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Luciani v. City of Philadelphia

United States District Court, Third Circuit

October 1, 2013




Now before me is a motion for summary judgment by defendants the City of Philadelphia and Dennis R. Curcio and Robert Foglia, Co-Administrators of the Estate of Enrico Foglia, Deceased. For the reasons that follow, I will grant defendants’ motion.


Plaintiff James Luciani’s claims in this action arise out of his alleged wrongful suspension and termination from the City’s Board of Revision of Taxes for his alleged violation of the City’s residency rule after he informed the City Controller’s office about allegedly corrupt practices in the BRT. From 1985 until 2008, plaintiff was employed by the City of Philadelphia. Compl. ¶ 20. He worked for the BRT from 1989 until 2008 and at the time of the events giving rise to this action was a Real Property Evaluator. Compl. ¶¶ 21-22. In that capacity, plaintiff was charged with the responsibility of assigning a dollar value to large commercial properties in Center City Philadelphia including office buildings and similar structures for real estate tax purposes. Compl. ¶ 22. The BRT’s valuations formed the basis for property tax assessments. Compl. ¶ 12. From 1991 until September 2009, Enrico Foglia was the Executive Director of the BRT. Compl. ¶ 9; Ans. ¶ 9. The BRT also had a board whose responsibilities included hearing and issuing decisions on property owners’ appeals of their properties’ assessed values. Compl. ¶ 13; Ans. ¶ 13.

II. Plaintiff’s September 2007 Meeting with the City Controller’s Office

In September, 2007, around Labor Day, plaintiff met with Philip Bridgeman and his supervisor, William Rempfer, of the Controller’s office in connection with a City audit of the BRT’s valuation of certain properties. Dkt. No. 39 at ¶ 5; Dkt. No. 42 at ¶¶ 41, 43; Bridgeman Dep. at 4-5, 7-10, 12-17. The Controller’s office and the BRT were independent City departments. Dkt. No. 42 at ¶ 42; Davey Dep. at 53-56 (explaining that the staff in the Controller’s office “were accountants, ” not appraisers).

Bridgeman testified that Plaintiff initiated the meeting, claiming that he “[h]ad something to tell” the Controller. Dkt. No. 42 at ¶ 43; Bridgeman Dep. at 12-13, 42-43. At the meeting, plaintiff answered questions about the BRT’s decisions to reduce the valuations of certain properties for which he was responsible. Dkt. No. 39 at ¶ 6. Plaintiff claims that at the meeting he “provided Bridgeman and Rempfer with facts and information which revealed and exposed a pervasive pattern of corruption in the BRT that was detrimental to the taxpayers of the City.” Dkt. No. 42 at ¶ 45. Responding to questions at the meeting, plaintiff stated that the former Chairman of the BRT, David Glancey, had followed a practice of unilaterally entering into settlement agreements with property owners and/or their attorneys that substantially lowered property valuations. Dkt. No. 39 at ¶ 7; Bridgman Dep. at 12:8-17:14, 20:9-21:8. Plaintiff reported that two lawyers who were active in Democratic Party politics were involved in most of the private meetings resulting in large valuation reductions. Dkt. No. 42 at ¶ 45(c); Luciani Dep. I (Sept. 7, 2011) at 68-73, 77-82, 85-87.

Plaintiff contends that in October 2007, after his meeting with Bridgeman and Rempfer, Bridgeman and Rempfer scheduled a meeting with Charlesretta Meade, then the Chairperson of the BRT Board and certain BRT managers, including Eugene Davey, Robert Zambrano and Barry Mescolotto[1] to discuss, inter alia, plaintiff’s statements at his meeting with the Controller’s office. Dkt. No. 42 at ¶ 47; Zambrano Dep. at 74-77, Bridgeman Dep. at 21-24. Zambrano testified that at the meeting, Meade expressed concern that plaintiff had made comments about Glancey to Bridgeman.” Zambrano Dep. at 75:2-18 (“I’m starting to remember the meeting, that it concerned some of the deals that Dave Glancey made and that [plaintiff] probably shouldn’t have brought him into it since he was going or gone at the time and . . . [Meade expressed the view that plaintiff p]robably shouldn’t have brought that up. . . .”). Bridgeman testified that when plaintiff’s criticism of Glancey came up at the October meeting, Meade and the other BRT employees “of course, denied it. Then, they wanted to know who the evaluator was.” Bridgeman Dep. at 23:5-14. Bridgeman declined to identify plaintiff at the meeting, but testified that it was apparent from the discussion that it was plaintiff who had provided information about Glancey’s alleged practices to the Controller’s office. Id. at 23:13-22. Bridgeman testified that Meade and the other BRT employees expressed annoyance at the allegation against Glancey, saying “it didn’t happen that way; they didn’t have knowledge of it, let’s put it that way.” Id. at 23:23-24:7.

