Dempsey et al v. Bucknell University et al
Filing
170
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 1/5/15. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
REED C. DEMPSEY and
SHELLEY DEMPSEY,
:
:
:
Plaintiffs,
:
:
v.
:
:
BUCKNELL UNIVERSITY,
:
JOHN C. BRAVMAN,
:
LEWIS A. MARARRA,
:
AMY A. BADAL,
:
LINDA LOCHER,
:
KARI M. CONRAD,
:
CHIEF JASON FRIEDBURG,
:
OFFICER JULIE HOLTZAPPLE,
:
OFFICER DARRELL FISHER,
:
OFFICER ROBERT ULMER,
:
OFFICER JAMES MIDDLETON, :
DETECTIVE JEFFREY ETTINGER,:
CAPTAIN DOUGLAS LAUVER,
:
and ANTHONY J. VOCI, JR.
:
:
Defendants.
:
Case No. 4:11-cv-1679
(Judge Brann)
MEMORANDUM
January 5, 2015
Pending before this Court are two Motions for Summary Judgment (ECF
Nos. 123 and 125), one filed by Defendant Anthony Voci and one filed by the
remaining Defendants.1 Both motions seek to dismiss all claims remaining against
1
Defendant Voci has also filed a Motion for Joinder (ECF No. 130) in which he requests to join the Bucknell
Defendants’ Motion for Summary Judgment. The Court interprets this motion to request that all arguments asserted
by the Bucknell Defendants be applied to his own pending Motion for Summary Judgment. The Court makes its
own determination of the issues presented based on thorough research of the state of the law, including but not
limited to the research submitted by the parties. The Court has considered all possible arguments in its
1
them, of which there are a total of nine. The matter has been fully briefed and is
now ripe for disposition.
In accordance with the following reasoning, Defendants’ Motions for
Summary Judgment are granted in part and denied in part. Counts I, II, III, IV,
VIII, X, XIV and XVI are dismissed in their entirety. Summary judgment is
denied with respect to Count VII for defamation as asserted against Defendant
Voci.
I. BACKGROUND
This case arises out of a sexual assault allegation by Ms. Kelly Stefanowicz
against Plaintiff Reed C. Dempsey, and Bucknell University’s response to that
allegation, including the conduct of Bucknell University Public Safety officers and
University officials. Moreover, several claims relate to the conduct of Ms.
Stefanowicz’s attorney, Defendant Anthony Voci, Esq., in the course of his legal
representation, including the statements he made both to University officials and to
a local journalist. Most of the facts underlying the following claims are
undisputed; where the facts are disputed, the Court will acknowledge those
discrepancies and will give credence to the evidence favoring the Plaintiff, as the
nonmovant, as long as that evidence is properly supported. See infra, section II.
determination of Defendant Voci’s Motion for Summary Judgment. As such, Defendant Voci’s Motion for Joinder
is denied as moot.
2
1. Facts Pertaining to Bucknell Defendants
On the evening of Sunday, September 5, 2010, Bucknell University Public
Safety officer (hereinafter, “BUPS”) and defendant Julie Holtzapple received a call
from Brian Stefanowicz, father of Kelly Stefanowicz, who reported that his
daughter had been assaulted earlier that morning. Defs.’ Statement of Facts ¶ 1-2,
May 29, 2014, ECF No. 127 (hereinafter “Defs.’ SOF”). He had noticed extensive
bruising on his daughter when he saw her play in a collegiate field hockey game
earlier that day, and he took photographs of her injuries after the game. Pl.’s
Statement of Facts ¶ 30-31, June 26, 2014, ECF No. 138 (hereinafter “Pl.’s SOF”).
When Ms. Stefanowicz was interviewed by BUPS officers, she reported that
Mr. Dempsey was her assailant and that he “pinched” and “punched” her in
inappropriate places while the two were alone together in his room2; moreover, she
alleged that Mr. Dempsey was “hard” and “getting off to it”.3 Defs.’ SOF ¶ 5-9;
Pl.’s SOF ¶ 34. She further reported that the altercation continued even after she
was able to leave Mr. Dempsey’s room; in the hallway she slapped Mr. Dempsey
and he subsequently tackled her to the ground, causing some of her more
substantial injuries. Defs.’ SOF ¶ 11-13. She then showed the Defendant officers
2
There is a dispute of fact regarding how long the two were alone in Mr. Dempsey’s room while the “assault” was
occurring, but the Court gathers that it was sometime between one and ten minutes. Pl.’s SOF ¶ 5 n.1.
3
The facts as stated in this paragraph describe only what Ms. Stefanowicz reported to Defendant Holtzapple when
she was interviewed on the night of September 5, 2010. The Court recognizes that Mr. Dempsey disputes the
accuracy of Ms. Stefanowicz recitation; however, it is undisputed what was said at the interview, regardless of
ultimate truth.
3
some of the text messages that Mr. Dempsey had sent to her after the “assault”
which stated, “Sorry. . .I’m bleeding in several places and bruises all over. . .but
that was unnecessary on my part”; “I honestly feel horrible. . .I’m so sorry”; and
“Are you alright?” Id. at ¶ 16; Pl.’s SOF ¶ 26.
Later that night, BUPS officer and Defendant Robert Ulmer contacted Mr.
Dempsey and asked him for an interview regarding the incident with Ms.
Stefanowicz, and Mr. Dempsey agreed to the interview. Defs.’ SOF ¶ 18-19; Pl.’s
SOF ¶ 45. Mr. Dempsey further provided BUPS officers with a written statement
and the name of witnesses to the “assault.” Pl.’s SOF ¶ 47-48. BUPS officers did
in fact request and receive statements from numerous witnesses recommended by
Mr. Dempsey between September 5, 2010 and September 6, 2010, including Wade
Payson-Denney, Gregory Fast, Andrew Watts, Kristen Brundage, Morgan Slade,
Demitri Carahalios, Gabriela Ors, and Michael Sena. Pl.’s SOF ¶ 49. BUPS
officers also had in their possession the statement of Ms. Stefanowicz’s roommate,
Raina Masand, which seemingly corroborated Ms. Stefanowicz’s version of the
events by detailing Ms. Stefanowicz’s present-sense impression of what had
occurred between her and Mr. Dempsey immediately afterwards. Defs.’ SOF ¶ 2332.
Ms. Stefanowicz also subsequently provided a written statement to BUPS
officers on September 6, 2010. Id. at ¶ 43. In her statement she wrote that:
4
Reed pinned me down on his futon, pinning my arms above my head by the
wrists, and this is when I noticed he was aroused. I struggled to free myself
as Reed repeatedly punched me with his closed fists in my groin and chest.
He had also been pinching and slapping/scratching my backside (butt)
throughout our fight. I began to slap, hit, punch, and knee Reed in the groin
to fight him off. He said “I wanted to” and that I was a “huge bitch” for
resisting him.
Id. at ¶ 44. She went on to state that she was finally able to free herself from Mr.
Dempsey and run out into the hall where she slapped him, and then Mr. Dempsey
forced her arms behind her back and tackled her to the ground. Id. at ¶ 45-49.
On September 6, 2010, Mr. Dempsey requested that he be provided a copy
of the incident report4 and was told by Defendant Ulmer that Ms. Stefanowicz had
not pressed charges against him and that he could not obtain a copy of the incident
report until charges were filed.5 Id. at ¶ 99-100. That day, Defendant Dean Locher
temporarily suspended Mr. Dempsey from Bucknell University. Pl.’s SOF ¶ 52.
On September 7, 2010, Defendant Holtzapple filed a criminal complaint against
Mr. Dempsey, charging him with simple assault, harassment, and disorderly
conduct. Defs.’ SOF ¶ 50.
