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HomeMy WebLinkAbout12-4343 t DARWIN K. BROSIUS, IN THE COURT OF COMMON PLEAt, Plaintiff OF CUMBERLAND COUNT) P? n rn°° VS. ? COUNTY, CIVIL xQ v Defendant y?? -- ZC:) nr; NOTICE You have been sued in court. If you wish to defend against the claims set forth in he following pages, you must take action within 20 days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court yo ur defenses or objections to the claims set forth against you. You are warned that if you fail to d so the case may proceed without you and a judgment may be entered against you by the court witho ut further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE T: OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HE] Lawyer Referral Service 100 South Street, P.O. Box 186 Harrisburg, PA 17108 1-800-692-7375 July 12, 2012 or MidPenn Legal Services 213 N. Front Street Harrisburg, PA 17101 1-800-932-0356 G" JerryA. l hil o*tt s uire 2 N. High Street, P.O. Box 116 I Duncannon, PA 1 j020 717-834-3087 DARWIN BROSIUS, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA VS. NO: CUMBERLAND COUNTY, CIVIL Defendant COMPLAINT COMES NOW the plaintiff and complains of the defendant as follows: 1. Plaintiff is Darwin Brosius, an individual who resides at 1200 Rossmoyne Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant is Cumberland County, a political subdivision of the Commonwealth of Pennsylvania with offices in the Cumberland County Courthouse in Carlisle, PA. 3. On November 7, 2011, plaintiff was involved in an accident in Cumberland County as a result of which he was charged with Driving Under the Influence of Alcohol. 4. He was eventually taken by the arresting office to the Cumberland County Prison for preliminary arraignment. 5. At some point, bail was set at ROR 6. Plaintiff is informed and believes that after his bail was set, he was detained further beca se an official with the Cumberland County prison contacted the Cumberland County Probati n Office's "duty probation officer" to determine whether there were any probation or par le detainers. 7. Plaintiff does not claim that either his initial arrest, his transportation to Cumberland Cou Prison, or the phone call to check for detainers were illegal. This complaint is based on w happened next. 8. Plaintiff did have a 2006 Cumberland County DUI conviction on which he had recei Intermediate Punishment. As of November 2011, he had long since completed his sente and all probation. 9. Nevertheless, someone informed the Cumberland County Prison that there was a detainer on plaintiff. s 1 cad ? ?s? a? ?u Sp?7 ? a?79 y9 10. There was no parole detainer on plaintiff. 11. Based on this misinformation, plaintiff was not released on ROR bail, but was detainee. 12. After plaintiff's counsel went to see plaintiff at the Cumberland County Prison on Nove er 10, 2011, and called the Cumberland County Probation Department to find out why itiad a detainer on plaintiff, plaintiff was forthwith released on ROR bail. 13. Plaintiff believes he was unlawfully detained for about two days in the Cumberland County Prison because of an error of the Cumberland County Probation Office in reading its own records. 14. Plaintiff was subjected to great humiliation, pain, and suffering by reason of his detention as described above. WHEREFORE, plaintiff respectfully demands judgment in plaintiffs favor and against he defendant in the amount in excess of Fifty thousand dollars ($50,000) exclusive of costs and damages for delay, for punitive damages in an amount to be determined by the trier of fact, and for such other relief as the court may deem appropriate. Respectfully submitted; Jerry A. Philpott, E u'r 227/' High P. Box 116 'Ef ncannon, A t 020 717-834-3087 Attorney for Plaintiff Dated: July 10, 2012 2 r - verify that the statements made in the fore personal knowledge, information, understanding, a herein are made subject to the penalties of 18 Pa.C.; authorities. - r DARWIN K. BROSIUS, : IN THE COURT OF COMMON PLEAS Plaintiff : OF PENNSYLVANIA C= V. : CIVIL COMPLAINT -1 ~ -? : FALSE IMPRISONMENT tnr" ?...