Pellegrino Food Products Co. v. City of Warren
| Decision Date | 06 December 2000 |
| Docket Number | No. CIV.A. 00-153 Erie.,CIV.A. 00-153 Erie. |
| Citation | 136 F.Supp.2d 391 |
| Parties | PELLEGRINO FOOD PRODUCTS COMPANY, et al., Plaintiffs, v. CITY OF WARREN, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Kevin F. Berry, Thomas B. Fiddler, Cozen & O'Connor, Philadelphia, PA, for Plaintiffs.
Joseph J. Bosick, Jeannette H. Ho, Michael McAuliffe Miller, Pietragallo, Bosick & Gordon, James R. Schadel, Weinheimer Schadel & Haber, Pittsburgh, PA, James T. Marnen, Knox, McLaughlin, Gornall & Sennett, Erie, PA, for Defendants.
Plaintiffs, the Pellegrino Food Products Company (hereinafter "Pellegrino Foods"), Anthony Pellegrino, Sr., Angela M. Pellegrino and Thomas Pellegrino, seek in this action damages and injunctive relief for numerous alleged violations of 42 U.S.C. § 1983 (hereinafter "section 1983") and several state laws. See Complaint, ¶¶ 205-275. The case arises out of Pellegrino Foods' efforts to expand and the resistance it faced from Warren officials, neighborhood residents, and a law firm. Presently before the Court are three motions: 1) a Motion to Dismiss filed by the "City Defendants"1; 2) a Motion to Dismiss filed by Defendant Swanson, Bevivino, Gilford and Stewart, P.C. (hereinafter "Swanson Bevivino"), a law firm; and 3) a Motion for Judgment on the Pleadings filed by the "Neighbor Defendants."2 For the reasons that follow, we grant in part and deny in part the City Defendants' motion, grant Swanson Bevivino's motion and grant in part and deny in part the Neighbor Defendants' motion.
The allegations set forth in the Plaintiffs' Complaint are taken as true for purposes of the motions before us, and are as follows:
Pellegrino Foods is a family-owned business that manufactures and sells food products including peppers, strombolis, pizza bread and pot pies. See Complaint ¶ 34. From the inception of the business in the early 1950s until 1972, Anthony and Angela Pellegrino operated it from the basement of their home. In 1972, the company leased a room from the Warren County Dairy Association Plant located at 100 Lookout Street in Warren, Pennsylvania. The Pellegrinos purchased this plant in 1974, and presently lease it to Pellegrino Foods. The Plant property has at all times since the late 1800s been used for industrial and manufacturing purposes. See Complaint ¶ 37.
In 1981, the City of Warren zoned the property R-2 residential despite Plaintiffs' objections. See Complaint ¶ 40. The City of Warren uses a grant program to encourage the growth of businesses within the city, and Pellegrino Foods received a grant under this program in 1993 in the form of a low-interest loan. See Complaint ¶ 50.
Pellegrino Foods applied for a building permit on June 14, 1993 in order to construct a 40' by 65' freezer unit on the Plant property. Santo Pascuzzi, the chief of the Warren fire department and overseer of the Warren Zoning Officer, replied by correspondence of July 2, 1993 that the permit could not issue absent a special exception from the Zoning Hearing Board. See Complaint ¶ 53. Pellegrino Foods applied for the required exception and attended hearings on the matter. William A. Bevivino, one of the neighbor defendants and a partner in the Swanson Bevivino law firm, attended these hearings and voiced opposition to the expansion. See Complaint ¶ 59. Bevivino specifically argued that noise caused by trucks at the Plant exceeded permissible limits. The Zoning Board required Pellegrino Foods to retain an expert to measure the noise emanating from the Plant, and the Pellegrinos complied with this requirement. See Complaint ¶ 64.
In an August 10, 1993 correspondence on Swanson Bevivino letterhead, Bevivino submitted a number of arguments to the Zoning Hearing Board regarding the special exception, including that the freezer was not a "natural expansion," that it would be detrimental to the public welfare, health and safety, that Pellegrino Foods would need to designate parking spaces to obtain the special exception, and that the Zoning Hearing Board should attach conditions to the special exception. See Complaint ¶ 65. At the reconvened hearing on August 17, 1993, the Pellegrinos' noise level expert testified that the Plant levels were in the permissible range. Crozier, the Zoning Hearing Board Chairman, conducted an independent investigation of the noise levels subsequent to the hearing. See Complaint ¶ 68. By a second correspondence on Swanson Bevivino letterhead dated August 31, 1993, Bevivino argued that Pellegrino Foods did not meet the necessary requirements for a building permit. This letter was sent to Dale Jones of the City's building permit office and copied to City Solicitor William F. Morgan, all members of the Warren City Council, and David Hildebrand. See Complaint ¶ 71. The special exception was granted on September 24, 1993 subject to six conditions.3 The Pellegrinos complied with these conditions and finished construction of the freezer in December of 1993. See Complaint ¶¶ 77-78.
