# Sanchez v. Jenkins Township

> District Court, M.D. Pennsylvania · April 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10414691

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KATHLEEN SANCHEZ,

Plaintiff, CIVIL ACTION NO. 3:23-CV-01321

v. (MEHALCHICK, J.)

JENKINS TOWNSHIP, et al.,

Defendants.

MEMORANDUM
Before the Court is a motion to dismiss the amended complaint filed by Defendants
Jenkins Township (“Jenkins”) and Christopher Purcell (“Officer Purcell”) (collectively,
“Defendants”). (Doc. 10). On August 9, 2023, Plaintiff Kathleen Sanchez (“Sanchez”)
initiated this action by filing a complaint alleging claims against Defendants pursuant to 42
U.S.C. § 1983. (Doc. 1). On November 19, 2023, Sanchez filed the operative amended
complaint. (Doc. 8). On December 4, 2023, Defendants filed a motion to dismiss the
amended complaint. (Doc. 10). For the following reasons, Defendants’ motion to dismiss is
GRANTED IN PART and DENIED IN PART. (Doc. 10).
I. BACKGROUND
The following factual summary is taken from Sanchez’s amended complaint. (Doc.
8). Sanchez has lived on Chestnut Street in Jenkins for over 34 years. (Doc. 8, ¶ 8). For over
a year, Sanchez alleges she was unable to pull out of her driveway “without scraping her car
against branches,” due to the presence of a red vehicle parked across the street. (Doc. 8, ¶ 9).
Sanchez believes the red vehicle belongs to someone who either lives at or frequents 44
Mitchell Street in Jenkins. (Doc. 8, ¶ 10). Sanchez “attempted several times to discuss the
situation,” with the residents of 44 Mitchell Street, however, these discussions often resulted
in yelling and finger pointing. (Doc. 8, ¶¶ 11-13). Despite her requests, the red vehicle’s
owner refused to stop parking across the street from Sanchez’s driveway. (Doc. 8, ¶ 13).
On October 11, 2022, the parking situation escalated when Sanchez parked across
from her driveway in the red vehicle’s typical spot. (Doc. 8, ¶ 14). According to Sanchez,

she did so to put the groceries inside her home with the intention of moving her car back
into the driveway once she was finished. (Doc. 8, ¶ 15). In response to Sanchez parking in
the red vehicle’s typical spot, the residents of 44 Mitchell Street and Sanchez engaged in a
“verbal exchange” which resulted in Sanchez moving her car and calling 911. (Doc. 8, ¶¶
16-17). Officer Purcell responded to the call and subsequently charged Sanchez with
harassment pursuant 18 PA. CONS. STAT. § 2709(a)(3) & (4). (Doc. 8, ¶¶ 20-23, at 11). The
citation Officer Purcell issued states, “Actor did harass the victim and her family over an
ongoing parking problem by use of name calling, calling victim’s husband leprechaun after
several attempts to work this out.” (Doc. 8, at 11). According to the citation, the “victim” of
the harassment was Katlyn Malloy-Wolfe, one of the residents at 44 Mitchell Street. (Doc.

8, ¶ 26, at 11).
Sanchez pled not guilty to the crime of harassment before Magisterial District Judge
Alexandra Kokura-Kravitz. (“Judge Kokura-Kravitz”) (Doc. 8, ¶ 29, at 24). On February 2,
2022, Sanchez appeared for trial; however, Officer Purcell was not present. (Doc. 8, ¶ 32).
Instead, Jenkins Police Chief Frank Mudlock (“Chief Mudlock”) appeared to prosecute the
matter on Officer Purcell’s behalf. (Doc. 8, ¶ 32). Judge Kokura-Kravitz continued the
matter for sixty days with the understanding that, so long as there were no additional
incidents between Sanchez and the residents of 44 Mitchell Street, she would find Sanchez
not guilty. (Doc. 8, ¶ 36). On April 23, 2023, Sanchez was found not guilty. (Doc. 8, ¶ 37).
In her amended complaint, Sanchez puts forth the following counts: Count I against
Jenkins under 42 U.S.C. § 1983 and Count II against Officer Purcell under 42 U.S.C. §
1983. (Doc. 8, ¶¶ 40-45, 46-48). In Count I, Sanchez alleges that Chief Mudlock’s
participation in Sanchez’s prosecution established an “illegal policy for Jenkins Township.”