Two days later Ms. Stefanowicz met with university officials and was told
that Mr. Dempsey’s temporary suspension had been lifted as a result of the nocontact condition of his bail on the criminal charges. Id. at ¶ 56-57. Following this
4
In the Complaint, Plaintiff alleges that he requested a copy of Ms. Stefanowicz’s written statement; however, in his
Brief in Opposition to the Bucknell Defendants’ Motion for Summary Judgment, he claims that he actually requested
a copy of the incident report.
5
Mr. Dempsey does not discuss this occurrence in his statement of facts; however, he does argue in his Brief in
Opposition to the Bucknell Defendants’ Motion for Summary Judgment that Defendant Ulmer told him that Ms.
Stefanowicz was not pursuing charges against him. The Court finds no support for this latter statement in the record.
5
meeting, BUPS officials decided to re-interview Ms. Stefanowicz and were given
further information regarding her assault, including a more specified sexual
component. Id. at ¶ 61-83. On the basis of this new information, Defendant
Holtzapple filed a new criminal complaint against Mr. Dempsey charging him with
false imprisonment and indecent assault, in addition to the original charges. Id. at ¶
88; Pl.’s SOF ¶ 64.
Though Mr. Dempsey does not dispute that Ms. Stefanowicz gave these
statements and the trajectory of the ensuing events, he does dispute its accuracy
and the implications of the witness statements, which he alleges to be exculpatory
information that should have cast serious doubt on Ms. Stefanowicz’s credibility.
He argues that, rather than an assault, what occurred while he and Ms. Stefanowicz
were alone together in his room was merely “play-fighting.6” Specifically, Mr.
Dempsey testified that while alone in his room, “[Kelly] had her hand on [Reed’s]
hands . . . kind of hands on [his] wrists, pushing [] [him] down against the futon.”
Id. at ¶ 8. When he attempted to move Ms. Stefanowicz off of him, her leg
knocked over his Brita water pitcher and spilled it on the ground. Id. at ¶ 10. After
that encounter, Ms. Stefanowicz left the room and Mr. Dempsey emerged shortly
afterwards. Id. at ¶ 11-12. While conversing in the hallway, Ms. Stefanowicz
allegedly attempted to begin “play-fighting” once more by poking Mr. Dempsey’s
6
While the Court is not entirely sure what this activity is, “play-fighting” appears to be a type of consensual
fighting/wrestling in which all parties to the activity are joking and the fight is in jest.
6
arm and shoving him. Pl.’s SOF ¶ 13. Moreover, after chasing Mr. Dempsey down
the hall, Ms. Stefanowicz hit him in his genitals, causing Mr. Dempsey to give her
a “bear hug” in order to stop her from hitting him. Id. at ¶ 14-16. In the course of
that bear hug, the pair fell to the ground, causing many of Ms. Stefanowicz’s
injuries. Id. at ¶ 16-17.
Regarding the allegedly exculpatory witness statements, Mr. Dempsey
contends that they clearly demonstrate that Ms. Stefanowicz was lying in her
statement to BUPS officers and that because of their possession of these witness
statements the officers reasonably should have known that Ms. Stefanowicz lacked
credibility. These witness statements do corroborate the fact that Mr. Dempsey
and Ms. Stefanowicz were acting playfully before and after they were alone
together in Mr. Dempsey’s room; however, no witness statement discusses what
happened in the room when the pair were alone together.
On September 14, 2010, while the criminal charges were still pending, Ms.
Stefanowicz initiated internal student conduct charges against Mr. Dempsey and, in
response, Mr. Dempsey filed student conduct charges against Ms. Stefanowicz.
Defs.’ SOF ¶ 89-90; Pl.’s SOF ¶ 65-66. Two weeks prior to the hearing, Mr.
Dempsey received various documents from the University as required by the
Student Handbook, including copies of his and Ms. Stefanowicz’s written
statements, a redacted version of the BUPS’s incident report, photographs of Ms.
7
Stefanowicz’s injuries, and written witness statements of eleven witnesses. Defs.’
SOF ¶ 106. Five days before the hearing he was subsequently provided with the
transcription of Ms. Stefanowicz’s September 9, 2010 interview, the written
statement of Rebecca Neubauer, a DVD of the September 5, 2010 field hockey
game in which Ms. Stefanowicz played, additional photographs, and a copy of the
report from Ms. Stefanowicz’s September 5, 2010 medical evaluation at
Evangelical Hospital. Id. at ¶ 109.
Mr. Dempsey further requested from the University but did not receive, an
audio recording of Ms. Stefanowicz’s first interview, a complete copy of the BUPS
incident report, the handwritten notes of Defendant Officer Fisher, and additional
exculpatory witness statements. Pl.’s SOF ¶ 70; Defs.’ SOF ¶ 110. The Bucknell
Student Handbook provides that students shall receive “[a] copy of the charge(s)
and supporting information, including the Public Safety Information Report, Police
Report, Housing and Residential Life Information Report, and statements from any
witnesses.” Bucknell Defs.’ M. for Summ. J., Ex. EE, ECF No. 126-31.
Bucknell University held a hearing on both sets of charges from October 57, 2010. Defs.’ SOF ¶ 92. Both Mr. Dempsey and Ms. Stefanowicz were found
guilty of disorderly conduct based on their conduct in the residence hall on the
night of September 4-5, 2010, and were exonerated on all other filed charges. Id. at
¶ 93; Pl.’s SOF ¶ 69. Both received letters of censure and were required to move
8
to separate residence halls. Defs.’ SOF ¶ 94. On October 29, 2010, Union County,
Pennsylvania District Attorney Peter Johnson withdrew the criminal charges
against Mr. Dempsey. Id. at ¶ 96; Pl.’s SOF ¶ 71. Mr. Dempsey was subsequently
reinstated to the University and graduated in May 2013. Defs.’ SOF ¶ 117.
2. Facts Pertaining to Defendant Voci
On September 7, 2010, after the first set of criminal charges were filed
against Mr. Dempsey, Defendant Voci’s law firm was contacted by Mr.
Stefanowicz regarding the incident and to assist the family through the process.
Pl.’s SOF ¶ 53. After Bucknell University officials lifted Mr. Dempsey’s
temporary suspension, Defendant Voci engaged in a telephone call with Steven
Becker, Esq., Mr. Dempsey’s attorney, and Wayne Bromfield, Esq., counsel for
Bucknell University, to protest the lifting of the suspension. Def. Voci’s Statement
of Facts ¶ 30, May 29, 2014, ECF No. 124-22 (hereinafter “Def. Voci’s SOF”);
Pl.’s SOF ¶ 55. During that call, Defendant Voci referred to Mr. Dempsey as
something akin to a “sexual assaulter.” Def. Voci’s SOF ¶ 30.
On September 21, 2010, Defendant Voci wrote a letter to Defendant Dean
Conrad, seeking to stop the student conduct hearing until the criminal charges
against Mr. Dempsey had run their course and, further, seeking dismissal of Mr.
Dempsey’s student conduct charges against Ms. Stefanowicz. Id. at ¶ 29. That
letter stated that “the University [is] allowing the perpetrator of a sex crime to
9
misuse the internal process to continue to victimize a student/victim.” Pl.’s SOF ¶
57. On September 29, 2010, Defendant Voci authored two separate pieces of
correspondence, one an email to Defendant Conrad and the other a letter to Mr.
Bromfield, which Defendant Voci also forwarded to the Bucknell University Board
of Trustees. Def. Voci’s SOF ¶ 32-33. The first related to his concerns over the
failure of the University to postpone the student conduct hearing; in it he referred
to Mr. Dempsey as Ms. Stefanowicz’s “assailant.” Pl.’s SOF ¶59. The latter was
sent for the same purposes, and referred to Mr. Dempsey throughout as “the
offender,” Ms. Stefanowicz’s “attacker,” and the perpetrator of a “sex crime.” Id. at
¶58.
