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STRAUSS v. SPRINGER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 21, 1992

JAMES E. STRAUSS, Plaintiff
v.
RICHARD SPRINGER, AND ROBERT CLIFT, AND THE CITY OF PHILADELPHIA, Defendants

The opinion of the court was delivered by: TULLIO GENE LEOMPORRA

MEMORANDUM

 I. INTRODUCTION

 Plaintiff, James E. Strauss, filed a civil rights action against the City of Philadelphia and Philadelphia Police Officers Richard Springer and Robert Clift on January 22, 1991. The complaint asserts claims against the defendants under 42 U.S.C. §§ 1983, 1985 and 1988, involving the alleged unconstitutional use of excessive deadly and non-deadly force against the plaintiff on August 28, 1989. The complaint also alleges a conspiracy among the defendants to deprive plaintiff of his constitutional rights. Plaintiff further asserts pendent state law claims against the defendants for negligence, assault and battery, abuse of process and false imprisonment. *fn1"

 On April 9, 1992, defendants filed a Motion for Partial Summary Judgment presently before me to dismiss the negligence cause of actions against the officers and the City of Philadelphia. Plaintiff responded to this motion on April 15, 1992. For the reasons explained below, this motion will be denied. *fn2"

  A. STANDARD OF REVIEW

 Rule 56(c) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."

 The court does not resolve questions of disputed fact, but rather simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977). The facts must be viewed in the light most favorable to the non-moving party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 B. BACKGROUND OF THE MOTION

 In bringing his cause of action for negligence against the City of Philadelphia and the two (2) police officers, the plaintiff relies on Chapter 21-701 of the Philadelphia Code. This ordinance enacted by the Philadelphia City Counsel in 1971 states:

 (a) "The City shall not plead governmental immunity as a defense in any civil action commenced by any person sustaining bodily injury or death caused by negligent or unlawful conduct of any police officer while the latter is acting within the scope of his office or employment."

 In support of their motion for summary judgment the defendants argue that in 1978 the Pennsylvania legislature enacted statutory governmental immunity (the Political Subdivision Tort Claim Act), *fn3" which effectively repealed and superseded any other prior statute or ordinance involving governmental immunity, and therefore, they are immune under this statute from liability. See 42 Pa.C.S.A. § 8541, et seq. Defendants further argue in the alternative that if the court finds that the 1978 immunity statute did not supersede Chapter 21-701 of the Philadelphia Code, then they are still immune since this section was recently repealed by the Philadelphia City Council and made retroactive as of December 4, 1990; and since plaintiff's complaint was filed in January 1991, the negligence cause of action cannot be maintained because the City can now plead immunity.

 Plaintiff argues that at the time the plaintiff's cause of action occurred, the City had effectively waived the governmental immunity defense under chapter 21-701 and that it was not superseded by the 1978 governmental immunity statute. In addition, plaintiff asserts that an ordinance cannot retroactively bar plaintiff's claims which had accrued and predated the enactment of the ordinance.

 C. HISTORY OF GOVERNMENTAL IMMUNITY IN PENNSYLVANIA

 Philadelphia's Home charter Rule, 53 Pa.C.S.A. §§ 16251-17096, authorizes the city to pass legislation such as § 21-701 of the Philadelphia Code dealing with waiver of immunity. In June 1962, the City of Philadelphia enacted a municipal ordinance which was codified as Chapter 21-700 of the Philadelphia Code, and entitled "Waiver of Governmental Immunity". This ordinance waived immunity in all actions arising out of the negligent or unlawful conduct of any city employee. This chapter was amended in 1971 limiting the waiver at § 21-701 to cover only actions by police officers.

 In Mayle v. Pa. Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), application for reargument denied, 479 Pa. 411, 390 A.2d 181 (1978), the Pennsylvania Supreme court abolished the doctrine of sovereign immunity except where a legislative act expressly or implicitly authorizes a suit. *fn4" The court held that the legislature may by law direct and grant power of consent to sue. Id. at 720.

