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Esposito v. Galli

August 9, 2006


The opinion of the court was delivered by: Judge Jones



Pending before the Court are Motions for Summary Judgment (docs. 69, 71) filed by Defendants Daniel Mimnaugh ("Mimnaugh") and Leonard Galli ("Galli") (together, "Defendants") on January 4, 2006. For the reasons that follow, the Motions shall be granted in part and denied in part.


The plaintiffs, Joseph Esposito ("Esposito") and John J. Petrucci, Jr. ("Petrucci") (together, "Plaintiffs") initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle District of Pennsylvania on March 5, 2004. In addition to Mimnaugh and Galli, the complaint named David J. Swartz ("Swartz") as a Defendant; however, on December 6, 2005, after the close of discovery, Plaintiffs filed a Stipulation for the Voluntary Dismissal of Swartz. (Rec. Doc. 63).

Plaintiffs' civil rights action asserts violations of the First, Fourth, and Fourteenth Amendment rights to the United States Constitution, § 1983 conspiracy claims, as well as various state law claims.

On January 4, 2006, Defendants filed the instant Motions, which have been briefed by the parties. The Motions are therefore ripe for disposition.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. See id. at 325.

Rule 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. See Celotex, 477 U.S. at 322-23 (1986).

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)(citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.


The facts in this matter are largely disputed by the parties. We are presented with detailed disputed factual summaries and extensive discovery material. We will not attempt to conduct a piecemeal examination of each fact presented by the parties, but will discuss the relevant factual background necessary to resolve the pending Motions. We will, where necessary, view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party, Plaintiffs, in our analysis of the pending Motions.

On or about January 29, 2002, Defendant Galli, in his capacity as an Exeter Borough Police Officer, was engaged in a conversation with Michael Stoss ("Stoss"), who was employed in the Public Works Department of Exeter Borough.*fn1

Stoss indicated to Galli that he had made a final payment to Exeter Borough ("the Borough") of $150 which he owed to the Borough since the Borough had paid for Stoss to get his driver's license back. Galli then had a conversation with Stoss' brother, George Stoss, another Borough employee, who told Galli that Borough funds had been used to pay off a money judgment which was the responsibility of Stoss. Stated another way, Galli became aware that the Borough had made an interest free loan in the amount of $800 to Stoss, a Borough employee, so that he could pay off a personal judgment and get his driver's license back. When George Stoss testified that he asked Galli whether a personal loan to an employee was an appropriate use of Borough funds and Galli said that he did not know, George Stoss suggested that he should look into it.

Galli then submitted a written request to the Borough Secretary, Debra Serbin ("Serbin") for copies of all the documentation regarding the loan that had been given to Stoss. Galli conducted an interview with Stoss at his residence on February 6, 2002 in which Stoss confirmed that Borough Council had loaned him money because the Council wanted Stoss to get his driver's license reinstated. Galli subsequently secured a copy of the file documenting the loan to Stoss. Galli also had a brief conversation with Exeter Borough Police Chief McNeill about the loan to Stoss. Galli indicated in his investigation that Chief McNeill had advised him that the Borough Council wanted Stoss to get his license back because the Borough Council did not want to pay someone to taxi Stoss around all day. At the conclusion of Galli's interviews, he turned over the records and information that he had gathered to the Pennsylvania State Police ("PSP").

Defendant Mimnaugh asserts that Galli then approached Chief McNeil with his findings, expressed his belief that a crime had been committed by Joseph Esposito ("Esposito") and John Petrucci ("Petrucci"), councilmen for the Borough, and possibly others, and asked Chief McNeil to investigate it or to grant him permission to investigate further. Chief McNeil forbade Galli to investigate further and told him to refer the matter to the PSP. Plaintiffs assert that Galli approached Chief McNeil and dispute that Galli expressed his belief that Plaintiffs and possibly others had committed a crime. Rather, Plaintiffs maintain that Galli testified that he "felt that there was a criminal act that had been committed by these two gentlemen [Mr. Esposito and Mr. Petrucci]." (Rec. Doc. 97 at ¶ 6). Plaintiffs then contend that such is evidence that Galli was targeting only Plaintiffs from the beginning, even though their involvement with the check at issue was no more than that of the other five councilmen. Plaintiffs note that Petrucci's involvement was far less than that of the other councilmen because he was not present for the work session or vote and his discussions about the check were fewer than that of other councilmen. Id.

We will now address factual circumstances concerning Galli and Mimnaugh, to the extent relevant in the case sub judice. As teenagers, Galli and Mimnaugh were introduced by a mutual friend and spent some time together socially. Plaintiffs further assert that Galli and Mimnaugh have known each other for over twenty years and that they went on vacation together to Ocean City, Maryland. "Trooper Mimnaugh had been to Leonard Galli's house and spent some time with Galli's mother, father and sister. Mimnaugh's relationship with Galli is sufficiently familiar that he spontaneously refers to Leonard Galli as 'Lenny.' As part of his investigation, Trooper Mimnaugh actually told the Exeter Borough Secretary Debra Serbin that he was a friend of Leonard Galli." Id. at ¶8. In addition, Galli knew that Mimnaugh was a PSP trooper assigned to the Organized Crime Unit, and they worked out at the same gym. In fact, Galli approached Mimnaugh at the gym and asked him whether the PSP would be interested in the case.

