Estate of Cooper By and Through Cooper v. Leamer

• Decision Date: 10 February 1989
• Docket Number: Civ. A. No. 87-1560.
• Citation: 705 F. Supp. 1081
• Parties: ESTATE OF David COOPER By and Through Denice COOPER, Administratrix of the Estate, Denice Cooper, individually, Denice Cooper, as legal guardian of the minor, David Cooper, Delmer Lee Cooper, and Margaret Cooper, Plaintiffs, v. Mark LEAMER, Harry Ersek, Ralph Fritz, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

705 F. Supp. 1081

ESTATE OF David COOPER By and Through Denice COOPER, Administratrix of the Estate, Denice Cooper, individually, Denice Cooper, as legal guardian of the minor, David Cooper, Delmer Lee Cooper, and Margaret Cooper, Plaintiffs, v. Mark LEAMER, Harry Ersek, Ralph Fritz, Defendants.

Civ. A. No. 87-1560.

United States District Court, M.D. Pennsylvania.

February 10, 1989.

John Wendell Beavers, John Brendan Elbert, Philadelphia, Pa., for plaintiffs.

Robert G. Hanna, Jr., Philadelphia, Pa., and Frank J. Lavery, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Harrisburg, Pa., for County of Bedford & Ralph Fritz.

David E. Lehman, Alan R. Boynton, Jr., McNees, Wallace & Nurick, Harrisburg, Pa., for Mark Leamer, Harry Ersek & County of Huntingdon.

MEMORANDUM

CALDWELL, District Judge.

Introduction

Currently before the court in this civil rights action are the defendants' Fed.R.Civ. P. 56 summary judgment motions. Because they present many similar, if not identical issues, we shall discuss the motions jointly in this memorandum.

Background

This case arises from the November, 1986, shooting death of David Cooper, a twenty-three year old convicted felon and escapee from the Bedford County Jail. Armed with warrants for Cooper's arrest and suspecting that he might appear at his parents' remote mountain property in Huntingdon and Bedford Counties, the defendants placed the property under surveillance. In light of Cooper's and his family's prior contacts with law enforcement officials, the defendants believed that Cooper could be armed and dangerous.¹

On November 9, 1986, Huntingdon County Sheriff Leamer, Huntingdon County Deputy Sheriff Ersek, and Bedford County Deputy Sheriff Fritz were watching the Cooper property when David Cooper and his wife Denice approached in a car and stopped at a nearby shed. They spoke briefly, Denice Cooper drove away and David Cooper entered the building. The defendants attempted to follow him, but found the door to be locked from the inside. The two deputy sheriffs then positioned themselves on opposite sides of the shed, apparently to prevent Cooper's escape, and Sheriff Leamer went to call for assistance. Before Leamer returned, Cooper emerged from the shed. Fritz made his presence known, held up his badge and shouted, "Police, freeze." Cooper immediately fled from Fritz's sight and, as he rounded the corner of the shed, confronted Ersek who, with a single shotgun blast at a short range, fatally wounded him.

Questions exist whether Cooper was armed when he exited the shed. Fritz and Ersek testified at their depositions that he wielded a handgun and displayed it in a threatening manner. Fritz contends that Cooper emerged in a two-handed shooting position and Ersek maintains that Cooper turned toward him with the gun. A pathologist who conducted Cooper's autopsy testified at his deposition that he found a shoulder holster and eleven shells on Cooper's body. The plaintiffs allege that Cooper was unarmed at the time of his death and assert that the police "planted" a gun after the shooting. Denice Cooper testified that she witnessed the shooting and did not see a gun in the decedent's possession or near his body.²

Discussion

1. Summary Judgment Standard

The standard for evaluating a motion for summary judgment, set forth in Fed.R. Civ.P. 56, was explained in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986):

At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.... There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict...."

Id. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. In answering that question, all facts and inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Jackson v. University of Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 732, 98 L.Ed.2d. 680 (1988). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. Finally, "although courts are to resolve any doubts as to the existence of genuine issues of fact against the parties moving for summary judgment, Rule 56(e) does not allow a party resisting the motion to rely merely on bare assertions, conclusory allegations or suspicions." Fireman's Insurance Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982) (footnotes omitted).

