Petition for Writ of Certiorari — Gross v. City of Pittsburgh

Supreme Court brief1997

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9'7%- 76 JUL 1 0 1997

No. \

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

TERM, 1997

SOL GROSS, Trustee of PANTHER HOLLOW

CORPORATION and PANTHER HOLLOW

CORPORATION,

Petitioner.

VS.

THE CITY OF PITTSBURGH,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

Maurice A. Nernberg

MAURICE A. NERNBERG

& ASSOCIATES

301 Smithfield Street

Pittsburgh, PA 15222

(412) 232-0334

Counsel of Record for

Petitioner

Questions Presented for Review

:. Did the Third Circuit err when it held that Sol

Gross was not entitled to nominal damages (or any damages) for

the violation of his civil rights by an arrest that was found to be

arbitrary and capricious?

4 Did the Third Circuit violate the 7th Amendment

when it substituted its conclusions for those of the jury as to

factual matters?

Parties to the Proceedings Below

The parties below are Sol Gross, an individual and Panther

Hollow Corporation, Plaintiffs; and, the City of Pittsburgh,

Defendant. Other parties originally listed in the complaint were

removed by summary judgment and order of court.

Table of Contents

Questions Presented for Review...............ccccccccccccceececccceccees. i

List of Parties to the Proceedings.................ccccccceeeceeeceeeee ii

Pgh kos cindsabSddssivabnegnevesaacnsacesooseasce Vv

Opinions Delivered in the Court Below...............ccecccccceeececes. 1

StatementofJurisdiction..................cccccccccceeesecsceeccccececccce. 2

Constitutional ProvisionsInvolved................00ccccccccceeeeccceeee. 3

SN 6

peice ods) Saislsuniccacunsceaneceuasaskdeceexeadeceexesees:; 28

Appendix:

A. Order of the United States Court of Appeals for

the Third Circuit entered on April 11, 1997 at

Nos. 96-3242 and 96-3267 denying a petition for

oa ditei crenata ke sacesusevsnccveswocades: la

B. Opinion of the United States Court of Appeals for

the Third Circuit filed on March 14, 1997 at Nos.

96-3242 and 96-3267, granting a new trial........ 3a

3d Judgment in a Civil Case entered in the United

States District Court for the Western District on

March 13, 1997 at Civil Action No. 91-1895...20a

Order of dismissal for mootness by the Honorable

James R. Kelly of the Commonwealth Court of

Pennsylvania entered on March 18, 1996 at No.

Le ee iiaicavupvevceseniaunsssavnaeatnaes 26a

Opinion and Order Sustaining Appeal from a

decision of the City of Pittsburgh Board of

Standards and Appeals by the Honorable Robert

C. Gallo of the Court of Common Pleas of

Allegheny County, Pennsylvania, Civil Division

entered on July 7, 1992 at No. SA 3428-90.....27a

Memorandum opinion by the Honorable Emil E.

Narick of the Commonwealth Court of

Pennsylvania entered on February 22, 1993 at No.

SER bkstintasspavesssindsanninoeioeaeens 36a

Order of the City of Pittsburgh Board of Standards

and Appeals, City of Pittsburgh, Pennsylvania

ated January 31, 1990 at Case #3 - 1990,

denying reinstatement of Panther Hollow

Corporation’s Land Operations Permit and

Temporary Certificate of Occupancy............. 42a

Petition for Rehearing filed in the United States

Court of Appeals for the Third Circuit at Nos. 96-

Fa E cewctnsdentciccididusinigsersariccnsd 444

Motion to Dismiss Appeal and for Sanctions filed

in the United States Court of Appeals for the

Third Circuit at Nos. 96-3242 and 96-3267.....61a

Appeal by City of Pittsburgh from Report of

Board of Viewers filed in the Court of Common

Pleas of Allegheny County, Pennsylvania at No.

Minutes of Meeting of 21 September 1989,

prepared by City of Pittsburgh, Department of

ROO as otsssinnincansoutpennecicucaan aie 8la

Letter to Sol Gross from Mary Fleming, Project

Chief of Bureau of Building Inspection, City of

Pittsburgh dated November 1, 1989.............. 84a

Letter to Sol Gross from Alex G. Sciulli,

Director, City of Pittsburgh dated November 1,

Letter to Sol Gross from Dominick Cimino,

Assistant Superintendent of Bureau of Building

Inspection, City of Pittsburgh dated November 9,

Siiiacéurcicccs secs ahteene ee Coe 87a

Table of Authorities

Carey v. Piphus, 435 U.S. 247 (1978)..........cccsesececeee 22

Farrar v. Cain, 756 F.2d 1148 (5th Cir. Ee 22

Home Insurance of N.Y. v. Tydol, Inc.,

ADEE RIO ID sstsosnstcrnignininncteisnescsscssusviacwens, 26

Lavender v. Kurn, 327 U.S. 645.........ccccccccsesececceeeee 26

Lewin v. Metropolitan Life Insurance

Company, 391 F.2d 608, reh.den. (3rd. Cir. ib ataticenscecs 25

Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500

CC .. TOG sin cncarcssnassectaatnenne 26

Morrison v. Stepanski, 839 F.Supp. 1130 (M.D.

Mutual Benefit & Accident Ass’n v. Bowman, 175

woe. Yo AB, . : een 26

Williamson County Regional Planning

Commission v. Hamilton, 473 U.S. 172

CPI sincosncosccccesexsnctnecivessiecsssusbasien 13

Yohannon v. Keene Corp., 924 F.2d 1255 (3rd

Oe, FOP cacasasscssterisseavetrccumecneen 23

Statutes:

BO SB 12s vcciis scnsssicorsesesscestamieneeees 2

ASU BC. © 16 Baiciisvcscccederssectcsicieceseeuns y me DS

RAP. Tb oodccscevesscecccasscsccsecssecnevakeuseee 15

PREP, U2 ii ciscecacccccessdcaccurconideve eee 13

RAC DU. oc cccnconccuscatcdenvceccaccntennneeeea ene 15

—— Tn |

Constitutional Provisions:

U.S. Constitution, 7th Amendment.............. 3, 23,25, a1

U.S. Constitution, 14th Amendment, Sections 1-5..........’ 3

Other Authorities:

ee 24, 25

Vil

Opinions Delivered in the Courts Below

The unpublished opinion of the Third Circuit Court of

Appeals filed March 14, 1997 at No. 96-3242 and 96-3267 was

not reported, but appears in the appendix (Appendix B, page 3a).

A Petition for Rehearing was denied by Order dated April

11, 1997, filed at 96-3242 and 96-3267, was not published, but

appears in the appendix (Appendix A, page 1a).

The opinion of the Honorable Robert C. Gallo dated July

7, 1992 at SA 3428-90 in the Court of Common Pleas of

Allegheny County, was not published, but appears in the appendix

(Appendix E, page 27a).

Statement of Jurisdiction

Petitioners seek review of the Order of the Third Circuit

Court of Appeals entered on April 11, 1997 (Appendix A, page

la), denying Petitioners’ Petition for Rehearing of the Opinion

dated March 14, 1997 (Appendix B, page 3a). The district court

verdicts were entered on February 26, 1996 as to liability

(Appendix C, page 24a) and March 12, 1996 as to damages

(Appendix C, page 21a). Judgment was entered on the verdicts on

March 13, 1996 (Appendix C, page 20a).

Federal jurisdiction was obtained under 42 U.S.C. § 1983.

This Honorable Court has jurisdiction to review the order by Writ

of Certiorari pursuant to 28 U.S.C. § 1254.

Constitutional Provisions Involved

7th Amendment to the Constitution of the United States.

In suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved,

and no fact tried by a jury shall be otherwise re-examined in any

Court of the United States, than according to the rules of common

law.

14th Amendment to the Constitution of the United

States.

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No state shall make or enforce any

law which shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

Section 2. Representatives — Power to reduce apportionment.

Representatives shall be apportioned among the several States

according to their respective numbers, counting the whole number

of persons in each State, excluding Indians not taxed. But when

the right to vote at any election for the choice of electors for

President and Vice-President of the United States, Representatives

in Congress, the Executive and Judicial officers of a State, or the

members of the Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of age, and

citizens of the United States, or in any way abridged, except for

participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion which the

number of such make citizens shall bear to the whole number of

male citizens twenty-one years of age in such State.

Section 3. Disqualification to hold office.

No person shall be a Senator or Representative in Congress, or

Elector of President and Vice-President, or hold any office, civil

or military, under the United States, or under any state, who,

having previously taken an oath, as a member of Congress, or as

an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, to

support the Constitution of the United States, shall have engaged

in insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

Section 4. Public debt not to be questioned — Debts of the

Confederacy and claims not to be paid.

The validity of the public debt of the United States, authorized by

law, including debts incurred for payment of pensions and bounties

for services in suppressing insurrection or rebellion, shall not be

questioned. But neither the United States nor any State shall

assume or pay any debt or obligation incurred in aid of

insurrection or rebellion against the United States, or any Claim for

the loss or emancipation of any slaves; but all such debts,

obligations, and claims shall be held illegal and void.

Section 5. Power to enforce amendment.

The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

42 U.S.C. § 1983. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of Columbia shall

be considered to be a statute of the District of Columbia.

(R.S. § 1979; Dec. 29, 1979, P. L. 96-170, § 1, 93 Stat. 1284.)

Statement of the Case

FACTS, PHC:

In early 1989 Panther Hollow Corporation (hereinafter

"PHC"), which was 50% owned by Sol Gross and his wife,

purchased a 27 acre tract, located near the University area, in the

City of Pittsburgh (hereinafter, “City") from the CSX Railroad for

a price in excess of $1,000,000. Prior to the sale, CSX had been

cited for the existing conditions on the property, years of

accumulated debris, tires, abandoned cars, asphalt piles.

After the sale, on behalf of CSX and under contract to

CSX, PHC remediated the conditions for which CSX had been

cited. It removed the tires, abandoned cars and other debris from

the site, and graded the asphalt piles as approved by the City, all

under the direction of the City Bureau of Building Inspection

(hereinafter "B)BI"). In order to perform its work, with permission

from the City Department of Public Works, (hereinafter "DPW")

PHC prepared an access road, which was necessary to gain

entrance to the site. No permit was required for the remediation

work.

Prior to the sale, the property was a common dump. A

street (Boundary Street) which ran through it had been closed due

to the accumulation of debris. There was no vehicular access to the

area and fire hydrants located on the site were inaccessible.

City records indicated that the CSX violations were abated

by PHC’s cleamup activities as of June 15, 1989, although PHC

was not informed and believed it was continuing the cleanup into

late July. However, in late July, PHC was informed that it should

obtain a Land Operations Permit to perform additional work it was

doing, leveling ("grading") the area.

During the work, prior to permit issuance, PHC had been

grading the area level with permission from DPW, raising the

elevation of the then impassable street (which, the City had no

plans to open amd whose opening the area residents opposed). In

fact, the grading was required. Initially, the BBI asked that large

piles of asphalt be removed, but agreed they could be graded into

the area. Unknown to DPW and BBI, the grading caused the burial

of a City water line (not shown on the centralized one call system).

In addition, during the work, a neighboring property was found to

be discharging raw sewage on the PHC property, which was

originally attributed to PHC’s work, but later found to be the

result of a septic system that was never connected. The sewage

leak was initially reported to the Allegheny County Health

Department ("ACHD") by Sol Gross.

On or about July 23, 1989, the City Director of the Water

Department insisted that the land operations work stop due to the

overburden on the water line. Although there is no city ordinance

governing such a request, PHC stopped its work pending

resolution of the problem.

On July 27, 1989, PHC applied for and obtained a City

Land Operations Permit which permitted PHC to perform

earthwork, not to involve more than 16,000 cubic feet of earth

movement. The work under the permit was to prepare the site for

a parking lot, a permitted use under the City zoning codes.

However, work did not resume at that time.

Residents living near the area opposed the use of the site

for a parking lot and complained to the City. Following the

issuance of the permit, they became especially active. The City

(City Planning Department) met with the residents on a number of

occasions. During those meetings, the City promised the residents

that a parking lot would not be constructed and that the residents

would have an opportunity to participate in the process of

determining the use to which the property could be put. However,

the property was zoned for and could be used as a parking lot

under the zoning ordinances. But, if more than 16,000 yards of

earth were moved, a "conditional use" hearing would be required.

A conditional use hearing is a public hearing and any conditional

use permit required City Council approval, a political process,

instead of the ordinary zoning process.

Following meetings with the residents, the City raised a

number of issues pertaining to the property. The City questioned

er ao Ak deer aed 99

whether the earth movement exceeded 16,000 yards. Both PHC

and City employed engineers indicated that less than 16,000 yards

of earth were moved.’ Additional issues were raised by the City,

such as a lack of a storm water control system, that the work of

PHC resulted in a landslide, an overburden on an electric company

transmission line, the burial of the City water line (and, with it,

access to City fire hydrants) and lack of a storm water plan.

In addition to the foregoing, the ACHD raised questions

concerning the work by PHC and insisted that the City sewer the

two lots from which raw sewage was leaking onto the PHC

property. PHC contended that the raw sewage was not the result

of its actions and, it was later determined that the septic systems

were never connected. The discharge had nothing to do with

PHC’s operations. In fact, it was likely that raw sewage had been

leaking for years, but the general debris in the area prevented its

discovery.

Between July 23, 1989 and September 21, 1989, the

project was shut down. No work was performed.

On September 21, 1989, PHC representatives, including

Sol Gross and his engineers, met with all of the affected

Department heads of the City of Pittsburgh to discuss all of the

outstanding matters (Appendix K, page 81a). At that meeting, all

but one of the outstanding matters were resolved. PHC’s engineers

presented data indicating that (1) not more than 16,000 cubic yards

of earth were moved; (2) landslides in the area were not caused by

PHC (in fact, they were caused by the illegal dumping of an

adjacent property owner who the City refused to cite, and PHC’s

work stabilized the hillside); and, (3) storm water was not a

problem (recent flooding came from a lake nearby and did not

result from PHC work). The minutes were prepared by

representatives of City Planning.

In fact, the City employed engineer was called by PHC as a

witness and testified at trial as to his calculations, that were less

than 16,000 cubic yards.

At the meeting PHC told the Directors that no more fill

was required for the site, even though it had a permit to do so, so

that that issue became moot. The meeting left one issue

unresolved. The Director of the Water Department insisted that

PHC either uncover the water line or install a new one at a higher

elevation (which would also raise the fire hydrants). Work,

consisting of grading, resumed on October 10, 1989, without

objection from the City.’

On October 10, 1989, the Director of the Water

Department wrote PHC confirming PHC’s agreement to raise the

water line.

On October 19 and 20, 1989, PHC applied for and was

granted a temporary occupancy certificate for use of the property

as a 565 car parking lot. It might be noted that at this time the

ACHD, who had jurisdiction over the sewage issue, required the

City to install City sewage to the homes with the defective septic

systems.

On October 26, 1989, PHC confirmed to the Director of

the Water Department that it would raise the water line in accord

with the discussion of September 21, 1989 and on November 1,

1989, the Director of the Water Department wrote to PHC, in

which he confirmed the agreement for raising the water line, that

PHC would submit plans by March 1, 1990 and begin construction

by June 1, 1990 (Appendix M, page 85a). Therefore, as of

November 1, 1989, all outstanding matters were resolved, pending

the plan submission scheduled for March 1, 1990.

Despite there being no ordinance which would permit the Water

Department to require PHC to install a new water line and

although PHC had been authorized to level the on site asphalt and

grade the area, it never objected to installing a new water line.

That issue never became part of PHC’s case, although the City

raised it as a basis for revocation.

Also, on November 1, 1989, PHC was received a letter

from BBI’ (Appendix L, page 84a) which added conditicas for use

of the property as a parking lot, over and above those set out in

the October 20, 1989 temporary occupancy permit. The additioral

items consisted of a fence around the lot, a permanent barrier

around the fire hydrant (which was below grade pending the

raising of the water line by PHC) and, if the lot was to be used at

night, lighting. PHC registered no objection.

During this period, the residents in the area became more

aggressive in their insistence that the property not be used for a

parking lot, and the City was in constant communication with those

residents.

On November 2, 1989, the Chief of BBI (Paul Imhoff) left

the City for a meeting of the American Building Officials. The

Assistant Chief, Dominick Cimino ("Cimino") became acting Chief

during the Chief’s absence.

On November 6, 1989, all of the affected City Department

heads met with representatives of the Mayor’s office. Cimino

attended for BBI. Although minutes of the meeting were

referenced, none were ever produced. During trial, each of the

attendees testified that at that meeting, there was a "consensus"

that the Land Operations Permit should be revoked. Each attendee

testified he or she could not remember any specific event that

transpired at the meeting.

On November 7, 1989, Cimino met with the organized

group of residents and with the Director and Deputy Director of

City Planning present, promised to shut the PHC project down.

On November 9, 1989, Cimino as acting Chief of BBI

personally delivered a letter to PHC at the site, in which PHC was

directed to discontinue all operations (Appendix N, page 87a).

