United States District Court, E.D. Pennsylvania
May 5, 2004.
VALERIE GODSHALK and KELVIN GODSHALK, Plaintiffs,
BOROUGH OF BANGOR, FRANK ZELENA and BARBARA ZAVACKY, Defendants
The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge
Memorandum and Order
This case concerns the effect of enforcing local building codes on
the privacy rights of local property owners. Plaintiffs Valerie and
Kelvin Godshalk, residential property owners in Bangor, Pennsylvania,
contend that the Borough of Bangor's attempts to enforce its building
maintenance code resulted in violations of their constitutional rights.
Plaintiffs name as defendants the Borough of Bangor; Frank Zelena,
Bangor's Zoning Enforcement Officer; and Barbara Zavacky, a member of
Bangor's Zoning Hearing Board.
The thrust of plaintiffs' complaint is that they were unfairly and
unconstitutionally targeted by Zelena upon his appointment as Zoning
Enforcement Officer and that, as a result, their property was searched
and they were criminally charged in violation of their constitutional
rights. More specifically, plaintiffs allege the following six grounds
for relief: in count I, plaintiffs contend that defendant Zelena's inspection of their property infringed upon their Fourth and Fourteenth
Amendment rights in violation of 28 U.S.C. § 1983; in count II,
plaintiffs bring a malicious prosecution claim against defendant Zelena;
in count III, plaintiffs allege abuse of process against defendant
Zelena; in count IV, plaintiffs bring a section 1983 claim against
defendant Zelena for malicious prosecution and abuse of process; in count
V, plaintiffs claim that the Borough of Bangor violated section 1983 when
it failed to train and supervise Zelena, thus resulting in the violation
of plaintiffs' Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment
rights; and in count VI, plaintiffs bring a defamation claim against
Presently before this court is defendants' motion for summary judgment.
For the reasons that follow, defendants' motion will be granted with
respect to claims I, III, IV, and V. Claims II and VI will be dismissed.
Husband and wife plaintiffs Kelvin and Valerie Godshalk own ten
residential properties, three of which are relevant to this litigation.
See K. Godshalk Dep. at 24-25. At the time of the events giving rise to
this action, plaintiffs owned and resided in a house located at 323 1/2
Broadway, Bangor, Northampton County, Pennsylvania. See Defs.' Statement
of Facts, ¶ 17 [hereinafter "Defs.' Facts"]; Pls.' Resp. to Defs.'
Facts, ¶ 17 [hereinafter "Pls.' Facts"]. Also in Bangor, plaintiffs own a
multi-unit residential property located at 31-33 North Third Street.
Defs.' Facts, ¶ 15; Pls.' Facts, ¶ 15. And finally, plaintiffs own a
three-unit residential property located at 439-441 Pennsylvania Avenue
("441 Pennsylvania Avenue") Bangor, Pennsylvania. Defs.' Facts, ¶¶ 7-8;
Pls.' Facts, ¶¶ 7-8.
When plaintiffs purchased 441 Pennsylvania Avenue in October, 2001,
tenant Kimberlee McCarty occupied one of the units. Defs.' Facts, ¶¶
7, 9; Pls.' Facts, ¶¶ 7, 9. Upon purchase, plaintiffs entered into a
verbal month-to-month lease with McCarty, the terms of which were similar
to those McCarty had maintained with the previous owners and pursuant to
which McCarty has remained in the unit until the present time. Defs.'
Facts, ¶¶ 10-11; Pls.' Facts, ¶¶ 10-11.
The Borough of Bangor's Property Maintenance Requirements
On February 13, 1995, the Borough of Bangor adopted and approved
Ordinance No. 797 ("Ordinance 797"), which established regulations
governing the "conditions and maintenance of all property, buildings and
structures" in order to "insure that structures are safe, sanitary and
fit for human habitation and use." Ord. No. 797 (attached to Defs.' Facts
as Exhibit G). To this end, Ordinance 797 adopted "The BOCA National
Property Maintenance Code"*fn2 as Bangor's maintenance standards, three
copies of which were then on file at the Office of the Borough
Secretary. Id. Under the terms of Ordinance 797, individuals in violation
of the Borough's property maintenance standards are subject to a fine, imprisonment, or both. Id. ¶ 106.2.
The Zoning/Codes Enforcement Officer for the Borough of Bangor
Defendant Zelena assumed the position of Zoning/Codes Enforcement
Officer ("Zoning Officer") for the Borough of Bangor sometime in August,
2002. Defs.' Facts, ¶ 4; Pls.' Facts, ¶ 4. Prior to Zelena's
appointment, Kurt Krouse served as the Borough's Zoning Officer from
January 1, 2000, through July of 2002. See Krouse Dep. (9/19/03) at 5
(attached to Pls.' Facts as Ex. 5). The parties dispute the precise scope
of a Zoning Officer's official responsibilities; I will go into some
detail in relating the duties performed by both Krause and Zelena,
therefore, in an effort to characterize as accurately as possible the
responsibilities delegated to a somewhat un-defined position.
According to Krouse, his duties as Zoning Officer included enforcing
borough ordinances and building codes; sending letters to property
owners, including violation notices and notifications regarding problems
with properties; conducting visual inspections of properties; speaking
with citizens regarding code violations like trash problems, abandoned
vehicles, and untamed weeds; and responding to citizen complaints about
trash odors, lawn maintenance, animal feces, and parking problems in the
neighborhood. Krouse Dep. at 7-9, 26, 50. Krouse testified at his
deposition that he responded to citizen complaints and perceived
violations in a number of ways, depending upon the nature of the
violation; in particular, he noted that no specific procedures were in
place pursuant to which he performed his enforcement duties. Id. at 8-9.
Rather, he would occasionally send a preliminary letter, other times make
a personal visit to the property, and still other times send the
violation notice right away:
[T]here's no written standard on contact letters. I
was never trained on that. There's no written procedure anywhere on first contact
letters. But when I did a violation letter, I never
did first contact letters. I never did a letter saying
I wanted to meet with them. If I couldn't contact a
person such as yourself, say if I wanted to contact
you, if I tried to call you, I couldn't get you, I
knocked on your door 20 times and I could not get
you, I would send a violation letter out and let the
dice roll where they may. If they respond to that
letter, fine. If not, we go on.
