Fow v. Pawlowski et al

Filing 88

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTIAN D. FOW,

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Plaintiff,
v.
FRANK PAWLOWSKI, et. al.,
Defendants.

1:12-cv-1970
Hon. John E. Jones III

MEMORANDUM
December 16, 2016
Presently before the Court is the Defendants’ Motion for Summary
Judgment. (the “Motion”) (Doc. 64). Plaintiff Christian Fow (“Fow”) filed a
Complaint (Doc. 1) on October 1, 2012, an Amended Complaint on October 15,
2012 (Doc. 4), and a Second Amended Complaint on December 21, 2012. (Doc.
10). Following a motion for judgment on the pleadings (Doc. 18), Fow filed a
Third Amended Complaint (Doc. 26), which remains the operative complaint in
this matter. Fow asserts claims arising out of his employment with the
Pennsylvania State Police against Frank Pawlowski (“Pawlowski”), Frank Noonan
(“Noonan”), George Bivens (“Bivens”), Lisa Christie, William Horgas (“Horgas”),
Barbara Christie, Wade Lauer (“Lauer”), Randy Kane (“Kane”), James Grove
(“Grove”), Ronald Leidigh (“Leidigh”), Richard Achey (“Achey”), Maynard Gray
(“Gray”), James Adams (“Adams”), Anthony Forray (“Forray”) and Daniel
1

Hasenhauer (“Hasenhauer”). (collectively “Defendants”). The Defendants filed the
instant Motion on June 1, 2016, moving for summary judgment in favor of all
defendants on all counts. (Doc. 64). The Motion has been fully briefed (Docs. 67,
79, 86) and is therefore ripe for our review. For the reasons that follow, the Motion
shall be granted and judgment entered in favor of Defendants on all counts.
I.

BACKGROUND
Plaintiff Christian Fow was a Corporal with the Pennsylvania State Police

Department (“PSP”), where he worked for seventeen years before his retirement on
June 6, 2015. (Doc. 65 ¶ 17). Fow was a Patrol Section supervisor at the PSP
Chambersburg station. (Id., at ¶ 19). In 2010, Fow was one of two Union
Representatives for the Chambersburg station. (Id., at ¶¶23-24).
Defendant Pawlowski was the Commissioner of the PSP from August 2008
until January 2011. (Id., at ¶ 2). Defendant Noonan was the Commissioner of the
PSP from April 2011 until January 2015. (Id., at ¶ 3). Defendant Bivens was the
PSP Deputy Commissioner of Operations from January 2011 until January 2016.
(Id., at ¶ 4). Defendant Lisa Christie was the PSP Disciplinary Officer from May
2010 until May 2012, and now serves as Lieutenant Colonel. (Id., at ¶ 5).
Defendant Horgas was the commanding officer of Troop H in September 2010,
and is now serving as acting Deputy Commissioner. (Id., at ¶ 6). Defendant Gray
was the commanding officer for Troop H from September 2011 until sometime in

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2012. (Id., at ¶ 7). Defendant Lauer was the commanding officer of the
Chambersburg station in September 2010. (Id., at ¶ 8). Defendants Kane and Grove
were Patrol Section supervisors for the Chambersburg station in September 2010.
(Id., at ¶¶ 9-10). Defendant Adams was a Patrol Section supervisor at the
Chambersburg station from October 2010 to June 2011. (Id., at ¶ 11). Defendant
Leidigh was the intake unit supervisor for the PSP Internal Affairs Division in
September 2010. (Id., at ¶ 12). Defendant Achey worked in the PSP Bureau of
Human Resources in the Labor Relations Section, but now is retired. (Id., at ¶ 13).
Defendant Barbara Christie was the Chief Counsel for the PSP in September 2010.
(Id., at ¶ 14). Defendant Forray is a Senior Deputy Attorney General in the
Pennsylvania Office of Attorney General’s Criminal Division. (Id., at ¶ 15).
Finally, Defendant Hasenauer is a Special Agent with the Pennsylvania Office of
Attorney General. (Id., at ¶ 16).
In the summer of 2010, Fow and his fellow Union representative Eric
Campbell filed two en masse grievances on behalf of the members of the PSP
Chambersburg station pursuant to the Collective Bargaining Agreement. (Id., at ¶¶
27, 33). The two grievances, H-301 and H-302, are extremely similar and employ
the same allegations simply directed at different supervisors. H-301 specifically
targets behavior by Lauer and H-302 targets behavior by Grove. (Doc. 66, ex. 11,
att. A, B). While the grievances include examples of the alleged behavior, both

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include the following introductory paragraph, albeit with different names
supplanted:
Members of the Chambersburg Station are being harassed up to and
including this very date through the use of the schedule. This
harassment is a direct result of those certain members engaging in, or
attempting to engage in, protected activities including utilizing the
Chain of Command, utilizing the PSTA for representation, utilizing
the grievance procedure, and representing members during the above
protected activities. In addition, the Chambersburg Command Staff,
specifically Lt Wade LAUER, is imposing discipline upon members
without due process, is using the schedule for reward and punishment,
and is taking punitive and disciplinary actions against members prior
to the completion of appropriate investigations by BIPS. Lt. LAUER
is actively engaging in this conduct through decisions and actions of
his own, and is passively engaging in this conduct by permitting
subordinates to engage in the same conduct, specifically Patrol Sgt.
James GROVE.
(Doc. 66, ex. 11, att. A).
On September 29, 2010, Fow was acting in a supervisory capacity at the PSP
Chambersburg station and received notice of an incident of a mentally unstable
individual making threats over the phone. (Doc. 79, p. 10). Other troopers
responded to the call while Fow remained at the station, but Fow proceeded to the
location after one trooper pressed the panic button on his radio and could be heard
yelling for help. (Id.). Upon arriving to the scene, Fow observed Christopher
Broadwater seated in the backseat of a patrol vehicle. (Id.). The vehicle had a
Mobile Video Recorder (“MVR”) directed toward Broadwater. (Doc. 65, ¶ 38).

