FOSTER et al v. CITY OF PHILADELPHIA et al

Filing 142

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 10/8/14. 10/8/14 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAMES H. FOSTER et al.,
Plaintiffs,

CIVIL ACTION
NO. 12-5851

v.
CITY OF PHILADELPHIA et al.,
Defendants.

OPINION
Slomsky, J.

October 8, 2014
TABLE OF CONTENTS

I.

INTRODUCTION .........................................................................................................3

II.

PROCEDURAL HISTORY...........................................................................................3

III.

FACTUAL STATEMENT ............................................................................................4

IV.

STANDARD OF REVIEW .........................................................................................15

V.

ANALYSIS ..................................................................................................................16
A. Section 1983 Claims Against City Defendants, Jefferson, and Century Motors ...16
1. Section 1983 Claim Against Police Officer Sean Boyle ..........................17
i.

Foster Raises a Genuine Issue of Material Fact as to Whether
Officer Boyle’s Seizures Were “Reasonable” Under the Fourth
Amendment ....................................................................................17

ii.

Officer Boyle Is Not Entitled to the Protection of Qualified
Immunity ........................................................................................22

2. Section 1983 Claim Against City of Philadelphia ....................................29
3. Section 1983 Claim Against Jefferson ......................................................32
i.

Jefferson Is a State Actor ...............................................................33

a. Pre-Arranged Plan Between Jefferson and Boyle ..............33
b. Substitution of Judgment ...................................................34
ii.

Jefferson Is Not Entitled to Qualified Immunity ...........................35
a. Good Faith Affirmative Defense .......................................40

4. Section 1983 Claim Against Century Motors ...........................................41
i.

Century Motors Is a State Actor ....................................................41

ii.

Century Motors Is Not Entitled to Qualified Immunity.................42
a. Good Faith Affirmative Defense .......................................46

B. Abuse of Process Claims Against City Defendants, Jefferson, and Century
Motors ....................................................................................................................46
1. Abuse of Process Claim Against Jefferson ...............................................47
2. Abuse of Process Claims Against City Defendants ..................................48
3. Abuse of Process Claim Against Century Motors ....................................48
C. Conversion Claims Against City Defendants, Jefferson, and Century
Motors ....................................................................................................................48
1. Conversion Claim Against Boyle .............................................................49
2. Conversion Claim Against City of Philadelphia .......................................52
3. Conversion Claim Against Jefferson ........................................................53
4. Conversion Claim Against Century Motors .............................................53
D. Civil Conspiracy Claims Against City Defendants, Jefferson,
and Century Motors ...............................................................................................54
VI.

CONCLUSION ............................................................................................................55

2

I.

INTRODUCTION
This case involves four claims alleging violations of federal and state law, all stemming from

incidents that occurred at a vintage car restoration shop on May 16 and 23, 2011 in the
Germantown section of Philadelphia. Plaintiffs’ claims include allegations of unreasonable
seizures of vehicles and automobile parts, abuse of process, civil conspiracy, and conversion. On
August 4, 2014, after the close of fact discovery, Defendants filed Motions for Summary
Judgment. The Motions are now before the Court for disposition.
II.

PROCEDURAL HISTORY
The parties in this lawsuit are Plaintiffs James H. Foster, West Johnson Garage, Inc. d/b/a

West Johnson Classics, and International Collectibles, Inc. (collectively the “Foster Parties” or
“Foster”); Defendant Alfred Jefferson (“Jefferson”); Defendants City of Philadelphia and Police
Officer Sean Boyle (“City Defendants”); and Defendant Century Motors, Inc. (“Century” or
“Century Motors”).
In the Amended Complaint, the claims noted above are asserted against all Defendants in the
following counts: (1) Count One – Unreasonable Seizure of Property in Violation of 42 U.S.C.
§ 1983; (2) Count Two – Abuse of Process; (3) Count Three – Conversion; and (4) Count Four –
Civil Conspiracy.
On August 4, 2014, following a protracted period of motions practice, City Defendants,
Century Motors, and Jefferson each filed separate Motions for Summary Judgment. (Doc. Nos.
98-101.) On September 3, 2014, Foster filed an Omnibus Response in Opposition. (Doc. No.
100.) Reply Briefs were also filed by Defendants. (Doc. Nos. 102, 103, 112.)

For reasons that follow, the Court will grant in part and deny in part the City Defendants’ and
Century Motors’ Motions for Summary Judgment, and will deny in its entirety the Motion for
Summary Judgment filed by Jefferson.1
III.

FACTUAL STATEMENT
The following facts are pertinent to the Motions for Summary Judgment and the Responses

and are viewed in the light most favorable to Foster.2
This complex case emerges from what would seem to be a relatively routine problem: a
landlord-tenant relationship gone awry. From 1999 to 2010, Plaintiff James Foster, a longtime
resident of Northwest Philadelphia and classic automobile enthusiast, leased garage space
located at 86 West Johnson Street in Philadelphia from Defendant Alfred Jefferson. (Doc. No.
100 at ¶ 7; Deposition of James Foster, Doc. No. 101, Ex. D at 24-26.) At this garage, Foster
had a classic automobile restoration business. In addition to this business, Foster also owned and
operated three local newspapers: The Germantown Chronicle, the Northwest Independent, and
The Independent Voice. (Doc. No. 100 at ¶ 5; Foster Dep. at 21-24.)

1

On September 17, 2014, the Court was notified that a second case consolidated with this action,
referred to as the “Banks” case (E.D. Pa. Civ. Action No. 13-2682) had been settled.
Therefore, this Opinion only concerns summary judgment motions filed in this case, which the
parties generally refer to as the “Foster” case. In rendering this Opinion, the Court has
considered the following: the Amended Complaint (Doc. No. 6); City Defendants’ Motion for
Summary Judgment (Doc. No. 84); Century Motors’ Motion for Summary Judgment (Doc.
Nos. 85-86); Jefferson’s Motion for Summary Judgment (Doc. No. 87); Foster’s Response in
Opposition (Doc. No. 100); Century Motors’ Reply (Doc. No. 102); City Defendants’ Reply
(Doc. No. 103); Jefferson’s Reply (Doc. No. 112); and all attached exhibits and related filings.

2

In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Chambers ex
rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009)). As the
Foster Parties are the nonmoving parties here, the Court will view the facts presented in the
light most favorable to them.
2

During his twelve year leasehold for use of the garage, Foster missed various rent payments
owed to Jefferson, attributing these defaults to the ebb and flow of the classic automobile market.
There were “periodic instances” in which he could not pay the rent on time, but he and Jefferson
“regularly made arrangements to satisfy past due balances.” (Doc. No. 100 at ¶¶ 11-12; Foster
Dep. at 35-42, 47.)
Jefferson eventually took action to recover missed rent payments in 2009 and 2010. (Doc.
No. 100 at ¶¶ 13-15, 18; Doc. No. 101, Exs. G, H.) His efforts culminated in two judgments
against Foster. (Id.) In 2009, Jefferson received a judgment of delinquency against Foster, but
did not evict him. (Deposition of Alfred Jefferson, Doc. No. 101, Ex. L at 33:6-9.) Thereafter,
the parties reached an agreement over the judgment. Foster executed a mortgage on his house in
favor of Jefferson to satisfy the judgment which required Foster to pay Jefferson $1,095.71 per
month. (Foster Ex. G; Foster Dep. at 96-97; Jefferson Dep. at 32:3-9.) Jefferson still holds that
mortgage. (Jefferson Dep. at 33:2-3.)
On November 16, 2010, Jefferson filed a Landlord-Tenant Complaint against Foster in
Philadelphia Municipal Court, again for unpaid rent. (Doc. No. 101, Ex. H.) Foster failed to
answer the complaint, and the court entered a default judgment against him on December 17,
2011 in the amount of $9,500.3 (Doc. No. 101, Ex. I.) Thereafter, on January 4 and January 21,
2011, in Philadelphia Municipal Court, Jefferson obtained a Writ of Possession/Eviction for the
premises. (Doc. No. 87, Ex. G.) On February 9, 2011, upon Jefferson’s request, Foster and
Jefferson met at 86 West Johnson Street, where a Sheriff served Foster with the Writ of Eviction.
(Doc. No. 100 at ¶ 21; Doc. No. 87-1 at ¶ 19.)

3

Foster claims that he was not properly served with the summons or complaint, causing the
default judgment to be entered against him. (Doc. No. 100 at ¶ 16.)
3

Over the next few months, Jefferson allowed Foster limited access to the property so that he
could remove vehicles and return them to their owners. (Doc. No. 100 at ¶ 24; Foster Dep. at 5262.) Foster estimated that at various times between March 2011 and May 2011, he was able to
retrieve around twelve of the forty-seven vehicles stored at the garage. (See Foster Dep. at
169:20-23.) Some vehicles were taken to another garage Foster used and others were retrieved
by their owners. (Id. at 169-70; Doc No. 87, Ex. A at ¶ 23.) Thus, between February 9 and May
2011, Foster had removed some, but not all, of the vehicles from the premises.
In the midst of the eviction process, Foster published an article entitled “Trouble in
Tascoland” in the April 29-May 11, 2011 edition of his newspaper The Germantown Chronicle.
(Doc. No. 100 at ¶ 25-26; Doc. No. 101, Ex. K.) In the article, Foster criticized Philadelphia
Councilwoman Marian Tasco, alleging that she misappropriated Deferred Retirement Option
Plan (“DROP”) retirement funds. 4 (Id.) Jefferson admitted in deposition testimony that he and
Councilwoman Tasco maintain a personal relationship. (Doc. No. 100 at ¶¶ 27-29; Jefferson
Dep. at 10-11.) Jefferson worked on and donated money to Tasco’s campaign. (Doc. No. 100 at
¶¶ 28-29; Jefferson Dep. at 10-11; Doc. No. 101, Ex. M.) Additionally, Jefferson and Tasco
attended social events together and Jefferson worked on Tasco’s house. (Doc. No. 100 at ¶¶ 2728; Jefferson Dep. at 10-13.) Within days of publishing this article, Foster was denied by
Jefferson access to the Johnson Street garage, making it impossible for him to continue his
efforts to remove vehicles. (Doc. No. 100 at ¶ 30; Foster Dep. at 60-61.)
In late April or early May 2011, Jefferson contacted the Pennsylvania Department of
Transportation (“PennDOT”) to obtain information about the procedure for removal of the
vehicles from his property. (Doc. No. 87-1 at ¶ 28; Jefferson Dep. at 64:14-17.) PennDOT
4

DROP was a controversial retirement program enacted for the benefit of employees of the City
of Philadelphia.
4

referred him to the Philadelphia Police Department’s Neighborhood Services Unit (“NSU”).
(Doc. No. 87-1 at ¶ 29; Jefferson Dep. at 64:14-17; 96:2-9.) Jefferson made a claim with the
NSU for removal of the vehicles from his garage. (Doc. No. 87-1 at ¶ 31; Deposition of Officer
Sean Boyle, Doc. No. 101, Ex. N at 52:5-10.) NSU is responsible for the removal of abandoned
vehicles under the Pennsylvania Abandoned Vehicle Code. 75 Pa.C.S.A. § 7301 et seq.
(hereinafter “the Code”). 5
The definitional section of the Pennsylvania Vehicle Code, which includes the provisions of
the Abandoned Vehicle Code, defines an “abandoned vehicle” as follows:
A vehicle (other than a pedalcycle) shall be presumed to be abandoned under any
of the following circumstances, but the presumption is rebuttable by a
preponderance of the evidence:
(i)

The vehicle is physically inoperable and is left unattended on a highway or
other public property for more than 48 hours.

(ii)

The vehicle has remained illegally on a highway or other public property
for a period of more than 48 hours.

(iii)

The vehicle is left unattended on or along a highway or other public
property for more than 48 hours and does not bear all of the following:
(A) A valid registration plate.
(B) A current certificate of inspection.
(C) An ascertainable vehicle identification number.

(iv)

The vehicle has remained on private property without the consent of the
owner or person in control of the property for more than 24 hours.

