PHILADELPHIA – Marple Township and several of its police officers have won partial dismissal of claims in civil rights litigation brought by the estate of a man who was left at a bus stop while intoxicated and then killed by a passing vehicle shortly thereafter.
Vonda Pearson (as Administratrix of the Estate of Cornell D. Pearson) of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 12 versus Marple Township, Marple Township Police Department, Chief Brandon M. Graeff, Lt. Frank Hannigan, Lt. Sean Hannigan, Officers David Lerro, Raymond Stiles and Morgan Ditmer, Det. Joseph McGettigan, Sgt. Nicholas P. Coffins (each individually and in their official capacities as members of the Marple Township Police Department), John Does 1-15 and Jane Does 1-5.
“On the evening of Nov. 13, 2021 at 7:21 p.m., Marple Township Police Officers Stiles Lerro and Ditmer, were dispatched to Marshall’s at 400 S. State Road, for the suspicious person call of a Black male looking into vehicles in the parking lot. Upon arrival they encountered Cornell D. Pearson, who was visibly intoxicated, waiting in the Marshall’s parking lot for his girlfriend to finish working her shift at Marshall’s that evening. There is no indication in the incident report that any sobriety testing was done with Mr. Pearson. There is no indication in the incident report that Mr. Pearson was being arrested for any reason,” the suit stated.
“Officers Stiles Lerro and Ditmer would not permit Mr. Pearson to stay in the Marshall’s parking lot and wait for his girlfriend as intended, so Mr. Pearson requested a ride to his home in Philadelphia. Officers Stiles Lerro and Ditmer declined to take Mr. Pearson home. Though Mr. Pearson was not being arrested or detained, he was transported by Officer Lerro, with the direction and/or approval of Officer Stiles, to the bus station on West Chester Pike and Sproul Road, so that he could then get a second bus to 69th Street [Station in Upper Darby] that would then take him to Philadelphia. Officers Stiles, Lerro and Ditmer knew that Mr. Pearson was visibly intoxicated.”
The suit continued that dashboard camera audio of the transport showed Mr. Pearson is slurring, mumbling and speaking incoherently, repeatedly asking Officer Lerro where he was taking him, that he wanted to go home to Philadelphia and that his girlfriend was going to be mad that he was not waiting for her at the Marshall’s parking lot.
“Despite Mr. Pearson’s highly-intoxicated and vulnerable condition, Officer Lerro left him at a bus stop in the middle of West Chester Pike, a busy, 40-mile-per-hour [speed limit], four-lane highway separated by a grass median, on a cold, dark evening in November. Officer Lerro left Mr. Pearson at the bus station at 7:59 p.m. and began to pull away. Officer Lerro was barely a couple of blocks away when he heard ‘a loud thud behind’ his vehicle at 8:06 p.m., less than seven minutes after leaving Mr. Pearson at the bus station. Officer Lerro made a U-Turn and observed Mr. Pearson face down on the grass median, unresponsive. The loud thud Officer Lerro heard was Mr. Pearson being fatally struck by an SUV as he attempted to cross West Chester Pike,” the suit said.
“Mr. Pearson was transported by EMS to Lankenau Hospital in critical condition and pronounced dead at 8:59 p.m. The toxicology report established that Mr. Pearson had a blood alcohol concentration level of .238 at the time of his death, almost three times the legal limit of .08 permitted for driving while under the influence. Officers Stiles, Lerro and Ditmer knew that Mr. Pearson was highly-intoxicated and recklessly left him at a bus station in the middle of a major, four-lane highway with a 40-mile-per-hour speed limit, separated by a median, knowing he would be more likely to step into the roadway and be fatally struck and killed, than someone who was not in his intoxicated state. The training programs for handling intoxicated persons at Marple Township and Marple Township Police Department, created and enforced by Chief Graeff, Lieutenant Frank Hannigan, Lieutenant Sean Hannigan, Detective McGettigan, and Sergeant Coffin, were inadequate. Defendants were deliberately indifferent to the inadequacy of the training programs for handling intoxicated persons, which caused the indifference of Police Officers Stiles, Lerro and Ditmer to Mr. Pearson’s intoxication and need for assistance, resulting in his horrific and untimely death at 56 years old.”
In a Dec. 20 motion to dismiss elements of the complaint, the defendants countered that facts were only alleged against Officer Lerro, and not the defendant officers.
