Jon Campisi May 16, 2013, 7:22am

A federal judge has vacated an earlier decision to award costs to two Bucks County police

departments and various officials who won a case in which they were sued by the parents of a 21-year-old man who was shot and killed while trying to evade arrest in the spring of 2006.

In a May 9 memorandum and order, U.S. District Judge R. Barclay Surrick, of the Eastern District of Pennsylvania, granted a motion by plaintiffs Carol and Bruce Sullivan to vacate the clerk of court’s taxation of costs in their case against the Warminster and Warrington Police Departments.

The Sullivans filed suit against the two municipal law enforcement agencies in October 2007 over allegations that the defendants committed constitutional violations when officers shot Sean Sullivan on March 31, 2006, as he was climbing out of a window at his mother’s home attempting to escape arrest.

Sean Sullivan died as a result of the gunshot wounds.

After a two-plus-week jury trial at the federal court in Philadelphia in the spring of 2011, records show, a verdict was entered in favor of the defendants.

The plaintiffs filed an appeal with the U.S. Third Circuit Court of Appeals in late February of last year, but the judgment was ultimately upheld.

Prior to the appeal, however, the defendants had filed a bill of costs stemming from the litigation, after which the clerk of courts taxed costs against the plaintiffs and in favor of the defendants for close to $50,000, the record shows.

The plaintiffs subsequently filed a request that the court vacate the costs awarded by the clerk, arguing that Bruce Sullivan sued solely in his capacity as the administrator of his late son’s estate, and that as a result, the court may not impose costs on the father in his individual capacity.

The couple had also argued that the award should be vacated as to Carol Sullivan because she is indigent and unable to pay the costs.

In opposing Bruce Sullivan’s motion, the defendants argued that as co-administrator of his deceased son’s estate, the man lacked the capacity to assert a claim under Pennsylvania’s wrongful death statute, and therefore the suit must be construed as an individual claim.

Surrick wrote in his memorandum that just before trial, the court granted a defense motion for summary judgment as to the wrongful death count, but did not determine the estate’s capacity to sue under the statute.

The plaintiffs counter-argued that the defendants were obligated to raise this issue as an affirmative defense, and that the defendants are estopped from raising the issue at this time because they failed to previously do so.

Surrick ultimately sided with the plaintiffs on this issue, writing that they cannot now argue that the estate lacked the capacity to pursue a wrongful death claim.

“As Plaintiffs correctly observe … Bruce Sullivan intended to bring the wrongful death claim as a co-administrator of the estate, and did not pursue this claim ‘on his own behalf,’” the judge’s memorandum states. “Since Bruce Sullivan brought no individual claims, and was not an individual party to this case he cannot be liable for costs …”

Surrick also agreed with Carol Sullivan that she is not required to pay costs because of her indigent state.

Carol Sullivan had provided the court with an affidavit in which she stated that after witnessing her son’s death, she began suffering from flashbacks, depression, sleeping difficulties, panic attacks and other issues, all of which prevented her from maintaining employment.

“In light of Ms. Sullivan’s indigence, we are compelled to conclude, as a matter of equity, that the award of costs against her must be vacated in its entirety,” Surrick wrote. “Ms. Sullivan will not be able to pay these costs.

“She has no income, she has no bank account, and she survives off Government assistance and charity from her family. Clearly, to force Ms. Sullivan to pay costs in this matter ‘would be unduly burdensome’ both financially and emotionally.”

The judge refused, however, to vacate the costs against the estate of Sean Sullivan because, he wrote, the plaintiffs have provided no evidence in support of their contention that the estate has no assets.

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