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Pacitti v. Durr

March 24, 2008


The opinion of the court was delivered by: Conti, District Judge


In this memorandum opinion, the court considers the motion for summary judgment (Doc. No. 77) filed by defendant Richard E. Durr ("defendant" or "Durr") with respect to all claims against Durr asserted by plaintiffs Joseph Pacitti ("Pacitti") and Ben Cinquegrana ("Cinquegrana") (collectively "plaintiffs"). In the complaint, Pacitti asserted state law claims against Durr for ethnic intimidation under 42 PA. CONS. STAT. § 8309, defamation of character, invasion of privacy and civil rights violation under 42 PA. CONS. STAT. § 8309.*fn1 Cinquegrana asserted a state law claim against Durr for defamation of character. Jurisdiction over these claims arises under 28 U.S.C. § 1332, which relates to diversity jurisdiction. After considering the joint concise statement of undisputed material facts ("joint statement" or "J.S.") and the other submissions of the parties, viewing all disputed facts in favor of plaintiff and drawing all reasonable inferences in favor of plaintiff, defendant's motion for summary judgment will be granted.

Factual Background

Seapointe Condominium Association, Inc. ("Seapointe" or the "Association") is located in Key Colony Beach, Florida. (J.S. ¶ 1.) Seapointe consists of fifteen condominium units. (Id.) Pacitti, and defendant, Durr, both own condominiums at Seapointe. (J.S. ¶¶ 4, 8.) Cinquegrana owns a construction business called Professional Construction Management, Inc. (J.S. ¶ 7.) Cinquegrana's company was hired by Pacitti to remodel Pacitti's condominium. (J.S. ¶¶ 28-29.) Cinquegrana's company was also retained by other Seapointe owners to perform certain renovations and other projects. (J.S. ¶ 43)

Durr was appointed to Seapointe's board of directors in March 2002. (J.S. ¶ 9.) In March 2003, Durr was appointed president of the board of directors. (Id.) Durr's presidency ended effective November 1, 2005. (Id.) During the time period in question, in addition to Durr, the members of the board of directors included, among others, Pat Egan ("Egan") and Ken Luneack ("Luneack").

During Durr's presidency, Durr became aware, by reviewing certain public records, that Pacitti had mortgaged his condominium unit and that the Internal Revenue Service had placed a lien against Pacitti's condominium unit. (Id.)

Seapointe Condominium Bylaws

Every Seapointe condominium owner*fn2 is subject to the Seapointe Declaration of Condominium and the related bylaws (the "bylaws"). (J.S. ¶¶ 2, 3.) Among other things, the bylaws provided that each owner of a Seapointe condominium is "obligated to pay the common charges assessed by the Board of Directors." (Pacitti Dep. Ex. 1 at RD00160.) In the event that an owner does not pay the common charges, the owner is in default. (Id.) In the event of default, the board of directors may initiate an action to collect the common charges and foreclose a lien for nonpayment of the charges. (Id.) The bylaws further provide that "[n]o owner shall make any structural addition or alteration to his residential unit without the prior written consent of the Board of Directors." (Id. at RD00162.) The bylaws grant a person authorized by the board of directors, and others, the right of access to each residential unit from time to time during reasonable hours in order to maintain, repair, or replace any common elements in them or accessible from them, or to make emergency repairs necessary to prevent damage to common elements or to any other residential unit or units, or to correct any condition in violation of any mortgage secured by any residential unit. Requests for access shall be made in advance and shall be set for times convenient to the owner. Notwithstanding the preceding sentence, in the event of emergency, right of access shall be immediate, and shall operate regardless of whether the owner is present. (Id.)

With respect to the purpose and use of the Seapointe condominiums, the bylaws provide in pertinent part:

11.01. Residential units shall be used and occupied by their respective owners as private single-family residences for themselves, their families and social guests, and for no other purpose, other than where specific exceptions are made in this Declaration.

11.02. In order to provide for a congenial occupation of the Condominium and for the protection of the value of the residential units, the use of the property shall be restricted in accordance with the provisions of this Article.


11.023. No nuisance shall be allowed upon the Condominium property, nor shall any practice be allowed which is a source of annoyance to residents or which will interfere with the peaceful possession and proper use of the Condominium property by residents.

11.025. No immoral, improper, offensive or unlawful use shall be made of the Condominiums [sic] property nor of any residential unit or boat slip or any portion of either.

11.027. Reasonable regulations concerning use of the Condominium property, and especially the common elements and limited common elements, may be promulgated by the Condominium Association, which includes, without limitation, a prohibition upon the keeping of pets. Copies of all regulations shall be furnished to all owners. (Id. at RD00118-19.) On May 21, 1988, the Seapointe board of directors adopted new rules related to rentals at Seapointe. The rental rules provide in relevant part:

All rentals, leases, and transfers require notification to, and approval of, the Board of Directors. Notice shall include the following:

a. Names and addresses of ALL parties to occupy the premises.

b. Dates of occupancy.

c. Copy of the rules signed by the lessee, renter, or transferee.