(Doc. 8, ¶¶ 42-44). Sanchez alleges that as a result of this illegal policy, she “suffered
constitutional violations and damages.” (Doc. 8, ¶ 45). In Count II, Sanchez alleges that
Officer Purcell’s conduct, “including his charging Ms. Sanchez criminally,” violated her
First Amendment right to free speech and her Fourteenth Amendment to due process. (Doc.
8, ¶ 47). As a result, Sanchez alleges she suffered “substantial injury and damage.” (Doc. 8,
¶ 48). As relief, Sanchez requests damages, the amount of which to be determined at trial, as
well as attorneys’ fees and costs associated with the action. (Doc. 8, ¶¶ A-E).
On December 4, 2023, Defendants filed a motion to dismiss Sanchez’s amended
complaint. (Doc. 10). On December 18, 2023, Defendants filed a brief in support of their
motion. (Doc. 11). On December 22, 2023, Sanchez filed a brief in opposition. (Doc. 12).

On January 5, 2024, Defendants filed a reply brief. (Doc. 13). Accordingly, the motion to
dismiss has been fully briefed and is ripe for discussion. (Doc. 10; Doc. 11; Doc. 12; Doc.
13).
II. LEGAL STANDARDS
A. RULE 12(B)(6)
Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To assess the sufficiency of a
complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff
must plead to state a claim, then identify mere conclusions which are not entitled to the
assumption of truth, and finally determine whether the complaint’s factual allegations,
taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may
consider the facts alleged on the face of the complaint, as well as “documents incorporated

into the complaint by reference, and matters of which a court may take judicial notice.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court
should “begin by identifying pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The
plaintiff must provide some factual ground for relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal
conclusions…’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also
need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated
Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be
construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to

those allegations for which there is sufficient factual matter to render them plausible on their
face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation
and citation omitted). The plausibility determination is context-specific and does not impose
a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded
complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to
relief beyond the level of mere speculation, set forth in a “short and plain” statement of a
cause of action. There is no requirement that the pleading be specific or probable.

Schuchardt, 839 F.3d at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d
Cir. 2008). Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to
give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips,
515 F.3d at 233 (citing Twombly, 550 U.S. at 545).
B. 42 U.S.C. SECTION 1983
Sanchez asserts her constitutional claims under 42 U.S.C. § 1983, which provides a
private cause of action for violations of federal constitutional rights. The statute provides in
pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, 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.
Section 1983 does not create substantive rights, but instead provides remedies for rights
established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To succeed
on a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of
state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v.
Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Further, “a defendant in a civil rights
action ‘must have personal involvement in the alleged wrongs to be liable,’ and ‘cannot be
held responsible for a constitutional violation which he or she neither participated in nor
approved.’” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (internal citations
omitted). “Personal involvement can be shown through allegations of personal direction or
of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988).
III. DISCUSSION
Arguing for dismissal, Defendants assert that “issuance of a citation for harassment
that prohibits conduct connected with a parking space dispute is a lawful exercise of a state
actor’s police powers and is an inappropriate basis for a First Amendment challenge.” (Doc.
11, at 8). Defendants also aver “the mere failure of the police chief to withdraw an
otherwise valid harassment citation fails to show wrongful inaction sufficient to state a
claim against [Jenkins].” (Doc. 11, at 13). In response, Sanchez avers that she has properly
pled a First Amendment claim because she was prosecuted because she called a man
leprechaun and that because Chief Mudlock should have realized an individual cannot be
prosecuted for First Amendment protected speech, his personal actions amounted to a
failure to control Officer Purcell and thus constitute “official actions of Jenkins Township.”
(Doc. 12, at 12).

