More heated proceedings
By:Charlie Olsen
A heated case has turned into a cold war as Vincent D’Aniello received another adjournment in his battle against an eviction order from Rustic Mall LLC.
The mall has been trying to clear out the tenants to allow for the continuing Federal Creosote Superfund cleanup and redevelopment of the property. Only now, when Mr. D’Aniello returns to court on July 5, he will be alone in his fight – a fight he has been waging since the April 30 deadline.
All other eviction cases have been dismissed, except for the Speedwash laundromat – which the court found to be in an identical situation to Manville Pizza. The case was stayed, pending a decision on Mr. D’Aniello’s case which will be applied to the laundromat.
According to Rustic Project Manager Joe Korn, the cases were dismissed because the other businesses have all agreed to move.
"Believe it or not, we do actually work with people," said Mr. Korn.
Attorney Anthony Reitano representing the Rustic Mall to the Environmental Protection Agency (EPA) continued his testimony, started two weeks ago at the last hearing.
Joseph Dickson, an attorney from Wolf and Samson representing the mall, called Mr. Reitano back to the stand as an expert because of his credentials as both an environmental engineer and attorney.
However, his testimony was met with a wall of objections because Tim McKeown – an attorney from Norris, McLaughlin and Marcus representing Mr. D’Aniello – found Mr. Reitano wasn’t a credible source because of his involvement with the mall and was expecting an EPA representative.
When the plaintiff tried to present a letter showing a failed attempt to obtain a voluntary witness from the EPA, Mr. McKeown again objected.
"We’re placed at a disadvantage here," said Mr. McKeown. "I can’t cross-examine a letter."
Mr. Dickson countered that "they are not coming willingly and have not been subpoenaed."
Visibly aggravated with Mr. McKeown’s outspokenness, Judge Fred Kumpf allowed the EPA’s Record of Decision to be entered as evidence, along with a map outlining in detail where the Army Corps of Engineers made its borings to test for creosote contamination.
Despite protest from Mr. McKeown, Mr. Reitano was allowed to state his opinion of what the map represented because of a key which deciphered the markings on the map in layman’s terms.
According to Mr. Reitano’s interpretation of the map, there was creosote contamination surrounding the footprint of the mall, but nothing on the map indicated there were any hot spots beneath the pizza restaurant because the Corps of Engineers was not allowed to bore through the floor of active leaseholders’ businesses.
Mr. McKeown, on cross-examination, brought discussion back to the access agreement, which was entered as evidence. Mr. Reitano was the attorney who prepared the agreement between Rustic and the EPA.
Mr. McKeown asked if there was a provision in the access agreement which allowed, with mutual consent from both parties, an extension of the lease beyond the July 2008 expiration of Mr. D’Aniello’s lease.
Mr. Reitano responded, "Theoretically yes."
When Mr. McKeown tried to ask Mr. Reitano if he had sent a copy of the access agreement to the tenants of the mall, he claimed that attorney-client privilege prevented him from testifying.
Mr. McKeown raised objections that Mr. Reitano had been testifying the entire time in violation of attorney-client privilege and again referenced the fact that the access agreement preceded the renewal of his client’s 5-year-lease option.
"They can’t use it as a shield and a sword," said Mr. McKeown. "They knew when they put him up [on the stand] he was the attorney."
However, instead of addressing the issue Judge Kumpf asked the attorneys into his chambers. When they emerged 10 minutes later, the judge announced he would not be able to hear the case until July 5 or 6.
Mr. Dickson objected because the speed of the remediation required a swifter outcome. When Judge Kumpf reminded him that he could seek a new hearing date and judge, Mr. Dickson said that he would seek a new date, with all due respect.
Mr. Korn during a break, expressed his frustration with the delays.
"There were two things hurting Manville – Johns Manville and Federal Creosote," said Mr. Korn. "This site is all that’s left. If Mr. D’Aniello wins, Manville loses."