THORNTON et al v. CITY OF PITTSBURGH et al

Filing 27

BRIEF in Opposition re 11 Motion to Dismiss by Allegheny County and Allegheny County Department of Emergency Services filed by JEREMIAH C. MITCHELL. (Perer, Alan) Modified on 1/26/2011. (plh) Modified on 1/26/2011. (plh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THERESA E. THORNTON and
JEREMIAH C. MITCHELL, as CoAdministrators of the Estate of Curtis L.
Mitchell, deceased,
Plaintiffs,
v.
CITY OF PITTSBURGH; ROBERT J.
McCAUGHAN; MARK A. BOCIAN;
RONALD V. ROMANO; JOSIE DIMON;
ANDREW
LAGOMARSINO;
KIM
LONG;
NORMAN
AUVIL;
RON
CURRY; ALLEGHENY COUNTY; and
COUNTY
OF
ALLEGHENY
DEPARTMENT
OF
EMERGENCY
SERVICES,
Defendants.

: CIVIL DIVISION
:
: No. 10-cv-01436
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BRIEF IN OPPOSITION TO MOTION TO DISMISS FILED BY DEFENDANTS
ALLEGHENY COUNTY AND ALLEGHENY COUNTY DEPARTMENT OF
EMERGENCY SERVICES
AND NOW, Plaintiffs, by and through their attorneys, Alan H. Perer, Esquire, Robert N.
Peirce, III, Esquire, and Paul A. Ellis, Esquire, submit this Brief in Opposition to Defendants‟
Motion to Dismiss, stating as follows:
FACTS

Beginning at about 2:00 a.m. on February 6, 2010, Curtis Mitchell, age 50, began
experiencing severe abdominal pain. (Amended Complaint, ¶ 20.) His girlfriend, Sharon Edge,
was with him at the time and called 911 for an ambulance. (Amended Complaint, ¶ 20.) Upon
speaking with a member of the Allegheny County Department of Emergency Services, Edge was

informed that an ambulance was dispatched. As to be expected, Mr. Mitchell and Ms. Edge
waited at his residence, located at 5161 Chaplain Way, Pittsburgh, for the ambulance to arrive.
(Amended Complaint, ¶ 21.)
The dispatched ambulance was unable to cross the Elizabeth Street Bridge due to heavy
snow, although the ambulance had gotten within one-quarter mile of Mr. Mitchell‟s residence.
(Amended Complaint, ¶ 22.) The emergency medical technicians (EMTs) in that ambulance
asked Mr. Mitchell, who was still in great pain, to walk the quarter-mile distance to reach their
ambulance. Ms. Edge informed the 911 calltakers that Mr. Mitchell was unable to comply with
the EMTs‟ request, because his pain was too severe for him to walk, and Ms. Edge was unable to
carry Mr. Mitchell to help. (Amended Complaint, ¶ 24.) The EMTs decided not to get out of
their ambulance and walk to Mr. Mitchell‟s residence to help him. Instead, they opted to leave.
(Amended Complaint, ¶ 25.)
With the pain persisting and growing worse, Mr. Mitchell and Ms. Edge continued
making calls to 911 seeking help. (Amended Complaint, ¶ 26.) Early in the morning hours of
February 6, 2010, hours after the initial emergency call, a 911 operator informed Mr. Mitchell
that a second ambulance would be sent to him.

(Amended Complaint, ¶ 27.)

A second

ambulance, called Medic 8, was dispatched, headed by acting crew chief Josie Dimon.
(Amended Complaint, ¶ 28.) Dimon‟s ambulance was also unable to reach Mr. Mitchell‟s
residence, because Medic 8 was also unable to cross the Elizabeth Street Bridge due to the snow.
(Amended Complaint, ¶ 28.) Despite getting to within one-quarter mile of Mr. Mitchell‟s
residence, nobody in Medic 8 got out to walk to help an ailing Mr. Mitchell. (Amended
Complaint, ¶ 29.)

Instead, Dimon asked that Mr. Mitchell walk to meet the ambulance.

(Amended Complaint, ¶ 29.) Once again, Mr. Mitchell notified Medic 8, through the 911

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operator, that he could not walk to meet the ambulance. (Amended Complaint, ¶ 29.) Upon
hearing that Mr. Mitchell was unable to walk to meet the ambulance, Dimon became irate and
stated, on tape, “He ain‟t (expletive) comin‟ down, and I ain‟t waiting all day for him. I mean,
what the (expletive)? This ain‟t no cab service.” (Amended Complaint, ¶ 31.) Thereafter,
Dimon and the crew of Medic 8 left, without any further attempts to help Mr. Mitchell.
(Amended Complaint, ¶ 32.)
Having waited for two ambulances, neither of which helped him, Mr. Mitchell‟s
condition continued to worsen.

He suffered through severe abdominal pain and later had

difficulty breathing. (Amended Complaint, ¶ 33.) Mr. Mitchell and Ms. Edge continued making
calls to 911 seeking help. (Amended Complaint, ¶ 26.) A third ambulance, Medic 7, lead by
acting crew chief Andrew Lagomarsino, was dispatched to the scene. (Amended Complaint, ¶
34.) Once again, the third crew requested that Mr. Mitchell walk to meet their ambulance.
(Amended Complaint, ¶ 35.) Mr. Mitchell was again unable to walk to meet the ambulance,
because during the lengthy interim between the first call to 911 and Medic 7‟s dispatch, he had
taken pain medication that caused him to fall asleep. (Amended Complaint, ¶ 36.) The third
ambulance, Medic 7, also left the scene. (Amended Complaint, ¶ 37.) After these three failed
rescue attempts, Mr. Mitchell died the next day, February 7, 2010 at or around 8:00 a.m.
(Amended Complaint, ¶ 38.)
By the time of his death, Mr. Mitchell and Ms. Edge had made a total of ten (10) calls to
911 seeking help. (Amended Complaint, ¶ 40.) Between the time of the first 911 call and Mr.
Mitchell‟s death, Kim Long, a crew chief at the 911 dispatch center, had been working in the
call center and had made several calls to Mr. Mitchell and Ms. Edge to get details on Mr.
Mitchell‟s condition. (Amended Complaint, ¶ 41.) Despite the detailed information Kim Long

