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Iwanejko v. Cohen & Grigsby

September 15, 2006


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Before the Court for consideration and disposition is DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT, with brief in support (Document Nos. 122 & 123), filed on behalf of the City of Pittsburgh and Pittsburgh Police Officers James L. Aker, Donald Savko and Joseph Nicholas and the MOTION FOR SUMMARY JUDGMENT, with brief in support and reply brief (Document Nos. 117, 118, 145), filed on behalf of Cohen & Grigsby, P.C. ("C & G"). In response thereto, plaintiffs Gerald J. Iwanejko, Jr., ("Iwanejko") Gerald J. Iwanejko, Sr. ("Mr. Iwanejko") and Patricia Iwanejko ("Ms. Iwanejko," and collectively "the Iwanejkos") have filed PLAINTIFFS' OPPOSITION TO JOINT MOTION FOR SUMMARY JUDGMENT OF PITTSBURGH POLICE DEFENDANTS (Document No. 144) and PLAINTIFFS' OPPOSITION TO DEFENDANT COHEN & GRIGSBY, P.C. MOTION FOR SUMMARY JUDGMENT (Document No. 143). The issues have been fully briefed by the parties, and the matter is ripe for disposition.


The procedural history of this case has been set forth in previous memorandum opinions and will not be recited herein. See Document Nos. 62, 63 & 80. Except as otherwise noted, the following facts are not disputed.*fn1

On Monday, December 3, 2001, Iwanejko, an associate attorney at Cohen & Grigsby ("C & G"), arrived at the office before 8:00 a.m. to complete an assignment that was due early that day. Motion at ¶¶ 12-13. However, due in part to various stressors in his life, Iwanejko erroneously believed that it was Sunday, December 2, 2001 and that he had a whole day to complete the task. Id. at ¶ 14; see also Iwanejko Deposition at 83-88. When other employees started to arrive, Iwanejko realized that it was Monday morning and that he did not have a whole day to complete the task. Motion at ¶ 14. Apparently due to this realization, Iwanejko had an acute psychotic episode. Id. He began shouting and using profanities. Id.; see also Iwanejko dep. at 130-31 ("I starting yelling, ranting, raving saying nonsensical things, swearing.");

Finding Iwanejko's conduct to be inappropriate, Fredrick L. Tolhurst ("Tolhurst"), another attorney at C & G, went to Iwanejko's office and requested that he stop yelling and swearing. Id. at ¶ 15. When Tolhurst confronted Iwanejko about his behavior, Iwanejko pushed Tolhurst out of the way and left his office for a few moments. Id. at ¶ 16; see also Iwanejko Deposition, p. 135-37, 356. Tolhurst and Iwanejko then returned to their respective offices. Motion at ¶ 17. After a short hiatus in Iwanejko's behavior, he began shouting again. Id. Tolhurst returned to Iwanejko's office in an attempt to quiet him. Id.

At this point, Iwanejko was ranting and raving about his father. Motion at ¶ 18. Tolhurst's affidavit states that Iwanejko was holding a bottle of contact lens solution and speaking as if the solution had some sort of medicinal or healing powers. Id.*fn2 At this time, Tolhurst realized that Iwanejko was not thinking or speaking coherently. Id. Iwanejko, still holding the bottle of contact lens solution, then left his office and stated that he was going to meet his father at the parking garage. Id. at ¶ 19. Tolhurst requested that Iwanejko stay in his office, but he refused. Id. Out of concern for Iwanejko's safety, Tolhurst followed Iwanejko as he went to the elevators. Id. at ¶ 20. Tolhurst also asked a secretary to contact Tom Wettach ("Wettach"), Iwanejko's supervisor and mentor, as Tolhurst believed that Wettach might be able to reason with him. Id.

Iwanejko proceeded down the elevators to the parking garage of the Westinghouse Building. Id. at ¶ 21. The Westinghouse Building garage has four floors; each has a descriptive identifying letter, specifically A through D, from top to bottom, respectively. Id. Iwanejko exited the elevators on the top floor of the garage, the "A" level. Id. Throughout this time, Iwanejko's behavior was erratic, varying from periods of screaming and yelling profanities to periods of calm behavior. Id.

Upon arriving at the parking garage, Iwanejko's father was not present. Id. at ¶ 22. However, at this time, a car traveled up the inside ramp of the garage from the lower "B" level. The driver of the car, later identified as Linda Kelley, parked and exited her car. Id.

At this point in the story the facts become disputed. According to Kelley, Iwanejko suddenly screamed something incoherent, threw the bottle of contact lens solution in her direction, and abruptly rushed over to and assaulted her. See id. at ¶¶ 23-24. Tolhurst's recollection of the incident is essentially the same, except that Tolhurst's affidavit reflects that that Iwanejko rushed toward Kelley, placed his arms around her and attempted to kiss her. Tolhurst affidavit at ¶ 19. According to both Tolhurst and Kelley, Tolhurst then rushed over and pulled Iwanejko off Kelley. See id. at ¶ 25. Iwanejko supposedly screamed incoherently while being held by Tolhurst. See id.

