author: PADILLA, J.,

text:
    School District of Philadelphia v. Gym

      Miles H. Shore, for appellant.

      Michael Churchill and Benjamin David Geffen, for appellee.
    Sept. 26, 2014
   PADILLA, J.,

The School District of Philadelphia (“appellant”) appeals from this court’s order of June 30, 2014, denying its appeal from the final determination of the Pennsylvania Office of Open Records (“OOR”).

FACTUAL AND PROCEDURAL HISTORY

On December 19, 2012, Helen Gym (“appellee”), on behalf of Parents United for Public Education (“Parents United”), filed a Right to Know Law (“RTKL”) request for records containing a list of schools identified by Boston Consulting Group (“Boston”) as top candidates for school closures, as well as the criteria for choosing schools recommended for closure.

On January 14, 2013, appellant partially denied the request, providing only the criteria used to identify the schools and holding that the other records requested were draft policies reflecting the internal, pre-decisional deliberations of appellant and subject to exemption from the Right to Know Law per 65 P. S. § 67.708.

On February 14, 2013, appellee appealed to the OOR.

On March 19,2013, appellant provided a supplemental position statement, namely that the withheld records were produced by Boston to identify the schools to be closed while Boston was under contract with the William Penn Foundation. The Foundation had contracted with Boston, paid Boston, and donated the services to the District.

On April 1, 2013, the OOR requested that appellant provide evidence regarding whether any third party had access to the withheld records. Appellant did so on April 9, 2013.

OnApril 12,2013, theOORissuedits final determination. It held that based upon the affidavits provided, while Boston’s services were donated to appellant and Boston acted as an agent of the district, the affidavits did not address whether the William Penn Foundation had access to the withheld records. The affidavits showed only that the records were “never a specific topic of conversation or exchange.” Thus, because it was appellant’s burden to prove by a preponderance of the evidence each element of the claimed exemption, the OOR could not conclude that the withheld records were “internal” to appellant. Thus, the OOR granted appellee’s appeal.

Appellant filed its appeal from the decision of the OOR on May 13, 2013.

On August 30, 2013, the certified record was received from the OOR.

On October 7, 2013, appellant filed its brief, arguing that the OOR erred in its decision and that the internal, pre-decisional, deliberative exception applied per 65 P. S. § 67.708. Specifically, appellant argued that the affidavits it had provided were clear in stating that the information was not shared and that, even if the information had been shared with the Foundation, it was still internal to appellant — i.e., prepared by or on behalf of the agency. Appellant also argued that the “three prong test” employed by the OOR should not be employed by this court in its decision and is merely a guideline.

On November 1, 2013, appellee filed her brief, arguing that the records are not internal when shared with outsiders and that documents given to appellant by a third party such as the Boston Group, are not internal per the meaning of the statute, and that appellant had had ample opportunity to submit the evidence requested by the OOR, but had not.

This court heard oral argument on the merits of this case on March 18, 2014. Appellant argued that the documents were internal, predecisional, and deliberative, and that the affidavits submitted by appellant were sufficient to show that Boston had not shared the information with third parties. Notes of Testimony, hereinafter N. T., 3/18/14 at 5-8. Said affidavits stated that a) appellant remained the sole owner of the work product and materials prepared by Boston andb) that the Acting Superintendant of the School District stated that the list of schools recommended for closure “was never a specific topic of exchange between representatives of the William Penn Foundation, School District staff or consultants employed by BCG...” N. T. 3/18/14 at 8-9. Appellant chose not to supplement the administrative record. N. T. 3/18/14 at 10. Appellant argued the position that the documents remained predecisional until the administration took action upon them. N. T. 3/18/14 at 16. Additionally, appellant argued that because the William Penn Foundation had funded phase three of the work, that they were “in the group of the internal agency parties.” N. T. 3/18/14 at 19.

Appellee argued that the public agency asserting the exception has the burden of proving the applicability and that, in the instant case, it could not prove the documents were internal. N. T. 3/18/14 at 19-21. Namely, that appellant appeared to have shared the documents with the William Penn Foundation, a donor to appellant, but which had no contractual or agency ties. N. T. 3/18/14 at 21-22. Appellee argued that Boston had no formal relationship with appellant but was an outside volunteer, and that the affidavit provided by Knudsen stated only that he could not recall the documents being shared. N. T. 3/18/14 at 31-32. Boston was a contractor during phase one, running from February 21, 2012, through March 29, 2012. N. T. 3/18/14 at 35. Beginning March 30,2012, Boston was not a contractor. N. T. 3/18/14 at 36.

On June 30, 2014, following a thorough review of the record, briefs, and arguments of counsel, this court entered an order denying appellant’s appeal.

On July 30, 2014, appellant filed a timely notice of appeal to the Commonwealth Court.

On July 30, 2014, this court issued its order pursuant to Pa. R.A.P. 1925(b), directing appellant to file a concise statement of matters complained of on appeal within twenty-one (21) days.

On August 18, 2014, appellant filed its statement of errors complained of on appeal, arguing that this court erred in not providing findings of fact and conclusions of law; that this court erred in not concluding that appellant had met its proof that the document had been kept internal; that this court erred in not reversing the final determination that appellant had not met its burden of proof.

DISCUSSION

On appeal, appellant avers that this court erred in denying its appeal from the decision of the OOR and concluding that it had not met its burden of proof, and that this court erred because its order denying the appeal did not contain findings of fact and conclusions of law.

The RTKL is the statute providing for access to public records in Pennsylvania. Bowling v. Office of Open Records, 75 A.3d 453, 455 (Pa. 2013). This court’s scope of review as a Chapter 13 Court, dealing with appeals from the OOR, is de novo and shall contain findings of fact and conclusions of law based upon the evidence as a whole, clearly and concisely explaining the rationale of the decision. Com., Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503, 507 (Pa. Commw. Ct. 2012) appeal granted, 74 A.3d 1027 (Pa. 2013); 65 P.S. § 67.1301(a). The court may substitute its own findings of fact for that of the agency. Gaming Control Board, 48 A.3d at 507.

I. BURDEN

The RTKL requires agencies to disclose public records and provides that “a record in the possession of a Commonwealth agency... shall be presumed to be a public record.” 65 P. S. § 67.305(a). Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record... and whether the agency has possession ... of the identified record.” 65 P. S. § 67.901. The burden of proving a record of the Commonwealth or local agency is exempt from public access is on that agency, by a preponderance of the evidence standard. 65 P. S. § 67.708(a)(1). Elowever, there are exceptions to this rule and a record reflecting the internal, pre-decisional deliberations of an agency, its members, employees, or officials is exempt from access by a requester. 65 P. S. § 67.708(10)(i)(A). To determine whether a requested record is exempt, the OOR applies the following test: that the deliberations are “internal” to the agency; that they are predecisional, i.e. before a decision on an action; and that the contents are deliberative in character, or pertaining to a proposed action. Office of Governor v. Scolforo, 65 A.3d 1095, 1101-02 (Pa. Commw. Ct. 2013).

The question before the court is whether the records meet each of the three criteria that make up the exception. Neither party disputes that the records are pre-decisional or deliberative. Thus, the remaining question is whether the documents were internal to the district. As noted above, to fit into the exception provided by the law, records must also be “internal” to a governmental agency. Kaplin v. Lower Merlon Twp., 19 A.3d 1209, 1214 (Pa. Cmwlth. 2011). Even records shared between separate government agencies are still considered internal per the law. Id. However, internal deliberations are no longer “internal” for the purposes of the exemption once they have been shared beyond the agency. Philadelphia Pub. Sch. Notebook v. Sch. Dist. of Philadelphia, 49 A.3d 445, 453 (Pa. Commw. Ct. 2012) (records shared in School Reform Commission meeting not internal).

In the case before the court, appellant avers that the affidavits provided prove that the requested records are internal and were not shared with the William Penn Group. Affidavits may be submitted as evidence to supplement the record, but where an affidavit is not detailed and conclusory, that affidavit alone is insufficient to prove that requested information is exempt from disclosure. Office of Governor v. Scoiforo, 65 A.3d 1095, 1103-04 (Pa. Commw. Ct. 2013). The affidavit must be specific enough to allow the OOR or court to ascertain how disclosure of the entries would reflect the internal deliberations on those subjects. Id.

In submissions provided to the OOR on April 9, 2013, affidavits stated that “to the best of [the] knowledge” of the affiants, the list of schools identified by Boston as top candidates for closure as well as the criteria for choosing schools recommended for clothing was “never a specific topic of conversation or exchange between representatives of the William Penn Foundation and ... school District Staff or consultants employed by BCG.” See affidavit of Thomas Knudsen, Paragraph 15. Additional affidavits provided by the general counsel of the district state in pertinent part that, “The services of the consultant were donated to [appellant] by the William Penn Foundation and other grantors... at all times relevant hereto, [appellant] remained the sole owner of ail work product and materials generated and prepared by the consultant and for the benefit of [appellant].” Nothing in the affidavits submitted specifically states that the records were private to appellant or that the William Penn Foundation and employees thereof had no access to the records. They state only that as far as Thomas Knudsen knew, the records were not a specific topic, and that appellant remained the owner of the product and materials generated.

At oral argument, appellant chose not to supplement the record. Thus, nothing in the evidence submitted by appellant shows, by a preponderance of that evidence, that such records were not shared with the William Penn Foundation, and as a result the records are not “internal” per 65 P. S. § 67.708. Appellant has not, therefore, met its burden.

