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CESCON v. DOVE

June 22, 1992

JOSEPH PETER CESCON
v.
GLEN DOVE



The opinion of the court was delivered by: EDWARD N. CAHN

 CAHN, J.

 This lawsuit seeks to place the Pottsville Police Department, and indeed every police department, on the horns of an intractable dilemma. The defendant, a Pottsville Police Officer, has asked the court to resolve the dilemma by cutting off one of the horns pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the court will do so.

 When ruling on a 12(b)(6) Motion, the court

 
must accept as true all factual allegations in the . . . complaint and all reasonable inferences that can be drawn from them. The . . . complaint must be construed in the light most favorable to the plaintiffs, and can be dismissed only if the plaintiffs have alleged no set of facts upon which relief could be granted.

 Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1410 (3d Cir.), cert. denied, 115 L. Ed. 2d 1007, U.S. , 111 S. Ct. 2839 (1991). The facts, as set forth in the plaintiff's proposed amended complaint, *fn1" are as follows:

 
6. On May 17, 1990, in Pottsville, Schuylkill County Pennsylvania, Cescon was operating a vehicle on North Progress Avenue, at the intersection of Arch Street in Pottsville, Schuylkill County, Pennsylvania.
 
7. On May 17, 1990, Glen A. Dove was in the uniform of the Pottsville Bureau of Police, operating a motor vehicle containing the markings of the Pottsville Bureau of Police.
 
8. On May 17, 1990, Dove caused Cescon to stop his motor vehicle by activating the red emergency lights.
 
9. After being stopped by Dove, Dove ordered Cescon out of the vehicle and then and there observed Cescon to have glassy, blood shot eyes, disheveled clothing, to speak with a slurred, incoherent tone, to sway on his feet, to stagger when he walked, and to possess about him the odor of intoxicating liquors. At the time that Dove stood next to Cescon Dove knew that Cescon was under the influence of alcohol and such that his ability to operate a motor vehicle was impaired and that Cescon could not stand or walk without assistance.
 
10. In response to questions posed to Cescon by Dove, Cescon stated to Dove that it was his birthday, that he had been drinking, that he did not want any trouble, and Cescon further asked Dove to be given a ride home.
 
11. Dove ordered and directed Cescon to perform tests of physical ability commonly known as "field sobriety tests."
 
12. Dove ordered and directed Cescon to perform a particular field sobriety test by ordering Cescon to stand on one foot with his arms stretched outright and in doing so Cescon, because of his apparent intoxicated condition, was caused to lose his balance, fall on his left ankle causing it to fracture.

 Pl. Answer to Def. Motion, Ex. A. *fn2" The plaintiff seeks damages to ...


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