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James Chizmar and Marianne Chizmar v. Borough of Trafford

March 29, 2011


The opinion of the court was delivered by: McVerry, J.


Pending now before the Court is DEFENDANT CRAIG ALEXANDER'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 53), with Defendants' joint undisputed statement of material facts and appendix (Doc. No. 58) and brief in support (Doc. No. 55); MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS BOROUGH OF TRAFFORD, FRANK BRUNO, AND BRIAN LINDBLOOM (Doc. No. 56), with brief in support (Doc. No. 57); PLAINTIFF'S RESPONSIVE CONCISE STATEMENT IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Doc. No. 62); and PLAINTIFFS' BRIEF IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 63) with appendix (Doc. No. 64). In reply to Plaintiffs' responsive statement of material facts, Defendants filed a response in opposition (Doc. No. 66), a reply brief to Plaintiffs' responsive statement, and a supplemental appendix (Doc. No. 68). The motions have been fully briefed and are ripe for disposition. After a careful consideration of the motions, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the motions for summary judgment will be granted.

Procedural Background

On February 13, 2009, Plaintiffs James Chizmar and Marianne Chizmar commenced this action by filing a five count complaint alleging multiple counts of intentional retaliatory conduct by Defendants: the Borough of Trafford ("Trafford" or "the Borough"), Kevin Karazsia (Mayor of Trafford)*fn1 , Frank Bruno (Trafford councilman), Brian Lindbloom (Trafford Code Enforcement Officer), and Craig Alexander (solicitor of Trafford). Counts I, II, and IV allege violations of rights guaranteed by the United States Constitution, brought pursuant to 42 U.S.C. § 1983. Count I is captioned "Retaliation - 42 U.S.C. § 1983" and alleges numerous acts of unlawful retaliation in response to Plaintiffs exercise of the their rights protected by the First Amendment. More specifically, Plaintiffs allege that they suffered from retaliation after exercising their rights to raise "safety concerns and circulate petitions over the Bradford Square and Coventry Court developments" see Doc. No. 1 at ¶ 44, in that:

Defendants [Borough of Trafford, Bruno, and Lindbloom] attempted to deter Plaintiffs from exercising their First Amendment Rights by:

a. Directing that the hazardous diesel tank and offensive portable toilet be placed at the edge of their property;

b. Issuing a meritless citation for violation of Section 136-3(F) and fining Plaintiffs $8,400.00, without probable cause;

c. Filing an Equity Action without factual support or probable cause;

d. Continuing the Equity Action for months after it was proved that Plaintiffs were not discharging foul or offensive liquid;

e. Directing Trafford police to investigate Plaintiffs for meritless claims that they had pulled out property stakes; and

f. Citing Plaintiff James Chizmar for disorderly conduct without probable cause.

Doc. No. 1 at ¶ 45.

Counts II and IV are both captioned "Retaliatory Prosecution - 42 U.S.C. § 1983." Count II is brought against the Borough and Defendants Bruno, Lindbloom, and Alexander, and refers to the complaint in equity filed by Defendant Borough against Plaintiffs in the Court of Common Pleas of Westmoreland County, Pennsylvania, on September 17, 2007,*fn2 whereas Count IV is directed to the criminal disorderly conduct citation/summons issued by the Trafford police against Plaintiff husband in August, 2008.

Counts III and V are brought pursuant to Pennsylvania law under supplemental jurisdiction. In Count III of the Complaint, Plaintiffs allege that Defendant Craig Alexander conspired with the other defendants to engage in the wrongful use of civil proceedings with the filing of a complaint in equity against Plaintiffs in Westmoreland County. Defendant Alexander, as solicitor of Trafford, prepared, verified, and filed the September 17, 2007 equity complaint.

Factual background

This action revolves around the development of an area of land within the Borough of Trafford, and the resulting disharmony produced as a result of Plaintiffs' opposition to the development project. In February 2007, Trafford approved a residential subdivision and land development plan for two vacant parcels of land, one parcel to be developed as "Coventry Court" and one parcel to be developed as "Bradford Square". Generally speaking, the Coventry Court project is a large tract of land on which a number of homes was to be built. A portion of the Coventry Court site is behind and immediately adjacent to Plaintiffs' property. An unimproved road extends through the Coventry Court parcel, and was situated directly behind Plaintiffs' property.*fn3 The developer, Makenzie Land Partnership LP, owned the Coventry Court parcel, and commenced the construction of residential housing and a road in 2007.

Plaintiffs first became aware of the development at the end of April/beginning of May in 2007, when , in their words, the bulldozers arrived and began working. From that date, a number of occurrences followed that involved Plaintiffs' various interactions with Defendants, the developer, law enforcement officials, and others that formed the factual background upon which Plaintiffs bring their claims. The Court will describe the events in seriatim.

