Zabresky v. Von Schmeling et al

Filing 123

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/9/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL F. ZABRESKY,

:

Plaintiff

:

CIVIL ACTION NO. 3:12-0020

:

(JUDGE MANNION)

v.
JULIANNE VON SCHMELING,
et al.,

:
:

Defendants
:
MEMORANDUM
Presently before the court is Defendant Juliane von Schmeling’s Motion
for Summary Judgment brought pursuant to Fed. R. Civ. Pro. Rule 56. (Doc.
No. 98).

I.

FACTUAL BACKGROUND
In 1995, Defendant von Schmeling commenced child custody and

support actions against the plaintiff, the father of her child, in the Court of
Common Pleas of Luzerne County, Pennsylvania. (Doc. No. 38). In 2009,
Defendant von Schmeling sought modification of the support order and a
hearing was set for July 14, 2009. On July 6, 2009, the plaintiff alleges he filed
a motion to continue the hearing. Though he claims the motion was accepted
by the clerk of the court, it was not immediately docketed and was thereafter
never granted. The plaintiff did not appear at the July 14, 2009, hearing. At the

hearing Defendant von Schmeling presented her petition for modification and
the Hearing Officer recommended that the plaintiff’s monthly child support
payment be increased by $250.00 from $533.00 to $783.00. (Doc. No. 38;
Doc. No. 47, Att. 2). The plaintiff filed exceptions to the Hearing Officer’s
recommendation. On October 26, 2009, the Honorable Joseph Musto of the
Court of Common Pleas for Luzerne County entered an order denying the
plaintiff’s exceptions, affirming the recommendation, and setting the plaintiff’s
monthly child support payment at $738.00. (Doc. No. 38; Doc. No. 47, Exh. C).
On November 17, 2009, the plaintiff filed a motion for special relief and a stay
which also sought to continue a contempt hearing scheduled for November 24,
2009. Judge Musto denied the request to continue the November 24, 2009,
hearing but did not address the merits of the remainder of the motion. (Doc.
No. 112, Exh. 16). At the November 24, 2009, hearing, Judge Musto found the
plaintiff to be in contempt and placed him on probation for a period of six
months. (Doc. No. 38, Exh. A).
The plaintiff alleges that during the November 24, 2009, hearing he and
his attorney attempted to clarify whether he was to pay $533.00 or $738.00 in
monthly support while awaiting another scheduled hearing in which the plaintiff
planned to dispute the modification. (Doc. No. 112, Exh. 16-17). The plaintiff
alleges that Judge Musto told him and his counsel to pay $533.00. (Id.). The
plaintiff includes a partial transcript from the hearing which does not contain
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any statements by Judge Musto indicating a payment of $533.00 rather than
the amount of $738.00 indicated in the court’s written order was allowed. (Doc.
No. 38, Exh. A at 8-11). Just after the hearing, Defendant Eugene Duffy Jr., a
probation officer, allegedly told the defendant that if he didn’t pay his child
support, he would be arrested. (Id., ¶38)
On December 4, 2009, Defendant von Schmeling contacted Defendants
Michael Quinn, a court support officer, and John Davis, the Director of the
Domestic Relations Section about when the plaintiff was required to pay the
court ordered child support. (Doc. No. 112, Exh. 4). After speaking with Judge
Musto, Defendant Davis contacted Defendant von Schmeling to inform her
that if the plaintiff did not make a full payment to the court within 30 days of the
order of November 24, 2009, a warrant would issue for his arrest. (Id.).
Defendant Davis also communicated Judge Musto’s understanding of the
order to Defendants Quinn and Duffy via email on December 8, 2009. (Id.,
Exh. 7).
On December 21, 2009, the plaintiff allegedly called Defendant Quinn
before mailing his child support payment to double-check the amount to be
paid and that Defendant Quinn allegedly instructed him to pay $533.00
because that is what Judge Musto had stated at the hearing. (Id., Doc. No. 38,
¶41). That same day, the plaintiff submitted his child support payment in the
amount of $533.00, $250.00 less than the actual court ordered amount. On
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December 28, 2009, Defendant Duffy Jr. prepared a bench warrant for the
plaintiff’s arrest because the child support payment was $250.00 short of the
required amount. (Doc. No. 112, Exh. 2). The bench warrant was stamped
“probation violation warrant” and indicates that it was issued because the
plaintiff “failed to appear, after notice, before the Court for a scheduled
conference and/or hearing.” Judge Clinton Smith signed the warrant that same
day. (Doc. No. 48, Exh. D). Based on the PACSES docket entry, there were
no hearings held between November 24 and December 28, 2009, however,
that system and Defendant Duffy, Jr. both note the warrant was actually issued
for non-payment of $250.00. (Doc. No. 112, Exh. 3, 10). The court order in
place at the time of the arrest required the plaintiff to pay $783.00 per month.
(Doc. No. 38, ¶30; Doc. No. 47, Exh. C).
On January 7, 2010, Defendants Biscotto, Austin, Para and Tigue, all
employees of the Luzerne County Domestic Relations Section, took the
plaintiff into custody. These Defendants did not present the plaintiff with a copy
of the warrant, but instructed him that he was being taken into custody
because he had failed to pay child support. (Id., Exh. 16). The plaintiff was
handcuffed and placed in the back of an unmarked car outside of a local
restaurant. While in custody, the plaintiff was afforded the opportunity to speak
briefly with his attorney and wife. The attorney spoke with Defendants Duffy,
Jr. and Davis who each relayed that the plaintiff had failed to pay the correct
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amount of support and that he had been arrested. The plaintiff asserted that
he had been told to pay $533.00, not $738.00 as the defendants claim.
During the plaintiff’s transportation to the courthouse, Defendant Tigue
allegedly asked the plaintiff “what did you do to piss your ex off so much?” The
Defendant then stated that he was referring to Defendant von Schmeling and
that she had been “hounding” the Domestic Relations Section to arrest him.
(Id.). Once at the courthouse, the plaintiff paid $250.00 at the Domestic
Relations Section and was released. He was not taken before a judge, nor
was he taken to jail. On January 8, 2010, the bench warrant was vacated.

