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Scott R. Swaney and Charlene v. Nicholas Jordan and Melinda Citero


April 19, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiffs Scott R. Swaney and Charlene Swaney (collectively, "Plaintiffs"; individually, "Mr. Swaney" or "Mrs. Swaney") brought this action against Defendants Nicholas Jordan and Melinda Citero (collectively, "Defendants"; individually, "Jordan" or "Citero"), in their individual capacities, for alleged constitutional violations of the Fourth and Fourteenth Amendments of the United States Constitution, along with pendent state law tort claims, related to conduct that occurred on May 25, 2009. (See Docket No. 15). Currently pending before the Court is a Partial Motion to Dismiss filed by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 19). For the reasons that follow, that Motion is denied.


Since this matter comes before the Court on a motion to dismiss, the factual allegations

contained in Plaintiffs' Amended Complaint are assumed to be true. Hemi Group, LLC v. City of N.Y., 130 S.Ct. 983, 986-87 (2010) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)). According to the Amended Complaint, Plaintiffs are adult individuals who reside in Fairchance, Pennsylvania. (Docket No. 15 at ¶¶ 4, 5). Defendants are officers of the Pennsylvania State Police who are based in Fayette County, Pennsylvania. (Id. at ¶¶ 6, 7).

On the evening of May 25, 2009, Defendants arrived at the home of Tim Pechatsko, who is one of Plaintiffs' neighbors. (Id. at ¶¶ 12, 13). At that time, Plaintiffs were outside on their front porch and observed Defendants proceed to the rear entrance of Mr. Pechatsko's home. (Id. at ¶ 13). Shortly thereafter, Plaintiffs heard Jordan screaming and also heard a scuffle. (Id.). Plaintiffs then watched as Defendants escorted Mr. Pechatsko out of his home in handcuffs. (Id.).

While Mr. Pechatsko was in handcuffs, Plaintiffs witnessed Jordan deliberately choke the already restrained man. (Id. at ¶ 14). To this, Mr. Swaney told Jordan that "I saw what you did to him," and advised Mr. Pechatsko that he would testify for him. (Id. at ¶ 15). In response, Jordan yelled at Plaintiffs to go inside and further instructed them that they did not see a "fucking thing." (Id. at ¶ 16). Mr. Swaney complied with Jordan's initial demand and went into the home. (Id.). Following this exchange, Citero went to Plaintiffs' home for the purpose of ascertaining their respective names. (Id. at ¶ 18). In fear that she was being harassed, Mrs. Swaney followed her husband into the home to call a superior officer. (Id.).

After placing Mr. Pechatsko into his police vehicle, Jordan drove to Plaintiffs' home. (Id. at ¶ 18). While exiting his vehicle, he yelled to the Plaintiffs that "you are going to fucking jail." (Id. at ¶ 18). He then attempted to open a latched gate.*fn1 (Id. at ¶ 19). Because the gate was latched, Jordan reached over the gate and ripped the telephone from Mrs. Swaney's hand, disconnecting the line in the process. (Id.) Jordan then threw the phone across the porch. (Id.).

While screaming that he could "do whatever I want," Jordan grabbed Mrs. Swaney by the arm and attempted to physically pull her over the gate. (Id. at ¶ 20). Jordan then discharged his taser gun in the direction of Mr. Swaney. (Id. at ¶ 21). The first probe hit Mr. Swaney in the forehead, while the second probe hit him in the chest. (Id.). Mr. Swaney attempted to reach for the phone to call for help, but was stopped from doing so when Jordan jumped the fence and climbed on to the porch. (Id. at ¶ 22). At that point, Jordan shot Mr. Swaney for a second time with his taser gun. (Id. at ¶ 23). The probes entered his left hand and his left arm. (Id.). In total, Jordan attempted to his discharge his taser gun on four occasions; however, a malfunction prevented the taser gun from working more than twice. (Id. at ¶ 26).

After he had been shot with the taser gun, Jordan struck Mr. Swaney on the head with his club or stick, which knocked him to the ground and caused him to lose consciousness. (Id. at ¶ 27). Thereafter, Jordan drew his service revolver and pointed it at Mrs. Swaney's face. (Id. at ¶ 28). Jordan pushed Mrs. Swaney to the floor of the porch, where she was then handcuffed by Citero. (Id. at ¶¶ 28, 29).

