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Carol K. Zlomsowitch, As Administrator of the Estate of Walter J. Zlomsowitch v. East Penn Township

May 3, 2012


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before the Court is the Defendants' Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). As Plaintiff properly stated claims for individual and municipal liability under 42 U.S.C. § 1983, and it is premature to determine the issue of qualified immunity, the motion will be denied in part. But because Plaintiff failed to allege all the elements of a Pennsylvania malicious prosecution claim, the motion will be granted in part. Further, Plaintiff's abuse of process claim will be dismissed based on Plaintiff's request.

I. Background

The facts as alleged in the complaint are as follows: Walter Zlomsowitch, now deceased, was a regular attendee of public meetings in the Defendant municipality of East Penn Township, Pennsylvania. At many of the meetings in early 2010, Mr. Zlomsowitch spoke out against the forfeiture of a $62,000 grant to pave a local street, Eidem Road, with blacktop. Eidem Road adjoins the property of Defendant Herb Truhe, the Chairman of the East Penn Township Board of Supervisors and the Police Administrator and Liaison Supervisor of the East Penn Township Police Department.

On about February 1, 2011, Mr. Zlomsowitch attended a public meeting at the East Penn Social Hall. Mr. Truhe had brought police officers to the meeting in order to create an atmosphere where people were afraid to speak out. Approximately eleven minutes into the meeting, Mr. Truhe took the floor and addressed Mr. Zlomsowitch. Mr. Zlomsowitch attempted to respond, and Mr. Truhe said, "I'm talking." "Go ahead," responded Mr. Zlomsowitch. Mr. Truhe then stated, "You're going to listen to me." Again, Mr. Zlomsowitch replied, "Go ahead." Mr. Truhe then spoke for a minute or so about the lack of funds in east Penn Township.

Mr. Zlomsowitch began to respond to Mr. Truhe's statements, but Mr. Truhe stated, "I'm talking. I got the floor. I got the floor. Walter, quiet. Officer, could you remove this man from the meeting please? Take him out of here, please." Mr. Zlomsowitch then said, "You've got to be kidding me." Mr. Truhe responded, "I'm not kidding, Walter. You don't want to hear the truth; all you do is put us down." Mr. Zlomsowitch spoke again, criticizing the forfeiture of the Eidem Road grant. Mr. Truhe said, "Walter, that's it, out."

At that point, Defendant Alvin Beishline, Jr., a sergeant with the East Penn Police Department, escorted Mr. Zlomsowitch from the room. Mr. Zlomsowitch did not resist, and Sergeant Beishline apologized to him for having to eject him.

Although there was no legal basis for it, Mr. Truhe ordered Sergeant Beishline to file a criminal charge against Mr. Zlomsowitch. On about February 4, 2010, Mr. Zlomsowitch received a citation by certified mail charging him with disorderly conduct pursuant to 18 P.S. § 5503(a)(1) based on his conduct at the meeting. A conviction under that statute carries a penalty of up to ninety days incarceration and a $300 fine. None of the factual allegations in the citation constituted disorderly conduct.

Mr. Zlomsowitch pled not guilty and hired a lawyer to represent him. At his hearing on April 1, 2010, the magistrate found him guilty. Mr. Zlomsowitch appealed the verdict, but five days before his scheduled court date in October 2010, the Commonwealth of Pennsylvania withdrew the charges against him. Mr. Zlomsowitch died on November 30, 2010, after spending the last few months of his life fighting the charges.

Plaintiff Carol Zlomsowitch, the widow of Mr. Zlomsowitch and the administrator of his estate, filed a complaint against the Defendants on November 14, 2011. The complaint contains four counts: (1) a 42 U.S.C. § 1983 claim against the individual Defendants, alleging violations of Mr. Zlomsowitch's First Amendment rights; (2) a malicious prosecution claim against all Defendants; (3) a § 1983 claim against Defendant East Penn Township, alleging that the Township's policies and/or customs facilitated the violation of Mr. Zlomsowitch's First Amendment rights; and (4) an abuse of process claim against all Defendants. Ms. Zlomsowitch seeks compensatory and punitive damages, as well as attorneys' fees. Defendants moved to dismiss on February 6, 2012. The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The pleading standard of Federal Rule of Civil Procedure 8 does not require "detailed factual allegations," but "[a] pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129

S. Ct. 1937, 1959 (2009) (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." ...

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