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Gagliardi v. Fisher

March 16, 2007


The opinion of the court was delivered by: Conti, District Judge.


I. Introduction

Plaintiff John Gagliardi ("plaintiff") filed this civil action against defendants D. Michael Fisher, former Attorney General of Pennsylvania ("Fisher"), Kenneth Nye, Supervisory Special Agent ("Nye"), David K. Frattare, Special Agent ("Frattare"), Jack O'Brien, Special Agent, Bureau of Criminal Investigations ("O'Brien"), the Commonwealth of Pennsylvania, Office of Attorney General ("Attorney General's Office"), Barbara Hafer, Treasurer of Pennsylvania ("Hafer"), Michael Chapel, Treasury Investigator ("Chapel"), and the Commonwealth of Pennsylvania, Office of the Treasurer ("Treasurer's Office"), in their personal and official capacities (collectively referred to as "defendants"), alleging various federal constitutional claims under 42 U.S.C. § 1983, claims under the Pennsylvania Constitution, and various tort claims arising under Pennsylvania law. The action was initially commenced by plaintiff in the Pennsylvania Court of Common Pleas, Allegheny County, and defendants removed the case to this court pursuant to 28 U.S.C. § 1441. Jurisdiction over plaintiff's federal question claims is predicated on 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over plaintiff's state law claims is predicated on 28 U.S.C. § 1367.

Pending before the court is a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendants (Doc. No. 6). Defendants seek to dismiss plaintiff's complaint in its entirety for failure to state claims upon which relief can be granted. The court finds that plaintiff, with respect to his federal question claims, failed to state any claim upon which relief can be granted. The court will dismiss these claims with prejudice, since leave to amend would be futile. Given that plaintiff's federal question claims will be dismissed, and since his remaining claims arise under Pennsylvania law, the court will decline to exercise supplemental jurisdiction over those claims. 28 U.S.C. § 1367(c)(1), (3).

II. Facts Accepted as True for the Purpose of Deciding the Motion

The complaint is lengthy and make numerous factual allegations which must be accepted as true for the purpose of deciding the motion to dismiss. Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006). The following facts were set forth in the complaint and are accepted as true for purposes of this decision. The court, however, makes no findings regarding the truth of the complaint's allegations.

A. General Background

Plaintiff is an author and inventor of the Multi-stage Liquid Elevator. (Court of Common Pleas Complaint ("Compl."), Doc. No. 1-3 ¶ 1). He is also a philanthropist and a retired warehouseman, and his office is located in the USI Industrial Park at 191 Wall Road, Jefferson Hills, Pennsylvania, 15025 (the "premises"). Id. At the time of the events alleged by plaintiff, Fisher was the Attorney General of Pennsylvania and Hafer was the Treasurer of Pennsylvania. Id. ¶¶ 2, 7. Nye was a Supervisory Special Agent with the Bureau of Criminal Investigations, which is located within the North Huntington office of the Attorney General's Office. Id. ¶ 3. Frattare was a Special Agent within that same office. Id. ¶ 4. O'Brien was a Special Agent with the Bureau of Criminal Investigations, which is located within the Harrisburg office of the Attorney General's Office. Id. ¶ 5. Chapel was an investigator employed by the Pennsylvania Office of the Treasurer, which is located in Harrisburg, Pennsylvania. Id. ¶ 8.

(1) AT&T Litigation

William Fiore ("Fiore") had knowledge of Bell System telecommunications equipment that was dumped in the Kelly Run Landfill. Id. ¶ 34. The equipment consisted of extremely valuable materials that were factored into a scheme to generate false labor hours, thereby increasing the telephone bills of various customers. Id. The Attorney General's Office had threatened plaintiff with prosecution in the 1980's due to his assistance to Fiore. Id. Fiore was the target of a prosecution himself. Id. ¶ 34. At the time of Fiore's death in January 2003, plaintiff was assisting his efforts to sue the Attorney General's Office. Id. In 1979, plaintiff had attempted to call a fraudulent scheme by AT&T to the attention of federal and state authorities. Id. ¶ 35. At that time, plaintiff was in contact with both the Pennsylvania Public Utilities Commission and the Pennsylvania Attorney General's Office. Id. Nye emerged as the contact person for both agencies. Id.

