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Kim T. Vangerve, et al v. Commonwealth of Pennsylvania

June 14, 2011

KIM T. VANGERVE, ET AL., PLAINTIFFS,
v.
COMMONWEALTH OF PENNSYLVANIA, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Pro se Plaintiffs, Kim T. Vangerve and Anthony Coloruno, have filed a civil rights complaint against numerous Bucks County public entities and private individuals alleging violations of their Fourth and Fourteenth Amendment rights. Plaintiffs' allegations generally stem from criminal charges brought against them regarding the theft of approximately $50,000.00. Both Plaintiffs pled guilty to these charges on October 25, 2010.

Before the Court are the motion to dismiss of Defendants Bucks County Commissioners' Office, Bucks County District Attorney's Office and Thomas DiStefano, a Bucks County Assistant District Attorney (collectively the "Bucks County Defendants"); the motion to dismiss of Defendants Doylestown Township and Christopher Power (collectively the "Doylestown Defendants"); and the supplemental motion to dismiss of the Doylestown Defendants. For the reasons set forth below, the motions will be granted.

I. FACTUAL HISTORY

The facts, taken from Plaintiffs consolidated complaint,*fn1 viewed in the light most favorable to Plaintiffs are as follows.

Between January 2008 and May 2008, Vangerve, who was a volunteer with Life Abundant Prison Ministry, was assigned to conduct one-on-one Bible study with Lynn Titus, an inmate at Bucks County Correctional Facility. (Con. Compl. ¶ ¶ 7, 8.) Titus allegedly had money in a 401k fund, "which she did not wish to disperse to anyone by keeping it in the form of cash." After Titus was released from prison, she convinced Vangerve to open a joint checking account with her at the Citizens Bank in Doylestown, Pennsylvania. This account was opened on June 17, 2008 and Titus deposited $52,993.93 into the account on June 30, 2008. (Con. Compl. ¶ ¶ 9-11.)

On August 12, 2008, Titus met with Defendant Corporal Christopher Power of the Doylestown Township Police Department, and reported that, without her knowledge, Vangerve had withdrawn most of the funds from the joint account by writing checks to her husband, Coloruno, and through ATM withdrawals. (Con. Compl. ¶ 7.) As a result of Power's subsequent investigation, Plaintiffs claim that Power: acted outside of his primary municipal police jurisdiction in disregard for proper venue; conducted an illegal search and seizure of their bank records by acting outside of his jurisdiction; purposely lied in his sworn affidavit of probable cause by claiming Titus was not aware of activity in the joint account; withheld exculpatory evidence; lied and deceived the court by stating that crimes occurred at a specific address in Doylestown, knowing Titus no longer lived in Doylestown at that time; "either created or helped to create or at least overlooked Ms. Titus' ALTERED driver license/ ID card;" obtained information about Plaintiffs' bank accounts over the phone without a warrant; fabricated that Plaintiffs' counsel was representing Coloruno on "several other criminal matters" to deceive the court; deceived the court to obtain the court order for disclosure of Coloruno's Citizens Bank records, claiming he needed the information to identify "additional victims;" and took "racist actions against Vangerve, an Asian female, [making her] go through the finger print process on four separate occasions." (Con. Compl. ¶ ¶ 13-14, 16-17, 29-36.)

Plaintiffs also allege that on October 30, 2009, Assistant District Attorney Thomas DiStefano (ADA DiStefano) filed criminal charges against Plaintiffs "based solely on Cpl. Power's illegal Affidavit of probable cause, illegally obtained records and his (Power) disregards [sic] for the law." (Con. Compl. ¶ 18.)

Vangerve was charged with the theft by unlawful taking, theft by deception, receiving stolen property, theft by failing to make required disposition,conspiracy to receive stolen propertyand criminal conspiracy to engage in receiving stolen property. (Doylestown Defs.' Mem. Ex. A.)*fn2

Coloruno was charged with theft by unlawful taking, theft by deception, receiving stolen property, theft by failing to make required disposition and criminal conspiracy to engage in receiving stolen property. (Doylestown Defs.' Mem. Ex. B.)

A preliminary hearing regarding these charges was held on February 8, 2010. Plaintiffs allege that ADA DiStefano did not have anyone from Citizens Bank to authenticate original documents, and thus, District Judge Mark D. Douple dismissed all charges against Coloruno and one charge against Vangerve. (Con. Compl. ¶ 19.)

On March 5, 2010, ADA DiStefano re-filed the dismissed charges and a second preliminary hearing was held on April 27, 2010. Plaintiffs allege that at the second preliminary hearing, no new evidence was offered. However, Plaintiffs also aver that there was a new witness, a Citizens Bank Fraud investigator, who authenticated Coloruno's bank statement "after a few brief seconds glancing at it," and who testified there was no fraud involved in relation to the bank. Judge Douple held Plaintiffs over for court on all charges. (Con. Compl. ¶ ¶ 20-24.) Plaintiffs claim ADA DiStefano "purposefully withheld the Citizens [B]ank person from the first preliminary hearing in order to rearrest us set us up for the second preliminary hearing" and "violated Pa. R.Crim. P. 544 for rearresting us with the purpose to harras (sic) us and the rearrest resulted in prejudice, i.e. we are being held over for court." (Con. Compl. ¶ ¶ 19, 26.)

Plaintiffs further contend that ADA DiStefano used Power's "various lies and deception to file various petitions and obtain various court orders for disclosure of Plaintiffs' bank records;" failed to provide full discovery in the underlying criminal proceedings in a timely basis; has withheld exculpatory evidence; and has violated various rules of criminal procedure and their constitutional rights. (Con. Compl. ¶ ¶ 39-43.) Plaintiffs request that the Court order the Federal Bureau of Investigation to thoroughly investigate the alleged civil rights violations; provide protection for Plaintiffs when they appear in Bucks County Court of Common Pleas; grant Plaintiffs relief from the "sure retaliation from the entire Bucks County judicial system;" ...


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