Nicholas Malfitano Apr. 20, 2016, 1:08pm


PHILADELPHIA – A federal appeals court determined Thursday that an attorney cited for defiant trespassing at the Valley Forge Military Academy was not denied his civil rights in that incident.

Judge Julio M. Fuentes authored a decision on behalf of himself and colleague Judges Cheryl Ann Krause and Marjorie O. Rendell, stating appellant J. Michael Considine Jr. was not entitled to relief on his civil rights violation claims, from 42 U.S.C. Section 1983 for violations of his First Amendment rights and state and federal law claims for malicious prosecution.

Considine also sought a declaratory judgment that his First Amendment rights were violated, which was also dismissed.

Considine is a lawyer who represented a former student from Valley Forge Military Academy in a lawsuit based upon allegations of hazing that took place at the academy. As part of an investigation of his client’s claims, Considine went to the academy to interview students. Though the school has a policy of requiring visitors to register in their central office before entering the premises, Considine claimed he wasn’t aware of said policy or was asked to leave the grounds.

Considine located a pair of students he intended to interview about the hazing incident, gave one his business card and left the academy. The academy subsequently learned of Considine’s visit and contacted police, claiming he trespassed on private property. Radnor Township Police Officer and defendant Jonathan Jagodinski issued Considine a citation for that very violation, though Considine was never arrested or otherwise taken into police custody.

Considine appeared at a magistrate’s hearing on the citation in state court, where he was found guilty of defiant trespass. However, Considine appealed this decision to the Delaware County Court of Common Pleas, which reversed his conviction.

Based on all of these events, Considine filed a complaint in federal court against Jagodinski for “(1) a violation of his First Amendment rights under 42 U.S.C. § 1983, (2) declaratory judgment under 28 U.S.C. § 2201 for the violation of his First Amendment rights, and (3) malicious prosecution.”

But, the District Court granted Jagodinski’s motion for summary judgment and denied Considine’s cross-motion for summary judgment, for failure to establish his claims. The Court found Considine could not establish a First Amendment violation because he was on private property; could not establish a claim for malicious prosecution under federal law because he had not suffered a deprivation of liberty; and failed to establish a claim for malicious prosecution under Pennsylvania law, because Jagodinski had probable cause to issue the citation.

Considine’s appeal followed.

“Considine first argues that the District Court erred in granting summary judgment to Defendant on his First Amendment claim. He contends that he was entitled to relief on this claim because he had a First Amendment right to enter the academy grounds and interview witnesses in support of his client’s litigation. We disagree,” Fuentes said.

Fuentes concurred with the District Court, noting the academy was private property and thus Considine had no expectation of First Amendment protection. The Third Circuit dismissed Considine’s desire for a declaratory judgment of his rights being violated for this same reason.

Considine also argues that the District Court erred by granting the defendant’s motion for summary judgment, as to Considine’s malicious prosecution claims under both state and federal law.

Fuentes said, “Here, the District Court correctly determined that Considine’s malicious prosecution claim under Pennsylvania law fails because Jagodinski had probable cause to issue the citation for trespass.”

As proof for probable cause, Fuentes pointed to Jagodinski having spoken with the students that claimed to have been interviewed by Considine; Considine knowing the academy was a private institution; an academy representative telling Jagodinski that notice was posted on school grounds explaining the academy’s visitor policy; Jagodinski believed that any visitor who had not registered with security was in violation of the policy; and Jagodinski also believed that the location of the signs at the main entrances of the academy were likely to come to the attention of a visitor.

“Furthermore, because we conclude that probable cause existed to support the issuance of the trespass citation, we discern no error in the District Court’s grant of summary judgment in defendant’s favor as to Considine’s federal malicious prosecution claim,” Fuentes said. “Moreover, we conclude that Considine presents no evidence to support his allegation that he suffered a seizure under the Fourth Amendment to support his federal claim.”

On behalf of the Third Circuit, Fuentes affirmed the judgment of the District Court.

“Because we conclude that defendant was entitled to summary judgment as to all of Considine’s claims, we need not address defendant’s additional, alternative argument that he was entitled to qualified immunity.”

The plaintiff represents himself in part and is also represented by Andrew F. Erba, Christopher Markos and Gerald J. Williams of Williams Cuker & Berezofsky, in Philadelphia.

The defendant is represented by Robert P. DiDomenicis of Holsten & Associates in Media.

U.S. Court of Appeals for the Third Circuit case 15-2184

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-07263

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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