Appendix — North Belle Vernon Borough v. Livingstone

APP IX

TABLE OF CONTENTS

Opinion filed 7/31/96 by United States Court

of Appeals for the Thrid Circuit ...............-.. 1A

Order amending slip Opinion ................+-+4-- 47A

Order denying plaintiffs’ Motion for New Trial

and/or Judgment Notwithstanding the Verdict ....... S1A

Order granting defendants’ Motions for

Partial Summary Judgment filed 1/27/95 ........... 52A

Opinion in Support of Order granting

Partial Summary Judgment ............ccccceees 54A

Report and Recommendation filed 6/8/94 .......... 60A

Opinion filed 12/13/93 by United States Court

of Appeals for the Third Circuit,en banc .......... TTA

Order filed 4/24/92 granting Summary Judgment ..... 99A

Report and Recommendation filed 4/8/92 ......... 101A

Tramectipt GHCOTpt = COMUGUG oc tc cece csesess 110A

Affidavit of Jack R. Heneks, Jr., Esquire .......... 116A

Filed July 31, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-3252

FRANCES E. LIVINGSTONE and JOSEPH A.

LIVINGSTONE, her husband,

Appellants

Vv.

NORTH BELLE VERNON BOROUGH; FAYETTE CITY

i BOROUGH; WASHINGTON TOWNSHIP; FRANK E.

: MONACK, JR., individually and in his capacity as officer

i of WASHINGTON TOWNSHIP; OFFICER RAYMOND

MOODY, individually and in his capacity as officer for

FAYETTE CITY BOROUGH; OFFICER DARHL SNYDER,

individually and in his capacity as an officer for NORTH

BELLE VERNON BOROUGH

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. No. 91-00059

Argued January 25, 1996

. Before: COWEN and SAROKIN, Circuit Judges and

) POLLAK, District Judge*

| (Filed July 31, 1996)

*.Honorable Louis H. Pollak. United States District Judge for the Eastern

District of Pennsylvania, sitting by designation.

Pee TUE

oo §

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Peter M. Suwak (argued)

Post Office Box #1

Washington, PA 15301

Attorney for Appellants

Thomas P. McGinnis

Dara A. DeCourcy (argued)

Zimmer Kunz, P.C.

3300 USX Tower

Pittsburgh, PA 15219

John W. Jordan, IV

Gaca, Matis & Hamilton

Four PPG Place, Suite 300

Pittsburgh, PA 15222

Attorneys for Borough of North

Belle Vernon and Darhl Snyder

Simon B. John

John & John

96 East Main Street

Uniontown, PA 15401

Attorney for Borough of Fayette

City and Raymond Moody

Albert C. Gaudio

513 Schoonmaker Avenue

Monessen, PA 15062

Attorney for Washington Township

Timothy M. Maatta

513 Schoonmaker Avenue

Monessen, PA 15062

Attorney for Frank E. Monack, Jr.

OPINION OF THE COURT

POLLAK, District Judge.

This is the second time that this matter has come before

this court.

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Appellants Frances and Joseph Livingstone commenced

this civil ts suit, pursuant to 42 U.S.C. § 1983, in

January, 1991 against defendants North Belle Vernon

Borough, Fayette City Borough, Washington Township,

Officer Darhl Snyder, Officer Raymond Moody, and Officer

Frank E. Monack. The defendants moved for summary

es ya asserting that the cn cote claims were

by an agreement said to have made in 1990 in

which the Livingstones waived any civil claims in exchange

for the termination of a criminal prosecution of Frances

Livingstone. (Agreements like this one, in which a criminal

defendant waives potential civil claims in exchange for the

dismissal of the case against her, are called “release-

dismissal agreements.”)

The district court granted summary judgment in favor of

the defendants. In Livingstone v. North Belle Vernon

Borough, 12 F.3d 1205 (3d Cir. 1993) (in banc) (“Livingstone

r), this court reversed, finding that there was a genuine

issue of material fact as to whether the Livingstones had

concluded the release-dismissal agreement voluntarily. 12

F.3d at 1214. In that opinion, we also observed that the

ent raised a number of other possible legal

questions, including whether its enforcement would be in

the public interest and whether it was invalidated by the

municipalities’ failure to formally ratify it.

On remand, the district court granted partial summary

judgment in favor of the defendants as to the latter two

questions, finding that the agreement's enforcement would

be in the public interest and that no formal ratification was

necessary. The district court then conducted a jury trial

devoted to the single question whether the Livingstones had

concluded the release-dismissal agreement voluntarily. The

jury found that the Livingstones did indeed voluntarily

conclude the release-dismissal agreement. Accord , the

district court ordered that judgment be entered in favor of

the defendants and against the Livingstones as to all of the

Livingstones’ claims. This appeal followed.

I. Factual Background and Procedural History

A. Livingstone I.

In Livingstone I, we compendiously summarized this

case’s elaborate factual and procedural history. It seems

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efficient to reproduce that summary here verbatim. (Except

as noted, all footnotes and all emendations are from

Livingstone I.)

This civil suit filed by Frances me Joseph

stone against the police officers and

maton ove arose from the conduct of the police

officers on the night of January 12-13, 1989, at the

Livingstone home in Washington Township,

Pennsylvania. During a family argument between Carrie

Livingstone, age twenty-two, who was unmarried and

living at her parents’ home with her fourteen-month-old

son, and Joseph, her father, Mr. stone struck

Carrie on the al causing her lip to a" t and bleed.

Carrie ran out of the house and to the community

ambulance service across the street, where an employee

called the police. When Officer Frank Monack arrived,

Carrie told him that her father had struck her and that

her parents were holding her son without her consent.

Monack, who was at that time an officer in the

Washington Township Police Department and is now

Chief of Police, radioed for assistance pursuant to an

the North Belle Vernon Police Department, responded.

against him arising out of the incident. Following a

brief discussion, Monack and Snyder accompanied Mr.

Livingstone outside, and Monack told him to go to the

nearby police station to make a statement.’ No charges

were filed against Mr. Livingstone that evening or at

any later time.

Monack and Snyder then reentered the Livingstone

household, this time in search of Carrie’s son and

admittedly without a warrant or court order Mrs.

1. The parties dispute whether Monack also told Mr. Livingstone he was

under arrest.

2. There is some dispute as to Moody's whereabouts.

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Livingstone had retreated to the back bedroom with her

grandson, and had locked and barricaded the door.

When she refused to open the door, Monack picked the

lock and then tried to push the door open. From the

partially opened door, Mrs. Livingstone hit him with a

fishing rod and scratched him. Monack and Snyder

broke the door down to enter the room, and then

Monack told Mrs. Livingstone she was under arrest.

Mrs. Livingstone testified that both men struck her,

causing her to lose consciousness and sustain bruises,

lacerations, lost teeth, and head injuries. According to

defendants, they used force only for the purpose of

getting handcuffs on her after she struck the officer,

and a stun gun to subdue her because she was

screaming and kicking. Snyder held her down while

Monack used the gun. Mrs. Livingstone claims that

Monack then said “you want a thrill, Pll give you a

thrill” and applied the stun gun between her legs. A

medical examination conducted at the hospital that

night notes a burn in the vulval area.

The officers removed Mrs. Livingstone, handcuffed,

from the house. She states that they dragged her

outside and dropped her several times, banging her

head, and then left her lying in cold muddy water for

hours. The officers claim that her thrashing caused

them all to fall, and that she refused to get up.

On January 13, 1989, the morning after the

altercation, Mrs. Livingstone was charged by Monack,

on behalf of the Washington Township Police

Department, . with disorderly conduct, aggravated

assault, terroristic threats, resisting arrest, and

interference with custody. At a preliminary hearing on

April 18, 1989, Mrs. Livingstone was held over for a

jury trial on all but the terroristic threats charge, and

the ageravated assault charge was reduced to simple

assault.

The trial in Fayette County Court of Common Pleas

began on February 13, 1990, with attorney Thomas R.

Ceraso representing Frances Livingstone and Jack R.

Heneks, Jr., an Assistant District Attorney,

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representing the Commonwealth of Pennsylvania.

Carrie Livingstone testified for the prosecution, followed

by Monack, Snyder, Moody, Police Chief Robert

Matthews of Washington Township, and Evelyn Rehe of

the community ambulance service. The Commonwealth

rested, and Mrs. Livingstone demurred to all of the

a. The demurrer was ted on the charge of

interference with custody on the ground that there were

no facts showing danger to the child, but was denied as

to the other charges.

Thereafter, Joseph Livingstone and his son, James,

testified for the defense. Before Mrs. Livingstone was to

take the stand (and presumably would have testified

about her claims with regard to police use of a stun

gun on her private parts), the trial judge, Judge

Cicchetti of the Court of Common Pleas, met with

Heneks and Ceraso to discuss whether the matter

could be resolved.’ After settlement negotiations, a

conference was held in camera with Judge Cicchetti.

Present were Moody, Monack, Matthews (now

deceased), the Livingstones, Ceraso, and Heneks.

Ceraso summarized the arrangement by stating that

the defense would move for a judgment of acquittal

after James Livingstone finished his testimony; that

expenses for the physical damage to the Livingstone

house and for Mrs. Livingstone’s reasonable medical

care would be paid; and that once those bills were paid,

the Livingstones would release any civil claims. Ceraso

stated on the record:

there will be an agreement on the part of my client,

Mrs. Livingston[e], and also her husband, Joe

Livingstonje], who is present, that upon payment of

reasonable medical bills that wiejre associated with

the incident that occurred, based on my forwarding

S. Plaintiffs aseert that the Commonwealth initiated settlement

negotiations, but Heneks tn his affidavit states that it was the trial judge

who instigated the settlement discussions. We do not find this a material

dispute. The effect of the agreement “is not dependent upon which party

first suggests the release. . . .” Boyd v. Adams, 513 F.2d 83, 88 (7th

Cir. 1975).

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those to Washington Township with confirmation,

together with bills reflecting damage incurred at the

household of Mr. and Mrs. Livingstonfe], that

Washington Township will cause the same to be

paid. At the time of final payment of those bills, there

will be a full and complete release signed with

reference to any civil action on the part of Mr. and

Mrs. Livingston|e]. It’s also my understanding that at

that time there will also be a release signed by

Washington Township, or any of its proper officials,

or any member of the police force necessary to

release Mr. and Mrs. Livingston{e] from any liability

App. at 1109.

In response to the judge's inquiry, the parties voiced

an expression of assent. The court asked whether “you

all think this is in the best interest for everyone” and

Matthews, Monack, and Heneks said they did. App. at

1112. When they returned to the courtroom, Ceraso

moved for a judgment of acquittal on the criminal

charges against Mrs. Livingstone, which the court

granted.

It is undisputed that the settlement agreement was

never reduced to writing. The Livingstones never

submitted for payment any medical bills or household

repair bills, and no payments have been made. The

Board of Supervisors of Washington Township took no

action to officially ratify the agreement until almost two

years after the conference in chambers, and only then

after this sult was started.‘ There is no evidence that

the other two municipal defendants, North Belle Vernon

Borough and Fayette City Borough, have ever taken

any action to ratify any putative settlement.

4. There was testimony that on the day of the settlement, two of the

three members of Washington Township's Board of Supervisors were in

the courthouse, were informed of the agreement, assented to it. and later

telephoned the third supervisor, who also agreed. Washington Township

has attached to its brief a document showing an official ratification by its

Board of Supervisors in February 1992, after this suit was filed.

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On January 14, 1991, almost a year after the

criminal trial, the Livingstones filed this action against

the police officers and the three employer

municipalities. The complaint consisted of seven

claims: a federal claim filed pursuant to 42 U.S.C.

§ 1983 (1988), and state law claims alleging assault

and battery, malicious prosecution, malicious abuse of

process, invasion of privacy, intentional infliction of

emotional distress, and conversion.

The defendants filed motions to dismiss or, in the

alternative, for summary judgment. The district court

referred the case to a magistrate Judge, who ordered the

parties to engage in discovery [footnote omitted] and to

submit briefs and materials in support of the motions.

In their briefs in support of summary judgment,

defendants argued that the suit was barred by the

release-dismissal agreement reached during the in

camera conference before Judge Cicchetti. The

their rights to sue, poin out that the agreement was

never reduced to ror i and that Washington

Township never made the contemplated payments.

They also contended that the agreement was never

properly entered into by the municipalities, as the

Washington Township Board of Supervisors never

formally approved it and the other boroughs’ governing

bodies never considered it, and that the agreement was

invalid and unenforceable under Pennsylvania law.

On April 8, 1992, the magistrate judge submitted a

Report and Recommendation recommending that

summary judgment be granted for the defendants on

the basis of the release-dismissal agreement. Although

the court acknowledged that Washington Township

may not have formally approved the ent, it noted

thereby satisfying Pennsylvania law. Without comment

on the absence of the other municipalities and officers

from the ~ esa peo the magistrate judge concluded

that plaintifis had contracted with all of the defendants,

and thus the plaintiffs’ civil suit was barred: that the

agreement comported with due process because the

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plaintiffs understood that they were waiving their rights

to assert future civil claims and had entered into the

release voluntarily; and that there was sufficient

consideration because the plaintiffs, in exchange for the

surrender of their potential civil claims, had secured

the dismissal of the criminal charges and a promise by

the defendants not to sue them.

Objections were filed but the district court adopted

the magistrate judge's opinion as its own and granted

summary judgment for all defendants. This timely

appeal followed.

Livingstone I, 12 F.3d at 1206-09.

With this background history as predicate, the court in

Livingstone I then proceeded to review the elements of proof

for a showing of voluntariness, finding that the parties

seeking to enforce the release-dismissal agreement bore the

burden of showing that the Livingstones’ assent was

“voluntary, deliberate and informed.” 12 F.3d at 1211. We

concluded that the defendants had not met this burden

with the certainty called for on summary judgment, given

that Mrs. Livingstone was confused as to the terms of the

release-dismissal arrangement, that the claimed release-

dismissal agreement was never written down, and that the

asserted agreement -assuming there was a meeting of the

minds-was made, if at all, during a brief and ambiguous

oral colloquy. See id. at 1211-14. Accordingly, we reversed

the grant of summary judgment and directed that the case

be remanded for further proceedings.

B. Post-Livingstone I Proceedings

Following remand, the defendants filed a motion for

summary judgment challenging the Livingstones’ complaint

on a variety of grounds other than the release-dismissal

agreement. Their motions were referred to a magistrate

judge, whose Report and Recommendation (“R&R”) the

district court then adopted without substantive comment.

In accordance with the recommendations of the magistrate

judge, the district court ordered that (1) summary judgment

be entered in favor of all defendants as to the Livingstones’

claims of malicious prosecution, abuse of process, and

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invasion of privacy;® and (2) summary judgment be entered

in favor of Officer Moody as to the assault and battery

claims. The district court denied summary peeomt as to

the Livingstones’ constitutional claims, their claims of

assault and battery against Officers Monack and Snyder,

their claim of intentional infliction of emotional distress,

and their conversion claim. App. at 326, 352.

The Livingstones then filed a motion for partial summary

judgment renewing two arguments that they had already

unsuccessfully made to the district court in the first round

of the litigation. These arguments were that the release-

dismissal agreement was unenforceable because (a) the

municipalities had not ratified it, as (assertedly) required by

Pennsylvania law, and (b) the release-dismissal agreement

had been concluded in a manner which violated “the

Pennsylvania Rules of Criminal Procedure and public

policy.” App. at 355.° The defendants responded with cross-

motions for partial] summary judgment that asserted that

no ratification was necessary, because the Livingstones had

failed to submit their medical bills to Washington Township

for payment. The district court granted summary judgment

in favor of the defendants on both the ratification question

and the public-interest question.

The district court then conducted a jury trial limited to

one question, whether the Livingstones voluntarily entered

into the release-dismissal agreement. After several days of

trial, including extended testimony by Thomas R. Ceraso

(Mrs. Livingstone’s lawyer at her criminal trial), the jury

found that the Livingstones did indeed enter into the

agreement voluntarily. Accordingly, the district court

entered judgment in favor of the defendants and against the

5. The R&R found that summary judgment should be granted as to the

malicious prosecution claim because, as the underlying prosecution had

ended with a compromise, it had not terminated favorably to Mrs.

Livingstone. The R&R does not indicate whether this finding assumes the

existence and validity of the release-dismissal agreement that is now

before us, or — if it does not so assume — what the basis is for the

finding that a compromise occurred.

6. It is customary to refer to “the public interest,” rather than to “public

policy,” in discussing the enforceability of release-dismissal agreements.

and this opinion will use the former terminology.

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Livingstones. The Livingstones moved for a new trial, for

judgment notwithstanding the verdict, and to amend the

court's judgment to require Was n Township to pay

household damages and medical bills to the Livingstones

(apparently in order to enforce the terms of the release-

dismissal agreement). These motions were denied, and this

appeal followed.