 Shortly thereafter, the Pennsylvania legislature passed the Political Subdivision Tort Claims Act (hereinafter the PSTCA), 42 Pa.C.S.A. §§ 8541-8564, which proclaimed that all municipalities and municipality employees may not be held liable for any damages sustained by a plaintiff unless the conduct falls within one of the eight exceptions *fn5" listed in § 8542 of the Act. *fn6"

 In their Motion for Partial Summary Judgment, the defendants claim that the actions of the officers and the City do not fall into one of the eight exceptions listed in PSTCA, and that although the PSTCA did not directly challenge the validity of the Philadelphia ordinance at the time it was enacted, the validity of Chapter 21-701 of the Philadelphia Code was completely lost when the PSTCA was passed.

 II. DISCUSSION

 A. THE VALIDITY OF CHAPTER 21-701 OF THE PHILADELPHIA CODE

 The issue has been addressed by both the Pennsylvania and the federal courts which approved the validity of Chapter 21-701 of the Philadelphia Code. In City of Philadelphia v. Middleton, 89 Pa. Commw. 362, 492 A.2d 763 (Pa. Cmwlth. 1985), the City claimed immunity since the actions alleged did not fall within one of the eight exceptions under the Tort Claims Act. The appellee (Middleton) conceded that the actions didn't come under one of the exceptions, but argued that the City waived its immunity by virtue of § 21-701 of the Philadelphia Code. The City argued that the court should find that this code section was repealed by implication because a municipal ordinance which is contradictory or inconsistent with a subsequent state statute is impliedly repealed by the enactment of that statute. The Pennsylvania Commonwealth Court noted that this case was one of first impression in the Pennsylvania state appellate courts, but that the United States District Court for the Eastern District of Pennsylvania had addressed this issue in Borenstein v. City of Philadelphia, 595 F. Supp. 853 (E.D. Pa. 1984).

 Borenstein held that the PSTCA itself does not preclude the waiver of immunity found in § 21-701 of the Philadelphia Code. "The Act (PSTCA) specifically states that local communities may enact rules and regulations as long as they are 'not inconsistent' with the provisions of the PSTCA. 42 Pa.C.S.A. § 8563(a). Philadelphia's waiver of immunity is in no way inconsistent with the PSTCA. That Act was intended to reinstate the governmental immunity which had been abolished in Ayala v. Phila. Bd. of Public Education, supra." The court added that the eight exceptions in the PSTCA are "not necessarily exclusive; and it would be inconsistent with the purpose of the PSTCA for a particular community to conclude that the fiscal burden of an enlarged waiver of immunity would not be so great as to outweigh the public interest in compensation of victims of negligence in certain classes of cases not included in the Act's eight exceptions." Id. at 858. Borenstein concluded that "there is no reason to believe that the waiver enacted in 1971 is not applicable today." Id. at 859.

 Middleton followed the lead of Borenstein and held that the City of Philadelphia acted well within its powers derived from its Home Rule Charter in deciding that it would be in the best interests of its citizens to waive governmental immunity in cases where bodily injury or death has resulted from the negligent or unlawful conduct of its police officers. Id. at 765.

 The Middleton court rejected the argument that the City ordinance was invalid because the entire area of tort immunity had been preempted by the PSTCA. The court found this argument unpersuasive in view of § 8563(a) of the PSTCA which specifically provides that "a local agency may promulgate rules and regulations not inconsistent with this subchapter in order to implement the intent of this subchapter." Id. at 765. *fn7"

 Recently, the Third Circuit in Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), addressed this question of whether § 21-701 waiving immunity was repealed by the PSTCA. The court citing Borenstein, supra at 858, stated that the state statutory limitations on municipal legislative powers "have been consistently interpreted by the Pennsylvania courts to place very few restrictions on the legislative authority of 'first class cities' such as Philadelphia." The court concluded that the PSTCA does not serve to nullify the City's ordinance waiving liability arising from the negligence of its police officers. Id. at 1088. *fn8"

 Defendants cite the case of McHugh v. Litvin, Blumberg, Matusow & Young, 525 Pa. 1, 9, 574 A.2d 1040, 1044 (1990), in support of its Motion for Partial Summary Judgment. Defendants argue that McHugh stands for the premise that the Philadelphia 1971 ordinance waiving liability merely prohibited the City from pleading governmental immunity as a defense. The ordinance did not and could not create a cause of action. "When courts overrule prior impediments to bringing suits they are not creating new causes of action, but are merely opening the courthouse door which had been formerly closed to such actions." Id. at 1040.