Plaintiff testified that after the meeting between the Controller and BRT management, Davey told him that Meade was “livid” because plaintiff had “spoke[n] out against the department” and had “besmirched the good name of Dave Glancey.” Luciani Dep. I at 89-90, 92-93; Luciani Dep. II (Oct. 24, 2011) at 73-75. Zambrano testified that Davey told him that plaintiff would have a problem with Meade because she was upset that he had mentioned Glancey to the Controller. Zambrano Dep. at 133:2-24. Plaintiff has not, however, submitted any testimony from Davey about these conversations.

II. Plaintiff’s Residence and the Residency Requirement

As a Civil Service employee, plaintiff was required to maintain his bona fide residence in the City. Compl. ¶ 38, Ans. ¶ 38; Phila. Civil Serv. Reg. § 30.01.[2] Plaintiff contends that while he was employed by the City, he always maintained a bona fide residence in the City. Luciani Dep. I at 4-5, 11-12, 15-16, 64-66; Ex. F (Pl.’s Ans. to Interrog. No. 9).

Plaintiff contends that from 1986 to 1994, he lived in the City on Clearfield Street. Dkt. No. 42 at ¶ 24. He testified that in 1994, he moved to 6642 Roosevelt Boulevard in Philadelphia. Luciani Dep. I at 12:16-23. He asserts that from late 2003 or early 2004, until he was terminated in July, 2008, he “maintained his residence at 2336 East Cumberland Street in Philadelphia.” Dkt. No. 42 at ¶ 24, citing Luciani Dep. I at 4-5, 11-13, 64-65, and Ex. F. He contends that he owned and rented out the Cumberland Street property prior to 2004, moving in when his tenants vacated the property in late 2003. Dkt. No. 42 at ¶ 25. Plaintiff asserts that he moved in and hired contractors to do major renovation work because the tenants left the Cumberland Street property “in a deplorable condition.” He claims that the renovation work “lasted several years” and that “[a]lthough [he] was able to stay and sleep in his Cumberland Street Residence most of the time when the renovations were being performed, there were occasions when he decided to sleep at other locations within the City (including his mother’s home on Bustleton Avenue and his aunt’s house).” Dkt. No. 42 at ¶ 25, citing Luciani Dep. I at 4-5, 12-17; Luciani Dep. II at 27, 30, 65; Ex. G (Pl.’s Ans. To Interrog. No. 9). Plaintiff asserts that between 2004 and 2007, while he resided at the Cumberland Street property, “he used his mother’s address on Bustleton Avenue in Philadelphia as his mailing address after discovering that contractors working at his Cumberland Street Residence had thrown out or lost some of his mail.” Dkt. No. 42 at ¶ 32, citing Luciani Dep. I at 119-123.

To support his contention that he resided in Philadelphia during the time in question, plaintiff points to a voter registration card issued by the City in December, 2003. Dkt. No. 42 at ¶ 26, citing Hoover Dep. at 63-64, Mescolotto Dep. at 77-78 and Ex. H. Plaintiff testified that as of 2008, he had voted in the City for at least 20 consecutive years. Dkt. No. 42 at ¶ 28; Luciani Dep. II at 87-88. Plaintiff also cites his driver’s license issued by the Commonwealth of Pennsylvania in January 2005 listing the Cumberland Street property as his address. Dkt. No. 42 at ¶ 27; Hoover Dep. at 62-63; Mescolotto Dep. at 77-78; Ex. I. Plaintiff notes that when he lived on Roosevelt Boulevard he had a telephone number with a Philadelphia area code and a listing in the Philadelphia White Pages phone directory. Dkt. No. 42 at ¶ 29; Luciani Dep. I at 64-65. He testified that when he lived at the Cumberland Street property beginning in 2004, he also had a telephone number with a Philadelphia area code. Dkt. No. 42 at ¶ 29; Luciani Dep. I at 64-66. He did not, however, have a land line, at the Cumberland Street address, and the Philadelphia area code he cites during that time period was associated with a cell phone. Luciani Dep. I at 64:3-11 (“When I moved back in, in ’04, I just used the cell phone.”).

Plaintiff contends that his BRT “supervisors and co-workers were well aware that he was living in the City.” Dkt. No. 42 at ¶ 30, citing Luciani Dep. I at 43-46; Zambrano Dep. at 30, 46-47, 56-60 (testimony that he believed that Luciani lived in Philadelphia); Davey Dep. at 52-53 (testifying that he “never thought that [plaintiff] didn’t live in the city”). Plaintiff also testified that Foglia had visited him once at Cumberland Street. Luciani Dep. I at 45. Plaintiff further asserts that while he was employed by the BRT, the City performed annual residency checks for all Civil Service employees. Dkt. No. 42 at ¶ 31. He submits testimony from Mescolotto that he “never showed up on any of those checks” as being a nonresident, Mescolotto Dep. at 32:3-4, and Zambrano’s testimony that plaintiff “was always okay” when his residency status was checked. Zambrano Dep. at 46:16-17.