II. CONCLUSION

Accordingly, for all of the reasons stated above, this court’s decision should be affirmed.


source: Caselaw Access Project

author: JOHNSON, J.,

license: Public Domain

text:
    Rivera v. Scaffidi

      C.P. of Lehigh County,
    No. 012-C-4597

      Kevin Kelleher, for plaintiff.

      Candy Barr Heimbach and Michelle Wilson, for defendants.
    Oct. 10, 2014
   JOHNSON, J.,

I. Introduction

Given the unusual procedural posture of the defendants’ current request for summary judgment, a brief review of the relevant procedural history is warranted. By order dated March 4, 2013, this court established a deadline of December 5, 2014 for the end of discovery and a deadline of February 5,2014 for the production of plaintiff’s expert reports. After the failure of plaintiff to produce an expert report supportive of her claims, the defendants filed a motion for summary judgment on March 12, 2014. In response to the defendants’ motion for summary judgment, the plaintiff requested an additional period of time to produce an expert report to substantiate her claims. By order dated April 23, 2014, this court allowed the plaintiff additional time and required plaintiff to submit answers to the motion for summary judgment, with the plaintiff’s expert report attached, by May 15, 2014.

Plaintiff ultimately served an expert report and curriculum vitae of Bruce M. Kaufman, M.D. upon counsel for defendants on May 14,2014, but did not file any answer or expert report with the court as required by this court’s April 23, 2014 order. On that basis, on May 30, 2014 this court entered an order granting the defendants’ motion for summary judgment. As a result, the plaintiff filed a motion for reconsideration on June 2, 2014. In response, on June 24, 2014, the defendants filed the response of defendants, John J. Scaffidi, Jr., M.D. and Total Womens Health Care, Inc., To plaintiff’s motion for reconsideration which raises new matter asserting that the expert report of Bruce M. Kaufmann, M.D. is insufficient to support the claims in this case and seek summary judgment on that basis. The defendants also waived their previous argument seeking summary judgment on the basis that the plaintiff failed to submit an expert report by the deadline. Given the defendants’ waiver and the fact that the plaintiff served the defendants with the expert report on May 14, 2014, this court vacated its May 30, 2014 order granting summary judgment. As a result of this procedural history, this court scheduled and heard argument on the issues surrounding the sufficiency of the plaintiff’s expert report on August 22, 2014.

II. Analysis

Presently, four questions raised in the new matter contained the response of defendants, John J. Scaffidi, Jr., M.D. and Total Womens Health Care, Inc., To plaintiff’s motion for reconsideration filed on June 24, 2014, remain for this court’s decision:

1. Whether summary judgment should be granted because the fair scope of the plaintiff’s expert report does not support the claims for negligence;
2. Whether summary judgment should be granted because the theory of negligence for an allegedly improper technique or position is at variance with the pleadings;
3. Whether summary judgment should be granted because the fair scope of the plaintiff’s expert report does not support the claim for lack of informed consent; and
4. Whether summary judgment should be granted because the plaintiff’s expert report should be barred as improper evidence.

Pennsylvania Rule of Civil Procedure 1035.2(2) states that summary judgment shall be entered, “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Furthermore, all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment. Penn Center House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989). It is with this standard in mind that this court reviews the previously listed four questions.

1. Whether summary judgment should be granted because the fair scope of the plaintiff’s expert report does not support the claims for negligence:

“[T]o prevail in a medical malpractice action, a plaintiff must ‘establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm.’” Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa. Super. 2007) (quoting Toogood v. Owen J. Rogal, DDS, PC., 824 A.2d 1140, 1145 (Pa. 2003) (alterations in original). “Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons [,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.” Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005) (quoting Toogood, 824 A.2d at 1145). Expert testimony is required because a jury usually lacks the knowledge required to determine factual issues of medical causation, the degree of skill, knowledge and experience required of a physician, and a breach of a standard of care. Id. at 566-67.

Furthermore, Pennsylvania Rule of Civil Procedure 4003.5(c) provides that, where an expert opinion has been developed through discovery, the expert’s direct testimony at trial “may not be inconsistent or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his- deposition, answer to an interrogatory, separate report or supplement thereto.” (Emphasis added). According to the 1978 explanatory comment, the fair scope requirement contained in Pa.R.C.P. 4003.5 is intended to, “...prevent incomplete or ‘fudging’ of reports which would fail to reveal fully the facts and opinions of the expert or his grounds therefor[e]...” Pa.R.C.P. 4003.5. Essentially, the fair scope analysis turns on unfair surprise to the opposing party. See Expressway v. Bucks County Bd. of Assess., 921 A.2d 70, 78-79 (Pa. Commw. 2007). In a medical malpractice action, the report must sufficiently apprise the opposing party of the expert’s theory such that the opponent can prepare a meaningful response, including a rebuttal witness. Brodowski v. Ryave, 885 A.2d 1045, 1065-66 (Pa. Super. 2005) (en banc). However, an expert is entitled to expect that the report will be read by qualified experts on the other side and is not required “to give a basic primer on medicine.” Schaaf v. Kaufman, 850 A.2d 655, 666-67 (Pa. Super. 2004).

In this case, the first issue is whether the fair scope of the Kaufmann report establishes the prima facie elements of a medical malpractice action. If the report fails to establish the prima facie elements, then the fair scope rule will bar farther testimony at trial and the plaintiff will be unable to prove the elements of her claim. After careful scrutiny of the report and upon careful review of the arguments of the parties, three potential negligence theories come to light: (a) negligent documentation, (b) negligence in the decision to perform the November 2, 2010 diagnostic laparoscopy, and (c) negligent selection of techniques used to perform the November 2, 2010 diagnostic laparoscopy.

a. Negligent documentation

The Kaufmann report states, “There is confusing reporting of the method of securing the pneumoperitoneum.... There is not mention of the position of the patient during the effort at pneumoperitoneum, whether supine or whether head down position was used. This can be signficiant.” However, and without regard to the lack of a cause of action for negligent documentation in Pennsylvania, the Kaufmann report no where else states a standard for this type of documentation and never describes how this “confusing” documentation caused any of the harm suffered by the plaintiff. The previously quoted two sentences represent the entire discussion of documentation made in the Kaufmann report. Because the report fails to set out the prima facie elements, this court finds that any negligence theory centered on medical documentation must be barred by the fair scope rule.

b. Negligent decision to perform the November 2,2010 diagnostic laparoscopy

Next, the Kaufmann report, on its last page, mentions, “The decision of whether to perform the surgery and the techniques used led to the death of Mrs. Santiago.” The remainder of the report concerns itself with criticizing the technique selected to perform the diagnostic laparoscopy, but no where else in the report does Kaufmann criticize the decision to perform the diagnostic laparoscopy in the first instance. This type of conclusory, incomplete statement in an expert report does not fairly apprise the opposing side of the expert’s opinions and basis for those opinions. Because the Kaufmann report never sets forth any type of negligence theory in support of the conclusory statement, which criticizes the decision to perform the diagnostic laparoscopy at all, this court finds that any negligence theory centered on that theory must be barred by the fair scope rule.

c. Negligent techniques used to perform the November 2, 2010 diagnostic laparoscopy

Lastly, the Kaufmann report criticizes the technique chosen to perform the November 2, 2010 diagnostic laparoscopy and suggests two alternative techniques, the “Hasson technique” and “Palmer’s Point.” It is worth noting that the standard of care in medical malpractice actions is, first and foremost, that which is reasonable under the circumstances. Collins v. Hand, 246 A.2d 398 (Pa. 1968). After reviewing the relevant medical history, the Kaufmann report explains, “The creation of a pneumoperitoneum along with the insertion of trochars can result in significant injuries. More than 50% of trochar related injuries to bowel occur on initial entry.” The report goes on to highlight that the presence of abdominal adhesions increase the risk to bowel injury. Additionally, the report cites two risk factors that increase the chances of abdominal adhesions, obesity and a previous laparotomy or midline incision. Reading these statements in context with the medical history initially reviewed by the Kaufmann report, seems to indicate that both of these risk factors were present in this case.

Furthermore, the report describes two entry techniques, the “Hasson technique” and “Palmer’s Point,” which reduce the risk of injury to a patient with the potential for adhesions. Specifically, the report states:

The Hasson technique uses an umbilical incision, with careful dissection down to the entry into the peritoneal cavity under direct vision, with then placement of the trochar to secure pneumoperitoneum. Care is taken to insure that there is no bowel attached to the peritoneum prior to trochar introduction. The technique eliminates blind puncture with a needle or a trochar.
An alternative site for access to the abdominal cavity such as Palmer’s point needs to be strongly considered in those patients with suspected adhesions.... This site is recommended to reduce the risk of bowel injury in patients with prior abdominal surgery.

In summation, the report states:

With her multiple medical risk factors, every care must be made to avoid surgical complications that could be prevented by prudence in planning. The decision of whether to perform the surgery and the techniques used led to the death of Mrs. Santiago.
Based upon my education, training, and experience, my professional opinion is that Dr. Scaffidi’s treatment of the patient did not meet the accepted standard of medical care. With a reasonable degree of medical certainty, the patient suffered the previously explained hospital course and death as a direct and proximate result of Dr. Scaffidi’s professional negligence.

Reading the Kaufmann report as a whole, this court finds that the fair scope of the report covers the prima facie elements and that the report fairly apprises the defense of Kaufmann’s opinion that, given the circumstances, Dr. Scaffidi’s selection of technique for the November 2,2010 diagnostic laparoscopy breached the standard of care and that breach caused the death of Mrs. Santiago.

