Saranchuk et al v. Lello et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 30 MOTION for Summary Judgment filed by Josephine Hansen, Mark Kowalczyk, Bernard Zielinski, Dan Lello, Stanley Knick, Jr., Borough of Dupont, Sean Murray. Signed by Honorable Malachy E Mannion on 10/13/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN SARANCHUK, et al.,
Plaintiffs
v.
DAN LELLO, et al.,
Defendants

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CIVIL ACTION NO. 3:15-0893
(JUDGE MANNION)

MEMORANDUM
Pending before the court is the defendants’ motion for summary
judgment with respect to all of the plaintiffs’ claims against them. (Doc. 30).
Based on the court’s review of the motion and related materials, the
defendants’ motion will be GRANTED IN PART and DENIED IN PART.

I.

BACKGROUND
The following are the undisputed facts material to resolving the

defendants’ motion for summary judgment. 1 Named plaintiff John Saranchuk
began working for the Dupont Borough Police Department (“the Police
1

The relevant facts are taken from the pleadings, (Doc. 1; Doc. 14), the
defendants’ statement of material facts, (Doc. 32), the plaintiffs’ statement of
material facts, (Doc. 34), and both parties’ corresponding evidentiary exhibits.
Any facts that remain in dispute are noted as such.

Department”) in 2006. (Doc. 32; Doc. 34). When he was hired as a police
officer, Saranchuk worked on an hourly basis, and he did not initially sign any
contract dictating his work conditions or the number of hours he would be
assigned to work each week. (Doc. 32; Doc. 34). Saranchuk was eventually
promoted to the rank of sergeant and began working up to forty hours per
week, but he received no benefits and was still considered an hourly
employee of the Dupont Borough. (Doc. 32). In March 2011, Saranchuk was
named the Police Department’s “Officer in Charge,” which is the functional
equivalent of a Police Chief within the Dupont Borough. (Id.).
During Saranchuk’s term as Officer in Charge, a group of police officers
working at the Police Department was organized for the purpose of
strengthening their ability to bargain collectively with the Dupont Borough.
(Doc. 1; Doc. 14). This group was known as the Dupont Borough Police
Officers Association (“the Police Association”), and Saranchuk became the
group’s first leader. (Doc. 1; Doc. 14). Several other named plaintiffs, including
John Maciolek, Jason Kwiatkowski, and Charles Yarick, were also affiliated
with the Police Association. (Doc. 1). Acting through the Police Association,
Saranchuk filed for arbitration with the Dupont Borough and ultimately was

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able to extend and renew a prior collective bargaining agreement for a new
term, lasting from January 1, 2013 through December 31, 2016.2 (Doc. 1; Doc.
14). The Police Association’s protracted arbitration proceedings with the
Dupont Borough cost both parties a great deal of time and expense. (Doc. 1).
Following the Police Association’s formation, many of the factual
circumstances regarding its subsequent impacts on Dupont Borough
personnel are murky and disputed by the parties. What remains clear is that
bad blood and mistrust began to develop between members of the Police
Association and leadership figures at the Dupont Borough, including Mayor
Dan Lello and Dupont Borough Council Members Stanley Knick, Mark
Kowalczyk, Josephine Hansen, and Bernard Zielinski, all of whom are named
defendants in this action. (Doc. 1; Doc. 14; Doc. 32; Doc. 34).
On August 7, 2014, another named defendant, Sean Murray, was
appointed as the new Officer in Charge of the Police Department. (Doc. 32;
Doc. 34). All of the named defendants who are members of the Dupont
Borough Council (Knick, Kowalczyk, Hansen, and Zielinski) voted in favor of
Murray’s appointment as Officer in Charge. (Doc. 33-6). A Luzerne County
2

While the existence of this renewed collective bargaining agreement is
not in dispute, neither party has offered the agreement as part of the
evidentiary record, so its specific terms remain unknown.
-3-

Detective then contacted Saranchuk and told him to refrain from coming into
work until further notice. (Doc. 1; Doc. 14; Doc. 32, Exh. A). On that same
evening, the locks on Saranchuk’s office were changed, barring his access to
the premises. (Doc. 33-4). The following morning, a conversation transpired
between defendant Murray and plaintiff Kwiatkowski during which Murray
insinuated that Saranchuk was under investigation for misconduct during his
term as Officer in Charge. (Doc. 1; Doc. 32, Exh. E).
On September 5, 2014, Saranchuk appeared for a Loudermill
pre-termination hearing, but he was informed that the hearing would need to
be rescheduled for a future date and that the written accusations against him
would be provided at some future time. (Doc. 1; Doc. 14). Thereafter,
Saranchuk was officially terminated from his employment with the Police
Department, and he never again returned to work there. (Doc. 1; Doc. 14;
Doc. 32; Doc. 34). While the plaintiffs allege that Saranchuk was fired in
retaliation for engaging in protected union activities through the Police
Association, the defendants counter this assertion, arguing that Saranchuk
had in fact lost the confidence of the District Attorney and the Dupont Borough
leadership over the course of several incidents involving a lack of

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professionalism, frequent miscommunications, and poor police practices. 3
(Doc. 1; Doc. 32, Exh. B).
The other named plaintiffs affiliated with the Police Association were
also affected by this rapid personnel change within the Police Department.
Charles Yarick began working at the Police Department in 2007. (Doc. 32,
Exh. G; Doc. 34). Jason Kwiatkowski and John Maciolek joined in 2013. (Doc.
32, Exh. F; Doc. 34). All three plaintiffs, at least initially, worked there on an
hourly basis. 4 (Doc. 32, Exh. E). Beginning in September 2014, during the
aftermath of Saranchuk’s ouster and Murray’s appointment as Officer in
Charge, all three plaintiffs saw their work hours gradually reduced from the
Police Department’s work schedule. (Doc. 1; Doc. 14). At the same time, the
Dupont Borough began hiring new police officers to fill the resulting vacancies
in the work schedule. (Doc. 1; Doc. 14). These trends continued until the
plaintiffs either were left with a minimal number of work hours or were
effectively terminated from their employment at the Police Department. (Doc.
1; Doc. 32; Doc. 34). The defendants remained in contact with one another
3

The Dupont Borough’s exact motivations for removing Saranchuk from
the Police Department’s work schedule remain in dispute.
4
Since the collective bargaining agreement was not provided as part of
the evidentiary record, the court is unable to ascertain whether these plaintiffs’
status as hourly employees was ever altered due to such an agreement.
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throughout the time leading up to these events, just as local officials working
on behalf of the same municipality might be expected to do, but the extent of
each defendant’s knowledge of, or acquiescence to, this reduction in the
plaintiffs’ work hours remains in dispute. (Doc. 33; Doc. 34).
The plaintiffs, who are now former officers of the Police Department,
perceived these work reductions as arbitrary disciplinary actions without any
sound basis, but the defendants, who are current and former municipal
government officials within the Dupont Borough, claim that the work
reductions were in fact due to specified instances of misconduct from the
plaintiffs. (Doc. 1; Doc. 14). While the Dupont Borough leadership did receive
several citizen complaints from local residents about the plaintiffs’ handling of
police matters within the town, numerous factual disputes and unresolved
allegations remain regarding the factual accuracy of these complaints. 5
The plaintiffs further allege that they were threatened, harassed, and
defamed throughout the course of their dealings with the defendants. (Doc. 1;

