# Opposition Brief — Wolf v. Coleman

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1156%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 987

## Text

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iG 1 ate
No. 01-1148
IN THE
Supreme Court of the United States

LARRY WOLF; PETER NM HUGGER; FRED S. O’BRIEN;
and MAURICE D. MYERS,
Petitioners,
v.

ROBERT L. COLEMAN; MICHAEL A. GEORGE;
ALAN CAREY; BERNARD A. YANNETTI, JR.; MATTHEW
J.O’BRIEN; BERWICK TOWNSHIP; and KEVIN WILSON,

Respondents.

On PETITION FOR Writ OF CERTIORARI TO THE
UNITED STATES CourRT OF APPEALS For THE THIRD CIRCUIT

BRIEF IN OPPOSITION
James D. YOUNG ANTHONY R. SHERR
LAVERY, FAHERTY, YOUNG & Counsel of Record
PATTERSON, P.C. Lori J. MILLER
225 Market Street Mayers, MENNiES & SHERR, LLP
Suite 304 3031 Walton Rd.
P.O. Box 1245 Bldg. A, Suite 330
Harrisburg, PA 17108-1245 P.O. Box 1547
(717) 233-6633 Blue Bell, PA 19422-0440
Attorney for Respondent (610) 825-0300
Kevin Wilson Attorneys for Respondents
DaviID KARAMESSINIS Robert L. Coleman, Alan Carey
DevLIN & DEVINE and Berwick Township

100 W. Elm Street, Suite 200
Conshohocken, PA 19428
(610) 397-4635
Attorney for Respondents
Michael A. George, Bernard A. Yannetti, Jr.
and Matthew J. O'Brien ~

i

QUESTIONS PRESENTED'

1. Whether the District Court and Court of Appeals, in its
review, properly dismissed Count I of the Complaint, alleging a
Fourth Amendment violation, for failure to state a claim where
there was no direct attack on the validity of the applicable search
warrant nor was there any allegation that the officer preparing
the warrant application deliberately falsified information or
included information in reckless disregard of its truth or falsity?

2. Whether the District Court and Court of Appeals, in its
review, properly dismissed Petitioners’ Complaint for failure to
state a § 1983 conspiracy, where Plaintiffs’ “ambiguous
allegations and vague inferences” failed to specifically allege
the necessary elements of a conspiracy?

3. Whether the District Court and Court of Appeals, in its
review, properly dismissed Count II of the Complaint for failure
to state a substantive due process or First Amendment retaliation
claim, particularly where Petitioners failed to alleged a violation
of a protected property interest?

4. Whether the District Court and Court of Appeals,
in its review, properly determined that Count III of Petitioners’
Complaint failed to state a claim for a § 1983 malicious
prosecution based on the Fourth Amendment, where the
Complaint failed to allege any pretrial deprivation of their
personal liberty worthy of protection afforded by the Fourth
Amendment?

5. Whether the District Court and Court of Appeals,
in its review, properly determined that Count IV of Petitioners’
Complaint failed to state a claim upon which relief could be
granted, particularly where there was no discernible due process
violation?

1. It should be noted that contrary to Supreme Court Rule 24(a)
the questions raised in Petitioners’ “Questions Presented”
are substantively different from those mentioned in the body of their
Argument.

il

6. Whether the District Court and Court of Appeals, in its
review, properly determined that Respondent George was
entitled to absolute prosecutorial immunity?

7. Whether the District Court and Court of Appeals, in its
review, properly determined that Detective Wilson was entitled
to qualified immunity where it is clear that he could have
reasonably believed that his conduct did not violate Petitioner,
Wolf’s rights?

iti

TABLE OF CONTENTS

SEPT OTE T ECT ORPTRE TET

sl ee ee ed ee a tu pel

Table of Cited Authorities ....................8.

Counterstatement of the Case ..................

Summary of the Argument ...............0005.

Reasons for Denying the Writ ..................

A. Legal Standard ............. becnvaxe,
B. The Search Of Wolf’s Office Did Not Violate
The Fourth Amendment ................

C. Count I Of Plaintiffs’ Complaint Fails To
State A Claim For § 1983 Conspiracy .....

D. Count II Fails To StateA Claim ..........
E. The Prosecution Of The BTMA Members For
Violation Of The Sunshine Act Is Not A
Seizure Under The Fourth Amendment ....

F. Count Iv Fails To State A Claim Upon Which
rr kc cdeaces ates

G. District Attorney George Is Entitled To
Bg Ee eee eer eee

H. The Individual Respondents Are Entitled To
EE Pere Ee
ee i era deere

iv

TABLE OF CITED AUTHORITIES

Page
Cases:
Albright v. Oliver, 510 U.S. 266 (1994) .......... 19, 20
Alexander v. Whitman, 114 F.3d 1392 (3d Cir.
POPPE CPOE Te eee OE ETE ; 11
Ammlung v. City of Chester, 494 F.2d 811 (3d Cir.
rr Or reer ere er epee 14
Anderson v. Creighton, 483 U.S. 635 (1987) ..... 25
Barkauskie v. Indian River School District, 951
P. Da. SEP GS. EE, TI cn ctccssvwceess 15, 19, 21
Board of the County Commissioner of Bryan County,
Oklahoma y. Jill Brown, 520 U.S. 397 (1997) .. 17
Brooks v. George County, 84 F.3d 157 (Sth Cir.)
cert. denied, 117 S. Ct. 359 (1997) ........... 24
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ..... 24
Burns v. Reed, 500 U.S. 478 (1991) ............. 24
CPC v. State Ethics Commission, 698 A.2d 155 (Pa.
ed, Sa rey ee Se 23
Cuffeld v. Supreme Court of Pa., 936 F. Supp. 266
Ca |) Bee a ae ee 16

Elder v. Athens Clarke County, 54 F.3d 694
CRE Cie, Oe vo owes Cebcvckuscesnctaseeet 24

Cited Authorities
Page
Franks v. Delaware, 438 U.S. 154 (1978) ........ 12, 13
Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir.
|) er Pr ere rary: Le 20, 21
Hanlon v. Berger, 526 U.S. 808 (1999) .......... 27
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ....... 25
Hunter v. Bryant, 502 U.S. 224 (1991) .......... 25
Imbler v. Pachtman, 424 U.S. 409 (1976) ........ 23
Independent Enterprises, Inc. v. Pittsburgh Water &
Sewer Authority, 103 F.3d 1165 (3d Cir. 1997) .. 16
Kalina v. Fletcher, 118 S. Ct. 502 (1997) ........ 23
Labalokie v. Capital Area Intermediate Unit,
926 F. Supp. 503 (M.D. Pa. 1996) ............ 14
Los Angeles v. Heller, 475 U.S. 796 (1986) ...... 15, 19
_ Maine v. Thiboutot, 448 U.S. 1 (1980) .......... a
Malley v. Briggs, 475 U.S. 335 (1986) .......... 25
Markowitz v. Northeast Land Co., 906 F.2d 100
(96 Cie. (9D i css esc ctv ceasceseste ern 10

Merkle v. Upper Dublin School Dist., 211 F.3d 782
5G Cae BOE in nc bavencddaweseantewasss 19, 20, 22

vi

Cited Authorities
Page

Monell v. Dept. of Social Services, 436 U.S. 658
fo FO eee ee ey eee rer ET ere ey 17, 21

