The opinion of the court was delivered by: LEGROME DAVIS, District Judge
Presently before the Court are Defendant Borough Norwood Police
Department's Motion for Sanctions Against Plaintiffs (Dkt. No. 39),
Plaintiffs' Motion for Summary Judgment (Dkt. No. 41), Defendant Norwood
Borough Police Department's Motions for Summary Judgment (Dkt. Nos.
42-44), and Defendants Delaware County and Delaware County Police
Department's Cross-Motion for Summary Judgment (Dkt. No. 46). For the
reasons that follow, Plaintiffs' Motion for Summary Judgment is DENIED,
Defendant Borough Norwood Police Department's Motion for Sanctions
Against Plaintiffs is DENIED*fn1 and Defendant Norwood Borough Police
Department's Motions for Summary Judgment are DENIED. The Cross-Motion
Judgment filed by Defendants Delaware County and Delaware County
Police Department is GRANTED.
Factual Background and Procedural History
On July 9, 2002, Plaintiffs John McBrearty ("John"), Carl McBrearty
("Carl") and Nina McBrearty ("Nina"; John, Carl and Nina are collectively
identified as "Plaintiffs")*fn2 filed the instant action against
Defendants Delaware County Sheriffs' Department, Norwood Borough Police
Department and Delaware County (collectively identified as "Defendants")
pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). Plaintiffs' Amended
Complaint was filed on December 17, 2002. (Dkt. No. 11).
The allegations contained in the Amended Complaint pertaining to the
Norwood Defendants arise from events surrounding a divorce action between
John and Belinda McBrearty ("Belinda"). On August 28, 2000, Judge
Fitzpatrick of the Delaware County Court of Common Pleas entered a Court
Order granting Belinda 55% of John's and Belinda's marital estate
consisting of 649 Seneca Avenue, Norwood, Pennsylvania (the "Seneca
Avenue residence") and 55% of his 401(k) plan. The Order further provided
that the Seneca Avenue residence was to be immediately listed for sale.
(See August 28, 2000 Order of Judge Fitzpatrick).
In response to Judge Fitzpatrick's Order, John filed two appeals: one
undated and the second on October 6, 2000. (See John McBrearty's Dep. at
25-26). Both appeals were denied. (Id.). Additionally, on July 2, 2001,
Judge Fitzpatrick entered an Order finding John in contempt of the August
28, 2000 Order. The July 2001 Order further decreed that "John McBrearty
hereby evicted from the premises known as 649 Seneca Avenue . . .[and]
is not to return to same for any reason. If necessary,
Defendant [John] is to be forcibly removed from said premises by the
Sheriff of Delaware County." (See July 2, 2001 Order of Judge
Fitzpatrick). The Order also mandated the immediate transfer of the
Seneca Avenue residence to Belinda. (Id.)
On July 5, 2001, Belinda's attorney, Michael Raffaele, sent a letter to
John advising of the eviction. (See July 5, 2001 letter to John
McBrearty, Defs. Norwood's Brief at Exhibit L). On July 10, 2001, John
filed an appeal of Judge Fitzpatrick's July 2, 2001 Order which was
denied. (See Notice of Appeal, Defs. Norwood's Brief at Exhibit M).
Ultimately, on July 19, 2001, title to the Seneca Avenue residence was
legally transferred from John to Belinda. (See July 19, 2001 Indenture,
Defs. Norwood's Brief at Exhibit N).
On March 7, 2002, Belinda's attorney, Kathleen Piperno, Esquire
("Piperno"), sent a letter to the Delaware County Sheriff's Office, which
enclosed Judge Fitzpatrick's July 2, 2001 Order and requested the
eviction of John from the Seneca Avenue residence. (See March 7, 2002
letter from Piperno to Sheriff of Delaware County, Defs. Norwood's Brief
at Exhibit P). Piperno sent a second letter on March 11, 2002, informing
the Sheriff that John may be found at the Seneca Avenue residence nightly
at approximately 6:00 p.m. (See March 11, 2002 letter from Piperno to
Sheriff of Delaware County, Defs. Norwood's Brief at Exhibit Q).
Subsequently, on March 13, 2002, Belinda filed a Petition for a
Protection from Abuse (the "Petition"). (See March 13, 2002 Petition for
Protection from Abuse Application filed by Belinda McBrearty, Defs.
Norwood's Brief at Exhibit R). The Petition listed two addresses for
Belinda: 1408 Blackrock Road, Swarthmore, Pennsylvania 19081 and 649
Seneca Avenue, Norwood, Pennsylvania 19086. (Id.). The verified Petition
stated that, on March 7, 2002, at
approximately 8:00 p.m., John repeatedly threatened to kill Belinda
and to blow up the house if she ever had him evicted. The Petition also
stated that Belinda had endured years of physical and mental abuse,
including John pointing a gun at her, and that she was fearful for her
In response to Belinda's Petition, Judge Ann Osborne of the Delaware
County Court of Common Pleas entered a Temporary Protection from Abuse
Order ("PFA Order") against John and Carl McBrearty on March 13, 2002.
(See Temporary Protection from Abuse Order, Defs. Norwood's Brief at
Exhibit S). The PFA Order mandated the eviction and exclusion of John and
Carl from the 1408 Blackrock Road and 649 Seneca Avenue residences. (Id.)
The PFA Order also instructed law enforcement officials to enforce
violations of the order. (Id.)
In the evening of March 13, 2002, police evicted John and Carl from the
Seneca Avenue residence in accordance with the Eviction and PFA Orders.
(See Affidavit of Norwood Borough Police Officer William Manning, II,
dated August 26, 2003 at ¶ 8, Defs. Norwood's Brief at Exhibit C). In
the spirit of the terms of the PFA Order, police confiscated six guns,
various pocket knives, and a half a box of ammunition from the Seneca
Avenue residence during the eviction. (See Weapon Receipt of Sheriff of
Delaware County, Defs. Norwood's Brief at Exhibit U).
After the eviction, on March 21, 2002, Belinda, John and Carl, and
counsel for each of the parties appeared at a proceeding before Judge
Barry Dozer. Following an in camera discussion with counsel for
John and Belinda, a stipulation for the eviction of John and Carl from
the Seneca Avenue residence was entered on the record. (See John
McBrearty Dep. at 99-105; Carl McBrearty Dep. at 12. 19, 36). Both John
and Carl explicitly assented to the terms of the stipulation in open
court. (See John McBrearty Dep. at 99-101; Carl McBrearty Dep. at 12, 19,
30). Finally, John and Carl were granted unfettered access to the
Seneca Avenue ...