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Charles V. Deninno, and Charles V. Deninno, Tdba v. Howard Davidson

April 26, 2012

CHARLES V. DENINNO, AND CHARLES V. DENINNO, TDBA, PLAINTIFFS,
v.
HOWARD DAVIDSON, AND THE TOWNSHIP OF PENN HILLS,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

[ECF No. 45]

OPINION

KELLY, Magistrate Judge

On February 26, 2010, Plaintiff Charles V. Dennino ("DeNinno"), a landowner, commenced this action under 42 U.S.C. § 1983 alleging that Defendants Howard Davidson ("Davidson") and the Township of Penn Hills ("Penn Hills") violated his First Amendment right to free speech as well as his right to substantive due process under the Fourteenth Amendment to the United States Constitution. The violations are alleged to arise out of a long-standing denial of an occupancy permit to a parcel of land located within Penn Hills. Defendants have filed a Motion for Summary Judgment [ECF No. 45] and for the reasons that follow, the Motion will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Litigation Between the Parties

The dispute between the parties over DeNinno's use of his land dates back to 1999 and has been the subject of prior litigation in both federal and Pennsylvania state courts. As summarized by the United States Court of Appeals for the Third Circuit:

In October 1999, Penn Hills approved DeNinno's site plan for an industrial park and issued a grading permit. The grading permit was revoked some three years later when Appellee Howard Davidson -- who was Director of the Penn Hills Planning Department -- determined that DeNinno was developing the property in a manner inconsistent with the site plan. DeNinno continued grading the property, however, and was cited for doing so without a permit.

After losing his grading permit, DeNinno submitted several additional site plan applications to the Penn Hills Planning Commission (Commission). Each application was denied for various reasons and Davidson advised DeNinno in writing of the remedial action required to obtain approval.

DeNinno v. Municipality of Penn Hills, 269 Fed. Appx. 153, 155 (3d Cir. 2008). The site plan dispute was litigated concurrently with a neighbor's border dispute over ownership of an abandoned railroad right of way adjacent to both lots. See Dellach v. DeNinno, 862 A.2d 117 (Pa. Super. 2004). This dispute was resolved unfavorably to DeNinno in Pennsylvania state courts and evidently engendered further ill will between DeNinno and Davidson, who at one point, was asked by local police to determine whether DeNinno had improperly placed concrete blocks on his neighbor's parking lot based upon his understanding of the property borderline. DeNinno v. Municipality of Penn Hills, 269 Fed. Appx. at 155.

Pursuant to an Order entered by the Court of Common Pleas of Allegheny County, DeNinno's site plan was to be approved by the Penn Hills Planning Commission at some point in 2005, subject to ten agreed upon preconditions. Id. at 156. DeNinno was only able to satisfy two of the conditions, and litigation over a grading permit followed. "In late 2005, the Court of Common Pleas of Allegheny County entered an order requiring DeNinno to submit a site map bearing a surveyor's seal to the Commission and ordering Penn Hills to reinstate his grading permit as long as he produced the map and complied with the ten conditions specified. Although DeNinno complied with only two of the ten conditions, he filed a thirty-one count federal complaint," alleging claims under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, including claims for the violation of his procedural due process rights. Id. at 155-156. The Court of Appeals affirmed the entry of summary judgment in favor of all Defendants, finding the majority of DeNinno's claims were not yet ripe. Id. at 158.

B. Current Dispute

Subsequent to the prior federal litigation, DeNinno apparently abandoned his original site plan for developing the property and ceased all grading activity. DeNinno used the land to store equipment for his demolition business and to store and sell aggregate stone pursuant to a mercantile license issued by the Penn Hills School District.*fn1 In 2006 through 2007, Penn Hills adopted the position that DeNinno's occupancy of the land was contingent on the 2005 site plan, which required grading after the filing of appropriate survey. [ECF No. 52-7, p. 12]. Thus, in the absence of an appropriate survey, a grading permit could not be issued and the land could not be occupied. Id.

DeNinno's sale of aggregate on his property required employment of a backhoe to move the aggregate as it was delivered and sold. Penn Hills' employees and Davidson, under the impression that the backhoe was actually being operated to grade the property without the requisite permit, began issuing multiple citations for ordinance violations and denied DeNinno an occupancy permit for the use of his land. The issuance of citations eventually led to the filing of a "private criminal complaint" by Davidson on behalf of the municipality against DeNinno. [ECF No. 52-7, pp. 4-6]. DeNinno's statutory appeal of the resulting convictions was heard in the Court of Common Pleas of Allegheny County, Pennsylvania in August, 2007. DeNinno was unsuccessful at the trial court level, but contends the record unequivocally demonstrated that he was not grading his property and that he was not in violation of any municipal ordinance. Accordingly, DeNinno began the appeal process in the Pennsylvania Superior Court.

