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RUSCAVAGE v. ZURATT

April 30, 1993

ELIZABETH H. RUSCAVAGE Plaintiff
v.
JOHN ZURATT Defendant



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 Plaintiff commenced this action under 42 U.S.C. § 1983 alleging that Defendant deprived her of her constitutional rights under color of state law. Plaintiff alleges that Defendant, a police officer with the Norwegian Township (Schuylkill County) Police Department, issued a speeding citation to Plaintiff and warned her not to contest the citation. When Plaintiff pleaded not guilty and requested a hearing on the citation, Defendant withdrew the first citation and issued a second citation charging Plaintiff with a more serious speeding offense, carrying a higher fine and a higher point assessment on her driver's license. Plaintiff alleges that Defendant issued the second citation to retaliate against Plaintiff for exercising her constitutional right to a hearing. Plaintiff seeks monetary damages and injunctive relief, as well as costs and attorney's fees pursuant to 42 U.S.C. § 1988. Plaintiff filed a motion for a preliminary injunction to prohibit Defendant from prosecuting Plaintiff pursuant to the second citation. Pursuant to agreement of both parties and their counsel, the Court consolidated the trial of the action on the merits of the complaint with the hearing on Plaintiff's motion for a preliminary injunction, which it was agreed was for a permanent injunction. The trial to the Court took place on April 29, 1993. The following constitute the Court's findings of fact, discussion, and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

 I. Findings of Fact

 Plaintiff, Elizabeth H. Ruscavage (Ruscavage), is an adult individual residing at 1533 Mount Hope Avenue, Pottsville, Schuylkill County, Pennsylvania. Defendant, John Zuratt (Zuratt), is, and was at all times relevant to the allegations contained in the complaint, a duly appointed police officer with the Norwegian Township Police Department (Police Department) and was acting within the scope of his official duties and under color of state law.

 On Friday, January 15, 1993 at approximately 4:10 p.m., Ruscavage was operating a Dodge Caravan in Norwegian Township, Schuylkill County, Pennsylvania, and Zuratt was performing his official duties. Ruscavage was taking her daughter Amy to basketball practice. Using a Vascar speed detection system, Zuratt alleges that he "clocked" Ruscavage as traveling 50.3 miles per hour in a posted speed zone of 25 miles per hour. After stopping her vehicle, Zuratt issued to Ruscavage citation number 0000543 charging Ruscavage with violating the Pennsylvania Vehicle Code, 75 Pa. Cons. Stat. Ann. § 3361, driving a vehicle at a speed greater than is reasonable and prudent. The citation carried a total fine of $ 89. Upon conviction, Ruscavage would be assessed two points on her license. After informing Ruscavage about her excessive speed, in substance Zuratt told Ruscavage that he was "giving her a break." Zuratt informed Ruscavage that he could have issued a more serious citation that would carry a higher fine and a higher point assessment on her driver's license. Zuratt told Ruscavage that if she contested the citation, Zuratt would "throw the book at her."

 Plaintiff's husband, Jack Ruscavage, came to the Police Department to speak to Zuratt about the citation issued to his wife. Mr. Ruscavage complained to Zuratt about the citation because he was concerned about his wife receiving points on her driver's license, which would cause an increase in their automobile insurance premiums. Mr. Ruscavage complained to Zuratt about the placement of the Vascar lines in a downhill area, and stated that if Zuratt did not appear for the hearing on the citation, they would win. Zuratt said to Mr. Ruscavage that he always appears for hearings on citations that he issues.

 Ruscavage entered a plea of not guilty to the charge on the citation and requested a hearing which District Justice Charles Moran scheduled for January 27, 1993. At the request of Ruscavage's counsel, he continued the hearing to February 10, 1993.

 After he received the notice that stated that Ruscavage had pleaded not guilty and requested a hearing, Zuratt re-examined the citation. Zuratt was irritated by Mr. Ruscavage's visit. Zuratt decided to withdraw the citation and issue a second citation on the more serious offense of exceeding the maximum posted speed limits. Zuratt withdrew the first citation and issued a second citation as retaliation against Ruscavage because she chose to contest the first citation.

 Zuratt went to the office of District Justice Charles Moran and asked if he had the right to withdraw the citation. District Justice Moran told Zuratt that he had the right to withdraw the citation because it was a police document and that he must issue the second citation within thirty days. Zuratt did not tell District Justice Moran that he was irritated with Mr. Ruscavage and that he intended to retaliate against Ruscavage.

 On January 29, 1993 Zuratt withdrew citation number 0000453, by writing on the reverse side of the citation the words, "I hereby withdraw citation," and Zuratt filed citation number 0000568, charging Ruscavage with violating the Pennsylvania Vehicle Code, 75 Pa. Cons. Stat. Ann. § 3362(a)(3), exceeding the maximum posted speed limits. Zuratt charged Ruscavage with traveling 50.3 miles per hour in a 25 mile per hour zone. The citation carried a fine of $ 153. Upon conviction, Ruscavage's driver's license would be assessed four points. 75 Pa. Cons. Stat. Ann. § 1535(a). Zuratt filed the second citation within the 30 day statute of limitations period.

 Sometime in early February, Zuratt spoke to Assistant District Attorney James Corovan (Corovan) regarding the legality of withdrawing the original citation and issuing a new citation. Zuratt told Corovan that he had given Ruscavage a break, that she had requested a hearing, and that he wanted to take the break back. Corovan informed Zuratt that he was allowed to withdraw the first citation and issue a new citation within thirty days.

 On Monday, February 8, 1993 Ruscavage received a summons for a summary case requiring her to respond within ten days to the second citation. On Wednesday, February 10, 1993 at 2:00 p.m. Ruscavage and her attorney appeared at the office of District Justice Moran to defend against the allegations contained in the first citation. Zuratt did not notify Ruscavage prior to this date that he had withdrawn the first citation.

 Ruscavage was "stunned" and "upset" when Zuratt issued the first citation. She became "furious" when she received the second citation. The receipt of the second citation has aggravated her high blood pressure condition. She suffers from nervousness, sleeplessness, and an inability to concentrate on her work. Ruscavage suffered humiliation, ...


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