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Fow observed Broadwater attempting to escape either his handcuffs or his
seatbelt and warned Broadwater to stop trying to get out of his handcuffs. (Id. at ¶¶
39-40). Several minutes later, Fow was talking with an off duty police officer when
the officer stopped talking mid-sentence to say, “He’s out of the cuffs.” (Id., at
¶¶41-42). Acting upon the assumption that Broadwater was escaping, Fow opened
the patrol vehicle and shot pepper spray into his face, delivered a chest strike to
him and took him to the ground. (Id., at ¶¶ 43-46). Broadwater was transported to
the hospital for treatment. (Id., at ¶ 48).
When an officer with PSP uses less than lethal force and medical attention is
required, the force is reported to Internal Affairs. (Id., at ¶ 55). In keeping with this
policy, Fow self-reported his use of force to Internal Affairs following the incident
with Broadwater. (Id., at ¶ 56). The parties disagree with how the investigation
moved forward from this point. Fow alleges that Kane, Grove and Adams
circumvented his superior Lauer and went to Leidigh at Internal Affairs to lobby
for criminal charges. (Doc. 81, ¶ 53). The Court notes, however, that in support of
this, Fow cites to a specific portion of deposition testimony that in no way supports
this contention.1 (Id.). Defendants, on the other hand, state that Kane asked Lauer
to view the MVR because he felt there were inconsistencies between Fow’s
1

After conclusively stating that Grove, Adams, and Kane circumvented regulations to make
assertions against him, Fow cites to Trooper Hockenberry’s testimony regarding what he
witnessed of the incident with Fow and Broadwater. The Court further notes that Fow’s response
to Defendants’ statement of material facts is littered with conclusory allegations without
evidentiary support.
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summary of the incident and what was captured on the video. (Doc. 65, ¶¶ 52, 53).
Both parties agree that after Internal Affairs received the MVR and conducted
interviews, the investigation was referred to Agent Hasenhauer with the Office of
Attorney General. (Id., at ¶¶ 59-61).
Fow was ultimately charged with Simple Assault and Official Oppression.
(Id., at ¶ 64). The charges were filed by Agent Hasenhauer with the approval of
Senior Deputy Attorney General Anthony Forray. (Id., at ¶ 63). Defendants state
that the decision to prosecute Fow was made by Forray, (Id., at ¶ 62), but Fow
contends that “the Defendants have the final authority on whether to prosecute one
of their own” and that the “DA and the Attorney General did what the PSP
requested.” (Doc. 81, ¶ 62). Fow was suspended without pay during the pendency
of his criminal charges from October 11, 2011 until April 5, 2012. (Doc. 65, ¶ 67).
The magisterial district judge dismissed the charge of Official Oppression and a
jury found Fow not guilty of Simple Assault. (Id., at ¶¶ 68-69).
On October 13, 2010, prior to the filing of criminal charges, Fow was
transferred to the Gettysburg station, placed on restricted duty, and issued a
Restricted Duty Order. (“RDO”) (Id., at ¶¶ 70-73). Defendants Horgas and Lisa
Christie determined that this transfer and RDO was appropriate.2 (Id., at ¶ 73). The
2

The Court notes that Fow has denied paragraph 73 of Defendants’ statement of material facts.
However, in his denial, it is clear that Fow agrees that Lisa Christie and Horgas made this
decision and Fow is disputing the inferences and motivations behind that decision. (Doc. 81, ¶
73).
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RDO contained a “no contact” provision that prohibited Fow from having any
contact, personal or professional, with members of the Chambersburg station.
(Doc. 66, ex. 16, p. 170). While he was stationed at Gettysburg, Fow was no longer
the union representative for the members of the Chambersburg station, but was not
prohibited from acting in that capacity at Gettysburg.3 (Doc. 65, ¶¶ 83-84).
Fow filed nine grievances against PSP from the time he received the RDO
until his retirement. (Id., at ¶¶ 85-94). Pursuant to arbitration awards or settlements,
Fow was reimbursed for all of his legal fees and costs, his 25-day suspension was
rescinded, he was awarded back pay, his leave and seniority were restored, and
received payment for mileage to the Gettysburg station. (Id.).
Fow brings eight counts against the Defendants. Counts I, II, III4, IV, V, VI,
and VII are brought under 42 U.S.C. 1983 and Count VIII is a state law claim.
Count I is a claim of First Amendment retaliation against Pawlowski, Noonan,
Kane, Adams, Grove, Leidigh, Horgas, Lisa Christie and Barbara Christie. Count
II is a claim of First Amendment expressive association against Pawlowski, Lisa

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Fow denies paragraph 84 of the Defendants’ statement of material facts, but does not offer
evidence in support of his denial, and rather argues inferences. (Doc. 81, ¶ 84). The Court
therefore treats paragraph 84 as admitted.
4
Defendants noted in their brief that Count III is stated as a “malicious abuse of process” claim,
seemingly coupling a federal malicious prosecution claim with state law abuse of process. (Doc.
67, p. 24) (See also, Doc. 26, p. 58). Fow did not address this concern in his brief in opposition.
Rather, Fow discussed Count III in light of a federal malicious prosecution claim. (Doc. 79, p.
50). In light of this, we will consider Fow’s claim as a federal malicious prosecution claim.
Therefore, both Defendants’ and Fow’s references to the “state law claims” are understood by
the Court to mean only Count VIII for intentional infliction of emotional distress.
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Christie and Horgas. Count III is a claim of federal malicious prosecution against
Lisa Christie, Forray, and Hasenhauer. Count IV is a claim of procedural due
process against Kane, Grove, Adams, Lisa Christie, Barbara Christie, Leidigh,
Achey, Bivens and Gray. Count V is a claim of civil rights conspiracy against
Kane, Grove, Adams, Lisa Christie, Leidigh, Achey, Forray, Barbara Christie,
Hasenhauer and Gray. Count VI is a claim of equal protection for selective
enforcement against Pawlowski, Noonan, Leidigh and Lisa Christie. Count VII is a
claim of equal protection against Pawlowski, Noonan, Leidigh and Lisa Christie
under the class of one theory. Finally, Count VIII is a claim of intentional infliction
of emotional distress against all defendants.
Due to the number of defendants, the Defendants include in their statement
of material facts how a few of the individuals are involved in the events giving rise
to Fow’s action. (Id., at ¶¶ 98-115). Pawlowski and Noonan were named in the
lawsuit because they were each Commissioners of the PSP for a portion of time
when Fow was placed on restricted duty. (Id., at ¶¶ 100, 104). Bivens was the
Deputy Commissioner of Operations when Fow was placed on restricted duty, and
according to Fow, he was named in the lawsuit because “Bivens was duty bound to
stay on top of discipline matters to aid the Commissioner in his adjudication.”
(Doc. 81, ¶ 108). Chief Counsel Barbara Christie was named in the lawsuit because
of her denial of Fow’s request for reimbursement of legal fees. (Doc. 65, ¶ 109).

