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Pipitone v. Camp Dresser and McKee

United States District Court, E.D. Pennsylvania

May 1, 2017

LYNARE PIPITONE and NATHAN PIPITONE, Plaintiffs,
v.
CAMP, DRESSER AND MCKEE, also known as CDM Smith, Inc., Defendant.

         Defendant CDM Smith's Motion for Summary Judgment, ECF No. 19 - Granted

          OPINION

          JOSEPH F. LEESON, JR. United States District Judge

         I. Introduction

         Plaintiffs Lynare and Nathan Pipitone are developers who planned to construct a residential unit in Pequea Township, Lancaster County, Pennsylvania. They sought to obtain sewer service for their development from the Suburban Lancaster Sewer Authority (“the Authority”), a municipal authority that provides sewage collection and conveyance services for customers in Pequea Township and nearby areas. The Pipitones, filing suit under 42 U.S.C. § 1983, allege that the Authority's consulting engineering firm, Defendant Camp, Dresser and McKee, Inc., also known as CDM Smith, interfered with their ability to obtain sewer service from the Authority by imposing on the Pipitones unnecessary and costly requirements that delayed their development plans for eight years, in violation of the Pipitones' constitutional rights.

         CDM Smith moves for summary judgment on the Pipitones' claims. Because the Court finds that the Pipitones have failed to present evidence from which a reasonable jury could conclude that CDM Smith, a private corporation, acted under color of state law or that CDM Smith had a “policy or custom” that caused the alleged constitutional violations, the Court grants CDM Smith's motion.

         II. Factual Background

         A. The Suburban Lancaster Sewer Authority and CDM Smith

         The Authority provides sewage collection and conveyance services for its customers in the municipalities of Pequea Township, West Lampeter Township, and portions of Lancaster Township, in Lancaster County. The Authority, which was incorporated as a municipal authority in June 1970, is comprised of a five-member board.[1] The Authority does not have its own standalone offices, nor does it have any employees or staff. Def.'s Facts ¶¶ 2-3, ECF No. 19. CDM Smith, which first entered into a consulting agreement with the Authority in 1989, is the Authority's only engineering consultant and conducts numerous day-to-day tasks for the Authority. Among other things, CDM Smith reviews sewer capacity requests, performs the Authority's billing, answers customer complaints, reviews the Authority's annual operating budget, drafts all of the Authority's regulations, and, in the case of the Pipitones, drafts developers' agreements. Def.'s Facts ¶¶ 4-8; Pls.' Facts ¶ 32, ECF No. 25. In addition, representatives from CDM Smith attend all meetings of the Authority, which are typically held at CDM Smith's offices. Def.'s Facts ¶¶ 4-5; Pls.' Facts ¶ 32. For each monthly Authority meeting, CDM Smith prepares an engineer's report that is incorporated into the meeting minutes; Frank Mincarelli, the solicitor for the Authority, records the meeting minutes. Def.'s Facts ¶ 9.[2]

         B. The Summerfield development proposal

         In February 2007, the Pipitones requested from the Authority sufficient sewer capacity for a proposed residential development called the Summerfield Development (“Summerfield”), consisting of 148 residential units, in Pequea Township. Def.'s Facts ¶¶ 1, 12. In March 2007, CDM Smith submitted to the Authority a review of the Authority's conveyance capacity for Summerfield, which included an evaluation of the suitability of using the existing Marticville Pump Station (“MPS”) for the development's sewer services. Def.'s Facts ¶ 15. CDM Smith concluded that the MPS did not have sufficient available capacity to accommodate the increased flows from Summerfield, and it proposed a number of alternatives to using the MPS, including the construction of a new pumping station. Def.'s Facts ¶ 15.

         At the March 22, 2007 Authority board meeting, CDM Smith stated, among other things, that although the MPS could be expanded to accommodate additional sewage flows from Summerfield, the MPS's current site was too small and could not be expanded or upgraded to comply with current Authority specifications. Def.'s Facts ¶ 16; Pls.' Facts ¶ 5. At the April 26, 2007 Authority board meeting, CDM Smith recommended, among other things, that a new pumping station be located on the Summerfield property, with construction costs being allocated between the Pipitones and the Authority. Def.'s Facts ¶ 18; Pls.' Facts ¶ 6. CDM Smith proposed that it would be responsible for all engineering and inspections for the new pump station, the construction of which would cost the Pipitones significantly more than upgrading the existing station. Pls.' Facts ¶ 7.

