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White v. Brommer

September 30, 2010

BRIAN WHITE, PLAINTIFF
v.
JACK BROMMER AND BOROUGH OF COLUMBIA, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner, United States District Judge

OPINION

This matter is before the court on the Motion of Defendants Jack Brommer and Borough of Columbia to Partially Dismiss Plaintiff's Complaint, which motion was filed on November 19, 2009.*fn1 Plaintiff, Brian White's Response in Opposition to Defendants, Sgt. Jack Brommer and Borough of Columbia's Partial Motion to Dismiss the Complaint was filed on December 3, 2009.*fn2 The Reply Brief of Defendants in Support of their Motion to Partially Dismiss Plaintiff's Complaint was filed on December 29, 2009.

SUMMARY OF DECISION

In this civil-rights lawsuit, plaintiff Brian White, an African-American, brings both federal statutory, and state common-law, causes of action against defendant police Sergeant Jack Brommer and his employer, defendant Borough of Columbia, Lancaster County, Pennsylvania. The suit arises from plaintiff's arrest by Sergeant Brommer on charges of public drunkenness and disorderly conduct and plaintiff's subsequent termination from his employment as a doorman providing security at the Riverside Bar & Grill in Columbia.

In Count I of the Complaint*fn3 , plaintiff sues both defendants pursuant to 42 U.S.C. § 1983 for an unconstitutional seizure of his person in violation of the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff alleges that there was no probable cause to arrest him, that his seizure was unreasonable, and that his treatment by defendants violated his rights under those Amendments to be free from unreasonable seizure.*fn4

In their motion to partially dismiss the Complaint, both defendants seeks dismissal of Count I to the extent that it asserts a due process claim under the Fourteenth Amendment because the more specific text of the Fourth Amendment applies.

While defendants are correct that the Fourth Amendment governs and a substantive due process claim under the Fourteenth Amendment would properly be dismissed, their argument is moot because plaintiff concedes that he is not alleging a substantive due process claim. Accordingly, I denied defendants' motion to dismiss the Fourteenth Amendment claim.

However, because plaintiff is not alleging a Fourteenth Amendment claim, only his Fourth Amendment claim remains in Count I. Because defendants' motion to dismiss did not attack the Fourth Amendment claim, that claim against both defendants remains in the lawsuit.

In Count II of the Complaint, plaintiff sues both defendants pursuant to 42 U.S.C. § 1983 for malicious prosecution in violation of the Fourth and Fourteenth Amendments. In this count, plaintiff alleges that there was no probable cause for his arrest, that he was not intoxicated and had not engaged in any disorderly conduct, that he was acquitted of both charges, and that his treatment by defendants violated his rights under those Amendments to be free from malicious prosecution.*fn5

In their motion to dismiss, both defendants seek dismissal of Count II. They contend that plaintiff has not pled a necessary element of a malicious prosecution claim when filed against a police officer rather than a prosecutor - that is, facts alleging that Sergeant Brommer knowingly provided false information to the prosecutor.

I concluded that plaintiff's Complaint does contain such facts. I concluded that the Complaint supports the reasonable inference that defendant Brommer either initiated the prosecution directly, or communicated information to the prosecutor which Sergeant Brommer knew to be false.

Accordingly, I denied defendants' motion to dismiss Count II from plaintiff's Complaint. Therefore, Count II remains in the lawsuit against both defendants.

In Count III of the Complaint, plaintiff sues both defendants pursuant to 42 U.S.C. § 1981 for intentional discrimination in regard to plaintiff's right to contract.

In this count, plaintiff alleges that he is an African American. Plaintiff contends that with the intent to discriminate against plaintiff because of his race, defendant Sergeant Brommer contacted plaintiff's employer and requested termination of plaintiff's employment. Plaintiff asserts that the discrimination resulted in the violation of his protected right to make, enforce and carry out his employment contract at the Riverview Bar & Grill.*fn6

In its motion to partially dismiss the Complaint, defendant Borough of Columbia seeks dismissal of Count III against the Borough because Section 1981 does not provide for a private cause of action against a municipal defendant. Defendant Borough argues that plaintiff must seek redress against the Borough for violation of his Section 1981 rights through a cause of action under Section 1983. Moreover, defendant Borough asserts that plaintiff has not pled facts to support a Section 1983 action against the Borough for violation of plaintiff's Section 1981 rights.

