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DeForte v. Blocker

United States District Court, W.D. Pennsylvania

March 24, 2017

COLONEL TYREE C. BLOCKER, Acting Commissioner of the Pennsylvania State Police; CORPORAL JOSEPH R. ZANDARSKI individually and as an Officer in the Pennsylvania State Police, jointly and severally, Defendants.


          Mark R. Hornak, United States District Judge

         In this civil action, Plaintiff William DeForte ("DeForte") has sued Corporal Joseph R. Zandarski ("Zandarski"), a trooper with the Pennsylvania State Police, for the alleged violation of his rights under federal and state law.[1] This Court's subject matter jurisdiction is premised on 28U.S.C. §1331 and §1367.

         Presently pending before the Court is Zandarski's motion to dismiss the Complaint (ECF No. 7). For the reasons that follow, Zandarski's motion will be granted in part and denied in part.

         I. BACKGROUND [2]

         On July 23, 2009, DeForte was hired as a police officer for Worthington Borough, Pennsylvania. (Compl. ¶8, ECF No. 1.) He was promoted to the position of Assistant Chief of Police on or around September 8, 2009 and made Chief of Police on March 9, 2010. (Id. ¶¶ 9-10.)

         During the course of his tenure with the Borough, DeForte often "clashed" with fellow police officer Gerald Rodgers, Borough Mayor Kevin Feeney, and Borough Councilman and Constable Barry Rosen. (Compl. ¶¶16, 21.) For example, DeForte opposed Feeney's and Rosen's practice of instructing officers that they had to cover the costs of their salaries and police vehicles by writing tickets and collecting fines. (Id. ¶¶18-19.) In addition, DeForte opened an investigation at one point into Feeney's suspected involvement in the theft of radios that were located in the Borough's fire hall. (Id. ¶17.) On another occasion, DeForte confronted Rosen about what DeForte believed was an unlawful use on Rosen's part of his unmarked police vehicle to effectuate traffic stops and conduct police business. (Id. ¶¶21-24.) DeForte also became aware that Officer Rodgers had operated a logging truck in connection with his logging business on roads in another township that he was not bonded to use. (Id. ¶¶25-28, 30.)

         On September 20, 2011, Feeney signed documentation guaranteeing that any money or equipment donated to the Worthington Borough Police Department by the officers could be retained by the officers as their personal property. (Compl. ¶56.) In reliance on the terms of this document, DeForte and another fellow officer brought furniture, pictures, a television, and various other items to the police department. (Id. ¶57.) They also personally funded the acquisition of five (5) Sig Sauer 556 rifles and a handgun, along with sundry personal effects. (Id.) Feeney later permitted DeForte to exchange one of the Sig Sauer 556 rifles for a rifle of his liking through a firearms dealer. (Id. ¶87.) Feeney further authorized DeForte to put the new rifle in his own (DeForte's) name. (Id. ¶88.)

         During times relevant to this litigation, DeForte used an AR-15 style rifle for training that was mostly built with parts that DeForte personally owned. (Compl. ¶31-) Specifically, the upper assembly of the rifle was purchased and owned by DeForte, while the lower assembly of the rifle was owned by the Worthington Borough Police Department and had been purchased with police equipment grant funds. (Id. ¶¶31-33.) In May of 2012, Officer Rodgers expressed interest in trading another rifle for the AR-style rifle that DeForte had been using (hereafter, "Rifle A"). (Id. ¶58-59.) DeForte informed Rodgers that he (Deforte) would need to receive permission from Feeney to transfer the lower assembly of Rifle A, as it was owned by the Worthington Borough Police Department. (Id. ¶61.)

         A few days later, DeForte spoke with Feeney about the matter. Feeney remarked that Rodgers was a "top producer" in terms of issuing citations and tickets, and he ordered DeForte to transfer the lower assembly of Rifle A to Rodgers in order to keep Rodgers happy. (Compl. ¶¶62-66.) On May 31, 2012, in the presence of DeForte and another Borough officer, Feeney signed paperwork approving the transfer of the lower assembly of Rifle A to Rodgers. (Id. ¶¶72-73.) Deforte agreed to transfer the rifle to Rodgers in reliance on this documentation authorizing the transfer. (Id. ¶80.)

         In the summer of 2012, DeForte discovered that Feeney had used thousands of dollars of police grant money to fund the repair and replacement of the traffic control light system on U.S. Route 422. (Compl. ¶¶92-95.) This prompted DeForte to open an investigation into the misuse of the police grant money. (Id. ¶96.)

         Later that summer, the Borough's police department initiated an undercover prostitution sting operation based on information that internet call girls were using rendezvous points within the Borough to engage in illegal sexual transactions. (Compl. ¶97.) According to DeForte, the Pennsylvania State Police ("PSP") became "extremely annoyed" with him and advised him that he had to inform PSP of all activity involving prostitution work. (Id. ¶¶98-99.) DeForte informed PSP that he was not under any obligation to inform them about the Worthington prostitution sting. (Id. ¶100.) PSP then provided an explanation for their position which DeForte found "ridiculous." (Id. ¶¶101-104.) Shortly after PSP became aware of the prostitution sting operation, Worthington Borough started to have problems negotiating with PSP concerning a new highway agreement. (Id. ¶105.)

