The opinion
_______________F_O__R_ _T_H__E_ _E_A_S_T__E_R__N_ _D_I_S_T_R__IC_ T OF PENNSYLVANIA
SEAN PATRICK BURKE, et al., :
Plaintiffs, :
:
v. : Civil No. 5:23-cv-01959-JMG
:
CHIEF EDWARD BACHERT, et al., :
Defendants. :
__________________________________________
MEMORANDUM OPINION
GALLAGHER, J. November 20, 2023
I. OVERVIEW
Plaintiffs Sean Patrick Burke; Equinox Advantage Real Estate I, Inc.; Stella Cadente
Investments, LLC; and Equinox Property Management, Inc. (collectively, “Plaintiffs”) allege
claims against Defendants Officer Richard Penn; Officer Steven Fritzinger; Officer Matthew
Devers; Officer Jose Vazquez; Officer Eric Tosado; Officer Richard Krasley; (collectively,
“Officer Defendants”); Cindy Witman; Timothy Campion; Garren Knoll; Barry Cohen
(collectively, “Base Employee Defendants”); Base Engineering, Inc.; Borough Manager Eric
Gratz; Chief of Police Edward Bachert; Charles F. Zurick, III; and John Does 1–10. Plaintiffs
allege state and federal violations arising from an enduring property dispute. Specifically,
Plaintiffs allege Fourth Amendment, trespass, and Fourteenth Amendment (due process) violations
in addition to a civil rights conspiracy and malicious prosecution. Each claim brought against an
individual defendant is done so in his or her individual capacity.
Before the Court are three motions to dismiss the Amended Complaint for failure to state
a claim brought by (1) Officer Defendants, Defendant Bachert, and Defendant Gratz (collectively,
“Borough Defendants”); (2) Base Engineering, Inc. and Base Employee Defendants; and (3)
Defendant Zurick. For the reasons set out in this memorandum, the Court grants in part and denies
II. BACKGROUND
A. Relevant Allegations1
1. Plaintiffs Purchased 728 Delaware Avenue in Fountain Hill,
Pennsylvania.
This suit arose out of a property dispute that eventually spiraled into criminal proceedings
for harassment, and now, a suit alleging various state and constitutional violations. Plaintiffs are
people and corporations associated with the property at issue, which is a mixed-use property
(residential and commercial) at 728 Delaware Avenue in Lehigh County, Pennsylvania (the
“Property”). Defendant Charles F. Zurick, III (“Defendant Zurick”) lives next door to Plaintiffs.
Defendant Zurick claimed to have an agreement with the previous owners of the Property to use
their parking lot. During several of Plaintiffs’ on-site visits prior to closing on the sale, Defendant
Zurick approached Plaintiff Sean Patrick Burke (“Plaintiff Burke”), Plaintiffs’ broker, and
expressed his desire to continue to use the Property’s parking lot following the sale.
Plaintiff Stella Cadente Investments, LLC (“Stella”) closed on the Property’s sale on July
29, 2020, and Defendant Zurick’s lobbying efforts continued. Not long after closing on the
Property, Plaintiffs decided against granting Defendant Zurick continued use of the Property; a
decision they reached in part due to the lack of any written easement or other such agreement. On
October 30, 2020, Defendant Zurick initiated an action for Quiet Title and Declaratory Judgment
establishing an easement by prescription over a portion of Plaintiffs’ parking lot.
Throughout the Amended Complaint, Plaintiffs allege that Defendant Zurick manipulated
“local borough connections to harass the Plaintiffs” as “part of a coordinated and calculated
strategy.” Id. at ¶ 35. Defendant Zurick is a member of the civil service commission, which
1 At this stage of litigation, the Court must assume as true the allegations in the Amended
Complaint.
2
testing for appointments and promotions in the Police Department and holding hearings for
suspensions, removal, and reduction in rank of Police.” Am. Compl. at ¶¶ 14, 79 (ECF No. 32).
The first indication of Defendant Zurick’s intentions, Plaintiffs allege, came on August 24, 2020
through an intermediary. Plaintiffs allege that Tom Wargo, a borough zoning officer (“Zoning
Officer”) and non-party to this case, warned Plaintiff Burke that “there were ‘eyes’ on him and
that his neighbor, Defendant Zurick, had ‘deep relationships’ in the Borough, and that Plaintiff
Sean Burke would be wise to give Defendant Zurick what he wanted.” Id. at ¶ 28.
2. Plaintiffs’ Exterior Lights
In October of 2020, Plaintiffs secured the necessary permits to install exterior lighting for
its parking lot that would run from dusk to dawn. The lights were inspected by the borough and
installed by licensed contractors. The next month, Plaintiffs learned for the first time that
Defendant Zurick took issue with the lighting. Disputes over Plaintiffs’ lighting in the coming
months and years are the predicate for many of Plaintiffs claims, and Plaintiffs argue that the
“unexpected and seemingly baseless focus on the exterior lights was pretextual, employed by
[Defendants] to target Plaintiffs into submission and force them to comply with Defendant
Zurick’s demands regarding the [P]roperty.” Id. at ¶ 61.
