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Carl F. Schultz, Jr., Cindy v. Hughesville Borough

December 13, 2010

CARL F. SCHULTZ, JR., CINDY
SCHULTZ, MELISSA SCHULTZ,
AND BEAR & HUNTER, INC., : BIGDOGZ SPORTS BAR, T/D/B/A PLAINTIFFS
v.
HUGHESVILLE BOROUGH,
RICHARD SHEARER,
KURT V. HOCKMAN, AND MICHAEL PALMETER, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a civil rights action filed by plaintiffs Carl F. Shultz, Jr., Cindy Schultz, Melissa Schultz, and Bear and Hunter, Inc., t/d/b/a BigDogz Sports Bar against the Borough of Hughesville ("Hughesville"), former Chief of the Hughesville Bureau of Police Richard Shearer ("Shearer"), former Officer Kurt V. Hockman ("Hockman") and Officer Michael Palmeter ("Palmeter") of the Hughesville Bureau of Police (collectively, the "Officer Defendants"). Presently before the court is a partial motion to dismiss (Doc. 28) filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendants Hughesville Borough and Officer Palmeter. For the reasons that follow, the court will grant the motion in part and deny it in part.

I. BACKGROUND

A. Statement of Facts*fn1

The allegations in the complaint center around two establishments: BigDogz Sports Bar ("BigDogz"), a bar, and Valley Beverage, a wholesale beverage distributor, both located in Wolf Township, Lycoming County, Pennsylvania, on State Route 220 near the northern municipal boundary line of the Borough of Hughesville. (Doc. 18 ¶¶ 11, 20). Plaintiff Melissa Shultz ("Melissa") owns and manages Bear and Hunter, Inc., which, in turn, owns BigDogz. (Id. ¶ 12). Plaintiff Carl Shultz ("Carl"), the father of Melissa, owns Valley Beverage and, in addition, assists Melissa in running BigDogz. (Id. ¶¶ 13, 20). Plaintiff Cindy Shultz ("Cindy") is the spouse of Carl Shultz, however she is not involved in the operation of BigDogz or Valley Beverage.*fn2 (Seeid. ¶ 3).

To enter BigDogz, patrons must utilize a turn lane on State Route 220 and turn onto a private driveway which leads to the privately-owned parking lot of BigDogz. (Id. ¶ 14). To discourage patrons from entering Big Dogz, officers from the Hughesville Bureau of Police purportedly parked their cars in the parking lot of a convenience store located across from BigDogz, conducted traffic stops on State Route 220 in the turn lane leading to BigDogz, and patrolled the private parking lot of BigDogz. (Id. ¶¶ 15-18, 24). According to the amended complaint, the Hughesville Police Department conducted these stops and searches despite the lack of jurisdiction in Wolf Township. (Id. ¶ 19). Plaintiffs also allege that Hughesville Borough Police routinely parked in the lot of Valley Beverage and, on one occasion, blocked the entrance to the distributor. (Id. ¶¶ 20-22).

Under section 1121 of the Hughesville Borough Code, the Mayor "shall direct the time during which, the place where and the manner in which the Chief of Police and police officers shall perform their duties." (Id. ¶¶ 26, 27, 28-29). Plaintiffs aver that on several occasions Carl, and the state representative for Carl and Melissa contacted the Mayor of the Hughesville Borough to complain about the harassing conduct of the Hughesville Police Department. (Id. ¶ 32). The Mayor has acknowledged that "accountability [has been] a foreign concept within the police Department," and "officers and their friends have been resistant to change when he attempted to instill accountability." (Id. ¶¶ 125, 126).*fn3 Thus, the Mayor is aware of the unconstitutional practices of the Hughesville Police Department, but is unable to stop the improper law enforcement conduct. (Id. ¶127).

The crux of plaintiffs' complaint involves a June 6, 2009, traffic stop by Officer Palmeter of a motorcyclist who was attempting to enter the BigDogz parking lot. (Id. ¶ 35). Officer Palmeter activated the lights on his cruiser to initiate the vehicle stop, and subsequently radioed Officer Hockman for backup. (Id.) When Officer Hockman arrived, he too had activated the lights on his police cruiser. (Id. ¶ 36).

Carl Shultz exited BigDogz and asked Officers Hockman and Palmeter how long the traffic stop would be occupying the Route 220 turn lane because it was disrupting ingress into BigDogz. (Id. ¶ 38). This inquiry was apparently video recorded by Officer Hockman. (Id.) Officers Hockman and Palmeter instructed Carl to "back-up," a directive Carl followed, ultimately returning to the establishment. (Id. ¶ 39).

Minutes later, Officer Shearer, then Chief of Police of the Hughesville Borough Police Department, arrived at the scene. (Id. ¶ 40). Officer Hockman informed Shearer that Carl had interfered with the investigation of the traffic stop. (Id. ¶ 41). Officers Hockman and Shearer then decided to record a conversation with Carl Shultz for use in prosecution of criminal charges against him. (Id. ¶¶ 42, 43, 45). Officers Hockman and Shearer pressured Carl to leave the bar and the three allegedly had a conversation that, plaintiffs aver, was recorded in violation of the Wiretapping and Electronic Surveillance Control Act, 18 PA. CONS. STAT. § 5701 et seq. (Doc. 18 ¶ 47).

