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Dempsey v. Bucknell University

United States District Court, M.D. Pennsylvania

January 5, 2015

REED C. DEMPSEY and SHELLEY DEMPSEY, Plaintiffs,
v.
BUCKNELL UNIVERSITY, JOHN C. BRAVMAN, LEWIS A. MARARRA, AMY A. BADAL, LINDA LOCHER, KARI M. CONRAD, CHIEF JASON FRIEDBURG, OFFICER JULIE HOLTZAPPLE, OFFICER DARRELL FISHER, OFFICER ROBERT ULMER, OFFICER JAMES MIDDLETON, DETECTIVE JEFFREY ETTINGER, CAPTAIN DOUGLAS LAUVER, and ANTHONY J. VOCI, JR., Defendants

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For Reed C. Dempsey, Shelley Dempsey, Plaintiffs: Dennis E. Boyle, Devon M. Jacob, Megan E. Schanbacher, Travis S. Weber, Boyle Litigation, Camp Hill, PA; Joshua M. Autry, Clymer, Musser & Conrad, P.C., Lancaster, PA.

For Bucknell University, John C. Bravman, Lewis A. Mararra, Amy A. Badal, Linda Locher, Kari M. Conrad, Chief Jason Friedburg, Officer Julie Holtzapple, Officer Darrell Fisher, Officer Robert Ulmer, Officer James Middleton, Detective Jeffrey Ettinger, Captain Douglas Lauver, Defendants: Amy C. Foerster, Bucknell University - Office of General Counsel, Lewisburg, PA; Cory S. Winter, James A. Keller, Saul Ewing LLP, Harrisburg, P.

For Anthony J. Voci, Jr., Defendant: Mark T. Perry, Timothy J. Holland, The Perry Law Firm, L.L.C., Scranton, PA.

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MEMORANDUM

Matthew W. Brann, United States District Judge.

Pending before this Court are two Motions for Summary Judgment (ECF Nos. 123 and 125), one filed by Defendant Anthony Voci and one filed by the remaining Defendants.[1] Both motions seek to dismiss all claims remaining against them, of which there are a total of nine. The matter has been fully briefed and is now ripe for disposition.

In accordance with the following reasoning, Defendants' Motions for Summary Judgment are granted in part and denied in part. Counts I, II, III, IV, VIII, X, XIV and XVI are dismissed in their entirety. Summary judgment is denied with respect to Count VII for defamation as asserted against Defendant Voci.

I. BACKGROUND

This case arises out of a sexual assault allegation by Ms. Kelly Stefanowicz against Plaintiff Reed C. Dempsey, and Bucknell University's response to that allegation, including the conduct of Bucknell University Public Safety officers and University officials. Moreover, several claims relate to the conduct of Ms. Stefanowicz's attorney, Defendant Anthony Voci, Esq., in the course of his legal representation, including the statements he made both to University officials and to a local journalist. Most of the facts underlying the following claims are undisputed; where the facts are disputed, the Court will acknowledge those discrepancies and will give credence

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to the evidence favoring the Plaintiff, as the nonmovant, as long as that evidence is properly supported. See infra, section II.

1. Facts Pertaining to Bucknell Defendants

On the evening of Sunday, September 5, 2010, Bucknell University Public Safety officer (hereinafter, " BUPS" ) and defendant Julie Holtzapple received a call from Brian Stefanowicz, father of Kelly Stefanowicz, who reported that his daughter had been assaulted earlier that morning. Defs.' Statement of Facts ¶ 1-2, May 29, 2014, ECF No. 127 (hereinafter " Defs.' SOF" ). He had noticed extensive bruising on his daughter when he saw her play in a collegiate field hockey game earlier that day, and he took photographs of her injuries after the game. Pl.'s Statement of Facts ¶ 30-31, June 26, 2014, ECF No. 138 (hereinafter " Pl.'s SOF" ).