Iwanejko, on the other hand, disputes both Tolhurst's and Kelley's version of what happened. At his deposition Iwanejko testified that he did in fact encounter Kelley in the parking garage, but that he never assaulted, tried to kiss or otherwise accosted her. Iwanejko also testified that he did not come within ten (10) feet of Kelley, although he conceded that he may have yelled or said something inappropriate to her. Iwanejko's deposition at 152; see also Iwanejko deposition at 143 ("All I remember is that she was apparently startled at my behavior.").

At some point, Tolhurst suggested that someone call security and that the police be alerted. Motion at ¶ 28. Iwanejko followed or was escorted by a parking garage employee down to the "B" level. Id. at ¶ 30; Iwanejko deposition at 144. Tolhurst followed Iwanejko. Motion at ¶ 30. During this time, Iwanejko continued to go in and out of screaming bouts. Id.

Tolhurst's affidavit reflects that upon reaching the "B" level, Iwanejko ran to the garage's entryway, laid down in the path of incoming vehicles, and was ranting and raving. Id. at ¶ 31.The affidavit also reflects that Tolhurst and another man pulled Iwanejko out of the path of traffic and let him lay on the concrete, where he continued to babble incoherently. Id. at ¶ 32. Iwanejko testified, however, that when he reached the "B" level he was surrounded by five (5) police officers. Iwanejko deposition at 144. Iwanejko strongly contends that he never laid down in the path of oncoming vehicles and yelled for drivers to run over him. Iwanejko deposition at 150-151.

Pittsburgh Police Officer James L. Aker ("Officer Aker") was dispatched to respond to the incident, which was then described as "women attacked in parking garage." Motion at ¶ 33. Officer Joseph Nicholas ("Officer Nicholas"), proceeding as backup, arrived first at the scene as he was patrolling nearby in downtown Pittsburgh. Id. at ¶ 34. Officer Nicholas supposedly observed Iwanejko laying on the concrete. Id. According to the Officers, Iwanejko was unresponsive to Officer Nicholas and merely laid on the ground with his eyes closed. Id. Around this time, Tolhurst informed Officer Nicholas about Iwanejko's alleged behavior, including the alleged assault of Kelley. Id. at ¶ 35.

The Officers contend that after a few minutes had passed, Officer Nicholas and Iwanejko's co-workers, who were then gathered at the scene, talked Iwanejko into getting up. Id. at 134. According to their version of the facts, another incident prompted Officer Nicholas to request the presence of additional officers, and Iwanejko ended up standing and facing a wall. Id. He supposedly became very agitated and was ranting, mumbling and crying. Id. at 134. Officer Nicolas, afraid that Iwanejko was a danger to himself and others, supposedly handcuffed Iwanejko at this time. Id. at 135. Iwanejko then began banging his head off the wall; Officer Nicholas quickly pulled him away from the wall to prevent Iwanejko from injuring himself. Id. Iwanejko testified that his recollection of what happened at this point is not totally clear because "things were happening pretty quickly." Iwanejko deposiiton at 147. However, at his deposition he did not testify to banging his head off of the wall. See id. at 146-50.

When Officer Aker arrived on the scene, it appeared that Officer Nicholas had control of the situation. Motion at ¶ 37. Officer Nicholas told Officer Aker that the victim was upstairs and needed to be questioned. Id. Officer Aker left the garage to get a statement from Kelley. Id. Kelley told Officer Aker her version of the incident. Id. at ¶ 38. Kelley informed Officer Aker that she did not want to press charges against Iwanejko, rather she wanted him to get help at Western Psychiatric Institute and Clinic ("Western Psych") as she feared he was a danger to himself and others. Id.

The Officers contend that they determined that Iwanejko was a danger to himself and others and was in need of psychiatric evaluation. Iwanejko contends, generally speaking, that the Officers fabricated and/or lied about what happened, and that he should not have been involuntarily committed because he did not meet the legal criteria for same. Iwanejko's Deposition at 183. However, in Iwanejko's own words, he was "absolutely acting crazy, no question" and does not dispute he was severely mentally disabled that day. See id, p. 174, 175, 183 ("I was crazy.").

The Officers placed Iwanejko in the back seat of the police car. They contend that while Iwanejko was still sitting in the police vehicle, he became disturbed and began to thrash about. Motion at ¶ 40. According to the Officers, Iwanejko got out of his safety belt, spun around in his seat, attempted to kick the windows out of the car, pounded his head against the partition in the car and made incoherent biblical references. Id. Iwanejko, on the other hand, testified at his deposition that he merely moved around to see what was happening, and that he never attempted to kick the windows out of the police car. Iwanejko deposition at 155-56.

