TAHA v. BENSALEM TOWNSHIP et al
MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS GRANTED; ETC.. SIGNED BY HONORABLE WENDY BEETLESTONE ON 3/28/16. 3/28/16 ENTERED AND E-MAILED, MAILED TO UNREP.(jl, )
FOR PUBLICATION -
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BUCKS COUNTY PENNSYLVANIA,
BUCKS COUNTY CORRECTIONAL
FACILITY, and UNPUBLISH LLC,
BUCKS COUNTY CORRECTIONAL
FACILITY RECORDS/ RECORDS
CUSTODIAN EMPLOYEES JANE
AND/OR JOHN DOE #1-6, BUCKS
COUNTY PENNSYLVANIA, TERRANCE
P. MOORE, FRANK NOONAN and
WILLIAM F. PLANTIER
Plaintiff Daryoush Taha brings this putative class action suit against, inter alia, Bucks
County and the Bucks County Correctional Facility (collectively, “the County Defendants”),
alleging that the County Defendants published his expunged arrest record on a publicly available
electronic search tool in violation of Pennsylvania’s Criminal History Record Information Act
(“CHRIA”). Before the Court are the parties’ respective motions for summary judgment. The
County Defendants assert that they did not disseminate criminal history record information as
defined by CHRIA, that Plaintiff is not entitled to damages, and that Plaintiff’s requests for
injunctive and declaratory relief are moot. Plaintiff opposes and moves for partial summary
judgment only on the issue of liability. In addition to the moving papers, the Court held oral
argument and solicited supplemental briefings from the parties prior to issuing this decision.
On September 29, 1998, Plaintiff Daryoush Taha (“Taha”) was arrested by members of
the Bensalem Police Department and transported to the Bucks County Correctional Facility.
Defendant’s Statement of Undisputed Material Facts ¶¶ 1-2 (“Def. Facts”); Plaintiff’s Response
to Defendant’s Statement of Undisputed Material Facts ¶¶ 1-2 (Pl. Resp.”). Personnel at the
Bucks County Correctional Facility took Taha’s photograph and he was subsequently charged
with harassment, disorderly conduct, and resisting arrest. Def. Facts ¶¶ 3-5; Pl. Resp. ¶¶ 3-5.
Taha was released one day later. Id. On January 5, 1999, Taha entered the Accelerated
Rehabilitative Disposition (“ARD”) program. On January 31, 2000, Judge R. Barry McAndrews
of the Court of Common Pleas of Bucks County issued an order directing the Clerk of Courts of
Bucks County, the Bucks County District Attorney, the district court, and the arresting agency to
expunge Taha’s “arrest and other criminal records,” and directed Bensalem Township to retrieve
all arrest records from federal and state agencies that had been issued the information. Def. Facts
¶¶ 10-11; Pl. Resp. ¶¶ 10-11.
In January of 2011, the County Defendants created an electronic search tool that would
retrieve data contained in the Offender Management System (“OMS”) and make it available to
the public (“the Inmate Lookup Tool”). Def. Facts ¶¶ 13-15; Pl. Resp. ¶¶ 13-15; Plaintiff’s
Statement of Undisputed Facts (“Pl. Facts”) ¶¶ 4-6; Defendants’ Response to Plaintiff’s
Statement of Undisputed Facts (“Def. Resp.”) ¶¶ 4-6. The following data from Taha’s 1998
arrest was available on the Inmate Lookup Tool: a color photograph of Taha from the shoulders
up, wearing a blue shirt and pictured against a gray background; sex; date of birth; height;
weight; race; hair color; eye color; citizenship; incarceration location; dated committed to
incarceration; release date; case number for the crime charged; and “DC, HARASS” listed under
“Charge Information.” Pl. Facts ¶ 11; Def. Resp. ¶ 11; Def. Resp. Exhibit A, p. 3. Additional
fields – unfilled in Taha’s case – were available for: complexion; hair length; marital status; FBI
number; state ID; current housing section; current housing cell; current housing block; current
housing bed; alias information; detainer information; bond information; and, under “Charge
Information,” the grade, date of offense, and degree. Id.
