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Moleski v. Ross

July 12, 2010

TIMOTHY JOSEPH MOLESKI PLAINTIFF,
v.
ALAN L. ROSS DEFENDANT.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Introduction

The above-captioned matter arises from Plaintiff Timothy J. Moleski's arrest on November 30, 2006, for theft and related offenses, in violation of Pennsylvania's criminal statutes.*fn1 (Am. Compl. ¶ 2.) On January 11, 2007 and April 5, 2007, a preliminary hearing was conducted before the Honorable Robert F. Burke in the Delaware County Court of Common Pleas, and Plaintiff was held over for trial on all charges. (Doc. No. 19 ¶¶ 22, 27, 29.) On October 22, 2007, the District Attorney made an application, which was granted, for an entry of nolle prosequi in the case of Commonwealth of Pennsylvania v. Moleski, contending that while there was probable cause for the arrest, the State lacked evidence to prove the charges beyond a reasonable doubt. (Doc. No. 19¶¶ 59, 60.) On March 10, 2009, Plaintiff filed suit against Defendant*fn2 alleging false arrest and malicious prosecution, and requesting compensatory and punitive damages. (Am. Compl. ¶¶ 31-34.) In response thereto, Defendant has filed the instant Motion for Summary Judgment and for the reasons set forth hereinbelow, said Motion will be granted.

II. Factual Background

The facts underlying the charges against Plaintiff evolved when on February 3, 2006, the Haverford Township Public Works Department contacted the Haverford Township Police Department to report the theft of two snowplows from the Township Yard. (Doc. No. 19 ¶ 3.) Defendant, Detective Alan L. Ross, was assigned to investigate. (Doc. No. 19 ¶ 45.) The theft was subsequently reported in the local paper on February 17, 2006. (Doc. No. 19¶ 4.) Thereafter, on November 6, 2006, Defendant received information from a first-time confidential informant*fn3 who provided details about the alleged sale of the stolen plows by a Haverford Township employee. (Doc. No. 19¶ 5.) Based upon this tip, Defendant conducted a further investigation, which ultimately led to the identification of two men, Marc Lincoln and Michael Davidson, who had purchased the stolen plows. (Doc. No. 19¶¶ 6, 7.)

Defendant interviewed both men on November 10, 2006, at which time they provided Defendant with written statements. (Doc. No. 19 ¶¶ 7-9.) Lincoln stated that in November 2005*fn4 , he was approached at a bar by a friend, Rich, who asked if Lincoln would be interested in purchasing a snow plow that a friend of his had for sale. (Doc. No. 18-7; Doc. No. 19 ¶ 7). The friend, Richard Barr, also provided a written statement on November 30, 2006, stating that he was approached by "Tim" at the bar who asked if he wanted to buy a snowplow. (Doc. No. 18-10; Doc. No. 19¶ 18.) Barr declined but referred Tim to Lincoln. (Doc. No. 18-10; Doc. No. 19 ¶ 18.) Barr also wrote that he knew Tim from "around" and as an employee of Cycle City*fn5 , but denied any further relationship with Tim or knowledge of the theft or sale of the plows. (Doc. No. 18-10; Doc. No. 19 ¶ 23.)*fn6 Lincoln subsequently received a phone call from Tim, who had the plows. (Doc. No. 18-7,11; Doc. No. 19 ¶ 7.) The following day, Lincoln stated he again spoke by phone with Tim who provided directions to his residence where he had the plows in a green truck in the driveway.*fn7 (Id.)

Lincoln and Davidson ultimately purchased the plows for $1,500 a piece. (Id.) Approximately two months later, Lincoln stated he saw the report about the stolen plows in the newspaper, "got spooked," and dropped the plow off at Mario Lanza Blvd. and 84th Street in the City and County of Philadelphia. (Doc. No. 18-5 ¶4; Doc. No. 19 ¶ 7.) Davidson's written statement corroborates the circumstances of the purchase as provided in Lincoln's statement, except Davidson apparently dropped his plow behind the airport; neither plow was ever recovered. (Doc. No. 18-5 ¶¶5, 7; Doc. No. 18-7; Doc. No. 19 ¶ 9.) In addition, the Affidavit states that Davidson said that he and Lincoln scraped decals off each plow, as well as bar codes from the respective motors. (Doc. No. 18-5 ¶2; Doc. 19 ¶ 9.) Davidson's written statement does not include any information about removing decals or bar codes from the plows, and Barr testified that the plows bore no distinguishing marks. (Doc. No. 18-9; Doc. 20 ¶ 9.)

