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Marvel v. Delaware County

June 2, 2009


The opinion of the court was delivered by: Buckwalter S.J.


Currently pending before the Court is the Motion for Summary Judgment filed by Defendants Delaware County, Walter R. Omlor, Jr., and Paul M. Micun (collectively "Defendants"). For the following reasons, the Motion is granted.


Plaintiff's decedent, David Marvel, was arrested, on May 10, 2006, by Ridley Park Police in Delaware County, and charged with DUI and other related offenses. (Defs.' Mot. Summ. J., Ex. 1.) In connection with this arrest, Marvel hired Eugene A. Bonner, Esquire to represent him. (Defs.' Mot. Summ. J., Ex. 2, Eugene Bonner Dep. ("Bonner Dep."), 10:14-25, Nov. 4, 2008.) Upon consultation with Bonner, Marvel opted to apply for Delaware County's Accelerated Rehabilitative Disposition ("ARD") program, which is an alternative sentencing program available, on a purely voluntary basis, to first-time offenders. (Id. at 33:20-36:7; Defs.' Mot. Summ. J., Ex. 3, Walter Omlor, Jr. Dep. ("Omlor Dep."), 159:12-160:5, Oct. 1, 2008.) The program allows a participant to have his or her record expunged, avoiding a criminal conviction. (Id. at 159:17-160:5.) The "fast track" portion of the ARD program occurs prior to the preliminary hearing and formal acceptance into the ARD program. Fast track allows applicants to reduce both the suspension of their license and their community service hours by completing their obligations within a set period of time. (Bonner Dep. 35:10-18; Omlor Dep. 159:19-160:5; Defs.' Mot. Summ. J., Ex. 5, Kathleen Supplee Dep. ("Supplee Dep."), 17:12-24, Jan. 14, 2009.) Bonner explained to Marvel that his community service would involve some sort of manual labor, usually like trash pick-up or raking leaves in the park. (Bonner Dep. 33:25-34:9.) Marvel did not express any concerns to Bonner regarding his ability to do community service work, nor did Bonner feel that it was his duty to inquire into Marvel's health problems. (Id. at 18:26-19:5, 34:21-35:9.)

At the time of his arrest, Marvel was fifty-nine years old. (Defs.' Mot. Summ. J., Ex. 1.) For multiple years prior, Marvel had been treated for high blood pressure by his family physician, Dr. Woodrow Kessler. (Defs.' Mot. Summ. J., Ex. 6, Woodrow Kessler, M.D. Dep. ("Dr. Kessler Dep."), 11:4-13, Dec. 18, 2008.) During the summer of 2006, Marvel was taking cardiac medication for his blood pressure, cholesterol medication, and a daily aspirin, but, according to his wife, Grace, he never had any problems with his heart. (Id. at 20:2-14, 77:3-18; Pl's Opp. Mot. Summ. J., Ex. E, Grace Marvel Aff. ("G. Marvel Aff.") ¶ 5.) Dr. Kessler noted that Marvel had previously expressed concern about the fact that his father died from a heart attack at age fifty-six, and that his two brothers developed coronary artery disease in their late fifties, one of whom died. (Dr. Kessler Dep. 55:22-57:24.) Dr. Kessler also had a report from Marvel's prior physician referencing a previous myocardial infarction. (Id. at 28:7-30:14.) Both Grace Marvel stated and Plaintiff's expert cardiologist opined, however, that Marvel had never had a myocardial infarction prior to performing community service. (G. Marvel Aff. ¶ 6; Pl's. Opp. Mot. Summ. J., Ex. I.) Although Dr. Kessler had previously recommended an EKG to verify the prior doctor's report, Marvel never went for the test. (Dr. Kessler Dep. 31:11-37:5.)