Cimino was accompanied by uniformed police and informed those

present (PHC and its subcontractor) that if any work was initiated,

It is to be noted that the revocation of a building permit is

exclusively within the authority of BBI.

all would be arrested. Despite his statement, there was no

provision under the City ordinance to permit the arrest of one

performing work under a revoked permit. In fact, under the

ordinance, if the revocation was appealed, the revocation was to

have been suspended.

There was no evidence of any cataclysmic event occurring

between the September 21, 1989 meeting and the revocation letter,

nor was there any evidence of any event between the November 1,

1989 letters of approval and the revocation.

The letter of revocation listed six reasons for revocation:

e Excessive overburden on two City sewers

and a water line located within the fill area;

° [Fill] on a City water line, which makes

useless City fire hydrants in the area;

° An excessive overburden on a Duquesne Light

transmission line;

° Interfere[ence] with sewer systems of

adjoining owners;

e Fill in a manner that would cause

excessive drainage in the Panther Hollow-

Boundary Street area.

The letter also gave the following reason for revoking the

parking lot permit and certificate for temporary occupancy:

Review of your Certificate of Occupancy, as well

as the permit to operate a parking lot, indicates

that a large portion of the parking spaces are

located on Boundary Street. Accordingly, no

Aa aces pa nea abasis sth thon,

permit will be issued, separate and apart from the

land operations issue, until a new parking plan is

submitted showing the location of the spaces.

Lastly, the letter stated:

Presently, you have an access road at the lower

end of Boundary Street, which is illegal. You are

not to use this as an access until you receive a

curb cut from the Department of Public Works.

On December 1, 1989, the City installed jersey barriers

(large concrete highway dividers, moved by crane), to prevent all

access to the site, including that by the owners.

PROCEDURAL HISTORY - STATE COURT, PHC:

On December 8, 1989, PHC appealed the revocation of the

permit to the City Board of Standards and Appeals, who sustained

the revocation by a decision dated January 31, 1990 (Appendix G,

page 42a), that was not provided to PHC counsel until November

9, 1990. The sole grounds for sustaining the revocation was that

the documents submitted were insufficient, a reason not given for

revocation (this was not contained in the order, but in the hearing

transcript).

PHC filed an appeal to the Common Pleas Court of

Allegheny County, Pennsylvania ("Common Pleas") from the

decision of the Board of Standards and Appeals. The Common

Pleas Court, after a five day hearing, reinstated the permit by an

order dated July 7, 1992 (Appendix E, page 27a). Although the

City appealed the Common Pleas decision, it became final when

the City appeal was dismissed due to mootness, following the

taking of the property, as referenced hereafter (Appendix D, page

26a).

On December 20, 1989, PHC filed a Petition for

Appointment of a Board of View (the method by which one

initiates the process of inverse condemnation), in the Common

Pleas court (the “eminent domain" case). The petition alleged that

the City’s installation of jersey barriers to prevent access to the

property constituted an inverse condemnation.

In response, the City filed “Preliminary Objections"

* in which it denied that there was an inverse condemnation. The

eminent domain case lay dormant until March 8, 1996, when the

City withdrew its preliminary objections, which had the effect of

admitting that a taking occurred as well as the facts contained in

the petition.°

FEDERAL COURT, PHC:

On November 5, 1991, PHC and Sol Gross filed the

complaint in this case, alleging violations of their rights under 42

U.S.C. § 1983 (the "civil rights case"). The Defendants included

the City, individual actors employed by the City and residents of

the neighborhood. The individual defendants were removed by

summary judgment before trial. At trial, the issues tried were

twofold, (1) that the arrest of Sol Gross was a violation of his due

Preliminary Objections are the Pennsylvania equivalent of a

F.R.C.P. 12 (b) motion to dismiss. In inverse condemnation cases,

the objections are to sole means by which the municipality may

contest the factual basis of the condemnation.

Following the filing of the complaint in this case, the City raised

an issue of abstention, which the district denied in light of the

City’s objections to the Petition for Board of View, in which it

contended that the procedure was not applicable to the instant case.

The Third Circuit, sua sponte, questioned whether Williamson

County Regional Planning Commission v. Hamilton, 473 U.S. 172

(1985). However, the federal claim of PHC was a due process, not

a taking claim.

process (see below); and, (2) that the permit revocation, followed

by the blockade, was a violation of due process. No taking claim

was made.°

The civil rights case was bifurcated between liability and

damages and tried before a jury. The verdict was in favor of PHC

on the issue of liability. The jury then awarded PHC damages of

$565,824. On appeal, the Third Circuit reversed, holding that the

verdict was against the weight of the evidence (Appendix, page

13a).

However, before the verdict on damages, the matter took

a strange twist.

The jury reached a verdict on liability on February 26,

1996 (Appendix C, page 24a). After a delay of a week, testimony

resumed, on damages and was complete as of March 8, 1996. The

matter was scheduled to be submitted to the jury for verdict on

March 11, 1996.

On March 8, 1996, at approximately 4:00 P.M. (a Friday),

the City withdrew its preliminary objections to the eminent domain

case. The withdrawal of the preliminary objections had the effect

of admitting the taking claim in state court. When Court

reconvened on the 11th, for submission to the jury, counsel for the

City informed the Court of its action, which chagrined the Court.

The City then took the position that damages would be limited to

There was also a procedural due process claim that the hearing

before the Board of Standards and Appeals was violative of due

process, in that the basis for revocation set forth in the November

9, 1989 letter was not addressed by the Board. Rather, the decision

of Cimino was upheld on grounds never raised, that the PHC

application was insufficient. In addition, PHC complained because

the Board included Cimino as a member and he participated in the

decision of the Board to uphold his own decision as Acting Chief.

This issue, along with the jersey barrier blockade, was not tried.

The Court determined it would only try those issues if found

against PHC on the arbitrary revocation issue.

losses of 21 days, from November 9, 1989 (the date of revocation)

to December 1, 1990 (the date of the installation of the jersey

barriers). The Court was of the view that its jurisdiction could not

be ousted and the case went to the jury without modification of the

jury instructions. This was commented upon by the Third Circuit

(Appendix, page 18a), although the City, now that the verdict in

the District Court has been reversed, takes a different position as

seen by its appeal from the Board of View’s decision awarding

damages to PHC (Appendix J, page 79a). The City now posits that

the Board of View was in error in determining that PHC

relinquished possession on December 1, 1989, which has the effect

of disputing damages for the delay in payment (Appendix J, page

79a).’

After the City appealed the district court judgment, PHC

filed a Motion to Dismiss Appeal and for Sanctions (Appendix I,

page 6la) concerning the City’s actions. The gravamen of the

Motion, was that the admission by the City of the taking in the

eminent domain case was an acknowledgement of the facts

contained therein. That admission contradicted the City defense

and justified dismissal of the appeal. Moreover, the verdict could

not be against the weight of the evidence if the City acknowledged

the facts contained in the Petition for Appointment of Board of

View. Lastly, the actions of the City were violative of F.R.C.P.

11 and F.R.A.P. 38.

We call this to the Court’s attention, because the City has taken

different positions on different issues at different times. For

instance, it presented testimony in the instant case that the value of

the property was $2,000,000. Yet, in the state court proceedings,

it sought to disavow that position. The state court held the City

judicially estopped from disputing that value. Thus, when the City

believed it could limit damages in the federal proceeding to 21

days, it admitted the taking of the property. However, when the

Third Circuit reversed, the City no longer posits that the damages

are limited to 21 days.

ot i se

ye. ape tes:

At the close of the Plaintiffs’ case, the City moved for a

compulsory nonsuit. No motion was made following the close of

all evidence. Following trial, a motion for judgment as a matter of

law or a new trial was filed by the City (Sol Gross filed a motion

to amend the verdict).

FACTS, SOL GROSS:

On September 18, 1989, Sol Gross (co-owner of the stock

of PHC) was stopped and charged in a summary proceeding, with

performing work without a permit; although George Fisher, the

employee of BBI who cited Sol Gross was acting out of his

jurisdiction and had no information concerning whether a permit

had been issued. The BBI employee testified he was instructed by

the Chief of BBI to cite Sol Gross. The Chief of BBI had

personally issued the permit and was aware that a permit had been

issued. If the employee had looked in the file before issuing the

citation, he too would have been aware that a permit had been

issued. He acknowledged that he issued the citation only on

direction from the Chief. There was no contrary evidence.

As a consequence of the citation, Sol Gross had to post a

bond and attend a hearing before a District Magistrate. He was

found not guilty, upon proving that the permit was issued.

PROCEDURAL HISTORY, SOL GROSS:

Sol Gross joined in the § 1983 complaint, alleging his civil

rights were violated by the arrest and prosection. He testified that

he was anguished by the arrest and suffered emotional trauma. His

wife testified on the emotional distress issue. Other than the

testimony of the BBI employee, George Fisher, who admitted the

foregoing facts, there was no other testimony on this issue.

At trial, the jury found Sol Gross’ civil rights were

violated (Appendix C, page 24a). However, in the damages portion

of the trial, the jury awarded him no damages (Appendix C, page

21a). Immediately following the jury verdict, and before the jury

was discharged, his counsel approached the bench and requested

that the Court direct the jury to enter an award for nominal

damages, at the least. The District Court refused.

On appeal, the Third Circuit affirmed, suggesting that the

jury might have reached a "compromise verdict when it resolved

the liability issue in favor of Gross". In addition, the Court found

that the "issuance of a citation which was withdrawn--seems to us

to be so inconsequential that, ... the verdict was not flawed."

(Appendix B, page 17a)*

THE TRIAL

The trial consumed approximately 21 days of testimony.

The witnesses included Dominick Cimino, the Assistant Chief of

BBI; Paul Imhoff, the Chief of BBI; Daniel Feeney, the BBI

official who supervised the cleanup of the PHC property; George

Fisher, the BBI officer who arrested Sol Gross; Mary K. Conturo,

the then City Solicitor; Joseph Sabino Mistick, the then Executive

Secretary from the Mayor’s office, Fred Reginella; the Director of

Engineering; Alex Sciulli, the Director of the Water Department;

Jane Downing and Maureen A. Hogan, formerly Director and

Planner from the City Planning Department; Larry K. Stefl, a

representative of ACHD; Thomas F. Easton, the City employed

engineer; Sol Gross, from PHC; Anthony Berardi, the person in

charge of the on site land operations; various building inspection

officials; Dr. William Whittaker, an expert as to earth movement;

and Betty Murphy, the PHC employed engineer. There were a

number of other witnesses, both on liability and damages. Over

100 Exhibits were introduced.

The citation was not withdrawn. The BBI inspector who issued the

Citation did not appear at the hearing and Sol Gross presented

evidence that he had a permit.

As a consequence of the voluminous record, we do not

include all of the testimony and exhibits from the record. The

testimony will be summarized for each of the revocation reasons

listed in the letter of November 9, 1989 (Appendix N, page 87a),

which is what should have been before the district court and the

Third Circuit.

At the outset of the trial, a Motion in Limine was

presented, relative to the findings of Judge Gallo of the Common

Pleas Court, that such findings should preclude contrary evidence.

The trial court was somewhat equivocal in granting the motion,

holding the City could not argue facts already determined by the

Common Pleas Court, but did let the City argue those facts on the

ground that they were supportive of the City’s good faith belief

that PHC was guilty of the complaints listed in the revocation

letter. As to each of those items:

e Excessive overburden on two City sewers

and a water line located within the fill area.

This was resolved by an agreement, memorialized in the letter of

November 1, 1989, between PHC and the City, for the

replacement of the water line, and the agreement provided that the

drawings were not due until March 1, 1990, 4 months following

revocation; and, the work was not to start until June 1, 1990. So

far as the overburden on the sewers, testimony was that a

minuscule amount of fill was brought on the site. What actually

occurred was the removal of debris and a grading of the existing

piles of dirt and asphalt as PHC was directed by the City.

e [Fill] on a City water line, which makes useless

City fire hydrants in the area.

This is the same water line replacement agreement referenced

above. When the water line was raised, the fire hydrants would be

raised as part of the line.

e An excessive overburden on a Duquesne Light

transmission line.

Duquesne Light informed the parties, after inspection, that the

overburden was not a problem. In fact, during the Common Pleas

trial, Cimino testified about this problem, not being aware that the

letter from Duquesne Light was in his file.

. Interfere[ence] with sewer systems of

adjoining owners.

The City engineer, Fred Reginella and John L. Skutski, an

employee of the company employed by the City to install sewage

on the subject lot, testified that the septic system was never

connected. Skutski testified that the area was undisturbed by Sol

Gross’ equipment. Sol Gross testified that his work did not involve

the area near the subject houses. Sol Gross testified that he notified

ACHD of the leaking sewage, because it was coming on his

property.

* Landslides in Panther Hollow area.

Exhibits were introduced that both PHC’s engineer and the City

engineer concluded that the land operations of PHC did not cause

the landslides. Moreover, PHC’s engineer’s reports indicated that

the PHC work stabilized the hill. Sol Gross and his excavator,

Anthony Berardi, testified that no work was done on the affected

hillside. Evidence was introduced that an adjoining landowner

dumped debris on the hillside, which did affect it, as well as water

run off from a City street.

° Fill in a manner that would cause

excessive drainage in the Panther Hollow-

Boundary Street area.

PHC’s engineer testified that there was no excessive drainage and

the City engineer’s report indicated that drainage was not a

significant concern at the time.

Review of your Certificate of Occupancy, as well

as the permit to operate a parking lot, indicates

that a large portion of the parking spaces are

located on Boundary Street. Accordingly, no

permit will be issued, separate and apart from the

land operations issue, until a new parking plan is

submitted showing the location of the spaces.

First, the drawings submitted by PHC did not show

parking on the City street. Secondly, a memorandum prepared by

the attorney for the City who actually tried the case, evidenced that

there was no ordinance or other proscription from use of a "paper"

street for parking.

Presently, you have an access road at the lower

end of Boundary Street, which is illegal. You are

not to use this as an access until you receive a

curb cut from the Department of Public Works.

The former head of surveys for the City testified that he was

present when PHC was authorized to install the access road.

Moreover, there was correspondence indicating that PHC was

authorized to install the access road.

In addition, PHC presented a great deal of evidence that

the City actions were pretextual. For instance, Cimino, the

Assistant Chief of BBI who signed the revocation letter, could not

tell the jury how or who helped him write the letter, finally settling

on a former City Solicitor despite previous testimony that he did

not recall. He also testified that he had never visited the site before

November 9, 1989. Prior testimony was introduced from him and

Mr. Feeney (the on site inspector) in which Cimino testified he

had reports from his inspector that the work was causing problems.

Not only did he not have reports, but the inspector testified that all

of the work was satisfactory to the City. The Common Pleas Court

and the jury in this case found Cimino’s testimony unbelievable.

The Chief of BBI testified that City Planning would hold

up projects if they could not have a say in what was being done.

even if not provided for in the ordinances. He testified that City

Planning appeased residents, regardless of ordinances. He also

testified, that it was normal, if there was a severe problem, to

issue a stop work order, but not a revocation.®

A City Planning memorandum was presented that the

property was valuable and would be developed “with or without

Mr. Gross’ cooperation." Additionally, a City Councilman testified

as to a secret meeting during which representatives of the City and

the University of Pittsburgh met and discussed uses for PHC’s

property. Another witness, Alan Gochnour testified that a City

Planning employee expressed dismay that PHC bought the property

and indicated that permits would not be given, regardless of the

ordinances.

The Mayor’s Executive Director testified that the City was

especially concerned over inaccessibility to the fire hydrants (which

were located in a depressed area of the site, previously

inaccessible), but was at a loss to explain how access could be

obtained once the jersey barriers were placed by the City, nor how

fencing in the property (as requested by BBI) would help.

The engineer employed by the City was called by PHC and

testified that PHC did not move more than 16,000 cubic yards of

earth. Numerous exhibits were introduced that the City was

seeking to recalculate the quantity, using different methods, to get

over the 16,000 cubic yard level so as to require a public meeting

as requested by the residents and promised by the City. In fact, the

excavator who did the actual earth moving was called and testified

The difference in the context of this case was significant. If a stop

work order, the permit would remain effective and work could

start once the problems were resolved. Revocation required a new

application, just what City Planning and the residents desired.

ad Cviahe Alla dedi He

that the total earth moved was less than 9,000 cubic yards. On

cross examination, he produced a log book in which he recorded

daily volume (and, to reinforce his credibility, that was the basis

of his charges to PHC). PHC’s engineer testified that the City was

given that information at the September 21 meeting. Despite all of

this, the Third Circuit (Appendix, page 8a), commented that

Daniel T. Sentz, a Planning Department engineer “eyeballed" the

site and concluded more than 16,000 cubic yards of earth were

moved (testimony was he had not even seen the site before the

work was completed). With this, the Third Circuit evidently

concluded that the evidence was overwhelming that PHC violated

its permit.