Plaintiff and his wife, Autumn Luciani, separated in 1992, but never divorced. Dkt. No. 42 at ¶¶ 34-35; Luciani Dep. I at 10-12, 18-20. After their separation, Autumn moved into 1028 Tatum Street, Woodbury, New Jersey. Dkt. No. 42 at ¶ 36; Luciani Dep. I at 10, 18-20. In a written separation agreement dated December 1992, plaintiff and Autumn agreed, inter alia, that:

[i]t is understood and agreed that Husband and Wife own as tenants by the entireties, the real estate known as 1028 Tatum Street, Woodbury, N.J. 08096. Said property was purchased on September 15, 1988 jointly by Husband and Wife for investment purposes. Husband agrees to allow wife to occup[y] property as her primary [residence] effective February 1, 1993. Wife agrees to be responsible for all utilities, taxes and mortgage payments. Wife agrees to hold harmless husband from any and all liability and/or claims and/or damages and/or expenses . . . that Wife may sustain, or for which she may become liable or answerable . . . with regard to said property for which Wife is liable under the terms of this Agreement. Husband agrees to allow [W]ife to reside in said property until such time it is mutually [agreed] upon to sell property.

Dkt. No. 42 at ¶ 38, citing Separation Agreement at ¶ 5. Plaintiff testified that Autumn has lived alone at the property since 1992. Luciani Dep. I at 20:2-5. He asserts that “they have not reconciled or lived together at any time since they separated 20 years ago.” Dkt. No. 42 at ¶¶ 34-35; see also Luciani Dep. I at 18-20, 184-85. Indeed, plaintiff’s co-worker testified that he saw plaintiff with different women at BRT-sponsored functions. Dkt. No. 42 at ¶ 40; Davey Dep. at 49-50.

Plaintiff contends, however, that in 2007, when he was having renovations done at the Cumberland Street property, Autumn allowed him to store boxes of his personal belongings at the Woodbury, New Jersey property. Dkt. No. 42 at ¶ 56, citing Luciani Dep. I at 129-130, 138. He testified that his stuff had been stored in Woodbury for “[o]ver a year, ” that he stayed at the house “[a] few times” while Autumn was away and that he had and has a key to the Woodbury house. Luciani Dep. I at 138:3-21. Plaintiff testified that he drove to the Woodbury property to pick up some of his boxes on September 20, 2007. Dkt. No. 42 at ¶ 57; citing Luciani Dep. I at 129-31. While he was at the house, he claims that Federal Bureau of Investigation Special Agents Brian Nichilo and Ray Manna knocked on the door. Dkt. No. 42 at ¶ 58, citing Luciani Dep. I at 129-130; Ex. L., Nichilo Dep. at 226-29. Plaintiff claims he invited the FBI agents into the house, where they questioned him, “spen[ding] about five-minutes on residency questions, and an hour-and-55 minutes asking [him] about corruption in [his] department.” Dkt. No. 39, Ex. C., Luciani Dep. I at 122:24-123:2.

Defendants contend that in or around October 2007[3], FBI Special Agent Nichilo told Thomas Steel of the City’s Office of the Inspector General that during an interview regarding another matter[4] plaintiff had admitted that he lived in Woodbury, New Jersey. Dkt. No. 39 at ¶ 10, citing Steel Dep. at 55:6-21, 241:12-243:6. Plaintiff, conversely, testified that he never admitted to Nichilo and Manna that he lived in Woodbury, saying instead that “[w]hen they asked [him] what [he] was doing there [he] answered their questions honestly and told them to look around at all the stuff that was laying around. And they really didn’t dwell too much on the residency. They were really interested in the corruption stuff.” Luciani Dep. I at 138:22-139:12.