In November of 2020, Plaintiff Burke was speaking with the Zoning Officer about the
exterior lighting when the Zoning Officer shared that “Defendant Zurick had been complaining
throughout the Borough about the exterior lights.” Id. at ¶ 38. The Zoning Officer also suggested
to Plaintiff Burke around this time that if Plaintiffs “did not give Defendant Zurick what he wanted,
the police were going to get involved.” Id. at ¶ 42. No official complaint was filed with the
borough, however, and the lights operated without further incident until May of 2021.
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the borough’s Chief of Police, Defendant Bachert. Plaintiff Burke contacted Defendant Bachert
shortly thereafter. Defendant Bachert claimed that Plaintiffs’ lighting violated the law and
demanded that all exterior lights be removed from the Property. Plaintiff Burke explained that they
had been inspected and all paperwork was in order, yet “Defendant Bachert responded that he did
not care about any of that and again accused [Plaintiffs] of violating the law.” Id. at ¶ 52.
At 3:00 p.m.—a time at which the lights would not have been illuminated—on May 25,
2021, Defendant Bachert issued the first of several citations to Plaintiffs regarding the lights for
violating Title 18 2709(A)(3) of the criminal code (harassment). The citations alleged that
Plaintiffs “use[d] high powered lights to illuminate [Defendant Zurick’s] property after being
asked several times to focus [its] lights” off of Defendant Zurick’s property. Id. at ¶ 59. Plaintiffs’
conduct, the citations stated, “did harass, annoy, and disturb [Defendant Zurick] engaging in a
pattern of behavior that serve[d] no legitimate purpose,” and noted that Plaintiffs had been
previously warned. Id.
3. Criminal Proceeding
On July 29, 2021, the magisterial district court held a hearing regarding these citations.
Allegedly, the proceeding was filled with inconsistencies and falsehoods against Plaintiffs, which
were revealed in the appeal. Plaintiffs also allege that during the trial, it was established that the
alleged offenses did not occur on the dates or times listed in the citations. In fact, Defendant Zurick
stated that he never saw the lights on during the day, though the citations note they were issued
during the day.
At the conclusion of this proceeding, Plaintiffs were found guilty and they turned off the
lights that allegedly illuminated Defendant Zurick’s property. However, Plaintiffs appealed and
were adjudicated not guilty six months later. In the intervening months, though, Plaintiffs allege
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that they would capitulate to Defendant Zurick’s wishes.
4. Plaintiffs’ Digitized Sign and Defendants’ Intrusions into the Property2
By August 3, 2021 Defendant Base Engineering, Inc. had concluded that, based on
documents and drawings, Plaintiffs exterior lighting did not “extend beyond the property line,”
and “no further evaluation [was] needed.” Id. at ¶ 97. Around this same time, Plaintiffs installed a
digitized sign on the property in accordance with all zoning and code requirements.
In the evening of September 29, 2021, borough police officers Defendant Devers and
Defendant Fritzinger entered Plaintiffs’ property and turned-off the power to Plaintiffs’ recently
installed sign. Defendants Dever and Fritzinger had neither a search nor administrative warrant to
enter the Property. The borough police did not attempt to contact Plaintiffs before entering the
Property, nor did they reach out after the fact. The police never charged Plaintiffs with any crimes
or citations pertaining to the digitized sign. The police report related to this event states that
Defendant Zurick complained that the sign was too bright, and this prompted the intrusion.
After the September 29 incident, disputes over the sign between Plaintiffs and the borough
continued. Plaintiffs received a zoning notice regarding the sign, which they allege was issued at
the direction of Defendant Eric Gratz, the Borough Manager. The Zoning Officer withdrew this
notice, however, after Plaintiffs challenged it and explained to the Zoning Officer how Defendants
Devers and Fritzinger had entered the Property without a warrant and turned off the sign.
At a borough council meeting on October 20, 2021, Defendants Zurick, Bachert, and Gratz
objected to Plaintiffs’ sign and argued that it violated zoning ordinances. Defendant Zurick went
2 In addition to the three trespassing incidents described in this section, Plaintiffs also allege that
Defendant Zurick trespassed and committed a Fourth Amendment violation in so doing on May
25, 2021. Id. at ¶ 54–55. For reasons explained in the Court’s analysis, this event merits little
discussion. Essentially, Plaintiffs plead that they found Defendant standing in their parking lot at
mid-day without connecting this minor intrusion to their other claims.
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helping us out.” Id. at ¶ 112. The Zoning Officer subsequently issued a zoning violation notice
regarding the sign. And on October 29, 2021, responding to an email from Plaintiff Burke about
the sign, Defendant Bachert stated that police would be at the Property nightly to cite Plaintiffs for
any malfunctions, even while conceding that the sign was in compliance with zoning ordinances.
In the hours following another borough council meeting on November 1, 2021 (attended
by Defendants Zurick, Gratz, and Bachert) Defendant Fritzinger once again entered the Property
without a warrant. Upon entering the Property, Defendant Fritzinger inspected the sign’s control
box but found it secured by a lock. Defendant Fritzinger retrieved a set of bolt-cutters and cut the
lock, damaging the control box. In his police report, Defendant Fritzinger stated that Defendant
Bachert instructed him to remove the lock and turn off the sign because it was in violation of
zoning ordinances.
