 

Setzler. 

DeRaffele alleges that the Williamsport Codes Department used a provision 

of the International Property Maintenance Code (IPMC or Code)

3

to condemn 814 

Hepburn Street. But, according to DeRaffele, the Williamsport Codes Department 

used the IPMC inappropriately and incorrectly. Further, DeRaffele alleges that the 

IPMC, as used by the Williamsport Codes Department, lacks any provision for 

 

3

 Although DeRaffele refers to the “International Residential Code” in his amended 

complaint, see doc. 8 at ¶9, by letter he has informed the Court that he meant the 

IPMC, and he requested that the IPMC be substituted for the International 

Residential Code, see doc. 32.

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notice to the landlord or the tenant regarding the closure of the property. 

DeRaffele also alleges that the Williamsport Codes Department allows its 

inspectors, at their sole discretion, to condemn properties without any pre- or postdeprivation hearing, and there is no opportunity for landlords or tenants to contest 

the decision to close the rental unit prior to closure. According to DeRaffele, codeenforcement officers are not required to allege or provide any evidence that the 

owner or occupant knew or should have known about the non-payment of the 

electric bill prior to closure of the property, and the Williamsport Codes 

Department does not allow any defense to owners or occupants based on lack of 

knowledge. 

On or about July 28, 2015, Richardson arranged to have the electricity 

turned on, and she spoke to the Codes Department, which allegedly told her that no 

re-inspection was required for her to move back into 814 Hepburn Street. She

moved back in on or about July 28, 2015. 

On September 18, 2015, Evansky notified DeRaffele that the condemnation 

of 814 Hepburn Street was still in effect since the Codes Department had not reinspected the property. Evansky then issued DeRaffele a citation for violating a 

section of the Code that DeRaffele contends does not apply to his case. The 

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citation charged DeRaffele with allowing occupancy of a condemned and 

placarded structure in violation of §108.5 of the IPMC. See Doc. 10-5.

4

A hearing on that citation was held before Magisterial District Judge Page 

on November 16, 2015. At the hearing, Evansky testified that he believed that no 

one had notified the Codes Department of the re-entry on July 28, 2015, and that 

DeRaffele had removed the condemnation sign without a re-inspection. At the 

hearing, the City Solicitor presented an email that stated that the electricity was off 

at 814 Hepburn Street from July 27, 2015, to September 17, 2015. DeRaffele

believes those statements are incorrect and untruthful. At the hearing, DeRaffele’s 

maintenance man, Robert Setzler, testified that the electric at the property was on 

from July 28, 2015, until September 17, 2015, at which time it was put into a new 

tenant’s name. Setzler also testified that he was told that the tenant, Ms. 

Richardson, had called the Codes Department and obtained permission to re-enter 

 

4

 The court may take judicial notice of adjudicative facts that are not subject to 

reasonable dispute because they are “generally known within the trial court’s 

territorial jurisdiction” or because they “can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” 

Fed.R.Evid. 201(b)(2). The docket (available on the website of the Unified 

Judicial System of Pennsylvania: http://ujsportal.pacourts.us) and documents 

from DeRaffele’s state case are public records of which we can take judicial 

notice. See Wilson v. McVey, 579 F. Supp. 2d 685, 688 (M.D. Pa. 2008) (taking 

judicial notice of court docket); S. Cross Overseas Agencies, Inc. v. Wah Kwong 

Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (stating that the court 

“may take judicial notice of another court’s opinion—not for the truth of the 

facts recited therein, but for the existence of the opinion, which is not subject to 

reasonable dispute over its authenticity”). 

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the property without a re-inspection. DeRaffele allegedly asked Setzler to verify 

that information, and Setzler called the Codes Department numerous times asking 

for Evansky. Setzler could not reach Evansky, but he spoke to Codes Inspector 

Edward Krissling, who told him that no re-inspection was required when a 

property had been condemned for lack of electricity. 

On November 30, 2015, Judge Page found that DeRaffele “did allow and 

permit occupancy of a Condemned and Placarded property in violation of the 

IPMC section 108.5,” and he ordered DeRaffele to pay a fine and costs of $334.00. 