Mt. Healthy City School District Board of Education
v. Doyle, 429 U.S. 274 (1977)... cececvcccess 22, 23

Nami v. Fauver, 82 F.2d 63 (3d Cir. 1996) ....... 10, 11

Nicholas v. Pennsylvania State University, 227 F.3d
USS COG COs. DORE ack duknveuierenees 16, 18, 23

Panayotides v. Rabenold, 35 F. Supp. 2d 411
CEE ae. BO Kh 055s cacneds trees 14

Pension Benefit Guaranty Corp. v. White
Consolidated Industries, Inc., 998 F.2d 1192
(3d Cir. 1993) cert. denied, 510 U.S. 1042

CEWPEE ia ove kod eedeuebes Get hea iad 10
Reich v. Beharry, 883 F.2d 239 (3d Cir. 1989) .... 16
Rizzo v. Goode, 423 U.S. 362 (1978) ............ 17

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)

Roe v. San Francisco, 109 F.3d 578 (9th Cir. 1997) .. 24
Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989) ...... 11

Saucier v. Katz, 533 U.S. 194 (2001) ............ 26

Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997) .. 12

vii

Cited Authorities

Page

Spencer v. Steinman, 968 F. Supp. 1011 (E.D. Pa.
SED odd cveteviscd devsusbesveedsesevenss 14

“

Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998) .. 22
United States v. Leon, 468 U.S. 897 (1984) ...... 26, 27
Wilson v. Layne, 526 U.S. 603 (1999) ........... 27

Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118
oo fe | GPP rere TT eTerrrer ire 16

United States Constitution:

es, ic svaaeeaeheusenuses passim
PRE FI — ons oc eccucvceseoseceesecs passim
eee seb eeerenss 3, 16,17
Statutes:

BF is ETE 6 cc cecadowassoenedssnetcanes 4

Se eis O FUE ow iva cccceccceteceseeserens passim

vill

Cited Authorities
Page

Rules:

Federal Rule of Civil Procedure 12(b)(6) ....5, 6, 10, 14

United States Supreme Court Rule 10 ........... 10
United States Supreme Court Rule 15 ........... 6
United States Supreme Court Rule 24(a) ......... i
United States Supreme Court Rule 24(g)......... ]
United States Supreme Court Rule 24(h) ........ 9

-_ —————eeeeeeeereeee SS

|

COUNTERSTATEMENT OF THE CASE

Initially, contrary to Supreme Court Rule 24(g),
Petitioners completely fail to make appropriate citations to
the facts of record in their Statement of the Case.
More importantly, Petitioners now include facts not of record
below, which are not appropriate for consideration by this
Honorable Court. Specifically, Petitioners allege, in part,
the following facts not of record: Mr. Coleman approached
Petitioner, Wolf and asked him to “betray his client”;
Wolf was told not to share information with his clients;
Mr. Wolf reported Coleman’s actions to his clients and,
“ .. the response was to have Wolf record a judgment for
his fees, a perfectly legal process for which they openly
voted”; Wolf was politically neutral and was not involved in
any political disagreements with any persons or factions; it
was decided that George should not bring the charges against
the authority member Petitioners as D.A., because it would
frighten the official community to have the D.A. initiate
“Sunshine Act” charges against an elected official; Coleman
called the local newspaper and scheduled a reporter to appear
at the search of Wolf’s office; Wolf retained the services of
one of Pennsylvania’s more prominent ethics lawyers who
called Mr. George and explained the state of the law and that
it was plain that Mr. Wolf was not only not subject to the
law, but that he had done nothing wrong; “no discovery was
conducted because Respondents wished in certain cases to
await the decision of the District Court on their Motions to
Dismiss ... and because some defense counsel were too
busy.” (See Petition, pp. 2-6).

Conversely, the facts of record as alleged in the
Complaint and outlined in the respective District Court and
Appellate Court Opinions are set forth below.

On May 22, 2000, Plaintiff/Appellants/Petitioners,
Larry Wolf, Peter Hugger, Fred S. O’Brien and Maurice D.
Myers instituted this purported civil rights action in order to

2

recover for alleged vioiations of their federally protected
rights in an action against Robert L. Coleman, Adams County
District Attorney Michael A. George, Alan Carey,
Adams County Assistant District Attorney Bernard A.
Yannetti, Jr., Detective Kevin Wilson of the Borough of
Gettysburg Police Department, Adams County Detective
Matthew J. O’Brien and Berwick Township. Petitioners
alleged generally that the Defendants/Respondents conducted
an unlawful search of Larry Wolf’s law office (Count I);
that Defendants/Respondents refused to pay Wolf’s legal fees
for his work as a part-time Solicitor for the Berwick Township
Municipal Authority (Count II); and that Defendants/
Respondents engaged in the malicious prosecution
of the remaining Petitioners, O’Brien, Myers and Hugger
(Count III). In addition, Petitioners assert both federal
and supplemental state law claims for conspiracy
(Counts IV and V). (App. 8a).

Petitioners, Peter Hugger, Fred S. O’Brien and
Maurice D. Myers are former members of the Berwick
Township Municipal Authority (hereinafter “BTMA”).
(App. 9a; Comp. at 91).? Petitioner, Larry Wolf allegedly
is a former part-time Solicitor for BTMA. (App. 9a; Comp.
at 413). The Complaint is based on three separate incidents.
Initially, Mr. Wolf alleges that he was subject to an unlawful
search and seizure, and also alleges that Defendants deprived
him of attorney’s fees. (App. 10a). Also, Mr. Hugger,
Mr. O’Brien and Mr. Myers seek damages for alleged
malicious prosecution.

In 1995, a dispute allegedly arose between Berwick
Township Supervisors and the BTMA regarding a sewer
project. (App. 10a; Comp. at 14). Purportedly, in June 1997,
Mr. Coleman, a Berwick Township Supervisor, called

2. References to the Appendix attached to the Petition for a
Writ of Certiorari are set forth as “App. __”; references to the
Plaintiffs’ Complaint are set forth as “Comp. at__.”

3

attorney Wolf and told him that the Township would not pay
his legal fees unless Wolf, “. . . used his influence to support
the Township’s position with regard to the aforementioned
sewer project.” (Comp. at 417). In August 1997, the Township
allegedly acted to take over the sewer project presumably by
way of mandamus action. (Comp. at 419). Wolf was directed
by the BTMA to defend the mandamus action on behalf of
the BTMA. (Comp. at 19). The Township prevailed in the
mandamus action early in 1998. (Comp. at 419).

Allegedly, the Township is required to pay Mr. Wolf’s
legal fees. (Comp. at 417). The Complaint alleges that Wolf’s
attorney’s fees totaled $11,376.00, including defense of the
mandamus action. (Comp. at 919, 20). This dispute, which
is actually a billing dispute, purportedly forms the basis for
Count II of Plaintiffs’ Complaint, alleging a violation of
Mr. Wolf’s First and Fourteenth Amendment rights.
(App. 10a).

