05 JUL 2013 11:38 am K. PERMSAP ___________________________________ CARMELO SANTIAGO, : Plaintiff : : v. : : PO MATTHEW MCCARTHY, : Defendant : COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL JANUARY TERM, 2013 NO. 1297 .............................................................................. CARMELO SANTIAGO, Plaintiff : : : : : : : v. PO RICHARD NICOLETTI, Defendant COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL AUGUST TERM, 2011 NO. 2034 ORDER AND NOW, this day of , 2013, upon consideration of Defendants’ Motion for Summary Judgment, and Plaintiff’s response thereto, it is hereby ORDERED and DECREED that the Motion for Summary Judgment is DENIED. BY THE COURT: _________________________ , J. Case ID: 110802034 Control No.: 13060429 POPPER & YATVIN BY: Howard D. Popper, Esquire Identification No. 42860 230 South Broad Street, Suite 503 Philadelphia, PA 19102 (215)546-5700 Popper.yatvin@verizon.net ____________________________ CARMELO SANTIAGO, Plaintiff v. PO MATTHEW MCCARTHY, Defendant Attorney for Plaintiff : : : : : : : COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL JANUARY TERM, 2013 NO. 1297 .............................................................................. CARMELO SANTIAGO, Plaintiff v. PO RICHARD NICOLETTI, Defendant : : : : : : : COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL AUGUST TERM, 2011 NO. 2034 PLAINTIFF’S ANSWER TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, Carmelo Santiago, by and through his attorney, Howard D. Popper, answers Defendant’s Motion for Summary Judgment, as follows: 1. The Complaint is a document which speaks for itself. 2. The Amended Complaint is a document which speaks for itself. 3. The Complaint is a document which speaks for itself. 4. The January 24, 2013 motion to consolidate is a document which speaks for itself. Case ID: 110802034 Control No.: 13060429 5. The Order speaks for itself. 6. Denied, for the reasons set forth in the attached memorandum. 7. Denied, for the reasons set forth in the attached memorandum. 8. Denied, for the reasons set forth in the attached memorandum. 9. Denied, for the reasons set forth in the attached memorandum. 10. Denied, for the reasons set forth in the attached memorandum. 11. Denied, for the reasons set forth in the attached memorandum. WHEREFORE, Plaintiff prays this Honorable Court deny Defendants’ Motion for Summary Judgment. By: POPPER & YATVIN Howard D. Popper, Esquire 230 S. Broad Street, Suite 503 Philadelphia, PA 19102 (215)546-5700 Fax (215)546-5701 Popper.yatvin@verizon.net July 5, 2013 Attorney for Plaintiff Page 2 Case ID: 110802034 Control No.: 13060429 POPPER & YATVIN BY: Howard D. Popper, Esquire Identification No. 42860 230 South Broad Street, Suite 503 Philadelphia, PA 19102 (215)546-5700 Popper.yatvin@verizon.net ____________________________ CARMELO SANTIAGO, Plaintiff v. PO MATTHEW MCCARTHY, Defendant Attorney for Plaintiff : : : : : : : COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL JANUARY TERM, 2013 NO. 1297 .............................................................................. CARMELO SANTIAGO, Plaintiff v. PO RICHARD NICOLETTI, Defendant : : : : : : : COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL AUGUST TERM, 2011 NO. 2034 PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. MATTER BEFORE THE COURT Plaintiff, Carmelo Santiago, responds to Defendants’ Motion for Summary Judgment. II. STATEMENT OF QUESTIONS INVOLVED A. Must not Defendant McCarthy’s motion for summary judgment based upon the affirmative defenses of justification and immunity be denied where he has failed to plead such affirmative defenses? Suggested answer: Yes. Case ID: 110802034 Control No.: 13060429 B. Must not Defendants’ motion for summary judgment based upon the affirmative defense of immunity under the Tort Claims Act be denied as violative of the coordinate jurisdiction rule where a judge of co-equal jurisdiction rejected the precise argument in overruling preliminary objections to the amended complaint? Suggested answer: Yes. C. Must not Defendants’ motion for summary judgment based upon the affirmative defense of justification be denied where the claimed defense under Chapter 5 of the Crimes Code is only applicable to criminal prosecution? Suggested answer: Yes. D. Must not Defendants’ motion for summary judgment based upon the affirmative defense of justification under the Crimes Code be denied where the Defendants have failed to carry their burden to prove the defense as a matter of law and where there are disputed issues of material fact which preclude summary judgment? Suggested answer: Yes. III. FACTS On the afternoon of March 13, 2011, Carmelo Winans, an emotionally troubled young man,1 sat on the floor in an isolated corner of the kitchen2 of the house he shared with his father, Plaintiff Carmelo Santiago, and his grandparents,3 holding a small steak knife to his neck.4 As he sat on the 1 Deposition of Carmelo Santiago, Exhibit “A”, pp. 48-52. 2 Santiago Dep., Exhibit “A”, pp. 58; Photo of Kitchen, Exhibit “B” (C. Santiago Dep., Exhibit 1, p. 4); Crime Scene Unit Scene Diagram, Exhibit “C”. 3 Santiago Dep., Exhibit “A”, pp. 27, 28-29. 4 Santiago Dep., Exhibit “A”, p. 53, 58, 59, 60, 62, 76; Police Radio/911, Exhibit “D”, Track 10 (this audio CD is being filed separately). Page 2 Case ID: 110802034 Control No.: 13060429 floor, he kept repeating “god loves me”,5 but was not responding to his father’s entreaties.6 He was not threatening anyone and he was not engaging in any aggressive actions. His father, Plaintiff Carmelo Santiago, fearing his son might harm himself, phoned the police to come help his child.7 Defendant Nicoletti, a Philadelphia Police Officer, and his partner, Defendant Matthew McCarthy, arrived and entered the house in uniform, with guns drawn.8 As Nicoletti and McCarthy stood out of harm’s way,9 they could plainly see that Winans was emotionally troubled and in need of assistance, and that he did not present a threat to Nicoletti, his partner, or the other persons in the house.10 Shortly after they arrived on the scene, McCarthy called for an officer with a taser.11 Officer Jill Kerstetter a Crisis Intervention Trained (CIT) officer,12 equipped with a Taser, responded over 5 Santiago Dep., Exhibit “A”, pp. 51, 60, 61-62, 69, 72. 6 Santiago Dep., Exhibit “A”, pp. 60-61. 7 Santiago Dep., Exhibit “A”, pp. 62, 63-65, 67-68; Exhibit “D”, Track 8, 10. 8 Santiago Dep., Exhibit “A”, p. 69 9 Santiago Dep., Exhibit “A”, p. 71. 10 Santiago Dep., Exhibit “A”, pp. 71, 74-75, 11 Exhibit “D”, Track 12; Deposition of Richard Nicoletti, Exhibit “E”, p. 30. 