Additionally, and in response to the argument that Kaufmann’s statement of certainty, “Based upon my education, training, and experience, my professional opinion is that Dr. Scaffidi’s treatment did not meet the accepted standard of medical care,” does not rise to the required standard, this court does not find the statement so inadequate as to bar Kaufmann’s testimony at trial. While an expert witness cannot express an opinion unless the witness can testify to a reasonable degree of medical certainty, the witness is not required to recite “reasonable degree of medical certainty” nor any other talismanic language. See Vicari v. Spiegel, 936 A.2d 503, 510 (Pa. 2007), aff’d on other grounds 989 A.2d 1277 (Pa. 2010) (“an expert’s opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, ‘reasonable degree of medical certainty’”).

For the foregoing reasons, the plaintiff will be permitted to proceed at trial on the theory of a negligent technique alone and all other theories of negligence are barred by the “fair scope” rule.

2. Whether summary judgment should be granted because the theory of negligence for an allegedly improper technique or position is at variance with the pleadings:

Next, the defendants argue that the theory of negligence contained in the Kaufmann report is at variance with the pleadings. The case of Reynolds v. Thomas Jefferson University Hospital, 676 A.2d 1205 (Pa. Super. 1996), is instructive. Reynolds states that a variance exists where, contrary to the fundamental principle of good pleading and practice, the proof fails to materially correspond to the allegations in the complaint. Id. at 1209. If a variance is found between proof and allegation, then the party will be precluded from introducing the evidence that is inconsistent with the allegations made by that party. Id.

However, the Reynolds court also notes:

The modern rules of pleading and practice are relatively liberal... Consequently, the impact of variance may be diminished by the preference for a liberal if not informal evaluation of pleadings emphasizing the determination of cases based upon their merits rather than based on mere technicalities, which policy, for example, may allow a party to cure a variance by offering, during or after trial, to amend the pleadings to conform to the proof.

In the same vein, the Reynolds court cites, Laursen v. General Hospital of Monroe County, 431 A.2d 237, 239-40 (Pa. 1981), for the proposition that, “amendments of pleadings...should be liberally allowed to secure a determination of cases on their merits, provided that the granting of the amendment would not introduce a new cause of action.” Id. A new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint...” Id.

In the present case, Paragraph 25(A) of the plaintiff’s amended complaint states, “The decedent’s death was proximately caused by the carelessness and negligence of the defendant, John R. Scaffidi, M.D. in one or more of the following ways: (A) In that he perforated the bowel during the course of performing the laparotomy...” Upon review, this court does not find the theory contained in the Kaufmann report that Dr. Scaffidi punctured the bowel due to an improper technique at variance with the previously quoted pleading. Rather, the Kaufmann report sets out to prove exactly what the amended complaint alleges; Dr. Scaffidi’s negligence during the performance of the laparotomy caused the bowel puncture, which ultimately led to the death of Mrs. Santiago. The Kaufmann report merely amplifies the already existing theory of negligence by specifically identifying why the performance was negligent.

Additionally, this court finds that allowing Kaufmann to testify regarding the theory of a negligent technique will allow the case to be decided on its merits and will not unfairly prejudice the defendants. Read as a whole, the amended complaint puts the defendants on notice that they will need to defend against the allegation that Dr. Scaffidi performed the laparoscopy negligently. The fact that the Kaufmann report proceeds by criticizing the technique used to perform the laparoscopy should not have surprised the defendants. Furthermore, the defendants do not cite any specific prejudice other than their belief that the Kaufmann report introduces a new cause of action beyond the statute of limitations. In contrast to the situation in Reynolds where the court found that the amended allegation would have required an expert in a wholly new field, the defendants in this case do not cite any similar prejudice. See Reynolds at 1213. For the foregoing reasons, this court finds that the Kaufmann report is not at variance with the pleadings.

3. Whether summary judgment should be granted because the fair scope of the plaintiff’s expert report does not support the claim for lack of informed consent:

During oral argument held August 22, 2014, counsel for plaintiff agreed to withdraw the claim for informed consent. Therefore, summary judgment on the claim for informed consent is denied as moot.

4. Whether summary judgment should be granted because the plaintiff’s expert report should be barred as improper evidence:

Finally, the defendants argue that the entire Kaufmann report should be barred as improper evidence, because the plaintiff provided Kaufmann with a transcript of an illegally recorded conversation between the defendant, Scaffidi, and the plaintiff’s family. The defendants further note that the basis of the statement, contained in the Kaufmann report, “...and in conversations with the family, there was a description of the use of a Veress needle,” could only have been obtained from the illegal recording. The defendants cite the court to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701 et seq., to establish the illegality of the recording. Regardless, the defendants have not indicated how the mere knowledge of the recorded conversation irreparably taints the report and testimony of Kaufmann. Furthermore, the potentially illegally obtained information does not seriously impact the substance of the Kaufmann report. Because of the limited impact of the illegally obtained information and the great potential for prejudice to the plaintiff were the court to bar the entire report, this court declines to grant summary judgment on that basis. Any issues regarding the admissibility of illegally obtained information are deferred to trial.

III. Conclusion

Pursuant to the reasons and analysis contained in the above opinion, summary judgment is granted in part and denied in part as follows:

1. The portion of the motion seeking summary judgment on the basis that the fair scope of the plaintiff’s expert report does not support the claims for negligence is granted in part and denied in part as follows:
a. The portion seeking summary judgment as to all claims of negligence other than negligence for an improper technique or position, including the claim that the decision to perform the surgery was negligent, is granted and those claims are dismissed with prejudice;
b. The portion seeking summary judgment as to the claim alleging negligence for an improper technique or position is denied and the plaintiff will be permitted to proceed on this theory alone;
2. The portion of the motion seeking summary judgment on the basis that the theory of negligence for an allegedly improper technique or position is at variance with the pleadings is denied;
3. It appearing that the plaintiff has withdrawn her claim for lack of informed consent, the portion of the motion seeking summary judgment on the basis that •the fair scope of the plaintiff’s expert report does not support the claim for lack of informed consent is denied as moot; and
4. The portion of the motion seeking summary judgment on the basis that the plaintiff’s expert report should be barred as improper evidence is denied.

ORDER

And now, this 10th day of October, 2014, upon consideration of the motion for summary judgment of defendants, filed on March 12, 2014, the new matter contained in the response of defendants, John J. Scaffidi, Jr., M.D. and Total Womens Health Care, Inc., to plaintiff’s motion for reconsideration, the plaintiff’s responses thereto, the briefs of the parties, and argument held August 22, 2014;

It is hereby ordered, for the reasons set forth in the accompanying opinion, that summary judgment is granted in part and denied in part as follows:

1. The portion of the motion seeking summary judgment on the basis that the fair scope of the plaintiff’s expert report does not support the claims for negligence is granted in part and denied in part as follows:
a. The portion seeking summary judgment as to all claims of negligence other than negligence for an improper technique or position, including the claim that the decision to perform the surgery was negligent, is granted and those claims are dismissed with prejudice;
b. The portion seeking summary judgment as to the claim alleging negligence for an improper technique or position is denied and the plaintiff will be permitted to proceed on this theory alone;
2. The portion of the motion seeking summary judgment on the basis that the theory of negligence for an allegedly improper technique or position is at variance with the pleadings is denied;
3. It appearing that the plaintiff has withdrawn her claim for lack of informed consent, the portion of the motion seeking summary judgment on the basis that the fair scope of the plaintiff’s expert report does not support the claim for lack of informed consent is denied as moot; and
4. The portion of the motion seeking summary judgment on the basis that the plaintiff’s expert report should be barred as improper evidence is denied.

      . Plaintiff orally agreed to withdraw the claim for lack of informed consent at argument held August 22,2014.

      . Plaintiff orally agreed to withdraw the claim for lack of informed consent at argument held August 22, 2014.


author: COX, J.,

text:
    Heichel v. Smith Paving and Construction Co.

      C.P. of Lawrence County,
    No. 10057 of 2010

      Douglas J. Olcott, for plaintiffs.

      Rhonda J. Sudina, for defendant Smith Paying and Construction.

      Jennifer M Swistak, for defendant Grubb & Ellis Management Services, Inc.
    Oct. 15, 2014
   COX, J.,

Before the court for disposition are motions for summary judgment filed on behalf of the defendants Smith Paving And Construction Company, a/k/a Smith Paving & Construction Company (hereinafter “Smith Paving”) and Grubb & Ellis Management Services, Inc. (hereinafter “Grubb & Ellis”), which argue that the plaintiffs failed to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall and they are unable to demonstrate that the snow or ice accumulated in ridges or elevations of such size to unreasonably obstruct travel and created a dangerous condition. Defendant Grubb & Ellis also asserts that it is entitled to summary judgment on its crossclaim as it is a third party beneficiary of the contract between defendant Smith Paving and Liberty Mutual Insurance, Co. (hereinafter “Liberty Mutual”) in which defendant Smith Paving agreed to indemnify defendant Grubb & Ellis for liabilities arising out of defendant Smith Paving’s performance of snow removal on the premises in question.

Defendant Grubb & Ellis is the property manager for the Liberty Mutual Building which is located at 2501 Wilmington Road, New Castle, Lawrence County, Pennsylvania. Liberty Mutual entered into a contract with defendant Smith Paving for snow removal on the Liberty Mutual premises for the 2007 through 2008 winter. Defendant Smith Paving’s main responsibilities pursuant to the contract were to remove snow and ice from the parking lot and walkway area.