A. Placement of diesel tank and portable toilet close to Plaintiffs' property

The earliest interaction involved the placement of a diesel fuel tank and a portable toilet near the edge of Plaintiff's property. Plaintiffs were initially unaware that the property adjacent to theirs had been approved for development. Once the work on the site commenced in April, a diesel fuel tank and a portable toilet were moved onto the construction site by the developer and placed close to, but not on, Plaintiffs' property, in plain view of the Plaintiffs' backyard. On April 29, 2007, personnel from the Trafford Volunteer Fire Department reported to the construction site to investigate a report that the diesel tank was leaking.*fn4 Despite making someeffort to stop the leak, including borrowing a pipe wrench from Plaintiff James Chizmar ("Plaintiff husband"), the leak was not entirely abated on that day. On April 30, 2007, the following day, Plaintiff Marianne Chizmar ("Plaintiff wife") left a voice mail message for Defendant Lindbloom. On May 1, 2007, Defendant Lindbloom telephoned Plaintiff wife in response to her voice mail message. In speaking with Defendant Lindbloom, Plaintiff wife complained about the placement of the portable toilet and the diesel fuel tank. She explained that the portable toilet was in plain view of her backyard. Plaintiffs' backyard contained a swimming pool and a volleyball net, and was used by Plaintiffs throughout the summer for outdoor entertaining. According to Plaintiff wife, she was informed that Defendant Lindbloom doubted anything could be done about it.*fn5 A couple of days later, the diesel tank and portable toilet were removed from the construction site. After several months, the diesel tank and portable toilet were apparently returned to the construction site in or around July, 2007. According to Plaintiffs, the two items were returned to the same location close to the edge of Plaintiffs' property. After the items were returned, Plaintiffs did not notice if any additional leaking occurred from the diesel tank. Further, at no time did Plaintiffs complain about any leakage or odors emanating from the portable toilet, either before it was moved or after it was returned. As the property owner, the developer of the construction site was, at all times, responsible for the location placement for the diesel tank and portable toilet.

B. Trafford police investigation into the removal of engineering stakes

That summer, the Trafford police department investigated a complaint regarding the removal of engineering stakes that had been driven into the ground on the construction site. The following investigative summary is included in a Trafford Police Department incident report dated July 23, 2007:

07/23/2007 07:00 ... [Officer] was met at the station by the [complainant] C/V who stated that they are continuing to have problems out at the construction site off of Hillcrest. The C/V stated they are now having problems with the engineering stakes being pulled out. The stakes are located on the right away [sic] right behind 148 7th Street Ext. According to the C/V, on Saturday July 21st workers at the site saw a male, who lives at 148 7th Street, pull the stakes from the ground. The C/V stated it costs him $100.00 dollars each time a stake is pulled. The C/V also adivsed that they are doing there [sic] best with working with the residents in the area and would like for this not to go any further because he doesn't want to cause any problems. However, he stated if these things continue they may want to look into pressing charges. I advised I would speak to the residents at 148 7th Street Ext and advise. ...

Supplemental 07/23/2007 18:25 ... [Officer] spoke to Mr. And Mrs. Chizmar at 148 Seventh Street Ext. Pertaining to stakes being removed from the property line that was set in place by the construction co. owner. ... Mrs. Chizmar declined that they had any involvement in removing the 'No Trespassing' stakes. I spoke with Mr. Jim Chizmar on the phone whom stated, that the 'no trespassing' signs [are] on public easman [sic] is a violation. Both were advised that this is a civil problem that they will have to deal with through the Borough and not the construction co. ...

Doc. No. 54 at exhibit K. The above referenced "C/V" or complainant was Bo Chatfield, the site manager for the Coventry Court project, and an employee of the developer.

The following day, a two page letter sent by Plaintiff husband captioned "Trafford Borough Planning Commission Request for information and Appeal to Revoke Development Approvals" was received by the Borough. On July 27, 2007, Plaintiff husband followed his previously mailed letter with an electronic mail message to Defendant Alexander noting that "a written request (i.e., for all development information and to schedule a Public Hearing, per letter dated 7/20/2007) was sent to the Borough on 7/24/2007" and he had yet to receive a response. See Doc. No. 54 at exhibit J.

