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CAVILEER v. CITY OF PITTSBURGH

April 12, 1983

THE REVEREND JESSE CAVILEER, THE REVEREND JOSEPH HOULE, and SAMUEL LANE
v.
THE CITY OF PITTSBURGH, a municipal corporation, THE COUNCIL OF THE CITY OF PITTSBURGH, a legislative body and RICHARD S. CALIGUIRI, MAYOR OF PITTSBURGH, in his representative capacity, and WARNER CABLE CORPORATION OF PITTSBURGH



The opinion of the court was delivered by: MANSMANN

 This matter comes before the Court on Motions for Summary Judgment filed by both Plaintiffs and Defendants City of Pittsburgh ("City"), Mayor Richard S. Caliguiri, ("Caliguiri") and the City Council of the City of Pittsburgh ("Council"). This action *fn1" was filed by the Plaintiffs against Defendants alleging that they have been deprived of their rights secured by the First and Fourteenth Amendments to the United States Constitution in violation of Title 42 U.S.C. § 1983. *fn2" For the reasons set forth below, Defendants' Motion is granted. Plaintiffs' Motion, being moot, is denied.

 * * *

 Under Fed. R. Civ. P. 56(c) summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 The Court of Appeals for the Third Circuit has made clear that any doubts as to the existence of genuine issues of fact are to be resolved against the moving party. Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982); Hollinger v. Wagner Mining Co., 667 F.2d 402, 405 (3d Cir. 1981). Further, the facts and the inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Continental Ins. Co. v. Bodie, supra at 438; Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 405 (3d Cir. 1981).

 With the above standard in mind, the facts may be briefly summarized as follows:

 Plaintiffs, the Reverend Jesse Cavileer ("Cavileer"), the Reverend Joseph Houle ("Houle") and Samuel Lane ("Lane") are residents and taxpayers of the City. Each Plaintiff claims that he is a potential subscriber to the cable communication system installed in the City by Warner pursuant to a franchise granted to Warner by the City.

 Defendant Caliguiri is Mayor of the City and as such has the authority to approve or reject resolutions passed by Council.

 Pursuant to its grant of legislative power, Council adopted Ordinance No. 20, "Cable Communications," published as Title I, Article II, Chapter 425 of the Pittsburgh Code ("Ordinance 20"). The purpose of Ordinance 20 was to regulate all phases of the cable communication system in the City, beginning with the erection thereof and continuing through use by subscribers.

 Council then issued a request for proposals in order to award the franchise to one of the bidders. After rejecting the initial proposals which had been submitted, Council issued a second request for bids. In both of its requests for proposals, the City included eight "position papers", one of which was that of Christian Associates of Southwest Pennsylvania ("CASP"), *fn3" a religious agency representing 12 Christian denominations whose membership is composed of citizens of southwest Pennsylvania. Each organization which had submitted a "position paper" set forth its reasons in the "position paper" as to why it should be granted an access channel on the cable system to be selected.

 Upon the receipt of four proposals, Council considered all of them and ultimately awarded the franchise to Warner.

 Shortly thereafter, the City entered into a Franchise Agreement ("Agreement") with Warner which incorporated Warner's proposal into the Agreement.

 Pursuant to the Agreement, the City was given certain rights to regulate various phases of the cable communication system, including, but not limited to, management. As well, the City was to receive revenues in return for the grant of the franchise.

 Warner's proposal, now incorporated into the Agreement, included a provision granting CASP a full-time channel and, as well, $60,000 in equipment *fn4" for use in the production of local religious television programming.

 Additionally, "Christian Associates would program the channel and would assume responsibility for its administration and scheduling." Plaintiffs' Amended Complaint para. 24. Although not limiting participation in programming to members, CASP could invite non-members to participate in programming the channel, but "the procedure for such participation would be determined by Christian Associates . . . ...


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