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Cole v. Encapera

United States District Court, W.D. Pennsylvania, Pittsburgh.

August 16, 2017

JASON COLE, Plaintiff,


          Cynthia Reed Eddy United States Magistrate Judge.


         Presently before the court for disposition are the following:

1. Defendants California Borough (“Borough”), Terry Childs (“Officer Childs”), Casey Durdines (“Mayor Durdines”) and Rick Encapera's (“Chief Encapera”) motion for summary judgment [ECF No. 133]; and
2. Defendant Justin Shultz's (“Officer Shultz”) motion for summary judgment [ECF No. 136].

         The motions are fully briefed and ripe for disposition. For the reasons that follow, the motions are granted in part and denied in part.


         Plaintiff Jason Cole (“Plaintiff”) initiated the present civil rights action alleging that the defendants' conduct violated his civil rights and various state laws in connection with a bar he owns in California Borough, Pennsylvania.

         Many of the allegations contained in the parties' respective concise statements of material facts are void of specific dates of events that are alleged to have occurred and that are crucial to the subject matter of this complaint. Moreover, the court notes that the factual allegations of Plaintiff's complaint are largely supported by circumstantial evidence and his own deposition testimony and at times, Plaintiff fails to remember when some of the material allegations transpired. Moreover, Plaintiff's responsive concise statement of material facts submitted to defend against the motions for summary judgment does not give specific dates detailing when some material events occurred. What is more, that out of thousands of pages of deposition transcripts, police reports, and other documentary evidence, Plaintiff's recollection of the chronology of the events that occurred come from a two-page document handwritten by him purportedly contemporaneously with the events as they transpired. See Pl.'s Resp. to Def. Shultz's Concise Statement of Material Fact (“SMF”) [ECF No. 171-11 at 2-3]. When asked to verify these dates and meetings with the named individuals in the handwritten document in his deposition, Plaintiff's recollection was far from complete. However, Plaintiff's failure to remember the chronology and specific dates on which events occurred are significant only to his credibility, which this Court cannot and will not make a determination of. Additionally, the parties have included many immaterial and irrelevant facts in their concise statements in support of their respective briefing, none of which will be considered by the Court in determining the present motion. The Court has constructed the factual background of this opinion, to the extent necessary, from the entire record and will draw all reasonable inferences in Plaintiff's favor as the nonmoving party in determining Defendants' motions for summary judgment.

         Plaintiff has owned and operated a bar called J. Cole's Inn located in California, Pennsylvania since 1997. The bar is near California University of Pennsylvania and is mostly frequented by local college students, but also has patrons who are alumnae and members of the community. While the bar is incorporated as a limited liability company under Pennsylvania law, Plaintiff claims that he has operated J. Cole's Inn as a sole proprietorship and has claimed all revenue from J. Cole's Inn on his personal tax returns. There are approximately four other bars in the California, Pennsylvania area that also have the reputation as being “college bars” - McMonagles, Wood Street, Lagerheards and Signatures, which are all located in the same vicinity as J. Cole's Inn. According to witnesses, J. Cole's Inn was a popular college bar and Plaintiff claims it was consistently profitable through 2011.

         Sometime in 2012, the Borough hired two new police officers, Officers Childs and Shultz. These officers worked detail in the vicinity of J. Cole's Inn.

         August 2012/September 2012 Loan to Officer Shultz

         In late August or early September 2012, Officer Shultz asked Plaintiff for a monetary loan and Plaintiff loaned Officer Shultz an amount between $1, 500 and $2, 000. Plaintiff complained to Chief Encapera that it was inappropriate for Officer Shultz to ask a local business owner for a loan, but it is unclear from the record when Plaintiff voiced his complaints to Chief Encapera or the frequency of his complaints.

