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HomeMy WebLinkAboutCP-21-CR-0003498-2019 (3) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL SCHRIM : CP-21-CR-3498-2019 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION OPINION AND ORDER OF COURT Masland, J., June 12, 2020:-- On December 5, 2019, Defendant Michael Schrim, a physical therapist, was terminated by his now former employer, Alma Health Skilled Services (“AHSS”). Acrimony followed, as it often does in such situations, and Defendant ultimately left the AHSS office building with some documents in hand: documents belonging to AHSS, but 1 which Defendant had prepared in his capacity as employee. AHSS then called the police, who arrested Defendant in the vicinity of the building. The Commonwealth, echoing AHSS, contends that any right of Defendant to possession of the documents ended coincident with his termination, such that Defendant’s actions constituted Theft by Unlawful Taking. The Commonwealth had initially charged Defendant with Robbery as well, on the basis of an alleged tug-of-war over the documents between Defendant and another AHSS employee, but that charge did not survive Defendant’s Preliminary 2 Hearing. In the Omnibus Pretrial Motion now before us, Defendant raises a number of issues. We will grant Defendant’s Motion for Habeas Corpus Relief, on the basis that 1 Transcript of Preliminary Hearing, December 18, 2019, at 11:14-18, (hereafter N.T. ). 2 The following exchange occurred at Defendant’s Preliminary Hearing. Defense Counsel: “\[T\]his is nothing more than a feud between an employee and employer.” The Court: “I’m kind of getting that impression.” N.T. 20:5-8. We got that impression as well. CP-21-CR-3498-2019 the crime charged simply did not occur, and therefore need not address the other issues. I. Discussion Defendant contends that the Commonwealth has failed to establish its prima facie case, in that the Commonwealth did not demonstrate that Defendant’s conduct, even as alleged to have occurred, constituted the crime charged. Defendant relies heavily on the language of the employment contract (“Contract”) between Defendant and AHSS. If Defendant acted within his contractual rights with respect to the documents in question, it is axiomatic that there could have been no theft. The relevant provision of the Contract states: Upon termination, if feasible, \[Defendant\] shall return or destroy all PHI \[“Protected Health Information”\] received from, or created or received by \[Defendant\] on behalf of, \[AHSS\] that \[Defendant\] still maintains in any form and shall 3 retain no copies of such information. Defendant was required to return or destroy the documents in his possession and evidently did not do so. Whether this constituted a violation of his contractual obligations, however, depends on the question of timing; i.e. how soon following termination was Defendant required to either return or destroy the documents? The Contract supplies no such term, which is clearly “essential to a determination of \[the 4 parties’\] rights and duties,” and so we must do so ourselves. “It is hornbook law that 3 Defendant’s Omnibus Pretrial Motion, filed March 19, 2020, Exhibit B, §V, §§(C). 4 Hodges v. Pennsylvania Millers Mut. Ins. Co., 673 A.2d 973, 974 (Pa Super. 1996). -2- CP-21-CR-3498-2019 where no time is specified for performance of a contractual obligation, the courts will 5 require that the obligation be performed within a reasonable time.” In the case sub judice, it appears that mere minutes elapsed between 6 Defendant’s termination and his arrest outside his former office building. We find it decidedly unreasonable to read the Contract as having required Defendant to return or 7 destroy the documents within that brief window of time. The self-evident purpose of the provision in question was to prevent the dissemination of sensitive information, not to guarantee AHSS instant or on-demand possession of the documents following 8 termination of Defendant. The Commonwealth itself acknowledges that Defendant would have been within his rights to tear up the documents before the eyes of his 9 employer. Exactly when, or even whether, AHSS was to receive the documents from Defendant was of no consequence in preventing the anticipated harm, nor is there any indication in the record that Defendant intended to share the documents with any third 10 parties. Instead, the record indicates that Defendant was motivated partly by general vexation, partly by a desire to review the documents, his work product, for professional 5 Id. at 975. 6 Affidavit of Probable Cause. 7 Needless to say, Defendant’s obligation to return or destroy the documents under the Contract was, from the time of his arrest, excused on grounds of impracticality per R.2d. Contracts, §261, 264. 8 Defendant returned some of the documents and a laptop prior to the arrival of the police. N.T. 14:7-9. If there were any other documents taken by the Defendant from the office building, they must have found their way to Defendant’s vehicle, and would presumably have been recovered by the police in their subsequent search thereof. And yet, AHSS appears not to have recovered any such documents, indicating either that none such existed or that AHSS was not particularly concerned with their fate. N.T. 7:16-19. 9 N.T. 25:16-24. 10 It is unclear whether Defendant ever intended to remove the documents from the vicinity, given that he left his car keys inside the office building at the time of his departure. N.T. 14:10-11. -3- CP-21-CR-3498-2019 11 purposes before either returning or destroying them. Therefore, we find that Defendant was acting within the scope of his contractual rights in continuing, for a short time following termination, to possess the documents, and so his actions with respect thereto cannot be characterized as any species of theft. Our holding supra is sufficient to resolve this case, but we feel obliged to present an alternative framework for analysis of this matter. In civil matters, our Supreme Court has long endorsed the “gist of the action” doctrine, whose function is to clearly delineate the boundary between the realms of contract and tort. In essence, this doctrine holds that an action lies either in contract or in tort depending on whether the malefactor 12 violated a contractual duty or a “broader social duty owed to all individuals.” Initially both may be pled in the alternative. Ultimately, one must prevail. In this context, the distinction between crime and contract violation is essentially the same as the distinction between tort and contract violation. In short, this civil doctrine informs our common sense regarding the nature of this case. And what is the gist of the action before us? Defendant allegedly violated his duty to return or destroy certain documents. That duty arose directly and exclusively from the plain language of the Contract. Accordingly, we not only suggest but order who should prevail in this “criminal” matter. ORDER OF COURT AND NOW, this day of June, 2020, for the foregoing reasons, the Commonwealth having failed to establish a prima facie case, Defendant’s Motion for 11 Affidavit of Probable Cause. 12 Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014). -4- CP-21-CR-3498-2019 Habeas Corpus Relief is GRANTED and the charge of Theft by Unlawful Taking is DISMISSED. By the Court, Albert H. Masland, J. Nichole Vito, Esquire District Attorney’s Office Brian P. Platt, Esquire Abom & Kutulakis, LLC 2 West High Street Carlisle, PA, 17013 -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL SCHRIM : CP-21-CR-3498-2019 IN RE: DEFENDANT’S OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of June, 2020, for the foregoing reasons, the Commonwealth having failed to establish a prima facie case, Defendant’s Motion for Habeas Corpus Relief is GRANTED and the charge of Theft by Unlawful Taking is DISMISSED. By the Court, Albert H. Masland, J. Nichole Vito, Esquire District Attorney’s Office Brian P. Platt, Esquire Abom & Kutulakis, LLC 2 West High Street Carlisle, PA, 17013