2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-5-2011

Shelly Ulitchney v. Jeff Ruzicki

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1301

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Recommended Citation

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 10-1301

SHELLY ULITCHNEY, 

 Appellant.

v.

JEFF RUZICKI; MARK MALLOY;

JOHN DOES 1-5

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

(D. C. No. 3-07-cv-02189)

District Judge: Hon. Malachy E. Mannion

Argued on November 2, 2010

Before: SCIRICA, STAPLETON and ROTH, Circuit Judges

(Opinion filed January 5, 2011)

Barry H. Dyller, Esquire (Argued)

Shelley L. Centini, Esquire

Dyller Law Firm

Gettysburg House

83 North Franklin Street

Wilkes-Barre, PA 187801

Counsel for Appellant
2

Thomas W. Corbett, Jr.

Attorney General

J. Bart DeLone, Esquire (Argued)

Senior Deputy Attorney General 

Calvin R. Koons, Esquire

Senior Deputy Attorney General 

John G. Knorr, III, Esquire

Chief Deputy Attorney General 

Chief, Appellate Litigation Section

Office of Attorney General 

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellee

O P I N I O N

ROTH, Circuit Judge:

Shelly Ulitchney appeals a post-trial grant of judgment to defendant on the section 

1983 claims that she asserted against a state parole officer, Jeff Ruzicki, for his 

warrantless entry into her home to arrest a parole violator. For the reasons that follow, 

we will affirm.

I. Background

A. Facts

On July 17, 2006, after serving a prison sentence for convictions related to 

possession of unlicensed firearms and possession of cocaine with intent to distribute, 

Claudie Robinson was granted parole from state prison. Although Robinson was 

required to report to the parole office in Reading, Pennsylvania, he absconded to WilkesBarre. There, Robinson met Ulitchney in October 2006 and they began dating. 
3

Ulitchney owns and resides in a house at 305 Park Avenue in Wilkes-Barre. 

Robinson spent a significant amount of time at the Ulitchney residence. With 

Ulitchney‟s assistance and permission, Robinson applied for and obtained a state 

photographic identification card, Social Security card, and birth certificate, all listing the 

305 Park Avenue address as his designated residence. Throughout this period, Ulitchney 

did not know that Robinson was on parole or that he had failed to report to parole, but she 

did know that Robinson had been in prison. 

Ruzicki learned from a parole agent in Reading that Robinson had recently 

obtained a state photographic identification card with 305 Park Avenue listed as his 

address. Ruzicki then provided a photograph of Robinson to Parole Agent Terry Vieney

and directed him to surveil the 305 Park Avenue residence for any sign of Robinson. On 

December 11, Vieney observed a man who appeared to be Robinson enter the 305 Park 

Avenue residence; he notified Ruzicki. Vieney continued to surveil the residence until 

Ruzicki arrived shortly thereafter. Ruzicki had assembled a team of four members of the 

Wilkes-Barre Police to assist him in arresting Robinson -- in part because a Wilkes-Barre 

Police Detective had advised Ruzicki that going to that residence was “a high-risk 

situation” due to Ulitchney‟s association with drug-dealers. Ruzicki did not have an 

arrest warrant or a search warrant and had not completed a forty-eight hour detainer form 

for Robinson. 

Ruzicki, in plain clothes, knocked and then pounded on the front door. One 

uniformed officer waited at his side and the others stood watch in back. Ulitchney asked 

who was at the door, and Ruzicki explained that he was a parole officer seeking 
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Robinson. Ulitchney then opened the door slightly and requested that Ruzicki give her a 

minute to put her dogs away. Ulitchney closed the door and went to the back of the 

house to put one of her dogs into its crate. Ruzicki began pounding on the door again. 

The longer Ruzicki waited at the door, the more he began to fear for his safety so that he 

took out his firearm. When Ulitchney again opened the door a few inches, Ruzicki 

pushed his body up against the door. Ulitchney pushed back. Ruzicki then pointed his 

finger at her, striking her in the forehead, and held his gun inches from her forehead. As 

Ruzicki entered, he saw Robinson walking down the stairs from the second floor. He 

raised his gun at Robinson. Robinson surrendered peacefully. From the first knock on 

the door until Ruzicki‟s entry into the house, approximately 10 minutes had elapsed. 

