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