The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Borough of Ephrata's Motion to Dismiss Plaintiffs' Complaint (ECF No. 4), and Defendants Police Officers Bright, O'Hanlon and Martin's Motion to Dismiss the Complaint (ECF No. 32). For the following reasons, the Borough of Ephrata's Motion to Dismiss will be granted, and the Police Officers' Motion to Dismiss will be granted in part and denied in part.
This action arises out of the repossession of a boat. Plaintiff Nicholas Reinhart ("Reinhart") is the sole member of Plaintiff Sunset Express Ltd. ("Sunset"). Sunset owns a boat, identified as a 2002 Black Thunder 43 Express, with two 2002 Mercruiser 500HP Gas Motors (the "Boat"). On September 12, 2003, Sunset and Reinhart entered into a Fixed Rate Promissory Note and Security Agreement (the "Note") with National City Bank, predecessor to Defendant PNC Bank, NA ("PNC"). (Note, PNC Ans. ¶ 13 & Ex. A, ECF No. 2.) As collateral for the Note, Sunset executed a Preferred Ship Mortgage ("Mortgage") dated September 12, 2003 and granted PNC a security interest in the Boat. (Mortgage, PNC Ans. Ex. B.)
PNC alleges that on or about January 2010 and at certain times thereafter, Reinhart and Sunset failed to make monthly payments of the correct sum when due under the terms of the Note. (PNC's Counterclaims ¶ 79, ECF No. 2.) Believing that Reinhart and Sunset had defaulted on the Note and Mortgage, PNC exercised its right to repossession of the Boat.
On October 15, 2010, PNC, through its repossession agent, National Liquidators, appeared at Plaintiffs' place of business to repossess the Boat. (Am. Compl. ¶ 13, ECF No. 33.) Reinhart's son, Plaintiff Nicholas Reinhart III ("Reinhart III") was present at Plaintiffs' business at the time National Liquidators showed up to repossess the Boat. (Id. at ¶ 15.) Reinhart III asked National Liquidators to leave the premises four times but National Liquidators did not leave. (Id.) The Boat was behind closed doors. (Id. at ¶16.) Reinhart III physically stood in front of the doors in order to prevent National Liquidators from gaining access to the Boat. (Id.) Because Reinhart III was physically blocking access to the Boat, National Liquidators called the Ephrata Police Department for assistance. (Id. at ¶ 17.) Defendants Borough of Ephrata Police Officers Paula Bright, Sean O'Hanlon and Scott Martin (collectively, "Police Officers") arrived at the scene. (Id. at ¶ 18.) The Police Officers arrived in marked police vehicles, were armed, and were in full police uniform. (Id. at ¶¶ 19-21.) At least one of the police vehicles had its emergency lights activated. (Id. at ¶ 22.)
Plaintiffs allege that the Police Officers ordered Reinhart III to move away from the doors. (Id. at ¶ 23.) Reinhart III felt compelled to comply and removed himself from the access point to the Boat. (Id. at ¶¶ 24-25.) Plaintiffs further allege that "Officer Bright then pushed the first door out of [Reinhart III's] hands and began touching and punching the keypad(s) to activate the entrance doors to Plaintiff's business until she found a button that opened a back door." (Id. at ¶ 26.) One of the Police Officers said to Reinhart III, "I hope I don't get in trouble." (Id. at ¶ 27.)
After opening the doors, National Liquidators repossessed the Boat and the trailer on which the Boat was situated. (Id. at ¶¶ 30-31.)
On November 1, 2010, Plaintiffs filed a Complaint in the Lancaster County Court of Common Pleas. (Compl., Not. of Removal Ex. A, ECF No. 1.) The Complaint named as Defendants PNC, the Borough of Ephrata, and Ephrata Police Officers, John Doe Numbers 1, 2 and 3. (Id.) The Complaint asserts the following claims: replevin against PNC (Count I); a request for a preliminary injunction against PNC (Count II); conversion against PNC (Count III); trespass against PNC (Count IV); breach of peace against PNC (Count V); two civil rights claims under 42 U.S.C. § 1983 against the individual John Doe Police Officers (Counts VI and VII); and a civil rights claim under 42 U.S.C. § 1983 against the Borough of Ephrata (Count VIII). (Id.)
On the day that they filed their Complaint, Plaintiffs also filed an Emergency Motion for Preliminary Injunction which sought to enjoin PNC from selling the Boat. (PNC Mot. Relief Prelim. Inj. Ex. B, ECF No. 20.) On November 1, 2010, the Honorable Margaret C. Miller issued a Preliminary Injunction, which stated that PNC "shall not sell, lease, rent, or otherwise dispose of the boat until final resolution of the underlying case." (Id.) The Borough of Ephrata filed a Notice of Removal to this Court on December 20, 2010. (Not. of Removal.) On December 30, 2010, PNC filed a Third Party Complaint against National Liquidators, asserting a breach of contract claim. (ECF No. 5.)
On December 27, 2010, the Borough of Ephrata filed a Motion to Dismiss (Borough Mot., ECF No. 4) and accompanying Memorandum of Law (Borough Mem., ECF No. 4). On January 21, 2011, Plaintiffs filed a Brief in Opposition to the Borough of Ephrata's Motion to Dismiss.
(Pl.s' Opp. to Borough Mot., ECF No. 9.) On February 9, 2011, the Borough of Ephrata filed a Reply to Plaintiff's Opposition. (Borough Reply, ECF No. 16.)
On January 6, 2012, Plaintiffs filed an Amended Complaint. (Am. Compl.) The Amended Complaint names as Defendants the individual Police Officers, Bright, O'Hanlon and Martin. (Id.) Plaintiffs advise that all Defendants agreed to the filing of the Amended Complaint. (Am. Compl. n.1.)*fn1 Also on January 6, 2012, Defendants Police Officers Bright, O'Hanlon and Martin filed their Motion to Dismiss the Amended Complaint (Officers' Mot., ECF No. 32), along with an accompanying Memorandum of Law (Officers' Mem., ECF No. 32). On February 17, ...