Catanese v. Martino

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Nicole M. Catanese, :

Plaintiff, : CIVIL ACTION

: No. 22-821

v. :

:

David Martino, Martino Signs, :

Inc., Nicholette Daniels, :

Detective Ferdie G. Ingram, Jr., :

and the Borough of Yeadon, : January 13, 2025

Defendants. :

MEMORANDUM

Plaintiff Nicole Catanese (“Catanese”) brings suit against Detective Ferdie G.

Ingram, Jr. (“Ingram”) for (1) false arrest, false imprisonment, and malicious

prosecution (under 42 U.S.C. § 1983 and the Fourth Amendment); and (2) malicious

prosecution and intentional infliction of emotional distress (under Pennsylvania

law).1 Catanese also seeks punitive damages under § 1983 and Pennsylvania law.

Ingram moves for summary judgment as to all claims. For the reasons that follow,

the Court will (1) deny Ingram’s motion as to Catanese’s § 1983 claims and

Pennsylvania malicious prosecution claim; (2) grant Ingram’s motion as to

1 Catanese also brings suit against David Martino (“Martino”), Martino Signs, Inc. (“Martino

Signs”), and Nicholette Daniels (“Daniels”) (collectively, “Martino Defendants”), alleging related

violations of Pennsylvania law. Because the Martino Defendants withdrew their motion for

summary judgment on November 11, 2024, the Court limits its discussion to Catanese’s claims

against Ingram. See Notice of Withdrawal, ECF No. 46. Catanese’s claims against the Borough

of Yeadon were dismissed in June 2022. See Order, ECF No. 14.

Catanese’s intentional infliction of emotional distress claim; and (3) deny Ingram’s

motion as to Catanese’s claim for punitive damages without prejudice to raise the

issue at trial.

I. FACTUAL BACKGROUND

On June 9, 2020, the Delaware County Criminal Investigation Division

(“CID”) called the Yeadon Police Department to see if they had received a call from

David Martino—president and chief operating officer of Martino Signs, Inc.—

“about a potential fraud investigation.” Ingram’s MSJ Ex. A, at 5, ECF No. 32-2

(hereinafter “Police Rep.”). Yeadon Police Officers Rebecca Rasanen and Thomas

Murtha then went to Martino Signs to “make contact with Martino.” Police Rep. 5.

Neither Rasanen nor Murtha took notes during their conversation, but rather,

“interpreted what [Martino] said and wrote it . . . after the fact[.]” See Catanese’s

Resp. to Martino Defs.’ MSJ Ex. E, at 118:15-21, ECF No. 41-2 (hereinafter

“Martino Dep. Tr.”). Murtha’s subsequent write-up of their conversation is reprinted

in full below:

On 06/09/2020 at approximately 1622 hours, Yeadon Police received a

phone call from Sergeant Hackett from Delaware County Criminal

Investigations Division, who asked if the Yeadon Police received

information from David Martino about a potential fraud investigation.

Officer Murtha and I went to Martino Signs Incorporated at 453 Penn

Street to make contact with Martino. We made contact with David

Martino, the owner of Martino Signs Incorporated, who stated that a

former employer [sic] was stealing money from the company. Martino

said Nicole Cantanese [sic], former Project Manager, worked for the

company for about two and a half years, and the suspected thefts started

about a year ago. Martino said Cantanese [sic] would over price certain

jobs to make more money. Martino said Cantanese [sic] charged a job

$8,900.00, when the job was initially estimated at $7,500.00. Also,

Martino stated he had two men to a truck to deliver products for the

company and would charge approximately $1,200.00- $1,500.00 a day,

and then Cantanese [sic] started to up the charge for the two men to

about $5,000.00 a day.

Martino said that Cantanese [sic] would use her personal phone, and

her personal social media accounts to contact Martino Signs

Incorporated private contractors. Martino said Cantanese [sic] would

use these contacts for her personal agenda. Martino stated that

Cantanese [sic] stole over $100,000.00 from the company. Martino had

been in contact with Sergeant Hackett from Delaware County Criminal

Investigations Division, who said Martino should contact Yeadon

Police. Martino said he had screen shots and further documentation

proving Cantanese’s [sic] guilt. Martino is still going through all of his

documents to get as much information and evidence as possible for

police. Martino was told to email the screen shots to my Yeadon Police

email for evidence. Martino would like to press charges and pursue this

on the civil level as well.

Police Rep. 5. Martino recalls their conversation differently. See generally Martino

Dep. Tr. 90:13-94:19 and 117:10-119:11 (Martino’s testimony regarding Murtha’s

write-up of their conversation). As Martino put it: “I reported that I suspected she

was stealing . . . I explained multiple times what I suspected and they were very

confused about understanding it. And repeatedly asked me how the process went

and what exactly I thought . . . .” Martino Dep. Tr. 92:14-22. More specifically,

Martino denies that he reported that Catanese “was stealing from the company”;

rather, he claims he reported only that he “suspected” Catanese had stolen from the

company. Compare Police Rep. 5 with Martino Dep. Tr. 92:14-15. He likewise

denies that he said Catanese “stole over $100,000.00 from the company” and instead

claims he told the officers that a certain project Catanese worked on was “$100,000

shy of where it need[ed] to be.” Compare Police Rep. 5 with Martino Dep. Tr.

117:23-118:13.

On June 10, 2020, the case was assigned to Ferdie Ingram, a detective with

the Yeadon Police Department. See Catanese’s Resp. to Ingram’s MSJ Ex. 1, at

18:8-19, ECF No. 39-1 (hereinafter “Ingram Dep. Tr.”). That same day, Ingram (1)

read Murtha’s notes, but did not discuss them with Murtha or Rasanen; and (2) called

Martino to set up a time to meet. See Ingram Dep. Tr. 18:13-19; Police Rep. 6.