On appeal, the Livingstones assert that the district court

(1) erred in finding t the agreement was valid and

enforceable even though the municipalities had not ratified

it; (2) erred in ruling that the enforcement of the agreement

was in the public interest as a matter of law; and (3) made

a number of errors at the voluntariness proceeding.’ We

will discuss these questions in that order.

As to the second and third of these arguments, the

district court, appellants, and appellees all assume that

identical legal standards govern the enforcement of the

release-dismissal agreement as to the Livingstones’ section

1983 claims and as to their state-law claims. However, as

we suggested in Livingstone I, see 12 F.3d at 1209 n.6, this

is not necessarily the case. Federal common law governs

the enforceability of the release-dismissal agreement as to

the Livingstones’ section 1983 claims, while we must look

to Pennsylvania law to assess the enforceability of the

agreement as to their state-law claims. Thus, the legal

standards applicable to the Livingstones’ state-law claims

will be discussed separately.

Ul. Jurisdiction and Standard of Review

We have appellate jurisdiction pursuant to 28 U.S.C.

§ 1291. As to the municipal ratification and public-interest

with the

appropriate to order that Washington Township pay the Livingstones’

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questions, on which the district court granted summary

judgment, our review is plenary. See _ Erie

Telecommunications Inc. v. City of Evie, 853 F.2d 1084,

1093 (3d Cir. 1988). The appellants also assert that, at the

voluntariness proceeding, the district court (1) gave an

incorrect jury instruction, (2) erred in declining to give a

requested jury instruction, and (3) made a number of

incorrect evidentiary rulings. To the extent that appellants

claim that a jury instruction failed to state the proper legal

standard, our review is plenary. See Government of Virgin

Islands v. Isaac, 50 F.3d 1175, 1180 (Sd Cir. 1995). To the

extent that appellants contest the district court's refusal to

give particular jury instructions, our review is for abuse of

discretion. See id. The evidentiary rulings that the

appellants challenge are all discretionary s of the type

that we review for abuse of discretion. This includes rulings

as to the relevance of evidence and as to its prejudicial

effect, see In re Japanese Electronic Products, 723 F.2d 238,

257, 260 (3d Cir. 1983), rev'd on other grounds, sub nom.

Matsushita Electrical Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986), and as to waiver of the attorney-client

privilege, see United States v. Bilzerian, 926 F.2d 1285,

1293 (2d Cir. 1991).

Tl. Municipal Ratification

The terms of the alleged release-dismissal agreement, as

recited by Ceraso, were that:

there will be an agreement on the part of my client,

Mrs. Livingston{fe], and also her husband, Joe

Livingston[e], who is present, that upon payment of

reasonable medical bills that wie]re associated with the

incident that occurred, based on my forwarding those

_ to Washington Township with confirmation, together

with bills reflecting damage incurred at the household

of Mr. and Mrs. Livingston{e], that Washington

Township will cause the same to be paid. At the time

of final payment of those bills, there will be a full and

complete release signed with reference to any civil

action on the part of Mr. and Mrs. Livingstonle]. It's

also my understanding that at that time there will also

be a release signed by Washington Township, or any of

its proper officials, or any member of the police force

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necessary to release Mr. and Mrs. Livingstonle] from

any Hiability.... |

Appellees North Belle Vernon Borough and Officer Darhl

Snyder's App. at 30. In short, the arrangement was

apparently that, after the prosecution of Mrs. stone

was terminated, the Livingstones would submit bills for

property damage and for medical costs to Washington

Township. Once the Township paid these bills, the

stones, the municipalities, and the police officers

would then sign full mutual releases of civil claims.

The Livingstones concede that they never submitted their

bills to Washington Township, as apparently required by

the terms of the agreement. The district court found that

their failure to do so rendered it impossible for the

municipal defendants to ratify the release-dismissal

agreement, as “the public fisc cannot be allocated for an

indefinite amount to a private party.” App. at 377-78. The

district court did not, however, discuss an antecedent

question: whether (and how) a contract was ever formed

between the Livingstones and the municipalities.

Conceptually, it would hardly be possible for the

Livingstones to have rendered impossible the performance

of a contract that was never formed.®

9.As we noted in Livingstone I Washington Township's board of

supervisors also apparently gave some type of informal assent to the

agreement at the time that it was concluded. See i2 F.3d at 1208 n.4.

8 some question as to whether this assent would satisfy the

requirements of Pennsylvania law, however.

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appeal, the Livingstones assert that the failure of the

municipalities to ratify the release-dismissal agreement

meant that no contract was ever formed between the

Livingstones and the municipalities, and that the release-

dismissal agreement is therefore unenforceable.

We will not address this question, however, because we

find that it was not necessary for the municipalities to be

parties to the release-dismissal agreement in order for it to

be enforceable. It would suffice for the municipalities to

have been third-party beneficiaries of an agreement

concluded between the Livingstones and the

Commonwealth of Pennsylvania; and, indeed, the colloquy

before Judge Cicchetti suggests that this is what was

intended (assuming, of course, that a valid agreement was

formed at all). The principal parties negotiating the

purported release-dismissal agreement were the

Livingstones (through Mrs. Livingstone’s attorney, Ceraso)

and the Commonwealth (through Heneks, an assistant

district attorney). The agreement's terms appear to have

been wnat the Commonwealth would not oppose Mrs.

Livingstone’s motion for a judgment of acquittal. In

exchange, the Livingstones would submit their medical and

household damages bills to Washington Township, and,

when those bills were paid, would sign a full release of civil

liability with all of the municipalities and police officers

involved, reciprocal releases of civil Hability being signed by

those police officers and municipalities with potential

claims against the Livingstones.

Although the municipalities and police officers were

clearly intended to benefit from this agreement, the

agreement's success did not require them to be parties to it.

The Livingstones were not harmed by the municipalities’

lack of party status. If Washington Township did not pay

the Livingstones’ actual expenses, or if one of the

municipalities or officers refused to sign (or to negotiate in

good faith towards) a release, the Livingstones would have

lost nothing. The criminal charges against Mrs. Livingstone

could not have been reinstituted; moreover, the

Livingstones would presumably have been free to file a civil

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action against any of the municipalities or police officers

that failed to cooperate as anticipated.’

An implicit term of this release-dismissal agreement is

necessarily that the Livingstones could bring a civil suit

against the municipalities or police officers only after the

tones had made a good-faith effort to negotiate

towards reciprocal releases and those negotiations had

failed. This term follows from the duty of good faith and fair

dealing, Restatement (Second) of Contracts §205 (1981),

and that duty’s correlative obligation not to act so as to

defeat an agreement's objective. The record indicates that

the Livingstones did not make any effort to negotiate

towards such reciprocal releases. Hence, assuming that the

release-dismissal agreement is otherwise valid and

enforceable — the question that we will address next — the

tones’ failure to seek mutual releases would seem to

bar their suit.”

10. There is some indication that the Livingstones may have reasonably

believed that Washington Township was a party to the release-dismissa!

We will not decide here when, and whether, Washington Township

became a party to the agreement. But. even if a mistake did occur as to

the Township's status as a party, it would not be enough to render the

agreement voidable. In the words of the Restaternent (Second) of

Contracts, “Where a mistake of both parties at the time a contract was

made as to a basic assumption on which the contract was made has a

material effect on the agreed exchange of performances, the contract is

voidable by the adversely affected party . . . .” Restatement (Second) of

Contracts § 152(1} (1961). The agreed exchange of performances would

not have been affected by the non-participation of Washington Township.

As noted in the text. had Washington Township declined to pay the

Livingstones’ bills, or declined to sign a waiver, the Livingstones would

have remained free to bring a civil suit. and hence would not have been

harmed.

11. The duty of good faith and fair dealing exists not only under federal

common law. but also under Pennsylvania law. See, e.g. Somers v.

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We

The Livingstones also question whether North Belle

Vernon Borough and Fayette City Borough-which ¢ will refer

to, for brevity, as “the two boroughs™had the same status

under the release-dismissal agreement as did Washington

Township. In the voluntariness proceeding in the district

court, counsel] for the Livingstones had requested that a

specific question on the verdict form address the status of

the two boroughs under the agreement. The district court

declined to include such a question on the form, finding

that Ceraso’s statements in the colloquy before Judge

Cicchetti included all three municipalities, and that all

three therefore had the same status for purposes of the

voluntariness question. In response to the objections of the

Livingstones’ counsel to this ruling, the district court

permitted him to argue to the jury that the ambiguous

nature of the agreement between the Livingstones and the

two boroughs rendered the release-dismissal agreement

involuntary as a whole. App. at 804-06.

Although the Livingstones’ argument focuses on whether

the release-dismissal agreement was voluntary as to the

two boroughs, this issue cannot be completely disentangied

Somers, 613 A.2d 1211, 1214 (Pa. Super. 1992) (In the absence of an

express provision, the law will imply agreement by the parties to a

contract was made and to refrain from doing anything that would

destroy or injure the other party's right to receive the fruits of the

contract") (quoting Frickert v. Detter Brothers Fuel Co., 347 A.2d 701, 705

If the parties to an agreement intend for a third party to be a beneficiary,

the third party is entitled to enforce its rights under that agreement. See

Restatement (Second) of Contracts § 304 (1981); see also Fizz v. Kutz,

Dowd & Nuss, Inc., 519 A.2d 1037, 1039 (Pa. Super. 1987) fholding that

a beneficiary may enforce its right to performance if “recognition of a

beneficiary's right to performance is appropriate to effectuate the

intention of the parties") (internal quotation omitted). Because the

municipalities and police officers appear to

beneficiaries of the alleged agreement, they have standing to insist that

the Livingstones have a legal duty to perform their obligations under that

agreement.

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from that of whether the ent addressed the

boroughs at all. The colloquy before Judge Cicchetti is far

from a model of clarity on this question.” During the

colloquy, Ceraso stated that he had

no objection if those police departments or those

municipalities also wish to be included in the release,

and we would then have reciprocal releases from them,

and we would let that up to their individual counsel to

make that decision, but we certainly would have no

objection in doing that so it would be reciprocal on

both sides.

Appellees North Belle Vernon Borough and Officer Darhl

Snyder’s App. at 31. This statement can be construed

either (1) as indicating that the Livingstones had

undertaken to negotiate towards a civil release with the two

boroughs (making the boroughs, with Washington

Township, third-party beneficiaries of the release-dismissal

agreement), or (2) as merely making an offer to those two

municipalities.

The question of which of these readings of Ceraso’s

remarks is correct was not argued before the district court.

On remand, the district court should permit the parties to

brief this question. In resolving this issue, the district court

may consult all of the sources to which courts usually refer

in determining the meaning of ambiguous contractual

language, including, for instance, the course of the

negotiations between the parties.”

12. This is an illustration of why release-dismissa!l agreements should be

concluded in writing..See infra, pp. 31-36.

13. We note that Ceraso seems to have had at least apparent authority

to negotiate a release-dismissal agreement on Mra. Livingstone's behalf.

As a matter of contract interpretation, then. she would be bound by the

terms of the agreement as he negotiated them, even if his unders

of the agreement's terms differed from hers. (In his testimony before the

district court, Ceraso also repeatedly referred to himeelf as representing

Mr. Livingstone. See, e.g., App. at 713, 714, 715. 716, 719. The record

does not make clear, however, whether (and, if s0, when) an attorney-

client relationship actually arose between Ceraso and Mr. Livingstone.)

A release-dismissal agreement is not. of course, an ordinary contract.

Thus, if Mrs. Livingstone’s understanding of the two boroughs’ status

17A

IV. The Public Interest

In Town of Newton v. Rumery, 480 U.S. 386 (1987), a

four-Justice plurality found that, as a matter of federal

common law, a release-dismissal agreement will operate to

bar a section 1983 claim unless “the interest in [the

agreement's] enforcement is outweighed in_ the

circumstances by a public policy harmed by the

enforcement of the agreement.” Id at 392. Justice

O'Connor, whose fifth vote was dispositive, noted in a

concurring opinion that it is the burden of the defendants

to demonstrate that “a particular release executed in

exchange for the dismissal of criminal charges was

voluntarily made, not the product of prosecutorial

overreaching, and in the public interest.” Rumery, 480 U.S.

at 401.

In Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993) (in

banc), cert. denied, 114 S. Ct. 1303 (1994), this court

addressed the circumstances in which enforcement of a

release-dismissal agreement will be in the public interest.

Cain made clear that the above-quoted passage from

Justice O’'Connor’s Rumery concurrence should not be read

to suggest that the “prosecutorial overreaching” and “public

interest” questions are to be analyzed separately; rather,

“the concept of prosecutorial misconduct is embedded in a

larger inquiry into whether enforcing the release would

advance the public interest.” Id. at 380; see also Lynch v.

City of Alhambra, 880 F.2d 1122, 1126 n.6 (9th Cir. 1989)

(arguing that there is only one inquiry); but compare Woods

v. Rhodes, 994 F.2d 494, 500-01 (8th Cir. 1993)

(apparently treating the analyses as distinct).

Cain found that a party seeking to demonstrate that the

enforcement of a release-dismissal agreement is in the

public interest must make two distinct showings, which we

will call here Cain's “objective” and “subjective” elements.

under the agreement differed from Ceraso's, this fact could be taken into

account in the voluntariness analysis. In this regard, we obeerve that,

should it become necessary on remand to conduct a new voluntariness

proceeding, the district court should permit the Livingstones to argue

that the release-disrnissa]l agreement was voluntary as to certain of the

municipalities but not as to others.

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Cain's objective element requires both that “the facts known

to the prosecutor when the agreement was reached” must

have sufficed to support the prosecutor's proffered public

interest reason for concluding the agreement, and that this

public-interest reason be a legitimate one. 7 F.3d at 381.

Relevant public interests include the interest, cited by the

Court in Rumery, in avoiding the costs and disruptions

associated with defending “marginal” or “frivolous” civil

rights actions, Rumery, 480 U.S. at 395, and the

countervailing interest, also cited by the Court, in detecting

and deterring official misconduct. See Rumery, 480 U.S. at

394; id. at 400 (O'Connor, J., concurring).

Cain's subjective element is its requirement that:

the public interest reason proffered by the prosecutor

must be the prosecutor’s actual reason for seeking the

release. . . . Any alternative to the ‘actual reason’

requirement creates the real danger that actions taken

pursuant to an improper motive, such as -to protect

public officials from a meritorious civil rights lawsuit,

may be legally excused because a court later finds that

some ‘benefit’ might have been incidentally achieved.

7 F.3d at 381 (emphasis in original). The party seeking to

enforce the release-dismissal agreement bears the burden

of proof on both of these elements.

In the present case, the district court denied a motion by

the Livingstones that sought to establish as a matter of law

that the enforcement of the release-dismissal agreement

was contrary to the public interest, and instead entered

summary judgment against the Livingstones on this

question, finding that the enforcement of the agreement

was in the public interest as a matter of law. On appeal,

the Livingstones challenge both rulings. They argue, first,

that the district court erred in denying their motion for

summary judgment, and that it should have found the

release-dismissal agreement unenforceable as a matter of

law. In the alternative, they contend that the district court

erred in granting the appellees’ motion for summary

judgment, because there was a genuine issue of material

fact as to prosecutorial motive.

19A

The Livingstones’ two arguments are founded on distinct

elements of the Cain analysis. Their argument that the

district court erred in declining to find the release-dismissal

agreement unenforceable as a matter of law is directed at

Cain's objective element; it challenges the district court's

conclusion that the facts known to the prosecutor at the

time the release-dismissal agreement was concluded

sufficed to establish that it was in the public interest to

conclude such an agreement. Their argument that there is

a genuine issue of material fact as to prosecutorial

motivation is directed at Cain's subjective component,

which requires that the prosecutor's stated reason for

concluding a release-dismissal agreement “must be the

prosecutor's actual reason for seeking the release.” Cain, 7

F.3d at 381. We will consider these arguments in that

order.

A. Cain's Objective Element

1. The District Court’s Analysis

The district court concluded that the facts known to the

prosecutor at the time the agreement was concluded

justified finding that the enforcement of the release-

dismissal agreement would be in the public interest. The

court explained its conclusion as follows:

Here, Judge Cicchetti, who presided over the criminal

trial against Mrs. Livingstone and who supervised the

execution of the release-dismissal agreement, stated in

the colloquy that he was supportive of the agreement

because he saw no benefit to a criminal trial and that

it was in everyone's best interest to resolve the matter.

Mr. Heneks, the assistant district attorney who was

assigned to the case stated that he believed that the

Commonwealth would be well-served by the resolution

as well. Later, in a sworn statement, Mr. Heneks

indicated that continuation of the criminal trial would

have created further conflict between the Livingstones

and their daughter who had reconciled their differences

since the night of the incident. In addition, he stated

that the agreement saved the Commonwealth from

spending further resources to prosecute. The reasons

stated by Mr. Heneks are factors that were known to

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him at the time the agreement was executed. In the

absence of evidence that the motivation was improper,

we may accept his explanation. In addition, each

reason constitutes an independent, legitimate reason

which is directly related to his prosecutorial

responsibilities. See Rumery, 480 U.S. at 398.

