DIETRICH v. WEIBEL et al

Filing 40

MEMORANDUM OPINION indicating that Defendant Weibel's Motion to Dismiss (Docket No. 28 ) will be GRANTED, in part, and the Court will not exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs remaining state law claims within her Amended Complaint; an appropriate Order follows. Signed by Judge Nora Barry Fischer on 2/28/2014. (bdk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CYNTHIA DIETRICH,
Plaintiff,
v.
JACKELYN WEIBEL,
DONNA WILBERT,
DEBRA MCCREARY, and
HUNTINGTON NATIONAL BANK
Defendants.

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Civil Action No. 13-1404
Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
Presently before the Court are the motions to dismiss (Docket Nos. 28, 35) filed by

Jackelyn Weibel (“Weibel”) and Donna Wilbert (“Wilbert”) (collectively, “Defendants”),
pursuant to Federal Rule of Civil Procedure 12(b)(6) with respect to all claims pled in Plaintiff
Cynthia Dietrich’s Amended Complaint of November 26, 2013 (Docket No. 27). Plaintiff pleads
federal claims under 42 U.S.C. § 1983 against Weibel, and related claims under the law of the
Commonwealth of Pennsylvania against Weibel and Wilbert.

(Id.).

This Court exercises

subject-matter jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C. §§ 1331 (federal
question jurisdiction) and 1343 (civil rights). For the following reasons, Weibel’s Motion to
Dismiss (Docket No. 28) will be GRANTED, in part, and the Court will not exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiff’s remaining state law
claims within her Amended Complaint.

II.

PROCEDURAL AND FACTUAL BACKGROUND
At the time of the events in question in the current action, Plaintiff was a single mother

with three children. (Docket No. 27 at 2). During 2004, Plaintiff and her children moved into a
one bedroom apartment attached to the home of her mother, Defendant Wilbert. (Id.). The home
was located at 119 Glasgow Road in Gibsonia, Pennsylvania. (Id.).
On December 15, 2008, Wilbert and her then-living husband, Frank Wilbert, procured a
$100,000.00 loan (“Loan”) from Huntington National Bank (“Huntington”). (Docket No. 27 at
2). The branch of the lending institution from which the loan was secured was located in
Cranberry Township, Pennsylvania. (Id.). At the time, Plaintiff was employed by this branch as
a teller. (Id.). Approximately $60,000.00 of the total Loan amount was used to pay the balance
of a mortgage and home equity loan owed by Wilbert and her husband. (Docket No. 27 at 3).
The remaining $40,000.00 was placed in a joint account held by Plaintiff and Wilbert. (Docket
No. 27 at 10). Wilbert’s husband died in April 2009. (Docket No. 27 at 3). Relations between
Plaintiff and Wilbert subsequently soured. (Id.). On or about May 8, 2011, Plaintiff and her
brother, Frankie Wilbert, had a heated verbal exchange and Plaintiff and her brother’s children
engaged in a physical altercation as a result. (Id.). Wilbert sided with Plaintiff’s brother, and
evicted Plaintiff and her children from her apartment the following day, May 9, 2011. (Id.).
Plaintiff and Wilbert were thereafter estranged. (Docket No. 27 at 4).
On May 31, 2011, Wilbert filed a Police Citizen Complaint Report at the Office of the
District Attorney of Allegheny County. (Docket No. 27 at 4). Wilbert therein indicated that she
had no knowledge of the Loan until May 18, 2011, that she and her husband had never signed
Loan documents, that she and her husband had never traveled to Huntington’s Cranberry
Township branch, and that Plaintiff had fraudulently executed Loan documents and forged

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Wilbert and her husband’s signatures.

(Id.).