Doc. 10-6 at 3.5 DeRaffele appealed to the Court of Common Pleas of Lycoming 

County. See Doc. 15-1 at 34-35. On April 7, 2016, “following a Summary Appeal 

Trial,” Judge Lovecchio found DeRaffele guilty and sentenced him to pay the costs 

of prosecution and the fine imposed by Magisterial District Judge Page within 90 

days. Doc. 22-1. DeRaffele appealed Judge Lovecchio’s decision to the 

Commonwealth Court of Pennsylvania, and that appeal is still pending. See docket 

 

5

 Section 108.5 of the 2015 IPMC provides:

Prohibited occupancy. Any occupied structure condemned 

and placarded by the code official shall be vacated as ordered 

by the code official. Any person who shall occupy a placarded 

premises or shall operate placarded equipment, and any owner, 

owner’s authorized agent or person responsible for the premises

who shall let anyone occupy a placarded premises or operate 

placarded equipment shall be liable for the penalties provided 

by this code. 

Doc. 10-4 at 3 (emphasis in original).

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for City of Williamsport Bureau of Codes v. DeRaffele, No. 655 CD 2016 (Pa. 

Commw. Ct.).

The amended complaint contains two counts—one based on the Due Process 

Clause of the Fourteenth Amendment and one based on the Fourth Amendment. 

Contending that the condemnation of 814 Hepburn Street was done without prior 

notice and a hearing and that post-deprivations procedures were inadequate to 

protect his property interest, DeRaffele presents a procedural due process claim. 

Contending that the defendants unreasonably interfered with his property interests 

by summarily evicting his tenants and depriving him of all use of his property, 

DeRaffele presents a claim under the Fourth Amendment. 6 

DeRaffele is seeking a declaratory judgment that the Williamsport Codes 

Department violated his rights, an injunction prohibiting enforcement of any 

condemnation by the Williamsport Codes Department without a pre-deprivation 

hearing, and damages. 

 

6 Although there is some passing language in the amended complaint regarding the 

rights of DeRaffele’s tenants, we do not construe the amended complaint as 

attempting to assert claims on behalf of his tenants. Moreover, DeRaffele does not 

have third-party standing to represent his tenants since a requirement of such 

standing is that there be some hindrance to the third party presenting his or her own 

claims. See King v. Governor of the State of New Jersey, 767 F.3d 216, 243 (3d 

Cir. 2014). And DeRaffele has not pleaded any facts suggesting such a hindrance. 

Nor has he argued that such a hindrance is present in this case. 

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Currently pending is the defendants’ motion to dismiss the amended 

complaint, which has been fully briefed. For the reasons discussed below, we 

recommend that the Court grant that motion.7

III. Motion to Dismiss and Pleading Standards.

In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint 

for “failure to state a claim upon which relief can be granted.” When reviewing a 

motion to dismiss, “[w]e must accept all factual allegations in the complaint as 

true, construe the complaint in the light favorable to the plaintiff, and ultimately 

determine whether plaintiff may be entitled to relief under any reasonable reading 

of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In 

making that determination, we “consider only the complaint, exhibits attached to 

the complaint, matters of public record, as well as undisputedly authentic 

documents if the [plaintiff’s] claims are based upon these documents.” Id. at 230.

8

 

7

 DeRaffele requested oral argument on the motion to dismiss. See Doc. 20. 

Concluding that oral argument would not assist us in issuing our recommendation, 

we decline to schedule an oral argument in this case. Moreover, DeRaffele asserts 

that he wants to present “proof” at oral argument. But oral argument is not a time 

for a party to present proof, and the motion at issue here is a motion to dismiss, 

which is decided on the pleadings. 

8

 The defendants attach to their motion to dismiss a “Notice of Condemnation” 

dated July 23, 2015. They assert in their brief in support that this Notice was 

provided to DeRaffele on July 23, 2015. See Doc. 11 at 8. But in a letter to the 

Court, the defendants assert that the Notice of Condemnation was sent to 

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“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the 

pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. 

Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil 

Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the 

claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 

662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the 

defendant fair notice of what the plaintiff’s claim is and of the grounds upon which 

it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations 

are not required, but more is required than labels, conclusions, and a formulaic 

recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the 

plaintiff’s entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211

(3d Cir. 2009). “A complaint has to “show” such an entitlement with its facts.” Id.

In considering whether a complaint fails to state a claim upon which relief 

can be granted, the court must accept as true all well-pleaded factual allegations in 

the complaint, and all reasonable inferences that can be drawn from the complaint 

 

DeRaffele on July 27, 2015, not July 23, 2015. See Doc. 21. DeRaffele asserts in 

his brief in opposition to the motion to dismiss that he did not receive the Notice of 

Condemnation prior to the condemnation, and, to his knowledge, he did not receive 

the Notice at all. Doc. 15 at 5. We will not consider the Notice of Condemnation 

as it is document outside the pleadings and the parties disagree about its 

authenticity. Nor do we consider the affidavits, see doc. 15-1 at 5-7 and 25-26, 

submitted by DeRaffele as they are not within the type of documents that the court 

may consider in deciding a motion to dismiss.

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must be construed in the light most favorable to the plaintiff. Jordan v. Fox 

Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). But a

court “need not credit a complaint’s bald assertions or legal conclusions when 

deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 

906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can 

prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of 

Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). 

Following Twombly and Iqbal, a well-pleaded complaint must contain more 

than mere legal labels and conclusions. Rather, it must recite factual allegations 

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere 

speculation. In practice, consideration of the legal sufficiency of a complaint 

entails a three-step analysis:

First, the court must ‘tak[e] note of the elements a plaintiff must 

plead to state a claim.’ Second, the court should identify 

allegations that, ‘because they are no more than conclusions, 

are not entitled to the assumption of truth.’ Finally, ‘where 

there are well-pleaded factual allegations, a court should 

assume their veracity and then determine whether they 

plausibly give rise to an entitlement for relief.’

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 

U.S. at 675 & 679).

A complaint filed by a pro se litigant is to be liberally construed and 

“‘however inartfully pleaded, must be held to less stringent standards than formal 

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pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v. 

Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege 

sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, 

Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must 

contain more than mere legal labels and conclusions. Rather, a pro se complaint 

must recite factual allegations that are sufficient to raise the plaintiff’s claimed 

right to relief beyond the level of mere speculation, set forth in a “short and plain” 

statement of a cause of action.

IV. Discussion.

A. The Favorable-Termination Rule of Heck v. Humphrey Bars Any 

Claims Based on the Issuance of the Citation but Does Not Bar the 

Claims Based on the Initial Condemnation.

The defendants contend that DeRaffele’s claims are barred by the favorabletermination rule of Heck v. Humphrey, 512 U.S. 477 (1994). For the reasons 

discussed below, we conclude that to the extent that DeRaffele’s claims are based 

on the issuance of the citation, they are barred by Heck. But we also conclude that 

DeRaffele’s claims based on the initial condemnation are not barred by Heck. 

In Heck, the United States Supreme Court held that “in order to recover 

damages for allegedly unconstitutional conviction or imprisonment, or for other 

harm caused by actions whose unlawfulness would render a conviction or sentence 

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invalid, a Section 1983 plaintiff must prove that the conviction or sentence has 

been reversed on direct appeal, expunged by executive order, declared invalid by a 

state tribunal authorized to make such [a] determination, or called into question by 

a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-

87, 490 (footnote omitted). “Thus, when a [plaintiff] seeks damages in a § 1983 

suit, the district court must consider whether a judgment in favor of the plaintiff 

would necessarily imply the invalidity of his conviction or sentence; if it would, 

the complaint must be dismissed unless the plaintiff can demonstrate that the 

conviction or sentence has already been invalidated.” Id.