A. COUNT I: SANCHEZ’S CLAIMS AGAINST JENKINS
Sanchez asserts her constitutional claim against Jenkins pursuant to 42 U.S.C. § 1983
and under a theory of municipality liability. (Doc. 8, ¶¶ 40-45). Defendants argue Sanchez
has failed to state a claim for municipal liability under 42 U.S.C. § 1983 because the
amended complaint fails to allege any policy, custom, or practice Jenkins has sustained that
give rise to her First Amendment claim. (Doc. 11, at 13-16). Sanchez argues that as Chief of
Police, Chief Mudlock’s actions and omissions serve as Jenkins’ policy. (Doc. 12, at 10-11).
A municipal body or other local governmental unit is a “person” subject to suit
under 42 U.S.C. § 1983. The Supreme Court has held that:
Congress did intend municipalities and other local government units to be
included among those persons to whom §1983 applies. Local governing
bodies, therefore, can be sued directly under § 1983 for monetary, declaratory,
or injunctive relief where . . . the action that is alleged to be unconstitutional
implements or executes a policy, statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers. Moreover,
although the touchstone of the § 1983 action against a government body is an
allegation that official policy is responsible for a deprivation of rights
protected by the Constitution, local governments, like every
other § 1983 ‘person,’ by the very terms of the statute, may be sued for
constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body's
official decisionmaking channels.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 690-91 (1978).
However, it has also been repeatedly held that a municipality may not be subjected
to Section 1983 liability on a theory of respondeat superior. See e.g. City of Canton v. Harris, 489
U.S. 378, 392 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988); Pembaur v.
Cincinnati, 475 U.S. 469, 478-79 (1986). Rather, “a plaintiff seeking to impose liability on a
municipality under § 1983 [is required] to identify a municipal ‘policy’ or ‘custom’ that
caused the plaintiff's injury.” Board of Cnty. Comm’rs of Bryan Cnty, Okla. v. Brown, 520 U.S.

397, 403 (1997); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). The United States
Supreme Court elaborated on the showing required for municipal liability
under Section 1983, stating that:
it is not enough for a § 1983 plaintiff merely to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate that
through its deliberate conduct, the municipality was the ‘moving force’
behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.

Bryan Cnty., 520 U.S. at 403.
The United States Court of Appeals for the Third Circuit has held that a municipality
can be held liable under Section 1983 “only when ‘execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.” Andrews v. City of Phila., 895 F.2d at 1480
(citing Monell, 436 U.S. at 694). To impose Section 1983 liability, the Third Circuit added
in Andrews that there are two ways in which a governmental policy or custom is established:
Policy is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation,
policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). A
course of conduct is considered to be a ‘custom’ when, though not authorized
by law, ‘such practices of state officials [are] so permanent and well settled’ as
to virtually constitute law. Monell, 436 U.S. at 690.

Andrews, 895 F.2d at 1480.
For the purpose of municipality liability, citing to 53 PA. STAT. ANN. § 66902 the
Third Circuit and this Court have suggested that “a township Police Chief is not a
policymaker.” Santiago v. Warminster Twp., 629 F.3d 121, n.11 (3d Cir. 2010); see Dubas v.
Olyphant Police Dep't, No. 3:11CV1402, 2012 WL 1378694, at *5 (M.D. Pa. Apr. 20, 2012)

(The court. . . finds that borough police chiefs do not have final policy making authority
under Pennsylvania law.”). “Moreover the Supreme Court has forbidden courts from
‘assuming that municipal policymaking authority lies somewhere other than where the
applicable law purports to put it.’” Santiago, 629 F.3d at n.11 (quoting City of St. Louis v.
Praprotnik, 485 U.S. 112, 125 (1988)). Thus, Chief Mudlock cannot be considered a
policymaker for the purpose of Sanchez’s claims against Jenkins. Santiago, 629 F.3d at n.11.
However, even if Chief Mudlock could be considered a policymaker for the purpose of this
action, a review of the amended complaint reveals Sanchez has failed to adequately allege
that his actions established a municipal policy or custom. (Doc. 8). The Court is not

