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GARNER v. TOWNSHIP OF WRIGHTSTOWN

April 16, 1993

DONALD N. GARNER, Plaintiff,
v.
TOWNSHIP OF WRIGHTSTOWN, et al., Defendants.



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

 Brody, J.

 April 16, 1993

 In these motions for summary judgment on plaintiff's Section 1983 claims for violation 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 against disclosure that plaintiff's business operations were the subject of a police and grand jury investigation? I find that there is not.

 (3) Whether the plaintiff's agreement with the township to tow abandoned and disabled vehicles for the township police department on alternating weeks was a constitutionally protected entitlement invoking the right to a hearing under the due process clause of the Fourteenth Amendment prior to termination of the towing privileges by the township police chief? I find that it was not.

 (4) 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 of his business operations when he has not identified any facts establishing any process such as arrest or the filing of criminal charges? I find that he cannot.

 Before me are three motions for summary judgment on plaintiff's claims under 42 U.S.C. § 1983 for violation of his civil rights filed, respectively, (1) by the collective "Wrightstown defendants" (Township of Wrightstown, the township Board of Supervisors, Ken Cronlund, George Donat, Eric Curtis, Chester Poganowski, and the Wrightstown Township Police Department); (2) by defendant Walter Hughes ("Chief Hughes"); and, (3) by the collective "Bucks County defendants" (Alan Rubenstein, Dale Reichley, William Brosha, Harry Armitage, and the Bucks County District Attorney's Office).

 I. STATEMENT OF MATERIAL FACTS

 In February of 1988, plaintiff Donald Garner ("Mr. Garner") owned and operated a Bucks County car repair shop and used car parts dealership known as Wrightstown Auto Body and Wrightstown Auto Parts. For approximately 15 or 16 years prior to 1988, Mr. Garner had an informal, unwritten arrangement with Wrightstown Township to tow all abandoned or disabled vehicles for the local police on alternating weeks. (Garner depo. at 98-99; 165-67). Mr. Garner, who testified that he had a "60 or 70 percent chance of repairing" any cars towed pursuant to his agreement with the township, characterized the township towing arrangement as a significant source of business, and indeed, as his "livelihood." (Id. at 99, 167). Mr. Garner testified that he had no understanding about "staying on the [township towing] list" or the circumstances under which the agreement could be terminated. (Garner depo. at 165-66).

 During the summer of 1987, Mr. Garner asked his friend Brian Puricelli ("Officer Puricelli"), a part time Wrightstown Township police officer, to help his business obtain the state salvor's license required for "processing " -- or salvaging -- towed vehicles abandoned by their owners. (Garner depo. at 31-35). Prior to obtaining the license, Mr. Garner simply stored the abandoned vehicles on the premises. (Id.).

 After Mr. Garner obtained the salvage license, Officer Puricelli approached Walter Hughes ("Chief Hughes"), then the chief of the Wrightstown Township police department, who gave Officer Puricelli permission to set up and maintain an abandoned vehicle and towing file for the Wrightstown police department. (Hughes depo. at 103-04; Brosha depo. at 50). Officer Puricelli then created and organized Mr. Garner's filing system for automobile abandonment procedures. (Puricelli depo., "second day," at 71). Officer Puricelli refused any compensation for his help in setting up Mr. Garner's files. (Garner depo. at 97).

 A. Material facts underlying the motions for summary judgment by the Wrightstown defendants and Chief Hughes.

 Mr. Garner's Section 1983 action against Chief Hughes arises from an investigation of his towing and salvage operations. Mr. Garner claims that the investigation was initiated to retaliate against Officer Puricelli who had reported improper conduct by Chief Hughes to the township supervisors. *fn1" Mr. Garner also claims the Wrightstown defendants "ratified" Chief Hughes' acts and conduct by failing and refusing to take any action to stop the improper investigation, thereby acting with deliberate indifference to the violation of Mr. Garner's constitutional rights. (See plaintiff's second amended complaint).

 According to Mr. Garner's version of the facts, Chief Hughes first approached Mr. Garner to demand his abandoned car records the day after the Chief learned about Officer Puricelli's complaint to the board of supervisors. (See Hughes depo. at 132; Garner depo. at 52-53). Mr. Garner testified that Chief Hughes first approached Mr. Garner's niece, an employee at the business, for the records and that she referred him to Officer Puricelli; Chief Hughes subsequently contacted Mr. Garner on at least three occasions to demand Mr. Garner's abandoned car records, but Mr. Garner refused because Chief Hughes would not tell him why he wanted the records. (Garner depo. at 50, 52, 58, 183-86).

 On February 23, 1988, Chief Hughes hand delivered a letter to Mr. Garner revoking his township towing privileges because Mr. Garner would not cooperate in his investigation. (Garner depo. at 69-70). Four days later, Chief Hughes telephoned Mr. Garner to advise him that his towing privileges were being reinstated; Mr. Garner testified that he responded that he did not want to be reinstated: "I was probably a little nasty and upset." (Garner depo. at 174-75). At his deposition, Mr. Garner could not recall whether he was the township's designated tower during the week of February 23, 1988. (Id. at 193).

 By letter dated March 19, 1988, Mr. Garner, through his attorney, officially requested reinstatement of his township towing privileges; the privileges were restored by letter from Chief Hughes dated March 24, 1988. (Garner depo. at 102-04, 175-77). Mr. Garner testified that township supervisor Ken Cronlund, one of the Wrightstown defendants, told him that he directed Chief Hughes to reinstate him because his towing privileges could not be revoked on the mere accusation that Mr. Garner was running a "chop shop". (Garner depo. at 102-104; 193).

 B. Material facts underlying the motion for summary judgment by the Bucks County defendants.

 Mr. Garner's Section 1983 claims against the Bucks County defendants arise from the Bucks County district attorney's office's investigation of his business operations commencing when Chief Hughes turned his investigation over to that office. Mr. Garner alleges that Chief Hughes -- and, by their "ratification," the Wrightstown defendants -- are also liable for the conduct of the Bucks County defendants because of the chief's "conspiracy" with the district attorney's office "to destroy his reputation and livelihood in Bucks County without probable cause". (See plaintiff's second amended complaint).

 On March 1, 1988, defendant William Brosha ("Detective Brosha"), a detective in the Bucks County District Attorney's office, interviewed Chief Hughes. Detective Brosha summarized the content of this interview in a report of the same date ("the Brosha report"). The Brosha report states that the police department's internal investigation "led [Chief Hughes] to suspect the possibility of unlawful conduct by PURICELLI & GARNER using the Wrightstown Police Department." Chief Hughes also reported that his own efforts to conduct an investigation were unsuccessful: "DONALD GARNER, then questioned by CHIEF HUGHES, at first referred all questions by ...


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