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DUDOSH v. WARG

August 6, 1987

Edward Dudosh, Administrator of the Estate of Kathleen Dudosh
v.
Daniel Warg; Dean Schwartz; and the City of Allentown



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, S.J.

 On May 18, 1987, we granted in part and denied in part the defendants' motion for summary judgment, 665 F. Supp. 381. Both the plaintiff and the defendants have moved for reconsideration of that Order, the plaintiff asserting that we erred in granting the defendants partial summary judgment and the defendants contending that we erred in failing to grant their motion in its entirety. The plaintiff has also requested, if we deny its Motion For Reconsideration, that we certify for appeal pursuant to 28 U.S.C.A. § 1292(b) (West Supp. 1987) that portion of our Order granting the defendants partial summary judgment. In response, the defendants request, if we deny their Motion For Reconsideration, that we also certify for appeal, if we grant the plaintiff's Motion For Certification, that portion of our Order denying them summary judgment. Our Memorandum and Order of May 18 speak for themselves, and we see no need for a lengthy review of the basis for and effect of our decision. Stated succinctly as possible, we granted both the individual defendants and the municipal defendant summary judgment as to the plaintiff's Fourteenth Amendment due process claim on the ground, inter alia, that the defendants possessed no constitutional duty to provide the decedent with police protection, adequate or otherwise, and therefore, their failure to provide her with such protection could in no way have constituted a violation of her substantive due process rights under the Fourteenth Amendment. We denied the defendants summary judgment on the plaintiff's Fourteenth Amendment equal protection claim on the ground that we could not say that a reasonable jury could not conclude on the basis of the evidence of record that the individual defendants unlawfully discriminated against the decedent, either on the basis of her sex or the nature of the complaint she filed, in the manner in which they handled her request for assistance. *fn1"

 We also granted in part and denied in part the municipal defendant's motion for summary judgment as to the claims asserted against it in the context of the plaintiff's equal protection claim. *fn2" Here, the plaintiff asserted two theories of liability against the City: a "custom" theory and a "failure to train" theory. We denied the City summary judgment as to the "custom" theory on the ground that there was enough evidence of record upon which a jury could find that the City had, through its silence and/or acquiescence, adopted a policy or custom of discriminating against women and/or those who filed domestic complaints in the manner in which they handled requests for assistance from such individuals. We granted the City summary judgment as to the plaintiff's "failure to train" theory on the ground that the plaintiff had failed to adduce sufficient evidence upon which a jury could reasonably conclude that the City had inadequately trained its police officers such that it could be said that its failure to train constituted a reckless disregard for or deliberate indifference to the constitutional right of its citizens to equal protection of the law.

 I. The Plaintiff's Motion For Reconsideration.

 A. Factual Errors.

 The plaintiff asserts that we committed a variety of factual errors in our decision. As noted in our earlier opinion, however, we are not permitted in the context of resolving a summary judgment motion to engage in the "finding" of facts. We may not draw our own inferences from the record, but rather, must draw all reasonable inferences from the evidence of record in favor of the nonmoving party.

 Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted in favor of the moving party only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." (Emphasis added.) In applying this standard, we engage ourselves in a three step analysis. The first step is to examine the record and determine whether there are any genuine issues of fact. If so, all reasonable inferences must be drawn in favor of the nonmoving party. The second step is to determine whether the disputed issues of fact are material, i.e., do they have an effect upon our decision as to whether the moving party is entitled to judgment as a matter of law. If such disputed issues of fact are not material, they present no impediment to the entry of summary judgment. The third and final step in our analysis is to take the proper facts of record, and apply them to the relevant statutory or case law.

 Here, the plaintiff first states that we erred in "finding" that the Allentown Police Department did not know of Miller's assault upon the decedent which allegedly required her hospitalization and that the Department did not know that Miller had assaulted the decedent while she was hospitalized. The plaintiff also claims that we erred in our statement of the "undisputed" facts of this case as to certain aspects surrounding the decedent's "hospitalization". The plaintiff is to an extent correct.

