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RAY ANGELINI, INC. v. CITY OF PHILADELPHIA

November 24, 1997

RAY ANGELINI, INC.
v.
CITY OF PHILADELPHIA, et al.



The opinion of the court was delivered by: KELLY

 FINDINGS OF FACT AND CONCLUSIONS OF LAW

 R.F. KELLY, J.

 NOVEMBER 24, 1997

 This is an action instituted by Plaintiff Ray Angelini, Inc. ("Angelini" or "Company"), against the City of Philadelphia ("City") and certain officials of the City (collectively, "City Defendants" or "City") and Local Union 98 of the International Brotherhood of Electrical Workers ("Local 98") for allegedly depriving Angelini of its constitutionally protected liberty interests under 42 U.S.C. 1983. The City officials and individual Defendants in this case are: Mayor Edward G. Rendell ("Rendell"); his former Chief of Staff, David L. Cohen ("Cohen"); Louis Applebaum ("Applebaum"), the Commissioner of Procurement for the City; Marla D. Neeson ("Neeson"), Applebaum's Deputy Procurement Commissioner; Gerald Murphy ("Murphy"), Deputy Mayor of Labor for the City; James Coleman ("Coleman"), Deputy Managing Director of the City; Frances Egan ("Egan"), presently Commissioner of the Department of Licenses and Inspections and a former Deputy Managing Director of the City.

 After pursuing administrative remedies which were denied, Angelini initiated a State Court action seeking review of the administrative decision and injunctive relief. In March 1996, Angelini's request for preliminary injunction was denied and in April of the same year, the State Court action was discontinued and this suit was started in the Federal District Court.

 In April 1996, the City solicited bids on two other projects at the Airport (hereinafter referred to as "Bids 6582 and 6583"). On April 25, 1996, the City's Procurement Department notified Angelini that it would not accept Angelini's bids on these projects, as a result of the February 13, 1996 determination that Angelini was not a responsible contractor.

 Angelini requested, and was granted, a hearing on this disqualification by the City on May 7, 1996. The results of this hearing were that Angelini was determined to be a "responsible" bidder and was permitted to submit bids on Bids 6582 and 6583.

 A hearing on Angelini's request for preliminary injunction was held on May 22, 23 and 24, 1996. On May 28, 1996, this Court denied Plaintiff's request for a preliminary injunction.

 A non-jury trial was held on April 16, 17, 18, 21 and 28, 1997. The court notified the parties that under Fed. R. Civ. P. 65(a)(2) testimony from the 1996 injunction hearing would be considered as part of the trial testimony. From that testimony we make the following:

 FINDINGS OF FACT

 1. Plaintiff Ray Angelini, Inc., is a non-union general and electrical contractor based in Sewell, New Jersey, and performs work principally in New Jersey, Pennsylvania, and Delaware. [N.T. 5/24/96, pp.33-34, 35]

 2. The City is a first-class City of the Commonwealth of Pennsylvania and is organized and existing pursuant to Pennsylvania laws and a Home Rule Charter.

 3. Defendant Edward G. Rendell is the Mayor of the City of Philadelphia.

 4. Defendant David L. Cohen was the Chief of Staff to Mayor Rendell from January 6, 1992 to April 4, 1997. [N.T. 4/28/97, pp.3-4]

 5. Defendant Frances Egan is the Commissioner of the City's Department of Licenses and Inspections, having been appointed to that position by Mayor Rendell in September 1996. [N.T. 4/16/97, p.5]

 6. Commissioner Egan was formerly a Deputy Managing Director from November 1992 to September 1996. [N.T. 4/16/97, p.5] 7. Defendant James Coleman is a Deputy Managing Director and has held that position for the last five years. [N.T. 4/16/97, p.46]

 8. Defendant Marla Neeson is the Deputy Procurement Commissioner in charge of the City's service, supply, and equipment contracts. [N.T. 4/16/97, pp.81-82]

 9. At the time of the events in question, Deputy Commissioner Neeson was the Deputy Procurement Commissioner in charge of the City's public works contracts. [N.T. 4/16/97, pp. 81-82]