5

The specific allegations of wrongdoing against the plaintiffs during their
time with the Police Department are immaterial to the resolution of the
defendants’ motion for summary judgment, so they are not discussed herein.
Factual disputes remain as to the precise reasons for the plaintiffs’ firing from
the Police Department and the extent to which Dupont Borough officials
facilitated these firings.
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Doc. 34). The defendants deny this, asserting that any purported hostile
interactions or harsh exchanges with the plaintiffs stemmed from genuine
concerns over their fitness as police officers. (Doc. 14; Doc. 32). The parties
dispute the specifics of these confrontations, including who they were directed
toward and what motivated them, but said incidents unquestionably escalated
tensions between the parties. (Doc. 1; Doc. 32; Doc. 33-11; Doc. 33-13).
On May 5, 2015, the plaintiffs filed the instant action, (Doc. 1), against
the abovementioned Dupont Borough officials, in both their individual and
official capacities, and against the Dupont Borough itself, bringing a broad
range of federal and state claims for relief: Count I for violations of the Due
Process Clause “under 42 U.S.C. §1983 and the Fifth, Sixth, and Fourteenth
Amendments;” Count II for “civil rights conspiracy to deprive the plaintiffs’
federally-protected rights under 42 U.S.C. §§1985-1986 and the Fifth, Sixth,
and Fourteenth Amendments;” Count III for “Equal Protection” Clause
violations under 42 U.S.C. §1983 and the Fourteenth Amendment; Count IV
for “Monell liability” under 42 U.S.C. §1983; Count V for “civil conspiracy;”
Count VI for “intentional infliction of emotional distress;” Count VII for breach
of the “implied covenants of good faith and fair dealing;” Counts VIII and IX for
“intentional interference with advantageous relations;” Count X for “abuse of
process;” Count XI for “defamation;” and Count XII for “loss of consortium.”
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On July 20, 2015, the defendants filed their answer, (Doc. 14), to the
alleged claims for relief. The parties then engaged in fact discovery, and on
February 13, 2017, the defendants moved for summary judgment on all
counts in the plaintiffs’ complaint and on the affirmative defense of qualified
immunity. (Doc. 30; Doc. 31). Thereafter, the plaintiffs filed their brief in
opposition to the defendants’ summary judgment motion. (Doc. 33). This
matter has been fully briefed and is now ripe for summary judgment.

II.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is
“genuine” if a reasonable jury could return a verdict for the non-moving party,
and it is “material” if proof of its existence or nonexistence would affect the
outcome of the trial under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-57 (1986); Gray v. York Newspapers, Inc., 957
F.2d 1070, 1078 (3d Cir. 1992). “[T]his standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
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requirement is that there be no genuine issue of material fact.” Anderson, 477
U.S. at 247-48.
To determine whether a genuine dispute of material fact exists, the court
should consider the “pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.” Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d
Cir. 1990). In doing so, the court must view all the evidence and any
inferences drawn therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007) (citing Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000)). However, the
court’s function at the summary judgment stage “is not . . . 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) (noting that the court
may neither weigh the evidence nor make credibility determinations).
Parties seeking to establish that a fact is or is not genuinely disputed
may not rely on unsubstantiated allegations; rather, they must support such
assertions by “citing to particular parts of materials in the record” to
demonstrate that the adverse party’s factual assertion either lacks support
from cited materials or is unsupported by admissible evidence. Fed. R. Civ. P.
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56(c)(1). See also Celotex Corp., 477 U.S. at 324 (requiring evidentiary
support for factual assertions made during summary judgment). A party’s
failure to properly support or contest an assertion of fact may result in that fact
being considered undisputed for purposes of the summary judgment motion,
although the court may also grant parties an opportunity to properly provide
support for an asserted fact. Fed. R. Civ. P. 56(e).
To prevail on a motion for summary judgment, the moving party must
affirmatively identify those portions of the record that demonstrate the
absence of a genuine dispute of material fact. Celotex Corp., 477 U.S. at 32324. The moving party can satisfy this 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 id. 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” to avoid summary judgment. 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)). Rather, the non-moving party must provide
“sufficient evidence” for a jury to return a verdict in its favor; “if the
[non-movant’s] evidence is merely colorable or not significantly probative,
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summary judgment should be granted.” Id. (quoting Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

III.

DISCUSSION
As a preliminary matter, several of the plaintiffs’ claims under Count I of

the complaint fail as a matter of law. Specifically, the complaint alleges
“violations of [the] plaintiffs’ substantive and procedural due process rights
under 42 U.S.C. §1983 and the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution.” (Doc. 1, at 30).
“To establish a claim under §1983, a plaintiff must allege (1) a
deprivation of a federally protected right, and (2) commission of the
deprivation by one acting under color of state law.” Lake v. Arnold, 112 F.3d
682, 689 (3d Cir. 1997). Notably, §1983 “is not itself a source of substantive
rights” but merely provides “a method for vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (citing Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)). The first step in any suit brought
under §1983 is to “isolate the precise” constitutional right allegedly infringed.
Id. at 394. “The validity of the claim must then be judged by reference to the

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specific constitutional standard which governs that right, rather than to some
generalized . . . standard.” Id.
The plaintiffs’ claims under the Fifth Amendment cannot be sustained as
applied to the facts at hand, as the Fifth Amendment restricts only the actions
of the federal government, not those of state or local government officials.
See, e.g., Nguyen v. U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir.
1983). The court will therefore grant summary judgment in favor of the
defendants as to the Fifth Amendment claims against them.
In a similar vein, the Sixth Amendment relates solely to the rights of
criminal defendants, but the plaintiffs’ claims here are civil in nature. See U.S.
CONST. amend. VI (“In all criminal prosecutions”). The court will therefore grant
summary judgment in favor of the defendants as to the Sixth Amendment
claims against them.
Additionally, while the plaintiffs do mention in passing that these facts
give rise to potential “First Amendment retaliation” implications, they do not
allege any First Amendment claims as official counts in the complaint. (Doc. 1,
at 28). The court will therefore refrain from undertaking a First Amendment
analysis herein. With respect to Count I of the complaint, this leaves for
consideration the plaintiffs’ §1983 claims for violations of the Due Process

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Clause of the Fourteenth Amendment. The court will now undertake an
analysis of the remaining counts in the complaint. (Doc. 1; Doc. 30; Doc. 31).
A. Procedural Due Process
A procedural due process analysis involves a two-step inquiry:
(1) whether the plaintiff was deprived of an interest that is encompassed by
the Fourteenth Amendment’s protection of “life, liberty, and property,” and
(2) whether the procedures given to the plaintiff comport with all constitutional
requirements such that they amounted to “due process of law.” Hill v. Borough
of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d
107, 116 (3d Cir. 2000)); Mariano v. Borough of Dickson City, 40 F.Supp.3d
411, 421 (M.D. Pa. 2014). To have a property interest in a job, “a person must
have more than a unilateral expectation of continued employment; rather, she
must have a legitimate entitlement to such continued employment.” Elmore v.
Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citing Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972)). Whether a legitimate entitlement, and therefore a
property interest, exists is a question of state law. See, e.g., Kelly v. Borough
of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997) (noting that “[s]tate law
creates the property rights protected by the Fourteenth Amendment”).