Meanwhile in July 1997, the Complaint alleges that
the Township authorized Defendant, Alan Carey to file a
private criminal Complaint against Hugger, O’Brien
and Myers for violations of the Sunshine Act. (App. 11a;
Comp. at 921). After a District Justice hearing, the
Plaintiffs were found guilty of these violations. (App. 11a;
Comp. at 422). However, Plaintiffs/Petitioners appealed to
the Common Pleas Court of Adams County and eventually,
in the spring of 1999, the charges were dropped by
Mr. George. (Comp. at $923, 24). Allegedly, this was done
only after Defendants, George, the District Attorney,
Coleman, Carey and the Township offered to drop the charges
if Plaintiffs donated $50 to a charity. (Comp. at 925).
When the Plaintiffs refused, Defendants allegedly
asked Plaintiffs to resign. (Comp. at 425). At the time,
Defendants purportedly offered to pay Mr. Wolf’s legal fees.
(Comp. at $25). In the fall of 1999, it was announced that
the charges had been nolle prossed because they, “. . . served
no use for public purpose.” (Comp. at 924). As the District

4

Court observed, the initial charges are those alleged
by Plaintiffs in Count III of their Complaint to have
been maliciously brought against them in the first place.

(App. 11a).

On May 22, 1998, Defendants, Yannetti, an Assistant
District Attorney, O’Brien and Wilson allegedly searched
Mr. Wolf’s office, and downloaded files from his computer
onto computer disks pursuant to a search warrant obtained
by the Adams County District Attorney’s Office. (Comp. at
49127, 28 and 31). ADA Yannetti reportedly told Mr. Wolf
that District Attorney George sent him to Wolf’s office.
(Comp. at 429). The search was made pursuant to a search
warrant, although the Complaint alleges that the probable
cause Affidavit in support of the search warrant was baseless.
(Comp. at 931). The warrant was issued by District Justice
Mervin L. Dubs on May 22, 1998.’ County Detective
M.J. O’Brien was the affiant on the Affidavit, which Affidavit
set forth that: Larry Wolf was the Solicitor for the BTMA;
Wolf filed a civil action against the BTMA seeking payment
for his legal representation of the BTMA; and that Wolf
filed an Answer with confession of judgment on behalf
of the BTMA admitting the allegations in the Complaint.
(See Warrant and Affidavit).

Respondent, Detective Kevin Wilson of the Borough
of Gettysburg Police Department executed an unsworn
declaration under penalty of perjury pursuant to 28 U.S.C.
§ 1746 setting forth his personal knowledge of the facts
material to the dispositive motion filed below.‘ Essentially,
Detective Wilson assisted Detective O’Brien of the Adams

3. See Search Warrant and Affidavit contained in Appendix

attendant to Appellants’ Brief in the Third Circuit Court of Appeals
hereinafter referred to as “Warrant and Affidavit”).

4. The Unsworn Declaration of Detective Wilson is contained
in Appendix attendant to Appellants’ Brief on appeal in the
Third Circuit Court of Appeals and hereinafter is referred to as
“Wilson declaration”.

5

County District Attorney’s Office with the execution of
a search warrant at the law office of Larry Wolf located at
215 Broadway, Hanover Borough, York County,
Pennsylvania. (Wilson declaration, 42). Wilson’s declaration
further attests to the fact that he had no involvement with
either the preparation of the search warrant and/or the
Affidavit or with the presentation of those documents to
District Justice Dubs. (Wilson declaration, 94). In accordance
with the search warrant issued by District Justice Dubs,
the Adams County District Attorney’s office requested that
Wilson obtain files pertaining to the Berwick Township
Municipal Authority from Attorney Wolf’s office computer.
Detective Wilson obtained nine files from the C Drive of the
office computer at the premises located at 215 Broadway,
Hanover, PA. (Wilson declaration, $5).

In Count I of the Complaint, Larry Wolf seeks damages
for alleged violations of his Fourth Amendment rights.
In Count II, Larry Wolf seeks damages for alleged violations
of due process and First Amendment rights pursuant to
42 U.S.C. § 1983. In Count III, Petitioners, O’Brien, Myers
and Hugger seek redress for deprivation of their Fourth
Amendment rights (malicious prosecution claim). In Count
IV, Myers, Hugger and O’Brien allege conspiracy to deprive
them of their due process rights. In Count V, all Plaintiffs
allege a state law civil conspiracy claim. The individual
Petitioners seek damages, including, but not limited to fees,
costs, attorney’s fees and such other relief as the District
Court deemed appropriate.

All Defendants/Respondents moved to dismiss the
Complaint pursuant to F.R.C.P. 12(b)(6). On November 13,
2000, the United States District Court for the Middle District
of Pennsylvania granted the Motions to Dismiss in their
entirety. On November 17, 2000, Plaintiffs/Appellants filed
a Notice of Appeal from that Order. On October 24, 2001,
the United States District Court of Appeals for the Third
Circuit affirmed the District Court’s Order dismissing

6

Plaintiffs/Petitioners’ Complaint in its entirety. Petitioners
then filed a Petition for Rehearing and for En Banc Rehearing,
which was denied on December 7, 2001 by the Third Circuit
Court of Appeals.

On January 22, 2002, Petitioners filed a Petition for a
Writ of Certiorari. Respondents, Robert L. Coleman, Michael
A. George, Alan Carey, Bernard A. Yannetti, Jr., Matthew J.
O’Brien, Kevin Wilson and Berwick Township now file this
Brief in Opposition to the Petition for Writ of Certiorari,
pursuant to Supreme Court Rule 15.

SUMMARY OF THE ARGUMENT

Plaintiffs/Petitioners, Larry Wolf, Peter Hugger, Fred S.
O’Brien and Maurice D. Myers instituted this purported
civil rights action against Robert L. Coleman, Adams County
District Attorney Michael A. George, Alan Carey,
Adams County Assistant District Attorney Bernard A.
Yannetti, Jr., Detective Kevin Wilson of the Borough of
Gettysburg Police Department, Adams County Detective
Matthew J. O’Brien and Berwick Township. Petitioners
alleged generally that the Defendants/Respondents conducted
an unlawful search of Larry Wolf’s law office (Count J);
that Defendants/Respondents refused to pay Wolf’s legal fees
for his work as a part-time Solicitor for the Berwick Township
Municipal Authority (Count II); and that Defendants/
Respondents engaged in the malicious prosecution
of the remaining Petitioners, O’Brien, Myers and Hugger
(Count III). In addition, Petitioners assert both federal and
supplemental state law claims for conspiracy (Counts IV
and V). All Defendants/Respondents moved to dismiss the
Complaint pursuant to F.R.C.P. 12(b)(6). On November 13,
2000, the United States District Court for the Middle District
of Pennsylvania granted the Motions to Dismiss in their
entirety. Similarly, on October 24, 2001, the United States

7

Court of Appeals for the Third Circuit affirmed the District
Court’s Order dismissing Plaintiffs/Petitioners’ Complaint
in its entirety.

Specifically, the District Court and the Court of Appeals
in its review, properly determined that Petitioner, Wolf failed
to state a claim for a Fourth Amendment violation based on
the alleged improper search of his office. There was no direct
attack on the validity of the applicable search warrant, nor
was there any allegation that the officer preparing the warrant
application deliberately falsified information or included
information in reckless disregard of its truth or falsity.