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Fow indicates that the “grievance process defeated her retaliatory actions” in this
regard. (Doc. 81, ¶ 109).
Fow’s claims against Lisa Christie arise from “her actions and inactions in
her capacity as the PSP Disciplinary Officer.” (Doc. 65, ¶ 21). Finally, Fow’s
claims against Agent Hasenhauer and Senior Deputy Attorney General Forray stem
from their actions and inactions in their professional capacities relating to the
criminal charges brought against Fow. (Id., at ¶¶ 112-115).
II.

STANDARD OF REVIEW
Summary judgment is appropriate if the moving party establishes “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). A dispute is “genuine” only if there is a
sufficient evidentiary basis for a reasonable jury to find for the non-moving party,
and a fact is “material” only if it might affect the outcome of the action under the
governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162,
172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A court should view the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences therefrom, and should not
evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

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Initially, the moving party bears the burden of demonstrating the absence of
a genuine dispute of material fact, and upon satisfaction of that burden, the nonmovant must go beyond the pleadings, pointing to particular facts that evidence a
genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). In advancing their positions, the parties must support their
factual assertions by citing to specific parts of the record or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.”
FED. R. Civ. P. 56(c)(1).
A court should not grant summary judgment when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh
Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Layshock ex rel. Layshock v.
Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477
U.S. at 247-48) (internal quotation marks omitted).
III.

DISCUSSION

Fow brings seven federal claims based on alleged constitutional violations
and one state law based claim. As a threshold matter, we will address Defendants’

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argument that Defendants Noonan and Pawlowski lack the requisite personal
involvement with any of the federal claims against them. We will then discuss each
federal claim in turn. Next, we will address the state law claim together in light of
Defendants’ argument that it is barred by sovereign immunity. Finally, we will
address Defendants’ argument that all claims are barred by qualified immunity.
A. Noonan and Pawlowski Personal Involvement
Fow brings federal claims against Noonan and Pawlowski in Counts I, VI,
and VII, another federal claim against Pawlowski in Count II, and a state law claim
against both in Count VIII. Each claim arises out of Fow’s Restricted Duty Order
and transfer to the PSP Chambersburg station. The federal claims raise
constitutional violations, brought pursuant to 42 U.S.C. § 1983. Defendants argue
for summary judgment in their favor because Fow has not produced evidence to
show the requisite personal involvement of Noonan or Pawlowski to attach liability
under § 1983.
Defendants are correct in noting that “[a] defendant in a civil rights action
must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988). The required personal involvement may be
evidenced “where a defendant personally directs the wrongs, or has actual
knowledge of the wrongs and acquiesces in them.” Festa v. Jordan, 803 F. Supp.

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2d 319, 325 (M.D. Pa. 2011) (Caputo, J.). Actual knowledge may be inferred from
circumstantial evidence, while “[w]here a supervisor with authority over a
subordinate knows that the subordinate is violating someone's rights but fails to act
to stop the subordinate from doing so, the factfinder may usually infer that the
supervisor ‘acquiesced’ in (i.e., tacitly assented to or accepted) the subordinate's
conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir.1997).
Fow admits in his response to the Defendants’ statement of material facts
that Noonan and Pawlowski were named in this lawsuit because each was the
Commissioner of the PSP at a time while Fow was subject to the restricted duty
order. (Doc. 81, ¶¶ 100, 104). In response to the Defendants’ argument that
Noonan and Pawlowski lack the requisite personal involvement for liability, Fow
claims that “the evidence of record in this case shows the personal involvement of
both of these Defendants in the harm Plaintiff suffered.” (Doc. 79, p. 32).
Curiously, Fow does not cite to the record at all for support of this assertion. (See
id, pp. 32-37). In fact, the only record cite in Fow’s entire argument on this point is
to his own statement of material facts regarding the behavior of Defendant Horgas.
(Id., at p. 34). There has been no citation to any evidence of Noonan or
Pawlowski’s actions in this case.
Fow’s claims of personal involvement by Noonan and Pawlowski rely
simply on the averment that “[i]t was their duty to review and decide the outcome”

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of the restricted duty order. Both Noonan and Pawlowski have submitted
declarations where they freely admit that their role as Commissioner involved
oversight of all members; however, each makes clear that he “had no role in
making the decision to place Corporal Fow on restricted duty” and relied on
subordinates to handle the issue. (Doc. 66, ex. 2, ¶ 6) (See also Doc. 66, ex. 3, ¶ 6).
They go on to state explicitly that they had no involvement with the criminal
investigation of Fow, the decision to prosecute him, or the adjudication of the
internal affairs investigation. (Id., at ex. 2, ¶¶ 7-11) (Id., at ex. 3, ¶¶ 7-10). Noonan
stated that he “possibly” may have been “briefed on after-the-fact occurrences,”
but “had no involvement in the discipline process regarding Corporal Fow.” (Id., at
ex. 3, ¶ 11).
Fow has not offered any evidence to rebut the Defendants’ declarations,
relying on the assumption that “they were the final decision makers.” (Doc. 79, p.
35). Fow states that “[t]heir decisions were informed as a result of their duty to
review, which they admitted to in this case.” (Id.). Noonan and Pawlowski did
admit in their declarations that they exercise oversight over all members, but have
specifically declared that they played no role in the disciplinary actions at issue.
While Fow may believe that “[I]t is simply incredulous that they would not follow,
approve, supervise, then review and decide events when a PSP Trooper was

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charged with a crime and put in front of a jury,” he has offered no direct or
circumstantial evidence to establish that reality. (Id.).
The Third Circuit has made clear that “[a]llegations of participation or actual
knowledge and acquiescence . . . must be made with appropriate particularity.”
Rode, 845 F.2d at 1207. When faced with declarations of the Defendants denying
their involvement, Fow cannot rely solely on a general assumption that the
Commissioner was personally involved with the restricted duty order because he
was at the top of the chain of command. Because Fow has offered no evidence in
support of his § 1983 claims against Noonan and Pawlowski, no reasonable jury
could find them liable for wrongdoing.
Therefore, we shall grant summary judgment in favor of Defendants Noonan
and Pawlowski on all federal claims raised through § 1983, namely Counts I, II,
VI, and VII.
B. Count I- First Amendment Retaliation against Kane, Adams, Grove,
Leidigh, Horgas, Lisa Christie and Barbara Christie
In Count I, Fow claims that he suffered retaliation in violation of the First
Amendment from the above Defendants in response to his filing of the two en
masse grievances. (Doc. 26, ¶225). In order to prevail on a First Amendment
retaliation claim, a plaintiff must show “1) constitutionally protected conduct, (2)
retaliatory action sufficient to deter a person of ordinary firmness from exercising
his constitutional rights, and (3) a causal link between the constitutionally
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protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463
F.3d 285, 296 (3d Cir.2006).
Defendants offer two arguments in favor of summary judgment. First,
Defendants argue that Fow cannot prevail on his First Amendment retaliation
claim because filing the two grievances does not qualify as constitutionally
protected conduct. Second, Defendants argue that Fow has not produced evidence
to establish that his union activities and two grievances were substantial factors in
his restricted duty status. Each argument will be considered in turn.
i.