In September or October of 2011, Taha discovered that his 1998 incarceration
information was publicly available through the Inmate Lookup Tool. Def. Facts ¶¶ 24-27; Pl.
Resp. ¶¶ 24-27. Taha was furious about being included on the website and his wife was
similarly outraged and frustrated. Def. Facts ¶¶ 28-29; Pl. Resp. ¶¶ 28-29. Taha testified that he
has a “very proud family,” and that his mother stated that Taha’s arrest and incarceration
information was “shameful” and “tarnish[ed] the family name.” Def. Facts ¶ 31; Pl. Resp. ¶ 31.
Taha further testified that, as a result of the information being available online, he had difficulty
sleeping and suffered “sadness, anger, misery,” and humiliation in front of friends and family.
Def. Facts ¶¶ 46-47; Pl. Resp. ¶¶ 46-47.
There is no evidence that Taha was ever denied employment, terminated from a position,
or subjected to an adverse employment action because of the information on the Inmate Lookup
Tool, and Taha has not alleged that he suffered any pecuniary or economic loss as a result of the
Inmate Lookup Tool. Def. Facts ¶¶ 37-38, 44-45; Pl. Resp. ¶¶ 37-38, 44-45.
Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), “is appropriate
where there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 345 (2010) (citations
and internal quotation marks omitted). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis
in original). “A genuine issue is present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”
Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-26 (1986); Anderson, 477 U.S. at 248-52). A fact is material if it might affect
the outcome of the suit under the governing law. See Scheidemantle v. Slippery Rock Univ. State
Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). “The reviewing court should view the
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). However, to
prevail on a motion for summary judgment, “the non-moving party must present more than a
mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably find for
the [non-movant].’” Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)
(citing Anderson, 477 U.S. at 252).
1. Criminal History Record Information
Pennsylvania’s Criminal History Record Information Act prohibits the dissemination of
“criminal history record information” to an individual or non-criminal justice agency without
first extracting “all notations of arrests, indictments or other information relating to the initiation
of criminal proceedings where: (i) three years have elapsed from the date of arrest; (ii) no
conviction has occurred; and (iii) no proceedings are pending seeking a conviction.” 18
Pa.C.S.A. § 9121(b)(2). The parties disagree as to whether Taha’s information available on the
Inmate Lookup Tool falls under the purview of CHRIA as criminal history record information,
which the statute defines as “[i]nformation collected by criminal justice agencies concerning
individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable
descriptions, dates and notations of arrests, indictments, informations or other formal charges
and any dispositions arising therefrom.” 18 Pa.C.S.A. § 9102 (emphasis added). The County
Defendants argue that the “and” signifies that all of the listed items are necessary to qualify the
material as criminal history record information. Taha argues that the “and” should be read in the
disjunctive; that is, criminal history record information can consist of any of the items listed in
The statute’s language is plain; the presence of any of the enumerated data identifies the
material as criminal history record information. See e.g. Doe v. Zappala, 987 A.2d 190 (Pa.
Commw. Ct. 2009) (“criminal history record information only applies to: (1) identifiable
descriptions, (2) dates and notations of arrests, (3) the criminal charges, and (4) dispositions . . .
investigative information that does not fall within one of the above four categories is not
expungeable under the CHRIA”) (emphasis added). The County Defendants mistakenly rely on
Dep’t of the Auditor General v. Pa. State Police, 844 A.2d 78, 80-81 (Pa. Commw. Ct. 2004) in
support of their claim that all four elements are necessary to classify material as criminal history
record information; in that case, the court simply lifted the definition verbatim from CHRIA
without further analysis.
The disjunctive reading of “and” is supported both by Pennsylvania Supreme Court
precedent and the Pennsylvania Attorney General. In interpreting Pennsylvania law, this Court
is bound by the decisions of the Pennsylvania Supreme Court. See Wirth v. Aetna U.S.