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The court must first determine whether the plaintiffs had a protected
property interest in their continued employment. The plaintiffs argue that their
property interest is derived from a collective bargaining agreement that was
renewed and extended for a new term by Saranchuk and the Police
Association. (Doc. 1; Doc. 33; Doc. 34). The defendants respond by arguing
that the plaintiffs were in fact hourly employees with no protected property
interest to speak of. (Doc. 31; Doc. 32). The Third Circuit has previously relied
on a Pennsylvania state statute in determining that members of a borough
“police force” generally do have a protected property interest in their
employment. See Dee v. Borough of Dunmore, 549 F.3d 225, 230-31 (3d Cir.
2008) (relying on 8 PA. CONS. STAT. §1190). The definitions section of this
same statute, however, specifically excludes “police serving . . . on an hourly
or daily basis” from the general definition of “police force.” 8 PA. CONS. STAT.
§1170. As a result, borough police officers who work on a full-time or salaried
basis have a protected property interest in their employment, while those
working on a part-time, hourly, or daily basis do not. See Mariano v. Borough
of Dickson City, 2014 WL 5795679, at *5 (M.D. Pa. Nov. 6, 2014); Stevens v.
Telford Borough, 2014 WL 4056952, at *2 (E.D. Pa. Aug. 14, 2014); Rosati v.
Borough of Hellertown, 1992 WL 396769, at *3 (E.D. Pa. Dec. 24, 1992).

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State statutory law, therefore, does not confer a property interest upon the
plaintiffs here.
The plaintiffs’ only other potential source of a protected property interest
would be the collective bargaining agreement that was supposedly extended
to cover the plaintiffs here. (Doc. 1; Doc. 14). Importantly, however, it is the
precise terms of a collective bargaining agreement that can confer a property
interest, not the agreement’s mere existence alone. See, e.g., Wilson v. MVM,
Inc., 475 F.3d 166, 177 (3d Cir. 2007) (citing Kelly, 107 F.3d at 1077). The
parties here do not dispute that some variety of collective bargaining
agreement exists. (Doc. 1; Doc. 14). Far less clear, however, are the precise
terms of said agreement. The defendants, who now move for summary
judgment on this issue, claim that “pursuant to Article 3 of the contract . . . the
police officers . . . are not guaranteed any specific number of days or hours of
work per week.” (Doc. 14, at 6). The plaintiffs, opposing summary judgment,
assert that “[t]hrough the past practice clause included in the collective
bargaining agreement . . . [the plaintiffs were] guaranteed to work at least 32
hours per week.” (Doc. 34, at 16). Rather than offering the agreement’s
substantive terms in their entirety as evidentiary support, both parties instead
rely on contradictory allegations regarding what the collective bargaining
agreement purports to do.
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At the summary judgment phase, if a factual issue arises that cannot be
resolved without a credibility determination, the court must credit the
non-moving party’s evidence over that presented by the moving party. See
Anderson, 477 U.S. at 255. This dispute of material fact about the collective
bargaining agreement’s precise contours and protections thus precludes
summary judgment on the plaintiffs’ procedural due process claims. The court
will therefore deny the defendants’ motion for summary judgment as to the
plaintiffs’ Fourteenth Amendment procedural due process claims against
them. Without any resolution at this phase on whether the plaintiffs possessed
a protected property interest, the court need not undertake an inquiry into the
adequacy of the procedures that were provided to the plaintiffs.
B. Substantive Due Process
The defendants next move for summary judgment as to the plaintiffs’
substantive due process claims. When a challenged action is “non-legislative”
in nature (such as an adverse employment decision), the substantive
component of the Due Process Clause can protect citizens against certain
government deprivations of fundamental constitutional rights if such
deprivations are “arbitrary, irrational, or tainted by improper motive” or if the
government’s conduct is so egregious that it “shocks the conscience.”
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Nicholas v. Pennsylvania State University, 227 F.3d 133, 139 (3d. Cir 2000)
(citing Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.
2000)). In contrast to a procedural due process challenge, the protection of a
given property interest under the substantive component of the Due Process
Clause is “not determined by reference to state law.” Id. at 140. Rather, the
threshold inquiry is whether the property interest being deprived is
“fundamental” under the Constitution. Id. (citing Independent Enters. Inc. v.
Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 n.12 (3d Cir. 1997)).
The Third Circuit has predominantly limited non-legislative substantive
due process review to cases involving real property ownership; it has been far
more reluctant to extend substantive due process protection to other property
interests. Id. at 141. In Nicholas, the Third Circuit held that a plaintiff’s tenured
public employment at a state-run university was not a fundamental property
interest entitled to substantive due process protection. Id. at 138. The plaintiffs
in the instant action have an even weaker claim to a fundamental property
interest, as their employment was neither tenured nor salaried. (Doc. 32, Exh.
E; Doc. 34). The plaintiffs therefore have no valid claim to protection under the
substantive component of the Fourteenth Amendment’s Due Process Clause.
Accordingly, the court will grant the defendants’ motion for summary judgment
as to the plaintiffs’ substantive due process claims against them.
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C. Conspiracy to Interfere with Civil Rights
The defendants next move for summary judgment as to the plaintiffs’
claims of conspiracy to interfere with civil rights under 42 U.S.C. §§1985-1986.
§1985(3) prohibits actions taken in concert by two or more persons “for the
purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and
immunities under the laws.” 42 U.S.C. §1985(3). To state a valid claim under
§1985(3), the plaintiffs must further demonstrate that the defendants
(1) committed “an act in furtherance of the conspiracy . . . whereby a person is
injured . . . or deprived of any right or privilege of [United States citizenship],”
(2) were “motivated by a discriminatory animus against an identifiable class,”
and (3) caused discrimination that is “invidious.” Farber v. City of Paterson,
440 F.3d 131, 134-35 (3d Cir. 2006) (citing United Bhd. of Carpenters &
Joiners v. Scott, 463 U.S. 825, 828-29 (1983)).
Here, the plaintiffs allege that they were conspired against due to their
labor union activities and their membership in a unionized group. (Doc. 1; Doc.
33; Doc. 34). The Third Circuit has held that discrimination against a class on
the basis of its political affiliation, such as membership in a labor union, is not
sufficiently “invidious” to state a valid claim under §1985(3). Farber, 440 F.3d
at 135 (holding that “unlike discrimination against a class on the basis of race,
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sex, or mental retardation, discrimination on the basis of political affiliation is
not, as a matter of law, discrimination so invidious such that §1985(3) would
apply”). In explaining the “invidious” requirement, the Third Circuit opined that
discrimination against groups based on “immutable” (unchangeable)
characteristics, such as race, gender, or mental illness, is inherently invidious
because such traits are “determined by the accident of birth,” while
discrimination based on “mutable” (changeable) characteristics, such as
opinion or conduct, is far less likely to qualify under §1985(3). Id. at 137. Since
the plaintiffs here share a group membership based solely on their political
affiliation, they do not comprise a cognizable class for purposes of §1985(3).
See Naviglia v. Borough of Springdale, 2016 WL 4366666, at *7 (W.D. Pa.
Aug. 16, 2016). The plaintiffs have thus failed to allege the invidiously
discriminatory animus required to sustain a claim under §1985(3).
A claim under 42 U.S.C. §1986 provides an additional safeguard for
those rights protected under §1985. To sustain such a claim, the plaintiff must
demonstrate that “(1) the defendant had actual knowledge of a §1985
conspiracy, (2) the defendant had the power to prevent or aid in preventing
the commission of a §1985 violation, (3) the defendant neglected or refused to
prevent a §1985 conspiracy, and (4) a wrongful act was committed.” Clark v.
Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994). Notably, “[b]ecause
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transgressions of §1986 by definition depend on a preexisting violation of
§1985, if the claimant does not set forth a cause of action under the latter, its
claim under the former necessarily must fail.” Rogin v. Bensalem Twp., 616
F.2d 680, 696 (3d Cir. 1980). See also Bernard v. E. Stroudsburg University,
2017 WL 3499788, at *4 (3d Cir. Aug. 16, 2017) (affirming the District Court’s
grant of summary judgment on a §1986 conspiracy claim due to the
inadequacy of the corresponding §1985 claim).
Since the plaintiffs here have not provided sufficient evidence for a jury
to return a verdict in their favor on their §1985 claim, their claim under §1986
necessarily fails as a matter of law. Accordingly, the court will grant the
defendants’ motion for summary judgment as to the plaintiffs’ claims for
conspiracy to interfere with civil rights.
D. Equal Protection
The defendants next move for summary judgment as to the plaintiffs’
claims under the Equal Protection Clause of the Fourteenth Amendment.
(Doc. 31). The plaintiffs’ brief in opposition to the defendants’ motion for
summary judgment, however, does not specifically object to or respond to the
defendants’ motion on this issue. (Doc. 33). This alone would be enough to

