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January 9, 1996


The opinion of the court was delivered by: MCLAUGHLIN


 Plaintiff filed the instant action against Defendants Dominick DiPaolo and Donald Gunter (former police officers with the Erie Police Department), William Vorsheck (a hypnotist formerly residing in Erie County), Edward Wayne Edwards (a former police informant), the Erie Police Department ("EPD"), and the City of Erie (the "City") alleging violations of 42 U.S.C. §§ 1983 and 1988 as well as various state law causes of action. These claims arise out of Plaintiff's arrest and conviction in 1980 on charges of arson and second degree murder for which he was eventually retried and acquitted. This Court has jurisdiction over Plaintiff's claims based on 28 U.S.C. §§ 1331, 1343 and 1367(a).

 Presently pending before this Court are motions by all Defendants to dismiss the Plaintiff's First Amended Complaint or, alternatively, for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure, For the reasons stated below, these motions will be granted in part and denied in part.


 Plaintiff's First Amended Complaint ("FAC") *fn1" alleges that the various Defendants acted to deprive Plaintiff of his rights under both federal and state law. Plaintiff states that, following the vacation of his conviction by the Pennsylvania Supreme Court, he discovered: (a) that testimony of the Commonwealth's principal witness was the false product of hypnotic suggestion performed by Vorsheck; (b) that critical exculpatory evidence had been deliberately concealed from him, from the judge who authorized his arrest warrant, and from the original trial court; (c) that Gunter and DiPaolo deliberately failed to record and retain evidence that implicated a different person in the crime; and (d) that certain exculpatory physical evidence was deliberately destroyed. (FAC P 15.)

 Plaintiff alleges that a taped statement of Deborah Sweet Adams was taken by Defendant Gunter on September 6, 1979 concerning the night of the fire. Plaintiff claims that both Gunter and DiPaolo knew that Adams's ability to observe and recall events on the night of the fire were severely impaired by her use of marijuana and her participation in sexual intercourse during the time leading up to the fire. (FAC P 18.) Furthermore, nothing in her September 6, 1979 statement directly inculpated Plaintiff. (FAC P 19.)

 However, on or about September 17, 1979, Defendants Gunter and DiPaolo caused Adams to be hypnotized by Defendant Vorsheck and allegedly assisted and participated themselves in the hypnosis. (FAC P 20.) Plaintiff claims that Gunter and DiPaolo informed Vorsheck prior to the session that Plaintiff was the principal suspect and that the purpose of the hypnosis was to develop evidence against him. (FAC P 21.) Vorsheck then allegedly performed hypnotic regression which was highly suggestive and included a series of leading questions. (Id.) Plaintiff avers that, as a result of the hypnosis, Adams adopted a new memory of the events leading up to the fire which caused her to believe that Plaintiff was the perpetrator. Thus, "Adams' [sic] false memory was the product of hypnosis and the plan and agreement among the defendants to bring false criminal charges against the plaintiff." (FAC P 22.) In furtherance of this conspiracy, Plaintiff claims, the Defendants intentionally falsified an affidavit in support of a request for an arrest warrant by stating that Adams's inculpatory statements had been made on September 6, 1979 and concealing the actual September 6, 1979 interview with Adams, which was inconsistent with her subsequent hypnotically induced statements. (Id.)

 Plaintiff also avers that DiPaolo and Gunter intentionally executed a false affidavit in support of a criminal complaint against Plaintiff which asserted that Plaintiff caused the August 30, 1979 fire and resulting deaths. (FAC P 23.) The affidavit and complaint are alleged to be false in several respects. For one, Plaintiff claims, the affidavit deliberately concealed the September 6, 1979 statement by Adams and further concealed the fact that Adams's incriminating statements were hypnotically induced under circumstances that would have reasonably led a court to conclude that the statements were false. The affidavit also stated that a second witness, Michael Jefferson, had corroborated Adams's story when, in fact, according to Plaintiff, Jefferson had provided exculpatory information. (FAC P 24.) As a result of this affidavit and complaint, an arrest warrant was issued for Plaintiff's arrest on March 25, 1980. (FAC P 25.) In order to bolster the false charges, DiPaolo and Gunter allegedly then:

 (FAC P 27.)