         On May 7, 2007, CDM Smith provided the Authority and the Pipitones with: (1) a preliminary plan for the new pumping station to accommodate the sewage flows from Summerfield; (2) an opinion of the probable project total cost of $1.26 million; and (3) a potential cost sharing arrangement between the Pipitones and the Authority. Def.'s Facts ¶ 19. That same day, the Pipitones' engineer, Lake Roeder Hillard and Associates (“Lake Roeder”), provided the Authority and CDM Smith with several alternative proposals for upgrading the MPS at its existing site, rather than constructing a new pumping station on the Summerfield property. Def.'s Facts ¶ 20.

         After reviewing Lake Roeder's proposals to upgrade the MPS at its existing location, CDM Smith informed Nathan Pipitone that it disagreed with a number of the basic engineering assumptions used by Lake Roeder. CDM Smith further stated that any upgrade of the MPS must meet current Authority standards, which in CDM Smith's opinion could not be met by upgrading the MPS at its existing location. Def.'s Facts ¶ 21.

         According to the minutes at the May 24, 2007 Authority board meeting, Mr. Pipitone, along with a representative from Lake Roeder, were present to discuss the possible upgrade of the MPS as an alternative to the construction of a new pumping station. Def.'s Mot. Ex. 18, ECF No. 19-4. Board member George Rutter informed Mr. Pipitone that the board would review and discuss his proposals for an upgraded station and get back to him. Id.

         According to the minutes at the July 26, 2007 Authority board meeting, Russell MacNair, a consulting engineer for CDM Smith, stated that Mr. Pipitone's proposal for upgrading the existing station was inadequate in light of standards set by the Authority and by the Pennsylvania Department of Environmental Protection (“DEP”). Def.'s Mot. Ex. 20, ECF No. 19-4. A motion was made by board member Donald G. Beck, seconded by board member Richard Nissley, to authorize CDM Smith to inform Mr. Pipitone that the Authority could not approve his proposal to merely upgrade the pump at the MPS, and to explain the Authority's requirements for newly built and upgraded pumping stations. The motion carried unanimously. Id.

         According to the minutes at the August 23, 2007 Authority board meeting, Mr. Pipitone discussed several alternatives for upgrading the MPS. Def.'s Mot. Ex. 23, ECF No. 19-4. The board “indicated that it may consider evaluating one of the proposed alternatives.” Id.

         According to the minutes at the September 27, 2007 Authority board meeting, the Authority informed Mr. Pipitone that his proposal to upgrade the MPS needed to be investigated further and that DEP approval of the concept was needed. Def.'s Mot. Ex. 24, ECF No. 19-4. The meeting minutes further show that “CDM [would] look at the design criteria that it feels are necessary for a pump station enhancement and then discuss the entire matter with DEP to see what design criteria it will require.” Id.

         On November 29, 2007, Mr. Pipitone, his engineer, CDM Smith, and DEP convened a meeting to discuss Mr. Pipitone's proposed upgrade of the MPS at its existing site. Def.'s Facts ¶ 30.

         At the December 20, 2007 Authority board meeting, the Authority directed CDM Smith to provide cost estimates to Mr. Pipitone for his proposed upgrade to the MPS at its existing site. Def.'s Facts ¶ 32. On January 8, 2008, CDM Smith sent a proposal to Mr. Pipitone outlining the cost to upgrade the MPS at its current site pursuant to his engineer's design. The projected total cost was $411, 353, to be shared proportionately between Mr. Pipitone and the Authority. Def.'s Facts ¶ 33.

         According to the minutes at the February 28, 2008 Authority board meeting, Mr. Pipitone discussed upgrading the MPS. Def.'s Mot. Ex. 31, ECF No. 19-5. Mr. Pipitone stated that he was being required to upgrade the station beyond his needs and that he wanted to construct the improvements himself, rather than have the Authority perform the work. Id. The board discussed Mr. Pipitone's statements ...


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