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J. The Defendant, the Borough of We.t Fa1rv1ew, 1. . duly
ex1.t1ng borough under the law. of the Commonwealth of
Penn.ylvan1a, with it. municipal office located at 410 Cheuy
street, We.t Fairview, Cumberland County, Pennsylvania.
4. The Defendant, the Borough of Wormley.burg, is a duly
exi.ting borough under the law. of the Commonwealth of
Pennsylvania, with it. municipal office located at 20 Market
Street, Wormley.burg, Cumberland County, Penn.ylvania.
5. Th. Defendant, Patrolman Matthew T. Shuey, h an adult
individual, who at the ti.. and plac. of the event. hereinafter
complained of, wa. a duly conltituted and employed police officer
of the above na.ed Defendant, Borough of We.t Fa1rv1ew, and
at the t1.e and .aid place wa. acting within the .cope of hie
authority and under tbe d1recUon and control of the Borough
of We.t 'a1rv1ew Police Depart.ent, We.t 'a1rv1ew, Penn.ylvan1a.
6. The Defendant, Officer M1cbael J. Cotton, 1. an adult
individual, who at tbe time and place of the event. hereinafter
coepla1ned of, wa. a duly con.tituted and e.ployed police officer
of tbe above na.ed Defendant, Ea.t penn.boro Town.hip, and at
the U.e and .aid place wa. acUng witb1n the .cope of hi.
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authori ty and under the direction and control of the Township
of East Pennsboro Police Department, East pennsboro,
Pennsylvania.
7. The Defendant, Patrolman Todd Bashore, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and employed police officer
of the above named Defendant, East pennsboro Township, and at
the time and said place was acting within the scope of hie
authority and under the direction and control of the Township
of East pennsboro Police Department, East Pennsboro,
pennsylvania.
8. The Defendant, Officer Robert Shumaker, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and employed police officer
of the above named Defendant, Borough of Wormleysburg, and at
the time and said place was acting within the scope of hie
authority and under the direction and control of the Borough
of Wormleysburg Police Department, Wormleysburg, Pennsylvania.
9. The Defendant, Patrolman James "rench, is an adult
individual, who at the time and place of the events hereinafter
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complained of, was a duly constituted and employed police
officer of the above named Defendant, Borough of West Fairview,
and at the time and said place was acting within the scope
of his authority and under the direction and control of the
Borough to West Fairview Police Department, West Fairview,
Pennsylvania.
10. The Defendant, Officer Spencer, is an adult individual,
who at the time and place of the events hereinafter complained
of, was a duly constituted and employed police officer of the
above named Defendant, East pennsboro Township, and at the time
and said place was acting within the scope of his authority
and under the direction and control of the East pennsboro
Township Police Department, East Pennsboro, Pennsylvania.
11. The events hereinafter complained of occurred on or about
March 23, 1993 at approximately 8:30 p.m.
12. Prior thereto, the Plaintiff had been fishing with a
companion, Lewis A. Buck, and had in his ~osse88ion a 380 Walther
handgun.
13. Russell C. Fickes was
sportsman's firearm permit
duly licensed
illued under
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and
the
had a valid
authority of
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Section 6106(c) of the Crime. Code, .aid Hcen.. wa. obtained
from the Tioga County Sheriff on or about 1984.
14. The Plaintiff, Ru..eU C. Ficke., .hortly before the time
..t forth above, wa. on hi. way to hi. re.idenc. and he .topp.d
at DUllIphy'. Tavern and Rutaurant to pick up a friend and go
to hi. ho.e.
15. Prior to arriving at Dumphy'., Tavern and reataurant, Weat
Fairvie... Police received a report froll a cith:en who indlcllted
that there "'a. an individual vho va. po.....ing a firearm and
vaa po.aibly intoxicated.
16. Various officer. in the vicinity of We.t Fairviev focuaed
upon a 1991 reel and white Ford pick-up truck1 the officers
obaerved the truck and basically did not detect any erratic
driving a. it proceeded north on Route. 11 and 15 in the Borough
of Ne.t Fairview1 however, one officer did indicate that he
felt there Wa. an abrupt turn onto Hu_el Street in the Borough
of Ea.t Pennaboro Townahip.
17. The .aid pick-up truck exhibited no violation of the "otor
Vehicle Code, nor any .uapiciou. or unu.ual activitY1 however.
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the police pursued the vehicle liS it WllS leglllly operated and
entered into Dumphy's parking lot.
18. At that time, the Plaintiff was positioning his truck and
backing it up to park in a proper and reasonable manner when
police cruisers diverged upon the scene; one crui.er wa.
poaitioned with lights shining into the driver's aide in front
of the truck. An attempt was made to communicate by the pOlice
to the Plaintiff via the public address system, but the police
did not make themselves clear. At or about this time, three
other police cruisers arrived on the scene surrounding the
Plaintiff's pick-up truck.
19. The Plainti ff, Russell C. Fickes, was ordered to put his
hands out of the driver's side window, and he complied with
ssid order.
20. Immediately thereafter, Officer French had exiled from
his cruiser and withdrew his sidearm and was holding it and
pointing it at the direct,ion of the Plaintiff's head; the right
side of his head, approximately three CJ) feet away.
21. Another officer positioned himself on the left aide of
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34. A. a re.ult of the action. and conduct of the variouS police
officers a. .et forth above, the Plaintiff ha. .uffered mental
anxiety, extreme emotional upaet, fruatration and humiliation,
in that he can no longer maintain hia profeasion in a proper
manner a. a roofer, utilizing his tools.
COO1ft' 1
RUSSELL C. FICKES
VB.
PATROLMAN MATTHEW T. SHUEY,
OFFICER MICHAEL J. COTTON,
PATROLMAN TODD BASHORE,
OFFICER ROBERT SHUMAKER,
PATROLMAN JA~lES FRENCH,
OFFICER SPENCER
ASSAULT PD 8A'1"1'DX
3S. paragraphs One (1) through Thirty-four (34) of the foregoing
complaint are incorporated herein and made apart hereof by
reference.
36. The
above named
Defendants,
police
officer. acted
intentionally and willfully towards the plaintiff in that they
cau.ed harmful and offenaive contact with the per.on of the
Plaintiff and placed him in immediate apprehen.ion of harmful
contact in that the police officers po.itioned the..elvea with
their weapons drawn pointing direotly at the head of the
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Plaintiff, all with the threat of force or eminent perU of
forceful retaliation if the police officer.' commands were not
followed.
37. A. a result of this tortious intentional a.sault and battery
by the police officers, the Plaintiff .uffered .evere emotional
di.tre.., .evere mental anxiety, fear of eminent apprehen.ion
of physical harm and contact, phy.ical inj ury, fear and
apprehension of phye1cal shooting by the police officer. with
their weapons and fear of threat and actual harmful phy.ical
contact by the police officers.
38. Said acts by the police officer. were unconsented to,
unprivileged, and in no way permitted under the law8 of the
Commonwealth of Pennsylvania.
39. Said act. were intentional,
inve.tigation and probable cau.e,
force.
accomplished without due
and constituted exce.sive
40. As a re.ult of the acts and conduct of the various police
officers, Plaintiff Buffered phy~ical injury, as .et forth above
and continue. to suffer pain and suffering, mental anxiety,
and phy.ical limitation..
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41 . A. a reaul t of the intentional act. and conduct of the
various police officer., Plaintiff demands judgment again.t
the Defendant., Patrolman Matthew T. Shuey, Officer Michael
J.
Cotton,
Patrolman Todd Ba.hore, Officer Robert Shumaker,
,
Patrolman Jame. French, and Officer Spencer.
42. The Defendants, police officer., physically pulled the
Plaintiff out of hie vehicle and placed him face down on the
.tone parking lot. This force was exce..ive and unnece.sary.
43. The Defendants, the various police officers, intentionally
and offensively touched the Plaintiff, when they physically
removed him from his truck through thE! driver's Bide window,
when they held him face down on the parking lot, pushing hie
face into the .tones, holding all of his extremities, handcuffing
him, throwing him into the back of a police cruiser face down,
aU of the.e acts were in no way consented to by the Plaintiff
and no legal justification exists for such actions by the
Defendants.
44. The Defendants, the various police officers, intentionally
and oUen.ively touched Plaintiff when they fractured hie right
arm and elbow, and fractured three (J) ribs, and placed a knee
in the back of the Plaintiff while he was face down on the stones
in the parking lot, said acta constituted excessive and
unreasonable force.
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54. The Defendant. by their conduct and concerted action,
depriv.d the plaintiff of hi. Con.titutional Right. to b. free
from u.e of exce..ive force, unreasonable .earch and .eizur.,
and due proc....
55. The various pollee officer., under the direct control and
supervi.ion of their respective boroughs and township., singled
out, identified, and u.ed excessive force towards the plaintiff,
Russell C. Fickes.
56. The Plaintiff was picking up a friend at a tavern/r..taurant
and was on his way home, when the pollee officer. followed the
Plaintiff, and even though the various police officers noticed
no erratic driving and had no probable cau.e to .top the
Plaintiff, said police officers detained, encountered,
embarrassed, and used excessive force upon the Plaintiff causing
physical injury.
57. The various police officers, acting within the scop. of
their authority and employment with the respective
boroughs/townships, were acting on information received of an
intoxicated man with a firearm in a truck.
58. Even though the various police officers were inforMed
the operator of the truck was intoxicated, and even though the
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various police officers followed the Plaintiff for a .ufficient
amount of time and noticed no erratic driving, and hael no
probable cau.e to believe the Plaintiff w.. intoxicated and
wa. driving un.afely, the variou. police officer. .urrounded
the Plaintiff while he was parking hie truck at a
tavern/re.taurant.
59. Immediately thereafter, Officer French had exited from
hi. cruiseI:' and withdrew hi. .idearm and wu holding it and
pointing it at the direction of the Plaintiff'. headl the right
.ide of hi. head, approximately three (3) feet away.
60. Another officer poaitioned himself on the left .ide of
the Plainti ff, with hie sidearm drawn and pointed on the left
aide of the head of the Plaintiff, approximately three (3) feet
away.
61. Officer Todd Bashore wa. immediately in front of the
Plaintiff with hi. .hotgun pointed at the front of the
Plaintiff'. truck, approximately eight (8) feet away.
67.. At that time, Off icer French ol'dered that the Plaintiff
be pulled through the window and the Plaintiff was pulled
through the driver'. side window whUe the 91a.. window wa.
up approximately .ix (6) or eight (8) inches, .hattering the
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gla.., and pulling the hand., arms, back of the halr of the
plaintiff and clothing of the Plaintiff, propelling the Plaintiff
approximately four (41 feet forward and onto the stone .urface
of the parking lot.
63. The Plaintiff was face down on the stone. of the parking
area, and the police officers had a hold of each of the
extremities of the plaintiff and the one officer placed a knee
in the Plaintiff's back and then his arms were forced backwards.
64. Even though the Plaintiff did not resist the police officers
in any manner, placed his hands outside of the driver's side
window as ordered, the police officers continued without any
provocation or probable cause whatsoever to exert excessive
physical force upon the Plaintiff causing physical injury, 10..
of income, medical expenses, mental anguish and pain and
.uffering.
65. There is no probable cause for detaining or encountering
and subsequently arresting the Plaintiff, except that the various
police officers were inf()rmed there was a man intoxicated with
a weapon in a truck.
66. The various police officers, by their failure to stop the
Plaintiff while he was driving on the rond en route to Dumphy'.
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Tavern, verity that there was no probable cause to stop the
Plaintiff, and no probable cause to exert excessive physical
force upon the Plaintiff, or threaten him by placinCJ two (2)
sidearm. and one (1) rifle at the head of the Plaintiff.
67. The actions of the police officers violated the
constitutional RiCJhts and laws pertaininCJ to the plaintiff under
the Pennsylvania Crimes Code and Pennsylvania statute., and
in so doinCJ, violated the liberty and civil riCJhts of the
Plaintiff .
68. The various police officers violated the Federal
Constitutional RiCJhts of the plaintiff, both proceelural and
substantive due process as set forth in the United states
Constitution and the Constitution of Pennsylvania when they
detained and/or arre8ted the plaintiff without probable cause,
without sufficient facts for an encounter, investigatory .earch,
Terry search, or any other 18CJal basis and 1n fact, the police
officers arrested and detained and encountered the Plaintiff
based solely on the information of an intoxicated man with a
weapon in a truck and the officers had erroneous information
in that the Plaintiff was leCJally licensed to carry the weapon.
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69. The various police officers have violated the liberty rights
of the plaintiff and also violated his rights of freedom from
u.e of excElssi ve force guaranteed by the Uni ted states and
pennsylvania Constitutions in that without due process of law,
without probable cause and without sufficient legal factual
basis, the officers detained and encountered the Plaintiff.
70. Even though the Defendants, police officers found no
evidence of any violation of the Motor Vehicle Code by the
Plaintiff, they pursued the Plaintiff and exerted excessive
physical force upon the Plaintiff, causing permanent physical
injury, loss of income, medical expenses, mental anguish, and
pain and suffering.
71. At the scene of the encounter, the Defendants, police
officers, detained the Plaintiff and exerted excfls.ive physical
force upon the Plaintiff, even though they had no reason,
evidence or probable cause to do so, in that the Plaintiff had
cooperated with the orders of the police officers.
72. The actions of the Defendants, police officers, caused
the plaintiff physical injury in that his r.ight arm and elbow
were fractured, three 131 ribs were fractured, and he incurred
lacerations of the face.
73. ". a result of the actions of the Defendants, Plaintiff
haB undergone three 131 operations to his arm.
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74. A. a re.ult of the action. of the Defendant., thePlaintUf
ha. a ninety percent 190') 10.. of use of hi. right arm.
75. A. a result of the actions of the Defendants, the Plaintiff
has .uffered the following permanent di.ability:
la) Ninety 190') percent permanent 10.. of the u.e of
hi. right arm in that the ulner nerve waa damaged
due to the ligamenta being to~n cauaing atrophy
to the mu.cle. and 10.. of rotation and lifting
power and movement in said right arm, cau.ing
the fingera to curl and, inability to grasp
tool., uten.il. and other article.;
Ib) Thirty-three 133') percent los. of earning
capacity in that Plaintiff can no longer u.e
hi. right arm in hia profe..ion aa a roofer
and haa .u.tained a permanent diminiahed earning
capacity of thirty-three 133') percent;
Ic) 1.0.. of wage. in the approxim.te amount of
$20,000.00 per year .ince .aid incident.
76. A. a re.ult of the action. of the Defendant., t.he Plaintiff
ha. .uffered phyaical pain, mental pain and .ufferin9, mental
anxiety, and emotional up.et.
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77. A. a r..ult of the .ction. of the D.f.ndant., the Pl.intiff
h.. 10.. time at work, .nd 10.. wag.. in the approxim.te .mount
of Tw.nty Thou.and and nO/l00 (120,000.001 Dollar. per year.
78. a.c.u.. of the d.priv.tion of the Plaintiff'. civil right.,
Attorn.y'. fe.. .r. av.il.bl. und.r S.ction 1988 and henc.,
the Plaintiff r.qu..t. Attorn.y'. f..., which at this point
are und.r Thr.. Thou.and and nO/l00 U3,000.001 Doll.n, but
if furth.r Attorn.y'. f... ar. incurred through .dditional
l.gal .ction, l..v. i. r.qu..t.d of Your Honorable Court to
permit an it.miaed .tatem.nt of the Attorney'. f... to b.
.......d .g.in.t the above n.med Defendant., jointly .nd
..v.rally.
79. Plaintiff'. civil right., Con.titutional Right. have b..n
violated in that under the Fourth Amendment, h. i. .nti tIed
to b. fr.. from unr.a.onabl. ..arch and ..izur.. Th. ofUc.r.
acted without probable cau.. .nd in.ufficient fact. and without
ju.tification, all of eaid .ct. w.re without a warrant and
without probable cau... Henc., this conduct i. actionabl. und.r
S.ction 1983.
80. Th. D.f.ndant., polic. ofUc.r., have no ba.i. to ....rt
qualifi.d i_unity and are liabl. for civil damag.. .. .ward.d
a. w.ll a. the borough. .nd town.hip. .. the conduct cl.arly
violat.. the ..tabli.h.d .tatutory and/or Con.titution.l right..
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81. Th. .ction. of tha v.~iou. police offic~r., the Def.nd.nt.,
by r.ndomly, arbitr.~Uy, and imp~operly, without even. bad.
of .n inv..t1gato~y .top und.~ the Motor Vehicle Code .hock.
the con.ci.nc. and violat.. the civil ~ight. of the 'laintiff.
82. The polic. office~., Defend.nt. in this case, a~re.t.d
.nd/o~ d.t.in.d and .ncount.~ed the Plaintiff in bad faith,
without probable cau.e, and depriving him of his right to ba
f~.. f~olll un~ea.onabl. ..a~ch.. and :!aehure. and due proce..
a. 9u.~.nt..d by the Fourth and rou~tuenth Amendment..
83. Acting under color of law and pUl"lIUant to official policy
or cu.tom, D.fendant. Ealt Penn.bo~o 'i'ownship, Borough of w..t
rairvi.w, and Borough of Wormley.burg, knowingly, reckle..ly
or with d.lib.rat. indiff.rence, and callous disregard of
Plaintiff'. right., failed to in.truct, .upervise, control and
di.ciplin. on a continuing basi. D.fendants, police offic.r.,
in th.i~ duti.. to ~.f~ain froml
A. Unl*wfully and maliciou.ly as.aulting a citizen, and
B. Unl.wfully .nd maUcioualy using unreaaonable .nd
exc...iv. fo~c. before, during and after the making of
an a~re.t wheth.r the .rr..t wa. lawful or unlawful,
C. Con.pi~ing to viol at. tho ~ighta guarant~ed to
,laintiff by the Con.titution and lawa of the Unit.d
Stat.. and the lawa of the Commonwealth of
'.nn.ylvania, and
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D. Otherwise depriving Plaintiff of his Constitutional
and statutory rights, privileges and immunities.
84. Defendants, East pennsboro Township, Borough of West
Fairview, and Borough of Wormleysburg, had knowledge, or had
they diligently exercised their duties to instruct, superviae,
control and discipline on a continuing basis, should have had
knowledge that the wrongs conspired to be done, as heretofore
alleged, were about to be committed.
85. Defendants, East pennsboro Township, Borough of West
Fairview, and Borough of Wormleysburg, had power to prevent
or aid in prevenUng the commission of said wrongs, could have
done so by reasonable diligence and knowingly, recklessly or
with deliberate indifference and callous disregard of Plaintiff's
rights failed or refused to do so.
86. DefendclOts, East Pennsboro Township, Borough of West
Fairview, and Borough of Wormleysburg, directly or indirectly,
under color of law, approvad or ratified the unlawful,
deliberate, malicious, reckless and wanton conduct of Defendant
police officers heretofore described.
8'1. As a direct and proximate cause of the acts of Defendants,
East pennsboro Township, Borough of West rairview, and Borough
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of Wormleysburg, as set forth above, Plaintiff .uffered physical
injury, loss of income, medical expenses, permanent injury,
and severe mental anguish in connection with the deprivation
of his constitutional and statutory rights guaranteed by the
Fourth Amendment of the Constitution of the United state. and
the constitution of the Commonwealth of Pennsylvania.
88. The Defendants, police officers were not trained in the
proper arrest procedure of a misdemeanor, when they have not
viewed said misdemeanor. All of which constitutes liability
for the Constitutional Rights violation of the Plaintiff upon
the boroughs and townships ill that all actions above set forth
have contributed to deprivation of the Plaintiff's civil rights.
89. The Defendants, the various police officers, did not have
sufficient information to convince them, as reasonable police
officers, that the Plaintiff had actually committed a crime,
or was committing a crime at that time.
90. The Defendants, the various police officers, did not have
sufficient information, as reasonablo police officers on the
scene, that use of excessive force was necessary.
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91. rederal Law provides that any individual may .eek redre.s
before Your Honorable Court by way of money damage. again.t
any per.ons such as the various police officers, and borough.
and town.hips named herein, who under color of state law deprive
that individual of his constitutional Rights as set forth above.
92. Plaintiff seeks punitive damages because there was no ba.is
for the excessive physical force utilized by the various
Defendants, police officers.
WHEREFORE, Plaintiff demands judgment again.t the
Defendants, East Pennsboro Township, Borough of Welt rairview,
Borough of wormleysburg, Patrolman Matthew T. Shuey, Officer
Michael J. Cotton, Patrolman Todd Bashore, Officer Robert
Shumaker, Patrolman James French, and Officer Spencer, jointly
and severally for compensatory damages in an amount in exce..
of Twenty Thousand and no/100 ($20,000.00) Dollars plus intere.t,
cOlts of suit, Attorney's fees, and Plaintiff further demand.
judgment against the Defendants, Patrolman Matthew T. Shuey,
officer Michael J. cotton, Patrolman Todd Bashore, Officer Robert
Shumaker, Patrolman James French, and Officer Spencer, jointly
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3. The Defendant, the Borough of W..t Fairview, 18 a duly
exi.ting borough under the laws of the Commonwealth of
pennsylvania, with its municipal office located at 410 Cherry
street, West Fairview, Cumberland county, Pennsylvania.
4. The Defendant, the Borough of wormleysburg, is a duly
exi.ting borough under the laws of the commonwealth of
penn.ylvania, with its municipal office located at 20 Market
street, Wormleysburg, Cumberland County, Pennsylvania.
,
5. The Defendant, Patrolman Matthew T. Shuey, is an adult
individual, who at the time and place of the evtints hereinafter
complained of, was a quly constituted and employed police officer
of the above named Defendant, Borough of west Fairview, and
at the time and said place was acting wi thin the scope of his
authority and under the direction and control of the Borough
of West Fairview police Oepartment, West Fairview, Pennsylvania.
6. The Defendant, Officer Michael J. Cotton, is an adult
individual, who at the time and place of the events hereinafter
complained of, waa a duly constituted and employed police officer
of the above named Oefendant, East Pennshoro Town.hip, and at
the time and said place was acting within the scope of hi.
-2-
authority and under the direction and control of the Township
of East Penn&boro police Department, East Pennsboro,
Pennsylvania.
7. The Defendant, Patrolman Todd Bashore, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and employed police officer
of the above named Defendant, East pennsboro Township, and at
the time and said place was acting wi thin the scope of his
authority and under the direction and control of the Township
of East pennsboro Police Department, East pennsboro,
Pennsylvania.
8. Th& Defendant, Officer Robert Shumaker, 1s an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and employed police officer
of the above named Defendant, Borough of Wormleysburg, and at
the time and said place was acting within the scope of his
authority and under the direction and control of the Borough
of Wormleysburg Police Department, Wormleysburg, Pennsylvania.
9. The Defendant, Patrolman James French, is an adult
indi vidual, who at the time and placo of the evente hereinafter
-)-
complained of, waa a duly constituted and employed police
officer of th. above named Defendant, Borough of West rairview,
anel at the time and Ilaid place was acting within the SClope
of his authority and under the direction and control of the
Borough to West rairview Police Department, West Fairview,
Pennsylvania.
10. The Defendant, Officer Spencer, is an adult individual,
who at the time and place of the events hereinafter complained
of, was a duly constl.tuted and employed police officer of the
above named Defendant, East pennsboro Township, and at the time
and said place was acting within the scope of his authority
and under the direction and control of the East Pennsboro
Township Police Department, East Pennsboro, Pennsylvania.
11. The events hereinafter complained of occurred on or about
March 23, 1993 at approximately 8:30 p.m.
12. Prior thereto, the Plaintiff had been fishing with a
companion, Lewis A. Buck, and had in his possession a 380 Walther
handgun.
13. Russell
sportsman's
C. Fickes was
f irear'm permi t
duly licensed
issued under
and
the
had a valid
authority of
-4-
Section 6106(c) of the Crimes code, said license was obtained
from the Tioqa County Sheriff on or about 1984.
14. The Plaintiff, Russell C. Fickes, shortly before the time
.et forth above, was on his way to his residence and he stopped
at Dumphy's Tavern and Restaurant to pick up a friend and qo
to his home.
15. Prior to arriving at Dumphy's, Tavern and restaurant, West
Fairview police received a report from a citizen who indicated
that there was an individual who was possessinq a firearm and
was possibly intoxicated.
16. Various officers in the vicinity of West Fairview focu.ed
upon a 1991 red and white Ford pick-up truckJ the officer.
observed the truck and basically did not detect any erratic
driving as it proceeded north on Routes 11 and 15 in the Borouqh
of West FairviewJ however, one officer did indicate that he
felt there was an abrupt turn onto Hummel Street in the Borouqh
of Ea.t Pennsboro Township.
17. The said pick-up truck exhibited no violation of the Motor
Vehicle Code, nor any suspicious or unusual activitYJ however,
-5-
the police pur.ued the vehicle as it ws. legally operated and
entered into Dumphy's parking lot.
18. At that time, the Plaintiff was positioning his truck and
backing it up to park in a proper and reasonable manner when
police cruisers diverged upon the scene; one cruiser was
po.itioned with lights shining into the driver's aide in front
of the truck. An attempt was made to communicate by the police
to the Plaintiff via the public addreu system, but the police
did not make themselves clear. At or about this time, three
other police cruisers arrived on the scene surrounding the
Plaintiff's pick-up truck.
19. The Plaintiff, Ruuell C. Fickes, was ordered to put his
hands out of the driver's aide window, and he complied with
said order.
20. Immediately thereafter, Officer French had exited from
his cruiser and withdrew his sideaz'm and was holding it and
pointing it at the direction of the Plaintiff's head; the right
side of his head, approximately three 13) feet away.
21. Another officer positioned himself on the left 8ide of
-6-
25. Aa a re.ult of the officer.' coneluct, the Plaintiff'. right
arm and elbow were fractured; he further incurred laceration.
of the face, three rib. were fractured on the left side, and
the Plaintiff '. left leg was black and blue from the buttock.
to the foot.
26. The plaintiff screamed that his arm was broken and the
police handcuffed him with his arms behind his back, walked
him to a cru1eer in the alleyway and then threw him into the
back of the cruiser face down where he 8tayed until he wa. taken
to the ho.pital. The Plaintiff constantly requested to be put
in an upright position and the police refu.ed to do 80.
27. The police officers took the plaintiff to the Holy Spirit
Hospital, emergency room, for treatment where the Plaintiff
was treated for approximately two (2) hours and then relea.ed.
28. A. a result of the Defendant8', police officers' conduct,
the Plaintiff sustained the following injuries;
la) Fractured right arm and elbow;
lb) Fractured rib. (3) on the left .\del
lc) Laceration. of the face;
-8-
(d) Left leg black and blue f~om the buttocks to the foot.
29. As a result of the conduct and the actions of the various
police officers, the Plaintiff then was required to see the
firm of orthopedic surgeons, Ltd., located on Trindle Road,
camp Hill, pennsylvania.
30. A. a result of the actions and conduct of the various police
officers, the plaintiff received the following treatment:
(a) Three operations to the right arm and elbow;
(b) Physical therapy sessions continuously up until
August of 1994.