12 Officer Kerstetter explained: “Crisis intervention training, also known as CIT training... It's primarily dealing with folks who have mental illnesses, are going through life crisis, and just basically being somebody there to talk with them, offer any assistance, offer any recommendations on how they can find assistance for the person who is going through issues or their family.” Deposition of Jill Kerstetter, Exhibit “F”, p. 8. Deputy Police Commissioner Richard Ross testified: “Crisis intervention trained officer. They are trained to deal with mentally disturbed individuals. And they receive training over and beyond what a normal patrol officer would get to deescalate situations particularly pertaining to people with mental health issues... [The purpose of having CIT trained officers is s]o that you can deescalate more situations in a (continued...) Page 3 Case ID: 110802034 Control No.: 13060429 police radio that she was en route.13 Nicoletti knew that Kerstetter was a taser equipped CIT Officer.14 Nicoletti also knew that Kerstetter was on her way and that she was about six blocks away.15 Plaintiff Carmelo Santiago stood in the kitchen doorway, behind the police, watching first in relief, then in increasing horror, as the events unfolded.16 As requested by Nicoletti and McCarthy, Carmelo Winans, put the knife down on the floor in the isolated corner of the kitchen where he stayed sitting.17 There was no emergency, there was no danger and the situation was de-escalating safely. Nicoletti heard PO Kerstetter, the Crisis Intervention Trained, taser officer, announce over police radio that she was pulling up in front of the house.18 PO Kerstetter, entered the house.19 When Kerstetter arrived, McCarthy left the doorway of the kitchen to speak with her and ask Officer Kerstetter to talk to Carmelo Winans.20 As Officer Kerstetter testified: “CIT training is just trying 12 (...continued) safe manner so as to ensure the safety of both the officer, the public and the person in question.”. Deposition of Richard Ross, Exhibit “G”, p. 25. 13 Exhibit “D”, Track 12. 14 Nicoletti Dep., Exhibit “E”, p. 70. 15 Nicoletti Dep., Exhibit “E”, 30, 31. 16 Santiago Dep., Exhibit “A”, pp. 71-73, 76, 87-88. 17 Santiago Dep., Exhibit “A”, p. 77; Ross Dep., Exhibit “G”, pp. 19-20, 28. 18 Nicoletti Dep., Exhibit “E”, 30. 19 Santiago Dep., Exhibit “A”, p. 73, 74, 75-76. 20 Kerstetter Dep., Exhibit “F”, p. 35. Page 4 Case ID: 110802034 Control No.: 13060429 to talk people into putting the weapon down.”21 Nicoletti testified that he is familiar with CIT and that “[i]t’s for situations like this.”22 Although Winans had put down the knife,23 and although CIT Officer Kerstetter was present,24 with a taser, Nicoletti decided to disregard explicit Police Department procedures,25 and basic common sense, and instead turn a calm situation into a free for all, where someone was certain to get hurt. Without warning to, or consultation with, his partner or the officer with the taser,26 Nicoletti left his position of safety to lunge at and jump on27 a confused young man who was no danger to any other person, and who had surrendered the knife with which he had been endangering only himself.28 Nicoletti was aware that Kerstetter had arrived on the scene, he saw his partner leave the doorway to speak with Kerstetter, and at least 5 seconds before he lunged at Winans, Nicoletti saw Kerstetter standing in the doorway to the kitchen,29 just feet from where Winans sat on the floor. 21 Kerstetter Dep., Exhibit “F”, p. 46. 22 Nicoletti Dep., Exhibit “E”, p. 30. 23 Santiago Dep., Exhibit “A”, p. 77, 79. 24 Santiago Dep., Exhibit “A”, p. 86-87. 25 Directive 136, Exhibit “I”; Directive 10, Exhibit “J”. 26 Nicoletti Dep., Exhibit “E”, p. 48-49; Kerstetter Dep., Exhibit “F”, p. 35. 27 Santiago Dep., Exhibit “A”, p. 77. 28 Santiago Dep., Exhibit “A”, p. 77, 79; Ross Dep., Exhibit “G”, pp. 19-20, 28. 29 Nicoletti Dep., Exhibit “E”, 32-33. Page 5 Case ID: 110802034 Control No.: 13060429 Although Kerstetter had actually entered the kitchen,30 Nicoletti senselessly created a crisis by throwing himself on the seated Carmelo Winans and he did so with his own gun in his hand.31 According to the Medical Examiner, Nicoletti shot Winans through Winans’ left palm,32 out the ulnar (outer) side of his left wrist,33 into the inside of Winans’ right thigh,34 out the outside of his upper right thigh,35 and across the room where the bullet struck a clock and the wall.36 Nicoletti had his gun the whole time.37 Winans had his hands up in front of his chest in a defensive position.38 The knife Winans had put down before Nicoletti lunged had been kicked clear by Officer Kerstetter,39 who pulled Nicoletti back as she stood by with her taser.40 Although he was not, Nicoletti claimed to be shot.41 30 McCarthy Dep., Exhibit “K”, p. 29. 31 Nicoletti Dep., Exhibit “E”, p. 33. 32 ME Photo of entry with wound to left palm with visible soot ring, Exhibit “L”. 33 ME Photo of exit wounds to left wrist, Exhibit “M”. 34 CSU Photo of entry wound to inside of right thigh and exit through outside upper right thigh, Exhibit “N”. 35 Findings and Report of Examination of the Medical Examiner, Exhibit “O” (Findings, § II.c.; Report of Examination, p. 3) 36 Kerstetter Dep., Exhibit “F”, 28, 29; Photo of Clock/Bullet Strike Exhibit “P”. 37 Santiago Dep., Exhibit “A”, p. 80. 38 Santiago Dep., Exhibit “A”, p. 80. 39 Kerstetter Dep., Exhibit “F”, p. 24. 40 Kerstetter Dep., Exhibit “F”, p. 29-30. 41 Santiago Dep., Exhibit “A”, pp. 77-78. Page 6 Case ID: 110802034 Control No.: 13060429 As he held Winans, Defendant McCarthy then fired two close range shots at Carmelo Winans,42 who sat on the kitchen floor unarmed, injured, defenseless, unresisting, taking no aggressive actions, just sitting there.43 Fatally wounded, Carmelo Winans died on the floor of his family's kitchen, before his father's eyes.44 Philadelphia Police Department Directive 10 (Exhibit “J”) states: II. A. Members of this department will exhaust all other reasonable means of apprehension and control before resorting to the use of deadly force. Deadly force will be used only as a last resort and then only to protect life, consistent with Department policy and the law. It is also the policy of this department that members will not unnecessarily or unreasonably endanger themselves in applying these guidelines to actual situations. B. Police officers shall not use deadly force against another person unless they reasonably believe they must protect themselves or another person present from imminent death or serious bodily injury. ... E. Police officers should ensure their actions do not precipitate the use of deadly force by placing themselves or others in jeopardy by taking unnecessary, overly aggressive, or improper actions. Philadelphia Police Department Directive 136 (Exhibit “I”) states: I. A. The main objective when handling a “Severely Mentally Disabled Person” (SMDP) is to aid and protect the interests of the SMDP, innocent bystanders, and family members in the immediate area, without compromising the safety of all parties concerned, including the police officers. This is best accomplished by DE-ESCALATING THE INCIDENT AND CONTAINING AND ISOLATING the individual. [emphasis in original] 42 Santiago Dep., Exhibit “A”, pp. 77-78. 43 Santiago Dep., Exhibit “A”, p. 78. 