Nicholas Malfitano Jun. 2, 2015, 1:33pm


PHILADELPHIA – A federal judge on Wednesday dismissed Family Dollar from a Chicago couple’s lawsuit against it and officers of the Philadelphia Police Department for allegedly assaulting the husband and covering it up through filing a false report.

Ben and Maxine Robinson filed suit against Family Dollar, Family Dollar Stores of Pennsylvania, now-former Philadelphia Family Dollar store employee Braheem Wilkins, Philadelphia Police Department Commissioner Charles Ramsey, the Philadelphia Police Department, Officer Wilfrid Etienne and 10 John Doe officers in June 2014 over an alleged incident that took place in April of the previous year.

On April 29, 2013, Ben Robinson was exiting the Family Dollar location at 48th and Girard Streets in Philadelphia after shopping, when he claimed to be approached by Wilkins, two unidentified store employees and a Family Dollar security guard.

The Family Dollar employees believed Robinson to be a shoplifter and confronted him with that accusation.

Robinson denied taking anything from the store, and was then allegedly “gang beaten” by store employees who struck him repeatedly and hit him with a tire iron. The entire incident was captured on store surveillance video, as well as video recorded by a bystander.

Robinson was treated at an area hospital for his injuries and released, after which he was arrested by Etienne for “aggravated assault, robbery, retail theft, theft by unlawful taking, receiving stolen property, and simple assault based on Family Dollar employees’ reports to the police.”

However, the Philadelphia County Court of Common Pleas exonerated Robinson of these criminal charges when analysis of the Family Dollar store surveillance video showed Robinson had not picked up any merchandise and was attacked without provocation.

In an initial complaint filed in June 2014 and an amended complaint filed in October, the Robinsons levied claims of assault and battery, malicious prosecution/false arrest/false imprisonment, negligence/negligent supervision, intentional infliction of emotional distress and loss of consortium against Family Dollar and its employees.

Also listed were claims of malicious prosecution/false arrest/false imprisonment, Monell violations and loss of consortium against Philadelphia Police Department Commissioner Charles Ramsey, the Philadelphia Police Department, Officer Wilfrid Etienne and 10 John Doe officers.

Judge Gerald J. Pappert, of the U.S. District Court for the District of Pennsylvania, explained his rationale for dismissing each of the claims against Family Dollar, beginning with the assault and battery charge, feeling it was not shown the employees acted “within the scope of their employment,” which could have made their employer liable for their actions.

“Plaintiffs have not alleged facts showing that Family Dollar’s employees were acting within the scope of their employment, and thus have not alleged a claim of assault or battery pursuant to a theory of respondeat superior against Family Dollar. This claim is dismissed,” Pappert wrote.

Pappert used similar rationale to dismiss the charges of malicious prosecution, false arrest and false imprisonment, as he felt Family Dollar employees and the police officers did not meet the legal standard sufficient to being labeled as “state actors,” nor were they working in concert together.

“The critical issue ‘is whether the state, through its agents or laws, has established a formal procedure or working relationship that drapes private actors with the power of the state,’ i.e. a prearranged plan through which the state official surrendered the exercise of its official judgment to a private party,” Pappert said.

“Plaintiffs allege no facts suggesting that Family Dollar had a prearranged plan with the Philadelphia Police under which the police would arrest anyone identified as a shoplifter without conducting an independent investigation.”

Negligence and negligent supervision against Family Dollar were also claims that Pappert felt did not meet the required legal standard.

“Plaintiffs, however, allege that the Family Dollar employees were acting within the scope of their employment. This allegation is fatal to their claim. Furthermore, plaintiffs’ claim fails on the basis of foreseeability,” Pappert said.

“They do not allege any facts showing that Family Dollar employees had dangerous propensities warranting Family Dollar’s supervision or that the assault or the false report provided by Family Dollar employees were reasonably likely to occur.”

Finally, though Family Dollar did not move to dismiss the loss of consortium claim levied against it, Pappert reasoned it must also be dismissed in conjunction with the remainder of the torts already dismissed.

Pappert concluded by providing the Robinsons with another opportunity to amend the counts of their complaint with more factual rationale, as to their claims of assault and battery, malicious prosecution/false arrest/false imprisonment, negligence/negligent supervision, intentional infliction of emotional distress and loss of consortium.

The claims against the remainder of the defendants stand.

The plaintiffs are seeking individually, jointly and severally in this case, in an amount in excess of $75,000, plus statutory damages, compensatory damages, attorney’s fees, court costs, injunctive relief and any other relief the Court feels is just and appropriate.

The plaintiffs are represented by Matthew B. Weisberg of Weisberg Law, in Morton.

The defendants are represented by David Shafie of Mintzer Sarowitz Zeris Ledva & Meyers in Philadelphia and Brock Atkins of the City of Philadelphia Law Department.

U.S. Eastern District Court of Pennsylvania case 2:14-cv-03189

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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