 10. Defendant Louis Applebaum is the Procurement Commissioner of the City of Philadelphia.

 11. As Commissioner of Procurement, Commissioner Applebaum is in charge of the City department which oversees the bidding process with respect to obtaining for City contracts the lowest responsive and responsible bidders. [N.T. 5/23/96, p.118]

 13. When Commissioner Applebaum was appointed to the position of Procurement Commissioner, Commissioner Applebaum was never instructed as to how to treat contractors who had collective bargaining agreements with labor unions. [N.T. 4/21/97, at p.27]

 14. Defendant Gerald A. Murphy is the City's Deputy Mayor for Labor and has been so for the last five years. [N.T. 5/22/96, at p.56]

 15. Mr. Murphy's duties as Deputy Mayor include overseeing the Labor Standards Unit which monitors the payment of prevailing wages on the City public works projects. [N.T. 5/22/96, p.60]

 16. Angelini was pre-qualified by the Division of Aviation and the Procurement Department to submit a bid to the City on Bid No. 6551 for the Philadelphia International Airport's Terminal B/C Improvements Project -- Package 3. [N.T. 4/16/97, at p.87; N.T. 4/21/97, at p.13; Exhibit P-54]

 17. On December 20, 1995, the City opened bids for the electrical contracting work (Bid No. 6551) for the Philadelphia International Airport's Terminal B/C Improvements Project-Package 3.

 18. On January 5, 1996, 1996, John Dougherty, business manager of Local 98, called Chief of Staff Cohen, but did not speak personally with him. [Exhibit P-1]

 19. On January 5, 1996, Chief of Staff Cohen wrote a memo to Gerald Murphy, Deputy Mayor for Labor, requesting that Mr. Murphy return Mr. Dougherty's phone call. [Exhibit P-1]. When Mr. Murphy returned the call, he was advised by Mr. Dougherty that Angelini had prevailing wage violations [N.T. 5/22/96, pp.68-69; N.T. 5/24/96, pp.15-16]

 20. Mr. Murphy asked Mr. Dougherty to get him the information that he had on Angelini regarding the prevailing wage violations. [N.T. 5/22/96, p.76; N.T. 5/24/96, p.18]

 21. On January 12, 1996, after his phone call with Mr. Dougherty, Mr. Murphy wrote a memo to Chief of Staff Cohen regarding the substance of the phone call. In this memo, Mr. Murphy outlined the facts, listing the various concerns which Local 98 had about Angelini's bid and its bidder status. [Exhibit P-2]

 22. On or about January 19, 1996, Local 98 delivered to the City at various locations, including the Mayor's office and Mr. Murphy's office, a "book" which collected a variety of information relating to Angelini's bid and its bidder status. [Exhibit P-18; N.T. 5/24/96, p.24; N.T. 5/22/96, pp.115-116]

 23. On January 19, 1996, Mr. Murphy again wrote to Chief of Staff Cohen to provide him with an update on the status of his investigation into the complaints that Local 98 had made about Angelini. [Exhibit P-7]

 24. As of January 19, 1996, Mr. Murphy had not yet received information sufficient to warrant a recommendation in favor of a disqualification of Angelini.

 25. On January 22, 1996, Mr. Murphy wrote to the State of New Jersey's Department of Labor requesting information on Angelini's wage violations. [Exhibit P-10]

 26. On January 23, 1996, the State of New Jersey's Department of Labor (NJDOL) replied by letter to Mr. Murphy's letter and stated that the NJDOL had three previous files regarding prevailing wage violations by Angelini over the past five years. [Exhibit P-10]

 27. On January 25, 1996, Mr. Murphy wrote to the NJDOL requesting additional detailed information on Angelini's three New Jersey prevailing wage violations. [Exhibit P-11]

 28. On January 26, 1996, Mr. Murphy wrote a memo to Chief of Staff Cohen in order to update him on his investigation into the concerns that had been raised about Angelini. Mr. Murphy stated that he was still waiting to hear back from the NJDOL regarding more detail on Angelini's three New Jersey prevailing wage violations. [Exhibit P-13]

 29. On January 26, 1996, the NJDOL replied by letter to Mr. Murphy's letter regarding Angelini's previous prevailing wage violations and stated that the amounts paid by Angelini were $ 598.13 in 1991, $ 14,808.39 in 1993, and $ 314.48 in 1995. [Exhibit P-12]