On June 23, 2020, Ingram and another detective met with Martino to discuss

the case. Police Rep. 6. During their meeting, Martino explained how he suspected

Catanese had stolen money from his company, but he did not show or give them any

records related to Catanese’s suspected thefts. Id.; Ingram Dep. Tr. 22:19-25:12.2

On June 24, 2020, Ingram called Catanese. Their accounts of this call differ.

Ingram and Catanese agree that (1) after “somewhat briefly” explaining “the reason

for [his] call,” Ingram asked to arrange a time for them to meet in person; (2)

2 At some point—based on the record, it is unclear exactly when—Martino sent Ingram (or

someone else at the Yeadon Police Department) a screenshot of Catanese’s Facebook messages

with one of Martino Sign’s contractors. Martino Dep. Tr. 96:2-24; Ingram Dep. Tr. 78:8-20.

Neither the screenshot nor a clear description of its contents were included in the record. When

asked whether he was “able to identify any specific criminal conduct within the screenshots,”

Ingram replied “[n]o . . . I couldn’t because I had no idea in terms of what the crime was other than

what [Martino] was telling me[.]” Ingram Dep. Tr. 20:16-19.

Catanese said she was no longer living in Pennsylvania; and (3) Catanese refused to

meet with him without a lawyer. Police Rep. 6; see also Ingram’s SUF 2 ¶ 4, ECF

No. 32-1 (hereinafter “Ingram’s SUF”) (stating Ingram told Catanese he was calling

“in reference to a blue collar theft” and that “she said she would not come without a

lawyer”); Catanese’s Resp. to Ingram’s SUF ¶ 4, ECF No. 40 (hereinafter

“Catanese’s Resp. to Ingram’s SUF”) (admitting same). Ingram and Catanese

disagree, however, as to what else (if anything) was said on that call. In his

subsequent write-up of their call, Ingram wrote that Catanese “became upset and

said that she was going to sue Martino for making a false report because of ‘the

kickbacks, that she received from the vendors.’” Police Rep. 6; Ingram Dep. Tr.

22:19-25:12. Catanese denies that she ever said this to Ingram. See Catanese’s Resp.

to Ingram’s SUF ¶ 3; Ingram’s MSJ Ex. B, at 71:1-72:24, ECF No. 32-2 (hereinafter

“Catanese Dep. Tr.”).

On June 26, 2020, Martino gave Catanese’s company computer to Ingram.

Police Rep. 6. Neither Ingram nor Martino could figure out how access the files on

the computer, as it was password-protected; accordingly, on July 15, 2020, Ingram

gave the computer to the CID for purposes of extracting and analyzing its files. See

Ingram Dep. Tr. 93:11-19; Martino Dep. Tr. 210:23-212:14; Police Rep. 6.

According to Ingram, “the investigation kind of took a stop” after he turned

over Catanese’s computer. Ingram Dep. Tr. 22:14-15. However, it picked back up

on July 21, 2020 when Martino emailed Ingram regarding “an anonymous call” he

had received from a man named Greg Gallagher (who did not identify himself on

the phone, but whose name and phone number showed up on Martino’s caller ID).

Ingram’s MSJ Ex. E, ECF No. 32-2 (July 21, 2020 email from Martino to Ingram).3

In that email, Martino wrote that Gallagher had told him Catanese was (1) “aware of

what [was] going on”; (2) “boasting about all the money she got and just bought a

boat and other high ticket items”; (3) living at Duck Neck Campground (a campsite

in Chestertown, Maryland); and (4) doing meth. Id.4

On July 27, 2020, Ingram called Gallagher “in reference to the phone call that

he made to [Martino].” Police Rep. 7; Ingram’s SUF 4 ¶ 12. In the notes he took

immediately after their call, Ingram wrote the following:

Gallagher stated in the phone call that he knows [Catanese], and that

she recently bought a boat and other high ticket items. Gallagher told

Martino that [Catanese] is aware of the situation and that she is boasting

and bragging about the money she stole. He also mentioned that she is

doing meth, as they were supposed to be somewhat involved with doing

it together. He lastly stated that she is now living out of state, in

Chestertown Maryland.

Police Rep. 7. Shortly thereafter, Ingram confirmed that Catanese had a campsite at

3 The record shows that this was the first and only time Martino and Gallagher spoke to each other.

Martino Dep. Tr. 214:4-215:2. According to Catanese, Gallagher was her former friend. See

Catanese Dep. Tr. 82:14-86:23. At her deposition, Catanese explained that “months before” she

was let go from Martino Signs, she ended their friendship due to Gallagher’s drug use. Id. at 83:5.

4 Although Catanese does not and cannot dispute the existence of Martino’s email regarding his

call with Gallagher, she does dispute the truth of what Gallagher allegedly told Martino.

Catanese’s Resp. to Ingram’s SUF ¶ 11.

Duck Neck Campground. Ingram otherwise failed to corroborate—or even attempt

to corroborate—the information provided by Gallagher. Police Rep. 7; Ingram Dep.

Tr. 29:15-31:5.

At some point thereafter, Ingram finished drafting his affidavit of probable

cause and gave it to Detective Sergeant Houghton (Ingram’s superior) for review

and approval. Ingram Dep. Tr. 112:19-113:25. According to Ingram’s undisputed

testimony, Houghton reviewed and approved it without asking any questions. Id. at

113:11-20. At no point, however, did Ingram ask Martino to review it. See Martino

Dep. Tr. 163:19-20 (“I did not see this document.”).

