RITTACCO v. ZELECHOWSKI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

JUSTIN RITTACCO,

)

)

Plaintiff,

)

) Civil Action No. 22-544

v.

) Judge Nora Barry Fischer

)

KRISTEN ZELECHOWSKI,

)

)

Defendant.

)

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Justin Rittacco (“Rittacco” or “Plaintiff”) sued Defendant Kristen Zelechowski,

(“Zelechowski” or “Defendant”), a state trooper, under 42 U.S.C. § 1983 for violating his Fourth

Amendment rights to be free from malicious prosecution, false arrest, and false imprisonment after

he was acquitted by a Fayette County jury of criminal homicide, simple assault, making terroristic

threats, and reckless endangerment. (Docket No. 1). Presently before the Court is a contested

motion for summary judgment filed by Defendant, which has been fully briefed. (Docket Nos.

41–46, 52–56, 58). Defendant invokes qualified immunity and derivative prosecutorial immunity

and argues, alternatively, that Plaintiff failed to present sufficient evidence to support the elements

of his claims. (Docket No. 42). Plaintiff naturally opposes. (Docket No. 55). Neither party

requested argument and the motion is now ripe for disposition.

After carefully considering the parties’ positions and for the following reasons, the Court

finds that Defendant is entitled to qualified immunity. Defendant’s motion for summary judgment

[41] is granted, and the Court will enter summary judgment for Zelechowski.

II. FACTUAL BACKGROUND1

The events of this lawsuit took place in May of 2020 in and around South Union Township

and Georges Township in Fayette County, Pennsylvania. Brandon Kissinger (“Kissinger”) was in

a relationship with Louise Sutton (“Sutton”). (Docket No. 45-1 at 24). But, on May 24, 2020,

Sutton spent the night at the home of her ex-boyfriend, Rittacco, who she had dated for seven

years. (Id.). Rittacco believed that he and Sutton were “back together.” (Id. at 47).

Kissinger tracked down Rittacco and Sutton on May 25 around 3:30 p.m. as Rittacco was

driving Sutton and his sister, Autumn, to work. (Id. at 13, 24, 47). Kissinger followed the vehicle

for a time before overcoming it and stopping his own car in the roadway such that Rittacco was

forced to bring his vehicle to rest. (Id. at 24; Docket No. 45-7 at 24–25). Kissinger exited his

vehicle and approached the passenger side door where Sutton was seated. (Docket No. 45-1 at 24,

47). Kissinger shouted at Sutton to get out of the car. (Id. at 24). Rittacco then pulled out his

handgun2 and, according to Sutton, told Kissinger that he would be killed if he tried opening the

door. (Id.). Kissinger backed away and returned to his vehicle. (Id. at 13, 74).

Kissinger was upset. (Docket Nos. 45-7 at 27; 45-8 at 51). After the roadway incident, he

texted Sutton several times. (Docket Nos 45-8 at 48, 51). Kissinger told Sutton that he wanted to

talk to her at the Long John Silver’s restaurant where she worked and threatened that he “got

something for [Rittacco].” (Docket No. 45-8 at 51).

1 The facts herein are compiled from the parties’ respective Concise Statements of Material Facts, their Replies

thereto, and their Appendixes. (Docket Nos. 43–46, 53–54, 56, 58). Unless otherwise specified, the facts of record

are uncontested. Any disputed evidence is viewed in the light most favorable to the nonmoving party. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.”).

2 Rittacco submits that there is a factual dispute whether he “brandished” his firearm or “pointed” it at

Kissinger. (Docket No. 53 ¶¶ 39, 57). For reasons discussed later, this fact is immaterial to Zelechowski’s probable

cause determination.

Sutton feared going to the restaurant. (Docket No. 45-1 at 24). She called her supervisors

to say that she would be late to work because she did not feel safe and told one manager, Sarah

Reid, to call the police if Kissinger showed up. (Id; Docket No. 45-1 at 23). Sutton and Rittacco

dropped off Autumn, picked up Rittacco’s friend, Philip Rafail, and returned to Rittacco’s

residence. (Docket No. 45-1 at 24).

Kissinger went to the Long John Silver’s. Video footage showed him arriving at 4:04 p.m.,

ordering a beverage, and leaving at 4:07 p.m. (Id. at 5). He returned ten minutes later with his

friend, Robert Lukehart (“Lukehart”), and entered the restaurant while Lukehart waited outside.

(Id.). At 4:22 p.m., Reid called 9-1-1 to report that Sutton was “afraid to come to work because

her ex-boyfriend was waiting with a gun”3 and that Kissinger was in the parking lot asking for

Sutton. (Id. at 4). Reid also texted Sutton to inform her that Kissinger and another man were in

the Long John Silver’s parking lot and that police had been contacted. (Id. at 23). A police officer

was dispatched to the Long John Silver’s. (Id. at 4).

Kissinger and Lukehart left the Long John Silver’s at 4:34 p.m. to get food at a nearby

McDonald’s. (Id. at 44). Three minutes later, Rittacco pulled his car into the Long John Silver’s

parking lot with Rafail and Sutton. (Id. at 3). Sutton left the car and walked into the restaurant.

(Id. at 5). Kissinger, from McDonald’s, saw Rittacco’s car enter the Long John Silver’s parking

lot. (Id. at 44). He retrieved Lukehart, who was waiting for his food, and drove back to the Long

John Silver’s. (Id.; Docket No. 45-7 at 17).

After dropping off Sutton, Rittacco backed his car out of the parking spot and turned to

exit onto the street. (Docket No. 45-7 at 57). But he was stopped by Kissinger, who had rapidly

entered the parking lot nearly hitting Rittacco’s vehicle with his own. (Id; Docket No. 45-1 at 46).

3 There is no evidence that Kissinger was armed and Rittacco admitted to Zelechowski that, to his knowledge,

Lukehart was unarmed. (Docket No. 45-7 at 45).

