HomeMy WebLinkAbout93-0646 Civil HOWARD L. LEWIS, JR., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
BOROUGH OF WORMLEYSBURG, :
BOROUGH OF WORMLEYSBURG :
POLICE DEPARTMENT and :
OFFICER ROBERT RESSLER, :
Defendants : NO. 646 CIVIL 1993
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this 2 [~ day of October, 1994, after careful
consideration of Defendants' preliminary objections and for the
reasons stated in the accompanying Opinion, it is ORDERED and
DIRECTED as follows:
1. The preliminary objections in the nature of a demurrer on
behalf of Defendant-Police Department and Defendant-Borough to
Count I (false imprisonment), Court II (assault), Count III
(intentional infliction of emotional distress) and Count IV
(battery) of Plaintiff's amended complaint are SUSTAINED, pursuant
to the Political Subdivision Tort Claims Act.
2. The preliminary objections of Defendants in the nature of
a demurrer to Plaintiff's claim for punitive damages in Count V
(federal civil rights action) are SUSTAINED as to Defendant-Police
Department and Defendant-Borough and DENIED as to Defendant-
Ressler.
3. The preliminary objections of Defendants in the nature of
a demurrer to Plaintiff's claim for intentional infliction of
emotional distress on the basis of the facts alleged are DEEMED
MOOT as to Defendant-Police Department and Defendant-Borough and
DENIED as to Defendant-Ressler.
4. Defendants' preliminary objection in the form of a motion
to strike because of duplicative and/or cumulative matter is
DENIED.
BY THE COURT,
JOWesley-Ol~r~r.', ~.~
Arthur K. Dils, Esq.
Attorney for Plaintiff
Thomas J. McMahon, Esq.
Frank Lavery, Esq.
Attorneys for Defendants
: rc
HOWARD L. LEWIS, JR., : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
BOROUGH OF WORMLEYSBURG, :
BOROUGH OF WORMLEYSBURG :
POLICE DEPARTMENT and :
OFFICER ROBERT RESSLER, :
Defendants : NO. 646 CIVIL 1993
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This case arises out of an incident which occurred on or about
April 25, 1992, in which Officer Robert Ressler (Defendant-Ressler)
in his capacity as a member of the Police Department (Defendant-
Police Department) of the Borough of Wormleysburg (Defendant-
Borough) in Cumberland County allegedly effected a stop of a
vehicle operated by Howard L. Lewis, Jr. (Plaintiff). Presently at
issue are Defendants' preliminary objections to Plaintiff's amended
complaint.
Preliminary objections being pursued~ by Defendants are as
follows: (1) a demurrer on behalf of Defendant-Police Department
and Defendant-Borough as to certain state-law tort claims, based
upon governmental immunity;~ (2) a demurrer on behalf of all
Defendants to Plaintiff's claim for punitive damages sought
~ Under C.C.R.P. 210-7, issues raised but not briefed are
deemed abandoned.
2 Defendants' Brief in Support of Preliminary Objections to
Amended Complaint, at 5-8.
No. 646 Civil 1993
pursuant to 42 U.S.C. S1983 (federal civil rights action);3 (3) a
demurrer on behalf of all Defendants to Plaintiff's claim for
intentional infliction of emotional distress;4 and (4) a motion on
behalf of all Defendants to strike allegedly duplicative and/or
cumulative averments,s
For the reasons stated in this Opinion, the demurrer on behalf
of Defendant-Police Department and Defendant-Borough as to the
several state-law tort claims on grounds of governmental immunity
will be granted. The demurrer on behalf of Defendant-Police
Department and Defendant-Borough to the claim for punitive damages
in the federal civil rights action will be sustained and the
demurrer on behalf of Defendant-Ressler to said claim will be
denied. The demurrer on behalf of Defendant-Police Department and
Defendant-Borough to the claim for intentional infliction of
emotional distress will be deemed moot and the demurrer on behalf
of Defendant-Ressler to said claim will be denied. The motion to
strike on behalf of all Defendants will be denied.