Plaintiffs were once again issued a zoning violation for the sign on November 5, 2021. The
borough withdrew this violation five days later. And on November 10, the Zoning Officer
informed Plaintiffs that their sign and lighting were compliant. Plaintiffs informed Defendants
Bachert, Gratz, and several non-parties that they intended to turn the lights back on which they
had turned off following the initial harassment proceeding. Plaintiff Stella shared that they
intended to turn the allegedly offending lights back on “in ten (10) days and offered an opportunity
to identify any legal basis as to why the lighting should not be resumed.” Id. at ¶ 125. Plaintiffs
received no response, but on November 15, 2021, Defendant Bachert engaged Defendant Base
Engineering, Inc. to conduct a forensic light study on the Property.
On December 3, 2021, the Base Employee Defendants arrived at property to conduct the
light study. They were accompanied by unknown police officers (John Does 1–10). The John Doe
Defendants had no search or administrative warrant to enter the Property. On December 9, the
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retained another firm, Snyder Hoffman, to conduct their own forensic light study in the presence
of the Zoning Officer and Plaintiffs’ counsel. The Snyder Hoffman “report demonstrated that
Defendants Base Engineering and its employees . . . did not utilize proper equipment, locations,
data, or analysis and formulated a faulty conclusion regarding the exterior lighting.” Id. at ¶ 144.
Following the Snyder Hoffman light study, the December 9 zoning violation was withdrawn.
5. Plaintiffs Prevailed in Their Appeal of the Harassment Charges
Plaintiff Burke’s appeal on the criminal harassment charges was resolved in his favor on
January 26, 2022. All charges were dismissed, and he was adjudicated not guilty. This proceeding,
like the trial, revealed inconsistencies, falsehoods, and concerning details such as:
• Defendant Zurick testified that he never filed a complaint with the borough
regarding the lights, contradicting his trial testimony that he had complained every
week from November 2020 through May 2021;
• Instead of filing a formal complaint, Defendant Zurick testified he went directly to
Defendant Bachert;
• Defendant Bachert testified, in contradiction to his trial testimony, that Defendant
Zurick did contact him regarding the lights;
• The Zoning Officer testified that he was pressured by Defendant Bachert to file a
civil complaint against Plaintiffs regarding their lights, even though a complaint
was unjustified since there was no zoning violation; and
• Defendant Bachert attempted to offer altered photographs to support the harassment
charges against Plaintiff Burke.
7
Plaintiffs commenced this lawsuit against Defendants on May 23, 2023, alleging Fourth
Amendment, trespass, and Fourteenth Amendment (due process) violations in addition to a civil
rights conspiracy and state law malicious prosecution. Compl. (ECF No. 1). Plaintiffs filed an
Amended Complaint on August 14, 2023, Am. Compl. (ECF No. 32), following Defendant Base
Engineering, Inc. and Base Employee Defendants’ motion to dismiss the Complaint, ECF No. 25.
On August 28, 2023, Defendants filed each of the three present motions to dismiss. ECF No.s 33–
34, 37.
III. MOTION TO DISMISS STANDARD
Third Circuit courts deploy a three-step analysis when faced with motions to dismiss. First,
we identify “the elements [the] plaintiff must plead to state a claim.” Connelly v. Lane Const.
Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Next, we “identify allegations that, because they are no more than conclusions, are not entitled to
the assumption of truth.” Id. Finally, we assume the veracity of well-pled factual allegations “and
then determine whether they plausibly give rise to an entitlement to relief.” Id.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At the motion to dismiss stage
“facts must be taken as true and a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits.” Phillips
v. Cnty. Of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability
8
Id. (quoting Twombly, 550 U.S. at 556–57 (internal quotation marks omitted)).
IV. DISCUSSION
For the reasons stated below, Defendants’ motions are granted in part and denied in part.
Count I (Fourth Amendment) is dismissed against all Defendants except Fritzinger and Devers.
Counts II and III (state law malicious prosecution and Fourteenth Amendment, respectively) are
dismissed against all Defendants except Bachert. Count IV (federal civil rights conspiracy) is
dismissed against all Defendants except Bachert, Gratz, and Zurick. Finally, Count V (state law
trespass) is dismissed against all Defendants except Fritzinger, Devers, Zurick, Campion, Witman,
Knoll, Cohen, and John Does 1–10.
Plaintiffs’ case may proceed because they have met the “low bar” set for them by the
motion to dismiss standard against the few remaining Defendants, Clinton v. Sec. Benefit Life Ins.
Co., 63 F.4th 1264, 1276 (10th Cir. 2023), and because these Defendants have no established
immunity from suit at this stage of litigation. The Court addresses Defendants’ various claims of
immunity first, then analyzes the merits of Plaintiffs allegation against each Defendant in turn.
A. Immunity
Defendants’ briefing raises several forms of immunity, each requiring separate discussion.
For the reasons that follow, the Court holds that: (1) qualified immunity is denied without prejudice
as to the Officer Defendants, Defendant Bachert, and Defendant Gratz; (2) immunity under the
Political Subdivision Tort Claims Act (“Act”) is denied without prejudice as to Defendant Base
Engineering, Inc. and Base Employee Defendants; and (3) immunity under Noer-Pennington
doctrine is denied without prejudice as to Defendant Zurick.
