Opinion
Civil Action No. 01-5501
August 12, 2002
MEMORANDUM AND ORDER
Presently before this Court is a Motion to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.C.P. 12(b)(6) filed by Defendants Abington Township ("Township"), Abington Township Police Department ("Police Department"), William J. Kelly, Richard L. Kondon, John Parks, and Anthony Ammaturo (collectively, "Defendants") on December 21, 2001. For the reasons set forth below, upon consideration of the Motion to Dismiss (Document No. 3), Plaintiffs' Answer (Document No. 5), and Defendants' Supplemental Memorandum (Document No. 6), the Court grants in part and denies in part Defendants' Motion to Dismiss the Complaint in the above-captioned action.
BACKGROUND
Plaintiff Antonio Watson was the owner of Plaintiff Tony Tix, Inc., a ticket-selling agency. Plaintiffs allege that Defendants Richard Kondon and John Parks, both police officers for Defendant Police Department, were issued a search warrant for Tony Tix that was based on an affidavit of probable cause prepared and submitted by Kondon and Parks. Plaintiffs allege that Defendants knew at the time that the affidavit contained statements that were false or that were made in reckless disregard for the truth. Upon execution of the warrant, Defendants confiscated Plaintiff Tony Tix's receipts, records, computers, other documents, and office equipment. Defendant Kondon arrested Plaintiff Watson pursuant to an arrest warrant and charged Watson with issuing bad checks. The charges against him were eventually dropped.
Plaintiffs allege, inter alia, a civil conspiracy among all defendants. Accordingly, Plaintiffs refer to Defendants collectively throughout the Complaint, even when alleging specific conduct by individual defendants (i.e., "On February 11, 2000, all Defendants, through Defendants Kondon and Parks and other police officers, executed the search warrant. . . ." Pls.' Compl. ¶ 30). The Court will refer to the parties as Plaintiffs referred to them in the Complaint.
Watson operated Tony Tix in a space owned by and leased from Plaintiff Gerald W. Kelly, the owner of Plaintiff Just Jerry's Inc., d/b/a Scoreboard Restaurant Tavern ("Scoreboard"). Tony Tix and Scoreboard were adjacent to each other. Plaintiffs Kelly and Scoreboard allege that Defendants harassed them because of Kelly's social and professional relationship with Watson, an African American. Plaintiffs allege that Defendants began a systematic practice of sending 15 to 20 uniformed police officers, in marked police cars with flashing lights and without warrants, to Scoreboard for the alleged purpose of investigating underage drinking. During the raids, the police would not allow anyone to enter or leave Scoreboard, and they would check the ID's of all patrons regardless of their age or appearance. There were eight such raids in the course of three years. Defendants also allegedly instructed police officers to sit outside Scoreboard in marked police cars for up to four hours without any requests or complaints from any citizens, and instructed police officers not to patronize Scoreboard while the officers were off-duty because of Scoreboard's involvement in illegal activities. Plaintiffs allege that Defendants' conduct was a substantial factor in causing Kelly's restaurant to go out of business. Plaintiffs further allege that Defendants have never performed such raids at any other drinking establishment at any time.
Plaintiff Robert Kennedy was the employee of Plaintiffs Watson and Tony Tix, Inc. Kennedy alleges that he was arrested by Defendant Anthony Ammaturo, a police officer for Defendant Police Department, pursuant to an arrest warrant alleging that Kennedy made threats against Defendant Kondon. Plaintiffs allege that Ammaturo knew that Kennedy did not make such threats. While in custody, Kennedy heard one of Defendants' agents say that Kennedy "works for that nigger, Watson." Defendants allegedly told Kennedy that they would drop his charges if he would cooperate with them regarding their investigation into Watson's alleged illegal activities, but Kennedy refused to cooperate. A preliminary hearing against Kennedy was scheduled, but Defendants eventually withdrew the charges.
Plaintiffs' Complaint contains four counts. In Count I, all Plaintiffs allege violations by all Defendants under 42 U.S.C. § 1983 of their Fourth, Fifth, and Fourteenth Amendment rights, and under § 1985 for civil conspiracy. In Count II, all Plaintiffs but Kennedy allege defamation, commercial disparagement, and wrongful interference with economic opportunity against all Defendants. In Count III, Watson and Kelly allege malicious prosecution by all Defendants. In Count IV, all Plaintiffs allege intentional infliction of emotional distress against all Defendants.
