Case 3:04-cv KRG Document 22 Filed 08/08/2005 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA RONALD C. HELLER, JOHN R. FLINN, No J MATHEW W. LINDSEY, OTTO G. BARTON, II, and CHRIS WILLIAM BENDER, Plaintiffs Civil Action vs. Jury Trial Demanded JERRY C. FULARE a/k/a JEROME FULARE, individually, and in his official capacity as a Logan Township Supervisor, Defendant SECOND AMENDED COMPLAINT FILED ON BEHALF OF PLAINTIFFS FILED ELECTRONICALLY COUNSEL OF RECORD Stephen D. Wicks, Esquire Pa. I.D. No Lakemont Park Boulevard Altoona, PA (814) swickslaw@aol.com

2 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 2 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA RONALD C. HELLER, JOHN R. FLINN, No J MATTHEW W. LINDSEY, OTTO G. BARTON, II, and CHRIS WILLIAM BENDER, Plaintiffs Civil Action vs. Jury Trial Demanded JERRY C. FULARE a/k/a JEROME FULARE, individually, and in his official capacity of Logan Township Supervisor, Defendant SECOND AMENDED COMPLAINT AND NOW, this 8th day of August 2005, come the Plaintiffs, by and through their attorney, Stephen D. Wicks, and file this Second Amended Complaint against the Defendant, JERRY C. FULARE, a/k/a JEROME FULARE, individually and in his official capacity as a Logan Township Supervisor, alleging the following THE PARTIES 1. That the Plaintiff, Ronald C. Heller, is an individual residing at 442 Lotz Avenue, Altoona, PA That the Plaintiff, Ronald C. Heller, is the Chief of the Logan Township Police Department, which is located at th Street, Altoona, PA That the Plaintiff, John R. Flinn, is an individual residing at th Avenue, Altoona, PA

3 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 3 of That the Plaintiff, John R. Flinn, is a Sergeant with the Logan Township Police Department. 5. That the Plaintiff, Matthew W. Lindsey, is an individual residing at 56 Greenwood Road, Altoona, PA That the Plaintiff, Matthew W. Lindsey, is a Patrolman with the Logan Township Police Department. 7. That the Plaintiff, Otto G. Barton, II, is an individual residing at RR 1, Box 1210, Altoona, PA That the Plaintiff, Otto G. Barton, II, is a Patrolman with the Logan Township Police Department. 9. That the Plaintiff, Chris William Bender, is an individual residing at 1817 Bellmeade Drive, Altoona, PA That the Plaintiff, Chris William Bender, is a Patrolman with the Logan Township Police Department. 11. That the Defendant, Jerry C. Fulare a/k/a Jerome Fulare, is an individual residing at 1630 Old Dominion Drive, Altoona, PA That the Defendant, Jerry C. Fulare, is a duly elected Supervisor of Logan Township. BASIS OF CLAIM 13. That these claims arise under 42 U.S.C and the Pennsylvania Constitution and statutes referenced hereinafter.

4 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 4 of 17 JURISDICTION 14. That jurisdiction of this Court over the federal claims is invoked pursuant to 42 U.S.C. 1983, and is founded on Title 28 U.S.C and VENUE 15. That the unlawful acts herein alleged occurred in Blair County, Pennsylvania, which is in the Western District of Pennsylvania. Therefore, venue in the Western District of Pennsylvania is proper pursuant to 28 U.S.C. 1391(b). CLAIM 16. That the Logan Township Supervisors hired Rabun G. Moss as Chief of Police in September of That Chief Moss was formerly certified as a police officer in the state of Colorado, but not certified in the Commonwealth of Pennsylvania. 18. That pursuant to 37 Pa. Code , Chief Moss was required to obtain certification from the Commonwealth of Pennsylvania s Municipal Police Officer s Education and Training Commission ( MPOETC ) as a condition to his employment as a municipal police officer in Pennsylvania. 19. That pursuant to 37 Pa. Code (4), Chief Moss was required to take a certification exam administered by MPOETC. 20. That in November of 2002, Chief Moss improperly obtained the MPOETC certification tests and answers from Chief Louis Valle, a MPOETC instructor, prior to taking his written certification exam. 21. That Chief Moss passed his certification exam with the aid of the aforesaid tests and answers.

