SCRANTON – A plaintiff who alleged liability against the City of Wilkes-Barre, two of its police officers and other defendants for injuries that she allegedly suffered – when, as a pedestrian crossing the street in that city, she was struck by a car driven by a suspect who was fleeing arrest from officers of the Wilkes-Barre Police Department – has passed away.
Angela Velasquez first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Jan. 24, 2022 versus the City of Wilkes-Barre, Police Officer Twerdy, Police Officer John Doe (c/o Wilkes-Barre Police Department), Unique L. Jones, Terdell Wees, all of Wilkes-Barre, and the Pennsylvania Financial Responsibility Assigned Claims Plans, of Philadelphia.
“On or about Feb. 10, 2021, at approximately 3:30 p.m., plaintiff Angela Velasquez was a pedestrian who was walking across South Main Street at its intersection with Northampton Street, in Wilkes-Barre, Pennsylvania. The plaintiff was walking in a crosswalk and had a green traffic signal for her direction of travel,” the suit said.
“On the aforesaid date and time, defendant Jones was operating a 2008 Chevrolet Impala owned by defendant Wees on Northampton Street in the vicinity of its intersection with South Main Street. Defendant Jones was traveling at a high rate of speed because defendant Jones was being pursued by police officers operating cruisers owned by defendant City and operated by defendants Twerdy and Doe who were involved in a high-speed police chase of defendant Jones.”
The suit claimed the chase was initiated by the named police officer defendants and others.
“During the high speed chase, defendant Jones, operating the vehicle of defendant Wees, violently struck the pedestrian, plaintiff Velasquez, in the intersection at South Main and Northampton Streets. The violent collision between the vehicle owned by defendant Wees and operated by defendant Jones and the plaintiff pedestrian was the direct result of the high speed chase that was improperly initiated and maintained by defendants Twerdy and/or Doe,” the suit stated.
The Wilkes-Barre defendants filed an answer in the case on May 2, 2022, denying liability for the plaintiff’s injuries and countering that the case should instead be litigated in state court.
“The City of Wilkes-Barre, Police Officer Twerdy and Police Officer John Doe seek dismissal of all claims against them as a matter of law. For the reasons set forth in defendants’ brief to be filed in accordance with Middle District of Pennsylvania Local Rule 7.5, the complaint fails to state a claim against Police Officer Twerdy and Police Officer John Doe under which relief may be granted pursuant to a 42 U.S.C. Section 1983 state-created danger theory because (1) Plaintiff has not set forth a viable due process violation to establish any constitutional injury; and (2) Plaintiff’s conclusory allegations are inaccurately pled and insufficient to establish a state-created danger,” the answer stated.
“Further, Police Officer Twerdy and Police Officer John Doe are entitled to qualified immunity as to plaintiff’s federal civil rights claims asserted. The City of Wilkes-Barre, Police Officer Twerdy and Police Officer John Doe move this Honorable Court to enter an order dismissing Count IV of the complaint with prejudice pursuant to Rule 12(b)(6). Defendants further move the Court to decline to exercise supplemental jurisdiction over the state law claim against them present in Count I of the complaint, so that the state law claim might be transferred to the Luzerne County Court of Common Pleas, which is the state court of appropriate jurisdiction and venue in accordance with Pennsylvania Rule of Civil Procedure 2103(b).”
Plaintiff counsel replied to the defendants’ dismissal motion on May 13, 2022, countering that their denials of liability were not applicable to the events in this case.
“It is denied that moving defendants’ claims are meritorious. It is denied that defendants’ brief synopsis of a few paragraphs of the complaint fully and accurately characterizes the entire complaint. Contrary to the moving defendants’ contentions, the complaint does state a claim against the police officer defendants under which relief may be granted pursuant to a 42 U.S.C. Section 1983 state-created danger theory. Further, contrary to the moving defendants’ contentions, plaintiff Velasquez has set forth a viable due process violation establishing a constitutional violation,” the plaintiff’s reply stated, in part.
“By way of further denial, plaintiff Velasquez’s averments are properly pleaded, are not conclusory, are accurately pleaded and sufficiently establish a state-created danger. The moving defendants’ contentions to the contrary are baseless. The police officer defendants in this case are not entitled to qualified immunity. The theory of qualified immunity has no application in this case. Moving defendants are not entitled to any of the relief they seek.”
Nearly a year and a half after the start of the litigation, defendant Pennsylvania Financial Responsibility Assigned Claims Plans answered the complaint on July 14, 2023 and denied its allegations, mostly on the basis that they are instead directed to its co-defendants.
