Z VIEW ENTERPRISES, LLC et al v. GIANT EAGLE, INC.

Filing 689

MEMORANDUM ORDER. It is hereby ORDERED as follows: the SCOZIO-Plaintiffs' 650 Motion to Sequester Witnesses from the Courtroom, Prohibit Disclosure of Trial Testimony to Witnesses and Prohibit Sequestered Witnesses from Accessing Trial Tes timony is GRANTED; SCOZIO-Plaintiffs' 651 Motion to Exclude Evidence or Testimony Regarding Alleged Defaults Under or Non-Compliance with Agreements not at Issue and 652 Motion to Exclude Evidence or Testimony Regarding the Performance of St ores Prior to 2006 and Irrelevant Evidence of Financial Performance Post-Conversion are GRANTED IN PART and DENIED IN PART; Defendant GIANT EAGLE's 654 Motion to Exclude Certain Deposition Designations is DENIED; GIANT EAGLE's 656 Mo tion to Exclude Certain Evidence Relating to Damages and 658 Motion to Exclude Certain Evidence Regarding the Penn Township Fuel Station are GRANTED; GIANT EAGLE's 660 Motion to Exclude Evidence Purporting to Show "Desire to Eliminate C ompetition" and 662 Motion to Exclude Peter Boschini from Testifying at Trial are GRANTED IN PART and DENIED IN PART; GIANT EAGLE's 664 Motions to Exclude David Shapira as a Witness and 666 Motion to Exclude Post-Execution Statements are DENIED as more fully set forth in said order. Signed by Judge Cathy Bissoon on 2/1/2024. (jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Z VIEW ENTERPRISES, LLC et al.,
Plaintiffs,
v.
GIANT EAGLE, INC.
Defendant.

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Civil Action No. 17-740
Judge Cathy Bissoon

I. MEMORANDUM
The parties’ Motions in limine will be resolved as follows.
A.

Plaintiffs’ Motions in limine (Docs. 650, 651 & 652)
1. Sequestration of Witnesses and Disclosure of and Access to Trial Testimony
Although Giant Eagle opposes the sequestration of its witnesses, Giant Eagle’s arguments

are too general to meet its burden of establishing an exception under Federal Rules of
Evidence 615. See generally Def.’s Resp. to Pls.’ Mot. No. 1 (Doc. 674). Moreover, the Court
finds that the tailoring of testimony can occur “whether the witness hears that testimony in court
or reads it from a transcript.” FED. R. EVID. 615(b) committee’s note to 2023 amendment
(citations omitted). As such, the request for witness sequestration will be honored, and all
parties’ witnesses sequestered. Further, disclosure of and access to trial testimony shall be
prohibited to sequestered witnesses. Thus, Plaintiffs’ Motion in limine No. 1 (Doc. 650) is
GRANTED. 1

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Although the parties do not contest that their one corporate representative would be permitted
to be in the courtroom at all times, and the Court acknowledges the 2023 amendment allows an
entity-party, such as the parties, to “swap one representative for another as the trial progresses, so
long as only one witness-representative is exempt at any one time,” FED. R. EVID. 615

2. Alleged Defaults or Non-compliance with Agreements
The Scozio-Plaintiffs seek to “exclude any evidence or testimony regarding the
performance of any Scozio-run supermarket prior to 2006 and certain irrelevant evidence of
financial performance.” Pls.’ Mot. No. 2 (Doc. 651). Yet, the Scozio-Plaintiffs’ financial status
prior to the 2006 Retailer Agreements is relevant to show that it was less likely that Giant Eagle
had the fraudulent intent to eliminate the Scozio-Plaintiffs’ stores because it allegedly provided
the Scozio-Plaintiffs subsidies and financing for the stores to remain profitable. For this purpose,
the Scozio-Plaintiffs’ alleged financial defaults prior to the 2006 Retailer Agreements is relevant
and admissible. In this regard, the Scozio-Plaintiffs’ Motion in limine No. 2 is DENIED.
Evidence related to Sparkle Market’s 2005 bankruptcy is irrelevant and not admissible as
the Scozio-Plaintiffs do not own nor operate Sparkle Market. See Pls.’ Br. to Mot. No. 2 (Doc.
653) at pp. 7-8. Thus, the Scozio-Plaintiffs’ Motion in limine is GRANTED to this extent.
Accordingly, the Scozio-Plaintiffs’ Motion in limine No. 2 (Doc. 651) is DENIED IN
PART AND GRANTED IN PART.
3. Performance of Stores Prior to and After the 2006 Retailer Agreements
Performance of Scozio-owned stores, prior to 2006, is relevant and admissible, as such
evidence may support a finding of Giant Eagle’s intent as to whether it fraudulently induced the
Scozio-Plaintiffs into entering into the 2006 Retailer Agreements. In this regard, Plaintiffs’
Motion in limine No. 3 is DENIED.
Evidence of Plaintiffs’ purported defaults with the 2006 Retailer Agreements, postexecution, is only relevant and admissible to the extent that Giant Eagle alleges there were