31. As a result of the injuries, the plaintiff has suffered
the following permanent disability:
(a) Ninety (90\' percent permanent loss of the use of
his right arm in that the ulner nerve was damaged
due to the ligaments being torn causing atrophy
to the muscles and loss of rotation and lifting
power and movement in said right arm, causing
the fingers to curl and, inability to grasp
tools, utensils, and other articles,
-9-
34. As a result of the actions and conduct of the various police
J
officers as set forth above, the Plaintiff has suftered mental
anxiety, extreme emotional upset, frustration and humiliation,
in that he can no longer maintain his protession in a proper
manner as a roofer, utilizing his tools.
COUM' I
RUSSELL C. FICKES
vs.
EAST PENNSBORO TOWNSHIP, et al.
ASSAULT AND BA'l"'l'BRY
35. Paragraphs One (1) through Thirty-four (34) ot the toregoing
Complaint are incorporated herein and made apart hereot by
reference.
36. The above named Defendants, police ofticers acted
intentionally and willfully towards the Plaintiff in that they
caused harmtul and offensive contact with the person of the
Plaintiff and placed him in immediate apprehension of harmful
contact in that the police officers positioned them51elves with
their weapons drawn pointing directly at the head of the
Plaintiff, all with the threat of force or eminent peril of
forceful retaliation if the police officers' commands were not
followed.
-11-
41. As a result ot the intentional acts and conduct ot the
various police officers, Plaintltt demands judgment against
the Defendants, as there was a master/servant relationship
existing between the various police departments and the
respective boroughe or townships in that the police officers
were acting within the scope of their employment and under the
control and supervision of the Defendants/boroughs and townships.
42. The Defendants, acting within their authority within the
scope of their employment, physically pulled the Plaintiff out
of his vehicle and placed him face down on the stone parkin9
lot. This force was excessive and unnecessary.
43. The Defendants, the various police officers, intentionally
and offensively touched the Plaintiff, when they physically
removed him from his truck through the driver's side window,
when they held him face down on the parking lot, pushing his
face into the stones, holding all of his extremities, handcuffin9
him, throwing him into the back of a police cruiser face down,
all of these acts were in no way consented to by the Plaintiff
and no legal justification exists for such actions by the
Defendants.
-13-
44. The Defendants intentionally and offensively touched
Plaintitt when they fractured his right arm and elbow, and
tractured three (3) ribs, and placed a knee in the back of the
Plaintitt while he was face down on the stones in the parking
lot, sdd acts constituted excessive and unreasonable force.
45. The intentional and torceful acts of the Defendant.
constituted an unconsented to and unwarranted harmful contact
and touching of Plaintitf's person in that Plaintiff was
physically removed, pushed face down on stones of a parking
lot, handcuffed, thrown into a police cruiser, causing physical
injury, physical pain and suffering, mental anxiety, and
emotional distress.
WHEREFORE, Plaintiff demands judgment against the Defendant.
in an amount in excess of Twenty Thousand and no/l0fl
U20,000.00) Dollars plus interest and costs.
-14-
53. The various police otficers, while acting under their
employment and under the supervision and within the scope ot
authority of the Defendants, boroughs and townships, intended
to and did confine the Plaintiff for an unnecessarily long period
of time.
54. The acts of the various police officers, while acting within
the scope ot their authority and under the employment control
of the various boroughs and townships, resulted in the
confinement of the Plaintiff for an unnecessarily long period
of time, preventing him to leave the area.
55. As a result of the intentional confinement by the various
police officers, the Plaintiff was conscious of said confinement
and harmed by it, in that he lost his liberty for an
unnecessarily long period of time, was exposed to excessive
torce, physical injury, and was exposed to the observation by
the patrons of the tavern and restaurant, neighbors, and
motorists passing by the area at the above time and place.
56. As a result of the false imprisonment, the Plaintitf
8uffered disruption of his life, interference with his time,
humiliation, physical harm, emotional upset, and mental anguish.
-17-
60. The vari.:lU8 police officers, under the direct control and
supervision of their respective boroughs and townships, singled
out, identified, and used excessive force towards the Plaintiff,
RUBsell C. Fickes.
61. The Plaintiff was picking up a friend at a tavern/r~staurant
and was on his way home, when the police otficers followed the
Plaintiff, and even though the various police otficers noticed
no erratic driving and had no probable cause to stop the
Plaintiff, said police officers detained, encountered,
embarrassed, and used excessive force upon the Plaintiff causing
physical injury.
62. The various police off icers, acting wi thin the scope of
their authority and employment with the respective
boroughs/townships, were acting on information received of an
intoxicated man with a firearm in a truck.
63. Even though the various police officers were informed
the operator of the truck was intoxicated, and even though the
various police officers followed the Plaintiff for a sufficient
amount of time and noticed no erratic driving, and had no
probable cause to believe the Plaintiff was intoxicated and
-19-
wall driving unsafely, the various police officers surrounded
the Plaintiff while he was ~arking his truck at a
tavern/restaurant, pointed at least three (3) weapons, two (2)
sidearms and one (1) rifle at the head of the Plaintitf, ordered
the Plaintiff to place his hands outside of the driver's side
window, which the Plaintiff did immediately, physir:ally pulled
the Plaintiff from his truck through the driver I s side window
IIhattering the gl.au, wi th the Plaintiff landing on the parking
lot ot the tavern/restaurant, and continued to exert excellsi ve
physical force upon the plaintiff to the point that the various
police officers fractured the right arm and elbow of the
plaintiff, fractured three (3) ribs, and caused lacerations
of the face of the Plaintiff.
64. Even though the Plaintiff did not resist the police officers
in any manner, placed his hands outside of the driver's side
window as ordered, the police officers continued without any
provocation or probable cause whatsoever to exert exces8ive
phY8ical force upon the Plaintiff causing physical injury, mental
anxiety, pain and suffering, and emotional upset.
65. There is no probable cause for detaining or ftncountering
and subsequently arresting the Plaintiff, except that the various
police officers were informed there was a man intoxicated with
a weapon in a truck.
-20-
66. The various police officers, by their failure to stop the
Plaintitf while he was driving on the road en route to Dumphy's
Tavern, verify that there was no probable cause to stop the
Plaintift, and no probable cause to exert exce88i ve physical
force upon the Plaintiff, or threaten him by placing two (2)
sidearms and one (1) rifle at the head of the Plaintiff.
67. The actions of the police officers violated the
Constitutional Rights and laws pertaining to the Plaintitf under
the Pennsylvania Crimes Code and Pennsylvania statutes, and
in so doing, violated the Uberty and civil rights of the
Plllintiff.
68. The various police officers violated the Federal
Constitutional Rights of the Plaintiff both procedural and
substantive due process as set forth in the Fifth and Fourteenth
Amendments of the United states Constitution and the Constitution
of Pennsylvania when they detained and/or arrested the Plaintift
without probable cause, without sufficient facts tor an
encounter, investigatory search, Terry search, or any other
legal basis and in fact, the police ofticers arrested and
detained and encountered the Plaintiff based solely on the
information of an intoxicated man ....i th a weapon in a truck and
the officers had erroneous information in that the Plaintiff
was legally licensed to carry the weapon.
-21.
69. The various police officers have violated the liberty rights
of the Plaintift and also violated hll rights from freedom of
bodily restraint guaranteed by the United state. and Pennsylvania
Constitutions in that without due process of law, without
probable cause and without sutficient legal factual basis, the
officers detained and encountered the Plaintift.
10. Even though the Defendants, police officers tound no
evidence ot any violation of the Motor Vehicle Code by the
Plaintiff, they pursued the Plaintiff and exerted excessive
physical force upon the Plaintiff, physically injuring him.
71. At the scene of the encounter, the Defendants, police
otficers, detained the Plaintiff and exerted excessive physical
torce upon the Plaintiff, even though they had no reason,
evidence or probable cause to do so, in that the Plaintift had
cooperated with the orders of the police officers.
72. The actions of the Defendants, police officers, caused
the plaintiff physical injury in that his right arm and elbow
were fractured, three C 3) ribs were fractured, and he incurred
lacerations of the face.
-22-
76. As a result of the actions of the oetendants, the Plaintiff
has suffered physical pain, mental pain and suffering, mental
anxiety, and emotional upset.
77. As a result of the actions ot the Defendants, the Plaintift
has loss time at work, and loss wages in the approximate amount
of Twenty Thousand and nO/l00 ($20,000.00) Dollars.
78. Because of the deprivation of the Plaintiff's civil rights,
Attorney's fees are available under section 1988 and hence,
the Plaintiff requests Attorney's fees, which at this point
are under Three Thousand and nO/l00 ($3,000.00) Dollars, but
if further Attorney's fees are incurred through additional
legal action, leave is requested of Your Honorable Court to
permit an itemized statement of the Attorney's fees to be
a.sessed against the above named Defendants, jointly and
severally.
79. Plaintiff's civil rights, Constitutional Rights have been
violated in that under the Fourth Amendment, he is entitled
to be free from unreasonable search and seizure; under the Eight
Amendment, t,he Plaintiff is entitled to be free from excessive
force. The officers acted without probable cause and
-24-
insutticient facts and without justification, all ot laid act.
were without a warrant and without probable cause. Hence, thil
action is actionable under Section 1983.
80. The Defendants, police officers, have no basis to alsert
qualified immunity and are liable for civil damagel as awarded
as well al the boroughs and townlhips as the conduct clearly
violate. the established statutory and/or Constitutional rights.
81. The actions of the various police ofticers, the Defendant.,
by randomly, arbitrarily, and improperly, without even a basi.
of an investigatory stop under the Motor Vehicle Code shocks
the conscience and violates the civil rights of the Plaintiff.
82. The boroughs and townships also violated the Constitutional
and civil rights ot the Plaintiff in that they failed to properly
train their respective police officers.
83. The police officers, Defendants in this case, arrested
and/or detained and encountered the Plaintiff in bad faith,
without probable cause, and depriving him hi. right to be free
from unreasonable searches and seizures guaranteed by the Fourth
A..endment, to be free from exce.si ve force guaranteed by the
light Amendment, and due process as guaranteed under the Fourth
and Fift.enth Amendments.
-25-
84. The respective boroughs and townships through the encounter,
arrest and/or detention of the Plaintift, evidenced the custom
or otticial policy which proximately caused the Constitutional
violations alleged herein.
85. The respective boroughs and townships failed
instruct, supervise, control and discipline on a
basis the respective police officers in the
Constitutional and civil rights.
to train,
continuing
area of
86. The Defendants. police officers were not trained in the
proper arrest procedure of a misdemeanor, when they have not
viewed said misdemeanor. All of which constitutes liability
fo.'C' the Constitutional Rights violation of the Plaintiff upon
the boroughs and township. in that all actions above set forth
have contributed to deprivation of the Plaintiff's civil right..
87. Th~ Defendants, various police officers, were never given
sutticient information to convince them or a reasonable man
that the Plaintiff had actually committed a crime.
88. Federal Law provides that any individual lIIay seek redress
before Your Honorable Court by way of money damages against any
-26-
.
prejudice pursuant to Judge Sheely's Opinion and Order dated
September 14, 1995.
4. Denied. It is denied that Borough of Wormleysburg is an
appropriate Defendant in this action. By way of further answer,
the claims against Borough of Wormleysburg were dismissed with
prejudice pursuant to Judge Sheely's Opinion and Order dated
September 14, 1995,
5. Denied as stated. It is admitted only that at all times
material hereto, Answering Defendant Shuey was a duly constituted
and hired police officer, employed by the Borough of West Fairview.
By way of further answer, Answering Defendants are advised by
counsel and therefore aver that the remaining allegations of
paragraph 5 of Plaintiff's Amended Complaint constitute conclusions
of law to which no response is required pursuant to the
Pennsylvania Rules of Civil Procedure and the same are therefore
deemed to be denied.
6. Denied as stated. It is admitted only that at all times
material hereto, Answering Defendant Cotton was a duly constituted
and hired police officer, employed by East 1?ennsboro Township. By
way of further answer, Answering Defendants are advised by counsel
and therefore aver that the remaining allegations of paragraph 6 of
Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure and the same are therefore deemed to be denied.
2
.
7. Denied as stated. It is admitted only that at all times
material hereto, Answering Defendant Bashore was a duly constituted
and hired police officer, employed by East pennsboro Township. By
way of further answer, Answering Defendants are advised by counsel
and therefore aver that the remaining allegations of par~graph 6 of
Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure and the same are therefore deemed to be denied.
8. The averments of paragraph 8 of Plaintiff's Amended
Complaint are directed to a person other than Answering Defendants
and no response is required.
9. Denied as stated. It is admitted only that at the time
of this incident, Answering Defendant French was a duly constituted
and hired police officer, employed by the Borough of West Fairview.
By way of further answer, Answel'ing Defendants are advised by
counsel and therefore aver that the remaining allegations of
paragraph 9 of Plaintiff' s Amended Complaint constitute conclusions
of law to which no response is required pursuant to the
Pennsylvania Rules of Civil Procedure and the same are therefore
deemed to be denied.
10. Denied as stated. It io admitted only that at all times
material hereto, Answering Defendant Spencer was a duly constituted
and hired police officer. employed by the East pennsboro Township.
By way of further answer, Answering Defendants are advised by
3
counsel and therefore aver that the remaining allegations of
paragraph 10 of Plaintiff's Amended Complaint constitute
conclusions of law to which no response is required pursuant to the
Pennsylvania Rules of Civil Procedure and the same are therefore
deemed to be denied.
11. Admitted.
12. Admitted in part, denied in part. It is admitted only
that at the time of this incident, Plaintiff had in his possession
a 380 Walther hand gun. By way of further answer, after reasonable
investigation, Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments of paragraph 12 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
13. Denied. It is denied that Plaintiff, as a felon,
convicted of several crimes of violence, was duly licensed and had
a valid eportsma'l' s firearm permit. By way of further answer,
after reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a helief as to the
truth of the remaining averments of paragraph 13 of Plaintiff's
Amended Complaint and the same are therefore denied with strict
proof demanded, if relevant. To the extent that further answer may
be deemed appropriate, Answering Oefendants are advised by counsel
and therefore aver that the remaining allegations of paragraph 13
4
of Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure and the same are therefore deemed to be denied.
14. Denied. After reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the averments of paragraph ,14 of
Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
15. Denied as stated. It is admitted only that two citizens
complained to Answering Defendant Shuey that they had seen
Plaintiff in an intoxicated condition at the West Fairview Inn,
that the Plaintiff was operating the vehicle under that condition,
and that there was a hand gun on the front seat of Plaintiff's
truck.
16. Admitted in part, denied in part. It is admitted only
that upon receipt of the citizen complaints that Plaintiff was
operating the red and white pick-up truck under the influence of
alcohol and in possession of a firearm, Answering Defendants Shuey
and French followed Plaintiff's vehicle as it proceeded north on
Routes 11 and 15 in the Borough of WeRt Fairview. By way of
further answer, it is denied that the officers did not detect any
erratic driving as Plaintiff's vehicle proceeded north on Routes 11
and 15.
5
17. Denied. Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 17 of Plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of Civil
Procedure and the same are therefore deemed to be denied. By way
of further answer, at all times material hereto, there was a
reasonable and articulable suspicion to effectuate an investigatory
stop of Plaintiff's vehicle.
18. Denied as stated. When Answering Defendant Shuey
activated his overhead lights and attempted to position his police
cruiser behind Plaintiff's vehicle, Plaintiff put his vehicle in
reverse and attempted to back up. Answering Defendant Shuey then
used his public address system to tell the Plaintiff to place his
hands outside the driver's side of the vehicle, but Plaintiff
refused to comply and Plaintiff appeared to be fumbling with
something out of view of Answering Defendant. By way of further
answer, after Plaintiff refused to comply with repeated directives
to place his hands outside the vehicle and after Plaintiff kept
moving both hands inside the passenger compartment and towards his
lap, Answering Defendant French radioed cumberland County Control
and Answering Defendants Bashore, Cotton and Spencer, along with
Defendant Shumaker then arrived on the scene. To the extent that
further answer may be deemed appropriate, it is denied that the
police vehicles surrounded Plaintiff's vehicle as alleged.
6
19. Admitted in part, denied in part. It is admitted only
that Answering Defendants repeatedly ordered Plaintiff to put his
hands out of the driver's side window of the vehicle. By way of
further answer, it is denied that Plaintiff complied with repeated
orders to place his hands outside of the vehicle. To the contrary.
Plaintiff kept moving both of his hands inside the passenger
compartment of the vehicle and towards his lap.
20. Denied. It is denied that Answering Defendant French,
immediately after Plaintiff's vehicle was stopped. withdrew his
side arm and pointed it at the direction of Plaintiff's head as
alleged in paragraph 20 in Plaintiff's Amended Complaint.
21. Denied. It is denied that another officer withdrew his
side arm and pointed it at the left side of Plaintiff's head as
alleged in paragraph 21 of Plaintiff's Amended Complaint.
22. Denied. It is denied that immediately following the
investigatory stop of Plaintiff's vehicle that Answering Defendant
Bashore stood in front of the Plaint if f' s vehicle and pointed a
shotgun at the truck as alleged in paragraph 22 of Plaintiff's
Amended Complaint. By way of further answer, it is denied that
Answering Defendant Bashore had a shotgun in his possession at any
time during this incident.
23. Denied. It is denied that Answering Defendant French
ordered the Plaintiff to be pulled through the window and it is
also denied that Plaintiff was propelled four (4) feet forward and
7
onto the atone surface of the parking lot. Answering Defendant
Basnore was the officer that directed that Plaintiff be removed
from the interior of the vehicle. Answering Defendant Cotton was
positioned near the windshield and front fender of plaintift'.
vehicle and advised the other officers that Plaintiff had a handgun
on the front seat of the vehicle. By way of further answer,
despite being told repeatedly to keep his hands outside of the
truck window, Plaintiff continually pulled his hands back inside
the vehicle where the firearm was located. To the extent that
further answer may be deemed appropriate, as a direct and proximate
result of Plaintiff's obdurate refusal to cooperate and out of
legitimate concerns for their safety, Answering Defendants Bashore
and Shuey, along with Defendant Shumaker pulled the Plaintiff
through the driver's side window.
24. Denied as stated. It is denied that plaintiff was tace
down on the stones of the parking lot and it is also denied that an
officer placed a knee in Plaintiff's back or that Plaintiff's arms
were forced backwards as alleged in paragraph 24 of Plaintiff's
Amended Complaint. By way of further answer, while on the ground.
Plaintiff continued to struggle and resist the officers' attempts
to handcuff him.
25. Denied. It is denied that the Plaintiff sustained any
injuries and/or damages as alleged in this paragraph as a result of
Answering Defendants' conduct. By way of further answer, the sole,
8
direct, and pro~imate cause of Plaintiff's claimed injuries was
Plaintiff's own intentional, reckless, willful, and unlawful
conduct.
~6, Admitted in part, denied in part. It is admitted only
that plaintiff was eventually handcuffed and placed in a police
cruiser. By way of further answer, it is denied that the Answering
Defendants broke Plaintiff's arm or threw the plaintiff into the
back of. the cruiser face down. It is also denied that plaintiff
requested and the police refused to place him in an upright
position as alleged.
~7. Admitted in part, denied in part. It is admitted only
that Plaintiff was taken to the Holy Spirit Hospital emergency room
for treatment and was released. By way of further answer, after
reasonable investigation, Answering Defendants are without
knowledge or information sufficient to form a belief as to the
truth of the remaining averments of paragraph 27 of Plaintiff's
Amended Complaint and the same are therefore denied with strict
proof demanded, if relevant.
28. Denied. It is denied that Answering Defendants' conduct
cau.ed any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, it is denied that plaintiff sustained three
fractured ribs on the left side as alleged.
~9. Denied. It is denied that Answering Defendants' conduct
caused any injuries and/or damages to the Pla.intiff as alleged. By
9
way ot further answer, after reasonable investigation, Answerin9
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 29
of Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
30. Denied. It is denied that Answering Defendants' conduct
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, after reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 30
of Plaintiff's Amended Complaint and the same are tnerefore denied
with strict proof demanded, if relevant.
31. Denied. It is denied that Answ~ring Defendants' conduct
caused any injuries and/or damages to the Plaintiff as alleged in
paragraph 31 of Plaintiff's Amended Complaint. By way of further
answer, it is denied that Plaintiff has sustained any permanent
loss of use of his right arm, or has sustained any loss of earning
capacity or loss of wages as alleged.
32. Denied. It is denied that Answering Defendants' actions
and conduct caused any injuries and/or damages as alleged in
paragraph 32 of Plaintiff's Amended Complaint and the same are
therefore denied with strict proof demanded if relevant.
33. Denied. It is denied that Answering Defendants' actions
and conduct caused any injuries and/or damages as alleged in
10
paragraph 33 of Plaintiff's Amended Complaint and the same are
therefore denied with strict proof demanded if relevant.
34. Denied. It is denied that Answering Defendants' actions
and conduct caused any injuries and/or damages as alleged in
paragraph 34 of PlaL'ltiff's Amended Complaint and the same are
therefore denied with strict proof demanded if relevant.
COUNT I
ASSAULT AND IlATT.RY
35. Answering Defendants incorporate by reference the
averments of paragraphs 1 through 34 of their Answer with New
Matter to plaintiff's Amended Complaint as if fully set forth at
length herein.
36. Denied. Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 36 of Plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of Civil
Procedure and the same are therefore deemed to be denied.
37. Denied. It is denied that Answering Defendants' actions
constituted tortious assault and battery as alleged. By way of
further answer, after I'easonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 37
of plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
11
38. Denied. Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 38 of plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the pennsylvania Rules of Civil
procedure, and the same are therefore deemed to be denied.
39. Denied.
It is denied that Answering Defendants acted
without due investigation and probable cause and it is a180 denied
that Answering Defendants used any excessive force as alleged. By
way of further answer, Answering Defendants are advised by counsel
and therefore aver that the allegations of paragraph 39 of
plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the pennsylvania Rules of
Civil procedure, and the same are therefore deemed to be denied.
40. Denied. It is denied that Answering Defendants' conduct
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, after reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 40
of plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
41. Denied. It is denied that Answering Defendants are in
any way liable to the plaintiff as alleged in paragraph 41 of
plaintiff'S Amended Co~plaint.
I
,\
12
.....-
,
42. Admitted in part, denied in part. It is admitted only
that Answering Defendants Shuey, Bashore, along with Defendant
Shumaker physically pulled the Plaintiff out of his vehicle after
Plaintiff refused to cooperate with repeated demands to place his
hands outside of the vehicle. By way of further answer, it is
denied that any excessive and/or unnecessary force was used against
the Plaintiff, and it is also denied that Answering Defendants
place Plaintiff face down on the stone parking lot as alleged.
43. Danied. Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 43 of Plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of Civil
Procedure and the same are therefore deemed to be dsnied. By way
of further answer, Answering Defendants incorporate by reference
the averments of paragraphs 6 and 42 of their Answer with New
Matter to Plaintiff's Amended Complaint as if fully set forth at
length herein.
44. Denied. It is denied that Answering Defendants used any
excessive and unreasonable force and it is also denied that
Answering Defendants caused any injuries and/or damages to
"laintiff as alleged. By way of further answer, Answering
Defendants are advised by counsel and therefore aver that the
remaining allegations of paragraph 44 of Plaintiff's Amended
Complaint constitute conclusions of law to which no response is
13
I
required pursuant to the pennsylvania Rules of Civil procedure and
the same are therefore deemed to be denied.
45. Denied. It is denied that Answering Defendants pushed
plaintiff face down on the stones of the parking lot, threw him
into a police cruiser. or caused any injuries and/or damages to
Plaintiff all alleged. By way of further answer, Answering
Defendants are advised by counsel and therefore aver that the
allegations of paragraph 45 of plaintiff's Amended complaint
constitute conclusions of law to which no response is required
pursuant to the pennsylvania Rules of Civil procedure and the same
are therefore deemed to be denied.
WHEREFORE. Answering Defendants respectfully request that this
Honorable Court dismiss plaintiff'S Amended complaint with
prejudice and enter judgment in their favor along with the
allowable costs of this action.
comIT 11
prrDftlOV.L UWLICTIOM O. 1DIQTIOII.t. DI8on...8
46. Answering Defendants incorporate by reference the
averments of paragraphs 1 through 45 of their Answer with New
Matter to plaintif f' s Amended complaint as if fully set forth
herein.
47. Denied. It is denied that Answering Defendants engaged
in any unlawful or intentional conduct and/or caused aevere
emotional distre.. to the pla:l.ntiff as alleged.
14
48. Denied. After reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the averments of paragraph 48 of
Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
49. Denied. It is denied that Answering Defendants' conduct
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, after reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 49
of Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
50. Denied. It is denied that Answering Defendants' conduct
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, after reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of. the averments of paragraph 50 of
Plaint;;'ff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
51. Denied. It is denied that Answering Defendants engaged
in any int.entional and/or reckless conduct or caused the Plaintiff
any emotional distress as alleged. By way of further answer,
Answering Oefendants are advised by counsel and therefore aver that
the remaining allegations of paragraph 51 of Plaintiff's Amended
15
Complaint constitute conclusions of law to which no response is
required pursuant to the Pennsylvania Rules of Civil Procedure and
the same are therefore deemed to be denied.
WHEREFORE, Answering Defendants respectfully request that this
Honorable Court dismiss Plaintiff's Amended Complaint with
prejudice and enter judgment in their favor along with the
allowable costs of this action.
COUNT III
VIOLATION 0. CIVIL RIaBTS
52. Answering Defendants incorporate by reference the
averments of paragraph 1 through 51 of their Answer with New Matter
to Plaintiff's Amended Complaint as if fully set forth at length
herein.
53. Denied as stated.
At all times material hereto,
Answering Defendants were acting in their capacity as police
officers employed by East PennsDoro Township or the Borough of West
Fairview.
54. Denied.
It is denied that Answering Defendants
individually and/or acting in concert deprived plaintiff of any of
his federally protected rights.
By way of further anower,
!
i
Answering Defendants are advised by counsel and therefore aver that
the allegations of paragraph 54 of Plaintiff's Amend8d Complaint
constitute conclusions of law to which no response is required
16
pursuant to the Pennsylvania Rules of Civil Procedure, and the same
are therefore deemed to be denied.
55. Denied. It is denied that Answering Defendants singled
out, identified, and used excessive force toward the Plaintiff as
alleged. By way of further answer, Answering Defendants are
advised by counsel and therefore aver that the allegations of
paragraph 55 of Plaint.iff's Amended Complaint. constitute
conclusions of law to which no response is required pursuant to the
Pennsylvania Rules of Civil Procedure, and the same are therefore
deemed to be denied.
56. Denied. It is denied that Answering Defendants acted
without probable cause to stop the Plaintiff's vehicle and it is
also denied that Answering Defendants used any excessive force upon
the Plaintiff or caused any physical injury or embarrassment to the
Plaintiff as alleged. By way of further answer, after reasonable
inv~stigation, Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments of paragraph 56 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
57. Denied as stated. It is admitted only that Answering
Defendant Shuey received citizen complaints that Plaintiff was
intoxicated. tr,at the vehicle he was operating, his vehicle in that
condition, and that plaintiff had a firearm in his possession. By
17
way of further answer, the investigatory stop of Plaintiff'S
vehicle was predicated upon a reasonable and articulable s\lspicion
and was warranted under the circumstances.
