                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2007

Sands v. McCormick
Precedential or Non-Precedential: Precedential

Docket No. 06-3281




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                                                             PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                No.06-3281


                            CYNTHIA SANDS,
                                               Appellant

                                    vs.

        ROBERT McCORMICK, Sergeant, Berwick Police Department;
     GARY E. NORTON, District Attorney of Columbia County, Pennsylvania

                               ____________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (D.C. Civ. No. 06-cv-00158 )
              District Judge: Honorable James F. McClure, Jr.
                                ____________

                             Argued July 10, 2007
             Before: SLOVITER, WEIS and ROTH, Circuit Judges.
                      Filed: September 18, 2007

                               ____________


DAVID B. DOWLING, ESQUIRE (ARGUED)
James J. Jarecki, Esquire
RHOADS & SINON, LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108
Attorneys for Appellant Cynthia Sands



                                     1
CHESTER C. CORSE, JR., ATTORNEY (ARGUED)
Ten Westwood Road
P.O. Box 1190
Pottsville, PA 17901
Attorney for Appellee Gary E. Norton


DAVID J. MacMAIN, ESQUIRE
TIMOTHY J. KEPNER, ESQUIRE
MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP
123 South Board Street
Philadelphia, PA 191099
Attorneys for Appellee Robert McCormick

                                     ______________

                                        OPINION


WEIS, Circuit Judge.

              In this appeal we conclude that a district attorney’s use of the extradition

process rather than accepting an out-of-state accused’s offer to return for a preliminary

hearing when scheduled did not establish a constitutional violation. We also decide that a

police officer’s affidavit of probable cause was not deficient because the statute of

limitations had expired before a criminal complaint was filed. Moreover, we conclude

that portions of a transcript of a preliminary hearing may be considered in connection

with the defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). We are in agreement with the District Court that judgment should be entered in

favor of the police officer and district attorney in claims brought under 42 U.S.C. § 1983

and state tort law.


                                              2
              In December of 2003, a jury awarded substantial damages to Carolyn Sands

following a trial that concerned a contractual dispute over the 1997 sale of a business to

Sherry Wagner and others. One of the issues in that case was whether Sands had

improperly withdrawn funds from a company bank account after the sale. In March of

2004, a new trial was granted. The trial court wrote that “Sands illegally withdrew at

least $10,000 before the closing from the bank account of the corporation, and after the

closing illegally appropriated the entire bank account for her own use.”

              Following the grant of a new trial, Wagner contacted defendant Sergeant

Robert McCormick of the Berwick Police Department in Columbia County,

Pennsylvania. She demanded that he file criminal charges against Sands for forgery and

theft. On April 26, 2004, McCormick filed a criminal complaint against Sands before the

state district magistrate1 charging her with 14 counts of forgery and 16 counts of theft by

deception. He included in the complaint an affidavit of probable cause that described

specific information he received from Wagner, including some bank records that he had

examined, and also directly quoted the trial court’s opinion that granted the new trial.



              On May 5, 2004, the magistrate issued a warrant for Sands’ arrest listing an


              1
                 These members of the Pennsylvania minor judiciary were called “district
justices” prior to January 31, 2005, but are now designated as “magisterial district
judges.” See Act 2004-07, Nov. 30, 2004, P.L. 1618 (effective Jan. 31, 2005). To avoid
confusion here we will refer to these individuals as “magistrates.” We will refer to the
court that decided the contract dispute as the “trial court.” We will designate the court
which heard the case before us as “the District Court.”

                                             3
address of 5499 Freeport Lane, Naples, Florida. On June 29, 2004, the warrant was

reissued with a notation “declared a fugitive.” On July 9, 2004, Sands was arrested at her

home in Florida and taken to the county jail where she was detained until released on bail

on July 10, 2004.

              Sands alleges that upon her release she telephoned defendant Gary E.

Norton, District Attorney of Columbia County, and told him that once a hearing date was

set she would voluntarily return to Pennsylvania when requested. It appears that on

August 3, 2004, in a letter to the magistrate, Attorney Kim Hill advised that he

represented Sands and asked that he be notified of the date of the preliminary hearing.

              On October 18, 2004, District Attorney Norton signed a petition for a

Governor’s Warrant requesting Sands’ extradition that listed an address at 1855 Ivory

Cane Point, Naples, Florida. The application stated that Sands was a fugitive from

Pennsylvania and that any delay in her prosecution occurred because the “[p]ersons

whereabout [sic] was unknown.”

