ALIOTA v. MILLCREEK TOWNSHIP SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LOUIS J. ALIOTA, )

Plaintiff ) C.A. No. 23-188 Erie

Vv District Judge Susan Paradise Baxter

MILLCREEK TOWNSHIP SCHOOL

DISTRICT, et al., )

Defendants )

MEMORANDUM OPINION

I. INTRODUCTION

A. Relevant Procedural History

Plaintiff Louis J. Aliota, an adult resident of Erie County, Pennsylvania, initiated this

civil rights action on June 21, 2023, by filing a complaint pursuant to 42 U..S.C. § 1983, against

Defendant Millcreek Township School District ((MTSD”) and the following individual

Defendants, all of whom are past and/or present members of MTSD’s Board of Directors:

Meredith Bollheimer (“Bollheimer”), Christopher Busko (“Busko”), John DiPlacido

(“DiPlacido”), Donnie Hosford (“Hosford”), Janine McClintic (“McClintic”), John Pitzer

(“Pitzer”), Donna Reese (“Reese”), Karen Morahan (“Morahan”), Gary Winschel (“G.

Winschel”), Lisa Cappabianca (“Cappabianca”), Jason Dean (“Dean”), J. Michael Lindner

(“Lindner”), Shirley Winschel (“S. Winschel”), Rick Lansberry (“Lansberry”), Janis Filbeck

(“Filbeck”), Sallie Newsham (“Newsham”), and Kim Lupichuk (“Lupichuk”).

All of Plaintiffs claims in this case arise from counterclaims for defamation that were

asserted against Plaintiff by MTSD’s Board of Directors (“Board”) in response to a lawsuit

Plaintiff filed against the Board on June 29, 2017 in the Court of Common Pleas of Erie County,

Pennsylvania. Plaintiff alleges five causes of action against all Defendants stemming from those

counterclaims:

Count I - violation of Plaintiff's First Amendment right to free speech

Count II - malicious use of process under 42 U.S.C. § 1983

Count III — abuse of process under 42 U.S.C. § 1983

Count IV — negligence under Pennsylvania state law

Count VI — abuse of process under Pennsylvania state law!

On August 22, 2023, Defendants filed a motion to dismiss Plaintiffs complaint, arguing

that: (1) all claims other than Count II are barred by the applicable statute of limitations; (2) all

claims other than Count IV fail to state causes of action upon which relief may be granted;

(3) Defendants are immune from liability on Plaintiff's state law claims, under the Pennsylvania

Political Subdivision Tort Claims Act; (4) and the individual Defendants are entitled to qualified

immunity on Counts I, II, and III. [ECF No. 17]. Plaintiff subsequently filed a response in

opposition to Defendants’ motion [ECF No. 23], and Defendants have since filed a reply [ECF

No. 26]. This matter is now ripe for consideration.

B. Relevant Factual History’

In 2015, Plaintiff was elected to serve as a member of MTSD’s Board (ECF No. 1, at

{ 17). During his tenure as a member of the Board, Plaintiff requested that he be supplied with

information concerning MTSD’s activities under “Right-to-Know” laws (Id. at § 18).

Count V is erroneously labeled “Count VI” in the complaint and will be referred to as such for the sake of

consistency.

The factual history set forth herein has been gleaned from the allegations of Plaintiff's complaint, which are

accepted as true for purposes of considering Defendants’ motion, to the extent such allegations are well-pleaded.

2

On June 19, 2017, Plaintiff filed a lawsuit against the Board and Superintendent William

Hall (“Hall”) in the Court of Common Pleas of Erie County, Pennsylvania (“Aliota Action”),

alleging that the Board improperly denied him access to certain records of MTSD that he was

entitled to as an elected Board member (Id. at §f 19, 21). The lawsuit sought a writ of

mandamus, a preliminary injunction, and a permanent injunction (Id. at 22). In response to the

lawsuit, the Board and Hall filed an answer and counterclaims against Plaintiff, in his individual

capacity, on November 29, 2017 (Id. at §§ 23-24). Two of the counterclaims were for

defamation; the first on behalf of the Board and the second on behalf of Hall (id. at {J 25-27).