58. Denied. It is denied that Answering Defendants acted
without probable cause in effectuating the investigatory stop of
Plaintiff's vehicle. By way of further answer, at all times
material hereto, there were sufficient facts and circumstances to
warrant the investigatory stop of the Plaintiff's vehicle. To the
extent that further answer may be deemed appropriate, plaintiff
pled guilty to the charge of driving under the influence.
59. Denied. It ie denied that immediately upon effectuating
the investigatory stop, Officer French withdrew his side arm and
pointed it at the direction of Plaintiff's head from a location
three (3) feet away.
60. Denied. It is denied that another officer positioned
himself on the left side of Plaintiff's vehicle and pointed his
side arm at Plaintiff's head as alleged.
61. Denied. It is denied that Answering Defendant Bashore
was immediately in front of Plaintiff'e vehicle with his ehotgun
pointed at the front of Plaintiff's truck as alleged. By way of
further answer, it is denied that Officer Bashore had a shotgun in
his possession at any time during this incident.
62. Denied. It is denied that Answering Defendant French
ordered the Plaintiff to be pulled through the window and it is
18
also denied that Plaintiff was propelled four (4) feet forward and
onto the stone surface of the parking lot. An8wering Defendant
Bashore was the officer that directed that Plaintiff be removed
from the interior of the vehicle. Answering Defendant Cotton was
positioned near the windshield and front fender of Plaintiff' 8
vehicle and advised the other officers that Plaintiff had a handgun
on the front seat of the vehicle. By way of further answer,
de8pite being told repeatedly to keep his hands outside of the
truck window, Plaintiff continually pulled his hands back inside
the vehicle where the firearm was located. To the extent that
further answer may be deemed appropriate, as a direct and proximate
re8ult of Plaintiff's obdurate refusal to cooperate and out of
legitimate concerns for their safety, Answering Defendants Ba8hore
and Shuey, along with Defendant Shumaker pulled the Plaintiff
through the driver's side window.
63. Denied a8 stated. It is denied that Plaintiff was face
down on the stones of the parking lot and it is also denied that an
officer placed a knee in Plaintiff's back or that Plaintiff's arms
were forced backwards as alleged in paragraph 63 of Plaintiff'8
Amended Complaint. By way of further answer, while on the ground,
Plaintiff continued to struggle and resist the officers' attempts
to handcuff him.
64. Denied. It is denied that Plaintiff did not re8ist the
police officers in any manner as alleged and it i8 also denied that
19
Answering Defendants acted without provocation or probable cause or
that they used any excessive of physical force upon the Plaintiff.
By way of further answer, after reasonable investigation, Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 64
of Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
65. Denied. At all times material hereto, there was probable
cause to effectuate an investigatory stop of Plaintiff's vehicle
and to arrest Plaintiff for driving under the influence, resisting
arrest, and violation of the firearms statute. By way of further
answer, Plaintiff pled guilty to the charges of driving under the
influence and resisting arrest. To the extent that further answer
may be deemed appropriate, Answering Defendants are advised by
counsel and therefore aver that the allegations of paragraph 65 of
Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure, and the same are therefore deemed to be denied.
66. Denied. It is denied that Answering Defendants acted
without probable cause or used excessive force as alleged and it is
also denied that Answering Defendants had rifles in their
possession at any time during this incident. By way of further
answer, Answering Defendants are advised by counsel and therefore
aver that the allegations of paragraph 66 of Plaintiff's Amended
20
Complaint constitute conclusions of law to which no response is
required pursuant to the Pennsylvania Rules of Civil Procedure, and
the same are therefore deemed to be denied.
67. Denied. It is denied that Answering Defendants actions
violated Plaintiff's federally protected rights or violated
Pennsylvania law. By way of further answer, Answering Defendants
are advised by counsel and therefore aver that the allegations of
paragraph 67 of Plaintiff's Amended Complaint constitute
conclusions of law to which no response is required pursuant to the
Fennsylvania Rules of Civil Procedure, and the same are therefore
deemed to be denied.
68. Denied. It is denied that Answering Defendants detained
and/or arrested Plaintiff without probable cause and it is also
denied that there were insufficient facte or circumstances to
warrant an investigatory stop of Plaintiff's vehicle as alleged.
By way of further answer, Answering Defendants are advised by
counsel and therefore aver that the allegations of paragraph 68 of
Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure, and the same are therefore deemed to be denied.
To the extent that further answer may be deemed appropriate, at all
times material hereto, there was probable cause to effectuate an
investigatory stop of Plaintiff's vehicle and to arrest the
Plaintiff.
21
69. Denied. It is denied that Answering Defendants acted
without probable cause or without sufficient justification as
alleged and it is also denied that Answering Defendants deprived
Plaintiff of any federally protected rights. By way of further
answer, Answering Defendants are advised by counsel and therefore
aver that the allegations of paragraph 69 of Plaintiff's Amended
Complaint constitute conclusions of law to which no response is
required pursuant to the Pennsylvania Rules of Civil Procedure, and
the same are therefore deemed to be denied.
70. Denied. It is denied that Answering Defendants found no
evidence of violation of the motor vehicle code and it is also
denied that Answering Defendants used any excessive force upon the
Plaintiff as alleged. By way of further answer, after reasonable
investigation, Answering Defendants are without knowledge or
information sufficient to form a belief as to the truth of the
remaining averments of paragraph 70 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
71. Denied. It is denif!ld that. Answering Defendants acted
without probable cause and it is als.:> denied that Answering
Defendants exerted any excessive force upon the Plaintiff as
alleged. By way of further answer, Answering Defendants are
advised by counsel and therefore aver that the allegations of
paragraph 71 of Plaintiff's Amended Complaint constitute
22
conclusions of law to which no response is required pursuant to the
Pennsylvania Rules of Civil Procedure, and the same are therefore
deemed to be denied.
72. Denied. It is denied that Answering Defendants caused
any injuries and/or damages to the Plaintiff as alleged. By way of
further answer,
aftfilr reasonable
investigation,
Answering
Defendants are without knowledge or information sufficient to form
a belief as to the truth of the remaining averments of paragraph 72
of Plaintiff's Amended Complaint and the same are therefore denied
with strict proof demanded, if relevant.
73. Denied. It is denied that Answering Defendants' actions
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth of the
remaining averments of paragraph 73 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proot
demanded, if relevant.
I
I
j
\
I
74. Denied. It is denied that Answering Defendants' actions
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth of the
remaining averments of paragraph 74 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
23
"
, ,
75. Denied. It is denied that Answering Defendants' actions
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth of the
remaining averments of paragraph 75 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
76. Denied. It is denied that Answering Defendants' actions
caused any injuries and/or damages to the Plaintiff as alleged. By
way of further answer, Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth of the
remaining averments of paragraph 76 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
77. Denied. It is denied that Answering Defendants' actions
caused any injuries and/or damages to the plaintiff as alleged. By
way of further answer, Answering Defendants are without knowledge
or information sufficient to form a belief as to the truth of the
remaining averments of paragraph 77 of Plaintiff's Amended
Complaint and the same are therefore denied with strict proof
demanded, if relevant.
78. Denied. It is denied that Answering Defendants violated
Plaintiff' 8 federally protected rights and it is further denied
that Plaintiff is entitled to an award of attorney's fellS and
24
costs. By way of further answer, Answering Defendants are advised
by counsel and therefore aver that the allegations of paragraph 78
of Plaintiff's Amended Complaint constitute conclusions of law to
which no response is required pursuant to the Pennsylvania Rules of
Civil Procedure and the same are therefore deemed to be denied.
79. Denied. It is denied that Answering Defendants acted
without probable cause and/or without justification and it is
further denied that Answering Defendants deprived Plaintiff of his
civil rights au alleged. By way of further answer, Answering
Defendants are advised by counsel and therefore aver that the
allegations of raragraph 79 of Plaintiff's Amended Complaint
constitute conclusions of law to which no response is required
pursuant to the Pennsylvania Rules of Civil Procedure and the same
are therefore deemed to be denied.
80. Denied. It is denied that Answering Defendants' actions
violated clearly established law or deprived Plaintiff of any
federally protected rights as alleged. By way of further answer,
Answering Defendants are advised by counsel and therefore aver that
the allegations of paragraph 80 of Plaintiff's Amended Complaint
constitute conclusions of law to which no response is required
pursuant to the Pennsylvania Rules of Civil Procedure and the same
are therefore deemed to be denied.
81. Denied. It is denied that the elements of a proper
investigatory stop were not present or that the actions of
25
Answering Defendants in any way "shocked the conscience" or
violated any of Plaint.iff's Constitutional rights. By way of
further answer, Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 81 of Plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of Civil
Procedure and the same are therefore deemed to be denied.
82. Denied. It is denied that Answering Defendants acted in
bad faith, without probable cauee or violated any of Plaintiff's
Constitutional rights as alleged. By way of further answer,
Answering Defendants are advised by counsel and therefore aver that
the allegations of paxagraph 82 of Plaintiff's Amended Complaint
constitute conclusions of law to which no response is required
pursuant to the Pennsylvania Rules of Civil Procedure and the same
are therefore deemed to be denied.
83-88. The averments of 83 through 88 of Plaintiff's Amended
Complaint are denied in their entirety. By way of further answer,
the claims against Defendants. East Pennsboro Township, Borough of
West Fairview, as well as Defendant, Borough of Wormleysburg have
been dismissed with prejudice pursuant to Judge Sheely's Opinion
and Order dated Sept6mber 14, 1995. To the extent that further
answer may be deemed appropriate, any allegations against Answering
Defendants, either expressed or implied, are denied in their
entirety with strict proof demanded if relevant.
26
89. Denied. It is denied that Arlswering Defendants acted
without probable cause and without sufficient justification to
effectuate the investigatory stop of Plaintiff's vehicle. By way
of further answer, Answering Defendants are advised by counsel and
therefore aver that the allegations of paragraph 89 of Plaintiff's
Amended Complaint constitute conclusions of law to which no
response is required pursuant to the Pennsylvania Rules of Civil
Procedure and the same are therefore deemed to be denied. To the
extent that further answer may be deemed appropriate, at all times
material hereto, there were sufficient facts and circumstances to
warrant the investigatory stop of Plaintiff's vehicle and there
existed probable cause to support Plaintiff's arrest.
90. Denied. It is denied that Answering Defendants used any
excessive and/or unnecessary force to effectuate the lnvestigatory
stop and arrest of the Plaintiff. By way of further answer,
Answering Defendants are advised by counsel and therefore aver that
the allegations of paragraph 90 of Plainti.ff's Amended Complaint
constitute conclusions of law to which no response is required
pureuant to the Pennsylvania Rules of civil Procedure and the same
are therefore deemed to be denied.
91. Denied. It is denied that Answering Defendants deprived
Plaintiff of any federally protected rights and it is also denied
that Answering Defendante are in any way liable to Plaintiff as
alleged. 8y way of further answer, Answering Defendants are
27
advised by counsel and therefore aver that the allegations of
paragraph 91 of Plaintiff's Amended Complaint constitute
conclusions of law to which no response is required pursuant to the
pennsylvania Rules of Civil Procedure and the same are therefore
deemed to be denied.
92. Denied. It is denied that any excessive force was
utilized by the Answering Defendants or that Plaintiff is entitled
to an award of punitive damages. By way of further answer,
Answering Defendants are advised by counsel and therefore aver that
the allegations of paragraph 92 of Plaintiff's Amended Complaint
constitute conclusions of law to which no response is required
pursuant to the Pennsylvania Rules of Civil Procedure and the same
are therefore deemed to be denied.
WHEREFORE, Answering Defendants respectfully request that this
Honorable Court dismiss Plaintiff's Amended Complaint with
prejudice and enter judgment in their favor along with the
allowable costs of this action.
.... DTT..
1. Plaintiff's Amended Complaint and each of its counts
fails to state a claim or cause of action upon which relief can be
granted.
2. At no time material hereto was Plaintiff deprived of any
of his federally protected rights.
28
3. Plaintiff has pled guilty to driving under the influence
and resisting arrest and Plaintiff is collaterally estopped from
relitigating the lawfulness of his arrest.
4. Any force used by Answering Defendants with respect to
Plaintiff was lawful, reasonable, necessary, and privileged.
5. Any injuries sustained by Plaintiff, if proven, were
caused solely and proximately by Plaintiff's own conduct, which
conduct was unlawful, intentional, willful, wanton, and reckless.
6. Plaintiff's Amended Complaint fails to state a claim or
cause of action for violation of Plaintiff's substantive or
procedural due process rights upon which relief can be granted.
7. At all times material hereto, there was a reasonable and
articulable suspicion and/or probable cause to effectuate the
investigatory stop of the Plaintiff and to arrest the Plaintiff on
the criminal charges.
8. Answering Defendants enjoy a privilege under Pennsylvania
law to use force or the threat of force to effectuate a lawful
investigatory stop.
9. Plaintiff's claim for assault and battery under state law
is barred by the doctrine of collateral estoppel.
10. The Pennsylvania Supreme Court has never recognized a
cause of action for intentJ,onal infliction of emotional distress
and Count II of Plaintiff's Amended Complaint fails to state a
claim upon which relief can be granted.
29
11. Bven if the tort of intentional infliction of emotional
distress is recognized in Pennsylvania, which is denied, Plaintiff
has failed to plead the requisite medical treatment and/or physical
manifestation of the emotional distress to state a cognizable
claim.
12. Answering Defendants are immune from liability as a
matter of law on Counte I and II of Plaintiff's Amended Complaint
pursuant to the provisions of the Pennsylvania Political
subdivision Tort Claims Act, 42 Pa.C.S. 58541 et. seq.
13. Answering Defendants actions do not riae to the level of
a crime, fraud, actual malice, or willful misconduct.
14. Answering Defendants plead entitlement to qualified
immunity, which has been interpreted by the federal courts to be a
right not to go to trial and a right to be free of the burdens of
this litigation.
15. Plaintiff's Amended Complaint fails to plead any facts
inconsistent with Answering Defendants' good faith immunity under
federal law.
16. Plaintiff has not pled and cannot prove any circumstances
which justify an award of punitive damages against Answering
Defendants.
17. Plaintiff's claims under Pennsylvania state law are
barred for failing to provide proper and timely statutory notice in
accordance with 42 Pa.C.S.A. 55522.
30
VBRIJ'ICATIOlf
The undersigned hereby verifies that the facts set forth in
the toregoing Defendants, Shuey, Cotton, Bashore, French, and
Spencer's Answer with New Matter to Plaintiff's Amended Complaint
are based upon information which has been furnished to counsel by
me and information which has been gathered by counsel in the
preparation of this lawsuit.
The language of the Defendants,
Shuey, Cotton, Bashore, French, and Spencer's Answer with New
Matter to Plaintiff's Amended Complaint is that of counsel and not
my own.
I have read the Defendants, Shuey, Cotton, Bashore,
French, and Spencer's Answer with New Matter to Plaintiff's Amended
Complaint and to the extent that the Defendants, Shuey, Cotton,
Bashore, French, and Spencer's Answer with New Matter to
Plaintiff's Amended Complaint is based upon information which I
have given to counsel, it is true and correct to the best of my
knowledge, information and belief. To the extent that the contents
of the Defendants, Shuey, Cotton, Bashore, French, and Spencer's
Answer with New Matter to Plaintiff'a Amended Complaint is that of
counsel, I have relied upon my counsel in making this verification.
The undersigned also understands that the statements therein are
made subject to the penalties of 18 Pa. C.S. Section 4904, relating
to unsworn falsification to authorities.
Date:
/Dh , j,.r
ok~. t111~f1
o car Michael Cotton
By:
VBRIPICA'1':IOH
The undersigned hereby verifies that the facts set forth in
the foregoing Defendants, Shuey, Cotton, Bashore, French, and
Spencer's Answer with New Matter to Plaintiff's Amended Complaint
are based upon information which has been furnished to counsel by
me and information which has been gathered by counsel in the
preparation of this lawsuit. The language of the Defendants,
Shuey, Cotton, Bashore, French, and Spencer's Answer with New
Matter to Plaintiff's Amended Complaint is that of counsel and not
my own. I have read the Defendants, Shuey, Cotton, Bashore,
French, and Spencer's Answer with New Matter to Plaintiff's Amended
Complaint and to the extent that the Defendants, Shuey, Cotton,
Bashore, French, and Spencer's Answer with New Matter to
Plaintiff's Amended Complaint is based upon information which I
have given to counsel, it is true and correct to the best of my
knowledge, information and belief. To the extent that the contents
of the Defendants, Shuey, Cotton, Bashore, French, and Spencer's
Answer with New Matter to Plaintiff's Amended Complaint is that of
counsel, I have relied upon my counsel in maki.ng this verification.
The undersigned also understands that the statements therein are
made subject to the penalties of 18 Pa. C.S. Section 4904, relating
to unsworn falsification to authorities.
Date I bf/./..;2 l'i9r
~
By:
j
,
YBRIFICATION
The undersigned hereby verifies that the facts set forth in
the foregoing Defendants, Shuey, Cotton, Bashore, French, and
Spencer's Answer with New Matter to Plaintiff's Amended Complaint
are based upon information which has been furnished to counsel by
me and information which has been gathered by counsel in the
preparation of this lawsuit. The language of the Defendants,
Shuey, Cotton, Bashore, French, and Spencer's Answer with New
Matter to Plaintiff's Amended Complaint is that of counsel and not
my own. I have read the Oefendants, Shuey, Cotton, Bashore,
French, and spencer' 8 Answer wi th New Mat ter to Plaint iff's Amended
Complaint and to the extent that the Defendants, Shuey, Cotton,
Bashore, French, and Spencer's Answer with New Matter to
Plaintiff's Amended Complaint is based upon information which I
have given to counsel, it i8 true and correct to the best of my
knowledge, information and belief. To the extent that the contents
of the Defendants, Shuey, Cotton, Bashore, French, and Spencer's
Answer with New Matter to Plaintiff's Amended Complaint is that of
counsel, I have ~elied upon my counsel in making this verification.
The undersigned also understands that the statements therein are
made subject to the penalties of 18 Pa. C.S. Section 4904, relating
to unsworn falsification to authorities.
Date: *--___
Illy:
"
"
RUSSELL C. FICKES,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No, 94-6040
vs.
EAST PF.NNS80RO TOWNSHIP,
BOROUGH OF WORMLEYSBURG, CIVIL ACTION - LAW
BOROUGH OF WEST FAIRVIEW, and
PATROLMAN MATTHEW T. SHUEY,
OFFICER MICHAEL COTTON,
PATROLMAN TODD BASHORE,
OFFICER ROBERT SHUMAKER, JURY TRIAL DEMANDED
PATROLMAN JAMES FRENCH, and
OFFICER SPENCER,
Defendants
REPLY TO NEW MATTER FILBD BY DBPENDANTS.
SHUEY. CO'J."l'ON . BASHORE, FRENCH. AND SPENCU
AND NOW, this C>.,~ day of November, 1995, comes the
Plaintiff, Russell C, Fickes, by his Attorney, Arthur K. Oils,
Esquire, and respectfully replies to the New Matter as follows:
1, Paragraph One (1) of Defendants I New Matter is denied.
It is denied that the Plaintiff' s Amended Complaint and the
Counts fail
to state a claim or cause of action upon which
relief can be granted, This allegation has been raised by way
of Preliminary Objections and said Preliminary Objections have
been heard and decided by the Court of Common Pleas of Cumberland
County.
Proof is demanded for the allegation contained in
Paragraph One (1), that the Amended Complaint fails to state
a claim or cause of action upon which relief can be granted,
as said allegation is within the exclusive knowledge and control
of the Defendants, and Plaintiff is without knowledge of the
same.
,"
,,'
....
-
.,
(5), as said allegations are within the exclusive knowledge
and control of the Defendants, and Plaintitf is without knowledge
ot the same.
6. Paragraph Six (6) is denied. It is denied that the
Plainti ff' s Amended Complaint fai Is to state a claim or cause
ot action for violation of Plaintiff's substantive and/or
procedural due process rights. Proof is demanded tor this
allegation as the Defendants had previously raised this
allegation by way of Preliminary Objections, and said Preliminary
Objections have been resolved by Your Honorable Court.
7. Paragraph Seven (7) is denied. It is denied that there
was a reasonable and articulable suspicion and/or probable cause
tor the Defendants to conduct an investigatory stop of the
Plaintiff's vehicle and to arrest the Plaintiff. Proof is
demanded for the allegations contained in Paragraph Seven (7),
as said allegations are within the exclusive knowledge and
control of the Defendants, and Plaintiff is without knowledge
of the same.
8. Paragraph Eight 18) is denied. It is denied that the
Defendants enjoy a privilege under Pennsylvania law to use
force or the threat of force to effectuate a lawful inv0stigatory
stop. Proof is demanded for this allegation, as said allegation
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i. within the exclusive knowledge and control of the Defendant.,
and plaintiff, after reasonable investigation, i. without
knowledge of tho same,
9. Paragraph Nine (9) is denied. It is denied that the
Plaintiff's claim for assault and battery under state law i.
barred by the doctrine of collateral estoppel, and proof is
demanded for this allegation, as said allegation is within the
exclusive knowledge and control of che Defendants, and plaintiff,
after reasonable investigation, is without knowledge of the
same. Further, Defendants have raised this allegation through
Preliminary Objections, and said preliminary Objections have
previously been resolved by Your Honorable Court,
10 Paragraph Ten (10) is denied, It is denied that the
Plaintiff's Amended complaint, Count II, fails to state a claim
upon which relief can be granted, and proof is demanded for
this allegation, as said allegation is within the exclusive
knowledge and control of the oefendants, and Plaintiff, after
reasonable investigation, is without knowledge of the same.
By way of further answer, it is averred that the Oefendants
had previously raised the objection to a cause of action for
intentional infliction of emotional distress through Preliminary
Objections, and said Preliminary Objections have been resolved
by Your Honorable Court.
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11. Paragraph Eleven (11) is denied. It is denied that the
Plaintiff has failed to plead the requisite medical treatment
and/or phYSical manifestation of the emotional distress to state
a cognizable claim of intentional infliction of emotional
distress, and proof is demanded for this allegation, as said
allegation is within the exclusive knowledge and control of
the Defendants, and Plaintiff, after reasonable investigation,
is wi thout knowledge of the same. By way of further answer,
it is averred that the Defendants had preViously objected to
the intentional infliction of emotional distress claim through
Preliminary Objections and said Preliminary Objections have
preViously been resolved by Your Honorable Court,
12. Paragraph Twelve ( 12) is denied, It is denied that the
Defendants are immune from liability as a matter ot law. P'ioof
is demanded for this allegation, as said allegation is within
the exclusive knowledge and control of the Defendants, and
Plaintiff, after reasonable investigation, is without knowledge
of the same, By way of further answer, it is averred the
Defendants have previously alleged immunity from liability
through Preliminary Objections, and said Preliminary Objections
have been resolved by Your Honorable Court,
13. Paragraph Thirteen (13) is denied. It is denied that the
Defendants' actions do not rise to the level of a crime, traud,
-5-
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16. Paragraph Sixteen (16) is denied.
It is denied that the
Plaintiff has not pled and cannot prove any circumstances which
justity an award of punitive damages against the Defendants.
Proof is demanded for this allegation.
17. Paragraph Seventeen (17) is denied.
It is denied that
the Plaintiff's claim is barred for tailing to provide proper
and timely statutory notice, and proof is demanded for this
allegation, as said allegation is within the exclusive knowledge
and control of the Defendants, and Plaintiff, after reasonable
investigation, is without knowledge of the same.
18. Paragraph Eighteen (18) is denied.
It is denied that the
Plainti ff' s claim for state tort law damages are barred and/or
limited pursuant to the prOVisions of the Political Subdivisions
Tort Claims Act, and proof is demanded for this allegation,
as said al16gation is within the exclusive knowledge and control
of the Defendants, and Plaintiff, after reasonable investigation,
is without knowledge of the same.
By way of further answer,
it is averred that the Detendants have previously objected to
the state tort law damages by way of Preliminary ObjElctions,
and said Preliminary Objections have been resolved by Your
Honorable Court.
19. Paragraph Nineteen (19) is denied.
It is denied that the
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.
,
RU881LL C. PICXIS,
Plaintiff
IN THI COURT OP COMMON PLIAB OP
CUMBIRLAND COUNTY, PINNSYLVANIA
V.
lAST PINNSBORO TOWNSHIP,
BOROUGH OP WORMLBYSBURG,
BOROUGH OP nST PAl RVI IW ,
PATROLMAN MATTHIW T, SHUIY,
OPPICIR MICHABL COTTON,
PATROLMAN TODD BASHORE,
OPPICIR ROBIRT SHUMAXIR,
PATROLMAN JAMBS FRENCH, and
OPPICIR SPINCIR,
Detendants
r. o. D...IIDAJI'J!' U PULrMr.UI o.JJlc~rOll
NO. 94-6040 CIVIL TIRM
CIVIL ACTION - LAW
TO PLArftu.'. AD.D.D CClIIJILArft
...0.. ...~L~. P.J. ~ OLaR. 3.
tq- ou..
AND NOW, this ~ day ot SEPTEMBER, 1995, after
careful coneideration of Defendant's preliminary objections and
for the reaeons etated in the aocompanying Opinion, it is ORDERED
and DIRECTED as tollowe.
1. The preliminary objeotione in the nature ot a demurrer
on behalf of Defendant polioe offioere to Count I (assault and
battery), Count II (intentional infliction of emotional
distress), and Count III (violation of civil rights under 42
U.S.C. Seotion 1983) on the ground of governmental and offioial
i.-unity are DENIED, pureuant to the Political Subdivieion Tort
Clai.s Act.
2, The preliminary objeotions in the nature of a de.urrer
on behalf of Defendant police offioers to Count I (assault and
battery), Count II (intentional infliotion of eactional
RUSSILL =. PICKIS,
Plaintiff
IN THI COURT OP COMMON PLIAS OP
CUMBIRLAND COUNTY, PINNSYLVAHIA
V.
lAST PINNSBORO TOWNSHIP, NO. 94-6040 CIVIL TIRM
BOROUGH OP WORMLIYSBURG,
BOROUGH OF WUT rAII'VIBW,
PATROLMAN MATTHIW T. SHUIY,
OPPICIR MICHABL COTTON,
PATROLMAN TODD BASHOR!,
OPPICIR ROBIRT SHUMAKIR,
PATROLMAN JAMBS FRlNCH, and
OPPICIR SPINCIR, CIVIL ACTION - LAW
Defendant.
X. H. D...IIDU'r" '..LIMIlIAJll' OBJIlC'fICIII
'lO .Lalnl"" AMII.D.D CClIIPLAXft
8IPO.. ...ILI. P.J. .-0 ~.. J.
0.1.10. a.D OlD.. 0' coua'f1
Thi. present action ari.e. out of .n incident which occurred
on March 23, 1993, in which Russell C, Ficke., the Plaintiff, wa.
stopped by police otficer. from la.t Pennsboro Township, Borough
~t We.t F.irview, and Borough of Wormleysburg. Th. Detend.nt.
fil.d the tollowing Joint Preliminary Objection. to the
Plaintitt's Amended Complaint. (I). demurrer on beh.lf of
Def.nd.nts, Shuey, Cotton, Bashore, Shumaker, French, .nd Spencer
as to Pl.intift's claims for as.ault and battery, intentional
infliotion of emotion.l di.tr.ss, violation of oivil rights under
42 U.S.C. Section 1983, and punitive damage., (2) a demurr.r on
beh.lf of Detendant'., East Pennsboro Town.hip, Borough of W..t
'.irvi.w, and Borough of Wormleysburg a. to violation of civil
right. under 42 U.S.C. Section 1983 cl.im. or in the altern.tive
a Motion tor A More Specific Pleading.
c....