Rentals, leases and transfer shall be limited to three (3) per calendar year, none of which shall be for a period of less than one (1) month. (Pacitti Dep. Ex. 28) (emphasis in original). Additionally, the condominium association requests that owners notify either the building manager or the board when owners have guests in the ... building. (Luneack Dep. at 12.) Although the notification about guests is not a requirement, it is a courtesy that owners extend to their Seapointe neighbors and the building manager. (Id.)

With respect to officers of the board of directors, Article VII of the bylaws provides that "[t]he affairs of [Seapointe] are to be managed by a President, Vice President, Secretary and Treasurer who will be accountable to the governing board." (Pacitti Dep. Ex. 1 at RD00149.) The bylaws further designate the powers and duties of the board of directors. Article II, section 2.03 provides:

The board of directors shall have the powers and duties necessary for the administration of the affairs of [Seapointe], and may do all such acts and things as are not by law, by the Declaration, or by these Bylaws directed to be exercised and done by the owners. The powers and duties to be exercised by the Board of Directors shall include, without limitation, the following:

(a) The maintenance, repair, replacements, cleaning, and sanitation of the common elements;

(b) The determination, assessment, and collection of funds for common expenses, and payment of such expenses;

(c) The adoption, distribution, amendment, and enforcement of regulations governing the use and operation of [Seapointe] and the use of the common elements, subject to the power of a majority vote of the owners to change any such regulations;

(e) The maintenance of accounting records, in accordance with law and generally accepted accounting principles, which records shall be made available for inspection by owners and mortgages at all reasonable times;

(f) The authorization and prosecution, in the name of [Seapointe], of any and all actions and proceedings deemed necessary or appropriate in furtherance of the interest of owners generally, including suits to foreclose liens for nonpayment of assessments or to recover money judgments for unpaid assessments; (Id. at RD001545.) Article III of the bylaws relating to officers provides:

The president shall be the chief executive officer for the Association. He shall preside at all meetings of the Board of Directors and of owners. He shall have all general powers and duties that are incident to the office of President of a Florida corporation not for profit including, without limitation, the power to appoint .... committees from among the owners from time to time as he may deem appropriate in order to assist in conducting the affairs of the Association. (Id. at RD00157) (emphasis added).

Payment of Assessments and Other Condominium Fees

On many occasions, Pacitti failed to pay timely his assessment fees as required by the bylaws. (J.S. ¶¶ 11-15 .) By way of delinquency notices, the Association advised Pacitti that his 1986 second quarter maintenance fees were delinquent. (Pacitti Dep. Ex. 8.) At the time the 1986 second quarter delinquency notices were issued, Pacitti owed the Association more than $8,000. (Id.) On October 20, 1986, an Association representative sent Pacitti a letter indicating that Pacitti was delinquent in paying certain assessment fees. (Pacitti Dep. Ex. 13.) The October 20, 1986 letter indicated that Pacitti's units and boat slip fees were in arrears in the amount of $3,888.30. (Id.) Pacitti does not dispute that he owed these funds and that they were past due. (Pacitti Dep. at 71-72.)

The following year, Pacitti was provided with delinquency notices relating to the 1987 fourth quarter. (Pacitti Dep. Ex. 21.) The 1987 fourth quarter delinquency notices indicated that Pacitti was in arrears for more than $5,000. (Id.) Pacitti does not dispute that he owed these funds and that they were past due. (Pacitti Dep. at 82-83.)

As a result of Pacitti's failure to pay timely the fees associated with his condominium, the Association, in 1987, commenced a lawsuit against Pacitti. By letter dated November 4, 1987, counsel for the Association attempted to settle the lawsuit by requesting that Pacitti pay forthwith the past due assessments for the second, third and fourth quarters of 1987. (Pacitti Dep. Ex. 22.) Pacitti does not dispute that these fees were past due. (Pacitti Dep at 83-84.) Instead, Pacitti asserts that he failed to pay the assessments because he was in the midst of a lawsuit with the Association during this time frame. (Pacitti Dep. at 84.) On February 8, 1988, Pacitti paid the past due assessments. (Pacitti Dep. at 85.) On March 24, 1988, the Association voluntarily dismissed its action against Pacitti. (Pacitti Dep. Ex. 25.)

On October 1, 2002, the Association filed a claim of lien for condominium assessments against Pacitti's condominium. (Pacitti Dep. Ex. 35.) The lien resulted from Pacitti's failure to pay maintenance fees for the 2002 third and fourth quarters as well as other special assessments. (Id.) The lien was in the amount of $19,279.22. (Id.) The lien was recorded in Monroe County, Florida. (Id.) Pacitti does not dispute that he owed these assessments and that they were past due. (Pacitti Dep. at 93-94.)