LEGAL STANDARD
A rule 12(b)(6) motion should be granted only if the court finds that the plaintiff cannot prove any set of facts which entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). In making this determination, the court must accept as true all allegations made in the complaint and all reasonable inferences drawn therefrom, and must view these facts and inferences in the light most favorable to the plaintiff. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).
DISCUSSION
Plaintiffs' Complaint contains four counts against Defendants alleging various federal and state causes of action. The Defendants' Motion to Dismiss challenges the sufficiency of each of Plaintiffs' allegations, as well as raising the affirmative defenses of qualified and sovereign immunity. The Court will address the issues in the order they were presented in the Motion to Dismiss.
A. Count I: Deprivation of Federally Protected Rights Under § 1983
Count I of the Complaint alleges violations of 42 U.S.C. § 1983. Section 1983 provides a cause of action for any citizen who has been deprived of any federal right by a person acting under color of state law. 42 U.S.C. § 1983. To properly state a claim under § 1983, a plaintiff must allege (1) that he was deprived of a federally protected right, and (2) that the deprivation was committed by a state actor. Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997).
The Court finds that Plaintiffs have sufficiently plead that all defendants were state actors in satisfaction of the second requirement of a § 1983 claim. All plaintiffs allege that they were deprived of their rights guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution. The Court will discuss the first element in relation to each Amendment for each of the plaintiffs.
1. Fourth Amendment
To properly state a claim under the Fourth Amendment, a plaintiff must allege that (1) defendant's conduct constituted a search or seizure, and (2) that such conduct was unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989).
a. Search or Seizure
In support of the first element of a Fourth Amendment claim, Plaintiff Tony Tix alleges that it was searched by Defendants Kondon and Parks and that, during the search, various items were seized. Pls.' Compl. ¶ 30. Plaintiffs Watson and Kennedy allege that they were arrested by Defendants. Id. ¶ 32. Plaintiff Scoreboard alleges that Defendants entered Scoreboard for the alleged purpose of investigating underage drinking. Id. ¶ 54. Plaintiff Kelly alleges that during these investigations, no one was allowed to enter or leave Scoreboard. Id. ¶ 55. Furthermore, Defendants do not argue that their conduct did not constitute a search or seizure of each plaintiff, but that the searches and/or seizures were reasonable. The Court finds that Plaintiffs have sufficiently plead that each plaintiff, except for Plaintiff Kelly, was either searched or seized. The Court also finds that an inference may be drawn that Plaintiff Kelly was present in Scoreboard during one or more of the police investigations of Scoreboard, and Kelly was not allowed to leave Scoreboard during such raids. Therefore, the Court concludes that Plaintiff Kelly was seized for purposes of the Fourth Amendment.
b. Unreasonableness
In support of the second element of a Fourth Amendment claim, Plaintiffs argue that the above-mentioned searches and seizures were unreasonable. Plaintiffs Watson, Tony Tix, and Kennedy argue that the warrants used against them were invalid. Plaintiffs Kelly and Scoreboard also argue that the searches of Scoreboard and seizure of Kelly were performed without warrants. Defendants argue that the searches or seizures conducted against each plaintiff were reasonable because the police acted pursuant to valid search and arrest warrants or, in the absence of such warrants, that the police acted in accordance with a recognized exception to the warrant requirement.
i. Plaintiffs Watson, Tony Tix, and Kennedy: Invalid Warrants
Plaintiffs allege that Defendants either knowingly made false statements when submitting their warrant affidavits or that Defendants acted in reckless disregard as to the truth of those statements. Plaintiffs cite Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993), for the proposition that the subject of a search conducted pursuant to such a tainted search warrant may recover damages under § 1983. Plaintiffs state only half of the rule, however, which is that to successfully challenge the validity of a warrant, a plaintiff must show (1) that the affiant knowingly or with reckless disregard for the truth made false statements in the warrant affidavit, and (2) that such statements are necessary to the finding of probable cause. Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).