In support of their contention that plaintiff violated the residency rule, defendants explain that on September 26, 2007, days after the FBI visit to the house in Woodbury, plaintiff notified the City of a change of address, identifying as his “new address, the Cumberland Street address. Steel Dep. at 246:7-247:11. Defendants aver that for a number of years before that date, plaintiff had listed a Bustleton Avenue address as his residence, but that he did not live there. Dkt. No. 39 at ¶ 12, citing Luciani Dep. I at 119:13-120:17. Instead, defendants claim that the Bustleton Avenue address was the retirement home where plaintiff’s mother lived. Dkt. No. 39 at ¶ 12, citing Luciani Dep. I at 119:13-120:17; see also Luciani Dep. I at 121:15-18 (“She had her own apartment, which wasn’t assisted living, it was just like an apartment in a retirement community, which had a sleep sofa if I wanted to stay there.”). Defendants also assert that from 2000 through 2007, plaintiff listed the Cumberland Street address as a “real estate interest” on annual financial disclosure forms required for public employees by the Commonwealth. Dkt. No. 39 at ¶ 13, citing Luciani Dep. II at 58:10-67:11. Plaintiff’s interview by the FBI took place on September 20, 2007, less than a week before plaintiff changed his address to the Cumberland Street address. Dkt. No. 39 at ¶ 18, citing Ex. E. Plaintiff testified that he changed his address in his City personnel record because during his September 20, 2007 interview with the FBI, the FBI agents threatened to get him fired for non-residency status. Dkt. No. 39 at ¶ 19, citing Luciani Dep. I at 122:11-123:2.

Defendants contend that after plaintiff reported his change of address, the OIG conducted an investigation into whether plaintiff lived at the Cumberland Street address or if he, in fact, lived in Woodbury, New Jersey. Dkt. No. 39 at ¶ 14, citing Steel Dep. at 301:24-304:22; 334:18-336:20, and Ex. E. Steel interviewed plaintiff about his residency on or about January 10, 2008 and again on or about March 12, 2008. See Dkt. No. 39, Ex. E.; Steel Dep. at 334:15-16. On or about February 4, 2008, the OIG sent a letter to plaintiff at the Woodbury, New Jersey Address informing him that “[a] recent inquiry determined that you may be in violation of the City’s residency regulations; and as such, you are now the subject of a residency investigation.” Dkt. 39, Ex. F. The letter asked him to provide certain documentation as proof of residency at a “Residency Verification Interview with the OIG. Id. Plaintiff testified that he provided the OIG with the requested documents. Luciani Dep. I at 108:6-14.

On June 6, 2008, the OIG issued a report detailing its investigation into plaintiff’s residency and concluding that plaintiff resided in Woodbury, New Jersey, not at Cumberland Street. Dkt. No. 39 at ¶ 17, citing Ex. E. The report described the documents plaintiff provided to prove his residency:

Driver’s License; State Farm Insurance bills for home insurance and car insurance; Water Revenue Bureau bill for the period November 13, 2007 to December 12, 2007; PECO bill dated December 19, 2007, Comcast Bill for December 2007; and a December 2007 Police and Fire Federal Credit Union Statement with attached 2007 Mortgage/Interest statement.

Dkt. No. 39, Ex. E. The report noted that “[a]ll of the aforementioned documents reflected Luciani’s name and address as 2336 E. Cumberland Street, Philadelphia, PA 19105.” Id. On June 9, 2008, the OIG sent a copy of the report to Foglia, advising him that the OIG “investigation confirmed that Luciani resided in Woodbury, N.J.” Id. Plaintiff was not copied on the June 9 letter. Id.

III. Plaintiff’s Residency Hearing, Suspension, Termination and Grievance

On June 18, 2008, the City sent plaintiff a letter formally charging him with violating the residency rule. Compl. Ex. B. The letter advised plaintiff that the charge was based on “information provided by the inspector General and the Federal Bureau of Investigation.” Compl. ¶ 39 and Compl. Ex. B. Specifically, it stated that “[a] recent investigation by the City’s Inspector General has concluded that you have been in violation of this requirement by establishing and maintaining your bona fide residence in Woodbury, New Jersey.” Compl. Ex. B. The letter told plaintiff that “based on the information provided . . . the [BRT] intend[ed] to suspend [him] for thirty calendar days and to dismiss [him] for alleged violation of the residency requirement, ” that a hearing had been scheduled for Monday June 30, 2008 and that, at the hearing he would “have an opportunity to answer the specific charges [identified in the letter] and to present witnesses on [his] behalf.” Compl. Ex. B. It also informed plaintiff that he had “the right to Union representation at the hearing.” Id. The letter was mailed to plaintiff at the Cumberland street address. Compl. Ex. B.

After receiving a copy of the June 18, 2008 letter, Judy Hoover, plaintiff’s union[5] representative, emailed Veronica Daniel, the Administrative Services Director for the BRT, asking for “specific reasons for the dismissal or demotion” and a summary of “the facts in support thereof with sufficient particularity to allow the employee to prepare a defense to the charges” and stating, inter alia, that she “would also like to know the specifics and have copies of any [OIG] reports and/or FBI reports so that we can properly prepare for this hearing.” Dkt. No. 42, Ex. U. Daniel responded with an email stating, in relevant part, that

[t]he charge against the employee is stated on the [June 18, 2008 Letter] (violation of residency requirement) and the facts are contained in the [OIG’s] report as indicated in the letter. As of now I have been advised to inform you that the [OIG’s] report is a confidential document that will be ...

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