Plaintiff concedes in his Brief that pursuant to McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009), Section 1981 only provides for a cause of action against Sergeant Brommer. However, plaintiff argues that his Complaint avers sufficient facts to support a Section 1983 claim against the Borough pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because the Borough failed to train its officers concerning contact with arrestees' employers.

I ruled that in order for plaintiff to recover, the failure to train must have caused a pattern of violations. I concluded that plaintiff failed to state a "failure to train" Monell claim under either a "pattern of violations" theory, or a "single violation" theory. I ruled that plaintiff's averments do not show, or support a reasonable inference, that the Borough's failure to train its officers caused Sergeant Brommer to call the owner of the bar and thereby interfere with plaintiff's Section 1981 rights.

Accordingly, I granted defendant Borough's motion to dismiss Count III against the Borough for failure to state a Section 1983 Monell claim against the Borough for violating plaintiff's Section 1981 rights. However, I granted plaintiff leave to amend his Complaint to clearly aver the factual and legal basis for a "failure to train" Monell claim against the Borough.

Because neither defendant filed or briefed a motion to dismiss plaintiff's Count III claims against defendant Sergeant Brommer, those claims remain in the lawsuit.

Counts IV, V and VI of the Complaint each allege pendant state-law claims under Pennsylvania common law against only defendant Sergeant Brommer.

In Count IV of the Complaint, plaintiff sues only defendant Brommer for intentional infliction of emotional distress under Pennsylvania common law. In this count, plaintiff alleges that Sergeant Brommer's actions of telephoning plaintiff's employer and informing him of plaintiff's arrest and requesting that plaintiff be terminated from his employment constituted extreme and outrageous conduct. Plaintiff avers that Sergeant Brommer intended to inflict emotional distress on plaintiff when he telephoned plaintiff's employer.*fn7

In his motion to dismiss, defendant Brommer seeks dismissal of Count IV because his alleged conduct was not extreme and outrageous as a matter of law, and because plaintiff pled no facts supporting a reasonable inference that he suffered, or is suffering from, emotional distress and that such distress is or was real.

I concluded as a matter of law that, as pled, Sergeant Brommer's conduct was sufficiently extreme and outrageous to support plaintiff's emotional distress claim. However, I also concluded that plaintiff failed to state an emotional distress claim because he did not sufficiently plead the requisite harm.

I ruled that in order to recover for intentional infliction of emotional distress, plaintiff must suffer some type of resulting physical harm because of defendant's outrageous conduct. However, plaintiff's Complaint is silent as to how this severe emotional distress manifested itself.

Therefore, I granted defendant's motion and dismissed Count IV against defendant Brommer from the Complaint for failure to adequately plead harm. However, I granted plaintiff leave to amend his Complaint to clearly aver what physical harm he suffered, if any, because of the alleged outrageous conduct of defendant Brommer.

In Count V of the Complaint, plaintiff sues only defendant Brommer for tortious interference with a contractual relationship under Pennsylvania common law.

In this count, plaintiff alleges that a contractual relationship existed between plaintiff and his employer because plaintiff was an at-will employee of the Riverview Bar & Grill. He contends that defendant Sergeant Brommer acted with the specific intent to harm plaintiff's continued employment at the bar when defendant Brommer telephoned the bar owner to inform him that plaintiff had been arrested and to request that the owner terminate plaintiff's employment. Plaintiff avers that as a result, he was terminated from his employment.*fn8

In his motion to dismiss, defendant Brommer seeks dismissal of Count V on the ground that Pennsylvania does not recognize a cause of action for tortious interference with a contract based on alleged interference with an on-going, at-will employment relationship.

I concluded that the Supreme Court of Pennsylvania has not ruled on this issue and that the Superior Court of Pennsylvania has ruled inconsistently on the subject. I predicted that, if presented with the issue, the Supreme Court of Pennsylvania will recognize a cause of action for tortious interference with an existing at-will employment relationship.