5 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 5 of That on January 7, 2003, Patrolmen Lindsey and Barton reported the actions of Chief Moss and Chief Valle to the Logan Township Solicitor, Lawrence Clapper, and the Logan Township Manager, Bonnie Lewis, at the direction of Lieutenant Ronald C. Heller. 23. That on January 9, 2003, Patrolmen Lindsey and Barton submitted written reports of the actions of Chief Moss and Chief Valle regarding the testing process to Beverly Young of MPOETC. 24. That Chief Moss resigned as Chief of the Logan Township Police Department on March 7, That it is believed and averred that Chief Moss resigned as a result of the report to MPOETC of his improper conduct as aforesaid. 26. That on September 9, 2003, and November 3, 2003, hearings were held before Lynne M. Mountz, MPOETC Hearing Examiner, for the purpose of considering the revocation of Chief Valle s instructor certification as a result of his improper provision of testing materials to Chief Moss. 27. That Chief Heller, Sergeant Flinn, Patrolman Lindsey and Patrolman Barton testified at the aforesaid hearings regarding their knowledge of Chief Moss acquisition and use of testing materials from Chief Valle for the purpose of passing his certification exam. 28. That the MPOETC Hearing Examiner found the testimony of Chief Heller, Sergeant Flinn, Patrolman Lindsey and Patrolman Barton to be credible (Exhibit A, pp. 7-8).

6 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 6 of That in the Proposed Order issued on April 30, 2004, the MPOETC Hearing Examiner directed that Chief Valle s instructor certification be revoked for 60 days (Exhibit A, p. 23). 30. That sometime on May 4, 2004, or May 5, 2004, Supervisor Fulare directed the Township Manager, Bonnie Lewis, to remove the Amber Alert computer from the Logan Township Police Department. 31. That the Amber Alert computer was under the control of Patrolman Bender of the Logan Township Police Department. 32. That Supervisor Fulare directed the Township Manager to take the Amber Alert computer to the Pennsylvania State Police to initiate an investigation into whether unlawful material had been placed on said computer. 33. That it is believed and averred that Supervisor Fulare took the aforesaid action as a result of conversations he had with a member of the Logan Township Police Department in violation of Township policy regarding the chain of command within the police department. 34. That at the request of Supervisor Fulare, the Office of the Attorney General of the Commonwealth of Pennsylvania opened an investigation into alleged criminal misconduct by officers of the Logan Township Police Department on or about July 29, That it is believed and averred that Supervisor Fulare requested that said investigation covered an alleged conspiracy by Logan Township police officers against former Chief Moss and Chief Valle in connection with the MPOETC proceedings.

7 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 7 of That the Board of Supervisors voted on September 8, 2004, at a public meeting of the Board of Supervisors of Logan Township, to have the allegations regarding the Amber Alert computer investigated by the Office of the Attorney General of the Commonwealth of Pennsylvania. 37. That on September 8, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that he initiated the investigation with the Attorney General regarding the MPOETC findings related to Chiefs Moss and Valle because he learned of additional information that warranted an investigation. 38. That at the aforesaid public meeting on September 8, 2004, Supervisor Fulare further stated with respect to the investigation by the Attorney General that he wanted to learn of possible misconduct or criminal activity within the Logan Township Police Department. 39. That on September 23, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that Chief Valle suspected a conspiracy by officers of the Logan Township Police Department with respect to their allegations of MPOETC testing improprieties. 40. That on September 23, 2004, Supervisor Fulare further stated at the public meeting of the Board of Supervisors of Logan Township that the aforesaid "conspiracy theory hits the nail on the head." 41. That on October 14, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that he spoke to Senior Deputy Attorney General Janice Martino-Gottshall, who allegedly told him that there are numerous

