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False arrest suit Two men who had been charged with W-B arson allege cops omitted evidence pointing to someone else

January 14

Judge: Lawsuit against officers continues

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter

WILKES-BARRE – A federal judge has denied a motion to dismiss the remaining claims against two police officers who are being sued for allegedly including false information in an affidavit that charged two men with setting fire to a city building nearly a decade ago.

U.S. District Judge Thomas I. Vanaskie on Monday ruled Jason Fierman and David Jaslar had presented sufficient evidence to question whether Wilkes-Barre Detective Robert Zavada and state police Trooper Bernard Kizis acted with malice or reckless disregard for the truth when they omitted certain evidence from the affidavit.

Vanaskie dismissed all claims against former Luzerne County District Attorney David Lupas, however, ruling there was insufficient evidence to support allegations Lupas, now a county judge, had conspired with the officers to present false information.

The ruling is the latest development in a lawsuit Jaslar and Fierman filed in 2005 that alleged they were falsely arrested in connection with the June 8, 1999, arson fire that destroyed a building at 458-460 N. Main St. that was owned by Virgil Argenta.

Police filed charges against Jaslar and Fierman in May 2004, one month before the statute of limitations expired. Police alleged the men, who were in the process of opening a deli, set the fire to get out of their lease after they encountered financial problems. Charges against both men were dismissed for lack of evidence.

In their suit, Jaslar and Fierman claimed Zavada and Kizis, who served as a fire marshal at the time, included information in the arrest affidavit that they knew was false. They also alleged the officers omitted other evidence that raised suspicions regarding whether Argenta may have been involved in the arson.

Argenta, who pushed for the charges against Jaslar and Fierman, has repeatedly and vehemently denied involvement in the fire. Lupas previously publicly cleared him as a suspect.

A federal magistrate judge who reviewed the Jaslar and Fierman lawsuit last year recommended all counts against the officers be dismissed. But Vanaskie rejected that recommendation.

In his ruling, Vanaskie said he believes police did have sufficient evidence to charge Jaslar and Fierman. But he agreed with Jaslar and Fierman that police had additional information that, had it been included, might have altered that determination.

Among the key evidence, Vanaskie said, was information that pointed to Argenta as a suspect.

Vanaskie noted police knew that Argenta’s brother, Dean, was under investigation for allegedly stealing merchandise from a home improvement store, and that he had told authorities he had stored some of that merchandise in the building that burned. Dean Argenta was never charged with the alleged thefts.

The judge said police were also aware that Argenta had nearly $600,000 of insurance on the building, and that he had sought additional coverage in the days before the fire.

Other evidence showed Argenta called a man working on the building on the night of the fire to inquire about the installation of carpeting the next day. At the time the call was placed, Argenta knew the building had been destroyed, Vanaskie said.

“This fact would serve to undermine the contention that the plaintiffs were responsible for the fire by suggesting an attempt by another person to fabricate an alibi defense,” Vanaskie said.

All that information, taken in total, would lead a reasonable jury to question whether the officers actually had probable cause to make the arrest, Vanaskie said.

“Although there may be no duty to include every piece of evidence and all exculpatory information in a probable cause affidavit, the determination of whether the officers acted with knowledge of the absence of probable cause necessarily must encompass all alleged misstatements and omissions that the plaintiffs have shown were known by the investigators,” Vanaskie said.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.