Zaloga et al v. Borough of Moosic et al
MEMORANDUM (Order to follow as separate docket entry) re 190 MOTION for Relief from Judgment. Signed by Honorable Matthew W. Brann on 3/22/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EDWARD ZALOGA, D.O., C.P.A., :
CORRECTIONAL CARE, INC.,
BOROUGH OF MOOSIC,
MOOSIC BOROUGH COUNCIL, :
MOOSIC BOROUGH PLANNING :
MOOSIC BOROUGH ZONING
BOARD OF ADJUSTMENTS,
Civil Action No. 3:10-CV-2604
MARCH 22, 2017
Plaintiffs ask the Court to overturn its entry of judgment against them,
entered after the United States Court of Appeals for the Third Circuit reversed my
prior entry of judgment in Plaintiffs favor. For the reasons that follow, the Court
will not grant Plaintiffs requested relief.
Plaintiffs Jeanne Zaloga, Edward Zaloga, D.O., C.P.A., and Correctional
Care Inc. filed a complaint against Defendants Borough of Moosic, Moosic
Borough Council, Moosic Borough Planning Commission, Moosic Borough
Zoning Board of Adjustments, Joseph Mercatili (in both his individual and official
capacities), Joseph Dente, Thomas Harrison, Bryan Fauver, James Durkin, John J.
Brazil, and Willard Hughes on December 21, 2010. There is a long, complex
procedural history well known to the parties and now, I expect, to the Court of
Appeals. I only reference what is relevant here.
On June 16, 2015, I granted summary judgment on nearly all claims and
against nearly all Defendants. Because the matter was rather convoluted, I was
explicit in my Order, ECF No. 177, that “the only claims and parties that survive
the motion for summary judgment are Edward Zaloga and Correctional Care Inc,
Plaintiffs, versus Joseph Mercatili, Defendant, for three claims – retaliation in
violation of the First Amendment pursuant to 42 U.S.C. §1983; conspiracy under
42 U.S.C. § 1983; and civil conspiracy pursuant to state common law.” I deferred
entering final judgment as to the dismissed Defendants.
Defendant Mercatili filed an interlocutory appeal, and the Court of Appeals
reversed. The mandate of the Court of Appeals stated:
It is now hereby ORDERED and ADJUDGED by this Court that the
order of the District Court entered June 16, 2015 is hereby REVERSED
and the case REMANDED for further proceedings consistent with this
The conclusion portion of the opinion attached to the mandate states:
For the foregoing reasons, we will reverse the District Court’s order
denying Mercatili’s motion for summary judgment on the basis of
qualified immunity and remand with instructions to enter judgment in his
Accordingly, on December 1, 2016, in accordance with both my prior Order
granting summary judgment and the mandate of the Court of Appeals, I entered
final judgment in favor of all Defendants.
Plaintiffs saw error in the December 1, 2016 Order and filed a Motion for
Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)3 on
ECF No. 184.
That rule states:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
December 29, 2016. Plaintiffs argue that Defendant Mercatili incorrectly briefed
his appeal, and that the Court of Appeals was somehow unaware of the two
conspiracy claims and failed to dispose of them. I respectfully disagree for two
First, the Court of Appeals was clearly aware of all the claims prior to
directing me to enter judgment in Mercatili’s favor. Page 7 of the Court of
Appeals Opinion states: “The District Court granted summary judgment on all
counts against all Defendants except for Counts I, II, and IV against Mercatili.”
Second, once the Court of Appeals found that Mercatili had qualified
immunity as to the retaliation claim, qualified immunity was also then applicable to
the federal conspiracy claim; consequently, there was no unlawful act remaining in
order for the Pennsylvania conspiracy claim to survive. As to the federal
conspiracy claim, “a § 1983 conspiracy claim only arises when there has been an
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
actual deprivation of a federal right.”4 “If persons are immune from Section 1983
liability , they must be immune from Section 1983 liability for conspiring to do
those acts.”5 As to the Pennsylvania conspiracy claim, "absent a civil cause of
action for a particular act, there can be no cause of action for civil conspiracy to
commit that act."6 With no unlawful acts or deprivation of a federal right
remaining, there is no cause of action for conspiracy.
Once the Court of Appeals held that Mercatili was immune from liability for
First Amendment retaliation, he also became immune from liability for conspiring
to retaliate under Section 1983 and it removed the underlying act required for the
Pennsylvania common law claim of conspiracy.
Plaintiffs also argue that error was committed because they had named
Mercatili in both his official and individual capacities, and the action still remains
as to him in his individual capacity. I respectfully suggest that Plaintiffs
misapprehend the nature of official and individual capacities.
It is well settled that “personal-capacity suits seek to impose personal
Arneault v. O'Toole, 864 F. Supp. 2d 361, 407 (W.D. Pa. 2012), aff'd on other grounds,
513 F. App'x 195 (3d Cir. 2013).
McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992).
Pelagatti v. Cohen, 370 Pa. Super. 422, 432, 536 A.2d 1337, 1342 (1987).
liability upon a government official for actions he takes under color of state law.”7
“Official-capacity suits, in contrast, “generally represent only another way of
pleading an action against an entity of which an officer is an agent.”8 “As long as
the government entity receives notice and an opportunity to respond, an
official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity.”9 “It is not a suit against the official personally, for the real
party in interest is the entity.”10 Accordingly, what Plaintiffs misread is that when
the Borough of Moosic was dismissed from this suit, so to was the action against
Mercatili in his official capacity, as duplicitive of the action against the Borough.
To put it another way, citing Defendant, “the qualified immunity question was
always about the personal capacity claim against Mercatili.”11
A separate Order will issue denying Plaintiff’s motion for all of the
Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed.
2d 114 (1985) (internal citations omitted).
Id. at 166.
Def. Br. ECF No. 201 at 3.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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