75 Pa.C.S.A. § 102.

5

Chapter 73 of the Pennsylvania Vehicle Code, which is contained in Title 75 of the
Pennsylvania Consolidated Statutes Annotated, is entitled “Abandoned Vehicles and Cargo.”
Chapter 73 contains §§ 7301-7312 and is generally referred to by the parties as the
“Pennsylvania Abandoned Vehicle Code.”
5

The Abandoned Vehicle Code, in addition to describing removal protocol for vehicles left on
roadways, also sets forth specific protocol for handling reports by private property owners of
abandoned vehicles. 75 Pa.C.S.A. § 7311.1, (“Reports by Private Property Owners of
Abandoned Vehicles”), provides as follows:
A person on whose private property is located a vehicle which has remained on
the property without the consent of the property owner or his agent for more than
24 hours may authorize the removal or processing of the vehicle. Prior to the
removal or processing of the vehicle, that person shall file a report, on a multipart
form prescribed by the department, with the local police department declaring that
an unauthorized vehicle has been left unattended and on private property for at
least 24 hours. One part of such report shall be retained by that person, and the
other part shall be filed with the police department. The police department shall,
within five business days, process the vehicle as abandoned under this chapter and
attach a copy of the report to the abandoned vehicle information report.
75 Pa.C.S.A. § 7311.1.
Once a removal report is filed with NSU, a police officer from NSU will investigate to
determine if removal is proper under the statute. (Deposition of Mary Bibbo, Doc. No. 101,
Ex. S at 43:9-19.) After the investigation, if NSU determines that removal is warranted, NSU
will designate a local business to remove and tow the vehicle at the pertinent address. (See Doc.
No. 84-2 at ¶¶ 27, 32.) The local business is known as a “salvor” which would enter into a
towing contract with the City of Philadelphia.6 75 Pa.C.S.A. § 102; (Doc. No. 86, Exs. R, T).

6

Section 102 of the Motor Vehicle Code defines a salvor as a “person engaged in the business of
acquiring abandoned vehicles for the purpose of taking apart, recycling, selling, rebuilding or
exchanging the vehicles or parts thereof.” 75 Pa.C.S.A. § 102. The Motor Vehicle Code does
not define what a “towing company” is although salvors could clearly engage in towing
operations. Id. Section 7301(a.1) of the Abandoned Vehicle Code recognizes that there is a
distinction between a salvage dealer and a towing business by providing as follows: “The
department may authorize and issue a certificate of authorization to a currently registered
repair or towing business under section 1337(c)(1) if there is no qualified vehicle salvage
dealer in a county. 75 Pa. C.S.A. § 7301.
6

In this regard, the Code provides:
Upon receipt of the written abandoned vehicle information report from any
authorized person, . . . a salvor shall take possession of and remove to the storage
facility of the salvor any abandoned vehicle located within 30 miles of the place
of business of the salvor . . . .
75 Pa.C.S.A. § 7303.1(b).
The salvor will hold the vehicle for a length of time, and then dispose of it according to state
law. (Doc. No. 86 at ¶ 22.)7 NSU prepares the state mandated paperwork for every abandoned
vehicle towed by the salvor and notifies the last registered owner or lienholder of the disposition
of the vehicle. See 75 Pa.C.S.A. § 7305(a); (Doc. No. 86, Ex. R).
The City does not pay the salvor directly, but rather a salvor receives compensation from the
owner of the vehicle for towing and storage charges.8 75 Pa.C.S.A. § 7306. If the salvor obtains
a “certificate of salvage” or “salvage title” from the State, the salvor may keep the car and use or
sell its parts.9 See generally 75 Pa.C.S.A. §§ 7307-09; (Doc. No. 86, Ex. R); (Deposition of
Richard Cray, Doc. No. 101, Ex. 17 at 42-45).

7

Cray testified in his deposition that vehicles are disposed of “according to by [sic] law by the
State and what’s mandated by the Philadelphia Police Department.” Cray did not explain what
is mandated by the Philadelphia Police Department. (Cray Dep. at 46:15-20.)

8

For example, the contract between Century Motors and the City of Philadelphia provides: “The
City of Philadelphia does not pay any salvor, nor does the City make any money for services
rendered under this program. Any monetary earnings the salvor may gain that results from this
contract are based solely from the salvage business.” The contract also provides: “[i]n the
event the owner or lien holder of an abandoned vehicle reclaims the vehicle, the fees charged
by Salvor to the reclaiming party for towing and storage services shall not exceed One
Hundred Dollars ($100.00) for each tow and Eleven Dollars and Fifty Cents ($11.50) per day
for days 1 through 5; and, Seventeen Dollars and Twenty-Five Cents ($17.25) per day for days
6 through pickup.” (Doc. No. 86, Ex. R at 1.)

9

Richard Cray, a general manager at Century Motors, testified that a salvor could keep an
unclaimed vehicle by following one of two procedures, depending on the value of the vehicle.
If the vehicle was worth less than $500, the salvor would send a form to the State and wait
fifteen days before salvaging or “junking” the car. (See Cray Dep. at 41-49.) If the vehicle
7

Mary Bibbo, a civilian administrator at NSU, is in charge of facilitating the removal of
vehicles that are deemed abandoned. She selects the towing company for each assignment based
on the one with the lowest number of year-to-date towing assignments.10 (Doc. No. 87-1 at ¶ 32;
Bibbo Dep. at 52:3-4, 53:6-16, 60:3-61:13, 116:21-117.2.) Before NSU commences a towing
assignment of an abandoned vehicle, the owner of the property and the Philadelphia Police
Officer assigned to verify the propriety of the towing operation, in accordance with State and
Local law, must fill out a PennDOT form MV-952PP.11
Police Officer Sean Boyle, assigned to NSU, was designated to visit and inspect the 86 West
Johnson Street garage and to investigate Jefferson’s report. He did so sometime before May 16,
2011. (Boyle Dep. at 26-27, 31-32.) Boyle verified through the Police Department that Alfred
Jefferson was in fact the owner of the property. (Doc. No. 84-2 at ¶ 11; Boyle Dep. at 33:19-25;
Doc. No. 84, Ex. F.) During the initial inspection, Jefferson gave Boyle the eviction notice.
(Doc. No. 84-2 at ¶ 13; Jefferson Dep. at 65:22-25; Boyle Dep. at 32:14-19, 35:2-25.)
On May 16, 2011, Foster received a phone call from his wife, informing him that she
witnessed a series of tow trucks lined up near the Johnson Street property. (Foster Dep. at 155-

was worth more than $500, Century would send another form to the State and the State would
notify the owner. If the owner did not take action, the State required Century to advertise the
car in a newspaper for public auction. If the car did not sell at auction, Century could then
obtain a certificate of salvage from the State and dispose of the vehicle. (Id.)
10

The contract between Century Motors and the City of Philadelphia also provides: “City makes
no guarantee or representation as to the number or location of abandoned vehicles to be
assigned to Salvor and expressly reserves the right to obtain the services of such additional
private salvors as may be deemed in the best interest in the City.” (Doc. No. 86, Ex. R at 1.)

11

The Philadelphia Police must also follow Directive 36, which supplements the Abandoned
Vehicle Code and contains local procedures for handling abandoned vehicles. (Doc. No. 84,
Ex. H.) In relevant part, the Directive defines an “abandoned” vehicle as one “that has
remained on private property without the consent of the owner or person in control of the
property for more than forty-eight (48) hours.” (Id.)
8

56.) Foster called Jefferson, who handed the phone over to Officer Boyle. (Id. at 156.) During
this call, Foster explained to Boyle that he ran a business out of the garage and that the cars
located there belonged to other people. (Id. at 138:9-24, 139.) Boyle responded that nothing
could be done to stop the vehicles from being towed. (Id. at 155-56; Boyle Dep. at 62.)
Despite Foster’s protests, eighteen vehicles were towed from the garage on May 16, 2011, all
belonging to third parties. (Doc. No. 101, Ex. O.) In addition to the vehicles, Boyle removed
loose automobile parts from the garage. (Foster Dep. at 152; Cray Dep. at 101.) Boyle did not
inventory these parts in writing nor did he try to match them with seized vehicles. He did not
direct any person at NSU to inventory the parts or match them with the cars. (Doc. No. 84-2 at
¶ 23.)
Vehicles and parts were towed to Century Motors, Inc., a Southwest Philadelphia-based
automotive repair and car part business which was a designated salvor that had a contract with
the City of Philadelphia. (Doc. No. 100 at ¶ 55; Foster Dep. at 142-54.) Richard Cray, a
Century Motors employee and a former Highway Sergeant for the Philadelphia Police,
coordinated the May 16, 2011 towings on Century’s behalf. (Doc. No. 100 at ¶ 67; see Cray
Dep. at 93-117.) When third-party car owners went to Century to pick up their vehicles, they
observed that their cars were damaged and parts were missing. (Doc. No. 100 at ¶¶ 79-80.) One
owner, John Bank, claimed that Cray was “aggressive and profane with Bank” and “intimidated
Bank into signing a waiver for any damage to the vehicle.” (Id. at ¶ 80; Deposition of John
Bank, Doc. No. 101, Ex. CC at 28-29.)
After the towing, Foster called the Internal Affairs Bureau (“IAB”) of the Philadelphia Police
Department and spoke with Lieutenant Kevin Long, who was an acquaintance of Foster. (Doc.
No. 100 at ¶ 52; Foster Dep. at 142, 193-95.) Long told Foster that he was shocked about the

9

bizarre operation of the towing of the vehicles by NSU, and that Internal Affairs would
investigate the incident. (Doc No. 100 at ¶ 53; Foster Dep. at 142.) That same day, Foster went
to the NSU building, where he spoke with Mary Bibbo, the civilian administrator, and Captain
Anthony Desher, the person in charge of the unit involved in towing abandoned vehicles. (Doc.
No. 100 at ¶ 54; Foster Dep. at 142-54.) Foster explained what happened, prompting Desher to
respond, “Century’s gotta get something out of this, end of story.” (Doc. No. 100 at ¶ 56; Foster
Dep. at 154.)
On or about May 17, 2011, Lieutenant Long and Foster had another conversation, where
Long told Foster: “Get yourself a good lawyer, the decision to take your cars came from the
highest level of the department.” (Doc. No. 100 at ¶ 57; Foster Dep. at 154.)
In addition to his conversations with Foster, Long communicated within the Police
Department about the towing incidents at 86 West Johnson Street. On May 26, 2011, Long sent
an email to Captain Desher, which read in relevant part:
Captain Desher,
Thank you for taking my call today in reference to the assignment at 86 West
Johnson Street. This is a rather unique situation and I hope that your contacting
the evicted tenant, Jim Foster, will help minimize the need for a formal
investigation at IAB.
(Doc. No. 101, Ex. V.)
On May 23, 2011, Boyle and NSU conducted a second round of towing from the 86 West
Johnson garage, taking another seventeen vehicles. (Doc. No. 100 at ¶¶ 38, 39; Foster Dep. at
82; Doc. No. 101, Ex. R.) This time, each vehicle belonged to Foster. (Id.) They were towed to
Steffa Metals, Co., a car parts business located in Northeast Philadelphia. (Doc. No. 100 at ¶¶
38, 39; Doc. No. 101, Ex. Q.) Overall, “[t]he collaboration between Boyle and Jefferson
consisted of at least three in-person meetings, the completion of the PennDOT MV952-PP forms,
10

several telephone conversations and two full-day towing sessions,” resulting in a total of thirtyfive vehicles being towed. (Doc. No. 100 at 18; see Boyle Dep. at 26-33, 37-40, 72-73.)
Regarding the May 16 and May 23 towings, Boyle and Bibbo acknowledged that the vehicles
towed from the garage were related to the landlord-tenant dispute between Foster and Jefferson.
(Boyle Dep. at 65; Bibbo Dep. at 49.) Boyle testified that he knew that the garage housed
Foster’s business, and acknowledged that the premises had a business license on the wall, an
engine hoist, and a jack. (Boyle Dep. at 38-39.) He also observed automobile parts throughout
the garage. (Id.) Further, Boyle testified that Foster informed both Boyle and Jefferson on May
16, 2011 that the vehicles being towed did not belong to Foster and that he needed to return them
to their owners. (Boyle Dep. at 41-43; Jefferson Dep. at 45-46.)
In his deposition, Captain Desher, from his eight years of experience in the towing unit,
could single out only one other instance where the Police towed a high volume of vehicles from
a garage. (Deposition of Captain Anthony Desher, Doc. No. 101, Ex. W at 22, 29.) He was
unsure whether the garage in the previous incident was an automotive business. (Id.) Similarly,
Boyle, who has been involved in the towing of thousands of cars in his position at NSU, could
not name another instance in which vehicles were towed from a closed garage or automotive
business. (See Boyle Dep. at 83, 87.) Bibbo likewise testified that in her fourteen years at NSU,
she has never heard of another instance in which such a high number of vehicles were towed
from a private garage. (See Bibbo Dep. at 49.) In fact, these individuals recognized that this was
a unique situation and instituted special procedures for the May 16 towing. (Doc. No. 86 at ¶
58.) Bibbo worked to ensure that the owners of the towed vehicles did not receive citations or
incur towing or storage fees from Century Motors. (Id.; Bibbo Dep. at 48-51; Boyle Dep. at 71.)