- C CUMBERLAND COUNTY, ... Defendant : DOCKET NO. -m ? g J? l v/?? w o ° -. o T?n ? ?n PRAECIPE FOR ENTRY OF APPEARANCE = ° s To the Prothonotary: COMES NOW, Jerry A. Philpott, Esquire, and enters his appearance in this matter on behalf of the Plaintiff, Darwin K. Brosius. July 12, 2012 Respectiull submitted: ?Jegt?f Phil ott, Esquire Cou # 227 N. Fligh Street, P.O. Box 116 Duncannon, PA 17020 717-834-3087 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY MIL. ?qt rP? 2 t2 JUL 23 AM $: 37 CUMBERLAND CQU ? v PF-NNSYI_VANI Darwin K. Brosius Case Number vs. 2012-4343 Cumberland County Prison SHERIFF'S RETURN OF SERVICE 07/16/2012 03:50 PM - Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on July 16, 2012 at 1550 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Cumberland County Prison, by making known unto Earl Reitz, Warden for The Cumberland County Prison at The Cumberland County Sheriffs Office, 1 Courthouse Square, Room 3 3, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $28.45 July 17, 2012 SO ANSWERS, ! ? G^ ? R ANDERSON, SHERIFF ;.;cur )Swte She f ! aso"! ., WILLIAM J. FERREN & ASSOCIATES Christine E. Munion, ESQUIRE IDENTIFICATION N0.72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 ATTORNEY FOR DEFENDANT CUMBERLAND COUNTY DARWIN BROSIUS VS. CUMBERLAND COUNTY COURT OF COMMON PLEAS CUMBERLAND COUNTY, P~~, ~~ ern NO. 12-4343 ~~ ~~ ~~ is ~~ -.~ .A ENTRY OF APPEARANCE TO THE PROTHONOTARY: N C r .~- c. Kindly enter my appearance as attorney for Defendant, Cumberland County; in the captioned matter. WILL BY: IATES 6',l=I,~YST1~dE E.~J~NION, ESQUIRE Attorney for Defendant Cumberland C .L -7^, "~~ ~~ "-z3~ ~~ ~ ~; c~-7-~ ~~, -.~ ~~ -~. WILLIAM J. FERREN & ASSOCIATES Christine E. Munion, ESQUIRE IDENTIFICATION NO. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 ATTORNEY FOR DEFENDANT CUMBERLAND COUNTY DARWIN BROSIUS VS. CUMBERLAND COUNTY COURT OF COMMON PLEASS? CUMBERLAND COUNTY, P~ ~ rri Z r- NO. 12-4343 ~ '*.© ~{'~ ~_~ Z DEMAND FOR JURY TRIAL TO THE PROTHONOTARY: Defendant, Cumberland County, by and through their undersigned counsel, hereby a trial by a jury of twelve. WILLIAM J BY: SOCIATES ~_ ~, G ~ +:..~- G'3 'Y7 p-,--; N '~ --~ c~ T, ~~ ~~ ~ '~' Q ry- CJ C'~ST~'7d~~~.~GIUNION, ESQUIRE Attorney for defendant Cumberland C WILLIAM J. FERREN & ASSOCIATES Christine E. Munion, ESQUIRE IDENTIFICATION NO. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 ATTORNEY FOR DEFENDANT CUMBERLAND COUNTY r7 c ~ ~ :v ~rn c DARWIN BROSIUS vs. CUMBERLAND COUNTY cn , ~ COURT OF COMMON PLEA ~ ra ~ CUMBERLAND COUNTY, P~ ~ ~ , :~ ~ ' ~ , y .. , • -.j NO. 12-4343 --~ ..= e== Comes now, Defendant, by and through its undersigned counsel, who hereby objects to Plaintiff's Complaint pursuant to Pennsylvania Rules of Civil Procedure 1028 and in support thereof avers the following: 1. Plaintiff commenced this action in the Court of Common Pleas of Cumberland County by filing a Complaint. See Complaint attached hereto and incorporated herein as «A ~, 2. Plaintiffs Complaint does not plead any specific cause of action against which would entitle Plaintiff to recovery. See Exhibit "A." 3. In fact, Plaintiff does not indicate what type of action he is bringing. See Exhibi «A » 4. Plaintiff appropriately identifies Cumberland County as a political subdivision. Exhibit "A" paragraph 2. 5. Plaintiff asserts that he on November 7, 20111 he was charged with driving influence of alcohol. 6. Plaintiff was taken to Cumberland County Prison where a preliminary arrai was held. See Exhibit "A" paragraph 4. ~a -{ rg~ o° --~ ca ~-n o ~~; ~~ ~'~~ ..-~ ~;w; ~; Y the 6. Bail was set at ROR, i.e. released on recognizance. See Exhibit "A" paragraph 5 r 7. Plaintiff asserts that "someone informed the Cumberland County Prison that was a parole detainer on plaintiff' and that no such detainer existed. See Exhibit "A" paragraphs 9 and 10. 8. Plaintiff was detained as a result of this "error." See Exhibit "A" paragraph 13 9. Plaintiff demands punitive damages against Cumberland County. 9. Pennsylvania Rule of Civil Procedure 1028(a), provides that preliminary obj may be filed by and party to any pleading. 10. Pennsylvania of Civil Procedure 1028(a)(4) allows for the filing of Preliminary Objections due to the legal insufficiency of a pleading. 11. Plaintiff s Complaint lacks any specificity, and specifically fails to present any of action against Defendant which would entitle Plaintiff to recovery. 