R. A. Johnson v. City of Uniontown, PA, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald A. Johnson, Appellant v. City of Uniontown, PA and its Police Dept., Officer John Doe of the Uniontown Police Dept., and its Chief, City of McKeesport, and its Police Dept., Chief Tom Carter, Captain Eugene Riazzi, Det. Glenn Lynn, Lt. White, Det. Green, Det. John Doe, (in charge of case) (All of the above-named defendants are sued in their individual and official capacities) BEFORE: : : : : : : : : : : : : : : : : : No. 494 C.D. 2007 Submitted: June 22, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE KELLEY FILED: March 19, 2008 Ronald A. Johnson, pro se, appeals from an order of the Court of Common Pleas of Allegheny County (Trial Court) that granted the Motion for Summary Judgment filed by City of McKeesport and its Police Department, Chief Tom Carter, Captain Eugene Riazzi, Detective Glenn Lynn, Lieutenant White, Detective Green, and Detective John Doe (collectively, the Defendants).1 We affirm. Johnson is currently incarcerated at the State Correctional Institution at Albion, Erie County, Pennsylvania. He brought the instant civil action - alleging violations of his civil and constitutional rights, as well as the torts of willful misconduct, fraud, false arrest, false imprisonment, malicious prosecution, civil conspiracy and emotional distress - as a result of the following events. On October 25, 1998, Lieutenant Waite of the McKeesport Police stopped a vehicle in the course of responding to a burglary dispatch. During that stop, the driver fled, striking the officer with his vehicle. Following a police chase that was aborted, the driver escaped and the vehicle was later found, from which fingerprints were lifted that included Johnson s. Thereafter, Johnson was identified as the owner of the vehicle, and was then identified by Detective Lynn from a photo array as the driver of the vehicle. During the ensuing investigation, Johnson provided police with the name of Ray Lucas as the man who had attempted the burglary at issue prior to the vehicle chase. Lucas photo was subsequently shown to Lt. Waite and Det. Lynn, and both failed to recognize Lucas as the driver of the vehicle that had struck one officer and eluded police. 1 Captioned defendants City of Uniontown, PA and its Police Department, Officer John Doe of the Uniontown Police Department, and its Chief, were a part of the instant action that was previously severed herefrom and sent to Fayette County, which action is not in dispute herein. 2. On April 1, 1999, McKeesport Police arrested Johnson and charged him with aggravated assault, fleeing police, and driving without a license. Johnson asserted an alibi defense, claiming that he had been hospitalized on the date of the incident. On March 9, 2000, however, a guilty plea to Johnson s charges was entered before the Trial Court, and Johnson was subsequently sentenced and imprisoned. Thereafter, Johnson filed the instant Complaint in the Court of Common Pleas of Fayette County, which was subsequently transferred to the Trial Court on October 19, 2000. The Defendants filed an Answer and New Matter, asserting in material part that Johnson could not claim damages from his arrest and incarceration due to Johnson s guilty plea in the underlying criminal matter. In his Reply to New Matter, Johnson asserted that it was not he that had been present and entered the guilty plea before the Trial Court, again alleging that he had been confined to a hospital on the date that the plea was entered. Various pleadings by the parties ensued, including the Defendants Summary Judgment Motion (Motion) at issue presently. Johnson, still incarcerated, filed a brief in opposition to the Defendants Motion. The Trial Court heard the Defendants oral argument on their Motion without Johnson present, due to his incarceration. The Trial Court then permitted Johnson to file any needed additional briefs, including an amended brief in opposition that Johnson did in fact file, in response to any issue raised at that argument. 3. By order dated February 12, 2007, the Trial Court granted the Defendants Motion, and entered judgment in favor of the Defendants and against Johnson. Johnson timely appealed to this Court from the Trial Court s order.2,3 Pursuant to Pennsylvania Rule of Civil Procedure No. 1035.2,4 any party may move for summary judgment, in whole or in part, if no genuine issue of material fact as to a necessary element of the cause of action or defense exists if, after the completion of discovery relevant to the motion, the non-moving 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 that in a jury trial would require the issues to be submitted to a jury. O'Rourke v. Pennsylvania Department of 2 By orders dated March 13 and March 21, 2007, Johnson was permitted to pursue his appeal in forma pauperis. 3 Our scope of review of an order granting summary judgment is plenary. Metropolitan Edison Co. v. Reading Area Water Authority, 937 A.2d 1173 (Pa. Cmwlth. 2007). This Court will only disturb a trial court's order granting summary judgment where there has been an error of law, or a clear abuse of discretion. Id. 4 Pa.R.C.P. No. 1035.2 reads: 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. 4. Corrections, 730 A.2d 1039 (Pa. Cmwlth. 