Statement of Facts
Plaintiff commenced this action by filing a praecipe for a
3 Defendants' Brief in Support of Preliminary Objections to
Amended Complaint, at 8-11.
4 Defendants' Brief in Support of Preliminary Objections to
Amended Complaint, at 11-13.
s Defendants' Brief in Support of Preliminary Objections to
Amended Complaint, at 13-15.
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No. 646 Civil 1993
writ of summons on February 23, 1993, followed by a complaint on
February 10, 1994. The complaint contained four counts against
Defendants: Count I -- false imprisonment, Count II -- assault, Count
III -- intentional infliction of emotional distress and Count IV -
battery.~ On March 1, 1994, Defendant filed preliminary objections
in the nature of a demurrer to Plaintiff's complaint. On March 18,
1994, Plaintiff filed an amended complaint adding a fifth count,
pursuant to 42 U.S.C. ~1983 (federal civil rights action),7 and
including a demand for punitive damages in connection therewith.8
Averments of the original complaint were incorporated in the
amended complaint.9 The facts as alleged in Plaintiff's pleading
as amended are as follows:~°
On or about August 25, 1992, at 3:50 p.m., Plaintiff, an Afro-
American male, exited the parking lot at an establishment known as
Cellular One on North Front Street in the Borough of Wormleysburg,
See Plaintiff's complaint.
The count was also pursuant to 42 U.S.C. §§1981 and 1988.
See Plaintiff's Amended Complaint Pursuant to Pennsylvania
Rule of Civil Procedure 1028(c)(1) (hereinafter Plaintiff's amended
complaint or amended complaint).
9 Plaintiff's amended complaint, paragraph 41.
~0 In reciting the facts as alleged in Plaintiff's pleading,
the Court is in no way expressing an opinion as to the truth of the
averments.
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No. 646 Civil 1993
Cumberland County, Pennsylvania, driving a 1988 BMW automobile,n
At the intersection of Front and Market Streets, Plaintiff was
ordered to pull over to the side of the road by Defendant-Ressler,
a police officer with the Borough of Wormleysburg Police
Department, who was in full uniform.~2 Upon stopping the vehicle,
Defendant-Ressler approached Plaintiff and ordered him to place his
hands on the steering wheel and remain motionless;~3 the officer
then unbuckled the leather s~rap holding his revolver.TM
Officer Ressler physically removed Plaintiff from the vehicle,
"arranged" Plaintiff's body into a spread-eagle position against
the car, and conducted a pat-down search of Plaintiff's entire
body.~s Defendant-Ressler handcuffed Plaintiff and placed him in
a police cruiser.~6 All of this was done along a public highway in
full view of passers-by.~7 According to Plaintiff, he repeatedly
asked Defendant-Ressler for an explanation of the treatment he was
~ Plaintiff's complaint, paragraphs 5-7; Plaintiff's amended
complaint, paragraph 47.
Plaintiff's complaint, paragraphs 5-7, 8.
Plaintiff's complaint, paragraph 9.
Plaintiff's complaint, paragraph .
Plaintiff's complaint, paragraphs 10-12.
Plaintiff's complaint, paragraph 13.
Plaintiff's complaint, paragraphs 11-13.
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No. 646 Civil 1993
receiving, but none was forthcoming.~8 Thereafter, the borough's
police chief arrived on the scene and gave Plaintiff a brief
explanation.~9
Defendant-Ressler had previously been informed "that a black
man had a gun on the West Shore.''2° The chief then directed
Defendant-Ressler to remove the handcuffs from Plaintiff and
directed Plaintiff to move his vehicle into a parking lot; a
warrantless search of Plaintiff's entire vehicle was conducted
pursuant to an "order" by Defendant-Ressler.2~ Plaintiff did not
agree to this search.22 No charges were filed, and Plaintiff was
released after 45 minutes.23
In his amended complaint, Plaintiff seeks punitive damages
with respect to the civil rights action because, he claims, there
was no basis for the unlawful search, seizure, arrest and
confinement of his person and of his property.24 Moreover,
Plaintiff claims, as part of the civil rights action, that he was
"deprived of his constitutional rights and his liberty" and
Plaintiff's complaint, paragraph 14.