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“[Q]ualified immunity will be upheld on a 12(b)(6) motion only when the immunity is
established on the face of the complaint.” Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006)
(quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.2001)). “The burden of establishing qualified
immunity falls to the official claiming it as a defense.” Burns v. PA Dept. of Corr., 642 F.3d 163,
176 (3d Cir. 2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). Plaintiffs have
sufficiently alleged an unreasonable violation of their clearly established constitutional rights, as
well as some involvement by each of Defendants who remain in the lawsuit. On the face of the
Amended Complaint, no remaining Defendant’s entitlement to qualified immunity is clear.
Accordingly, remaining Officer Defendants, Defendant Bachert, and Defendant Gratz’s qualified
immunity defense will be denied without prejudice.
2. Immunity Under the Political Subdivision Tort Claims Act
Under the Act, “no local agency shall be liable for any damages on account of any injury
to a person or property caused by any act of the local agency or an employee thereof or any other
person.” 42 PA. STAT. AND CONS. STAT. § 8541 (1980). Employees of local agencies likewise enjoy
immunity to the extent they acted within the scope of their duties “to the same extent as his
employing local agency.” Id. at § 8545. Defendant Base Engineering, Inc. and Base Employee
Defendants are covered by the Act as a local agency and employees of a local agency, respectively.
Plaintiffs correctly point out, however, that the Act contains a pertinent exception for willful
misconduct: when a court determines “that the act of the employee caused the injury and that such
act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections
8545 (relating to official liability generally) . . . shall not apply.” Id. at § 8550.
Whatever determination this Court may make in the future, we are presently bound to the
well-pled facts in the Amended Complaint, which contains sufficient allegations of willful
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immunity under the Act as to Defendant Base Engineering, Inc. and Base Employee Defendants
without prejudice.
3. Noerr-Pennington Doctrine
Defendant Zurick raises Noerr-Pennington immunity, the final form of immunity raised in
the motion to dismiss briefing. Under the Noerr-Pennington doctrine, a party who petitions the
government for redress is generally immune from liability. See Mariana v. Fisher, 338 F.3d 189,
197 (3d Cir. 2003) (quoting A.D. Bedell Wholesale Co. v. Philip Morris Inc., 263 F.3d 239, 250
(3d Cir. 2001)); see Campbell v. Pennsylvania Sch. Boards Ass’n, 972 F.3d 213 (3d Cir. 2020)
(applying Noerr-Pennington immunity doctrine in contexts beyond antitrust). Immunity under this
doctrine also extends to state actors, see id., as Plaintiff pled Defendant Zurick’s status.
Nevertheless, petitioners whose claims were objectively baseless or were intended to abuse a
government process are entitled to no immunity. See id. at 219. This is referred to as the sham
litigation exception, and Plaintiffs argue that it applies in this case. However, the sham litigation
exception is difficult for plaintiffs to establish, see FTC v. AbbVie, 976 F.3d 327, 361 (3d Cir.
2020), and, generally, is better resolved at the summary judgment stage due to its fact-intensive
nature, see FTC v. Shire ViroPharma, Inc., 2018 WL 1401329, at *7 (D. Del. March 20, 2018).
With the foregoing in mind, the Court denies Defendant Zurick’s claim to immunity under Noerr-
Pennington doctrine without prejudice. Defendant Zurick may re-raise his claim of immunity in a
motion for summary judgment, when Plaintiffs are better situated address the sham litigation
exception’s applicability following discovery.
B. Count I - Fourth Amendment
Plaintiffs allege in Count I several Fourth Amendment violations stemming from
Defendants’ “warrantless entry and disconnection of the lighting fixtures” on their property. Am.
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the question of whether the Fourth Amendment has been violated, . . . for an actual trespass is
neither necessary nor sufficient to establish a constitutional violation.” United States v. Katzin, 769
F.3d 163, 175 (3d Cir. 2014).3 The Fourth Amendment guards against unreasonable searches and
seizures. U.S. CONST. amend. IV. Searches and seizures are unreasonable absent a warrant unless
a warrant exception applies. See Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971). To
state a claim for an unreasonable search under the Fourth Amendment, plaintiffs must plead that a
defendant “invaded areas to which the public did not have access and in which there was a
reasonable expectation of privacy (e.g., private offices, storage rooms, and residences).” Free
Speech Coal., Inc. v. Att’y Gen. United States, 825 F.3d 149, 168 (3d Cir. 2016). A claim for
unreasonable seizure is stated when plaintiffs plead “some meaningful interference with . . . [their]
possessory interests in [their] property.” Stone v. Martin, 720 F. App’x 132, 134 (3d Cir. 2017)
(internal quotation omitted).
For various Defendants and events, the Court need not indulge a substantive Fourth
Amendment analysis because a claim is plainly not stated. The Court will address these instances
first.