Despite the clear language of the revocation letter, exhibits

were introduced indicating different reasons for revocation, such

as Cimino’s testimony before City Council in which he

characterized the revocation as due to failure to file "subsequent"

plans and reports (the same reason as the Board of Standards and

Appeals, on which he sat), and the Director of City Planning, who

informed City Council that the revocation was a "response" to

meetings with various residential groups.

To reach its decision to grant a new trial, the Third Circuit

was required to balance the testimony.

_Argument |

Pace

I. The Third Circuit erred when it held that Sol

Gross was not entitled to nominal damages (or any damages)

for the violation of his civil rights by an arrest that was found

to be arbitrary and capricious.

In Carey v. Piphus, 435 U.S. 247 (1978), this court held

that a plaintiff in a civil rights action is entitled to nominal

damages even without proof of actual harm. This case was

followed in Farrar v. Cain, 756 F.2d 1148 (Sth Cir. 1985) and in

this very circuit, in Morrison v. Stepanski, 839 F.Supp. 1130

(M.D. 1993). The Third Circuit ignored these cases and refused

to reconcile the verdict.

II. The Third Circuit violated the 7th Amendment

when it substituted its conclusions for those of the jury as to

factual disputes.

Prior to considering the testimony, one has to isolate the

issue. Evidence at trial indicated that a resolution of the problems

previously complained of occurred on September 21, 1989. The

evidence is overwhelming, consisting of minutes from the meeting,

followed by PHC resuming work without objection by the City and

the memorialization of the agreement to replace the water line. In

addition, the City issued temporary occupancy and parking permits

to permit operation of the lot only 2 weeks before revocation. The

remaining work to be done was minimal and completely unrelated

to the revocation letter, i.e. installing a fence, a barrier around the

fire hydrant (contradicting the testimony of the Executive Secretary

as to the need to access the hydrant) and lighting if the lot were to

be used in the evenings.

No new problems arose after the September 21, 1989

meeting and, certainly not after the November 1, 1989 Water

Department agreement and the BBI letter for conditions precedent

to opening the parking lot. However, there was ample evidence

about heightened neighborhood pressure of City personnel to

revoke the permit, and political activity among the politicians in

the mayor’s office. The dates of residential pressure on the City

coincide with the City’s actions involving PHC.

The jury was justified in reaching its decision. The Third

Circuit violated the 7th Amendment when it substituted its analysis

of the testimony for that of the jury. To reach that issue, the Third

Circuit had to ignore its own decision in Yohannon v. Keene

Corp., 924 F.2d 1255 (3rd Cir. 1991) which diverges from

holdings in other circuits.

Moreover, the Third Circuit considered matters that were

not the basis for revocation. For example, page 3, noting that

“Panther Hollow misrepresented that the property was not in a

—— es eS ee ee ee |

landslide prone area" despite testimony that the application on

which the statement was made was filled in by an employee of

City Planning. Moreover, that work was in a landslide prone area

was not a basis for revocation.

The Third Circuit stated that ACHD began investigating

the sewage discharge on complaints from neighbors, when Mr.

Gross testified he called ACHD.

The Circuit acknowledged that PHC contended the

discharge was onto its property, but then stated that "yet Panther

Hollow refused to clean up the discharge.” It was not the discharge

that needed cleaning, but the septic systems that needed connected.

Why would PHC have a duty to clean someone else’s mess? It was

the City that was required to sewer the houses that were leaking on

to PHC’s property. In fact, the ACHD did cite the City and the

City, at no charge to the residents, did install sewage (over a right

of way given gratis, by PHC).

The Circuit stated that the state DER cited PHC for

violations of the State Stormwater Act, and that PHC "failed to

take action." First, it was for the state to enforce the act, and

second, Mr. Gross testified that he did resolve the differences. No

witness from DER was presented to support the City. How could

PHC dispute state claims made by the City? If the state sought to

enforce its laws, PHC would have been entitled to due process and

a hearing. There was no such provision for the City to hold

hearings on state (or, County) laws.

The Circuit stated that the City was bound to "follow the

County’s direction to take action to stop the discharge of sewage".

If that was true, the remediation was the result of the County

citation against the City, that the City had to provide sewage

access, septic systems not being permitted. PHC could do nothing

to remediate discharge from a neighboring property. The City

could require the offending party to remediate, which it did not.

Instead, it provided sewage access. This was not a PHC

responsibility. PHC did not have the power of eminent domain.

The jurors viewed the property and could judge for

themselves whether the complaints were reasonable (a tour of the

property was taken prior to the start of testimony). The jurors

were made aware that through the date of trial (1996), the land had

sat idle. Surely, they could see that use of the land for a parking

lot would not have been more detrimental to the area than the idle

land. The City took no action to remediate what the Circuit

referenced as "the evidence overwhelmingly supports the City’s

contention that it revoked the permits to protect public safety." If

that had been true, then the City could show some evidence that it

did something or that it caused someone else to do something to

remediate these life threatening situations.’

The fact that the City did nothing following revocation for ‘

over 7 years, was compelling evidence to the jury that the !

problems were pretextual. Combined with other testimony

regarding the City’s plans for the property, the evidence was

overwhelming. . ere was no evidence of City work to comply

with the State Stormwater Act of which the Circuit spoke. All in

all, there was nothing to support the Circuit’s conclusions, let

alone, to justify overturning a jury verdict.

The 7th Amendment is quite clear, that the jury verdict is

sacrosanct, and cannot be reversed, other than as common law.

The “common law" is that as it existed in 1791. Suits at

common law include new forms of action, such as civil rights

actions.

The grant of a new trial, when the trial court substitutes its

own judgment for that of the jury, is an abuse of discretion. So

too, when the appeals court substitutes its judgment for that of the

jury, Lewin v. Metropolitan Life Insurance Company, 391 F.2d j

608, reh.den. (3rd Cir. 1968). ;

Per

As indicated, the only thing done was to provide sewage to the

offending landowners, which was the City’s responsibility. No

issue was ever raised that PHC had any responsibility for the

problem or, that it should bear the cost. No evidence was

introduced indicating that the problems of which the City spoke

were dealt with in any way following revocation.

While there are cases that hold that a court can sequire the

reexamination of evidence by the means of a new trial, Home Ins.

of N.Y. v. Tydol, Inc., 157 F.2d 851 (1946), the appellate court

is limited to issues of law, Mutual Benefit Health & Accident

Ass’n. v. Bowman, 175 F.2d 856 (8th Cir. 1938). Because there

was no motion challenging the sufficiency of the evidence to

sustain a judgment in favor of PHC, made at the close of the case,

and the Court made no special findings, there is no jurisdiction to

reexamine the facts, only the law.

While a motion for directed verdict or for judgment n.0o.V.

raises only a question of law, a motion for new trial is:

addressed to the trial judge’s discretion .... The

exercise of his discretion is not ordinarily

reviewable on appeal, although a failure to

exercise discretion, or an abuse of it, may be

corrected.” Marsh v. Illinois Cent. R. Co., 175

F.2d 498, 500 (Sth Cir. 1949).

This court, in Lavender v. Kurn, 327 U.S. 645 said that "[oJnly

when there is a complete absence of probative facts to support the

conclusion reached does a reversible error appear."

In the instant case, the Third Circuit stated: "While the

City did move for judgment as a matter of law at the end of Sol

Gross and Panther Hollow’s case, we cannot find that the court

erred in denying that motion." (Appendix B, page 12a). If that is

true, then PHC presented a prima facie case. The City presentation

of contrary eviderice does not change the situation to one in which

the verdict was against the "overwhelming weight of the

evidence." (page 4a) In fact, the Circuit gave its reason for

reaching that conclusion:

The city argues that given the outstanding DER

citations and the findings of the Allegheny County

Health Department, it is legally untenable that the

jury could have found that the City acted in an

arbitrary and irrational manner in revoking

Panther Hollow’s permits. (p.13).

However, neither of those reasons were given for the revocation.

They did not appear on the letter. There was no testimony from

any representative of the DER as to the status of the citations,

although it was evident that as of the date of the trial, 5 years

later, no action had been taken by PHC, the City or DER. The

Same was true as to ACHD, except that its representatives testified.

However, the major citation, for the sewage, as discussed, was

something that only the City could remediate. Since when does

PHC have the duty, let alone the right, to enter onto someone

else’s land and put in a sewage system? The jury could easily find

that the lack of evidence of remediation in the 7 years

following the shut down was proof positive that the claims were

pretextual.

The end result is the Third Circuit substituted its own

views for that of the jury in violation of the 7th Amendment.

We recognize that questions of fact or applications of fact

to legal issues are not usually addressed by this Court. However,

the need for a clear direction to the Circuits to give respect to jury

verdicts is important. The Constitution must be obeyed.

—— ee ee

CONCLUSION

In conclusion, the Petitioner respectfully requests this

Honorable Court to grant the within Petition for Writ of Certiorari

and to reverse the decision of the Courts below.

Respectfully submitted,

MAURICE A. NERNBERG

& ASSOCIATES

et Cas

Maurice A. Nernberg

301 Smithfield Street

Pittsburgh, PA 15222

(412) 232-0334 af

Counsel for Petitioner

APPENDIX A

lh i i

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96-3242 and 96-3267

SOL GROSS, an individual;

PANTHER HOLLOW CORPORATION

CITY OF PITTSBURGH,

Appellant in No. 96-3242

SOL GROSS, an individual;

PANTHER HOLLOW CORPORATION

CITY OF PITTSBURGH,

SOL GROSS and PANTHER

HOLLOW CORPORATION,

Appellants in No. 96-3267

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 91-01895)

SUR PETITION FOR REHEARING

BEFORE: SLOVITER, Chief Judge, and BECKER,

STAPLETON, MANSMANN, GREENBERG, _ SCIRICA,

COWEN, NYGAARD, ALITO, ROTH, LEWIS, and MCKEE,

Circuit Judges

: | he

The petition for rehearing filed by the appellees, Sol Gross

and Panther Hollow Corporation, in the above captioned matter

having been submitted to the judges who participated in the

decision of this court and to all the other available circuit judges

of the court in regular active service, and no judge who concurred

in the decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not having

voted for rehearing by the court en banc, the petition for rehearing

is denied.

BY THE COURT:

Circuit Judge

DATED: APRIL 11, 1997

APPENDIX B

12109C.AP1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3242 and No. 96-3267

SOL GROSS, an individual;

PANTHER HOLLOW CORPORATION

CITY OF PITTSBURGH,

Appellant in No. 96-3242

SOL GROSS, an individual;

PANTHER HOLLOW CORPORATION

Vv /

CITY OF PITTSBURGH,

SOL GROSS and PANTHER HOLLOW

CORPORATION,

Appellants in No. 96-3267

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 91-01895)

District Judge: Honorable William L. Standish

Argued February 11, 1997

BEFORE: GREENBERG, COWEN, and MCKEE, Circuit

Judges

(Filed: March 14, 1997)

OPINION OF THE COURT

GREENBERG, Circuit Judges.

Appellant, the City of Pittsburgh, appeals from the district

court’s order denying its motion for judgment as a matter of law

or to amend judgment and its alternative motion for a new trial.

The City argues that there was insufficient evidence to prove that

the City acted in an arbitrary or irrational manner in revoking

appellees Panther Hollow Corporation and Sol Gross’s land

operations, occupancy and parking lot nermits in violation of 42

U.S.C. 5 1983. In addition, the City contends that the district

court made errors with respect to issues relating to damages

against it. Panther Hollow and Gross, a shareholder in Panther

Hollow, cross-appeal, claiming that the district court erred in

instructing the jury on the croper method of determining damages

and made other trial errors as well. In addition, Gross contends

that in view of the jury’s conclusion that his civil rights were

violated, he is entitled to an award of nominal damages and that

the district court erred in denying his post-trial motion to amend

the judgment to include nominal damages. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

Because we conclude that the liability verdict in favor of

Panther Hollow was against the overwhelming weight of the

evidence, we will reverse and order the district court to grant a

new trial on all issues in Panther Hollow’s claim against the City.

This disposition moots the balance of the City’s appeal as well as

the cross-appeal, except to the extent that Gross is seeking nominal

damages. To that extent we will affirm.

I. FACTUAL AND PROCEDURAL HISTORY"

Panther Hollow bought the Pittsburgh property involved in

this case from CSX Railroad in the spring of 1989. The property

was covered with debris and illegally dumped materials and had

1 Panther Hollow provided this court with several

pages of citations to the record in its brief. We have

reviewed the materials to which the citations refer and

where we were able to determine how these materials

support Panther Hollow’s position, we have considered

them in this disposition.

been in this condition for some years. At the time of Panther

Hollow’s purchase, there was a citation from the City’s Bureau of

Building Inspection ("BBI") outstanding against CSX, requiring it

to clean up the accumulated debris on the property. In May 1989,

after the sale, CSX, which apparently retained the obligation to

clean the property, contracted with Ace Demolition Co., which

Gross and his brother-in-law owned, to do the clean-up work. Ace

completed the work on June 15, 1989, and at that time Ace, acting

for Panther Hollow, commenced substantial land operations on the

property without applying for a required permit.

On May 16, 1989, Panther Hollow applied for a permit to

build a parking lot on the property. In its application, Panther

Hollow misrepresented that the property was not in a landslide

prone area. App. at 3089. This misrepresentation became

relevant because of the occurrence of later landslides.

On or about July 20, 1989, after complaints from

neighbors, the City learned that Panther Hollow was causing the

hauling of fill onto the property without a permit. Following a

warning from BBI, Panther Hollow stopped the illegal hauling.

Panther Hollow applied for a land operations permit on July 27,

1989, which it received on July 28. In its permit application,

Panther Hollow represented that a special inspector would survey

the property, inspect the land operations, report weekly and make

certain that the operations were being conducted in accordance

with the land operations application and with applicable law.

However, the special inspector made no inspections and filled no

reports, thus failing to comply with section 1009.06 of the city’s

building code. See br. at 22-23.

In late July 1989, in response to neighborhood complaints,

the Allegheny County Health Department began to investigate

Panther Hollow’s activities and discovered that two sewage

systems of adjoining property owners were damaged and disrupted,

app. at 2947, 2981, causing raw sewage to discharge on to the

property of both neighbors and Panther Hollow. There was a

dispute as to whether the systems were on property belonging to

Panther Hollow or the neighbors, but there was no dispute as to

the discharge. Yet Panther Hollow refused to clean up the

discharge. App. at 2918, 2982, 2981. The Health Department

directed the City to take appropriate actions to terminate the

——

violations to the County Health Code. At that time the County

Health Denartment raised the following questions regarding the

activities being conducted on the land, and asked the City to

respond:

1) Does Mr. Gross have all the necessary permits?

2) Is the filling operation being conducted in a

controlled manner?

3) Is the hillside stable, and will it remain stable?

4) Is adequate fire protection available for the homes

adjacent to the site?

5) Will the excavation have an impact on the bridge

supports in the valley?

6) Is there a storm water management plan or erosion

control plan in place?

App. at 2947.

The County inspection further determined that Panther

Hollow was creating an excessive overburden on the property and

was otherwise in violation of County and State statutes and

regulations. App. at 2952, 3498. Among other things, the hillside

under a nearby city street was sliding, endangering the street and

homes on the hillside. Responding to a referral from the County

Health Department, and, in all likelihood, an article which

appeared in the Pittsburgh Gazette on July 27, 1989, the State

Department of Environmental Resources ("DER") inspected the

property on July 27, 1989, and cited Panther Hollow and Ace

Demolition for violations of the State Stormwater Act and statutes

and regulations regarding erosion and sedimentation controls.

Nevertheless, Panther Hollow failed to take action to abate the

violations. Instead, as we have indicated above, on July 27, 1989,

Panther Hollow applied to the City for a land operations permit

which it received the following day. As earlier stated, Panther

Hollow previously had applied for and received a parking lot

permit.

After the issuance of the land operations permit, the City

received still more neighborhood complaints. In addition, on

October 6, 1989, the County Health Department notified the mayor

that Ace Demolition had violated the Pennsylvania clean Streams

Law and the Pennsylvania Sewage Facilities Act. App. at 2949.

The County Health Department further advised the mayor that as

a direct result of the excavation activities, the sewage disposal

systems on the property had malfunctioned, resulting in a

discharge of sewage onto the land. The County Health

Department also informed the City that the discharge of sewage

“pose[d] a potential danger to the health of the public . . . and

constituted a health hazard under the Local Health Administration

Law, Act 315." App. at 2949.

During this same period, the Director of the City Water

Department warned Panther Hollow that Panther Hollow had

buried a City water line under an excessive amount of fill.

Though it agreed to relocate the line, app. at 3138, Panther

Hollow took no actions to effectuate the relocation. The Water

Department also found that Panther Hollow had buried manhole

covers providing access to a storm sewer and had placed ten to

twelve feet of fill around a fire hydrant, preventing access to the

hydrant. And again, though Gross seemed to agree to install a

new water line to remedy this, no action was taken. App. at 3176.