1 Judge Oler did not participate in the di.po.ition of thi.
NO. 94-6040 CIVIL TBRH
PACTS
The Plaintiff commenced this civil action by filing a Writ
of Summone on or about October 20, 1994, against Detendants, la.t
Penn.boro Township, Borough of West Pairview, Borough of
Wormley.burg, and Patrolman Matthew T, Shuey. Pursuant to . rule
to tile . Complaint, on December 6, 1994, the Plaintitf filed.
C~l.int containing four count. and adding Officer Michael J.
Cotton, Patrolman Todd Ba.hore, Officer Robert Shumaker,
Patrolman Jame. French, and Officer Spencer as defendants. The
Defendant. filed Preliminary Objections to Plaintitf'. Complaint
in the nature of a demurrer or, in the alternative, a Motion tor
· More Specific Pleading. Prior to Oral Argument, counsel
entered a Stipulation whereby Defendants' Preliminary Objections
were withdrawn and the Plaintitt wa. given an opportunity to file
an amended complaint.
On or about February 17, 1995, Plaintiff'. coun.el served
upon all defense coun.el an Amended Complaint which outlined
claim. for a.eault and battery (Count I), intentional intliction
of emotional di.tres. (Count II), a claim pur.uant to 42 U.S,C.
Section 1983 tor alleged violation. of hi. Fourth Amendment
Right. and hi. procedural and sub.tantive due process right.
(Count III), and a demand for punitive damages,
The fact. a. they are .et torth in the Plaintiff'. Caaplaint
are as follow., On March 23, 1993, at approximately 8130 p.m,.
the Plaintift wa. on hi. way to pick up a triend at Dumphy'.
2
RO. g4-6040 CIVIL TIRH
Tavern and R..taurant after a day of fishing. Be had in hi.
po.....ion a 380 Walth.r handgun tor which he was duly licen.ed
and had a valid .port.man'. tirearm permit i..ued from the Tioga
County Sheriff on or about 1984. (Amended Complaint at 4, 5).
We.t Fairvi.w police receiv.d a r.port trom a citizen who
indicated that there wa. an individual who was po..e..ing a
firearm and wa. po..ibly intoxicated. (Amend.d Complaint at 5).
Various ofticer. in the vicinity tocu.ed on the Plaintiff'a Ford
pick-up truck. Although the ottic.r. did not detect any erratic
driving, one officer did indicat. that he felt there wa. an
abrupt turn onto Hummel Str.et in the Borough of Ba.t P.nn.boro
Townahip. 1.ll,
The Plaintitt aver. that he wa. backing up hia truck in a
proper and rea.onable mann.r in Dumphy'. parking lot when a
police crui..r poaition.d its light. .hining into the driver's
.ide in front of the truck, (Amended Complaint at 6). The
polic. attempt.d to communicate via the public addre.. .yatem,
but did not make them.elves cl.ar. 1.ll. Three other police
crui.era arriv.d on the .c.ne .urr.:lunding the Plaintiff'. pick-up
truck and order.d the Plaintiff to put hi. hand. on the driver'.
aide window, to which request he complied. 1.ll. Ofticer French
exited hi. cruiaer and withdrew hia .ide.rm, pointing it three
feet away from the right .ide of the Pl.intitt'. head. !d.
Another officer po.itioned hi.aelf on the Pla!ntift'. left aide
three teet away fro. hi. he.d, (Amend.d Complaint at 7).
J
HO. 94-6040 CIVIL TBRM
Officer Todd Ba.hore was immediat.ly in front of the Plaintiff'.
truck, approximately eight teet away. IdL Otficer French
ordered that the Plaintiff be pulled through his driv.r's sid.
window while the gla.. was up approximately six or eight inches.
~ Shattering the glas. and pulling the hands, arm., back of
the hair, and clothing of the Plaintift, the police propelled him
four feet torward onto the stone surface ot the parking lot. IdL
One ofticer placed a knee in the Plaintiff'. back and forced hi.
arm. backwards, ~
The Plaint.iff avers that he screamed that his arm wa.
broken, but the police handout fed' him with his arm. behind his
back and threw him into the back of the cruiser where he stayed
until he wa. taken to the hospital. (Amended Complaint at 8).
The ofticers refused the Plaintiff'. request to be put in an
upright position, ~ As a result of the conduct, the Plaintift
fractured his arm and elbow, incurred lacerations on the face,
fractured three lett ribs, and had black and blue marks from the
buttocks to the foot, ~ The Plaintitf avers that he was
required to .ee an orthopedic surgeon where he received three
operations and phy.ical therapy session., has suffered permanent
disability to his right arm, (Amended Complaint at lv). He
further avers that he experiences pain, diffioulty sleeping,
mental anxiety, extreme emotional up.et, frustration, and
humiliation. (Amended Complaint at 11).
DISCUSSION
4
NO. 94-6040 CIVIL TBRM
When considering preliminary objections in the nature of a
demurrer, "the Court must accept as true all well-pleaded
material facts in the complaint as well as all reasonable
inferences that may be drawn from those tacts." O'Brien v.
TownshiD ot RalDho, 166 Pa.Commow. 337, 340, 646 A.2d 663, 665
(1994). Conclusions of law and unjustified inferences are not
admitted by the pleading. GreenSDan v. U,S, Automobile
Association, 324 Pa.Super 315, 319, 471 A,2d 956, 959 (1994).
The role ot the trial court i. "to determine whether or not the
facts pleaded are legally sufficient to permit the action to
continue." Coolev v. East Norriton Townsh.!.,g, 79 Pa.Commow. 11.
13 (n,3), 466 A.2d 765, 767 n, 3(1993). According to the
Pennsylvania Superior Court, a preliminary objection in the
nature ot a demurrer should only be granted in cases that are
free from doubt. Britt v. Chestnut Hill Colleae, 429 Pa.Super.
263, 271, 632 A,2d 557, 560 (1993).
Because Pennsylvania is a fact-pleading state, "A complaint
must not only give the defendant notice of what the plaintiff's
claim is and the grounds upon which it x'est., but it must also
tormulate the issues by summarizing those facts essential to
support the claim," AlDha Tau Omeaa Fraternitv v. University of
Pennsvlvani~, 318 Pa,Super. 293, 299, 464 A.2d 1349, 1352 (1983).
On its own motion, or .s an alternative to granting a demurrer, a
trial court may permit or require the amendment of a pleading
where the complaint is not inherently unsound but only
5
HO. 94-6040 CIVIL TERM
incomplete. Motheral v. Burkhart, 400 Pa,Super. 408, 583 A.2d
1180 (1990). Maddux v. Pennsvlvania DeDartment ot Aariculture,
35 Pa.Commow. 386, 386 A,2d 620 (1978). The Pennsylvania Supre..
Court has held that "the right to amend should not be withheld
where there is some reasonable poeeibility that amendment oan be
acoomplished succe.sfully." Otto v, American Mut. Ins, Co., 482
Pa. 202, 205, 393 A,2d 450, 451 (1978).
I. Governm-ntal and Official Immunitv
Defendants, Shuey, Cotton, Baehore, Shumaker, Frenoh, and
Spencer rai.e preliminary objections in the nature of a demurrer
that as employees of a looal agency within the meaning of the
Politioal Subdivision Tort Claims Act, 42 Pa.C.S.A. Section 8541,
et. sea., they are cloaked with a general legi.lative grant of
i..unity, The Defendant polioe officere claim that because their
conduct does not tall within one of the eight exception. of 42
Pa.C.S.A, 8542(b) or rise to the level of a crime, actual fraud,
aotual malice, or willful misconduct, the claim. against the.
should be dismiased,~
The Political Subdivi.ion Tort Claims Aot state. in part a.
tollowsl
J We need not decide whether rai.ing this defense of
i..unity i. proper in the form of a preliminary objection, as
oppo.ed to filing thi. defense in a re.ponsive pleading under the
heading "Hew Matter" becauee the Plaintiff ha. not raised an
objeotion to the Defendants' Preliminary Objeotions. The
penn.ylvania Co.-onwealth Court hes ruled that "preli~narr
objeotion. raising the i.-unity defense may be oon.idered f the
~p~~.in9 party waives the procedural deteot," Wurth Y. City of
~, 136 Pa.Co.-ow. 629, 638, 584 A.2d 403, 407 (1990).
6
NO. 94-6040 CIVIL TBRH
An employee of a local agenoy i. liable tor
civil damages on account of an injury to a
person or property caused by aot. of the
employee which are within the scope ot his
office or duties only to the .... extent as
hi. employing local agency and subject to the
limitations imposed by this .ubchapter.
42 Pa.C.S.A, Section 8545, According to Section. 8541 mnd 8542,
a local agency is generally immune from suit, but may be held
liable tor damage. on account of an injury to a person or
property due to negligence with respect to eight specific
exoeptionsl vehicle liabilitYI care, oustody or control of
personal property I real property I trees, traffic controls and
street lightingl utility service tacilitiesl etreetsl sidewalks I
care, cu.tody or control of animal., 42 Pa.C.S,A. Section 8542.
Becau.e the conduct in thi. present ca.e clearly does not tall
into one ot the.e eight exceptions, in order to determine whether
the police officer. may be held liable for the proposed cau.es of
action, we must examine Section 8550,
According to Section 85501
In any action against a local agency or
employee thereof for damages on account of an
injury cau.ed by the aot of the employee in
which it is judicially determined that the
act of the employee caused the injury and
that such act constituted a orime, actual
fraud, actual malice or willful misconduct,
the provisions of section 8545 (relating to
ofticial liability gen.rally) , . , shall not
apply,
42 Pa.C.S.A, Section 8550, Willful Misconduct means conduct
whereby the actor de.ired to bring about the result that followed
or at lea.t wae aware that it was substantially certain to follow
7
NO. 94-6040 CIVIL TBRM
10 that luch de.ire can be implied. Kina v. Breach, 115
Pa.Commow. 355, 540 A,2d 976 (1988), In Lancie v. Gile., 132
P..Commow. 255, 572 A,2d 827 (1990), a police ofticer who was
.ued tor intentional intliction of emotional dist~e.. wal not
protected by ofticial immunity. The Pennlylvania Commonwealth
Court held that willful mi.conduct is .ynonymoul with intentional
tort, official immunity cannot protect police officer. trom an
.ction alleging an intentional tort. ~ Kina v. Breach, 115
Pa.Commow. 355, 540 A,2d 976 (1988), Defendant police officer.,
therefore, are not protected by governmental or official immunity
with relpect to the cau.e. of action of a..ault and battery or
intentional intliction of emotional diltrel.,
A. for th~ claim. against the police officer. alleging a
violation of civil right. under 42 U,S.C, Section 1983, state
court. cannot di.mi.. Section 1983 actionl because the otticial'.
conduct i. immune under .tate .overeign immunity. Ho~lett v.
B2a1, 496 U.S. 356 (1990). Heinlv v, Commonwealth, 153
Pa.Commow. 599, 621 A,2d 1212 (1993). Pursuant to the.e
holding., Count III of the Plaintiff'. Amended Complaint i. not
barred by official or governmental immunity,
II. As.ault and Batterv
Defendant. Shuey, Cotton, 8a.hore, Shumaker, French, and
Spencer have filed a preliminary objection in the nature of a
demurrer to Count I of the Plaintiff'. Amended Complaint averring
....ult and battery, The Defendant police officer. claim the
8
NO. 94-6040 CIVIL TERM
count tails to state a claim or cauae of action upon which relief
can be granted since the complaint does not allege any tacts tram
which a reasonable juror could infer that the individual
officer.' actions constituted an abuae ot a privilege to use
torce under 18 Pa,C.S,A. Section 508(a).
Although under 18 Pa.C,S,A. Section 508, a polic~ otficer is
justitied in the use of force neceasary to atfect arrest,
justification ia an atfirmative defenae which may be raised in an
anawer to the complaint. 42 Pa,C.S,A, 1030. Therefore, whether
or not the Defendant police officers were juatitied in the use ot
torce againat the Plaintiff ia not an isaue we muat resolve in
order to determine if the Plaintift has stated a claim or cauae
ot action for asaault and battery upon which relief can be
granted.
In order to determine whether a claim haa been stated, we
muat examine the elements of the underlying tort. The tort of
assault exists when the defendant'. acts place the peraon in
reaaonable apprehenaion of phyaical injury or oftensive contact.
General Machine CorD. v. Feldman, 352 Pa.Super 180, 507 A.2d 831
(1986). Battery consiats of an intent to cause otfenaive contact
and resultant harmful contact, Field v. Philadelphia Blectric
~, 388 Pa , Super , 400, 565 A,2d 1170, A detendant must only
intend the contact, not the resulting harmtul consequences. An
offensive contact 1. one which "otfends a reasonable sense of
peraonal dignity," Restatement (Second) of Torts, 519 (1965),
9
HO. 94-6040 CIVIL TBRM
A. to the claim ot a..ault, the Plaintiff in hi. ...nded
c~laint avere that the Defendant police oftic.r. placed ht. in
t.mediate apprehen.ion of harmful contact when they "po.itioned
th....lv.. with their weapons drawn pointing directly at the head
of the Plaintiff, all with the threat of torce of eminent peril
of forceful retaliation if the otficer.' commands were not
tollow.d." (Amended Complaint at 11, 12). The Plaintitf turther
aver. that .8uch acts were uncon.ented to, unprivileged, and in
no way p.rmitted under the law. ot the Commonwealth of
penn.ylvania." (Amended Complaint at 12). Accepting a. true
the.e material facts a. well as all r.asonable infer.nce. that
may be drawn tram them, the Plaintift's Amended Complaint aver.
tactl showing that the Detendant.' act. placed the Plaintitt in
rea.onable apprehension of phy.ical injury or offen.iv. contact.
Therefore, the Plaintitf adequately state. a claim of cau.e of
action for assault upon which relief can be granted.
To .upport the caule of action of battery, the Plaintiff
averl the following fact..
43. The Defendants, the variou. police
officerl, intentionally and offen.ivlly
touched the Plaintiff, when they physically
removed him trom hi. truck through the
driver'. side window, when they held him tace
down on the parking lot, pu.hing hi. fac.
into the .tone., holding all of hi.
.xtr.mitie., handcutfing him, throwing him
into the back of a police cruiser face down,
all of these acts were in no way consented to
by the Plaintiff . . .
44. The D.f.ndants, the various police
oftic.rs, intentionally and offen.iv.ly
10
NO. 94-6040 CIVIL TBRM
touched Plaintift when they tractured his
right arm and elbow, and tractured three (3)
ribs, and placed a knee in the back of the
Plaintitf while he was face down on the
.tone. in the parking lot . . .
(Amended Complaint at 13). The Plaintitt clearly avers tact.
.howing oftensive contact and resultant harmtul contact,
th.refore, the Plaintift'. Amended Complaint .tate. a claim or
cau.e of action for battery upon which relief can be granted.
III. Intentional Infliction of Bmotional Di.tr...
The Defendant police otficers have al.o tiled a preliminary
objection in the nature of a demurrer to Count II ot the
Plaintiff's Amended Complaint which asserts a claim ot
intentional infliction of emotional distres. against the
individual otticer.. The officers claim that the Plaintiff ha.
failed to allege the requisite extreme or outrageous conduct, and
the Plaintitf tail. to allege that he sought and received any
..dical treatment for his alleged emotional distr.ss, therefore,
the Plaintiff fails to state a claim or cau.e ot action upon
which relief can be granted.
The tort ot intentional infliction of emotional distre.. is
outlined in the Restatement (Second) ot Tort.. "One who by
extre.. or outrageQUs conduct intentionally or r.cklessly cause.
.ever. emotional distress to another is subject to liability for
.uch emotional dietress, and if bodily harm to the other re.ult.
frea it, for .uch bodily harm." Restate.ent (Second) of Tort.
11
NO. 94-6040 CIVIL TBRM
546 (a) (1965),) Outrag.ou. conduct is "so outrageous in
charact.r and so extr.me in degr.e, a. to go b.yond all po.sibl.
bounds of dec.ncy and be regard.d a. .0 atrociou. and utterly
intol.rabl. in a civiliz.d community." Cloverleaf Def. Inc. v.
Horizon Fin. F. A" 347 Pa,Super, 75, 85, 500 A.2d 163, 169
(1985). The Restatem.nt elaborates on certain .pecial .ituation.
wh.r. thi. conduct may be found I
The extreme and outrag.ou. character of the
conduct mar ari.e trom an ~buse by the actor
of a po.it on, or a relation with the other,
which gives him actual or apparent authority
over the other, or power to affect hi.
interest. , . . In particular police officers
. . , have been liable for extreme abu.e of
their poeition. Even in such ca.es, however,
the actor has not been liable for mer.
in.ult., indignitie., or annoyances that are
not extreme or outrageou.,
R..tatement (Second) of Tort. 546 comment e (1965). The court
mu.t determine initially wheth.r the Detendant'. conduct i. so
.xtr.m. and outrageous a. to permit recoverYl "[w]here reasonable
person. may differ, it i. for the jury to determine wheth.r the
conduct i. .ufficiently extreme and outrageous .0 a. to result in
liability." Motheral v. Burkhart, 400 Pa,Super. 408, 423, 583
) Although the Pennsylvania Supreme Court ha. "[left] to
anoth.r day, the queetion of the validity of s.ction 46 of this
Co.-onw.alth," Kazat.ky v. Kina David M.morial Park, 515 Pa.
183, 185, 527 A.2d 988 (1987), the Pennsylvania Sup.rior Court
ha. r.cognized the existence of intentional infliction of
e~tional di.tr.... See Field v. PhiladelDhia El.ctric Co., 388
pa.Sup.r. 400, 565 A.2d 1170 (1989)1 Hacknev v. Wood, 424
'a.Super. 96, 622 A.2d 286 (199J), allce. arant.d, ___ Pa. ___,
634 A.2d 224. W. will, therefore, address this claim on it.
..rits,
12
NO. 94-6040 CIVIL TBRM
A.2d 1180, 1188 (1990) (citation omitted).
The Plaintitf mu.t al.o plead severe emotional distres.
which includes "all highly unpleasant mental reaotions, suoh .s
fright, horror, grief, shame, humiliation, embarrassment,
ohagrin, disappointment, worry, and nausea." Haoknev v.
Woodrina, 424 Pa,Super, 96, 622 A,2d 286 (1993). The
Penneylvania Supreme Court noted that if it were to adopt the
tort ot intentional infliotion of emotional di.tres., "[alt the
very lea.t, existenoe of the alleged emotional di.tres. must be
supported by competent medioal evidence," Kazatskv v. Kina David
Memorial Park, 515 Pa. 183, 197, 527 A.2d 988, 995, However, the
Penn.ylvania Superior Court, who haG aoknowledged the exi.tence
ot this tort, reoently adopted the reasoning of Justice Lar.en in
hi. oonourring opinion of Kazatskv ~y holding that the exi.tenoe
ot severe emotional di.tre.. is a question of fact whioh can be
deoided by a jury unaided by expert testimony. Haoknev v.
~, 424 Pa.Sup~r, 96, 622 A,2d 286 (1993). In Hacknev,
where the plaintitt, an eighteen-year-old college student was
sexually abused by her male employer while she worked as a
teaoher's aide at a day oare center, the Court saidl
The greater the outrage, the less should be
required of a plaintiff, by way of proof, to
establish severe distres.J the distre.s can
be inferred from the nature of the oonduct
it.elf. Expert testimony may be useful in
oertain oas.s in which the plaintift wish.s
to establish suffering from a .peoifio malady
with whioh the average person is untamiliar,
or where the evidenoe of the outrageous
nature of the defendant's behavior i. not
13
NO. 94.6040 CIVIL TERM
.elt-evid.nt.
~ at 290, 622 A.2d at 290 (cit.tion omitted). The Court
ultimately held that the .uffering whioh the plaintift
experienced wa. .upported by the t..timony ot her co-worker. .nd
w.. within the under.tanding ot the average juror, theretore,
expert te.timony was not n.c....ry,
In the pre.ent ca.e, in Count III alleging intentional
infliction ot emotional di.tre.., the Plaintift aver..
48. Pl.intiff was .mbarra..ed and humiliated
by the Defendant.' .ct. of requiring him to
place hi. hand. out.ide of the driv.r'. .ide
window, pulling the Plaintiff through .aid
driver'. .ide window onto the ground, vi.wing
at l.a.t thr.e (3) tir.arm. point.d dir.ctly
at Pl.intift'. head, all within the public
view in the parking lot of a t.v.rn and
r..taurant.
49. Said act. of the D.f.ndant. h.rein
b.tore d.scribed cau..d the Plaintift .uch
emotion.l di.tres. that he cannot .leep .t
night., the Plaintift continually.... the
w.apon. pointed dir.ctly at his head,
50. Said intentional act. of the Defend.nt.
cau.ed the Plaintiff .uch emotional di.tre..,
th.t a. of the time ot the filing of this
Complaint, the Plaintiff .utf.rs .xtr.me
mental anxi.ty and continually relive. the
incident,
C~nd.d Complaint at 15). Acc.pting a. true the Plaintiff'.
plead.d tact., w. think that rea.onable per.on. may difter a. to
whether the conduct i. extreme or outrag.ou., theretor., it
.hould be lett tor the jury to d.cide. Emotion. .uch ..
eab.rr.....nt, humiliation, .leeple..ne.., and ment.l .nxiety are
not .peoitic mal.di.. with which the aver.ge person i.
14
NO. 94-6040 CIVIL TERN
unfamiliar. purth.rmor., if the conduct is a. the Plaintiff
av.r., the di.tre.. may b. int.rr.d trom the nature of the
conduct it..lt. The Plaintitt has plead.d the ...ential .lement.
ot int.ntional infliction of .motional distr.... At this time,
the Court b.liev.. it i. premature to rule with certainty that
recovery would be impo..ibl.,
IV. Violation of civil Riaht.
All Defendant. rai.e pr.liminary objection. in the nature of
a demurrer to Count III of the Plaintift'. Amended Complaint
alleging violation of civil rights. Section 1983 provide. a.
tollow..
Every per.on who, und~r color of any .tatute,
ordinance, regulation, cu.tom, or u.age, of
any Stat. or Territory, .ubject., or caus..
to be .ubj.cted, any citizen of the United
State. or oth.r per.on within the
jurisdiction ther.ot to the deprivation of
any right., privil.ge., or immuniti.. secured
by the Constitution and law., .hftll be liable
to the partr injur.d in an action at law,
.uit in .qu ty, or other proper proceeding
for r.dr.s.,
42 U.S.C. S.ction 1983. E.s.ntially, S.ction 1983 provide. a
civil r.medy for d.privation. of fed.rally protect.d right.
cau..d by p.r.on. acting und.r color of .tat. law. Parratt v.
Tavlor, 451 U,S, 527 (1981), A court mu.t initially inquire a.
to whether two ....ntial .l.m.nt. .Xi.tl (1) wheth.r the conduct
coaplain.d of was committ.d by a per.an acting under color of
.tate law, and (2) wheth.r this conduct d.priv.d a per.on of
right., privileg.., or immuniti.. secured by the Con.titution or
15
NO. 94-6040 CIVIL TBRM
law. ot the United States. ~ Anselma Station Ltd. v. Pennoni
Associates, Inc., No. 1664, 1995 WL 39547, at *3 IPa. Commow. Ct.
Feb. 3, 1995).
A. Procedural and Sub.tantive Due Process Riqht.
All Defendant. claim that to the extent that Count III is
predicated upon an alleged deprivation ot Plaintift'. procedural
and substantive due process rights, it fails to .tate a claim or
cause of action upon which relief can be granted,.
The firet element of under color of state law is established
"eo lonq as the .tate hae clothed the detendant with apparent
· Although in their briet, Detendants', East pennsboro
Township, Borough of Weet Fairview, Patrolman Matthew T. Shuey,
Otficer Michael J, Cotton, Patrolman Todd Ba.hore, Patrolman
Jemes French, and Officer Spencer, address thti is.ue ot whether
the otficers can be eued in their official capacity when a suit
ha. already been lodged against the municipalities tor whom they
are employed, they have not raised thi. issue in their
preliminary objection.. The preliminary objection reads as
followea
20. Count III of Plaintiff'. Amended
Complaint attempts to assert a claim or cause
of action pursuant to 51983 againet the
individual officers for an alleged
deprivation of Plaintiff's Fourth Amendment
Rights, as well as Plaintiff'e procedural and
substantive due proce.s right.,
21. To the extent that Count III ot
Plaintiff's Amended Complaint is predicated
upon an alleqed deprivation of Plaintitt's
procedural and substantive due proces.
rights, it fails to state a claim or cause ot
action upon which relief can be granted.
(Defendants Preliminary Objections to Plaintiff's Amended
COMplaint at 4, 5). Because the Defendants did not raise this
i.sue in their preliminary objection, we will not addre.s it at
tbis ti_.
16
NO. 94-6040 CIVIL TERM
authority to act. , ." Kedra v, Citv of philadelphia, 454
P.Supp. 652 (1978). The Plaintiff alleges that the Defendant
police officers "were acting in their role's as police officers
and under the supervision, authority, direction, and control of
their respective boroughs/townships." (Amended Complaint at 16).
The Plaintiff clearly avers that the source of authority of the
Defendant police otficers flowed trom the respective boroughs/
townships, therefore, the Plaintiff has met the first requirement
ot a Section 1983 cause of action.
As to the second element of deprivation of rights,
privileges, or immunities secured by the Con~titution or laws ot
the United States, the Plaintiff avers that "[t]he Defendants by
their conduct and concerted action, deprived the Plaintiff of his
Constitutional Rights to be free from use of excessive force,
unreasonable search and seizure, and due process," (Amended
Complaint at 17), The Defendant police officers only raise
preliminary objection. to the Plaintiff'. allegations ot a
deprivation of his procedural and substantive due process rights.
In Graham v, Connor, 490 U,S, 386, the United States
Supreme Court set out the correct standard to be utilized in a
olaim under 42 U,S,C.S. Section 1983 dealing with excessive
force. In Graham, the plaintitf alleged that police ofticers had
used exces.ive force in making an investigatory stop in violation
ot rights s.cured to him under the Federal Constitution'.
fourteenth ~ndment and 42 U.S.C.S. Section 1983. In analyzing
17
NO. 94-6040 CIVIL TIRM
the claim, the Court held that "all cl.ims that law entorcement
officers have u.ed exce.sive force--deadly or not--in the cour.e
of an arrest, investigatory stop, or other '.eizure' of . free
citizen .hould be analyzed under the Fourth Amendment .nd its
'rea.onablene..' atandard, rather than under a '.ubstantive due
process' approach." ~ at 395. Thi. rea.onablenes. "i. .n
objective one. the question i. whether the ofticer.' actions are
'objectively rea.onable' in light of the fact. and circum.tanc.s
confronting them, without regard to their underlying intent or
motivation." ~ at 397.
pur.uant to the Court'. rea.oning in Graham, accepting as
true all well-pleaded facts of the plaintiff'S Complaint, we mu.t
determine whether or not the Plaintiff pleaded that the uee of
force by the Detendant police officers was not objectively
rea.onable. The plaintiff avers.