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grant the defendants’ unopposed motion. Nevertheless, a brief analysis of the
equal protection claim’s merits is undertaken herein.
The plaintiffs’ complaint appears to invoke the “class of one” theory of
equal protection relief under the Supreme Court’s framework articulated in
Village of Willowbrook v. Olech. 6 (Doc. 1, at 35). According to this theory, a
plaintiff may state a claim for a violation of the Equal Protection Clause when
the plaintiff “alleges that he has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Hill, 455 F.3d at 239 (citing Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000)).
While the plaintiffs here do allege intentional and discriminatory
treatment without a rational basis for doing so, the Supreme Court clearly held
in Engquist v. Oregon Department of Agriculture that “a class-of-one theory of
equal protection has no place in the public employment context.” Engquist v.
Oregon Dep’t of Agric., 553 U.S. 591, 594 (2008). In so holding, the Supreme
Court noted that there are certain instances, such as the public employment
context, where it is “par for the course” for government officials to treat
6

The court construes the plaintiffs’ complaint, (Doc. 1), as invoking the
“class of one” theory because it recites the words “class of one” but does not
point to any other specific legal authority to support its equal protection claims.
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“seemingly similarly situated individuals differently.” Id. at 593 (noting that it is
“not surprising” that the Supreme Court has never found the Equal Protection
Clause implicated in this arena, given “the at-will nature of government
employment”). If class-of-one claims were recognized in the employment
context, any personnel action in which a wronged employee could conjure up
a claim of differential treatment would “suddenly become the basis for a
federal constitutional claim.” Id. at 608.
The plaintiffs’ equal protection claims thus fail as a matter of law.
Accordingly, the court will grant the defendants’ unopposed motion for
summary judgment with respect to the plaintiffs’ §1983 claims under the Equal
Protection Clause.
E. Monell Liability
The plaintiffs also raise claims against the Borough of Dupont under the
framework articulated in Monell v. New York City Department of Social
Services. Municipalities, like individuals, can be found liable for §1983 claims.
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
However, a municipality may not be found liable under a theory of respondeat
superior solely because it employs a culpable defendant. Rather, the plaintiff
“must identify a policy or custom” leading to the alleged constitutional violation
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“and specify exactly what the policy or custom was.” McTernan v. City of York,
564 F.3d 636, 658 (3d Cir. 2009) (citing Phillips v. Cty. of Allegheny, 515 F.3d
224, 232 (3d Cir. 2008)). “Policy” is made when a “decisionmaker possess[ing]
final authority to establish a municipal policy with respect to the action” issues
an official proclamation or states an official policy position. Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986) (holding that municipal liability under
§1983 attaches where a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for
establishing final policy on the subject matter in question). On the other hand,
a course of conduct is considered a “custom” when, “[a]lthough not authorized
by written law, such practices of state officials [are] so permanent and well
settled” as to virtually constitute law. Monell, 436 U.S. at 690. Importantly,
however, a custom “may also be established by evidence of knowledge and
acquiescence.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)
(citing Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d Cir. 1989)).
This final potential avenue for sustaining a Monell claim against a
municipality, knowledge or acquiescence, strikes the most direct blow to the
defendants’ motion for summary judgment on this issue. Here, the defendants
have not provided sufficient evidence to establish conclusively that Dupont
Borough officials, including Mayor Lello and Council Members Knick,
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Kowalczyk, Hansen, and Zielinski, did not know about or acquiesce to an
unlawful custom or practice within the Police Department. The evidence of
record establishes that shortly after Saranchuk was fired and replaced by
Murray, other named plaintiffs saw their hours similarly reduced. (Doc. 1; Doc.
14). It also suggests that there was a great deal of bitterness and animosity
between the plaintiffs and the defendants following a protracted labor
arbitration dispute and numerous disagreements on how individual police
investigations should have been handled. (Doc. 1; Doc. 14; Doc. 32; Doc. 34).
The Dupont Borough officials appeared to understand what was transpiring
within the Police Department, even if they had not directly mandated it.
Genuine disputes of material fact thus remain regarding the extent to which
Dupont Borough officials were aware of and acquiesced to the actions taken
to fire the plaintiffs. (Doc. 33; Doc. 34).
Viewing these facts in the light most favorable to the non-moving party,
the defendants here have failed to affirmatively identify those portions of the
record demonstrating the absence of a genuine dispute of material
fact. Celotex Corp., 477 U.S. at 323-24. Since the defendants have not
satisfied their initial burden of proving that they are entitled to judgment as a
matter of law on this issue, the court will deny their motion for summary
judgment as to the plaintiffs’ claims for municipal liability under Monell.
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F. Official Capacity Claims
The plaintiffs’ complaint, (Doc. 1), brings causes of action against the
defendants in both their individual and official capacities. Suits against
government employees in their official capacities “generally represent another
way of pleading an action against an entity of which an officer is an
agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell,
436 U.S. at 690 n.55). Accordingly, “it is a well-established practice in the
Third Circuit to dismiss redundant §1983 claims asserted against public
officers in their official capacities where a claim has also been made against
the public entity that employs them.” M.S. ex rel. Hall v. Susquehanna Twp.
Sch. Dist., 43 F. Supp. 3d 412, 419 (M.D. Pa. 2014) (citing Jankowski v.
Lellock, 2013 WL 5945782, at *9 n.6 (W.D. Pa. Nov. 6, 2013)). This is
especially true where the complaint brings a large number of counts such that
retention of the redundant official capacity claims may confuse a jury and
unnecessarily clutter the docket. See Cuvo v. De Biasi, 169 F. App’x 688, 693
(3d Cir. 2006) (affirming dismissal “against the officers in their official
capacities because a lawsuit against public officers in their official capacities is
functionally a suit against the public entity that employs them”). See also id.
Courts within the Third Circuit routinely dismiss §1983 claims asserted
against individual defendants in their official capacity as being duplicative of a
- 25 -

