United States District Court, E.D. Pennsylvania
February 12, 2004.
WALTER E. THOMAS, JR., Plaintiff
IPC INTERNATIONAL CORPORATION, LaSALLE PARTNERS MANAGEMENT SERVICES, INC., BOROUGH OF WYOMISSING, POLICE OFFICER JOHN G. PHILLIPS, POLICE CHIEF JEFFREY R. BIEHL Defendants
The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge
MEMORANDUM AND ORDER
Plaintiff Walter E. Thomas, Jr., ("Plaintiff) has filed a complaint
against Defendants IPC International Corporation ("IPC"), LaSalle
Partners Management Services, Inc., ("LaSalle Partners"), Borough of
Wyomissing ("Wyomissing"), Police Officer John G. Phillips ("Officer
Phillips"), and Police Chief Jeffrey R. Biehl ("Police Chief Biehl") for
injuries arising out of an altercation with Officer Phillips. Against
Defendant IPC, Plaintiff has alleged malicious prosecution (Count I),
false imprisonment (Count II), false arrest (Count III), intentional
infliction of emotional distress (Count IV), and negligence (Counts V).
Plaintiff has alleged an additional negligence claim against Defendant
LaSalle Partners (Count VI). Finally, Plaintiff alleges § 1983 violations
against Wyomissing and Biehl (Counts VII) and Phillips (Count VIII).
Before us now are two motions for summary judgment, one submitted on
behalf of Officer Phillips and Police Chief Biehl and one on behalf of
IPC. For the reasons stated below we deny Defendants' Borough of
Wyomissing, Police Chief Biehl, and Officer Phillips motion for
summary judgment and grant in part and deny in part Defendant IPC's
motion for summary judgment.
On or about September 28, 2000, Plaintiff was arrested in connection
with the burglary of the Berkshire Mall in Wyomissing, Pennsylvania.
Plaintiff pled guilty to the offense, which he committed with the
assistance of his cousin, Craig Charlemagne, who was then employed by IPC
as Public Safety Officer at the Berkshire Mall. As a result of the
burglaries, IPC prepared a "Defiant Trespass Notice" to notify Plaintiff
and Charlemagne that they were no longer permitted on mall property. The
"Defiant Trespass Notice" was apparently never presented to Plaintiff, as
evidenced by the notation "not present" where Plaintiff's signature
should have been.
On the evening of October 24, 2000, Plaintiff drove to the Old Country
Buffet Restaurant with his daughter, Jasmine Thomas, to pick up her
mother, Jennifer Setta. The Old Country Buffet Restaurant is located at
Berkshire Mall West, which is across the street from, but still part of,
the Berkshire Mall. While Plaintiff waited inside the car for his
daughter to get her mother inside the restaurant, he observed IPC Public
Safety Officer (PSO) Thomas Haines driving by and waved to him. Believing
Plaintiff to be banned from the Berkshire Mall, PSO Haines requested
assistance from another PSO, Andy McAfee, to confirm Plaintiff's
identity. After McAfee confirmed Plaintiff's identity, Haines contacted
the Mall Security Office in order to obtain a copy of the Defiant
Trespass Notice and the Wyomissing Police Department for assistance.
Officer Phillips arrived shortly and pulled up behind Plaintiff in a
marked police car. Here the parties' accounts diverge.
According to Plaintiff, both he and Officer Phillips got out of their
cars. Officer Phillips
then notified Plaintiff that he was not permitted to be there. Plaintiff
responded that he had not received any such notice, that he worked at the
Old Country Buffet, and that he was picking up his daughter's mother
there. Officer Phillips then approached Plaintiff and told him to get
against the car because he was under arrest. He then grabbed Plaintiff
and threw him against Plaintiff's car so hard it caused Plaintiff to
bounce off the car. At that point, Officer Phillips yanked Plaintiff's
wrists back and handcuffed him. Plaintiff alleges that he was not
resisting the arrest and went into custody easily. However, at some
point, he lost his balance and fell to the ground, causing him to say, "My
back," to Officer Phillips. Officer Phillips then grabbed Plaintiff by
the handcuffs and yanked him up, ordering him to stop resisting. Next
Officer Phillips brought Plaintiff over to the police car, where he again
slammed him against the car before putting him in the back seat. During
this time, Plaintiff repeatedly called out for his daughter and her
mother and asked Officer Phillips if he could go calm his daughter down,
who was, by that time, in front of the restaurant.
