Loading...
HomeMy WebLinkAbout93-1576 civilWILLIAM F. KANE, Plaintiff VS. THOMAS GAUGHEN, THOMAS GAUGHEN REALTY, and CHARLES GEROW, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1576 CIVIL 1993 · CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT, CHARLES GEROW BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this day of January, 1999, the motion of the defendant, Charles Gerow, for summary judgment is GRANTED. BY THE COURT, Michael J. Navitsky, Esquire For the Plaintiff ,~X. Hess, J. Douglas B. Marcello, Esquire For Defendants Gaughen Matthew Chabal, III, Esquire For Defendant Gerow :rim WILLIAM F. KANE, Plaintiff VS. THOMAS GAUGHEN, THOMAS GAUGHEN REALTY, and CHARLES GEROW, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1576 CIVIL 1993 CIVIL ACTION- LAW JURY TRIAL DEMANDED IN RE: MOTION FOR SUMMARY JUDGMENT. OF DEFENDANT, CHARLES GEROW BEFORE BAYLEY AND HESS, JJ.. OPINION AND ORDER This court addressed this case in September of 1998, specifically with regard to defendant, Thomas Gaughen. At that time we granted summary judgment. Before us, now, is the motion of the remaining defendant, Charles Gerow, for summary judgment. The events that give rise to the above captioned civil action occurred during the 1991 campaign for Cumberland County Commissioner. In that political race the plaintiff, William F. Kane, was involved in a five-way primary contest that included defendant, Charles Gerow. During the campaign, a mailing was produced and distributed that made disparaging comments regarding the plaintiff. The letter stated at the bottom that its production and distribution had been paid for by the "Conservative Republican Committee, a registered political action committee," and that it was "[n]ot authorized by any Candidate or Candidate's Committee." The letter later became the subject of criminal charges against W. Gregory Rothman, who is not a party to this action. The plaintiff contends that Mr. Rothman identified defendants Thomas Gaughen and Gerow as co-conspirators. The plaintiff asserts that the letter was authored, produced, financed, and distributed by defendants Gerow, Gaughen, and Thomas Gaughen 1576 CIVIL 1993 Realty, as well as by Mr. Rothman. Following a discovery .period that was extended for more than a year, defendam Gerow filed a motion for summary judgment. The current standard for summary judgment is set forth in Pennsylvania Rule of Civil Procedure 1035.2, which states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (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 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. The plain language of the role makes it clear that the party who bears the burden of proof at trial, in this case the plaintiff, must be able to produce some evidence that it can in fact prove the essential elements of its case at trial following the close of discovery. This standard was adopted officially in 1996, however it was in use prior to the new role. In 1991 the Pennsylvania Superior Court stated in essence the same standard: It is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicated that the plaintiff is unable to satisfy an element of his cause of action. Godlewski v. Pars Mfg. Co., 408 Pa. Super. 425,597 A.2d 106 (1991). In addition, when considering whether summary judgment is proper, a court must examine the record in the light 1576 CIVIL 1993 most favorable to the non-moving party, with all doubts resolved against the moving party. Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992). In the case at bar, defendant Gerow brings this motion for summary judgment asserting that the plaintiff has failed to meet his burden. We agree. The plaimiff has offered one deposition, a copy of the letter in issue, and three newspaper articles to support his defamation action. The deposition of Mr. Rothman, who supposedly named the defendants as co- conspirators, however, does not support the plaintiff' s contentions. Mr. Rothman asserted his Fifth Amendment privilege throughout and in doing so never named the defendants as his co- conspirators. There is nothing in the offending letter which makes any reference to the defendants. The newspaper articles, . clearly inadmissible at the trial of this matter, make reference to the existence of an affidavit signed by Mr. Rothman naming Gaughen and Gerow as his co-conspirators. There is no evidence, whatsoever, in the record of this case which supports that contention nor has discovery produced this affidavit. However, even accepting as fact that the affidavit exists and that the district attorney refuses to release it does not advance the plaintiff's cause. The fact remains that no formal steps have been taken to make the affidavit a part of the record of this case. The end result is an open-ended discovery period and the pendency of litigation with no assurance that the case will ever be tried. This result is untenable. In the meantime, defendant Gerow has filed an affidavit which states that he did not author, distribute, encourage or finance the document and, moreover, had no knowledge of it nor was involved in its authoring, distribution or financing. We are mindful that this affidavit, standing alone, is insufficient to grant'summary judgment. It is well established that summary 1576 CIVIL 1993 judgment may not be granted solely based upon the oral testimony of the moving party. See Nanty-Glo v. American Surety Co., 309 Pa.236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). When, however, the response of the plaintiff contains no evidence of the facts essential to his cause of action, summary judgment is clearly warranted under the roles. ORDER AND NOW, this day of January, 1999, the motion of the defendant, Charles Gerow, for summary judgment is GRANTED. Michael J. Navitsky, Esquire For the Plaimiff BY THE COURT, '.SS / Douglas B. Marcello, Esquire For Defendants Gaughen Matthew Chabal, III, Esquire For Defendant Gerow 'rim