Full opinion text
DECISION AND ORDER VAN ANTWERPEN, District Judge. I. INTRODUCTION Plaintiffs Gary Grimm (“Grimm”) and Grimm Brothers Realty Company filed this civil action on January 26, 2001 seeking money damages and declaratory and injunctive relief under 42 U.S.C. § 1983 arising from alleged First Amendment retaliation, Fourteenth Amendment due process and state constitutional violations. On July 5, 2001, we granted the defendants’ motion to dismiss those counts of the complaint alleging state claims against the defendants’ municipal employer, the Borough of Norristown, and the plaintiffs’ claim for declaratory and injunctive relief. Discovery was completed on December 5, 2001, after which both parties moved for summary judgment. Following oral argument on these motions, held February 13, 2002, we denied plaintiffs’ motion and granted partial summary judgment for defendant on March 11, 2002. Remaining for trial were the plaintiffs claims that 1) the defendants acted in retaliation for the plaintiffs’ exercise of their First Amendment rights of freedom of speech and freedom to file law suits; 2) the defendants acted in such a way as to violate the plaintiffs’ substantive due process right to be free from arbitrary government action; 3) defendant O’Donnell acted in retaliation for plaintiff Gary Grimm’s exercise of his Fourth Amendment right to refuse access to his property; and 4) the defendants’ condemnations of 857 Cherry Street and 837 Swede Street violated Article I, Section 8 of the Pennsylvania Constitution. Grimm v. Borough of Norristown, 226 F.Supp.2d 606 (E.D.Pa.2002). On October 22, 2002, the parties stipulated that all claims would be tried without a jury and before a judge, sitting alone, and we entered an order to that effect. We conducted a non-jury trial from November 20 through November 26, 2002, in Easton, Pennsylvania. Both parties waived their opening statements, and plaintiff called Gary Grimm (“Grimm”) to begin the trial. After eliciting extensive testimony from Grimm on direct examination, plaintiffs’ attorney agreed to let the defendants call two witnesses out of order. Thereupon, the defense called Kevin McKeon (“McKeon”), a Detective Lieutenant in the Borough of Norristown police department and the supervisor of defendant O’Donnell in his capacity as coordinator of a multi-jurisdiction crime and quality of life task force called the CLEAN team, and William Tims (“Tims”), a police Sergeant in the Borough of Norristown police department. Following the testimony of McKeon and Tims, Grimm resumed the stand. The plaintiffs also called Frank Scipione (“Scipione”) as an expert -witness on the interpretation of building codes; Joseph Epifanio (“Epifanio”), a former Borough of Norristown council president and mayoral candidate and member of the Norristown Initiative; William DeAngelis (“DeAngelis”), mayor of the Borough of Norristown; Richard Byler (“Byler”), a present director of the Norristown Initiative; Theodore Thompson, Esq. (“Thompson”), one of several attorneys who previously represented plaintiff Grimm in state court proceedings related to the condemnations and citations that are the subject of this case; defendant O’Donnell and defendant Sweeney. The defense called Robert Rosen (“Rosen”) as their own expert; Paul Perry (“Perry”), the founder and Chief Executive Officer of the National Association of Investment Landlords (“NAIL I”); Dawn Castro (“Castro”), a former short-term employee of Grimm; Mark Bernstiel (“Bernstiel”), an officer in the Montgomery County District Attorney’s Office and the supervisor of the CLEAN team; Paul Van Grossi (“Van Grossi”), the Borough solicitor for the Borough of Norristown; plaintiff Grimm and both defendants. In lieu of closing arguments, we ordered the parties to submit proposed findings of fact and briefs. Based upon the parties’ submissions, our evaluation of the evidence presented, and the credibility of the witnesses during the non-jury trial, we have made special findings of fact and conclusions of law. These are set forth more fully infra. See Fed.R.Civ.P. 52(a). We grant judgment for defendants on all claims presented by the plaintiffs. II. FINDINGS OF FACT The Parties 1.Plaintiff Grimm Brothers Realty owns six mixed-use properties in the Borough of Norristown. (11/20/02 tr. at 5; 11/21/02 tr. at 64). These include buildings at 202 Jacoby Street, 636 Cherry Street, 857 Cherry Street, 837 Swede Street, 839 Swede Street and 901 Swede Street (11/20/02 tr. at 31, 167; 11/21/02 tr. at 28, 65-66). 2. Grimm Brothers Realty has not received any citations at the 202 Jacoby Street, 636 Cherry Street or 901 Swede Street buildings during times relevant to this action. (11/21/02 tr. at 65). 3. Plaintiff Gary Grimm holds every corporate officer position of Grimm Brothers Realty. (11/20/02 tr. at 2). He also owns a property at 337 East Marshall Street in the Borough of Norristown. (11/20/02 tr. at 5). 4. Mr. Grimm is the public relations director of the Norristown Association of Investment Landlords (“NAIL II”). (11/20/02 tr. at 6). NAIL II is a different organization from the National Association of Investment Landlords (“NAIL I”). (11/22/02 tr. at 194-195). NAIL I was incorporated in 1974, and NAIL II was formed in 1994 (11/22/02 tr. at 194, 199; 11/20/02 tr. at 6). Since late 1999 or early 2000, NAIL I has, through its director, requested that NAIL II cease using the acronym “NAIL” so as to avoid creating the impression that NAIL II is part of or affiliated with NAIL I. (11/22/02 tr. at 200). We do not find credible Grimm’s claim that NAIL I merely changed its name to become NAIL II. (11/20/02 tr. at 6). 5. Mr. Grimm is also the Chair of the Civic Life Committee of the Norristown Initiative (NI). NI is an organization originally formed by the Montgomery County Commissioners to address civic issues in the Borough of Norristown. The Civic Life Committee of NI addresses issues of housing, code enforcement and crime. (11/20/02 tr. at 18). 6. Defendant O’Donnell is the Fire Chief, an Assistant Building Inspector for the Borough of Norristown and a member of the multi-jurisdiction CLEAN team. (11/22/02 tr. at 59-60;l1/26/02 tr. at 20, 24-25) 7. Defendant Sweeney is the Fire Marshal, Code Enforcement Supervisor, Supervisor of the Fire Department and the Emergency Preparedness Coordinator of the Borough of Norristown. (11/22/02 tr. at 156-57). Basis of Claims of Retaliation for Exercising Right to Sue 8. NAIL I initiated several lawsuits from 1994 through 1997 against the Borough of Norristown, challenging the licensing fees assessed by the Borough. (11/22/02 tr. at 191-192; 11/20/02 tr. at 6, 8). Joining NAIL I in these lawsuits as plaintiffs were all of its 165 members, which included both corporate entities and individuals. (11/22/02 tr. at 192). Mr. Grimm and Grimm Brothers Realty were among these plaintiffs. (11/20/02 tr. at 7). The Norristown Initiative was not a party to the litigation. (11/21/02 tr. at 52). 9. We do not find credible Mr. Grimm’s claim that the court challenges were organized by NAIL II. (11/20/02 tr. at 7). Indeed, Mr. Grimm, under cross-examination, admitted that his organization was not involved in the lawsuit. (11/21/02 tr. at 53). NAIL I initiated and organized these lawsuits. (11/22/02 tr. at 191-192). The leader of NAIL I at that time was its incorporator, founder and CEO, Paul D. Perry, who was the primary plaintiff. (11/21/02 tr. at 53; 11/22/02 tr. at 191,192). 