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KOSTA v. CONNOLLY

March 15, 1989

PHILIP KOSTA, ELLEN M. DONATO AND FRANK DI MAIO
v.
MAYOR JERRY CONNOLLY, ET AL



The opinion of the court was delivered by: VAN ANTWERPEN

 FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE.

 This action comes before the court on defendants' motion for summary judgment. In their complaint, plaintiffs allege, inter alia, that defendants violated their constitutional rights by prosecuting them for placing signs and posters on utility poles during a political campaign. For the reasons stated below, defendants' motion for summary judgment is denied.

 FACTS

 During a 1987 political campaign in the Borough of Morton, plaintiffs Philip Kosta, Ellen M. Donato, and Frank Di Maio placed political posters on various utility poles throughout the Borough. Defendant Mayor Jerry Connolly allegedly received complaints from Borough residents about these posters and contacted one or more of the plaintiffs to inform them that they were in violation of the law. The next day Mayor Connolly allegedly instructed defendant Chief of Police George Souder to cite plaintiffs for violating 18 Pa. Cons. Stat. Ann. § 6503(a) (Purdon 1983) which provides as follows:

 
A person is guilty of a summary offense if he pastes, paints, brands or stamps or in any manner whatsoever places upon or attaches to any building, fence, bridge, gate, outbuilding or other object, upon the grounds of any charitable, educational or penal institution of the Commonwealth, or upon any property belonging to the Commonwealth government, any political subdivision, or municipal or local authority, any written . . . sign or poster . . . without first having obtained the written consent of the owner, or tenant lawfully in possession or occupancy thereof.

 After Souder issued these citations, a hearing was held in which a district justice found the plaintiffs guilty of the summary offense. Plaintiffs appealed that decision to the Court of Common Pleas of Delaware County and the judge dismissed the charges against plaintiffs when the Borough failed to appear.

 Plaintiffs then filed a complaint in this Court alleging, inter alia, malicious prosecution, selective enforcement, a conspiracy to injure, oppress, threaten and intimidate plaintiffs, violation of the First, Fourth, Sixth, and Fourteenth Amendments to the Constitution, and violation of 42 U.S.C. § 1983, § 1985, and § 1986. Defendants now move for summary judgment because: (1) plaintiffs have admitted to violating the statute in question, and therefore, defendants did not violate any of their rights by prosecuting them; (2) the doctrine of qualified immunity shields the individual defendants from civil liability; and (3) Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), shields the defendant Borough from liability. We disagree with all of defendants' contentions.

 A. Standard of Review

 The standards to be observed in evaluating a motion for summary judgment are clear. Fed.R.Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This rule provides the court with a useful tool when the critical facts are undisputed, facilitating the resolution of a pending controversy without the expense and delay of conducting a trial made unnecessary by the absence of factual dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. 477 U.S. at 265, 106 S. Ct. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative", summary judgment may be granted. Id.

 In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Following such a showing in a case where the non-moving party is the plaintiff and therefore bears the burden of proof, it must by affidavits or by the depositions and admissions on file "make a showing sufficient to establish the existence of [every] element essential to that party's case." Id. 477 U.S. at 322, 106 S. Ct. at 2552-53; Anderson, supra, 106 S. Ct. at 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Fed.R.Civ.P. 56(e). In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S. Ct. at 2513.

 B. Request for Admissions

 Defendants argue that because plaintiffs have not answered defendants' request for admissions, under F.R.Civ.P. 36(a) *fn1" we should consider the statements admitted. The requests for admissions would establish that plaintiffs posted signs on various utility poles, that Mayor Connolly requested plaintiffs to remove them, that plaintiff refused to remove them, that the police issued them citations, and that they were found guilty at a hearing before a magistrate. Accepting these statements in the requests for ...


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