convinced that by attending to Sanchez’s charges Mudlock went as far as to make an official
policy. Whereas Sanchez alleges, “[a]s Chief of Jenkins Township Police Department, Chief
Mudlock was the highest law enforcement policymaker in Jenkins Township [and therefore]
[h]is actions and/or omissions constituted official policy of Jenkins Township,” she does
not allege any “action he took that could fairly be said to be a policy.” (Doc. 8, ¶ 33);
Santiago, 629 F.3d at 135. The allegation that Chief Mudlock “did not withdraw the
criminal charge against Ms. Sanchez, despite his authority to do so,” and instead “pursued
the illegal criminal prosecution of Ms. Sanchez for calling someone a ‘leprechaun,’” “does
not imply the existence of an official policy in violation of Sanchez’s constitutional rights.”

See McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009) (a claimant “must identify a
custom or policy, and specify what exactly that custom or policy was”); see also Santiago, 629
F.3d at 135. Accordingly, the claims against Jenkins are to be DISMISSED and
Defendants’ motion to dismiss Count I is GRANTED.
B. COUNT II: SANCHEZ’S CLAIMS AGAINST OFFICER PURCELL

Sanchez brings her constitutional claims against Officer Purcell pursuant to 42 U. S.
C. § 1983. Sanchez submits that Officer Purcell’s application of Pennsylvania’s anti-
harassment statute, Section 2709 of the Pennsylvania Crimes Code (“Section 2709”),
violated her free speech and due process rights.1 (Doc. 8, ¶¶ 46-48; Doc. 12, at 5). Officer
Purcell charged Sanchez with violating Section 2709(3) & (4). (Doc. 8, at 11). According to
Sanchez, she was “criminally charged for calling a man a leprechaun.” (Doc. 12, at 5).
Defendants contend that Officer Purcell issued Sanchez a citation because of her conduct
related to an ongoing parking dispute with her neighbors, not her speech. (Doc. 11, at 9).
Additionally, Defendants submit that because the Pennsylvania Supreme Court has upheld

challenges to Pennsylvania’s anti-harassment legislation, Officer Purcell’s issuance of a
citation to regulate harassment does not amount to a First Amendment claim. (Doc. 11, at
12).
The First Amendment dictates that “Congress shall make no law. . . abridging the
freedom of speech.” U.S. CONST. amend. I. “[A]s a general matter, the First Amendment
means that government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564, 573, (2002). That said, the
Supreme Court has carved out exceptions to the absolute right to free speech for “certain

1 Sanchez clarifies that she does not intend to raise a facial attack to the
constitutionality of Pennsylvania’s harassment statute. (Doc. 12, at 5 n.2).
well-defined and narrowly limited classes of speech,” including, “the lewd and obscene, the
profane, the libelous, and . . . ‘fighting’ words—those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315
U.S. 568, 571-72 (1942). Aside from these carve outs, “in public debate [] citizens must

tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing
space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U.S. 312, 322
(1988).
To survive a constitutional challenge, legislation implicating speech cannot be vague
or overbroad. Cf. Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243, 259, 266 (3d Cir.
2002). A statute or regulation must fail for vagueness if it “forbids or requires the doing of
an act in terms so vague that men of common intelligence must necessarily guess at its
meaning.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). “A law may be invalidated
facially as ‘overbroad’ if ‘a substantial number of its applications are unconstitutional,

judged in relation to the statute's plainly legitimate sweep.’” Free Speech Coal., Inc. v. Att'y
Gen. United States, 974 F.3d 408 (3d Cir. 2020) (quoting United States v. Stevens, 559 U.S. 460,
473, (2010) (quotation marks omitted))).
Section 2709(a)(3) & (4) provide a “person commits the crime of harassment when,
with intent to harass, annoy or alarm another, the person: engages in a course of conduct or
repeatedly commits acts which serve no legitimate purpose;” and “communicates to or
about such other person any lewd, lascivious, threatening or obscene words, language,
drawings or caricatures[.]” The statute defines “course of conduct” as “[a] pattern of actions
composed of more than one act over a period of time, however short, evidencing a

continuity of conduct.” 18 PA. CONS. STAT. § 2709(f). Pennsylvania courts have held that a
defendant's “intent to harass may be inferred from the totality of the circumstances” and
“[a] course of conduct ... can be based on words alone.” Commonwealth v. Lutes, 2002 PA
Super 51, 793 A.2d 949, 961 (2002) (citations omitted); see Commonwealth v. Harmer, No.
2986 EDA 2016, 2017 WL 2992391, at *3 (Pa. Super. Ct. July 14, 2017).