Plaintiff reasonably believed that a settlement may have been forthcoming in a state lawsuit against AT&T that had been filed by USIF, Inc. in 1980 at GD 80-21577. Id. ¶ 71-72. AT&T was the parent company of two wholly owned subsidiaries, which were known as Bell Telephone Company of Pennsylvania and Western Electric Company. Id. ¶ 72. In 1978, AT&T initiated a settlement parley at which plaintiff was to meet with senior executives from AT&T, Bell Telephone Company and Western Electric Company. Id. ¶ 73. Thereafter, AT&T leaders hosted plaintiff and Dr. Gabriel DeMedio, the USIF, Inc., vice-president, on a trip to AT&T's New York headquarters. Id. AT&T promised to settle all outstanding matters. Id. When Dr. DeMedio was proffered as a defense witness in connection with matters relating to a letter found in 2002 and as a source of potentially useful information for the Attorney General's Office, he was not contacted by any of the appropriate authorities. Id. ¶ 75.

(2) Criminal Charges Relating to Alleged Forgery

On March 31, 2003, Frattare applied for, and received, a search warrant issued by District Justice Thomas S. Brletic of Magesterial District 05-2-13, which is located in McKeesport, Pennsylvania. Id. ¶ 11. The warrant authorized a search of the premises, as well as the seizure of computers and documents pertaining to correspondence allegedly signed in 1987 and purportedly sent to plaintiff by State Senator Albert V. Belan (the "Belan letter"). Id. ¶¶ 11, 18. The Belan letter announced the discovery of 5,000 shares of AT&T stock being held by the Treasurer's Office's Bureau of Unclaimed Property for plaintiff pursuant to a 1981 civil lawsuit settlement involving the Reed, Smith, Shaw & McClay law firm. Id. ¶ 17. The Belan letter was found in 2002 by Nichelle Bonetti ("Bonetti"), a typist for plaintiff. Id. ¶ 19. The affidavit of probable cause accompanying the search warrant stated that Bethany Wingerson ("Wingerson"), a former senatorial assistant to Senator Belan, had indicated that the letter had not been prepared at Senator Belan's office. Id. ¶ 28. According to the affidavit, it was a logical inference that the letter was a forgery. Id. ¶ 29, Ex. A., Affidavit of Probable Cause at 4.

On April 1, 2003, Frattare and O'Brien, who were accompanied by fellow agents Shawn Murphy ("Murphy"), Dennis Dansak ("Dansak"), and four other agents, secured and occupied the premises with the assistance of a municipal police department. Id. ¶ 13. Ingress and egress to and from the premises was controlled by the agents, who turned away several people who were seeking to visit plaintiff. Id. ¶ 14. At least three agents entered Building No. 3 on 141 Wall Road. Id. ¶ 15. They were observed in the office of Julius Jones of Step-Van Services Co., Inc., when plaintiff entered the office. Id.

Upon seeing plaintiff, the agents announced that their objective was to locate the original Belan letter, if any such letter existed, that was purportedly prepared by Senator Belan's office. Id. ¶ 16. The agents requested that plaintiff provide them with the original letter, inquiring whether it was the actual document allegedly signed in 1997. Id. ¶ 18. Bonetti had found the document in 2002 while clearing off some shelves in Jones' office. Id. ¶ 19.

While the search was underway, Bonetti pulled into the USI Industrial Park. Id. ¶ 20. She was intercepted by agents who prevented her from having contact with plaintiff. Id. Robert Welsh, a Jefferson Hills police officer, took measures to prevent plaintiff from having any contact with Bonetti. Id. ¶ 21. The agents collected all copies of the Belan letter that they were able to find, as well as numerous pleadings in which plaintiff had referred to the discovery of the letter. Id. ¶ 22. Two computers were seized, along with several floppy discs. Id. ¶ 23. During the search, the agents extensively photographed and videotaped the premises, including plaintiff's Multi-Stage Liquid Elevator for gas and oil wells, a patented prototype which was outside of the office and located in a warehouse.

