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Baranowski v. Waters

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


February 10, 2009

JAMES E. BARANOWSKI, PLAINTIFF,
v.
CAPTAIN ROGER N. WATERS AND JUDGE NORA BARRY FISCHER LIEUTENANT CHARLES L. DEPP, U.S. DISTRICT JUDGE DEFENDANTS.

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

MEMORANDUM OPINION

I. Introduction

This is an action involving a police officer who claims that he was constructively discharged in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 7 and 26 of the Pennsylvania Constitution. Pending before the Court is a motion for summary judgment filed by the Defendants. (Docket No. [10]). For the reasons that follow, that motion will be granted.

II. Background*fn1

On December 24, 2002, Michael Ellerbe ("Ellerbe"), a 12-year old black male, was fatally shot in the back by a member of the Pennsylvania State Police ("PSP"). (CV-05-1379, Docket Nos. 45 & 49, ¶ 11). The shooting allegedly occurred while Ellerbe was attempting to flee from police officers Samuel Nassan ("Nassan") and Juan Curry ("Curry"). ( Id., ¶ 13). At the time of the shooting, Plaintiff Sergeant James Baranowski ("Baranowski"), a member of the PSP, was at the Uniontown State Police Barracks ("Uniontown Barracks"). ( Id., ¶ 14). He arrived at the scene of the shooting shortly after receiving word about what had happened. ( Id., ¶ 15). Because he was the highest ranking officer at the scene, he was considered to be the "incident commander." ( Id. , ¶ 14). In a Homicide Investigation Action Report dated December 27, 2002, Baranowski recorded the version of events described by Nassan and Curry. (CV-05-1379, Docket No. 26-10, pp. 12-17).

After reflecting on what he had observed at the scene of the shooting, Baranowski began to suspect that the incident had not occurred in the manner described by Nassan and Curry. (CV-05-1379, Docket No. 45, ¶ 18). On February 12, 2003, Baranowski was questioned about the matter by a Federal Bureau of Investigation ("FBI") agent. ( Id., ¶ 20). At that time, Defendant Lieutenant Charles L. Depp ("Depp") was the "Troop B" Uniontown Barracks Station Commander. (CV-05-1379, Docket Nos. 45 & 49, ¶ 21). Baranowski contends that he was summoned to Depp's office after speaking with the FBI agent, at which point he relayed to Depp his misgivings about the description of events which had been given by Nassan and Curry. ( Id., ¶ 28). During the relevant period of time, Defendant Captain Roger N. Waters ("Waters") was the Commander of "Troop B," which maintained its headquarters in Washington, Pennsylvania. ( Id. , ¶ 32). One week after his alleged conversation with Depp, Baranowski allegedly told Waters that he had reservations about the manner in which the Ellerbe shooting was being investigated. ( Id., ¶ 38). In a subsequent conversation with Depp, Baranowski was allegedly warned not to perform private investigative work on behalf of Ellerbe's family. ( Id., ¶ 39).

Depp initiated six "Use of Force or Complaint Reception and Processing Worksheets" against Baranowski between March 3, 2003, and March 11, 2003. ( Id., ¶ 40). These disciplinary complaints were based on matters unrelated to the Ellerbe shooting. ( Id. ). A "Pre-Disciplinary Conference" was held on June 30, 2003. (CV-05-1379, Docket No. 45, ¶ 47). On that occasion, Waters sustained four of the complaints which Depp had lodged against Baranowski. (CV-05-1379, Docket No. 26-10, pp. 122-125). Baranowski subsequently learned that his job was in jeopardy. (CV-05-1379, Docket No. 45, ¶ 47). Fearing the loss of his retirement and medical benefits, which would have been forfeited if he had been terminated by the PSP for disciplinary reasons, Baranowski gave the PSP his "notice of retirement" on July 7, 2003. (CV-05-1379, Docket Nos. 45 & 49, ¶¶ 49-50). Shortly thereafter, he was relieved of his duties as a sergeant and placed on desk duty. ( Id., ¶ 51).