Around this time, Mr. Swaney began to regain consciousness and was bleeding profusely. (Id. at ¶ 30). Mrs. Swaney informed Defendants that her husband suffered from cancer and, as such, needed immediate medical attention. (Id.). In response, Jordan, still pointing his service revolver at Mrs. Swaney, placed his boot on top of her head, pushing it further onto the porch floor while shouting "shut up you fucking dumb bitch, he is tough, he can take it." (Id. at ¶ 31). Jordan then grabbed Mr. Swaney from the floor and threw him into a chair on the porch. (Id. at ¶ 32). He told Plaintiffs that "I am no longer an officer," and that the situation was "fucking personal." (Id. at ¶ 32).

Finally, other police officers arrived on the scene. (Id. at ¶ 33). The other officers called for a paramedic and Mr. Swaney was placed into an ambulance. (Id.). Mrs. Swaney repeatedly requested to speak to a superior officer regarding Defendants' conduct. (Id. at ¶ 34). Specifically, she asked to speak with a corporal in the police department, who had arrived on the scene. (See Id.). This request was denied by Jordan. (Id.).

Mrs. Swaney, while still in handcuffs, was initially placed in the back of Citero's police car. (Id. at ¶ 36). She was then asked to sign a document and was released from the vehicle. (Id.). Thereafter, Jordan told Mrs. Swaney that if he saw her at the hospital, he would arrest her. (Id. at ¶ 37). Jordan then released Mr. Pechatsko after he also signed a document. (Id. at ¶ 38).

Mr. Swaney's injuries were severe and he required immediate medical treatment. (Id. at ¶ 39). He was transported to the Emergency Room at Uniontown Hospital, where he was treated for a deep gash to his head that required staples and wounds to his hands where the taser probe had lodged. (Id.). His injuries have caused him near blindness and extreme headaches. (Id. at ¶ 40). He has had to seek recurrent medical treatment. (Id. at ¶ 41). Similarly, Mrs. Swaney sought treatment for bruises and an injured left shoulder. (Id. at ¶ 42).

Both Plaintiffs were eventually charged with disorderly conduct, and Mr. Swaney was also charged with resisting arrest. (Id. at ¶¶ 43, 44). In an effort to have the charges against his wife dropped, and to allow his entrance into the state's ARD Probation Program, Mr. Swaney pled guilty to these charges. (Id. at ¶ 44). The charges against Mrs. Swaney were reinstated two weeks later, but were again dropped at a subsequent magistrate hearing. (Id.). Ultimately, Mr. Swaney applied for and was accepted into the probation program. (Id.).


On April 23, 2010, Plaintiffs commenced this action against Defendants in the Western District of Pennsylvania, alleging violations of the Fourth and Fourteenth Amendments to the United States Constitution and the tort law of Pennsylvania. (Docket No. 1 at ¶¶ 50-99). Their federal constitutional claims were brought pursuant to 42 U.S.C. § 1983, (Id. at ¶¶ 51, 74), and their state-law claims were brought under Pennsylvania common law for intentional infliction of emotional distress, assault and battery, and loss of consortium. (Id. at ¶¶ 64-72, 87-99). Defendants filed both a Partial Motion to Dismiss, seeking the dismissal of all of Plaintiffs' tort claims along with Plaintiffs' Fourteenth Amendment claims, as well as a Partial Answer on October 13, 2010. (Docket Nos. 10, 12).

Subsequently, Plaintiffs filed an Amended Complaint on November 2, 2010.*fn2 (Docket No. 15). That same day, Plaintiffs filed a second document, titled "Plaintiffs' Response to Defendants' Partial Motion to Dismiss," wherein they withdrew any substantive claims made under the Fourteenth Amendment and agreed that their constitutional claims should be analyzed under a Fourth Amendment standard.*fn3 (Docket No. 16 at 1). Additionally, within the later filing, Plaintiffs also clarified that their loss of consortium claims relate solely to their pendent state law claims and not to the alleged civil rights violations.*fn4 (Id. at 3). Given the filing of

Plaintiffs' Amended Complaint, the Court terminated Defendants' initial Partial Motion to Dismiss, as moot, on November 3, 2010.

