ESTATE OF VINCENZO RUDI v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE OF VINCENZO RUDI et al :

Plaintiffs, :

v. No. 24-cev-5904

CITY OF PHILADELPHIA et al

Defendants. :

MEMORANDUM

Plaintiffs Estate of Vincenzo Rudi, Dominic Rudi, and Sandra Rudi bring this action

against the City of Philadelphia (“City”) and Unknown Officer No. 1. The City filed a motion to

dismiss, and for the reasons that follow, that motion is granted.

I FACTUAL BACKGROUND

On January 2, 2022, Unknown Officer No. 1 attempted to arrest Vincenzo Rudi

(“decedent”) pursuant to an arrest warrant at decedent’s car repair garage. ECF No. 3 4 12

[hereinafter Am. Compl.]. The Amended Complaint does not explain the lead up to the shooting,

but Unknown Officer No. 1 fired, at least twenty times, “his Sig Saur M400 rifle wherein decedent

was shot behind a vehicle in the back of decedent’s car repair garage.” /d. J§ 12,20. The decedent

also used a firearm and attempted to fire it once from the back of his garage. Id. § 17. Decedent

was pronounced dead later that day. Jd. § 13. Plaintiffs averred that there was no indication that

Unknown Officer No. 1 attempted to talk to the decedent prior to shooting the decedent, even

though Unknown Officer No. 1 was in the front doorway of the garage and decedent was in the

back of the garage. Jd. 14, 18-19. Apparently, information about decedent’s mental health was

given to the police prior to the attempted arrest. Jd. 4 15. Police were strongly urged to take

decedent’s mental health into account when making the arrest, but Plaintiffs claimed the police did

not do so. Id. 4 16.

Plaintiffs—Estate of Vincenzo Rudi, and Dominic Rudi and Sandra Rudi (parents of the

decedent)—claimed that the City is also liable because Unknown Officer No. 1 acted under “color

of law as an employee/servant/agent of the City of Philadelphia, deprived the decedent of rights

and privileges secured by the Constitution and laws of the United States including the due process

clause of the 14th Amendment of the Constitution of the United States and the 4th Amendment of

the Constitution of the United States as well as pursuant to the Constitution of the Commonwealth

of Pennsylvania.” Am. Compl. f§ 2, 21.

Plaintiffs alleged ten counts in their Amended Complaint: Count I, negligence against

Unknown Officer No. 1; Count II, negligence against the City; Count III, survival action against

both defendants; Count IV, wrongful death against both defendants; Count V, claim for punitive

damages against both defendants; Count VI, a Section 1983 claim against Unknown Officer No.

1, alleging violations of constitutional rights including due process; Count VII, a Section 1983

claim against the City of Philadelphia, alleging violations of constitutional rights, including due

process; Count VIII, vicarious liability against the City of Philadelphia; Count IX, “Deprivation

of Rights Under the Pennsylvania Constitution,” apparently against both defendants; and Count

X, “Violation of Ministerial Duties,” apparently against both defendants.

Ul. LEGAL STANDARD

A defendant may move to dismiss a lawsuit for “failure to state a claim upon which relief

can be granted.” Feb. R. Crv. P. 12(b)(6). “To survive a motion to dismiss, a [plaintiff's]

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.”” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). When ruling on a Rule 12(b)(6) motion to dismiss, this

Court accepts Plaintiffs’ allegations in thetr Amended Complaint and makes reasonable inferences

based on the facts, in the light most favorable to Plaintiffs. Davis v. Wells Fargo, 824 F.3d 333,

341 (Gd Cir. 2016). This Court need not accept legal conclusions and conclusory statements in

Plaintiffs’ Amended Complaint. Jd.

Il. DISCUSSION

The counts pertaining to the City are Counts II, III, lV, V, VII, VII, EX, and X. Count II

is dismissed, with prejudice, against the City. Plaintiffs Dominic Rudi and Sandra Rudi’s claims

in Counts IIT and IV are dismissed, with prejudice, against the City. Count V is dismissed, with

prejudice, against the City. Count VII is dismissed, without prejudice, against the City. Count

VIII is dismissed, with prejudice, against the City. Plaintiffs have voluntarily withdrawn Counts

IX and X. ECF No. 5 at 10 [hereinafter Pls.’ Resp. □□

A. Counts II, V, and VIU: The City is Immune from Plaintiffs’ State Law

Claims.