Healthcare, 469 F.3d 305, 309 (3d Cir. 2006). Where necessary to avoid absurd results, the
Pennsylvania Supreme Court has read “and” to mean “or” in statutes with language similar to
CHRIA. See e.g., Penn. Labor Relations Bd. v. Martha Co., 359 Pa. 347 (1948) (“We are
convinced that ‘and’ must be interpreted as to include ‘or,’ for it is only in this way that the Act,
as applied to various factual situations, can retain the flexibility necessary to achieve the aim for
which it was intended”); Thornburgh v. Lewis, 470 A.2d 952, 958 (Pa. 1983) (“The presence of
the word ‘and’ between the references [in the statute] does not, as a matter of law, mandate any
such implausible interpretation”). It is notable that Pennsylvania’s lower courts have engaged in
similar interpretation of “and” and “or.” See Appeal of Martin, 381 A.2d 1321, 1322 (Pa.
Commw. Ct. 1978) (“courts are often compelled to construe ‘and’ as meaning ‘or’ and again ‘or’
as meaning ‘and’”); see also Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir.
2000); see also West v. AT&T Co., 311 U.S. 223, 237 (1940) (District courts may give “due
regard, but not conclusive effect, to the decisional law of lower state courts”).
In addition to this precedent, the Pennsylvania Attorney General has published an
extensive CHRIA guide. See Commw. of Pa. Office of Att’y Gen., CRIMINAL HISTORY
RECORD INFORMATION ACT HANDBOOK (7th ed. 2013) (hereinafter “CHRIA
Handbook”). Although not binding Pennsylvania’s Supreme Court – and thus, not binding on
this Court – the Attorney General’s interpretation is nevertheless “entitled to great weight.”
McDowell v. Good Chevrolet-Cadillac, Inc., 397 Pa. 237, 245 (1959) (citing Federal Deposit
Ins. Corp. v. Bd. of Finance and Revenue, 368 Pa. 463, 471 (1951)). Tellingly, the CHRIA
Handbook notes that criminal history record information “can be contained on ‘rap sheet,’
photograph ‘mug shot,’ fingerprint cards, and reports,” and notes that “[t]his is not a complete
list but some of the more common places to find criminal history record information.” Id. at 5
(emphasis added). Thus, despite the County Defendants’ arguments to the contrary,
Pennsylvania’s chief law enforcement officer has concluded that criminal history record
information is not the equivalent of a “rap sheet.” Def. Mtn. at 8.
Moreover, the County Defendants’ reading is far too narrow in the context of the statute
as a whole and would inevitably lead to absurd or unreasonable results. In enacting CHRIA, the
Pennsylvania legislature sought “to protect individual privacy and dignity.” See Taha v. Bucks
County, No. 12-6867 2014 WL 695205 at *8 (E.D.Pa. Feb. 21, 2014) (“Taha I”) (citing In re
Pittsburgh Citizen Police Review Bd., 16 Pa. D. & C. 5th 435, 445 (Pa. Com. Pl. 2010)).
Pennsylvania’s Statutory Construction Act directs that a court should presume that the legislature
did not intend a result that is “absurd, impossible of execution or unreasonable.” 1 Pa. C.S. §§
1922(1). Yet, according to the County Defendants’ interpretation, a criminal justice agency
could disseminate the identifiable descriptions, dates and notations of arrests, indictments,
informations, and formal charges to the public all without violating CHRIA simply by excluding
the final disposition of the case. In light of the purpose of CHRIA, such an outcome would be
Here, Taha’s 1998 arrest and incarceration information released under the Inmate Lookup
Tool included: a color photograph of Taha from the shoulders up; sex; date of birth; height;
weight; race; hair color; eye color; citizenship; incarceration location; dated committed to
incarceration; release date; case number for the crime charged; and “DC, HARASS” under the
heading “Charge Information.” Pl. Facts ¶ 11; Def. Resp. ¶ 11; Def. Resp. Exhibit A, p. 3. This
data was undoubtedly information collected by a criminal justice agency, arising from the
initiation of a criminal proceeding, and consisting of “identifiable descriptions” and “formal
charges.” 18 Pa.C.S.A. § 9102. Given the unambiguous definition in CHRIA, Pennsylvania’s
rules of statutory construction, relevant decisions by Pennsylvania courts, and the Attorney
General’s CHRIA Handbook, this Court finds that the aforementioned information constituted
criminal record history information. Therefore, Taha’s motion for partial summary judgment is
In order to recover damages for a violation of CHRIA, an individual must first be
“aggrieved.” 18 Pa. C.S.A. § 9183(b). A party is aggrieved if he can demonstrate that he has
standing; that is, “if he can demonstrate that he has a substantial, direct, and immediate interest
in the outcome of the litigation.” Pennsylvania Gaming Control Bd. v. City Council of
Philadelphia, 593 Pa. 241, 259 (2007). The County Defendants argue that Taha has not been
aggrieved because the disclosed material did not constitute criminal history record information.
