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August 4, 1999


The opinion of the court was delivered by: Vanaskie, District Judge.


On January 8, 1997, plaintiff Heath Williams filed the instant action against Pennsylvania State Police Officers Larry Fedor and James Sartori, Philip Checchia (an investigator for the State's Attorney General's Office), Kevin Kelly (the Police Chief for the Borough of Stroudsburg), the Borough of Stroudsburg and Monroe County. (Dkt. Entry 1 at 1-2.) Williams' suit is premised upon defendants' decision to prosecute him for perjury and other charges based upon the alleged inconsistency between his statements in an "off-the-record" interview in 1991 and his grand jury testimony in 1995, even though he had been promised that he would not be prosecuted for anything he said during the 1991 interview. Williams has asserted claims under 42 U.S.C. § 1983 and Pennsylvania common law for malicious prosecution, false arrest and abuse of process. He also asserts that the prosecution violated his Fifth Amendment privilege against self-incrimination and his First Amendment right to seek redress for alleged wrongs purportedly committed by state and local officials.


From plaintiff's perspective, this case is part of the John Pansy saga. In the late 1980's and early 1990's, Pansy had been Chief of the Borough of Stroudsburg (the Borough) Police Department. In 1991, he was prosecuted by the Pennsylvania Attorney General's Office for alleged improper handling of parking meter money. Pansy was acquitted of these charges and brought an action against members of the Attorney General's Office. This litigation ended with summary judgment being entered in favor of the defendants, a result affirmed by the Third Circuit. Pansy v. Preate, 870 F. Supp. 612 (M.D.Pa. 1994), aff'd mem., 61 F.3d 896 (3d Cir. 1995). (Aff. of James A. Swetz, Esq., Exhibits 1 and 2.)

Pansy had also brought an action against the Borough. As part of the settlement of this lawsuit, Pansy was employed by the Borough as a Detective/Lieutenant. In this capacity, Pansy was subordinate to defendant Kevin Kelly, who was appointed Chief of the Borough Police Department in 1992.

Pansy's relationship with Kelly was not always harmonious. In the fall of 1994, Kelly participated in a meeting with Fedor and Sartori, who were Pennsylvania State Police Officers, Checchia, an investigator for the Attorney General's Office, Monroe County Assistant District Attorney Andrew Worthington and Monroe County District Attorney James Gregor. During this meeting there was a discussion of potential criminal acts by Pansy and Kenneth Nevil, also a Borough Police officer. Checchia and Sartori indicated that Williams could implicate Nevil in criminal conduct, and Nevil in turn could implicate Pansy. (Checchia Dep. at 33-34; Sartori Dep. at 29-32.)

The belief that Williams would implicate Nevil was based upon statements purportedly made by Williams in 1991 when he was interviewed by state officials. Williams had been hired by the Borough Police Department in April or May of 1990. (Monroe Cty's Stmt. of Facts, at ¶ 2.)*fn1 Between 1989 and 1991, the Pennsylvania State Police, in coordination with the Pennsylvania Attorney General's Office, investigated the Stroudsburg Police Department. (Monroe Cty's Stmt. of Facts (Dkt. Entry 37) at ¶ 22; Williams' Answer to Monroe County's Stmt. of Material Facts (Dkt. Entry 53) at ¶ 22.) Williams was interviewed on March 27, 1991 and April 2, 1991 by the State Police in the presence of his attorney, William Watkins, and defendant Checchia of the Office of the Attorney General. (Monroe Cty's Stmt. of Facts at ¶ 23; Williams Response to Monroe Cty's Stmt. of Facts at ¶ 23.)*fn2 "The purpose of the meetings was to show Williams arrest warrant affidavits that had been prepared and filed by Detective Kenneth Nevil in criminal cases that he had prosecuted and to question Williams as to whether the affidavits contained false statements made by Nevil." (Monroe Cty's Stmt. of Facts at ¶ 24.)*fn3 Williams answered the investigators' questions after receiving a written promise from Chief Deputy Attorney General John J. Burfete, Jr. that "no statements made by or other information provided by [Williams] will be used against [him] in any criminal case." (Ex. "D" to Monroe Cty's Stmt. of Facts.) The interview of Williams was described as an "off-the-record proffer." (Id.) During the course of the interview, Williams purportedly provided information that implicated Nevil in making false statements in arrest warrant affidavits. (Ex. "B" and "C" to Monroe Cty's Stmt. of Facts.) The interview was not recorded auraly or stenographically, and the only record of it are "General Investigation Reports" prepared by State Trooper Kresge. (Id.) Significantly, Williams was not asked to verify the contents of Trooper Kresge's reports in 1991.*fn4