10. The lawsuits initiated by NAIL I were settled favorably to the plaintiffs in December of 1999. (11/20/02 tr. at 10; 11/22/02 tr. at 193). 11. Mr. Grimm’s direct involvement in the NAIL I lawsuits was peripheral at best. He had no contact with Van Grossi, the Borough Solicitor defending the Borough in the litigation, and neither he nor Grimm Brothers Realty as an entity was involved in any of the settlement negotiations. (11/22/02 tr. at 193; 11/25/02 tr. at 159). Paul D. Perry, the man known to Van Grossi as the lead plaintiff in the litigation and settlement negotiations, (11/22/02 tr. at 193; 11/25/02 tr. at 159), has extensive knowledge of both the substance of the legal issues involved in the law suits and of the contents of the sealed settlement agreements. (11/22/02 tr. at 193). Grimm’s comparatively paltry knowledge of these matters, on the other hand, makes clear that his involvement was minimal. (11/20/02 tr. at 6-9). 12. Mr. Grimm was the public relations liaison for NAIL I during the lawsuits and had contact with the media regarding the progress of the litigation. (11/20/02 tr. at 6; 11/22/02 tr. at 193). 13. O’Donnell did not know that Mr. Grimm or Grimm Brothers Realty were plaintiffs in any of the NAIL I lawsuits. (11/26/02 tr. at 20). Sweeney was aware of the NAIL I lawsuits in March of 2000 and was aware that Grimm and Grimm Brothers Realty were plaintiffs in those suits. (11/22/02 tr. at 157). 14. Defendants were not named parties in any of the law suits brought by NAIL I and plaintiffs. Sweeney testified at a deposition and performed some data-gathering activity for the Borough solicitor’s office but was otherwise uninvolved in the litigation. (11/22/02 tr. at 157, 213). O’Donnell also testified at a deposition but was unaware of the content or details of the suits and was otherwise uninvolved in the litigation. (11/22/02 tr. at 60; 11/26/02 tr. at 20). Neither Sweeney nor O’Donnell had any role in answering pleadings, arguing the cases, participating in settlement negotiations or any other aspect of the litigation. (11/22/02 tr. at 213; 11/25/02 tr. at 158). Neither Sweeney nor O’Donnell was affected in any way by the settlement reached between the parties. (11/25/02 tr. at 158). 15. Perry has never felt he was retaliated against for his leading role in the NAIL I lawsuits by either O’Donnell or Sweeney. (11/22/02 tr. at 195). He has never felt he was retaliated against for being part of, or CEO of, NAIL I. (11/22/02 tr. at 196). He has never told anyone that he was targeted by code enforcement. (11/22/02 tr. at 197-98). 16. On April 6, 2000, Grimm Brothers Realty and tenants of 837 Swede Street brought an action in the Court of Common Pleas of Montgomery County challenging the condemnation of 837 Swede Street. The named defendants were the Borough of Norristown, Sweeney, Public Safety Director Russell Bono and Administrative Director Anthony Biondi. (Def.Exh.D-68). Sweeney knows he is a named defendant in that action. (11/22/02 tr. at 158). This action has not reached final resolution. (Def.Exh.D-68). The Basis for Claims of Retaliation for Exercising Right to Criticize Borough 17. NI has organized monthly cable broadcasts of public fora that address issues in the Borough. Mr. Grimm invited Defendant Sweeney to appear at one of these fora and make a presentation on the expansion of the code enforcement office. (11/20/02 tr. at 27). 18. Defendant O’Donnell did not know Grimm was a member of NI, nor even that NI existed. (11/26/02 tr. at 21). While O’Donnell was on the board of the fire department, the department hosted monthly or bi-monthly meetings of NAIL II at the firehouse because NAIL II’s normal meeting place, 837 Swede Street, was condemned. (11/21/02 tr. at 53-54; 11/26/02 tr. at 21). 19. Defendant Sweeney accepted Mr. Grimm’s invitation to make a presentation without reservation. (11/22/02 tr. at 212). We do not find credible Mr. Grimm’s claim that Sweeney was reluctant to appear and made negative comments about his appearance. (11/20/02 tr. at 27). 20. Mr. Grimm made public comments critical of the code enforcement policies of the Borough beginning only in 2001. (11/20/02 tr. at 37). The earliest such statements were made by Mr. Grimm in a newspaper article dated November 29, 2001 about his challenge to the use of county district attorneys to prosecute Nor-ristown budding code violations. (11/20/02 tr. at 38-39; PL Exh. P-3). Prior to his statements in the newspaper, Mr. Grimm’s public comments regarding Borough policy had been restricted to attempts to obtain and disseminate the Borough building codes and general laws through his position as chairman of the NI Civic Life Committee. (11/20/02 tr. at 18-25; PI. Exh. P-1, P-2; See Findings of Fact ¶ 21). Even Mr. Grimm characterizes his activities prior to the condemnation of 837 Swede Street not as “direct criticism” but rather as an effort to obtain and disseminate to the public the Borough building codes. (11/26/02 tr. at 125). Mr. Grimm made a public presentation to the Borough counsel on January 15, 2002 in which he criticized many Borough policies, including some of those related to code enforcement. (11/20/02 tr. at 39-40; PI. Exh. P-4). The Borough council studied Mr. Grimm’s complaints and issued its findings in a report dated April 9, 2002. (11/20/02 tr. at 41; PI. Exh. P-6). This report, while critical in some aspects of the code enforcement bureau, does not criticize it on the basis of intentional bias or selective enforcement. (Pl.Exh.P-6). 21.We find that Mr. Grimm did not have a prominent role in NI’s attempts to obtain the Borough codes and general laws. Epifanio was initially responsible for obtaining the general laws. (11/20/02 tr. at 19; 11/21/02 tr. at 165). Mayor DeAn-gelis attempted to put the general laws on a website completely unconnected to NI, and was aided by someone other than Grimm in that effort. (11/21/02 tr. at 175). Neither O’Donnell nor Sweeney has any responsibility over the general laws of Norristown. (11/21/02 tr. at 176). Grimm and Byler collaborated in their efforts to obtain the Borough codes and the Borough is cooperating in that effort. (11/21/02 tr. at 182). 837 Swede Street Condemnation 22. Grimm Brothers Realty’s 837 Swede Street Property was built approximately 150 years ago. (11/20/02 tr. at 48). It houses residential apartments on its second and third floors, commercial space on its first floor and a commercial/light industrial/warehouse space in its basement. (11/20/02 tr. at 48-50). 23. On March 7, 2000, 837 Swede Street suffered a major fire. (11/22/02 tr. at 204). 24. Sweeney was called to the fire at 4:00 A.M. When he arrived, the fire had been extinguished and Sweeney aided the fire fighters in the investigation of the cause of the fire. (11/22/02 tr. at 204). O’Donnell was called in to help fight the fire at 2:00 or 3:00 A.M., when he was already in bed, and he commanded the roof section of the fire-fighting effort. (11/26/02 tr. at 21). O’Donnell knew when he received the call that the burning building was owned by Grimm Brothers Realty, but he had no hesitation about helping to fight the fire. (11/26/02 tr. at 22). 25. The fire severely damaged apartment two, the roof over apartment two and, in combination with the water used to combat it, the entire building’s electrical system. (11/20/02 tr. at 52-53; Def.Exh.D-29, p. 10). The electric power to the building was shut off as a precaution on the orders of Fire Chief John DiNofí, and on March 7, 2000, Sweeney, acting as Fire Marshall, condemned the building for reasons of public safety. (11/22/02 tr. at 205, 206; Def.Exh.D-29, p. 19). 