Id. at 38-39. Krouse also stated that in his capacity as Zoning Officer,
he frequently conducted personal inspections unannounced, during which he
would knock, introduce himself, and inspect either the exterior or
interior of the property. Id. at 21-22.
The portrait painted by former Zoning Officer Krouse of his position in
the late summer of 2002, when he resigned and Zelena assumed his duties,
is not atypical of imprecisely-defined local government positions in
towns and boroughs across the country. Krouse responded as appropriate to
complaints as they arouse, adhering less to rigid job description
guidelines than to a pragmatic, flexible, need-based mentality.*fn3
At the Bangor Borough Council Meeting on August 12, 2002, defendant
Zelena was hired as Zoning Officer. See Mtg. Minutes Aug. 12, 2002, p.5
(attached to Defs.' Facts as Exhibit C) [hereinafter "Mtg. Minutes"].*fn4
Suggestions were made, at this meeting, that Zelena begin work either the
next day or on August 19, 2002. Id. According to a letter sent to the
District Magistrate from Borough Secretary Lynn Martocci, regarding Zelena's swearing in, his official date of hire was
August 22, 2002. See Martocci Ltr (attached to Pls.' Facts as Exhibit
2). Zelena was sworn in on August 26, 2002. See Oath of Office (attached
to Defs.' Facts as Exhibit DD).*fn5
In his capacity as Zoning Officer, Zelena reported to the Borough
Council, the body which appointed him, and-on a day-to-day basis-to
George Gemmel, the Borough Manager. See Def.'s Obj. & Responses to PL's
First Set of Interrogatories at 4 (attached to Pls.' Facts as Exhibit
4); Zelena Dep. (12/19/02) at 8-9. According to Gemmel, the Zoning
Officer "runs his own show," and does not generally discuss proposed
enforcement actions with Gemmel. Gemmel Dep. 9/5/03 (attached to Pls.'
Facts as Ex. 1).
During the "Public Comment/Concerns" portion of the August 12th
meeting, a complaint about plaintiffs' property at 441 Pennsylvania
Avenue was registered by Michael Stinson. Mtg. Minutes at 2. According to
the minutes of the meeting, the property was described as "neglected" and
"not being maintained properly." The Council President indicated that
this matter would be referred to the "Property Committee" for
Zelena's Correspondence with Plaintiffs
In late August, defendant Zelena determined to investigate the
complaints regarding 441 Pennsylvania Avenue himself. While Zelena
maintains that this investigation was a regular part of his official
responsibilities, plaintiffs dispute the motivation behind his investigation. Plaintiffs allege that Zelena
was "directed to target the Godshalks by members of the Borough" and that
he "had a history of complaining about the Godshalks." Pls,' Facts, ¶
29. Regardless of Zelena's precise motivation, the record reveals that
sometime in late August, Zelena drove past 441 Pennsylvania Avenue to
observe the exterior of the premises. Zelena Dep. (8/19/03) at 53
(attached to Pls.' Facts as Exhibit 11). On August 21, 2002, prior to
Zelena's official date of hire or swearing in, plaintiffs received a
letter from defendant Zelena relating to 441 Pennsylvania Avenue.
See Ltr. 8/21/02, attached to Pls.' Ex. 13 [hereinafter Zelena's
First Ltr]. The letter was undated and on plain paper, as opposed to
official stationary or letterhead, and its body read as follows:
Please be advised that the Borough of Bangor Codes
Enforcement Officer has Determined that there are are
[sic] violations of Borough Codes located at 441
Pennsylvania Ave. of which you are listed owner.
Please contact this office to make arrangements for
Further inspections of your property both inside and
Failure to hear from you will result in the
Borough taking the necessary legal Action to obtain
compliance with its ordinances. Proceed at your own
Id. The court notes two significant facts with respect to this initial
letter: first, defendant Zelena assumed the official title and authority
of his position before he was either hired or sworn in; and second, his
letter failed to contain any description of the violations to which he
refers. Furthermore, as defendant Zelena himself admitted, the letter did
not comply with the BOCA notice requirements.*fn6
Zelena Dep. 12/19/02
at 60. On August 27, 2002,*fn7
plaintiff's attorney James Preston called
Zelena to discuss this letter. See Preston Affidavit, ¶ 5 (attached to
Pls.' Facts as Ex. 12). According to Preston, Zelena "assured [him] that
he was going to `get' the Godshalks and that he would inspect their
property with or without [his] clients' permission, with or without a
warrant, with or without a proper enforcement notice, and with or without
interference from any attorneys." Id. ¶ 8. According to Zelena, he had a
conversation with Preston around this time to discuss the letter, and he
recalls informing Preston that he intended to seek a warrant. Zelena
Dep. 8/19/03 at 112.
One day later, Zelena composed a second letter to plaintiffs, also on
plain white paper, stating that "[s]ince I have not heard from you please
be advised that you are in violation of the following sections of the
code." Ltr. 8/28/02, attached to Pls.' Ex. 13 [hereinafter Zelena's
Second Ltr]. Zelena's letter then identified six sections of Bangor's
Property Maintenance Code allegedly violated by the 441 Pennsylvania
Avenue building. Because the validity of Zelena's accusations is at issue
in this litigation, it is necessary to discuss briefly each of the six
Under section 303.1, Zelena notified plaintiffs that they were in
violation of sanitation standards, noting "[y]ard littered with
automobile tires and automobile parts." Id. Section 303.1 of the Property
Maintenance Code provides that "All exterior property and. premises shall
be maintained in a clean, safe and sanitary condition. The occupant shall
keep that part of the exterior property which such occupant occupies or
controls in a clean and sanitary condition." BOCA 5th ed. § 303.1 (attached to Defs.'
Facts as Exhibit T) (italicization in original). At his deposition,
defendant Zelena admitted that he did not actually see the tires, that
the BOCA did not specifically prohibit storing tires in one's backyard,
that the tires were eventually removed, and that the letter did not
identify what actions needed to be taken to bring 441 Pennsylvania Avenue
into compliance with section 303.1. Zelena Dep. 12/19/02 at 68-72.
