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September 5, 1995

JOSEPH PICA, Plaintiff,
MORRIS SARNO, et al., Defendants.

The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 This matter is opened before the Court upon the motion of defendant Morris Sarno for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court has decided the motion upon the written submissions of the parties, pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the motion for summary judgment on the issues of liability and compensatory damages will be denied. Defendant's motion for summary judgment to dismiss the claim for punitive damages will be granted.


 In November, 1991, plaintiff Joseph Pica placed a wooden sign in his backyard facing an adjacent lot that was under development. (Deposition of Pica ("Pica Dep.") at 7-8). Jade Meadows Associates was developing the lot into homes for sale. The four-foot by eight-foot sign stated in painted letters, "BUYERS BEWARE. IT'S ALL DOCUMENTED. EVE 467-8499." (Id.) Pica alleges that he put up the sign because he "was extremely concerned as to the manner in which the residential housing project was being carried out and planned." (Complaint P 19.) He believed the development was being built on a marshland susceptible to flooding. (Plaintiff's Brief at 3; see also Transcript of Hearing, Feb. 20, 1992 ("Tr.") at 6.). In his brief, plaintiff represents that he was worried about flooding. Pica himself had bought a home from Soburn Realty *fn1" in 1982 and was dissatisfied with numerous problems. (Pica Dep. at 14-19.) Sarno suggests in his briefs that Pica had put the sign up as revenge against Jade Meadows and Soburn Realty. (Def.'s Brief at 2-3; Def.'s Reply Brief at 3.)

 Construction was underway and potential buyers visited regularly. (Pica Dep. at 52.) Some saw the sign and called Pica at his home. (Pica Dep. at 31.) Pica stated that when potential buyers called, he told them how best to protect their interests as buyers.

 On November 20, 1991, Sarno, the Zoning Officer for Springfield Township in Union County, New Jersey, wrote Pica and told him to remove his sign because it violated the Springfield zoning ordinance against outdoor signs. *fn2" Pica did not remove the sign. Sarno issued a summons for violation of the sign ordinance. Pica appeared in municipal court and pled guilty. He paid a $ 100 fine and removed the sign.

 Pica then applied for a sign permit in accordance with the provisions of the ordinance. The permit application was never acted upon. Later, Pica put two more signs in the back windows of his house facing the lots. (Tr. at 11.) The signs issued the same warning to potential buyers. (Id. at 12.) About one week later, Richard Allen, superintendent of Jade Meadows, phoned the zoning office to complain about Pica's window signs. (Sarno Aff. P 5.) Sarno sent Pica a second summons charging him with violation of another provision of Springfield's sign ordinance forbidding window signs.

 Pica retained counsel for this, his second appearance in municipal court. At the trial, the prosecutor claimed that Pica's window sign violated Section 387 of the Zoning Ordinance, which prohibits: "Temporary signs, or lettered announcements used or intended to advertise or promote the interests of any person." The judge questioned Sarno as to whether Pica's application for a permit had ever been approved or denied. (Tr. at 18.) Sarno conceded he had not acted on the permit, because "it was something that was not permitted." (Id.) Sarno then stipulated that Pica's permit had been, in effect, rejected. (Id.) *fn3" The prosecutor emphasized that Pica violated the ordinance because his sign promoted the "interest of any person." The judge found Pica guilty of violating the zoning ordinance.

 Pica appealed to the New Jersey Superior Court. In a trial de novo, the court found him not guilty and struck down the zoning ordinance as repugnant to the First Amendment of the United States Constitution. Defendants have stated that Pica won his appeal "solely because the Municipal Prosecutor failed to appear." (Defendant's Brief at 5). This statement is without foundation and comes dangerously close to a misrepresentation to the Court. The transcript clearly reveals that Judge Triarsi reviewed the ordinance, the transcripts below, and the applicable law. He stated his opinion for the record that the signs were not commercial speech but on a matter of public interest, and that the ordinance was over-broad and violated Pica's right to free speech. (Tr. at 5-6.) Thus, the state court ruled on the merits, and did not base its decision on the Township's failure to appear. The Court finds defendant's unfair characterization of the record to be unprofessional and warns that this type of advocacy will not be tolerated.

 The signs remained in Pica's windows for four or five months. (Pica Dep. at 39.) When they deteriorated, Pica removed and did not replace them. (Id.) Pica testified that calls from potential buyers had become so numerous they had become an annoyance. (Pica Dep. at 39-40.)

 Pica seeks compensation for denial of his First Amendment right to free speech, for the money he paid his lawyer to fight the zoning law, and for his emotional trauma and humiliation. Pica has testified in his deposition that the experience of receiving a summons and going to court was humiliating, embarrassing, and threatening. (Pica Dep. at 40-41.) His wife, Judith, testified in her deposition that her husband had missed work because he had become distressed by the experience. (Deposition of Judith Pica ("Judith Pica Dep.") at 18-19.) He also seeks punitive damages.


 Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986).

 Whether a fact is "material" is determined by the substantive law defining the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); United States v. 225 Cartons, 871 F.2d 409, 419 (3d Cir. 1989). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. There exists a "genuine" issue as to a material fact if the evidence would permit a reasonable jury to return a verdict for the party opposing summary judgment. Id. at 248.

 When, as here, the nonmoving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party has done so, the burden shifts to the nonmoving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Sarno raises several issues in support of his motion for summary judgment. First, he asserts that Pica has failed to exhaust his claim in state court. Second, he seeks to relitigate the issue of the Springfield ordinance's constitutionality, arguing that the signs were actually commercial speech deserving a lesser degree of constitutional protection and that the Springfield sign prohibition is an acceptable "time, place, and manner" restriction on speech. Third, he claims that Pica has suffered no compensable injury. Finally, defendant argues that punitive damages are inappropriate, because Pica did not show that Sarno had the requisite evil motive or reckless disregard of Pica's federal rights.

 Pica presents as genuine issues of material fact: (1) whether he has established a prima facie case that his First Amendment right was violated, (2) whether Sarno was acting under "color of law," (3) whether the sign was "political speech," (4) whether the state court judgment that the ordinance is unconstitutional is "dispositive," and (5) whether economic losses, embarrassment, and mental anguish are compensable under section 1983. These "facts," however, are quite clearly questions of law.

 This Court is, of course, not bound by the New Jersey Superior Court's adjudication of federal constitutional rights. Plaintiff's argument that the First Amendment issues may not be relitigated must, therefore, rest on the doctrine of issue preclusion. The Court believes that issue preclusion would not be appropriate in this matter. Defendants, by raising the constitutional question as a defense to this action, have invoked the special jurisdiction of this Court to determine such matters. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964). Further, the Court notes that, for whatever reason, neither the ...

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