                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2004

Pellegrino Food Prod v. Warren
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1090




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Recommended Citation
"Pellegrino Food Prod v. Warren" (2004). 2004 Decisions. Paper 129.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/129


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                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                          No. 03-1090
                         ____________

         PELLEGRINO FOOD PRODUCTS CO., INC.,
  a Pennsylvania Corporation; ANTHONY PELLEGRINO, SR.;
     ANGELA M. PELLEGRINO; THOMAS PELLEGRINO

                               v.

                        CITY OF WARREN;
     JOHN R. NEMCOVSKY, Individually and in his official
              capacity as Mayor of the City of Warren;
      MARY E. CANARRO, Individually and in her official
         capacity as council member of the City of Warren;
        MARK DANIELSON, Individually and his official
         capacity as council member of the City of Warren;
        MARK A. PHILLIPS, Individually and his official
         capacity as council member of the City of Warren;
          MARK ZAVINSKI, Individually and his official
         capacity as council member of the City of Warren;
 DONALD A. WORLEY, Individually and in his official capacity
as Zoning Officer Community Safety Officer of the City of Warren;
     A. KENNETH DUPONT, Individually and in his official
          capacity as City Manager of the City of Warren;
       RICHARD POORM AN, Individually and his official
           capacity as Police Chief of the City of Warren;
       SANTO PASCUZZI, Individually and in his official
          capacity as the Fire Chief of the City of Warren;
  WILLIAM F. MORGAN, ESQ., Individually and in his official
           capacity as the Solicitor of the City of Warren;
       GEORGE CROZIER, Individually and in his official
        capacity as chairman of the Zoning Hearing Board;
      RANDY M INEWEASER, Individually and his official
        capacity as a member of the Zoning Hearing Board;
         DONALD DAVIS, Individually and in his official
        capacity as a member of the Zoning Hearing Board;
              DAVID SEE, Individually and in his official capacities as
       a member of the Planning Commission and as a member of City Council;
                  JAMES CABBON, Individually and in his official
                  capacity as a member of the Planning Commission;
            SWANSON, BEVEVINO, GILFORD AND STEWART, P.C.,
       Individually and in it’s capacity as Solicitor of the Planning Commission;
                   WILLIAM A. BEVEVINO; RITA BEVEVINO;
                     GLENN M. BELLEAU; MARY BELLEAU;
     SHERWOOD N. FLEMING; DOROTHY L. FLEMING; PETER H. SMITH;
            MARGERY R. SMITH, Solicitor of the Planning Commission

                          JOHN R. NEMCOVSKY, A. KENNETH DUPONT,
                          WILLIAM F. MORGAN, ESQUIRE;
                          DONALD A. WORLEY and GEORGE W. CROZIER,

                                                      Appellants
                                   ____________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                              (D.C. No. 00-cv-00153E)
                   District Judge: Honorable Sean J. McLaughlin
                                   ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 25, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALDISERT, Circuit Judges.

                            (Filed November 19, 2004 )
                                   ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Appellants John R. Nemcovsky, A. Kenneth DuPont, William F. Morgan, Esq.,

Donald A. Worley and George W. Crozier (“City of Warren Officials”) appeal from those

                                          2
portions of two orders of the United States District Court for the Western District of

Pennsylvania which denied their motion for summary judgment on qualified immunity

grounds. While Appellees Pellegrino Food Products Company, Inc., Anthony Pellegrino,

Sr., Angela M. Pellegrino, and Thomas Pellegrino, contend at the outset that this Court

lacks appellate jurisdiction, we conclude that jurisdiction does exist. See Ziccardi v. City

of Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002) (“we possess jurisdiction to review

whether the set of facts identified by the district court is sufficient to establish a violation

of a clearly established constitutional right.”), see also Rivas v. City of Passaic, 365 F.3d

181 (3d Cir. 2004). We affirm because our plenary review of the record and application

of the summary judgment standard convinces us that summary judgment on qualified

immunity could not have been granted at this stage of the proceedings. Appellees have

indeed asserted recognized constitutional rights, see DeBlasio v. Zoning Bd. of

Adjustment, 53 F.3d 592, 601 (3d Cir. 1995) (“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”), abrogated

on other grounds, United Artists Theatre Circuit, Inc. v. Township of Warrington, 316

F.3d 392 (3d Cir. 2003); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)

(similarly-situated entities should be treated similarly), but, as the district court correctly

determined, there exist disputed issues of material fact, resolution of which will determine



                                               3
whether those rights were actually deprived. It is not now the court’s role to find and

interpret these facts. See Rivas, 365 F.3d at 204 (Ambro, J., concurring in part).

       The judgment of the district court will be affirmed.

________________________




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