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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH ESPOSITO and JOHN J. :

PETRUCCI, JR., :

:

Plaintiffs : Case No. 4:04-CV-475

:

v. : (Judge Jones)

:

LEONARD GALLI, DANIEL :

MIMNAUGH, :

:

Defendants. :

MEMORANDUM AND ORDER

August 9, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court are Motions for Summary Judgment (docs. 69, 71)

filed by Defendants Daniel Mimnaugh (“Mimnaugh”) and Leonard Galli (“Galli”)

(together, “Defendants”) on January 4, 2006. For the reasons that follow, the

Motions shall be granted in part and denied in part.

PROCEDURAL HISTORY:

The plaintiffs, Joseph Esposito (“Esposito”) and John J. Petrucci, Jr.

(“Petrucci”) (together, “Plaintiffs”) initiated this action by filing a complaint

pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle

District of Pennsylvania on March 5, 2004. In addition to Mimnaugh and Galli,

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the complaint named David J. Swartz (“Swartz”) as a Defendant; however, on

December 6, 2005, after the close of discovery, Plaintiffs filed a Stipulation for the

Voluntary Dismissal of Swartz. (Rec. Doc. 63). 

Plaintiffs’ civil rights action asserts violations of the First, Fourth, and

Fourteenth Amendment rights to the United States Constitution, § 1983 conspiracy

claims, as well as various state law claims. 

 On January 4, 2006, Defendants filed the instant Motions, which have been

briefed by the parties. The Motions are therefore ripe for disposition.

STANDARD OF REVIEW:

Summary judgment is appropriate if "there is no genuine issue as to any

material fact and . . . the moving party is entitled to judgment as a matter of law." 

Fed.R.Civ.P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340

(3d Cir. 1990). The party moving for summary judgment bears the burden of

showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357

(3d Cir. 1992). Summary judgment should not be granted when there is a

disagreement about the facts or the proper inferences which a fact finder could

draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84

(3d Cir. 1982). 

Initially, the moving party has a burden of demonstrating the absence of a

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genuine issue of material fact. See Celotex Corporation v. Catrett, 477 U.S. 317,

323 (1986). This may be met by the moving party pointing out to the court that

there is an absence of evidence to support an essential element as to which the nonmoving party will bear the burden of proof at trial. See id. at 325.

Rule 56 provides that, where such a motion is made and properly supported,

the non-moving party must then show by affidavits, pleadings, depositions,

answers to interrogatories, and admissions on file, that there is a genuine issue for

trial. See Fed. R. Civ. P. 56(e). The United States Supreme Court has commented

that this requirement is tantamount to the non-moving party making a sufficient

showing as to the essential elements of their case that a reasonable jury could find

in its favor. See Celotex, 477 U.S. at 322-23 (1986). 

It is important to note that “the non-moving party cannot rely upon

conclusory allegations in its pleadings or in memoranda and briefs to establish a

genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511

(3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the

light most favorable to the non-moving party, and where the non-moving party's

evidence contradicts the movant's, then the non-movant's must be taken as true." 

Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d

Cir. 1992)(citations omitted).

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 We note that Plaintiffs dispute the precise date as to when Galli learned about Exeter

Borough’s loan to one of its employees. (Rec. Doc. 93 at ¶ 5). 

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Still, "the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "As to materiality, the

substantive law will identify which facts are material." Id. at 248. A dispute is

considered to be genuine only if "the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Id.

STATEMENT OF RELEVANT FACTS:

The facts in this matter are largely disputed by the parties. We are presented

with detailed disputed factual summaries and extensive discovery material. We

will not attempt to conduct a piecemeal examination of each fact presented by the

parties, but will discuss the relevant factual background necessary to resolve the

pending Motions. We will, where necessary, view the facts and all inferences to be

drawn therefrom in the light most favorable to the non-moving party, Plaintiffs, in

our analysis of the pending Motions.

On or about January 29, 2002, Defendant Galli, in his capacity as an Exeter

Borough Police Officer, was engaged in a conversation with Michael Stoss

(“Stoss”), who was employed in the Public Works Department of Exeter Borough.1

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Stoss indicated to Galli that he had made a final payment to Exeter Borough (“the

Borough”) of $150 which he owed to the Borough since the Borough had paid for

Stoss to get his driver’s license back. Galli then had a conversation with Stoss’

brother, George Stoss, another Borough employee, who told Galli that Borough

funds had been used to pay off a money judgment which was the responsibility of

Stoss. Stated another way, Galli became aware that the Borough had made an

interest free loan in the amount of $800 to Stoss, a Borough employee, so that he

could pay off a personal judgment and get his driver’s license back. When George

Stoss testified that he asked Galli whether a personal loan to an employee was an

appropriate use of Borough funds and Galli said that he did not know, George

Stoss suggested that he should look into it.

Galli then submitted a written request to the Borough Secretary, Debra

Serbin (“Serbin”) for copies of all the documentation regarding the loan that had

been given to Stoss. Galli conducted an interview with Stoss at his residence on

February 6, 2002 in which Stoss confirmed that Borough Council had loaned him

money because the Council wanted Stoss to get his driver’s license reinstated. 

Galli subsequently secured a copy of the file documenting the loan to Stoss. Galli

also had a brief conversation with Exeter Borough Police Chief McNeill about the

loan to Stoss. Galli indicated in his investigation that Chief McNeill had advised

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him that the Borough Council wanted Stoss to get his license back because the

Borough Council did not want to pay someone to taxi Stoss around all day. At the

conclusion of Galli’s interviews, he turned over the records and information that he

had gathered to the Pennsylvania State Police (“PSP”). 