26. Sweeney’s decision to condemn 837 Swede Street was reasonable, justified and not based on any retaliatory motive against Grimm or Grimm Brothers Realty. (11/21/02 tr. at 107; 11/22/02 tr. at 123; 11/22/02 tr. at 213). 27. Sweeney’s letter of March 7, 2000 notified Mr. Grimm of the condemnation but did not indicate what would be required to lift the condemnation. (Def.Exh.D-29, p. 20). 28. On March 13, 2000, Sweeney notified Mr. Grimm by letter that, in order for the building’s electric power to be restored, Mr. Grimm would have to provide a certifícate from an electrical underwriter that the building’s entire electrical system was safe. (Def.Exh.D-29, p. 26). Sweeney’s letter required that the entire electrical system, from the basement to the upper floors, be inspected and certified. (11/25/02 tr. at 16). We do not find credible Mr. Grimm’s claim that the first time he understood that Sweeney was requesting certification of the entire electrical system, as opposed to only a portion thereof, was at trial when he was presented with this letter by his counsel. (11/20/02 tr. at 68; 11/21/02 tr. at 69). 29. In addition to the electrical certification, the March 13, 2000 letter also informed Mr. Grimm that in order to lift the condemnation, 1) he would be required to ensure that the individuals living in apartment number four were not comprised of more than three unrelated persons; 2) the apartments would need to be inspected to ensure damaged doors and windows had been properly repaired and fire extinguishers and smoke detectors were fully operational; 3) the basement area would need to be cleared of combustible and flammable materials or entirely separated from the first floor by a two-hour fire separation; and 4) a list of businesses operating out of the first floor, with contact information, would have to be provided to the Borough. (Def.Exh.D-29, p. 26). It is standard procedure for Sweeney to provide a written list of all the conditions that must be corrected to lift a condemnation imposed after a fire. (11/22/02 tr. at 208-09). 30. The electrical inspection by Gambi-no Electric, Inc. conducted on March 7, 2000 did not certify the safety of the entire electric system because it did not cover any apartment other than apartment two. (11/25/02 tr. at 17; Def.Exh.D-29, p. 189). Similarly, their inspection on March 17, 2000 only covered one house panel. (11/25/02 tr. at 111; Def.Exh.D-63). 31. The inspection by the Middle Department Inspection Agency of Gambino Electric, Ine.’s work on March 9, 2000 did not certify the safety of the entire electric system because, as an underwriter, MDIA could only inspect the work Gambino had actually performed, which did not cover the entire building. (11/20/02 tr. at 57; 11/25/02 tr. at 17, 44-45, 46 — 47; Def. Exh.D-29, p. 190). No cut-card by MDIA verifying the safety of the entire system was received into evidence. (11/25/02 tr. at 45 — 46). 32. Grimm knew as of March 14, 2000 that the Borough had not yet received a cut-card verifying the entire electrical sys-tern because he was so informed by Sweeney by letter on that date. (11/20/02 tr. at 72; 11/22/02 tr. at 211; Def.Exh.D-29, p. 28). Sweeney’s letter did not change or alter the conditions which Grimm needed to meet in order to have the condemnation lifted — it clarified that the remaining outstanding issues were the lack of a full-system electrical certification and the need to either remove all combustibles from the basement, in which case the need for a two-hour fire-rated separation would be eased, or install a two-hour fire-rated separation. (11/22/02 tr. at 211; Def.Exh.D-29, p. 29). 33. Sweeney warned Mr. Grimm that the Borough council candidate forum scheduled by NI for March 15, 2000 would have to be moved because the building remained condemned. (11/22/02 tr. at 211-12; Def.Exh.D-29, p. 29). He issued this warning not out of any desire to harm or punish NI or Grimm as a member of NI but rather because he did not want to inconvenience Borough council candidates who would be appearing for the meeting, given that they might soon be taking office. (11/22/02 tr. at 212, 214). 837 Swede Street Continued Power Shut-off Issues 34. On or about March 15, 2000, Grimm illegally tapped power from 839 Swede Street, through the use of extension cords and jumpers from one electrical box to another, for use at 837 Swede Street. (11/20/02 tr. at 69-70; 11/22/02 tr. at 208). Sweeney wrote Grimm a letter the same day warning him that this was illegal and that if he was found jumping the electrical power from 839 to 837 Swede Street again, power would be completely disconnected. (11/22/02 tr. at 208; Def.Exh.D-29, p. 30). Grimm, on behalf of Gambino Electric, applied for and received a permit to install a temporary 200 amp work panel, for the purpose of powering electrical equipment needed to repair 837 Swede Street, the very same day. (11/20/02 tr. at 100; 11/22/02 tr. at 208; Def.Exh.D-29, p. 30, 147, 148). This panel was allowed so that Grimm could perform necessary repairs, not for the purpose of powering apartments for tenants, and the permit specifically states that the work panel may not be augmented. (11/25/02 tr. at 18, 19; Def. Exh.D-148). Sweeney wrote to Tony Baz-zani, an Operations Planning & Analysis manager at PECO Energy Company, on May 18, 2000 to inform him that Grimm had been found jumping electric from 839 Swede to 837 Swede, that a temporary panel had been permitted for 837 Swede and that despite this situation, 837 Swede remained condemned and power to it should remain off. (11/25/02 tr. at 20; Def. Exh.D-29, p. 55). 35.On September 15, 2000, a PECO technician called Sweeney to tell him that he was attempting to check the meters at 837 Swede Street but that a truck had been parked in front of the meters. (11/25/02 tr. at 24). Sweeney went to the property and found that there was indeed a truck blocking the meters. (11/25/02 tr. at 24; Def.Exh.D-29, p. 115-16). He also discovered that in addition to the meter for the single permitted temporary work panel, someone had installed an additional four meters that were powering the apartments in the building. (11/25/02 tr. at 24-25; Def.Exh.D-29, p. 116). Neither the Borough nor PECO had any knowledge of these four meters. (11/25/02 tr. at 26). Sweeney ordered PECO to remove the meters. (11/25/02 tr. at 26-27). PECO issued shut-off orders on September 18, 2000 and cut power to all four meters. (11/20/02 tr. at 148; Def.Exh.D-29, p. 105-07). Sweeney visited the property again on September 19, 2000 and verified that the meters had been removed. (11/25/02 tr. at 26; Def.Exh.D-29, p. 111-12, 151). Sweeney did not order the meters shut off out of a desire to retaliate against Grimm or Grimm Brothers Realty for their involvement in the NAIL I lawsuits, Grimm’s suit to lift the condemnation of 837 Swede Street or Grimm’s public comments regarding Borough code enforcement policies, but rather because he knew that their installation was illegal. (11/25/02 tr. at 26, 78). 86. The power to the temporary work panel installed on March 15, 2000 was cut on or about October 11, 2000. (11/20/02 tr. at 149). The electrical power was terminated because Mr. Grimm’s permit for a temporary work panel had expired. (PI. Exh.P-91). Sweeney did not order PECO to terminate either the electricity or the gas to 837 Swede Street on October 11, 2000. (11/25/02 tr. at 77; Def.Exh.D-29, p. 149). 