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Pope v. Rostraver Shop and Save

April 16, 2008


The opinion of the court was delivered by: Judge Nora Barry Fischer


This case centers on an accusation of shoplifting against Plaintiff Nicky Pope ("Pope"), occurring on June 5, 2004 at the Rostraver Shop'n Save. As a result of that incident, Pope filed state and federal claims against Rostraver Shop'n Save ("Shop'n Save") and Howard Russell ("Russell") (collectively, "Shop'n Save Defendants") as well as Rostraver Township, Rostraver Township Police Department, and Officer George Milkent,*fn1 ("Milkent") (collectively, "Rostraver Defendants"). Pending before this Court is Shop'n Save Defendants' Motion for Summary Judgment [30], Rostraver Defendants' Motion for Summary Judgment [34] and Pope's Cross-Motion for Summary Judgment [41], all of which are now ripe for disposition.


On June 5, 2004, Pope went to the Rostraver Shop'n Save to purchase some items. Upon entering the store, Pope stopped at the bakery counter and purchased a cup of coffee and a slice of cake to eat while in the store. (Docket No. 30-6 at 11:2-14) (hereinafter, "Pope Dep."). She placed the cake in a Shop'n Save bag in her cart. (Pope Dep. at 11:18-12:2). Pope proceeded to browse through the store, walking through every aisle in order to pick "[j]ust a couple of items."

(Pope Dep. at 13:2-18). While Pope was browsing the store, she drew the attention of the store employees, mainly due to the amount of time she was spending in the store, the few number of items she had purchased, and the open Shop'n Save bag in her cart. (Docket No. 30-7 at 27:5-20) (hereinafter "Russell Dep"). Upon notification by another employee of a "person walking back and forth throughout the store without much in her cart," Howard Russell, the store manager, proceeded to watch Pope as she shopped. (Russell Dep. at 27:5-20). Russell observed that Pope was wearing a long sleeve, unbuttoned flannel shirt over a t-shirt. (Russell 33:9-14). While Pope was walking down one aisle, Russell observed "a motion" from Pope, describing her hand going "underneath and back into the long-sleeve flannel shirt" followed by a "movement made down, possibly into the pants" and thereafter her "arm came back out." (Russell Dep. at 33:15-20). Russell further observed a "protrusion ... from the left area of [Pope's] back, at about the belt area." (Russell Dep. at 33:23-25). Finally, Russell testified that, because of her shirt as well as her movement and "the way she was positioned at the cart," he could not see whether Pope had actually concealed any item. (Russell Dep. at 34:19-21).

Sometime thereafter, Pope proceeded to check out while Russell continued to watch her. (Russell Dep. at 37:19-24). Once Pope finished paying for her items, she began to exit the store and Russell stopped Pope in the vestibule area of the store and asked to see her receipt. (Pope Dep. at 15:18-16:9). Russell verified that her bakery receipt and store receipt matched her goods, including the cake and coffee that Pope bought from the bakery. (Pope Dep. at 15:18-16:9). Russell then asked Pope to lift her outer shirt up to see if she had concealed any items behind her shirt or in her pants, to which Pope refused. (Pope Dep. at 15:18-16:9). The parties do not dispute that Russell never touched Pope, nor did he create any physical barrier to prevent her from exiting the store. (Docket No. 39 at ¶4). During this exchange, Pope became very upset at being accused of shoplifting. Pope told Russell that she was only being stopped because she was black and was going to sue and Russell informed Pope that he was calling the police and for her not to leave. (Pope Dep. at 18:12-21). Pope believed that because the police were called by Russell, she was not free to leave. (Pope Dep. at 80:4-17). Pope and Russell waited approximately five to ten minutes for the police to arrive and during that time Pope made a phone call to her grandmother. (Pope 19:18-20:6). During the wait, Pope neither asked to leave nor made any attempt to leave. Pope testified at her deposition that it was her choice to wait and talk to the police. (Pope Dep. at 73:3-18).

Officer Milkent was dispatched to Shop'n Save on the report of a possible shoplifting. (Docket No. 36 at ¶1). Milkent was on regular duty and in full uniform. (Docket No. 36 at ¶2). Upon his arrival at the Shop'n Save, Milkent observed Russell waiting for him outside the store while Pope was waiting alone in the vestibule area inside the store. (Docket No. 30-8 at 17:24-18:2) (hereinafter "Milkent Dep."). Russell informed Milkent what he had observed and thereafter Pope exited the store and approached Milkent. Milkent stated in his deposition that he told Pope that she could leave anytime she wished and that she was not under arrest. (Milkent Dep. at 27:24-25). Milkent asked Pope if she had anything under her shirt, to which she responded "no." (Docket No. 36 at ¶13). Milkent then asked Pope to lift up her outer shirt and then she could leave, to which she complied. (Milkent Dep. at 27:15-22). Milkent testified that, based upon his observations, he was not able to be sure as to whether or not Pope had a concealed item. (Milkent Dep. at 37:16-24.) When asked why he did not arrest her, Milkent responded that he did not feel comfortable escalating the situation, in particular because of Pope's lack of cooperation. (Milkent Dep. at 39:16-40:2). Pope claims that after she lifted her shirt, Milkent proceeded to poke her two or three times in her pants, which Milkent denies.