Rittacco pulled his car back into the parking spot. (Docket No. 45-7 at 57). Immediately, Lukehart

and Kissinger jumped out of the car and ran towards Rittacco, who remained in his vehicle. (Id.;

Docket No. 45-1 at 46). Lukehart arrived at the driver’s window and was struck by three rounds

from Rittacco’s nine-millimeter Sig Sauer pistol—once in the right forearm and twice in the chest.

(Docket Nos. 45-1 at 3, 7; 45-7). Rittacco then drove away. (Docket No. 45-1 at 3). The time

was 4:38 p.m. (Id. at 5).

A state trooper, who had been waiting at a nearby intersection when the shooting occurred,

arrived at the Long John Silver’s one minute later. (Id. at 5). An ambulance arrived at 4:49 p.m.

(Id. at 5, 16). Despite their efforts, Lukehart was pronounced dead at the scene at 6:15 p.m. (Id.

at 3, 6).

In the meantime, Rittacco contacted the police. At 4:40 p.m., minutes after leaving the

Long John Silver’s, he called 9-1-1 to report that he had shot a man three times for attempting to

enter his vehicle and then drove away to avoid a second man who was also coming after him. (Id.

at 4). Rittacco told the dispatcher that his actions were taken in self-defense. (Id.). He gave

police the address where he would be waiting for law enforcement. (Id. at 9).

When police arrived, Rittacco surrendered. (Id.). Officers placed him into custody,

advised him of his Miranda rights, and asked about the handgun used in the shooting. (Id.).

Rittacco directed them to a nearby trash can where his father had placed it, unloaded. (Id. at 9,

50–51). The officers took Rittacco back to the State Police barracks in Uniontown for questioning.

(Docket No. 45-10 at 10).

Zelechowski, a state trooper with nearly six years of experience at the time, was appointed

lead investigator of the incident. (Docket No. 45-8 at 7). She began her investigation by reporting

to the Long John Silver’s where she interviewed Kissinger and Sutton and reviewed video

surveillance. (Id. at 101). Zelechowski stayed on-scene until the forensics team began its work,

and then she returned to the barracks where she interviewed Kissinger, for a second time, and

Rittacco. (Id. at 101–03, 107). Rittacco told Zelechowski that he shot Lukehart “because I thought

they were going to kill me, shoot me, or something.” (Docket No. 45-1 at 47). Yet, he admitted

that he neither saw Lukehart with any weapons nor heard Lukehart say anything. (Id.).

Zelechowski testified that, later in the evening, she attended “a meeting with the district

attorney, [her] supervisor, and the troopers that knew the most information.” (Id. at 105).

According to Zelechowski, the district attorney made the decision to charge Rittacco with

Lukehart’s murder and charges related to the roadway incident and Zelechowski’s supervisor

concurred. (Id.). Then, under the oversight of the district attorney and her supervisor, Zelechowski

drafted the affidavits of probable cause. 4 (Id. at 107–08).

On May 25, Zelechowski charged Rittacco with criminal homicide under 18 Pa. C.S.A.

§ 2501(a) for shooting Lukehart. (Docket No. 45-6 at 2–5). This charge was filed in District Court

14-3-02 before Magisterial District Judge Jennifer Jeffries. (Id. at 2). In the affidavit of probable

cause supporting the charge of criminal homicide, Zelechowski provided the following description

of the incident:

Justin RITTACCO arrived at Long John Silvers . . . to drop his passenger off at

work. As he was attempting to leave, a black Acura sedan pulls up behind him. The

DEFENDANT then pulls back into the parking spot as the occupants of the Acura

exit the vehicle. The VICTIM, Robert LUKEHART, exited the passenger side of

the Acura and ran up to the driver side window of the DEFENDANT’s vehicle. The

DEFENDANT then fires approximately 3 rounds from a 9mm Sig Sauer pistol,

striking the VICTIM. The VICTIM falls to the ground and the DEFENDANT then

flees the scene.

4 Rittacco denies that Zelechowski worked with the district attorney to file charges but admits that Zelechowski

testified as much. (Docket No. 53 at ¶¶ 84–92).

(Id. at 5). Zelechowski also explained that Rittacco, in his interview with police, “related that he

shot the unknown male because he approached his vehicle in an aggressive manner and he felt his

life was threatened.” (Id.). Despite the purported involvement of the District Attorney,

Zelechowski did not check the box on the criminal complaint form indicating that an attorney for

the Commonwealth approved the charge and the complaint is not signed by the District Attorney.5

(Id. at 2).

Due to his brandishing a pistol during the earlier roadway incident with Kissinger,

Zelechowski also charged Rittacco with simple assault under 18 Pa. C.S.A § 2701(a)(3), recklessly

endangering another person under 18 Pa. C.S.A. § 2705, and making terroristic threats under 18

Pa. C.S.A § 2706(a)(1). (Id. at 34–38). These charges were filed in District Court 14-3-02 before

Magisterial District Judge Daniel Shimshock. (Id. at 34). In Zelechowski’s affidavit of probable

cause for these charges, she included the following explanation:

On 05/24/20, the VICTIM, Brandon KISSINGER related that around 1530 hours

he observed his girlfriend, Louise SUTTON in the passenger side of her ex-

boyfriend, Justin RITTACCO’s black Lincoln MKZ . . . He followed said vehicle

onto SR 857, he then passed said vehicle and stopped in the roadway . . . He then

exited the vehicle and walked to the passenger side in an attempt to confront his

girlfriend. SUTTON refused to put down the window to speak with KISSINGER.

The DEFENDANT, Justin RICCATTO [sic] then pointed a black pistol at

KISSINGER and told him to leave. KISSINGER then returned to his vehicle and

drove away.

(Id. at 38). Zelechowski disclosed Rittacco’s belief that he acted in self-defense, writing, “The

DEFENDANT . . . admitted that he pointed the pistol . . . at KISSINGER because he approached

the vehicle in an aggressive manner and he felt his life and SUTTON’s were being threatened.”

(Id.). Once again, Zelechowski neither checked the box for attorney approval nor secured the

signature of an attorney. (Id. at 34).