37.Electrical underwriters deliver cut-cards verifying their inspections to the building inspector, not to Sweeney. (11/25/02 tr. at 60). Sweeney forwarded all of Grimm’s correspondence regarding the electrical system to Lynn Bixler and responded to it based on what she told him. (11/25/02 tr. at 60, 76, 77-78). The authority to order the building’s power turned back on rested with Lynn Bixler, not with Sweeney. (11/25/02 tr. at 63, 64, 67). His responses to Grimm’s correspondence, that the Borough had not received any cut-card verifying the entire electrical system, were based on what Lynn Bixler told him. (11/25/02 tr. at 67). To the extent that he ever stated that he thought the electrical issues had been resolved, (11/25/02 tr. at 63; PI Exh. P-59, p. 24), he was basing the information on what he thought Lynn Bixler had told him. (11/25/02 tr. at 63, 64). 38. In fact, defendant Sweeney did not receive notification that the Middle Department Inspection Agency had provided an electrical cut-card verifying the entire electrical system to the building inspector until November 27, 2000. (11/25/02 tr. at 28; Def.Exh.62). We do not find credible Mr. Grimm’s testimony that MDIA informed him that it had transmitted a cut-card certifying the entire electrical system to the Borough before that time (11/20/02 tr. at 59, 69-70; Def.Exh.D-29, p. 27). 39. Sweeney acted within a reasonable time after hearing from Bixler to inform PECO and Mr. Grimm by letter dated December 16, 2000 that the electric power could be restored to the building. (11/25/02 tr. at 60; Def.Exh.29, page 151). By a letter dated December 19, 2000, defendant Sweeney reminded Mr. Grimm within a reasonable time that he would be required to contact PECO directly to have the power and gas restored to the building; he acted out of a concern that Mr. Grimm might not realize that action on his part was required. (11/25/02 tr. at 29-30; Def. Exh.29, page 155). Mr. Grimm had, in fact, already requested that PECO restore power by a letter dated December 16, 2000. (Def.Exh.D-29, p. 154). 40. Sweeney did not terminate the power to 837 Swede Street or keep the power from being restored out of a desire to retaliate against Grimm or Grimm Brothers Realty for the NAIL I lawsuits, Grimm’s suit to lift the condemnation or Grimm’s public comments about code enforcement policies. (11/25/02 tr. at 30). His decision was based on safety concerns. (11/25/02 tr. at 61). 41. Sweeney had no role in the termination of gas service to 837 Swede Street. (11/25/02 tr. at 77). 837 Swede Street — August 30, 2000 Settlement Negotiations 42. Grimm challenged the condemnation at an administrative appeal hearing on or about April 4, 2000, which he lost. (11/20/02 tr. at 110-112). 43. He then brought an action on April 6, 2000 in the Court of Common Pleas for Montgomery County to lift the condemnation. (Def.Exh.D-68). 44. Grimm filed a motion for a temporary injunction lifting the condemnation, which was heard on May 25, 2000 before Judge Calvin S. Drayer, Jr. (11/21/02 tr. at 47; 11/25/02 tr. at 160; Def.Exh.D-64). Grimm presented his side of the issues fully. (11/25/02 tr. at 160). The judge denied Grimm’s motion because he found that he was unlikely to succeed on the merits. (11/25/02 tr. at 160). 45. Grimm filed a second motion for a temporary injunction lifting the condemnation. This motion was heard by Judge Albert R. Subers on July 17, 2000. (11/21/02 tr. at 51; 11/25/02 tr. at 161; Def.Exh.D-64). Grimm had a full opportunity to present witnesses and evidence at this hearing. (11/25/02 tr. at 161). As with the previous motion, Judge Subers denied Grimm’s motion. (11/21/02 tr. at 51). 46. Grimm filed a third motion for a temporary injunction on August 29, 2000. (Def.Exh.D-68). This motion has not yet been heard. (11/25/02 tr. at 161). 47. On August 30, 2000, Van Grossi and Grimm’s then-counsel Theodore Thompson, Esq. held a conference in chambers with Judge Richard L. Lowe. (11/22/02 tr. at 6; 11/25/02 tr. at 162-63). At that conference, Thompson was provided three options which would allow the condemnation to be lifted: 1) give up the use of the basement space as a warehouse/shop permanently, 2) install a sprinkler system in the basement, or 3) install a two-hour fire-rated separation between the basement and the first floor. Any plan to install a sprinkler system would require detailed drawings and approval by the Fire Marshall, defendant Sweeney. Similarly, a plan to install a two hour fire-rated separation would require the submission of plans and approval by Sweeney. (Def.Exh.D-10). 48. Thompson told Van Grossi that his client would agree to installing a sprinkler system and would present the necessary paperwork to the Borough and complete the installation in a timely fashion. (11/22/02 tr. at 10; 11/25/02 tr. at 162). 49. The agreement reached between the Borough and Grimm was that Grimm would submit the necessary paperwork detailing how the sprinkler system would be installed, that once his plan was approved by Sweeney he would install the sprinkler system, and at that point the condemnation order would be lifted. (11/25/02 tr. at 162, 166-67). No agreement was made that a simple commitment to install a sprinkler system, made that day by Grimm through counsel, would result in the lifting of the condemnation. (11/25/02 tr. at 163). 50. Within moments after the meeting between his counsel and the Borough, Grimm attempted to alter the arrangement in conversation with Van Grossi. (11/25/02 tr. at 164). According to Thompson, “there’s always a lot of back and forth with Gary” and Grimm was “tweaking” the agreement, whereas the Borough’s position was constant. (11/22/02 tr. at 11, 14-15). 51. Grimm knew perfectly well that no agreement to lift the condemnation had been reached. His fax to Van Grossi on August 31, 2000, (Def.Exh.D-9), included two options, rather than the one his attorney had represented Grimm had agreed to, and neither was identical to the one Thompson had agreed to on his behalf. This fax is, in fact, styled as an agreement and has a space for Van Grossi’s signature on behalf of the Borough; neither Van Grossi nor any other representative of Norristown ever signed Grimm’s fax, and Grimm therefore must have known that no agreement had been reached. (11/25/02 tr. at 165). Grimm was also notified, through his attorney Thompson, that whatever Grimm thought the arrangement was, as expressed in his August 31, 2000 fax, it was not the same as Van Grossi’s understanding. (11/21/02 tr. at 81; 11/22/02 tr. at 17; Def.Exh.D-10). In fact, Thompson told Grimm that “if he just left [the agreement] alone, and went ahead with the sprinkler system commitment, ... the condemnation would be lifted.” (11/22/02 tr. at 17 (emphasis supplied)). Thompson did not move to enforce the agreement because negotiations as to the sprinkler specifications were ongoing. (11/22/02 tr. at 12). Grimm knew that an order entering the agreement would be required, given that he had previously visited the courthouse looking for just such an order. (11/26/02 tr. at 91). 