DEFORTE v. BLOCKER et al
OPINION. Signed by Chief Judge Mark R. Hornak on 3/4/19. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THE BOROUGH OF WORTHINGTON ET
Mark R. Hornak, Chief United States District Judge
Plaintiff William DeForte was fired from his position as Chief of Police of Worthington
Borough after failing to provide security for the town’s annual Halloween Parade. The
Pennsylvania State Police, acting on information provided by Borough officials, then
investigated a series of suspicious firearms transfers, stolen police radios, and stolen cash from a
prostitution sting operation. This investigation ultimately led the Armstrong County District
Attorney’s Office to charge Plaintiff with multiple theft-related crimes. The charges were
eventually dropped, and Plaintiff sued several Borough officials and the Pennsylvania State
Police Corporal responsible for the investigation under federal and state law. Under Plaintiff’s
theory, the Defendants knowingly fabricated inculpatory evidence and ignored exculpatory
evidence in an effort to destroy Plaintiff’s career as a police officer. Defendants have moved for
summary judgment on all of Plaintiff’s claims. For the reasons that follow, Defendants’ motions
will be granted.
The following material facts are undisputed1 unless otherwise noted.
i. Worthington Borough and the Parties
Worthington Borough has a population of between 500 and 600 people and occupies an
area of less than one square mile. (Defs.’ Joint Statement of Undisputed and Material Facts
(“Defs.’ SUMF”), ECF No. 108, ¶ 5; Plaintiff’s Response to Defendant’s Joint SUMF (“Pl.’s
Response”), ECF No. 147, ¶ 5.)2 Plaintiff William DeForte was the Chief of Police of the
The facts are taken from the evidence of record that is either undisputed as indicated by the parties, or not fairly
disputed on the record. Disputed facts are viewed in the light most favorable to the nonmoving party in accordance
with Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Here, Plaintiff failed to respond to the Defendants’
Joint Concise Statement of Material Facts (“SUMF”) as required by Local Rule 56.1A(1) and this Court’s Standing
Order on Motion Practice, until nearly a month after his deadline to do so, and fifteen (15) days after Defendants
filed their Responses apprising him of the error, and after Defendants had already filed their Response to his
Statement of Material Facts. (See Plaintiff’s Response to SUMF, ECF No. 147.) He also filed his own Statement of
Undisputed and Material Facts, ECF No. 133, one day late. On this basis, Defendants urge the Court to admit their
SUMF in its entirety and bar Plaintiff from attempting to create a genuine issue of disputed fact through his own
Statement. (Defendants’ Joint Response to Plaintiff’s Statement of Undisputed and Material Facts, ECF No. 135, at
2). Defendants have further moved the Court to strike Plaintiff’s Response. (See Joint Motion to Strike Plaintiff’s
Response to Defendants’ Joint Concise Statement of Material Facts, ECF No. 151.)
Although the Court would be “entitled to deem [Defendants’] statement of facts as admitted,” Smith v. Addy, 343 F.
App’x 806, 808 (3d Cir. 2009) (emphasis added), the Court declines to do so because unlike in Defendants’ cited
authority, Plaintiff filed his own Statement of Undisputed and Material Facts along with his opposition. The Court
will also consider Plaintiff’s Reply to Defendant’s Joint SUMF, at ECF No. 147, to be filed nunc pro tunc. The
Court will deny Defendants’ Motion to Strike at ECF No. 151.
For efficiency, the Court omits separate citations to Plaintiff’s Response, where Plaintiff clearly admits to a fact
contained in Defendants’ Statement of Material Facts. Similarly, the Court omits separate citations to Defendants’
Response to Plaintiff’s Statement of Material Facts where Defendants clearly admit to a fact contained in Plaintiff’s
Statement of Material Facts. The Court further omits duplicative citations to both parties’ statements of facts where
the parties allege identical facts.
Further, as a general matter and as noted in footnotes that follow, Plaintiff’s Response to Defendants’ Statement of
Material Facts, and his Plaintiff’s Statement of Undisputed and Material Facts, are largely non-compliant with Local
Civil Rule 56.1 and contain improper arguments, conclusions, and purported disputes of fact without proper citation
to the record. For instance, at least 95 of the 144 paragraphs in Plaintiff’s SUMF cite to exhibits that either do not
exist or do not support Plaintiff’s statements. Plaintiff’s SUMF also refers to facts that are irrelevant to the case, and
do not relate to his present claims against Defendants. It also repeatedly refers to “unlawful” conduct by
Defendants—an inappropriate legal conclusion. Where the Court reads Plaintiff’s SUMF to directly contravene a
statement in Defendants’ SUMF with proper citation to the record, it has made note of that contravention. As will be
seen in the footnotes that follow, for these reasons, Plaintiff makes innumerable “factual” assertions that are not
grounded in any record facts.
Worthington Borough Police Department (“Worthington PD” or “Department”) from March,
2010, to October, 2012. (Defs.’ SUMF, ¶¶ 1, 7.) Defendant Kevin Feeney was the Mayor of
Worthington Borough from 2005 to 2016. (Defs.’ SUMF, ¶ 2.) Defendant Gerald Rodgers was
the Chief of the Worthington PD from November, 2012, to October, 2016. (Defs.’ SUMF, ¶ 3.)
Defendant Corporal Joseph Zandarski is a Pennsylvania State Police (“PSP”) Trooper. (Defs.’
SUMF, ¶ 4.)
DeForte and Rodgers did not always get along, and but DeForte was responsible for
promoting Rodgers to Sergeant. (Pl.’s Statement of Undisputed and Material Facts (“Pl.’s
SUMF”), ECF No. 133, ¶ 10; Defs.’ Joint Response to Pl.’s SUMF (“Defs.’ Response”) ECF
No. 135, ¶ 10.)
ii. Firearms Purchases
As Chief of Police, DeForte reported to the Borough Council and Defendant (thenMayor) Feeney. (Defs.’ SUMF, ¶ 8.) DeForte could purchase guns and other equipment for the
Department through the Borough. (Defs.’ SUMF, ¶ 11.) According to the Borough Code, Feeney
was responsible for overseeing the Department, but did not have the authority to make purchases
for the Department. (Defs.’ SUMF, ¶ 9.)3 The Borough Council would appropriate funds if it
Based on the nature of these filing, the nature and timing of Plaintiff’s other filings in this case, his seeming
disregard for procedural rules, and the rather disjointed or even odd nature of some of the legal arguments made in
Plaintiff’s briefing (for instance, that the Supreme Court’s qualified immunity analysis in Kisela v. Hughes does not
apply because there the plaintiff alleged a Fourth Amendment, rather than a Fourteenth Amendment, violation, (Pl.’s
Br., ECF No. 127, at 24)), there is reason to believe that Plaintiff may be “reverse ghostwriting” his own legal
papers under his counsel’s name. While the Court does not and need not make any finding or conclusion on this
issue, the Court notes that Counsel, as an officer of the Court, has a duty of candor to this tribunal under
Pennsylvania Rule of Professional Conduct 3.3. The Court reminds Counsel that he may not suborn the
unauthorized practice of law or delegate his professional responsibilities of compliance with the Federal Rules of
Civil Procedure, the Local Rules, and this Court’s Rules to a client or any other individual who is not admitted as a
lawyer to the Bar of this Court. See In re Howard Neil Shipley, 135 S. Ct. 1589 (2015).
Plaintiff avers that Feeney did not have authority for purchases from funds out of a police emergency grant the
Borough had received. (Pl.’s Response ¶ 9.) He refers to Borough Secretary/Treasurer David Conoran’s testimony in
an Omnibus Hearing in the Armstrong County case, Commonwealth v. DeForte, No. CP-03-CR-0000184-2014, in
approved a recommended purchase. (Defs.’ SUMF, ¶ 10.) The Borough would maintain
ownership of any purchased firearms. (Defs.’ SUMF, ¶ 12.)4
DeForte used grant funds to purchase a lower assembly for an Armalite M15 (an AR-15
style rifle) for the Borough. (Defs.’ SUMF, ¶ 13.) Worthington Borough owned the lower
assembly. (Defs.’ SUMF, ¶ 14.) The Borough purchased the upper assembly for the M15 on
April 19, 2011. (Defs.’ SUMF, ¶ 15.)5
On May 31, 2012, DeForte drafted a document purporting to transfer ownership of the
assembled Armalite M15 to Rodgers upon his separation from the Department, provided that
Rodgers worked for the Department for twelve months. (Defs.’ SUMF, ¶ 19; Defs.’ Ex. F, (May
12, 2012 Memo.”)) DeForte presented this document to Feeney, who signed multiple copies of it.
(Defs.’ SUMF, ¶¶ 20 & 22.) At some point, Rodgers requested a receipt of purchase and DeForte
gave him the document. (Defs.’ SUMF, ¶ 21.)
iii. Prostitution Sting
In late August or early September, 2012, DeForte initiated a prostitution sting operation
in the Borough, targeting individuals attempting to solicit undercover officers. (Defs.’ SUMF, ¶
which Conoran said that “sometimes things didn’t always go through council,” implying that such exceptions went
through Feeney. (Omnibus Hg. Tr., at 37.) This difference is not material for purposes of summary judgment.
Plaintiff denies this statement on the basis that the Borough would maintain ownership of such firearms,
contending that “the Borough would act as a conduit, and . . . the equipment would always be in the possession of
the officers.” (Pl.’s Response ¶ 12.) He refers to Feeney’s testimony at the Omnibus Hearing that, when Plaintiff
attempted to start a SWAT Team in the Borough, the officers were told they could purchase their own rifles.
(Omnibus Hg. Tr., at 16–17.) This testimony does not create a dispute as to whether the Borough maintained
ownership of firearms the Police Department purchased. It also does not address why a one-square-mile borough of
fewer than 600 residents would have a need for its own SWAT Team.
Plaintiff denies that the Borough purchased the upper assembly, pointing to Conoran’s testimony that he did not
remember whether the Borough wrote a check for the Armalite AR-15. (Pl.’s Response, ¶ 15.) This testimony does
not establish a dispute as to whether the Borough purchased the assembly. Plaintiff’s SUMF at paragraph 14, in an
attempt to dispute whether the Borough purchased the upper, also cites to Plaintiff’s Exhibit 20.a, which is an
advertisement from a company called Quantico Tactical Supply and a blank firearms purchasing form. It does not
support Plaintiff’s statement that he purchased the upper. (See Pl.’s SUMF, ¶ 14.)
23.) Officers Nicole Traister and Evan Townsend helped DeForte execute the sting. (Defs.’
SUMF, ¶ 25.) Traister placed the money obtained from each sting operation in separate evidence
envelopes, which DeForte in turn placed in the Department’s evidence locker. (Defs.’ SUMF, ¶
26.) Apparently on DeForte’s orders, Traister did not identify the type of bills placed in the
envelopes. (Defs.’ SUMF, ¶ 27.)6 As Chief of Police, DeForte had the key to the evidence locker.
(Defs.’ SUMF, ¶ 28.) It is disputed whether Feeney, in his capacity as Mayor, had a second key
to the evidence locker. (Defs.’ SUMF, ¶ 28; Pl.’s Response ¶ 28.)7
iv. Pine Township Police Department
During his tenure at the Worthington PD, DeForte was also involved in attempting to get
a police department for Pine Township up and running. (Defs.’ SUMF, ¶ 29.) On October 10,
2012, DeForte advised the Worthington Borough Council that Pine Township was interested in
buying a 1998 Crown Victoria from the Borough, as a police car. (Defs.’ SUMF, ¶¶ 30–32.) The
Worthington Borough Council held discussion, noted that the Crown Victoria would need its
radio taken out before selling it, and then voted to authorize the sale of “the 1998 police car to
Pine Township as is for $1,000.00 and a hand held portable radio.” (Defs.’ SUMF, ¶¶ 31–32.)8
Plaintiff’s Response to this fact is simply “Denied.” without setting forth any basis for the denial with appropriate
reference to the record as required by Local Rule 56.1. This response is insufficient to create a factual dispute.
The PSP’s affidavit of probable cause states that “Mayor Feeney and Chief Rodgers advised that DeForte was the
only one with a key to the evidence locker.” (Defs.’ Ex. R, ECF No. 115–19, at 7.) In his deposition, Plaintiff
testified that he purchased the locker from a Blockbuster that was going out of business, and that the owner provided
one key, and then there was another key in an envelope taped inside the evidence locker. (Defs.’ Ex. A, ECF No.
115–2, at 52.) Plaintiff then said he made a copy of his key (not the one in the envelope) to Feeney. (Id.) Feeney
testified that he did not have a key to the evidence locker, and Rosen submitted an affidavit stating that he did not
have a key to the evidence locker. (Defs.’ Ex. B, ECF No. 115–3, at 34.) Borough Secretary Conoran testified in a
deposition in another case that Plaintiff and Feeney both had keys to the evidence locker. (Omnibus Hg. Tr., at 39.)
