The opinion of the court was delivered by: McLaughlin, J.
On June 23, 2010, the Court issued an order requiring that the plaintiff show cause why his claims against seven of the eleven defendants in this matter should not be dismissed. The plaintiff has not responded to the order, and after a review of the merits of the plaintiff's claims, the Court will dismiss them against these seven defendants. The dismissal is with prejudice as to all claims except the plaintiff's claims of abuse of process against six of the defendants, which the Court will dismiss without prejudice and allow the plaintiff to seek to re-plead, if he chooses. If the plaintiff does not choose to re-plead, the case will go forward as to the remaining defendants.
This is a pro se civil rights action brought by plaintiff Gerald Washington over his arrest and prosecution for allegedly stealing $400 worth of construction fencing at gun point. At the time Washington filed this suit, he was incarcerated pending his criminal trial in state court. The charges against him were subsequently dismissed through a nolle prosequi and he has been released from state custody. This case was initially filed in state court and subsequently removed.
The plaintiff named eleven defendants in his complaint. Two of them, Detective Francis Sheridan and the City of Philadelphia, have answered. Two other defendants, District Attorney Lynne Abraham and Assistant District Attorney Gaetano D'Andrea, moved to dismiss the claims against them on grounds of prosecutorial immunity. The Court granted this motion on July 8, 2010. The remaining seven defendants -- Joseph J. O'Neill, Harold Emerson, Dean Clark, Wilson Williams, John Curran, Jesse DeGarmo, and Curran Contracting Inc. (collectively referred to in this memorandum as "the seven defendants at issue") -- have either not yet answered, not yet been served, or both.
On June 8, 2009, the plaintiff filed three motions concerning service of process upon the seven defendants at issue. Defendants Abraham and D'Andrea filed an opposition to these motions, arguing that service should be quashed and the motions denied because the plaintiff had failed to state a claim against any of these defendants. The Court issued an Order on June 23, 2010, requiring the plaintiff to respond to the arguments made by Abraham and D'Andrea and show cause why the claims against the seven defendants at issue should not be dismissed.*fn1 The June 23 Order warned the plaintiff that, if he failed to file a response by July 9, 2010, the Court could dismiss his claims against these defendants. To date, the Court has received no response from the plaintiff.
Although the seven plaintiffs at issue have not moved to dismiss, the validity of the plaintiff's claims against these defendants was placed at issue by defendants Abraham and Gaetano's response to the plaintiff's motions. Through the Court's June 23 Order, the plaintiff has been given notice of the Court's intention to rule on whether the plaintiff has stated a claim against these defendants, as well as an opportunity to respond, of which the plaintiff has not availed himself. Notice and an opportunity to be heard having been given, the Court may dismiss the claims if warranted. Roman v. Jeffes, 904 F.2d 192, 196 (3d Cir. 1990).
Because the plaintiff is proceeding pro se, the Court will not dismiss his claims against the seven defendants solely on the basis that he failed to respond to the June 23 Order to show cause. Instead, the Court will consider the merits of the plaintiff's claims. See Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991).
All of the plaintiff's claims against defendant Joseph J. O'Neill have already been dismissed in state court proceedings prior to the removal of this case. The Hon. Joseph J. O'Neill, is the judge who presided over the criminal proceedings against the plaintiff. Prior to removal, the state court granted Judge O'Neill's preliminary objections on the grounds of absolute judicial immunity. The plaintiff has provided no grounds to reconsider this dismissal and Judge O'Neill shall remain dismissed from this action.
The remaining six of the seven defendants at issue are all private parties. Three of them -- Harold Emerson, Dean Clark, and Wilson Williams -- are complaining witnesses to the defendant's alleged theft. The plaintiff alleges that these defendants made "knowingly false representations to law enforcement and judiciary while acting within scope of employment." Compl. ¶ 61; see also id. at ¶ 51(a)-(h). The other three defendants are the company for whom the complaining witnesses work, Curran Contracting Inc. ("Curran Contracting"), and Curran Contracting's president and owner, John Curran and Jesse DeGarmo, whom the plaintiff contends are liable to him on a vicarious liability theory. Compl. ¶ 62. The plaintiff's claims against these defendants are all based on state law. The plaintiff brings causes of action against these six defendants for abuse of process, fraudulent misrepresentation, willful misconduct, and intentional infliction of emotional distress.
The Court will dismiss with prejudice the plaintiff's claims against these defendants for emotional distress, wrongful conduct and fraudulent misrepresentation because they are barred by Pennsylvania law. Pennsylvania recognizes an absolute privilege for statements made to law enforcement officials for purposes of inducing those officials to bring charges against someone. Pawlowski v. Smorto, 588 A.2d 36, 41, 42 (Pa. Super. Ct. 1991). Although Pawlowski and the cases that it relies upon were decided in the context of libel actions, the Court finds that the same reasoning applies to bar the plaintiff's claims here for intentional infliction of emotional distress, wrongful conduct and fraudulent misrepresentation, all of which are premised on the idea that the defendants should be liable to the plaintiff for damages from the allegedly false accusations made by the complaining witnesses to law enforcement, the prosecution, and the courts.
Pennsylvania courts have found that the public policy in favor of ensuring free and uninhibited access to the justice system outweighs the right of a defamation plaintiff to seek redress for harm from defamatory statements, even when those statements are knowingly, deliberately, and maliciously false. Pawlowski, 588 A.2d at 42. For the same reason, the Court believes that the Pennsylvania courts would extend that absolute privilege here to the plaintiff's claims against the complaining witnesses for fraudulent misrepresentation, willful misconduct, and intentional infliction of emotional distress. See Moses v. McWilliams, 549 A.2d 950, 957 (Pa. Super. Ct. 1988) (noting that "[w]hile it is true that immunity from civil liability in judicial proceedings has been applied most frequently in defamation actions, many courts, including those in Pennsylvania, have extended the immunity from civil liability to other alleged torts when they occur in connection with judicial proceedings.") (collecting cases).
The Court, however, does not find that absolute immunity bars the plaintiff's claims against these defendants for abuse of process. Pennsylvania law, adopting Restatement of Torts (Second) § 653, permits claims of abuse of process against defendants who are alleged to have falsely accused plaintiffs of criminal behavior resulting in arrest and prosecution. Under Pennsylvania law, a private person is subject to liability for malicious prosecution if he or she initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged and if: (a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused.
Hess v. Lancaster County, 514 A.2d 681, 683 (Pa. Cmwlth. Ct. 1986) (citing Rest. (2d) of Torts § 653).
Interpreting these elements, Pennsylvania courts have held that a private party can be found to have "initiated" or "procured" criminal proceedings by providing knowingly false information to the police. Id. To make out a prima facie case, however, a plaintiff must show that the defendant had no reasonable ground to suspect the defendant's guilt and was motivated by malice, meaning that his or her primary purpose in initiating ...