Grimm v. Sweeney

• Citation: 249 F.Supp.2d 571
• Decision Date: 07 March 2003
• Docket Number: No. 01-431.,01-431.
• Parties: Gary GRIMM and Grimm Brothers Realty Company, v. Charles R. SWEENEY and Thomas M. O'Donnell.
• Court: U.S. District Court — Eastern District of Pennsylvania

249 F.Supp.2d 571

Gary GRIMM and Grimm Brothers Realty Company, v. Charles R. SWEENEY and Thomas M. O'Donnell.

Civil Action No. 01-431.

United States District Court, E.D. Pennsylvania.

March 7, 2003.

Lloyd George Parry, Davis, Riter, Parry & Hartmann, Philadelphia, PA, for Plaintiff.

David J. Mac Main, Montgomery, McCracken, Walker & Rhoads, Michael J. Butler, Philadelphia, PA, for Defendant.

DECISION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

Plaintiffs Gary Grimm ("Grimm") and Grimm Brothers Realty Company filed this civil action on January 26, 2001 seeking money damages and declaratory and injunctive relief under 42 U.S.C. § 1983 arising from alleged First Amendment retaliation, Fourteenth Amendment due process and state constitutional violations. On July 5, 2001, we granted the defendants' motion to dismiss those counts of the complaint alleging state claims against the defendants' municipal employer, the Borough of Norristown, and the plaintiffs' claim for declaratory and injunctive relief. Discovery was completed on December 5, 2001, after which both parties moved for summary judgment. Following oral argument on these motions, held February 13, 2002, we denied plaintiffs' motion and granted partial summary judgment for defendant on March 11, 2002. Remaining for trial were the plaintiffs claims that 1) the defendants acted in retaliation for the plaintiffs' exercise of their First Amendment rights of freedom of speech and freedom to file law suits; 2) the defendants acted in such a way as to violate the plaintiffs' substantive due process right to be free from arbitrary government action; 3) defendant O'Donnell acted in retaliation for plaintiff Gary Grimm's exercise of his Fourth Amendment right to refuse access to his property; and 4) the defendants' condemnations of 857 Cherry Street and 837 Swede Street violated Article I, Section 8 of the Pennsylvania Constitution. Grimm v. Borough of Norristown, 226 F.Supp.2d 606 (E.D.Pa.2002).

On October 22, 2002, the parties stipulated that all claims would be tried without a jury and before a judge, sitting alone, and we entered an order to that effect. We conducted a non-jury trial from November 20 through November 26, 2002, in Easton, Pennsylvania. Both parties waived their opening statements, and plaintiff called Gary Grimm ("Grimm") to begin the trial. After eliciting extensive testimony from Grimm on direct examination, plaintiffs' attorney agreed to let the defendants call two witnesses out of order. Thereupon, the defense called Kevin McKeon ("McKeon"), a Detective Lieutenant in the Borough of Norristown police department and the supervisor of defendant O'Donnell in his capacity as coordinator of a multi-jurisdiction crime and quality of life task force called the CLEAN team, and William Tims ("Tims"), a police Sergeant in the Borough of Norristown police department. Following the testimony of McKeon and Tims, Grimm resumed the stand. The plaintiffs also called Frank Scipione ("Scipione") as an expert witness on the interpretation of building codes; Joseph Epifanio ("Epifanio"), a former Borough of Norristown council president and mayoral candidate and member of the Norristown Initiative; William DeAngelis ("DeAngelis"), mayor of the Borough of Norristown; Richard Byler ("Byler"), a present director of the Norristown Initiative; Theodore Thompson, Esq. ("Thompson"), one of several attorneys who previously represented plaintiff Grimm in state court proceedings related to the condemnations and citations that are the subject of this case; defendant O'Donnell and defendant Sweeney. The defense called Robert Rosen ("Rosen") as their own expert; Paul Perry ("Perry"), the founder and Chief Executive Officer of the National Association of Investment Landlords ("NAIL I"); Dawn Castro ("Castro"), a former short-term employee of Grimm Mark Bernstiel ("Bernstiel"), an officer in the Montgomery County District Attorney's Office and the supervisor of the CLEAN team; Paul Van Grossi ("Van Grossi"), the Borough solicitor for the Borough of Norristown; plaintiff Grimm and both defendants.

In lieu of closing arguments, we ordered the parties to submit proposed findings of fact and briefs.¹ Based upon the parties' submissions, our evaluation of the evidence presented, and the credibility of the witnesses during the non-jury trial, we have made special findings of fact and conclusions of law. These are set forth more fully infra. See Fed.R.Civ.P. 52(a). We grant judgment for defendants on all claims presented by the plaintiffs.

II. FINDINGS OF FACT

The Parties

1. Plaintiff Grimm Brothers Realty owns six mixed-use properties in the Borough of Norristown. (11/20/02 tr. at 5; 11/21/02 tr. at 64). These include buildings at 202 Jacoby Street, 636 Cherry Street, 857 Cherry Street, 837 Swede Street, 839 Swede Street and 901 Swede Street (11/20/02 tr. at 31, 167; 11/21/02 tr. at 28, 65-66).

