Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, E.D. Pennsylvania

May 5, 2004.


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 defendant Zavacky.

  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.


 The Properties

  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

 Zelena's Appointment

  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 investigation. Id.

 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 out.
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 risk!
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 alleged violations.

  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 100.

  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 to.
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. Y, Z).

 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

  Malicious Prosecution

  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, 388(1989).

  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. at 223.

  In this case, plaintiffs do not allege that they were formally arrested or detained. The entirety of their "seizure" analysis, in fact, reads as follows:

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 prosecution action.

  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 quotations omitted).

  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 Officer.

  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 Fifth Amendment.

  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 process.


  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.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.