In 1995, District Attorney Gregor convened an investigative grand jury. (Monroe Cty. Stmt. of Facts, ¶ 32.)*fn5 The purpose of the grand jury was to investigate the Stroudsburg Police department and, in particular, Officers Nevil and Pansy. (Gregor Dep. at 20.)*fn6 Gregor called Williams to testify before the grand jury because he was told by Checchia and Sartori that Williams could provide testimony against Nevil and Pansy. (Monroe Cty. Stmt of Facts, ¶ 36.)*fn7

Before Williams testified, Gregor and Watkins (Williams' lawyer) met in chambers with Monroe County President Judge Ronald E. Vican. During that meeting, President Judge Vican was informed of the 1991 letter from Chief Deputy Attorney General Burfete. The purpose of the meeting was not to obtain a judicial grant of immunity from prosecution under 42 Pa.C.S. § 5947. (Gregor Dep. at 27-29.) Instead, the purpose of the meeting was to have D.A. Gregor confirm that he was bound by Burfete's letter agreement. (Gregor Dep. at 29.) By letter dated April 5, 1995 from Gregor to Williams' lawyer, Gregor confirmed that the District Attorney's Office would be bound by Burfete's promise.

Williams testified before the grand jury on two occasions: March 15, 1995 and April 5, 1995. (Monroe Cty. Stmt. of Facts, ¶ 46.) On March 15, 1995, Williams testified to the grand jury that he could not recall the specifics of his interviews with Checchia and Kresge in 1991. (Williams Grand Jury Testimony at 50-51, Monroe Cty's Stmt. of Facts, Exhibit "G.") Gregor called Williams as a witness before the grand jury for the second time on April 5, 1995, for the purposes of determining whether he could refresh Williams' recollection regarding what he had previously told the state police. (Monroe Cty's Stmt. of Facts, ¶ 57.) Williams continued to claim that he could not recall his earlier statements. He also insisted that Kresge's report was inaccurate. (Monroe Cty's Stmt. of Facts, ¶ 58; Williams Response to Monroe Cty's Stmt. of Facts, ¶ 58.) Gregor continued to question Williams regarding the 1991 meetings, but Williams continued to deny any recollection of accusing Nevil of making false statements in criminal affidavits. (Monroe Cty's Stmt. of Facts, ¶ 59.)*fn8

Gregor and his staff, with the assistance of Troopers Kresge and Fedor, prepared a presentment that was handed down by the grand jury. (Id. at ¶ 64.) The presentment recommended that the District Attorney prosecute Williams for false swearing, in violation of 18 Pa.C.S.A. § 4903, false reports, in violation of 18 Pa.C.S.A. § 4906, perjury, in violation of 18 Pa.C.S.A. § 4902, and obstruction of justice, in violation of 18 Pa.C.S.A. § 5101.*fn9 The presentment essentially accused Williams of lying during his 1991 interview and/or lying during his 1995 grand jury testimony.

On the basis of the presentment, a Criminal Complaint and Probable Cause Affidavit was signed by defendants Fedor and Checchia on August 30, 1995.*fn10 (Checchia et al. Stmt. of Fact, ¶ 24.) District Attorney Gregor approved the Criminal Complaint and Probable Cause Affidavit. (Id.) The Criminal Complaint and Probable Cause Affidavit incorporated by reference the grand jury presentment against Williams. The criminal complaint contained 36 counts, all of which derived in some manner from the 1991 interview and Williams' grand jury testimony. Neither the criminal complaint nor the probable cause affidavits mentioned Deputy Attorney General Burfete's 1991 letter pursuant to which Williams made the "off the record proffer."