Defendant Walter R. Omlor, Jr. has been the director of the Delaware County Court-ordered Community Service Department since 1992. (Omlor Dep. 16:7-17:9.) Omlor makes the decisions as to when community service operates and, as part of his job, checks the weather daily to make arrangements for alternative work on days with extreme weather conditions. (Id. at 27:6-28:12.) He testified that all community service workers are advised that they are going to be doing manual labor, but that participation in the ARD program is totally voluntary. (Id. at 159:7-16.) Further, as explained by Omlor's administrative assistant, Kathleen Supplee, an individual in the Fast Track ARD program selects his or her own dates of service, but must have it done within sixty days of their administrative hearing. (Supplee Dep. 38:4-18.) If an applicant were to advise the office that he had a medical concern, the office would have him bring in medical documentation of his restrictions.*fn2 (Id. at 37:4-38:3.) Although all Fast Track applicants must initially report to the Emergency Training Center, an applicant who does not wish to do construction work may be given another assignment. (Id. at 39:10-19.) Moreover, if a Fast Track applicant falls ill on the date of their community service work or advises the supervisor that, due to illness or weather, they want to reschedule their service time, they are allowed to do so without penalty. (Id. at 40:4-42:14.) Only where someone does not show up or just decides, of their own volition, to leave their community service work, is there a penalty of additional time imposed.*fn3 (Id. at 41:21-42:14.)

In late July 2006, Marvel telephoned Omlor to schedule his community service work. (Omlor Dep. 53:9-54:7.) Marvel indicated to Omlor that he was a crane-operator, but did not give details about his job. (Id. at 59:6-18.) According to Plaintiff Grace Marvel, her husband had been employed for eighteen years at Mittal Steel in Conshohocken, Pennsylvania, where he operated an air-conditioned crane and performed no outside work. (G. Marvel Aff. ¶ 4.) Omlor did not ask about Plaintiff's physical abilities, and Marvel did not reveal that he had heart disease or any other major medical condition. (Omlor Dep. 162:17-163:4.) According to Omlor, had Marvel told him about some type of condition, he would have told Marvel to get a doctor's note and come into the office. (Id. at 163:5-11.)

Marvel opted to perform his community service on July 31, 2006, and August 1, 2006,*fn4 and Omlor told him to report promptly at 7:30 in the morning, drug and alcohol free, dressed for the weather, wearing work gloves, and prepared to "do labor." (Omlor Dep. 54:1-56:7.) Marvel arrived, as directed, to the Emergency Training Center on July 31, 2006, for his first day of community service work. (Compl. ¶ 12.) The weather that day was extremely hot and, in fact, the National Weather Service had issued an Excessive Heat Warning for Delaware County from July 31, 2006 to August 3, 2006. (Pl.'s Opp. Mot. Summ. J., Ex. J. 3.) For both July 31, 2006 and August 1, 2006, the heat index values reached up to 110, and there were numerous heat-related illnesses and deaths in the surrounding area.*fn5 (Id.)

Upon arrival, Marvel spoke to Defendant Paul Micun, who had been the community service supervisor since 2004. (Micun Dep. 14:11-19, 44:5-14.) According to Micun, after all of the community service workers signed in, he asked if anybody had any construction experience since there were union bricklayers that could use some help. (Id. at 44:18-45:3.) When he asked for volunteers, four gentlemen came forward, including Marvel, who indicated that he worked on a crane in Philadelphia. (Id. at 45:3-11.) The other volunteers were Edmund Oponski, Aaron Keenen, and a third unidentified individual. (PSUF ¶ 40.) According to Micun, Marvel volunteered to do the construction work because "[h]e said he had construction experience and he would be more than happy to stay on site instead of going out picking up trash or going someplace else." (Micun Dep. 54:20-55:5.) Had Marvel, as a Fast Track applicant, decided not to volunteer for the construction work, he would have been assigned to one of the vans of the regular crew supervisors. (Supplee Dep. 39:10-19.) There were multiple sites for community service work in Delaware County, most of it being outdoor work, but some of it being indoor work. (Omlor Dep. 63:13-24.)