Id. ¶ 24. The agents insisted that plaintiff open a fireproof filing cabinet located in the warehouse, which operated as a locked safekeeping device. Id. ¶ 26. After plaintiff complied with this request, the cabinet was inspected by Frattare and Dansak. Id. No copies of the Belan letter were observed. Id. The agents observed silver coins, gold jewelry and a bag of federal reserve notes. Id. When the agents asked plaintiff why these materials were in the safe, plaintiff explained that they were used for bartering and trading. Id. After spending several hours at the premises, the agents left without making any arrests. Id. ¶ 27.

After the search of the premises, plaintiff wrote extensive letters to Frattare, Dansak, O'Brien and Fisher, attempting to explain his reasonable belief that the Belan letter referred to actual property to which he was entitled. Id. ¶ 36. Plaintiff received no correspondence in response to these letters. Id. A few weeks after the search, plaintiff filed a motion for return of property, "which requested that either the documents and equipment seized be returned or that duplicates be made of all documents impounded[,] as well as the documents electronically recorded within the hard drives of the computers taken." Id. ¶ 37. "The motion further complained that the photographing and videotaping of patented devices and processes was official action outside the scope of the warrant issued." Id. Prior to the hearing on the motion for the return of property, which was originally scheduled for May 1, 2003, plaintiff subpoenaed Frattare, Murphy and Dansak. Id. ¶ 38.

Within a day of receiving legal process, Frattare and Murphy confronted Bonetti outside of her residence, attempting to extract a confession that she had composed the Belan letter at plaintiff's direction. Id. ¶ 39. When Bonetti declined to make the confession, the agents "counseled her on the perils of prosecution for conspiracy[.]" Id. When Bonetti proposed alternative theories as to the origins of the letter, the agents expressed an "astonishingly dismissive attitude" toward considering theories that did not implicate plaintiff as a wrongdoer. Id. On May 14, 2003, while the investigation into the origins of the letter was underway, plaintiff filed a suit in federal court against Fisher, Frattare and O'Brien, seeking an injunction against any threatened state prosecution in connection with the alleged forgery. Id. ¶ 40; Gagliardi v. Fisher, et al., No. 03-685 (W.D.Pa.).

On July 21, 2003, Frattare filed several criminal charges against plaintiff relating to the Belan letter which included two second degree felony counts of forgery under 18 PA. CONS. STAT. §§ 4101(a)(2) and 4101(a)(3) and one third degree felony count of attempted theft by unlawful taking under 18 PA. CONS. STAT. § 3921(a).*fn1 Compl. ¶ 41. The next day, plaintiff was arrested by Frattare and Murphy. Id. ¶ 66. District Justice Boyle imposed a $30,000 straight cash bond at the arraignment. Id. Plaintiff was subsequently imprisoned in the Allegheny County Jail for two days, July 22-24, 2003. Id. ¶ 67.

The complaint filed by Frattare referred to 5,000 shares of AT&T stock worth $179,000, but the copy of the Belan letter included with the search warrant application completed by Frattare valued that purported AT&T stock at $175,900. Id. ¶ 69. In addition, Frattare's complaint confused the date of the alleged offense as March 25, 2002. Id. ¶ 70. The agents did not interview the attorneys who worked for a law firm that had filed lawsuits against AT&T, declining to follow leads in letters of inquiry which were sent by plaintiff to two of those attorneys. Id. ¶ 71. The response of one attorney, which was dated November 10, 2002, gave plaintiff no hint that the Belan letter may have been forged. Id.

