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Burella v. City of Philadelphia

September 30, 2009

JILL BURELLA, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF BETH ANN BURELLA, DANIELLE BURELLA AND NICHOLAS BURELLA, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

Plaintiff Jill Burella*fn1 brings this action against Defendants City of Philadelphia ("City"); police officers Robert Reamer, Charles Bloom, and Francis Gramlich ("Individual Defendants"); and police officers John Doe I through IV,*fn2 alleging violations of the Fourteenth Amendment of the United States Constitution and state law arising from the January 12, 1999 shooting of Plaintiff by her deceased husband, George Burella ("Decedent"). Now before the Court is the Motion for Summary Judgment by the City and Individual Defendants.*fn3 For the reasons set forth below, this Motion will be granted in part and denied in part.

I. F ACTUAL B ACKGROUND

This case arises from the events of January 12, 1999, when Decedent shot and seriously injured Plaintiff and then shot and killed himself. At the time of the shooting, Decedent was a ten-year veteran of the City Police Department, and he and Plaintiff had three young children, an eleven-year-old daughter, Beth Ann, and six-year-old twins, Nicholas and Danielle, on whose behalf Guardian brings claims.

Decedent had emotionally and physically abused Plaintiff for years prior to the shooting. The abuse began in 1996. Decedent gambled heavily and compulsively spent money at that time. Decedent began to physically abuse Plaintiff - pushing her down, throwing her across the room, sitting on top of her and putting guns to her head. Then, in February of 1996, Decedent was convicted of disorderly conduct for stalking Plaintiff at her workplace and assaulting her male co-worker whom he suspected was having an affair with her. One month later, in the face of marital troubles and a severe gambling problem, Decedent attempted suicide by overdosing on Tylenol tablets. He survived and was admitted to a psychiatric hospital where he was diagnosed with depression after admitting to fighting with and pushing Plaintiff, as well as having minor gambling problems.

While Decedent was in the hospital, he was visited by Michael Conly, a representative of the City Police Department's Employee Assistance Program ("EAP"), a program designed to assist officers in obtaining help with personal problems. EAP notified the City Medical Department, which placed Decedent on restricted duty and referred him to City doctors for psychological treatment. The doctors eventually cleared him to return to full active duty in August 1996, provided he be evaluated every four months for a period of one year. Decedent was not re-evaluated, although according to the City's Medical Director, if a patient does not keep such a follow-up appointment, "normally personnel... would contact the police officer to do so."*fn4 There is no indication that Decedent received such a reminder.

Decedent's violence towards his wife continued over the next several years and escalated in 1998. On March 27, 1998, Plaintiff was visiting a friend when Decedent came to the house of her friend dressed in full police uniform, banged on the door and tried to knock it down, all the while shouting and cursing. The Lower Moreland Township Police were called. Decedent insisted that Plaintiff leave with him, so Plaintiff left her friend's home before the Lower Moreland Township Police arrived.

In early June 1998, Plaintiff contacted the City Police Department's Internal Affairs Division to report the abuse. Afterwards, Decedent contacted and reported to EAP on June 15, 1998. He admitted to striking Plaintiff and was referred to a financial counselor, the legal aid committee as well as a support group to help with his pre-existing gambling problem.

Later that month, on June 26, 1998, Decedent assaulted Plaintiff and another man at a local bar. Witnesses called 9-1-1, but Decedent left the bar before police officers arrived. When he got home, he phoned Plaintiff and threatened to shoot their son Nicholas if she did not immediately return to the house. After calling 9-1-1, Plaintiff rushed home, where her husband, who was armed with a gun, threatened to shoot her. Before the matter worsened, City police officers arrived. Decedent initially refused the officers' order to surrender, but did so after the officer in charge agreed to report the incident as a domestic disturbance, rather than a more serious offense. Defendant Reamer was one of the officers who arrived at the scene.

After the police officers left, Decedent began beating Plaintiff on their front lawn. Her parents arrived and took her to their house, but Decedent followed them there. Once at her parents' house, Plaintiff tried to call 9-1-1, but Decedent wrestled the phone from her and told the operator that he was a police officer and that everything was under control. As a result, the operator did not instruct police to respond to the situation. Three days later, Plaintiff contacted EAP to report the incident, but EAP failed to notify Internal Affairs and the incident was never investigated.

On July 13, 1998, Decedent called Plaintiff at her place of work in Upper Southampton Township and threatened to kill her. Upper Southampton police officers were called and arrived in time to witness Plaintiff receiving several more threatening phone calls from her husband. The officers called Defendant Bloom, Decedent's commanding officer, to inform him of the incident.