On May 23, 2005, Baranowski commenced this action against Waters and Depp in the Court of Common Pleas of Fayette County, Pennsylvania, by filing a praecipe for a writ of summons. (CV-05-1379, Docket No. 38-9, pp. 2-3). Under Pennsylvania Rule of Civil Procedure 1007, the filing of a praecipe constitutes the commencement of a civil action. Shackelford v. Chester County Hospital, 690 A.2d 732, 734 (Pa.Super.Ct. 1997). Instead of proceeding further, however, Baranowski commenced a separate action against Waters and Depp in this Court on September 30, 2005, alleging that he had been constructively discharged in violation of the First and Fourteenth Amendments.*fn2 (CV-05-1379, Docket No. 1). These claims were brought pursuant to 42 U.S.C. § 1983.

In an opinion dated March 18, 2008, the Court granted summary judgment in favor of Waters and Depp. Baranowski v. Waters, Civil Action No. 05-1379, 2008 WL 728366, 2008 U.S. Dist. LEXIS 21301 (W.D.Pa. March 18, 2008). Summary judgment was granted for two different reasons. First, it was determined that the filing of the praecipe in the Court of Common Pleas had not tolled the two-year statute of limitations applicable to Baranowski's subsequent action in this Court, and that the limitations period applicable to that action had already expired.*fn3

Baranowski, 2008 WL 728366, at *4-12, 2008 U.S. Dist. LEXIS 21301, at *10-40. Second, it was determined that even if the Court were to assume arguendo that Baranowski's second action had been commenced in a timely manner, Waters and Depp were nevertheless entitled to summary judgment on the ground that Baranowski could not establish a violation of the First and Fourteenth Amendments.*fn4 Baranowski , 2008 WL 728366, at *13-26, 2008 U.S. Dist. LEXIS 21301, at *40-85.

Baranowski filed a motion for reconsideration on March 27, 2008. (CV-05-1379, Docket No. 63). The record was supplemented with evidence that Waters and Depp had intelligently waived the statute of limitations defense with respect to the issue of tolling. (CV-05-1379, Docket No. 63-2). Baranowski also filed a complaint in the Court of Common Pleas, alleging that he had been constructively discharged in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 7*fn5 and 26*fn6 of the Pennsylvania Constitution. (Docket No. 1-2, pp. 2-5). On April 18, 2008, Waters and Depp removed the case to this Court pursuant to 28 U.S.C. § 1441. (Docket No. 1). This was done while Baranowski's motion for reconsideration in the other case was still pending.

The Court partially granted Baranowski's motion for reconsideration on August 25, 2008, holding that Waters and Depp had intelligently waived their statute of limitations defense with respect to the issue of tolling and vacating the prior decision to the extent that it had relied on the statute of limitations as a basis for granting summary judgment in their favor. Baranowski v. Waters, 2008 WL 4000406, at *4-16, 2008 U.S. Dist. LEXIS 64802, at *10-51 (W.D.Pa. August 25, 2008). Nevertheless, the Court reaffirmed its prior determination that Baranowski could not establish a violation of the First and Fourteenth Amendments. Baranowski, 2008 WL 4000406, at *16-22, 2008 U.S. Dist. LEXIS 64802, at *51-69. Thus, the partial vacatur of the earlier decision did not disturb the Court's ultimate conclusion that Waters and Depp were entitled to summary judgment. Baranowski filed a notice of appeal on September 24, 2008, and the case is currently pending before the United States Court of Appeals for the Third Circuit. (CV-05-1379, Docket No. 73).

