IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

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HAROLD LISCHNER, 

 

 Plaintiff, 

 v. 

UPPER DARBY TOWNSHIP, 

 Defendant. 

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CIVIL ACTION 

 

No. 05-4546 

JURY TRIAL DEMANDED 

PLAINTIFF’S PRETRIAL MEMORANDUM

 Pursuant to the Court’s Order of February 7, 2007 and Local R. Civ. P. 16.1(c), plaintiff 

Harold Lischner, through his counsel, David Rudovsky and Jonathan H. Feinberg, submits this 

Pretrial Memorandum. 

I. NATURE OF ACTION 

 This is a civil rights action brought under 42 U.S.C. § 1983. The Court has jurisdiction 

under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343(a)(3), and 1343(a)(4). 

II. STATEMENT OF THE CASE 

On September 15, 2003, Plaintiff Dr. Harold Lischner was at a public event on the 

grounds of the privately owned Drexelbrook Community with approximately fifty other 

members of the public to observe the motorcade of President George W. Bush, who was giving a 

speech at the Drexelbrook Catering and Banquet Facility. Dr. Lischner, in an act of peaceful 

political expression, placed a small sign on his chest with a message concerning the funding of 

the war in Iraq. Michael Kehrle, a sergeant in the Upper Darby Township Police Department, at 

the request of persons associated with the Drexelbrook Community who had adopted a policy of 

no signs or protesting for the day of the event, told Dr. Lischner he would have to put the sign 

Case 2:05-cv-04546-JS Document 24 Filed 04/24/07 Page 1 of 16
away or face arrest. When Dr. Lischner asserted that it was his right to display the sign at a 

public event, Kehrle arrested him, purportedly on the ground that Dr. Lischner had committed 

the crime of defiant trespass under the Pennsylvania Criminal Code, 18 Pa. C.S. § 3503(b). Dr. 

Lischner was charged with disorderly conduct and tried before a Magisterial District Justice who 

found him not guilty. 

Thereafter, Dr. Lischner brought this action naming as defendants Sergeant Kehrle and 

Upper Darby Township (UDT). After cross motions for summary judgment were filed, the 

Court, in a Memorandum and Order filed on February 5, 2007, dismissed Dr. Lischner’s claims

against defendant Kehrle but denied summary judgment as to UDT. Accordingly, there are two 

claims to be presented to the jury: that Dr. Lischner’s Fourth Amendment right to be free from

unreasonable searches and seizures was violated as a result of either (1) a policy, practice, or

custom of UDT, or (2) UDT’s failure to properly train its officers. 

 We note that with respect to Dr. Lischner’s claim that his rights were violated as a result 

of a UDT policy, practice, or custom, in light of the undisputed nature of certain material facts, 

and in light of the Court’s legal rulings, the issues for trial have been substantially narrowed. 

First, as the Court stated in its summary judgment ruling, “it is undisputed that it was the 

affirmative ‘policy’ of Upper Darby on the day of the President’s visit to defer to the property 

owner’s declaration of permissible activity and arrest members of the public holding signs or 

otherwise ‘protesting’ on Drexelbrook property.” Mem. and Order at 27; see also id. at 27-28 

(noting defendant’s admissions that Sergeant Kehrle was instructed by his superiors to enforce 

the policy of Drexelbrook Associates). Second, the Court has ruled as a matter of law that the 

policy of Drexelbrook Associates adopted and enforced by UDT on the day of the President’s 

visit was unlawful. See Mem. and Order at 9 (“[T]he Court finds that Drexelbrook’s ‘no signs or 

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protesting’ policy was unlawful.”); id. at 14 (“[T]he Court concludes that the condition as 

imposed by Drexelbrook in this instance was unlawful.”); id. at 19 (“[T]he Court concludes that 

the ‘no signs or protesting’ condition imposed by Drexelbrook in these circumstances was 

unlawful.”); id. at 28 (“Since the ‘no signs or protesting’ policy was unlawful....”).1 Because the 

policy was unlawful, the “condition” imposed upon Dr. Lischner’s presence on the Drexelbrook 

grounds (no signs or protesting) was unlawful. Thus, as a matter of law, Dr. Lischner did not 

commit the crime of defiant trespass, and the arrest of Dr. Lischner was in violation of the Fourth 

Amendment. See 18 Pa. C.S. § 3503(c)(2) (providing for defense to defiant trespass charge 

when “the premises were at the time open to the public and the actor complied with all lawful 

conditions imposed on access to or remaining on the premises”); Commonwealth v. Tate, 432 

A.2d 1382 (Pa. 1981). 

For this reason, the only issues to be decided by the jury at trial on the policy claim are 

(1) whether UDT’s unlawful policy caused Dr. Lischner’s constitutional injury, see Mem. and 

Order at 28 (“Since the ‘no signs or protesting’ policy was unlawful, a rational trier of fact may 

find that Upper Darby’s policy called for the unlawful arrest of persons not engaged in criminal 

activity, and, therefore, caused Dr. Lischner’s constitutional injury.”), and, if answered in the 

affirmative, (2) Dr. Lischner’s damages. 

 1

 The Court reached this conclusion based on an exhaustive analysis of Third Circuit and 

Pennsylvania case law concerning the interplay of the freedom of speech and property rights in 

the context of Pennsylvania’s defiant trespass statute that need not be repeated extensively here. 

