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Caryn Pecorella-Fabrizio and andrew Fabrizio v. Christopher Boheim

November 16, 2011


The opinion of the court was delivered by: (Chief Judge Kane)


This suit was initially assigned to the Honorable James Munley. On March 31, 2011, the matter was reassigned to this Court. Presently pending before the Court is Defendants' motion for summary judgment. (Doc. No. 96.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant Defendants' motion.


Plaintiffs Caryn Pecorella-Fabrizio and Andrew Fabrizio were the sole members of Kozy Nozes Dog Grooming & More, LLC ("Kozy Nozes"), a Pennsylvania limited liability company, which operated its business from a store located in Tobyhanna Township, Pennsylvania. (Doc. No. 98 ¶¶ 1, 3; Doc. No. 105 ¶¶ 1, 3.) Ms. Pecorella-Fabrizio managed the daily operations of the Kozy Nozes store, and Mr. Fabrizio usually inspected the store on weekends. (Doc. No. 96-8 at 6; Doc. No. 105 ¶ 28; Doc. No. 106 at 14.) Plaintiffs kept their personal finances separate from those of Kozy Nozes and did not personally own the equipment and inventory inside the store. (Doc. No. 98 ¶¶ 7-9; Doc. No. 96-4 at 10-11; Doc. No. 105 ¶¶ 7-9.)

From June 2007 to December 31, 2007, Kozy Nozes employed Bonnie D'Angelo as an independent contractor. (Doc. No. 98 ¶¶ 18, 20; Doc. No. 105 ¶¶ 18, 20.) Some independent contractors, including Ms. D'Angelo, had keys to the store. (Doc. No. 96-4 at 19; Doc. No. 105-1 at 3.) After terminating Ms. D'Angelo's employment, Ms. Pecorella-Fabrizio contacted Atlantic Central Station ("ACS"), the company that provided the alarm system for the Kozy Nozes store, and instructed ACS to remove Ms. D'Angelo's access codes. (Doc. No. 96-4 at 21.)

On January 3, 2008, at approximately 12:00 p.m., Ms. D'Angelo spoke with Defendant Christopher Boheim, a Pocono Mountain Regional Police Department ("PMRPD") detective, at the PMRPD station. (Doc. No. 96-15 at 4; Doc. No. 98 ¶¶ 24-25; Doc. No. 105 ¶¶ 24-25.) Ms. D'Angelo requested that an officer accompany her to the Kozy Nozes store while she retrieved personal items that she had left there. (Doc. No. 96-4 ¶ 5; Doc. No. 105 ¶ 26.) Ms. D'Angelo showed Defendant Boheim receipts for the items she intended to retrieve.*fn1 (Doc. No. 96 ¶ 28; Doc. No. 105 ¶ 26; Doc. No. 105-2 at 8.) According to Defendant Boheim, Ms. D'Angelo also told him that she and Ms. Pecorella-Fabrizio were business partners. (Doc. No. 96-15 at 4; see also Doc. No. 105-3 at 4.) Defendant Boheim "advised her that [his] role was going to [be to] provide her with a . . . police presence on the scene, should there be a dispute or a problem."*fn2

(Doc. No. 105-2 at 11.)

Following this conversation, Defendant Boheim drove to the Kozy Nozes store and parked his vehicle in a position from which he could view persons entering and leaving the store. (Doc No. 96-15 at 6; Doc. No. 105-2 at 9.) Ms. D'Angelo and her husband drove to the store in their own vehicle. (Doc. No. 96-10 ¶ 9.) After they arrived, Ms. D'Angelo found that the store was closed. (Doc. No. 105 ¶ 23.) Thereafter, she informed Defendant Boheim that she would enter the store by using a key that Ms. Pecorella-Fabrizio had given her. (Doc. No. 96-13 at 5; Doc. No. 98 ¶¶ 31-32; Doc. No. 105 ¶¶ 31-32.) Ms. D'Angelo and her husband then used that key to enter the store and proceeded to remove items from the store, including grooming tables and brushes. (Doc. No. 96-10 ¶ 7; Doc. No. 96-15 at 5; Doc. No. 98 ¶ 33; Doc. No. 105 ¶ 33.) According to Defendant Boheim, Ms. D'Angelo brought the items over to him and showed him her receipts again. (Doc. No. 96-15 at 5.)

At some point after Ms. D'Angelo and her husband entered the store, the store's alarm sounded, and ACS was notified of the alarm activation. (Doc. No. 98 ¶ 34; Doc. No. 100, Ex. J; Doc. No. 105 ¶ 34.) The Monroe County Control Center ("MCCC") contacted Defendant Boheim via radio dispatch to inform him of the activation. (Doc. No. 96-15 at 7.) Defendant Boheim could not recall whether MCCC contacted him after he had left the scene or when he was about to leave the scene, or whether he informed MCCC that he currently was or had just been at the scene with a key holder. (Id.; Doc. No. 105-2 at 3-5.) According to Defendant Boheim, he was not suspicious of the activation because people often "trip alarms accidentally when they're closing a door" or "hit the incorrect key code." (Doc. No. 105-2 at 4-5.) After ACS was informed that an officer was on the scene, it deactivated the alarm remotely and suspended further investigation of the activation. (Doc. No. 105 ¶ 37; Doc. No. 105-1 at 9.)

