Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malar v. Delaware County

October 23, 2009


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


Currently pending before the Court is a Motion for Summary Judgment filed by Defendants Delaware County, and Walter R. Omlor, Jr. ("Defendants"). For the following reasons, the Motion will be GRANTED.


Plaintiff, Lawrence Malar, was arrested by the Chester Police Department, in the City of Chester, Delaware County on June 9, 2005, and charged with possession of a controlled substance.*fn1 See Def. Stat. in Supp. of Summ. J., Ex. 1. Malar retained attorney John J. Whelan to represent him in connection with his arrest. After consultation with his attorney, Malar decided to apply for admittance to Delaware County's Accelerated Rehabilitative Disposition ("ARD") program. Id. at Ex. 2.

A. Delaware County's ARD Program

Delaware County's ARD program is a pre-trial diversionary program available to non-violent, first time offenders. Application to the ARD program is voluntary; Defendants in criminal matters are under no obligation to participate in the program. Defendants, Delaware County and Walter R. Omlor, Jr., the Director of Delaware County's Community Corrections Department, administer the program. Complaint at ¶ 3. Once the Delaware County District Attorney approves the offender's participation in the ARD program, the Delaware County Court of Common Pleas holds a hearing to approve of this non-trial disposition of the criminal matter.

Defendant Omlor testified that he, as director of the ARD program, appears at all of these ARD hearings and explains to all potential ARD applicants the requirements of Delaware County's ARD program. Omlor informs the applicants that community service work primarily consists of manual labor. Omlor Aff. at ¶¶ 2-3. Omlor also informs participants that community service work is conducted in various weather conditions and that participants should dress appropriately. Omlor Aff. at ¶ 3. Record evidence also establishes there is a written notice hanging in the Community Service office, stating that community service consists of manual labor "IN ALL TYPES OF WEATHER CONDITIONS. YOU WILL PERFORM VARIED MANUAL LABOR ASSIGNMENTS." See Def.'s Stat. in Supp. of Summ. J., Ex. 6. (emphasis in original).

Thereafter, ARD participants receive written confirmation of their community service dates, and are advised in that letter that community service typically consists of manual labor, including walking, lifting, and bending. The notice also reiterates that ARD participants should dress for outside work, unless they are assigned to an alternative work detail. See Def.'s Stat. in Supp. of Summ. J., Ex. 8.

The uncontested evidence establishes that it is the policy of the Delaware County community service department to assign "light duty" to ARD participants who cannot perform manual labor. Omlor Aff. at ¶ 5. Mr. Omlor stated that persons who present valid doctor's notes in advance of their appearance for community service may be given light duty. Id.; Def.'s Stat. in Supp. of Summ. J., at ¶ 33. Mr. Omlor further stated that if a community service worker reporting for their work assignment advises that they are physically unable to perform the manual labor required, they are sent home for the day, with directions to report to the community service office in Media. See Def. Stat. in Supp. of Summ. J., at ¶ 34. Mr. Omlor further attests that "if a Defendant appears at the Emergency Training Center with a doctor's note and advises that he is ill or physically incapable of working that day as scheduled, the policy of the department is that any documentation provided by the Defendant is to be faxed to the Community Service office in Media and the Defendant is told to return home and contact the Media office to make future arrangements to complete the work." See Def.'s Stat. in Supp. of Summ. J., Ex. 6, at ¶ 9.

B. Plaintiff's Participation in the ARD Program

Malar's application for ARD was approved by the Delaware County District Attorney's Office. A hearing in the Delaware County Court of Common Pleas to seek judicial approval for Malar's admittance to the program was scheduled for February 15, 2006. Def.'s Stat. in Supp. of Summ. J., Ex. 7. On that date, however, Malar reported to the wrong courtroom. Malar Dep. at 16; Malar Aff. at ¶ 5.*fn2 By the time Malar arrived at the correct courtroom, the ARD hearings scheduled for that day had concluded, and Malar was the only ARD applicant present in the court room. Malar Dep. at 16; Malar Aff. at ¶ 7. There is some dispute as to whether Malar spoke with Attorney Whelan or an associate of Whelan's named Sandra M. Liberatori prior to his ARD hearing, but it is undisputed that Malar was represented by an attorney at his hearing. Malar Dep. at 17; Malar Aff. at ¶ 7. Malar testified that the hearing took approximately five minutes. Afterwards, attorney Whelan informed him that his application for ARD had been approved. Malar Aff. at ¶ 7. Thereafter, Malar was ordered to complete 16 hours of community service. Def.'s Stat. in Supp. of Summ. J., Ex. 7.

