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October 6, 1994

JOHN A. PANSY, Plaintiff
ERNEST D. PREATE, JR., et al., Defendants

The opinion of the court was delivered by: RICHARD P. CONABOY

 This is a civil rights action filed by Plaintiff Pansy on June 8, 1992, for compensatory and punitive damages pursuant to the Civil Rights Act of 1979, 42 U.S.C. § 1983, alleging the Defendants, all of whom are employed by the Office of the Attorney General for the State of Pennsylvania, violated his constitutional rights while they acted under the color of state law during the course of an investigation into alleged theft of coins from parking meters. (Doc.No. 1). Plaintiff is also asserting supplemental jurisdiction pursuant to 28 U.S.C. § 1367, in that he alleges state law claims.

 The Complaint was answered by the Defendants' on July 15, 1992. The action is currently before the Court on the Defendants' Motion for Summary Judgment. The Defendants filed their Motion on December 6, 1993, and their brief in support was filed on December 20, 1993. The Plaintiff filed a Brief in Opposition to the Defendants' Motion. (Doc.No. 59). The Defendants subsequently filed a reply brief. (Doc.No. 78). The Court heard oral argument from both Plaintiff and Defendants' counsel on April 25, 1994. The Court notes that both sides have submitted numerous documents in support of their briefs. The action is now ripe for review.


 Plaintiff John A. Pansy, is a resident of 849 Phillips Street, Stroudsburg, Pennsylvania. He is currently a member of the Stroudsburg Police Department and during the course of the investigation which eventually led to this suit was the Chief of Police. The Defendants in this matter are Ernest D. Preate, Jr., the Attorney General for the State of Pennsylvania; John Burfete, Deputy Attorney General; Lois Lichtenwalner, Deputy Attorney General; Michael Crossin, Joseph Farkus, Charles Read, Thomas Gallagher and John Purcell, all of whom are investigative agents for the State Attorney General's Office.

 This action arose during Plaintiff's tenure as the Chief of the Borough's Police Department. He was investigated and later arrested by agents of the Pennsylvania Attorney General's Office. Plaintiff was charged with offenses relating to the alleged improper handling of parking meter money.

 During the summer of 1990 and throughout the remainder of the year and into the spring of 1991, the State Attorney General's Office conducted an investigation into the reported decline of revenue coming from the parking meters in the Borough of Stroudsburg *fn1" Following the investigation conducted by Defendants Crossin, Farkus, Read, Gallagher and Purcell, along with testimony taken before the Seventh Statewide Investigating Grand Jury, the Grand Jury on April 11, 1991, issued Presentment No. 25, against Plaintiff for violations of the Pennsylvania Crimes Code; Theft by Failure to Make Required Disposition of Funds Received-18 Pa. Cons. Stat. § 3927 (1973); Theft by Unlawful Taking or Disposition-18 Pa. Cons. Stat. § 3921 (1973); Receiving Stolen Property-18 Pa. Cons. Stat. § 3925 (1973) and Dealing in Proceeds of Unlawful Activities-18 Pa. Cons. Stat. § 5111 (1989).

 Hon. G. Thomas Gates, Supervising Judge of the investigating Grand Jury, issued an Order on April 12, 1991, accepting Presentment No. 25 and authorizing the Attorney General's Office to prosecute the Plaintiff as recommended in the presentment. Thereafter, on April 17, 1991, Defendant Crossin filed two criminal complaints and affidavits of probable cause charging Plaintiff with crimes previously indicated.

 Due to the nature and notoriety of the case, on November 18, 1991, a jury was selected from Adams County, Pennsylvania, pursuant to an order granting Plaintiff's request for change of venue. The jury was transported to Monroe County to sit and hear the trial which commenced on November 19, 1991 and lasted to December 6, 1991. At the conclusion of the trial, Plaintiff Pansy was acquitted on all criminal charges.

 Plaintiff commenced this action approximately seven months after the conclusion of the trial.

 In Count I, Plaintiff alleges Michael Crossin, Joseph Farkus and John Purcell violated his constitutional rights when they initiated a criminal proceeding against the Plaintiff without probable cause, and following what the Plaintiff claims was an inadequate and unreasonable investigation. Furthermore, Plaintiff claims Defendants Crossin, Farkus and Purcell maliciously prosecuted him without probable cause, charging them with false arrest and abuse of process. (Doc.No. 1).

