The opinion of the court was delivered by: TROUTMAN
This is a Civil Rights case in which plaintiff contends that her husband's tragic death resulted from unconstitutional conduct on the part of the named defendants, for which conduct she seeks damages. All defendants seek dismissal or summary judgment.
Plaintiff's decedent, Matthew Donaldson, was traveling eastward on the Pennsylvania Turnpike (the Turnpike) on October 7, 1975, at approximately 6:50 P.M., at which time he was stopped by defendant State Trooper Joseph Hovanec for the reason that Donaldson had been traveling at the rate of sixty-six (66) miles per hour, which speed was in excess of the fifty-five mile per hour speed limit posted at that time. Hovanec immediately issued a citation for this alleged motor vehicle code violation. Subsequently, Hovanec charged Donaldson with resisting arrest and took him into custody. Hovanec then contacted defendant Trooper Franklin Albright, and they met at the Morgantown Interchange of the Turnpike. From there, they proceeded to District Justice George Wenger's Magistrate Court, wherein a complaint was issued charging Donaldson with resisting arrest, and an additional charge of speeding was filed. Bail was set at $ 500.00 for resisting arrest and $ 20.00 for speeding. Donaldson paid these sums by check and was released.
As Donaldson was being returned to his vehicle, he complained of severe pains in his chest and arms. Defendants drove him to the Reading Hospital, in West Reading, Pennsylvania. There he collapsed from a myocardial infarction, and died at 11:07 P.M.
Plaintiff filed a complaint alleging that the arrest was in violation of decedent's rights as secured by the Fourteenth Amendment and 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Jurisdiction has been averred under 28 U.S.C. §§ 1331 and 1343. The complaint alleges that Hovanec acted unconstitutionally in that the arrest was improper and unnecessary, and was accomplished through the use of excessive force. The complaint also charges Albright with abusive and unconstitutional conduct and with conspiring with Hovanec to deprive Donaldson of his civil rights. Count 3 of the complaint then alleges that all remaining defendants, Henry Stabler, Newton Robbins and James Barger, and the Pennsylvania State Police (the State Police defendants), and Egidio Cerilli, Jack Greenblatt, Ray Bollinger and Peter Camiel and the Pennsylvania Turnpike Commission (the Turnpike defendants) are liable in their supervisory capacities. Plaintiff also alleges a claim under the laws of Pennsylvania, pursuant to this Court's pendent jurisdiction, for both negligent and wilful conduct resulting in the death of plaintiff's decedent.
The Turnpike defendants first moved for dismissal, and plaintiff responded. In her response, plaintiff stated that "Plaintiff abandons her claims under 42 U.S.C.A. §§ 1985 and 1986." Subsequently, the State Police defendants filed a motion to dismiss or for summary judgment. This motion was accompanied by an affidavit by Hovanec, around which much of the controversy of this case centers. In her response, plaintiff agreed that defendant Pennsylvania State Police, as opposed to the individual State Police defendants, was immune to liability pursuant to Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), and stated that she did not oppose the motion of that defendant to dismiss. Subsequently, there was an additional memorandum submitted by all the State Police defendants, and that was accompanied by a supplemental affidavit by Hovanec; after that, numerous other memoranda have been filed by the parties asserting various legal contentions.
There emerged from these various contentions two procedural obstacles. The first concerned plaintiff's actions against the supervisory defendants, that is, all defendants except Hovanec and Albright. Plaintiff alleged in Count III that the supervisory defendants violated the decedent's civil rights by:
"a. Selecting and/or retaining the Defendants Hovanec and Albright for service in the Pennsylvania State Police and Defendant Pennsylvania Turnpike Commission;
c. Failing to identify the Defendants Hovanec and Albright as persons likely to engage in abusive and unconstitutional conduct towards citizens.
d. Failing to review adequately the personal and employment histories of said Defendants and their activities as shared employees of Defendants Pennsylvania State Police and Pennsylvania Turnpike Commission.
e. Failing to prevent such abusive and unconstitutional conduct towards citizens such as decedent by placing said Defendants in positions within Defendant Pennsylvania State Police and/or Defendant Pennsylvania Turnpike Commission where they could not have had the opportunity to engage in such abusive and unconstitutional conduct;
f. Failing to require reassignment of said Defendants so that they could not have had the opportunity to engage in abusive and unconstitutional conduct towards users of the Pennsylvania Turnpike.
g. Failing to provide adequate instruction and training to the Defendants Hovanec and Albright in the purpose and scope of their authority, in the proper procedures to enforce the traffic rules and regulations of Defendant Pennsylvania Turnpike Commission, and the traffic and criminal laws of the Commonwealth of Pennsylvania, and in the proper procedures to uphold the name and reputation of Defendants Pennsylvania State Police and Pennsylvania Turnpike Commission."
Plaintiff thus alleged that there was evidence in the employment records of Hovanec and Albright indicating that they were of vicious dispositions and very likely to resort to violence. Plaintiff asserted that this information was in the possession of the supervisory defendants, and that they had knowledge of such violent tendencies, but acquiesced in the alleged wrongdoing by not denying these troopers the opportunity to abuse users of the Turnpike. The State Police defendants refused to release the records of the two troopers absent a court order.
