The opinion of the court was delivered by: Legrome D. Davis, J.
AND NOW, this 14th day of May, 2012, upon consideration of Defendant City of Philadelphia's Amended Motion for Summary Judgment (Doc. No. 30) and Plaintiffs' Response in Opposition Thereto (Doc. No. 32), it is hereby ORDERED that said Motion (Doc. No. 30) is GRANTED IN PART and DENIED IN PART. Specifically, the City's motion is GRANTED as to Plaintiffs' state law claims (Counts IV, VI, VII, and VIII) and DENIED in all other respects.
I. Factual Background and Procedural History*fn1
On November 21, 2009, then-Philadelphia Police Officer Frank Tepper ("Tepper") murdered Billy Panas following a scuffle between some of Tepper's family and friends and a group of neighborhood youths in front of Tepper's house. Tepper was off-duty at the time, hosting a baby shower for his step-daughter. Tepper had been drinking, and when he shot and killed Panas, Tepper had a blood alcohol content (BAC) of approximately 0.078% to 0.087%.*fn2
(See Doc. No. 30, Ex. C).
Prior to shooting Panas, Tepper exited his house, flashed his badge, identified himself as a police officer, and asked the hostile crowd to disperse. (See Doc. No. 30, Ex. A). They did not comply, even after Tepper pointed his gun at several of them. (See Doc. No. 32, Exs. AA, BB, CC, DD, EE, FF, GG, HH, II, JJ). When Billy Panas said, "he won't shoot anybody," Tepper replied "oh, yeah?," pointed the gun at Panas, and shot him point-blank in the chest. (See id.; Doc. No. KK). Later that night, doctors at Temple University Hospital pronounced Panas dead. (See Doc. No. 32, Exs. MM, NN).
Tepper has a checkered history on the police force. Taking Plaintiffs' evidence as true, as we must for the purposes of this motion, Tepper had a troubling propensity for off-duty drunken violence which went largely unchecked by the Police Department. For example, in the early morning hours of April 19, 1995, Tepper was off-duty, in partial uniform, and drinking in a bar. After leaving the bar, Tepper took offense to a passing motorist's comments to Tepper's fiancee. In an apparent fit of anger, Tepper attempted to stop the car by reaching through the window, trying to remove the keys from the ignition, and trying to shift the car into "park." The driver, Keith Anderson, sped off.
Unsuccessful but undaunted, Tepper chased the car in his private vehicle through the streets of Philadelphia. During the pursuit, Tepper repeatedly struck the rear bumper of Anderson's car and tried to push it into an intersection, through a red light. Tepper eventually pulled in front of Anderson's vehicle and jumped out. Tepper drew his gun, approached the car, and proceeded to pistol-whip Anderson. Later on, Tepper lied about what happened to Internal Affairs (IAD) investigators. Tepper received a slap-on-the-wrist (a 2-day suspension), despite the fact that the investigation revealed that "Officer Tepper's version of events . . . seem to be lacking the whole truth" (to say the least). (See Doc. No. 32, Exs. WWWW (Stine Expert Report summarizing evidence); UU, at 18).
In an ominous portent of things to come, the investigator noted that Tepper should have contacted on-duty police instead of taking matters into his own hands. (See Doc. No. 32, Ex. UU, at 19). Similarly, Tepper's 1995 annual review reflects the Department's awareness of Tepper's overly aggressive off-duty behavior:
[Tepper] is self-motivated an [sic] very aggressive in the area of enforcement. It is this aggressiveness that needs to be tempered with moderation. . . . Officer Tepper needs to pay closer attention to the rules and regulations of the Police Department, in particular those dealing with off duty incidents and conduct. It is this latter concern that has caused Officer Tepper to have a disciplinary action pending against him. (Doc. No. 32, Ex. XXXX). Despite this admonition, Tepper's reviewer somehow concluded that Tepper had "performed all of his duties in a satisfactory manner." (Id.). In fact, Tepper received good reviews all throughout his tenure as a Police Officer. (Id.).
In the winter of 2000, Tepper beat up two boys because they were throwing snowballs outside of his house. This incident came to light in 2002 when one of the boy's mother complained about a more recent altercation between her son and Tepper. It is unclear what, if anything, the Department did in response to these allegations. (See Doc. No. 32, Ex. WWWW (summarizing evidence)).
Also in 2000, Tepper pointed a gun at a 10-year-old boy who was bouncing a basketball in the playground near Tepper's house. (See Doc. No. 32, Exs. XXX, YYY). Apparently, the bouncing ball had disturbed Tepper's sleep. The boy told his mother, who then confronted Tepper and asked why he pointed a gun at her son. Tepper, who was sitting on the front steps of his house with his gun in hand, replied "Who the fu-k are you?" and then went inside. The boy's mother reported the incident to police, but no one ever followed-up with her. (Id.).
In May of 2002, Tepper learned that a boy named Eddie Barr had bullied Tepper's young son in the playground across the street. Tepper (again, off-duty and drinking (See Doc. No. 32, Ex. WWW)) grabbed his pepper spray and gun and ran outside in search of Barr. But Tepper could not find Barr, so he returned home and called the police to file a report. Instead of waiting for police to arrive, Tepper went back outside looking for Barr. Like before, Tepper had no luck, but he ran into a group of teenagers and got into a fight with them instead. Tepper pepper sprayed the teenagers, pulled his gun, and said "yeah, I'll shoot you, I'll shoot all of you, I don't care." (See Doc. No. 32, Exs. WWWW (summarizing evidence); CCCC, EEEE, FFFF). Fortunately, Tepper did not shoot anyone that day, but the parallels between this event and the Panas murder are obvious.
Tepper was not disciplined for his role in this incident, even though he violated the Commissioner's Memo regarding off-duty police actions, (See Doc. No. 32, Exs. WWWW (summarizing evidence); VV, OOOO, RRRR, SSSS, TTTT), and even though the IAD investigator found Tepper to be less-than-truthful once again. (See Doc. No. 32, Ex. VV, at 6). In addition, following this most recent altercation between Tepper and the teens, numerous Department officials essentially predicted Panas' murder:
As a result of this investigation, it has been determined that [Tepper] acted in accordance with departmental policy. However, it would have been prudent to have called 9-1-1 to report the assault [on Tepper's son] and get back-up before interceding. His actions, reacting to intense emotion about the welfare of his son, could have resulted in an ...