Plaintiff offers no explanation why, if Feeney had a key to the locker, he would have needed to cut the lock off of
the evidence locker, as Plaintiff claims he did. (Defs.’ Ex A, ECF No. 115–2.) Ultimately, this dispute comes down
to credibility and is not one for the Court to resolve, but it is immaterial in any event.
Plaintiff contends that Borough Council Secretary David Conoran later “corrected” the statement about one radio
to say that there were “two” radios to be sold. (Pl.’s Response ¶ 32.) He cites to Conoran’s testimony in the
Omnibus Hearing on November 3, 2014, where Conoran said it was his understanding that two radios were sold to
On October 15, 2012, DeForte then emailed the Pine Township Secretary, stating “[c]an you get
a check to Worthington Borough for $1000.00? I also obtained two radios, a brand new light bar
and front crash bar for free.” (Defs.’ SUMF, ¶ 33.)
On November 2, 2012, Pine Township’s Township Supervisor, Clyde Moore found two
Kenwood-brand radios with chargers that did not belong to Pine Township in the area designated
for the police department. (Defs.’ SUMF, ¶ 34.)9 He turned the radios over to the Pennsylvania
State Police, who placed them into evidence. (Defs.’ SUMF, ¶¶ 35–36.) Feeney identified the
two radios as belonging to Worthington Borough. (Defs.’ SUMF, ¶ 38.)10
Ten days later, on November 12, 2012, Pine Township’s Meeting Minutes reflected that
its fledgling police department had been disbanded, that “some of the officer[s] brought items
from Worthington Borough to Pine Township and were not authorized to do so,” and that “[t]he
items were given back to Worthington Borough and Clyde Moore met with the Pennsylvania
State Police regarding the stolen items.” (Defs.’ SUMF, ¶ 37.)
v. October 26, 2012
On October 26, 2012, the Borough held its annual Halloween parade. (Defs.’ SUMF, ¶
39.) Although police presence was expected, Feeney began to receive calls from Borough
residents wanting to know where the police officers were not at the parade. (Defs.’ SUMF, ¶
Pine Township. (Omnibus Hg. Tr., at 44.) This testimony from approximately two years later, does not create a
dispute as to the contents of the Council’s contemporaneous meeting minutes.
Plaintiff denies this statement on the basis that “Clyde Moore acted on information that Feeney provided.” (Pl.’s
Response, ¶ 34.) This contention does not create a factual dispute as to whether Clyde Moore found two radios that
he did not think belonged to Pine Township.
Plaintiff disputes this fact, stating that “Defendant Feeney promised two brand new radios to Pine Township, for
taking out the old radios from the vehicle sold to Pine Township.” (Pl.’s SUMF, ¶ 49.) However, Plaintiff’s record
citation for this assertion (Plaintiff’s Exhibit 8, page 186, lines 22–25) does not provide proper support because
Exhibit 8 does not have a page 186. Out of an abundance of caution, the Court has reviewed page 18 and page 16 of
the Exhibit, at ECF No. 124–21, and neither mentions any radios. Plaintiff has therefore not established a dispute of
41.)11 DeForte had attempted to organize a sit-out of the officers because he believed Feeney had
improperly taken the Department’s computer system. (Defs.’ SUMF, ¶ 42.)
Feeney arrived at the Department at approximately 7:30 p.m., but DeForte would not
address his concerns about the lack of police presence at the parade. (Defs.’ SUMF, ¶ 43–44.)
Feeney then suspended DeForte for neglect of duty, until the Borough Council meeting
scheduled for November 5, 2012. (Defs.’ SUMF, ¶ 45.)12 DeForte left, taking a number of items,
including gun cases, a TV, a Blu-Ray player, a surround-sound system, his JNET log and
logbook, and other items. (Defs.’ SUMF, ¶ 46; Defs.’ Ex. A, ECF No. 115–2, DeForte Dep., at
58; Pl.’s Response ¶ 46.)13 DeForte was terminated as Chief of Police at the November 5, 2012,
Council Meeting. (Defs.’ SUMF, ¶ 47.)
vi. Evan Townsend
DeForte spoke to Borough Officer Evan Townsend after he was suspended and told
Townsend what happened. (Defs.’ SUMF, ¶ 48.) Townsend, thinking he would also be fired,
went to the Department at approximately 2:00 a.m. on October 28, 2012, to return his rifle and
Taser and to pick up personal items belonging to him and DeForte. (Defs.’ SUMF, ¶ 49.)
Townsend opened the gun safe to return his rifle (another Armalite M15 rifle, property of
Worthington Borough) and Taser. (Defs.’ SUMF, ¶ 51.)14 DeForte had told him to put the rifle
Plaintiff denies this statement on the basis that “Plaintiff did not witness phone calls by Borough residents” and
that he had provided patrols for the parade. (Pl.’s Response, ¶ 41.) This contention is unresponsive to whether
Feeney received phone calls from Borough residents.
Plaintiff’s denial is not responsive to the fact that Feeney suspended DeForte.
Plaintiff contends that Feeney “intercepted” and “retained” other personal belongings of his, but cites only to his
own deposition testimony from another case that “the rest of my stuff never made it [to Pine Township].” (Pl.’s Ex.
6.1, ECF No. 124–15, at 46.) This citation does not suffice to create a material dispute of fact.
Plaintiff denies the factual statements in Defendants’ SUMF at paragraphs 50–52, 61, 64–68, 72–76, 80–82, 85–
90, 93–95, 104, 116, 119, 151–52, 154, 156–57, 162, 164–65, 167, 169–171, 179–80, 183–87, and 195–97, solely
on the basis that “Plaintiff was not present” during the events described and “has no knowledge as to the accuracy of
these alleged statements,” or “cannot physically confirm or deny” what happened, or statements along similar lines.
back in the safe. (Defs.’ SUMF, ¶ 53.) The gun safe was accessible to anyone in the Department,
as well as Borough Secretary David Conoran. (Defs.’ SUMF, ¶ 54.)
Townsend removed a plastic “mailbox” containing court documents for all Borough
police officers. (Defs.’ SUMF, ¶ 56.) Townsend took photographs15 of the gun safe’s interior.
(Defs.’ SUMF, ¶ 57.) He also photographed the evidence locker and other miscellaneous items
taken from the department. (Defs.’ SUMF, ¶ 58.) Townsend’s photograph of the gun safe,
reproduced below, shows an unidentified folder in the lower righthand corner. (Defs.’ SUMF,
¶ 60; Exhibit M, ECF No. 108–14.)
Besides not complying with Local Rule 56.1’s requirement that any denial include a citation to the record, these
denials appear to misconstrue the very purpose of a response to a statement of material fact, namely, to say why that
fact is incorrect or disputed. It does not matter whether Plaintiff himself was physically present for the events at
issue in the case. What matters is whether there is sufficient doubt as to a material fact to permit it to go to the
jury—that is, can reasonable people differ as to the significance of the fact, or is the evidence subject to conflicting
interpretations? Plaintiff’s blanket denials, presented without support from the record, do not establish a dispute as
to these facts.
It is disputed whether Plaintiff told Townsend to take photographs. Although this fact bears on the overall piscine
nature of the events of the wee hours of October 28, 2012, this dispute is ultimately immaterial.
vii. Suspicions of a Break-in at the Police Department
Rodgers arrived at the Department in the morning of Sunday, October 28, 2012, to
prepare for court on Monday morning. (Defs.’ SUMF, ¶ 61.) He noticed the mailbox was
missing, as well as a bank of radios. (Defs.’ SUMF, ¶ 62–63.) He called Feeney to inform him of
the missing items. (Defs.’ SUMF, ¶ 64.) Feeney arrived and observed that filing cabinet drawers
were out and personal lockers were open. (Defs.’ SUMF, ¶ 65–66.) The gun safe and the
evidence locker were both locked. (Defs.’ SUMF, ¶ 67–68.) Feeney and Rosen did not take any
photographs at the Department on October 28, 2012. (Defs.’ SUMF, ¶ 83.)16 On October 29,
2012, DeForte brought a Borough laptop and power cord to the PSP barracks. (Defs.’ SUMF, ¶
On the morning of October 31, 2012, more suspicious changes were discovered. (Defs.’
SUMF, ¶ 71.) The window in the Borough meeting room appeared to have been tampered with
and there was a foot path in the grass leading to the window. (Defs.’ SUMF, ¶ 71.) Inside the
building, additional evidence property inventory sheets from 2012 with DeForte’s name on them
had been added to the property log book, a body armor carrier had been returned, and additional
personal files belonging to DeForte and Townsend had been removed. (Defs.’ SUMF, ¶ 71.)
Plaintiff contends that Rodgers and Feeney cut off the locks from all of the lockers and cabinets in the
Worthington municipal building, (Pl.’s SUMF, ¶ 85,) and took photographs of the open lockers, gun safe, and police
department, (Id. ¶ 86.) However, the photographs to which Plaintiff refers, at Exhibits 14.b, 14.c, 14.d, 14.e, 14.f,
and 14.g, are all photographs taken by Barry Rosen on November 28, 2012, during Detective Davis’s inventory of
the Department. Furthermore, Plaintiff’s citation to Borough Secretary David Conoran’s testimony in another matter
that when he went to work that Monday locks had been cut off of some police lockers, does not establish that
Rodgers or Feeney cut off any locks. His testimony that he had been told Feeney and Rosen cut the locks off, (see
Pl.’s Ex. 4, 12:14–22,) is hearsay testimony not fitting within any exception listed in the Federal Rules of Evidence,
and the Court therefore will not consider it for purposes of summary judgment. See Shelton v. Univ. of Med. &
Dentistry of N.J., 223 F.3d 220, 223 n.2 (3d Cir. 2000).
viii. Pennsylvania State Police and Armstrong County District Attorney
On October 28, 2012, Defendant Corporal Zandarski took a call from Worthington
Borough reporting suspicious activity at the Department. (Defs.’ SUMF, ¶ 72.) Zandarski, a
stranger to the Borough, went to the Department and met with Feeney, Rosen, and Rodgers.
(Defs.’ SUMF, ¶ 73.) They informed him that property was missing from the Department.
(Defs.’ SUMF, ¶ 74.) Zandarski advised the Borough officials to consult with the District
Attorney to conduct an inventory, and told them that the State Police would not involve
themselves with that process. (Defs.’ SUMF, ¶ 76.)
Feeney then left a voicemail for DeForte, telling him to return the missing property.
(Defs.’ SUMF, ¶ 77.) Rodgers requested that DeForte meet Feeney and Rodgers at the
Pennsylvania State Police to return missing property and the evidence locker key. (Defs.’ SUMF,
¶ 78.) Plaintiff met Rodgers at PSP Kittanning and provided court hearing notices, a Borough
speed timing device, and the key. (Defs.’ SUMF, ¶ 79.) Feeney and Rodgers then placed a
second lock and evidence tape on the evidence locker. (Defs.’ SUMF, ¶ 80.) The keys to the first
and second locks were maintained by two different people. (Defs.’ SUMF, ¶ 81.) The Borough
began to inventory the Department’s equipment, which they completed on Tuesday, October 30,
2012, in the evening. (Defs.’ SUMF, ¶ 82.) Zandarski briefed his supervisor, Corporal Murphy,
on the matter on October 29, 2012. (Defs.’ SUMF, ¶ 85.)
The Armstrong County District Attorney’s Office asked Detective Roberta Davis to take
an inventory of the Worthington PD evidence locker. (Defs.’ SUMF, ¶ 86.) On November 28,
2012, Detective Davis met Rosen and Rodgers at the Department to conduct the inventory.
(Defs.’ SUMF, ¶ 87.) As noted above, the locker had been locked with two locks and wrapped in
evidence tape. (Defs.’ SUMF, ¶ 88.)
Detective Davis created a log of the contents and had them photographed. (Defs.’
SUMF, ¶ 89.)17 This inventory included a review of, and photography of, the contents of the
evidence envelopes from the prostitution stings. (Defs.’ SUMF, ¶ 90, 92.) The inventory revealed
that $540 was missing from the prostitution sting evidence envelopes. (Defs.’ SUMF, ¶ 91.) At
Detective Davis’s direction, Rosen also photographed all items contained in the evidence locker
and the gun safe. (Defs.’ SUMF, ¶ 93.) This was the only time the evidence locker was opened
during the time period at issue. (Defs.’ SUMF, ¶ 95.) The photograph Rosen took of the gun safe
is reproduced below. (Defs.’ Ex. CC, ECF No. 108–30, at 2.)
Plaintiff claims that “most every adjudicated prostitution file that was stored in the gun safe, migrated to the
evidence locker prior to or during Robert Davis’s inventory.” (Pl.’s SUMF, ¶ 100.) Plaintiff only cites to his
“Exhibit 27,” which has never been filed with the Court and does not appear in Plaintiff’s Exhibit Index. This
assertion does not create a factual dispute.
