Owens v. County of Del., No.Civ.A.95-4282, 1996 WL 476616, at
*11 (E.D.Pa. Aug. 15, 1996), aff'd 116 F.3d 469 (3d Cir. 1997), (citation
and internal quotations omitted). It includes "any act that indicates an
intention to take the person into custody and subjects him to the actual
control and will of the person making the arrest." Commonwealth v.
Lovette, 450 A.2d 975, 978 (Pa. 1982) (citations omitted). Absent a
"formal arrest," the question is whether there has been a "restraint on
freedom of movement of the degree associated with a formal arrest."
Bristow, 80 F. Supp.2d at 436.
In this case, Colbert was not formally arrested. On the day he spoke
with Officer Avram, Colbert was not handcuffed, fingerprinted, or taken
to the police station, and he did not receive a citation. Later, Colbert
received a summons in the mail, giving him a date to appear in court. No
bond was posted and no warrant was required to secure his appearance.
Colbert steadfastly relies on Gallo to support his assertion that he
was seized, so as to constitute an arrest, by Officer Avram. (Pl.'s Mem.
in Opp'n to Defs.' Mot. for Summ. J. at 60-61.) As discussed supra,
Gallo is inapposite. See Gallo, 161 F.3d at 222 (finding it a close
question, but concluding that requiring plaintiff to post $10,000.00
bond, attend all hearings, and contact pretrial services weekly
constituted Fourth Amendment seizure). The court concludes that the fact
that Plaintiff briefly spoke with Officer Avram and later received a date
to appear in court is insufficient to establish a "restraint on freedom
of movement of the degree associated with a formal arrest." Bristow,
80 F. Supp.2d at 436.
Even if Colbert had been arrested, his claim would nonetheless fail
because Officer Avram had probable cause to arrest him.*fn10 Probable
cause to arrest "exists when the facts and circumstances within the
arresting officer's knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being
committed." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d
Cir. 1995) (citing United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir.
1990) & Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979)). A court may
find that "probable cause exists as a matter of law if the evidence,
viewed most favorably to Plaintiff, reasonably would not support a
contrary factual finding." Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d
Cir. 1997); Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788-89 (3d
Cir. 2000); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 88 n. 5
(Pa.Super.Ct. 1995) (citation omitted).
As stated supra, the uncontradicted record shows that Officer Avram
responded to an emergency call from a Rite Aid employee reporting an
assault. (Avram Dep. at 53-55; Hanson Dep. at 19.) Witnesses corroborated
Cardy's statement that Colbert injured Cardy by throwing him to the
ground. (Avram Dep. at 80 & 84; Hack Dep. at 13 & 23; Hanson Dep. at 19;
Daniels Dep. at 112 & 159.) After taking statements from the witnesses,
Officer Avram questioned Colbert, who then went home. (Avram Dep. at 73;
Colbert Dep. at 21-22.) Officer Avram drafted a Police Criminal
Complaint, which included an Affidavit of Probable Cause. The court
concludes that probable cause to arrest
Colbert existed because the facts
and circumstances within Officer Avram's knowledge were sufficient to
warrant a reasonable person to believe that an offense had been
committed. Orsatti, 71 F.3d at 483; see Lynch, 2000 WL 1286396, at *4
(stating that report of security guard and store managers, alone,
constituted probable cause); Owens, 1996 WL 4766616, at *14 (citations
omitted) (stating that "[i]t is well established law that in determining
whether probable cause to arrest an individual exists, police are
entitled to rely on seemingly reasonable information from an identified
purported victim of a crime").*fn11
Thus, the court will grant summary judgment in Officer Avram's
favor as to Plaintiff's Fifth Legal Claim.*fn12
For the reasons set forth above, the court will: grant the Municipal
Defendants' motion for summary judgment; deny Plaintiff's motion to
compel discovery as moot; deny Plaintiff's Rule 56(f) motion; grant
Plaintiff's motion to file a table of citations; grant Plaintiff's motion
to file an amended certificate of service; and deny Plaintiff's motion to
compel payment as moot.
An appropriate Order follows.
AND NOW, TO WIT, this 24th day of April, 2001, upon consideration of
Defendants the City of Reading's, Joel D. Avram's, William M. Heim's, and
Paul J. Angstadt's (collectively, the "Municipal Defendants") Motion for
Summary Judgment (Document No. 47) and Plaintiff Homer Lee Colbert's
("Plaintiff") opposition thereto, IT IS ORDERED that the motion is
GRANTED. Judgment is entered in favor of the Municipal Defendants and
against Plaintiff on all counts. Plaintiff's opposition, styled as a
"Motion in Opposition to the Municipal Defendant's Motion for Summary
Judgment," (Document No. 50) is DENIED.
IT IS FURTHER ORDERED that:
(1) Plaintiff's Rule 37 Motion to Compel Discovery
from the Municipal Defendants (Document No. 40) is
DENIED AS MOOT;
(2) Plaintiff's Rule 56(f) Motion (Document No. 48) is
(3) Plaintiff's Motion to File of Record the Table of
Citations (Document No. 51) is GRANTED;
(4) Plaintiff's Motion to File Amended Certificate of
Service (Document No. 55) is GRANTED; and
(5) Plaintiff's Motion to Compel Defendant Rite Aid
and Atlantic Security to Pay for the Deposition of the
Plaintiff's Expert (Document No. 59) is DENIED AS