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Kocher v. Larksville Borough

United States District Court, M.D. Pennsylvania

February 20, 2013

Scott E. KOCHER, Plaintiff,
LARKSVILLE BOROUGH, et al., Defendants.

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Cynthia L. Pollick, The Employment Law Firm, Pittston, PA, for Plaintiff.

Christopher P. Gerber, Eric M. Brown, Michael E. Truncellito, Siana Bellwoar McAndrew LLP, Chester Springs, PA, for Defendants.


A. RICHARD CAPUTO, District Judge.

Presently before the Court is Defendants Larksville Borough, Joseph Zawadski, Tony Kopko, and John Pekarovsky's (collectively " Defendants" ) Motion for Summary Judgment. (Doc. 56.) Plaintiff Scott E. Kocher, a former Larksville Borough police officer, claims that he was retaliated against in violation of his First Amendment rights, deprived of a protected

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Fourteenth Amendment liberty interest, defamed, and cast in a false light following a confrontation with the Borough Mayor in August 2010. Because Kocher did not speak as a citizen on a matter of public concern following the confrontation, his First Amendment retaliation claim fails. Furthermore, since Individual Defendants were not personally involved in the publication of any stigmatizing material, and any dissemination was not the result of an act of a Larksville Borough policymaker or pursuant to a Borough policy or custom, the Fourteenth Amendment liberty interest claim also fails. And, because summary judgment will be granted to Defendants on all claims over which the Court has original jurisdiction, supplemental jurisdiction over the remaining state-law claims will be declined to be exercised, and the defamation and false light invasion of privacy claims will be dismissed without prejudice.

I. Background

A. The Parties

Plaintiff Scott E. Kocher (" Kocher" ) was employed as a part-time police officer for Larksville Borough from 2004 through September 2010. (Doc. 57, Defs.' Statement Material Facts, " Defs.' SMF," ¶ 1.; Doc. 75, Pl.'s Answer Statement Material Facts, " Pl.'s SMF," ¶ 1.) Kocher served as a patrol officer when he was terminated in 2010. ( Kocher Dep., 44:9-11.)

Defendant Joseph Zawadski (" Zawadski" ) has been the elected Larksville Borough Mayor since 2010. ( Defs.' SMF, ¶ 2.) Defendant Tony Kopko (" Kopko" ) served as the Larksville Borough Police Chief from 1997 through the Spring of 2012. ( Id. at ¶ 4.) Defendant John Pekarovsky (" Pekarvosky" ) was a member of the Larksville Borough Council at the time of Kocher's discharge from employment. ( Id. at ¶ 3.) [1] Defendant Larksville Borough is a municipal corporation located at 211 East State Street, Larksville, Pennsylvania. ( Id. at ¶ 5.)

B. Larksville Borough Police Department Procedures

In 2010, patrol officers reported to Detective John Edwards (" Edwards" ), Assistant Chief of Police Kofchak, or Kopko. ( Kocher Dep., 44:3-15, Ex. 1.) Kofchak would then report to Kopko. ( Id. at 44:16-18.) Kopko, in turn, would report to the Mayor. ( Id. at 44:19-24.)

The " Larksville Police Department Policies and Operating Procedures" identify certain job functions a Larksville Borough patrolman performs. ( Kocher Dep., Ex. 1.) For example, under the Operating Procedures, a patrolman's duties " include but are not limited to," " answer[ing] all complaints and calls for services," " investigat[ing] crimes, mak[ing] full and detailed reports of the same," and " prepar[ing] neat thorough and concise reports of all police activity." ( Id. ) The duties identified in the Operating Procedures were an accurate representation of Kocher's duties during the time he was employed with Larksville Borough. ( Id. at 19:4-12.) While employed with Larksville Borough, Kocher would prepare police reports after incidents occurred. ( Id. at 20:8-14.) An incident involved anything that happened in front of a police officer that would require a call to Luzerne County 911. ( Id. at 20:16-17.) Kocher would prepare reports for instances of arrests, and he would also prepare reports on occurrences where no arrests were made. ( Id. at 20:18-24.)

In preparing an incident report while employed by Larksville Borough, Kocher would identify the time, date, area, and location of the incident. ( Id. at 26:5-6.)

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The report would also contain a narrative of the incident. ( Id. ) Additionally, Kocher would enter his badge number when completing an incident report. ( Id. at 74:8-10.)

