Stevens v. Sullum

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN STEVENS, :

Plaintiff : CIVIL ACTION NO. 3:20-1911

Vv. :

(JUDGE MANNION)

JESSI SULLUM, et al., :

Defendants :

MEMORANDUM

On October 16, 2020, Plaintiff John Stevens (“Plaintiff or “Stevens’”)

filed a complaint in this District, (Doc. 1), asserting various claims against

Lackawanna County’s District Attorney Mark Powell, Assistant District

Attorney Judy Price, Detective Chris Kolcharno, Detective Michelle Mancuso □

(collectively, the “DA Defendants’), Jessi Sullum (“Sulium”), and

Lackawanna County. Plaintiff alleges in his complaint claims for: malicious

prosecution (Count |), abuse of process (Count Ii), false arrest (Count □□□□□

and false imprisonment (Count IV) under 42 U.S.C. §1983, conspiracy to

violate his civil rights (Count V) under 42 U.S.C. §1985, and malicious

prosecution (Count VI), abuse of process (Count VII), and _ tortious

interference with contractual relations (Count VIII) under state law." Plaintiff

1 On January 8, 2021, the DA Defendants and Lackawanna County

filed a motion for protective order requesting a stay of discovery pending a

resolution of this motion to dismiss. (Doc. 16). In its opinion denying the

thereafter filed an amended complaint on December 15, 2020 asserting the

same claims. (Doc. 9).

Pending before the Court are two separate motions to dismiss

Plaintiffs complaint for failure to state a claim upon which relief can be

granted, filed on behalf of defendant Sullum, the DA Defendants, and

Lackawanna County. (Docs. 11, 13). Viewing the evidence in a light most

favorable to the non-moving party, the Court wiil: DENY the DA Defendants’

motion to dismiss as to Counts |, Ill and IV; DENY defendant Sullum’s motion

to dismiss as to Count VI; DENY defendant Poweil’s motion to dismiss as to

Count Vill; and GRANT the defendants’ motions to dismiss as to the

remaining Counts.

i. BACKGROUND

Plaintiff John Stevens is a chiropractor operating a practice in

Lackawanna County, Pennsylvania. In January 2018, defendant Sullum

initiated an online conversation with Stevens through Facebook private

messenger, which continued over the course of several months. On or about

March 21, 2018, defendant Sullum scheduled and attended an appointment

motion for protective order, this Court also dismissed several claims with

prejudice including: (1) Plaintiffs claims under §1983 against the DA

Defendants to the extent they were asserted against them in their official

capacities; (2) Plaintiffs claims for punitive damages against Lackawanna

County and the DA Defendants in their official capacities; and (3) Plaintiff's

claims for violation of his civil rights under the 5" Amendment. (Doc. 23 at

8).

with Stevens for chiropractic treatment at Steven’s office. Following the

March 21, 2018 visit, the online conversation between the Plaintiff and

Sullum continued, which Plaintiff claims became more personal and

culminated in Sullum requesting a personal massage from Stevens.

Although his chiropractic office was closed for the day, Stevens agreed to

provide a one-on-one session to Sullum and Sullum arrived at Stevens’ office

around 1:00 p.m. on March 27, 2018. Plaintiff claims that “[o]nce inside

Plaintiffs chiropractic office, Sullum [] asked to take clothes off,” which

apparently was “the second time that Sullum unilaterally mentioned taking

her clothes off.” After removing her clothes and lying on the massage table,

Sullum allegedly “made several suggestive gestures, including touching

Plaintiff's thigh,” after which Sullum and Stevens engaged in sexual activities.

After leaving Stevens’ office around 1:50 p.m., Sullum drove back

towards her office at Mastri Law LLC and, while in route, purportedly called

both her boss, attorney Dominic Mastri, and her aunt, Judge Janine Edwards,

and “falsely alleged that she was sexually assaulted.” According to the

Plaintiff, “[s]everal hours later, Sullum contacted Defendant Detective Chris

Kolcharno ... and alleged that Plaintiff ‘became increasingly sexually

aggressive while massaging her.” It is further alleged that during this call

with Kolcharno, Sullum claimed that Stevens “held [Sullum] down,” “told her

that he wanted oral sex,” and pressured her to the point where Sullum

performed sexual acts “to placate him.” In addition, although Sullum had

apparently informed Kolcharno that she had sent private messages to the

Plaintiff prior to the incident, Plaintiff claims that Sullum “concealed the fact

that she told Plaintiff that he was ‘hot’ and that Sullum repeatedly asked to

take her clothes off.”

On the same day of the incident, after the call between Sullum and

Koicharno, defendant Kolcharno and Deputy District Attorney Mariclare

Hayes applied for a search warrant to Plaintiff's chiropractic office and served

Plaintiff with a subject warrant at his home. The next day, however, Plaintiff

provided copies of the messages exchanged between Plaintiff and Sullum to

defendant Kolcharno and Mariclare Hayes and vehemently denied any

wrongdoing, claiming instead that his relations with Suillum were consensual.

According to Plaintiff, “Defendants intentionally disregarded the

text/Facebook messages” between Stevens and Sullum “because it did not

fit the narrative that they were trying to construct and were directed by

Defendants Powell and Price to intentionally omitt [sic] the messages from

all investigation reports and affidavits generated in this case.”

On March 29, 2018, defendants Kolcharno and Mancuso prepared an

affidavit of probable cause for Plaintiffs arrest, which Plaintiff argues

improperly omitted certain exculpatory facts that were known to the DA

Defendants and remained unfiled for almost eight months. During the roughly

eight-month period between the incident and the date the DA Defendants

filed the affidavit of probable cause, November 26, 2018, the DA Defendants

conducted an investigation that the Plaintiff claims only produced “drunk

messages” from Sullum to Stevens and messages in which Sullum told

Plaintiff that he was “so hot.” Nevertheless, Plaintiff asserts that the

defendants filed the affidavit of probable cause without making any changes

to the initial draft from March 2018, “omitting Sullum’s provocative

exculpatory text messages to Plaintiff’ and “substantial evidence of ...

Sullum’s[] own unreliability” after Sullum’s aunt, Judge Janine Edwards,

“prodded Defendants Powell and Price to continue their ‘investigation.” On

November 26, 2018, a warrant was issued for Stevens’ arrest, after which

Stevens turned himself in to the police and was “in custody for several hours

before being permitted to leave.”

