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JOHNSON v. CITY OF CHESTER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 31, 1998

TIFFANY JOHNSON
v.
CITY OF CHESTER, et al.

The opinion of the court was delivered by: DALZELL

MEMORANDUM

 Dalzell, J.

 July 31, 1998

 Defendants here move for dismissal of selected counts of Tiffany Johnson's complaint, which alleges violations of 28 U.S.C. § 1983 and state law claims against the City of Chester, its Mayor, Aaron Wilson, Jr., and its Commissioner of Police, Wendell Butler. The complaint alleges that defendants improperly charged Johnson with, and twice-prosecuted her unsuccessfully for, disorderly conduct arising out her statement at a City Council meeting that Mayor Wilson was an "ignorant bastard." For the reasons detailed below, we will grant defendants' motion in part, and deny it in part.

 In considering a motion to dismiss, we must under Fed. R. Civ. P. 12(b)(6) take all allegations contained in the complaint as true and construe them in a light most favorable to the plaintiff. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989); Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Frazier v. Southeastern Pa. Transp. Auth., 785 F.2d 65, 66 (3d Cir. 1986).

 I. Factual Background

 Accepting plaintiff's factual allegations as true for the purposes of this motion, the facts underlying her claim are not complicated. We quote the salient paragraphs of Johnson's complaint.

 

8. Ms. Johnson is a member of a citizens' group called Chester Residents Concerned for Quality Living ("CRCQL"). On or about February 19, 1997, CRCQL sent a letter to Wilson and to council members of the City of Chester relating to CRCQL's concern that they had not attended a hearing conducted by the Department of Environmental Protection relating to a soil processing facility to be built in the City of Chester. Wilson never responded to CRCQL's letter.

 

9. On or around March 13, 1997, Ms. Johnson attended a Chester City Council meeting. Ms. Johnson questioned Wilson as to why neither he nor council members responded to CRCQL's letter. Wilson refused to answer the question, and Ms. Johnson politely persisted. Wilson continually responded by stating "I choose not to respond." He then pounded his gavel and requested that the next person speak.

 

10. Frustrated that Wilson had directly refused to answer her questions, Ms. Johnson walked away, and called Wilson an "ignorant bastard." Wilson then asked Ms. Johnson to leave the public meeting. When Ms. Johnson did not leave, Wilson adjourned the meeting.

 

11. Wilson subsequently spoke with Butler, and the two of them decided to charge Ms. Johnson with disorderly conduct. Butler subsequently followed though on his agreement with Wilson, by charging Ms. Johnson with Disorderly Conduct, 18 Pa.C.S. § 5503 [sic ].

 

. . .

 

. . .

 

14. On April 14, 1997 plaintiff was tried before the Honorable William Day. *fn1" After the first witness was sworn, it became apparent that the Commonwealth could not present a viable case. District Justice Day dismissed the charge.

 

15. Not satisfied with the result, defendants re-filed the charge against Ms. Johnson . . . . Ms. Johnson and her lawyers filed a motion to dismiss the charges on double jeopardy grounds. On June 30, 1997, the scheduled trial date, the district court dismissed the second set of charges.

 Compl. at PP8-11, 14, 15.

 On March 13, 1998, plaintiff filed this action, alleging violations of 42 U.S.C. § 1983 (counts one and two), conspiracy to violate § 1983 (count three), false imprisonment or arrest (count four), malicious prosecution (count five), abuse of process (count six), and intentional infliction of emotional distress (count seven).

 II. Legal Analysis

 A. More Definite Statement

 Defendants first move for a more definite statement of plaintiff's claims, arguing that "the Third Circuit has developed a more stringent standard involving civil rights cases." Mot. Dismiss at 2 (citing cases). Defendants' argument, however, fails to account for the Supreme Court's holding in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), *fn2" in which Chief Justice Rehnquist, writing for a unanimous Court, held that the Federal Rules of Civil Procedure "do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius." Id. at 113 S. Ct. at 1163. Thus, plaintiff's claims alleging municipal liability are not subject to a heightened pleading standard beyond that provided in Fed. R. Civ. P. 8(a)(2) (requiring "a short and plain statement of the claim showing that the pleader is entitled to relief").