Defendant Mimnaugh asserts that Galli then approached Chief McNeil with

his findings, expressed his belief that a crime had been committed by Joseph

Esposito (“Esposito”) and John Petrucci (“Petrucci”), councilmen for the Borough,

and possibly others, and asked Chief McNeil to investigate it or to grant him

permission to investigate further. Chief McNeil forbade Galli to investigate further

and told him to refer the matter to the PSP. Plaintiffs assert that Galli approached

Chief McNeil and dispute that Galli expressed his belief that Plaintiffs and

possibly others had committed a crime. Rather, Plaintiffs maintain that Galli

testified that he “felt that there was a criminal act that had been committed by these

two gentlemen [Mr. Esposito and Mr. Petrucci].” (Rec. Doc. 97 at ¶ 6). Plaintiffs

then contend that such is evidence that Galli was targeting only Plaintiffs from the

beginning, even though their involvement with the check at issue was no more than

that of the other five councilmen. Plaintiffs note that Petrucci’s involvement was

far less than that of the other councilmen because he was not present for the work

session or vote and his discussions about the check were fewer than that of other

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councilmen. Id. 

We will now address factual circumstances concerning Galli and Mimnaugh,

to the extent relevant in the case sub judice. As teenagers, Galli and Mimnaugh

were introduced by a mutual friend and spent some time together socially. 

Plaintiffs further assert that Galli and Mimnaugh have known each other for over

twenty years and that they went on vacation together to Ocean City, Maryland. 

“Trooper Mimnaugh had been to Leonard Galli’s house and spent some time with

Galli’s mother, father and sister. Mimnaugh’s relationship with Galli is

sufficiently familiar that he spontaneously refers to Leonard Galli as ‘Lenny.’ As

part of his investigation, Trooper Mimnaugh actually told the Exeter Borough

Secretary Debra Serbin that he was a friend of Leonard Galli.” Id. at ¶8. In

addition, Galli knew that Mimnaugh was a PSP trooper assigned to the Organized

Crime Unit, and they worked out at the same gym. In fact, Galli approached

Mimnaugh at the gym and asked him whether the PSP would be interested in the

case. 

Mimnaugh told Galli that he would ask his supervisor, Corporal Kevin

Schmidt (“Corporal Schmidt”) whether the PSP was interested in investigating the

matter. Mimnuagh talked to Corporal Schmidt about the information that Galli had

relayed to him and Corporal Schmidt decided that the PSP would investigate the

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matter. Corporal Schmidt assigned the investigation to Trooper David Swartz

(“Swartz”) as the lead investigator. In that regard, Plaintiffs contend that the case

was assigned to Swartz because Mimnaugh had a conflict of interest due to his

friendship with Galli. “Despite Mimnaugh’s conflict of interest in the case, he

participated in interviews right from the very beginning of the investigation. 

Mimnaugh eventually took over from Swartz and became the affiant/swearing

witness on the Criminal Complaint and Affidavit of Probable Cause to arrest and

charge the plaintiffs with crimes.” Id. at ¶ 13. After Corporal Schmidt decided

that the PSP would investigate the matter and assigned the case to Swartz, Galli

provided copies of documents he had obtained and his report to the PSP. There is

a factual dispute between the parties as to whether everything contained in Galli’s

report is undisputedly true as Plaintiffs submit that inconsistencies, inaccuracies,

and potential fabrications are present. An additional factual dispute concerns

whether subsequent to providing the documents to the PSP, Galli played a role in

the decision to charge the Plaintiffs. Mimnaugh asserts that subsequent to

providing the documents to the PSP, Galli had no conversations with him, Swartz,

or the members of the Luzerne County Office of the District Attorney’s Office that

approved the filing of the charges in this matter, Assistant District Attorney

Andrew Duncan and District Attorney David Lupas, and played no role in the

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decision to charge Plaintiffs. (Rec. Doc. 90 at ¶ 17). 

After receiving the documents from Galli, Swartz interviewed the current

Borough Secretary, Serbin, the prior Borough Secretary, Carol Stolarick

(“Stolarick”), the recipient of the $800, Theodore J. Kerpovich, Jr. (“Kerpovich”),

and Esposito between February 20, 2002 and February 22, 2002. Mimnaugh

accompanied Swartz on these interviews. During her interview with Swartz and

Mimnaugh, Stolarick said that she wrote the February 12, 1998 check to

Kerpovich; however, it is disputed as to whether she wrote the check at the

direction of Petrucci. Stolarick also indicated that Esposito and Petrucci had a

discussion in her office about doing a payroll deduction for Stoss for repayment of

the loan. 

Stolarick told Swartz and Mimnaugh that Petrucci instructed her to transfer

federal grant money to the general fund to “pay the Leonard Galli civil suit,” and

provided them with a note from Petrucci directing her to make the transfers. In

response, Plaintiffs assert that this portion of the interview has no bearing on the

$800 check, or anything even tangentially related to the check. “However, it is

evidence that Mimnaugh and Swartz were not merely investigating this $800 loan

from Exeter Borough to an employee, but instead were targeting Mr. Petrucci for

whatever alleged improprieties they conceivably could uncover.” (Rec. Doc. 97 at

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 Plaintiffs assert that a review of the applicable minutes reveals that public discussion

about any issue was not recorded. (Rec. Doc. 97 at ¶ 34). 

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¶ 22). Stolarick told Swartz and Mimnaugh that she was uncomfortable with the

way money was handled in the Borough and she thought that the finances in the

Borough were poorly run and very unorganized. In addition, Stolarick testified

that she assumed she was to take direction from Petrucci and Esposito because they

were the ones who interacted with her and were the only members of the Finance

Committee. Moreover, Stolarick testified that no one other than Petrucci and

Esposito ever directed her to write checks.

Swartz was unable to continue the investigation because from late February

2002 until after Plaintiffs were arrested on April 2, 2002, he was detailed to

Reading, Pennsylvania for long-term investigation involving a wiretap. In

Swartz’s absence, Mimnaugh and Trooper Thomas Bachman (“Bachman”)

interviewed Petrucci. 

With regard to the loan at issue, it was not identified under “New Business”

on the Borough Council Meeting Agenda for January, February, or March 1998. 

Plaintiffs further note that the March 1998 Agenda lists the $800 check made

payable to Theodore Kerpovich under the heading “Prepaid Bills for the Month of

February.” There was no public discussion about the loan at a council meeting.2

While the prepaid bills were approved by council, neither the loan, nor the specific

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check to Kerpovich were specifically discussed or voted on at the council meeting. 