Plaintiffs also claim that Officers Hockman and Shearer conspired to submit a false report to the Pennsylvania Liquor Control Board ("PLCB") in which they stated that Carl had "interfered with a traffic stop and became belligerent with the police officer," and that Carl ordered the police off the property (Id. ¶¶ 48, 49, 50). Plaintiffs allege that Hockman and Shearer filed the report to induce PLCB investigations of both BigDogz and Valley Beverage. According to the amended complaint, PLCB subsequently pursued multiple investigations of the businesses. (Id. ¶¶ 48, 51).

On June 12, 2009, Officer Shearer filed a criminal complaint and affidavit of probable cause, charging Carl with one count of Obstruction of Law or Other Governmental Function, 18 PA. CONS. STAT. § 5101, and one count of Disorderly Conduct, 18 PA. CONS. STAT. § 5503. (Doc. 18 ¶ 54; id. Ex. A). The charges were based upon Carl's alleged conduct during the June 6th traffic stop of the motorcyclist. In the affidavit of probable cause Officer Shearer stated that Carl interfered with the officers' investigation by attempting to force Officers Palmeter and Hockman to move their vehicles. (Id. ¶¶ 57, 58; id. Ex. A, Doc. 18-2). As a result of Carl's conduct, Officer Shearer asserted that Officer Palmeter was compelled to turn his back on a suspect armed with a switchblade. (Id. ¶ 59; id. Ex. A). Plaintiffs allege that these charges were based on facts which the officers knew were false. (Id. ¶¶ 55, 61).

On June 12, 2009, a Magisterial District Judge issued a Fingerprint Order directing Carl to report to the Hughesville Police Department no later then June 30, 2009. (Id. ¶ 63; id. Ex. B). When Carl arrived on June 30, 2009, Officer Hockman purportedly accused him of providing a false social security number, resulting in a delay in the fingerprinting process. (Id. ¶¶ 64, 65). Plaintiffs allege that subsequent to the fingerprinting, Officers Hockman and Shearer conspired to contact the Williamsport Sun-Gazette to "encourage" the newspaper to print a false article about Carl and BigDogz. (Id. ¶ 67; id. Ex. C). On July 2, 2009, the Sun-Gazette printed an article that described two separate incidents at BigDogz.*fn4 The article also noted that Carl was facing charges for obstructing the administration of law and disorderly conduct. (Id. Ex. C).

On September 17, 2009, a preliminary hearing on the charges brought against Carl was held before Magisterial District Justice C. Roger McRae ("Justice McRae"). (Id. ¶ 73). Officer Hockman, Melissa, and the attorney representing Carl all recorded the preliminary hearing. (Id. ¶¶ 78, 79). During the hearing, the Officer Defendants claimed that the acts of Melissa and Carl's attorney in tape-recording the hearing violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 PA. CONS. STAT. § 5701 et seq. (Doc. 18 ¶ 80). According to the amended complaint, Officers Hockman and Shearer urged the Lycoming County District Attorney to press charges against Carl's attorney and Melissa, but no such charges were ever brought. (Id. ¶¶ 81, 83). Plaintiffs allege that these efforts were acts of additional retaliation by Officers Hockman and Shearer. (Id.)

On November 12, 2009, Carl filed a Petition for Habeas Corpus, requesting that the criminal charges against him be dismissed. (Id. ¶ 97). Prior to the commencement of the hearing, scheduled for January 7, 2010, the Lycoming County District Attorney's Office reviewed the video recording from the evening of June 6, 2009. (Id. ¶¶ 98, 99). On January 11, 2010, the Lycoming County District Attorney's Office dismissed the charges for unknown reasons. (Id. ¶ 100). Plaintiffs allege that the harassing conduct of Hughesville police has continued to this date. (Id. ¶¶ 103-108).

B. Procedural History

On February 3, 2010, plaintiffs filed a complaint in this court pursuant to 42 U.S.C. § 1983. (See Doc. 1). Plaintiffs filed an amended complaint on May 5, 2010, alleging First, Fourth, and Fourteenth Amendment claims under the federal Constitution as well as various state law claims for malicious prosecution, intentional infliction of emotional distress, defamation, invasion of privacy, and violation of the Wiretapping and Electronic Surveillance Control Act, 18 PA. CONS. STAT. § 5701 et seq. (Doc. 18). As a direct and proximate cause of the defendants' actions, Carl and Melissa claim to have suffered "humiliation, emotional distress, psychological injury, injury to reputation, and monetary loss." (Id. ¶¶ 109, 111). Cindy claims she "has been deprived of the services, society and comfort" of Carl. (Id. ¶ 110). Finally, plaintiffs allege that BigDogz has suffered from injury to reputation and monetary loss. (Id. ¶ 112). On June 18, 2010, Officer Palmeter and Hughesville Borough filed a motion to dismiss. (See Doc. 28). The motion has been fully briefed and is now ripe for disposition.

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to ...


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