Pansy v. Preate

Decision Date06 October 1994
Docket NumberCiv. No. 92-778.
Citation870 F. Supp. 612
PartiesJohn A. PANSY, Plaintiff, v. Ernest D. PREATE, Jr., et al., Defendants.
CourtU.S. District Court — Middle District of Pennsylvania



James A. Swetz, Cramer, Swetz & McManus, Stroudsburg, PA, for plaintiff.

Gregory R. Neuhauser, Office of the Atty. Gen., Harrisburg, PA, for defendants.


CONABOY, District Judge.

This is a civil rights action filed by Plaintiff Pansy on June 8, 1992, for compensatory and punitive damages pursuant to the Civil Rights Act of 1979, 42 U.S.C. § 1983, alleging the Defendants, all of whom are employed by the Office of the Attorney General for the State of Pennsylvania, violated his constitutional rights while they acted under the color of state law during the course of an investigation into alleged theft of coins from parking meters. (Doc. No. 1). Plaintiff is also asserting supplemental jurisdiction pursuant to 28 U.S.C. § 1367, in that he alleges state law claims.

The Complaint was answered by the Defendants on July 15, 1992. The action is currently before the Court on the Defendants' Motion for Summary Judgment. The Defendants filed their Motion on December 6, 1993, and their brief in support was filed on December 20, 1993. The Plaintiff filed a Brief in Opposition to the Defendants' Motion. (Doc. No. 59). The Defendants subsequently filed a reply brief. (Doc. No. 78). The Court heard oral argument from both Plaintiff's and Defendants' counsel on April 25, 1994. The Court notes that both sides have submitted numerous documents in support of their briefs. The action is now ripe for review.


Plaintiff John A. Pansy is a resident of 849 Phillips Street, Stroudsburg, Pennsylvania. He is currently a member of the Stroudsburg Police Department and during the course of the investigation which eventually led to this suit was the Chief of Police. The Defendants in this matter are Ernest D. Preate, Jr., the Attorney General for the State of Pennsylvania; John Burfete, Deputy Attorney General; Lois Lichtenwalner, Deputy Attorney General; Michael Crossin, Joseph Farkus, Charles Read, Thomas Gallagher and John Purcell, all of whom are investigative agents for the State Attorney General's Office.

This action arose during Plaintiff's tenure as the Chief of the Borough's Police Department. He was investigated and later arrested by agents of the Pennsylvania Attorney General's Office. Plaintiff was charged with offenses relating to the alleged improper handling of parking meter money.

During the summer of 1990 and throughout the remainder of the year and into the spring of 1991, the State Attorney General's Office conducted an investigation into the reported decline of revenue coming from the parking meters in the Borough of Stroudsburg1. Following the investigation conducted by Defendants Crossin, Farkus, Read, Gallagher and Purcell, along with testimony taken before the Seventh Statewide Investigating Grand Jury, the Grand Jury on April 11, 1991, issued Presentment No. 25, against Plaintiff for violations of the Pennsylvania Crimes Code; Theft by Failure to Make Required Disposition of Funds Received — 18 Pa.Cons.Stat. § 3927 (1973); Theft by Unlawful Taking or Disposition — 18 Pa.Cons. Stat. § 3921 (1973); Receiving Stolen Property — 18 Pa.Cons.Stat. § 3925 (1973) and Dealing in Proceeds of Unlawful Activities— 18 Pa.Cons.Stat. § 5111 (1989).

Hon. G. Thomas Gates, Supervising Judge of the investigating Grand Jury, issued an Order on April 12, 1991, accepting Presentment No. 25 and authorizing the Attorney General's Office to prosecute the Plaintiff as recommended in the presentment. Thereafter, on April 17, 1991, Defendant Crossin filed two criminal complaints and affidavits of probable cause charging Plaintiff with crimes previously indicated.

On the same day, Plaintiff Pansy, with his lawyer, surrendered to law enforcement authorities at the Pennsylvania State Police Barracks at Swiftwater, Pennsylvania. Plaintiff was then fingerprinted and photographed by the Defendants and later brought before the District Justice Henry McCool for an arraignment. The Plaintiff was released on his own recognizance and a preliminary hearing was set for April 26, 1991. The preliminary hearing was held on April 26, 1991, lasting approximately seven (7) hours, and at the conclusion, District Justice McCool determined there was sufficient evidence to bind all criminal charges over for trial.