 While the Supreme Court in Leatherman expressly noted that it had "no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials," Id. at 113 S. Ct. at 1162, we think that the gravaman of the Court's ruling is in its Latin invocation, *fn3" which seems to defer exclusively to Congress and the Federal Rules of Civil Procedure when it comes to enhancing the requirements for pleading certain actions. Thus, we decline to impose a heightened pleading standard found in neither the Federal Rules nor the Supreme Court's cases. Accord Coades v. Jeffes, 822 F. Supp. 1189, 1192 (E.D. Pa. 1997)(citing Leatherman); cf. Brader v. Allegheny General Hosp., 64 F.3d 869, 876-77 (3d Cir. 1995)(noting in an antitrust case that "impatience with the notice pleading embodied in the Federal Rules is foreclosed by the Supreme Court's decision in Leatherman"); see generally Karen M. Blum, Heightened Pleading: Is There Life after Leatherman?, 44 Cath. U. L. Rev. 59 (Fall 1994).

 Since we conclude that, at a minimum, the complaint contains "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), we now move to consider defendants' argument that the City of Chester should be dismissed as a defendant.

 B. Dismissal of the City of Chester

 Defendants argue that "plaintiff never asserted that the City of Chester had a policy in effect which was violative of plaintiff's rights. Plaintiff only sets forth the singular acts of" defendants Butler and Wilson, Br. Supp. Mot. Dismiss at 3, and thus the City of Chester should be dismissed as a defendant. Id.

 Defendants are correct that a government entity may not be held liable pursuant to § 1983 under the doctrine of respondeat superior. Monell v. Department of Social Serv., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Andrews v. Philadelphia, 895 F.2d 1469, 1476 (3d Cir. 1990). Rather, "section 1983 liability attaches to a municipality only when 'execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.'" Andrews, 895 F.2d at 1480 (quoting Monell, 98 S. Ct. at 2037). "Policy is made when a 'decisionmaker possessing final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1986)). *fn4"

 While the complaint does not allege that plaintiff's injuries resulted from "an official proclamation, policy, or edict," it does allege that the individual defendants who personally took action on behalf of the City were its Mayor and Police Commissioner, and noting the obvious reality that they were "policymakers" of the City, Compl. at PP5-6, a characterization the defendants do not dispute. Cf. Andrews, 895 F.2d at 1481 (finding that the "Police Commissioner was a policymaker"). "A single incident violating a constitutional right done by a government agency's highest policymaker for the activity in question may suffice to establish an official policy." Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989)(citing Pembaur, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (county attorney's decision to have sheriffs enter premises established official policy)). Thus, the actions of the Chester Mayor and Police Commissioner, in allegedly twice prosecuting Johnson for disorderly conduct, may be regarded as policymaking actions attributable to the City of Chester. Therefore, the City of Chester is, at least at this point, a proper defendant in this action.

 C. Punitive Damages

 Although the City of Chester remains a defendant here, Johnson may not recover punitive damages against it. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2761, 69 L. Ed. 2d 616 (1981); See also Bolden v. SEPTA, 953 F.2d 807, 829-31 (3d Cir. 1991)(discussing Newport). Plaintiff does not oppose that aspect of the City's motion, so we will dismiss that claim without further comment.

 D. Qualified and Legislative Immunity

 Defendants next seek qualified immunity for Police Commissioner Butler, and both legislative and qualified immunity for Mayor Wilson, for their alleged actions.