Plaintiff obtained a change of magisterial venue for the criminal case from the Pennsylvania Court of Common Pleas, Allegheny County, which reassigned the case to District Justice Armand Martin. Id. ¶ 77. District Justice Martin served in Clairton, Pennsylvania. Id. On October 27, 2003, after a preliminary hearing, plaintiff was discharged from the charges of forgery and attempted theft by unlawful taking. Id. ¶ 78.

District Justice Martin dismissed the charges because he found no evidence directly connecting plaintiff to the alleged forgery, even though there was evidence that the Belan letter had probably been forged. Id. ¶ 79. At the behest of Nye, Frattare refiled the same charges against plaintiff. Id. ¶ 80.

B. Allegations Against Specific Parties

(1) Michael Fisher

Almost immediately after the search of his premises, plaintiff complained to Fisher. Id. ¶ 175. Fisher, who was the ultimate supervisor of all officers, employees and agents of the Attorney General's Office, never acknowledged plaintiff's correspondence. Id. ¶ 176. As the "final authority for exercises of prosecutorial discretion[,]" Fisher either authorized the prosecution of plaintiff or abdicated his duty to abort it. Id. ¶ 179.

(2) Kenneth Nye

Shortly after May 16, 1978, in his capacity as the District Supervisor for the Public Utilities Commission ("Commission"), Nye received a letter from Charles M. Byrnes ("Byrnes"), who was serving as a business agent for the General Teamsters Local Union 249. Id. ¶ 180. This correspondence sought to enlist the interest of the Commission is penalizing United States Industrial Fabricators ("USI") of Clairton, Pennsylvania, for hauling and warehousing materials from White Terminal, Inc. Id. ¶ 181. Nye sought to prosecute USI after receiving Byrnes' letter. Id. ¶ 203. Byrnes was later promoted to the executive leadership of General Teamsters Local Union 249. Id. ¶ 204.

After establishing this relationship with Nye, Byrnes became implicated in a series of illegal activities related to the union. Id. ¶ 205. Because of his relationship with Nye, however, Byrnes was protected from prosecution. Id. ¶ 206. Nye discouraged Thomas Crawford and Alexander Lindsay, who were federal prosecutors, from prosecuting Byrnes. Id. ¶¶ 207-08. As the District Supervisor for the Commission, Nye was aware that plaintiff's litigation against AT&T involved matters that were settled in 1981 and matters that remained unsettled. Id. ¶ 212. Nye was aware that a writ of summons commencing formal litigation against AT&T had never been discontinued, thereby causing plaintiff to be confused. Id. ¶ 213.

Since Nye was Frattare's immediate supervisor, plaintiff avers that Nye made the original decision to request a warrant to search plaintiff's premises. Id. ¶ 182. Nye delegated the assignment of actually seeking and procuring the search warrant to Frattare. Id. ¶ 183. It was Nye who made the decision to apply for a search warrant from District Justice Brletic. Id. ¶ 184.

During the execution of the search, Nye maintained telephonic or supervisory contact with the agents who were at plaintiff's premises. Id. ¶ 185. He reviewed the property that was seized and collected by Frattare and O'Brien. Id. ¶ 186. Nye authorized O'Brien to review the byte stream of plaintiff's computer in a search for evidence of criminal activity. Id. ¶ 187. O'Brien was instructed by Nye to provide readable copies of documents generated by plaintiff's computers, regardless whether they were immediately recognized as being connected with the investigation into the origins of the Belan letter. Id. ¶ 188. Based upon his review of the property, Nye called plaintiff's activities to the attention of other governmental agencies. Id. ¶ 189.

The search extended to two offices of Building No. 3 and a warehouse located outside. Id. ¶ 191. At the time of the warrant's execution, Nye had been familiar with the general layout of the USI Industrial Park for roughly twenty-five years. Id. ¶ 192. The Treasurer's Office did not specifically request that the Attorney General's Office prosecute plaintiff, opting instead to recommend only an investigation into the origins of the Belan letter. Id. ¶¶ 193-94. The decision to prosecute plaintiff was made by Nye. Id. ¶ 195. It was Frattare who actually implemented the prosecution. Id. ¶ 196. Following the dismissal of the charges after the preliminary hearing before District Justice Martin, Nye conferred with Senior Deputy Attorney General Anthony Krastek ("Krastek"), who ultimately prosecuted plaintiff. Id. ¶ 197. Nye subsequently authorized Frattare to refile the charges against plaintiff. Id. ¶ 198.

