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John G. Simmermon, Iii & A. Simmermon Corporation v. Michael Gabbianelli

March 28, 2012


The opinion of the court was delivered by: Simandle, Chief Judge:



This case is about Monroe Township officials' allegedly retaliatory and discriminatory enforcement of zoning and towing laws against Plaintiffs John G. Simmermon, III and his towing company, A. Simmermon Corporation, doing business as A-Jacks Towing. Plaintiffs contend that Defendants' actions were in retaliation for Simmermon's advocacy at Township Council hearings and discriminatory because similarly-situated companies were treated more leniently. Plaintiffs also contend that the zoning enforcement actions were taken without due process of law. Plaintiffs are suing eight township officials and Monroe Township itself.*fn1 The matter is before the Court on Defendants' motion for summary judgment as to all claims. [Docket Item 27.]


Since 1971, Monroe Township in Gloucester County has maintained a list of tow truck operators who are called by the Township Police for towing service. Pls.' Ex. 1 (Monroe Code § 262). By the terms of the ordinance, the tow list is compiled each year, and the Township rotates the go-to provider on a weekly basis. § 262-3. This case concerns an amendment to the ordinance requiring all towers on the list to be in compliance with zoning laws, a series of zoning enforcement actions taken against Plaintiffs, and the exclusion of A-Jacks Towing from the tow list for the period from December 11, 2007 through December 4, 2008 based on the amendment to the ordinance.

A. June 2007 Towing Amendment

Prior to the events of late 2007, A-Jacks not only had a slot on the tow list, but two other companies on the list, Bill's Auto and Hogbin's Towing, contracted with A-Jacks to employ AJacks on their behalf when those companies were nominally on call. In early 2006, Lt. Anthony Pace of the Township Police brought the issue of A-Jacks contracting with these two companies to the Township Solicitor out of confusion over the arrangement and concern that Bill's and Hogbin's were not eligible for the tow list. Pls.' Ex. 11 (Pace Letter); Pls.' Ex. 12 at 5 (April 4, 2007 Council Minutes). The Solicitor raised the matter with the Township Council.

The Council held a series of meetings and hearings over the subsequent months on this and related towing issues, folding the question about A-Jacks into a general review of the towing ordinance. At these meetings, Simmermon and his then-attorney, John E. Luby, defended the substitution practice based on AJacks' superior capabilities, and raised other issues with the towing ordinance. Simmermon proposed several changes to the towing ordinance aimed at requiring higher standards of towers, such as a requirement that eligible companies be able to tow more than one vehicle at once; this requirement would have excluded some companies that had only one small tow truck. Pls.' Ex. 12 at 3 (April 4, 2007 Council Minutes).

Ultimately, on June 26, 2007, the Council approved an amendment to the towing ordinance to prevent the kind of arrangement A-Jacks had with Bill's and Hogbin's, but also to adopt many of Simmermon's recommendations, ensuring that each tower maintained a motor vehicle repair facility with various features deemed to be important by the Council, such as secure fencing. Pls.' Ex. 20 (Council minutes). Four months later, the Council also made a late addition to the amendments. At the second reading of the amended ordinance in October 2007, a final sentence was added requiring tow companies to have "all local, county, and state approvals." Pls.' Ex. 28 (Council minutes). This new requirement, § 262-14G, is at the center of the conflict addressed in this Complaint, because it was ultimately the basis upon which the Council excluded A-Jacks from the tow list.*fn2

B. The Pole Barn and Plaintiffs' Zoning Issues

The requirement that tow companies have "all local, county, and state approvals" presented a problem for Plaintiffs. As it turns out, since 2002, A-Jacks had been operating out of a pole barn constructed for Simmermon's personal use without zoning approval for the commercial activity. Having received a notice of violation in 2002 regarding the barn that notified Simmermon that he was working without permits and occupying the barn without a certificate of occupancy, he applied for and was granted a use variance subject to Simmermon's satisfaction of certain conditions. Defs.' Ex. I (Nov. 22, 2002 Violation); Defs.' Ex. E (application for variance); Defs.' Ex. L (granting variance with conditions). The Zoning Code Enforcement Officer, Fred Weikel, allowed A-Jacks to continue operating as Simmermon worked toward completing the conditions necessary for the variance. Weikel Dep. at 92-93.