App. at 380-381. The court's analysis posits three public-

interest rationales for upholding the release-dismissal

agreement: the agreement’s supervision by Judge Cicchetti,

the desire of the Commonwealth to avoid further conflict

between the Livingstones and their daughter, and the

Commonwealth's wish to avoid expending more of the

Commonwealth's resources to prosecute Mrs. Livingstone.

We will consider these three rationales seriatim.

As to the first of the three rationales, it is of course true

that (1) the Rumery plurality noted that judicial supervision

of release-dismissal agreements can “help ensure that the

ents did not result from prosecutorial misconduct,”

480 U.S. at 399 n.10, and (2) Justice O’Connor observed

that such supervision can “bear on whether a release was

voluntary and not the product of overreaching,” id. at 401-

02. Judicial supervision can indeed be important in

ensuring that an agreement was concluded voluntarily,

and, to a lesser extent, that the prosecutor's stated reasons

for seeking an agreement are genuine. Judicial supervision

is less relevant to Cain's objective inquiry, however, which

focuses on the information known to the prosecutor. At

best, judicial supervision may help to reinforce a

subsequent court's independent determination that a

prosecutor had a sound public-interest reason for

concluding a release-dismissal agreement. As will become

clear, it seems unlikely that Judge Cicchetti’s supervision of

the dismissal of the charges against Mrs. Livingstone

played that role here.

Nor does Heneks’ asserted desire to avoid further stress

to the Livingstone family serve a particularly strong public

interest. It is, of course, commendable for prosecutors to

give some thought to the welfare of the accused's family. In

practice, however, the public would be rightly surprised

were a prosecutor to place these considerations above, for

instance, the public interest in punishing crime, or the

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public interest, expressed in section 1983, in exposing

official abuse.’* We do not think that the public's interest in

avoiding strain to a defendant's family can, standing alone,

be a legitimate reason for concluding a release-dismissal

agreement.

Nor, finally, does Heneks’ wish to avoid the cost of

er prosecution much weight. A desire to avoid

the cost of prosecution (and of a related civil suit) may be

an acceptable public-interest rationale for some release-

dismissal agreements. As Justice O'Connor observed in

Rumery:

[Pjrosecutors may legitimately believe that, though the

police properly defused a volatile situation by arresting

a minor emeanant, the public interest in further

litigation is outweighed by the cost of litigation.

Sparing the local community the se of litigation

associated with some minor crimes for which there is

little or no public interest in prosecution may be a

legitimate objective of a release-dismissal agreement.

480 U.S. at 399-400. By definition, in any case in which a

release-dismissal agreement has been concluded, the

community will have avoided the cost of prosecution; thus,

a@ prosecutor could assert that “the public interest in

further litigation is outweighed by the cost of litigation” in

any case. In order to ensure that such assertions do not act

as a blanket exception to the public-interest element of

Rumery, the courts must subject those assertions to close

scrutiny.

14. Moreover, as we observed in Livingstone I, “whatever opportunity

existed for further rupture in the Livingstone family had already been

accomplished by the testimony of all family members save Mrs.

Livingstone.” 12 F.3d at 1215.

to punish.

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2. Marginal or Frivolous Nature of the Livingstones’ Civil

Rights Claims

The record does not indicate that Heneks considered

whether the Livingstones’ civil rights claims were marginal

or frivolous before concluding the agreement. In Cain, we

stated that a prosecutor must conduct an “individualized

analysis” of a defendant's civil rights claims before

concluding a release-dismissal we Wsemery 12 F.3d at 383,

and that in order for a release-dismissal agreement to be

enforceable “there must be a case-specific showing that the

released civil rights claims appeared to be marginal or

frivolous at the time the agreement was made and that the

prosecutor was in fact motivated by this reason.” Id.

The question whether the facts known to Heneks could

have supported the conclusion that the Livingstones’ civil

rights claims were marginal or frivolous was not addressed

in the district court.” On this record, resolution of that

16. Cain implied that prosecutors might be excused from its requirement

that they determine whether released civil rights claims appear marginal

or frivolous in cases in which other public-interest reasons support

enforcement of a release-dismissal agreement. See id. (referring to a

showing that “the release-dismissal agreement advanced any other

public interest”). This exception must necessarily be reserved for cases,

like Rumery, in which unusually strong public interests support the

release-dismisesal agreement. See infra note 27. If prosecutors could

routinely avoid assessing the merits of civil rights claims merely by citing

such considerations as the avoided costs of trial — considerations that,

as we have already noted, could be cited in virtually any case — Cain

would have little force.

Indeed, in Cain, the prosecutor had required that a criminal defendant

sign a civil release before entering Accelerated Rehabilitative Disposition

(ARD). ARD is a program under which persons subject to relatively minor

charges can undergo a probationary period in lieu of trial, and is

intended precisely for cases in which the costs to the public of further

tion outweigh the benefits of such prosecution. See Cain, 7 F.3d

at 382-83. Thus, by consenting to ARD, the prosecutor in Cain had

implicitly decided that it was not in the public interest to incur the costs

of trial. Nevertheless, the Cain court found that the prosecutor was

required to assess the merits of civil rights claims before concluding a

release.

17. Under Cain, we will only enforce a release-diemiseal agreement on

the basis of public-interest reasons for enforcing a release-dismissal

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question in the defendants’ favor was a necessary predicate

for a grant of summary judgment holding that the release-

dismissal agreement was in the public interest. We will,

therefore, vacate the district court's grant of summary

judgment and remand the case so that the parties can

address the question whether the Livingstones’ civil rights

claims were regarded — and, if so, whether they were

properly regarded — by the prosecuting attorney as

marginal or frivolous.

We think that, on remand, the parties will, at a

minimum, wish to take account of the material in this

record which su ts that, at the time Heneks agreed to

the dismissal of the charges against Mrs. Livingstone,

considerable information pointing in the direction of

significant police misconduct had come to Heneks’

attention." Of course, what is of record here cannot be

deemed dispositive of the question whether Heneks could

properly have concluded that the Livingstones’ civil rights

agreement that were actually considered by the prosecutor who

concluded that agreement. It is not now clear whether Heneks

considered the marginal or frivolous nature of the Livingstones’ claims.

Heneks’ affidavit discussing the circumstances under which the release-

dismissal agreement was concluded does not state that he considered

whether the Livingstones’ possible civil rights claims were marginal or

frivolous. App. at 627. However, the affidavit also does not foreclose the

possibility that Heneks considered this question; the affidavit was signed

in November 1991, some two years before Cain was decided. so that

Heneks (and the appellants) can perhaps be excused for falling to

address this issue in the affidavit. The Livingstones have seemingly never

raised the applicability of this element of Cain in the district court. In

these circumstances, we do not think that the appellees can fairly be

treated as having waived the opportunity to address this matter in the

district court. (Of course, if, on remand, it emerges that Heneks did not

consider the marginal or frivolous nature of the Livingstones’ civil rights

claims, that will end the district court's inquiry, and the release-

dismissal] agreement will, under Cain, be unenforceable.)

18. As a general matter, civil rights claims based on substantial evidence

of official misconduct will not be either marginal or frivolous. But this

may not be true in every case. For instance, if the official involved would

clearly have absolute tmmunity for the alleged misconduct, then a

subsequent civil rights sult might indeed be marginal, whether or not

there is substantial evidence that the misconduct occurred.

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claims were marginal or frivolous, for the reason that the

p in the district court have not been focused on

that issue. Further evidence may be adduced on remand

that casts the relevant events in a very different light. But

we think it may be helpful to relate the principally salient

matter —— in our current record in order to provide

a point of dep for the proceedings on remand.

The most important item of evidence in this respect is the

report of Dr. Noche, the emergency-room doctor who

examined Mrs. Livingstone on the oy a of her encounter

with the police. That report indicates that Mrs. stone

had first or second degree burns in her vaginal area.” The

substance of Dr. Noche’s report was almost certainly known

to Assistant District Attorney Heneks.” The record does not

App. at 549. Webeter’s Third New International Dictionary (1966) defines

’ rr ee ee eee,

Heneks was also one of the of the release-dismissa!

agreement. In those negotiations, Washington had indicated

that it would pay Mrs. ‘es medical bills. It would be curious

indeed for Heneks to have conducted this without knowing

26

contain any plausible explanation of how this burn came to

appear on Mrs. Livingstone’s genitalia — other than Mrs.

Livingstone’s own explanation, which was that it was the

result of the police's deliberate misuse of a stun gun.”’ Nor

is there any indication in the record that Heneks was aware

of other evidence that contradicted the emergency-room

report. In short, it is difficult to escape the conclusion

that Dr. Noche’s report significantly corroborates Mrs.

Livingstone’s claim that the police deliberately applied a

stun gun to her genitalia, an act that, if it did occur, would

amount to an outrageous instance of police abuse.”

21. Counsel for appellees asserted at oral argument that it is the position

of the police-officer defendants that a stun gun had been used, but on

Mrs. Livingstone’s thigh. It is, perhaps, conceivable that one of the police

officers inadvertently applied the stun gun to Mrs. Livingstone's

genitalia, and that neither of the police officers involved in the encounter

with Mrs. Livingstone noticed this error. Such a scenario, however,

hardly seems likely: a trained police officer would presumably exercise

great caution in the use of a stun gun, and would be likely to notice if

he (or another officer) used such a gun improperly.

22. Heneks did state, in an affidavit, that “I believed we had a sufficient

case for conviction.” App. at 625. But this, of course, does not imply that

no police misconduct occurred; for instance, Mrs. Livingstone and Officer

Monack may both have been at fault — {.e., each may have assaulted the

other.

It is also true that Mrs. Livingstone’s own lawyer, Ceraso, testified that

he had believed during the criminal trial that Mrs. Livingstone was

unlikely to win a large damages award in a civil rights suit. App. at 227,

767. Upon close examination, however, Ceraso's doubts seem to be more

in the nature of pragmatic concerns about the likely extent of Mrs.

Livingstone's recovery than a belief that she did not have a viable cause

of action. For instance, Ceraso noted that there were no follow-up

medical records documenting her damages claims. App. at 227.

Finally, the Federal Bureau of Investigation did apparently inquire into

whether criminal charges should be brought against Officer Monack

based on the events of the night of January 12, 1989, and decided that

they should not. App. at 457, 473. But, of course, criminal and civil

standards of proof are different. and the section 1983 public interest in

preventing police misconduct is by no means vindicated whenever an

Official body declines to bring criminal] charges.

23.A further item of evidence, also available to Heneks, should have

suggested to him that not only the police-officer defendants, but also

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It is possible that facts not in the present record would

undermine some element of the foregoing analysis.* On

remand, the parties should address (1) whether Heneks

made a determination that the Livingstones’ civil rights

claims were marginal or frivolous, and, if so, on what basis

he did so; (2) whether Heneks knew or should have known”

of the foregoing evidence of police misconduct; and (3) if

Heneks did know, or should have known, of that evidence,

whether other facts available to Heneks in some way

undercut it. We emphasize that it would not suffice for the

defendant municipalities and police officers to demonstrate

on remand that Heneks was aware of other evidence that

merely contradicted the foregoing evidence of police

misconduct, as this would only establish that there was

substantial evidence on both sides of the misconduct

question.” Instead, defendants would have to demonstrate

Livingstone’s civil rights. This evidence was the testimony of Police Chief

Matthews at Mrs. Livingstone’s criminal trial, which suggested that the

Township had a policy of returning children to their mothers,

irrespective of “the welfare of the child or anything else.” App. at 425. As

Magistrate Judge Mitchell observed, in a (subsequently adopted) Report

and Recommendation finding it inappropriate to enter surmnary

judgment in favor of the municipalities as to the Livingstones’ Fourth

‘Amendment claims, this testimony could be read to suggest that it was

Washington Township's policy to act without securing a warrant — as

apparently occurred in this case. App at 332. (This is not, of course, the

only interpretation of Matthews’ testimony.)

24. For instance. it is at least conceivable that accurate information

available to Heneks (but somehow omitted from the present record)

indicated that the medical report of Mrs. Livingstone’s burns was

fabricated.

“on a casevy-case basis” before concluding release-dismissal

failure to carry out this duty.

26. This distinguishes the present case from situations in which the

principal facts are not at all clear, and mutual misconduct ‘= one

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that Heneks was aware of other evidence that rendered the

foregoing evidence of police misconduct fundamentally

untrustworthy.

It is conceivable that the district court may conclude that

Heneks was not aware, and had no reason to be aware, of

some of the foregoing evidence of official misconduct, and

that, not being apprised of this evidence, Heneks

reasonably determined that the Livingstones’ civil rights

claims were marginal or frivolous. That would not, however,

be the end of the district court’s inquiry. The district court

would then have to address the further question whether

enforcement of a release-dismissal agreement in the face of

substantial evidence of police misconduct would be

compatible with Rumery and Cain, notwithstanding that the

evidence of misconduct was not known, or reasonably

knowable, by the prosecutor at the time the prosecutor

entered into what might appear, in retrospect, to be an

improvident agreement.”’

concetvable explanation. In such a case, as the Ninth Circuit observed in

Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir. 1969), there is at

least an argument for the use of release-dismissal agreements:

One rationale for the use of these agreements is that they achieve a

rough substantial justice where the “true” facts of the case are not

known. For example, if the prosecutor is confronted with conflicting

stories of police misconduct, and is genuinely unsure as to whom to

believe. the execution of a release-dismiseal agreement allows

everyone to declare the case a draw and go home, thereby avoiding

the risk and expense of going to trial.

Id at 1127 n.8. In a case in which there is substantial evidence that

official misconduct has occurred, it is less appropriate to declare a case

a draw. This is particularly true when one of the parties purportedly

agreeing to a draw is the subject of a pending criminal prosecution.

27. Cf. Coughlen v. Coots, 5 F.3d 970, 975 (6th Cir. 1993) (finding that

enforcement of a release may not be in the public interest in a case in

which there is substantial evidence of police misconduct). For purposes

of this analysis, it may be useful to distinguish between those interests

of the public that are served simply by the termination of a prosecution

(such as avoiding the costs of that prosecution), and those that can only

be served by enforcing a release-dismissal agreement. A possible example

of the latter type of interest is provided by Rumery itself. In Rumery the

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B. Cain's Subjective Element: Prosecutorial Motivation

Cain's subjective element requires that the public-interest

reasons cited by a party seeking to enforce a release be

those that actually motivated the prosecutor to conclude

the release. That is, under Cain, a court may not enforce a

release if it finds that the release was concluded for some

reason different from that presented as_ justifying

enforcement, even if the court believes that “some ‘benefit’ ”

would be “incidentally achieved” by enforcement. Cain, 7

F.3d at 381.

The Livingstones challenge the district court's

determination that there was not a genuine issue of

material fact as to whether the prosecutor's stated reasons

for concluding the release-dismissal agreement were his

actual reasons for doing so. The district court based this

determination on the following: (1) the charges against Mrs.

tone were filed the day after her encounter with the

police; (2) the charges “correspond to the relevant conduct

of Mrs. Livingstone according to the statement taken from

Carrie Livingstone, and the affidavit which supports the

complaint”; and (3) “discussions of settlement were initiated

after nearly three days of testimony in the criminal trial.”

App. at 379-80.

We do not quarrel with these three propositions. But they

do not, in our judgment, constitute a sufficient predicate

for the determination that there is no genuine issue of

material fact with respect to whether the prosecutor's

stated reasons were his real reasons. As we have noted, on

prosecutor's reason for concluding a release-dismissa] agreement was to

abort two trials — Rumery’s criminal trial and the civil suit expected to

be brought by Rumery — which would have required the testimony of a

potential witness whose testimony was needed by the prosecutor in

another trial and for whom testifying was likely to be traumatic. Only

enforcement of the release-dismissal agreement could have served this

interest. See Seth F. Kretrner, Releases, Redress and Police Misconduct:

Reflections on Agreements to Waive Cwil Rights Actions in Exchange for

Dismissal of Criminal Charges, 136 U. Pa. L. Rev. 851, 932-35 (1968)

(arguing that the courts should pay cloee attention to this class of public

interests in analyzing the enforceability of release-dismiseal agreements).

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the record before this court it appears not unlikely that the

prosecutor was aware of substantial evidence of police

misconduct in the present case. This lends credence to the

inference that the prosecutor's decision to bring charges

against Mrs. Livingstone, the manner in which he

conducted the trial, and his decision to propose the

conclusion of a _ release-dismissal agreement to the

Livingstones may have been motivated by a desire to

protect the relevant police officers and municipalities from

liability. Such a motivation would render the agreement

unenforceable. See Cain, 7 F.3d at 381.