The rationale of the Court in Heck was based, in part, on a desire to avoid 

parallel litigation over the issues of probable cause and guilt, to prevent the 

creation of two conflicting resolutions arising out of the same transaction, and to 

preclude a convicted criminal defendant from collaterally attacking a conviction 

through a civil suit. Royal v. Durison, 254 F. App’x 163, 165 (3d Cir. 2007). Even 

if the plaintiff has exhausted available state remedies, his § 1983 cause of action is 

deferred unless and until the conviction or sentence is reversed, expunged, 

invalidated, or impugned by the grant of a writ of habeas corpus. Heck, 512 U.S. at 

489. A “' 1983 action is barred (absent prior invalidation)—no matter the relief 

sought (damages or equitable relief), no matter the target of the [plaintiff]’s suit 

(state conduct leading to conviction or internal prison proceedings)—if success in 

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that action would necessarily demonstrate the invalidity of the confinement or its 

duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck applies to 

convictions for violation of municipal ordinances at least where, as here,9criminal 

penalties such as fines are at issue. See Shahid v. Borough of Eddystone, No. 

CIV.A. 11-2501, 2012 WL 1858954, at *4 (E.D. Pa. May 22, 2012) (citing and 

cases and determining “that Heck applies to convictions for civil infractions 

obtained in criminal proceedings”), aff’d on other grounds, 503 F.App’x 184 (3d 

Cir. 2012). 

The defendants contend that all of DeRaffele’s claims are barred by Heck 

because his claims are based on the defendants improperly condemning his 

property, and, according to the defendants, a defense to the citation that he 

received is that he did not illegally permit occupancy of condemned property 

because the property was not properly condemned in the first place. Yet the 

defendants have not pointed to anything to support their contention that a violation 

of Section 108.5 of the IPMC—the section of the ordinance that DeRaffele was 

convicted of violating—requires that the underlying condemnation was proper in 

the first place.

 

9

Section 1741.02 of IPMC, as adopted by the City of Williamsport, provides for 

fines or imprisonment for violations of its provisions. Doc. 10-2 at 1 (“Any person, 

firm or corporation, who shall violate any provision of this Code shall, upon 

conviction thereof, be subject to a fine of not less than $100, nor more than $1,000, 

or imprisonment for a term not to exceed 30 days, or both, at the discretion of the 

Court.”). 

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As noted earlier, Section 108.5 of the 2015 IPMC provides:

Prohibited occupancy. Any occupied structure condemned 

and placarded by the code official shall be vacated as ordered 

by the code official. Any person who shall occupy a placarded 

premises or shall operate placarded equipment, and any owner, 

owner’s authorized agent or person responsible for the premises

who shall let anyone occupy a placarded premises or operate 

placarded equipment shall be liable for the penalties provided 

by this code. 

Doc. 10-4 at 3 (emphasis in original). The elements of the Section 108.5 violation 

of which DeRaffele was convicted required: (1) that the premises had been 

placarded by the code official; (2) that DeRaffele was the owner of the premises; 

and (3) that DeRaffele allowed someone to occupy the placarded premises. As the 

recitation of these elements shows, Section 108.5 does not require that the 

premises had been properly condemned in the first place for an owner to violate 

that section by allowing re-occupancy of a placarded premises. It only requires 

that the premises had been placarded by the code official. In fact, the defendants 

themselves seem to recognize this as they assert that “[t]o be convicted of violating 

Section 108.5 of the IPMC, it must be shown that: 1) the subject property was 

condemned; and 2) the property owner permitted occupancy of the condemned 

unit.” Doc. 11 at 14. Neither of those two elements cited by the defendants have 

anything to do with whether the property was properly condemned in the first 

place. Accordingly, while any claim based on the issuance of the citation is barred 

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by Heck because DeRaffele was found guilty of the charge in the citation and he 

has not shown that the state proceedings terminated in his favor,10 DeRaffele’s 

claims based on the initial condemnation, which occurred months before he was 

issued the citation, are not barred by Heck because success on those claims would 

not necessarily demonstrate the invalidity of his conviction pursuant to Section 

108.5 of the IPMC.

