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BRISTOW v. CLEVENGER

January 19, 2000

JOANN BRISTOW, PLAINTIFF
V.
JACOB C. CLEVENGER, DONALD E. HOPPLE, JR., DEFENDANTS.



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

  MEMORANDUM

Before the court are separate motions for summary judgment submitted by Defendants Clevenger and Hopple. The parties have briefed the issues, and the motions are ripe for disposition.

I. Background

The instant case is a civil rights action in which Plaintiff alleges the following: violation of 42 U.S.C. § 1983 through deprivation of Plaintiff's rights guaranteed by the Fourth and Fourteenth Amendments based upon malicious prosecution and abuse of process (Count I); violation of federal wiretapping law (Count II), violation of state wiretapping law (Count III); and state tort claims for malicious prosecution, abuse of process, and false arrest (Count IV). The Defendants remaining in the case are: Jacob C. Clevenger, Plaintiff's former husband who is a police officer in the Spring Garden Township Police Department, and Donald E. Hopple, Jr., a detective in the Windsor Township Police Department. Except where noted, the following facts are undisputed by the parties:

Plaintiff and Clevenger signed a Marital/Separation Agreement (hereinafter "Agreement") on August 9, 1996 that, inter alia, discussed health insurance. Plaintiff and Clevenger had agreed in June 1996 that he would help her pay for her medical insurance. Plaintiff had no medical insurance through her employer at that time. As a part of the Agreement, Clevenger agreed to pay one half of the cost of Plaintiff's COBRA medical insurance through Spring Garden Township for one year from the date of the Agreement. Plaintiff read the Agreement prior to signing it, and was represented by counsel. Other than what is contained within the Agreement, there was never any other agreement between Plaintiff and Clevenger concerning health insurance issues.

As per the Agreement, Clevenger paid half of Plaintiff's COBRA Insurance premiums for a period of one year from the date of the Agreement. Plaintiff dropped her COBRA Insurance with Spring Garden Township on March 15, 1997. She took no steps to notify Clevenger that she had canceled the Insurance, nor did she take steps to reimburse him the prepayment for the premiums that she had received. She applied the money to insurance that she got at her new place of employment.

Clevenger testified that he later learned through the Township Secretary that Plaintiff had dropped her insurance. He claims that this led him to believe, pursuant to the Agreement, that she owed him a refund. He sent her a letter on or about May 27, 1997, requesting a refund of $426.50, representing the COBRA benefits premiums which were advanced to her. Clevenger approached Defendant Hopple about filing criminal charges against Plaintiff. Hopple has worked for the Windsor Police Department since April 1986. Defendants Hopple and Clevenger have known each other for several years in a professional capacity. Clevenger briefly told Hopple that there was an agreement between himself and Plaintiff, whereby he was supposed to pay her money towards the COBRA Insurance. Hopple testified that at that time, Clevenger told him that Bristow owed him a certain amount of money because she had canceled the insurance and utilized the remaining money that was to be used for the COBRA Insurance for something else. (Hopple Dep. at 29.) Hopple testified that, based on the description given to him by Clevenger, he ascertained that there was criminal conduct in the case. (Id. at 31.) On the two occasions when Clevenger and Hopple discussed the matter, they were both on duty working for their respective police departments; Clevenger was in uniform. During their second meeting on this matter, Clevenger gave Hopple a letter from Glenda Alwine at Spring Garden Township stating that Plaintiff no longer had insurance through Spring Garden's COBRA plan.

Hopple testified that he initially thought, and told Clevenger, that the matter may have been civil because it arose out of a marital agreement. (Id. at 42.) However, Clevenger testified that they discussed that, and Clevenger explained that he thought the situation was similar to a bad check complaint and could be pursued either criminally or civilly or both. (Clevenger Dep. at 73-74.) After the second meeting where Hopple got more of the specifics from Clevenger, Hopple spoke to then Chief of Police of Windsor Township, Earl Shenk, about the criminal charges. Hopple asked Chief Shenk whether he thought the charges were civil or criminal. Chief Shenk told Hopple to take this question to the York County District Attorney's Office for a decision.

Subsequently, Hopple spoke to Assistant District Attorney ("ADA") Adams by telephone and they discussed the pertinent elements of the proposed offense. Adams took all of the information from Hopple and was going to have a staff meeting and then get back to Hopple with an answer as to whether the charges were civil or criminal. Hopple testified that, during a second conversation, Adams told him that the elements of the crime had been met but that he felt that the matter was civil. (Id. at 46.) Afterward, Hopple spoke with Clevenger again and explained what Adams had said. Clevenger informed Hopple that he had already spoken to another ADA, Chuck Patterson, who agreed to do some research into the issue and then get in contact with Hopple.

Clevenger told ADA Patterson that he paid his wife money for insurance and she did not spend it on insurance. Clevenger and Patterson reviewed the criminal statute line by line and they determined that the elements of the crime had been met. Patterson told Clevenger to tell Hopple that it was okay to file charges against Bristow. Clevenger spoke to Hopple and passed on that information. Also, after the conversation between Patterson and Clevenger, Patterson spoke to Hopple and approved the prosecution of Plaintiff. Patterson testified that his idea of approval was that, based upon the facts related to him, there were sufficient facts in order to establish in his opinion a prima facie case. (Patterson Dep. at 60, 62.) However, Plaintiff contends that neither Clevenger nor Hopple ever told Patterson that the money at issue had been used by her to purchase alternate insurance.*fn2 Whereas Clevenger testified that, to this day, he still does not know what Bristow did with the money he gave her for the COBRA Insurance premiums in 1997. (Clevenger Dep. at 61-62, 66.)