In connection with his chosen assignment, Marvel spent his day passing cinder blocks from a palette on scaffolding that was twenty feet high to the union workers who were laying the blocks. (Micun Dep. 45:20-46:10.) Although Plaintiff argues that Marvel worked all day in direct sunlight, the evidence reflects otherwise. Edmund Oponski, one of the other community service workers, testified that there was a roof over the structure in which they were working, but, as the structure was unfinished, there was a hole in the room through which some sun was coming down on the workers. (Defs.' Mot. Summ. J., Ex. 7, Edmund Oponski Dep. ("Oponski Dep."), 31:3-12, Sep. 10, 2008.) He estimated that approximately one-third of the work they performed was done in direct sunlight. (Id. at 80:16-19.) Michael Patrick Tuttle, one of the union employees at the site, estimated that most, if not all of the work performed by both the union employees and the community service workers was done in the shade. (Defs.' Mot. Summ. J., Ex. 8, Michael Patrick Tuttle Dep. ("Tuttle Dep."), 12:18-13:10, Jan. 14, 2009.) Finally, although Micun agreed that there was direct sunlight coming through the hole in the roof, he noted that it was "[v]ery limited" and that Marvel's work in the direct sunlight was on and off throughout the day. (Micun Dep. 57:14-23, 78:24-79:3.) Micun also admitted, however, that he never considered putting a tarp over the hole in the roof to avoid any work being done in the direct sunlight. (Id. at 57:2-18.) The workers were provided with a five-gallon jug filled with ice water, which was sufficient to last through the day. (Id. at 57:24-59:3; Oponski Dep. 33:13-34:3.) Further, the workers had several breaks during the day, as needed. (Oponski Dep. 79:6-22.)

Marvel finished his community service work on July 31, 2006, without incident, at approximately 3:30 in the afternoon. (Micun Dep. 48:21-49:1.) Micun testified that Marvel did "fine" during the course of that work day. (Id. at 45:15-17.) That night, Marvel told his wife that his shoulders were very sore and he was exhausted, and complained that he had to wear a scarf over his face from all the dust. (Defs.' Mot. Summ. J., Ex. 9, Grace Marvel Dep. ("G. Marvel Dep."), 16:8-17, Oct. 28, 2008.) He did not, however, express any concerns about returning the next day to do the same work. (Id. at 16:18-17:9.)

The following day, Marvel reported for community service wearing a short sleeve, button-down shirt and blue jeans. (Micun Dep. 49:11-24.) Again, he volunteered to do the same work he did the day before. (Id. at 50:1-4.) During the course of the morning, Marvel did not make any remarks to Oponski about not feeling well and did not look pale. (Oponski Dep. 81:21-82:4.) Approximately three hours into the work day, however, Oponski noticed that Marvel did not want any water, was not looking good, and seemed somewhat flushed. (Id. at 78:1-8, 79:1-5.) Around 10:45 a.m., Micun claims to have told all of the community service workers to come down and take a break since he had just brought fresh water. (Micun Dep. 71:3-73:4.) Oponski, on the other hand, said that he was the one who told Marvel to take a break. (Oponski Dep. 35:11-24.) Within fifteen to twenty seconds thereafter, someone yelled, "a man down." (Micun Dep. 73:2-74:22.) Oponski saw Marvel fall and hit his head. (Oponski Dep. 82:4-22.) Tuttle also saw Marvel, who was leaning on the pole next to the water cooler, just collapse. (Tuttle Dep. 11:10-25.)

