\02_A\LIAB\JJS\LLPG\211630\LYR\04108\00353

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

BY: Joseph J. Santarone, Jr., Esquire

ID# 45723

Suite 1002, One Montgomery Plaza

Norristown, PA 19401

(610) 292-4444

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : Civil Action No: 02-4382

:

v. :

:

ABINGTON TOWNSHIP, CHIEF OF POLICE :

WILLIAM KELLY, POLICE OFFICER NISBET, :

POLICE OFFICER J. KING, POLICE OFFICER :

BRUCE HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER MANN :

AND ABINGTON MEMORIAL HOSPITAL AND :

MARK SHNEA :

DEFENDANTS, ABINGTON TOWNSHIP, CHIEF OF POLICE WILLIAM KELLY,

OFFICER SHAWN NISBET, OFFICER JEANETTE KING, POLICE OFFICER BRUCE

HASLAM, OFFICER JOHN MATZ, OFFICER THOMAS RAWLS, OFFICER SCOTT

SCHOLL AND OFFICER ROBERT MANN, MOTION TO DISMISS PLAINTIFF'S

AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12 (b)(6)

Defendants, by and through their assigned counsel, Marshall, Dennehey, Warner,

Coleman & Goggin and Joseph J. Santarone, Jr., Esquire, hereby file this Motion to Dismiss

Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) and aver the

following:

1. Plaintiff, on or about March 18, 2003, filed an Amended Complaint against moving

defendants arising out of a domestic dispute that began on July 2, 2000 and through a series of

events resulting in plaintiff's arrest. (A copy of Plaintiff's Amended Complaint is attached hereto

as Exhibit "A").

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 1 of 17
2. For the reasons more fully set forth in the Memorandum of Law, which is attached

hereto and incorporated herein by reference, Plaintiff's Amended Complaint should be dismissed

with prejudice.

WHEREFORE, Moving Defendants respectfully request this Honorable Court dismiss

Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Respectfully submitted,

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

___________________________________

JOSEPH J. SANTARONE, JR., ESQUIRE

Attorney for Moving Defendants

DATE: 

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 2 of 17
\02_A\LIAB\JJS\LLPG\211630\LYR\04108\00353

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

BY: Joseph J. Santarone, Jr., Esquire

ID# 45723

Suite 1002, One Montgomery Plaza

Norristown, PA 19401

(610) 292-4444

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : Civil Action No: 02-4382

:

v. :

:

ABINGTON TOWNSHIP, CHIEF OF POLICE :

WILLIAM KELLY, POLICE OFFICER NISBET, :

POLICE OFFICER J. KING, POLICE OFFICER :

BRUCE HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER MANN :

AND ABINGTON MEMORIAL HOSPITAL AND :

MARK SHNEA :

O R D E R

AND NOW, this ________ day of ____________________, 2002, upon consideration of

Defendants, Abington Township, Chief of Police William Kelly, Lt. Bruce Haslam, Officer

Shawn Nisbet, Officer Jeanette King, Officer John Matz, Officer Thomas Rawls, Officer Scott

Scholl and Officer Robert Mann's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to

Federal Rule of Civil Procedure 12(b)6) and any Replies thereto, it is hereby ORDERED that

moving Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule

of Civil Procedure 12(b)(6) is hereby GRANTED.

 

 J.

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 3 of 17
\02_A\LIAB\JJS\LLPG\211630\LYR\04108\00353

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

BY: Joseph J. Santarone, Jr., Esquire

ID# 45723

Suite 1002, One Montgomery Plaza

Norristown, PA 19401

(610) 292-4444

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : Civil Action No: 02-4382

:

v. :

:

ABINGTON TOWNSHIP, CHIEF OF POLICE :

WILLIAM KELLY, POLICE OFFICER NISBET, :

POLICE OFFICER J. KING, POLICE OFFICER :

BRUCE HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER MANN :

AND ABINGTON MEMORIAL HOSPITAL AND :

MARK SHNEA :

CERTIFICATE OF SERVICE

I, Joseph J. Santarone, Jr., Esquire, do hereby certify that a true and correct copy of

Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule of Civil

Procedure 12(b)(6) was served upon all parties by first class mail on the below listed date at the

following addressees:

Gregg L. Zeff, Esquire David R. Zaslow, Esquire

FROST & ZEFF WHITE and WILLIAMS

Pier Five at Penn's Landing 1500 Lancaster Avenue

Philadelphia, PA 19106 Paoli, PA 19301-1500

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

___________________________________

JOSEPH J. SANTARONE, JR., ESQUIRE

Attorney for Moving Defendants

DATE: 

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 4 of 17
02_A\LIAB\JJS\LLPG\211630\LYR\04108\00353

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

BY: Joseph J. Santarone, Jr., Esquire

ID# 45723

Suite 1002, One Montgomery Plaza

Norristown, PA 19401

(610) 292-4444

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : Civil Action No: 02-4382

:

v. :

:

ABINGTON TOWNSHIP, CHIEF OF POLICE :

WILLIAM KELLY, POLICE OFFICER NISBET, :

POLICE OFFICER J. KING, POLICE OFFICER :

BRUCE HASLAM, OFFICER MATZ, OFFICER :

RAWTZ, OFFICER SCHOLL, OFFICER MANN :

AND ABINGTON MEMORIAL HOSPITAL AND :

MARK SHNEA :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS, ABINGTON

TOWNSHIP, CHIEF OF POLICE WILLIAM KELLY, OFFICER SHAWN NISBET,

OFFICER JEANETTE KING, POLICE OFFICER BRUCE HASLAM, OFFICER JOHN

MATZ, OFFICER THOMAS RAWLS, OFFICER SCOTT SCHOLL AND OFFICER

ROBERT MANN, MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT

PURSUANT TO FED. R. CIV. P. 12 (b)(6)

I. BACKGROUND:

Plaintiff, Candace Ray alleges that on or about July 2, 2000, the Abington Township

Police were called to her house due to a domestic dispute. Plaintiff contends that she has a

medical history of bipolar disorder and was having an episode on July 2, 2000. Plaintiff's

fiancée was John R. Grob. Mr. Grob was arrested by Abington Police and escorted from

plaintiff's home. (Plaintiff's Amended Complaint at 18-22).

Plaintiff contends that she arranged to attend her fiancée's arraignment in order to bail

him out. Upon arrival at the arraignment, Ray indicated that she was told to leave this public

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 5 of 17
hearing and complied with those instructions. While exiting the location, plaintiff made a right

onto Mount Vernon Road and stopped in front of the District Justice offices on Easton Road.

Plaintiff alleges that she was stopped on Mount Vernon Road by Abington Police.

Defendant, Officer Nisbet approached the passenger side of plaintiff's vehicle, which apparently

began to roll forward. Defendant was accidentally knocked down because plaintiff contends his

head and upper body were inside of plaintiff's car window. (Id. at 29-36).

Plaintiff alleges that this incident was seen by everyone inside the District Justice offices.

At this point, Abington Police Officer King ran from the Courtroom and grabbed plaintiff's left

arm through the driver's side window. Plaintiff's fiancée at this time was allegedly locked inside

a closet inside the Courtroom. In an attempt to subdue the situation, plaintiff alleges that

defendant, King emptied an entire canister of pepper spray onto plaintiff's face. Plaintiff

screamed from the pain and alleges that everyone inside the Courtroom could hear her cries for

help. (Id. at 39-46).

Plaintiff was arrested and taken to the Abington Township Police Station where she

alleges her request for medical attention were initially ignored. Thereafter, she was isolated and

forcibly stripped naked and hosed down with water while five to six male Police Officers

watched, made lewd, lascivious comments, tormented, taunted, imitated her crying, and ridiculed

her. (Id. at 59).

Plaintiff alleges that she was crying hysterically and was handcuffed during the entire

ordeal. All the while, defendant Officers laughed and ridiculed her. She alleges that pepper

spray ran down into her vagina and severely burned her. John Grob apparently witnessed this

entire ordeal. (Id. at 61-65).

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 6 of 17
Plaintiff was eventually given a paper dress and placed into a wet cell all the while

continuing to cry in pain from being burned by the pepper spray and being denied her repeated

requests to be taken to the hospital. Thereafter, plaintiff was taken to the Abington Memorial

Hospital for treatment.

Plaintiff now brings the present lawsuit against the Abington Township defendants

alleging various Federal and Constitutional Civil Rights violations along with related state law

claims arising out of this ordeal.

II. STANDARD OF REVIEW:

Federal Rule of Civil Procedure 12(b)(6) permits a Court to dismiss all or part of an

action for failure to state a claim upon which relief can be granted. In ruling on a 12(b)(6)

Motion, the Court must accept as true, all well pleaded allegations of fact, and any reasonable

inferences that may be drawn therefrom, in the Plaintiff's Complaint and must determine whether

"under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Nami v.

Fauver, 82 F.3d 63, 65 (3rd Cir., 1996). "The Complaint will be deemed to have alleged

sufficient facts if it adequately puts the defense on notice of the essential elements of the

plaintiff's cause of action." Id.

Although the Court must construe the Complaint in the light most favorable to the

plaintiff, it need not accept as true, legal conclusions or unwarranted factual inferences. Claims

should be dismissed under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can

prove no set of facts in support of her claim which would entitle her to relief." Id.

III. ALLEGATIONS IN PLAINTIFF'S AMENDED COMPLAINT:

Plaintiff's Amended Complaint contains eleven Counts against defendants. Count I

purports to allege a cause of action pursuant to 42 U.S.C. §1983 for violations of plaintiff's

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 7 of 17
Fourth and Fourteenth Amendment rights. Count II alleges a Monell claim against Abington

Township. Count III alleges assault and battery. Count IV alleges a substantive due process

claim. Count V alleges violation of plaintiff's Fourth and Fourteenth Amendment constitutional

rights to be free from illegal searches and seizures. Count VI alleges violation of plaintiff's

privacy rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments. Count VII

alleges a failure to train claim against Defendants, Township of Abington and Chief of Police

William Kelly. Count VIII alleges a negligence claim against Defendants, Abington Memorial

Hospital and Mark Shnea only. Count IX alleges a false imprisonment claim against all

defendants. Count X alleges violations of the Pennsylvania Mental Health Act against all

defendants. Count XI alleges an invasion of privacy claim against Defendants, Abington

Memorial Hospital and Mark Shnea only.

IV. ARGUMENT:

A. Count II of Plaintiff's Amended Complaint Should Be Dismissed With Prejudice

Count II of Plaintiff's Amended Complaint asserts a claim pursuant to 42 U.S.C. §1983

for violation of plaintiff's Civil Rights. Specifically, plaintiff alleges a violation of her rights by

Abington Township.

The United States Supreme Court in Monell v. Department of Social Services, 436 U.S.

658 (1978), held that a civil rights Complaint against a municipality or its agency must allege (1)

the existence of a custom or policy of the municipality which is of such longstanding to have the

force of law; and (2) that one of the municipality's employees violated the plaintiff's civil rights

while acting pursuant to this custom or policy. (Id. at 691-695).

Municipalities do not cause constitutional deviations merely by hiring alleged tort

feasors. Rather, the complaint of injury must be causally linked to a custom or policy of the

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 8 of 17
municipality pursuant to which an employee was acting. Beck v. City of Pittsburgh, 89 F.3d

966, 972 (3rd Cir. 1996). Initially, if the Plaintiffs have suffered no constitutional injury at the

hands of a municipal employee, then Plaintiffs cannot impose liability upon Abington Township.

Without individual wrongdoing, there can be no municipal liability against the township. City of

Los Angeles v. Heller, 475 U.S. 796 (1986).

A municipality cannot be held liable in a §1983 claim for its employees actions on the

basis of respondeat superior. Monell, 436 U.S. at 658. A municipality can be held liable under

§1983 only if plaintiff shows that the actions which violated his civil rights implemented a

policy, ordinance or custom of the local government or were committed by an official high

enough in the government so that his actions can fairly be said to represent a government

decision. Id. at 694.

Plaintiff must allege that the government unit itself supported a violation of Plaintiff's

constitutional rights. Bielevich v. Dubinon, 915 F.2d 845, 850 (3rd Cir. 1990).

Abington Township Police Department does not possess any policy or practice which

authorizes or condones the violation of constitutional rights by its police officials. Moreover,

Plaintiff has failed to allege any particular policy or practice which condones the violation of

constitutional rights or a policy or practice that was violated by an official of the Abington

Township Police Department.

The inadequacy of police training as alleged in Counts II and III of Plaintiff's Amended

Complaint may serve as a basis for §1983 liability only "where the failure to train amounts to

deliberate indifference to the rights of a person with whom the police come into contact".

Canton v. Harris, 489 U.S. 378, 389 (1989). "Only where a municipality's failure to train its

employees in relevant respects evidences a deliberate indifference to the rights of its inhabitants

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 9 of 17
may such a shortcoming be properly thought of as a policy or custom that is actionable under

§1983." The Supreme Court continued, "Deliberate indifference can be shown where the need

for more or different training is so obvious, and the inadequacy is so likely to result in the

violation of constitutional rights, that the policy maker can reasonably be said to have been

deliberately indifferent to the need". Id. at 390.

Plaintiff must allege that deliberate indifference caused the constitutional violations

complained of in his Amended Complaint. As explained above, however, if no constitutional

deprivation occurred, then Plaintiff cannot support a claim against Abington Township based

upon a failure to train theory. Plaintiff's Amended Complaint provides no basis to support a

finding or allegation of defective training, sanctioning, or acquiescence and/or condoning by

Abington Township officials, or a causal connection between the alleged deficiency and

Plaintiff's alleged injuries. Plaintiff has failed to properly allege and also failed to provide

evidence that the township or its police officials acted with deliberate indifference. Plaintiff

cannot show that Abington Township police officials acted with deliberate indifference with

respect to the adequacy of its training program or its policy or practices for its police officers.

Accordingly, Plaintiff's claims regarding constitutional violations of her rights pursuant

to §1983 should be dismissed with prejudice.

B. Moving Defendants Are Entitled to Qualified Immunity

Moving Defendants are entitled to qualified immunity. The United States Supreme Court

has stated that qualified immunity serves to “insulate governmental officials from liability for

assumable damages when the discretionary conduct of that official does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The standard for applying qualified immunity is

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 10 of 17
an objective one. The Supreme Court has instructed that the inquiry must focus on the

“objective reasonableness of an official’s conduct as measured by reference to clearly established

law.” Id.

The Court has further explained that “the contours of the right must be sufficiently clear

that a reasonable official would understand what he is doing violates that right. This is not to say

an official action is protected by qualified immunity unless the very action in question has been

declared unlawful, but it is to say that the unlawfulness must be apparent.” Anderson v.

Creighton, 483 U.S. 635 (1982).

Qualified immunity is an immunity from suit, and not a mere defense to liability. As a

general rule, the issue whether an official is entitled to qualified immunity should be determined

prior to trial, as the purpose of qualified immunity is to protect officials and public employees

from undergoing the burdens of litigation. Mitchell v. Forsythe, 472 U.S. 511 (1985).

In Hunter v. Bryant, 112 S.Ct. 534 (1991), the Supreme Court recognized that “the

qualified immunity standard gives ample room for mistakes of judgment in protecting all but the

plainly incompetent or those who knowingly violate the law. This accommodation for

reasonable error exists because officials should not err always on the side of caution because

they fear being sued.” Id. at 137. As set forth above, the question whether an official is entitled

to qualified immunity is not limited solely to determining whether the official violated clearly

established law. The United States Supreme Court has repeatedly instructed that an official can

be entitled to qualified immunity if that official violated clearly established law, but that the

violation was “objectively reasonable” based upon the information in his possession at the time

of the conduct of which Plaintiff’s complained.

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 11 of 17
In the present case, Moving Defendants contend that the actions and conduct taken by

moving Defendants concerning the arrest of Plaintiff were lawful and proper at all times and

under all circumstances. There has been no violation of clearly established law in any of the

events which form the basis of this lawsuit.

Moving Defendants, therefore, are entitled to qualified immunity as a matter of law and

all of Plaintiff’s claims against moving Defendants should be dismissed with prejudice.

C. Count IV of Plaintiff's Amended Complaint Should Be Dismissed With

Prejudice

Count IV of Plaintiff's Amended Complaint alleges violation of plaintiff's substantive due

process rights as a result of her arrest and detention by the Abington Township defendants, as

well as her allegations of excessive force. Plaintiff brings this particular Count under the

Fourteenth Amendment. However, "the Supreme Court has instructed that all claims that law

enforcement officers have used excessive force in the course of an arrest or seizure of a free

citizen, should be analyzed under the Fourth Amendment and its reasonableness standard, rather

than under a substantive due process approach. Mellott v. Heemer, 161 F.3d 117, 121 (3rd Cir.,

1988) (quoting Graham v. Conner, 490 U.S. 386, 395 (1989).

Accordingly, Count IV of Plaintiff's Amended Complaint should be dismissed with

prejudice.

D. Count VI of Plaintiff's Amended Complaint Should Be Dismissed With

 Prejudice

Count VI of Plaintiff's Amended Complaint alleges violations of plaintiff's constitutional

right to privacy under the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 12 of 17
First Amendment:

Courts have recognized a right to privacy under the First Amendment, but it

is almost exclusively within the context of the freedom of the press concerning

disclosure of a reporter's sources or right to public or broadcast news without

prior restraint.

Wolfson v. Lewis, 924 F. Supp. 1413 (E.D., Pa. 1996)

That is certainly not the case in Plaintiff's Complaint and any right to privacy as alleged

in Plaintiff's Complaint more properly would fall under a Fourth or Fourteenth Amendment

analysis.

Fifth Amendment:

There is no right to privacy under the Fifth Amendment. The Fifth

Amendment applies to the federal government denying a person due

process of the law.

Local 1498 v. AFL/CIO, 522 F.2d 486, 492 (3rd Cir., 1975).

Moving Defendants are state actors. Accordingly, Plaintiff's Fifth Amendment claim to

right to privacy should be dismissed with prejudice.

Ninth Amendment:

The Ninth Amendment provides that "the enumeration in the Constitution,

of certain rights, shall not be construed to deny or disparage others retained

by the people."

While the Ninth Amendment has been held to protect a fundamental right of privacy, that

right was found to exist in the shadows of the penumberas of the Bill of Rights. Griswold v.

Connecticut, 381 U.S. 479 (1965). Scrutinizing the Complaint closely, it is hard to point to any

facts as alleged by plaintiff, which would enable this Court to perceive a violation of any

potential Ninth Amendment right. At least one Circuit Court has observed that the Ninth

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 13 of 17
Amendment has never been recognized as an independent source of Federal Constitutional

rights. Strandberg v. City of Helena, 701 F.2d 744, 748 (9th Cir., 1986). Accordingly, plaintiff's

cause of action under the Ninth Amendment should be dismissed with prejudice.

Fourteenth Amendment:

The constitutional right to privacy is found in the Fourteenth Amendment's

"concept of ordered liberty."

Whalen v. Roe, 429 U.S. 589 (1977).

This right extends to an individual's interest in avoiding disclosure of personal matters

and the interest and independence in making certain kinds of important decisions. Id. This

element is certainly not part of Plaintiff's Amended Complaint and plaintiff has failed to allege

any facts which would support a right to privacy under the Fourteenth Amendment.

Accordingly, plaintiff's right to privacy under the Fourteenth Amendment should be dismissed

with prejudice.

Fourth Amendment:

The prescription against unreasonable searches and seizures in the

Fourth Amendment of the United States Constitution is enforceable

against the states through the Fourteenth Amendment.

Ker v. State of California, 374 U.S. 23 (1963).

Prisoners do not have a right to privacy in their cells. Therefore, the Fourth Amendment

does not apply to cell searches. Hudson v. Palmer, 468 U.S. 517 (1984). While some Courts

have held that prisoners still retain a limited right to body privacy, Courts have found that

plaintiff must allege with specificity a specific prison regulation that is reasonable or not related

to the law enforcement's right to legitimate penological interest. Williams v. Price, 25 F. Supp.

2d 605, 609-611 (W.D., Pa. 1997). Plaintiff has no right to privacy while in her jail cell and

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 14 of 17
moreover, plaintiff has failed to set forth specific facts indicating that the allegations in her

Complaint address in any way the legitimate penological interest of the Moving Defendants.

Accordingly, moving defendants respectfully request that this Honorable Court dismiss

plaintiff's right to privacy cause of action pursuant to the Fourth Amendment with prejudice.

E. Count VII of Plaintiff's Amended Complaint Should be Dismissed With

 Prejudice

Count VII of Plaintiff's Amended Complaint alleges violations against Defendants, Chief

William Kelly and Abington Township for failure to properly train police. Moving Defendants

incorporate by reference their argument with regard to Count II of Plaintiff's Amended

Complaint and the requirements set forth for a Monell claim.

Accordingly, Moving Defendants respectfully request that this Honorable Court dismiss

Count VII of Plaintiff's Amended Complaint with prejudice.

F. Count IX and X of Plaintiff's Amended Complaint Should Be Dismissed

With Prejudice

Count IX of Plaintiff's Amended Complaint alleges a claim of false imprisonment against

all defendants. Count X of Plaintiff's Amended Complaint alleges a violation of Pennsylvania

Mental Health Act against all defendants.

Plaintiff's state law claims, however, should be dismissed as they are barred by immunity

provisions set forth in the Pennsylvania Political Subdivision Torts Claim Act. These claims are

premised on supplemental jurisdiction pursuant to 28 U.S.C. §1367.

Since there are no federal questions against Defendants, this Court lacks subject matter

jurisdiction over Count IX and X of Plaintiff's Amended Complaint. In accordance with 28

U.S.C. §1367 (c)(3) Count IX and X of Plaintiffs' Amended Complaint against Defendants

should be dismissed.

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 15 of 17
Even if this Court were to conclude that certain federal questions still survived in

Plaintiffs' Amended Complaint, Plaintiffs' state law claims against the Township should be

dismissed under the Pennsylvania Tort Claims Act.

The Tort Claims Act grants a local agency and its employees absolute immunity. Section

8541 provides:

Except as otherwise provided in this subchapter, the local agency

shall be liable for any damages on account of any injury to a

person or property caused by any act of a local agency or an

employee thereof or any other person.

Id.

As a local agency, Township of Abington and its employees are immune from liability

unless a cause of action satisfying the requirements of § 8542 can be established.

Under § 8542, liability may be imposed, only, "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)." The

claim alleged must first be cognizable "under common law or a statute creating a cause of action

if the injury were caused by a person not having an available defense" of immunity and, in

addition, if "the injury was caused by the negligent act of the local agency or employee thereof

acting within the scope of his office or duties with respect to one of the categories listed in

subsection (b)." That subsection sets forth eight acts by a local agency or its employees which

may subject the agency to liability. Id.

Plaintiff must show that the cause of action fits within one of § 8542(b)'s exceptions to

immunity. Rhoads v. Lancaster Parking Authority, 520 A.2d 122, 130 (Pa. Cmwl. 1987).

The eight exceptions to the Tort Claims Act are narrowly construed, because of the

legislature's clear intents to prefer immunity for local agency parties. Mascaro v. Youth Study

Center, 523 A.2d 1118 (Pa. 1987).

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 16 of 17
The Tort Claims Act grants immunity to municipal defendants based upon intentional

conduct. The Tort Claims Act, therefore, shields municipalities such as Township of Abington

from state law intentional torts such as malicious prosecution, false imprisonment and assault

and battery. Petula v. Mellody, 631 A.2d 762, 765 (Pa. Commw. 1993); Parsons v. Philadelphia

Office of Drug and Alcohol Abuse, 833 F. Supp. 1108, 1118 (E.D. Pa. 1993).

Plaintiff's state law claims based upon the intentional conduct of the individual police

officers which are asserted against Township of Abington should be dismissed with prejudice as

the Tort Claims Act shields Township of Abington from liability for the intentional conduct of

its employees.

Accordingly, Count IX and X of Plaintiff's Amended Complaint should be dismissed

with prejudice.

WHEREFORE, moving Defendants, respectfully request that this Honorable Court grant

moving Defendants' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Federal Rule

of Civil Procedure 12(b)(6) and dismiss Plaintiff's Amended Complaint with prejudice.

MARSHALL, DENNEHEY, WARNER,

COLEMAN & GOGGIN

___________________________________

JOSEPH J. SANTARONE, JR., ESQUIRE

Attorney for Moving Defendants

DATE: 

Case 2:02-cv-04382-RB Document 15 Filed 05/01/2003 Page 17 of 17