After Corporal Zandarski opened the PSP investigation on October 28, 2012, Corporal
Joseph Murphy (Zandarski’s supervisor) handled the investigation beginning on November 1,
2012. (Defs.’ SUMF, ¶ 96.) After Murphy retired in April, 2013, Zandarski again took over the
investigation. (Defs.’ SUMF, ¶ 97.)
During the course of the investigation, Murphy learned that DeForte arranged for
multiple assault rifle and other weapons purchases through the Borough with payment made
privately either by him or other part-time Borough police officers. (Defs.’ SUMF, ¶ 98.)18
DeForte also claimed to have donated expensive firearms to the Borough. (Defs.’ SUMF, ¶ 99.)
DeForte had told Feeney in 2011 that he wanted to start a Borough SWAT Team and wanted to
purchase rifles, including Sig Sauer rifles, for the officers to complete SWAT training in
Pittsburgh. (Defs.’ SUMF, ¶ 100.) Feeney told Murphy he agreed to the purchase of the rifles in
2011 because it would not cost the Borough any money. (Defs.’ SUMF, ¶ 102.)
Corporal Murphy spoke to representatives from Sig Sauer’s Law Enforcement Sales
Department, who related that Sig Sauer sold two 5.56 short barrel rifles to the Borough in late
2011. (Defs.’ SUMF, ¶ 103.) DeForte had sent Sig Sauer a letter confirming the rifles were for
official use and not for resale. (Defs.’ SUMF, ¶ 103.) Payment was made by two money orders in
2012, and DeForte paid the balance on the rifles after the PSP investigation began. (Defs.’
SUMF, ¶ 103.) Sig Sauer sold the Borough three more 5.56 short barrel rifles in May, 2012.
(Defs.’ SUMF, ¶ 103.) Sig Sauer advised that the Borough purchased these rifles on a “trade
agreement” for two used Sig Sauer 551A1 rifles, which DeForte had purchased personally and
donated to the Borough. (Defs.’ SUMF, ¶ 103.) DeForte had begun efforts to transfer all three of
Plaintiff denies this statement on the basis that he was given approval by Borough Council and Feeney to purchase
personal items through the Borough. (Pl.’s Response, ¶ 98.) This assertion, whatever its validity, does not respond to
whether Murphy learned of an arrangement to buy firearms through the Borough with private payment, and does not
create a genuine dispute of material fact.
the new 2012 rifles to Chris Burns, owner of C&G Arms, but the transfer was terminated after
the PSP began its investigation. (Defs.’ SUMF, ¶ 103.)19
One of the 2011 rifles was found in the Borough gun safe and the other, initially thought
to be missing, was found at C&G Arms. (Defs.’ SUMF, ¶ 103.) Corporal Murphy interviewed
numerous people, including representatives from Sig Sauer, former Worthington PD Officers,
and Chris Burns, in an attempt to confirm and follow the Borough firearms purchases arranged
by DeForte, as well as his efforts to donate or trade rifles. (Defs.’ SUMF, ¶ 104.) Murphy and
Zandarski had never seen a situation where a municipality permitted officers to purchase assault
weapons through the Borough or the official Police Department account, or where a municipality
purchased firearms and then gifted them to officers after a certain length of service. (Defs.’
SUMF, ¶ 106.)20 Nor had they encountered a situation where an officer donated firearms worth
thousands of dollars to a police department. (Defs.’ SUMF, ¶ 107.)
During the investigation, the PSP discovered that DeForte would prepare memos for
Feeney to sign that purported to approve transfers of firearms to the individual officer, who
would own the weapon at some point. (Defs.’ SUMF, ¶ 108.) Feeney indicated that he trusted
DeForte and would sign documents presented to him without knowing what he was signing.
(Defs.’ SUMF, ¶ 109.) Zandarski described the May 31, 2012 memo (which purported to transfer
ownership of an Armalite M15 rifle from the Borough to Rodgers) as “absurd” and testified that
he had “never heard of such a thing.” (Defs.’ SUMF, ¶ 110.)
Plaintiff denies this statement on the basis that “all three 5.56 rifles were in the gun safe as of November 5, 2012,”
(Pl.’s Response, ¶ 103,) a fact that is not in dispute. That may be so, but it does not bear on whether Plaintiff had
begun the process of transferring the weapons to C&G Arms.
Plaintiff denies the statements about the PSP Officers’ reaction to the firearms transfers on the basis that all
transfers were accounted for and approved by the memo signed by Feeney. That may be the case, but it does not
create a dispute as to whether Zandarski and Murphy thought the transactions were unusual. The Court notes, but
does not need to decide here whether Plaintiff’s statements in this regard would be evidence of his participation in a
scheme to make and/or facilitate “straw purchases” of firearms in violation of federal firearms laws.
Zandarski also took steps to investigate a possible forgery charge in connection with
Feeney’s signature on the Borough documents prepared by DeForte. (Defs.’ SUMF, ¶ 113.) On
July 1, 2013, Zandarski sent multiple documents with Feeney’s signature to the PSP Document
Examination Lab in Harrisburg for analysis. (Defs.’ SUMF, ¶ 114.) On November 20, 2013, the
Lab concluded that the Feeney signatures were genuine. (Defs.’ SUMF, ¶ 116.) Feeney
contended that whether he or not he signed them, he did not approve of the memos. (Defs.’
SUMF, ¶ 117.)
The PSP also investigated the two (2) portable radios found at Pine Township. (Defs.’
SUMF, ¶ 119–22.) Clyde Moore from Pine Township had turned over two Kenwood Radios that
did not belong to Pine Township, and Feeney identified them as belonging to Worthington
Borough. (Defs.’ SUMF, ¶ 120.) Pine Township documents obtained by Murphy included the
October 15, 2012, email from DeForte telling the Pine Township secretary that he had obtained
“two radios.” (Defs.’ SUMF, ¶ 122.)21
The PSP also investigated DeForte’s transfer of an Armalite M15 to Rodgers. In 2011,
DeForte sold Rodgers an MSAR – STG 5.56 rifle for $1500. (Defs.’ SUMF, ¶ 123.) Rodgers
paid DeForte $500 by check and the rest in cash. (Defs.’ SUMF, ¶ 124.) Rodgers thought the
STG 5.56 would not fire properly and asked DeForte for a different gun. (Defs.’ SUMF, ¶ 125.)
DeForte took the STG back from Rodgers and re-sold it to Shane Bracken, a Constable of
Kittanning Township. (Defs.’ SUMF, ¶ 126.) DeForte then gave Rodgers his own rifle, an
Armalite M15 which had a lower assembly with serial No. US 350432 and upper assembly and
scope. (Defs.’ SUMF, ¶ 127.) Rodgers believed this was DeForte’s personal rifle because he
Plaintiff avers that Worthington Borough has never had Kenwood Radios, and has exclusively used Motorola
radios. (Pl.’s SUMF, ¶ 66.) He cites to his Exhibit 15.l, ECF No. 124–61, which is an invoice for a purchase of
radios by the Department in 2008. This Exhibit does not support Plaintiff’s contention that the Department never
had Kenwood Radios.
always had the rifle with him. (Defs.’ SUMF, ¶ 128.) However, the PSP investigation revealed
that Worthington Borough had purchased the Armalite lower assembly in 2010 with a federal
grant check. In 2011, the Borough also purchased an upper receiver (which does not have a serial
number) for an Armalite M15 rifle. (Defs.’ SUMF, ¶ 130.)22
As Rodgers and the Borough officials began to inventory weapons and Borough property
on October 28, 2012, Rodgers realized that the Borough’s missing Armalite rifle was the same
rifle DeForte had sold him. (Defs.’ SUMF, ¶ 132.)23 He turned it over to the PSP a few days
later. (Defs.’ SUMF, ¶ 133.) DeForte had also attempted to sell this rifle to Traister. (Defs.’
SUMF, ¶ 135.) The only missing weapon that could be traced to a direct purchase by the
Borough, using Borough or federal grant funds, was the Armalite rifle with lower assembly serial
No. US 350432. (Defs.’ SUMF, ¶ 134.)
Townsend testified that he had no knowledge as to who may have removed money from
the evidence envelopes in the evidence locker. (Defs.’ SUMF, ¶ 136.) He never witnessed
anyone plant or falsify evidence at the Department. (Defs.’ SUMF, ¶ 137.) When interviewed by
Corporal Murphy, DeForte said the last time he was in the locker was when he returned money
to a third party on an unrelated case, which would have been documented in the log. (Defs.’
SUMF, ¶ 139.) DeForte admitted that the prostitution sting cases had pled out, and the money
was to be returned to the accused, but he had not returned any of it. (Defs.’ SUMF, ¶ 141.) The
Plaintiff denies this statement on the grounds that a Worthington Borough check with number 94586 has not been
produced. This check number comes from the PSP Incident Report, Defs.’ Ex. G, ECF No. 115–8, at 8, and other
than his own ungrounded say-so, Plaintiff has offered no evidence that this statement in the Report is factually
incorrect or in dispute.
Plaintiff denies this statement, saying that Rodgers “always knew” that the rifle was Borough property, but his
citation to Shane Bracken’s affidavit stating that Rodgers wanted a receipt showing transfer of the lower, (Pl.’s Ex.
22, ECF No. 124–95, at 2,) and Evan Townsend’s affidavit stating that Feeney told DeForte to “Make sure Rodgers
gets his letter,” which is a hearsay statement and therefore not properly considered on summary judgment, do not
establish a dispute of fact as to whether Rodgers knew the lower belonged to the Borough.
PSP discovered that the prostitution sting cases had been disposed of before the District
Magistrate. (Defs.’ SUMF, ¶ 147.) When Rodgers contacted some of the defendants, they
confirmed the money had not been returned to them. (Defs.’ SUMF, ¶ 147.)
After taking over the investigation in mid-2013, Zandarski also interviewed Officer
Traister, who said that while processing the money evidence from the prostitution sting, DeForte
told her to write an undetermined amount on the evidence envelope, not a breakdown of the
money received (as she had been doing). (Defs.’ SUMF, ¶ 143.) Traister felt uncomfortable
about this idea, and entered a total without giving a breakdown of denominations. (Defs.’ SUMF,
Worthington Borough officials advised the PSP that DeForte was the only custodian of
the evidence locker and the only person who had a key to it. (Defs.’ SUMF, ¶ 148.) The PSP was
also told that any money, guns, drugs, or other property seized in any incident would be
exclusively kept in the evidence locker. (Defs.’ SUMF, ¶ 149.)
Based on the evidence and investigation, Murphy believed there was sufficient support
for charges against DeForte, including theft of Borough property. (Defs.’ SUMF, ¶ 150.) Murphy
met with the District Attorney (“DA”) on March 15, 2013, and presented his investigation, and
the DA said he would consider if there was enough evidence for charges and update the offices.
(Defs.’ SUMF, ¶ 151.)
Murphy recalled that during his interview with Townsend, Townsend mentioned taking
photographs when he went to the police station in the wee hours of October 28, 2012. Murphy
could not remember whether Townsend actually sent him copies of the photographs, but said that
Plaintiff denies this statement, saying that “[t]he hand writing on the outside of the prostitution sting envelopes is
that of the Plaintiff’s and/or Townsend’s,” and cites to what appear to be copies of the envelopes. (Pl.’s Response, ¶
144.) The Court is not in a position to conduct a handwriting analysis, and whether Traister or some other party
wrote the amounts does not create a material factual dispute.
if he did, he did not print or keep them because they were not significant. (Defs.’ SUMF, ¶ 155.)
At any rate, Murphy’s concern when interviewing Townsend was ensuring PSP could identify
and locate all the pertinent weapons. (Defs.’ SUMF, ¶ 156.) Murphy went to the Department on
November 5, 2012, and was able to confirm that the rifle Townsend described was in the gun
safe. (Defs.’ SUMF, ¶ 157.) No one, including Townsend or DeForte, had suggested to Murphy
that there was money or evidence envelopes in the gun safe (as opposed to the evidence
locker).25 (Defs.’ SUMF, ¶ 160.) Looking at Townsend’s gun safe photograph (reproduced
above) in 2018, Murphy stated that he only noticed a relatively thin manila folder which does not
appear to contain evidence envelopes or money. (Defs.’ SUMF, ¶ 161.)26
On November 4, 2013, a Detective Belliveau from the University of Massachusetts
contacted Corporal Zandarski and reported that he had arrested DeForte at the University for
felony weapons violations and living in an unauthorized location on campus. (Defs.’ SUMF,
¶ 162.) Belliveau reported that DeForte was interviewed and said that he was in law school and
was also a police officer in Pennsylvania. (Defs.’ SUMF, ¶ 163.) Zandarski advised Belliveau
that the PSP was investigating DeForte regarding a forgery complaint by Worthington Borough.
(Defs.’ SUMF, ¶ 166.) Zandarski also learned of criminal charges that Allegheny County was
pursuing against DeForte. (Defs.’ SUMF, ¶ 168.)
