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Montecalvo v. North Franklin Township

United States District Court, W.D. Pennsylvania

June 24, 2019





         In his Second Amended Complaint, pro se Plaintiff Brian Montecalvo (“Montecalvo”) has set forth six separate causes of action against the Defendants largely arising from a landlord tenant dispute and resulting state court litigation which the parties appeared to have resolved amicably via a settlement. (Docket No. 34). Most of Montecalvo's claims assert state law theories against fellow Pennsylvania citizens Defendants Irma Tatano, Angelo Tatano, Madonna Tatano, and Cathy Vogel, except for two § 1983 claims against Defendants North Franklin Township, Washington County, PA (“North Franklin Township”) and Officer Ronald Fox, Chief, (“Chief Fox”) alleging malicious prosecution in violation of the Fourth Amendment, fabrication of evidence under the Fourteenth Amendment and First Amendment retaliation related to the filing of a harassment citation against Montecalvo. (Id. at Counts I, IV). The parties have flooded the Court with various motions seeking all types of relief. (See Docket Nos. 33; 36; 38; 41; 43; 45; 47; 68; 69; 70; 79; 81; 94; 99). However, the Court focuses on the motion to dismiss filed by North Franklin Township and Chief Fox and Plaintiff's opposition thereto which pertain to the only claims over which this Court has original subject matter jurisdiction. (See Docket Nos. 41; 42; 51; 52; 66; 67; 70; 77; 78). After careful consideration of the parties' positions, and for the following reasons, North Franklin Township and Chief Fox's motion to dismiss [41] will be granted, Plaintiff's § 1983 claims against North Franklin Township and Chief Fox will be dismissed, with prejudice, the Court will decline to exercise supplemental jurisdiction over the remaining state law claims against the non-diverse Defendants under 28 U.S.C. § 1367(c)(1) and deny the rest of the parties' motions, as moot.


         A. Relevant Facts

         Despite the voluminous submissions by the parties and their various disagreements, [1] the basic facts underlying the dispute between Montecalvo, North Franklin Township and Chief Fox are straightforward. (Docket No. 34-2). Montecalvo rented a townhouse in Washington County from Defendants Irma and Angelo Tatano for more than a decade. (Id.). Defendant Cathy Vogel (“Vogel”) lived in the same building for at least part of this time. The landlord-tenant relationship between Montecalvo and the Tatanos deteriorated. The Tatanos then engaged Defendant Madonna Tatanto to represent them and she advised Montecalvo that they wanted to terminate the landlord-tenant relationship in November of 2014. (Id.). Montecalvo and the Tatanos became embroiled in litigation in Washington County, with Montecalvo representing himself and Madonna Tatano representing the Tatanos. Montecalvo wanted Vogel to be a witness on his behalf during this litigation but she apparently avoided his efforts to participate in the discovery process. (Id.). The cases were set for a trial on November 13, 2017. (Id.).

         Prior to the trial, on October 6, 2017, Vogel and Madonna Tatano filed a police report with Chief Fox. After meeting with Vogel and Madonna Tatano, Chief Fox filed a non-traffic citation/summons against Montecalvo charging him with committing the summary offense of harassment in violation of 18 Pa.C.S. § 2709(a)(3). The description of the nature of the offense in the citation states succinctly that Montecalvo “has engaged in a course of conduct to harass or annoy Cathy Vogel namely disparaging remarks and calls to third parties, family members and by visiting and driving through her home complex which served no legitimate purpose.” (Docket No. 34-1, Pl. Ex. “A”). Montecalvo claims that both Vogel and Madonna Tatano lied to Chief Fox about the circumstances when they told him that Montecalvo:

harassed Cathy Vogel by giving a third party person, (Matt Vogel), a cease and desist notice to stop Cathy Vogel's harassment and invasion of privacy towards Brian Montecalvo. Cathy Vogel also made false statements that Brian Montecalvo had harassed Cathy Vogel by driving out of the parking lot of her apartment building after being assaulted by Cathy Vogel in an attempt to serve Cathy Vogel with a subpoena. This complaint was instigated without probably (sic) cause and was malicious.