Later, Defendant Voci spoke with Joseph Deinlein, a reporter from The
Daily Item newspaper, based in Sunbury, Pennsylvania. Def. Voci’s SOF ¶ 18-20.
He was quoted only twice in Mr. Deinlein’s articles, once on October 5, 2010 and
again on October 6, 2010. Id. at ¶ 18-20. Specifically, in the October 5, 2010
article, Defendant Voci stated, “Our client did not request this hearing date. . . . She
instituted the internal charges at the suggestion of university officials who advised
her in the aftermath of incident. As you can imagine, this is a shaken 19-year-old
girl reaching out to the university.” Id. at ¶ 18. On October 6, 2010, he is quoted as
saying, “She was told her charges against her attacker would be thrown out if she
did not attend the hearing. . . . And the charges against her would be tried in
10
abstentia.” Id. at ¶ 20. Defendant Voci does not dispute that he made these
statements to Mr. Deinlein.7
II. STANDARD OF REVIEW
Summary judgment is appropriate where “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 fact is “material” where it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable jury,” giving credence to the evidence favoring the nonmovant and
making all inferences in the nonmovant’s favor, “could return a verdict for the
nonmoving party.” Id.
The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir.
2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J.,
dissenting)). The moving party may satisfy this burden by either (i) submitting
affirmative evidence that negates an essential element of the nonmoving party’s
claim; or (ii) demonstrating to the Court that the nonmoving party’s evidence is
7
Defendant Voci does argue that “[t]he reference to Reed as an ‘attacker’ in the October 6, 2010 article was not
attributed to statements made by Attorney Voci.” Def. Voci’s SOF ¶ 28. However, this Court does not believe that
he is arguing that he never made the above-referenced statement to Mr. Deinlein which is quoted in the article.
However, if he does intend to argue this point, the affidavit submitted by Mr. Deinlein would tend to prove
otherwise, and Defendant Voci offers no evidence to support any assertion that Mr. Deinlein is lying. The fact that
Mr. Deinlein could have received the information from elsewhere does not negate the fact that he actually received it
from Defendant Voci.
11
insufficient to establish an essential element of the nonmoving party’s case. Id. at
331.
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot
be or is genuinely disputed must” be supported by “materials in the record” that go
beyond mere allegations, or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also
Anderson, 477 U.S. at 248–50.
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’” Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, “[i]f a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
12
In deciding the merits of a party’s motion for summary judgment, the
Court’s role is not to evaluate the evidence and decide the truth of the matter, but
to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the factfinder, not the district court.
BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. DISCUSSION
A. False Arrest (Count I)
Mr. Dempsey has asserted a false arrest claim, pursuant to 42 U.S.C. § 1983,
against Defendants Holtzapple, Ulmer, Middleton, Fisher, and Ettinger. He alleges,
primarily, that the officers did not have probable cause to arrest him because they
knew that the information upon which they had secured his arrest warrant was
materially misleading. Specifically, he argues that they omitted contradictory,
false, and exculpatory information, including numerous contradictory witness
statements and that they failed to acknowledge the contradictions inherent in Ms.
Stefanowicz’s own statements to the officers. He argues further that probable
cause is an issue of fact to be determined by a jury and that therefore summary
judgment should be denied on that basis alone. Defendants contend instead that an
analysis of probable cause is based on consideration of all of the information that
the officers had in their possession at the time the arrest warrant was issued and
13
that in this case no reasonable officer could have concluded that probable cause did
not exist; therefore, summary judgment is warranted as a matter of law.
In order to prevail on a claim brought pursuant to § 1983, a plaintiff must
demonstrate that the defendants engaged in conduct under color of state law that
deprived the plaintiff of rights, privileges, or immunities protected by the U.S.
Constitution or laws of the United States. 42 U.S.C. § 1983; see also Parratt v.
Taylor, 451 U.S. 527, 535 (1981). In a § 1983 claim based upon false arrest, the
proper inquiry is “whether the arresting officers had probable cause to believe the
person arrested had committed the offense.” Dowling v. Philadelphia, 855 F.3d
480, 482 (3d Cir. 1995).
A false arrest is one in which either the arrest is made without probable
cause or the arrest was made by a person without privilege to do so. Renk v. City of
Pittsburgh, 641 A.2d 289, 295 n.2 (Pa. 1994). To state a claim for false arrest
based on a warrant, the plaintiff must establish that the defendants: (1) “knowingly
and deliberately, or with reckless disregard for the truth, made false statements or
omissions that create a falsehood in applying for a warrant;” and (2) that “such
statements or omissions are material, or necessary, to the finding of probable
cause.” Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (quoting Sherwood
v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).
14
1.
Omissions
Mr. Dempsey contends that the officers omitted numerous witness
statements within their Affidavit of Probable Cause which were contradictory to
Ms. Stefanowicz’s own statement and which, moreover, tended to exculpate him of
the crimes alleged, including those of Kristen Brundange, Gabriela Ors, Morgan
Slade, Demitri Carahalios, Gregory Fast, and Wade Payson-Denney. Defendants
respond to this argument only to call attention to the fact that in his deposition, Mr.
Dempsey could not recall any exculpatory evidence that was omitted from the
Affidavit of Probable Cause.
The Third Circuit has explained that material omissions are made with
reckless disregard for the truth if the affiant “withholds a fact in his ken that ‘any
reasonable person would have known [] was the kind of thing the judge would
wish to know.’” Wilson, 212 F.3d at 787 (quoting United States v. Jacobs, 986
F.2d 1231, 1235 (8th Cir. 1993)). The witness statements at issue were undeniably
exculpatory, even if not directly applicable to the question of what happened in Mr.
Dempsey’s room while the pair was alone, because they provide circumstantial
evidence as to what may have occurred between the pair in a way that could
exonerate Mr. Dempsey and, additionally, as to the state of mind of the parties
involved; therefore, a judge would have wished to be aware of the statements when
issuing the arrest warrant.
15
It is an issue of fact, however, as to whether all of the witness statements
were provided along with the Affidavit of Probable Cause. In his deposition,
Defendant Friedberg noted that the District Attorney had endorsed the criminal
charges of September 10, 2010 even after having access to “every single tape,
witness statement, audio recording, everything.” However, it is not clear whether
these witness statements were provided to the judge in issuing the arrest warrant,
and nothing in the record suggests that this was also the case at the time that the
September 7, 2010 criminal charges were brought. Thus, construing the facts in a
light most favorable to the nonmoving plaintiff, this Court holds that Defendants
recklessly omitted the witness statements and the first prong of the analysis is
satisfied.
2.
Materiality
The second prong of the analysis requires the Court to assess whether the
omission of the witness statements was material or necessary towards the finding
of probable cause. Wilson, 212 F.3d at 789. A court, “when confronted with a false
affidavit used to obtain a search warrant, must remove a falsehood created by an
omission by supplying the omitted information to the original affidavit.”
Sherwood, 112 F.3d at 400.
Probable cause is measured by a very low standard, requiring only a fair
probability that the person have committed the crime. See Wychunas v. O’Toole,
16
252 F.Supp.2d 135, 142 (M.D.Pa. 2003) (Mannion, M.J.). “[P]robable cause to
arrest exists when the facts and circumstance within the arresting officer’s
knowledge are sufficient in themselves to warrant a reasonable person to believe
that an offense has been or is being committed by the person to be arrested.”
Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995). As such, there
can be no liability on the part of the arresting officer unless “no reasonably
competent officer” would conclude that probable cause existed. Malley v. Briggs,
475 U.S. 335, 341 (1986). Though the existence of probable cause is customarily
an issue of fact to be determined by a jury, a court can conclude that probable
cause did exist as a matter of law if the evidence, viewed most favorably to the
plaintiff, would not reasonably support a contrary factual finding. See Sherwood,
113 F.3d at 401 (citing Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d
Cir. 1995)).