12. Plaintiff s Complaint fails to comply with Pa. R.C.P. Rule 1028(a) and Pa.R.C.P. 1019. 13. Punitive damages are not recoverable against Cumberland County. WHEREFORE, Defendant, respectfully requests this Honorable Court sustain their Preliminary Objections and enter the attached Court Order. WILLI MATES ,~ BY: ~ISTINE~E.POIUNION, ESQUIRE Attorney for Defendant Cumberland Cou WILLIAM J. FERREN & ASSOCIATES Christine E. Munion, ESQUIRE IDENTIFICATION NO. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 ATTORNEY FOR DEFENDANT CUMBERLAND COUNTY DARWIN BROSIUS vs. CUMBERLAND COUNTY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 12-4343 NDUM OF LAW IN ; Defendant Cumberland County, by and through counsel files this Memorandum of Law support of its Preliminary Objections to Plaintiff s Complaint and in support thereof states as follows: CTANiIARiI Pa.R.C.P. 2028 provides that Preliminary Objections may be filed by any party to any pleading for... the legal insufficiency of a pleading (demurrer). Preliminary objections in the of a demurrer admits as true all material facts set forth in the complaint as well as all inferences reasonably deducible there from. Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super.2002) denied 569 A.2d 722, 806 A.2d 862; Sexton v. PNC Bank, 792 A.2d 602 (Pa.Super.2002). The question presented by a demurrer is whether, on the facts averred, the law says with certainty recovery is possible. Sclabassi v. Nationwide Mut. Fire Ins. Co., 789 A.2d 699 (Pa.Super.2001). ARGUMENT In the case currently before this Honorable Court, Plaintiff fails to identify what type of cause of action he is asserting. Nevertheless, no recovery is possible based on what is asserted no Plaintiff and his Complaint must be dismissed. r PLAINTIFF HAS NOT PLED A CAUSE OF ACTION THAT FALLS UNDE AN EXCEPTION TO THE PENNSYLVANIA POLITICAL SUBDIVISION TO T CLAIMS ACT Although Plaintiff fails to identify what cause of action he is bringing, Plaintiff's in his Complaint can only be interpreted to sound in negligence. In his Complaint Plaintiff that he was unlawfully detained at Cumberland County Prison due to an "error" and/or "misinformation." See Plaintiffs Complaint, paragraphs 11 and 13. Defendant County of Cumberland is a political subdivision whose liability for claims in is statutorily prescribed by the Political Subdivisions Tort Claim Act (hereinafter "the Act"). Act provides a general grant of immunity to political subdivisions, their departments and their employees when acting within the scope of their office or duties but provides limited exceptio under which recovery for tort claims may be made against political subdivisions such as Defei These exceptions are to be narrowly construed so as to honor the legislative intent to insulate municipalities from tort liability. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). Under §8542, local agencies are not liable for damages caused by any act of a local agenc~ or an employee unless: (1) the damages would be recoverable under common law and (2) the injury caused by a negligent act of the local government or its agent within one of eight recognized exceptions to tort immunity. 42 Pa. C.S.A. §8542. See Mitchel v. City of Philadelphia, 596 A.2d (Pa. Cmwlth. 1991). Those exceptions aze as follows: (1) Vehicle liability.--The operation of any motor vehicle in the possession or control of the local agency.. . (2) Care, custody or control of personal property. --The care, custody or control of personal property of others in the possession or control of the local agency.... 205 (3) Real property. --The care, custody or control of real property in the possession of the local agency.. . (4) Trees, traff c controls and street lighting. --A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency.. . (5) Utility service facilities.--A dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and. located within rights-of-way... (6) Streets.-- A dangerous condition of streets owned by the local agency... (7) Sidewalks.--A dangerous condition of sidewalks within the rights-of- way of streets owned by the local agency... (8}Care, custody or control of'animals.