None of the three propositions relied on by the district

court eliminates the possibility that the prosecutor acted

with an improper motive. As to the fact that the

against Mrs. Livingstone were filed promptly, it is true that,

had the charges against Mrs. Livingstone been brought well

after the incident, or after the police learned that she

intended to sue, this might have indicated prosecutorial

misconduct. See Lynch v. City of Alhambra, 880 F.2d 1122,

1128-29 (9th Cir. 1989). But the fact that the charges

against her were brought promptly does not, conversely,

demonstrate that no misconduct occurred. As to the fact

that the charges against Mrs. Livingstone were supported

by independent evidence, charges need not be fabricated in

order for a release-dismissal agreement to be the product of

an improper prosecutorial motive. The relevant question is

instead whether the decision to pursue a prosecution, or

the subsequent decision to conclude a release-dismissal

agreement, was motivated by a desire to protect public

officials from Hability. Finally, the fact that the discussions

of settlement were initiaited “after nearly three days of

testimony in the criminal trial” is subject to many

interpretations. One interpretation which is at odds with

summary judgment is that a purpose of the trial was to

erode the Livingstones’ resistance to signing a release.

We therefore find that there is a genuine issue of material

fact as to whether the prosecutor's stated reasons for

concluding the release-dismissal agreement at issue in the

present case were his actual reasons. Thus, should the

district court find that information known to the prosecutor

could have sufficed to establish that there was a legitimate

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31

public-interest reason for concluding a release-dismissal

agreement, it should then conduct a jury trial to determine

whether the prosecutor's stated reasons for concluding an

agreement were his actual reasons for doing so.”

V. Voluntariness

A. Standard of Proof of Voluntariness

The district court instructed the jury that the defendant's

burden of proof in establishing the voluntariness of the

release-dismissal agreement was one of “preponderance of

the evidence.” The Livingstones challenge that instruction,

arguing that the standard should have been one of “clear

and convincing evidence.” We agree.

In Rumery, the Supreme Court had no occasion to

consider the appropriate standard of proof; the language

used by the Court in finding the release-dismissal

agreement at issue in that case enforceable was consistent

with either a preponderance standard or a standard of clear

and convincing evidence.” Although we did-not explicitly

address the question of the appropriate standard of proof in

28. In Livingstone I, we observed that, although the ultimate question of

whether enforcement of a release-dismissal agreement is in the public

interest is a question of law for the court, “there may be factual issues

intertwined with the legal issues, such as whether the public interest

reason profiered by the prosecutor is the actual reason that motivated

the prosecutor to enter into the release-dismissa] agreement.” 12 F.3d at

1215. Prosecutorial motivation is, accordingly. a jury question.

The question whether there is substantial evidence of police misconduct.

by contrast, is not. The process of weighing the evidence of police

misconduct against the prosecutor's asserted reasons for concluding a

release-dismissa] agreement is part of the broad task of balancing the

public interests that favor and that disfavor enforcement. That task is

one for the court. See Berry v. Peterson, 887 F.2d 635, 637 (th Cir.

1989).

29. Both Justice Powell's plurality opinion and Justice O'Connor's

concurring opinion found that there was strong evidence that the

at issue in Rumery had been concluded voluntarily. Indeed.

Justice Powell said that it was “clear” that Rumery entered into the

agreement voluntarily, 480 U.S at 396, while Justice O'Connor described

the evidence that Rumery entered into the agreement voluntarily as

“convincing.” id. at 403.

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Livingstone I, we did observe that oral release-dismissal

agreements should be subjected to particularly exacting

judicial scrutiny:

Ordinarily, the existence and terms of fa release-

dismissal] agreement can be resolved by reference to a

written document. While we do not hold that as a

matter of law an oral agreement to waive the right to

sue {n exchange for the dismissal of criminal charges

can never be valid, the absence of a written release-

dismissal t requires even more scrupulous

review by the courts than otherwise. No published

opinion of any of the courts of appeals after Rumery

has even considered, much less sustained, an oral

release-dismissal agreement. Indeed, the Rumery Court

never mentioned the possibility of an oral release-

dismissal agreement. Justice -Stevens, at least,

assumed that such agreements were written. See

Rumery, 480 U.S. at 417 n.22, 107 S.Ct. at 1205 n.22

(‘A court may enforce such an agreement only after a

careful inquiry into the circumstances under which the

plaintiff signed the agreement and into the legitimacy of

the prosecutor's objective in en into fit].

(emphasis added)) (Stevens, J., dissen :

12 F.3d at 1212. We then noted a number of advantages of

written agreements. These included the fact that they “allow

the parties more opportunity for deliberate reflection,” id,

and that a written document facilitates negotiation as to

the agreement's terms, see id. at 1213. We also observed

that a written release-dismissal agreement may provide a

subsequent court with evidence as to e parties’

respective bargaining power.” Id. For example, if the

attorney for the party forgoing civil claims prepared the

agreement, this may support the conclusion that the

agreement was voluniary; if the prosecutor did so, and if he

presented it in a manner that discouraged negotiation, this

may support the conclusion that it was not. See id

In ton v. Texas, 441 U.S. 418 (1979), the Supreme

pce set forth its methodology in assigning standards of

proof:

The function of a standard of proof, as that concept is

embodied in the Due Process Clause and in the realm

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33

of factfinding, is to ‘instruct the factfinder con

the degree of confidence our society thinks he should

have in the correctness of factual conclusions for a

particular type of adjudication.’ In re Winship, 397 U.S.

358, 370, 90 S.Ct. 1068, 1070, 25 L.Ed.2d. 368 (1970)

(Harlan, J., concurring). The standard serves to

allocate the risk of error between the li ts and to

indicate the relative importance attached to the

ultimate decision.Id. at 423. The Court then placed the

three standards of proof within this broad framework.

The least demanding standard, that of a preponderance

of the evidence, is appropriate to a “typical civil case

involving a monetary dispute between private parties.”

Id. Society's concern with the outcome of such a case

is “minimal”; thus, it is appropriate to adopt a

standard that allocates the risk of error between the

litigants “in roughly equal fashion.” Id. The standard of

proof beyond a reasonable doubt, by contrast, is

reserved for criminal cases, in which society wishes to

“exclude as nearly as possible the likelihood of an

erroneous judgment.” Id.

Intermediate between these two standards is the one

applicable in cases in which “the interests at stake . . . are

deemed to be more substantial than mere loss of money.”

Id. at 424. The standard has been known by a variety of

names, but “usually employs some combination of the

words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing.’” Id.

at 424. Examples of proceedings in which the Court has

found a heightened standard of proof to be appropriate are

) to terminate parental rights, see Santosky v.

Kramer, 455 U.S. 745 (1982); involuntary commitment

proceedings, see Addington, 441 U.S. at 432; and

deportation proceedings, see Woodby v. INS, 385 U.S. 276,

285-86 (1966).

The Court has stated that, in civil actions between

private litigants, a standard of proof greater than one of a

preponderance of the evidence will only apply in cases in

which “ ‘particularly important individual interests or rights

are at stake.’” Grogan v. Garner, 498 U.S. 279, 286 (1991)

(quoting Herman & MacLean v. Huddleston, 459 U.S. 375,

389-90 (1983)). Thus, a preponderance standard suffices

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even in cases in which “severe civil sanctions” may

ultimately be imposed, if those sanctions do not implicate

particularly important interests or rights. See Huddleston,

459 U.S. at 389.”

We find that the enforcement of the oral release-dismissal

agreement at issue in this case would indeed implicate

“important individual interests or rights.” Although the

Livingstones’ section 1983 claims are in form claims for

money damages, underlying them is the stones’

interest in redressing a possible violation of their

constitutional ts.*" Moreover, section 1983 actions,

when successful, do more than compensate injured

plaintiffs: they serve the important public purpose of

exposing and de official misconduct, and thereby

protecting the rights of the public at large. In Rumery, all

nine Justices recognized the importance of ensuring that

release-dismissal agreements do not encroach upon this

purpose. See Rumery, 400 U.S. at 395; id at 400

(O'Connor, J., concurring); id. at 419 (Stevens, J.,

dissenting).™

A clear-and-convincing standard appropriately allocates

more of the risk of error associated with oral release-

dismissal agreements to those who seek to enforce them. As

30. An apt example is in a § 10(b) securities fraud claim, in which the

Court has found that a preponderance standard is appropriate, because

in such a case there is mo reason to accord special deference to the

interests of either plaintifis or defendants. Id. at 390.

31. The first amendment's petition clause protects a citizen's right of

access to governmental mechanisms for the redress of grievances.

including the right of access to the courts for that purpose. See Bieregu

v. Reno, 59 F.3d 1445, 1453 (3d Cir. 1995); San Filippo v.

SO F.3d 424, 439 n.18, 443 (Sd Cir. 1994), cert. denied, 115 S. Ct. 735

(1995).

32. It is appropriate to include the public's interest in detecting and

deterring official abuse among the “particularty important individual

be demonstrated with “convincing clarity” in a libel action, and citing the

public's interest in protecting those who would criticize official conduct

from the expense and risk of litigation).

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we noted in Livingstone I, oral ealogoe-hemienns agreements

raise particularly significant questions of voluntariness, as

the lack of a written document may inhibit negotiation as

to an agreement's terms and render it cult for

prospective to reflect on those terms. We also

observed in stone I that an oral agreement ordinarily

contains less evidence as to the course of the parties’

negotiations than does a written agreement. As a result,

there is a greater risk of error in a jury's evaluation of

whether an oral release-dismissal agreement was concluded

voluntarily.

We think that those seeking to enforce a release-

dismissal agreement should bear this greater risk. Indeed,

a “clear and _ convin standard will encourage

prosecutors who are likely to have comparatively ent

contact with release-dismissal agreements, and who have

an interest in ensuring that those agreements are later

found to be enforceable — to ensure that release-dismissal

agreements are, whenever ible, written down. The

standard will therefore have the salutary effect of reducin

the overall risk of misunderstandings in the conclusion o

release-dismissal agreements, and increasing the accuracy

of juries’ decisions as to whether a ease-dismissal

agreement was concluded voluntarily.”

33. We note that there is some analogy between the rule that we apply

today and the Statute of Frauds, which requires that certain important

contracts be in writing in order to be enforceable. The Statute of Frauds

is intended, inter alia, to encourage caution in consummating important

transactions, and to ensure that there is reliable evidence that a

transaction occurred and of its terms. See Restatement (Second) of

pending against one of the parties. Encouraging the parties to write their

agreement down renders it less likely that one of them will act in haste.

Cf. Restatement (Second) of Contracts § 112 cmt. a (1961) (noting that the

inclusion of suretyship contracts in the Statute of Frauds “serves the

2 RS eae a a

action’).

Section 139 of the Restatement (Second) of Contracts, “Enforcement by

Virtue of Action in Reliance,” provides a list of circumstances relevant to

whether an oral agreement should be enforced despite the Statute of

Frauds. This list includes “the extent to which . . . the making and terms

fof the agreement] are . . . established by clear and convincing evidence.”

See Restatement (Second) of Contracts § 139 (1981) (emphasis added).

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Since, when this case was first remanded, the parties

challenging the enforceability of the Livingstones’ oral

release-dismissal agreement were only required to establish

the voluntariness of the agreement under a preponderance-

of-the-evidence standard, the jury's finding of voluntariness

will be vacated. If, on this remand, it again becomes

necessary to address the issue of voluntariness, the more

demanding clear-and-convincing standard will be utilized.*

B. Instruction on Existence of a Legitimate Criminal Justice

Objective.

The Livingstones sought to have the district court

instruct the jury that one of the factors for it to consider in

determining whether they voluntarily entered into the

release-dismissal agreement was “whether there is a

ljelgitimate criminal justice objective to support [the

agreement's] validity.” Livingstones’ Proposed Jury

Instruction 10, App. at 394. The district court declined to

so instruct; the Livingstones contend that this was error.

Evidently the rationale for the proposed instruction was

that the Livingstones sought to argue to the jury that

elements of the public-interest analysis should enter into

the jury's evaluation of whether the agreement was

voluntary. We see no reason why the public-interest issue

is pertinent to the jury’s consideration of the voluntariness

issue, and we therefore think the district court was correct

in concluding that such an instruction would have been

inappropriate.

C. Admission of Ceraso's Testimony.

The district court found that, by challenging the release-

dismissal agreement, the Livingstones had waived any

claim of attorney-client privilege as to the testimony of

Ceraso, Mrs. Livingstone’s lawyer at her criminal

34. Appellants do not raise the question whether all oral release-

dismissal agreements are unenforceable as a matter of law.

I declined to reach this issue, see Livingstone I, 12 F.3d at 1212. and so

do we; our discussion of the standard of proof of voluntariness should

not be read to indicate that we have decided this question. We also note

that we need not. and do not, address the appropriate standard of proof

for enforcement of a written release-dismissal agreement.

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37

proceeding.* Accordingly, the district court permitted

Ceraso to be deposed, and then allowed him to be called as

a witness at the voluntariness proceeding. App. at 101. On

appeal, the Livingstones argue that this decision was

erroneous. We disagree.

“The attorney-client privilege is waived for any relevant

communication if the client asserts as a material issue in a

proceeding that: (a) the client acted upon the advice of a

lawyer or that the advice was otherwise relevant to the legal

significance of the client’s conduct.” Restatement of the Law

Governing Lawyers § 130(1) (Final Draft No. 1, 1996); see

also Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d

851, 863 (3d Cir. 1994) (“IA] party can waive the attorney

client privilege by asserting claims that put his or her

attorney's advice in issue in the litigation.*). The

tones’ complaint states that Washington Township

“may seek to assert as a possible defense a purported

agreement not to sue and/or release,” but that the

Township “will not be able to sustain its burden that the

same was entered into in a knowing and voluntary fashion.”

App. at 21. The complaint goes on to state that the

agreement was not “knowing” because “[pliaintiffs, at the

time, were unaware that the same could be interpreted as

foregoing a damage claim. They specifically were unaware of

the precise extent of any claimed waiver.” App. at 22. The

Livingstones made similar claims before the district court

and on appeal.

Mrs. Livingstone was represented by counsel at her

criminal trial; her attorney played a central role in the

negotiation of the release-dismissal agreement. Under

Rumery, the advice of counsel is an explicit, and important,

element of the voluntariness analysis. See Rumery, 480

U.S. at 394; id. at 401 (O'Connor, J., concurring) (citing, as

one of the factors bearing on the enforceability of a release-

35. Ceraso described himself in his testimony at the voluntariness

proceeding as effectively representing both Mr. and Mrs. Livingstone in

the negotiation of the release-dismissal agreement. App. at 719. There is.

however, no indication in the record that he had any formal agreement

with Mr. Livingstone on this subject. and we therefore will treat only

Mrs. Livingstone as Ceraso’s client.

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dismissal agreement, “importantly, whether the defendant

was counseled”). Mrs. Livingstone’s assertion that she did

not appreciate the release-dismissal agreement's ~-

implications is tantamount to a claim thai her attorney did

not give her accurate legal advice. It would be unfair to

allow her to make this ean without eaiarnog J a

opposing parties to investigate her attorney's version of the

relevant events. See United States v. Bilzerian, 926 F.2d

1285, 1292 (2d Cir.), cert. denied, 502 U.S. 813 (1991)

(holding that a party who asserts a claim that “in fairness

requires examination of protected communications” thereby

waives the attorney-client privilege as to those

communications). In the terms of the draft Restatement,

Mrs. Livingstone has effectively asserted that the advice

provided to her by her attorney is “relevant to the legal

significance of [her] conduct.” Accordingly, we find no error

in the district court's ruling that the attorney-client

privilege had been waived.”

D. Exclusion of Expert Testimony.

The Livingstones challenge the district court's decision, at

the voluntariness proceeding, to exclude the testimony of

their expert, John Peters, who had prepared a report

addressing the underlying lability of the police officers and

of Washington Township. Mrs. Livingstone’s attorney,

Ceraso, had testified that he had advised Mrs. Livingstone

to conclude a release-dismissal agreement because any

36. This fact distinguishes the present case from Rhone-Poulenc, in

which we found that a client who made reference to the advice of

counsel in seeking to establish his state of mind did not thereby waive

the attorney-client privilege as to that advice. In Rhone-Poulenc, only the

client's state of mind, and not the substance of counsel's advice, was an

explicit element of the relevant legal analysis. See $2 F.3d at 864. In

Rumery. by contrast, the Supreme Court made the advice of counsel an

explicit element of the voluntariness analysis.

37.We emphasize that this waiver is a limited one. See Greater

Newburyport Clamshell Alliance v. Public Service Company of New

Hampshire, 838 F.2d 13, 22 (1st Cir. 1968) (finding, after conducting a

balancing analysis, that the plaintifis had waived the attorney-client

privilege in some respects, but only as to information for which the

defendants had “shown a true need and without which they would be

unfairly prejudiced in their defense”).