Eventually, Stevens’ case was assigned to Deputy District Attorney

Sara Varela. In notes written by Varela on January 4, 2019, the DDA stated

that she had “expressed to Judy Price that she had serious issue with victim{]

[Sullum’s] credibility” as the District Attorney's Office had “multiple police

reports documenting incidents in which victim has lied to police.” Varela

further indicated that defendant Price had told her that Price and defendant

Powell had planned to send Sullum to a rehabilitation facility for alcoholism

and PTSD so as to “explain [Sullum’s] lies to the police,” and that they could

manufacture a diagnosis of PTSD for Sullum in order to “salvage victim['s]

credibility” as Sullum had not been diagnosed with PTSD. A preliminary

hearing was held on February 5, 2019, during which testimony was

presented, including testimony from defendant Sullum, and the matter was

“bound over for further discussion.” On March 20, 2019, Plaintiff was formally

charged with various counts of sexual assault. In addition, Plaintiff claims

that defendant Powell “personally contacted the Pennsylvania Office of

Enforcement and Investigation in an effort to suspend Plaintiff's chiropractic

license,” whereafter Plaintiffs license was eventually suspended.

On May 20, 2019, Plaintiff alleges that defendant Kolcharno

interviewed Sullum’s employer, Anthony Mastri, and that Mastri claimed

Sullum had twice called her aunt on the day of the alleged assault and

expressed interest primarily in hiring a civil attorney to sue Plaintiff for

monetary damages. When Kolcharno attempted to speak with Sullum’s aunt

regarding this potential issue, however, Sullum’s aunt allegedly “refused to

speak with Detective Kolcharno.” On July 21, 2019, the Lackawanna District

Attorney’s Office filed a motion for “nolle prosequi’ dismissing the case

against Plaintiff. The Plaintiff argues in his complaint, filed on October 16,

2020, that “Sullum’s allegations were nothing more than a means to file a

frivolous lawsuit for monetary gain” and that the DA Defendants’ efforts to

generate false evidence, suspend Plaintiff's chiropractic license, and

prosecute Stevens while there remained clear exculpatory evidence

supporting his innocence was malicious and in violation of his constitutional

rights.

On December 30, 2020, the defendants filed motions to dismiss

Plaintiff's §1983, §1985, and state law claims. This Court has jurisdiction over

this action pursuant to 28 U.S.C. §§1331 and 1343, and it can exercise

pendent jurisdiction over the state law claims under 28 U.S.C. §1337. Venue

is proper in this district. The Court will thus turn to the merits of Plaintiff's

claims.

Hl. STANDARD

The defendants’ motions to dismiss are brought pursuant to the

Federal Rule of Civil Procedure Rule 12(b)(6). This rule provides for the

dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The moving party

bears the burden of showing that no claim has been stated, Hedges v. United

states, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only

if, accepting ail of the facts alleged in the complaint as true, the plaintiff has

failed to plead “enough facts to state a claim to relief that is plausible on its

face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating “no

set of facts” language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The facts alleged must be sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for

enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” of necessary elements of the plaintiff's cause of action. Id. at 556.

Furthermore, in order to satisfy federal pleading requirements, the plaintiff

must “provide the grounds of his entitlement to relief,” which “requires more

than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d_ Cir. 2008) (brackets and quotations marks omitted) (quoting

Twombly, 550 U.S. at 555).

In considering a motion to dismiss, the court generally relies on the

complaint, attached exhibits, and matters of public record. Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider

“undisputedly authentic document{[s] that a defendant attaches as an exhibit

to a motion to dismiss if the plaintiff's claims are based on the [attached]

documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are

alleged in the complaint and whose authenticity no party questions, but which

are not physically attached to the pleading, may be considered.” Pryor v.

Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). The court,

however, may not rely on other parts of the record in determining a motion

to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994).2

2 Generally, the court should grant leave to amend a complaint before

dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002): Shane v. Fauver,

213 F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is

justified only on the grounds of bad faith, undue delay, prejudice, or futility.”

Aiston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

lil. DISCUSSION

The Plaintiff raises eight separate causes of action, including: (I)

malicious prosecution under §1983 against all defendants; (Il) malicious use

and abuse of process under §1983 against all defendants; (Ill) false arrest

under §1983 against defendants Koicharno, Mancuso, and Sullum; (IV) false

imprisonment under §1983 against defendants Kolcharno, Mancuso, and

Sullum; (V) conspiracy to violate civil rights under §1985 against all

defendants; (VI) common law malicious prosecution against defendant |.

Sullum; (VII) common law malicious use and abuse of process against

defendant Sullum; and (VIII) tortious interference with employment and

economic advantage against defendant Powell. The Court will address each

claim individually.

A. Claims Under 42 U.S.C. §1983

Plaintiff raises four separate claims under Section 1983 against each

of the various defendants. These include claims for malicious prosecution,

malicious abuse of process, false arrest, and false imprisonment. Section

1983 authorizes redress for violations of constitutional rights and provides in

relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ...

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress...

42 U.S.C. § 1983. Thus, to establish a violation of §1983, a plaintiff must

demonstrate that the challenged conduct was committed by a person acting

under color of state law and deprived the plaintiff of rights, privileges, or

immunities secured by the Constitution or laws of the United States. Lake v.

Arnold, 112 F.3d 682, 689 (3d Cir. 1997). By its terms, Section 1983 does

not create a substantive right, but merely provides a method for vindicating

federal rights conferred by the United States Constitution and the federal

statutes that it describes. Baker v. McCoilan, 443 U.S. 137 (1979): see also

Hart v. Tannery, 2011 WL 940311 (E.D. Pa. Mar. 14, 2011).

Plaintiffs raises his four claims under Section 1983 against the DA

Defendants, defendant Sullum, and Lackawanna County respectively. The

Court will view each of these claims separately for the different defendants.

a. Section 1983 claims against DA Defendants

As a threshold issue pertaining to each of Plaintiff's §1983 claims

against the DA Defendants, the DA Defendants argue that Plaintiffs claims

are precluded as the DA Defendants are entitled to immunity from

prosecution. For those acting “under cover of law,” the doctrine of immunity

embodies the “right not to stand trial,” In re Montgomery County, 215 F.3d

367, 373 (3d Cir. 2000) (citing Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)),

and may be properly raised in a Rule 12(b)(6) motion to dismiss, Kulwicki v.

10

Dawson, 969 F.2d 1454, 1461-62 (3d Cir. 1992). Generally, immunity takes

two forms: absolute immunity and qualified immunity.

To qualify for absolute immunity, government actors must show that |

they were functioning as the State's advocate when performing the

challenged actions.

2006). This inquiry focuses on “the nature of the function performed, not the |

identity of the actor who performed it.” Light v. Haws, 472 F.3d 74, 78 (3d |

Cir. 2007) (quoting Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001)). Under |

this functional approach, a prosecutor enjoys absolute immunity for actions |

performed in a judicial or “quasi-judicial” capacity. Giuffre v. Bissell, 34 F.3d |

1241, 1251 (3d Cir. 1994) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

(1976)); Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 1989). Therefore,

absolute immunity attaches to actions “intimately associated with the judicial

phases of litigation,” but not to administrative or investigatory actions

unrelated to initiating and conducting judicial proceedings. Giuffre, 31 F.3d

1251 (quoting Imbler, 424 U.S. at 430) (internal quotation omitted); see

aiso Rose, 871 F.2d at 346 (contrasting the prosecutor's “quasi-judicial” role

from his “administrative/investigative” role). The key question is thus whether

it is clear that the government actor was performing “the advocate's role in |

evaluating evidence and interviewing witnesses as he prepares for trial,” or

if he was performing the type of conduct more closely aligned with the

ordinary work performed by police, conducting investigatory or administrative

work “before he has probable cause to have anyone arrested.” Rivera-

11

Guadalupe v. City of Harrisburg Bureau of Police, 2020 WL 4206209, at *4

(M.D. Pa. July 22, 2020) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 275-

£6 (1993)),; see also [T]he

Supreme Court [has] held absolute immunity does not extend to the

prosecutorial function of giving advice to the police prior to an arrest or |

indictment.”).