Because the Court has determined that the County Defendants did, in fact, release criminal
history record information, this argument is rejected.
b. “Actual and Real” Damages
The County Defendants further contend that damages may only be awarded for proven
economic loss, any award of damages would violate Defendants’ Due Process rights, and
punitive damages in this case would be against public policy. Def. Mtn. at 11-12, 19-20. Taha
asserts that he is entitled to recover damages without regard to economic loss. Pl. Opp’n at 16-
17. The parties agree that Taha has not suffered any economic loss. Def. Facts ¶¶ 35-38; Pl.
Resp. ¶¶ 35-38.
CHRIA provides that individuals aggrieved by a violation of the statute “shall be entitled
to actual and real damages of not less than $100 for each violation and to reasonable costs of
litigation and attorney’s fees.” 18 Pa. C.S.A. § 9183(b). The term “actual and real damages” is
undefined in CHRIA. Black’s Law Dictionary defines “actual damages” as “real, substantial and
just damages, or the amount awarded to a complainant in compensation for his actual and real
loss or injury, as opposed on the one hand to ‘nominal’ damages, and on the other to ‘exemplary’
or ‘punitive’ damages.” Black’s Law Dictionary (10th ed. 2014), available at Westlaw
BLACKS. Unrelated Pennsylvania statutes also distinguish between statutory damages and
“actual damages.” See e.g., 73 P.S. § 201-1 et seq. (Pennsylvania Unfair Trade Practices and
Consumer Protection Law) (injured parties “may bring a private action to recover actual
damages or one hundred dollars”) (emphasis added); 42 Pa. C.S.A. § 8315 (identity theft) (a
court may award “[a]ctual damages arising from the incident or $500, whichever is greater”)
Statutes must be construed “so as to give effect to every word contained therein,” and a
court may presume that the legislature “intends to favor the public interest as against any private
interest.” 1 Pa. C.S.A. §§ 1921(a), 1922. Thus, a plain reading of the statute indicates that an
aggrieved individual under CHRIA must suffer actual injury to recover “actual and real
damages.” Because the parties agree that Taha has not suffered any economic injury, he is not
entitled to such damages.
c. Punitive Damages
In Pennsylvania, a plaintiff may recover punitive damages even when he is not entitled to
specific compensatory damages. See e.g., Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97
(1989) (“[e]ven though compensatory damages had not been awarded, punitive damages could
be appropriate”); Sprague v. Walter, 441 Pa. Super. 1, 72 (1995) (“[u]nder Pennsylvania law,
punitive damages need bear no proportional relationship to the compensatory damages awarded
in a particular case”) (citing Kirkbride, 521 Pa. at 193-04). The County Defendants argue that
imposition of punitive damages would be contrary to public policy and violate their Due Process
rights. Taha counters that CHRIA explicitly permits exemplary and punitive damages against
criminal justice agencies, and that to interpret the statute otherwise would render the punitive
damage provisions meaningless.