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Sa NSE mb a. le RAN RG Lei rains Aik PMD be he

that she would recover in a subsequent civil sult

would have been largely, or completely, offset by the

that the police officers would recover, eo ames

that filed counterclaims. App. at 767. The plaintifis

sought to introduce Peters’ testimony in order to

demonstrate that Ceraso’s advice had been inaccurate. The

district court found that Peters’ testimony was inadmissible

under Rule 702, because it would not assist the trier of fact

to understand the evidence, and under Rule 403, because

of prejudice, confusion of the issues, misleading the jury,

and waste of time. App. at 777.

We will address only the district court’s application of

Rule 403, which we find was entirely appropriate. Peters’

report was quite likely to be prejudicial; it asserted, in

considerable detail, that Was n Township and the

police-officer defendants had violated Mrs. Livingstone’s

civil rights.™ A jury presented with a substantial amount of

information on the merits of an underlying civil rights

action might well look to those merits in making its

decision on the distinct — and distinctly different — issue

of voluntariness, thus creating a significant risk of

prejudice.

Rule 403 requires that a court balance the prejudicial

effect of proposed evidence against its probative value. If

evidence that a party to a release-dismissal agreement had

received improper legal advice is of sufficient probative

value, this analysis may well weigh in favor of admissibility.”

38. His report concluded, for instance, that Officer Monack “knew or

should have known that he was not propertly trained to use and/or carry

the Nova 5000 [etun gun].” App. at 635; that “Washington Township. . .

knew.or should have known that its police were not properly trained to

carry the Nova 5000,” and that this knowledge “amounted to deliberate

indifference,” App. at 634; that “Officer Monack fllegally re-entered the

Livingstone residence, after he left the house,” App. at 636; that “Officers

Monack, Snyder and Moody used unreasonable and excessive force on

Frances Livingstone.” App. at 640; and that “the charges filed against

Mrs. Livingstone were ‘cover charges’ to justify both her arrest and the

officers’ exceasive and unreasonable use of force.” App. at 647.

39. Otherwise, it would be difficult or impossible for a plaintiff to

establish that incorrect legal advice had rendered a release-dismissal

agreement involuntary.

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The probative value of Peters’ testimony was not, however,

high, as it did not engage Ceraso’s testimony directly.

Ceraso's advice to Mrs. Livingstone had addressed the net

award of damages that she could expect from her potential

civil suit against the police and their potential civil suit

against her. Peters’ report only barely touched on the

merits of a possible civil suit by the police against Mrs.

Livingstone, and did not discuss the likely award of

) in either suit.“ Thus, his testimony would not

have greatly helped the jury to understand the correctness

of Ceraso's advice.“

E. Exclusion of Trial Transcript.

At the trial of the voluntariness issue, counsel for the

Livingstones sought to introduce into evidence an exchange

between Heneks and Judge Cicchetti that occurred the day

before the release-dismissal agreement purportedly was

concluded. The district court found that this exchange was

not relevant, and excluded it. The Livingstones appeal this

ruling, asserting that Judge Cicchetti’s comments in the

exchange that they sought to introduce resembled his later

remarks at the release-dismissal colloquy, and that the

Livingstones might have been misled into believing that he

was simply repeating his earlier comments. We agree with

the district court's finding that this exchange is not

relevant. Judge Cicchetti’s comments in the portion of the

exchange presented to the district court, App. at 790, bore

little resemblance to his later comments at the release-

dismissal proceeding, Appellees’ App. at 32.

‘ is

qualifications of experts on police practices should be

scrutiny. See, e.g., Berry v. City of Detroit, 25 F.3d 1342, 1349 (6th Cir.

1994), cert. denied. 115 S. Ct. 902 (1995). The district court did not

reach the question of Mr. Peters’ qualifications to testify as an expert.

——S sn,

41

VI. Application of Piper hasan Law to the

As we noted in our discussion of the ural history

of this case, the district court dismi a number of the

tones’ state-law claims on grounds, such as the

statute of limitations, unrelated to the release-dismissal

agreement. The dismissal of those claims is not before us

on appeal. The remaining state-law claims included claims

of assault and battery against defendants Monack and

Snyder; a claim of intentional infliction of emotional

distress against defendants Monack, Snyder, and Moody:

and a claim of conversion against all defendants.

Neither the parties nor the district court have discussed

what standard lies to determine the enforceability of the

rel t as to the state-law claims.

Instead, they have apparently assumed that the standard

applicable to these claims is no different from that

applicable to section 1983 claims. This is not n

true; the question whether the Livingstones have waived

their claims under state law is itself one of state law, see

Livingstone I, 12 F.3d at 1210 n.6, and state law cannot be

assumed to parallel federal law on this question.

In Livingstone I, we observed that the courts of

Pennsylvania “frequently follow the principles set forth in

the Restatement [of Contracts],” id, and su ted that the

Penn Supreme Court melgt be to do as the

United States Supreme Court did in Rumery, and look to

the public-interest analysis in the Restatement of Contracts

to determine when it is appropriate to enforce a release-

dismissal agreement. See id. However, we did not then have

occasion to decide precisely what standard Pennsylvania

would apply to the enforcement of a release-dismissal

agreement. That question is now before us. Indeed, that

question subsumes two distinct estions: (1) What

standard would Pennsylvania courts likely to apply to

determine whether the enforcement of a release-dismissal

agreement is in the public interest? (2) What standard

would Pennsylvania courts be likely to apply to determine

the voluntariness of a release-dismissal agreement?

A. Public Interest

We have discovered no reported Pennsylvania cases

addressing the question of when, if ever, it is in the public

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interest to enforce a release-dismissal agreement. Our

analysis of the caselaw and policies of the Commonwealth

of Pennsylvania has persuaded us, however, that the

Supreme Court of Pennsylvania would apply a public-

interest standard resembling that applied under federal

law.

The courts of Pennsylvania have long declined to enforce

contracts that are contrary to public policy. See, e.g., Kuhn

v. Buhl, 96 A. 977 (Pa. 1916) (finding unenforceable as

against public policy an agreement between bidders for

public lands under which one of them would, in exchange

for a fee, withdraw its bid). After Kuhn, the Supreme Court

of Pennsylvania accepted the standard set forth in section

320(1) of Tentative -Draft No. 12 of the Restatement

(Second) of Contracts (March 1, 1977) as its standard for

the nonenforcement of contracts as against public policy.

See Central Dauphin School District v. American Casualty

Co., 426 A.2d 94, 96 (Pa. 1981). Section 320(1) of the

Tentative Draft was to emerge (with one minor stylistic

alteration not relevant here) as Section 178(1) of the

Restatement (Second) as finally adopted. It provides that

“a] promise or other term of an agreement is unenforceable

on grounds of public policy if legislation provides that it is

unenforceable or the interest in its enforcement is clearly

outweighed in the circumstances by a public policy against

the enforcement of such terms.” Restatement (Second) of

Contracts § 178(1) (1981). We may reasonably conclude —

as the Pennsylvania Superior Court has already concluded,

see Donegal Mutual Insurance Co. v.- Long, 564 A.2d 937,

942 (Pa. Super. 1989) — that the Pennsylvania Supreme

Court, having accepted tentative section 320(1) in Central

Dauphin, would now accept permanent section 178(1).

In Rumery, the Supreme Court drew upon section 178(1)

to fashion its federal common-law rule that a release-

dismissal agreement will be unenforceable “if the interest in

its enforcement is outweighed in the circumstances by a

public policy harmed by enforcement of the agreement.”

Rumery, 480 U.S. at 392 & n.2. We think that the

Pennsylvania Supreme Court would not only draw on

section 178(1) in considering the enforceability of a release-

dismissal] agreement but, in construing that section's open

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Commonwealth's statutes and common law. The

Pennsylvania Supreme Court has treated Pennsylvania's

common law as an important instrument for curbing official

misconduct, paralleling at the level of state law the United

States Supreme Court's view of the policies un

section 1983. See, e.g. Supervisors of Lewis Township v.

Employers Mutual Casualty Co., 523 A2d 719, 722 (Pa.

1987) (finding that permitting insurance coverage of willful

or fraudulent conduct on the part of a public official is

contrary to Pennsylvania law and public policy, as personal

financial Hability is intended to deter official misconduct).

We therefore conclude that the Pennsylvania Supreme

Court would subject agreements that purport to waive tort

ability to at least as careful scrutiny as the United States

Supreme Court has applied to agreements purporting to

waive liability under section 1983.

The Livingstones argue that the law of the

Commonwealth of Pennsylvania strictly limits the private

resolution of criminal charges. In support of this claim,

they cite Pennsylvania Rule of Criminal Procedure 314, a

rule permitting a form of court-supervised settlement in

certain types of criminal cases. That rule provides:

When a defendant is charged with an offense which is

not alleged to have been committed by force or violence

or threat thereof, the court may order the case to be

dismissed upon motion and a showing that:

(a) the public interest will not be adversely affected:

(b) the attorney for the Commonwealth consents to

the dismissal;

(c) satisfaction has been made to the aggrieved

person or there is an agreement that satisfaction will

be made to the aggrieved person;

(d) there is an agreement as to who shall pay the

costs.

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Pa. R. Crim. P. 314. The Livingstones assert that the fact

that this rule does not permit settlements in the case of

offenses “alleged to have been committed force or

violence or threat thereof” implies that such ts are

disfavored, or perhaps prohibited, under Pennsylvania law.

We are not persuaded that Rule 314 demonstrates that

Pennsylvania would not permit release-dismissal

agreements in other situations. A prosecutor who has

sound public-interest reasons for declining to go forward

with a prosecution, or for terminating a prosecution after it

has begun, must have the authority to do so. As a corollary

of this authority, a prosecutor presumably also has the

authority to condition a dismissal on some undertaking by

the defendant.”

We find, however, that Rule 314 demonstrates that the

courts of Pennsylvania would be likely to subject release-

dismissal agreements to close scrutiny. Further, the fact

that Rule 314(a) requires that a judge determine that “the

public interest will not be adversely affected” by a dismissal

demonstrates the Commonwealth's commitment to

reviewing release-dismissal agreements for their impact on

the public intcrest. The Pennsylvania courts heve also read

Rule 314’s limitations on the circumstances in which

criminal prosecutions may be dismissed to indicate that

“the law does not favor out-of-court compromise over

prosecution.” Commorwealth v. Pettinato, 520 A.2d 437,

439 (Pa. Super. 1987) (concluding that an offer from a

criminal defendant to pay a complainant a fee in exchange

for her agreement not to testify was admissible into

evidence in the defendant's criminal trial; because Rule 314

42. Consider what would occur if a case like Rumery arose in the

Commonwealth of Pennsylvania. Rumery had been charged with witness-

tampering. Because he had allegedly threatened the witness with death.

this was an offense “committed by force or violence or threat thereof”:

thus, Rumery would not have been entitled to a dismissal under Rule

314. Nevertheless, given the strength of the public interests cited by the

Rumery Court as supporting enforcement of the release-dismissal

agreement in that case, we predict that the Pennsyivania Supreme Court

would conclude that Rule 314 does not deprive prosecutors of the power

to conclude release-dismissal agreements in at least some situations

trvolving violent crimes.

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strictly limits consensual dismissals in criminal cases, the

civil rule of evidence barring the admission of offers of

settlement into evidence did not apply).

In summary, then, we find that Pennsylvania would be

likely to permit release-dismissal agreements to be enforced

in some cases, but would monitor them closely to ensure

that their enforcement is in the public interest. The federal

rule, which places the burden of proving that a release-

dismissal agreement is in the public interest on those

see to enforce the t, has the same goals.

Penn would therefore be likely to apply a very

similar rule.

B. Voluntariness

The Court observed in Rumery that private citizens are

permitted to waive their constitutional ts in many

circumstances. For instance, criminal endants may

waive constitutional rights through plea bargaining, and

the resul agreements are ordinarily enforced if they are

voluntary. Voluntary release-dismissal agreements, Rumery

prgwv} should therefore also be permitted. See 480 U.S.

at .

Pennsylvania, too, permits plea . See, 2.9.,

Commorwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993),

and will uphold a guilty plea if it is knowing and voluntary,

see Commonwealth v. Alston, 373 A.2d 741, 743 (Pa. 1977).

We believe that the Pennsylvania Supreme Court would be

likely to follow a line of logic similar to that of the Court in

Rumery, and permit release-dismissal agreements upon a

showing of voluntariness.

However, we anticipate that the Pennsylvania Supreme

Court would be very attentive to how the voluntariness of a

release-dismissal agreement is established. Such judicial

attentiveness would be called for both because of the

danger that such agreements will be concluded in improper

circumstances, and because Pennsylvania has a policy of

declining to enforce contracts concluded under duress or

threat of prosecution. See, e.g., Germantown Mfg. Co. v.

Rawlinson, 491 A.2d 138, 143 (Pa. Super. 1985) (applying

a rule that threats of criminal prosecution constitute

duress rendering a contract voidable, and stating: “It is an

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affront to our judicial sensi{bilities that one person's ability

to seek another's prosecution can be bartered and sold the

game as commodities in the market place. It is even more

repugnant when the foul stench of oppression pervades the

transaction.”). For reasons we have already discussed, the

voluntariness of oral release-dismissal agreements is

especially likely to be ee sane yprececly because

such agreements are not a writing—

determinations of the voluntariness pe such Ba are

particularly likely to be unreliable. See at 31 - 36.

Accordingly, we predict that ‘the Supreme

Court, when faced with the question, will subject the

voluntariness of oral release-dismissal agreements to a

heightened standard of proof, and we therefore conclude

that the voluntariness of the release-dismissal agreement

now before us must be demonstrated by clear and

convincing evidence.

VO. Conclusion.

For the reasons set forth above, we will vacate the

judgment of the district court and remand for further

proceedings in accordance with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

Sor the Third Circuit

Filed August 14, 1996

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-3252

FRANCES E. LIVINGSTONE and JOSEPH A.

LIVINGSTONE, her husband,

Appellants

Vv.

NORTH BELLE VERNON BOROUGH; FAYETTE CITY

BOROUGH: WASHINGTON TOWNSHIP; FRANK E.

MONACK, JR., individually and in his capacity as officer

of WASHINGTON TOWNSHIP; OFFICER RAYMOND

MOODY, individually and in his capacity as officer for

FAYETTE CITY BOROUGH; OFFICER DARHL SNYDER,

individually and in his capacity as an officer for NORTH

BELLE VERNON BOROUGH

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. No. 91-00059

Argued January 25, 1996

Before: COWEN and SAROKIN, Circuit Judges and

POLLAK, District Judge*

* Honorable Louis H. Pollak. United States District Judge for the

Eastern District of Pennsylvania. sitting by designation.

47A

ORDER AMENDING SLIP OPINION

It is hereby ordered that the slip opinion in the above-

entitled appeal filed July 31, 1996 be amended in

accordance with the following.

On page 9, the second full paragraph should read:

With this bac und history as predicate, the court

in Livingstone I then proceeded to review the elements

of proof for a showing of voluntariness, finding that the

parties seeking to enforce the _ release-dismissal

agreement bore the burden of sh that the

stones’ assent was “voluntary, te and

informed.” 12 F.3d at 1211. We concluded that the

defendants had not met this burden with the certainty

called for on summary judgment, given that Mrs.

Livingstone was confused as to the terms of the release-

dismissal arrangement, that the claimed release-

dismissal agreement was never written down, and that

the asserted agreement — assuming there was a

meeting of the minds — was made, if at all, during a

brief and ambiguous oral colloquy. See id. at 1211-14.

Accordingly, we reversed the grant of summary

judgment and directed that the case be remanded for

further proceedings.

On page 16, the first paragraph should read:

The Livingstones also question whether North Belle

Vernon Borough and Fayette City Borough — which we

will refer to, for brevity, as “the two boroughs” — had

the same status under the release-dismi agreement

as did Washington Township. In the voluntariness

proceeding in the district court, counsel for the

Livingstones had requested that a specific question on

the verdict form address the status of the two boroughs

under the agreement. The district court declined to

include such a question on the form, finding that

Ceraso’s statements in the colloquy before Judge

Cicchetti included all three municipalities, and that all

3

three therefore had the same status for purposes of the

voluntariness question. In response to the objections of

the Livingstones’ counsel to this ruling. the district

court permitted him to argue to the jury that the

ambiguous nature of the agreement between the

tones and the two boroughs rendered the

release-dismissal agreement involuntary as a whole.

App. at 804-06.

The last paragraph on page 45 continuing on to page 46

should read:

However. we anticipate that the Pennsylvania

Supreme Court would be very attentive to how the

voluntariness of a _ release-dismissal agreement is

established. Such judicial attentiveness would be called

for both because of the danger that such agreements

will be concluded in improper circumstances, and

because Pennsylvania has a policy of declining to

enforce contracts concluded under duress or threat of

prosecution. See, e.g., Germantown Mfg. Co. v.