Protected Activity

For purposes of a First Amendment retaliation claim, a “public employee's
statement is protected activity when (1) in making it, the employee spoke as a
citizen, (2) the statement involved a matter of public concern, and (3) the
government employer did not have ‘an adequate justification for treating the
employee differently from any other member of the general public’ as a result of
the statement he made.” Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d
Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “The question
of whether or not speech is protected by the First Amendment constitutes a
question of law.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir.
2015).

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The first inquiry is whether Fow was speaking as a citizen when he filed the
two en masse grievances. The Supreme Court has held that “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Garcetti, 547 U.S. at
421. Defendants argue that Fow was speaking pursuant to his official duties as a
supervisor by bringing complaints up the chain of command. (Doc. 67, p. 16).
Defendants point to Fow’s deposition where he testified that he felt it was his “job
to look out for the people who were below” him. (Id.) (quoting Doc. 66, ex. 10,
48:3-4). Fow, on the other hand, contends that he spoke in an expressive fashion
pursuant to his association with the Union rather than in response to any official
duty as a corporal. (Doc. 79, p. 41).
Whether a public employee speaks as a citizen and whether the speech
relates to a matter of public concern are often issues discussed in tandem because
the two go hand in hand. However, where a court can easily discern that the
plaintiff’s speech was made as part of his official duties, it is easy to hold that he
did not speak as a citizen and therefore receives no First Amendment protection.
See, e.g., Hill, 455 F.3d at 242. For example, in Hill, a public employee brought a
claim for First Amendment retaliation based on reports he made about his
superior’s conduct. Id. In the complaint, the public employee stated that he made

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these reports “as part of his duties as Manager.” Id. (emphasis in original).
Because of that admission, the Court easily found that his retaliation claim must
fail because he was not speaking as a citizen. Id.
Fow makes a similar admission in his deposition testimony. (See Doc. 66,
ex. 10). Fow was asked to describe his role in conflict mitigation specifically
within his role as corporal, not as a union representative. (Id., at 45:14-15). As part
of his response, Fow stated:
And I felt it was my job to look out for the people who were
below me. I never led from the back pointing my finger. I
always led from the front. Tried to set the example. So when
my people had problems, I never wanted them to direct those
problems themselves. I always wanted them to come to me and
I would tell them too damn bad, you don’t have a bitch, and you
have to just live with it, or I would tell them yes, it sounds
reasonable and I will take it further up the chain from here, you
don’t need to argue with the sergeant or with the lieutenant
about whatever your particular issue is.
(Id., at 48:2-14). While Fow did not explicitly state that he filed the
grievances at issue pursuant to his duties like the public employee in Hill did,
Fow’s testimony illustrates that he viewed his duties as corporal to encompass
bringing complaints from the department up the chain of command. This belies
Fow’s argument that the en masse grievances were not “within his official duties as
a police officer.” (Doc. 79, p. 41). Fow stresses that he “had no official ‘duty’ to
file masse grievances nor to otherwise speak out on mal-administration within the

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PSP,” but regardless of whether that was a technical duty within his job description
as corporal, his testimony makes clear that he viewed it to be part of his job. (Id.).
Fow’s testimony suggests that he did not speak as a citizen when he filed the
en masse grievances, such that we could summarily find that his retaliation claim
must fail. However, in the interests of caution and completeness, we will accept
Fow’s contention that filing the en masse grievances was not pursuant to his duty
as corporal because his claim fails regardless. To be afforded protection under the
First Amendment, a public employee’s speech must also be of public concern. The
Supreme Court has defined when speech is of public concern in the context of the
First Amendment in Snyder v. Phelps, 5623 U.S. 443 (2011):
“Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and concern
to the public.”
Id., at 453 (internal quotations omitted). This inquiry calls upon courts to
examine “the content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147–48 (1983). Personal
grievances cannot constitute speech of public concern. Feldman v. Philadelphia
Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994). Further, “speech that relates solely to
mundane employment grievances does not implicate a matter of public concern.”
Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015).

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Defendants argue that the two en masse grievances were not speech of
public concern because they “were merely the collective gripes of the station
members at Chambersburg Station regarding how the members were being treated
by two of their commanding officers, Lauer and Grove.” (Doc. 67, p. 18). Fow, on
the other hand, characterizes the grievances as “not simply grievances that related
to individualized terms and conditions of employment, but were grievances that
related to the larger problem of retaliation for engaging in these types of
grievances.” (Doc. 79, p. 43). Fow argues that these grievances were premised on
the problem that “troopers were being forced into situations that compromised the
level of service to the public that could only be remedied by equitably applying
police services, and that the safety of the public was coincidental with officer
safety, both of which were being placed at risk.” (Id.).
Looking to the “content, form, and context” of the grievances, we find that
they do not qualify as speech of public concern. Connick, 461 U.S. at 147. Starting
with the content, we note that the grievances themselves concern instances in
which members of the Chambersburg station were harassed by two specific
superiors. (See Doc. 66, att. A, B). The grievances allege that Defendants Lauer
and Grove harassed certain members of the station through the use of the schedule,
demeaning statements, and other similar actions. (Id.). It is clear that the
Chambersburg members “were not speaking as public citizens when they filed

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grievances with their union, but rather as employees voicing private concerns
regarding how they were treated by their employer.” Gwynn v. City of
Philadelphia, 866 F. Supp. 2d 473, 481 (E.D. Pa. 2012), aff'd, 719 F.3d 295 (3d
Cir. 2013). While “in one sense the public may always be interested in how
government officers are performing their duties,” that does not transform an
employee’s issue with his supervisors into a matter of public concern. Borough of
Duryea, Pa. v. Guarnieri, 564 U.S. 379, 399 (2011).
To be sure, the grievances attempt to convert the specific issues with Lauer
and Grove into a public problem by stating that their actions have “had a negative
effect on station moral, productivity, and cohesiveness.” (Doc. 66, att. A, p. 9).
Fow argues that the grievances concern “the effective functioning of statewide
police services.” (Doc. 79, p. 43). However, the reality is that the two grievances
concern explicit instances of alleged misconduct by two superiors at one PSP
station, not the functioning of the PSP in general. They did not raise matters of
public concern, but rather represented the private employment complaints of
Chambersburg members.
The form and context lend credence to the conclusion that there was not a
matter of public concern as well. The speech at issue took the form of an en masse
employee grievance filed with the PSP union. As the Supreme Court recognized,
“[a] petition filed with an employer using an internal grievance procedure in many

