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Baranowski v. Waters

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 ...


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