11

Based on his conversations with Lieutenant Long, Foster became suspicious of Century
Motors and began to research their business. (See Doc. No. 100 at ¶¶ 62-63.) Subsequent
investigation revealed the following about Century Motors and the Philadelphia Police
Department.
First, the Federal Bureau of Investigation (“FBI”) was investigating Century Motors for
improper activities. (Doc. No. 100 at ¶ 63; Foster Dep. at 259; Cray Dep. at 74-77.) Boyle and
Bibbo acknowledged in their depositions that they were aware of the investigation and that it was
still ongoing. (Boyle Dep. at 84-86; Bibbo Dep. at 152-53.) In or around January 2011,
approximately fifteen FBI agents raided Century Motors’ office and seized the company’s
computers. (Cray Dep. at 74-78.)
Second, former Philadelphia Police Highway Patrol Officer Richard Cray worked as a
general manager of Century Motors, and was present during the May 16 and May 23 towings.
(Cray Dep. at 23-25; Doc. No. 86, Ex. R.) Cray began working at Century in 1995, and worked
concurrently at Century and the Police Department until 2004, when he retired from the Police
Department and then worked exclusively at Century. (Cray Dep. at 23-25.) At Century, Cray
was involved in coordinating the towing of abandoned vehicles under the Code. (Id. at 25.)
Cray left Century Motors in 2012. (Doc. No. 100 at ¶ 72; Cray Dep. at 53-55.)
During his employment at Century, Cray was familiar to many people in the Police
Department. Bibbo testified: “I mean, everybody at our unit knew Richie Cray because he was a
highway sergeant.” (Bibbo Dep. at 154-55.) Cray even wrote Bibbo a personal, handwritten
note requesting information regarding paperwork reflecting the values of the towed vehicles.
(Doc. No. 100 at ¶ 77; Bibbo Dep. at 196:10-16; Doc. No. Ex. AA.) The note read: “can we redo
952’s w/ value –Richie.” (Id.) When asked about this note, Bibbo testified that she interpreted

12

the note to mean that Cray requested guidance from Bibbo regarding “cars that didn’t have value
that he wanted value put on them.” (Bibbo Dep. at 196.) In effect, Cray was asking Bibbo to
redo forms to show a value on certain cars.
As a result of the May 16 and May 23 towings, Foster was unable to operate his business.
He sustained a loss of income and business opportunities. (Doc. No. 100 at ¶¶ 85-89; Foster
Dep. at 109, 188-89.) Moreover, Steffa Metals has not returned Foster’s personal vehicles towed
on May 23, 2011. (Doc. No. 100 at ¶ 88; Doc. No. 101, Ex. R.) Foster estimates the value of his
vehicles to be $66,630. (Doc. No. 100 at ¶¶ 85-89; Foster Dep. at 109, 188-89.) Foster also
testified that the towings were a public spectacle and caused him pain, suffering, humiliation,
emotional distress, and loss of reputation in his community. (Doc. No. 100 at ¶ 89; Foster Dep.
at 109, 188-89.)
IV.

STANDARD OF REVIEW
Granting summary judgment is an extraordinary remedy. Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reaching this decision, the
court must determine whether “the pleadings, depositions, answers to interrogatories,
admissions, and affidavits show there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Favata v. Seidel, 511 F. App’x 155, 158 (3d
Cir. 2013) (quoting Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010)
(quotation omitted)). A disputed issue is “genuine” only if there is a sufficient evidentiary basis
on which a reasonable jury could find for the non-moving party. Kaucher v. Cnty. of Bucks, 455
F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
For a fact to be considered “material,” it “must have the potential to alter the outcome of the
case.” Favata, 511 F. App’x at 158. Once the proponent of summary judgment “points to
13

evidence demonstrating no issue of material fact exists, the non-moving party has the duty to set
forth specific facts showing that a genuine issue of material fact exists and that a reasonable
factfinder could rule in its favor.” Id. (quoting Azur, 601 F.3d at 216 (internal quotation marks
omitted)).
In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Chambers ex
rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d Cir. 2009) (quotation
omitted)). The Court’s task is not to resolve disputed issues of fact, but to determine whether
there exist any factual issues to be tried. Anderson, 477 U.S. at 247-49. Whenever a factual
issue arises which cannot be resolved without a credibility determination, at this stage the Court
must credit the non-moving party’s evidence over that presented by the moving party. Id. at 255.
If there is no factual issue, and if only one reasonable conclusion could arise from the record
regarding the potential outcome under the governing law, summary judgment must be awarded
in favor of the moving party. Id. at 250.
V.

ANALYSIS
A.

Section 1983 Claims Against City Defendants, Jefferson, and Century
Motors

In opposing the Motions for Summary Judgment, Foster alleges that the evidence shows at
this stage of the proceedings that City Defendants, Jefferson, and Century Motors acted under
color of state law when they conspired to remove and seize vehicles from the garage located at
86 West Johnson Street. He also claims that the removal constituted an illegal seizure under the
Fourth and Fourteenth Amendments.
To establish a claim under § 1983, a plaintiff (1) must establish a violation of a constitutional
right, and (2) show that the alleged violation was committed by a person acting under color of
14

state law. Boyer v. Mohring, 994 F. Supp. 2d 649, 657 (E.D. Pa. 2014) (citing West v. Atkins,
487 U.S. 42, 48 (1988)).
Accordingly, the Court will discuss the Motions for Summary Judgment on the § 1983 claim
against each defendant in the following order: Officer Boyle, City of Philadelphia, Jefferson, and
Century Motors.
1.

Section 1983 Claim Against Police Officer Sean Boyle

Officer Boyle contends that his authorization to tow Foster’s vehicles did not amount to an
unreasonable seizure in violation of the Fourth and Fourteenth Amendments. 12 (Doc. No. 84-1
at 6-7.) Alternatively, Boyle argues that even if his actions led to an unreasonable seizure, he
should be afforded the protection of qualified immunity. (Id. at 7.)
For reasons set forth below, summary judgment as to Boyle will be denied on Count One
because Foster has raised a genuine issue of material fact as to (1) whether the towing or seizure
of the vehicles was “reasonable” under the Fourth and Fourteenth Amendments, and (2) whether
qualified immunity shields Boyle from suit for his conduct in this case.
i.

Foster Raises a Genuine Issue of Material Fact as to Whether
Officer Boyle’s Seizures Were “Reasonable” Under the Fourth
Amendment

“The impoundment of an automobile is a Fourth Amendment seizure.” Draper v. Upper
Darby Twp. Police Dept., No. 10-1080, 2012 WL 93178, at *2 (E.D. Pa. Jan. 11, 2012). “As a
general rule, a law enforcement officer may only seize property pursuant to a warrant based on
probable cause. Police may, however, exercise discretion to impound a vehicle so long as that
discretion is exercised according to standard criteria.” Id. (internal quotation marks omitted).
However, a decision to impound a vehicle contrary to standardized procedure is not a per se

12

As noted, one element of a § 1983 claim is that a defendant is a state actor. City Defendants
do not contest that Officer Boyle and the City of Philadelphia are state actors.
15

violation of the Fourth Amendment. See United States v. Smith, 522 F.3d 305, 312 (3d Cir.
2008).
The crux of whether the Fourth Amendment was violated, however, depends on the objective
reasonableness of the seizure. See Smith, 522 F.3d at 312. The reasonableness inquiry requires
consideration of the circumstances of each individual situation. See Cooper v. California, 386
U.S. 58, 59 (1967).
Boyle argues that his conduct was reasonable because he was merely following the protocol
for the handling of vehicles left on private property without the consent of the owner for over
twenty-four hours pursuant to Pennsylvania’s Abandoned Vehicle Code. 75 Pa.C.S.A.
§§ 7303.1, 7311.1; (Doc. No. 84-1 at 9).13 In accordance with the Code, Boyle claims that
because he verified that (1) Jefferson was the owner of the property, (2) Foster was properly
evicted from this property, and (3) the towed vehicles were on the premises for over twenty-four
hours, he acted reasonably in removing the vehicles. (Id.)

13

Boyle alleges that his actions in the May 16 and 23 towings were pursuant to § 7311.1 of the
Abandoned Vehicle Code, set forth above, which describes the duties of police and private
parties when removing a vehicle from private property. 75 Pa.C.S.A. § 7311.1. This section of
the Code does not mention the rebuttable presumption when a vehicle is processed as
“abandoned” that appears in the definition of “abandoned vehicle” in § 102 of the general
Pennsylvania Vehicle Code, also set forth above. 75 Pa.C.S.A. § 102. Because § 7311.1 is
contained in the Abandoned Vehicle Code, and does refer in its text to the term “abandoned” in
conjunction with the processing of a vehicle, a clear reading of both § 7311.1 and the definition
set forth in § 102 of the Vehicle Code together would indicate that the presumption that a
vehicle remaining in private property without the consent of the owner for more than twentyfour hours is abandoned and can be rebutted by a preponderance of the evidence would apply
to § 7311.1. Application of the Pennsylvania rules of statutory construction supports this
conclusion: “[T]he General Assembly intends the entire statute to be effective and certain.” 1
Pa.C.S.A. § 1922(2). This is a presumption that is used in ascertaining legislative intent. Id.
There is no indication that the legislature attempted to eliminate from any section of the
Abandoned Vehicle Code the presumption that appears in the definition of “abandoned
vehicle” or the fact that the presumption can be rebutted by a preponderance of the evidence.
16

This analysis is not entirely accurate given that this case involves a matter of federal law.
“The question . . . upon review of a state-approved . . . seizure is not whether [the seizure] was
authorized by state law but whether [the seizure] was reasonable under the Fourth Amendment.”
Miranda v. City of Cornelius, 429 F.3d 858, 864-65 (9th Cir. 2005) (citing Sibron v. New York,
392 U.S. 40, 61 (1968)).
Here, viewing the evidence in the light most favorable to Foster, he raises a genuine issue of
material fact regarding what a “reasonable” response to Jefferson’s request that the vehicles be
removed from the garage should have been under the Code and, by extension, under the Fourth
Amendment. (Doc. No. 100 at 20.)
Initially, Foster claims that the evidence shows that Boyle’s seizure was illegal under the
Code for two reasons: (1) Boyle was not acting reasonably in believing the vehicles were
“abandoned,” and (2) the Abandoned Vehicle Code does not authorize the seizure of loose car
parts. (Doc. No. 100 at ¶ 51.) The Court will address these assertions in turn.
First, as noted previously, the Vehicle Code specifically defines the term “abandoned
vehicle:”
A vehicle (other than a pedalcycle) shall be presumed to be abandoned under any
of the following circumstances, but the presumption is rebuttable by a
preponderance of the evidence:
(i)

The vehicle is physically inoperable and is left unattended on a highway or
other public property for more than 48 hours.

(ii)

The vehicle has remained illegally on a highway or other public property
for a period of more than 48 hours.

(iii)

The vehicle is left unattended on or along a highway or other public
property for more than 48 hours and does not bear all of the following:
(A) A valid registration plate.
(B) A current certificate of inspection.
(C) An ascertainable vehicle identification number.
17

(iv)

The vehicle has remained on private property without the consent of the
owner or person in control of the property for more than 24 hours.

