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CHARLES E. MORRIS AND SANDRA C. MORRIS v. ALVIN H. MUSSER AND YORK TOWNSHIP (07/20/84)

decided: July 20, 1984.

CHARLES E. MORRIS AND SANDRA C. MORRIS, APPELLANTS
v.
ALVIN H. MUSSER AND YORK TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of York County in case of Charles E. Morris and Sandra C. Morris v. Alvin H. Musser and York Township, No. 82-S-2345.

COUNSEL

Lewis H. Markowitz, with him, Marc G. Tarlow, Markowitz & Seidensticker, of counsel, John W. Thompson, Jr., for appellants.

Raymond L. Hovis, with him, Jane H. Schussler, Stock and Leader, for appellees.

Timothy I. Mark, Goldberg, Evans & Katzman, P.C., for intervenors, Family Restaurants of Pennsylvania, Inc. t/d/b/a Pappy's Family Pub.

Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 84 Pa. Commw. Page 171]

Plaintiffs, Charles E. Morris and Sandra C. Morris (his wife), appeal from an order of the Common Pleas Court of York County, which dismissed their complaint alleging that the defendants, York Township and its police officer, Alvin H. Musser, failed to provide adequate police protection.

On June 28, 1980 four assailants invaded plaintiffs' Gulf Service Station, viciously beat Mr. Morris, who suffered multiple injuries including a fractured jaw, and struck and terrorized Mrs. Morris, who vainly attempted to shield her unconscious husband from further punishment. Although on duty and apprised of the attack, officer Musser did not intervene in sufficient time to prevent or reduce plaintiffs' injuries.

[ 84 Pa. Commw. Page 172]

In a prior incident, officer Musser had refused to assist crime victims in jeopardy.

Contending that officer Musser's dilatory response proximately caused or aggravated their injuries, and that York Township continued to employ him despite a prior failure to aid crime victims in extremis, plaintiffs seek damages under common law negligence theories, the Civil Rights Act of 1871, 42 U.S.C. ยง 1983, and the Fourteenth Amendment to the United States Constitution. The common pleas court sustained defendants' preliminary objections in the nature of a demurrer and dismissed the complaint with prejudice.

State tort claims

Plaintiffs allege that officer Musser's negligent, willful, reckless or intentional delay in furnishing assistance, after being notified of the assault in progress, proximately caused or aggravated their injuries. In addition to respondeat superior liability, York Township's alleged negligence involved failing to (1) remove officer Musser from active duty when he initially failed to render timely aid to imperiled crime victims; and (2) provide adequate police protection for plaintiffs. Concluding that the ...


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