1. Defendant Zurick’s Alleged Trespass Does Not State a Fourth Amendment
Claim
The Amended Complaint states four separate dates on which alleged violations occurred:
May 25, 2021; September 29, 2021; November 1, 2021; and December 3, 2021. Am. Compl. at ¶¶
54, 101, 115, 134 (ECF No. 32). The May 25, 2021 incident does not state a claim under the Fourth
Amendment because Plaintiffs only allege that “Defendant Zurick was standing on [Plaintiffs’]
3 Plaintiffs label their Count I allegation “Fourth Amendment Trespass,” Am. Comp. at 27 (ECF
No. 32) (emphasis added), but go on to allege unreasonable searches and seizures. The Court
disregards Plaintiffs’ unclear labelling in Count I and construes the Amended Complaint as one
alleging unreasonable searches and seizures under the Fourth Amendment.
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the [P]roperty.” Id. at ¶ 54. Plaintiffs fail to state a Fourth Amendment claim for this event because
they did not satisfactorily plead that Defendant Zurick was a state actor at the time of his trespass.
The Amended Complaint contains one paragraph about this event, which amounts only to an
allegation that Plaintiffs found Defendant Zurick standing in their parking lot at mid-day and asked
him to leave. Id. But even if the Court granted Plaintiffs this point, Plaintiffs still do not allege that
Defendant Zurick violated Plaintiffs’ reasonable expectation of privacy or interfered with a
possessory interest of theirs.
2. Defendants That Did Not Enter Plaintiffs’ Property
Count I fails to state a claim against several Defendants for various reasons. Because
Plaintiffs do not allege that Defendants Penn, Vazquez, Tosado, Krasley, Gratz, or Bachert ever
violated Plaintiffs’ reasonable expectation of privacy or interfered with a possessory interest of
theirs, Plaintiffs have failed to state a Fourth Amendment claim against these Defendants and
Count I is dismissed as to each of them.
Count I is also dismissed as to Defendant Base Engineering, Inc. because Plaintiffs do not
allege Monell liability, and the Court construes a claim against Defendant Base Engineering, Inc.
as a claim against the municipality. A municipality, like [Defendant Base Engineering, Inc.],
“cannot be liable under a theory of respondeat superior or vicarious liability.” M. ex rel. J.M.K. v.
Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004) (citing Monell v. New York Dep’t
of Social Servs., 436 U.S. 658, 691–92 (1978)). “Rather, in order for a . . . [municipality] to be
liable for the violation of a constitutional right under § 1983, the plaintiff must identify a policy or
custom of the entity that caused the constitutional violation.” Id. Plaintiffs identified no such policy
or custom in their Amended Complaint.
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However, Plaintiffs have stated claims for Fourth Amendment violations against
Defendants Fritzinger and Devers for the September 29 and November 1, 2021 events. These
Defendants do not dispute that they entered Plaintiffs’ curtilage without a warrant, but argue that
their presence was only incidental, momentary, and, in any case, privileged under the exigent
circumstances exception. Mem. of Law in Supp. of Officer Def.s’ and Def. Gratz’s Mot. to Dismiss
Pl.s Am. Compl. at 7–9 (ECF No. 37). The Court notes that an “incidental and momentary”
intrusion is at odds with allegedly bolt-cutting locks, vandalizing property, and powering down
exterior lights and signage. Am. Compl. at ¶¶ 2, 101 (ECF No. 32). As for the Officer Defendants’
exigent circumstances argument, an appropriate analysis of this contention is better suited for the
summary judgment stage following discovery. Hamilton v. Radnor Twp., 502 F. Supp. 3d 978,
986 (E.D. Pa. 2020) (The presence of exigent circumstances is fact-specific and “typically . . . not
amenable to resolution on the pleadings alone, unless those pleadings affirmatively demonstrate
the existence of an exception to the Fourth Amendment’s warrant requirement.”) (quoting Tucker
v. Petruzzi, No. 17-1848, 2018 WL 3623766, at *5 (M.D. Pa. June 27, 2018)).
However, the Court dismisses Plaintiffs’ Fourth Amendment violation claim as to the
December 3, 2021 event against Base Employee Defendants and the John Doe Defendant police
officers. Defendants do not dispute that they entered Plaintiffs’ curtilage without a warrant.
Therefore, Plaintiffs had to plead either that Defendants “invaded areas to which the public did not
have access and in which there was a reasonable expectation of privacy,” Free Speech Coal., Inc.,
825 F.3d at 168, or “some meaningful interference with . . . [their] possessory interests in [their]
property,” Stone, 720 F. App’x at 134. Simply put, Plaintiffs had to plead that a search or a seizure
occurred—they failed to do so for the December 3, 2021 event.
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3 and conducted a light study, but says nothing about how those actions constituted a search or a
seizure. Well-pled facts saved the prior two events from dismissal. On September 29, 2021,
Defendants Devers and Fritzinger entered the property and “disconnected the power (seized) to
the lawfully installed digitized sign for Plaintiff Equinox without permission or warrant.” Am.
Compl. at ¶ 101 (ECF No. 32). On November 1, 2021, Defendant Fritzinger again entered the
property and, using bold cutters, “cut the lock [on the control box], damaged the control box, and
seized the sign rendering it inoperable.” Id. at ¶ 119. The Amended Complaint is silent as to how
a light study amounts to a search or a seizure. Granting all inferences in Plaintiffs’ favor, the only
allegation approximating support for a Fourth Amendment violation on December 3, is that the
light study was done “in direct violation of Plaintiffs’ July 2021 notice that Plaintiff Burke” be
present. Id. at ¶ 139. But, first of all, Plaintiffs neglected to provide any more details about this
“notice.” And second, standing alone, this statement would require too many leaps to establish a
reasonable expectation of privacy in the area Defendants entered.
