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DEBRA A. AGRESTA v. POLICE OFFICER JAMES GILLESPIE (08/31/93)

filed: August 31, 1993.

DEBRA A. AGRESTA, ADMINISTRATRIX OF THE ESTATE OF SAMUEL JEROME AGRESTA, DECEASED AND DEBRA AGRESTA, P/NG AND SAMUEL JEROME AGRESTA, JR., A MINOR AND ANTHONY R. AGRESTA, A MINOR
v.
POLICE OFFICER JAMES GILLESPIE, BADGE NO. 2237, POLICE OFFICER THOMAS FITZPATRICK, BADGE NO. 2180 AND DETECTIVE AL DONAN A/K/A AL DOMAN, BADGE NO. 7776, DETECTIVE WILLIAM MCCLOSKEY, BADGE NO. 9242 AND CITY OF PHILADELPHIA, APPELLANTS



APPEALED From No. 851 March Term, 1987. Common Pleas Court of Philadelphia County. Judge CAESAR

COUNSEL

Michael F. Eichert, Divisional Deputy, Appeals, for appellant, City of Philadelphia.

Edward A. Rudley for appellees.

Before: Honorable Joseph T. Doyle, Judge, Honorable Dan Pellegrini, Judge, Honorable George T. Kelton, Senior Judge

Author: Pellegrini

Opinion BY JUDGE PELLEGRINI

The City of Philadelphia (City) appeals from a judgment entered following a jury verdict in the Court of Common Pleas of Philadelphia County (trial court) holding that the City and its agents' negligence were responsible for the wrongful death of Samuel Jerome Agresta (Agresta).*fn1

Agresta owned a telecommunications business and employed Thomas Spurka (Spurka) as a salesman.*fn2 On the afternoon of December 19, 1985, Agresta telephoned his wife from his car telephone, indicating that he believed Spurka to have stolen equipment from the company warehouse that he intended to retrieve. He proceeded to the company warehouse and engaged in a confrontation with Spurka which turned into a scuffle. After this altercation was broken up by two maintenance workers who witnessed the incident, Agresta left the building and Spurka telephoned police, alleging that Agresta had tried to kidnap him at gunpoint.

Based upon Spurka's complaint, police decided to arrest Agresta. Proceeding without a warrant or further investigation, police had Spurka telephone Agresta and arrange a meeting between the two where police would be waiting. Agresta agreed to a meeting, but insisted that it take place in the parking lot of the Oregon Diner in South Philadelphia. Four officers were detailed to effect the arrest using two unmarked police cars. In one car were Officers Gillespie and Fitzpatrick, both uniformed patrolmen. In the second car were two non-uniformed detectives, Doman and McCloskey. It was planned that the uniformed officers were to identify themselves and arrest Agresta while the detectives supervised from their car.

Agresta arrived for the meeting at approximately 7:20 p.m. and parked his car adjacent to Spurka's which was parked in the middle of the lot. The non-uniformed detectives immediately drove in front of Agresta's car to block any escape. Deviating from the original plan, Detective Doman jumped out of the unmarked car and rushed Agresta's. Agresta reacted by speeding off, striking the unmarked police car in the process. As Agresta made his way out of the lot, Detective Doman fired at his car four times, shattering the rear window and striking Agresta in the right shoulder.

The two uniformed officers who were supposed to have made the arrest gave chase in their unmarked car without using any lights or sirens. They pursued Agresta through the streets of South Philadelphia until Agresta came upon a marked police van parked diagonally across Delaware Avenue. Upon reaching the police van, Agresta slowed almost to a stop. However, the pursuing unmarked car struck Agresta's and he began to speed up again. Seconds later, the officers in pursuit fired their weapons from the windows of the unmarked car and fatally wounded Agresta with a shotgun blast to the head.

Agresta's estate and widow (Estate) brought a wrongful death and survival action against the City. At trial, while there were many fact witnesses,*fn3 the only witness to testify as to the propriety of the police handling of Spurka's allegations and arrest was Dr. James J. Fyfe, a former Police Lieutenant in the New York City Police Department and presently a Professor of Criminal Justice at American University.*fn4 With regard to the handling of Spurka's allegations against Agresta, he testified that the police did not follow the standard of conduct expected of police officers by failing to take certain steps to corroborate the allegations made by Spurka against Agresta before attempting the arrest.*fn5 He testified that the police should have made a criminal record check of Spurka and awaited the results to determine how much credence they should give his allegations, and based on that check, how to proceed with bringing Agresta into custody. If they had made that check, the investigating officer would have learned that Spurka had twice been convicted of felonies which would have suggested Spurka may have instigated the incident.*fn6 Dr. Fyfe also testified that the police should have sought to corroborate Spurka's story by interviewing the two persons who were known to have witnessed the altercation between Spurka and Agresta.*fn7 He also testified that the police should have contacted police from Agresta's home district to see if Agresta was known to them and to obtain some corroboration of Spurka's allegations before deciding to have Spurka arrange a meeting with Agresta so that Agresta could be arrested.*fn8 If the police had obtained the information by following proper police procedures, it was Dr. Fyfe's opinion that the reasonable course of conduct for the police would have been to issue an arrest warrant and request Agresta to turn himself in for questioning rather than stage an ambush-style arrest.