20

cases will not seek to communicate to the public or to advance a political or social
point of view beyond the employment context.” Duryea, 564 U.S.at 398. There is
no evidence that these en masse grievances sought to communicate an issue
beyond the problems with Lauer and Grove. Fow testified that his goal in filing the
grievances was “[g]etting the problems at the Chambersburg station fixed.” (Doc.
66, ex. 10, 93:7-9). To agree with Fow and find that these grievances constituted
matters of public concern would allow plaintiffs to “transform everyday
employment disputes into matters for constitutional litigation in the federal courts.”
Duryea, 564 U.S. at 399.
Accordingly, we hold that Fow did not engage in protected activity under the
First Amendment and will grant summary judgment in Defendants’ favor on the
claim of retaliation.
ii.

Substantial Factor

Because we find that Fow did not engage in constitutionally protected
speech for purposes of First Amendment retaliation, we do not reach Defendants’
causation arguments.
C. Count II- First Amendment Expressive Association against Lisa
Christie and Horgas
Fow claims that his First Amendment expressive association freedoms were
abridged when he was transferred from the Chambersburg station and issued the
RDO to not have contact with the members of that station. (Doc. 79, p. 48). He
21

claims that his transfer and the RDO “prevented Fow from being involved in
pursuing [the en masse grievances he filed].” (Id.). Defendants argue that summary
judgment should be granted in their favor because the union’s ability to advocate
its viewpoints was not significantly impacted by Fow’s transfer and RDO. (Doc.
67, p. 23). In response, Fow makes clear that he is claiming that his individual
expressive association rights were violated by the Defendants through the
prevention of him advocating for the en masse grievances at the Chambersburg
station and that he is not asserting claims on behalf of the union. (Doc. 79, p. 48).
Fow claims that “there is abundant evidence upon which these issues should
go to a jury.” (Id.). Ironically, he does not cite to the record at all in support of his
expressive association claim. Neither does he cite to any case law to present the
elements for which an individual must show to prevail on a claim that he was
denied expressive association rights under the First Amendment. Indeed, in most
instances it is the right of the expressive group that is allegedly infringed upon by
state action.
The Supreme Court has “recognized a First Amendment right to associate
for the purpose of speaking, which [it has] termed a ‘right of expressive
association.’” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S.
47, 68 (2006) (quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000)).
Defendants have not argued that participation in the union does not qualify as

22

expressive association, nor would an argument to that effect be successful. Instead,
Defendants point out that “Fow was not stripped of his union membership, but
instead performed station representative duties at his newly assigned station” and
“was able to continue his union association and exercise his contract-based rights
to the grievance process.” (Doc. 86, pp. 15-16). Thus, Defendants argue that the
evidence does not illustrate an infringement upon Fow’s expressive association
rights at all. (Id.).
We agree with Defendants. Fow has not provided any evidence of record to
demonstrate that his right to expressive association was infringed by the
Defendants. Fow maintained his role as a representative for the union upon his
transfer, and was more than able to participate in the grievance procedure,
evidenced by his multiple personal grievances filed after his transfer. (Doc. 65, ¶¶
85-94). He was clearly still an active member of the union. Fow has failed to
present evidence to controvert the Defendants’ motion, relying on conclusory
arguments and sweeping assertions. It is long settled law that “the plaintiff must
present affirmative evidence in order to defeat a properly supported motion for
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Because Fow has failed to demonstrate how his expressive association rights were
infringed by the Defendants’ actions, we shall grant summary judgment in
Defendants’ favor on Count II.

23

D. Count III- Malicious Prosecution against Lisa Christie, Forray and
Hasenhauer
As noted earlier, Fow’s complaint does not make clear whether he is
bringing a claim of federal malicious prosecution pursuant to § 1983 or a state law
claim of abuse of process. (See Doc. 26, p. 58). However, Fow addresses Count III
in terms of a federal malicious prosecution claim and the Fourth Amendment,
suggesting that Count III is in fact a federal malicious prosecution claim brought
pursuant to § 1983, and we will treat it as such. (See Doc. 79, pp. 49-50).
In order to prevail on a § 1983 malicious prosecution claim, a plaintiff must
show that: “(1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in his favor; (3) the defendant initiated the proceeding without
probable cause; (4) the defendant acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a legal proceeding.”
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).
Defendants put forth several arguments in favor of summary judgment. First,
Defendants argue that Fow’s malicious prosecution claim must fail against
Defendant Lisa Christie because she did not initiate a criminal proceeding against
him. (Doc. 67, p. 25). Second, Defendants argue that Defendant Forray is entitled
to prosecutorial immunity on this claim. (Id., at p. 26). Third, Defendants argue
that the final three elements of the malicious prosecution claim are not met. (Id., at
24

pp. 27-31). We will address each argument in turn. At the outset, we note that Fow
has failed to provide a single citation to the record in support of his arguments
against summary judgment on Count III.
Defendants argue that Lisa Christie cannot be held liable for malicious
prosecution because she did not initiate a criminal proceeding against Fow. (Id., at
p. 25). Defendants cite to Hasenhauer’s deposition and the criminal complaint to
show that the criminal charges against Fow were filed by Hasenhauer with
Forray’s approval. (Id.). Fow does not address this argument in his brief in
opposition. In fact, his only mention to Lisa Christie is a conclusory statement that
she participated and facilitated in creating a “hatefully hostile work environment
for the Plaintiff.” (Doc. 79, p. 52). Because Fow has not offered any evidence to
support a finding for Lisa Christie’s involvement, the first element of a malicious
prosecution claim cannot be met. Accordingly, we shall grant summary judgment
in Lisa Christie’s favor on Count III.
Defendants next argue that Forray is entitled to prosecutorial immunity. The
Supreme Court has specifically stated, “[w]e hold only that in initiating a
prosecution and in presenting the State's case, the prosecutor is immune from a
civil suit for damages under [section] 1983.” Imbler v. Pachtman, 424 U.S. 409,
431 (1976). Perhaps in light of this binding precedent, Fow does not address