Plaintiffs’ Fourth Amendment claims may proceed against Defendants Fritzinger and
Devers only as to the events of September 29 and November 1, 2021. Plaintiffs’ Fourth
Amendment claims are dismissed against all remaining Defendants and for all other events.
C. Count V - Trespass
“Under Pennsylvania law, ‘trespass’ is defined as unprivileged, intentional intrusion upon
land in possession of another.” United States v. Union Corp., 277 F. Supp. 2d 478, 495 (E.D. Pa.
2003) (citing Reynolds v. Rick’s Mushroom Service, Inc., 246 F. Supp. 2d 449 (E.D. Pa. 2003)).
Plaintiffs have stated a claim for trespass against the following Defendants, who do not dispute
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John Doe Defendants 1–10.4 Count III is dismissed against all other Defendants.
D. Count II - Malicious Prosecution
To survive of motion to dismiss, the complaint must support the following:
(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended
in his favor; (3) the defendant initiated the proceeding without probable cause; (4)
the defendant acted maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.
See Black v. Montgomery Cnty., 835 F.3d 358, 364 (3d Cir. 2016), as amended (Sept. 16, 2016)
(quoting Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007)) (emphasis omitted). “Although
prosecutors rather than police officers are generally responsible for initiating criminal proceedings,
an officer may, however, be considered to have initiated a criminal proceeding if he or she
knowingly provided false information to the prosecutor or otherwise interfered with the
prosecutor’s informed discretion.” Henderson v. City of Philadelphia, 853 F. Supp. 2d 514, 518
(E.D. Pa. 2012) (citing Brockington v. City of Phila., 354 F. Supp. 2d 563, 569 (E.D. Pa. 2005)).
The Court notes the stark disagreement between Plaintiffs and Defendants in interpreting
pled facts around Plaintiffs’ trials.5 Nevertheless, the Court must accept as true well-pled facts in
the Amended Complaint, which contains sufficient material to survive a motion to dismiss as to
Defendant Bachert, who issued the six harassment citations that gave rise to the criminal
proceeding against Plaintiffs. The Amended Complaint alleges that Defendant Bachert
4 The Base Employee Defendants argue that the closely-regulated-industries warrant exception
applies in this case because courts have extended that exception to residential construction. But
this begs at least two questions: (1) is a light study within the domain of construction, and (2) can
this mixed-use property be classified as residential for the purposes of a light study? These
questions raise issues of fact and law that are more appropriately addressed following discovery.
5 On a motion to dismiss, the Court cannot consider Defendants’ argument as to why Defendant
Zurick’s name appears on the citations Defendant Bachert issued or why those citations appear to
have been issued during daylight hours.
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them as “baseless criminal summary citations,” Am. Compl. at ¶ 63 (ECF 32).
However, Count II (malicious prosecution) is dismissed as to all remaining named
Defendants. For Defendants other than Bachert, the only issue that could be considered a close call
is Base Engineering, Inc. and Base Employee Defendants.6 The Court understands Henderson to
extend to employees of a municipality other than police officers, such as, theoretically, Base
Employee Defendants. If Base Engineering, Inc. or its employees “knowingly provided false
information to the prosecutor,” they may be deemed to have “initiated” the criminal proceeding
and be liable for malicious prosecution. Henderson, 853 F. Supp. 2d at 518. The Amended
Complaint alleges that “[t]he Snyder Hoffman report demonstrated that Defendants Base
Engineering and its employees Witman, Campion, Knoll, and Cohen did not utilize proper
equipment, locations, data, or analysis and formulated a faulty conclusion regarding the exterior
lighting.” Am. Compl. at ¶ 144 (ECF No. 32). At worse, however, Plaintiffs’ allegations that
Defendants failed to use proper equipment evinces negligent conduct.
E. Count III - Fourteenth Amendment
To prevail on a fabrication of evidence claim at the dismissal stage, a plaintiff—who was
not convicted during the proceedings at issue—must plead facts showing (1) a reasonable
likelihood that, absent that fabricated evidence, the plaintiff would not have been criminally
charged;7 (2) that the evidence was of such significance that it could have affected the outcome of
6 The Amended Complaint absolves, rather than implicates, Defendant Zurick in Count II. See
Am. Compl. at ¶¶ 58-59 (ECF 32) (stating that Defendant Zurick did not complain of the lights,
and that Defendant Bachert “inexplicably introduced this new element into the situation.”).
7 When defendants prevail in the subject proceedings, they nonetheless have a cause of action to
bring a stand-alone Fourteenth Amendment violation if they can establish that they would not have
been charged but-for the fabricated evidence. Black, 835 F.3d at 371. Such stand-alone causes of
action are narrower than those in which a defendant was convicted. A convicted defendant may
bring an evidence fabrication claim for any evidence that they can establish a causal connection to
their conviction, id. at 371–72, which includes evidence presented at trial. An unconvicted
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See Black, 835 F.3d at 372; Boseman v. Upper Providence Township, 680 Fed.Appx. 65, 69–70
(3d Cir. 2017).