Defendants' allege a different set of facts regarding what took place
upon Officer Phillips' arrival at Berkshire Mall West. Defendants state
that Officer Phillips was immediately informed by McAfee that Plaintiff
had been banned from mall property. Officer Phillips then pulled his car
up behind Plaintiff without turning the emergency lights on. At that
moment, Plaintiff got out of his car and began walking towards Officer
Phillips, yelling something to the effect of "What are you doing here,
why are you bothering me, why are you harassing me?" Officer Phillips
also got out of the car and asked Plaintiff to calm down and informed him
that he was there to investigate because Plaintiff had been banned from
mall property. Plaintiff, however, continued to scream and use
profanities, and assumed a combative stance toward
Officer Phillips by putting his right foot back and bringing his
arms up to his chest. As Plaintiff came within a couple of inches of
Officer Phillips, Officer Phillips decided to arrest him for disorderly
conduct. He then advised Plaintiff that he was placing him under arrest,
turned Plaintiff around, and handcuffed him. Phillips later testified
that he was at that moment arresting Plaintiff for disorderly conduct.
Although Plaintiff did not resist being handcuffed, when Officer Phillips
attempted to walk him to the police car, Plaintiff resisted walking by
trying to push backwards and made statements such as, "I wish you could
take these fucking cuffs off me, and I'll take care of you." Once they
reached the police car, Officer Phillips placed him in the back.
It is undisputed that after Plaintiff was placed in the police car, PSO
MacAfee informed Officer Phillips that the Mall Security Office could not
confirm that Plaintiff had received the Defiant Trespass Notice.
Consequently, Officer Phillips only issued a citation for disorderly
conduct, which Plaintiff signed with a not guilty plea, and released him.
II. Standard of Review
The court shall render summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there
is a sufficient evidentiary basis on which a reasonable jury could find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). A factual dispute is "material" only if it might affect the
outcome of the suit under governing law. Id. at 248. All inferences must
be drawn and all doubts resolved, in favor of the non-moving party. See
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy,
762 F.2d 338, 341 (3d Cir. 1985).
On a motion for summary judgment, the moving party bears the initial
burden of identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment,
the non-moving party must respond with facts of record that contradict
the facts identified by the movant and may not rest on mere denials. Id.
at 321 n. 3 (quoting Fed.R.Civ.P. 56(e)). See First Nat'l. Bank of Pa.
v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The
non-moving party must demonstrate the existence of evidence that would
support a jury finding in its favor. See Anderson, 477 U.S. at 248-49.
a. Defendants' Wyomissing, Officer Phillips, and Police Chief Jeffery
Biehl's Motion for Summary Judgment as to Plaintiff's § 1983 Claims
Defendants Wyomissing, Officer Phillips, and Police Chief Biehl move
for summary judgment with regard to Plaintiff's § 1983 claims. Since the
parties have stipulated and agreed that Wyomissing and Police Chief Biehl
are dismissed from this lawsuit, we will dismiss Defendants' motion as to
Wyomissing and Police Chief Biehl as moot and decide this motion only as
to the claim against Officer Phillips (Count VIII). In Count VIII,
Plaintiff alleges that Officer Phillips used excessive force in arresting
him in violation of his Fourth, Fifth, and Fourteenth Amendment rights.
However, "a claim for excessive force `should be analyzed under the
Fourth Amendment and its `reasonableness standard,' rather than a
`substantive due process approach.'" DeBellis v. Kulp, 166 F. Supp.2d 255,
271 (E.D. Pa. 2001), citing Graham v. Connor, 490 U.S. 386, 395 (1989).
In deciding whether excessive force was used, courts must balance "`the
nature and quality of the intrusion on the individual's Fourth Amendment
against the countervailing governmental interests at stake." Id., quoting
Tennessee v. Garner, 471 U.S. 1, 8 (1985). The inquiry is an objective
one, which asks whether the police officer's actions were "`objectively
reasonable' in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation." Id., citing
Graham, 490 U.S. at 397. Thus there is no hard and fast rule as to the
amount of force that police may use in any given situation. Rather, a
determination of whether excessive force was used is entirely dependant
upon the facts of any given situation.
Since Plaintiff and Defendant Officer Biehl disagree as to the
circumstances prior to and during the arrest on October 24, 2000, under
Graham, this amounts to a genuine issue of material fact. Plaintiff
alleges that in spite of the fact that he was cooperative in the arrest
and only asked if he could comfort his daughter, Officer Phillips used
excessive force with him by slamming him against the car twice and
pulling him up from the ground by his handcuffs. Defendant Officer
Phillips, on the other hand, alleges that Plaintiff was verbally and
physically aggressive, jumping out of his car as soon as Officer Phillips
pulled up, then walking towards Officer Phillips while screaming, and
ultimately assuming a combative stance inches from Officer Phillips.