The Court resolved the issue by conducting an In camera inspection of all materials in the files of Troopers Hovanec and Albright that were in possession of the State Police prior to October 7, 1975. After completing the inspection, the Court made the following findings and issued the following statement to counsel and the parties:
"This is to advise that, pursuant to agreement of counsel, we have examined, in camera, the complete personnel files in the possession of the Pennsylvania State Police pertaining to Joseph Hovanec and Franklin Albright handed to us by Sergeant Thomas J. Hannus, Bureau of Personnel, including reports, records, writings, notes, memoranda and other data pertaining to citizens complaints, claims of alleged misconduct, internal discipline and disciplinary measures and procedures, internal and other disciplinary charges, sanctions and penalties imposed, if any, traffic arrest records and custodial arrest histories as to which citizens complaints were filed or received and other information contained in said personnel files and we find and conclude that there are no facts or information therein which is or are legally relevant to the plaintiffs' complaints and no facts or information therein which would constitute possible notice to supervisory personnel that the defendants had engaged or were likely to engage in violent or unconstitutional conduct in the making of arrests or in otherwise discharging their duties as police officers."
This obstacle was resolved through a stipulation entered into by all counsel that plaintiff would be permitted to submit to the Court any handwritten notes of decedent for purposes of opposing the State Police defendants' motion for summary judgment without waiving the Act and her rights to object to the admissability of the Hovanec affidavit or any testimony by Hovanec in any hearing. All other parties reserved the right to make legal objection to any testimony, affidavit or evidence presented either on motion or at trial.
Pursuant to this stipulation, plaintiff submitted an affidavit of Matthew Donaldson, Jr., son of the decedent and co-counsel for plaintiff, to authenticate the notes as having been written by the decedent. Along with this affidavit plaintiff submitted photostatic copies of the notes. Subsequently, the parties again submitted memoranda asserting various contentions dealing with, Inter alia, the issue as to what notes, considered with the Hovanec affidavits, give rise to genuine issues of material fact.
Plaintiff represented in one of her subsequent memoranda that she was waiving her rights to invoke the Pennsylvania Dead Man's Act. She also revoked her earlier agreement that the Pennsylvania State Police were immune to liability under the Eleventh Amendment, and this elicited responses from all defendants. Now that all memoranda have been submitted and all procedural hurdles have been cleared, the motions pending before this Court are ripe for disposition.
LIABILITY OF THE SUPERVISORY DEFENDANTS
In an action under 42 U.S.C. § 1983, a supervisory official is only liable if he is personally involved in the alleged wrongdoing. Goode v. Rizzo, 506 F.2d 542 (3d Cir. 1974), reversed on other grounds, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Via v. Cliff, 470 F.2d 271 (3d Cir. 1972); Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Coggins v. McQueen, 447 F. Supp. 960 (E.D.Pa.1978); Fialkowski v. Shapp, 405 F. Supp. 946 (E.D.Pa.1975); Wilkerson v. Mock, 403 F. Supp. 971 (E.D.Pa.1975). An official in a supervisory position cannot be liable for the conduct of his subordinates merely under a theory of vicarious liability based on Respondeat superior. See Goode v. Rizzo, supra; Hampton v. Holmesburg Prison Officials, supra. To be liable, a supervisory official must either direct the wrongful conduct or have actual knowledge of the wrongdoing and acquiesce in it. See Via v. Cliff, supra, at p. 276. Such acquiescence can be inferred from a history of episodes indicating the supervisory official had actual knowledge of the wrongdoings. Bracey v. Grenoble, supra; Wright v. McMann, 460 F.2d 126 (2d Cir. 1972), Cert. denied, 409 U.S. 885, 93 S. Ct. 115, 34 L. Ed. 2d 141 (1972); Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), Cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973). An official who knows of an incident and fails to take steps to prevent a recurrence can be found to be liable under § 1983. Marvasi v. Shorty, 70 F.R.D. 14 (E.D.Pa.1976); Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973). There is authority that if a superior official is aware of a history of complaints against a subordinate that indicate a violent propensity in the subordinate, and the superior official fails to take steps to control the subordinate, the superior may be liable under § 1983. Moon v. Winfield, 368 F. Supp. 843 (N.D.Ill.1973); Sims v. Adams, 537 F.2d 829 (5th Cir. 1976).
We note that plaintiff has already said that she has abandoned her claims under §§ 1985 and 1986, and has not revoked that statement. We note further that there is no evidence whatsoever of conspiratorial conduct prior to the stop. Hovanec's affidavit states that he alone made the decision to order the stop, and that no one else knew of such decision, much less participated in the decision. There is no evidence to contradict this averment by Hovanec, and plaintiff's decision to abandon her conspiracy claims under §§ 1985 and 1986 further suggests that none of the defendants are liable under those sections.
Finally, plaintiff purports to state a claim under § 1988. However, § 1988 does not create a remedy, but merely complements other statutes that do create federal causes of action, furnishing suitable remedies through principles of state law when the federal law is unsuited or insufficient. See Moor v. County of Alameda, 411 U.S. 693, 702, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973).
Therefore, there is no basis for liability against any of the supervisory defendants under any of the statutes cited, and we will therefore grant the motions of all supervisory defendants for summary judgment.
LIABILITY OF HOVANEC AND ALBRIGHT
Plaintiff has alleged that Hovanec violated decedent's constitutional rights in two respects. First, she asserts that the decision to arrest decedent was an unconstitutional deprivation of decedent's rights; second, she claims that the ...