 "Because the qualified immunity doctrine provides the official with immunity from suit, not simply trial, . . . the district court should resolve any immunity question at the earliest possible stage of the litigation." Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995) (citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) and Anderson v. Creighton, 483 U.S. 635, 646 n.6, 107 S. Ct. 3034, 3042 n.6, 97 L. Ed. 2d 523 (1987)). Defendants have the burden of pleading and proving qualified immunity. Losch v. Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2737, 73 L. Ed. 2d 396 (1982)).

 "Government officials performing discretionary functions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738; *fn5" see also Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986)(holding that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411 (1985)(holding that officials are immune unless "the law clearly proscribed the actions" they took). "Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action," Creighton, 483 U.S. at 640, 107 S. Ct. at 3038 (1987)(quoting Harlow, 457 U.S. at 819, 102 S. Ct. at 2739), based on the information the official actually possessed at the time. Id. at 107 S. Ct. at 3040.

 As we summarized this jurisprudence in Wilkinson v. Bensalem Township, 822 F. Supp. 1154 (E.D. Pa. 1993):

 

When analyzing a claim of qualified immunity, we must "first . . . identify the specific constitutional right allegedly violated, then . . . inquire whether at the time of the alleged violation it was clearly established, then further . . . inquire whether a reasonable person in the official's position would have known that his conduct would violate that right." Collinson [v. Gott ], 895 F.2d [994] at 998 (Phillips, J., concurring). The first two prongs of this inquiry are pure questions of law for the court to decide. See id. (citing Anderson v. Creighton, 483 U.S. 635, 637-43, 107 S. Ct. 3034, 3038-40, 97 L. Ed. 2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 535 n.12, 105 S. Ct. 2806, 2820 n.12, 86 L. Ed. 2d 411 (1985). The third prong is an application of Harlow's objective standard, which sometimes requires courts to make factual determinations concerning a defendant's conduct and its circumstances, but ultimately it, too, devolves into a matter of law for the court. See Collinson, 895 F.2d at 998 (Phillips, J., concurring); Creighton, 483 U.S. at 646 n.6, 107 S. Ct. at 3042 n.6.

 822 F. Supp. at 1157.

 "The dispositive issue in these types of cases is [typically] whether the right at issue was 'clearly established' at the time the official acted," Orsatti, 71 F.3d at 483, and in making that determination, "the proper focus is not upon the rights at its most general or abstract level, but upon its application to the particular conduct being challenged." Collinson, 895 F.2d at 998 (citing Anderson, 483 U.S. 640, 107 S. Ct. at 3038-39). As set forth infra, Johnson has sufficiently alleged that defendants charged and prosecuted her for exercising her right to free expression under the First and Fourteenth Amendments. She has also alleged -- and this motion does not challenge -- that defendants knowingly and in violation of her Fifth Amendment rights placed her in double jeopardy by prosecuting her a second time on those same charges. Such rights are among the most well-known and clearly-established in our Constitution. Thus, the complaint's allegations satisfy prongs one and two of the test we summarized in Wilkinson.

 As to prong three, Mayor Wilson argues that the fact that Johnson sought to express herself at a public meeting modifies the context -- and therefore objective reasonableness -- of her First and Fourteenth Amendment claim. Mayor Wilson argues that he -- like his counterpart in Wilkinson, see id. at 1156 -- asked Johnson to leave the Council meeting based on his belief that, acting as legislator, he could impose reasonable time, place, and manner restrictions on plaintiff's speech in that public forum, so long as they were content-neutral and narrowly tailored to serve a significant governmental interest. See 822 F. Supp. at 1157 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-6, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983)); see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-95, 104 S. Ct. 3065, 3069-70, 82 L. Ed. 2d 221 (1984); Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647-48, 101 S. Ct. 2559, 2563-64, 69 L. Ed. 2d 298 (1981). To bolster his position as to plaintiff's First and Fourteenth Amendment claims, Mayor Wilson cites Collinson v. Gott, 895 F.2d 994 (4th Cir. 1990)(per curiam), in which a fractured Fourth Circuit (each judge on the three-judge panel filed a separate opinion) upheld a grant of qualified immunity to a County Commissioner who had ejected the plaintiff from a public meeting.