In this case, Mr. Dempsey was first charged on September 7, 2010 with
simple assault pursuant to 18 Pa.C.S. § 2701(a)(1), harassment pursuant to 18
Pa.C.S. § 2709(a)(1), and disorderly conduct pursuant to 18 Pa.C.S. § 5503(a)(4).
He was subsequently charged on September 10, 2010 with false imprisonment
pursuant to 18 Pa.C.S. § 2903(a) and indecent assault pursuant to 18 Pa.C.S. §
3126(a)(1). In charging him with such, Defendant officers had at their disposal
numerous pieces of evidence tending to implicate Mr. Dempsey as the perpetrator
17
of these crimes against Ms. Stefanowicz. Specifically, they had: (1) multiple
statements by Ms. Stefanowicz, both written and audiotaped8; (2) photographs of
significant injuries to Ms. Stefanowicz that she claimed were a result of the assault
by Mr. Dempsey; (3) a corroborating statement from Ms. Stefanowicz’s roommate
who, though she did not see the alleged attack, repeated what Ms. Stefanowicz had
relayed to her directly after the attack which tended to inculpate Mr. Dempsey; and
(4) text messages sent from Mr. Dempsey to Ms. Stefanowicz in which he
apologized for the events that had transpired. All of this evidence in the officers’
possession, considered together, created a fair probability that he committed the
crimes alleged, such that probable cause for the officers to arrest Mr. Dempsey
existed. Moreover, the same evidence still existed three days later upon the filing
of additional charges, with the addition of a subsequent interview in which Ms.
Stefanowicz further detailed the assault.
While the officers also had access to the variety of witness statements which
could have potentially exculpated Mr. Dempsey of the crimes alleged, the
availability of these witness statements did not negate probable cause. Rather, all
of the statements alluded to by Mr. Dempsey neither exonerated him of the
offenses charged, nor directly impugned upon Ms. Stefanowicz’s credibility.
8
Mr. Dempsey also argues that Ms. Stefanowicz’s statements to the officers were substantially unreliable because
her testimony changed throughout the course of the proceedings. However, this Court believes that it is a
mischaracterization to say that her account of the incident “changed”; rather, she appears to have added detail to her
story as the proceedings progressed. While such conduct may demonstrate unreliability, it is a stretch to label her
testimony “substantially unreliable” based on these additions, so as to outweigh her statement that Mr. Dempsey
assaulted her.
18
Rather, these statements related only to events that occurred before the alleged
assault or after the alleged assault, or related to the pair’s relationship generally.
Because, however, Mr. Dempsey and Ms. Stefanowicz were undisputedly alone in
Mr. Dempsey's room for a period of time, none of the witness statements bears
directly on the alleged assault so as to explicitly contradict Ms. Stefanowicz’s
statement to the officers. As such, though the statements were exculpatory in that
the actions of the two parties may have tended to prove that Mr. Dempsey was free
from guilt, they could not negate the probable cause which existed in the forms
described above. Consequently, this Court finds that the evidence cannot
reasonably support a contrary factual finding and summary judgment is granted in
favor of Defendants on Count I for false arrest.
B. Malicious Prosecution (Count II)
To state a claim for malicious prosecution, a plaintiff must demonstrate that:
(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding
ended in the plaintiff’s favor; (3) the proceeding was initiated without probable
cause; (4) the defendants acted maliciously or for a purpose other than bringing the
plaintiff to justice; and (4) the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal proceeding. See Estate of
Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). Mr. Dempsey argues that
there is a genuine dispute of material fact as to whether the Defendants knowingly
19
prosecuted Mr. Dempsey when they lacked probable cause. Defendants, on the
other hand, argue again that probable cause did exist and therefore as a matter of
law Mr. Dempsey’s malicious prosecution claim cannot stand.
“[I]t is axiomatic that, in order to prevail on this claim, the Plaintiff must
establish an absence of probable cause.” Mekata v. Kamoie, 955 F.Supp.2d 345
(M.D.Pa. 2013) (Jones, J.). As discussed previously, see supra section III.A,
probable cause to arrest Mr. Dempsey and initiate criminal proceedings did exist as
a matter of law at the time the Affidavit of Probable Cause was filed.
Consequently, summary judgment is granted on Count II as against all charged
Defendants.9
C. Supervisory Liability (Count III)
Mr. Dempsey has asserted a claim of supervisory liability against
Defendants Bucknell, Friedberg, Locher, Badal, Marrara, and Bravman as final
policymakers who ratified the false arrest and malicious prosecution of Mr.
Dempsey. He further asserts a claim of bystander liability against Defendant
Captain Lauver for his failure to stop the arrest and prosecution of Mr. Dempsey,
despite having the authority to do so and the knowledge that the officers lacked
probable cause.
9
Remaining defendants on this claim are Officers Ettinger, Holtzapple, Ulmer, Middleton, and Fisher.
20
In order to establish supervisory liability, a plaintiff must show that a
supervisor “participated in violating their rights, or that he directed others to
violate them, or that he . . . had knowledge of and acquiesced in his subordinates’
violations.” Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
Moreover, to demonstrate a claim of bystander liability a plaintiff must establish
that the officer, whether supervisory or not, failed to intervene when a
constitutional violation was taking place within his or her presence. Smith v.
Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). If an officer does not intervene
to stop the occurrence of a constitutional violation in his or her presence, he will
only be liable if there was a “realistic and reasonable opportunity to intervene.” Id.
As is logically implied by these two causes of action, in order to assert a
claim under Section 1983 of either supervisory liability or bystander liability, a
violation of that section must have occurred. Because this Court has already held
that Mr. Dempsey’s claims for false arrest and malicious prosecution fail as a
matter of law, by logical extension, there was no constitutional violation and there
can be no supervisory liability. As such, summary judgment is granted for all
moving Defendants on this claim.
D. False Imprisonment (Count IV)
A claim for false imprisonment under Pennsylvania law requires a plaintiff
to establish: (1) the detention of another person; and (2) the unlawfulness of that
21
detention. See Renk, 641 A.2d at 293 (Pa. 1994). As with a claim for false arrest
under federal law, the relevant inquiry in a claim for false imprisonment under
state law is whether the officers lacked probable cause in arresting the plaintiff. See
id. The analysis of probable cause under this state law claim is identical to that
under federal law. See id. (“Probable cause exists when ‘the facts and
circumstances which are within the knowledge of the police officer at the time of
the arrest, and of which he has reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief that the suspect has committed or
is committing a crime.’”) (quoting Commonwealth v. Rodriguez, 585 A.2d 988,
990 (1991)). Thus, for the same reason that Mr. Dempsey’s false arrest claim
brought pursuant to Section 1983 fails as a matter of law, this claim must also fail
based on the existence of probable cause.
E. Defamation (Count VII)
The only defamation claim remaining in this litigation is asserted against
Defendant Voci for statements he made to The Daily Item regarding Mr. Dempsey
and his role in the incident, two letters that he sent to Dean Conrad concerning the
student conduct hearing, a teleconference between him, Mr. Dempsey’s counsel,
and Bucknell University counsel, and a letter to Pennsylvania state senators.
Defendant Voci argues first that he did not actually make the defamatory
statements at issue and therefore he cannot be considered to have published the
22
statements as required to state a claim for defamation and further, that the
statements were neither untrue nor unjustifiable. He argues next that the
statements that he did make were privileged because of his role as an attorney for
Ms. Stefanowicz. Finally, Defendant Voci contends that the letter received by
Bucknell from State Senators Yaw and Tomlinson is not relevant to a defamation
claim against him because he did not contact the senators with the details
surrounding Ms. Stefanowicz’s assault; rather, it was the Stefanowicz family that
reached out to the senators on their own initiative.