On August 4, 2020, Yeadon Police Department filed a criminal complaint—

accompanied by Ingram’s affidavit of probable cause prepared and signed by

Ingram—charging Catanese with theft by unlawful taking or disposition, theft by

deception, receiving stolen property, forgery, tampering with public records or

information, and identity theft. Ingram’s MSJ Ex. D, at 1-5, ECF No. 32-2

(Complaint); id. at 6-7 (Affidavit) (hereinafter “Aff.”).5 Ingram’s affidavit is

reprinted in full (with paragraph numbers added) below:

1. On 6/09/202 at 4:22 PM Yeadon Police went to Martino Signs

Incorporated at 453 Pano Street to investigate a fraud and theft act that

5 More specifically, the nine-count complaint charged her with the following: (1) theft by unlawful

taking or disposition (18 P.S. § 3921(a)); (2) theft by deception (18 P.S. § 3922(a)); (3) receiving

stolen property (18 P.S. § 3925(a)); (4) two counts of forgery (one under 18 P.S. § 4101(a)(1) and

another under 18 P.S. § (a)(2)); (5) tampering with records or identification (18 P.S. § 4104(a));

(6) identity theft (18 P.S. § 4120(a)); and (7) two counts of tampering with public records or

information (one under 18 P.S. § 4911(a)(2) and another under 18 P.S. § 4911 (a)(3)).

had occurred. Upon arrival contact was made with the owner David

Martino who stated that a former employer [sic] had stole [sic] money

from the company. Martino said the defendant identified as Nicole

Catanese, worked for the company for about two and a half years as a

Property Manager. She was hired on 5/01/2017 and fired on 5/20/2020.

Martino suspected that the thefts started close to a year ago. Martino

said Catanese would over price certain jobs to make more money on

the side. She would divide the difference between the actual price and

the inflated price sometimes with certain clients and vendors. After

going through the company records, Martino said Catanese over

charged a job to the cost of $10,000.00, when the job was initially

estimated at $7,500.00. She kept the difference[.]

2. Martino stated that it was standard procedures for his company

to have two men to a truck to deliver products, which would cost a

standard charge between $1,200.00-$1,500.00 a day. Catanese started

to up charge for the two men to about $5,000.00 a day, and again

pocketing the difference[.]

3. Martino said that Catanese would use her personal phone, and

her personal social media accounts to contact Martino Signs

Incorporated private contractors. Investigators were able to see through

further investigation that Catanese was attempting to sell Martino Signs

products from her face book account on 4/30/2020. Martino said

Catanese would use these contacts for her personal agenda, and believes

that certain vendors knew about the theft that she was committing and

continued to do business with her anyway. Martino estimated that

Catanese stole over 1 million dollars from the company at the time of

this report. The company is still trying to compute the total amount,

but estimates that it will be approximately 4-5 million dollars in loss.

4. Martino caught the thefts after vendors stared [sic] calling up

asking about when they were going to get paid. Martino then went to

his newly hired company accountant, Nicki Daniels where he had

discovered that Catanese was using her seniority, to have the new

employee submit the fraudulent invoices. After the new employee

started noticing the over charges, she alerted Martino who did some

investigating and discovered the thefts.

5. Martino said that he called Catanese into his office on 5/19/2020

to discuss the matter, when she had admitted to doing the over drafts.

On 5/20/2020 Martino again brought Catanese into his office and

explained to her that she was being fired. Prior to her departing the

company property, Catanese had deleted all her emails that she had

created using the company computer. Emails that Martino had

discovered prior to her dismissal that detailed some transactions

involving the thefts.

6. On 06/24/2020 Investigators reached out to Catanese who by her

own admission said that she cant [sic] believe that this happening or

that Dave is upset just because she was taking kick backs on the side to

make extra money. Investigators asked Catanese if Dave knew about

these actions and she said of course not.

On August 5, 2020—on the basis of the complaint and Ingram’s affidavit—

the magistrate issued a warrant for Catanese’s arrest. See Police Rep. 7. On August

14, 2020, Catanese was arrested. See id. at 8. A few days later, she posted bail and

was released. See id.

On June 3 or 4, 2021, the CID returned Catanese’s computer to Ingram.

Compare id. at 8 (supplemental police report entry dated June 3, 2021) with

Ingram’s MSJ Ex. G, at Yeadon0022 (digital forensics analysis dated June 4, 2021).

However, for reasons unexplained, neither Ingram nor others at the District

Attorney’s office could access files or otherwise “acquire evidence from the

computer.” Ingram’s SUF 5 ¶ 21; see also Ingram Dep. Tr. 74:12-25 (testimony

regarding same). Accordingly, on July 13, 2021, the case was dismissed for lack of

evidence. Ingram’s SUF 6 ¶ 24; Police Rep. 10.

II. LEGAL STANDARD

Summary judgment should be granted “if the movant shows 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” if it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence would permit

a reasonable jury to return a verdict for the nonmoving party. Id. In ruling on a

motion for summary judgment, the court must draw all inferences from the facts in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party “always bears the initial responsibility of informing the

district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). After the moving party has met its initial burden, the nonmoving party

must then “make a showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will bear the burden of proof

at trial.” Id. at 322. Both parties must support their factual positions by: “(A) citing

to particular parts of materials in the record . . . ; or (B) showing that the materials

cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). The materials in the record that parties may rely on include “depositions,

documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory

answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In opposing a motion for

summary judgment, the nonmoving party may not “rely merely upon bare assertions,

conclusory allegations or suspicions.” Fireman’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

In essence, the inquiry at summary judgment is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at

251-52.

III. DISCUSSION

A. § 1983 Claims (Count I)

Catanese brings § 1983 claims against Ingram for violation of her Fourth

Amendment right to be free from false arrest, false imprisonment, and malicious

prosecution. To recover, she “must establish that a state actor engaged in conduct

that deprived [her] of ‘rights, privileges, or immunities’ secured by the constitution

or laws of the United States.” Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000).