In addition to the citations for grading, DeNinno was separately and repeatedly cited by Davidson for the use of a trailer on the premises, as well as a port-o-john. [ECF No. 52-6, pp. 13- 18]. DeNinno was under the impression that both uses were agreed upon during an attempted settlement of claims, but beginning in early 2007, he received multiple citations for these nonconforming uses of his land. Finally, on December 17, 2007, Defendant Penn Hills and DeNinno entered into a settlement agreement (the "2007 Settlement Agreement") to resolve all underlying land use disputes. [ECF No. 52-3 pp. 6-13].

According to the terms of the 2007 Settlement Agreement, DeNinno was to discontinue his appeal to the Pennsylvania Superior Court, remove a fence and the trailer, plant some vegetation and make a $5,000 donation to Penn Hills, an amount roughly equal to the outstanding fines for ordinance violations. [ECF. No. 52-3, pp. 6-13, 14]. DeNinno satisfied all conditions which were not weather dependent or contingent upon resolution of the pre-existing property line dispute. [ECF No. 52-2, pp. 13-22].

The 2007 Settlement Agreement also required Penn Hills to grant DeNinno an occupancy permit to use his land as a stockyard and to discontinue and settle all outstanding citations. Penn Hills' performance of the Agreement was contingent only upon the DeNinno's performance of those conditions unrelated to the weather and prior property line dispute. [ECF No. 52-2, p. 8].

In the months (and years) following the execution of the 2007 Settlement Agreement, however, Penn Hills failed to issue the occupancy permit and also failed to withdraw and discontinue all citations which had previously been issued against DeNinno for ordinance violations. [ECF No. 52-2, pp. 25-32, 52-3, pp. 18-24, ECF No. 52-1, pp. 4, 7].

It is undisputed that on March 6, 2008, DeNinno received notification from the Clerk of Courts for Allegheny County certifying his indebtedness in the amount of $5,053.00, representing the sum owed for the citations issued by Defendants for Plaintiff's alleged ordinance violations. [ECF No. 52-3, pp.14-17]. Defendants belatedly dismissed the majority of these citations in November 12, 2008, almost 11 months after the 2007 Settlement Agreement was executed. [ECF No. 52-3, p. 18]. Unbeknownst to DeNinno, Penn Hills did not dismiss all of the citations as required. A number of the citations subject to the 2007 Settlement Agreement apparently remained outstanding and in early 2011, DeNinno received notice of a hearing before the Penn Hills municipal magistrate and a Notice of Impending Bench Warrant for his arrest. After retaining counsel and preparing for the hearing, DeNinno was belatedly informed that the outstanding citations were withdrawn. [ECF No. 52-1, pp. 2-7].

DeNinno alleges that Defendant Davidson used his position and authority to override the 2007 Settlement Agreement and intentionally and wrongfully withhold the issuance of an occupancy permit, delaying issuance until this Court's intervention in January 2012. It is undisputed that in the months and years following the execution of the 2007 Settlement Agreement, DeNinno sought the issuance of the agreed upon occupancy permit but Defendants never complied. [ECF No. 52-1, pp. 12-17].

Defendants have filed a Motion for Summary Judgment [ECF No.45], contending that DeNinno's claims are barred by the applicable statute of limitations as no actionable conduct occurred within two years preceding the filing of DeNinno's Complaint on February 26, 2010. [ECF No. 45]. Defendants further contend that the facts adduced through discovery are insufficient as a matter of law to present a jury question for the alleged violation of DeNinno's rights under the First and Fourteenth Amendments to the United States Constitution. Defendants rely upon qualified immunity and Penn Hills' asserted lack of direct involvement in the alleged deprivation of DeNinno's rights as defenses to this action. Finally, Defendants contend that the doctrine of abstention applies to preclude this Court's involvement in what it characterizes as a state court proceeding.

DeNinno has filed a Brief in Opposition to Defendants' Motion for Summary Judgment and supporting exhibits. [ECF Nos. 51, 52, 53]. The Motion is now ripe for review.

II. STANDARD OF REVIEW

Summary judgment is warranted only where Athe pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party=s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See Conoshenti v. Public Service Electric & Gas Company, 364 F.3d 135, 140 (3d Cir. 2004). When the moving party has met this burden, the burden then shifts to the nonmoving party to Aset forth specific facts showing that there is a genuine issue for trial.@ Fed. R. Civ. P. 56(e) (2). The mere existence of some evidence favoring the non-moving party, however, will not defeat the motion. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005). In evaluating the evidence at the summary judgment stage, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Matreale v. New Jersey Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007).

III. DISCUSSION

A. Motion to Dismiss per Twombly and Iqbal

Citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), Defendants contend that the Complaint fails to state a cause of action upon which relief can be granted because "there are no facts set forth to support any allegation of any actions taken between February 26, 2008 and February 26, 2010, which would bring the claim within the applicable statute of limitations." [ECF No 46, p.6]. As more fully set forth herein, DeNinno has sufficiently alleged conduct within the applicable statute of limitations supporting his First ...


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