(Docket No. 34 at ¶¶ 7, 8). He further asserts that Chief Fox “knows that serving a subpoena and a cease and desist notice is not illegal” and that he “presented no evidence of wrongdoing for this complaint.” (Id. at ¶ 9). He continues that this action violated his freedom of speech rights because Chief Fox stated that Montecalvo “did not have freedom of speech to protect himself verbally or in writing or in the court system” and that Chief Fox “initiated a criminal complaint against Brian Montecalvo for issuing a verbal cease and desist notice to stop any and all harm from Defendant: Cathy Vogel and her family and for delivering a subpoena.” (Id. at ¶ 67). He makes nearly identical allegations against North Franklin Township. (Id. at ¶ 10; 68). At the same time, Montecalvo alleges that Chief Fox and North Franklin Township ignored all of the complaints that he made about the Tatanos and refused to arrest or prosecute them at his behest. (Id. at ¶¶ 71; 722).

         Approximately two weeks after the citation was filed, on October 19, 2017, Montecalvo, the Tatanos and Madonna Tatano entered into a Settlement Agreement and Mutual Release of All Claims on October 19, 2017 wherein they apparently agreed to resolve their lawsuits and a related appeal in advance of the November 13, 2017 trial date. (Docket No. 34-2). This agreement specifically references the criminal complaint in a provision titled “Ancillary Actions” wherein they acknowledge that additional litigation may ensue between Montecalvo and non-parties to the agreement but they would provide testimony as witnesses. (Id.).

         Returning to the criminal complaint, Montecalvo admits that he was served with a summons and was required to appear at a local magistrate office in defense of same. (Docket Nos. 66; 67). Ultimately, the charge was dismissed. (Docket No. 34 at ¶¶ 7-8; 10). Although the parties disagree about the disposition, with Defendants contending that the case was dismissed after Montecalvo agreed not to have any contact with Vogel for 90 days, the Court accepts Plaintiff's version of the events for purposes of this motion, i.e., that he was found not guilty at a summary trial. (See Docket Nos. 66; 67).

         B. Relevant Procedural History

         Montecalvo initiated this case by filing his Complaint against all of the Defendants on October 18, 2018. (Docket No. 1). Prior to the filing of any responsive pleadings, Montecalvo filed an Amended Complaint on November 6, 2018. (Docket No. 9). Vogel filed a pro se Answer to the Amended Complaint on December 10, 2018. (Docket No. 18). Plaintiff then attempted to file a pleading which the Court construed as a Second Amended Complaint and struck from the docket because it did not comply with Rule 15(a)(2) of the Federal Rules of Civil Procedure. (Docket Nos. 22; 23). The Court later granted Plaintiff's motion to file a Second Amended Complaint, which he did on January 23, 2019 and it remains the operative pleading for purposes of this Opinion. (Docket No. 34).

         Relevant here, North Franklin Township and Chief Fox filed a motion to dismiss or in the alternative, motion for summary judgment, on February 20, 2019. (Docket Nos. 41; 42). After receiving leave of court to file nunc pro tunc, they submitted a concise statement of material facts and appendix two days later on February 22, 2019. (Docket Nos. 51; 52). Montecalvo filed his Objections and Brief in Opposition to their motion on April 15, 2019 along with a cursory motion to amend complaint which does not include a proposed third amended complaint. (Docket Nos. 66; 67; 70). North Franklin Township and Chief Fox filed their Reply and opposition to the motion to amend on April 29, 2019. (Docket Nos. 77; 78). The motion to dismiss is now fully briefed and ripe for disposition.


         As Plaintiff is proceeding pro se, the factual allegations in his complaint are to be construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must “‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). To survive a Rule 12(b)(6) challenge, a plaintiff's “‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “Thus, ‘only a complaint that states a plausible claim for relief survives a motion to dismiss.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

         Although the Court must accept the allegations in the complaint as true, “‘[it is] not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.'” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citingTwombly, 550 U.S. at 555). Instead, the plaintiff must plead facts which permit the court to make a reasonable inference that the defendant is liable. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556-57. Additionally, while courts deciding motions to dismiss “generally consider only the allegations contained in the complaint, exhibits attached to the complaint, and matters of public record, ” they may also consider an ...

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