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BRODLIC v. CITY OF LEBANON

September 15, 2005.

EMIRA BRODLIC, et. al., Plaintiffs,
v.
CITY OF LEBANON, et. al., Defendants.



The opinion of the court was delivered by: JOHN E. JONES, District Judge

MEMORANDUM AND ORDER

Pending before the Court is a Motion for Summary Judgment ("the Motion") (doc. 45) by the Defendants, City of Lebanon, et. al. ("Defendants") which seeks a dismissal of the First Amended Complaint (doc. 4) filed by Plaintiffs, Emira Brodlic, individually, and as the Personal Representative of the Estate of Emir Brodlic, and as the Parent and Natural Guardian of Minor Children NB, MB, HB and EB; and Eldin Brodlic, in its entirety.

Federal question jurisdiction is proper pursuant to 28 U.S.C. § 1331. For the reasons that follow, the Motion is granted in part and denied in part.

  PROCEDURAL HISTORY:

  On May 4, 2004, the Plaintiffs filed a complaint in the United States District Court for the Middle District of Pennsylvania against the City of Lebanon, Mayor Robert Anspach, Lebanon City Bureau of Police; Sergeant David Gingrich, Patrolman Matthew Shollenberger, Patrolman William Walton, Patrolman Andrew Lebo, Patrolman Frank Batencourt, Patrolwoman Bithia Rissinger ("Defendant Police Officers"); Lebanon County, Lebanon County Department of Mental Health and Mental Retardation and Kevin J. Schrum, Administrator, Philhaven Hospital, and Jeffrey A. Okamoto, M.D. On May 25, 2004, Plaintiffs filed an amended complaint as to all Defendants to which the Defendants filed an answer on July 14, 2004. On July 30, 2004 this Court entered an Order (doc. 36) dismissing Plaintiffs' claims as to the following Defendants: County of Lebanon, Lebanon County Department of Mental Health and Mental Retardation and Kevin J. Schrum, Administrator, Philhaven Hospital and Jeffery A. Okamoto, M.D.*fn1

  In Count 1 of the amended complaint, Plaintiffs allege that Defendants violated decedent Emir Brodlic's civil rights under 42 U.S.C. § 1983. In Counts 2 through 4 Plaintiffs allege Defendants violated decedent Emir Brodlic's statutory rights under: the Americans with Disabilities Act (Count 2); the Rehabilitation Act of 1973 (Count 3); and the Pennsylvania Mental Health Procedures Act (Count 4). In Counts 5 and 6 Plaintiffs assert professional negligence and respondeat superior claims against the previously dismissed Defendants. In Counts 7 and 8 Plaintiffs assert Survival and Wrongful Death Claims, respectively, against Defendants.

  On July 1, 2005 Defendants filed the instant Motion together with a Statement of Material Facts. (Rec. Doc. 46). Thereafter, on July 11, 2005, Defendants filed a brief in support of the Motion (doc. 49), and on August 8, 2005, Plaintiffs filed a brief in opposition to the Motion (doc. 58) together with their Statement of Material Facts. (Rec. Doc. 57). On August 18, 2005, Defendants filed a reply brief. (Rec. Doc. 60). Therefore, the Motion has been fully briefed and is ripe for disposition.

  STANDARD OF REVIEW:

  Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. .P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

  Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

  It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

  Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

  STATEMENT OF RELEVANT FACTS:

  The facts in this matter are largely disputed. We will, where necessary, view the facts and all inferences to be drawn therefrom in the light most favorable to the Plaintiffs in our analysis of the pending Motion.

  On the evening of May 5, 2002, the Lebanon City Police Department ("LCPD") received a call from the Brodlic's neighbor, Ms. Dana Kreiser, to request that police officers respond to the Brodlic home. Mrs. Emira Brodlic had gone to Ms. Kreiser's home, apparently to request her assistance in a developing situation at the Brodlic home. Mrs. Brodlic's husband, Mr. Emir Brodlic, who suffered from bipolar disorder, affective disorder and depression, had ceased taking his medication and was in a psychotic and delusional mental state. The Brodlics' four minor children remained in the upstairs level of the home throughout the events that occurred that evening.

  In response to Ms. Kreiser's call to the LCPD, several officers responded to the Brodlic home, including Patrolman Betancourt, Patrolman Walton, Patrolmen Shollengerger, Patrolman Lebo, Patrolwoman Rissinger and Sergeant Gingrich.*fn2 Also, Lebanon County Crisis Intervention Counselor Carol Saltzer arrived at the Brodlic home. Ms. Saltzer had prior experience with Mr. Brodlic's mental illness history. Ms. Saltzer spoke with Mrs. Brodlic and obtained Mrs. Brodlic's ...


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