Salameh v. Spossey

• Decision Date: 07 May 1999
• Citation: 731 A.2d 649
• Parties: Dr. Abdul Aziz SALAMEH, Appellant, v. L. Anthony SPOSSEY, Suzanne Gomez and Paul Manning. Dr. Abdul Aziz Salameh, Appellant, v. City of Washington, a Third Class City and/or a Municipal Corporation within the Commonwealth of Pennsylvania; and Robert Sabot, Individually and in his capacity of City Councilman.
• Court: Pennsylvania Commonwealth Court

731 A.2d 649

Dr. Abdul Aziz SALAMEH, Appellant, v. L. Anthony SPOSSEY, Suzanne Gomez and Paul Manning.

Dr. Abdul Aziz Salameh, Appellant, v. City of Washington, a Third Class City and/or a Municipal Corporation within the Commonwealth of Pennsylvania; and Robert Sabot, Individually and in his capacity of City Councilman.

Commonwealth Court of Pennsylvania.

Argued February 8, 1999.

Decided May 7, 1999.

Opinion Amended on Reconsideration July 1, 1999.

Peter M. Suwak, Washington, for appellant.

Christine Seymour, Pittsburgh, for appellee.

Before PELLEGRINI, J., KELLEY, J., and JIULIANTE, Senior Judge. KELLEY, Judge.

In these consolidated appeals, Dr. Abdul Aziz Salameh (Salameh) appeals from an order of the Court of Common Pleas of Washington County (trial court) denying Salameh's post-trial motions and declining to grant a new trial. We affirm.

I. FACTS

Salameh is a medical doctor of Palestinian/Jordanian ancestry who is now an American citizen practicing medicine in Washington County, Pennsylvania. Salameh owned the Duane Hotel on South Main Street located in the downtown area of the City of Washington (City). The trial court charitably described the hotel as an antiquated, ill-kept building. The City cited the hotel on prior occasions for various ordinance and code violations due to its deteriorated condition. In an attempt to improve the structure, Salameh applied for federal and state rehabilitative funds.

In accordance with the regulations governing the receipt of the governmental rehabilitative funds, Salameh applied for a building permit. The City's planning commission approved the application, but expressed concern about the availability of off-street parking as required by City ordinance. The plans were submitted to city council for review. Due to previous problems with the building, the mayor and city council proceeded carefully in its consideration of the permit for reconstruction.

Delays occurred in the issuance of the building permit due to disputes over the available number of parking spaces and whether the parking spaces were in accordance with the zoning ordinance. The trial court ultimately settled the zoning ordinance issue directing the City to issue the building permit.

Salameh then filed a complaint against the City and Robert Sabot (Sabot), a city council member, alleging various civil rights and state tort violations arising out of Salameh's application for the building permit. The City and Sabot filed preliminary objections seeking a more specific pleading which the trial court granted. Salameh's amended complaint included a cause of action for civil rights violations pursuant to 42 U.S.C. § 1983,¹ a claim for discrimination/denial of equal protection also under 42 U.S.C. § 1983, and state tort claims for defamation, commercial disparagement, invasion of privacy, intentional interference with contractual opportunity and intentional infliction of emotional distress.

Salameh also filed an action against L. Anthony Spossey (Spossey), Suzanne Gomez (Gomez) and Paul Manning (Manning)² which, in addition to the same claims brought against the City and Sabot, alleged malicious prosecution and wrongful use of civil proceedings. The trial court consolidated the cases upon motion filed by Salameh. Prior to trial, Salameh filed a motion to challenge the jury array, which the trial court denied. The action finally came up for trial in March 1993.

At the conclusion of Salameh's case, the City, Sabot, Spossey, Gomez, and Manning (hereinafter collectively referred to as "defendants") moved for, and the trial court granted, a directed verdict on Salameh's claims for intentional infliction of emotional distress, commercial disparagement, invasion of privacy and defamation. The trial court sent the claims of civil rights violations, discrimination, intentional interference with contractual opportunity, wrongful use of civil proceedings and malicious prosecution to the jury. The jury returned a verdict on all claims in favor of defendants.