The Board and Hall were represented by the same legal counsel, who also represents Defendant

MTSD (id. at 28-29). Plaintiff alleges that the individual Defendants approved both the

counterclaims and the funding of the same, and Defendant MTSD also approved the

counterclaims and funded the legal fees and litigation costs for both the Board and Hall (Id. at

qq 31-33, 36).

On March 19, 2020, Plaintiff filed an Amended Complaint for declaratory judgment and

permanent injunction against the Board and Hall in a separate lawsuit (“Declaratory Judgment

Action”) alleging that Defendant MTSD was prohibited from using taxpayer funds to pay the

legal fees of the Board and Hall and using the same funds to adjudicate the counterclaims (Id. at

4¥ 38-39).

In September 2021, Plaintiff filed a motion for summary judgment as to the

counterclaims for defamation, arguing that it was unconstitutional for the Board, as a

government entity, to file and maintain a lawsuit in its own right against Plaintiff (Id. at □□ 40-

41). On January 17, 2023, the court granted summary judgment in favor of Plaintiff, concluding

that the Board (through Defendant MTSD) could not bring and fund the counterclaim on its

behalf, nor could it fund Hall’s counterclaim (Id. at J] 44, 47).

Il. DISCUSSION

A. Statute of Limitations — Section 1983 Claims

Count I (First Amendment retaliation) and Count III (Abuse of Process) of

Plaintiff's complaint are both brought under 42 U.S.C. § 1983. “The length of the statute of

limitations for a § 1983 claim is governed by the personal injury tort law of the state where the

cause of action arose.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009), Here, all of Plaintiff's

claims arose in Pennsylvania. “The statute of limitations for a § 1983 claim arising in

Pennsylvania is two years.” Id., citing 42 Pa. C.S. § 5524(2). Thus, Plaintiff's Section 1983

claims must have accrued on or before June 21, 2021 (within two years of the date this action

was filed).

When a claim accrues for purposes of the statute of limitations is governed by federal

law. Id. “Under federal law, a cause of action accrues, and the statute of limitations begins to run,

when the plaintiff knew or should have known of the injury upon which [his] action is based.”

Id. (internal citations and quotation marks omitted). Stated another way, a § 1983 claim accrues

“when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file

suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (citations and internal

quotation marks omitted). Generally, a cause of action accrues from the “time of the last event

necessary to complete the tort, usually at the time the plaintiff suffers an injury.” Kach, 589 F 3d

at 634, citing United States v. Kubrick, 444 U.S. 111, 120 (1979).

1. Count I — First Amendment Retaliation

Defendants assert that Plaintiffs cause of action for retaliation accrued on November 29,

2017, being the date on which the counterclaims for defamation were filed in the Aliota Action.

Thus, according to Defendants, Plaintiffs claim accrued over five years before the complaint in

this case was filed and is, therefore, barred by the two-year statute of limitations.

In response, Plaintiff counters that his retaliation claim is analogous to a claim for

malicious prosecution and, thus, did not accrue until the counterclaims against him were

dismissed on January 17, 2023. In support of this argument, Plaintiff cites the unreported case of

Haagensen v. Pa. State Police, 2009 WL 790355, at *4 (WD. Pa. Mar. 25, 2009), in which the

court determined that a First Amendment retaliation claim based on a criminal prosecution does

not accrue until dismissal of the retaliatory charges (citing Hartman v. Moore, 547 U.S. 250

(2006)). However, both Haagensen and Hartman involved the government’s initiation of

criminal proceedings against the plaintiff in retaliation for the plaintiffs exercise of his or her

free speech rights. Such is not the case here and, thus, Plaintiffs attempt to have his retaliation

claim treated as one for malicious prosecution is unfounded.