District Attorney Gregor lost his re-election bid in November of 1995. The new District Attorney, Mark Pazuhanich, had previously represented Williams. (Monroe Cty. Stmt. of Facts, ¶ 68.) Consequently, a special prosecutor was appointed to take over the prosecution of Williams. The Monroe County District Attorney's office was not involved in the prosecution of Williams after Gregor left office on December 31, 1995. (Monroe Cty's Stmt. of Facts at 10.)

Williams, through counsel, filed an omnibus pretrial motion asking that the charges against him be dismissed. (Id.) On June 24, 1996, the Hon. Peter O'Brien of the Court of Common Pleas of Monroe County dismissed the charges against Williams, holding that Williams' agreement with Deputy Attorney General Burfete constituted a non-prosecution agreement. (Id.; Judge O'Brien Opinion, Monroe Cty's Stmt. of Facts, Exhibit "L.") In his Opinion, Judge O'Brien described the breach of the non-prosecution agreement as a "blatant abuse of prosecutorial authority. . . ."

The special prosecutor appealed the dismissal of the charges to the Pennsylvania Superior Court. (Monroe Cty. Stmt. of Facts, ¶ 73.) The appeal was dismissed because the special prosecutor failed to file a supporting brief. (Id., ¶ 74.) It is undisputed that the Monroe County District Attorney's Office did not participate in the appeal and was not responsible for the dismissal of the appeal. (Id., ¶ 75.)*fn11

This civil rights action followed the conclusion of the criminal proceedings against Williams. There are three classes of defendants: (1) Monroe County, which is being sued on the basis of action and inaction of District Attorney Gregor and his staff; (2) Checchia and State Troopers Fedor and Sartori who are being sued for their alleged involvement in the prosecution of Williams notwithstanding the existence of the non-prosecution agreement; and (3) Borough Police Chief Kelly and the Borough itself, who essentially are being sued because of Chief Kelly's alleged involvement in a conspiracy to remove Pansy from the Borough Police Force by pressuring Williams to implicate Nevil who would then be pressured to implicate Pansy. Because there are distinct legal issues as to each category of defendants, the summary judgment motions of each category will be addressed separately.


A. Summary Judgment Standard

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. at 322, 329, 106 S.Ct. 2548 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

B. Williams' Claims Against Monroe County

Williams seeks to impose liability on Monroe County on two separate theories. First, he asserts that in Pennsylvania "a district attorney incurs liability for the County by making prosecutorial decisions." (Brf. in Opp. to Monroe Cty's S.J. Mot. (Dkt. Entry 50) at 14.) He thus claims that "by attribution," a D.A.'s "decision would be considered an official decision of the government unit. . . ." (Id. at 13.) In this regard, Williams alleges in his Complaint that Monroe County "through its duly elected District Attorney, had knowledge or should have had knowledge that Plaintiff was protected by a promise of immunity and could not be prosecuted as a consequence of statements he made in the April, 1991 proffer meeting and that Defendants Sartori and Checchia had a personal animus against Plaintiff." (Complaint, ¶ 64.) Williams further asserts:

  Defendant County of Monroe, acting through its duly
  elected District Attorney, directly or indirectly
  and under color of law, approved or ratified the
  unlawful, deliberate, malicious, reckless, and wanton
  conduct of Defendants Sartori, Checchia and/or Kelly
  and assistant prosecutors, in their dealings with
  Plaintiff including but not limited to the
  institution of criminal proceedings against
  Plaintiff, the unlawful retaliation against him for
  the exercise of his right of association and petition
  for redress of grievances, the attempt to pressure
  Plaintiff into giving information against John A.
  Pansy he did not have, and the denial of Plaintiff's
  Fourth and Fifth Amendment rights. . . . [Id., ¶
  66; emphasis added.]