C. Drainage from Plaintiffs' property onto the developer's property

The discovery of a water drainage condition from Plaintiffs' property followed shortly thereafter. By way of background, the expert report filed by Plaintiffs in opposition to Defendants' motions for summary judgment included, in relevant part, the following history of the drainage system emanating from Plaintiffs' house:

The Chizmars purchased the house with the Chizmar property in 1986. At the time the Chizmars purchased the Chizmar property, rain water from the roof of the house was collected in pipes and directed underground towards the rear of the Chizmar property where it was discharged and allowed to drain across the property line to the land which is now the Coventry Court Parcel. Mr. Chizmar has testified that he dug up what was apparently the original terra cotta pipe drainage system and replaced it with plastic drainage pipe. The original terra cotta drainage system directed rain water from the gutters and downspouts of the house to the rear of the Chizmar property. The current plastic drainage system serves the same purpose as the original terra cotta system.

Doc. No. 64 at exhibit B.

On or about August 2, 2007, and in the course of excavating the site in the area behind Plaintiffs' property for an area that was to become a public street to be called Coventry Lane Drive, a section of PVC pipe was uncovered by construction workers. Defendant Lindbloom was contacted by an employee of the developer and visited the site. Upon examination of the uncovered pipe, Defendant Lindbloom determined that it originated from the downspouts connected to the rain gutters on Plaintiffs' house, and that it was discharging a liquid into the ground. Defendant Lindbloom became concerned that the discharge could cause damage, erosion, and sinkholes in or around Coventry Lane Drive. He contacted the Trafford Borough Engineer to examine the area and to provide his opinion about any possible effect the water runoff would have on the adjacent property. The Trafford Borough Engineer examined the area on August 2 and 3, 2007, and concluded, inter alia, that if the condition were allowed to continue, the road would suffer a premature demise because the presence of the diverted water from Plaintiffs' property would prevent a proper foundation for the road from becoming firm and would cause collapse. Defendant Lindbloom received authorization from two Trafford Borough council members, Defendant Bruno and Casey Shoub (not a party to this action), for the engineer to contact Plaintiffs regarding the liquid discharge, which he did on August 3, 2007. The engineer wrote two identical letters, one to each Plaintiff, which:

(a) Notified Plaintiffs of the discharge of liquid from the rear of their property onto the area that will become a Trafford street/public property (Coventry Lane Drive);

(b) informed them that the discharge resulted in an adverse impact affecting the street, given the fact that the liquid prevents the subbase to solidify;

(c) indicated that the discharge violates the International Property Code, section 507, which had been adopted by the Borough of Trafford*fn6 ;

(d) ordered Plaintiffs to remove the pipe within ten (10) days, as it was detrimental to maintaining a safe and sound street;

(e) informed Plaintiffs that if they felt grieved by the order to remove the pipe, they could petition the Trafford Council on August 7, 2007.

Also on August 3, 2007, Defendant Lindbloom posted the property with a "Notice of Borough Ordinance Violation", which indicated that Plaintiffs were in violation of Nuisance Section 136- 3, citing the water drainage. Chapter 136 of the Borough code addresses nuisances, which are explicitly defined in Section 136-2 as "Any activity, conduct or condition which causes injury, damages, hurt, inconvenience, annoyance or discomfort to the public or such part of the public as necessarily comes into contact with such activity, conduct or condition and which adversely affects the same's safety, health, morals or general welfare, including aesthetics." Section 136-3 prohibits nuisances within the Borough, and states:

... Nuisances shall include, but are not limited to the following:

F. The draining, or allowing to drain, by natural or artificial means, any foul or offensive liquid of any kind, from any premises into, upon or along any other premises, public right of way, or public lands, except where provision has been made for the lawful drainage of such liquid in such manner and at such place. The existence of such drainage prior to the passage of this chapter, shall not make such activity or condition lawful.

Section 136-4 further requires Defendant Lindbloom, as the Code Enforcement Officer, with the duty to notify the owner of the property of the nuisance condition and set forth any corrective action required, upon the reasonable belief that a nuisance exists. In this case, Plaintiffs were notified that if the drainage condition was not remedied within ten days, they would face fines of $100 per day. At some point shortly thereafter, Plaintiff husband responded to the engineer by letter, objecting to the legal authority of the engineer to issue the order noted in the two letters, and that he "will be happy to discuss these issues as well as many other code violations by the Borough at this Tuesday's (i.e. August 7, 2007) council meeting and if necessary at the Westmoreland County Court of Common Pleas."

At the August 7, 2007, Trafford Council meeting, Plaintiff husband provided council with a petition of twelve (12) paragraphs, and a second document entitled "Objections to Coventry Court Subdivision". Further, during that meeting, Plaintiff husband spoke for over twelve (12) minutes, and Plaintiff wife also spoke, about the development. However, Plaintiff husband did not raise any issue regarding the water drainage issue and the letter from the Borough engineer.