In response to continuing neighborhood complaints, various city

officials visited the propertv. The County Health Demartment

finally recommended to the Citv that the permits be revoked.

Although a meeting was held on September 21, 1989, in an

attempt to resolve the dispute between Panther Hollow and the

City, the parties did not reach a resolution.

Despite all of the foregoing, on October 20, 1989, Panther

Hollow applied for a temporary occupancy permit to open its

parking lot and obtained it the following day. Though the permit

called for a signature by a BBI senior inspector, the chief of BBI

signed it. On October 23, 1989, a representative of the City

Planning Department inspected the property. App. at 1801. He

identified violations of State statutes and regulations and County

health regulations, and noted that Panther Hollow had moved more

than 16,000 cubic yards of material, which required a conditional

use application. App. at 2963, 3499. The following day, City and

County employees held a joint meeting to discuss the health hazard

created by Panther Hollow as a result of the excavation work and

addressed the following problems:

— eee re ee eee ele “~

1. Sewage discharges from septic systems [on the

land had] resulted from the excavation

activities.....;

ae Manholes for the City of Pittsburgh sewer lines in

the area are now below the new grade provided by

Mr. Gross’s filling operations [and need to be)

extended to make them accessible;

3. Fire hydrant(s), and possibly valves, for Pittsburgh

public water lines have also been placed below the

new grade level and must be raised to make

[them] accessible at the new grade level;

4. No storm water management system appears to be

in place; [ ] substantial alteration of the natural

hillside has been made, raising concerns (about the

stability of the hillside]; [Gross’ activities are in

violation of] the Erosion Control Regulations of

the DER [and include] failure to provide an

Erosion and Sedimentation control Plan, (failure)

to stabilize critical areas, and allowing sediment to

flow into waters of the Commonwealth.

App. at 2951-52.

After the meeting, Daniel T. Sentz, an environmental engineer and

representative of the City Planning Department who was present

at the meeting and had inspected the site, evaluated the situation

and concluded that all permits granted to Panther Hollow should

be revoked and all work stopped because of Gross’s "excessive

exceedence of what he was permitted to do. App. at 2963. In his

October 25, 1989 memo to members of the City Planning

Department, Sentz noted that Gross created a health hazard by

excavating drainage fields of two septic systems, triggered slope

movement by excavating and removing vegetation from the

hillside, brought in more than the allowable 16,000 cubic yards of

fill, and excavated up to the property lines which is not permitted

by City regulations. Id. at 2962-64. He concluded that although

BBI “seem(s] to feel Gross is doing something good for the City

_. . . Gross’s actions have been physically, socially, and legally

detrimental to the City. Credibility in [the City’s] approval and

inspection procedures has suffered significantly on this project."

Id. at 2964.

Following a meeting on October 24, 1989, attended by

both City officials and representatives of the County Health

Department, a recommendation was made to the mayor to have

Panther Hollow cease all activity on the land until all public health

and safety issues on the land had been addressed. On November

6,1989, City officials from the various departments involved in the

matter met to discuss revocation of the permits.

At the end of the discussion, they reached a consensus and all

present agreed that the permits should be revoked. A

recommendation to this end was sent to the Mayor by letter dated

November 9, 1989. App. at 2951. Also by letter dated November

9, 1989, the City revoked the parking lot, land operations and

temporary occupancy permits, stating as reasons the following

"dangerous" conditions:

a) . . . excessive overburden on two City sewers and

a water line located within the fill area;

b) [fill] on a City water line, which makes useless

City fire hydrants in the area;

Cc) . . . excessive overburden on Duquesne Light

transmission;

d) interferes with sewer systems of adjoining

property owners;

e) . . . Caused landslides in the Panther Hollow area;

f) . . . fill [ ] placed in a manner that will cause

excessive drainage in the Panther Hollow-

Boundary Street area.

App. at 3157. On this same date, a community group, Oakland

Directions, Inc., held a meeting to discuss the Panther Hollow

development. The minutes of this meeting reflect that several city

representatives addressed the concerns expressed by community

residents and informed the residents that Gross’s permits had been

revoked and would not be reinstated until he submitted a plan to

correct the landslide, drainage, and utility problems and complied

with other documentation procedures required by the City. App.

at 3159-62.

It must not be thought that only the City saw a problem on

the property. In a remarkable letter dated November 22, 1989,

GeoMechanics, Inc., a firm emoloyed by Gross, wrote BBI

discussing conditions on the property. App. at 3176-78. While

GeoMechanics understandably sought to minimize the seriousness

of the conditions and shift blame away from Gross, still it

indicated "that dangerous and hazardous conditions have not been

created to the degree indicated by the City of Pittsburgh." Thus,

even Gross’s representative saw that there were serious problems

with the property.

Following revocation of the permits, Panther Hollow

appealed the revocation to the City’s Board of Standards and

Appeals which sustained the revocation. Panther Hollow then

appealed that decision to the Court of Common Pleas which

reversed and ordered reinstatement of the permits. The City then

appealed the decision to the Commonwealth Court. The issues on

appeal included whether Panther Hollow’s appeal to the Court of

Common Pleas was timely, and whether the City’s revocation of

the permits was justifiable. After remand to the Court of Common

Pleas on the issue of timeliness, which remand determined that the

appeal had been timely, the City appealed again to the

Commonwealth Court. However, this appeal was dismissed

because the claim for restoration of the permit became moot when

the City placed barriers around a portion of the property, allegedly

to ensure public safety.

Following placement of the barriers, Panther Hollow filed

a petition in the Court of Common Pleas for the appointment of a

board of viewers alleging a de facto taking resulting from

placement of the barriers. The City filed preliminary objections

to the petition, and no further action was taken by either party

until March 8, 1996, four days before the damage verdict in the

federal case, when the City withdrew its preliminary objection and

effectuated a de facto taking of the property. The taking related

back to December 1, 1989, 22 days after the permits were

revoked. The board of viewers hearing was scheduled for

December 12, 1996. The district court did not allow any aspect

of the de facto taking case to be presented to the jury, because as

of March 8, 1996, only closing arguments and the charge and jury

verdict on damages remained at trial.

Panther Hollow and Gross filed this action under 42

U.S.C. S 1983, on November 5, 1991, alleging that the City

violated their civil rights by wrongfully, arbitrarily and

capriciously revoking the land operations, temporary occupancy,

and parking lot permits. In addition, Gross charged that his rights

were violated by the wrongful issuance to him of a citation for

working without a permit. The complaint as originally filed

named as defendants various City officials, the City, and several

neighborhood groups and residents. The district court granted

summary judgment in favor of the private defendants, and the suit

against the individual city defendants was dismissed because they

were acting in their official capacities. The district court also

granted the City summary judgment as to Gross’s claims which

involved a deprivation of his constitutionally protected interests

arising out of the City’s conduct because the court determined that

Gross was not the true owner of the property, but instead merely

held the deed for Panther Hollow and thus had no constitutionally

protected liberty or property interest in the land. However,

because the court found issues relating to Gross’s claims of

deprivation of a liberty interest due to malicious prosecution, abuse

of process and harassment, it denied the City’s motion for

summary judgment as to that claim.

The case was tried before a jury from January 9, 1996,

through March 12, 1996. Following the close of the plaintiffs’

case, the City moved for judgment as a matter of law, which the

court denied. In a bifurcated trial, a jury found that the City had

violated the civil rights of both Panther Hollow and Gross, later

awarding Panther Hollow damages of $565,824, but awarding no

damages to Gross. The jury also found that the fair market value

of the property was $2,500,000 with the permits in effect and

$2,000,000 without the permits in effect.

Following the trial, the City filed a motion for judgment

as a matter of law or, in the alternative for a new trial, which the

district court denied. Panther Hollow and Gross filed a motion to

amend judgment or for a new trial, claiming that the district court

erred in instructing the jury on the issue of damages which the

district court also denied. All parties appeal. However, the City

has not appealed the judgment in favor of Gross on liability as the

jury determined that he sustained no damages.

II. DISCUSSION

The City argues that given the outstanding DER citations

and the findings of the Allegheny County Health Department, it is

legally untenable that the jury could have found that the City acted

in an arbitrary and irrational manner in revoking Panther Hollow’s

permits. We agree. Nevertheless, as Panther Hollow correctly

points out, because the City failed to move for judgment as a

matter of law at the end of all of the evidence, we cannot now

direct the entry of a judgment in its favor. See Yohannon v.

Keene Corp., 924 F. 2d 1255, 1262 (3d Cir. 1991). While the

City did move for judgment as a matter of law at the end of Gross

and Panther Hollow’s case, we cannot find that the court erred in

denying that motion.

However, after the jury verdict, the City did make a

motion for a new trial which in most circuits would be proper, as

"a litigant may move for a new trial under Rule 59 based on the

overwhelming evidence contrary to the verdict without ever

previously raising such an objection. " Pulla v. Amoco Oil Co., 72

F.3d 648, 656 (8th Cir. 1995). In this circuit, however, a party

ordinarily may not move for a new trial on the ground that the

verdict is against the weight of the evidence without first moving

for judgment as a matter of law at the end of all of the evidence.

See Yohannon, 924 F.2d 1261-63. But in this case we will not

apply that rule as Panther Hollow does not contend that it opposed

the City’s motion for a new trial on the procedural ground that the

City did not move for judgment as a matter of law at the end of all

of the evidence. In fact, Panther Hollow does not even raise that

point in its brief on this appeal. Br. at 33-36. Indeed, Panther

Hollow cites Pulla_v. Amoco for the standard of review in

considering the district court’s order denying the motion for a new

trial and it is that very case, contrary to Yohannon, which Panther

Hollow does not cite, that indicates that a party may move for a

new trial on the grounds that a verdict is against the weight of the

evidence without having raised that issue at the trial. Finally,

Panther Hollow points to nothing in the record to support a

conclusion that the district court denied the motion for a new trial

l2eé

on the ground that the City did not move for judgment as a matter

of law at the end of all of the evidence.

Clearly the verdict was against the overwhelming weight

of the evidence because there was no basis on which the jury could

have found that the City deprived Panther Hollow of its substantive

due process rights under section 1983 by arbitrarily and

irrationally revoking its permits. Consequently, the district court

abused its discretion by denying the motion for a new trial and we

will remand the case f or a new trial. Dunn v. Hovic, 1 F.3d

1362, 1364 (3d Cir. 1993). Of course, our opinion does not

preclude the City from moving for summary judgment on the

remand.

To prevail in a section 1983 action, a plaintiff must

establish "(1), that the conduct complained of was committed by a

person acting under color of state law and (2) that the conduct

deprived a person of rights, privileges, or immunities secured by

the Constitution or laws of the United States." Shaw by Strain v.

Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990) (citation and

internal quotation marks omitted); see Mark v. Borough of

Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert. denied, 116 S.Ct.

165 (1995). Panther Hollow and Gross argue that the City’s

conduct deprived them of their substantive due process rights.

Substantive due process protects citizens from arbitrary and

irrational acts of government. Rogin v. Bensalem Township, 616

F.2d 680, 689 (3d Cir. 1980). To prove a substantive due process

violation a plaintiff must prove: (1) a government’s actions were

not rationally related to a legitimate government interest, or (2) a

government’s actions were motivated by bias, bad faith or

improper motives. Midnight Sessions, Ltd. v. City of

Philadeliphia, 945 F.2d 667, 683 (3d Cir. 1991).

Without defining those state-created property interests

protected by substantive due process, we held in Reich v. Beharry,

883 F.2d 239, 244 (3d Cir. 1989), that "[i]t is apparent . . . that,

in this circuit at least, not all property interests worthy of

procedural due process protection are protected by the concept of

substantive due process." In Reich the plaintiff had been hired by

the county to investigate and prosecute the county controller.

When he completed the assignment and submitted the bills,

payment required the controller’s approval. When the approval

13a

was not granted, Reich sued. We affirmed the district court’s

grant of summary judgment in favor of the defendants. While

Reich may have had an interest in being paid for his services

without delay, this interest was not deemed fundamental. Thus, in

Reich we said that "ijn Mauriello v. U. of Med. & Dentistry of

N.J., 781 F7.2d 46 (3d Cir.), cert. denied, 479 U.S. 818, 107

S.Ct. 80 (1986), this court acknowledged that what constitutes a

property interest in the procedural due process context might not

constitute one in that of substantive due process... - [While

property rights for procedural due process purposes are created by

state law, substantive due process rights are created by the

Constitution." Reich, 883 F.2d at 244.

We, however, did find a colorable claim of substantive due

process violation in Bello v. Walker, 840 F.2d 1124 (3d Cir.

1988), reversing the district court’s grant of summary judgment in

favor of the defendants. We held that “the deliberate and arbitrary

abuse of government power violates an individuals right to

substantive due orocess." Id. at 1129. The plaintiff, a developer

who was denied a building permit, had presented sufficient

evidence of a substantive due process violation actionable under

section 1983 to overcome a summary judgment petition.

Though in Bello we did not discuss whether the plaintiffs

possessed a property interest worthy of substantive due process

protection, subsequent cases make clear that a plaintiff must have

been deprived of a particular quality of property interest. In

Aciernc vy. Cloutier, 40 F.3d 597, 616 (3d Cir. 1994) (quoting

Midnight Sessions, 945 F.2d at 679), we held that a plaintiff

complaining of a violation of his substantive due process rights

must prove that the governmental authority “acted to infringe [ ]

a property interest encompassed by the Fourteenth Amendment."

We also have stated that to prevail on a substantive due process

claim, a plaintiff “must demonstrate that an arbitrary and

capricious act deprived them (sic) of a protected property interest. .

Taylor Inv., Ltd. v. Upper Darby Township, 983 F.2d 1285, 1292

(3d Cir. 1993).

In DeBlasio v. Zoning Bd. of Adiustment, 53 F.3d 592 (3d

Cir), cert. denied, 116 S.Ct. 352 (1995), we found that it was

consistent with Bello to conclude that ownership is a property

interest worthy of substantive due process protection. "Thus...

in situations where the governmental decision in question impinges

upon a landowner’s use and enjoyment of property, a land-owning

plaintiff states a substantive due process claim where he or she

alleges that the decision limiting the intended land use was

arbitrarily or irrationally reached." Id. at 601. Or, as we

explained in Midnight Sessions, 945 F.2d at 683, a violation of

substantive due process rights is proven if the "government’s

actions in a particular case were motivated by bias, bad faith or

improper motive...."

Panther Hollow argues that based upon the evidence at trial,

the jury reasonably concluded that the City’s actions in revoking

the permits were not rationally related to a legitimate government

interest. It asserts that the reasons cited by the City for revocation

of the permits were pretextual and not supported by the evidence.

Br. at 35. Panther Hollow further argues that at the time the

permits were revoked, the City was aware that each of its concerns

was either non-existent, resolved, or unsupported. Therefore,

Panther Hollow contends that the City’s real motivation in

revoking the permits was not to alleviate a health concern; but

rather to appease the community residents who protested the

development of the land.

The City, in contrast, argues that its actions were rationally

related to a legitimate government interest, namely protection of

public health and safety, as well as protection of adjoining

properties and the environment. The City points to several areas

in the record that demonstrate that Panther Hollow violated health

and environmental regulations. Primarily, the City points out that

both the County Health Department and DER independently

investigated the situation, and both concluded that Panther Hollow

had violated various health and environmental regulations. The

City also notes that DER issued citations to Panther Hollow for

environmental violations to which Panther Hollow never

responded. The City further explains that it was required to follow

the County’s direction to take action to stop the discharge of

sewage, that "[s]ewage within the confines of municipal boundaries

is the responsibility of the municipality." Br. at I8 (citing app. at

2949). Moreover, the State and County violations also constituted

violations of the Pittsburgh Code.

The City thus argues that it had the power to revoke the

l5a

permits, and reached the decision to do so in a reasonable and

rational manner. First, the City’s Land Operations Control

ordinance provides:

Whenever the work for which a permit has been issued

is not being performed in conformity with the plans,

specifications and descriptions filed with the application,

the Chief may suspend or revoke the permit in

accordance with the procedures set forth in Section

1009.13. The Chief may also suspend or revoke the

permit when he finds that the continuation of the work

would create a dangerous condition or a hazard to life or

property.

Appellant Br. at 20-21 (citing Pittsburgh Code Title 10, Ch. 1009,

Section 1009.11). The City urges that the raw sewage discharge

constituted "a dangerous condition or a hazard to life or property"

under the City Code. Also, the revocation decision was made at

a meeting attended by several City officials familiar with the

situation. At the conclusion of the meeting, a consensus was

reached by the members of the meeting to revoke the permits.

The City suggests that the Chief of BBI, Paul Imhoff, on whom

Panther Hollow and Gross largely rely, was wrong in not revoking

the permits earlier. The City argues that the decision to revoke the

permits was proper and necessary to protect the health and safety

of its citizens.