Plaintiff's complaint, paragraph 16.
Plaintiff's amended complaint, paragraph 49.
Plaintiff's complaint, paragraph 17.
Plaintiff's complaint, paragraph 17.
Plaintiff's amended complaint, paragraph
Plaintiff's amended complaint, paragraph 82.
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No. 646 Civil 1993
suffered and continues to suffer great mental and emotional upset.25
According to Plaintiff, because he was held in custody by
Defendant-Ressler, who was acting within the scope of his
employment as a police officer, the actions were under color of
state law, and the actions were a gross, willful and flagrant
violation of Plaintiff's constitutional rights. Therefore,
Plaintiff alleges that he is entitled to a "substantial award of
punitive damages.-26
On April 7, 1994, Defendants filed preliminary objections to
Plaintiff's amended complaint. First, Defendant-Police Department
and Defendant-Borough demur to Plaintiff's state-law tort claims,
asserting immunity as to the causes of action of false
imprisonment, assault, intentional infliction of emotional distress
and battery on the basis of Pennsylvania's Political Subdivision
Tort Claims Act.27 Second, all Defendants demur to Plaintiff's
federal civil rights claim to the extent that it seeks punitive
damages; in this regard, Defendant-Police Department and Defendant-
Borough assert that Plaintiff is precluded as a matter of law from
recovering punitive damages from municipal defendants in a claim
made pursuant to 42 U.S.C. §1983. Defendant-Ressler argues that
Plaintiff's amended complaint, paragraph 83.
Plaintiff's amended complaint, paragraph 83.
See Act of October 5, 1980, P.L. 693, ~221(1), 42 Pa. C.S.
~S8541 et seq.
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No. 646 Civil 1993
Plaintiff has failed to plead facts which meet the requisite
standard applicable to a claim for punitive damages. Third, all
Defendants demur to Plaintiff's claim for intentional infliction of
emotional distress, on the basis of the facts alleged. Finally,
all Defendants have filed an objection in the form of a motion to
strike paragraphs 49, 50, 51, 52, 53, 55, 57, 60, 63, 66, 67, 70,
73, 74, 76, 78 and 85 of Plaintiff's amended complaint as being
duplicative and/or cumulative.
Statement of Law
Demurrer. It is well settled in Pennsylvania that' "[t]he
question presented by a demurrer is whether, on the facts averred,
the law says with certainty that no recovery is possible, and where
a doubt exists as to whether a demurrer should be sustained, this
doubt should be resolved in favor of overruling it." $carpitti v.
Weborg, 530 Pa. 366, 369, 609 A.2d 147, 148-49 (1992). In
considering this question, the court must keep in mind that "a
demurrer admits every well-pleaded fact and all inferences
reasonably deducible therefrom .... " Rutherford v. Presbyterian-
University Hospital, 417 Pa. Super. 316, 321-22, 612 A.2d 500, 502
(1992). Moreover, "a demurrer is not to be sustained and the
complaint dismissed unless the law says with certainty that no
recovery is possible." Cianfrani v. Commonwealth of Pennsylvania,
Employees' Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469
(1984).
No. 646 Civil 1993
Motion to strike. According to Pennsylvania Rule of Civil
Procedure 1019(a), "[t]he material facts on which a cause of action
or defense is based shall be stated in a concise and summary form."