The intent of Pennsylvania’s anti-harassment statute is “to prevent repeated
communications of a non-legitimate nature, made with specific intent to harass the
listener.” Commonwealth v. Papp, 2023 PA Super 209, 305 A.3d 62, 79 (2023). However,
“[w]hen laws against harassment attempt to regulate oral or written expression [], however
detestable the views expressed may be, [the Court] cannot turn a blind eye to the First
Amendment implications. ‘Where pure expression is involved,’ anti-discrimination law
‘steers into the territory of the First Amendment.’” DeJohn v. Temple Univ., 537 F.3d 301 (3d
Cir. 2008) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 209 (3d Cir. 2001)
(internal quotations omitted)). Pennsylvania’s anti-harassment statute accounts for this

limitation explicitly, stating: “[Section 2709] shall not apply to constitutionally protected
activity.” 18 PA. CONS. STAT. § 2709(e).
Accordingly, individuals charged with harassment may argue their prosecution
violates the First Amendment. See Commonwealth v. Collins, 2022 PA Super 195, 286 A.3d
767 (2022), reargument denied (Jan. 19, 2023) (challenging conviction under Section
2709(a)(3) on First Amendment grounds); see also Papp, 305 A.3d at 77-79; see also
Commonwealth v. Hanner, 303 A.3d 752 (Pa. Super. Ct. 2023) (challenging conviction under
Section 2709(a)(4) on First Amendment grounds); see also Commonwealth v. Spone, 2023 PA
Super 238, 305 A.3d 602 (2023) (challenging conviction under Section 2709(a)(5) on First

Amendment grounds). While “[t]here is a dearth of case law interpreting what constitutes
‘constitutionally protected activity’ as to avoid prosecution for harassment,” the Supreme
Court of Pennsylvania has held that while Pennsylvania’s anti-harassment statute may
implicate speech, it is neither facially overbroad nor vague. Com. v. Hendrickson, 724 A.2d
315, 318-19 (1999). The statute is not facially overbroad because it intends to regulate

harassing conduct, not pure speech. Hendrickson, 724 A.2d at 318; see Harmer, 2017 WL
2992391, at *3. The statute is not facially vague because “when read in context, [the terms
of the statute] are sufficiently specific that it is understood what is prohibited[.]” Hendrickson,
724 A.2d at 319.
Consequently, as Sanchez does in this case, challengers of Section 2709 prosecutions
must argue the statute is unconstitutional “as applied” to them. (Doc. 12, at n.2); cf.
Hendrickson, 724 A.2d at 319. The Pennsylvania Superior Court has explained the
distinction between facial and an as applied constitutional challenges to criminal statutes as
follows:

A facial attack tests a law’s constitutionality based on its text alone and does
not consider the facts or circumstances of a particular case. An as-applied
attack, in contrast, does not contend that a law is unconstitutional as written
but that its application to a particular person under particular circumstances
deprived that person of a constitutional right. A criminal defendant may seek
to vacate his conviction by demonstrating a law’s facial or as-applied
unconstitutionality.

Commonwealth v. Bradley, 2020 PA Super 109, 232 A.3d 747, 757 (2020) (quoting
Commonwealth v. Brown, 2011 PA Super 47, 26 A.3d 485, 493 (2011)).