B. Due Process.

The defendants urge the Court to dismiss DeRaffele’s due process claim 

because given that there was an emergency caused by the lack of electricity, no 

pre-deprivation process was due to DeRaffele, and there were adequate postdeprivation remedies available to DeRaffele, but DeRaffele failed to take 

advantage of those remedies.

The Fourteenth Amendment provides that a state shall not “deprive any 

person of life, liberty, or property, without due process of law.” U.S. CONST. 

 

10

 Contrary to DeRaffele’s suggestion, the fact that he filed an appeal to the 

Commonwealth Court does not save this claim from being barred by Heck. See

Murphy v. Bloom, No. 1:10-CV-1757, 2011 WL 2115826, at *5 (M.D. Pa. May 27,

2011) (“In short, where Murphy’s direct appeal from his judgment of sentence 

remains pending, he cannot make the necessary showing to proceed with this civil 

rights action that his conviction has been reversed, invalidated, or called into 

question by the issuance of a federal writ of habeas corpus.”), aff’d, 443 F. App’x 

668, 668 (3d Cir. 2011).

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amend XIV, §1. A due process claim requires a two-part analysis. First, the court 

must determine whether the interest asserted by the plaintiff is within the scope of 

protection of life, liberty, or property found in the Due Process Clause. Shoats v. 

Horn, 213 F.3d 140, 143 (3d Cir. 2000). Second, if the interest is one that is 

protected by the Due Process Clause, “the question then becomes what process is 

due to protect it.” Id.

The defendants do not dispute that DeRaffele has a property interest 

protected by due process in 814 Hepburn Street. Thus, the question is whether 

DeRaffele was provided with the process he was due. “To determine what process 

is due in a particular situation, courts consider three factors: first, the private 

interest at stake; second, the risk of erroneous deprivation of that interest through 

the procedures used and the probable value of different procedures; and third, the 

government’s interest.” Mulholland v. Gov’t County of Berks, 706 F.3d 227, 238 

(3d Cir. 2013). “The core of due process is the right to notice and a meaningful 

opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998). “That 

opportunity ‘must be granted at a meaningful time and in a meaningful manner.’” 

Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417 (3d Cir. 2008) 

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 

Due process usually requires some type of pre-deprivation hearing. “As a 

default matter, ‘[i]n situations where the State feasibly can provide a 

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predeprivation hearing before taking property, it generally must do so regardless of 

the adequacy of a postdeprivation tort remedy to compensate for the taking.’” 

Montanez v. Sec’y Pennsylvania Dep’t of Corr., 773 F.3d 472, 483 (3d Cir. 2014) 

(quoting Zinermon v. Burch, 494 U.S. 113, 132 (1990)). “Thus, where the predeprivation safeguards ‘would be of use in preventing the kind of deprivation 

alleged,’ the state must provide such a hearing.” Id. (quoting Zinermon, 494 U.S. at

139). In limited circumstances, however, a post-deprivation hearing may satisfy 

due process such as where there is an emergency that requires ‘“quick action by 

the State,’ or where ‘providing any meaningful predeprivation process’ would be 

impractical.” Elsmere Park Club, 542 F.3d at 417 (quoting Parratt v. Taylor, 451 

U.S. 527, 539 (1981)). In determining whether an emergency exists requiring 

quick action such that a predeprivation hearing is unnecessary, we ask whether 

“there is competent evidence allowing the official to reasonably believe that an 

emergency does in fact exist . . . [and] the discretionary invocation of an 

emergency procedure results in a constitutional violation only where such 

invocation is arbitrary or amounts to an abuse of discretion.” Id. at 418 (footnote 

omitted) (quoting Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999)). But 

“[u]nless exigent circumstances are present, the Due Process Clause requires the 

Government to afford notice and a meaningful opportunity to be heard before 

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seizing real property . . . .” United States v. James Daniel Good Real Prop., 510 

U.S. 43, 62 (1993).