"Additional immaterial facts, evidence, or conclusions of law in a
pleading do not necessarily render it defective. They may be
treated as harmless surplusage, and ignored in a responsive
pleading." 2 Goodrich Amram 2d ~1019(a):ll at 326 (1991); see,
e.g., Hagerty v. Latrobe Area Hospital, 53 Pa. D. & C.2d 191
(Westmoreland Co. 1971). Moreover, "[a] pleading will not be
stricken because of the inclusion of unnecessary words which do not
harm or prejudice an opponent .... " 2 Goodrich Amram 2d
§1019(a):ll, at 326 (1992). However, "if the presence of
immaterial facts, evidence or conclusions of law in a pleading is
confusing or harmful, they may be stricken." Id., at 326-27.
Governmental Immunity. Governmental immunity is provided for
in the Political Subdivision Tort Claims Act, which states in part
as follows:
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.28
Exceptions to governmental immunity are also provided for in the
Act:
Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S.
~8541.
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No. 646 Civil 1993
(a) Liability imposed. - A local agency
shall be liable for damages on account of an
injury to a person or property within the
limits 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 immunity); and
(2) The injury 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.29
Subsection (b) of Section 8542 lists eight specific exceptions to
governmental immunity, which are: (1) vehicle liability, (2) care,
custody or control of personal property, (3) real property, (4)
trees, traffic controls and street lighting, (5) utility service
facilities, (6) streets, (7) sidewalks, and (8) care, custody or
control of animals. See Act of October 5, 1980, P.L. 693, §221(1),
as amended, 42 Pa. C.S. §8542(b).
Act of October 5, 1980, P.L. 693, ~221(1), 42 Pa. C.S.
§8542(a).
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No. 646 Civil 1993
Local agency is defined in the Act as "[a] government unit
other than the Commonwealth government. The term includes an
intermediate unit." Act of October 5, 1980, P.L. 693, §221(1), as
amended, 42 Pa. C.S. S8501. In Weinerman v. City of Philadelphia,
785 F. Supp. 1174, 1178 (E.D. Pa. 1992), the District Court
observed that "[s]ettled Pennsylvania case law establishes that the
City is such a local agency," in holding that the City of
Philadelphia was a local agency under the Act.
With regard to municipal immunity under the Act, "the purpose
behind the enactment of the Political Subdivision Tort Claims Act
was to insulate Political Subdivisions from liability, except for
injuries sustained to persons or property in accordance with one of
the specific exceptions listed within the Act." Walsh 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.
City of Philadelphia, 518 Pa. 370, 374, 543 A.2d 531, 532 (1988),
quoting Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d
1118, 1123 (1987).
In Agresta v. City of Philadelphia, 694 F. Supp. 117 (E.D. Pa.
1988), the District Court was presented with claims against the
City of Philadelphia remarkably similar to those involved in the
present case. The plaintiff in Agresta brought tort actions
10
No. 646 Civil 1993
against the city based on false arrest and imprisonment, malicious
prosecution, intentional infliction of emotional distress, and
assault and battery. Agresta v. City of Philadelphia, 694 F. Supp.
117, 123 (E.D. Pa. 1988). In observing that the Act "abrogates the
[general rule as to] liability of a local agency only for certain
narrowly excepted negligent acts listed at 42 PA. CONS. STAT. ANN.
§8542(b)," the Court, applying Pennsylvania law, held that "[t]he
plaintiff's state tort claims are intentional torts and would fall
within the description [contained in 42 Pa. C.S. S8542(a)(2)] of
acts constituting 'actual malice' or 'willful misconduct'. The
City of Philadelphia is, therefore, immune from suit on the
plaintiff's state law claims." Id.
With regard to Plaintiff's reliance on Section 8550 of the Act
as furnishing an exception to governmental immunity in the present
case, that section provides as follows:
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), 8546 (relating
to defense of official immunity), 8548
(relating to indemnity), and 8549 (relating to
limitation on damages) shall not apply.
Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S. §8550.
However, it has been held that "[w]hile Section 8550 indeed waives
four specific immunities for willful misconduct, each of the waived
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No. 646 Civil 1993
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).
