DeNucci v. Pezza

• Decision Date: 19 December 1974
• Docket Number: No. 73-127-A,73-127-A
• Citation: 329 A.2d 807,114 R.I. 123
• Parties: Anthony DeNUCCI et al. v. Joseph R. PEZZA et al.
• Court: Rhode Island Supreme Court

Page 807

329 A.2d 807

114 R.I. 123

Anthony DeNUCCI et al. v. Joseph R. PEZZA et al.

No. 73-127-A.

Supreme Court of Rhode Island.

Dec. 19, 1974.

[114 R.I. 131] Gibert V. Indeglia, Providence, for plaintiff.

Adler, Pollock & Sheehan, Incorporated, Edward L. Maggiacomo, Providence, for defendants.

OPINION

KELLEHER, Justice.

If today's municipal planner were to visit the town of Johnston and inspect the area adjacent to the intersection of Armento and Diaz Streets, he would shake his head and wonder what went wrong. His view would disclose a series of 'well-kept and well-maintained' dwellings interspersed among such industrial establishments as a slughterhouse, a gravel bank, a cement-mixing plant, a chemical plant, an automobile junkyard and a motor freight terminal. The plaintiffs each own or reside in one of the well-kept homes. Joseph R. Pezza is the sole stockholder of a corporate interstate motor carrier that operates out of a freight terminal owned by him and his wife. The Pezzas and Pezza Transportation, Inc. are before us on an appeal from a judgment entered after a Superior Court justice enjoined certain activities associated with the terminal's operations. Hereinafter, we will whenever appropriate refer to the defendant husband as 'Pezza' and the carrier as 'Pezza Transportation.'

Armento Street runs in a general easterly direction beginning at George Waterman Road and ending at a point near the western bank of the Woonasquatucket River. Diaz Street, as it runs in a northsouth direction, meets and intersects Armento Street. Anthony DeNucci and his sister live on the easterly side of Diaz Street in the DeNucci family homestead. Their parents, both deceased, purchased this real estate in July 1923. Their deed contained restrictive covenants calling for a mandatory building setback of 10 feet from the street line and a minimum $1,000 value for any dwelling built on the premises. Michael Accetturo and Fred Zinni are Anthony's brothers-in-law. Michael, his wife and their children are Anthony's next-door neighbors. Fred and his family live on Orlando Street-one block to the west of Diaz Street. Michael's house was erected in 1960, Fred purchased his property in 1950.

The freight terminal is located on the southerly side of Armento Street just below the Armento-Diaz intersection. It is described in the record as a modern one-story L- shaped brick building with a loading dock designed for tail-gate loading.

Pezza's first contact with the motorized transportation industry occurred in 1959 when he started hauling livestock. Later, he won a government contract involving the delivery of mail. In 1961 he purchased the interstate commerce rights of a general commodities carrier, and business began to improve. Sometime in 1969 Pezza Transportation ¹ began to enter into a series of so-called interchange agreements with other interstate carriers, all of whom are headquartered at points outside of Rhode Island. Under this arrangement, an out-of-state carrier's tractor-trailer rig would come to Armento Street, the trailer would be disconnected, and the shipment would be transferred to Pezza Transportation trucks. The trucks would then make deliveries throughout Rhode Island and numerous locations in Massachusetts. After delivery, cargo destined for the original carrier would be loaded onto the trucks and return to the Johnston terminal. There, the cargo would be transferred to a trailer that would be departing for an out-of-state destination.

The interstate agreements caused a substantial increase in the Armento Street traffic and presented Pezza with a space problem. Consequently, in June 1970, Pezza and his wife purchased a parcel of unimproved land that fronted on the northerly side of Armento Street and bounded southerly on the DeNucci property. The parcel which was directly across the street from the terminal had been cleared and graded. It served as a combination switching yard and parking lot. The out-of-state rigs would come into Johnston at all hours of the night and day. Sometimes the tractor's crew would 'unhook' the tractor, 'hook' the tractor to a waiting trailer, and immediately leave. Often the rigs would roll in during the late night or early morning at a time when the terminal was closed. Many of these rigs were owned by a carrier that transported freight from the states of Florida, Georgia, and South Carolina to the New England area and returned to their original point of departure with cargo destined for delivery in that part of the country.

The creation of the parking lot precipitated this litigation. The trial justice listened to testimony indicating that the nighttime arrival of the trailer trucks caused noise of such a volume that it would wake up plaintiffs and members of their families. The plaintiffs' witnesses spoke of the roar of the tractors' diesel engines as well as the noise emanating from the motors of the refrigerated trailers that were parked in the lot awaiting the arrival of a tractor. There was evidence of an increase in the decibel count as the driver tried to attach his tractor to a trailer. Some of the witnesses told of tractors being allowed to remain in the not with their motors running for long periods of time.

While denying that any of plaintiffs' complaints could be directed at his corporate employees, Pezza conceded that he had no control over the actions of the out-of-state carriers whose crews and vehicles arrived at the Armento Street lot at any time around 10 p.m. It was agreed that a careless driver in backing his tractor up and under an unattached trailer could give the locking mechanism a real 'wallop.' There was evidence that at times the crew would sleep in the trailer's cab as they waited in the parking area for 7 a.m. and the beginning of another day's business across the street at the terminal. One witness described how the trucks were designed so that on a long haul one man could sleep while the other drove. There was also testimony indicating that on cold nights the tractor's crew would run the engine to warm up the interior of the cab. A neighbor told the trial justice that she was awakened by the 'hooking' and the 'unhooking' and complained to the police.

It was stipulated by the litigants that the land lying to the north of Armento Street (including plaintiffs') was classified as industrial when Johnston adopted a zoning ordinance in 1952. The property on Armento Street's southerly side was zoned general residential. The freight terminal enjoys status as a legal nonconforming use.

There is no question that the trial justice was favorably impressed by plaintiffs' complaints about the parking lot noises and a consequent loss of sleep. As we begin our consideration of the issues presented in this case, we will turn to the classics and recall what has been said about the precious commodity called sleep.

We need only to refer to the fabled Don Quixote, where Cervantes wrote:

'Blessing on him who invented sleep,-the mantle that covers all human thoughts, the food that appeases hunger, the drink that quenches thirst, the fire that warms cold, and the cold that moderates heat, and, lastly, the general coin that purchases all things, the balance and weight that equals the shepherd with the king, and the simple with the wise.' (Jarvis's translation)

The defendants who, we are sure, find no fault with the thoughts expressed by such a distinguished mind as Cervantes do indeed fault the trial justice because...