75 Pa. C.S.A. § 102 (emphasis added).
In this case, accepting the facts favoring Foster as true, he has rebutted the presumption that
the vehicles were abandoned in accordance with subsection four (iv) by a preponderance of the
evidence.
Officer Boyle testified that the premises showed signs of an operating business: he noticed a
business license on the wall, an engine hoist, a jack, and automobile parts throughout the garage.
(Doc. No. 100 at 21; Boyle Dep. at 38-39.) Despite these observations, Boyle continued with the
towing procedure knowing that a party used the premises as a repair shop. (Doc. No. 100 at 21;
Boyle Dep. at 41-43; Jefferson Dep. at 45-46.) At some point, he spoke to Foster on the
telephone and learned that Foster operated a car business from the garage. Foster told him that
he ran a business out of the garage and that cars located there belonged to other people. (Foster
Dep. at 139.) Boyle also testified that he removed the cars simply because Jefferson wanted
them to be removed, and despite Foster’s direct protests that the vehicles were not abandoned.
(See Boyle Dep. at 65:16-19.) Furthermore, Boyle himself had never before removed a vehicle
from a private automotive business, and could not recall an instance where he removed multiple
vehicles at once from a garage. (See id. at 65, 83-84.) The rare nature of the actions of Boyle
and NSU were confirmed by Administrator Bibbo and Captain Desher. (See, e.g., Bibbo Dep. at
49; Desher Dep. at 22, 29.)
Given these circumstances, Boyle’s reliance on the Abandoned Vehicle Code to support the
propriety of classifying these vehicles as “abandoned” is suspect because Foster has submitted
evidence rebutting the presumption that the vehicles were abandoned by a preponderance of the

18

evidence. Thus, Foster has raised a genuine issue of material fact of whether the seizures were
reasonable. Boyle’s reliance on the Abandoned Vehicle Code may be a defense at trial, but does
not warrant relief at the summary judgment stage because the reasonableness of the seizures is in
question.14
Foster also raises another genuine issue of material fact in regard to whether seizure of the
parts from the garage was improper under the Abandoned Vehicle Code. (Doc. No. 100 at 22.)
He argues that the Code does not contain language authorizing the towing or seizure of loose
automobile parts, and asserts that Boyle made no effort to match the parts with the vehicles, and
did not report or document the towed parts to NSU. (Id. at 22; Boyle Dep. at 105.) Foster is
correct that neither the definition of “abandoned vehicle” in the Vehicle Code nor any language
in the Abandoned Vehicle Code authorizes the seizure of car parts. Thus, the fact that Boyle did
not inventory the parts raises an inference that he knew he was not authorized to seize them

14

Few cases address specific factors a police officer should consider in determining whether a
vehicle is abandoned. However, Mays v. Scranton City Police Dep’t, provides some guidance.
503 F. Supp. 1255 (M.D. Pa. 1980). Mays addressed subpart (iii) of the definition of
abandoned vehicle, which covers unattended vehicles on a highway or other public space. The
Court noted the following factors:
Relevant factors would be the physical condition of the vehicle, the area in which
it had been left, and the length of time it had remained parked in the same
location. In addition, it would appear that the officer would have to consider
whether under the circumstances the vehicle posed a threat to public safety or
health.
Id. at 1262. While in Mays the Court posed these factors as being relevant for consideration
under subpart (iii), they are instructive for police officers in any situation in determining
whether a vehicle is abandoned under the Code. Applying them here where vehicles being
seized have remained in a private garage for some length of time with no threat to public
safety or health, would lend further support to Foster’s claim that the seizures were
unreasonable.
19

under the Code. Consequently, the reasonableness of the seizure of the parts is a genuine issue
of material fact for the jury to consider. 15
Thus, the evidence submitted on the Motions for Summary Judgment shows that Boyle did
not act in objective, good faith reliance on the Pennsylvania Vehicle Code and the Abandoned
Vehicle Code because a reasonably well-trained officer, with a reasonable knowledge of what
the law prohibits, would have known that his actions violated Pennsylvania law and the Fourth
and Fourteenth Amendments.
ii.

Officer Boyle Is Not Entitled to the Protection of Qualified
Immunity

Next, Boyle argues that even if a jury could reasonably find him liable for an unreasonable
seizure under the Fourth Amendment, he is nonetheless entitled to qualified immunity. (Doc.
No. 84-1 at 10.)
Qualified immunity “protects government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The law
regarding qualified immunity is well established:
To determine whether an officer is qualifiedly immune from suit, we ask (1)
whether the officer violated a constitutional right, and (2) whether the right was
clearly established, such that “it would [have been] clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Saucier v. Katz,
533 U.S. 194, 201-02 (2001); see also Anderson v. Creighton, 483 U.S. 635, 640
(1987) (holding that, for purposes of the second question, the right must have
been clearly established in a particularized sense, such that “a reasonable official
would [have understood] that what he [wa]s doing violate[d] that right”).

15

As noted in the earlier recitation of the facts and in the discussion to follow, Foster has
produced evidence of an inference of collusion between Century Motors and employees of the
NSU. Evidence of improper collusion also affects the reasonableness of the seizure and may
be considered by a jury for this purpose.
20

Wray v. Painter, 791 F. Supp. 2d 419, 426-27 (E.D. Pa. 2011) (citing Lamont v. New Jersey, 637
F.3d 177, 182 (3d Cir. 2011)). “While the issue of qualified immunity is generally a question of
law, . . . a genuine issue of material fact will preclude summary judgment on qualified
immunity.” Barkes v. First Correctional Medical, Inc., No. 12-3074, 2014 WL 4401051, at *18
(3d. Cir. Sept. 5, 2014) (citing Deary v. Three Un-Named Police Officers, 746 F.2d 185, 192 (3d.
Cir. 1984)) (internal quotation marks omitted).
The first prong of the qualified immunity analysis requires the Court to determine whether
there has been a constitutional violation. If Foster had failed to produce sufficient evidence on
which a reasonable jury could find a constitutional violation, then summary judgment would be
appropriate because Boyle would have been entitled to qualified immunity as a matter of law.
See Wray, 791 F. Supp. 2d at 426 (quoting Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir.
2002)). Foster, however, has met his burden at the summary judgment stage to establish a
Fourth and Fourteenth Amendment violation. As discussed above, Foster has raised a genuine
issue of material fact as to whether the seizures were unreasonable. Thus, a jury ultimately must
determine whether a constitutional violation has occurred here.
Under the second prong of the qualified immunity test, the Court must decide whether Boyle
violated a clearly established right. Gale v. Sorti, 608 F. Supp. 2d 629, 634 (E.D. Pa. 2009); see
also Walden v. Borough of Upper Darby, 77 F. Supp. 2d 655, 657 (E.D. Pa. 1999) (“The
existence of a clearly established right is a question of law which a district court should
decide.”). If the Court deems the right in question to be clearly established, it must analyze
whether the government official “acted reasonably in depriving the plaintiff of this clearly
established right.” Gale, 608 F. Supp. 2d at 634.

21

In engaging in this analysis, a court must be mindful that the qualified immunity standard
“gives ample room for mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotation
marks omitted). Whether or not the officers made a reasonable mistake as to what the law
requires mandates an inquiry into all factual circumstances surrounding the seizure itself. Gale,
608 F. Supp. 2d at 634.
In this case, however, Foster has presented sufficient evidence to show that Boyle did not
make a reasonable mistake, but intentionally acted unreasonably in seizing the vehicles and
parts. Because of the rebuttable presumption in the Vehicle Code, Boyle’s actions were not
consistent with Pennsylvania law. See 75 Pa.C.S.A. § 102. Reviewing the evidence in the light
most favorable to Foster, Boyle was on notice that he was authorizing an illegal seizure. In this
regard, a further discussion of the facts is appropriate in the context of the qualified immunity
claim made by Boyle.
First, the property he seized was not contraband, but allegedly abandoned property under the
Pennsylvania Abandoned Vehicle Code. Although he had the right to seize the property after
twenty-four hours (or forty-eight hours under local procedures), he ignored objective evidence
that would rebut the presumption that the vehicles in question were abandoned. As noted, the
facts show that there were numerous vehicles inside the garage along with various parts and
signs posted on the wall. (Boyle Dep. at 38-39.) He even spoke to Foster while on the premises
who informed him in effect that the cars were not abandoned. (Id. at 41-43.)
Second, the Abandoned Vehicle Code does not refer to car parts as removable items under its
provisions. See Pa. C.S.A § 7301 et seq. Although an officer might assume that the parts were
covered by the Abandoned Vehicle Code, the presence of the parts and the other indicia on the

22

premises, as noted above, would put him on notice that this garage was an operating business and
not one abandoned by the owner with no interest in the parts.
Third, Boyle never inventoried in writing the seized parts. (Doc. No. 84-2 at ¶ 23.) He was
aware that FBI agents were investigating Century Motors. (Boyle Dep. at 85-86.) His failure to
document the parts while having knowledge of the FBI investigation raises an inference that his
motive in seizing the parts and turning them over to Century Motors may have been for an
improper purpose.
Fourth, Foster produced evidence that a questionable relationship may have existed between
Century Motors and NSU through their ties with retired Highway Sergeant Richard Cray, who
was employed at Century Motors at the time of the towing and coordinated the May 16, 2011
towing for Century. For nine years, Cray worked simultaneously at the Philadelphia Police
Department and Century Motors. (Doc. No. 100 at ¶ 67; Cray Dep. at 11-12, 28-30.) During
this time, Cray was well known by his co-workers. Bibbo, the civilian administrator at NSU,
testified that everyone in her unit knew Cray because he was a police officer. As noted above,
Cray wrote Bibbo a personal handwritten note regarding paperwork about the value of the
vehicles towed on May 16, which raises an inference that the vehicles were given to Century for
resale rather than to return them to their rightful owners. (Doc. No. 100 at ¶ 77; Cray Dep. at
127; Doc. No. 101, Ex. AA.)
In some ways, what occurred here is analogous to what occurred in Kelly v. Borough of
Carlisle, 622 F.3d 248 (3d Cir. 2010). In Kelly, a vehicle passenger filmed a traffic stop and was
subsequently arrested by the recorded officer who confiscated the camera. Before arresting the
defendant for what the officer believed was a violation of the Pennsylvania Wiretap Act, the
officer called an Assistant District Attorney who, based on the facts as described by the officer,

23

advised that he believed that defendant violated the Wiretap Act. The defendant was thereafter
arrested and charged. The charges against him were eventually dropped and the defendant sued
the officer and the Borough of Carlisle under 42 U.S.C. § 1983 alleging violations of the First
and Fourth Amendment. Id. at 251-52.
On the Fourth Amendment claim, the District Court judge granted summary judgment to the
officer based on qualified immunity, because he relied in good faith on the legal opinion of the
Assistant District Attorney. The Court of Appeals reversed. Recognizing that this case was one
of first impression as to whether the police officer’s reliance on legal advice cloaks him with the
protection of qualified immunity, the Third Circuit held that:
[A] police officer who relies in good faith on a prosecutor’s legal opinion that the
arrest is warranted under the law is presumptively entitled to qualified immunity
from Fourth Amendment claims premised on lack of probable cause. That
reliance must itself be objectively reasonable, however, because a “wave of the
prosecutor’s wand cannot magically transform an unreasonable probable cause
determination into a reasonable one.” Accordingly, a plaintiff may rebut this
presumption by showing that, under all the factual and legal circumstances
surrounding the arrest, a reasonable officer would not have relied on the
prosecutor’s advice.
Id. at 255-56 (quoting Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004)).
In view of this holding, the Court of Appeals remanded the case to the District Court for
reconsideration of the grant of qualified immunity on the Fourth Amendment claim. The Court
of Appeals found that the District Court essentially did not evaluate the objective reasonableness
of the officer’s decision to rely on the advice of the Assistant District Attorney, and did not
sufficiently evaluate the state of Pennsylvania law on the Wiretap Act at the relevant time.
On the First Amendment claim, however, the Court of Appeals held that the defendant was
entitled to qualified immunity because there was insufficient case law establishing a right to
videotape police officers during a traffic stop to put a reasonably competent officer on “fair

24

notice” that seizing a camera or arresting an individual for videotaping police during the stop
would violate the First Amendment. In analyzing the First Amendment claim, the Court
interestingly noted:
In determining whether a right is clearly established, it is not necessary that the
exact set of factual circumstances has been considered previously. Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (being “clearly established” does not require that
“the very action in question has previously been held unlawful”). “[O]fficials can
still be on notice that their conduct violates established law even in novel factual
circumstances,” id. at 741, as long as the law gave the defendant officer “fair
warning” that his conduct was unconstitutional.
Id. at 259-60.16
The Court of Appeals reinforced this reasoning in Barkes v. First Correctional Medical, Inc.,
once more rejecting the notion that a shortage of relevant case law is tantamount to not “clearly
established” for purposes of qualified immunity. 2014 WL 4401061, at *16. In this case, an
inmate committed suicide while in state custody. Id. The medical care provider for the prison,
in charge of monitoring the inmate, was a privately-owned third-party company. Id. The
inmate’s family sued the prison under § 1983 on the theory that the inmate had a right to
“supervision of the medical vendor by the prison administrators.” Id. The prison asserted that
the right was not clearly established because there was no case law establishing that a
government entity is responsible for such monitoring. Id. The Court of Appeals held that the
prison’s “myopia runs directly contrary to the Supreme Court’s oft-repeated admonition that ‘a
case directly on point’ is not required for a right to be clearly established.” Id. (citing Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011)).

