871 F.2d 331 (3rd Cir. 1989), 88-1634, Rose v. Bartle

Docket Nº:ROSE, Joseph, Appellant in No. 88-1634
Citation:871 F.2d 331
Case Date:March 20, 1989
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 331

871 F.2d 331 (3rd Cir. 1989)

ROSE, Joseph, Appellant in No. 88-1634


BARTLE, Paul, Asher, Robert, Smyth, Joseph A. Jr., Goodman,

Bert, Vance, Oscar, Montgomery County, and

Republican Party of Montgomery County.

(D.C.Civ. No. 86-6255).

REED, Trudy W., Appellant in No. 88-1646


BARTLE, Paul B., Banning, Rita C., Demaioribus, James R.,

collectively as the Salary Board of Montgomery County,

Bartle, Paul, individually, Asher, Robert, Smyth, Joseph A.,

Jr., Goodman, Bert, Vance, Oscar, Montgomery County,

Republican Party of Montgomery County, Commissioners of the

County of Montgomery (D.C.Civ. No. 87-6405).

HILL, Frederick B.


BARTLE, Paul, Asher, Robert, Smyth, Joseph A., Jr., Goodman,

Bert, Vance, Oscar, Montgomery County, and

Republican Party of Montgomery County

(D.C. Civil 86-6963).

HILL, Frederick B.


BARTLE, Paul, Asher, Robert, Smyth, Joseph A., Jr., Goodman,

Bert, and Republican Party of Montgomery County,

Montgomery County (D.C. Civil 87-3927).

Appeal of Frederick HILL,

KOLIMAGA, Walter, Appellant in No. 88-1653


BARTLE, Paul, Asher, Robert, Montgomery County, and

Republican Party of Montgomery County (D.C. Civil

No. 87-0804).

Nos. 88-1634, 88-1646, 88-1650 and 88-1653.

United States Court of Appeals, Third Circuit

March 20, 1989

Page 332

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Argued Dec. 13, 1988.

Page 334

Adam Thurschwell (argued), David Kairys, Kairys & Rudovsky, Philadelphia, Pa., for Rose, Joseph, Appellant No. 88-1634.

Randolph A. Scott (argued), Randolph Scott Associates, Warrington, Pa., for Reed, Trudy W., Appellant No. 88-1646.

Richard J. Lyons (argued), Connolly, Candor & McAndrews, Doylestown, Pa., for Frederick Hill, Appellant No. 88-1650.

James E. Beasley, Thomas A. Sprague (argued), Beasley, Casey, Colleran, Erbstein, Thistle, Kline & Murphy, Philadelphia, Pa., for Kolimaga, Walter, Appellant No. 88-1653.

John F. Smith, III, Mark J. Levin (argued), Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for Montgomery County & Paul Bartle.

Mary MacNeil Killinger, Dist. Atty's Office, Norristown, Pa., for Montgomery County.

Daniel J. Ryan, Douglas J. Kent (argued), LaBrum and Doak, Philadelphia, Pa., for Robert Asher, et al.

Charles W. Craven, Marshall, Dennehey, Warner, Coleman, & Goggin, Philadelphia, Pa., for Robert Asher.

Gregory T. Magarity (argued), Debra Klebanoff, Stanley R. Scheiner, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Bert Goodman, et al.

David H. Marion (argued), Edward T. Ellis, David Zalesne, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for Joseph A. Smyth, Jr.

Before GIBBONS, Chief Judge, and GREENBERG and ROSENN, Circuit Judges.


GREENBERG, Circuit Judge.

Table of Contents

  1. Background 335 A. The Underlying Facts 335 B. The Development of this Litigation 337 II. Procedural Challenge 329 III. Section 1983 Claims 343 A. Prosecutorial Immunity 343 1. Subornation of Perjury ..................... 343 2. Disclosure of Secret Grand Jury Information 345 B. Statute of Limitations 347 1. Malicious Prosecution ...................... 348 2. False Arrest and Abuse of Process .......... 350 3. Conspiracy claims .......................... 352 C. Probable Cause 352 IV. RICO Claims 355 A. Section 1962(a) 356 B. Section 1962(c) 358 1. Person/Enterprise Identity ................. 358 2. Racketeering Activity ...................... 359 3. Pattern of Racketeering Activity ........... 363 C. Section 1962(d) 365 V. Instructions on Remand 367 This appeal consolidates the claims of four separate appellants whose complaints are grounded in the same alleged misconduct of the defendants. The plaintiff-appellants were employed in the office of the sheriff of Montgomery County, Pennsylvania.

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Frederick Hill was the elected sheriff, Joseph Rose the chief deputy sheriff, Walter Kolimaga a lieutenant, and Trudy W. Reed the office manager. Rose, Kolimaga, and Reed were discharged and Hill was defeated in his reelection bid after a grand jury presentment against Michael Rebar, a captain in the sheriff's office, named them in connection with Rebar's alleged criminal activity. Thereafter, additional presentments recommended criminal charges against each of the plaintiffs.