Defendant Weibel, a detective employed by

Allegheny County, Pennsylvania, was assigned to Wilbert’s complaint and commenced her
investigation in August, 2011. (Docket No. 27 at 5). Weibel interviewed Wilbert and Plaintiff’s
brother Frankie on August 12, 2011. (Id.). Wilbert reiterated that she had no prior knowledge of
the Loan, that she did not sign the Loan documents, and that her late husband could not have
signed the Loan due to his ill health. (Id.). Wilbert did admit to possibly signing at least two
checks from the account shared with Plaintiff, and into which $40,000.00 of the Loan proceeds
had been deposited. (Id.). She believed that the checks were used to buy appliances. (Docket
No. 27 at 6). Wilbert made no specific accusations against Plaintiff during this interview.
(Docket No. 27 at 5 – 7).
Also, on August 12, 2011, Weibel interviewed Debra McCreary (“McCreary”), an
employee at the Huntington branch in Cranberry Township. (Docket No. 27 at 7). McCreary
was an Account Relationship Associate. (Id.). She was also certified by Pennsylvania to act as a
notary public.

(Id.).

At the request of the Assistant Branch Manager, Leon Cichoski

(“Cichoski”), McCreary often notarized documents for Huntington, sometimes while not in the
presence of the signatories. (Docket No. 27 at 7 – 8). Weibel inspected McCreary’s notary log,
which indicated that Wilbert’s Loan had not been notarized in her or her husband’s presence.
(Docket No. 27 at 7). McCreary made no mention of any involvement by Plaintiff in the
procurement of the Loan. (Docket No. 27 at 8).
On September 6, 2011, Weibel interviewed Plaintiff by telephone regarding Wilbert’s
Loan. (Docket No. 27 at 9). Plaintiff was able to explain some of the details of the Loan,
including its procurement by Wilbert and her husband in December, 2008. (Docket No. 27 at 9).
Plaintiff also informed Weibel that she had been making payments on the Loan on her mother’s

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behalf until the family altercation and subsequent eviction in May, 2011. (Docket No. 27 at 9).
Plaintiff denied obtaining the Loan. (Docket No. 27 at 9).
Weibel interviewed Cichoski on September 12, 2011. (Docket No. 27 at 8). Cichoski
communicated that loan documents were frequently completed over the telephone or outside of
the office. (Docket No. 27 at 8). He had a vague recollection of Wilbert’s Loan, but did not
believe that he was present for the signing of Loan documents, because his signature was missing
from the documents where he should have signed. (Docket No. 27 at 8). Other deficiencies in
the Loan documents – including a lack of copies of Wilbert and her husband’s identifications –
were pointed out by Weibel during her interview with Cichoski, but Cichoski was unable to
explain these deficiencies. (Docket No. 27 at 9). Cichoski also denied having any knowledge as
to whether Plaintiff was involved in procuring the Loan. (Docket No. 27 at 9).
Pursuant to her investigation, Weibel also inspected documents from Huntington
regarding the Loan, as well as some account information belonging to Plaintiff and Wilbert.
(Docket No. 27 at 9 – 10). It was readily apparent from these documents that $60,000.00 of the
Loan proceeds was used to pay prior debts of Wilbert and her husband. (Docket No. 27 at 10).
The remaining $40,000.00 was made payable to cash in Wilbert’s name, and placed in a bank
account held jointly by Wilbert and Plaintiff. (Docket No. 27 at 10). No evidence was reviewed
with respect to the ultimate disposition of the funds in the joint bank account. (Docket No. 27 at
10).
On September 27, 2011, Weibel filed an Affidavit of Probable Cause (“Affidavit”)
against Plaintiff. (Docket No. 27 at 11). Plaintiff was charged therein with violating 18 PA.
CONS. STAT. § 3922(a)(1) (theft by deception) and 18 PA. CONS. STAT. § 4101(a)(3) (forgery).
On September 30, 2011, Plaintiff was arrested and incarcerated for approximately eight-and-one-

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half hours. (Docket No. 27 at 13). A preliminary hearing was held on November 2, 2011.
(Docket No. 27 at 13). A criminal trial was conducted on May 15 and 16, 2013. (Docket No. 27
at 13). Contemporaneous to her criminal prosecution, the Pennsylvania State Police and an
expert hired by Plaintiff’s defense counsel conducted handwriting analyses that revealed that
Wilbert had, in fact, signed the Loan documents.

(Docket No. 27 at 6).

