VINOSKY v. CONSIGLIO

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT M. VINOSKY, )

)

Plaintiff, )

)

VS. ) Civil Action No. 3:20-cv-134

) Judge Stephanie L. Haines

THE HONORABLE RICHARD A. )

CONSIGLIO, ef al., )

)

Defendants. )

OPINION AND ORDER

This is a civil rights action filed by Plaintiff Scott M. Vinosky (“Plaintiff”) wherein he

alleges his constitutional rights were violated as a result of the conduct, actions, and/or inactions

of the fourteen Defendants, which Plaintiff alleges led to his illegal and unconstitutional arrest,

detention, and imprisonment. In his amended complaint (ECF No. 86),' Plaintiff has named the

following entities and individuals as Defendants: the Honorable Richard A. Consiglio, former

district attorney of Blair County, Pennsylvania; Rodney B. Estep, Jr., chief of police for

Hollidaysburg Borough Police Department; Officer Allen Fochler, employee of the Hollidaysburg

Borough Police Department; Officer John Doe, police officer with the Hollidaysburg Borough

Police Department;? Sergeant Jesse G. Moyer, Pennsylvania State Police; Chief Leo Berg, chief

of police for Allegheny Township Police Department; Blair County; Hollidaysburg Borough;

Allegheny Township; Officers Christopher Rosenberry and Barry Fry, police officers with Logan

The amended complaint is the operative pleading in this matter. Plaintiff commenced this action

by filing a complaint on July 17, 2020 (ECF No. 1). The named defendants in the complaint then

filed motions to dismiss (ECF No. 61, 64, 66, 68, 74, and 79), and Plaintiff filed the amended

complaint (ECF No. 86) in response to those motions.

> The parties do not raise any arguments specific to Officer John Doe, employee of Hollidaysburg

Police Department, and as such, the Court does not address the claims against this Doe Defendant.

Township Police Department; Township of Logan; Maureen Letcher, senior high school principal

of Hollidaysburg Area School District; and Hully Hoover, guidance counselor at Hollidaysburg

Area School District. The individual defendants are sued in their individual capacity, though

described in the amended complaint (ECF No. 86) in relationship to their occupations with the

various municipal Defendants.

In response to the amended complaint (ECF No. 86), all Defendants except Defendant

Sergeant Jesse G. Moyer filed motions to dismiss Plaintiff's amended complaint.’ Specifically,

the following motions are pending before the Court: motion to dismiss for failure to state a claim

filed by Defendant Blair County, Pennsylvania (ECF No. 104), motion to dismiss for failure to

state a claim filed by Defendants Barry Fry, Christopher Rosenberry, and Township of Logan

(ECF No. 108), motion to dismiss for failure to state a claim filed by Defendants Allegheny

Township and Leo Berg (ECF No. 110), motion to dismiss for failure to state a claim filed by

Defendant Richard A. Consiglio (ECF No. 116), motion to dismiss for failure to state a claim filed

by Defendants Rodney B. Estep, Jr., Allen Fochler, and Hollidaysburg Borough (ECF No. 118),

and motion to dismiss for failure to state a claim by Defendants Maureen Letcher and Hully Hoover

(ECF No. 120). The moving Defendants filed briefs in support of their motions to dismiss (ECF

Nos. 105, 109, 111, 117, 119, and 121). Plaintiff filed an omnibus response in opposition to the

motions to dismiss (ECF No. 124) and an accompanying brief in opposition (ECF No. 125). The

moving Defendants, with the exception of Defendants Allegheny Township, Chief Berg, and

Consiglio filed reply briefs (ECF Nos. 127, 132, 138, and 139). Plaintiff then filed a sur-reply in

3 Defendant Moyer filed an answer to the amended complaint on December 14, 2020 (ECF No.

107).

opposition to those reply briefs (ECF No. 142). The matter has been fully briefed and is ripe for

disposition.

For the reasons detailed below, the Court rules on the moving Defendants’ motions to

dismiss as follows: the motion to dismiss filed by Blair County (ECF No. 104) is GRANTED,

without prejudice; the motion to dismiss filed by Officer Fry, Officer Rosenberry, and Logan

Township (ECF No. 108) is GRANTED, with prejudice; the motion to dismiss filed by Chief Berg

and Allegheny Township (ECF No. 110) is DENIED; the motion to dismiss filed by former District

Attorney Consiglio (ECF No. 116) is GRANTED, without prejudice; the motion to dismiss filed

by Chief Estep, Officer Fochler, and Hollidaysburg Borough is DENIED (ECF No. 118); and the

motion to dismiss filed by Dr. Letcher and Ms. Hoover (ECF No. 120) is DENIED. As provided

below, Plaintiff is granted leave to file a second amended complaint on or before October 29,

2021 as to his claims against Defendants Consiglio and Blair County if Plaintiff chooses to pursue

those claims.

I. Factual and Procedural History

The following facts are accepted as true for the purpose of the pending motions to dismiss:

In August 2019, Plaintiff was a student at the Indiana University of Pennsylvania in

Indiana, Indiana County, Pennsylvania, pursuing a graduate degree (ECF No. 86 at (24-25). As

part of that program, Plaintiff was required to complete a “Field Experience” or “Internship”, and

Plaintiff was completing his internship with the Hollidaysburg Area School District. Jd. at □□□ 26,

28-29. Plaintiff alleges he began his internship on August 27, 2019, but was terminated in

November, 2019, from his position with Hollidaysburg Area School District shortly after he made

a “ChildLine” report in accordance with his mandatory reporting obligations. Jd. at (29, 41, and

44.

On Wednesday, November 20, 2019, between approximately 5:10 p.m. and 5:20 p.m.,

voicemail messages were left at five different schools within the Hollidaysburg Area School

District. Id. at § 46, 52, and 67. The voicemails messages communicated a “deadline” of Friday,

November, November 22, 2019 at 5:00 p.m. to either ignore him or use “resources against him”

or the caller would be “forced to reallocate the resources of the world.” Jd. at 47, 61, 69, and

71. The caller identified himself as “Mr. Fantastic”. Jd. at 449.

Officer Fochler responded to Charles W. Longer Elementary School at 9:14 a.m. on

November 21, 2019 to investigate one of the voicemail messages. Jd. at 951. He recorded the

message, then responded to the Hollidaysburg Junior High School to investigate a voicemail

message left there, recorded that message, and then went to Hollidaysburg Senior High School to

investigate yet another voicemail message. Jd. at 9954, 59. The messages all set similar

ultimatums and the caller identified himself as “Mr. Fantastic”. Jd. at §{60-62. While Officer

Fochler was listening to the voicemail message at Hollidaysburg Senior High School, Dr. Letcher,

principal of Hollidaysburg Senior High School, entered the room and allegedly falsely reported to

law enforcement that she knew the voice of the caller. /d. at (63. Dr. Letcher requested that Ms.

Hoover, Hollidaysburg School District guidance counselor, listen to the voicemail messages, and

Plaintiff alleges Dr. Letcher and Ms. Hoover falsely, and with the intent to mislead, identified

Plaintiff as the caller. /d. at | 64-65.

Officer Fochler also received information from Chief Berg of the Allegheny Township

Police Department regarding voicemail messages that were left at Frankstown Elementary School

and the Foot of Ten Elementary School. Jd. at §67. The caller in those messages also identified

himself as “Mr. Fantastic” and referenced a deadline of 5:00 p.m. on November 22, 2019. Id. at

468, 71. Officer Fochler then met with administrators from Hollidaysburg Area School District,

the Pennsylvania State Police, and the Allegheny Township Police Department and, collectively,

they decided that Officer Fochler would file a Criminal Complaint against Plaintiff and seek his

arrest, detention, and imprisonment. Jd. at §] 72-73.