8 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 8 of 17 serious misconduct issues that the board should address, and that the Board should hire a good attorney and clean the place up. 42. That at the public meeting of October 14, 2004, Supervisor Fulare further declared that he found the aforesaid conspiracy theory against Chief Valle pretty interesting. 43. That on or about November 9, 2004, the Office of the Attorney General of the Commonwealth of Pennsylvania determined that there was insufficient evidence to support Supervisor Fulare s allegations of corruption within the Logan Township Police Department. COUNT I 42 U.S.C FIRST AMENDMENT RONALD C. HELLER, JOHN R. FLINN, MATTHEW W. LINDSAY AND OTTO G. BARTON, II v. JERRY C. FULARE 44. That the averments in Paragraph 1 through 43 are incorporated herein by reference as if fully set forth. 45. That the actions of Supervisor Fulare in initiating criminal investigations of Plaintiffs through the Office of the Attorney General were taken in retaliation for their statements, actions, and testimony described above and in the attached Exhibit A in the MPOETC proceedings. 46. That any allegations against Plaintiffs of criminal activity or serious misconduct made by Supervisor Fulare to the Blair County District Attorney and the Office of the Attorney General in connection with the request to initiate criminal investigations are false. Wherefore, Plaintiffs demand judgment against the Defendant as follows a. That the Court enjoin the Defendant from continuing his unlawful conduct.

9 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 9 of 17 b. That the Plaintiffs be awarded compensatory damages for the injuries they have suffered. c. That the Plaintiffs be awarded punitive damages for the actions of the Defendant. d. That the Defendant be ordered to pay the Plaintiffs reasonable attorney s fees and costs. COUNT II 42 U.S.C FIRST AMENDMENT CHRIS WILLIAM BENDER v. JERRY C. FULARE 47. That the averments in Paragraph 1 through 46 are incorporated herein by reference as if more fully set forth at length. 48. That the actions of Supervisor Fulare in initiating criminal investigations regarding the Amber Alert computer through the Pennsylvania State Police and the Office of the Attorney General were taken in retaliation for the association by Patrolman Bender with his Co-Plaintiffs. 49. That any allegations against Plaintiff of criminal activity or serious misconduct made by Supervisor Fulare to the Blair County District Attorney and the Office of the Attorney General in connection with the request to initiate criminal investigations are false. Wherefore, Plaintiff demands judgment against the Defendant as follows a. That the Court enjoin the Defendant from continuing his unlawful conduct. b. That the Plaintiff be awarded compensatory damages for the injuries he has suffered. c. That the Plaintiff be awarded punitive damages for the actions of the Defendant. d. That the Defendant be ordered to pay the Plaintiff s reasonable attorney s fees and costs.

10 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 10 of 17 COUNT III DEFAMATION RONALD C. HELLER, JOHN R. FLINN, MATTHEW W. LINDSAY, OTTO G. BARTON AND CHRIS WILLIAM BENDER, II v. JERRY C. FULARE 50. That the averments in Paragraph 1 through 49 are incorporated herein by reference as if fully set forth. 51. That the statements made by Supervisor Fulare at the public meetings of September 23, 2004, and October 14, 2004, as set forth in paragraphs above, are false and defamatory per se. 52. That the aforesaid public meetings were attended by the full Board of Supervisors of Logan Township, along with members of the press and citizens of Logan Township. 53. That it was common knowledge within the Logan Township Police Department and the community that Plaintiffs Heller, Flinn, Lindsey, and Barton testified at the MPOETC hearing regarding Chiefs Valle and Moss. 54. That the public was advised by articles published in the Altoona Mirror on September 4, 2004 and September 9, 2004, and by a website publication by WRTA radio on September 10, 2004, that the Attorney General s investigation into alleged criminal misconduct by the Logan Township Police Department included Supervisor Fulare s allegations regarding the circumstances surrounding the departure of Chief Moss and the MPOETC proceedings involving Plaintiffs. 55. That as a result of the knowledge within the Logan Township Police Department and the community of the involvement by Plaintiff s Heller, Flinn, Lindsey, and Barton in the MPOETC proceedings, the publication by Supervisor Fulare of the statements set forth in Paragraphs above could readily be understood to apply to Plaintiffs.

