Acierno v. Preit-Rubin Inc.

199 F.R.D. 157, 2001 U.S. Dist. LEXIS 1866, 2001 WL 173489
CourtDistrict Court, D. Delaware
DecidedFebruary 13, 2001
DocketCiv.A. No. 99-267 GMS
StatusPublished
Cited by7 cases

This text of 199 F.R.D. 157 (Acierno v. Preit-Rubin Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acierno v. Preit-Rubin Inc., 199 F.R.D. 157, 2001 U.S. Dist. LEXIS 1866, 2001 WL 173489 (D. Del. 2001).

Opinion

MEMORANDUM OPINION

SLEET, District Judge.

I. INTRODUCTION

The plaintiff, Frank E. Acierno (“Acierno”) owns a parcel of land near the Christiana Mall in New Castle County, Delaware. The defendant, Preit-Rubin, a Pennsylvania corporation and a Real Estate Investment Trust (REIT), assisted in the development of land adjacent to Acierno’s property. In April of 1999, Acierno filed this action against PreitRubin for intentional interference with prospective economic advantage and conversion in connection with Preit-Rubin’s role in the development of the adjacent property. Specifically, Acierno alleges that Preit-Rubin misled New Castle County into approving a land development plan for the adjoining property. Acierno alleges that Preit-Rubin misled the County by not designating his property as a committed property in a traffic impact study. Acierno contends that if his property had been considered in the study, it is likely that the development plan would have been rejected. For these alleged wrongs, Acierno seeks both injunctive and monetary relief.

Presently before the court is Preit-Rubin’s motion for summary judgment. The court will grant the defendant’s motion because Acierno has failed to join New Castle County, a necessary and indispensable party, and because he has failed to adduce sufficient evidence to establish his claims for intentional interference with prospective economic advantage and conversion.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not [159]*159any genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Omnipoint Communications Enterprises, L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir.2000). One of the principal purposes of the rule is to dispose of factually unsupported claims or defenses. Omnipoint, 219 F.3d at 242 (quoting Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The court must grant summary judgment if the party responding to the motion fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. (internal quotation omitted). In considering a motion for summary judgment, the court must draw all inferences and resolve all doubts in favor of the non-moving party. See Herr v. Pequa Township, No. 99-Cv1992000, 2000 WL 1100848, at *2 (E.D.Pa. July 31, 2000).

With these standards in mind, the court will briefly describe the facts that led to this action.

III. FACTS

A. Description of the Land in Question

From the early 1970s until 1995 Acierno and Albert Marta (“Marta”) owned property adjacent to the Christiana Mall in New Castle County, Delaware as tenants in common (“Marta-Acierno property”). On November 23, 1982, Acierno and Marta entered into a Declaration of Restrictions (“Declaration”). The purpose of the Declaration was to impose restrictions on the use of the property including and requiring phasing of development to coincide with improvements to the transportation system. The Declaration also expressly committed Acierno and Marta to donate a portion of the land for the State’s anticipated realignment of Route 7 (now Route 1).

Along with construction of then Route 7, the State built an interchange next to the Christiana Mall. This interchange was built on a portion of the Marta-Acierno property that had not been donated, and thus, the State condemned this portion of the MartaAcierno property. The parties pursued a condemnation case in State court. Because Marta settled with the State prior to trial, the Supreme Court opinion in the case only addressed Acierno’s interest in the property. See Acierno v. State, 643 A.2d 1328 (Del. 1994). At trial, a representative of the state highway department testified that “[t]he State is committed to the future improvements necessary for the full development of the Acierno property.” Id. at 1334 (emphasis added). The court held that the 'State was “legally bound by its representations.” Id.

The designation of Acierno’s property as committed is significant because the State was now obligated to consider Acierno’s property in assessing the feasibility of any development in the area.1

In 1995, the Marta-Acierno property was partitioned. See In re Real Estate of Albert H. Marta and Frank E. Acierno, No. 6763, 1995 WL 130758, 1995 Del. Ch. LEXIS 35 (Del. Ch. Mar. 16, 1995), aff'd, 672 A.2d 984 (1996). Some time after the property was partitioned, Marta proceeded to develop his land through Alro Associate, L.P. (“Alro”), a Delaware limited partnership in which Marta was a partner. In order to develop the land, Alro began to seek the approval of the New Castle County Council (“County”). On September 23, 1997, the County approved the Record Major Development Plan (“Plan”) for Marta’s property (hereinafter “Christiana, Phase I”). Although Alro initially represented Christiana, Phase I in the approval process, the defendant, PreitARubin assumed the responsibility of representing Christiana, Phase I by.the time of the 1997 approval.2

[160]*160B. County Approval Process

The approval process for record major land development plans generally involves a cycle of submissions of applications and information by a developer, rejection by County officials, discussions between County officials and the developer, modification of submissions and approval by the County. The defendant contends that the approval process for Christiana, Phase I was consistent with this pattern.3

Relevant to the motion before the court, a factor considered by the New Castle County Planning Department (“County”)4 in deciding whether to approve a development project would be the traffic impact of the proposed project. In order to discern traffic impact, the County typically requires the developer to prepare a traffic impact study (“TIS”) to be submitted to the Delaware Department of Transportation (“DelDOT”) for review. After DelDOT evaluates the TIS, the County will review the evaluation and either approve or disapprove the study. The parties do not dispute that a TIS would need to consider the impact of increased traffic on “committed,” but unconstructed development projects in the area of proposed development.5

In this case, Acierno contends that PreitRubin misled the County by failing to designate his property as committed and consequently, failing to consider the Acierno property in its TIS. The parties dispute the exact order and nature of the events leading up to the approval of Christiana, Phase I.

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Bluebook (online)
199 F.R.D. 157, 2001 U.S. Dist. LEXIS 1866, 2001 WL 173489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acierno-v-preit-rubin-inc-ded-2001.