On November 20, 2019, after the telephone calls were made to Hollidaysburg Area School

District, Javier Alberto Cantos, Jr. (“Mr. Cantos”), was detained and arrested by the Logan

Township Police Department. Jd. at § 85. When he was detained and arrested, Mr. Cantos told

Logan Township police officers, Officer Rosenberry and Officer Fry, that he had just called

Hollidaysburg Area Schools and “gave them a deadline to reallocate resources.” Jd. at 86.

Plaintiff alleges Officer Rosenberry and Officer Fry did not notify Hollidaysburg Area School

District or its resource officers and did not inform or share this information with other law

enforcement, including Hollidaysburg Borough Police Department, despite Mr. Cantos’ admission

to leaving the voicemails. Jd. at { 87.

On November 21, 2019, prior to Plaintiff's arrest and the day after the arrest of Mr. Cantos,

technical staff members at Hollidaysburg Area School District identified the phone number of the

individual who made the telephone calls and left the voicemail messages. Jd. at 488. Shortly

thereafter, Plaintiff alleges Chief Estep of the Hollidaysburg Police Department was able to utilize

law enforcement investigatory tools, which connected the identified telephone number to Mr.

Cantos. Jd. at § 89. Plaintiff asserts the telephone number was associated with Mr. Cantos was

not in any way associated with Plaintiff. Jd. at § 110.

Plaintiff claims that law enforcement, while investigating the alleged criminal actions, did

not attempt to contact Mr. Cantos or those close to him. Jd. at §{ 90-92. Instead, Plaintiff alleges

law enforcement — at the direction of Blair County District Attorney Consiglio (“Attorney

Consiglio”) — ignored Mr. Cantos’ confession and the evidence linking him to the voicemails and

pursued the arrest and imprisonment of Plaintiff. Jd. at 94-105.

On November 21, 2019, at approximately 1:30 p.m., at his residence in State College,

Pennsylvania, Plaintiff was questioned by law enforcement about the calls, denied any

involvement, but ultimately was arrested. Jd. at § 107-108, 120, 122, 124, and 126. Plaintiff

alleges Mr. Cantos was already identified, detained and had confessed to making the phone calls

when Plaintiff was arrested. Jd. at § 109. Plaintiff contends it should have been clear to law

enforcement that the voice on the voicemail messages did not, in any way, shape, or form, resemble

the voice of Plaintiff at the time of Plaintiffs arrest. Id. at (§ 127, 132. Plaintiff asserts Officer

Fochler, Chief Estep and Chief Berg should have known that an individual had already been

detained and confessed to leaving the voicemail messages. /d. at § 75-76. Plaintiff alternatively

alleges Officer Fochler and Chief Berg knew that the calls and/or voicemail messages originated

from a telephone not associated with Plaintiff, but nonetheless, proceeded to still meet with

Attorney Consiglio. Jd. at 477.

Plaintiff was transported to the Hollidaysburg Borough Police Department. Jd. at 4128.

Plaintiff was questioned by Chief Estep about his “cartoon voice”, which Plaintiff asserts

acknowledges Chief Estep recognized that the voicemail message did not sound like Plaintiff. Id.

at §131. Plaintiff provided an alibi to Chief Estep and Chief Berg during this questioning,

informing them that he was on the telephone with his girlfriend at the exact time the offending

telephone calls were made to the Hollidaysburg Area School District, and even showed the officers

his cellular telephone to prove that he was talking to his girlfriend at the time the offending calls

were placed. Jd. at 49136-137. However, Plaintiff continued to be interrogated by Chief Estep

and Chief Berg and was eventually transported to and imprisoned at the Blair County Prison. Jd.

at 9140,141, and 148. The Hollidaysburg Borough Police Department charged Plaintiff with

numerous crimes, including five (5) counts of each of the following criminal offenses: Terroristic

Threats — 18 Pa. C.S.A. § 2706(a)(3) —a felony of the third degree; Causing or Risking Catastrophe

— 18 Pa. C.S.A. § 3302(b) —a felony of the third degree; Harassment — 18 Pa. C.S.A. § 2709(a)(7)

—a misdemeanor of the third degree; and Disorderly Conduct — 18 Pa .C.S.A. § 5503(a)(1) — a

misdemeanor of the third degree. Jd. at 9149. Plaintiff was detained that night at Blair County

Prison and was arraigned the following morning on November 22, 2019. Jd. at 9150-151.

Plaintiff was strip-searched, his mugshot was taken, he was subjected to continued harassment by

corrections officers, and he was placed into a cell with other inmates until his release from prison

on bail on November 22, 2019. Jd. at 9] 152-153.

On Friday, November 22, 2019, the Pennsylvania State Police released a media advisory

that Plaintiff had been charged in connection with the telephone calls and/or voicemail messages.

Id. at (155. Plaintiff alleges numerous media and news outlets also released articles and news

stories about the incident, naming Plaintiff as the suspect who was arrested, imprisoned, and

charged in connection with the telephone calls and/or voicemail messages. Jd. at 4156. Plaintiff

alleges the Superintendent of Hollidaysburg Area School District, Dr. Robert J. Gildea, forwarded

a message to parents and guardians in the District informing them that Plaintiff had been charged

with placing the calls. /d. at (158.

On November 24, 2019, Defendants Sergeant Moyer and Chief Estep informed Plaintiff

that all pending charges would be dismissed, as they had identified the individual responsible for

making the telephone calls and/or leaving the voicemail messages at Hollidaysburg Area School

District, and apologized for their wrongdoing. Jd. at 159, 160.

In his amended complaint, Plaintiff sets forth the following nine causes of action against

the various Defendants:

Count I- False Arrest (42 U.S.C. § 1983) against Attorney Consiglio, Chief Estep,

Officer Fochler, Chief Berg, Hollidaysburg Officer Doe, Sergeant Moyer, Officer

Rosenberry, Officer Fry, Dr. Letcher, and Ms. Hoover;

Count II- False Imprisonment (42 U.S.C. § 1983) against Attorney Consiglio, Chief

Estep, Officer Fochler, Chief Berg, Hollidaysburg Officer Doe, Sergeant Moyer,

Officer Rosenberry, Officer Fry, Dr. Letcher, and Ms. Hoover;

Count III- Malicious Prosecution (42 U.S.C. § 1983) against Chief Estep, Officer

Fochler, Chief Berg, Hollidaysburg Officer Doe, and Sergeant Moyer;

Count IV- False Arrest (Pennsylvania Common Law) against Attorney Consiglio,

Chief Estep, Officer Fochler, Chief Berg, Hollidaysburg Officer Doe, Sergeant Moyer,

Officer Rosenberry, Officer Fry, Dr. Letcher, and Ms. Hoover,

Count V- False Imprisonment (Pennsylvania Common Law) against Attorney

Consiglio, Chief Estep, Officer Fochler, Chief Berg, Hollidaysburg Officer Doe,

Sergeant Moyer, Officer Rosenberry, Officer Fry, Dr. Letcher, and Ms. Hoover;

Count VI- Malicious Prosecution (Pennsylvania Common Law) against Chief Estep,

Officer Fochler, Chief Berg, Hollidaysburg Officer Doe, and Sergeant Moyer;

Count VII- Monell Claim — Failure to Train, Supervise, and Discipline against

Defendant Blair County, Defendant Hollidaysburg Borough, Defendant Allegheny

Township, and Defendant Logan Township;*

Count VIII- Negligent Infliction of Emotional Distress against Dr. Letcher and Ms.