Alternatively, Plaintiff argues that the discovery rule should apply to toll the running of

the statute of limitations until some yet-to-be determined date because, when the counterclaims

were filed, he “neither knew nor had reason to know that those counterclaims were motivated by

retaliation.” (ECF No. 23, at p. 22). However, Plaintiff is not required to plead or establish

Defendants’ motivation to state a prima facie case of retaliation. He is merely required to allege:

(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person or

ordinary firmness from exercising his constitutional rights, and (3) a causal link between the

constitutionally protected conduct and the retaliatory action. Thomas v. Indep. Twp., 463 F.3d

285, 296 (3d Cir. 2006) (addressing retaliation for filing a lawsuit). Plaintiff knew, or should

have known, all of the facts necessary to state a prima facie claim of retaliation at the time the

counterclaims at issue were filed. See Brawner v. Educ. Mgmt. Corp., 513 Fed. Appx. 148, 151

(3d Cir. 2013) (“knowledge of every fact necessary to prevail on the claim is not required to ...

trigger the accrual period”); Danysh v. Eli Lilly and Co., 461 Fed. Appx. 75, 77 (3d Cir. 2012)

(limitations period is “not postponed until the injured party knows every fact necessary to bring

his action”).

Plaintiff argues further that the “continuing violation doctrine” should apply to extend the

running of the limitations period because Defendants “continued to maintain and defend their

counterclaims against [Plaintiff] until they were dismissed, which did not take place until

January 17, 2023.” (ECF No. 23, at p. 23). This argument is unavailing. “A continuing violation

is occasioned by continual unlawful acts, not continual ill effects from an original violation.”

Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir. 2001) (internal quotation marks omitted).?

Plaintiff's alleged injuries here all stem from Defendants’ original act of filing the counterclaims

at issue. Thus, the continuing violation doctrine does not apply.

For the foregoing reasons, therefore, the Court concludes that Plaintiffs First

Amendment retaliation claim is barred by the applicable statute of limitations. Count I of the

The court noted further that the continuing violation doctrine is typically applied in employment discrimination

cases, Cowell, 263 F.3d at 292 (citation omitted),

complaint will be dismissed, accordingly.

2. Count III — Abuse of Process

The statute of limitations for an abuse of process claim is triggered when “the process is

used for an improper purpose.” Evans v. Durham Life Ins. Co., 2001 WL 770803, at *2 (ELD. Pa.

Jul. 9, 2001), citing Williams v. City of Philadelphia, 1997 WL 598013, at *3 (E.D. Pa. Sept. 17,

1997); Harvey v. Pincus, 549 F.Supp. 332, 342 (E.D. Pa. 1982), aff'd 716 F.2d 890 (3d Cir.),

cert. denied, 464 U.S. 918 (1983). Here, Plaintiff alleges that Defendants “approved, funded,

and/or initiated the counterclaims” as a “tool” against him “to silence [his] speech.” (ECF No. 1,

at Jf 89-92). In addition, Plaintiff alleges that Defendants “knew that there was no legal basis to

sue [Plaintiff] for defamation when they filed the counterclaims.” (Id. at § 55).

Thus, it is apparent from Plaintiffs allegations that the process at issue was allegedly

“used for an improper purpose” at the time it was initiated by Defendants. This occurred upon

the filing of the counterclaims on November 29, 2017, which was more than five years before

this lawsuit was filed by Plaintiff. Accordingly, Plaintiffs Section 1983 abuse of process claim is

barred by the applicable two-year statute of limitations and will be dismissed.

B. Statute of Limitations — State Law Claims

As with Plaintiff's Section 1983 claims, the statute of limitations for the common law

claims of negligence and abuse of process in Pennsylvania is two years. 42 Pa. C.S. §§ 5524(1),

(2).