Here, DeRaffele alleges that 814 Hepburn Street was condemned without 

notice or a hearing prior to the closure. The defendants contend that because the 

property lacked electricity there was an emergency situation and, thus, no predeprivation process was required. In that regard, the defendants assert that the 

Code requires all residential units to maintain electrical service. They point to 

Section 604.2 of the IPMC of 2015,

11 which provides: “The size and usage of 

 

11

 Although DeRaffele contends that Williamsport had not adopted the 2015 

version of the IPMC, we reject that argument for the same reason as Judge 

Lovecchio did when DeRaffele raised it in his state appeal of Magisterial District 

Judge Page’s decision. Judge Lovecchio noted the DeRaffele was charged with 

violating Williamsport City Ordinance 1741.01 and more specifically § 108.5 of 

the IPMC of 2015 as adopted by the City Ordinance 1741.01. Doc. 22-1 at 1.

Rejecting DeRaffele’s argument that the City cannot enforce the IPMC of 2015, 

Judge Lovecchio reasoned:

[DeRaffele] claims that Ordinance 1741.01 only adopted 

the 2003 version of the code and not the 2015 version. 

[DeRaffele] argues that because it was not adopted, approved or 

published by the city it “cannot be enforced.”

The 2015 IPMC, admitted as an exhibit during the trial in 

this matter prohibits an owner of a property that has been 

condemned and placarded by a code official to permit an

occupancy of those premises. Article 1741.01 of the 

Williamsport City Code, also admitted as an exhibit during 

trial, specifically adopts the IPMC of 2003.

Clearly the language of Article 1741.01 does not 

specifically adopt the 2015 IPMC. The City argues, however, 

that the 2015 version is enforceable.

First, the City argues that it was authorized to adopt the 

IPMC under the Pennsylvania Third Class City Code and did 

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appliances and equipment shall serve as a basis for determining the need for 

additional facilities in accordance with NFPA 70. Dwelling units shall be served 

by a three-wire, 120/240 volt, single-phase electrical service having a minimum 

rating of 60 amperes.” Doc. 10-4 at 4 (italics in original). Although this section 

appears to deal with the technical requirements for electrical systems in dwelling 

units, it presupposes that a dwelling unit will have electricity. Section 108.1 of the

Code provides that “when a structure or equipment is found by the code official to 

be unsafe, or when a structure is found unfit for human occupancy, or is found 

unlawful, such structure shall be condemned pursuant to the provisions of his 

code.” Id. at 2. Further, Section 108.1.3 provides that “[a] structure is unfit for 

human occupancy whenever the code official finds that such structure is unsafe, 

unlawful or, because . . . the structure lacks . . . illumination.” Id. at 2. Given the 

lack of electricity, it was reasonable for the defendants to believe that the property

 

not need to pass an ordinance specifically adopting each 

revision of the IPMC. 53 P.S. §36018.4 and 53 P.S. §39104.A. 

[T]he City’s position is correct. These code provisions 

permitted the city to incorporate a standard or nationally 

recognized property maintenance code or a variation or change 

by reference without setting forth the text of the code in the 

ordinance. 

The ordinance upon which the City relies was approved 

on April 29, 2004. City ordinance § 1741.01 specifically 

adopts the IPMC of 2003 as published by the International 

Code Council, Inc. The Third Class City code specifically 

authorized the adoption and enforcement of any variations of 

the IPMC of 2003. 

Id. at 2. 

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violated the code and was not fit for human occupancy, and DeRaffele has not 

pleaded facts from which it could reasonably be inferred that the defendants 

actions were arbitrary or an abuse of discretion. Accordingly, based on the 

allegations in the amended complaint, there was an emergency situation, and, as 

such, no pre-deprivation process was due to DeRaffele. 

Given that no pre-deprivation process was due, the issue then becomes 

whether there was an adequate post-deprivation process available to DeRaffele to 

challenge the condemnation. Elsmere Park Club, 542 F.3d at 420 (“Having 

concluded that a predeprivation hearing was not required, we must nevertheless 

determine whether the postdeprivation remedy the Town offered was adequate.”).