56. The Plaintiff wa. picking up a friend at
a tavern/restaurant and was on hi. way home,
wh.n the police otficers followed the
Pl.intitf, and even though the various police
officers notic.d no erratic driving and had
no probable cau.e to .top the Plaintiff, ..id
police officers detained, encountered,
embarr....d, and used excessive force upon
the Plaintiff cau.ing phy.ical injury.
57. Th. various police officer, acting
within the .cop. of their authority .nd
.mployment with the respective
boroughs/township., were acting on
information received of .n intoxicated men
with a firearm in a truck,
58. Iven though the various police offioer.
w.r. info~d the operator of the truck w..
intoxicated, and even though various police
l8
NO. 94-6040 CIVIL TBRM
officers followed the Plaintiff tor a
sufficient amount of time and noticed no
erratic driving, and had no probable cau.e to
believe the plaintiff was intoxicated and wa.
driving unsafely, the variouu police officer.
.urrounded the Plaintitf while he wa. parking
hi. truck at a tavern/restaurant,
59. Imm~diately thereafter, Officer French
had exited from hi. crui.er and withdrew hi.
sidearm and wa. holding it and pointing it at
the direction of the Plaintiff'. head, the
right side of hi. head, approximately three
(3) feet away,
60. Another officer positioned himself on
the left side of the Plaintiff, with his
.idearm drawn and pointed on the lett side ot
the head ot the Plaintiff, approximately
three (3) feet away,
61, Officer Todd Bashore was immediately in
front ot the Plaintiff with hi. shotgun
pointed at the front of the Plaintiff's
truck, approximately eight (8) feet away.
62, At that time, Officer French ordered
that the Plaintift be pulled through the
window and the Plaintiff was pulled through
the driver's side window while the gla.s
window was up approximately six (6) or eight
(8) inches, shattering the glas., and pulling
the hands, arm., back of the hair ot the
Plaintiff and clothing of the Plaintiff,
propelling the Plaintiff approximately four
(4) feet forward and onto the stone surface
of the parking lot.
63. The Plaintiff was face down on the
stones of the parking area, and the police
officers had a hold of each of the
extremities of the Plaintiff and the one
officer placed a knee in the Plaintiff's back
and then hi. arm. were forced backwards.
64. Even though the Plaintiff did not re.i.t
the police officers in any manner, placed his
hands outside of the drive~'s side window a.
ordered, the police officers continued
without any provocation or probable cau..
19
RO. 94-6040 CIVIL TIRM
whatsoever to exert exces.ive phy.ioal force
upon the Plaintiff causing physical injury,
loss of inoome, medical expenses, mental
anguish and pain and suffering,
(Aaended Complsint at 18, 19). The Plaintitf has clearly pleaded
that the uee of torce by pulling the Plaintiff through hi. truck
window without any provocation or probable cause was excessive,
Accepting a. true the Plaintiff's facts, this exces.ive u.e of
toroe was not objectively reasonable, therefore, the Plaintitf
hae pleaded facts to .atisfy the requirements of a Section 1983
cause of action,
B. Liability of Municipality
The Defendants', East Pennsboro Township, Borough ot We.t
rairview, and Borough of wormleysburg, claim that Count III of
plaintitf'. Amended Complaint contain. conclusory allegations
that the municipalities failed to adequately train, supervi.e,
and/or discipline it. police officers becau.e it fail. to speoify
any particular deficiencies in the training and/or supervision of
the ofticer.. Furthermore, because Count III tails to allege any
facts e.tabli.hing an unconstitutional policy upon which relief
can be granted, and ae a matter ot law municipal employe.s may
not be held vicariously liable on a Section 1983 cause of aotion,
the olaim should be dismissed or the plaintiff should file a more
speoifio pleading,
In Canton v. Harris, 489 U.S. 378 (1989), the United State.
Supre.. Court held that "a municipality oan be found liable under
Seotion 1983 only where the munioipality it.ell cau.es the
20
NO. 94-6040 CIVIL TSRM
constitutional violation at issue, Respondent superior will not
attaoh under Seotion 1983,. ~ at 385 (emphasis in original).
In order to support this action against a munioipality, there
must be a direot causal link between a municipal policy or custom
and the alleged constitutional deprivation, ~ In the context
ot the present case, "the inadequacy of police training may serve
as the basis for Section 1983 liability only where the failure to
train amounts to deliberate indifference to the rights of persons
with whom the police come into contact," ~ at 388 (emphasis
added). It does not suffice to prove that a particular officer
may be unsatisfaotorily trained, or that an injury or accident
could have been avoided if an officer had better training. ~
In Ueinlv v. Commonwealth, 153 Pa.Commow, 599, 621 A.2d 1212
(1993), the Pennsylvania Commonwealth Court held that because the
Plaintiff merely asserted that the defendant's were directly
responsible for training and failure to do so resulted in
injuries, the dismissal for tailure to state a cause of action
under Section 1983 was proper, The United States Supreme Court
ha. held that a single isolated incident of the use ot exces.ive
force by a police officer cannot establish an official policy or
practice ot the municipalIty sufficient to render it liable for
damages under Section 1983, Oklahoma Citv v. Tuttle, 471 U.S.
808 (1985).
In his Amended Complaint, the Plaintiff avers I
83. Acting under color of law and pursuant
to official policy or custom, Defendant last
21
NO. 94-6040 CIVIL TBRM
heretotore delcribed.
87. As a direct and proximate cause of the
act. ot Defendants, Ba.t Penn.boro Town.hip,
Borough of West Fairview, and Borough of
Wormleysburg, as set torth above, Plaintiff
.utfered phy.ical injury, 10.. of income,
medical expense., permanent injury, and
~evere mental angui.h in connection with the
deprivation ot his Conetitutional and
statutory rights guaranteed by the Pourth
Amendment of the Constitution of the United
State and the Constitution ot the
Commonwealth of penn.ylvania.
88. The Detendants, police otticer. were not
trained in the proper arrest proc.dure ot a
mi.demeanor, when they have not viewed said
mi.demeanor, All of which con.titute.
liability for the Con.titutional Right.
violation ot the Plaintift upon the borough
and town.hips in that all action. above set
forth have contributed to deprivation of the
Plaintiff's civil rights.
(Amended Complaint at 24-26). It is clear from the ple.dings
that the Plaintiff is using this .ingle isolated incident to
e.tablish an official policy or practice. Without more, we are
sufticiently convinced that the tacte pleaded are not legally
sufticient to permit this action to continue; therefore, the
claim. agalnst the municipal defendants mu.t be dismissed.
V, Punitive Damaaee
The Defendant police officers claim that because Count III
fail. to allege the requisite outrageous or egregiou. conduct or
reckle.s di.regard for Plaintiff'. federally protected righte,
the Plaintiff fails to .tate a claim for punitive damage. upon
which relief can be granted,
Punitive damage. are available in a Section 1983 aotion
23
NO. 94-6040 CIVIL TERM
again.t a defendant in hb or her individual capacity,. Aaresta
v. GOode, 797 F.Supp. 399 (B,D. Pa 1992). In ple.ding this type
of cause of action, the United State. Supreme Court has held that
a "jury may be permitted to a.ses. punitive damages in an action
under Section 1983 when the defendant'. conduct is shown to be
motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected right. of
other.." Smith v, Wade, 461 U.S. 30, 56 (1983), The que.tion ot
whether to award punitive damages i. left to the jury it "the
plaintift prove. sufficiently eerious misconduct on the
detendant's part," ~ At 52.
Based on the Plaintiff's fact., this Court believes that it
would be premature At this early stage ot the pleadings to
conclude with certainty that a recovery would be impo..ible. For
this rea.on, the demurrer on behalf of the Defendant police
officers a. to punitive damages will be denied,
ORDER OF COURT
AND NOW, thb I:f.J!y day ot J:p/l.J.., 1995, after careful
con.ideration of Detendant's preliminary objection. and tor the
rea.ons stated in the accompanying Opinion, it i. ORDBRlD and
DIRECTBD as tolloW81
I. The preliminary objections in the nature ot a demurrer
on behalf of Defendant police otticer. to Count I (....ult .nd
battery), Count II (intentional infliction of e~tion.l
distre..), and Count III (v.Lolation of civil right.. under 42
24
RO. 96-6060 CIVIL TIRM
U.B.C. Section 1983) on the 9round of 90vernmental and official
.u.unity are DINIID, pur.uant to the political Subdivi.ion Tort
ClaiJD. Act.
2. The preUlllinary okjection. in the nature ot a demurrer
on behalf of Defendant police officers to Count I (a..ault and
battery), Count II (intentional infliction of emotional
di.trees), Count III (violation of civil ri9ht.), and punitive
d...ge. are DINIBD.
3, The prelilllinary objection. in the nature of a demurrer
on behalf ot Defendant municipalitiee to Count III (violation of
civil right.) is GRANTED,
By the Court,
1.1 Harold B. Sh.elv
Harold B. Sheely, P.J.
Arthur l. Dils, B.quire
For the Plaintiftf
J.... COlli tale, Isquire
For the Defendant
add
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.
6, Plaintiff never served Officer Robert Shumaker of the
Wormleysburg Borough Police Department with a copy of Plaintiff's
Complaint.
7. Plaintiff's Complaint alleges that on or about March
23, 1993, Plaintiff was operating his motor vehicle in and about
the Borough of Wormleysburg, specifically Dumphy's Tavern and
Restaurant. SU: Exhibit "A" paragraphs 11 - 18.
8. Plaintiff's Complaint alleges that prior to being
stopped by various law enforcement officials, a citizen complaint
was received of a person operating a motor vehicle under the
influence and said individual was carrying a semi-automatic
pistol.
9. Plaintiff's Complaint avers that some combination of
various law enforcement officials stopped Plaintiff, withdrew
their sidearms, ordered Plaintiff fro~ his motor vehicle, and
after Plaintiff did not comply with this order, Defendants pulled
Plaintiff through the driver's side window of Plaintiff's motor
vehicle thereby causing the injuries and damages averred in
Plaintiff's Complaint. ~: Exhibit "A", paragraph 18 - 32.
10. Plaintiff avers that Defendants, Borough of
Wormleysburg and Officer Robert Shumaker, are liable to him under
theories sounding in state law tort claims of assault and battery
(Count I), intentional infliction of emotional distress (Count
II), false imprieonment (Count III), and violation of civil
rights (Count IV).
-2 -
11. Count IVof Plaintiff's Complaint avers that the
Defendants violated Plaintiff's Fourth, Fifth, Eighth and
Fourteenth Amendment rights as well as Pennsylvania's
Constitution, the United States Constitution and 42 U.S,C,A
section 1983 ~. ~.
I. DI.IINJ)AN'1" S, BOROUGH O. WOJUlL.YSBURG, DIMtJJlRIJt TO
comrrs I. II AND III O. PLAINTIn' S COMPLAINT
12. Defendants, Borough of Wormleysburg and Officer
Shumaker, incorporate by reference as if fully set forth at
length herein paragraphs 1 through 11 of their Preliminary
Objections to Plaintiff's Complaint.
13. Plaintiff's Complaint attempts to assert causes of
action sounding in assault and battery (Count I), intentional
infliction of emotional distress (Count II), and false
imprisonment (Count III).
14. Defendant, Borough of Wormleysburg, is a local agency
within the meaning of subchapter "e" of Title 42, Pennsylvania
Consolidated Statute Annotated, commonly referred to as the
Governmental Immunity statute, 42 Pa.C.S.A S 8541 ~. ~.
(hereinaftex' "the Act") .
15. The Act legislatively raises a shield of governmental
immunity against damages on account of any injury to a person or
a property caused by an act of a local agency or employee
thereof, or any other person, except as otherwise provided. SAA:
Mascaro v. Youth Study Center, 514 Fa. 351, 523 A.2d. 118 (198?).
-)-
.
16. Local agencies of the Commonwealth of Pennsylvania,
such as Defendant, Borough of Wormleysburg, and its police
department, are cloaked with a general legislative grant of
immunity under the Act, unless the cause of action falls within
the purview of one of the eight (8) exceptions to immunity
enumerated in 8452 (b),
17. In considering whether injuries occurred within any of
the eight (8) enumerated exceptions in the Act to absolute
immunity, the Supreme Court has held that all the exceptions must
be narrowly interpreted given the expressed legislative intent to
insulate the government and its political subdivision from tort
liability. ~: Walsh v. Citv of Philadelohia, 526 Pa, 585, 585
A.2d. 445 (1991).
18. None of the legislative exceptions to the general
immunity of a local governmental agency is implicated by the
averments contained in Counts I - IV of Plaintiff's Complaint
against the Borough of Wormleysburg and, therefore, Plaintiff's
Complaint against the Borough of Worml~ysburg must be dismissed
with prejudice pursuant to Pennsylvania Rule of Civil Procedure
1028 (al (4) .
19, Counts I - IV of Plaint iff's Complaint must be
dismissed with prejudice pursuant to Rule 1028 (a) (4) because the
aforementioned Counts fail to set forth any facts or inferences
from which an exception to the Borough of Wormleysburg's
governmental immunity can be predicated.
-4-
WBlRI.OR., Defendants, Borough of Wormleysburg and Officer
Robert Shumaker, respectfully request that this Honorable Court
grant its Preliminary Objection in the nature of a demurrer and
dismiss Counts I - IVof Plaintiff'a Complaint against it with
prejudice together with interest, costs and attorney's fees.
II. DI.INDAHTS', BOROUGH O. WORMLIYSBURG AND O..IC.R ROBlaT
SHUMAKIR, PR.LIMINARY OBJlCTION IN THI HATURI O. A
DIlIIUIlR.. TO COUNTS I - IV O. PLAINTI..' S COMPLAINT
20. Defendants, Borough of Wormleysburg and Officer Robert
Shumaker, incorporate by reference as if fully set forth at
length herein the averments contained in paragraphs 1 through 19
of their preliminary Objections to Plaintiff's Complaint
21. As an employee of a political subdivision, Officer
Robert Shumaker enjoys the same cloak of immunity as the Borough
of Wormleysburg. ~: 42 Pa.C.S.A. S 8545 and S 8546.
22. The ~ time this cloak of immunity is removed from an
employee of a political subdivision is when the employee's
conduct rises to a level of crime, actual fraud, actual malice or
wilful mJ.sconduct. ~: 42 Pa.C.S.A. S 8550.
23. plaintiff's Complaint does not allege that Officer
Robert Shumaker's actions constituted a crime, actual fraud,
actual malice or wilful misconduct and, therefore, Officer Robert
Shumaker is immune from liability as a matter of law on all of
Plaintiff's claims.
24. Under Pennsylvania Law, a police officer, such as
Officer Robert Shumaker, is "justified in the use of any force
-5-
...
which he believes to be necessary to effect the arrest." ~: 18
Pa.C,S.A. S 5~8 (aI,
25. Plaintiff's Complaint does not allege any facts from
which a reasonable juror could infer that Officer Robert
Shumaker's actions constituted an abuse of that privilege to use
force.
26. Counts I - IV of Plaintiff's Complaint fail to state
claims or causes of actions upon which relief can be granted and,
consequently, Counts I - IV of Plaintiff's Complaint against
Officer Robert Shumaker should be dismissed with prejudice.
27. Count III attempts to assert a claim for intentional
infliction of emotional distress against the Borough of
Wormleysburg and Officer Robert Shumaker.
28. Assuming aqruendo, that Pennsylvania recognizes this
cause of action, Plaintiff's Complaint does not allege that
Officer Robert Shumaker and Borough of Wormleysburg acted with
the requisite outrageous and egregious conduct to state a viable
claim for intentional infliction and emotional distress.
29. Plaintiff's Complaint fails to allege that Plaintiff
sought and received any medical treatment for his alleged
emotional distress as required by Pennsylvania case law.
30. Counts III of Plaintiff's Complaint fails to state a
cause or claim of action for intentional infliction of emotional
distress.
-6-
Pennsylvania's Statutes), paragraph 68 (the United States
Constitution, procedural and substantive due process as well as
Plaintiff's Fifth and Fourteenth Amendment rights under the
United States Constitution paragraph 69 ("freedom of bodily
restraint guaranteed by the U.S. and Pennsylvania Constitution),
paragraph 79 (Plaintiff's Fourth Amendment rights under the U.S.
Constitution), paragraph 83 (freedom from unreasonable searches
and seizures guaranteed by the Fourth Amendment as well as
freedom from excessive force guaranteed by the Eighth Amendment
and dup. processes guaranteed under the Fourth and Fifteenth
Amendments) and paragraph 79 (section 1983), (Presumably, 42
U.S,C.A, S 1983]
35. Plaintiff is precluded as a matter of law, pursuant to
42 U.S,C.A S 1983, from recovering punitive damages under a
federal law or civil rights statute as against municipal
def.endants, the Borough of Wormleysburg and Officer Robert
Shumaker,
36, Plaintiff is also precluded as a matter of law from
recovering punitive damages pursuant to Pennsylvania's
Governmental Immunity Statute against municipal defendants,
Borough of Wormleysburg and its employee, Officer Robert
Shumaker. ~: 42 PA. C.S.A S 8541 ~, ~.; City of NeWDort v.
Fact Concerts. Inc, 453 a.s, 247, 271 - 72 (1981).
37. Similarly, Plaintiff has failed to plead facts, which
assuming 8rauendo only, are true, that meet the requisite
-8-
.,
42. Specifically, Plaintiff avers that his Fourth, Fifth,
Eighth and Fourteenth Amendment rights under the United States
Constitution wer~ violated.
43, Plaintiff avers that excessive force was used on him,
44. Plaintiff avers that his United States constitutional
rights and Pennsylvania constitutional rights were violated.
45. Plaintiff claims that his rights under Pennsylvania's
Motor Vehicle Code and Crimes Code as well as Pennsylvania'S
Statutes were violated.
~6, Count IV of Plaintiff's Complaint contains conclusory
allegations that the Borough of Wormleysburg and/or Officer
Shumaker failed to adequately train and/or supervise.
47, Count IV of Plaintiff's Complaint fails to aver any
facts establishing an unconstitutional policy, practice or custom
on the part of the Borough of Wormleysburg.
48. Count IV of Plaintiff's Complaint fails to conform with
Rule 1019(a) in that it does not aver the conduct of each
individual officer which allegedly deprived Plaintiff of his
federally protected rights.
49. To the extent Court IV of Plaintiff's Complaint is
predicated upon an alleged deprivation of Plaintiff's Fifth and
Eighth Amendment rights, it fails to state a claim or cause of
action upon which relief can be granted.
50. Plaintiff's Complaint fails to state a claim or cause
of action for false imprisonment.
-10-
5l. Plaintiff's Complaint fails to state a claim or cause
of action for assault and battery,
52, Plaintiff's Complaint fails to state a claim or cause
of action for intentional infliction of emotional distress.
53. Count IV of Plaintiff's Complaint must be dismissed
with prejudice pursuant to Pennsylvania Rule of Civil Procedure
1028 (al-(41, because the averments contained in Count IV of
Plaintiff's Complaint fail to set forth any facts or inferences
from which a cognizable cause of action can be asserted against
Defendants, Borough of Wormleysburg and Offi.cer Robert Shumaker.
wa.RI.OR., Defendants, Borough of Wormleysburg and Officer
Robert Shumaker, respectfully request that this Honorable Court
grant its Preliminary Objections and dismiss Count IV of
Plaintiff's Complaint with prejudice, together with interest,
costs, and attorney's fees.
V. DUINDANTS', BOROUGH or WORML.YSBURG AND O..ICIR RO.IRT
SHUMAKIR, PRILIMINARY OBJICTIONS IN TH. .ORM O. A
MOTION 'OR SPICI.IC PL~INGS
54. Defendants, Borough of Wormleysburg and Officer Robert
Shumaker, incorporate by reference the averments of paragraphs
through 53 of their Preliminary Objections as if fully set forth
at length herein.
55. Rule 1028(a) (2) provides that any party may file
Proliminary Objections alleging insufficient specificity in a
pleading,
-11-
56. Rule 1019(a) provides that the material facts upon
which a cause of action is based shall be stated in concise and
summary form.
57, Count IV of Plaintiff's Complaint attempts to assert a
claim pursuant to S 1983 against Defendants, Borough of
Wormleysburg and Officer Robert Shumaker, for an alleged failure
to adequately train and/or supervise its police officers.
58. Count IV of Plaintiff's Complaint fails to allege the
material facts establishing an unconstitutional policy, practice
or custom on the part of Defendants, Borough of Wormleysburg and
Officer Robert Shumaker.
59, Plaintiff's Complaint, especially Count IV, fails to
allege the actions of each officer which allegedly deprived
Plaintiff of his federally protected rights and fails to allege
the material facts in support of the state law claims,
WHIRI.ORI, Defendants, Borough of Wormleysburg and Officer
Robert Shumaker, respectfully request that this Honorable Court
grant its Preliminary Objections and dismiss Count IV of
Plaintiff's Complaint with prejudice, together with interest,
costs, and attorney's fees.
-12-
3. The Defendant, the Borough of West Fairview, is a duly
existing borough under the laws of the Commonwealth of
Pennsylvania, with its municipal office located at 410 Cherry
Street, West Fairview, Cumberland County, Pennsylvania.
4. The Defendant, the Borough of Wormleysburg, is a duly
existing borough under the laws of the Commonwealth of
Pennsylvania, wi th its municipal off ice located at 20 Market
Street, Wormleysb~rg, Cumberland County, Pennsylvania.
5. The Defendant, PatrQlman Matthew T. Shuey, is an adult
individual, who at the time and place of the events hereinafter
com~lain$d of, was a duly constitut&d and employed police officer
of the above named Defendant, Borough of West Fairview, and
at the time and said place was acting within the scope of his
authorit.y and under the direction and control of the Borough
of West Fairvlew Police Department, West Fairview, Pennsylvania.
6. The Defendant, Officer Michael J. Cotton, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constit.uted and employed police officer
of the above named Defendant, East pennsboro TownShip, and at
the tille and said place was acting wi thin the scope of his
-2-
authority and under the direction and control of the Township
of East pennsboro Police Department, East Pennsboro,
Pennsylvania.
7. The Defendant, Patrolman Todd Bashore, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and amployed police officer
of the above named Defendant, East pennsboro Township, and at
the time and said place was acting within the scope of his
authority and under the direction and control of the Township
of East pennsboro Police Department, East Pennsboro,
Pennsylvania.
8. The Defendant, Officer Robert Shumaker, is an adult
individual, who at the time and place of the events hereinafter
complained of, was a duly constituted and employed police officer
of the above named Defendant, Borough of Wormleysburg, and at
the time and said place was acting wi thin the scope of his
authority and und6r the direction and control of the Borough
of Wormleysburg Police Department, Wormleysburg, Pennsylvania.
9. The Defendant, Patrolman James French, is an adult
individual, who at the time and place of the events hereinafter
-3-
complained of, was a duly constituted and employed police
officer of the above named Defendant, Borough of West Fairview,
and at the time and said place was acting within the scope
of his authority and under the direction and control of the
Borough to West Fairview Police Department, West Fairview,
Pennsylvania.
10. The Defendant, Officer Spencer, is an adult individual,
who at the time and place of the events hereinafter complained
of, was a duly consti tuted and employed police officer of the
above named Defendant, East pennsboro Township, and at the time
and said place was acting within the scope of his authority
and under the direction and control of the East pennsboro
Township Police Department, East Pennsboro, Pennsylvania.
11. The events hereinafter complained of occurred on or about
March ~3, 1993 at approximately 8:30 p.m.
12. Prior thereto, the Plaintiff had been fishing with a
companion, Lewis A. Buck, and had in his possession a 380 Walther
handgun.
13. Russell C. Fickes was
sportsman's firearm permit
duly licensed
issued undel'
and
the
had a valid
authority of
-4-
Section 6106(c) of the Crimes Code, said license was obtained
from the Tioga County Sheriff on or about 1984.
14. The Plaintiff, Russell C. Fickes, shortly before the time
set forth above, was on his way to his residence and he stopped
at Dumphy I s Tavern and Restaurant to pick up a friend and go
to hi8 home.
15. Prior to arriving at Dumphy'8, Tavern and re8taurant, We8t
Fairview Police received a report from a citizen who indicated
that there was an individual who was posseuing a firearm and
was possibly intoxicated.
16. Variou8 officers in the vicini ty of West Fairview focu8'l!d
upon a 1991 red and whi te Ford pick-up truck; the off icer8
observed the truck and ba8ically did not detect any erratic
driving a8 it proceeded north on Route8 11 and IS in the Borough
of we8t Fairview; however, one off icer did indirJate that he
felt there was an abrupt turn onto Hummel Street in the Borough
of Ea8t Penn8boro Town8hip.
17. The 8aid pick-up tnlck exhibited no violation of the Motor
Vehicle Code, nor any sU8picioU8 or UnU8\lal activity; howevol',
-5-
the police pursued the vehicle as it was legally operated and
entered into Dumphy's parking lot.
18. At that time, the Plaintiff was positioning his truck and
backing it up to park in a proper and reasonable manner when
police cruisers diverged upon the scene; one cruiser was
positioned with lights shining into the drive~'s side in front
of the truck. An attempt was made to communicate by the police
to the Plaintiff via the public address system, but the police
did not make themselves clear. At or about this time, three
other police cruisers arrived on the scene surrounding the
Plaintiff's pick-up truck.
19. The Plaintiff, Russell C. Fickes, was ordered to put his
hands out of the driver I s side window, and he complied with
said order.
20. Immediately thereafter, Officer French had exited from
his cruiser and withdrew his sidearm and was holding it and
pointing it at the direction of the Plaintiff's head; the right
side of his head, approximately three (31 feet away.
21. Another off icer pod tioned himself on the left side of
-6-
41. AI a re.ult of the intentional actl and conduct of the
varioul police officerl, Plaintiff demands judgment againlt
the Defendants, as there was a master/servant relationship
exilting between the various police department. and the
relpective boroughs or townships in that the police officer.
were acting within the scope of their employment and under the
control and supervision of the Defendants/boroughs and township..
42. The Defendants, acting within their authority within the
.cope of their employment, physically pulled the Plaintiff out
of hie vehicle and placed him face down on the stone parking
lot. This force was excessive and unnece,sDry.
43. The Defendant., the various police officers, intentionally
and offensively touched the Plaintiff, when they physically
removed him from hil truck through the driver'l side window,
when they held him face down on the parking lot, pUlhing his
face into the stonel, hOlding all of his extremities, handcuffing
him, throwing him into the back of a pOlice cruiser face down,
all of these acts were in no way conlented to by the Plaintiff
and no legal jUltification exiltl for Iuch action. by the
Defendants.
-13-
53. The various police officers, while acting under their
employment and under the supervision and wi thin the scope of
authority of the Defendants, boroughs and townships, intended
to and did confine the Plaintiff for an unnecessArily long period
of time.
54. The acts of the various police officers, while acting within
the scope of their authority and under the employment control
of the various boroughs and townships, resulted in the
confinement of the Plaintiff for an unnecessarily long period
of time, preventing him to leave the area.