The first prong, reasonable likelihood, raises an issue of causation that Plaintiffs fail to
meet for nearly all Defendants. The reasonable likelihood prong requires a plaintiff to show that
they would not have been charged but-for the fabricated evidence. Black, 835 F.3d at 371–72. At
most, and explained in more detail below, this limits Plaintiffs’ Fourteenth Amendment claim to
Defendant Bachert. Therefore, Count III (Fourteenth Amendment - fabrication of evidence) is
dismissed as to all other Defendants. To the extent that these Defendants offered evidence against
Plaintiffs, according to the Amended Complaint, their actions were either irrelevant or too
attenuated from the charging decision to be liable under Black. Count III is also dismissed against
Defendant Zurick because, as discussed above, he did not report to police that he was being
harassed by Plaintiffs’ lights.
Defendant Bachert issued the criminal citations for harassment that directly caused the
criminal proceedings against Plaintiffs. Am. Compl. at ¶¶ 62, 65. In a simple criminal matter such
as this was, the citations and Defendant Bachert’s testimony regarding the circumstances
surrounding their issuance would certainly affect the outcome of the proceeding. Much of the
parties’ dispute, accordingly, lies around Black’s third prong: whether the evidence was fabricated,
not merely incorrect or simply disputed. See Black, 835 F.3d at 372. Accepting the Amended
Complaint’s factual allegations as true, Count III will survive against Defendant Bachert. Plaintiffs
have pled that these citations were “orchestrated to pressure the Plaintiffs into compliance with
Defendant Zurick’s demands,” Am. Compl. at ¶ 67 (ECF No. 32), and that “Defendant[] Bachert
defendant, however, is limited to evidence used to charge them and excludes trial evidence. See
id. at 371.
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nor was any evidence or testimony produced that the lights were not installed for a legitimate
purpose,” Am. Compl. at ¶ 69. These allegations meet the “low bar” required to survive a motion
to dismiss. See Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1276 (10th Cir. 2023). The
Court notes the Borough Defendants’ explanation for this apparent inconsistency, Mem. of Law
in Supp. of Officer Def.s’ and Def. Gratz’s Mot. to Dismiss Pl.s’ Am. Compl. at 17 (ECF No. 37),
but on a motion to dismiss, “it is the allegations within the four corners of the complaint that
govern.” See Regent Ins. Co. v. Strausser Enterprises, Inc, 814 F. App’x 703, 708 (3d Cir. 2020)
(citing I.C.D. Indus., Inc. v. Fed. Ins. Co., 879 F. Supp. 480, 488 (E.D. Pa. 1995)).
F. Count IV - Civil Rights Conspiracy
To state a claim for civil rights conspiracy under § 1983, “a plaintiff must establish (1) the
existence of a conspiracy involving state action; and (2) a deprivation of civil rights in furtherance
of the conspiracy by a party to the conspiracy.” Rosembert v. Borough of E. Lansdowne, 14 F.
Supp. 3d 631, 647 (E.D. Pa. 2014) (citing Gale v. Storti, 608 F.Supp.2d 629, 635 (E.D. Pa. 2009)).
Critically, a plaintiff must “allege that there was an agreement or meeting of the minds to violate
his constitutional rights.” Id. Because direct evidence of conspiracies is rare, plaintiffs typically
rely on circumstantial inferences at the dismissal stage. Capogrosso v. The Supreme Ct. of New
Jersey, 588 F.3d 180, 184–85 (3d Cir. 2009) (citing Crabtree v. Muchmore, 904 F.2d 1475, 1480–
81 (10th Cir. 1990)). For the reasons stated below, Count IV (civil rights conspiracy) will survive
as to Defendants Zurick, Bachert, and Gratz, but is dismissed as to all other Defendants.
1. Defendants Zurick, Bachert, and Gratz
The Amended Complaint states a claim for conspiracy between Defendants Zurick, Gratz,
and Bachert. And for the purposes of Count IV, the Court agrees with Plaintiffs that Defendant
Zurick was a state actor. A private citizen acts under color of law when they are a “willful
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right. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383
U.S. 787, 794 (1966)). A private citizen’s conduct rises to “joint activity with the government”
when they conspire with the government to violate federally protected rights. See Webber v. First
Student, Inc., 928 F. Supp. 2d 1244, 1258–59 (D. Or. 2013) (citing Franklin v. Fox, 312 F.3d 423,
441 (9th Cir. 2002)).
Defendant Zurick is a member of the civil service commission, which, according to the
Amended Complaint, oversees the Fountain Hill Police Department (of which Defendant Bachert
is the Chief of Police) including the development of “qualification and testing for appointments
and promotions in the Police Department and holding hearings for suspensions, removal, and
reduction in rank of Police.” Am. Compl. at ¶¶ 14, 79 (ECF No. 32). Taken as true, these
allegations paint the civil service commission as holding a great deal of power and influence over
individual officers in the Fountain Hill Police Department like Defendant Bachert. Indeed,
Plaintiffs allege that Defendants Bachert and Gratz were acting “under the direction or influence
of Defendant Zurick, for [their] own convenience and personal gain.” Id. at ¶ 171. Each of the six
citations that Defendant Bachert issued in this case were prompted by Defendant Zurick, id. at ¶
62, and each was later thrown out following appeal, id. at ¶ 146. The Court grants in Plaintiffs’
favor, at this early stage of litigation, an inference that Defendant Zurick’s position on the civil
service commission encouraged Defendants Bachert and Gratz to conspire with Defendant Zurick
to violate Plaintiffs’ rights and meet Defendant Zurick’s personal aims in his property dispute with
Plaintiffs.