Malar has presented no evidence or testimony indicating that he informed the court that he had any medical conditions or physical limitations that would impact the type of community service work he could perform. Malar asserts that he discussed his physical limitations as related to his community service work with his attorney at some point on the morning of his ARD hearing. Malar Aff. at ¶¶ 7-8. There is no evidence that any such issue was brought up with the court, either by Malar or by his attorney, at the time of the ARD hearing. Indeed, it is significant to note that as a result of Malar going to the wrong courtroom on the day of his ARD hearing, he missed the ARD orientation speech given by Defendant Omlor, outlined above, at which ARD participants are informed that community service consists of manual labor, often performed outside, even in adverse weather conditions. Malar Dep. at 16; Malar Aff. at ¶7; Omlor Aff. at ¶¶ 2-3.

Thereafter, having been approved for ARD, Malar went to the Delaware County Community Service Office, where he selected the dates on which he would perform his community service. Malar selected Monday, February 27, and Tuesday, February 28, 2006, as the dates to serve his community service. Malar Dep. at 18; Malar Aff. at ¶ 7; Def.'s Stat. in Supp. of Summ. J., Ex. 8.

At some point prior to the commencement of his community service work, Malar obtained two notes from two of his treating physicians. Malar Dep. at 22-25; Malar Aff. at ¶ 8. One note, dated February 17, 2006, from Malar's orthopedic specialist, Stuart Gordon, M.D., stated that Malar should be "restricted from doing any physical activity due to bilateral knee degenerative joint disease [and] degenerative medial meniscal tears [and] lumbar arthritis."

Def.'s Stat. in Supp. of Summ. J., Ex. 10. A second note from Malar's pulmonologist, Gerald Meis, D.O., stated that Malar suffers from "severe COPD [chronic obstructive pulmonary disease] as well as exertional dyspnea and chest tightness." Id., Ex. 9. Dr. Meis further stated that Malar's "community service needs to be limited to non-strenuous activities" and that Malar's "ability to walk distances as well as physical lifting is minimal." Id.

Malar reported for his community service on the morning of February 27, 2006. Malar Dep. at 26. Upon arrival at the Delaware County Emergency Training Center, Malar presented his two doctors' notes to an unidentified man behind the desk at the Training Center. Malar Dep. at 26-27; Malar Aff. at ¶ 9. According to Malar, the desk clerk looked at the notes and informed Malar that he would fax the notes. Id. The desk clerk did not tell Malar where, or for what purpose, he intended to fax the notes, and Malar made no further inquiry regarding the doctors' notes. Id. At no point during his two days of community service did Malar make any further mention of the doctors' notes, or of his medical conditions.

Malar contends that this same desk clerk informed him that he would be working with community service supervisor Tish Ochaby. Malar Dep. at 28, Omlor Dep. at 19-20. Malar and the other community service workers were transported by van to Glenolden Park. Malar Dep. at 28. At Glenolden Park, Malar was given a broom, and was directed to sweep the streets within the park. Malar Dep. at 28-29. Malar also assisted in picking up the refuse that had been collected by the community service workers. Malar Dep. at 29. Malar stated that while performing these tasks, he experienced difficulty breathing and shortness of breath. Malar Dep. at 30-31. Malar informed Ochaby, his community service supervisor, that he was having some problems with his breathing. Malar Dep. 31-32. In response to this complaint, Ochaby told Malar to sit in the community service van and catch his breath. Id. Malar was not able to say how long he sat in the van, or how many times he returned to the van throughout the day. Id. Malar completed the workday at Glenolden Park and returned to the training center in the van with the rest of the community service workers. Id. Malar then drove himself home at the end of the workday.

