Judge dismisses claim against Pa. municipality by elderly Bucks Co. resident; plaintiff can amend suit

By Jon Campisi | Oct 21, 2013

A federal judge has granted a municipality’s petition to dismiss a lawsuit

that had been initiated by a 90-year-old man who says he was physically removed from his driveway by Lower Makefield Township police officers acting on a report made by an employee of a home-care agency.

Quincey Norwood, who uses a mechanized walker to get around, claimed in a lawsuit against the township and Premier Personal Care Inc. that he sustained serious and permanent injuries early last May after two officers attempted to forcibly remove the elderly man from his driveway, causing the plaintiff to lose his grip on his walker and fall to the pavement.

At the time, Norwood was in the midst of a business dispute with a woman identified as Amy Wilson, an employee of Premier who had gone to Norwood’s home to confront him about a bill.

In his complaint, Norwood noted that he had been dissatisfied with Premier, which he had initially retained to provide in-home personal assistance for his terminally ill wife, and so he went on to contact a different service provider, Right At Home Personal Services, about replacing Premier.

Because Norwood had been satisfied with the care provided by employee Gladys Kimber, however, he asked Right At Home whether it could hire Kimber so the woman could continue providing care to the plaintiff’s ailing spouse, the record shows.

On May 2, 2012, Kimber started the day as a Premier employee, but was hired by Right At Home that same day following an interview with the company.

While Kimber was at her job interview, Wilson, the Premier representative, arrived at Norwood’s home demanding to speak with Kimber, the record shows.

The plaintiff explained that Kimber was not at the home and subsequently asked Wilson to leave.

Kimber, meanwhile, returned to the home later that day and resumed work, but this time as a Right At Home employee.

Norwood soon called Premier to say he was terminating his contract with the company.

In his lawsuit, Norwood alleged that that evening, a Premier representative called Kimber and told the woman to leave Norwood’s home, saying if she failed to do so the police would be called in.

Wilson then returned to the home, presenting Norwood with a bill of services through midnight of that night.

And again Wilson asked to speak with Kimber.

Norwood then asked Wilson to leave, and when the woman failed to do so, the plaintiff followed her into the driveway, where the two were met by two Lower Makefield police officers.

In a police report, Wilson falsely alleged that Norwood was refusing to allow Kimber to leave the residence, even though Kimber no longer worked for Premier, Norwood said in his lawsuit.

Because Kimber told Norwood she didn’t want to leave, but was being forced to leave by the police and Premier, Norwood resisted the officers’ efforts to remove him from his driveway, the complaint stated.

It was when the officers attempted to forcibly remove the plaintiff from his driveway that Norwood tumbled to the ground and injured himself, the suit claims.

In his lawsuit, filed this past June, Norwood alleged civil rights violations, as well as a count of filing a false police report against Premier, a count of excessive force against the officers, and a claim of negligence against the township for failing to properly supervise and train the officers.

In his Oct. 15 memorandum and order, U.S. District Judge Juan R. Sanchez granted a motion to dismiss that had been filed by township, agreeing with municipal attorneys who argued that the plaintiff failed to allege a plausible claim for municipal liability under Section 1983 of the Civil Rights Act.

The judge dismissed the claim without prejudice, however, allowing Norwood to file an amended complaint that would cure any legal deficiencies.

Sanchez next turned his attention to Premier’s request to dismiss the claim against it for filing a false police report since such an action does not constitute a freestanding tort under Pennsylvania law.

While the plaintiff didn’t dispute that there is no independent cause of action for filing a false police report, he argued that he nevertheless alleged a viable tort claim against Premier under Colon v. Vash.

In that case, the trial court denied defense summary judgment as to a claim for intentional infliction of emotional distress where the plaintiff alleged he had been wrongfully confined and arrested after a store manager falsely informed police the man had been shoplifting.

“Norwood argues that although the Complaint does not identify his claim against Premier as one for intentional infliction of emotional distress, his allegations are sufficient to state a claim under this theory,” Sanchez wrote in his memorandum.

The judge noted that Premier’s motion to dismiss doesn’t address whether Norwood’s allegations are sufficient to state a claim for intentional infliction of emotional distress.

Sanchez said he would dismiss Norwood’s state law claim against Premier without prejudice if the plaintiff chooses not to file an amended complaint against the township, which is located in Bucks County, Pa.

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