Similarly, the lower courts properly dismissed
Petitioners’ Complaint for failure to state a claim for a § 1983
conspiracy. Initially, a § 1983 conspiracy claim is not
actionable where this no actual § 1983 violation. In addition,
Petitioners’ Complaint failed to specifically allege the
necessary elements of a conspiracy.

The District Court and the Court of Appeals, in its review,
also properly dismissed Count II of the Complaint, in
which Mr. Wolf sought to recover unpaid professional fees.
Simply, there is no right to receive and/or recover professional
fees, which is guaranteed by the Constitution or a federal
law. In other words, Petitioners fail to allege a violation of a
protected property interest. Count II also fails to state a
First Amendment retaliation claim where Mr. Wolf failed to
demonstrate that his purported constitutionally protected
conduct was a “substantial” or “motivating factor” in the
alleged retaliation.

Petitioners, O’Brien, Myers and Hugger’s alleged
malicious prosecution claim based on the Fourth Amendment
and identified as Count III also was properly dismissed by
the District Court and Appellate Court, in its review,
where the Complaint failed to allege any pretrial deprivation
of their personal liberty worthy of protection afforded by the
Fourth Amendment.

8

Count IV of the Complaint, which purported to state
a cause of action for deprivation of due process and
First Amendment rights by Petitioners, O’Brien, Hugger and
Myers was similarly and properly dismissed. In this regard,
the District Court and Appellate Court, in its review, properly
determined that there was no discernable due process
violation and Plaintiffs failed to demonstrate that their alleged
protected activity was a substantial or motivating factor in
any alleged retaliation by Defendants. The District Court and
the Court of Appeals, in its review, properly exercised its
discretion in declining to exercise supplemental jurisdiction
over Plaintiffs’ supplemental state law claim for a civil
conspiracy.

Finally, the District Court and the Appellate Court,
in its review, properly determined that Respondents,
George and Wilson were entitled to immunity. Specifically,
Respondent, George, as Adams County District Attorney is
entitled to absolute prosecutorial immunity for his role in
prosecuting the violations of the Sunshine Act and
in his application for the relevant search warrant.
Similarly, Detective Wilson is entitled to qualified immunity
for his role in the search of Mr. Wolf’s office in that it is
clear that Wilson could have reasonably believed his conduct
did not violate Wolf’s rights.

Although Petitioners apparently contend that a Writ of
Certiorari should issue in this case because the District Court
and the Court of Appeals, in its review, somehow misapplied
the law on prosecutorial immunity and also apparently
departed from clearly established Third Circuit and United
States Supreme Court rulings, the District Court and the Third
Circuit, in its review, properly applied established rules of
law in this case, including employing the correct standards
of review. Petitioners have failed to identify any improper
or inaccurate statement of the relevant law utilized by the
lower courts, and/or have failed to demonstrate how, in fact,
any properly stated rule of law was misapplied in the instant

9

case. On this basis, Respondents respectfully request that
this Honorable Court deny the Petition for Writ of Certiorari,
thereby affirming the Court of Appeals’ Order granting
Respondents’ Motions to Dismiss.

REASONS FOR DENYING THE WRIT

Petitioners, Larry Wolf, Peter N. Hugger, Fred S. O’Brien
and Maurice D. Myers maintain that the Court of Appeals
erred in affirming the District Court’s Order granting
Respondents’ Motions to Dismiss in their entirety. Although
Petitioners have failed to include a summary of the argument
as required by Supreme Court Rule 24(h), Petitioners
apparently contend that a Writ of Certiorari should issue in
this case because the District Court, and the Court of Appeals
in its review, somehow misapplied the law on prosecutorial
immunity, and, also, apparently, “. .. departed from clearly
established Third Circuit and U.S Supreme Court
rulings ...” (Petition, pp. 5, 14). Petitioners also contend
that they sufficiently identified federally guaranteed rights,
which Respondents purportedly violated, particularly with
regard to Petitioners, Hugger, Matthew O’Brien and Myers’
First and Fourth Amendment rights. (Petition, p. 5).

The United States Court of Appeals, Third Circuit,
properly affirmed the District Court’s ruling dismissing
Plaintiffs’ Complaint in its entirety for failure to state a claim
upon which relief can be granted. Furthermore, the District
Court and the Court of Appeals, in its review, properly
determined that Defendant/Respondent, George is absolutely
immune for his role in regard to the search warrant and search,
and from Plaintiffs’ § 1983 claims of malicious prosecution.
Moreover, both Courts properly determined that Detective
Wilson is entitled to qualified immunity with regard to the
claims alleged in Count I of Plaintiffs’ Complaint relating to
the search of Mr. Wolf’s office. Additionally, the Third Circuit
properly applied established rules of law in this case,
including employing the correct standards of review. As such,

10

there is no basis, pursuant to Supreme Court Rule 10, upon
which to issue a Writ of Certiorari in the instant case.

A. LEGAL STANDARD

Petitioners repeatedly claim that the lower courts
somehow misapplied the proper standards of review in their
review of the dispositive motion below. While Petitioners
dispute the application of the standard of review in that its
application yielded the dismissal of their Complaint, it is
undisputed that the proper standards of review were employed
by both the District Court and the Appellate Court as set
forth below. Moreover, even a cursory reading of the
Opinions filed below demonstrates that both the District
Court and the Appellate Court applied properly stated rules
of law in their determination of the instant case.

Rule 12(b)(6) of the F.R.C.P. provides that a Defendant
may move to dismiss a Complaint for failure to state a claim
upon which relief can be granted. The Court must accept as
true all factual allegations set forth in the Complaint as well
as all reasonable inferences that can be drawn from them.
Nami v. Fauver, 82 F.2d 63, 65 (3d Cir. 1996). An action
should be dismissed pursuant to F.R.C.P. 12(b)(6) where it
is certain no relief could be granted under any set of facts
that could be proved. Markowitz v. Northeast Land Co.,
906 F.2d 100 (3d Cir. 1990). Generally, only allegations of
the Complaint, exhibits attached to the Complaint and matters
of public record are considered on a Motion to Dismiss;
however, a document appended to the Defendants’ Motion
to Dismiss may be considered if it is concededly authentic
and the Complaint is based on that document, thereby
preventing a Plaintiff from avoiding proper dismissal by
simply failing to attach to the Complaint a dispositive
document on which it relied. Pension Benefit Guaranty Corp.
v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196
(3d Cir. 1993) cert. denied, 510 U.S. 1042 (1994).

s

11

The standard of review for the Court of Appeals was
plenary. Nami v. Fauver, 82 F.3d at 65; Rose v. Bartle,
871 F.2d 331, 342 (3d Cir. 1989). On review of a dismissal
for failure to state a claim, the Court of Appeals must
determine whether Appellants are entitled to relief under any
reasonable reading of the pleadings, assuming the truth of
ali factual allegations in the Complaint, and all reasonable
inferences therefrom. Alexander v. Whitman, 114 F.3d 1392,
1398 (3d Cir. 1997); Martin v. Dana Corp., 114 F.3d 421,
423 (3d Cir. 1997).