B. Procedural History

On December 3, 2007, Ulitchney filed a 42 U.S.C. § 1983 action in the Middle 

District of Pennsylvania, alleging that Ruzicki‟s actions amounted to an illegal entry and 

seizure in violation of the Fourth and Fourteenth Amendments. 

After discovery, Ruzicki moved for summary judgment. The District Court 

granted the motion as to Ulitchney‟s Fourteenth Amendment claim and her Fourth 

Amendment illegal seizure claim but denied the Motion as to her Fourth Amendment 

illegal entry claim. With regard to this claim, the District Court found that, though 

Ruzicki was a parole agent, his lack of a warrant or detainer for the arrest of Robinson 

rendered Ruzicki‟s entry into Ulitchney‟s residence unlawful, regardless of whether 

Ruzicki had reason to believe that Robinson resided and was present at 305 Park Avenue. 
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The District Court found that exigent circumstances were lacking but did find a genuine 

issue of material fact as to whether Ulitchney consented to Ruzicki‟s entry. 

Prior to trial on the consent issue, the District Court resolved the parties‟ motions 

in limine and addressed a stipulation that the parties had proffered. First, the District 

Court ruled from the bench that, under Rule 404(b), it would exclude evidence relating to 

a prior incident when Ruzicki forcibly entered a residence. Next, the court turned to the 

parties‟ stipulation: 

It is hereby agreed by the parties that neither defendant Jeff Ruzicki nor any 

other law enforcement official present at Shelly Ulitchney‟s home 

possessed any warrant on December 11, 2006 when they approached Shelly 

Ulitchney‟s residence. When a law enforcement official does not possess a 

warrant, that official may only enter the private residence of an individual 

such as plaintiff Shelly Ulitchney with the voluntary consent of that 

individual.

Regarding the stipulation, Ruzicki clarified to the District Court that he still 

adhered to his summary judgment argument that he did not need to possess a warrant for 

his entry to be legal and that he wished this issue to be preserved. The stipulation was 

read into the record and the District Court instructed the jury to accept the “stipulation of 

fact” to be “binding and conclusive for the purposes of this trial.” 

After a two day trial, the jury returned a verdict in favor of Ulitchney, finding that 

Ruzicki had entered Ulitchney‟s residence without her consent and awarding her 

compensatory damages of $13,000 and punitive damages of $4,000. 

Ruzicki filed a post-trial motion for judgment as a matter of law, renewing his 

argument that Payton v. New York, 445 U.S. 573 (1980) authorized his warrantless entry 

into Ulitchney‟s residence for the purposes of arresting a parolee reasonably believed to 
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be present and residing therein.1 On December 30, 2009, the District Court granted the 

post-trial motion in Ruzicki‟s favor and acknowledged that “its prior ruling was in error.” 

The court found that a parole officer may make a warrantless arrest of a parolee in a 

residence where the parole officer has reason to believe the parolee resides and is present. 

After finding Ruzicki‟s entry into Ulitchney‟s home constitutional, the District Court 

entered a final judgment in favor of Ruzicki. Ulitchney appealed.

III. Discussion2

Ulitchney argues that the District Court erred in (1) entering post-trial judgment in 

favor of Ruzicki following its conclusion that a parole officer may enter a home –

without a warrant or consent – where the officer has reason to believe a parole violator 

resides and is present within; (2) setting aside a joint stipulation which formed the basis 

for the parties‟ presentation of evidence and argument at trial; (3) denying Ulitchney‟s 

motion in limine to admit evidence, under Rule 404(b), of Ruzicki‟s engagement in prior, 

similar acts;3and (4) granting summary judgment in favor of Ruzicki with respect to 

Ulitchney‟s illegal seizure and due process claims.4

 

1 Ruzicki also raised this argument at the summary judgment stage and at the close 

of Ulitchney‟s trial presentation. 