Mr. Dempsey responds that he has met all of the elements for proving a
cause of action for defamation and that the statements were not privileged because
Defendant Voci was acting only as an advisor to Ms. Stefanowicz, not as her
attorney. Moreover, even if privilege did apply to Defendant Voci’s statements, he
abused and therefore waived the privilege because he published defamatory
statements about Mr. Dempsey excessively and he acted with malice in doing so.
A claim for defamation requires a plaintiff to establish: (1) the defamatory
character of the communication; (2) its publication by the defendant; (3) its
application to the plaintiff; (4) the understanding by the recipient of the defamatory
meaning; (5) the understanding by the recipient that the statement refers to the
plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7)
abuse of a constitutionally privileged occasion. 42 Pa. Cons. Stat. § 8343. “A
23
publication is defamatory if it ‘tends to blacken a person’s reputation or expose
him to public hatred, contempt or ridicule or injure him in his business or
profession.’” Dunlap v. Phila. Newspapers, Inc., 448 A.2d 6, 10 (Pa. Super. Ct.
1982) (quoting Cosgrove Studio & Camera Shop, Inc. v. Pane, 182 A.2d 751, 753
(Pa. 1962)). “In order to be actionable, the words must be untrue, unjustifiable,
and injurious to the reputation of another.” Joseph v. Scranton Times L.P., 959
A.2d 322, 334 (Pa. Super. Ct. 2008). An action involving “words imputing a
criminal offense, a loathsome disease, business misconduct, or serious sexual
misconduct” is considered slander per se; in such an action the plaintiff need not
prove special damages. Chicarella v. Passant, 494 A.2d 1109, 1115 n.5 (Pa. Super.
Ct. 1985) (citing Restatement (Second) of Torts § 570 (1997)).
However, communications pertinent to any stage of a judicial proceeding are
accorded an absolute privilege. See Binder v. Triangle Publications, Inc., 275 A.2d
53, 56 (Pa. 1971). That is, the holder of the privilege cannot waive the privilege
and it cannot be destroyed by abuse. See id; see also Post v. Mendel, 507 A.2d 351,
355 (Pa. 1986) (“Importantly, the existence of the privilege does not depend upon
the motive of the defendant in making the allegedly defamatory statement.”). The
policy behind this privilege is “to afford freedom of access to the courts, to
witnesses to encourage their complete and unintimidated testimony in court, and to
counsel to enable him to best represent his client’s interests.” Id.
24
“Moreover, the privilege extends not only to communications made in open
court, but also encompasses pleadings and even less formal communications such
as preliminary conferences and correspondence between counsel in furtherance of
the client’s interest.” Richmond v. McHale, 35 A.3d 779, 785 (Pa. Super. Ct. 2012).
However, the privilege afforded to counsel in their role as advocates is not
limitless. Rather, only “those communications which are issued in the regular
course of judicial proceedings and which are pertinent and material to the redress
or relief sought” are protected from claims of defamation. Post, 507 A.2d at 355.
Any doubt as to whether the defamatory statement was actually “pertinent and
material to the redress or relief sought” must be resolved in favor of pertinency and
materiality. See Richmond, 35 A.2d at 785. Whether a statement is privileged is a
matter of law for the court to decide. See id.
1.
Letter and Emails sent by Defendant Voci
Mr. Dempsey alleges that Defendant Voci defamed him through several
communications with Bucknell University officials and counsel, and with the
Bucknell University Board of Trustees. The first of these communications was a
teleconference between Defendant Voci, Steven Becker, Esq., counsel for Mr.
Dempsey, and Wayne Bromfield, Esq., counsel for Bucknell, regarding the lifting
of the temporary suspension of Mr. Dempsey. On this conference call, Defendant
25
Voci referenced Mr. Dempsey as something akin to a “sexual assaulter.” Becker
Aff. 134.
The next communication occurred on September 21, 2010 when Defendant
Voci wrote a letter to Dean Conrad, the Associate Dean of Students, seeking to
stop the Hearing Board for Sexual Misconduct and the dismissal of Mr. Dempsey’s
student conduct charges against Ms. Stefanowicz. In this letter, Defendant Voci
referred to Mr. Dempsey as the “perpetrator of a sex crime.” Voci M. for Summ. J.,
Ex. M, ECF No. 124-13 (hereinafter “Def. Voci M.S.J”).
On September 29, 2010, Defendant Voci authored an email, again to Dean
Conrad, regarding the denial of his request for postponement of the student
conduct hearing. In this email he referred to Mr. Dempsey as Ms. Stefanowicz’s
“assailant.” Id., Ex. O, ECF No. 124-15. Finally, on that same day Defendant Voci
wrote a letter to Wayne Bromfield, counsel for Bucknell, regarding his
dissatisfaction with Bucknell’s handling of the internal process and the harm that it
was doing to Ms. Stefanowicz. In that letter he refers to Mr. Dempsey as “the
offender” or an “attacker” and to Ms. Stefanowicz as the “female victim of a sex
crime.” Id., Ex. P, ECF No. 124-16. Furthermore, Defendant Voci forwarded this
letter to the Bucknell University Board of Trustees. Id.
As a preliminary matter, Mr. Dempsey’s argument that “Defendant Voci’s
role ‘was to advise [the Stefanowiczs’] and explain to them what the criminal
26
process looked like and assist them’” understates the relationship between
Defendant Voci and Ms. Stefanowicz. Even if Defendant Voci was initially
contacted for advice on the criminal process, this does not preclude the possibility
of an attorney-client relationship forming from that point. Nor does the fact that an
attorney merely advocating on behalf of his client, rather than representing the
client in civil or criminal litigation, preclude the existence such a relationship,
especially when the client has a significant interest in ongoing litigation to which
he or she is not an explicit party.
It is clear from the facts provided that Defendant Voci did, in fact, form an
attorney-client relationship with Ms. Stefanowicz. In fact, legal advice and
assistance, regardless of its purpose, is the very essence of legal representation.
The fact that Ms. Stefanowicz was the “victim” does not prohibit her from
retaining an attorney and from being afforded all of the protections of an attorneyclient relationship. Moreover, Defendant Voci was actually engaged in litigation
on behalf of Ms. Stefanowicz immediately prior to the student conduct hearing
when she filed suit and requested a preliminary injunction to prevent the hearing
from going forward. In addition, the mere fact that attorneys outside of the
Bucknell University community were prohibited from serving as advisors/counsel
in the student conduct hearing does not nullify the already-existing attorney-client
relationship between Defendant Voci and Ms. Stefanowicz.
27
Given the existence of this attorney-client relationship, it is this Court’s
determination that the letters and emails authored by Defendant Voci to University
officials were in fact afforded an absolute privilege from a claim of defamation as
communications pertinent to a judicial proceeding and made in furtherance of the
client’s interests. The two letters and the one email at issue were written by
Defendant Voci in an effort to delay the internal hearing process, and they were
clearly authored in anticipation of Ms. Stefanowicz’s motion for a preliminary
injunction. Everything stated in that correspondence was to protect his client’s
emotional well-being and the ongoing criminal litigation in which she had a stake,
and the subject matter was pertinent and material to the relief sought, that is, the
postponement of the student conduct hearing. Moreover, the September 15, 2010
teleconference was also afforded an absolute privilege. Despite the fact that it did
not deal with Defendant Voci’s representation of Ms. Stefanowicz in a judicial
tribunal, he was acting as her attorney at the time and he was advocating her
interests as the alleged victim of a sexual assault.