Hoover; and

Count IX- Intentional Infliction of Emotional Distress against Dr. Letcher and Ms.

Hoover

As previously stated, with the exception of Sergeant Moyer, Defendants move for dismissal

of all claims against them in their motions.

II. Legal Standard

4 Defendants Borough of State College, State College Officer Doe, Pennsylvania State University

Department of University Police & Public Safety, and Defendant Officer John Doe of the

Pennsylvania State University Department of University Police & Public Safety were dismissed

from this case on November 30, 2020 pursuant to the Court’s approval of stipulations of dismissal

without prejudice as to those Defendants (ECF Nos. 84, 85, 87, and 88).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege “only enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. v. Twombly, 550 U.S. 544, 570

(2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief. Jd. at 664. Rule 8 “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements” will not

suffice. Id. To avoid dismissal, plaintiffs “must allege facts to ‘nudge [their] claims across the

line from conceivable to plausible.” Mann vy. Brenner, 375 F. App’x 232, 235 (3d Cir. 2010)

(quoting Bell Atl. v. Twombly, 550 U.S. at 570).

If. Analysis

The amended complaint (ECF No. 86) presents federal civil rights claims and pendant state

common law causes of action. The Court will view each of these claims separately for the different

Defendants.

A. False Arrest, False Imprisonment and Malicious Prosecution Claims Against Chief Berg,

Estep, and Officer Fochler

Plaintiffs federal false arrest, false imprisonment and malicious prosecution claims in this

matter are based on 42 U.S.C. §1983, which provides civil remedies against any person who, under

color of state law, deprives another person of rights protected by the United States

Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). Section 1983 does

not, by itself, confer any substantive rights, but rather serves as a vehicle to enforce rights granted

under the Constitution or federal law. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To state

a claim under Section 1983, a plaintiff must “prove a violation of the underlying constitutional

right.” Daniels v. Williams, 474 U.S. 327, 330 (1986).

To state a claim for false arrest under the Fourth Amendment, a plaintiff must establish:

(1) that there was an arrest; and (2) that the arrest was made without probable cause. Groman v.

Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995); Dowling v. City of Phila., 855 F.2d 136, 141

(3d Cir. 1988)). Similarly, to state a claim for false imprisonment, a plaintiff must allege that (1)

he was imprisoned, and (2) his imprisonment was unlawful. Glaspie v. Cty. of Gloucester, No.

CV 15-7691, 2018 U.S. Dist. LEXIS 148981, at *4 (D.N.J. Aug. 31, 2018). “[W]here 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, 47 F.3d at 636. “Thus, a claim of false

imprisonment in this context is derivative of a claim for arrest without probable cause.” Morency

v. City of Allentown, No. 5:19-cv-5304, 2020 U.S. Dist. LEXIS 71118, at *14 (E.D. Pa. Apr. 22,

2020) (internal citation omitted).

A claim for malicious prosecution is a slightly different type of claim. “[U]nlike the related

cause of action for false arrest or imprisonment,” malicious prosecution “permits damages for

confinement imposed pursuant to legal process.” Heck v. Humphrey, 512 U.S. 477, 484

(1994). To plead a claim of malicious prosecution, a plaintiff must allege (1) the defendants

initiated a criminal proceeding, (2) the proceeding ended in the plaintiff's favor, (3) the proceeding

was initiated without probable cause, (4) the defendants acted maliciously or for a purpose other

than bringing the plaintiff to justice, and (5) the plaintiff suffered a deprivation of liberty consistent

with the concept of seizure as a consequence of a legal proceeding. See McKenna v. City of Phila.,

582 F.3d 447, 461 (3d Cir. 2009). “Police officers (as opposed to prosecutors) may be liable for

malicious prosecution if they ‘conceal or misrepresent material facts’ to the prosecutor.” Thomas

10

v. City of Philadelphia, 290 F. Supp. 3d 371, 379 (E.D. Pa. 2018) (quoting Halsey v. Pfeiffer, 750

F.3d 273, 297 (3d Cir. 2014)). “In particular, an officer is liable if he ‘fails to disclose exculpatory

evidence to prosecutors, makes false or misleading reports to the prosecutor, omits material

information from the reports, or otherwise interferes with the prosecutor’s ability to exercise

independent judgment in deciding whether to prosecute.”” Thomas, 290 F. Supp. 3d at 379.

A finding of probable cause for his arrest would preclude Plaintiff's Section 1983 claims

for false arrest, false imprisonment, and malicious prosecution, and as such, Chief Berg, Chief

Estep, and Officer Fochler assert the claims against them should be dismissed as probable cause

existed to arrest Plaintiff. Probable cause exists where the facts and circumstances within an

officer’s knowledge “would warrant a reasonable person to believe that an offense has been or is

being committed by the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480,

484 (3d Cir. 1995). The question of whether probable cause exists in a §1983 civil damage suit is

generally one left for the jury to decide. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d

Cir. 2000) (citations and quotation marks omitted). However, a district court may decide whether

probable cause exists as a matter of law if the evidence, when viewed in the light most favorable

to the plaintiff, reasonably would not support a contrary factual finding. Sherwood v.

Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). This determination typically arises within the context

of a motion for summary judgment. See, e.g., Minatee v. Philadelphia Police Dept., 11-3609,

2012 U.S. App. LEXIS 22444, at *2 (3d Cir. 2012); Young v. City of Wildwood, 323 F. App’x 99,

101 (3d Cir. 2009); Henderson v. Bailey, 1:09-CV-36-SJM, 2011 U.S. Dist. LEXIS 34904 (W.D.

Pa. Mar. 31, 2011).

The Court must accept as true the factual allegations in the amended complaint (ECF No.

86), and under that standard, finds Plaintiff sufficiently pleaded the first element to his false arrest

11

claim as to Chief Berg, Chief Estep and Officer Fochler to show he was arrested. As to the second

element of probable cause, this issue is best left for the fact finder. While it is undisputed Dr.

Letcher and Ms. Hoover identified the voice on the messages to Hollidaysburg School District as

Plaintiff's voice to law enforcement, Plaintiff alleges technical staff members at Hollidaysburg

Area School District identified the phone number of the individual who made the telephone calls

prior to Plaintiff's arrest, and Chief Estep was able to utilize law enforcement investigatory tools

which connected the identified telephone number to Mr. Cantos. Id. at {]88- 89. However, Chief

Berg, Chief Estep, and Officer Fochler did not attempt to contact Mr. Cantos and proceeded

forward with arresting Plaintiff. Jd. at §90. The Third Circuit has stated it determines whether the

proceeding was initiated without probable cause based on the information available to officers at

the time the [arrest] warrant was sought. Waters v. Cheltenham Twp., 700 F. App’x 149, 153 Gd

Cir. 2017) (internal citation omitted) (emphasis in original). Plaintiff acknowledges that Chief

Berg, Chief Estep, and Officer Fochler did not have any knowledge of Mr. Cantos’ arrest or alleged

confession at the time they arrested Plaintiff, but irrespective of Mr. Cantos’ arrest, the facts against

those Defendants concerning their knowledge of the phone number the calls originated from, and

that the number was not associated with Plaintiff, supports an initial finding at this stage in the

proceedings that Plaintiff may proceed forward with his claim he was arrested without probable

cause.