The next morning, February 28, 2006, Malar again reported to the Delaware County Emergency Training Center for his second and final day of community service. Malar Dep. at 33. On this morning, Malar was told that he was assigned to the community service crew supervised by Vince Vitullo. Malar Dep. at 33-35; Omlor Dep. at 13-15. Malar testified that he did not recall who informed him that he would be working with Vitullo, but he testified that he was sure that it was not the desk clerk to whom he had given his doctors' notes the previous day. Id. Malar admitted that he did not ask this man about the doctors' notes he had previously submitted, nor did he raise the subject with Vitullo. Malar Dep. at 35. Malar testified that he did not inquire about the doctors' notes on the second morning because he "didn't feel it was necessary" since the man he had originally given the notes to "didn't care." Id.

Malar was then transported to the Yeadon Police Administration Building, where he was instructed to remove books from an office. Malar Dep. at 36. When that task was completed, Malar was instructed to remove files and other items from a closet and to sweep out the closet. Id. When work had been completed at the Yeadon Police Administration Building, the community service workers were transported to the Yeadon Swim Club. Malar Dep. at 37. At the Swim Club, Malar was instructed to pick up trash on a hill located between the Swim Club and a nearby shopping center. Id. Upon completion of this task, the community service workers were driven back toward the training center. When the van arrived at Calcon Hook Rd., the location of the training center, the workers were instructed to exit the van and walk back toward the training center, picking up trash along the way. Malar Dep. 39-40. The van, driven by Supervisor Vitullo, drove slowly behind the workers as they made their way toward the training center. Id. Malar stated that after he had walked about 100 feet, he became unable to breathe and doubled over in severe pain. Malar Dep. at 40. Malar testified that Vitullo pulled the van up next to him and told him to get in. Malar Dep. at 41. Vitullo did not say anything to him when he got into the van, and Malar did not say anything to Vitullo. Id. Malar entered the van between 3:30 and 3:45, and did no more work before the community service workday ended at 4:00. Id. At the end of the day, Malar drove himself home. Id.

Malar testified that when he returned home that evening, he had trouble breathing and felt pain in his lungs. Malar Dep. at 42. He went to bed thinking that rest might make him feel better, but he was unable to sleep. Id. At approximately 1:00 a.m. on March 1, 2006, Malar drove himself to the emergency room at Taylor Hospital, complaining of shortness of breath and pain in his back. Malar Dep. 33-34. Malar's medical records indicate that he was admitted to the hospital on March 1, 2006, due to shortness of breath, COPD exacerbation, and left lower lobe pneumonia. See Malar History and Physical, attached as Def.'s Ex. 11. Malar remained at Taylor Hospital until March 6, 2006, when he was discharged in stable condition with instructions to follow up with his pulmonologist, Dr. Meis, and his primary care physician, Dr. John Fanning. See Summary of Discharge, attached as Def.'s Ex. 11.

Malar claims that since his release from the hospital on March 6, 2006, he has continued to experience problems with his breathing, and has been prescribed an oxygen concentrator. Comp. at ¶ 18. Malar also states that subsequent to his March 2006 hospitalization, he has been diagnosed with type II diabetes. Id.


Plaintiff Lawrence Malar instituted this civil action on February 25, 2008. Plaintiff has sued the County of Delaware and Walter R. Omlor, Jr., director of Delaware County's Community Service program.*fn3 In his Complaint, he raises several constitutional claims under 42 U.S.C. § 1983. Count I alleges that Defendants Delaware County and Omlor, acting under color of state law, deprived Malar of his constitutional rights under the Fourteenth Amendment, including his liberty interests in: (1) bodily safety while performing community service; and (2) an expectation of minimal standards for the safety, health, well being and security of community service workers. Complaint at ¶ 28(a)(1)-(2). In Count II of the Complaint, Malar asserts that Defendants violated his constitutional rights under the Fourth, Fifth, Eighth, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.