The opinion of the court was delivered by: Judge Conner
This is a civil rights action filed by plaintiff Ocie L. Brummell ("Brummell") as administratrix of the estate of Malcolm Brummell ("the decedent") against the City of Harrisburg ("the City"), Chief of Police Charles Kellar ("Kellar") of the Harrisburg Bureau of Police ("the HBP"), and Officer Marc Moule ("Moule"), also of the HBP. Presently before the court are two motions (Docs. 11, 13) to dismiss certain claims, filed pursuant to Federal Rule of Civil Procedure, Rule 12(b)(6). One motion was filed jointly by the City and Kellar. (Doc. 11). The other was filed by Moule. (Doc. 13). For the reasons that follow, the court will grant the joint motion of the City and Kellar and deny Moule's motion.
I. Statement of Facts*fn1
This case arises out of an incident that occurred in the early morning hours of September 23, 2007. (Doc. 1 ¶ 9). At approximately 2 a.m., Moule was off-duty and sleeping in his apartment when he was awakened by what he believed were gun shots. (Id.) From his apartment, Moule allegedly witnessed a man being chased and beaten by another. (Id. ¶ 10). Moule grabbed his service weapon and proceeded to the street barefoot, wearing shorts and a tee-shirt, in order to stop the beating. (Id. ¶¶ 10-11, 13). Moule did not have his police badge or any insignia to indicate he was a police officer. (Id. ¶ 11). Moule witnessed a man, who he believed to be the assailant, entering the passenger side of an SUV. (Id. ¶ 13). Moule approached within seven to eight feet of the SUV, brandished his weapon and fired. (Id. ¶ 14).*fn2 Moule fired several rounds into the SUV, exhausting the ammunition in the weapon's magazine. (Doc. 1 ¶ 14). At least one of the bullets struck the decedent, who was the driver of the vehicle. (Id. ¶ 14). Moule ran back to his apartment for more ammunition, then returned to the street to find the SUV had been driven from the scene. (Id. ¶ 16). At this point, Moule dialed "911" on his cell phone and waited for police to arrive. (Id.) The decedent, who died hours later at the hospital from a gun shot wound to the head (id. ¶ 18), was not found to be in possession of a weapon, and no gun was ever found in the vehicle. (Doc. 1 ¶¶ 17, 20).
Brummell brought this suit pursuant to 42 U.S.C. § 1983 alleging Fourth Amendment excessive force and Fourteenth Amendment due process claims against the City of Harrisburg, Police Chief Kellar,*fn3 and Officer Moule,*fn4 (Doc. 1 ¶¶ 31-51), as well as pendent state law claims of negligence, wrongful death, intentional infliction of emotional distress ("IIED"), and assault and battery*fn5 against all three defendants. (Id. ¶¶ 52-73). Presently before the court are two motions to dismiss certain claims, filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. One was filed jointly by the City and Kellar (Doc. 11); the other was filed by Moule. (Doc. 13). The motions have been fully briefed and are now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a two-step inquiry. In the first step, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1950 (2009) (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, --- U.S. at ---, 129 S.Ct. at 1949. When the complaint fails to establish defendant liability, however, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Through the pleadings, the parties have disposed of all the state law claims against the City, (Doc. 19 at 7), and the Fourteenth Amendment and negligence claims against Moule. (Doc. 20 at 7). Brummell maintains Fourth Amendment excessive force claims against all defendants and Fourteenth Amendment due process claims against defendants Kellar and the City. Brummell maintains state law claims against Kellar and Moule for wrongful death, IIED, and assault and battery. Brummell also maintains a negligence claim against Kellar. Presently before the court, then, are Moule's motion (Doc. 13) to dismiss the remaining state law claims against him, and Kellar's motion (Doc. 11) to dismiss all state law claims against him. The court will address these claims seriatim.*fn6
A. State Law Claims Against Moule
Under the Pennsylvania Political Subdivision Tort Claims Act ("PPSTCA"), police officers are immune from state tort liability for acts within the scope of their employment except when the alleged conduct involves "a crime, actual fraud, actual malice or willful misconduct." 42 PA. CONS. STAT. § 8550. Willful misconduct has been defined as "conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow." Horton v. City of Harrisburg, No. 1:06-CV-2338, 2009 WL 2225386 at *6 (M.D. Pa. 2009) (quoting Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)) (quotations omitted). Essentially, willful conduct is "synonymous with the term 'intentional tort.'" Id.*fn7 The existence of willful misconduct is a question of law. See Kuzel v. Krause, 658 A.2d 856, 860 (Pa. Commw. Ct. 1995).
Brummell has conceded that the negligence claim against Moule should be dismissed based on the PPSTCA, but Brummell maintains that Moule does not enjoy immunity from IIED, wrongful death, and assault and battery claims because he engaged in willful misconduct, as set forth in 42 PA. CONS. STAT. § 8550.
Moule argues Brummell has not claimed facts sufficient to show that he acted with the requisite mental state for willful misconduct. As support, Moule offers an elevated standard for willful misconduct: willful misconduct aforethought. See Kuzel v. Krause, 658 A.2d 856, 860 (Pa. Commw. Ct. 1995) (interpreting the treatment of willful misconduct in Renk as "willful misconduct aforethought"). In terms of the earlier definition equating willful misconduct to an intentional tort, Moule argues that Pennsylvania case law subsequent to the Pennsylvania Supreme Court's decision in Renk v. City of Pittsburg, 641 A.2d 289 (Pa. 1994), requires Brummell to show that Moule intended to commit an intentional tort against the decedent. See Pettit v. Namie, 931 A.2d 790, 801 ...