claim against the municipality. Since the plaintiffs here have asserted both
claims against Dupont Borough employees in their official capacities and
claims against the Dupont Borough itself, the court will grant summary
judgment in favor of the defendants as to the plaintiffs’ claims against them in
their official capacities.
G. Qualified Immunity
The defendants next move for summary judgment on the issue of
qualified immunity. “Government officials performing discretionary functions
generally are shielded from liability for civil damages” if “their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). The question for analysis is “whether a reasonable public official
would know that his or her specific conduct violated clearly established rights.”
Grant v. City of Pittsburgh, 98 F.3d 116, 121 (3d Cir. 1996) (citing Anderson v.
Creighton, 483 U.S. 635, 636-37 (1987)). The qualified immunity defense thus
depends on the “objective reasonableness of [the government official’s]
conduct as measured by reference to clearly established law.” Davis v.
Scherer, 468 U.S. 183, 191 (1984). This “is to say that in light of preexisting
law, the unlawfulness must be apparent.” Anderson, 483 U.S. at 640.
- 26 -

While the issue of qualified immunity is essentially a question of law, it
necessarily entails a fact-intensive inquiry. See Brown v. Grabowski, 922 F.2d
1097, 1111 (3d Cir. 1990) (noting that “a court faced with . . . a claim of
qualified immunity [should] . . . engage in an analysis of the facts adduced
concerning the conduct of the official who claims immunity”). “Thus, crucial to
the resolution of any assertion of qualified immunity is a careful examination of
the record . . . to establish, for purposes of summary judgment, a detailed
factual description of the actions of each individual defendant (viewed in a
light most favorable to the plaintiff).” Grant, 98 F.3d at 122. The Third Circuit
has stated that the defendant bears the burden of proof on qualified immunity.
See Burns v. Pennsylvania Dep’t of Corrections, 642 F.3d 163, 176 (3d Cir.
2011); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004); Beers-Capitol v.
Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001).
The defendants here assert that they acted to reduce the plaintiffs’ work
hours due to “performance issues,” including poorly handled police matters
and unfavorable reports from the District Attorney; these assertions would
point toward a finding of objective reasonableness. (Doc. 31). The plaintiffs,
however, meet these assertions with testimony that the police matters in
question were indeed handled properly in light of the surrounding
circumstances, that the District Attorney’s scathing remarks were based on
- 27 -

misinformation and hearsay, and that the defendants’ actions to reduce the
plaintiffs’ work hours were in fact motivated by improper purposes. (Doc. 33).
The parties thus offer contradictory facts regarding the objective
reasonableness of the defendants’ actions, and this is precisely the factual
inquiry that is pertinent to resolving the qualified immunity issue. “Just as the
granting of summary judgment is inappropriate when a genuine issue exists
as to any material fact, a decision on qualified immunity will be premature
when there are unresolved disputes of historical fact relevant to the immunity
analysis.” Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002).
Moreover, factual disputes persist with respect to the plaintiffs’
procedural due process claim, and a clearer understanding of the factual basis
for this underlying substantive constitutional claim is vital to resolving the
qualified immunity determination. Without a well-defined picture of these facts,
it is impossible to determine whether any potential unlawfulness was
“apparent.” Anderson, 483 U.S. at 640. Viewing these facts in the light most
favorable to the non-moving party, genuine issues of material fact preclude
pretrial resolution of this affirmative defense. Accordingly, the court will deny
the defendants’ motion for summary judgment motion as to the issue of
qualified immunity.

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H. Intentional Infliction of Emotional Distress
The defendants next move for summary judgment as to the plaintiffs’
state law claims for intentional infliction of emotional distress (“IIED”). The
plaintiffs’ brief in opposition to the defendants’ motion for summary judgment,
however, does not specifically object to or respond to the defendants’ motion
on this issue. (Doc. 33). While this alone would be enough to grant the
defendants’ unopposed motion, the court will undertake a brief analysis of the
IIED claim’s underlying merits.
Pennsylvania state law recognizes a claim for IIED “[o]nly if conduct
which is extreme or clearly outrageous is established.” Hoy v. Angelone, 554
Pa. 134, 151 (1998). “The conduct must be so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious and utterly intolerable in a civilized society.” Id.
(citing Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 558
(1987)). Cases that have found a sufficient basis for IIED have presented only
the most egregious conduct. See, e.g., Papieves v. Lawrence, 437 Pa. 373,
376 (1970) (where the defendant, after striking and killing the plaintiff’s son
with an automobile and failing to notify the authorities or seek medical
assistance, buried the body in a field, where it was discovered two months
later); Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 126 (1981)
- 29 -

(where the defendants intentionally fabricated records to suggest that the
plaintiff had killed a third party, which led to the plaintiff being indicted for
homicide); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1268
(3d. Cir.1979) (where the defendant football player’s team physician released
information to the press, knowing such information was false, to suggest that
the plaintiff was suffering from a fatal disease).
On the other hand, “[c]ases regarding this tort in the employment context
have been few.” Hoy, 554 Pa. at 152 (1998). “[I]t is extremely rare to find
conduct in the employment context that will rise to the level of outrageousness
necessary to provide a basis for recovery for the tort of [IIED].” Cox v.
Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988). “[W]hile loss of
employment is unfortunate and unquestionably causes hardship, often severe,
it is a common event and cannot provide a basis for recovery for [IIED].” Id.
(quoting Brieck v. Harbison-Walker Refractories, 624 F.Supp. 363, 367 (W.D.
Pa. 1985)). “[C]ourts applying Pennsylvania law have failed to find conduct
outrageous where an employer deceived an employee into foregoing other
employment . . . or even where the employer engaged in a premeditated plan
to force an employee to resign by making employment conditions more
difficult.” Id. (citing Madreperla v. Williard Co., 606 F.Supp. 874, 880 (E.D.
Pa.1985)). The outcome of the plaintiffs’ present IIED claim, which also
- 30 -