During cross-

examination of Wilbert at trial, she admitted to having knowledge of the Loan prior to May
2011. (Docket No. 27 at 13 – 14). Plaintiff was acquitted of all charges. (Docket No. 27 at 14).
Huntington conducted an internal review of the circumstances surrounding the issuance
of the Loan. (Docket No. 27 at 14). Following this review, Huntington released Wilbert from
any remaining unpaid balance on the Loan through execution of a satisfaction document on
October 20, 2011.

(Docket No. 27 at 14).

Plaintiff was not implicated as having any

involvement with the procurement of the Loan during Huntington’s review. (Docket No. 27 at
14).
Plaintiff filed a Complaint in this Court on September 27, 2013. (Docket No. 1). An
Amended Complaint followed on November 26, 2013. (Docket No. 27). In Counts I and III of
her Amended Complaint, Plaintiff alleges that Weibel was liable for false arrest and malicious
prosecution in violation of the Fourth Amendment to the Constitution of the United States and 42
U.S.C. § 1983 (“§ 1983”). (Docket No. 27 at 15, 17). In Counts II, IV, and V1, Plaintiff asserts
that both Weibel and Wilbert are liable for false arrest, malicious prosecution, and abuse of
process according to the laws of the Commonwealth of Pennsylvania. (Docket No. 27 at 16, 18
– 19). Counts VI and VII allege state causes of action against McCreary and Huntington, but
these are not presently at issue. (Docket No. 27 at 20 – 21).

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In her responsive briefs, Plaintiff voluntarily dismissed Count V against both Weibel and Wilbert. (Docket
Nos. 31 at 13; 39 at 9).

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Motions to dismiss, and accompanying briefs in support were independently filed by
Weibel (Docket Nos. 28, 29) and Wilbert (Docket Nos. 35, 36). Plaintiff filed a brief in
opposition to Weibel’s Motion to Dismiss on December 23, 2013. (Docket No. 31). Weibel
responded on December 31, 2013. (Docket No. 34). Plaintiff filed a brief in opposition to
Wilbert’s Motion to Dismiss on January 28, 2014. (Docket No. 39). No further filings have
been submitted by any parties relative to the motions to dismiss. The issues having been fully
briefed, the motions filed by Weibel and Wilbert are ripe for disposition.
III.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and

plain statement of a claim, and show that the pleader is entitled to relief. Dismissal of a
complaint or portion of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(6)
when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding
dismissal under Rule 12(b)(6) requires a pleading party’s complaint to provide “enough factual
matter” to allow the case to move beyond the pleading stage of litigation; the pleader must
“‘nudge his or her claims across the line from conceivable to plausible.’” Phillips v. County of
Allegheny, 515 F. 3d 224, 234 – 35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550
U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F. 3d 203, 210 – 11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F. 3d at 231 (quoting Twombly, 550 U.S. at 555), and the court

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must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F. 3d
651, 653 (3d Cir. 2003)). Moreover, a pleading party need only “put forth allegations that ‘raise
a reasonable expectation that discovery will reveal evidence of the necessary element[s].’”
Fowler, 578 F. 3d at 213 (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL
2312671 (W.D. Pa. June 4, 2008)). A well-pleaded complaint, even when “it strikes a savvy
judge that actual proof of . . . facts is improbable,” will not be dismissed as long as the pleader
demonstrates that his or her claim is plausible. Phillips, 515 F. 3d at 234 (quoting Twombly, 550
U.S. at 555 – 56).
Nevertheless, the facts provided do need to raise the expectation of relief above a purely
speculative level, and must include more than “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Phillips, 515 F. 3d at 231 – 32 (quoting Twombly, 550
U.S. at 554 – 56). Rule 8(a)(2) “requires a ‘showing’ rather than a blanket assertion of an
entitlement to relief.” Id. at 232. “[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Fowler, 578 F. 3d at 211 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
IV.