16

Similarly, Draper v. Darby Twp. Police Dep’t, held that “a right may be ‘clearly established’
where there is some but not precise factual correspondence between relevant precedents and
the conduct at issue.” No. 10-1080, 2012 WL 93178, at *2 (E.D. Pa. Jan. 11, 2012) (quoting
McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001) (internal quotation marks omitted).
25

Boyle makes the same failed argument in this case, claiming that “there is no decisional law
or statute that would have put [Officer] Boyle on notice that removing unauthorized cars at Mr.
Jefferson’s request from Mr. Jefferson’s property would be a violation of the Fourth
Amendment.” (Doc. No. 84 at 10.) However, this argument fails on its face because, as
discussed above, the absence of case law is not equivalent to not “clearly established;” and
furthermore, the Abandoned Vehicle Code itself is a statute that provided Boyle with notice.
If Boyle relied on the definition of “abandoned vehicle” in the Vehicle Code and the
provisions of the Abandoned Vehicle Code in seizing the vehicles, it must be assumed that he
read them and knew about the rebuttable presumption contained in the definition of “abandoned
vehicle.” 75 Pa.C.S.A. § 102. Under the novel factual circumstances here, the rebuttable
presumption in the definition of “abandoned vehicle” gave him, as a competently trained officer,
“fair warning” that his conduct may be in violation of the Abandoned Vehicle Code and even
amount to an illegal seizure under the Fourth Amendment. Moreover, it is clearly established
under the Code that only abandoned vehicles can be removed.
Thus, despite a dearth of case law discussing the contours of what would be a reasonable
seizure of a vehicle in a private garage under the Code, the Vehicle Code clearly defines what is
an abandoned vehicle with the caveat of the rebuttable presumption. 75 Pa.C.S.A. § 102.
Further, the Abandoned Vehicle Code sets forth the procedures for the removal of abandoned
vehicles. Among its provisions, the Code describes the general duties of the Police Department
and salvors (§ 7303.1); provides a concise roadmap of the reporting and removal procedures
(§ 7304.1, § 7311.1); details notice requirements (§ 7305); and specifies how and when
unclaimed vehicles can be disposed of or sold (§§ 7307-09). 75 Pa.C.S.A. § 7301 et seq. But
before these procedures are implemented, Boyle had to make a determination that the vehicles

26

were abandoned. Hanging over Boyle’s claim that he did not have “fair notice” is the rebuttable
presumption, which he evidently ignored in his decision-making despite clear evidence to put
him on notice that his reliance on the Code was unreasonable. Like the defendant in Kelly, who
could not “wave the prosecutor’s wand” to “transform an unreasonable probable cause
determination into a reasonable one,” Boyle may not “wave” the Code here to transform an
unreasonable seizure into a reasonable one. 622 F.3d at 256.
Even assuming arguendo that an officer who relies on the Abandoned Vehicle Code is
presumptively entitled to qualified immunity from a Fourth and Fourteenth Amendment claim
premised on an unreasonable seizure, this presumption and the one in the definition of an
abandoned vehicle have been rebutted by Foster with facts surrounding the seizures.
Consequently, at the summary judgment stage, Foster has raised a genuine issue of material fact
on both prongs of the qualified immunity test in regard to Boyle.
2.

Section 1983 Claim Against City of Philadelphia

The City of Philadelphia moves for summary judgment on Foster’s § 1983 claim alleged in
Count One, arguing that even if Boyle’s actions constituted a violation of Foster’s rights under
the Fourth Amendment, the United States Supreme Court decision in Monell v. New York City
Dep’t of Social Services shields the City from liability. 436 U.S. 658 (1978).
Under Monell, municipalities may be liable under § 1983 only if the alleged unconstitutional
act stems from the implementation of that body’s official policy or custom and not solely by
operation of the doctrine of respondeat superior. 436 U.S. at 690-95. A formal “policy” for
Monell purposes is established when a “decisionmaker possessing final authority to establish
municipal policy with respect to the action issues an official proclamation, policy, or edict.”
Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City

27

of Cincinnati, 475 U.S. 469, 481 (1986)). Absent such a formal policy, municipal liability can be
established by custom. A custom, even if not explicitly authorized by the municipality, must be
“so permanent and well settled as to virtually constitute law” in order for § 1983 liability to
attach. Andrews, 895 F.2d at 1480 (citing Monell, 436 U.S. at 690). “Proof of a single incident
of unconstitutional activity is not sufficient to impose liability under Monell . . . .” City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). In addition to pinpointing a tangible city
policy or custom, a plaintiff must prove a direct causal link between that policy or custom and
the alleged constitutional violation. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Ultimately, whether a policy or custom caused a deprivation of a plaintiff’s rights is a question of
fact for the jury. Andrews, 895 F.2d at 1481 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701
(1989)).
Here, viewing the evidence in the light most favorable to Foster as the nonmoving party, no
reasonable jury could conclude on the facts presented that a policy or custom of the City of
Philadelphia provided a direct causal link to Fourth and Fourteenth Amendment violations
arising from Officer Boyle’s actions. Foster does not provide evidence of any ongoing policy or
custom that would permit the systematic towing of thirty-five vehicles from a private business
establishment. In fact, Foster’s brief highlights evidence showing that the May 16 and May 23
towings were an aberration from the typical towing operation, indicating that no seizure of this
magnitude from private premises had ever occurred before under the guise of the Abandoned
Vehicle Code:
Lieutenant Long told Foster that he was shocked about the bizarre operation of
towing the vehicles by the Neighborhood Services Unit and that Internal Affairs
would look into it.
***

28

On May 26, 2011, Lieutenant Long sent an email to Captain Desher, which read
in relevant part:
Captain Desher,
Thank you for taking my call today in reference to the assignment at 86 West
Johnson St. This is a rather unique situation and I hope that your contacting the
evicted tenant, Jim Foster, will help minimize the need for a formal investigation
and IA
***
Officer Boyle, who has also towed thousands of cars in his position at NSU, could
not name another instance in which vehicles were towed from a closed garage or
an automotive business.
***
[C]ivilian administrator Mary Bibbo, who has worked for NSU for fourteen (14)
years, acknowledged that she has never heard of another instance in which such a
high volume of vehicles was towed from a private garage.
(Doc No. 100 ¶¶ 53, 58-61.)
Accordingly, the seizures here are more akin to a “single incident of unconstitutional
activity” which is not sufficient to impose liability under Monell. See Tuttle, 471 U.S. at 823-24.
Moreover, the unconstitutional activity of Boyle cannot be attributable to the City as his
employer under the doctrine of respondeat superior, but must be sourced from a City policy or
custom, which, as noted, has not been shown here.
In sum, the facts presented by Foster as the nonmoving party do not raise a genuine issue of
material fact that the seizure of the vehicle and the parts was the result of a policy or custom of
the City of Philadelphia. Consequently, the Motion for Summary Judgment of the City of
Philadelphia on Count One will be granted, and the City will be dismissed as a party on the
§ 1983 claim.

29

3.

Section 1983 Claim Against Jefferson

Foster has also made a claim in Count One against Alfred Jefferson under § 1983, alleging
that he acted under color of state law through joint participation with Officer Boyle in the
unlawful seizures before and during the May 16 and May 23, 2011 towings.17
Jefferson is a private citizen, not employed by the state. A private actor can be considered a
state actor under § 1983 in one of two ways. “The first category involves an activity that is
significantly encouraged by the state or in which the state acts as a joint participant.” Boyer v.
Mohring, 994 F. Supp. 2d 649, 657 (E.D. Pa. 2014) (citing Dickerson v. DeSimone, Inc., No. 091551, 2011 WL 3273228, at *2 (E.D. Pa. Aug. 1, 2011)). “The second category of cases
involves an actor that is controlled by the state, performs a function delegated by the state, or is
entwined with government policies of management.” Id.; see also Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1265 (1994) (quoting Lugar v. Edmonson Oil Co., 457 U.S.
922, 937 (1982)) (“[A] private actor is subject to liability under section 1983 . . . . because he has
acted together with or has obtained significant aid from state officials, or that his conduct is
otherwise chargeable to the state.” ).
In this case, only the joint participation or action standard is applicable because on April 9,
2013, the Honorable Petrese Tucker to whom this case was originally assigned, held in an
Opinion denying the Motions to Dismiss of Jefferson and Century Motors, that Foster only
alleged enough evidence in the Amended Complaint to support the joint action theory. (Doc.
17

Jefferson preliminarily argues that the removal of the vehicles, in of itself, is not a seizure
within the meaning of the Fourth Amendment. (Doc. No. 87 at 5.) A “seizure” occurs under
the Fourth Amendment when there is some meaningful interference with an individual’s
possessory interest in that property. Soldal v. Cook County, 506 U.S. 56, 61 (1992). Here,
Foster has alleged sufficient facts in his Omnibus Response to Defendants’ Motions for
Summary Judgment to prove that there was such interference with vehicles in his possession
and a resultant seizure. (Doc. No. 100.)
30

No. 25.) Therefore, this Court will limit its analysis of § 1983 liability against Jefferson to the
“joint action” theory.
Under the “joint action” standard, “[i]n order to establish the requisite level of joint
participation and collaboration, a plaintiff must aver the existence of a ‘pre-arranged plan
[between the police and a private entity] by which the police substituted the judgment of [a]
private part[y] for their own official authority.’” Boyer, 994 F. Supp. 2d at 657 (citing Cruz v.
Donnelly, 727 F.2d 79, 80 (3d Cir. 1984)); see also Cahill v. Live Nation, 512 F. App’x 227,
230-31 (3d Cir. 2013).
Additionally, joint action cannot be one-sided: “[M]erely calling the police, furnishing
information to the police, or communicating with a state official does not rise to the level of joint
action necessary to transform a private entity into a state actor.” Cooper v. Muldoon, No. 054780, 2006 WL 1117870, at *2 (E.D. Pa. Apr. 26, 2006).
i.

Jefferson Is a State Actor
a.

Pre-Arranged Plan Between Jefferson and Boyle

Foster claims that Jefferson acted under color of state law under the joint action theory by
willfully participating in a pre-arranged plan with Boyle during the May 16 and May 23 towings.
In his Motion for Summary Judgment, Jefferson argues that no pre-arranged plan existed because
Jefferson merely called the police on PennDOT’s recommendation and had no prior contact with
the police regarding Foster’s eviction prior to his interaction with Boyle. (Doc. No. 87 at 12;
Jefferson Dep. at 64, 69.) Jefferson argues that his interaction with Boyle was akin to calling or
furnishing information to the police, activities that do not support a § 1983 claim under the joint
action test.
Foster argues to the contrary, and the Court agrees, that there is evidence that the relationship
between Jefferson and Boyle consisted of more than just one phone call: “Jefferson and Boyle
31

collaborated on a complex, multi-day towing operation that was unprecedented in volume for
Officer Boyle . . . .” (Doc. No. 100 at 18.) Foster has presented facts showing that “[t]he
collaboration between Boyle and Jefferson consisted of at least three in-person meetings, the
completion of the PennDOT MV952-PP forms, several telephone conversations and two full-day
towing sessions, which involved the towing of a total of [thirty-five] vehicles.” (Doc. No. 100 at
18; Boyle Dep. at 26-32, 37-40, 72-73.) This activity goes well beyond the factual activity in the
cases cited by Defendants in which a pre-arranged plan was not formed. Viewing this evidence
in the light most favorable to Foster, a genuine issue of material fact exists as to whether
Jefferson engaged in a pre-arranged plan with Boyle.
b.

