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LEE v. MIHALICH

February 13, 1986

WILLIAM LEE and DENVER NURSING HOME, INC.
v.
LEONARD MIHALICH, et al.



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Pending before me in this civil rights action are motions for judgment on the pleadings and partial summary judgment. This suit stems from a 1982 state criminal prosecution of plaintiffs William Lee and Denver Nursing Home, Inc. Plaintiffs claim that the prosecution was groundless, malicious, and in violation of their rights under the federal and state constitutions. Defendants have moved for judgment on the pleadings on plaintiffs' claims involving wrongful prosecution, conspiracy, and right to privacy. In addition, defendants have moved for summary judgment on plaintiffs' allegations that their sixth amendment rights were violated. For the reasons explained below, I will grant the summary judgment motion, and will grant in part the motion for judgment on the pleadings.

 BACKGROUND

 Lee is the owner and operator of Denver Nursing Home. The nursing home participated in Pennsylvania's federally funded Medical Assistance Program, through which it received reimbursement for allowable charges based on services to eligible recipients. In January 1982, the Pennsylvania Attorney General's office brought criminal charges against plaintiffs in Lancaster County Court. These charges concerned the propriety of cost reports filed by the nursing home with the Pennsylvania Department of Public Welfare. The charges were dismissed in December 1982 on the grounds that the action had not been filed within the applicable statute of limitations.

 Defendants are all individuals who were involved in the state investigation of the nursing home's activities. They are: Leonard Mihalich and Bradford King, both investigators in the Attorney General's Medicaid Fraud Control Unit (MFCU); Robert Gentzel, the Attorney General's assistant press secretary; and Leslie Solove. *fn1" Solove, the former assistant administrator of the nursing home, cooperated with investigators Mihalich and King, and later testified against plaintiffs.

 In about May 1977, Michael Worrall, a Pennsylvania attorney, was retained by plaintiffs to represent them in connection with the MFCU investigation. Worrall also represented Solove, who was an employee of the nursing home at the time. In 1980, Worrall was present at a meeting at which Mihalic took statements from Lee and Solove. Sometime thereafter, Worrall was advised that Lee had retained new counsel for the investigation.

 After Solove left the employ of Denver Nursing Home, she asked Worrall to prepare a will for her. He did so, but had no further involvement in the MFCU investigation until 1982. At that time, Solove consulted him about testifying at a preliminary hearing. The hearing took place on February 4, 1982, about a month after the state had filed its charges against plaintiffs. Worrall gave Solove legal advice, and agreed to represent her at the hearing. Worrall's appearance at the hearing came as a surprise to those from the Attorney General's office. Worrall was present as prosecutor Frank Barone prepared Solove for her testimony, but he did not actively participate in that preparation. He then observed her testimony, and left the hearing.

 Worrall's only contacts with representatives of the Attorney General's office were greetings exchanged with Mihalich and King. He never discussed his previous representation of plaintiffs with the investigators or with Barone, and after the hearing, he recommended to Solove that she consult another lawyer.

 After the charges against plaintiffs were dismissed, assistant press secretary Gentzel told a reporter that the United States Attorney for the Eastern District of Pennsylvania had asked for the state's records. As a result of that conversation, a newspaper article was published in Lancaster in January 1983 in which it was reported that the Justice Department was considering filing its own charges against plaintiffs.

 DISCUSSION

 Plaintiffs claim that the prosecution was an unfounded conspiracy in violation of their rights under 42 U.S.C. ยง 1983 and under state law. They also assert that Gentzel's comments to the press resulted in a newspaper article which violated their rights to privacy under the federal and state constitutions. Finally, they allege that the communication between the state actors and Worrall infringed upon their sixth amendment rights to counsel. I will address only the latter two contentions.

 I. Judgment on the Pleadings

 In ruling on the motion for judgment on the pleadings, I must view the facts in the light most favorable to plaintiffs, the non-moving party. Society Hill Civic Association v. Harris, 632 F.2d 1045, 1058 (3d Cir. 1980). I must, therefore, accept as true plaintiffs' allegations that the Attorney General's staff instigated the prosecution without probable cause and with malice. I must further accept their claims that the state investigators concealed evidence that would exculpate plaintiffs while relying on information known to be false. And finally, I must regard as true plaintiffs' allegations that ...


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