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DEWALT v. BARGER

May 27, 1980

Gerald T. DeWALT, Plaintiff,
v.
James D. BARGER, Individually; R. O. Wellendorf, Individually; Dr. Robert Wilburn, in his official capacity as Secretary of the Office of Administration of the Commonwealth of Pennsylvania; Howard Roath, as Director of the Bureau of Personnel of the Commonwealth of Pennsylvania, Defendants.



The opinion of the court was delivered by: RAMBO

I. INTRODUCTION

The complex procedural history of this case dictates a detailed introduction. On May 14, 1975, plaintiff filed a complaint in which the following were named as defendants:

 
1. The Pennsylvania State Police;
 
2. Colonel James D. Barger, individually and in his capacity as Commissioner of the Pennsylvania State Police;
 
3. Milton J. Shapp, individually and in his capacity as Governor of the Commonwealth of Pennsylvania;
 
4. Ronald G. Lench, individually and in his capacity as Secretary of the Office of Administration of the Commonwealth of Pennsylvania;
 
5. Richard Madison, individually and in his capacity as Director of the Bureau of Personnel of the Commonwealth of Pennsylvania;
 
6. Lieutenant Matthew Hunt, Captain Robert Shuck, Major Roy Titler and Lieutenant Colonel R. O. Wellendorf, individually and in their respective capacities as Operational Supervisors within the Pennsylvania State Police.

 The complaint alleged that these defendants had violated the rights of plaintiff arising under the following constitutional provisions and statutes:

 
1. The fifth amendment;
 
2. The sixth amendment;
 
3. The due process clause of the fourteenth amendment;
 
4. 42 U.S.C. § 1983;
 
5. 42 U.S.C. § 1985(3).

 An answer was filed by defendants on September 11, 1975, followed by a motion for summary judgment filed on April 1, 1976.

 In the court's memorandum and order dated July 30, 1976, the complaint was dismissed as to the Pennsylvania State Police; the complaint was dismissed to the extent it sought retroactive damages (including punitive damages and back pay) from defendants Lench and Madison; and the entire complaint was dismissed with respect to defendant Shapp. Several trial dates were established only to be continued for various and sundry reasons. The trial was ultimately commenced on October 29, 1979. On October 31, 1979, in an order given from the bench, defendants Hunt, Shuck, and Titler were dismissed.

 In addition to those dismissals, two substitutions were stipulated to by the parties on October 29, 1979. Dr. Robert Williams was substituted, in his official capacity only, for defendant Lench, *fn1" and Howard Roath, was substituted, in his official capacity only, for defendant Madison. *fn2" The end result being that the following individuals are being sued in their designated capacities:

 
1. James D. Barger, individually; *fn3"
 
2. R. O. Wellendorf, individually; *fn4"
 
3. Dr. Robert Wilburn, in his official capacity as Secretary of the Office of Administration of the Commonwealth of Pennsylvania;
 
4. Howard Roath, as Director of the Bureau of Personnel of the Commonwealth of Pennsylvania.

 The non-jury trial ended on October 31, 1979 and both sides were ordered to submit proposed findings of fact and conclusions of law after receipt of the transcript.

 II. FINDINGS OF FACT

 1. Gerald DeWalt joined the Pennsylvania State Police on February 1, 1951. Tr. p. 11.

 2. From January 2, 1973, until February 17, 1977, James Barger was Commissioner of the State Police. Tr. p. 194.

 3. From January 15, 1973 until the time of his retirement in July 1976, Roy Wellendorf was Deputy Commissioner of the Pennsylvania State Police. Tr. p. 66.

 4. In January of 1973, Helen Jean Lutz was Secretary to Deputy Commissioner Wellendorf of the State Police. Tr. p. 135.

 5. In the Fall of 1972, Major Roy Titler worked for the Pennsylvania Department of Justice and was in charge of investigations. All state policemen who worked with the Crime Commission at that time, including Gerald DeWalt, worked under his direction. Tr. p. 178.

 6. Plaintiff and Rocco Urella, Commissioner of the State Police in November 1972, had been friends for some time prior to November, 1972. Tr. p. 47.

 7. Commissioner Urella was not plaintiff's immediate superior in November 1972. Tr. pp. 46-47.

 8. In October and November 1972, plaintiff received several telephone calls from Corporal Kardash of the State Police. Despite the fact that he was assigned to the Crime Commission at the time, plaintiff provided information to Corporal Kardash concerning his activities at the George Washington Motor Lodge. Tr. p. 49.

 9. On the evening of November 27, 1972, wires were discovered in the George Washington Motor Lodge in the crawl space of the room which plaintiff had mentioned to Corporal Kardash. Tr. pp. 43, 101-02.

 10. On the morning of November 28, 1972, plaintiff made a phone call to warn Commissioner Urella of the discovery of the wires. He did this by calling his wife and directing her to call a telephone number he had given her, and instructed her to relay the message that the Crime Commission had discovered the wires and to "get the guys out." D. Ex. 1; Tr. pp. 139, 99-102, 46, 50.

