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07/01/97 SUSAN BURGER v. BOROUGH INGRAM

July 1, 1997

SUSAN BURGER, APPELLANT
v.
BOROUGH OF INGRAM, BOROUGH OF CRAFTON, REVCO D.S., INC., SGT. JAMES BLOOM, OFFICER GEORGE JAK



Appealed From No. GD 8510-92. Common Pleas Court of the County of Allegheny. Judge ROSS.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: July 1, 1997

Susan C. Burger appeals pro se from an order of the Court of Common Pleas of Allegheny County (trial court) which denied her motion for post-trial relief and entered judgment in favor of the Borough of Ingram, the Borough of Crafton, Sergeant James Bloom and Officer George Jak. We affirm.

On October 24, 1991, Burger took some manufacturers' coupons from a counter in the Revco Drug Store at the Crafton-Ingram Shopping Center. She left the drug store with a paid purchase and proceeded to Whitlock's Auto Parts Store which was located in the same shopping complex. Two employees from the Revco Drug Store pursued Burger after having reported a theft to the police. Burger was confronted by the two Revco employees and by Officer George Jak of the Ingram Police Department in Whitlock's Auto Parts Store.

Officer Jak accused Burger of theft, handcuffed her, searched her purse and found the manufacturers' coupons. The Revco employees told Officer Jak that the manufacturers' coupons were free to customers and did not press charges. Nonetheless, Officer Jak and Sergeant James Bloom of the Crafton Police Department drove Burger to the Crafton Police Station, handcuffed her to a chair, searched her person and took her car keys. Officer Jak then searched Burger's car where he found additional manufacturers' coupons. Burger was released on her own recognizance and was given a disorderly conduct citation. On November 26, 1991, Burger was found not guilty of disorderly conduct by a District Justice.

On October 23, 1992, Burger filed with the trial court a three-count complaint against the Borough of Ingram, the Borough of Crafton and Revco D.S., Inc. (Revco). In Count I of her complaint, Burger asserted that the conduct of Revco's employees in falsely accusing her of shoplifting and in notifying the police constituted slander. *fn1 In Counts II and III of her complaint, Burger asserted that the conduct of the Crafton Police Department and the Ingram Police Department constituted wrongful arrest. Burger sought compensatory and punitive damages.

On June 24, 1993, Burger filed with the trial court a petition for leave to amend her complaint and its caption. She sought to include Sergeant Bloom and Officer Jak in her complaint and to charge them with wrongful arrest and with violations of her civil rights under 42 U.S.C. § 1983. Burger also sought to add to her complaint allegations of civil rights violations by the Crafton Police Department and the Ingram Police Department. By order dated July 2, 1993, the trial court granted Burger's petition to amend her complaint and its caption. However, Burger never actually filed an amended complaint with the trial court. *fn2

A hearing was then held before a Board of Arbitrators on May 11, 1994. In its award, the Board of Arbitrators found in favor of the Borough of Ingram, the Borough of Crafton and Revco with respect to all counts in Burger's original complaint. The Board of Arbitrators also found in favor of Sergeant Bloom and Officer Jak with respect to the additional claims asserted in Burger's amended complaint. Burger filed an appeal from the award of the Board of Arbitrators and demanded a jury trial.

Burger's appeal proceeded to a jury trial in April 1995. Following the Conclusion of Burger's presentation of her case, the Borough of Ingram and the Borough of Crafton moved for a compulsory non-suit on the basis of governmental immunity pursuant to what is commonly referred to as the Political Subdivision Tort Claims Act (Act), 42 Pa.C.S. §§ 8541 - 8542. By order dated April 10, 1995, the trial court granted the motion for a non-suit.

Burger then filed a motion for post-trial relief seeking a reversal of the non-suit and a new trial. Burger asserted that the trial court had erred by allowing Sergeant Bloom and Officer Jak to be excluded from this case because they had not been named as defendants in a timely-filed amended complaint. Burger further asserted that the trial court had erred by concluding that the Borough of Ingram and the Borough of Crafton were immune from liability pursuant to the Act. Burger argued that Sergeant Bloom and Officer Jak were aware of and had acknowledged the fact that they were defendants in this case.

By order dated July 19, 1995, the trial court denied Burger's motion for post-trial relief and entered judgment for the Borough of Ingram, the Borough of Crafton, Sergeant Bloom and Officer Jak. The trial court noted that, on the eve of trial, Burger had made a motion to file her amended complaint. However, the trial court concluded that Burger's filing of an amended complaint was barred by the statute of limitations. The trial court also concluded that the Act did not set forth an exception to governmental immunity for wrongful arrest. As such, the Borough of Ingram and the Borough of Crafton were immune from suit with respect to Burger's claims.

Burger then appealed the trial court's determination to the Superior Court. By order dated September 19, 1996, Burger's appeal was transferred from ...


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