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Galena v. Leone

March 5, 2010


The opinion of the court was delivered by: Sean J. McLAUGHLIN United States District Judge


McLAUGHLIN, SEAN J., District J.

Plaintiff Daniel T. Galena commenced this action under 42 U.S.C. § 1983,*fn1 claiming that his rights under the First Amendment were infringed when the Defendant Fiore Leone, then Chairman of the Erie County Council, ejected him from a public meeting of the Council held on March 20, 2007. Following trial, the jury returned a verdict in favor of the Plaintiff in the amount of $5,000.00. Presently pending before the Court is the Defendant's motion for judgment as a matter of law. For the reasons that follow, the Defendant's motion will be granted.


Rule 50(a)(1) of the Federal Rules of Civil Procedure authorizes the entry of judgment as a matter of law according to the following standard:

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1). A motion for relief under Rule 50(a) may be made at any time before the case is submitted to the jury. Fed. R. Civ. P. 50(a)(2). Where, as here, the court does not grant the motion, "the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(b). Such a motion may be renewed within 28 days following entry of judgment. Here, judgment [65] was entered in favor of the Plaintiff on August 4, 2009. Defendant filed a timely renewed motion for judgment as a matter of law [74] on August 13, 2009.

In deciding the Defendant's Rule 50 motion, the Court must view the evidence in the light most favorable to the prevailing, non-moving party -- to wit, the Plaintiff, giving him the benefit of every fair and reasonable inference. Toledo Mack Sales & Service, Inc. v. Mack Trucks, Inc., 530 F.3d 204, 209 (3d Cir. 2008). Generally, a Rule 50 motion should be granted only if the evidence is not sufficient for a jury reasonably to find liability. Brown v. Daniels, 290 Fed. Appx. 467, 470, 2008 WL 3890380 at **2 (3d Cir. Aug. 22, 2008) (citing Lightening Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993) and Fed.R.Civ.P. 50(a)). See also Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993) (A Rule 50(a) motion should only be granted if, viewing all the evidence in the light most favorable to the party opposing the motion, no jury could decide in that party's favor).


Galena is a resident of Erie County, Pennsylvania. In early-to-mid 2006 he began attending meetings of the Erie County Council out of an interest in observing how public tax dollars were being spent. (N.T. 3-4, 23.)*fn2 County Council meetings were held every two weeks on Tuesday evenings. (N.T. 23.) Galena was one of a group of three or four individuals who regularly attended Council meetings. (N.T. 5.) Though he did not make every one, he averaged at least one per month and spoke on about 14 or 15 occasions, addressing a variety of subjects. (N.T. 23-24, 26.) He primarily spoke about the tax and spending policies of county government. (N.T. 5.)

Typically, Galena would begin his presentations by providing his name and address on the request of Council, after which he would turn to the audience and greet them by stating, "[G]ood evening taxpayers." He would then usually turn to Council and "pan the seven members ... with [his] arm," and say, "[G]ood evening tax spenders," emphasizing the "spender portion." (N.T. 6.) This would "more than likely" induce Defendant Leone, who was Chairman of the Council, to "grimace and scowl." (N.T. 6.) During his comments to Council, certain members were "almost indifferent," while "maybe two or three others would be listening intently." (N.T. 6-7.) According to Galena, Leone would "more often than not... grin, and almost laugh" at what he (Galena) was saying. (N.T. 7.) Galena testified that, when other people would speak publically, Leone did not seem to laugh or grin at them in the same way. (Id.)

This lawsuit arose from events which occurred during a meeting of the Erie County Council held on March 20, 2007. The general order of business for that and every Council meeting, as set forth in Article V, Section 6.B of the Erie County Administrative Code, was as follows:

1. Pledge of Allegiance

2. Optional Prayer or Invocation

3. Roll Call

4. Hearing of the Public

5. Approval of the Minutes of Previous Meetings

6. Reports of County Officials, Committees, or Special Advisory Groups

7. Unfinished Business

8. New Business

9. Adjournment

(N.T. 7-8, 15, 81-83, Pl.'s Ex. 1, p. 164.)