              On November 10, 2004, she was again arrested at her Florida home and

remained in a county jail there until November 24 when she was transported to

Pennsylvania in handcuffs and shackles. She was released on bail in Pennsylvania on her

arrival there. Sands alleges that District Attorney Norton knew that she had retained

attorneys in Pennsylvania and Florida before he applied for the Governor’s Warrant and

that defendants did not inform her of the date of her hearing before the second arrest.

              A preliminary hearing was held before the magistrate on December 6, 2004.

                                             4
After hearing testimony from Wagner, the magistrate ordered Sands to answer the charges

in the Court of Common Pleas of Columbia County. Sands’ counsel then asked the court

to quash the information because the relevant statutes of limitations had expired. On

March 14, 2005, the Court of Common Pleas granted the motion and dismissed the

charges.

              Sands then filed this civil rights action in the United States District Court

for the Middle District of Pennsylvania claiming damages under 42 U.S.C. § 1983 for

false arrest and false imprisonment against Sergeant McCormick and for false arrest

against District Attorney Norton. She also asserted state law claims of malicious

prosecution, abuse of civil process,2 and intentional infliction of emotional distress

against both defendants.

              Sands based the claims against Sergeant McCormick primarily on the

allegations that he filed the Complaint and Affidavit of Probable Cause knowing that the

statute of limitations had expired on the charges and that they were based on insufficient

facts. She also alleged that Sergeant McCormick requested the Governor’s Warrant

knowing that Sands was not a fugitive and refused to take steps to have it rescinded.

              The District Court dismissed the § 1983 claims for false arrest and false

imprisonment and the state law claim for malicious prosecution against Sergeant

McCormick because he had probable cause to file the criminal complaint. The District


              2
                Although labeled civil process, the District Court construed the claim as
one of abuse of criminal process.

                                              5
Court found that Sergeant McCormick properly relied on the information he received

from Wagner, including the bank records and the comments in the order granting a new

trial in the contractual dispute. The District Court observed that the running of the

limitations period was not relevant to the existence of probable cause and did not become

an issue until raised as a defense in Sands’ motion to dismiss the charges in the Court of

Common Pleas.

              The District Court also dismissed the state law claims against Sergeant

McCormick for malicious prosecution, abuse of process, and intentional infliction of

emotional distress on the ground that he was entitled to immunity under the Pennsylvania

Political Subdivision Tort Claims Act (“Pa. Tort Claims Act”), 42 Pa. Cons. Stat. § 8541

et seq., since he acted in his official capacity and in good faith.

                Sands’ assertions against the district attorney were similar to those against

Sergeant McCormick, but were not identical. Sands based her claims against the district

attorney primarily on allegations that in his administrative capacity he authorized Sands’

arrest, then signed the criminal information knowing that the statute of limitations had

expired and that the charges lacked probable cause. She also alleged that he requested

and refused to rescind the Governor’s Warrant knowing that Sands was not a fugitive.

              The District Court rejected the § 1983 claim for false arrest against the

district attorney because he was entitled to absolute prosecutorial immunity for his

actions. The District Court declined to accept Sands’ characterization of Norton’s

activities as administrative, concluding that they were intimately connected with the

                                               6
judicial phase of the prosecution.

              As to the state tort claims, the District Court held that because Norton acted

in his official capacity as a prosecutor and acted in good faith based on probable cause, he

was immune under the Pa. Tort Claims Act. Moreover, the Court held that the malicious

prosecution claim lacked merit because the district attorney did not initiate the process,

the abuse of process claim failed because Sands did not properly allege a perversion of

process, and the intentional infliction of emotional distress claim was invalid because the

district attorney’s conduct was not extreme and outrageous. Therefore, the state law

claims against the district attorney were dismissed.

              On appeal, Sands raises three principal arguments:

              1. Sergeant McCormick did not have probable cause to arrest Sands

because he was aware that the statute of limitations had expired.

              2. The district attorney’s failure to timely schedule a hearing and his false

statements in the application for the Governor’s Warrant despite Sands’ offer to return to

Pennsylvania once he advised her of the date of the hearing were administrative actions

not protected by absolute immunity.