 We need not, however, reach that question -- which is the same question we addressed in Wilkinson at length, see 822 F. Supp. at 1158 -- because Johnson is not complaining about defendants' actions during the meeting. Rather, she takes issue with thereafter being charged with, and prosecuted for, disorderly conduct for her actions at the meeting. See Opp'n Mot. Dismiss at 17. Whatever defendants' ultimate justification (if any) for the disorderly conduct charge, it cannot have been based on time, place, and manner restrictions on speech in a public forum, because the defendants did not act contemporaneously with that public speech. Under the First Amendment, the issue here is not plaintiff's right to be free from restrictions on her speech at the hearing, but rather her right to be free from post-speech retaliatory prosecutions.

 For similar reasons, we reject Mayor Wilson's claim of legislative immunity, *fn6" because the actions of which Johnson here complains -- namely, the two prosecutions -- took place outside the presence and scope of Mayor Wilson's legislative function, *fn7" Tenney v. Brandhove, 341 U.S. 367, 378, 71 S. Ct. 783, 789, 95 L. Ed. 1019 (1951)(finding legislative immunity because legislators were "acting in a field where legislators traditionally have power to act"); see also Ryan v. Burlington County, 889 F.2d 1286, 1290 (3d Cir. 1989) ("It is only with respect to the legislative powers delegated to them by the state legislatures that the members of local governing boards are entitled to absolute immunity.").

 As to Mayor Wilson's claim that he had probable cause to issue Johnson a citation for disorderly conduct pursuant to 18 Pa. Cons. Stat. § 5503, and thus is entitled to qualified immunity, we conclude that the record is not ripe for such a determination. Although the doctrine of qualified immunity shields officials' actions even if they "reasonably but mistakenly conclude that probable cause is present," Anderson, 107 S. Ct. at 3039, we simply have no information regarding what discussions took place between Police Commissioner Butler and Mayor Wilson, and whether they constitute valid probable cause or "mistaken probable cause" to issue a citation for disorderly conduct. *fn8" Thus, Police Commissioner Butler has failed to carry his burden of demonstrating that his actions were objectively reasonable, and thus he is not is entitled to qualified immunity. *fn9"

 Accordingly, we find that Johnson has adequately pleaded the violation of clearly-established constitutional rights, i.e., the First, Fifth, and Fourteenth Amendments, and that reasonable officials in defendants' positions would have known that their conduct, as alleged, would violate those rights. *fn10"

 E. 42 U.S.C. § 1983 Claims

 Defendants next move for dismissal of counts one and two of the complaint, which allege violations of 42 U.S.C. § 1983 *fn11" and plaintiff's First, Fourth, Fifth, and Fourteenth Amendment rights. Defendants offer no argument, however, why plaintiff's Fifth Amendment claims in count two should be dismissed, and therefore we omit that aspect of plaintiff's complaint from our consideration.