44 Santiago Dep., Exhibit “A”, p. 78. Page 7 Case ID: 110802034 Control No.: 13060429 B. Time is of no importance when handling an SMDP. Aggressive action will not be taken by police personnel, unless there is an immediate threat to life or physical danger to the SMDP, the police, or other civilians present. NOTE: People with mental illnesses are usually frightened, and want to get away, not attack. [emphasis in original] III. A. It is important for the first responding officers to use caution, evaluate the situation, attempt to de-escalate the situation through communication, wait for a back-up, and await the arrival of a patrol supervisor before taking any action, barring a threat to life. B. Retreating or re-positioning is not a sign of weakness or cowardice by an officer; it is often a tactically superior police procedure rather than the immediate use of force. NOTE: People with mental illnesses are usually frightened, and want to get away, not attack. C. The responsibility for containing and/or transporting an SMDP should be a team effort. This effort will consist of the necessary number of police officers and a patrol supervisor and, when safe and deemed necessary by the scene commander, any family members at the scene. D. The initial responding police officer should attempt to de-escalate the situation through communication and isolate and contain the SMDP to the best of his/her ability until the arrival of a patrol supervisor. Remember, time is of no consequence. Page 8 Case ID: 110802034 Control No.: 13060429 IV. ARGUMENT Summary Judgment Standard The Pennsylvania Supreme Court has repeatedly confirmed that in a motion for summary judgment the facts are to be read in the light most favorable, not least favorable, to the non-moving party: In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party... [T]he court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005)(citations omitted). "Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law... When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment." Atkovitz v. Gulph Mills tennis Club, 812 A.2d 1218, 1221-1222 (Pa. 2002). “All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.” Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 553-554, 981 A.2d 145, 154 (Pa. 2009). See also Kingston Coal v. Felton Mining, 690 A.2d 284, 287 (Pa. Super. 1997) ("All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases."). Moreover, only the jury is empowered to pass on matters of credibility. The law in Pennsylvania is long-standing and clear: “the burden to establish the absence of a genuine issue of material fact is squarely on the movant...” Garcia v. Savage, 402 Pa. Super. 324, 328, 586 A.2d 1375, 1377 (Pa. Super. Ct. 1991). See also Stimmler, supra (“the party who brought Page 9 Case ID: 110802034 Control No.: 13060429 the motion has the burden of proving that no genuine issue of fact exists.”) quoting Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900, 902-03 (Pa. 1989) (emphasis added by the Supreme Court). Moreover, as to the affirmative defenses of justification and immunity, it is Defendants’ burden to establish the defense as a matter of law. Staub v. Toy Factory, Inc., 2000 PA Super 87, P9, 749 A.2d 522, 527 n. 8 (Pa. Super. 2000) (“For summary judgment purposes, affirmative defenses are generally decided under Pa.R.Civ.P. 1035.2(1), where it is the moving party's burden to establish the defense as a matter of law.”).45 45 Without pinpoint citation, Defendants cite Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 670 A.2d 173 (1996), appeal denied. 681 A.2d 178 (1996), and Reimer v. Tien, 356 Pa. Super. 192, 514 A.2d 566 (1986) for the proposition that “it is for the court to determine, in the first instance, whether the actor's alleged conduct can reasonably be regarded as so extreme and outrageous as to permit recovery.” Defendants’ Memorandum (“D.M.”) p.7, 9. It is always for a court deciding summary judgment to decide whether there are material facts sufficient to establish the claim. Hunger makes no mention of any unique summary judgment standard for infliction of emotional distress claims, and instead simply describes the traditional rule on summary judgment that “the evidence must be viewed in the light most favorable to the non-moving party, and he must be given all the reasonable inferences created by his evidence.” 670 A.2d at 174. The case involved the dismissal of an at-will employee who falsely reported his employer for a hazardous materials violation. Reimer arises not from summary judgment, but the grant of a motion for non-suit as to one defendant and a directed verdict for another defendant at trial. The case involved the conditions at a Caribbean medical school and the failure of an administrator to respond to refund requests of student who withdrew her enrollment after 11 days. Under those circumstances, the Court found no intentional infliction of emotional distress, stating: “The liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” 514 A.2d at 569-70, quoting the Restatement. Again, the decision does not set out any unique standard for resolving infliction of emotional distress claims, and instead simply describes the traditional rule on motions for non-suit and directed verdict that: A judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him together with all reasonable inferences of facts arising therefrom, and any conflict with the evidence must be resolved in his favor; when a compulsory non-suit is entered[; l]ack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement[; ...] [u]nless there are no conflicting inferences to be drawn it is far (continued...) Page 10 Case ID: 110802034 Control No.: 13060429 The testimony of defendants, or even disinterested witnesses, even if uncontradicted, may not be the basis of a grant of summary judgment. Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Garcia, 402 Pa. Super. at 326, 586 A.2d at 1375, 1378, Godlewski v. Pars Mfg. Co., 597 A.2d 106, 110 (Pa. Super. 1991); Henninger v. State Farm Ins., 719 A.2d 1074, 1077 (Pa. Super. 1998). Under Pennsylvania law, only the jury is empowered to pass on matters of credibility. Summary judgment may not be granted where it requires the unquestioned acceptance of the testimony of the moving party's witnesses. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa. Super. 291, 467 A.2d 330, 334 (Pa. Super. 1983) (citing Nanty-Glo). Accordingly, testimonial evidence which contradicts evidence relied on by Plaintiff, or the reasonable inferences therefrom, may not be considered. A. Defendant McCarthy’s Motion for Summary Judgment Based upon the Affirmative Defenses of Justification and Immunity must Be Denied Where He Has Failed to Plead Such Affirmative Defenses. The Complaint with notice to defend within twenty days was filed against Defendant McCarthy on January 15, 2013. Exhibit “Q”. Service was made on January 17, 2013. Exhibit “R”. Despite several reminders to his counsel that the pleadings were still open, including in two emails and in an extraordinary relief petition (Exhibit “S”, collectively), Defendant McCarthy has never 45 (...continued) better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law[; and f]inally, a non-suit may only be entered where the facts and circumstances lead unerringly to but one conclusion,” and a “ judge may direct a verdict for a plaintiff only if there are no facts upon which a jury could properly find for the defendant[; i]f there is a conflict of evidence, and the conflict provides a basis upon which a jury could possibly render a verdict for the party against whom the directed verdict is sought, the case must go to the jury. 514 A.2d at 568 (internal citations and quotations omitted]. Page 11 Case ID: 110802034 Control No.: 13060429 filed an Answer. See Docket. Pennsylvania Rule of Civil Procedure 1030, relating to “New Matter”, provides: (a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading "New Matter". A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. (b) The affirmative defenses of assumption of the risk, comparative negligence and contributory negligence need not be pleaded. Emphasis added. “Governmental immunity is an affirmative