The threshold question for each of her claims is whether Ingram had probable cause

to arrest her. See James v. City of Wilkes–Barre, 700 F.3d 675, 683 (3d Cir. 2012)

(lack of probable cause is an element of a Fourth Amendment false arrest claim);

Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (same for Fourth

Amendment false imprisonment claim based on detention pursuant to an unlawful

arrest); Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007) (same for Fourth

Amendment malicious prosecution claim). Probable cause to arrest “exists when the

facts and circumstances within the arresting officer’s knowledge are sufficient in

themselves to 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, 483 (3d Cir. 1995); see also Wilson, 212 F.3d at 789 (“Probable cause

exists if there is a ‘fair probability’ that the person committed the crime at issue.”)

(quoting Sherwood v. Mulvihill, 112 F.3d 396, 401 (3d Cir. 1997)). While

“[p]robable cause requires more than mere suspicion . . . it does not require that the

officer have evidence sufficient to prove guilt beyond a reasonable doubt.” Orsatti,

71 F.3d at 483.

Ingram moves for summary judgment on Catanese’s Fourth Amendment

claims on two grounds: (1) he arrested her “pursuant to a valid warrant” supported

by probable cause; and (2) he is entitled to qualified immunity. Ingram’s MSJ 14,

19-21.

Catanese opposes Ingram’s motion. While she acknowledges that she was

arrested pursuant to a warrant, she claims that the warrant was not supported by

probable cause. Catanese’s Resp. to Ingram’s MSJ 8-9, ECF No. 39 (hereinafter

“Catanese’s Resp. to Ingram’s MSJ”). She also posits that Ingram’s affidavit

reflected a false and incomplete version of events, and a corrected affidavit would

not otherwise establish probable cause. See id. at 9-10. Finally, Catanese contends

that genuine disputes of material fact as to the existence of probable cause should

preclude Ingram from invoking the doctrine of qualified immunity. See id. at 11-13.

The Court addresses in turn (1) whether the arrest warrant was supported by

probable cause; (2) Catanese’s claims regarding Ingram’s affidavit; and (3) whether

Ingram is entitled to qualified immunity.

1. The arrest warrant

The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation . . .” U.S. Const. amend. IV. In

deciding whether to issue an arrest warrant, a magistrate must “make a practical,

common-sense decision whether, given all the circumstances set forth in the affidavit

before him . . . there is a fair probability” that the suspect committed the crimes in

question. Illinois v. Gates, 462 U.S. 213, 238 (1983).

When faced with a challenge to a magistrate’s probable cause determination,

a reviewing court examines only “the facts that were before the magistrate judge”—

namely, the four corners of the affidavit—to ensure “that the magistrate had a

substantial basis for concluding that probable cause existed.”6 United States v.

Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) (internal citations omitted). Furthermore,

where an arrest is made on more than one charge, “probable cause need only exist

as to any offense that could be charged under the circumstances.” Barna v. City of

Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994).

Catanese argues that Ingram’s affidavit “contains no facts” to suggest that she

committed any of the nine crimes she was charged with. Catanese’s Resp. to

Ingram’s MSJ 9. The Court disagrees. Ingram’s affidavit furnished a substantial

basis for the magistrate to conclude that probable cause existed for at least one of

the crimes at issue: theft by unlawful taking or disposition under 18 P.S. § 3921(a),

which occurs when a person “unlawfully takes, or exercises unlawful control over,

movable property of another with an intent to deprive him thereof.” See also

Commonwealth v. Dombrauskas, 418 A.2d 493, 496-97 (Pa. Super. 1980) (“To be

guilty of theft under this definition, the actor’s intention or conscious object must be

to take unlawfully the property of another for the purpose of depriving the other of

his or her property.”). Ingram’s affidavit sets forth the following, in relevant part:

6 The Court thus may not consider “the information from Gallagher known to Ingram” or whether

that information “further buttressed probable cause” because Ingram, for reasons unexplained, did

not include this information in his affidavit. Ingram’s MSJ 17; see also Johnson v. United States,

333 U.S. 10, 13-14 (1948) (“The point of the Fourth Amendment, which often is not grasped by

zealous officers, is not that it denies law enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the

often competitive enterprise of ferreting out crime.”).

(1) on June 9, 2020, Yeadon Police went to Martino Signs “to investigate a fraud

and theft act that had occurred”; (2) “[a]fter going through company records,”

Martino said that he had been able to determine that Catanese had “overcharged

jobs” and pocketed the proceeds; (3) Catanese had “us[ed] her seniority” to “submit

the fraudulent invoices”; (4) Catanese confessed to investigators that she had been

“taking kick backs on the side to make extra money”; and (5) when asked by

investigators “if Martino knew about these actions,” Catanese said “of course not.”

Aff. ¶¶ 1-3, 5-6. Based on this information in the affidavit, the magistrate had

substantial reason to believe that Catanese had unlawfully taken the moveable

property of another—namely, extra money she had obtained by submitting

fraudulent invoices and through kickbacks—and did so intending to keep it for

herself.

The Court thus concludes that Ingram’s affidavit gave the magistrate a

substantial basis to conclude that probable cause existed for Catanese’s arrest.