It is undisputed that the check was written on February 12, 1998; however, it is

also undisputed that the check was not given to Kerpovich until at least April 1998. 

Accordingly, Defendants argue that there was no reason for the check to be listed

under prepaid bills in February 1998, as prepaid bills encompass money that was

already disbursed before council got to the table.

During her deposition, Serbin testified that when she took the position of

Secretary-Treasurer for the Borough in April 1998, the $800 check to Kerpovich

was in her office and she did not know what it was for. Plaintiffs additionally note

that Serbin testified that Chief McNeil told her the purpose of the check and made

arrangements for it to be given to its payee. 

While Swartz was detailed to Reading, Mimnaugh received a call from the

Luzerne County District Attorney’s Office calling a meeting regarding the instant

matter. One purpose of the meeting was to determine whether charges could be

filed at the same time as the filing of charges against Petrucci in a separate

situation relating to a matter including one Carrie Gula. Mimnaugh told the caller

that he would bring the information they had obtained to the meeting for review by

the District Attorney’s Office and if, after reviewing it, they believed that there was

enough to proceed, the charges would be filed. In response, Plaintiffs assert that

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Mimnaugh chose to withhold critical information which would have caused the

District Attorney to tell Mimnaugh not to file the charges. Prior to this meeting,

Assistant District Attorney Andrew Duncan (“ADA Duncan”) had been assigned to

the case to provide legal advice. In addition, Mimnaugh provided a copy of the

Investigative Report to the individuals present at the meeting. The parties agree

that those definitely in attendance at the meeting were Mimnaugh, ADA Duncan,

and District Attorney Lupas. The District Attorney’s Office approved the filing of

charges. It is disputed as to whether at the time the District Attorney’s Office

approved the charges that they knew neither Esposito nor Petrucci had signed the

check. 

 Plaintiffs were charged with violations of 18 Pa.C.S. § 4113(a),

Misapplication of Entrusted Property and Property of Government of Financial

Institutions and with a violation of 18 Pa.C.S. § 903(a)(1), Criminal Conspiracy to

Commit Misapplication of Entrusted Property and Property of Government or

Financial Institutions. Arrest warrants for Plaintiffs were issued, and the

preliminary arraignment on these charges, as well as the charges against Petrucci

related to the Carrie Gula matter, were scheduled for April 2, 2002. The parties are

in dispute as to whether Plaintiffs were arrested by Mimnaugh or otherwise taken

into custody by him or other law enforcement personnel. Arrangements were made

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between the District Attorney’s Office and Plaintiffs’ counsel for them to turn

themselves in at the preliminary arraignment. At the preliminary arraignment,

Plaintiffs were each released on a $20,000 unsecured bond. Plaintiffs add that they

spent time in police custody at the State Police Barracks where they were

fingerprinted, booked, and had “mug shots” taken. (Rec. Doc. 97 at ¶ 56). At the

preliminary hearing on May 23, 2002, the charges were dismissed without

prejudice against Plaintiffs and charges have not been refiled. 

DISCUSSION:

A. First Amendment Claims

In Defendant Mimnaugh’s Motion, he argues that he is entitled to summary

judgment on Plaintiff’s First Amendment claims as he took no action against

Plaintiffs for their speech. “They [Plaintiffs] were not charged for talking about

misapplying entrusted funds. If all they had done was talk about it, they would not

have been charged with a crime. Rather, they were charged with actually making

an off-book, interest-free loan to a Borough employee to pay a personal debt. 

Counsel for Mimnaugh has found no authority to support First Amendment claim

in such circumstances, and therefore Mimnaugh maintains that he is entitled to

summary judgment on the First Amendment claims.” (Def. Mimnaugh’s Br. Supp.

Mot. Summ. J. at 15). Mimnaugh alternatively argues that if we find that his

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actions do rise to the level of a constitutional violation, he is entitled to summary

judgment on the basis of qualified immunity.

In response, Plaintiffs assert that they were prosecuted for their protected

political speech about governmental priorities and spending. Plaintiffs maintain

that it was discussion or “talk” about the advisability of the Borough making a loan

to an employee which caused Mimnaugh to file charges against Plaintiffs,

regardless of their actual participation in the vote and decision not to file charges

against the councilmen who actually voted to approve the loan. (Pls.’ Br. Opp.

Def. Mimnaugh’s Mot. Summ. J. at 13). In addition, Plaintiffs contend that

qualified immunity is not warranted as Mimnaugh withheld a large amount of

highly relevant information. “It was unreasonable to file charges against the

plaintiffs because any ‘approval’ Mimnaugh obtained from the District Attorney’s

Office was obtained only by withholding huge amounts of critical information

from that office.” Id. at 14. 

Speech on public issues and political matters lies at the heart of protected

speech. See Zapach v. Dismuke, 134 F. Supp. 2d 682, 687-88 (E.D. Pa. 2001)

(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992). Plaintiffs contend that

their speech with each other and other individuals as well as all votes at council

meetings were classical political speech (Pls.’ Br. Opp. Defs.’ Mot. Summ. J. at

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12-13). After a careful review of the record, we are in agreement with Plaintiffs

that their speech constitutes political speech which is deserving of First

Amendment protection. Indeed, and in that regard, in response to Plaintiffs’ First

Amendment retaliation claim, Defendants’ concede that Plaintiffs’ speech

constituted “protected activity.” (Def. Galli’s Br. Supp. Mot. Summ. J. at 14, n.3). 

As stated, Plaintiffs maintain that it was this protected speech that caused

Mimnaugh to file charges against them. Defendant Mimnaugh disagrees asserting

that it was actions, not “talk” that led to the filing of charges. (Def. Mimnaugh’s

Br. Supp. Mot. Summ. J. at 15, Def. Mimnaugh Reply Br. at 21). Accordingly, we

find that genuine issues of material fact exist concerning whether this protected

speech was critical in the decision to charge Plaintiffs, which precludes our

granting of summary judgment with respect to Plaintiffs’ First Amendment claims. 