5 Zelechowski testified at her deposition that, in Fayette County, “they don’t . . . check the box and sign [police

criminal complaints] like some other D.A.s do.” (Docket No. 45-8 at 109).

After the charges were accepted by the magistrate judges, arrest warrants were issued, and

Rittacco was then transferred to the Fayette County Jail where he remained in custody pending the

disposition of the charges. Magistrate Judge Shimshock held a joint preliminary hearing regarding

both cases on June 29. (Docket No. 45-7 at 2). Assistant District Attorney Robert Harper appeared

for the Commonwealth, and Attorney William Difenderfer appeared for Rittacco. (Id.). Kissinger

and Zelechowski were subjected to direct examination by Assistant District Attorney Harper and

cross examination by Attorney Difenderfer. (Id. at 3). Attorney Difenderfer admitted it was

“going to be up to the jury” whether Rittacco was “justified or not” in shooting Lukehart and

acknowledged that “justification is not a defense at this level,” but asked the court “to dismiss the

charges of murder of the first or third degree” and hold a manslaughter charge “for a jury.” (Id. at

51–52). The court found that the Commonwealth had met its burden of making out a prima facie

criminal case against Rittacco, and all of the charges were held over for trial in the Fayette County

Court of Common Pleas. (Docket No. 45-7 at 53–54).

On September 30, Rittacco appeared before the Court of Common Pleas where bail was

set at $50,000. (Docket Nos. 43 at ¶ 109; 45-2 at 10). Rittacco posted bail that same day and was

released subject to conditions, including house arrest with electronic monitoring. (Docket Nos. 43

at ¶ 110; 45-2 at 10). His criminal trial began on December 20, 2021, and, the next day, a jury

found Rittacco not guilty on all counts. (Docket Nos. 43 at ¶¶ 111–12; 45-2 at 13). Rittacco spent

129 days in Fayette County Jail and another 450 days on house arrest awaiting the disposition of

the charges. (Docket No. 54 at 60).

III. PROCEDURAL BACKGROUND

On April 11, 2022, Rittacco sued Zelechowski and Troopers Crowley and Solis under 42

U.S.C. § 1983 for malicious prosecution, false arrest, false imprisonment, and unlawful taking.

(Docket No. 1 at 10–18). The Defendants collectively answered on August 29, 2022. (Docket

No. 10).

After discovery, the Defendants moved for summary judgment on January 26, 2024.6

(Docket No. 41). The parties proceeded to brief and argue their respective positions for and against

summary judgment. (Docket Nos. 42–45; 52–55; 58). In Rittacco’s response to the Defendants’

motion for summary judgment, he voluntarily withdrew Count V of his complaint for unlawful

taking and his claims against Crowley and Solis. (Docket No. 52 at 3). Accordingly, the Court

dismissed Count V and the claims against Crowley and Solis, with prejudice, and dismissed

Crowley and Solis from this action. (Docket Nos. 47, 57). All that remains for the Court’s

consideration are Rittacco’s claims against Zelechowski for malicious prosecution, false arrest,

and false imprisonment. Having been fully briefed and argued by both parties, the Motion for

Summary Judgment is ripe for disposition.

IV. LEGAL STANDARD

Summary judgment is appropriate when the moving party establishes “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). “A fact is ‘material’ under Rule 56 if its existence or nonexistence might

impact the outcome of the suit under the applicable substantive law.” Baloga v. Pittston Area Sch.

Dist., 927 F.3d 742, 752 (3d Cir. 2019) (citations omitted). Further, “[a] dispute is ‘genuine’ if ‘a

reasonable jury could return a verdict for the nonmoving party.’” Clews v. Cnty. of Schuylkill, 12

F.4th 353, 358 (3d Cir. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no genuine issue for trial.” N.A.A.C.P. v. N. Hudson Reg’l Fire & Rescue,

6 The Court notes that the parties participated in early neutral evaluation with David B. White, Esq, but the

case was not resolved at that time. (Docket No. 24).

665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).

A party seeking summary judgment “must show that if the evidentiary material of record

were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving

party to carry its burden of proof.” Conboy v. U.S. Small Bus. Admin., 992 F.3d 153, 160 (3d Cir.

2021) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the moving party meets

its initial burden, the burden then shifts to the nonmovant who must set forth specific facts showing

a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported

assertions or denials of its pleadings.” Conboy, 992 F.3d at 160; see also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In this regard, the non-movant must come

forward with more than “some metaphysical doubt as to the material facts.” Conboy, 992 F.3d at

160; see also Matsushita, 475 U.S. at 586-87.

Nonetheless, a well-supported motion for summary judgment will not be defeated where

the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New

Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of W.

Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits,

deposition testimony, admissions, and answers to interrogatories to demonstrate the existence of a

genuine issue. Guidotti v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 764, 773 (3d Cir. 2013)

(citing Celotex Corp., 477 U.S. at 324).

V. DISCUSSION

Zelechowski asserts that she is entitled to qualified immunity because she did not act

unreasonably or knowingly violate Rittacco’s rights. (Docket No. 42 at 6–8). Alternatively,

Zelechowski claims that she has derivative prosecutorial immunity because she was acting at the

direction of the district attorney, (id. at 3–6), and that Rittacco cannot establish the elements of his

malicious prosecution, false arrest, and false imprisonment claims because she had probable cause

to charge him with these offenses, (id. at 8–26). Rittacco counters that Zelechowski failed to

timely raise the defense of derivative prosecutorial immunity in her Answer and that there are

genuine disputes of material fact which preclude summary judgment in her favor. (Docket No. 52

at 21–23).

After reviewing the parties’ arguments in light of the prevailing standards, the Court holds

that Zelechowski is entitled to qualified immunity because Rittacco has not shown that he suffered

a deprivation of any constitutional right and has otherwise failed to demonstrate that Zelechowski

violated his clearly established rights. Given such ruling, the Court need not resolve the parties’

disputes as to the timeliness of Zelechowski’s assertion of derivative prosecutorial immunity or

the merits of same.