 In our prior decision, we stated as follows:

 
On October 19, 1984, the deceased obtained a temporary Protection-From-Abuse (PFA) order from the Court of Common Pleas of Lehigh County of the Commonwealth of Pennsylvania pursuant to 35 Pa.C.S.A. § 10181-10190 (Purdon's Supp. 1986). The deceased, in her petition for the temporary PFA order, stated that she and Miller had resided together for approximately two and one-half years, though they were not married. She further alleged in the petition that on October 10, 1984, Miller threatened to kill her and 'anyone who got in his way'; that he had a drinking problem and had been hospitalized many times for alcohol abuse; that in October, 1984, Miller 'pushed' the deceased, 'hit her around', 'smashed her furniture and made several threats to kill' himself and her; that on another occasion in October, 1984, Miller 'beat up' the deceased two days in a row, requiring her hospitalization for 'two weeks', during which Miller assaulted her again; and that in August, 1984, Miller 'choked her so hard that he lifted her off the ground two feet while heavily drunk'. (Citation omitted.) The Allentown Hospital records contained in the record before us, however, reflect that the deceased was admitted to the hospital on July 18, 1984, and was apparently discharged the following day. The records list her 'admitting diagnosis' as 'depressive disorder'. (Citation omitted.) While the records do mention complaints by the decedent that Miller had assaulted her, no where do the hospital records refer to any physical injuries which required that she be hospitalized. More importantly, the plaintiff has presented no evidence that any of the incidents described in the petition were reported to the Allentown police.

 Dudosh v. City of Allentown, et al., 665 F. Supp. 381, 384 (E.D.Pa. 1987).

 At the time we issued our decision, we were not cognizant of the fact that the decedent's petition for the PFA Order, as well as the Order itself, had been served upon the Allentown Police Department. (See Plaintiff's Brief in Opposition to Defendant's Motion For Summary Judgment, Doc. # 16, Ex. "D", para. E) *fn3" Thus, we must deem the individual defendants, as well as the municipal defendant, to have been aware of the allegations contained in the decedent's petition for the PFA Order.

 As to our statements regarding the decedent's hospitalization, we also erred in our statement that the decedent was discharged from the hospital July 19, 1984, only one day after she had been admitted. According to the plaintiff, the hospital records clearly indicate that the decedent was admitted to the hospital on July 19, 1984, and discharged on July 27, 1984. This is also in error. The "admission form" pertaining to the decedent, as reproduced by plaintiff's counsel, indicates that the decedent was admitted to the hospital on July 18, 1984. (Plaintiff's Motion For Reconsideration, Doc. # 19, Ex. "B".) It is true that the plaintiff was not discharged from the hospital until July 27, 1984. (Id. at "Discharge Summary".) *fn4"

 We find no error, however, in our statement that "nowhere do the hospital records refer to any physical injuries which required that she be hospitalized." Dudosh v. City of Allentown, et al., 665 F. Supp. 381, 384. (Emphasis added.) According to plaintiff's counsel, "The records indicate that Decedent was admitted to the hospital after being referred there by Crisis Prevention due to the fact that Miller had beaten Decedent over a period of days immediately after his discharge from the state hospital." (Plaintiff's Brief In Support Of Motion For Reconsideration, Doc. # 19, p.4.) It does not follow from this, however, that the decedent was hospitalized because of physical injuries she received at the hands of Miller.

 The hospital "progress record" does indeed describe contusions, abrasions and rashes over various parts of the decedent's body at the time of her admission. The same hospital records, though, indicate that the decedent's "admitting diagnosis" was a "depressive disorder". As stated in our prior opinion, the only inference which may be drawn from the records is that the decedent was admitted to the hospital because of an emotional disturbance, albeit apparently caused by Miller's conduct, and not because of any physical condition. Plaintiff's counsel's continued assertions to the contrary are disingenuous and incredulous. *fn5"

 The plaintiff next asserts that we erred in our statement that neither of the individual defendants heard any of the conversation which occurred between the decedent and Arlene Bell. See Dudosh v. City of Allentown, et al., slip op. at 10. The content of the conversation between Bell and the decedent is summarized in our prior opinion and need not be repeated. See, id.6 As to the plaintiff's assertion that he produced sufficient evidence to contradict the individual defendants' testimony that they did not hear Bell's warnings to the plaintiff, he cites the following deposition testimony of Bell:

 
Q: Mrs. Bell, when you warned Kathleen that Tex was upstairs, I think your testimony was that the police were present ...

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