“Answering defendant believes and avers that the plaintiff has failed to state a claim upon which relief may be granted. Discovery is ongoing. Plaintiff’s complaint is broad and/or limited pursuant to the terms of the Pennsylvania Comparative Negligence Act. Plaintiff’s claims are or may be barred by the applicable statute of limitations. Discovery is ongoing. Plaintiff’s claims are broad and/or limited by the Pennsylvania Motor Vehicle Financial Responsibility Law and all applicable subparts, specifically those pertaining to the Pennsylvania Financial Responsibility Assigned Claims Plan,” per its affirmative defenses.
“Plaintiff may have failed to mitigate her damages. Some or all of the injuries claimed by the plaintiff to have been caused by answering defendant may have been pre-existing to the incident at issue. Discovery is ongoing. Plaintiff’s claims may be barred by the doctrine of res judicata. Plaintiff’s claims are barred and/or limited by the doctrine of release.”
On March 28, U.S. District Court for the Middle District of Pennsylvania Judge Julia K. Munley denied the dismissal motion from the Wilkes-Barre and police defendants – leading them to answer the complaint on April 17 and deny its charges, before providing 17 affirmative defenses on their own behalf.
“The plaintiff’s cause of action must be dismissed for plaintiff’s failure to do a substitution of death. The plaintiff’s cause of action is barred for failure to state a claim upon which relief can be granted, barred under all local, state and federal immunity statutes applicable to the answering defendants, barred under qualified immunity statutes, barred under the Doctrine of Comparative Negligence, barred under the Doctrine of Assumption of Risk, barred under the applicable statute of limitations and barred under and/or limited by the Pennsylvania Motor Vehicle Responsibility Law,” the defenses stated.
“The plaintiff’s cause of action is barred under the Doctrine of Proximal Cause, barred in that if the accident and resulting injuries occurred in the manner outlined in plaintiff’s complaint, then the accident and resulting injuries were caused by conduct by co-defendants or unnamed parties or entities, barred in that the plaintiff has failed to meet her burden of proving a state-created danger imposing liability on the defendants, barred for frivolous and scandalous allegations in the complaint, barred under all applicable Emergency Doctrines, barred under plaintiff’s failure to foreseeability, notice, culpability and lack of identifiable discreet class, barred for failure to identify and prove appropriate legally recoverable damages, barred under the Doctrine of Res Judicata and barred under the Doctrine of Release.”
UPDATE
On May 22, counsel filed notice with the Court that the plaintiff in this action had passed away, and requested that the administrator of her estate be substituted as the plaintiff in this case.
“Angela Velasquez, whose full legal name is Angela Marie Velasquez, and who is the plaintiff in this action, died on March 6, 2022. Angela Marie Velasquez died intestate. At the time of her death, decedent resided in Luzerne County, Pennsylvania. On Nov. 29, 2022, the Surrogate of Luzerne County issued Letters of Administration naming Jiavanni T. Velasquez as Administrator of the Estate of Angela Marie Velasquez. Jiavanni T. Velasquez, in his role as Administrator of the Estate of Angela Marie Velasquez, determined that it is in the best interests of the Estate to resume prosecuting this civil action and pursuing the legal rights and claims of plaintiff against the defendants,” the notice stated.
“Jiavanni T. Velasquez, in his role as Administrator of the Estate of Angela Marie Velasquez, hired the Law Offices of Geoffrey B. Gompers & Associates P.C. and Jeffrey R. Lessin & Associates P.C. to act as counsel of record for the Estate of decedent and to represent the Estate in prosecuting and pursuing the legal rights and claims of the plaintiff against defendants, and to resume and complete this lawsuit. Accordingly, Jiavanni T. Velasquez, as Administrator of the Estate of Angela Marie Velasquez, files this suggestion of death pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure, to inform the Court and all parties of the death of decedent. Jiavanni T. Velasquez, Administrator of the Estate of Angela Marie Velasquez, through the above-mentioned counsel, is preparing to file a motion for substitution of party, and will file the motion shortly forthwith. The motion will seek to substitute in Jiavanni T. Velasquez, Administrator of the Estate of Angela Marie Velasquez, as plaintiff in place of and substituting for Angela Velasquez, the individual who is now deceased.”
For multiple counts of negligence, state-created danger and statutory assigned claims plain benefits, the plaintiff is seeking damages in excess of $50,000.
The plaintiff is represented by Jeffrey R. Lessin, Dennis L. Friedman and Mark T. Richter of Jeffrey R. Lessin & Associates, plus Geoffrey B. Gompers of Gompers Law, all in Philadelphia.
The defendants are represented by James A. Doherty Jr. and Matthew J. Butler of Scanlon Howley & Doherty in Scranton and Michael J. Connolly of Marshall Dennehey Warner Coleman & Goggin, in Moosic.
U.S. District Court for the Middle District of Pennsylvania case 3:22-cv-00125
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com