J. Cook v. P.O. Vernachio, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jacqueline Cook, Appellant v. P.O. Vernachio, Catherine Lint and Danielle Butler Hurst BEFORE: : : : : : : : No. 1025 C.D. 2007 Argued: October 29, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: May 14, 2008 Jacqueline Cook appeals from the order of the Philadelphia County Court of Common Pleas (common pleas) granting summary judgment in favor of Philadelphia police officers Anibal Vernacchio,1 Catherine Lint, and police detective Danielle Butler Hurst. On appeal, Cook contends that she submitted in opposition to defendants motion sufficient evidence demonstrating genuine factual dispute as to the actions of the police during the arrest of Cook s children and prosecution of charges against the children and Cook. Thus, Cook asserts that she is entitled to a trial on her claims for malicious prosecution and abuse of process, false arrest/imprisonment, and conspiracy, as well as the claims, asserted 1 It appears that Officer Vernacchio s name is misspelled in the caption. on behalf of her children as well as herself, for defamation and false light, and the claims on behalf of her children for assault and battery. Common pleas recited the following facts, based upon deposition testimony and the criminal trial of Ms. Cook, in the light most favorable to Cook. On the morning of October 26, 2004, Cook was walking with her three sons, Malik, Jamir, and Jhaquil (then ages 14, 10 and 6, respectively), intending to take the younger two to their elementary school before accompanying her elder son to his dentist s appointment. Cook then stepped into a store to purchase some tokens, encouraging the boys to go on ahead. School had already started for the day, and, as the boys walked on without their mother, they were confronted by police officers Vernacchio and Lint, who questioned them about why they were not in school. In response to the children s explanation that they were on their way to school, the police officers stated that they would take them, and asked them to get into the cruiser, which the children refused to do. The officers then attempted to place Malik and Jamir in the car, but they physically resisted. By this time, Cook had arrived on the scene and attempted to explain to the officers that she was taking the younger boys to school and Malik to a dentist s appointment. Nonetheless, the children were handcuffed and put into the cruiser.2 After Jhaquil opened one of the car s doors, Malik attempted to escape by running up the street, still handcuffed, and he was subsequently apprehended. He and Jamir were taken to a police station and each child was charged with simple assault, resisting arrest, 2 We note that Section 1341(c) of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1341(c), authorizes municipal police to arrest or apprehend a child who fails to attend school in compliance with state statutory provisions or who is incorrigible, insubordinate, or disorderly during attendance at school or on his way to or from school. 2 escape and conspiracy to escape. The children were released late that night, and they eventually accepted Accelerated Rehabilitative Disposition (ARD), in order to avoid a criminal trial and allow their records to be expunged. In the meantime, in late November 2004, Detective Butler Hurst completed an affidavit of probable cause for Cook s arrest. A warrant of arrest was subsequently issued, charging her with disorderly conduct, reckless endangerment, obstruction of justice, and corrupting the morals of a minor. All of the charges against Cook were eventually dropped, with the exception of the charge of corrupting the morals of a minor. A municipal court trial judge found Cook not guilty of this crime on March 11, 2005. Nonetheless, Cook apparently lost her job after her employer conducted a routine criminal background check and discovered that she had been arrested. Cook, in her own right, and on behalf of her children Jamir and Malik, filed the present action. The amended complaint lists claims for assault and battery, malicious prosecution and malicious abuse of process, false imprisonment and false arrest, defamation, invasion of privacy, and common law conspiracy/concert of action, without specifying which pertain to the children alone, herself alone or to all of them. Cook sought punitive damages, alleging that the officers conduct was outrageous, malicious, wanton, willful, and reckless and intentionally designed to inflict harm upon the plaintiffs. First Amended Complaint, para. 71. In their motion for summary judgment, Officers Vernacchio and Lint and Detective Butler Hurst assert that: [t]he plaintiffs have produced no evidence of any medical, psychological, or psychiatric treatment as a result of their arrests on October 26, 2004 (Malik Aguilar and Jamir Cook) and November 29, 2004 (Jacqueline Cook)[;] 3 [t]he plaintiffs have produced no evidence of malice or willful misconduct on the part of the defendants, Police Officer Vernacchio, Police Officer Lint and Detective Butler-Hurst[; and] [t]he plaintiffs have produced no evidence that the defendants published false statements about the plaintiffs to third persons, other than among themselves and the District Attorney s Office, in the discharge of their official duties as law enforcement officers. Motion for Summary Judgment, paras. 27-29. On January 11, 2007, common pleas granted summary judgment in favor of the defendants, Vernacchio, Lint and Butler Hurst. In so ruling, the judge noted that [t]he plaintiffs have failed to produce any evidence that any of the defendants conduct constituted a crime, actual fraud, actual malice or willful misconduct. 