Under section 303.7, Zelena notified plaintiffs that they were in
violation of "accessory structure" standards, noting "[c]himney in
disrepair." Zelena's Second Ltr. Section 303.7 of the Property
Maintenance Code provides that "All accessory structures, including
detached garages, fences and walls, shall be maintained structurally
sound and in good repair." BOCA 5th ed. § 303.7. At his deposition,
defendant Zelena stated that accessory structures are detached, that a
chimney is not detached from a building, that a chimney is not part of
the open spaces on the premises, and that his letter did not identify the
repairs necessary to fix the alleged violations of section 303.7. Zelena
Dep. 12/19/02 at 73-74.
Under section 304.14.1, Zelena notified plaintiffs that 441
Pennsylvania Avenue was in violation of "glazing" structures, noting
"[w]indows missing covered with plastic." Zelena's Second Ltr. Section
304.14.1 of the Property Maintenance Code provides that "All glazing
materials shall be maintained free from cracks and holes." BOCA 5th ed.
§ 304.14.1. At his deposition, defendant Zelena testified that his letter
neither identified specific windows in violation of § 304.14.1 nor
specified the repairs necessary to fix the alleged violations. Zelena
Dep. 12/19/02 at 79. Zelena also stated that the allegedly broken window
was eventually repaired. Id. Under section 306.1, Zelena notified plaintiffs that their property at
441 Pennsylvania Avenue was in violation of rubbish regulations, noting
"[r]ubbish lying throughout rear yard." Zelena's Second Ltr. Section
306.1 of the Property Maintenance Code provides that "All exterior
property and premises, and the interior of every structure shall be free
from any accumulation of rubbish or garbage." BOCA 5th ed. § 306.1. At
his deposition, Zelena testified that his letter did not identify what
items he considered to be rubbish, what repairs were necessary to comply
with § 306.1, or what should be done with any items considered to be
rubbish. Zelena Dep. 12/19/02 at 79-82.
Pursuant to section 404.4 of the Property Maintenance Code, defendant
Zelena notified plaintiffs that 441 Pennsylvania Avenue was in violation
of ventilation standards, noting "[n]o ventilation of interior irritating
fumes or odors." Zelena's Second Ltr. Section 404.4 of the Property
Maintenance Code provides as follows:
Where injurious, toxic, irritating or noxious
fumes, gases, dusts or mists are generated, a
local exhaust ventilation system shall be provided
to remove the contaminating agent at the source.
Air shall be exhausted to the exterior and not be
recirculated to any space.
BOCA 5th ed. § 404.4. At his deposition, Zelena agreed that his letter
did not state why ventilation was required and did not identify where the
allegedly irritating fumes were created; he also stated that at the time
he wrote this second letter he was not suggesting that manufacturing was
taking place at 441 Pennsylvania Avenue, and that he did not inspect the
apartments at 441 Pennsylvania Avenue for air conditioners despite the
fact that air conditioners could successfully ventilate a building.
Zelena Dep. 12/19/02 at 85-87.
Finally, defendant Zelena-in his second letter to plaintiffs-notified
them that 441 Pennsylvania Avenue was in violation of section 702.9 of the
Property Maintenance Code, noting "[f]ront porch in disrepair and
dangerous." Zelena's Second Ltr. Section 702.9 of the Code's chapter
relating to "fire safety" provides in part as follows:
Every exterior and interior flight of stairs having
more than four risers, and every open portion of a
stair, landing, balcony, porch, deck, ramp or other
walking surface which is more than 30 inches (762 mm)
above the floor or grade below shall have guards.
Defendant Zelena has admitted that section 702.9 says nothing about
"porch disrepair" or "dangerous porches." While Zelena was not willing to
concede that section 702.9 was the incorrect section of the code, he
admitted that his letter did not specify how the porch was in disrepair
nor what repairs were necessary to bring the porch into compliance with
the BOCA standards. Zelena Dep. 12/19/02 at 89-90.
Zelena served Valerie Godshalk with this second letter by certified
mail, reasoning that because the property was in dual ownership it was
unnecessary to serve Kelvin Godshalk as well. Id. at 91. Although dated
August 28, 2002, the postal records indicate that Zelena did not mail the
second letter until September 3, 2002, six days later. Id. at 91-92.
Finally, plaintiffs received a third letter from Zelena, via certified
mail, dated September 5, 2002. Ltr. 9/5/02, attached to Pls.' Ex. 13
[hereinafter Zelena's Third Ltr]. The letter was a warning to plaintiffs
that 441 Pennsylvania Avenue was in violation of "Ordinance #714 as
amended, relating to Animal Defecation." Id.
Upon receipt of these three letters, plaintiffs' attorney James Preston
contacted David Ceraul, Borough Solicitor for the Borough of Bangor, on
September 9, 2002. See Pls.' Facts, Ex. 13. He advised Ceraul that,
pursuant to their telephone conversation, he would "advise [plaintiffs] to contact the Borough's Zoning Office and
arrange for an inspection of the exterior of 441 Pennsylvania Avenue," in
addition to advising plaintiffs "to permit inspection of Apartment #1 439
Pennsylvania Avenue (Kim McCarty's residence) for odors only." Id.
(emphasis in original). Ceraul forwarded this letter to Zelena the next
day, with a cover letter stating:
I suggest that you proceed in accordance with Mr.
Preston's letter, by inspecting the exterior, as
well as the apartment, for odors only. Thereafter,
if additional inspections appear warranted, we can
then discuss the additional inspections or, in the
alternative, proceed by way of a search warrant.
Ltr. 9/10/02, attached to Pls.' Facts as Ex. 18.