committee’s note to 2023 amendment, the Court discourages any gamesmanship of this
amendment and will require the parties to seek the Court's approval before designating a new
representative during trial.
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business-related reasons for its failure to fulfill or perform its alleged promise of a third store.
Albeit attenuated, this may evidence Plaintiffs’ justifiable reliance that a promise of a third store
was made in the first place. In this respect, Plaintiffs’ Motion in limine No. 3 is GRANTED.
In contrast, as further described below regarding Giant Eagle’s Motion in limine No. 2
(Doc. 656), to the extent the parties rely on evidence of Plaintiffs’ financial defaults, postexecution, the Court finds such evidence not admissible for the purposes of proving or
disproving damages relating to a hypothetical third store. As such, Plaintiffs’ Motion in limine
No. 3 is GRANTED to this extent.
Accordingly, the Scozio-Plaintiffs’ Motion in limine No. 3 (Doc. 652) is DENIED IN
PART AND GRANTED IN PART.

B.

Giant Eagle’s Motions in limine (Docs. 654, 656, 658, 660, 662, 664 & 666)
1.

Deposition Designations Regarding Giant Eagle’s fuelperks! Program

For the reasons stated in the Scozio-Plaintiffs’ brief, deposition designations related to
the fuelperks! program is admissible as such information may be probative of Giant Eagle’s
alleged fraudulent narrative that Giant Eagle intended to induce the Scozio-Plaintiffs into
entering into multiple agreements in return for an alleged third store. Thus, Giant Eagle’s
Motion in limine No. 1 (Doc. 654) is DENIED.
2. Damages Evidence in Plaintiffs’ Supplemental Pretrial Statement
As a legal matter, the Court is bound by the Third Circuit’s holding that fraud-based
claims limit relief to actual damages. See B&P Holdings I, LLC. v. Grand Sasso, Inc., 114 F.
App’x 461, 466–67 (3d Cir. 2004) (“In other words, B&P seeks the benefit of a bargain that
never materialized—anticipated profits flowing from purchase of the Property. This type of

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recovery is prohibited in Pennsylvania.”) (citing Delahanty v. First Pa. Bank, 464 A.2d 1243,
1257 (Pa. Super. Ct. 1983)) (other citations omitted). Thus, the Court finds Plaintiffs’ claimed
damages that is evidenced in their Supplemental Pretrial Statement (Doc. 643) is irrelevant and
inadmissible. See FED. R. EVID. 401 & 402; see also Wolfe v. Allstate Prop. & Cas. Ins. Co.,
790 F.3d 487, 496 (3d Cir. 2015) (damages evidence that “is not a compensable item of damages
as a matter of law . . . is not relevant evidence under Federal Rules of Evidence 401 and 402”).
Even if loss profits were recognized for fraud-based claims, the injury here allegedly
flows from a store that never existed, which is more abstract than the property that existed in
B&P Holdings, making any alleged loss profit/expectation damages claimed by Plaintiffs far too
speculative to introduce to the jury.
Moreover, while the Court acknowledges Mark Scozio’s and Ron Miller’s purported
knowledge of Plaintiffs’ claimed damages, these numbers remain speculative and are based on a
series of assumptions culminating into the extrapolation of the average profits from the White
Oak and Penn Township stores. Thus, Mark Scozio and Ron Miller testimony regarding claimed
damages noted in the Scozio-Plaintiffs’ Supplemental Pretrial Statement will be excluded. See
FED. R. EVID. 701.
Accordingly, the Court finds damages evidence identified in Plaintiffs’ Supplemental
Pretrial Statement (Doc. 643) are not admissible. Thus, Giant Eagle’s Motion in limine No. 2
(Doc. 656) is GRANTED.
3. Alleged Fraud of a Fuel Station on the Premises of the Penn Township Store
Although the Court has already ruled that the Scozio-Plaintiffs’ fraudulent inducement
claim, including the promise of a fuel station may continue to trial, see Summary Judgment
Memorandum & Order (Doc. 592), the Court finds Giant Eagle’s argument persuasive that parol