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obtained through this series of calls, Long did not inform the EMTs in the ambulances that the
reason Mr. Mitchell could not walk to meet them was that he was in too much pain. (Amended
Complaint, ¶ 42.) Moreover, Long told Mr. Mitchell, who Long knew to be in so much pain that
he could not even walk, that he needed to take a bus. (Amended Complaint, ¶ 42.) Long was not
the only person involved in the call center, however. Norman Auvil, a district chief, had also
been working in the 911 dispatch center, and he never reviewed Mr. Mitchell‟s calls to see if the
EMTs required more resources to successfully provide help. (Amended Complaint, ¶ 43.)
Further, Ron Curry, a district chief, had been working in the 911 dispatch center yet did not
research Mr. Mitchell‟s calls to see how long Mr. Mitchell had been waiting or to see if
additional resources were required to reach him. (Amended Complaint, ¶ 44.)
Over a period of thirty hours (from 2:00 a.m. February 6, 2010 to 8:00 a.m. February 7,
2010) a systemic and reckless breakdown of the city, the county and their respective personnel
allowed Curtis Mitchell to die a preventable death. These failures of basic human decency were
deemed so egregious that Dimon, Long, Auvil and Curry have all faced disciplinary or even
termination actions in their workplaces. (Amended Complaint, ¶ 45.)
ARGUMENT

I.

Plaintiffs have adequately set forth facts to allege a State-Created Danger
§1983 Claim: State-Created Danger
Section 1983 itself does not create any substantive rights but instead is a remedy for a

separate deprivation of rights established elsewhere. 42 U.S.C. §1983; City of Oklahoma v.
Tuttle, 471 U.S. 808, 816 (1985). There is no Constitutional right to governmental aid or
protection under the Due Process Clause of the 14th Amendment, even if such aid or protection
would be necessary to secure life, liberty or property. Ye v. U.S., 484 F.3d 634, 636 (3d Cir.

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2007), citing DeShaney v. Winnebago County Dep‟t of Social Servs., 489 U.S. 189, 194-95
(1989). This general rule as to governments is in contrast to the rule that one must perform a
rescue competently once he undertakes it; that is, even if a government undertakes to provide
rescue services (which it was not required to provide), there is no Constitutional obligation to do
so competently. Brown v. Pennsylvania Dep‟t of Health Emergency Med. Servs. Training Inst.,
318 F.3d 473, 478 (3d Cir. 2003). Thus, because there is not a Constitutional right to receive
emergency aid to begin with, Plaintiffs‟ §1983 claim must meet one of two exceptions: “special
relationship” or “state-created danger.” Brown, 318 F.3d at 478. The “special relationship”
exception is inapplicable to this case.
As to the remaining exception, the “state-created danger” exception requires the plaintiff
to satisfy four prongs:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant‟s acts, or a member of a discrete class of persons
subjected to the potential harm brought about by the state‟s actions, as opposed to a
member of the public in general, and
(4) a state actor affirmatively used his authority in a way that created a danger to the
citizen or made the citizen more vulnerable to danger than if the state had not acted at all.
Ye, 484 F.3d at 638. Thus, while there is no Constitutional right to receive emergency aid, there
is a right to be free of state-created dangers. Upon meeting the above four elements, a plaintiff
may recover in a §1983 action for a substantive due process violation arising out of such a statecreated danger. See, e.g., Scanlan v. Texas A&M Univ., 343 F.3d 533, 538 (5th Cir. 2003)
(finding that university officials were liable under the state-created danger theory when they
allowed a university-sponsored bonfire to grow, over the years, to a 3 million pound structure

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assembled by students, for “the bonfire construction environment was dangerous, the University
Officials knew it was dangerous, and the University Officials used their authority to create an
opportunity for the resulting harm to occur. As a result, the district court should have concluded
that the plaintiffs stated a section 1983 claim under the state-created danger theory.”)

A.

State-Created Danger: Element #1--Foreseeable & Direct

In the instant matter, there is no dispute that Mr. Mitchell and Ms. Edge made a total of
ten calls to 911 over the course of the ongoing medical emergency, and that these calls were
answered and processed by Defendant Allegheny County and the Allegheny County Department
of Emergency Services, specifically through Defendants Long, Auvil and Curry. (Amended
Complaint, ¶ 9-10, 17-19, 26, 40.) . (Amended Complaint, ¶ 26, 40.) There was also a series of
conversations between Kim Long and Mr. Mitchell and Ms. Edge during which Long continually
obtained developing details as to Mr. Mitchell‟s condition.

(Amended Complaint, ¶ 41.)

Finally, EMTs were dispatched not once, but a total of three times to Mr. Mitchell‟s residence,
and in none of those attempts was there even close to a successful rescue made. (Amended
Complaint, ¶ 21, 25, 28, 32, 34, 37.) Thus, Mr. Mitchell‟s ultimate death was a foreseeable
result of such a systematic failure to help him. Moreover, in light of the foreseeability required
to meet element #3‟s “relationship” criteria, discussed below, there is no dispute that the harm
suffered in this case meets the first element of the state-created danger exception.

B.

State-Created Danger: Element #2--Conscience-Shocking

The Plaintiffs sufficiently alleged that the conduct of the Defendants shocks the
conscience. “The exact degree of wrongfulness necessary to reach the „conscience-shocking‟
level depends upon the circumstances of a particular case.” Walter v. Pike County, 544 F.3d

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182, 192 (3d Cir. 2008), citing Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999).
“The constitutional concept of shocking duplicates no traditional category of common-law fault,
but rather points clearly away from liability or clearly toward it . . . .” Brown, 318 F.3d at 480,
citing County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998).
This conscience-shocking standard requires showing that the defendants consciously
disregarded that the plaintiff would be seriously harmed by their actions. Rivas v. City of
Passaic, 365 F.3d 181, 196 (3d Cir. 2004). In Ziccardi v. City of Philadelphia, 288 F.3d 57, 6467 (3d Cir. 2002), involving a §1983 claim against emergency medical personnel, the court
explained, in dicta, the “shocks the conscience” standard. The plaintiff in such a case is not
required to prove that the defendant acted with a deliberate intent. However, the plaintiff must
show that the defendants disregarded not just a substantial risk, but a great risk that harm would
result. Id. at 64-66.
In Taylor v. Altoona Area Sch. Dist., 513 F.Supp.2d 540, 547-48 (W.D.Pa. 2007), a
mother brought a §1983 claim against her deceased son‟s school district for its lack of a prompt
response to an asthma attack. The child‟s teacher was aware that the child had an asthma
condition, and the child was enrolled in an individual education plan to meet his special needs.
Id. at 547. The child had been recently hospitalized for a similar attack, and the teacher was
aware of this, for the teacher actually helped to create the individual education plan with these
needs in mind. Id. On the date of the incident, the child reported to his teacher that he was
having an attack, but the teacher told him to lay his head on his desk. The teacher did not notify
the school administration, the school nurse, or the child‟s parents, nor did she permit the child to
make such contact or seek aid. Id. When the child turned purple fifteen minutes later, the
teacher then summoned aid. Id. The child ultimately died from the asthma attack. Id. at 548.

