IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

TIMOTHY J. DUNMIRE, : 

 Plaintiff : NO. 2:05-CV-00081 

 : 

 v. : JUDGE SCHILLER 

 : 

STEPHEN M. DETZ, ERIC ZIMMERMAN, : 

DAVID BURGIS, THE BOROUGH OF : 

LITITZ and THE TOWNSHIP OF WARWICK, : JURY TRIAL DEMANDED 

 Defendants : 

DEFENDANTS, STEPHEN M. DETZ AND BOROUGH OF LITITZ,

ANSWER TO COMPLAINT TOGETHER WITH 

AFFIRMATIVE DEFENSES

FIRST DEFENSE

PARTIES: 

 1. Admitted. 

 2. Admitted. 

 3. Admitted. 

 4. Admitted. 

 5. Admitted. 

 6. Admitted. 

 7. Admitted. 

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 8. Admitted. 

 9. Admitted. 

 10. Admitted. 

JURISDICTION: 

 11. Admitted. 

FACTS: 

 12. Denied. At approximately 2:00 a.m. on December 12, 2004, Timothy 

Dunmire and two (2) passengers identified as Troy Whitmyer and Tisha Haldeman 

were involved in a traffic stop conducted by Officer Jared A. Hahn of the Lititz Borough 

Police Department. 

 13. It is admitted on information and belief that Timothy J. Dunmire resided 

at 12 South Broad Street in Lititz. The remaining averments are denied. 

 14. Denied as stated. At approximately 3:00 a.m., on December 12, 2004 

Police Officer Detz appeared at the front door of Dunmire’s apartment and knocked on 

the door. 

 15. In response, Dunmire who was very intoxicated, answered the door, 

stepped on the stairs, shutting the door behind him. It is admitted that Officer Detz and 

Plaintiff Dunmire had a lengthy conversation outside the front door. 

 16. The essence of the conversation was that Officer Detz needed to check the 

residence to make certain that no one was injured or fighting. 

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 17. It is admitted only that the conversation continued. Prior to the arrival of 

Officer Zimmerman, Troy Allen Whitmyer stepped out onto the stairway. Officer Detz 

explained the situation to him and repeatedly told Plaintiff that he needed to check the 

residence. It was at this point that Officer Zimmerman arrived. 

 18. Denied as stated. During this sequence, both Dunmire and Whitmyer 

were taken into custody for officer safety. It is believed that no injuries were sustained 

by anyone. 

 19. It is admitted only that Officer Detz and Officer Zimmerman entered the 

Dunmire residence. 

 20. Admitted. 

 21. Denied as stated. Officers Detz and Zimmerman checked the residence to 

make sure that there were no injuries. 

 22. Denied as stated. During the check of the residence, six (6) persons were 

found in various locations inside the residence, all of whom denied any problems. 

During the check of the residence, the officer observed a small baggie of suspected 

marijuana and a multi-colored smoking device on the coffee table in the living room. It 

was explained that no one would be charged with possession since the items were 

found in the common area which everyone in the residence had access to, but the items 

were taken. At this point, the officers removed the handcuffs from Dunmire and 

Whitmyer and departed. 

 23. Denied. 

 24. Denied. 

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COUNT I – VIOLATION OF

42 U.S.C. § 1983 – HOME INVASION

DUNMIRE v. DETZ, ZIMMERMAN AND BURGIS

 25. The admissions or denials of Paragraphs 1 through 24 are incorporated 

herein by reference as if more fully set forth herein. 

 26. Denied as stated. It is admitted that the three (3) individual officers were 

acting under color of law as that term is defined in Section 1983 Jurisprudence. 

 27. Denied as a conclusion of law. The Fourth Amendment does not bar 

police officers from making “warrantless entries . . . when they reasonably believe that a 

person within is in need of immediate aid * * * “the need to protect or preserve life or 

avoid serious injury is justification for what would be otherwise illegal absent an 

exigency or emergency.”” Mincey v. Arizona, 437 U.S. 385, 392, 57 L.Ed 2d 290, 98 S. 

Ct. 2408 (1978); United States v. Richardson, 208 F.3d 626, 629 (7th Cir.) cert. denied, 531 

U.S. 910, 148 L.Ed 2d 188, 121 S. Ct. 259 (2000). See also, Good v. Dauphin County Soc. 

