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Soberick v. Borough of Lansford

September 15, 2008

JACK SOBERICK, PLAINTIFF,
v.
BOROUGH OF LANSFORD, JAMES STRAUSS, MAYOR GEORGE KRAJNAK, POLICE OFFICER JEREMY SOMMERS, ROBERT GAUGHAN, RICHARD GIANTESANO, : CHARLES REPINEC, MARGARET HOROWSKI, BARRY MORAN, AND JOSEPH NIHEN, DEFENDANTS



The opinion of the court was delivered by: James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court is Defendant Barry Moran's motion for summary judgment (Doc. 82). Having been fully briefed and argued, the case is ripe for disposition. Background

This case arises from plaintiff's employment as a police officer for the Borough of Lansford. He has been employed as a full-time officer since 1996, and had worked as a part-time officer from 1986 until that time. (Defendant's Statement of Material Facts as to Which There is No Genuine Issue to Be Tried (Doc. 89) (hereinafter "Defendant's Statement") at ¶ 2). On the night of June 29-30, 2001, James Zurn, who worked for the CNS railroad in Jim Thorpe, Pa, was stopped at a DUI checkpoint at the border of the Borough of Lansford and the Borough of Coaldale. (Id. at ¶¶ 4, 11). Zurn had been drinking, and police later concluded that his blood alcohol had exceeded the legal limit. (Id. at ¶ 11). Police nevertheless allowed Zurn to drive home from the scene. (Id.). The parties dispute plaintiff's exact role at the checkpoint. He was the ranking police officer on duty that night, and defendant claims Soberick was at the checkpoint when the incident occurred. (Id.). Plaintiff contends that he was on duty as a general supervisor and not specifically assigned to the checkpoint. (Plaintiff's Answer to Defendant Barry Moran's Statement of Material Facts as to Which There is no Genuine Issue to be Tried (Doc. 89) (hereinafter "Plaintiff's Statement) at ¶ 11).

Sometime after he was released, Zurn gave Jeffrey Wainright, another officer on the scene $3,500 in cash. (Defendant's Statement at ¶ 11). The parties dispute whether plaintiff was present at this cash hand-over. (Plaintiff's Statement at ¶ 11). The money was supposedly to be used to buy weapons for the police department. (Defendant's Statement at ¶ 11). That money was deposited in the Borough's general fund account, but eventually returned to Zurn when Borough officials concluded that the money was a bribe. (Id.).

Defendant Barry Moran is a Special Agent with the Pennsylvania Attorney General's Bureau of Criminal Investigation. (Id. at ¶ 5). He has worked there since 1979. (Id.). Moran has been assigned to several offices, but has worked at the Wilkes-Barre Office since 1999. (Id.). Before working for the Commonwealth, Moran worked five years for the FBI. (Id. at ¶ 6). He has a BA in criminal justice from Mansfield University and also has other training in criminal investigation, including training on Fourth Amendment and search warrant procedures. (Id.). During his years as an investigator, Moran has applied for hundreds of arrest and search warrants. (Id. at ¶ 7). Moran testified in his deposition that it is his practice not to rely on investigations of local officials before seeking a warrant. (Id.). Instead, his office conducts the investigations that lead him to seek warrants. (Id.). Plaintiff contends that in this case he relied on an investigation conducted by plaintiff's political enemies in the Borough, who acted out of their animus against him. (Plaintiff's Statement at ¶ 7).

On June 4, 2003, Soberick, Wainright and Zurn were arrested on charges of bribery. (Defendant's Statement at ¶ 8). Wainright and Soberick were also charged with criminal conspiracy. (Id.). District Judge Casimir T. Kosciolek reviewed the affidavit before signing and issuing the arrest warrant. (Id. at ¶ 9). The facts upon which the affidavit of probable cause was based were the result of an investigation that began in the Attorney General's Office in July 2002 and continued until June 2003. (Id. at ¶ 10). Plaintiff contends that the investigation concluded before June 2003, and that plaintiff's arrest came only after several of the defendants in this case picketed the Attorney General's Office. That office took jurisdiction because of a conflict of interest in the Carbon County District Attorney's office. (Id.). Plaintiff contends that the investigation took place in part because political officials in Lansford put pressure on the Attorney General's office to undertake it. (Plaintiff's Statement at ¶ 10). Some of the defendants in the case even picketed that office to urge investigation. (Id.).