3 Cook v. Vernacchio., ___Phila. ___(2007) (2007 Phila. Ct. Com. Pl. LEXIS 151) (Cook I), slip op. at 7. Following the entry of summary judgment, Cook filed the instant appeal, arguing that common pleas erred in granting the defendants summary judgment: (1) on Cook s personal claims for malicious prosecution, abuse of process, false arrest, as well as conspiracy to commit these torts, because genuine fact disputes exist as to whether the City arrested and prosecuted her without 3 Pennsylvania Rule of Civil Procedure No. 1035.2 states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 4 probable cause and brought the charges against her in order to divert attention from the officers misconduct; (2) on Cook s personal claims and those on behalf of her sons for defamation and false light because a fact dispute exists as to whether the officers levied the charges of criminal conduct against Cook and her sons knowing the falsity of the charges and publicized the charges with reckless disregard for their falsity; (3) on the claims asserted on behalf of her sons for assault and battery because a dispute of fact exists as to whether, despite the absence of evidence of any treatable injuries as recognized by common pleas, the boys suffered such physical pain, embarrassment and humiliation as to constitute cognizable damages.4 In reviewing the grant of summary judgment, our scope of review is plenary. We view the record in the light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Scalice v. Pa. Employees Benefit Trust Fund, 584 Pa. 161, 171-72, 883 A.2d 429, 435 (2005). In order to prevail on any of her claims, Cook must establish that the officers and the detective acted with actual malice or committed willful misconduct. This element must be established in order to overcome the immunity that generally attaches to a local government employee in the performance of her official duties. Immunity is conferred pursuant to Section 8545 of the Act popularly referred to as The Political Subdivision Tort Claims Act, which provides: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee 4 As appellees point out, insofar as the amended complaint could be construed as asserting each specified claim on behalf of Cook and her sons, the arguments developed in Cook s appeal brief only preserve challenges to the grant of summary judgment on the specific claims regarding the specific parties here listed. 5 which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. 42 Pa. C.S. § 8545. Section 8541 of the Act renders a local agency immune from liability for personal injuries, as follows: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. While Section 8542(b) specifies eight categories of negligent action that are exceptions to this general immunity,5 none of these exceptions apply to the conduct on which Cook bases her claims. 42 Pa. C.S. § 8542(b). However, in addition immunity is abrogated, with respect to local agency employees, for conduct which constitutes a crime, actual fraud, actual malice, or willful misconduct. Jones v. Philadelphia, 893 A.2d 837, 843 (Pa. Cmwlth. 2006) [citing Renk v. Pittsburgh, 537 Pa. 68, 641 A.2d 289 (1994) (footnote omitted)]. Hence, in this action against individual on-duty officers, in order to prevail against the summary judgment motion, Cook must demonstrate a genuine dispute over facts that establish actual malice or willful misconduct in the commission of the actions on which she bases her claims. Cook asserts that proof of the elements necessary to establish commission of the alleged intentional torts necessarily establishes willful misconduct. However, in Renk, our Supreme Court explicitly rejected this premise in the context of a lawsuit based upon police conduct. 537 Pa. at 76, 641 A.2d at 293. In Renk, the Court recognized that an assault amounts to an intentional 5 They are: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa. C.S. § 8542(b). 6 attempt to exercise an injurious force and that a battery is the completion of this attempt; and that, in general, willful misconduct, in which the actor either desires to cause an injury or knows that injury is substantially certain, has been equated with the term intentional tort. Id. at 75, 641 A.2d at 293. However, in the context of official police action, the Court also recognized that: A police officer may use reasonable force to prevent interference with the exercise of his authority or the performance of his duty. In making a lawful arrest, a police officer may use such force as is necessary under the circumstances to effectuate the arrest. The reasonableness of the force used in making the arrest determines whether the police officer s conduct constitutes an assault and battery. Id. at 76, 641 A.2d at 293. In addition the court noted that, in general, a claim of false arrest/imprisonment cannot prevail if the arrest and detention are based on probable cause, i.e., known facts and circumstances from personal observation or trustworthy information sufficient to warrant a reasonable belief that a person has committed or is committing a crime. But further, the Court ruled that, in an action against a police officer in the performance of his official duties, even if it is ultimately determined that probable cause was lacking, the element of willful misconduct occurs only if the officer intentionally arrested the person knowing he lacked probable cause to do so. Id. As recognized in Renk, the scope of proper police conduct during the process of arrest, detention, and assertion of criminal charges may encompass actions that, if committed by one citizen against another outside of the law enforcement context, could constitute acts of willful misconduct justifying intentional tort claims. However, in the context of official police action, where 7 immunity bars liability for damages incidental to appropriate police conduct, willful misconduct cannot be inferred merely from the use of physical force or from an arrest ultimately determined to have occurred without probable cause. Rather, in order to sustain claims for assault and battery based on a police officer s official conduct, a plaintiff must establish more than that the officer intended to use physical force; she must establish that the officer intended to use excessive force. Similarly, to establish the element of willful misconduct in order to sustain a claim for false arrest/imprisonment, a plaintiff must show not only that the officer lacked probable cause to arrest but that he intentionally arrested the plaintiff knowing that he lacked probable cause. Renk, 537 Pa. at 77, 641 A.2d at 294. See also Ferber v. Philadelphia, 661 A.2d 470, 476 n.10 (Pa. Cmwlth. 