“Prosecutors [and officers] who are not entitled to absolute immunity

from a plaintiff's claims may nonetheless be entitled to qualified immunity” as

they are shielded from suit when performing “discretionary functions’ if their

conduct did not violate a “clearly established statutory or constitutional right[]

of which a reasonable person would have known.” Yarris v. Cty. Of

Delaware, 465 F.3d 129, 139 (3d Cir. 2006): Wilson v. Layne, 526 U.S. 603.

609 (1999): see also Reichle v. Howards, 566 U.S. 658, 664 (2012) |

(“Qualified immunity shields government officials from civil damages liability |

unless the official violated a statutory or constitutional right that was clearly |

established at the time of the challenged conduct.”). Qualified immunity, like |

absolute immunity, provides not only a defense to liability, but “immunity from |

suit.” Hunter v. Bryant, 502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 |

U.S. 511, 526 (1985). It is, however, “generally unwise to venture into a |

qualified immunity analysis at the pleading stage as it is necessary to |

develop the factual record in the vast majority of cases.” Newland_v. |

Reehorst, 328 F. App'x 788, 791 n.3 (3d Cir. 2009); but see Campeggio v. |

12

(noting that as qualified immunity is an immunity from suit, the Supreme

Court has “repeatedly ... stressed the importance of resolving immunity

questions at the earliest possible stage in litigation” (quoting Pearson v.

Callahan, 555 U.S. 223, 231-32 (2009))).

To determine whether a defendant is entitled to qualified immunity,

courts may analyze two factors: (1) whether the plaintiff has shown facts that

make out a constitutional rights violation, and if so, (2) whether those rights

were “clearly established” at the time of the incident. But see Pearson v.

Callahan, 555 U.S. 223, 232-36 (2009) (finding that use of this two-step

analysis, set forth in Saucier v. Katz, 533 U.S. 194 (2001), was no longer

mandatory, but could be employed at the court’s discretion). The court,

however, is “required to consider whether, under the factual scenario of this

case, the officers were reasonable to believe that their actions did not violate

the [plaintiff's] clearly established rights.” Perez v. Borough of Berwick, 507

F. App’x. 186, 192 (3d Cir. 2072).

Absolute and qualified immunity constitute affirmative defenses.

Therefore, courts may only grant a 12(b)(6) motion to dismiss based on

immunity if such immunity “clearly appear on the face of the complaint.”

Rivera-Guadalupe, 2020 WL 4206209, at *4 (quoting Wilson v. Rackmill, 878

F.2d 772, 776 (3d Cir. 1989)); see also

(“a defendant must show

that the conduct triggering absolute immunity ‘clearly appear[s] on the face

of the complaint” (citing Fogle v. Sokol, 957 F.3d 148, 161 (3d Cir. 2020))).

13

In the current stage of this litigation, however, there remain clear

material issues of fact on the face of the complaint as to whether the nature

of the steps taken by defendants Powell and Price during the periods

between the initial incident, the filing of the affidavit of probable cause, and

the filing of official charges against Plaintiff were investigative or

prosecutorial in nature or if the DA Defendants reasonably believed their

actions did not violate the Plaintiff's constitutional rights. Though the Court

may recognize that there are established rights under the Constitution to

protect against malicious prosecutions or seizures without probable cause,

whether the Plaintiff's rights were thus violated in the current matter requires

further fact discovery. As such, it would be improper to make a clear

determination at this point as to whether absolute or qualified immunity

precludes the Plaintiff's Section 1983 claims as to the DA Defendants.* The

Court must therefore look to the claims set forth by Plaintiff in the complaint

to determine whether he has pled “enough facts to state a claim to relief that

is plausible on its face.” Twombly, 550 U.S. at 544.

3 The ability to litigate claims against government actors may reflect a

means to prevent abuses of authority, though there are “several checks other

than civil litigation to prevent abuses of authority.” Burns, 500 U.S. at 496.

One of the most important checks, however, the judicial process, will not

always preclude prosecutorial indiscretions, particularly in instance, such as

here, where a suspect is not eventually prosecuted as the actions of the

government actors are not subjected to the “crucible of the judicial process.”

Id. (quoting Imbler, 424 U.S. at 440).

14

i. Malicious Prosecution

To prove a Fourth Amendment malicious prosecution claim, a plaintiff

must show: “(1) the defendant initiated a criminal proceeding; (2) the criminai

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.” Curry v. Yachera, 835 F.3d 373, 379

(3d Cir. 2016) (quoting Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007));

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

The Plaintiff alleges that the initiation of criminal proceedings by the

DA Defendants, which included filing various charges involving sexual

crimes,* was commenced without probable cause and with malice, and

resulted in Plaintiff's arrest. The DA Defendants, however, argue that a claim

for malicious prosecution cannot be sustained as even though the criminal

proceedings against Plaintiff were dismissed after the filing of a motion for

nolle prosequi, the proceedings “did not end in the Plaintiff's favor.” (Doc. 12

at 10).

4 The charges filed by the Lackawanna County District Attorney’s

Office against Plaintiff included: deviate sexual intercourse by forcible

compulsion and indecent assault without consent of another in violation of

18 Pa. C.S.A. §3123a(A)(1); indecent assault by forcible compulsion in

violation of 18 Pa. C.S.A. §3123 a(A)(2); unlawful restraint in violation of 18

Pa. C.S.A. §2902 a(A)(1); and simple assault in violation of §2701(a)(1) of

the Pennsylvania Crimes Code.

15

it has been established in the Third Circuit that while “a grant of nolle

prosequi can be sufficient to satisfy the favorable termination requirement for

malicious prosecution, not all cases where the prosecutor abandons criminal

charges are considered to have terminated favorably.” Donahue v. Gavin,

280 F.3d 371, 383 (3d Cir. 2002) (quoting Hilfirty v. Shipman, 91 F.3d 573,

579-80 (3d Cir. 1996)). Instead, a decision by the government to file a motion

for nolle prosegui abandoning criminal charges “signifies termination of

charges in favor of the accused only when their final disposition is such as

to indicate the innocence of the accused.”

