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LOSCH v. BOROUGH OF PARKESBURG

June 24, 1983

Frank A. LOSCH
v.
BOROUGH OF PARKESBURG, PENNSYLVANIA, et al.



The opinion of the court was delivered by: SHAPIRO

 SHAPIRO, District Judge.

 Plaintiff, Frank A. Losch, brings this civil rights action against the defendants, Borough of Parkesburg, Lester J. Thomas, Chief of Police, and Andrew H. Wilson, III, a former police officer. Plaintiff asserts this court's jurisdiction pursuant to 28 U.S.C. § 1343(3) and (4), 42 U.S.C. § 1983, and the First, Fourth and Fourteenth Amendments of the United States Constitution. Plaintiff also asserts a pendent state claim for malicious prosecution. Presently before the court is a motion for summary judgment filed on behalf of all defendants. For the reasons stated below, this motion is granted.

 On a motion for summary judgment the moving party has the burden of demonstrating that there is no genuine issue of material fact. Ettinger v. Johnson, 556 F.2d 692 (3d Cir.1977). The court must view the evidence in a light most favorable to the party opposing the motion. Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976). The defendants have established that the pleadings, discovery depositions, answers to interrogatories, and affidavits fail to raise a genuine issue as to any material fact.

 On July 19, 1980, the plaintiff wrote a handwritten message addressed to defendant Officer Andrew Wilson which he caused his son to affix to the front door of the Parkesburg Police Department:

 
Officer Wilson, I strongly advise you to stop picking on my wife and children and accepting information which is not true. I have intentions of taking this matter before the County District Attorney's Office and having you arrested for a number of offenses. Respectfully yours, Frank A. Losch.

 At that time charges of disorderly conduct were pending against plaintiff's wife and charges of burglary and theft were pending against the plaintiff's juvenile son. Officer Wilson discussed whether the writing of such a letter constituted a crime with District Justice Carl Henry who reviewed the facts and recommended the filing of charges for Harassment by Communication or Address, 18 Pa.C.S.A. § 5504(a)(1), *fn1" and Threats and Other Improper Influences in Official and Political Matters, 18 Pa.C.S.A. § 4702(a)(1). *fn2" Officer Wilson and Chief Thomas then reviewed the charges and prepared a criminal complaint; Chief Thomas signed the affidavit. The District Justice issued a summons for the plaintiff on July 23, 1980; plaintiff was charged with violations of 18 Pa.C.S.A. § 5504 and 18 Pa.C.S.A. § 4702. At plaintiff's arraignment, nominal bail was set at one dollar. No restrictions were placed on plaintiff's activities except that he was required to telephone a bail agency once a week.

 At the hearing held before District Justice John Catanese on August 27, 1980, the Assistant District Attorney moved to withdraw the charges against the plaintiff for insufficiency of evidence. But at the request of plaintiff's counsel the District Justice dismissed both charges against plaintiff. Mr. Losch alleges defendants lacked probable cause in bringing the criminal charges against him and were motivated by malice and bad faith. Plaintiff points to three incidents involving his wife and two sons in support of his contention:

 The first incident involved plaintiff's son, Bruce Losch. On November 17, 1979, Officer Wilson issued several traffic and non-traffic citations to Bruce Losch based on the officer's personal observation. At the hearing on these charges on December 7, 1979, Officer Wilson failed to appear (or appeared late according to the defendant) and the District Justice dismissed the charges. Plaintiff alleges that Officer Wilson was suspended for three days for this failure to appear and that Officer Wilson's criminal charges against plaintiff were in retaliation for his suspension. Officer Wilson was suspended for three days after failure to appear without prior notice at a hearing on January 11, 1980, concerning a matter unrelated to the plaintiff or his family. His notice of suspension referred to six hearings missed in 1979; one of these was the Losch hearing.

 The second incident involved another of the plaintiff's sons, Drew Losch. On March 20, 1980, Officer Wilson referred Drew Losch to juvenile authorities when another juvenile defendant implicated him in an incident concerning the burglary and theft of motorcycles from the property of two Parkesburg residences. A juvenile petition issued charging Drew Losch and two other juveniles with theft and burglary. The juvenile who incriminated Drew Losch pled guilty himself but refused to testify against plaintiff's son and the charges against Drew Losch were dismissed for lack of evidence.

 The third incident involved plaintiff's wife. On July 8, 1980, Officer Wilson filed a charge of disorderly conduct against Dorothy Losch on the complaint of a neighbor. District Justice Carl Henry issued a summons when Mrs. Losch failed to appear at her scheduled hearing; plaintiff paid the fines and costs on behalf of his wife on August 20, 1980.

 I. Claims Against the Borough of Parkesburg

 Municipalities can be sued directly under 42 U.S.C. § 1983 for monetary, declaratory, or injunctive relief. But a municipality cannot be held liable on a respondeat superior theory.

 
. . . a local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, ...

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