Defendant Mimnaugh’s Motion is therefore denied with respect to Plaintiff’s First

Amendment Claims.

Defendant Mimnaugh alternatively argues that he should be entitled to

summary judgment based on qualified immunity “because a reasonable police

officer in Mimnaugh’s position would not have known that assisting Swartz in his

investigation, attending a meeting called by the District Attorney’s Office at which

that office approved the filing of charges, and charging plaintiffs with crimes

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approved by the District Attorney’s Office was constitutionally impermissible and

in violation of plaintiff’s clearly established First Amendment rights.” (Def.

Mimnaugh’s Br. Supp. Mot. Summ. J. at 15).

A police officer is entitled to qualified immunity where “a reasonable officer

could have believed that his or her conduct was lawful, in light of clearly

established law and the information in the officer’s possession.” Sharrar v.

Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (citing Hunter v. Bryant, 502 U.S.

224,227 (1991)(per curiam)). The Third Circuit Court of Appeals has adopted a

two-prong qualified immunity test. “In determining whether qualified immunity

applies, we ask: (1) whether the plaintiff has alleged the deprivation of an actual

constitutional right, and, if so, (2) whether the right was clearly established at the

time of the alleged violation.” United Artists Theatre Circuit, Inc. v. Township of

Warrington, PA, 316 F.3d 392 (3d Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194

(2001)). 

Plaintiffs contend that Defendants should not be entitled to qualified

immunity on grounds that Mimnaugh withheld large amounts of information from

the District Attorney, information which may have influenced the decision to

charge Plaintiffs with crimes. Specifically, Plaintiffs contend that information

including the fact that they did not sign the check and that Exeter council members

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voted to approve the loan were withheld at the meeting at which it was determined

to charge Plaintiffs with crimes. (Pls.’ Br. Opp. Defs.’ Mot. Summ. J. at 5-6). 

Defendant Mimnaugh counters that it is undisputed that these facts were known to

the members of the District Attorney’s office. Mimnaugh further asserts that it was

not necessary to identify everything “in the universe” that had not been done

during the investigation because such information was available in the

Pennsylvania State Police Incident Report. (Def. Mimnaugh’s Reply Br. Supp.

Mot. Summ. J. at 5-6). Therefore, after a careful review of the record, we can only

find that genuine issues of material fact exist regarding what the District Attorney

factually knew regarding the matter in question such that summary judgment is not

warranted. Put another way, we could only grant qualified immunity by

impermissibly resolving a factual dispute in favor of Defendants. Accordingly,

Defendants are not entitled to qualified immunity at this stage. Defendant

Mimnaugh’s Motion is denied to that extent.

In Defendant Galli’s Motion, he argues that he is entitled to summary

judgment on Plaintiffs’ First Amendment retaliation claim as such a claim is

amorphous and the record is bereft of evidence that Galli retaliated against

Plaintiffs or that Galli was instrumental in the issuance of criminal complaints

against Plaintiffs.

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Plaintiffs counter Galli’s argument by indicating that Galli wrongfully

asserts that there are no facts linking Galli to the decision to charge Plaintiffs. In

that vein, Plaintiffs maintain that Galli had initiated an investigation even though

he was directed not to pursue the matter. He communicated with Assistant District

Attorney Duncan about the matter. Defendant Mimnaugh told Mr. Petrucci that

Galli was “behind the entire incident, including the arrest.” (Pls.’ Br. Opp. Defs.’

Mot. Summ. J. at 12). Plaintiffs therefore argue that there is abundant evidence of

Galli’s involvement linking Galli to the decision to charge Plaintiffs.

The Third Circuit Court of Appeals has adopted a three-part test for First

Amendment retaliation claims. “Plaintiff must prove (1) that he engaged in

constitutionally-protected activity; (2) that the government responded with

retaliation; and (3) that the protected activity cause the retaliation. The threshold

requirement is that the plaintiff identify the protected activity that allegedly spurred

the retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). 

Defendant Galli concedes the first prong of the test, specifically that Plaintiffs

engaged in protected speech. (Def. Galli’s Br. Supp. Mot. Summ. J. at 14, n.3). 

The second and third prongs of the test are therefore the critical factors in

determining the viability of the retaliation claim. 

Galli argues that he did “nothing more than provide the accurate findings of

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a preliminary investigation to the State Police.” He further states that there was no

evidence of retaliation, that none of the offered information was false, and that

there was no evidence that he (Galli) was instrumental in the issuance of the

“citations” against Plaintiffs. (Def. Galli’s Br. Supp. Mot. Summ. J. at 14).

Plaintiffs offer counter evidence stating that Galli’s “investigation” was selfmotivated and that his meetings with Mimnaugh and the Assistant District

Attorney sufficiently tie him to the criminal charges later filed. Moreover,

statements allegedly made by Mimnaugh that Galli’s “head would explode” are

indicative of Galli’s personal interest in the investigation. As a result of these

genuine issues of material fact, we find that reasonable minds may differ as to

whether Defendants responded with retaliation and whether the protected speech

was the cause of the retaliation. Accordingly, Defendant Galli’s Motion is denied

with respect to Plaintiffs’ First Amendment retaliation claim.

B. Fourth Amendment Claims

With regard to Plaintiffs’ § 1983 malicious prosecution claims, Defendants

argue that Plaintiffs cannot prove the essential elements of their Fourth

Amendment claims. Specifically, Mimnaugh asserts that the proceeding was not

initiated without probable cause and Plaintiffs did not suffer a deprivation of

liberty consistent with the concept of seizure as a consequence of the legal

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proceeding. Galli maintains that there is no evidence that he initiated criminal

proceedings and the record establishes “categorically” that neither Plaintiff was

seized for purposes of a § 1983 malicious prosecution claim. 

In response, Plaintiffs assert that Defendants withheld critical information

from the District Attorney’s Office such that a full disclosure of facts was lacking

and a presumption of probable cause is not warranted in the case sub judice. 

Plaintiffs additionally maintain that their liberty was deprived to the extent that a

seizure occurred. Alternatively, Plaintiffs argue that if the Court finds that

Plaintiffs were not seized within the meaning of the Fourth Amendment, then the

Court should permit Plaintiffs’ malicious prosecution claims to proceed pursuant to

the Fourteenth Amendment. 

