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MOSER v. BASCELLI

October 17, 1994

WILLIAM H. MOSER, Plaintiff,
v.
FRANCIS BASCELLI, et al., Defendants.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 October 17, 1994

 This civil matter has been brought before the Court by motion of the defendants, Officer Francis Bascelli, the Ridley Township Police Department and Ridley Township, who seek dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the defendants' motion to dismiss is granted in part and denied in part.

 I. HISTORY OF THE CASE

 The plaintiff in this case is William Moser, a motorist who received a gunshot wound to each arm as a result of an altercation with members of the Ridley Township Police Department (Police Department). Mr. Moser has brought this lawsuit, seeking compensatory and punitive damages as well as attorneys' fees and costs, against the Police Department, Ridley Township and Officer Francis Bascelli, the police officer who allegedly fired the shots that caused Mr. Moser's injuries. Mr. Moser's complaint contains five counts, including the torts of battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and a claim based on respondeat superior, as well as a federal claim alleging that the defendants violated Mr. Moser's civil rights. In support of their motion to dismiss the complaint, the defendants assert that they are immune, under Pennsylvania law, from liability under the pendent tort claims. Further, the defendants argue that the civil rights claim should be dismissed because the complaint lacks the factual specificity required of claims based upon civil rights violations.

 The facts giving rise to this action are in considerable dispute, but since the issue here is whether Mr. Moser has stated a claim on which relief can be granted, this Court must take as true all of the factual allegations made in the complaint. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). Accordingly, on April 15, 1992, Mr. Moser was operating a vehicle in the vicinity of Ridley Township, Pennsylvania when he apparently failed to come to a complete stop at a posted stop sign. Police officers signaled Mr. Moser to stop the car, but Mr. Moser continued to proceed toward his home. Other officers became involved in the chase, and eventually the police car driven by Officer Bascelli trapped Mr. Moser so that he could proceed no further. At that point, Officer Bascelli got out of the car, uttered a warning to Mr. Moser, and then fired three shots at the plaintiff, two of which struck Mr. Moser in the arms. Mr. Moser, sensing greater danger, then ran his car into Officer Bascelli's car in order to effectuate an escape. After moving the police car out of the way, Mr. Moser drove to his home, where he was arrested after a brief scuffle.

 II. DISCUSSION

 A. Standards Applicable to a Rule 12(b)(6) Motion

 In considering a motion to dismiss pursuant to Rule 12(b)(6), the complaint's allegations must be construed favorably to the pleader. The court must accept as true all of the plaintiff's factual allegations and draw from them all reasonable inferences. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991) (citations omitted). Thus, the court will grant a Rule 12(b)(6) motion only if there are no set of facts under which the non-moving party can prevail. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Further, a complaint may be dismissed pursuant to Rule 12(b)(6) where the defendant contends that under the facts alleged he is entitled to immunity, even though immunity is generally characterized as an affirmative defense. Jordan v. Fox, Rothschild, O'Brien & Frankel, 787 F. Supp. 471, 480 (E.D. Pa. 1992), vacated on other grounds, 20 F.3d 1250 (3d Cir. 1994). In deciding this motion, this Court will apply these standards to each of the five counts raised in Mr. Moser's complaint.

 B. Battery

 Under Pennsylvania law, "the elements of the tort of battery are 'a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.'" Levenson v. Souser, 384 Pa. Super. 132, 146, 557 A.2d 1081, 1088 (quoting Prosser & Keeton, Law of Torts, at 39 (5th ed. 1984)), appeal denied, 524 Pa. 621, 571 A.2d 383 (1989). Although the defendants' motion is styled as a request to dismiss the plaintiff's complaint in its entirety, the defendants do not dispute that Mr. Moser's complaint properly states a claim of battery as to Officer Bascelli. Officer Bascelli's conduct, as alleged in the complaint, satisfies all of the elements of the tort of battery. As a result, Mr. Moser's claim of battery as to Officer Bascelli will survive this motion.

 The Police Department and Ridley Township, on the other hand, assert that they are immune from liability on the battery charge pursuant to Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541--8564 (the Tort Claims Act). The general provision with respect to governmental immunity dictates that "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." § 8541. The Tort Claims Act, however, provides for exceptions to the broad immunity granted in section 8541. Accordingly, a local agency will not be immune if two conditions are met: (1) the cause of action arose out of acts which would, under normal circumstances, expose the actor to liability pursuant to either statutory or common law; and (2) "the injury was caused by the negligent acts of the local agency or an employee thereof . . . ." § 8542(a)(emphasis added). The Tort Claims Act specifically provides that "'negligent acts' shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct." § 8542(a)(2).

 Therefore, the Police Department and Ridley Township are immune from all lawsuits arising out of the willful misdeeds of their police officers. Since battery is an intentional tort, and the acts alleged in the complaint describe willful misconduct on the part of Officer Bascelli, the Police Department and Ridley Township are immune from any lawsuit grounded in battery. See Agresta v. City of Philadelphia, 694 F. Supp. 117, 123 (E.D. Pa. 1988)(dismissing plaintiff's battery and intentional infliction of emotional distress claims against the defendant City of Philadelphia on the grounds that the ...


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