As Plaintiff has adequately pleaded Chief Berg, Chief Estep, and Officer Fochler did not

have probable cause at the time of his arrest, Plaintiff has sufficiently pleaded his false

imprisonment claims as the parties do not appear to contest that Plaintiff was detained pursuant to

his arrest. Regarding Plaintiff's malicious prosecution claim, the four other elements of a

malicious prosecution claim against these Defendants, i.e. their initiation of a criminal proceeding,

12

the proceeding ending in Plaintiffs favor, acting maliciously or for a purpose other than bringing

Plaintiff to justice, and Plaintiff suffering a deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding, have all been sufficiently alleged in the amended

complaint (ECF No. 86). As to acting maliciously, Plaintiff specifically pleads Chief Berg, Chief

Estep, and Officer Fochler, among other Defendants, ignored the evidence linking Mr. Cantos to

the alleged criminal actions, including Mr. Cantos’ telephone number being identified as the

telephone number which called Hollidaysburg Area School District, and Plaintiff alleges these

Defendants’ conduct was malicious and willful (ECF No. 86 at 995, 193).

Chief Berg specifically contends he is not liable under Plaintiff's Section 1983 claims as

he was not the officer that initiated the criminal charges against Plaintiff. However, as raised in

Plaintiff's brief in opposition (ECF No. 125), Plaintiff alleges Chief Berg investigated the

voicemail messages that were left at Frankstown Elementary School and Foot of Ten Elementary

School and conveyed that information to Officer Fochler (ECF No. 86 at § 67). Plaintiff further

alleges Chief Berg received statements from Dr. Letcher and Ms. Hoover, id. at (74, and he knew

the telephone calls and voicemail messages originated from a telephone number not associated

with Plaintiff. Jd. at § 77. Plaintiff further alleges Chief Berg met with Attorney Consiglio to

discuss the filing of charges against Plaintiff, and Chief Berg requested Attorney Consiglio

undertake an investigation of Plaintiff. Id. at { 77, 82. As to Chief Berg’s investigation, Plaintiff

alleges Chief Berg ignored evidence linking Mr. Cantos to the alleged crimes and perpetuated

Plaintiff's detainment. Jd. at § 95, 131. Based on the allegations relating to Chief Berg’s pre-

arrest involvement, Plaintiff has sufficiently pleaded his Section 1983 claims as to Chief Berg.

Chief Berg, Chief Estep, and Officer Fochler alternatively allege they are entitled to

qualified immunity in this matter. To decide if an officer is entitled to qualified immunity, we use

13

the two-prong test established in Saucier v. Katz, 533 U.S. 194 (1982). See Peroza-Benitez v.

Smith, 994 F.3d 157, 165 (3d Cir. 2021). At the first prong, the court asks if the facts, “[t]aken in

the light most favorable to the party asserting the injury...show the officer’s conduct violated a

constitutional right.” Saucier vy, Katz, 533 U.S. 194, 201 (2001). At the second prong, the court

must decide whether the right at issue was clearly established at the time of defendant’s alleged

- misconduct. Pearson v. Callahan, 555 U.S. 223, 235-36 (2009). A “clearly established” right is

one that is sufficiently clear such that every reasonable official would have understood that what

he or she is doing violates that right. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015); Mammaro v.

New Jersey Division of Child Protection and Permanency, 814 F.3d 164, 169 (3d Cir. 2016). The

court may address these two prongs in whichever order it finds appropriate for the case. Pearson,

555 U.S. at 235.

While courts should resolve questions of qualified immunity at the earliest possible stage

of litigation, a finding of qualified immunity “‘will be upheld on a 12(b)(6) motion only when the

immunity is established on the face of the complaint.’” Thomas v. Indep. Twp., 463 F.3d 285, 291

(3d Cir. 2006) (quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)); Cf Newland v.

Reehorst, 328 Fed. App’x. 788, 791 n.3 (3d Cir. 2009) (“We caution, however, that it is 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.”). If the complaint fails to state a claim of

a violation of clearly established law on its face, “a defendant pleading qualified immunity is

entitled to dismissal before the commencement of discovery.” Thomas, 463 F.3d at

291 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Here, the immunity of Chief Berg, Chief Estep, and Officer Fochler is not established on

the face of the amended complaint (ECF No. 86) with regard to Plaintiff's Section 1983 claims.

14

The parties do not appear to dispute Plaintiff was prosecuted, arrested, and detained but contest

whether probable cause existed for Plaintiff’s arrest. As previously addressed, this determination

is typically one left for the factfinder to decide in a Section 1983 suit. Moreover, when the

evidence is viewed in the light most favorable to the Plaintiff, this case does not present a situation

where the Court could decide that probable cause existed as a matter of law.

Chief Berg, Chief Estep and Officer Fochler also argue they are entitled to qualified

immunity as there are no cases with sufficiently similar facts that would put them on notice their

involvement as alleged in the amended complaint (ECF No. 86) would be unconstitutional.

However, Plaintiff alleges these Defendants participated in the prosecution, arrest, and detention

of Plaintiff without probable cause, and it is well established that taking such actions without

probable cause is in violation of the Plaintiffs constitutional rights. See Berg v. Cnty. of

Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (“The Fourth Amendment prohibits arrest without

probable cause.”); Pinkney v. Meadville, No. 1:19-cv-167, 2020 U.S. Dist. LEXIS 60081, at *15-

16 (W.D. Pa. Apr. 3, 2020) (citing Baker y. McCollan, 443 U.S. 137, 142 (1979) (A false

imprisonment cause of action derives from the Fourteenth Amendment bar against a deprivation

of liberty without due process of law.”).°

Chief Estep and Officer Fochler also raise they are entitled to immunity because they relied

on the advice of District Attorney Consiglio for the filing of the criminal complaint and arrest of

Plaintiff. In Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), the Third Circuit held that:

> Plaintiff pleads his malicious claim under the “Fourth and/or Fourteenth Amendment” (ECF No.

86 at 9193). Regardless of Plaintiffs basis for pleading the claim in this fashion, case law

establishes malicious prosecution without probable cause is a violation of Fourth Amendment

rights. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (citing Johnson v. Knorr, 477 F.3d

75, 82 3d Cir. 2007).

15

[A] police officer who relies in good faith on a prosecutor’s legal opinion that the

arrest is warranted under the law is presumptively entitled to qualified immunity

from Fourth Amendment claims premised on a lack of probable cause. That reliance

must itself be objectively reasonable, however, because a wave of the prosecutor’s

wand cannot magically transform an unreasonable probable cause determination into

a reasonable one. Accordingly, a plaintiff may rebut this presumption by showing that,

under all the factual and legal circumstances surrounding the arrest, a reasonable

officer would not have relied on the prosecutor’s advice.

622 F.3d at 255-56 (internal citation omitted).

Plaintiff contends Chief Estep and Officer Fochler should have known probable

cause did not exist for the crimes for which Plaintiff was arrested and also contends the

voicemails themselves did not constitute a crime (ECF No. 125 at pp. 44-45). Irrespective

of whether the voicemails constituted a crime, the Court finds Plaintiff has adequately

asserted facts, which, if true, indicate a reasonable officer would not have relied on the

prosecutor’s advice. Plaintiff pleads Officer Fochler and Chief Berg would have known, or

should have known, with reasonable investigation that the telephone calls and/or voicemail

messages originated from a telephone number not associated with Plaintiff, and

alternatively, Officer Fochler and Chief Berg knew that the telephone calls and/or voicemail

messages originated from a telephone number not associated with Plaintiff and, nonetheless,

proceeded to meet with Attorney Consiglio about the filing of charges against Plaintiff (ECF

No. 86 at 4975-76).