         Plaintiff's Complaints to Borough in 2012

         On or about October 15, 2012, Plaintiff went to the Borough Police department to speak with Chief Encapera and Officer Shultz about the loan he issued Officer Shultz, but did not meet with either individual.[2]

         On or about October 26, 2012, Plaintiff went to the Borough police department with the intention of complaining to Chief Encapera about an incident which occurred six months prior in which a patron was arrested outside of J.Cole's Inn and the arresting officer, Officer Childs, shoved the patron into a soda vending machine, causing damage to the machine which Plaintiff paid, or had to pay to be fixed. Shultz J.A. [ECF No. 139-3 at 59]. Plaintiff did not speak with Chief Encapera, but spoke with the Borough Secretary. It is unclear what conversation, if any, transpired between Plaintiff and the Borough Secretary.

         Plaintiff again traveled to the Borough police department on or about November 15, 2012 with the intention of complaining to Chief Encapera about the vending machine, but did not meet with the chief that day.

         On or about December 10, 2012, Plaintiff again traveled to the Borough police department, but the offices were closed. It is unclear whether Plaintiff intended to complain about the vending machine, or another issue.

         On or about January 22, 2013, Plaintiff contacted the Borough District Attorney Gene Vittone. While Plaintiff indicates he contacted Mr. Vittone to “voice his concerns, ” Pl.'s Resp. to Defs.' SMF [ECF No. 141] at ¶ 54, he does not elaborate on what “concerns” he intended to voice, or the dates that he ever complained of any officer misconduct to Mr. Vittone. Plaintiff alleges that Mr. Vittone did not answer and that he left a message for Mr. Vittone but it was never returned. Plaintiff testified that he never met with Gene Vittone, but testified that he spoke with Gene Vittone about his claims that Borough police officers mistreated him, but could not provide an exact time frame as to when this conversation transpired, or the specific officer misconduct he allegedly communicated. Shultz J.A. [ECF No. 139-3 at 61 p. 238].

         Search of Michael Steve's Apartment

         Plaintiff rented out apartments above J. Cole's Inn. On or about January 26, 2013, the police, and specifically, Officer Childs conducted a warrantless search of one of Plaintiff's tenants, Michael Steve's apartment after receiving a call reporting a disturbance involving a firearm. Michael Steve was also Plaintiff's employee at the time. The officers caused unspecified property damage to the apartment after kicking in the door to the apartment to gain entrance.

         Sexual Harassment Allegations

         Plaintiff maintains that Officers Shultz and Childs sexually harassed his female bartenders both in person at the bar while the bartenders were working shifts and Officers Childs and Shultz were working detail at the bar, and via text message between these individuals. This conduct allegedly occurred from the time Officers Shultz and Childs began to work for the Borough in 2012.

         On or about February 13, 2013, Plaintiff learned that a frequent patron of J. Cole's Inn, Autumn Pawelec, was not of the legal age to consume alcohol. This caused Plaintiff to become concerned about possible Liquor Control Enforcement (“LCE”) violations in connection with serving alcohol to a minor. Plaintiff also learned that this woman was allegedly engaging in sexual relations with Officer Shultz, and Plaintiff suspected that Officer Shultz and/or Childs knew that she was underage while she consumed alcohol in J. Cole's Inn and various other local bars, but that the officers did nothing about this conduct because of Shultz's alleged sexual relationship with her. Officer Shultz denies that he knew that Autumn Pawelec was underage.

         Once Plaintiff learned of this, he asked his head bartender, Melissa Tedrow, to dig up “ammo” (i.e., damaging information or “dirt”) on Officers Shultz and Childs. Defendants allege that Plaintiff did so to use this damaging information as a defense against any potential Liquor Control Board investigations in connection with serving alcohol to an underage person. Plaintiff alleges that he did so to request proof that Officer Shultz knew she was not of the legal drinking age. Nonetheless, Plaintiff asked Tedrow to send him screenshots of any text message ever sent to her by Childs or Shultz that she felt was inappropriate and Tedrow complied.[3] At this point, Tedrow also informed Plaintiff that in October 2012 when she was working a shift at J. Cole's Inn, Officer Childs took her phone off of the bar and deleted allegedly inappropriate text messages that he sent to her.

