Federal Judge Dismisses Pennsylvania 911 Dispatch Lawsuit
May 05—A federal judge on Monday dismissed a lawsuit alleging Luzerne County was negligent in a dispatching error in a fatal Mocanaqua fire, saying the victim's estate has failed to establish that her due process rights were violated by a state-created danger.
The family of 52-year-old Michelle Dzoch filed the lawsuit after her death last May, arguing a dispatching error that sent firefighters to a fictitious address 15 miles away from the fire at 76 Main St. in the Mocanaqua section of Conyngham Township amounted to a "state-created danger" because Dzoch was disabled and had no choice but to rely on 911 for emergency help.
During arguments in federal court last month, defense attorney David Heisler maintained residents do not have a constitutional right to emergency services.
In his ruling Monday, U.S. District Judge A. Richard Caputo said the plaintiffs, led by attorney Bill Anzalone, "failed to meet the high standard required to state a claim that (Dzoch's) constitutionally protected substantive due process rights were violated by a state-created danger."
According to court documents, Dzoch's daughter Holly Dzoch called 911 about 10:45 a.m. May 15, 2014, to report the fire, telling call taker Debra Pac she was at "76 Main St., Moc." Asked for clarification, Holly Dzoch went on to say she was in "Conyngham Borough, Mocanaqua," court records show.
Pac told everyone to get out of the house and began dispatching units to the address provided, which does not exist. Despite getting several other calls about the fire and having firefighters question the location, Pac, who has since been fired, did not correct the address for eight minutes.
By the time crews got to her, Dzoch had died in the fire started by her two grandchildren—ages 3 and 5 at the time—playing with a lighter in a bedroom.
The lawsuit—which named, among others, Luzerne County, Luzerne County 911, Pac and supervisor James Ostrowski—alleged the county had a mandate to provide emergency services and that its failure to provide them in a timely manner amounted to a state-created danger.
In his ruling, Caputo cited caselaw that there is no federal constitutional right to rescue services and there is no right to affirmative protection from non-governmental harm, with some exceptions, including that the government's behavior "shocks the conscience."
The judge noted that the recording showed Pac attempting to clarify the address and that the subsequent calls and discussion were full of "ongoing confusion."
"Viewing all facts in a light most favorable to the plaintiff, she has failed to show that a state actor affirmatively took action in a way that created a danger to the decedent or that rendered the decedent more vulnerable to danger than had the state not acted at all," Caputo wrote. "It appears that the dispatcher was merely reacting to the information provided to her."
The judge ordered the federal case dismissed, opting not to rule on the claims Dzoch's estate was seeking under state law. The Anzalone Law Office in March discontinued a state lawsuit in the case because of the federal action.
Reached by phone Monday, Anzalone said an appeal on the federal question would be unlikely to succeed. Dzoch's family will have to assess the situation and decide whether to pursue the case in state court, where they would have to prove Pac acted intentionally, he said.
Anzalone noted that Pac was clearly in error when, over the course of eight minutes, she missed seven cues that she was guiding firefighters to the wrong address.
"The correction never occurred on those seven separate occasions," Anzalone said. "The question is whether or not that was intentional."
Copyright 2015 - The Citizens' Voice, Wilkes-Barre, Pa.