Substitution of Judgment

Jefferson also argues that Boyle exercised his exclusive authority and judgment in making
the decision to tow the vehicles because he conducted his own independent investigation,
verified that Jefferson owned the property, and decided that the vehicles were considered
abandoned under Pennsylvania law. (Doc. No. 87 at 15; Boyle Dep. at 33, 42, 49.)
Foster argues, however, that the evidence shows Boyle did not rely on his own personal
judgment in determining that the vehicles were “abandoned” under the Code, but also relied on
Jefferson’s judgment. Foster has shown that Jefferson gave Boyle the roadmap to follow and in
effect guided him through the seizure process by giving him (1) unfettered access to the
property; (2) providing Boyle with the Writ of Possession; (3) verifying on the PennDOT MV952PP forms that the vehicles were abandoned; and (4) encouraging him to remove the vehicles
from the garage. (See Doc. No. 87-1 at ¶¶ 31, 35, 48-52.) In addition, Boyle testified that he
noticed a business license on the wall, an engine hoist, a jack, automobiles, and parts in the
garage on May 16, 2011, which would have put him on notice that the vehicles were not
abandoned. (Doc. No. 100 at 18; Boyle Dep. at 38-39.) Boyle also testified that Foster
32

personally informed him that the cars were not abandoned. (Boyle Dep. at 41-43.) Despite the
evidence showing that the vehicles were not abandoned, Boyle removed the vehicles because the
owner of the property wanted them removed. (Doc. No. 100 at 18; Boyle Dep. at 62).18
Accordingly, there is a genuine issue of material fact as to whether Boyle exercised his own
independent judgment or in fact substituted Jefferson’s judgment for his own.
Based on the foregoing, and viewing the evidence in the light most favorable to Foster, there
is sufficient evidence for a reasonable jury to find that Jefferson was a “joint participant,” and
therefore a state actor. Moreover, the Court has already found that the manner in which the
vehicles were seized rises to the level of a violation of the Fourth and Fourteenth Amendments at
the summary judgment stage. Thus, Jefferson’s Motion for Summary Judgment on the § 1983
claim in Count One will be denied.
ii.

Jefferson Is Not Entitled to Qualified Immunity

As a state actor, Jefferson is not entitled to receive the benefit of the qualified immunity
defense.
In Kauffman v. Pennsylvania Society for the Prevention of Cruelty to Animals, the
Honorable Stuart Dalzell, a judge of this Court, set forth the applicable legal standard to
determine whether a private defendant is entitled to qualified immunity. 766 F. Supp. 2d 555
(E.D. Pa. 2011). In Kauffman, the private defendants were employees of Pennsylvania Society
for the Prevention of Cruelty to Animals (“PSPCA”), a private non-profit corporation. Id. The
employees were sued under § 1983 for the seizure of animals from a private residence pursuant

18

Additionally, Foster produced evidence showing Jefferson’s animus towards Foster and his
motivation to work with Boyle in removing the vehicles from the garage. The May 16 seizure
occurred less than a week after Foster published an editorial “Trouble in Tascoland,”
criticizing Philadelphia Councilwoman Marian Tasco, who was a personal friend of Jefferson.
33

to a search warrant. Id. In his Opinion, Judge Dalzell noted the applicable law, which is quoted
here at length, as follows:
The Supreme Court in recent times has decided two cases involving the assertion
of the qualified immunity defense by private defendants, Wyatt v. Cole, 504 U.S.
158, (1992), and Richardson v. McKnight, 521 U.S. 399 (1997). In Wyatt, the
Court examined “whether qualified immunity, as enunciated in Harlow [v.
Fitzgerald, 457 U.S. 800 (1982)] is available for private defendants faced with
§ 1983 liability for invoking a state replevin, garnishment, or attachment statute,”
and found “[t]hat answer is no.” 504 U.S. at 168-69. In Richardson, it concluded
that “private prison guards, unlike those who work directly for the government, do
not enjoy immunity from suit in a § 1983 case.” 521 U.S. at 412. While Wyatt
bluntly stated that the rationales supporting qualified immunity “are not
transferable to private parties,” 504 U.S. at 168, Richardson explained that “Wyatt
did not consider its answer to the question before it as one applicable to all private
individuals.” 521 U.S. at 404 (emphasis in original). To determine whether
PSPCA officers may be entitled to qualified immunity from suit under § 1983
when they assist in law enforcement, we must follow Wyatt 's teaching that:
[W]e have accorded certain government officials either absolute or
qualified immunity from suit if the tradition of immunity was so
firmly rooted in the common law and was supported by such
strong policy reasons that Congress would have specifically so
provided had it wished to abolish the doctrine. If parties seeking
immunity were shielded from tort liability when Congress enacted
the Civil Rights Act of 187—§ 1 of which is codified at 42 U.S.C.
§ 1983—we infer from legislative silence that Congress did not
intend to abrogate such immunities when it imposed liability for
actions taken under color of state law. Additionally, irrespective of
the common law support, we will not recognize an immunity
available at common law if § 1983's history or purpose counsel
against applying it in § 1983 actions.
504 U.S. at 164 (internal quotation marks and citations omitted).
It seems clear under Wyatt that whether qualified immunity for particular
defendants existed at common law in 1871 is the threshold inquiry that must take
place before any investigation of whether such immunity would comport with §
1983's history or purpose. The statement in Richardson that we must “look both
to history and to the purposes that underlie government employee immunity in
order to find the answer,” 521 U.S. at 404 (emphasis added), and Richardson's
exploration of the immunity doctrine's purposes after finding “no conclusive
evidence of a historical tradition of immunity,” id. at 407, are not to the contrary.
Richardson quoted language from Wyatt suggesting that both common law
support and consonance with § 1983's purposes are prerequisites for qualified
34

immunity: “[T]his Court has nonetheless accorded immunity where a ‘tradition of
immunity was so firmly rooted in the common law and was supported by such
strong policy reasons that Congress would have specifically so provided had it
wished to abolish the doctrine.’” Id. at 403 (emphasis added) (quoting Wyatt, 504
U.S. at 164 (quoting Owen v. City of Independence, 445 U.S. 622, 627 (1980)
(quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)))). And Richardson's
examination of both the common law and the immunity's purposes may be
ascribed to the Court's thoroughness and not to any intent to revise Wyatt 's test.
Kauffman, 766 F. Supp. 2d at 563-64.
Here, nothing rooted in the common law would support Jefferson’s claim to qualified
immunity. Insofar as the purposes that underlie governmental employee immunity, Richardson
noted that there are essentially three reasons behind the doctrine of qualified immunity. 521 U.S.
at 409. First, the most important concern is that a government official will act with unwarranted
timidity out of the fear of being sued if he is not afforded qualified immunity. Id. Second, there
is a need to ensure that “talented candidates” in the private sector hired to support the state in
performing an official function are not “deterred by the threat of damages suits from entering
public service.” Id. at 411. Third, a lawsuit may distract public employees from their duties. Id.
These policy concerns do not apply at all to a private individual like Jefferson who, in this
case, used the Police Department to further his own private interests in having vehicles removed
from his private property. Fear of suit was his least concern because as a private owner of a
garage leased to a business establishment, he would or should have comprehensive insurance
coverage for his actions. Moreover, talented individuals would not be deterred from
governmental service based on the lawsuit filed against Jefferson here. Finally, the concern that
a lawsuit may distract a public employee from his duties does not apply here. Even if it would
create a distraction, in Richardson, the Court held “the risk of distraction” alone cannot be
sufficient grounds for immunity.” Id. Given the unique situation here involving Jefferson, no

35

purpose for granting qualified immunity as discussed in Richardson would be served in affording
Jefferson the defense of qualified immunity.
Although Jefferson does not rely upon a more recent United States Supreme Court decision,
Filarsky v. Delia, in which the Court held that a private attorney employed part-time by a
governmental entity was entitled to qualified immunity under limited circumstances, a discussion
of Filarksy is warranted.19 132 S. Ct. 1657, 1666 (2012). In this case, a municipality hired a
private attorney on a part-time basis to conduct an interview and investigation of a municipal
employee suspected of abusing disability leave. Id. at 1660-61. The investigation culminated in
a search of the suspected employee’s home, leading the employee to sue the attorney and other
municipal officials under § 1983. Id. at 1661. The Supreme Court found that the attorney should
be granted qualified immunity because there was no dispute that historically, qualified immunity
was available for the sort of investigative activities undertaken by the attorney. Id. at 1662. In
its analysis, the court in Filarsky looked to general principles of tort immunities and defenses
available at common law, and exhaustively explored the history since the inception of § 1983 in
1871 of private individuals carrying out public functions and being privately sued
simultaneously. Id. The Court concluded that there was a history, albeit a “varied” one, of
“individuals receiving immunity for actions taken while engaged in public service on a
temporary or occasional basis.” Id. at 1665. Once the Court established a historical foundation
for qualified immunity for investigative activity, it further held that “immunity under § 1983
should not vary depending on whether an individual working for the government does so as a
full-time employee, or on some other basis.” Id. Most importantly, the Supreme Court in

19

Filarsky distinguishes, but does not overrule, the holdings in Wyatt and Richardson. 132 S.
Ct. 1657, 1666-67.
36

Filarsky reaffirmed the reasoning and vitality of Wyatt and Richardson, the two decisions cited
by Judge Dalzell in his analysis in Kauffman. See generally id. at 1666-68.
Jefferson’s situation is very different from the attorney’s situation in Filarsky because
Jefferson was not retained by the City in any manner to promote the public good. The Court in
Filarksy, referring to Wyatt, recognized this situation, and noted the distinction between a private
citizen engaging with the state to enhance the “public good” and private citizens engaging with
the state to “pursue[] purely private ends.” 132 S. Ct. at 1667 (“We explained [in Wyatt] that the
reasons underlying recognition of qualified immunity did not support its extension to individuals
who had no connection to government and pursued purely private ends.”). Here, there is no
question that Jefferson, in his actions with Boyle, was pursuing a purely private end: the removal
of Foster’s vehicles from his private property.
One last matter must be discussed with respect to qualified immunity:
In Richardson, the Supreme Court cautioned that “we have answered the
immunity question narrowly, in the context in which it arose . . . . The case does
not involve a private individual briefly associated with a government body,
serving as an adjunct to government in an essential government activity, or acting
under close official supervision.”
Kauffman, 766 F. Supp. 2d at 565 (quoting Richardson, 521 U.S. at 413).
In this case, as discussed above, the facts show that Jefferson’s conduct does not fall under
the three potential categories from which qualified immunity may arise as set forth in
Richardson. Not only was Jefferson’s conduct purely for private purposes and not the greater
societal good, his interaction with the government was not fleeting. Jefferson initially contacted
NSU, met Boyle in person prior to the May 16 and 23 towings, provided Boyle with the Writ of
Possession/Eviction as proof of ownership, granted him access to the garage on May 16 and 23,
and signed the PennDOT MV-925PP forms with Boyle. Such conduct occurred over a sufficient

37

period of time and involved considerable interaction with NSU and Boyle. It was not a brief
association with a government body.
Furthermore, this case involves the seizure of allegedly abandoned cars from a private
garage. This is not an “essential governmental activity.” Jefferson also did not act under close
official supervision. The seizures were done at his initiative, and he did not engage in any
conduct that was “closely” supervised by Boyle.
a.

Good Faith Affirmative Defense

Despite Jefferson not being entitled to qualified immunity, he is entitled to assert good faith
as an affirmative defense at trial. The Supreme Court in Wyatt opened the door to this defense,
holding that “we do not foreclose the possibility that private defendants faced with § 1983
liability under Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) could be entitled to an
affirmative defense based on good faith and/or probable cause . . . .” 504 U.S. at 169. On
remand from Wyatt, the Fifth Circuit held that “[p]rivate defendants should not be liable under
§ 1983 absent a showing of malice and evidence that they either knew or should have known of
the statute’s constitutional infirmity.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1276 (3d Cir. 1994) (citing Wyatt v. Cole, 994 F.3d 1113, 1120 (5th Cir.), cert. denied,
510 U.S. 977 (1993)) (internal quotation marks omitted). The Third Circuit has adopted this
affirmative defense, and defined “malice” for purposes of this defense to mean a “subjective
appreciation” by the private state actor that his act infringed on the plaintiff’s constitutional
rights. Id. The court held that: “‘good faith’ gives state actors a defense that depends on their
subjective state of mind, rather than the more demanding objective standard of reasonable belief
that governs qualified immunity.” Id. at 1277.