A. Qualified Immunity Standard

“Police officers, embodying the authority of the state, are liable under § 1983 when they

violate someone's constitutional rights, unless they are protected by qualified immunity.” Peroza-

Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021) (internal quotation marks and citations omitted).

Included among those rights are the constitutional rights of a person to be free from malicious

prosecution, false arrest, and false imprisonment by state authorities under the Fourth Amendment.

See Thompson v. Clark, 142 S. Ct. 1332, 1336–1338 (2022); Williams v. City of N.Y., 967 F.3d

252, 263 (3d Cir. 2020); Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). “The

doctrine of qualified immunity shields officers from civil liability so long as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” City of Tahlequah v. Bond, 142 S. Ct. 9, 11–12 (2021) (internal quotation marks

and citation omitted). Qualified immunity protects “all but the plainly incompetent or those who

knowingly violate the law.” Id.

A police officer is shielded from suit by qualified immunity unless, (1) “the officer's

conduct violated a constitutional right” and (2) “the right was clearly established, such that it would

[have been] clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Id. “Courts may begin their inquiry with either prong.” Id. At the summary judgment

stage, “the burden is on the officer to establish an entitlement to qualified immunity.” Peroza-

Benitez, 994 F.3d at 165.

For the first prong of the qualified immunity analysis, in the malicious prosecution context,

a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal

proceeding ended without a conviction; (3) the proceeding was initiated without probable cause;

(4) the defendant acted maliciously 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. Est. of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003);

Thompson v. Clark, 142 S. Ct. at 1341 (2022) (“[A] Fourth Amendment claim under § 1983 for

malicious prosecution does not require the plaintiff to show that the criminal prosecution ended

with some affirmative indication of innocence. A plaintiff need only show that the criminal

prosecution ended without a conviction.”). In the false arrest and false imprisonment context, “a

plaintiff must establish: (1) that there was an arrest [or imprisonment]; and (2) that the [detention]

was made without probable cause.” Williams, 967 F.3d at 263 (quoting James v. City of Wilkes-

Barre, 700 F.3d 675, 6800 (3d Cir. 2012)); see Olender v. Twp. of Bensalem, 32 F. Supp. 2d 775,

791 (E.D. Pa. 1999) (“false arrest and false imprisonment are essentially the same claim”).

As to the second prong of the qualified immunity analysis, the phrase “clearly established”

means that “at the time of the officer's conduct, the law was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.” James v. N.J. State Police, 957 F.3d

165, 169 (3d Cir. 2020) (quotation marks and citation omitted). “The inquiry is an 'objective

(albeit fact-specific) question,' under which '[an officer]'s subjective beliefs . . . are irrelevant.’”

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). The Court must “consider[ ] only

the facts that were knowable to the defendant officer.” Id. (quoting White v. Pauly, 580 U.S. 73,

76–77 (2017)). The Court only analyzes “clearly established rights as of” the date of the arrest

and initiation of criminal charges; here, May 25, 2020. See id. at 170.

The Supreme Court has “repeatedly told courts not to define clearly established law at too

high a level of generality.” Bond, 142 S. Ct. at 11. “It is not enough that a rule be suggested by

then-existing precedent; the 'rule's contours must be so well defined that it is clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Id. (quotation marks and

citation omitted). “Such specificity is especially important in the Fourth Amendment context

where it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will

apply to the factual situation the officer confronts.” Id. at 11–12. Put another way, “settled law,”

D.C. v. Wesby, 583 U.S. 48, 63 (2018), must “squarely govern the specific facts at issue,” Kisela

v. Hughes, 584 U.S. 100, 104 (2018).

After defining the right at issue at the appropriate level of generality, the Court must look

to “analogous Supreme Court precedent, as well as binding opinions from” the Third Circuit to

determine whether the right is “clearly established.” Peroza-Benitez, 994 F.3d at 165. The Court

must also “consider whether there is a robust consensus of cases of persuasive authority in the

Courts of Appeals,” and the district courts. Id. at 165-66 (internal quotation marks and citation

omitted). In this regard, although the Supreme Court “does not require a case directly on point for

a right to be clearly established, existing precedent must have placed the statutory or constitutional

question beyond debate.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7-8 (2021) (citation omitted).

“In rare cases,” a plaintiff may show that a right is clearly established if the “violation [is]

obvious.” James, 957 F.3d at 169 (quotation marks and citation omitted).

B. Whether Zelechowski Violated Rittacco’s Constitutional Rights

Beginning at the first prong of the qualified immunity analysis, the Court “must decide

whether the facts that a plaintiff has shown make out a violation of a constitutional right.” ADA

Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024) (citation, quotation marks, and ellipses

omitted). To state it differently, the Court must decide whether Rittacco has established claims of

malicious prosecution, false arrest, or false imprisonment.

The gravamen of all three constitutional violations is a lack of probable cause. See Sheedy

v. City of Phila., 184 F. App’x 282, 284 (3d Cir. 2006) (“probable cause defeats a claim for

malicious prosecution and for false imprisonment or arrest”). “Probable cause exists when the

‘facts and circumstances within the officer’s knowledge’ would cause ‘a prudent person’ to believe

‘that the suspect has committed . . . an offense.’ ” Brackbill v. Ruff, No. 22-162, 2023 WL 5447271,

at *2 (3d Cir. 2023) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). It “requires more

than mere suspicion; however, it does not require that the officer have evidence sufficient to prove

guilty beyond a reasonable doubt.” Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017)

(citation omitted). “ ‘[K]nowledge of a credible report from a credible eyewitness’ is ‘sufficient to

establish probable cause.’ ” Greenberg v. Chester Downs & Marina, LLC, 694 F. App’x 877, 879

(3d Cir. 2017) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 790 & n.8 (3d Cir. 2000))

(brackets omitted). “The probable cause inquiry looks to the totality of the circumstances; the

standard does not require that officers correctly resolve conflicting evidence or that their

determinations of credibility, were, in retrospect, accurate.” Wright v. City of Phila., 409 F.3d

595, 603 (3d Cir. 2005).