1999) (citation omitted). Summary judgment may be granted only in cases where the right is clear and free from doubt, and the moving party bears the burden of proving the non-existence of any genuine issue of material fact. Id. The record must be viewed 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. Id. A party seeking to avoid summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions, or affidavits that there is a genuine issue for trial. Id. We first note that Johnson's stated Questions Presented, within his brief to this Court, intermingle the same arguments within three stated issues. In addition, Johnson generally develops arguments within the brief's Arguments section in a manner that does not consistently correspond to the stated Questions. However, Johnson's brief as a whole does enable our effective appellate review, and as a pro se5 party, we will address Johnson's developed arguments as reorganized and reordered herein in the interests of clarity. 5 While this Court is sympathetic to the disadvantage pro se parties may potentially face in pursuing their claims, we emphasize that it is axiomatic that the fact that Johnson decided to represent himself herein does not excuse him from failing to follow the rules of civil and/or appellate procedure. The right of self-representation is not a license ... not to comply with relevant rules of procedure and substantive law. Green v. Harmony House North 15th Street Housing Association, Inc., 684 A.2d 1112, 1114 (Pa. Cmwlth. 1996) (citing to Faretta v. California, 422 U.S. 806, 834 n.46 (1975)). Any pro se litigant must to some extent assume the risk that his lack of legal training will prove his undoing. Id. 5. First, Johnson argues that the Trial Court erred in granting the Motion by determining the parties' credibility in the summary judgment proceedings. Johnson asserts that the Trial Court discredited Johnson's medical records and reports, failed to consider certain "evidence" and assertions of Johnson's selection as referenced in his pleadings in this matter, and credited as credible - and relied upon - the Defendants' affidavits and "oral testimony" supplied by the Defendants to the Trial Court in their oral argument on the Motion. Johnson correctly asserts that the credibility of testimony - including testimonial and affidavit testimony - is a matter solely for the fact finder, and therefore the determination of such credibility is an improper basis upon which to establish a lack of a genuine issue of material fact, precluding summary judgment. Department of Transportation v. UTP Corp., 847 A.2d 801 (Pa. Cmwlth. 2004). Although Johnson fails to identify any particular portion of the Trial Court's opinion expressing reasoning relying upon a credibility determination made thereby in disposing of the Motion at issue, Johnson's argument on this point must fail in that any implied credibility determination within the Trial Court's granting of the Motion is irrelevant; Johnson has failed to satisfy his burden, as a matter of law, in responding to the Motion at issue, notwithstanding any credibility issues. We emphasize that this Court may affirm on grounds other than that relied upon by a trial court, where such grounds are manifest in the record. Smithfield v. Kessler, 882 A.2d 17 (Pa. Cmwlth. 2005), petition for allowance of appeal denied, 588 Pa. 761, 903 A.2d 539 (2006). 6. Each party to a summary judgment motion faces a certain burden of production, and of proof. As noted above, the moving party bears the burden of advancing evidence proving the non-existence of any genuine issue of material fact. O'Rourke. In the instant matter, Johnson's entire cause of action is predicated on the asserted material fact6 that he was falsely arrested for the criminal acts at issue in the prior criminal proceedings that underlie Johnson's Complaint. In the Defendants' Answer and New Matter, and in their Motion, the Defendants asserted that the material fact that Johnson appeared before the Trial Court and plead guilty to those criminal acts constitutes a defense to Johnson's claims and precludes the instant suit. In his Reply to New Matter, and in his response to the Motion, Johnson asserts the material fact that it was not he who appeared before the Trial Court to enter the guilty plea, but rather some other, unidentified person who appeared and impersonated Johnson and falsely entered the plea, and that the resolution of this fact is the exclusive province of the jury, precluding summary judgment. In satisfaction of their burden, the Defendants support the Motion with the attachment thereto, inter alia, of records from the underlying criminal proceedings in the Trial Court, including records of the date that the guilty plea in this matter that was entered by a party that the Trial Court implicitly recognized as Johnson.7 Crucially, those records include certification from the clerk of courts. 6 A fact is material if it directly affects the disposition of the case. Allen v. Coulatti, 417 A.2d 1303 (Pa. Cmwlth. 1980). 7 See Certified Record (C.R.) at 26. 