When Ms. Stefanowicz was interviewed by BUPS officers, she reported that Mr. Dempsey was her assailant and that he " pinched" and " punched" her in inappropriate places while the two were alone together in his room[2]; moreover, she alleged that Mr. Dempsey was " hard" and " getting off to it" .[3] Defs.' SOF ¶ 5-9; Pl.'s SOF ¶ 34. She further reported that the altercation continued even after she was able to leave Mr. Dempsey's room; in the hallway she slapped Mr. Dempsey and he subsequently tackled her to the ground, causing some of her more substantial injuries. Defs.' SOF ¶ 11-13. She then showed the Defendant officers some of the text messages that Mr. Dempsey had sent to her after the " assault" which stated, " Sorry. . .I'm bleeding in several places and bruises all over. . .but that was unnecessary on my part" ; " I honestly feel horrible. . .I'm so sorry" ; and " Are you alright?" Id. at ¶ 16; Pl.'s SOF ¶ 26.

Later that night, BUPS officer and Defendant Robert Ulmer contacted Mr. Dempsey and asked him for an interview regarding the incident with Ms. Stefanowicz, and Mr. Dempsey agreed to the interview. Defs.' SOF ¶ 18-19; Pl.'s SOF ¶ 45. Mr. Dempsey further provided BUPS officers with a written statement and the name of witnesses to the " assault." Pl.'s SOF ¶ 47-48. BUPS officers did in fact request and receive statements from numerous witnesses recommended by Mr. Dempsey between September 5, 2010 and September 6, 2010, including Wade Payson-Denney, Gregory Fast, Andrew Watts, Kristen Brundage, Morgan Slade, Demitri Carahalios, Gabriela Ors, and Michael Sena. Pl.'s SOF ¶ 49. BUPS officers also had in their possession the statement of Ms. Stefanowicz's roommate, Raina Masand, which seemingly corroborated Ms. Stefanowicz's version of the events by detailing Ms. Stefanowicz's present-sense impression of what had occurred between her and Mr. Dempsey immediately afterwards. Defs.' SOF ¶ 23-32.

Ms. Stefanowicz also subsequently provided a written statement to BUPS officers on September 6, 2010. Id. at ¶ 43. In her statement she wrote that:

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Reed pinned me down on his futon, pinning my arms above my head by the wrists, and this is when I noticed he was aroused. I struggled to free myself as Reed repeatedly punched me with his closed fists in my groin and chest. He had also been pinching and slapping/scratching my backside (butt) throughout our fight. I began to slap, hit, punch, and knee Reed in the groin to fight him off. He said " I wanted to" and that I was a " huge bitch" for resisting him.

Id. at ¶ 44. She went on to state that she was finally able to free herself from Mr. Dempsey and run out into the hall where she slapped him, and then Mr. Dempsey forced her arms behind her back and tackled her to the ground. Id. at ¶ 45-49.

On September 6, 2010, Mr. Dempsey requested that he be provided a copy of the incident report[4] and was told by Defendant Ulmer that Ms. Stefanowicz had not pressed charges against him and that he could not obtain a copy of the incident report until charges were filed.[5] Id. at ¶ 99-100. That day, Defendant Dean Locher temporarily suspended Mr. Dempsey from Bucknell University. Pl.'s SOF ¶ 52. On September 7, 2010, Defendant Holtzapple filed a criminal complaint against Mr. Dempsey, charging him with simple assault, harassment, and disorderly conduct. Defs.' SOF ¶ 50.

Two days later Ms. Stefanowicz met with university officials and was told that Mr. Dempsey's temporary suspension had been lifted as a result of the no-contact condition of his bail on the criminal charges. Id. at ¶ 56-57. Following this meeting, BUPS officials decided to re-interview Ms. Stefanowicz and were given further information regarding her assault, including a more specified sexual component. Id. at ¶ 61-83. On the basis of this new information, Defendant Holtzapple filed a new criminal complaint against Mr. Dempsey charging him with false imprisonment and indecent assault, in addition to the original charges. Id. at ¶ 88; Pl.'s SOF ¶ 64.