The fact that the September 21, 2010 letter and the September 29, 2010
email were sent to Dean Conrad rather than counsel for Bucknell University does
not negate the privilege afforded to it. Neither does the fact the September 29,
2010 letter was subsequently forwarded to the Board of Trustees. This is a unique
situation whereby the representatives of the university and the officials involved
28
are plentiful, and counsel for the university was not necessarily the most effective
person with whom to advocate for his client. Rather, the decision to email Dean
Conrad and subsequently forward his correspondence to the Board of Trustees
reflected Defendant Voci’s professional judgment that zealous advocacy required
communication with other members of Bucknell University who he believed could
better assist his client.
Consequently, these statements are privileged. To decide otherwise would
significantly diminish an attorney’s ability to even adequately represent his client’s
interests in a variety of forums, much less to do so zealously. Requiring an
attorney to verify the veracity of his client’s assertions in the face of contrary
allegations by the opposing party would only act to the detriment of both attorney
and client.
2.
Communication with Pennsylvania state senators
Defendant Voci argues that the letter received by Bucknell University from
State Senators Yaw and Tomlinson is not relevant to a defamation claim against
him because he did not contact the senators with the details surrounding Ms.
Stefanowicz’s assault; rather, it was the Stefanowicz family that reached out to the
senators. In his response, Mr. Dempsey makes no reference to the alleged
communication with the senators and presents no evidence in defense of his
allegation. See Fed. R. Civ. P. 56(c)(1)(A). As such, Mr. Dempsey has failed to
29
provide sufficient information to create a genuine dispute of fact on this issue, and
summary judgment is granted on Mr. Dempsey’s claim of defamation with regard
to any alleged communication between Defendant Voci and the senators.
3.
The Daily Item Newspaper Articles
Unlike the letters to and from Bucknell University officials and counsel, the
statements that Defendant Voci made to Joseph Deinlein of The Daily Item do not
fall within the ambit of the absolute privilege afforded to statements made by
counsel in the course of representation. Statements to newspapers cannot be
considered statements made in the regular course of judicial proceedings, and they
are generally not pertinent to the relief sought. Consequently, the Court must
determine whether Mr. Dempsey has established a defamation claim based on
these statements.
Within the October 5, 2010 and October 6, 2010 newspaper articles, there
are only two statements made by Defendant Voci which can be considered
“published” by Defendant Voci so as to satisfy the second element of a defamation
cause of action. See Deinlein Aff. 1-2. All other information within these two
articles came from the motion for a preliminary injunction that Ms. Stefanowicz
filed in an attempt to postpone the student conduct hearing and which would
clearly fall within the ambit of the judicial privilege. Id. With regard to the first,
Defendant Voci is quoted in the October 5, 2010 article as saying, “Our client did
30
not request this hearing date. . . . She instituted the internal charges at the
suggestion of university officials who advised her in the aftermath of incident. As
you can imagine, this is a shaken 19-year-old girl reaching out to the university.”
There is nothing defamatory directed towards Mr. Dempsey with regards to this
statement. The mere fact that Ms. Stefanowicz was upset and shaken neither
implicitly nor explicitly reflects upon Mr. Dempsey’s reputation. As such,
summary judgment is granted for Defendant Voci with regard to this statement.
However, the second statement authored by Defendant Voci is an actionable
defamatory statement. In the October 6, 2010 article, Defendant Voci is quoted as
saying, “[Ms. Stefanowicz] was told her charges against her attacker would be
thrown out if she did not attend the hearing. . . . And the charges against her would
be tried in abstentia.” This statement, specifically its characterization of Mr.
Dempsey as an “attacker,” is obviously defamatory as it impugns Mr. Dempsey’s
reputation and forever labels him in print as a violent sexual deviant. There is no
doubt that such a statement could, and likely did at some point in time, lower Mr.
Dempsey in the estimation of the community.
Furthermore, Mr. Dempsey has proven at this stage of the litigation the basic
elements of a defamation claim. As already established, the statement was
published by Defendant Voci. Additionally, it is clear to any reader that the
statement applied to Mr. Dempsey, as his name is cited within the article as the
31
student Ms. Stefanowicz had accused. Moreover, this Court has no doubt that the
readers of the newspaper article at issue understood the defamatory meaning of the
word “attacker” within the context of a sexual assault hearing. See Gordon v.
Lancaster Osteopathic Hosp. Ass’n, Inc., 489 A.2d 1364, 1368 (Pa. Super. Ct.
1985) (“If the court has any doubt that the communication is defamatory, then the
issue must be given to the jury for them to determine whether the defamatory
meaning was understood by the recipient.”). Finally, because this statement
involved words imputing serious sexual misconduct, it constitutes defamation per
se, and Mr. Dempsey is relieved of his burden of proving special damages. See
Synygy, Inc. v. Scott-Levin, Inc., 51 F.Supp.2d 570, 580 (E.D.Pa. 1999).
Nevertheless, there is one remaining issue of fact that is not within the
purview of this Court’s authority to decide. Specifically, Defendant Voci asserts
that “the statements made by Attorney Voci were neither untrue nor unjustifiable.”
Def. Voci M.S.J. at 24. To the contrary, Mr. Dempsey argues that this
characterization of him as an “attacker” was made in direct contravention of
numerous witness reports which proved otherwise. Though Mr. Dempsey has
proven a prima facie defamation claim as a matter of law, the issue of veracity is a
factual defense appropriately left for determination by a jury; consequently,
summary judgment must be denied on this claim.
32
F. Fraud (Count VIII)
At this stage in the litigation, the only remaining statement supporting Mr.
Dempsey’s claim of fraud is a statement made to him by Defendant Officer Ulmer
when Mr. Dempsey requested a copy of certain documents10. Based on the
allegations in the Complaint, Defendant Ulmer argues that the statement “[Ms.
Stefanowicz] had not pressed charges against him” is not actually false, because as
of the time of Mr. Dempsey’s request, charges had not yet been filed. Defendant
Bucknell University argues further that, just as Defendant Ulmer is not liable for
fraud, neither can it be vicariously liable for a truthful statement. In response, Mr.
Dempsey alleges that Defendant Ulmer actually stated that Ms. Stefanowicz was
not pursuing charges against him, which was a false and misleading statement.
Furthermore, he contends, Bucknell University is vicariously liable for this fraud
because Defendant Ulmer acted during the course of and within the scope of his
employment.
In order to state a claim for fraud, a plaintiff must plead sufficient facts to
support the following elements: (1) a representation; (2) which is material; (3)
which was made falsely, either knowingly or recklessly; (4) with intent to mislead
another into relying on it; (5) justifiable reliance; and (6) resulting injury. See
Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. Ct. 1997).
10
See supra Section I n.3. Regardless of which document was requested, the analysis is the same.
33
This Court does not know and cannot make the determination as to what
Defendant Ulmer said to Mr. Dempsey when he requested a copy of specific
documents; ordinarily, this would be an issue of fact to be determined by the jury.
However, this Court is satisfied that the fact at issue is not genuinely disputed. “A
party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A); see also Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998) (“It is clear, however, that if a moving party satisfies its initial burden of
proving a prima facie case for summary judgment, the opposing party must do
more than simply show that there is some metaphysical doubt as to material
facts.”) (citations omitted).
Despite Mr. Dempsey’s bald assertion that Defendant Ulmer stated that
“Kelly was not pursuing charges against him,” he presents no evidence to support
that claim. In his Brief in Opposition to the Bucknell Defendants’ Motion for
Summary Judgment, Mr. Dempsey does not cite to any part of the record to
demonstrate that Defendant Ulmer actually made the statement at issue, or, for that
matter, any particular statement regarding Mr. Dempsey’s request. Moreover, after
searching the rather extensive record in this case, the Court can find no such
34
supporting documentation to verify that Defendant Ulmer made such a statement to
Mr. Dempsey, much less that the statement was false. Consequently, because Mr.