B. THE SEARCH OF WOLPF’S OFFICE DID NOT
VIOLATE THE FOURTH AMENDMENT

In Count I, Petitioner, Wolf alleges that he was deprived
of his Fourth Amendment rights and also alleges a conspiracy
to deprive him of those rights. Specifically, Wolf alleges
that there was no probable cause to support the search
of his office. However, pursuant to 42 U.S.C. § 1983,
a Plaintiff must allege and prove that Defendants deprived
him of a right secured by the Constitution and laws of the
United States. Further, liability under § 1983, “. . . is personal
in nature and can only follow personal involvement in the
alleged wrongful conduct, shown through specific allegations
of personal direction or of actual knowledge and
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988).

Initially, although Wolf has brought this Count against
Defendant, Coleman, the Complaint is utterly devoid of any
factual allegation, which would implicate his participation
in the conduct of which Mr. Wolf complains. The only
allegation with regard to a deprivation of Mr. Wolf’s Fourth
Amendment rights attached to Mr. Coleman is that
Mr. Coleman knew of the plan to search attorney, Wolf’s
office and also allegedly tipped off the Press with regard to
the same. There is absolutely no allegation that Mr. Coleman

12

participated in providing information to a law enforcement
officer in order to assist in the preparation of a probable cause
affidavit and ultimately a search warrant for Wolf’s office.

The Complaint identifies only Defendants, Yannetti,
O’Brien and Wilson as the individuals who, in fact, searched
Wolf’s office. (Comp. at 928). Wolf alleges only that
Yannetti, an Assistant District Attorney was sent to search
Wolf’s office by District Attorney George. (Comp. at 429).
Moreover, although Wolf references the fact that his private
counsel, “. . . pointed out to Mr. George that the law clearly
demonstrated that the probable cause affidavit he had
prepared for the bogus search warrant used was baseless,”
there is absolutely no allegation that this was not a facially
valid warrant and/or that Mr. Yannetti and other officers were
aware that it was secured through purportedly bad
information.

Pursuant to Franks v. Delaware, 438 U.S. 154, 155-6
(1978), there is a two-part test to be satisfied by a Plaintiff
asserting a § 1983 claim which challenges the validity of a
search warrant on probable cause grounds. (App. 13a-14a).
The Plaintiff must prove by a preponderance of the evidence
the following:

(1) That the Affiant knowingly and deliberately,
or with a reckless disregard for the truth,
made false statements or omissions
that create a falsehood in applying for a
warrant; and

(2) That such statements or omissions are
material, or necessary, to the finding of
probable cause.

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)
(citations omitted).

There was no direct attack on the validity of this warrant,
nor was there any allegation that the officer preparing the

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13

warrant application, “... either deliberately falsified
information or included information in reckless disregard of
its truth or falsity.” See Franks v. Delaware, 438 U.S. 154,
165-6 (1978). As the District Court properly observed, Wolf
does not assert that the Affiant, Defendant, O’Brien made
any misrepresentations that were material to the finding of
probable cause. Rather, the Plaintiffs’, “... only specific
claim on this matter is that the ‘probable cause affidavit
[George] had prepared for the bogus search warrant used,
was baseless.’ ” (App. 14a-15a; Comp. at 47). The District
Court properly deemed this assertion baseless in and of itself.
(App. 15a).

In any case, even if Petitioners’ argument that Wolf's
actions did not establish a violation of the conflict of interest
laws were true, although such is denied by Respondents and
belied by the District Court’s analysis as set forth above,
such does not alter the Franks’ requirements to challenge an
affidavit of probable cause at the outset. Simply, as the Third
Circuit properly observed, “. .. Appellants failed to allege
O’Brien, the affiant, made any false statements,
misrepresentations, or omissions that were material or
necessary to the probable cause finding.” (App. 3a).

Since Petitioners’ Complaint failed to contain any such
allegation, the District Court, and the Third Circuit in its
review, properly determined that Petitioners’ failure to
comply with the Franks ' standard necessitated the dismissal
of this claim. (App. 3a, 15a). Petitioners have failed to
identify any improper or inaccurate rule of law utilized by
the lower courts, and/or to establish how, in fact, any properly
stated rule of law was misapplied in this instance. On this
basis, Respondents respectfully request that this Honorable
Court deny the Petition for Writ of Certiorari.

14

C. COUNT I OF PLAINTIFFS’ COMPLAINT
FAILS TO STATE A CLAIM FOR § 1983
CONSPIRACY

To state a claim for conspiracy for purposes of § 1983,
Plaintiffs must aver “a combination of two or more persons
to do a criminal act, or to do an unlawful act by unlawful
means or for an unlawful purpose.” Ammlung v. City of
Chester, 494 F.2d 811, 814 (3d Cir. 1974); Panayotides v.
Rabenold, 35 F. Supp. 2d 411 (E.D. Pa. 1999); Spencer v.
Steinman, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997).
Moreover, the allegations of the conspiracy must be
particularized to include:

(1) The period of the conspiracy;
(2) The object of the conspiracy; and

(3) Certain actions of the alleged conspirators
taken to achieve that purpose.

Labalokie v. Capital Area Intermediate Unit, 926 F. Supp.
503, 508-09 (M.D. Pa. 1996) (citations omitted). In the
context of a 12(b)(6) Motion, the Court in Panayotides noted
as follows:

Only allegations of conspiracy which are
particularized, such as those addressing the period
of the conspiracy, the object of the conspiracy, and
certain other actions of the alleged conspirators —
taken to achieve that purpose will be deemed
sufficient ... Dutton, 1997 WL 732856 at *2
(quoting, Rose v. Bartle, 871 F.2d 331, 366
(3d Cir. 1989) (internal citations omitted). Further,
“agreement” is the sine qua non of a conspiracy.
Spencer v. Stineman, 968 F. Supp. 1011, 1020
(E.D. Pa. 1997).

As outlined above, the Complaint is devoid of any facts
which indicate that Mr. Wolf’s Fourth Amendment rights

15

were violated in that there is absolutely no evidence of record
that anything other than a facially valid warrant was utilized
in this search. A § 1983 conspiracy claim is not actionable
where there is no actual § 1983 violation. Los Angeles v.
Heller, 475 U.S. 796, 106 S. Ct. 1571 (1986); Barkauskie v.
Indian River School District, 951 F. Supp. 519, 539
(D. Del. 1996). Further, even if Mr. Coleman “tipped off the
press”, which he specifically denies, such does not constitute
a criminal act or an unlawful act. The Complaint is devoid
of any facts, which establish the existence of a conspiracy or
indicate that there was any kind of an agreement between
any of the Defendants with regard to the search of Mr. Wolf’s
office. As the District Court properly determined,

Plaintiffs fail ... to allege sufficiently that
Defendants engaged in specific instances of
conduct based on an agreement or understanding
to deprive Plaintiffs of their constitutional rights.
Indeed, Plaintiffs made conclusory allegations of
conspiracy and, therefore, failed to present
sufficient facts to make out a § 1983 conspiracy
claim. Panayotides v. Rabenold, 35 F. Supp. 2d
411, 420 (E.D. Pa. 1999) (citations omitted).

For these reasons, the District Court and the Court of Appeals,
in its review, properly dismissed Wolf’s § 1983 conspiracy
claim. Petitioners have failed to provide any legitimate basis
upon which to grant their Petition for Writ of Certiorari.
As such, the Petition must be denied.

D. COUNT II FAILS TO STATE A CLAIM

In Count II, Plaintiff, Larry Wolf presumably seeks to
recover alleged “unpaid legal bills”, which are actually the
subject of a billing dispute, and apparently claims that his
due process and First Amendment rights were somehow
violated. .

