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BERNSTEIN v. TOWNSHIP OF LOWER MORELAND

February 21, 1985

BEATRICE BERNSTEIN and MORTON BERNSTEIN, Co-Administrators of the Estate of David C. Bernstein
v.
THE TOWNSHIP OF LOWER MORELAND; DONALD R. HESSING; JAMES ORLOFF; and PAUL T. DICKINSON, individually and as Officers of The Township of Lower Moreland; ROBERT H. HAMILTON, individually and as Chief of Police of The Township of Lower Moreland; WILLIAM McALISTER and CARL A. MOLT, individually and as Detectives of The Township of Lower Moreland



The opinion of the court was delivered by: BECHTLE

 Presently before the court is defendants' motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, defendants' motion will be granted.

 I. FACTS

 On April 4, 1982, the Sound Odyssey Warehouse in Huntington Valley, Pennsylvania, was burglarized. At about midnight of that same day, defendants Donald R. Hessing, James Orloff, and Paul Dickinson, who were police officers of the Township of Lower Moreland ("Lower Moreland"), engaged in a high speed automobile chase. It is alleged that the persons in the fleeing automobile were David C. Bernstein, Scott Shaw, and Joseph Kindler, Jr. The court presumes that the police sought these three persons as suspects of the aforementioned burglary and in connection with the investigation of the burglary.

 The suspects escaped during the chase, but Bernstein and Shaw were arrested in the early morning of the next day in Philadelphia by the Philadelphia police. Bernstein and Shaw were then returned to the Lower Moreland police. Hessing, Orloff, and Dickinson were the officers who took custody of Bernstein and Shaw for Lower Moreland and who escorted the suspects to the Lower Moreland Police Headquarters.

 Later that morning, defendants William McAlister and Carl A. Molt, also officers of the Lower Moreland Police Department, questioned Bernstein. Bernstein, who did not have an attorney present, supplied information which led to the arrest of Kindler, and Bernstein agreed to testify against Joseph Kindler, Jr.

 Kindler was later arrested, and the three suspects were charged with burglary.

 Subsequently, the Assistant District Attorney of Montgomery County, the Lower Moreland Police Department, and Bernstein entered into an agreement whereby Bernstein would testify against Kindler in exchange for a grant of immunity to Bernstein and a promise by the Lower Moreland Police to provide Bernstein protection.

 After this agreement was formed, Bernstein still expressed his fear of Kindler and Shaw. Bernstein was repeatedly reassured by the Lower Moreland police that Shaw was in the custody of St. Gabriel's Center for Juveniles and that Kindler was under constant surveillance. The complaint alleges that Kindler was not under surveillance by the Lower Moreland police and that Shaw had not returned after an outing from St. Gabriel's on July 4, 1982, nor had he returned up to the date of plaintiff's decedent's death on July 25, 1982. Bernstein was not informed of Shaw's failure to return to the juvenile facility nor of the lack of surveillance of Kindler.

 On May 21, 1982, Bernstein was granted immunity by the Court of Common Pleas of Montgomery County. This state court order was pursuant to an application for the grant of immunity filed by an Assistant District Attorney of Montgomery County.

 On or about July 25, 1982, Bernstein was confronted by Shaw and Kindler at his home. Bernstein, in the vicinity of his home, was beaten to death by Shaw and Kindler. Bernstein's corpse was then bound, weighted and thrown into a river.

 This § 1983 action was brought by Bernstein's parents, co-administrators of his estate, under Pennsylvania's survival statute, 20 Pa.Cons.Stat.Ann. § 3371 (Purdon 1984). In Count 1, the plaintiffs assert that the defendants intentionally breached their duty to provide Bernstein with adequate police protection after they had undertaken to provide such protection to Bernstein. In Count 2, the plaintiffs assert that the defendants breached their duty because the defendants were grossly negligent. Count 3 of the complaint is a pendent claim and asserts a state law claim for the wrongful death of Bernstein.

 II. DISCUSSION

 When analyzing a motion to dismiss for failure to state a claim upon which relief may be granted, the court will interpret the facts, draw inferences from those facts, and resolve every doubt in favor of the plaintiff in support of his claim for relief. Scheuer ...


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