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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 DEFENDANTS GAUGHEN BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this day of September, 1998, the motion of the defendant Thomas Gaughen and Thomas Gaughen' Realty for summary judgment is GRANTED. Michael J. Navitsky, Esquire For the Plaintiff BY THE COURT, ,/ 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 · ~ 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 DEFENDANTS GAUGHEN BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER 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 allegedly 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." Subsequently, the letter 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 defendant Thomas Gaughen and defendant Gerow as co-conspirators. The plaintiff asserts that the letter was authored, produced, financed, and distributed by defendants Gerow, Gaughen, and Thomas Gaughen Realty, as well as by Mr. Rothman. Following a discovery period that was extended for the past year, defendants Gaughen and Thomas Gaughen Realty filed a motion for 1576 CIVIL 1993 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.Civ. P. 1035.2. The plain language of the rule 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 rule. 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, 431,597 A.2d 106, 109 (1991). In addition, when considering whether summary judgment is proper, a court must examine the record in the 2 1576 CIVIL 1993 light most favorable to the non-moving ~y, with all doubts resolved against the movir/g party, Denlinger, Inc. v. Dendler, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992). In the case at bar, defendants Gaughen and Thomas Gaughen Realty bring this motion for summary judgment and assert that the plaintiff has failed to meet his burden. We agree. The plaintiff 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. Ther~ 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 alleged affidavit. In the meantime, the defendant, Thomas Gaughen, has filed an affidavit in which he 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 judgment may not be gran. ted 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 3 1576 CIVIL 1993 clearly warranted under the rules. ORDER AND NOW, this 2 ~ day of September, 1998, the motion of the defendant Thomas Gaughen and Thomas Gaughen Realty for summary judgment is GRANTED. Michael J. Navitsky, Esquire For the Plaintiff Douglas B. Marcello, Esquire For Defendants Gaughen Matthew Chabal, III, Esquire For Defendant Gerow :rim BY THE COURT, 4