         The sting operation resulted in several arrests. (Compl. ¶106.) The money confiscated from each arrest was placed into an individual evidence envelope, logged according to the arrest record, and placed in the Borough police department's evidence locker. (Id. ¶¶ 117, 120.) Once the case was disposed of in court, the envelope was no longer evidence and was transferred to the gun safe until it could be recovered through the courts or returned. (Id. ¶118.)

         During the course of the sting operation, the PSP barracks commander contacted DeForte about an individual who worked for the commander's brother and who had been identified during the course of the sting operation but never charged. (Compl. ¶¶107-112.) The PSP commander informed DeForte that he and his brother did not like the individual in question and wanted him criminally charged. (Id. ¶¶l 10-111.) DeForte advised the PSP commander that the individual had not engaged in any criminal behavior and DeForte would not file false charges against him. (Id. ¶¶ 107-108, 112.) Because he "was not comfortable with the direction that the phone call was going in, " DeForte terminated the call. (Id. ¶113.) Within a few days thereafter, members of the media contacted DeForte about the individual in question based on privileged information that had been leaked by an unknown source. (Id. ¶¶114-116.)

         Weeks after the prostitution sting occurred, a hostage crisis developed at a location within Worthington Borough. (Compl. ¶120.) Both PSP and Worthington Borough police officers responded to the situation (id. ¶121) and, according to DeForte, "[t]ensions between the two departments were very strained." (Id. ¶122.) DeForte claims that, while on scene, the county district attorney "stated [to two other individuals] that he had to keep the peace between the two police departments because the Pennsylvania State Police hated Chief DeForte and other officers of the Worthington Borough Police Department." (Id. ¶124.)

         On October 24, 2012, DeForte confronted Feeney regarding his theft of radios from the fire hall. (Compl. ¶125.) Feeney allegedly acknowledged taking the radios and inquired whether DeForte was investigating him. (Id. ¶126.) During the course of this conversation, DeForte referenced Feeney's practice of imposing citation quotas. (Id. ¶127.) DeForte also questioned Feeney about his use of improper use of police grant funds to purchase traffic control lights. (Id. ¶128.)

         Two days later, on October 26, 2012, DeForte received word that the police department's computers and hard drives were missing. (Compl. ¶¶129-130.) DeForte went to the police department and confirmed the items were missing, along with all criminal investigation files concerning Feeney and the firearms transfer records that Feeney had signed. (Id. ¶¶131-133.) The missing items were taken without permission from either DeForte's private desk or a locked cabinet. (A/. ¶134.)

         That evening, Feeney confronted DeForte in the Borough Council's room, screamed at him, and appeared as though he might physically attack DeForte. (Compl. ¶¶ 136, 138-139.) Feeney indicated that he had the missing firearm transfer documents and was going to turn DeForte in to the ATF, suggesting that, without documentation of Feeney's approval of the firearm transfers, DeForte would be facing legal trouble. (Id. ¶140.) Feeney then instructed DeForte to collect his belongings and get out of the Police Department. (Id. ¶141.) Officer Townsend, another member of the police department, feared that Feeney would terminate him as well, as Townsend had initiated the investigation into Feeney's alleged theft of the radios. (Id. ¶¶143-144.) Townsend therefore made the decision to return his department-issued rifle to the police department and gather his personal belongings. (Id. ¶145.) While at the police department, Townsend photographed the gun safe contents in order to document the fact that he had returned his rifle; he also photographed the large envelope containing the adjudicated files and money from the prostitution sting operation. (Id. ¶¶146-147.)

         According to the minutes from a Worthington Borough Council meeting, DeForte was suspended from his duties as Chief of Police on October 26, 2012 for alleged "insubordination and other possible offenses." (Compl. ¶l 1.) On November 5, 2012, he was terminated from his position at a Borough Council meeting that he was not permitted to attend. (Id. ¶¶12, 165.) Specifically, DeForte claims he was summoned to the Kittanning Pennsylvania State Police barracks prior to the November 5 meeting. (Id. ¶161.) Upon arriving, DeForte was advised that he should not attend the Council meeting where his termination was imminent. (Id. ¶163.) DeForte claims he felt threatened by these comments and perceived that he was being told he was not permitted to attend the meeting, which was open to the public. (Id. ¶¶163-165.)

         Prior to the November 5, 2012 Council meeting, Townsend was similarly summoned to the Kittanning PSP barracks. (Compl. ¶166.) Townsend was informed by state police personnel that he was "definitely getting fired." (Id. ¶167.) During this meeting, Townsend showed PSP personnel the pictures he had taken of the evidence locker and gun safe, which showed that the folder containing the adjudicated case files and money from the prostitution sting operation were in the gun case at the Worthington Borough Police Department. (Id. ¶¶168-169.)