While we recognize that we must view the record most

favorably to Panther Hollow, and we further recognize that there

was widespread community ovposition to Panther Hollow’s

activities, the record does not support a conclusion that the City

acted to appease community residents, revoking the permits in the

face of knowledge that there were no real safety issues on the

property. In contrast, the evidence overwhelmingly supports the

City’s contention that it revoked the permits to protect public

safety. In these circumstances, the verdict was against the weight

of the evidence, and thus we will reverse the order denying the

City’s motion for a new trial. Indeed, as we have pointed out,

Gross’s representatives knew that there were serious problems on

the property. It is simply not tolerable for a land use dispute of

————

this kind to be packaged as a civil rights case under 42 U.S.C. S

1983.

In reaching our result, we recognize that the state court

reinstated the permits. But we do not regard that action as

controlling. A party does not establish that its substantive due

process rights have been violated merely because a state court finds

that a state actor’s action in revoking a license cannot be upheld.

Furthermore, Panther Hollow does not claim that the state court

decision reinstating the permit was in evidence before the jury. In

these circumstances, that decision cannot be used to support the

verdict.

Panther Hollow further points out that the district court did

rule that "the City could not argue any facts determined by [the

Common Pleas Court] or necessary to [its] decision." Br. at 36.

It thus appears that the decision did have some preclusive effect in

the district court. Yet Panther Hollow urges that we “should give

preclusive effect" to the Common Pleas decision for purposes of

this appeal. Id. Of course, this argument is not germane to our

review of the order denying the new trial as the Common Pleas

court decision was not in evidence before the jury. If Panther

Hollow thought that the Common Pleas judgment was not given

adequate preclusive effect by the district court, it should have

raised that issue on this appeal, but it has not done so. Its

argument to us that the Common Pleas Court decision "supports

the jury’s verdict that the City violated [its] substantive due process

rights under 42 U.S.C. S 1983," br. at 36, thus is misplaced.

Gross appeals the district court’s refusal to award him

damages despite the jury’s verdict in his favor. As we have

indicated, although the jury found that the City violated Gross’s

rights, it refused to award any damages. App. at 129. He

contends that he was entitled to an award of at least nominal

damages. On this point, we first observe that we would not

remand for the entry of an award of any damages; it is possible

that the jury reached a compromise verdict when it resolved the

liability issue in favor of Gross, as it may at that time have

intended not to award any damages following the finding on

liability. Thus, the most relief Gross could obtain would be a new

trial on both liability and damages. See Stanton v. Astra Pharm.

Prods Inc., 718 F.2d 553, 576 (3d Cir. 1983).

ie tab ree eee

In any event, the violation of Gross’s rights -- the issuance of

a citation which was withdrawn -— seems to us to be so

inconsequential that, whatever might be true in cases involving

fundamental rights, the verdict was not flawed when the jury did

not award damages; it was not inconsistent for the jury to find that

his rights had been violated and he suffered no damages. If Gross

believed that the jury was required to award him damages as a

matter of law if it found the City liable, then he should have asked

the district court to charge the jury along those lines. Yet, in his

brief he does not claim to have asked for that charge and we draw

the inference that he did not do so because in his brief he indicates

that he "preserved this issue for appeal by raising it with the trial

judge after the verdict and in [his] motion to Amend Judgment or

for New Trial." Br. at 3. See also br. at 31. Thus, we will affirm

on Gross’s crossappeal.

The effect of our decision is to reverse on the appeal to the

extent that it is not moot, and to affirm on the crossappeal to the

extent that it is not moot. Thus, we will remand the case for a

new trial, but only as to Panther Hollow’s claim against the City.

As we have pointed out, however, we are not precluding the City

from moving for summary judgment.

Furthermore, on the remand the City is free to raise Williamson

County Reg’! Planning Comm’n v. Hamilton Bank, 473 U.S. 172,

105 S.Ct. 3108 (1985), and Littlefield v. City of Afton, 785 F.2d

596 (8th Cir. 1986), cases we brought to the attention of the

parties prior to oral argument on this appeal.

In this regard, we point out, even though our result is not

dependent on the observation, that the state proceedings should

make Panther Hollow substantially whole for the actual

interference with the use of its property, for the City takes the

"position that since the City acquired the property as of December

1, 1989, whatever civil rights claims Panther Hollow has and

damages which follow would be only for a period of twenty-one

days." Br. at 9. Of course, the 21-day period would start when

the City revoked the permits. Thus, in the state proceeding the

City concedes that "Panther Hollow will receive the fair market

value of the property . . . as of December 1, 1989." Br. at 13.

Panther Hollow and Gross have filed a motion to dismiss the

appeal and for sanctions. After a careful review of this matter, we

18a

have concluded that while the appeal has not been well presented,

we nevertheless should deny these motions.

III. CONCLUSION

For the foregoing reasons, we will reverse the order denying

the City a new trial and will affirm the order denying Gross’s

motion to amend the judgment. We will deny the motion to

dismiss the appeal and deny the motion for sanctions. We will

remand the matter for further proceedings consistent with this

opinion.

TO THE CLERK: .

Please file the foregoing opinion.

Circuit Judge

DATED: March 14, 1997

19a

—Se ee e aeeee

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SOL GROSS, an individual, )

PANTHER HOLLOW )

CORPORATION, )

Plaintiff, )

)

vs. ) Civil Action No. 91-1895

)

CITY OF PITTSBURGH, )

Defendant. )

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for a trial by

jury. The issues have been tried and the jury has rendered

its verdict.

IT IS ORDERED AND ADJUDGED as follows:

1. Judgment be, and hereby is, entered in favor of

defendant, City of Pittsburgh, and against plaintiff Sol

Gross as to the claim asserted by plaintiff Sol Gross

in Count One of the complaint.

8 Judgment be, and hereby is, entered in favor of

plaintiff Panther Hollow Corporation and against

defendant, City of Pittsburgh, in the amount of

$565,824.00 as to the claim asserted by plaintiff

Panther Hollow Corporation in Count Two of the

complaint.

13 March 1996

Date Clerk

/S/William L. Standish

WILLIAM L. STANDISH (by) Deputy Clerk

UNITED STATES DISTRICT JUDGE

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SOL GROSS, an individual, and __+)

PANTHER HOLLOW )

CORPORATION )

)

Plaintiffs, )

vs. ) Civil Action No. 91-1895

)

CITY OF PITTSBURGH, )

)

Defendant. )

SPECIAL VERDICTS

AND NOW, this 12. day of March, 1996, we, the jurors

empaneled in the above-entitled case, return the following special

verdicts, pursuant to Fed.R.Civ.P. 49(a):

State the amount of damages you find that

plaintiff Sol Gross is entitled to recover from

defendant, City of Pittsburgh, for the

violation of his civil rights under Section

1983.

$ _0

What was the fair market value of the

property of plaintiff Panther Hollow

Corporation before the revocation of its

permits on November 9, 1989?

$ _ 2,500,000

2la

eee ee eS

What was the fair market value of the

property of plaintiff Panther Hollow

Corporation after the revocation of its permits

on November 9, 1989?

$ _2,000,000

(Exhibit B)

4. State the amount of damages you find that

plaintiff Panther Hollow Corporation is

entitled to recover from defendant, City of

Pittsburgh, for the 64-month period between

the date of the revocation of its permits in

November, 1989 and the date of your verdict

on liability in February, 1996.

$__ 565,824

(After you have answered Special Verdict No. 4, please inform the

Deputy Clerk so that you may return to the courtroom to deliver

your verdicts.)

23a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SOL GROSS, an individual, and )

PANTHER HOLLOW )

~CORPORATION, )

)

Plaintiffs, )

VS. ) Civil Action No. 91-

) 1895

)

CITY OF PITTSBURGH, )

)

Defendant. )

SPECIAL VERDICTS

AND NOW, this 26 day of February, 1996, we, the jurors

empaneled in the above-entitled case, return the following special

verdicts, pursuant to Fed.R.Civ.P. 49(a):

1. Do you find by a preponderance of the evidence that the

conduct of defendant, City of Pittsburgh, on September 18, 1989,

violated the rights of plaintiff Sol Gross under Section 1983 of the

federal Civil Rights Act?

(Regardless of your answer to Special Verdict No. 1, please

answer Special verdict No. 2.)

2. Do you find by a preponderance of the evidence that the

conduct of defendant, City of Pittsburgh, on November 9, 1989,

violated the rights of plaintiff Panther Hollow Corporation under

Section 1983 of the federal Civil Rights Act?

Yes X No

(Exhibit C)

24a

(After you have answered Special Verdict No. 2, please inform the

Deputy Clerk so that you may return to the courtroom to deliver

your verdicts.)

25a

12109c.AP7

APPENDIX D

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

PANTHER HOLLOW

CORPORATION

Vv.

CITY OF PITTSBURGH

BOARD OF STANDARDS

AND APPEALS, :

Appellant ; No. 1743 C.D. 1995

ORDER

NOW, this 18th day of March, 1996, upon consideration

of appellee’s emergency motion re: prior petition to dismiss for

mootness, and in reliance upon the representation of George R.

Specter, Esquire, attorney for appellant, that the property interest

in the case has been affected by the appellant, because the

appellant has withdrawn preliminary objections in Opposition to

appellee’s petition for appointment of viewers to assert a de facto

condemnation, appellee’s petition to dismiss for mootness is

granted and this appeal is dismissed as moot.

/S/James R. Kelley

JAMES R. KELLEY, Judge

CERTIFIED FROM THE

RECORD AND ORDER

- EXIT

MARCH 18, 1996

/s/ C.R. Hostutler

Deputy Prothonotary -

Chief Clerk

26a

APPENDIX E

IN THE COURT OF COMMON PLEAS OF ALLEGHENY

COUNTY, PENNSYVANIA CIVIL DIVISION

PANTHER HOLLOW

CORPORATION,

Appellant, No. SA 3428-90

CITY OF PITTSBURGH

BOARD OF STANDARDS

AND APPEALS,

Appellee

OPINION AND ORDER

SUSTAINING APPEAL

Filed by:

Robert C. Gallo, J.

Criminal Court Judge

Common Pleas Court

513 Courthouse

Pittsburgh, PA 15219

(412) 355-3831

Copies sent to:

James R. Cooney

Counsel for Appellant

Howard J. Schuiberg

Assistant City Solicitor

Counsel for Appellee

27a

IN THE COURT OF COMMON PLEAS OF ALLEGHENY

COUNTY, PENNSYLVANIA CIVIL DIVISION

PANTHER HOLLOW

CORPORATION,

Appellant, No. SA 3428-90

CITY OF PITTSBURGH

BOARD OF STANDARDS

AND APPEALS,

Appellee

GALLO, J

OPINION

1. PROCEDURAL HISTORY

This case comes before this Court by way of a statutory

appeal filed by Appellant, Panther Hollow Corporation (PHC)

requesting a de novo hearing. The subject of this appeal involves

a tract of land located in the fourth and fourteenth wards of the

City of Pittsburgh. The source of Appellant’s discontent arose

from the revocation of three of its permits relating to the

developing of a parking lot on 42.7 acres of the property. The

Bureau of Building Inspection of the City of Pittsburgh revoked the

permits on November 9, 1989. PHC appealed that decision to the

Appellee, City of Pittsburgh Board of Standards (the Board) and

after a hearing, it was affirmed by the Board on January 16, 1990.

Since the record of the proceeding before the Board was not

complete, the status of the matter made a remand impractical.

Before commencement of a de novo hearing, this Court denied

28a

Appellant’s request to stay the adjudication of the Board. In

addition, a motion for reinstatement of the permit was also denied.

The City also argued that PHC’s appeal from the Board’s decision

was untimely filed, but this Court denied that motion. Appellant

generally argues that revocation of its permits was accomplished

in an arbitrary and capricious manner. Appellee counters that the

revocation resulted from violations of various City ordinances

pertaining to the tract.

II, FACTS

In early 1989, Appellant, Panther Hollow Corporation

(PHC) together with three individuals entered into an agreement to

buy a tract of land consisting of twenty-six (26) acres from the

CSX Railroad located in both the fourth and fourteenth wards in

the City of Pittsburgh. PHC’s intention was to develop a parking

lot for approximately five hundred sixty-five (565) cars on said

tract of land. The parking lot was to be situated on a large portion

of the land which is located on Boundary Street.

The land had been the source of illegal dumping of

garbage and junk for a number of years and had been cited by the

City for clean up purposes. It was also landslide prone due to the

dumping of materials on the hillside necessitating the closing of

Boundary Street. Prior to the purchase of the property, PHC was

hired by the former owners to remove the objectionable materials

from the property which it accomplished with the City’s Bureau of

Building Inspection approval.

Subsequently, PHC requested and received permission

from the City to re-grade the Boundary Street area and to construct

an asphalt drive. As a result, a land operations permit was issued

on July 27, 1989. On October 19, 1989, a temporary certificate

of occupancy was also issued to PHC, and then on October 20,

1989, an application for a parking lot permit was issued.

After work had been commenced on the property, a slide

developed which emanated from the prior years of dumping. As

a result, PHC retained the services of a duly qualified soils

engineering firm, Geo Mechanics Inc., to determine the stability

of the hill. Both PHC and the City agreed that Geo Mechanics

was duly qualified to make that determination.

29a

Both the Engineering firm and the City concluded that the

cause of the slide was the result of the prior dumping which had

occurred before PHC had purchased the property. The firm

further concluded that the hill posed no imminent danger, that the

Site was safe for its proposed use as a parking lot, and that grading

improved the stability of the hill.

In spite of this determination, concerns regarding City

water lines that ran through the property were subsequently raised.

During this period of time, a citizens group known as Oakland

Directions Inc., (ODI), had complained to the City regarding

generally the development of the site, and more particularly the

instability of the hillside and its excessive drainage. Because of

their concerns, the City’s director of planning met with ODI on at

least three occasions during the latter part of the year. The last

occasion for a meeting of City officials with ODI occurred on

November 7, 1989.

On September 27, 1989, in response to the concerns of the

City, PHC had agreed to install a new 16-inch water line according

to City specifications, and made arrangements for a drainage plan.

This entailed a proposed installation at PHC’s own expense with

the plans to have been submitted by March 1, 1990.

By letter of Novemmer 1, 1989, to Sol Gross, Alex G.

Scuilli, Director of the Department of Engineering and

Construction confirmed the agreement and requested that PHC

submit its engineering plans and specifications for a 16-inch water

line to be installed at its own expense with anticipated completion

of the project to occur by June 1, 1990.

In accordance with the directives of the Bureau of Building

Inspection, PHC installed a chain link fence around the fire

hydrant excavation. PHC incurred considerable expenses

attempting to build the parking lot and PHC had been extremely

cooperative with the Bureau of Building Inspection during the

clean up and improved the site.

on November 9, 1989, the three permits of PHC were

revoked. The City, through Dominic Cimino, the Assistant

Superintendent of Building Inspection, concluded that PHC was in

excess of 16,000 cubic yards of fill that was to be moved and that

the fill it placed had depth in excess of twenty feet. The City

further concluded that dangerous conditions resulted including but

30a

not limited to placing an excessive overburden on two City sewers

and a water line, making useless City fire hydrants in the area,

placing an excessive overburden on a Duquesne Light

transmission, interfering with sewer systems of adjoining property

owners, causing landslides in the Panther Hollow area, and placing

the fill in a manner that would cause excessive drainage in the

Panther Hollow-Boundary Street area.

In addition, PHC was directed to cease all operations. At

the time of this revocation, Paul Imhoff, the Chief of the Bureau

of Building Inspection, was out of town at a meeting. He had

approved and signed the temporary permits issued to PHC.

However, the letter of revocation was signed by Dominic Cimino,

the Assistant Superintendent of the Bureau of Building Inspection.

On November 22, 1989, Geo Mechanics Inc., on behalf of PHC

responded by letter to the Bureau of Building Inspection’s decision

that alleged dangerous and hazardous conditions had not been

created to the degree indicated by the City of Pittsburgh.

Notwithstanding, the City declined to reinstate the permits.

Ill. CONCLUSION

Because a record of the proceedings before the Board of

Standards and Appeal is incomplete, a de novo hearing was held

before this Court to determine whether the revocation of

Appellant’s permits by Appellee was proper. Therefore, the

burden on proof was upon Appellee to demonstrate that the

revocation of Appellant’s permit was appropriate under existing

law. Appeal of Lawrence T.P. Bd. of Sup’rs, 544 A.2d 1070,

1074 (Pa. CMNWLTH 1988).

Testimony presented by the City did not confirm the

severity of the alleged problems. It is undisputed that revocation

of the permits occurred before the due date of PHC’s plan

submissions. Paul Imhoff, Chief of the Bureau of Building

Inspection, who was personally familiar with the site and

Appellant’s work, testified that there were no problems with

Appellant’s work. In addition, he further testified that the

revocation of the permits was unjustified in light of Appellant’s

cooperation. Sol Gross, the President of PHC testified that he had

incurred costs of approximately $142,737 in building the parking

3la

lot.

The City revoked the land operations permit because PHC

was allegedly in excess of 16,000 cubic yards of fill. James R.