Servs. for Children and Youth, 891 F.2d 1087, 1093 (3rd Cir. 1989) (“The right of the 

police to enter and investigate in an emergency . . . is inherent in the very nature of their 

duties as peace officers . . . “ 

 28. Denied. On the contrary, Dunmire was neither quietly nor peacefully 

occupying his own home. As a consequence, the police made a check of the residence to 

make sure no domestic had been happening inside the residence. 

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 29. The legal conclusions are denied. On the contrary, see Mincey v. Arizona, 

437 U.S. 385, 392, 57 L.Ed 2d 290, 98 S. Ct. 2408 (1978). Mincey v. Arizona, 437 U.S. 385, 

392, 57 L.Ed 2d 290, 98 S. Ct. 2408 (1978); United States v. Richardson, 208 F.3d 626, 629 

(7th Cir.) cert. denied, 531 U.S. 910, 148 L.Ed 2d 188, 121 S. Ct. 259 (2000); and Good v. 

Dauphin County Soc. Servs. for Children and Youth, 891 F.2d 1087, 1093 (3rd Cir. 1989). 

 30. Denied for the reasons stated in Paragraphs 27, 28 and 29. 

 31. Denied for the reasons stated in Paragraphs 27, 28 and 29. 

 32. Denied, denied as a conclusion of law. 

 33. Denied, denied as a conclusion of law. 

 WHEREFORE, Defendant Detz denies any and all liability to Plaintiff and 

demands judgment in his favor together with costs and counsel fees pursuant to 42 

U.S.C. § 1988. 

COUNT II - VIOLATION OF

42 U.S.C. § 1983 – FALSE AREST AND 

UNREASONABLE AND EXCESSIVE FORCE

DUNMIRE v. DETZ AND ZIMMERMAN

 34. The admissions or denials of Paragraphs 1 through 33 are incorporated 

herein by reference as if more fully set forth herein. 

 35. Denied, denied as conclusions of law. 

 36. Denied. 

 37. Admitted. 

 38. Denied for the reasons stated in the answer to Paragraphs 27, 28 and 29. 

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 39. Denied for the reasons stated in the answer to Paragraphs 27, 28 and 29. 

 40. Denied for the reasons stated in the answer to Paragraphs 27, 28 and 29. 

 41. Denied, denied as conclusions of law. 

 WHEREFORE, Defendant Detz denies any and all liability to Plaintiff and 

demands judgment in his favor together with costs and counsel fees pursuant to 42 

U.S.C. § 1988. 

COUNT III – VIOLATION OF

42 U.S.C. § 1983 – FAILURE TO INSTRUCT,

SUPERVISE, CONTROL AND DISCIPLINE

DUNMIRE v. LITITZ AND WARWICK

 42. The admissions or denials of Paragraphs 1 through 43 are incorporated 

herein by reference as if more fully set forth herein. 

 43. It is admitted that all times material Officer Detz was on duty, in uniform, 

acting under color of state law and an employee of the Borough of Lititz. 

 44. No answer is required. 

 45. Denied. 

 46. Denied as stated. At the time in question, Officer Detz was the only 

Borough of Lititz police officer on duty. 

 47. Denied. At the time in question, Officer Detz was the only Borough police 

officer on duty. 

 48. Denied, denied as a conclusion of law. 

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 WHEREFORE, Defendant Borough of Lititz denies any and all liability to 

Plaintiff and demands judgment in its favor together with costs and counsel fees 

pursuant to 42 U.S.C. § 1988. 

COUNT IV – FALSE ARREST, ASSAULT AND HOME INVASION

UNDER PENNSYLVANIA COMMON LAW

DUNMIRE v. DETZ, ZIMMERMAN AND BURGIS

 49. The admissions or denials of Paragraphs 1 through 48 are incorporated 

herein by reference as if more fully set forth herein. 

 50. It is denied that the acts and conduct of the individual Defendants 

constituted assault, battery, false arrest, false imprisonment and trespass to real 

property, trespass to channels, and intentional infliction of emotional distress. 

Alternatively, it is asserted that Officer Detz is entitled to tort immunity under the 

Pennsylvania Governmental Immunity statute, 42 Pa. C.S. § 8541 et seq. 

 WHEREFORE, Defendant Detz denies any and all liability to Plaintiff and 

demands judgment in his favor together with costs and counsel fees pursuant to 42 

U.S.C. § 1988. 

SECOND AFFIRMATIVE DEFENSE

 51. Plaintiff has failed to state a claim upon which relief can be granted. 

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THIRD AFFIRMATIVE DEFENSE

 52. Moving Defendants assert, with respect to state law claims, the bar or 

limitations of the Pennsylvania Governmental Immunity statute. 

THIRD AFFIRMATIVE DEFENSE

 53. Individual Defendant Officer Stephen M. Detz asserts that he is entitled to 

qualified immunity with respect to any and all federal claims. 

FOURTH AFFIRMATIVE DEFENSE

 54. At all times material to this lawsuit, the premises allegedly leased by 

Plaintiff Timothy James Dunmire, 12 South Broad Street, 2nd Floor Apartment, Lititz, 

Pennsylvania, was occupied by himself and 

 (a) Troy Allen Whitmyer; 

 (b) John A. Shober, Jr.; 

 (c) Andrew T. Bolton; 

 (d) Erin Krushinski; 

 (e) Nicole J. Hershman; 

 (f) Aaron H. Yoder; 

 (g) James R.C. Anton; and 

 (h) Barry S. Hopkins, III. 

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FIFTH AFFIRMATIVE DEFENSE

 55. The combined noise and other activity of the occupants of the Dunmire 

apartment created a reasonable belief on the part of Police Officer Detz and the other 

officers that domestic abuse or violence may be taking place in the aforesaid apartment. 

In Mincey v. Arizona, 437 U.S. 385, 392, 57 L.Ed 2d 290, 98 S. Ct. 2408 (1978), the U.S. 

Supreme Court decided that the Fourth Amendment does not bar police officers from 

making “warrantless entries . . . when they reasonably believe that a person within is in 

need of immediate aid. . . . The need to protect or preserve life or avoid serious injury 

is justification for what would be otherwise illegal absent an exigency or emergency.” 

SIXTH AFIRMATIVE DEFENSE

 56. Officers Detz, Zimmerman and Burgis were acting within the perimeters 

of Mincey v. Arizona and subsequent case law when they made their entry into 

Dunmire’s apartment to satisfy that no one was seriously injured or otherwise being 

mistreated. 

SEVENTH AFFIRMATIVE DEFENSE

 57. The Borough of Lititz is immune from the imposition of punitive 

damages. See, Newport v. Fact Concerts, Inc., 453 U.S. 247, 69 L.Ed 616, 101 S. Ct. 2748 

(1981). 

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 WHEREFORE, Defendants Detz and the Borough of Lititz deny any and all 

liability and demand judgment in their favor, together with interest and costs. 

 Respectfully submitted, 

 Lavery, Faherty, Young & Patterson, P.C. 

 By: /s/ Robert G. Hanna, Jr. 

 Robert G. Hanna, Jr., Esquire 

 225 Market Street, Suite 304 

 P.O. Box 1245 

DATE: February 16, 2005 Harrisburg, PA 17108-1245 

 (717) 233-6633 (telephone) 

 (717) 233-7003 (facsimile) 

 Atty No. PA17890 

 rhanna@laverylaw.com 

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CERTIFICATE OF SERVICE

 I, Blanche A. Morrison, an employee with the law firm of Lavery, Faherty, Young 

& Patterson, P.C., do hereby certify that on this 16th day of February, 2005, I served a 

true and correct copy of the foregoing DEFENDANTS, STEPHEN M. DETZ AND 

BOROUGH OF LITITZ, ANSWER TO COMPLAINT TOGETHER WITH 

AFFIRMATIVE DEFENSES, as follows: 

Via electronic service:

 Harry W. Fenton, Esquire 

 Reilly, Wolfson, Sheffley, Schrum and Lundberg, LLP 

 1601 Cornwall Road 

 Lebanon, PA 17042 

 Attorneys for Plaintiffs

Via U.S. first-class mail:

 Carol Ann Murphy, Esquire 

 Margolis, Edelstein & Scherlis 

 The Curtis Center, Suite 400 

 Philadelphia, PA 19106 

Attorneys for Defendants, 

 Eric Zimmerman and David Burgis 

 /s/ Blanche A. Morrison 

 Blanche A. Morrison, Legal Secretary 

 to Robert G. Hanna, Jr., Esquire 

This document has also been electronically filed and is available for viewing and 

downloading from the ECF system. 

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