Kocher v. Larksville Borough, CIVIL ACTION NO. 3:CV-11-2053

• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
• Writing for the Court: A. Richard Caputo
• Parties: SCOTT E. KOCHER, Plaintiff, v. LARKSVILLE BOROUGH, et al., Defendants.
• Docket Number: CIVIL ACTION NO. 3:CV-11-2053
• Decision Date: 20 February 2013

SCOTT E. KOCHER, Plaintiff,
v.
LARKSVILLE BOROUGH, et al., Defendants.

CIVIL ACTION NO. 3:CV-11-2053

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: February 20, 2013

(JUDGE CAPUTO)
MEMORANDUM

Presently before the Court is Defendants Larksville Borough, Joseph Zawadski, Tony Kopko, and John Pekarovsky's (collectively "Defendants") Motion for Summary Judgment. (Doc. 56.) Plaintiff Scott E. Kocher, a former Larksville Borough police officer, claims that he was retaliated against in violation of his First Amendment rights, deprived of a protected Fourteenth Amendment liberty interest, defamed, and cast in a false light following a confrontation with the Borough Mayor in August 2010. Because Kocher did not speak as a citizen on a matter of public concern following the confrontation, his First Amendment retaliation claim fails. Furthermore, since Individual Defendants were not personally involved in the publication of any stigmatizing material, and any dissemination was not the result of an act of a Larksville Borough policymaker or pursuant to a Borough policy or custom, the Fourteenth Amendment liberty interest claim also fails. And, because summary judgment will be granted to Defendants on all claims over which the Court has original jurisdiction, supplemental jurisdiction over the remaining state-law claims will be declined to be exercised, and the defamation and false light invasion of privacy claims will be dismissed without prejudice.

I. Background

A. The Parties

Plaintiff Scott E. Kocher ("Kocher") was employed as a part-time police officer for Larksville Borough from 2004 through September 2010. (Doc. 57, Defs.' Statement Material

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Facts, "Defs.' SMF," ¶ 1.; Doc. 75, Pl.'s Answer Statement Material Facts, "Pl.'s SMF," ¶ 1.) Kocher served as a patrol officer when he was terminated in 2010. (Kocher Dep., 44:9-11.)

Defendant Joseph Zawadski ("Zawadski") has been the elected Larksville Borough Mayor since 2010. (Defs.' SMF, ¶ 2.) Defendant Tony Kopko ("Kopko") served as the Larksville Borough Police Chief from 1997 through the Spring of 2012. (Id. at ¶ 4.) Defendant John Pekarovsky ("Pekarvosky") was a member of the Larksville Borough Council at the time of Kocher's discharge from employment. (Id. at ¶ 3.)¹ Defendant Larksville Borough is a municipal corporation located at 211 East State Street, Larksville, Pennsylvania. (Id. at ¶ 5.)

B. Larksville Borough Police Department Procedures

In 2010, patrol officers reported to Detective John Edwards ("Edwards"), Assistant Chief of Police Kofchak, or Kopko. (Kocher Dep., 44:3-15, Ex. 1.) Kofchak would then report to Kopko. (Id. at 44:16-18.) Kopko, in turn, would report to the Mayor. (Id. at 44:19-24.)

The "Larksville Police Department Policies and Operating Procedures" identify certain job functions a Larksville Borough patrolman performs. (Kocher Dep., Ex. 1.) For example, under the Operating Procedures, a patrolman's duties "include but are not limited to," "answer[ing] all complaints and calls for services," "investigat[ing] crimes, mak[ing] full and detailed reports of the same," and "prepar[ing] neat thorough and concise reports of all police activity." (Id.) The duties identified in the Operating Procedures were an accurate representation of Kocher's duties during the time he was employed with Larksville Borough. (Id. at 19:4-12.) While employed with Larksville Borough, Kocher would prepare police reports after incidents occurred. (Id. at 20:8-14.) An incident involved anything that happened in front of a police officer that would require a call to Luzerne County 911. (Id. at

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20:16-17.) Kocher would prepare reports for instances of arrests, and he would also prepare reports on occurrences where no arrests were made. (Id. at 20:18-24.)

In preparing an incident report while employed by Larksville Borough, Kocher would identify the time, date, area, and location of the incident. (Id. at 26:5-6.) The report would also contain a narrative of the incident. (Id.) Additionally, Kocher would enter his badge number when completing an incident report. (Id. at 74:8-10.)

A Larksville Borough Police Department incident report would be prepared through Alert, a computer program used by the Borough. (Id. at 28:7-12.) Incident reports were generated on computers that were located in the police station. (Id. at 29:10-30:8.) The reports could only be generated on these computers. (Id.) Reports could not be prepared on a laptop computer or an officer's home computer. (Id.) To access Alert, the user was required to enter a password, which prevented members of the public from using the Alert system. (Id.) After an incident report was completed, it would be printed out and put in a basket for filing with other incident reports. (Id. at 30:7-13.)