--The caze, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses. 42 Pa.C.S.A. §8542(b) Plaintiffs Complaint does not fall under any exception to the Pennsylvania Political Subdivision Tort Claims Act. In his Complaint, Plaintiff asserts that he was not released from based on "misinformation" and that the Cumberland County Probation Office made an "error" in reading its own records. These negligence allegations do not fall under any of the above-listed exceptions under the Pennsylvania Political Subdivision Tort Claims Act. As such, Plaintiff's Complaint must be dismissed. WHEREFORE, it is respectfully requested that Plaintiff s Complaint be dismissed with prejudice. 2. PLAINTIFF CANNO SEEK PUNITIVE DAMAGES AGAINST THE COUNTY] OF CUMBERLAND In his "Wherefore" clause, Plaintiff seeks punitive damages. The punitive damages claim against the County must also be dismissed as punitive damages are not recoverable against a agency under tort law. See Newport v. Fact Concerts, Co., 453 U.S. 247 (1988); Bolden v. Septa, 953 F.2d 807 (3d Cir. 1991). 3. PLAINTIFF'S COMPLAINT IS INSUFFICIENTLY SPECIFIC If Plaintiff is not setting forth a negligence action, then he has not pled with sufficient specificity and the Complaint must be dismissed under Pa.R.C.P. 1028(a)(3) and Pa.R.C.P. 101. A complaint must give the defendants fair notice of the plaintiff's claims and the summary of the ', material facts to support those facts. Yacoub v. Lehi hg Valley Medical Associates, 805 A.2d 5 (Pa.Super. 2002). Respectfully SSOCIATES BY E. M~u ion, Esq. for the County of Cumberland VERIFICATION I, Christine E. Munion, Esquire, state that the facts in Defendant's Preliminary Objections to Plaintiff s Complaint and Memorandum of Law Thereto are true and correct to the best of my knowledge, information and belief. This Verification is made with knowledge of the penalties contained in 18 Pa. C.S.A. &4904, relating to unsworn verification to authorities. B Dated: August 22, 2012 WILLIAM J. FERREN & ASSOCIATES Christine E. Munion, ESQUIRE IDENTIFICATION NO. 72724 10 Sentry Parkway, Suite 301 Blue Bell, PA 19422 (215) 274-1731 ATTORNEY FOR DEFENDANT CUMBERLAND COUNTY DARWIN BROSIUS COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. CUMBERLAND COUNTY NO. 12-4343 CERTIFICATE OF SERVICE I, Christine E. Munion, Esquire, hereby certify that I have served upon all persons listed below a true and correct copy of Defendant's Preliminary Objections to Plaintiff's Complaint Memorandum of Law Thereto in the above-captioned matter this date by First-Class Mail, prepaid to all parties listed below: Jerry A. Philpott, Esquire 227 N. High Street P.O. Box 116 Duncannon, PA 17020 ASSOCIATES BY: ~lapl'stine`~. IGI mo ,Esq. Attorney for th ounty of Cumberland Dated: August 22, 2012 EXHIBIT "A" . ` _ ~. DARWIN K. BROSIUS, IN THE COURT OF COMMON PL~E}. Plaintiff OF CUMBERLAND COUNT~'P~ NO: I ~~ ~' ~~ 1. t~l ~ ~r*' ~ ~ vs m . Z~ ~ c w ~ ~ 'o CUMBERLAND COUNTY, CIVIL r Defendant io = n _ G = y -- r*-. NOTICE ?^', -c -~ You have been sued in court. If you wish to defend against the claims set forth in h following pages, you must take action within 20 days after this complaint and notice are served, b entering a written appearance personally or by attorney and filing in writing with the court y u defenses or objections to the claims set forth against you. You are warned that if you fail to d s the case may proceed without you and a judgment may be entered against you by the court with u further notice for any money claimed in the complaint or for any other claim or relief requested b the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE 7 OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HE Lawyer Referral Service 100 South Street, P.U. Box 186 Harrisburg, PA 17108 1-800-692-73 75 July 12, 2012 or MidPenn Legal Services 213 N. Front Street I Harrisburg, PA 17101 I 1-800-932-0356 \ _ Je . Philpotf, sgwre 2 N. High Stree , P.O. Box 116 j ~Duncannon, PA 1 020 ' 717-834-3087 -- - _ ~ _ DARWIN BROSIUS, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PA CUMBERLAND COUNTY, CIVIL Defendant COMPLAINT COMES NOW the plaintiff and complains of the defendant as follows: 1. Plaintiff is Darwin Brosius, an individual who resides at 1200 Rossmoyne Rod, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant is Cumberland County, a political subdivision of the Commonwealth ~ o Pennsylvania with offices in the Cumberland County Courthouse in Carlisle, PA. 3. On November 7, 2011, plaintiff was involved in an accident in Cumberland County a~ a result of which he was chazged with Driving Under the Influence of Alcohol. 