Opinion
Civ. No. CA 3-79-0033-H.
August 9, 1979.
Kenneth J. Mighell, U.S. Atty. by Judith A. Shepherd, Asst. U.S. Atty., Dallas, Tex., J. Roger Edgar, Eugene R. Sullivan, Attys., Civ. Div., Dept. of Justice, Washington, D.C. for plaintiff.
Thomas H. Dixon, Dallas, Tex., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The United States brought suit against Anthony J. Pezzello for recovery of bribes, kickbacks and other gratuities received by Defendant Pezzello while he was in the employ of the Army and Air Force Exchange Service ("AAFES"). Upon consideration of the Plaintiff's Motion for Partial Summary Judgment pursuant to Fed.R.Civ.P. 56(a) and the Defendant Pezzello's response thereto and having been fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Anthony J. Pezzello was employed as a merchandise specialist for the Army and Air Force Exchange Service ("AAFES"), an instrumentality of the United States of America. During the times relevant to the complaint, Anthony J. Pezzello was responsible for, or was in a position to influence, the development and/or award of AAFES contracts for the procurement of military clothing and supplies with specific suppliers doing business with AAFES.
2. During the years 1975, 1976, 1977, Bendone Corporation (the president of which is John Sbordone, Jr.) sold military uniform merchandise to AAFES in the amount of over 6 million dollars. David Zieff represented companies doing business with AAFES during 1975, 1976, 1977 in the amount of over 5 million dollars.
3. Defendant Pezzello received money and gratuities from Bendone Corp.; John Sbordone, Jr. and David Zieff. Specifically, on or about June 25, 1975, Anthony J. Pezzello, an AAFES employee, received one thousand dollars ($1,000) in United States currency from David Zieff of David Zieff and Associates, Inc. for and because of official acts performed by defendant Pezzello pertaining to purchases by AAFES from vendors represented by David Zieff and Associates, Inc. in violation of 18 U.S.C. § 201 (Bribery of Public Official).
4. On or about May 17, 1977, Anthony J. Pezzello, an AAFES employee, received from John T. Sbordone, Jr. (President of Bendone Corp.) and Bendone Corp. a supplement to his AAFES salary in the amount of one thousand dollars ($1,000) in violation of 18 U.S.C. § 209(a) (illegal supplement to salary of Federal employee).
5. During 1976, Anthony Pezzello received at least $11,000 in unreported income from David Zieff and Associates and the Bendone Corp.
6. Pending the outcome of the instant litigation, the United States is administratively withholding from Mr. Pezzello the sum of $4,258.62, representing final pay and allowances, and overpayment of court costs in No. CR 3-78-104.
7. The plea bargain agreement in the criminal cases of United States v. Anthony J. Pezzello, Nos. CR 3-78-104, CR 3-78-226 (N.D.Texas 1978), did not address or encompass the civil claim of the government in the instant civil suit. Consequently, the plea agreement raises no genuine issue of material fact affecting the instant case.
8. The award of punitive damages is not appropriate in the circumstances of the instant case.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1345.
2. The receipt of $13,000 by AAFES employee Anthony Pezzello from individuals and corporations doing business with AAFES constituted a breach of Pezzello's fiduciary duties and agency relationship with his employer, AAFES, and Defendant Pezzello is liable in this amount to AAFES.
3. Defendant Pezzello would be equally liable to return the sum of $13,000 he improperly received while in the employ of AAFES under the theory of unjust enrichment since he has received something of value at the expense of AAFES under circumstances which impose a legal duty of restitution.
4. Accordingly, as a matter of law the plaintiff is entitled to judgment in its favor in the amount of $13,000 with interest. The amount of $4,258.62 to the account of Anthony Pezzello currently being held by the United States shall be applied in partial satisfaction of the amount of judgment so entered.