defense which is required to be pleaded as new matter.” Beaver v. Coatesville Area Sch. Dist., 845 A.2d 955, 960, 2004 Pa. Commw. LEXIS 230 (Pa. Commw. Ct. 2004). See also Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814, 816, 1985 Pa. LEXIS 292 (Pa. 1985) (“Immunity from suit is an affirmative defense which must be pleaded under new matter”). Pursuant to Pennsylvania Rule of Civil Procedure 1032: (a) A party waives all defenses and objections which are not presented either by preliminary objection, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b), the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the objection of failure to state a legal defense to a claim, the defenses of failure to exercise or exhaust a statutory remedy and an adequate remedy at law and any other nonwaivable defense or objection. “Affirmative defenses are compulsory and therefore must be timely pled or they are forever lost. “ Coldren v. Peterman, 2000 PA Super 364, 763 A.2d 905, 909, 2000 Pa. Super. LEXIS 3418 (Pa. Super. Ct. 2000). Page 12 Case ID: 110802034 Control No.: 13060429 Here, Defendant McCarthy has never even filed an answer, let alone new matter with affirmative defenses. Accordingly, he cannot rely upon unpled affirmative defenses for summary judgment and his motion should be denied in all respects. B. Where a Judge of Co-equal Jurisdiction Rejected the Precise Argument in Overruling Preliminary Objections to the Amended Complaint, Defendants’ Motion for Summary Judgment Based upon the Affirmative Defense of Immunity under the Tort Claims Act must Be Denied as Violative of the Coordinate Jurisdiction Rule. On January 10, 2012, Defendant Nicoletti filed preliminary objections to Plaintiff’s Amended Complaint presenting, inter alia, the issue: D. Should Plaintiff's claim in Count II fail as a matter of law because claims of negligence are barred by the Political Subdivision Tort Claims Act ("Tort Claims Act"), and a claim for negligent infliction of emotional distress does not fall into any exceptions enumerated by the statute? Defendant Nicoletti’s Preliminary Objections to Amended Complaint (Exhibit “T”, attached), unnumbered page 2 of Memorandum. This argument was rejected by Judge Annette Rizzo, who overruled the preliminary objections. Exhibit “U”.46 46 Also overruled were Nicolletti’s further preliminary objections: A. Should the allegation in Count I. that Officer Nicoletti shot himself on purpose, thereby manifesting the intent required for the tort of intentional infliction of emotional distress, be disregarded because it is a conclusion of law? B. Should Plaintiffs claim in Count I fail as a matter of law because he cannot demonstrate Officer Nicoletti intended or was substantially certain Officer McCarthy would fatally shoot Plaintiff's son? C. Should Plaintiff's claim in Count I fail as a mailer of law because it was the affirmative acts of Officer McCarthy which caused Plaintiff's harm, and Defendant Nicoletti cannot be held liable for the tortuous conduct of his coworker? Exhibit “T”. Page 13 Case ID: 110802034 Control No.: 13060429 Defendant Nicoletti’s argument in support of his claim in the instant summary judgment is word-for-word identical to the argument he made in his preliminary objections. Compare Exhibit “T”, unnumbered pages 6-7, to the instant Memorandum in Support of Motion for Summary Judgment, pp. 8-9. No new facts are alleged. Plaintiff responded to the preliminary objections noting that Nicoletti could be found to have acted with willful misconduct. See discussion, infra.47 The immunity of individual government employees, such as police officers like Nicoletti, can be abrogated when "it is judicially determined that the act of the employee caused the injury and that such act constituted ... willful misconduct . . ." 42 Pa.C.S. §8550 (emphasis added). In overruling Nicoletti’s preliminary objections, the Court had to have accepted this, plaintiff’s sole argument in response to this immunity claim. Under these circumstances, Nicoletti’s rehashed motion is clearly precluded by the coordinate jurisdiction rule. The coordinate jurisdiction rule "stands for the proposition that 'judges of coordinate jurisdiction sitting in the same case should not overrule each other's decisions.'" Zane v. Friends Hospital, 2001 PA Super 64, 770 A.2d 339, 340 (Pa. Super. 2001), app. granted in part, 566 Pa. 322, 781 A.2d 93 (2001) (coordinate jurisdiction rule was violated where second judge failed to enforce discovery order of predecessor judge in the same case). One purpose of this rule is to prevent forum shopping by allowing the same issue to be repeatedly raised before different judges of the same court. Baysmore v. Brownstein, 2001 PA Super 97, 771 A.2d 54, 58 (Pa. Super. 2001). The coordinate jurisdiction rule is "sound 47 Because Defendants have chosen to try to resurrect some of the same arguments raised in preliminary objections, Plaintiff must perforce reiterate some of the same responses. Obviously, reiterating prevailing argument is not the same as Defendant recycling a motion verbatim, but seeking a different ruling. Page 14 Case ID: 110802034 Control No.: 13060429 jurisprudence based on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy and efficiency." Commonwealth v. Starr, 541 Pa. 564, 573, 577, 664 A.2d 1326, 1331, 1333 (1995). The rule also falls within the generalized ambit of the "law of the case" doctrine. Id. Defendants present no new facts, and not even a single word of new legal argument. The decision rendered on the matter on preliminary objections is dispositive and binding, and the motion for summary judgment on this ground must be denied. Moreover, even if the motion for summary judgment based upon the affirmative defense of immunity under the Tort Claims Act were not so barred, the motion would still fail, because a reasonable jury could find that Nicoletti’s acts constituted willful misconduct, thereby abrogating his immunity. As noted above, it is Nicoletti’s48 burden to establish his affirmative defense of immunity as a matter of law. Staub v. Toy Factory, Inc., 2000 PA Super 87, P9, 749 A.2d 522, 527 n. 8 (Pa. Super. 2000). Yet, without discussion of any facts, Defendant Nicoletti baldly claims he is immune from Plaintiff’s negligent infliction of emotional distress claim pursuant to the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541 et seq. ("the Act"). However, the immunity of individual government employees, such as police officers like Defendant, can be abrogated when "it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct . . ." 42 Pa.C.S. §8550 (emphasis added). 