# Petition for Writ of Certiorari — Gross v. City of Pittsburgh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1047%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 861 ## Text : rt, U.S. 1210\12109\12109c\12109eP 1 0s2097 we AREER 0c Nn . |) 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. il 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. iV 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 vi —— 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. CO 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. 9 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. 10 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; © Landslides in Panther Hollow area; and, 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 1] 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 12 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. 13 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. 14 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. 15 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 16 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. 17 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. 18 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. 19 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 20 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 9 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. 21 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 22 (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 23 —— 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 24 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 1 10 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. 25 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. 27 ow —— 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 v. CITY OF PITTSBURGH, Appellant in No. 96-3242 SOL GROSS, an individual; PANTHER HOLLOW CORPORATION v. 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 v. 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. 3a 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 5a ee —— 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 6a 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: 7a — 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 8a 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): S 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 V. 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 V. 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, V. 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 V. 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 V. 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 questio [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1047%3A1. Public record. Not legal advice.