25

Forray’s claim of prosecutorial immunity at all in his brief in opposition.
Accordingly, we shall grant summary judgment in Forray’s favor on Count III.
This leaves Hasenhauer as the only defendant in Count III. While
Defendants acknowledge that the first two elements of malicious prosecution are
met because Hasenhauer initiated a criminal proceeding against Fow and the
proceeding ended in Fow’s favor, they argue that Fow cannot establish the
remaining three elements. (Doc. 67, pp. 27-31). Specifically, Defendants argue
that: 1) the criminal proceeding against Fow was initiated with probable cause; 2)
the Defendants did not act maliciously or for a purpose other than bringing Fow to
justice; and 3) Fow’s arrest alone does not constitute a Fourth Amendment seizure.
(Id.).
Fow opposes each of these arguments. As to probable cause, Fow simply
states that he “alleges that the criminal charges against him were initiated without
probable cause.” (Doc. 79, p. 51). He makes no citation or mention of the charge
itself, the elements of the charge, or the factual circumstances surrounding it.
Instead, he argues that the charges were influenced by PSP’s motivation to silence
him as a union representative. (Id.). While this argument may be relevant to the
second element concerning the defendant’s purpose, whether probable cause
existed at the time of arrest is a fact driven inquiry that asks the Court to look at the
totality of the circumstances. Johnson v. Campbell, 332 F.3d, 199, 211 (3d Cir.

26

2003). Fow’s argument is devoid of any references to the record or specific facts.
Instead, he relies on his conclusory allegation that there was not probable cause to
arrest him. The criminal complaint, on the other hand, cites to the fact that Fow
never checked Broadwater’s handcuffs, Broadwater was speaking calmly when
Fow pepper sprayed him, and the video seemed to depict that a strike check was
not necessary. (Doc. 67, p. 28) (Doc. 66, ex. 15).
The Third Circuit instructs that probable cause in a § 1983 action is one for
the jury unless, after examining the evidence submitted by the plaintiff and
resolving all inferences in his favor, a reasonable jury could not find a lack of
probable cause. Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998).
Here, the Plaintiff has not cited to any evidence for us to consider on the issue of
probable cause. Fow has presented only conclusory allegation of the Defendants’
improper motives instead of citing to the facts of the Broadwater incident to attack
probable cause. The criminal complaint cites to numerous facts to show probable
cause, and without an argument attacking their validity, no reasonable jury could
find that the criminal complaint lacked probable cause. Accordingly, Fow’s
malicious prosecution claim must fail.
We note for purposes of completeness that Fow’s claim would fail even if
we left probable cause to be determined by the jury. The final element of a
malicious prosecution claim is that “the plaintiff suffered deprivation of liberty

27

consistent with the concept of seizure as a consequence of a legal proceeding.”
Johnson, 477 F.3d at 82. This seizure must rise to the level of a Fourth
Amendment seizure to satisfy the elements of malicious prosecution. Torres v.
McLaughlin, 163 F.3d 169, 175 (3d Cir. 1998). In his brief in opposition, Fow
points to the following as satisfaction of this element:
“Lastly, the PSP used their power and authority over the terms and
conditions of Plaintiff’s day-to-day work environment to see that he
was deprived of the opportunity to defend himself when off-duty or
call himself a police officer and forced to travel many miles
unreimbursed to a distant place of employment every day knowing
this would stress his family. Later he was denied a litany of financial
and personal rights to which he was entitled. He was denied legal fees
for his criminal and civil matter defenses. These conditions are
onerous and amount to severe limitations on his liberty consistent with
an act of seizure.”
(Doc. 79, p. 53). Fow fundamentally misunderstands what constitutes
a seizure. A seizure within the Fourth Amendment is a “meaningful
interference, however brief, with an individual’s freedom of movement.”
Torres v. McLaughlin, 163 F.3d 169, 175 (3d Cir. 1998). Fow’s transfer to
another station in no way amounts to a Fourth Amendment seizure; if that
were the case, nearly every public employee transfer could trigger a § 1983
claim. Fow was free to move about, just not to a specific work station.
Further, it is important to note that Fow’s list of “seizures” was not brought
about as a consequence of the legal proceeding, but as a consequence of the
internal affairs investigation into the Broadwater incident.
28

Fow has failed to adduce evidence to support the elements of a federal
malicious prosecution claim. As such, we shall grant summary judgment in
favor of all Defendants on Count III.
E. Count IV- Procedural Due Process against Kane, Grove, Adams,
Lisa Christie, Barbara Christie, Leidigh, Achey, Bivens and Gray
In his third amended complaint, Fow alleges that the above named
Defendants deprived him of his procedural due process rights by “failing to
properly investigate” Fow’s interaction with Broadwater, failing to follow PSP
guidelines in their investigation, “provid[ing] false or incomplete testimony or
information in administrative hearings or other proceedings” and the criminal
matter, and failing to provide Fow with “adequate notice and opportunity to
provide his side of the story or otherwise defend himself”. (Doc. 26, ¶¶ 243).
Defendants argue that summary judgment is warranted in their favor for two
reasons. Defendants argue that the first four complaints of the Defendants’
behavior do not implicate Fow’s procedural due process rights and that the
evidence makes clear that Fow was afforded adequate notice and opportunity to be
heard. (Doc. 67 pp. 32-33).
Once again, Fow does not cite to the record at all in his response to
Defendants’ arguments for summary judgment on Count IV. (See Doc. 79, pp. 5355). Instead, he offers three pages of conclusory allegations, posed in a narrative
style of what Fow “realized,” “knew”, or “learned.” (Id., at p. 53). He cites to but
29

one case in support of his argument, yet the purpose for which the citation is made
is unclear.5 (Id., at p. 55).
When faced with a motion for summary judgment, “the plaintiff can no
longer rest on such mere allegations, but must set forth by affidavit or other
evidence specific facts” to allow for the possibility that a rational jury would find
in their favor. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561(1992). While Fow has
provided no citations to the record to point the Court to facts that would make out
his claim for a deprivation of procedural due process, Defendants have cited to the
record for each of the nine grievances filed by Fow to show that the process
afforded him adequate notice and an opportunity to be heard. (Doc. 67, pp. 33-36).
For every grievance filed by Fow, he either was represented by counsel at a
hearing and able to present evidence before a hearing examiner who decided his
complaint or settled the grievance with the Defendants. (Id.). This grievance
procedure, clearly utilized by Fow, demonstrates that Fow received adequate
notice and an opportunity to be heard on his objections with the Defendants, and