(citation omitted). Nevertheless, the court may look beyond the nolle

prosequi order itself “to any other maiter in the record ... as to why the motion

was filed or granted.” Spiess v. Pocono Mountain Reg'l Police Dep't, 2013

WL 1249007, at *12 (M.D. Pa. Mar. 26, 2013) (quoting DiFronzo v. Chiovero,

406 F. App'x 605, 609 (3d Cir. 2011)); see also Kossler v. Crisanti, 564 F.3d

181, 187-94 (3d Cir, 2009) (district courts must conduct a “fact-based inquiry”

to consider, in conjunction with the no/le prosequi, “underlying facts” and

“particular circumstances” as to why the order was filed).

To make their argument, the DA Defendants reference the direct

language within the no/le prosequi order, which states, in part, that “the

offenses contained in the Criminal Information filed in the above-referenced

captioned matter are hereby no/le prossed pursuant to Pa.R.Crim.P. 585.”

16

(Doc. 27-1 at 1).° The motion supporting the order, however, goes on to state

that “[a]fter criminal charges were filed [against Stevens], the investigative

team has both uncovered and been made aware of additional information

which caused substantial concern about the continued viability of this case

moving forward ... [and] have developed and expressed significant doubt

and serious questions about the complete accuracy and credibility of the

underlying allegations.” (Id. at 2).

Unlike cases where dismissal is proper as a motion and order for nolle

prosequi fail to indicate why charges were dismissed or that the defendant

was in fact innocent, see DiFonzo, 406 F. App’x. at 609 (nolle prosequi

insufficient to signify termination in favor of accused where it “says nothing

> Generally, “a district court ruling on a motion to dismiss may not

consider matters extraneous to the pleadings.” In re Burlington Coat Factory,

114 F.3d 1410, 1426 (3d Cir. 1997) (citing Angelastro v. Prudential-Bache

sec. inc., 764 F.2d 939, 944 (3d Cir. 1983)). Courts, however, may consider

any “document integral to or explicitly relied upon in the complaint ... without

converting motion to dismiss into one for summary judgment.” Id. (citation

omitted); In re Donald Trump Casino Sec. Litig., 7 F.3d 357, 368 n.9 (3d Cir.

1993) (“a court may consider an undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims

are based on the document.”). The Court may thus look to the nolle prosequi

order and motion in coming to its determination as they were integral to and

relied upon in the complaint. (Doc, 27-1). The Court also recognizes that the

DA Defendants filed a copy of the order and motion in its initial motion to

dismiss, (Doc. 6-2), but included only the order in their follow-up filing, (Doc.

12-2). Though this may have been an accidental omission, the Court will rely

on the exhibit filed by the Plaintiff as it includes the entire document. The

Court, however, will not review further evidence that extends outside the

bounds of a 12(b)(6) review that would convert the defendants’ motions to

dismiss to motions for summary judgment. See (Doc. 29 at 2).

17

as to why the motion was filed or granied”), the motion here provides further

clarity as to the DA Defendants’ reasoning. Though there is no unequivocal

statement that Plaintiff was innocent of the crimes of which he was charged,

the motion, following an extended investigation, indicates that the DA

Defendanis felt the allegations made against Stevens were questionable to

the point that they could be inaccurate or not credible. Therefore, the facts

surrounding the nolle prosequi and the motion itself support a finding that the

claims against the Plaintiff were terminated in his favor. Compare DiFronzo,

406 F. App’x. at 609 with Geness v. Cox, 902 F.3d 344, 356 (3d Cir. 2018)

(nolle prosequi was a favorable termination as the abandonment of charges

for “insufficient evidence” unquestionably provided “an indication that the

accused is actually innocent of the crimes charged”) and Spiess, 2013 WL

1249007, at_*13 (nolle prosequi was favorable termination where, upon

continued investigation, the government determined that the victim falsely

testified about “a material matter’ and the case therefore “lack[ed]

prosecutorial merit’).

As the DA Defendants do not raise other objections to the Plaintiff's

malicious prosecution claim, the Court will deny DA Defendants’ motion to

dismiss this claim without further delving into the sufficiency of the other

elements.

ii. Malicious Use and Abuse of Process

“While malicious prosecution ‘has to do with the wrongful initiation of

civil process,’ abuse of process ‘is concerned with perversion of process after

18

litigation has begun.” Gebhart v. Steffen, 574 F. App'x 156, 160 (3d Cir.

2014) (quoting U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 394 (3d

Cir. 2002)). In other words, a plaintiff must show that the criminal action “was

initiated legitimately and then ‘perverted.” Bristow _v. Clevenger, 80

F.Supp.2d 421, 431 (M.D. Pa. 2000). If, however, a “process is wrongfully

initiated and thereafter perverted, both torts lie.” Jennings v. Shuman, 567

F.2d 1213, 1218 (3d Cir, 1977); see also Gen. Refractories Co. v. Fireman's

Fund Ins. Co., 337 F.3d 297, 307-08 (3d Cir. 2003) (providing analysis of

what constitutes a “perversion” of the legal process, which leads to liability

where the application of a legal process is so “lacking in justification as to

lose its legitimate function as a reasonably justifiable litigation procedure”

(quoting Nienstedt v. Wetzel, 133 Ariz. 348, 354 (1982))). To establish a

claim for abuse of process, a plaintiff must show evidence of an act or threat

not authorized by the process or aimed at an illegitimate objective. Mitchell

v. Guzick, 138 F. App'x 496, 502 (3d Cir. 2005) (citing Bristow, 80 F.Supp.2d

at 430-31).

Plaintiff alleges that the DA Defendants initiated and then continued to

pursue criminal proceedings against Plaintiff at the insistence of defendant

Powell and Sullum’s aunt, Judge Janine Edwards. Plaintiff claims that the

motives for such pressure were, “in part,” retaliatory in nature as Plaintiff had

made disparaging comments about, and refused to work with, the Powell

19

Law Firm.® To Plaintiff, the culmination of Powell and Edward’s pressure led

to the filing of an affidavit of probable cause against Stevens in November

2018. Plaintiff also claims that his subsequent arrest and the eventual filing

of criminal charges against him in March 2019 were also the result of this

pressure.

Such allegations, however, do not support a claim that the purpose of

the criminal proceedings against Plaintiff were “lacking in justification as to

lose [their] legitimate function as [] reasonably justifiable litigation

procedure.” See Hart, 2011 WL 940311 (though plaintiff claimed the

defendant witness “forum shopped” criminal accusations to authorities “she

knew to be false in order to have criminal charges brought against Plaintiff,”

the defendant authorities merely carried out the process to its authorized

conclusion). Further, Plaintiff fails to point to the clear “perversion” of the

legal process that furthered such an illicit purpose after the proceedings were

commenced.’ Therefore, the DA Defendants’ motion to dismiss Plaintiffs

claim for abuse of process will be granted.