48 As discussed in § A, McCarthy has not pled the affirmative defense of immunity. However, had he done so, he would still not be entitled to summary judgment, because a rational jury can find that his actions in using deadly force against the unresisting, unarmed, seriously injured Carmelo Winans constituted willful misconduct. See this section and § D, infra. Page 15 Case ID: 110802034 Control No.: 13060429 In 1994, the Supreme Court of Pennsylvania clarified the standard for willful misconduct in Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994). The issue in Renk was whether the City of Pittsburgh must indemnify a police officer who had been found liable for committing state torts at a federal court trial. The case turned on whether the officer had committed "willful misconduct." If he had, then the city need not indemnify him. See 42 Pa.C.S. §8550. The court stated: In this case, it is unclear whether the jury in the federal action determined that [Officer] Renk intentionally used excessive force in arresting Laney, or only that he intentionally used force. Similarly, the jury's verdict does not resolve the issue of whether Renk intentionally arrested Laney knowing that he lacked probable cause to do so, or only that he lacked probable cause to make the arrest. Renk, 641 A.2d at 299. In the wake of Renk, courts have made clear that the liability of officers (and the unavailability of immunity) is established where, as in this case, the officers engaged in misconduct and did so intentionally. For example, in Kuzel v. Township of North Huntingdon, 658 A.2d 856, 860 (Pa. Commw. 1995), a case involving a wrongful discharge, the Commonwealth Court stated that in Renk, "In effect the Supreme Court found that ‘willful misconduct,' as used in 42 Pa. C.S § 8550, means ‘willful misconduct aforethought.' Because of our Supreme Court's interpretation of 42 Pa. C.S. § 8550, willful misconduct requires employees here to establish more than wrongful discharge to make the defense of official immunity unavailable to Krause. Employees also had to establish that Commissioner Krause knew or should have known that it was improper to terminate someone for receiving workmen's compensation and did so anyway." Emphasis added. Here, a rational jury can find that Defendant violated explicit police policies. See Exhibits “I” and “J”. Such violation of police policy demonstrates awareness of the nature and extent of the misconduct. In Morais v. City of Philadelphia, 2007 U.S. Dist. LEXIS 19619 *47 (E.D. Pa. Mar. Page 16 Case ID: 110802034 Control No.: 13060429 19, 2007),49 the court held that: a police officer's knowing disregard of directives not to use aggressive action could be found by a reasonable jury to be evidence of an intention to pursue a course of action he knew to be wrong. See In re City of Philadelphia Litigation, 938 F. Supp. 1278, 1290 (E.D. Pa. 1996) (suggesting that had the defendant deliberately disobeyed an order from a superior, such deliberate disregard might be found by a factfinder to be evidence--albeit not necessarily conclusive evidence of the defendant's intention to pursue a course of action he knew to be wrong). The willful misconduct averred in the Amended Complaint likewise falls squarely within the Renk standard. As the Supreme Court made clear in Renk, 641 A.2d at 293-294, a jury must be given the opportunity to determine not only whether the defendant officer committed a state law tort, but did so in such a manner as to constitute willful misconduct. Here, Defendant Nicoletti engaged in the intentional acts of needlessly diving onto Carmelo Winans, with his firearm in his hand, and because he did so in knowing violation of police policies, his actions constituted wilful misconduct. As discussed in § D, his actions were reckless, but even if only negligent, they are actionable because he took the actions constituting that negligence intentionally and with the knowledge that his acts constituted wilful misconduct. Whether the actions of Nicoletti constituted willful misconduct must be resolved by a jury. This procedure has been routinely used in the wake of Renk. See Pender v. Susquehanna Township, 933 A.2d 1085 (Pa.Commw. 2007); Gaul v. Consolidated Rail Corp., 556 A.2d 892 (Pa.Super. 1989). This critical disputed factual determination cannot be resolved by the Court on this record. 49 Morais, which was also prosecuted by instant counsel for Plaintiff, is factually similar to this case. Therein, Morais père barricaded himself in his apartment to resist a mental health commitment. Although he was not presenting a danger to anyone, SWAT officers precipitously stormed the apartment, violating police procedures for dealing with emotionally disturbed persons. During the course of the police incursion one of the officers was injured and the police responded by fatally shooting Mr. Morais. Morais, 2007 U.S. Dist. LEXIS 19619 at *7-*8 (E.D.Pa. 2007). Page 17 Case ID: 110802034 Control No.: 13060429 In Russoli v. Salisbury Township, 126 F.Supp.2d 821(E.D.Pa. 2000), the defense moved for summary judgment on state law claims, arguing that the officers were entitled to a pretrial determination of the willful misconduct issue. The court noted that because the Renk standard "requires a finding of facts as to the state of mind of the officers, it must be performed by the jury if there is sufficient evidence in the record to support such a finding by a reasonable jury." Id. at 869 (emphasis added). The court denied summary judgment because, as in this case, there was sufficient evidence of willful misconduct to go to a jury. Id. Indeed, in every case where the Pennsylvania and federal courts have had occasion to rule on this issue, the question of willful misconduct has consistently been held to be a factual determination that rests with the jury. See e.g. Keenan v. City of Philadelphia, 936 A.2d 566, 569 (Pa.Commw. 2007) ("The jury found that [the officer] engaged in willful misconduct"); Estate of Riley v. Pavgouzas, 2007 Phila.Ct.Comm.Pl. LEXIS 108 *10 ("The jury's specific finding of no willful misconduct prevents recovery"). See also Farago v. Sacred Heart General Hospital, 562 A.2d 300 (Pa. 1988). Defendants effort to revisit Tort Claims Act Immunity where the issue has already been decided violates the coordinate jurisdiction rule. Further, on the merits, summary judgment cannot be granted on this affirmative defense where a rational jury could find willful misconduct by the Defendants, thereby abrogating their immunity. Page 18 Case ID: 110802034 Control No.: 13060429 C. Defendants’ Motion for Summary Judgment Based upon the Affirmative Defense of Justification must Be Denied Where the Claimed Defense under Chapter 5 of the Crimes Code is Only Applicable to Criminal Prosecution. As a threshold matter, Defendants’ motion can be summarily denied because it is based upon the repeated erroneous statement of the law that “18 Pa.C.S. § 508. Title 18 Section 50[8](d)50 expressly authorizes the use of deadly force by police officers to prevent another person from committing suicide.” D.M. pp. 7, 11 (emphasis added).51 However, unlike Defendants, the Pennsylvania legislature understood how ludicrous it would be to authorize an officer to kill someone to prevent him from killing himself. That is why the statute actually says: “(1) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent such other person from committing suicide...” 18 Pa.C.S. § 508 (d)(1) (emphasis added). Compare § 508 (a)(1), which refers to the use of “any force”, including “deadly force”. In fact, § 508 (d) (1) (ii) of the Crimes Code specifically states “The use of deadly force is not in any event justifiable under this subsection ...” 52 Emphasis added. 50 Presumably Defendants’ citation to “505(d)” is a typo, since that section of the Crimes Code does not mention suicide. Subparagraph (d) of § 505 is a definitional section for “criminal activity”. 51 Defendants’ filing is numbered consecutively, without page numbers changing for each document in the filings. So, for example, the first page of the memorandum (D.M.) is numbered “5". 