It is not clear at this time what information Chief Berg and Officer Fochler did or did

not convey to Attorney Consiglio or what Attorney Consiglio’s role was in advising Chief

Berg and Officer Fochler. Factual issues as to whether a defendant who consulted counsel

gave that counsel complete and correct information may preclude an early finding of

qualified immunity. See Behne y. Halstead, 1:13-CV-0056, 2014 U.S. Dist. LEXIS 59109

(M.D. Pa. Apr. 29, 2014); See Spiess v. Pocono Mountain Reg’! Police Dep’t, 3:10-CV-287,

16

2013 U.S. Dist. LEXIS 41814 (M.D. Pa. Mar. 26, 2013), appeal dismissed, (Dec. 19, 2013)

(reliance on counsel did not provide immunity where the police knew the information they

gave the prosecutor was questionable, the prosecutor was already involved in the case and

thus not neutral, and the police did not have to make any split-second decisions).

Accordingly, at this early stage of the litigation, qualified immunity is not established on the

face of the amended complaint (ECF No. 86) with regard to Plaintiff's Section 1983 claims

against Chief Berg, Chief Estep and Officer Fochler.

B. Pennsylvania Common Law Claims Against Chief Berg, Chief Estep and Officer Fochler.

Plaintiff also raises state law claims of false arrest, false imprisonment, and malicious

prosecution against Chief Berg, Chief Estep, and Officer Fochler. Under Pennsylvania law, claims

for false arrest and false imprisonment are “essentially the same actions.” Pellegrino v. U.S.

Transp. Sec. Admin., 855 F. Supp. 2d 343, 357 (E.D. Pa. 2012) (internal quotation

omitted); Gagliardi v. Lynn, 285 A.2d 109, 111-12 (Pa. 1971). Though the fundamental elements

for aclaim of false arrest and false imprisonment may have slight variations, a plaintiff must prove:

“(1) the detention of another person (2) that is unlawful.” Braswell v. Wollard, 243 A.3d 973, 979

(Pa. Super. Ct. 2020) (citing Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. Ct.

2010); see also Kintzel v. Kleeman, 965 F. Supp. 2d 601, 608 (M.D. Pa. 2013). Detention of an

individual by a state officer who did not possess probable cause could be unlawful. See Renk v.

City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).

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 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,

17

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) .

The Court has already determined Plaintiff has sufficiently pleaded Chief Berg, Chief

Estep, and Officer Fochler initiated proceedings against Plaintiff and detained him, and the parties

do not dispute the criminal charges terminated in Plaintiffs favor. The Court has also already

determined Plaintiff has sufficiently pleaded a lack of probable cause for his arrest, and these

Defendants are not entitled to qualified immunity on the face of the amended complaint (ECF No.

86). These determinations apply to Plaintiff's state law claims against these Defendants as well.

Accordingly, the Court finds Plaintiff has sufficiently pleaded his state law claims against Chief

Berg, Chief Estep, and Officer Fochler.

C. Federal and State False Arrest and False Imprisonment Claims Against Officers

Rosenberry and Fry

Officers Rosenberry and Fry were not the officers who arrested or filed charges against

Plaintiff, and Plaintiffs amended complaint (ECF No. 86) does not contain any facts to show they

had any involvement in those decisions. Plaintiffs theory of liability against Officers Rosenberry

and Fry essentially is they should have contacted Hollidaysburg School District after Mr. Cantos

stated he made calls to Hollidaysburg School when these officers took him into custody on

November 20, 2019. However, Plaintiff has failed to plead facts to show Officers Rosenberry and

Fry were aware these calls were the subject of a criminal investigation by another law enforcement

department, let alone that they had knowledge Plaintiff was being investigated by another law

enforcement department for these calls. See Rode v. Dellarciprete, 845 F 2d 1195, 1207 3d Cir.

18

1988) (Liability under 42 U.S.C. § 1983 can arise only where an official had “personal involvement

in the alleged wrongs”).

The Court need not reach the qualified immunity argument raised by Officers Rosenberry

and Fry as it finds Plaintiff has failed to cite to any authority that their actions satisfy the required

personal involvement element of Plaintiff's claims under Section 1983 or the elements of

Plaintiffs Pennsylvania state law claims. Given Plaintiff's acknowledgment Officers Rosenberry

and Fry did not participate in his prosecution and arrest, the Court will dismiss the claims against

them with prejudice as amendment would not cure these claims.

D. Federal and State False Arrest and False Imprisonment Claims Against Attorney Consiglio

In the amended complaint (ECF No. 86), Plaintiff alleges Attorney Consiglio allegedly

provided Officer Fochler, with the “approval, encouragement, and/or specific direction, guidance,

and legal advice” to file the criminal complaint, “provided legal advice and...including advice and

recommendations related to reasonable suspicion and probable cause” allegedly “offered and

provided legal advice...during their investigation into the alleged criminal offenses” and “directed

[the officers] to gather evidence against Plaintiff.” Jd. at § 78, 97-99. Plaintiff further alleges

Attorney Consiglio personally met with and directed the law enforcement officers to locate and

interview Plaintiff and “to arrest, detain and imprison Plaintiff even though he knew that the phone

number from which the voicemail originated was not from Plaintiffs cellular telephone.” Jd. at

100-103. Plaintiff also alleges “Attorney Consiglio, at the request of Officer F ochler, Chief

Berg, and other law enforcement, undertook an investigation of Plaintiff, requested that law

enforcement gather specific evidence, requested that law enforcement pursue Plaintiff's

whereabouts, and requested that law enforcement detain, seize, and/or arrest and imprison

Plaintiff.” 7d.

19

Attorney Consiglio argues in his motion to dismiss (ECF No. 116) he is entitled to absolute

prosecutorial immunity, and alternatively, qualified immunity, because he was acting in his

prosecutorial role. Determining which of a prosecutor’s actions were prosecutorial in nature “is a

fact-specific” inquiry. Weimer v. Cty. of Fayette, 972 F.3d 177, 187 (3d Cir. 2020). The court

must “ascertain just what conduct forms the basis for the plaintiffs cause of action” and

“It]hen...determine what function (prosecutorial, administrative, investigative, or something else

entirely) that act served.” Jd. (quoting Fogle v. Sokol, 957 F.3d 148, 161 (3d Cir. 2020) (internal

quotation marks and citation omitted)). “[W]hile we tend to discuss prosecutorial immunity based

on alleged acts, our ultimate analysis is whether a defendant has established absolute prosecutorial

immunity from a given claim.” Id. (emphasis in original). The Third Circuit requires the

dissection of the prosecutor’s actions to determine whether they were prosecutorial or investigative

in nature. Weimer, 972 F.3d at 188. The court should define each act pleaded in the complaint to

determine which acts are investigative and which are prosecutorial. Jd. (internal quotations

omitted).

