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McBREARTY v. DELAWARE COUNTY SHERIFF'S DEPARTMENT

February 24, 2004.

JOHN McBREARTY; CARL McBREARTY; and NINA McBREARTY Plaintiffs,
v.
DELAWARE COUNTY SHERIFF'S DEPARTMENT; NORWOOD BOROUGH POLICE DEPARTMENT; and DELAWARE COUNTY Defendants



The opinion of the court was delivered by: LEGROME DAVIS, District Judge

MEMORANDUM AND ORDER

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 for Summary Page 2 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 Eviction

  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 is Page 3 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 Page 4 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 life. (Id.)

  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, Page 5 30). Finally, John and Carl were granted unfettered access to the Seneca Avenue ...


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