The instant case is the one that was originally commenced by the filing of the praecipe in the Court of Common Pleas on May 23, 2005. This case remained dormant until the Court determined that the filing of the praecipe had not tolled the statute of limitations applicable to Baranowski's other action. Baranowski apparently filed the praecipe solely for the purpose of tolling the limitations period, mistakenly believing that he would thereafter be free to commence his subsequent action in this Court more than two years after his constructive discharge. Baranowski, 2008 WL 728366, at *3, 2008 U.S. Dist. LEXIS 21301, at *7. As the Court acknowledged on August 25, 2008, Waters and Depp informally waived their statute of limitations defense in the second action (with respect to the issue of tolling) so that Baranowski would not have to file a complaint in the Court of Common Pleas.*fn7 Baranowski , 2008 WL 4000406, at *4-13, 2008 U.S. Dist. LEXIS 64802, at *10-41. They had expressed their intention to remove the instant action to this Court in any event, and the parties evidently agreed that it would be more expeditious for them to litigate the untimely-filed second action than to engage in the procedural maneuvers necessary to bring this timely-filed action before the Court. Id. It was permissible for the parties to proceed in this manner, since the statute of limitations was an affirmative defense that Waters and Depp were free to waive. Id.

Waters and Depp filed a motion for summary judgment on October 3, 2008, contending that Baranowski's claims were barred by the doctrine of res judicata .*fn8 (Docket No. 10). That motion is the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted "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." Fed. R. Civ. P. 56(c). Pursuant to Federal Rule of Civil Procedure 56(c), the Court must enter summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Twp ., 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the non-moving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party's burden of proof. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories in order to show that there is a genuine issue of material fact for trial. Id. at 324. The non-moving party cannot defeat a well supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

In this case, the issues are presented in a rather straight-forward manner. Because the issue of res judicata, if resolved in favor of Waters and Depp, would render discovery unnecessary, the Court stayed discovery in this case (at the request of Waters and Depp) on the same day that the motion for summary judgment was filed. (Docket Nos. 13 & 14). The issues presently before the Court are essentially legal in nature.

IV. Discussion

Waters and Depp contend that they are entitled to summary judgment on the ground that Baranowski's claims are barred by the doctrine of res judicata . (Docket No. 12, pp. 2-5). As a general matter, res judicata precludes parties to litigation (and their privies) from relitigating matters that have already been resolved by a court of competent jurisdiction. Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548-551 (3d Cir. 2006). This doctrine, which predates the Republic, is firmly embedded within the American legal system.

The Full Faith and Credit Clause of the United States Constitution incorporates the doctrines of res judicata and collateral estoppel as the law of our Union.*fn9 Riley v. New York Trust Co., 315 U.S. 343, 349 (1942). That constitutional provision, however, only limits the prerogatives of "each State." U.S. C ONST., A RT. IV, § 1. By its own terms, the Constitution does not impose the doctrine of res judicata on the Federal Judiciary. Kremer v. Chemical Construction Corp., 456 U.S. 461, 483, n. 24 (1982). Nevertheless, when a judgment is rendered by a state tribunal, federal courts are statutorily bound to accord that judgment res judicata and collateral estoppel effect by virtue of 28 U.S.C. § 1738.*fn10 "This statute has long been understood to encompass the doctrines of res judicata, or 'claim preclusion,' and collateral estoppel, or 'issue preclusion.'"*fn11 San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. 323, 336 (2005). Consequently, a federal court must give a judgment rendered by a state court the same preclusive effect that it would be accorded by another state tribunal. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005). Because the judgment relied upon by Waters and Depp was rendered by this Court (i.e., a federal court) rather than by a state court, § 1738 does not directly require the application of res judicata in this case. Accordingly, the applicability of res judicata in this case is governed by federal common law. Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 506-508 (2001). Of course, the federal common law of res judicata is inevitably shaped by the policy considerations underlying both the Full Faith and Credit Clause and § 1738. University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986)("The Full Faith and Credit Clause is of course not binding on federal courts, but we can certainly look to the policies underlying the Clause in fashioning federal common-law rules of preclusion.").