1. Count IV - Negligence

Plaintiff vaguely claims that Defendants owed him a duty “not to violate federal and/or

state statutes and other regulations in their dealings with him” and that their alleged conduct

breached those duties. (ECF No. 1, at {{] 98-99). This “alleged conduct” includes Plaintiff's

allegations that Defendants’ counterclaims were used “to retaliate against [Plaintiff] for

exercising his speech rights under the Constitution of the United States,” and that “the Defendant

Board Directors who supported and advanced the prosecution of the counterclaims through suit

and approval of expenditures attempted to silence [Plaintiff], violate his free speech rights, and

have a chilling effect on free speech” (Id. at J 51, 73). It is apparent from these and similar

allegations that Defendants’ “breach” of their duties primarily occurred at or around the initiation

of their counterclaims of defamation against Plaintiff on November 29, 2017, which is well

beyond the reach of the applicable two-year statute of limitations. Thus, Plaintiff's negligence

claim will be dismissed as untimely.

2. Count VI — Common Law Abuse of Process

In Pennsylvania, “‘[t]o establish a claim for abuse of process, it must be shown that the

defendant (1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for

which the process was not designed; and (3) harm has been caused to the plaintiff.”” Langman v.

Keystone Nazareth Bank &Trust Co., 502 Fed. Appx. 220, 224 (3d Cir. 2012), quoting Lemer v.

Lerner, 954 A.2d 1229, 1238 (Pa. Super. 2008) (citation and internal quotation marks omitted).

“<(T]he statute of limitations begins to run as soon as the right to institute and maintain a suit

arises.’” Langman, 502 Fed. Appx. at 224, quoting Pocono Int”] Raceway, Inc. v, Pocono

Produce, Inc., 468 A.2d 468, 471 (Pa. 1983) (citation omitted).

Here, it appears from Plaintiff's allegations that his common law abuse of process claim

accrued upon Defendants’ filing of their counterclaims in November 2017, as Plaintiff had

sufficient facts necessary to establish all three elements of the claim at such time. Accordingly,

Defendants’ motion to dismiss such claim as untimely will be granted.

CG Count II — Malicious Use of Process

The final claim left to consider is Plaintiff's malicious use of process claim under Section

1983.4 Defendants seek dismissal of this claim, arguing that Plaintiff has failed to state a claim

upon which relief may be granted and, alternatively, that the individual Defendants are entitled to

qualified immunity from such claim. Each of these arguments will be considered in turn.

1. Failure to State a Claim

Defendants’ argument that Plaintiff has failed to state a claim upon which relief may be

granted is based on their application of Pennsylvania’s statute, 42 Pa. C.S. § 8351, which defines

the elements of a common law tort claim of malicious use of process. Defendants apply these

elements in reliance upon the Third Circuit Court’s pronouncement in McArdle v. Tronetti, 961

F.2d 1083 (3d Cir. 1992) that “claims of malicious prosecution brought under Section 1983 must

include the elements of the common law tort as it has developed.” Id. at 1088, citing Rose v._

Bartle, 871 F.2d 331, 349 (3d Cir. 1989); Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988).

However, Plaintiff correctly notes that the Third Circuit has since recognized that the

Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994) “‘casts doubt’ on prior

circuit precedent adopting common law malicious prosecution as the test in a § 1983 action.”

(ECF No. 23, at p. 11, quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir.

2000) (citation omitted)). Yet, after making this correct observation, Plaintiff inexplicably

Malicious use of process is the term generally used when the underlying prosecution is civil in nature while

malicious prosecution is the term used when the underlying prosecution is criminal in nature. See Harvey v. Pincus,

549 F. Supp. 332, 340 (E.D. Pa. 1982), aff'd 716 F.2d 890 Gd Cir. 1983) (noting that claims for “malicious

proceeds to cite post-Albright precedent setting forth the test for stating a claim for retaliatory

prosecution, rather than malicious use of process.

Needless to say, the parties’ attempts to define the parameters of a cognizable Section

1983 claim of malicious use of process is murky at best. But to be fair, the courts have fared little

better in establishing a bright line test for stating a Section 1983 malicious use of process claim

after Albright.