Given the disparity in these versions of the incident that took place on
October 24th, and their central importance to determining whether
excessive force was used in the arrest, summary judgment would not be
appropriate at this time. Therefore we deny Defendant Officer Phillips'
motion for summary judgment.
b. Defendant IPC's Motion for Summary Judgment with regard to Counts I
through V and IPC's Crossclaims
Defendant IPC moves for summary judgment with regard to Counts I
through V of
Plaintiff's claims against and of all crossclaims against IPC. Since
Plaintiff has withdrawn his malicious prosecution (Count I) and
intentional infliction of emotional distress (Count IV) claims, we will
dismiss as moot IPC's motion for summary judgment as to these claims. We
now consider IPC's motion for summary judgment with regard to Plaintiff's
remaining claims of false imprisonment (Count II), false arrest (Count
III), and negligence (Count V).
i. False Imprisonment and False Arrest
IPC argues that there are no genuine issues of material fact as to
Plaintiff's false imprisonment and false arrest claims and that it is
entitled to judgment as a matter of law because Plaintiff cannot
establish that IPC arrested or detained him, or even attempted to do so.
Since false arrest and false imprisonment have come to be viewed as
nearly identical claims, we will analyze them together. See Olender v.
Township of Besalem, 32 F. Supp.2d 775, 791 (E.D. Pa. 1999). IPC is
correct that in order to establish a claim of false imprisonment or false
arrest, Plaintiff must show that he was detained or arrested and that the
detention or arrest was unlawful. Id. Since, IPC argues, it is undisputed
that no IPC employee arrested or detained Plaintiff in any way, IPC
argues it is entitled to judgment as a matter of law on these claims.
However, Plaintiff argues that a defendant can also be liable for false
arrest and/or false imprisonment if he or she knowingly provides
information, or incomplete information, which leads to an individual's
false imprisonment or false arrest. See Doby v. DeCrescenzo, 1996 U.S.
Dist. LEXIS 13175, *38 (E.D. Pa. 1996); Gilbert v. Feld, 788 F. Supp. 854
(E.D. Pa. 1992). Plaintiff is correct that two courts in the Eastern
District of Pennsylvania have reached this conclusion. However, we
respectfully disagree with the basis for the holdings in these cases, and
rely instead on the more persuasive holding in Simmons v. Poltrone, 1997
U.S. Dist. LEXIS 20512, *22-26. In both
Doby and Gilbert, the courts cited the rationale of the court in Hess v.
County of Lancaster, 100 Pa. Commw. 316 (Pa. Commw. 1986), in which an
individual was held liable for false imprisonment and false arrest for
providing misleading information to a third party. But, as the court
pointed out in Simmons, the Hess case is inapposite because it dealt with
a malicious prosecution claim, not a false arrest and/or false
imprisonment claim. Thus it should not be read to conclude that
Pennsylvania courts would recognize a false imprisonment and/or false
arrest claim caused by providing misleading information to a third
party. Since we decline to accept the courts' holdings in Doby and
Gilbert, we must apply the traditional analysis of a false imprisonment
and false arrest claim. As it is undisputed that no IPC employee
participated in the arrest and detainment of Plaintiff, we find that IPC
is entitled to judgment as a matter of law as to Plaintiff's false arrest
and false imprisonment claims.
IPC moves for summary judgment with regard to Plaintiff's negligence
claim on the grounds that IPC did not breach any duty it might have owed
to Plaintiff. Plaintiff, on the other hand, argues in its brief that IPC
breached its duty to protect Plaintiff, a business invitee on Berkshire
Mall property, from foreseeable dangers on the property. Specifically,
Plaintiff asserts that IPC breached its duty to Plaintiff by failing to
notify him that he was banned from mall property. Additionally, Plaintiff
cryptically claims that "IPC's representative, McAfee, breached his duty
to competently carry out his position as a Public Safety Officer by
promptly reporting problems or deficiencies." (Pl.'s Response to IPC's
Motion at 10). We assume here that Plaintiff is arguing that McAfee was
negligent in calling the police since he allegedly knew that Plaintiff
had not yet received notice that he was banned from mall property.
asserts that IPC's breaches caused Plaintiff injury because they created
the opportunity for Plaintiff's "encounter with Officer Phillips."