55. As a result of the intentional confinement by the various
police officers, the Plaintiff was conscious of said confinement
and harmed by it, in that he lost his liberty for an
unnecessarily long period of time, was exposed to excessive
force, physical inj ury, and was exposed to the observation by
the patrons of the tavern and restaurant, neighbors, and
motorists passing by the area at the above time and place.
56. As a result of the false imprisonment, the Plaintiff
suffered disruption of his life, interference with his tillie,
humiliation, physical harm, emotional upset, and mental anguish.
-17-
60. The various police officers, under the direct control and
supervision of their respective boroughs and townships, singled
out, identified, and used excessive force towards the Plaintiff,
Russell C. Fickes.
61. The Plaintiff was picking up a friend at a tavern/restaurant
and was on his way home, when the police officers followed the
Plainti ff, and even though the various police officers noticed
no erratic driving and had no probable cause to stop the
Plaintiff, said police officers detained, encountered,
embarrassed, and used excessive force upon the Plaintiff causing
physical injury.
62. The various police officers, acting wi thin the scope of
their authority and employment with the respective
borou9hs/townshipll, were acting on information received of an
intoxicated man with a firearm in a truck.
63. Even though the various police officers were informed
the operator of the truck was intoxicated, and even though the
var ious police officers followed the Plainti ff for a suff icient
amount of time and noticed no erratic driving, and had no
probable cause to be11$ve the Plaintiff was intoxicated and
-19-
was driving unsafely, the variou3 police officers surrounded
the Plaintiff while he was parking his truck at a
tavern/restaurant, pointed at least three (3) weapons, two (2)
sidearms and one (11 rifle at the head of the Plaintiff, ordered
the Plainti ff to place his hands outside of the driver's side
window, which the Plaintiff did immediately, physically pulled
the Plaintiff from his truck through t:he driver's side window
shattering the glass, with the Plaintiff landing on the parking
lot of the tavern/restaurant, and continued to exert excessive
physical force upon the plaintiff to the point that the various
police officers fractured the right arm and elbow of the
Plaintiff, fractured three (3) ribs, and caused lacerations
of the face of the Plaintiff.
64. Even though the Plaintiff did not resist the police officers
in any manner, placed his hands outside of the driver's side
window as ordered, the police officers continued without any
provocation or probable cause whatsoever to exert excessive
physical force upon the Plaintiff causins physical injury, mental
anxiety, pain and suffering, and emotional upset.
65. There is no probable cause for detaining or encountering
and subsequently arresting the Plaintiff, except that the various
police officers were informed there was a man intoxicated with
a weapon in a truck.
-20-
66. The various police officers, by their failure to stop the
Plaintiff while he was driving on the road en route to Dumphy's
Tavern, verify that there was no probable cause to stop the
Plaintiff, and no probable cause to exert excessive physical
force upon the Plaintiff, or threaten him by placing two (2)
sidearms and one (1) rifle at the head of the Plaintiff.
67. The actions of the police officers violated the
Constitutional Rights and laws pertaining to the Plaintiff under
the Pennsylvania Crimes Code and Pennsylvania statutes, and
in so doing, violated the liberty and civil rights of the
Plaintiff.
68. The various police officers violated the Federal
Constitutional Rights of the Plaintiff both procedural and
substantive due process as set forth in the Fifth and Fourteenth
Amendments of the United States Constitution and the Constitution
of Pennsylvania when they detained and/or arrested the Plaintiff
without probable cause, without sufficient facts for an
encounter, investigatory search, Terry search, or any other
legal basis and in fact, the police officers arrested and
detained and encountered the Plaintiff based solely on the
information of an intoxicated man wi th a weapon in a truck and
the officers had erroneous information in that, the Plaintiff
was legally licensed to carry the weapon.
-21-
.
76. As a result of the actions of the Defendants, the Plaintiff
has suffered physical pain, mental pain and suffering, mental
anxiety, and emotional upset.
77. As a result of the actions of the Defendants, the Plaintiff
has loss time at work, and loss wages in the approximato amount
of Twenty Thousand and nO/l00 ($20,000.00) Dollars.
78. Because of the deprivation of the Plaintiff's civil rights,
Attorney's fees are available under section 1988 and hence,
the Plaintiff requests Attorney's fees, which at this point
are under Three Thousand and nO/l00 ($3,000.00) Dollars, but
if further Attorney's feos are incurred through ~dditional
legal action, leave is requested of Your Honorable Court to
permit an itemized statement of the Attorney's feel to be
assessed against the above named Defendants, jointly and
severall y.
79. Plaintiff's ci viI rights, Consti tutional Rights have been
violated in that under the Fourth Amendment, he is entitled
to be free from unreasonable search and seizure; under the Eight
Amendment, the Plaintiff is entitled to be free from exceslive
force. The officerl acted without probable caus. and
-24-
.
insufficient facts and wi thout j usti fication, all of said acts
were without a warrant and without probable cause. Hence, this
action is actionable under Section 1983.
80. The Defendants, police officers, have no basis to assert
qualified immunity and are liable for civil damages as awarded
as well as the boroughs and townships as the conduct clearly
violates the established statutory and/or Constitutional rights.
81. The actions of the various police officers, the Defendants,
by randomly, arbitrarily, and impr.operly, without even a basis
of an investigatory stop under the Motor Vehicle Code shocks
the conscience and violates the civil rights of the Plaintiff.
82. The boroughs and townships also violated the Constitutional
and civil rights of the Plaintiff in that they failed to properly
train their respective police officers.
83. The police officers, Defendants in this case, arrested
and/or detained and encountered the Plaintiff in bad faith,
without probable cause, and depriving him his right to be froe
from unreasonable searches and seizures guaranteed by the fourth
Amendment, to be free from excessive force guaranteed by the
Eight Amendment, and due process as guaranteed under the Fourth
and Fifteenth Amendments.
-25-
. .
84, The respective boroughs and townships through the encounter,
arrest and/or detention of the Plaintiff, evidenced the custom
or official policy which proximately caused the Constitutional
violations alleged herein.
85. The respective boroughs and townships failed
instruct, supervise, control and discipline on a
basis the respective pOlice officers in the
Constitutional and civil rights.
to train,
continuing
area of
86. The Defendants, police officers were not trained in the
proper arrest procedure of a misdemeanor, when they have not
viewed said misdemeanor. All of which constitutes liability
for the Constitutional Rights violation of the Plainti ff upon
the boroughs and townShips in that all actions above set forth
have contributed to deprivation of the Plaintiff's civil rights.
87. The Defendants, various police officers, were never given
sufficient information to convince them or a reasonable man
that the Plaintiff had actually committed a crime.
88. Federal Law prOVides that any individual may seek redress
before YOllr Honorable Court by way of money damages against any
-26-
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9. Plaintiffs Complaint attempts to assert causes of action sounding in assault and
battery, false imprisonment and intentional inl1iction of emotional distress against Defendants
East Pennsboro Township and Borough of West Fairview.
10. Defendants East Pennsboro Township and Borough of West Fairview are local
agencies within the meaning of subchapter "C" of Title 42, Pennsylvania Consolidated Statutes
Annotated, commonly referred as the Political Subdivision Tort Claims Act, 42. Pa.C.S. ~8S41
et. SCQ. (hereinafter "the Act").
II. The Act legislatively raises a shield of governmental immunity against damaaes
on account of injury to a person or a property caused by an act of a local agency or employee
thereof, or any other person, except as otherwise provided. Mascaro v. Youth Studv Center.
514 Pa. 3SI, 523 A.2d 118 (1987).
12. Local aaencies of the Commonwealth of Pennsylvania, such as Defendants, East
Pennsboro Township and the Borough of West Fairview are cloaked with a general legislative
grant of immunity under the Act, unless the cause of action falls within the purview of one of
the eiaht exceptions to immunity enumerated in ~8S42(b).
13. In considering whether an injury occurs within any of the eight enumerated
exceptions in the Act to absolute immunity, the Supreme Court has held that all the exceptions
must be narrowly interpreted given the express legislative intent to insulate political
subdivisions from tort liability. Walsh v. Citv of PhiladelDhiA, 526 Pa. 585, S8S A,2d 445
(1991).
14. None of the legislative exceptions to the general immunity of a local
governmental agency are implicated by the aveiments of Counts I through 111 of Plaintiff s
Complaint against Defendants East PeMsboro Township and Borough of West Fairview and,
consequently, Plaintitrs Complaint against those entities must be dismiI!SCd with prejudice
pursuant to Pa.R.C.P. 1028 (a)(4) because the averments of the Complaint fail to set forth any
facts or inferences upon which an exception to the Defendant's governmental immunity can
be predicated.
IS. Count IV of Plaintiffs Complaint attempts to assert a cause of action pursuant
to *1983 against Defendants East Pennsboro Township and the Borough of West Fairview and
includes 8 request for imposition of punitive damages against those entities.
16. Rule 1019(8) Pa.R.C.P. requires that the material facts on which 8 cause of
action is based shall be stated in a concise and summary form in the complaint.
17. Count IV of Plaintiffs Complaint contains conclusory allegations that
Defendants East Pennsboro Township and the Borough of West Fairview failed to adequately
train and/or supervise their police officers.
18. Count IV of Plaintiffs Compliant fails to allege any facts establishing an
unconstitutional policy, practice, or custom on the part of the Defendants East PeMsboro
Township and the Borough of West Fairview.
19. As a matter of law, Plaintiff is precluded from recovering punitive damages
against municipal entities such as Defendants, East PeMsboro Township and the Borough of
West Fairview.
Wherefore. Defendants. East PeMsboro Township and the BorolJgh of West Fairview
respectfully request that this Honorable Court grant their Preliminary Objections in a nature
of II demurrer and dismiss Plaintiffs claims against the Municipal Defendants with prejudice.
,
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Russe~l C. Fickes
vs
Officer Michael J. Cotton
Patrolman Todd Bashore
Officer Rober Shumaker
Patrolman James French
Officer Spencer
Leroy Hippensteel, Deputy Sheriff, who being duly sworn according
to law, says on December 8, 1994 at 9.30 o'clock A.M., E.S.T., he
served true copies of Civil Action Law Notice Complaint, in the above
entitled action upon three of the within named defendants, to wit.
Officer Michael J. Cotton, Patrolman Todd Bashore and Officer
Spencer by making known unto Denise scrignoli Secretary for
Officer Michael J. Cotton, Patrolman Todd Bashore and Officer Spencer
at East Pennsboro Police at 98 S. Enola Drive, Enola, Cumberland
County, Pennsylvania, its contents and at the same time handing
to her personally the said true and attested copies of the same.
Leroy Hippensteel, Deputy Sheriff, who being duly sworn according
to law, says on December 8, 1994 at 10.30 o'lcok A.M., E.S.T., he
served a true copy of Civil Action Law notice Complaint, in the
above entitled action upon one of the within named defendants, to wit.
Officer Robert Shumaker by making known unto Barbara Haracher,
Secretary for Officer Robert Shumaker at Wormleysburg Police Department
Wormleysburg, Cumberland County, Pennsylvania, its contents and at
the same time handing to him personally the said true and attested
copy of the same.
Robert L. Fink, Deputy Sheriff, who being duly sworn according
to law, says on December 15, 1994 at 11.30 o'clock A.M., E.S.T., he
served a true copy of Civil Action Law Notice Complaint, in the
above entitled action upon one of the within named defendants, to witl
Patrolman James French by making known unto Sherry Peck Secretary
for Mid Cumberland Valley Police, for Patrolman James French
Shippensburg, Cumberland County, Pennsylvania, its contents and at
the same time handing to her personally the said true and attested
copy of the same.
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 6040 Civil Term, 1994
Civil Action Law Notice Complaint
Sheriff's Costs.
Docketing
Mileage
Surchargll
So answers,
30.00
30.00
10.00
70.00 Pd. by Atty.
12-15-94
R. Thomas Kline, Sheriff
this
..;;. ( I.
1 day,", of ~"v.~7
A. D. .-q"1u- C. )J.tdt...... ~ ~
Prothonotary
by ;t.
~L .<I~r.-~t-
eputy ppens eel
by ~ ;;;ti~;Z~-
epu y FJ.n
Sworn and subscribed to before me
1994,
\
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
In The Court of Common Pleas of
Cumberland County, Pennsylvania
No. 94-6040 Civil Term
Summons in Civil Action Law
Russell C. Fickes
VS
East pennsboro Township, Borough of
Wormleysburg, Borough of West Fairview,
Patrolman Matthew T. Shuey
Wesley Cook, Deputy Sheriff, who being duly sworn according to law,
says that on November 02, 1994 at 1:40 o'clock P.M., E.S.T., he served a
true copy of the within Summons in Civil Action Law, in the above entitled
action, upon the within named defendant, to wit: East pennsboro Township,
by making known unto Don Tappan, Assistant Township Manager, at 98 South
Enola Drive, Enola, Cumberland County, Pennsylvania, its contents and at the
same time handing to him personally the said true and attested copy of the
slime.
Wesley Cook, Deputy Sheriff, who being duly sworn according to law,
says that on November 02, 1994 at 3:15 o'clock P.M., E.S.T., he served a
true copy of the within Summons in Civil Action Law, in the above entitled
action, upon the within named defendant, to wit: Borough of Wormleysburg,
by making known unto Barbara Harlacher, Borough Secretary, at 20 Market St.,
Wormleysburg, Cumberland County, Pennsylvania, its contents and at the same
time handing to her personally the said true and attested copy of the same.
Wesley Cook, Deputy Sheriff, who being duly sworn according to law,
says that on November 02, 1994 at 3:00 o'clock P.M., E.S.T., he served a
true copy of the within Summons in Civil Action Law, in the above entitled
action, upon the within named defendants. to wit: Borough of West Fairview
and Patrolman Matthew T. Shuey, by making known unto Florence Fultz. Secretary
and Treasurer, at 410 Cherry Street, West Fairview, Cumberland County,
Pennsylvania, its contents and at the same time handing to her personally
the said true and attested copy of the same.
Sheriff's
Docketing
Service
Surcharge
Cos t s :
26.00
26.32
8.00
60.32
So A"~: L/~
r;::,:~?-~<.' -1~
R. Thomas Kline, Sheriff
Pd. by Atty.
11-10-94
Sworn and f,ubscribed to Before Me
This /7fJ, Day of 'II".,..",,(<~
1994, A.D._,,_(,(L~ G. )I(<,{<~ a",~,
pXrnonotary ,.
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PRAECIPE FOlt LISTING CASE FOlt ARGUMENT
(MusIllc IYl'cwrillcn .nd sulllllillod in dUl'lic.IO)
TO TilE rROTIIONOTARY/OF ClJMnEltLAND COUNTY
Please hsllhc wilhin miller (or llie next.
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Argumenl Courl
Prc.T,ial ^,&umcnl Court
CAPTION OF CASE
(cnllre caplion mUlt be stated in full)
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Russell C. Fickes
VI.
East pennsboro Township, Borough of West Fairview, Borough of Wormleysburg,
patrolman Matthew T. Shuey, officer Michael Cotton, patrolman Todd
Bashore, Officer Robert Shumaker, Patrolman James French, and Officer
Spencer
(Plaintifr)
(Defendant)
No. 6040
CivU Term
192.!-
I. Slalc mailer 10 be argued (i. c.. plainlifrs molion for new lrial.
dcCendanl's demurrer 10 complainl. elc.):
I
1. Idenll!y couns.l who ..HI "(pl' ~,.e:
(a) fo. plaintiff:
See Attached Sheet
(b) fo. defendant:
See Attached Sheet
). I wID nolley all p.lliel in wri'ing within two day. tho
Ilsled fOI a.&um.n", _ ~
Dale<l:
(AI orney for Ea
Borough of
....,. \'
o Township,
ew, Officers
e, French a spenoer
.
Amended Complaint, all Defendants have filed preliminary
Objections. The Amended Complaint contains in Count I - Assault
and Battery against the six police officers, in Count II
Intentional Infliction of Emotional Distress against the six
police officers, and Count III - Violation of Civil Rights was
asserted against the numerous municipalities as well as the
six police officers involved.
On March 23, 1993 at approximately 8:30 p.m., Defendants,
pollee officers, surrounded the Plaintiff, Russell C. Fickes,
at the Dumphy I s Tavern and Restaurant, East Pennsboro Township,
Cumberland County, Pennsylvania. The police officers believed
the Plaintiff, Russell C. Fickes, had a hand gun.
The Defendants, police officers, exerted excessive physical
force upon the Plaintiff. The police officers drew their
firearms and pointed them at the Plaintiff. The Plaintiff
cooperated with the police officers by placing his hands outside
of the driver's side window. The Defendants, police officers,
physically pulled the Plaintiff through the driver's side window
by pulling his arms, said window was not completely down, thereby
breaking the window as well as causing physical injury to the
Plaintiff. The Plaintiff was propelled approximately four C 4)
feet forward and onto the stone surface of the parking lot.
While the Plaintiff was face down on the stones of the parking
-2-
"
Act of October 5, 1980, P.L. 693, ~221(1), 42 Pa. C.S.
S8541.
Exceptions to governmental immunity are also provided for
in the Act:
(a) Liability Imposed. A local agency shall be
liable for damages on account of any injury to a
person or property within the limit set forth in
this Subchapter if both of the follOWing conditions
are satisfied and the injury occurs as a result of
one of the acts set forth in Subsection (b) of Section
8542 :
( 1 ) The damages would be recoverable under common
law or a statute creating a cause of action if the
injury were caused by a person not having available
a defense under Section 8541 (relating to governmental
immunity generally) or Section 8546 (relating to
defense of official immunityl; and
(2) The inj ury was caused by the negligent acts
of the local agency or an employee thereof acting
within the scope of his office or duties with respect
to one of the categories listed in Subsection(b).
As used in this paragraph, "negligent acts" shall
not include acts or conduct which constitute a crime,
actual fraud, actual malice or willful misconduct.
The Defendants correctly anticipate that the Plaintiff
interposes the exception of governmental immunity for a
governmental employee and the municipal Defendants set forth
in 42 Pa. C.S.A. S8550, which provides:
"In any action against a local agency or employee
thereof, for damages on account of an injury, caused
by an act of the employee which it is judicially
determined that the act of the employee caused the
injury, and that such act constituted a crime, actual
fraud, actual malice, or willful misconduct...the
immunity provision shall not apply."
-6-
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42 Pa. C.S.A. ~8550.
It has been held that, "While Section 8550 indeed waives
four specific immunities for willful misconduct, each of the
waived immunities exposes municipal employees to personal
liability without dissolving the shield of general immunity
retained by municipalities." Steiner v. city of Pittsburgh,
97 Pa. Commw. 440, 445, 509 A.2d 1368, 1370 (1986), quoting
Buskick v. Seiple, 560 F. Supp. 247, 252 (E.D. Pa. 1983).
The acts of the police officers constitute a crime under
the Pennsylvania Crimes Code, Section 2909, 18 Pa, C.S.A. ~2902,
which provides that a person commits a misdemeanor of the first
degree if he knowingly restrains another unlawfully in
circumstances exposing him to risk of serious bodily injury
or holds another in a condition of involuntary servitude. Also
excessive force, if not justified, is assaultive in nature.
In the present case, the various police officers received
a report from a citizen who i.ndicated that there was an
individual possessing a firearm who was possibly intoxicated.
As a result of this call, the West Fairview police officers
obstirved the truck and basically, did not detect any erratic
driving 8S it proceeded north on Routes 11 and 15 in the Borough
of West Fairviewl however, one off iC8r did indicate that he
-7-
"
felt there was an abrupt turn onto Hummel street in the Borough
of East pennsboro Township. However, the police officers did
not stop the operator of the truck.
Despite the lack of probable cause to stop the truck, the
police officers continued the pursuit of the vehicle until it
was legally parked in the Dumphy' s parking lot, at which time
the numerous police officers positioned themselves, one on the
right side of the truck, one on the left side of the truck,
and one in front of the truck. One police officer was shining
his lights into the driver's side in front of the truck. Upon
the arrival of several other police cruisers and upon the truck
being complet;ely surrounded by the police officers and their
vehicles, the Plaint! ff, Russell C. Fickes was ordered to put
his hands out of the driver's side window and he complied with
said order. Immediately thereafter, Officer French of the
Borough of West Fairview Police Department withdrew his sidearm
and was holding it and pointing it at the direction of the
Plaintiff's head, the right side of his head approximately three
feet away. Another officer placed himself on the left Bide of
the Plaintiff with his sidearm drawn and pointed on the left
Bide of the head of the Plaintiff, approximately three feet
away. A third police officer, Officer Todd Bashore of the East
pennsboro TownShip Police Department was immediately in front
of the Plaintiff with his shotgun pointed at the front of the
-8-
"
Plainti ff' s truck approximately eight feet away. At this time,
Officer French ordered that the Plaintiff be pulled through
the window and in fact, the Plaintiff was pulled through the
driver's side window while the glass window was up approximately
six or eight inches, shattering the glass, and pulling the hands,
arms and back of the head of the Plaintiff and clothing of the
Plaintiff, propelling him approximately four feet forward and
then downward onto the stone surface of the parking lot. The
pOlice officers' conduct and actions resulted in substantial
physical inj ury to the Plaintiff and damage to the property
of the Plaintiff.
The exception provisions provide for willful misconduct.
The police officers may have been acting under orders, duty
or instructions; however, once the Plaintiff was completely
surrounded by the police officers, with at least three weapons
pointed at the Plaintiff, and the Plaintiff's hands were outside
of the driver's side window, there was no need for the police
officers to continue with such excessive force by pulling the
Plainti ff through the driver' s side window causing substantial
physical injury.
At this point, the Plaintiff is not able to identi fy the
numerous police officers who threw him to the ground after he
was removed from his vehicle, approximately a four feet drop,
-9-
",
and thereafter each of his extremities were held and one
officer's knee was placed in his back while his arms were forced
behind him and handcuffed. Even though the Plaintiff was yelling
that his arm was broken and that he was in pain, the police
officers continued to use excessive force on the Plaintiff,
threw him in the back of the police cruiser, head first where
he remained until they arrived at the Holy Spirit Hospital for
emergency treatment for the injuries sustained by the Plaintiff.
Willful misconduct, for the purposes of Pennsylvania Tort
Law, has been set forth by our Supreme Court to mean acts which
the actor desired to bring about and the actor should realize
the result would follow or at least would be aware that certain
results were substantially certain to follow. Evans v.
~ladelphia Transportation Company, 418 Pa. 567, 21~ A.2d
440, (1965).
The Defendants attempt to allege in their Brief that the
Plaintiff's Complaint alleges nothing more than a standard
investigatory stop and search made by the individual police
officers; however, the facts of this case evidence much more
than a simple investigatory stop and search. The police officers
did not stop the Plainti ff, even though they were following
his vehicle after they received a call of a man with a firearm.
The Plaintiff had reached his destinaUon, and then the police
offioers deprived him of movement.
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,
d. Extreme and outrageous conduct. The cases
thus far decided have found liability only where
the Oefendant I s conduct has been extreme and
outrageous. It has not been enough that the Defendant
has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been
characterized by "malice," or a degree of aggravation
which would entitle the Plaintiff to punitive damages
for another tort. Liability has been found only
where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation
of the facts to an average member of the community
would arouse his resentment against the actor, and
lead him to exclaim, "outrageous I"
The liability clearly does not extend to mere
insults, indignities, threats, annoyances, petty
oppressions, or other tri viali ties. The rough edges
of our society are still in need of a good deal of
filing down, and in the meantime, Plaintiffs must
necessarily be expected and required to be hardened
to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate
and unkind. There is no occasion for the law to
intervene in every case where some one I s feelings
are hurt.
Restatement (Second) of Torts ~46 cmt. d (1965)
The conduct of the Defendants, police officers in the present
case far exceed insults, indignities, threats, annoyances, petty
oppressions,
other
tri viali tiel!!.
The
Plaint! ff
was
or
substantially physically injured with a fractured arm and elbow,
and to the present day, tho Plainti ff has lost a certain
percentage of usage of his right hand as a result of the police
officers' conduct. In addition to this permanent injury, the
Plaintiff sustained fractured ribs and a black and blue mark
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,
from hi. buttocks to his foot. The Amended complaint of the
Plaintiff clearly sets forth the extreme and outrageous conduct
of the Defendants, police officers, and hence, it is respectfully
suggested that all Defendants' preliminary Objections to
Intentional Infliction of Emotional Distress be dismissed.
E. WHETHER PLAINTIFF I S COMPLAINT FAILS TO STATE A CLAIM
OR CAUSE OF ACTION FOR PUNITIVE DAMAGES?
Suggested Answer: No
Plainti ff I S Amended complaint alleges punitive damages
against only the Defendants, police officers, and it is not
averred against any of tho numerous Boroughs and Townships listed
as Defendants. The Supreme Court has held that punitive damages
are available, as to individual Defendants, in appropriate cases.
Smith v. Wade, 461 U.S. 30, 16, 103 S. ct. 1625, 1629, 75 L.Ed.
2d 632, 639 11983).
In order to make a claim for punitive
damages under Section 1983, the plaintiff must show a "reckless
or callous disregard" for his or her rights, as well as
intentional violations of Federal Law. Smith v. Wade, 461 U.S.
30, 51, 103 S. ct. 1625, 1629, 75 L.Ed. 2d 632, 639 11983).
By requesting punitive or exemplary damages, the Plainti ff
is seeking compens~t.ion for the outrageous conduct of the
Defendants. Pennsylvania has adhered to this element of damage
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and has specifically authorized punitive damages, not in the
sense intended as compensation to the injured Plaintiff, but
rather as a penalty.
322 Superior ct. 348, 469 A.2d 655 (1983).
Martin v. Johns-manville. Corporation.
The averments that must be considered in permitting punitive
damage claims are facts that go to the character of the offending
act itself together with all the circumstances including the
intentions or motive of the act or, the relationship between
the parties, the outrageousness of the act, the recklessness
or indifference exhibited by the act. All of these things the
Plaintiff has averred in his Amended Complaint.
Hence, it
is suggested the Defendants' Preliminary Objections to dismiss
the claim for punitive damages be dismissed.
F. WIIETHER PLAINTIFF I S COMPLAINT FAILS TO STATE A CLAIM
OR CAUSE OF ACTION UNDER 42 U.S.C. Section 1983 UPON WHICH RELIEF
CAN BE GRANTED?
Suggested Answer: No
Defendants complain that Plaintiff's Complaint fails to
state a claim under Section 1983.
The Defendants cj, te Graham
v. Conner. 490 U.S. 386 (1989) and properly point to the la",
that all use of force has to be analyzed under the Fourth
Amendllent since a specific right is involved and thia right
111 to be given a test of reasonableness. Further, the Fourth
-15-
"
Amendment requires that in this case there be an inquiry as
to whether the officers acted reasonably and whether there were
any other alternatives available.
The police ofUcers had not observed any violation of the
Pennsylvania Motor Vehicle Code. They had not observed any
felony being committed in their presence and had only received
hearsay information concerning possible alleged misdemeanors.
The pOlice officers viewed the vehicle operated by the Plaintiff
and decided to track it and stop it. There was no prObable
cause for any stop and search and detaining. No misdemeanor
had been committed in the presence of the officers, nor did
they have any information as to possible felony arrests.
The police officers did not have sufficient articulable
factll to IItop the vehicle and to seize the Plainti ff. The
detaining of the Plaintiff at Dumphy's Tavern and Restaurant
amounted to an improper search and seizure. The officers had
no information as to any felony actll nor did they observe any
m1l1demeanors.
