PENNSYLVANIA RECORD

SCRANTON – The Pennsylvania State Police is seeking to dismiss a lawsuit brought by a Scranton cannabidiol (CBD) shop owner, who alleged he was targeted and unlawfully prosecuted for receiving shipments of that product, when authorities believed he had been receiving shipments of marijuana instead.

Joseph Molitor first filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 23 versus the City of Scranton, the Pennsylvania State Police and its laboratory technician John Doe of Harrisburg, Scranton Police Officer Jason Gula and U.S. Postal Inspection Service Inspectors David Heinke and Lauren Fetch.

Molitor began his complaint by stating that while it’s generally illegal under federal law to possess marijuana, it is legal to possess CBD and hemp. The only difference between the substances is the level of THC, the psychoactive compound in the substance.

“In early August 2018, defendant Fetch identified plaintiff as having mailed several packages from the United States Post Office in the Steamtown Mall, which postal employees believed were emitting a suspicious odor,” the suit stated.

“On Aug. 7, 2018, defendants Fetch and Heinke seized the packages and prevented them from being mailed. On Aug. 24, 2018, Fetch obtained a search warrant for the packages. On Aug. 28, 2018, Heinke executed the search warrant on the packages.”

During the search, Heinke found a total of 11.3 grams of a green, leafy substance. Heinke purports that he believed the substance to be marijuana; however, this belief was unreasonable, fabricated and/or inauthentic.

Along with the substance, Heinke found an analysis certificate from Botancor Services, a licensed CBD and Hemp testing center, indicating that the materials contained in the packages were CBD and/or Hemp, not marijuana, based on the level of THC. Additionally, a business card for the plaintiff’s lawful business was found, the CBD Shop of Northeast Pennsylvania.

Fetch and Heinke referred the matter to Gula for prosecution and sent the green, leafy substance to a laboratory owned and operated by the Pennsylvania State Police for testing. Doe tested the substance, authored a report on it and sent it to Fetch, Heinke and Gula, who received it on Oct. 5, 2018.

Despite allegedly knowing the report was false, the defendants waited eight months, then arrested and filed criminal charges against Molitor for felony possession of marijuana.

“Plaintiff was held in jail, unable to make bail on the charge, for approximately two months. Plaintiff lost his job and his family was rendered homeless as a result of the arrest and incarceration. Ultimately, on Feb. 13, 2020, the charges against plaintiff were nolle prossed by the Lackawanna County District Attorney’s Office,” the suit said.

“The arrest was also made without probable cause because defendants knew that plaintiff did not have the requisite mens rea for the crime of possession with intent to deliver marijuana, based on the laboratory reports and business cards in the packages. The arrest of plaintiff was made with malice and knowledge of the lack of probable cause.”

UPDATE

Defendants Gula and the City of Scranton filed a motion to dismiss the complaint on Oct. 30 – and co-defendants Force and the Pennsylvania State Police did likewise on Dec. 28, arguing, among other reasons, that the matter was not properly served and failed to state a claim upon which relief could be granted.

“First and foremost, this case cannot proceed against the Commonwealth defendants for the simple fact that service was never effectuated. Courts cannot exercise jurisdiction over a party that has not been properly served,” the dismissal motion stated, in part.

“If a court determines that process has not been proper, the court may ‘either dismiss the plaintiff’s complaint for failure to effect service or to simply quash service of process.”

Additionally, defendant Force argued she had no personal involvement in the allegedly false arrest.

“Plaintiff admits Force was not the arresting officer. Rather, plaintiff was arrested by Jason Gula, a police officer with the City of Scranton Police Department. As a result, she necessary could not have falsely arrested him and had no personal involvement. Underscoring her lack of personal involvement is the fact that Force cannot even speculate on whether probable cause to arrest existed,” the motion said.

“First, she is with an entirely separate law enforcement agency than the arresting officer and there is nothing to support that Force and Officer Gula had any communication. As such, Force has no idea as what other circumstances and facts were in Officer Gula’s mind at the time of arrest, including the circumstances under which the package was seized in the first place. Because she does not arrest plaintiff and did not know whether probable cause existed at the time of his arrest, she cannot be held liable for a Fourth Amendment claim that requires an absence of probable cause”

For counts of false arrest, malicious prosecution, conspiracy to commit false arrest, malicious prosecution and unlawful seizure, unlawful seizure, Monell liability, and supplemental state law claims of false arrest, malicious prosecution, fraud and civil conspiracy, the plaintiff is seeking compensatory damages, punitive damages, nominal damages, damages for emotional trauma, embarrassment and humiliation, attorney’s fees and court costs in excess of the jurisdictional limits.

The plaintiff is represented by Cornelius J. Rotteveel and Curt M. Parkins of Comerford Law, in Scranton.

The defendants are represented by Joseph A. O’Brien of Oliver Price & Rhodes in Clarks Summit and Joseph J. Santarone Jr. of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, plus Allison L. Deibert of the Pennsylvania Attorney General’s Office in Harrisburg.

U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-01266

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com