“Pearson’s claims are based on the actions of Officer David Lerro and Lerro alone. The plaintiff fails to aver action by any other officer on the scene; instead, plaintiff included in this complaint every single supervisor in the police department. In the case at bar, the plaintiff has failed to state any action at the scene by any defendant other than Lerro. Plaintiff sued multiple defendant police officers. Most serve Marple in a supervisory capacity (Chief Graeff; Lt. Frank Hannigan; Lt. Sean Hannigan; Sgt. Coffin; Det. McGettigan). Two are police officers were in the vicinity of the events underlying the complaint, but no actionable conduct is attributed to them (Stiles and Ditmer). The individual defendants are sued in both their individual and official capacities. They must each be dismissed in their individual capacities, as they did not take any action on the night in question that could be considered a violation of the Constitution (and in fact most were not even present). The claim against these defendants in their official capacities must be dismissed as such claims are duplicative of the suit against the municipality. The claim against the Marple Township Police Department should be dismissed as the department is simply a branch or agency of the Township. It is not a stand-alone governmental agency under Pennsylvania law. That will leave Officer Lerro and Marple Township as the remaining defendants in this case,” the motion stated.
“While most of the defendants have been properly served, two defendants were not: Morgan Ditmer was a police officer, but she is no longer. She is now a full time, stay-at-home mother. Service was attempted by leaving a copy of the complaint and summons at the Township building. This attempt at service at the Township does not conform to the rules (service at residence or regular place of business). The second is David Lerro, who now resides in Florida. No service has been completed on him. Plaintiff also demands numerous types of damages. Two of those damage requests should be dismissed. First, the claim for punitive damages must be dismissed. Punitive damages are not recoverable against a municipal entity under federal or state law. Second, the claim for ‘injunctive relief to correct government procedure’ must be dismissed. There is no count for injunctive relief and thus any claim for such relief is misplaced. If monetary damages are warranted, such can be awarded consistent with the law.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald A. McHugh partially granted the dismissal motion in a Feb. 6 order, and outlined his rationale as to each respective defendant and claim.
“The motion is granted as to the Marple Township Police Department. A Section 1983 claim against a police department, as a sub-unit of a municipality, is construed as a claim against the municipality itself. Here, the defense does not contest that the complaint states a claim against Marple Township. The motion is granted as to all individual defendants in their official capacities. ‘State officers sued for damages in their official capacity are not ‘persons’ for purposes of [a Section 1983] suit because they assume the identity of the government that employs them.’ [Hafer v. Melo, (1991)],” McHugh said.
“The motion is granted as to defendants Graeff, Frank Hannigan, Sean Hannigan, McGettigan and Coffin in their personal capacities. Dismissal is without prejudice and plaintiff may amend the complaint if she can plausibly, consistent with Federal Rule of Civil Procedure 11, plead specific facts alleging these defendants’ personal involvement in the alleged violation of Mr. Pearson’s constitutional rights. The complaint alleges a ‘failure to train’ theory of liability against these defendants, but failure to train is a theory of municipal liability under Section 1983, not individual liability. Further, the alleged facts do not ‘allow the court to draw the reasonable inference that each defendant knew of and acquiesced to the alleged misconduct.”
Furthermore, McHugh denied the dismissal motion as to defendants Lerro, Stiles and Ditmer in their personal capacities.
“Plaintiff has supplied sufficient evidence of proper service upon defendants Lerro and Ditmer to avoid dismissal under Federal Rule of Civil Procedure 12(b)(5). And although it is a close question, by virtue of their alleged involvement in the decision-making process, the complaint sets forth facts sufficient to state a Section 1983 claim against Stiles and Ditmer under the ‘state-created danger’ theory, first recognized by the Third Circuit in Kneipp v. Tedder,” McHugh said.
“To state a claim under the state-created danger theory of liability, a plaintiff must plead four elements: ‘[1] Foreseeable and fairly direct harm; [2] Action marked by a degree of culpability that shocks the conscience; [3] A relationship with the state making the plaintiff a foreseeable victim, rather than a member of the public in general; and [4] An affirmative use of state authority in a way that created a danger, or made others more vulnerable than had the state not acted at all.’ The defense does not contest that these elements have been pled against Lerro, and the allegedly similar conduct of Stiles and Ditmer can plausibly meet these elements as well.”
Finally, McHugh granted the motion as to the punitive damages claim, dismissing such a claim against Marple Township with prejudice (since municipalities are not susceptible to punitive damages) and against defendants Lerro, Stiles and Ditmer without prejudice, subject to reinstatement if discovery reveals facts sufficient to meet the demanding legal standard for a punitive damages claim, in addition to dismissing the claim for injunctive relief.
“Accordingly, pursuant to this order, the following defendants remain as potentially liable parties in this case: (1) Marple Township; (2) Lerro, in his personal capacity; (3) Stiles, in his personal capacity; (4) Ditmer, in her personal capacity; and (5) John and Jane Does, in their personal capacities,” McHugh said.
For a count of civil rights deprivation under the Civil Rights Act of 1871, the plaintiff is seeking compensatory damages, nominal damages, punitive damages, attorney’s fees, costs and expenses related to this action, injunctive relief to correct government procedure to prevent future injury and all such other relief as the Court deems just.
The plaintiff is represented by Joseph L. Messa Jr. and Alaina A. Gregorio of Messa & Associates, in Philadelphia.
The defendants are represented by Andrew J. Bellwoar of Bellwoar Kelly, in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04444
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com