Plaintiff avers that, but for the recommendations made by Nye, Frattare and Krastek would not have pursued the charges against plaintiff. Id. ¶¶ 199-200. Nye recommended that plaintiff be prosecuted without giving proper consideration to evidence that was discovered after the first preliminary hearing before District Justice Martin. Id. ¶ 201. Plaintiff further avers that Nye's recommendation that plaintiff be prosecuted was made in retaliation for plaintiff's attempts in the late 1970s to expose AT&T's corporate fraud. Id. ¶ 214.

(3) David Frattare

Frattare was advised that plaintiff tried to contact Senator Belan and Wingerson, who purportedly prepared the Belan letter. Id. ¶ 216. Frattare did not compare the print and style of the type used in the Belan letter with that used in other correspondence. Id. ¶ 218. He commenced the prosecution against plaintiff before the results of laboratory testing were available. Id. ¶ 219. He did not contact State Representative David K. Levdanski or State Senator Sean Logan to confirm that plaintiff was seeking information from them regarding property being held by the Treasurer's Office. Id. ¶ 220. Frattare never inquired as to why Senator Belan was noncommittal about the source of the letter or why he referred all related questions to Wingerson. Id. ¶ 221.

With respect to the alleged underlying 1981 settlement, plaintiff avers that Frattare made no attempt to uncover the precise circumstances surrounding the litigation or the resulting expectations which may have led plaintiff to believe that the Belan letter was genuine. Id. ¶¶ 222-26. With respect to the search of plaintiff's premises and the seizure of his property, Frattare never clarified why he believed that he could use digital cameras and a video camcorder to photograph exhaustively the interior of plaintiff's office and warehouse. Id. ¶ 227. Frattare never explained why various patented devices and unpatented phototypes of potentially useful industrial materials were photographed during the search. Id. ¶ 228.

Although Frattare received the search warrant on March 31, 2003, and proceeded to conduct the search the next day, he took over three months to commence the prosecution. Id. ¶ 233. Nevertheless, during this period of time, he never looked into the possibility that plaintiff was the victim of a hoax perpetrated by an alternative forger, nor did he engage in an investigation which might have implicated someone other than plaintiff in the alleged forgery. Id. ¶¶ 230-50. Frattare made no effort to inquire as to whether Fisher or Nye was acting to avenge plaintiff's support for Fiore in the early 1980s. Id. ¶ 231. Without obtaining direct evidence regarding the origins of the Belan letter, Frattare pursued the prosecution against plaintiff despite indications that plaintiff was incapable of typing or using a word processor on his own. Id. ¶¶ 238-39. Frattare did not locate anyone associated with the Treasurer's Office who had indicated to plaintiff that the Belan letter had been forged. Id. ¶¶ 244-49. He effectively ratified Chapel's decision to allow plaintiff to be misled by a forger who was potentially operating in plaintiff's own office. Id. ¶ 250.

Using the Belan letter as a justification, Frattare searched through various documents and computer files. Id. ¶ 252. He did not explain a theory regarding the methodology allegedly used by plaintiff to commit the crime, thereby subjecting plaintiff to unfair surprise. Id. ¶¶ 258-59. Frattare made no effort to seek clarification in the wake of a numerical discrepancy. Id. ¶ 257. Although the letter included within the search warrant application made by Frattare for District Justice Brletic noted that the amount of AT&T stock being held for plaintiff was valued at $175,900, Frattare's complaint against plaintiff referred to 5,000 shares of AT&T stock valued at $179,000. Id. ¶ 257.