In his affidavit, Townsend said that he informed the PSP in early November 2012 that the adjudicated prostitution
files were in an accordion folder located inside the gun safe. (Pl.’s Amended Ex. 23, ECF No. 148, at 2.) However,
this affidavit conflicts with Townsend’s previous sworn deposition testimony that he “couldn’t even really
remember” his interview with Corporal Murphy, beyond the fact that he told Murphy about the photographs he had
taken and that the Borough “was a bad environment.” (Pl.’s Ex. 10, ECF No. 124–23, at 28.) Townsend also
confirmed that at the time of the interview, Murphy told him the focus was on “the rifles.” (Id.) The Court will
disregard Townsend’s affidavit because it contradicts his earlier deposition testimony without providing a plausible
explanation for the conflict. See Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). Plaintiff cannot create a material
issue of fact on this basis.
Plaintiff denies this statement because “[i]t is obvious to any objective view that the accordion folder is full of
documents. The picture speaks for itself.” (Pl.’s Response, ¶ 161.) The Court concludes that no reasonable factfinder
could view this photograph and identify an accordion folder, let alone an accordion folder “full of documents.” At
any rate, Plaintiff’s averment does not create a material dispute as to what Murphy saw when looking at the
On December 4, 2013, Zandarski, who had since transferred to the PSP Butler Barracks,
met with Lieutenant Dubovi, in charge of the Kittanning Crime Unit, and the Armstrong County
DA to discuss DeForte’s case. (Defs.’ SUMF, ¶ 170.) In particular, Zandarski told the DA that he
had verbal assurance that the portable radios found at Pine Township belonged to Worthington
Borough and that Borough officials were looking for proof of purchase. (Defs.’ SUMF, ¶ 178.)
Zandarski also discussed DeForte’s May 13, 2012, memo dealing with the Armalite rifle sold to
Rodgers. (Defs.’ SUMF, ¶ 179.) The DA agreed that the memo was suspicious and did not make
sense. (Defs.’ SUMF, ¶ 180.)
Upon review of all aspects of the investigation, the DA told them which charges he
approved and instructed Zandarski to file those charges. (Defs.’ SUMF, ¶ 172.) Several things
that Zandarski, Dubovi, and the DA discussed were not included in the criminal complaint,
which was issued on January 16, 2014. (Defs.’ SUMF, ¶¶ 173–74.) Feeney and Rodgers were
not part of the meeting in deciding whether to bring charges against DeForte, and did not play a
role in reviewing or approving the charges. (Defs.’ SUMF, ¶ 181.)
The criminal complaint against DeForte asserted five (5) criminal counts: (1) Theft by
Unlawful Taking (AR-15); (2) Theft by Deception (AR-15); (3) Receiving Stolen Property (AR15); (4) Theft by Unlawful Taking (Money and Radios); and (5) Receiving Stolen Property
(Money and Radios). (Defs.’ SUMF, ¶ 175.) These charges concerned the alleged theft of the
Armalite rifle, the two (2) portable radios found at Pine Township, and the missing prostitution
sting money. (Defs.’ SUMF, ¶ 177.) The Affidavit of Probable Cause was executed by Zandarski
and approved by District Attorney Scott Andreassi. (Defs.’ SUMF, ¶ 176.)
In formulating the charges, Zandarski relied upon Detective Davis’s inventory, which she
had provided to Corporal Murphy. (Defs.’ SUMF, ¶ 182.) Because Murphy had not entered the
photographs taken by Townsend into evidence, Zandarski did not see the photographs. (Defs.’
SUMF, ¶ 183.) Zandarski recalled that Murphy mentioned that Townsend had photos of guns in
the Department’s gun safe, but that Murphy thought the photos were insignificant. (Defs.’
SUMF, ¶ 184.)
Zandarski also followed up on accusations that DeForte had made against others during
his earlier interview with Murphy. (Defs.’ SUMF, ¶ 185.) Zandarski spoke with several
individuals, including the Worthington Fire Department’s President, about DeForte’s claim that
Feeney stole radios from the Fire Department. (Defs.’ SUMF, ¶ 186.) The Fire Department
President, Dewey Stewart, described the claim as absurd, and said that he knew where the radios
were and allowed Feeney to borrow them. (Defs.’ SUMF, ¶ 187.)
On February 26, 2014, a Preliminary Hearing was held in DeForte’s criminal case, and
all charges were bound over for court. (Defs.’ SUMF, ¶ 189.) Rodgers, Zandarski, and Detective
Davis all testified at the Hearing. (Defs.’ SUMF, ¶ 193.) An omnibus hearing scheduled for July
17, 2014, was continued until August 19, 2014. (Defs.’ SUMF, ¶ 190.) In January of 2015,
Trooper Geibel from the PSP Kittanning Barracks contacted DeForte’s counsel to have DeForte
come in for fingerprinting, as he had never been processed on the pending charges. (Defs.’
SUMF, ¶ 191.) DeForte refused, and was never processed. (Defs.’ SUMF, ¶ 192.)
In August, 2015, all criminal charges against DeForte were nolle prossed. (Defs.’ SUMF,
ix. Corporal Zandarski’s Supplemental Employment with Rodgers’s
Corporal Zandarski had an educational background in forestry, and began performing
independent contract work as a Forester for Rodgers’s logging business in August or September
of 2014. (Defs.’ SUMF, ¶ 195.) Zandarski applied with PSP to approve this supplemental
employment in June of 2014. (Defs.’ SUMF, ¶ 196.) When Zandarski began working for
Rodgers’s business, the investigation of DeForte had been over for six (6) to seven (7) months.
(Defs.’ SUMF, ¶ 197.)
Plaintiff initiated this civil action at Docket Number 2:16-cv-0067 on January 14, 2016,
bringing claims under 42 U.S.C. §§ 1983, 1985, 1986, 1988, and the Fourth and Fourteenth
Amendments to the Constitution, as well as state law tort claims for malicious prosecution, abuse
of process, and intentional infliction of emotional distress against Worthington Borough, Feeney,
and Rodgers. (Complaint (“Compl.”), ECF No. 1.) In separate litigation in this Court at Docket
Number 2:16-cv-113, Plaintiff brought the same set of claims against Corporal Zandarski. (See
Complaint, ECF No. 1, at Docket 2:16-cv-113.) The Court consolidated these cases on August
22, 2017. (Order of Consolidation, ECF No. 45.)
In the case against Zandarski, the Court granted in part and denied in part Zandarski’s
Motion to Dismiss, dismissing all of Plaintiff’s federal claims against Zandarski in his official
capacity, all of his individual-capacity claims against Zandarski brought under 42 U.S.C.
§§ 1985 and 1986, his malicious prosecution claim, and his abuse of process claim. (Order, ECF
No. 13, Docket 2:16-cv-113.) The Court denied the Motion as to Plaintiff’s Fourteenth
Amendment fabrication-of-evidence claim and his state tort claims for malicious prosecution and
intentional infliction of emotional distress. (Opinion, ECF No. 12, at 19–21, 25–26.)
In the case against the Borough, Rodgers, and Feeney, the Court granted in part and
denied in part their motions to dismiss, dismissing all of Plaintiff’s claims against Worthington
Borough, dismissing Plaintiff’s official-capacity claims against Feeney and Rodgers, dismissing
Plaintiff’s individual-capacity claims against Feeney and Rodgers brought under 42 U.S.C.
§§ 1985 and 1986, dismissing his abuse-of-process claims against Feeney and Rodgers, and
dismissing the state-law claims against Feeney. (Order, ECF No. 31.) The Court denied the
Motion as to Plaintiff’s Fourteenth Amendment fabrication-of-evidence claim against Feeney
and Rodgers and his state tort claims for malicious prosecution and intentional infliction of
emotional distress against Rodgers.
Defendants filed Motions for Summary Judgment (ECF Nos. 116, 117, 118) and briefs in
support therein. Plaintiff filed Briefs in Opposition (ECF Nos. 127, 131, 132). Defendants filed
Reply Briefs (ECF Nos. 134, 136, 138) as authorized by the Court’s summary judgment
scheduling order. Plaintiff filed sur-replies without leave of Court, at ECF Nos. 141, 142, and
143, in violation of the Court’s Standing Order on Civil Motions Practice. Defendants filed a
Joint Motion to Strike the sur-reply briefs, at ECF No. 149. That Motion will be granted, and the
Court has not relied on any of the sur-reply briefing.27 On November 26, 2018, the Court held
Oral Argument on the Defendants’ Motions for Summary Judgment. These motions are ripe for
STANDARD ON SUMMARY JUDGMENT
Summary judgment is appropriate when “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); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The parties must support their position by “citing
to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
The Court’s review of these documents reveals that they consist of rehashes of Plaintiff’s arguments, his
unsubstantiated assertions of fact without record evidence, or some combination of those things. In any event, they
add nothing to the analysis of the issues before the Court.
Once that burden has been met, the non-moving party must set forth “specific facts
showing that there is a genuine issue for trial,” or the factual record will be taken as presented by
the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed. R. Civ. P. 56(a) & (e)). To meet its
burden, the “opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita, 475 U.S. at 586. The non-moving party “must present
affirmative evidence in order to defeat a properly supported motion” and cannot “simply reassert
factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d
Cir. 1989). Moreover, a party’s labelling or characterizing a fact as “disputed” does not make it
so—the record evidence the opposing party points to must support the dispute of fact, whether
through reasonable inference or otherwise. If the non-moving party’s evidence merely is
colorable or lacks sufficient probative force, summary judgment must be granted. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 249–50 (1986).
In other words, summary judgment may be granted only if there exists no genuine issue
of material fact that would permit a reasonable jury to find for the nonmoving party. See id. at
250. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587; Huston v.
Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).
In reviewing the record evidence, the court draws all reasonable inferences in favor of the
non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
“The line between reasonable inferences and impermissible speculation is often ‘thin,’ Fragale
& Sons Beverage Co. v. Dill, 760 F.2d 469, 474 (3d Cir. 1985), but nevertheless is critical
because ‘an inference based upon a speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.’” Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014) (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990)). Any
inference must follow directly from admissible evidence. See Anderson, 477 U.S. at 255.
It is not the court’s role to weigh the disputed evidence and decide which is more
probative, or to make credibility determinations. See id.; Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004). Although summary judgment may be granted based on affidavits,
conflicts of credibility should not be resolved on a motion for summary judgment unless the
opponent’s evidence is “too incredible to be believed by reasonable minds.” Losch v. Borough of
Parkesburg., 736 F.2d 903, 909 (3d Cir. 1984) (quoting 6 Moore’s Fed. Prac. ¶ 56.14(4)). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48. “Where the
defendant is the moving party, the initial burden is on the defendant to show that the plaintiff has
failed to establish one or more essential elements to his case.” See Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 589 (3d Cir. 2005) (citing Celotex Corp., 477 U.S. at 323–24).
Defendants aver that they are entitled to summary judgment in their favor because they
are entitled to judgment as a matter of law, and because no material issues of fact remain as to
the remaining claims in Plaintiff’s Complaints in the two consolidated cases (16-cv-67 and 16cv-113): Count I, violation of the Fourteenth Amendment, against all Defendants in their
individual capacities; Count II, malicious prosecution, against Rodgers and Zandarski; and Count
IV, intentional infliction of emotional distress, against Rodgers and Zandarski. Plaintiff argues
that summary judgment should not be granted because a number of material factual disputes
remain. For the reasons that follow, the Court will grant Defendants’ Motions for Summary
Judgment in their entirety.
A. Fabrication of Evidence
Plaintiff has alleged in Count I that Feeney and Rodgers staged a bogus theft of cash,
guns, and radios in order to frame Plaintiff for the thefts and cause baseless state criminal
charges to be filed against him, and that Zandarski manipulated the evidence and filed false
criminal charges to cover up for Feeney and Rodgers’s alleged crimes. Defendants have raised
various arguments as to why summary judgment should be granted in their favor on this Count,
chiefly that the claim fails on the merits, and that they are entitled to Qualified Immunity. The
Court concludes that Defendants are entitled to Qualified Immunity because even though
Plaintiff’s Constitutional fabrication-of-evidence claim was available as of 2012, Plaintiff cannot
establish that he was deprived of a protected life, liberty, or property interest. Plaintiff’s failure to
establish that he was deprived of life, liberty, or property also dooms his Fourteenth Amendment
claim on the merits.
The affirmative defense of qualified immunity “shield[s] officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). To overcome that immunity, a plaintiff must show (1) the violation of a
constitutional right and (2) that the right was clearly established at the time of the alleged
misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). A court may address these two prongs in
either order, depending on a given case’s circumstances. Pearson, 555 U.S. at 236. A
government official’s conduct violates clearly established law when, at the time of the
challenged conduct, every reasonable official would understand that her actions violated the right
alleged. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). To be clearly established, a right’s
contours must be “sufficiently definite that any reasonable official in the defendant’s shoes
would have understood that he was violating it” and that “existing precedent . . . placed the
statutory or constitutional question confronted by the official beyond debate.” Plumhoff v.