The defendants are individuals who at the times material to this action held public and party offices in Montgomery County, in the Republican Party organization and in the county itself. Paul Bartle was the Chairman of the Montgomery County Commission, the county governing body, Robert Asher was the Chairman of the Republican Party, Joseph A. Smyth, Jr. was the district attorney, Bert Goodman was an assistant district attorney, and Oscar Vance was the chief of Montgomery County detectives. Bartle along with Rita C. Banning and James R. DeMaioribus constituted the Salary Board of Montgomery County. These individuals and the Republican Party of Montgomery County, the salary board, the commissioners of the county, and the county, were named as defendants by one or more of the plaintiffs.

The plaintiffs allege that the presentments were politically motivated and illegally obtained to force their resignations or provide pretexts for their dismissal and that the defendants engaged in a conspiracy to violate their civil rights. Consequently, plaintiffs filed complaints asserting claims under either or both 42 U.S.C. Sec. 1983 and 18 U.S.C. Secs. 1961-68 (RICO), in addition to pendent state law claims. The plaintiffs' complaints were dismissed by Judge Giles of the United States District Court for the Eastern District of Pennsylvania in four separate summary judgment orders.

On appeal, the plaintiffs contend that the district court failed to follow the proper procedures for granting summary judgment. In addition, they argue that their complaints adequately alleged section 1983 and RICO claims and that the defendants failed to demonstrate that there was no genuine dispute as to any material issue of fact and thus were not entitled to summary judgment.

We have appellate jurisdiction under 28 U.S.C. Sec. 1291. The district court had jurisdiction over the section 1983 claims, the RICO claims and the pendent state law claims under 28 U.S.C. Sec. 1343, 18 U.S.C. Sec. 1964(c), and 28 U.S.C. Sec. 1331.

In his memorandum opinions Judge Giles stated that he notified the parties that the then pending "motions to dismiss [filed by defendants] would be considered as motions for summary judgment." Rose v. Bartle, 692 F.Supp. 521, 524 (E.D.Pa.1988); Reed v. Bartle, No. 87-6495, slip op. at 3 (E.D.Pa. July 22, 1988); Hill v. Bartle, Nos. 86-6963, 87-3927, slip op. at 3 (E.D.Pa. July 22, 1988); Kolimaga v. Bartle, No. 87-0804, slip op. at 2 (E.D.Pa. July 22, 1988). We conclude, however, that the notice was ambiguous and that, consequently, the plaintiffs were denied adequate opportunity to oppose the motions. We must, therefore, reverse the summary judgments unless there was no set of facts on which the plaintiffs could have prevailed. Under this standard we find that some of the plaintiffs' counts were properly dismissed while others were not. Accordingly, we will affirm in part, reverse in part, vacate in part and remand for further proceedings.


  1. The Underlying Facts

    An election at which Hill, the incumbent sheriff was expected to run for reelection, was scheduled for November 8, 1983, in Montgomery County. Prior thereto on July 11, 1983, Smyth, Goodman, and Vance instituted grand jury proceedings to investigate allegations of misconduct in the sheriff's office.

    The grand jury issued an interim presentment in August 1983, recommending charges against Michael Rebar, a captain in the sheriff's office. This presentment,

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    like one later returned, detailed the testimony given in support of the conclusions reached. See Rose app. at 172. The criminal charges included 67 counts of "macing", defined by 25 Pa.Stat.Ann. Sec. 2374 as the coercive solicitation of political contributions from public employees by public officers or members of political committees. Rebar eventually pleaded guilty to 48 counts of macing. See Rose app. at 261, 570. The presentment also recommended that charges be brought for four counts of conducting an illegal lottery as a funding mechanism for the macing efforts. These charges were brought and Rebar eventually pleaded guilty to them. See Rose app. at 261, 570. The grand jury recommended additional counts of obstructing administration of law or other government functions and hindering apprehension or prosecution. See Rose app. at 261.

    The August 1983 presentment also named Hill, Rose, Kolimaga, and Reed in connection with Rebar's alleged criminal activity and as a result Rose, Kolimaga, Reed, and Rebar were fired in August 1983. Hill was defeated in his bid for re-election after the Republican Party failed to endorse him. See Hill Amended Complaint p 49; see also Reed Amended Complaint p 27-28. Hill, Rose, Kolimaga, and Reed allege that they did not direct Rebar's activities but that Rebar, a Republican committeeman, acted on behalf of the defendants. See Rose app. at 94, 570-72. The defendants maintain that Rebar's activities were directed by Hill, Rose, Kolimaga, and Reed as a means to finance Hill's reelection campaign.

    In November 1983, the grand jury returned a second presentment recommending charges against Hill, Rose, Kolimaga, and Reed. See Rose app. at 87-171. Consequently, Vance swore out a criminal complaint and an affidavit of probable cause charging each of the plaintiffs with 450 counts of macing and charges related to macing. 1 See, e.g., Rose app. at 264-66.

    Criminal complaints were issued against the plaintiffs in March 1984 following which District Justice John Murray...

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