BOROUGH OF WESTVILLE, NEW JERSEY et al v. CITY OF PHILADELPHIA et al

Filing 8

OPINION. Signed by Judge Joseph E. Irenas on 3/3/2015. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BOROUGH OF WESTVILLE, NEW
JERSEY and TRI-COUNTY
MUNICIPAL JOINT INSURANCE
FUNDS,
Plaintiffs,
v.
CITY OF PHILADELPHIA,
Defendant.

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Civil No. 14-4652 (JEI/AMD)
OPINION

APPEARANCES:
MALEY & ASSOCIATES
By: M. James Maley, Jr., Esq.
931 Haddon Avenue
Collingswood, New Jersey 08108
Counsel for Plaintiffs
PALMER BIEZUP & HENDERSON LLP
By: Stephen M. Calder, Esq.
330 Market Street
Camden, New Jersey 08102
Counsel for Defendant

IRENAS, Senior United States District Judge:
Fire Boat #7, owned by Plaintiff, the Borough of Westville,
New Jersey, was damaged allegedly by a large wake caused by the
fire boat Independence operated by Defendant, the City of
Philadelphia, Pennsylvania, during the course of responding to a
fire.

The Borough of Westville, and Plaintiff Tri-County

Municipal Joint Insurance Fund, seek $140,600 in damages.
1

Plaintiffs assert claims for negligence, as well as
constitutional violations pursuant to 42 U.S.C. § 1983. 1
Philadelphia presently moves to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6). 2

For the reasons stated herein, the motion will be

granted as to the § 1983 claim and denied as to the negligence
claims.

I.
The Amended Complaint alleges the following facts.
On September 16, 2010, a fire broke out at the BP Petroleum
The fire spread to the “4th

Plant in Paulsboro, New Jersey.
Dock” at the plant.

Gloucester County Emergency Response (GCER)

dispatched Westville’s Fire Boat #7 to the scene.

1

The Court exercises federal question jurisdiction pursuant to
28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28
U.S.C. § 1367. Diversity of citizenship jurisdiction also
exists.
Additionally, it would appear that this Court might have
admiralty jurisdiction over this suit, which arises out of an
accident between two vessels occurring on the Delaware River.
However, no one has raised any issue concerning admiralty
jurisdiction or maritime law, therefore the Court does not
address it here.

2

Philadelphia initially moved to dismiss the original complaint
(See Docket #2) Plaintiffs opposed that motion but shortly after
they filed their opposition brief, they filed an Amended
Complaint. Thereafter, Philadelphia moved to dismiss the
Amended Complaint (See Docket #5) asserting the same arguments
it raised in its first Motion to Dismiss. The first Motion to
Dismiss (Docket #2) will be dismissed as moot.
2

Sometime thereafter, GCER also dispatched Philadelphia’s
Independence to the scene.

However, prior to Independence’s

arrival, the fire was contained, and GCER notified Independence
to “hold off.”

“Independence made an abrupt turn at excessive

speed to return to its dock in Philadelphia.

As a result of

this abrupt turn, two large wakes pushed [Westville’s Fire Boat
#7] against industrial equipment docked beside the operational
zone and the bulkhead causing severe damage.”

(Amend. Compl. ¶

23-24)
The damage to Fire Boat #7 was declared a total loss by a
claims adjuster.

II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”

In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).

While a court must accept as true all factual

allegations in the plaintiff’s complaint, and view them in the
light most favorable to the plaintiff, Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), a court is not
required to accept sweeping legal conclusions cast in the form
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of factual allegations, unwarranted inferences, or unsupported
conclusions.

Morse v. Lower Merion Sch. Dist., 132 F.3d 902,

906 (3d Cir. 1997).

The complaint must state sufficient facts

to show that the legal allegations are not simply possible, but
plausible.

Phillips, 515 F.3d at 234.