In Lippay, arrestee filed a § 1983 suit against a narcotics agent following his arrest on drug charges. The district court denied agent's motion for judgment as a matter of law, and the jury found in favor of arrestee on his Fourth Amendment unreasonable seizure claim, which challenged the warrant affidavits prepared by the agent leading to the arrest. On appeal, the Third Circuit reversed and remanded, finding that some of the evidence admitted by the district court was hearsay. In addressing whether to reverse the denial of agent's motion for judgment as a matter of law, the court noted that "[i]n order to prevail on this claim, Lippay needed to satisfy the test enunciated in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) which requires a showing that the maker of the affidavit either stated a deliberate falsehood or acted with a reckless disregard for the truth." Lippay, 996 F.2d at 1501. The Lippay court did not state the second part of the Franks test (see infra discussion of Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) in text following this note) because that issue was not raised on appeal.
Plaintiffs Watson and Tony Tix allege that Defendants Kondon and Parks, at the time they submitted their affidavit of probable cause to search Plaintiff Tony Tix, knew that statements in the affidavit were false or were made in reckless disregard for the truth. Pls.' Compl. ¶ 28. Plaintiff Watson alleges that the warrant for his arrest was based in part on the same statements submitted in the above-mentioned search warrant for Tony Tix. Id. ¶ 32. Plaintiff Kennedy alleges that Defendant Ammaturo, in obtaining a warrant to arrest Kennedy for making threats against Defendant Kondon, made false statements about the alleged threats or was reckless in determining whether such threats were actually made. Id. ¶ 81. Therefore, the Court concludes that Plaintiffs Watson, Tony Tix, and Kennedy have met the first element of the Franks test.
Plaintiffs, however, have failed to allege that the false statements were necessary for the issuance of the warrants. In other words, Plaintiffs do not allege that the warrant affidavits, minus the false statements, would not support a finding of probable cause. On the other hand, although it is not entirely clear from the Complaint, Plaintiffs seem to allege that all of the statements in the warrant affidavits were false or were made in reckless disregard for the truth. An inference may be drawn that if all of the false statements in the affidavits must be disregarded, and all of the statements were in fact false, then there would be nothing left in the affidavits and there could be no probable cause. The Court must view all inferences in favor of the Plaintiffs. Rocks, 868 F.2d at 645. Therefore, the Court will not dismiss the Fourth Amendment claims of Plaintiffs Watson, Tony Tix, and Kennedy.
ii. Plaintiffs Kelly and Scoreboard: Warrantless Search and Seizure
Plaintiffs Kelly and Scoreboard allege that the search of Scoreboard was unreasonable because Defendants entered Scoreboard without a warrant. Pls.' Compl. ¶ 54. The Supreme Court, however, has held that warrantless searches of commercial property are not per se unreasonable. New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). In Burger, the Supreme Court recognized that the necessity for a warrant to search commercial premises is lower than the necessity for a warrant to search one's home because one has a lower expectation of privacy in commercial premises. Id. at 700. The Court held that one's expectation of privacy, and the corresponding necessity for a search warrant, is lower still when commercial property is employed in a closely-regulated industry such as the alcohol-serving industry. Id.
Additionally, the Supreme Court has established a three-part test for determining the reasonableness of a regulatory scheme that allows such warrantless searches. Burger, 482 U.S. at 702-703. However, Plaintiffs in the instant matter do not challenge the regulatory scheme in question and therefore the Court will not address the elements of that test.
Here, Defendants argue that the searches of Scoreboard were conducted at the direction of the Liquor Control Board ("LCB"), and the searches were reasonable. In Pennsylvania, the LCB may inspect the entire licensee's premises during business hours, and cite a licensee for any violation of the Liquor Code or any law of the Commonwealth." In re Catering Club Liquor License Issued to Fulton Post, Inc., 438 A.2d 662, 663 (Pa. Cmmw. 1981). Furthermore, "the uniqueness of the liquor industry, the pervasiveness of government regulation found in this industry, and the broad powers granted to states to regulate the industry under the U.S. Constitution justify warrantless searches of premises serving alcohol." Id. at 664.