6 Plaintiff argues that his personal legal history with the Powell Law

Firm — which the Court can only assume is somehow linked to defendant

District Attorney Powell — resulted in the Powell Law Firm “losing many

clients and substantial revenue,” which would reflect the true motive for the

DA Defendants’ push to prosecute Plaintiff. Plaintiff does not allude to the

motive for Sullum’s aunt, Judge Janine Edwards, to “use her influence’ to

persuade the DA Defendants to pursue criminal charges against Stevens.

’ Plaintiff also bases his claim on notes written by Deputy District

Attorney Sara Varela on January 4, 2019, indicating that she was told by

defendant Price that Price and defendant Powell planned to send Sullum to

20

iii. False Arrest

A claim under Section 1983 for faise arrest is grounded in the Fourth

Amendment guarantee against unreasonable seizures. Garcia v. Cty. of

Bucks, 155 F.Supp.2d 259, 265 (E.D. Pa. 2001) (citing Groman v. Two. of

Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)). To maintain a claim for false

arrest, a plaintiff must show that he or she was arrested and the arresting

officer “lacked probable cause to make the arrest.” Id. Probable cause exists

when the facts and circumstances are “sufficient to justify a prudent officer

in believing that the suspect had committed or was committing a crime.”

Jones v. Middletown Twop., 253 F. App'x 184, 188 (3d Cir. 2007) (citing

Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). A court will look to the “totality

of the circumstances” and use a common-sense approach in assessing

whether there is or is not probable cause. Id. (citing United States v. Glasser,

750 F.2d 1197, 1205 (3d Cir. 1984)). Probable cause is thus determined by

a rehabilitation facility for alcoholism and PTSD so as to “explain [Sullum’s]

lies to the police,” and that they could manufacture a diagnosis of PTSD for

Sullum in order to “salvage victims credibility” as Sullum had not been

diagnosed with PTSD. Though the fabrication of evidence in order to further

criminal proceedings could potentially be construed as a perversion of the

legal process that could indicate an abuse of process, the Plaintiff does not

allege the DA Defendants used such evidence in charging documents or that

it impacted his criminal proceedings in any material way. See (Doc. 9 at □□

52-55).

21

the facts and circumstances within the officer's knowledge at the time of the

arrest. Hart, 2011 WL 940311, at *10.°

Plaintiff alleges that he was arrested by defendants and “[clonfined

against his will,” but that there were five separate facts of which the DA

Defendants were aware before they arrested the Plaintiff that undermined

any finding of probable cause and that they failed to include in their affidavit

of probable cause. These mitigating facts include: (1) that Plaintiff denied

any wrongdoing and maintained that the encounter was consensual: (2) that

Plaintiff and Sullum engaged in extensive text messaging that was flirtations

in nature; (3) that Sullum concealed the substance of the text messages from

the police; (4) that Sullum texted Plaintiff in the presence of detectives to

elicit an incriminating response that instead “yielded clear evidence” that

Stevens believed the encounter was consensual; and (5) that Sullum was

8 In contrast, when a plaintiff was arrested pursuant to a warrant, it is

proper for the Court to “focus{] its probable cause analysis on whether [the

defendant] ‘knowingly and deliberately, or with reckless disregard for the

truth, made false statements or omissions that create[d] a falsehood in

applying for the warrant.” Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)

(quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)) (internal

quotation marks omitted). The Third Circuit has held that “omissions are

made with reckless disregard if an officer withholds a fact in his ken” such

that “[a]ny reasonable person would have known that this was the kind of

thing the judge would wish to know.” See Id. (quoting United States v.

Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (internal quotation marks

omitted)). Though the DA Defendants do noi raise this argument, it is

reasonable at this stage to assume that the information below omitted by the

DA Defendants would be information that a judge signing a warrant “would

wish to know.”

22

known to the Lackawanna County criminal justice system as having

previously lied to police in connection with separate domestic disputes.

While there are still questions as to the clear circumstances

surrounding the Plaintiffs arrest and the involvement of the various DA

Defendants, such questions are not dispositive at the motion-to-dismiss

stage of litigation. As a finding of probable cause is fact specific and the

Plaintiff alleges various facts that could undermine the assertion that the DA

Defendants had such cause for Stevens’ arrest,’ viewing the evidence in the

light most favorable to the non-moving party, the Court will deny the DA

Defendants’ motion to dismiss the Plaintiff's false arrest claim.

iv. False Imprisonment

Like a claim for false arrest, a claim for false imprisonment under

Section 1983 is based in the Fourth Amendment and the guarantee against

unreasonable seizures. Garcia v. County of Bucks, 155 F.Supp.2d 259, 265

(E.D. Pa. 2001). “[Wjhere the police lack probable cause to make an arrest,

the arrestee has a claim under §1983 for false imprisonment based on a

detention pursuant to that arrest.” Groman v. Twp. of Manalapan, 47 F.3d

628, 636 (3d Cir, 1995). Therefore, where a claim for false arrest is

sustained, a claim for false imprisonment is also sustained. As Plaintiff has

° The Court also notes that the DA Defendants’ decision to file the

affidavit of probable cause and an arrest warrant for the Plaintiff was made

after an investigation and months of review of the facts involved, which must

further call into question that decision and the reasonableness behind the

weighing of all the circumstances.

23

properly pled both causes of action, the Court will thus deny the DA

Defendants’ motion to dismiss Plaintiff's false imprisonment claim.

b. Section 1983 claims against defendant Sulium

“Section 1983 subjects to liability those who deprive persons of federal

constitutional or statutory rights ‘under color of any statute, ordinance,

regulation, custom, or usage’ of a state.” Leshko v. Servis, 423 F.3d 337,

339 (3d Cir. 2005) (citing 42 U.S.C. §1983). For purposes of Section 1983,

the term “under cover of [law]” is construed to also mean “state actor.” Kach

v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). A plaintiff thus seeking to “hold

an individual liable under §1983 must establish that she was deprived of a

federal constitutional or statutory right by a state actor.” Id. (citing Benn v.

Universal Health Sys., 371 F.3d 165, 169-70 (3d Cir. 2004)). Where the

actors are not state or municipal officials but are private individuals, courts

must address whether their activity can nevertheless be deemed to be under

color of law. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982). This

inquiry is fact-specific. Id.; Krynicky v. University of Pittsburgh, 742 F.2d 94.

97-98 (3d Cir. 1984).

The color of state law analysis can be difficult, but is grounded in a

basic and clear requirement, “that the defendant[s] in a §1983 action have

exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” West v.

Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.

299, 326 (1941)). The issue is not whether the state was involved in some

24

way in the relevant events, but whether the action taken by a defendant can

be fairly attributed to the state itself. Jackson v. Metropolitan Edison Co., 419

U.S. 345, 351 (1974): see also Borrell v. Bloomsburg Univ., 870 F.3d 154,

160 (3d Cir. 2017) (courts will ask whether there was “such a close nexus

between the State and the challenged action that seemingly private behavior

may be fairly treated as that of the State itself’).