Though Mr. Dempsey does not dispute that Ms. Stefanowicz gave these statements and the trajectory of the ensuing events, he does dispute its accuracy and the implications of the witness statements, which he alleges to be exculpatory information that should have cast serious doubt on Ms. Stefanowicz's credibility. He argues that, rather than an assault, what occurred while he and Ms. Stefanowicz were alone together in his room was merely " play-fighting.[6]" Specifically, Mr. Dempsey testified that while alone in his room, " [Kelly] had her hand on [Reed's] hands . . . kind of hands on [his] wrists, pushing [] [him] down against the futon." Id. at ¶ 8. When he attempted to move Ms. Stefanowicz off of him, her leg knocked over his Brita water pitcher and spilled it on the ground. Id. at ¶ 10. After that encounter, Ms. Stefanowicz left the room and Mr. Dempsey emerged shortly afterwards.

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Id. at ¶ 11-12. While conversing in the hallway, Ms. Stefanowicz allegedly attempted to begin " play-fighting" once more by poking Mr. Dempsey's arm and shoving him. Pl.'s SOF ¶ 13. Moreover, after chasing Mr. Dempsey down the hall, Ms. Stefanowicz hit him in his genitals, causing Mr. Dempsey to give her a " bear hug" in order to stop her from hitting him. Id. at ¶ 14-16. In the course of that bear hug, the pair fell to the ground, causing many of Ms. Stefanowicz's injuries. Id. at ¶ 16-17.

Regarding the allegedly exculpatory witness statements, Mr. Dempsey contends that they clearly demonstrate that Ms. Stefanowicz was lying in her statement to BUPS officers and that because of their possession of these witness statements the officers reasonably should have known that Ms. Stefanowicz lacked credibility. These witness statements do corroborate the fact that Mr. Dempsey and Ms. Stefanowicz were acting playfully before and after they were alone together in Mr. Dempsey's room; however, no witness statement discusses what happened in the room when the pair were alone together.

On September 14, 2010, while the criminal charges were still pending, Ms. Stefanowicz initiated internal student conduct charges against Mr. Dempsey and, in response, Mr. Dempsey filed student conduct charges against Ms. Stefanowicz. Defs.' SOF ¶ 89-90; Pl.'s SOF ¶ 65-66. Two weeks prior to the hearing, Mr. Dempsey received various documents from the University as required by the Student Handbook, including copies of his and Ms. Stefanowicz's written statements, a redacted version of the BUPS's incident report, photographs of Ms. Stefanowicz's injuries, and written witness statements of eleven witnesses. Defs.' SOF ¶ 106. Five days before the hearing he was subsequently provided with the transcription of Ms. Stefanowicz's September 9, 2010 interview, the written statement of Rebecca Neubauer, a DVD of the September 5, 2010 field hockey game in which Ms. Stefanowicz played, additional photographs, and a copy of the report from Ms. Stefanowicz's September 5, 2010 medical evaluation at Evangelical Hospital. Id. at ¶ 109.

Mr. Dempsey further requested from the University but did not receive, an audio recording of Ms. Stefanowicz's first interview, a complete copy of the BUPS incident report, the handwritten notes of Defendant Officer Fisher, and additional exculpatory witness statements. Pl.'s SOF ¶ 70; Defs.' SOF ¶ 110. The Bucknell Student Handbook provides that students shall receive " [a] copy of the charge(s) and supporting information, including the Public Safety Information Report, Police Report, Housing and Residential Life Information Report, and statements from any witnesses." Bucknell Defs.' M. for Summ. J., Ex. EE, ECF No. 126-31.

