In re City of Philadelphia Litigation

• Decision Date: 25 January 1994
• Docket Number: Civ. A. No. 87-2678.
• Citation: 849 F. Supp. 331
• Parties: In re CITY OF PHILADELPHIA LITIGATION. Ramona AFRICA v. CITY OF PHILADELPHIA, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

849 F. Supp. 331

In re CITY OF PHILADELPHIA LITIGATION Ramona AFRICA v. CITY OF PHILADELPHIA, et al.

Civ. A. No. 87-2678.

United States District Court, E.D. Pennsylvania.

January 25, 1994.

COPYRIGHT MATERIAL OMITTED

Thomas R. Kline, Alvin F. de Levie, Donald M. Temple (co-counsel), Philadelphia, PA, for plaintiffs.

Carl Oxholm III, Deputy City Sol., Philadelphia, PA, for Frank Powell, Fire Commissioner Wm. B. Richmond, W. Wilson Goode, Leo A. Brooks, Gregore Sambor, and the City of Philadelphia et al.

Gerard Lavery Leverer, Philadelphia, PA, for Louise James (third party deft.).

Michael A. Fenasci, New Orleans, LA, for Zelma Dotson Harrigan.

Michael A. Fenasci, A. Remy Fransen, Jr., New Orleans, LA, for Claire Leak and Louise James.

Anthony D. Jackson, Philadelphia, PA, for Thomas Mapp, Sr., et al.

Carl Oxholm, III, Divisional Deputy City Sol., Philadelphia, PA, for Edward Rendell.

Laura Fredricks, John O.J. Shellenberger, Office of Atty. Gen., Philadelphia, PA, for Richard L. Reed and Morris Demsko.

Bruce M. Rotfeld, Rotfeld & Rotfeld, Philadelphia, PA, for Nathaniel Galloway.

Theodore G. Otto, III, Chief Counsel, Camp Hill, PA, for Department of Corrections.

Seymour Kurland, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, for Ramona Johnson Africa.

Joseph Torregrossa, Morgan, Lewis & Bockius, Philadelphia, PA, for Alfonso Robbins Africa.

Carl Oxholm, Philadelphia, PA, for Albert Revel, Frank Powell, Michael Tursi and William Klein.

Michael A. Fenasci, Gretna, LA, Thomas A. Sprague, Peter L. Gallagher, Philadelphia, PA, for Claire Leak.

Peter C. Kennedy, Hecker, Brown, Sherry & Johnson, Philadelphia, PA, for William Richmond.

E. Jane Hix, Chief Asst. City Sol., Philadelphia, PA, for City of Philadelphia, Willie Goode, Leo A. Brooks, George Sambor, William Richmond and Richard Reed.

Lloyd George Parry, Davis, Riter, Parry & Hartmann, Philadelphia, PA, for Michael Tursi.

Leslie M. Gerstein, Fox, Rothschild, O'Brien & Frankel, Philadelphia, PA, for Leo A. Brooks.

Fincourt B. Shelton, Philadelphia, PA, for Louise James.

Robert J. Marano, Law Offices of Edward J. Wilbraham, Philadelphia, PA, for Albert Revel.

OPINION^*

LOUIS H. POLLAK, District Judge.

What we have for consideration today are three cases growing out of the tragic events of May 13, 1985 in which, unhappily, as too many people in this city will recall, in an effort to arrest certain members of the MOVE organization, an explosive device was dropped on the MOVE residence at 6221 Osage Avenue. A fire ensued, and of the thirteen persons inside the MOVE dwelling on that late spring afternoon, only two, one child and one adult, survived. In addition to the destruction of that residence and eleven of the thirteen people within, there was a conflagration which consumed in substantial measure large numbers of adjacent homes.

Much litigation has ensued. The bulk of it was consolidated in this court under the master caption Number 85-2745. That was a repository for the papers and numerous lawsuits, some of them brought by or on behalf of those at 6221 Osage Avenue, the bulk of them brought by or on behalf of adjacent property owners, against a large array of official defendants charged in one manner or another with violating federal and state legal norms. The large bulk of these cases have been settled. The three which are to be addressed today have not been settled. They all grow directly out of the events at 6221 Osage Avenue. The three cases in the order of their filing are Louise James v. The City of Philadelphia, et al., Civil Action No. 85-3528, Ramona Africa v. The City of Philadelphia, et al., Civil Action No. 87-2678, and Alfonso Leaphart v. The City of Philadelphia, et al., Civil Action No. 87-2756.

In the James case, the plaintiff Louise James is suing on behalf of her son Frank James, also known as Frank Africa, who perished in the conflagration at 6221 Osage, and she is also suing in her capacity as owner of 6221 Osage. Alfonso Leaphart sues on behalf of another person who died in the blaze, Vincent Leaphart, also known as John Africa. Ramona Africa, who is present here in this courtroom, is the one adult who survived the blaze. She sues the City of Philadelphia and many individual defendants. We will first consider Ms. Africa's case.