837 Swede Street — September 20, 2000 Citation for Holding a Meeting in Condemned Building 52.On September 20, 2000, O’Donnell was driving by 837 Swede Street on his way home when he noticed that there were people entering the building. (11/26/02 tr. at 59). He contacted his CLEAN team supervisor, Detective Lieutenant Kevin McKeon of the Norristown police department. (11/20/02 tr. at 79; 11/26/02 tr. at 69). McKeon happened to be in the neighborhood and decided to handle the call personally. (11/20/02 tr. at 79). McKeon and O’Donnell both knew the building was still condemned as of that date. (11/20/02 tr. at 80; 11/26/02 tr. at 50). McKeon and O’Donnell discovered that Grimm was in the middle of conducting a meeting. (11/20/02 tr. at 80-81; 11/22/02 tr. at 50). McKeon had no idea what the meeting was about or which organization was conducting it. (11/20/02 tr. at 82). As O’Donnell’s supervisor, McKeon ordered him to write a non-traffic citation to Grimm for allowing people to occupy a condemned building. (11/20/02 tr. at 81, 88; 11/22/02 tr. at 50). McKeon also asked everyone to vacate the building and the meeting participants did so “very nice[ly]” and, with one exception, without objection. (11/20/02 tr. at 82 83; 11/21/02 tr. at 168,171). 53.We do not credit Grimm’s claim that he believed the condemnation had been lifted as a result of the August 30, 2000 conference between Van Grossi and Thompson. In particular, we do not find credible his claim that Thompson only shared Van Grossi’s September 5, 2000 fax, (Def.Exh.D-11), which clearly states that the condemnation has not been lifted, some time after September 20, 2000. (11/21/02 tr. at 82). In any event, the condemnation was still in effect on September 20, 2000. (See Findings of Fact ¶¶ 49-51). 54. O’Donnell did not issue the citation for allowing a condemned building to be occupied out of a desire to retaliate against Grimm or Grimm Brothers Realty for their participation in the NAIL I lawsuits or against Grimm for his public comments regarding code enforcement policies. He issued the citation because his supervisor directed him to, because he knew the building was condemned and because it was clear that Grimm was allowing it to be occupied. (11/26/02 tr. at 50). 837 Swede Street — September 26, 2000 Citation for Allowing Tenants to Occupy a Condemned Building 55. Dawn Castro was hired by Grimm in June of 2000 to perform various duties for Grimm Brothers Realty. (11/25/02 tr. at 114, 120). She worked for him for three days. (11/25/02 tr. at 114, 120). Grimm asked Castro, who is fluent in Spanish, (11/25/02 tr. at 114), to act as a translator between him and several Spanish-speaking tenants. (11/25/02 tr. at 118). Grimm asked Castro to tell at least one family that they could move back into 837 Swede Street (from the Colonial Hotel, where they had been staying since the fire, (11/25/02 tr. at 121)) but that if anyone asked them, they were to say that Grimm did not know they were living there. (11/25/02 tr. at 118). Castro witnessed these tenants moving their belongings into 887 Swede Street that day and understood that they were going begin living there again. (11/25/02 tr. at 118,121). 56. Castro’s other duties required her to work inside 837 Swede Street. There were boards over some of the ground floor windows, and Grimm told her to stay away from the windows because he was not supposed to be inside the building. (11/25/02 tr. at 119). Grimm described the building’s continued condemnation as “some technicality.” (11/25/02 tr. at 119). We do not find credible Grimm’s statement that “I have no idea where she got [her statements regarding what Grimm asked her to interpret] from. There is nothing that would be of the intent of what she is trying to say that I can in any reason justify me making a statement like that.” (11/26/02 tr. at 118). 57. On September 26, 2000, when O’Donnell had failed to find Mr. Grimm at a rescheduled inspection for 857 Cherry Street, (see Findings of Fact ¶ 125), he went to 837 Swede Street to find him. (11/26/02 tr. at 51). After knocking on the door, O’Donnell noticed that another code officer, Rob Durant, had pulled up to the curb. (11/26/02 tr. at 61). O’Donnell spoke to him briefly and then went around to the side door to see whether Grimm was in his office. (11/26/02 tr. at 61). While O’Donnell was at the door to Grimm’s office, Durant observed tenants entering through the front door. (11/26/02 tr. at 52, 62). At that point, other code enforcement officers were called and they entered the building and took photographs. (11/26/02 tr. at 52, 62). If the tenants were ordered out of the building by 5 p.m., O’Donnell had nothing to do with that order being given. (11/26/02 tr. at 62-63). 58. Later in the day, Sweeney asked O’Donnell to return to the property with PECO and members of the CLEAN team and stand by while the power was terminated to the apartments. (11/26/02 tr. at 52-53, 62). It was at that point that O’Donnell and Sergeant William Tims, his supervisor on the CLEAN team that day, realized that there were still tenants in the building. (11/26/02 tr. at 63). Tims ordered O’Donnell to find them alternative housing, which he did by calling various landlords he knew as well as the Red Cross. (11/20/02 tr. at 90; 11/26/02 tr. at 63). O’Donnell chose to call David Sarini (ph), the vice-president of NAIL and a Norristown landlord, not to “send a message” but rather because he wanted to find alternative housing for the displaced tenants, who included a pregnant woman among them. (11/26/02 tr. at 64). We do not find credible Grimm’s claim that he had to find alternative housing for three families (11/26/02 tr. at 107). 59. Tims and O’Donnell both entered 837 Swede when they realized that there were still tenants inside. They inspected the residential units and discovered two families living in each of apartments three and four. (11/20/02 tr. at 85-86). One family was cooking dinner (11/20/02 tr. at 86-87). It was clear to both Tims and O’Donnell, as it is to us, that people were living in both apartments. (11/20/02 tr. at 86, 87-90; 11/26/02 tr. at 53; Def.Exh.D-40). Tims knew the building remained condemned. (11/20/02 tr. at 89). He therefore ordered O’Donnell to write a non-traffic citation for Grimm Brothers Realty for allowing a condemned building to be occupied. (11/20/02 tr. at 89-90; 11/26/02 tr. at 53). O’Donnell issued a citation to Grimm that day, of which Grimm was found guilty by a district justice on October 17, 2000. (11/26/02 tr. at 53; Def.Exh.D-42). 60. Grimm knew that tenants were living in apartments at 837 Swede Street on September 26, 2000. (11/21/02 tr. at 83). In fact, he told them that the condemnation had been lifted even though he knew that it had not. (11/21/02 tr. at 83). Grimm admits that he started renting out apartments at 837 Swede Street in August in anticipation of reaching an agreement on August 30, 2000. (11/20/02 tr. at 163— 64). By September, he knew that some of the displaced tenants had moved back into the building. (11/20/02 tr. at 163.) In fact, at least one tenant had moved back in on August 30, 2000. (11/26/02 tr. at 110). The reason Grimm did not go to 837 Swede Street while the code enforcement officers were there is because he knew that he was illegally allowing tenants to occupy the building. 61. O’Donnell did not write the citation for the purpose of retaliating against Grimm or Grimm Brothers Realty for their role in the NAILS I lawsuits or for Grimm’s public comments regarding code enforcement policies. Instead, he wrote the citation because he knew the building was condemned and there were people illegally living in it. (11/26/02 tr. at 53). 