At the outset, the Due Process clause of the Fifth Amendment provides that “[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law . . . .” U.S. Const.
amend. V (emphasis added). The County Defendants have failed to cite any precedent to support
the suggestion that, as government entities, they are entitled to due process. Further, there is no
precedent for the proposition that punitive damages imposed pursuant to CHRIA are inapplicable
to state agencies. Taha I, 2014 WL 695205 at*4-8 (discussing CHRIA and applicability of
damages). In fact, it appears to be quite the opposite: CHRIA specifically regulates
governmental criminal justice agencies and, in terms of sanctions, specifies that “any person,
including any agency or organization, who violates the provisions of this section shall be subject
to . . . the civil penalties provided in section 9183.” 18 Pa. C.S.A. § 9106 (emphasis added). As
discussed at length in Taha I, several Pennsylvania courts have also held or assumed that CHRIA
provides for damages against government units. See e.g., Schmidt v. Deutch Larrimore Farnish
& Anderson, LLP, 876 A.2d 1044, 1047 (Pa. Super. Ct. 2005) (“We agree with appellant that the
Act clearly provides for civil actions against criminal and non-criminal agencies as well as
individuals; the language . . . makes that clear”); In re Pittsburgh Citizen Police Review Bd., 16
Pa. D. & C. 5th at 442 (stating that, if a local police department violated CHRIA, “the city would
be subject to . . . damage actions brought by persons aggrieved . . . including exemplary and
punitive damages”), aff’d, 36 A.3d 631 (Pa. Commw. Ct. 2011), permission to appeal denied by
44 A.3d 1163 (Pa. 2012). Thus, this Court predicted in Taha I that the Pennsylvania Supreme
Court would find that CHRIA “demonstrates a clear legislative intent to hold government entities
liable for damages for violation of section 9121.” 2014 WL 695205 at *8. Without further
guidance from the Pennsylvania Supreme Court since the decision in Taha I, this prediction is
unchanged. Accordingly, the County Defendants’ motion for summary judgment on the award
of punitive damages is denied.
3. Injunctive Relief
Finally, the County Defendants assert that injunctive and declaratory relief are moot
because the Inmate Lookup Tool no longer provides public access to much of the offending data
and, in particular, Taha’s 1998 incarceration information is no longer available on a central
database. Def. Mtn. at 22. Taha argues that the County Defendants have failed to meet their
burden of demonstrating that injunctive relief is moot.
A defendant “cannot automatically moot a case simply by ending its unlawful conduct
once sued.” Already, LLC v. Nike, Inc., 133 S.Ct. 721, 727 (2013) (citing City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 278 (1982)). Where, as here, a defendant claims that
voluntary compliance renders an issue moot, he “bears the formidable burden of showing that it
is absolutely clear the allegedly wrongful behavior could not reasonable be expected to recur.”
Id. (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Service (TOC), Inc., 528 U.S.
167 (2000)); see also United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953) (“defendants
told the court that the interlocks no longer existed and disclaimed any intention to revive them.
Such a profession does not suffice to make a case moot”).
In support of their motion, the County Defendants have incorporated by reference their
Motion in Opposition to Class Certification (ECF No. 104), in which they assert that “all
information related to [Taha] has been expunged and removed from the County’s OMS
database.” Id. at 11. Attached to the motion are deposition testimony and an affidavit from
Clarke Fulton, Captain of Administrative Affairs (“Fulton”) for the Bucks County Department of
Corrections (Id., Ex. B, Ex. M), in which Fulton stated, respectively, “I believe [the information]
was expunged, but I don’t know that for – [sic],” and “[a]fter the County received notice of this
lawsuit in 2013, the County deleted all information in its [OMS] database related to Plaintiff
Daryoush Taha’s 1998 incarceration” Id., Ex. B at 51-52, Ex. M at 2. Such equivocal statements
do not suffice to meet the formidable burden of demonstrating that injunctive relief would be
moot. Already, LLC, 133 S.Ct. at 727. Accordingly, the County Defendants’ motion for
summary judgment must be denied.
An appropriate Order follows.
BY THE COURT:
/S/WENDY BEETLESTONE, J.
WENDY BEETLESTONE, J.
March 28, 2016
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