 Defendants also cite Thomas v. City of Philadelphia, 133 Pa. Commw. 121, 127-128, 574 A.2d 1205, 1208, allocatur denied, Pa. , 593 A.2d 429 (1990), and argues that this case determined that lifting governmental immunity does not create a cause of action that does not already exist.

 These arguments and the cases the defendants cite in support thereof, however, are unpersuasive in light of the several state and federal decisions discussed above which all directly address the issue of § 21-701 of the Philadelphia Code and its effect upon the 1978 PSTCA. All of these cases held that § 21-701 was not superseded by the Tort Claims Act and that the City, at the time of these decisions, could not plead immunity as a defense in a case involving negligent or unlawful acts of its police officers. See Simmons v. City of Philadelphia, supra; Borenstein v. City of Philadelphia, supra; City of Philadelphia v. Middleton, supra; Gray v. City of Philadelphia, supra.

 In addition, not one of these cases discusses or makes an issue of the defendants' argument that § 21-701 did or did not create a cause of action. In each one of these cases, the plaintiff brought at least one negligence claim against the City asserting that § 21-701 was applicable, and in each case the court upheld the validity of the city ordinance, prevented the City from pleading immunity and allowed the negligence claim to proceed against the City. Whether or not the ordinance "created a cause of action" was simply not an issue in any of these decisions, and thus should not be an issue in this decision.

 In addition, the law cited by the defendants in support of their arguments does not involve the issue of governmental immunity or Chapter 21-701 of the Philadelphia Code. McHugh v. Litvin, Blumberg, et al., supra, dealt with the continuing right of a husband to maintain a cause of action for loss of consortium and extending that right to the wife through the passage of the Equal Rights Amendment to the Commonwealth's Constitution applied retroactively to the wife's claim which was pending on the date of the decision. McHugh was a legal malpractice action involving the issue of the retroactive effect of a judicial holding. The court held that retroactive application is a matter of judicial discretion which is usually exercised on a case-by-case basis. Id. at 1043. Section 21-701 of the Philadelphia Code was not an issue in this case nor its effect upon governmental immunity.

 The defendants also cited Thomas v. City of Philadelphia, supra, for the proposition that a cause of action is not created by a waiver. However, my reading of that case does not come to that conclusion. In that case, the plaintiff filed a complaint against the City of Philadelphia claiming it negligently failed, through its police officers, to intervene in her imprisonment by the infamous Gary Heidnick. The court granted a demurrer, but not on the basis of § 21-701 or governmental immunity, but rather that the plaintiff in this case was not under police control when she suffered the atrocities by Heidnick, and thus the police had no duty to prevent the crimes committed against her. The court distinguished this case from Middleton, supra, where the plaintiff was in police custody when she suffered her injuries. Therefore, the court concluded that no duty existed at common law, and § 21-701 was not an issue in the granting of the demurrer.

 As noted above, under Fed. R. Civ. P. 56(c), the moving party for a motion for summary judgment has the burden of showing that there is no genuine issue as to any material facts, with all doubts being resolved against the moving party. See Drexel v. Union Prescription Drug Centers, Inc., 582 F.2d 781, 784 (3d Cir. 1978); Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir.), cert. denied, 396 U.S. 941, 90 S. Ct. 378, 24 L. Ed. 2d 244 (1969).

 In this case, with respect to the defendants' first argument in support of its motion for partial summary judgment that the 1978 PSTCA superseded § 21-701 of the Philadelphia Code and thus gave the City of Philadelphia immunity for the negligence action claimed in this case, the defendants have failed to meet their burden under Fed. R. Civ. P. 56(c). The case law clearly supports the plaintiff's position that the PSTCA did not supersede § 21-701 of the Philadelphia code and accordingly, the defendants' motion must be denied with regards to this argument. *fn9"

 B. THE RETROACTIVITY OF ORDINANCE 1057

 The defendants' second and last argument in support of their motion is that § 21-700 of the Philadelphia Code was repealed by the City Council of Philadelphia on December 4, 1990, and made retroactive, and since plaintiff's complaint was filed on January 22, 1991, the plaintiff no longer has a cause of action for negligence against the City because the City can now plead immunity.