16

Mr. Wolf’s claims to recover unpaid professional fees
fail to state a claim for a due process violation. Again, in
order to establish a prima facie case under § 1983, a Plaintiff
must show that Defendants acted under color of state law
and that they deprived Plaintiff of a right secured by the
Federal Constitution or federal law. Cuffeld v. Supreme Court
of Pa., 936 F. Supp. 266, 274 (E.D. Pa. 1996). Moreover, in
order to establish a substantive due process claim, a Plaintiff
must demonstrate that he or she has a property interest
protected/by the Fourteenth Amendment Due Process Clause.
Nicholas v. Pennsylvania State University, 227 F.3d 133,
139 (3d Cir. 2000) citing Woodwind Estates, Ltd. v.
Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000). In order to
state a substantive due process claim, “. . . a Plaintiff must
have been deprived of a particular quality of property
interest,” or an interest which is “fundamental” under the
United States Constitution. Nicholas, 227 F.2d at 140.
Fundamental property interests include those that are, “deeply
rooted in the Nation’s history and traditions”, or are “implicit
in the concept of ordered liberty like personal choice in
matters of marriage and family.” Woodwind Estates, 205 F.2d
at 142-143. Generally, state created property interests are
unworthy of substantive due process protection. Nicholas,
227 F.3d at 143.

Mr. Wolf’s alleged substantive due process claim in
Count II fails to implicate a fundamental property interest or
interest worthy of protection. See Independent Enterprises,
Inc. v. Pittsburgh Water & Sewer Authority, 103 F.3d 1165,
1179 (3d Cir. 1997) (where Court observed that only
fundamental property interests are worthy of substantive
due process protection). There is no right to receive and/or
recover professional fees, which is guaranteed by the
Constitution or a federal law and Plaintiff has not
alleged otherwise. Reich v. Beharry, 883 F.2d 239, 243-244
(3d Cir. 1989) (attorney’s interest in avoiding delay-in receipt
of payment for bill of professional services rendered in

17

prosecution of county controller was not entitled to
substantive due process protection). Rather, Mr. Wolf’s
claims are either in the nature of a breach of contract, some
type of conversion action or other state law claim. As the
Third Circuit observed, “. . . because Appellants do not allege
violations of protected property interests protected
by the Fourteenth Amendment - the threshold question in
any substantive due process claim — their claim with
regard to Wolf’s attorney fees was properly dismissed.”
(App. 4a (citations omitted)).

Mr. Wolf’s First Amendment claim, which is somehow
based on Defendants’ alleged refusal to pay attorney’s fees,
likewise fails to state a claim upon which relief can be
granted. It is axiomatic that there is no respondeat superior
liability under § 1983. Rizzo v. Goode, 423 U.S. 362, 377
(1978). Rather, as the Supreme Court held in Monell v. Dept.
of Social Services, 436 U.S. 658, 694 (1978), it is only,
“ _. when the execution of the government’s policy or
custom . . . inflicts the injury that the government as an entity
is responsible under § 1983.” As the Supreme Court observed:

Locating a “policy” insures that a municipality is
held liable only for those deprivations resulting
from the decision of its duly constituted legislative
body or of those officials whose acts may fairly
be said to be those of the municipality as well.

Board of the County Commissioner of Bryan County,
Oklahoma vy. Jill Brown, 520 U.S. 397, 117 S. Ct. 1382, 1388
(1997) (citations omitted). Mr. Wolf must also establish that
the alleged municipal action taken was with a reckless
degree of culpability and a direct causal link between the
municipal action and the deprivation of federal rights. Jd.
While Mr. Wolf has alleged an “objective” of Defendants,
there is no allegation of any specific Township policy, practice
or custom which directed or caused the deprivation of
any federally protected right, particularly a violation of any

18

First Amendment right. On this basis then, Count II fails to
state a claim upon which relief can be granted against
Berwick Township.

In addition, Count II fails to state a claim for any violation
of Petitioner, Wolf’s First Amendment rights pursuant to
42 U.S.C. § 1983. Initially, § 1983 requires state action.
Again, Plaintiffs’ Complaint is alleged in terms of
“objectives”. Beyond any allegation that certain individuals
had a political agenda, Plaintiffs have not alleged that
any official action was taken by any individual in their
official capacity.

Further, the Complaint does not state a claim for a
First Amendment retaliation claim. In order to establish a
§ 1983 First Amendment retaliation claim, the Plaintiff
has the burden of demonstrating that his or her,
“.. constitutionally protected conduct was a ‘substantial’
or ‘motivating factor’ in the relevant decision.” Nicholas,
227 F.3d at 144. Thereafter, the burden shifts to a Defendant
to show, “. . . by a preponderance of the evidence that it would
have reached the same decision even in the absence of the
protected conduct.” Nicholas, 227 F.2d at 144.

Count II fails to state a claim for First Amendment
retaliation where there is no allegation that whatever activity
Mr. Wolf was allegedly denied is a protected activity.
There is no allegation that the protected activity was a
substantial or motivating factor in any alleged retaliation.
Moreover, as the District Court observed, Mr. Wolf has not
asserted in Count II, “... any constitutionally protected
conduct or right that has been deprived by Defendants’ . . .
refusal to pay Wolf’s attorney’s fees ...” (App. 14a).
Count II of Plaintiffs’ Complaint fails to implicate the
First Amendment and, as such, fails to state a claim for either
a due process violation and/or a First Amendment violation
pursuant to 42 U.S.C. § 1983.

19

Similarly, any claim of conspiracy based on the
deprivation of those rights must fail where a § 1983
conspiracy claim is not actionable where there is no actual
§ 1983 violation. Los Angeles v. Heller, 475 U.S. 796,
106 S. Ct. 1571 (1986); Barkauskie v. Indian River School
District, 951 F. Supp. 519, 539 (D.E. Del. 1996).

For these reasons, the District Court and Court of Appeals
in its review properly dismissed Petitioners’ conspiracy
claims. Petitioners have failed to provide any legitimate
basis upon which to grant their Petition. As such, its must
be denied.

E. THE PROSECUTION OF THE BTMA
MEMBERS FOR VIOLATION OF THE
SUNSHINE ACT IS NOT A SEIZURE UNDER
THE FOURTH AMENDMENT

In Count III, Petitioners, O’Brien, Myers and Hugger
allege a malicious prosecution claim based on the
Fourth Amendment. Essentially, the Petitioners allege that
the violations of the Sunshine Act were brought against them
_ maliciously by Defendants purportedly in retaliation for the
Plaintiffs’ involvement with the BTMA. The United States
Supreme Court has determined that, “. . .aclaim of malicious
prosecution under § 1983 cannot be based on substantive
due process considerations, but instead must be based on a
provision of the Bill of Rights providing ‘an explicit textural
source of constitutional protection.’ ” Merkle v. Upper Dublin
School Dist., 211 F.3d 782, 792 (3¢-Cir. 2000) citing Albright
v. Oliver, 510 U.S. 266, 272, 114 S. Ct. 807 (1994).

Petitioners fail to set forth how prosecution for violation
of the Sunshine Act constitutes either malicious prosecution
or a seizure under the Fourth Amendment.