“[T]he common law presumption raised by a magistrate’s prior finding that probable cause

exists does not apply to section 1983 actions.” Merkle, 211 F.3d at 789. But “a prior probable

cause determination at a preliminary hearing may be very strong evidence in favor of a finding of

probable cause.” Lee v. Fiscus, No. 1:22-cv-365, 2024 WL 759083, at *11 (W.D. Pa. Jan. 18,

2024) (citing Zimmerman v. Corbett, No. 13-2788, 2015 WL 539783, at *5 (M.D. Pa. Feb. 10,

2015)). And a “Pennsylvania court’s decision to schedule [a criminal defendant] for trial is

evidence of an independent, contemporaneous judicial determination that there was sufficient

probable cause.” Wheeler v. Wheeler, 639 F. App’x 147, 151 (3d Cir. 2016).

Having carefully considered the parties’ positions in light of the governing standards and

applicable law, the Court finds that Zelechowski is entitled to qualified immunity at prong one

because she did not violate Rittacco’s Fourth Amendment rights when she had probable cause to

arrest, imprison, and charge him with criminal homicide, simple assault, making terroristic threats,

and reckless endangerment.

1. Criminal Homicide

The Court must first independently consider whether Zelechowski had probable cause to

arrest and prosecute Rittacco for criminal homicide. “A person is guilty of criminal homicide if

he intentionally, knowingly, recklessly or negligently causes the death of another being.” 18 Pa.

C.S.A. § 2501(a). “The use of a deadly weapon on a vital part of the human body is sufficient to

establish the specific intent to kill.” Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005)

(citation omitted). The chest is considered a vital part of the human body. Commonwealth v.

Hanible, 836 A.2d 36, 40 (Pa. 2003).

Zelechowski had probable cause to arrest and charge Rittacco with criminal homicide

because it was reasonable for her to believe that Rittacco shot Lukehart in the chest with a deadly

weapon and that Lukehart died. First, Zelechowski had probable cause to believe that Rittacco

shot Lukehart. Rittacco called 9-1-1 to report that he shot a man three times, (Docket No. 45-1 at

4), and later told Zelechowski the same, (id. at 47–48); Kissinger told Zelechowski at the Long

John Silver’s that Lukehart “walked to RITTACCO’s vehicle and was shot as soon as he

approached the driver side door,” (id. at 13); and video surveillance viewed by Zelechowski

showed that “LUKEHART exits the passenger side . . . runs up to the driver side of RITTACCO’s

vehicle and then instantly falls to the ground,” (id. at 5). Second, Zelechowski had probable cause

to believe that Rittacco shot Lukehart in the chest. The first officer to respond to the accident

reported that Lukehart had “two gunshot wounds to the upper chest.” (Id. at 7). And, finally,

Lukehart was pronounced dead at 6:15 p.m. (Id. at 6). Zelechowski’s affidavit of probable cause

summarized these key facts.7 (Docket No. 45-6 at 5).

Rittacco counters this finding of probable cause by arguing that Zelechowski failed to

provide enough information in her affidavit regarding his claim of self-defense. To that end,

Zelechowski noted in the affidavit that Rittacco “related that he shot the unknown male because

he approached his vehicle in an aggressive manner and felt his life was threatened.” (Docket No.

7 “On 05/24/20 at approximately 1637 hours, the DEFENDANT, Justin RITTACCO arrived at Long John

Long John [sic] Silvers located at 548 Morgantown Rd, South Union Township, Fayette County, PA to drop his

passenger off at work. As he was attempting to leave, a black Acura sedan pulls up behind him. The DEFENDANT

then pulls back into the parking spot as the occupants of the Acura exit the vehicle. The VICTIM, Robert LUKEHART

exited the passenger side of the Acura and ran up to the driver side window of the DEFENDANT’s vehicle. The

DEFENDANT then fires approximately 3 rounds from a 9mm Sig Sauer pistol, striking the VICTIM. The VICTIM

falls to the ground and the DEFENDANT then flees the scene . . . The VICTIM, Robert LUKEHART was pronounced

dead at the scene at approximately 1815 hours. He was observed to have two bullet holes to the chest and one to the

right forearm.” (Docket No. 45-6 at 5).

45-6 at 5). Rittacco asserts that Zelechowski should have also included information about the

hostile roadway encounter between Rittacco and Kissinger, Kissinger’s repeated attempts to

contact Sutton to include his messages threatening Rittacco, Kissinger’s “wild and reckless”

behavior in the Long John Silver’s parking lot, and Lukehart and Kissinger’s attempt to rush and

attack Rittacco with knowledge that the latter was armed. (Docket No. 52 at 15–16).

First, the Court notes that a Pennsylvania magistrate judge heard testimony about this

“omitted” information at Rittacco’s preliminary hearing and made “an independent,

contemporaneous judicial determination that there was sufficient probable cause.” See Wheeler,

639 F. App’x at 151. At the hearing, the judge heard testimony from Kissinger and Zelechowski

about the roadway incident and the shooting and viewed Long John Silver’s surveillance video.

(Docket No. 46-7 at 3, 42). Rittacco’s attorney had the opportunity to cross-examine both

witnesses and asserted that it would be for a jury to decide whether Rittacco was “justified” in

shooting Lukehart. (Id. at 3, 51). The judge learned about Kissinger’s erratic and reckless driving,

the threatening texts he sent to Sutton, his waiting at Long John Silver’s to confront Sutton and

Rittacco, and his and Lukehart’s aggressive behavior in the Long John Silver’s parking lot. (Id. at

22–24, 27–28, 30–36). In the end, the judge concluded that the Commonwealth had made out its

prima facie case and formally arraigned Rittacco. (Id. at 53–54).

Second, the Court finds that Rittacco’s “exculpatory defense, no matter how compelling

could not defeat th[e] already-present probable cause.” See Davis v. Malitzki, 451 F. App’x 228,

234 (3d Cir. 2011) (citing Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)).

