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HomeMy WebLinkAbout02-5940 CivilTROY A. BEAM TOWNSHIP OF SHIPPENSBURG, STEPHEN C. OLDT, JOHN E. BARD, GALEN S. ASPER, BOROUGH OF SHIPPENSBURG, AND JEFFREY SHUBERT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-5940 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, P.J., OLER, GUIDO, J.J. OPINION AND ORDER OF COURT Plaintiff has filed this multi-count complaint alleging both state and federal causes of action against the defendants. All of the defendants have filed preliminary objections in the nature of a demurrer. The parties have briefed and argued their respective positions. This matter is now ready for disposition. Standard of Review The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader' s right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of NO. 2002-5940 CIVIL a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402, 408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Factual Background The allegations contained in plaintiff' s complaint may be summarized as follows: The incident giving rise to this action occurred at approximately 1:30 p.m. on June 13, 2002, in Shippensburg Township, Cumberland County, Pennsylvania. At that time employees of Defendant Shippensburg Township (hereinafter "Township") appeared at the Rocky Knob residential complex to conduct inspections of various residences "for property maintenance purposes.''l The Township employees were in possession of search warrants authorizing access to the various residences to be inspected. They were also accompanied by a Pennsylvania State Police Trooper. Plaintiff was asked to open the door to the residences. He responded that he did not have keys to all of the apartments and refused to open those for which he did have keys.2 He was then advised by the Trooper that forcible entry would be made into any locked apartment. Several police officers from Defendant Shippensburg Borough (hereinafter 1 See Complaint, paragraph 13. Rocky Knob is a residential complex serving students of Shippensburg University. Since the school was in summer recess, most of the residents were not present. 2 The complaint is not clear regarding plaintiff's connection with the Rocky Knob complex. NO. 2002-5940 CIVIL "Borough") were summoned to assist with the entry into the apartments. Among those officers was Defendant Jeffrey Shubert (hereinafter "Shubert"). Plaintiff photographed the Township and Borough employees as they "broke into" each locked apartment. All photographs were taken "from the public areas of the building and the exterior of the building.''3 Defendant Shubert asked the plaintiff not to photograph him. When plaintiff ignored his request, the officer demanded that he be given the camera. Plaintiff responded "no" and put the camera behind his back. Officer Shubert grabbed the plaintiff, threw him against a wall, punched him in the stomach, and forcibly took the camera from him. Although the assault was witnessed by the other borough police officers, they did nothing to intervene. It was also witnessed by the plaintiff' s children. The only intervention came from the Borough's police chief who ordered Officer Shubert to "give the man his camera back.''4 DISCUSSION State Law Causes of Action The first five counts of the complaint sound in negligence and intentional tort. Counts I and II allege causes of actions against Officer Shubert individually as a result of his attack on plaintiff. Count I seeks to impose liability for the intentional conduct of Defendant Shubert. Count II sounds in negligence. Count III of the complaint seeks to impose vicarious liability on the Borough for the conduct of its employee, Officer Shubert. Count IV is an action against the Borough based upon its negligent "hiring and 3 See Complaint, paragraph 21. 4 See Complaint, paragraph 35. NO. 2002-5940 CIVIL supervision" of Officer Shubert. The claim in Count V sounds in negligence against Defendant Shippensburg Township for its failure to properly supervise Officer Shubert. The Political Subdivision Tort Claims Act5 is relevant to our analysis of the state law causes of action. Governmental Immunity is granted to the Borough under Section 8541 of the Act which provides: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 42 Pa. C.S.A. § 8541. It is extended to Officer Shubert under the provisions of Section 8545 which provides: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. 42 Pa. C.S.A. § 8545. The Act goes on to provide for the waiver of governmental immunity in connection with injuries "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)." 42 Pa. C.S.A. § 8542 (a)(2) (emphasis added). There is no allegation by plaintiff that the actions of Officer Shubert fall within one of those enumerated categories. Therefore, his negligence claim against Officer Shubert set forth in Count II must fail. For the same reasons, the claims against the Borough and Township set forth in Counts IV and V must also fail. However, the claim based on Shubert's intentional conduct is quite another matter. Section 8550 of the Act provides: s 42 Pa. C.S.A. § 8541 et seq. NO. 2002-5940 CIVIL In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in 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 provisions of sections 8545 (relating to official liability generally).., shall not apply. 42 Pa. C.S.A. § 8550. Since immunity is extended to Officer Shubert by virtue of Section 8545, and since the allegations in the complaint are sufficient to support a judicial determination that the officer's conduct constituted a crime or willful misconduct, the claim will survive the preliminary objections. The basis for the Borough's claim of governmental immunity is in Section 8541 which is set forth above. Section 8550 does not specifically abrogate the immunity of the Borough under that Section, as it did for the officer under Section 8545, nor is the immunity waived under Section 8542. Therefore, the claim in Count II! which attempts to impose vicarious liability against the Borough for the conduct of Officer Shubert cannot stand. Federal Cause of Action The final claim in Count VI is against the Township, its individual supervisors, and the Borough. The claim is based upon Section 1983 of the Federal Civil Rights Act.6 The relevant section of the Act provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured... 6 42 U.S.C. § 1983. NO. 2002-5940 CIVIL 42 U.S.C. {} 1983. The United States Supreme has held that "Congress did intend municipalities and other local government units to be among those persons to whom {} 1983 applies." Mone// v. Department of Socia/ Services of New York City, 436 U.S. 658, 690 (1978). However, while "a municipality can be sued, under {} 1983, it cannot be held liable unless a municipal policy or custom caused the constitutional injury." (emphasis added) Leatherman v. Tarrant County, 507 U.S. 163, 166 (1993). Applying the above law to the case at bar, the preliminary objections of all defendants to Count VI must be granted. There are no factual allegations against the individual supervisors which could in any way be interpreted to involve them in the action by Officer Shubert against the plaintiff. Likewise, there are no allegations that a policy or custom of the Township caused the injury to plaintiff. There is not even an allegation that the Township had control over Officer Shubert. Nor is there an allegation that Officer Shubert had ever acted on behalf of the Township other than in this isolated incident where he was summoned to help gain entry into the apartments. Therefore, the federal claims against the Township and its supervisors must fail. Likewise the complaint fails to allege any "policy" or "custom" of the Borough which caused (or even contributed to) plaintiff' s constitutional injury. To the contrary, the complaint specifically alleges that the Borough had "rules and regulations" which Defendant Shubert specifically violated.7 Therefore, the federal claims against the Borough must also be dismissed. ? See Complaint, paragraph 65. Defendant cites Schnupp v. Port Authority of Allegheny, 710 A.2d 1235 (Pa. Commonwealth 1998) in Support of his § 1983 claim. In similar facts, the Commonwealth Court upheld a 1983 claim against Port Authority police officers. We agree that the allegations against Officer Shubert are sufficient to make out a § 1983 claim. However, he was not named as a party in Count VI. NO. 2002-5940 CIVIL ORDER OF COURT AND NOW, this 24TM day of NOVEMBER, 2003, the demurrer of the various defendants to Counts II through VI of the complaint are sustained and those Counts are DISMISSED. The demurrer of Defendant Shubert to Count I is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Louis M. Kodumal, Esquire 414 East Baltimore Pike Media, Pa. 19063 Ron Turo, Esquire 28 South Pitt Street Carlisle, Pa. 17013 Michael J. Butler, Esquire 123 South Board Street Avenue of the Arts Phila., Pa. 19109 Frank Lavery, Esquire 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, Pa. 17108 :sld