Salameh timely filed a motion for post-trial relief. After several years of delay due to Salameh's inability to secure the record, the trial court held oral argument on the motion. By order dated March 10, 1997, the trial court denied the post-trial motions and declined to grant a new trial. This appeal followed.³

II. ISSUES

Salameh presents the following issues for our review:

(1) whether legal errors resulted in the impanelment of a jury not free from the appearance or reality of bias;

(2) whether the trial court erred as a matter of law when it granted defendant's motion for a directed verdict/non-suit on the claims of defamation, invasion of privacy and commercial disparagement;

(3) whether the trial court erred as a matter of law when it excluded Salameh's proffered evidence related to prejudice against him;

(4) whether Salameh is entitled to judgment notwithstanding the verdict regarding the claim of the violation of procedural due process rights; and

(5) whether the trial court erred as a matter of law when it refused to issue jury instructions as requested and by otherwise issuing erroneous instructions.

III. DISCUSSION

A. Issue 1 — Legal errors with respect to impanelment of the jury

Salameh argues that the trial court committed several legal errors resulting in the impanelment of a jury not free from the appearance or reality of bias.⁴ We will discuss each alleged error separately.

1. Impanelment of the jury

First, Salameh contends that the trial court erred by denying his petition to challenge the jury array.⁵ Salameh argues that the trial court failed to prevent the jury selection process from being contaminated due to the direct and unauthorized interference by employees of the Washington County Commissioners who generated the computer list of jurors to be specially seated for this trial. This alleged contamination, Salameh contends, resulted from the jury commissioners' failure to follow the mandatory statutory provisions contained in Chapter 45 of the Judicial Code which govern the jury commissioners duties with respect to the selection and custody of jurors. Salameh contends that the jury commissioners have unlawfully delegated their statutory responsibilities to the employees of the Washington County Commissioners. Salameh argues that because these duties have been delegated to employees of overtly partisan political officials where a single party dominates the machinery of government, the jury pools are non-representative and partisan. Further, Salameh argues that the jury lists were not drawn from a cross-section of the community. Salameh contends that the lists were not supplemented by other available records resulting in the complete absence of the presence of members of the non-white race and/or ethnic groups, despite their presence in the general population of Washington County.⁶

Pursuant to section 2122 of the Judicial Code, the composition of the jury selection commission in Washington County consists of two elected jury commissioners and the President Judge of the Court of Common Pleas of Washington County. 42 Pa.C.S. § 2122. "Each jury selection commission shall exercise the powers and perform the duties vested in and imposed upon such commissions by Subchapter B of Chapter 45 (relating to selection and custody of jurors) and any other powers and duties vested in and imposed upon such commissions by law." Section 2124 of the Judicial Code, 42 Pa.C.S. § 2124.

Section 4521 of the Judicial Code governs the selection of prospective jurors and provides in pertinent part:

(a) Preparation of master list of prospective jurors.—At least annually the jury selection commission shall prepare a master list of prospective jurors. The list shall contain all voter registration lists for the county, which lists may be incorporated by reference, or names from such other lists which in the opinion of the commission will provide a number of names of prospective jurors which is equal to or greater than the number of names contained in the voter registration list.....

(c) Selection of names for jury service.—At least once each year the commission shall select at random from the master list of prospective jurors the number of names designated by the president judge pursuant to court orders issued under section 4531 (relating to issuance of court orders for jurors).

42 Pa.C.S. § 4521. Pursuant to section 4525 of the Judicial Code, the jury selection commission is authorized to use mechanical devices, such as computers, in the random selection, drawing, investigating, summoning and listing of jurors. 42 Pa. C.S. § 4525.

Herein, the record reveals that the jury selection commission has elected to utilize the computer department for Washington County (computer department) to mechanically generate the master list of prospective jurors as required by section 4521(a) and the court ordered number of names of prospective jurors as required by section 4521(c). See Reproduced Record (R.R.) at 307a—394a. At the suggestion of the court administrator, the president judge and the then elected jury commissioners, the computer department installed a software program on its computer in the 1980s to randomly select prospective jurors based on a computerized formula. R.R. at 338a. The procedure calls for the president judge or the elected jury commissioners to send a formal request to generate a list containing a specified number of prospective jurors to the operations manager for the computer department. Id. In response to the formal request, the computer department mechanically generates the requested juror list and forwards the same to the jury selection commission. Id.

Thus, the mechanical generation of the lists of prospective jurors is the only function that the employees of the computer department of Washington County perform with respect to the selection of prospective jurors in Washington County. Contrary to Salameh's contentions, we...