Accord Tarr v. City of Pittsburgh, 800 F. App’x 131, 135 (3d Cir. 2020) (“an affirmative defense

to an alleged crime does not necessarily vitiate probable cause” (quoting Paez v. Mulvey, 915 F.3d

1276, 1286 (11th Cir. 2019)). Even more, Police officers are generally not required to consider an

affirmative defense that is not “a clear cut matter in criminal prosecutions,” Sands v. McCormick,

502 F.3d 263, 269 (3d Cir. 2007), or “specifically included in the statute setting forth the elements

of the crime,” Holman v. City of New York, 564 F.3d 225, 230 (3d Cir. 2009). But see Mazuka v.

Rice Twp. Police Dep’t, 655 F. App’x 892, 899 (3d Cir. 2016) (Smith, J., concurring) (“we have

never held that an affirmative defense is a relevant consideration in the probable cause analysis”).

Here, self-defense is not included in Pennsylvania’s criminal homicide statute and it is not a “clear

cut matter” fit for resolution by a charging officer. See, e.g., Gorman v. Bail, 947 F. Supp. 3d 509,

523 (E.D. Pa. 2013) (“self-defense is inherently an issue that must be decided at trial”);

Commonwealth v. Green, 273 A.3d 1080, 1084 (Pa. Super. Ct. 2022) (“Self-defense is a complete

defense to a homicide charge if 1) the defendant reasonably believed that he was in imminent

danger of death or serious bodily injury and that it was necessary to use deadly force to prevent

such harm; 2) the defendant did not provoke the threat that resulted in the slaying; and 3) the

defendant did not violate a duty to retreat.”) (citations and brackets omitted).

Overall, this Court’s evaluation of the record in light of the prevailing standards leads it to

conclude that Zelechowski had probable cause to arrest and prosecute Rittacco for criminal

homicide. So, Rittacco has failed to show that he suffered a deprivation of his constitutional rights

with respect to his prosecution, arrest, and imprisonment for criminal homicide.

2. Simple Assault, Terroristic Threats, and Recklessly Endangering Another Person

Next the Court must decide whether Zelechowski had probable cause to charge Rittacco

with the three crimes attendant to the roadway incident—simple assault, making terroristic threats,

and recklessly endangering another person. In Pennsylvania, “a person is guilty of assault if he

attempts by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.

C.S.A. § 2701(a)(3). “A person commits the crime of terroristic threats if [he] communicates,

either directly or indirectly, a threat to commit any crime of violence with intent to terrorize

another.” Id. § 2706(a)(1). And a person recklessly endangers another “if he recklessly engages

in conduct which places or may place another person in danger of death or serious bodily harm.”

Id. § 2705. Probable cause can be found to support charges of simple assault and reckless

endangerment when a person points a loaded or unloaded firearm at another. See, e.g,

Commonwealth v. Bruder, No. 1616 MDA 2021, 2022 WL 15065088, at *4 (Pa. Super. Ct. Oct.

27, 2022) (“The law is clear that pointing an unloaded firearm at another person is sufficient . . .

to support a conviction for simple assault.”); Commonwealth v. Rivera, 597 A.2d 690, 695 (Pa.

Super. Ct. 1991) (“knowingly pointing a loaded weapon at another person may be sufficient to

convict a defendant for reckless endangerment”). And probable cause can be found to support a

charge of terroristic threats when a person expresses an intent to use the weapon. See, e.g.,

Commonwealth v. Jones, No. 638 MDA 2023, 2023 WL 8056562, at *4 (Pa. Super. Ct. Nov. 20,

2023) (“evidence that a [criminal defendant] brandished a weapon at [a person] while using

language indicating that he was willing to use it is sufficient to prove” the crime of terroristic

threats).

Zelechowski had probable cause to arrest and charge Rittacco with simple assault, making

terroristic threats, and reckless endangerment because it was reasonable for her to believe that

Rittacco pointed a firearm at Kissinger and demonstrated an intent to use it. Zelechowski wrote

in the affidavit of probable cause that Rittacco “pointed a black pistol at KISSINGER and told him

to leave.” (Docket No. 45-6 at 38). This statement was supported by interviews with Kissinger,

Sutton, and Rittacco, himself. Kissinger told Zelechowski that Rittacco remained silent and

pointed a pistol at him when he approached the vehicle. (Docket No. 45-1 at 43). Sutton told

Zelechowski, “[w]hen KISSINGER attempted to open the passenger door, RITTACCO pulled his

gun from his holster and pointed it at KISSINGER [and] stated, ‘if you try to open the car door, I

will kill you.” (Docket No. 45-1 at 24). Similarly, Rittacco related to Zelechowski, that, “[w]hen

KISSINGER attempted to open the passenger door, [he] pulled his firearm and pointed it at

[Kissinger]” and “told KISSINGER to ‘get the [expletive] away from the car.’ ” (Docket No. 45-

1 at 48).

Rittacco, at this stage, argues that it is an issue of material fact whether he pointed his

firearm at Kissinger. He submits that he “brandished” but did not “point” his firearm at Kissinger.

(Docket No. 53 ¶¶ 39, 57). Whether Rittacco actually pointed his firearm at Kissinger is not

material to the Court’s probable cause inquiry. See Wright, 409 F.3d at 602 (“the constitutional

validity of the arrest does not depend on whether the suspect actually committed the crime”)

(citation omitted). Instead, the material facts are those that Zelechowski had before her when

making the decision to arrest and initiate charges against Rittacco. See Brackbill, 2023 WL

5447271, at *2 (“Probable cause exists when the ‘facts and circumstances within the officer’s

knowledge’ would cause ‘a prudent person’ to believe ‘that the suspect has committed . . . an

offense.’ ”) (citation omitted). And, on May 24, 2020, the accused, the victim, and an eyewitness

all told Zelechowski that Rittacco had pointed a firearm at Kissinger.