"'[T]he affirmative defense of governmental immunity may be
raised by preliminary objections in the nature of a demurrer where
that defense is apparent on the face of the pleading .... '" Combs
v. Borough of Ellsworth, 151 Pa. Commw. 21, 24, 615 A.2d 462, 464
(1992), quoting Wurth v. City of Philadelphia, 136 Pa. Commw. 629,
638, 584 A.2d 403, 407 (1990).
Intentional infliction of emotional distress. The tort of
intentional infliction of emotional distress is defined in Section
46 of the Restatement (Second) of Torts (1965). Although this
section has yet to be adopted by the Pennsylvania Supreme Court,3°
the Superior Court has cited Section 46 of the Restatement with
approval. See Zikoria v. Association of Thoracic and
Cardiovascular Surgeons, Pa. Super. , 637 A.2d 1367 (1994);
Field v. Philadelphia Elec. Co., 388 Pa. Super. 400, 565 A.2d 1170
(1989). Section 46 provides, in pertinent part, as follows:
S46. Outrageous Conduct Causing Severe
Emotional Distress
(1) One who by extreme and
3o See Kazatsky v. King David Memorial Park, 515 Pa. 183, 185,
527 A.2d 988, 989 (1987).
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No. 646 Civil 1993
outrageous conduct intentionally or
recklessly causes severe emotional
distress to another is subject to
liability for such emotional
distress, and if bodily harm to the
other results from it, for such
bodily harm.
Restatement (Second) of Torts §46(1) (1965).
The level to which one's conduct must rise to be considered
extreme or outrageous is discussed in the comment to Section 46.
d. Extreme and outrageous conduct. The
cases thus far decided have found liability
only where the defendant'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~"
The liability clearly does not extend to
mere insults, indignities, threats,
annoyances, petty oppressions, or other
trivialities. 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's feelings are hurt.
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No. 646 Civil 1993
Restatement (Second) of Torts ~46 cmt. d (1965).
"It is for the court to determine, in the first instance,
whether the defendant's conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery." Hackney v.
Woodring, 424 Pa. Super. 96, 101, 622 A.2d 286, 287 (1993); see
Restatement (Second) of Torts ~46 cmt. h. However, "[w]here
reasonable persons may differ, it is for the jury, subject to the
control of the court, to determine whether, in the particular case,
the conduct has been sufficiently extreme and outrageous to result
in liability." Id.
Punitive damaqes. The United States Supreme Court has held
that municipalities are immune from claims for punitive damages
brought under 42 U.S.C. §1983. Newport v. Facts Concerts, Inc.,
453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616, 635
(1981). In capsulizing its Opinion, the Court wrote,
In sum, we find that considerations of
history and policy do not support exposing a
municipality to punitive damages for the bad-
faith actions of its officials. Because
absolute immunity from such damages obtained
at common law and was undisturbed by the 42nd
Congress, and because that immunity is
compatible with both the purposes of §1983 and
general principles of public policy, we hold
that a municipality is immune from punitive
damages under 42 USC ~1983.
Id.
Although municipalities are immune from claims for punitive
damages sought through a Section 1983 action, the Supreme Court has
14
No. 646 Civil 1993
held that they are available, as to individual defendants, in
appropriate cases. Smith v. Wade, 461 U.S. 30, 36, 103 S. Ct.
1625, 1629, 75 L. Ed. 2d 632, 639 (1983). In so noting, the Court
observed that in Newport a significant part of the reasoning in
holding that municipalities were immune from punitive damages under
Section 1983 was that deterrence of constitutional violations would
be adequately accomplished by allowing punitive damage awards
directly against the responsible individuals. Id. at 36 n.5, 103
S. Ct. at 1629 n.5, 75 L. Ed. 2d at 639 n.5. 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, 1637, 75 L. Ed. 2d 632, 648 (1983).
