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ESTATE OF COOPER v. LEAMER

February 10, 1989

ESTATE OF DAVID COOPER By and Through DENICE COOPER, Administratrix of the Estate, DENICE COOPER, individually, DENICE COOPER, as legal guardian of the minor, DAVID COOPER, DELMER LEE COOPER, and MARGARET COOPER, Plaintiffs
v.
MARK LEAMER, HARRY ERSEK, RALPH FRITZ, Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 Introduction

 Currently before the court in this civil rights action are the defendants' Fed. R. Civ. P. 56 summary judgment motions. Because they present many similar, if not identical issues, we shall discuss the motions jointly in this memorandum.

 Background

 This case arises from the November, 1986, shooting death of David Cooper, a twenty-three year old convicted felon and escapee from the Bedford County Jail. Armed with warrants for Cooper's arrest and suspecting that he might appear at his parents' remote mountain property in Huntingdon and Bedford Counties, the defendants placed the property under surveillance. In light of Cooper's and his family's prior contacts with law enforcement officials, the defendants believed that Cooper could be armed and dangerous. *fn1"

 On November 9, 1986, Huntingdon County Sheriff Leamer, Huntingdon County Deputy Sheriff Ersek, and Bedford County Deputy Sheriff Fritz were watching the Cooper property when David Cooper and his wife Denice approached in a car and stopped at a nearby shed. They spoke briefly, Denice Cooper drove away and David Cooper entered the building. The defendants attempted to follow him, but found the door to be locked from the inside. The two deputy sheriffs then positioned themselves on opposite sides of the shed, apparently to prevent Cooper's escape, and Sheriff Leamer went to call for assistance. Before Leamer returned, Cooper emerged from the shed. Fritz made his presence known, held up his badge and shouted, "Police, freeze." Cooper immediately fled from Fritz's sight and, as he rounded the corner of the shed, confronted Ersek who, with a single shotgun blast at a short range, fatally wounded him.

 Questions exist whether Cooper was armed when he exited the shed. Fritz and Ersek testified at their depositions that he wielded a handgun and displayed it in a threatening manner. Fritz contends that Cooper emerged in a two-handed shooting position and Ersek maintains that Cooper turned toward him with the gun. A pathologist who conducted Cooper's autopsy testified at his deposition that he found a shoulder holster and eleven shells on Cooper's body. The plaintiffs allege that Cooper was unarmed at the time of his death and assert that the police "planted" a gun after the shooting. Denice Cooper testified that she witnessed the shooting and did not see a gun in the decedent's possession or near his body. *fn2"

 Discussion

 1. Summary Judgment Standard

 The standard for evaluating a motion for summary judgment, set forth in Fed R. Civ. P. 56, was explained in Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202, 212 (1986):

 
At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial . . . . There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for the party. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict . . . ."

 Id. at 252, 91 L. Ed. 2d at 214. In answering that question, all facts and inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Jackson v. University of Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 732, 98 L. Ed. 2d 680 (1988). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 91 L. Ed. 2d at 214. Finally, "although courts are to resolve any doubts as to the existence of genuine issues of genuine fact against the parties moving for summary judgment, Rule 56(e) does not allow a party resisting the motion to rely merely on bare assertions, conclusory allegations or suspicions." Fireman's Insurance Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (footnotes omitted).

 2. Service of Process

 Defendants Ersek and Leamer claim this action should be dismissed because the plaintiffs have not complied with the mandatory service of process provisions of Fed. R. Civ. P. 4(d). The plaintiffs delivered the complaint to the Huntingdon Police Department, but Ersek and Leamer are members of the Huntingdon County Sheriff's Department, a separate entity. The police department has no authority or duty to accept service for the sheriff's department.

 While we find no error in the defendants' argument, we are persuaded that a more liberal construction of Fed. R. Civ. P. 4(d) is appropriate in this case. Adams v. School Board of Wyoming Valley West School District, 53 F.R.D. 267 (M.D. Pa. 1971). Rule 4(d) is to be interpreted broadly where the defendants have actual notice of the suit. See Nowell v. Nowell, 384 F.2d 951 (5th Cir. 1967), cert. denied, 390 U.S. 956, 88 S. Ct. 1053, 19 L. Ed. 2d 1150 (1968); In Re Paolino, 49 Bankr. 834 (Bankr. E.D. Pa. 1985). Since we see no prejudice to the defendants, the plaintiffs' action will not be dismissed for failure to effect proper service.

 3. Plaintiffs' State Wrongful Death/Survival Claims: Counts V and VI

 Though the complaint primarily alleges civil rights violations, the plaintiffs have raised claims based on Pennsylvania's wrongful death and survival statutes, 42 Pa.C.S.A. §§ 8301 and 8302. The defendants first challenge the wrongful death claims on the ground that the named plaintiffs lack standing to assert them and that only Cooper's administratrix may do so. The defendants are partly correct.

 In an action brought to recover damages for wrongful death, we must distinguish between those persons entitled to maintain such an action and those entitled to recover. Upon proper proof, Cooper's wife, son and parents are entitled to recover damages for his alleged wrongful death. 42 Pa.C.S.A. § 8301(b). However, it does not follow that they all may assert claims in their own names. The determination of who may maintain the action is ...


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