2. Ingram’s affidavit

In light of the above, the only way Catanese can succeed on her Fourth

Amendment claims is if she proffers evidence that Ingram knowingly or recklessly

disregarded the truth in his affidavit and that an affidavit based on what Ingram

should have told the judge would have lacked probable cause. Wilson, 212 F.3d at

786. More specifically, she must show—by a preponderance of the evidence—that

(1) Ingram “knowingly and deliberately, or with a reckless disregard for the truth,

made false statements or omissions that created a falsehood in applying for the

warrant”; and (2) those assertions or omissions were “material, or necessary, to the

finding of probable cause.” Id. at 786-87.

i. Whether Ingram knowingly, or with a reckless

disregard for the truth, made false statements or

omissions in the affidavit

The Court starts by determining whether a reasonable jury could find that

Ingram made assertions or omissions that he “knew were false, or would have known

were false except for his reckless disregard for the truth.” Id. at 787 (cleaned up).

Because the concept of “reckless disregard for the truth means different things when

dealing with omissions and assertions[,]” the Court briefly addresses each in turn.

Id.

Omissions are made with reckless disregard for the truth when an officer

withholds facts that “any reasonable person would have known . . . a judge would

wish to know.” Id. at 788 (quoting United States v. Jacobs, 986 F.2d 1231, 1235

(8th Cir. 1993)). As the Court of Appeals for the Third Circuit explained in Dempsey

v. Bucknell University, “an officer must have knowledge of the information alleged

to have been recklessly omitted” and “the information must be relevant to the

existence of probable cause,” meaning “a reasonable person would know that it

could affect the [magistrate’s] probable cause determination[.]” 834 F.3d 457, 471

(3d Cir. 2016) (emphasis in original).

Assertions are made with reckless disregard for the truth “when viewing all

the evidence, the affiant must have entertained serious doubts as to the truth of his

statements or had obvious reasons to doubt the accuracy of the information he

reported.” Wilson, 212 F.3d at 788 (quoting United States v. Clapp, 46 F.3d 795,

801 n.6 (8th Cir. 1995)). “Unlike omissions, assertions can be made with reckless

disregard for the truth even if they involve minor details.” Wilson, 212 F.3d at 788;

see also Andrews v. Scuilli, 853 F.3d 690, 698 (3d Cir. 2017) (“Misleading assertions

can relate to even ‘minor details’ . . .”). Also unlike omissions, “recklessness is

measured not by the relevance of the information,” but rather, evidence

demonstrating the officer’s “willingness to affirmatively distort truth.” Wilson, 212

F.3d at 788.

With these precepts in mind, and reading the record in a light most favorable

to Catanese, the Court concludes that a reasonable jury could find that Ingram made

a number of reckless omissions and assertions in his affidavit.

First, Ingram starts the affidavit by stating that on June 9, 2020, “Yeadon

Police went to Martino Signs . . . to investigate a fraud and theft act that had

occurred.” Aff. ¶ 1 (emphasis added). By contrast, Murtha’s notes from that day,

which Ingram admits to having reviewed before filing the affidavit, tell a different

and far less definitive story: “Yeadon Police received a phone call from Sergeant

Hackett from Delaware County Criminal Investigations Division, who asked if

Yeadon Police received a call from David Martino about a potential fraud

investigation.” Police Rep. 5 (emphasis added). The information Ingram omitted—

that the June 9 visit to Martino Signs was prompted by a call from the CID regarding

“a potential fraud investigation” as opposed to “a fraud and theft act that had

occurred”—is unquestionably relevant to the existence of probable cause and thus

should have been included in the affidavit. Compare Police Rep. 5 with Aff. ¶ 1.

Second, Ingram asserts that “Martino . . . stated that a former employe[e] had

stole[n] money from the company.” This statement is consistent with Murtha’s

notes; however, it is contradicted by Martino’s deposition testimony that he only

ever “reported that [he] suspected she was stealing” to Murtha, Rasanen, or (most

importantly) Ingram. Martino Dep. Tr. 92:14-15 (emphasis added); see also id. at

92:17-19 (“I explained multiple times what I suspected and they were very confused

about understanding it.”), 94:5-6 (testifying that Officer Murtha’s notes were

“incorrect”), 149:2-14 (testifying that “the wording” Ingram used was “incorrect . .

. I said I suspected that she stole money.”). The same can be said regarding a number

of Ingram’s statements in the affidavit about what Martino allegedly “said”: they

suggest by omission that Martino definitively knew that Catanese committed the

thefts in question and had concrete evidence detailing how and when she did. See

Aff. ¶ 1 (“Martino said Catanese would over price certain jobs to make more money

on the side. She would divide the difference between the actual price and the inflated

price sometimes with certain clients and vendors.”), id. (“After going through the

company records, Martino said Catanese over charged a job to the cost of

$10,000.00, when the job was initially estimated at $7,500.00. She kept the

difference.”), ¶ 2 (“ . . . Martino stated that . . . Catanese started to up charge for the

two men to about $5,000.00 a day, and again pocketing the difference.”), ¶ 3

(“Martino said . . . certain vendors knew about the theft she was committing and

continued to business with her anyway.”), ¶ 4 (“Martino caught the thefts . . .”), id.

(Martino “did some investigating and discovered the thefts.”). Given that Ingram

wrote the affidavit after having spoken to Martino on multiple occasions, a

reasonable jury could find facts that lead them to conclude that Ingram knew that

Martino’s suspicions about Catanese were just that: suspicions. Because any

reasonable person would know that a judge would want to know that Martino only

ever “suspected” that Catanese had committed the acts in question, Ingram may have

recklessly omitted this information from the affidavit.

Third, Ingram’s assertions regarding Martino’s estimated losses—that

“Martino estimated that Catanese stole over 1 million dollars from the company at

the time of this report” and “[t]he company is still trying to compute the total amount,

but estimates that it will be approximately 4-5 million dollars in loss”—are also

contradicted by Martino’s testimony. Aff. ¶ 3. As to the first, Martino testified that

he told Ingram that Catanese was “working on an account that ha[d] a million dollars

in receivables”—not that she had stolen over a million dollars from the company.