As in the original Complaint, the Amended Complaint names Jordan and Citero as Defendants in their individual capacity. (Compare Docket No. 1 at ¶¶ 6, 7, with Docket No. 15 at ¶¶ 6, 7). On November 11, 2010, Defendants again filed a Partial Motion to Dismiss, along with a supporting brief, wherein they argue that they are entitled to sovereign immunity on all of Plaintiffs' state law tort claims.*fn5 (Docket Nos. 19, 20). Subsequently, Plaintiffs filed a series of motions requesting extensions of time within which to file their response, (see Docket Nos. 26, 28, 30, 32), which the Court granted for good cause shown, (see Docket Nos. 27, 29, 31, 33, 34).*fn6 Ultimately, on March 8, 2011, Plaintiffs filed their response to Defendants' motion. (Docket No. 35). As the motion is now fully briefed, it is ripe for disposition.


In light of the United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). This standard requires more than "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. The complaint must allege a sufficient number of facts "to raise a right to relief above the speculative level." Id. This requirement is designed to facilitate the notice-pleading standard of Federal Rule of Civil Procedure 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

In considering a motion to dismiss, a court accepts all of the plaintiff's allegations as true and construes all inferences drawn from those allegations in the light most favorable to the plaintiff. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual averments. Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 n.8 (3d Cir. 1997). The primary question in deciding a motion to dismiss is not whether the plaintiff will ultimately prevail, but rather whether he or she is entitled to offer evidence to establish the facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000). The purpose of a motion to dismiss is to "streamline[] litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). In addition to the allegations contained in the complaint, a court may consider matters of public record, exhibits attached to the complaint, and other items appearing in the record of the case. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).


Defendants contend that Plaintiffs' state law tort claims for intentional infliction of emotional distress, assault and battery, and loss of consortium should be dismissed because they are barred under the doctrine of sovereign immunity.*fn7 (See Docket Nos. 19 at ¶ 2, 20 at 3-5).

Article I, § 11 of the Pennsylvania Constitution provides:

All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may be law direct.

Pa. Const. Art. I, § 11. As the language of this constitutional provision indicates, it is the prerogative of the Pennsylvania Legislature to specify the types of "cases" which warrant suits against the Commonwealth of Pennsylvania. See Lingo v. Phila. Hous. Auth., 820 A.2d 859, 861 (Pa. Commw. Ct. 2003). In accordance with this authority, the Pennsylvania Legislature has enacted 1 Pa. Cons. Stat. § 2310, which provides:

Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute. 1 Pa. Cons. Stat. § 2310. Pursuant to the plain language of this provision, employees of the Commonwealth are entitled to sovereign immunity (except where specifically provided to the contrary by a separate statutory provision) when they act "within the scope of their duties." Story v. Mechling, 412 F. Supp. 2d 509, 518-19 (W.D. Pa. 2006).

The Sovereign Immunity Act makes it clear that, except as specifically provided therein, no statutory provision shall constitute a waiver of the Commonwealth's sovereign immunity. 42 Pa. Cons. Stat. § 8521(a). The relevant statutory language is codified at 42 Pa. Cons. Stat. § 8522(a), which provides:

The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity. 42 Pa. Cons. Stat. § 8522(a).*fn8 The term "Commonwealth party" is defined as "[a] commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment."*fn9 42 Pa. Cons. Stat. § 8501. Plaintiffs do not dispute that none of the "instances set forth in subsection (b)" are applicable in this case.*fn10 (Compare Docket Nos. 16, 35, with Docket No. 20 at 4). Therefore, the dispositive question is whether Defendants' actions, as alleged in the Amended Complaint, were "within the scope of their duties" as officers of the Pennsylvania State Police. If so, they are immune from Plaintiffs' state law tort claims.

Under Pennsylvania law, even unauthorized actions taken by an employee can fall within the scope of his or her employment if they are "clearly incidental" to his or her employer's objectives. Brumfield v. Sanders, 232 F.3d 376, 381 (3d Cir. 2000). In Natt v. Labar, the Pennsylvania Commonwealth Court explained:

Conduct of an employee is within the scope of employment if it is of a kind and nature that the employee is employed to perform; it occurs substantially within the authorized time and space limits; it is actuated, at least in part, by a purpose to serve the employer; and if force is intentionally used by the employee against another, it is not unexpected by the employer. 543 A.2d 223, 225 (Pa. Commw. Ct. 1988) (citing Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979).*fn11 The extent to which the intentional use of "force" is properly characterized as an act within the scope of one's employment depends on the extent of an employer's expectation of force rather than on the extent of an employer's authorization of force. See Strothers v. Nassan, Civ. No. 08-1624, 2009 U.S. Dist. LEXIS 30208, at *26-27 (W.D. Pa. Apr. 9, 2009). While the question of whether an individual has acted within the scope of his employment is typically a question of fact for a jury, the issue can be decided as a matter of law where the facts and inferences drawn from the complaint are not in dispute. Id. at *27. Ultimately, an act by a Commonwealth official or employee that does not satisfy the criteria identified in Natt is outside the scope of employment and is not covered by state sovereign immunity. See Bowman v. Reilly, Civ. No. 09-1322, 2009 U.S. Dist. LEXIS 48505, at *10 (E.D. Pa. June 10, 2009) (referencing the standard set forth in § 228 of the Restatement (Second) of Agency).