Rittacco also asserts that Zelechowski unlawfully omitted exculpatory evidence that would

support a finding that he acted in self-defense. (Docket No. 52 at 7–13). As before, the Court

finds this argument unavailing. First, Zelechowski gave due credence to Rittacco’s claim of self-

defense when she wrote that Rittacco pointed his firearm at Kissinger because the latter

“approached the vehicle in an aggressive manner and [Rittacco] felt his life and SUTTON’s were

being threatened.” (Docket No. 45-6 at 38). Second, Rittacco’s purported “exculpatory defense,

no matter how compelling, could not defeat th[e] already-present probable cause.” See Davis 451

F. App’x at 234. And third, a magistrate found that the Commonwealth had established a prima

facie case for the crimes of simple assault, making terroristic threats, and reckless endangerment

after hearing testimony from Kissinger and Zelechowski. (Docket No. 45-7 at 54–55). See

Wheeler, 639 F. App’x at 151.8

This Court’s evaluation of the record in light of the prevailing standards leads it to conclude

that Zelechowski had probable cause to arrest and prosecute Rittacco with simple assault, making

terrorist threats, and reckless endangerment. So, Rittacco has failed to show that he suffered a

deprivation of his constitutional right with respect to his prosecution, arrest, and imprisonment for

these offenses.

C. Whether Zelechowski Violated a Clearly Established Right

Continuing with prong two of the qualified immunity analysis, the Court “must determine

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

misconduct.” ADA Anglemeyer, 92 F.4th at 188. After careful consideration, the Court finds that

Zelechowski is also entitled to qualified immunity at prong two because Rittacco has not

demonstrated that Zelechowski violated a clearly established right.

1. Defining the Constitutional Right at Issue

At the first step of prong two of the qualified immunity analysis, the Court must define the

“right allegedly violated with a ‘high degree of specificity.’ ” ADA Anglemeyer, 92 F.4th at 191

(quoting Wesby, 583 U.S. at 63). Rittacco submits that Zelechowski violated his right to be free

8 Though the Court found that Zelechowski had probable cause to charge Rittacco with all three offenses, she

need only show probable cause for one to defeat Rittacco’s claims of malicious prosecution, false arrest, and false

imprisonment. “[E]stablishing probable cause on one charge of multiple charges will defeat a claim of false arrest.”

See Harper v. City of Phila. No. 21-2262, 2022 WL 17337574, at * (3d Cir. Nov. 30, 2022) (citing Barna v. City of

Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) and Startzell v. City of Phila., 533 F.3d 183, 204 n.14 (3d Cir. 2008)).

And, “where the circumstances leading to the arrest and prosecution were totally intertwined,” Johnson v. Knorr, 477

F.3d 75, 82 n.9 (3d Cir. 2007), probable cause for one criminal charge “disposes of [a plaintiff’s] malicious prosecution

claims with respect to all of the charges brought against [him],” Wright v. City of Phila., 409 F.3d 595, 604 (3d Cir.

2005).

from an officer’s “failure to include exculpatory evidence in the affidavit of probable cause used

to arrest [him].” (Docket No. 52 at 24).

Rittacco’s definition is too broad. Rittacco is crafting his purported right to fit within the

confine of those cases which have affirmed “the right to be free from an arrest based on an officer’s

deliberate or reckless omission of facts to a judge assessing probable cause, when those facts would

be sufficient to vitiate probable cause.” Tarr v. City of Pittsburgh, No. 2:16-cv-1424, 2019 WL

967802, at *12 (W.D. Pa. Feb. 28, 2019) (quoting Richter v. Pa. State Police, No. 15-775, 2018

WL 2984966, at *22 (W.D. Pa. June 14, 2018)), aff’d, 800 F. App’x 131 (3d Cir. 2020). In Richter,

a case cited by Rittacco, the court found that officers omitted exculpatory information showing

that, in a single car accident, the decedent, not Richter, was driving. 2018 WL 2984966, at *7.

And in Wilson v. Russo, a second case cited by Rittacco in support of his purported right, the Third

Circuit found that a detective omitted exculpatory information undermining the identification of

Wilson as the robber. 212 F.3d 781, 791 (3d Cir. 2000) (explaining that the detective “should have

mentioned [that]: (1) the robber was originally identified as someone 6’3” to 6’5”, while Wilson

is four to seven inches shorter; (2) one of the two victim-witness with ample opportunity to view

the robber failed to identify Wilson when shown a photo array; and (3) [a witness] saw Wilson out

in the shopping center when he was supposedly in the flower shop”).

Here, Rittacco does not assert that Zelechowski omitted exculpatory information which

would have vitiated a finding of probable cause. Instead, he claims that Zelechowski omitted

evidence which would apply to a finding that he acted in self-defense: “statements about Mr.

Kissinger’s aggressive, hostile and outrageous behavior toward the Plaintiff that same day, which

caused the plaintiff to fear for his life; witness statements that the Plaintiff acted in self-defense;

and that Mr. Lukehart aggressively attempted to open the Plaintiff’s driver’s side door.” (Docket

No. 1 ¶ 64). So, the Court finds that the purported right is more accurately defined as follows: the

right to be free from detention and prosecution based on an officer’s deliberate or reckless omission

of facts to a judge assessing probable cause when those facts give rise to the possible affirmative

defense of self-defense. See, e.g., Tarr, 2019 WL 967802, at *12.

2. Whether the Law was Clearly Established

Based on the Court’s definition of the right at issue, it must determine whether “clearly

established” law, as of May 25, 2020, held that Zelechowski’s affidavit of probable cause

amounted to “an unreasonable seizure pursuant to legal process.” See Thompson, 142 S. Ct. at

1337; Dempsey v. Bucknell Univ., 834 F.3d 457, 469 (3d Cir. 2016). Put another way, the Court

must determine whether clearly established law showed that Zelechowski unreasonably omitted

exculpatory evidence of self-defense from her affidavit. See Dempsey, 834 F.3d at 469.

For one thing, Rittacco has identified no precedent factually analogous to the instant matter

that would show that Zelechowski violated a clearly established right on May 25, 2020. Even

more, he has not shown that Fourth Amendment precedent, whether from the Supreme Court,

Third Circuit, or elsewhere would put the question “beyond debate.” As discussed, the two cases

he offers—Wilson v. Russo and Richter v. Pa. State Police—support a finding that it is unlawful

to omit exculpatory evidence when those facts could vitiate probable cause, an inapplicable rule

here.