The amended complaint (ECF No. 86) has very few facts as to what role Attorney Consiglio

played in Plaintiff's arrest. Plaintiff summarily pleads Attorney Consiglio “undertook an

investigation of Plaintiff’ and “requested that law enforcement gather specific evidence” (ECF

No. 86 at 82), and Plaintiff has taken care not to allege claims based on Attorney Consiglio

assisting in filing/and or approving the criminal complaint against Plaintiff, as it is well established

Attorney Consiglio would be entitled to absolute immunity on such claims. Weimer, 972 F.3d at

189. The acts Plaintiff attributes to Attorney Consiglio overlap with the acts alleged against other

law enforcement Defendants concerning the events leading up to Plaintiffs arrest and detention.

However, unlike the allegations against Chief Berg, Chief Estep, and Officer Fochler, the amended

20

complaint (ECF No. 86) fails to assert any specific details concerning Attorney Consiglio’s role in

these events.

Without any specific description of what actions Attorney Consiglio took in this

investigation, it is impossible for the Court to determine whether those actions fall into the quasi-

judicial or investigative categories. Additionally, as to the allegations relating to Attorney

Consiglio advising Officer Fochler, it is not clear from Plaintiffs allegations what such advice was

and whether it concerned an investigation or related to the filing and approving of a criminal

complaint. Accordingly, the Court will grant Attorney Consiglio’s motion to dismiss (ECF No.

116) but do so without prejudice and allow Plaintiff to file a second amended compliant if he

wishes to pursue his claims against Attorney Consiglio. As the Court will allow for amendment

of these claims, it will not address any other arguments raised by Attorney Consiglio to the

allegations currently pleaded against him as such allegations may be rendered moot through

amendment.

E. Monell Claims Against Defendant Blair County, Defendant Hollidaysburg Borough,

Defendant Allegheny Township, and Defendant Logan Township

Municipal liability arises when a governmental entity causes an employee to violate

another’s constitutional rights by an official custom or policy. See Monell vy. Dep’t of Soc. Servs.,

436 U.S. 658, 690-94 (1978); Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998). To

establish liability, a plaintiff must identify the challenged policy or custom, attribute it to the

municipality itself, and show a causal link between the execution of the policy or custom and the

injury suffered. Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). A policy

exists “when a ‘decisionmaker possess[ing] final authority to establish municipal policy with

respect to the action’ issues an official proclamation, policy, or edict.” Andrews v. City of Phila.,

895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481(1986)). A

21

custom may be formed when the “‘practices of state officials [are] so permanent and well settled’

as to virtually constitute law.” Jd. (quoting Monell, 436 U.S. at 691).

A municipality may be held liable for constitutional violations that result from inadequate

training of its employees if the failure to train constitutes a custom of the municipality. Connick

Thompson, 563 U.S. 51, 61 (2011). The failure must reflect “deliberate indifference to the

[constitutional] rights of persons with whom the police come into contact.” Colburn v. Upper

Darby Twp., 946 F.2d 1017, 1028 (3d Cir. 1991) (quoting City of Canton vy. Harris, 489 U.S. 378,

388 (1989)). A showing of deliberate indifference requires that “(1) municipal policymakers know

that employees will confront a particular situation; (2) the situation involves a difficult choice or a

history of employees mishandling; and (3) the wrong choice by an employee will frequently cause

deprivation of constitutional rights.” Carter v. City of Phila., 181 F.3d 339, 357 Cir.

1999). Ordinarily, plaintiff must show a “pattern of similar [constitutional] violations” to prove

deliberate indifference in the failure to train context. Connick, 563 U.S. at 63. However, the

Supreme Court has indicated that a single incident may evince deliberate indifference when “the

need to train officers...can be said to be so obvious” in itself and the lack thereof would predictably

lead to recurrent rights violations. City of Canton, 489 U.S. at 390 n.10; see also Thomas v.

Cumberland Cty., 749 F.3d 217, 223-25 (3d Cir. 2014).

As previously stated, Plaintiff has failed to plead a claim against Officers Rosenberry and

Fry, and likewise, Plaintiff has failed to adequately establish a causal link between any custom or

policy of Logan Township and his arrest. Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir.

1996) (holding that Monell limits municipal liability to only those constitutional torts actually

caused by the municipality), Similarly, the Court has also already dismissed the claims against

Attorney Consiglio without prejudice, and will correspondingly dismiss the Monell claim against

22

Blair County premised on Attorney Consiglio’s actions without prejudice to Plaintiff to file a

second amended complaint if he chooses to pursue a Monell claim against Blair County.

The Court has already determined that Plaintiff's claims against Chief Berg, Chief Estep,

and Officer Fochler will survive at this early stage of the litigation. Accordingly, the Court finds

Plaintiff has adequately pleaded a Monell claim against municipal Defendants Hollidaysburg

Borough and Allegheny Township. Plaintiff alleges his arrest resulted from a failure to train

Hollidaysburg Borough and Allegheny Township law enforcement regarding proper police

investigative practices, including, but not limited to, the responsibility to effectuate detentions,

seizures, and/or arrests only upon a finding of probable cause and the responsibility to consider all

reasonable and known facts and circumstances prior to arrest and detention of an individual or

suspect (ECF No. 86 at §221 (a)-(e)). In order to ultimately succeed on his failure to train claims

based on the single incident of his arrest, Plaintiff essentially must show the need for training was

so obvious based on the alleged violation of Plaintiffs constitutional rights “that it is tantamount

to deliberate indifference on the part of the municipal defendants.” Watson v. Witmer, 183 F.

Supp. 3d 607, 615 (M.D. Pa. 2016) (“The ‘most tenuous’ nature of failure-to-train theories of

municipal liability, exacerbated herein by [plaintiff’s] recourse to the unwonted ‘single incident’

iteration of deliberate indifference, suggests the difficulty [plaintiff] faces in proving his claim.”)

(internal citations omitted). Nonetheless, Plaintiffs allegations survive at the present stage. Id.

The Court will deny Allegheny Township’s and Hollidaysburg Borough’s motions to dismiss

(ECF Nos. 110 and 118) as to the Monell claims against these municipal entities.

F. Claims Against Dr. Letcher and Ms. Hoover

1. Federal and State False Arrest and False Imprisonment Claims

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In the context of a claim under 42 U.S.C. § 1983, the Supreme Court of the United States

has stated:

Private persons, jointly engaged with state officials in the prohibited action, are acting

‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not

require that the accused be an officer of the state. It is enough that he is a willful

participant in joint activity with the State or its agents.

United States v. Price, 383 U.S. 787, 794 (1966); see also Lugar v. Edmondson Oil Co.,

457 U.S, 922 (1982).

“In order to prove a civil conspiracy under § 1983, [a] plaintiff] must demonstrate (1) an

agreement between two or more conspirators (2) to deprive the plaintif]f] of a constitutional right,

(3) under color of state law.” Glass v. City of Philadelphia, 455 F. Supp. 2d 302, 357 (E.D. Pa.

2006). In order to properly plead the existence of an agreement, “[t]he plaintiff must make specific

factual allegations of combination...or understanding among all or any of the defendants to plot,

plan, or conspire to carry out the alleged chain of events.” Hammond y. Creative Financial

Planning, 800 F. Supp. 1244, 1250 (E.D. Pa. 1999). Regarding a private actor’s involvement in a

conspiracy, the Third Circuit has held liability for a civil conspiracy under 42 U.S.C. § 1983 “may

be imputed to those who have not actually performed the act denying the constitutional rights.”

Kist v. Fatula, No. 3:2006-67, 2007 U.S. Dist. LEXIS 60615, at *23 (W.D. Pa. Aug. 17, 2007)

(citing Concrete County Corp. v. Town of Roxbury, 442 F.3d 159, 174 (3d Cir. 2006).