Hopple testified that "Patterson directed [him] to file the charges of theft by failure to make required disposition of funds and indicated that the elements of the crime were met." (Hopple Dep. at 55.) However, Patterson testified that he did not "direct" such action, but that he only "approved" the filing of charges. (Patterson Dep. at 19.) Hopple testified that he went back to Chief Shenk and explained that Patterson directed him to file the criminal charge against Plaintiff. (Hopple Dep. at 55.) He further testified that Chief Shenk responded that if that was what the District Attorney's Office directed him to do, then he was to do so. (Id. at 56.)

Hopple spoke with Plaintiff over the phone twice during the course of his investigation, prior to filing the criminal complaint. Hopple told Plaintiff that he was contacted by Clevenger regarding a matter of her owing money to Clevenger. Hopple also told Plaintiff that he knew Clevenger as a police officer in the area but did not know him personally. The second time Hopple called Plaintiff, he asked her if she had paid the money to Clevenger. He also told her that the York County District Attorney's Office was going to follow through with the charges if she did not pay the money back. Plaintiff testified that, during one of the two phone conversations, she told Hopple that she had applied the money from the COBRA Insurance toward other insurance. (Bristow Dep. at 72-73.) She also told him that she was not going to pay the money back to Clevenger.

Hopple testified that he himself believed the "elements of the crime as [he] read in the Pennsylvania Crimes Code were definitely there." (Id. at 42.) Hopple prepared a criminal complaint charging Plaintiff with theft by failure to make required disposition of funds,*fn3 filed it with Magistrate Douglas F. Meisenhelter, and sent a summons to Plaintiff by mail. The criminal complaint was served on her by certified mail at her home in Shrewsberry, Pennsylvania. Plaintiff waived her preliminary hearing and was released on her own recognizance. Later, she appeared in court for a pretrial conference. At the pretrial conference, the judge kept the case on the trial schedule but he expressed his belief that the controversy was a civil, not a criminal matter. The prosecutors assigned to the case asked for more time to review the case. Directly after the pretrial conference, Plaintiff, traveling in a separate car from Hopple, followed him to the police station. She testified that during the drive, Defendant Clevenger followed in a car behind her and made gestures, including using his middle finger. (Bristow Dep. at 89.) At the police station, Hopple took Plaintiff's fingerprints and photographed her. She testified that she felt "extremely embarrassed and humiliated" during the experience. (Bristow Dep. at 93.) The District Attorney's Office dropped the charges against Bristow soon after the pretrial conference. On June 11, 1998 the Court of Common Pleas of York County expunged Plaintiff's arrest record upon the District Attorney's Office's application to nolle prosequi the criminal charges against Plaintiff.

After the record was expunged, Clevenger retained counsel and filed a civil petition for special relief seeking to recoup $426.00 that had been advanced to Plaintiff by him for COBRA benefits. The York County Court of Common Pleas issued an opinion dated June 22, 1998 by the Honorable Gregory M. Snyder, in which he determined that Plaintiff had violated the terms of the Agreement and ordered her to repay the money to Clevenger. (Bristow Dep., Ex. 4, p. 6.)

On December 10, 1998 Plaintiff brought the instant civil rights action against Defendants Clevenger, Hopple, and other Defendants no longer in the case. On November 5, 1999 Defendant Hopple filed a motion for summary judgment on the counts against him for malicious prosecution, abuse of process, and false arrest. Defendant Clevenger filed a motion for summary judgment on November 10, 1999 as to the counts against him for malicious prosecution, abuse of process, false arrest, and violation of federal and state wiretapping laws. This memorandum and accompanying order address both Defendants' motions.*fn4

II. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper 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 that the moving party is entitled to a judgment as a matter of law." A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis which would allow a reasonable fact-finder to return a verdict for the non-moving party. See id. at 249, 106 S.Ct. 2505. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).

Once the moving parties have shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in her complaint; instead, she must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted). Summary judgment should be granted 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 at trial. See id.

III. Discussion

The court will address Plaintiff's claims concerning federal and state wiretapping charges in Parts A and B, respectively. Subsequently, the court will separately address Plaintiff's federal claims for malicious prosecution and abuse of process, initiated pursuant to 42 U.S.C. § 1983, in Part C; and Plaintiff's state tort law claims for malicious prosecution, abuse of process, and false arrest, in Part D.

A. Count II: Violation of Federal Wiretapping Law*fn5

Defendant Clevenger asserts that Plaintiff's federal wiretapping claim is barred by the statute of limitations. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, at 18 U.S.C. § 2520, authorizes a civil cause of action by a person whose wire or oral communication is intercepted, disclosed, or used in violation of the act. Subsection 2520(e) provides that "[a] civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation." Plaintiff testified that the alleged interception of her telephone conversation occurred on or about May 13, 1996, and that she was made aware of the interception on May 15 or 16, 1996. (Bristow Dep. at 122-24.) Plaintiff did not file her complaint alleging violation of § 2520 until December 10, 1998, more than two years after her discovery of a potential cause of action. Therefore, Count II, alleging a violation of federal wiretapping law, should be dismissed as time-barred. Accordingly, summary judgment will be granted in favor of Defendant Clevenger as to Count II.

B. Count III: Violation of State Wiretapping Law*fn6


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