Zelena's Inspection of 441 Pennsylvania Avenue
At no time after Zelena's first letter to plaintiffs, dated August 21,
2002, did he speak to either Kelvin or Valerie Godshalk about inspecting
441 Pennsylvania Avenue. Zelena Dep. 12/19/02 at 96-97. Neither plaintiff
authorized him to inspect 441 Pennsylvania Avenue at any time prior to
September 12, 2002. Id. Zelena's "interpretation of [Preston's] letter,"
however-the relevant text of which is excerpted above-was that Preston
had authorized Zelena to "inspect the interior of Apartment 1 on
September 12, 2002." Id. at 97. Despite the fact that the letter-dated
September 9-stated that plaintiffs would be advised to contact Zelena,
three days later-at which point plaintiffs had not yet contacted the
zoning office to arrange for an inspection-Zelena believed that
"permission had already been granted" to perform an inspection. Id. at
On September 5, 2002, Zelena had observed the exterior of 441
Pennsylvania Avenue from the street, taking pictures of the structure and
adjoining yard. Defs.' Facts ¶ 43. On September 12, 2002, Zelena went to 441 Pennsylvania Avenue,
accompanied by Bangor Police Chief Glenn Kerrigan. Def.'s Obj. &
Responses to Pl.'s First Set of Interrogatories at 7 (attached to Pls.'
Facts as Exhibit 4).*fn8 Defendant Zelena attempted to confirm this
inspection with plaintiffs beforehand, but the number he dialed was busy
and he did not reach either plaintiff before his arrival at 441
Pennsylvania Avenue. Id. at 6-7. According to Zelena, he needed to
inspect the apartment without permission because "too much time had
elapsed" since his notice letters sent August 21, September 3, and
September 5. Zelena Dep. 12/19/02 at 104.
Upon arrival at 441 Pennsylvania Avenue, Kerrigan and Zelena presented
themselves at the door of Kim McCarty's apartment. According to the
deposition testimony of McCarty, Kerrigan, and Zelena, which is largely
consistent, the brief inspection took place as follows. See generally
Zelena Dep. 12/19/02; Kerrigan Dep. 9/5/03 (attached to Defs.' Facts as
Ex. K); McCarty Dep. 9/10/03. McCarty answered the door to find Zelena
and Kerrigan, who stated that they were there for an inspection; Kerrigan
recalls being told by Zelena that Zelena "had talked with the property
owners prior to us being there," and McCarty recalls that-at the time of
the inspection-she knew only that "eventually he was going to be there
some time during that week" to perform the inspection. Kerrigan Dep.
9/5/03 at 6; McCarty Dep. at 65-66. After McCarty put her large dogs
away, Kerrigan and Zelena entered the apartment and Zelena peered into
the living room, dining room, and kitchen of the apartment. He had no equipment with him and took no air samples, and the entire inspection
lasted just a few minutes. Kerrigan Dep. 9/5/03 at 10-11; McCarty Dep.
9/10/03 at 72. According to Kerrigan's official police report, "animal
odors were very strong both inside and outside the residence." Bangor
Borough Police Dep't Incident Investigation Report at 2 (attached to
Defs.' Facts as Ex.Q).
After the Inspection
On the afternoon of September 12, 2002, plaintiffs' attorney contacted
Borough Solicitor Ceraul to register a complaint regarding Zelena's
inspection of 441 Pennsylvania Avenue. Ceraul returned his call, leaving
a voicemail-the transcription of which reads, in part, as follows:
I did speak to the zoning officer yesterday and told
him in accordance with our understanding in your
letter that uh either your client would be contacting
him or he could contact them to make an arrangement to
go up there and just do the inspection that you agreed
Memo from Tracy Kneller to File, 9/12/2002 (marked as Ex. 1 to Ceraul
Dep. 9/10/03). The next day Ceraul sent the following fax to Zelena
regarding Zelena's inspection of 441 Pennsylvania Avenue:
Apparently, despite our discussions, and despite the
contents of Mr. Preston's correspondence to me, you
appeared at the property with the Bangor Police
Department and accessed the apartment at the
premises, without authorization. I specifically
advised you to comply with Mr. Preston's letter in
your initial contact relative to the property, and I
specifically advised you that we would decide after
the initial inspection, what course of action needed
to be taken.
Ltr. 9/13/02 (attached to Pls.' Facts as Ex. 19) (portions deleted
at privileged). The Criminal Complaints
After his investigation of 441 Pennsylvania Avenue, defendant Zelena
attempted to cite plaintiffs for violations of the Borough's Property
Maintenance Code by issuing non-traffic citations. Zelena Dep. 8/19/03 at
67 (attached to Pls.' Facts as Ex. 11); see also Def.'s Obj. & Responses
to Pls.' First Set of Interrogatories at 7. At District Justice Strohe's
office, however, Zelena recalls that he was told by "one of the girls at
the counter" that, instead, he needed to file a "private criminal
complaint." Zelena Dep. 8/19/03 at 67.
On September 24, 2002, Zelena filed private criminal complaints against
each plaintiff, alleging violations of "Ordinance 797/Property
Maintenance Code." See Defs.' Facts at Ex. R (Criminal Complaint, Valerie
Godshalk); id. at Ex. S (Criminal Complaint, Kelvin Godshalk). Listing
the same six sections cited in his August 28th letter to plaintiffs,
defendant Zelena-relying upon the 1996 edition of the BOCA National
Property Maintenance Code-alleged that each plaintiff had "failed to
comply and make corrections; prevented Codes Officer from entering
property to verify compliance." Id. at Ex. R; see also id. at Ex. S
(substantively similar allegation). Plaintiffs specifically deny any
inference defendant Zelena seeks to draw, from these criminal
complaints, that the Borough's Property Maintenance Code in September,
2002, was the 1996 5th edition of the BOCA National Property Maintenance
Code. Pls.' Facts ¶ 63.
Plaintiffs each pleaded not guilty to the charges, and trial was
scheduled by the district justice for October 22, 2002. Pls.' Facts ¶
66; Notices of Trial (attached to Defs.' Facts as Exs. V, W). By October
22, 2002, all of the violations noted in defendant Zelena's criminal
complaints had been corrected. Zelena Dep. 12/19/02 at 119. Nevertheless, District Justice Strohe held a hearing the morning of
October 22, 2002, the transcript of which reveals that defendant Zelena
called himself as a witness, provided brief testimony regarding his
investigation of 441 Pennsylvania Avenue, and that-in the middle of being
cross-examined by John Harrison, attorney for the plaintiffs-Zelena
withdrew the charges against both plaintiffs. See generally Tr. 10/22/02
(attached to Pls.' Facts as Ex. 16).