Nonetheless, the Third Circuit has generally recognized that “malicious use [of process]

has to do with the wrongful initiation of civil process,” U.S. Express Liness Ltd. V. Higgins, 281

F.3d 383, 394 (3d Cir. 2002) (citation omitted), and that it “must be based on a provision of the

Bill of Rights providing ‘an explicit textual source of constitutional protection” rather than ““the

mere generalized notion of substantive due process.’” Merkle, 211 F.3d at 788, quoting Albright,

510 USS. at 272-73 (citations omitted). In addition, the Middle District Court has helpfully noted

that:

The reasoning of Albright with respect to § 1983 malicious prosecution

claims ... would appear to apply with equal force to § 1983 suits for

malicious use of civil process. That is, a plaintiff may not bring a civil

rights action based solely on the assertion that a government officer had

acted without probable cause and maliciously in commencing a

proceeding against the plaintiff. Plaintiff, instead, must allege that the

proceeding in question caused the interference with an explicit right, such

as the Fourth Amendment right to be free from an unreasonable seizure of

the person or of property.

Siegmond v. Fedor, 2004 WL 1490430, at * 5 n.5 (M.D. Pa. June 29, 2004) (internal citation

omitted).

ne

prosecution, ... when founded on civil prosecutions, are usually described as malicious use of civil process,”

quoting Publix Drug Co. v. Breyer, 32 A.2d 413, 415 (Pa. 1943)).

10

Here, Plaintiff has alleged that Defendants initiated the defamation counterclaims at issue

“for the purpose of preventing [Plaintiff] from exercising his constitutional speech rights” under

the First Amendment, and that he was, thus, “deprived of his liberty to fully engage in his

constitutional right to freedom of speech and was deterred from engaging in the same.” (ECF

No. 1, at 81, 84). Plaintiff has, therefore, alleged that Defendants’ use of process was

wrongfully initiated with the specific intent and effect of causing interference with his explicit

First Amendment right to freedom of speech. Such allegations are sufficient to maintain a claim

of malicious use of process at the pleading stage.

2. Qualified Immunity

Nonetheless, Defendants contend that Plaintiff's malicious use of process claim should be

dismissed against the individual Defendants because they are entitled to qualified immunity.

“Qualified immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft □□ al-

Kidd, 563 U.S. 731, 735 (2011) (internal citations omitted). The doctrine “gives government

officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the

plainly incompetent or those who knowingly violate the law.” Id., quoting Malley v Briggs, 475

U.S. 335, 341 (1986). Qualified immunity is “an entitlement not to stand trial or face the other

burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

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); see also

Newland v. Reehorst, 328 Fed. Appx. 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, 472 U.S. at 526. The Court emphasizes, however, that at the motion to

dismiss stage, “the defendant has the burden of pleading and proving qualified immunity.”

Mitros v. Cooke, 170 F.Supp.2d 505, 507 (E.D. Pa. 2001), citing Harlow v. Fitzgerald, 457 U.S.

800, 815 (1982); see also Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010) (“the burden of

establishing entitlement to qualified immunity is on [the defendant]”).

Here, the individual Defendants claim that they are entitled to qualified immunity

because the “filing of a counterclaim for defamation did not violate Plaintiff's clearly established

constitutional rights” (ECF No. 18, at p. 13). In particular, Defendants assert that “there is no

case law that discusses or defines whether a governmental entity is able to fund the pursuit of a

private defamation tort claim by an individual public official against a private citizen where there

is actual malice, and the counterclaim is in response to other claims brought against the entity by

the private citizen.” (Id. at p. 14). In response, Plaintiff disputes Defendants’ characterization of

both the question at issue and the nature of Plaintiff's claim against the individual Defendants.

(ECF No. 23, at 18). According to Plaintiff, “[t]his case is about whether the Defendants

counterclaimed against [Plaintiff] in retaliation for his questioning and suing them.” (Id.). The

resolution of this dispute involves an in-depth analysis of fact issues that require further

development beyond the pleading stage. Thus, Defendants have not met their burden of

establishing entitlement to qualified immunity at this early stage, because the immunity of the

individual Defendants is not established on the face of the complaint.

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff's Section 1983

malicious use of process claim will be denied, without prejudice to Defendants’ right to reassert

the individual Defendant’s entitlement to qualified immunity, if warranted, after further facts are

developed through discovery.

An appropriate Order follows.

13