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WASHCO v. DARBY BOROUGH POLICE DEPT.

April 14, 1988

John Christopher Washco, and Maryann Modugno Washco
v.
Darby Borough Police Department, et al.



The opinion of the court was delivered by: POLLAK

 Pollak, D.J.

 Background

 Plaintiff John Washco claims that the defendants, pursuant to an unwritten police department policy, violated his rights under the fourth, fifth, sixth, and eighth amendments to the Constitution, and his fifth and fourteenth amendment rights to due process. He also brings several pendent tort claims against various Darby officials. Mr. Washco alleges that the defendants, primarily through defendant police officers Galli and Chapelle, carried out a systematic campaign of harassment against him. His complaint states that on three separate occasions -- August 27, 1986, March 6, 1987, and May 15, 1987 -- the defendants subjected him to arrest and prosecutions for crimes that he did not commit. On two of these occasions, plaintiff claims that he was imprisoned and denied access to family and counsel. During the most acute of the three incidents alleged in plaintiff's complaint, plaintiff claims that on May 15, 1987, he was detained for eleven hours, denied contact with counsel and his mother, and forced to endure a strip search and other brutal treatment for the defendant officers' amusement.

 Plaintiff Maryann Washco, Mr. Washco's mother, brings a single state law claim for intentional infliction of emotional distress against Officer Galli for his alleged refusal on the night of May 15, 1987, to disclose her son's whereabouts. She avers that upon hearing of her son's arrest, she went to the Darby police station to inquire about Mr. Washco's status. At first, Officer Galli allegedly told Mrs. Washco that her son was suspected of being involved in drug dealing. After Mrs. Washco heard her son call out to her at the police station, Officer Galli supposedly changed his story, claiming that Mr. Washco had no right to contact his family because he was not being held on criminal charges. The complaint then states that the officer terminated the conversation, and that Mrs. Washco did not see her son until the next morning.

 The defendants have moved for dismissal of all counts in the complaint. Each of their objections is discussed below.

 1) John Washco's § 1983 Punitive Damages Claim

 In the plaintiffs' original complaint, Mr. Washco claimed punitive damages against all of the defendants, including the Darby police department. Defendants argue and plaintiffs acknowledge that the Supreme Court's decision in City of Newport v. Fact Concerts, 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981), bars punitive damage claims against municipalities and their agencies. Plaintiffs' amended complaint still includes a punitive damages claim, but only against the individually named defendants. This claim may be pursued -- Fact Concerts does not bar claims for punitive damages against government officials for knowing and malicious violations of a plaintiff's constitutional rights. See Fact Concerts, 453 U.S. at 267; Buskirk v. Seiple, 560 F. Supp. 247, 251 (E.D. Pa. 1983). Therefore, plaintiffs may proceed on count I as amended.

 2) John Washco's Tort Claims

 In counts II, III, and IV of the amended complaint, John Washco sets forth various pendent tort claims, including intentional infliction of emotional distress, false imprisonment, and invasion of privacy. The defendants argue that these claims are barred under Pennsylvania's Political Subdivision Torts Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541-8564 (Purdon 1982). Under the act, a municipality and its employees are immune from liability for negligent conduct unless the conduct complained of falls into one of eight enumerated exceptions. See 42 Pa. Cons. Stat. Ann. § 8542(b) (Purdon 1982). Defendants contend and plaintiffs acknowledge that none of the conduct alleged in counts II, III, or IV falls into any of the act's exceptions.

 Under the cited cases the defendants would not be immune from liability if Mr. Washco proves his allegations of intentionally tortious conduct at trial. Mr. Washco will be ...


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