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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK DAVID FRANKEL :

Plaintiff, : CIVIL ACTION

 :

v. :

 :

THE DISCIPLINARY BOARD :

OF THE SUPREME COURT : NO. 05-CV-01450

OF PENNSYLVANIA, et.al., :

Defendants. : 

MEMORANDUM

LEGROME D. DAVIS, J. APRIL 27, 2006

Presently before this Court is Defendant Patti S. Bednarik’s Motion for Summary

Judgment (Doc. No. 25), Plaintiff’s Response thereto (Doc. No. 28), Defendant Bednarik’s

Supplemental Motion for Summary Judgment (Doc. No. 30) and Plaintiff’s Brief Contra (Doc.

No. 31). For the reasons set forth below, Defendant Bednarik’s Motion for Summary Judgment

is GRANTED. 

I. PROCEDURAL HISTORY

On March 29, 2005, plaintiff, a disbarred attorney appearing pro se, commenced this

action against the Supreme Court of Pennsylvania, the Disciplinary Board of the Supreme Court

of Pennsylvania (“Disciplinary Board”), Patti W. Bednarik, Esq. and Edwin R. Frownfelter, Esq.,

alleging that defendants violated his 14th Amendment rights during the disciplinary proceedings

that resulted in his disbarment. Compl. ¶ 9. On April 5, 2005, this Court sua sponte dismissed

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 1 of 8
 The Court dismissed all of plaintiff’s claims; however, upon reconsideration, the Court 1

reinstated the claims against the Disciplinary Board, Bednarik and Frownfelter. See Doc. No. 5.

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plaintiff’s claims against the Supreme Court of Pennsylvania. On November 8, 2005, this Court 1

granted Defendants’ Motion to Dismiss in part, finding that Eleventh Amendment immunity

applied to plaintiff’s claims for damages against Defendant Disciplinary Board and Defendants

Bednarik and Frownfelter in their official capacities, that quasi-judicial immunity applied to

plaintiff’s claims for damages against the members of the Disciplinary Board, and that

prosecutorial immunity applied to plaintiff’s claims against Defendant Frownfelter in his

individual capacity. 

In addition, this Court found that plaintiff’s allegations that Defendant Bednarik

knowingly and intentionally misstated and misrepresented evidence, referenced information not

in evidence and took actions that were designed to malign and cause harm to plaintiff during

hearings and in pleadings were part of Defendant Bednarik’s presentation of her case against

plaintiff and, therefore, were protected by prosecutorial immunity. See Imbler v. Pachtman, 424

U.S. 409, 431 (1976). This Court also found that “a limited factual inquiry” was necessary to

determine whether prosecutorial immunity applied to plaintiff’s claim that Defendant Bednarik

“made misrepresentations to and threatened witnesses and potential witnesses.” See Forsyth v.

Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979). This claim is now before the Court. 

II. FACTUAL BACKGROUND

Defendant Bednarik is Disciplinary Counsel for the Disciplinary Board of the Supreme

Court of Pennsylvania. Def. Bednarik’s Mot., Ex. PSB-1 (“Bednarik Aff.”) ¶¶ 1, 8. She has the

“power and duty to investigate and prosecute all matters involving alleged misconduct” called to

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her attention by complaint or otherwise. Id. ¶ 8. On February 25, 2000, the Office of Disciplinary

Counsel received a complaint regarding plaintiff. Id. ¶ 10. On March 21, 2000 and on April 23,

2002, the Office of Disciplinary Counsel received two additional complaints. Id. As a result of

the complaints, Defendant Bednarik conducted telephone interviews with the individuals who

made the complaints as well as with other people who had firsthand or personal knowledge of the

complaints. Id. ¶ 11. She avers that at no time did she make misrepresentations to, threaten or

intimidate witnesses or potential witnesses. Id. ¶¶ 18, 19. 

Plaintiff provides an affidavit from Robert Fisher, dated April 18, 2002, and an affidavit

from Brian Merriken, dated April 2, 2002, setting forth the specific allegations against Defendant

Bednarik. See Pl’s Ans., Ex. A (“Fisher Aff.”), Ex. B (“Merriken Aff.”). Robert Fisher avers that

Defendant Bednarik called him to discuss complaints made against plaintiff, but he told her that

he had nothing to add to her investigation. Fisher Aff. ¶ 1. Even though she was asked not to call

again, Defendant Bednarik called to see whether Mr. Fisher had changed his mind. Id. ¶ 3. 