To establish a § 1983 claim for malicious prosecution,
the Petitioner must establish: (1) the elements of the common -

20

law tort; and (2) a violation of the Fourth Amendment.
The tort has the following elements:

a. The defendant initiated a criminal
proceeding;

b. The criminal proceeding ended in the
plaintiff’s favor;

c. The proceeding was initiated without
probable cause; and

d. The defendants acted maliciously or for a
purpose other than bringing the plaintiff to
justice.

Merkle v. Upper Dublin School District, 211 F.3d 783,
791 (3d Cir. 2000). See also Albright v. Oliver, 510 U.S. 266,
271 (1994) (petitioner must plead not only the elements

of the common law tort, but also a violation of the
Fourth Amendment).

Neither Petitioners’ brief, nor the Complaint; indicates
compliance with elements (b) and (c) above. Respondents
simply admit that the District Justice found “against the
aforementioned Petitioners.” (Petition, pp. 7-8).

Petitioners challenge the District and Appellate Courts’
decisions, which found that being prosecuted for Sunshine
Act Violations (which were later dismissed) was not a seizure.
(Petitici, p. 8). Petitioners contend that being forced to attend
a tr ~!, without more, is considered a “seizure” under
Third Circuit precedent; Petitioners are wrong, as the Court
in Merkle v. Upper Dublin School Dist., 211 F.3d 782,
792 (3d Cir. 2000), noted that whether malicious prosecution
is found to be a seizure, depends upon whether the
“petitioner’s liberty ‘was constrained in multiple ways for
an extended period of time.’ ” Jd. at 792, citing Gallo v. City
of Philadelphia, 161 F.3d 217, 225 (3d Cir. 1998).
The restrictions on plaintiff’s liberty in Gallo consisted of

21

the following: “he had to post a $10,000 bond; he had to
attend all Court hearings, including his trial and arraignment;
he was required to contact Pre-Trial Services on a weekly
basis and he was prohibited from traveling outside of
New Jersey and, Pennsylvania.” 161 F.3d at 222. Even though
the restrictions in Gallo were much more onerous
than anything pled in the present case, the Court still held
that whether such restrictions amounted to a seizure was
“a close question . . .” Jd.

Petitioners’ Complaint alleges no constraint of liberty
sufficient to constitute a seizure and Petitioners’ brief _
misstates the Third Circuit precedent on this issue. As such,
the Third Circuit Court opinion dismissing this claim must
be affirmed.

In addition, as argued above, the Township cannot be
liable under § 1983 without a policy, practice or custom
identified as the moving force behind the alleged deprivation
of a federally protected right. Monell, 436 U.S. at 694.
On this basis, Plaintiffs’ Complaint also fails. Similarly,
any conspiracy claim based on the alleged deprivation of
the Fourth Amendment right likewise fails. Barkauskie,
951 F. Supp. at 539.

F. COUNT IV FAILS TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED

Presumably, Count IV of Plaintiffs’ Complaint attempts
to state a cause of action for deprivation of due process and
First Amendment rights. Specifically, Plaintiffs, O’Brien,
Hugger and Myers claim that they were retaliated against
somehow with regard to the BTMA and the aforementioned
sewer project. Initially, this Count again fails to state a claim
against the Township since Plaintiffs have failed to allege
and/or identify any specific policy, practice or custom which
was the moving force behind the alleged deprivation of
these rights. Monell, 436 U.S. at 694.

22

With regard to the alleged deprivation of a due process
right, there is no discernible alleged due process violation.
For instance, there is no allegation that Plaintiffs were deprived
of property without due process of law. There is no allegation
that Plaintiffs were improperly removed from office. Indeed,
Plaintiffs apparently were afforded hearings on the Sunshine
Act violations and any action with regard to the disputed sewer
project was done pursuant to a legal mandamus action. (Comp.
at 919). Plaintiffs do not, therefore, apparently claim a due
process violation as a result of these hearings.

Plaintiffs have not alleged that their liberty interests have
been deprived in any way; for instance, Plaintiffs have not
alleged any claim for defamation.

To the extent that Plaintiffs allege a substantive due process
claim purportedly grounded in their Fourth Amendment
malicious prosecution claim, such is not viable. As outlined
above, a § 1983 malicious prosecution claim cannot be based
on a violation of substantive due process. Merkle v. Upper
Dublin School Dist., 211 F.3d 782, 792 (3d Cir. 2000). Rather, —
“. .. where a particular amendment provides an explicit textural
source of constitutional protection against a particular sort of
government behavior, that amendment, not the more generalized
notion of substantive due process must be the guide for analyzing
these claims.” Torres v. McLaughlin, 163 F.3d 169, 172 (3d Cir.
1998) (internal quotations omitted).There is no viable claim for
an alleged procedural or substantive due process violation.
As such, the District Court and the Court of Appeals, in its
review, properly dismissed Count IV of Plaintiffs’ Complaint
on this basis.

With regard to the alleged § 1983 First Amendment
retaliation claim, Plaintiffs’ Complaint again fails to allege any
constitutionally protected behavior, which has been deprived
by the Defendants. There is absolutely no allegation that the
alleged protected activity was a substantial or motivating factor
in any alleged retaliation claim. See Mt. Healthy City School

23

District Board of Education v. Doyle, 429 U.S. 274, 287 (1977);
Nicholas, 227 F.3d at 144.

Similarly, for the reasons stated above, a § 1983 conspiracy
must be based on a § 1983 violation. Since Count IV fails to
state a claim, any conspiracy claim based on the same likewise
fails. Accordingly, the lower Courts properly determined that
Plaintiffs failed to state a claim upon which relief could be
granted for any alleged due process or First Amendment
violation in Count IV of their Complaint. These Orders must be
affirmed.

G. DISTRICT ATTORNEY GEORGE IS ENTITLED
TO ABSOLUTE IMMUNITY

District Attorney George is entitled to absolute immunity
for his involvement in permitting the application for the search
warrant and in prosecuting Petitioners for violation of the
Sunshine Act.

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme
Court held that prosecutors enjoy absolute immunity from
civil damages under § 1983 for their conduct in “initiating
a prosecution and in presenting the State’s case.” Jd. at 431.
The preparation and filing of support information for a warrant
and the determination that the evidence is sufficient to justify a
probable cause finding are all protected by absolute immunity.
Kalina v. Fletcher, 118 S. Ct. 502, 505, 510 (1997).°

5. While Petitioners rely on CPC v. State Ethics Commission,
698 A.2d 155 (Pa. Cmwith. 1997), presumably for the proposition
that the State Ethics law was inapplicable to Attorney Wolf, the fact
remains, as purportedly alleged, that D.A. George, who enjoys
absolute immunity, made the decision to initiate prosecution and to
prepare and to file support information for a warrant, and also made
the determination that the facts at bar were sufficient to satisfy
probable cause. These functions are all protected by absolute
immunity. Kalina v. Fletcher, 118 S. Ct. at 505, 510.