              3. The District Court improperly relied on documents outside the complaint

and its exhibits in ruling on the Federal Rule of Civil Procedure 12(b)(6) motion to

dismiss.

                                             A.

              This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review de

                                              7
novo a district court's grant of a motion to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6). Vallies v. Sky Bank, 432 F.3d 493, 494 (3d

Cir. 2006). “In evaluating the propriety of the dismissal, we accept all factual allegations

as true, construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to

relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

Nonetheless, “a court need not credit a plaintiff’s ‘bald assertions’ or ‘legal conclusions’

when deciding a motion to dismiss.” Morse v. Lower Merion School Dist., 132 F.3d 902,

906 (3d Cir. 1997) (citing In re: Burlington Coat Factory Securities Litigation, 114 F.3d

1410, 1429-30 (3d Cir. 1997)).

                                              B.

              We first address Sands’ contention that the District Court erred in referring

to the following two documents attached to the defendants’ motions to dismiss: 1) the

March 29, 2004 trial court order granting a new trial in the contract action and 2) the

transcript of the preliminary hearing in December of 2004. She asserts that by doing so

the District Court converted the defendants’ motions into requests for summary judgment

without giving her notice or an opportunity to respond.3


              3
               Federal Rule of Civil Procedure 12(b) provides that if, on a 12(b)(6)
motion to dismiss,

       “matters outside the pleading are presented to and not excluded by the
       court, the motion shall be treated as one for summary judgment and
       disposed of as provided in Rule 56, and all parties shall be given reasonable

                                              8
              Generally, in ruling on a motion to dismiss, a district court relies on the

complaint, attached exhibits, and matters of public record. Pension Benefit Guar. Corp.

v. White Consol. Industries, Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

              In Southern Cross Overseas Agency v. Wah Kwong Shipping Group Ltd.,

181 F.3d 410 (3d Cir. 1999), we noted that judicial proceedings constitute public records

and that courts may take judicial notice of another court’s opinions. Id. at 426; see also

Burlington Coat Factory, 114 F.3d at 1426 (courts can consider documents “integral to or

explicitly relied upon in the complaint” (quoting Shaw v. Digital Equip. Corp., 82 F.3d

1194, 1220 (1st Cir. 1996))) (emphasis omitted). We explained that a court may take

judicial notice of another court's opinion to use it as proof that evidence existed to put a

party on notice of the facts underlying a claim. Southern Cross, 181 F.3d at 428.

              We have no difficulty concluding that the District Court properly

considered the challenged documents when it found that there was probable cause to file

the charges because Sergeant McCormick knew of the trial court order. In reaching this

conclusion, it was not necessary to determine the truth of the trial courts’s comments that

Sands’ actions were illegal. It was enough that Sergeant McCormick took the opinion

into account to some extent in finding probable cause.

              Likewise, the transcript of the preliminary hearing in December 2004 was a




       opportunity to present all material made pertinent to such a motion by Rule
       56.”


                                              9
public document and had a bearing on the controversy. Wagner’s detailed testimony of

Sands’ actions with respect to the bank account explained the facts underlying

McCormick’s affidavit of probable cause. The district judge cited the hearing to show

that Sands was required to answer to the charges in the Court of Common Pleas.

Moreover, Sands should not have been surprised by the inclusion of the preliminary

hearing transcript. In his motion to dismiss in the District Court, Sergeant McCormick

referred to the transcript and argued that the document should be considered according to

Pension Benefit, 998 F.2d at 1196. Sands merely responded by briefly noting her

objection to the additional evidence included by Sergeant McCormick and did not

elaborate on her position. We do not find merit in Sands’ claims that the District Court

erred in considering the transcript of the hearing and the opinion in the contractual

dispute.

                                             C.

              The principal claims against Sergeant McCormick are that there was no

probable cause to apply for the arrest warrant and that he wrongfully participated in the

issuance of the Governor’s Warrant. Sands does not focus on the District Court’s

conclusion that Sergeant McCormick had sufficient evidence to believe that she

committed the offenses. Instead, she argues that Sergeant McCormick did not have

probable cause in the sense that he knew that the statute of limitations had expired.

              Sands’ argument is based on the faulty premise that the statute of

limitations is a relevant consideration at the time a police officer files charges. The

                                             10
statute of limitations is an affirmative defense that is to be ruled upon by a court of

competent jurisdiction.