According to Mr. Fisher, Defendant Bednarik implied that something inappropriate had

happened, treated him as if he were lying, and was very aggressive in her questioning, like she

was trying to get Mr. Fisher to say something that was not true. Id. ¶¶ 2, 5-7. 

Brian Merriken’s affidavit contains similar averments. See Merriken Aff. Mr. Merriken

avers that he repeatedly told Defendant Bednarik that he had nothing to add to her investigation.

Id. ¶¶ 1, 2. Defendant Bednarik told Mr. Merriken that Tammy Orewiler gave his name to her. 

Id. ¶ 5. Mr. Merriken believed that Defendant Bednarik thought he was lying and that she

needed his help to win her case. Id. ¶¶ 7, 8. According to Mr. Merriken, Defendant Bednarik

implied that plaintiff had something to do with the death of a boy who lived in an apartment

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 3 of 8
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owned by plaintiff. Id., Addendum. 

III. LEGAL STANDARD

In considering a motion for summary judgment, the court must determine whether “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564,

568 (3d Cir. 1986). All reasonable inferences from the record are drawn in favor of the nonmovant. See Anderson, 477 U.S. at 255; J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524,

1531 (3d Cir. 1990), cert. denied, 499 U.S. 921 (1991). “[R]eview of a summary judgment

motion seeks to determine whether, viewing the evidence in the light most favorable to plaintiff,

no genuine issue of material fact about immunity remains for trial.” Kulwicki v. Dawson, 969

F.2d 1454, 1462 (3d Cir. 1992). 

IV. DISCUSSION

Prosecutors are subject to varying levels of immunity. Kulwicki, 969 F.2d at 1463; see

also Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994). Absolute immunity attaches to all

actions performed in a “quasi-judicial” role, which includes all activity taken while in court, such

as the presentation of evidence or legal argument, as well as out-of-court behavior “intimately

associated with the judicial phases” of litigation. Imbler v. Pachtman, 424 U.S. 409, 430 (1976);

see also Kulwicki, 969 F.2d at 1463. Acts “undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or for trial, and which occur in the course of [her] role as an

advocate for the State, are entitled to the protections of absolute immunity.” Buckley v.

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 4 of 8
 Defendant Bednarik repeatedly states that she has the duty to investigate all matters that 2

involve alleged attorney misconduct and, therefore, prosecutorial immunity should apply. Def.

Bednarik’s Memo. at 5, 6, 8; see also Def. Bednarik’s Supp. Memo. at 5. This Court does not

dispute that investigation of alleged attorney misconduct falls within Defendant Bednarik’s

duties. However, the inquiry focuses on the conduct for which immunity is claimed, not the

whether the actions fall within the prosecutor’s duties. See Buckley, 509 U.S. at 271; Kalina v.

Fletcher, 522 U.S. 118, 127 (1997) (noting that this point is “best illustrated” by the fact that the

Attorney General is protected only by qualified rather than absolute immunity when engaged in

the performance of national defense functions rather than prosecutorial functions).

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Fitzsimmons, 509 U.S. 259, 272 (1993). Immunity extends to “the preparation necessary to

present a case,” including “obtaining, reviewing, and evaluation of evidence.” Kulwicki, 969

F.2d at 1465 (quoting Schrob v. Catterson, 948 F.2d 1402, 1414 (3d Cir. 1991)). The prosecutor

has the burden of establishing that she was acting as an advocate. Buckley, 509 U.S. at 273. A

prosecutor acting in an investigative or administrative capacity is protected by qualified

immunity. Imbler, 424 U.S. at 430-31; see also Kulwicki, 969 F.2d at 1463. 

 In determining whether absolute immunity or qualified immunity applies to particular

actions, the Supreme Court has applied a “functional approach,” which looks to the nature of the

function performed. Buckley, 509 U.S. at 269. The Supreme Court notes that “[t]here is a

difference between the advocate’s role in evaluating evidence and interviewing witnesses as [she]

prepares for trial, on the one hand, and the detective’s role in searching for clues and

corroboration that might give him probable cause to recommend that a suspect be arrested, on the

other hand.” Id. at 273. When a prosecutor performs the investigative functions normally

performed by a detective or police officer, “it is neither appropriate nor justifiable that, for the

same act, immunity should protect the one and not the other.” Id. 2

The line between quasi-judicial and investigative activity is “far from clear.” Kulwicki,

969 F.2d at 1465. In Kulwicki, the Third Circuit acknowledged that, while the filing of a

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 5 of 8
 The Petition charged plaintiff with violations of the Rules of Professional Conduct 3

based on allegations that he engaged in inappropriate contact with two clients. Def. Bednarik’s

Mot., Ex. PSB-2 at 1. 

