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HomeMy WebLinkAbout2015-2210 KIMBERLY L. TRACEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DAVID JENKINS and THE : SILVER SPRING POLICE : DEPARTMENT, : Defendants : NO. 2015-02210 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035.2 BEFORE MASLAND, PECK, JJ., and OLER, S.J. ORDER OF COURT th AND NOW, this 6 day of October, 2017, upon consideration of the Defendant David Jenkins’ Motion for Summary Judgment, the oral argument held on August 11, 2017, and the Plaintiff having failed to appear at that argument, and for the reasons set forth in the accompanying opinion, it is hereby ORDERED that Defendant’s Motion for Summary Judgment is GRANTED. The sole remaining count of assault against Defendant David Jenkins is accordingly DISMISSED and this case shall be closed by the Prothonotary. BY THE COURT, Christylee L. Peck, J. Kimberly L. Tracey 464 Sample Bridge Road Enola, PA 17025 Plaintiff, pro se Donald L. Carmelite, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 100 Corporate Center Drive, Ste. 201 Camp Hill, PA 17011 Attorneys for Defendant, David Jenkins KIMBERLY L. TRACEY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : DAVID JENKINS and THE : SILVER SPRING POLICE : DEPARTMENT, : Defendants : NO. 2015-02210 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035.2 BEFORE MASLAND, PECK, JJ., and OLER, S.J. OPINION Peck, J., October 6, 2017 – I. FACTS Viewing the facts favorably to Plaintiff as required in a review of a motion for summary judgment, the following facts are disclosed by the record: Defendant Jenkins is a Police Officer employed by the Silver Springs Police 1 Department, an agency of the Silver Springs Township. On June 17, 2013, Defendant Jenkins and other Officers of the Silver Springs Police Department entered onto Plaintiff’s property over Plaintiff’s objections and without a warrant in order to search for 2 Plaintiff’s son, who had absconded from a halfway house in Reading, Pennsylvania. Upon Plaintiff’s objections to the warrantless entry onto the property, Defendant Jenkins 3 insulted the Plaintiff and told her that he would not leave. While on Plaintiff’s property, Defendant Jenkins “bumped \[Plaintiff’s\] breast with his chest,” causing the Plaintiff 4 pain. Defendant Jenkins then placed his hand on and patted his sidearm and remarked to 5 Plaintiff that he “better not catch \[Plaintiff\] in a dark alley.” Plaintiff indicated that these 1 See Pl.’s Compl., “Parties Involved”, ¶2, Apr. 16, 2015. 2 See Pl.s’ Compl., “First Complaint”, ¶1-2, Apr 16, 2015. 3 Id. at ¶3. 4 Id. at ¶2. 5 Id. 6 actions and remarks were a “serious threat.” Plaintiff did not allege any physical or 7 mental injury resulting from the incident that took place between her and Defendant, and 8 has not received any treatment for the same resulting from the incident. II. PROCEDURAL HISTORY Plaintiff filed a Complaint on April 16, 2015 in the Cumberland County Court of Common Pleas naming as Defendants Police Officer David Jenkins and the Silver 9 Springs Police Department. In the Complaint, Plaintiff sought relief from both 10 Defendants for defiant trespass, terroristic threats, and assault. Defendants filed preliminary objections to Plaintiff’s Complaint on June 25, 2015 alleging improper 11 service of the Complaint. The preliminary objections were sustained by this Court, and 12 Plaintiff was directed to properly serve the Complaint on the Defendants. Plaintiff filed a Praecipe to reinstate Complaint and effected proper service upon the Defendants on 13 August 20, 2015. Defendants filed Preliminary Objections to Plaintiff’s reinstated Complaint on September 9, 2015, which were sustained in part and overruled in part by 14 this Court. After consideration of Defendants’ motion for partial reconsideration of the October 27, 2015 Order relating to Defendant’s preliminary objections and Plaintiff’s and Defendants’ Responses thereto, this Court on February 24, 2016 dismissed Plaintiff’s 6 Id. 7 See Pl.’s Answer to Def.’s First Set of Interrogs., ¶9, 13. 8 Id. at ¶10, 12. 9 The Plaintiff’s Complaint was later amended to substitute Silver Springs Township for the Silver Springs Police Dept. as the proper defendant. See Am. Compl., 2, at ¶2, Dec. 1, 2015. 10 See Pl.’s Compl., Apr. 16, 2015; see also Am. Compl., Dec. 1, 2015. 11 See Def.s’ Prelim. Objections to Pl.’s Compl., June 25, 2015. 12 In Re: Def.’s Prelim. Objections before Guido, Ebert, Oler, JJ., Order of Ct., (Aug. 26, 2015). 13 See Pl.’s Praecipe to Reinstate Complaint, Aug. 20, 2015; see also Sheriff’s Return of Service, Aug. 28, 2015. 14 Plaintiff’s claims for terroristic threats and defiant trespass against each Defendant were dismissed with prejudice, but Plaintiff was permitted to move forward with claims for civil trespass and assault against each Defendant. Considering the nature of the Plaintiff’s allegations, this Court allowed the Plaintiff to move forward with claims for civil assault and civil trespass against the Defendants, although Plaintiff did not specifically plead these causes of action originally. The Court also dismissed all claims against the Silver Springs Police Department as an improper Defendant, giving the Plaintiff leave to amend the Complaint to name the Silver Springs Township as the Proper Defendant. In Re: Def.’s Prelim. Objections before Guido, Masland, and Peck, JJ. Order of Ct., (Oct. 27, 2015). 