         Tedrow also rented an apartment located above J. Cole's Inn. On February 14, 2013, Officers Shultz and Childs, who were in uniform and carrying service weapons, blocked Tedrow's path as she attempted to leave J. Cole's Inn to return to her apartment and questioned her about any pictures she may have on her phone that would make the officers look bad.

         From the entirety of the submissions by the parties, it is unclear whether Plaintiff knew of the sexually inappropriate remarks that Officers Childs and Shultz made to his employees prior to February 2013. Tedrow testified that Plaintiff could have been in earshot of conversations that she had with other bartenders about these officers inappropriate conduct in 2012, but what is clear from the record is that the first time that Plaintiff complained of the officers' alleged sexual harassment of his employees was on February 15, 2013.[4] On that day, Plaintiff confronted Officers Shultz and Childs about their conduct toward his employees and specifically towards Tedrow telling them to cease the harassing conduct. Another Borough officer, Officer Colin Rockwell was present for this interaction.

         Police Presence at J. Cole's Inn

         Plaintiff claims that after he confronted Officers Shultz and Childs in February 2013, the officers “maintained a constant presence outside J. Cole's Inn” by stationing their police cars in the alley across the street from J. Cole's Inn, standing outside of the bar, following individuals who left the bar, taking photographs of the customers waiting in line to enter the bar, and using threatening and intimidating language to J. Cole's Inn's patrons as they entered or exited J. Cole's Inn. Pl.'s Am. Resp. to Defs' SMF [ECF No. 176 at ¶ 66-73]. Plaintiff does not provide any specific information including the timing or frequency regarding this police presence, although former employees of J. Cole's Inn testified that police cars were stationed outside of J. Cole's Inn beginning in the Fall of 2012 through Spring 2013. Plaintiff claims that because of this constant police presence, his establishment gained a negative reputation as being a dangerous place for college students to visit. Plaintiff alleges that because of this constant police presence, his revenues dropped, as college students were afraid to patron his establishment. It is unclear from the record whether Plaintiff lodged any complaints about police presence between February 2013 and May 2013.

         Closure of J. Cole's Inn on May 3, 2013 - May 4, 2013

         The evening of May 3, 2013 through the early morning of May 4, 2013, a California Borough Police Officer Kristie Salzman was on duty and patrolling the Borough. Officers Childs and Shultz were also on duty and at some point during their shift, Officers Childs and Shultz delivered an undercover vehicle to a location outside of the Borough while Officer Salzman remained on duty in the Borough. Officer Salzman became aware of numerous disturbances in the Borough involving drunk, violent and disorderly persons. Officer Salzman was compelled to call for assistance from other law enforcement agencies while Officers Childs and Shultz were temporarily located outside of the Borough, as the disturbance became extremely disorderly. Five other law enforcement agencies responded to the Borough to assist in clearing large groups of persons from the streets and bars located within the Borough limits. Sometime after this, Officer Childs responded to the scene. In the early morning hours of May 4, 2013, Officer Childs made the decision to close four bars in the Borough, Wood Street, McMonagles, J. Cole's Inn and Peggy's Bar. Officer Shultz had no involvement in the early closure of the bars on the morning of May 4, 2013.

         On May 4, 2013, Plaintiff sent a text message to Chief Encapera complaining about the alleged police misconduct. Plaintiff does not specify what misconduct he attempted to complain about. Chief Encapera responded that Plaintiff should provide his complaint to the Chief's secretary or to contact the Chief directly and that the Chief would need the information before the Council meeting on May 9, 2013.

         On May 7, 2013, Chief Encapera wrote a letter to Plaintiff stating: “On Saturday, May 4, 2013, during a phone conversation you leveled some horrific accusations against a couple of officers from the California Borough Police Force. I asked you to come into my office on May 6, 2013, so we could document these accusations. At the time of this letter, you have not done this. I need your co-operation so I can address what you have accused these officers doing. I am in my office Monday - Friday from 7 AM 0 [sic] 3PM.” Defs' SMF [ECF No. 135-13]. Plaintiff did not complain about officer misconduct at the May 9, 2013 Borough Council Meeting.