OnFebruary 12,2008, defendant Smith Paving provided continuous snow removal services to the Liberty Mutual premises commencing at 4:00 a.m. to midnight. There was a total charge for 20 hours of continuous service on that date for an amount of $11,800. The service included 20 hours of plow truck service, 80 tons of salt, 20 hours of backhoe service, 5 hours of plow truck service, 10 hours of labor on the sidewalks and 60 bags of calcium. On that date, the New Castle area received six to ten inches of snow that changed to ice and freezing rain: There were no complaints made to defendant Smith Paving or defendant Grubb & Ellis that there was ice or snow on the Liberty Mutual parking lot or sidewalks. On that date, Patricia Heichel was leaving work and traversing the parking lot on the Liberty Mutual premises on her way to her vehicle when she fell. Mrs. Heichel failed to explain whether the parking lot, including the immediate area of her fall, was covered with snow or ice nor could she recall many details from that incident, including the type of shoes she was wearing or the time when the fall occurred. She also does not recall the cause of her fall. Lori Thorman, Mrs. Heichel’s co-worker, responded to the report that Mrs. Heichel fell. Ms. Thorman testified that she had to walk “very cautiously and it was slippery” in the general area where the fall occurred. She recounted that she had to hold onto the security guard and was taking small steps when walking on that area. Ms. Thorman explained that the parking lot was slippery but did not describe whether there was ice or snow in that area. It must be noted that Ms. Thorman was walking on the parking lot after Mrs. Heichel fell. There is no other testimony stating that the parking lot or walkways were covered with snow and ice at the time of Mrs. Heichel’s fall. The plaintiffs have presented photographs derived from Liberty Mutual’s surveillance cameras that depicted the condition of the parking lot and the area where Mrs. Heichel fell. However, those photographs are taken from a distance that makes it difficult to decipher whether the parking lot was covered with ice and it appears that the parking lot was wet and there was no snow or ice in those areas.

As a result of that incident, the plaintiffs filed suit on January 13, 2010, asserting claims of negligence against defendant Smith Paving and defendant Grubb & Ellis. Gerald Heichel asserted a claim for loss of consortium against the defendants. On March 29, 2010, defendant Smith Paving filed an answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, in which it contends that it is entitled to contribution or indemnity from defendant Grubb & Ellis, if defendant Smith Paving is found to be liable in this case. On April 29, 2010, defendant Grubb & Ellis filed its answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, asserting it is a third party beneficiary of the contract between Liberty Mutual and defendant Smith Paving and it is entitled to contribution or indemnity from defendant Smith Paving if it is found to be liable in the current matter. On May 10, 2010, defendant Smith Paving filed a reply to defendant Grubb & Ellis’ crossclaim, and defendant Grubb & Ellis filed its reply to defendant Smith Paving’s crossclaim. On March 17, 2014, defendant Smith Paving filed its motion for summary judgment. Defendant Grubb & Ellis also filed a motion for summary judgment on March 26, 2014. Both motions for summary judgment argue that the plaintiffs failed to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall and they are unable to demonstrate that the snow or ice accumulated in ridges or elevations of such size to unreasonably obstruct travel and created a dangerous condition. Defendant Grubb & Ellis also asserts that it is entitled to summary judgment on its crossclaim as it is a third party beneficiary of the contract between defendant Smith Paving and Liberty Mutual in which defendant Smith Paving agreed to indemnify defendant Grubb & Ellis for liabilities arising out of defendant Smith Paving’s performance of snow removal on the premises in question.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 164 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000).

The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to j udgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996). The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspapers, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view 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. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H & R Block, 761 A.2d 1115 (Pa. Super. 2001). Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

“[T]he mere happening of an accident or an injury does not establish negligence nor raise an inference or a presumption of negligence nor make out a prima facie case of negligence.” Amon v. Shemaka, 419 Pa. 314, 317, 214 A.2d 238, 240 (1965) (citing Steiner v. Pittsburgh Railways, Co., 415 Pa. 549, 204 A.2d 254 (1964). “Although a jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but must have evidence upon which logically its conclusion may be based, circumstantial evidence may be adequate to prove a plaintiff’s case.” Deaver v. Miller, 260 Pa. Super. 173, 177-178, 393 A.2d 1209, 1211 (1978). In order to establish a claim for negligence, a plaintiff must prove the following elements: “(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Reeves v. Middletown Athletic Ass ’n, 866 A.2d 1115, 1126 (Pa. Super. 2004) (citing Burman v. Golay & Co., Inc., 420 Pa. Super. 209, 616 A.2d 657 (1992)). Under Pennsylvania law, a plaintiff must establish that the defendant’s action was a substantial factor in bringing about the harm incurred. Mahon v. W.C.A.B. (Expert Window Cleaning and State Workers’ Insurance Fund), 835 A.2d 420, 428 (Pa. Cmwlth. 2003) (citing Smith v. Philadelphia Transportation Co., 202 Pa. Super. 278, 195 A.2d 168, 170 (1963)). It is insufficient to prove the mere occurrence of an injury as the plaintiff must prove a causal connection between the defendant’s conduct and the injury. MIIX Insurance Co. v. Epstein, 937 A.2d 469, 474 (Pa. Super. 2007) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (1978)). It is important to note that determining causation is an issue for the jury to decide, unless the evidence is such that reasonable people cannot disagree. Kirschner v. K & L Gates LLP, 46 A.3d 737, 754 (Pa. Super. 2012) (citing Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451, 455(1987)).

In Meyer v. Brewer, 259 Pa. Super. 95, 393 A.2d 733 (1978), the court addressed whether the trial court, was correct in granting a compulsory non-suit against the appellant for lack of evidence concerning a slip and fall caused by icy conditions of sidewalks providing access to a pizza shop. The appellant filed suit because he was injured after falling on an icy sidewalk in front of the appellee’s pizza shop. The appellant also joined the Borough of New Brighton and the owner of the building that housed the pizza shop. He claimed the appellees were liable for his injuries due to an accumulation of thick, lumpy ice that occurred on the sidewalks providing access to the pizza shop. At trial, the appellant presented his testimony and the testimony of another individual concerning the condition of the sidewalk. He then rested and the appellees moved for a compulsory non-suit. The appellant requested to reopen his case, which was denied by the trial court. In addition, the trial court granted the compulsory non-suit. The appellant then moved to set aside the compulsory non-suit, which was denied by the court en banc. He then filed an appeal with the Superior Court of Pennsylvania.

The Meyer Court noted that the appellant testified that the sidewalk in front of the pizza shop was clear, but, the other portions of the sidewalk were covered with thick, lumpy ice. He also testified that the ice was in patches. The appellant stated that he slipped and fell on an icy portion of the sidewalk while walking to his vehicle. The appellant’s witness stated that she found the appellant on the ground lying by a parking meter and the condition of the sidewalk underneath the appellant was icy and slippery. She also explained that the only portion of the sidewalk that was cleared of ice was in front of the pizza shop. The Meyer Court stated, “To grant a compulsory non-suit in a negligence case, the evidence must be so conclusive as to exclude the reasonable probability of inference otherwise.” Meyer, 259 Pa. Super, at 102, 393 A.2d at 737. The court then reasoned that the testimony presented at trial created a reasonable inference that the appellant’s fall was caused by lumpy, ridged ice as the appellant testified that he slipped on the icy portion of the sidewalk. Id. The Meyer Court further stated, “This clearly creates the inference that he slipped because of the ridged ice. In addition, the appellant’s witness testified that when she helped appellant from the ground, the ice around him was rough.” Id. Therefore, the court reversed the trial court by ruling that the testimony was sufficient to require its submission to a jury. Id.

In the case sub judice, defendant Smith Paving provided 20 hours of continuous snow removal services for the Liberty Mutual premises on the date of February 12,2008, because the New Castle area received approximately six to ten inches of snow that changed to freezing rain. Mrs. Heichel, who is an employee of Liberty Mutual, was traversing the parking lot when she fell. She is unable to recall many details of the incident, including the condition of the parking lot, and does not know what caused her to fall. The plaintiffs have also presented the testimony of Lori Thorman, Mrs. HeichePs co-worker, who stated that she had to walk “very cautiously and it was slippery” in the general location where Mrs. Heichel fell. Ms. Thorman testified that the weather conditions just changed from snow to freezing rain and the parking lot was a sheet of ice. However, the plaintiffs have failed to provide any testimony concerning the conditions of the specific area where Mrs. Heichel fell. The plaintiffs provided the court with pictures captured on Liberty Mutual’s surveillance cameras in an attempt to demonstrate the condition of the parking lot, but no other testimony concerning the condition of the parking lot or the walkway. Those pictures, which appear to demonstrate that the snow and ice were properly removed from the Liberty Mutual premises, are taken from a distance and are difficult to decipher.

The plaintiffs also presented the report of John A. Allin, who they held to be an expert in the field of snow removal. Mr. Allin stated that defendant Smith Paving’s lead engineer at the Liberty Mutual premises, John Ruffley, was unaware of the endothermic properties of rock salt and the exothermic properties of calcium chloride, and he did not know the proper use and rate of application of those products. Mr. Allin opined that the parking lot and walkways should have been inspected more regularly than they were on the date in question as there were inclement weather conditions and caution signs should have been placed on those areas to warn of the slippery conditions. He also opined that defendant Smith Paving failed to meet the generally accepted practices “with regards to the proper utilization of appropriate deicing material on the walkway areas resulting in the treacherous conditions which lead to the unfortunate circumstances which caused Ms. Patricia Heichel to slip, fall and be injured”.

