Luciani v. City of Phila.

• Decision Date: 01 October 2013
• Docket Number: CIVIL ACTION NO. 10-2918
• Parties: JAMES LUCIANI v. CITY OF PHILADELPHIA, et al
• Court: U.S. District Court — Eastern District of Pennsylvania

JAMES LUCIANI v. CITY OF PHILADELPHIA, et al

CIVIL ACTION NO. 10-2918

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

October 1, 2013

O'NEILL, J.

MEMORANDUM

Now before me is a motion for summary judgment by defendants the City of Philadelphia and Dennis R. Curcio and Robert Foglia, Co-Administrators of the Estate of Enrico Foglia, Deceased. For the reasons that follow, I will grant defendants' motion.

BACKGROUND

Plaintiff James Luciani's claims in this action arise out of his alleged wrongful suspension and termination from the City's Board of Revision of Taxes for his alleged violation of the City's residency rule after he informed the City Controller's office about allegedly corrupt practices in the BRT. From 1985 until 2008, plaintiff was employed by the City of Philadelphia. Compl. ¶ 20. He worked for the BRT from 1989 until 2008 and at the time of the events giving rise to this action was a Real Property Evaluator. Compl. ¶¶ 21-22. In that capacity, plaintiff was charged with the responsibility of assigning a dollar value to large commercial properties in Center City Philadelphia including office buildings and similar structures for real estate tax purposes. Compl. ¶ 22. The BRT's valuations formed the basis for property tax assessments. Compl. ¶ 12. From 1991 until September 2009, Enrico Foglia was the Executive Director of the BRT. Compl. ¶ 9; Ans. ¶ 9. The BRT also had a board whose responsibilities included hearing and issuing decisions on property owners' appeals of their properties' assessed values. Compl. ¶ 13; Ans. ¶ 13.II. Plaintiff's September 2007 Meeting with the City Controller's Office

In September, 2007, around Labor Day, plaintiff met with Philip Bridgeman and his supervisor, William Rempfer, of the Controller's office in connection with a City audit of the BRT's valuation of certain properties. Dkt. No. 39 at ¶ 5; Dkt. No. 42 at ¶¶ 41, 43; Bridgeman Dep. at 4-5, 7-10, 12-17. The Controller's office and the BRT were independent City departments. Dkt. No. 42 at ¶ 42; Davey Dep. at 53-56 (explaining that the staff in the Controller's office "were accountants," not appraisers).

Bridgeman testified that Plaintiff initiated the meeting, claiming that he "[h]ad something to tell" the Controller. Dkt. No. 42 at ¶ 43; Bridgeman Dep. at 12-13, 42-43. At the meeting, plaintiff answered questions about the BRT's decisions to reduce the valuations of certain properties for which he was responsible. Dkt. No. 39 at ¶ 6. Plaintiff claims that at the meeting he "provided Bridgeman and Rempfer with facts and information which revealed and exposed a pervasive pattern of corruption in the BRT that was detrimental to the taxpayers of the City." Dkt. No. 42 at ¶ 45. Responding to questions at the meeting, plaintiff stated that the former Chairman of the BRT, David Glancey, had followed a practice of unilaterally entering into settlement agreements with property owners and/or their attorneys that substantially lowered property valuations. Dkt. No. 39 at ¶ 7; Bridgman Dep. at 12:8-17:14, 20:9-21:8. Plaintiff reported that two lawyers who were active in Democratic Party politics were involved in most of the private meetings resulting in large valuation reductions. Dkt. No. 42 at ¶ 45(c); Luciani Dep. I (Sept. 7, 2011) at 68-73, 77-82, 85-87.

Plaintiff contends that in October 2007, after his meeting with Bridgeman and Rempfer, Bridgeman and Rempfer scheduled a meeting with Charlesretta Meade, then the Chairperson of the BRT Board and certain BRT managers, including Eugene Davey, Robert Zambrano andBarry Mescolotto¹ to discuss, inter alia, plaintiff's statements at his meeting with the Controller's office. Dkt. No. 42 at ¶ 47; Zambrano Dep. at 74-77, Bridgeman Dep. at 21-24. Zambrano testified that at the meeting, Meade expressed concern that plaintiff had made comments about Glancey to Bridgeman." Zambrano Dep. at 75:2-18 ("I'm starting to remember the meeting, that it concerned some of the deals that Dave Glancey made and that [plaintiff] probably shouldn't have brought him into it since he was going or gone at the time and . . . [Meade expressed the view that plaintiff p]robably shouldn't have brought that up. . . ."). Bridgeman testified that when plaintiff's criticism of Glancey came up at the October meeting, Meade and the other BRT employees "of course, denied it. Then, they wanted to know who the evaluator was." Bridgeman Dep. at 23:5-14. Bridgeman declined to identify plaintiff at the meeting, but testified that it was apparent from the discussion that it was plaintiff who had provided information about Glancey's alleged practices to the Controller's office. Id. at 23:13-22. Bridgeman testified that Meade and the other BRT employees expressed annoyance at the allegation against Glancey, saying "it didn't happen that way; they didn't have knowledge of it, let's put it that way." Id. at 23:23-24:7.