Plaintiff's amended complaint alleges Dr. Letcher and Ms. Hoover acted in concert with

the law enforcement Defendants to deprive Plaintiff of his constitutional rights (ECF No. 86 at

9175, 186, 200, and 210). The amended complaint alleges Dr. Letcher and Ms. Hoover

knowingly, and with reckless indifference, provided false and misleading information to law

enforcement officers while actively and willfully participating in the law enforcement

investigation with the purpose of subjecting Plaintiff to an arrest, detention, and criminal charges.

24

Id. at 99173, 184, 198, and 208. These allegations, viewed in the light most favorable to the

Plaintiff, are enough to support the inference that Dr. Letcher and Ms. Hoover were “willful

participants” in the activity that deprived the Plaintiff of his constitutional rights, and that they

may therefore potentially be considered state actors for purposes of the Section 1983 claims

Plaintiff alleges against them at this early stage of the case. See Guttshall v. Lively, No. 1:17-CV-

00241, 2017 U.S. Dist. LEXIS 173224, at *31 (M.D. Pa. Oct. 18, 2017).

Dr. Letcher and Ms. Hoover rely on decisions from district courts sitting in diversity

jurisdiction that reached a different result as to the interpretation of Pennsylvania state law claims

of false arrest and imprisonment. Naumov y. Progressive Ins. Agency, Inc., Civil Action No. 08-

622, 2008 U.S. Dist. LEXIS 110731, at *14 (W.D. Pa. Dec. 17, 2008) (court disagreed that

knowingly providing false or misleading information to authorities, even where it results in the

detention of another, is adequate to state a claim for false imprisonment); Thomas y. IPC □□□□□

Corp., No. 02-8049, 2004 U.S. Dist. LEXIS 2451, at *12 (E.D. Pa. Feb. 12, 2004) (granting

summary judgment on basis that private defendant could not be held liable for false arrest and

imprisonment claims when there was no evidence defendant participated in arrest and detainment

of plaintiff). However, the Court must consider how such claims have been treated in Pennsylvania

state courts. In Gares v. Willingboro Township, 90 F.3d 720, (3d Cir. 1996), the Third Circuit

stated that:

In adjudicating a case under state law, we are not free to impose our own view of what

state law should be; rather, we are to apply state law as interpreted by the state’s

highest court in an effort to predict how that court would decide the precise legal issues

before us. In the absence of guidance from the state’s highest court, we are to consider

decisions of the state’s intermediate appellate courts for assistance in predicting how

the state's highest court would rule.

Id. at 725.

25

In predicting state law, we cannot disregard the decision of an intermediate appellate court unless

we are convinced that the state’s highest court would decide otherwise. Rolick v. Collins Pine Co.,

925 F.2d 661, 664 (3d Cir. 1991).

Recently, in Braswell v. Wollard, 243 A.3d 973, 980 (Pa. Super 2020), the Pennsylvania

Superior Court considered whether the trial court erred in granting summary judgment in favor of

private citizens as to plaintiff Braswell’s claims of false arrest and false imprisonment, noting,

under Pennsylvania law, these two claims have virtually identical theories of liability. Jd. at 979-

980. The Pennsylvania Superior Court observed these claims typically are lodged against

defendants who have actually held the plaintiff in custody, such as police, but not defendants

whose statements have prompted police to arrest the plaintiff. Jd. at 980. Like in this case, there

were no allegations that the private citizen defendants detained Braswell. The court was instead

charged with determining as a preliminary matter whether the claims of false arrest and false

imprisonment are applicable to such private citizen parties who have not themselves taken the

plaintiff into custody. Jd. Ultimately, the Pennsylvania Superior Court stated:

Although we have found no controlling Pennsylvania decisions on this specific point,

Pennsylvania law has been interpreted to allow such claims against private parties

alleged to have indirectly caused an arrest by making a false report. See Doby v.

Decrescenzo, 1996 U.S. Dist. LEXIS 13175, at *13 (E.D. Pa. Sept. 9, 1996) (finding

defendant could be liable for false arrest/imprisonment “if he has either knowingly

provided false information to authorities or knowingly provided incomplete,

misleading information to the authorities which resulted in the detention of

another.”); see also Martucci v. Borough of Milford, 2018 U.S. Dist. LEXIS 60907,

2018 WL 175572 (E.D. Pa. Apr. 10, 2018); Davila v. United States, 247 F. Supp. 3d

650, 658-59 (W.D. Pa. 2017); Reiber v. Fillipone, 2016 U.S. Dist. LEXIS 166446

(E.D. Pa. Dec. 2, 2016); Gilbert v. Feld, 788 F. Supp. 854, 862 (E.D. Pa. 1992).

The Braswell Court determined there was sufficient evidence from which a jury could

reasonably infer that the private citizen defendants’ statements to police were knowingly false, and

a determinative factor in the police’s decision to arrest Braswell. Id. at 980. In this case, Plaintiff

26

has sufficiently pleaded his state law claims of false arrest and false imprisonment by asserting Dr.

Letcher’s and Ms. Hoover’s statements were knowingly false and were relied on in the decision to

arrest Plaintiff.

Dr. Letcher and Ms. Hoover rely on the case of Pawlowski v. Smorto, 588 A.2d 36, 41 (Pa.

Super. Ct. 1991) to contend their statements to law enforcement are absolutely privileged (ECF No.

121 at p. 15). However, the claim at issue in Pawloski was defamation, and courts have counseled

for a different result in cases, like this one, involving malicious prosecution and conspiracy claims.

See Guttshall y. Lively, No. 1:17-CV-00241, 2017 U.S. Dist. LEXIS 173224, at *31 (M.D. Pa. Oct.

18, 2017) (defendant not entitled to immunity when plaintiff alleged defendant unlawfully

conspired with law enforcement to cause plaintiff to be subjected to criminal process without

probable cause). Pawloski does not afford immunity as Plaintiff alleges Dr. Letcher and Ms.

Hoover actively participated in the investigation of Plaintiff and provided false information to law

enforcement officials to secure his arrest and detention.

Dr. Letcher and Ms. Hoover also make an argument they are entitled to qualified immunity

if they are state actors. Dr. Letcher and Ms. Hoover are not entitled to qualified immunity at this

time based on the face of the amended complaint (ECF No. 86) as Plaintiff's alleges they actively

participated in the investigation and provided false information to law enforcement officials.

Further, the Court has already found that the issue of probable cause in this case cannot be

determined at this early stage of the litigation, but must await a fully documented motion for

summary judgment or trial.

2. Negligent Infliction of Emotional Distress □□□ Intentional Infliction_of Emotional

Distress Claims

The cause of action for negligent infliction of emotional distress (“NIED”) is restricted to

four factual scenarios: “(1) situations where the defendant had a contractual or fiduciary duty

27

toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a

zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the

plaintiff observed a tortious injury to a close relative.” Toney v. Chester County Hosp., 961 A.2d

192, 197-98 (Pa. Super. Ct. 2008). To state a claim for intentional infliction of emotional distress

(“IIED”) under Pennsylvania law, a plaintiff must allege that the defendant’s “(1) extreme and

outrageous conduct, (2) intentionally or recklessly, (3) caused, (4) severe emotional

distress.” Jordan v, City of Philadelphia, 66 F. Supp. 2d 638, 642 (E.D. Pa. 1999) (citing Kazatsky

v. King David Memorial Park, 527 A.2d 988, 991 (1987)). The Court finds the amended complaint

(ECF No. 86) contains sufficient allegations to state the NIED and IED claims against these

Defendants. Specifically, the allegation that Dr. Letcher and Ms. Hoover knowingly provided a

false identification of Plaintiffs voice to law enforcement satisfies the elements of the cause of

action. At this early stage of the proceedings, these claims survive Dr. Letcher’s and Ms. Hoover’s

motion to dismiss (ECF No. 120).