The plaintiffs have failed to present the court with adequate evidence to demonstrate that Mrs. Heichel’s fall was caused by icy conditions on the Liberty Mutual premises. The only testimony that indicates that the parking lot or walkway was icy was provided by Ms. Thorman, who stated that she had to hold onto the security guard while walking toward Mrs. Heichel because it was slippery. She further stated that the entire parking lot was a sheet of ice due to a sudden change in the weather conditions, but she failed to explain the condition of the location where Mrs. Heichel fell. It is important to note that Ms. Thorman’s testimony is in regards to the general slippery conditions caused by the inclement weather and does not relay the conditions of the specific location where Mrs. Heichei fell. Ms. Thorman went to the parking lot after Mrs. Heichel had fallen, so she is unable to speak to the conditions of the parking lot at the time of the fall. Further, the defendants cannot be responsible for a sudden change in the weather when defendant Smith Paving was already performing constant snow removal services. Moreover, Mrs. Heichel cannot recall many details of the incident, including the cause of her fall or the condition of the parking lot and walkway. Unlike Meyer, where the appellant and his witness explained the exact condition of the sidewalk, including that the area in front of the pizza shop was clear and the remaining sidewalk was covered with patches of thick, lumpy ice. That testimony allows for the reasonable inference that the icy condition of the sidewalk caused the appellant’s fall. In the current matter, there is no testimony concerning the condition of the walkway and parking lot in the area where Mrs. Heichel fell to give rise to a reasonable inference that the icy condition of the Liberty Mutual premises was due to any negligence by or improper procedure utilized by defendant Smith Paving which resulted in Mrs. Heichel’s fall. In addition, there is no testimony that ice or snow accumulated in thick, lumpy patches as was the case in Meyer. The plaintiffs also assert that the expert report of Mr. Allin provides circumstantial evidence that the portion of the Liberty Mutual parking lot where Mrs. Heichel fell was slippery due to the accumulation of snow or ice. His report appears to be based upon the assumption that the parking lot was slippeiy as evidenced by Mrs. Heichel’s fall. He also opines that Mr. Ruffley did not understand the properties of the rock salt and calcium chloride being used in the snow removal at Liberty Mutual and it caused defendant Smith Paving to utilize those chemicals incorrectly. However, there is no evidence concerning the slippery condition of the location where Mrs. Heichel fell beyond testimony of generally slippery conditions or indications that there was an accumulation of snow in the New Castle area on the day in question.

The plaintiffs also cite to this court’s opinion in Kendall v. Perkins Restaurants, Inc., et al., 10010 of 2005, C.R. (Pa. Com. Pl. Lawrence 2005), in which the plaintiff was injured when she slipped on a patch of black ice in a parking lot. In that case, the owner of a shopping center contracted with a snow removal company to provide snow removal services to a parking lot. The snow removal company spread approximately four to five tons of salt in the parking lot at 6:00 a.m. and returned later to inspect the condition of the parking lot. It was noted that there were still patches of ice on the parking lot, but the parking lot appeared to be clear and wet. The plaintiff then attempted to exit his vehicle and walked towards a restaurant when he slipped on a patch of black ice and fell. He and his wife both characterized the area where the plaintiff fell as containing a patch of smooth ice. The plaintiff filed suit averring negligent snow and ice removal by the defendant. The plaintiff also provided expert testimony stating that improper salting of the parking lot and clearing of ice led to an unnatural formation of ice.

In Kendall, this court noted that ice caused by improper snow removal or salting procedures are unnatural accumulations of ice and is not grounds for the imposition of the hills and ridges doctrine, Id. (citing Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523 (Pa. Super. 2006); Liggett v. Pennsylvania’s Northern Lights Shoppers City Inc., 75 Pa. D & C 4th 322, 327-328 (2005)). There was evidence and expert testimony that the patch of ice described by the plaintiff and his wife in Kendall was caused by improper snow abatement procedures and salting. Id. Hence, this court determined that the hills and ridges doctrine did not apply in that case and there was a question of material fact as to whether there was an unnatural accumulation of ice and the defendants were not entitled to summary judgment based upon the hills and ridges doctrine.

However, this matter is distinguishable from Kendall as the plaintiff in that case presented testimony from himself and his wife that he slipped on an isolated patch of ice that they described as smooth. In addition, the plaintiff provided expert testimony that the defendant utilized improper snow and ice removal procedures that caused the patch of ice. The defendants also failed to constantly inspect and remove the ice throughout the day in Kendall as the only snow removal activities on that date occurred at 6:00 a.m., even though there were reports that there were still patches of ice located in that parking lot. In the current case, the plaintiff has failed to provide any of that evidence, except for an expert report. There is no testimony regarding whether Mrs. Heichel fell on a patch of ice. In fact, the testimony demonstrates that there were generally slippery conditions in the Liberty Mutual parking lot caused by a sudden change in the weather from snow to freezing rain. Furthermore, defendant Smith Paving performed constant snow removal services to the Liberty Mutual parking lot for a 20 hour period, which is distinguishable from the one instance of snow removal and salting in Kendall. Therefore, the plaintiffs have failed to establish a prima facie case for negligence as they are unable to establish the cause of Mrs. Heichel’s fall.

For the reasons set forth in this opinion, the court grants the defendants’ motions for summary judgment based upon a failure to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall. Thus, it is unnecessary for the court to address the remaining issues raised in the defendants’ motions for summary judgment.

ORDER OF COURT

Now this 15th day of October, 2014, this case being before the' court on August 25, 2014, for oral argument on the motions for summary judgment filed by the defendant, Smith Paving and Construction Company, a/k/a Smith Paving & Construction Company, and Grubb & Ellis Management Services, Inc., with all parties appearing through their counsel, the plaintiffs, Patricia Heichel and Gerald Heichel, represented through counsel, Douglas J. Olcott, Esquire, and the defendant, Smith Paving and Construction Company, a/k/a Smith Paving & Construction Company, represented through counsel, Rhonda J. Sudina, Esquire, and the defendant, Grubb & Ellis Management Services, Inc., represented through counsel, Jennifer M. Swistak, Esquire, and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order, and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motions for summary judgment filed by the defendants, Smith Paving and Construction Company a/k/a Smith Paving & Construction Company and Grubb & Ellis Management Services, Inc., regarding the complaint of the plaintiffs are hereby granted.

2. All claims against both defendants made by the plaintiffs are hereby dismissed with prejudice.

3. The complaint filed by the plaintiffs is hereby dismissed with prejudice.

4. The court will not reach any further motions for summary judgment filed between defendants as the complaint filed by the plaintiff has been dismissed.

5. The prothonotary shall serve a copy of this order of court upon counsel of record, Douglas J. Olcott, Esquire, Rhonda J. Sudina, Esquire, and Jennifer M. Swistak, Esquire.


author: FORD, J.,

text:
    Commonwealth v. Savage

      C.P. of Lehigh County,
    No. CP-39-CR-2092-2014

      Richard Director, for Commonwealth.

      Carol A. Marciano, for defendant.
    Oct. 29, 2014
   FORD, J.,

The charges filed against the defendant, Oliver Franklin Savage, in the criminal information are: Count 1, homicide by vehicle, 75 Pa.C.S. § 3732(a), Count 2, involuntary manslaughter, 18 Pa.C.S. § 2504(a), Count 3, recklessly endangering another person, 18 Pa.C.S. § 2705, Count 4, recklessly endangering another person, 18 Pa.C.S. § 2705, Count 5, careless driving, 75 Pa.C.S. § 3714(b), Count 6, driving at safe speed, 75 Pa.C.S. § 3361, Count 7, following too closely, 75 Pa.C.S. § 3310(a), and Count 8, reckless driving, 75 Pa.C.S. § 3736(a). All charges stem from a vehicular accident on February 10, 2014, in which James Knappenberger was killed.

On July 28,2014, defense counsel filed an omnibus pretrial motion which contains several sections. I conducted a hearing on the motion on September 4, 2014. At the hearing, defense counsel withdrew without prejudice Sections II and III of the motion, entitled respectively “motion to suppress information obtained from GPS” and “motion to suppress information obtained from warrantless inspection of defendant’s logbook, travel-related documents, medical card and prescription bottles.” In the final section of the motion, defense counsel asks that she be permitted to file additional motions and to modify motions already filed. She has not pursued this so I dismiss this last section of the motion with today’s order. At the September 4 hearing, the defense pursued two sections of the omnibus motion, namely, Section I, a petition to dismiss the felony and misdemeanor charges and Section IV, a petition to preclude the use of defendant’s statement to police because of the Commonwealth’s alleged inability to comply with the corpus delicti rule.

In an effort to establish a prima facie case, the Commonwealth presented the transcript of the testimony from the preliminary hearing (C-5), accident photos (C-l through C-4), a map of the accident location (C-6), and a diagram of the accident scene (C-7). The Commonwealth also presented the testimony of Sergeant Cory Reader of the Upper Macungie Township Police Department and the testimony of Sergeant William Easparr of the same department. Sergeant Reader investigated the accident. Based upon extensive training and experience, he rendered expert testimony about the dynamics and cause of the accident. Sergeant Easparr testified about a statement that the defendant made to him at the scene following the accident.

After consideration of the evidence and applicable law, the court concludes that the Commonwealth has not established a prima facie case as to the felony and misdemeanor charges, Counts 1 through 4, so they are dismissed through today’s order. Defendant’s corpus delicti motion is also denied.

What follows is a summary of the evidence for the purposes of this motion. This evidence was presented exclusively by the Commonwealth in its attempt to establish a prima facie case. The evidence is uncontroverted. Each attorney summarized the evidence accurately in their excellent briefs.

