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LOPUSZANSKI v. FABEY

November 18, 1982

STEPHEN LOPUSZANSKI
v.
JOSEPH FABEY and JACK BOCCHINFUSO, Police Officers and THE CITY OF PHILADELPHIA



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 The plaintiff Stephen Lopuszanski instituted this action against the City of Philadelphia (City) and two Philadelphia police officers, Joseph Fabey and Jack Bocchinfuso, for alleged violations of his civil rights in contravention of 42 U.S.C. § 1983. Mr. Lopuszanski has also asserted pendent state law claims for false arrest, false imprisonment, intentional infliction of emotional distress and malicious prosecution.

 All defendants have filed a motion to dismiss the action. For the reasons which follow, the motion will be granted in part and denied in part.

 FACTS *fn1"

 The plaintiff, in February 1981, responded to an advertisement in a newspaper and purchased an automobile from an Hispanic male. Seven months later, defendant police officers questioned the plaintiff about the purchase of the automobile. They had recently arrested an Hispanic male for car theft of a similar type vehicle. Plaintiff Lopuszanski produced a bill of sale and cancelled check for the purchase and explained the circumstances surrounding the purchase of the automobile. The police officers expressed their belief that Mr. Lopuszanski had done nothing wrong, but explained that parts of plaintiff's automobile had been stolen and placed on the automobile prior to the sale to plaintiff.

 In response to the police officers' request, the plaintiff looked at a number of photographs in an attempt to identify the person who had sold him the automobile. The police officers threatened to arrest the plaintiff if he did not identify as the seller of the car a particular individual pointed out by them. The plaintiff was not able to identify this particular individual in the photograph as the seller of the car and refused to do so.

 The police officers then arrested the plaintiff and charged him with theft of an automobile, receiving stolen property, criminal conspiracy and altering the serial number of an automobile. Mr. Lopuszanski was photographed, fingerprinted and imprisoned pending preliminary arraignment. At the preliminary hearing on the above criminal charges, the plaintiff was discharged.

 Section 1983 action against the City of Philadelphia.

 It is beyond dispute that, under section 1983, a municipality cannot be liable under a theory of respondeat superior for the actions of its employees. Monell v. Department of Social Services, 436 U.S. 658, 691-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Before a municipality may be liable in damages under section 1983, the plaintiff must prove either a formal policy or an informal custom, which is of such long standing as to have the force of law, that causes an unconstitutional deprivation of a claimant's civil rights. Id.

 There is no allegation whatever in plaintiff's complaint that the alleged actions of defendant police officers were part of a formal policy or informal custom of the defendant City of Philadelphia. In fact, except for the mention of the City in the caption of this action, the statement that the City is a municipality, and the averments that defendants were employees of the City and acting within the scope of employment, there is no mention of the City in the complaint.

 It is clear that any claim against the City under section 1983 is based on a theory of respondeat superior and impermissible under the law as set forth in Monell, supra. Defendant City of Philadelphia's motion to dismiss the claim against it under 42 U.S.C. § 1983 will be granted.

 Section 1983 claims against the defendant police officers.

 The plaintiff's allegations, that he was threatened with arrest if he did not identify a particular person as the seller of the automobile and that, upon failure to identify that individual, the plaintiff was arrested and incarcerated, does set forth with the requisite specificity a claim for a violations of civil rights. See Ross v. Meagan, 638 F.2d 646, ...


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