DISCUSSION
A. § 1983 Liability
1. Count I: False Arrest
In Count I of Plaintiff’s Amended Complaint, she argues that under § 1983 Weibel is

liable for false arrest in violation of the Fourth Amendment. (Docket No. 27 at 15 – 16). Under
§ 1983, liability for false arrest may be found when it is shown “by a preponderance of the
evidence: (1) that the police officer knowingly and deliberately, or with reckless disregard for the

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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.”
Toribio v. Spece, -- F. App’x --, 2014 WL 661341 at * 2 (3d Cir. 2014) (quoting Wilson v. Russo,
212 F. 3d 781, 787 (3d Cir. 2000)). In responsive briefing, Plaintiff claims that Weibel lacked
probable cause to arrest, that the affidavit of probable cause used to obtain a warrant was
deficient on its face, and that Weibel at least recklessly omitted and misconstrued relevant facts
within the affidavit. (Docket No. 31 at 6 – 13). As such, not only does Plaintiff allege a viable
claim for false arrest in violation of the Fourth Amendment, but she further asserts that Weibel
cannot be shielded by qualified immunity. (Id.). Weibel counters that the facts included in her
affidavit were sufficient to give rise to the conclusion that probable cause existed to arrest
Plaintiff for theft by deception and forgery, and she should enjoy qualified immunity as a result.
(Docket Nos. 29 at 5 – 14; 34 at 1 – 2).
Irrespective of the validity of the warrant presently at issue, and whether Plaintiff can
adequately plead that a false arrest occurred, qualified immunity may relieve Weibel of liability
if her conduct did not “violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Messerschmidt v. Millender, -- U.S. --, 132 S. Ct. 1235,
1244 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity
provides “government officials breathing room to make reasonable but mistaken judgments,” and
“protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting
Ashcroft v. al-Kidd, -- U.S. --, 131 S. Ct. 2074, 2085 (2011); Malley v. Briggs, 475 U.S. 335, 341
(1986)). The Court must look to the “objective legal reasonableness” of Weibel’s actions in
seeking the warrant to arrest Plaintiff. Id. at 1245 (citing Anderson v. Creighton, 483 U.S. 635,
639 (1987)). The facts known to Weibel at the time of application for the warrant are relevant to

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this issue, but Weibel’s subjective motivations are not. Blaylock v. City of Philadelphia, 504 F.
3d 405, 411 (3d Cir. 2007) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). In making its
ultimate determination, the Court will look to whether Plaintiff has shown that a constitutional
right was violated and that the right at issue was clearly established. Pearson, 555 U.S. at 232
(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Presently, it is not disputed by the parties that Plaintiff enjoys a Fourth Amendment right
to freedom from unreasonable searches and seizures, without probable cause, and the Court finds
this right to be clearly established. Mitchell v. Obenski, 134 F. App’x 548, 550 (3d Cir. 2005)
(citing Groh v. Ramirez, 540 U.S. 551, 563 – 64 (2004)); Johnson v. Watson, 113 F. App’x 482,
485 (3d Cir. 2004) (citing Orsatti v. New Jersey State Police, 71 F. 3d 480, 483 (3d Cir. 1995)).
The issue the Court is faced with is the objective reasonableness of Weibel’s assertion of
probable cause in the procurement and execution of the warrant to arrest Plaintiff for the crimes
of theft by deception and forgery under Pennsylvania law. “Probable cause to arrest exists when
the information within the arresting officer’s knowledge at the time of the arrest is sufficient to
warrant a reasonable law enforcement officer to believe that an offense has been or is being
committed by the person to be arrested.” Paff v. Kaltenbach, 204 F. 3d 425, 436 (3d Cir. 2000)
(citing United States v. Cruz, 910 F. 2d 1072, 1076 (3d Cir. 1990)). Probable cause is a “fluid
concept – turning on the assessment of probabilities in particular factual context – not readily, or
even usually, reduced to a neat set of legal rules. Id. (quoting Illinois v. Gates, 462 U.S. 213,
232 (1983)). It does not “require the same type of specific evidence...as would be needed to
support a conviction.” Fiore v. City of Bethlehem, 510 F. App’x 215, 221 (3d Cir. 2013)
(quoting Reedy v. Evanson, 615 F. 3d 197, 211 (3d Cir. 2010)). “[S]ufficient probability, not
certainty, is the touchstone of reasonableness under the Fourth Amendment.” Toribio, 2014 WL