Deglau, the sole principal of Deglau Engineering, had been hired

by PHC to prepare a boundary survey and a plot plan which he

submitted to Sol Gross on November 8, 1989. He testified that he

prepared an analysis of the amount of earth that PHC moved on

the site, concluding that only 14,511 cubic yards of earth had been

moved. Furthermore, the Assistant Superintendent’s testimony

indicated that he accepted the numbers submitted in a report by

Thomas F. Easton showing cuts totaling 14,447 cubic yards and

fills amounting to 15,780 cubic yards. It is undisputed that Easton

had been retained by the City’s Department of Engineering.

Although the City had hired Easton to ascertain the amount

of dirt that had been moved, the Assistant Superintendent testified

that he was not aware of the report. Finally, he testified that’he

was not sure from whom he had actually obtained information that

PHC had moved in excess of 16,000 cubic yards of fill.

The City had also concluded that PHC had placed a fill in

excess of twenty feet. However, Deglau testified that the highest

level of fill on the Panther Hollow property was ten feet three

inches.

The Assistant Superintendent testified that he had never

visited the site before he revoked the permits. One of the reasons

he gave for revoking the permits was PHC’s placing an excessive

overburden on a Duquesne Light transmission. Yet he testified

that Duquesne Light informed him that they really weren’t

concerned with an excessive overburden.

When questioned about the alleged excessive overburden

on two City sewers and water lines, the Assistant Superintendent

acknowledged that he was aware that PHC had an agreement with

the Water Department to install new water lines but was generally

evasive when responding to questions how it would have been a

concern to the City since PHC agreed to install new water lines.

He further testified that he was unsure whether City inspectors or

complaints from adjoining property owners brought to his attention

that the sewer systems of the owners was being interfered with.

Although one of the reasons he gave for revoking the

permits was the landslides caused by PHC in the area, he testified

32a

that he was unaware that the area was landslide prone, and did not

deny that PHC might not have caused the landslides. He admitted

there was no verification in his files that PHC placed the hill in a

manner that would cause excessive drainage. Furthermore, he

acknowledged that before he revoked the permits, his project chief

was Satisfied that only a few minor conditions needed to be

satisfied on the parking lot.

Finally, the Assistant Superintendent agreed that he had no

written reports in his file from any Bureau of Building Inspection

employee regarding their personal observations of the conditions

on the site prior to his revocation letter of November 9, 1989.

Althouch he had previously testified that he had no recollection of

a study made by Three Rivers Diving, a private contractor for the

City, after examining his file he acknowledged that there was no

problem with the sewers. Daniel Feeney, a Senior Building

Inspector employed by the Bureau of Building Inspections, testified

that he visited the site many times, yet never recommended

revocation of the permits. Although the City asserted in the

revocation letter that a large portion of the parking space was

located on Boundary Street, PHC’s plot plan for the proposed

parking lot indicates that none of the area was on Boundary Street.

Based on all of the testimony, the Board has not met its

burden on this point and PHC has presented competent credible

evidence to prove all of the elements, both procedural and

substantive necessary to support its adjudication, Lawrence, Supra.

Furthermore, this Court has had the benefit of viewing the

property and observing Appellee’s witnesses who testified in a

very credible manner. Finally, PHC incurred considerable,

expenses in its attempt to satisfy the City.

Under Title 10, Section 1009.11 of the Pittsburgh Building

Code, the Chief of the Bureau of Building Inspection has the

authority to revoke a permit when he finds that the continuation of

work would create a dangerous condition or hazard to life or

property as follows:

"Whenever the work for which a permit has been issued

is not being performed in conformity with the plans,

ifications and descriptions filed with the application,

the Chief may suspend or revoke the permit in accordance

33a

with the procedures set forth in Section 1009.13. The

Chief may also suspend or revoke the permit when he

finds that the continuation of the work would create a

dangerous condition or hazard to life or property."

Although concerns existed regarding the sewers and water

lines, it is apparent that dangerous and hazardous conditions were

not created to the degree indicated by the City. See Thomas v.

Zonina Rearing Board, Pa. CMNWLTH, 349 A.2d 518 (1975).

Therefore, it is the opinion of this Court that the City’s

reliance upon Section 1009.11, to revoke the permits was

unjustified since the continuation of PHC to develop the parking

lot will not create a hazard to life or property. In short, the

evidence established that the revocation of the permits under

Section 1009.11 was unjustified.

For the above stated reasons, PHC’s statutory appeal is

granted. An appropriate order accompanies this Opinion.

34a

IN THE COURT OF COMMON PLEAS OF ALLEGHENY

COUNTY, PENNSYLVANIA CIVIL DIVISION

PANTHER HOLLOW CORPORATION,

Appellant,

CITY OF PITTSBURGH BOARD OF

STANDARDS AND APPEALS,

Appellee.

No. SA 3428-90

ORDER OF COURT

AND NOW, to-wit, this 7 day of July , 1992, it is

hereby ORDERED, ADJUDGED and DECREED that the

Appellant’s land operations permit, temporary certificate of

occupancy and application for a parking lot permit be reinstated.

By the Court

/S/Robert C. Gallo, J.

Robert C. Gallo, J.

35a

APPENDIX F

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

PANTHER HOLLOW CORPORATION

CITY OF PITTSBURGH, BOARD OF

STANDARDS AND APPEALS,

Appellant

No. 1550 C.D. 1992

ARGUED: December 14, 1992

BEFORE: HONORABLE MADALINE PALLADINO, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Judge

HONORABLE EMIL E. NARICK, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE NARICK

FILED: February 22, 1993

The City of Pittsburgh (City) appeals from an order of the Court

of Common Pleas of Allegheny that reversed the decision of the

City’s Board of Standards of the City’s Board of Standards and

Appeals (Board). The Board’s order upheld the revocation of

permits previously granted to Panther Hollow Corporation (PHC)

to build and operate a parking lot. We vacate and remand.

The City, through its various departments and bureaus

granted permits and certificates to PHC, including land operations

permit, a certificate of temporary occupancy and a parking lot

permit. A citizens group, Oakland Directions, Inc. (OD),

complained to the City, attempting to stop PHC’s land operations.

Shortly thereafter, on November 9, 1989, Dominic Cimino, the

Assistant Chief of the Bureau of Building Inspection, to build and

revoked all of PHC’s permits, listing nine reasons for the

revocation.

36a

PHC appealed the revocations to the Board. After hearing,

the Board affirmed the revocations in a written decision, dated

January 31, 1990. The Board’s order evidences a mailing date of

February 13, 1990. PHC, however, alleges that it never received

notice of the decision until November 9, 1990, when a hand-

delivered copy was presented to PHC’s counsel at a meeting with

various City officials. On November 27, 1990, PHC filed an

appeal to the trial court, requesting a trial de novo.

PHC, in a Motion for Allowance of Discovery, alleged

that the City had commingled prosecutorial and adjudicatory

functions, and had improperly placed the burden of proof on PHC

to show why the permits should not have been revoked. The City

moved for dismissal on grounds that PHC’s appeal was untimely

in that the appealls filing date exceeded the permissible appeal

period by more than eight months.

The Honorable Paul Zavarella heard oral argument on both

motions and, after reviewing the.record b efore the Board, found

the Board’s record to be incomplete. Judge Zavarella ordered

PHC’s appeal to be heard de novo before the Honorable Robert_

Gallo, and further held that initially the City had the burden of

proof to show that the permits were revoked for cause. Judge

Zavaralla did not address the timeliness issue in his order nor is a

transcript of any proceedings, concerning these motions, in the

record.

At the start of the trial presided over by Judge Gallo, the

City again raised the timeliness issue. PHC’s counsel argued that

Judge Zavarella had dispensed with this issue in chambers and that

by implication his order, providing for the de novo hearing,

subsumes the dismissal of the City’s objection on timeliness

grounds. Judge Gallo accepted this argument and denied the

City’s motion to dismiss. After the trial, which included a view

of the site, Judge Gallo ordered that PHC’s permits be reinstated

because the revocation was unjustified.

37a

On appeal', the City raised the following issues for

our review: (1) whether the trial court erred in failing to grant the

City’s Motion to Dismiss because PHC filed an untimely

appeal; (2) whether the trial court erred in holding that the City

had no justification to revoke PHC’s permits; (3) whether

substantial evidence supported the trial court’s finding of

unjustified revocation; and (4) whether the trial court erred in

placing the burden on the City to prove that it had just cause for

revoking PHC’s permits.

The City first argues that th e trial court did not have

jurisdiction to hear PHC’s appeal from the Board’s order because

PHC filed its appeal more than nine months after the Board

allegedly mailed the notice of its decision. The City maintains that

the Board’s written decision, dated January 31, 1990, was mailed

to PHC on February 13, 1990 and, therefore, PHC’s appeal had

to be filed within thirty days of the mailing date.

Sections 5571(b) and 5572 of the Judicial Code, 42 Pa.

C.S. §§5571(b) and 5572 provide that appeals from a government

unit to a court must be commenced within thirty days after entry

of the order and that the date of mailing shall be deemed to be the

date of entry. Moreover, the burden is on the governmental unit

to show when its decision was mailed. Hanna v. Zoning Boardof

Adjustment, 62 Pa. Commonwealth Ct. 620, 437 A.2d 115 (1981).

Additionally, the notice, to constitute competent evidence, must be

attested by the proper official. Groff v. Department_of

Transportation, Bureau__of _Traffic_ Safety, 78 Pa.

Commonwealth.Ct. 580, 467 A. 2d 1224 (1983). ~Also_see

In a case where the trial court takes additional evidence and

decides the case de novo, our scope of review is limited to a

determination of whether the trial court abused its discretion or

committed an error of law. Caporali_v.. Ward, 89

Pa.Commonweatlh Ct. 621, 493 A.2d 791 1985).

38a

Sections 6103,? 6104(a)’ and 6104(b)* of the Judicial Code, 42.

Pa. C.S. §§6103, 6104(a) and 6104(b).

The record certified to this Court does not contain the

transcript of the proceedings before Judge Zavarella. Thus, we do

not know whether the City had the opportunity to give evidence,

concerning the mailing date or, in fact, failed to prove that it

Section 6103 states in perinent part that:

(a) General rule.--An official record kept within this

Commonwealth by any... goverment unit, or entry therein, when

admissible for any purpose, amy be evidenced...by a copy attested

by and accompanied by a certificate that the officer has the

custody. The certificate may be made by any public officer having

a seal of office and having official duties with respect to the

government unit in which the record is kept, authenticated by the

seal of his office,...

Section 6104(a) General rule.--A copy of a record of government

action or inaction authenticated as provided in section 6103

(relating to proof of official records) shall be admissable as

evidence that the governmental action or inaction disclosed therein

was in fact taken or omitted.

Section 6104(b) states:

(b) Existence of facts.-A copy of a record

wuthenticated as provided in section 6103 disclsoing the existence

or nonexistence of facts which have been recorded pursuant to an

official duty or would have been so recorded had the facts existed

shall be admissable as evidence of the existence or nonexistence of

such facts, unless the sources of information or other

circumstances indicate lack of trustworthiness.

39a is

mailed the notice.’ We also do not know what evidence PHC

presented, if any, to rebut the presumption of the regularity of

administrative acts of public officials. See Mihordin v.

Unemployment Compensation Board of Review, 80 Pa.

Commonwealth Ct. 569, 471 A.2d 1334 (1984); and Groff.

Furthermore, because the City has the burden to prove that it

mailed the notice of its decision to PH C, we cannot simply

assume notice was mailed, nor can we assume that the copy of the

notice in the record is competent evidence, without the officer

having custody of the original notice, attesting t’o the copy’s

authenticity.

Without a specific finding setting forth a determination that

the City either mailed the notice of the Board’s decision on

February 13, 1990, or hand-delivered it on November 9, 1990, we

cannot conclude whether PHC filed an untimely appeal. Because

a decision on this issue concerns whether the trial court had

jurisdiction to hear the case on the merits and in turn whether this

Court has jurisdiction, we will not consider the other issues

presented.

Accordingly, we vacate and remand to the trial court for

specific findings relating to the timeliness of PHC’s appeal.

/s/ Emil E. Narick A

Emil E. Narick, Senior Judge

Judge Pellegrini did not participate

in the decision in this case.

The deposting of a properly addressed prepaid letter into the mails

raises the presumption that it reaches its destination. The mailing

is prima facie evidence of receipt, and mere denial of receipt is

insufficient to rebut the presumption. Moore v. Department of

Public Welfare, 129 Pa. Commonwealth Ct. 19, 564 A.2d 555

(1989).

40a

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

PANTHER HOLLOW CORPORATION

CITY OF PITTSBURGH, BOARD OF

STANDARDS AND APPEALS,

Appellant

No. 1550 C.D. 1992

ORDER

AND NOW, this 22nd day of February, 1993, the order

of the Court of Common Pleas of Allegheny County, dated July 7,

1992, is vacated and the record is remanded for further

proceedings not inconsistent with the foregoing opinion.

Jurisdiction relinquished.

/s/ Emil E. Narick

Emil E. Narick, Senior Judge

CERTIFIED FROM THE RECORD

AND ORDER EXIT

Feb 22 1993

/s/ C.R. Hostutler

Deputy Prothonotary - Chief Clerk

4la

APPENDIX G

CITY OF PITTSBURGH

PENNSYLVANIA

BOARD OF STANDARDS AND APPEALS

This Order of the Board was mailed to:

P. t Hollow ion

on February 13, 1990

Case #3 - 1990

January 31, 1990

BOARD E

Bernard Liff, FAIA

Eugene V. Dotter, P.E.

Paul J. Imhoff, Chief, B.B.I.

Ann Maria Guzman, R.A.

Arthur C. Schock, P.E.

LOCATION: Boundry Street Ward 4

~APPELLANT: Panther Hollow Corporation

3810 Crooked Run Road

N. Versailles, PA 15137

DATE OF HEARING: January 16, 1990

PRESENT AT HEARING: Messrs. Liff, Dotter, Schock,

Cizino and Mrs. Guzman. Board Members: Ronald Graziano

and Robert Friel, Advisors.

IN OPPOSITION: Oakland Directions,Inc. (Community

Group)

SUBJECT: Requested reinstatement of the Land Operations

Permit and the Temporary Certificate of Occupancy which were

42a.

revoked by the Bureau of Building Inspection on November 9,

1989.

DECISION: The request for reinstatement of the Land

Operations Permit and the Temporary Certificate of Occupancy is

denied.

FOR THE BOARD OF STANDARDS AND APPEALS

/s/ Dominick J. Cimino

Dominick J. Cimino

43a

APPENDIX H

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 96-3242

No. 96-3267

SOL GROSS, an individual and

PANTHER HOLLOW CORPORATION,

Appellees,

Vs.

THE CITY OF PITTSBURGH,

Appellant.

(W.D. Pa. C.A. 91-1895)

PETITION FOR REHEARING

Appeal from judgment of the United States District Court for the Western

District of Pennsylvania in favor of Panther Hollow Corporation dated

March 25, 1996

Maurice A. Nernberg

Pa. I.D. No. 00127

MAURICE A. NERNBERG & ASSOCIATES

301 Smithfield Street

Pittsburgh, PA 15222-2277

(412) 232-0334

Firm No. 331

Counsel for Appellees

44a

PETITION FOR REHEARING

Petitioner, Panther Hollow Corporation (PHC) and Sol Gross

(Gross) request consideration of this Petition by the Panel and the Court

in banc.

I. THE PANEL SHOULD NOT HAVE GRANTED A NEW

TRIAL BASED ON THE LACK OF SUFFICIENCY OF THE

EVIDENCE.

By a decision filed on March 14, 1997, a three member panel of

this Court granted the City of Pittsburgh a new trial despite the City’s

failure to move for a new trial or judgment n.o.v. following the

presentation of all evidence. The Panel’s decision is inconsistent with the

decisions of this Court. A copy of the Panel’s Opinion is attached hereto

as Exhibit

A. PHC and Gross raised the issue of the requirement of a motion

following the presentation of all evidence as it applied to the City’s

request for a judgment as a matter of law. [Consol. Cross Appeal and

Reply Br. at 33.] As the Panel correctly stated, PHC-and Gross cited

Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir. 1995) for the standard of

review. However, they did not cite, Yohannon v. Keene Corp., 924

F.2d 1244 (3d Cir. 1991) - a contrary case holding that a court may not

consider a motion for a new trial if no such request was made after the

presentation of all evidence.

The Panel, without citing any authority, held that the failure to reference

the Yohannon limitation, waived the objection. That is in error. In

Yohannon, the Yohannons did not object on the basis of the need for a

motion for new trial after the close of all the evidence, only arguing, as

we did, that the lack of such a motion prevented entry of judgment n.o.v:

The Yohannons contend in their brief, see Brief for

Appellees at 26, that Raymark waived the right to

judgment n.o.v. when it failed to renew its motion for a

directed verdict at the close of all the evidence. In its

reply brief, the Company [Raymark] limited the relief

45a

requested to a new trial and disclaimed any hope for a

judgment n.0o.v.

