Fumo's attorney, accompanied by a private eye, drove across the Delaware River last August to evade Pennsylvania's wiretap law and secretly recorded telephone conversations with an opposing counsel and Robert G. Hazen, the head of the authority, who he thought might have been trying to "set up" Fumo in a bid-rigging scheme.
The tapes surfaced last month when Fumo's attorney, Robert J. Sugarman, played them in an unusual, closed-door hearing before Commonwealth Court President Judge James Crumlish Jr.
The Redevelopment Authority previously challenged, unsuccessfully, Crumlish's participation in the case at all, since he has his own pending property claim against the authority. This time around, as Crumlish was hearing arguments from Fumo's attorney, Fumo was making efforts to win the judge's son, James C. Crumlish 3d, a job as legal counsel at the Philadelphia Port Corp. Fumo says his efforts were unconnected to the suit; Crumlish declined comment.
Sugarman says he went ahead with the scheme to secretly tape-record telephone calls without Fumo's specific approval, though a Fumo aide arranged the spot in South Jersey from which the calls were made.
Fumo, for the record, has been an ardent opponent of wiretapping in the state Senate, once saying in legislative debate: "Wiretapping is totally abhorrent to my nature."
Fumo and Sugarman, meanwhile, insist they captured evidence on the tape of an illegal bid-rigging scheme by Harold G. Berk, attorney for the Greek Orthodox Church. But six others who have heard the tape disagree, and Berk calls the allegation "outrageous."
The whole thing landed in court in the first place back in January 1986 after the authority awarded the land to Fumo, rather than to the church. Fumo had officially proposed to rehabilitate the existing four-story building at 253 S. Ninth and develop a garden on the adjoining lot, 255 S. Ninth St.
To make sure Fumo kept his word, the authority insisted on a clause saying that 255 would have to remain a garden for 25 years.
This outraged Fumo, who never really wanted to rehabilitate the existing building or to develop the garden. What he really wanted to do was build a three-story Georgian dream house across both lots, his original bid notwithstanding.
He acknowledges now that his official proposal was not exactly what he had in mind.
Nonetheless, he sued the authority in Common Pleas Court, contending that the 25-year deed restriction was illegal.
Fumo even maintains that authority officials knew all along what his real intentions were. He says they were really trying to thwart him all along by forcing rehabilitation of the existing building.
So, Fumo said, he decided to play by the rules, rehabilitate the building and develop a garden - and then tear the building down and build his dream house.
Authority officials deny they knew of Fumo's real intentions. The bid specifications required rehabilitation of the existing building, they say,
because the City Planning Commission requires it in that area. The 25-year deed restriction, they say, was added only to make sure Fumo did what he said he was going to do.
Ultimately, Fumo won his appeal in Common Pleas Court, and the 25-year deed restriction was knocked down in April to two years.
The authority then appealed to Commonwealth Court, which is how the case got into Crumlish's court.
The authority has been joined in that appeal by the Greek Orthodox Church, which is challenging the award to Fumo and seeking to have the property rebid. The church has proposed rehabilitating the existing structure and constructing an additional structure for residential and commercial use.
Says Richard L. Bazelon, the authority's board chairman, of Fumo: "He is demanding that a public agency give him a property so that he can go out and develop it in a manner contrary to his bid proposal and contrary to the basis on which he was selected. In other words, Sen. Fumo's bid was a sham. And that is the underlying issue."
The case took a controversial turn in August, when Sugarman says he received a call from Berk proposing that Fumo and the church agree to bid the same price if new bids were required. Sugarman says he told Fumo at the time that Berk was proposing illegal conduct. Berk says his proposal was geared to avoid a price war. He says he wanted both sides to agree to bid a predetermined price set by the Redevelopment Authority, and then he wanted the authority to pick one or the other on merit, not price.
In any event, Sugarman contacted Redevelopment Authority director Hazen, and they both agree that he told Sugarman to go to the district attorney. Hazen, however, says he was being facetious; Sugarman says he took the comment seriously.
Fumo, after talking to his attorney, contacted District Attorney Ronald D. Castille. And Castille's top aides concluded that, if proved, Sugarman's allegations would amount to a crime.
Sugarman, though, never got back to the District Attorney's Office, and the office never pursued the case further. Sugarman said last week that he never called back because he concluded that the district attorney was unwilling to help.
Fumo said last week that he suggested Sugarman hire an investigator "who is as clean as can be" to be present if Sugarman met with Berk.
Sugarman called Anthony Lame, a former reporter for The Inquirer and KYW-TV who now is president of Information Unlimited.
Lame, who said he agreed to be interviewed because Fumo and Sugarman had waived confidentiality, tells a different story about what he was expected to do.
Lame says that Sugarman called him, described his concerns and asked Lame to listen on an extension telephone as Sugarman called Berk. Lame said he told
Sugarman such eavesdropping was illegal in Pennsylvania.
He also told him that New Jersey law allowed taping telephone conversations without the consent of the other party, and he suggested that Berk should call
Sugarman from there.
The site for the taping, a Pine Hill apartment, was secured by James Kenney, a top aide to Fumo.
Kenney initially denied his role. "No, no, I don't recall that," he said in an interview Friday. He later said he had arranged the location for
Sugarman - but did not know until Friday what Sugarman did there. "If I had known that," he said, "I wouldn't have participated."
Fumo contends that if Sugarman had told him the plan in advance, "I might have said, 'Don't go that far. I'm personally opposed to that. I've never voted for it and I never will.' "
Fumo and his attorney insist that Berk proposed to Sugarman in the tape- recorded conversation an illegal scheme whereby Fumo and the church would agree to bid, without the authority's knowledge, whatever minimum price the authority set for the land in a re-bidding. Berk says his plan actually called for the authority to set the price it wanted - not a minimum.
Others who heard the tape in Judge Crumlish's court dispute Sugarman's rendition. They generally substantiate Berk's version, although they say his language left room for Sugarman's interpretation. Nonetheless, once he had the tape-recording, Sugarman filed a motion Sept. 4 to dismiss the Greek church's appeal, contending that the church "is guilty of unclean hands" because of Berk's conduct.
Crumlish, after holding a conference on the motion, scheduled the unusual private hearing for Oct. 15.
It was at that hearing that Sugarman played tapes of two conversations - one with Berk, one with Hazen. Sugarman says he taped Hazen because he feared he was part of an attempt to set up Fumo - although he conceded that Hazen always opposed price fixing of any kind.
Crumlish last week denied Sugarman's motion to dismiss the church's appeal.
Sugarman insisted last week that there was nothing improper in the tape recording and said he would do it again.
Berk called the taping "heinous." Bazelon called it "repugnant."
Hazen refused comment. But his attorney, L. George Parry, said, "Mr. Hazen is extremely upset with the violation of his right to privacy by this taping, which under Pennsylvania law would be clearly illegal."
Authority officials say the tape-recording is just the latest technique used by Fumo to intimidate the agency for insisting that Fumo develop the land in accordance with his original bid.
In 1986, just after the authority blocked his attempt to build a home on the property by imposing the deed restriction, Fumo promoted legislation in Harrisburg to reduce the authority's power, according to four legislative sources. Fumo has denied any involvement with the legislation, which was ultimately defeated in both houses.
As recently as two weeks ago, according to one authority source, a member of Fumo's Senate staff in Harrisburg called the agency and asked for the names and home addresses of all employees - a request that has left agency officials asking why Fumo wants to know.
Fumo responded last week that he has been persecuted ever since he first expressed interest in the property in 1985 by Bazelon and Hazen - whom he described as two liberals out to punish a politician from South Philadelphia. ''All I want," he said, "is to build my house."