Officer Nicholas and Officer Donald Savko ("Officer Savko") transported Iwanejko to Western Psych. Motion at ¶ 41. After the police cruiser departed to take Iwanejko to Western Psych, Tolhurst spoke with Officer Aker and told the Officer all of the facts within his knowledge up to that point in time. Id. at ¶ 42.

The Officers contend that "[o]n the way to Western Psychiatric, Iwanejko continued to pound his head against the windows of the car and made biblical references concerning 'washing Jesus' feet.'" Id. at ¶ 43. Iwanejko contends that he was "shifting positions" while riding in the police car and "trying to look out the window," but was not trying to put his head through the window. Iwanejko's Deposition at 169.

Upon arrival at Western Psych, Iwanejko acted aggressively, which he contends was due to drugs which were administered intravenously. See Motion at ¶ 44; Iwanejko's Deposition, p. 174-77, 181. Indeed, due to his conduct Iwanejko had to be strapped to a gurney and shackled to a stretcher by hospital employees. Motion at ¶ 44. Additionally, without provocation, Iwanejko attempted to grab a nurse in an inappropriate manner. See Iwanejko's Deposition, p. 176-77.

Officer Aker filled out an Application for Involuntary Emergency Examination and Treatment based on what he witnessed and information he received from other witnesses. Motion at ¶ 47. Officer Aker then left Iwanejko at Western Psych and had no further involvement in the matter. Id. at ¶ 48.

Iwanejko was examined by two physicians at Western Psychiatric; both determined that he was severely mentally disabled and in need of treatment. Id. at ¶ 45. Additionally, upon reviewing the records provided by Western Psych, three additional physicians, Dr. Cameron Carter, Dr. Timothy Mitzel and Dr. Lawson Bernstein, each concluded that Iwanejko had an acute psychotic episode and was in need of medical care. Id. at ¶ 46. Furthermore, Dr. Bernstein described Iwanejko's episode as a florid psychotic episode, which means that a person is overtly and in a readily recognizable fashion agitated, delusional, and presenting in such a way that even a layperson could tell he was psychotic. Id.

Iwanejko stayed at Western Psych for approximately a week. He was offered FMLA leave while he recovered. C & G hired a physician, Lawson Bernstein, M.D., a psychiatrist, to advise the firm on plaintiff's ability to return to work. Plaintiff agreed to meet with Dr. Bernstein and signed waivers allowing review of his medical records by Dr. Bernstein. Plaintiff also instructed his treating physician to cooperate with Dr. Bernstein.

Dr. Bernstein diagnosed a bipolar disorder and was concerned with relieving the stress and abnormal sleep/wake cycle that contributed to the December 3, 2001 incident. Plaintiff eventually returned to work at C & G, albeit under the limitations set forth in a detailed "return to work" agreement drafted with Dr. Bernstein's input. Pursuant to the terms of the agreement, Plaintiff agreed to limit his work to 30 hours per week, and to only be in the office on weekdays from 8:00 am through 6:00 pm. Iwanejko's return to work was uneventful. He received his same salary, benefits, office, secretary, title and practice area. In October 2002, C & G agreed to expand Plaintiff's work hours to 40 per week.

In March 2003, Allan Tedesco noticed Plaintiff in the office later than 6 pm, in violation of the terms of the "return to work" agreement. C & G, upon investigation, found 87 such violations. When Tedesco confronted Plaintiff, he stated that he had left late only a handful of times. In April 2003, Iwanejko requested, for the first time, a home computer. Iwanejko's employment with C & G was eventually terminated, purportedly for breach of the "return to work" agreement and the misrepresentation to Tedesco regarding the number of prior of breaches. Thereafter, he filed this lawsuit.

At this point the only claim against the City of Pittsburgh (the "City") is for alleged civil rights violations under 42 U.S.C. § 1983. The only claims against Officers Aker, Savko and Nicholas in their individual capacities*fn3 are for alleged civil rights violations under 42 U.S.C. § 1983 (Count I); False Arrest and Imprisonment (Count II); Gross and Willful Negligence (Count III - Officer Aker only); Intentional Infliction of Emotional Distress (Count XIII); and Negligent Infliction of Emotional Distress (Count XIV).*fn4 The City and the Officers have moved for summary judgment on all remaining claims.

The three remaining claims against C & G are based on (1) negligence per se, for violation of the Pennsylvania Mental Health Procedures Act (MHPA), (2) the Family Medical Leave Act (FMLA) and (3) the Americans With Disabilities Act (ADA) and Pennsylvania Human ...

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