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evidence bars the admissibility of an alleged promised fuel station, as the Scozio-Plaintiffs
repeatedly admit this promise was contemplated and evidenced in the 2006 Retailer Agreements,
see Plaintiffs’ Pretrial Statement (Doc. 631) at pp. 4–5; Amend. Compl. (Doc. 25) at ¶¶ 440–43.
Giant Eagle’s Motion in limine No. 3 (Doc. 658) is GRANTED.
4. Desire to Eliminate Competition
Plaintiffs have failed to convince the Court how its witnesses, Mark Scozio; his brother,
John Scozio; Pete Boschini; or Mr. Miller will have personal knowledge of Giant Eagle’s actions
with other independent retailers to evidence Giant Eagle’s alleged desire to eliminate
competition. Thus, to the extent Scozio-Plaintiffs do not have personal knowledge of Giant
Eagle’s alleged desire to eliminate competition, that evidence is inadmissible, and Giant Eagle’s
Motion in limine No. 4 is GRANTED.
Where the Scozio-Plaintiffs may show that they have personal knowledge of Giant
Eagle’s alleged “desire to eliminate competition,” see Pls.’ Omnibus Resp. (Doc. 670)
(referencing meetings Scozio-Plaintiffs’ witnesses attended and observed presentations made by
Giant Eagle regarding raw numbers of independently owned stores, etc.), this evidence is
deemed admissible. To this extent, Giant Eagle’s Motion in limine No. 4 is DENIED.
Thus, Giant Eagle’s Motion in limine No. 4 (Doc. 660) is DENIED IN PART AND
GRANTED IN PART.
5. The Exclusion of Peter Boschini from Testifying at Trial
Boschini may be called as a witness at trial, and his testimony shall be limited to nonprivileged conversations that he allegedly had with Giant Eagle representatives relating to the
Scozio-Plaintiffs’ conversion and the promise of a third store. Thus, Giant Eagle’s Motion in
limine No. 5 (Doc. 662) is DENIED IN PART AND GRANTED IN PART.

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6. The Exclusion of David Shapira from Testifying at Trial
For the reasons stated in the Scozio-Plaintiffs’ Omnibus Response brief, see generally
Pls.’ Br. (Doc. 670), the alleged conversation between Mark Scozio and Mr. Shapira during the
grand opening of the White Oak store where Mr. Shapira allegedly reiterated and acknowledged
the promise of a third store is relevant and admissible. Giant Eagle’s Motion in limine No. 6
(Doc. 664) is DENIED.
7. Post-Execution Statements
As made clear in Stauffer v. Stauffer, 351 A.2d 236, 244 (Pa. 1976), evidence of Giant
Eagle’s continuing and on-going misrepresentations following the execution of the 2006 Retailer
Agreements are probative of Giant Eagle’s intent, and the Scozio-Plaintiffs’ continued reliance
on, Giant Eagle’s initial promise of a third store. Therefore, post-execution statements are
deemed admissible. Giant Eagle’s Motion in limine No. 7 (Doc. 666) is DENIED.
II. ORDER
Consistent with above, the Scozio-Plaintiffs’ Motion (Doc. 650) to Sequester Witnesses
from the Courtroom, Prohibit Disclosure of Trial Testimony to Witnesses and Prohibit
Sequestered Witnesses from Accessing Trial Testimony is GRANTED. Further, the ScozioPlaintiffs’ Motions to Exclude Evidence or Testimony Regarding Alleged Defaults Under or
Non-Compliance with Agreements not at Issue (Doc. 651) and to Exclude Evidence or
Testimony Regarding the Performance of Stores Prior to 2006 and Irrelevant Evidence of
Financial Performance Post-Conversion (Doc. 652) are GRANTED IN PART and DENIED IN
PART. Giant Eagle’s Motion to Exclude Certain Deposition Designations (Doc. 654) is
DENIED. Giant Eagle’s Motions to Exclude Certain Evidence Relating to Damages (Doc. 656)
and to Exclude Certain Evidence Regarding the Penn Township Fuel Station (Doc. 658) are

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GRANTED. Further, Giant Eagle’s Motions to Exclude Evidence Purporting to Show “Desire
to Eliminate Competition” (Doc. 660) and to Exclude Peter Boschini from Testifying at Trial
(Doc. 662) are GRANTED IN PART and DENIED IN PART. Lastly, Giant Eagle’s Motions
to Exclude David Shapira as a Witness (Doc. 664) and to Exclude Post-Execution Statements
(Doc. 666) are DENIED.
February 1, 2024

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

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