PONDEXTER v. THE ALLEGHENY COUNTY et al

Filing 121

ORDER indicating that, for reasons more fully stated within 115 Plaintiff's Motion for Reconsideration is denied. Signed by Judge Nora Barry Fischer on 10/2/12. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EARL A. PONDEXTER,
Plaintiff,

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v.
THE ALLEGHENY COUNTY HOUSING
AUTHORITY, JAMES T. ZAPF, FRANK
AGGAZIO, THOMAS MCPOYLE, and
JOHN JOYCE,
Defendants.

Civil Action No. 11-857
Judge Nora Barry Fischer

MEMORANDUM ORDER
Pending before this Court is Plaintiff Earl A. Pondexter’s “Motion for Reconsideration of
Racist Judge Nora Barry Fischers Void Order Dismissing Plaintiff’s Complaint ‘With Prejudice’
Pursuant to F.R.C.P. 59(e).”1

(Docket No. 115).

The Defendants, the Allegheny County

Housing Authority, James T. Zapf, Frank Aggazio, Thomas McPoyle, and John Joyce, have
responded with a brief opposing the motion. (Docket No. 119). In turn, Plaintiff has filed a “sur
response” to Defendant’s submission. (Docket No. 120). For the following reasons, Plaintiff’s
motion for reconsideration is denied.
I.

BACKGROUND
On June 30, 2011, Plaintiff filed a complaint alleging that Defendants unlawfully denied

his housing application on the basis of his asserted mental disability and his race. (Docket No.
4). Specifically, he claims that he mailed Defendants a completed Allegheny County Low

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In support of this motion, Mr. Pondexter submitted additional filings entitled “Response to Racist Judge Nora
Fischer’s ‘Warning’ Plaintiff’s ‘Case Closed,’” (Docket No. 116), and “Memorandum of Supreme Court and Third
Circuit Precedent Relative to the Common Law Mailbox Rule: and ‘Hearsay Evidence Exception’ Pursuant to the
Theory Promulgated in F.R.O.E. 801 and 802.” (Docket No. 117). The Court has considered each of these
submissions, none of which undermine the Court’s analysis.

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Income Housing application through the United States Postal Service on May 10, 2010, but he
never received a response. Id. at 7-8. Defendants, however, deny receiving any such submission
from him. In support of this contention, they filed the affidavit of Mr. James Bulls, the ACHA
Director of Housing Management-Operations Department, wherein Mr. Bulls affirmatively
disclaimed ACHA knowledge of Plaintiff’s housing application based on his review of agency
documents and inquiries with site managers. (Docket No. 102-1, at 40). Mr. Bulls also testified
that Plaintiff’s name did not appear on the ACHA’s waiting list, further supporting the
conclusion that he had not recently applied for housing assistance. Id.. In addition, the ACHA
provided records of applications received from April 2010 through June 2010. Id. at 41-44.
These materials indicate that the ACHA did not receive an application from Plaintiff in this time
period.
Despite a request from Defendants during the course of discovery, id. at 38-39, Plaintiff
was unable to produce any documents tending to prove the existence of the May 2010 housing
application. At the Court’s Telephonic Post Fact Discovery Status Conference, Defendants again
requested that Plaintiff submit all documents supporting his claim; however, he replied that he
did not have any additional documents and represented that he would rely on the mailbox rule.
He also admitted that he could not prove that he submitted an application to the ACHA as a
factual matter. (Docket No. 25, at 45). After the parties filed cross-motions for summary
judgment, the Court granted summary judgment in favor of Defendants and against Plaintiff on
August 21, 2012. (Docket No. 112). Plaintiff now challenges that summary judgment order
with this motion for reconsideration.

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II.

LEGAL STANDARD
A Court may grant a motion for reconsideration if the moving party shows: (1) an

intervening change in the controlling law; (2) the availability of new evidence which was not
available when the court issued its order; or (3) the need to correct a clear error of law or fact or
to prevent a manifest injustice. Max’s Seafood Café, 176 F.3d 669, 677 (3d Cir. 1999) (citing
North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The
standard that a party must meet to prevail on a motion for reconsideration is high. Berry v.
Jacobs IMC, LLC, 99 F. App’x 405, 410 (3d Cir. 2004) (unpublished).

“Motions for

reconsideration under Rule 59(e) are granted sparingly ‘[b]ecause federal courts have a strong
interest in finality of judgments.’” Jacobs v. Bayha, Civ. A. No. 07-237, 2011 WL 1044638, at
*2 (W.D. Pa. Mar. 18, 2011) (unpublished) (quoting Continental Cas. Co. v. Diversified Indus.,
Inc., 884 F. Supp. 938, 943 (E.D. Pa. 1995)). “Because of the interest in finality, at least at the
district court level … the parties are not free to relitigate issues the court has already decided.”
Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998) (citing Rottmund v.
Continental Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa.1992)); see also Exxon Shipping
Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (“Rule 59(e) ... ‘may not be used to relitigate old
matters, or to raise arguments or present evidence that could have been raised prior to the entry
of judgment.’”) (quoting 11 C. Wright & A. Miller, FEDERAL PRACTICE

AND

PROCEDURE §

2810.1, pp. 127-128 (2d ed. 1995)).
III.

