CHIZMAR v. Bor. of TRAFFORD, No. 2:09-cv-188

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtTerrence F. McVerry
PartiesJAMES CHIZMAR and MARIANNE CHIZMAR, Plaintiffs, v. BOROUGH OF TRAFFORD, FRANK BRUNO, BRIAN LINDBLOOM and CRAIG ALEXANDER, Defendants.
Decision Date29 March 2011
Docket NumberNo. 2:09-cv-188

JAMES CHIZMAR and MARIANNE CHIZMAR, Plaintiffs,
v.
BOROUGH OF TRAFFORD, FRANK BRUNO,
BRIAN LINDBLOOM and CRAIG ALEXANDER, Defendants.

No. 2:09-cv-188

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: March 29, 2011


MEMORANDUM OPINION AND ORDER

Pending now before the Court is DEFENDANT CRAIG ALEXANDER'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 53), with Defendants' joint undisputed statement of material facts and appendix (Doc. No. 58) and brief in support (Doc. No. 55); MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS BOROUGH OF TRAFFORD, FRANK BRUNO, AND BRIAN LINDBLOOM (Doc. No. 56), with brief in support (Doc. No. 57); PLAINTIFF'S RESPONSIVE CONCISE STATEMENT IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Doc. No. 62); and PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 63) with appendix (Doc. No. 64). In reply to Plaintiffs' responsive statement of material facts, Defendants filed a response in opposition (Doc. No. 66), a reply brief to Plaintiffs' responsive statement, and a supplemental appendix (Doc. No. 68). The motions have been fully briefed and are ripe for disposition. After a careful consideration of the motions, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the motions for summary judgment will be granted.

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Procedural Background

On February 13, 2009, Plaintiffs James Chizmar and Marianne Chizmar commenced this action by filing a five count complaint alleging multiple counts of intentional retaliatory conduct by Defendants: the Borough of Trafford ("Trafford" or "the Borough"), Kevin Karazsia (Mayor of Trafford)1, Frank Bruno (Trafford councilman), Brian Lindbloom (Trafford Code Enforcement Officer), and Craig Alexander (solicitor of Trafford). Counts I, II, and IV allege violations of rights guaranteed by the United States Constitution, brought pursuant to 42 U.S.C. § 1983. Count I is captioned "Retaliation - 42 U.S.C. § 1983" and alleges numerous acts of unlawful retaliation in response to Plaintiffs exercise of the their rights protected by the First Amendment. More specifically, Plaintiffs allege that they suffered from retaliation after exercising their rights to raise "safety concerns and circulate petitions over the Bradford Square and Coventry Court developments" see Doc. No. 1 at ¶ 44, in that:

Defendants [Borough of Trafford, Bruno, and Lindbloom] attempted to deter Plaintiffs from exercising their First Amendment Rights by:

a. Directing that the hazardous diesel tank and offensive portable toilet be placed at the edge of their property;

b. Issuing a meritless citation for violation of Section 136-3(F) and fining Plaintiffs ,400.00, without probable cause;

c. Filing an Equity Action without factual support or probable cause;

d. Continuing the Equity Action for months after it was proved that Plaintiffs were not discharging foul or offensive liquid;

e. Directing Trafford police to investigate Plaintiffs for meritless claims that they had pulled out property stakes; and

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f. Citing Plaintiff James Chizmar for disorderly conduct without probable cause.

Doc. No. 1 at ¶ 45.

Counts II and IV are both captioned "Retaliatory Prosecution - 42 U.S.C. § 1983." Count II is brought against the Borough and Defendants Bruno, Lindbloom, and Alexander, and refers to the complaint in equity filed by Defendant Borough against Plaintiffs in the Court of Common Pleas of Westmoreland County, Pennsylvania, on September 17, 2007,2 whereas Count IV is directed to the criminal disorderly conduct citation/summons issued by the Trafford police against Plaintiff husband in August, 2008.

Counts III and V are brought pursuant to Pennsylvania law under supplemental jurisdiction. In Count III of the Complaint, Plaintiffs allege that Defendant Craig Alexander conspired with the other defendants to engage in the wrongful use of civil proceedings with the filing of a complaint in equity against Plaintiffs in Westmoreland County. Defendant Alexander, as solicitor of Trafford, prepared, verified, and filed the September 17, 2007 equity complaint.

