161 F.3d 217 (3rd Cir. 1998), 98-1071, Gallo v. City of Philadelphia

Docket Nº:98-1071, 98-1238.
Citation:161 F.3d 217
Party Name:James J. GALLO, Jr.; Rose Maria Gallo, Appellants v. CITY OF PHILADELPHIA; Renald Pelszynski, Lt., individually and in his official capacity; Joseph Rizzo, Individually; Mitchell S. Goldberg, Individually; Gerald J. Kufta, individually; Kufta Associates; Cozen & O'Connor; Pennsylvania Lumbermen's Mutual Insurance Company; [*]Thomas J. Rooney, in hi
Case Date:November 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 217

161 F.3d 217 (3rd Cir. 1998)

James J. GALLO, Jr.; Rose Maria Gallo, Appellants


CITY OF PHILADELPHIA; Renald Pelszynski, Lt., individually

and in his official capacity; Joseph Rizzo, Individually;

Mitchell S. Goldberg, Individually; Gerald J. Kufta,

individually; Kufta Associates; Cozen & O'Connor;

Pennsylvania Lumbermen's Mutual Insurance Company;

[*]Thomas J. Rooney, in his individual

capacity; William J. Campbell, in his individual capacity

Nos. 98-1071, 98-1238.

United States Court of Appeals, Third Circuit

November 23, 1998

Argued Oct. 8, 1998.

As Amended Dec. 7, 1998.

Page 218

David Rudovsky (argued), Kairys, Rudovsky, Epstein, Messing & Rau, Philadelphia, PA, Franklin E. Fink, David Lockard & Assoc. P.C., Philadelphia, PA, for Appellants.

City of Philadelphia, Law Department, Stephanie L. Franklin-Suber, City Solicitor, Marcia Berman (argued), Assistant City Solicitor, Appeals Unit, Philadelphia, PA, for Appellees Lt. Renald Pelszynski and City of Philadelphia.

Michael R. Stiles, United States Attorney, Joan K. Garner (argued), Deputy Chief, Civil Division, Assistant United States Attorney, Philadelphia, PA, for Appellees Thomas J. Rooney and William J. Campbell.

BEFORE: GREENBERG, NYGAARD, and NOONAN, [**] Circuit Judges.


GREENBERG, Circuit Judge.


After a jury acquitted him of charges that he deliberately had set fire to his business in Philadelphia, James Gallo brought suit under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the City of Philadelphia and the municipal and federal officials responsible for investigating his case. 1 Gallo claimed that the municipal fire marshal had altered his views on the fire's cause in response to pressure from representatives of Gallo's insurance company, and that all of the officials had withheld exculpatory evidence from the United States Attorney. The district court, construing Gallo's suit as a claim of malicious prosecution, concluded that the Supreme Court's recent decision in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), required Gallo to show that he had suffered a Fourth Amendment seizure. The court ruled that the pretrial restrictions imposed upon Gallo, which included posting a bond and limiting interstate travel, did not amount to a seizure. It therefore granted the City and municipal defendants' summary judgment motion and the federal officials' motion to dismiss. See Gallo v. City of Philadelphia, 975 F.Supp. 723 (E.D.Pa.1997). Because we conclude that the intentional restrictions imposed on Gallo's liberty qualified as a seizure, we will reverse. We have jurisdiction under 28 U.S.C. § 1291; the district court had subject matter jurisdiction based on 28 U.S.C. §§ 1331, 1343(a) and 1367.

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  1. Factual History

    Inasmuch as the district court resolved this case by granting a motion to dismiss and a motion for summary judgment, we consider the facts in the light most favorable to Gallo. See Smith v. National Collegiate Athletic Ass'n, 139 F.3d 180, 183 (3d Cir.), cert. granted and denied, --- U.S. ----, ----, 119 S.Ct. 31, 170, 141 L.Ed.2d 791 (1998); Hilfirty v. Shipman, 91 F.3d 573, 577 (3d Cir.1996). On June 11, 1989, a fire extensively damaged Gallo's Cabinets, a shop in Philadelphia owned by appellant, James Gallo. Lt. Renald Pelszynski, a Philadelphia fire marshal dispatched to the scene to establish the fire's cause, concluded that the fire started when a hand iron ignited a cloth. Pelszynski recorded his conclusion about the fire's origin in a Fire Marshal's Incident Report. Gallo claims that nothing in this report suggested that the fire resulted from arson.