 11. Plaintiff took this action without discussing the matter with Corporal Bugjo, Sergeant Hunt or Captain Titler, his immediate superiors at the Crime Commission. Tr. p. 47.

 12. On the evening of November 28, 1972, plaintiff talked by telephone with Mrs. Sobrecht, co-owner with Commissioner Urella of the Sentinel Motel. D. Ex. 1; Tr. pp. 99-102.

 13. The investigation of events at the George Washington Motor Lodge by the Pennsylvania State Police was initially administrative and not criminal in nature. Tr. pp. 131, 206, 236, 244.

 14. On January 31, 1973, plaintiff was questioned by Captain Shuck and Sergeant Hussack concerning his involvement in the wiretap incident. Tr. p. 51.

 15. This questioning occurred over a period of approximately three hours, from 11:00 a.m. until 2:00 p.m. Tr. p. 130.

 16. After taking a break for approximately one hour for sandwiches and coffee, a stenographer, Helen Jean Lutz, was summoned. Mrs. Lutz then recorded a verbatim question and answer session between Captain Shuck and plaintiff, a copy of which is defendant's exhibit 1 in this case. Tr. pp. 102-03, 124, 130-31, 135, 51.

 17. While plaintiff became emotional at times during the meeting with Captain Shuck and Sergeant Hussack on January 31, 1973, at the time the verbatim statement was taken, he appeared composed and under no undue strain. Tr. pp. 131, 134, 136, 298-99.

 18. Captain Shuck and Sergeant Hussack did not harass, abuse or otherwise speak in an abnormal voice toward plaintiff during the afternoon session on January 31, 1973. Tr. p. 136.

 19. Plaintiff's statements to Captain Shuck and Sergeant Hussack on January 31, 1973, both prior to and after the time a stenographer was called into the room, were voluntarily made, not under coercion. Tr. pp. 131, 134, 136.

 20. After talking with Captain Shuck and Sergeant Hussack on January 31, 1973, plaintiff talked briefly with Deputy Commissioner Wellendorf. The Deputy Commissioner stated to plaintiff at that time that he thought plaintiff's resigning would be a big mistake because he had many years of service with the State Police. The Deputy Commissioner arranged for plaintiff's transfer to Troop N in Hazelton at plaintiff's request. Tr. pp. 264, 51-52.

 21. Deputy Commissioner Wellendorf and Captain Shuck made arrangements after their discussions with plaintiff on January 31, 1973, for someone to pack up his belongings at the George Washington Motor Lodge and have them delivered to his home or his troop so that he would not have to return to the Motor Lodge and face the men. Tr. pp. 105, 116, 51.

 22. Major Robert Rice was assigned in February 1973, to act as Trial Judge Advocate in the upcoming court-martial proceedings against three members of the State Police, including Corporal Kardash. Tr. pp. 108-09.

 23. On or about February 1 or 2, 1973, Major Shuck and Major Rice met with plaintiff at Departmental Headquarters. At that time, they reviewed with plaintiff his statement of January 31, 1973. Plaintiff told Major Rice and Major Shuck that he would testify at the court-martial to be held on March 27, 1973. Tr. pp. 108-09, 52-53.

 24. On February 16, 1973, Captain Shuck and Trooper Pat Malone went to plaintiff's residence and talked with plaintiff and his wife about the events in November 1972. Tr. pp. 109, 111, 148.

 25. On March 5, 1973, Major Shuck went to the DeWalt's residence to serve them with subpoenas for the court-martial. At that time, he gave Mrs. DeWalt a copy of her statement of February 16, 1973, and asked plaintiff if he wanted a copy of his statement of January 31, 1973, defendant's exhibit 1, which he had with him. Plaintiff stated that he did not wish to see that statement. Tr. p. 112.

 26. At no time prior to the court-martial on March 27, 1973, was Major Shuck aware that plaintiff would refuse to testify on Fifth Amendment grounds. Tr. pp. 52-53.

 27. On March 27, 1973, plaintiff was called by the State Police Trial Judge Advocate to testify against three fellow State Troopers reputedly involved in an illegal wiretap operation at the George Washington Motor Lodge, King of Prussia, Pennsylvania. P. Ex. 13.

 28. At the court-martial, plaintiff was given a copy of his statement of January 31, 1973, which he had not wished to see on February 16, 1973. Tr. pp. 14, 112; P. Ex. 13.

 29. At the court-martial, plaintiff, upon advice of his counsel, Francis Lord, Esquire, elected not to testify and invoked his right against self-incrimination under the Fifth Amendment of the United States Constitution. P. Ex. 13.

 30. Having so raised his rights under the Fifth Amendment of the United States Constitution, the plaintiff was excused as a witness at the court-martial. P. Ex. 13.

 31. While plaintiff refused to testify in State Police proceedings on March 27, 1973, he did testify at some length concerning the events of November 27 and 28, 1972 before a Legislative ...


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