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The court held that, in the §1983 claim against the teacher, it was possible that a jury could infer
that the teacher did indeed act in a conscience-shocking manner by denying the student the
opportunity to obtain assistance, for she was acutely aware of the student‟s medical condition.
Id. at 573. That is, she disregarded a substantial risk of serious harm. Id.
In light of the Brown holding that the “conscience shocking” standard points toward
liability or away from it, and because the Plaintiffs can demonstrate that “conscience shocking”
conduct occurred without there being an intent to injure on the part of the Defendants, the
Plaintiffs have adequately set forth sufficient facts to meet the second element of the §1983
claim for a state-created danger. Brown, 318 F.3d at 480; Ziccardi, 288 F.3d at 64-67.
The events surrounding Mitchell‟s situation are much more egregious than the student‟s
situation in Taylor. Taylor, 513 F.Supp.2d at 547-48. In this case, the Plaintiffs made ten
desperate calls for help over a two-day period. (Amended Complaint, ¶ 40.) Each and every
Defendant in this case is aware of the purpose behind the 911 emergency response system, such
that there is an imminent need for help anytime the system is used. Defendant calltakers Auvil,
Curry and Long all received information of Mitchell‟s condition, yet they failed to inform later
shifts of the exigencies posed by the situation or perform adequate research/review of the calls to
ascertain the needs of the rescuers. (Amended Complaint, ¶ 167.)
Allegheny County and the Allegheny County Department of Emergency Services knew
that their failure to adequately handle and direct 911 calls, specifically where multiple calls had
been made, would result in serious harm to Mr. Mitchell. (Amended Complaint, ¶ 192, 221.)
Also, Allegheny County and the Allegheny County Department of Emergency Services took no
action or took inadequate action to correct these policies to ensure proper care to patients.
(Amended Complaint, ¶ 192, 221.)

Further, Allegheny County and the Allegheny County

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Department of Emergency Services, through their calltakers, failed to communicate effectively
with emergency personnel, such that the EMTs were unaware of both the number of calls that
had been made and the information relayed in those calls, especially the worsening condition of
Mr. Mitchell. (Amended Complaint, ¶ 192, 221.)

It could be said that to deny aid to any

request made in a 911 call is conscience-shocking conduct on the part of all of the Defendants,
for in each case there is a disregard of a substantial risk of great harm—meeting the Ziccardi
standard. Ziccardi, 288 F.3d at 64-67.
The Plaintiffs have specifically alleged that there was conscience-shocking conduct in
that all Defendants failed to provide assistance when they knew it was needed. (Amended
Complaint, ¶ 70, 92, 116, 140, 164, 193, 222.) By way of further example, it is alleged that the
City of Pittsburgh, McCaughan, Bocian and Romano failed to train its EMTs, knew that current
policies would lead to a victim‟s severe pain and suffering, and were aware of a breakdown in
communications and rescue efforts, all of which disregarded the risks facing Mr. Mitchell.
(Amended Complaint, ¶ 73, 95.)

These allegations are not bald legal assertions, for the

allegations state that the basis for the conduct was the failure to render emergency assistance to a
person in need.
Moreover, the Plaintiffs have alleged the Defendants Dimon and Lagomarsino exhibited
conscience-shocking conduct in not making attempts to reach Mitchell‟s residence, and in
suggesting that Mitchell transport himself to either their ambulance or a hospital. (Amended
Complaint, ¶ 20-47.) Notably, Defendant Dimon exhibited conscience-shocking conduct by
stating on tape, “He ain‟t (expletive) comin‟ down, and I ain‟t waiting all day for him. I mean,
what the (expletive)? This ain‟t no cab service.” (Amended Complaint, ¶ 31.) Significantly, the
conduct of the Dimon, Long, Auvil and Curry was so egregious that they have faced discipline

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and/or termination for their actions. (Amended Complaint, ¶ 45.) It can easily be inferred that it
shocks the conscience for an emergency medical technician to deliberately not respond to a
person repeatedly seeking aid, and in fact suggesting that the individual himself secure aid by
taking a bus or walking.
Significantly, the conduct of the Dimon, Long, Auvil and Curry was so egregious that
they have faced discipline and/or termination for their actions. (Amended Complaint, ¶ 45.) It
can easily be inferred that it shocks the conscience for an emergency medical technician to
deliberately not respond to a person repeatedly seeking aid, and in fact suggesting that the
individual himself secure aid by taking a bus or walking. This is because conscience-shocking
requires only that there be a conscious disregard of the risk of harm to the plaintiff. Rivas, 365
F.3d at 196; Ziccardi, 288 F.3d at 64-67.

C.

State-Created Danger: Element #3--Relationship Between State and Plaintiff
To meet the third element of the state-created danger test, there must be a relationship

between the state and the plaintiff in which there is a discrete plaintiff vulnerable to a foreseeable
injury. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 912 (3d Cir. 1997). This has been
interpreted to require more than fleeting and merely prefatory contact. Mark v. Borough of
Hatboro, 51 F.3d 1137, 1153 (3d Cir. 1995). “[T]he relationship requirement under the statecreated danger theory contemplates some contact such that the plaintiff was a foreseeable victim
of the defendant’s acts in a tort sense,” as opposed to the public at large. Morse, 132 F.3d at
912, citing Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996); see also Brown v.
Pennsylvania Dep‟t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 479 (3d Cir.
2003). This requirement arose after a murder victim‟s family alleged that the government was