2

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have

jurisdiction under 28 U.S.C. § 1291. 

3 Because we will affirm the judgment as a matter of law in favor of Ruzicki, we 

need not consider whether the District Court erred in applying Rule 404(b).

4 Because we find no constitutional violation, we need not consider Ruzicki‟s claim 

of qualified immunity. 
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A. Whether a Parole Officer may make a warrantless entry into a residence

 when he has reason to believe a parolee resides and is present there.

We review de novo a motion for judgment as a matter of law and apply the same 

standard as a district court. Curley v. Klem, 499 F.3d 199, 205-06 (3d Cir. 2007). We 

conclude that the District Court properly denied Ulitchney‟s Fourth Amendment illegal 

entry claim. Under Payton, “an arrest warrant founded on probable cause implicitly 

carries with it the limited authority to enter a dwelling in which the suspect lives when 

there is reason to believe the suspect is within.” 445 U.S. at 603. As we have interpreted 

this rule, a law enforcement officer in possession of an arrest warrant may enter a 

residence when he has “a reasonable belief the arrestee (1) lived in the residence, and (2) 

is within the residence at the time of entry.” United States v. Veal, 453 F.3d 164, 167 (3d 

Cir. 2006) (internal quotation omitted).5 

In the parole context, the warrant requirement and level of suspicion required to 

effectuate an arrest in a home are relaxed because parole is a part of the continuum of 

state-imposed punishments. Samson v. California, 547 U.S. 843, 850 (2006); Griffin v. 

Wisconsin, 483 U.S. 868, 875-80 (1987). Moreover, Pennsylvania law authorizes parole 

officers “to arrest without warrant, writ, rule or process any parolee or probationer under 

the supervision of the board for failing to report as required by the terms of his probation 

 

5 Ulitchney argues that Steagald v. United States, 451 U.S. 204 (1981), applies here 

because Ruzicki was entering a third party‟s house. Steagald announced a corollary to 

Payton: “the Fourth Amendment does not permit police to enter a third person‟s home to 

serve an arrest warrant on a suspect.” United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 

2005) (discussing Steagald, 451 U.S. at 211-14). Steagald, however, does not deal with 

the situation of a parole violator when there is an entry into the place where a parole 

violater is present and is reasonably believed to reside. Steagald is therefore 

distinguishable.
8

or parole or for any other violation of the probation or parole.”6 61 PA. STAT. ANN. § 

6152. 

Here, Ruzicki had probable cause to believe that Robinson had violated parole by 

failing to report and that Robinson resided and was present within the 305 Park Avenue 

residence. Ruzicki knew that Robinson had used that address to obtain official 

government documents. Moreover, Vieney spotted Robinson entering 305 Park Avenue 

and observed the house until Ruzicki entered it. Thus, Ruzicki, as a parole officer 

pursuing a parole violator, did not violate the Fourth Amendment by entering Ulitchney‟s 

residence without a warrant. See United States v. Hill, 967 F.2d 902, 910 (3d Cir. 1992). 

B. Whether the District Court properly determined that the stipulation, 

 addressing a question of law, was non-binding.

Ulitchney contends, however, that the stipulation requiring voluntary consent to 

enter the residence bound the parties and that the District Court improperly ignored it in 

granting judgment to Ruzicki. We do not agree. 

Our review of the legal effect of a stipulation is plenary. Coltec Indus. v. 

Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). It is well-settled that courts “are not bound 

by the parties‟ stipulations concerning questions of law.” In re Mintze, 434 F.3d 222, 228 

(3d Cir. 2006). It is a similarly “well-recognized rule of law that valid stipulations 

entered into freely and fairly, and approved by the court, should not be lightly set aside.” 

