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Pecorella-Fabrizio v. Boheim

December 15, 2008


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

(Judge Munley)


Before the court are defendants' motions to dismiss plaintiffs' complaint (Doc. 8, 10). Having been fully briefed, the matters are ripe for disposition.


This case arises out of a dispute between plaintiffs, who own a pet grooming business, and Bonnie D'Angelo, an independent contractor who formerly worked at their business. (Complaint (hereinafter "Cmplt.") Doc. 1 at ¶¶ 8-9). According to the plaintiffs' complaint, they terminated D'Angelo's employment at Kozy Nozes Pet Grooming & More ("Kozy Nozes") on December 31, 2007 after discovering D'Angelo stealing blank pay stubs. (Id. at ¶ 11). D'Angelo had previously asked plaintiffs to falsify pay stubs to bolster a personal injury claim, a request the plaintiffs rebuffed. (Id.). After terminating D'Angelo's employment, Plaintiff Caryn Pecorella-Fabrizio called the alarm company that provided security for her business to inform them that D'Angelo no longer worked for the store. (Id. at ¶ 12). Pecorella-Fabrizio also directed the company to deactive D'Angelo's security entry code and to change all entry codes at Kozy Nozes.

Plaintiff Pecorella-Fabrizio informed D'Angelo that she should come to Kozy Nozes to pick up her pet grooming equipment when the store was open. (Id. at ¶ 13). On January 3, 2008, during a time when the store was closed, D'Angelo returned to the store. (Id. at ¶ 14). Defendant Christopher Boheim, employed as a police office with the Defendant Mount Pocono Regional Police Department, accompanied D'Angelo to Kozy Nozes. (Id.). Kozy Nozes was closed for business and the premises locked when D'Angelo and Defendant Boheim arrived. (Id.). Neither Pecorella-Fabrizio nor Plaintiff Andrew Fabrizio, co-owner of the store, were present when the two arrived. (Id.).

The burglar alarm at Kozy Nozes went off when D'Angelo attempted to enter the store. (Id. at ¶ 15). The security company called Defendant Mount Pocono Regional Police Department. (Id. at ¶ 16). Defendant Boheim received this call and informed the security company that the Police Department was already on the scene. (Id. at ¶ 17). The security company informed Boheim that D'Angelo had been fired and that if her entry code did not work, she was not allowed to enter the building. (Id. at ¶ 18). When Boheim discovered that D'Angelo's entry code did not allow her access, he told the security company that he would take responsibility for allowing D'Angelo to enter the building. (Id. at ¶¶ 19-20). Boheim then entered Kozy Nozes with D'Angelo and without permission from plaintiffs, the business's owners. (Id. at ¶ 20). Boheim likewise lacked a warrant to search the premises, and lacked the exigent circumstance required to make a warrantless entry. (Id. at ¶¶ 21-23).

Once she entered Kozy Nozes, D'Angelo stole numerous pieces of equipment that were the plaintiffs' property. (Id. at ¶ 24) D'Angelo also took cash from the business. (Id.). Defendant Boheim observed D'Angelo abscond with this property and did nothing to intervene. (Id.). Indeed, Boheim assisted D'Angelo in carrying two dog grooming tables from the property. (Id. at ¶ 25). Plaintiffs contend that D'Angelo stole these tables from them. (Id.). This stolen property limited the amount of business plaintiffs could do, since they could book fewer appointments because they had less space on which to work. (Id. at ¶ 26). Plaintiffs experienced a substantial loss of income as a result. (Id.). Plaintiffs allege that Defendant Boheim "acted willfully deliberately and with conscious disregard for Plaintiffs' constitutional and statutory rights" in assisting D'Angelo in her theft of their property. (Id. at ¶ 27).

On February 25, 2008, plaintiffs filed the instant five-count complaint. Count I, brought pursuant to 42 U.S.C. § 1983, alleges that Defendant Boheim violated plaintiffs' right to be free from unlawful searches and seizures pursuant to the Fourth and Fourteenth Amendments of the United States Constitution. Count II alleges that Defendant Boheim violated plaintiff's rights under the Fifth and Fourteenth Amendments by depriving them of their property without due process of law. Count III accuses Defendant Boheim of denying plaintiffs of their procedural due process rights under the Fourteenth Amendment. In Court IV, plaintiffs allege that Defendant Pocono Mountain Regional Police Department violated their rights by failing to train officers not to make warrantless searches or assist private citizens in committing crimes and circumventing the judicial process, and by failing to discipline police officers who violate rights. Count V raises state law claims for negligence, trespass, conversion and unlawful search and seizure against both defendants. Plaintiffs contend that the Defendant Police Department is liable to them under a respondeat superior theory. As relief, plaintiffs seek compensatory and nominal damages, punitive damages and attorney's fees and costs.

On April 29, 2008, defendants filed the instant motions to dismiss.*fn1 The parties then briefed the motions, bringing the case to its present posture.


As this case is brought pursuant to 42 U.S.C. § 1983, we have 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 within such original jurisdiction that they form part of the same case or controversy under Article II of the United States Constitution.").

Legal Standard

When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in ...

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