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DUDOSH v. CITY OF ALLENTOWN

December 18, 1985

EDWARD DUDOSH, Administrator of the Estate of KATHLEEN DUDOSH
v.
CITY OF ALLENTOWN, DEAN SCHWARTZ and DANIEL WARG



The opinion of the court was delivered by: TROUTMAN

TROUTMAN, S.J.

 The above captioned matter comes before this Court for consideration of the defendants' motion to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We shall first address the issues raised by the defendants' motion to dismiss the complaint on the basis of F.R.C.P. 12(b)(6).

 When considering a motion to dismiss, we are guided by the following well-known maxims: that all well-pleaded allegations will be accepted as true, that the complaint should be construed liberally and in favor of the plaintiff, that a complaint should not be dismissed unless it appears beyond doubt that no set of facts may be proven which would entitle the plaintiff to the relief requested, and finally, that the issue is not whether the plaintiff will recover, but rather whether he is entitled to submit evidence to support his claims. McClain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S. Ct. 502, 62 L. Ed. 2d 441 (1980); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); and Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). However, in this Circuit, a plaintiff pursuing a cause of action under Title 42 of the United States Code §§ 1983 and/or 1985 must plead the facts giving rise to the claimed deprivation of civil liberties with specificity and avoid vague and conclusory allegations in the complaint. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976) and Cardio-Medical Associates v. Crozer-Chester Medical Center, 536 F. Supp. 1065 (E.D. Pa. 1982).

 Before addressing the issues raised by the defendants' motion to dismiss, we believe the overall facts of this case, as alleged in the plaintiff's complaint, merit recital. *fn1" According to the complaint, Kathleen Dudosh, the deceased, obtained a temporary protection-from-abuse order on October 19, 1984, from the Court of Common Pleas of Lehigh County of the Commonwealth of Pennsylvania against one Richard P. Miller pursuant to 35 Pa. C.S. § 10181 et seq. This temporary order was made permanent by the Lehigh County Court on January 21, 1985. Miller is claimed to have beaten the deceased on at least one occasion prior to her death to such an extent that she required hospitalization. The plaintiff alleges further that the deceased was required to contact the Allentown Police Department on numerous occasions to seek assistance due to Miller's continued threats, harassment and assaults. Ms. Dudosh allegedly informed the Allentown police many times that Miller had threatened to kill her and himself. The plaintiff also charges that when the police responded to the deceased's requests for assistance and found Miller at her residence in violation of the PFA Order, they refused to "carry out the court order and to protect plaintiff's decedent and failed to arrest Miller". (Plaintiff's Complaint, para. 17).

 The climax of this unfortunate series of events occurred on March 28, 1985. On that date, the deceased again contacted the Allentown Police Department to request assistance when a neighbor informed her that Miller had broken into her residence and was still there. The individual defendants responded to Ms. Dudosh's call and "took plaintiff's decedent to her second-floor apartment and instructed her to open the door to her residence and to enter before them while they stood back from the entranceway". (Plaintiff's Complaint, para. 22). Miller then "shot and killed Kathleen Dudosh . . . and then shot and killed himself". (Plaintiff's Complaint, para. 23). All of this is alleged to have occurred after the deceased had informed the individual defendants personally that Miller was a danger due to his "continuous harassment, assaults and threats of murder and suicide". (Plaintiff's Complaint, para. 21).

 The plaintiff in his complaint sets forth seven (7) counts against Dean Schwartz and Daniel Warg (the "individual defendants") and the City of Allentown (the "municipal defendant"). In Count One, he alleges the individual defendants deprived the deceased of her Fourteenth Amendment rights to due process and equal protection due to their failure to provide her with adequate protection, and seeks to hold them liable pursuant to 42 U.S.C. § 1983. He avers in Count Two pursuant to 42 U.S.C. § 1985(3) that the individual defendants conspired to deprive the deceased of her right to equal protection "because of her sex by agreeing to deny her reasonable protection under the circumstances". (Plaintiff's Complaint, para. 32). The plaintiff, in Count Three, seeks to hold the municipal defendant liable pursuant to 42 U.S. C. § 1983, averring that the individual defendants were acting "pursuant to a policy of sex discrimination against females . . . approved, encouraged and acquiesced in by" the municipal defendant. (Plaintiff's Complaint, para. 38). He further alleges that the deceased was denied her right to due process because of this policy of discriminating against women in that the deceased was not provided with adequate protection. The plaintiff in Count Four avers that the individual defendants acted pursuant "to a policy of invidious discrimination in the handling of domestic complaints . . . approved, encouraged and acquiesced in by" the municipal defendant and contends that, therefore, the municipal defendant should be liable under § 1983. He alleges in the alternative in Count Five that the municipal defendant should be held liable pursuant to § 1983 because its "non-existent or grossly inadequate rules, regulations or procedures governing police officers relative to handling of domestic matters in general and violations of protection-from-abuse orders in particular" and its "training or failure to train in this regard" resulted in the deprivation of the deceased's Fourteenth Amendment rights to due process and equal protection. (Plaintiff's Complaint, paras. 48 and 50). The plaintiff in Counts Six and Seven alleges pendent state law wrongful death and survival actions against both the individual and municipal defendants.

 The defendants move this Court to dismiss the plaintiff's complaint pursuant to F.R.C.P. 12(b)(6) for the following reasons:

 
(a) Plaintiff uses broad conclusory statements to allege collusion and conspiracy among the Defendants without specific reference to individual Defendants or any actions taken by them upon which the allegations of conspiracy may be based.
 
(b) Defendants Schwartz, Warg and the City of Allentown owed no legal duty to protect the Plaintiff's Decedent the breach of which would give rise to a cause of action.
 
(c) Plaintiff has failed to state a prime facie case of denial of the right to equal protection of the laws, and
 
(d) The claims alleged by Plaintiff against Defendants are barred or limited by the Act of October 5, 1980, P.L. 693, No. 142, 42 Pa C S. § 8541 et seq., providing governmental immunity.

 A. The lack of factual specificity.

 As stated above, this and other Circuits have veered somewhat from the general principles of federal notice pleading so as to require a plaintiff in a civil rights action to allege the specific facts he claims constituted a deprivation of his civil liberties. See Rotolo v. Borough of Charleroi, supra, and Cardio-Medical Associates v. Crozer-Chester Medical Center, supra. The individual defendants argue the plaintiff has not met this burden with regard to his § 1985(3) claim, i.e., Count Two of the complaint. We disagree.

 To state a cause of action under § 1985(3), the plaintiff must plead that (1) there was a conspiracy between the individual defendants; (2) to deprive the deceased of the equal protection of the laws; (3) that the individual defendants committed an act in furtherance of the conspiracy; and (4) the deceased was injured in her person or property and deprived of her rights and privileges as a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971) and Sellers v. Local 1598, District Council 88, AFSCME, 600 F. Supp. 1205 (E.D. Pa. 1984). The plaintiff has alleged that the individual defendants agreed between themselves not to protect the deceased because of her sex and that their failure to protect Ms. Dudosh resulted in her death. While the plaintiff may ultimately be unable to prove the facts he alleges, we believe he has plead enough specific facts so as to prevent us from dismissing his § 1985(3) claim pursuant to a Rule 12(b)(6) motion. The purpose of requiring plaintiffs in civil rights actions to plead ...


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