II.

PROCEDURAL HISTORY
On January 5, 2012, the plaintiff filed his original complaint. (Doc. No.

1). Pursuant to this court’s order dated April 26, 2012, (Doc. No. 26), the
plaintiff filed an amended complaint on May 2, 2012. (Doc. No. 38). The
plaintiff’s amended complaint comprises nine counts. After a motion to dismiss
was ruled on by the court, only three claims remain against Defendant von
Schmeling: (1) malicious prosecution, (2) intentional infliction of emotional
distress, and (3) civil conspiracy. (Doc. No. 64). Defendant von Schmeling filed
the instant motion for summary judgement on June 17, 2013, (Doc. No. 98),
and the brief in support on July 2, 2013. (Doc. No. 102). Plaintiff filed his brief
in opposition on July 30, 2013. (Doc. No. 112).
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III.

STANDARD OF REVIEW
Summary judgment is appropriate if the “pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. ScheringPlough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine
if a reasonable jury could find for the non-moving party, and is material if it will
affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Casualty & Sur. Co. v.
Ericksen, 903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment
stage, “the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249 ; see also Marino v. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make
credibility determinations). Rather, the court must consider all evidence and
inferences drawn therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
To prevail on summary judgment, the moving party must affirmatively
identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party
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can discharge the burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial
burden, the non-moving party “must do more than simply show that there is
some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986)). However, if the non-moving party
“fails to make a showing sufficient to establish the existence of an element
essential to [the non-movant’s] case, and on which [the non-movant] will bear
the burden of proof at trial,” Rule 56 mandates the entry of summary judgment
because such a failure “necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485
F.3d 770, 777 (3d Cir. 2007).

IV.