Rickard, 572 U.S. 765, 778–79 (2014) (quoting al-Kidd, 563 U.S. at 741). Moreover, “clearly
established law should not be defined at a high level of generality” but must instead “be
particularized to the facts of the case.” White v. Pauly, 137 S.Ct. 548, 552, 196 L.Ed.2d 463
(2017) (per curiam) (citation omitted).
But “qualified immunity applies regardless of whether the government official’s conduct
results from a mistake of law, mistake of fact, or mistake based on mixed questions of law and
fact.” Pearson, 555 U.S. at 231 (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (internal
quotation marks omitted)). The doctrine is designed to “give government officials breathing
room to make reasonable but mistaken judgments by protect[ing] all but the plainly incompetent
or those who knowingly violate the law.” City & Cty. of San Francisco v. Sheehan, 135 S. Ct.
1765, 1774 (2015) (quoting al-Kidd, 131 S. Ct. at 2074). As explained below, Defendants are
entitled to Qualified Immunity and to summary judgment on the merits, because even though
Plaintiff’s right not to be charged based on fabricated evidence was clearly established as of
2012, he cannot show that he was deprived of a constitutionally protected life, liberty, or
i. Whether a Claim for Fabrication of Evidence was Clearly Established
“To be clearly established, the very action in question need not have previously been held
unlawful.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 993 (3d Cir. 2014). Rather, the
“contours of the right” must be sufficiently clear that the unlawfulness of the action would be
apparent in light of pre-existing law. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The
Supreme Court has provided the guiding premise that “a legal principle must have a sufficiently
clear foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. The rule must be “settled
law,” which means it is dictated by “controlling authority” or “a robust consensus of cases of
persuasive authority.” Id. at 589–90 (quoting al-Kidd, 563 U.S. at 741–42 (internal quotation
marks omitted)). “It is not enough that the rule is suggested by then-existing precedent.” Id. at
590. “The precedent must be clear enough that every reasonable official would interpret it to
establish the particular rule the plaintiff seeks to apply.” Id.
Defendants contend that the right to be free from a due process violation based on
fabrication of evidence was not clearly established in the fall of 2012, when the events giving
rise to Plaintiff’s Complaint took place. That is because the Third Circuit did not recognize a
Fourteenth Amendment fabrication-of-evidence claim until April of 2014, in Halsey v. Pfeiffer,
750 F.3d 273 (2014). Plaintiff, in response, points to four Supreme Court cases pre-dating 2012,
that he avers clearly established the right: Brady v. Maryland, 373 U.S. 83 (1963); Burns v.
Reed, 500 U.S 478 (1991); Buckley v. Fitzsimons, 509 U.S. 259 (1993); and United States v.
Lanier, 520 U.S. 259 (1997). The Court does not entirely agree with Plaintiff or Defendants’
arguments. Instead, the Court reads Halsey as stating that the right to be free from prosecution
based on fabricated evidence existed before 2014.
To begin, none of Plaintiff’s cited cases clearly establishes a claim for fabrication of
evidence. Burns held that a prosecuting attorney is absolutely immune from liability for § 1983
damages for participating in a probable cause hearing, but not for giving the police legal advice.
500 U.S. at 481. Buckley held that a prosecutor’s alleged fabrication of evidence during the
preliminary investigation of an unsolved crime is shielded by qualified immunity. 509 U.S. at
276. And Lanier involved an analysis of the standard for determining whether particular conduct
(sexual assault of women by a state judge) falls within the ambit of criminal liability under 18
U.S.C. § 242. It does not say anything about a Fourteenth Amendment fabrication-of-evidence
Brady comes closest to the mark. In Brady, the Supreme Court issued its landmark
holding setting forth that the prosecution’s failure to disclose favorable material evidence
violates due process. 373 U.S. at 87. In fact, as discussed below, the Third Circuit in Halsey cited
Brady for the proposition that a fabrication-of-evidence claim was clearly established “long
As Defendants note, it is indisputable that Halsey was decided in 2014 and Black in 2016.
However, in Halsey, the Third Circuit determined that the fabrication-of-evidence claim was
clearly established at least as of 1985, when the violation in that case occurred. 750 F.3d at 295.
This recognition presents something of a space-time continuum issue for the Court. That is, if the
Third Circuit recognized in 2014 that a claim predicated on fabricated evidence was clearly
established “long before” the plaintiff’s prosecution in 1985, when was the right actually clearly
established? The Court reads Halsey to conclude that the right was clearly established before
2012, when the events giving rise to Plaintiff’s Complaint took place. This determination accords
with the Third Circuit’s conclusion that “[r]easonable officers should have known [after the
Supreme Court decided Brady in 1963] that if they could not withhold exculpatory evidence
from a defendant, they certainly could not fabricate inculpatory evidence against a suspect or
defendant.” Halsey, 750 F.3d at 296.
The Court therefore concludes that a standalone claim for fabrication of evidence, arising
under the Fourteenth Amendment’s Due Process Clause, was available to Plaintiff in 2012.
ii. Whether Defendants violated Plaintiff’s Fourteenth Amendment rights
Defendants next contend that even if the right was clearly established in 2012, they did
not violate Plaintiff’s Fourteenth Amendment rights and therefore they are entitled to judgment
in their favor. Plaintiff argues that Defendants violated his rights by fabricating evidence in order
to drum up criminal charges and ruin his life. The Court concludes that Plaintiff cannot establish
that Defendants violated his rights.
The Third Circuit has recognized a standalone claim for fabrication of evidence, arising
under the procedural due process component of the Fourteenth Amendment. See Black v.
Montgomery Cty., 835 F.3d 358, 369 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d
Cir. 2014). Such a claim stands alone because it need not be tied to a malicious prosecution
claim. Halsey, 750 F.3d at 292.
To establish a fabrication-of-evidence claim, a plaintiff must show there is a reasonable
likelihood that, absent that fabricated evidence, the defendant would not have been criminally
charged.” Black, 835 F.3d at 372. To meet the “reasonable likelihood” standard, the plaintiff
must establish a “meaningful connection” between the due process injury and the use of
fabricated evidence. Id. The plaintiff must also establish “that the fabricated evidence ‘was so
significant that it could have affected the outcome of the criminal case.’” Black, 835 F.3d at 372
(quoting Halsey, 750 F.3d at 295). Further, there is a “notable bar” for whether evidence was
fabricated. Id. at 372. “[T]estimony that is incorrect or simply disputed should not be treated as
fabricated merely because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Instead,
there must be persuasive evidence that the fabricated evidence’s proponents knew the evidence
was incorrect or offered it in bad faith. Id.
The Third Circuit in Black “reiterate[d] that ‘we expect that it will be an unusual case in
which a police officer cannot obtain a summary judgment in a civil action charging him with
having fabricated evidence used in an earlier criminal case.’” Black, 835 F.3d at 372 (quoting
Halsey, 750 F.3d at 295). For instance, Halsey presented such unusual facts that the Court said it
“hardly [could] conceive of a worse miscarriage of justice.” 750 F.3d at 278. The plaintiff served
twenty years of a sentence of two life terms in prison for the torture and murder of his partner’s
two young children after investigators inserted details the plaintiff could not possibly have
known into a “confession” that he signed after a relentless and coercive interrogation. Id. at 278–
82. All the while, the real killer, known to the police to have a record of sexual assaults and who
lived next door to the children, “avoided arrest despite nervously asking the investigating
detectives whether he would be ‘locked up.’” Id. at 278.
Although Halsey’s holding contemplated a civil litigant who had been convicted at a
criminal trial in which the prosecution used fabricated evidence, Black noted that the protection
recognized in Halsey did not turn on whether the plaintiff had been convicted at trial. Black, 835
F.3d at 371. In Black, the Court held that the plaintiff’s acquittal did not preclude her fabricationof-evidence claim, reasoning that holding otherwise “would insulate the ineffective fabricator of
evidence while holding accountable only the skillful fabricator. Id.
Here, Defendants argue that Plaintiff cannot establish a fabrication-of-evidence claim
because he does not assert a deprivation of liberty as required to state a procedural due process
claim, and because no fabrication of evidence occurred. Plaintiff advances several theories of
injurious deprivation of liberty and property interests, and also provides a theory of events in
which Defendants fabricated evidence resulting in his criminal charges.
1. Deprivation of a protected interest
Plaintiff claims he was deprived of liberty and property. Defendants aver that Plaintiff
cannot establish a fabrication-of-evidence claim because he does not assert a deprivation of
liberty as required to state a procedural due process claim. The Court agrees that no reasonable
jury could conclude that Plaintiff was deprived of a protected life, liberty, or property interest as
required to state a fabrication-of-evidence claim.
The Third Circuit has not spoken directly to what injury is required to state a fabricationof-evidence claim, perhaps because it did not need to in Halsey and Black. In those cases, the
Court did not need to address whether the fabrication of evidence, in and of itself, absent an
allegation of deprivation of liberty, would give rise to a cognizable injury. That is because in
both Black and Halsey, the plaintiffs were manifestly deprived of their liberty. The plaintiff in
Halsey served twenty years in prison, and the plaintiff in Black endured the various restraints on
her liberty involved in the criminal process, including traveling from California to Pennsylvania
for all pre-trial hearings, posting unsecured bail of $50,000, and living under “the cloud of very
serious charges,” Black, 835 F.3d at 367–68. Nothing like any of that happened to Plaintiff here.
In the broader procedural due process context, a claim for “[s]ubmission to a fatally
biased decisionmaking process,” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 545 (3d
Cir. 2017) necessarily entails as an element a deprivation of liberty or property because “[a]t the
core of procedural due process jurisprudence is the right to advance notice of significant
deprivations of liberty or property and to a meaningful opportunity to be heard.” Abbott v.
Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (emphasis added). Put differently, the deprivation by
state action of a protected interest in life liberty, or property, without due process of law, is
unconstitutional. See Burns v. Pa. Dep’t of Corr., 544 F.3d 279, 283–84 (3d Cir. 2008).
In the fabrication-of-evidence context, the Third Circuit has yet to decide whether a
plaintiff alleging such a claim must also allege that she was deprived of her life, liberty, or
property in some way. However, several other Courts of Appeals have. The Second Circuit in
Zahrey v. Coffey (cited favorably in Black) noted that “[l]itigants sometimes speak of a ‘right to
due process,’ . . . . [b]ut the Constitution does not guarantee ‘due process’ in the abstract; it
guarantees that ‘[n]o person shall . . . be deprived of life, liberty, or property, without due
process of law.’” 221 F.3d 342, 348 n.4 (2d Cir. 2000) (fourth and fifth alterations in original)
(quoting U.S. Const. amend. V). And the Seventh Circuit noted that to prevail on a fabricationof-evidence claim, “the plaintiff must have suffered a deprivation of liberty.” Cairel v. Alderden,
821 F.3d 823, 831 (7th Cir. 2016); cf. Weiland v. Palm Beach Sheriff’s Off., 792 F.3d 1313, 1328
(identifying “unjust incarceration” as “a deprivation of liberty redressable under the Due Process
Clause of the Fourteenth Amendment” in the malicious prosecution context). Most recently, the
Ninth Circuit held that “[t]o prevail on a § 1983 claim of deliberate fabrication, a plaintiff must
prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate
fabrication caused the plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798
(9th Cir. 2017).
Additionally, another court in the Western District of Pennsylvania has recognized that to
state a procedural due process claim for fabrication of evidence, a plaintiff must allege
deprivation of liberty. Pazicni v. Miller, No. 17-cv-117, 2017 WL 2418688, at *7 (W.D. Pa. June
5, 2017). And in fabrication-of-evidence’s mirror image context, suppression of exculpatory
evidence, the Supreme Court has stated that “suppression of evidence amounts to a constitutional
violation only if it deprived the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667,
The Court concludes, based on the consensus of other Courts of Appeals to have
considered the issue, Judge Fischer’s reasoning in Pazicni, and a commonsense understanding of
the nature of the injuries that may result from fabrication of evidence, that in order to state a
fabrication-of-evidence claim arising under the procedural component of the Due Process Clause
of the Fourteenth Amendment, a plaintiff must allege that he was deprived of life, liberty, or
property in some way as a result of the fabricated evidence. Unlike in the administrative
procedural due process context, in which submitting one’s claims to a biased tribunal is itself
injurious, the court does “not see how the existence of a false police report, sitting in a drawer in
a police station, by itself deprives a person of a right secured by the Constitution and laws,”
Landrigan v. City of Warwick, 628 F.2d 736, 744 (1st Cir. 1980); see also Buckley v.
Fitzsimmons, 509 U.S. 259, 281 (1993) (Scalia, J., concurring) (“I am aware of no authority for
the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that
deprives someone of a fair trial or otherwise harms him, violates the Constitution.”).