Plaintiffs in the instant case do not challenge the reasonableness of the regulatory scheme permitting the LCB to conduct warrantless searches. Plaintiffs do not allege that Defendants lacked probable cause to search Scoreboard or that their seizure of its patrons was unreasonable. All that Plaintiffs allege is that Defendants searched Scoreboard without a warrant, which, by itself, is not enough to establish an unreasonable search in these circumstances. Therefore, the Court finds that Plaintiffs Kelly and Scoreboard have not alleged sufficient facts, which if proved, would establish an unlawful search or seizure. Accordingly, the Court will dismiss the Fourth Amendment claims of Plaintiffs Kelly and Scoreboard.
2. Fifth Amendment
Plaintiffs' Complaint does not specify under which clause of the Fifth Amendment they are seeking relief, although they assert in their Answer to Defendants' Motion to Dismiss that they are claiming a violation of the Takings Clause. In response, Defendants filed a Supplemental Memorandum of Law in Support of Their Motion to Dismiss arguing that Count I of Plaintiffs' Complaint does not allege a Takings Clause violation. Defendants further argue that any property seized by Defendants was a direct result of a criminal investigation and pursuant to valid search warrants.
The Court finds little case law and none in the Third Circuit addressing whether the seizure of property pursuant to a criminal investigation is considered a "taking" for Fifth Amendment purposes. The Fifth Circuit has held that the "[Fifth] [A]mendment's prohibition against the confiscation of property by the government without just compensation is not implicated by the legal seizure of property pursuant to a criminal investigation." Dickens v. Lewis, 750 F.2d 1251, 1255 (5th Cir. 1984) (citing no authority in support of the stated proposition). Such a rule does not address Plaintiffs' contention that the confiscation of property from Tony Tix was an illegal seizure because the search warrants that permitted the seizure were invalid. The United States Claims Court, however, has held that:
A taking within the meaning of the Fifth Amendment occurs when the rightful property, contract or regulatory powers of the government are employed to control rights or property which have not been purchased. No taking claim arises when rights or property have been impaired through unlawful government action. A seizure without probable cause would not be a proper exercise of the government's regulatory power. Therefore, if the DEA did not have probable cause for the seizure, plaintiffs could not sustain a Fifth Amendment taking claim.Golder v. U.S., 15 Cl.Ct. 513 (Cl.Ct. 1988). Under this rule, whether Defendants conduct was lawful or not, Plaintiffs do not have a claim under the Takings Clause. Finally, the Takings Clause itself reads, "[N]or shall private property be taken for public use, without just compensation." U.S. Const. amend. V. Plaintiffs do not allege that Defendants took Plaintiffs' property for public use. Therefore, the Court will dismiss all Plaintiffs' claims under the Fifth Amendment.
3. Fourteenth Amendment
Plaintiffs final claim under § 1983 is that, by allegedly approving and enforcing a policy of depriving Plaintiffs of their civil rights, Defendants Township, Police Department, and Police Chief William Kelly (collectively, "policy-making Defendants") violated the Fourteenth Amendment's guarantee that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const. Amend. XIV, § 1. A cause of action exists for municipal liability when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Moreover, "local governments . . . may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-691. In other words, in order to state a claim for municipal liability under the Fourteenth Amendment, Plaintiffs must allege that the policy-making Defendants adopted and enforced a policy or custom, and that the police violated Plaintiffs' rights while acting pursuant to that policy or custom.
Defendants reassert that Plaintiffs have not suffered any constitutional injuries, and as a result, there can be no municipal liability. In the alternative, Defendants argue that neither the Township nor the Police Department possessed any policy authorizing the violation of constitutional rights by police officers, and that Plaintiffs have failed to allege any particular practice or policy that condones such behavior. On the other hand, Plaintiffs allege that there was an unspoken custom or policy within the Township or Police Department of depriving Plaintiffs of their rights. Plaintiffs assert that the existence of custom may be established by proving that a policy-maker acquiesced to the unlawful conduct of his employees, and the Court agrees. Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989). In order for a municipality to acquiesce or approve of a police practice, they must first have actual or constructive knowledge of the practice. Colburn v. Upper Darby Township, 838 F.2d 663, 672 (3d Cir. 1988).