Plaintiff testified that after the meeting between the Controller and BRT management, Davey told him that Meade was "livid" because plaintiff had "spoke[n] out against the department" and had "besmirched the good name of Dave Glancey." Luciani Dep. I at 89-90, 92-93; Luciani Dep. II (Oct. 24, 2011) at 73-75. Zambrano testified that Davey told him that plaintiff would have a problem with Meade because she was upset that he had mentionedGlancey to the Controller. Zambrano Dep. at 133:2-24. Plaintiff has not, however, submitted any testimony from Davey about these conversations.

II. Plaintiff's Residence and the Residency Requirement

As a Civil Service employee, plaintiff was required to maintain his bona fide residence in the City. Compl. ¶ 38, Ans. ¶ 38; Phila. Civil Serv. Reg. § 30.01.² Plaintiff contends that while he was employed by the City, he always maintained a bona fide residence in the City. Luciani Dep. I at 4-5, 11-12, 15-16, 64-66; Ex. F (Pl.'s Ans. to Interrog. No. 9).

Plaintiff contends that from 1986 to 1994, he lived in the City on Clearfield Street. Dkt. No. 42 at ¶ 24. He testified that in 1994, he moved to 6642 Roosevelt Boulevard in Philadelphia. Luciani Dep. I at 12:16-23. He asserts that from late 2003 or early 2004, until he was terminated in July, 2008, he "maintained his residence at 2336 East Cumberland Street in Philadelphia." Dkt. No. 42 at ¶ 24, citing Luciani Dep. I at 4-5, 11-13, 64-65, and Ex. F. He contends that he owned and rented out the Cumberland Street property prior to 2004, moving in when his tenants vacated the property in late 2003. Dkt. No. 42 at ¶ 25. Plaintiff asserts that he moved in and hired contractors to do major renovation work because the tenants left the Cumberland Street property "in a deplorable condition." He claims that the renovation work "lasted several years" and that "[a]lthough [he] was able to stay and sleep in his Cumberland Street Residence most ofthe time when the renovations were being performed, there were occasions when he decided to sleep at other locations within the City (including his mother's home on Bustleton Avenue and his aunt's house)." Dkt. No. 42 at ¶ 25, citing Luciani Dep. I at 4-5, 12-17; Luciani Dep. II at 27, 30, 65; Ex. G (Pl.'s Ans. To Interrog. No. 9). Plaintiff asserts that between 2004 and 2007, while he resided at the Cumberland Street property, "he used his mother's address on Bustleton Avenue in Philadelphia as his mailing address after discovering that contractors working at his Cumberland Street Residence had thrown out or lost some of his mail." Dkt. No. 42 at ¶ 32, citing Luciani Dep. I at 119-123.

To support his contention that he resided in Philadelphia during the time in question, plaintiff points to a voter registration card issued by the City in December, 2003. Dkt. No. 42 at ¶ 26, citing Hoover Dep. at 63-64, Mescolotto Dep. at 77-78 and Ex. H. Plaintiff testified that as of 2008, he had voted in the City for at least 20 consecutive years. Dkt. No. 42 at ¶ 28; Luciani Dep. II at 87-88. Plaintiff also cites his driver's license issued by the Commonwealth of Pennsylvania in January 2005 listing the Cumberland Street property as his address. Dkt. No. 42 at ¶ 27; Hoover Dep. at 62-63; Mescolotto Dep. at 77-78; Ex. I. Plaintiff notes that when he lived on Roosevelt Boulevard he had a telephone number with a Philadelphia area code and a listing in the Philadelphia White Pages phone directory. Dkt. No. 42 at ¶ 29; Luciani Dep. I at 64-65. He testified that when he lived at the Cumberland Street property beginning in 2004, he also had a telephone number with a Philadelphia area code. Dkt. No. 42 at ¶ 29; Luciani Dep. I at 64-66. He did not, however, have a land line, at the Cumberland Street address, and the Philadelphia area code he cites during that time period was associated with a cell phone. Luciani Dep. I at 64:3-11 ("When I moved back in, in '04, I just used the cell phone.").

Plaintiff contends that his BRT "supervisors and co-workers were well aware that he was living in the City." Dkt. No. 42 at ¶ 30, citing Luciani Dep. I at 43-46; Zambrano Dep. at 30, 46-47, 56-60 (testimony that he believed that Luciani lived in Philadelphia); Davey Dep. at 52-53 (testifying that he "never thought that [plaintiff] didn't live in the city"). Plaintiff also testified that Foglia had visited him once at Cumberland Street. Luciani Dep. I at 45. Plaintiff further asserts that while he was employed by the BRT, the City performed annual residency checks for all Civil Service employees. Dkt. No. 42 at ¶ 31. He submits testimony from Mescolotto that he "never showed up on any of those checks" as being a nonresident, Mescolotto Dep. at 32:3-4, and Zambrano's testimony that plaintiff "was always okay" when his residency status was checked. Zambrano Dep. at 46:16-17.

Plaintiff and his wife, Autumn Luciani, separated in 1992, but never divorced. Dkt. No. 42 at ¶¶ 34-35; Luciani Dep. I at 10-12, 18-20. After their separation, Autumn moved into 1028 Tatum Street, Woodbury, New Jersey. Dkt. No. 42 at ¶ 36; Luciani Dep....