Due to the nature and notoriety of the case, on November 18, 1991, a jury was selected from Adams County, Pennsylvania, pursuant to an order granting Plaintiff's request for change of venue. The jury was transported to Monroe County to sit and hear the trial which commenced on November 19, 1991 and lasted to December 6, 1991. At the conclusion of the trial, Plaintiff Pansy was acquitted on all criminal charges.

Plaintiff commenced this action approximately seven months after the conclusion of the trial.

In Count I, Plaintiff alleges Michael Crossin, Joseph Farkus and John Purcell violated his constitutional rights when they initiated a criminal proceeding against the Plaintiff without probable cause, and following what the Plaintiff claims was an inadequate and unreasonable investigation. Furthermore, Plaintiff claims Defendants Crossin, Farkus and Purcell maliciously prosecuted him without probable cause, charging them with false arrest and abuse of process. (Doc. No. 1).

In Count II, Plaintiff Pansy alleges Defendants Preate, Burfete and Lichtenwalner gave improper legal advice to Defendant Crossin prompting Crossin to file the criminal complaints against the Plaintiff.

In Count III, Plaintiff alleges the common law torts of Assault and Battery, Intentional Infliction of Emotional Distress, False Imprisonment and constitutional violations for false arrest, excessive force and false imprisonment against Defendants Read, Crossin and Farkus. These allegations stem from the evening of December 12, 1990, when Defendants Crossin, Read and Farkus secured a search warrant from Presiding Judge G. Thomas Gates and executed it at Plaintiff Pansy's residence at 849 Phillips Street, Stroudsburg. Plaintiff alleges the Defendants used excessive force when they executed the search warrant at his home, clearly beyond the scope of their duties.

Finally, in Count IV, Plaintiff alleges that Defendants Gallagher and Purcell failed to adequately train and supervise Defendants Crossin, Farkus and Read in such a way that led to the violation of the Plaintiff's constitutional rights.



In considering a Motion for Summary Judgment, we must ascertain, on the basis of pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, whether or not there are any genuine issues of material fact, and if none, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Schleig v. Communications Satellite Corp., 698 F.Supp. 1241 (M.D.Pa.1988). An issue of material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Incorporated, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The "burden to demonstrate the absence of material fact remains with the moving party regardless of which party would have the burden of persuasions at trial." Levendos v. Stern Entertainment, 860 F.2d 1227, 1229 (3rd Cir.1988). The moving party's "burden" under Rule 56(c), however, is discharged by demonstrating to the Court the absence of evidence to support the non-moving party's case. Trap Rock Industries, Inc. v. Local 825, International Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91 (3rd Cir.1992).

In defending against a Motion for Summary Judgment, the non-moving party may not "rest upon mere allegations, general denials, or ... vague statements ..." Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3rd Cir.1991). If the non-moving party's evidence "is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir. 1992) (quoting Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510). Thus, "while the facts must be viewed in the light most favorable to the nonmoving party and all inferences must be drawn in that party's favor ... there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party". Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3rd Cir.1992).

A. Defendants Crossin, Farkus and Purcell.
1. Malicious Prosecutions.

Plaintiff asserts the Defendants maliciously prosecuted him without probable cause, when, in an abuse of the process, they falsely arrested him and continued the proceeding.

Pennsylvania law requires that in a malicious prosecution claim, a Plaintiff must prove the Defendants (1) instituted the proceedings (2) without probable cause and (3) with actual malice and (4) that the proceedings terminated in favor of the Plaintiff. See Griffiths v. CIGNA Corp., 988 F.2d 457 (3rd Cir.1993) (citing Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (1988)); See also Valenti v. Sheeler, 765 F.Supp. 227 (E.D.Pa.1991). If any of these elements cannot be proven the malicious prosecution claim cannot prevail.

The Defendants do not dispute the fact the criminal proceedings terminated in Plaintiff Pansy's favor. They clearly and rather tenaciously dispute the remaining elements. Specifically, they refute the malice element. Malice includes ill-will in the sense of spite, the use of a prosecution for an extraneous, improper purpose, or the reckless and oppressive disregard of the Plaintiff's rights. Lee v. Mihalich, 847 F.2d 66, 70 (3rd Cir.1988). Malice can be inferred from the absence of probable cause. Kelley v. General...

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    ...litigation ended with summary judgment being entered in favor of the defendants, a result affirmed by the Third Circuit. Pansy v. Preate, 870 F.Supp. 612 (M.D.Pa.1994), aff'd mem., 61 F.3d 896 (3d Cir.1995). (Aff. of James A. Swetz, Esq., Exhibits 1 and Pansy had also brought an action agai......
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