Here, Plaintiffs allege that prior to 1998, all Defendants began a systematic practice of discriminating against African-American citizens. Pls.' Compl. ¶ 20. To support this allegation, Plaintiffs allege that Plaintiff Watson was the only African-American operating a business in the Township during the alleged events. Id. ¶ 22. Plaintiff Kelly alleges that prior to the time he began leasing space to Plaintiff Watson, Scoreboard was raided by the police once, and that after Plaintiff Watson began operating Tony Tix in that space, the Scoreboard was allegedly raided eight times in three years. Id. ¶ 59. Plaintiffs also allege that Defendants have never raided any other establishment at any time in the Township. Id. ¶ 61. Finally, Plaintiffs allege that Defendants have never stationed marked cop cars directly outside of any other establishment in the Township, unless requested to do so by citizens. Id. ¶ 65. Plaintiffs assert that the police officers' unconstitutional conduct was so widespread and ongoing that it could not have been carried out without the knowledge and tacit approval of the policy-making Defendants.
The Court finds that Plaintiffs have sufficiently plead that the policy-making defendants adopted and enforced a policy or custom of discriminating against African Americans, and that Plaintiffs properly alleged that their rights were violated by police officers acting pursuant to that policy or custom. Therefore, the Court will not dismiss Plaintiffs' Fourteenth Amendment claims.
B. Count I: Civil Conspiracy Under § 1985
Plaintiffs also allege in Count I that all Defendants took part in a civil conspiracy to deprive Plaintiffs of their rights in violation of § 1985(3). In order to state a valid claim under this section, a plaintiff must allege "(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive . . . any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to the person . . .or the deprivation of any right or privilege of a citizen of the United States." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). In Defendants' Motion to Dismiss, they only assert that Plaintiffs have failed to properly allege a class-based animus. The Court finds that Defendants have conceded that Plaintiffs sufficiently plead the remaining elements and the Court will not address them.
Here, Plaintiff Watson alleges that all Defendants conspired to deprive him of his rights because of his race, and that the policy-making defendants approved and enforced a policy that deprived Watson, Kelly, and Kennedy of their rights. Defendants argue, however, that Plaintiffs Kelly and Kennedy are white and they are not members of a protected class entitled to relief under § 1985. Defendants argue that for Kelly and Kennedy to have a cause of action under § 1985, they must allege that there was a conspiracy motivated by animus towards a class of persons of which Kelly and Kennedy are members.
Section 1985(3) provides relief for anyone "injured in his person or property, or deprived of . . . any right or privilege" by someone acting in furtherance of a proscribed conspiracy. If the conspiracy is proscribed, i.e. is motivated by a class-based discriminatory animus, then anyone injured by that conspiracy, whether a member of the class or not, may bring a suit under § 1985(3). Novotny v. Great American Federal Savings Loan Association, 584 F.2d 1235, 1245 (3d Cir. 1978),vacated on other grounds, 442 U.S. 366, 995 S.Ct. 2345, 60 L.Ed.2d 957 (1979). The Court finds that Plaintiffs Watson, Kelly, and Kennedy have sufficiently plead that there was a conspiracy that deprived them of their civil rights, and that the conspiracy was motivated by aniumus towards African Americans. Therefore, the Court will not dismiss the § 1985(3) claims of Plaintiffs Watson, Kelly, and Kennedy.
C. Affirmative Defense: Qualified Immunity
Defendants raise the affirmative defense of qualified immunity in their Motion to Dismiss. Government officials, including the police, are immune from being sued "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). At the motion to dismiss stage, a plaintiff must allege, in order to defeat a defendant's assertion of qualified immunity, that the official violated a clearly established right. Id. At 570-571. The first step is to determine whether the plaintiff asserted a violation of a constitutional right, and the second step is to examine whether that right was clearly established. Id. at 571. Importantly, "the essential inquiry is whether a reasonable official in the defendant's position at the relevant time could have believed, in light of clearly established law, that his conduct comported with established legal standards." Id.
