Salerno v. Cunningham

GARY SALERNO Plaintiff v. CHAD CUNNINGHAM, et al., Defendants

3:CV-11-450

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: November 13, 2013

(JUDGE MARIANI)

MEMORANDUM OPINION

I. Introduction

Plaintiff, Gary Salerno, brought suit against Defendants Cunningham and Bogarowski, Pennsylvania State Troopers, for malicious prosecution stemming from his arrest for driving under the influence on October 26, 2008. Before the Court is Defendants' Motion for Summary Judgment. (Doc. 18). For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion.

II. Undisputed Statement of Facts

Out of Defendants' 78 paragraphs contained in their Statement of Undisputed Facts (Doc. 20), Plaintiff contests only eight of them: paragraphs 20, 26, 31, 33, 35, 36, 37, 38. As such, the remaining 70 statements of fact are undisputed and are set forth as follows:

Plaintiff, Gary Salerno ("Salerno") is an adult individual living at 122 Father John Drive, Lake Ariel, PA 18436. (Pl's. SOF, Doc. 28, at ¶ 1). Defendant, Chad L. Cunningham("Cunningham") is a Trooper First Class with the Pennsylvania State Police at the Honesdale City Police Barracks. (Id. at ¶ 2). Defendant John E. Bogarowski ("Bogarowski") is also a Trooper with the Pennsylvania State Police at the Honesdale Barracks. (Id. at ¶ 3).

On October 25th, 2008, Salerno and his wife had gone to BennOco's Beef and Brew at roughly 9:00 or 9:30 p.m. for pizza and drinks. (Id. at ¶ 4). Salerno and his wife left the bar after 1:00 a.m. on October 26, 2008. (Id. at ¶ 5). Salerno turned out of the parking lot at BennOco's Beef and Brew and he noticed a police car behind him. (Id. at ¶ 6). Salerno was driving a 2004 Dodge Dakota pickup truck with an open bed. (Id. at ¶ 7).

On October 25-26, 2008, Troopers Bogarowski and Cunningham were working the 11:00 p.m. to 7:00 a.m. shift. (Id. at ¶ 8). As of October 26, 2008, the State Police was just starting to implement mobile video recorders ("MVR") in all of its vehicles. (Id. at ¶ 9). The vehicle that Troopers Cunningham and Bogarowski were driving had an MVR installed as of October 26,2008. (Id. at ¶10).

Salerno came to the intersection at the Easton Turnpike Standard Route ("SR") 191 and stopped at a red light and waited for the light to signal he could make a left turn. (Id. at ¶ 11). Trooper Cunningham was driving the police car behind the Salernos' vehicle on State Route 590. (Id. at ¶ 12). Salerno waited for the light to cycle to green, but it remained red, so he drove through it and made a left turn onto SR 191. (Id. at ¶ 13). Salerno pulled up to the stop light at approximately 1:30:50. The other traffic lights at the intersection wentthrough three light cycles while Salerno's light remained a steady red. Salerno turned left against the red light at approximately 1:34:10. (Id. at ¶ 14). Salerno does not recall whether there was a white line on the road indicating where his vehicle should stop for the light. (Id. at ¶ 15).

After Salerno drove through the light on SR191, the State Police car's lights were turned on, and Salerno was pulled over. (Id. at ¶ 16). Trooper Cunningham got out of the police car and approached Salerno on the drivers' side of the vehicle. (Id. at ¶ 17). Trooper Cunningham told Salerno that the light did not change because Salerno's vehicle was too far forward to trigger the light. (Id. at ¶ 18).¹ Cunningham asked for Salerno's license, registration, insurance information and started a conversation with Salerno. (Id. at ¶ 19).

Trooper Bogarowski approached the passenger side of Salerno's vehicle and could smell alcohol coming from the vehicle while Cunningham spoke to Salerno and while the passenger side window was still up. (Id. at ¶ 21). Bogarowski could smell alcohol coming from Salerno later, when he was closer to him. (Id. at ¶ 22). Cunningham asked Salerno if he had anything to drink. Salerno said he had, and Cunningham asked him to proceed to the back of the car for the Preliminary Breath Test ("PBT"). (Id. at ¶ 23). Salerno testified that, although he does not drink, he had three beers. (Id. at ¶ 24). Salerno exited his vehicle and walked to the back of his truck which was pulled to the side of the two-lane highwaywith a slight downgrade. There was a street light approximately 50 feet away and the primary lighting around Salerno was from the police vehicle. (Id. at ¶ 25).

Cunningham gave Salerno the PBT and then asked Salerno to perform several field sobriety tests. (Id. at ¶ 27). Salerno was questioned as to which direction he would like to face while performing the tests. (Id. at ¶ 28). Troopers are trained at the State Police Academy to explain the test, to demonstrate the test, and to have the individual perform the test. Cunningham first explained the tests and demonstrated how Salerno was to perform them. (Id. at ¶ 29). The field sobriety tests are a gauge used by Troopers to determine if someone is impaired or whether they are able to coordinate and operate a vehicle safely. (Id. at ¶ 30).