Statement of Facts

Shortly after 9:00 a.m. on February 10, 2014, the defendant was operating a white Freightliner truck tractor with an enclosed trailer traveling northbound (which was actually in an easterly direction) on Route 222 approaching the intersection of Hamilton Boulevard with Newtown Road and Breinigsville Road in Upper Macungie Township, Lehigh County. The day was clear with no precipitation. The roadway was dry with some wet spots. There was plowed snow off the roadway beyond the fog line. For a motorist traveling northbound for a considerable distance on Route 222 before entering this intersection as defendant was, he would pass through the village of Maxatawny where the posted speed limit is 35 miles per hour. After traveling through that village, there is a posted speed limit of 55 miles per hour which posting is the final one before the motorist would arrive at this intersection. For the same motor vehicle operator traveling northbound, he would first see this intersection from approximately three-tenths of a mile before arriving at it. In the truck tractor that defendant operated, he sat higher than a person who operates a passenger vehicle.

As defendant drove his tractor trailer toward the intersection, vehicles in front of him were stopped or slowing because of the operational traffic signal at the intersection. The last vehicle in line of the slowing or stopped vehicles was a white Dodge Caravan operated by Mr. Knappenberger. As the truck and the Caravan approached the intersection, there were no vehicles between the truck and the Caravan.

Defendant had his truck in ninth gear in a ten-gear transmission. This is one gear short of over-drive. As Sergeant Reader explained, “In your passenger car, essentially it would be having it in the D with a circle around it like you were traveling on the highway.... It would be a gear selected generally if you were not intending to slow down or change speed.” C-5, p. 17.

Defendant failed to recognize in time that the vehicles in front of him, including Mr. Knappenberger’s, were either stopped or slowing. As a result, he failed to maintain control of his own vehicle. The data from the truck’s engine module control (EMC), which was retrieved later, indicated that defendant applied the brakes on the truck in what was described as abnormal or hard or panic braking. Immediately prior to reaching Mr. Knappenberger’s Caravan, defendant turned his truck to the right. Despite these attempts at evasion, the front of his vehicle on the driver’s side struck the rear passenger comer on the Caravan. The force and angle of that collision forced the Caravan across the middle lane and into the oncoming or southbound (westerly direction) lane of Route 222. Just at that moment, a separate tractor trailer was traveling in the oncoming lane. It was stmck by the Caravan under the driver’s side door in the area of the fuel tank which is on that truck’s driver’s side.

These were Sergeant Reader’s expert conclusions:

Based on everything we observed at the scene, the damage to the vehicles, the data that was gathered from the ECM module, I believe Mr. Savage was traveling down the roadway; gear selection indicates he was traveling with open space in front of him prior to getting to that intersection; and did not recognize that the open space was closing rapidly because there was vehicles stopped in front of him. As I testified, there were several other cars that pulled off. Those vehicles were forward of that Dodge van that day. They were indicative of the traffic signal that was either red or just changed to green or some sort of interaction where all those cars were stopped forward of Mr. Savage’s vehicle. He failed to recognize either enough to bring his vehicle to a stop or at least slow it to a point to keep control of it until those cars started to proceed away from him or forward of him. Those steps, pre-crash, contributed and caused the crash that is depicted in those pictures. Again, the panicked braking and offset or steering to the right, as we talked about, struck the van and pushed it into the oncoming lane.

C-5, pp. 28-29.

Following the accident, the police determined that a brake on defendant’s truck was out of adjustment. There was no proof nor was there an argument that this contributed to the accident. The investigation did not reveal any other mechanical problems with the tractor trailer. The precise speed at which the defendant was operating his truck immediately before his hard braking or at the point of impact is unknown. Sergeant Reader believed that it would be “unfair and not accurate” to render an opinion on the speed of defendant’s truck at impact based on the data available to him. He offered a range of speed between 30 and 52 miles per hour with his estimation that defendant traveled 40 miles per hour at impact. C-5, pp. 38-40.

There was no evidence that defendant was using a cell phone or any other extraneous device at the points of braking or impact. Defendant was tested for the presence of alcohol which yielded negative results.

At the direction of the police, the defendant remained seated in the truck cab following the accident. Sergeant Easparr spoke with the defendant while he was seated in the driver’s seat. The defendant told the sergeant that the accident was his fault. When the sergeant asked him to explain what happened, the defendant stated he was traveling northbound on Route 222. He noticed that there was a line of traffic stopped in front of him, but it was too late. He tried to apply the hard brake on a wet roadway, but the vehicle was not stopping. He swerved to the right but his truck collided with the passenger side rear of the Caravan which was the last vehicle in line of the stopped vehicles. That propelled the Caravan into the southbound lane of travel where the other tractor trailer struck the minivan and pushed it back in the other direction while the southbound tractor trailer went down the embankment.

Discussion and Conclusions of Law

The defense is challenging the sufficiency of the Commonwealth’s evidence on the felony and misdemeanor charges. The defense does this through its motion for writ of habeas corpus contained within the omnibus pre-trial motion. This is the appropriate procedural means for the pre-trial challenge to the sufficiency of the evidence. Commonwealth v. Huggins, 575 Pa. 395, 399 n.2, 836 A.2d 862, 864 n.2 (2003).

At the pre-trial stage, the Commonwealth does not have to prove the defendant’s guilt beyond a reasonable doubt. Rather, the Commonwealth’s burden is to present a prima facie case of the defendant’s guilt. Id. at 402, 836 A.2d at 866 (citation omitted). “A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Id. (citation omitted). In determining if a prima facie case has been established, the Commonwealth is entitled to reasonable inferences and the evidence must be read in the light most favorable to the Commonwealth’s case. Id. (citation omitted).

In the present case, for purposes of whether the Commonwealth has presented sufficient evidence, there is no dispute that Mr. Knappenberger died as a result of the defendant’s conduct in driving the tractor trailer. The primary issue is whether the mens rea elements of homicide by vehicle, involuntary manslaughter and recklessly endangering another person have been established by the evidence.

The statutory definition of Count 1, homicide by vehicle, in pertinent part, is: “Any person who recklessly or who with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth...applying to the operation or use of a vehicle or to the regulation of traffic...is guilty of homicide by vehicle, a felony of third degree, when the violation is the cause of death.” 75 Pa.C.S. § 3732(a). Thus, the mens rea requirement in this statute that the Commonwealth must prove is that the defendant drove his vehicle “recklessly or with gross negligence.”

The statutory definition of Count 2, involuntary manslaughter, is: “A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S. § 2504(a).

The appellate courts have construed the terms “reckless” and “grossly negligent” as defining the equivalent state of mind for purposes of these statutes. The same words are used in the statutes to set forth the mens rea elements for these crimes. See Commonwealth v. Colmer, 552 Pa. 527, 534, 716 A.2d 593, 597 (1998); and Commonwealth v. Grimes, 842 A.2d 432, 434 (Pa. Super. 2004).

The definition of the offenses charged in Counts 3 and 4, recklessly endangering another person, is found at 18 Pa.C.S. § 2705 which reads: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. The mens rea of recklessness is evident from this definition.

In that recklessness is the mens rea which the Commonwealth must demonstrate to proceed to trial on Counts 1 through 4, I examine what constitutes recklessness. It is defined in the general culpability section of the Pennsylvania Crimes Code in these words:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3). In order to consciously disregard a substantial and unjustifiable risk, one must be aware of the risk and choose to proceed in spite of it. Commonwealth v. Huggins, 575 Pa. at 400, 836 A.2d at 865.

May the court consider the statement defendant made to police following the accident? Defendant argues that I am precluded from considering the statement based on the corpus delicti rule.

“The corpus delicti rule places the burden on the prosecution to establish that a crime has actually occurred before a confession or admission of the accused connecting him to the crime can be admitted.” Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa. Super. 2012) (quoting Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006)). The Commonwealth must demonstrate the corpus delicti by a preponderance of the evidence. Commonwealth v. Hernandez, 39 A.3d at 411. In meeting this burden, the Commonwealth can rely on circumstantial evidence. Commonwealth v. Rivera, 828 A.2d 1094, 1103-1104 (Pa. Super. 2003) (citation omitted). Further, the Commonwealth does not have to prove that the alleged criminal act could not have been caused by accident. Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980).

The court accepts the Commonwealth’s “closely related crime” argument to the extent that it has presented a prima facie case for the summary offenses charged in Counts 5, 6 and 7. These offenses are sufficiently related to the felony and misdemeanor counts to permit introduction of defendant’s statement on Counts 1 through 4. (The Commonwealth has not shown recklessness required for Count 8. There is no motion before the court regarding this count.) I also believe that the corpus delicti rule is applicable to the admission of evidence at trial only. Therefore, I deny defendant’s motion to preclude consideration of his statement. I consider it in making the determination of whether there is a showing that defendant acted with recklessness on the felony and misdemeanor counts.

The question to be answered on the mens rea issue for Counts 1 through 4 is whether the Commonwealth produced primafacie evidence that defendant, in operating the tractor trailer in the circumstances that preceded the collision that resulted in the death of Mr. Knappenberger, disregarded a substantial and unjustifiable risk that the direct result of his behavior would be the death of Mr. Knappenberger. See Commonwealth v. Huggins, 575 Pa. at 407, 836 A.2d at 869 (posing this question in a factually similar case).

I have considered the many explanations of recklessness found in the appellate decisions counsel have cited. I have examined the circumstances in which these courts have and have not found recklessness. The cases were instructive. After consideration of these cases, the applicable statutes and the present facts, I conclude that the Commonwealth has not made a prima facie showing that the defendant acted with recklessness.