 1. First Amendment Violations

 Defendants first argue, without citation to authority, that Johnson has failed to state a claim for violation of her First Amendment rights because "plaintiff admits she was given an opportunity to speak, finished, was walking away, and called Defendant Wilson an 'ignorant bastard.' Based upon the facts set forth at the meeting, there is no basis for a First Amendment violation." Br. Supp. Mot. Dismiss at 7. This argument is specious, however, because it ignores Johnson's allegations -- which we are required to accept as true -- that "[Mayor] Wilson subsequently spoke with Butler, and the two of them decided to charge Ms. Johnson with disorderly conduct" for her actions at the meeting. Compl. at P11. It is beyond cavil that the "institution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under § 1983." Losch v. Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984) (citing Wilson v. Thompson, 593 F.2d 1375, 1377 (5th Cir. 1979)); see also Moore v. Valder, 314 U.S. App. D.C. 209, 65 F.3d 189, 193 (D.C. Cir. 1995) (distinguishing claim of retaliatory prosecution from malicious prosecution claim); see, e.g., Cohen v. California, 403 U.S. 15, 18, 91 S. Ct. 1780, 1785, 29 L. Ed. 2d 284, reh'g denied, 404 U.S. 876, 92 S. Ct. 26, 30 L. Ed. 2d 124 (1971)(reversing a defendant's conviction for displaying on his jacket the words "Fuck the Draft" because, inter alia, "the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed"); McDermott, 971 F. Supp. at 940 and n.5, 943 (holding that the defendant's use of "salty sailor talk," including the phrases "this is bullshit," "what the fuck is going on", and "I'm not fucking going anywhere," while "rude, discourteous, ill-mannered, coarse and boorish, . . . is not without constitutional protection"); id. at 943 ("It is one thing to be called vulgar for one's words, but it is quite another to be held a criminal for them."). Thus, the complaint, which alleges that defendants prosecuted Johnson for disorderly conduct for speaking out at the March 13, 1997 Council meeting, may be construed as a claim for retaliatory prosecution viable under § 1983. See Moore, 65 F.3d at 196 n.12 (citing cases).

 2. Fourth Amendment Violations

 Defendants also seek to dismiss Johnson's claims of malicious prosecution in violation of the Fourth Amendment, arguing that she has failed to allege a deprivation of liberty of constitutional dimensions. *fn12" Plaintiff concedes that she "was not physically seized or incarcerated at all," Opp'n Mot. Dismiss at 14, but argues that Justice Ginsburg's concurrence in Albright, which "suggests that someone in [plaintiff's] position suffers a 'seizure' under the Fourth Amendment, even while not in physical custody, as long as the criminal charges against him remain pending," Torres v. McLaughlin, 966 F. Supp. 1353, 1360 (E.D. Pa. 1997), precludes such a requirement.

 As the parties are both aware, we have twice-traversed this ground exhaustively, see Torres, 966 F. Supp. at 1357-64; Gallo, 975 F. Supp. at 726-31, and concluded that:

 

Absent any constitutionally-significant pretrial restraints on [plaintiff's] liberty, the weight of federal authority (at least as it stands today) holds that [plaintiff] may not maintain a § 1983 claim for malicious prosecution based on the pre-incarceration time period.

 Torres, 966 F. Supp. at 1364; see also Gallo, 975 F. Supp. at 728; Mateiuc v. Hutchinson, 1998 U.S. Dist. LEXIS 6710, No. Civ. A. 97-1849, 1998 WL 240331, at *2 (E.D. Pa. May 14, 1998)(adopting Torres and Gallo); Ganci v. City of Jenkintown, 1998 U.S. Dist. LEXIS 5097, No. Civ. A. 95-0262, 1998 WL 175881, at *3 (E.D. Pa. Apr. 14, 1998)(adopting Torres); Taylor v. City of Philadelphia, 1998 U.S. Dist. LEXIS 4295, No. Civ. A. 96-740, 1998 WL 151802, at *7 nn.7 & 8 (E.D. Pa. Apr. 1, 1998)(same). But see Trueman v. Lekberg, 1998 U.S. Dist. LEXIS 5368, No. Civ. A. 97-1018, 1998 WL 181816, at *2 n.7 (E.D. Pa. Apr. 16, 1998).

 In Torres, we held that "having to appear in state court for . . . preliminary hearings, arraignment and trial" -- the only "restraints" plaintiff alleges here -- did not amount to a constitutionally-significant seizure under the Fourth Amendment. 966 F. Supp. at 1364; see also Gallo, 975 F. Supp. at 729, 731 (holding that having to sign a bond, having to appear in federal court for arraignment and trial, and being prohibited from traveling beyond the Commonwealth and New Jersey ("a land area much larger than Denmark") did not amount to a constitutionally-cognizable seizure), id. at 728-29 (citing cases, including Chief Judge Posner's comment in Albright v. Oliver, 975 F.2d 343, 346 (7th Cir. 1992), that "if Denmark was a dungeon to Hamlet . . . we suppose Illinois could be a prison to Kevin Albright"). Plaintiff has offered neither more compelling facts nor intervening persuasive authority to warrant our pushing this rock up the hill again. Thus, Torres and Gallo compel us to dismiss plaintiff's Fourth Amendment claims.