Defendants do not address either element of this two-step test in their Motion to Dismiss. Instead they argue that their conduct was reasonable because they were acting pursuant to lawfully-obtained warrants. Plaintiffs argue that the allegations in the Complaint satisfy the McLaughlin standard. The Court has found that Plaintiffs Watson, Tony Tix, and Kennedy sufficiently alleged violations of their constitutional rights under the Fourth Amendment, and that all plaintiffs alleged violations of their Fourteenth Amendment rights. Furthermore, Plaintiffs have a clearly established right to be free from unlawful searches and seizures. A police officer would not have believed that falsifying a warrant affidavit, as Plaintiffs allege all Defendants were involved with in the instant case, comported with established legal standards. The same holds true of Defendants Township's and Police Department's alleged institution of and/or acquiescence to a policy of racial discrimination. Therefore, the Court finds that Plaintiffs have met the McLaughlin standard for rebutting the Defendants' assertion of qualified immunity at this stage of the proceedings. Thus, the Court will not dismiss Plaintiffs' claims against Defendants on the grounds that Defendants have qualified immunity.
D. Count II: Defamation, Commercial Disparagement, and Wrongful Interference with Economic Opportunity
In Plaintiffs' Answer to Defendants' Motion to Dismiss, Plaintiffs concede that their defamation claim is barred by the statute of limitations, but they renew their remaining causes of action under Count II of the Complaint. To state a claim of commercial disparagement, Plaintiffs must allege that: (1) Defendants published a false and disparaging statement concerning Plaintiffs' businesses, (2) Defendants' intent was to cause Plaintiffs pecuniary loss, or that Defendants reasonably should have known that publication would cause Plaintiffs pecuniary loss, (3) actual pecuniary loss by Plaintiffs, and (4) that Defendants knew that the statement was false or acted in reckless disregard to its truth. Pro Golf Manufacturing, Inc. v. Tribune Review Newspaper Co., 761 A.2d 553, 555-56 (Pa.Super. 2000).
The Court will dismiss Plaintiffs' defamation claim. The remaining two causes of action in Count II, commercial disparagement and wrongful interference with economic opportunity, are the same cause of action called by two different names. See Pro Golf Manufacturing, Inc. v. Tribune Review Newspaper Co., 761 A.2d 553, 555 (Pa.Super. 2000). The Court will treat the two claims as one.
Defendants only argument is that the alleged statements made by Defendants were not false, and that Plaintiffs have not demonstrated that Defendants intended to cause pecuniary loss or reasonably should have recognized that pecuniary loss would result. The truth or falsity of the statements and the intent of the Defendants, however, are factual issues. When deciding a 12(b)(6) motion, the Court must accept as true all factual allegations made in the complaint. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).
Plaintiffs allege that the statements made by Defendants Kondon, Parks, and Ammaturo in their warrant affidavits were false. Pl.'s Compl. ¶ 28. Plaintiffs also allege that Defendant Police Department falsely communicated to its police officers that the Scoreboard was involved in illegal activities, and that the Township's officers should not patronize Scoreboard while off-duty. Id. ¶ 69. Plaintiffs further allege that Defendants knew that all of these statements were false but made them anyway with the intent to harm Plaintiffs, and that the Defendants knew that the false statements would result in pecuniary loss to the Plaintiffs. Id. ¶ 115. Viewed in a light most favorable to the Plaintiffs, the Court finds that Plaintiffs have sufficiently plead that all defendants wrongfully interfered with their economic opportunity. Therefore, Plaintiffs' claim of commercial disparagement against all defendants will not be dismissed.
E. Count III: Malicious Prosecution
Plaintiffs Kennedy and Watson allege that they were the subjects of malicious prosecution at the hands of all Defendants. To state a claim for malicious prosecution, a plaintiff must allege that (1) the defendant instituted proceedings against the plaintiff, (2) without probable cause, (3) with malice, and (4) the proceedings must have terminated in the plaintiffs favor. McKibben v. Schmotzer, 700 A.2d 484, 492 (Pa.Super. 1997).
Defendants cite Montgomery v. DeSimone, 159 F.3d 120 (3d Cir. 1998), for the proposition that police officers are generally not liable for malicious prosecution because they do not actually prosecute criminal cases. This Court does not agree with Defendants' interpretation of Montgomery that police officers are generally immune from malicious prosecution claims. The Third Circuit did not state or allude to that proposition in its Montgomery decision, but the Court held instead that an overturned municipal conviction does not presumptively establish probable cause in a malicious prosecution case.
