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Fera v. Borough

September 20, 2007

NICHOLAS FERA, JR., PLAINTIFF,
v.
BALDWIN BOROUGH, A MUNICIPALITY, JOHN CONLEY, MEMBER OF COUNCIL, DAVID DEPRETIS, MEMBER OF COUNCIL, MICHAEL DUCKER, MEMBER OF COUNCIL, MICHAEL E. FETSKO, JR., MEMBER OF COUNCIL, JOHN FERRIS, JR., MEMBER OF COUNCIL, FRANCIS SCOTT, MEMBER OF COUNCIL, CHRISTOPHER T. KELLY, AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY OF CHIEF OF POLICE OF BALDWIN POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

MEMORANDUM OPINION

On 2007, this Court entered the following Order denying Defendants' motions to dismiss*fn1 Plaintiff's state common law defamation claims, only:

In light of Plaintiff's Amended Complaint (doc. no. 15) filed on February 20, 2007, Defendants' initial motions to dismiss (doc. nos. 4 and 8) were denied on February 21, 2007, without prejudice.

Subsequently, Baldwin Borough and the Baldwin Borough councilmen named as Defendants filed two identical motions to dismiss Plaintiff's Pennsylvania common law defamation and conspiracy claims, his federal civil rights claim under 42 U.S.C. § 1983, and his request for attorneys fees under 42 U.S.C. § 1988, (docs. no. 23 and 25), [FN1 omitted] accompanied by identical briefs. (docs. no. 24 and 26). Counsel failed, however, to electronically sign these motions and briefs, necessitating "Erratas" to the two motions and to the two briefs in support of the motions, (docs. no. 28, 29, 30, 31), which "Erratas" attached signed motions and briefs appearing, from the docket, to be replacements for the motions and briefs previously filed, only with signatures. The ECF docket still lists documents 23 and 25 as the pending motions to dismiss, as it apparently does not pick up "Errata" motions as separate motions.

As Plaintiff correctly points out in his "Motion to Strike Documents 23 through 26" (doc. no. 35), the motions and briefs Defendants filed as "Errata" at documents no. 28 through no. 31 are not identical to the unsigned documents no. 23 through no. 26, and the motions to dismiss do not request the same relief. To the contrary, the "new" motions to dismiss now [curiously] request dismissal of only the defamation claim, not the conspiracy or the civil rights claims, or request for attorneys fees under section 1988.*fn2

The Court will grant Plaintiff's motion to strike the unsigned motions at document nos. 23 and 25, will deem the "Errata" motions at document nos. 28 and 30 to be the pending motions, and, after careful consideration of these motions and Plaintiff's response thereto, will deny the pending motions to dismiss, except as to Baldwin Borough which, plaintiff agrees, is not liable for defamation.

Viewed in light of the forgoing liberal pleading standards, this Court simply cannot say, at this early stage of the proceedings, that Plaintiff will be able to state no set of facts in support of his defamation claim. Ordinarily, Pennsylvania public officials are immune from liability for defamation under the Pennsylvania Political Subdivision Tort Claims Act, see 42 Pa.Cons.Stat. Ann. §§ 8542, 8546, but individual officials may be liable if their alleged defamatory statements amounted to willful misconduct, which includes gross negligence, and intentional or reckless misconduct. See, e.g., Ferrone v. Onorato, 439 F.Supp.2d 442, 453 (W.D.Pa. 2006). Accordingly, Defendants' motions to dismiss will be denied.

IT IS HEREBY ORDERED that said motions to dismiss (at docs. nos. 28 and 30) ARE DENIED without prejudice to Defendants' raising the issues set forth therein in a motion for summary judgment at the appropriate time following discovery.

IT IS FURTHER ORDERED that Plaintiff's "Motion to Strike Documents 23 through 26" (doc. no. 35) is GRANTED. Memorandum and Order of April 3, 2004 (doc. no. 36) at 1-4.

While the Court expressed reservations at that time about the "viability of Plaintiff's civil rights/section 1983 claim," Defendants did not challenge the legal sufficiency of Plaintiff's civil rights/section 1983 claims in his amended complaint. Now, following discovery and failed mediation attempts, the viability of Plaintiff's civil rights/section 1983 claims is before the Court and is ripe for disposition. After careful consideration of Baldwin Borough Chief of Police Christopher T. Kelly's motion for summary judgment (doc. no. 55) and the motion for summary judgment filed on behalf of the remaining Defendants, Baldwin Borough and six members of its Council (doc. no. 58), the briefs in support and in opposition, the respective statements of material facts, and the summary judgment record that has been adduced, the Court finds that Plaintiff is unable to support his civil rights/section 1983 claims, and will therefore dismiss said claims with prejudice.

Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir.2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence ... through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the Plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view ...


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