2. Grimm Brothers Realty has not received any citations at the 202 Jacoby Street, 636 Cherry Street or 901 Swede Street buildings during times relevant to this action. (11/21/02 tr. at 65).

3. Plaintiff Gary Grimm holds every corporate officer position of Grimm Brothers Realty. (11/20/02 tr. at 2). He also owns a property at 337 East Marshall Street in the Borough of Norristown. (11/20/02 tr. at 5).

4. Mr. Grimm is the public relations director of the Norristown Association of Investment Landlords ("NAIL II"). (11/20/02 tr. at 6). NAIL II is a different organization from the National Association of Investment Landlords ("NAIL I"). (11/22/02 tr. at 194-195). NAIL I was incorporated in 1974, and NAIL II was formed in 1994 (11/22/02 tr. at 194, 199; 11/20/02 tr. at 6). Since late 1999 or early 2000, NAIL I has, through its director, requested that NAIL II cease using the acronym "NAIL" so as to avoid creating the impression that NAIL II is part of or affiliated with NAIL I. (11/22/02 tr. at 200). We do not find credible Grimm's claim that NAIL I merely changed its name to become NAIL II. (11/20/02 tr. at 6).

5. Mr. Grimm is also the Chair of the Civic Life Committee of the Norristown Initiative (NI). NI is an organization originally formed by the Montgomery County Commissioners to address civic issues in the Borough of Norristown. The Civic Life Committee of NI addresses issues of housing, code enforcement and crime. (11/20/02 tr. at 18).

6. Defendant O'Donnell is the Fire Chief, an Assistant Building Inspector for the Borough of Norristown and a member of the multi-jurisdiction CLEAN team. (11/22/02 tr. at 59-60;11/26/02 tr. at 20, 24-25)

7. Defendant Sweeney is the Fire Marshal, Code Enforcement Supervisor, Supervisor of the Fire Department and the Emergency Preparedness Coordinator of the Borough of Norristown. (11/22/02 tr. at 156-57).

Basis of Claims of Retaliation for Exercising Right to Sue

8. NAIL I initiated several lawsuits from 1994 through 1997 against the Borough of Norristown, challenging the licensing fees assessed by the Borough. (11/22/02 tr. at 191-192; 11/20/02 tr. at 6, 8). Joining NAIL I in these lawsuits as plaintiffs were all of its 165 members, which included both corporate entities and individuals. (11/22/02 tr. at 192). Mr. Grimm and Grimm Brothers Realty were among these plaintiffs. (11/20/02 tr. at 7). The Norristown Initiative was not a party to the litigation. (11/21/02 tr. at 52).

9. We do not find credible Mr. Grimm's claim that the court challenges were organized by NAIL II. (11/20/02 tr. at 7). Indeed, Mr. Grimm, under cross-examination, admitted that his organization was not involved in the lawsuit. (11/21/02 tr. at 53). NAIL I initiated and organized these lawsuits. (11/22/02 tr. at 191-192). The leader of NAIL I at that time was its incorporator, founder and CEO, Paul D. Perry, who was the primary plaintiff. (11/21/02 tr. at 53; 11/22/02 tr. at 191,192).

10. The lawsuits initiated by NAIL I were settled favorably to the plaintiffs in December of 1999. (11/20/02 tr. at 10; 11/22/02 tr. at 193).

11. Mr. Grimm's direct involvement in the NAIL I lawsuits was peripheral at best. He had no contact with Van Grossi, the Borough Solicitor defending the Borough in the litigation, and neither he nor Grimm Brothers Realty as an entity was involved in any of the settlement negotiations. (11/22/02 tr. at 193; 11/25/02 tr. at 159). Paul D. Perry, the man known to Van Grossi as the lead plaintiff in the litigation and settlement negotiations, (11/22/02 tr. at 193; 11/25/02 tr. at 159), has extensive knowledge of both the substance of the legal issues involved in the law suits and of the contents of the sealed settlement agreements. (11/22/02 tr. at 193). Grimm's comparatively paltry knowledge of these matters, on the other hand, makes clear that his involvement was minimal. (11/20/02 tr. at 6-9).

12. Mr. Grimm was the public relations liaison for NAIL I during the lawsuits and had contact with the media regarding the progress of the litigation. (11/20/02 tr. at 6; 11/22/02 tr. at 193).

13. O'Donnell did not know that Mr. Grimm or Grimm Brothers Realty were plaintiffs in any of the NAIL I lawsuits. (11/26/02 tr. at 20). Sweeney was aware of the NAIL I lawsuits in March of 2000 and was aware that Grimm and Grimm Brothers Realty were plaintiffs in those suits. (11/22/02 tr. at 157).

14. Defendants were not named parties in any of the law suits brought by NAIL I and plaintiffs. Sweeney testified at a deposition and performed some data-gathering activity for the Borough solicitor's office but was otherwise uninvolved in the litigation. (11/22/02 tr. at 157, 213). O'Donnell also testified at a deposition but was unaware of the content or details of the suits and was otherwise uninvolved in the litigation. (11/22/02 tr. at 60; 11/26/02 tr. at 20). Neither Sweeney nor O'Donnell had any role in answering pleadings, arguing the cases, participating in settlement negotiations or any other aspect of the litigation. (11/22/02 tr. at 213; 11/25/02 ...