There is no genuine issue of material fact as to the events surrounding
IPC's alleged negligence. Plaintiff and IPC agree that an IPC employee,
McAfee, informed police that Plaintiff was trespassing at the Berkshire
Mall, but that Plaintiff had apparently never been notified that he was
banned from the Berkshire Mall. Further, it is undisputed that Plaintiff
was arrested and detained by Officer Phillips. Although there is a
genuine issue of material of fact as to whether Officer Phillips used
excessive force in arresting Plaintiff, we will assume Plaintiff was
injured in the course of being arrested for purposes of assessing
Plaintiff's negligence claim.
Whether IPC had a duty to Plaintiff in this instance is dependant upon
whether IPC knew or had reason to know that the conduct of Officer
Phillips, or the Wyomissing Police Department, would likely be injurious
to Plaintiff. As the court stated in Moran v. Valley Forge Drive-in
Theater. Inc., citing Section 344 of the Restatement (Second) of
Torts, a duty does not arise until the possessor of a property held open
to the public
knows or has reason to know that the acts of the third
person are occurring, or are about to occur [or unless
h]e may  know, or have reason to know, from past
experience that there is a likelihood of conduct on
the part of third persons in general which is likely
to endanger the safety of the visitor.
246 A.2d 875, 878 (Pa. 1968).
Thus, unless Plaintiff can establish facts which demonstrate that IPC
knew or had reason to know that calling the Wyomissing Police Department
would result in injury to Plaintiff, IPC had no duty Plaintiff. Since
Plaintiff has not alleged any facts which would create such a duty, we
cannot find that IPC was negligent and IPC is therefore entitled to
judgment as a matter of law on
iii. Cross Claims Brought By and Against IPC and Entry of Final
Having granted summary judgment as to the remaining claims against IPC
and seeing no reason why the above legal analyses and conclusions would
not also apply with regard to cross-claimants LaSalle Partners and
Officer Biehl, we will accordingly grant summary judgment as to all cross
claims by and against IPC. There being no remaining claims against IPC
and no just reason to delay, we now direct an entry of final judgment as
to Defendant IPC, pursuant to Federal Rule of Civil Procedure 54(b).
See Waldorf v. Shuta, 142 F.3d 601, 608-10 (3d Cir. 1998).
Defendants' Borough of Wyomissing, Police Chief Biehl, and Officer
Phillips Motion for Summary Judgment is dismissed as moot as to the
Borough of Wyomissing and Police Chief Biehl, since Plaintiff has agreed
to dismiss both of these parties from this suit. However, as to Defendant
Officer Phillips, it is denied with regard to the § 1983 claim against
him because a genuine issue of material fact exists as to the amount of
force that was used during Plaintiff's arrest. Defendant IPC's Motion for
Summary Judgment is denied in part and granted in part. It is dismissed
as moot with regard to Plaintiff's malicious prosecution (Count I) and
intentional infliction of emotional distress (Count IV) claims, which
Plaintiff has agreed to withdraw. It is granted as to the false
imprisonment (Count II), false arrest (Count III), and negligence (Count
V) claims, as well as all crossclaims by and against IPC. An appropriate
order will follow.
AND NOW, this 12th day of February, 2004, upon consideration of
Defendants' Borough of Wyomissing, Police Officer John G. Phillips, and
Police Chief Jeffrey Biehl's Motion for Summary Judgment Pursuant to
Federal Rule of Civil Procedure 56, filed on January 14, 2004, and
Memorandum of Law in support thereof, filed on January 14, 2004;
Plaintiff's Response to Defendants' Borough of Wyomissing, Police Officer
John Phillips and Police Chief Jeffrey Biehl's Motion for Summary
Judgment, filed on January 30, 2004; Motion for Summary Judgment by
Defendant IPC International Corporation, filed on January 14, 2004, and
Brief in support thereof, filed on January 14, 2004; and Plaintiff's
Response to the Motion of Defendant, IPC International Corporation, for
Summary Judgment on Counts I-V of Plaintiff's Complaint, filed on January
30, 2004, it is hereby ORDERED that:
1) Defendants Borough of Wyomissing and Police
Chief Jeffrey Biehl's Motion for Summary Judgment
is DISMISSED as moot;
2) Defendant Police Officer Phillips' Motion for
Summary Judgment is DENIED;
3) Defendant IPC International Corporation's Motion
for Summary Judgment as to Counts I and IV of
Plaintiff's complaint is DISMISSED as moot;
4) Defendant IPC International Corporation's Motion
for Summary Judgment as to Counts II, III and V is
5) All crossclaims brought by and against IPC
International Corporation are DISMISSED.
AND NOW, this 12th day of February, judgment is hereby entered in favor
of Defendant IPC International Corporation and against Plaintiff Walter
E. Thomas, Jr.
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