 In Count II, Plaintiff Pansy alleges Defendants Preate, Burfete and Lichtenwalner gave improper legal advice to Defendant Cross in prompting Cross in to file the criminal complaints against the Plaintiff.

 In Count III, Plaintiff alleges the common law torts of Assault and Battery, Intentional Infliction of Emotional Distress, False Imprisonment and constitutional violations for false arrest, excessive force and false imprisonment against Defendants Read, Crossin and Farkus. These allegations stem from the evening of December 12, 1990, when Defendants Crossin, Read and Farkus secured a search warrant from Presiding Judge G. Thomas Gates and executed it at Plaintiff Pansy's residence at 849 Phillips Street, Stroudsburg. Plaintiff alleges the Defendants used excessive force when they executed the search warrant at his home, clearly beyond the scope of their duties.

 Finally, in Count IV, Plaintiff alleges that Defendants Gallagher and Purcell failed to adequately train and supervise Defendants Crossin, Farkus and Read in such a way that led to the violation of the Plaintiff's constitutional rights.



 In considering a Motion for Summary Judgment, we must ascertain, on the basis of pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, whether or not there are any genuine issues of material fact, and if none, whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Schleig v. Communications Satellite Corp., 698 F. Supp. 1241 (M.D. Pa. 1988). An issue of material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Incorporated, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The "burden to demonstrate the absence of material fact remains with the moving party regardless of which party would have the burden of persuasions at trial." Levendos v. Stern Entertainment., 860 F.2d 1227, 1229 (3rd Cir. 1988). The moving party's "burden" under Rule 56(c), however, is discharged by demonstrating to the Court the absence of evidence to support the non-moving party's case. Trap Rock Industries, Inc. v. Local 825, International Union of Operating Engineers, AFL-CIO, No. 92-5281, slip op. 16-17 (3rd Cir. December 30, 1992).

 In defending against a Motion for Summary Judgment, the nonmoving party may not "rest upon mere allegations, general denials, or...vague statements..." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3rd Cir. 1991). If the non-moving party's evidence "is merely colorable,... or is not significantly probative,...summary judgment may be granted." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir. 1992)(quoting Anderson, 477 U.S. at 249-50). Thus, "while the facts must be viewed in the light most favorable to the nonmoving party and all inferences must be drawn in that parties in favor...there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party". Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir. 1992).

 A. Defendants Crossin, Farkus and Purcell.

 1. Malicious Prosecutions.

 Plaintiff asserts the Defendants maliciously prosecuted him without probable cause, when, in an abuse of the process, they falsely arrested him and continued the proceeding.

 Pennsylvania law requires that in a malicious prosecution claim, a Plaintiff must prove the Defendants (1) instituted the proceedings (2) without probable cause and (3) with actual malice and (4) that the proceedings terminated in favor of the Plaintiff. See Griffiths v. Cigna Corp., 988 F.2d 457 (3rd Cir. 1993) (citing Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (1988); See also Valenti v. Sheeler, 765 F. Supp. 227 (E.D. Pa. 1991). If any of these elements cannot be proven the malicious prosecution claim cannot prevail.

 The Defendants do not dispute the fact the criminal proceedings terminated in Plaintiff Pansy's favor. They clearly and rather tenaciously dispute the remaining elements. Specifically, they refute the malice element. Malice includes ill-will in the sense of spite, the use of a prosecution for an extraneous, improper purpose, or the reckless and oppressive disregard of the Plaintiff's rights. Lee v. Mihalich, 847 F.2d 66, 70 (3rd Cir. 1988). Malice can be inferred from the absence of probable cause. Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940 (1988).

 The gravamen of the Plaintiff's federal claims against the Defendants is that he was arrested and prosecuted without probable cause. For an arrest to be constitutionally valid, it must be made with probable cause. Valenti v. Sheeler, 765 F. Supp. 227 (E.D. 1991). Although probable cause requires more than mere suspicion, it does not require that the evidence at the time of the arrest be sufficient to prove guilt beyond a reasonable doubt. Warlick v. Cross, 969 F.2d 303, 306 (7th Cir. 1992); United States v. Glasser, 750 F.2d 1197, 1205 (3rd Cir. 1984) (quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964)). Rather, probable cause exists if at the moment of the arrest, the facts and circumstances within the knowledge of the police officers were sufficient to warrant a prudent person to believe that the Plaintiff had committed or was committing an offense, Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991). In Illinois v. Gates, 463 U.S. 1237, 77 L. Ed. 2d 1453, 104 S. Ct. 33 (1983), the United States Supreme Court adopted a "totality of the circumstances" approach to evaluating whether or not probable cause exists for the issuance of a search warrant. Id. at 230-241. The determination by a police officer that probable cause exists for a warrantless arrest is fundamentally a factual analysis that must be performed by the officer at the scene. Thus, the Court stated, probable cause is a "fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Id at 232.