It has been held that an affidavit may be discounted when it "[c]ontradicts clear testimony previously given by the same witness [and is] used in an attempt to create an issue of fact in response to a motion for summary judgment." Bear Mt. Orchards, Inc. v. Liberty Foods, Inc., 2007 U.S. Dist. LEXIS 96980, at *6 (E.D. Pa. Oct. 9, 2007)(internal quotation and citation omitted). As will be discussed more fully hereinbelow, Barr's statement of January 16, 2010 is of no consequence because the Arrest Warrant was issued upon probable cause, regardless of Richard Barr's statements.

Defendant states that Lincoln and Davidson provided directions to the home from which the plows were purchased, a residence at 621 Cheyney Road in Springfield, Pennsylvania, belonging to Plaintiff. (Doc. No. 18-7; Doc. No. 18-9; Doc. 19 ¶8.) Defendant further states that the witnesses independently verified the location and described the property and the vehicle - the green truck - which was parked in the driveway. (Id.) Davidson testified that he was "pretty sure" the residence on Cheyney St. was where he and Lincoln had purchased the plows. (Prelim. Hr'g. Tr. 43:6-15, April 5, 2007; Doc. No. 19¶ 28.) Plaintiff acknowledges that his truck had once been green, but testified that at the time of the alleged sale his truck was painted white. (Moleski Dep. 62:19.) However, Plaintiff stated his truck was painted white in October 2006, nearly a year after the alleged sale occurred. (Moleski Dep.62:22; 84:20-21.)

On November 29, 2006, Lincoln identified Plaintiff from a photo array as the person who sold him the plows. (Doc. No. 18-8; Doc. 19 ¶ 13.) Davidson was unable to identify Plaintiff from the photo array; this information was not included in the Affidavit of Probable Cause. (Prelim. Hr'g. Tr. 23:19-23, April 5, 2007.) Based on the foregoing, Defendant swore out the Affidavit of Probable Cause on November 30, 2006, which was reviewed by the Honorable Robert R. Burke, and an arrest warrant was issued for Plaintiff. (Doc. No. 18-5; Doc. 19 ¶ 2.) Plaintiff turned himself into the police department the same day. (Moleski Dep. 90:13-16.)

In his Complaint, Plaintiff claims that Defendant: made false or misleading statements in the warrant affidavit; used a confidential informant whose identity was never disclosed, whom the police had no reason to rely on, and whose information led Defendant to question witnesses whose statements were coerced*fn8 ; and that Defendant had a preconceived notion that Plaintiff was the perpetrator. (Am. Compl. ¶¶ 7, 9, 11, 34). Plaintiff further asserts that it was "well known" that Township officials had a vendetta against Plaintiff and his father, and that Defendant misled the court when he stated in the Affidavit that each plow bore an identifying decal with a unique number, and therefore cannot prove that the plows that were stolen were the same ones purchased by the witnesses in this action. (Am. Compl. ¶¶ 6, 21, 33.) However, during his deposition, Plaintiff testified that at least some of the plows did have identifying numbers, as they needed to be attached to specific trucks that also bore corresponding numbers. (Moleski Dep. 41:3-11, 17-25; Doc. 19 ¶ 36.) In addition, Plaintiff testified that he had always had a friendly relationship with Defendant, whom he had played hockey with on a number of occasions, and had never heard that Defendant had any kind of grudge against him. (Moleski Dep. 17:4-21, 18:2-21, 19:2-10; Doc. 19 ¶ 35).

III. Discussion

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A motion for summary judgment will not be defeated merely because there is some factual dispute between parties; only disputed material facts that might affect the outcome of the suit will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248. (1986). "[T]he court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party." Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (internal citations omitted). Instead,

A court should grant summary judgment "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." The Supreme Court has further ruled that a "genuine" issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party," and a factual dispute is "material" when it "might affect the outcome of the suit under the governing law."

In considering a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." In a summary judgment motion, the moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim.

Sentry Select Ins. Co. v. LBL Skysystems (U.S.A.), Inc., 486 F. Supp. 2d 496, 506 (E.D. Pa. 2007)(citations omitted).

In the Motion for Summary Judgment presently before this Court, Defendant contends that no genuine issues as to any material facts exist, which would entitle Plaintiff to relief. Upon review of all documents submitted by both parties, this Court agrees.

a. 42 U.S.C. ...


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