In Montgomery, defendant arrested plaintiff for driving while intoxicated. The municipal court judge found that defendant had probable cause for the stop and the arrest and found plaintiff guilty. Plaintiff appealed and a trial was held de novo in the Superior Court of New Jersey. The court reversed plaintiffs conviction, and plaintiff subsequently filed a malicious prosecution claim against defendant. The district court granted summary judgment to defendant, and held that plaintiffs malicious prosecution claim was barred as a matter of law because the municipal judge had reasonably determined that probable cause existed for the arrest. The Third Circuit reversed and held that an overturned municipal conviction does not presumptively establish probable cause. Montgomery, 159 F.3d at 125-126 The court remanded the case to district court with instructions that the issue of probable cause was a question for the jury.
Here, Plaintiffs Watson and Kelly allege that Defendants instituted proceedings against them when Defendants arrested Watson and Kelly and charged them with various crimes. Pl.'s Compl. ¶¶ 33-35, 86-87. Plaintiffs also allege that Defendants did not have probable cause and that Defendants acted with malice. Id. ¶¶ 28, 81, 118. Furthermore, Plaintiffs allege that all charges against them were eventually dropped. Id. ¶¶ 36, 89. The Court finds that Plaintiffs Watson and Kelly have sufficiently alleged a cause of action for malicious prosecution and the Court will not dismiss the claim.
F. Count IV: Intentional Infliction of Emotional Distress
Defendants initially argue that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania, citing Taylor v. Albert Einstein Medical Center, 754 A.2d 650, 652 (Pa. 2000) ("we have never expressly recognized a cause of action for intentional infliction of emotional distress . . ."). Plaintiffs counter argument is that the Pennsylvania Supreme Court in Taylor, after acknowledging that they had never expressly recognized the tort of intentional infliction of emotional distress, held that, "[W]e have cited the [Restatement (Second) of Torts] section [46(2)] as setting forth the minimum elements necessary to sustain such a cause of action." Taylor, 754 A.2d at 652. Furthermore, "the third circuit has confronted this question . . . and has repeatedly held that Pennsylvania does recognize the tort, in spite of "speculation' to the contrary." Weinstein v. Bullick, 827 F. Supp. 1193, 1203 (E.D. Pa. 1993) (citing Silver v. Mendel, 894 F.2d 598, 606 (3d Cir. 1990)).
To state a claim for intentional infliction of emotional distress, a plaintiff must allege (1) extreme and outrageous conduct by the defendant, (2) that is intentional or reckless, (3) that causes emotional distress, and (4) that the emotional distress is severe. Id. The Court finds that Plaintiffs have sufficiently alleged a cause of action for intentional infliction of emotional distress.
Plaintiffs alleged each of the necessary elements to establish a cause of action for intentional infliction of emotional distress in their Complaint. See Pls.' Compl. ¶¶ 121-126.
G. Affirmative Defense: Sovereign Immunity
Defendants argue in the alternative that Plaintiffs' claim for intentional infliction of emotional distress, along with their other state law claims, are barred by Pennsylvania's sovereign immunity statute. Plaintiffs' response is that Defendants lost their immunity because their actions amounted to willful misconduct.
Pennsylvania law states: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof . . ." 42 Pa.C.S. § 8541. Under § 8541, Defendants Township and Police Department are shielded from liability unless one of the exceptions listed in § 8542 applies. As for Defendants Kelly, Kondon, Parks, and Ammaturo, § 8545 states that "an employee of a local agency is liable for . . . any injury . . . caused by acts of the employee . . . only to the same extent as his employing agency and subject to the limitations imposed by this subchapter." Under this statute, the Defendants Kelly, Kondon, Parks, and Ammaturo are liable only to the extent that the Police Department is liable. However, § 8550 creates an exception to § 8545 when the act of the employee that caused the injury "constituted a crime, actual fraud, actual malice, or willful misconduct." Plaintiffs argue that Defendants Kelly, Kondon, Parks, and Ammaturo are not immune from any of Plaintiffs' state law claims because each of those claims, including intentional infliction of emotional distress, involves allegations that Defendants acted willfully or with malice.