Dempsey has failed to provide sufficient information to create a genuine dispute of
fact, Defendant Ulmer’s motion for summary judgment is granted on Count VIII
for fraud. Because there is no underlying liability on the part of Defendant Ulmer,
the employee, there can be no vicarious liability on the part of Bucknell. See
Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39 (Pa. Super. Ct. 2000)
(“[a]n employer is vicariously liable for the wrongful acts of an employee. . .”)
(emphasis added).
G. Breach of Contract (Count X)
The last remaining claim for breach of contract emanates from the failure of
Bucknell University to provide Mr. Dempsey with certain requested documents
and information prior to the student conduct hearing. Specifically, Mr. Dempsey
argues that he requested but did not receive: (1) an audio recording of Ms.
Stefanowicz’s first interview; (2) the complete BUPS incident report; (3) Officer
Fisher’s notes on Mr. Dempsey’s first interview with BUPS; and (4) certain
witness statements, specifically, a statement by made by Gregory Fast on
September 5, 2010. Mr. Dempsey argues that these documents were contractually
required to be provided to him prior to the hearing by the Student Handbook and
failure to do so was a breach of contract on the part of Bucknell University. If not
35
for these breaches, he contends, he would not have been found responsible for
disorderly conduct in the student conduct hearing.
Bucknell University, on the other hand, argues that what Mr. Dempsey
received in contemplation of the hearing went above and beyond what it was
contractually required to produce. Moreover, it contends that even if there was a
breach, Mr. Dempsey was not harmed at all because he was found not guilty of
everything except disorderly conduct and, further, that charge was based on the
testimony of various witnesses.
The disputed part of the contract is the following provision contained in the
Student Handbook: The [University] will provide the respondent and the aggrieved
party with the following information, materials, and opportunities. . . A copy of the
charge[s] and supporting information, including the Public Safety Information
Report, Police Report, Housing and residential Life Information Report, and
statements from any witnesses . . . .” The parties naturally dispute what was
required to be provided under this section.
To prove a claim for breach of contract, Mr. Dempsey must prove the
following elements: (1) the existence of a contract, including its essential terms; (2)
a breach of a duty imposed by the contract; and (3) resulting damages. See Lackner
v. Glosser, 892 A.3d 21, 30 (Pa. Super. Ct. 2006). Pennsylvania law has clarified
that “the relationship between a private educational institution and an enrolled
36
student is contractual in nature; therefore, a student can bring a cause of action
against said institution for breach of contract where the institution ignores or
violates portions of the written contract.” Swartley v. Hoffner, 734 A.2d 915, 919
(Pa. Super. Ct. 1999). This contract is embodied by the written guidelines,
policies, and procedures as contained in the written materials distributed to the
student over the course of their enrollment in the institution, including the student
handbook. See id.
To prove damages, Pennsylvania law requires a plaintiff to provide the
factfinder with evidence from which damages may be calculated to a “reasonable
certainty.” ATACS Corp. v. Trans World Communications, Inc., 155 F.3d 659, 668
(3d Cir. 1988). “At a minimum, reasonable certainty embraces a rough calculation
that is not too speculative, vague or contingent upon some unknown factor.” Id.
(citations omitted).
Mr. Dempsey has presented no evidence of damages as a result of
Bucknell’s purported breach of contract. Defendants have included in their motion
for summary judgment Mr. Dempsey’s expert report detailing the damages that
Mr. Dempsey has suffered as a result of the Defendants’ conduct. However, this
allegation deals only with the resulting damage to Mr. Dempsey of the allegations
of sexual assault, not on the disorderly conduct conviction that Mr. Dempsey
received as a result of the student conduct hearing. Since Mr. Dempsey was
37
exonerated during that hearing of any claims of sexual assault, his expert report is
inapplicable.
Mr. Dempsey does allege in his opposition brief that “[b]ut for this breach,
Reed would not have been found responsible for Disorderly Conduct, as the
withheld information contradicted Kelly’s story and proved Reed was actually the
victim of Kelly’s aggressive actions.” However, this Court is at a loss to see how
the information requested, all of which bore solely on the issue of whether Mr.
Dempsey sexually assaulted Ms. Stefanowicz, would have exonerated him of the
disorderly conduct charge. Moreover, even to the extent that Mr. Dempsey argues
that he was the victim of Ms. Stefanowicz’s aggressive actions and he actually had
no part in the disorderly conduct other than to ward her off, the numerous witness
statements relied upon him as exculpatory evidence would prove the contrary. It is
clear from both the witness statements and Mr. Dempsey’s own statements that he
was just as culpable in “play-fighting” with Ms. Stefanowicz, the activity which
formed the basis of his disorderly conduct conviction. Nothing in Ms.
Stefanowicz’s audiotaped interview, Gregory Fast’s statement, the incident report,
or Defendant Officer Fisher’s notes says otherwise11.
Furthermore, Mr. Dempsey has presented no evidence other than his opinion
to the effect that, first, he would have been exonerated on the disorderly conduct
11
The Court was not provided with a copy of Officer Fisher’s notes on Mr. Dempsey’s initial interview. However, it
is likely that the interview was similar to Mr. Dempsey’s own written statement and deposition which implicated
him as a willing participant in the play-fighting.
38
charge and, second, that any damages resulted from that disorderly conduct
conviction. Because this Court determines as a matter of law that Mr. Dempsey
has presented no evidence of damages, the Court need not reach the more difficult
issue of contract interpretation to determine whether Bucknell did, in fact, breach
its contract with Mr. Dempsey. Consequently, summary judgment must be granted
for Bucknell University on Count X for breach of contract.
H. Tortious Interference (Count XIV)
The only remaining claim for tortious interference with contract arises from
Defendant Voci’s communications with Bucknell University officials throughout
the internal investigation of Ms. Stefanowicz’s claims and the student conduct
hearing process. Defendant Voci argues first that Mr. Dempsey has failed to
demonstrate how Defendant Voci’s conduct has harmed the contractual
relationship between Mr. Dempsey and Bucknell University. Furthermore, he
contends that, as with the defamation claim, he was privileged in his
communications with Dean Conrad because he was seeking to further the interests
of Ms. Stefanowicz and to protect her from the emotional harm that could result
from being forced to face and be questioned by her assailant, as well as the
negative effect that the student conduct hearing could have on the pending criminal
proceedings, in which his client had a significant stake.
39
Mr. Dempsey responds that Defendant Voci’s communications with
Bucknell University officials caused Mr. Dempsey to be temporarily suspended
and interfered with the procedural rights afforded to Mr. Dempsey by the Bucknell
University Student Handbook. In addition, he contends that Defendant Voci
interfered by contacting the Board of Trustees, making public defamatory
statements, threatening adverse publicity and litigation if Mr. Dempsey was not
removed from Bucknell, and, finally, attempting to postpone the hearing through
the motion for a preliminary injunction that he filed on behalf of Ms. Stefanowicz.
He claims that Defendant Voci acted purposefully and, further, that whether
Defendant Voci’s conduct was proper is an issue for a jury and therefore summary
judgment should be denied at this juncture in the litigation.
To make a claim for tortious interference with a contract in Pennsylvania, a
plaintiff must prove the following elements: (1) the existence of a contractual
relationship, or prospective contractual relationship, between the complainant and
a third party; (2) purposeful action by the defendant, specifically intended to harm
the existing relationship, or to prevent a prospective relationship from occurring;
(3) the absence of privilege or justification on the part of the defendant; and (4)
actual legal damage. See Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. Ct.
1987). “Legal damage occurs through loss of a legal right to which one is entitled.
40
. . .” CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375,
385 n.10 (3d Cir. 2004).