With respect to this liability by attribution theory, Williams, in his Brief in Opposition to Monroe County's Summary Judgment Motion, argues:

  District Attorney Gregor made the following direct
  decisions which render the County liable if he is
  considered a County officer:
  a. He approved the criminal complaint against
  Williams and decided to prosecute Williams despite
  the non-prosecution agreement and the failure to
  advise the District Justice of the existence of the
  agreement; and
  b. He decided to use "pocket immunity" as opposed to
  Pennsylvania's statutory immunity and thereafter used
  involuntary statements in adversary hearings against
  c. He pursued a retaliatory prosecution against
  Williams simply because his performance on the stand
  did not meet expectations.

(Brf. in Opp. to Monroe Cty. S.J. Mot. at 17.)

Williams' second theory of liability is based upon the District Attorney's failure "to supervise and/or train employees and police officers whose supervision he assumed." (Id.) According to Williams, liability should be imposed upon the County because:

  The County of Monroe, acting through the District
  Attorney's Office, failed to supervise and/or train
  members of the District Attorney's Office and
  investigators concerning witness immunity, the
  distinction between statutory and "pocket" immunity,
  the effect of "pocket" immunity, what was necessary
  to be in a criminal complaint affidavit, and conduct
  before the Grand Jury. The record also demonstrates a
  failure to supervise an assistant district attorney
  who was also a member of the Borough of Stroudsburg
  Police Civil Service Commission concerning a
  prosecutor's duty not to use the criminal process to
  force John Pansy from the police department. [Brf. in
  Opp. to Monroe Cty. S.J. Mot. at 22; emphasis added.]

1. County Liability for Prosecutorial Decisions

Williams has not sued the District Attorney and concedes that Gregor, in his individual capacity, would be absolutely immune from liability for his decision to prosecute Williams. (Brief in Opp. to Monroe Cty. S.J. Mot. at 14 n. 3.) Asserting that Monroe County cannot claim the absolute immunity that is a personal to a prosecutor, see Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), Williams insists that the decision of the District Attorney to prosecute him is an official "edict or act" of a county policymaker that is properly attributed to Monroe County under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny.

Under Monell, "[a] public entity such as [Monroe] County may be held liable for the violation of a Constitutional right under 42 U.S.C. § 1983 only when the alleged unconstitutional action executes or implements policy or a decision officially adopted or promulgated by those whose acts may fairly be said to represent official policy." Reitz v. County of Bucks, 125 F.3d 139, 144 (3d Cir. 1997). Alternatively, "in the absence of an unconstitutional policy, a municipality's failure to properly train its employees and officers can create an actionable violation of a party's constitutional rights under § 1983 . . . where the failure to train amounts to deliberate indifference to the rights of persons with whom the [municipal employees] come into contact.'" Id. at 145.

The essential premise of Williams' first liability theory is that a District Attorney acts as a county policymaker when making prosecutorial decisions. Thus, the threshold question on Williams' first liability theory is whether the District Attorney's prosecutorial decisions represent official County policy.

Both Monroe County and Williams have addressed this question in the context of Eleventh Amendment immunity analysis. But whether a particular official acts as a county or state policymaker for purposes of municipal liability is analytical distinct from the question of whether a particular person is entitled to claim the state's Eleventh Amendment immunity. See Hudson v. City of New Orleans, 174 F.3d 677, 682 n. 1 (5th Cir. 1999). The appropriate analytical framework is not that which applies to Eleventh Amendment immunity matters, but instead is that which was established in McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997).

In McMillian, certain factors weighed in favor of a determination that the Sheriff acted as a county policy maker. In particular, the fact that he was paid by the county, his equipment, supplies, and reimbursement for expenses was provided by the county, his jurisdiction was limited to the borders of the county, and he was elected by the voters in his county all "cut in favor of the conclusion that sheriffs are county officials." Id. at 791, 117 S.Ct. 1734. But these factors were outweighed by (a) Alabama constitutional provisions that indicated that the sheriff for each county was part of the state's executive department; (b) Alabama Supreme Court pronouncements that county sheriffs are state officers when acting in their law enforcement capacity; and (c) Alabama statutory provisions that indicated that county sheriffs represented the state in law enforcement activities. In this regard, the Court found that, "most importantly," Alabama law imposed upon sheriffs "the duty . . . to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes in their counties and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county." Id. at 790, 117 S.Ct. 1734 (emphasis added.) The Court observed that Alabama sheriffs were thus "given complete authority to enforce the state criminal law in their counties." Id. The counties themselves, by way of contrast, did not have any law enforcement authority. Accordingly, the governing body of the counties, the county commission, could not instruct the sheriff with respect to law enforcement activities. The Court thus concluded that, although the evidence was conflicting, "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties." Id. at 793, 117 S.Ct. 1734.