According to Agent Moran, the investigation included interviews of more than 20 individuals, including Zurn, Wainright and Soberick. (Defendant's Statement at ¶ 12). Investigators also interviewed other members of the Lansford police force, as well as officers involved in the checkpoint from other jurisdictions. (Id.). They also spoke with George Kraznak, the Lansford mayor, Mary Kruczek, the Borough Secretary, Carbon County District Attorny Gary Dobias and Assistant District Attorney Michael Greek. (Id.). Moran also used numerous documents, including the written statements of plaintiff, in completing his investigation. (Id. at ¶ 14). Moran knew none of the individuals he interviewed before the investigation began. (Id. at ¶ 16). During the investigation, Moran operated under the supervision of a Senior Deputy Attorney General and prepared frequent progress reports for this supervisor. (Id. at ¶ 15). This Deptuy, Anthony Forray, made the recommendation that plaintiff be arrested and charged. (Id.). He reviewed the affidavit of probable cause. (Id.).

Moran submitted an affidavit of probable cause in support of the warrant. (See Attachment A to Defendant's Statement of Facts (Doc. 84-2)). He filed the affidavit on June 2, 2003. (Id.). The affidavit relates the course of Moran's investigation and identifies the persons he interviewed. (Id. at ¶ 3). Moran informed the court of the traffic stop, Zurn's release, his contacts with Wainright and plaintiff, and his payment to the two of $3,500 in cash. (Id. at ¶ 4). Moran related that Jeremy Sommers, an officer on the scene, had told him that plaintiff was present when police stopped Zurn. (Id. at ¶ 6). Sommers recalled that Zurn asked several officers how he could avoid arrest. (Id.). He also heard Soberick and Wainright discussing the need for new weapons for the department, and that they had to wait for lab results before deciding how to deal with Zurn. (Id.). Eventually, however, Soberick allowed Zurn to leave the scene. (Id.). After that event, Sommers reported that he saw Zurn in Lansford several times, attempting to contact Wainwright. (Id.). He saw the two meeting on at least three occasions. (Id.). Wainright later showed Sommers a gas gun, telling him that it had been procured through Zurn. (Id.).

Moran also swore that Zurn told him that after he was stopped he explained to Wainright that he hoped to avoid a DUI arrest because it might affect his ability to operate the railroad. (Id. at ¶ 7). He remembered that either Soberick or Wainright released him on that night. (Id.). Six individuals had their blood tested that night. (Id. at ¶ 10). Five provided blood sufficient for testing. (Id.). Those five all had blood alcohol beyond the legal limit. (Id.). Zurn was the only person not charged with DUI. (Id.). After his release, Zurn had several meetings with Wainright in an attempt to have his charges dropped, and he offered to buy the department material to achieve that end. (Id. at ¶ 7). Eventually, he and Wainright worked out a deal to have Zurn pay $3,500. (Id.). In September 2001, Zurn went to the police department and turned the money over to Wainright and Soberick. (Id.). Soberick took the money, put it in a cash box, and told Wainright to give Soberick what he believed to be his blood test results. (Id.). Eventually, Zurn got his money back. (Id.). Wainright called him and told him the Borough was trying to punish him for taking Zurn's money. (Id.). The affidavit relates reports from various individuals who observed Wainright's actions in obtaining money from Zurn and procuring the gun for the department. (See, e.g., Id. at ¶¶ 6, 8, 9, 11, 12, 13). The affidavit also records Soberick's denials of involvement in any bribery scheme. (Id. at 14).

A district justice dismissed the charges against Soberick on August 14, 2003, after a preliminary hearing. (Defendant's Statement at ¶ 8). After this ruling, plaintiff brought a complaint in the Carbon County Court of Common Pleas. (See Doc. 1). The complaint, brought against Sommers, the police chief, the mayor and various Borough Council Members, as well as Agent Moran, sought relief for violation of plaintiff's free speech, equal protection, and associational rights. The complaint also alleged a conspiracy to violate plaintiff's rights, failure to train and state-law claims of defamation and malicious prosecution. Defendants removed the case to this court on August 6, 2004. After the court granted in part and denied in part defendants' motion to dismiss, the defendants answered the complaint. Discovery ensued, and the court had to intervene several times to coerce the plaintiff into complying with defendants' discovery requests. Finally, however, Defendant Moran filed the instant motion for summary judgment on March 24, 2008. (See Doc. 82). The parties then briefed the motion, bringing the case to its present posture.

Jurisdicion

As the case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action ...


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