1995). Logically this heightened standard regarding what constitutes willful misconduct in the context of the performance of police duties must extend to the full panoply of police activity including not only the physical acts associated with the arrest and detention but also the actions associated with charging a suspect with the commission of a crime, publicizing the charges and triggering a prosecution. Insofar as these are all appropriate police actions, a similar heightened culpability must be associated with those actions in order to qualify as malice or willful misconduct sufficient to lift immunity. Thus, for purposes of Cook s remaining claims for malicious prosecution, abuse of process, defamation, false light and conspiracy, it must be shown not merely that defendants intended to accuse and prosecute but that they did so with actual malice, personally believing that probable cause was lacking. In its opinion, common pleas described the evidence mustered by the plaintiffs in support of their claims: In this case, the plaintiffs have failed to produce any evidence that any of the defendants conduct constituted 8 a crime, actual fraud, actual malice or willful misconduct. The minor plaintiffs, Malik and Jamir admit that they were not in school when they were first confronted by Police Officers Vernacchio and Lint. They also admit they did not get in the police car when told to do so, so that the police officers could take them to school. Malik further admits that, after being handcuffed and placed in the police car, he ran away. Adult plaintiff Jacqueline Cook admits that she tried to pull Malik s hand away from Police Officer Vernacchio as he tried to control Malik. Detective Butler-Hurst reasonably relied on the information provided by Police Officers Vernacchio and Lint regarding the events that had occurred that morning on October 26, 2004. And based on her review of the evidence provided to her by the police officers, she initiated charges to be issued against Malik and Jamir that day, and a warrant to be issued against Jacqueline Cook. Plaintiffs have not adduced any evidence that would support a finding of willful misconduct on the party [sic] of any defendant. Cook I, slip op. at 7-8. Our review of the record substantiates this description. In deposition testimony, Malik admitted he was walking to school on the relevant day at 9:30 a.m. and further admitted to struggling with the officers and running from them. Jamir admitted to walking to school that morning at 9 or 9:30 a.m., even though school began at 8:45 a.m. and essentially acknowledged that he and his brothers did not get in the police car when asked to do so. For her part, Jacqueline Cook admits that Malik was trying to pull away from the officer and that she tried to move Malik s hand away from the officer during the course of his arrest. Even accepting every averment and allegation by Cook as true and considering the record in the light most favorable to her claims, the fact remains that the behavior to which Cook and her sons admit nullifies her ability to establish the element of willful misconduct in any of the defendants actions. 9 Initially we note that, in support of the assault and battery claims, the amended complaint only alleges that the officers used offensive and unpermitted touching and intrusions upon their persons and body. See First Amended Complaint, paras. 23-25. This type of activity happens during most arrests and is not necessarily unwarranted. The record contains no indication that the defendants used excessive force in arresting Malik and Jamir (Jacqueline Cook turned herself into the authorities), or that they lacked probable cause to arrest. Accepting, as the boys contend, that the officers used physical force in making the arrests (e.g., the boys testified to being thrown up against the wall, arm twisting), unless they intentionally used excessive force, they have not engaged in willful misconduct abrogating the immunity defenses of the Judicial Code. See Renk, 641 A.2d at 291. The plaintiffs descriptions of their own conduct at the time of arrest and of the force used in making the arrests, particularly coupled with their lack of physical injury, permits no reasonable conclusion that the force was excessive. Moreover, the record appears to show probable cause for the arrest of Cook, Malik and Jamir, since the children admit that they refused to get in the cruiser (despite the fact that school had started for the day), Malik admits to physically resisting the officers, and Cook herself attempted to remove Malik from arrest by Officer Vernacchio. Probable cause logically negates the malice required for claims of malicious prosecution, malicious abuse of process, false imprisonment, and false arrest to stand. See, e.g., McGriff v. Vidovich, 699 A.2d 797 (Pa. Cmwlth. 1997); Cassidy v. Abington Township, 571 A.2d 543, 545 n.1 (Pa. Cmwlth. 1990). In addition, plaintiffs have submitted nothing in opposition to summary judgment that would support their claims for defamation and invasion of privacy, since plaintiffs admitted conduct supporting at least some of the charges 10 against them. Therefore, plaintiffs cannot prevail in their claim of conspiracy to commit these torts. For all of the above reasons, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Jacqueline Cook, Appellant v. P.O. Vernachio, Catherine Lint and Danielle Butler Hurst : : : : : : : No. 1025 C.D. 2007 ORDER AND NOW, this 14th day of May, 2008, the order of the Court of Common Pleas of Philadelphia County in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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