To prevail on a § 1983 malicious prosecution claim, Plaintiffs must prove

that: (1) Defendants initiated a criminal proceeding; (2) the criminal proceeding

ended in Plaintiffs’ favor; (3) the proceeding was initiated without probable cause;

(4) Defendants acted maliciously or for a purpose other than bringing Plaintiffs to

justice; and (5) Plaintiffs suffered a deprivation of liberty consistent with the

concept of seizure as a consequence of a legal proceeding. DiBella v. Borough of

Beachwood, 407 F.3d 599, 602 (3d Cir. 2005) (citing Estate of Smith v. Marasco,

318 F.3d 497, 521 (3d Cir. 2003)). 

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First, we note that Mimnaugh concedes the first, second, and fourth elements

of a § 1983 malicious prosecution claim. In that regard, Mimnaugh concedes that

as the affiant on the criminal complaints, he initiated the criminal proceedings

against Plaintiffs. He also concedes that the dismissal of the charges without

prejudice at the preliminary hearing, combined with the decision not to refile the

charges, satisfy the requirement that the criminal proceedings ended in Plaintiffs’

favor. In addition, Mimnaugh concedes, for purposes of the instant Motion, that

there are factual disputes as to whether he made certain statements to Plaintiffs. 

With regard to Defendant Galli, it appears that he focuses upon the first and

fifth elements of a § 1983 malicious prosecution claim, specifically, that he did not

initiate the criminal proceedings against Plaintiffs and that Plaintiffs did not suffer

a deprivation of liberty consistent with the concept of seizure as a consequence of a

legal proceeding.

Even assuming arguendo that Defendants both initiated the criminal

proceedings against Plaintiffs and that Defendants initiated the proceeding without

probable cause, we hold that Defendants are entitled to summary judgment on

Plaintiffs’ § 1983 malicious prosecution claims as such claims fail on the final

requisite element. In that regard, we find that Plaintiffs did not suffer a deprivation

of liberty consistent with the concept of seizure as a consequence of a legal

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proceeding, for the reasons that follow.

In this case, while arrest warrants were issued for Plaintiffs, arrangements

were made between the District Attorney’s Office and Plaintiffs’ counsel for them

to voluntarily turn themselves in at the preliminary arraignment. At the

preliminary arraignment, Plaintiffs were each released on a $20,000 unsecured

bond with no restrictions or conditions on their freedom of movement. At the

subsequent preliminary hearing, the charges against Plaintiffs were dismissed

without prejudice. Neither Plaintiff was ever incarcerated, transported in a police

vehicle, or handcuffed. 

The Third Circuit Court of Appeals has held that the requirement to appear

at court proceedings, without more, does not constitute a seizure for purposes of a

Fourth Amendment malicious prosecution claim. DiBella, 407 F.3d at 603; accord

Bristow v. Clevenger, 80 F. Supp. 2d 421 (M.D. Pa. 2000). Moreover, we agree

with Defendants that the recent Third Circuit Court of Appeals case, DiBella v.

Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005), is squarely on point with the

facts of the above-captioned case. In holding that when the only meaningful

restriction on one’s liberty is the compulsion to appear at mandatory court

proceedings, the Third Circuit reasoned as follows:

Appellants reliance on dicta from Gallo [v. City of Philadelphia, 161

F.3d 217 (3d Cir. 1998)] is misplaced because ‘prosecution without

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3

 In that regard, we find it notable that Plaintiffs’ submission in opposition to Defendant

Galli’s Motion candidly states, in pertinent part, as follows: “While the restrictions on them

[Plaintiffs] were more severe than those on the plaintiffs in DiBella, a fair reading of DiBella

would certainly permit this Court to grant judgment for defendants on the Fourth Amendment

malicious prosecution claim.” (Pls.’ Br. Opp. Def. Galli’s Mot. Summ. J. at 19-20). 

23

probable cause is not, in and of itself, a constitutional tort.’ Id. at 222

(citing Albright, 510 U.S. at 274). The type of constitutional injury

the Fourth Amendment is intended to redress is the deprivation of

liberty accompanying prosecution, not prosecution itself. Id. 

If Gallo was a ‘close question,’ here there could be no seizure

significant enough to constitute a Fourth Amendment violation in

support of a Section 1983 malicious prosecution action. Gallo was

arrested and subjected to significant pretrial restrictions. DiBella and

McLaughlin were only issued a summons; they were never arrested;

they never posted bail; they were free to travel; and they did not have

to report to Pretrial Services. Their liberty was restricted only during

the Municipal Court trials and the Fourth Amendment does not extend

beyond the period of pretrial restrictions. See, Torres v. McLaughlin,

163 F.3d 169, 174 (3d Cir. 1998) (‘the limits of Fourth Amendment

protection relate to the boundary between arrest and pretrial

detention.’); see also, Donahue v. Gavin, 280 F.3d 371, 381 (3d Cir.

2002) (same). 

Pretrial custody and some onerous types of pretrial, non-custodial

restrictions constitute a Fourth Amendment seizure. DiBella and

McLaughlin failed to state a cause of action for malicious prosecution

because their attendance at trial did not qualify as a Fourth

Amendment seizure. 

DiBella, 407 F.3d at 602-3. Accordingly, as Plaintiffs’ attendance at the

preliminary arraignment and the preliminary hearing does not amount to a seizure

under the Fourth Amendment, Defendants’ Motions are granted with respect to

Plaintiffs’ § 1983 malicious prosecution claims.3

 

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C. Fourteenth Amendment Claims

We will now address Plaintiffs’ assertion that even if the Court finds that

Plaintiffs were not seized within the meaning of the Fourth Amendment, that this

Court should nonetheless permit their federal malicious prosecution claims to

proceed to trial under the Fourteenth Amendment. A careful review of Plaintiffs’

submissions appears to indicate that in light of the Third Circuit’s decision in

DiBella and its conceded effect upon Plaintiff’s Fourth Amendment claim,

Plaintiffs are advancing a separate Fourteenth Amendment substantive due process

claim. 