(Pope Dep. at 22:18-23:15; Milkent Dep. at 40:3-11). After Pope claims to have been poked, she then was told she could leave. The exchange with Milkent took approximately ten minutes. (Pope Dep. at 25:24-26:11). Pope was never charged with shoplifting or any other criminal charges. In the time since the incident, Pope claims to have suffered from panic attacks and lack of sleep. (Pope Dep. at 33:8-20).


On April 30, 2006, Pope filed a Praecipe for Writ of Summons in the Court of Common Pleas of Westmoreland County, Pennsylvania. Subsequently, Pope filed her Complaint on July 7, 2006, in which she alleged the following: (1) "civil rights violation[s]" pursuant to 42 U.S.C. §1983 against all Defendants; (2) assault and battery against Officer Milkent and the Rostraver Defendants; (3) false imprisonment against all Defendants; (4) and intentional infliction of emotional distress against all Defendants. On July 27, 2006, Defendants removed Pope's Complaint to this Court alleging jurisdiction under 28 U.S.C. §§ 1331 and 1343.

On October 13, 2006, the Shop'n Save Defendants filed a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), which the Court granted on March 9, 2007, dismissing with prejudice all claims against the Shop'n Save Defendants except for false imprisonment.*fn2 See Pope v. Rostraver Shop'n Save, et al., No. 2:06-CV-1009, 2007 WL 776115, at *1 (W.D. Pa. March 9, 2007). Thereafter, the Rostraver Defendants filed their Answer and Affirmative Defenses on January 16, 2007. On July 23, 2007, the Shop'n Save Defendants filed their Answer and Affirmative Defenses. Since that time, the case has proceeded through discovery and the instant summary judgment motions were filed.


Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2007).*fn3 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 movant 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 (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 a genuine issue for trial," Fed.R.Civ.P. 56(e)(2) (2007), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a motion for summary judgment. 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.'" Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255 (1986)); see also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (providing that "a court must take the facts in the light most favorable to the nonmoving party, the [plaintiffs], and draw all reasonable inferences in their favor") (citation omitted)).


The Court will first address the sole remaining claim of false imprisonment against the Shop'n Save Defendants and then address the claims against the Rostraver Defendants.


As an initial matter, the Court has jurisdiction over the false imprisonment claim against the Shop'n Save Defendants by way of 28 U.S.C. §1367 (1988). Section 1367 provides that federal district courts "shall have supplemental jurisdiction over all of the claims that are so related to [federal] claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. §1367(a). Here, the Court finds that the claim of false imprisonment is "so related" to the federal claims against the Rostraver Defendants that they "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 717, 725 (1966). As stated above, the claims against Shop'n Save Defendants and Rostraver Defendants arise out of one singular incident, the accusation of shoplifting against Pope at the Rostraver Shop'n Save on June 5, 2004. In the interests of judicial economy and efficiency, the Court exercises supplemental jurisdiction over the state law claim of false imprisonment against the Shop'n Save Defendants.

In a claim for false imprisonment, the plaintiff seeks to protect his or her interest in the freedom from restraint of movement. Under the law of Pennsylvania, a plaintiff bears the burden of proving that the defendant (1) acted intentionally to confine the plaintiff within boundaries fixed by the defendant; (2) that the act of the defendant either directly or indirectly resulted in said confinement of the plaintiff; and (3) the plaintiff is either conscious of said confinement or is harmed by it. Caswell v. BJ's Wholesale Co., 5 F.Supp.2d 312, 319 (E.D. Pa. 1998); Gagliardi v. Lynn, 285 A.2d 109, 111 (Pa. 1971); see Restatement (Second) of Torts §35 (1965). The Shop'n Save Defendants argue that they are entitled to summary judgment because Pope cannot prove facts sufficient to establish that she was confined by the Shop'n Save Defendants.

In order for there to be a false imprisonment, the confinement must be complete. Caswell, 5 F.Supp.2d at 319. "If a known, safe means of escape, involving only a slight inconvenience exists there is no false imprisonment." Id. (citing Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 541 (E.D.Pa. 1982)). The confinement can be effectuated either through physical means and barriers or through threats or coercion. Chicarelli, 551 F.Supp. at 541. "The fact that a plaintiff merely believes she is not free to leave is not enough to support a claim of false imprisonment. A plaintiff must make some attempt to determine whether her belief that her freedom of movement has been curtailed has basis." Caswell, 5 F.Supp.2d at 319. Said attempt could be made if the plaintiff makes a failed request to leave. Id.