The Supreme Court has set forth three approaches for determining

whether a certain action was conducted under color of state law: (1) “whether

the private entity has exercised powers that are traditionally the exclusive

prerogative of the state”; (2) “whether the private party has acted with the

help of or in concert with state officials”; and (3) whether “the [sjtate has so

far insinuated itself into a position of interdependence with the acting party

that it must be recognized as a joint participant in the challenged activity.”

Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995) (other

alterations, internal quotation marks and citations omitted). The Third Circuit,

however, has narrowed these tests into one inquiry: “whether the private

party has acted with the help of or in concert with state officials,’ a test also

known as the ‘joint action test.’” Romich v. Sears Holding Corp., 2013 WL

5925082, at *12 (E.D. Pa. Nov. 5, 2013) (quoting Kach, 589 F.3d at 646)

(citing Cahill ex rel. L.C. v. Live Nation, 512 F. App’x. 227, 230 (3d Cir.

2013)). Under this “joint action test,” “a private party will be deemed a state

actor if it is a ‘willful participant in joint action with the State or its agents.”

Cahill, 512 FE. App’x. at 230 (quoting Lugar, 457 U.S. at 941).

25

In view of the Plaintiffs claims, as defendant Sullum is not a state

employee, any liability under Section 1983 is dependent on whether the

Plaintiff properly pled that Sullum was a state actor as a “willful participant in

joint action with the State or its agents.” Lugar, 457 U.S. at 941. The Plaintiff

argues that this “joint action” included Sullum’s involvement in the DA

Defendants’ investigation and the creation of a narrative that painted Plaintiff

in a criminal light. Plaintiff, however, does not allege Sullum took any steps

to influence the DA Defendants’ investigation or work jointly with the other

defendants except to give her accounts of the events of March 27, 2018.

Plaintiff instead merely claims in conclusory fashion that “Defendants,”

including Sullum, “conspired to violate Plaintiff[‘s] civil rights.” Such

conclusory claims are insufficient to establish that Sullum was acting in

concert with the State to a degree where she would be considered a “willful

participant in joint action with the State.” See Great Western Mining & Mineral

Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010) (Bare allegations of

conspiracy, or the assertion that “[djefendants engaged in a concerted action

of a kind not likely to occur in the absence of agreement,” are insufficient.).

Even as Plaintiff has failed to plead facts sufficient to show that

defendant Sullum was acting under color of law, it must also be recognized

that alleged victims who later act as witnesses in legal proceedings are

generally protected from certain civil liability in order to thwart any efforts to

disincentivize participation in the judicial process. See Briscoe v. Lahue, 460

U.S. 325, 329-33 (1983) (trial witnesses generally have immunity with

26

respect to federal civil claims as they would not be acting “under color of law”

when providing testimony); Rehberg v. Paulk, 566 U.S. 356, 371 (2012) (a

complaining witness, like a witness providing trial testimony, is likewise

generally immune from suit for grand jury testimony). Such protections arise

as “the claims of the individual [against a witness] must yield to the dictates

of public policy.” Briscoe, 460 U.S. at 332-33. Though to what degree Sullum

would constitute a “witness” across the various alleged federal claims for

immunity purposes would still require further analysis, immunity may be

extended even where it will inconsequently provide far more leeway than

should be allowed in a criminal justice system that strives first and foremost

for truth.'° Irrespective of such an analysis, the defendant Sullum’s motion

to dismiss Plaintiff's federal Section 1983 claims will be granted.

c. Section 1983 claims against _defendant_ Lackawanna

County

Claims against a municipality under Section 1983 are available only

under certain circumstances. In Monell v. Dep't of Soc. Servs. of N.Y.C., the

Supreme Court states that “local governing bodies ... can be sued directly

under §1983 ... where ... the action that is alleged to be unconstitutional

implements or executes a policy statement, ordinance, regulation, or

10 Though a witness generally may not be subject to federal civil liability

as a result of false testimony at the grand jury or trial phase of litigation,

criminal measures may still be taken. The same can be said of filing a false

report with the police. Such measures must act as a deterrence to lying under

oath or to authorities.

27

decision officially adopted and promulgated by that body's officers.” 436 U.S.

658, 690 (1978). Thus, a municipality may be held liable under Section 1983

where “the alleged unconstitutional action executes or implements policy or

a decision officially adopted or promulgated by those whose acts may fairly

be said to represent official policy.” Reitz v. Cty. of Bucks, 125 F.3d 139, 144

(3d Cir. 1997) (citing Monell, 436 U.S. 658 at 690-91). The Third Circuit has

interpreted this to allow for liability under three circumstances:

First, the municipality will be liable if its employee acted pursuant

to a formal government policy or a standard operating procedure

long accepted within the government entity, Jett_v. Dall. Indep.

Sch. Dist., 491 U.S. 701, 737 (1989): second, liability will attach

when the individual has policy making authority rendering his or

her behavior an act of official government policy, Pembaur v, City

of Cincinnati, 475 U.S. 469, 480-81 (1986): third, the municipality

will be liable if an official with authority has ratified the

unconstitutional actions of a subordinate, rendering such

behavior official for liability purposes, City of St. Louis v.

Praprotnik, 485 U.S. 112, 127 (1988).

Spiess, 2013 WL 1249007, at *19 (quoting McGreevy v. Stroup, 413 F.3d

359, 367 (3d Cir. 2005)). In essence, a party must show that an

unconstitutional policy or custom exists or was created by a decisionmaker

possessing final authority. Forrest v. Parry, 930 F.3d 93, 105-06 (3d _ Cir.

2019) (“[A] plaintiff presenting an unconstitutional policy must point to an

official proclamation, policy or edict by a decisionmaker possessing final

authority to establish municipal policy on the relevant subject. And, if alleging

a custom, the plaintiff must evince a given course of conduct so well-settled

and permanent as to virtually constitute law.”).

28

Plaintiff argues that the decisions to prosecute and detain Stevens,

allegedly fabricate evidence, and coordinate the prosecution of Stevens with

a county judge “were as a result of the policies, practices and/or customs of

the Lackawanna County and Lackawanna County District Attorney's Office.”

The Plaintiff, however, does not point to a specific policy or custom in place

that it claims led to these actions. See Jones v. Cty. of York, 2020 WL

3892878, at *4 (M.D. Pa. July 10, 2020) (“[Flor a municipality to be liable

under a municipal policy or custom theory, the plaintiff needs to point to a

specific policy or a custom that caused his injury.”).

Furthermore, the Plaintiff fails to claim that the actions of the DA

Defendants created a policy or custom instead of merely reflecting one, thus

undermining any potential assertion that the actions themselves somehow

instituted a new path forward for the DA Defendants and Lackawanna

County. As Plaintiff fails to point to any established unconstitutional policy or

custom but only offers a conclusory assertion, defendant Lackawanna

County’s motion to dismiss Plaintiff's Section 1983 claim will be granted.