Dr. Letcher and Ms. Hoover contend they are entitled to immunity under the Political

Subdivision Torts Claim Act (PSTCA) as to Plaintiff's NIED claim against them. The PSTCA

grants local agencies, such as school districts and their employees, broad tort immunity. See, SF.

v. Del. Valley Sch. Dist., 2008 U.S. Dist. LEXIS 83473, *22 (M.D. Pa. Oct. 20, 2008) (citing

Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006)). In pertinent part, the PSTCA states: [e]xcept

as otherwise provided in this subchapter, no local agency shall be liable for any damages on

account of any injury to a person or property caused by any act of the local agency or an employee

thereof or any other person. 42 Pa. C.S. § 8541. In order for liability to be imposed, 42 Pa.C.S. §

8542(a) sets forth three conditions that each must be met: (1) the damages must be recoverable

under common law or a statute creating a cause of action if the injury were caused by a person not

28

having available a defense under 42 Pa. C.S. § 8541; (2) the injury must have been caused by the

negligent acts of the local agency or an employee of the local agency acting within the scope of

his or her office or duties; and (3) the negligent action must fall within one of the exceptions to

governmental immunity set forth in 42 Pa. C.S. § 8542(b). Lindstrom v. City of Corry, 563 Pa.

579, 763 A.2d 394 (2000). It is plaintiffs burden to demonstrate that all three conditions have

been met. Sweeney v. Merrymead Farm, Inc., 799 A.2d 972, 977 (Pa. Cmwlth. 2002).

Dr. Letcher and Ms. Hoover argue their identification of Plaintiff's voice was undertaken

during the course and scope of their employment with the Hollidaysburg Area School District, and

Plaintiff cannot meet any of the three conditions to impose liability against them (ECF No. 121 at

p. 14). However, Plaintiff contends that Dr. Letcher and Ms. Hoover were acting outside the

course and scope of their employment when they inserted themselves into an investigation being

conducted by law enforcement (ECF No. 125 at p. 46). Plaintiff has also sued these Defendants

in their individual capacity. Based on the allegations in the amended complaint (ECF No. 86), Dr.

Letcher and Ms. Hoover are afforded immunity under the PSTCA at this time.

Additionally, insofar as Dr. Letcher and Ms. Hoover move to dismiss Plaintiff's allegations

against them for punitive damages on the basis that punitive damages are not permitted against a

school district, Plaintiff has pleaded these damages against Dr. Letcher and Ms. Hoover as

individuals as Plaintiff contends his claims against them are based on their actions outside the

course and scope of their employment. Plaintiff has adequately asserted a claim for punitive

damages against Dr. Letcher and Ms. Hoover.

Dr. Letcher and Ms. Hoover also assert Plaintiff has failed to adequately plead his NED

claim against them as Plaintiff has not alleged extreme and outrageous conduct. These Defendants

correctly state “[l]iability for ITED ‘has been found only where...the case is one in which the

29

recitation of the facts to an average member of the community would arouse his resentment against

the actor, and lead him to exclaim, ‘outrageous.’” Smith v. School Dist., 112 F. Supp. 2d 417, 428

(citing Hunger v. Grand Cent. Sanitation, 670 A.2d 173 (Pa. Super 1996)). In this case, Plaintiff

has alleged Dr. Letcher and Ms. Hoover knowingly and with reckless indifference provided false

and misleading information to law enforcement with the purpose of subjecting Plaintiff to an arrest,

detention and criminal charges and conspired with law enforcement to effect the arrest and

imprisonment of Plaintiff (ECF No. 86 at 49173, 175, 184, 186, 198, 200, 208, and 210). Plaintiff

also pleads that these Defendants engaged in this conduct in retaliation for Plaintiff making a

ChildLine report in his role as a mandated reporter. Jd. at {§228 and 237. Based on these

allegations, the Court finds Plaintiff has adequately stated a claim for intentional infliction of

emotional distress. See Gleeson v. Robson, Nos. 3:CV-02-1747, 3:CV-03-0552, 2005 U.S. Dist.

LEXIS 43310, at *90 (M.D. Pa. May 6, 2005); Gilbert v. Feld, 788 F. Supp. 854, 857, 862 (E.D.

Pa. 1992) (holding that claim had been stated where defendants were alleged to have “procured

the institution of criminal charges against [plaintiff] by providing false and misleading information

to and by concealing information from” the district attorney’s office). Accordingly, the Court

finds Plaintiff has adequately pleaded his federal and state law claims against Dr. Letcher and Ms.

Hoover, and their motion to dismiss (ECF No. 120) is denied.

IV. Conclusion

For the reasons detailed below, the Court rules on the moving Defendants’ motions to

dismiss as follows: the motion to dismiss filed by Blair County (ECF No. 104) is GRANTED

without prejudice; the motion to dismiss filed by Officer Fry, Officer Rosenberry, and Logan

Township (ECF No. 108) is GRANTED, with prejudice; the motion to dismiss filed by Chief Berg

and Allegheny Township (ECF No. 110) is DENIED; the motion to dismiss filed by former District

30

Attorney Consiglio (ECF No. 116) is GRANTED, without prejudice; the motion to dismiss filed

by Chief Estep, Officer Fochler, and Hollidaysburg Borough is DENIED (ECF No. 118); and the

motion to dismiss filed by Dr. Letcher and Ms. Hoover (ECF No. 120) is DENIED. Plaintiff is

granted leave to file a second amended complaint on or before October 29, 2021 as to his claims

against Defendants Consiglio and Blair County as provided herein if Plaintiff chooses to pursue

those claims.

An appropriate Order will follow.

“etd ie} □□□

~ Stephanie L. Haines’

United States District Judge

31

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT M. VINOSKY, )

Plaintiff,

VS. Civil Action No, 3:20-cv-134

) Judge Stephanie L. Haines

THE HONORABLE RICHARD A. )

CONSIGLIO, et al., )

Defendants.

ORDER

AND NOW, this 29" day of September, 2021, for the reasons set forth in the accompanying

Opinion, IT IS HEREBY ORDERED:

1. The motion to dismiss filed by Defendant Blair County (ECF No. 104) is GRANTED,

without prejudice;

2. The motion to dismiss filed by Defendants Fry, Rosenberry, and Township of Logan

(ECF No. 108) is GRANTED, with prejudice;

3. The motion to dismiss filed by Defendants Leo Berg and Allegheny Township (ECF

No. 110) is DENIED;

4, The motion to dismiss filed by Defendant Consiglio (ECF No. 116) is GRANTED,

without prejudice;

5. The motion to dismiss filed by Defendants Estep, Fochler, and Hollidaysburg Borough

is DENIED;

6. The motion to dismiss filed by Defendants Letcher and Hoover (ECF No. 120) is

DENIED; and, :

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7. Plaintiff is granted leave to file a second amended complaint on or before October 29,

2021 as to his claims against Defendants Consiglio and Blair County as provided in the

accompanying Opinion of the Court.

ww AMEE PLACA. feted Mig

“Stephanie L. Haines

United States District Judge

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