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responsible for her death by releasing the murderer five months prior, yet the court found that
there was no state-created danger because of the lack of foreseeability. Morse, 132 F.3d at 912,
citing Martinez v. California, 444 U.S. 277 (1980).
In Morse, a school teacher was shot by an individual who entered through an open door
at the rear of the school. Morse, 132 F.3d at 904. The door had been propped open to facilitate
the movement of supplies during a construction project, and the victim‟s family brought a §1983
claim alleging a state-created danger via the open door. Id. at 904-05. The allegation was that
the school created a danger by allowing a deranged individual to enter the premises. Id. at 907.
The court noted that a state-created danger does not give rise to liability in the case of “random,
violent acts of private persons.” Id. at 913. The court ultimately did not have to decide whether
the third prong of the state-created danger test was met because it found that the other prongs
were not; however, the court stated that, as to who may be a foreseeable plaintiff, “[w]hat is clear
is that a member of the general public may not qualify. . . . [I]t would not appear that the statecreated danger theory of liability under §1983 always requires knowledge that a specific
individual has been placed in harm’s way. . . . The ultimate test is one of foreseeability.”
Morse, 132 F.3d at 913-14.
The Plaintiffs have adequately alleged the existence of a relationship whereby it was
foreseeable to the Defendants that Mitchell would be harmed. (Amended Complaint, ¶ 69, 71,
91, 93, 115, 117, 139, 141, 163, 165, 192, 194-95, 221, 223.) The Plaintiffs allege the repeated
communications between Mitchell, Edge, and the 911 dispatchers Auvil, Long and Curry—
describing Mr. Mitchell‟s condition and need for help, as well as Long and Lagomarsino‟s
repeated yet failed attempts to reach Mitchell. (Amended Complaint, ¶ 20-38.) There were ten
telephone calls made during the course of this two-day medical emergency, all of which sought

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medical assistance for the same ongoing medical emergency. (Amended Complaint, ¶ 40.)
Thus, it was no surprise to Allegheny County and the Allegheny County Department of
Emergency Services that Mr. Mitchell was in need of help, for Mr. Mitchell had been in direct
contact with the County‟s dispatchers Long, Auvil and Curry. It is not the case that Mr. Mitchell
was among a city full of unidentifiable Plaintiffs, but instead, he was but one person who had
been calling the same Defendants repeatedly for help. Thus, it is submitted that the risk of harm
to Mr. Mitchell was not only foreseeable, but open and obvious to the Defendants.
D.

State-Created Danger: Element #4--Affirmative Use of Authority

To meet the fourth element of the state-created danger exception, the plaintiff must show
that a state actor affirmatively used his authority in a way that either created a danger to the
citizen or made the citizen more vulnerable to danger than if the state had not acted at all. Hayes
v. Erie County Office of Children & Youth, 497 F.Supp.2d 684, 693 (W.D.Pa. 2007). This
fourth element can be broken down into three parts: (i) a state actor exercised his or her
authority; (2) the state actor took an affirmative action, and (3) this affirmative act created a
danger to the citizen or rendered the citizen more vulnerable to danger than if the state had not
acted at all. Hayes, 497 F.Supp.2d at 693.
In Hayes, a child services agency removed a mentally challenged girl from her parents‟
home and placed her in a foster home, and the adoptive mother physically abused the girl.
Hayes, 497 F.Supp.2d at 688. The court held that the fourth element of the state-created danger
test was met because the government, through its authority, took an affirmative act by removing
the girl from her home and placed her in foster care, which thereby rendered the girl more
vulnerable to danger. Id. at 696.

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In Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996), the police stopped an
intoxicated pedestrian couple but initially released the husband, who had asked to depart before
the wife so that he could go attend to the couple‟s children. Id. at 1201-02. The husband
assumed that the police would bring his intoxicated wife home. Id. at 1203. The police released
the woman unescorted, however, and she fell and suffered injuries. Id. The court found that the
police‟s act of detaining the wife and then sending her home in her inebriated condition
unescorted was an affirmative act for purposes of the fourth element of a state-created danger
because it made the wife more vulnerable to harm than if the police had done nothing. Id. at
1209. “It is conceivable that, but for the intervention of the police, [husband] would have
continued to escort his wife back to their apartment where she would have been safe. A jury
could find that [wife] was in a worse position after the police intervened than if they had not
done so. As a result of the affirmative acts of the police officers, the danger to [wife] was greatly
increased.” Id. at 1209.
Similarly applicable is the case of Taylor v. Altoona Area. Sch. Dist., 2010 WL 3471258,
16 (W.D.Pa. 2010), which involved the same child asthmatic situation previously discussed, but
in a more recent Western District opinion following a dismissal of certain defendants and
amendment to the complaint. The court noted that when the schoolteacher had deprived the
child of his ability to seek help for his asthma attacked, the teacher was liable under the statecreated danger theory “because the affirmative act that forms the basis of Taylor‟s claim is that
[the teacher] would not let [child] go to the nurse.” Taylor, 2010 WL 3471258 at 16.
In Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1230 (10th Cir.1999) a
challenged student was sexually assaulted in a bathroom, and the school principal promised the
student‟s mother that the student would be supervised thereafter. Id. at 1230. The student was

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assaulted again when the supervising teacher left her post at the bathroom to answer the phone.
Id. at 1230-31. The court noted that the principal was not liable for a state-created danger claim
since he had not committed an affirmative act; however, the court suggested that the teacher on
duty (not a party to the suit) could be liable under the state-created danger theory because she
“affirmatively placed [the student] in danger by leaving him to answer the phone.” Id. at 1239.
In the instant case, the Defendants used their authority as a governmental service and
took multiple affirmative actions that rendered Mr. Mitchell more vulnerable to harm than if the
Defendants had done nothing. Allegheny County and the Allegheny County Department of
Emergency Services processed calls made by Mr. Mitchell and Ms. Edge and dispatched three
separate ambulances to the scene. (Amended Complaint, ¶ 20-21, 26-28, 34, 38-41.) In the 911
call center, Defendant Long also initiated several telephone calls to Mr. Mitchell and Ms. Edge
to get further details on Mr. Mitchell‟s condition. (Amended Complaint, ¶ 41.) Upon the
affirmative representations that an ambulance would be sent, and upon an actual dispatch of
those ambulances, Mr. Mitchell relied on the help that was coming and therefore took no steps to
acquire alternative aid. (Amended Complaint, ¶ 72, 94, 118, 166, 195, 224.)
In the context of this time-sensitive medical emergency, Mr. Mitchell was made more
vulnerable to harm by virtue of his reliance on the approaching ambulances. Each moment in
which the ambulances were en route was an opportunity in which Mr. Mitchell could have
sought other options but did not. Like most citizens, Mr. Mitchell assumed that help would
actually arrive since ambulances had been dispatched. Moreover, because ambulances were
coming, it was incumbent on Mr. Mitchell to remain where he was because of the rescue inprogress and the EMTs‟ need to find him.