The federal law of claim preclusion requires a defendant asserting the defense of res judicata to establish that: (1) there has been a final judgment on the merits of a prior suit; (2) the prior suit involved the same parties (or their privies) as the suit in which the defense of res judicata is being asserted; and (3) the suit in which the defense is being asserted is based on the same "cause of action" as the prior suit. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). "The determination of whether two suits are based on the same cause of action turns on the essential similarity of the underlying events giving rise to the various legal claims." General Electric Co. v. Deutz AG, 270 F.3d 144, 158 (3d Cir. 2001). In making such a determination, a court must consider whether the material facts alleged were the same in both actions, and whether the same evidence used to maintain the first action would be used to maintain the second action. United States v. Athlone Industries, Inc., 746 F.2d 977, 984 (3d Cir. 1984). Res judicata "will operate to bar not only identical repetitive suits, but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct," and which the plaintiff had a reasonable opportunity to assert in the initial action. Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa. 1983). A plaintiff is not entitled to maintain a second lawsuit merely because he or she advances a different legal theory than that advanced in the first lawsuit. Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Insurance Guaranty Association , 455 U.S. 691, 710 (1982)("A party cannot escape the requirements of full faith and credit and res judicata by asserting its own failure to raise matters clearly within the scope of a prior proceeding."); Allen v. McCurry, 449 U.S. 90, 94 (1980)("Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.")(emphasis added).

It is clear that this action is based on the same events, allegations and evidence as the other action. All relevant factors point in the direction of a finding that Baranowski's claims are barred by the doctrine of res judicata . Indeed, Baranowski filed his complaint in the Court of Common Pleas only because this Court had held, on March 18, 2008, that his other action had been barred by the statute of limitations. (CV-05-1379, Docket No. 70-2, pp. 29-31). This fact is not disputed by the parties. Therefore, there is no need for an exhaustive, generic analysis as to whether res judicata is applicable. The Court will, however, proceed to address the specific arguments raised by Baranowski in opposition to the pending motion for summary judgment.

Relying on the decision of the United States Court of Appeals for the Ninth Circuit in Zhang v. Dept. of Labor & Immigration, 331 F.3d 1117 (9 th Cir. 2003), Baranowski argues that the Court's dismissal of his other action on statute of limitations grounds renders res judicata inapplicable to the present case. (Docket No. 19, pp. 2-4). In Zhang, the Court of Appeals declared that "[a] dismissal on statute of limitations grounds generally does not bar a subsequent action in a different forum when the limitations period in the second forum is longer than the first, and has not yet expired." Zhang, 331 F.3d at 1118. The Court acknowledges that the reasoning in Zhang would preclude the application of res judicata in this case if the earlier case had been dismissed solely on statute of limitations grounds. Semtek International, Inc. , 531 U.S. at 504 ("With regard to the claim-preclusion issue involved in the present case, for example, the traditional rule is that expiration of the applicable statute of limitations merely bars the remedy and does not extinguish the substantive right, so that dismissal on that ground does not have claim-preclusive effect in other jurisdictions with longer, unexpired limitation periods."). Unfortunately for Baranowski, that is not what happened. The Court granted summary judgment in favor of Waters and Depp on both statute of limitations grounds and First Amendment grounds. Baranowski, 2008 WL 728366, at *4-27, 2008 U.S. Dist. LEXIS 21301, at *10-85. The Court's alternative First Amendment determination, as "the product of careful judicial reasoning," is entitled to the same preclusive effect that it would be accorded if the statute of limitations issue had never come into play. Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 254-255 (3d Cir. 2006). Moreover, the Court's determination with respect to the statute of limitations was vacated on August 25, 2008, leaving the determination concerning the First Amendment as the sole basis for the ultimate conclusion that Waters and Depp were entitled to summary judgment.*fn12 Baranowski, 2008 WL 4000406, at *4-22, 2008 U.S. Dist. LEXIS 64802, at *10-72. The merits-based adjudication of Baranowski's other action distinguishes this case from Zhang . The coincidental presence of a statute of limitations issue in the other action does not provide a basis for refusing to apply the doctrine of res judicata in this case. Baranowski cannot reasonably claim that the application of res judicata in this action is unfair or inequitable. Zhang, 331 F.3d at 1119 ("Additionally, we have recognized that res judicata should not apply to a previous dismissal that was based on the statute of limitations if the effect of the bar would be unfair .")(emphasis added).