Members of the public were permitted to comment on any subject they wished to address during the "Hearing of the Public" portion of the meeting. (N.T. 4, 80-81, 94.) A speaker who provided advance written notice of his desire to speak was allotted five minutes to address Council; those who provided no advance written notice were allotted three minutes. (N.T. 81, Pl.'s Ex. 1, at §§ 8.A and 8.B, p. 166.) Members of the public were not permitted to speak in any portion of County Council meetings other than the "Hearing of the Public" portion. (N.T. 15, 42-43, 69, 81-83, 92; Pl.'s Ex. 1, [68] at §§ 6.B, 8.A and 8.B.)*fn3 The adoption of ordinances was commonly taken up by the Council as "New Business" during the latter portion of the meeting. (N.T. 15, 59, 83.)

On the evening in question, to wit, March 20, 2007, four citizens addressed Council during the Hearing of the Public portion of the meeting. The minutes of the meeting reflect the following occurrences:

Gil Rocco, ... approached Council to speak regarding the Smoking Ban. He noted that [the] Council solicitor [had] stated this ban was not legal, but Council went forward despite that opinion. He appreciated Mr. Leone's appearance at the court hearing, and believes the county was trounced at that hearing, and there are no grounds for appeal. Mr. Rocco feels there is a flawed decision making process going on, and Council cannot break the law simply because they think they know better or have a better idea. He also asks where the silent majority is; they do not show up to speak. He cannot find anyone in favor of this ban.

Renee Vendetti, Erie, stated that over one year ago, she asked Mr. Mitchell for the indicated status to be pushed so it was out of Pennsylvania. Nothing has been done. She asked why the County is paying $60,000 a year for lobbyists when Mr. DiVecchio and Mr. Wiley go to Washington, DC and Harrisburg to lobby for money. This is a waste of taxpayer money. The smoking ban was an improper motion according to Roberts Rules of Order. There are no specifics regarding the minutes in the Home Rule Charter, so Roberts Rules must be followed, and the minutes should be verbatim.

Kenneth Francis Simon Przepierski ... stated that Mr. Rocco does not realize that the whole smoking ban was dredged up to be a big smoke screen so that Council can fly through agendas bumping first readings to second readings. He referred to Ordinance 31 on the agenda regarding the creation of gaming fund budget bureaus, and asked who would be on all these bureaus. The monopoly of properties that went through tax exoneration at the last meeting was a lot of money just exonerated. He also asked about the expenses at Pleasant Ridge Manor, and feels the budget should be trimmed.

Maria Foster, ... stated this Council's agenda has been to break the law. Council continues to allow the Office of Children and Youth to violate the law even though this agency is under Council's and the County Executive's jurisdiction. She referred to the administration's trip to Washington, DC as a pleasure trip. Council violates Constitutional rights, the Pennsylvania Constitution, the Administrative Code, and Roberts Rules of Order. Politicians have forgotten many things, except when it comes to getting an extra perk, a business ally, or maybe a little cash in their pocket. She stated Council does not take the people before them seriously. Council can be held accountable when violating the law. She warned Council to stop breaking the law.

(Pl.'s Ex. 4 [71] at p. 2.)

Following the Hearing of the Public, the Council took up approval of the minutes from its prior meeting and received a number of reports from various committees and council members. Thereafter, Leone, as Chairman of County Council, addressed the attending public. The minutes from the March 20, 2007 meeting describe his comments as follows:

Mr. Leone then addressed Ms. Vendetti, Ms. Foster and Mr. Przepierski. Mr. Leone keeps hearing that Council breaks the law. He cautioned these individuals to be careful when they tell Council they want to be taken seriously, because Council should be taken seriously as well. It seems that no matter what, some people cannot be pleased. He recalled a story his father told him -- if you pass out ten dollar bills, people will complain that they're not twenties, and he feels his father was probably right. This seems to be the situation here; no matter what Council does, it just isn't enough. People think Council Members should be available 24 hours a day, doing everything they possibly can. Although he probably puts in more time than other members, it is because Mr. Leone has the time. He reminded the audience that this is a part-time job. Council Members are ...

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