Section 8542 imposes liability on a local agency for damages arising from injuries caused by any of eight enumerated acts, none of which are implicated in the instant matter.
The Court finds that Plaintiffs have sufficiently raised the issue of Defendants' intent. Therefore, Defendants Kelly, Kondon, Parks, and Ammaturo are within the § 8550 exception to sovereign immunity. Thus, Plaintiffs' claim for intentional infliction of emotional distress, along with their other state law claims against Defendants Kelly, Kondon, Parks, and Ammaturo will not be dismissed. However, all of Plaintiffs' state law claims are barred against the Township and Police Department by § 8541. Therefore, the Court will dismiss all state law claims against Defendants Township and Police Department.
Plaintiffs' state law claims include commercial disparagement, malicious prosecution, and intentional infliction of emotional distress.
H. Punitive Damages
Defendants also argue that Plaintiffs' request for punitive damages should be dismissed. In a § 1983 suit, punitive damages may not be awarded against a municipality, Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), or against an officer of a municipality being sued in his official capacity. Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988). Therefore, the Court will dismiss Plaintiffs' request for punitive damages related to their § 1983 claims against Defendants Township and Police Department, as well as Defendants Kelly, Kondon, Parks, and Ammaturo in their official capacities as police officers. However, the Court will not dismiss Plaintiffs' request for punitive damages against the officers in their individual capacities.
CONCLUSION
For the reasons stated above, the Court will grant Defendants' Motion to Dismiss Plaintiffs', Kelly and Scoreboard, Fourth Amendment claims, all Plaintiffs' Fifth Amendment claims, all Plaintiffs' defamation claims, all Plaintiffs' state law claims against Defendants Township and Police Department, and all Plaintiffs' request for punitive damages in their § 1983 claims against Defendants Township, Police Department, Kelly, Kondon, Parks, and Ammaturo in their official capacities. The Court will deny Defendants' Motion to Dismiss as to all other claims.
The remaining claims are all plaintiffs' Fourteenth Amendment claims against all defendants, the Fourth Amendment claims of Plaintiffs Watson, Tony Tix, and Kennedy against all defendants, and all plaintiffs' state law claims (see supra note 8) against Defendants Kelly, Kondon, Parks, and Ammaturo.
ORDER
AND NOW, this 12th day of August 2002, upon consideration of Defendants' Motion to Dismiss (Doc. 3) and Plaintiffs Response thereto (Doc. 5), IT IS HEREBY ORDERED and DECREED that Defendants' Motion is GRANTED IN PART AND DENIED IN PART.IT IS FURTHER ORDERED that:
1. Defendants' Motion to Dismiss Plaintiffs', Kelly and Scoreboard, Fourth Amendment claims is GRANTED.
2. Defendants' Motion to Dismiss Plaintiffs' Fifth Amendment claims is GRANTED.
3. Defendants' Motion to Dismiss Plaintiffs' Defamation Claims is GRANTED.
4. Defendants', Abington Township and Abington Police Department, Motion to Dismiss Plaintiffs' State law claims, Commercial Disparagement, Malicious Prosecution, and Intentional Infliction of Emotional Distress, is GRANTED.
5. Defendants' Motion to Dismiss Plaintiffs' Request for Punitive Damages in their Section 1983 claims against Defendants, Abington Township, Abington Police Department, William J. Kelly, Richard L. Kondon, John Parks, and Anthony Ammaturo, in their official capacities is GRANTED. Plaintiffs' Request for Punitive Damages in their Section 1983 claims remains against Defendants, Willaim J. Kelly, Richard L. Kondon, John Parks, and Anthony Ammaturo in their individual capacities.
6. Defendants' Motion to Dismiss Plaintiffs' Fourteenth Amendment claims is DENIED.
7. Defendants' Motion to Dismiss Plaintiffs', Antonio D. Watson, Tony Tix, Inc., and Robert Kennedy, Fourth Amendment claims is DENIED.
8. Defendants', William J. Kelly, Richard L. Kondon, John Parks, and Anthony Ammaturo Motion to Dismiss Plaintiffs' State law claims, Commercial Disparagement, Malicious Prosecution, and Intentional Infliction of Emotional Distress, is DENIED.