Nearly five years later, though one month after the addition to the towing ordinance of a requirement for zoning approval and three weeks before the tow list was due to be finalized, the township instituted a series of severe zoning enforcement actions against Simmermon because Simmermon had still not met the conditions required by the Zoning Board.*fn3 Though not explained in the record, it appears that Monroe Township has both a Construction Official and a Zoning Officer who share jurisdiction over enforcement of zoning and construction permits. Construction Officer Michael DePalma wrote Simmermon to inform him that that he was still in violation of the 2002 notice regarding permits and certificate of occupancy, and ordering him to obtain and comply with all necessary county and local requirements. Defs.' Ex. Q (DePalma Nov. 20, 2007 Letter). Six days later, DePalma issued a notice and order of a $2,000 penalty plus a threatened fine of $2,000 per week after December 10, 2007 so long as Simmermon continued to occupy and operate his business out of the pole barn without the proper certificates, and charged him with making a false or misleading written statement in connection with his variance application. Defs.' Ex. S (Nov. 26, 2007 notice). Two days after that, DePalma issued a notice of unsafe structure, ordering Simmermon to vacate his structure by December 13, 2007 because of the failure to obtain proper permits and certificates. Defs' Ex. T (Nov. 28, 2007 notice).

Shortly thereafter, on December 11, 2007, the Council met to compile the 2008 tow list. During the closed session, the Council voted unanimously to exclude A-Jacks from the 2008 rotation list, included 8 wreckers on the list, and gave A-Jacks and Monroe Collision (also excluded) two weeks to comply with the ordinance. Teefy Dep. at 63-64; Pls.' Ex. 42 at 5. Despite the fact that Simmermon's challenge to the Township's notices was pending with the Construction Board of Appeals, Pls.' Ex. 39 (Dec. 5, 2007 petition), on December 13, four police officers and Officer DePalma arrived at A-Jacks posted a notice declaring the building unsafe for human occupancy.

Simmermon successfully challenged the shutting down of the barn as unsafe in Superior Court, and A-Jacks resumed business soon after the Christmas 2007 holidays. Simmermon Decl. ¶ 16. The Construction Board of Appeals affirmed the existence of the zoning violations, but rejected the claim that Simmermon had falsified information on his application for a use variance. Defs.' Ex. U (decision of construction board). After completing the outstanding conditions for Simmermon's use variance in the Spring and Fall of 2008, on December 4, 2008, Council approved A-Jacks for the 2009 rotation list. Defs.' Exs. X-Z.

C. Dispute Over Motivations

The principal dispute of fact in this case centers on Plaintiffs' assertion that Defendants' conduct was selective, and unconstitutionally motivated by animus toward Simmermon. In particular, Plaintiffs see retaliation in the decision to suddenly enforce the zoning rules in the days prior to the tow list hearing and the decision to refuse to grant leniency on application of the tow list requirement of "all local, county, and state approvals," while granting leniency as to other new requirements to other companies.

Plaintiffs contend that Simmermon's advocacy of higher standards at the City Council meetings preceding the June 2007 amendment, along with his company's dominant position, led to hostility toward him from the Mayor, Michael Gabbianelli, because of Gabbianelli's relationships with the other tow companies. Gabbianelli knew the owners of most of the companies, some for decades, and considers them friends. Gabbianelli also had a direct financial interest in one of the companies, B&H Auto, to whom he leased land. Gabbianelli Dep. at 39-40. Simmermon also maintains that Councilman Julio was hostile toward him because Julio disliked Simmermon's attorney, Mr. Luby, and that Councilman Caligiuri revealed hostility toward Simmermon when he became upset over what Simmermon contends was merely a misunderstanding. Plaintiffs point to the undisputed fact that other companies were exempted from the towing ordinance requirements, the Mayor's connections to the other towers in light of his advocacy at the Council hearings, and Councilman Julio and Caligiouri's alleged hostility, all as evidence that AJacks was unfairly singled out because of Simmermon's advocacy for higher standards.

Defendants claim that the cause of the renewed interest in Simmermon's zoning compliance was efforts by Eleanor Gill, one of the proprietors of Midway Auto. The day before DePalma began his enforcement actions, on November 19, 2007, Gill mailed a letter to Gabbianelli and DePalma, referring to earlier conversations with the two, complaining about A-Jacks ongoing zoning violations and the fact that A-Jacks was permitted to operate despite its lack of proper permits and certifications. Defs.' Ex. FF (Nov. 19, 2007 Gill Letter). She urged that "Considering all the towing ordinance changes A-Jacks and his attorney required the Township to make, the Council must in good faith not allow A-Jacks to remain on the tow list as he now does not meet all Township towing requirements." Id. Defendants argue that the Council's adoption of many of Simmermon's recommendations negates any inference of retaliatory animus, and that in any case the Council and Construction Office were merely enforcing the letter of the law against Simmermon.

Defendants have moved for summary judgment, contending that Plaintiffs' evidence of retaliatory animus is insufficient; that Plaintiffs fail to prove Equal Protection or Due Process violations; that Plaintiffs therefore cannot pursue municipal liability; that Defendants are protected by legislative and qualified immunity; and that Plaintiffs cannot seek punitive damages.


A. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. Fed. R. Civ. P. 56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). The nonmoving party must "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 (1986). However, the Court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). See also Scott v. ...

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