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SLATER v. MARSHALL

February 21, 1996

LINDA SLATER
v.
RICHARD E. MARSHALL and MONTGOMERY COUNTY COMMUNITY COLLEGE



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 21, 1996

 Defendant Richard E. Marshall has brought a counterclaim against Plaintiff Linda L. Slater and Counterclaim Defendant Andrew Meccariello. Counterclaim Count Two alleges that Slater and Meccariello conspired to falsely accuse Marshall of stalking Slater and to have Marshall falsely arrested on that accusation. Counterclaim Count III alleges that Slater and Meccariello violated 42 U.S.C. § 1985(2).

 Slater and Meccariello have filed a Motion to Dismiss pursuant to Rule 12(b)(6). However, in support of this Motion, they cite to evidence outside the pleadings. In response, Marshall supports his claims with evidence outside the pleadings. For this reason, we shall treat the Motion to Dismiss as one for Summary Judgment under Rule 56. Fed. R. Civ. P. 12(b).

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 1. Count Two: Civil Conspiracy

 Slater and Meccariello contend that Marshall cannot show the elements of a civil conspiracy. They cite the elements of such a claim as: two or more persons combining or agreeing with intent to do an unlawful act or to do an otherwise lawful act by unlawful means, with an unjustified intent to injure, and some overt act taken in furtherance of the common purpose or design. In re Asbestos School Litig., 46 F.3d 1284, 1292 (3d Cir. 1994); Rutherfoord v. Presbyterian-University Hosp., 417 Pa. Super. 316, 333, 612 A.2d 500, 508 (1992); Baker v. Rangos, 229 Pa. Super. 333, 351, 324 A.2d 498, 506 (1974).

 First, Slater and Meccariello maintain that there was no unlawfulness to their acts because Slater reasonably believed that Marshall was stalking her and so any acts they took were to protect Slater, not to entrap Marshall. Second, they assert that Marshall suffered no injury by their actions. Finally, they declare that there were no overt acts in furtherance of any alleged conspiracy. These arguments are supported with deposition testimony.

 In response, Marshall presents evidence that Slater and Meccariello did not believe that Marshall was stalking Slater, but made that accusation in order to extort money from Marshall. Further, Marshall presents evidence that Slater and Meccariello took overt acts to further their conspiracy by appearing at the location where the alleged entrapment was to occur, also by going to the police with their accusations and by their attorney sending Marshall a letter offering to drop the charges in exchange for money. These acts allegedly caused Marshall emotional harm, which constitutes legal injury.

 Based on the conflicting evidence presented, we find a genuine issue of material fact as to the elements of civil conspiracy, and so deny Slater and Meccariello's Motion to Dismiss, converted into a Motion for Summary Judgment, with respect to Count II.

 2. Count III: 42 U.S.C. § 1985(2)

 42 U.S.C. § 1985(2) prohibits conspiracies to intimidate witnesses. Elements of a claim are: "(1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to ...


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