Kossler v. Crisanti
| Decision Date | 21 April 2009 |
| Docket Number | No. 06-3241.,06-3241. |
| Citation | 564 F.3d 181 |
| Parties | Michael KOSSLER, Appellant v. Steven CRISANTI; Donzi's Bar. |
| Court | U.S. Court of Appeals — Third Circuit |
Timothy P. O'Brien, Pittsburgh, PA, for Appellant.
Bryan Campbell, Pittsburgh, PA, for Appellee, Steven Crisanti.
Michael Fitzpatrick, Carnegie, PA, for Appellee, Donzi's Bar.
Nancy Winkelman, Schnader Harrison Segal & Lewis, Philadelphia, PA, for Amicus Appellant, ACLU PA.
Before: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN and ALDISERT, Circuit Judges.
This appeal raises a discrete issue involving a malicious prosecution claim brought under 42 U.S.C. § 1983 and Pennsylvania state law: Whether a conviction for disorderly conduct and a contemporaneous acquittal for aggravated assault and public intoxication under the relevant Pennsylvania statutes constitute a favorable termination of the state criminal proceeding against the plaintiff whose intentional physical contact against a municipal police officer underlies all three offenses. For the reasons that follow, under this particular factual scenario, the plaintiff's criminal proceeding did not end in his favor. Accordingly, we will affirm the order of the District Court granting summary judgment, as well as its order denying reconsideration.
At approximately 11:00 p.m. on November 11, 2001, thirty-nine-year-old X-ray technician Michael Kossler, his friend John Trelecki, and one other friend arrived at Donzi's Bar in Pittsburgh's Strip District and socialized, talked, walked around, and danced. While there, Kossler had a couple of beers but claims not to have consumed any alcohol prior to arriving at Donzi's.
Steven Crisanti, a City of Pittsburgh police officer, was working an off-duty detail, or secondary employment position,1 that night at Donzi's, where he had worked for about two years. With the exception of not wearing his official police baseball cap, Crisanti was dressed in his full police uniform. These secondary employment officers were paid in cash each night by Donzi's parent corporation.
Kossler and Trelecki left Donzi's at approximately 2:00 a.m. Upon exiting the bar, the two men walked up a ramp toward a parking lot located next to Donzi's entrance. They had not yet arrived in the parking lot when a fight broke out on the sidewalk at the top of the ramp. When the fight started, Crisanti was standing in the parking lot.
Crisanti and Kossler provide different accounts of what occurred next. According to Crisanti, when he tried to go to break up the fight, Kossler grabbed him from behind and twisted him around. Crisanti responded by pushing Kossler away and ran toward the fight, but Donzi's security had already broken it up before Crisanti reached it. According to Trelecki, he and Crisanti were friends, and he had tapped Crisanti on the back to let him know that he was going to help him in breaking up the fight. Kossler confirms Trelecki's version of the events by stating that he was not the one who touched or grabbed Crisanti because he was standing near the valet stand several feet away waiting for his car.
With respect to what happened after the fight ended, Crisanti states that he approached Kossler to ask why Kossler had grabbed him and to warn Kossler not to touch a police officer again. At that point, Kossler became irate, "came at" Crisanti, and bent his middle finger and forefinger completely back on Crisanti's left hand. While Crisanti tried to pull his fingers free, he grabbed his pepper spray with his other hand and sprayed Kossler, at which point Kossler released Crisanti's left hand.
Kossler, in turn, states that Crisanti was yelling "in a loud, screaming, irate voice" that Kossler should not have touched him. Crisanti also pointed his finger in Kossler's face and forced Kossler to back up. Afraid that he would be slapped or punched, Kossler told Crisanti that he had recently undergone surgery on his nose and asked Crisanti: "[P]lease, get your hand out of my face." When Crisanti touched Kossler's nose, Kossler "moved" or "pushed" Crisanti's hand away in a non-violent manner. Then Crisanti sprayed Kossler, and handcuffed and arrested him.