On May 6, 2003, Durr wrote a memorandum to Seapointe owners addressing various matters. One of the matters raised was that Pacitti had not "sent in his second quarter assessment, which was due on April 1st." (Pacitti Dep. at 99.) Pacitti does not dispute that his 2003 second quarter assessments were past due. (Pacitti Dep. at 99.)

By letter dated April 15, 2004, Durr advised Pacitti that he was one of three owners who had not yet paid the 2004 second quarter assessments. (Pacitti Dep. Ex. 59.) Durr's letter indicated that the Association relied on the payment of assessment fees in order to pay liabilities incurred by the condominium association. (Id.) The letter further indicated that the Association board members had paid the third and fourth quarter assessments in advance to help the Association with cash flow shortages. (Id.) Durr's letter reminded Pacitti that assessments are due on the first day of each quarter and requested Pacitti to remit promptly his payment. (Id.) The letter was copied to David Rogel ("Rogel"), counsel for the Association. Pacitti does not dispute that he had not paid his 2004 second quarter assessments. (Pacitti Dep. at 116.) Pacitti did not know why his assessments were not paid, but asserted that his secretary generally handled those matters. (Pacitti Dep. at 116-17.)

On May 5, 2004, Durr again sent Pacitti a letter regarding the 2004 second quarter assessments and other assessment fees. (Pacitti Dep. Ex. 62.) The May 5, 2004 letter indicated that Pacitti was the only owner who had not paid the 2004 second quarter assessments. (Id.) The letter detailed a past due assessment related to the purchase of hurricane shutters. (Id.) Durr's letter indicated that Pacitti owed the Association $7,285.09 plus interest for the cost of the hurricane shutters. (Id.) Durr informed Pacitti that if the hurricane shutter assessments and regular assessments were not received by June 1, 2004, the Association would proceed to place a lien against Pacitti's condominium. (Id.) Pacitti does not dispute that as of the date of that letter he owed the amounts as set forth in Durr's May 5, 2004 letter. (Pacitti Dep. at 118-119.)

By letter dated May 27, 2004, Durr informed Pacitti that because he had not paid either his second quarter assessment, which was nearly 60 days past due, or his hurricane shutter assessment, the Association would pursue a lien against Pacitti's condominium. (Pacitti Dep. Ex. 64.) Pacitti does not dispute that he owed the assessments as outlined in the May 27, 2004 letter. (Pacitti Dep. at 120.) On August 10, 2004, the Association placed a lien against Pacitti's condominium in the amount of $7,421.37. (Pacitti Dep. Ex. 72.) The lien was filed in Monroe County, Florida. (Id.) On August 26, 2004, the counsel for the Association forwarded a copy of the lien to Pacitti. (Id.)

On August 24, 2004 Durr wrote a memorandum to Seapointe owners updating them on various items of interest related to Seapointe. (Pacitti Dep. at 130.) At the end of the memorandum, Durr advised the owners that: "[w]e are not long on funds because Pacitti has still not paid for shutters or his third quarter assessment." (Pacitti Dep. at 130.) Pacitti admits that as of the date of that letter he had not paid for the shutters and did not dispute that his third quarter assessment was delinquent. (Pacitti Dep. at 130.)

Durr wrote Pacitti a letter dated June 21, 2004. (Compl. Ex. D.) The letter was copied to Egan, Leneack and the counsel for the Association. The June 21, 2004 letter advised Pacitti that shutters will be installed on all windows and collection will proceed in connection with the installation, as each owner would be assessed for the costs of the installation. Durr's letter also requested that Pacitti pay his delinquent second quarter assessments. The letter informed Pacitti that his delinquency in paying assessments forces other owners to advance assessments to assist Seapointe with cash flow shortages. Finally, the letter requested Pacitti to cease renting his unit and advise either the board or Jerry Dieguez ("Diguez"), Seapointe's building manager, of any guests.

On September 18, 2004, Durr wrote a memorandum to Seapointe owners again updating them on various items of interest. (Pacitti Dep. at 132-34.) In this memorandum, Durr wrote:

Financially, we are holding our own, even though one of owners now owes more than $10,000 in assessments. This shortfall was covered by the board paying entire year's assessments in the second quarter and a couple of other good sports sent in two checks in the second quarter. However, unless this money is collected soon, another payment by someone will be necessary. Liens have been placed and foreclosure will take place in due course with the legal fees that are adding up. (Pacitti Dep. at 134.) Pacitti does not dispute that he owed more than $10,000 in assessments at the time of the writing of the September 18, 2004 memorandum. (Pacitti Dep. at 134.)