Martino Dep. Tr. 158:6-162:3. As to the second, Martino testified that he told

Ingram he estimated that Martino Signs did 5 million dollars total in business

between 2017 and 2020—not, as Ingram averred, that Catanese stole that amount.

See id. at 162:23-163:18. Indeed, Martino said it was “impossible” for Catanese to

have stolen $4-5 million dollars and that he “would have never signed off” on these

estimates had he reviewed the affidavit before it was submitted to the magistrate. Id.

at 162:3, 162:18. Moreover, considering that Murtha’s notes state that Martino

initially estimated a loss of $100,000, a reasonable jury could find that Ingram “had

obvious reasons to doubt the accuracy” of the exponentially higher losses he

ultimately reported in the affidavit—especially because he never saw documents

corroborating them. Wilson, 212 F.3d at 788.

Fourth, Ingram asserts that Martino “went to his newly hired company

accountant, Nicki Daniels, where he had discovered that Catanese was using her

seniority to submit the fraudulent invoices.” Aff. ¶ 4. However, when Martino was

asked whether Ingram’s assertion was correct, Martino said no. He clarified that he

said Catanese “was trying to get [Daniels] to push invoices in that were more than

we needed to pay” but “they didn’t go through.” Martino Dep. Tr. 170:6-16

(emphasis added). Ingram’s choice of words (“Catanese was using her seniority to

submit the fraudulent invoices”) suggests that Martino had identified concrete

evidence of Catanese’s theft. Aff. ¶ 4. By contrast, Martino’s explanation (Catanese

tried to submit invoices “that were more than we needed to pay” and “didn’t go

through”) is far less inculpatory. Martino Dep. Tr. 170:6-16. A reasonable jury

could thus infer that Ingram affirmatively distorted what Martino told him in service

of solidifying the charges against Catanese.

Fifth, Ingram asserts that, after Catanese was fired, she “deleted all her emails

that she had created using [her] company computer. Emails that Martino had

discovered prior to her dismissal that detailed some transactions involving the

thefts.” Aff. ¶ 5. At his deposition, Martino confirmed that he told Ingram that

Catanese deleted all of her emails; however, he denied that he ever “discovered” (or

ever told Ingram that he discovered) any emails “involving the thefts” before he fired

Catanese. Martino Dep. Tr. 177:16-179:23. Weighing this conflicting evidence in

the light most favorable to Catanese, a reasonable jury could find that Ingram

“willingly and affirmatively distorted” what Martino told him to bolster the case

against Catanese. Wilson, 212 F.3d at 788 (cleaned up).

Sixth, Ingram’s assertion that on May 19, 2020, Martino and Catanese

“discussed the matter” and Catanese “admitted to doing the over drafts” likewise

conflicts with Martino’s testimony. Aff. ¶ 5. While Martino confirmed that he and

Catanese “discussed the matter” on May 19, he denied that Catanese ever “admitted”

to anything. Martino Dep. Tr. 175:23-177:12. Considered alongside Martino’s

testimony that he only told Ingram that he “suspected” Catanese had stolen from

him, Ingram had “obvious reasons to doubt” that Catanese made any such admission

of wrongdoing to Martino. Wilson, 212 F.3d at 788. Viewing the evidence in the

light most favorable to Catanese, a reasonable jury could find facts that lead them to

conclude that Ingram’s assertion was made with reckless disregard for the truth.

Finally, Ingram’s description of his June 23, 2020 conversation with Catanese

in the affidavit is far more detailed (and inculpatory) than his contemporaneous write

up of their conversation. In the affidavit, Ingram writes: “Investigators reached out

to Catanese who by her own admission said that she cant [sic] believe that this

happening or that Dave is upset just because she was taking kick backs on the side

to make extra money. Investigators asked Catanese if Dave knew about these actions

and she said of course not.” Aff. ¶ 6. In his notes, however, Ingram wrote only that

Catanese “said she was going to sue Martino’s for making a false report to us,

because of ‘the kick backs, that she received from his vendors.’” Police Rep. 6.

While the version presented in Ingram’s affidavit reads like a confession, the version

presented in Ingram’s notes reads like a refutation. Evaluating these conflicting

accounts in the light most favorable to Catanese, a reasonable jury could determine

that Ingram’s description of their conversation was made with reckless disregard for

the truth.

ii. Materiality

Next, the Court must “excise the offending inaccuracies and insert the facts

recklessly omitted, and then determine whether or not the ‘corrected’ warrant

affidavit would establish probable cause.” Wilson, 212 F.3d at 789; Dempsey, 834

at 470 (“[W]hen a court determines that information was asserted or omitted in an

affidavit of probable cause with at least reckless disregard for the truth, it must

perform a word-by-word reconstruction of the affidavit.”). If it would, then

Ingram’s assertions and omissions were not material and his motion for summary

judgment on Catanese’s Fourth Amendment claims must be granted. See id.