According to defendant Zelena, despite attending a handful of hearings
over the years he had never before withdrawn charges in the middle of a
hearing. Zelena Dep. 12/19/02 at 115. Zelena stated, at his deposition,
that he did not have an improper purpose either in filing the charges,
presenting evidence, or testifying at the hearing. Id. at 117. As noted by
Justice Strohe, however, Zelena withdrew the criminal charges because
Borough Solicitor Ceraul advised him to do so. Tr. 10/22/02 at 28; see
also Notices of Withdrawal of Charges (attached to Defs.' Facts as Exs.
Defendant Zavacky's Involvement
Defendant Barbara Zavacky, a member of Bangor's Zoning Hearing Board,
does not appear to have been involved in the criminal prosecution of
plaintiffs Valerie and Kelvin Godshalk. Plaintiffs' claim against her,
for defamation, instead arises out of derogatory comments allegedly made
by Zavacky at a public meeting, during a public argument with plaintiffs,
and to a Bangor resident. Pls.' Additional Facts ¶ 3.
Wanda Eberts is a resident of Bangor and a tenant in one of plaintiffs'
residential properties. Eberts Dep. 8/19/03 at 5 (attached to Pls.' Facts
as Ex. 8). Zavacky, who resides at 25 North Third Street in Bangor, is a
neighbor of Eberts. Defs.' Facts ¶ 16. Katherine Vennel, another
Bangor resident, is friendly with both Zavacky and Eberts. Vennel Dep. 8/19/03 at 6.
Sometime in July, 2002, Vennel and Zavacky had a discussion during
which-according to Vennel-Zavacky referred to one or both Godshalks as
"slumlords." Vennel Dep. at 7-10. Defendant Zavacky specifically denies
that she stated to Vennel that "Valerie Godshalk was a slum landlord."
Def. Zavacky's Objections & Responses to PL's Request for Admissions
at 2 (attached to Pls.' Facts as Ex. 24). Vennel repeated this comment to
Eberts, plaintiffs' new tenant, saying "Wanda, I'm just letting you know
because I feel you have to know, but Barbara calls them slumblords."
Eberts Dep. 8/19/03 at 6; see also Vennel Dep. 8/19/03 at 8.
According to Zavacky, at some unspecified time she had a personal
confrontation with the plaintiffs outside their property on Third
Street. See generally Zavacky Dep. 8/19/03 at 46 (attached to Defs.'
Facts as Ex. D); V. Godshalk Dep. 8/22/02 at 218-220 (attached to Pls.'
Facts as Ex. 17).*fn9 Zavacky also made a comment pertaining to the
Godshalks at a meeting on December 27, 2000, stating "and I would just
like this to be on the record and would ask the Board to require Valerie
to be better than a slum landlord." Def. Zavacky's Objections &
Responses to PL's Request for Admissions at 2 (attached to Pls.' Facts as
Ex. 24). The Godshalks contend that their reputation as landlords was
harmed by defendant Zavacky's references to "slum landlords." Pls.'
Additional Facts 8. II. DISCUSSION
(A) Count I: Section 1983 versus Defendant Zelena
In count I, plaintiffs allege that Zelena violated their Constitutional
right to privacy when he inspected their property on September 12, 2002.
Specifically, plaintiffs complain that their Fourth and Fourteenth
Amendment rights were infringed upon by Zelena, in violation of
28 U.S.C. § 1983, when he performed a warrantless search of McCarty's
apartment at 441 Pennsylvania Avenue.
Defendant argues that he is entitled to summary judgment because
plaintiffs had no reasonable expectation of privacy in 441 Pennsylvania
Avenue. A landlord has no reasonable expectation of privacy in premises
occupied by a tenant, according to defendant; therefore, no Fourth
Amendment violation occurred when Zelena presented himself at the
property, was admitted by plaintiffs' tenant, and inspected the
apartment. In the alternative, Zelena argues that he is entitled to
summary judgment on this claim based on the doctrines of absolute
immunity, qualified immunity, and the Pennsylvania Political Subdivision
Tort Claims Act.*fn10 Plaintiff responds with the suggestion that owners of a leasehold
property deserve protection from warrantless searches. More specifically,
plaintiffs argue that because defendant Zelena's search of 441
Pennsylvania Avenue was not designed to implicate McCarty's privacy
rights, but-rather-to implicate plaintiffs' privacy rights, in that the
search was used to formulate criminal complaints against them, that the
court should extend Fourth Amendment protection to landlords as well.
To assert a claim for violation of 28 U.S.C. § 1983, plaintiffs must
establish that defendant, while acting under color of state law, deprived
them of rights, privileges, or immunities secured by the Constitution or
laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981)
overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986);
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). This court's initial
inquiry, therefore, is whether plaintiffs have "alleged the deprivation
of a right that either federal law or the Constitution protects."
Gruenke, 225 F.3d at 298 (citing Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)). To assert a violation of the Fourth Amendment, as plaintiffs
attempt to do, one must first demonstrate a "legitimate expectation of
privacy" in the area searched. See Rakas v. Illinois, 439 U.S. 128, 143
(1978) (the "capacity to claim the protection of the Fourth Amendment
depends . . . upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place")
(citing Katz v. United States, 389 U.S. 347, 353 (1967)).
Plaintiffs' first cause of action fails because they have no standing
to challenge the constitutionality of defendant Zelena's search of
McCarty's apartment at 441 Pennsylvania Avenue. Privacy rights are
personal, and cannot be asserted vicariously. See Rakas, 439 U.S. at 425
(citing cases). It is undisputed that Kimberlee McCarty-and not plaintiffs-resided in the apartment at 441 Pennsylvania Avenue at the
time of the September 12th search of that apartment. See Defs.' Facts, ¶¶
7-11; Pls.' Facts, ¶¶ 7-11. It is also undisputed the plaintiffs have
never resided at 441 Pennsylvania Avenue. See Defs.' Facts, ¶ 18; Pls.'
Facts, ¶ 18.
