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Jaslar v. Zavada

January 12, 2009


The opinion of the court was delivered by: Judge Vanaskie


Plaintiffs David Jaslar and Jason Fierman have brought this action to recover damages under 42 U.S.C. § 1983 and the common law of Pennsylvania, claiming that they were falsely arrested and maliciously prosecuted on arson charges.*fn1 The Defendants are David Lupas, former District Attorney of Luzerne County, who purportedly participated in the investigation and approved the charges brought against Plaintiffs; Robert Zavada, a detective with the Wilkes-Barre Police Department who participated in the investigation and the preparation of the affidavit of probable cause used to procure a warrant for the arrest of Plaintiffs and the filing of criminal charges; and Bernard Kizis, a Pennsylvania State Police Trooper, who also participated in the investigation and the preparation of the probable cause affidavit. Defendants have moved separately for summary judgment, and the Magistrate Judge to whom this matter had been referred for pretrial management purposes has recommended that summary judgment be granted in favor of Defendants on Plaintiffs' civil rights claims and that the Court decline to exercise supplemental jurisdiction over the state common law claims. Plaintiffs have objected to the Magistrate Judge's Report and Recommendation.

Having carefully reviewed the record de novo, I have concluded that there are genuine disputes of fact material to the question of whether Defendants Zavada and Kizis deliberately, or with reckless disregard for the truth, made false statements and omitted pertinent facts in their probable cause affidavit, thus requiring denial of their summary judgment motions. As to Defendant Lupas, however, I find that there is no evidence that he was involved in the fabrication of false statements during the course of the investigation, and that his conduct in approving the filing of charges against Plaintiffs is protected under the doctrine of absolute immunity afforded prosecutors. I also find that he is immune from suit with respect to Plaintiffs' common law claims under the Pennsylvania doctrine of "high official" immunity. Accordingly, summary judgment in favor of Defendant Lupas is warranted.


Plaintiffs entered into a partnership for the purpose of opening a business to be known as Double J's Grill and Deli. In March of 1999, they executed a lease with Virgil and Victoria Argenta, owners of a building located at 458-460 North Main Street, Wilkes-Barre, Pennsylvania, for the purpose of opening Double J's Grill and Deli. The lease required Plaintiffs to pay $1,500 per month as rent and $200 per month as a "realty tax contribution."

Plaintiffs procured a loan in the amount of $22,500 through the Small Business Administration ("SBA") to make the necessary renovations to the leased premises and to open the restaurant/deli. As part of the loan terms, Plaintiffs obtained fire insurance for the proposed business in the amount of $15,000, apparently the minimum amount of insurance that SBA regulations required Plaintiffs to have in place.

The Argentas had also procured insurance on the premises. Although having purchased the property for $25,000 about one year before the fire, the property was insured by the Argentas for more than $600,000 at the time of the fire. This policy had been procured through A.J. Lupas Insurance, the owners of which are related to Defendant Lupas.

On June 8, 1999, the building at 458-460 North Main Street was destroyed by fire. Defendants Zavada and Kizis were assigned to investigate the cause and origin of the conflagration. Defendant Lupas delegated to Assistant District Attorney Tim Doherty the responsibility of supervising the investigation.

The investigating law enforcement officers determined that the fire had been set deliberately. In particular, they found that there were several points of origin of the fire and that a flammable liquid spread throughout the rear part of the building had been ignited intentionally in an attempt to destroy the building.

On May 14, 2004, nearly five years after the fire and less than one month before the applicable statute of limitations on criminal charges would expire, Defendants Zavada and Kizis executed affidavits of probable cause in support of a criminal complaint and applications for warrants for the arrest of Plaintiffs on charges of arson, criminal mischief, causing or risking a catastrophe, and criminal conspiracy. Plaintiffs were not taken into custody, however. Instead they voluntarily appeared before a District Magistrate for a preliminary arraignment. They were released on an unsecured bail bond of $20,000.