 The ultimate finding of guilt or innocence, or even dismissal of charges arising out of an arrest and detention has no bearing on whether the arrest was valid. Pierson v. Ray, 386 U.S. 547, 555, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). Otherwise, every time charges filed against an arrestee were dismissed or dropped, the police officers involved would be liable for false arrest or violations of the arrestee's civil rights. Id. The conduct alleged to constitute a deprivation of constitutional rights must have been unreasonable under the circumstances and facts known by the police officer at the time the conduct occurred.

 Where there is no genuine issue as to any material fact and where credibility conflicts are absent, the issue of probable cause may be resolved by summary judgment. Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192 (3rd Cir. 1984). When it is appropriate to determine the issue of probable cause by summary judgment, it is the function of the Court to determine whether the objective facts available to the officers at the time of the arrest were sufficient to justify a reasonable belief that an offense was committed or was being committed. United States v. Glasser, 750 F.2d 1197, 1206 (3rd Cir. 1984).

 A review of the record shows that Borough Manager Carl Rogers, reported a substantial loss of revenue from parking meters for the years 1987 to 1989 when the revenue fell from $ 163,959 to $ 108,424. Thereafter, at the Borough's request, the agents from the Office of the Attorney General, began an investigation into the loss of the revenue. On June 13, 1990, Defendant Crossin interviewed Borough Manager Carl Rodgers, who was familiar with the operation of the Borough of Stroudsburg. Mr. Rodgers advised Defendant Crossin that certain irregularities existed regarding the collection within the Borough of Stroudsburg, and that revenue from the parking meters had decreased approximately $ 50,000.00 between the years of 1988 and 1989.

 Rodgers also advised Defendant Cross in during the period that the Stroudsburg Borough Police Department was given the added responsibility of counting the coins collected from the borough's parking meters. It was also learned during the course of the statements taken that Plaintiff Pansy personally supervised the collection of parking meter money. Based on this information, Defendant Crossin, on Wednesday, August 1, 1990, conducted surveillance of the area where money was collected from the parking meters. Plaintiff was seen placing the parking meter collection in the trunk of his black Ford Taurus and parking the Taurus in the garage located beneath his residence. Later that day, after a second collection, Plaintiff again met with the meter maids to remove the meter money. Plaintiff Pansy's car was also again seen on the block where his residence is located.

 Thereafter, Defendant Crossin and other agents from the office of the Attorney General decided to place marked coins in certain parking meters that were collected by the meter maids and later turned over to the Plaintiff. Defendant Crossin marked 800 quarters with an invisible fluorescent marking fluid which showed a brilliant blue when exposed to a long wave of ultra violet light. On Monday evening, August 13, 1990, and Tuesday morning, August 14, 1990, Defendant Crossin placed these quarters in parking meters at specified locations within the Borough of Stroudsburg. On August 16, 1990, Plaintiff Pansy collected the coins from the meter maids and drove his car to his home where he parked inside his garage. The Defendants made arrangements with officials at the First Eastern Bank to scan the deposits from the meter collection. Since all the parking meters in which marked coins were placed had not been collected, 200 marked coins remained in meters located on the north and south side of Monroe Street. Of the remaining 600 marked coins, a total of 362 specifically marked quarters were found within the collection. A total of 238 marked coins remained unaccounted for.

 The Defendants repeated this process again on Monday, August 20, 1990 and Tuesday, August 21, 1990, when 700 newly marked quarters were placed into specific locations. On Wednesday, August 22, 1990, Plaintiff Pansy was seen collecting the meter money and was driving toward his home when he saw an agent from the Attorney General's office parked in the area. Plaintiff Pansy did not park in his driveway or in front of his home. *fn2" On August 28, 1990, Defendant Crossin met with officials from the First Eastern Bank to scan the deposit of quarters. Defendant Crossin discovered of the total 900 marked quarters which should have been present in the deposit, 897 marked quarters were returned. Thereafter, Defendant Cross in inserted 200 newly marked quarters into parking meters in two collections zones on Thursday and Friday, August 30 and 31, 1990.

