Kulwicki v. Dawson

Decision Date02 July 1992
Docket Number91-3394,No. 91-3394 and T,No. 91-3358,Nos. 91-3358,91-3358,91-3394 and T,s. 91-3358
Citation969 F.2d 1454
PartiesJoseph F. KULWICKI, III and Judith Ann Kulwicki, his wife v. John M. DAWSON, Appellant atJack L. Loutzenhiser and Robert J. Mullen, Appellants athe City of Meadville, a Municipal Corporation, and Crawford County, a Municipal Corporation.
CourtU.S. Court of Appeals — Third Circuit

Sean J. McLaughlin, Richard A. Lanzillo (argued), Knox McLaughlin Gornall & Sennett, P.C., Erie, Pa., for appellant John M. Dawson.

John W. Jordan, IV (argued), Thomas P. McGinnes, Grigsby, Gaca & Davies, P.C., Pittsburg, Pa., for appellants Jack L. Loutzenhiser and Robert J. Mullen; City of Meadville.

James A. Wood, Israel & Wood, Pittsburgh, Pa., for Crawford County.

Stanley M. Stein (argued), Thomas P. McDermott, Feldstein Grinberg Stein & McKee, Pittsburgh, Pa., for appellees Joseph F. Kulwicki, III and Judith Ann Kulwicki.

Before SLOVITER, Chief Judge, SCIRICA and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

Appellants Dawson, Loutzenhiser and Mullen challenge the district court's denial of their individual claims of official immunity. Dawson is the District Attorney for Crawford County, Pennsylvania. Loutzenhiser and Mullen are both employed by the City of Meadville Police Department, Loutzenhiser as a Detective Sergeant and Mullen as the Chief of Police.

Appellee Kulwicki, a local attorney, brought suit against the three men under 42 U.S.C. § 1983, alleging that they conspired to deprive him of constitutional rights when they unsuccessfully charged him in the fall of 1988 with criminal conspiracy and attempt to deal in infant children. 1 See 18 Pa. Cons.Stat.Ann. §§ 903, 901(4305) (1983). Kulwicki alleges he suffered additional constitutional affront from the appellants' solicitation of false witness testimony in support of the charges, false testimony at trial, and publication of the criminal charges in the local media.

Dawson filed a motion to dismiss and/or for summary judgment under Fed.R.Civ.P. 12(b)(6), raising the defense of absolute immunity. 2 Appellants Loutzenhiser and Mullen submitted motions to dismiss under Fed.R.Civ.P. 12(b)(6), asserting qualified immunity. The trial court denied each of their claims. We will affirm in part and reverse in part.

I. Procedural History

Kulwicki's claims arise out of an unsuccessful criminal prosecution against him in Pennsylvania state court, based upon his alleged role in a conspiracy to deal in infant children. He was charged with criminal conspiracy to deal in infant children on October 13, 1988, and with an attempt to deal in infant children on December 19, 1988. On May 19, 1989, after a five-day jury trial, a jury acquitted Kulwicki of the criminal charges. The jury deliberated for less than one hour before coming to its verdict. Commonwealth v. Joseph F. Kulwicki, III, Crim. No. 1988-674 (C.P. of Crawford County) (1988).

After he was acquitted, Kulwicki initiated the present action in federal district court. His amended complaint sets forth ten separate violations of federal and state law:

1. "[D]eliberate and total indifference to [Kulwicki's] Constitutional rights," in violation of 42 U.S.C. § 1983;

2. Malicious prosecution under the laws of the Commonwealth of Pennsylvania;

3. Intentional infliction of emotional distress;

4. Defamation;

5. Loss of income, earnings and earning capacity;

6. "[W]illful, wanton, and oppressive" actions deserving of punitive damages;

7. Conspiracy to deprive [Kulwicki] of his "right to freedom from unlawful arrest," in violation of 42 U.S.C. § 1983;

8. State law negligence against two municipal defendants; 3

9. By Kulwicki's wife, a loss of consortium; and

10. A request for attorney's fees under 42 U.S.C. §§ 1983 and 1988.

Dawson filed a motion to dismiss and/or for summary judgment. Loutzenhiser and Mullen each filed motions to dismiss. All alleged, inter alia, official immunity from suit. Dawson claimed absolute immunity as a prosecutor; Loutzenhiser and Mullen, as public officials, raised the defense of qualified immunity. With the permission of the court, all three defendants submitted supplementary materials in support of their motions. The trial judge, ruling as on motions to dismiss, denied the motions on May 22, 1991. Kulwicki v. Dawson, No. 90-127 (W.D.Pa. May 22, 1991) (mem. op.). Each official filed a timely notice of appeal, and the appeals were consolidated by an order of this court dated June 25, 1991.