Defendant Bloom became directly involved in the situation on August 13, 1998, when Northampton police officers arrested Decedent for assaulting Plaintiff in Bucks County. The officers released Decedent into the custody of Defendant Bloom, who escorted him home. Three days later, on August 16, Decedent called Plaintiff while she was visiting his parents with the children and again threatened to kill her. When he went to his parents' house, Northampton police officers responding to an emergency call escorted him to his car, unloaded his firearm and placed it in the trunk of the car. Shortly thereafter, officers found him driving in the vicinity of the house with his gun re-loaded and placed on the backseat of his car. Officers took him to a local hospital, but he was released shortly thereafter when his family declined to have him committed for fear that he would lose his job. After being notified of the incident, Defendant Bloom ordered Decedent to submit to a psychiatric evaluation.

Later that month, on August 20, 1998, Decedent admitted himself to a psychiatric hospital. He left on August 24, 1998, after four days of treatment, only to return later that day. He was discharged on August 25, 1998 with a diagnosis of explosive personality disorder and a guarded prognosis. Several days later, City psychologists examined Decedent and concluded that he should be monitored for the next two years. After one follow-up appointment with City doctors in September 1998, Decedent was returned to full active duty but did not return for another evaluation or treatment.

On December 24, 1998, Decedent again assaulted Plaintiff, this time while she was visiting a friend. When City police officers arrived, they allowed him to leave with the couple's youngest daughter. They then took Plaintiff and her two other children home, and left. Decedent then resumed beating her in their home.

Over the course of the next few weeks, Plaintiff obtained three protection from abuse orders ("PFAs") relevant to this lawsuit. On January 2, 1999, she obtained an emergency ex parte PFA from the Philadelphia Court of Common Pleas that prohibited her husband from "abusing, harassing, stalking and/or threatening" her, and from "living at, entering, attempting to enter or visiting" the couple's home.*fn5 The order further provided that officers "shall... arrest the defendant if he/she fails to comply with this Order."*fn6 The next day, Defendant Reamer served the order on Decedent, who, according to Plaintiff, immediately violated it by shouting at and threatening her. Despite witnessing the alleged violation, Defendant Reamer permitted Decedent to enter the couple's house. The Burella children were present during the events of January 3, 1999.

On January 4, 1999, Plaintiff obtained another temporary PFA, which essentially repeated the terms set forth in the January 2 order.*fn7 In addition, the court awarded her temporary custody of the couple's three children, prohibited Decedent from having "any contact" with her, and ordered him to relinquish all guns other than his service weapon, which he was required to turn over to his commanding officer at the end of every shift.*fn8 The order also stated that "[t]his Order shall be enforced by any law enforcement agency in a county where a violation of this Order occurs."*fn9

Later that day, Plaintiff called 9-1-1 after receiving threatening phone calls from Decedent. After officers arrived, and while in their presence, she received several more calls from her husband. The officers told her they could not do anything unless her husband was physically present. When Plaintiff called the police the next day, again they told her that nothing could be done unless her husband was physically present at her house. The Burella children were also present during the events of January 4, 1999.

On January 8, 1999, Plaintiff obtained a final PFA.*fn10 Four days later, following an appointment with a psychiatrist at the City Medical Department, Decedent went to the house he formerly shared with his wife and shot her in the chest. He then immediately shot and killed himself. Although she suffered serious injuries, Plaintiff survived the shooting. The Burella children were not present at the time of the shooting.

II. P ROCEDURAL H ISTORY

In February 2000, Plaintiff filed a complaint in Pennsylvania state court.*fn11 After the case was removed to federal court, she filed an eight-count amended complaint asserting the following claims: Count I, a § 1983 claim against Individual Defendants and John Does for due process violations under the Fourteenth Amendment; Count II, a § 1983 claim against the City for due process violations under the Fourteenth Amendment; Count III, a § 1983 claim against Individual Defendants and John Does for equal protection violations under the Fourteenth Amendment; Count IV, a § 1983 claim against the City for equal protection violations under the Fourteenth Amendment; Count V, a claim against Individual Defendants and John Does for equal protection violations under the Pennsylvania Constitution; Count VI, state tort claims against Individual Defendants and John Does; Count VII a state law claim for intentional and negligent infliction of emotional distress against the Individual Defendants and John Does; and Count VIII, a negligence claim against Defendant Zalut.*fn12

The City and Individual Defendants moved for summary judgment on all counts asserted against them.*fn13 On December 17, 2003, the court granted their motion in part as to Defendant Bloom on Count I and all claims of negligence or negligent infliction of emotional distress in Count VII, but denied it on all other counts.*fn14 Individual Defendants filed an interlocutory appeal with ...


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