“A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

III.
The Court first addresses the § 1983 claim before turning
to negligence claims.

A.
Plaintiffs seek to impose § 1983 Monell liability on the
City of Philadelphia, asserting that Philadelphia had a policy
or custom of inadequately training its fire boat operators.
Plaintiffs assert that the operator(s) of Independence 3 acted
negligently and with deliberate indifference and recklessness,

3

Apparently Plaintiffs do not know the identity of
Independence’s operator(s). He or she is identified as “John
Doe/Jane Doe” in the Amended Complaint, and Count 3 asserts a §
1983 claim against “Defendant John Doe / Jane Doe” operator.
Philadelphia has not moved to dismiss this claim, presumably
because Philadelphia is not named as a Defendant to the claim.
4

thereby depriving Westville of its property in violation of the
14th Amendment’s due process clause.
Philadelphia argues that Plaintiffs fail to state a claim.
The Court agrees.
Because Plaintiffs do not allege anything other than a
single incident of an alleged constitutional deprivation, their
Amended Complaint obviously cannot survive on an “ordinary”
failure to train theory, which requires allegations of “‘a
pattern of similar constitutional violations by untrained
employees.’” Thomas v. Cumberland County, 749 F.3d 217, 223 (3d
Cir. 2014) (quoting Connick v. Thompson, 131 S. Ct. 1350, 1360
(2011)).
Instead, Plaintiffs must rely on a “single incidence”
failure to train theory, which is an uphill battle.

The Supreme

Court has “sought not to foreclose the possibility, however
rare, that the unconstitutional consequences of failing to train
could be so patently obvious that a city could be liable under §
1983 without proof of a pre-existing pattern of violations.”
Connick, 131 S. Ct. at 1361 (emphasis added); see generally id.
at 1359 (“A municipality’s culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure
to train.”).
Nothing about the nature or circumstances of the accident
alleged in this case plausibly supports a conclusion that the
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need for training was “patently obvious.”

Plaintiffs’

conclusory allegation that “the risk of property damage caused
by a large wake is so great and obvious that [Philadelphia]
should have recognized the need for training on how to avoid
causing wakes,” is insufficient.
Moreover, the facts pled do not support a plausible
conclusion that adequate training would have prevented the
damage to Fire Boat #7.

See Id. at 1358 (stating that a

plaintiff bears the burden of proving: (1) a policymaker’s
deliberate indifference to the need for training and (2) “that
the lack of training actually caused” the constitutional
deprivation).
Plaintiffs have failed to state a claim for single
incidence failure to train liability.

Philadelphia’s Motion to

Dismiss will be granted as to this claim. 4

4

In light of this disposition, and because the parties have not
raised it, the Court does not address the issue whether the
Borough of Westville, a local political subdivision within the
State of New Jersey, possesses rights under the Fourteenth
Amendment as against Philadelphia, a local political subdivision
within the State of Pennsylvania.
The law appears clear that local political subdivisions
possess no Fourteenth Amendment rights against other political
subdivisions of the same state. See, e.g., South Macomb
Disposal Authority v. Washington Tp., 790 F.2d 500, 505 (6th
Cir. 1986)(“the Fourteenth Amendment simply does not prescribe
guidelines and impose restrictions upon one political
subdivision vis-a-vis another political subdivision. The
relationship between the entities is a matter of state concern;
the Fourteenth Amendment protections and limitations do not
apply.”). However, it is unclear whether the same limitation
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B.
With regard to the negligence claims, Philadelphia makes
two arguments.

First, it argues that the Interstate Civil

Defense and Disaster Compact (ICDDC), joined by both
Pennsylvania and New Jersey, bars Plaintiffs’ suit.

Second, it

argues that it has statutory immunity under Pennsylvania law.
The Court addresses each issue in turn.