Bucknell University held a hearing on both sets of charges from October 5-7, 2010. Defs.' SOF ¶ 92. Both Mr. Dempsey and Ms. Stefanowicz were found guilty of disorderly conduct based on their conduct in the residence hall on the night of September 4-5, 2010, and were exonerated on all other filed charges. Id. at ¶ 93; Pl.'s SOF ¶ 69. Both received letters of censure and were required to move to separate residence halls. Defs.' SOF ¶ 94. On October 29, 2010, Union County, Pennsylvania District Attorney Peter Johnson withdrew the criminal charges against Mr. Dempsey. Id. at ¶ 96; Pl.'s SOF ¶ 71. Mr. Dempsey was subsequently reinstated to the University and graduated in May 2013. Defs.' SOF ¶ 117.

2. Facts Pertaining to Defendant Voci

On September 7, 2010, after the first set of criminal charges were filed against Mr.

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Dempsey, Defendant Voci's law firm was contacted by Mr. Stefanowicz regarding the incident and to assist the family through the process. Pl.'s SOF ¶ 53. After Bucknell University officials lifted Mr. Dempsey's temporary suspension, Defendant Voci engaged in a telephone call with Steven Becker, Esq., Mr. Dempsey's attorney, and Wayne Bromfield, Esq., counsel for Bucknell University, to protest the lifting of the suspension. Def. Voci's Statement of Facts ¶ 30, May 29, 2014, ECF No. 124-22 (hereinafter " Def. Voci's SOF" ); Pl.'s SOF ¶ 55. During that call, Defendant Voci referred to Mr. Dempsey as something akin to a " sexual assaulter." Def. Voci's SOF ¶ 30.

On September 21, 2010, Defendant Voci wrote a letter to Defendant Dean Conrad, seeking to stop the student conduct hearing until the criminal charges against Mr. Dempsey had run their course and, further, seeking dismissal of Mr. Dempsey's student conduct charges against Ms. Stefanowicz. Id. at ¶ 29. That letter stated that " the University [is] allowing the perpetrator of a sex crime to misuse the internal process to continue to victimize a student/victim." Pl.'s SOF ¶ 57. On September 29, 2010, Defendant Voci authored two separate pieces of correspondence, one an email to Defendant Conrad and the other a letter to Mr. Bromfield, which Defendant Voci also forwarded to the Bucknell University Board of Trustees. Def. Voci's SOF ¶ 32-33. The first related to his concerns over the failure of the University to postpone the student conduct hearing; in it he referred to Mr. Dempsey as Ms. Stefanowicz's " assailant." Pl.'s SOF ¶ 59. The latter was sent for the same purposes, and referred to Mr. Dempsey throughout as " the offender," Ms. Stefanowicz's " attacker," and the perpetrator of a " sex crime." Id. at ¶ 58.

Later, Defendant Voci spoke with Joseph Deinlein, a reporter from The Daily Item newspaper, based in Sunbury, Pennsylvania. Def. Voci's SOF ¶ 18-20. He was quoted only twice in Mr. Deinlein's articles, once on October 5, 2010 and again on October 6, 2010. Id. at ¶ 18-20. Specifically, in the October 5, 2010 article, Defendant Voci stated, " Our client did not request this hearing date. . . . She instituted the internal charges at the suggestion of university officials who advised her in the aftermath of incident. As you can imagine, this is a shaken 19-year-old girl reaching out to the university." Id. at ¶ 18. On October 6, 2010, he is quoted as saying, " She was told her charges against her attacker would be thrown out if she did not attend the hearing. . . . And the charges against her would be tried in abstentia." Id. at ¶ 20. Defendant Voci does not dispute that he made these statements to Mr. Deinlein.[7]

II. STANDARD OF REVIEW

Summary judgment is appropriate where " 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 fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all inferences in the nonmovant's favor, " could return a verdict for the nonmoving party." Id.

The burden of establishing the nonexistence of a " genuine issue" is on the party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). The moving party may satisfy this burden by either (i) submitting affirmative evidence that negates an essential element of the nonmoving party's claim; or (ii) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case. Id. at 331.

Where the moving party's motion is properly supported, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth " genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " materials in the record" that go beyond mere allegations, or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse ...


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