Upon Marvel's collapse, Micun ran to Marvel immediately and found him lying on his right side with some blood on his forehead.*fn6 (Micun Dep. 74:23-75:20; Tuttle Dep. 13:22-14:6; Oponski Dep. 37:23-38:11.) He was soaking with sweat and semiconscious. (Oponski Dep. 37:11-20.) Micun began performing CPR in an attempt to revive him and asked some of the other men to wipe Marvel's chest. (Micun Dep. 77:1-12; Tuttle Dep. 13:22-14:6.) Oponski immediately called his wife, Nicola Vesty, who was a telemetry nurse, and Micun started unbuttoning Marvel's shirt and checking his vitals.*fn7 (Oponski Dep. 38:23-39:5.) Per Ms. Vesty's instructions, the other men began putting ice under his armpits and an ice water-soaked shirt around his neck. (Id. at 39:6-24.) Micun called George Morgan, who was in the office, and told him to call 911. (Micun Dep. 79:17-80:8.) As Marvel's pulse started fading, Micun called Morgan again and told him to notify the EMT's that CPR was in progress, which, according to Micun, signified that Marvel was in cardiac arrest. (Id. at 84:12-86:2.) After four to five cycles of CPR and approximately five to ten minutes after Marvel collapsed, both the Darby Township police and the paramedics arrived separately. (Id. at 88:3-90:18; Tuttle Dep. 14:7-11.) The paramedics put an air tube down his throat and hooked him to a heart monitor. (Micun Dep. 90:12-91:21.) When they put him on the stretcher to take him to Mercy Fitzgerald Hospital, he still had a heartbeat and was breathing. (Id. at 93:1-18.)

After Marvel was taken by the paramedics, the other community service workers were visibly upset. (Id. at 94:9-18.) Micun told them to take a long lunch and come back.*fn8 (Id. at 94:18-95:11; Oponski Dep. 43:2-16.) Micun returned to the office sweating and told Morgan that he could still "taste the blood" from Marvel. (Def.'s Mot. Summ. J., Ex. 11, George Morgan Deposition ("Morgan Dep."), 69:12-70:3, Oct. 21, 2008.) During the lunch break, and within fifteen minutes of the ambulance leaving, Oponski heard from his wife again and she told him that Marvel had been declared dead on arrival at the hospital. (Oponski Dep. 52:22-53:4.) Oponski gathered Marvel's things that were left at the site and brought them over to Micun in the office. (Id. at 53:21-24.) He informed Micun that Marvel was dead, and Micun expressed "genuine sorrow." (Id. at 54:1-17.) Oponski indicated that they were all upset and Micun agreed to allow the workers to go home.*fn9 (Id. at 54:1-17; Micun Dep. 99:13-100:20.) The paid contractors left around 12:30 or 1:00 p.m., also due to the shock of the unfortunate incident, not because of the heat. (Micun Dep. 105:4-8; Tuttle Dep. 14:12-24.)

The emergency room physician at Mercy Fitzgerald, Dr. Rosen, concluded that Marvel died from a heart attack that was not heat-related. (Defs.' Mot. Summ. J., Ex. 12.) Subsequently, the Delaware County Medical Examiner, Dr. Frederic Hellman, called Grace Marvel and indicated that he was comfortable with the treating physician's determination that the cause of death was cardiac-related and occurred with exertion. (Def.'s Mot. Summ. J., Ex. 13, Frederic Hellman Dep. ("Dr. Hellman Dep."), 35:8-16.) Originally, Mrs. Marvel turned down his offer for an autopsy, but had a change of heart the following day. (Id. at 35:16-38:4.) Upon full autopsy, Dr. Hellman found that Marvel's left anterior artery was ninety-five percent closed, and his right anterior artery was ninety percent closed. (Id. at 44:17-46:12.) The report indicated that death occurred as a consequence of "[a]rteriosclerotic coronary artery disease, with history of hypertension, associated with exertion," without any finding of heat-related causes. (Defs.' Mot. Summ. J.. Ex. 12.) As Dr. Hellman later explained, he believed Marvel's death was caused by his previously existing and very significant cardiac disease, associated with exertion. (Dr. Hellman Dep. 60:16-23.)

Walter Omlor testified that, since the death of David Marvel, neither he nor the Criminal Justice Advisory Committee has expressly enacted any new policies for working in the heat. (Omlor Dep. 129:13-24.) Nonetheless, he has talked to his supervisors and told them that they must be aware of and sensitive to the risks to community service workers doing heavy labor in extreme weather conditions. (Id. at 130:9-131:17; Defs.' Mot. Summ. J., Ex. 14, Marianne Grace Dep. ("Grace Dep."), 53:7-54:16, Sept. 17, 2008.)


