                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

Barshinger v. Buffington
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2908




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Recommended Citation
"Barshinger v. Buffington" (2005). 2005 Decisions. Paper 1302.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1302


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                                                     NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                           ____________________

                                   NO. 04-2908
                              ____________________

                            MARK W. BARSHINGER and
                           HENRIETTA D. BARSHINGER,

                                                  Appellants

                                          v.


                STEVEN R. BUFFINGTON; FRANCIS N. NEWHAMS;
                DARRAGH’S AUTO BODY and THE CITY OF YORK.

                   _______________________________________

                   On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                                (D.C. No. 03-cv-00506)
                   District Judge: Honorable Christopher C. Conner
                   ______________________________________

                    Submitted Under Third Circuit LAR 34.1(a):
                                 April 18, 2005
              Before: ROTH, FUENTES and BECKER, Circuit Judges.

                               (Filed: April 28, 2005)

                            ________________________

                                    OPINION
                            ________________________

BECKER, Circuit Judge.

      Plaintiffs Mark W. Barshinger (“Barshinger”) and Henrietta D. Barshinger appeal
from an order of the District Court granting summary judgment to defendants Steven R.

Buffington, Francis N. Newhams, Darragh’s Auto Body and the City of York. It would

be difficult to improve upon the comprehensive discussion of the facts and the merits

contained in the District Court’s opinion, and, our scope of review being de novo, we

affirm essentially for the reasons set forth therein.

       As the District Court explained, with respect to the unlawful search and seizure

claim, the undisputed facts of record establish that appellants’ building had serious

structural problems; the roof was partially collapsed; the rear wall of the home was

completely gone; the walls were deteriorating; and Barshinger exacerbated the situation

by placing numerous vehicles on the first floor and basement of the property. As we read

the record, there were exigent circumstances that justified the warrantless entry into the

property on October 4, 2001.

       At all events, the District Court properly concluded that appellees Newhams and

Buffington were immune from liability on the unlawful search and seizure claim because

the law was not clearly established at the time that they acted. With respect to the

malicious prosecution claim, it is undisputed in this case that Mark Barshinger was found

guilty on several of the October 2001 citations issued against him, and hence he cannot

establish an essential element of a malicious prosecution claim. With respect to the May

2002 citations, there was no lack of probable cause to support the charges, as the property

remained hazardous.



                                               2
       Finally, Mark Barshinger’s First Amendment retaliation claims are patently

without merit. The record establishes that defendant Buffington acted within his

municipal authority to issue the citations for the violations of the fire code; the record is

devoid of any evidence of improper motive; and the record does not support the

contention that Buffington retaliated against Mark Barshinger or that the asserted

violations were mere “pretext” for his decision.

       The judgment of the District Court will be affirmed.




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