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661341 at *3 (quoting Hill v. California, 401 U.S. 797, 804 (1971)). Further, “[p]robable cause
need only exist as to any offense that could be charged under the circumstances.” Paff, 204 F. 3d
at 435 n. 6 (quoting Barna v. City of Perth Amboy, 42 F. 3d 809, 819 (3d Cir. 1994)).
In her Affidavit (Docket No. 1-3 at 1), Weibel first charged Plaintiff with the commission
of theft by deception in violation of 18 PA. CONS. STAT. § 3922(a)(1), which provides in
pertinent part that:
(a) Offense defined.--A person is guilty of theft if he intentionally obtains or
withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law,
value, intention or other state of mind; but deception as to a person's intention to
perform a promise shall not be inferred from the fact alone that he did not
subsequently perform the promise;
Id. Additionally, Weibel charged Plaintiff with the commission of forgery in violation of 18 PA.
CONS. STAT. § 4101(a)(3), which provides in pertinent part that:
(a) Offense defined.--A person is guilty of forgery if, with intent to defraud or
injure anyone, or with knowledge that he is facilitating a fraud or injury to be
perpetrated by anyone, the actor:
(1) alters any writing of another without his authority;
(2) makes, completes, executes, authenticates, issues or transfers any writing so
that it purports to be the act of another who did not authorize that act, or to have
been executed at a time or place or in a numbered sequence other than was in fact
the case, or to be a copy of an original when no such original existed; or
(3) utters any writing which he knows to be forged in a manner specified in
paragraphs (1) or (2) of this subsection.
Id. Weibel indicated within the Affidavit that she based her decision to seek the arrest warrant
upon information provided by Wilbert – whom Weibel noted to be reliable – as well as details
gleaned from her independent investigation. (Docket No. 1-3 at 1). Magisterial District Judge
David Sosovicka approved a warrant for Plaintiff’s arrest based on said Affidavit. (Id.).

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As an initial matter, when a warrant is alleged to violate the Fourth Amendment, the fact
that a neutral magistrate has issued it “is the clearest indication that the officers acted in an
objectively reasonable manner.” Messerschmidt, 132 S. Ct. at 1245 (citing United States v.
Leon, 468 U.S. 897, 922 – 23 (1984)). “[I]t is the magistrate’s responsibility to determine
whether the officer’s allegations establish probable cause and, if so, to issue a warrant
comporting in form with the requirements of the Fourth Amendment.” Id. (citing Leon, 468 U.S.
at 921). Reviewing courts are to “accord significant deference to a magistrate’s finding of
probable cause to arrest.” Lindenbaum v. Erenius, 433 F. App’x 119, 120 (3d Cir. 2011) (citing
Gates, 462 U.S. at 236). As such, while the mere fact of issuance of a warrant by a neutral
magistrate “does not end the inquiry into objective reasonableness,” “in the ordinary case, an
officer cannot be expected to question the magistrate’s probable cause determination.”
Messerschmidt, 132 S. Ct. at 1245 (citing Malley, 475 U.S. at 341; Leon, 468 U.S. at 923).
Therefore, Plaintiff must meet the high threshold of demonstrating that no reasonably competent
officer would have concluded that Weibel’s warrant should have issued because her affidavit
was so “lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Id. “The occasions on which this standard will be met may be rare, but so too
are the circumstances in which it will be appropriate to impose personal liability on a lay officer
in the face of judicial approval of his actions.” Id. at 1250.
Plaintiff would have this Court find that such a rare occasion currently exists. Plaintiff
argues that the Affidavit was facially invalid because it failed to provide any basis upon which
Plaintiff committed a crime, that Weibel failed to include exculpatory evidence known to Weibel
in the Affidavit, and all the facts as known by Weibel at the time of her application for an arrest
warrant would not have permitted a reasonable officer to conclude that probable cause to arrest