The Shop'n Save Defendants cite Caswell as a example of an unreasonable belief of confinement, arguing that Pope's belief of confinement is equally unreasonable. Caswell involved a plaintiff claiming to have been confined in a back room of the store when the store managers sought to question the plaintiff about incriminating photographs that the plaintiff had developed at the store, evidencing possible child abuse. The managers informed the plaintiff that they were calling the police. The plaintiff spoke to the managers for approximately ten minutes then she left the room to move her car from a no parking zone. At no time during this incident did the managers touch the plaintiff or make any threats towards her. Based upon these facts, the Court held that no reasonable jury could find that the managers falsely imprisoned the plaintiff in that the calling of the police and the standing in the doorway was not enough to create an issue of confinement for the jury. Caswell, 5 F.Supp.2d at 319. Accordingly, the Court held, there could not be any confinement when the plaintiff was able to and did walk out of the room to her car unimpeded by the managers. Id.

In contrast, Pope cites Pinkett v. Super Fresh Food Markets, Inc., Civ. A. No. 87-4573, 1988 WL 30952, at *1 (E.D. Pa. March 28, 1988), in which the plaintiff was in line at a grocery store when an employee came up from behind her, grabbed the plaintiff's arm, demanded that he look in her purse, and accused her of shoplifting. The plaintiff told the employee that she was not going to let him search her purse. The employee responded to the plaintiff that she was not going to leave the store unless he was able to check her bag. Upon the employee's repeated insistence that "you are not going to leave the store until I search your bag," the plaintiff summoned a store security guard and opened her purse for him. The security guard indicated that there were no stolen goods in her purse and the employee relented on searching her purse. The plaintiff was then able to finish checking out and left the store unimpeded. The whole incident took approximately ten minutes. The Court held that the jury's verdict in favor of the plaintiff that there was a false imprisonment was not unreasonable given the repeated threats of the store employee. Id. at *5. "While there was no confinement in the literal sense of physical barriers, the repeated threats of the store employee that 'you are not going to leave the store until I search your bag' could reasonably be construed as constituting confinement by submission to duress or coercion." Id. Further, when combined with the store employee grabbing the plaintiff's arm, the Court concluded that sufficient evidence existed to support the jury's verdict that said threats and touching coerced the plaintiff to give up her freedom of movement--"she must have felt that she could not leave the store until she proved her innocence." Id.

Using Caswell and Pinkett as guideposts for what is a reasonable or unreasonable belief of confinement, respectively, the Court finds that the facts of this case more closely aline with Caswell and that Pope's belief that she was imprisoned is not founded. It is undisputed by the parties that at no time did Russell touch Pope or any of her property. (Pope Dep. at 58:21-24). Hence, it is only what Russell allegedly said to Pope that could possibly constitute a threat to coerce her into being confined within the Shop'n Save:

Q: And describe for me what happened once you left the checkout aisle.

A: As soon as I left the aisle, Howard Russell approached me. He wanted to know what was in the little bag. And I opened the bag up for him. And he asked me if I had a receipt, and I gave him the receipt. So, after that, he looked through the other bags that was paid for, and he looked at the receipt and he matched them.

Then after he seen everything was matched, he wanted to know what I had in my pants, and I told him nothing. So he asked me to lift my shirt up, and I said no. So [Russell] told me if I didn't lift my shirt up, he was going to call the police. So, it took a little while for the police to arrive.

. . . Q: And what was your response [to where he had asked you to lift up your shirt]?

A: I told him no.

Q: And what happened then?

A: He told me he was going to call the police.

Q: And what was your response to that?

A: I said, go ahead. . . .

Q: Did [Russell] say specifically, you cannot leave?

A: Yes, he's going to call the police, he said you cannot leave.

Q: There's a difference there. I know you testified earlier he said he was calling the police?

A: Yes.

Q: And by that you understood you could not leave?

A: Yes.

Q: Did he specifically say, you cannot leave?

A: Yes. (Pope Dep. at 15:18-16:9, 18:16-21, 60:13-23). A plain reading of Pope's deposition indicates that Russell informed her that he was going to call the police and that she cannot leave. However, her deposition further indicates that she never tested whether she could leave or make a request to leave:

Q: ... How was [Russell] refusing to release you?

A: Because he told me he was calling the police, not to leave.

Q: And again, that's your testimony that it was your belief that you could not leave because he was calling the police?

A: Yes. . . .

Q: . . . Did you ask [Russell] why you cannot leave?

A: No.

Q: Did you ever ask him to ...

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