              Sands would place far more responsibility on police officers than is

required by their calling. To begin with, the application of the limitations period is not a

clear cut matter in criminal prosecutions. In some circumstances tolling is applicable. 42

Pa. Cons. Stat. § 5554 provides that the statute of limitations may be extended in certain

circumstances, including “when the accused is continuously absent from the

Commonwealth . . ..” 42 Pa. Const. Stat. § 5554(1). Moreover, late discovery of an

offense may allow for longer limitations periods in crimes involving fraud. See 42 Pa.

Cons. Stat. § 5552(c) (providing that even if the statute of limitations has expired, “a

prosecution may nevertheless be commenced for: (1) Any offense a material element of

which is either fraud or a breach of fiduciary obligation within one year after discovery of

the offense by an aggrieved party. . ..”). The mere passage of time since the commission

of an offense does not warrant an automatic application of the statute of limitations in a

criminal proceeding.

              In Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995), the Court of

Appeals for the Eleventh Circuit held,

              “police officers have no responsibility to determine the
              viability of a statute of limitations defense when executing a
              valid arrest warrant. The existence of a statute of limitations
              bar is a legal question that is appropriately evaluated by the
              district attorney or by a court after a prosecution is begun . . ..
              [W]hether a valid statute of limitations defense exists is not a
              cut and dry matter.”

                                              11
Id. at 1207-08. See also Williams v. City of Albany, 936 F.2d 1256, 1260 (11th Cir.

1991). Although Sands’ claims are based on the presumed knowledge of Sergeant

McCormick at the time he presented the affidavit of probable cause, we think the

rationale of Pickens applies to justify his action.

              Sands relies on Lee v. Miholich, 1987 WL 11905 (E.D. Pa. 1987), where

the court denied summary judgment in favor of a police officer because there “was no

evidence to suggest that a reasonably competent police officer would prosecute with the

awareness that the charges were barred by the statute of limitations.” Id. at *3. We do

not agree with that opinion’s characterization of a police officer’s responsibility. A police

officer has limited training in the law and requiring him to explore the ramifications of the

statute of limitations affirmative defense is too heavy a burden.

              We note that the dates of the offenses were disclosed in the affidavit of

probable cause that was submitted to the magistrate, who may be expected to have more

knowledge of the statute of limitations than a police officer. There is no indication that

the magistrate had any hesitancy about issuing the arrest warrant.

              The Court of Common Pleas’ decision to quash the information on statute

of limitations grounds does not adversely reflect on Sergeant McCormick’s application

for the arrest warrant. At that early point, the status of the limitations defense was

undetermined and open for further consideration.

              In short, we conclude that the District Court properly dismissed the claims

                                              12
under § 1983 against Sergeant McCormick because he had probable cause for his actions.

We agree that the District Court correctly dismissed the state claims against Sergeant

McCormick for malicious prosecution, abuse of process, and intentional infliction of

emotional distress because he was immune from suit under the Pa. Tort Claims Act. See

42 Pa. Cons. Stat. § 8550; see also Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006).

              We will therefore affirm the judgment in favor of Sergeant McCormick.

                                              D.

              On appeal, Sands contends that the district attorney was not entitled to

immunity because he failed to schedule a preliminary hearing and applied for a

Governor’s Warrant for the second arrest. She contends that his actions were

administrative in nature and hence absolute immunity is not applicable.

              We need not reach the question of whether the district attorney’s actions fall

within the scope of qualified immunity, however, because Sands has not alleged facts that

amount to a constitutional violation. In Saucier v. Katz, 533 U.S. 194 (2001), the

Supreme Court decided that before ruling on immunity in § 1983 cases, courts should first

determine whether a constitutional violation has been alleged. Id. at 201. We must

decide preliminarily, therefore, whether the claims that the district attorney caused illegal

arrests and violated Sands’ due process rights are valid. This determination requires a

reference to the post-arrest process and the district attorney’s role.

              In Pennsylvania, a preliminary hearing to address the validity of charges

filed is not scheduled until the defendant appears for an arraignment before a magistrate

                                              13
in the judicial district where the warrant was issued. Pa. R. Crim. P. 540(F). At that

arraignment, the magistrate is required to inform the defendant of the charges, her right to

counsel, her right to bail where appropriate, and her right to a preliminary hearing. Pa. R.

Crim. P. 540(B)-(F).