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Plaintiff for theft by deception or forgery existed. (Docket Nos. 27 at 15 – 16; 31 at 6 – 10).
While it is true that “a valid warrant does not immunize an officer from suit if ‘his reliance on it
is unreasonable’ in light of ‘other information that the officer possesses or to which he has
reasonable access,’” Fiore, 510 F. App’x at 222 (quoting Berg v. County of Allegheny, 219 F. 3d
261, 273 (3d Cir. 2000)), such is not the case at present.
The pertinent facts found within the Affidavit included:
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Weibel was a Certified Fraud Examiner with the Allegheny County District
Attorney’s Office for two years prior to becoming a detective with the District
Attorney’s office;
Weibel had a history of assisting in the detection and prosecution of financial
crime cases;
Weibel had significant experience investigating and prosecuting white collar
crimes;
Plaintiff lost her home to foreclosure in 2007;
Plaintiff thereafter resided at the home of Wilbert and her father in an attached
one-bedroom apartment;
Plaintiff informed her parents that she spoke with the loan officer at Huntington
about obtaining a loan for $30,000.00 to enlarge the apartment;
On December 8, 2008, a $100,000.00 line of credit in the name of Wilbert and her
husband was closed at Huntington;
Wilbert informed Weibel that she had no knowledge of the Loan, that she never
signed the Loan documents, that her husband was too ill to have signed the Loan
documents at the time of closing due to Parkinson’s and Alzheimer’s, that the
loan documents indicated Wilbert’s middle initial was “A,” when in fact it was
“V,” and that the year of Wilbert’s birth was incorrect in the Loan documents;
Wilbert did not know of a Huntington account in her name;
Wilbert believed her last mortgage to have been paid-off several years prior;
Plaintiff had stated to Weibel that she had been making payments on the Loan for
seven years prior to being evicted from Wilbert’s apartment;
Bank records showed that approximately $60,000.00 of the Loan had been used to
pay off a legitimate mortgage on Wilbert’s house;
Approximately $40,000.00 of the Loan was being accessed for Plaintiff’s personal
benefit from a Huntington account under Plaintiff and Wilbert’s names; and,
Weibel averred that the evidence gained from an investigation conducted by
Weibel led her to ultimately conclude that, under false pretenses, Plaintiff
fraudulently obtained the Loan in her parents’ names and forged their signatures
on Loan documents while she worked for Huntington.

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(Docket No. 1-3 at 2 – 3). Plaintiff does not believe that the provision of these facts within the
Affidavit was sufficient to demonstrate probable cause to arrest Plaintiff for theft by deception
and forgery. Yet, this was not a “bare bones” affidavit. There is factual matter explicitly cited to
support Weibel’s conclusions, see Gates, 462 U.S. at 239; Nathanson v. United States, 290 U.S.
41 (1933); Aguilar v. Texas, 378 U.S. 108 (1964), there was no knowing reliance upon stale
evidence, see United States v. Zimmerman, 277 F. 3d 426, 437 (3d Cir. 2002), and there was no
reliance upon an uncorroborated or unreliable anonymous tip, see United States v. Williams, 3 F.
3d 69, 74 (3d Cir. 1993). See also United States v. Pavulak, 700 F. 3d 651, 664 (3d Cir. 2012).
The totality of the facts as averred demonstrated that Plaintiff had the need for money
following a foreclosure and subsequent move to a small apartment with her children; Plaintiff
had knowledge of the terms of the Loan and was allegedly making payments on the Loan;
Wilbert claimed to have no knowledge of the Loan and was not involved in the procurement of
the Loan; and, the Loan was obtained from Plaintiff’s place of employment. (Docket No. 1-3 at
2 – 3). Weibel had a history of investigation and prosecution of similar white collar crimes, and
felt that – following an investigation of the parties – the circumstances demonstrated that
Plaintiff had the motive and opportunity to commit the alleged crimes.

(Id.).