Although DeRaffele alleges in this amended complaint that there was no adequate 

post-deprivation remedy available, he has not alleged any facts to support that 

assertion.12 Accordingly, the amended complaint fails to state a due process claim 

upon which relief can be granted. 

We note that in his brief in opposition the motion to dismiss, DeRaffele 

asserts facts that he did not plead in his amended complaint. He asserts that the 

electricity was off for only “a short period of time while the tenant was waiting for 

 

12

 In his brief, DeRaffele asserts that since the tenant cured the violation by having 

the electric turned on, there was no need for a post-deprivation hearing. Doc. 16 at 

9-10. That the tenant had the electric turned back on soon after the condemnation 

notice was posted does not bear on whether there was an adequate post-deprivation 

remedy available to DeRaffele. 

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her paycheck,” and the “tenant had made arrangements for temporary batteryoperated lights as were needed for the few days the electricity was out.” Doc. 15 at 

6.13 DeRaffele also asserts that “in the last several years there have been numerous 

storms and people have been without electric; yet Codes did not go out and 

condemn these properties.” Doc. 16 at 10. Further, he asserts that on the day of the 

condemnation, UGI had closed off Hepburn Street and “every house on the block 

was without gas, and could not provide gas/hot water or gas cooking,” but “none of 

those houses were condemned.” Doc. 15 at 6 and Doc. 16 at 9. Further, DeRaffele

asserts that the defendants condemned his property as revenge for his previous 

lawsuits, which sought to overturn Williamsport’s Rental Ordinance and which

named them, that Evansky and Girardi are angry with him, and that Evansky was 

targeting him. See Doc. 16 at 4, 9-11. As there are no such allegations in the 

amended complaint and the court “is not compelled to accept assertions in a brief 

without support in the pleadings,” Chavarriaga v. New Jersey Dep't of Corr., 806 

F.3d 210, 232 (3d Cir. 2015) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d 

Cir. 2013), we do not consider those factual assertions. Nor do we construe the 

amended complaint as raising a retaliation claim. 

 

13 DeRaffele also points out that since it was July, it did not get dark until late. 

Doc. 16 at 6 (“The tenant had battery-operated lanterns that she used until the 

PP&L electric bill was paid, and they were used for a few hours each day since in 

July it does not get dark until approximately 8:30 pm or 9:00 pm.”). 

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C. Fourth Amendment.

The Fourth Amendment protects “[t]he right of the people to be secure in 

their persons, houses, papers, and effects against unreasonable searches and 

seizures.” U.S. Const. amend. IV. The Fourth Amendment applies to the seizure of 

real property. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 52 

(1993) (“Though the Fourth Amendment places limits on the Government’s power 

to seize property for purposes of forfeiture, it does not provide the sole measure of 

constitutional protection that must be afforded property owners in forfeiture 

proceedings.”). “A ‘seizure’ of property . . . occurs when ‘there is some 

meaningful interference with an individual’s possessory interests in that 

property.’” Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992) (quoting United States v. 

Jacobsen, 466 U.S. 109, 113 (1984)). 

“A reasonableness standard governs whether a municipality’s seizure of a 

building violates the Fourth Amendment.” Thompson v. Armbruster, No. 1:13-CV2885, 2015 WL 853769, at *5 (M.D. Pa. Feb. 26, 2015). “Where a building is 

seized because of the danger it poses and adequate recourse is provided to 

challenge any action taken by the local government, the seizure does not violate 

the Fourth Amendment.” Gardner v. McGroarty, 68 F. App’x 307, 312 (3d Cir. 