Mimnaugh told Galli that he would ask his supervisor, Corporal Kevin Schmidt ("Corporal Schmidt") whether the PSP was interested in investigating the matter. Mimnuagh talked to Corporal Schmidt about the information that Galli had relayed to him and Corporal Schmidt decided that the PSP would investigate the matter. Corporal Schmidt assigned the investigation to Trooper David Swartz ("Swartz") as the lead investigator. In that regard, Plaintiffs contend that the case was assigned to Swartz because Mimnaugh had a conflict of interest due to his friendship with Galli. "Despite Mimnaugh's conflict of interest in the case, he participated in interviews right from the very beginning of the investigation. Mimnaugh eventually took over from Swartz and became the affiant/swearing witness on the Criminal Complaint and Affidavit of Probable Cause to arrest and charge the plaintiffs with crimes." Id. at ¶ 13. After Corporal Schmidt decided that the PSP would investigate the matter and assigned the case to Swartz, Galli provided copies of documents he had obtained and his report to the PSP. There is a factual dispute between the parties as to whether everything contained in Galli's report is undisputedly true as Plaintiffs submit that inconsistencies, inaccuracies, and potential fabrications are present. An additional factual dispute concerns whether subsequent to providing the documents to the PSP, Galli played a role in the decision to charge the Plaintiffs. Mimnaugh asserts that subsequent to providing the documents to the PSP, Galli had no conversations with him, Swartz, or the members of the Luzerne County Office of the District Attorney's Office that approved the filing of the charges in this matter, Assistant District Attorney Andrew Duncan and District Attorney David Lupas, and played no role in the decision to charge Plaintiffs. (Rec. Doc. 90 at ¶ 17).

After receiving the documents from Galli, Swartz interviewed the current Borough Secretary, Serbin, the prior Borough Secretary, Carol Stolarick ("Stolarick"), the recipient of the $800, Theodore J. Kerpovich, Jr. ("Kerpovich"), and Esposito between February 20, 2002 and February 22, 2002. Mimnaugh accompanied Swartz on these interviews. During her interview with Swartz and Mimnaugh, Stolarick said that she wrote the February 12, 1998 check to Kerpovich; however, it is disputed as to whether she wrote the check at the direction of Petrucci. Stolarick also indicated that Esposito and Petrucci had a discussion in her office about doing a payroll deduction for Stoss for repayment of the loan.

Stolarick told Swartz and Mimnaugh that Petrucci instructed her to transfer federal grant money to the general fund to "pay the Leonard Galli civil suit," and provided them with a note from Petrucci directing her to make the transfers. In response, Plaintiffs assert that this portion of the interview has no bearing on the $800 check, or anything even tangentially related to the check. "However, it is evidence that Mimnaugh and Swartz were not merely investigating this $800 loan from Exeter Borough to an employee, but instead were targeting Mr. Petrucci for whatever alleged improprieties they conceivably could uncover." (Rec. Doc. 97 at ¶ 22). Stolarick told Swartz and Mimnaugh that she was uncomfortable with the way money was handled in the Borough and she thought that the finances in the Borough were poorly run and very unorganized. In addition, Stolarick testified that she assumed she was to take direction from Petrucci and Esposito because they were the ones who interacted with her and were the only members of the Finance Committee. Moreover, Stolarick testified that no one other than Petrucci and Esposito ever directed her to write checks.

Swartz was unable to continue the investigation because from late February 2002 until after Plaintiffs were arrested on April 2, 2002, he was detailed to Reading, Pennsylvania for long-term investigation involving a wiretap. In Swartz's absence, Mimnaugh and Trooper Thomas Bachman ("Bachman") interviewed Petrucci.

With regard to the loan at issue, it was not identified under "New Business" on the Borough Council Meeting Agenda for January, February, or March 1998. Plaintiffs further note that the March 1998 Agenda lists the $800 check made payable to Theodore Kerpovich under the heading "Prepaid Bills for the Month of February." There was no public discussion about the loan at a council meeting.*fn2

While the prepaid bills were approved by council, neither the loan, nor the specific check to Kerpovich were specifically discussed or voted on at the council meeting. It is undisputed that the check was written on February 12, 1998; however, it is also undisputed that the check was not given to Kerpovich until at least April 1998. Accordingly, Defendants argue that there was no reason for the check to be listed under prepaid bills in February 1998, as prepaid bills encompass money that was already disbursed before council got to the table.

During her deposition, Serbin testified that when she took the position of Secretary-Treasurer for the Borough in April 1998, the $800 check to Kerpovich was in her office and she did not know what it was for. Plaintiffs additionally note that Serbin testified that Chief McNeil told her the ...

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