DISCUSSION
Plaintiff’s motion for reconsideration must be denied because he has not identified any

intervening changes in the controlling law, new evidence, or clear errors of law or fact made by
the Court when disposing of this action at the summary judgment stage. One of the essential

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elements of establishing a claim for either racial or disability discrimination is that a defendant
must actually discriminate against the plaintiff on the basis of race or disability. To prove that
such discrimination actually occurred, Plaintiff has continually averred that he sent a completed
housing application to the ACHA by mail but never received a response. He relies on the
common law presumption that the application arrived at its intended destination to establish an
inference that the application was denied for impermissible reasons. See, e.g., Santana Gonzales
v. Attorney General of the United States, 506 F.3d 274, 278 (3d Cir. 2007) (“we have long
recognized a presumption that ordinary regular mail properly sent is presumed to be received”)
(citing Welch & Forbes Inc. v. Cendant Corp., 311 F.3d 298, 304 (3d Cir. 2002)); Carnathan v.
Ohio Nat’l Life Ins. Co., No. 1:06-CV-999, 2008 WL 2578919, at *3 (M.D. Pa. June 26, 2008)
(unpublished) (“Under Pennsylvania law, proof of mailing raises a rebuttable presumption that
the mailed item was received.”).
The presumption established by this “mailbox rule” is not conclusive, however, and it can
be nullified through the production of evidence demonstrating that the mailing was not in fact
received. See Carathan, 2008 WL 2578919, at *5 (plaintiff rebutted presumption of receipt by
providing testimony about the business practice of his company with respect to mailing); Elec.
Servs. Int’l, Inc. v. Silvers, 650 N.Y.S. 2d 243, 245 (N.Y. App. Div. 1996) (denial of receipt
supported by affidavits from employees sufficient to overcome presumption).

Because

Defendants submitted competent supporting evidence showing that the ACHA never received a
May 2010 housing application from Plaintiff, they rebutted the presumption of receipt. As the
party with the responsibility of pleading and demonstrating facts sufficient to entitle him to legal
relief, Plaintiff needed to produce evidence of actual receipt and denial of the alleged housing
application on the basis of race or disability to establish his claims of racial and disability

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discrimination. See Volk v. Unemployment Compensation Bd. of Review, 49 A.3d 38, 41 (Pa.
Commw. Ct. 2012) (“The presumption is, thus, merely a procedural device which shifts the
burden of persuasion or the burden of going forward with the evidence....”) (internal quotation
and citation omitted); FED. R. EVID. 301 (“[T]he party against whom a presumption is directed
has the burden of producing evidence to rebut the presumption. But this rule does not shift the
burden of persuasion, which remains on the party who had it originally.”).
This was a burden Plaintiff did not meet. Nowhere in his summary judgment papers, the
instant motion, and related filings did he set forth any facts, let alone new facts, showing that the
ACHA actually received and denied his May 2010 housing application. Instead, Plaintiff chose
to stand by his unsupported assertion that he mailed the alleged application—a fact that, by itself,
would not entitle him to prevail, even if proved to be true. Given that Defendants could not have
unlawfully denied an application they did not receive, their rebuttal of the alleged receipt of same
is dispositive absent evidence of discrimination.
Plaintiff’s motion for reconsideration now takes aim at Mr. Bulls’ affidavit in an attempt
to undermine the evidentiary underpinning this Court’s summary judgment order. Nevertheless,
the Court finds no reason to disregard Mr. Bulls’ testimony. An affidavit may be used to support
a summary judgment motion if it was “made on personal knowledge, set[s] out facts that would
be admissible in evidence, and show[s] that the affiant ... is competent to testify on the matters
stated.” FED R. CIV. P. 56(c)(4); see also Perrett v. Harmar Twp., No. 07-593, 2008 WL
3457014, at *7 (W.D. Pa. Aug. 8, 2008) (unpublished) (“when a non-moving party points to
arguably hearsay evidence, [the court] must first determine whether the evidence has the
potential to be admissible at trial. If it is admissible, [the court] may consider it in ruling upon
the motion for summary judgment”) (citing J.F. Feeser Inc., 909 F.2d 1524, 1542 (3d Cir. 1990);