A Larksville Borough Police Department incident report would be prepared through Alert, a computer program used by the Borough. ( Id. at 28:7-12.) Incident reports were generated on computers that were located in the police station. ( Id. at 29:10-30:8.) The reports could only be generated on these computers. ( Id. ) Reports could not be prepared on a laptop computer or an officer's home computer. ( Id. ) To access Alert, the user was required to enter a password, which prevented members of the public from using the Alert system. ( Id. ) After an incident report was completed, it would be printed out and put in a basket for filing with other incident reports. ( Id. at 30:7-13.)

C. The August 13, 2010 Confrontation

On August 13, 2010, Zawadski learned that citizens were parking illegally during a church bazaar. ( Zawadski Tr., 197:4-6.) Kocher, who was on-duty at the time, was called to the bazaar to handle the parking issue around 7:00 p.m. ( Kocher Dep., 68:13-15.) Kocher responded that he was busy handling another call. ( Id. at 69:1-2.) Kocher ultimately arrived at the bazaar at approximately 9:00 p.m. ( Id. at Ex. 5.)

Zawadski testified that he asked to speak with Kocher after he arrived at the bazaar ( Zawadski Tr., 204:8-18.) The two men walked behind an ambulance, at which time Zawadski questioned Kocher as to why it took over an hour to get to the bazaar. ( Id. ) Kocher indicated that he was busy in Plymouth. ( Id. ) Although Zawadski may have pointed his fingers at Kocher, he never made contact with him. ( Id. ) Father Jerry approached Zawadski and Kocher while they were speaking and asked if he could help, but Zawadski responded that it was a personal matter. ( Id. at 205:21-206:7.)

According to Kocher, at approximately 9:02 p.m., officers were dispatched to the bazaar for a fight in the parking lot. ( Kocher Dep., Ex. 5.) As he pulled up to the bazaar, he observed Zawadski performing what looked like a traffic stop. ( Id. ) Kocher proceeded to the area of the fight. ( Id. )

Kocher was standing at the entrance to the bazaar with Michael Thomas, Jeffrey Gibson, Sean Riley, Joseph Yosh, and Susan Stevenson when Zawadski approached and directed Kocher to speak with him. ( Id. ) The two men moved a few feet away. Zawadski, with his finger pointed to Kocher's chest, told Kocher that he was the boss and to follow his orders. ( Id. ) Zawadski also stated to Kocher that charges were going to be brought against him. ( Id. ) During the encounter, Zawadski made physical contact with Kocher. ( Id. at 85:1-2.)

Many bazaar attendees witnessed the encounter. ( Id. at Ex. 5.) Kocher stated that the confrontation escalated to the point that the church priest and Officer Thomas came between Kocher and Zawadski. ( Kocher Dep., 62:21-24.) Everything was broken up, and the encounter ended with Kocher and Zawadski shaking hands. ( Id. at Ex. 5.)

Later, while still at the bazaar, Kocher informed Kopko, who was off-duty at the time, about the confrontation. ( Kocher Dep., 62:24.) Kopko told Kocher that Zawadski should have been arrested. ( Id. at 62:25-63:7) Kopko further instructed Kocher to cover himself. ( Id. at 78:8-9.) Kocher documented the encounter in a written incident report (the " Incident Report" ) based on his conversation with Kopko. ( Id. ) Kocher also prepared the Incident

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Report because he feared that he would be terminated as a result of the confrontation. ( Id. at 62:25-63:7.) After he completed the Incident Report, he printed out two copies. ( Id. at 78:16-79:4.) Kocher kept one copy for himself. The other copy was placed in the basket with the other incident reports. ( Id. ) Zawadski saw the Incident Report after it was placed in the filing basket. ( Zawadski Tr., 193:10-19.)

Kocher also spoke with Edwards about his encounter with Zawadski. ( Kocher Dep., 89:15-91:2.) Like Kopko, Edwards advised Kocher to prepare an incident report. ( Id. at 90:15-19.) Edwards also told Kocher that Zawadski should have been arrested. ( Id. at 90:10.)

The day after the confrontation, Kocher was contacted by Pekarovsky. ( Id. at 91:5-92:23.) Pekarovsky told Kocher that Zawadski is the boss and to follow his orders. ( Id. at 92:6-10.)

D. Events Preceding Kocher's Termination

Following the August 13, 2010 confrontation, a series of events occurred leading to Kocher's discharge.