              At the arraignment, unless a represented defendant waives her right to a

preliminary hearing, the magistrate shall “fix a day and hour for a preliminary hearing

which shall not be less than 3 nor more than 10 days after the preliminary arraignment”

and “give the defendant notice, orally and in writing.” Pa. R. Crim. P. 540(F)(1)-(2). The

time restrictions on the date of the preliminary hearing may be altered at the request of the

parties. Pa. R. Crim. P. 540. (F)(1)(a)-(b). A magistrate in the district that issued the

warrant, therefore, and not a district attorney, is responsible for scheduling and giving

notice of the preliminary hearing.

              District attorneys do not have any involvement in scheduling the

preliminary arraignment. In a case where a defendant is arrested in the judicial district

where the warrant was issued, she must be provided a preliminary arraignment by the

magistrate without unnecessary delay. Pa. R. Crim. P. 516(A).4

              When arrested in another district, she must be taken without unnecessary



              4
                See Commonwealth v. Dreuitt, 321 A.2d 614 (Pa. 1974) (time necessary
to transport defendant from place of arrest is not part of calculation of unnecessary delay
between arrest and arraignment, where defendant was advised of right to counsel and of
charges against him at place of arrest) (O'Brien, J., announcing Opinion of the Court,
joined by Eagen and Pomeroy, J.).

                                             14
delay to a magistrate in the district of her arrest and granted an opportunity to post bail.

Pa. R. Crim. P. 517(A). If the defendant posts bail, the magistrate must release her on the

condition that she appear for the preliminary arraignment before a magistrate in the

district that issued the warrant on a specific date within ten days. Pa. R. Crim. P. 517(B).

If she does not appear at the set time, a magistrate in the district that issued the warrant

must forfeit the bail. Pa. R. Crim. P. 517(E). If she is then arrested outside of that

district, she is not entitled to post bail and must be taken directly before the magistrate in

the district that issued the warrant for her preliminary arraignment. Id.

               In Pennsylvania, the responsibility for arranging the times for the

preliminary arraignment, as well as the preliminary hearing, and giving notice rests not on

district attorneys, but on magistrates. It is the minor judiciary that controls those

proceedings.

               In this case, Sands was initially arrested outside of Pennsylvania and her

arrest and return to Pennsylvania was governed by extradition statutes in Florida and

Pennsylvania. The extradition procedures are virtually identical because both states

adopted the Uniform Criminal Extradition Act. See 42 Pa. Cons. Stat. § 9121 et seq.; Fla.

Stat. § 941.01 et seq. The statutes establish a procedure through which a district attorney

can file an application with the governor of his state, who then requests the governor of

the other state to extradite a defendant who has fled to the other state. See 42 Pa. Cons.

Stat. §§ 9143-9144; Fla. Stat. §§ 941.22-941.23.

               The statutes also provide a separate process by which a defendant who has

                                              15
fled to another state can be arrested there before an actual request for extradition. See 42

Pa. Const. Stat. § 9134; Fla. Stat. § 941.13. Using this process, a judge in Florida can

issue a warrant for the arrest of a person there based on credible information that the

individual has been charged in Pennsylvania with the commission of a crime and “fled”

from justice. Fla. Stat. § 941.13.

              After the arrest, the defendant must be brought before a Florida judge, Fla.

Stat. § 941.15, who may grant bail or jail the individual for such a time “as will enable the

arrest of the accused to be made under a warrant of the Governor on a requisition of the

executive authority of the state having jurisdiction of the offense.” Fla. Stat. § 941.15.

The person may be released on bail “conditioned for the prisoner's appearance before . . .

[the judge] at a time specified in such bond, and for the prisoner's surrender, to be arrested

upon the warrant of the Governor of this state.” Fla. Stat. § 941.16.

              Sands was initially arrested in Florida and released on bail. The district

attorney could force her to return to Pennsylvania only through extradition. To avoid that

process, Sands had to return on her own to Pennsylvania. When she did not return, she

was extradited.

              Sands has not pointed to any law that required Norton to provide her with

an alternative to extradition. Nor was the district attorney bound to accept Sands’ offer to

return voluntarily. Significantly, she does not allege that the district attorney agreed to

notify her of the hearing. Her complaint states that “Sands told Norton that, once a

hearing date was set, she would voluntarily and freely return to Pennsylvania when

                                              16
requested.”