52 The section’s exceptions to the prohibition on the use of deadly force are not relevant to a suicidal person such as was present here. [§ 508 (d) (1) (ii)] The use of deadly force is not in any event justifiable under this subsection unless: (A) the actor believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious bodily injury to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to (continued...) Page 19 Case ID: 110802034 Control No.: 13060429 The Legislature also acknowledges how silly it would be to allow a defense like this – deadly force to prevent suicide – generally, by limiting the justification defense to situations where “the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged”. 18 Pa.C.S. § 503(a)(1). Chapter 5 of the Crimes Code also specifically denies the defense to conduct like that of Defendant Nicoletti, stating: (b) Choice of evils. -- When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. 18 Pa.C.S. § 503(b) (emphasis added). As discussed below, Chapter 5 of the Crimes Code is inapplicable to this civil case. However, even if the Court should find it applicable, § 503(b) would act to preclude summary judgment for Defendant Nicoletti, on either of the claims. The claims of intentional and negligent infliction of emotional distress are proven by showing, inter alia, recklessness and negligence, respectively. So, if those elements are proven, the justification defense is “unavailable” pursuant to the very terms of the statute. The summary judgment motion based on the asserted affirmative defense of statutory justification should also be summarily denied because Chapter 5 of the Crimes Code, of which § 508 is part, is, by its own terms, limited to the defense of justification in a criminal prosecution: “In any prosecution based on conduct which is justifiable under this chapter, justification is a defense.” 18 52 (...continued) innocent persons; or (B) the actor believes that the use of such force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such force will be used if they do not obey. Page 20 Case ID: 110802034 Control No.: 13060429 Pa.C.S. § 502 (emphasis added). Notably, Defendants do not cite a single Pennsylvania case where this statute relating to justification as a defense to criminal prosecution, was found to provide the civil case privilege to use deadly force that is claimed by Defendants. D.M. 7. The sole Pennsylvania civil case offered by Defendants is a case wherein the Commonwealth of Pennsylvania, Department of Public Welfare, Farview State Hospital, filed a Request for Special Emergency Relief asking the Pennsylvania Commonwealth Court for a Declaratory Judgment authorizing the involuntary administration of necessary nutrition and medical treatment in order to preserve the safety, health and life of a state prisoner. Commonwealth, Dep't of Public Welfare, Farview State Hosp. v. Kallinger, 134 Pa. Commw. 415, 416-417, 580 A.2d 887, 888 (Pa. Commw.1990). Therein, § 508 was only mentioned in passing in discussion of the state interest in force feeding the inmate against his will, noting Pennsylvania public policy against the commission of suicide. 580 A.2d at 892.53 Unable to find support in the Commonwealth for use of Chapter 5 of the Crimes Code as an affirmative civil defense, Defendants cite federal district court cases, most of them decades old, which are not binding on this Court.54 However, it appears that none of those district court cases are good law. In affirming the district court’s denial of the police officer’s motion for summary judgment in a fatal shooting case, Judge (now Justice) Alito wrote for a unanimous panel of the 53 Defendants also erroneously cite Commonwealth v. Kallinger as authority for the proposition that Title 18 Section 50[8](d) expressly authorizes the use of deadly force by police officers to prevent another person from committing suicide." D.M. pp. 7, 11 (emphasis added). “Deadly force” is, of course, unmentioned in this force feeding of an inmate case. 54 Mishoe v. Erie Ins. Co., 2000 PA Super 327, P5, 762 A.2d 369, 371 (Pa. Super. 2000) (Although "[a]n interpretation of Pennsylvania law by a federal court may be persuasive where our own Supreme Court has not addressed the issue, ... same is not binding precedent.”) Page 21 Case ID: 110802034 Control No.: 13060429 Third Circuit Court of Appeals: [Defendant police officer] argues that even if his use of force exceeded the constitutional limit established by Garner, he could have believed that he was acting lawfully on the basis of 18 PA. CONS. ST. § 508(a)(1) (2002)... The District Court held that [the officer] would have been unreasonable to rely on this statute because its application is limited to "addressing the circumstances under which an officer may claim the defense of justification to criminal charges arising from his use [of] deadly force against a suspect" and does not address the constitutionality of such force. Forbes, 2003 U.S. Dist. LEXIS 7713, at n. 10; accord Commonwealth v. French, 531 Pa. 42, 611 A.2d 175, 179 (Pa. 1992) (characterizing § 508(a)(1) as a statute defining the circumstances in which "the law provides a justification" for "an arresting officer's use [of] deadly force"). We agree with this reasoning. Forbes v. Twp. of Lower Merion, 76 Fed. Appx. 475, 478, 2003 U.S. App. LEXIS 20152 (3rd Cir. 2003) (emphasis added). For each of these reasons, Defendants’ motion for summary judgment in this civil action, based upon a defense to criminal prosecution under the Crimes Code, should be denied, D. Assuming, Arguendo, That an Affirmative Defense Based on the Crimes Code Is Available in a Civil Action, Defendants’ Motion for Summary Judgment must Be Denied Where the Defendants Have Failed to Carry Their Burden to Prove the Defense of Justification as a Matter of Law and Where There Are Disputed Issues of Material Fact Which Preclude Summary Judgment. Even if, notwithstanding the limitation of the defense to criminal prosecution set forth in Chapter 5 of the Crimes Code, § 508 could be deemed to constitute an affirmative defense in a civil case, defendant Nicoletti cannot satisfy the court-required elements of the defense: [O]ur Supreme Court restated the elements of a successful justification defense as follows: 1. that the actor was faced with a clear and imminent harm, not one which is debatable or speculative; 2. that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm; Page 22 Case ID: 110802034 Control No.: 13060429 3. that there is no legal alternative which will be effective in abating the harm; and, 4. that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Commonwealth v. Manera, 2003 PA Super 215, P5, 827 A.2d 482, 484 (Pa. Super. Ct. 2003). Viewing the evidence and all reasonable inferences therefrom in the light most favorable to Plaintiff as the non-moving party, Nicoletti cannot establish any of the first three prongs. Indeed, even Nicoletti’s own testimony regarding Officer Kerstetter’s role, capability, presence and taser, precludes his assertion of the defense for failure to meet the third element. Nicoletti’s testimony established that there was a legal alternative which would have been effective in abating the harm – letting Kerstetter do the job for which she was trained, equipped and called to the scene. Nor can Defendants establish that there is not a disputed question for the jury as to whether their actions constituted the tort of