Rawlinson, 491 A.2d 138, 143 (Pa. Super. 1985)

(applying a rule that threats of criminal prosecution

constitute duress rendering a contract voidable, and

stating: “It is an affront to our judicial sensibilities that

one person's ability to seek another's prosecution can

be bartered and sold the same as commodities in the

market place. It is even more repugnant when the foul

stench of oppression pervades the transaction.”). For

reasons we have already discussed, the voluntariness of

oral release-dismissal agreements is especially likely to

be problematic, and — precisely because such

agreements are not evidenced by a writing —

determinations of the voluntariness of such agreements

are particularly likely to be unreliable. See supra at 31-

36. Accordingly, we predict that the Pennsylvania

Supreme Court, when faced with the question, will

subject the voluntariness of oral release-dismissal

agreements to a heightened standard of proof, and we

therefore conclude that the voluntariness of the release-

dismissal agreement now before us must be

demonstrated by clear and convincing evidence.

BY THE COURT:

/s/ Louis H. Pollak

District Judge

DATED: August 14, 1996

A True Copy:

Teste:

Clerk of the United States Court of Appeals

jor the Third Circuit

SOA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRANCES E. LIVINGSTONE and )

JOSEPH A. LIVINGSTONE, her _ )

husband, )

Plaintiffs, )

v. ) Civil Action 91-59

)

NORTH BELLE VERNON )

BOROUGH, FAYETTE CITY )

BOROUGH, WASHINGTON )

TOWNSHIP, FRANK E. )

MONACK, JR., individually )

and in his capacity as Officer )

of Washington Township, )

RAYMOND MOODY, individually )

and in his capacity as Officer )

for FAYETTE CITY BOROUGH )

and DARHL SNYDER, )

individually and in his capacity )

as an Officer for NORTH )

BELLE VERNON BOROUGH, )

Defendants. )

ORDER OF COURT

AND NOW, this 27th day of March, 1995,

IT IS ORDERED that the plaintiffs’ motion for a new

trial and/or judgment N.O.V. and/or motion to amend or modify

judgment, be and hereby is denied for the reasons set forth of

record.

(s)

Donald E. Ziegler

Chief Judge

cc: Counsel of record.

51A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRANCES E. LIVINGSTONE and )

JOSEPH A. LIVINGSTONE, her _)

husband, )

Plaintiffs, )

v. ) Civil Action 91-59

)

NORTH BELLE VERNON )

BOROUGH, FAYETTE CITY )

BOROUGH, WASHINGTON )

TOWNSHIP, FRANK E. )

MONACK, JR., individually )

and in his capacity as Officer )

of Washington Township, )

RAYMOND MOODY, individually )

and in his capacity as Officer )

for FAYETTE CITY BOROUGH )

and DARHL SNYDER, )

individually and in his capacity )

as an Officer )

Defendants. )

ORDER

AND NOW, this 27th day of January, 1995, after

consideration of the submissions of the parties,

IT IS ORDERED that the motion of plaintiffs, Frances

E. Livingstone and Joseph A. Livingstone, for partial summary

judgment (document number 93) be and hereby is denied.

IT IS FURTHER ORDERED that the motions of

defendants, North Belle Vernon Borough, Fayette City

Borough, Washington Township, Frank Monack, Jr., Raymond

Moody and Darhl Snyder, for partial summary judgment

(document numbers 100, 102 and 105), be and hereby are

granted.

S2A

Donald E. Ziegler

Chief Judge

cc: Counsel of record

534A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRANCES E. LIVINGSTONE and )

JOSEPH A. LIVINGSTONE, her __)

husband, )

Plaintiffs, )

v. ) Civil Action 91-59

)

NORTH BELLE VERNON )

BOROUGH, FAYETTE CITY )

BOROUGH, WASHINGTON )

TOWNSHIP, FRANK E. )

MONACK, JR., individually )

and in his capacity as Officer )

of Washington Township, )

RAYMOND MOODY, individually )

and in his capacity as Officer )

for FAYETTE CITY BOROUGH _)

and DARHL SNYDER, )

individually and in his capacity )

as an Officer )

Defendants. )

OPINION

ZIEGLER, Chief Judge

Pending before the court is the motion of plaintiffs,

Frances and Joseph Livingstone, for partial summary judgment.

Also pending are the cross motions for partial summary

judgment filed by defendants, North Belle Vernon Borough,

Washington Township, Fayette City Borough, Frank Monack,

Jr., Officer Raymond Moody and Officer Darhl Snyder.

Because all parties have moved for partial summary

judgment, we must evaluate the motions separately and, in each

instance, draw factual inferences most favorable to the opposing

party. Arnold Pontiac-GMC, Inc. v. General Motors Corp., 700

F.Supp. 838 (W.D.Pa. 1988); accord L.L. Bean, Inc. v. Drake

54A

Publishers, Inc., 811 F.2d 26 (ist Cir. cert. denied, 483 U.S.

1013 (1987) (citation omitted). We must grant summary

judgment if we find that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. Fed.R.Civ.P. 56(c).

This civil action arises from an incident in which

defendant police officers responded to a domestic complaint

involving plaintiffs, their daughter and her child. As a result of

an altercation which arose between Mrs. Livingstone and the

police officers, Mrs. Livingstone was arrested and charged with

disorderly conduct, aggravated assault, terroristic threats,

resisting arrest and interference with child custody. Attorney

Thomas Ceraso, a highly regarded criminal defense lawyer,

represented Mrs. Livingstone throughout the criminal

proceedings. On the third day of trial, a release-settlement

agreement was executed whereby the criminal case against Mrs.

Livingstone would be dismissed upon motion for judgment of

acquittal by Mr. Ceraso in exchange for a mutual release of any

civil claims and an agreement by the municipalities to pay Mrs.

Livingstone’s expenses and reasonable medical costs.

We note that summary judgment was previously granted

in this action based on the release-settlement agreement. The

Court of Appeals reversed because it found that there was a

genuine issue of material fact as to whether Mrs. Livingstone’s

assent to the agreement was voluntary. Livi

Belle Vernon Borough, 12 F.3d 1205 (3d Cir. 1993).

Plaintiffs now contend that the agreement is invalid and

therefore unenforceable because it was never formally ratified

by the municipalities. We disagree and therefore was will grant

partial summary judgment in favor of defendants for the

reasons that follow.

Defendants contend that since plaintiffs failed to submit

the bills for property damage and medical costs, the

municipalities were unable to approve the expenditure.

Defendants maintain that the appropriation would have been

approved if plaintiffs had submitted the bills. Plaintiffs do not

55A

dispute that the bills were never submitted to either attorney

Ceraso or the township supervisors for approval. In addition,

there is no evidence that the township was unwilling or fiscally

unable to satisfy the agreement. In our view, plaintiffs’ failure

to forward the relevant information was a material breach of a

condition of the contract which was necessary for defendants to

perform. See e.g. Restatement (Second) of Contracts $ 237

cmt. a (1981). Here, the agreement was not reduced to writing;

however a transcript of an in camera colloquy is available which

reveals the terms of the contract. Mr. Ceraso stated on the

record that Washington Township would arrange for payment

of reasonable medical bills together with bills reflecting the

damage incurred at the Livingstones’ household after attorney

Ceraso forwarded the bills to Washington township. The

transcript establishes that the parties intended that plaintiffs

were required to submit their bills before payment could be

effected. We find that plaintiffs’ cooperation in providing the

relevant information was necessary to defendants’ duty to

approve and disburse the payments to plaintiffs. Plaintiffs

concede that the public fisc cannot be allocated for an

indefinite amount to a private party, and plaintiffs have offered

no explanation for their failure to submit the bills. We

conclude that plaintiffs breached their duty of good faith and

fair dealing. See Restatement (Second) of Contract § 205.

Because plaintiffs rendered performance by defendants

impossible, we will preclude them from taking advantage of

their own material breach to invalidate the underlying

agreement.

Next, plaintiffs argue that the agreement is void as

against public policy. First, the Livingstones contend that the

agreement is contrary to Rule 314 of the Pennsylvania Rules of

Criminal Procedure. The rule provides that, upon showing of

four criteria, a court may order a case to be dismissed when a

defendant is charged with an offense which does not involve

force or violence or threat thereof. Pa.R.Crim.P., Rule 314, 42

Pa.C.S.A. Plaintiffs contend that the rule should not have been

utilized because the charges against Mrs. Livingstone included

resisting arrest and assaulting a police officer, which, by their

nature, are committed by force or violence. We reject plaintiffs

S6A

argument because the record is clear that the case was

dismissed upon a motion for judgment of acquittal by attorney

Ceraso under Rule 1124 of the Pennsylvania Rules of Criminal

Procedure. We therefore need not consider whether the

dismissal met the requirements under Rule 314.

Plaintiffs also contend that the agreement does not meet

the requirements of Town of Newton v. Rumery, 480 U.S. 386

(1987), in which the Supreme Court considered the validity of

release-dismissal agreements. The Court held that such

agreements must meet three requirements in order to be

enforceable. They must be executed voluntarily, free from

prosecutorial misconduct and may not offend the relevant

public interest. Id. at 380. The Court of Appeals has already

determined that the voluntariness of Mrs. Livingstone’s assent

is a genuine issue of material fact in this case and we are

precluded from summarily deciding that issue at this juncture.

Whether the agreement is a result of prosecutorial misconduct

or is contrary to the public interest are appropriate issues for

summary judgment. See Hill v. City of Cleveland, 12 F.3d 575,

579 (6th Cir. 1993).

Here, there is no evidence of prosecutorial overreaching.

The charges against Mrs. Livingstone were filed the day after

the incident. The charges also correspond to the relevant

conduct of Mrs. Livingstone according to the statement taken

from Carrie Livingstone, and the affidavit which supports the

complaint. In fact, for reasons which are not stated, the

complaint against Mrs. Livingstone was amended at the

preliminary hearing to reduce the charge of aggravated assault

to simple assault. Finally, discussions of settlement were

initiated after nearly three days of testimony in the criminal

trial. We find that there is no evidence of prosecutorial

misconduct under the circumstances.

We also conclude that the release-settlement agreement,

if voluntarily executed, does not offend the public interest. The

standard for determining whether a release meets the public

interest is an objective one, based on facts known to the

prosecutor when the agreement was reached. Cain v. Darby

S7A

Borough, 7 F.3d 377 (3d Cir. 1993). The Court in Rumery

recognized that there can be a legitimate law enforcement

interest in preventing the public fisc from being wasted by

defending frivolous lawsuits. If the prosecutor’s actual

motivation in allowing the dismissal of criminal charges was to

avoid the time and expense of defending a marginal or frivolous

lawsuit, the public interest is served. See Cain v. Darby

Borough, 7 F.3d 377, 381 (3d Cir. 1993).

Here, Judge Cichetti, who presided over the criminal

trial against Mrs. Livingstone and who supervised the execution

of the release-settlement agreement, stated in the colloquy that

he was supportive of the agreement because he saw no benefit

to a criminal trial and that it was in everyone’s best interest to

resolve the matter. Mr. Heneks, the assistant district attorney

who was assigned to the case stated that he believed that the

Commonwealth would be well-served by the resolution as well.

Later, in a sworn statement, Mr. Heneks indicated that

continuation of the criminal trial would have created further

conflict between the Livingstones and their daughter who had

reconciled their differences since the night of the incident. In

addition, he stated that the agreement saved the

Commonwealth from spending further resources to prosecute.

The reasons state by Mr. Heneks are factors which were known

to him at the time the agreement was executed. In the absence

of evidence that the motivation was improper, we may accept

his explanation. In addition, each reason constitutes an

independent, legitimate reason which is directly related to his

prosecutorial responsibilities. See Rumery, 480 U.S. at 398.

Having found no genuine issue as to any material fact

the issue of the validity of the agreement and drawing the

factual inferences in the light most favorable to plaintiffs, as we

must, we will grant partial summary judgment in favor of

defendants.

We have considered the remaining contentions of

plaintiffs and find them without merit. An appropriate order

will follow.

58A

Dated: January 27, 1995

Donald E. Ziegler

Chief Judge

cc: Counsel of record

59A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRANCES E. LIVINGSTONE and )

JOSEPH A. LIVINGSTONE, her _ )

husband, )

Plaintiffs, )

v. ) Civil Action 91-59

)

NORTH BELLE VERNON )

BOROUGH, FAYETTE CITY )

BOROUGH, WASHINGTON )

TOWNSHIP, FRANK E. )

MONACK, JR., individually )

and in his capacity as Officer )

of Washington Township, )

RAYMOND MOODY, individually )

and in his capacity as Officer )

for FAYETTE CITY BOROUGH _)

and DARHL SNYDER, )

individually and in his capacity )

as an Officer for NORTH )

BELLE VERNON BOROUGH, __)

Defendants. )

—s

Report and Recommendation

Recommendation:

It is respectfully recommended that the supplemental

motion to dismiss and/or for summary judgment brought by

Washington Township and Officer Frank E. Monack, Jr.

(Docket No. 47) and the motion for summary judgment

submitted on behalf on North Belle Vernon Borough and

Officer Darhl Snyder (Docket No. 51) be granted as to Counts

Ill, [TV and V and denied as to all other claims, and that the

motion to dismiss and/or for summary judgment filed by Fayette

City Borough and Officer Raymond Moody (Docket No. 56) be

granted as to Counts II, III, IV and V and denied as to all other

claims.

60A

Report:

Presently before the Court for disposition are motions

to dismiss and/or for summary judgment brought by defendants

Fayette City Borough and its Chief of Police, Raymond Moody,

and Washington Township and its Chief of Police, Frank E.

Monack, Jr.', as well as a motion for summary judgment

submitted on behalf of North Belle Vernon Borough and its

police officer, Darh! Snyder.

The plaintiffs, Frances E. Livingstone and Joseph A.

Livingstone, her husband, commenced this action against the

defendant municipalities and police officials for allegedly

violating their civil rights on the evening of January 12-13, 1989,

when Monack, Moody and Snyder responded to a domestic

dispute at the plaintiffs’ residence in Belle Vernon,

Pennsylvania. At the time of the events in question, the

plaintiffs’ twenty-one year old daughter, Carrie Livingstone, and

her fourteen-month old son were residing with the plaintiffs in

their home. During the late evening hours of January 12, 1989,

a disturbance erupted at the plaintiffs’ residence between the

plaintiffs and their daughter during which Joseph Livingstone

struck his daughter causing her to sustain facial injuries. Carrie

then informed her parents that she intended to take her son

and leave the plaintiffs’ home. When the plaintiffs refused to

permit Carrie to take her son, she exited the residence and

proceeded to the community ambulance service station across

the street from the house. There, the police were summoned,

and Officer Monack of the Washington Township police

department arrived and was informed of the events.

When Carrie made arrangements to stay at the home of

a friend, Officer Monack summoned assistance to aid him in

securing Carrie’s child. In response to Monack’s request,

Officer Snyder of North Belle Vernon and Chief Moody of

' At the time of the incident in question, Monack was an

officer in the Washington Township Police Department.

61A

Fayette City arrive? | Monack, Snyder and Moody then

proceeded to the Livingstone residence to remove the child.

At the Livingstone residence, Mr. Livingstone invited the

officers in. After a brief discussion, the officers accompanied

Mr. Livingstone outside, and he agreed to go to the police

station to make a statement. The officers then reentered the

plaintiffs’ home without a warrant or court order for the

purpose of removing the child, whereupon Mrs. Livingstone

locked herself in a back bedroom with the child. Officer

Monack picked the lock on the door and tried opening it, but

Mrs. Livingstone hit him with a fishing rod and scratched him.

Monack and Snyder then broke down the door and arrested

Mrs. Livingstone.

During the course of the arrest, force was employed to

restrain Mrs. Livingstone. She avers that Monack and Snyder

both struck her, causing her to lose consciousness and sustain

bruises, lost teeth and head injuries; that Monack told her "you

want a thrill, Pll give you a thrill” and applied a stun gun

between her legs; and that after she was handcuffed, the

officers dragged her outside, dropped her several times and

banged her head, and then left her lying in cold muddy waters

for hours.

On January 13, 1989, Mrs. Livingstone was charged with

disorderly conduct, aggravated assault, “terroristic threats,

resisting arrest and interference with custody by Officer

Monack. After a probable cause hearing the matter was

referred to the Court of Common Pleas where it came to trial.

On the third day of trial the court entered an Order dismissing

the case as a result of an oral settlement agreement ("the

2 The defendant municipalities were party to an

"Intermunicipal Police Coorperation Agreement” (See: Joint

Appendix, Exhibit A) which is discussed more fully herein.

62A

settlement") allegedly entered into by the parties.

In their instant complaint, the plaintiffs assert causes of

action against all defendants for violations of their civil rights

(Count I) and conversion (Count VII). They also bring

supplemental claims against Monack, Moody and Snyder for

assault and battery (Count II), malicious prosecution (Count

Ii), malicious abuse of process (Count IV), invasion of privacy

(Count V) and intentional infliction of mental distress (Count

VI).