11 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 11 of That it was common knowledge within the Logan Township Police Department and the community that Plaintiff Bender was responsible for the Amber Alert computer. 57. That as a result of the knowledge within the Logan Township Police Department and the community of Plaintiff Bender s responsibility for the Amber Alert computer, the publication by Supervisor Fulare of the defamatory statements set forth in Paragraph 38 and 41 above could readily be understood to apply to Plaintiff Bender. 58. That the public statements by Supervisor Fulare attributing a conspiracy or serious misconduct to Plaintiffs, and claiming the need to clean the place up would be readily understood by the recipients as being harmful to Plaintiffs reputations in the community. 59. That the public statements by Supervisor Fulare attributing a conspiracy or serious misconduct to Plaintiffs, and the need to clean the place up, were made with reckless disregard for the absence of truthfulness for those statements. 60. That as a direct result of the defamatory statements Supervisor Fulare set forth above, the Plaintiffs suffered irreparable injury to their reputations, and considerable emotional anguish and distress. Wherefore, Plaintiffs demand judgment against the Defendant for compensatory and punitive damages, together with interest and costs. COUNT IV 42 U.S.C DUE PROCESS RONALD C. HELLER, JOHN R. FLINN, MATTHEW W. LINDSAY AND OTTO G. BARTON, II v. JERRY C. FULARE 61. That the averments in Paragraph 1 through 60 are incorporated herein by reference as if more fully set forth at length.

12 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 12 of That Plaintiffs Heller, Flinn, Lindsey and Barton testified at the MPOETC hearing on September 9, 2003, and November 3, 2003, about their knowledge of Chief Moss acquisition and use of testing materials from Chief Valle for the purpose of passing his certification exam. 63. That on April 30, 2004, the MPOETC Hearing Examiner issued a proposed Order directing the revocation of Chief Valle s instructor certification based upon the testimony of Plaintiffs. 64. That on July 29, 2004, Supervisor Fulare requested that the Office of the Attorney General of the Commonwealth of Pennsylvania open an investigation into alleged criminal misconduct by officers of the Logan Township Police Department. 65. That on September 8, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that he initiated the criminal investigation with the Attorney General regarding the MPOETC findings related to Chiefs Moss and Valle because he learned of additional information that warranted an investigation. 66. That at the aforesaid public meeting on September 8, 2004, Supervisor Fulare further stated with respect to the investigation by the Attorney General that he wanted to learn of possible misconduct or criminal activity within the Logan Township Police Department. 67. That on September 23, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that Chief Valle suspected a conspiracy by officers of the Logan Township Police Department with respect to their allegations of MPOETC testing improprieties.

13 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 13 of That on September 23, 2004, Supervisor Fulare further stated at the public meeting of the Board of Supervisors of Logan Township that the aforesaid "conspiracy theory hits the nail on the head." 69. That on October 14, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that he spoke to Senior Deputy Attorney General Janice Martino-Gottshall, who allegedly told him that there are numerous serious misconduct issues that the board should address, and that the Board should hire a good attorney and clean the place up. 70. That it is believed and averred that Supervisor Fulare initiated the aforesaid criminal investigation by the Attorney General s Office in retaliation for Plaintiffs testimony as aforesaid at the MPOETC hearings. 71. That the public statements of Supervisor Fulare on September 23, 2004, and October 14, 2004, attributing a conspiracy to Plaintiffs and suggesting the presence of serious misconduct and the need to clean the place up were made in retaliation for Plaintiffs testimony in the MPOETC proceedings. 72. That the public statements by Supervisor Fulare on September 23, 2004, and October 14, 2004, attributing a conspiracy to Plaintiffs and suggesting the presence of serious misconduct and the need to clean the place up caused serious and irreparable harm to the Plaintiffs reputations. 73. That the public statements of Supervisor Fulare on September 23, 2004, and October 14, 2004, attributing a conspiracy to Plaintiffs and suggesting the presence of serious misconduct and the need to clean the place up caused Plaintiffs to experience considerable emotional anguish and distress.

