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Occhipinti v. Bauer

United States District Court, M.D. Pennsylvania

August 14, 2017

JOSEPH OCCHIPINTI, et al., Plaintiffs,
v.
LISA BAUER, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani, United States District Judge.

         I. Introduction and Procedural History

         This 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).

         Over 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, [1] (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. (Doc. 54).

         Defendants refiled their Motion on October 28, 2016. (Doc. 58). The Motion has now been fully briefed and is ripe for decision.[2] For the reasons that follow, this Court will grant in part and deny in part Defendants' Amended Motion for Summary Judgment.

         II. Statement of Undisputed Facts

         In 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 noted:

         Plaintiff 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).

         Then, 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).

         On 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).

         Within 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, 43-45).

         On 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).

         On 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).

         A 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).

         Plaintiff 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. 1).

         III. Standard of Review

         Through 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).

         The 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 (1993).

         However, "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 omitted).

         IV. Analysis

         Defendants 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.

         A. Absolute Immunity

         Defendants first argue that ADA Tigue is absolutely immune from Plaintiffs section 1983 false arrest claim.[3] (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).

         The 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 explained,

[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.

         With 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.

         Addressing 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.

         Here, 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 ...


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