 F. Conspiracy to Violate 28 U.S.C. § 1983

 Defendants also move to dismiss count three of the complaint, which alleges that "defendants Butler and Wilson, acting under color of state law, conspired with each other to violate Ms. Johnson's rights under the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution." Compl. at P26. This argument is wholly derivative, in that it rests on defendants' prior arguments that (a) Johnson may not maintain a cause of action based on any of constitutional Amendments she seeks to invoke, and (b) she has failed to plead the conspiracy with a heightened degree of specificity. Since we have, inter alia, allowed Johnson's § 1983 causes of action based on the First, Fifth, and Fourteenth Amendments to go forward, we dismiss this argument on its own terms without further analysis.

 G. False Imprisonment or Arrest

 Defendants next ask that we dismiss count four of the complaint, which alleges common-law "false imprisonment or arrest" against all defendants. See Compl. at PP28-31. Johnson "concede[s] that [she] was not physically seized or incarcerated at all" in this case, Opp'n Mot. Dismiss at 14, and does not oppose this aspect of defendants' motion to dismiss, so we will grant the motion as to that count. See Renk v. Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (Pa. 1994)(requiring "detention of another person" as an element of false imprisonment or arrest).

 H. Intentional Infliction of Emotional Distress

 Lastly, defendants argue that plaintiff's claim for intentional infliction of emotional distress is defective because she has failed to allege that defendants' conduct caused her to seek medical treatment. Although the Pennsylvania Supreme Court has not adopted section 46 of the Restatement (Second) of Torts ("Outrageous Conduct Causing Severe Emotional Distress"), it has concluded that a necessary prerequisite of such a claim is that, "at the very least, existence of the alleged emotional distress must be supported by competent medical evidence." Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 527 A.2d 988, 995 (1987). Panels of the Pennsylvania Superior Court have divided on the issue of whether a failure to allege that plaintiff sought medical treatment subjects that count to dismissal. Compare Britt v. Chestnut Hill College, 429 Pa. Super. 263, 632 A.2d 557, 562 (1993)(dismissing action) with Hackney v. Woodring, 424 Pa. Super. 96, 622 A.2d 286 (1993)(denying motion to dismiss); see also Lujan v. Mansmann, 956 F. Supp. 1218, 1227 (E.D. Pa. 1997) (denying motion to dismiss). Johnson did not, however, respond to this aspect of defendants' motion, and therefore we will grant it as unopposed and dismiss this count.

 An appropriate Order follows.

 ORDER

 AND NOW, this 31st day of July, 1998, upon consideration of defendants' motion to dismiss, and plaintiff's response in opposition thereto, and for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN PART in that:

 1. The motion to dismiss defendant City of Chester is DENIED, except the motion to dismiss punitive damages claims against defendant City of Chester is GRANTED;

 2. The motions to dismiss defendants Wilson and Butler is DENIED WITHOUT PREJUDICE;

 3. The motion to dismiss Count One is GRANTED only as to plaintiff's Fourth Amendment claims, and as to plaintiff's Fourteenth Amendment substantive due process claims;

 4. The motion to dismiss Count Two is GRANTED only as to plaintiff's Fourth Amendment claims, and as to plaintiff's Fourteenth Amendment substantive due process claims;

 5. The motion to dismiss Count Three is DENIED;

 6. The motion to dismiss Count Four is GRANTED AS UNOPPOSED; and

 7. The motion to dismiss Count Seven is GRANTED AS UNOPPOSED.

 BY THE COURT:

 Stewart Dalzell, J.


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