Ingram’s corrected affidavit would read as follows:7

1. On 6/09/2020 at 4:22 PM Yeadon Police [received a phone call

from Sergeant Hackett from Delaware County Criminal

Investigations Division, who asked if Yeadon Police received

information from David Martino about a potential fraud

investigation. Yeadon Police then] went to Martino Signs

Incorporated at 453 Pano Street to investigate a fraud and theft act

that had occurred. Upon arrival contact was made with the owner

David Martino who stated that [he suspected] a former employer [sic]

had stole money from the company. Martino said the defendant

identified as Nicole Catanese, worked for the company for about two

7 Recklessly omitted information has been added in bold and bracketed text; reckless assertions

have been excised as indicated in bold and struck-through text. To the extent the Court’s

reconstruction includes disputed facts, it uses the facts most favorable to Catanese. See Dempsey,

834 F.3d at 468 (in evaluating probable cause at the summary judgment stage, “we view all such

facts [favorable and unfavorable to the nonmovant] and assess whether any reasonable jury could

conclude that those facts, considered in their totality in the light most favorable to the nonmoving

party, did not demonstrate a ‘fair probability’ that a crime occurred.”) (emphasis added); see also

Saintil v. Borough of Carteret, No. 22-2898, 2024 WL 3565308, at *9-10 (3d Cir. July 29, 2024)

(using disputed facts most favorable to nonmovant to reconstruct affidavit).

and a half years as a Property Manager. She was hired on 5/01/2017

and fired on 5/20/2020. Martino suspected that the thefts started close

to a year ago. Martino said [that he suspected] Catanese would over

price certain jobs to make more money on the side. [He suspected

she] She would divide the difference between the actual price and the

inflated price sometimes with certain clients and vendors. After going

through the company records, Martino said [he suspected] Catanese

over charged a job to the cost of $10,000.00, when the job was

initially estimated at $7,500.00. [He suspected she] She kept the

difference[.]

2. Martino stated that it was standard procedures for his company to

have two men to a truck to deliver products, which would cost a

standard charge between $1,200.00-$1,500.00 a day. [He suspected

that] Catanese started to up charge for the two men to about

$5,000.00 a day, and again pocketing the difference[.]

3. Martino said that Catanese would use her personal phone, and her

personal social media accounts to contact Martino Signs Incorporated

private contractors. Investigators were able to see through further

investigation that Catanese was attempting to sell Martino Signs

products from her face book account on 4/30/2020. Martino said

Catanese would use these contacts for her personal agenda, and

believes that certain vendors knew about the theft that [he suspected]

she was committing and continued to do business with her anyway.

Martino estimated that Catanese stole over 1 million dollars from

the company at the time of this report. The company is still trying

to compute the total amount, but estimates that it will be

approximately 4-5 million dollars in loss.

4. Martino caught [started suspecting] the thefts after vendors

star[t]ed calling up asking about when they were going to get paid.

Martino then went to his newly hired company accountant, Nicki

Daniels where he had discovered that Catanese was [trying to use]

using her seniority, to have the new employee submit the fraudulent

[inflated] invoices. After the new employee started noticing the over

charges, she alerted Martino who did some investigating and

discovered the thefts.

5. Martino said that he called Catanese into his office on 5/19/2020 to

discuss the matter when she had admitted to doing the over drafts.

On 5/20/2020 Martino again brought Catanese into his office and

explained to her that she was being fired. Prior to her departing the

company property, Catanese had deleted all her emails that she had

created using the company computer. Emails that Martino had

discovered prior to her dismissal that detailed some transactions

involving the thefts.

6. On 06/24/2020 Investigators reached out to Catanese who by her

own admission said that she can[‘]t believe that this happening or

that Dave is upset just because she was taking kick backs on the

side to make extra money. Investigators asked Catanese if Dave

knew about these actions and she said of course not. [she was

going to sue Martino’s for making a false report to us, because of

“the kick backs, that she received from his vendors.”]

Drawing all inferences in favor of Catanese, a reasonable jury could find that

the corrected affidavit would not support probable cause for Catanese’s arrest.

While probable cause to arrest does not require “evidence sufficient to prove guilt

beyond a reasonable doubt,” it does require evidence beyond “mere suspicion.”

Orsatti, 71 F.3d at 482-83. Here, a reasonable jury could find the following: (1)

Martino suspected that Catanese had stolen from him by overpricing certain jobs and

keeping the proceeds for herself; (2) investigators saw that Catanese attempted to

sell Martino Signs products from her Facebook account; (3) Martino said that

Catanese had tried and failed to submit inflated invoices; (4) Martino said Catanese

deleted all of her emails from her company computer after she was fired; and (5)

Catanese told investigators she was going to sue Martino for making a false report

about her. These facts fall far short of establishing a fair probability that Catanese

committed any of the nine crimes she was alleged to have committed; indeed, a

reasonable jury could conclude that they suggest nothing more than mere suspicion.

In conclusion, genuine disputes of material fact exist as to (1) whether Ingram

omitted or asserted information in his affidavit with at least a reckless disregard for

the truth; and (2) whether his omissions and assertions were material to the finding

of probable cause. Viewing the record and drawing all inferences in favor of

Catanese, a reasonable jury could certainly find that Ingram made reckless omissions

and assertions, and likewise, a corrected affidavit would fail to establish probable

cause for Catanese’s arrest. However, exactly which facts should be found and

which inferences should be drawn are determinations best made by a jury. See

Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (“Generally,

the question of probable cause in a section 1983 damage suit is one for the jury. This

is particularly true where the probable cause determination rests on credibility

conflicts.”) (cleaned up). For these reasons, the Court must therefore deny Ingram’s

motion for summary judgment on Catanese’s § 1983 claims.

3. Qualified immunity

Finally, the Court addresses Ingram’s qualified immunity defense. To

determine whether a government official is entitled to qualified immunity, a court

must consider two questions: (1) whether the facts shown by plaintiff make out a

violation of a constitutional right; and (2) whether the right at issue was “clearly

established” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S.

223, 232 (2009). “The relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194,

202 (2001) (internal citation omitted). However, “the existence of disputed,

historical facts material to the objective reasonableness of an officer’s conduct will

give rise to a jury issue.” Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002).

Ingram argues that, even if his conduct may have violated Catanese’s Fourth

Amendment rights, he is nonetheless entitled to summary judgment under the

doctrine of qualified immunity. In doing so, he appears to contemplate that the

answer to the first qualified immunity question could be yes. Rightly so. As

discussed above, and taking the facts most favorable to Catanese, a reasonable jury

could conclude that Ingram arrested Catanese without probable cause, thereby

violating her Fourth Amendment rights.

