# Appendix — North Belle Vernon Borough v. Livingstone

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1717%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1142

## Text

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 §

1A

2

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.

2A

3

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

3A

4

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.

4A

5

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,

SA

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).

6A

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.

7A

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

8A

PEC ERE ABA, Ta JOR TO RR een:

9

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

9A

10

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.

10A

ies a Nae ARON AS Nhs Car Wel en: tan ae adnate ,

eran Sarah ae!

a RT SNA a AS Nt SINS ean tl Sarah hooks

il

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’

11A

12

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

12A

te ae

Sth BS See aed le a

Bnd) Sea A Riri heel tes

\
:

13

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.

14

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

14A

ee ee

15

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.

15A

16

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.

16A

17

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.

18A

i9

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

20A

ooo

21

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

21A

22

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.

22A

eR aes Skies Pan i

23

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

23A

24

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.

24A

25

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

26A

ceo: ee

i

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

27A

28

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

28A

29

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).

294A

30

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

30A

PANERA Tide MO ts RS am

tig hl Saat Seat sh te as ect Se Sv ee oie oe

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.

314A

32

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

32A

aCe ee es

wt

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

33A

34

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).

344A

35

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).

35A

36

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.

36A

ENT ie ee ene hn «RNs Seis J alah 6

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.

37A

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”).

38A

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.

39A

46

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

41A

42

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

42A

SN cae i RRR

43

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.

43A

44

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.

44A

45

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

45A

46

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, delibe

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1717%3A2. Public record. Not legal advice.