United States District Court, W.D. Pennsylvania
R. Hornak, United States District Judge
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. This Court's subject matter
jurisdiction is premised on 28U.S.C. §1331 and
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
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.
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.
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.)
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.)
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.
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.
January 2014, around the same time that the Massachusetts
charges were dismissed, Zandarski filed various theft-related
charges against DeForte relating to a firearm,  the radios, and
the money from the prostitution sting operation. (Compl.
¶192; see also Def.'s Ex. A, ECF No.
8-1.) 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.)
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.)
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.
(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
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. §§ 1983, 1985, 1986 and 1988.
Counts II through IV assert state law claims ...