United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge.
Introduction and Procedural History
matter arises in the wake of a set of failed criminal
prosecutions of Joseph Occhipinti in connection with his
business dealings. After the dust settled, Joseph and
Michelle Occhipinti filed a nine count Complaint, (Doc. 1),
against Detective Lisa Bauer, former Assistant District
Attorney Stephanie Tigue, former District Attorney Andrew
Jarbola, and Lackawanna County. The Complaint alleged several
different causes of action under 42 U.S.C. § 1983
including false arrest, malicious prosecution, misuse of
process, and Monell liability, in addition to
several related state law claims. (Doc. 1). After conducting
discovery, the four Defendants collectively filed a Motion
for Summary Judgment. (Doc. 33). The Motion and related
filings were referred to Magistrate Judge Carlson for a
Report and Recommendation ("R&R"). Upon
consideration of the matter, Magistrate Judge Carlson issued
an R&R recommending that the Motion be granted in part
and denied in part with leave for the remaining Defendants to
refile the Motion. (Doc. 45).
the objections of both parties, this Court adopted the
R&R and dismissed all claims against former District
Attorney ("DA") Andrew Jarbola and Lackawanna
County. (Docs. 53, 54). The Court also dismissed the single
claim brought by Michelle Occhipinti. (Id.). This
left only the following claims remaining, all brought by
Joseph Occhipinti ("Plaintiff'): three claims
brought under 42 U.S.C. § 1983 against Detective Bauer
for violation of the Fourth Amendment by way of false arrest,
(Count I), malicious prosecution, (Count II), and
misuse/abuse of process,  (Count III), a section 1983 claim
against Assistant District Attorney ("ADA") Tigue
for violation of the Fourth Amendment by way of false arrest
and misuse/abuse of process, (Count VI), and common law
claims against Detective Bauer for false arrest, malicious
prosecution, and misuse/abuse of process, (Count VIII). As
for these claims, this Court agreed with the R&R that,
because both parties had failed to comply with Local Rule
56.1, it was impossible to determine what facts, if any, were
undisputed. (Doc.53). The Court therefore allowed Detective
Bauer and ADA Tigue ("Defendants") to refile their
summary judgment motion on the limited issue of whether
Defendants were entitled to any immunity from liability.
refiled their Motion on October 28, 2016. (Doc. 58). The
Motion has now been fully briefed and is ripe for
decision. For the reasons that follow, this Court
will grant in part and deny in part Defendants' Amended
Motion for Summary Judgment.
Statement of Undisputed Facts
accordance with Local Rule 56.1, Defendants submitted a
Statement of Material Facts in Support of their Amended
Motion for Summary Judgment, (Doc. 60), as to which they
contend that there is no genuine dispute for trial, and
Plaintiff submitted a response, (Doc. 63). Thus, the
following facts have been admitted, except as specifically
was a minority owner and corporate secretary of State
Petroleum Distributors ("SPD"), a gasoline
distribution company. (Doc. 60 at ¶¶ 1-2; Doc. 63
at ¶¶ 1-2). In February of 2018, Plaintiff
contacted an owner of a supermarket, William Bracey, and
offered to let Bracey prepay for gasoline to insulate his
business against rising fuel prices. (Doc. 60 at ¶ 4;
Doc. 63 at ¶ 4). Bracey agreed, and the arrangement went
as planned for several months. (Dep. of Lisa Bauer, Doc. 64-4
at 5; Dep. of William Bracey, Doc. 59-1 at 376-377).
in early August, 2008, Plaintiff spoke again with Bracey
about prepaying for gasoline at a set price of $3.10 per
gallon. (Doc. 60 at ¶ 13; Doc. 63 at ¶ 13).
According to Bracey, he questioned Plaintiff about SPD's
financial status and was assured by Plaintiff that SPD was
not having money troubles. (Doc. 60 at ¶¶ 44-45;
Doc. 63 at ¶ 44-45). SPD, however, was experiencing cash
flow problems in 2008. (Doc. 60 at ¶ 12; Doc. 63 at
¶ 12). Beginning in February of 2008, SPD began to
bounce checks to the Pennsylvania Department of Revenue.
(Doc. 60 at ¶ 6; Doc. 63 at ¶ 6). In April, one of
SPD's lenders filed suit against the company, alleging
that SPD defaulted on its loan agreement with the lender.
(Doc. 60 at ¶ 5; Doc. 63 at ¶ 5). By the time
Plaintiff talked with Bracey in mid-August, SPD did not have
credit with any of its gas suppliers. (Doc. 60 at ¶ 17;
Doc. 63 at¶ 17).