Within this framework, Defendants argue that they were acting within the scope of their employment during the entirety of the incident. (See Docket No. 20). Specifically, they assert that "[s]ubduing persons who refuse to follow police orders, filing charges against people, and participating in prosecutions are definitely several of the many types of acts law enforcement officers are employed to perform." (Id. at 3-4). They further assert that "the use of force in the commission of their duties, if necessary, is also one of the many acts law enforcement officers are employed to perform." (Id. at 4). Plaintiffs dispute these assertions. (See Docket No. 35). In particular, Plaintiffs respond that statements made by Jordan at the scene, accompanied with Citero's failure to respond or intervene on their behalf, establish that neither Defendant was acting within the scope of his or her employment duties.*fn12 (Id. at 3). Moreover, Plaintiffs cite the following allegations as actions that fall outside of Defendants' scope of authority: (1) using excessive force; (2) committing an assault; (3) committing a battery; (4) bringing false criminal charges; and (5) participating in an unlawful prosecution.*fn13 (See Docket Nos. 16 at 2; 35 at 2 n.3)

Accepting Plaintiffs' factual allegations as true, the Court concludes that a reasonable reading of the Amended Complaint establishes that Defendants may have acted outside the scope of their employment in a manner sufficient to overcome Defendants' sovereign immunity defense at the pleading stage. See Revak v. Lieberum, Civ. No. 08-691, 2008 U.S. Dist. LEXIS 91029, at *11-12 (W.D. Pa. Nov. 10, 2008).

In making this determination, the Court recognizes that other district courts have found that the conduct of an officer may be so excessive that he is not acting within the scope of his employment. See, e.g., Bowman, 2009 U.S. Dist. LEXIS 48505, at *11-15 (denying a motion to dismiss on the grounds that the defendant state police officer's act of shooting the plaintiff in the neck during a traffic stop may have been outside the scope of his employment). For instance, in Wesley v. Hollis, the district court stated that "[w]here the alleged intentional tort was unprovoked, unnecessary or unjustified by security concerns or penological goals, courts have ruled that such conduct does not, as a matter of law, fall within the scope of employment." Civ. No. 03-3130, 2007 U.S. Dist. LEXIS 41562, at *50 (E.D. Pa. June 7, 2007). Similarly, in Strothers v. Nassan, this Court acknowledged the principle that "an assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment." 2009 U.S. Dist. LEXIS 30208, at *31 (quoting R.A. v. First Church of Christ, 748 A.2d 692, 700 (Pa. Super. Ct. 2000)). In addition, "[t]he fact that an assault has been carried out by an employee in an ‗outrageous manner' may be indicative that the employee has acted out of ‗private malice' rather than out of an intent to perform his or her duties." Strothers, 2009 U.S. Dist. LEXIS 30208, at *31 (citing Lunn v. Yellow Cab Co., 169 A.2d 103, 105 (Pa. 1961)).

Counseled by these decisions, and the factual averments in the Amended Complaint, this Court concludes that Plaintiffs are entitled to engage in discovery concerning the "reasons" for Defendants' actions. Consequently, Defendants' Partial Motion to Dismiss is denied, without prejudice. (See Docket No. 19). Defendants remain free to move for summary judgment with respect to this issue if discovery reveals that they acted pursuant to their employment responsibilities rather than pursuant to personal motives unrelated to law enforcement. See Strothers, 2009 U.S. Dist. LEXIS 30208, at *32 (citing Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 314-16 (E.D.N.Y. 2003)).


Because the allegations made in the Amended Complaint, when construed in the light most favorable to Plaintiffs, could plausibly entitle Plaintiffs to relief under the tort law of Pennsylvania, Defendants' Partial Motion to Dismiss, (Docket No. 19), is DENIED, without prejudice. An appropriate Order follows.

Nora Barry Fischer United States District Judge

cc/ecf: All counsel of record.

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