While the

Affidavit may not have been iron-clad, in a case like this it did not need to be, Paff, 204 F. 3d at
437 (absent a confession, law enforcement must rely upon circumstantial evidence to infer mens
rea), and qualified immunity does not require such, Messerschmidt, 132 S. Ct. at 1249 (law
enforcement is given breathing room to make reasonable, but mistaken judgments). Moreover,
the warrant was executed by a neutral magistrate, bolstering Weibel’s assertion of probable cause
and reasonable reliance upon her Affidavit. Id. at 1245. There is nothing, here, to suggest that
Weibel knowingly or with reckless disregard violated Plaintiff’s Fourth Amendment rights by

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providing false or misleading information, or that she – and by extension the magistrate – were
plainly incompetent in executing the warrant in this case.
Plaintiff goes on to argue that Weibel allegedly omitted relevant information obtained
from her investigation from the Affidavit, and that such information would have precluded the
magistrate, or any reasonable law enforcement official, from concluding that probable cause
existed to arrest Plaintiff for theft by deception or forgery. (Docket No. 31 at 6 – 13). In
considering this argument, the Court will “excise the offending inaccuracies and insert the facts
recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would
establish probable cause.” Toribio, 2014 WL 661341 at * 2 (quoting Wilson, 212 F. 3d 789).
The Court first notes that from the Police Citizen Complaint Report, Weibel failed to note that:
Wilbert claimed that Plaintiff fraudulently obtained the Loan in Wilbert and her husband’s name;
Wilbert had no knowledge of the Loan before evicting Plaintiff; and, Wilbert proactively sought
to press charges against Plaintiff. (Docket No. 1-2 at 1 – 2).
From the Initial Report2 of Weibel’s interview with Wilbert, Weibel also failed to
indicate that: when viewing checks from the joint account held by Plaintiff and Wilbert, which
included Wilbert’s signature, Wilbert claimed that none of the signatures were hers, but that she
was “unsure about two signatures which could be hers;” and, Wilbert explained that she recalled
signing checks for what she believed was the purchase of appliances – for which she had been
under the impression Plaintiff had procured a small loan. (Docket No. 18 at 2). Plaintiff also
2

“[A] district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings.”
West Penn Allegheny Health System, Inc. v. UPMC, 627 F. 3d 85, 97 n. 6 (3d Cir. 2010). An exception exists for
documents that are “integral to or explicitly relied upon in the complaint.” Id. (quoting In re Burlington Coat
Factory Sec. Litig., 114 F. 3d 1410, 1426 (3d Cir. 1997)). The critical factor is whether a document is the basis for a
claim, not simply whether it was explicitly cited. In re Burlington, 114 F. 3d at 1426. Currently, although not
included as an attachment to her Amended Complaint, Plaintiff does not object to citation to the Initial Report
provided as an exhibit in support of Weibel’s Motion to Dismiss, and Plaintiff cites to this Report to support her
arguments against dismissal. (Docket No. 31 at 2 n. 1). Moreover, in her Amended Complaint, Plaintiff relies upon
evidence contained within the Initial Report, but not explicitly cited. (Docket No. 27 at 5 – 7). As such, the Court
finds that consideration of the Initial Report for purposes of the present motions to dismiss is not improper.

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looks to the fact that Cichoski and McCreary informed Weibel that the Loan documents had been
signed outside their presence, and they had no knowledge of Plaintiff’s involvement in
procurement of the Loan. (Docket No. 31 at 3 – 4, 7 – 10). Cichoski did not affix his signature
at all to the documents, as he should have, and McCreary did not follow proper notary practices
when she notarized the Loan documents. (Id.).
However, contrary to Plaintiff’s assertions, the Court finds that the inclusion of such
additional information in Weibel’s Affidavit would only have served to strengthen her argument
for the existence of probable cause to arrest Plaintiff for theft by deception and/or forgery. These
facts demonstrated that Plaintiff had motive and opportunity, and that she was directly accused
of the crime by the purported victim. See Pavulak, 700 F. 3d at 666 (Plaintiff must show that
“there would have been no probable cause but for” an omission.).