The full nature of this procedural problem, however, still

escapes Raymark. The Yohannons, although they argue

waiver, also fail to see the precise nature of this problem

as it relates to sufficiency of the evidence (citations

omitted).

On sufficiency, the failure to move for a directed verdict

at the close of all evidence does more than limit an

aggrieved party’s remedy to a new trial. In this Circuit,

it wholly waives the right to mount any post-trial attack on

the sufficiency of the evidence (citations omitted).

Id. at 1261-62. The Yohannon court cited Gebhardt v. Wilson Freight

Forwarding Company, 348 F.2d 129 (3rd Cir. 1965) for the proposition

that failure to move for a directed verdict at the close of all evidence

“totally forecloses any consideration of sufficiency questions in the

absence of a proper motion for a directed verdict" Id. at 1262. “Gebhardt

remains the law of this circuit unless overruled in banc (footnote and

citations omitted)" Id. at 1263. In O’Hommel Co. v. Ferro Corp., 659

F.2d 340 (3rd Cir. 1981), the Court held that a panel cannot overrule a

prior panel precedent — which is what the Panel is doing here, under the

guise of the need for an objection.

In a case involving a motion for judgment n.o.v., Beebe v.

Highland Tank and Manufacturing Company, 373 F.2d 886 (3d Cir.

1967), this Court explained that the rule is a limitation on the power of

the court:

And judicial power exists under rule 50(b) to grant

judgment notwithstanding the verdict only when a motion

for a directed verdict has been made at the conclusion of

all evidence, and, in legal contemplation, the questions

thus raised have been reserved for subsequent

determination. We have repeatedly held, very recently, in

Gebhardt v. Wi'son Freight Forwarding Co., Supra, “that

46a

’ =

the introduction of evidence after the denial of a motion

for a directed verdict constitutes a waiver of the error, if

any, in the denial unless the motion is renewed at the close

of all of the evidence.’ We adhere to that ruling.

While it is not our choice whether to adhere to the ruling, it is

clear in Yohannon, that the Appellee did not raise the waiver issue, the

court did. Moreover, the Beebe and Yohannon cases, along with

Gebhardt, make clear that the rule requiring a motion at the close of the

evidence involves the power of the court. The parties cannot confer

jurisdiction to the court. Beach v. KDI Corp., 490 F.2d 1312 (3d Cir.

1974)(parties can not create pendent jurisdiction by agreement); Smith v.

Spina, 477 F.2d 1140 (3d Cir. 1973)(parties can not create subject

jurisdiction by agreement.) The limitation on the court’s powers is not

En ee

1S1 S | ia. 536

F.2d 9 (3d Cir. 150, Go emmdhnannd he ateadeataaete, citing

5A Moore’s Federal Practice, §50.08, to the effect that to ask the court

to reexamine the general jury verdict when there has been no motion for

a directed verdict, would be violative of the 7th Amendment. See,

Consol. Cross Appeal and Reply Br. at 4, 33 (7th Amend. cited).

Having put in evidence after its motion for judgment was denied, the City

waived any prior error, Lowenstein, at 11.

Il. THE PANEL WAS IN ERROR IN NOT AWARDING

SOL GROSS NOMINAL DAMAGES AS A RESULT OF THE CITY’S

VIOLATION OF HIS CIVIL RIGHTS.

In this trial, with bifurcated damage and liability verdicts, the jury

found that the City violated Gross’ civil rights. However, it awarded him

no damages. Immediately following the verdict on damages, before the

jury was excused, Gross asked for the issue of nominal damages to be

considered. [Consol. Cross Appeal and Reply Br. at 3.]

The Panel held that the violation of Gross’ rights was inconsequential

therefore, the verdict was not flawed for not awarding damages.

suggested that Gross should have asked for binding instructions if

47a

believed that he was entitled to damages. While we disagree with the

characterization of this Panel’s term “inconsequential” in light of the

other indignities suffered by Gross (such as having had to pay a mortgage

at $10,000 monthly from 1989 through 1997, despite the City “taking”

the property “as of” December 1, 1989 in March of 1996), that is not

relevant. In Carey v. Piphus, 435 U.S. 247 (1978) the Supreme Court

held that:

Because the right to procedural due process is ‘absolute’

in the sense that it does not depend upon the merits of a

claimant’s substantive assertions, and because of the

importance to organized society that procedural due

process be observed... (citations omitted) we believe that

the denial of procedural due process should be actionable

for nominal damages without proof of actual injury.

(footmote omitted).

The Panel supported its conclusion by stating that:

We would not remand for the entry of an award of any

damages; it is possible that the jury reached a compromise

verdict when it resolved the liability issue in favor of

Gross, as it may at that time have intended not to award

any damages following the finding on liability. Thus, the

most relief Gross could obtain would be a new trial on

The Panel’s analysis is flawed.

The Panel compared the situation here with that in Stanton v.

Astra Pharm. Prods., Inc., 718 F.2d 553 (3d Cir. 1983). Stanton was not

a bifurcated verdict. After a trial, the law changed as to damages, and

the district court ordered a retrial for damages. On appeal, this Court

held that the original award may have been a compromise and therefore,

the defendant was entitled to a whole new trial. Gross’ situation is not

analogous.

48a

The Panel determined that the failure to request a binding

instruction on this issue was fatal, but cites no authority therefore. That

is because there is no such authority. The verdict was inconsistent with

the liability finding and should have been ameliorated.

Ill. THE PANEL ERRONEOUSLY CONCLUDED THAT

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE

VERDICT.

Despite giving lip service to having considered the record in a

light most favorable to PHC and Gross, the Panel erroneously concluded

numerous matters favorably to the City, even though there was significant

contrary evidence.

The Panel states: "Ace completed the work on June 15, 1989, and

at that time ... commenced substantial land operations on the property

without applying for a required permit." [Op. at 3.]

Anthony G. Berardi, the heavy equipment operator for PHC,

testified that until being stopped by the police in July, he graded the

debris that had been dumped on the site over the years but did not do any

excavation. His work was under the direction of the BBI inspector.

[App. 1306-8.] Gross testified that his work, until July, consisted of clean

up work and not land operations. [App. 1297.]

The Panel states that: “In its application, Panther Hollow

misrepresented that the property was not in a landslide prone area.” [Op.

at 3.] However, the application was filled in by representatives of the

City Planning Department (Mr. Brown). PHC’s Mr. Gross did not even

have access to the zoning map, Mr. Brown did. [App. 1459.] This

testimony was not contradicted.

The Panel states that: “On or about July 20, 1989 ... the City

learned that Panther Hollow was causing hauling of fill onto the property

without a permit.” [Op. at 4.] In fact, PHC had a permit to haul fill onto

the site. It was the hauler who did not have a permit. And, although the

City authorized PHC to install fill on its site, it would not authorize the

hauler to bring it in.

The Panel states that in its permit application, PHC represented

that a special inspector would be employed to report to the City.

“However, the special inspector made no inspections and filed no reports

‘49a

...." [Op. at 4.] This conclusion is unwarranted. Imhoff (the BBI

Superintendent at the time), who had authority to waive the requirement

of a special inspector, testified that it was not necessary to have a special

inspector on such a simple project. [App. 2871, 2932.]

The Panel states that: “Panther Hollow refused to clean up the

discharge", referencing the discharge from sewage systems from

adjoining landowners that the Panel describes as "damaged". [Op. at 4.]

In fact, the system was not “damaged” and PHC had nothing to do with

it. [App. 1219, 1310-11, 1435, 1490.] It was simply not functioning and

had never functioned. [App. 3146, 2962, 3176, 3198, 406-409, 554-557,

2949, 769-770.] PHC had no responsibility to remediate the neighbor’s

discharge. Apparently, the sewage had leaked for years. It just was not

noticeable until PHC cleaned up the area. It is in issues such as this that

the jury could well have found the City’s actions pretextual, given that

despite overwhelming evidence that PHC was not responsible for the

discharge, the City misrepresented the issue. It is only surprising that the

Panel took up the City position. It could not have reviewed all of the

testimony and concluded as it did.

The Panel states that: "The County inspection further determined

that Panther Hollow was creating an excessive overburden on the

property and was otherwise in violation of County and state statutes and

regulations.” {Op. at 5.] First, the overburden was not caused by PHC

bringing in fill. Rather, it resulted from the cleanup operations, which

were directed by the City (total fill brought to the site was about 70-75

yards, which equates to about 1/2" of overburden over the 28 acre site).

[App. 1310.] Second, the overburden was not a problem, just a pretext.

It was not nearly as deep as misrepresented by the City (11’ versus 20°

and caused no damage). [App. 3137, 3176, 3193.] Lastly, PHC did

comply with the state laws. It installed haybales to prevent runoff. And,

as Imhoff said, if there was a County violation, it would not be the basis

for the City’s revocation. How could PHC dispute a revocation by the

City for a County violation? City could not adjudicate a County citation.

Does the Panel seriously suggest that the City has the authority to revoke

a validly issued permit on the basis of the laws of another jurisdiction?

The Panel stated that, “the Director of the City Water Department

was concerned that Panther Hollow had buried a City water line under

an excessive amount of fill” and, though it agreed to relocate the line, it

“took no actions to effectuate the relocation." [Op. at 6.] Here, the Panel

disregards the uncontroverted evidence that PHC and the City agreed that

the water line would not be relocated until the spring of 1990. [App.

3154.] The permit was revoked on November 9, 1989. In fact, PHC was

required, at its own expense, to put in a larger line than had been on site.

[App. at 981.] PHC had authorization from Public Works to install the

fill over the water line, Public Works not being aware of the existence of

the line. The line apparently not being registered with Pennsylvania One

Call, in violation of the law. [App. 954, 1417, 1440.] The manholes

would rise with the water line.

In fact, the latter item is evidence of the pretextual nature of the

City’s complaints. If the overburden was so important and access to the

water line was critical, (1) why did the City revoke the permits before

PHC could replace the water line and, (2) why did the City install Jersey

barriers to prevent access to the site by emergency vehicles?

Astoundingly, the Panel then states that: “Although a meeting was

held on September 21, 1989, in an attempt to resolve the dispute between

Panther Hollow and the City, the parties did not reach a resolution.”

[Op. at 6-7.] No one disputed that a resolution had been reached. [App.

789, 1455.] The City called other attendees of the meeting as witnesses,

but they were not asked about the meeting. The proof of the foregoing

is that following the meeting, PHC completed the parking lot without

interference by the City. The permits were revoked after the parking lot

and land operations work were completed. The real issue is that the

occupancy permit for a parking lot was revoked, preventing its use after

completion.

This Panel then states that the temporary occupancy permit issued

to PHC on October 20, 1989 carried the signature of the chief of BBI,

although it should have had the signature of the senior inspector. [Op. at

7.] Although the significance of that is lost on the writer, any concern

should have been alleviated when the senior inspector wrote to PHC and

set out two minor conditions to opening the parking lot. [App. 3153.]

This Panel states that on October 23, 1994, a representative of

County health regulations -- and also found that PHC had moved more

than 16,000 c.y. of material requiring a conditional use application. [Op.

at 7.]}

Sla

This is the most nefarious of all of the City’s pretextual arguments

for revoking the permits. In fact, it was this claim, often repeated and

constantly disproved, that the City used as a pretext to move PHC’s

permitting into the political arena. This issue was at the heart of PHC’s

claim that the City’s sole purpose in making this blatantly false argument,

was to satisfy the residents that no parking lot would be constructed.’

Only if 16,000 c.y of earth were moved, would the issuance of a permit

become discretionary. Berardi, who performed the work and maintained

a logbook, calculated only 8380 cubic yards of material moved. [App.

3974.] Then, PHC presented an expert witness, Whittaker, of

unquestioned credentials as to how to compute the earth movement.

[App. 1179.]

The City tried to rebut that testimony with an unqualified “expert”

whose credibility was impeached. PHC presented witnesses that proved

his testimony was false. [App. 1983, 2159, 2166, 2177, 3180.] Lastly,

the City’s own expert testified that 16,000 yards were not moved, his

calculations being consistent with those of PHC’s engineer. [App. 1162.]

As to the City Planning representative (Sentz), the inflammatory

memorandum he prepared, combined with his guessing at the earth

movement over a site he did not see before the earth was moved and

considering the obvious hostility of the Planning Department, who on

The record is replete with proof that more than 16,000 yards of

earth were not moved and that it was proven the City was aware

of this. See, Consol. Cross Appeal Br. at 10, 12, 15; App. 1162 -

Easton Test.; App. 1303 - Berardi Test.; Judge Gallo Op. The

proof of the City’s intentions is replete within the record. [Consol.

Cross Appeal Br. at 14, 15.] Moreover, the revocation of the

permits came after the parking lot was completed, after all land

operations were completed, but within days of the proposed

opening of the parking lot. Lastly, after the verdict in favor of

PHC on liability and after the Court indicated its permits would be

returned, the City, seven years after denying it took the property

by inverse condemnation, reversed its stand and admitted that it

had taken the property seven years before.

52a

occasion wanted to control the development of the property, was accused

by Imhoff of holding up projects for its own purposes and evinced anger

that PHC even acquired the property, it is easy to see why the jury

accorded no credibility to it. [App. 798-803.] In fact, its director, who

attended the alleged meeting during which revocation was agreed upon,

gave a different reason for revocation, i.e. the pressure of the

community. [App. 782-787.] In fact, the later acquisition of the property

by the City evidences that the City desired the property. It just did not

want to have to pay for it. When it saw it lost the verdict, it then

accepted the property to avoid damages.? This panel seems to give

credence to the off hand estimate by Sentz, who made no engineering

calculations in spite of the overwhelming expert testimony and prior

holding, that 16,000 c.y. were not moved.

Aside from the items discussed above, the only other item

mentioned by the Panel as a basis of revocation, was lack of a storm

water management system. [Op. at 7.] However, there was a system in

place and the area did not require a system at this time. This was

recognized by the City’s own engineer. [App. 3170.]

This Panel stated that after the meeting, Sentz concluded that all

permits should be revoked. All of Sentz’ conclusions were discredited

(they are discussed above). Moreover, as discussed above, Sentz’s

objectivity could easily have been questioned by the jury.

During oral argument, counsel for the City suggested the last

minute acquisition was due to a change in administration.

However, Mayor Murphy had been the Mayor during at least two

years before the March 8 admission. Apparently, as long as PHC

had to pay the mortgage, the City expected to obtain the property

at a distressed price. When it learned the jury ruled in PHC’s

favor and the judge was going to charge on damages, it thought it

could avoid the damages by acknowledging that which it had

denied for seven years, that it had taken the property.

53a

The Panel went on to say:

On November 6, 1989, City Officials from the various

departments involved in the matter met to discuss

revocation of the permits. At the end of the discussion,

they reached a consensus and all present agreed that the

permits should be revoked.

[Op. at 8-9.] This is one of the areas in which we expect the jury found

pretext. No one who attended the meeting was able to testify as to any

specifics of the meeting or what happened. They all used the word

“consensus”.

The closest to specificity was the Mayor’s secretary, Joseph

Sabino Mistick. He testified his concern (he did not testify that this was

discussed at the meeting, it seemed to be a private concern) arose from

his experience as a volunteer fire fighter. He was concerned that the fire

engines could not access the property in an emergency. This theory was

refuted when the City installed the Jersey barriers to prevent all access

to the area. [App. 1708.] Thus, what might have been difficult, became

impossible. The passages cited from the meeting were all debunked

during trial. [Op. at 9.] The “excessive overburden" was resolved by the

agreement with the Water Department with PHC to install a new line

during the following year. The “overburden” on the Duquesne Light line

had been resolved months before, and it was known to City personnel.

Lastly, the operations of PHC did not cause the landslides. The City

acknowledged this. [App. 3127, 3061, 3083, 3109, 3455, 3176, 3198.]

In fact, PHC’s operations stabilized the hillside.

The Panel states that at the community group meeting held on

November 9, 1989, the City informed the residents that PHC’s permits

would not be reinstated until “he submitted a plan to correct the

landslide, drainage, and utility problems and complied with other

documentation procedures required by the City." [Op. at 9.] However,

these issues had already been resolved. The plot plan PHC submitted

was sufficient as the initial documentation until other information was

requested. No additional information was requested until after the

permits were revoked. The sewage problem was not only not of PHC’s

making, but it was for the City to remediate. Lastly, the landslide was

not caused by PHC’s work. In fact, there were no further landslides

54a

after the City corrected the runoff from its own road and ordered the

neighbor on top of the hill to stop dumping.

The Panel then made a hyper-technical interpretation of the

Geomechanics letter, to the effect that the use of the words “dangerous

and hazardous conditions have not been created to the degree indicated

by the city of Pittsburgh" meant Geomechanics found fault with PHC’s

work. However, the body of the letter and the documents make it clear

that Geomechanics did not find fault with PHC’s operations or that they

created any hazardous or dangerous conditions. In fact, PHC removed

the hazardous condition, large quantities of junk and debris. [Apn. 1496.]