originated in the employment context, is clear. The court will therefore grant
the defendants’ unopposed motion for summary judgment as to the plaintiffs’
claims for IIED.
I. Breach of Implied Covenants of Good Faith and Fair Dealing
The defendants next move for summary judgment as to the plaintiffs’
claims for breach of the implied covenants of good faith and fair dealing.
Pennsylvania courts generally construe actions for breach of the implied
covenants of good faith and fair dealing as breach of contract actions. “There
may be an express or implied covenant of good faith and fair dealing in any
contract between the parties, but if so, its breach is a breach of contract rather
than an independent breach of a duty of good faith and fair dealing.” Engstrom
v. John Nuveen & Co., Inc., 668 F.Supp 953, 958 (E.D. Pa. 1987). See
also Meyer v. Cuna Mut. Grp., 2007 WL 2907276, at *14 (W.D. Pa. Sept. 28,
2007) (stating that “[a] party is generally precluded from maintaining a claim
for the breach of the implied duty of good faith and fair dealing separate and
distinct from the underlying breach of contract claim”). The court will therefore
construe this count in the complaint as an action for breach of contract.
The plaintiffs further contend that the contract giving rise to this breach
is the collective bargaining agreement negotiated between the Police
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Association and the Dupont Borough. (Doc. 33, at 25). As previously noted,
while the parties do not dispute the existence of some agreement, neither
party has provided the agreement itself for closer examination by the court.
On this basis alone, the court could find that the plaintiffs have not met their
burden of producing sufficient evidence from which a reasonable jury could
find in their favor on this breach of contract claim.
The fact that the plaintiffs’ state law claim for breach of contract is
premised on the terms of a collective bargaining agreement, however, adds
even further barriers to this claim’s success. The Supreme Court has held that
when a state law contractual claim is predicated on a collective bargaining
agreement, the analysis shifts to account for the potentially preemptive effect
of federal labor law. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211
(1985). “[Q]uestions relating to . . . what legal consequences were intended to
flow from breaches of [a labor] agreement must be resolved by reference to
uniform federal law.” Id.
In Allis-Chalmers Corp. v. Lueck, the Supreme Court acknowledged that
it was not holding that “every state law suit asserting a right that relates in
some way to a provision in a collective bargaining agreement . . . necessarily
is preempted.” Id. at 220. However, it instructed that the preemptive scope of
federal labor law must be “fleshed out on a case-by-case basis,” holding that
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“when resolution of a state law claim is substantially dependent upon analysis
of the terms of an agreement made between the parties in a labor contract,
that claim must either be treated as a claim [under §301 of the Labor
Management Relations Act] or dismissed as preempted by federal labor
contract law.” Id. The Supreme Court reiterated this standard in Caterpillar Inc.
v. Williams, declaring that “[§]301 governs claims founded directly on rights
created by collective bargaining agreements, and also claims substantially
dependent on analysis of a collective bargaining agreement.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 394 (1987). “When a plaintiff invokes a right created
by a collective bargaining agreement, the plaintiff has chosen to plead what
we have held must be regarded as a federal claim.” Id. at 399. The relevant
inquiry, therefore, focuses on whether the state law claim “can be resolved
without interpreting the agreement itself.” Lingle v. Norge Div. of Magic Chef,
Inc., 486 U.S. 399, 410 (1988). If it cannot, the state law claim is necessarily
preempted by federal law. See id.
Even if the court were to forgive the glaring pleading deficiencies
associated with this count of the plaintiffs’ complaint, the claim still could not
be resolved without some reference to the agreement itself. See Guerrero v.
Hovensa LLC, 259 F. App’x 453, 458 (3d Cir. 2007) (holding that the plaintiff’s
claim for violation of the implied duty of good faith and fair dealing was
- 33 -

preempted as requiring an analysis of the terms of the collective bargaining
agreement on which the claim was premised). The plaintiffs have put forward
specific evidence of neither the terms of the allegedly breached collective
bargaining agreement nor the defendants’ actions that could have amounted
to a breach. To the contrary, this claim is based on speculation alone and
remains unsupported by material facts. For these reasons, the court will grant
the defendants’ motion for summary judgment as to the plaintiffs’ claims for
breach of the implied covenants of good faith and fair dealing.
J. Intentional Interference with Advantageous Relations
The defendant next moves for summary judgment as to the plaintiffs’
state law claims for “intentional interference with advantageous relations.”
(Doc. 1). The plaintiffs’ brief in opposition to the defendants’ motion for
summary judgment, however, does not specifically object to or respond to the
defendants’ motion on this issue. (Doc. 33). Further, Pennsylvania state law
does not specifically recognize a cause of action for intentional interference
with advantageous relations. The closest equivalent would be a cause of
action for tortious interference with a contract, which is comprised of the
following elements: “(1) the existence of a contractual or prospective
contractual relation between the complainant and a third party; (2) purposeful
- 34 -

action on the part of the defendant, specifically intended to harm the existing
relation or to prevent a prospective relation from occurring; (3) the absence of
privilege or justification on the part of the defendant; and (4) the occasioning
of actual legal damage as a result of the defendant’s conduct.” Crivelli v. Gen.
Motors Corp., 215 F.3d 386, 394 (3d Cir. 2000) (citing Strickland v. Univ. of
Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997)).
As the defendants convincingly argue, the plaintiffs have not cited to any
materials in the evidentiary record to support their allegations of tortious
interference. (Doc. 31). Even setting aside the obvious pleading deficiencies
on this count of the complaint, the plaintiffs do not identify any specific
evidence to establish purposeful actions by the defendants that were
specifically intended to damage or prevent contractual relations. (Doc. 1). The
plaintiffs instead rely on the bare conclusory allegations that defendant Murray
“impact[ed], negatively and substantially, their relationship . . . with the
[Dupont] Borough.” (Id. at 41-42). Without more, the plaintiffs have not
satisfied their burden of producing sufficient evidence on an essential element
of their claim from which a reasonable jury could rule in their favor. See,
e.g., Boyle, 139 F.3d at 393. In fact, the plaintiffs never even contest these
factual shortcomings by offering a responsive argument in their opposition to
the defendants’ summary judgment motion. (Doc. 33). For these reasons, the
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court will grant the defendants’ motion for summary judgment as to the
plaintiffs’ claims for tortious interference with contractual relations.
K. Abuse of Process
The defendant next moves for summary judgment as to the plaintiffs’
state law claims for abuse of process. The plaintiffs’ brief in opposition to the
defendants’ motion for summary judgment does not specifically object to or
respond to the defendants’ motion on this issue. (Doc. 33). This mere fact
would be sufficient to grant the defendants’ unopposed motion, but the court
will nonetheless undertake a brief analysis of the abuse of process claim.
To establish a claim for the “abuse of process” tort, it must be shown
that the defendant “(1) used a legal process against the plaintiff, (2) primarily
to accomplish a purpose for which the process was not designed” and that
(3) “harm has been caused to the plaintiff.” Lerner v. Lerner, 954 A.2d 1229,
1238 (Pa. Super. Ct. 2008) (quoting Shiner v. Moriarty, 706 A.2d 1228, 1236
(Pa. Super. Ct. 1998)). “The word process,” as it is used in the abuse of
process tort, “encompasses the entire range of procedures incident to the
litigation process.” Shiner, 706 A.2d at 1237. Abuse of process claims “rely for
their impetus upon the filing of a docketed action, petition, or other legal
modality.” Cruz v. Princeton Ins. Co., 972 A.2d 14, 19 (Pa. Super. Ct. 2009).
- 36 -