2. Service of Process

Defendants Ersek and Leamer claim this action should be dismissed because the plaintiffs have not complied with the mandatory service of process provisions of Fed.R.Civ.P. 4(d). The plaintiffs delivered the complaint to the Huntingdon Police Department, but Ersek and Leamer are members of the Huntingdon County Sheriff's Department, a separate entity. The police department has no authority or duty to accept service for the sheriff's department.

While we find no error in the defendants' argument, we are persuaded that a more liberal construction of Fed.R.Civ.P. 4(d) is appropriate in this case. Adams v. School Board of Wyoming Valley West School District, 53 F.R.D. 267 (M.D.Pa.1971). Rule 4(d) is to be interpreted broadly where the defendants have actual notice of the suit. See Nowell v. Nowell, 384 F.2d 951 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968); In Re Paolino, 49 B.R. 834 (Bankr.E.D.Pa. 1985). Since we see no prejudice to the defendants, the plaintiffs' action will not be dismissed for failure to effect proper service.

3. Plaintiffs' State Wrongful Death/Survival Claims: Counts V and VI

Though the complaint primarily alleges civil rights violations, the plaintiffs have raised claims based on Pennsylvania's wrongful death and survival statutes, 42 Pa.C.S.A. §§ 8301 and 8302. The defendants first challenge the wrongful death claims on the ground that the named plaintiffs lack standing to assert them and that only Cooper's administratrix may do so. The defendants are partly correct.

In an action brought to recover damages for wrongful death, we must distinguish between those persons entitled to maintain such an action and those entitled to recover. Upon proper proof, Cooper's wife, son and parents are entitled to recover damages for his alleged wrongful death. 42 Pa.C.S.A. § 8301(b). However, it does not follow that they all may assert claims in their own names. The determination of who may maintain the action is controlled by Pa.R.C.P. 2202, which provides as follows:³

(a) Except as otherwise provided in cause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.

(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.

(c) While an action is pending it shall operate as a bar against the bringing of any other action for such wrongful death.

Since this action was instituted more than six months after Cooper's death, the wrongful death claims may be maintained by Denice Cooper in her capacity as the decedent's administratrix, or by Denice, David, Delmer or Margaret Cooper as trustee ad litem on behalf of the others.

The plaintiffs have not complied with Rule 2202. We recognize, however, that their error is purely technical in nature. Accordingly, they will be afforded the opportunity to amend Count V either to name Denice Cooper as plaintiff in her capacity as administratrix, or to name any one of the plaintiffs as trustee ad litem on behalf of all persons entitled to share in the damages.

The defendants next challenge the plaintiffs' right to recover punitive damages in a wrongful death action. Clearly, no such right exists. Harvey v. Hassinger, 315 Pa.Superior Ct. 97, 461 A.2d 814 (1983). Therefore judgment will be entered for the defendants on the punitive damages claim in Count V.

In Counts V and VI, the plaintiffs have requested attorney's fees under state and federal law. In Pennsylvania, the general rule is that each party is responsible for his own counsel fees. Hankin v. Hankin, 338 Pa.Superior Ct. 442, 487 A.2d 1363 (1985), rev'd in part, 507 Pa. 603, 493 A.2d 675 (1985); Estate of Wanamaker, 314 Pa. Superior Ct. 177, 460 A.2d 824 (1983). The Pennsylvania Supreme Court has written that "`there can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same ...', Smith v. Equitable Trust Co., 215 Pa. 413, 417, 64 A. 591, 592 (1906), or clear agreement by the parties, Fidelity-Philadelphia Trust Company v. Philadelphia Transportation Company, 404 Pa. 541, 548, 173 A.2d 109, 113 (1961), or some other established exception, see Hempstead v. Meadville Theological School, 286 Pa. 493, 134 A. 103, 49 A.L.R. 1145 (1926)." Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 300-301, 344 A.2d 837, 842 (1975) (quoting Corace v. Balint, 418 Pa. 262, 271, 210 A.2d 882, 886-87 (1965); Shapiro v. Magaziner, 418 Pa. 278, 280, 210 A.2d 890, 892 (1965)). Since the plaintiffs have directed the court to no statutory provision, agreement or exception to the general rule, judgment will be entered for the defendants on the request...