Baranowski makes the additional argument that this action is not barred by the doctrine of res judicata because it was originally commenced prior to his other action. (Docket No. 19, pp. 3-4). This argument is without merit. When two concurrent cases are based on the same cause of action, the first case to be adjudicated is entitled to preclusive effect. Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464, 466 (3d Cir. 1950). It makes no difference which action was commenced first. Banks v. County of Allegheny, 568 F.Supp.2d 579, 582-583 (W.D.Pa. 2008). "[F]or purposes of res judicata, the effective date of a final judgment is the date of its rendition, without regard to the date of the commencement of the action in which it is rendered or the action in which it is to be given effect."*fn13 Osiris Enterprises v. Borough of Whitehall, 398 F.Supp.2d 400, 410 (W.D.Pa. 2005). Although this action was commenced before Baranowski's other action, the other action was obviously adjudicated first.*fn14 Consequently, that adjudication is entitled to preclusive effect in this case.

In this action, Baranowski asserts claims that were not asserted in his other action. In addition to the First Amendment claims which parallel those pursued in the other action, Baranowski asserts federal claims based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment and state claims based on the Pennsylvania Constitution. (Docket No. 1-2, ¶¶ 12-15). As noted earlier, however, Baranowski is not entitled to maintain another action merely because he advances new theories of recovery. Seamon, 576 F.Supp. at 1460. The doctrine of res judicata prevents a party from pursuing claims that he or she could have pursued (but did not pursue) in a previously-adjudicated action. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988). Baranowski could have asserted all of his federal constitutional claims in the other action pursuant to § 1983. Moreover, the Court would have had supplemental jurisdiction to entertain his state constitutional claims pursuant to 28 U.S.C. § 1367(a). Because no jurisdictional bar prevented Baranowski from pursuing all of his claims in the other action, the doctrine of res judicata precludes him from asserting such claims in this action.*fn15 Turner, 449 F.3d at 550.

There is one further point which must be made. In determining that Baranowski's claims are barred by the doctrine of res judicata, the Court relies on its merits-based determination of August 25, 2008, to distinguish this case from Zhang . As noted earlier, that determination has been appealed, and the matter is currently pending before the United States Court of Appeals for the Third Circuit. (CV-05-1379, Docket No. 73). If, by some chance, the Court of Appeals rules against Baranowski on statute of limitations grounds without reaching the merits of his claims, the res judicata effects of this Court's merits-based decision may be impugned. Nodland v. Nokota Co., 314 N.W.2d 89, 92 (N.D. 1981)("A finding of the trial court not passed upon by an appellate court because it was unnecessary for the appellate court's decision does not leave that finding res judicata between the parties."). "[T]o consider a party bound in later actions by a trial court's determination which was ignored on appeal is to deprive the party of a statutory right of appeal." Speyer, Inc. v. Goodyear Tire & Rubber Co., 295 A.2d 143, 266-267 (Pa.Super.Ct. 1972). While the possibility may be remote, the Court is not indifferent to Baranowski's danger of "falling between the cracks." Picon v. Morris, 933 F.2d 660, 662 (8 th Cir. 1991).

This hypothetical anomaly, however, does not warrant the denial of the pending motion for summary judgment. Since today's decision is "based on" the Court's earlier decision in Baranowski's other action, Federal Rule of Civil Procedure 60(b)(5) will provide Baranowski with a mechanism to seek relief from today's decision in the unlikely event that the Court of Appeals' resolution of his appeal operates to deprive this Court's earlier decision of its preclusive effect in this case.*fn16 California Medical Association v. Shalala, 207 F.3d 575, 577-578 (9 th Cir. 2000). Should the circumstances change in such a way as to undercut the basis for today's holding, the Court sees no reason why this case could not be reopened.*fn17 Communication Workers of America v. American Telephone & Telegraph Co., 932 F.2d 199, 213 (3d Cir. 1991).

V. Conclusion

For the foregoing reasons, Baranowski's claims are barred by the doctrine of res judicata.

The controversy stemming from Baranowski's constructive discharge has already been fully litigated, and there is no basis for permitting this action to proceed further. Waters and Depp are entitled to summary judgment.

Accordingly, IT IS HEREBY ORDERED that the Defendants' Motion for Summary Judgment ( Docket No. [10] ) is GRANTED . An appropriate Order to follow.


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