24

District Attorney George also enjoys immunity for
prosecuting Petitioners for violating the Sunshine Act,
as prosecutorial immunity covers “the professional evaluation
of the evidence assembled by the police and appropriate
preparation ... at trial ...” Buckley v. Fitzsimmons, 113
S. Ct. 2606, 2615 (1993); Burns v. Reed, 500 U.S. 478,
492 (1991). Such immunity covers a prosecutor’s decision
regarding which cases to file, Elder v. Athens Clarke County,
54 F.3d 694, 695 (11th Cir. 1995), and whether to prosecute
at all. Roe v. San Francisco, 109 F.3d 578, 583 (9th Cir. 1997).
It also protects a prosecutor’s request that “the Court enter
an Order of nolle pros equi . . .” Brooks v. George County,
84 F.3d 157, 168 (Sth Cir.) cert. denied, 117 S. Ct. 359 (1997).

In Petitioners effort to cast District Attorney George’s
role in the prosecution of the Sunshine Act or preparation of
the search warrant as “investigatory,” they misstate the
facts pled in the Complaint. For example, Petitioner’s
brief states: “George prepared a search warrant application
[Affidavit] for O’Brien that alleged that Wolf was covered
by the Ethics Act when he knew he was not.” (Petition, p. 7).
Petitioners also state “Mr. George prepared the search warrant
application and had O’Brien sign it. He did the purported
investigation and he applied for the search warrant.” Jd. at 8.
Finally, Petitioners state that District Attorney George “didn’t
wear his D.A. hat to prosecute this Complaint — he acted as
a lawyer [though Petitioners note] . .. the record [on this
point] is perhaps at best, ambiguous .. .” /d. at 8-9.

Petitioners’ claim regarding George’s role in either the
search warrant or Sunshine Act prosecution is not supported
by any section of the Complaint. In fact, the District Court
noted that the Affidavit of Probable Cause was not prepared
or signed by District Attorney George, but in fact
was prepared by Detective O’Brien. (App. 17a-18a).
Further, George’s role in the Sunshine Act violation was to
prosecute — something afforded immunity, notwithstanding

25

Petitioner’s effort to ascribe some nefarious role to the
prosecution. Thus, George is absolutely immune from all
claims related to the search warrant. The District and
Appellate Courts’ ruling in this regard must be affirmed.

H. THE INDIVIDUAL RESPONDENTS ARE
ENTITLED TO QUALIFIED IMMUNITY

The District Court and the Third Circuit properly
concluded that the Respondents are entitled to qualified
immunity from the Petitioners’ claims. In Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982), the Court created an
objective reasonableness test for analyzing the qualified
immunity defense. The Court held in Harlow that
“government officials performing discretionary functions,
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights on which a reasonable person would
have known.” Jd. The qualified immunity inquiry focuses.
on whether a reasonable governmental official could
believe that his conduct was lawful, in light of clearly
established law and the information in the official’s
possession. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
This Court has also noted that the qualified immunity defense
“gives ample room for mistaken judgments” and provides
ample protection to “all but the plainly incompetent or those
who knowingly violate the law.” Malley v. Briggs, 475 US.
335, 341-343 (1986); Hunter v. Bryant, 502 U.S. 224,
227 (1991).

Although the issue is often addressed on summary
judgment, “qualified immunity questions” should be
resolved at the earliest possible stage of the litigation.
Anderson, 483 U.S. at 646, n.6. Thus, if the wrongful conduct
alleged is that which a reasonable official could have believed
lawful, dismissal is appropriate before discovery. See, Id.

26

In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001),
this Honorable Court refined the qualified immunity standard.
As a threshold matter, the District Court must consider
whether the facts alleged, taken in the light most favorable
to the party asserting the injury, show that the official’s
conduct violated a constitutional right. Jd., 121 S. Ct. at 2155.
If the allegations do not establish the violation of a
constitutional right, then the governmental official is éntitled
to qualified immunity. /d. at 2156.

After a careful réview of the record, both the
District Court and the Third Circuit concluded that Plaintiffs’
Complaint had not alleged any cognizable constitutional
claims. Both the District Court and the Third Circuit
concluded that Plaintiffs were not entitled to any relief on
the § 1983 claims arising out of: the refusal to pay Petitioner
Wolf’s legal fees; the search of Petitioner Wolf’s law office;
the prosecution of Petitioners O’Brien, Meyers and Hugger
for violation of the Sunshine Act; Petitioners’ substantive
due process claims; and the § 1983 conspiracy claims.
Clearly, the courts below applied the correct legal standard
in evaluating the qualified immunity defense and properly
concluded that Plaintiffs had not alleged any facts
establishing that the Respondents’ actions deprived them of
any federally protected right.

Petitioners’ claims against Respondent Wilson arise
solely out of the execution of the search warrant at Attorney
Wolf’s office on May 22, 1998. In the proceedings below,
Respondent Wilson maintained that he was immune from
liability as a matter of law because his sole involvement in
this case was the participation in the execution of a facially
val d search warrant which was approved by the Adams
County District Attorney’s office and by District Justice Dubs,
a detached and neutral magistrate.

In United States v. Leon, 468 U.S. 897 (1984), the court
held that inadequate probable cause does noi necessarily

27

render a warrant facially invalid nor prevent reasonable
belief in the existence of probable cause. Moreover,
Leon emphasized that generally an officer cannot be expected
to question the Magistrate’s probable cause determination.
Respondent Wilson was not the affiant on the probable cause
affidavit but merely executed the search warrant approved
by the District Justice. Under these circumstances, the courts
below properly concluded that Respondent Wilson was
immune from liability as a matter of law on Petitioners’
Fourth Amendment claims.

In their Petition for Writ of Certiorari, Petitioners assert
that the Third Circuit Panel had to address and consider the
holdings in Wilson v. Layne, 526 U.S. 603 (1999)
and Hanlon v. Berger, 526 U.S. 808 (1999). Both of those
cases address the issue of whether media involvement in the
execution of a search warrant implicates the Fourth
Amendment. Plaintiffs’ reliance on Wilson and Hanlon,
however, is misplaced. It is important to note that the search
warrant at issue in this case was executed on May 22, 1998,
which was prior to the Court’s rulings in Wilson and Hanlon
in 1999. Petitioners have not, and cannot cite to any case
law decided prior to May, 1998 in which it held that media
involvement in the execution of a search warrant violated
the Fourth Amendment. Since the law was not clearly
established at the time the Respondents executed the search
warrant, qualified immunity applies.

28

CONCLUSION

For all the foregoing reasons, Respondents respectfully
request that this Court deny Petitioners Petition for a Writ of

Certiorari.
Respectfully submitted,
James D. YOUNG ANTHONY R. SHERR
LAVERY, FAHERTY, YOUNG Counsel of Record
& Patterson, P.C. Lori J. MILLER
225 Market Street Mayers, Mennies & SHERR, LLP
Suite 304 3031 Walton Rd.
P.O. Box 1245 Bidg. A, Suite 330
Harrisburg, PA 17108-1245 P.O. Box 1547
(717) 233-6633 Blue Bell, PA 19422-0440
Attorney for Respondent (610) 825-0300
Kevin Wilson Attorneys for Respondents
Robert L. Coleman, Alan Carey
and Berwick Township
Davip KARAMESSINIS
Devin & DEVINE
100 W. Elm Street
Suite 200
Conshohocken, PA 19428
~ (610) 397-4635
— Attorney for Respondents

Michael A. George,
Bernard A. Yannetti, Jr.
and Matthew J. O’Brien

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1156%3A2. Public record. Not legal advice.