August 15, 2008, pursuant to their prepay agreement, Bracey
forwarded a check to SPD in the amount of $500, 000. (Doc. 60
at ¶ 14; Doc. 63 at ¶ 14). That check was deposited
three days later in SPD's bank account at Community Bank
& Trust. (Doc. 60 at ¶ 18; Doc. 63 at ¶ 18). On
the same day of the deposit, $500, 000 was transferred from
SPD's bank account to a bank account of a different
corporate entity, RHL, Inc. ("RHL"). (Doc. 60 at
¶¶ 18-19; Doc. 63 at ¶¶ 18-19). The only
signatories on both SPD's bank account and RHL's bank
account were Plaintiff and the president of SPD and RHL,
Robert Lambert. (Doc. 60 at¶¶ 21-22; Doc. 63
at¶¶ 21-22; Dep. of Robert Lambert, Doc. 59-1 at
213). At the time of the transfer, the RHL bank account was
overdrawn by over $285, 000 and a portion of the $500, 000
went to cover this overdraft. (Doc. 60 at ¶ 20; Doc. 63
at ¶¶ 20, 33).
a few days of issuing the check, Bracey was unable to get
fuel from SPD. (Doc. 60 at ¶ 16; Doc. 63 at ¶ 16).
In the end, SPD only supplied $53, 000 worth of gasoline for
Bracey's mid-August prepayment of $500, 000. (Doc. 60 at
¶ 15; Doc. 63 at ¶ 15). After making at least one
phone call to Plaintiff about the missing fuel, Bracey
contacted the Lackawanna County District Attorney's
Office. (Doc. 60 at ¶¶ 39, 42; Doc. 63 at
¶¶ 39, 42). Thereafter, the investigation was
assigned to Detective Bauer. (Doc. 60 at ¶ 39; Doc. 63
at ¶ 39). Bauer interviewed Bracey and was informed
about the prepay arrangement, the $500, 000 check, the
missing gasoline, the fact that Bracey had dealt with
Plaintiff on behalf of SPD, and the assurance Plaintiff had
given Bracey about SPD's solvency. (Doc. 60 at
¶¶ 40-41, 43-45; Doc. 63 at ¶¶ 40-41,
April 16, 2009, a three count criminal complaint was filed
charging Plaintiff with theft by deception, receiving stolen
property, and deceptive or fraudulent business practices.
(Doc. 64-4 at 28-29). These charges were eventually withdrawn
and replaced with a single count of theft by failure to make
required disposition of funds received. (Doc. 64-9 at 3; Dep.
of Lisa Bauer, Doc. 64-4 at 11). A preliminary hearing was
then held on January 25, 2010, in which ADA Patricia Lafferty
represented the Commonwealth. (Jan. 25, 2010 Prelim. Hr'g
Tr, Doc. 64-15 at 2; Doc. 64-9 at 3). At the hearing, Bracey
testified that he did not personally hand the $500, 000 check
to Plaintiff and that Bracey did not know if anyone who
worked for his company had handed Plaintiff the $500, 000
check. (Jan. 25, 2010 Prelim. Hr'g Tr., Doc. 64-15 at 3).
Detective Bauer was at this hearing and heard Bracey testify.
(Dep. of Lisa Bauer, Doc. 64-4 at 12). Thereafter, the judge
dismissed the charges against Plaintiff. (Doc. 64-9 at 3).
February 1, 2011, Bracey met with Detective Bauer again and
showed her copies of the bank records of SPD and RHL. (Dep.
of Lisa Bauer, Doc. 64-4 at 16-18). This sparked a second
criminal investigation where Detective Bauer spoke with the
owner of one of SPD's gasoline suppliers, reviewed the
bank records of SPD and RHL, and reviewed depositions Lambert
had given in a related civil lawsuit. (Doc. 60 at ¶ 46;
Doc. 63 at ¶ 46). At this time, ADA Tigue was assigned
to the case and reviewed the evidence with Detective Bauer.
(Doc. 60 at ¶ 49; Doc. 63 at ¶ 49). On July 13,
2011, DA Andrew Jarbola and ADA Tigue made the decision to
refile a criminal charge against Plaintiff. (Doc. 60 at
¶ 51; Doc. 63 at ¶ 51). Detective Bauer drafted a
new police criminal complaint and new affidavit of probable
cause. (Doc. 59-1 at 142-47). The new criminal complaint,
approved by ADA Tigue, was refiled on July 13, 2011, and
contained a single charge against Plaintiff for theft by
failure to make required disposition of funds received. (Doc.
60 at ¶¶ 52-53; Doc. 63 at ¶¶ 52-53).
That same day, a judge approved the refiled charge and issued
an arrest warrant for Plaintiff. (Doc. 60 at ¶ 54; Doc.
63 at ¶ 54).
preliminary hearing on the refiled charge was held on
November 22, 2011. (Doc. 64-9 at 3). The charges were
thereafter bound over for trial. (Id.). Plaintiff
then filed a writ of habeas corpus, alleging that the
Commonwealth could not establish that a crime had occurred.
(Id. at 4). The trial court agreed, and dismissed
the charges against him on April 27, 2012. (Doc. 64-8). The
Commonwealth appealed the trial court's decision, and, in
an unpublished opinion, the Superior Court affirmed, finding
that there was no probable cause that a crime had been
committed. (Doc. 64-9).
subsequently filed the present lawsuit alleging that the
events surrounding the second criminal prosecution violated
several of his constitutional rights and gave rise to
liability under several common law causes of action. (Doc.