First, Kopko determined that Kocher inaccurately documented his availability to report to the bazaar on August 13, 2010. Kopko learned about Kocher's encounter with Zawadski on August 13, 2010. ( Kopko Tr., 62:11-64:2.) The next day, Kopko reviewed the Incident Report prepared by Kocher. He believed Kocher acted properly. ( Id. at 63:12-15.) Later, however, Kopko became aware that the Borough's computers were missing times for 911 calls. ( Id. at 64:14-22.) Kopko directed Edwards to gather information relating to the missing calls. ( Id. at 64:3-11.) Kopko reviewed the 911 sheets obtained by Edwards and determined that Kocher's reported times were off. ( Id. at 63:18-20.) Although Kocher's Incident Report reflected that he was busy the entire time when his presence was requested at the bazaar, the 911 sheets showed that Kocher had over an hour of inactivity where he could have reported to the bazaar. ( Id. at 63:20-25.) Based on the difference in the times reported by Kocher and revealed by the call sheets, Kopko decided to investigate if Kocher accurately reported the events from the night of August 13, 2010. ( Id. at 80:14-21.) He determined that Kocher falsified his Incident Report based on the erased 911 calls. ( Id. at 91:7-11.) During the course of this litigation, however, a 911 supervisor testified that an individual could not erase information from the 911 Call Center. ( Adams Dep., 10:1-19.)

Another incident involving Kocher occurred on September 16, 2010. Kocher was at the top of Larksville Mountain when he received a 911 call to report to Petriga's Garage. ( Kocher Dep., 198:6-11.) At the time Kocher received the call, he was speaking to a Jackson Township officer. ( Id. at 200:8-19.) Kocher continued speaking with the officer after the call came. ( Id. at 201:18-21.) The next day, Kopko spoke to Mike Petriga who stated that he waited outside his garage for an officer to come, but no officer ever arrived. ( Kopko Tr., 119:17-20.) Petriga testified, however, that he did not mention the lack of response to his call until two or three weeks later. ( Petriga Dep., 21:13-14.)

The third incident also occurred on September 16, 2010. ( Id. at 97:19-21.) Kopko reviewed a report prepared by Kocher involving a vehicle theft. ( Id. at 97:22.) Kopko spoke with the victim and her father, and he determined that the report omitted certain information. ( Id. at 97:22-25.) The victim also informed Kopko that she was dissatisfied with how Kocher responded to her call. ( Id. at 98:13-16.)

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E. The Kopko Memorandum

Kopko prepared a memorandum to the Larksville Borough Council on September 21, 2010 (the " Kopko Memorandum" ) regarding the termination of Scott Kocher. ( Kocher Dep., Ex. 9.) With respect to the confrontation at the bazaar, Kopko noted that " he did in fact have at least one (1) hour to address the Mayor's concerns and orders. He did not. What he did do was lie and falsify his reports. I found out that the 911 Center times were erased from our computer. I was able to recover the times, proving he was lying." ( Id. ) As to the vehicle theft on September 16, 2010, " Kocher was given vital information from a Plymouth Police Officer as to who possibly stole the vehicle and to this date not only didn't he document this, he also failed to follow up on any of it." ( Id. ) Third, in regard to the September 16, 2010 incident at Petriga's Garage, " Kocher received a radio call from the 911 Center at 1:15 a.m. He never acknowledged that he arrived there nor what he did through the 911 Center." ( Id. ) Although Kocher indicated that he responded to the Petriga's Garage incident by phone, Kopko " told him that there was still no record of it. I asked him who he spoke to. He said he didn't know." ( Id. ) Kopko recommended Kocher be discharged from his employment with Larksville Borough because the Police Department " can't have an Officer that is sworn to do his duty fail to comply with this duty." ( Id. )

F. Kocher's Termination

Kocher was terminated from his position with Larksville Borough by the Borough Council on September 21, 2010. ( Defs.' SMF, ¶ 53.) Prior to the vote by the Borough Council to terminate Kocher's employment, Council received the Kopko Memorandum. ( Cresho Tr., 31:12-14.) Zawadski, however, did not recommend that Kocher be terminated. ( Zawadski Tr., 221:8-10, 233:12-14.) While Kocher's termination was discussed during the Borough Council's executive session based on the contents of the Kopko Memorandum, Patricia Cresho (" Cresho" ), the Borough Secretary/Treasurer, ( Cresho Tr., 31:15-32:17), testified that no comments were made about Kocher during the public meeting. ( Id. at 35:1-3.) Kocher did not recall any discussion at the public meeting about his removal other than the motion to terminate his employment. ( Kocher Dep., 126:18-128:1.) Kocher also did not remember being accused of a crime at the public meeting. ( Id. at 128:2-4.) Nor was Kocher aware of Councilman Pekarovsky ever publishing that Kocher committed a crime or informed other individuals about the circumstances of his termination. ( Id. at 150:14-151:1.)