1.
The ICDDC, provides in relevant part:
ARTICLE I
The purpose of this compact is to provide mutual aid
among the States in meeting any emergency or
disaster from enemy attack or other cause (natural
or otherwise) including sabotage and subversive acts
and direct attacks by bombs, shellfire, and atomic,
radiological, chemical, bacteriological means, and
other weapons. The prompt, full and effective
utilization of the resources of the respective
States, including such resources as may be available
from the United States Government or any other
source, are essential to the safety, care and
welfare of the people in the event of enemy action
or other emergency, and any other resources,
including personnel, equipment or supplies, shall be
incorporated into a plan or plans of mutual aid to
be developed among the Civil Defense agencies or
similar bodies of the States that are parties
hereto. . . .
. . .

would apply to a suit against a political subdivision of another
state, as is the case here.
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ARTICLE V
No party State or its officers or employees
rendering aid in another State pursuant to this
compact shall be liable on account of any act or
omission in good faith on the part of such forces
while so engaged, or on account of the maintenance
or use of any equipment or supplies in connection
therewith.
N.J.S.A. 38A:20-3, and 35 Pa.C.S. § 7111 (emphasis added).
Philadelphia argues that Article V precludes its liability
as a matter of law.

In opposition, Plaintiffs argue that the

ICDDC only applies in situations of “enemy attack” where “civil
defense” is necessary.
Plaintiffs’ interpretation of the ICDDC’s language has some
logical appeal.

Relying on noscitur a sociis 5, Plaintiffs argue

that “emergency,” as used in the compact, does not encompass
situations such as a local fire, but rather, encompasses only
“heightened emergencies that could be considered acts of
terrorism or war.”

(Opposition Brief, p. 9)

The Court need not rule on that argument however, because
even if the ICDDC applies, Philadelphia was not in the process
of “rendering aid” to the Borough of Westville when the accident
occurred.

5

“[T]he canon of construction
meaning of an unclear word or
words immediately surrounding
N.J. 558, 572 (2007) (quoting

noscitur a sociis—‘that the
phrase should be determined by the
it,’” Soto v. Scaringelli, 189
Black’s Law Dictionary).

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The Amended Complaint clearly alleges that Independence
never made it to the scene of the fire; GCER directed
Independence to hold off prior to arrival.

Only then did

Independence turn around, on its way back to Philadelphia, when
it allegedly caused the wake that damaged Fire Boat #7.

Thus,

Philadelphia was not “rendering aid” when the accident occurred.
Therefore, Philadelphia cannot invoke the protections of Article
V.

2.
Philadelphia argues that Pennsylvania’s Municipal Tort
Claims Act precludes its liability for subrogated claims for
insured losses.

See 42 Pa.C.S. § 8553(d).

Plaintiffs do not dispute that the Municipal Tort Claims
Act prevents recovery of “monies received under a policy of
insurance.”

(Opposition Brief, p. 11)

Rather, they assert that

Plaintiff Tri-County Joint Insurance Fund is not an insurer and
does not issue policies of insurance.

According to Plaintiffs,

“the Tri-Co JIF is essentially group self-insurance” for the
municipalities who contribute to the fund.

(Id., p. 12)

Indeed, the Amended Complaint alleges, “Plaintiff, [Tri-Co
JIF] is a municipal joint insurance fund created pursuant to
N.J.S.A. 40A:10-36 in which municipalities within Gloucester,
Salem, and Cumberland Counties in New Jersey have joined
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together for purposes of insuring against property damage.”
(Amend. Compl. ¶ 10)
As Plaintiffs correctly observe, such joint insurance funds
are explicitly not insurers under New Jersey law: “A joint
insurance fund established pursuant to the provisions of this
act is not an insurance company or an insurer under the laws of
this State, and the authorized activities of the fund do not
constitute the transaction of insurance nor doing an insurance
business.”

N.J.S.A. 40A:10-48.

Philadelphia makes no argument in reply.
The Court holds that 42 Pa.C.S. § 8553(d) does not preclude
Plaintiffs’ recovery of damages in this suit.

IV.
In light of the foregoing, Philadelphia’s Motion to Dismiss
will be granted as to the § 1983 Monell claim and denied in all
other respects.

Date:

An appropriate Order accompanies this Opinion.

March 3, 2015

___s/ Joseph E. Irenas
__
JOSEPH E. IRENAS, S.U.S.D.J.

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