837 Swede Street — The Sprinkler Plan 62. Grimm never submitted a complete or satisfactory sprinkler plan to the Borough. Although he made several attempts, (11/20/02 tr. at 147; 11/22/02 tr. at 49-50; Def.Exh.D-29, p. 80, 89), he repeatedly ignored Sweeney’s detailed responses to each attempt as to what would be required to obtain approval. (11/22/02 tr. at 54, 238-239; Def.Exh.D-29, p. 88, 98, 130). Grimm was not dealing in good faith from the very beginning; when he submitted his first sprinkler plan, he designed it for the purpose of the Borough “saving face.” (11/22/02 tr. at 146). 63. It was not ultimately Sweeney’s decision whether the sprinkler plan met the required codes. Sweeney submitted all sprinkler plans to All States Design, a state-certified engineering company that reviews fire suppression system plans. (11/22/02 tr. at 240-41, 242). Because All States Design charges the Borough for every request to review such plans, Sweeney could not submit Grimm’s incomplete or facially unsatisfactory proposals for review. (11/22/02 tr. at 240-41). 64. Usually, landlords will utilize the services of an expert contractor knowledgeable in the design of National Fire Protection Association pamphlet-13 (NFPA-13) compliant systems. (11/22/02 tr. at 240). Grimm has no expertise in sprinkler system design. (11/22/02 tr. at 54-55). Although Grimm claims to have hired someone with experience designing sprinkler systems to help him prepare his applications, we do not .believe that this person had the necessary expertise. 65. Sweeney did not refuse Grimm’s applications for approval of his sprinkler design out of a desire to retaliate against Grimm because of his involvement in the NAIL I lawsuits, his suit to lift the condemnation or because of his public comments regarding code enforcement. (11/22/02 tr. at 242-43). Instead, he could not approve Grimm’s proposals because Grimm never sent a complete or satisfactory plan that could be reviewed by All States Design. (11/22/02 tr. at 241^42). 837 Swede Street — October 4, 2001 Citations for Allowing Tenants to Occupy a Condemned Building and for Using Extension Cords as a Permanent Source of Power 66. In early October 2001, Detective Bernstiel, in his capacity as coordinator of the CLEAN team and a detective in the Montgomery County Detectives Office, received a complaint from a woman named Julia De La Cruz Lopez that she and several other tenants were occupying a condemned building at 837 Swede Street. On October 3, 2001, Bernstiel drove to 837 Swede Street and, from an alley behind the building, observed lights on in at least one window and the flicker of a television through another window. (11/25/02 tr. at 129). This substantiated his belief that there were people living illegally in the building. (11/25/02 tr. at 130). The following day, he took a statement from Lopez and collected some documents from her. (11/27/02 tr. at 130). 67. Based on his interview with Lopez, Bernstiel told O’Donnell and Sweeney that he had been told by a complainant that there were people living at 837 Swede Street and paying rent to Grimm, that there were electrical extension cords being used to provide power to the apartments, which Bernstiel believed to pose an immediate hazard, and that there were children living in the building. (11/25/02 tr. at 134). Bernstiel also told them that he wanted, on this basis, to conduct an immediate inspection using the CLEAN team at 837 Swede Street. (11/25/02 tr. at 135). 68.Bernstiel, Sweeney, O’Donnell and members of the CLEAN team conducted an inspection on October 4, 2001. (11/25/02 tr. at 137; 11/26/02 tr. at 55). They discovered extension cords lying haphazardly throughout the upper hallway, leading into each of the three apartments. The main cord powering the extension cords was coming from apartment two. It was an improperly constructed male-male cord, plugged into a junction box in the hallway. This was extremely dangerous, as only unplugging one end would leave the cord powered and, because of the exposed contacts on that unplugged male end, capable of delivering a shock very easily. (11/25/02 tr. at 37, 139; Def.Exh.D-29, p. 174-75, 177-78). In both apartments two and three, the cords were powering electrical devices such as a box fan, a microwave oven, clock radios, lights, a convection oven, radiators and televisions (11/25/02 tr. at 36, 137; Def.Exh.D-29, p. 176, 181-82, 184). In addition, in both apartments, there were other clear signs of people living there, including made beds, fresh food, pans in the sink, couches and chairs. (11/25/02 tr. at 37-38; Def.Exh.D-29, p. 171, 173, 179-81). Indeed, in at least one apartment, there was cooking actually being done by the family that lived there while the inspection was going on. (11/25/02 tr. at 38). There was no answer at apartment one, but extension cords entered the apartment under the front door. (Def.Exh.D-29 at 187-88). 69. In addition, there was tar paper over the windows in apartment two. (11/25/02 tr. at 37, 137, 143-44; Def. Exh.D-29, p. 178-80). The television Bernstiel had seen being watched on October 3 was in a different apartment. (11/25/02 tr. at 144). Sweeney was told by a tenant that Grimm had told them to put the tar paper on the windows to prevent detection of their presence from outside. (11/22/02 tr. at 37). 70. Sweeney, O’Donnell and Bernstiel observed the extension cords, tar paper, and signs that people were living in the apartments. Sweeney knew that using extension cords as a permanent power source is both dangerous and a code violation, and that Grimm had previously been warned against using extension cords as a permanent power supply. (11/25/02 tr. at 36, 38; see Findings of Fact ¶ 34). He also knew that it was illegal for the building to be occupied because it was condemned. (11/25/02 tr. at 35). 71. Bernstiel knew that there was a hispanic family living in apartment two. (11/25/02 tr. at 144). When Bernstiel spoke to Grimm on that day, Grimm never told him he had been living in that apartment. (11/25/02 tr. at 146). Bernstiel was told on October 4 by several tenants that Grimm had accepted rent from them. (11/25/02 tr. at 149). This includes the statement of Ms. Diane Folger, who claimed she was living in apartment three and that she had been watching television the previous evening. (11/25/02 tr. at 153). Bernstiel allowed her to enter 837 Swede Street to retrieve her belongings. (11/25/02 tr. at 153). Bernstiel gave the various documents he had obtained from the tenants to Sweeney and also told him that Grimm had tried to collect rent from the tenants the previous day. (11/25/02 tr. at 149). 72. We find that there were, in fact, tenants illegally occupying 837 Swede Street, and that extension cords were illegally being used to power those tenants’ apartments. We do not find Grimm’s claims, that he did not know tenants were illegally occupying his building, (11/20/02 tr. at 33-34; 11/22/02 tr. at 31-32; 11/26/02 tr. at 93-97), or that extension cords were being used to provide permanent power for them, (11/20/02 tr. at 20; 11/26/02 tr. at 86, 88, 98), credible. O’Donnell wrote a citation to Grimm Brothers Realty for allowing tenants to occupy a condemned building. (11/26/02 tr. at 55-56; Def. Exh.D^42). Sweeney wrote Grimm Brothers Realty a citation for using extension cords as a source of permanent power. (11/25/02 tr. at 38-39). O’Donnell and Sweeney did so not out of a desire to retaliate against Grimm or Grimm Brothers Realty for their involvement in the NAIL I lawsuits, for Grimm’s suit to lift the condemnation or for Grimm’s public comments regarding code enforcement. Instead, they did so because it was clear to them, as it is to us, that there were tenants illegally living in a condemned building and because Grimm was allowing these tenants to use extension cords as a permanent source of power. (11/25/02 tr. at 38-39; 11/26/02 tr. at 55-56). 