Intentional Infliction of Emotional Distress. The Pennsylvania Suggested Standard Jury Instruction for Intentional Infliction of Emotional Distress (also called Outrageous Conduct Causing Severe Emotional Distress) makes clear, the requisite element can be established by reckless conduct: A person who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for any bodily harm to the other that results from the emotional distress. When a defendant's conduct is directed to a person other than the plaintiff, the defendant is still liable if his or her conduct was a factual cause of the emotional distress. Extreme and outrageous conduct is that which goes beyond all possible bounds of decency and would be regarded as atrocious and utterly intolerable in a civilized community. Page 23 Case ID: 110802034 Control No.: 13060429 Emotional distress includes all highly unpleasant mental reactions such as [specify, for example: fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry]. Severe means that it is such that no reasonable person could be expected to endure it. In determining whether the emotional distress suffered by the plaintiff was severe, you may consider both the intensity of the distress and its duration. If you find that the defendant conducted [himself] [herself] in an extreme and outrageous manner and that conduct intentionally or recklessly caused severe emotional distress to the plaintiff, you may compensate the plaintiff for this injury. Pa. SSJI, 17.40 (Civ) 2008 (emphasis added).55 Likewise, § 46 of the Restatement (Second) of Torts specifically includes recklessness: (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress This language from the Restatement is routinely cited with approval by the Pennsylvania Courts as the basis for and definition of this tort. See e.g. Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000). As the Superior Court has explained: "Section 46 [of the Restatement (Second) of Torts] does not recognize liability for mere negligent infliction of emotional distress. However, reckless conduct causing emotional distress renders an actor as liable as if he had acted intentionally." Toney v. Chester County Hosp., 961 A.2d 192, 203 n. 9. (Pa. Super. Ct. 2008), affirmed by an equally divided Court at Toney v. Chester County Hosp., 2011 Pa. LEXIS 3097 (Pa., Dec. 22, 2011), quoting Pierce v. Penman, 515 A.2d 948, 951 (Pa. Super. 1986), appeal denied, 529 A.2d 1082 (1987) (emphasis added). On this subject, Comment I § 46 states: 55 Mr. Santiago suffered severe emotional distress as a result of watching his son executed before his eyes, with the belief that he set the events in motion by calling the police to help his troubled son. See Report of Dr. Noel Bruno, Exhibit “V”. Defendants do not raise a challenge to this element in their motion. Page 24 Case ID: 110802034 Control No.: 13060429 Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly . . . in deliberate disregard of a high degree of probability that the emotional distress will follow. Emphasis added. See also Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. Ct. 2000) (“To prevail on a claim of intentional infliction of emotional distress, [plaintiff] must prove that [defendant], by extreme and outrageous conduct, intentionally or recklessly caused them severe emotional distress.”). Pennsylvania law is clear that a claim for intentional infliction of emotional distress may be stated “even if the [defendant] did not have the specific intent to cause [] such distress as long as they acted recklessly.” United Services Auto. Assoc. v. Elitzky, 517 A.2d 982, 990 (Pa. Super. Ct. 1986), citing Jones v. P.M.A. Ins. Co., 495 A.2d 203 (Pa. Super. 1985). See also Gene's Restaurant, Inc. v. Nationwide Ins. Co., 548 A.2d 246, 247 n. 1 (Pa. 1988) (“intentional infliction of emotional distress, could have been "reckless" as opposed to intentional”); Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. Ct. 2000) (“To prevail on a claim of intentional infliction of emotional distress, [plaintiff] must prove that [defendant], by extreme and outrageous conduct, intentionally or recklessly caused them severe emotional distress.”). Recklessness is defined in the Restatement (Second) of Torts: The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Restatement (Second) of Torts § 500. "The conduct described in this section is often called "wanton Page 25 Case ID: 110802034 Control No.: 13060429 or willful misconduct." Restatement (Second) of Torts § 500, Reporter's Special Note. See Rankin v. SEPTA, 606 A.2d 536 (Pa. Cmwlth. 1992); Socarras v. City of Philadelphia, 552 A.2d 1171 (Pa. Cmwlth. 1989); Morris v. Musser, 478 A.2d 937 (Pa. Cmwlth. 1984). The Pennsylvania Suggested Standard Jury Instructions define reckless conduct as follows: Reckless conduct is intentional acting or failing to act in [reckless] disregard of a risk of harm to others that is known or should be known to be highly probable and with a conscious indifference to the consequences. Reckless conduct is [also] acting or failing to act when existing danger is actually known and with an awareness that harm is reasonably certain to result. Pa. SSJI, 3.110 (Civ) (2008). In arguing against Plaintiff’s claim, Defendants cite various intentional infliction of emotional distress (IIED) cases. None are inconsistent with the above stated applicable legal principles, and none of those cases are at all factually relevant: Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 670 A.2d 173 (1996), appeal denied. 681 A.2d 178 (1996) (No IIED in the dismissal of an at-will employee who falsely reported his employer for a hazardous materials violation. Employee also had no confirmed psychological injury.); Reimer v. Tien, 356 Pa. Super. 192, 514 A.2d 566 (1986) (No evidence of IIED at trial in case involving the conditions at a Caribbean medical school and the failure of an administrator to respond to refund requests of student who withdrew her enrollment after 11 days.); Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228 (Pa. Super 2005) (No IIED where exhusband sued ex-wife’s psychologist for failing to warn him before and during the marriage that bride was unable to keep her marriage commitments); Reedy v. Evanson, 615 F. 3d 197, 232 (3rd Cir 2010) (Even though detective’s denunciation, harassment, false statements and the omissions in his probable cause affidavit are arguably sufficiently extreme and atrocious, no IIED where no treatment and no claim of physical harm); Field v. Phila. Elec. Co., 388 Pa. Super. 400, 565 A.2d 1170 (Pa. Super. 1989) (utility company’s intentional exposure of employees to radiation stated a claim for IIED); Page 26 Case ID: 110802034 Control No.: 13060429 Ford v. Isdaner, 374 Pa. Super. 40, 542 A.2d 137 (Pa. Super. 1988) (in suit by condo owners against condo board and fellow owners for conduct of refusing to talk to them, turning their backs, spitting in their direction, refusing to shake hands at a funeral or anonymous late night telephone calls, did not state a claim for IIED); McNeal v. Easton, 143 Pa. Commw. 151, 598 A.2d 638 (Pa. Commw. 