DISCUSSION
As an initial note, the plaintiff points to many facts that are in dispute in

this case to indicate why summary judgment is not appropriate. However, this
court, in dealing with Defendant von Schmeling’s motion for summary
judgment, must determine whether the “nonmoving party has failed to make
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a sufficient showing on an essential element of the case with respect to which
he or she has the burden of proof.” Penny v. Borough of Wildwood Crest, 28
F.Appx. 137, 138 (3d Cir. 2002)(citing Celotex, 477 U.S. at 323). When the
nonmoving party fails to present proof concerning an essential element of a
claim, all other facts, even if disputed, become immaterial and irrelevant. Id.
A. Malicious Prosecution
“A cause of action for malicious prosecution has three elements. The
defendant must have instituted proceedings against the plaintiff 1) without
probable cause, 2) with malice, and 3) the proceedings must have been
terminated in favor of the plaintiff.” Kelley v. General Teamsters, Chauffeurs,
and Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988). A private citizen
can be liable for malicious prosecution, if she “procured the prosecution ... by
giving knowingly false information to a public official that leads to the initiation
of proceedings,” Pellegrino v. U.S. Transp. Sec. Admin., 855 F. Supp. 2d 343,
358 (E.D. Pa. 2012), or if her request, direction, or pressure “was the
determining factor in the official’s decision to commence the prosecution.”
Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 33 (Pa. Comm. Ct.
1998)(quoting Hess v. County of Lancaster, 514 A.2d 68, 683 (Pa. Comm. Ct.
1986))(emphasis added); see also Wiltz v. Middlesex County Office of
Prosecutor, 249 F. App'x 944, 950 (3d Cir. 2007)(evaluating malicious
prosecution claim against private defendants).
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Plaintiff argues, without citing a case to support his position, that
because the amount he owed on his child support payments is in dispute,
summary judgment should be precluded. (Doc. No. 112, p.21-23). The plaintiff
bears the burden of demonstrating there was a “lack of probable cause” for
initiating the prosecution. Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83,
86 (Pa. Super. Ct. 1995). If there is probable cause, then the motive of the
prosecuting agent, or any other individual involved, is immaterial. Corrigan v.
Central Tax Bureau of Pa., Inc., 828 A.2d 502, 505 (Pa. Comm. Ct. 2003).
When there are no material facts in dispute regarding the circumstances
leading to an arrest and prosecution, “the court must say, as a matter of law,
whether the facts proven show probable cause.” Randall v. Fenton Storage
Co., 177 A. 575, 577 (Pa. 1935). There is no dispute that the court order in
effect at the time of arrest required the plaintiff to pay $783.00, (Doc. No. 38,
¶30; Doc No. 47, Exh. C). The only issue is whether Judge Musto or
Defendant Quinn communicated a different amount to the plaintiff. As such,
these facts are “sufficient for an ordinary and prudent person to believe that”
the plaintiff violated the court order by paying $533.00, establishing probable
cause to initiate his prosecution for making a deficient payment. Id. “This is an
absolute defense to malicious prosecution.” Id. at 506 (citing Turano v. Hunt,
631 A.2d 822, 824 (Pa. Comm. Ct. 1993)). Probable cause acts as a total bar
to the claim and entitles Defendant von Schmeling to summary judgment.
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The plaintiff also fails to show how the prior proceedings terminated in
his favor. “One element that must be alleged and proved in a malicious
prosecution actions is the termination of the prior criminal proceeding in favor
of the accused.” Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002)(quoting
Heck v. Humphrey, 512 U.S. 477, 484 (1994))(applying Pennsylvania law).
Such termination can be shown by: (1) a discharge by a magistrate at a
preliminary hearing, (2) a grand jury’s refusal to indict, (3) the prosecutor’s
formal abandonment of the proceedings, (4) the quashing of an indictment or
information, (5) an acquittal, or (6) a final order in favor of the accused by a
trial or appellate court. Id.(citing RESTATEMENT (SECOND)