We understand the Court to have based its conclusion on the following: (1) that Drexelbrook 

welcomed members of the public onto its property for an event that was fundamentally political 

in nature and that, as such, Drexelbrook created a forum for expression, Mem. and Order at 14-

16; (2) Dr. Lischner’s expression was not incompatible with the circumstances of the President’s 

visit, Mem. and Order at 16-17; and (3) in light of the provision of a political forum to the 

President to engage in the expressive activity of fundraising, the no signs or protesting condition 

imposed by Drexelbrook on members of the public constituted an impermissible non-uniform

application of conditions, Mem. and Order at 17-18. 

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III. DAMAGES 

Dr. Lischner seeks damages for physical and emotional pain and suffering, the 

deprivation of his liberty, and the violation of his constitutional right to free expression, which 

damages will be quantified by the jury. 

IV. WITNESSES 

Dr. Lischner may introduce testimony at trial from the following witnesses: 

1. Plaintiff Harold Lischner 

2. Sergeant Michael Kehrle 

Dr. Lischner reserves the right to introduce testimony from any witnesses identified on 

defendant’s witness list. 

V. SCHEDULE OF EXHIBITS 

Dr. Lischner may offer at trial the following exhibits, all of which have pursuant to the 

Court’s February 7, 2007 Order previously been provided to the defense: 

1. Plaintiff’s Curriculum Vitae

2. Google.com map of Drexelbrook area (previously marked Kehrle 1) 

3. Notice of Trial, Summons for a Summary Case, and Non-Traffic Citation 

Summons (previously marked collectively as Kehrle 2) 

4. Upper Darby Township Police Department Incident Report (previously marked 

Kehrle 3) 

5. Upper Darby Township Police Department Complaints Report (previously 

marked Kehrle 4) 

6. Deposition of Sergeant Michael Kehrle 

7. Plaintiff’s e-mail messages (appended to Plaintiff’s Initial Disclosures) 

8. Discovery responses (including attached documents) of Upper Darby Township 

and Sergeant Michael Kehrle 

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9. Photographs of Drexelbrook Community (appended as Ex. B to Plaintiff’s 

Summary Judgment filing) 

In addition to these exhibits, plaintiff reserves the right to introduce or otherwise use at 

trial any and all pleadings filed in this matter on behalf of the defendants. 

VI. ESTIMATED TIME OF TRIAL

Plaintiff estimates that the trial of this matter will take two to three days. 

VII. SCHEDULING ISSUES

Plaintiff understands that it is the Court’s practice to place civil cases into a trial pool and 

that a case may be called to trial on 24-hours notice. In light of the fact that Dr. Lischner 

currently resides in California, we would respectfully request that the Court schedule trial for a 

date certain so as to allow for appropriate travel arrangements. 

VIII. OFFERS OF PROOF AND OBJECTIONS REGARDING DEFENSE EXHIBITS

The defense has listed in its exhibit list forwarded to plaintiff’s counsel on April 17, 2007 

a number of exhibits which we believe to be irrelevant to the issues at trial. Because paragraph 3 

of the Court’s February 7, 2007 Order states that the parties need not raise relevancy objections 

in pretrial memoranda, we do not, other than to expressly preserve such objections to defense 

exhibits 9, 13, 14, 15, 16, and 17, address these issues further here. 

However, we note that with respect to two of these exhibits, exhibit 13 (the entirety of the 

UDT Administrative Code) and exhibit 14 (the entirety of the UDT home rule charter), neither of 

which was identified in discovery as relevant to UDT’s defenses, plaintiff has requested from the 

defense an offer of proof as to these exhibits and a particularized explanation as to the section(s) 

of these voluminous exhibits that will be used at trial. The defense has responded by stating only

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that “these documents are matters of public record that relate to Plaintiff’s Monell action.”2

 We

respectfully submit that this offer of proof is entirely insufficient and request that the Court direct 

the defense to provide a more particularized explanation of the intended use of these exhibits. 

Respectfully submitted, 

DATE: April 24, 2007 /s/ Jonathan H. Feinberg 

 David Rudovsky 

 Jonathan H. Feinberg 

 KAIRYS, RUDOVSKY, MESSING & FEINBERG, LLP

 The Cast Iron Building

 718 Arch Street, Suite 501 South 

 Philadelphia, PA 19106 

 (215) 925-4400 

 (215) 925-5365 (fax) 

 Counsel for Plaintiff

 2

 The defense list of exhibits, plaintiff’s letter of April 19, 2007 requesting an offer of 

proof, and defense counsel’s responsive letter of April 23, 2007 are appended at Exhibit A. 

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CERTIFICATE OF SERVICE

 I hereby certify that on April 24, 2007, the foregoing Pretrial Memorandum was filed via 

the Court’s CM/ECF system, is available for viewing and downloading, and, as such, was served 

upon all parties. Additionally, a copy of said filing has been sent via first-class mail to counsel 

for defendant: 

Michael P. Laffey, Esq. 

Holsten & Associates 

One Olive Street 

Media, PA 19063 

 /s/ Jonathan H. Feinberg 

 Jonathan H. Feinberg 

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