837 Swede Street — The Two-Hour Fire-Rated Separation Requirement 73. On April 26, 1999, 837 Swede Street was inspected by a Borough code enforcement officer. The inspection report required Grimm to fill in the holes in the basement ceiling with fire-rated material. (11/25/02 tr. at 50; Def.Exh.D-29, p. 2, 7). Grimm never made all of these repairs, but did patch some of the holes with new drywall (11/22/02 tr. at 178; 11/25/02 tr. at 53; 11/26/02 tr. at 114, 124). If he had attempted to obtain permits to complete the repairs, Sweeney would have told him that he was required to replace the entire ceiling with a two-hour fire-rated separation. (11/25/02 tr. at 51). 74. On March 7, 2000, when Sweeney inspected 837 Swede Street following the fire, he found that the basement ceiling had penetrations in it and that one section of the basement, the “electric room,” had no ceiling at all. (11/22/02 tr. at 177, 181, 217-18; 11/25/02 tr. at 53, 82; Def.Exh.D-29, p. 66-67C). 75. Sweeney knew then that Grimm Brothers Realty had purchased the building in 1980 and that the zoning application Grimm filed stated that Grimm would convert the second floor rear area, previously a meeting room and banquet hall, into two apartments. (11/22/02 tr. at 185, 218-219; 11/25/02 tr. at 55; PI. Exh. P-94). Sweeney believed that the ceiling, made of plaster lathe, had been required by earlier building codes because “people don’t just go and put some sort of plaster lathe ceilings in all basements.” (11/22/02 tr. at 176, 181). He believed the plaster lathe, if unbroken by penetrations, would provide up to 45 minutes of fire-rated protection. (11/22/02 tr. at 175-76; 11/25/02 tr. at 54). 76. Sweeney believed then, and continues to believe, that Grimm broke through parts of the ceiling when he installed the plumbing, electric and heating lines to the two new apartments he installed after his zoning application was approved. (11/22/02 tr. at 218-19; 11/25/02 tr. at 81). Sweeney believed that the penetrations in the ceiling had been made within the previous ten to fifteen years. (11/25/02 tr. at 8, 54). He also believed then, and continues to believe, that there was once a fire-rated separation between the electric room and the rest of the basement, such that the electric room did not require a ceiling, but that Grimm removed that fire-rated door. (11/22/02 tr. at 177; 11/25/02 tr. at 82, 91). 77.Sweeney believed then, and continues to believe, that the 1981 BOCA Building Code would require a two-hour fire-rated separation between the basement and the first floor if the building were erected today. (11/22/02 tr. at 217-18, 221, 225-27). He also believed then, and continues to believe, that if an alteration is made to a structural part of a building, which includes a basement ceiling, the entire part (i.e. the entire basement ceiling) must be brought into compliance with the current BOCA Building Code through the application of the applicable Existing Structures Code. (11/22/02 tr. at 179, 217-221). Grimm believed then, and continues to believe that the 1981 Existing Structures Code (incorporated in the 1981 BOCA Building Code) had been adopted at the time Grimm made the penetrations in the basement ceiling. (11/22/02 tr. at 219, 221; 11/25/02 tr. at 8). Sweeney also believed then, and continues to believe, that either the 1978 Fire Prevention Code or the 1967 BOCA Budding Code contained the identical requirement that any alteration of a structural part would require the entire structural part to be brought up to code. (11/22/02 tr. at 219; 11/25/02 tr. at 10). Sweeney’s beliefs were bolstered by defense expert Rosen’s findings, who issued them in July, 2001. Rosen found that there was a separation affording some fire protection in the basement ceding. (11/22/02 tr. at 137). He found that the ceding had been penetrated by piping and ducting when the first floor was converted. (11/22/02 tr. at 130-31, 144, 151). He agreed with Sweeney that the existing structures code requires that whenever an element of a building is altered, including a ceiling, the element must be brought up to the standards laid out in the modern Building Code. (11/22/02 tr. at 147). Because he could see that the ceiling had been altered, Rosen found that the ceiling had to be replaced with a two-hour fire-rated separation. (11/22/02 tr. at 146, 149). 78. Sweeney believed then and continues to believe that the 1981 Existing Structures Code affords him flexibility in approaching problems involved with bringing grandfathered buildings up to code as alterations are made. (11/22/02 tr. at 223-24; 11/25/02 tr. at 59). That is why Sweeney provided Grimm the three options of 1) emplacing a 2-hour fire-rated separation in the basement ceiling, 2) installing an approved sprinkler system or 3) abandoning the commercial/warehouse/shop use he was making of the basement so that a two-hour separation would no longer be required. (11/22/02 tr. at 224; 11/25/02 tr. at 57, 59, 75). 79. The Borough adopted the 1981 BOCA Basic Building Code (“1981 BBC”) on December 1, 1982. (11/25/02 tr. at 5-6). The 1981 BBC covers existing structures, and requires that whenever an alteration or repair is made to an existing structure, the alteration must comply with the the standards applicable to a new building. BBC 100.2,103.0. This is analogous to the 1987 Existing Structures Code (“1987 ESC”), adopted by the Borough on April 4, 1987 (Def.Exh.D-27), section 102.1, which requires that any repair or alteration to an existing structure must be done according to the modern applicable code. 1987 ESC 102.1; (11/21/02 tr. at 108-109; 11/22/02 tr. at 221) The building, if built today, would require at least a two-hour fire-rated separation between the ceiling and the first floor. (BBC Table 313.1.2; 11/21/02 tr. at 145-146 (Def.Exh.Scipione); 11/22/02 tr. at 124 (Def. Expert Rosen); 11/22/02 tr. at 179 (Sweeney); Def.Exh.D-26, p. 12). 80. We find that Grimm did, in fact, make the penetrations in the basement ceiling in 1983 or 1986, when he, respectively, repaired the heating and electrical systems in the basement, and converted the second floor meeting room and banquet hall to apartments. (Def.Exh.D-65, D-66). Grimm’s claim that he began working on converting the second floor space to apartments before he obtained zoning approval to do so, in December 1981, (Def.Exh.D-66), or immediately thereafter, (11/26/02 tr. at 81, 85), is not credible. Although he specifically remembers installing the shelving referred to in the December 29, 1983 permit to do “gen. repairs basement elec, heating, shelving,” Grimm claims not to recall what heating or electrical work he did, (11/26/02 tr. at 84), but at the same time asserts that the heating and electrical work was unrelated to the apartment conversions, (11/26/02 tr. at 81); this undermines his credibility. His evasive answer as to whether the 1983 permit was the first permit he obtained after zoning approval, “this is the only one I have in my records,” (11/26/02 tr. at 82) further damages his credibility. When confronted with the August 25, 1986 permit, to do “Gen. renovation (into offices)” at an estimated cost of $50,000, Grimm at first agreed that the permit was for conversion of the second floor Knights of Columbus space to apartments at 837 Swede Street, (11/26/02 tr. at 82), and then changed his mind, claiming the permit was issued for 839 Swede Street, despite its handwritten notation, and his own previous recollection, that it was actually for 837 Swede Street. (11/26/02 tr. at 83). However, Grimm admitted that 839 Swede Street does not have any offices. (11/26/02 tr. at 83). A moment later, under questioning by his own attorney, Grimm changed his mind yet again, and claimed that he had indeed acted on this permit and made renovations into offices at 839 Swede Street, despite the fact that he had just agreed there are no offices at 839 Swede Street. (11/26/02 tr. at 84). This exchange severely damaged Grimm’s credibility on this issue. We similarly do not credit Grimm’s claim, made at the end of the trial, that he installed the electrical and plumbing conduits required for the new apartments only in the electrical room, which never had a ceiling. (11/26/02 tr. at 112-13). 81. Even if Grimm did not make the penetrations after 1981, when the 1981 BBC was adopted, we find that Sweeney believed and was reasonable in believing that he had done so after 1981. This is particularly true in light of the fact that Grimm had made alterations to the ceiling in 1999, when he attempted to comply with the April 26, 1999 inspection report by patching some of the holes in the ceiling with new drywall. (11/26/02 tr. at 114-15). Grimm also admits to having added one layer of drywall in the electric room in May, 2000. (11/26/02 tr. at 115-16). 82. We find that Sweeney based his requirement that Grimm either install a two-hour fire-rated separation or an approved sprinkler system, or permanently cease using the basement as a warehouse and shop, on his beliefs, which were reasonable, that Grimm had made penetrations in the ceiling and that the existing structures code required the ceiling to be brought up to modern standards. He did not base this requirement on a desire to retaliate against Grimm or Grimm Brothers Realty for their involvement in the NAIL I lawsuits, for Grimm’s suit to lift the condemnation or for Grimm’s public comments regarding Borough code enforcement. (11/22/02 tr. at 179, 213, 234; 11/25/02 tr. at 48,106). 837 Swede Street — April 19, 2000 Citation for Allowing Workers to Occupy a Condemned Building 83. Defendant Sweeney and the Borough budding inspector, Lynne Bixler, inspected 837 Swede St. on April 19, 2000. (11/20/02 tr. at 114; 11/22/02 tr. at 162). Gary Grimm was already at 837 Swede when they arrived, and he made them wait while he finished a business-related phone conversation. (11/22/02 tr. at 162,163). 84. Besides Mr. Grimm, there was a female secretary, wearing a dress, and a man entering data on a computer. (11/20/02 tr. at 115; 11/22/02 tr. at 162-63; 11/22/02 tr. at 236). In addition, Sweeney found two individuals who claimed to be in Mr. Grimm’s employ but who were, we find, clearly living in apartment number four. (11/22/02 tr. at 236; 11/25/02 tr. at 94-95). 85. Mr. Sweeney believed the men were living in apartment four because he found clothing drying over the shower rod in the bathroom and shoes next to a made bed in the bedroom and because the window the men were allegedly repairing had already been repaired and showed no evidence of requiring further work. (11/22/02 tr. at 236; 11/25/02 tr. at 95). 86. Sweeney knew that Mr. Grimm was carrying out business at 837 Swede because every fax sent to him by Mr. Grimm had come from the fax machine at that address. (11/25/02 tr. at 101). Mr. Grimm has admitted that he is, in fact, using 837 Swede St. to conduct business. (11/21/02 tr. at 68; 11/22/00 tr. at 29-30). He has not received permission from the Borough to do so. (11/21/02 tr. at 68). 87. In Sweeney’s experience as a code enforcement officer, he has never seen a landlord use a condemned space for records reconstruction; instead, landlords typically relocate records to a safe location and carry out reconstruction efforts there. (11/22/02 tr. at 175; 11/25/02 tr. at 100, 103). He believed that the secretary and data entry clerk were conducting business. (11/22/02 tr. at 235-36; 11/25/02 tr. at 97-98). We do not find credible Mr. Grimm’s testimony that they were helping him to salvage business records. (11/20/02 tr. at 115). 88. Mr. Sweeney did not warn Mr. Grimm that he was planning to cite him for the non-traffic violation of allowing a condemned building to be occupied and did not warn Mr. Grimm that the office workers should not be on the premises. (11/20/02 tr. at 118; 11/25/02 tr. at 104-105). However, Mr. Grimm knew quite well that it was illegal for him to allow office workers or tenants to occupy 837 Swede Street because he had been notified over and over again that the building remained condemned and could not be occupied. (11/22/02 tr. at 164, 235; 11/25/02 tr. at 100; Def.Exh.D-1, D-2, D-3, D-4). 89. Mr. Sweeney did not ask the workers what they were doing because he was shocked that Mr. Grimm was so brazen as to conduct business on the very day of an inspection and because it was obvious to him, as it is to us, what those workers were about. (11/22/02 tr. at 164; 11/25/02 tr. at 99). 90. Mr. Sweeney issued a non-traffic citation for occupying a condemned building to Mr. Grimm on April 19, 2000. (Def.Exh.D-5). Mr. Sweeney knew that a court would eventually decide whether Mr. Grimm was guilty or not guilty of the offense, but he believed that Mr. Grimm was, in fact, guilty. (11/22/02 tr. at 170, 236). 91. The citation was later dismissed after a trial at which Mr. Sweeney testified. (11/20/02 tr. at 117). 92. Mr. Sweeney did not issue the citation out of a desire to retaliate against Grimm or Grimm Brothers Realty for their involvement in the NAIL I lawsuits, for Grimm’s suit to lift the condemnation or for Grimm’s public comments regarding Borough code enforcement policies. (11/22/02 tr. at 174, 237). Instead, Sweeney issued the citation because he believed a violation had occurred. (11/22/02 tr. at 236). 837 Swede Street — April 30, 2000 Citation for Entering a Condemned Building 93. On April 30, 2000, defendant Sweeney was driving by 837 Swede Street when he saw Mr. Grimm enter the building. (11/22/02 tr. at 170). 94. Three factors led Sweeney to conclude that Mr. Grimm was not entering 837 Swede Street for the purpose of conducting work for which he had a permit— April 30, 2000 was a Sunday, Mr. Grimm was not wearing work clothing and Mr. Grimm had his dog with him. (11/22/02 tr. at 170-71, 236-37). 95. Sweeney issued a non-traffic citation for occupying a condemned building to Mr. Grimm. (11/22/02 tr. at 170; Def. Exh.D-7). 96. Sweeney believed that Mr. Grimm was entering 837 Swede Street for a purpose other than construction or rehabilitation of the premises pursuant to a permit obtained from the Borough. (11/22/02 tr. at 171, 237). It was on this basis that he issued the citation, even though he acknowledges that Mr. Grimm could have been entering the building for a legal purpose. (11/22/02 tr. at 172, 174, 237). Grimm eventually challenged the citation before a District Justice and it was dismissed. (11/20/02 tr. at 120; 11/22/02 tr. at 173). 97. Sweeney did not issue the citation out of a desire to retaliate against Grimm or Grimm Brothers Realty for their involvement