As to excessive use of force by the Defendantll and ulling
the reasonableness test, the police officers had many
alternat1vell to utilize other than forCibly extracting the
Plaintiff from his vehicle. The police officers could have
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"
.
ordered him to throw the weapon out of the vehicle, could have
ordered the Plaintiff out of the vehicle, the police officers
could have handcuffed the hands of the Plaintiff while they
were hanging outside of the driver's side window. The excessive
force speaks for itself. The officers grabbed the hair, head
and back of the clothing, and body of the Plaintiff and propelled
him through the vehicle window, shattering the heavy glass
window, f.orcing the Plaintiff from the vehicle down onto a
parking lot approximately four (4) feet below, breaking various
bones in his body and putting their knees into his back and
then handcuffing him, notwithstanding the broken arm.
'S to the Defendants' complaint that there are no specific
facts concerning Officer Shumaker's
conduct and actions,
discovery will provide the Plaintiff with specific identity
of each police officer and their specific acts. At this time,
the Plaintiff is unaware as to which police officers did what
to him.
G. WHETHER COUNT III OF PLAINTIFF'S AMENDED COMPLAINT
FAILS TO ALLEGE ANY FACTS ESTABLISHING AN UNCONSTITUTIONAL
POLICY, PRACTICE OR CUSTOM ON THE PART OF DEFENDANTS, EAST
PENNSBORO TOWNSHIP, BOROUGH OF WEST FAIRVIEW?
Counsel for the Defendants in arguing that the Amended
Complaint fails to state a claim pursuant to Section 1983 is
nlisguided.
Local government entity is liable when a violation
of Section 1983 rights is committed by its employees.
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I:l.r.ndants' Brief is sound when reference is made to pembaur
v, Citv of Cincinnati. 475 U.S. 469, 478-79 (1985), that
execution of a government policy made by its employees carrying
out its official policy inflicts injury upon another that a
government entity may bQ responsible under Section 1983.
The. Plaintiff refers to the doctrine of res ipsa loquitur
in that the officers who all receive training under the Municipal
Police Ilducation And Training Law, Act No. 120 of 74, 53 P.S.
Section 740 and have received training through the various
municipalities, nonetheless violated the civil rights of the
Plaintiff. It has been stated that the officers acted properly
and by infarence would be within their training. Their training
wa. defect! ve and improper or it could not have produced the
resu It of the inf 1 iction of physical harm upon the Plainti ff,
Ru..ell C. Ficke..
The training and control was deficient in that alternatives
were not: addreued in handling this type of stop. The police
ofUcers could have ordered the Plaintiff to throw the weapon
out of the vehicle, could have ordered the Plaintiff out of
the vehicle, or the police officers could have handcuffed the
hand. of the Plaintiff while they were hanging outside of the
driver's .ide window.
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The police officers were not even trained in the law as
to proper arrest and seizure of an individual. It is evident
the police officers were no~ trained in that they violated the
Pennsylvania Law when t:hey pursued the Plaintiff and observed
no illegal conduct on his part. They had no information as
to the commission of a felony nor did they witness a misdemeanor
or indeed did they witness any violation of the Motor Vehicle
Code.
The lack of training and the lack of instruction has made
the various local governments liable as this lack of training
and supervision has permitted the constitutional violations
against the Plaintiff, Russell C. Fickes.
In addition, it is not illegal to carry a firearm in a
vehicle if one has a license and/or it is being transported
for lawful purposes. The police officers had no knowledge of
any of the facts concerning the firearm. Nonetheless, they
decided to pursue, detain, search and seize the Plaintiff.
This also evidences a lack of municipal training. Hence, the
government enti ties are liable for violation of Section 1983
claims.
BY:
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4, Plaintiff's Complaint furthcr allcaed that prior to being stopped by various law
cnforccmcnt ofl1cials, a citizen complaint was rcccived about a person operatina a motor
vchiclc undcr thc influencc and that said individual was carrying a semi-automatic pistol.
5. Plaintiff's Complaint furthcr avcrrcd that some combination of law enforccment
officials stopped Plaintiff, withdrew their sidearms, ordered Plaintiff from his motor vchicle.
and after Plaintiff did not comply with this order, Dcfendants pulled Plaintiff through thc
drivcr's sidc window of Plaintiffs motor vehicle thereby causing the injuries and damsge
averred in Plaintiff's Complaint.
6. Plaintiff's Complaint attempted to assert state tort law claims sounding in assault
and battery, intentional inflection of emotional distress and fallle imprisoiunent against all
Defendllllts as well as a claim pursuant to 42 V.S.C. ~1983 for alleged violations of his Fourth,
Fifth, and Eighth Amendment rights.
7. Plaintiff's Complaint sought compensatory and punitive damages aaainst all
namcd Defendants.
8. On or about December 28, 1994, Defendants filed Preliminary Objections to
Plaintiffs Complaint in the nature of a demurrer or in the alternative Motion for a more
specific pleading.
9. Prior to oral argument on the Preliminary Objections. counsel entered into a
stipulation whereby Defendants' various Preliminary Objections were withdrawn and Plaintiff
was aft'orded an opportunity to file an Amended Complaint corrccting the deficiencies in the
original pleading.
I
PlaintilTs Complaint avers that on or about March 23, 1993 at approximately 8:30 p.m"
Plaintiff was stopped by various law enforcement officers while operating his motor vehicle
near Dumphy's Tavern and Restaurant. The Complaint further alleged that prior to being
stopped by various law enforcement officials, a citizen complaint was receive about a person
operating a motor vehicle under the influence and that said individual was carrying a semi.
automatic weapon in his vehicle. PlaintilTs Complaint further averred that some combination
of law enforcement officials stopped Plaintiff, withdrew their side arms, ordered Plaintiff from
his motor vehicle, and after Plaintiff did not comply with this order, Defendants pulled Plaintiff
through the driver's side window of PlaintilTs motor vehicle. thereby causing the injuries and
damages averred in Plaintiffs Complaint. The Complaint attempted to assert state tort law
claims sounding in assault and battery. intentional infliction of emotional distress and false
imprisonment against all Defendants, as well as a claim pursuant to 42 V.S,C. ~ 1983 for
alleged violations of his Fourth, Fifth, and Eighth amendment rights. Plaintiffs Complaint
sought compensatory and punitive damages against all named Defendants.
On or about December 28, 1994, Defendants filed Preliminary Objections to PlaintilTs
Complaint in the nalUl'e of a demurrer or in the alternative. a motion for a more specific
pleading, Prior to 0101 aJ'llument on the Preliminary Objections. counsel entered into a
stipulation whereby Defendant's various Preliminary Objections were withdrawn and Plaintiff
was afforded an opportunity to file an Amended Complaint correcting the deficiencies in the
original pleading,
On or about February 17, 1995. Plaintiffs counsel served upon defense counsel an
Amended Complaint which was alla~hed as I\xhibit "A" to Defendants' Preliminary ObjectiClns
to Plaintiffs Amended Complaint. The Amended Complaint alleges claims for assault and
simply identifies who is beinS sued. i.e" the official personally (individual capacity) or the
iovernmental aaency that employs him (otlicial capacity). To the extent that the Section 1983
claims contained in Count 111 of Plaintirrs Amended Complaint can be construed as official
capacity claims against the individual police ofticen, then said claims merge, as a matter of
law, with the ~ 1983 claims against East Pennsboro Township and the Borough of West
Fairview.
A suit under Section 1983 against a municipal ofticer in his ofticial capacity is in
actuality a suit directed against the municipality that the officer represents. Kentuckv v.
QlIhNn, 473 U.S. 159, 165 (1985); Monell v. Department of Social Services, 436 U.S, 658,
691 (1978). Because a suit against one is the functional equivalent of the other, there is not
reason for Plaintiff to pursue official capacity defendants if the municipality itself is a party,
Graham. 473 U.S, at 166; Brandon v. Holt. 469 U.S, 464, 471-72 (1985).
A number of courts have ruled that it is redundant to allow a law suit to proceed against
both the municipality and the individuals in their official capacity. ~,Oral1l1e v. Countv of
Suffolk" 830 F. Supp, 701, 707 (E.D.N.Y. 1993) (claims against county executives and
lellislators in their ofticial capacity to be dismissed because the county was named as a
defendant); Busbv v. City of Orlando" 93. F.2d 764 (111h Cir. 1991) (affirmin8 direct the
verdict in favor of city official where the city remained a defendant); and Kohn v. MuQl, 776
f'.Supp. 348 (N,D.\II. 1991) (dismissinll suits against individual defendants in their official
capacity because the municipality was also a named dofendan\.)
In this case, to the exlent that Count 111 of Plaintiff's Amended Complaint can be
construed allainst the police ofticers in their official capacity, said claims are redundant with
the . 1983 claims allainst East Pennsboro Township and the Boroullh of West Fairview. The
West Fairview were "on actual or constructive notice" of the need to provide additional training
to their officers on the proper procedures to etTectuate an investigatory stop and arrest of an
inebriated and uncooperative individual. To the contrary, Plaintiff's Amended Complaint
asserts a single incident of alleged unconstitutional activity and then makes the quantum leap
in illogic and avers that municipalities have an unconstitutional policy of failing to adequately
train and/or supervise their officers. Count III of Plaintiff's amended complaint fails to aver
the materials fact upon which the ~ 1983 claim against the Municipal Defendants is based
consequently, Count III must be dismissed with prejudice agains Defendants, East Pennsboro
Township and the Borough of West Fairview.
Various federal courts have refused to impose ~ 1983 liability on a municipality
predicated on a failure to train and/or supervise under similar circumstances. In Tl\Pia v. City
of Greenwood" 96S F.2d 336 (7th eir, 1992). the district court had entered judgment n.o.v in
favor of the municipality and the seventh circuit affirmed. The court noted that in Indiana
police officer training was governed by state law and there was no evidence that the city had
failed to meet the state minimwn standards for training its police officers. Moreover, the court
ruled that the single incident of a warrantless search alleged in that case wasn't enough to
impose ~ 1983 liability on the city for failure to adequately train and/or supervise its officen,
In Graham v. Sauk Prairie Police CommiW2n, 915 F,2d 108S (7th Cir. 1990), the
Seventh Circuit affirmed an award of summary judgment because a jury could not reasonably
conclude that the need for further investigation into the police officer' s background (he
sutTered from chronic paranoid schizophrenia) was so obvious and the lack of further
investigation so likely to resull in the violation of constitutional riihls that the defendants were
deliberately indifferent to the rights of their citizens. Additionally, there was no evidence
(or if\iuries sustained to persons or property in accordance with one of the specific exceptions
listed within the act." W.alsh v. City of Philadelphia. 526 Pa. 227, 239, 585 A,2d 445, 451
(1991). Moreover, the exceptions to governmental immunity are to be narrowly construed,
"given the expressed legislative intent to insulate political subdivisions from tort liability."
Love v, Citv of Philadelphia" 518 Pa, 370,374,543 A.2d 531, 532 (1988). Since the claims
asscrted in Counts 1 and 11 of Plaintiffs Amended Complaint are intentional torts, they do not
fall within the purview of any of the exceptions to immunity enumerated in Section 8S42(d)
of the Act.
Pursuant to Section 8550 of the Act, the police officers are immune from liability as
a matter of law unless the complained of conduct rises to the level of a crime, actual fraud,
actual malice, or willful misconduct. In Williams v. Citv of PhiladelDhia. 131 Pa,Commow,
7 I, 569, A.2d 4 I 9 (1990), the Court ruled that even though the conduct of emergency medical
technicians in not taking the decedent, who was intoxicated and had fallen down some stairs,
immediately to the hospital exemplifies a reckless regard for the man's life, it did not constitute
willful misconduct pursuant to Section 8550, See also Simmons v. Township of Moon. 144
Pa. Commow. 198, 601 A.2d 425 (1991) (county detectives immune from liability on claim
that arrestee committed suicide following unlawful interrogation by the officers,)
In this case, Plaintiffs Amended Complaint alleges that the officers effectuated an
investigatory stop of the Plaintiffs vehicle due to a citizen complaint of a drunken driver with
a firearm, The Plaintiffs vehicle was stopped, he failed to cooperate with the police officers
and had to pull him from the vehicle to effectuate his arrest. Plaintiffs Amended Complaint
on its face does not pleilld any facts which would establish that the officers actions constituted
willful misconduct pursuant to Section 8550. Moreover, pursuant to 18 Pa,C.S, Section 508(a)
FACTUAL BASIS OF HIS CLAIMS.
Pennsylvania is a fact pleading jurisdiction, Alpha Tau Omelia Fratemitv v. Universitv
ofPennsvlvania. 318 Pa.Super. 293, 298,464 A.2d 1349 1352 (1983); Pa.R.Civ.P. Rule 1019.
The Complaint must therefore not only give the defendant notice of what the plaintiff's claim
are and the grounds upon which they rest, but it must also formulate the issues by summarizing
those facts essential to support the claims. AlDha Tau Omelia. Supra,
In the event that moving defendants' demurrer is overruled, then the plaintiff should be
required to file more specific pleading setting forth with particularity the facts in support of
his claim that East Pennsboro Township and the Borough of West Fairview failed to adequately
train, supervise, and/or discipline their respective police officers. The second Amended
Complaint should also specify the precise deficiencies in the training afforded the individual
officers and should also specify the factual basis upon which this Honorable Court could find
that Plaintiffs alleged injuries were caused by an unconstitutional policy practice or custom
on the part of the municipal defendants. The second Amended Complaint should also set the
actions of each individual officer which warrant imposition of punitive damages.
IV, CONCLUSION.
For the reasons advanced herein, Defendants respectfully request that this Honorable
Court dismiss Plaintiffs claims against Defendants East Pennsboro Township and the Borough
of West Fairview; dismiss the claims for assault and battery and intentional infliction of
emotional distress against Officers Shuey, COllon, Bashore, French, and Spencer; dismiss the
1983 due process claim against those officers; dismiss the ~1986 official capacity claims
allainst the individual oflicers and dismiss the ~ 1983 punitive damalles against those officers,
In the alternative, Plaintiffs shall be required to file a second Amended Complaint setting forth
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 6040 CIVIL TERM 1994
RUSSELL C" FICKES,
PLAINTIFF
EAST PENNSBORO TOWNSHIP,
BOROUGH OF WEST FAIRVIEW
BOROUGH OF WORMLEYSBURG,
PATROLMAN MATTHEW T,
SHUEY, OFFICER MICHAEL
J, COTTON, PATROLMAN TODD:
BASHORE, OFFICER ROBERT
SHUMAKER, PATROLMAN JAMES:
FRENCH, and OFFICER
SPENCER,
CIVIL ACTION - LAW
DEFENDANTS
JURY TRIAL DEMANDED
>>IPENDANTS', BOROUGH OP WORMLIYSBURG AND
OPPICIR ROBIRT SHUMAXIR, BRI.P IN SUPPORT OP THIIR
PRILIMINARY OBJ.CTIO~10 PLAINTIPP'S AMKNDI>> COMPLAINT
Defendant:s, Borough of Wormleysburg and Officer Robert
Shumaker, by and through their attorneys, Marshall, Dennehey,
Warner, Coleman & Goggin file this Brief in Support of their
Preliminary Objections to Plaintiff's Amended Complaint and in
support thereof aver as follows:
I. tACTS AND PROCIDURAL HISTORY
This civil action was commenced by Russell C. Fickes, by
filing a Writ of Summons on or about October 20, 1994 against,
inter aliA, the Borough of Wormleysburg. Pursuant to a Rule to
file a Complaint, on or about December 6, 1994, plaintiff filed a
Complaint containing four Counts and adding Officer Michael J,
Cotton, Patrolman Todd Bashore, Officer Robert Shumaker,
Patrolman James French and Officer Spencer as Defendants in thie
litigation,
.
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Plaintiff's original Complaint attempted to assert state
tort law claims sounding in assault and battery, intentional
infliction of emotional distress and false imprisonment against
all Defendants. Plaintiff's Complaint also contained a claim
pursuant to 42 U,S,C, S 1983 for alleged violations of his
Fourth, Fifth and Eighth Amendment rights,
On or about December 28, 1994, all Defendants filed
Preliminary Objections to Plaintiff's Complaint in the nature of
a demurrer or, in the alternative, a Motion for a more specific
pleading, Prior to Oral Argument on the Preliminary Objections.
all counsel entered into a stipulation whereby Defendants'
Preliminary Objections were withdrawn and Plaintiff was afforded
an opportunity to file an Amended Complaint correcting the
deficiencies in this original Complaint,
On or about February 17, 1995, Plaintiff's counsel served
upon all defense counsel an Amended Complaint, A true and
correct copy of Plaintiff's Amended Complaint is attached to all
Defendants' Preliminary Objections to Plaintiff's Amended
CompVlint as Exhibit "A", Plaintiff's Amended Complaint outlines
, claimofor assault and battery (:'"lUnt I), intentional infliction
of emotional distress (Count II), and a claim pursuant to 42
U,S.C, 1983 for alleged violations of his Fourth Amendment Rights
as well as hie procedural and substantive due process rights
(County III) against Officers Shuey, Cotton, BaAhore, Shumaker,
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French and Spencer. plaintiff's Amended Complaint also contains
a demand for punitive damages,
In response to the filing of Plaintiff's Amended Complaint,
on or about March 8. 1995, all Defendants filed Preliminary
Objections to Plaintiff's Amended Complaint, Defendants, Borough
of Wormleysburg and Officer Robert Shumaker, now file this Brief
in Support of the Preliminary Objections to Plaintiffs' Amended
Complaint.
II. OUll8TION8 PRUmn'ID
A, STANDARD OF REVIEW
B. WHETHER DEFENDANTS, BOROUGH OF WORMLEYSBURG AND OFFICER
ROBERT SHUMAKER, ARE IMMUNE FROM LIABILITY AS A MATTER
OF LAW ON THE CLAIMS ASSERTED IN PLAINTIFF'S COMPLAINT?
[SUGGESTED ANSWER: YES.]
C, WHETHER OFFICER ROBERT SHUMAKER, IN HIS INDIVIDUAL
CAPACITY IS IMMUNE FROM LIABILITY AS A MATTER OF LAW ON
THE CLAIMS ASSERTED IN PLAINTIFFS' COMPLAINT?
[SUGGESTED ANSWER: YES,]
D. WHETHER PLAINTIFF'S COMPLAINT FAILS TO STATE CLAIMS OR
CAUSES OF ACTIONS SOUNDING IN ASSAULT AND BATTERY UPON
WHICH RELIEF CAN BE GRANTED?
[SUGGESTED ANSWER: YES.]
E, WHETHER PLAINTIFF'S COMPLAINT FAILS TO STATE A CLAIM OR
CAUSE OF ACTION FOR INTENTIONAL INFLICTION FOR
EMOTIONAL DISTRESS UPON WHICH RELIEF CAN BE GRANTED?
[SUGGESTED ANSWER: YES.]
F, WHETHER PLAINTIFF'S COMPLAINT FAILS TO STATE
A CLAIM OR CAUSE OF ACTION UNDER 42 U,S,C. S
1983 UPON WHICH RELIEF CAN BE GRANTED?
[SUGGESTED ANSWER: YEs.1
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.
G.
WHETHER PLAINTIFF'S COMPLAINT FAILS TO STATE
A CLAIM AND/OR CAUSE OF ACTION FOR PUNITIVE
DAMAGES?
[SUGGESTED ANSWER: YES,]
III. ...m1MII1oI'I'
A. 8TANDAItD or IlIVIIW
Pursuant to Pennsylvania Rule of Civil Procedure ~028, a
complaint should be dismissed where plaintiff fails to, state a
claim upon which reli~f can be granted, Preliminary Objections
in the nature of a demurrer admit as true all well and clearly
pleaded facts and all inferences fairly deducible therefrom, but
conclusions of law and unjustified inferences are not admitted,
aAA GreenSDan v. U.S, Automobile Assn., 324 Pa. Super. 315, ---'
471 A.2d 856, 858, (1984)" The trial court's role in ruling on a
demurrer is to determine whether or not the facts pleaded are
legally sufficient to enable the action to continue. Colev v,
East Noriton TwshD., 78 Pa. Commw, 11, ____, 466 A.2d 765. 766
(1983), Where there is no dispute over the facts, but a dispute
over the law governing the case, it is appropriate for the court
to interpret the applicable law and determine the merits of a
plaintiff's claim, ~. at ____ 466 A.2d at 767,
Pennsylvania Rule of Civil Procedure of 1030, provides, in
pertinent part, "all affirmative defenses, including, but not
limit to ,,' immunity from suit .,. sh.all be pleaded in a
responsive pleading under the heading of 'New Matter' ,"
Notwithstanding the language of Rule 1030, in Ziccardi v. SCh091
-4-
..
.'
\
..
..
..
.
.
District of Philadelchia, 91 Pa, Commw, 595, 498 A.2d 452 (1985),
Commonwealth Court held that the defense of immunity from suit
~ be raised by way of preliminary objection in the nature of
demurrer where the defense is apparent on the face of the
complaint,
Commonwealth Court later explained that the defense of
governmental immunity is properly raised by preliminary objection
when "a cause of action is made against a governmental body and
it is apparent from the face of the pleading that the cause of
action does not fall within any of the exceptions to governmental
immunity." Wurth v, City of Phila., 136 Pa, Commw, 629, 638, 584
A.2d 403, 407 (1990), In this case, it is appropriate for all of
the defendants to raise governmental immunity by way of
preliminary objection since it is apparent from the face of
plaintiff's complaint that plaintiff's claims do not fall within
any of the eight enumerated and specifically construed exceptions
to governmental immunity,
B. DI'INDANTS, BOROUGH 0' NORNLIYSBURO AND O"ICIR ROBI.T
SJlUMAJtIR, AllI IMMUNIl 'ROIl LIABILITY AS A NATT.. 0' LAW
AND 'LAINTI'" S CLAIMS AGAINST ALL 0' TN. MUNICI'AL
D.'INDANTS MUST BI DISMISSID WITH 'RIJUDIClo
Defendant, Borough of Wormleysburg, avers that it, as well
as all other municipal defendants, are immune from plaintiff's
tort claims pursuant to the provisions of the Political
Subdivision Tort Claims Act, 42 Pa. C.S.A, S 8541 ~ acg. The
Political Subdivision Tort Claims Act, (hereinafter "the Act"),
-5-
.
.
"I
.
.
is a blanket statutory provision of immunity from suit on state
tort claims for "local agencies". The Act mandates that "except
as otherwise provided in thio subchapter, no local agency shall
be liable for any damage on account of an injury to a person or
property caused by an act of a local agency or an employee
thereof or any other person," ~ 42 Pa" C,S.A, S 854l.
A "local agency" is defined earlier in the same statute as
"a government unit other than the commonwealth government." ~
42 Pa, C.S,A. S 8501. Without a doubt the Borough of
Wormleysburg is a "local agency" entitled to all immunity the Act
offers in the circumstances, ~ Deluca v, White Marsh TwshD.,
Pa. Commw. , 526 A,2d 456, (1987) (a township is by
definition a "local agency" for purposes of the Act,)
The Pennsylvania Supreme Court has characterized the purpose
underlying the Act as the insulation of "political subdivisions
from liability, exceot for injuries sustained to persons or
property in accordance with one of the soecific exceptions listed
within the Act." Walsh v. City of Phila., 526 Pa, Commw, 585,
585 A,2d 445, 451 (1991) (emphasis added). In considering
whether an injury occurs within any of the eight exceptions to
immunity enumerated in S 8542 (b), the Supreme Court has held
that all of the exceptions must be narrowly interpreted given the
express legielative intellt to insulate poUt:ical subdivisions
from tort liability,
-6-
.
-,
.
.
Section 8542 s~~cifies that a local agency may only be
liable if a plaintiff's tort injury is caused by negligent acta
of that local agency, or its employees, which fall within one of
the eight narrowly construed exceptions. The eight c~:egOrieS irr-JI,,'~__,
which liability may be imposed on a local agency are ~hicle' ~,~
liability; care, custody or control of personal property; real
.
property; trees, traffic co~trol and \1~hting; u~ility service
, I'.
facility; streets; sidewalks; and care, custody or control of
,
t. ,r
animals, 42 Pa, C,S,A, S 8542,
A review of Plaintiff's Amended Complaint makes it readily
r--,
apparent that the conduct complained of does not fall within the
purview of any of the eight exceptions to governmental immunity
specified in S 8542 (b), Consequently, the Borough of
Wormleysburg is immune from liability as a matter of law on
plaintiff's claims for assault and battery and intentional
infliction of emotional distress,
The Borough of Wormleysburg anticipates that plaintiff may
attempt to argue that his claims against the municipal defendants
are proper under a special exception for "wilful misconduct"
found at 42 Pa, C,S.A S 8550, The wilful misconduct exception
provides:
In any action against a local agency or employee
thereof for damages on account of an injury caused by
the act of the employee on which it is judicially
determined that the act of the employee caused the
injury and that such constituted a crime, actual fraud,
actual malice or wilful misconduct, the provisions of
-7-
.
.
,
.
sections 8545 ..", 8546 ,." 8548 "., and 8549 ,..,
ehall not apply. 42 Pa, C,S,A. S 8550"
However, the other statutory sections referred to by I 8550
are not applicable in instances of crime, actual fraud, actual
malice or wilful misconduct pertaining to the imposition of
personal liability on an employee of a local agency, rather than
imposing u'ability on the agency itself, The supreme Court of
pennsylvania has made it clear that the extent of the eight
exceptions to section 8542 (b) to the absolute rule of
governmental immunity, "must be narrowly interpreted given the
express legislative in:ent to insulate political subdivisions
from tort liability," Mascaro v, Youth Studv Ctr., 514 Pa" 351,
, 523 A.2d 1118,1120 (1987); Love v, Citv of Phila", 518
Pa, 370, 543 A,2d, 531, (1988).
Even if plaintiff alleges that the acts of Officer Shumaker,
an employee of the Borough of Wormleysburg were done wilfully,
plaintiff still cannot recover from the Borough, A municipal
entity is immune from liability even if one of its employees
committed a wrongful act through wilful miaconduct, Kuehner v"
Parsons, 107 Pa, Commw, 61, 65, 527 A,2d 627, 629 (1987), AQR.
QIn" 519 Pa, 6~6, 538 A,2d 879 (1987). Therefore, the Borough
of Wormleyeburg cannot be held liable regardless of whether any
of the actions alleged by Plaintiff were done by Officer Shumaker
in .~.rrlur manner, Section 8550 explicitly precludes actions
aga~t a local agency for its employees' wilful misconduct.
-8-
,
.
.
Marco v. Citv of phila., 113 Pa" Commw. 574, 576 A"2d 1193
(1990). Notwithstanding the foregoing analysis, Plaintiff ha.
not even alleged facts to indicate that Officer Robert Shumaker
ever acted with malice or wilful misconduct,
The Borough of Wormleysburg maintains its position that
Officer Robert Shumaker did not act with malice or wilful
misconduct. However, "5 8550 only abolishes immunity for wilful
misconduct which pertains to local agency employees, as well as
additional restrictions placed on lawsuits against those
employees and does not affect the immunitv of local aaencies" "
(emphasis added), Kina v, Bre~, 115 Pa. Commw, 355, 362, 540
A"2d 976, 979 (1988), Therefore, it is without dispute that the
Borough of Wormleysburg is immune from liability for Plaintiff's
claims. whether they be claims sounding in negligence or
intentional tort.