While plaintiffs place heavy emphasis upon their ownership of the
property, ownership alone is insufficient to confer standing to contest a
search. While property ownership can be a relevant factor, "property
rights are neither the beginning nor the end" of this court's Fourth
Amendment inquiry. United States v. Salvucci, 448 U.S. 83, 91 (1980)
(holding that a defendant's possession or ownership of the seized good
did not automatically establish standing to assert violation of his
Fourth Amendment rights). Instead, plaintiffs must show that they
manifested a "subjective expectation of privacy in the premises
searched," and that this expectation was reasonable according to societal
norms. California v. Ciraolo, 476 U.S. 207, 211 (1986). Plaintiffs have
asserted nothing more than bare legal ownership of 411 Pennsylvania
Avenue. They have pointed to no evidence that they took normal
precautions to maintain privacy in McCarty's apartment, nor given any
indication that they used her apartment in such a way as to raise a
legitimate expectation of privacy. They have never resided in this
apartment, nor were they physically present at the time of the search.
Accordingly, I find that plaintiffs lack standing to challenge defendant
Zelena's inspection of the McCarty apartment at 441 Pennsylvania Avenue.
See, e.g., Rozman v. City of Columbia Heights, 268 F.3d 588, 591 (8th
Cir. 2001) (holding that landlord lacked standing to assert Fourth
Amendment claim on behalf of tenant where city had entered tenant's
apartment without permission); United States v. Rios, 611 F.2d 1335, 1345
(10th Cir. 1979) (finding that mobile home owner had no expectation of privacy where, despite his ownership of the
property, he did not live in it, take normal precautions to maintain
privacy in the home, or use the home in such a way as to justify an
expectation of privacy); Looney v. City of Wilmington, 723 F. Supp. 1025,
1031 (D. Del. 1989) (finding that apartment owner could not challenge
police officer's knock-and-announce procedure because he, despite
ownership of the building, had not established expectation of privacy
with respect to the individual apartments); State v. Smith, 656 S.W.2d 882,
887 (Tenn.Crim.App. 1983) ("The general rule is that a tenant, not the
landlord, has the expectation of privacy in leased premises, unless the
lessor has specifically reserved any rights of possession for himself").
(B) Count IV: Section 1983 versus Defendant Zelena
In count IV, plaintiffs allege that Zelena violated their rights under
the Fourth and Fourteenth Amendments by committing the torts of malicious
prosecution and abuse of process. Specifically, plaintiffs complain that
their Fourth and Fourteenth Amendment rights were infringed upon by
Zelena, in violation of 28 U.S.C. § 1983, when he instituted criminal
proceedings against them with malice and ill will and employed legal
process for an improper purpose.
Defendant Zelena argues that he is entitled to summary judgment on this
count because violations of state tort law-even if established-do not
rise to the level of a Constitutional violation and therefore cannot give
rise to a section 1983 action. Plaintiffs, in response, contend that an
abuse of process is "by definition" a denial of procedural due process
and, therefore, a violation of the Fourteenth Amendment. Plaintiffs also
argue that Zelena's initiation of criminal prosecution without probable cause amounts to a violation of the Fourth Amendment.*fn11
To assert a claim for violation of 28 U.S.C. § 1983, plaintiffs must
establish that defendant, while acting under color of state law, deprived
them of rights, privileges, or immunities secured by the Constitution or
laws of the United States. Parratt, 451 U.S. at 535; Gruenke v. Seip, 225
F.3d at 298. Plaintiffs have alleged that their Fourth Amendment right to
be free from unreasonable seizures was implicated by Zelena's
prosecution, which is a "qualifying" Constitutional right.*fn12 See
Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir. 1998); Gallo v. City of
Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). This court's initial
inquiry, therefore, is whether plaintiffs' Fourth Amendment rights have been violated.
Plaintiffs have alleged that defendant Zelena instituted proceedings
against them without probable cause and with malice. Under the Third
Circuit's reading of Albright, however, "prosecution without probable
cause is not, in and of itself, a constitutional tort." Gallo, 161 F.3d
at 222. Rather, "the constitutional violation is the deprivation of
liberty accompanying the prosecution. Thus . . . a plaintiff asserting a
malicious prosecution claim must show `some deprivation of liberty
consistent with the concept of seizure.'" Id. (quoting Singer v. Fulton
County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). Whether or not Zelena's
actions constituted a "seizure" is evaluated under the Fourth Amendment's
"objective reasonableness" standard. Graham v. Connor. 490 U.S. 386,
A "seizure" occurs where there is a "show of authority that restrains
the liberty of a citizen" or a "government termination of freedom of
movement intentionally applied." See Gallo, 161 F.3d at 223 (citing
California v. Hodari D., 499 U.S. 621, 625-27 (1991)) and (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 844 (1998); see also Graham, 490
U.S. at 395 n.10 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968))
("[a] `seizure' triggering the Fourth Amendment's protections occurs only
when government actors have, `by means of physical force or show of
authority, . . . in some way restrained the liberty of a citizen.'").
In Gallo, the Third Circuit-noting that it was a "close call" found
that the conditions of plaintiff's pretrial release effected a seizure
despite the fact that plaintiff was never arrested, detained, or
handcuffed. Gallo, 161 F.3d at 222. Plaintiff did, however, have to "post
a $10,000 bond," "attend all court hearings," communicate with pretrial services "on a weekly basis," and "was prohibited from traveling
outside New Jersey and Pennsylvania." Id. Likening these conditions to
the "seizure" which takes place upon a Terry stop, the Third Circuit held
that plaintiff's "physical motion was subjected to authority that had the
effect of making him halt" and found a seizure to have taken place. Id.
In this case, plaintiffs do not allege that they were formally arrested
or detained. The entirety of their "seizure" analysis, in fact, reads as
In the present case, the Godshalks were required
to enter a plea and were required to attend the
criminal trial under threat of the issuance of a
warrant. These requirements interfered with their
liberty interests and constituted a seizure.
