Gallo v. City of Philadelphia

Decision Date15 August 1997
Docket NumberCivil Action No. 96-3909.
Citation975 F.Supp. 723
PartiesJames J. GALLO, et al. v. CITY OF PHILADELPHIA.
CourtU.S. District Court — Eastern District of Pennsylvania

David L. Lockard, Philadelphia, PA, for plaintiffs.

Jeffrey M. Scott, Office of the City Solicitor, Philadelphia, PA, for City of Philadelphia.

Jay M. Levin, Cozen & O'Connor, Philadelphia, PA, for Rizzo, Goldberg, and Cozen & O'Connor.

Robert G. Hanna, Jr., Marshal, Dennehey, Warner, Coleman and Goggin, Philadelphia, PA, for Kufta.

MEMORANDUM

DALZELL, District Judge.

I. Factual Background

On the morning of Sunday, June 11, 1989, a fire erupted at Gallo Cabinets, a custom cabinet shop plaintiff James J. Gallo owned and operated in Philadelphia. The Fire Department quickly arrived and put out the flames, but not before the store was extensively damaged.

Defendant Assistant Fire Marshall Lt. Renald Pelszynski also arrived on the fire scene that Sunday morning to begin his investigation into the cause of the fire. "At some point after Pelszynski's initial inspection," according to Gallo, Lt. Pelszynski prepared the following Fire Marshal's Incident Report:

Method of IGN [i.e., "ignition"]: Heating Iron to Class A Combustibles

Investigation: Disclosed the fire originating along the north wall towards the west corner of 1724. The fire originates on a wood shelf adjacent to a wall mounted box housing a duplex electrical outlet and an electrical switch. An electrical heating iron used for a lamination process was plugged into the top of the duplex outlet and the iron was found on the wooden shelf. All insulation was burned away from the cord as a result of the fire. An approximately 1 foot long piece of electrical cord remained in the bottom part of the duplex with slight beading noted at the end of the cord. The owner reports that a retracting extension cord was kept plugged in there. Note—the heating iron in question has no on/off switch. Temperature adjustment can be made but the unit must be unplugged to de-energize it.

This property was the site of a 2 alarm fire on 10/25/88. Lt. Sheldon's investigation, cause: electric/wiring.

Ex. 2 of Pls.' Mem. of Law in Response to City of Philadelphia's Mt. for Partial Summ. J. (hereinafter "Pls.' Mem. of Law at Ex. ___.") .

Gallo maintains that the salient point in the report is that Lt. Pelszynski listed the cause of the fire as "ELEC/APPL," meaning, Gallo contends, that Lt. Pelszynski believed an electrical appliance caused the fire, specifically, a "Heating Iron to Class A Combustible." Although Gallo does not know when this report was prepared, he claims that it was the "original report." See Pls.' Mem. of Law at 8.

Gallo then filed a claim for damages with his insurance carrier, defendant Pennsylvania Lumbermens Mutual Insurance Co. ("PLM"). PLM hired defendant Gerald Kufta of Kufta Associates to conduct an investigation into the cause of the fire at Gallo Cabinets. Defendant Kufta Associates in turn retained the law firm of Cozen & O'Connor and its Director of Investigations—and former Philadelphia Fire Commissioner—Joseph Rizzo, to assist in the investigation. Both Cozen & O'Connor and Rizzo are also defendants in this case.

Gallo claims that Kufta and Rizzo visited the fire scene on June 13, 1989. That same day, Rizzo called Lt. Pelszynski, see Pl.'s Mem. of Law at Ex. 3 (time records for Cozen & O'Connor at entry no. 2). Kufta also spoke to Lt. Pelszynski before visiting the fire scene and spoke to him at least once thereafter. See Kufta's Dep. at 94 (attached to Pls.' Mem. of Law at Ex. 4).

Gallo claims that, after speaking with Rizzo and Kufta, Lt. Pelszynski changed his previously prepared Fire Marshal's Incident Report. See Pls.' Mem. of Law at 5. The "revised" Incident Report states, in addition to the text quoted above,

Method of IGN: Open Flame

....

....

The owner, in a telephone interview, stated that the business had closed on Friday at approximately 4:30 pm that the heating irons are no longer used in their laminate process.

Attachment: At 10:00am, 6/28/89, Mr. James Gallo Jr. presented himself at the F.M.O., 3rd & Spring Garden Sts., for a scheduled interview with Lts. R. Pelszynski & J. O'Drain. Mr. Gallo informed Lts. Pelszynski & O'Drain that upon the advice of his lawyer, David Pallett—790-1444, he declined to answer any questions. Mr. Gallo then left the F.M.O. at approximately 10:15am.

It is the opinion of this writer that the cloth was deliberately wrapped around the heating iron several times. The iron was energized by an adjacent duplex outlet controlled by an on/off switch which was found in the on position. The physical examination of the cloth wrapping indicated the damage to be consistent with an external heat application. That heat having been caused by an open flame application to Class A combustible materials present on the shelf by an intentional design.