A preliminary hearing on the charges was held on July 1, 2004. The District Magistrate bound over to the Court of Common Pleas the charges against Plaintiff Jaslar, but dismissed the charges against Plaintiff Fierman. Jaslar thereafter challenged the sufficiency of the evidence by way of a habeas corpus petition, which was granted by the Court of Common Please of Luzerne County on or about May 11, 2005.

Plaintiffs commenced this action on October 7, 2005. They contend that the affidavits of probable cause included materially false statements and deliberately omitted exculpatory information. They assert that had the material false statements been excised and the exculpatory information included a District Magistrate would not have found probable cause to warrant the issuance of the criminal complaints and the arrest warrants.

They contend that the District Attorney acted improperly in supervising the investigation that culminated in their prosecution. Plaintiffs further claim that then-District Attorney Lupas was pressured into filing charges against them because the insurance policy issued to the Argentas provided that, in the event of arson, benefits under the policy were payable only if criminal charges were brought against someone other than the Argentas.

Following the completion of discovery, each of the Defendants moved separately for summary judgment. All Defendants argued that the evidence adduced by Plaintiffs failed to show that there was an absence of probable cause to arrest and prosecute the Plaintiffs, and that Plaintiffs could not show, in any event, that Defendants acted with the requisite culpable state of mind in pursuing the arrest and prosecution. Defendant Lupas also raised the defense of absolute immunity with respect to the civil rights claims pursued against him as well as the defense of high official immunity with respect to Plaintiffs' Pennsylvania common law claims.

The Magistrate Judge to whom this matter had been referred for pretrial management agreed with the Defendants that the evidence could not show an absence of probable cause for the charges. He also found the evidence insufficient to show that the Defendants acted with knowledge of falsity of certain statements and with deliberate or reckless disregard for the truthfulness and completeness of the probable cause affidavit. The Magistrate Judge further found that the civil rights claims asserted against Defendant Lupas were barred by the absolute immunity afforded prosecutors acting in a prosecutorial capacity. Recommending that this Court decline to exercise jurisdiction over the pendant state law claims, the Magistrate Judge did not address the issue of high official immunity asserted by Defendant Lupas.

Plaintiffs timely filed objections to the Report and Recommendation. Following briefing on the objections, oral argument was conducted.


A. Probable Cause and Culpable State of Mind

A key issue central to both the § 1983 false arrest and § 1983 malicious prosecution claims asserted by Plaintiffs is whether the Defendants acted without probable cause to accuse the Plaintiffs of deliberately setting the fire that destroyed the Argentas' building.*fn2

"[P]robable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been . . . committed by the person to be arrested." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). "Generally 'the question of probable cause in a § 1983 damage suit is one for the jury, '. . . particularly . . . where the probable cause determination rests on credibility conflicts.'" Merkle v. Upper Dublin School District, 211, F.3d 782, 788 (3d Cir. 2000). A district court, however, may find the existence of probable cause as a matter of law "'if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding' . . . ." Id. at 788-89.

In this case, Defendants sought the imprimatur of a judicial officer by applying for arrest warrants supported by affidavits of probable cause. The issuance of an arrest warrant by a District Magistrate, of course, "does not, in itself, shelter an officer from liability for false arrest." Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000). Where, as here, a party seeks recovery of damages under §1983 for an allegedly false arrest made pursuant to a warrant, that party must show "(1) that the police officer 'knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;' and (2) that 'such statements or omissions are material, or necessary, to the finding of probable cause.'" Id. at 786-87. In the context of a case such as this one, the materiality of the alleged misstatements and purported omissions is determined by excising from the probable cause affidavit the alleged "offending inaccuracies and insert[ing] the facts recklessly omitted, and then determin[ing] whether or not the 'corrected' warrant affidavit would establish probable cause." Id. at 789.

In this case, the Magistrate Judge confined the analysis of the probable cause issue to those alleged misrepresentations and omissions specifically pled in Plaintiffs' Complaint, thus ignoring other alleged misrepresentations and omissions claimed to have been learned by Plaintiffs during discovery. The Magistrate Judge restricted the analysis to the pled misstatements and omissions after concluding that, by failing to respond to Defendant Zavada's Request for Admissions, ...

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