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As such, Mr. Mitchell is similar to the foster child in Hayes and the wife in Kneipp, for
all three were made more vulnerable to harm by virtue of the Defendants‟ conduct. That is, all
three individuals were ultimately in a more precarious position than they would have occupied
had the defendants done nothing.
Therefore, in light of the foregoing, the Plaintiffs have adequately set forth all of the
elements of the “state-created danger” exception such that the Plaintiffs‟ §1983 claim may stand.
II.

The Emergency Medical Services Act must be read in pari materia with the Political
Subdivision Tort Claims Act, such that Defendants are liable for gross negligence
and willful misconduct.
A.

Applicability of the Emergency Medical Services Act

The newest version of the Emergency Medical Services Act, “EMSA,” codified at 35 Pa.
Cons. Stat. §8101 et. seq., went into effect on February 16, 2010. However, because the
underlying injury in this case occurred during the two-day period of February 6-7, 2010, the
prior version of the Emergency Medical Services Act, codified at 35 Pa. Cons. Stat.
§6931(j)(2), which has been repealed, will govern this case. “No statute shall be construed to be
retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa. Cons.
Stat. §1926. The applicable substantive portions of both the new and prior Acts are nearly
identical and have no notable distinctions.

The prior Act provides EMS personnel with

immunity from suit for good faith attempts to render medical care unless they are guilty of gross
or willful negligence. 35 Pa. Cons. Stat. §6931(j)(2). The current Act provides EMS personnel
with immunity from suit for good faith attempts to render medical care absent a showing of gross
negligence or willful misconduct. 35 Pa. Cons. Stat. §8151(2).
The other Act potentially applicable in the instant matter is the Political Subdivision Tort
Claims Act, “PSTCA,” codified at 42 Pa. Cons. Stat. §8541. The PSTCA provides immunity to

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officials except when they cause injury through acts constituting a crime, actual fraud, actual
malice or willful misconduct. 42 Pa. Cons. Stat. §8550.
Principles of statutory construction mandate that the PSTCA be read together with
the EMSA, such that the EMTs in this case are not entitled to the PSTCA’s immunity
provisions despite being associated with a governmental entity. 1 Pa. Cons. Stat. §1932(a)
mandates that “Statutes or parts of statutes should be read in pari materia when they relate to the
same persons or things or to the same class of persons or things.” Goryeb v. Com., 575 A.2d
545, 548 (Pa. 1990). Moreover, “[s]tatutes in pari materia shall be construed together, if
possible, as one statute.” 1 Pa. Cons. Stat. §1932(b).
In Sherk v. County of Dauphin, 614 A.2d 226, 227-28 (Pa. 1992), the plaintiff was a
police officer who was injured when an individual had been prematurely released from a state
mental health institution. The plaintiff sued his county and the state hospital for his damages,
alleging that there were violations of the Mental Health Procedures Act. Id. The government
entities claimed to be entitled to sovereign immunity under the sovereign immunity statute, 42
Pa. Cons. Stat. §8521, as opposed to the PSTCA at issue in this case, 42 Pa. Cons. Stat. §8541.
Id. at 228. The Court noted that it was not analyzing the PSTCA, though it did identify the many
similarities between §8521 and §8541. Additionally, it noted that none of the cases cited by the
defense (pertinent to the PSTCA) had involved an interplay between the immunity statute and
the Mental Health Procedures Act. Sherk, 614 A.2d at 231-32.
Similar to the EMSA, the Mental Health Procedures Act, 50 Pa. Cons. Stat. §5114(a),
provides immunity to mental health professionals absent gross negligence or willful misconduct.
Sherk, 614 A.2d at 231-32. The Supreme Court noted that the immunity statute should be read
in pari materia with the Mental Health Procedures Act, for that would be in keeping with the

16

intention of the General Assembly because the statues pertained to the same classes of persons or
things. Id. at 232. “To exculpate and/or immunize a party who, through gross negligence or
willful misconduct, has unleashed into the community a person non compos mentis, who has
been diagnosed to be a clear and present danger to himself or others, is neither consistent with
the required in pari materia construction of the relevant statutes, nor public policy, nor good
sense.” Sherk, 614 A.2d at 233, citing Goryeb v. Com., 575 A.2d 545, 549 (Pa. 1990). The
Court therefore held that, by reading the Mental Health Procedures Act in pari materia with the
immunity statute, the governmental entities could be liable under the Mental Health Procedures
Act, despite the otherwise-applicable protections afforded by the immunity statute. Sherk, 614
A.2d at 233.
The case law involving the interplay between the PSTCA and the EMSA (even in the
prior version applicable to this case) is spare. In the case of Flood v. Silfies, 933 A.2d 1072,
1072-73 (Pa. Cmwlth. Ct. 2007), the plaintiffs brought an action against EMTs who had
allegedly provided negligent care that caused birth defects. The court granted immunity to the
EMTs under the PSTCA, 42 Pa. Cons. Stat. §8541, but the court also never had to consider the
applicability of the EMSA “because [Plaintiffs] failed to plead the gross negligence required to
overcome the immunity afforded under [EMSA] provisions.” Flood, 933 A.2d at 1073.
Nevertheless, the explicit purposes of the current and prior EMSA suggest that the EMSA
be applied in this case, despite any possible immunities which may exist under the PSTCA. The
current EMSA explicitly establishes the scope of an EMTs liability for civil damages—none,
“absent a showing of gross negligence or willful misconduct.” In the current EMSA, Clause
Eight of the Declaration of Policy explicitly states that the EMSA is to be liberally construed. 35
Pa. Cons. Stat. §8102(8). No provision of the current EMSA suggests anything other than