         At times relevant to this lawsuit, DeForte - while serving as Worthington Borough's Chief of Police - was also simultaneously employed as a police commander with the Pine Township Police Department. (Compl. ¶151.) In that capacity, DeForte served under Pine Township Police Chief Christopher Airgood. (Id.) At some point, DeForte entrusted Airgood with the Worthington Borough firearms documents, which Airgood kept secured at the Pine Township police department. (Id. ¶154.)

         DeForte claims that, on or about October 30, 2012, Feeney and a Pine Township Supervisor broke into the Pine Township police department office and cut the locks off of DeForte's and Airgood's personal lockers. (Compl. ¶¶149-151.) Several days later, Pine Township's supervisors summarily terminated Airgood's employment and disbanded the Township's police department. (Id. ¶152.) The following day, Airgood collected his and DeForte's personal belongings from the police department. (Id. ¶153.) Airgood noticed that certain personal items or effects were missing, including the Worthington Borough firearms documents that were given to him by DeForte for safe keeping. (Id. ¶l 54.)

         In the late spring or summer of 2013, Zandarski contacted an individual by the name of Sonja McClain concerning the investigation that DeForte had conducted in regards to the stolen radios. (Compl. ¶¶172-173.) McClain informed Zandarski that she had brought the theft of the radios to DeForte's attention and that DeForte had known about the stolen radios even before then. (Id. ¶¶174-175.) During this conversation, Zandarski accused McClain of sleeping with DeForte, to which McClain responded that she was friends with DeForte and DeForte's girlfriend. (Id. ¶¶176-177.) McClain further advised Zandarski that DeForte's main suspect in regards to the stolen radios was Feeney. (Id. ¶l 78.)

         In August 2013, DeForte left Worthington Borough to attend law school at the University of Massachusetts at Dartmouth. (Compl. ¶180.) At that time, DeForte was still an active police officer holding the rank of captain at the North Buffalo Township Police Department, which entity allowed DeForte to work a flexible schedule around his law school schedule. (Id. ¶181.) That fall, DeForte was escorted to the Dean's office and advised that he could not carry his service weapons on campus because he was not a police officer and therefore was not covered by the Law Enforcement Safety Act. (Id. ¶182-184.) DeForte produced his North Buffalo Township police credentials, which he claims were still valid, but the Dartmouth chief of police would not recognize them as legitimate. (Id. ¶185-187.) The Dartmouth chief of police then remarked that DeForte should "talk to the Pennsylvania State Police" as to why this was happening to him. (Id. ¶188.) DeForte was subsequently charged in Massachusetts with criminal firearms possession, but the charges were later dismissed. (Id. ¶¶190-191.)

         In January 2014, around the same time that the Massachusetts charges were dismissed, Zandarski filed various theft-related charges against DeForte relating to a firearm, [3] the radios, and the money from the prostitution sting operation. (Compl. ¶192; see also Def.'s Ex. A, ECF No. 8-1.)[4] Zandarski subsequently appeared at DeForte's February 25, 2014 preliminary hearing, at which time he allegedly "manipulated the facts and gave false testimony so as to insure DeForte was held over for court." (Compl. ¶201.)

         That same month, DeForte had a conversation with a former Worthington Borough official who claimed that he had overheard a conversation in November 2012 in which Feeney, Rodgers, and Rosen had discussed ways to ensure that DeForte would never again hold employment as a police officer. (Compl. ¶¶198-199.) According to DeForte, he was informed that the conversation among Feeney, Rodgers, and Rosen "alluded to illegal ways to make sure [he] would be arrested and prosecuted." (Id. ¶200.)

         In the summer of 2014, DeForte received discovery materials from the district attorney's office relative to his criminal case. (Compl. ¶202.) DeForte claims that, upon receiving this information, he learned for the first time that PSP had previously been in possession of certain exculpatory evidence. (Id. ¶¶ 206-217.) This included:

(a) "documents that Mayor Feeney had signed, approving the transfer and control of Rifle A to [O]fficer Rodgers upon legal means"; (id. ¶215);
(b) information confirming the fact that Feeney had falsely denied signing the documentation and had falsely claimed that his signatures on the forms had been forged (id. ¶¶206-211, 215-216);
(c) photographs taken by Townsend of the prostitution sting money that were "contradictory to the charges filed against [Chief DeForte], " (id.¶214), and also at odds with photographs "that [O]fficer Rodgers, Mayor Feeney, and Constable/Councilman Rosen took, a few hours after Townsend took his photographs...[which] did not show the envelope containing the prostitution money" (id. ¶¶212-213); and
(d) two radios that PSP had collected from the Pine Township Supervisor that belonged to the Borough of Worthington (id. ¶217).

         In August 2015, the Armstrong County District Attorney's office nolle prossed all of the criminal charges against DeForte. This lawsuit followed with the filing of DeForte's four-count Complaint (ECF No. 1). Count I of the Complaint asserts federal claims against Zandarski pursuant to 42 U.S.C. ยงยง 1983, 1985, 1986 and 1988. Counts II through IV assert state law claims ...

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