Construction Defects
Pennsylvania Court Confirms That "You Can’t Fight City Hall" Also Applies In The Construction Defect Context
Mark Wiechnik - Herrick, Feinstein LLP
April 16, 2014
After Norristown, Pennsylvania condemned an entire condominium building and forced its owners to relocate due to structural deficiencies and safety concerns, a group of those displaced owners brought suit against the Municipality of Norristown. The grand irony (according to the Plaintiffs) was that it was Norristown's responsibility to properly inspect their condominium building before, during and after construction, which led to the extensive construction defects, now being cited by Norristown as the reason the building had to be evacuated. The Plaintiffs argued that the Norristown building department failed to properly inspect the work of the Developer, and failed to enforce the Pennsylvania Uniform Construction Code, which ultimately led to the defects in the Rittenhouse Club Condominium building. The building inspectors were inexperienced, and failed to uncover obvious, serious and catastrophic structural deficiencies during construction. For example, the Developer had constructed fire exit stairways out of wood (a clear violation of the code). No fines and stop work orders, were ever issued by the building department for that (or any other) condition. Instead, the Municipality issued certificates of occupancy allowing the new owners to move into their units.
The Plaintiffs argued that they had not been afforded due process of law by the Municipality, and that it was the Municipality that created this danger by failing to enforce the law. The District court dismissed the Plaintiffs' claims against Norristown, and the Third Circuit affirmed that decision. The court found that the Municipality had in fact been "negligent and incompetent", but that mere negligence did not rise to the level of a violation of the Plaintiff's substantive due process. Moreover, even though the Municipality had a duty to inspect the work of the Developer, it was ultimately the Developer's actions (or inaction) that created the situation, and not the failures (although numerous) by Norristown. Norristown could not be held liable for the defects, or the condemnation.
This ruling only enforces the old adage that You can't fight City Hall (and win). In the context of transition and construction defect litigation, we at Herrick generally explain to clients and managers and other lawyers, that the building code official is generally immune from liability for those defects. Even though the code official may have accepted the building plans, inspected the foundation, framing and final construction, and ultimately issued certificates of occupancy, it takes more than mere negligence to advance a claim against the municipality.
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SOURCE: www.mondaq.com