Plaintiff Grace Marvel, individually and as executrix for the estate of David Marvel, initiated this civil action on November 30, 2007. In her Complaint, she raises several constitutional claims under 42 U.S.C. § 1983. Count I alleges that Defendants Omlor and Micun, acting under color of state authority, deprived Marvel of his constitutional rights under the Fourteenth Amendment, including his liberty interests in: (1) bodily safety while performing community service; (2) freedom from deprivation of life without due process of law; and (3) an expectation of minimal standards for the safety, health, well-being, and security of community service workers. (Compl. ¶¶ 39-43.) In Count II of the Complaint, Plaintiff asserts that Defendant Delaware County violated Marvel's rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments by, in part, failing to develop or implement policies or procedures regarding the medical screening of ARD applicants or community service workers; failing to abide by the excess heat warning; failing to give consideration to extreme weather conditions or a worker's age; failing to provide adequate medical assistance to Marvel; and failing to properly train, supervise, and monitor Marvel during his community service. (Id. ¶¶ 44-50.)

On December 26, 2007, Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). By way of Memorandum and Order dated April 10, 2008, this Court denied the Motion to Dismiss on the ground that, taking the allegations of the Complaint as true, Plaintiff adequately stated a claim upon which relief may be granted. Marvel v. Del. County, Civ. A. No. 07-5054, 2008 WL 1700536 (E.D. Pa. Apr. 10, 2008). Subsequently, on January 19, 2009, Defendants filed the present Motion for Summary Judgment claiming that no evidence exists to support the facts alleged in the Complaint. Plaintiff responded on February 1, 2009, Defendants filed a Reply Brief, and Plaintiff filed a Sur-reply Brief. Having considered all of the parties' briefing, together with their attached exhibits, and having listed to the parties' oral argument on May 20, 2009, the Court now turns to a discussion of the disputed issues.


Summary judgment is proper "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). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, Pa, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "There must . . . be sufficient evidence for a jury to return a verdict in favor of the non-moving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted." Arbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994), abrogated on other grounds, Showalter v. Univ. of Pitt. Med. Ctr., 190 F.3d 231 (3d Cir. 1999).


Both counts of Plaintiff's Complaint are premised on 42 U.S.C. § 1983. "Section 1983 'is not a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In order to state a cause of action under section 1983, a plaintiff must demonstrate both that (1) the defendants acted under color of state law; and (2) their actions deprived the plaintiff of rights secured by the Constitution or federal statutes. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

As the parties do not dispute that Defendants were acting under color of state law, the crucial analysis in this case focuses on the second prong of the section 1983 analysis. To prove this element, Plaintiff asserts that Defendants violated the substantive due process protections of the Fourteenth Amendment in two ways. First, she contends that all Defendants are liable for a "state-created danger." Second, she claims that, pursuant to Monell v. Dept. of Soc. Serv., 436 U.S. 658 (1978), Defendant County of Delaware developed a policy or custom that resulted in a deprivation of both her and her husband's rights. In light of Defendants' challenge to both of these contentions, the Court addresses each individually.

A. The State-Created Danger Theory (Count I)

In the Memorandum and Order dated April 10, 2008, this Court found that the allegations of the Complaint, taken as true, adequately set forth a state-created danger claim upon which relief could be granted. Marvel, 2008 WL 1700536, at *3-7. Upon review of the extensive exhibits submitted by the parties on summary judgment review, however, the Court finds that many of the facts upon which we relied to deny the Motion to Dismiss are simply not true. Given the absence of any genuine issue of material fact, Plaintiff's state-created danger claim must, as a matter of law, fail.

"Individuals have a constitutional liberty interest in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth Amendment." Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). While the Due Process Clause restricts the state's power to act, the United States Supreme Court has expressly held that the Due Process Clause does not impose an affirmative obligation on the ...

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