5

The Court notes that Fow cited to Hill v. Borough of Kutztown, 455 F.3d, 225, 233-234 (3d Cir.
2006). Fow cites to the portion wherein the court affirmed the District Court’s holding the
plaintiff failed to state a claim for a deprivation of procedural due process because he could not
show a property interest in his government job. While the court did go on to find that there may
have been a procedural due process claim because of a loss of reputation, the only mention of the
loss of reputation Fow has made is two one-line mentions in in his third amended complaint.
(Doc. 26, ¶¶ 242(d), 217). Thus, not only is it unclear why Fow has cited to this case, but it
actually points the Court to find against him on this matter.
30

Fow has not provided the Court with any evidence to suggest this was not the case.
As such, we must grant summary judgment in Defendants’ favor on Count IV.
F. Count V- Civil Rights Conspiracy against Kane, Grove, Adams, Lisa
Christie, Leidigh, Achey, Forray, Barbara Christie, Hasenhauer and
Gray
In Count V, Fow alleges that the above Defendants participated in a civil
conspiracy to deprive him deprive him of his rights by “silenc[ing] Fow as an
effective Union Delegate” in order to “ensure that public attention was deflected
away from the manner in which PSP troopers are trained in using force by
criminally investigating and prosecuting Fow for actions he was taught and trained
in by the PSP.” (Doc. 26, ¶ 248). Defendants move for summary judgment for
three reasons: first, Defendants argue Fow cannot show a conspiracy between
governmental agents because they are considered to be one under Land v. City of
Bethlehem, 457 Fed. App’z 188, 193 (3d Cir. 2012). (Doc. 67, p. 37). Second,
Defendants argue that Fow cannot maintain a civil conspiracy claim because there
has been no underlying constitutional violation. (Doc. 67, p. 37). Finally,
Defendants argue that Fow has no evidence to prove a conspiracy. (Id., at p. 38).
Fow’s response yet again fails to include a single citation to the record. His
arguments suffer from the same flaw as Count IV in that they comprise wholly
conclusory allegations with no citation to evidentiary support. (See Doc. 79, 5660). While Fow recognizes that a civil conspiracy can be shown through

31

circumstantial evidence (Id., at p. 57), he does not include any reference to such
evidence. As the non-moving party, Fow has a duty to “designate specific facts
showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). Fow has not fulfilled this duty. Without any record support, no
reasonable jury could infer the existence of a civil conspiracy. Fow’s belief that the
Defendants conspired to violate his rights is insufficient to support his claim. As
such, we need not delve in to Defendants’ legal arguments because Count V fails
due to the complete lack of a factual foundation. Accordingly, we shall grant
summary judgment on Count V.
G. Counts VI and VII- Equal Protection against Leidigh and Lisa
Christie
Fow claims that Leidigh and Lisa Christie denied him equal protection of the
law in both Counts VI and VII. Count VI specifies that it is a claim of equal
protection under a selective enforcement theory and is premised on Fow’s
allegation that Leidigh and Lisa Christie “selectively treated” him due to “an
intention to punish or inhibit the exercise of a constitutional right, Fow’s freedom
of expression as a Union Representative to raise matters of public concern in union
grievances.” (Doc. 26, ¶¶ 250-251). He does not identify which law he was denied
protection under, nor does he identify membership in a protected class. Count VII
specifies that it is a claim of equal protection under a “class of one” theory and is
premised on Fow’s allegation that the RDO was overly broad and Fow acted in a
32

way consistent with PSP regulations such that no criminal investigation or
prosecution were warranted. (Id., at ¶ 255).
Defendants move for summary judgment on both counts. Because Fow does
not advance in Count VI that he was part of a protected class, Defendants assume
that Fow is bringing his action under a “class of one” theory like in Count VII.
(Doc. 67, p. 39). The Court notes that we view Fow’s complaint in this way as
well. To make out a claim of equal protection, a plaintiff must generally specify
that he is a member of an identifiable group. Engquist v. Oregon Dept. of Agr.,
553 U.S. 591, 601 (2008). However, “an equal protection claim can in some
circumstances be sustained even if the plaintiff has not alleged class-based
discrimination, but instead claims that she has been irrationally singled out as a socalled ‘class of one.’” Id. Because Fow has made no claim of membership in a
protected class, we assume both claims are premised on his membership in a class
of one. Defendants argue that both Counts must fail because the Supreme Court
held that a class of one equal protection claim does not apply in the public
employment context under Engquist. (Doc. 67, p. 39).
Fow responds by arguing that the “Defendants’ retaliation and interference
with the rights of expressive association enjoyed by Fow were not in the

33

‘employment context’ i.e., it was not a personal grievance.”6 (Doc. 79, p. 60). He
goes on to say the “record is clear that Fow was clearly not acting as an employee
but as a citizen.” (Id., at p. 61).
The Supreme Court clearly stated in Engquist:
The question in this case is whether a public employee can state a
claim under the Equal Protection Clause by alleging that she was
arbitrarily treated differently from other similarly situated employees,
with no assertion that the different treatment was based on the
employee's membership in any particular class. We hold that such a
“class-of-one” theory of equal protection has no place in the public
employment context.
553 U.S., at 594. Following suit, the Third Circuit held that Engquist
foreclosed a class of one theory of equal protection for a PSP officer in
Skrutski v. Marut, 288 Fed. App’x. 803 (3d Cir. 2008). There, a PSP officer
claimed retaliation and deprivation of equal protection of the law when he
was transferred to a different station as a result of him reporting instances of
inappropriate conduct by fellow PSP officers. Id., at 805. The Court quickly
disposed of his equal protection claim, finding that “[t]his legal avenue is
now clearly foreclosed by the Supreme Court’s recent decision that such
claims are not cognizable in the public employment context.” Id., at 809.
Fow’s argument that his claims are not within the public employment
context defies logic and the clear text of his third amended complaint. Both
6

The Court notes that Fow may have inadvertently stated “it was not a personal grievance”
because his argument rests on the premise that it was personal rather than employment related.
34