John R. Nemcovsky was elected Mayor of Warren in 1994. He owns and operates Moldsmiths, Inc., a company that contracted with Kinzua Valley, Inc. prior to his election. Kinzua Valley, a business owned and operated by Thomas Pellegrino, brought suit against Moldsmiths to collect a debt on this contract. This suit precipitated a threat by Nemcovsky that all requests by Pellegrino Foods would be personally blocked by him if Thomas Pellegrino did not absolve the Moldsmiths' debt. See Complaint ¶ 84.
On September 12, 1996, Pellegrino Foods and the Warren County School District entered into an agreement of sale for 1.9 acres of school property adjacent to the plant and valuable to the Pellegrinos because it was landlocked. Shortly before the hearing on this matter, neighborhood resident Michael J. Howe offered to purchase the property for $5,000. Three of the four school board members residing in Warren publicly announced their support for the sale but ultimately voted against the agreement. See Complaint ¶ 98. The sale was approved by a 5-4 vote. Pellegrino Foods agreed to pay the higher of two appraisal values for the property, and the School Board thereafter petitioned the Court of Common Pleas for the required approval of the sale. In this matter, the School Board was represented by Arthur J. Stewart, a partner in the Swanson Bevivino law firm, and the hearing was conducted by Judge Paul Millin, a former law partner of both Stewart and Bevivino. See Complaint ¶ 111. Judge Millin denied approval of the sale, and was reversed by the Commonwealth Court.
The Complaint alleges that Warren's zoning ordinance requires businesses to have a number of parking spaces corresponding to the size of the business, and that Bevivino and the City conspired to limit the number of parking spaces available to Pellegrino Foods. See Complaint ¶ 116. Bevivino wrote a letter to City Manager DuPont regarding the parking area on the Lookout Street side of the property, and Zoning Officer Worley instructed the Pellegrinos to stop using this parking area by correspondence of September 10, 1998. The Zoning Hearing Board, upon appeal by the Pellegrinos, affirmed Worley's decision. The Court of Common Pleas reversed the decision of the Zoning Board. See Complaint ¶ 127.
On September 14, 1998, the Pellegrinos applied for a subdivision approval in order to annex the School property to the Plant property. See Complaint ¶ 130. This annexation was opposed by Bevivino and Planning Commission members David See and James Carbon. Despite the Pellegrinos' objections, the Planning Commission was represented by Swanson Bevivino in this matter. In or about 1999, the City adopted a new Comprehensive Plan and reaffirmed the residential classification of the plant property, denying a request by the Pellegrinos to change the classification to industrial and manufacturing. The Plaintiffs allege that other property owners made similar rezoning requests that were granted. See Complaint ¶ 139.
On March 22, 1999, the Pellegrinos applied for a special exception in order to construct an addition to the plant. Shortly after this request, neighbor defendant Glenn Belleau complained to the Warren police of noise coming from trucks at the plant. The police issued a citation to Pellegrino Foods based on this complaint. See Complaint ¶ 154. Plaintiffs allege that the police have pulled over trucks traveling to the Plant and harassed drivers of trucks parked at the Plant.
On April 19, 1994, upon receiving the Court of Common Pleas' decision reversing the Zoning Board and permitting the Pellegrinos to use the Lookout Street parking spaces, City Solicitor Morgan, Fire Chief Pascuzzi, Zoning Officer Worley, Police Chief Poorman and City Manager DuPont convened a meeting. See Complaint ¶¶ 155, 156. At this meeting, the attendees discussed possible means of preventing Pellegrino Foods from expanding. See id. According to the Plaintiffs, the attendees resolved at this meeting to charge the Pellegrinos with noise violations and harass the trucks traveling to and from the Plant property. See id.
Mayor Nemcovsky convened a meeting attended by Pascuzzi, Poorman, Worley, Morgan, DuPont, and William A. Bevivino on May 3, 1999 for the purpose of determining whether criminal charges could be filed against the Pellegrinos for violations of the 1993 special exception's conditions. See Complaint ¶ 162. The attendees suggested that a list of people provided by Bevivino could be contacted and asked to complain about Pellegino Foods if no complaints had been filed. See Complaint ¶ 163. A similar meeting was held on May 5, 1999. See Complaint ¶ 164. Belleau complained a second time to the police of noise emanating from the plant, purportedly to fabricate evidence for a criminal charge. Zoning Hearing Board attorney Fraser advised Worley that there was no basis for enforcement...
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