OF

TORTS §659

(1976)). The plaintiff admits the court order required him to pay $783.00, (Doc.
No. 38, ¶30), he payed $533.00 on December 21, 2009, (Doc. No. 112, Exh.
16), and he paid the $250.00 to be released from custody on January 7, 2010.
(Id.) The plaintiff does not point to any evidence to indicate that he was able
to successfully challenge the amount owed or point to any judicial proceedings
that terminated in his favor related to this prosecution. Therefore, he has failed
to present sufficient evidence on that element as well.
Lastly, the evidence, viewed in the light most favorable to the plaintiff, is
insufficient as a matter of Pennsylvania law to sustain a malicious prosecution
claim. What amount the plaintiff believed he had to pay is not relevant to this
evaluation. The question is whether Defendant von Schmeling, as a private
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party, provided knowingly false information to procure a prosecution or her
influence was the determining factor in the initiation of the prosecution.
Tomaskevitch, 717 A.2d at 33. The plaintiff does not point to any evidence
where Defendant von Schmeling knowingly provided false information to
procure the prosecution. (Doc. No. 112, p.21-23).
Therefore, this court’s determination of the issue depends whether her
communications with the Luzerne County defendants were the determining
factor in initiating the prosecution. In Tomaskevitch, the Commonwealth Court
of Pennsylvania held that uncorroborated hearsay testimony that the
defendant was “‘pushing’ for a prosecution of [the plaintiff]” was insufficient
evidence to survive a motion for summary judgment when an independent
actor made the decision to initiate the arrest and prosecution. 717 A.2d at 33
fn. 5. Here, the plaintiff does not contest that a warrant was issued for his
arrest, that the order of the court required him to pay $783.00, or that he only
paid $588.00. (Doc. No. 112, Exh. 15). What he does contest is whether the
court gave him permission to pay less than that amount. He further contends
that defendant Tigue informed the plaintiff he was being taken to jail because
“Ms. von Schmeling was present daily at the offices of the Domestic Relations
Section and was ‘hounding them to arrest [the plaintiff].’” (Doc. No. 112, Exh.
16). Lastly, he claims that Defendant Duffy, Jr. told him at the contempt
hearing on November 24, 2009, that if he did not pay the correct amount, he
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would be arrested. (Doc. No. 38, ¶37).
Based on the plaintiff’s own exhibits and pleadings, Defendant Duffy, Jr.
prepared the warrant and had it signed on December 28, 2009, after warning
the plaintiff he would do so. (Id., Doc. No. 112, Exh. 3). Aside from the
plaintiff’s affidavit, there is nothing in the record to indicate that Defendant von
Schmeling hounded or harassed any of the other Luzerne County defendants
for an arrest. The PACSES log indicates the call between Defendants Quinn,
Davis, and von Schmeling on December 4 and 7, 2009, focused on what the
court would do if the plaintiff did not pay, not what Ms. von Schmeling wanted
or desired. (Doc. No. 112, Exh. 4). The PACSES log further shows that on
December 4, 2009, Judge Musto had already determined that if the plaintiff did
not pay the additional $250.00 by December 24, 2009, “a warrant would be
issued for his arrest when the office reopens following the holidays.” (Id.). In
his complaint, the plaintiff alleges that Defendants Quinn, Duffy, Davis arrested
him because of the actions of his wife. Nothing attached to his brief in
opposition to this motion for summary judgment, save for Defendant Tigue’s
hearsay statement, supports that allegation. (Doc. No. 38, ¶101). Even
adopting defendant Tigue’s statement, defendant Duffy, Jr. initiated the
proceedings by placing a warrant into the system for the plaintiff’s arrest,
warning the plaintiff a month prior of the consequences of non-payment. (Doc.
No. 112, Exh. 3). There is nothing in this record to indicate he was influenced
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by defendant von Schmeling. Based on Tomaskevitch, the uncorroborated
hearsay statement is insufficient as a matter of law to demonstrate a material
issue of fact between the parties. See 717 A.2d at 33 fn. 5 (“[U]ncorroborated
hearsay testimony” that defendant “was ‘pushing’ for a prosecution” insufficient
to raise material issue of fact in claim for malicious prosecution). For the
foregoing reasons, Defendant von Schmeling is entitled to summary judgment
on the malicious prosecution claim.
B. Intentional Infliction of Emotional Distress
The Pennsylvania Supreme Court has not yet recognized the tort of
intentional infliction of emotional distress (“IIED”), but the Superior Court and
the Third Circuit have both predicted that the Supreme Court would adopt the
RESTATEMENT (SECOND) OF TORTS §46, which provides, “[o]ne who by extreme
and outrageous conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional distress.” Clark v.
Township of Falls, 890 F.2d 611, 622-23 (3d Cir. 1989) (citing Kazatsky v.
King David Mem’l Park, Inc., 515 Pa. 183 (1987)). Outrageous or extreme
conduct is behavior so outrageous or so extreme as to go “beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in
civilized society.” Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir.
1988); Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.Super. 2005) (internal citation
omitted). “Pennsylvania courts have found action for IIED to exist only in
13