The Pennsylvania Tort Claims Act (“PTCA”) states “[e}xcept as otherwise provided in this

subchapter, no local agency shall be liable for any damages on account of any injury to a person

or property caused by any act of the local agency or an employee thereof or any other person.” 42

Pa. Cons. Stat. § 8541. Tort immunity of the City is an “absolute defense.” McShea vy. City of

Philadelphia, 606 Pa. 88, 99 (2010). The PTCA provides nine enumerated exceptions to

governmental immunity, though none are applicable here. See 42 Pa. Cons. Stat. Ann. § 8542.

Therefore, the City cannot be liable under state law for tortious conduct, including Counts I

(negligence), V (punitive damages), and VIII (vicarious liability, deriving from Unknown Officer

No. 1’s tortious conduct).

Plaintiffs argued that Section 8550 revokes the City’s immunity because Unknown Officer

No. 1’s actions constituted willful misconduct. Section 8550 states “‘[iJn any action against a local

agency ... 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 limitation on damages) shall not

apply.” 42 Pa. Cons. Stat. § 8550. Notably, Section 8550 does not null immunity for Sections

8541 and 8542, which relate to governmental immunity, and so reference to Section 8550 does

nothing to advance Plaintiffs’ argument.

B. Counts IIT and IV: Dominic Rudi and Sandra Rudi Cannot Individually

Assert Survival and Wrongful Death Actions.

Survival and wrongful death actions may only be brought by a representative of a

decedent’s estate. See Bouchon v. Citizen Care, Inc., 176 A.3d 244, 259 (2017) (“an individual,

even if he or she qualifies as a wrongful death beneficiary, may not institute an action individually

on his or her own behalf.”); see also Ferencz v. Medlock, 905 F. Supp. 2d 656, 671 (W.D. Pa.

2012)“. .. Pennsylvania law clearly states that an action for wrongful death shall only be brought

by the personal representative of the decedent for the benefit of those persons entitled by law to

recover damages for such wrongful death.”). Even though Dominic Rudi and Sandra Rudi may

be the proper beneficiaries of the decedent’s estate, they may not bring these claims against the

City in their individual capacity. Dominic Rudi may bring these claims as the personal

representative of the Estate of Vincenzo Rudi. Consequently, Dominic Rudi and Sandra Rudi’s

claims in Counts III and IV are dismissed against the City, but the Estate of Vincenzo Rudi’s

claims in Counts ITI and IV remain alive.

C. Count VII: Plaintiffs’ Complaint Failed to Plead Adequately a Section

1983 Claim Against the City.

Plaintiffs’ allegations in Count VII are lackluster. The Amended Complaint does not

clearly articulate the theory underlying Plaintiffs’ Section 1983 claim against the City. To the

extent Plaintiffs claimed Section 1983 liability by way of respondent superior, that is dismissed.

See McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (“a municipality cannot be held liable

under § 1983 for the constitutional torts of its employees by virtue of respondeat superior.”). To

the extent Plaintiffs claimed Section 1983 liability by way of a Monell claim, as argued in

Plaintiffs’ response, such claim is deficient under Federal Rule of Civil Procedure Rule 8. Pls.’

Resp. at 9-10. Plaintiffs asserted for the first time in its response to the City’s motion to dismiss

that the City was liable under Monell for its “policy or custom.” Jd. at 10. Plaintiffs cannot

supplement their pleading with new allegations or facts in their response to a motion to dismiss;

the correct procedure is to seek leave to amend. Even so, the allegations in Plaintiffs’ brief fall

short of making out a plausible Monell claim. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir.

2014) (“Simply paraphrasing § 1983 does not meet Rule 8’s pleading requirements because it fails

to satisfy the rigorous standards of culpability and causation required to state a claim for municipal

hiability.”) (cleaned up).

Plaintiffs also requested discovery to make out its Monell claim. However, because

Plaintiffs have not satisfied Rule 8’s pleading standard, this Court cannot grant limited discovery

to help them reach that standard. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because

respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or

otherwise.”). The Court dismisses Count VII, without prejudice. If Plaintiffs can allege more facts

to support a Section 1983 claim against the City, then they may move to amend their complaint.

IV. CONCLUSION

For the forgoing reasons, Count II, V, and VIII are dismissed, with prejudice, against the

City. Plaintiffs Dominic Rudi and Sandra Rudi’s claims in Counts III and IV are dismissed, with

prejudice, against the City. Count VII is dismissed, without prejudice, against the City. Counts

IX and X are dismissed because Plaintiff voluntarily dismissed the claims.

BY THE COURT:

ty he Loot

HON. KAI N. SCOTT

United States District Court Judge