The Panel stated that the case in Commonwealth Court “became

moot when the City placed barriers around a portion of the property."

[Op. at 10]. That was not true. The case became moot when, seven

years after denying that the City took PHC’s property, it admitted it

when it thought this admission would reduce the damages to be paid.

The case was mooted when the City admitted ownership.

We have difficulty seeing how the Panel could hold there was not

sufficient evidence to support the verdict. Apparently, the Panel believed

that damages would only apply to the twenty-one day period from the

revocation to (November 9) the admission of the taking (December 1,

1989), minimizing the seriousness of PHC’s claim. However, even

though there is a fiction of taking that relates back under state law, PHC

did have to pay taxes and interest to protect the property through March

Interestingly, the City, in the proceeding now pending before the

Board of Viewers for the determination of damages for the taking,

is NOW arguing that it did not have possession of the property until

some much later date than December 1, 1989, arguing that

damages for delay (interest) do not accrue until sometime in 1993

or 1994, leaving this case with a possible claim for four years. The

City has constantly taken contrary positions -- the basis for the

Motion to Dismiss Appeal and for Sanctions. That motion was not

based on the inadequacy of the City brief as indicated by the

Court, but on the misrepresentation during the trial, and the

subsequent admission as reflected in the state proceedings.

55a

of 1996. Until February of 1997, it paid over $800,000 in interest to

prevent foreclosure. No taxes were paid, but only because of an order

preventing a sale for unpaid taxes. In fact, the taxes outstanding, with

interest and penalties, exceeded $500,000. This was not an eminent

domain loss, but a due process loss, the loss of the right to use of the

property, despite the fiction of City ownership "as of December 1,

1989." The Panel should not make fiction fact.

The Panel seemed to focus on two issues, one of which was not

raised by the parties.

The jury had several considerations that could lead it to believe

the City action was pretextual. First, the meeting of September 21

seemingly resolved all legitimate issues between PHC and the City.

However the area residents still complained that they did not want a

parking lot in the area. Second, the City waited until all the work was

finished before revoking the permits, permitting PHC to work from

September 21 until November 9, 1989. As of November 1, 1989, the

City issued PHC all requisite permits for use of the parking lot. All that

remained for PHC to do (as instructed by the City, App. 3153) was fence

in the area and install a barrier around the fire hydrant (which would

have rendered it inaccessible) in order for the lot to be operable. How

did revoking land operations permits solve anything? It was unnecessary,

as all of the work had been completed. It was the occupancy permit that

was important to PHC. The City took no remedial action to the areas it

deemed so significant. It did nothing about the landslide. It did nothing

about the erosion and sedimentation. It did nothing to remove the fill

that it claimed was a problem. It did not install the new water line,

uncover the manholes or remove the “overburden”. It has not done so

in the year since it acknowledged ownership of the property. The jury

may not have known about the last year, but they saw the property at the

start of the trial (a view of the site was taken) and could see that nothing

changed since November 9, 1989. If the "overburden" and the fill and

the access, etc. were all such problems, why did the City do nothing

about them? What the jury saw was more convincing than all of the

testimony. The parking lot was complete and unused and nothing had

been done in over six years to ameliorate what the City and the Panel

reference as "dangerous and hazardous" conditions. It was simple for the

jury to conclude that those conditions were not only obviously neither

56a

dangerous nor hazardous, but if they were, they were not sufficiently so

for the City to do or order anything done to ameliorate them.

Further, on numerous occasions, the City chose to meet with

Gross on behalf of PHC, and as reflected in the September 21, 1989

meeting, obtain information and expert advice, such as from

Geomechanics and Deglau. However, the "consensus" meeting attended

by the City department heads not only failed to invite Gross, it also did

not include any experts, nor were minutes maintained (there was a

reference to minutes, but they were never found). Certainly, the jury

could find that this clandestine meeting, coupled with the lack of any

person’s recollection of anything specific occurring at the meeting, other

than a "consensus", could reflect the sinister purposes previously

discussed -- that the City desired to control the property and would not

permit a parking lot to be operated there, despite PHC having all of the

permits and meeting the objective requirements therefor. This was not

rationally related to a legitimate government interest. This was the

improper motive referenced by this Court in Parkway Garage, Inc. v.

City of Philadelphia, 5 F.3d 685 (3d Cir. 1993).

While the Panel discussed collateral estoppel in conjunction with

the state court’s reinstatement of the permits, it did not discuss the effect

of the judicial admissions resulting from the withdrawal of the

preliminary objections in the state eminent domain case. While the Panel

may distinguish the state findings concerning the permit reinstatement

from a civil

rights’ case requirements, the underlying facts admitted by the withdrawal

of the preliminary objections cannot be lightly dismissed.

It seems as though the Panel has permitted its opinion to reflect

the arguments of the City, that were rejected by the jury.

The Panel noted the possible applicability of Williamson County

Reg’] Plannin mm’n v. ilton Bank, 473 U.S. 172 (1985) and

Littlefield v. City of Afton, 785 F.2d 596 (8th Cir. 1986). As we

stressed during oral argument, Villager Pond, Inc. v. Town of Darien,

56 F.3d 375 (2d Cir. 1995) made clear that the taking doctrine of

Williamson did not apply to a due process case. And, as indicated in

Miller n Paving, Inc. v. Pl Twp., buc ; se Pe.

Cmmwith._, 680 A.2d 5 (1996), the requirement of a favorable decision

on the permit issue as a precondition to a taking claim, would rule out

57a

the applicability of Williamson, even if this was a taking case. It was not.

The claim was for due process violations. It was only on March 8, 1996,

after the trial of the case, that taking became an issue.

The foregoing argument consumed most of this counsel’s attention

during oral argument and thus, we were unable to explore the fact issues,

although the Panel initially informed us that would be the subject for

argument.

In addition, the Panel seemed concerned that there could be a

double recovery, for the civil rights case and for the eminent domain

case. However, the damages in the civil rights case are not necessarily

the same as in eminent domain. In the civil rights case, we claim loss of

revenue as the measure of damages. In the eminent domain case, it is the

value of the property plus detention damages, which are akin to interest.

Moreover, the City is seeking to deny even a single recovery, by

asserting in other proceedings, contrary to the admission there and here,

that the City did not have possession of the property in 1989. In any

event, the state courts have the power to prevent a double recovery.

58a

CERTIFICATION

I express a belief, based on a reasoned and studied professional

judgment, that the Panel’s decision is contrary to decisions of the United

States Court of Appeals for the Third Circuit or the Supreme Court of the

Untied States, and that consideration by the full court is necessary to

secure and maintain uniformity of decisions in this Court, to wit, the

- Panel’s decision is contrary to the decision of this Court in Gebhardt, v.

Wilson Freight Forwarding Company, 348 F.2d 130 (3d Cir. 1965);

Yohannon v. Keene Corporation, 924 F.2d 1255 (3d Cir. 1991); Beebe

v. Highland Tank and Manufacturing Company, 373 F.2d 886 (3rd Cir.

1997); Wilks v. Reyes, 5 F.3d 412 (9th Cir. 1993); Carey v. Piphus, 435

U.S. 247 (1978); Beach v. KDI Corp., 490 F.2d 1312 (3d Cir. 1974);

Smith v. Spina, 477 F.2d 1140 (3d Cir. 1973); and Parkway Garage,

Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir. 1993).

Respectfully submitted,

MAURICE A. NERNBERG & ASSOCIATES

By: _/S/Maurice A. Nernberg

Maurice A. Nernberg

59a

CERTIFICATE OF SERVICE

I, Maurice A. Nernberg, hereby certify that two (2) true and

correct copies of the within Petition for Rehearing was served upon all

parties to the within matter, by first-class, postage paid mail.

George R. Specter, Esquire

City of Pittsburgh

Department of Law

313 City-County Building

Pittsburgh, PA 15219

Date: /S/Maurice A. Nernberg

Maurice A. Nernberg

60a

APPENDIX I

12109c.ap2

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 96-3242

No. 96-3267

SOL GROSS, an individual, and

PANTHER HOLLOW CORPORATION,

Appellees,

Vs.

THE CITY OF PITTSBURGH,

Appellant.

(W.D. Pa. C.A. 91-1895)

MOTION TO DISMISS APPEAL AND FOR SANCTIONS

Appeal from Judgment of the United States

District Court for the Western District of

Pennsylvania in favor of Panther Hollow

Corporation dated March 25, 1996

Maurice A. Nernberg

Pa. I.D. No. 00127

MAURICE A. NERNBERG &

ASSOCIATES

301 Smithfield Street

Pittsburgh, PA 15222-2277

(412) 232-0334

Firm No. 331

Counsel for Appellees

6la

ARGUMENT

AND NOW, come the Appellees, Sol Gross, an individual, and

Panther Hollow Corporation, by and through their attorneys, Maurice A.

Nernberg & Associates and file the within Motion to Dismiss Appeal and

for Sanctions:

I. FRAUD UPON THE COURT

l. We make this motion only after much consideration.

However, we believe the conduct of the City of Pittsburgh (hereinafter,

"City") sufficiently egregious to ask the Court to consider this motion.

This Court has authority under L.A.R. 27.4 and 107.2 to entertain this

motion. See also Benites v. Hampton, 123 U.S. 524 (1887); Keely _v.

Ophir Hill Consol. Min. Co., 169 F. 601 (8th Cir. 1909); Wegner v.

Bobbitt, 263 F.2d 480 (D.C. Cir. 1920); Fink v. Continental Foundry &

Machine Co., 240 F.2d 369 (7th Cir. 1957); Kremer v. Clarke, 285 F.2d

735 (6th Cir. 1960); Smith v. U.S., 368 F.2d 683 (3rd Cir. 1966); Cyc.

Fed. Prac. §63.50 et seq..

2. The City Brief refers to an Eminent Domain case

(sometimes referenced as a Petition for Appointment of Board of View)

at pages 4, 8 and 11, pending in the state court. That case is concluded,

except for the assessment of damages.

3. The record contains the petition for the appointment of

a board of view as Exhibit "B" to the “Brief of the Defendants, City of

Pittsburgh, Mary Conturo, Dominic Cimino, Jane Downing, Maureen A.

Hogan, Fred Reginella, Bernard Liff, Eugene V. Dotter, Anna Marie

Guzman, Arthur C. Shock, The Board of Standards and Appeals and

George Fisher in support of Motion to Dismiss, Motion for More

Definite Statement, Motion to Strike and Motion to Abstain" entitled

"Petition for Appointment of View Pursuant to 26 Pa.C.S.A. §1-502(e)"

(hereinafter, "Petition"). A copy is appended hereto as Attachment A.

4. The Petition was filed on February 26, 1990, and alleged

the following facts:

6. On or about December 1, 1989, the CITY placed

concrete barriers across both means of access to Panther

62a

Hollow Corporation’s property. The aforesaid barriers

were placed directly on the property of Panther Hollow

Corporation, without its permission, and without any

prior notice to Panther Hollow Corporation.

7. The aforesaid placing of the barriers by the CITY has

completely deprived Panther Hollow Corporation of

access to its property, and has seriously interfered with

Panther Hollow Corporation’s plans for future

development of the property. The placing of such

barriers constitutes part of a concerted effort by the

CITY to gain control of the property and to prevent its

use by Panther Hollow Corporation.

8. In addition to placing of the barriers, the CITY has

also improperly refused to permit Panther Hollow

Corporation to use and develop the property. Thus, the

CITY has improperly failed to issue permits for the use

of the property and has harassed Panther Hollow

Corporation by improperly revoking permits which were

lawfully issued.

9. In addition, the CITY has dumped debris on the

property and has used the property as a waste site. The

CITY has also permitted neighboring property owners to

illegally discharge sewage onto Petitioner’s property and

has refused to correct the situation.’

' Three issues were rendered moot by the verdict. The Court

proposed serial verdicts if the "permit revocation" issue was

decided adverse to PHC (see Appellant’s brief, page 4). First, the

"jersey barrier" issue. Second, that the City threatened to arrest

Mr.Gross and any workman found working after the permit was

revoked, despite there being no ordinance to permit arrest (see

Exhibit 77, A-3176). Under the ordinance, PHC was permitted to

continue work despite the revocation, Title 10, Chapter 1007,

63a

_ LE

a a ee ee

The foregoing are similar to the allegations in this case, Complaint, A-

31-49.

5. As the City Brief states, the City filed preliminary

objections to the Petition. The preliminary objections appear with the

Appendix to Brief to Motions for Summary Judgment and a copy is

appended hereto as Attachment B. The preliminary objections generally

denied the allegations of the Petition.

6. The complaint in this case was filed on November 4,

1991.

; On March 8, 1996 at about 4:00 P.M. on the Friday

before the expected charge and closing on damages, following eight

weeks of trial, the verdict on liability, the taking of testimony on the

issue of damages and numerous conferences with the court over the issue

of damages, the City withdrew the preliminary objections.

8. A short analysis of Pennsylvania Eminent Domain law is

in order, to explain the effect of the withdrawal of the preliminary

objections:

a. Under Pennsylvania law (26 Pa.C.S.A. §1-101,

et seq.), a de jure condemnation occurs with the filing of

a declaration of condemnation by a governmental

authority. If, however, the government so restricts the

use or effectively takes the property without a declaration

of taking, it is a de facto taking but is governed by the

Eminent Domain Code, (26 Pa.C.S.A. §502(e);

Millcreek Township _v. N.E.A. Cross Co., 152 Pa.

Cmwith. 576, 620 A.2d 558 (1993), pet. for all. of

appeal denied, 537 Pa. 655, 644 A.2d 739 (1994),

although the procedure is different. The procedure is

established by case law and cannot be simply gleaned

from the statute.

b. To assert a de facto condemnation claim, a

§1007.2, subsection 124.11 of the City Ordinances (this was not

reproduced). Third, that the hearing before the Board of Standards

and Appeals was violative of Petitioner’s right to due process.

64a

petitioner must file a petition for appointment of view

which sets forth the facts that the petitioner alleges

constitute the taking.

¢. If the condemnor disputes the allegations, in the

petition, it may file preliminary objections within 30 days

of the petition, see Janeski_v. Borough of South

Williamsport, 58 Pa. Cmwith. Ct. 369, A.2d_ (1981).

The court must determine first whether the averments

state a cause of action as a matter of 'aw, Department of

Transportation v. Mano, 149 Pa. Cmwith. 337, 613

A 2d 119 (1992). The court will then hold an evidentiary

hearing, Millcreek Township, supra, Municipality of

Monroeville v. Prin, Pa. Cmwith._, 680 A.2d 9 (1996)

to determine if there is a taking. If the court decides in

favor of the petitioner, the procedure follows that of a de

jure taking.

d. Preliminary objections are the exclusive means to

test the legal and factual sufficiency of a petition for

board of view. Preliminary objections in de facto taking

cases serve a broader purpose than in other cases. Reidel

v. County of Allegheny, 159 Pa. Cmwith. 1325, 633

A.2d 1325 (1993); Stein v. City of Philadelphia, 125 Pa.

Cmwith. 230, 557 A.2d 1137 (1989); Hall v.

Middletown Township Delaware County _ Sewer

Authority, 75 Pa. Cmwith. 181, 461 A.2d 899 (1983).

e. If the condemnor does not file preliminary

objections or the objections are dismissed (withdrawal is

unusual - it has the effect of not filing the objections),

the allegations of the petitioner, so far as the taking is

concerned, are accepted as true and become final.

Dismissal of the preliminary objections is considered a

final order, North Penn Water Authority v. A Certain

Parcel of Land Identified by Last Known Owner and Tax

Parcel Number as Michael H. Malin and Dorothy Seimel

Malin, 477 Pa. Cmwith. 1994, 650 A.2d 1197 (1994).

65a

9. By withdrawing its preliminary objections, the City

admitted all of the allegations in the petition: that it took the property,

that it put up the jersey barriers to prevent use by PHC, that it refused

to issue permits and wrongfully revoked permits previously issued. In

effect, it mooted the eight week trial, by admission. The City, at this

very moment, in this very Court, continues to deny that it took the PHC

property, even though it already admitted that it did. It is more than res

judicata or collateral estoppel, it is a judicial admission. One cannot "play

fast and loose with the court" Resolution Trust Corp. v. Farmer, 823 F.

Supp. 302 (E.D. Pa. 1993); Tops Apparel Mfg. Co. v. Rothman, 430

Pa. 583, 244 A.2d 436 (1968).

10. By withdrawing the preliminary objections, the City

acknowledged it was not telling the truth for six years. When counsel for

the City informed the court that it had withdrawn the preliminary

objections, with the very intention of mooting the eight week trial, and

argued that damages should be limited to a 12 day period, the court was

incensed and rightfully so. The trial judge indicated that the conduct "is

almost unethical", A-2747. While the ethics issue was not paramount in

our minds at the time, with the immanency of closing on damages that

morning, we now turn our attention to it. It was not almost unethical --

it was unethical and constituted a fraud on the court, PHC and its

counsel.’

? The withdrawal of the prel

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