Defendant did not notice the stopped or slowing vehicle of Mr. Knappenberger in front of him and could not stop his tractor trailer before it crashed into the Knappenberger vehicle. There is no evidence that defendant was struggling to stay awake, that he was intoxicated, that he was using a cell phone or engaging in any other activity that would have distracted his view of the roadway. There is no showing that defendant was speeding or driving erratically. There is no evidence even inferring that defendant consciously disregarded a known risk when he collided with Mr. Knappenberger’s vehicle. Defendant’s statement to police that the accident was his fault does not change the analysis. It only confirms the known physical facts the police presented to the court.

As tragic as the accident was, under our law, “not every violation of the law or unlawful act committed while operating a motor vehicle will render the driver criminally liable for a death resulting from an accident in which the vehicle was involved.” Commonwealth v. Nicotra, 425 Pa. Super. 600, 608, 625 A.2d 1259, 1263 (1993) (quoting Commonwealth v. Sisca, 245 Pa. Super. 125, 129-30, 369 A.2d 325, 327 (1976)) (though Nicotra was decided prior to the amendment of the homicide by vehicle statute in 2000, the cited legal principle is equally applicable under the current law). The driver’s conduct must be reckless.

Because the Commonwealth has not made a prima facie showing that defendant acted with recklessness, the charges of homicide by vehicle, involuntary manslaughter and recklessly endangering another person must be dismissed. Therefore, Counts 1, 2, 3 and 4 are stricken from the criminal information.


author: GREEN, /.,

text:
    Keahey v. Keahey

      C.P. of Delaware County,
    No. 2013-003741

      George B. Keahey, pro se appellant.

      John Neumann Hickey, for appellee.

      Nov. 10, 2014
   GREEN, /.,

Appellant, George B. Keahey, filed the instant appeal following orders entered on June 18, 2014 granting Wendy Keahey’s motion for summary judgment and denying George B. Keahey’s motion for summary judgment. Appellant’s concise statement of errors complained of on appeal provides as follows:

1. The court erred in granting summary judgment to defendant on the defamation/libel count by determining that defendant has constitutional immunity protections for her defamatoiy/libelous statements under Pennsylvania and United States Law, because:
(a) Defendant was never a party in the Sec. 1983 Civil Litigation: George Keahey v. Bethel Township, et al.
(b) Defendant never was listed on the pre-trial witness list in the Sec. 1983 Civil Litigation George Keahey v. Bethel Township, et al. Litigation: George Keahey v. Bethel Township, et al. (sic)
(d) (sic) Defendant’s statements were published to Bethel Township’s representatives at her own volition and under her own conditions and not in court or during court or litigant ordered proceedings.
2. The court further erred in denying summary judgment for plaintiff on the defamation/libel count as a matter of law because it was uncontroverted that the statement:
(a) Was published to a third party;
(b) Applied to the plaintiff;
(c) It accused the plaintiff of criminal activity.
Pennoyer v. Marriot Hotel Services, 324 R Supp. 2d 614, 618 (E.D.Pa. 2004)(citing Clemente v. Espinosa, 749 R Supp. 672, 677 (E.D.Pa. 1990 (citing 42 Pa.C.S. § 343(a) 1988))).

Appellant, George N. Keahey, and appellee, Wendy Keahey are husband and wife, in the midst of a divorce. Mr. Keahey initiated the above-captioned civil matter by filing a complaint on or about April 18, 2013. Therein, he alleged “damages arising out of an affidavit published by Wendy Keahey.” (Appellant’s April 28, 2014 motion for summary judgment, ¶1). Mr. Keahey’s civil complaint sought damages for (1) Libel/defamation pursuant to 42 Pa. C.S. §8343, (2) Libel/defamation — common law and, (3) Wrongful use of judicial proceedings pursuant to 42 § 8351. (April 18, 2013 complaint). Relevant allegations of the complaint provide as follows:

13. At all times relevant to this complaint, defendant . [Wendy Keahey] knew that plaintiff [George B. Keahey] was a licensed practicing attorney who makes his living in the five counties of Pennsylvania and the USDC.
14. At all times relevant to this complaint, defendant knew that plaintiff has filed a law suit against Bethel Township and others in the USDC (Keahey v. Bethel Township, et al, 11-7210)[hereinafier “1983 action”].
15. Defendant knew that plaintiff was representing himself in the 1983 Action.
16. On or about October 18, 2012, defendant executed a false and defamatory affidavit against plaintiff. A true and correct copy of the affidavit is attached hereto and incorporated herein as Exhibit “A.”
17. Defendant knew that the affidavit would be publically filed in USDC.
18. Defendant knew that the Affidavit would be viewed by all counsel in the 1983 action.
19. Defendant knew that the affidavit would be viewed by any and all judges assigned in the 1983 Action.
20. The affidavit was publically filed October 23,2012. (sic) by the Bethel defendants in an attempt at having plaintiffs litigation dismissed.
21. Defendant vindictively conspired with Bethel defendants to thwart plaintiff’s success in the 1983 Action and cause him harm.
22. The affidavit is a public document and is available to view by counsel, judges and also the public at large through the USDC website.

The notarized affidavit which purportedly serves as the basis for instant civil suit was signed and dated on October 18, 2012. It provides the following:

The undersigned, Wendy Keahey, hereby deposes and says as follows:

1.1 married George Keahey on September 6, 2002.
2. Because of George’s credit background, the mortgage on 1584 Conchester Road was in my name only.
3. At the time of the marriage I owned a 1987 Mustang my father bought in 1988 and gave to me when I was in college.
4.1 also owned a Subaru which I traded in for a Ford F-150 truck, through a discount I had as an employee of a Ford dealership. The truck and loan were in my name only.
5. Several weeks before the incident on November 25, 2009.1 called police after George threw me across the kitchen when I was trying to leave to go to a friend’s home.
6. George was yelling, “Go ahead, run me over!” and other things as he stood in the back of the truck preventing me from leaving. I locked myself in the truck and called police.
7. When officers arrived, one officer took George to one side of the driveway and another officer got me and my dog out of the truck.
8. In a threatening tone, George said I better get a good attorney.
9. The officer warned George that he should be careful because I wasn’t pressing charges and allowed me to leave in the truck since it was in my name.
10. On the night before Thanksgiving, 2009, we had another argument. I was not drunk or under the influence of drugs.
11. George was secretly taking boxes from the home and placing them in the back of the truck which was locked and he had the only key. He refused to give me the key so I could see what he was trying to take out of the house.
12. We were also arguing because I believed George was seeing another woman, Irene Reardon, and I confronted him about this.
13. After calling the police, I waited outside on the walkway for police to arrive and I believe George was in the sunroom.
14. When officers arrived, one asked me where George was and I believe I walked him to the sunroom and opened the door.
15. George immediately started giving the officer a hard time and was argumentative and uncooperative.
16. An officer asked me if I had somewhere I could go and I said I did not and I really didn’t see why I had to leave.
17. I told the officer the mortgage was in my name alone, but the deed was in both of our names.
18. The officer with George then asked me to come inside.
19. He told me that George was willing to leave and wanted to know if George would take the truck.
20. I told the officer no, George would not take the truck and that it is in my name alone and suggested George call his girlfriend, Irene, for a ride.
21. By this point, George was no longer argumentative.
22. I went back outside and heard one of the officers offer to give George a ride and George walked away with them.
23. I did not see any of the officers forcibly remove George from the home.
24. During this time, George was wearing the same clothes he was wearing when he left for work in the morning.
25. Early the next morning, I heard the truck being started and I saw it being driven off.
26. After seeing the truck being driven off I called police.
27. Two officers arrived and I told them what had happened the night before and that George was told he wasn’t to take the truck.
28. The next thing I heard about the truck was from Officer Bradshaw who advised me that the D. A. had told them they couldn’t charge George with unauthorized use and there was nothing more they could do.
29. On January 23,2010, after George refused to return my truck, I took my truck from where it was parked on the street in front of the home of Irene Reardon.
30. When I got home, I had a message T felt was threatening from Irene Reardon (telling me I was “done”.)
31.1 was afraid of what they might do and called police.
32. An officer came to the house and listened to the message and said he could see how the message could be seen as threatening.
33. An order was issued in the divorce case that allowed George to use the Mustang for 30 days only. When the 30 days were up and George refused to return the Mustang, I contacted the police.
34. I did not know any of the officers at the Bethel Police.

FURTHER AFFIANT SAYETH NOT.

The affidavit was signed and dated by Wendy Keahey and notarized by Kristin Oliver, Notary Public Media Borough, Delaware County.

The instant matter was assigned to compulsory arbitration in the Court of Common Pleas of Delaware County and a report and award of arbitrators issued on January 14, 2014. Following an appeal from arbitration, a trial assignment and case management order was entered or about March 28, 2014. Said order established a deadline for filing dispositive motions, including motions for summary judgment, Mr. Keahey’s motion for partial summary judgment was filed on April 28, 2014 and Mrs. Keahey’s motion for summary judgment was filed on May 6, 2014.

In opposition to Mr. Keahey’s motion for partial summary judgment, Mrs. Keahey apprised the trial court of the factual underpinnings surrounding the 1983 action filed in the United District Court for the Eastern District of Pennsylvania, Keahey v. Bethel Township, et al, 11-cv-7210 (hereinafter “the federal action”) and the issuance of the affidavit described above. The December 13,2013 memorandum opinion of the honorable Ronald L. Buckwalter in the federal action aptly describes the course of events that lead to Mr. Keahey’s federal court action and the role of the affidavit at issue. (December 13, 2012, memorandum opinion of U.S.D.C.J Buckwalter attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment).

