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TIMKO v. CITY OF HAZLETON

August 12, 1986

George J. Timko, Personal Representative of the Estate of Daniel T. Timko, Plaintiff
v.
City of Hazleton and Michael Conway, Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, Judge

 Plaintiff filed this complaint on August 5, 1985, invoking this court's jurisdiction under 28 U.S.C. §§ 1331 and 1343. Relief is sought pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. Defendants, City of Hazledon ("City") and Michael Conway ("Conway"), filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, a brief in support thereof and supporting documentation on April 29, 1986. Plaintiff opposed the motion on May 22, 1986 and June 13, 1986. Reply time having lapsed, the matter is ripe for disposition. For the reasons set forth below, defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment will be granted. *fn1"

 STANDARD OF REVIEW

 Summary judgment is appropriate only when there are no material issues of fact to be resolved and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. A court may not resolve conflicting factual contentions on a motion for summary judgment and the facts must be viewed in a light most favorable to the non-moving party. See e.g., Peterson v. Lehigh Valley District Council, 676 F.2d 81 (3d Cir. 1982). While questions concerning the existence of genuine issues of fact must be resolved against the moving party, conflicts of fact do not preclude summary judgment unless they are material to the case. See e.g., Tarasi v. Pittsburgh National Bank, 555 F.2d 1152 (3d Cir.), cert. denied, 434 U.S. 965, 54 L. Ed. 2d 451, 98 S. Ct. 504 (1977). As the United States Supreme Court recently held,

 
in our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 54 U.S.L.W. 4775, 4777, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, there is no requirement that the moving party support its motion with material negating the opponent's claim. Id. Mindful that the parties in this case have been given ample opportunity to support their respective positions *fn2" and in light of this standard, the undisputed facts relevant to the instant motion are as follows.

 FACTUAL BACKGROUND

 Plaintiff brings this action as the personal representative of the estate of Daniel G. Timko ("Timko"). On August 5, 1983, at approximately 12:30 a.m., Conway, while on duty as a Hazleton City police officer, drove into the parking lot of the Hazleton Shopping Center on West Broad Street, Hazleton, Pennsylvania. See Complaint, Document 1 of the Record at para. 6 ("Complaint") and Answer, Document 6 of the Record at para. 6 ("Answer"). Upon entering the parking lot, Conway observed a yellow 1972 Cadillac stopped approximately sixty-five (65) feet in the rear of a Super Saver grocery store with its lights on and engine running. See Defendants' Statement of Facts Not in Dispute, Document 15 of the Record; Memorandum of Law in Support of Defendants' Motion to Dismiss at 2 (Defendants' Statement); Complaint at para. 7; Transcript of March 20, 1984 at 37. No stores in the shopping center were open at the time Conway observed this vehicle stopped behind the store. Transcript at 37. The driver and sole occupant of the vehicle was Steven A. Belusko (Belusko). As Conway drove behind the Cadillac, Belusko drove slowly away, whereby Conway signaled for Belusko to pull over. Belusko did not stop, and as the Cadillac accelerated, Conway turned on the overhead light of the police car and blew the horn. The Cadillac proceeded through the parking lot and traveled east on Broad Street at a high rate of speed. Belusko traveled up to sixty (60) miles per hour. Complaint and Answer at para. 13. Conway pursued Belusko, at some point turning on the police car's siren. Belusko ran a red light at the intersection of Broad and Laurel Streets and struck a 1979 Pontiac driven by Timko. Timko was thrown from his vehicle and subsequently pronounced dead at Hazleton State Hospital at approximately 12:50 A.M. At the time of the collision, Conway, who was following Belusko, was approximately two hundred fifty (250) feet away from the intersection.

 Plaintiff avers that the City breached the duty of care owed Timko "by means of the negligent and reckless acts and omissions of its agencies, representatives and/or employees . .." Complaint at para. 19. Specifically, plaintiff maintains that the City is liable for:

 
(a) failing to adopt and enforce appropriate and reasonable policies, customs, procedures and practices relative to the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles; %(b) failing to adequately train and supervise Conway in the proper procedures for the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles;
 
(c) implicitly or explicitly authorizing, approving, and/or knowingly acquiescing in the use of improper procedures for the investigation and apprehension of suspected offenders; the initiation and conduct of high speed police pursuits; and the operation of emergency vehicles.

 Id.

 Liability of Conway is based on Conway's alleged:

 
(a) reckless and negligent operation of his automobile;
 
(b) reckless and negligent initiation of a high speed pursuit under circumstances posing a grave risk of injury to persons and property;
 
(c) reckless and negligent attempt to apprehend and/or arrest Belusko without probable cause and without a reasonable belief that a crime had been committed;
 
(d) reckless and negligent failure to discontinue a high speed pursuit despite the presence of circumstances posing a grave risk of injury to persons and property;
 
(e) reckless and negligent failure to take less dangerous, but equally effective means of investigating the Belusko vehicle;
 
(f) violations of the motor vehicle laws of the Commonwealth of Pennsylvania;
 
(g) negligent and reckless disregard of proper procedures and standards pertaining to the initiation and ...

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