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HAWK v. BROSHA

January 11, 1984

Susan Anne HAWK
v.
William S. BROSHA, Ind. and as a Detective for the County of Bucks, Stephen Shantz, Ind. and as an Assistant District Attorney of Bucks County, Joanne D. Sommer, Ind. and as an Assistant District Attorney of Bucks County, Kenneth G. Biehn, Ind. and as a District Attorney of Bucks County, Pennsylvania; and the County of Bucks



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 In early summer 1978, the Office of the District Attorney for Bucks County began an investigation of complaints received by the Bucks County Department of Consumer Protection about the operations of Gibraltar Realty in Warminster, Pennsylvania. The complaints came from persons who claimed that they had paid a fee and entered into a contract with Gibraltar Realty to obtain referral information about rental properties but had either never received the information or received inaccurate information.

 In the course of the investigation, it was learned that (a) a number of property owners had been contacted by representatives of Gibraltar Realty with a view to listing their properties in an effort to obtain the right to list these properties, and (b) on several occasions in which permission to list had not been obtained, Gibraltar nonetheless placed advertisements -- often containing inaccurate information -- in local newspapers.

 As a result of these customer complaints and the investigation which followed, on August 9, 1978, the vice-president of Gibraltar, Karl Rhoads, was brought in to the District Attorney's Office and questioned. By early October 1978, one of the detectives responsible for the investigation, William S. Brosha, had compiled a lengthy report on the consumer complaints received, the interview with Karl Rhoads, and the other aspects of the investigation.

 On October 25, 1978, Susan Hawk, plaintiff in the present action, was arrested and incarcerated under an arrest warrant issued earlier that month. Plaintiff was incarcerated for seven days. Soon after her release, on November 28, 1978, while charges were still pending against her, plaintiff gave a statement to the District Attorney's Office. Approximately one year later, all charges against plaintiff were dropped. Other than the arrest of one of the other employees of Gibraltar Realty, Kenneth Schumann, there have been no arrests or prosecutions with reference to the activities at Gibraltar Realty.

 On May 5, 1981, plaintiff brought this action which was later amended to state claims against Bucks County and the following county officials: Detective William S. Brosha; Assistant District Attorneys Stephen Shantz and Joanne Sommer; and District Attorney Kenneth Biehn. The complaint alleges that these parties infringed plaintiff's constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments and, therefore, violated 42 U.S.C. § 1983. Pendent to these federal claims, plaintiff has alleged a number of state law claims including false imprisonment, false arrest, intentional and negligent infliction of emotional distress, malicious prosecution, abuse of process, negligence and gross negligence.

 Following a lengthy period of discovery, all of the defendants filed a massive motion for summary judgment. That motion argues that there is no genuine issue of material fact which warrants proceeding to trial in this case. Plaintiff's response alleges that there are numerous factual issues which should be considered by a jury. Upon consideration of these arguments and the evidence marshalled on both sides of the motion, I conclude, for the reasons stated below, that defendants are entitled to summary judgment with respect to all of the federal claims and, hence, the pendent state claims as well.

 I. Liability of Bucks County Under Monell and Its Progeny

 Plaintiff alleges that there are two different ways by which this court can find the requisite policy or custom and that there are genuine issues of material fact as to the existence of such policies or customs. First, plaintiff alleges that "there existed a policy in the District Attorney's Office of Bucks County to summarily arrest, incarcerate and interrogate citizens known to be innocent of any crime for purely investigative purposes in order to obtain evidence implicating third parties charged with crimes." Plaintiff's memorandum of law at 1.

 Defendant has submitted sworn deposition testimony from defendants Biehn, Shantz, and Sommer that no such policy or custom exists or has ever existed in Bucks County. To raise a genuine issue of material fact worthy of sending this question to trial, plaintiff must present some item of admissible evidence which suggests that such a policy exists or existed. Plaintiff has failed to do so. In support of her allegations, plaintiff relies on her own deposition testimony in which she recalls (a) rumors she heard when she worked in the courthouse, and (b) statements made to her by a former coworker, Anne Mitchell, that Ms. Mitchell's son had been arrested without just cause pursuant to this custom.

 Both the rumors and the Mitchell statements are hearsay and hence inadmissible, and for that reason do not suffice to create an issue of material fact under Rule 56. C. Wright, A. Miller & M. Kane, 10A Federal Practice and Procedure § 2738 at 500 (1983).

 In addition, plaintiff alleges that the county is liable due to the failure of county officers (such as the District Attorney) to supervise the activities of subordinates. "Where the actions of subordinate employees are concerned, the failure of supervisors to control their behavior may, in effect, create a de facto departmental policy." Turpin v. Mailet, 579 F.2d 152, 168 (2d Cir.1978) vacated, 439 U.S. 974, 99 S. Ct. 554, 58 L. Ed. 2d 645, modified 591 F.2d 426 (1979). Under this theory, a county or municipality may be held liable for failure to train or properly supervise non-policy making personnel who are directly responsible for ...


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