         On May 7, 2013, Shultz and Childs were suspended from their positions as police officers as a result of misconduct unrelated to Plaintiff or J. Cole's Inn. Plaintiff admits that he has no evidence to support a claim that Officer Shultz took any action against him or J. Cole's Inn after May 4, 2013. See Shultz SMF [ECF No. 137 at ¶ 29]; Pl.'s Resp. to Shultz SMF [ECF No. 143 at ¶ 29].

         June 2013 Borough Council Meeting

         On or about June 13, 2013, Plaintiff attended a Borough Council meeting and complained about police misconduct. Prior to the meeting, Plaintiff provided the Borough Council with several boxes of documents which contained witnesses' statements, cell phone text logs and call logs, petitions and formal complaints. It is unclear from the record exactly what misconduct Plaintiff complained about at the Borough Council meeting. However, it is undisputed that Plaintiff attended the June 13, 2013 Borough Council meeting and complained about police misconduct.

         Following the Borough Council meeting, on June 19, 2013, Chief Encapera emailed Officer Shultz informing him that several complaints were registered against him and an investigation was ongoing as to those complaints. Chief Encapera indicated in his email that he “had concern that [Officer Shultz] may retaliate” against those who levied the complaints and cautioned Officer Shultz that any such retaliation would be handled “both criminally and civilly with immediate suspension and dismissal.” Pl.'s Am. Resp. to Defs' SMF [ECF No. 176-28].

         Officer Shultz was terminated from the Borough in November 2013 due to an unrelated matter. Officer Childs resigned from the Borough in December 2013.

         Independent Investigator

         The Borough retained an independent investigator in July 2013 who issued a report regarding a number of problems with the police department including issues with supervision, a lack of a system in place to void arrests, no policy regarding stop and frisk, no policy concerning civilian complaints, and no policy delineating establishments where off-duty police officers should not be permitted.

         August 12, 2013 Email from Chief Encapera to Mayor Durdines

         On August 12, 2013, Chief Encapera wrote an email to Mayor Durdines which stated:

FYI - this morning I received information that Jason Cole approached Ptl Robatin at the KwikFill last week and told him that I threw all of my officers under the bus by hiring a New York Detective to investigate the police department - Nobody in my department, to my knowledge, had any first hand [sic] knowledge of an investigator other than the DA until this incident . . . I just wanted this documented for future use because something need to be done to this medaling [sic] trouble maker[.]”

Pl.'s Am. Resp. to Defs' SMF [ECF No. 176-33 at 2].

         LCE Investigations

         The following enforcement actions were taken against the Plaintiff by the Pennsylvania Bureau of Liquor Control Enforcement (“LCE”) for the entirety of the time that Plaintiff has owned the bar:

(1) In July 2001, Plaintiff's liquor license was suspended for three days on the grounds that Plaintiff served an underage person alcohol;
(2) In February 2003, Plaintiff was directed to pay a fine of $1, 000 and Plaintiff's liquor license was suspended for two days on the grounds that he served an underage person alcohol;
(3) In April 2004, Plaintiff was ordered to pay a fine of $300 on the grounds that he served patrons alcohol after 2:30 a.m.;
(4) In May 2004, Plaintiff was ordered to pay a fine of $150 on the grounds that he issued a check in payment for purchases of malt or brewed beverages which was dishonored by Plaintiff's bank due to insufficient funds;
(5) In November 2006, Plaintiff received a warning from the LCE for furnishing alcohol to a minor;
(6) In May 2012, Plaintiff received a warning from the LCE that his employees furnished more than one free drink per person;
(7) In March 2013, the LCE informed Plaintiff he served alcohol to an underage person;
(8) In April 2013, the LCE informed Plaintiff he served alcohol to an ...

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