Therefore, I denied defendant Brommer's motion to dismiss Count V from plaintiff's Complaint. As a result, Count V remains in the lawsuit against defendant Brommer.

In Count VI of the Complaint, plaintiff sues only defendant Brommer for defamation under Pennsylvania common law. In this count, plaintiff alleges that Sergeant Brommer's statement to plaintiff's employer that plaintiff's conduct and public drunkenness made him unfit to continue as a doorman at the bar, harmed plaintiff's reputation and caused plaintiff to lose his job.*fn9

In his motion to dismiss, defendant Brommer seeks dismissal of Count VI against him on the grounds that his communication to the bar owner did not constitute defamation. Sergeant Brommer contends that his communication was "pure opinion", and that pure opinion, without more, does not create a defamation cause of action. He also argues that plaintiff failed to demonstrate that Sergeant Brommer's communication of his opinion could reasonably be understood to imply the existence of undisclosed defamatory facts.

Plaintiff argued that Sergeant Brommer's statements constitute defamation per se because the statements impute a "criminal offense" and "business misconduct" to plaintiff.

I ruled that informing an individual's employer that the employee "was arrested" reasonably implies the fact of criminal conduct by that individual to justify the arrest. I concluded that if Sergeant Brommer did not expose plaintiff to public hatred, contempt, or ridicule by informing the owner that plaintiff was arrested for public drunkenness and disorderly conduct and was unfit to work as a doorman, defendant Brommer certainly did, according to the Complaint, tend to blacken plaintiff's reputation and injure him in his business or employment.

Accordingly, I denied defendant Brommer's motion to dismiss Count VI from plaintiff's Complaint. Therefore, Count VI remains in the Complaint against defendant Brommer.

My reasons and further analysis are articulated below.

JURISDICTION

This action is before the court on federal question jurisdiction. Plaintiff's Complaint asserts claims against defendants under 42 U.S.C. § 1981 and § 1983. See 28 U.S.C. § 1331. Both plaintiff's federal and state-law claims are premised on the same conduct by defendant Brommer. Plaintiff's state-law claims are part of the same case or controversy and are, therefore, properly before the court on supplemental jurisdiction. See 28 U.S.C. § 1367.

VENUE

Venue is proper because plaintiff alleges that all, or a substantial part, of the events giving rise to these claims occurred in Lancaster County, Pennsylvania, which is in this judicial district. 28 U.S.C. §§ 118, 1391.

PROCEDURAL HISTORY

This matter is before the court on the Complaint filed September 24, 2009 by plaintiff Brian White. Defendants filed a motion for partial dismissal of the Complaint on November 19, 2009, which motion, having been briefed by the parties, is now before the court for disposition.

FACTS

Taking all of the well-pled facts contained in the Complaint as true, as I am required to do under the standard of review applicable to a motion to dismiss, discussed below, the facts of this case are as follows.

Plaintiff Brian White is an African-American male who was employed as a doorman providing security at the Riverview Bar & Grill in Columbia, Lancaster County, Pennsylvania.*fn10 Defendant Sergeant Jack Brommer was employed as a law enforcement officer by defendant Borough of Columbia.*fn11

Plaintiff was not working on May 24, 2009, but he was a patron at the bar that day.*fn12 He was not intoxicated and did not engage in any disorderly conduct.*fn13 He left the bar and began walking home.*fn14

Sergeant Brommer was on duty that day and was dispatched to the Riverside Bar & Grill.*fn15 Plaintiff had already left the bar when Sergeant Brommer arrived there.*fn16 When defendant Brommer arrived at the bar he said that he "wanted Brian White."*fn17

Shortly thereafter, while plaintiff White was walking home, he was "picked up" by Columbia Borough Police officers and transported back to the Riverside Bar & Grill. Upon arrival at the bar, plaintiff was arrested by Sergeant Brommer on charges of public drunkenness and disorderly conduct.*fn18

On the following day, Sergeant Brommer telephoned plaintiff's employer, the owner and manager of the Riverview Bar & Grill.*fn19 Sergeant Brommer told the owner that plaintiff had been arrested for public drunkenness and disorderly conduct and that plaintiff was "unfit to work as a ...


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