As accurately submitted by Mimnaugh, the United States Supreme Court has

instructed that “[t]he first inquiry in any § 1983 suit is to isolate the precise

constitutional violation with which [the defendant] is charged.” Graham v.

Connor, 490 U.S. 386, 394 (1989)(internal citations omitted) (quoting Baler v.

McCollan, 443 U.S. 137, 140 (1979)). The Supreme Court has stated that “[t]he

Framers considered the matter of pretrial deprivations of liberty and drafted the

Fourth Amendment to address it.” Albright v. Oliver, 510 U.S. 266, 274 (1994). 

However, the accused is not entitled to judicial oversight or review of the decision

to prosecute, Id. (quoting Gerstein v. Pugh, 420 U.S. 104, 11 (1975)), and

“prosecution without probable cause is not, in and of itself, a constitutional tort.” 

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DiBella, 407 F.3d at 602-3 (quoting Gallo, 171 F.3d at 222). 

Plaintiffs attempt to rely upon Torres v. McLaughlin, 163 F.3d 169 (3d Cir.

1998), to argue that they should be permitted to pursue a malicious prosecution

claim under the Fourteenth Amendment; however, we find that Plaintiffs’ reliance

upon Torres is misplaced. In Torres, the Third Circuit addressed the unique

circumstance of a claim arising from post-conviction incarceration, which is clearly

factually distinguishable from the instant case. We find that Plaintiffs’ attempted

claim, if they had one, would on these facts have to be grounded in the Fourth

Amendment; however, as previously noted, Plaintiffs did not suffer a seizure. As

such, they do not have a viable Fourth Amendment claim. Plaintiffs’ effort to

create an alternative claim for malicious prosecution under the Fourteenth

Amendment is novel, but ultimately a failure. Not only does it lack precedential

support, but if allowed would represent a sea change in the way malicious

prosecution cases are measured. Assuredly, the floodgates would open. 

Accordingly, to the extent that Plaintiffs argue that the Court should permit their

federal malicious prosecution claims to proceed under the Fourteenth Amendment,

Defendants are entitled to summary judgment in that regard. 

D. Section 1983 Conspiracy Claims

In order to establish a § 1983 conspiracy claim, Plaintiffs “must show ‘a

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combination of two or more persons to do a criminal act, or to do a lawful act by

unlawful means for an unlawful purpose.’” Panayotides v. Rabenold, 35 F. Supp.

2d 411, 419 (E.D. Pa. 1999), aff’d, 210 F.3d 358 (3d Cir. 2000) (quoting

Hammond v. Creative Financial Planning, 800 F. Supp. 1244,1248 (E.D. Pa.

1992)). Both Defendants assert that there is insufficient evidence demonstrating

any “communication, consultation, cooperation or command” from which a

conspiracy or agreement can be inferred. (Def. Galli’s Br. Supp. Mot. Summ. J. at

15, Def. Mimnaugh’s Br. Supp. Mot. Summ. J. at 24). Plaintiffs disagree and cite

evidence, including two meetings between Galli and Mimnaugh, as well as

separate statements made by Mimnaugh to the Plaintiffs that Galli’s “head would

blow off” if the Plaintiffs were not charged with crimes. (Pls.’ Br. Opp. Def.

Galli’s Mot. Summ. J. at 13-14, Pls.’ Br. Opp. Def. Mimnaugh’s Mot. Summ. J. at

27-28). Alternatively, Defendant Mimnaugh contends that summary judgment is

appropriate because Plaintiffs have failed to demonstrate a violation of their

constitutional rights. (Def. Mimnaugh’s Br. Supp. Mot. Summ. J. at 24). 

Mimnaugh relies on Garner v. Township of Wrightstown, 819 F. Supp. 435, 445

n.7 (E.D. Pa. 1993) (quoting Defeo v. Sill, 810 F.Supp. 648, 658 (E.D. Pa. 1993),

aff’d, 16 F.3d 403 (3d Cir. 1993)) which states that in the absence of a

constitutional deprivation, there can be no liability under § 1983. However, as

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previously explained, summary judgment is inappropriate at this juncture with

regard to Plaintiffs’ First Amendment claims. Therefore, we do not find that

Plaintiffs have failed to demonstrate a violation of their First Amendment

constitutional rights. Moreover, Plaintiffs offered sufficient evidence of

communications and personal statements made by Defendants to appropriately

dispute Defendants’ assertion that there is no evidence of a conspiracy. 

Defendants’ Motions are accordingly denied with respect to Plaintiffs’ § 1983

conspiracy claims.

E. Equal Protection Claims

Plaintiffs claim to have presented sufficient evidence to sustain an Equal

Protection Clause claim. They assert that only they were charged with crimes in

connection with the $800 check, while other council members who were present at

the vote to approve the check, or who actually signed the check, were not charged

with the same crimes. Plaintiffs further assert that an Equal Protection analysis

should proceed under the strict scrutiny standard of review because they were

charged for exercising a fundamental constitutional right, namely discussing policy

choices for a governmental entity. This test requires that government actions can

be sustained only if “they are suitably tailored to serve a compelling state interest.” 

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). (Pls.’ Br. Opp.

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Def. Mimnaugh’s Mot. Summ. J. at 23-24, Pls.’ Br. Opp. Def. Galli’s Mot. Summ.

J. at 15-16).

In response, Defendant Mimnaugh argues that this claim was not previously

asserted in the complaint, no discovery was completed on the claim, and Plaintiffs’

counsel did not mention it when discussing Plaintiff’s Fourteenth Amendment

claims with counsel prior to the filing of summary judgment motions. (Def.

Mimnaugh’s Reply Br. Supp. Mot. Summ. J. at 24, n.23). “In other words, until

service of plaintiffs’ opposition brief, Mimnaugh had absolutely no notice that this

claim existed. To the extent that summary judgment is denied on this claim,

Mimnaugh maintains that he has not had a fair opportunity to conduct discovery

with respect to this claim, and would request that the Court reopen discovery to

allow him to do so and file a supplemental motion for summary judgment.” Id. 