Pacitti's Condominium Renovations

During the fall of 2004, the Association learned that Cinquegrana's company was remodeling Pacitti's condominium. (Pacitti Dep. Ex. 77.) By letter dated October 21, 2004, Durr requested that Pacitti direct Cinquegrana to provide the board of directors with a plan related to the "Scope of Work" to be completed. Durr informed Pacitti that Cinquegrana's company was free to begin work prior to submitting the plan, but requested that the plan be forwarded to the board of directors for approval. Durr's letter also requested that Pacitti pay his past due assessment fees so that other owners would not have to pay extra amounts in an effort to conduct condominium association business. Finally, the letter reminded Pacitti that his 2004 fourth quarter assessments were past due and requested that Pacitti pay those amounts. (Id.)

On November 29, 2004, Durr wrote Cinquegrana a letter relating to the work Cinquegrana was performing on Pacitti's condominium. (Pacitti Dep. Ex. 80.) The letter informed Cinquegrana that the board of directors had become aware that Cinquegrana was hired to do work that was more extensive than originally anticipated. (Id.) Durr's letter provided in pertinent part:

This letter will confirm our conversation with you this A.M., regarding the remodeling of Unit 203 at Seapointe.

First, it is vital that Joe Pacitti write to the Board requesting permission to remodel and outline his intentions with drawings for any complicated work. Normally, we can do this verbally when the work consists of redoing existing rooms, etc. However, we know from the sketch you gave Pat Egan on Saturday, November 27, that Joe intends to add a fourth bath and squeeze in another den/sleeping room. Under these conditions, a letter outlining the reasons for such extensive changes is required.

Second, I verbally gave you permission, pending receipt of Joe's letter, to move forward with the construction on the kitchen and existing bathrooms, as the Board has no reason to be concerned about these changes, as many other owners have done it the past two or three years.

Third, however, I specifically withheld permission for you to do anything involving the construction, plumbing, rewiring, etc., of any new rooms and specifically a new bathroom. We also insist that any work on the additional den/sleeping room be curtailed. If any work progresses in these areas, our attorney will file an injunction.

The Board understands that, although Mr. Pacitti did not request approval from the Board in a timely manner, you and your crew need to make a living, so we have allowed the remodeling of the old kitchen and baths.

The contents of this letter outlines the essence of our conversation, and we expect you to comply fully with this directive. (Pacitti Dep. Ex. 80.) The counsel for the Association also wrote a letter to Pacitti addressing the renovations to his condominium. The counsel's letter provided:

I have been advised that you are altering the interior of your unit without approval of the Association. Article XVIII, Section 18.01, states that no residential unit owner may make any structural modifications or alterations to a unit or to its water, gas, electrical, mechanical, plumbing or air conditioning equipment or utilities without the consent of the Association. As I understand it, you are attempting to add a bathroom and a separate room, which may be another bedroom or a den. The Association has not consented and will not consent to such an alteration. Your failure to obtain approval in advance and any effort to complete the work will be met with appropriately legal action. (Pacitti Dep. Ex. 81 at 1)

During the time that Cinquegrana was performing work on Pacitti's unit, Durr and Egan went to Pacitti's unit to speak with Cinquegrana. Cinquegrana indicated the Durr came to Pacitti's unit and walked around. (Cinquegrana Dep. at 44.) Durr and Egan confronted Cinquegrana about performing the unapproved work. Durr again advised Cinquegrana that if the work continued the board would pursue an injunction. (Id.) Cinquegrana did not indicate that he thought there was anything unusual about Durr seeking him out in Pacitti's unit. (Id. at 45.) Cinquegrana never asked Durr to leave Pacitti's unit. (Id.)

In a memorandum requesting a December 3, 2004 special emergency meeting, Durr informed the owners of Seapointe about a conversation that he previously had with Cinquegrana and updated owners on the status of Pacitti's renovation dispute. (Compl. Ex. D.) The board of directors attempted to contact Cinquegrana and stop him from performing unapproved work on Pacitti's unit. (Cinquegrana Dep. at 41.) Durr indicated that he had prohibited Cinquegrana from performing certain work on Pacitti's unit until Pacitti obtained board approval for the renovations. Durr informed Cinquegrana that if Cinquegrana continued to work beyond the conditional approval granted by the board of directors, the board would file for an injunction. Cinquegrana told Durr to get the injunction right away. (Id.) Cinquegrana explained that he had a contract with Pacitti to perform certain work. Cinquegrana would need an injunction to excuse him from performing his contract with Pacitti. (Id. at 41-42, 44.)

In a letter dated February 4, 2005, Durr, Egan and Luneack, on behalf of the Seapointe board of directors, wrote to Pacitti and Cinquegrana. (Compl. Ex. D.) The February 4, 2005 letter related to complaints the board had received relating to renovations of Pacitti's unit. The letter generally addressed the cleanliness of bathrooms, surrounding areas and dumpsters used by Cinquegrana's employees. The letter also ...

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