(4) Jack O'Brien

O"Brien was responsible for analyzing the computers taken during the search of plaintiff's premises. Id. ¶ 260. Plaintiff avers that O'Brien could have mitigated hardships to plaintiff at the time of the seizure, but that he chose not to accommodate any of plaintiff's federal litigation needs. Id. ¶ 261. Consequently, plaintiff was unable to access a vast amount of documentation that was retrievable only on a computer. Id. ¶ 262. This information was vital for plaintiff to respond to the demands of litigation that was pending in both federal and state courts. Id. O'Brien gave Frattare and Nye access to plaintiff's business and personal correspondence, along with that of various family members and friends of plaintiff who were permitted to use the computers. Id. ¶ 263.

(5) Barbara Hafer

Hafer's office was uncooperative with plaintiff when he sought to determine whether he had a claim to 5,000 shares of lost stock. Id. ¶ 264. Employees of the Treasurer's Office never told plaintiff that the Belan letter did not appear to be authentic. Id. ¶ 265. Plaintiff was told by the Treasurer's Office that no reference to the 5,000 shares of stock had been located. Id. ¶ 266. As a result, plaintiff was lulled into a secure, but false, belief that government officials were diligently searching for records related to the shares of stock referenced in the Belan letter. Id. Because nobody squarely confronted plaintiff about the possibility that the Belan letter was a forgery, plaintiff was dissuaded from investigating whether someone was trying to perpetrate a hoax at his expense. Id. ¶ 267.

(6) Michael Chapel

On May 9, 2002, Chapel prompted Iris Klinepeter ("Klinepeter") of the Treasury Department's Office of Unclaimed Property (Administrative Office) to call plaintiff on the telephone for the purpose of inquiring about the original copy of the Belan letter. Id. ¶¶ 268-70. With Klinepeter's consent, Chapel monitored Klinepeter's conversation with plaintiff. Id. ¶ 271. Plaintiff was not advised that his conversation with Klinepeter was being monitored. Id. ¶ 272. Chapel did not seek the approval of the Pennsylvania Attorney General, the Dauphin County District Attorney or the Allegheny County District Attorney before recording or transcribing the conversation.*fn2 Id. ¶ 274.

By May 9, 2002, the Treasurer's Office had begun to doubt the authenticity of plaintiff's claims regarding the 5,000 shares of stock referred to in the Belan letter. Id. ¶ 277. Although it was suspected that the letter was a forgery, no Treasurer's Office officials disclosed this suspicion to plaintiff. Id. ¶ 278. Klinepeter's call to plaintiff was not for the purpose of investigating plaintiff's claim. Id. ¶ 279. Instead, it was for the purpose of obtaining information relevant to a criminal investigation. Id. Chapel (or one of his colleagues) subsequently referred the matter to the Attorney General's Office for a criminal investigation and possible prosecution. Id. ¶ 280. No serious "investigative consideration" was given to the possibility that plaintiff was the victim of another's forgery rather than a forger himself. Id. ¶ 281.

(7) Offices of Attorney General and Treasurer

Plaintiff avers that the Attorney General's Office and the Treasurer's Office are liable for all the state tort law and state constitutional law violations alleged in the complaint.*fn3 Id. ¶¶ 282, 284.

III. Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits. Rather, when considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). "The pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost, 1 F.3d at 183 (quoting 5A CHARLES A. WRIGHT& ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE § 1357 (2d. ed. 1990)).

A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if, accepting as true the facts alleged and all reasonable inferences that can be drawn therefrom, there is no reasonable reading upon which the plaintiff may be entitled to relief. Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006). Moreover, the court is under a duty to examine the complaint independently to determine if the factual allegations set forth could provide relief under any viable legal theory. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

While this court is mindful that pro se plaintiffs are not held to as high of a standard as litigants that are represented by counsel, a pro se plaintiff must still plead the essential elements of his or her claim and is not excused from conforming to the standard rules of civil procedure. McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel . . . ."); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a plaintiff, even though he is pro se, must set forth sufficient information ...

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