              Sands’ offer to return to Pennsylvania when the hearing was scheduled did

not somehow put on the district attorney the burden of notifying her of the date. Sands’

offer was made to the wrong party. Her attorney asserted at the preliminary hearing that

he had communicated with the magistrate, but for some reason the case apparently “fell

between the cracks” and a hearing that might have taken place in May did not occur until

December. Even if the district attorney could have arranged with defense counsel for a

less intrusive method of returning Sands to Pennsylvania, there is nothing in the record to

show that he knew who represented her. Although she had criminal representation before

the Governor’s Warrant was issued, there is no evidence that either the magistrate or

defense counsel notified the district attorney of the identity of Sands’ lawyer.

              It seems likely that Attorney Kim Hill accurately summed up the reason for

the problem here. After stating that he had sent a letter to the magistrate in August, Mr.

Hill said, “[U]nfortunately, there was some miscommunication and Ms. Sands . . . she

was never informed of a hearing, but she was still picked up on a warrant and I’m still not

sure how that happened.”

              Sands has not stated a constitutional claim against the district attorney for

failure to notify her of a preliminary hearing, a duty that Pennsylvania law assigned to the

magistrate.

              Sands also contends that the district attorney included false information in

the application for the Governor’s Warrant for extradition. Specifically, she points to the

                                             17
statements that she was a fugitive and her whereabouts were unknown.

              Under Pennsylvania law, the application for a Governor’s Warrant may be

made only by a district attorney.5 The application that the district attorney filed is a form

document that includes information required by statute. 42 Pa. Con. Stat. § 9144(a). The

form recites that Sands “is now in 1855 Ivory Cane Point Naples, State of Florida, which

belief is founded on information from Berwick Police Dept & Sherry Wagner.” This is a

different address from that in the original warrant.

              The document also states that Sands was in the County of Columbia “at the

time of the commission of said offense and fled the jurisdiction of the Commonwealth

before arrest could be made . . . and is a fugitive from the justice of this Commonwealth.”

In addition, the form states that any delay that occurred in prosecution or in the

application for extradition “was unavoidable for the following reason(s): Persons

whereabout [sic] were unknown.”

              Sands complains that the last statement was false because the district

attorney knew where she lived. A careful reading of the application, however, reveals

that the statement explained the delay in prosecution, rather than the plaintiff’s current

address. It is obvious from the new address that Sands had changed her residence

between the time of the original warrant and the date when the Governor’s Warrant was



              5
                42 Pa. Con. Stat. § 9144(a) (providing that “the prosecuting attorney shall
present to the Governor his written application for a requisition for the return of the
person charged”).

                                             18
issued.

              Sands also contends that the district attorney falsely described her as a

“fugitive.” Although it is understandable that she may be perturbed by being so

characterized, the terminology in the warrant is legally correct. In Commonwealth ex rel.

Smalley v. Aytch, 371 A.2d 1018 (Pa. Super. 1977), the Superior Court of Pennsylvania

said in reviewing an extradition case,

              “If, having been within a state, [a defendant] is accused of
              having committed while there that which by its laws
              constitutes a crime, and, when he is sought to be subjected to
              criminal proceeding therefor, he has left its jurisdiction and is
              found within another state he is a fugitive from justice.
              It is not important whether the accused leaves the state to
              avoid prosecution or not. His motive does not affect his
              relation to the law.”


Id. at 1021 (quoting Commonwealth v. Hare, 36 Pa. Super. 125, 130-31 (1908)).

              Insofar as the record shows, Sands was in Florida and could only be forced

to return to Pennsylvania through the extradition process. It follows that the references to

the term “fugitive” in this case are not actionable.

              The miscommunication here had unfortunate results. Criminal procedures

are often harsh and mistakes can be made, but that does not make the process

unconstitutional per se. Sands has failed to state a constitutional claim against District

Attorney Norton under § 1983.

              Sands complains that the district attorney should not have pursued the

prosecution because as a lawyer he knew that the statute of limitations had expired. As

                                              19
we explained earlier, the charges were based on probable cause. As with this claim and

the other state tort allegations, the district attorney’s actions were within the protection of

the Pa. Tort Claims Act. The District Court properly ruled in favor of the district attorney

on both the federal and state counts.

              The judgments of the District Court will be affirmed.




                                              20