The defendants have filed motions to dismiss and/or for

summary judgment, which the Court will treat as motions for

summary judgment.‘ Summary judgment is appropriate where

there are no material factual issues in dispute and the movant

is entitled to judgment as a matter of law. Travitz v. Northeast,

13 F.3d 704 (3d Cir. 1994).

With respect to the plaintiffs’ claim in Count I for

violations of their civil rights, the municipalities argue that the

plaintiffs have failed to establish the existence of a policy or

custom that its officers executed which caused the plaintiffs’

* The nature and scope of that "settlement" are discussed

more fully in Livi 12

F.3d 1205 (3d Cir. 1993), where the Third Circuit vacated this

Court’s Order of April 24, 1992 which granted all defendants’

motions for summary judgment based upon the settlement and

remanded the matter for further proceedings. In light of the

Third Circuit’s conclusion that a material question of fact exists

as to whether the plaintiffs’ assent to the settlement was

voluntary, deliberate and informed, we now consider other

defenses raised by the defendants.

‘ Federal Rule of Civil Procedure 12(b)(6) provides that

where on a motion to dismiss, matters outside the complaint are

considered, the motion should be treated as one for summary

judgment. Here, the parties have submitted extensive relevant

documentation in support of their respective positions.

63A

Sa Soe

s = Se a ov. sn WF SS Wctha! BPR BE i Wi se wy wt ee

harm. In the complaint at paragraph 28, the plaintiffs have

alleged that the municipalities established and pursued the

following policies o: sustoms: (a) "encourag[ing] the utilization

of criminal process to coerce the surrender of civil rights”; (b)

"failing to properly educate, train or otherwise inform their

officers of the basic requirements of law concerning the need

for search warrants, arrest warrants...and/or forcing child

custody transfers"; (c) "failing to provide appropriate training

and/or instruction...in the utilization of force, particularly the

application of high voltage stun guns to citizens"; and (d)

"encouragjing] the instant conduct, by failing to take any

disciplinary action whatsoever...[and ratifying the wrongful

conduct] by the promotion of defendant Officer Monack to the

position of Chief of Police."

The Supreme Court has held that a municipality may be

held liable under section 1983 where conduct pursuant to its

policy or custom causes a constitutional violation. Monell v.

Department of Social Services of the City of New York, 436

U.S. 658, 691 (1978). A municipality may be held liable fore

inadequate police training if its failure to train amounts to a

deliberate indifference to the rights of people with whom its

police come in contact. City of Canton, Ohio v. Harris, 489

U.S. 378, 388 (1989). "To meet the deliberate indifference

standard, the failure to train must reflect a deliberate or

conscious choice made by the city policymakers." Fagan v. City

of Vineland, No. 92-5481, et al., slip op. at 16 (3d Cir. April 29,

1994), citing City of Canton, supra, 489 U.S. at 389. "[A]

plaintiff must also show that the city’s policy actually caused a

constitutional injury." Id.

At the time of the events in question, the defendant

municipalities were party to an Intermunicipal Police

Cooperation Agreement ("Police Agreement”) so as to establish

mutual aid or assistance in police protection.’ The Police

Agreement provides that when a participating municipality

places a call for police assistance, officers from other

5 See, Joint Appendix, Exhibit A.

64A

participating municipalities may be transferred for duty in the

municipality requesting the assistance. When officers from

other municipalities are summoned for assistance, as occurred

here (i.¢., Office Monack of Washington Township requested

assistance and was aided by Officer Moody of Fayette City

Borough and Officer Snyder of North Belle Vernon Borough),

their duty is to follow the instructions and lead of the officer

whose township they are in, thereby adhering to that township’s

policies.* In this case then, Officers Moody and Snyder were

obligated to follow the instructions of Officer Mcuack

concerning their police duties.” Thus, it would appear that the

defendant municipalities maintained a policy, pursuant to the

Police Agreement, whereby they agreed to accept and abide by

the practices of the township that summoned their officers.

According to Robert Matthews, the Chief of Police of

Washington County at the time of the incident, when domestic

disputes arise involving the custody of a child, Washington

County police follow a policy of going into a home, taking the

child, and giving it to its mother, regardless of the child’s

welfare.* Mr. Matthews did not say that the township’s policy

required an officer to secure a search warrant or arrest warrant

or obtain legal authority before entering a home, and as

discussed above, the officers entered the plaintiffs’ home

without having obtained a warrant or court order.

The record also shows that none of the defendant

municipalities had a training program to instruct its officers on

how to use a stun gun. This was so even though the

municipalities’ police departments issued stun guns to its

officers. An officer’s only guide on how to use the stun gun was

gleaned from reading the instructions that came with the

* See, deposition of Frank Monack, Jr. at pp 46-53.

a

* See, transcript of criminal trial at pp. 176-179.

65A

device? or from having another officer explain how it

worked.'® Officer Monack admitted that he had difficulties in

utilizing the device prior to this incident."

Based upon its failure to train officers to properly utilize

stun guns, a reasonable jury could find that the municipalities

were deliberately indifferent to the plaintiffs’ civil rights.

Likewise, material questions of fact exist as to whether: (1) the

aforementioned policy of Washington Township in handling

domestic disputes involving child custody led to conduct which

violated the plaintiffs’ constitutional rights, and (2) whether the

other defendant municipalities are liable for the conduct of its

officers, pursuant to its policy of adhering to the police

practices of Washington Township.”

As to the defendant officers, the plaintiffs bring this

action against them in their individual and official capacities.

The Supreme Court has made it clear that state officials sued

in their individual capacities are "persons" for purposes of §

1983 liability. Hafer v. Melo, 112 S.Ct. 358, 360 (1991). The

crux of the plaintiffs’ civil rights claim in Count I is that the

° See, Monack deposition at pp. 18-25.

10 See, Deposition of Darhl Snyder at pp. 10-11.

11 See, Monack deposition at pp. 26-27.

12 We note that municipal liability may attach even if a

municipality’s policy is constitutional, Canton of Ohio, 489 US.

at 386-87, and if its officer is not liable. Vv

Vineland, No. 92-5481, et al., slip op. at 16-19 (3d Cir. April 29,

1994). However, municipalitites are immune from punitive

damages in section 1983 claims, City of Newport v. Fact

Concepts, Inc., 453 U.S. 247 (1981), and so the plaintiffs’

request for punitive damages as to the defendant municipalities

should be stricken. Likewise, Mr. Livingstone’s claim for loss of

consortium in Count I should be stricken. Quitmeyer v.

SEPTA, 740 F.Supp. 363 (E.D.Pa. 1990)

66A

defendants used excessive and unreasonable force upon Mrs.

Livingstone; that the entered the plaintiffs’ premises without a

warrant or legal authority and conducted an improper search

and seizure; and that they engaged in malicious prosecution and

abuse of process by bringing false charges against Mrs.

Livingstone in an effort to secure a release from the plaintiffs,

including their promise that no legal action would be taken

against the defendants.

In Graham _v. Connor, 109 S.Ct. 1865 (1989), the

Supreme Court held that an excessive force claim arising out of

an Officer’s arrest or investigatory stop of a free citizen is most

properly analyzed under the Fourth Amendment’s "objective

reasonableness” standard. The Graham Court explained that

the "reasonableness" inquiry is an objective one:

the question is whether the officers’ actions are

‘objectively reasonable’ in the light of the facts

and circumstances confronting them, without

regard to their underlying intent or motivation.

109 S.Ct. at 1872.

Here, there is a genuine issue of material fact in dispute as to

whether Officers Monack and Snyder used excessive and

unreasonable force in effecting Mrs. Livingstone’s arrest."

Likewise, there is a material question of fact in dispute

as to whether the actions of Monack and Snyder and those of

Officer Moody violated the plaintiffs’ Fourth Amendment

privacy rights. While Mr. Livingstone consented to the officers

entry into his residence for the purpose of discussing his dispute

with his daughter", he neither consented to a full blown

search of his home, nor consented to the officers re-entering his

3 See, Deposition of Frances Livingstone at pp. 55-73 and

104.

4 See, transcript of criminal trial at p. 219.

67A

a

residence after they walked outside with him.”

In addition, it is well recognized that an arrest without

probable cause is a constitutional violation actionable under

§1983. Radich v. Goode, 886 F.2d 1391, 1395 (3d Cir. 1989).

Probable cause exists when the facts and circumstances are

sufficient to lead a reasonable officer to believe that the suspect

had committed an offense. Id. at 1395-1396. In incidents

involving warrantless arrests, as here, the reasonableness of a

police officers probable cause determination is generally a

question for the trier of fact. Losch v. Borough of Parkesburg,

Pa., 736 F.2d 903, 909 (3d Cir. 1984). Thus, the defendants’

instant motions should be denied as to Count I."

With respect to the assault and battery claim in Count

II, only Officer Moody has moved for summary judgment. The

record fails to show that Officer Moody had any involvement in

the physical altercation with Mrs. Livingstone, and he did not

assist Officers Monack and Snyder in carrying Mrs. Livingstone

from her home. Likewise, no evidence indicates that he

threatened or intimidated her. The crux of this claim as to

Moody is that he failed to intervene in the alleged misconduct.

It is clear, however, that Moody cannot be held liable

for failing to come to Mrs. Livingstone’s aid while allegedly

condoning the acts of Monack and Snyder. As the Third Circuit

held in Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990):

[I]n the context of police action, an official’s

mere -- and even callous -- inaction in the face

of subordinate officers’ unconstitutional actions

1S Id. at pp. 220-221, 236 and 245-46.

16 Although the police officials argue otherwise, we cannot

Say as a matter of law that they are entitled to qualified

immunity, for based upon the evidence of record, a trier of fact

could determine that their conduct violated clearly established

law.

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clearly does not suffice to render the official

liable for those actions.

Since the record fails to show that Officer Moody engaged in

such tortious conduct, his instant motion should be granted as

to Count II.

In Counts III and IV, the plaintiffs have asserted claims

for malicious prosecution and malicious abuse of process.

Malicious prosecution concerns the wrongful initiation of an

action, whereas malicious abuse of process involves a perversion

of a process after it has been issued. Cameron v. Graphic

Management Associates, 817 F.Supp. 19, 21 (E.D.Pa. 1992),

citing McGee v. Feege, 535 A.2d 1020 (Pa. 1987). Here, as set

forth in paragraph 27(c) of the complaint, it would appear that

the plaintiffs’ allegations pertain only to a malicious prosecution

claim, as they allege in pertinent part:

Plaintiff Frances Livingstone was arrested

without probable cause and for an improper

purpose. More particularly, the purpose of the

arrest and pursuit of the unsubstantiated

charges was to divert attention from the

outlined police wrong-doing, to exhaust or strain

the plaintiffs financial and emotional resources,

and to utilize improperly as leverage the false

charges in an effort to secure a civil release and

promise not to pursue legal action against the

defendants...

Under Pennsylvania law, the elements of a malicious

prosecution claim are that the defendants (1) instituted the

proceedings (2) without probable cause (3) with actual malice

and (4) that the proceedings terminated in favor of the plaintiff.

Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993). Here,

since Mrs. Livingstone’s criminal proceedings did not terminate

in her favor, but rather were dismissed pursuant to settlement

discussions, this claim has no merit.

It is clear under Pennsylvania law that if charges in an

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underlying action are dropped as a result of a compromise, the

accused may not bring a subsequent action for malicious

prosecution. Junod v. Bader, 458 A.2d 251, 253-54 (Pa. Super.

1983). As the Junod Court explained:

[I]f the charges are dropped as a result of a

compromise, our courts conclude that the

accused placed a higher value on peace than on

establishing his innocence, and thus will not

allow him to burden the courts or another party

with a second action in which the accused, no

longer himself at risk, asserts the same claim of

innocence that he earlier abandoned.

Id. at 253. Here, since a compromise was reached among the

parties in Mrs. Livingstone’s criminal proceedings (whereby she

was acquitted on the criminal charges against her), the claim for

malicious prosecution in Count III will not lie.

In addition, the plaintiffs’ claim for malicious abuse of

process in Count IV has no merit. "The essence of an abuse of

process claim is that proceedings are used for a purpose not

intended by the law" Cameron, supra, 817 F.Supp. at 21, citing,

Rosen _v. Tesoro Petroleum Corp., 582 A.2d 27, 32 (1990),

appeal denied, 592 A.2d 1303 (Pa. 1991). Typical malicious

abuse of process claims involve such situations as extortion by

means of attachment, execution or garnishment, and blackmail

through an arrest or criminal prosecution. Cameron, 817

F.Supp. at 21.

An abuse of process claim is not actionable, however, "if

the claimant, even with bad intentions, merely carries out the

process to its authorized conclusion.” Id. Here, although there

is a material question of fact in dispute as to whether the

plaintiffs’ assent to the settlement was voluntary and informed,

the record does not indicate that the defendants engaged in a

perversion of the process. Thus, the instant motions should be

granted as to this claim.

Count V sets forth a claim for invasion of privacy. This

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claim is time-barred since, under Pennsylvania law, a cause of

action for invasion of privacy must be commence within one

year. 42 Pa.C.S.A. $5523. We note that Pennsylvania’s two-

year statute of limitations for personal injury claims would be

applied here if this claim was asserted under § 1983. See, Kost

v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). However, as the

plaintiffs’ claim for invasion of privacy is brought as a

supplemental claim, it is time-barred.

In Count VI, the plaintiffs assert a claim for intentional

infliction of emotional distress. In order to prevail on this

claim, the plaintiffs must prove that the defendants "by extreme

and outrageous conduct, intentionally or recklessly caused

[them] severe emotional distress.". Hackney v. Woodring, 622

A.2d 286, 288 (Pa.Super. 1993), alloc. granted, 634 A.2d 224

(Pa. 1993). As the Hackney Court explained:

Liability will be found only where the conduct

has been so outrageous in character, and so

extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized

community.

Id., citing Restatement (Second) of Torts, § 46 comment d.

Under current Pennsylvania law, competent medical

evidence is required to support a claim for the alleged

intentional infliction of emotional distress. Bougher v

University of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989), citing

527 A.2d 988, 995

Kazatsky v. King David Memorial Park, Inc.,

(Pa. 1987); but see, Hackney v. Woodring, supra, 622 A.2d at

288-290 (where the Superior Court held that expert medical

testimony is unnecessary where there is sufficient evidence of

outrageous conduct and resulting emotional distress within the

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a

understanding of the average juror).'’? Here, the plaintiffs

have submitted a supplemental and/or amended pretrial

statement with various expert medical reports appended

thereto. They also have listed an extensive number of doctors

and medical personnel in their list of witnesses. Thus, at this

juncture, we cannot say that the plaintiffs have failed to present

competent medical testimony to support their claim of

emotional distress, and hence, Count VI should survive the

instant motions.

The plaintiffs’ claim for conversion in Count VII is

brought against all of the defendants. The plaintiffs assert that

the defendants came into custody of and damaged their

personal property, including their house, house furnishings and

clothing.

The defendants argue that they are immune from this

claim based upon the Pennsylvania Political Subdivision Tort |

Claims Act ("the Act"), 42 Pa.C.S.A. § 8541 et seq., which

grants immunity to local agencies and their employees for

personal injury or property damage caused by their "negligent" :

acts.'"* While §8542 of the Act immunizes a municipality or its |

employees from “negligent acts", the Act provides that such

negligent conduct "shall not include acts or conduct which

constitutes a crime, actual fraud, actual malice or willful

misconduct.” 42 Pa.C.S.A. § 8542 (a)(2).. The Act also bars

immunity for intentional torts. Cooper v. City of Chester, 810

F. Supp. 618, 625-26 (E.D.Pa. 1992), citing 42 Pa.C.S.A. § 8550.

Here, the plaintiffs have alleged that the defendants’

1” On October 14, 1993, an appeal from the Superior

Court’s decision in Hackney was granted by the Pennsylvania

Supreme Court. At this juncture, no decision on the appeal has

been rendered.

18 ~The General Assembly has provided nine exceptions in

which such sovereign immunity is waived, (see, 42 Pa.C.S.A. §

8522(b)), but none of these exceptions are applicable here.

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conduct amounted to more than mere negligence. The

complaint alleges that the defendants’ acts "were performed

knowingly, intentionally and/or maliciously, or alternatively in

such reckless disregard of the plaintiff's rights as to amount to

outrageous and/or willful misconduct.""® Accordingly, the

defendants are not entitled to immunity from the conversion

claim in Court VII. See, Wade v. City of Pittsburgh, 765 F.2d

405, 411-12 (3d Cir. 1985); City of Chester, supra, 810 F.Supp.

at 625-26.

Likewise, this claim should not be dismissed pursuant to

42 Pa.C.S.C. § 5522, which states in pertinent part;

Within six months from the date that any injury

was sustained or any cause of action accrued,

any person who is about to commence any civil

action or proceeding within this

Commonwealth...against a government unit for

damages on account of any injury to his person

Or property...shall file in the office of the

government unit, and if the action is against a

Commonwealth agency for damages, then also

file in the office of the Attorney General, a

statement in writing...

42 Pa.CS.A. § 5522(a)(1). The statute also provides that:

If the statement...is not filed, any civil action or

proceeding commenced against the government

unit more than six months after the date of

injury shall be dismissed... The court shall excuse

noncompliance with this requirement upon a

ab Cc ilure e

such statement...