We consider her case, as we will in due course consider the cases of Ms. James and Mr. Leaphart, on the basis of the report and recommendation filed by my very distinguished former colleague Magistrate Judge William F. Hall, Jr. in October of 1993. I say, with regret, "former colleague" because as of December 31, 1993, Judge Hall's remarkable tenure as one of the important figures in the administration of justice in this district came to an end as he retired from office. Judge Hall has for many years contributed greatly to the vindication of the highest principles of the law, and his management of this extraordinary litigation, which has been consolidated under his supervision for these past many years, has been exemplary — but exemplary in the style of a judge who knows only excellence.

Ramona Africa's case, like its companion cases, precipitated years of discovery, of pre-trial inquiry into the facts surrounding the events of May 13, 1985. After this extended period of discovery, the many defendants moved for summary judgment with respect to the several claims Ms. Africa presented. Her several claims may be briefly summarized as follows. There were three sets of federal claims, the first under Section 1983 of Title 42 in effect alleging that the assault on 6221 Osage violated her constitutional rights. Second, Ms. Africa alleged not only that she was physically assaulted by the bombing and the ensuing fire but that her First and Fourteenth Amendment rights to freedom of speech and freedom of religion were trespassed upon by the defendants. And the third of her federal claims was an allegation, pursuant to 42 U.S.C. § 1985(3), of a conspiracy among the defendants to deprive her of her entitlement to equal treatment under the laws. In addition, Ms. Africa alleged claims arising under Pennsylvania law, claims which essentially mirror her claims of assault, of grossly disproportionate use of force against her in violation of Section 1983, the first and principal of the federal claims.

Those sued by Ms. Africa, in addition to the City of Philadelphia, numbered among them former Mayor Wilson Goode, former Managing Director Leo Brooks, former Police Commissioner Gregore Sambor, former Fire Commissioner William Richmond, former District Attorney Edward Rendell, Police Lieutenant Frank Powell, Officers William Klein, Michael Tursi, and Sergeants Albert Revel and Edward Connor of the Philadelphia Police Force, and finally Corporal Morris Demsko and State Trooper Richard Reed of the Pennsylvania State Police.

The principal, though to be sure not the only, issues tendered by the motions for summary judgment were claims that the various defendants were protected from suit by doctrines of qualified immunity. In general, the doctrine of immunity provides that officials should be insulated from suits for torts arising out of their official activity and with which they are charged, provided that the allegedly tortious conduct is conduct which they could have reasonably supposed to have been lawful at the time committed. The purpose of doctrines of immunity, both absolute — and in one instance, one of the defendants asserted absolute immunity — and qualified immunity, the purpose of these doctrines is to make sure that public officials are able to carry out their duties without looking over their shoulder at every moment in fear that litigation may ensue from one or another action taken, purposefully and forcefully, to carry out their duties.

On March 3, 1992, Judge Hall issued a report and recommendation concluding that former District Attorney Rendell, who was charged by Ms. Africa with having authorized search and arrest warrants of MOVE members without probable cause, was immune from suit on that complaint. It was Judge Hall's view that making such a decision as to the appropriateness of the warrants was exactly within the scope of District Attorney Rendell's official functions and that he was cloaked with immunity in making such decisions. On December 8, 1992, I sustained Judge Hall's report and recommendation with respect to former District Attorney Rendell and entered an order dismissing him from this lawsuit, granting summary judgment in his favor. I did not adopt exactly the same rationale as that propounded by Judge Hall. I concluded that Mr. Rendell was entitled to qualified, not absolute, immunity in a context in which, so it seemed to me, he did have probable cause to issue the warrants in question.

On March 26, 1992, Judge Hall filed a report and recommendation which dealt with the claims of immunity of all of the other individual defendants and also the claim of the City of Philadelphia that it was exempt from suit. Judge Hall concluded that no immunity was owing to any of the defendants, with the exception of Officer Tursi and Sergeants Revel and Connor. Judge Hall reasoned that the responsibilities of those officers had to do with an attempt, which was abandoned, to drill holes into the walls adjacent to 6221 Osage with a view to injecting tear gas into 6221 in that fashion. When that tactic was unavailing, the decisions were taken at higher levels to proceed in the alternate fashion leading to the dropping of an explosive device to which I have referred. But since Officer Tursi and Sergeants Revel and Connor were not involved in those further decisions, Judge Hall concluded that they should be dropped from the case, and I approved their dismissal on August 18, 1992. However, Judge Hall concluded as to the other defendants who were implicated, except for Fire Commissioner Richmond, in the development and execution of the plan to drop a bomb on 6221 Osage, that that was a...