14 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 14 of That the public statements of Supervisor Fulare on September 23, 2004, and October 14, 2004, attributing a conspiracy to Plaintiffs and suggesting the presence of serious misconduct and the need to clean the place up violated Plaintiffs substantive due process rights. 75. That the public statements of Supervisor Fulare as aforesaid constitutes a violation of Plaintiffs rights in their reputations under Article 1 1 of the Pennsylvania Constitution. Wherefore, Plaintiffs demand judgment against the Defendant as follows a. That the Court enjoin the Defendant from continuing his unlawful conduct. b. That the Plaintiffs be awarded compensatory damages for the injuries they have suffered. c. That the Plaintiffs be awarded punitive damages for the actions of the Defendant. d. That the Defendant be ordered to pay the Plaintiffs reasonable attorney s fees and costs. COUNT V 42 U.S.C DUE PROCESS CHRIS WILLIAM BENDER v. JERRY C. FULARE 76. That the averments in Paragraph 1 through 75 are incorporated herein by reference as if more fully set forth at length. 77. That sometime on May 4, 2004, or May 5, 2004, Supervisor Fulare directed the Township Manager, Bonnie Lewis, to remove the Amber Alert computer from the Logan Township Police Department. 78. That the Amber Alert computer was under the control of Patrolman Bender of the Logan Township Police Department.

15 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 15 of That it was common knowledge within the Logan Township Police Department and the community that Plaintiff Bender was responsible for the Amber Alert computer. 80. That Supervisor Fulare directed the Township Manager to take the Amber Alert computer to the Pennsylvania State Police to initiate an investigation into whether unlawful material had been placed on said computer. 81. That the Board of Supervisors voted on September 8, 2004, at a public meeting of the Board of Supervisors of Logan Township, to have the allegations regarding the Amber Alert computer investigated by the Office of the Attorney General of the Commonwealth of Pennsylvania. 82. That on October 14, 2004, Supervisor Fulare stated at a public meeting of the Board of Supervisors of Logan Township that he spoke to Senior Deputy Attorney General Janice Martino-Gottshall about the Attorney General s criminal investigation, and allegedly was told that there are numerous serious misconduct issues that the board should address, and that the Board should hire a good attorney and clean the place up. 83. That the public statements by Supervisor Fulare on October 14, 2004, suggesting the presence of serious misconduct and the need to clean the place up were made in retaliation for Plaintiff Bender s association with his co-plaintiffs. 84. That the public statements by Supervisor Fulare on October 14, 2004, suggesting the presence of serious misconduct and the need to clean the place up caused serious and irreparable harm to Plaintiff Bender s reputation.

16 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 16 of That the public statements by Supervisor Fulare on October 14, 2004, suggesting the presence of serious misconduct and the need to clean the place up caused Plaintiff Bender to experience considerable emotional anguish and distress. 86. That the public statements by Supervisor Fulare on October 14, 2004, suggesting the presence of serious misconduct and the need to clean the place up, which were motivated by retaliation for Plaintiff Bender s association with his Co- Plaintiffs, violated Plaintiff Bender s substantive due process rights. 87. That the public statements of Supervisor Fulare as aforesaid constitute a violation of Plaintiff Bender s rights in his reputation under Article 1 1 of the Pennsylvania Constitution. Wherefore, Plaintiffs demand judgment against the Defendant as follows a. That the Court enjoin the Defendant from continuing his unlawful conduct. b. That the Plaintiffs be awarded compensatory damages for the injuries they have suffered. c. That the Plaintiffs be awarded punitive damages for the actions of the Defendant. d. That the Defendant be ordered to pay the Plaintiffs reasonable attorney s fees and costs. Respectfully submitted s/stephen D. Wicks Stephen D. Wicks, Esquire Attorney for Plaintiffs Pa. I. D. No Lakemont Park Boulevard Altoona, PA (814) swickslaw@aol.com

17 Case 304-cv KRG Document 22 Filed 08/08/2005 Page 17 of 17 CERTIFICATE OF SERVICE This is to certify that on the 8th day of August 2005, the undersigned served the foregoing SECOND AMENDED COMPLAINT upon the following by depositing the same in the United States Mail, First Class Mail, postage prepaid, addressed to Patricia A. Monahan, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 600 Grant Street, Suite 2900 Pittsburgh, PA By s/ Stephen D. Wicks Stephen D. Wicks, Esquire Attorney for Plaintiffs Pa. I.D. No Lakemont Park Boulevard Altoona, PA (814)