Pls.' Brief at 10. If Gallo where plaintiff's freedom of movement was
restricted-was a "close call," plaintiffs in this case clearly did not
undergo a seizure. No restrictions were imposed upon plaintiffs' liberty
other than the legal obligation to appear in court at a future date. As
another court in this district has found, "the fact that [plaintiffs
were] given a date to appear in court is insufficient to establish a
seizure." Colbert v. Angstadt, 169 F. Supp.2d 352, 356 (E.D. Pa. 2001)
(quoting Britton v. Maloney, 196 F.3d 24
, 30 (1st Cir. 1999)); see also
Bristow v. Clevenger, 80 F. Supp.2d 421, 430 (M.D. Pa. 2000) (where
plaintiff had been fingerprinted, photographed, and had attended a
pretrial conference and a judicial proceeding, the court found that no
seizure had occurred, noting that a Fourth amendment violation does not
occur "every time a criminal complaint [is] filed without probable cause
and any judicial proceeding ensue[s]").
Because no significant restrictions were placed on plaintiffs' liberty,
their movement was not confined to any geographic area, they were not
required to post bail, and they appeared in court only twice-each time
briefly-there is no genuine issue of material fact that plaintiffs were not subject to a seizure. As a
matter of law, therefore, they cannot maintain a claim for malicious
prosecution pursuant to § 1983. Accordingly, summary judgment will be
granted for defendant Zelena with respect to count IV's malicious
Abuse of Process
Plaintiffs next rely upon § 1983 for their claim that defendant
Zelena infringed upon their Fourteenth amendment right to procedural due
process by committing the tort of abuse of process.
"A section 1983 claim for malicious abuse of process lies where
`prosecution is initiated legitimately and thereafter is used for a
purpose other than that intended by the law.'" Rose v. Bartle, 871 F.2d 331,
350 n.17 (3d Cir. 1989) (quoting Jennings v. Shuman, 567 F.2d 1213, 1217
(3d Cir. 1977)). The Pennsylvania Supreme Court has described abuse of
process as follows:
The gist of an action for abuse of process is the
improper use of process after it has been issued,
that is, a perversion of it. An abuse is where the
party employs it for some unlawful object, not the
purpose which it is intended by the law to effect;
in other words, a perversion of it . . . abuse
of civil [or criminal] process is concerned with a
perversion of a process after it is issued.
McGee v. Feege, 517 Pa. 247, 253 (1987) (quoting Publix Drug Co. v.
Breyer Ice Cream Co., 347 Pa. 346 (1943)) (internal citations and
Abuse of process can be "by definition" a denial of procedural due
process because "[a] deprivation of liberty or a determination of guilt or
innocence may not be made on the basis of willingness to accede to
extortionate demands." Jennings, 567 F.2d at 1220. Because plaintiffs
have a constitutional right to not be deprived of their liberty interests
without procedural due process, see id., this court's first inquiry is
whether abuse of process did in fact occur in this case.
To prove abuse of process, plaintiffs must prove three elements: (1) an
abuse or perversion of process already initiated (2) with some unlawful
or ulterior purpose, and (3) harm to the plaintiffs as a result. Kedra
v. Nazareth Hosp., 868 F. Supp. 733, 738 (E.D. Pa. 1994) (citing Shaffer
v. Stewart, 473 A.2d 1017, 1019 ( Pa. Super. 1984)). "This requires that
the plaintiff offer some proof of a `definite act or threat not
authorized by the process, or aimed at an objective not legitimate in the
use of the process.'" Reinsmith v. Borough of Bernville, 2003 WL
22999211, *7 (E.D. Pa. Dec. 16, 2003) (quoting William v. Fender,
69 F. Supp.2d 649, 673 (M.D. Pa. 1999)). Examples of actions that are
recoverable under the abuse of process tort are "extortion by means of
attachment, execution or garnishment, and blackmail by means of arrest or
criminal prosecution." Barakat v. Del. County Mem'l Hosp., 1997 WL
381607, *2 (E.D. Pa. July 2, 1997) (citing Rosen v. Tesoro Petroleum
Corp., 582 A.2d 27, 33 ( Pa. Super. 1990)). As another court has stated,
a cause of action for abuse of process can be maintained "[w]hen process
is used to effect an extortionate demand, or to cause the surrender of a
legal right, or is used in any other way not so intended by proper use of
the process." Brown v. Johnston, 675 F. Supp. 287, 290 (W.D. Pa. 1987)
(citing Mines v. Kahle, 557 F. Supp. 1030, 1039 (W.D. Pa. 1983)).
In satisfaction of the first element, plaintiffs allege that
"[d]efendant Zelena's continuation of the Criminal Trial despite his
knowledge that the alleged conditions were remedied, demonstrates that
defendant Zelena was using the process for an unlawful object." Pls.'
Br. at 4. Defendant disputes this contention, claiming that Zelena's
testimony does not establish that "Zelena had knowledge of conditions
being remedied prior to filing the private criminal complaints." Defs.' Reply at 6. In
Reinsmith a similar neighborhood squabble involving municipal
officers, a borough ordinance, and one too many animals-plaintiffs
alleged that defendants' "onslaught of citations, including targeting
[them] with municipal ordinance," constituted abuse of process.
Reinsmith, 2003 WL 22999211, *7. The court declined to find that the
issuance of citations was the type of "definite act" rising to the level
of a "perversion," noting that plaintiffs' only allegation was that "[the
citations] were in fact issued." Id.
Similarly, plaintiffs in this case have failed to present evidence
sufficient to support the first element of an abuse of process claim.
Even if plaintiffs are correct that Zelena knew-before the morning of the
trial-that each violation had been corrected, his continued prosecution
does not constitute a "definite act or threat not authorized by the
process." Even if defendant Zelena had harbored bad intentions when he
filed the criminal complaints, "there is no cause of action for abuse of
process if the claimant, even with bad intentions, merely carries out the
process to its authorized conclusion." Cameron v. Graphic Mgmt. Assocs.,
Inc., 817 F. Supp. 19, 21 (E.D. Pa. 1992) (citing Shaffer v. Stewart,
473 A.2d 1017 (Pa. Super. 1984)). Plaintiffs have not presented evidence
that defendant Zelena desired or demanded anything other than the
action's authorized conclusion-criminal conviction. There is no
suggestion that defendant made "an extortionate demand" or otherwise
"perverted" the legal process. Accordingly, plaintiffs have failed to put
forth evidence that would support a claim for abuse of process.