2 claims against the Silver Springs Township, with Officer David Jenkins remaining as the 15 sole Defendant in the action. The claim for civil trespass against Defendant David Jenkins was dismissed, leaving assault as the only remaining claim against Defendant 16 David Jenkins. Discovery was thereafter initiated by the Defendant; Plaintiff was served with interrogatories on August 29, 2016, which were duly answered by the Plaintiff, and Plaintiff was deposed on November 18, 2016. Plaintiff has not, to the time of this Opinion and Order, engaged in her own discovery of Defendant. On April 19, 2017, 17 Defendant filed a motion for summary judgment. On May 16, 2017, Plaintiff 18 responded to Defendant’s motion for summary judgment. On August 11, 2017, argument was heard from Defendant only regarding Defendant’s motion for summary judgment, as Plaintiff failed to appear. Defendant’s motion for summary judgment is now before this Court. III. DISCUSSION A.Summary Judgment Standard of Review “Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989). After the relevant pleadings are closed, a party may move for summary judgment in two instances: (1) 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, or (2) 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 15 The Complaint was dismissed as to the Township because the statute of limitations for bringing the Complaint against a new party had lapsed, and civil trespass claims cannot be asserted against a political subdivision or its agents. In Re: Def.s David Jenkins and the Silver Spring Police Dept.’s Mot. for Partial Recons. of the Ct.’s Oct. 27, 2015 Order, (Feb. 24, 2016). 16 Id. 17 Def.’s Mot. for Summ. J., Apr. 19, 2017. 18 Pl.’s Resp. to Def.’s Mot. for Summ. J., Apr. 16, 2017. 3 of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. “\[T\]he court may grant summary judgment only when the right to such a judgment is clear and free from doubt.” Sebast v. Kakouras, 915 A.2d 1147, 1153 (Pa. 2007). “In considering the merits of a motion for summary judgment, a court views 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.” Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005). “\[W\]here a motion for summary judgment has been made and properly supported, parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial.” Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991). “Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.” Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (citing Babb v. Centre Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012). Further, “failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.” Id. When ruling on a defendant's summary judgment motion, the Court must initially determine whether plaintiff has alleged facts sufficient to constitute a prima facie case. Ack v. Carroll Twp. Auth., 661 A.2d 514, 516 (Pa. Cmwlth. 1995). Even assuming everything plaintiff alleged was true and affording plaintiff the benefit of all reasonable inferences to be drawn from those alleged facts, summary judgment is proper as a matter of law if plaintiff has failed to establish a prima facie case, as there are no material issues of fact to be decided at this stage. Id. at 517. B.Analysis The Plaintiff has not produced evidence to support an assault claim against Defendant that would allow the issue to be submitted to a jury. To support a claim of civil 4 assault, the Plaintiff must present evidence to show that the actor “intended to cause a harmful or offensive contact, or an imminent apprehension of such contact with the person of another or a third person, and the other is thereby put in immediate apprehension of such contact.” Renk v. City of Pittsburgh, 641 A.2d 289, 294-295 (Pa. 1994) (Montemuro, Diss. Op.) (citing R (Second) T §21(1) (1965)). ESTATEMENTOF ORTS “Words in themselves, no matter how threatening, do not constitute an assault; the actor must be in a position to carry out the threat immediately, and he must take some affirmative action to do so.” Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa. 1960) (citing Bechtel v. Combs, 70 Pa. Super. Ct. 503 (1918). As the party bringing the suit, the Plaintiff has the burden to present facts of record that create a genuine issue for trial with respect to each of the elements of assault in order to survive a summary judgment motion by the Defendant. Here the Plaintiff has not presented any evidence outside of the pleadings that would present a material issue of fact on which to support a case of assault. Plaintiff has alleged that Defendant intimated to her at the time of their interaction that at some indeterminate point in the future, should 19 he “catch her in a dark alley” that he would use his gun on her. However, Plaintiff has not provided this Court with any record evidence to show that Defendant’s actions put her in immediate fear of harm, and has furthermore stated that the threats made by 20 Defendant caused her subjective concern for some future time. Plaintiff therefore, by her own admission, was not in immediate fear of apprehension of a battery, which is 21 necessary to support a claim of civil assault. Furthermore, Plaintiff has not conducted any discovery of Defendant; she has not taken any depositions, served any interrogatories or requests for admissions, acquired any statements from witnesses, and otherwise has not made any good-faith attempt to support her claims with facts of record. Plaintiff’s bald assertions in the pleadings and her own admissions during her deposition and answers to interrogatories do not present a genuine 19 See Pl.s’ Compl., “First Complaint”, ¶2, Apr 16, 2015. 20 See Kimberly L. Tracey Dep., 72:21-73:9, Nov. 18, 2016. 21 See Cucinotti v. Ortmann, 159 A.2d at 217. 5 issue of material fact for trial; therefore, summary judgment is appropriate and Defendant is entitled to judgment as a matter of law. C.Conclusion Because Plaintiff has not produced any evidence of record to raise a substantial issue of material fact with respect to her claim for civil assault, Defendant’s motion for summary judgment must be granted. BY THE COURT, Christylee L. Peck, J. Kimberly L. Tracey 464 Sample Bridge Road Enola, PA 17025 Plaintiff, pro se Donald L. Carmelite, Esq. Marshall, Dennehey, Warner, Coleman & Goggin 100 Corporate Center Drive, Ste. 201 Camp Hill, PA 17011 Attorneys for Defendant, David Jenkins 6