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ERRET v. PENNSYLVANIA

March 29, 1989

GARY LEE ERRET, TODD HUEY, THOMAS COON, DAVID MICHAEL DAMICO and McCREARY TIRE & RUBBER CO., INC., Plaintiffs
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE; JAY COCHRAN, JR., COMMISSIONER PENNSYLVANIA STATE POLICE; RICHARD WEATHERBEE, DEPUTY COMMISSIONER, PENNSYLVANIA STATE POLICE; CAPT WILLIAM MERICLE, COMMANDER-TROOP A, PENNSYLVANIA STATE POLICE; LT. JAMES DRAUSE, STATION COMMANDER, INDIANA SUBSTATION, PENNSYLVANIA STATE POLICE; SGT. SIDNEY SIMON, PENNSYLVANIA STATE POLICE; TROOPER RICHARD DOUTHIT, PENNSYLVANIA STATE POLICE; TROOPER JOHN R. LUDWIG, JR., PENNSYLVANIA STATE POLICE; TROOPER FRANK ADAMCZYK, PENNSYLVANIA STATE POLICE; TROOPER BRIGIT PEDERSEN, PENNSYLVANIA STATE POLICE; TROOPER FORINGER, PENNSYLVANIA STATE POLICE; BOROUGH OF INDIANA, PENNSYLVANIA, CHARLES McADOO, CHIEF OF POLICE BOROUGH OF INDIANA, PENNSYLVANIA, SGT. ANTHONY ANTOLIK, BOROUGH OF INDIANA POLICE; PATROLMAN CHARLES R. KELLY, BOROUGH OF INDIANA POLICE; PATROLMAN RUSSELL STATES, BOROUGH OF INDIANA POLICE, Defendants



The opinion of the court was delivered by: SMITH

 D. BROOKS SMITH, UNITED STATES DISTRICT JUDGE:

 Currently before the court in this civil rights action are summary judgment motions by the Commonwealth, Pennsylvania State Police (PSP), and several Pennsylvania State Police officers sued in their official and individual capacities, and by Indiana Borough and several Indiana Borough police officers sued in their official and individual capacities. *fn1" For the reasons stated herein, their motions will be granted.

 The material facts are not in dispute. See Statement of Material Facts not in Dispute, filed February 22, 1989 (defendants); Plaintiffs' Statement of Genuine Issues of Fact, received March 14, 1989 (plaintiffs). The parties agree that:

 1. A work stoppage at plaintiff McCreary Tire & Rubber Company, Inc., a manufacturer in the Borough of Indiana, Pennsylvania, began on March 3, 1986.

 3. McCreary Tire as early as February 27, 1986, had expressed its concern about possible strike-related violence to the Pennsylvania State Police. By letter, McCreary Tire's counsel, Albert C. Gaudio, Esquire, requested the PSP to "take all reasonable steps as law enforcement officers" to safeguard employees reporting to work.

 4. On March 26, 1986, Don D. Mateer, President of McCreary Tire, wrote to then-Governor (now United States Attorney General) Thornburgh requesting his assistance in investigating the incidents surrounding the strike, which included threats of bodily harm and property damage. The Governor assigned a labor mediator to assist in negotiations between the two sides.

 5. On April 1, 1986, an explosive device damaged a door to a water pumping station at McCreary Tire, and on April 27, 1986, shots were fired at the plant's electrical transformers, damaging one of them. *fn2"

 6. On June 8, 1986, *fn3" a homemade bomb killed William Anderson, a striking employee. From the evidence, it appears that Anderson may have been preparing to place two bombs near the plant's electrical transformers. Found with Anderson's body was a.357 magnum revolver.

 7. On June 9, 1986, Sheriff Gondal of Indiana County requested assistance from the Pennsylvania State Police, which assistance was immediately authorized by Commissioner Cochran of the PSP, through Major Hankinson.

 8. On June 9, 1986, *fn4" a striking worker was seriously injured when a nonstriking employee ran him down with his van. Later that day, police officers confiscated baseball bats and an ax from the vehicles of picketers. The driver of the van was prosecuted for aggravated assault.

 It further appears that the officers of the PSP believed it likely that as a result of the death of Anderson there would be a demonstration by union members supporting the striking employees, and decided to deploy officers in force, equipped with riot gear. Plaintiffs' Statement, paragraph 7. On June 10, 11, and 12, 1986, the Pennsylvania State Police and members of the Indiana Borough Police, under the direction of defendants Simon, Krause and Mericle of the PSP, deployed officers near the gates of the McCreary Tire plant, in what plaintiffs describe as a "gauntlet". Plaintiffs' Statement, paragraphs 15-18, 25. Defendant Simon instructed his officers to observe passing traffic for anything that was or could be a prohibited offensive weapon. Id., paragraph 17.

 On June 12, 1986, Sergeant Antolik and Patrolman Kelly of the Indiana Borough Police Department stopped plaintiff Gary Lee Erret's vehicle as Erret was proceeding on Washington Street past the double line of police officers. Antolik and Kelly stopped the car and removed a wooden indian club, two socks containing glass bottles, and a metal file from Erret's vehicle. Trooper Douthit, on duty on Wine Street, arrived, advised Erret of his miranda rights, and obtained an admission that the items removed from the vehicle were Erret's. The items were confiscated, and after a delay of approximately 45 minutes, Erret and his two passengers were allowed to proceed to work. Trooper Douthit was the officer who filed prohibited offensive weapons charges against Erret. The case was held for court by a district justice, but the charges were dismissed after the evidence seized was ...


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