Application of the McMillian analysis to the circumstances of this case compels the conclusion that District Attorney Gregor's prosecutorial decisions were made in his capacity as a representative of the Commonwealth of Pennsylvania, and not of the County of Monroe. As in the case of McMillian, there is some evidence that suggests that a District Attorney in Pennsylvania is a county officer. For example, the state constitution denominates a district attorney as a county officer. See Pa. Const., Article IX, section 4. ("County officers shall consist of . . . district attorneys . . . and such others as may from time to time be provided by law.") Moreover, expenses incurred by a district attorney in the investigation of crimes are paid by the county from its general funds. 16 P.S. § 1403. County commissioners, the governing body of Pennsylvania counties, have the authority to decide whether a district attorney should be full time. See 16 P.S. § 1401(g). The county salary board, furthermore, determines the salary of assistant district attorneys and county detectives. See 16 P.S. §§ 1420 and 1440.

Like Alabama, however, there is conflicting evidence as to the capacity in which a county district attorney acts when enforcing Pennsylvania penal law. For example, state law, and not the county commissioners, sets the salary for district attorneys. 16 P.S. § 1401(g). And it is state law that governs the filling of a vacancy in the D.A.'s Office. 16 P.S. § 1404. Perhaps most importantly, Pennsylvania law does not confer upon the county's governing body, the county commissioners, law enforcement authority. Nor does it impose upon the county commissioners the authority to direct the district attorney's prosecutorial decisions. On the contrary, state law makes clear that the district attorney is to "conduct in court all criminal and other prosecutions, in the name of the Commonwealth. . . ." 16 P.S. § 1402(a) (emphasis added.) Indeed, district attorneys are directed by statute to "perform all the duties which [had been] performed by [state] deputy attorneys general. . . ." Id.*fn12 The Pennsylvania Supreme Court has remarked that "[i]f this statute means anything at all, it means that district attorneys in this Commonwealth have the power — and the duty — to represent the Commonwealth's interests in the enforcement of its criminal laws." Commonwealth. ex. rel. Specter v. Bauer, 437 Pa. 37, 41, 261 A.2d 573, 575 (1970) (emphasis added.) The Pennsylvania Supreme Court has also remarked this district attorneys and Commonwealth attorneys are the only public officials "charged with the legal responsibility of conducting `in court, all criminal and other prosecutions in the name of the Commonwealth.'" Id. at 43, 261 A.2d at 576. Moreover, only the Attorney General, and not the county commissioners, may supersede a district attorney in connection with prosecutorial decisions. See 71 P.S. § 732-205(a)(4). It is the Attorney General of the Commonwealth of Pennsylvania, and not a county officer, who may refer to the district attorney alleged violations of the criminal laws of Pennsylvania for prosecution. See 71 P.S. § 732-205(b).

As in McMillian, there is some evidence in this case to support the proposition that a Pennsylvania district attorney is a county policy maker when engaged in his law enforcement capacity. Indeed, the constitutional designation of the Pennsylvania district attorney as a county officer is a factor not present in McMillian that supports Williams' position. But that factor does not tip the scales in Williams' favor. The historical foundation for the office of district attorney — serving as a replacement for state deputy attorneys' general, with the obligation to perform the duties that had been performed by those deputy attorney's general — coupled with the district attorneys' subordinate relationship to the state's chief law enforcement officer, the Attorney General, compel the conclusion that when engaged in his or her ...

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