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applying the EMSA to the instant matter. It is illogical to assume that the Legislature would pass
such a broad statute, to assure that there is “high quality” in an “essential public service,” if it did
not intend for that statute to be the measure of an EMT‟s on-the-job conduct. 35 Pa. Cons. Stat.
§8102 (1)-(2). Moreover, the current EMSA‟s Declaration of Policy states the Legislature‟s
intent to “maintain an effective and efficient emergency medical services system.” 35 Pa. Cons.
Stat. §8102(8). This evidences a legislative intent to ensure uniform quality in the provision of
emergency medical services, which are “an essential public service.”
Likewise, the prior version of the EMSA states:
It is the intention of the General Assembly and the purpose of this act to establish and
maintain an effective and efficient emergency medical services system which is
accessible on a uniform basis to all Pennsylvania residents and to visitors to this
Commonwealth. The General Assembly further intends that residents and visitors to this
Commonwealth should have prompt and unimpeded access to basic and advanced life
support emergency medical care throughout this Commonwealth.
35 Pa. Cons. Stat. §6922(b)(1-2).
Thus, there are two possible outcomes in this case. The first, which would result from
reading the PSTCA in pari materia with the EMSA, allows the Plaintiffs to recover in the instant
case for the Defendants‟ gross or willful negligence. Such an interpretation would be in line
with following the general rule of governmental immunity established by the PSTCA, yet would
also provide deference to the specific, narrow text of the EMSA (which is to be liberally
construed,) which speaks to the exact issue before this court. The issue before this court—the
conduct of the Defendants in a medical emergency—involves only the provision of emergency
medical care. That is, the entire basis for this lawsuit is conduct which is addressed by the
EMSA, such that consideration of the EMSA is central and not tangential. Moreover, allowing
an in pari materia reading of the two statutes here is consistent with Sherk, for such a reading
would properly balance both statutes—the broad immunity of the PSTCA with the narrow

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exceptions and public policies of the EMSA. Sherk, 614 A.2d at 233. Further, an in pari
materia construction here neither completely nor even partially ignores the PSTCA, for such a
reading would only consider the EMSA along with the PSTCA. Such a reading is also keeping
with the legislative intent behind the EMSA, for the purpose behind enacting the EMSA was “to
establish and maintain an effective and efficient emergency medical services system.” 35 Pa.
Cons. Stat. §6922(b)(1).
The alternative approach, involving deference to only the PSTCA, would completely
ignore the existing and recently-updated EMSA which clearly intends to allow for liability on the
part of individuals who act in a manner as the Defendants have here. By not examining the
EMSA in conjunction with the PSTCA, the Court would overlook a specifically-enacted and
narrow exception to the general rule of immunity.

It is notable that an in pari materia

construction would not abrogate immunity entirely; the general rule of non-liability would persist
unless and until the Plaintiffs are able to prove that the Defendants acted with gross or willful
negligence. Moreover, to deny an in pari materia construction would create the effect of having
a duly-enacted statute that is directly applicable to this case, yet having no force and effect and
providing no remedy. In such a situation, the Plaintiffs here would have absolutely no redress
for their injuries, despite meeting the specific and narrow exceptions of the EMSA. Such a result
would confound both the “public policy and good sense” discussed in Sherk, where the court
determined that an in pari materia construction was vital. Sherk, 614 A.2d at 233.
Other states have also held that specifically-enacted statutes pertaining to emergency
services supplant general provisions of governmental immunity. In Malcolm v. City of East
Detroit, 468 N.W.2d 479, 480 (Mich. 1991), the court considered Michigan‟s Emergency
Medical Services Act, M.C.L. §333.20701, which imposes liability for acts or omissions

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constituting gross negligence or willful misconduct.

By contrast, the Governmental Tort

Liability Act, M.C.L. §3.996(101) provides immunity. Malcolm, 468 N.W.2d at 480. The court
noted that “the Legislature, in adopting the EMSA, clearly meant to single out certain
governmental employees and their governmental employers for standards of immunity different
from those extant in the more comprehensive GTLA.” Id. at 482. “In enacting the EMSA, it
seems that the Legislature desired uniform regulation of emergency medical services . . . .” Id. at
484. Finally, the court noted that the EMSA and GTLA must be read in pari materia because of
their common purposes in providing immunity, absent the specifically-mentioned exceptions. Id.
at 485. Thus, “these two acts should be read as constituting one law, despite having been
enacted at different times and without reference to one another. We must construe these two
separate provisions in order to preserve the intent of each and, if possible, in such a way that the
effectiveness of each is maintained.” Id. at 485.

III.

There has been a proper showing of the existence of a duty, such that the state law
claims for Gross Negligence and Willful Misconduct may stand.
A.

There was a duty owed.

The case of Melendez v. City of Philadelphia, 466 A.2d 1060, 1063-64 (Pa. Super. Ct.
1983) states that, when alleging common law claims for willful misconduct, there is no duty
imposed on the government or its employees absent a “special relationship,” which requires that
the defendants were:
(1) aware of the individual‟s particular situation or unique status;
(2) had knowledge of the potential for the particular harm which the individual suffered,

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and
(3) voluntarily assumed, in light of that knowledge, to protect the individual from the
precise harm which was occasioned.
This is the test used to determine whether the Defendants owed a duty to Mr. Mitchell under
state law, such that his state law claims may proceed. (Please note that the “special relationship”
test for a “duty” under Melendez is entirely distinct from the “special relationship” exception in
the context of §1983 claims.)
In Melendez, the plaintiff was shot in the eye and later sued his city for nonfeasance in
handling racial tensions and crime in his neighborhood. Melendez, 466 A.2d at 1061-62. The
court ultimately found that the city owed no duty to this particular plaintiff, for the city had not
entered into a special relationship with this individual. Id. at 1063. The plaintiff conceded that
he had never made the police aware of the ongoing racial tensions in his neighborhood, nor had
he requested police protection to quell his fears of violence. Moreover, “minor [injured plaintiff]
did not know his assailant, and no evidence has been presented to indicate that anyone, including
the police or the human relations commission, knew that [the assailant] had a gun or that he
would use it.” Id. at 1064. Further, “the police had no notice that [injured plaintiff] was
specifically in danger, nor did they fail to respond once the incident was reported.” Id. at 1065.
Therefore, the Melendez court found that there was no duty owed because of the lack of a
“special relationship.” Id. By contrast, the Melendez court cited parallel cases where the police
had been informed of a particular danger, in the form of an armed individual presenting a threat
to the specific plaintiffs. In those instances, the court found a duty did exist because there was a
“special relationship” by virtue of having knowledge of a particular danger. Melendez, 466 A.2d
at 1064-65, citing Barnhart v. Henson, 7 Pa. D. & C.3d 678 (Pa. Com. Pl. 1978) and Wuethrich
v. Delia, 341 A.2d 365 (N.J. Super. Ct. 1975).