At the monthly public meeting conducted on September 4, 2007, Defendant Lindbloom provided an update to the council regarding the issue of the water draining from Plaintiffs' property, informing the council that several requests had been made to Plaintiffs regarding the issue to no avail, and that construction of the road cannot continue until the situation is resolved. Both Plaintiffs spoke at the meeting, yet neither voiced any comment about the water drainage. Their comments concerned the re-zoning of the Coventry Court development site from permanent preserve to residential, a topic that was raised and addressed separately at the same meeting.

In a letter to Plaintiffs dated September 5, 2007, Defendant Lindbloom reminded them of the seriousness of their continued failure to correct the drainage problem, alerting them of the accumulation of penalties in the form of fines until the situation is corrected, and noting the availability of the Borough Council, the Borough Code Enforcement Department, and the Borough engineer as possible sources of assistance available to Plaintiffs. On September 17, 2007, Defendant Alexander, on behalf of Defendant Borough, filed a complaint in equity against Plaintiff husband and wife in the Court of Common Pleas of Westmoreland County, seeking injunctive relief to abate the water run-off. On that same day, Defendant Alexander sent an electronic mail message to Plaintiff husband, attaching a copy of the complaint in equity, and further advising that the Borough would waive the pending fines and satisfy the equity action immediately if Plaintiffs corrected the water run-off condition.

Plaintiff husband responded to the September 5, 2007 Lindbloom letter with his own correspondence sent on September 19, 2007 (two days after the filing of the complaint in equity), informing Defendant Lindbloom that the pipe in question was disconnected on August 5, 2007. On September 26, 2007, Defendant Lindbloom responded with a letter informing Plaintiff husband that he had re-examined the property and found that the condition causing the water runoff remained.

On or around September 27, 2007, Defendants Lindbloom and Alexander met with counsel for the Chizmars in the equity action, a different counsel than counsel for the matter sub judice, to discuss a number of solutions for the drainage problem. This meeting was followed with a letter from Defendant Lindbloom to Plaintiffs on October 1, 2007 that suggested four alternative proposals to correct the drainage problem. In a letter dated October 4, 2007, counsel for Plaintiffs confirmed an agreement he had reached with the Borough in which the Borough would not take any further action against Plaintiffs, and would hold in abeyance the citations issued to Plaintiffs, pending possible amicable resolution of the matter.

On November 5, 2007, Defendant Lindbloom issued a non-traffic citation to Plaintiffs for the ordinance violation. Magisterial District Judge Helen M. Kistler conducted a hearing on January 14, 2008, and found in favor of Plaintiffs.

During this same period, counsel for the Chizmars filed preliminary objections on November 29, 2007. Plaintiffs objected to the legal sufficiency of the complaint in equity in the form of a demurrer, contending, inter alia, that the rain water discharged through the PVC pipe drainage system was not a "foul or offensive liquid" as referenced in section 136-3(F) of the Borough Code.

On December 7, 2007, Defendant Borough filed a motion for preliminary injunction in the equity action, seeking to enjoin the continuing violation of the liquid discharge from Plaintiffs' property. On February 8, 2008, Defendant Borough filed a motion for postponement of the equity action, and informed the court, inter alia, that the parties had agreed to perform a dye test on Plaintiffs' property, and that "if the dye test showed no leaching of water from the Chizmar property onto the street behind, this would likely resolve the matter and cause a withdrawal of the action." On February 27, 2008, Common Pleas Judge Gary P. Caruso granted the motion to postpone the equity action and rescheduled the argument on the Chizmars' preliminary objections to April 30, 2008.

On April 7, 2008, a dye test was performed on Plaintiffs' property, in which a powered dye was placed in the water collectors on the side of Plaintiffs' house, then flushed with approximately five gallons of water. Apparently, not enough water was used to complete the test. After a period of rain had occurred in the area, on April 11, 2008, Defendant Lindbloom returned to Plaintiffs' property and was able to photograph the dye emanating from Plaintiffs' property onto Coventry Lane Drive. In a letter dated April 28, 2008, the Borough engineer informed the Borough council of his findings and opinion regarding the results of dye test. Specifically, the letter noted the following:

It is my professional opinion that both locations [from Plaintiffs' property] which currently discharge water run-off adversely impact the newly constructed street as follows: Water is seeping under and into the clay road base which produces a weak and spongy clay that is not allowed to solidify. As a result of this condition a premature demise of the pavement due to impact loadings from vehicles will occur. During the winter season this trapped water will accelerate the deterioration by freezing and expansion, which will allow the upward forces to disintegrate the flexible pavement.

In addition, the water that collects on the surface presents a dangerous condition on the road ...

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