C. o,nC.R RO".T SJlUMAUR IS IIOCUHII 'ROM
LIABILITY AS A ICATUR 0' LAN ON ft. CLAIMS
ASS..Tal IN PLAINTIf'S' COMPLAINT
Officer Robert Shumaker as an employee of a political
subdivision, and as such enjoys the same cloak of immunity as the
Borough of Wormleysburg, ~ 42 Pa, C,S.A, 5 8545 and S 8546" As
was previously discussed, the ~ time that an employee of a
political subdivision does not have immunity is when that
individual employee's conduct rises to a level of a crime, actual
fraud, actual m~lice or wilful misconduct. 42 Fa. C.S,A, I 8550.
Plaintiff does not allege that Officer Shumaker's actions
-9-
.
.
constituted a crime, actual fraud, actual malice or wilful
misconduct and thus, Officer Shumaker is immune from liability as
a matter of law on all of Plaintiff's claims. Plaintiff's
allegations, as contained in the Amended Complaint, only assert
conclusory allegations and unjustified inferences which are not
legally sufficient to withstand the scrutiny of these preliminary
objections. ~ GreenSDan v. U.S. Automobile Assn., SUDra, and
Cooley v. East Noriton Twsho., BUDra.
Plaintiff alleges that Officer Shumaker acted without
probable cause and due investigation, However, the "facts" set
forth in Plaintiff's Complaint allege nothing more than a
standard investigatory stop and search made by the individual
officers, Plaintiff does not allege, nor can he allege, that the
acts set forth in his Complaint constitute a crime, actual fraud,
actual malice or wilful misconduct on behalf of Officer Shumaker,
In the absence of any of the foregoing, an employee of a
governmental agency, in this case Officer Shumaker, has official
immunity available as a defense if his conduct was authorized or
required by law, S~ Lvnch v. Johnston, 76 Pa, Commw. 8, 463
A,2d 87, 90 (1983), Pursuant to Pennsylvania law, police officers
euch as Officer Shumaker, are "justified in the use of any force
which [they] believe to be necessary to effect the arrest." au
19 Pa, C,S,A. S 508 (a),
Officer Shumaker, as an employee of the Borough of
Wormleysburg, is liable for civil damages on account of any
-10-
.
.
.
injury to a person or property causp.d by his acts which are
within the scope of his official duties ~ to the same extent
as the Borough of Wormleysburg, and subject to the exact
limitations of 42 Pa. C,S.A. S 8545. ~ Simmons v, TwshD, of
t1ggD, 144 Pa, Commw. 198, 601 A,2d 425, 429 (1991). In order to
place Officer Shumaker outside the crotection of official
immunity, Plaintiff must allege that conduct on Shumaker's part
could be "judicially determined [to have] ". caused the injury
and ," constitute .,. wilful misconduct, as set forth in S
8550." l.I1, See also, Williams v, Citv of Phila., 131 Pa" Commw.
701, 569 A.2d 419 (1990). Plaintiff's Complaint fails to meet
this standard, Other than legally insufficient conclusory
allegations Plaintiff's Complaint contains no facts to support
his position, The behavior of Officer Shumaker, as described in
Plaintiff's Complaint, does not constitute wilful misconduct and
therefore, the immunity for Officer Shumaker is maintained,
Under 42 Pa, C.S.A. S 8545, an employee of a local agency is
liable for acts within the scope of the official duty only to the
extent that the local agency itself i9 liable, 42 Pa, C.S,A, S
8541 precludes liability of a local agency unless the allegedly
injurious act falls under one of the exceptions in 42 Pa. C.S"A.
8542, ~ Lancie v, Giles, 132 Pa, Commw. 255, 572 A,2d 827, 830
(1990), Officer Shumaker's conduct clearly does not fall within
one of th~ eight exceptions.
-1].-
.
"
.
Accordingly, Rince the Borough of Wormleysburg cannot be
held liable, then Plaintiff is precluded from any recovery from
Officer Shumaker as well. Also, plaintiff fails to allege facts
which would indicate that Officer Shumaker committed a crime,
actual fraud, actual malice or wilful misconduct and therefore.
42 Pa. C.S.A, S 8550 is not applicable in this case. Plaintiff's
claims against Officer Shumaker should be dismissed with
prejudice in their entirety, since Officer Shumaker is immune
from liability as a matter of law.
D. PLAINTII"" S COMPLAINT I'AILS TO STAT. CLAIMS
O. CAUS.S 0' ACTIONS SOUNDINO IN ASSAULT AND
BATT..Y UPON WHICH ..LI.I' CAN B. OIANT.D
plaintiff attempts to assert claims sounding in assault and
battery against Officer Shumaker, However, under Pennsylvania
law, a police officer is "justified in the use of any force which
he believes to n~cessary to effect the arrest." ~ 18 Pa,
C,S,A" S 508 (al. Plaintiff does not allege any facts supporting
his conclusory allegations that the force used by Officer
Shumaker was in anyway excessive.
Plaintiff's Complaint contains conclusory allegations that
excessive force was used. However, Plaintiff's Complaint does
not contain a single fact supporting theee conclusory
allegatio~s, In order for Plaintiff to recover under assault and
battery, the first requirement is that there is an act intended
to cause harmful or offenoive bodily conduct, or eminent
apprehension of such conduct, ~ Reinstatement (Second) of
-12-
.
.
Torte. Plaintiff's Complaint does not allege any facts
supporting the conclusory allegations that Officer Shumaker ever
intended to cause harmful or offensive bodily conduct, or eminent
apprehension of such conduct, If the conduct consists merely of
the force necessary to accomplish an arrest, Officer Shumaker's
conduct was privileged because a lawful arrest of Plaintiff was
~. Even though the privilege does not necessarily extend to
the use of excessive force, as noted above, Plaintiff never
alleges ~ facts that Officer Shumaker ever used any type of
excessive force whatsoever, Without these facts, Plaintiff's
Complaint must fail, ~ Kedra v. Citvof Phila" 454 F. Supp.
652, 673, n, 22 (E,O, of Pa.). See also Gaqliardi v. Lvnn, 446
Pa, 144, 149, 285 A, 2d, 109, 111 (1971). Furthermore,
Plaintiff's Complaint does not contain any facts supporting an
allegation that Officer Shumaker's actions were unlawful, and
therefore, the touching done by Officer Shumaker is privileged
under 18 Pa, C.S,A, S 508 (a). Officer Shumaker was privileged
I
to use any force he believed necessary to effect the lawful
arrest of Plaintiff, ~ Belcher v, United States. 511 F. Supp,
576, 485 (E,O. of Fa. 1981). In this case, Plaintiff was
lawfully arrested,
Plaintif f' s Complaint contains no indication that Officer
Shumaker did anything but follow standard operating procedure in
assisting in the stopping and arresting of Plaintiff at the time
of the incident, Of course, plaintiff asserts a legal conclusion
-13-
.
.
.
that there was a threat of force or imminent peril or forceful
retaliation if the police officer's commands were not followed,
but this is insufficient as a matter of law to survive this
preliminary objection to Plaintiff's Amended Complaint, In fact,
Plaintiff's Amended Complaint is totally devoid of any verbal
threats of force specifically made by Officer Shumaker,
Additionally, while Plaintiff's Amended Complaint does contain
some very conclusory allegations with regard to the individual
officers' defense of themselves with firearms, Plaintiff's
Complaint does not contain one scecific alleaation reaardi~q anv
firearm usaae bv Officer Shumak~r.
Therefore, because Plaintiff does not allege any type of
verbal threats or any type of excessive or unnecessary force, or
that Officer Shumaker had the requisite "intent" for assault and
battery, Plaintiff does not allege any facts from which a
reasonable juror could infer that Officer Shumaker's actions
constituted an assault and/or battery, Additionally, no
reasonable juror could infer that Officer Shumaker's actions
constituted an abuse of the privilege provided to Officer
Shumaker under 18 Pa. C,S.A, S 508 (a), Accordingly, all
allegations sounding in assault and battery as to Officer
Shumaker fail to state claims or causes of actions upon which
relief can be granted, and consequently, Officer Robert Shumaker
is entitled to have these allegations dismissed with prejudiced
a8 a matter of law,
-14-
I. PLA%JI'l'Ur'S COMPLAINT rAUS TO STATI A CLAIM
OR CAVSI or AC'l'ION rOR IJI'l'DTIONAL %HrLICTIOX
rOR INOTIONAL D%STRISS UPON WHICH RIL%lr CAN
BI GIWft'ID.
Plaintiff attempts to assert a claim for intentional
infliction of emotional distress against, inter Al1a, the Borough
of Wormleysburg and Officer Shumaker. No cause of action
presently exists in this jurisdiction for the tort of intentional
infliction of emotional distress, ~ Kazatskv v, Kina David
Memorial Park, 515 Pa, Commw, 183, 527 A,2d 988 (1987). In
Kazatskv, the Pennsylvania Supreme Court noted that" [p]reviously
this court has acknowledged but haa never had oooasion to
speoifioally adopt S 46 [intentional infliction of emotional
distress] as law in Pennsylvania", (emphasis added.) Recently,
I
two panels of the Superior Court of Pennsylvania have affirmed
;
this position. "The; tort [of intentional infliction of emotional
distress] has not been adopted and made a part of the law of
Pennsylvania," Kellv v, Resource House, of Am.,
Pa,
Super.
, 615 A.2d 423, 426 (1992), (Citing: Kazatskv v. Kina
David Memorial Park), 1
1 Footnote 1 of the Kazatskv Opinion notes the apparent
confusion in the Commonwealth of Pennsylvania with regard to the
application of section 46 of the Restatement (second) of Torts
regarding the intentional infliction of emotional distress, This
footnote notes several federal and state decisions which
"incorrectly" cite the proposition that the Commonwealth of
Pennsylvania has specifically adopted section 46 of the
Restatement (second) of Torts as law in Pennsylvania,
-15-
.
.
Assuming for purposes of this argument only that
Pennsylvania has adopted the tort of intentional infliction of
emotional distress, Plaintiff completely fails to allege the
prima facie elements of this tort, Again, the operative facts
surrounding the transactions and events giving rise to this
litigation render it impossible for Plaintiff to allege a cause
of action for intentional infliction of emotional dist:ress
against either the Borough of Wormleysburg or Officer Shumaker"
Intentional infliction of emotional distress is an
actionable wrong only when one intentionally and recklessly, by
extreme and outrageous conduct, causes severe emotional distress
to another. Cloverleaf Dev, Inc. v. Horizon Fin, F.A., 347 Pa.
Super, 75, 500 A,2d 163 (1985). Liability can only be found
where the conduct has been so outrageous in character and so
extreme in degree as to go beyond all possible bounds of decency
as to be regarded atrocious and utterly intolerable in a
civilized community, ~. The critical inquiry on a claim for
intentional infliction of emotional distress is whether the
conduct at issue was "extreme" and "outrageous," A claim for
intentional infliction of emotion distress is not cognizable
where the mere negligence of a party forms the basis of the
Complaint. ~ Strain v. Ferroni, 405 Pa. Super. 349, 592 A,2d
698 (1991); MQthorall v. Burkhart, 400 Pa, Super, 408, 583 A.2d
1180 (1990); Field v. Phila. Electric Co, 380 Pa. Super, 400. 565
A,2d 1170 (1989),
-16-
As a preliminary matter, it is for the court to determine,
as a matter of law, whether a defendant's conduct is so "extreme"
and "outrageous" asked to permit recovery f.or the intentional
infliction of emotional distress. MQtborall v. Burkhart, BUDra.
Lazor v, Milne, 346 Pa. Super, 177, 499 A.2d 369 (1985), Even
the mere fact that a defendant knows that plaintift will be
insulted or have his/her feelings hurt is not enough to establish
a claim for intentional infliction of emotior.al distress" ~"
Two recent Superior Court decisions have revisited the
supreme court's holding Kazatskv v. Kina David Memorial Park,
SUDra, The superior court decisions note that the supreme court
imposed, as a threshold requirement to determine whether conduct
reaches the level of outrageousness under Section 46 of the
Restatement (Second) of Torts, allegations of physical injury or
harm, '
The case of Abadie v. Riddle Memorial HosDital, 404 Pa,
Super. 8, 589 A,2d-1143 (1991), is the first of the recent
Superior Court decision addressing this issue, In Abadie,
plaintiff filed a civil action for the intentional and negligent
infliction of emotional distress by defendant hospital employees"
, In conducting legal research with regard to the instant
preliminary objection, it was noted that there appears to be a
dichotomy between the federal and state judiciary regarding the
intentional infliction of emotional distress. Federal courte do
not require a showing of physical manifestation of emotional
distress whereas recent Supreme and Superior Court decisions
r~quire such a showing if the Commonwealth were to adopt this
tort as part of its common law.
-17-
Defendant hospital filed preliminary objections to plaintiff's
complaint in the nature of a demurrer on the basis that "no cause
of action exists in this jurisdiction for the tort of intentional
infliction of emotional distress and, even if it were recognized,
the facts in the complaint are insufficient to set forth a cause
of action for intentional infliction of emotional distress""
~adie, 404 Pa. Super, at 9-10, 589 A.2d at 1144. The trial
court granted defendant hospital's preliminary objection in the
nature of demurrer, Plaintiff appealed this order, On appeal,
plaintiff asserted that the amended complaint stated a cause of
action for intentional infli~tion of emotional distress on part
of the defendant hospital, The Abadie court noted:
[O]ur supreme court imposed, as a threshold requirement
to determining whether specific conduct of which a
party complains reaches a level of outrageousness under
section 46 of t.he Restatement (Second) of Torts, an
allegation of phy.ioal injury or harm. The K~zatskv
court explained, "given the advance state of medical
science, it is unwise and unnecessary to permit
recovery to bo predicated on inference based on the
defendants 'outrageousness' without expert medical
confirmation that the plaintiff actually suffered the
claim distressed," At 197, 527 A,2d at 95. What is
required according to Kazatskv is "some objective proof
a severe emotional distress." .li1.
Abadie v. Riddle Memorial HosDital, 404 Pa, Super, at 13,
589 A,2d at 1146 (emphasis added). The Abadie court then held:
tPlaintiffs] claims for intentional infliction of
emotional distress must likewise fall for the lack of
any averment in her amended complaint of phyrical harm,
injury or illness occurring as a result of [defendant.]
conduct, aAA Discussion, SUDra, at 1144, Moreover, we
do not believe that [plaintiffs] allegations of
-18-
outrageousness, even if proven, rise to the level of
extreme and outrageous conduct contemplated by the
Restatement.
1s1.'
Kellv v, Resource House of AM" IQC.. ____ Pa" Super.
-'
615 A.2d 423 (1992), is the second superior court case to
expressly address the intentional infliction of emotional
distress issue. The Kellv court reasoned and held:
The gravamen of the tort is outrageous conduct,
[citation omitted], The tort ha. not b..n adopted and
'mad. a part of the law of p.nn.ylvania. [citation
omitted]. As a threshold requirement, in any event,
there must be physical injury or harm. [citation
omitted]" A plaintiff must allege physical harm to
sustain an action for the infliction of emotional
distress" Love v, Crame~, 414 Pa. Super. 231, 240, 606
A,2d 1175, 1179 (1992). "Given the advanced state of
medical science," the supreme court explained, "it is
unwise and unnecessary to permit recovery to be
predicated on an inference based on the defendant's
. outrageousness' without expert medical confirmation
that the plaintiff actually suffered the claimed
distres~,. [citations omitted]
Kellv v, Recourse House of AM, Inc., ____ Pa, Super, _, 615
A.2d 423, 426 (1992) (emphasis added) .
] The Abadie court quoted verbatim comment d to Restatement
(Second) of Torts Section 46, which provides:
It has not been enough that the defendant has acted
within an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or
even that his conduct has been characterized by malice
or by a degree of aggravation, which would entitle the
plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has
been so outrageous in character and so extreme in
degree as to go beyond all possible bounds of decency
and to be regarded as atrocious and utterly intolerable
in a civilized community.
-19-
In the instant case, Plaintiff's Complaint is completely
devoid of any allegations regarding conduct outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized community, Furthermore, Plaintiff's
Complaint fails to allege any type of physical injury or harm to
confirm that plaintiff actually suffered the claimed distress.
Without these allegations, all of Plaintiff's claims sounding in
the intentional infliction of emotional distress are meritless"
For all of these reasons, the Borough of Wormleysburg and Officer
Shumaker would Iespectfully request that this Honorable Court
sustain their Preliminary Objections to the intentional
infliction of emotional distress claims and dismiss all such
claims from Plaintiff's Amended Complaint with prejudice.
.. PLAIHTU.' S COMPLAINT .AILS TO STAT_ A CLAIM
OR CAVS_ O. ACTION UNO_R 42 V.S.C. I 1983
UPON WHICH ._LI.. CAN B. GRANT_D?
Plaintiff has failed to state a claim or cause of action
,
upon which relief can be granted for violation of his civil
rights against Moving Defendants, Borough of Wormleysburg and
Officer Robert Shumaker as well as all other Defendants, Count
III of Plaintiff's Complaint against all Defendants, which is
entitled "violation of civil rights", concentrates on an alleg8d
improper stop and seizure of the Plaintiff and alleged use of
excessive force, Yet, Plaintiff does not identify Officer Robert
-20-
Shumaker of the Wormleysburg Police Department at any point in
Count III of his Amended Complaint, except for his request for
compensation. plaintiff makes boilerplate allegations of
excessive force against all named individual defendants, however,
Robert Shumaker is not identified in any way in Plaintiff's
Amended complaint in regard to the alleged use of excessive
force,
Regardless of the fact other officers are identified in
Count III of Plaintiff's Amended Complaint, the allegations
against the officers still fall short of asserting a valid claim
for violation of Plaintiff's civil rights. Plaintiff's own
language in his Arnended Complaint acknowledges that the officers
"were acting on information received of an intoxicated man with a
firearm in a truck," (~paragraph 57 of Plaintiff's Amended
Complaint.) Further, the Plaintiff was indeed driving a truck
and having reported to have been intoxicated, parked his truck at
a tavern/restaurant. (~paragraph 58 of Plaintiff's Amended
Complaint,) Paragraph 68 of Plaintiff's Amended Complaint also
makes it clear that the Plaintiff did indeed have a weapon with
him at the time, (~paragraph 68 of Plaintiff's Amended
Complaint, )
Plaintiff alleges that the officers had insufficient facts
to conduct a Terry Search, However, as Plaintiff's Amended
Complaint makes clear, the officere were acting on information
that an intoxicated man was driving a truck with a weapon in hi.
-21-
vehicle, The Plaintiff was driving a truck. was parking at a
tavern/restaurant, and according to paragraph 68 of Plaintiff's
Amended Complaint, had a firearm in his possession. This clearly
falls within the realm, at the very least, of an allowable
investigatory stop pursuant Lo Terrv v, Ohio, 392 U.8" 1 (1967)"
Accordingly, Plaintiff has failed to set forth a claim or cause
of action for an improper search and seizure upon which relief
can be granted.
As noted above. plaintiff's Amended Complaint readily sets
forth that the officers were acting on the information that there
was an intoxicated person in a truck with a firearm.
As to plaintiff's excessive use of force claim. the United
States supreme Court has stated that all use of force cases are
to be analyzed under the Fourth Amendment since a specific right
is involved and that this right is to be given a test of
obiective reasonableness, (~Graham v, Connor, 490 U"9, 386
(1989) (emphasis added), Under Graham v, Connor, the question of
reasonableness goes to what the officers knew at the time of the
alleged incident, regardless whether or not the information was
allegedly erroneouS, The text of the Fourth Amendment indicates
that the appropriate inquiry is whether the officers acted
reasonably, not whether they had less intrusive alternatives
available, Scott v" Henrich, 34 F.3d 1498 1502 (9th Cir. 1994)
citina, Illinois v. Lafavette, 420 U.8, 640 (1983); United States
v. Martinez Fuerte, 428 U,S, 543 (1976).
-22-
.
Plaintiff'S Amended Complaint, on its face, clearly shows
that the officers did not violate the Plaintiff's rights pursuant
to 42 U.S.C. S 1983, since they were acting reasonably in
accordance with the standard set forth in Graham v, Connor, The
"reasonableness" of a particular use of force must be judged from
the perspective of a reasonable police officer on a ~cene, rather
than with the 20/20 vision of hindsight, Revnolds v, Countv of
San Oieao, 858 F, SUpp. 1064, 1070 (S,D, Cal, 1994), citina,
Graham v, Connor, 490 U,S, 386, 396 (1989), plaintiff submits
boilerplate allegations and vexatious language against Defendants
in an attempt to assert a claim for a violation of his
constitutional and civil rights. However, the boilerplate and
vexatious allegations do not change the fact that plaintiff has
failed to state a claim or cause of action upon which relief can
be granted in light of the standards set forth in Graham v,
Connor. The officers had information that a person was driving a
truck intoxicated with a firearm, Based upon that information,
Plaintiff's remaining allegations against the officers regarding
the stop of the plaintiff and the arrest of the Plaintiff are, on
there face, are reaeonable,
Moving Defendants reiterate that plaintiff does not make a
specific allegation of excessive force against the moving
individual defendant, Officer Robert Shumaker. Rule 1019 (a)
Pennsylvania Rule of Civil Procedure requires that the material
facts on which a cause of action is based shall be stated in a
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concise and summary form in the Complaint. Plaintiff makes no
material facts against Officer Robert Shumaker or any other
officers from the Borough of Wormleysburg regarding the stop and
alleged use of force against the Plaintiff,
Plaintiff's Amended Complaint makes it clear that plaintiff
has failed to state a claim or cause of action upon which relief
can be granted, and Plaintiff's boilerplate allegations are not
sufficient to maintain a cause of action pursuant to 42 U,S.C. S
1983. One of many examples of Plaintiff's boilerplate and
unsubstantiated allegations are contained in paragraph 65 in
plaintiff's Amended Complaint, in which Plaintiff asserts: "there
i8 no probable cause for the detaining or encountering and
subsequently arresting the Plaintiff, except that the various
officers were informed that there was a man intoxicated with a
weapon in a truck," As noted, in other paragraphs of Plaintiff's
Amended Complaint, plaintiff states that he was driving a truck,
had a weapon in his vehicle and that he was parking at a
tavern/restaurant,
Accordingly, Moving Defendants respectfully request that
this Honorable Court grant their Preliminary Objections in the
nature of demurrer and dismiss Count III of Plaintiff's Amended
Complaint.
G. PLAINTI'" S COMPLAINT I'AILS TO STAT. A CLAIM
OR CAVS. 01' ACTION I'OR PUNITIV. DAMAQ.S
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Plaintiff attempts to make some type of claim for punitive
damages, plaintiff's Amended Complaint fails in this attempt"
In Carretti v. True, 12 Dauph. 143 (1992), Judge Dowling of
the Court of Common pleas of Dauphin County stated that "punitive
damages require conduct that is outrageous because of defendant's
evil motives or resulte from his reckless indifference to the
rights of others. Restatement (Second) of Torts (1977) 5 908
(2) ,II Carretti, 112 Dauph, at 143. Additionally, Judge Dowling
referred to an early decision of the Court of Common Pleas of
Dauphin County:
Outrageous or wanton misconduct is where the actor has
intentionally done acts of unreasonable character in
disregard of a risk known to him are so obvious that he
must be taken to been aware of [that] and so great as
to make it highly probable that harm would follow, In
XA: DauDhin Countv Asbestos cases, 109 DauDh, 175,
auoti~a Evans v. Phila. TransDortation Co., 418 Pa"
567, 574 A,2d 440, 443 (1954).
~arretti, 112 Dauph. at 143,
Judge Dowling noted:
The concept of punitive damages seems to be getting out
of line, We see it more and more alleged in cases of
ordinary, [or] at best, gross negligence, It is fast
becoming a counter-part to the ineffective counsel
contention found in practically all post-conviction
hearing petitions, We wish to reiterate and emphasis
that it is reserved for the ~are instances of extreme
behavior.
Carrett~, ~; citina, Chambers v, Domino's Pizza. Inc., 110
Dauph, 1, 3 Pa. D, & C, 4th 183 (1989), Pennsylvania law is well
settled with regard to the fact that punitive damages ~ be
based on conduct which is malicious, wanton, reckless, wilful or
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" .
oppressive. Feld v, Merriam. 506 Pa, 383.
, 485 A"2d 742,
747 (1984) (emphasis added) . In addition, it is clear that "the
state of mind of the actor is vital, The act or failure to act,
must be intentional, reckless or malicious", ,W. at 748. As
previously noted and stated, Plaint if f' s Complaint contains no
facts which support a claim for punitive damages, The
allegations set forth in Plaintiff's Amended Complaint are
conclusory in nature and wholly and sufficient to support any
type of claim for punitive damages, ~ Smith v. Brown, 283 Pa"
Super, 116, 423 A,2d 743, 745, (1980); See also, ~dams v.
Rodfona, 7 Pa, D, & C, 3d 463, 469 (Beaver, 1978), Pennsylvania
Courts have consistently held that where the complaint fails to
state a claim upon which relief can be granted, that claim must
be stricken from the complaint, ~ Brownawell v. Bryan, 40 Pa.
D, & C, 3d, 604 (Cumberl.and 1985); Witchey v. Lisi, 17 Pa. 0, &
c, 3d, 131 (Clinton 1980) (two cases in which the trial court
sustained preliminary objections and dismissed claims for
punitive damages because the complaints failed to state claim for
which the rel1ef~ of punitive damages could be granted,) "[T]he
mere pleading of outrageous conduct" is not suff.icient to set
forth a prima facie case which would warrant an award of punitive
damages. Brownawell v, Brya:), 40 Pa, D,,& C, 3d, at 606.
III the inBtant case, Plaintiff's Amended Complaint contains
the same conclusory allegations as those in Brownawell and
Witchey, Plaintiff concludes "outrageous" conduct without
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. ., I
. ,
pleadina suff\cient facts to put defendants on notice as to what
outrageous conduct is being alleged to support the claim for
punitive damages" ~ Pa, R.C,P, 1019 <a), Under this
rationale, the Borough of Wormleysburg' and Officer Shumaker
contend that the punitive damage allegations contained in
Plaintiff's Amended Complaint. do not support any claim for
punitive damages" Facially, the Amended Complaint merely makes
blanket conclusions akin to the allegations found in Brownawell
and Witchev" Accordingly, these conclusory statements of alleged
conduct of the defendant are not sufficient to set forth a Drima
facie case for punitive damages.
IV. COXCLUSIOH
For all of the foregoing reasons, Defendants, Borough of
Wormleysburg and Office~ Robert Shumaker, respectfully request
that all of their preliminary objections as set out more fully in
this Brief be granted by this Honorable Court,
\
· As th.e punitive damages "demand" is contained in the Count
of Plaintiff's Complaint labelled violation of civil rights, the
Borough of wormleysburg points out that punitive damages cannot
be imposed directly against municipalities under 42 U.S.C, I
1983, See Kdenan v, Citv of Phila., 953 F,2d 459, 463 (3d, Cir,
1992), The same reasoning applies under the Political Subdivision
Tort Claims Act,
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