4. He was eventually taken by the arresting office to the Cumberland County Prison ~or preliminary arraignment. 5. At some point, bail was set at ROR. 6. Plaintiff is informed and believes that after his bail was set, he was detained further beca se an official with the Cumberland County prison contacted the Cumberland County Probati n Office's."duty probation officer" to determine whether there were any probation or par le detainers. i 7. Plaintiff does not claim that either his initial arrest, his transportation to Cumberland Cou ty Prison, or the phone call to check for detainers were illegal. This complaint is based on w at happened next. i 8. Plaintiff did have a 2006 Cumberland County DUI conviction on which he had receiv d Intermediate Punishment. As of November 2011, he had long since completed his sente e and all probation. i 9. Nevertheless, someone informed the Cumberland County Prison that there was a parole detainer on plaintiff. 1...~' ~li~ ~ . ~~ ~~ S~ a~ 7 ~Y9 10. There was no parole detainer on plaintiff. 11. Based on this misinformation, plaintiff was not released on ROR bail, but was detained 12. After plaintiff's counsel went to see plaintiff at the Cumberland County Prison on Nove 10, 2011, and called the Cumberland County Probation Department to find out why it~ a detainer on plaintiff, plaintiff was forthwith released on ROR bail. 13. Plaintiff believes he was unlawfully detained for about two days in the Cumberland Co ' Prison because of an error of the Cumberland County Probation Office in reading its records. ', 14. Plaintiff was subjected to great humiliation, pain, and suffering by reason of his detenti as described above. WHEREFORE, plaintiff respectfully demands judgment in plaintiff s favor and against defendant in the amount in excess of Fifty thousand dollars ($50,000} exclusive of costs damages for delay, for punitive damages in an amount to be determined by the trier of fact, and such other relief as the court may deem appropriate. Respectfully submitted; .. Jercy~. Philpott, E u' ~2~~~i. High., P. .Box 116 D~uncannon, A .. 020 r.. 717-834-3087 Attorney for Plaintiff Dated: July 10, 2012 2 - - I verify that the statements made in the foregoing documents are true and correct to personal knowledge, information, understanding, and belief. I understand that false stateme t herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsificatio t~ authorities. ~ Darwin Brosius DARWIN K. BROSIUS, : IN THE COURT OF COMMON PLEAS Plaintiff y. : OF PENNSYLVANIA 'n c~ v. :CIVIL COMPLAINT ~3 "' ' ~ Rs'on ~- ; r+'i . FALSE IMPRISONMENT z'", r rn ° CUMBERLAND COUNTY, ~'~_, ca ~~ ~ Defendant :DOCKET NO. ~ ~~, ~~ x~ T, n ~ c-~ PRAECIPE FOR ENTRY OF APPEARANCE vc = rr To the Prothonotary: ~ w ~ COMES NOW, Jerry A. Philpott , Esquire, and enters his appearance in this matter on bel~al of the Plaintiff, Darwin K. Brosius. July 12, 2012 Respectfully submitted: Je A. Phil tt, Esquire preme Co # 2~/ 227 N. High Street, P.O. Box 115 Duncannon, PA 17020 717-834-3087 ": i SHERIFF`S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson _ ' .ILc~-0#~ i iii: sheriff ., j'}#r #'f~?7N~lwG 11"i'~,~ ~oarttr of ~wnbrrJ~~Ia Jody S Smith ~~ - 212 ~~~. 23 AM 8~ 3 Chief Deputy ~ `;} -~!~ Richard WStewart =~' " G~~~~~~A.~~ C©~ ~~ :~ SOifCftOr pFFICE OF'kE S~EA.IF~ PENt~S`(CYAN1 Darwin K. Brosius Case Number vs. Cumberland County Prison 2012-4343 SHERIFF'S RETURN OF SERVICE 07/16/2012 03:50 PM -Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on July 16, 2012 at 1550 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Cumberland County Prison, by making known unto Earl Reitz, Warden for The Cumberland County Prison at The Cumberland County Sheriffs Office, 1 Courthouse Square, Room 3~ Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $28.45 July 17, 2012 SO ANSWERS, RONI~S' R ANDERSON, SHERIFF rc) %ounty5uitc Shenff. feat;r:ofl. P!.: