Dudosh v. City of Allentown

• Decision Date: 18 May 1987
• Docket Number: Civ. A. No. 85-4066.
• Citation: 665 F. Supp. 381
• Parties: Edward DUDOSH, Administrator of the Estate of Kathleen Dudosh v. CITY OF ALLENTOWN, Dean Schwartz and Daniel Warg
• Court: U.S. District Court — Eastern District of Pennsylvania

665 F. Supp. 381

Edward DUDOSH, Administrator of the Estate of Kathleen Dudosh v. CITY OF ALLENTOWN, Dean Schwartz and Daniel Warg

Civ. A. No. 85-4066.

United States District Court, E.D. Pennsylvania.

May 18, 1987.

Richard J. Makoul, Richard J. Orloski, Allentown, Pa., for plaintiff.

Robert G. Hanna, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

The above captioned action was previously before this Court pursuant to the defendants' motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief could be granted. We granted said motion in part and dismissed the plaintiff's pendent state law claims against the City of Allentown in their entirety. We also dismissed the plaintiff's state law claims against the individual defendants Schwartz and Warg for any "negligent acts and/or omissions" that they may have committed. See Dudosh v. City of Allentown, 629 F.Supp. 849 (E.D.Pa.1985). We denied the defendants' motion insofar as it sought dismissal of the plaintiff's §§ 1983 and 1985(3) civil rights claims, 42 U.S.C.A. §§ 1983 and 1985(3) (West 1981), and his pendent state law claim against the individual defendants alleging that their actions constituted "actual malice or willful misconduct" on their part, Id.

Presently before us is the defendants' motion for summary judgment. We may grant the motion only if there is no genuine issue as to any material fact and the defendants are entitled to a judgment as a matter of law. Federal Rule of Civil Procedure 56(c). As we previously stated in General Sound Telephone Co., Inc. v. AT & T Communications, Inc., 654 F.Supp. 1562 (E.D.Pa.1987)

It is now quite clear that as to issues on which the nonmoving party bears the burden of proof, summary judgment may be granted where the moving party demonstrates that there is an absence of proof to support the nonmovant's claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Stated in another way, there is no genuine issue of material fact in dispute if there is insufficient evidence to establish a claim or defense.

When such an argument is made by the moving party, it is the responsibility of the proponent of the claim or defense to demonstrate to the Court that there is sufficient evidence available from which a jury might return a verdict in his favor under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bushman v. Halm, 798 F.2d 651 (3d Cir.1986).

Moreover, the evidence relied upon must be examined in light of the proponent's evidentiary burden at trial. In other words, the Court is obliged to measure the evidence available to defeat the summary judgment motion against the standard to be applied by the jury at trial, whether it be preponderance of the evidence, clear and convincing evidence, or some other standard imposed by the substantive law which governs the issue. Id.

Thus, in determining whether there are factual issues for trial, the Court must examine the record in light of the elements necessary to establish the claim or defense in question and in light of the standard under which the jury will be required to consider the evidence. Only those issues essential to the claim or defense can possibly be material and such issues can be in dispute only if the nonmovant can point to sufficient conflict in the evidentiary sources listed in Fed.R.Civ.P. 56(c) and (e) such that a jury's resolution of the issues is required. The nonmovant may not conjure a genuine issue of material fact by relying upon the allegations of the complaint alone or by relying upon evidence that is merely colorable rather than significantly probative. Anderson 477 U.S. at ___, 106 S.Ct. at 2511, 91 L.Ed.2d 212.

On the other hand, the Court is precluded from considering credibility or weight of the evidence and from drawing its own inferences from the evidence. Id. 477 U.S. at ___, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Id. 654 F.Supp. at 1564; see also, Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987); J.E. Mamiye & Sons, Inc. v. The Fidelity Bank, 813 F.2d 610 (3d Cir.1985) (Becker, J., concurring); and Equimark Commercial Finance Company v. C.I.T. Financial Services Corporation, 812 F.2d 141 (3d Cir.1987). In other words, all inferences from the evidence must be drawn in favor of the nonmoving party. With these precepts in mind, we proceed to examine the merits of the defendants' motion.

I. The Facts.

The parties essentially do not dispute the facts of this case. They are as follows: In July of 1984, a man named Richard P. "Tex" Miller assaulted the plaintiff's decedent, Kathleen Dudosh, allegedly to an extent that she required hospitalization. Miller assaulted the plaintiff again in her hospital room. The Allentown Police Department did not receive a report of either incident.

On October 19, 1984, the deceased obtained a temporary Protection-from-Abuse (PFA) order from the Court of Common Pleas of Lehigh County of the Commonwealth of Pennsylvania pursuant to 35 Pa. S.A. § 10181-10190 (Purdon's Supp.1986). The deceased, in her petition for the temporary PFA order, stated that she and Miller had resided together for approximately two and one-half years, though they were not married. She further alleged in the petition that on October 10, 1984, Miller threatened to kill her and "anyone who got in his way"; that he had a drinking problem and had been hospitalized many times for alcohol abuse; that in October, 1984, Miller "pushed" the deceased, "hit her around", "smashed her furniture and made several threats to kill" himself and her; that on another occasion in October, 1984, Miller "beat up" the deceased two days in a row, requiring her hospitalization for "two weeks", during which Miller assaulted her again; and that in August, 1984, Miller "choked her so hard that he lifted her off the ground two feet while heavily drunk". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. E.) The Allentown Hospital records contained in the record before us, however, reflect that the deceased was admitted to the hospital on July 18, 1984, and was apparently discharged the following day. The records list her "admitting diagnosis" as "depressive disorder". (Id. at Ex. B). While the records do mention complaints by the decedent that Miller had assaulted her, nowhere do the hospital records refer to any physical injuries which required that she be hospitalized. More importantly, the plaintiff has presented no evidence that any of the incidents described in the petition were ever reported to the Allentown police.

On the same day, i.e., October 19, 1984, at 5:11 P.M., the Allentown Police Department received a report of an "unwanted person" at the apartment building where the decedent resided. The complaint had been filed by a "concerned neighbor who heard what she believed to be a disturbance between the (decedent) and (Miller)". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. G). The decedent informed the Allentown police officer who responded to the call that there was no problem. (Id.; see also, deposition of Daryl Hendricks, plaintiff's responses to defendants' summary judgment motion, Paper # 16, Appendix (hereinafter, simply "Appendix") IV).

On October 20, 1984, at 1:30 P.M., the Allentown Police Department received a report of an "unwanted person" at the decedent's residence. Upon the patrolman's arrival, the decedent exhibited the temporary PFA order she had obtained the prior day and informed the officer that Miller had appeared at her apartment door the previous night in an intoxicated state. She stated that she had allowed him to sleep there, but called the police when he did not wake up and leave. The patrolman told Miller to leave and he complied. (Defendants' Motion for Summary Judgment, Paper # 15, Ex. H; see also, deposition of Joseph Stauffer, Appendix III, pp. 3-5).

On November 21 and December 7, 1984, the Allentown police were again called to the decedent's apartment. On both occasions, Miller was again removed from the scene without arrest. (Defendants' Motion for Summary Judgment, Paper # 15, Exs. I and J).

On December 9, 1984, a neighbor of the decedent who resided in the same apartment building reported a "prowler" to the Allentown police. The patrolman who responded to the call learned upon arrival that the "subjects" reported on the fire escape of the structure resided in the building and were using the fire escape due to a "10-40" sleeping in the "breesway (sic)". (Defendants' Motion for Summary Judgment, Paper # 15, Ex. K; see also, deposition of Thomas Houck, Appendix IV, pp. 3-15). The patrolman arrested the "10-40", i.e., Tex Miller, transported him to Allentown Police Headquarters and cited him as a "public drunk". (Id. at Ex. L).

On January 21, 1985, the Lehigh County Court of Common Pleas made the temporary PFA order a permanent order of the court. (Plaintiff's Complaint, ¶ 15, and Defendants' Answer, ¶ 15). The order directed Miller to refrain from abusing or threatening to abuse the decedent and not to go near her residence. The court further ordered that copies of the order be served upon the Allentown Police Department as well as Miller, and that if Miller violated the order he could be found in violation of the Protection From Abuse Act and/or in indirect criminal contempt of the court. (Plaintiff's Supplemental Memorandum of Law to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, Paper # 7, Ex. A); see also, Dudosh v. City of Allentown, 629 F.Supp. at 845, n. 7.

On January 24, 1985, at 1:49 P.M., the deceased filed another report of an "unwanted person" at her residence with the Allentown Police Department. Miller was again sent on his way, but he was not arrested. (Defendants' Motion for Summary Judgment, Paper # 15, Exs. M and N; see also, deposition of Michael S. Popovich, Appendix IV, pp. 3-6).

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