2003) (concluding that because the posting of the building as unfit for human 

habitation because of lack of heat was consistent with the Wilkes–Barre Housing 

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Code, “an ‘emergency’ existed as a matter of law, and the emergency justified the 

seizure of Gardner’s apartment building”); see also Thompson, 2015 WL 853769, 

at *5 (granting summary judgment on Fourth Amendment claim where the seizure 

of the property was made because of municipal code violations and the plaintiff did 

not present evidence that the seizure was arbitrary or inconsistent with applicable 

regulations and ordinances); Para v. City of Scranton, No. CIV.A. 3:CV-06-2432, 

2008 WL 2705538, at *16 (M.D. Pa. July 10, 2008) (“[I]f the action taken by the 

Defendants was taken in an emergency situation or their actions adhered to their 

own ordinances or procedures, their actions would not violate the Fourth 

Amendment.”). Thus, generally where a seizure complies with due process is it 

also reasonable under the Fourth Amendment. See RBIII, L.P. v. City of San 

Antonio, 713 F.3d 840, 846 (5th Cir. 2013) (“Because the Fourth Amendment 

generally requires no more than due process of law in summary abatement cases, 

the outcome of a Fourth Amendment claim depends on whether the seizure 

complied with due process.”).

Here, as discussed above, the property was closed because it lacked 

electricity, which was a violation of the Code, and DeRaffele has not alleged facts 

from which it can reasonably be inferred that he did not have adequate recourse to 

challenge that action. Thus, the closure was reasonable. Accordingly, based on 

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24

the allegations in the amended complaint, DeRaffele has failed to plead a Fourth 

Amendment claim upon which relief can be granted.14 

D. Municipal Liability.

In addition to claiming that defendants Girardi and Evansky violated his 

rights, DeRaffele brings claims against the City of Williamsport. Under 42 U.S.C. 

' 1983, a municipality, such as the City of Williamsport, cannot be held liable for 

the unconstitutional acts of its employees on a theory of respondeat superior,

Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978), but a 

municipality may be liable under 42 U.S.C. ' 1983 for its own illegal acts. Connick 

v. Thompson, 131 S.Ct. 1350, 1359 (2011). To state a claim against a 

municipality, the plaintiff must allege that the violation of his rights was caused by 

a policy of the municipality. Id. Municipal policies include the decisions of a 

government’s lawmakers and the acts of its policymaking officials as well as 

municipal customs, which are acts or practices that, even though not formally 

approved by an appropriate decisionmaker, are so persistent and widespread as to 

have the force of law. Id.; Natale v. Camden County Correctional Facility, 318 

F.3d 575, 583 (3d Cir. 2003). In other words, a municipality “‘can be held 

 

14

 Defendants Girardi and Evansky contend that they are entitled to qualified 

immunity. Because we conclude that the amended complaint fails to state a claim 

against them upon which relief can be granted, there is no need to separately 

address whether they are entitled to qualified immunity.

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responsible as an entity when the injury inflicted is permitted under its adopted 

policy or custom.’” Mulholland v Gov’t County of Berks, 706 F.3d 227, 237 (3d 

Cir. 2013) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). 

But “[i]t is well-settled that, if there is no violation in the first place, there can be 

no derivative municipal claim.” Id.at 238 n.15.

We have already determined that the complaint fails to state a claim upon 

which relief can be granted against Girardi and Evansky, the very officials who 

took that action at issue in this case. Thus, as the amended complaint fails to state 

a claim upon which relief can be granted against Girardi and Evansky, it follows 

that it fails to state a claim upon which relief can be granted against the City of 

Williamsport. 

E. Leave to Amend.

“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must 

permit a curative amendment unless such an amendment would be inequitable or 

futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The 

court “must provide the plaintiff with this opportunity even if the plaintiff does not 

seek leave to amend.” Id. We cannot say that amendment would be inequitable or 

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futile in this case. Thus, we will recommend that DeRaffele be granted leave to 

file a second amended complaint.15 

VI. Recommendations.

Based on the foregoing, it is recommended that the defendants’ motion (doc. 

10) to dismiss the amended complaint be granted. It is also recommended that 

DeRaffele be granted leave to file a second amended complaint. 

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. ' 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive

 

15

 Any second amended complaint shall be complete in all respects. It shall be a 

new pleading which stands by itself as an adequate complaint without reference to 

the complaints already filed. It shall not incorporate by reference any of the 

previous complaints. Any second amended complaint shall be titled as a second 

amended complaint and shall contain the docket number of this case.

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further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

Submitted this 3rd day of October, 2016.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

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