ACS and Defendant PMRPD were later informed that Ms. D'Angelo was no longer authorized to enter the Kozy Nozes store. (Doc. No. 100, Ex. J.; Doc. No. 105 ¶ 37.) Ms. Pecorella-Fabrizio, after learning of the alarm activation, arrived at the store, where she spoke with two police officers. (Doc. No. 105-1 at 4-5.) Although Ms. D'Angelo and her husband were still in the parking lot, the officers did not permit Ms. Pecorella-Fabrizio to view the property in the D'Angelos' vehicle. (Id. at 5.) Ms. Pecorella-Fabrizio later filed a claim with Allstate Insurance Company ("Allstate") for the items that were allegedly wrongfully taken from the store, and Allstate issued checks to Kozy Nozes in the amounts of $1,000 on January 28, 2008 and $2,645.58 on February 25, 2008. (Doc. No. 96-4 at 27, 31; Doc. Nos. 96-18, 96-19.)

Plaintiffs filed the complaint in this action on February 25, 2008, alleging that Defendant Boheim violated their right to be free from unlawful searches and seizures under the Fourth and Fourteenth Amendments and that Defendant Boheim and Defendant PMRPD violated their right to procedural due process under the Fifth and Fourteenth Amendments. (Doc. No. 1 at 6-10.) Plaintiffs also assert state law claims for negligence, trespass, conversion, and unlawful search and seizure against Defendant Boheim. (Id. at 11.) Further, they allege that Defendant PMRPD is liable on the state law claims for negligence and unlawful search and seizure under the doctrine of respondeat superior. (Id.) On December 15, 2008, Judge Munley dismissed all claims brought against Defendant Boheim in his official capacity as well as Plaintiffs' procedural due process claims brought under the Fifth Amendment.*fn3 (Doc. No. 23 at 5-6.) Defendants filed a motion for summary judgment and statement of uncontested facts on July 12, 2011 (Doc. Nos. 96, 98), and a brief in support on July 21, 2011 (Doc. No. 103). On August 11, 2011, Plaintiffs filed a brief in opposition and statement in opposition to Defendants' statement of uncontested facts. (Doc. Nos. 105, 106.) Defendants filed a reply brief on August 25, 2011. (Doc. No. 109.)


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

The moving party here has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is warranted. Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).


As a threshold matter, Defendants contend that Plaintiffs lack individual standing to sue Defendants because it was Kozy Nozes's store that was searched and property that was taken, and, thus, any constitutional violations were suffered by Kozy Nozes and any injuries to Plaintiffs occurred only because of their relationship with Kozy Nozes. (Doc. No. 103 at 20-23.) It is well settled that corporations may avail themselves of the Fourth Amendment's protections against unlawful searches and seizures. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353 (1977). An individual, however, generally "cannot assert the corporation's Fourth Amendment rights absent a showing that he had an independent privacy interest in the goods seized or the area searched." United States v. Vicknair, 610 F.2d 372, 379 (5th Cir. 1980). "Fourth Amendment standing requires that the individual challenging the search have a reasonable expectation of privacy in the property searched and that he manifest a subjective expectation of privacy in the property searched." United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (citation and internal quotation marks, ellipses, and brackets omitted).

Plaintiffs argue that Ms. Pecorella-Fabrizio had a reasonable expectation of privacy in the Kozy Nozes store because she owned and managed the store. (Doc. No. 106 at 13-15.) Defendants counter that Plaintiffs admitted that they did not personally own any of the property in the store and, therefore, lack standing to sue Defendants in their individual capacities. (Doc. No. 109 at 1-2; see also Doc. No. 98 ¶¶ 9-10; Doc. No. 105 ¶¶ 9-10.) Ms. Pecorella-Fabrizio, however, testified that Ms. D'Angelo took her cash box containing $80.00 from the store. (Doc. No. 105-1 at 5-6.) Although standing is generally a threshold inquiry, in light of the Court's determination below that Defendants are, in any event, entitled to summary judgment on the merits of Plaintiffs' federal law claims, resolution of the standing issue would not affect the ultimate disposition of the case. Accordingly, for purposes of addressing the instant motion, the Court will assume that Plaintiffs have standing to bring this action.*fn4


Defendants seek to exclude a statement made by Sylvia Williams, who is now deceased, to Ms. Pecorella-Fabrizio, indicating that Ms. Williams saw a police officer enter the Kozy Nozes store on January 3, 2008. (Doc. No. 109 at 2-5.) For purposes of summary judgment, the Court may not consider hearsay statements that would not ...

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