Sixty Defendants in Search of a Plaintiff | News | Pittsburgh | Pittsburgh City Paper

Sixty Defendants in Search of a Plaintiff

Wary of a lawsuit, Mon-Fayette boosters line up to go to court

Ray Giambattista of Rischitelli Brothers Trucking says he'll be a party to a lawsuit that doesn't yet exist.


Several months ago, Giambattista agreed to enlist his Charleroi-based hauling business to help defend against a lawsuit that might be filed by environmental or other grassroots groups to stop the proposed Mon-Fayette Expressway.


If it seems a bit preemptive -- like hiring a defense lawyer before being accused -- Giambattista's not worried. Nor is he the only one ready to be an "intervenor" - the legal term for someone taking such a move. His participation was wrangled by Joe Kirk, spokesman for the Mon Valley Progress Council, a business group that's the highway's most prominent promoter.


One way to take a side in a court case is to write an amicus curiae, or friend-of-the-court, brief. But intervenors, once OK'd by a court, become a third -- or fourth or fifth -- side in their own right. Intervenors have their own lawyers who can enter evidence, make arguments, and call and cross-examine witnesses.


Notes University of Pittsburgh Law Clinic professor Tom Buchele, who has worked with Mon-Fayette opponents, rebutting intervenors' claims -- or attempting to block intervention -- is "a distraction" that can cost time, trouble and money for groups that oppose the highway. "It definitely adds to the burden on the plaintiffs, if they're intervening on the part of the defendant."


Just as he won't say whether there's an anti-MFX lawsuit on the way, Buchele will not say whether he would oppose the entrance of intervenors.


Kirk says he has about 60 possible intervenors lined up, including 20 local governments, 11 organizations, eight politicians, four individuals and 28 businesses whom he won't name.

They're all hoping to keep anti-highway groups from stopping the long-debated Mon-Fayette Expressway, a project of the Pennsylvania Turnpike Commission. The Commission wants to build a 23-mile, four-lane toll road from Jefferson Hills to Pittsburgh. They've already built what's dubbed Toll 43, from California to Jefferson Hills. In the 1990s, a part of the project was challenged in court, and the suit caught Kirk's group unprepared. "Candidly, it's a legal maneuver and a political maneuver," Kirk says of the current intervention.


Neither the City of Pittsburgh nor Allegheny County, so far, is on the list of intervenors in any potential suit. Two law firms -- Pepper Hamilton and Springer Bush and Perry -- have agreed to represent the intervenors pro bono.


Right now, the most direct route from Jefferson Hills to Pittsburgh is Route 51 -- yesterday's superhighway, today slowed by sprawl -- and Route 837, which follows the Monongahela River. The proposed MFX would be shaped like a Y, with the top branches reaching into Oakland and out to Monroeville, and with its long leg running south, parallel to the Mon but a few miles west of the river. The new road would cost some $2 billion -- with none of the construction funds as yet secured, opponents point out.


If these MFX opponents do have a lawsuit in the works, it's likely to come relatively soon, because the feds gave the Turnpike Commission an official go-ahead to proceed with the road last December.


Highway opponents are skeptical of the intervenor campaign: Are there really five dozen totally separate issues here?


As even Joe Kirk acknowledges, winning intervenor status can be hard: "A judge doesn't want three attorneys wandering around the courtroom."


Says Heather Sage of Citizens for Pennsylvania's Future, a group opposing the road, Kirk "continues to emphasize that this quantity of intervenors should indicate to everyone that support for the project is immense, and that's gonna hold a lot of sway in the legal process. The judicial process is supposed to be blind to such things."


Kirk acknowledges that, on its own, without Kirk's efforts to gather the intervenors, this lawsuit would not draw such public voyeurism: "It won't be the OJ trial."


Instead, the glamorous defendant would be the Turnpike Commission or the Federal Highway Administration. The alleged lurid crime: laxity in scheduling public meetings, preparing documents and conducting investigations. There probably wouldn't even be live testimony, just endless paper, couriered back and forth.


Concludes Sage: "This tactic is another way of sending the message to the public that 'This is your only chance, either you're with us, or you're nowhere.'"


For Ray Giambattista, the Mon-Fayette Expressway would help him grow his company, which he owns with his partner, Rich Miller.


Giambattista and Miller are in the dump-truck business, selling and hauling loads such as crushed limestone and river sand, mostly to construction contractors. Via Interstate 70, they have good access to the Fayette County quarries. However, without the MFX, Giambattista says, he can't be as competitive as other companies for bids in Pittsburgh, in neighborhoods like the South Side, Squirrel Hill and the Strip. If he were able to compete for these jobs, he says, he might be able to add as many as 10 employees to his current 26.


Rischitelli Brothers was, however, able to get work on the recent Waterfront construction in Homestead, even though they had to get there via the winding Route 837. "It just adds cost" to take a slower route, Giambattista notes.


Like many, Giambattista anticipates that the highway would bring a building boom -- "just look at Cranberry Township!" he says. Charleroi and the little Mon River village where he lives, Fayette City, would "be like a little suburbia."


Besides, Giambattista adds good-naturedly, it works two ways for his business: "We build the roads and then we drive on 'em."

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