1991) (employees suit against his supervisors did not state a claim for IIED where employee testified that employers never personally made fun of him, that he never informed Appellees of the taunts of the co-workers nor that the co-workers' taunts bothered him, and that he had no basis to believe Appellees encouraged the co-workers' activity); Robinson v. Cook, 706 F.3d 25, 28 (1st Cir. 2013) (police investigation of a 2007 hit-and-run that culminated in the arrests of father and son and seizure of father’s car did not state claim for IIED where arrests were found to have been based on probable cause); Cann v. Wanner, 2006 U.S. Dist. LEXIS 44406 (E.D.Pa. 2006) (pro se plaintiff’s arrest with probable cause, pursuant to a valid warrant did not state claim for IIED where investigation conducted with sufficient caution and commonsense, plaintiff’s complicity in the robbery was a rational probability, and officer’s conduct was objectively reasonable and prudent); Wilkes v. State Farm Ins. Cos., 2005 U.S. Dist. LEXIS 36434 (M.D. Pa. 2005) (Where insured filed a claim after the furnace in his apartment malfunctioned and insurer paid that claim, the insurer’s alleged wrongful refusal to pay additional, related claims did not constituted IIED); Hoy v. Angelone, 554 Pa. 134, 138, 720 A.2d 745 (Pa. 1998) (As a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for the intentional infliction of emotional distress in the employment context, the extra factor that is generally required is retaliation.); Dull v. W. Manchester Twp. Police Dep't, 604 F. Supp. 2d 739 (M.D. Pa. 2009) (allegedly improper arrests for indiscrete photos of granddaughter and twisting of wrist during arrest not of such an appalling or reprehensible nature as to rise to the level of an IIED claim.). Here, the material facts, read in the light most favorable to the non-moving Plaintiff, and the reasonable inferences therefrom, demonstrate that Defendants’ extreme and outrageous conduct recklessly caused Plaintiff Carmelo Santiago severe emotional distress: Page 27 Case ID: 110802034 Control No.: 13060429 ‚ Nicoletti heard McCarthy call for back-up and heard PO Kerstetter, the Crisis Intervention Trained, taser officer respond to the call.56 ‚ Nicoletti knew that McCarthy had called for a taser officer shortly after they arrived at the Santiago home.57 ‚ Nicoletti heard PO Kerstetter, the Crisis Intervention Trained, taser officer, respond to the call for a taser officer and announce over police radio that she was en route and six blocks away.58 ‚ Within about a minute, Nicoletti heard PO Kerstetter, the Crisis Intervention Trained, taser officer, announce over police radio that she was pulling up in front of the house.59 ‚ When PO Kerstetter entered the house, McCarthy left the doorway of the kitchen to speak with her and ask Officer Kerstetter to talk to Carmelo Winans.60 ‚ Nicoletti testified that he is familiar with CIT and that “[i]t’s for situations like this”,61 while Kerstetter explained that “CIT training is just trying to talk people into putting the weapon down.”62 56 Exhibit “D”, Track 16. 57 Exhibit “D”, Track 18; Nicoletti Dep., Exhibit “E”, p. 30. 58 Exhibit “D”, Track 18; 59 Nicoletti Dep., Exhibit “E”, 30; Exhibit “D”, Tracks 19 and 20. 60 Kerstetter Dep., Exhibit “F”, p. 35. 61 Nicoletti Dep., Exhibit “E”, p. 30. 62 Kerstetter Dep., Exhibit “F”, p. 46. Page 28 Case ID: 110802034 Control No.: 13060429 ‚ As requested by Nicoletti and McCarthy, Carmelo Winans, put the knife down on the floor in the isolated corner of the kitchen where he stayed sitting.63 There was no emergency, there was no danger and the situation was de-escalating safely. ‚ Winans had put down the knife.64 ‚ Nicoletti saw that CIT Officer Kerstetter was present,65 with a taser, standing in the doorway to the kitchen,66 just feet from where Winans sat on the floor,67 at least 5 seconds before he lunged at Winans.68 ‚ Nicoletti disregarded explicit Police Department procedures69 and basic common sense. ‚ Without warning to, or consultation with, his partner or the specially trained officer with the taser,70 Nicoletti left his position of safety to lunge at and jump on71 a confused young man who was no danger to any other person, and who had surrendered the knife with which he had been endangering only himself. 63 Santiago Dep., Exhibit “A”, p. 77; Exhibit “G”, pp. 19-20, 28. 64 Santiago Dep., Exhibit “A”, p. 77, 79; Exhibit “G”, pp. 19-20, 28. 65 Santiago Dep., Exhibit “A”, p. 86-87. 66 Nicoletti Dep., Exhibit “E”, 32-33. 67 Santiago Dep., Exhibit “A”, pp. 58; Photo of Kitchen, Exhibit “B” (C. Santiago Dep., Exhibit 1, p. 4); Crime Scene Unit Scene Diagram, Exhibit “C”. 68 Nicoletti Dep., Exhibit “E”, 32-33. 69 Directive 136, Exhibit “I”; Directive 10, Exhibit “J”. 70 Nicoletti Dep., Exhibit “E”, p. 48-49; Kerstetter Dep., Exhibit “F”, p. 35. 71 Santiago Dep., Exhibit “A”, p. 77. Page 29 Case ID: 110802034 Control No.: 13060429 ‚ Although Kerstetter had actually entered the kitchen,72 Nicoletti senselessly created a crisis by throwing himself on the seated Carmelo Winans, with his gun in his hand.73 ‚ According to the Medical Examiner, Nicoletti shot Winans’ through his left palm, out the ulnar (outer) side of his left wrist, into the inside of Winans’ right thigh, out the outside of his upper thigh,74 and across the room where it struck a clock and the wall.75 ‚ Nicoletti had his gun the whole time.76 ‚ Winans had his hands up in front of his chest in a defensive position.77 ‚ The knife which Winans had put on the floor had been kicked clear by Officer Kerstetter, who pulled Nicoletti back as she stood by with her taser.78 ‚ Although he was not, Nicoletti claimed to be shot.79 72 McCarthy Dep., Exhibit “K”, p. 29. 73 Santiago Dep., Exhibit “A”, p. 80; Nicoletti Dep., Exhibit “E”, p. 33. 74 Findings and Report of Examination of the Medical Examiner, Exhibit “O” (Findings, § II.c.; Report of Examination, p. 3) 75 Kerstetter Dep., Exhibit “F”, 28, 29; Photo of Clock/Bullet Strike Exhibit “P”. 76 Santiago Dep., Exhibit “A”, p. 80. 77 Santiago Dep., Exhibit “A”, p. 80. 78 Kerstetter Dep., Exhibit “F”, pp. 29-30. 79 Santiago Dep., Exhibit “A”, pp. 77-78. Page 30 Case ID: 110802034 Control No.: 13060429 ‚ As he held Winans, Defendant McCarthy then fired two close range shots at Carmelo Winans,80 who sat on the kitchen floor unarmed, injured, defenseless, unresisting, taking no aggressive actions, just sitting there.81 Accordingly, the facts and the reasonable inferences therefrom, when read in the light most favorable to Plaintiff demonstrate that Defendants are not entitled to summary judgment based upon the alleged affirmative defense of Crimes Code justification, or otherwise. V. RELIEF REQUESTED WHEREFORE, Plaintiff prays this Honorable Court deny Defendants’ Motion for Summary Judgment. By: POPPER & YATVIN Howard D. Popper, Esquire 230 S. Broad Street, Suite 503 Philadelphia, PA 19102 (215)546-5700 Fax (215)546-5701 Popper.yatvin@verizon.net July 5, 2013 Attorney for Plaintiff 80 Santiago Dep., Exhibit “A”, pp. 77-78. 81 Santiago Dep., Exhibit “A”, p. 78. Page 31 Case ID: 110802034 Control No.: 13060429 CERTIFICATE OF SERVICE I, HOWARD D. POPPER, do hereby certify that I am this day causing to be served a copy of the foregoing upon the persons and in the manner indicated below. The manner of service satisfies the requirements of the Pa.R.Civ.P. ___________________________ Howard D. Popper, Esquire Service by E-filing, as follows: Dated: July 5, 2013 TO: Amanda C. Shoffel, ACS Law Department 1515 Arch Street, 14th Floor Philadelphia, PA 19102 (215) 683-5443 Amanda.Shoffel@phila.gov Case ID: 110802034 Control No.: 13060429