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complaint is not a foolproof measure of the commencement of “quasi-judicial” activity, it is

important in the determination. Id. at 1466. In Kulwicki, the prosecutor questioned witnesses

two weeks before the criminal complaint was filed. Id. This fact, in combination with the fact

that the witnesses initiated contact with the District Attorney’s office in order to complain about

another individual, “point[ed] away from purely prosecutorial activity.” Id. The Third Circuit

found that, even though the prosecutor mentioned that he planned to press charges during the

interview, the allegations pointed more to investigation than prosecution and, as a result, absolute

prosecutorial immunity did not apply. Id. 

In the instant matter, the Office of Disciplinary Counsel filed a Petition for Discipline

against plaintiff on December 3, 2001. Def. Bednarik’s Mot., Ex. PSB-2 at 1. A second Petition 3

for Discipline was filed on July 31, 2002. Id. In his affidavit, Mr. Merriken states that Defendant

Bednarik initially called him “after the first of the year,” presumably January 1, 2002, as his

affidavit was filed on April 2, 2002. Merriken Aff. ¶ 1. Therefore, Defendant Bednarik’s

questioning of Mr. Merriken occurred after the first petition was filed, but before the second

petition was filed. While the questions Defendant Bednarik asked Mr. Merriken could support a

finding that she was investigating whether Mr. Merriken had a potential complaint against

plaintiff and not acting in her role as an advocate “evaluating evidence” in preparation for trial,

the nature of the complaints against plaintiff were such that evidence of other misconduct was

necessary to establish that plaintiff engaged in a common plan or scheme under Pa.R.D.E.

404(b)(2). See Def. Bednarik’s Mot., Ex. PSB-2 at 2. Therefore, this Court finds that Defendant

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 6 of 8
 The first complaint against plaintiff was filed on February 25, 2000. 4

 Plaintiff alleges that Defendant Bednarik violated his Fourteenth Amendment rights.

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Bednarik’s questioning of Mr. Merriken was “quasi-judicial” activity that occurred in her role as

an advocate. As a result, absolute prosecutorial immunity applies.

Mr. Fisher, in his affidavit, does not indicate when the telephone interviews with

Defendant Bednarik occurred; however, he notes that Defendant Bednarik told him that others

had made complaints about plaintiff. See Fisher Aff. This Court is unable to determine from the 4

information before it whether these interviews occurred while Defendant Bednarik was

investigating the initial complaint, while she was preparing for the initiation of judicial

proceedings, or while she was preparing to present her case. Therefore, this Court finds that

Defendant Bednarik has not met her burden of establishing that she was working as an advocate,

rather than an investigator, when questioning Mr. Fisher. See Buckley, 509 U.S. at 273; see also

Burns v. Reed, 500 U.S. 478, 486-87 (1991) (holding that the presumption is that qualified rather

than absolute immunity is sufficient to protect government officials in the exercise of their

duties). 

Defendant Bednarik argues, in the alternative, that her actions are protected by qualified

immunity. See Def. Bednarik’s Supp. Memo. at 1-5. This Court agrees. Under qualified

immunity, a prosecutor is “shielded from liability” if her conduct does not violate clearly

established constitutional rights of which a reasonable person would have known. Schrob, 948 5

F.2d at 1420. Defendant Bednarik’s questioning of Mr. Fisher, which, at most, could be

perceived as aggressive, does not amount to a violation of plaintiff’s constitutional rights. The

Constitution is not offended by a prosecutor investigating a claim. Therefore, this Court finds

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 7 of 8
 Plaintiff argues that Defendant Bednarik’s conduct “has not yet been wholly identified” 6

and that he should have the opportunity to conduct discovery to show that Defendant Bednarik

violated his constitutional rights. Pl’s Brief Contra at 3-7. Any questioning of witnesses or

potential witnesses conducted by Defendant Bednarik in her role as an advocate would be

protected by absolute prosecutorial immunity. Since plaintiff has not alleged anything that

amounts to a constitutional violation, any questioning of witnesses or potential witnesses that

occurred in a purely investigative capacity would be protected by qualified immunity. 

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that Defendant Bednarik is protected by qualified immunity with regard to the questioning of Mr.

Fisher.

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V. CONCLUSION

Accordingly, this Court grants Defendant Bednarik’s Motion for Summary Judgment. An

appropriate order follows.

Case 2:05-cv-01450-LDD Document 32 Filed 04/27/06 Page 8 of 8