Following the incident, Crisanti completed and filed a City of Pittsburgh Bureau of Police Offense / Incident Report, which identified Kossler as the aggressor and recounted:
Kossler was charged with the first-degree felony of aggravated assault and the summary offenses of disorderly conduct and public intoxication. Crisanti's police report listed "A.A. 2702(a)(2), 5503 Disorderly, Public Intox 5505" to denote the Pennsylvania statutory provisions covering each of the offenses charged. On November 21, 2001, Kossler appeared for a preliminary hearing before a state court magistrate. Although only portions of the hearing transcript are contained in the record, counsel at oral argument stated that it was during this hearing that Kossler's aggravated assault charge was reduced from the first-degree felony under section 2702(a)(2) to the second-degree felony under section 2702(a)(3).
In a non-jury trial before Pennsylvania Court of Common Pleas Judge Robert E. Colville on July 18, 2002, Kossler was found not guilty of aggravated assault and public intoxication, but was found guilty of disorderly conduct and fined one hundred dollars. Judge Colville explained:
"There were an awful lot of misperceptions going on that evening in the parking lot. Basically, there were a lot of people moving around and there was a lot of involvement and anger and people were drinking, and the consensus of that is nobody knows precisely exactly what happened.
My own personal belief in this, I don't see any misdemeanors or any felonies, it's not an aggravated assault, it isn't, simply isn't.
I'm going to find him guilty of a summary offense of DC.
Basically, you were in the wrong place, wrong time and the officer addressed you, when he came over, whether he was mistaken or not, when he's putting his hand up he's obviously putting himself at risk trying to break up what he feels — it may well have been your friend who touched him but he doesn't have time seeing which one of you did it, he's going to respond, he just is, and he's going to be upset, whether appropriate or not, having been in his uniform, and having done this I understand why he did what he did, he was upset, that's why he came to you, he doesn't recognize you, that's another fact, but at this point you have to respond, not by taking — hitting his hand away, but it's obvious he's put out, he's the only one there that hasn't been drinking all night, and he's the only one that has to be responsible.
I think he acted reasonable; I think it got out of hand, but the charges don't fit the crime. I mean, you put yourself in a situation whereby striking the officer's hand away from him, that alone I'm going to find you summary [sic] of disorderly conduct. I'm going to charge you a hundred bucks."
On May 13, 2003, Kossler filed this lawsuit against Crisanti and Donzi's for excessive force, false arrest, and malicious prosecution pursuant to 42 U.S.C. § 1983. The complaint also stated Pennsylvania common law claims against the defendants for assault and battery, false arrest, and malicious prosecution. There was also a § 1983 failure to train claim against Donzi's.
Upon completion of discovery, on August 1, 2005, the District Court granted partial summary judgment in favor of Donzi's on the malicious prosecution and false arrest claims brought under both federal and state law, as well as on the failure to train claim. It denied summary judgment on the other claims, namely the excessive force and assault and battery claims.
On August 23, 2005, the District Court denied Kossler's motion for reconsideration in a separate memorandum opinion. We then denied Kossler's motion for allowance of an immediate interlocutory appeal. Before the remaining counts went to trial, on June 2, 2006, the parties stipulated to the dismissal of those counts with prejudice and the District Court entered an order on June 5, 2006, reflecting this stipulation. Kossler timely appealed what he believed to be the District Court's final judgment, and raised arguments in his merits briefs related only to his malicious prosecution claims.
Following oral argument before a panel of this Court, we determined there was a defect in jurisdiction because of the lack of a final judgment. We informed the parties that the District Court's June 2006 order granted the parties' stipulation only as to the excessive force and assault and battery claims; Kossler's false arrest claim against Crisanti remained open because it was not disposed of by any of the District Court's orders; and the actual "separate final judgment" pursuant to a November 2005 order of the District Court had not been entered. Because these jurisdictional defects were capable of quick resolution, we ins...
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