Defendant Voci is arguing that Mr. Dempsey fails to satisfy the third
element as a matter of law, while Mr. Dempsey argues that the existence of
privilege or justification is a fact-finding analysis for the jury. In doing so, Mr.
Dempsey improperly conflates the two separate requirements of first, the absence
of privilege and second, the determination of impropriety or lack of justification.
While determination of impropriety is often a fact-finding endeavor for the jury,
determination of privilege is a matter of law for the Court to decide.
It is true, as Mr. Dempsey points out, that “the Restatement (Second) of
Torts, which Pennsylvania has expressly adopted, focuses upon whether conduct is
‘proper,’ rather than ‘privileged.’” Hopkins v. GNC Franchising, Inc., 288
Fed.Appx. 871, 874 (3d Cir. 2008) (citing Adler, Barish,Daniels, Levin and
Creskoff v. Epstein, 393 A.2d 1175, 1184 n.17 (Pa. 1978). However, this statement
is merely a reflection of the shift in parlance from the Restatement (First) of Torts
to the Restatement (Second) of Torts. While the first Restatement once said, “One
without privilege to do so, induces or otherwise purposefully causes a third person
to perform a contract with another,” the second Restatement modifies this language
to state, “[O]ne who intentionally and improperly interferes with the performance
of a contract. . . .” (emphases added). The implication that this shift in terminology
41
eradicates any consideration of privilege is misplaced. Rather, what the change
accomplished was to broaden the defense, whereby now, even if a defendant’s
actions do not fall within the narrow ambit of a distinct privilege, they may
nevertheless be immune from suit for tortious interference because they were
proper in the given circumstances.
Consequently, the first step in the inquiry under the third element of a
tortious interference claim requires the fact-finder to analyze whether the conduct
at issue was privileged. If the fact-finder determines that the conduct was not
privileged, the next step in the inquiry is to analyze the propriety of the defendant’s
conduct. It is only at that point in the inquiry that the fact finder must consider the
factors listed in Restatement (Second) of Torts § 767. See Silver v. Mendel, 894
F.2d 598, 604-6 (3d Cir. 1990) (demonstrating the progression of a privilege
analysis under a claim for tortious interference with contract, whereby the court
first considers the existence of privilege and then moves onto consideration of the
various factors demonstrating propriety).
In accordance with this progression of analysis, this Court must first
consider whether Defendant Voci’s conduct was privileged under applicable law.
The Unites States Court of Appeals for the Third Circuit has taken two different
approaches to determining whether a defendant’s conduct was privileged within
the context of a claim for tortious interference. The first approach is that of Silver
42
v. Mendel, 894 F.2d 598 (3d Cir. 1990), in which the plaintiff sued several
defendants who were involved in filing a Petition for Involuntary Bankruptcy
against the plaintiff’s company, which ultimately ruined his business. There, the
court analyzed the issue of privilege in the same manner in which it is analyzed in
the context of defamation. See Silver, 894 F.2d at 603; see supra section III.E.
That is, the court endorsed the application of the judicial privilege doctrine as
articulated by Post v. Mendel to “liability based on those communications which
are issued in the regular course of judicial proceedings and which are pertinent and
material to the redress or relief sought.” Id. (citing Post, 507 A.2d at 353). The
Silver approach was confirmed in 2003 by General Refractories Co. v. Fireman’s
Fund Ins. Co. which, while not dealing directly with the issue of tortious
interference, implicitly acknowledged that this approach is still viable. 337 F.3d
297, 311 (3d Cir. 2003) (recognizing that judicial privilege exists in the context of
a tortious interference claim).
The second approach is that of Schulman v. J.P. Morgan Inv. Management,
Inc., whereby a commercial tenant brought an action against the landlord’s
mortgagee. There, the Court analyzed the issue by relying on § 773 of the
Restatement (Second) of Torts in which:
One who, by asserting in good faith a legally protected interest of his own or
threatening in good faith to protect the interest by appropriate means,
intentionally causes a third person not to perform an existing contract or
enter into a prospective contractual relation with another does not interfere
43
improperly with the other’s relation if the actor believes that his interest may
otherwise be impaired or destroyed by the performance of the contract or
transaction.
35 F.3d 799, 810 (3d Cir. 1994); see also RESTATEMENT (SECOND) OF TORTS §
773.
This Court, while acknowledging that both approaches coexist, must find a
way to reconcile them in order to resolve the issue currently before it. As such,
this Court opts to follow the approach laid out in Silver v. Mendel based on the
specific factual scenario underlying that case which is more analogous to that of
the case at bar. This approach is much more narrowly tailored to the situation
before the Court which deals with the conduct of attorneys on behalf of their
clients. On the other hand, the §773 approach is a much broader one, directed to
the conduct of individuals acting on their own behalf to protect their own legally
protectable interests. As such, the court will apply the judicial privilege doctrine to
Defendant Voci’s conduct.
As explained above, see supra III.E., the conduct of Defendant Voci was
protected by the judicial privilege doctrine.12 Mr. Dempsey does not allege any
different underlying facts to support his claim of tortious interference than those
asserted in support of his defamation claim. Because Defendant Voci’s actions are
12
Though Mr. Dempsey also arguably supports this claim by contending that Defendant Voci’s public defamatory
statements interfered with his contract with Bucknell University, he once again provides no factual support for this
claim. Therefore, although this Court has allowed Mr. Dempsey’s defamation claim to stand on the statement he
made to The Daily Item because of a lack of privilege, there is no genuine dispute as to whether that potentially
defamatory statement interfered with Mr. Dempsey’s contract with the University.
44
protected by absolute privilege, the Court need not even reach the application of
the § 767 factors for determining the propriety of his conduct. Summary judgment
is therefore granted for Defendant Voci on Count XIV for tortious interference
with contract.
I. Intentional Infliction of Emotional Distress (Count XVI)
Finally, all Defendants argue that summary judgment must be granted in
their favor on Mr. Dempsey’s claim for intentional infliction of emotional distress
in Count XVI because Mr. Dempsey has not even attempted to provide any
evidence that he suffered physical harm as a result of the Defendants actions.
Notably, Mr. Dempsey does not respond to this argument in either of his
opposition briefs.
In order to assert a claim for intentional infliction of emotional distress
under Pennsylvania law, a plaintiff must establish: (1) that the defendant’s conduct
was extreme and outrageous; (2) that the conduct was intentional or reckless; (3)
the conduct caused emotional distress; and (4) the distress was severe. See Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979); see also
Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997). “Extreme and
outrageous” conduct is “conduct that is so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
45
atrocious and utterly intolerable in a civilized community.” Robinson v. May Dept.
Stores Co., 246 F.Supp.2d 440, 444 (E.D.Pa. 2003) (citations omitted).
Moreover, in order to state a claim for intentional infliction of emotional
distress, a plaintiff must allege some physical injury, harm, or illness caused by the
defendant’s conduct. See Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D.Pa.
1996) (citing Rolla v. Westmoreland Health Sys., 651 A.2d 160, 163 (Pa. Super.
Ct. 1994)). If a plaintiff fails to present any “competent medical evidence” of
physical injury, the defendant is entitled to judgment as a matter of law. See
Robinson, 246 F.Supp.2d at 444.
Here, Mr. Dempsey has not argued that he suffered any physical injury,
harm, or illness as a result of any of the Defendants’ actions, and he has presented
no evidence that could possibly support such an inference. Consequently,
Defendants’ motions for summary judgment are granted as to this count.
IV. CONCLUSION
Defendants’ Motions for Summary Judgment are granted in part and denied
in part. Counts I, II, III, IV, VIII, X, XIV and XVI are dismissed in their entirety.
Summary judgment is denied with respect to Count VII for defamation as asserted
against Defendant Voci.
BY THE COURT:
/s Matthew W. Brann
Matthew W. Brann
United States District Judge
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