The Amended Complaint likewise states a claim under Count IV against Defendant Gratz.
Plaintiffs’ factual allegations against Defendant Gratz boil down to (1) he directed a zoning notice
be issued to Plaintiff Stella by the Zoning Officer, id. at ¶ 107, (2) he participated in borough
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110–12, 115 and (3) he was copied on an email requesting a light study be done, id. at ¶¶ 130–34.
Neither (1) nor (3) sustain Plaintiffs’ claims,8 but Defendant Gratz’s alleged active participation
in the October 20 and November 1, 2021 council meetings, combined with other well-pled facts
in the Amended Complaint, give rise to a circumstantial inference of conspiracy between
Defendants Gratz and Bachert. During the October 20 meeting, Plaintiffs allege that Defendant
Gratz urged the council President to publicly support continued action against Plaintiffs. Id. at ¶
111. Although Plaintiffs did not attend the November 1 borough meeting, they pled facts that give
rise to a circumstantial inference of conspiracy. The Amended Complaint alleges that Defendants
Zurick, Gratz, and Bachert were in attendance from 7:00 to 7:50 p.m. and that approximately ten
minutes after the meeting’s end, Defendant Fritzinger entered Plaintiffs’ property and cut off the
sign’s control box upon Defendant Bachert’s instructions to do so. Taken together, and accepted
as true, these allegations meet the plausibility standard put to Plaintiffs at this early stage.
2. All Remaining Defendants
Although the Court proceeds with caution “in any pre- trial [sic] disposition of conspiracy
allegations in civil rights actions, the rule is clear that allegations of a conspiracy must provide
some factual basis to support the existence of the elements of a conspiracy: agreement and
concerted action.” Capogrosso, 588 F.3d at 184–85. Plaintiffs failed to plead any facts from which
the Court can infer a meeting of the minds to violate their constitutional rights, and Count IV (civil
rights conspiracy) is accordingly dismissed against all Defendants except Bachert, Gratz, and
Zurick.
8 Plaintiff does not contend that the zoning notices violated his Fourth or Fourteenth Amendment
rights. Also, being copied on an email is an action taken by another person over which one has no
control. Obviously, such a fact is insufficient to evince an intention to conspire to violate another’s
constitutional rights.
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Officer Defendants or Base Employee Defendants. Regarding the Officer Defendants, there is no
sentence in the Amended Complaint—aside from legal conclusions—that even suggests these
Defendants conspired to violate Plaintiffs’ constitutional rights. As discussed above, there are not
even details regarding what, if any, involvement that Officer Defendants (other than Defendants
Fritzinger and Devers) had in these incidents.9 Although the Fourth Amendment claim against
Defendants Fritzinger and Devers survives the motions to dismiss, the Amended Complaint
contains no factual allegations from which the Court can infer that they conspired to violated
Plaintiffs’ constitutional rights. Instead, the Amended Complaint only includes legal conclusions
such as the following:
Defendant Zurick was, thus, acting under color of state law because he acted in
concert with Defendants Bachert and the Police Officers and engaged in a state-run
conspiracy with the local state-actors Defendants Bachert, all Defendant Officers,
and Defendant Gratz and John Does. All of these Defendants directed illegal entry
and illegally entered Plaintiffs’ property at issue without consent or a warrant.
Am. Compl. at ¶ 92 (ECF No. 32). Such bald legal conclusions do not meet the pleading standard.
As to Base Employee Defendants, the factual allegations are only slightly better but still
far from stating a claim for civil rights conspiracy. Essentially, Plaintiffs pled that these Defendants
arranged to conduct a light study at the request of the municipality and carried out that light study.
Id. at 131–34.10 Although Plaintiffs go on to conclude that the light study “was initiated by
Defendant Bachert in order to substantiate the harassment charges,” id. at 135, there is no
indication that the Base Employee Defendants shared Defendant Bachert’s alleged intention.
9 Though, incidentally, Plaintiffs do plead that Defendant Tosado filed a police report when
Defendant Zurick contacted him following the brief interaction between himself and Plaintiff
Burke on May 25, 2021. Am. Compl. at ¶ 55.
10 Plaintiffs also plead that Base Employee Defendants conducted the light study improperly. Id.
at ¶¶ 141, 144. They do not, however, allege any underhanded or conspiratorial intent. Id.
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Devers, Vazquez, Tosado, Krasley, Witman, Campion, Knoll, and Cohen.
V. CONCLUSION
For the reasons set out in this memorandum, the Court grants in part and denies in part each
of Defendants’ motions to dismiss. An appropriate order follows.
BY THE COURT:
/s/ John M. Gallagher
JOHN M. GALLAGHER
United States District Court Judge
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