The Court next turns to whether Plaintiff has advanced record evidence which would
permit a jury to find a deprivation of constitutionally protected life, liberty, or property. Here,
Plaintiff was never “processed” into the criminal justice system—because he refused to go to the
PSP to be processed and the District Attorney did not pursue the matter—for his criminal
charges before they were nolle prossed. Between January 16, 2014, when the charges were
issued, and the nolle prosequi by Armstrong County on August 7, 2015, Plaintiff was never
detained by police, placed into custody, or otherwise restricted in any way as a result of these
charges. By contrast to the deprivations at issue in Halsey and Black, Plaintiff has not pleaded a
deprivation of liberty interest, or produced evidence of such deprivation.
In the absence of an allegation that he was deprived of his liberty, Plaintiff advances two
arguments: (1) that his property was seized as a result of the allegedly fabricated evidence, and
(2) that his employment as a police officer was “seized” as a result of the charges, despite the
fact that they were later dropped. Defendants contend that an inability to work as a police officer
and loss of property do not constitute a cognizable deprivation of liberty, and even if they did,
Plaintiff has not presented evidence that he was subject to either type of deprivation. Following
Oral Argument, the Court asked the parties to brief whether record evidence supported an
allegation of deprivation. (Pl.’s Statement, ECF No. 160; Defs.’ Joint Response to Pl.’s
Statement, ECF No. 161.)
First, assuming that Plaintiff had a protected property interest in continuing his
employment as a public police officer, Gilbert v. Homar, 520 U.S. 924, 928–29 (1997); see
Police Tenure Act, 53 Pa. Cons. Stat. § 812, Plaintiff has presented no evidence that he lost his
employment as a police officer because of the Armstrong County charges. Plaintiff has shown
that the North Buffalo Township Police Department suspended him on January 18, 2014, “as a
result of [his] criminal charges by the Pennsylvania State Police [for] theft . . . and current
criminal charges in the State of Massachusetts of weapons violations.” (Pl.’s App’x A, ECF No.
160–1 (emphasis added).) The PSP filed felony charges against Plaintiff on January 16, 2014.
(Pl.’s Ex. 16.d, ECF No. 124–66, at 3.) The Massachusetts charges were brought on October 24,
2013. (Pl.’s Ex. 21.b, ECF No. 124–92, at 2.) The Massachusetts felony charges for carrying a
firearm without a license were dismissed on January 17, 2014, and the other Massachusetts
misdemeanor charges for improper storage of firearms were dismissed on January 16, 2015. (Id.)
This suspension does not constitute a loss of employment sufficient to deprive Plaintiff of his
property or liberty. He has advanced no record evidence that he actually lost a day of work that
he would have otherwise had but for this rather amorphous “suspension.” Nor, for that matter,
can Plaintiff establish that but for the Armstrong County charges he would not have been
suspended, because the suspension letter also expressly relied on the Massachusetts criminal
Additionally, in a January, 5, 2016, memorandum regarding Plaintiff’s suspension, the
Chairperson of the Board of Supervisors of North Buffalo Township communicated to Plaintiff
that the suspension was removed from his record, that the Township did not intend to refer to the
suspension for any purpose in the future, and confirmed that Plaintiff actually kept working as a
North Buffalo Police Officer: “I know that you have worked as a police officer of North Buffalo
Township since this suspension has occurred so accept this letter to give closure to this matter.”
(Pl.’s App’x A, ECF No. 160–1, at 5–6 (emphasis added).)
Next, Plaintiff argues that he was deprived of his liberty because his Municipal Police
Officers’ Education and Training Commission (“MPOETC”) certification was “seized,” so he
could no longer work as a police officer. On January 23, 2014, the North Buffalo Township
Police Department sent a fax to the Commonwealth’s MPOETC, indicating that Plaintiff had
criminal arrests for theft and unsecured weapons, and that the arresting departments were the
Pennsylvania State Police and the University of Massachusetts Police. (Pl.’s App’x A, ECF No.
160–1, at 3–4.)
Plaintiff has also admitted, however, that the MPOETC never wrote to him or advised
him that his certification was revoked. (Pl.’s Ex. 13.1, ECF No. 124–27, at 29.) Rather, he stated
(without evidentiary foundation) that his understanding was that the “MPOETC doesn’t have to
revoke [my certification]. The law itself revokes it. The moment you file charges I can’t work.
That’s a seizure.” (Id.) He went on to confirm that the “MPOETC never called me up and took
the card, but the law requires that I cannot work. . . . . In my mind that is a seizure.” (Id.)
But in separate litigation in the Western District of Pennsylvania, in which Plaintiff was
represented by the same counsel as the instant case, Plaintiff submitted a certification from the
MPOETC effective from May 23, 2013 until June 30, 2015. See Third Amended Complaint,
Bracken, DeForte and Jennings v. Cty. of Allegheny et al., No. 2:16-cv-00171-CRE, ECF No.
64–2.28 An affidavit submitted in that litigation by a Deputy Agency Open Records Officer of the
Pennsylvania State Police Department Headquarters stated that Plaintiff was certified by the
MPOETC and was employed by the North Buffalo Police Department from April 9, 2012, until
at least the date the affidavit was issued, March 8, 2017. Bracken v. Cty. of Allegheny, No. 2:16cv-00171-CRE, ECF No. 75–7.29 Thus, the record indisputably demonstrates that no matter what
Plaintiff may have assumed, there is no basis to conclude that the charges in this case ever
actually impaired his MPOETC certification.
It is plain that Plaintiff was never fired as a result of any of the Pennsylvania or
Massachusetts charges, and that he was employed by North Buffalo until his voluntary
resignation on October 27, 2017, (see Defs.’ Ex. A, ECF No. 161–1, at 2.) It is also apparent that
even if Plaintiff subjectively felt that his certification was “seized” as a result of the charges, the
MPOETC never informed him as such or revoked his certification, and the documents he has
referenced demonstrate that it remained in force. Indeed, Plaintiff was continuously employed
A panel of the Third Circuit Court of Appeals recently noted, in another of DeForte’s cases, that this document
“appears to certify that DeForte was employed by the North Buffalo Township Police Department from May 23,
2013 through June 30, 2015. See Bracken v. Cty. of Allegheny, No. 18-1101, 2019 WL 169125, at *2 n.4 (3d Cir.
Jan. 11, 2019).
In addition, in yet another case filed in this Court, DeForte v. Blocker, No. 2:16-cv-00113, in which DeForte was
represented by the same counsel as the instant case, and which has since been consolidated with this case, DeForte
alleged that he was employed by North Buffalo Township in 2013 and was still employed when the Complaint was
filed. See DeForte v. Blocker, No. 2:16-cv-00113, ECF No. 1, at ¶¶ 159–60; 180–86.
during the period his charges were pending. That his certification, in theory, may have been in
jeopardy may have caused Plaintiff, who by all accounts takes his status as a law enforcement
officer quite seriously, some degree of stress. But even if he subjectively believed that his
certification was “seized,” and he therefore could not work, he never acted on that subjective
impression by resigning, nor has he advanced evidence that there was a loss of certification that
kept him from working. And North Buffalo’s fax to the MPOETC could not by itself deprive
him of the ability “to engage in any of the common occupations of life” or “generally to enjoy
those privileges long recognized at common law as essential to the orderly pursuit of happiness
by free men,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Second, Plaintiff avers a deprivation of a property interest in personal items that he
claims Feeney, Rodgers, and Zandarski took from him while seeking to have Plaintiff criminally
charged. (Plaintiff’s Statement, ECF No. 160, at 2.) As a preliminary matter, the Court notes that
Plaintiff has not submitted any record evidence that he requested the return of any property after
the charges were dropped.
Plaintiff claims Feeney seized Plaintiff’s “personal property” and displayed these items to
the Borough Council. However, Plaintiff’s citations to the record refer to items recovered from
Pine Township that had been “labeled Worthington Borough Police Department.” (Pl.’s Ex. 2.2,
ECF No. 26 (“Omnibus Hearing Tr.”), at 29:16.) Nowhere does the record state that these items
belonged to Plaintiff.
Plaintiff also cites to his deposition in another case that “gun cleaning stuff,” “bulletmaking stuff,” “clothing,” “a clock,” and “furniture” were never returned to him, (see Pl.’s Ex.
6.1, ECF No. 124–15, at 41–42.) Regardless of whether this statement would be admissible and
can therefore be considered for summary judgment purposes, see Pamintuan v. Nanticoke
Memorial Hosp., 192 F.3d 378, 387 & n.13 (3d Cir. 1999), Plaintiff confirmed in his same
testimony that “[t]he stuff I legally could take I took, and the stuff that I legally could not take I
left” when he left the station after being fired. (Id. at 42.) Having affirmatively stated that he had
no legal claim to any property he left at the station, his statement does not support an allegation
that he was deprived of property, and certainly does not create a genuine issue of fact that he
Nor does Plaintiff’s citation to a memo from the Department stating that any officer
donating or benefiting from equipment donated to the Department shall have the opportunity to
possess the item after separation from the Department establish that Plaintiff actually owned any
of these items in the first instance. (See Pl.’s Ex. 15.a, ECF No. 124–50, at 2.) “Opportunity to
possess” does not mean “own.”
Regarding the circumstances in which certain property was recovered from Pine
Township, Borough Secretary David Conoran further explained in his deposition in another case
that “we were told that they belonged to Worthington Borough and they had been taken from the
Borough building and moved to Pine Township.” (Pl.’s Ex. 4, ECF No. 124–12, at 39.) He then
confirmed that he did not, at any time, learn that the property was owned by anyone else. (Id. at
39–40.) Plaintiff has advanced no evidence that calls any of that into question.
Plaintiff also claims Zandarski seized Plaintiff’s Colt bayonet and a Sig Swat 556 patrol
rifle (the latter of which was actually seized from C&G Arms). He avers that a canceled check
shows he paid for the bayonet, and that the Borough authorized the transfer of the rifle. The
record shows that a Colt bayonet with a black case, recovered from Pine Township by Clyde
Moore, was marked into evidence by the PSP. (Pl.’s Ex. 16.e, ECF No. 124–67, at 3.) The PSP
Property Record Form does not state ownership by him. Nor has Plaintiff provided any evidence
of ownership. The Affidavit of Probable Cause stated that “the bayonet knife was claimed by
DeForte as his personal knife. He could not produce a receipt for said knife.” (Pl.’s Ex. 16.b,
ECF No. 124–64, at 2.) Plaintiff avers that a canceled check shows proof of ownership, but the
cited canceled check from Plaintiff’s account states in the memorandum line “Police equip” and
does not refer to a bayonet. (Pl.’s Ex. 20.f, ECF No. 124–90, at 2,) so that canceled check is
As to the rifle, Plaintiff has not provided any evidence of ownership by him. He cites to
another Department memo signed by Feeney stating, in total, that “[t]he SIG SWAT 556 patrol
rifle bearing the serial number JT021401 shall be sold to C&G ARMS in exchange for a M4/MARK 18 style weapon of Chief DeForte’s choosing. Said chosen weapon will be used by
Chief DeForte in the performance of his duties and may be transferred upon legal means to Chief
William DeForte.” (Pl.’s Ex. 15.c, ECF No. 124–52, at 2.) If anything, this document indicates
that the Sig Swat 556 rifle was to be sold to C&G Arms, not that it belonged to Plaintiff.
Third, Plaintiff avers that Rodgers is in possession of Plaintiff’s upper rifle and scope
assembly and “other items of Plaintiff’s property.” (ECF No. 160, at 3.) As to the rifle, while
Rodgers admits that he is currently in possession of the rifle, Plaintiff has not established that
Plaintiff owned the upper and scope assembly. Moreover, Plaintiff admits that the rifle was given
to Rodgers as a trade for the first gun Rodgers had paid him for. (See, e.g., DeForte Dep., Pl.’s
Ex. 13.2, ECF No. 124–28, at 26; DeForte Dep., Defs.’ Ex. A, ECF No. 108–2, at 254 (“I
purchased this rifle and then gave it to Jerry [Rodgers] . . . . So Jerry had legal ownership of it
[the first gun] at that time.”) Plaintiff further admits that he never returned any money to Rodgers
for the first gun, but he “did agree to trade him the 556 for the AR.” (Pl.’s Ex. 13.3, ECF No.
124–29, at 33–34.) Once again, none of this is evidence that Plaintiff had an ownership interest
in these items at the relevant time.
As to the “other items,” Plaintiff’s record citation is to Rodgers’s testimony at the state
court preliminary hearing that Rodgers purchased items with his (Rodgers’s) own money and/or
chipped in money for items “for the station” at Plaintiff’s request. The exchange in the testimony
is as follows:
Q: What item did you purchase for Mr. [DeForte]?
A: Many items: gun reloaders, colored TV, gas grills, anything he asked me.
Q: I don’t understand. You purchased him a colored television?
A: I did. For the station.
Q: For the station?
(Pl.’s Ex. 1.2, ECF No. 124–2, at 3.) This testimony establishes that Rodgers bought various
items for the station with his own money or contributions from other officers. (See id. (“I just
gave Mr. [DeForte] the money for the TV – my share of the money on that particular thing.”).) It
does not establish that Plaintiff owned any of the property that Rodgers purchased for the station.
