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WATERS v. MCGURIMAN

March 12, 1987

Robert D. B. Waters
v.
Joseph McGuriman and The Borough of Lansdale, By Its Supervisors



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This action is brought by Robert D.B. Waters against the Borough of Lansdale and Officer Joseph McGuriman of the Lansdale Police Department pursuant to 42 U.S.C. § 1983 in connection with the plaintiff's arrest on April 21, 1982 by Officer McGuriman and prosecution by the Borough for loitering pursuant to Borough of Lansdale Ordinance No. 942 subsection (F), § 89-3(F). The plaintiff has filed a motion for summary judgment against the Borough on the ground that Ordinance 942 subsection (F) is unconstitutionally overbroad and vague and that enforcement of the Ordinance against the plaintiff deprived him of his constitutional rights. The Borough opposes the motion. For the reasons that follow, the Court finds that there is no genuine issue of material fact relative to the Borough of Lansdale's liability, and that the plaintiff is entitled to a favorable adjudication as a matter of law. However, since there is a genuine factual issue as to the amount of damages recoverable, summary judgment will be granted in favor of the plaintiff on the issue of liability, and the issue of damages will remain for future determination.

 The material facts concerning which there are no genuine issues may be summarized as follows: On April 12, 1982, at approximately 4:30 a.m., the plaintiff was walking on a street in Lansdale. He was seen by Officer McGuriman, who approached the plaintiff, stopped him and asked him his name and destination. The plaintiff initially refused to talk to McGuriman. After two requests for identification, the plaintiff presented an identification card with his picture and address, and told Officer McGuriman that he was going to a 24-hour convenience store. McGuriman noted that the plaintiff was walking in the opposite direction from the convenience store. McGuriman then arrested the plaintiff for loitering at 4:20 a.m. and for being uncooperative. Several days after his arrest, the plaintiff appeared before the District Justice and was convicted of the summary offense of loitering and was fined $41.00. The plaintiff appealed his conviction to the Court of Common Pleas of Montgomery County. On May 31, 1984, the charges were dismissed by the Borough and the conviction was set aside. This action was filed on July 20, 1984.

 The Ordinance at issue provides in pertinent part:

 
§ 89-1. Disorderly conduct and disturbing the peace.
 
Disorderly conduct and/or acts disturbing the peace within the limits of the Borough of Lansdale are hereby prohibited, and no person shall engage in such conduct or commit such acts within the limits of the Borough of Lansdale.
 
§ 89-2. Definitions.
 
A. Disorderly conduct and/or acts disturbing the peace are hereby defined for the purposes of this chapter as any act, word or conduct causing or tending to cause a disturbance of the peace and good order of the borough or causing or tending to cause any danger, discomfort or annoyances to the inhabitants of the borough or users of the borough thoroughfares. Such act, words or conduct, shall include but not be limited to, loafing, fighting, drunkenness, vagrancy, begging, profanity or indecent language or acts; the making or causing to be made of any unnecessary noises or disturbances, clamor, din or other sounds disturbing, or tending to disturb, the peace and quiet of the community; the carrying on of any business, trade, transportation, recreation or amusement in a manner, at a time or in a place which causes any unnecessary noise or disturbance, discomfort, danger or annoyance; the reckless or careless driving or any other use of vehicles or animals by owners, occupants, users or operators of the same as shall endanger the safety of, or interfere with the comfort and convenience of, inhabitants of the borough or persons using the thoroughfares of the borough.
 
Without in any manner intending to limit or restrict the generality of the above definition of and prohibition against disorderly conduct and/or acts disturbing the peace, the following are hereby declared to constitute disorderly conduct and/or acts disturbing the peace:
 
* * *
 
F. Loafing, loitering or strolling in or upon any street, alley or other public way or public place, or at any public gathering or assembly, or in or around any store, shop, business or commercial establishment or on ...

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