C. The August 13, 2010 Confrontation

On August 13, 2010, Zawadski learned that citizens were parking illegally during a church bazaar. (Zawadski Tr., 197:4-6.) Kocher, who was on-duty at the time, was called to the bazaar to handle the parking issue around 7:00 p.m. (Kocher Dep., 68:13-15.) Kocher responded that he was busy handling another call. (Id. at 69:1-2.) Kocher ultimately arrived at the bazaar at approximately 9:00 p.m. (Id. at Ex. 5.)

Zawadski testified that he asked to speak with Kocher after he arrived at the bazaar (Zawadski Jr., 204:8-18.) The two men walked behind an ambulance, at which time Zawadski questioned Kocher as to why it took over an hour to get to the bazaar. (Id.) Kocher indicated that he was busy in Plymouth. (Id.) Although Zawadski may have pointed his fingers at Kocher, he never made contact with him. (Id.) Father Jerry approached

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Zawadski and Kocher while they were speaking and asked if he could help, but Zawadski responded that it was a personal matter. (Id. at 205:21-206:7.)

According to Kocher, at approximately 9:02 p.m., officers were dispatched to the bazaar for a fight in the parking lot. (Kocher Dep., Ex. 5.) As he pulled up to the bazaar, he observed Zawadski performing what looked like a traffic stop. (Id.) Kocher proceeded to the area of the fight. (Id.)

Kocher was standing at the entrance to the bazaar with Michael Thomas, Jeffrey Gibson, Sean Riley, Joseph Yosh, and Susan Stevenson when Zawadski approached and directed Kocher to speak with him. (Id.) The two men moved a few feet away. Zawadski, with his finger pointed to Kocher's chest, told Kocher that he was the boss and to follow his orders. (Id.) Zawadski also stated to Kocher that charges were going to be brought against him. (Id.) During the encounter, Zawadski made physical contact with Kocher. (Id. at 85:1-2.)

Many bazaar attendees witnessed the encounter. (Id. at Ex. 5.) Kocher stated that the confrontation escalated to the point that the church priest and Officer Thomas came between Kocher and Zawadski. (Kocher Dep., 62:21-24.) Everything was broken up, and the encounter ended with Kocher and Zawadski shaking hands. (Id. at Ex. 5.)

Later, while still at the bazaar, Kocher informed Kopko, who was off-duty at the time, about the confrontation. (Kocher Dep., 62:24.) Kopko told Kocher that Zawadski should have been arrested. (Id. at 62:25-63:7) Kopko further instructed Kocher to cover himself. (Id. at 78:8-9.) Kocher documented the encounter in a written incident report (the "Incident Report") based on his conversation with Kopko. (Id.) Kocher also prepared the Incident Report because he feared that he would be terminated as a result of the confrontation. (Id. at 62:25-63:7.) After he completed the Incident Report, he printed out two copies. (Id. at 78:16-79:4.) Kocher kept one copy for himself. The other copy was placed in the basket

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with the other incident reports. (Id.) Zawadski saw the Incident Report after it was placed in the filing basket. (Zawadski Jr., 193:10-19.)

Kocher also spoke with Edwards about his encounter with Zawadski. (Kocher Dep., 89:15-91:2.) Like Kopko, Edwards advised Kocher to prepare an incident report. (Id. at 90:15-19.) Edwards also told Kocher that Zawadski should have been arrested. (Id. at 90:10.)

The day after the confrontation, Kocher was contacted by Pekarovsky. (Id. at 91:5-92:23.) Pekarovsky told Kocher that Zawadski is the boss and to follow his orders. (Id. at 92:6-10.)

D. Events Preceding Kocher's Termination

Following the August 13, 2010 confrontation, a series of events occurred leading to Kocher's discharge.

First, Kopko determined that Kocher inaccurately documented his availability to report to the bazaar on August 13, 2010. Kopko learned about Kocher's encounter with Zawadski on August 13, 2010. (Kopko Tr., 62:11-64:2.) The next day, Kopko reviewed the Incident Report prepared by Kocher. He believed Kocher acted properly. (Id. at 63:12-15.) Later, however, Kopko became aware that the Borough's computers were missing times for 911 calls. (Id. at 64:14-22.) Kopko directed Edwards to gather information relating to the missing calls. (Id. at 64:3-11.) Kopko reviewed the 911 sheets obtained by Edwards and determined that Kocher's reported times were off. (Id. at 63:18-20.) Although Kocher's Incident Report reflected that he was busy the entire...