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Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 95 (3d Cir. 1999)). Mr. Bulls’ testimony
was sworn before a notary and his signed affidavit recounts matters within his personal
knowledge. See Liotta v. Nat’l Forge Co., 629 F.2d 903, 907 (3d Cir. 1980) (similar affidavit
containing assertions of fact within the affiant’s personal knowledge was found admissible for
summary judgment purposes). Moreover, the affidavit does not contain hearsay within the
meaning of Rule 801 of the Federal Rules of Evidence because it offers no out-of-court
“statement” used “to prove the truth of the matter asserted in the statement.” See, e.g., United
States v. Hawkins, 409 F. App’x 507, 510 (3d Cir. 2010) (unpublished) (testimony that contained
no statements by the declarant’s parents was not hearsay); Evans v. York Cnty. Adult Prob. and
Parole Dep’t, No. 09-CV-1013, 2012 WL 4069766, at *6 (M.D. Pa. Sept. 17, 2012)
(unpublished) (testimony that did not offer a a non-declarant’s statement to prove the matter
asserted was not hearsay).

Given that Mr. Bulls personally reviewed ACHA records and

conducted an inquiry with site managers, he can properly attest to the existence, or lack thereof,
of Plaintiff’s claimed housing application. See Grim v. Moore, 745 F. Supp. 1280, 1285 (S.D.
Ohio 1988) (hearsay challenge partially rejected because affiant could testify as to the existence
of complaints based on his inquiry of other persons).
Likewise, Plaintiff’s attempt to discredit Mr. Bulls is also unpersuasive. While he now
broadly accuses Mr. Bulls of giving false testimony in his affidavit, this conclusory allegation is
not supported by facts that would give a reasonable person cause to believe it. See McGreevy v.
Stroup, 413 F.3d 359, 363 (3d Cir. 2005) (dispute is not “genuine” for summary judgment
purposes if a reasonable trier of fact could not render a finding in favor of the non-moving party).
Furthermore, Plaintiff has also failed to mount any challenge to the accuracy of the ACHA

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records that support Defendants’ contention they never received his application. For these
reasons, Plaintiff has failed to show that he is entitled to proceed in this action.
Although Plaintiff cites to a number of federal court decisions to support his motion,
those cases do not clearly demonstrate that this Court’s order granting summary judgment was in
error. First, he references the Supreme Court’s opinion in Rosenthal v. Walker, which stated that
“when [the presumption] is opposed by evidence that the letters never were received, [the
evidence] must be weighed with all the other circumstances of the case, by the jury in
determining the question whether the letters were actually received or not.” 111 U.S. 185, 194
(1884). Because Rosenthal arose out of a challenge to the admission of evidence during a jury
trial, id. at 193, the Court’s ruling was written to clarify what evidence may be submitted for the
jury’s review. Therefore, Rosenthal is distinguishable from the case at hand. To the extent that
the Tenth Circuit’s interpretation of Rosenthal, as expounded in Witt v. Roadway Express, 136
F.3d 1424, 1429 (10th Cir. 1998), can be construed to mean that summary judgment cannot be
granted when a party rebuts the mailbox rule’s presumption, such position has not been adopted
by the Third Circuit and this Court is not bound to follow it. Indeed, the Third Circuit cases on
which Plaintiff relies in the portion of his brief entitled “THE PLAINTIFF RELIES ON THE
SUPREM COURT AND 3RD CIRCUIT’S INTERPRETATION OF THE ‘COMMON LAW
MAILBOX RULE’” are not helpful to his cause. The Third Circuit’s decision in Philadelphia
Marine Trade Ass’n-Int’l Longshoremen’s Ass’n Pension Fund, merely ruled that the common
law mailbox rule was not preempted by the Internal Revenue Code. 523 F.3d 140, 152 (3d Cir.
2008). This proposition, however, has never been contested or even presented as an issue. In
addition, Heard v. C.I.R., 269 F.2d 911 (3d Cir. 1959), another tax case dealing with filing
deadlines and procedures, fails to even implicate the mailbox rule. Other rulings referenced in

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Plaintiff’s supporting briefs, including the most recent sur reply, (Docket No. 120), are similarly
distinguishable, inapposite, or non-controlling.
Finally, with respect to Plaintiff’s accusations of racism, impartiality, and bribery, the
undersigned District Judge again denies each and every allegation of impropriety. His assertion
that the Court or a member of the Court’s staff uttered a racist statement during the August 10,
2011 status conference is without any basis in fact. Indeed, the transcript of the proceeding
demonstrates that Plaintiff was treated with the respect given to any other party proceeding
before this Court. (Docket No. 25).
IV.

CONCLUSION
For the aforementioned reasons, Plaintiff has failed to state any cognizable basis for

granting his motion to reconsider.

(Docket No. 115).

Accordingly, the Court enters the

following Order on this 2nd day of October, 2012:
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration, (Docket No.
[115]) is DENIED.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated:

October 2, 2012

cc/ecf:

All Counsel of Record

cc:

Earl A. Pondexter
P.O. Box 2311
Grant Street
Pittsburgh, PA 15230
(Regular & Certified Mail)

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