The Court concludes that, even viewed in the light most favorable to Plaintiff, the record
evidence does not show that Plaintiff has been deprived of a constitutionally protected liberty or
property interest as a result of the charges. The Court therefore need not reach a conclusion as to
whether Defendants fabricated any evidence. Defendants are entitled both to Qualified Immunity
and judgment on the merits on this federal claim, and the Court will grant summary judgment in
their favor on Count I.30
Plaintiff’s Section 1988 claims for attorney fees are also dismissed, because only prevailing parties are to be
awarded attorney’s fees under this statute. See 42 U.S.C. § 1988.
B. State Tort Claims – Zandarski
In the Complaint at No. 16-cv-113 (consolidated with this case), Plaintiff also alleges in
Counts II and IV, respectively, state law malicious prosecution and intentional infliction of
emotion distress claims against Defendant Zandarski.31
Zandarski asserts that these claims are barred by the Commonwealth’s sovereign
immunity. The sovereign immunity doctrine protects “the Commonwealth, and its officials and
employees acting within the scope of their duties . . . from suit except as the General Assembly
shall specifically waive the immunity.” 1 Pa. Cons. Stat. § 2310. Pennsylvania state law provides
a limited waiver of sovereign immunity for certain negligent acts not at issue here. See 42 Pa.
Cons. Stat. § 8522(b).
Sovereign immunity’s protection, barring suit against state employees whenever they act
within the scope of their official duties, applies regardless of whether Commonwealth employees
are sued in their official or individual capacities. See Zanetti v. Goss, No. 16-cv-379, 2016 WL
6583727, at *5 (W.D. Pa. Nov. 4, 2016). The doctrine protects Commonwealth employees even
with regard to intentional tort claims. Kull v. Guisse, 81 A.3d 148, 157 (Pa. Commw. Ct. 2013).
Thus, whether immunity attaches depends on whether Zandarski was acting within his duties as a
state trooper when he allegedly committed the complained-of acts. See Mohammed v. John Doe
Pa. State Police Sup’rs, No. 11-cv-5004, 2013 WL 5741788, at *11 (E.D. Pa. Oct. 23, 2013).
To determine whether the conduct is within the scope of an employee’s duties, courts
consider whether “(a) it is the kind [the employee] is employed to perform; (b) it occurs
substantially within the authorized time and space limits[; and] (c) it is actuated, at least in part,
by a purpose to serve the [the employer].” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir.
2000) (quoting Rest. 2d. Agency § 228). Where a state trooper is on duty and investigating a
As noted, the remainder of Plaintiff’s claims against Zandarski were already dismissed.
crime throughout the duration of the alleged offenses, she is acting within the scope of her
employment and sovereign immunity will require the dismissal of state law claims against her.
Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 683 (M.D. Pa. 2010).
At the Motion to Dismiss phase, Plaintiff argued that Zandarski was not entitled to
sovereign immunity because he held supplementary employment in Defendant Rodgers’s
logging business and that, in allegedly initiating false criminal charges against him and
manipulating the evidence to support those charges, Zandarski acted to curry favor with Rodgers.
See DeForte v. Blocker, No. 2:16-cv-113, 2017 WL 1102655, at *7 (W.D. Pa. March 24, 2017).
Now, Zandarski has conclusively established that he was not employed by Rodgers when the
case was investigated or when, with the District Attorney’s authorization, he filed the charges in
January 2014 and his involvement with the matter ended.
In opposition to summary judgment, Plaintiff appears to have abandoned this argument,
instead citing to cases on qualified immunity and stating that “while, under normal
circumstances, and acting professionally, police officers would be entitled to Sovereign
Immunity, however, when the record evidence in its totality is viewed in favor of the plaintiff, is
undeniable that Sovereign Immunity does not apply in the case at hand.” (Pl.’s Br. in Opp., ECF
No. 129, at 22–23.) This conclusory statement, supported by no legal analysis on sovereign
immunity, taken together with Plaintiff’s citations to an inapplicable legal doctrine, and the
complete absence of record evidence to support an allegation that Zandarski was not acting
within the scope of his duties when he pursued charges against Plaintiff, are insufficient to divest
Zandarski of sovereign immunity. The state tort claims against Zandarski will therefore be
C. State Tort Claims – Rodgers
In Count II, Plaintiff alleges a state law malicious prosecution claim against Defendant
Rodgers. (Compl. ¶¶ 186–93.) Plaintiff alleges that Rodgers maliciously influenced the PSP and
Armstrong County DA’s office into bringing criminal charges without probable cause. (Id.)
“Malicious prosecution is an action which runs counter to obvious policies of the law in
favor of encouraging proceedings against those who are apparently guilty . . . . It never has been
regarded with any favor by the courts, and it is hedged with restrictions which make it very
difficult to maintain.” Corrigan v. Cent. Tax Bureau of Pa., Inc., 828 A.2d 502, 506 (Pa.
Commw. Ct. 2003) (quoting Miller v. Pa. RR Co., 89 A.2d 809, 810 (Pa. 1952)). “If this were
not so, it would deter men from approaching the courts of justice for relief.” Id. To prevail on a
claim of malicious prosecution, a plaintiff must show that the defendant instituted proceedings
without probable cause, with malice, and that the proceedings terminated in his favor. De Salle v.
Penn Cent. Transp. Co., 398 A.2d 680 (Pa. Super. 1979).
Here, it is undisputed that the proceedings terminated in Plaintiff’s favor, as the
prosecution invoked nolle prosequi as to all charges. The Court must therefore determine
whether the record could support a conclusion that Rodgers instituted proceedings without
probable cause, and with malice. The Court concludes that no facts support a conclusion Rodgers
instituted the proceedings against Plaintiff, and Rodgers is entitled to summary judgment in his
As a threshold matter, Plaintiff’s claim is against Rodgers and not the District Attorney.
Some courts have treated whether a defendant is the prosecutor as dispositive of a malicious
prosecution claim. See, e.g., Gatter v. Zappile, 67 F. Supp. 2d 515, 520–21 (E.D. Pa. 1999)
(“[Plaintiff] cannot show that [Defendants] initiated the proceedings against him . . . .”). That is
because the prosecutor, and not some other party, is responsible for initiating a proceeding
against a criminal defendant. Rodgers argues that on this basis alone, he is entitled to summary
However, the Court has identified instances in which Pennsylvania courts permitted
malicious prosecution actions to proceed against defendants who were not prosecutors (or even
police officers). See, e.g., Cosmas v. Bloomingdales Bros., Inc. (660 A.2d 83) (Pa. Super. Ct.
1995); Wainauskis v. Howard Johnson Co., 488 A.2d 1117 (Pa. Super. Ct. 1985). Moreover, the
Third Circuit recognized, in a case against a School District and a police department and
detective, that a school district could be “liable for its major role in a malicious prosecution.”
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 794 (3d Cir. 2000). However, in these cases,
all involving allegations of theft from the defendants (who were not prosecutors or police
officers), the prosecutors acted only on information provided to them by the defendants. See
Merkle, 211 F.3d at 794 (“Hahn acted only on what Principal Thomas told him.”).
The Restatement (Second) of Torts, section 653, comment c, states that for purposes of a
malicious prosecution claim, criminal proceedings are initiated “by making a charge before a
public official or body in such form as to require the official or body to determine whether
process shall or shall not be issued against the accused.” Rest. 2d. of Torts § 653. Therefore, “one
who procures a third person to institute criminal proceedings against another is liable just as if he
himself had initiated the proceedings.” Hess v. Lancaster Cty., 514 A. 2d 681, 683 (Pa. Commw.
The Restatement’s operative question is whether the public official bringing charges had
the discretion to do so. Thus, the Court must determine (1) whether it was left to the officer’s
discretion to initiate the proceedings, in which case giving information was not a “procurement
of the proceedings”; or (2) in the case that the private individual gave false information, such that
“an intelligent exercise of the officer’s discretion becomes impossible,” whether the private
person’s “desire to have the proceedings initiated, expressed by direction, request or pressure of
any kind, was the determining factor in the official’s decision to commence the prosecution” or
the official knew the information was false. Id. at 683 (quoting Rest. 2d Torts, § 653 cmt. g).
Here, it is not disputed that the PSP and District Attorney’s office held two meetings to
consider whether there was enough evidence to press charges against Plaintiff. At the first
meeting, Corporal Murphy, the District Attorney, Robin Davis, Station Commander Lt. Dubovi,
and Zandarski attended. Zandarski, Dubovi, and the District Attorney attended the second
meeting, at which the District Attorney decided which charges to approve and which to deny.
Rodgers did not attend either meeting. The public officials therefore had the sole discretion to
charge Plaintiff or not, and Rodgers was not in the room for that decisionmaking process.
To the extent that Plaintiff’s claim is premised on the theory that Rodgers knowingly
made omissions or false statements to PSP officials, even if the Court assumes that he did so, the
allegedly false information or omissions were not, as a matter of law, the determining factor in
the officials’ decision, such that Rodgers’s actions would make the officers’ exercise of
discretion “impossible” under the Restatement’s view.
The PSP’s affidavit of probable cause, prepared by Defendant Zandarski (Defs.’ Ex. R
(“Criminal Complaint”) ECF No. 115–19, at 7–8), contains information provided by Rodgers as
to his participation in the firearms transfers. Plaintiff identifies three areas in which he contends
Rodgers made false statements or omissions to the PSP:
(1) “Rodgers stated that he did not know about the rifle being issued to him.
However, Defendant Rodgers clearly had the letter of the transfer and
issuance from Defendant Feeney in his possession and admitted such to the
PSP. . . . It was inconceivable that Defendant Rodgers, a sworn officer of the
law, did not know what the document he was handed specified.”
(2) “Defendant Rodgers falsely stated . . . that he was under the impression that
the Armalite rif[l]e was Plaintiff’s personal property and not that of the Police
(3) “Rodgers told the State Police that he had asked for a receipt of the sale and
transfer from Plaintiff but he never received it.”
(Pl.’s Br. in Opp., ECF No. 128, at 11–12.) Also, the affidavit reflects that the Rodgers (and
Feeney) told the PSP that Plaintiff had the only key to the evidence locker, and Rodgers assisted
Detective Davis with the inventory of the prostitution sting files showing that $540 was missing.
Yet even if Plaintiff had established that any of information Rodgers gave was false, the
Court concludes that there was more than enough other evidence to establish probable cause to
charge Plaintiff, and no reasonable jury could conclude otherwise.
Although this is a state-law malicious prosecution claim, the Court will assess the
affidavit using the Dempsey reconstructive method blessed by the Third Circuit in the analogous
context of § 1983 cases where probable cause is challenged. There, the Third Circuit warned that
“in reviewing probable cause determinations made by law enforcement, the role of the courts is
not that of the much-maligned ‘Monday morning quarterback’ whose critiques are made possible
only by the benefits of hindsight.” Dempsey v. Bucknell Univ., 634 F.3d 457, 469 (3d Cir. 2016).
For Plaintiff’s claim to survive, a reasonable factfinder would have to be able to determine that
but for Rodgers’ allegedly improper omissions and misrepresentations to the PSP, there would
not have been probable cause for the charges against Plaintiff. Id.
At the outset, the Court notes that the Court is analyzing only whether Rodgers’s actions
improperly tied the hands of the PSP and the DA here, such that they lacked the discretion to
institute charges against Plaintiff. The Court is not conducting a wholesale inquiry into the PSP’s
probable cause determination, and is not wading into the merits of Plaintiff’s other allegations
that the PSP lacked probable cause because of other parties’ alleged misstatements or omissions,
or because the PSP recklessly ignored evidence such as his photographs. Those allegations,
which Plaintiff repeats at length in his briefing, are not relevant to his remaining malicious
prosecution claim, which is only against Rodgers for his alleged role in the prosecution.
The probable cause analysis looks to, first, whether Rodgers, “with at least a reckless
disregard for the truth, made false statements or omissions that created a falsehood in applying
for a warrant, and second, whether those assertions or omissions were material, or necessary, to
the finding of probable cause.” Id. at 467 (internal quotation marks omitted). For purposes of
resolving this issue, the Court will assume that Rodgers did make false statements or omissions
to the PSP.
The next step of the analysis is “to reconstruct the affidavit, including the recklessly
omitted information, so that [the Court] may proceed with a materiality analysis.” Id. at 474. The
Affidavit, reconstructed to include the allegedly recklessly omitted information and remove the
alleged misrepresentations, would read:
On October 28, 2012, Mayor Kevin Feeney of Worthington Borough contacted
the State Police to advise that he suspected [suspicious] activity by Chief William
DeForte. Feeney advised that DeForte had just been released of his duties for
conduct unbecoming a police officer. Worthington Borough requested that the
State Police assist them in conducting a thorough inventory of their police
equipment. Mayor Feeney advised that he believed to have several items missing
from the police department. Mayor Feeney was informed that the State Police
would not assist in the inventory of police equipment. The borough was informed
to contact the Armstrong County District Attorney’s office.