"At some point thereafter" Lt. Pelszynski referred the Gallo Cabinets investigation to the joint Philadelphia-Federal Arson task force. Pls.' Mem. of Law at 6.1 In July of 1990, the United States Attorney's Office for our District launched an investigation into the fire at Gallo Cabinets, and, on May 31, 1994, a grand jury indicted Gallo on two counts of mail fraud, one court of malicious destruction of a building by fire, and one count of making a false statement to obtain a loan. Defendants Thomas J. Rooney and William J. Campbell, Special Agents of the Federal Bureau of Alcohol, Tobacco, and Firearms ("ATF"), were involved in the federal investigation and eventual criminal prosecution of Gallo.

Gallo's criminal defense attorney then served federal prosecutors with requests for "production of all exculpatory evidence and documents pursuant to Brady v. Maryland." Pls.' Mem. of Law at 8. Gallo claims that the Government failed immediately to produce or disclose the existence of the "original" Fire Marshal's Incident Report, which, Gallo asserts, ruled the fire at his store to be accidental. See id.; see supra pp. 723-724 (quoting report).

Gallo's lawyer also served Cozen & O'Connor, PLM, Kufta, Rizzo, and Lt. Pelszynski with subpoenas, pursuant to Fed.R.Crim.P. 17(c), to produce "all materials contained in their files relating to the Gallo fire." Id. at 9. Gallo charges that these defendants, like the Government, failed immediately to produce or disclose the existence of Lt. Pelszynski's "original" Incident Report. See id.

Finally, on January 6, 1995, the Government produced a copy of Lt. Pelszynski's "original" Incident Report. According to Gallo, "[t]his was the first notice Gallo had as to the fact and existence of a second report Fire Marshal's Incident Report different from the one that was ultimately issued by the Fire Department." Pls.' Mem. of Law at 9.

A week later, on January 13, 1995, Gallo pled guilty to one count of bank fraud in connection with overstating his income in order to obtain a line of credit from Bell Savings Bank. Gallo went to trial, however, on the remaining two counts of the federal indictment on March 21, 1995, and on April 19, he was acquitted of both charges.

Over a year later, on May 23, 1996, Gallo and his wife, Rose Maria Gallo, filed this § 1983 suit against the City of Philadelphia, Lt. Pelszynski, Kufta, Kufta Associates, Cozen & O'Connor, Rizzo, Mitchell Goldberg, an attorney at Cozen & O'Connor, and PLM.2 On January 2, 1997, Gallo filed a new suit, C.A. No. 97-7, against ATF Agents Rooney and Campbell, asserting that they deprived him of his constitutional rights when they failed to produce or disclose the existence of the "original" Incident Report to Gallo until January of 1995, three months before Gallo's criminal trial.3

The City of Philadelphia and Lt. Pelszynski have now moved for partial summary judgment, and ATF Agents Rooney and Campbell have filed a motion to dismiss the case against them. For the reasons elaborated below, we shall grant both motions.

II. Legal Analysis

In order to make sense of the complaint here, it is first necessary to understand what is not at issue.

Gallo does not claim that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct 1194, 10 L.Ed.2d 215 (1963), were violated because, as he himself admits, the Government produced Lt. Pelszynski's "original" (and, in Gallo's mind, "exculpatory") report to him three months before the start of his criminal trial. See Pls.' Mem. of Law at 13 n. 9. Gallo also does not claim that his criminal trial was in any way unfair because, as he himself asserts, he was able to cross-examine witnesses, including Lt. Pelszynski, with the "exculpatory report." See Pls.' Mem. of Law at 15 ("In this case, it is not the fairness of the trial which is the basis for the § 1983 claim, but the fairness of the prosecution.").

Instead, Gallo characterizes his § 1983 claim as follows:

The constitutional wrong being alleged here is not that the exculpatory report was withheld from plaintiff.[4] It was that the report was withheld from the Assistant U.S. Attorney. Plaintiff should never have been prosecuted for arson in the first place. If defendants had disclosed to the prosecutor the report and the circumstances of its alteration, Gallo never would have been [sic]. Even if the U.S. Attorney had been so misguided as to seek an indictment on these tenuous facts, the grand jury — confronted with two contradictory incident reports and no coherent explanation — would probably have refused. By the time the report was finally produced, the harm had already been done. Gallo had been under indictment for seven months, despite the utter lack of probable cause to charge him with arson.

Pls.' Mem. of Law at 12-1:3.

Thus, Gallo hypothesizes that if federal prosecutors had known about or had been told about the "exculpatory report," the Government would not have prosecuted him. And if the Government had, notwithstanding the "exculpatory report," decided to prosecute him (which, of course, it did), the grand jury,...

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