Philadelphia's document of government, its Home Rule Charter,
provides inter alia that the Police Commissioner is the head of the Police Department, and that the Fire Commissioner is the head of the Fire Department. 351 Pa. Code § 3.3-102. As such, the Police Commissioner's function is to "exercise the powers and perform the duties vested in and imposed upon" the Police Department; the same is true of the Fire Commissioner in his relationship to the Fire Department. 351 Pa. Code § 3.3-102.
Under Philadelphia's Home Rule Charter, one of the functions or duties of the Police Department is to "preserve the public peace, prevent and detect crime . . . train, equip and supervise . . . the Philadelphia Police. 351 Pa. Code § 5.5-201. Given the broad powers and duties of the Police Commissioner under the Home Rule Charter, it is my conclusion that such official has final decisionmaking powers regarding the functions of that department.
The Home Rule Charter also provides that the Fire Department has the power and duty to "extinguish fires at any place," "administer and enforce statutes, ordinances and regulations relating to fire and explosion hazards," and "train, equip, supervise, and discipline" firemen. 351 Pa. Code § 5.5-400. Since the Fire Commissioner is, by City Charter, given the duty of seeing that those functions are carried out, I conclude that he is an official with final decisionmaking powers as to that department of City government. Accordingly, in my view, Police Commissioner Sambor and Fire Commissioner Richmond was each a municipal official with final decisionmaking powers.
Notwithstanding the foregoing discussion, the plaintiff's § 1983 action against the City is confronted with another obstacle. The City, as a municipal defendant, has no liability for acts of policymaking officials that do not amount to constitutional violations. City of Los Angeles v. Heller, 475 U.S. 796 (1986); see Owen v. City of Independence, 445 U.S. 622 (1980). I have concluded that the decisions of the City of Philadelphia defendants to bomb the bunker did not constitute excessive force, and thus did not amount to a constitutional violation. Accordingly, there can be no basis for municipal liability regarding that decision. As to the decision to let the fire burn, my previous conclusion concerning the apparent lack of necessity for that decision or conduct leaves open a basis for holding that such action was constitutionally-violative excessive force. Since that conduct resulted from either the Police Commissioner or Fire Commissioner or both, the City would be subject to liability under Monell for that aspect of official behavior.
Here, the decision to let the MOVE house burn, resulting as it did from decisions by Commissioners Sambor and Richmond, must be deemed a policy decision within the meaning of Pembaur, and thus could subject the City itself to § 1983 liability. The decision to let the fire burn presents factual issues whose resolution could establish a constitutional violation for which the City would be liable. For that reason, the City's motion for summary judgment must be denied insofar as it relates to the plaintiff's allegations or claims concerning the decision to let the fire burn.
IV. THE PENDENT STATE LAW CLAIMS
The plaintiff has also advanced pendent state claims against all of the defendants. Specifically, she claims that:
The actions by the named defendants as described herein were extreme, outrageous, intentional and reckless. As a direct result of these actions, plaintiff suffered and continues to suffer from emotional trauma and physical injuries in the form of severe burns that are permanent scars, all of which is a direct result of the actions described herein. These actions are careless, negligent and/or constituted assault and battery and other unlawful conduct by defendants.