 Defendants scanned the collections on Thursday, September 6 and Wednesday, September 12, 1990, when Agent Crossin recovered 94 marked quarters and 78 quarters from two different locations. He discovered a total of 28 marked quarters were missing. Furthermore, one of the three marked quarters from the August 22, 1990 collection was found in a collection bag.

 Sometime later, Defendant Crossin discovered that Plaintiff Pansy became aware the coins in the meter collection were marked with ultra violet fluid. *fn3" The Defendants then devised a new system for marking the coins, where they scribed the quarters with a particular lettering on each one so that they could determine that it was part of the number of quarters deposited in the meters. On October 12, 1990, 400 scribed quarters were placed into the parking meters in four different zones. On Thursday, October 18, 1990, 178 marked quarters were found from a total of 235 scribed coins placed in meters. There were fifty-seven (57) marked quarters missing. On October 25, 1990, the Defendants scanned the collection of October 24, 1990. At this time, there was only 102 marked coins found, and sixty-three marked quarters remained missing. Defendant Crossin continued to monitor the meter deposits at the local banks where the meter collections were deposited, and apparently, no marked quarters were recovered.

 Defendant Cross in and other agents from the Attorney General's Office, continued to watch the Plaintiff. On November 28 and Wednesday, December 5, 1990, Plaintiff Pansy was seen meeting with the meter maids to pick-up the meter collection, and then drive to his home, where he drove his car into the garage located beneath his residence.

 The Defendants placed 640 specially scribed quarters into parking meters located in certain zones in the Borough on December 6, 7 and 10, 1990. On December 12, 1990, Plaintiff Pansy was observed returning to his residence, after picking up a coin collection from the meter maids. The meter collection was examined by the Defendants and it was learned that marked coins were missing.

 The Defendants secured a search warrant that night from Presiding Judge G. Thomas Gates, which was executed on December 12, 1990, at Plaintiff Pansy's residence located at 849 Phillips Street. *fn4"

 As a result of the search of Plaintiff's home, the Defendants located a blue cooler on the floor of Plaintiff's Pansy's bedroom closet, containing $ 309.64 in change and an index card marked "12/12/90, check money". Of the many quarters found within the cooler, 76 were marked. Another item, a brown briefcase bag containing $ 309.35 in change and an index card marked "4 October 90 meter collection, check for marked money per Mayor Gross", was found. A five gallon water jug containing $ 523.24 in change was also found, as well as coins from Plaintiff's ashtray, vehicle, and several bags, totalling $ 55.56. Altogether, approximately, $ 1,197.79 in coins was found within Plaintiff's home.

 On the evening Mayor Gross spoke with Crossin, Mayor Gross gave Crossin permission to search the evidence vault where Pansy told the mayor he kept the coins. Defendants found several paper bags marked "no parking" containing coins. Inside the bags a number of coins were located and examined by the Defendants. One of the coins inside the bags were marked with fluorescent fluid.

 Thereafter, on December 21, 1990, Plaintiff Pansy gave a sworn statement to his attorney, which was later introduced into evidence, before the Grand Jury. (Doc.No. 60). Plaintiff Pansy stated the reason for the loss of meter revenue was the sewer construction project which occurred from October 1988 through the early spring of 1989. Plaintiff Pansy also said since he found marked coins in the meters he conducted his own investigation into the meters. As was earlier stated, Plaintiff said he received permission from the Mayor to hold some of the marked coins in the evidence vault in order to maintain evidence of what he found and to confront possible accusers with it. Furthermore, Plaintiff Pansy said he received permission to take the collection bags to his home and remove some marked coins, which accounted for the change in collection procedures. Plaintiff Pansy also alleged the security system maintained by the borough was lax and the meter collections were often dropped off in canvas bags at the entry to First Eastern Bank and left unaccounted for.

 The Grand Jury, in subsequent months heard testimony from numerous witnesses who were present or former employees of the borough. Their testimony refuted the ...

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