II. Factual Background

The following statement of facts is taken from the complaint and its attachments. Dawson and Kulwicki are Pennsylvania attorneys and long-time political rivals. Dawson, a Republican, is the District Attorney for Crawford County, Pennsylvania. Kulwicki has been the Democratic nominee for the District Attorney position in the past.

At the time criminal charges were filed against Kulwicki, he was facilitating the adoption of a baby girl for two clients, John and Christine Gustafson. In short, Kulwicki initiated formal adoption proceedings on behalf of the Gustafsons, but while the paperwork was being completed, the natural mother, Jill Marvin, was arrested for trying to sell her child to another couple. Kulwicki was charged soon after Marvin's arrest.

According to the complaint, Marvin's child was conceived of a rape. During her pregnancy, Marvin decided to give the baby up for adoption. Her doctor contacted the Gustafsons regarding possible adoption, and the Gustafsons called Kulwicki for legal advice. Marvin gave birth to a daughter on September 7, 1988. The following day, Kulwicki and the Gustafsons met with Marvin in the hospital to discuss the adoption. No expenses were mentioned in the initial meeting. Afterward, Marvin's doctor phoned Kulwicki and suggested, allegedly in the interest of speeding the adoption, that the Gustafsons offer to pay some of Marvin's hospital expenses. With Kulwicki as a mediator, the Gustafsons agreed to pay Marvin $5,000, contingent upon court approval of the adoption. On September 9, 1988, Marvin signed a form temporarily releasing custody of the child, and the Gustafsons took possession of the child. Kulwicki then discussed the adoption with an attorney at the local Children and Youth Service Agency, filed an adoptors' report with the state Orphans' Court, and paid a $200 adoption investigation fee to the Crawford County Court of Common Pleas. He also made an appearance before the Court of Common Pleas to request an advisory opinion on acceleration of the adoption proceedings.

On September 26, 1988, Marvin demanded the return of her child. Apparently, she had negotiated with another couple, the Ferraros, to exchange the baby for a fee of $7,000. Marvin and the Ferraros planned to conceal this transaction from the court. The Gustafsons relinquished custody of the child on September 27, 1988.

On September 28, according to Kulwicki, the Gustafsons complained to Dawson and/or a member of his staff about Marvin's treatment of her child. They alleged that the child was removed from their custody for improper purposes. Thereafter, Marvin was arrested and charged with attempting to deal in infant children, and the Gustafsons, under a grant of immunity, underwent intensive interrogation by members of Dawson's office about their dealings with Marvin and Kulwicki.

Dawson's interrogation of the Gustafsons allegedly centered on Kulwicki. Dawson told the Gustafsons that Kulwicki had engaged in criminal behavior regarding the adoption; he advised them to discharge Kulwicki as their attorney, and to obtain new counsel. Finally, he told them that he intended to prosecute Kulwicki criminally. Loutzenhiser allegedly participated in the interrogation. Neither Dawson nor Loutzenhiser made a report of the questioning. The Gustafsons subsequently terminated their relationship with Kulwicki.

Dawson then advised Loutzenhiser to conduct an investigation into Kulwicki's handling of the Gustafson adoption. Loutzenhiser interviewed Kulwicki, but did not keep a log of the discussion. According to Kulwicki, Loutzenhiser did not interview Marvin, nor did he discuss the Marvin adoption with the Court of Common Pleas or the Child and Youth Service Agency, both of whom Kulwicki had involved in the Gustafson proceedings. Nonetheless, on October 13, 1988, Loutzenhiser filed a criminal complaint against Kulwicki for conspiring to deal in infant children.

The following day, allegedly before Kulwicki had been served with the complaint, Loutzenhiser and/or Dawson caused the publication of the criminal charges in morning newspapers up to 40 miles away. Loutzenhiser, allegedly at Dawson's direction, held a press conference in order to comment on the charges against Kulwicki. As a result, a description of the charges was broadcast on the 5 p.m. news by a local radio station, and later by two regional television stations. The local newspaper refused Kulwicki's request to file a rebuttal.

On October 13, the day the criminal complaint was filed, Dawson recused himself from Kulwicki's prosecution. Dawson alleged that he wanted to "avoid any appearance of bias or prejudice" against Kulwicki, and so secured the appointment of a special prosecutor, Linda Barr, from a neighboring District Attorney's office. Soon after Barr's appointment, Loutzenhiser filed a second criminal complaint against Kulwicki, charging him with the attempt to deal in infant children. Despite the additional complaint, however, Barr decided to file a motion to withdraw all pending charges against Kulwicki on May 8, 1989. She apparently published her decision in the local paper on May 10, 1989, five days before the scheduled start of Kulwicki's trial.

Loutzenhiser spotted the article and contacted Dawson, who then prepared a letter to Barr regarding a confession Kulwicki had allegedly made to Dawson before Kulwicki's arrest the previous October. The letter stated that, in a...

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