On the evening of November 25,2009, the Bethel Police responded to a call from Wendy Keahey, concerning a domestic dispute at the Keahey residence, 1584 Conchester Road, Bethel Township, Delaware County, Pennsylvania. (December 13, 2012, memorandum opinion of U.S.D.C.J Buckwalter, p. 1, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiff’s motion for summary judgment). [Bethel] Officers James Register and Brian Buck responded to the call. Id. The officers arrived in separate cars, and they observed that there were two vehicles parked outside the residence, a Ford F150 truck and 1987 Mustang. Id. at 2. Officer Buck described the couple as being “verbally combative upon [their] arrival.” Id. According to Officer Register, Wendy Keahey was “heated” and “agitated” upon the officers arrival, the couple was arguing, and Wendy Keahey was “adamant” that she wanted her husband out of the house. Id. The officers then separated the couple to question them separately. Ms. Keahey informed Officer Buck that the mortgage to the property was in her name and the FI50 truck and 1987 Mustang were titled solely in her name. Id. When asked by Officer Buck if she had somewhere else she could go, Wendy Keahey replied that she did not. Id. Officer Register asked George Keahey if he had somewhere else he could go, and Mr. Keahey stated he had a friend’s house to which he could go and voluntarily agreed to do so. Id. Wendy Keahey refused to let her husband take the FI50 truck and suggested that he contact Irene Reardon, a woman Mr. Keahey was allegedly seeing, and ask her for a ride. Id.

Mr. Keahey describes a different scene. (December 13, 2012, memorandum opinion of U.S.D.CJ Buckwalter, p. 2, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). He states that his wife was “very inebriated” and “really looped” when the officers arrived. Id. He also states that, while his wife was angry that he would not give her the keys to the Ford FI50 as a result of her intoxication, he would not classify the situation as an “argument.” Id. He also claims that he had been home from work for only ten minutes and was just sitting down to eat when the police arrived. Id. at 3. Mr. Keahey says that Officer Buck said to him, “One of you has to leave. You both can’t stay in the house tonight.” Id. He was also told that he would be unable to take the FI50 truck or the Mustang to leave because they were his wife’s vehicles. Id. Finally, Officer Register told Mr. Keahey that he was going to take him in his police car, and asked if Keahey wanted to get his coat. Id.

Mr. Keahey was eventually taken by Officer Register in his police car and dropped off at a nearby McDonald’s restaurant. (December 13, 2012, memorandum opinion of U.S.D.CJ Buckwalter, p. 3, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). At the time, Keahey states that he felt he was under arrest “in a legal sense,” and felt this way because he was going to get in the front seat of the car but was told he need to sit in the back seat. Id. Mr. Keahey was picked up and given a ride by Ms. Reardon to another friend’s house where he spent the night. Id.

Mr. Keahey returned to the property the next morning. (December 13, 2012, memorandum opinion of U.S.D.CJ Buckwalter, p. 3, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). When his wife discovered he had returned, she “started screaming” and Mr. Keahey took the Ford FI50 truck and left. Id. Mrs. Keahey then informed [Bethel] Officer Bradshaw and Detective Mervine of the previous night’s events, told them that her husband did not have her permission to use the truck, and that she did not want to file charges against her husband. Id. at 4. Mr. Keahey spoke with Detective Mervine advising that he did not have to return the truck and was not planning on doing so. Id. Later that day, a “stop and hold” order was placed on the truck. Id. The “stop and hold” order was removed the following day after Officer Bradshaw consulted with the Delaware County District Attorney’s Office. Id.

On Januaiy 23, 2010, upon discovering the truck parked outside the home of Irene Reardon, Ms. Keahey took the truck and parked it at a new location. (December 13,2012, memorandum opinion of U.S.D.CJ Buckwalter, p. 4, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). Upon discovering that the vehicle was missing, Mr. Keahey called the Bethel Police and demanded that the truck be returned to him as he had personal belongings and items needed for his law practice. Id. at 5. He also advised the Bethel police that he had a court order allowing him to use the truck. Id. On the same day, Mrs. Keahey contacted the Bethel police and informed them that Irene Reardon had called and threatened her. Id. She advised that she would return her husband’s personal belongings and items needed for his law practice, but she would not return the truck. Id. Upon being informed that his belongings would be returned by his wife, Mr. Keahey advised that he wanted his wife charged with theft. Id. Mr. Keahey was advised that if he wanted charges filed, he needed to contact the police where the alleged theft took place, Aldan Borough [Delaware County, Pennsylvania]. Id. On February 17, 2010, the Delaware County Court of Common Pleas entered an order permitting Mr. Keahey to use what was identified as Wendy Keahey’s 1987 Mustang” for a period of thirty days, “at which time he shall return the vehicle to Wendy Keahey without further proceeding.” Id. at 6.

Following the above-described course of events, Mr. Keahey filed an action in the United States District Court for the Eastern District of Pennsylvania bringing six counts: (1) seizure and detention without probable cause in violation of 42 U.S.C. § 1983; (2) seizure and deprivation ofproperty in violation of 42 U.S.C. § 1983; (3) conspiracy to deprive plaintiff of his rights under § 1983; (4) false imprisonment; (5) harassment; and (6) malicious abuse of process. (December 13, 2012, memorandum opinion of U.S.D.CJ Buckwalter, p. 7, attached as Exhibit B to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). Counts (5) harassment and (6) malicious abuse of process claims were dismissed and Mr. Keahey later agreed to drop count (3) the conspiracy claim. The remaining claims were ultimately dismissed following Judge Buckwalter’s consideration of the Bethel defendants’ motion for summary judgment.

Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter Summary Judgment. Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). In the instant matter, the trial court ranted Mrs. Keahey’s motion for summary judgment finding that Mrs. Keahey was not a named party in the federal court action. The affidavit dated October 18, 2012 was attached to a legal pleading filed on behalf of Bethel Township in that matter.

As part of his Rule 26 Disclosure in the federal action, Mr. Keahey listed Wendy Keahey, as a witness. (Exhibit A to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment). Mrs. Keahey signed an affidavit at the behest of the Bethel Township defendants. This affidavit was affixed to Bethel Township Police defendant’s motion for leave to file affidavit of Wendy Keahey. Wendy Keahey’s role in the federal action was that of a witness. As a result of the Bethel Township Police defendants utilizing Mrs. Keahey’s affidavit, Mr. Keahey sued his wife for defamation and wrongful use of civil proceedings. Even in the light most favorable to the nonmoving party, Mrs. Keahey is entitled to judgment as a matter of law.

To the extent that Mr. Keahey was prosecuting his wrongful use of civil proceedings theory, said claim must fail. 42 Pa.C.S.A. § 8351, wrongful use of civil proceedings, provides in relevant part:

a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against.another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

As Mrs. Keahey was not a party to the federal action, any claims under Count III — wrongful use of judicial proceedings pursuant to 42. Pa.C.S. § 8351, were properly dismissed.

Summary judgment was also appropriately granted on the defamation counts. Pursuant to the judicial privilege, a person is entitled to immunity for communications that are issued in the regular course of judicial proceedings. Statements made during judicial proceedings by a party, witness, counsel or judge, whether occurring in open court or in the pleadings, are absolutely privileged and thus cannot give rise to a defamation action. Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004). The judicial privilege is based on the “public policy which permits all suiters, however bold and wicked, however virtuous and timid, to secure access to the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate.” Id. The judicial privilege is extended not only to parties so that they are not deterred from using the courts, but also to judges so that they may “administer the law without fear of consequences,” “to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests.” Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971)(emphasis added); Bochetto v. Gibson, 580 Pa. 245, 251, 860 A.2d 67, 71 (2004).

There is no civil liability for publishing an alleged defamatory statement in a judicial proceeding or as part of a judicial proceeding if it has some relation to the proceeding. Statements by a party, a witness, counsel, or a judge cannot be the basis of a defamation action whether they occur in the pleadings or in open court. Mosley v. Observer Publishing Company, 619 A.2d 343, 345 (Pa. Super. 1993); Morley v. Gory, 814 A.2d 762, 765 (Pa. Super. 2002). Wendy Keahey’s role in the federal action was that of a witness. As a result of the Bethel Township Police Defendants utilizing Mrs. Keahey’s affidavit, Mr. Keahey seeks damages in this civil suit. However, as statements by a witnesses in a judicial proceeding cannot be the basis of a defamation action, summary judgment was appropriately entered in favor of Mrs. Keahey and against Mr. Keahey.

For the aforementioned reasons, the trial court respectfully requests that its decision be affirmed.

      . George B. Keahey, an attorney licensed in the Commonwealth of Pennsylvania, represents himself in this matter.

      . George Bruce Keahey v. Wendy Ann Jones Keahey, Delaware County Court of Common Pleas, 2009-015560.

      . At the arbitration, Mr. Keahey withdrew Count III •— wrongful use of judicial proceedings. “For purposes of the arbitration — plaintiff withdraws Count III of his complaint. (January 14, 2014, report and award of arbitrators).

      . Internal citations omitted.

      . Mr. Keahey appealed the dismissal of the federal action to the third circuit court of appeals but that appeal was also dismissed. (Exhibit D to defendant’s May 6, 2014, memorandum of law in opposition to plaintiffs motion for summary judgment)

      . At the arbitration, Mr. Keahey withdrew Count III — wrongful use of judicial proceedings. “For purposes of the arbitration — plaintiff withdraws Count III of his complaint. (January 14, 2014, report and award of arbitrators).