B. Conspiracy to Violate Civil Rights Claims Under 42 U.S.C. §1985

Similar to the terms of Section 1983, the terms of Section 1985 do not

create a substantive right, but merely provide a method for vindicating federal!

rights conferred by the United States Constitution and the federal statutes

that it describes. Great American Fed. Sav. & Loan Ass’n v. Novotny, 442

U.S. 366, 372 (1979). Section 1985(3), which provides for claims stemming

29

from a conspiracy to deprive a plaintiff of constitutional equal-protection

righis or privileges, states in pertinent part:

If two or more persons in any State or Territory conspire or go in

disguise on the highway or on the premises of another, for the

purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws ... whereby another is

injured in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the United States,

the party so injured or deprived may have an action for the

recovery of damages occasioned by such injury or deprivation,

against any one or more of the conspirators.”

42 U.S.C. §1985(3). Following its initial decision in Griffin v. Breckenridge,

403 U.S. 88 (1971) concerning Section 1985(3) claims, the Supreme Court

made clear that for a plaintiff to substantiate a claim under 1985(3), he or

she must allege: “(1) a conspiracy; (2) for the purpose of depriving, either

directly or indirectly, any person or class of persons of the equal protection

of the laws, or of equal privileges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby a person is injured in his

person or property or deprived of any right or privilege of a citizen of the

United States.” United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825,

828-29 (1983) (citing Griffin, 403 U.S. at 102-03); Lake, 112 F.3d at 685

(same). Further, “[t]he Griffin Court emphasized that because §1985(3)

requires the ‘intent to deprive of equal protection, or equal privileges and

immunities,’ a claimant must allege ‘some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the conspirators’ action’ in

30

order to state a claim.” Farber v. City of Paterson, 440 F.3d 131 (3d Cir.

2006) (citing Griffin, 403 U.S. at 102)).

As the Plaintiff has failed to claim any “racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the [alleged]

conspirators’ action,” his Section 1985 claim will be dismissed."

C. Claims Under Pennsylvania State Law

The Plaintiff raises three separate claims under state law — for

malicious prosecution and malicious use and abuse. of process against

defendant Sullum, and for tortious interference with employment and

economic advantage against defendant Powell.

a. State malicious prosecution claim against defendant

sullum

To prevail on a malicious prosecution claim under Pennsylvania law, a

plaintiff must prove that “the defendant (1) instituted proceedings against the

plaintiff, (2) without probable cause, (3) with malice, and (4) that the

Plaintiff recognizes that he misstated the proper section of the U.S.

Code in his amended complaint — as he did in his initial complaint — when

pleading his conspiracy claim and offers a revised view of his amended

complaint in his briefing. This, however, does not act to amend the amended

complaint and properly plead a conspiracy claim under Section 1983, nor do

the facts set forth in his pleading properly identify any particular grounds

upon which it could be deduced that the Plaintiff initially attempted to plead

a Section 1983 conspiracy claim. See (Doc. 9 at 17) (Plaintiff broadly states,

as with his other claims, that he “incorporates by reference ... the allegations

of the preceding paragraphs,” improperly leaving it to the Court to decide

whether facts have been properly pled for a conspiracy claim). |

31

proceedings were terminated in favor of the plaintiff.” Corrigan v. Cent. Tax

Bureau of Pa., Inc., 828 A.2d 502, 505 (Pa. Commw. Ct. 2003) (citing Turano

v. Hunt, 631 A.2d 822, 824 (Pa. Commw. Ct. 1993)). A state law cause of

action for malicious prosecution thus includes the same first four elements

as a claim under Section 1983 but does not require showing a deprivation of

liberty. See Napier v. City of New Castle, 407 F. App'x 578, 583 (3d Cir.

2010) (listing the elements of the Pennsylvania cause of action for malicious

prosecution as enumerated in Corrigan). A state malicious prosecution claim |

also does not require that the plaintiff allege a violation of the United States

Constitution or that the defendant was acting under color of law. But see

(although the elements for malicious prosecution under state and federal law

appear similar, “except for the requirement of a constitutional violation under

§1983,” they also “differ in substance’).

In analyzing claims for malicious prosecution, Pennsylvania courts

have relied extensively on the Restatement (Second) of Torts. Shoop v.

Dauphin Cty., 766 F.Supp. 1327, 1338 (M.D. Pa. 1991); see a/so Bradley v.

Gen. Accident Ins., 778 A.2d 707, 710-11 (Pa. Super. Ct. 2001) (comment g

of the Second Restatement is a guide in determining a private individual's

responsibility for initiating proceedings by providing statements to police).

The Restatement acknowledges that a private individual who reports

suspected criminal conduct to a law enforcement officer causes the

institution of any subsequent proceedings initiated as a result of the

32

information provided. Restatement (Second) of Torts §653 cmt. g (1977).

Comment g of the Second Restatement, however, clarifies that for a private

person, “giving the information or even making an accusation of criminal

misconduct does not constitute a procurement of the proceedings initiated

by the officer if it is left entirely to [the officer's] discretion to initiate the

proceedings or not.” Id. Instead, a claim for malicious prosecution may exist

where “an intelligent exercise of the officer's discretion becomes impossible”

because a private individual knowingly provides false information on which

the initial prosecution relied. Id.; Cooper v. Muldoon, 2006 WL 1117870 (E.D.

Pa. Apr. 26, 2006).

Plaintiff here alleges that defendant Sullum knowingly provided false

information to the DA Defendants regarding the sexual encounter between

Sullum and Stevens, and that this false information led to the Plaintiff's

prosecution for various sexual assault charges. See Washington v. City of

Philadelphia, 2010 WL 3058369, at *3 (E.D. Pa. Aug. 2, 2010) (a private

party may have “initiated” or “procured” criminal proceedings when providing

knowingly false information to authorities (citing Hess v. Lancaster Cty., 514

A.2d 681, 683 (Pa. Commw. Ct. 1986))). Plaintiff also generally claims that

Sullum maliciously acted without probable cause and, as discussed above,

the criminal proceedings were terminated in Plaintiff's favor. The Court,

therefore, viewing the evidence in the light most favorable to the Plainiiff, will

deny defendant Sullum’s motion to dismiss Plaintiff's state malicious

prosecution claim.

33 □

b. State malicious abuse of process claim against defendant

Sullum’?

“The gist of an action for abuse of process is the improper use of

process after it has been issued, that is, a perversion of it.” McGee v. Feege,

(citing

Co., 32 A.2d 413 (Pa. 1943)); see also Mitchell, 138 F. App’x. at 502 (an

abuse of process occurs when a “prosecution is initiated legitimately [but]

thereafter is used for a purpose other than that intended by the law,” such as

blackmail or abuse (quoting Jennings, 567 F.2d at_1217)). To establish a

claim of abuse of process under Pennsylvania law, a plaintiff must show that

the defendant (1) used legal process against the plaintiff, (2) primarily to

accomplish a purpose for which the process was not designed, and (3)

caused harm to the plaintiff.