We initially note that on March 27, 2006, we approved a stipulation by the

parties to move the trial term in the case sub judice to January 2007. (Rec. Doc.

109). Inasmuch as Defendant Mimnaugh is arguing surprise with regard to

Plaintiffs’ Equal Protection Claim and asserts a lack of notice regarding the

existence of this claim, we find that it would be inappropriate and imprudent under

the circumstances to comment on the merits of the claim at this juncture. As the

Court adopted the parties’ stipulation to move the trial term to January 2007, the

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current discovery cut-off date is September 18, 2006 and the dispositive motion

cut-off date is October 2, 2006, in accordance with the Court’s calendar. 

Accordingly, after conducting appropriate discovery on Plaintiff’s Equal Protection

Claim, Defendants reserve the right to file a supplemental summary judgment

motion restricted to Plaintiffs’ Equal Protection Claim on or before October 2,

2006, if they so desire. 

F. State Law Claims

We initially note that by agreement of counsel, Plaintiffs are not asserting

state law claims contained in Counts Three, Four, Five, Eight, Nine, and Ten

against Defendant Mimnaugh. We will therefore determine whether Plaintiffs have

stated the following state law claims as against Defendant Galli. 

i. Malicious Prosecution

Galli again argues, here as it relates to the state law claim for malicious

prosecution, that there is no evidence that he initiated the criminal proceeding

against Plaintiffs and that his only involvement was the act of providing

information to the PSP that both Plaintiffs admit was not false. Galli therefore

contends that Plaintiffs’ state law malicious prosecution claim must be dismissed. 

In response, Plaintiffs assert that the complaint alleged a conspiracy to commit

malicious prosecution claim against Galli, which in effect ties him to Mimnaugh’s

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actions in initiating the proceedings. Plaintiffs thus maintain that sufficient

evidence exists for Galli to be held liable for conspiracy to commit malicious

prosecution. 

In Counts Three and Eight of their complaint, Plaintiffs allege malicious

prosecution claims which indicate, in part, that Defendants “conspired to cause,

and actually caused, criminal proceedings to be initiated against [Plaintiffs],

resulting in [their] arrest. (Rec. Doc. 1 at ¶¶ 29-34, 48-53). 

Initially, we note that Plaintiffs’ cause of action for civil conspiracy only

exists if there is a cause of action for the underlying act. Simmons v. Poltrone,

1997 WL 805093 at *5 (E.D. Pa. 1997); Gordon v. Lancaster Orthopedic Hosp.

Assoc., Inc., 489 A.2d 1364, 1371 (Pa. Super. Ct. 1985) (holding that where there

was no basis for defamation there could be no action for conspiracy to defame). 

Accordingly, if we find that Plaintiffs have failed to state a cause of action for

malicious prosecution, then no action for conspiracy to commit malicious

prosecution can lie.

In Pennsylvania, a plaintiff alleging common law malicious prosecution

must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal

proceeding ended in the plaintiff’s favor; (3) the proceeding was initiated without

probable cause; and (4) the defendants acted maliciously or for a purpose other

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than bringing the plaintiff to justice. Merkle v. Upper Dublin Sch. Dist., 211 F.3d

782, 791 (3d Cir. 2000); see also Corrigan v. Central Tax Bureau of Pa., Inc., 828

A.2d 502, 505 (Pa. Cmwlth. 2003).

Although Defendant Galli has argued that he did nothing more than provide

the accurate findings of a preliminary investigation to the PSP, Plaintiffs have

presented counter evidence revealing the fact that Galli may have maintained a

self-motivated, personal interest in the investigation of Plaintiffs. In addition and

as previously noted, a factual dispute exists between the parties regarding whether

subsequent to providing the relevant documents to the PSP, Galli played a role in

the decision to charge the Plaintiffs. 

The United States District Court for the Eastern District of Pennsylvania has

recently explained that a court’s inquiry should be “whether the defendant either

directly instituted the proceedings against the plaintiff or can be charged with the

responsibility for the institution of the proceedings.” Cooper v. Muldoon, 2006

U.S. Dist. LEXIS 23388 at * 16 (E.D. Pa. Apr. 26, 2006). While we are in

agreement with Galli that Mimnaugh instituted the criminal proceedings against

Plaintiffs as he was the affiant on the criminal complaints, a factual issue remains

as to whether Galli can be charged with the responsibility for the institution of the

proceedings based upon a conspiracy or agreement with Mimnaugh that resulted in

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the institution of criminal charges against Plaintiffs. While we find this claim to be

novel and perhaps tenuous, with a lack of clear guidance in the caselaw, the better

practice is to deny summary judgment under the circumstances. It is important to

additionally note that genuine issues of material fact exist regarding whether the

proceeding brought against Plaintiffs was initiated without probable cause and

whether Defendant Galli acted maliciously or for a purpose other than bringing

Plaintiffs to justice. Summary Judgment is accordingly denied regarding

Plaintiffs’ state law malicious prosecution claim against Galli. 

ii. Abuse of Process

After a careful review of the record and applicable case law, we agree with

Defendant Galli that Plaintiffs’ abuse of process claims must be dismissed, for the

reasons that follow.

The Pennsylvania Supreme Court has described abuse of process as follows:

The gist of an action for abuse of process is the improper use of

process after it has been issued, that is a perversion of it. An abuse is

where the party employs it for some unlawful object, not the purpose

which it is intended by the law to effect; in other words, a perversion

of it . . . abuse of civil [or criminal] process is concerned with a

perversion of a process after it is issued. 