38

Jefferson’s subjective state of mind is for a jury to determine and cannot be disposed of on
summary judgment. Wolfe v. Horn, 130 F. Supp. 2d 648, 659 (E.D. Pa. 2001). A genuine issue
of material fact exists as to whether Jefferson believed the cars were abandoned. His resort to
NSU to remove the cars from his private garage knowing that Foster was periodically removing
them to return the cars to their owners raises another factual issue as to whether he was acting in
good faith. For this reason, the good faith defense is not a basis for summary judgment on Count
One as to Jefferson.
4.

Section 1983 Claim Against Century Motors
i.

Century Motors Is a State Actor

Century Motors is a state actor for § 1983 purposes by virtue of maintaining an ongoing
salvor relationship and contract with the City of Philadelphia. Under this contract, the City
would provide Century Motors with towing assignments and Century Motors would be
responsible for towing the vehicles in accordance with state law.
In another case, a salvor was held to be a state actor under § 1983 under the same
circumstances. In Mays v. Scranton City Police Department, a private tower acting pursuant to
the Abandoned Vehicles Code claimed that he could not be held liable for damages under
§ 1983. The Court disagreed, holding:
It is precisely because [the salvor] removed the car pursuant to state law,
however, that exposes him to liability under 42 U.S.C. § 1983. As the Court of
Appeals for the Ninth Circuit in Stypmann v. City of San Francisco, 557 F.2d at
1341-42 noted:
The towing company detains the vehicle and asserts the lien for
towing and storage charges pursuant to a statutory scheme
designed solely to accomplish the state’s purpose of enforcing its
traffic laws. Thus, the private towing company is a ‘willful
participant’ in a joint activity with the State or its agents, and there
is a ‘sufficiently close nexus between the State and the challenged
action of the (towing company) so that the action of the latter may
be fairly treated as that of the State itself . . . .
39

In sum [the salvor] clearly acted ‘under color of state law,’ and because of the
governmental involvement surrounding the tow and detention of the vehicle, [the
salvor’s] conduct is properly attributable to the Commonwealth as ‘state action.’
503 F. Supp. 1255, 1264 (M.D. Pa. 1980) (citations omitted) (footnotes omitted).
Even towing companies, which have less responsibility than salvors under Pennsylvania law,
have been held to be state actors, albeit in other jurisdictions. Tarantino v. Syputo, No. 0303450, 2006 WL 1530030, at *7 (N.D. Cal. June 2, 2006) (“[T]owing companies are deemed to
be state actors because they tow vehicles in response to orders by law enforcement
officials . . . .”; Goichman v. Rhueban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir. 1982) (“[A]
private towing company acting at the behest of a police officer and pursuant to a statutory
scheme designed solely to accomplish the state’s purpose of enforcing its traffic laws, acts under
color of state law for purposes of section 1983.”). Since salvors engage in more conduct than
towing companies under the Abandoned Vehicle Code, it follows inexorably that a salvor like
Century Motors is a state actor.
ii.

Century Motors Is Not Entitled to Qualified Immunity

Century Motors argues that even if it is deemed to be a state actor, it is entitled to the
qualified immunity defense. (Doc. No. 86 at 65.) However, the same analysis that was used in
denying Jefferson qualified immunity applies to Century Motors. As the Supreme Court said in
Richardson, Wyatt instructs us to look both to the history and the purposes that underlie
governmental employee immunity in order to find an answer to the question of whether the
private party is entitled to qualified immunity. Richardson, 521 U.S. at 404; Wyatt, 504 U.S. at
164.

40

History does not reveal a “firmly rooted tradition of immunity” applicable to salvors.
Century Motors has not supplied this Court with any case in which a salvor has been granted
qualified immunity and none has been found by this Court.
Additionally, none of the three policy considerations enumerated in Richardson are
undermined by denying Century Motors immunity in this case. See Richardson, 521 U.S. at 411
(listing unwarranted timidity from suit, the need to ensure that private “talented candidates” are
drawn to provide services to the state, and the threat of a lawsuit distracting public employees
from their duties as policy considerations in determining whether qualified immunity is
appropriate).
First, unwarranted timidity from suit is not a concern here. As noted in Richardson in regard
to guards employed by a privately-run prison facility, “marketplace pressures provide the private
firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or
‘nonarduous’ employee job performance.” 521 U.S. at 410. Similar reasoning applies to
Century Motors. Century is a private company that voluntarily agreed to sign up as a salvor, and
engages in a business subject to competitive market pressures. In addition to its repair business,
Century Motors receives income as a salvor under the Abandoned Vehicle Code. The City of
Philadelphia does not pay salvors directly. Instead, salvors like Century earn money from
towing and storage fees collected from private parties and the disposition of unclaimed vehicles
or parts. The fact that salvors receive assignments from NSU does not undermine the fact that
they are still private companies subject to competitive market pressures in their industry.
Moreover, as demonstrated by the email from Cray to Bibbo inquiring about paperwork
reflecting the value of the seized vehicles, it is clear that Century is driven as a salvor by the

41

conditions in the marketplace involving the disposition of abandoned vehicles and car parts
rather than by any fear of a lawsuit.
Second, denying Century Motors immunity would not undermine the “need to ensure that
talented candidates are not deterred by the threat of damages suits from entering public service.”
Id. at 411 (citing Wyatt, 504 U.S. at 167). Like the private prison guards in Richardson, Century
Motors is a private company that is organized to perform at a profit. It would be covered by
comprehensive business insurance similar to Jefferson. It is on notice that it must maintain
insurance to protect itself in case of a lawsuit because the City of Philadelphia requires in its
contract with Century that it maintain “in full force and effect, insurance coverage which will
satisfactorily insure [Century Motors] and [the] City against claims and liabilities which could
arise out of the Salvor Agreement with the City.” (Doc. No. 84, Ex. R.) Richardson held that
such insurance policies taken out by private entities that contract with the government
“increase[] the likelihood of employee indemnification and to that extent reduces the
employment-discouraging fear of unwarranted liability potential applicants face.” Id. at 410-11.
Thus, “talented candidates” or companies comparable to Century Motors would not be deterred
from engaging in business as a salvor.
Third, the final Richardson policy consideration is the fear that without the benefit of
qualified immunity, lawsuits may distract employees from their duties. Id. at 411. As noted
previously, Richardson held that “the risk of ‘distraction’ alone cannot be sufficient grounds for
immunity. Since Century Motors would have indemnity insurance, it is unlikely that its
employees would be distracted from their duties.
Century Motors relies on Filarsky v. Delia to support its claim that it should have the
protection of qualified immunity. (Doc. No. 86 at 65); 132 S. Ct. at 1657. Again, the facts in

42

Filarsky are very different than the facts here involving Century Motors. For the reasons that
Filarsky does not support Jefferson’s claim of qualified immunity, it does not support Century
Motors’ claim.
Finally, Century Motors’ situation here does not fall within the cautionary language in
Richardson, where the Court noted that the case did not involve a private individual briefly
associated with a governmental body, serving as an adjunct to government in an essential
government activity, or acting under close official supervision. 521 U.S. at 409-12. Century’s
interaction with NSU was not brief. It operated under a contract with the City and towed cars
and took parts that were pointed out by Officer Boyle. It expended considerable time storing the
vehicles and parts, and returning cars to their owners. Thereafter, paperwork on the results of
Century’s activity was sent to NSU. Such actions by Century are not brief but protracted.
Moreover, similar to Jefferson, Century Motors is not acting as an adjunct to government in
an essential government activity. As noted above, the seizure of allegedly abandoned cars from
a private garage is not an “essential government activity.”
The third category, whether Century acted under close supervision, on its face, may seem to
favor Century. Under close analysis though, it does not. While Century operates in a regulated
environment with a contract with the City of Philadelphia, the regulation is mainly to insure that
Century is qualified to act as a salvor and reports its activity to ensure compliance with the law.
It is not paid by the City and derives its profits from transactions with private individuals or
entities. The only alleged supervision it receives is the assignment where to tow cars from and
what cars to tow. When it does so, and later disposes of the vehicles, it is not doing so under
close official supervision. It is doing so as a private company out to make a profit. The fact that
it must comply with the terms of the contract with the City and the provisions of the Abandoned

43

Vehicle Code, similar to the legal requirements imposed on so many other organizations that do
business with a municipality in a regulated environment, does not mean it operates under “close”
supervision by government employees in its operations. In fact, Cray, Century’s employee,
coordinated the towing on Century’s behalf and Century dealt with owners of the vehicles
seeking their return on its own. The fact that at NSU’s direction Century did not charge the
owners a fee for towing or storage does not convert the relationship to “close” supervision.
Accordingly, Century Motors is not entitled to qualified immunity and its Motion for Summary
Judgment on Count One will be denied.
a.

Good Faith Affirmative Defense

Although Century Motors is not entitled to qualified immunity, it may assert a good faith
affirmative defense at trial similar to Jefferson. The determination of Century Motors’ subjective
state of mind is a question of credibility for the jury. Wolfe, 130 F. Supp. 2d at 659. Again,
Foster has raised a genuine issue of material fact as to Century Motors’ good faith. As discussed
infra, a genuine issue of material fact exists as to whether Century Motors conspired with NSU
to seize the cars and parts improperly to further its own parts business. See section V.D, infra.
Thus, as with Jefferson, the good faith defense is not a basis for summary judgment for Century
Motors.
B.

Abuse of Process Claims Against City Defendants, Jefferson, and Century
Motors

City Defendants, Jefferson, and Century Motors move for summary judgment on Count Two
of the Amended Complaint alleging the state law claim of abuse of process. Abuse of process is
a tort “defined as the use of legal process against another primarily to accomplish a purpose for
which it is not designed.” Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. Ct. 2008). In order
to prevail on such a claim, Plaintiff must show that “defendant (1) used a legal process against
44

the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, and
(3) harm has been caused to the plaintiff.” Id.
In Pennsylvania, courts interpret the meaning of “legal process” referred to in the first prong
of this tort “broadly, and [it] encompasses the entire range of procedures incident to the litigation
process . . . . including discovery proceedings, the noticing of depositions and the issuing of
subpoenas.” Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 310 (3d Cir. 2003)
(citations omitted) (emphasis added).
As to the second prong, that the process was used primarily to accomplish a purpose for
which it was not designed, the court in Lerner noted: “[I]t is immaterial that the process was
properly issued, that it was obtained in the course of proceedings that were brought with
probable cause and for a proper purpose, or even that the proceedings terminated in favor of the
person instituting or initiating them. The subsequent misuse of the process, though properly
obtained, constitutes the misconduct for which the liability is imposed . . . .” Lerner, 954 A.2d at
1238-39.
1.

Abuse of Process Claim Against Jefferson

Viewing evidence in the light most favorable to Foster, he has shown that Jefferson
committed the tort of abuse of process. The process that Jefferson abused was the Writ of
Possession he obtained on January 21, 2011.
In early February 2011, armed with the writ, Jefferson had a Sherriff evict Foster.
Thereafter, while the door was padlocked, Jefferson and Foster had an arrangement to allow
Foster to remove vehicles when Foster contacted Jefferson. Rather than continue this
arrangement, Jefferson misused the writ by contacting NSU and convincing its representative,
Officer Boyle, that the vehicles were abandoned knowing that this was not the case. Thus, at the

45

summary judgment stage, Foster has shown that Jefferson used legal process or the writ against
Foster primarily to accomplish a purpose for which it was not designed and caused Foster harm
stemming from the seizure of the vehicles.
2.

