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PURICELLI v. BOROUGH OF MORRISVILLE

April 16, 1993

BRIAN PURICELLI
v.
BOROUGH OF MORRISVILLE, et al.



The opinion of the court was delivered by: ANITA B. BRODY

 In these motions for summary judgment on plaintiff's Section 1983 claims for violations of his civil rights, I am being called upon to decide:

 1. Whether, in an action sounding in defamation, the long established precedent that injury to reputation alone is not actionable as a violation of the United States Constitution is abrogated by a provision of the Pennsylvania state constitution identifying reputation as a constitutionally protected interest? I find that it is not.

 2. Whether there is any constitutionally protected privacy interest which defendants violated when they investigated plaintiff's criminal background, disclosed information about plaintiff's criminal history and made statements about him to an investigatory grand jury which ultimately disbanded without charging him. I find that there is not.

 3. Whether the plaintiff can maintain a cognizable Section 1983 "malicious prosecution/abuse of process" claim against defendants for initiating and conducting a grand jury investigation centered upon plaintiff's possible involvement in an alleged mishandling of abandoned cars when he has not identified any facts establishing any process such as arrest or the filing of criminal charges? I find that he cannot.

  INTRODUCTION

 On December 27, 1989, plaintiff, Brian Puricelli ("Puricelli") filed this lawsuit, pursuant to 42 U.S.C. § 1983. *fn1" This court has subject matter jurisdiction over this matter pursuant to 28 U.S.C §§ 1343 and 1331.

 Currently pending before me are four motions for summary judgment; one filed by each group of defendants. *fn2" Also pending before me are some of the same defendants' motions for summary judgment filed in Garner v. Township of Wrightstown et al., Civil Action Number 90-1228. These cases were consolidated for discovery purposes by order of Judge DuBois on August 6, 1990. Although they involve some of the same facts and occurrences I am considering the summary judgment motions separately and issuing a separate opinion in the Garner case.

 The defendants move for summary judgment in accordance with Fed. R. Civ. P. 56(c) which provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." I must evaluate the record in a light most favorable to Puricelli as the party opposing the motion for summary judgment. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). The defendants are entitled to summary judgment when no reasonable resolution of the conflicting evidence and the inferences which could be drawn from that evidence could result in a judgment for Puricelli. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Bank of Am. Nat'l Trust and Sav. Ass'n v. Hotel Rittenhouse Assoc., 595 F. Supp. 800, 802 (E.D. Pa. 1984).

 In their motions for summary judgment, the defendants maintain that Puricelli fails to state a cause of action upon which relief can be granted because he has not alleged any claims which are cognizable under the Constitution or laws of the United States. Additionally, the defendants maintain that they are immune from suit under the doctrines of absolute or qualified immunity and that

 any state law claims made by Puricelli are barred by the statute of limitations.

  FACTS

 Between 1979 and 1989, Puricelli, worked as a part time police officer for Wrightstown Township and the Boroughs of Yardley and Morrisville. Puricelli alleges that the causes of action arose while he was employed by these police departments.

 Puricelli worked as a part time police officer for the Borough of Morrisville ("Morrisville") from 1979 to 1984 when he was discharged. *fn3" When he applied for employment with Morrisville, Puricelli stated on his employment application that he had been arrested, convicted and had served a term of probation for possessing a controlled substance. *fn4" Chief Merker ("Merker") of the Morrisville police force investigated and fleshed out the circumstances surrounding Puricelli's arrest.

 In February 1984, after his discharge from the Morrisville police force, Puricelli applied for and received a part time position with the Wrightstown Township ("Wrightstown") police force. (Puricelli Depo. of 7/2/91 at 82-83.) During his tenure with the Wrightstown police force Puricelli and Chief Walter Hughes ("Hughes") became embroiled in several disputes. *fn5" Despite their differences, Puricelli worked for Wrightstown until September 1988 when he moved to Michigan to begin law school. *fn6" The Wrightstown police force disbanded on December 31, 1988.

 During the last six months of his employment with Wrightstown, Puricelli became the subject of a criminal investigation involving an investigatory grand jury. This investigation, conducted by Dale Reichley, an assistant district attorney for Bucks County and Detectives Brosha and Armitage, also of the Bucks County District Attorney's office, centered upon Puricelli's possible involvement in the alleged mishandling of abandoned cars in the area. *fn7" The investigation did not result in the filing of any charges against Puricelli or in his arrest, and the investigatory grand jury disbanded without indicting him. However, during the course of the investigation, Hughes, Reichley, Brosha and Armitage interviewed law enforcement officers and other members of the community about Puricelli and discussed with them Puricelli's criminal record and his status as the subject of a grand jury investigation. *fn8"

 In 1987, Puricelli obtained part time employment with the Borough of Yardley ("Yardley") police force. (Puricelli Depo. of 7/2/91 at 182.) He worked for Yardley until July 1989 when he was suspended because of a complaint filed against him by Susan Taylor, a defendant in this action and then a member of the Yardley Borough Council. *fn9"

 During 1988, Puricelli again sought employment with the Morrisville police force. (Puricelli Depo. of 7/2/91 at 55.) Although he received the top score on the civil service examination, Puricelli failed the psychological examination and consequently did not receive a position with the police force. (Puricelli Depo. of 10/22/91 at 193.) *fn10"

 DISCUSSION

  I. Section 1983

 Puricelli's responses to the motions for summary judgment categorize the numerous allegations made in his complaint into five basic claims brought pursuant to 42 U.S.C. § 1983: (1) harm to his reputation; (2) invasion of his privacy; (3) "malicious prosecution/abuse of process;" (4) deprivation of procedural due process under the Pennsylvania Police Tenure Act and Pennsylvania Borough Code; *fn11" and (5) conspiracy to deprive him of his constitutional rights and to convene a grand jury. *fn12"

 In order to state a viable claim for relief under 42 U.S.C. § 1983 Puricelli must prove (1) "that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States"; and (2) "that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.'" Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1602, 26 L. Ed. 2d 142 (1970). There does not appear to be any dispute between the parties that this "under color of" prong has been met. Rather, the issue is whether Puricelli has shown that the defendants deprived him of any right secured by the Constitution and laws of the United States. Puricelli does dispute that the various defendants are entitled to absolute and qualified immunity defenses.

 As stated in the companion case of Garner v. Township of Wrightstown, United States District Court for the Eastern District of Pennsylvania 90-CV-1228 at 12:

 Comporting with the directive of Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991), I begin my analysis by determining whether plaintiff has identified any facts on which he can assert a cognizable Section 1983 claim for relief. Although it is conceivable that these same facts might give rise to one or more state law causes of action, these facts do not give rise to any claim that defendants violated any recognized constitutionally protected right. Because the federal constitution is not intended to serve as a font of tort law creating remedies for private citizens against state action in the absence of a violation of a specific constitutional safeguard, see, e.g, Paul v. Davis, 424 U.S. 693, 701 (1975), I must enter summary judgment in favor of defendants and against plaintiff on his Section 1983 claims.

 This analysis compels the same result in the instant case.

  a. The defendants did not injure any constitutionally protected interest in plaintiff's reputation when they disclosed information about his criminal record and made statements about his involvement in ...


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