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In the case of Rankin v. Southeastern Pennsylvania Transp. Auth., 606 A.2d 536, 537
(Pa. Cmwlth. 1992), the plaintiff was a passenger on a city subway car who was stabbed by
another passenger while the train was in motion. The defendant was a city police officer who
witnessed the stabbing and the events leading up to it. Rankin, 606 A.2d at 537. The officer
escorted the attacker and plaintiff from the train once it had stopped, and the officer then
instructed the plaintiff to lie down on the platform, assuring the plaintiff that he would be alright.
Id. at 537. In an action against the officer, the court considered the “special relationship” test
and found that the officer had assumed a duty because he witnessed the stabbing, was aware that
the plaintiff had been injured, and stepped in to assist the plaintiff off the train and onto the
platform. Id. at 539.
See also A T & T Corp. v. CPB Int‟l, Inc., 2007 WL 1811213, 15 (M.D.Pa. 2007) (“Even
though a legal or contractual duty of care on the part of the defendant may not exist under
Pennsylvania law, the court may nonetheless impose liability on a defendant who assumes a duty
of care by his affirmative actions.” This rule is predicated upon §323 of the Restatement
(Second) of Torts, whereby “A plaintiff will satisfy its burden under Section 323 if it proves one
of the two elements-either increased risk of harm or detrimental reliance.”)
The instant case is immediately distinguishable from Melendez, for the Plaintiffs‟ case
involves a situation where all of the Defendants had particularized knowledge and awareness as
to the danger specifically facing Mr. Mitchell. That is, Mr. Mitchell was unlike the gunshot
victim in Melendez, who just happened to live in a dangerous neighborhood yet who faced no
particularly-identified danger. Melendez, 466 A.2d at 1064. Instead, Mr. Mitchell and Ms. Edge
made a total of ten calls to 911 seeking help for Mr. Mitchell‟s medical emergency. (Amended
Complaint, ¶ 40.) Going beyond Melendez‟s generalized dangers, the 911 calls made in Mr.

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Mitchell‟s medical emergency described Mr. Mitchell‟s specific symptoms of severe abdominal
pain, and further that such pain was so severe that Mr. Mitchell was even unable to walk.
(Amended Complaint, ¶ 20, 24, 26, 30.) Dispatcher Long maintained contact with Mr. Mitchell
and Ms. Edge “during the course of this medical emergency” by calling them several times to get
additional details on Mr. Mitchell‟s condition. (Amended Complaint, ¶ 41.) The Defendants
also undertook to protect Mr. Mitchell from the precise harm which was occasioned because
Allegheny County, the Allegheny County Department of Emergency Services, Auvil, Long and
Curry ordered the dispatch of ambulances, and three separate ambulances were in fact sent,
headed by Long and Lagomarsino and overseen by the City of Pittsburgh and McCaughan,
Bocian and Romano. (Amended Complaint, ¶ 21-23, 27-29, 32, 34-37.) See Morena v. S. Hills
Health Sys., 462 A.2d 680, 685 (Pa. 1983) (“the duty of the paramedics arose when they were
called to the scene . . . .”)
Thus, it is not the case that the Defendants‟ actions in this case were for an unknown or
undefined purpose, but instead, the concert of actions were entirely designed to voluntarily
protect Mr. Mitchell from the exact harm that the Defendants knew he was facing. Therefore, it
has been established that the Defendants owed a duty to Mr. Mitchell.
B.

There has been an adequate showing of “willful misconduct.”

“In any action against a local agency or employee thereof for damages on account of an
injury caused by the employee in which 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, the provisions of sections 8545 (relating to official liability generally), 8546
(relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to
limitations on damages) shall not apply.” 42 Pa. Cons. Stat. §8550. “Willful misconduct”

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requires a showing that the actor “desired to bring about the result that followed, or at least that
he was aware that it was substantially certain to ensue.” Williams v. City of Philadelphia, 569
A.2d 419, 421 (Pa. Cmwlth. Ct. 1990), quoting Evans v. Philadelphia Transp. Co., 212 A.2d 440,
443 (Pa. 1965). “Willful misconduct” requires that the actor have intentionally done something
in disregard of a risk known to him or so obvious that he must be taken to have been aware of it,
and so great as to make it highly probable that harm would follow; it is usually accompanied by a
conscious indifference to the consequences. Pursel v. Parkland Sch. Dist., 70 Pa. D. & C.4th
129, 136 (Pa. Com. Pl. 2005).
In Williams, EMTs were dispatched to the decedent‟s home after he fell down a flight of
stairs. Williams, 569 A.2d at 420. The EMTs failed to revive the patient and concluded that he
would “sleep it off” before leaving the scene. Id. The patient was still found to be unconscious
hours later, and the EMTs returned to transport him to the hospital, where he died. Id. The court
did not abrogate immunity because the plaintiff had not alleged that the EMTs were aware that
the patient would die. Id. at 421-22. That is, due to their belief that the decedent was in no
danger, the EMTs did not have the awareness that they were disregarding a substantial risk. Id.
Here, the Plaintiffs have alleged that the Defendants had the awareness of the potential
results of their conduct—going beyond the shortcomings of Williams. Williams, 569 A.2d at
421-22. Such an awareness, while not necessarily reaching the level of “intent,” is sufficient to
meet the level of conscious disregard that is necessary for there to be “willful misconduct.” If
there has been “willful misconduct,” the immunity provisions are abrogated such that the
Defendants may be held liable. Murphy v. Orloff, 2004 WL 2861891, 3 (E.D.Pa. 2004).
The Plaintiffs have plead facts which set forth the Defendants‟ conscious disregard to the
risk of harm that Mr. Mitchell ultimately suffered. The City of Pittsburgh, McCaughan, Bocian,

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Romano, Long and Lagomarsino were assigned the task of going to Mr. Mitchell‟s residence and
rescuing him from this medical emergency, yet all three crews stopped short of reaching the
residence, and all of the three crews refused to make any additional efforts to reach Mr. Mitchell.
(Amended Complaint, 21-23, 25, 28-29, 32, 34-35, 37.) Further, all three crews were aware that
Mr. Mitchell needed medical attention to such an extent that he was unable to walk to meet their
ambulance, yet all three crews disregarded this ongoing and obvious risk and left the scene—
leaving Mr. Mitchell behind. (Amended Complaint, ¶ 23-25, 29-32, 35-37.) This disregard of a
risk is most evident in a conversation involving Defendant Josie Dimon, who stated, on tape, “He
ain‟t (expletive) comin‟ down, and I ain‟t waiting all day for him. I mean, what the (expletive)?
This ain‟t no cab service.” (Amended Complaint, ¶ 31.) It could be argued that when an EMT is
responding to any emergency there is always a conscious disregard of the risk of serious harm if
that EMT chooses not to respond, for 911 calls, by definition, carry with them an underlying
emergency. In this case, the risks were even more obvious, for a total of ten calls were made for
help by the same people and for the same medical emergency. (Amended Complaint, ¶ 40.) The
high volume of such calls compels the inference that the EMTs with the receipt of such
information consciously disregarded all risks of harm when they decided to not render aid to Mr.
Mitchell, thereby creating instances of willful misconduct.
Moreover, Allegheny County, the Allegheny County Department of Emergency Services,
Long, Auvil and Curry similarly took a conscious disregard to the risk of serious harm to Mr.
Mitchell. Through the course of the ten calls, the calltakers were informed of the nature and
extent of this emergency: that Mr. Mitchell had severe abdominal pain to such an extent that he
was unable to walk. (Amended Complaint, ¶ 20, 24, 26, 29-32, 35, 38, 40-44.) Moreover,
already aware of Mr. Mitchell‟s dire situation, Defendant Long made calls herself to Mr.