The Court, after careful independent review, has found no caselaw remotely analogous that

would establish the existence of Rittacco's right, let alone support a finding that the right was

“clearly established.” The Third Circuit has yet to decide whether officers must include evidence

of self-defense in an affidavit, Tarr, 2019 WL 967802, at *13, but it has explained that “police

officers generally have no responsibility to determine the applicability of certain affirmative

defenses,” Wagner v. N. Berks Reg’l Police Dep’t, 816 F. App’x 679, 684 (3d Cir. 2020) (citing

Sands v. McCormick, 502 F.3d 263, 269 (3d Cir. 2007)), and “no obligation to be aware of facts

supporting complex affirmative defenses . . . let alone an obligation to disclose these facts,” id.

As in the Third Circuit, none of the other Courts of Appeals have addressed whether a law

enforcement officer must include facts pertaining to the affirmative defense of self-defense in an

affidavit of probable cause. Even after expanding the aperture to consider whether evidence of an

affirmative defense is relevant at all to a probable cause analysis, the Court has not found a

consensus among the other Circuits. See, e.g., Loftin v. City of Prentiss, 33 F.4th 774, 780 n.2 (5th

Cir. 2022) (“This court has repeatedly refused to opine on whether facts supporting the existence

of an affirmative defense are relevant to the determination of probable cause.”) (citations and

quotation marks omitted); Paez v. Mulvey, 915 F.3d 1276, 1286 (11th Cir. 2019) (“an affirmative

defense to an alleged crime does not necessarily vitiate probable cause”) (citation omitted);

Dollard v. Whisenand, 946 F.3d 342, 355 (7th Cir. 2019) (“an officer may not ignore conclusively

established evidence of the existence of an affirmative defense but the Fourth Amendment imposes

no duty to investigate whether a defense is valid”) (citations, quotation marks, and brackets

omitted); Assenberg v. Whitman Cnty., 730 F. App’x 429, 433 (9th Cir. 2018) (“an affirmative

defense does not defeat probable cause.”); Sanchez v. Labate, 564 F. App’x 371, 373-74 (10th

Cir. 2014) (finding not “a single Supreme Court or Tenth Circuit decision holding that law-

enforcement officers must resolve a claim of self-defense before arresting someone who has

admitted killing another person”); Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir. 2002) (“Even

if the circumstances suggest that a suspect may have an affirmative defense, if a reasonable officer

would not ‘conclusively know’ that the suspect is protected by the defense, then he is free to arrest

the suspect provided there is probable cause to do so.”)

There is a consensus among district courts within the Third Circuit supporting the opposite

conclusion—that officers are not required to include facts in support of a self-defense argument in

their affidavit of probable cause. See, e.g, Miller v. Snell, No. 18-5178, 2020 WL 7769793, at *9

(E.D. Pa. Dec. 30, 2020) (“Whether the shooting was in self-defense is certainly an issue, however,

it is not necessarily the Magistrate's duty to make an arguable self-defense determination when

issuing an arrest warrant.”); Berrios v. City of Phila., 96 F. Supp. 3d 523, 532–33 (E.D. Pa. 2015)

(explaining that self-defense “would need to be a part of the statutory language in the elements of

the crime at issue in order to be considered” in the determination of probable cause); Gorman, 947

F. Supp. 2d at 523 (“[T]he Court concludes that, as a matter of law, self-defense is not the type of

affirmative defense that officers must consider or disclose in affidavits of probable cause.”). In

reaching its decision in Gorman, the district court explained, in words applicable to the matter at

hand, “the Court notes that claims of self-defense to an assault necessarily admit involvement in a

violent altercation. Thus, self-defense is inherently an issue that must be decided at trial, not by a

police officer or a judge at a hearing to issue an arrest warrant.” Gorman, 947 F. Supp. 2d at 523.

Because Rittacco has not established the existence of any “clearly established” rights,

“such that it would [have been clear] to a reasonable officer that [her] conduct was unlawful in the

situation [she] confronted,” Zelechowski is entitled to qualified immunity on Rittacco’s claims of

malicious prosecution, false arrest, and false imprisonment. See Bond, 142 S. Ct. at 11–12.

D. Derivative Prosecutorial Immunity

Zelechowski asserts for the first time in her motion for summary judgment that she is

entitled to derivative prosecutorial immunity. (Docket No. 42 at 3). Rittacco maintains that she

waived the defense by not raising it in her Answer and that it is unfair for him to have to defend

the claim without the benefit of discovery on this issue. (Docket No. 52 at 21–22). He adds that

there are genuine disputes of material fact as to whether the District Attorney authorized the

charges or not. (Id. at 22–23).

“Absolute immunity is an affirmative defense that should be asserted in an answer.” Desi’s

Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 428 (3d Cir. 2003) (citing Fed. R. Civ. P. 12(b)).

Courts police this requirement “to avoid surprise and undue prejudice by providing the plaintiff

with notice and the opportunity to demonstrate why the affirmative defense should not succeed.”

Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). While this Court has discretion to permit

a Defendant to amend an Answer and reopen discovery, see e.g., Fed. R. Civ. P. 15(a)(2),

16(b)(1)(4), some courts have refused to permit defendants to raise the defense of derivative

prosecutorial immunity for the first time at the summary judgment stage given the prejudice to the

plaintiff. See, e.g., McLee v. Brown, No. 18-1630, 2021 WL 916651, at *20 (W.D. Pa. Feb. 19,

2021) (“it would be inappropriate to allow [a defendant] to raise” the affirmative defense of

derivative prosecutorial immunity for the first time on a motion for summary judgment).

Returning to the instant matter, the Court need not resolve the parties’ disputes and decide

whether Zelechowski provided adequate notice of derivative prosecutorial immunity because she

is entitled to qualified immunity and summary judgment will be entered in her favor on that basis.

VI. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment [41] is granted. An

appropriate Order follows.

s/Nora Barry Fischer

Nora Barry Fischer

Senior U.S. District Judge

Dated: May 22, 2024

cc/ecf: Counsel of record