McGee v. Feege, 535 A.2d 1020, 1023 (Pa. 1987) (citations omitted); see also

Gleeson v. Robson, 2005 WL 1210948 at *29 (M.D. Pa. 2005). Additionally, in

order to state a claim for abuse of process, the plaintiff must allege that the

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defendant: (1) used a legal process against the plaintiff; (2) primarily to accomplish

a purpose for which the process was not designated, and (3) harm has been caused

to the plaintiff. Gleeson, 2005 WL 1210948 at *29; see also Douris v. Schweiker,

229 F. Supp. 2d 391, 404 (E.D. Pa. 2002). Galli accurately submits that a claim for

abuse of process requires that the plaintiff offer some proof of a “definite act or

threat not authorized by the process, or aimed at an objective not legitimate in the

use of the process.” Gleeson, 2005 WL 1210948 at *29. Examples of actions that

are recoverable under the abuse of process tort include extortion by means of

attachment, execution or garnishment, and blackmail by means of arrest or criminal

prosecution. Id. “There is no cause of action for abuse of process if the claimant,

even with bad intentions, merely carried out the process to its authorized

conclusion.” Id. Additionally, the fact that judicial process was initiated with a

bad motive is not enough; an allegation of coercive use of the process is required. 

Id.; see also Internet Billions Domain v. Venetian Casino Resort, LLC, 2002 WL

1610032 at *3 (E.D. Pa. May 31, 2002). 

Although Plaintiffs agree with Galli that a claim for abuse of process

requires that such occurred after the process is issued, they argue that after the

process was issued, “Galli’s appearance at the preliminary arraignment simply to

gawk at the humiliated plaintiffs is sufficient to proceed on this claim.” (Pls.’ Br.

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Opp. Def. Galli’s Mot. Summ. J. at 23). We do not find that Galli’s mere presence

at Plaintiffs’ preliminary arraignment makes out a claim for abuse of process. 

Moreover, Galli’s presence at Plaintiffs’ preliminary arraignment does not in our

view constitute improper use of process after it has been issued, sufficient to be a

“perversion” of such process. See McGee, 535 A.2d at 1023; see also Gleeson,

2005 WL 1210948 at *29. While it may have been unseemly, it cannot be elevated

to the degree that Plaintiffs seek in aid of this portion of their action. Accordingly,

Defendant Galli’s Motion is granted with respect to Plaintiffs’ abuse of process

claims. 

iii. Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress (“IIED”) is defined

under Pennsylvania law as “[o]ne who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another is subject to

liability for such emotional distress, and if bodily harm to the other results from it,

for such bodily harm.” Dixon v. Boscov’s Inc., 2002 WL 1740583 at *3 (E.D. Pa.

2002) (quoting Restatement (Second) of Torts § 46). In addition, courts have been

wary to allow recovery for a claim of IIED. “Only if conduct which is extreme or

clearly outrageous is established will a claim be proven.” Dixon, 2002 WL

1740583 at *3 (quoting Shaner v. Synthes, 204 F.3d 494, 507 (3d Cir. 2000)). 

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Stated another way, the United States District Court for the Eastern District of

Pennsylvania has explained that “[l]iability has been found only where the conduct

has been so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious and utterly intolerable

in a civilized community.” Fox v. Horn, 2000 WL 49374 at *9 (E.D. Pa. 2000). 

Finally, we note that to state a claim for IIED under Pennsylvania law, a plaintiff

must demonstrate a physical injury, harm or illness caused by the defendant’s

conduct. Id.; see also Rolla v. Westmoreland Health Sys., 651 A.2d 160, 163 (Pa.

Super. Ct. 1994). “There must be objective proof supported by competent medical

evidence that the plaintiff actually suffered the claimed distress.” Gleeson, 2005

WL 1210948 at *30. 

Plaintiffs’ IIED Claims, counts five and ten of the complaint, fail to allege a

physical injury, harm or illness caused by Defendant Galli’s conduct. In both

counts, Plaintiffs assert that “Defendants, by their extreme and outrageous conduct,

intentionally or recklessly caused [Plaintiffs] to suffer severe emotional distress.” 

(Rec. Doc. 1 at ¶¶ 39-40, 58-59). Apart from failing to allege a physical injury, the

record is devoid of conduct which is extreme or clearly outrageous by Defendant

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4

 In their submission, Plaintiffs refers the Court to Gleeson v. Robson, 2005 WL 1210948

(M.D. Pa. 2005), in which our colleague Chief Judge Vanaskie held that there was sufficient

evidence to warrant submission of the IIED claim to a jury where the defendants charged a

medical doctor with crimes without probable cause. Plaintiffs submit that the Chief Judge noted

the “intent to sensationalize” the issue, and found that “[i]ts devastating impact on a health care

professional is readily apparent.” Gleeson, 2005 WL 1210948 at *30. 

While we have no reason to contest the assertion that Plaintiffs’ arrest with its suggestion

of financial improprieties by two councilmen had a detrimental effect on them, we find the

Gleeson case which involved a “devastating impact on a health care professional” based upon

the nature and number of charges brought and suggesting an intent to sensationalize the issue to

be factually distinguishable from the instant case. In addition, Chief Judge Vanaskie

acknowledges that the initiation of a criminal prosecution without probable cause may not

support a cause of action for IIED in all cases and cites to appropriate case law in support

thereof. Id.; see also Simmons, 1997 WL 805093 at *4-5 (finding conduct was not outrageous

when defendants conspired to have plaintiff falsely arrested and charged for burglary). 

36

Galli sufficient to state a claim under IIED.4 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Defendant Galli’s Motion for Summary Judgment (doc. 69) is granted

in part and denied in part.

2. Defendant Mimnaugh’s Motion for Summary Judgment (doc. 71) is

granted in part and denied in part.

3. Summary Judgment is granted with respect to Plaintiffs’ Fourth

Amendment malicious prosecution claims, Fourteenth Amendment

malicious prosecution claims, state law abuse of process claims, and

state law intentional infliction of emotional distress claims.

4. Summary Judgment is denied with respect to Plaintiffs’ First

Amendment claims, § 1983 conspiracy claims, and state law

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malicious prosecution claim.

5. With regard to Plaintiff’s Equal Protection Claim, after conducting

appropriate discovery on such claim, Defendants reserve the right to

file a supplemental Summary Judgment Motion restricted to

Plaintiffs’ Equal Protection Claim on or before October 2, 2006, the

dispositive motion deadline, if they so desire. 

s/ John E. Jones III

John E. Jones III

United States District Judge

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