As to the method used in making the arrest, Dr. Fyfe again opined that the police did not follow proper procedure. He testified that it was negligent for the police to attempt to arrest Agresta by having the person with whom he had an altercation set up a meeting in a dark parking lot. Dr. Fyfe stated that it was improper for police not to attempt to communicate with Agresta prior to attempting the arrest and to use non-uniformed officers in the attempt. Further, Dr. Fyfe testified that it was improper for police to use an unmarked vehicle without any lights or sirens to chase Agresta, and during the chase, the police failed to keep a safe distance from Agresta's car in that the police car hit Agresta's car just as he slowed down to stop.

The trial court charged the jury as to negligence as follows:

Let's talk about this specific case. Now, if you find that the police in this case, meaning the course of conduct started at the moment when a complainant first came to a policeman and started something, until Samuel Jerome Agresta was shot and, as a result thereof, died, if you believe that the police were negligent and that their negligence was the legal cause of the death of Samuel Agresta, then the City will be liable. . . .

What do we mean by negligent? Careless. Careless meaning doing something that a reasonably careful person would not do under the circumstances, or failing to do something that a reasonably careful person would have done under the circumstances.

Everybody is required to behave with reasonable care, but in addition, when you're dealing with police, you have to judge what they did or didn't do based upon what you would expect from a reasonably careful police officer -- when I say officer, I mean everyone in the chain, everyone connected with the police department -- what a reasonably careful person would have done under those circumstances as they existed. Starts at the beginning and goes all the way through. (R.R. 1039a-1040a).

The jury found the City negligent and awarded damages in the amount of $4.8 million.*fn9 The City filed a motion for a new trial, as well as a motion for judgment notwithstanding the verdict (n.o.v.). Both were denied by the trial court and this appeal followed.

I.

The City initially contends that the trial court erred in refusing to grant a compulsory non-suit at the close of plaintiff's case, because recovery is barred by the immunity conferred by the Political Subdivision Tort Claims Act, 42 Pa. C.S. ยงยง 8541-8564. Whether the City is immune is controlled by the effect on this action of the City's repeal of Chapter 21-700 of the Philadelphia Code in force between 1971 and 1990. Chapter 21-700 prohibited the City from pleading immunity in cases arising out of police negligence. On December 4, 1990, this section was repealed,*fn10 and the repealer extended to all pending cases. The City argues that because the instant case had not yet come to trial and was pending, once Chapter 21-700 was repealed, the bar to pleading immunity was removed; and alternatively, because immunity is never waived and can be raised at any time, the trial court should have granted it compulsory non-suit. See, e.g., In re Upset Sale of Properties, 522 Pa. 230, 560 A.2d 1388 (1989).

We addressed that contention in City of Philadelphia v. Patton, 148 Pa. Commonwealth Ct. 141, 609 A.2d 903 (1992), and City of Philadelphia v. Gray, 133 Pa. Commonwealth Ct. 396, 576 A.2d 411 (1990), petition for allowance of appeal granted, 526 Pa. 654, 586 A.2d 923 (1991), where we held that governmental immunity did not apply. In those cases, we held that the City could not give retroactive effect to the repealer of Chapter 21-700 to those cases where the cause of action had accrued while the Chapter was still in effect. Patton, 148 Pa. Commonwealth Ct. at 146, 609 A.2d at 906.*fn11 While it is true that the matter had not been brought to trial when the repealer was enacted in 1990 and was "pending", because the cause of action had accrued in December of 1985 when Chapter 21-700 was in effect, recovery is not barred by the Political Subdivision Tort Claims Act.

II.

The City contends that the trial court improperly denied its motion for judgment n.o.v., because no cause of action exists for a negligent police investigation that led to its decision to arrest Agresta, and that none exists for the negligent apprehension of a criminal suspect if there was probable cause to make the arrest. For there to be a cause of action in tort, plaintiff must establish:

1. a recognized legal duty exists requiring the defendant to conform to a ...


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