Greco v. Wech et al

Filing 40

MEORANDUM and ORDER denying 27 Defendants' Motion in Limine w/o prejudice to the dfts raising the issue again at trialSigned by Honorable James M. Munley on 4/12/13 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMELIA M. GRECO, as Trustee
of Revocable Trust Agreement
dated January 8, 2004,
Plaintiff

:
No. 3:11cv383
:
:
(Judge Munley)
:
:
v.
:
:
RICHARD A. WECH, individually
:
and in his capacity as Code
:
Enforcement Officer of the
:
City of Hazleton, Pennsylvania and :
THE CITY OF HAZLETON,
:
PENNSYLVANIA,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM and ORDER
Before the court for disposition is defendants’ motion in limine to
preclude plaintiff from presenting into evidence certain photographs. The
matter has been briefed and is ripe for decision.
Background
The facts pertinent to the instant motion in limine are generally
undisputed. Plaintiff owned certain property in the City of Hazleton,
Pennsylvania. She asserts that defendants conspired to cite the property
for code violations with the intent of acquiring the property and depriving
her of her constitutional rights. Plaintiff asserts that the property was cited
hundreds of times for alleged code violations. Plaintiff was forced to
demolish the property, and its economic value was eviscerated. Plaintiff’s

complaint claims violations of substantive and procedural due process.
Plaintiff alleges that defendants actions were arbitrary, capricious and
irrational. Further, she avers that the actions were taken without prior
notice, benefit of a hearing or pursuant to appropriate and statutorily
established procedures.
During discovery, defendant took the deposition of Angelo Greco, a
duly authorized representative of plaintiff. Greco provided details of an
investigation he undertook with his brother Michael Greco pertainingto
other properties in Hazleton that may have been in violation of Hazleton’s
building codes and ordinances. Plaintiff plans on calling these two
witnesses at trial. (Doc. 32, Pl.’s Br. at 6).
Defendants filed the instant motion in limine to preclude plaintiff from
presenting at trial the pictures of other buildings in Hazleton that are
allegedly in violation of Hazleton’s building codes and ordinances.
Defendants’ position is that an expert witness is needed to establish that
the buildings in the pictures are in fact in violation of the codes. Plaintiff
does not have such an expert, therefore, the pictures should not be
presented at trial according to the defendants. Plaintiff alleges that the
testimony of Angelo and Michael Greco is sufficient to support the
admission of the pictures. After a careful review, we agree with plaintiff.
Discussion
Lay witness opinion evidence is provided for in the Federal Rules of
Evidence as follows:
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one
that is:
(a) rationally based on the witness’s
perception;
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(b) helpful to clearly understanding the
witness’s testimony or to determining a fact in
issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule
702.
FED. R. EVID. 701.
Plaintiff’s complaint avers as follows:
At all times relevant hereto, there existed and
continues to exist a number of properties within the
City of Hazleton, Pennsylvania, properties which
clearly exhibit an appearance of dilapidation to such
an egregious extent that it is clear from the
appearance of said properties, that they are in
violation of the Uniform Construction Code, the
International Property Maintenance Code 2006, the
International Property Maintenance Code 2009; the
2009 International Existing Building Code; the 2009
International Building Code; the 2009 International
Fire Code and/or local ordinances.
(Doc. 1, Compl. ¶ 11).
At his deposition, Angelo Greco presented the pictures at issue and
reviewed them with opposing counsel. (Doc. 27-1, Photographs, Doc. 321, Angelo Greco Dep. at 105-122). Angelo Greco and his brother Michael
Greco performed the investigation into these buildings and will evidently
testify at trial. They will be able to testify as to why they believe code
violations are present in the buildings. For example, one building evidently
has a broken window, broken garage door, stairs in disrepair and several
windows missing. (Doc. 32-1, Angelo Greco Dep. at 105). This testimony
is rationally based on the witness’s perception and will be helpful for the
jury to understand the witness’s testimony. See FED. R. EVID. 701. It
appears, at this time, that no expert is needed to explain the subject to the
jury. Defendants could vigorously cross-examine the witnesses on this
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matter regarding whether they know if the owners of these buildings were
ever cited for code violations.

Defendants would also be able to argue to

the jury the appropriate weight that should be given to this evidence.
We find, however, that this evidence may best be ruled upon once
the trial has started and the court can examine the photographs in the
context of the case as a whole. Accordingly, the defendants’ motion in
limine (Doc. 27) is hereby DENIED without prejudice to the defendants
raising the issue again at trial.

Date: 4/12/13

BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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