On November 28th, 2012, an inventory was conducted by Armstrong County
Detective Robin Davis and current police chief Gerald V. Rodgers Jr. This
inventory uncovered that $540.00 was missing from the evidence locker. This
money was recovered as evidence from a “Prostitution Sting Operation” that
DeForte had conducted within Worthington Borough. The total money recovered
which is documented in the from this sting operation was $1520.00. The total
amount of money in the evidence locker during the inventory from this sting
operation was $980.00. Mayor Feeney and Chief Rodgers advised that DeForte
was the only one with a key to the evidence locker.
On April 28th 2010, Worthington Borough purchased an Armalite M15 rifle
lower half assembly bearing serial number US350432 with federal grant money.
This particular rifle was then assembled with an upper receiver, Trijicon scope,
and a sling. DeForte admitted to purchasing the Trijicon scope and putting it on
the rifle. This particular rifle was carried by DeForte and known to others as
DeForte’s personal weapon.
In 2011, DeForte sold Rodgers a STG 5.56 rifle for $1500.00, Rodgers attempted
to fire the weapon but it malfunctioned. Rodgers then told DeForte he wanted a
weapon that functioned properly. This is when DeForte then gave the Armalite
M15 rifle bearing serial number US350432 to Rodgers. DeForte told Rodgers that
he could have his rifle since the other one was not functioning properly. Rodgers
had in his possession a memorandum, signed by Mayor Feeney and DeForte,
stating that upon separation from the Department and/or serving for one
year, the rifle would be Rodgers’ personal property if Rodgers so chose.
Rodgers knew that the lower was Borough property.
On October 22 2012, DeForte was hired as the Pine Township Police Chief.
While in the process of being hired, DeForte asked Pine Township secretary
Stephanie Reedy if he could give $1,000.00 monthly donations to the township
for purchase of guns for the police department. Reedy thought this was very
suspicious. Shortly after DeForte was hired, Pine Township found out about the
investigation by the State Police in Worthington. At this time, Pine Township
disbanded the Pine Township Police Department.
On October 31st, 2012, Pine Township Supervisor Clyde Moore had been made
aware of the State Police investigation of DeForte. At this time, Moore reported
that DeForte had brought to Pine Township 15 rifle magazines and approximately
5 boxes of ammunition. He also saw two speed timing devices with Pine
Township etched into the bottom. Moore said that they had agreed to purchase a
police cruiser from Worthington Borough. DeForte had told Moore that along
with the police cruiser they would receive police radios. Moore then contacted
Mayor Feeney from Worthington Borough. Mayor Feeney advised that he had
never given DeForte permission to sale police radios or any other police
equipment from Worthington Borough to Pine Township. Feeney said that he was
only aware of [the] police cruiser.
On November 1st, 2012, Clyde Moore brought a colt bayonet knife in a black
ease along with two Robic SC-848W stopwatches to the PSP Kittanning barracks.
The bayonet knife was claimed by DeForte as his personal knife. He could not
produce a receipt for said knife. The two Robic stopwatches, had a total value of
$119.90. Neither Pine Township nor Worthington Borough authorized the
purchase of said items. These items were logged into the PSP Kittanning evidence
According to YIS/COWDEN, retailer of stopwatches, the two stopwatches in
question were paid for by an unknown source in March of 2013.
On November 2nd 2012, Clyde Moore brought two Kenwood brand portable
radios with charge[r]s valued at $1150.00 to the PSP Kittanning barracks. These
items were logged into the PSP Kittanning evidence locker. The Kenwood brand
portable radios were the property of Worthington Borough.
Next, the Court must determine “whether the recklessly omitted statements [and
corrected misstatements], considered in the context of the affidavit as a whole, were omissions
‘material, or necessary, to the finding of probable cause.’” Dempsey, 834 F.3d at 477 (quoting
Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000)). In order to grant summary judgment to
Rodgers, the Court must conclude that no reasonable jury could find facts that would lead to the
conclusion that the reconstructed Affidavit lacked probable cause.
The criminal complaint against DeForte asserted five (5) criminal counts: (1) Theft by
Unlawful Taking (AR-15); (2) Theft by Deception (AR-15); (3) Receiving Stolen Property (AR15); (4) Theft by Unlawful Taking (Money and Radios); and (5) Receiving Stolen Property
(Money and Radios).
(1) Theft by Unlawful Taking (AR-15)
With respect to Theft by Unlawful Taking of the Armalite M15, state law provides that
“[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.” 18 Pa. Cons. Stat. Ann. § 3921. Here, the
reconstructed Affidavit sets forth that Plaintiff sold Rodgers a STG 5.56 rifle for $1,500.00, and
when the gun did not work properly in Rodgers’s estimation, Plaintiff swapped out the STG 5.56
for an Armalite M15 with serial number US 350432, and told Rodgers he could have it. The
Armalite M15 was Borough property, carried by Plaintiff and known to others as his personal
weapon. The reconstructed Affidavit says that Rodgers knew the lower assembly was Borough
property and had a document purporting to transfer that property to him after separation from the
Borough and/or one year of service.
The probable cause for charging Plaintiff was not based on whether Rodgers knew that he
was purchasing stolen property. Plaintiff was still the one charged with illegally transferring the
weapon to Rodgers by first selling him one gun, then swapping out that gun for Borough
property. Whether Rodgers knew it was Borough Property, or whether Plaintiff should have also
been charged with a crime has nothing to do with the PSP’s basis for charging Plaintiff.
(2) Theft by Deception (AR-15)
Pennsylvania law criminalizes “intentionally obtain[ing] or withhold[ing] property of
another by deception.” 18 Pa. Cons. Stat. Ann § 3922(a). “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;
(2) prevents another from acquiring information which would affect his
judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously
created or reinforced, or which the deceiver knows to be influencing another to
whom he stands in a fiduciary or confidential relationship.
The Criminal Complaint describes the acts associated with this offense: as “The
Defendant intentionally obtained or withheld property, namely, $1500, belonging to Gerald V.
Rodgers Jr, by creating or reinforcing a false impression, namely that an Armalite M15 rifle
bearing serial number US 350432 was his personal weapon.” (Criminal Complaint, at 4.) The
reconstructed Affidavit states that the Borough purchased the lower assembly for the M15, that
DeForte carried the M15, that it was known to others to be his personal weapon, and that in trade
for a weapon that Rodgers paid $1500 for, DeForte gave him the M15. Whether Rodgers knew
or believed that the lower was Borough property does not alter that DeForte gave him the entire
assembled weapon in trade for $1500 worth of property. Also, the PSP had good reason to
disregard the “transfer memorandum,” regardless of whether Rodgers believed it was legitimate.
That is, the PSP could have concluded that the memo failed to correct Rodgers’ false impression
that Plaintiff could have legally transferred him any portion of the gun. Therefore, even if the
Court assumes that Rodgers knew the Borough owned the lower assembly, the PSP still had
probable cause to charge Plaintiff with theft by deception as to the entire rifle.
(3) Receiving Stolen Property (AR-15)
Pennsylvania law provides that “A person is guilty of theft if he intentionally receives,
retains, or disposes of movable property of another knowing that it has been stolen, or believing
that it has probably been stolen, unless the property is received, retained, or disposed with intent
to restore it to the owner.” 18 Pa. Cons. Stat. § 3925(a). The Criminal Complaint refers to the
Armalite M15 lower assembly belonging to Worthington Borough, stating that Plaintiff “did
intentionally receive, retain or dispose of” the lower “with no intent to restore it to the owner,
knowing that such property was stolen, or believing that it had probably been stolen.” (Criminal
Complaint, at 4.)
The reconstructed Affidavit reflects that DeForte gave—as part of the assembled
weapon—the lower of the Armalite M15 to Rodgers in trade for a weapon Rodgers had paid
Plaintiff $1500.00 for. The Affidavit also provides that the lower was purchased by Worthington
Borough with federal grant money. Whether Rodgers had a memo purporting to transfer the rifle
to him does not force a conclusion that the PSP did not have probable cause to charge Plaintiff
with receiving stolen property by trading the Borough-owned lower for value. If anything, the
“transfer memorandum” adds to the suspicious nature of the transaction.
(4) Theft by Unlawful Taking (Money and Radios)
As set out above, “[a] person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him thereof.” 18 Pa.
Cons. Stat. Ann. § 3921. The Complaint charged Plaintiff with theft of two Kenwood handheld
radios with chargers, valued at $1150, and the $540 missing from the evidence locker.
As to the radios, the reconstructed Affidavit does not mention Rodgers or any statements
by Rodgers in connection to the investigation of the radios. The Affidavit reflects that Plaintiff
told Moore that Pine Township would receive police radios, and that Feeney said he had never
given permission for Worthington to sell those radios. Moore then recovered two Kenwood
radios, which were property of Worthington, and brought them to the PSP Barracks. This
evidence gave the State Police probable cause to charge Plaintiff with theft of the radios.
Rodgers’s statements or omissions had no effect on the probable-cause determination supporting
As to the theft of the money, the reconstructed Affidavit shows that Detective Davis
conducted an inventory and money from an operation run by Plaintiff was missing from an
evidence locker to which Plaintiff had the only key. Even if Rodgers’ statement about the key is
removed, Feeney’s statement remains. Thus, multiple individuals other than Rodgers gave the
PSP information in support of probable cause to charge Plaintiff with stealing the money.
(5) Receiving Stolen Property (Radios and Cash)
As set forth above, “[a] person is guilty of theft if he intentionally receives, retains, or
disposes of movable property of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or disposed with intent to restore
it to the owner.” 18 Pa. Cons. Stat. § 3925(a). The reconstructed Affidavit shows that Plaintiff
did not have permission to sell or donate any radios to Pine Township, and yet radios belonging
to Worthington Borough turned up at Pine Township. No statement or omission by Rodgers
affects that portion of the affidavit.
As to the prostitution sting money, again, the reconstructed Affidavit reflects that the PSP
was told by individuals other than Rodgers that $540 was missing from a sting directed by
Plaintiff, and that Plaintiff had the only key to the evidence locker. The PSP therefore had
probable cause, beyond any omissions or falsehoods from Rodgers, to charge Plaintiff with
intentionally receiving, retaining, or disposing of movable property of another.
Considering the reconstructed Affidavit, PSP plainly had the full discretion, as
contemplated by the Restatement, to charge Plaintiff. Even assuming that Rodgers omitted facts
or lied to the investigators, he was not in the room when charging decisions were made, and his
alleged falsehoods and omissions did not affect the probable-cause value of the total mix of
information in the reconstructed Affidavit. Plaintiff therefore cannot establish that Rodgers, by
virtue of providing the PSP with information related to Plaintiff’s alleged criminal acts, instituted
criminal proceedings against him. No reasonable jury could find otherwise, and the Court will
award summary judgment in his favor on the malicious prosecution claim.
Intentional Infliction of Emotional Distress
“The gravamen of the tort of intentional infliction of emotional distress is outrageous
conduct on the part of the tortfeasor.” Kazatsky v. King David Memorial Park, Inc., 527 A.2d
988, 991 (Pa. 1987). To prevail on a claim for intentional infliction of emotional distress in
Pennsylvania, a claimant must prove the existence of the alleged distress by “competent medical
evidence.” Id. at 992. The Third Circuit has interpreted this requirement to mean that “expert
medical evidence” must be presented. Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 35 (3d Cir.
1994). Plaintiff avers that he sought treatment for “severe headaches brought by the stress caused
from” Rodgers’ actions. (Pl.’s Br. in Opp., ECF No. 128, at 20.) Plaintiff cites to his Exhibit 25,
showing a blurred reproduction of what appears to be a note from a Registered Nurse at
Dartmouth Medical Center stating that the Plaintiff was examined on October 24, 2013, and
given medication for migraines to be used as needed. (Pl.’s Ex. 25, ECF No. 124–98, at 2.)
This is not expert medical evidence. Moreover, considering the timing of this medical
visit, approximately one year after he was fired from Worthington Borough while he was in law
school and dealing with the events that led to his expulsion, as well as pending criminal charges
in Allegheny County, and absent any further medical evidence that his ailment was linked to the
events alleged in the Complaint, the Court concludes that Plaintiff has provided insufficient
competent medical evidence to support his pleadings. He therefore cannot establish the elements
of intentional infliction of emotional distress, and summary judgment will be granted in
Rodgers’s favor on this Count.
For the foregoing reasons, Defendants’ Motions for Summary Judgment, at ECF Nos.
109 (errata 115), 111, and 113, will be granted. Defendants’ Joint Motion to Strike at ECF No.
149 will be granted. Defendants’ Joint Motion to Strike at ECF No. 151 will be denied.
An appropriate Order will follow.
s/ Mark R. Hornak
Mark R. Hornak
Chief United States District Judge
Dated: March 4, 2019
All counsel of record
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