limited circumstances, where the conduct is clearly outrageous.” Snyder v.
Speciality Glass Products, Inc., 658 A.2d 366, 375 (Pa. Super. Ct.
1995)(citations omitted).
The plaintiff argues, without citing a case in support of his argument, that
the evidence and inferences drawn therefrom, viewed in the light most
favorable to him, are sufficient to sustain a cause for IIED because of
Defendant von Schmeling’s influence over the Luzerne County defendants.
As previously stated, the plaintiff does not claim Defendant von
Schmeling made any false statements that led to his prosecution, only that her
“familiarity” with and “influence” over the Luzerne County defendants and other
individuals, including a sitting judge, led to his arrest. (Doc. No. 112, p. 24).
Even accepting the plaintiff’s contention that Defendant von Schmeling was
“hounding” the Luzerne County defendants to make an arrest, she is entitled
to summary judgment. The plaintiff’s brief and attached exhibits demonstrate
that Defendant von Schmeling was an active participant in a contentious child
support dispute. There is no evidence or allegation that she knowingly
disseminated false information that led to the plaintiff’s arrest and prosecution.
The plaintiff points to the “high level of contact” between the defendants as
evidence of this extreme conduct, however, these exchanges alone do not rise
to the requisite level of outrageous action required by Pennsylvania law. See
Mills, 589 F.Supp. 2d at 558 (police officer’s false statements and actions
14

soliciting sex from plaintiff that led to arrest and prosecution for prostitution
insufficient to sustain claim for IIED); Capresecco v. Jenkintown Borough, 261
F.Supp. 2d 319, 323 (E.D.Pa. 2003)(holding evidence that defendants actions,
including (1) conspiring to deprive seriously ill plaintiff of job and medical
benefits, (2) denying plaintiff’s opportunity for a hearing before termination,
and (3) continuously interfering with plaintiff’s access to benefits, were
insufficiently extreme or outrageous for the purposes of IIED).
Communicating with the court officials and employees involved in her
case and even “hounding” at least one court employee to arrest the plaintiff
because of an admitted violation of a court order fail to meet this high
standard. As a matter of law, Defendant von Schmeling is entitled to summary
judgment.
C. Civil Conspiracy
Finally, the plaintiff states that summary judgment is inappropriate for the
civil conspiracy claim because of the viability of the malicious prosecution and
IIED claims. The plaintiff does not address whether the claim can survive on
its own. Civil conspiracy requires the plaintiff to plead and prove an underlying
tort occurred, “because the cause of action is wholly subordinate to the
underlying tort’s existence.” Boyanowski v. Capital Area Intermediate Unit, 215
F.3d 396, 407 (3d Cir. 2000). “[A]bsent a civil cause of action for a particular
act, there can be no cause of action for civil conspiracy to commit that act.”
15

Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. Ct. 1987). As defendant
von Schmeling is entitled to summary judgment on the underlying tort claims
of malicious prosecution and IIED, the civil conspiracy claim cannot stand
alone. Defendant von Schmeling is entitled to summary judgment on that claim
as well.

V.

CONCLUSION
For the foregoing reasons, the defendant von Schmeling’s motion for

summary judgement is GRANTED. An appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: October 9, 2013
O:\Mannion\shared\MEMORANDA - DJ\2012 MEMORANDA\12-0020-03.wpd

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