As for the second question, “there is no question that . . . the right to be free

from arrest except on probable cause was clearly established” at the time of

Catanese’s arrest. Andrews, 853 F.3d at 705 (cleaned up). Likewise, “the right to

be free from prosecutions on criminal charges that lack probable cause was also

known and clearly established” when Ingram prepared his affidavit. Id. (citing

Donahue v. Gavin, 280 F.3d 371, 380 (3d Cir. 2002)). Notwithstanding the fact that

these rights were grounded in well-settled law, whether Ingram’s conduct was

objectively reasonable hinges on the disputed facts discussed above. These are facts

that must be decided by a jury and likewise preclude Ingram from invoking a

qualified immunity defense. The Court will therefore deny Ingram’s motion for

summary judgment on the question of qualified immunity.

B. State Law Claims

Catanese also brings two claims against Ingram under Pennsylvania law:

malicious prosecution and intentional infliction of emotional distress (“IIED”).

Ingram moves for summary judgment on both. For the reasons that follow, the Court

will deny Ingram’s motion as to Catanese’s malicious prosecution and grant it as to

her IIED claim.

1. Malicious Prosecution (Count II)

Under Pennsylvania law, “[a] cause of action for malicious prosecution has

three elements. The defendant must have instituted proceedings against the plaintiff

(1) without probable cause, (2) with malice, and (3) the proceedings must have

terminated in favor of the plaintiff.” Kelley v. Gen. Teamsters, Chauffeurs &

Helpers, Loc. Union 249, 544 A.2d 940, 941 (Pa. 1988); see also id. (“Malice may

be inferred from a lack of probable cause.”).

As discussed at length above, there are genuine disputes of material fact as to

the existence of probable cause. The Court will therefore deny Ingram’s motion for

summary judgment on Catanese’s malicious prosecution claim.

2. Intentional Infliction of Emotional Distress (Count III)

To establish an IIED claim under Pennsylvania law, a plaintiff must show that

defendant’s conduct was (1) extreme and outrageous; (2) intentional or reckless; and

(3) caused severe emotional distress. Wisniewski v. Johns-Manville Corp., 812 F.2d

81, 85 (3d Cir. 1987). The third element requires “expert medical confirmation” of

the “nature and extent” of their alleged emotional distress. Kazatsky v. King David

Memorial Park, Inc., 527 A.2d 988, 995 (Pa. 1987); see also Bolden v. Se.

Pennsylvania Transp. Auth., 21 F.3d 29, 35 (3d Cir. 1994) (“Under Pennsylvania

law, expert medical evidence must be presented before a plaintiff can recover for

intentional infliction of emotional distress.”); Paves v. Corson, 765 A.2d 1128, 1134

(Pa. Super. Ct. 2000) (“[A] plaintiff . . . must prove through expert medical testimony

that she actually suffered the claimed distress.”), rev’d on other grounds, 801 A.2d

546 (Pa. 2002).

The Court concludes that Ingram is entitled to summary judgment on

Catanese’s IIED claim because Catanese has not adduced expert medical

confirmation of her alleged emotional distress. Ingram’s MSJ 10. Although

Catanese claims she suffered and sought treatment for a “loss of appetite, inability

to sleep, and severe mental anguish,” she presents no expert medical confirmation

of her alleged distress. Catanese’s Resp. to Ingram’s MSJ 15; see also Catanese’s

Resp. to Martino Defs.’ MSJ Ex. H, at 6-7, ECF No. 41-2 (Catanese’s answers to

Ingram’s interrogatories, detailing her distress and claiming she received treatment

from Drs. McCabe and Rowan). Her “unsubstantiated averments,” by themselves,

are not enough. Kazatsky, 527 A.2d at 992 (affirming dismissal of IIED claim where

plaintiffs “presented no expert testimony, indeed no evidence at all except their own

unsubstantiated averments, concerning their alleged injuries.”). Absent expert

medical corroboration, Catanese’s IIED claim necessarily fails. See Gray v.

Huntzinger, 147 A.3d 924, 929 (Pa. Super. Ct. 2016) (holding plaintiff was not

entitled to recover for IIED because he failed to present expert medical testimony

confirming alleged emotional distress); see also Warner v. Montgomery Twp., No.

CIV.A. 01-3309, 2002 WL 1623774, at *10 (E.D. Pa. July 22, 2002) (granting

defendants summary judgment on IIED claim because plaintiff “[did] not attach[]

any affidavits or medical reports showing that he has competent medical evidence

revealing severe emotional distress.”). The Court will thus grant Ingram’s motion

for summary judgment as to Catanese’s IIED claim.

C. Punitive Damages Under § 1983 and State Law (Count X)

The Court will deny Ingram’s motion for summary judgment as to Catanese’s

claim for punitive damages without prejudice to raise the issue at trial.

IV. CONCLUSION

For the foregoing reasons, the Court will deny in part and grant in part

Ingram’s motion for summary judgment as follows:

• Ingram’s Motion for Summary Judgment as to Catanese’s § 1983

claims for Fourth Amendment false arrest, false imprisonment, and

malicious prosecution will be denied.

• Ingram’s Motion for Summary Judgment as to Catanese’s state law

claim for malicious prosecution will be denied.

• Ingram’s Motion for Summary Judgment as to Catanese’s state law

claim for intentional infliction of emotional distress will be granted.

• Ingram’s Motion for Summary Judgment as to Catanese’s claim for

punitive damages will be denied without prejudice to raise the issue at

trial.

_s/ANITA B. BRODY, J.________

ANITA B. BRODY, J.