    After the fire, Gallo filed a claim with Pennsylvania Lumberman's Mutual Insurance Company, which indirectly employed two persons to investigate the fire's cause, Gerald Kufta and Joseph Rizzo. Kufta is an investigator and Rizzo is a former Philadelphia Fire Commissioner. Kufta and Rizzo contacted Lt. Pelszynski to discuss the fire's circumstances without complying with Fire Department procedures that required them to apply in writing to speak to Pelszynski. The record does not include any documentation of the substance of their conversations.

    Gallo claims that after Pelszynski spoke to Kufta and Rizzo, he changed his Fire Marshal's Incident Report in two primary ways. First, he altered the cause of fire entry from electrical appliance to incendiary, thus suggesting arson. Second, he added text to the report stating his view that someone deliberately had wrapped a cloth around the heating iron to start the fire. Gallo claims that Pelszynski never disclosed the existence of the "original" report, and that, in fact, he took steps to conceal it.

    After filing the allegedly revised report, Pelszynski referred Gallo's case to the joint Philadelphia-Federal arson task force. The United States Attorney's Office opened a criminal investigation in July 1990, and Thomas Rooney and William Campbell, agents from the Bureau of Alcohol, Tobacco & Firearms, were assigned to the case. Subsequently, Rooney prepared a report in which he stated that the Fire Marshal's office had ruled that the origin of the fire was incendiary and in which he made no mention of Pelszynski's original report.

    On May 31, 1994, a federal grand jury indicted Gallo on two counts of mail fraud, one count of malicious destruction of a building by fire, and one count of making false statements to obtain a loan. After responding to a notice, Gallo was arraigned on the charges on August 4, 1994, and was released on a $10,000 personal recognizance bond. He never was arrested, detained, or handcuffed. As a condition of his release, the court prohibited Gallo from traveling beyond New Jersey and Pennsylvania and instructed him to contact Pretrial Services weekly. These restrictions remained in effect through Gallo's trial in March 1995, a period of over eight months from when the court imposed them.

    After the indictment, Gallo requested the United States Attorney's Office to produce all exculpatory material, but the government initially did not provide him with a copy of the original fire marshal report. Moreover, neither Kufta, Rizzo, nor Pelszynski produced this report in response to Gallo's subpoenas seeking all materials in their possession that related to the Gallo fire.

    On January 6, 1995, approximately two months before his trial, Gallo learned of the existence of Pelszynski's original report when the United States Attorney's office supplied it to him. The government claimed that the report came from Rooney's files but that Rooney was unsure of its origin.

    Although Gallo pled guilty to the count of making a false statement to obtain a loan, he went to trial on the other counts of the indictment. During the trial, Gallo used Pelszynski's original report to cross-examine him, but Pelszynski claimed that he knew nothing about the report and had concluded from the beginning of his investigation that the fire at Gallo's Cabinets had been set

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    intentionally. The jury acquitted Gallo of all remaining charges in the indictment.

  2. Procedural History

    Following his acquittal, Gallo filed two separate suits alleging violations of his federal rights. In the first suit under 42 U.S.C. § 1983, he claimed that the City of Philadelphia, Pelszynski, Kufta and Rizzo, among others, had caused the federal government to prosecute him without probable cause. In the second suit, a Bivens action, Gallo contended that Rooney and Campbell had deprived him of his constitutional rights by failing to disclose the existence of the "original" report until two months prior to trial. The district court consolidated the cases.

    Subsequently, the City of Philadelphia and Lt. Pelszynski filed a motion for summary judgment arguing in part that Gallo had suffered no constitutional injury justifying a section 1983 action because he had not been "seized" within the meaning of the Fourth Amendment. Rooney and Campbell filed a motion to dismiss contending that they had qualified immunity and that, in any case, failure to turn over exculpatory material in a more timely manner was not a constitutional injury.

    The district court granted both of these motions for the same reason in the same opinion and order. Construing Gallo's complaint as alleging a claim of malicious prosecution, 2 the court found that the Supreme Court's recent decision in Albright v. Oliver...

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