 On December 4, 1990, the Philadelphia City Council passed Bill No. 1057, an ordinance repealing § 21-700 of the Philadelphia Code. City Council further ordained that "this ordinance shall take effect immediately and its repeal of Chapter 21-700 applies to all pending civil actions and to all civil actions commenced on or after the effective date of this ordinance."

 Plaintiff argues that his cause of action against the City of Philadelphia and the police officers accrued and was vested on the day he was shot by the defendant police officers on August 28, 1989, and not when his complaint was filed on January 22, 1991. He further states that the laws in effect at that point in time are the laws that govern what legal determinations will be made on that cause of action.

 It is asserted that the Pennsylvania Supreme Court decision, Gibson v. Commonwealth of Pennsylvania, et al., 490 Pa. 156, 415 A.2d 80 (1980), is controlling. Plaintiff contends that the retroactive implementation of Ordinance 1057 to an already accrued cause of action is unconstitutional under Article I, Section II of the Pennsylvania Constitution and the Fourteenth Amendment of the United States Constitution. For the reasons which follow, I agree that Gibson is the current controlling law in Pennsylvania and that Ordinance 1057 cannot be applied retroactively to the plaintiff's case.

 Gibson addressed the issue of whether it was constitutional to apply Act 152, promulgated by the Pennsylvania legislature in 1978 creating for the first time in Pennsylvania statutory sovereign immunity to cases which became actionable prior to the Act. In Gibson, plaintiff's injuries occurred on June 20, 1977, as a result of the Commonwealth's negligence. Plaintiff instituted suit after Mayle v. Pennsylvania Department of Highways, supra, which abolished sovereign immunity.

 Gibson held that a tort cause of action generally accrues on the date of the accident or injury. See Smith v. Fenner, 399 Pa. 633, 641, 161 A.2d 150, 154 (1960); Rebel v. Standard Sanitary Mfg. Co., 340 Pa. 313, 16 A.2d 534 (1940), and that it is well-settled that the legislature may not extinguish a right of action which has already accrued to a claimant. Id. at 83. Thus, Gibson determined that the legislative act creating governmental immunity may not constitutionally govern such actions and that elimination of plaintiff's right' of action that has already accrued and become vested would violate Article I, Section II of the Pennsylvania Constitution, *fn10" and the Fourteenth Amendment of the United States Constitution. Id. at 83. The court stated that fully applying the Mayle decision, "we conclude that the appellant's claims accrued before the promulgation of Act 152, and, therefore, may not be extinguished by the Act." Gibson added that though the date of a complaint's institution is relevant to the tolling of the statute of limitations, it has no place in the determination of appellant's substantive rights. Id. at 85. *fn11"

 In the instant case, under Gibson, plaintiff's cause of action accrued and vested on the date he was injured on August 28, 1989. At that time, Chapter 21-701 of the Philadelphia Code was the applicable law whereby the City waived immunity in police matters. Also, under Gibson, it is not relevant when the plaintiff filed his complaint which, in this case, was done after ordinance 1057 was passed repealing § 21-700 and declared retroactive as of December 4, 1990. The relevant issue is when plaintiff's action accrued and. vested and in this case it vested prior to the repeal of § 21-701. Accordingly, under Gibson, the legislature cannot extinguish a cause of action that has already accrued, and Ordinance 1057 cannot be applied retroactively to the plaintiff's negligence cause of action. *fn12" He may proceed with his negligence claim against the City. *fn13"

 Again, citing Fed. R. Civ. P. 56(c), the moving party for summary judgment has the burden of showing that there is no genuine issue as to any material facts, with all doubts being resolved against the moving party. See Drexel v. Union Prescription, Inc., supra. In this case, the defendants have not met their burden as to either of their arguments in support of their summary judgment motion since "genuine issues" as to material facts exist with all doubts in this case being resolved against the defendants as the moving party. For all the foregoing reasons, the defendants' Motion for Partial Summary Judgment must be denied. An appropriate order has already been issued.

 TULLIO GENE LEOMPORRA

 CHIEF

 UNITED STATES MAGISTRATE JUDGE


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