Following his termination from Larksville Borough, Kocher applied for unemployment benefits. ( Id. at 118:19-22.) The Kopko Memorandum was provided to the Unemployment Compensation Bureau in connection with Kocher's application for benefits. ( Defs.' SMF, ¶ 62.)

G. The Kingston Borough Application and Investigation

In or about April 2009, Kocher applied for a full-time police officer position with Kingston Borough. ( Defs.' SMF, Ex. 3.) In connection with his application, Kocher signed a " Waiver and Release for Background Investigation." ( Id. ) The waiver and release, dated April 29, 2009, was signed by Kocher and notarized by a notary public. It states:

I, Scott Kocher (Name of Applicant), hereby give the Municipality of Kingston the right to make a thorough investigation into my background, previous employment, education, and references in order to ascertain my suitability for service

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as a police officer. I release from all liability and claims any and all persons, companies and corporations (public and private) supplying any information whatsoever to representatives of the Municipality of Kingston. This includes and is not limited to parties with whom I have entered into a written or oral agreement which contains a confidentiality clause. I release, indemnify and hold harmless the Municipality of Kingston, its officials, officers, and employees from and against any and all liability which might result from conducting such an investigation.

( Id. )

In June or July 2010, Detective Richard Kotchik (" Kotchik" ) was asked by Kingston Borough Police Chief Keith Keiper to conduct a background check of Kocher. ( Kotchik Dep., 12:25-13:20.) Kotchik's initial investigation into Kocher's background was completed on September 4, 2010. ( Id. at 32:1-4.) During the course of his initial investigation, Kotchik spoke with Kopko. ( Id. at 21:8-10.) Kopko informed Kotchik that while Kocher could be a good officer, he was lazy and did not seem interested in being employed with Larksville Borough. ( Id. at 22:4-13.) Kopko, however, did not inform Kotchik that Kocher was under investigation. ( Id. at 25:4-10.) Based on his background investigation, Kotchik noted that Kocher could " be a good Police Officer but may lack some motivation." ( Id. at Ex. 3.) Furthermore, Kotchik determined that he did " not believe and will not tell the Civil Service Commission that Scott E. Kocher is the best applicant for the position of full-time Police Officer for the Kingston Municipal Police Department." ( Id. )

In early October 2010, Kotchik learned that Kocher's employment had been terminated by Larksville Borough. ( Id. at 39:6-15.) At the direction of his police chief, Kotchik conducted a supplemental investigation of Kocher's background. ( Id. at 42:14-20.) Kotchik subsequently contacted Edwards to find out the reason for Kocher's termination. ( Id. at 41:6-13.) Kotchik also spoke with Kopko. ( Id. at 41:17-21.)

During his supplemental investigation of Kocher, Kotchik sought to review Kocher's personnel file from Larksville Borough. ( Id. at 43:21-44:6.) Kotchik had not reviewed the personnel file during his initial investigation. ( Id. ) But, once he learned of Kocher's termination, Kotchik contacted Larksville Borough to review the file. ( Id. ) Kotchik guessed Kopko granted him permission to review the file. ( Id. at 97:20-23.) When Kotchik first requested access to the file, Larksville Borough denied his request. ( Id. at 49:17-50:5.) Access was only granted once he presented Kocher's signed waiver and release. ( Id. )

On the day he reviewed Kocher's personnel file, Kotchik called Larksville Borough and spoke with Cresho before he proceeded to Larksville Borough to review the file. ( Cresho Tr., 9:8-13, 18:21-22.) Kotchik was at the building for approximately twenty to thirty minutes to review the file. ( Id. at 18:23-19:4.) Cresho did not contact anyone, such as Larksville Borough Council, for permission to allow Kotchik to review the file because she was presented with the waiver and release signed by Kocher. ( Id. at 19:5-11.) She also did not contact Kocher before permitting Kotchik to review his file. ( Id. at 19:15.) Larksville Borough " really didn't want to give me that personnel file," according to Kotchik, but he obtained access to its contents after he supplied the waiver with his request. ( Kotchik Dep., 43:21-44:6.) Kotchik reviewed the contents of Kocher's personnel file with Edwards. ( Id. at 45:6-21.) That was the first and

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only time Kotchik saw the Kopko Memorandum. ( Id. ...

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