Factual background

This action revolves around the development of an area of land within the Borough of Trafford, and the resulting disharmony produced as a result of Plaintiffs' opposition to the development project. In February 2007, Trafford approved a residential subdivision and land development plan for two vacant parcels of land, one parcel to be developed as "Coventry Court" and one parcel to be developed as "Bradford Square". Generally speaking, the Coventry Court

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project is a large tract of land on which a number of homes was to be built. A portion of the Coventry Court site is behind and immediately adjacent to Plaintiffs' property. An unimproved road extends through the Coventry Court parcel, and was situated directly behind Plaintiffs' property.3 The developer, Makenzie Land Partnership LP, owned the Coventry Court parcel, and commenced the construction of residential housing and a road in 2007.

Plaintiffs first became aware of the development at the end of April/beginning of May in 2007, when , in their words, the bulldozers arrived and began working. From that date, a number of occurrences followed that involved Plaintiffs' various interactions with Defendants, the developer, law enforcement officials, and others that formed the factual background upon which Plaintiffs bring their claims. The Court will describe the events in seriatim.

A. Placement of diesel tank and portable toilet close to Plaintiffs' property

The earliest interaction involved the placement of a diesel fuel tank and a portable toilet near the edge of Plaintiff's property. Plaintiffs were initially unaware that the property adjacent to theirs had been approved for development. Once the work on the site commenced in April, a diesel fuel tank and a portable toilet were moved onto the construction site by the developer and placed close to, but not on, Plaintiffs' property, in plain view of the Plaintiffs' backyard. On April 29, 2007, personnel from the Trafford Volunteer Fire Department reported to the construction site to investigate a report that the diesel tank was leaking.4 Despite making some

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effort to stop the leak, including borrowing a pipe wrench from Plaintiff James Chizmar ("Plaintiff husband"), the leak was not entirely abated on that day. On April 30, 2007, the following day, Plaintiff Marianne Chizmar ("Plaintiff wife") left a voice mail message for Defendant Lindbloom. On May 1, 2007, Defendant Lindbloom telephoned Plaintiff wife in response to her voice mail message. In speaking with Defendant Lindbloom, Plaintiff wife complained about the placement of the portable toilet and the diesel fuel tank. She explained that the portable toilet was in plain view of her backyard. Plaintiffs' backyard contained a swimming pool and a volleyball net, and was used by Plaintiffs throughout the summer for outdoor entertaining. According to Plaintiff wife, she was informed that Defendant Lindbloom doubted anything could be done about it.5 A couple of days later, the diesel tank and portable toilet were removed from the construction site. After several months, the diesel tank and portable toilet were apparently returned to the construction site in or around July, 2007. According to Plaintiffs, the two items were returned to the same location close to the edge of Plaintiffs' property. After the items were returned, Plaintiffs did not notice if any additional leaking occurred from the diesel tank. Further, at no time did Plaintiffs complain about any leakage or odors emanating from the portable toilet, either before it was moved or after it was returned. As the property owner, the developer of the construction site was, at all times, responsible for the location placement for the diesel tank and portable toilet.

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B. Trafford police investigation into the removal of engineering stakes

That summer, the Trafford police department investigated a complaint regarding the removal of engineering stakes that had been driven into the ground on the construction site. The following investigative summary is included in a Trafford Police Department incident report dated July 23, 2007:

07/23/2007 07:00 ... [Officer] was met at the station by the [complainant] C/V who stated that they are continuing to have problems out at the construction site off of Hillcrest. The C/V stated they are now having problems with the engineering stakes being pulled out. The stakes are located on the right away [sic] right behind 148 7th Street Ext. According to the C/V, on Saturday July 21st workers at the site saw a male, who lives at 148 7th Street, pull the stakes from the ground. The C/V stated it costs him 0.00 dollars each time a stake is pulled. The C/V also adivsed that they are doing there [sic] best with working with the residents in the area and would like for this not to go any further because he doesn't want to cause any problems. However, he stated if these things continue they may want to look into pressing charges. I advised I would speak to the residents at 148 7th Street Ext and advise.

. . .

Supplemental 07/23/2007 18:25 ... [Officer] spoke to Mr. And Mrs. Chizmar at 148 Seventh Street Ext. Pertaining to stakes being removed from the property line that was set in place by the construction co. owner. ... Mrs. Chizmar declined that they had any involvement in removing the 'No Trespassing' stakes. I spoke with Mr. Jim Chizmar on the phone whom stated, that the 'no trespassing' signs [are] on public easman [sic] is a violation. Both were advised that this is a civil problem that they will have to deal with through the Borough and not the construction co. ...

Doc. No. 54 at exhibit K. The above referenced "C/V" or complainant was Bo Chatfield, the site manager for the Coventry Court project, and an employee of the developer.

The...

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