19 See, complaint at # 23.

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42 Pa.C.S.A. §5522 (a)(2) (emphasis added).”

Although the plaintiffs did not provide such written

notice within the above six-month period, the instant claim

should not be dismissed. Under the statute’s "reasonable

excuse” provision (highlighted above), an action will not be

dismissed absent a showing of prejudice to the defendant. In

re Paoli Railroad Yard PCB Litigation, 916 F.2d 829, 864-65

(3d Cir. 1990); Hurt v. Philadelphia Housing Authority, 806

F.Supp. 515, 529 (E.D.Pa. 1992). Here, the defendants have

neither shown nor claimed that they were prejudiced by the

untimely notice, and thus, Count VII should not be dismissed.

Therefore, for the reasons set forth above, it is

recommended that the supplemental motion to dismiss and/or

for summary judgment brought by Washington Township and

Officer Frank E. Monack, Jr. (Docket No. 47) and the motion

for summary judgment submitted on behalf of North Belle

Vernon Borough and Officer Darhl Snyder (Docket No. 51) be

granted as to Counts III, ITV and V and denied as to all other

claims, and that the motion to dismiss and/or for summary

judgment filed by Fayette City Borough and Officer Raymond

Moody ‘Docket No. 56) be granted as to Counts II, Ill, [V and

V and denied as to all other claims.

Within ten (10) days after being served with a copy, any

party may serve and file written objections to this Report and

Recommendation. Any party opposing the objections shall have

seven(7) days from the date or service of objections to responde

thereto. Failure to file timely objections may constitute a

waiver of any appellate rights.

2 We note that the above notice provision does not apply

to claims brought under § 1983. Knoll v. Springfield Township

School _ Dist., 763 F.2d 584, 585 (3d Cir. 1985); Hurt v.

Philadephia Housing Authority 806 F.Supp. 515, 529 (E.D.Pa.

992).

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" |

Respectfully submitted,

(s)

Robert C. Mitchell, Chief

United States Magistrate Judge

Dated: June 8, 1994

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PRINTER’S NOTE:

THIS PAGE LEFT BLANK FOR

PURPOSES OF PAGINATION

76A

Filed December 13, 1993

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 92-3288

FRANCES E. LIVINGSTONE and

JOSEPH A. LIVINGSTONE, her husband,

Appellants

v.

NORTH BELLE VERNON BOROUGH, FAYETTE CITY

BOROUGH, WASHINGTON TOWNSHIP, FRANK E.

MONACK, JR., individually and in his capacity as officer

of WASHINGTON TOWNSHIP, OFFICER RAYMOND

MOODY, individually and in his capacity as officer for

FAYETTE CITY BOROUGH, and OFFICER DARHL

SNYDER, individually and in his capacity as an officer for

NORTH BELLE VERNON BOROUGH

Argued December 15, 1992

Before: SLOVITER, Chief Judge, GREENBERG, Circuit

Judge, and POLLAK,* District Judge

Appeal from the United States District Court

for the Western District of Pennsylvania

_ (D.C. Civil No. 91-0059)

Reargued In Banc May 11, 1993

*Hon. Louis H. Pollak, United States District Court for the Eastern

District of Pennsylvania, sitting by designation.

77A

eT

2

Before: SLOVITER, Chief Judge, BECKER, STAPLETON,

MANSMANN, GREENBERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD, ALITO, ROTH,

and LEWIS, Circuit Judges

(Filed: December 13, 1993)

Peter M. Suwak (Argued)

Washington, PA 15301

Counsel for Appellants

Thomas P. McGinnis (Argued)

Grigsby, Gaca & Davies, P.C.

Pittsburgh, PA 15222

Counsel for Appellees Borough of

North Belle Vernon and

Darh! Snyder

Simon B. John

Anne N. John

John & John

Uniontown, PA 15401

Counsel for Appellees Borough of

Fayette City and Raymond Moody

Albert C. Gaudio

Monessen, PA 15062

Counsel for Appellee

Washington Township

Timothy M. Maatta

Monessen, PA 15062

Counsel for Appellee

Frank E. Monack, Jr.

78A

OPINION OF THE COURT

SLOVITER, Chief Judge.

This is the second time in recent months that the in banc

court has considered whether a_ release-dismissal

agreement provides an absolute defense to a plaintiff's civil

rights suit alleging police misconduct and excessive use of

force. In Cain v. Darby Borough, 7 F.3d 377 (3rd Cir. 1993),

we held that the release-dismissal agreement relied on by

the district court as the basis for its grant of s

judgment to the defendant municipalities and officials was

unenforceable because the defendants had not made the

requisite case-specific showing that the public interest was

served by obtaining the release. In this case, we focus on

another prong of the required inquiry into release-dismissal

agreements, i.e. the need for defendants to show that there

was a knowing and voluntary release-dismissal agreement.

Because there are material issues of fact as to whether

plaintiffs Frances and Joseph Livingstone validly waived

their rights to sue the defendant police officers and

municipalities for civil rights violations arising from a

domestic dispute at the Livingstone home, we will vacate

the district court’s order granting summary judgment for

the defendants and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

This civil suit filed by Frances and Joseph Livingstone

against the police officers and municipalities arose from the

conduct of the police officers on the night of January

12-13, 1989, at the Livingstone home in Washington

Township, Pennsylvania. During a family argument between

Carrie Livingstone, age twenty-two, who was unmarried and

living at her parents’ home with her fourteen-month-old

son, and Joseph, her father, Mr. Livingstone struck Carrie

on the face, causing her lip to split and bleed. Carrie ran

out of the house and to the community ambulance service

79A

across the street, where an employee called the police.

When Officer Frank Monack arrived, Carrie told him that

her father had struck her and that her parents were

holding her son without her consent.

Monack, who was at that time an officer in the

Washington Township Police Department and is now Chief

of Police, radioed for assistance pursuant to an inter-

municipal police cooperation agreement. Raymond Moody,

who was and is the Chief of Police for the Borough of

Fayette City, and Darhl Snyder, an officer in the North Belle

Vernon Police Department, responded. They proceeded to

the Livingstone home where Mr. Livingstone permitted them

to enter for the purpose, he later testified, of discussing

possible criminal charges against him arising out of the

incident. Following a brief discussion, Monack and Snyder

accompanied Mr. Livingstone outside, and Monack told him

to go to the nearby police station to make a statement.’ No

charges were filed against Mr. Livingstone that evening or

at any later time.

Monack and Snyder then reentered the Livingstone

household, this time in search of Carrie’s son and

admittedly without a warrant or court order.? Mrs.

Livingstone had retreated to the back bedroom with her

grandson, and had locked and barricaded the door. When

she refused to open the door, Monack picked the lock and

then tried to push the door open. From the partially opened

door, Mrs. Livingstone hit him with a fishing rod and

scratched him. Monack and Snyder broke the door down to

enter the room, and then Monack told Mrs. Livingstone she

was under arrest.

Mrs. Livingstone testified that both men struck her,

causing her to lose consciousness and sustain bruises,

lacerations, lost teeth, and head injuries. According to

defendants, they used force only for the purpose of getting

handcuffs on her after she struck the officer, and a stun

gun to subdue her because she was screaming and kicking.

1. The parties dispute whether Monack also told Mr. Livingstone he was

under arrest.

2. There is some dispute as to Moody's whereabouts.

- 80A

5

Snyder held her down while Monack used the gun. Mrs.

Livingstone claims that Monack then said “you want a

thrill, Fill give you a thrill” and applied the stun gun

between her legs. A medical examination conducted at the

hospital that night notes a burn in the vulval area.

The officers removed Mrs. Livingstone, handcuffed, from

the house. She states that they dragged her outside and

dropped her several times, ban her head, and then left

her lying in cold muddy water for hours. The officers claim

that her thrashing caused them all to fall, and that she

refused to get up.

On January 13, 1989, the morning after the altercation,

Mrs. Livingstone was charged by Monack, on behalf of the

Washington Township Police Department, with disorderly

conduct, vated assault, terroristic threats, resisting

arrest, and interference with custody. At a preliminary

hearing on April 18, 1989, Mrs. Livingstone was held over

for a jury on all but the terroristic threats charge, and

the ee assault charge was reduced to simple

assault.

The trial in Fayette County Court of Common Pleas began

on February 13, 1990, with attorney Thomas R. Ceraso

representing Frances Livingstone and Jack R. Heneks, Jr.,

an Assistant District Attorney, representing’ the

Commonwealth of Pennsylvania. Carrie Livingstone testified

for the prosecution, followed by Monack, Snyder, Moody,

Police Chief Robert Matthews of Washington Township, and

Evelyn Rehe of the community ambulance service. The

Commonwealth rested, and Mrs. Livingstone demurred to

all of the charges. The demurrer was granted on the charge

of interference with custody on the ground that there were

no facts showing danger to the child, but was denied as to

the other charges.

Thereafter, Joseph Livingstone and his son, James,

testified for the defense. Before Mrs. Livingstone was to

take the stand (and presumably would have testified about

her claims with regard to police use of a stun gun on her

private parts), the trial judge, Judge Cicchetti of the Court

of Common Pleas, met with Heneks and Ceraso to discuss

whether the matter could be resolved.’ After settlement

3. Plaintiffe assert that the Commonwealth initiated settlement

negotiations, but Heneks in his affidavit states that it was the trial judge

81A

6

negotiations, a conference was held in camera with Judge

Cicchetti. Present were Moody, Monack, Matthews (now

deceased), the Livingstones, Ceraso, and Heneks.

Ceraso summarized the arrangement by oer that the

defense would move for a judgment of acquittal after James

Livingstone finished his testimony; that expenses for the

physical damage to the Livingstone house and for Mrs.

Livingstone’s reasonable medical care would be paid; and

that once those bills were paid, the Livingstones would

release any civil claims. Ceraso stated on the record:

there will be an agreement on the part of my client,

Mrs. Livingston[e], and also her husband, Joe

Livingston[e], who is present, that upon payment of

reasonable medical bills that wielre associated with the

incident that occurred, based on my forwarding those

to Washington Township with confirmation, together

with bills reflecting damage incurred at the household

of Mr. and Mrs. Livingston[e], that Washington

Township will cause the same to be paid. At the time

of final payment of those bills, there will be a full and

complete release signed with reference to any civil

action on the part of Mr. and Mrs. Livingston|e]. It's

also my understanding that at that time there will also

be a release signed by Washington Township, or any of

its proper officials, or any member of the police force

necessary to release Mr. and Mrs. Livingstonie] from

any liability ....

App. at 1109.

In response to the judge's inquiry, the parties voiced an

expression of assent. The court asked whether “you all

think this is in the best interest for everyone” and

Matthews, Monack, and Heneks said they did. App. at

1112. When they returned to the courtroom, Ceraso moved

for a judgment of acquittal on the criminal charges against

Mrs. Livingstone, which the court granted.

who instigated the settlement discussions. We do not find this a material

dispute. The effect of the agreement “is not dependent upon which party

first suggests the release ... .” Boyd v. Adams, 513 F.2d 83, 88 (7th Cir.

1975).

-82A

7

It is undisputed that the settlement agreement was never

reduced to writing. The Livingstones never submitted for

payment any medical bills or household repair bills, and no

payments have been made. The Board of Supervisors of

Washington Township took no action to officially ratify the

agreement until almost two years after the conference in

chambers, and only then after this suit was started.‘ There

is no evidence that the other two municipal defendants,

North Belle Vernon Borough and Fayette City "Borough,

have ever taken any action to ratify any putative

settlement.

On January 14, 1991, almost a year after the criminal

trial, the Livingstones filed this action against the police

officers and the three employer municipalities. The

complaint consisted of seven claims: a federal claim filed

pursuant to 42 U.S.C. § 1983 (1988), and state law claims

alleging assault and battery, malicious prosecution,

malicious abuse of process, invasion of privacy, intentional

infliction of emotional distress, and conversion.

The defendants filed motions to dismiss or, in the

alternative, for summary judgment. The district court

referred the case to a magistrate judge, Who ordered the

parties to engage in discovery’ and to submit briefs and

materials in support of the motions.

4. There was testimony that on the day of the settlement. two of the

three members of Washington Township's Board of Supervisors were in

the courthouse, were informed of the agreement, assented to it, and later

telephoned the third supervisor, who also agreed. Washington Township

has attached to its brief a document showing an official ratification by its

Board of Supervisors in February 1992, after this suit was filed.

5. Ceraso declined to give a deposition on the ground of the attorney-

client privilege asserted by Mrs. Livingstone. The magistrate judge. and

thereafter the district court, denied defendants’ joint motion to compel

his testimony. Mrs. Livingstone also refused to answer any questions

regarding her conversations with Ceraso about the release-dismissal

agreement, and again the magistrate judge denied the motion of

defendants to cornpel her to reveal this information.

Plaintiffs concede that they asserted the privilege for “tactical” reasons,

to make it difficult for the defendants to show that Mrs. Livingstone

acted on the advice of her counsel and suggest that they may now be

83A

8

In their briefs in support of summary judgment,

defendants argued that the suit was barred by the release-

dismissal agreement reached during the in camera

conference before Judge Cicchetti. The Livingstones claimed

that they never intended to waive their rights to sue,

pointing out that the agreement was never reduced to

writing and that Washington Township never made the

contemplated payments. They also contended that the

agreement was never properly entered into by the

municipalities, as the Washington Township Board of

Supervisors never formally approved it and the other

boroughs’ governing bodies never considered it, and that

the agreement was invalid and unenforceable under

Pennsylvania law.

On April 8, 1992, the magistrate judge submitted a

Report and Recommendation recommending that summary

judgment be granted for the defendants on the basis of the

release-dismissal agreement. Although the court

acknowledged that Washington Township may not have

formally approved the agreement, it noted that two

supervisors, a quorum, had approved it, thereby satisfying

Pennsylvania law. Without comment on the absence of the

other municipalities and officers from the agreement, the

magistrate judge concluded that plaintiffs had contracted

with all of the defendants, and thus the plaintiffs’ civil suit

was barred; that the agreement comported with due

process because the plaintifis understood that they were

waiving their rights to assert future civil claims and had

entered into the release voluntarily; and that there was

sufficient consideration because the plaintiffs, in exchange

for the surrender of their potential civil claims, had secured

the dismissal of the criminal charges and a promise by the

defendants not to sue them.

willing to waive the attorney-client privilege. Appellants’ Brief at 28 n2.

Inasmuch as the privilege issues are not before us in this appeal, we do

not take any position om whether a party who challenges a release may

assert the attorney-client privilege to conceal the information which her

opponent needs to meet that challenge. See, e.g., Hunt v. Blackburn, 128

U.S. 464, 470 (1888); United States v. Bilzerian, 926 F.2d 1285, 1291-94

(2d Cir.), cert. denied, 112 S. Ct. 63 (1991).

84A

9

Objections were filed but the district court adopted the

magistrate judge’s opinion as its own and granted summary

judgment for all defendants. This timely appeal followed.

We have jurisdiction under 28 U.S.C. § 1291 (1988). For

a grant of summary judgment our review is plenary, and we

review the record giving the benefit of all inferences to the

non-moving party. See Erie Telecormns., Inc. v. City of Erie,

853 F.2d 1084, 1093 (3d Cir. 1988).

DISCUSSION

Applicable Law

The district court granted summary judgment for the

defendants in reliance on the Supreme Court's decision in

Town of Newton v. Rumery, 480 U.S. 386, 392 (1987),

where the Court gave effect to a_ release-dismissal

agreement. The plaintiff, Rumery, had been charged with

the state-law felony of tampering with a witness, and

agreed to release his potential civil rights claims against the

town officials in return for the prosecutor's agreement to

dismiss all criminal charges. When Rumery nonetheless

sued the town officials ten months after the criminal

charges were dropped, the defendants moved to dismiss on

the ground that the suit was barred by the release-

dismissal agreement. The district court dismissed the case,

finding that Rumery’s waiver was “voluntary, deliberate and

informed.” Id. at 391. The Court of Appeals for the First

Circuit reversed, holding that release-dismissal agreements

are per se invalid as against public policy because they

tempt prosecutors to “trump up charges” in reaction to

possible civil rights suits and to suppress evidence of police

misconduct, and would leave constitutional violations

unremedied. See Rumery v. Town of Newton, 778 F.2d 66,

69 (1st Cir. 1985), rev'd, 480 U.S. 386 (1987).

85A

10

In a 5-4 decision, the Supreme Court reversed, holding

that such agreements are not per se invalid. See Rumery,

480 U.S. at 392. The Court, looking to federal common law

for the policies underlying the waiver of rights conferred by

a federal statute,® adopted a case-by-case approach to

determining whether a release-dismissal agreement should

be enforced, balancing the interests in its enforcement

against the public interests harmed. See id. Justice Powell

This text is long and has been trimmed here. Open the source document for the complete record.