One test given to Salerno was the walk-and-turn. Salerno was supposed to walk in a straight line, touching heel to toe and count each step aloud with his arms to his side. (Id. at ¶ 32). During the walk-and-turn test, a subject could receive a decision point for missing a heel to toe, doing the turn improperly, raising his hands, starting too soon, or counting too many steps. (Id. at ¶ 34).

After the tests, Cunningham informed Salerno that he was being placed under arrest for suspicion of DUI and was going to be taken to the hospital to have the opportunity to have his blood drawn. (Id. at ¶ 39). Salerno informed the Troopers several times that he knew Judge Conway. (Id. at ¶ 40). Salerno rode to Wayne Memorial Hospital with theTroopers and his wife followed in the truck. (Id. at ¶ 41). At 2:13 a.m. on October 26, 2008, Trooper Cunningham read Salerno his O'Connell warning. (Id. at ¶ 42). Trooper Cunningham read Plaintiff his Implied Consent warning at 2:14 a.m. on October 26, 2008. (Id. at ¶ 43). Salerno recalls Trooper Cunningham telling him that if he refused to give blood, he could go to jail for five years as stated within the second paragraph of the Implied Consent warning. (Id. at ¶ 44). Salerno refused to submit to blood testing, and the phlebotomist, Amy Pace, recorded the refusal at 2:20 a.m. (Id. at ¶ 45).

At 2:29 a.m. Salerno was given his Miranda warning and signed acknowledging that it had been given. (Id. at ¶ 46). Cunningham indicated to Salerno that he was marking the matter as a refusal and Salerno was then told he could go home. (Id. at ¶ 47). Out in the hospital hallway, Salerno spoke with his wife and then wanted to go back and submit to the blood test, but was told it was too late. (Id. at ¶ 48). Plaintiffs charges, filed by Trooper Cunningham, for the October 26, 2008 incident came later in the mail. (Id. at ¶ 49). Trooper Bogarowski did not file charges against Salerno. (Id. at ¶ 50). Plaintiffs case went to a bench trial before Judge Hamill in Wayne County in April 2009. (Id. at ¶ 51).

Pursuant to the Rules of Criminal Procedure, because Salerno's case was deemed a refusal, the original police report must be to the District Attorney's Office within five days. (Id. at ¶ 52). Within five days of October 26, 2008, Cunningham sent the original report to the District Attorney's Office with all the paperwork that he had. He did not have the MVRvideo at that point, so it was not sent to the District Attorney with the original report. (Id. at ¶ 53). The request for a copy of the video was submitted to his supervisor within a day of Cunningham's creating the charges against Salerno. (Id. at if 54). The protocol for copying the MVR video was new in October 2008 and this was the first time Cunningham had requested a copy of a video. (Id. at ¶ 55). The copy of the video would normally be given back to the Trooper in an envelope. (Id. at ¶ 56). The video of Salerno's October 26, 2008 stop was copied and returned to Cunningham on or about November 12, 2008. Cunningham signed an envelope stating he had acknowledged it and returned it to his supervisor to be placed in a DVD file at the barracks. (Id. at ¶ 57). No supplemental report or video was forwarded by the State Police to the District Attorney's Office. (Id. at ¶ 58).

Trooper Cunningham reviewed the original file that he sent to the District Attorney in preparation for the trial. The original file did not include anything about the DVD or video. (Id. at ¶ 59). Prior to Salerno's trial, Trooper Bogarowski did not review the case at all with Trooper Cunningham, nor did he provide any evidence to the District Attorney's Office. (Id. at ¶ 60). As of the date of Salerno's trial, Trooper Bogarowski did not know that a video of Salerno's traffic stop existed. (Id. at ¶ 61). When being questioned by Salerno's defense attorney, Cunningham began to think about the video. He recalled having a video made, but could not remember what case it was for. (Id. at ¶ 62). During a recess in the trial, Cunningham and Bogarowski went to the barracks to retrieve the video. (Id. at ¶ 63). Thecopy of the video was in the file where the Corporal had put it, (Id. at ¶ 64). During the trial recess, Bogarowski viewed the video of the traffic stop for the first time. (Id. at ¶ 65).

Bogarowski and Cunningham gave the video to the District Attorney and it was reviewed by Cunningham, the District Attorney, the defense attorney and the judge. (Id. at ¶ 66). Assistant District Attorney Rick Muschlitz was the prosecuting attorney assigned to the DUI arrest of Salerno. (Id. at ¶ 67). At the time that Trooper Cunningham discovered the DVD and gave it to Muschlitz, the Commonwealth had already rested its case. (Id. at ¶ 68). Although Muschlitz believed that the Commonwealth would no longer be able to use the MVR as part of the prosecution against Salerno, he felt it necessary to bring the matter to the court's attention. (Id. at ¶ 69)...