Counts VI and VII include language that Fow “was treated differently from
other similarly situated PSP troopers.” (Doc. 26, ¶ 254) (See also id., at ¶
250). His equal protection claim is therefore explicitly premised on his
treatment within his public employment, much like the PSP officer in
Skrutski. Thus, Engquist and Skrutski specifically foreclose Fow’s equal
protection claims and summary judgment shall be granted on Counts VI and
VII.
H. Count VIII- Intentional Infliction of Emotional Distress against All
Defendants
Count VIII is a state law claim against all Defendants for intentional
infliction of emotional distress. (Doc. 26, p. 65). Defendants argue that this claim
is barred by either sovereign or qualified immunity, and in the alternative, the
Court should decline to exercise supplemental jurisdiction over the state claims.
Fow encourages the Court to exercise supplemental jurisdiction and argues that the
Defendants are not entitled to either sovereign or qualified immunity. We shall
continue to exercise supplemental jurisdiction over Count VIII pursuant to 28
U.S.C. § 1367(a) and will discuss each immunity defense in turn.
a. Sovereign Immunity
Pennsylvania’s sovereign immunity statute, codified at 42 Pa.C.S. § 8521,
operates as absolute protection from liability for intentional tort claims for an
employee of the Commonwealth “acting within the scope of his or her employment
35

duties.” Holt v. Nw. Pennsylvania Training P'ship Consortium, Inc., 694 A.2d
1134, 1140 (Pa. Commw. Ct. 1997). While there are nine exceptions to this general
rule of immunity, see 42 Pa.C.S. § 8522, neither party advances an argument that
an exception applies to intentional infliction of emotional distress. Whether Fow’s
claims are barred by sovereign immunity, therefore, depends on whether the
actions that make up his intentional infliction of emotional distress claim were
within the Defendants’ scope of employment. Defendants argue that they were for
two reasons: first, by bringing this action pursuant to § 1983, Defendants argue
Fow has tacitly admitted that each Defendant was acting in their official capacity.
(Doc. 67, p. 43). Second, Defendants argue that all of the actions complained of in
this matter occurred within the employment context. (Id.).
To prevail on a claim of intentional infliction of emotional distress in
Pennsylvania, four elements must be met: “(1) extreme and outrageous conduct,
(2) which is intentional or reckless; (3) it must cause emotional distress, and (4)
that distress must be severe.” L.H. v. Pittston Area Sch. Dist., 130 F. Supp. 3d 918,
927 (M.D. Pa. 2015) (Mannion, J.), aff'd, 2016 WL 6837148 (3d Cir. Nov. 21,
2016). At the outset, we note that Fow’s claim does not make clear exactly which
actions by each defendant make up his claim of intentional infliction of emotional
distress. Without a clear identification of the actions at issue in this claim, it is

36

difficult to decide whether the action occurred within the scope of the Defendants’
employment for purposes of sovereign immunity.
Fow has made the determination of whether Defendants Pawlowski,
Noonan, Lisa Christie, Hasenhauer and Forray were acting in their official
capacities clear through his response to Defendants’ statement of material facts.
(Doc. 81). Fow admitted that Pawlowski and Noonan were named in this lawsuit
because of their employment as Commissioner of the PSP at relevant times. (Id., at
¶¶ 100, 104). He similarly admitted that his claims against Lisa Christie “stem
from her actions and inactions in her capacity as the PSP Disciplinary Officer and
not as a member of the general public.” (Id., at ¶ 110). He made the same
admission in regards to Hasenhauer’s capacity as an investigator for the Attorney
General’s Office and Forray’s capacity as an attorney for the Attorney General’s
Office. (Id., at ¶¶ 12, 115). Fow has admitted that these Defendants’ actions in this
matter stem from their official capacities, and thus they are entitled to sovereign
immunity.
Fow did not make an explicit admission for Defendants Bivens, Horgas,
Barbara Christie, Lauer, Kane, Grove, Leidigh, Achey, Gray and Adams.
However, in his third amended complaint, Fow specifically states that each of
these defendants with the exception of Achey and Gray “is an employer for the
purposes of this action and is individually liable for Plaintiff’s damages.” (Doc. 26,

37

¶¶ 7, 9, 10, 11, 12, 13, 14, 15). Fow therefore brought this action against these
defendants in their official capacity as employers for PSP and sovereign immunity
applies to claims against them as well.
This leaves Achey and Gray as the only Defendants not specifically
designated to be acting in their official capacity for purposes of this litigation.
Despite these being the only defendants not admitted to be acting pursuant to their
employment, we can look at the entire claim and all Defendants and easily hold
that all actions giving rise to a potential claim of intentional infliction of emotional
distress arise within the scope of employment. An action is within the scope of
employment if it is the kind of action the employee is hired to perform, it occurs
within the authorized time and space limits of employment, and is actuated at least
partially to serve the employer. Johnson v. Townsend, 314 F. App'x 436, 440 (3d
Cir. 2008). The actions complained of by Fow, while argued to be done in
furtherance of an improper motive, were still typical employment actions. The
actions at issue include internally investigating an officer, transferring the officer
to another station, issuing a restricted duty order, and filing criminal charges.
These are all actions taken in furtherance of employment, even if the motivation
behind them was impure. See Schell v. Guth, 88 A.3d 1054, 1068-9 (Pa. Cmwlth.
2014).

38

Fow argues that this cannot be possible because “[n]o one can credibly argue
that the PSP authorizes the willful misapplication of its regulations to harm a
fellow employee for lawfully exercising his rights.” (Doc. 79, p. 64). Fow
misunderstands what it means for something to be done “within the scope of
employment.” If it were only possible to act within the scope of employment when
following all rules and regulations, there would never be liability for a tort because
every tort would fall outside of the rules. Even willful misconduct by an employee
does not remove an action from the scope of employment. Holt v. Nw.
Pennsylvania Training P'ship Consortium, Inc., 694 A.2d 1134, 1140 (Pa.
Commw. Ct. 1997). When acting pursuant to their official capacity,
Commonwealth employees enjoy sovereign immunity, and all actions giving rise
to this case occurred within the scope of employment. Id. As such, we shall grant
summary judgment in the Defendants’ favor on Count VIII.7
b. Qualified Immunity
Because we have found that summary judgment is appropriate in
Defendants’ favor on other grounds, we need not reach the defense of qualified
immunity.
IV.

CONCLUSION

7

While the Defendants do not raise an evidentiary insufficiency argument with respect to Count
VIII, the Court notes that, due to the vagueness of Fow’s intentional infliction of emotional
distress claim, and the high bar at which extreme and outrageous conduct is judged, Count VIII
would fail even if sovereign immunity did not apply.
39

For the foregoing reasons, we shall grant Defendants’ motion for summary
judgment. (Doc. 64). A separate order shall issue in accordance with this ruling.

40