Defendants' motion for summary judgment will be granted, therefore, with
respect to count IV's abuse of process action. For the same reasons,
defendants' motion for summary judgment will be granted on Count III,
which is plaintiffs' state law claim for abuse of process.
(C) Count V: § 1983 against defendant Borough of Bangor
In count V, plaintiffs bring a section 1983 claim against the Borough,
alleging that they were deprived of rights secured to them under the
Constitution due to a custom or policy in place in the Borough. More
specifically, plaintiffs claim that their Fourth, Fifth, Sixth, Eighth,
and Fourteenth amendment rights were violated due to the Borough's
failure to train and adequately supervise Zelena in his role as Zoning
The Borough argues that it is entitled to summary judgment on this
claim because plaintiffs have failed to establish any violation of their
constitutional rights. Plaintiffs, in response, contend that the Borough
should be liable for the actions of Zelena because of its inadequate
training, supervision, and practice of relying upon an unofficial edition
of the BOCA property maintenance code. The Borough cannot be held
responsible for unconstitutional actions of an employee on a theory of
respondeat superior; rather, in a suit against a municipality based on §
1983, "the municipality can only be liable when the alleged
constitutional transgression implements or executes a policy, regulation
or decision officially adopted by the governing body or informally
adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d
Cir. 1996) (citing Monell v. New York City Dept. of Social Services,
436 U.S. 658 (1978)). Like all § 1983 claims, however, the Borough's
liability depends upon a threshold determination that a constitutional
deprivation has occurred. See Baker v. McCollen, 443 U.S. 137, 140
(1979). Where there is no violation of a plaintiff's rights under the
constitution, however, there can be no municipal liability pursuant to §
1983. Because plaintiffs have failed to adduce evidence that they
suffered a deprivation of a constitutional right at the hands of defendant Zelena, as discussed
in detail below, I need not determine whether these alleged deprivations
were "visited pursuant to governmental custom" or resulted from "a policy
statement, ordinance, regulation, or decision officially adopted and
promulgated" by the municipality. Monell, 436 U.S. at 690-01.
In their motion for summary judgment, defendants address each amendment
that the plaintiffs cite in their § 1983 claim, arguing that the
plaintiffs have not produced evidence of constitutional deprivations of
the rights secured by any of the five specified amendments. See Defs.'
Mot. Summ. J. at 22-25. Plaintiffs do not respond to these arguments.*fn13
Instead, they highlight the lack of training and supervision provided to
Zelena by the Borough, arguing that the Borough's lack of training and
supervision resulted in the adoption, by Zelena, of the custom or policy
of enforcing an outdated version of the BOCA Code. Pls.' Br. at 15.
As defendants note in their brief, the imprecision with which
plaintiffs have plead this count makes it extremely difficult to assess
the validity of the alleged constitutional violations. To the extent that
plaintiffs' theory of municipal liability is based upon the Fourth
Amendment, plaintiffs' claim must fail for the same reasons detailed
above.*fn14 See supra § II.A. With respect to plaintiffs' Monell claim as it is grounded
in alleged Fifth Amendment violations, plaintiffs' reference to the Fifth
Amendment is vague and imprecise. The court's best understanding is that
plaintiffs' believe they were deprived of their liberty or property
without due process; plaintiffs, however, were criminally charged,
afforded a hearing, and the charges were withdrawn. They were not,
therefore, deprived of any liberty or property interests protected by the
Plaintiffs have also failed to present evidence of a Sixth Amendment
violation, as they have not alleged that they were deprived of assistance
of counsel, their right to confront witnesses, or their right to secure
the attendance of witnesses in their favor. With respect to the Eighth
Amendment-the violation of which plaintiffs allege to have given rise to
a Monell claim-plaintiffs do not allege that they were required to post
bail, pay a fine, or were punished in a cruel and unusual manner. To the
extent that plaintiffs' Monell claim relies upon the Eighth Amendment,
therefore, it must fail.
Finally, plaintiffs rely on alleged violations of the Fourteenth
Amendment as a basis for their Monell claim. The Fourteenth Amendment
prohibits the state from depriving individuals of life, liberty, or property without procedural
due process. See U.S. Const. amend. XIV. When a plaintiff brings a § 1983
claim based upon procedural due process, courts employ a two-prong
approach: first, are the "asserted individual interests" encompassed by
the fourteenth amendment's protection, and second, did "the procedures
available provide the plaintiff with `due process of law.'"Alvin v.
Suzuki, 221 F.3d 107, 116 (3d Cir. 2000) (citations omitted). Because
plaintiffs have failed to plead this claim with any particularity, the
court has no way of determining what the life, liberty, or property
interest is to which plaintiffs refer. Moreover, to the extent that
plaintiffs believe these deprivations stemmed from the criminal complaints
filed against them, plaintiffs were provided with due process sufficient
to satisfy the second prong of this test.*fn15 Their Monell claim must
fail, therefore, to the extent that it is based upon procedural due
For the foregoing reasons, summary judgment will be entered for
defendants on counts I, III, IV, and V. These claims were, taken
together, the basis for federal jurisdiction in this case.*fn16 Although dismissal of plaintiffs'
federal claims does not necessarily leave this court without any possible
basis for entertaining plaintiffs' remaining state law claims, I decline
to exercise my discretion to retain them. See 28 U.S.C. § 1367(c)(3).
Accordingly, counts II and VI will be dismissed without prejudice to
plaintiffs' right to raise them in a tribunal that enjoys jurisdiction
over them. An appropriate order follows. Order
And now, this ___ day of May, 2004, upon consideration of defendants'
motion for summary judgment and the memorandum of law in support thereof
(Doc. #16), plaintiffs' response thereto (Doc. #19), and defendants'
reply (Doc. #23), it is hereby ORDERED that:
Defendants' motion for summary judgment is GRANTED in part;
JUDGMENT IS ENTERED in favor of defendants and against plaintiffs on
counts I, III, IV, and V;
The remaining counts of plaintiffs' complaint are DISMISSED WITHOUT
PREJUDICE to plaintiffs' right to advance them in a forum enjoying
jurisdiction over them.