 30. At some time during the last week of January 1996, Mr. Murphy had a discussion with Commissioner Applebaum concerning the status of his investigation into Angelini. At that time, Mr. Murphy informed Commissioner Applebaum orally that he was recommending that Angelini be disqualified. [N.T. 5/22/96, p.167; N.T. 5/23/97, pp.211-212]

 31. Commissioner Applebaum requested that Mr. Murphy prepare a memo in writing stating the reasons in support of his recommended disqualification of Angelini. [N.T. 5/22/96, p.167; N.T. 5/23/97, pp.211-212]

 32. On January 31, 1996, a draft letter was prepared by Procurement advising Angelini of its disqualification on Bid No. 6551. [Exhibits P-22 and P-23]

 33. On February 2, 1996, Mr. Murphy prepared a memo to Commissioner Applebaum, wherein Mr. Murphy recommended that Angelini be disqualified on account of the three New Jersey prevailing wage violations. Mr. Murphy stated in his memo that he believed "it to be in the best interest of the City to award this contract to the next lowest responsive responsible bidder." [Exhibit P-14]

 34. The February 2, 1996 memo was Mr. Murphy's first official recommendation that Angelini be disqualified. [N.T. 5/22/96, p.118]

 35. Mr. Murphy had his February 2, 1996 memo reviewed by the City Solicitor's Office before submitting it to Commissioner Applebaum. [N.T. 5/22/96, p.167]

 36. Mr. Murphy did not discuss Angelini with Councilman Kenney, and Mr. Murphy's recommendation that Angelini be disqualified was not influenced in any way by Councilman Kenney. [N.T. 5/22/96, pp.162-163]

 37. Mr. Murphy's recommendation that Angelini be disqualified was not influenced in any way by Chief of Staff Cohen. [N.T. 5/22/96, p.163]

 38. Mr. Murphy did not discuss Angelini with Mayor Rendell, and Mr. Murphy's recommendation that Angelini be disqualified was not influenced in any way by Mayor Rendell. [N.T. 5/22/96, pp.163-164]

 39. Commissioner Applebaum was free to accept or reject Mr. Murphy's recommendation that Angelini be disqualified. [N.T. 5/23/96, p.213]

 40. On February 2, 1996, the Procurement Department notified Angelini that it was being disqualified from receiving an award of contact on Bid No. 6551.

 41. The Philadelphia Code allows the Procurement Department to disqualify a bidder prior to the award of a contract, but after the opening of bids, if the Procurement Department obtains information which in its opinion adversely affects the responsibility of the bidder. [Exhibit P-42]

 42. The decision of the Procurement Department to disqualify Angelini was made by Commissioner Applebaum and Ms. Neeson and was the result of information that was supplied to them by Mr. Murphy. [N.T. 4/16/97, p.116]

 43. Mayor Rendell did not give any direction to Mr. Murphy in his investigation of Angelini. [N.T. 4/28/97, p.19]

 44. Neither Mayor Rendell nor Chief of Staff Cohen, nor any one else in the Mayor's Office, gave any instruction to Commissioner Applebaum in how to proceed with respect to Angelini or Bid No. 6551. [N.T. 4/28/97, p.20]

 45. In accepting Mr. Murphy's recommendation and in deciding to disqualify Angelini on Bid No. 6551, Commissioner Applebaum was not influenced by Mayor Rendell or Chief of Staff Cohen in any way. [N.T. 5/23/96, p.203]

 46. Local 98 never obtained a copy of Angelini's financial statements. [N.T. 4/16/97, p.178]

 47. Thereafter, on February 13, 1996, an on-the-record evidentiary hearing was held on Angelini's appeal from its disqualification on Bid No. 6551. the panel members included Commissioner Applebaum, and Mr. Coleman, and Commissioner Egan. [Exhibit P-40]

 48. At the hearing, the panel members were represented by counsel from the City Solicitor's Office. [N.T. 4/16/97, p.32]

 49. Both Mr. Coleman and Commissioner Egan were selected at random by the Managing Director's Office through a routine procedure. [N.T. 4/16/97, pp.28,59]

 50. There was no City policy or specific reason which resulted in Commissioner Egan herself in particular being asked to sit on the ...


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