 

6

Even in the absence of a statute authorizing warrantless arrests, this Court has 

“concluded that a parolee‟s car or home can be searched on the basis of reasonable 

suspicion alone.” United States v. Baker, 221 F.3d 438, 444 (3d Cir. 2000); see also

United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992). We therefore reject Ulitchney‟s 

additional argument that Pennsylvania regulation, 37 PA. CODE § 71.1, limits parole 

agents‟ warrantless entry. See Virginia v. Moore, 553 U.S. 164, 171-74 (2008).
9

Waldorf v. Shuta, 142 F.3d 601, 616 (3d Cir. 1998) (internal quotation omitted) 

(emphasis added). A stipulation of law, however, is invalid, and must be distinguished 

from a stipulation of fact. United States v. Reading Co., 289 F.2d 7, 9 (3d Cir. 1961) 

(upholding a factual stipulation, because, in part, it “is not a stipulation of the controlling 

law, which the parties could not validly make”). 

Accordingly, to the extent the stipulation at issue purported to set forth the 

relevant law, it did not preclude the District Court from considering Ruzicki‟s legal 

contention that a warrant was not required to enter Ulitchney‟s home. We are also not 

persuaded by Ulitchney‟s arguments that the District Court‟s post-trial decision to set 

aside the stipulation improperly prejudiced her and that Ruzicki had waived any 

argument inconsistent with the joint stipulation. Ruzicki repeatedly pressed his argument 

– before, during, and after trial – that, as a parole officer, he may make a warrantless 

entry into a residence where he reasonably believes the parolee resides and is present. 

Ulitchney, having already had the opportunity to fully contest this point, was not unfairly 

prejudiced when the District Court set aside the stipulation and resolved the case on the 

basis of Ruzicki‟s position.

C. Whether the District Court properly determined that the limited seizure 

 of Ulitchney was objectively reasonable

We exercise plenary review of the District Court‟s grant of summary judgment, 

and apply the same standard as a district court would. Jackson v. Danberg, 594 F.3d 210, 

215 (3d Cir. 2010). “To state a claim for excessive force as an unreasonable seizure 

under the Fourth Amendment, a plaintiff must show that a seizure occurred and that it 
10

was unreasonable.”7 Curley v. Klem, 499 F.3d 199, 203 n.4 (3d Cir. 2007) (internal 

quotation omitted). “A seizure occurs „[w]henever an officer restrains the freedom of a 

person to walk away.‟” Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002) (quoting

Tennessee v. Garner, 471 U.S. 1, 7 (1985)). And, “[t]he test of reasonableness under the 

Fourth Amendment is whether under the totality of the circumstances, „the officers‟ 

actions are objectively reasonable in light of the facts and circumstances confronting 

them, without regard to their underlying intent or motivations.‟” Kopec v. Tate, 361 F.3d 

772, 776 (3d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

Ruzicki‟s temporary seizure of Ulitchney was reasonable under the circumstances 

as a matter of law. Thus, the District Court properly granted summary judgment on this 

claim. When considered in the light most favorable to Ulitchney, the evidence 

demonstrates that Ruzicki tapped his finger on Ulitchney‟s forehead, pointed a gun at her 

forehead briefly, forced his way into the residence by pushing open the door Ulitchney 

was attempting to push shut, and restricted her movement as Robinson was arrested and 

removed. In light of the volatile nature of arresting an absconding parolee, who had been 

convicted for gun and drug offenses, and of the warnings of a “high-risk situation” as a 

result of a tie to drug-dealers, Ruzicki acted reasonably in entering the residence and 

momentarily seizing Ulitchney. Ruzicki could reasonably infer from his ten-minute wait 

on the porch that Robinson might have been warned of his presence, justifying a 

 

7

 While Ulitchney claims the seizure violated both her Fourth Amendment and 

Fourteenth Amendment substantive due process rights, “[s]uch claims are properly 

analyzed under the Fourth Amendment‟s „objective reasonableness standard,‟ rather than 

under a substantive due process standard.” Graham v. Connor, 490 U.S. 386, 388 

(1989).
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heightened sensitivity to potential threats and a drawing of his weapon. See Mellott v. 

Heemer, 161 F.3d 117, 122-24 (3d Cir. 1998). The limited seizure of Ulitchney, 

therefore, was objectively reasonable.

IV. Conclusion

For the reasons expressed above, we will affirm the judgment of the District

Court.