The defendants in the instant action never initiated any manner of legal
proceedings against the plaintiffs, and the plaintiffs never even alleged as
much. For an abuse of process claim to move forward, there must have been
some “process” of which to speak. See id. Here, there is none. On this basis,
the court will grant the defendants’ unopposed motion for summary judgment
as to the plaintiffs’ abuse of process claims.
L. Defamation
The defendants next move for summary judgment as to the plaintiffs’
defamation claims against them. An action for defamation under Pennsylvania
law requires the plaintiff to prove: (1) a defamatory communication, (2) its
publication by the defendant, (3) its application to the plaintiff, (4) an
understanding by the recipient of its defamatory meaning, (5) an
understanding by the recipient that it was intended to be applied to the
plaintiff, (6) special harm to the plaintiff resulting from its publication, and
(7) the abuse of a conditionally privileged occasion. 42 PA. CONS. STAT. §8343.
A statement is defamatory if it “tends . . . to harm the reputation of another as
to lower him or her in the estimation of the community or to deter third persons
from associating or dealing with him or her.” U.S. Healthcare v. Blue Cross of
Greater Philadelphia, 898 F.2d 914, 923 (3d Cir. 1990). Furthermore, the
- 37 -

statement must do more than merely annoy or embarrass the purported
victim; “he must have suffered the kind of harm which has grievously fractured
his standing in the community of respectable society.” Tucker v. Phila. Daily
News, 577 Pa. 598, 615 (2004).
To sustain a defamation claim, the plaintiff must point to specific
defamatory communications and “identify specifically . . . to whom they were
made.” Moses v. McWilliams, 379 Pa. Super. 150, 170 (1988). The plaintiff
bears the burden of showing whether a communication is capable of
defamatory meaning, and “if the court determines that the challenged
publication is not capable of defamatory meaning, there is no basis for the
matter to proceed to trial.” Burton v. Teleflex Inc., 707 F.3d 417, 434 (3d Cir.
2013) (quoting Kurowski v. Burroughs, 994 A.2d 611, 617 (Pa. Super. Ct.
2010)). The “publication” element requires only that the defamatory statement
be communicated to one person other than the defamed party. Agriss v.
Roadway Exp. Inc., 334 Pa. Super. 295, 309 (1984). As for the “special harm”
requirement, a plaintiff must plead “a specific monetary or out-of-pocket loss
as a result of the defamation.” Cornell Companies, Inc. v. Borough of New
Morgan, 512 F. Supp. 2d 238, 271 (E.D. Pa. 2007).
In addition, the Supreme Court in New York Times Co. v. Sullivan
prescribed an additional element that plaintiffs alleging defamation must prove
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when those plaintiffs are either public officials or public figures. Specifically,
the “actual malice” standard requires that the defendant, in publishing the
offending statement, acted “with knowledge that [the statement] was false or
with reckless disregard of whether it was false or not.” New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964).
The defendants’ argument for summary judgment on the plaintiffs’
defamation claims is twofold. First, the defendants assert that the plaintiffs
have brought forth no evidence of defamatory statements by the defendants,
and second, they argue that even if the defendants had made defamatory
statements, those statements are absolutely privileged due to the defendants’
status as “high public officials.” (Doc. 31). The plaintiffs never directly respond
to this latter argument.7 Under Pennsylvania state law, “[a]bsolute privilege
exempts a high public official from all civil suits for damages arising out of
false or defamatory statements and even from statements or actions
motivated by malice, provided the statements are made or the actions are

7

Rather than meeting the defendants’ argument that any allegedly
defamatory statements were in fact protected by an absolute privilege, the
plaintiffs, in their opposition to the instant summary judgment motion, instead
raise non-responsive arguments based on “false light invasion of privacy,” a
tort that is similar to but wholly distinct from defamation. (Doc. 33, at 26).

- 39 -

taken in the course of the official’s duties or powers and within the scope of
his authority.” Jonnet v. Bodick, 431 Pa. 59, 62 (1968) (quoting Matson v.
Margiotti, 371 Pa. 188, 190 (1952)). The question of whether a given public
officer is protected as a “high public official” depends on “the nature of his
duties, the importance of his office, and particularly whether he has policymaking functions.” Id.
The Pennsylvania Supreme Court has held that borough mayors qualify
as high public officials for immunity purposes. See Lindner v. Mollan, 544 Pa.
487, 496 (1996) (“[t]here is no more important local public official than a
mayor”). Similarly, the Third Circuit has held that borough council members
are high public officials. See Smith v. Borough of Dunmore, 633 F.3d 176, 182
(3d Cir. 2011) (affirming the District Court’s grant of summary judgment to
borough council members on the basis of high public official immunity). Here,
undisputed witness testimony indicates that the Dupont Borough Mayor has
direct supervisory authority over the Police Department and that the Dupont
Borough council members consistently vote on personnel matters concerning
the Police Department, including whether to hire or fire new officers. (Doc. 3310; Doc. 33-11; Doc. 33-13). Therefore, there is no question that any
potentially defamatory statements about the plaintiffs from Dupont Mayor Lello
or from Dupont Borough Council Members Knick, Kowalczyk, Hansen, and
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Zielinski would have been made within the scope of their official duties.
Accordingly, the court will grant the defendants’ motion for summary judgment
as to the defamation claims against named defendants Lello, Knick,
Kowalczyk, Hansen, and Zielinski.
However, “[t]he status of a police chief for high public official immunity
purposes is less clear.” Mariano, 2013 WL 6234622, at *8. Courts are split on
this question. Compare Mariano, 40 F. Supp. 3d at 420 (finding that a police
chief was not entitled to high public official immunity), with Cotner v.
Yoxheimer, 2008 WL 2680872, at *14 (M.D. Pa. July 2, 2001) (finding that a
police chief was entitled to high public official immunity), and Webb v. Bristol
Borough, 2012 WL 3024761, at *3 (E.D. Pa. July 24, 2012) (finding that
whether a police chief is entitled to high public official immunity depends on
whether the position entails policy-making, a determination that the judiciary
should make on a case-by-case basis). Here, the evidence of record indicates
that Officer in Charge Sean Murray had little discretion to make Dupont
Borough policy. To the contrary, Murray was primarily in charge of overseeing
the execution and implementation of policies that were originally crafted and
handed down by the mayor and council members. (Doc. 33-12). In light of this,
court finds that Murray does not qualify as a high public official for immunity

- 41 -

purposes, so this particular defendant may still be prone to liability for
defamation.
Murray’s only statement in the record that could potentially rise to the
level of defamation is alleged in the plaintiffs’ complaint as a tense exchange
with plaintiff Kwiatkowski. (Doc. 1, at 12). There, the plaintiffs contend that
Murray pulled Kwiatkowski aside and stated, “John [Saranchuk] is in a lot of
trouble for tampering with evidence . . . and a ton of other things . . . bags of
drugs in the evidence closet that were torn open . . . look tampered with . . . I
can promise you that really bad things are coming for . . . Saranchuk.” (Id. at
12-13). During fact discovery, Kwiatkowski testified further in a sworn
deposition that Murray had indeed pulled him aside and stated that
“Saranchuk . . . [is] going to jail . . . he is a criminal . . . [for] drugs being
tampered with in the evidence locker.” (Doc. 32, Exh. E).
Since Murray’s accusations were made in reference to a former Officer
in Charge of the Police Department, the allegedly defamed party would qualify
as a “public official,” which triggers the Supreme Court’s “actual malice”
standard. See New York Times Co., 376 U.S. at 279-80. See also Bartlett v.
Bradford Publishing, Inc., 885 A.2d 562, 564 (Pa. Super. Ct. 2005) (finding
police officers to be public officials who must prove actual malice to prevail on
defamation claims). The actual malice standard is a constitutional safeguard
- 42 -