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, [o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177,
111 L.Ed.2d 695 (1990). Therefore, the non-moving party may
not oppose summary judgment simply on the basis of the
pleadings, or on conclusory statements that a factual issue
exists. Anderson, 477 U.S. at 248. "A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of
materials in the record ... or showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(A)-(B). In evaluating whether summary judgment
should be granted, "[t]he court need consider only the
cited materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). "Inferences should
be drawn in the light most favorable to the non-moving party,
and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true." Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert,
denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party
has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact. When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.
Id. (internal quotations, citations, and alterations
argue that (1) the section 1983 claims against ADA Tigue are
barred by the doctrine of absolute immunity, (2) the section
1983 claims against Detective Bauer and ADA Tigue are barred
by the doctrine of qualified immunity, and (3) the state law
claims against Detective Bauer are barred by official
immunity. (Doc. 59 at 14-27). The Court will address each
argument in turn.
first argue that ADA Tigue is absolutely immune from
Plaintiffs section 1983 false arrest claim. (Doc. 59 at
14-17). "[P]rosecutors are subject to varying levels of
official immunity and absolute prosecutorial immunity
attaches only to actions performed in a quasi-judicial role,
such as participation in court proceedings and other conduct
intimately associated with the judicial phases of
litigation." Carter v. City of Phila., 181 F.3d
339, 356 (3d Cir. 1999) (quotation marks omitted). For
example, "[t]he decision to initiate a prosecution is at
the core of a prosecutor's judicial role, " and
therefore "[a] prosecutor is absolutely immune when
making this decision, even where he acts without a good faith
belief that any wrongdoing has occurred." Kulwicki
v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992). By
contrast, "[a] prosecutor's administrative duties
and those investigatory functions that do not relate to an
advocate's preparation for the initiation of a
prosecution or for judicial proceedings are not entitled to
absolute immunity." Buckley v. Fitzsimmons, 509
U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
distinction arises because, "the actions of a prosecutor
are not absolutely immune merely because they are performed
by a prosecutor." Id. As the Supreme Court has
[t]here is a difference between the advocate's role in
evaluating evidence and interviewing witnesses as he prepares
for trial, on the one hand, and the detective's role in
searching for the clues and corroboration that might give him
probable cause to recommend that a suspect be arrested, on
the other hand. When a prosecutor performs the investigative
functions normally performed by a detective or police
officer, it is "neither appropriate nor justifiable
that, for the same act, immunity should protect the one and
not the other."
Id. (quoting Hampton v. Chicago, 484 F.2d
602, 608 (7th Cir. 1973)). Further, "[a] prosecutor may
not shield his investigative work with the aegis of absolute
immunity merely because, after a suspect is eventually
arrested, indicted, and tried, that work may be
retrospectively described as 'preparation' for a
possible trial." Id. at 276.
respect to the conduct at issue in the present case,
"[c]ourts have held that the determination whether the
giving of advice or direction to the police is a core
prosecutorial function depends upon whether the advice or
direction was given before or after the filing of
charges." Spiker v. Allegheny Cty. Bd. of Probation
& Parole, 920 F.Supp.2d 580, 600 (W.D. Pa. 2013).
For example, in Burns v. Reed, 500 U.S. 478, 111
S.Ct. 1934, 114 L.Ed.2d 547 (1991), Burns was the subject of
an investigation into the shooting of her two sons. 500 U.S.
at 481-82. The police sought to interview Burns under
hypnosis, but were concerned that hypnosis might be an
unacceptable investigatory technique. Id. at 482.
The police therefore sought the advice of the Chief Deputy
Prosecutor, Reed, who told the officers to proceed with
hypnosis. Id. The police then interviewed Burns
while she was hypnotized and she made several incriminating
statements. Id. Based on these statements, Reed
advised the police that there was "probably"
probable cause to arrest Burns. Id. Burns was
arrested, but the charges were eventually dropped.
Id. at 482-83.
the question of whether Reed's legal advice was entitled
to absolute immunity, the Supreme Court held "that
advising the police in the investigative phase of a criminal
case is [not] so intimately associated with the judicial
phase of the criminal process that it qualifies for absolute
immunity." Id. at 493 (internal citations and
quotation marks omitted). The Court found that it was
"incongruous to allow prosecutors to be absolutely
immune from liability for giving advice to the police, but to
allow police officers only qualified immunity for following
the advice." Id. at 495.
viewing the evidence in a light most favorable to Plaintiff,
there is a dispute of fact as to whether ADA Tigue was
involved in the investigation and in advising Detective Bauer
with respect to Bauer's investigation. Detective Bauer
testified in her deposition that ADA Tigue directed
Bauer's second criminal investigation. (Dep. of Lisa
Bauer, Doc. 64-4 at 21). They had several meetings together
and reviewed the entire file, including information from the
first criminal action. (Id. at 21-22). According to
Detective Bauer, "[e]verything that's in the
Affidavit [of Probable Cause] was discussed with Assistant
D.A. Tigue. Everything that's in this Affidavit was
brought to her for her approval." (I ...