The Court is thereby

compelled to find that – even when viewing the facts in the light most favorable to Plaintiff – the
facts included within the Affidavit, as well as those outside the Affidavit and known to Weibel at
the time of her application for a warrant, were not so “lacking in indicia of probable cause” that
no “officer of reasonable competence would have requested the warrant.” Messerschmidt, 132 S.
Ct. at 1245, 1249 (citations omitted).
Qualified immunity is “immunity from suit rather than a mere defense to liability.”
Pearson, 555 U.S. at 231. The “‘driving force’ behind the creation of the qualified immunity
doctrine was a desire to ensure that ‘insubstantial claims’ against government officials will be
resolved prior to discovery.” Id. (quoting Anderson, 483 U.S. at 640 n. 2). It is exceedingly
important to resolve this issue at the “earliest possible stage in litigation.” Id. (quoting Hunter v.
Bryant, 502 U.S. 224, 227 (1991)). Here, even viewing the facts as alleged by Plaintiff to be
true, the Court finds that qualified immunity must preclude the present suit against Weibel for

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false arrest from proceeding any farther. There is nothing of record to indicate that Weibel was
“plainly incompetent” in executing her duties, or that Weibel knowingly or recklessly deprived
Plaintiff of her rights. As such, Weibel’s Motion to Dismiss Count I of Plaintiff’s Amended
Complaint for false arrest will be granted.
2. Count II: Malicious Prosecution
In Count III of Plaintiff’s Amended Complaint, she argues that under § 1983 Weibel is
liable for malicious prosecution in violation of the Fourth Amendment. (Docket No. 27 at 17 –
18). Under § 1983, liability for malicious prosecution lies when a proceeding brought against a
plaintiff “was initiated without probable cause.” Toribio, 2014 WL 661341 at *4 (quoting
DiBella v. Borough of Beachwood, 407 F. 3d 599, 601 (3d Cir. 2005)). As per the Court’s
discussion above, there was sufficient evidence provided by Weibel to establish probable cause
to arrest Plaintiff for theft by deception and/or forgery under Pennsylvania law. Id. Even had
probable cause not existed, this Court finds Weibel qualifiedly immune due to the objective
reasonableness of her actions in seeking the warrant for Plaintiff’s arrest. Therefore, Weibel’s
Motion to Dismiss Count III of Plaintiff’s Amended Complaint will be granted.
B. Remaining Counts
In light of Plaintiff’s failure to assert federal claims against any parties other than Weibel,
(Docket No. 27 at 15 – 22), and those Counts against Weibel having been dismissed by this
Court, the Court will accordingly decline to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims against Weibel, Wilbert, McCreary, and Huntingon. Trinity Indus.,
Inc. v. Chicago Bridge & Iron Co., 735 F. 3d 131, 135 (3d Cir. 2013) (A district court may
decline to exercise supplemental jurisdiction when “the district court has dismissed all claims

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over which it has original jurisdiction.”). As such, Plaintiff’s Amended Complaint will be
dismissed in its entirety.
C. Leave to Amend
The United States Court of Appeals for the Third Circuit has held that “if a complaint is
subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless
such an amendment would be inequitable or futile.” Phillips, 515 F.3d at 245. Further, “even
when [a] plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss
it, unless the district court finds that amendment would be inequitable or futile, the court must
inform the plaintiff that he or she has leave to amend the complaint within a set period of time.”
Id.

Here, however, amendment would prove futile because the Court has found that the

Affidavit, on its face, provided sufficient evidence to establish probable cause to arrest Plaintiff,
and that qualified immunity is properly applied based on the present facts. Plaintiff was already
given the opportunity to amend her complaint, and a second opportunity would not prove
fruitful; therefore, dismissal will be granted with prejudice.
V.

CONCLUSION
Based upon the foregoing, Plaintiff has failed to plead facts sufficient to demonstrate that

Defendant Weibel could be held liable for false arrest and malicious prosecution in violation of
the Fourth Amendment under § 1983, even when viewing the facts in the light most favorable to
Plaintiff as the non-moving party. Further, Plaintiff has not demonstrated to this Court that
qualified immunity should not attach to Weibel given the objective reasonableness of her actions
in seeking a warrant to arrest Plaintiff. As such, Counts I and III of Plaintiff’s Amended
Complaint are dismissed, with prejudice. Additionally, the Court will not exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims, and therefore Wilbert’s motion, and the

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remainder of Weibel’s motion addressing state law claims brought against her, are denied as
moot. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: February 28, 2014
cc/ecf: All counsel of record.

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