Application of Law to Fact~
With respect to the demurrer on behalf of Defendant-Police
Department31 and Defendant-Borough to Plaintiff's state-law tort
claims on the basis of governmental immunity under the Political
Subdivision Tort Claims Act, it is apparent on the face of
Plaintiff's pleading that the objection is a valid one. The claims
are for intentional torts and are not within the scope of any of
3~ It may be noted that Defendant-Police Department is of
doubtful capacity as a party. See Agresta v. City of Philadelphia,
694 F. Supp. 117, 119 (E.D. Pa. 1988) (complaint against police
department of Philadelphia dismissed because "it does not have a
separate corporate existence"). This issue, however, is not
presently before the Court.
15
No. 646 Civil 1993
the exceptions to governmental immunity. For this reason, the
demurrers of Defendant-Police Department and Defendant-Borough to
Plaintiff's claims for false imprisonment (Count I), assault (Count
II), intentional infliction of emotional distress (Count III), and
battery (Count IV) will be sustained.
With respect to the demurrer on behalf of Defendant-Police
Department and Defendant-Borough to Plaintiff's claim for punitive
damages in the federal civil rights claim (Count V), the foregoing
authority establishes that such damages are not recoverable against
a municipal defendant. On the other hand, they are not precluded
as a matter of law against an individual defendant, and the Court
believes that it would be premature at this early stage of the
pleadings to conclude with certainty that a recovery would be
impossible. For this reason, the demurrers of Defendant-Police
Department and Defendant-Borough to Plaintiff's claim for punitive
damages will be sustained and the demurrer of Defendant-Ressler
will be denied.
With respect to Defendant's demurrers to Plaintiff's claim for
intentional infliction of emotional distress (Count III) on the
basis of the facts alleged, the issue as to Defendant-Police
Department and Defendant-Borough has been mooted by the earlier
ruling pursuant to the doctrine of governmental immunity. As to
Defendant-Ressler, the Court believes that it is premature to rule
with certainty that any recovery would be impossible. For this
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No. 646 Civil 1993
reason, the demurrers of Defendant-Police Department and Defendant-
Borough to Plaintiff's claim for intentional infliction of
emotional distress on the basis of the facts alleged will be deemed
moot, and the demurrer of Defendant-Ressler will be denied.
Finally, with respect to Defendants' motion to strike certain
paragraphs of Plaintiff's pleading for failure to state material
facts in a concise and summary form, the Court believes that an
absence of prejudice to Defendants from the alleged deficiencies
tends to militate against a sustaining of the preliminary
objection. In this case, the prolixity of the pleading will be
regarded as harmless.
ORDER OF COURT
AND NOW, this ~[~ day of October, 1994, after careful
consideration of Defendants' preliminary objections and for the
reasons stated in the accompanying Opinion, it is ORDERED and
DIRECTED as follows:
1. The preliminary objections in the nature of a demurrer on
behalf of Defendant-Police Department and Defendant-Borough to
Count I (false imprisonment), Court II (assault), Count III
(intentional infliction of emotional distress) and Count IV
(battery) of Plaintiff's amended complaint are SUSTAINED, pursuant
to the Political Subdivision Tort Claims Act.
2. The preliminary objections of Defendants in the nature of
a demurrer to Plaintiff's claim for punitive damages in Count V
17
No. 646 Civil 1993
(federal civil rights action) are SUSTAINED as to Defendant-Police
Department and Defendant-Borough and DENIED as to Defendant-
Ressler.
3. The preliminary objections of Defendants in the nature of
a demurrer to Plaintiff's claim for intentional infliction of
emotional distress on the basis of the facts alleged are DEEMED
MOOT as to Defendant-Police Department and Defendant-Borough and
DENIED as to Defendant-Ressler.
4. Defendants' preliminary objection in the form of a motion
to strike because of duplicative and/or cumulative matter is
DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Arthur K. Dils, Esq.
Attorney for Plaintiff
Thomas J. McMahon, Esq.
Frank Lavery, Esq.
Attorneys for Defendants
18