 In addition to the foregoing, Plaintiff avers that Defendants DiPaolo and Gunter actively solicited and recruited jailhouse informants against Plaintiff with reckless indifference as to the truth or falsity of the information provided. (FAC P 29.) Plaintiff avers that DiPaolo and Gunter recruited Defendant Edwards, a jailhouse informant, and utilized Edwards's statements in Plaintiff's prosecution despite their knowledge that Edwards had a history of dishonesty and despite the fact that at least two other jailhouse informants recruited to testify against Plaintiff had repudiated their statements as being false. (FAC PP 30-31.) According to Plaintiff, Edwards falsely stated that Plaintiff had confessed to him while the two were inmates at Western Penitentiary; however, Plaintiff had already been released from the penitentiary at the time of this supposed confession. Plaintiff claims that, notwithstanding this inconsistency, Defendants relied on Edwards's testimony in prosecuting Plaintiff, (FAC P 32.)

 With respect to his second trial, Plaintiff alleges that Defendant DiPaolo allowed Edwards to falsely attribute new uncharged crimes to Plaintiff and a new motive for allegedly setting the fire. He claims that DiPaolo knew or should have known that Edwards's statements were false inasmuch as certain statements attributed to Plaintiff by Edwards would have occurred at a time when Plaintiff was no longer incarcerated. (FAC P 33.) In order to corroborate Edwards, information was allegedly sought and obtained to show a stab wound to the neck of one of the fire victims, the new theory being that Plaintiff set the fire to conceal the stab wound. Plaintiff avers that the original autopsy revealed no evidence of a neck wound and that any wound received was inflicted post mortem. (FAC P 34.)

 The First Amended Complaint asserts that Defendants DiPaolo, Gunter, Vorsheck, and Edwards engaged in an unlawful conspiracy to deprive Plaintiff of his federal constitutional and state rights, including the right to be free from false arrest, false imprisonment, and malicious prosecution. (FAC P 28.) As for the Erie Police Department and the City of Erie, the First Amended Complaint alleges a failure by those Defendants to train, discipline and supervise their agents, servants, and/or employees with respect to the constitutional rights of suspects and criminal defendants. (FAC P 36.) Plaintiff claims that this failure to properly train, supervise and discipline caused the violation of his constitutional rights. (FAC P 37.)

 The Amended Complaint sets forth two counts. Count I asserts claims under 42 U.S.C. §§ 1983 and 1988 for alleged violations of Plaintiff's fourth amendment right to be free from unlawful seizure (including freedom from arrests without probable cause, false imprisonment, and malicious prosecution) and his fifth and fourteenth amendment rights to due process of law. (FAC P 40.) Plaintiff's second count asserts state law claims for false arrest and imprisonment, malicious prosecution, spoliation of evidence, intentional infliction of emotional distress, defamation, abuse of process, willful misconduct, prima facie tort, conspiracy tort, negligence and gross negligence. (FAC P 42.)

 All Defendants have filed motions to dismiss the Plaintiff's First Amended Complaint or, in the alternative, for a more definite statement under Fed. R. Civ. P. 12(e).


 On a Rule 12(b)(6) motion to dismiss, this Court must ordinarily accept the facts presented in the pleadings, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party and may not dismiss the Complaint unless it appears that Plaintiff can prove no set of facts entitling him to relief. Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 71 (3d Cir. 1994); Rocks v. City of Philadelphia, 868 F.2d 644, 654 (3d Cir. 1989); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 (1985); Society Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980). *fn2"


 A. "Under Color of Law" Issue

 Pursuant to 42 U.S.C. § 1983, a cause of action exists against:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any ... person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws ...

 In determining whether a defendant acted under "color of state law" for purposes of § 1983, courts employ the same analysis used in determining whether an individual is a "state actor" within the meaning of the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir. 1984), cert. denied, 471 U.S. 1015, 85 L. Ed. 2d 300, 105 S. Ct. 2018 (1985). Vorsheck and Edwards contend that they cannot be liable under § 1983 because they did not act under color of state law.

 "The Supreme Court in varying circumstances appears to utilize three discrete tests to determine whether there has been state action." Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir.), cert. denied, U.S. , 133 L. Ed. 2d 107, 116 S. Ct. 165 (1995). The first test inquires whether "the private entity has exercised powers that are traditionally the exclusive prerogative of the state." Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982)). See also Evans v. Newton, 382 U.S. 296, 15 L. Ed. 2d 373, 86 S. Ct. 486 (1966) (private trustees who operated public park in racially discriminatory manner were state actors); Terry v. Adams, 345 U.S. 461, 97 L. Ed. 1152, 73 S. Ct. 809 (1953) (private organization conducting pre-primary elections for the purpose of sending candidates to primary election was state actor). Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (private utility company did not act under color of state law despite the fact that it was heavily regulated by the state and held at least a partial ...

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