designed to protect the First Amendment interests that are inherently
intertwined with actions for defamation. As such, allegations of actual malice
must be supported “by clear and convincing evidence,” which is “the highest
standard of proof for civil claims.” Lewis v. Philadelphia Newspapers, Inc., 833
A.2d 185, 192 (Pa. Super. Ct. Sept. 18, 2003) (citing Sprague v. Walter, 656
A.2d 890, 904 (Pa. Super. Ct. Feb. 1, 1995)). Moreover, evidence of actual
malice “is not adjudged by an objective standard.” Id. Rather, the court uses a
subjective standard, requiring evidence “that the defendant in fact entertained
serious doubts as to the truth of his publication.” Id. (quoting Curran v.
Philadelphia Newspapers, Inc., 546 A.2d 639, 642 (Pa. Super. Ct 1988)).
This heightened constitutional standard strikes a severe blow to the
instant defamation claim against Murray. At first glance, Murray’s statements
about Saranchuk appear sufficiently defamatory in nature, as they would both
tend to harm Saranchuk’s standing within respectable society and deter third
persons from dealing with him. See U.S. Healthcare, 898 F.2d at 923;
Tucker, 577 Pa. at 615. The plaintiffs’ assertions, however, are devoid of any
evidence that Murray’s statements were motivated by actual malice. In fact, as
the new Officer in Charge of the Police Department, many conceivable
justifications existed for Murray’s statements to Kwiatkowski. (Doc. 32, Exh. E;
Doc. 33). For instance, the record suggests that several officers within the
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Police Department were questioning where Saranchuk had gone and what
had prompted his replacement. (Doc. 1; Doc. 32; Doc. 34). Murray, as the new
Officer in Charge, would have needed to respond to these questions from his
inferior officers in some way. It is largely inconceivable that Murray would
have refrained entirely from commenting on why such rapid personnel
changes were coming to the Police Department.
This is not to suggest that Murray’s statements were entirely proper or
prudent; they were not. However, under circumstances where the subject of
the allegedly defamatory statements is a public official, the state law tort
remedy often must yield to overriding free speech concerns. The plaintiffs
here have not detailed sufficient evidence to establish that Murray uttered his
statements with malice. Accordingly, the court will grant the defendants’
motion for summary judgment as to the plaintiffs’ defamation claim against
named defendant Murray.
M. Civil Conspiracy
The defendants next move for summary judgment as to the plaintiffs’
claims for civil conspiracy. However, the plaintiffs’ brief in opposition to the
defendants’ motion for summary judgment never specifically objects to or
responds to the defendants’ motion on this issue. (Doc. 33). To survive
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summary judgment, a plaintiff bringing a civil conspiracy claim must produce
sufficient evidence to establish that the defendants (1) acted in concert and
(2) with malice (3) to commit an unlawful act or to do a lawful act by unlawful
means and (4) accomplished some overt act in furtherance of the conspiracy.
See Skipworth by Williams v. Lead Indus. Ass’n, 547 Pa. 224, 235-36 (1997).
Proof of “malice,” meaning an “intent to injure, is essential in pro[ving] a
conspiracy.” Commerce Bank/Pennsylvania v. First Union Nat. Bank, 911
A.2d 133, 143 (Pa. Super. Ct. 2006). “Malice” requires that “the sole purpose
of the conspiracy was to injure the plaintiff and that this intent was without
justification.” Festa, 803 F. Supp. 2d at 327 (granting summary judgment in
favor of the defendants due to an inadequate showing of malice). Since malice
“can only be found when the sole purpose of the conspiracy is to injure the
plaintiff, a showing that a person acted for professional reasons, and not
solely to injure the plaintiff, negates a finding of malice.” Id. (citing Bro-Tech
Corp. v. Thermax, Inc., 651 F. Supp. 2d 378, 419 (E.D. Pa. 2009). Importantly,
the success of a claim for civil conspiracy hinges on the success of an
underlying tort claim. “Since liability for civil conspiracy depends on
performance of some underlying tortious act, the conspiracy is not
independently actionable; rather, it is a means for establishing vicarious

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liability for the underlying tort.” Boyanowski v. Capital Area Intermediate Unit,
215 F.3d 396, 407 (3d Cir. 2000).
The plaintiffs here have failed to allege their claim for civil conspiracy
with reference to any underlying tort. (Doc. 1, at 37). Instead, they vaguely
and generally assert that the defendants had an “agreement” that was
“entered into and carried out by the various [d]efendants . . . to cause harm
and damage to the [p]laintiffs” and that “[t]hrough their various roles,
decisions, and conduct . . . the [d]efendants carried out acts in furtherance of
that agreement.” (Id.). The plaintiffs offer nothing further to substantiate these
allegations. The court has heretofore granted summary judgment in favor of
the defendants on all of the plaintiffs’ underlying state law tort claims. As such,
the plaintiffs’ claims for civil conspiracy cannot proceed forward. The court will
therefore grant the defendants’ unopposed motion for summary judgment as
to the plaintiffs’ claims for civil conspiracy.
N. Loss of Consortium
Finally, the defendants move for summary judgment as to the plaintiffs’
claims for loss of consortium. The plaintiffs’ brief in opposition to the
defendants’ motion for summary judgment never specifically objects to or
responds to the defendants’ motion on this issue. (Doc. 33). A claim for loss of
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consortium is intended to compensate an aggrieved spouse for the damaged
marital expectations that result from injuries to his or her marital partner. See,
e.g., Hopkins v. Blanco, 457 Pa. 90, 93 (1974). The injury suffered by the
claimant’s spouse must be more than a pecuniary one; physical or emotional
injuries must be established as well. Browne v. Maxfield, 663 F.Supp. 1193,
1207 (E.D. Pa. 1987).
While the losses alleged in a loss of consortium claim are personal to
the uninjured spouse and arise from the deprivation of the injured spouse’s
society and services, it is well-settled that “the claim is derivative.” Darr Const.
Co. v. W.C.A.B., 552 Pa. 400, 408 (1998). Even though a loss of consortium
claim “remains a separate and distinct cause of action,” a plaintiff still cannot
recover for loss of consortium in the absence of the defendant’s liability to his
or her spouse. See Little v. Jarvis, 280 A.2d 617, 620 (Pa. Super. Ct. 1971).
See also id.
The court has granted summary judgment in favor of the defendants on
all of the plaintiffs’ underlying state law tort claims thus far. As such, there are
no remaining claims for physical or emotional injury onto which the derivative
claims for loss of consortium may properly attach. See Rost v. National R.R.
Passenger Corp., 1989 WL 104809, at *7 (E.D. Pa. 1989) (where the
husbands’ tort claims were dismissed, leaving pending only breach of
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contract, fraud, promissory estoppel, and public policy claims, “there
remain no physical and emotional injury claims from which the wives can
derive their loss of consortium injury”). Therefore, the plaintiffs’ claims for loss
of consortium cannot proceed forward. As a result, the court will grant the
defendants’ unopposed motion for summary judgment as to the plaintiffs’
claims for loss of consortium.

IV.

CONCLUSION
For the foregoing reasons, the defendants’ motion for summary

judgment will be GRANTED IN PART and DENIED IN PART. Specifically, the
motion will be granted with respect to the plaintiffs’ Fifth Amendment claims,
Sixth Amendment claims, substantive due process claims, civil rights
conspiracy claims, equal protection claims, official capacity claims, intentional
infliction of emotional distress claims, claims for breach of the implied
covenant of good faith and fair dealing, claims for intentional interference with
advantageous relations, abuse of process claims, defamation claims, civil
conspiracy claims, and loss of consortium claims.
The defendants’ motion for summary judgment will be denied with
respect to the plaintiffs’ procedural due process claims, the plaintiffs’ claims

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for municipal liability under Monell, and the affirmative defense of qualified
immunity. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Date: October 13, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-0893-01.docx

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