Abuse of Process Claims Against City Defendants

Foster also claims that the City of Philadelphia through NSU and Officer Boyle committed
the tort of abuse of process. Foster, however, has not identified any specific legal process that
was abused.
Neither Boyle nor the City of Philadelphia resorted to legal process in seizing the vehicles.
They were not involved with obtaining the Writ of Possession nor with any procedure incident to
the litigation process. Here, Boyle and NSU allegedly relied only on the Pennsylvania
Abandoned Vehicles Code in seizing the vehicles. The Code does not require that litigation
commence before a seizure takes place.
Accordingly, since Foster has not come forward with any evidence showing a genuine issue
of material fact, the abuse of process claim as alleged in Count Two will be dismissed as to the
City Defendants.
3.

Abuse of Process Claim Against Century Motors

For the same reason that the City Defendants are not liable for abuse of process, Century
Motors is not liable. There is no evidence that Century Motors engaged in any conduct incident
to litigation. Consequently, the abuse of process claim as alleged in Count Two against them
will be dismissed.
C.

Conversion Claims Against City Defendants, Jefferson, and Century Motors

In Count Three, Foster alleges state law conversion claims against each Defendant for the
May 16 and 23, 2011 towings based on the physical seizure, transportation, and subsequent
damage to the vehicles and loss of parts.
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Conversion is “an act of willful interference with a chattel, done without lawful justification,
by which any person entitled thereto is deprived of use and possession.” Norriton E. Realty
Corp. v. Central-Penn Nat’l Bank, 254 A.2d 637, 638 (Pa. 1969) (citations omitted). Conversion
can take one of three forms:
(1)

Acquiring possession of the goods, with an intent to assert
a right to them which is in fact adverse to that of the owner;

(2)

Transferring the goods in a manner which deprives the
owner of control; or

(3)

Seriously damaging or misusing the chattel in defiance of
the owner’s rights.

Id. The intent required is not of conscious wrongdoing, but merely to exercise control over
goods which is inconsistent with the plaintiff’s rights. Id.
Here, Foster has raised a genuine issue of material fact as to whether each of the remaining
Defendants, without lawful justification, willfully interfered with his property. Defendants argue
that there was lawful justification, but this claim is one that may be a defense at trial. It does not
overcome the genuine issue of material fact that Foster has raised at the motion for summary
judgment stage.
1.

Conversion Claim Against Boyle

Foster claims that by seizing the vehicles, Boyle enabled the transfer of the vehicles and parts
while simultaneously using his authority to deny Foster access to them. Taking the facts in the
light most favorable to him, Foster has raised a genuine issue of material fact regarding whether
Boyle transferred the vehicles, and if that transfer deprived Foster of control over them. These
are the elements of conversion.
Boyle argues in the alternative, however, that even if a reasonable jury could hold him liable
for conversion, he would be entitled to immunity under the Pennsylvania Political Subdivision
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Tort Claims Act (“the Act”), 42 Pa.C.S.A. §§ 8541-64. The Act provides municipalities with
general immunity for tort liability. Boyle claims that as a City employee, he is covered by, and
should receive, the benefit of the immunity afforded to municipalities and its employees. The
Act provides in part:
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 or any person.
42 Pa.C.S.A. § 8541.
The Act does provide for a limited waiver of its general immunity in the
following circumstances:
(a) Liability imposed.--A local agency shall be liable for damages on
account of an injury to a person or property within the limits set
forth in this subchapter if both of the following conditions are
satisfied and the injury occurs as a result of one of the acts set forth
in subsection (b):
(1) The damages would be recoverable under common law or a
statute creating a cause of action if the injury were caused by a
person not having available a defense under section 8541
(relating to governmental immunity generally) or section 8546
(relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency
or an employee thereof acting within the scope of his office or
duties with respect to one of the categories listed in subsection
(b). As used in this paragraph, “negligent acts” shall not
include acts or conduct which constitutes a crime, actual fraud,
actual malice or willful misconduct.
(b) Acts which may impose liability.--The following acts by a local
agency or any of its employees may result in the imposition of
liability on a local agency:
(1) Vehicle liability . . .;
(2) Care, custody or control of personal property . . .;
(3) Real property . . .;
(4) Trees, traffic controls and street lighting . . .;
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(5) Utility service facilities . . .;
(6) Streets . . .;
(7) Sidewalks . . .;
(8) Care, custody or control of animals . . .;
42 Pa.C.S.A. § 8542 (emphasis added).
The eight exceptions enumerated above should be narrowly interpreted. Lockwood v. City
of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 1988) (“Because of the clear intent to insulate
government from exposure to tort liability, the exceptions to immunity are to be strictly
construed.”).
Generally, an individual municipal employee is liable to the degree of his employer’s
liability:
An employee of a local agency is liable for civil damages on
account of any injury to a person or property caused by acts of the
employee which are within the scope of his office or duties only to
the same extent as his employing local agency and subject to the
limitations imposed by this subchapter.
42 Pa.C.S.A. § 8545.
As noted, however, there is an exception to this protection if the employee’s actions causing
the injury constitute a crime, actual fraud, actual malice, or willful misconduct:
In any action against a local agency or employee thereof for
damages on account of an injury caused by the act of the employee
in which it is judicially determined that the act of the employee
caused the injury and that such act constituted a crime, actual
fraud, actual malice or willful misconduct, the provisions of
sections 8545 (relating to official liability generally), 8546
(relating to defense of official immunity), 8548 (relating to
indemnity) and 8549 (relating to limitation on damages) shall not
apply.
Id. § 8550 (emphasis added).
Willful misconduct has been defined as conduct “which the perpetrator recognized was
misconduct and which was carried out with the intention of achieving exactly that wrongful
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purpose.” In re City of Philadelphia Litigation, 938 F. Supp. 1264, 1271 (E.D. Pa. 1996), aff’d
158 F.3d 723 (3d Cir. 1998). Put simply, “the term ‘willful misconduct’ is synonymous with the
term ‘intentional tort.” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (internal quotation
marks omitted). “The existence of willful misconduct is a question of law that ‘must be
judicially determined.’” Kuzel v. Krause, 658 A.2d 856, 860 (Pa. Commw. Ct. 1995) (quoting
Pa.C.S.A. § 8550)).
Boyle’s conduct could be considered willful misconduct when viewing the facts in the light
most favorable to Foster. Boyle’s control and transfer of the vehicles amounted to misconduct
because he ignored the objective evidence described above that the vehicles were not abandoned.
Furthermore, he turned a blind eye to the unique circumstances of this particular towing
assignment in light of his professional experience at NSU. He admitted that while he had been
involved in over a thousand tows, he had never towed this number of vehicles from a private
garage. Moreover, he took parts from the garage without inventorying them. This evidence
lends credence to Foster’s claims that Boyle acted in this way for the purpose of benefitting both
Jefferson and Century Motors. Thus, his actions deprived Foster of control, use, and possession
of the vehicles, and under the facts here constitute conversion. Summary judgment on Count
Three against Boyle will not be granted.
2.

Conversion Claim Against City of Philadelphia

As noted above, the Pennsylvania Political Subdivision Tort Claims Act generally absolves
local agencies and municipalities from liability:
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 or any other person.
42 Pa.C.S.A. § 8541.
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Because Boyle’s conduct, when viewed in the light most favorable to Foster, amounts to
willful misconduct, the conversion claim based on this misconduct as to him does not fall into
one of the eight narrow exceptions to municipal liability for acts of negligence laid out in § 8542
of the Act. 42 Pa.C.S.A § 8542. But “[a]s for intentional torts, although municipal employees
themselves can be held liable for acts of crime, actual fraud, actual malice or willful misconduct,
the City cannot be held liable for an injury caused by the criminal, fraudulent, malicious, or
willful/intentional misconduct of the employee.” Gallashaw v. City of Philadelphia, 774 F. Supp.
2d 713, 718 (E.D. Pa. 2011) (citations omitted) (internal quotation marks omitted). Accordingly,
the City of Philadelphia will be dismissed as a defendant to the conversion claim alleged in
Count Three of the Amended Complaint.
3.

Conversion Claim Against Jefferson

A reasonable jury could find here that Jefferson’s complicity with Boyle in the seizure of the
vehicles and parts in the possession of Foster renders him responsible for the tort of conversion
alleged in Count Three. As noted previously, Jefferson instigated the seizure of the vehicles by
contacting NSU and providing Boyle with the means to seize the vehicles under the pretext of
the Abandoned Vehicles Code. Jefferson’s conduct in assisting Boyle resulted in the transfer of
the vehicles and concomitant loss of control over them by Boyle. Therefore, summary judgment
will be denied for Jefferson as to Count Three.
4.

Conversion Claim Against Century Motors

A reasonable jury could also find, based on Foster’s evidence, that Century Motors is liable
for the conversion of the vehicles and parts in the possession of Foster that Century towed from
86 West Johnson Street. First, it is undisputed that they acquired possession of the vehicles and
parts when they physically towed them to their place of business. Moreover, as a salvage
business, Century Motors may assert a right to the vehicles and parts that is adverse to the owner
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through the salvage process. Second, towing the vehicles and parts involves a transfer, thereby
depriving Foster of control over them. Finally, Foster claims that there was damage to the towed
vehicles in that Century Motors returned vehicles to third parties with parts missing. (Doc. No.
100 at ¶ 79-80.) These facts constitute sufficient evidence of conversion and present genuine
issues of material fact for a jury to consider. Thus, summary judgment on Count Three as to
Century will be denied.
D.

Civil Conspiracy Claims Against City Defendants, Jefferson, and Century
Motors

Lastly, Foster claims that Jefferson and Century Motors conspired with NSU and Officer
Boyle to deprive Foster of his property. (Doc. No. 100 at 26.)
To establish the tort of civil conspiracy, Foster must show:
(1)

[A] combination of two or more persons acting with a
common purpose to do an unlawful act or to do a lawful act
by unlawful means or for an unlawful purpose;

(2)

[A]n overt act done in pursuant of the common purpose;
and

(3)

[A]ctual legal damage.

Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008).
Further, mere conclusions of law are not sufficient to support a cause of action for
conspiracy. See Clay v. Advanced Computer Applications, Inc., 536 A.2d 1375, 1382 (Pa.
Super. Ct. 1988), rev'd on other grounds, 559 A.2d 917 (Pa. 1989). “Proof of malice, i.e. an
intent to injure, is an essential part of the conspiracy cause of action . . . .” See e.g., Grose v.
P & G Paper Prods., 866 A.2d 437, 440 (Pa. Super. Ct. 2005) (citing Thompson Coal Co. v. Pike
Coal Co., 412 A.2d 466, 472 (Pa. 1979)); Doltz v. Harris & Assocs., 280 F. Supp. 2d 377, 389
(E.D. Pa. 2003).

52

Foster claims that the factual circumstances showing “joint action” among Jefferson, Boyle,
the City of Philadelphia, and Century Motors constitute a sufficient evidentiary basis for the tort
of civil conspiracy to survive summary judgment. The Court agrees in part. The City of
Philadelphia cannot be held liable for the state law tort of civil conspiracy under the Political
Subdivision Tort Claims Act. 42 Pa.C.S.A. §§ 8541-64.
Based upon the evidence presented in conjunction with the summary judgment motions,
however, there is a genuine issue of material fact as to whether Boyle, Jefferson, and Century
Motors engaged in a civil conspiracy. Viewing the facts discussed above in the light most
favorable to Foster, a jury may reasonably conclude that these three Defendants combined with a
common purpose to unlawfully deprive Foster of the cars and parts that he either owned or over
which he had custody.
Additionally, the Pennsylvania Political Subdivision Tort Claims act cannot save Boyle from
potential liability for conspiracy. Conspiracy is an intentional tort and willful misconduct
triggers the exception to immunity for individual employees under the Act. Based on the
evidence, Boyle has committed such misconduct.
The City of Philadelphia, however, will be dismissed as a defendant on the civil conspiracy
claim alleged in Count Four for the same reasons discussed in the conversion claim in Count
Three. Similar to conversion, civil conspiracy is an intentional tort that is not included in the list
of eight exceptions to municipal liability enumerated in § 8542 of the Act. Moreover, the City
cannot be held liable for Boyle’s willful misconduct.
VI.

CONCLUSION
Based upon the foregoing, Jefferson’s Motion for Summary Judgment will be denied in its

entirety. The City of Philadelphia’s Motion for Summary Judgment will be granted in its

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entirety and the City is dismissed as a defendant in this case. The Motions for Summary
Judgment of Officer Boyle and Century Motors will be granted on Count Two only. An
appropriate Order follows.

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