Super. Ct, 2002) (citing Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super.

Ct. 1998): see also Gen. Refractories Co. 337 F.3d at 304.

As with claims for malicious prosecution, Pennsylvania courts have

turned to the Second Restatement of Torts for guidance. The tort of “abuse

of process’ is defined as the use of legal process against another “primarily

12 Plaintiff also raises a “malicious use of process’ claim in conjunction

with his abuse of process claim. A malicious use of process claim, however,

traditionally mirrors a malicious prosecution claim and is the alternative to a

malicious prosecution claim in the civil context. See Rose, 871 F.2d at 350

n.17 (explaining that an abuse of process and malicious use of process, “also

known as malicious prosecution,” are separate torts.).

34

to accomplish a purpose for which it is not designed.” Restatement (Second)

of Torts §682. The Restatement states in relevant part:

The gravamen of the misconduct for which the liability stated in

this Section is imposed is not the wrongful procurement of legal

process or the wrongful initiation of criminal or civil proceedings:

it is the misuse of process, no matter how properly obtained, for

any purpose other than that which it was designed to accomplish.

Therefore, it is immaterial that the process was properly issued,

that it was obtained in the course of proceedings that were

brought with probable cause and for a proper purpose, or even

that the proceedings terminated in favor of the person instituting

or initiating them. The subsequent misuse of the process, though

properly obtained, constitutes the misconduct for which the

liability is imposed under the rule stated in this Section.

id. at cmt._a. As a result, a court must determine whether the legal process

in question was used “primarily ‘to benefit someone in achieving a purpose

which is not the authorized goal of the procedure in question.” Gen.

Refractories Co. 337 F.3d at 304 (quoting Werner, 799 A.2d at 785); see

also Al Hamilton Contracting Co., 644 A.2d 491, 191-92 (Pa. Super. Ct.

1994) (“It is not enough that the defendant had bad or malicious intentions

... [f]jather, there must be an act or threat not authorized by the process, or

the process must be used for an illegitimate aim such as extortion, blackmail,

or to coerce or compel the plaintiff to take some collateral action.”).

Plaintiff claims that Sullum falsely accused Stevens of coercion

because she “intend[ed] to file a civil lawsuit for monetary gain” and “conceal

[an] affair,” and that she repeated these false claims when she testified

during a preliminary hearing. Plaintiff, however, fails to show how the legal

35

proceedings were used primarily for a purpose that they were not intended

or to coerce a desired result, as Plaintiff alleges that Sullum provided her

false testimony in a preliminary hearing as part of the government's efforts

to support a criminal information, which would be a legitimate purpose of

such a hearing. See Gen. Refractories Co., 337 F.3d at 305 n.2 (“there is no

action for abuse of process when the process is used for the purpose for

which it is intended, but there is an incidental motive or spite or ulterior

purpose of benefit to the defendant”); see also Gebhart, 574 F. App’x. at 160

(plaintiff failed to support abuse of process claim where there were

allegations of “an improper motive in initiating the suit, not in conducting it’).

Though providing the police with false claims of criminal conduct and

giving testimony reiterating that same fictitious conduct in court would be

reproachable and potentially worthy of criminal repercussions, such actions

would not appear to reflect a perversion of a process used for an illegitimate

aim. Plaintiff has therefore failed to plead sufficient facts that would establish

that there was an abuse of process. Defendant Sullum’s motion to dismiss

will thus be granted with respect to Plaintiffs state abuse of process claim.

c. State tortious interference with employment claim against

defendant Powell

To state a claim for tortious interference with prospective economic

advantage, a plaintiff must allege: (1) the existence of a contractual, or

prospective contractual relation between the complainant and a third party;

(2) purposeful action on the part of the defendant, specifically intended to

36

harm the existing relation, or to prevent a prospective relation from occurring;

(3) the absence of privilege or justification on the part of the defendant; and

(4) the occasioning of actual legal damage as a result of the defendant's

conduct. Crivelli v. Gen. Motors Corp., 215 F.3d 386, 394 (3d _ Cir. 2000)

(citing Strickland v. University of Scranton, 700 A.2d 979, 985 (Pa. Super.

Ct. 1997)).

in determining whether a particular course of conduct is improper for

purposes of setting forth a cause of action for tortious interference with

prospective advantage, Pennsylvania courts have looked to Section 767 of

the Restatement (Second) of Torts. This section provides the following

factors for consideration: (1) the nature of the actor's conduct; (2) the actor's

motive; (3) the interests of the other with which the actor's conduct interferes;

(4) the interests sought to be advanced by the actor; (5) the proximity or

remoteness of the actor's conduct to interference, and (6) the relationship

between the parties. Strickland, 700 A.2d at 985 (citing Triffin v. Janssen,

626 A.2d 571, 574 (Pa. Super. Ct. 1993)). It is unnecessary, however, for

courts to weigh these factors at the pleading stage.

Plaintiff asserts that defendant Powell reached out beyond the typical

duties of his office to contact the Pennsylvania Department of State and

“intentionally mispresented the facts [] of the subject encounter and withheld

exculpatory evidence in providing information to the Pennsylvania Office of

Enforcement and Investigation.” According to Plaintiff, these efforts to

“transmit[] false information” about Stevens eventually led to the suspension

37

of Stevens’ chiropractic license to practice. For professional chiropractors, it

would be generally understood that a license to practice would be required

to operate a chiropractic office. As Plaintiff operated such an office, Stevens

Chiropractic, the loss of his license would seemingly impact either existing

or prospective business with clients as he would be entirely unable to

practice.

Though Plaintiff has failed to indicate what damages he actually

incurred as a result of the loss of his license allegedly due to Powell's

intervention outside the general assertion that Plaintiff “suffered severe loss

of prospective patients/clients and actual loss of revenue,” such issues of

fact are better settled at the damages stage of the litigation than at the

motion-to-dismiss stage. See Sidhu v. Mann, 2011 WL 900982, at *5 (M.D.

Pa. Mar. 14, 2011) (“Defining a ‘prospective contractual relation’ is

admittedly problematic .... [i]t is something less than a contractual right,

something more than a mere hope.” (quoting Thompsen Coal Co. v. Pike

Coal Co., 412 A.2d 466, 471 (Pa. 1979))). As such, the Plaintiff has

sufficiently pled facts to support a claim for tortious interference with

economic advantage, and defendant Powell’s motion to dismiss this claim

will be denied.

iV. CONCLUSION

For the reasons discussed above, the Court will: DENY the DA

Defendants’ motion to dismiss as to Counts |, Ill and IV; DENY defendant

38

Sullum’s motion to dismiss as to Count VI; DENY defendant Powell's motion

to dismiss as to Count VIIl; and GRANT the defendants’ motions to dismiss

as to the remaining Counts. A separate order will follow.

5] Malachy €. Mannion

MALACHY E. MANNION

United States District Judge

Date: July 2, 2021

20-1911-05.wpd

39