Thus, the relevant inquiry here to determine whether Section 2709 has been
unconstitutionally applied must shift from a review of the statutory language to a fact-
dependent, totality of the circumstances analysis. Bradley, 232 A.3d at 757.
In this case, based on the amended complaint and the citation attached as an exhibit,
it is unclear whether Sanchez was cited solely for her speech or for harassing conduct that
accompanied and/or preceded that day’s “name calling,” particularly Sanchez calling “the
victim’s husband a leprechaun.”2 (Doc. 8, ¶¶ 24, 25, at 11). Looking solely at what is
provided in the pleadings, Sanchez’s speech constitutes protected speech because name
calling, including calling someone a leprechaun, does not alone fall into any of the Supreme

Court’s carve outs for protected speech. See Johnson v. Bradford, No. CV 16-205, 2017 WL
7163940, at *4 (W.D. Pa. Nov. 30, 2017), report and recommendation adopted, No.
2:16CV205, 2018 WL 621286 (W.D. Pa. Jan. 30, 2018) (“it is clear that [Plaintiff’s] name
calling, standing alone, does not constitute fighting words and thus is protected speech”); cf.
Sypniewski v. Warren Hills Reg'l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) (“much harassment
by name calling (understood broadly) is protected.”). Sanchez’s speech cannot be said to be
“fighting words,” because while her statements may have been “unpleasant, insulting, and
possibly unwise,’ it is not clear whether the statements were intended to cause a fight.
Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003).

In her amended complaint, Sanchez alleges her harassment charge was predicated on
her protected speech, specifically, her “‘calling victim's husband leprechaun.’” (Doc. 8, ¶
24). The citation Officer Purcell issued only provides that Sanchez “did harass the victim
and her family over an ongoing parking problem by use of name calling, calling victim’s
husband Leprechaun and after several attempts to work this out.” (Doc. 8, at 11). While the
State does have an interest in curbing harassing conduct, it cannot constitutionally curb

2 In addition to the facts pled in Sanchez’s amended complaint, this Court may “also
consider matters of public record, orders, exhibits attached to the complaint and items
appearing in the record of the case.” Evans v. Wetzel, No. 3:15-CV-0190, 2016 WL 1242341,
at *1 (M.D. Pa. March 30, 2016) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 n.2 (3d Cir. 1994)). Accordingly, the Court takes judicial notice of the exhibits
expressly incorporated by reference in Sanchez’s amended complaint.
protected speech. See Hendrickson, 555 Pa. 277, 724 A.2d 315 (1999) (“The government has a
legitimate interest in preventing the harassment of individuals. [Pennsylvania’s anti-
harassment] statute is not directed at the content of speech and is unrelated to the
suppression of free expression. Rather, the statute focuses on the manner and means of

communication and proscribes communications made with an intent to harass.”). The
statute itself forbids this use of its provisions. 18 PA. CONS. STAT. § 2709(e). However, in
reviewing Officer Purcell’s citation, it is unclear if what charged Sanchez for was engaging
in protected speech or something more. (Doc. 8, at 11).
At this early stage of litigation, the Court finds that Sanchez has sufficiently alleged
facts, which, if true, plausibly allege Officer Purcell violated her constitutional rights. (Doc.
8). Accordingly, Defendants’ motion to dismiss Count II against Officer Purcell is
DENIED.
IV. LEAVE TO AMEND

The Third Circuit Court of Appeals requires district courts to grant leave to amend in
civil rights cases when a curative amendment is conceivable. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson, 293 F.3d at 108. Here,
Sanchez has already filed an amended complaint and she does not request further
amendment in her brief in opposition to Defendants’ motion to dismiss. Accordingly, the
Court will not grant leave to amend, and this matter shall proceed on the amended
complaint. See Rothermel v. Dauphin Cty., Pennsylvania, No. 1:16-CV-1669, 2018 WL
4680093, at *14 (M.D. Pa. Sept. 28, 2018) (denying leave to amend where plaintiffs did not
request further amendment in Rule 12 briefing).
V. CONCLUSION
Based on the foregoing, Defendants’ motion to dismiss is GRANTED IN PART as to
Count I of the amended complaint against Jenkins and DENIED IN PART as to Count II
of the amended complaint against Officer Purcell. (Doc. 10). Count I against Jenkins will be

DISMISSED. (Doc. 8). An appropriate Order follows.

Dated: April 30, 2024 s/
KAROLINE MEHALCHICK
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414691. Public record. Not legal advice.