25

Mitchell and Ms. Edge to get further updates on Mr. Mitchell‟s condition. (Amended Complaint,
¶ 41.) Despite this knowledge, and despite her ongoing contact with the EMTs, Long decided to
not inform the EMTs of the extent of Mr. Mitchell‟s pain, thereby consciously taking an
indifference to the risks posed by the medical emergency.

(Amended Complaint, ¶ 42.)

Additionally, Auvil and Curry failed to review and/or research the calls to see how long Mr.
Mitchell had been waiting or if more resources were needed to render aid.

(Amended

Complaint, ¶ 43-44.) Despite the number of calls, Auvil and Curry decided to treat each of the
ten calls as a new incident entirely, thereby consciously disregarding the obvious risks of harm.
(Amended Complaint, ¶ 46.)
C.

There has been a proper showing of “gross negligence,” for that requires a lower
showing than the “willful misconduct” standard.
“There are many decisions of the Pennsylvania [courts] and federal courts applying

Pennsylvania law and which discuss the concept of gross negligence. Analyzing the holdings
and the language of the numerous Pennsylvania cases on this issue is more similar to looking at
multiple pellets from a shotgun as compared to a single bullet from a rifle.” Royal Indem. Co. v.
Sec. Guards, Inc., 255 F.Supp.2d 497, 505 (E.D.Pa. 2003). “As a general rule, courts view it as a
want of even scant care, but something less than intentional indifference to consequences of
acts.” Fidelity Leasing Corp. v. Dun & Bradstreet, Inc., 494 F.Supp.786, 790 (D.C.Pa. 1980).
“[T]he general consensus finds [that] gross negligence constitutes conduct more
egregious than ordinary negligence but does not rise to the level of intentional indifference to the
consequences of one‟s acts. . . . It appears the legislature intended to require that liability be
premised on facts indicating more egregiously deviant conduct than ordinary carelessness,
inadvertence, laxity, or indifference. . . . The behavior of the defendant must be flagrant, grossly

26

deviating from the ordinary standard of care.” Ratti v. Wheeling Pennsylvania Steel Corp., 758
A.2d 695, 703-04 (Pa. Super. Ct. 2000). “Willful misconduct is more than mere negligence or
even gross negligence.” John G. v. Ne. Edu. Intermediate Unit 19, 490 F.Supp.2d 565, 585
(M.D.Pa. 2007). Because the plead facts rise to meet the level of “willful misconduct,” it is
easily deduced that such conduct constitutes the type of “egregiously deviant conduct” to also
meet the lower standard of “gross negligence.”

CONCLUSION
1.

The Plaintiffs have sufficiently plead that there has been a “state-created danger.”

The Plaintiffs have alleged facts to satisfy the four elements of a “state-created danger” by
showing (1) that the harm Mr. Mitchell suffered was foreseeable and direct; (2) that the
Defendants acted with a degree of culpability that shocks the conscience; (3) that there was a
relationship between Mr. Mitchell and the Defendants such that he was a foreseeable victim of
the Defendants‟ acts, and (4) the Defendants have affirmatively used their authority in a way that
made Mr. Mitchell more vulnerable to harm than if the Defendants had not acted at all.
2.

The Emergency Medical Services Act, which provides an exception whereby

there can be liability for the city, county and their respective employees upon a showing of
willful or gross negligence, must be read in pari materia with the Political Subdivision Tort
Claims Act. Moreover, the Political Subdivision Tort Claims Act, standing alone, still abrogates
immunity when individuals are engaged in willful misconduct.
3.

The Plaintiffs have adequately set forth a duty that was owed by the Defendants,

such that the Plaintiffs‟ state law claims for Gross Negligence and Willful Misconduct may
withstand.

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For these reasons, the Defendants‟ Motion to Dismiss should be denied.

In the

alternative, Plaintiffs respectfully seek leave of court to amend their complaint in the event the
court determines more specifics are necessary and/or to add alternative causes of action.

Respectfully submitted,

_________/s/ Alan Perer__________
Alan H. Perer, Esquire
Pa. I.D. # 23603
SWENSEN PERER & KONTOS
Firm #262
One Oxford Centre, Suite 2501
Pittsburgh, PA 15219
[phone]
[e-mail]

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the BRIEF IN OPPOSITION TO
MOTION TO DISMISS FILED BY DEFENDANTS (CITY OF PITTSBURGH ET AL.) was
served upon the following counsel of record, this 25th day of January, 2011, by first class mail,
postage prepaid:
John F. Doherty, Esquire
Daniel D. Regan, Esquire
Michael E. Kennedy, Esquire
City of Pittsburgh Department of Law
Room 313, City-County Building
414 Grant Street
Pittsburgh, PA 15219-2285
[phone]
[phone] (f)
Counsel for Defendants, City of Pittsburgh,
Robert J. McCaughan, Mark A. Bocian,
Ronald W. Romano, Josie Dimon, Andrew
Lagomarsino, Kim Long, Norman Auvil, and
Ron Curry

Caroline Liebenguth, Esquire
Michael H. Wojcik, Esquire
Allegheny County Law Department
300 Fort Pitt Commons
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
[phone]
Counsel for Defendants, Allegheny County and
County of Allegheny Department of Emergency
Services

Respectfully submitted:
SWENSEN PERER & KONTOS
/s/ Alan H. Perer
Alan H. Perer, Esquire
Pa. ID No. 23603
[e-mail]
One Oxford Centre, Suite 2501
301 Grant Street
Pittsburgh, PA 15219
[phone]
[phone] (f)

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