7. In opposition to the Defendants production of evidence establishing that Johnson did indeed plead guilty, Johnson argues that the Trial Court erred in relying exclusively upon the Defendants' testimony - in the form of affidavits and/or depositions - to establish the absence of that genuine issue of material fact herein, in violation of the long-standing rule of Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932) (oral testimony, through affidavits or depositions, is insufficient to establish the absence of a genuine issue of material fact; no matter how clear and indisputable such proof may appear, it is the province of the jury to decide the credibility of the witnesses); O'Rourke. Johnson's argument on this point must fail: the Trial Court criminal proceeding records, as certified by that court, establish the entry of a plea by Johnson without resort to oral testimony, and specifically without resort to affidavits or depositions as prohibited under the Nanty-Glo rule. As the Explanatory Note to Pa.R.C.P. No. 1035.2 concisely quotes: 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. (citing to Godlewski v. Pars Mfg. Co., 597 A.2d 106 (Pa. Super. 1991)). As such, the Defendants' production of certified court records establishing Johnson's entry of a guilty plea satisfies their initial burden under the Motion, and those records are not oral testimony as defined by Nanty-Glo and its progeny. Nanty-Glo; O'Rourke. 8. We next turn to the burden placed upon Johnson in responding to the Defendants Motion. To withstand a motion for summary judgment, a non-moving party must produce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor; the failure to produce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wenger v. West Pennsbro Township, 868 A.2d 638 (Pa. Cmwlth.), petition for allowance of appeal denied, 586 Pa. 732, 890 A.2d 1062 (2005). Again, the explanatory Note to Pa.R.C.P. No. 1035.2 directly addresses the burden, in this instance on Johnson, sub judice: Note: Rule 1035.2 sets forth the general principle that a motion for summary judgment is based on an evidentiary record which entitles the moving party to judgment as a matter of law. The evidentiary record may be one of two types. . . Under subparagraph (2), the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury. The motion in this instance is made by a party who does not have the burden of proof at trial and who does not have access to the evidence to make a record which affirmatively supports the motion. To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action or defense. (Emphasis added.) In all of the argument, as a whole, proffered by Johnson within his Complaint, within his Reply to New Matter, within his brief to this Court, and dispositively, on this issue - within his responses to the Defendants Motion, 9. Johnson relies only upon selected portions of proposed testimony,8 upon various medical records and correspondence, upon parole reports and related records, upon unsworn and uncertified select portions of police reports, and upon an unsigned attorney affidavit. None of these supporting materials are sworn and/or certified, and as such, are insufficient as a matter of law in satisfying Johnson's burden in opposition to the Defendants Motion. Unsworn documents and exhibits that fail to comply with the procedural rules governing the record in summary judgment motions may not be considered part of the record for purposes of summary judgment. Pa.R.C.P. Nos. 1035.1, 1035.2-1035.4; see also Overbeck v. Cates, 700 A.2d 970 (Pa. Super. 1997) (unsworn materials not to be considered part of the record for summary judgment purposes); Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602, (Pa. Super. 1997) (briefs are not part of official record, and thusly party opposing summary judgment cannot supplement record to show why summary judgment should not be granted merely by attaching material to its opposition brief); Irrera v. Southeastern Pennsylvania Transportation Authority, 331 A.2d 705 (Pa. Super. 1974) (unsworn party-labeled "exhibits" could not be considered as part of record on motion for summary judgment). Additionally, where the nonmoving party to a summary judgment motion bears the burden of proof on an issue - as does Johnson, in the instant 8 We have held that the alleged prospective testimony of witnesses is insufficient as a basis to deny summary judgment. Harris v. Hanberry, 613 A.2d 101 (Pa. Cmwlth. 1992). If witnesses were essential to oppose the Defendants' Motion, Johnson should have taken the necessary affidavits referred to in Pa.R.C.P. No. 1035(e), and/or requested a continuance to secure sworn, signed affidavits, or to take depositions. Id. 10. matter - he may not rely solely upon his own pleadings or answers in order to survive summary judgment. Manzetti v. Mercy Hospital of Pittsburgh, 565 Pa. 471, 776 A.2d 938 (2001). Accordingly, Johnson's personal sworn affidavits as contained within the record, including those attached to his responses to the Defendants' Motion, are insufficient to establish the question of material fact at issue, and on their face are insufficient to the extent that they purport to certify Johnson's numerous otherwise uncertified and unsworn exhibits. As our Supreme Court has emphasized: The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions. . . That trial by testimonial affidavit is prohibited cannot be emphasized too strongly . Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 175, 553 A.2d 900, 902 (1989) (citation omitted). Bold, unsupported assertions of conclusory accusations cannot create genuine issues of material fact. See Brecher v. Cutler, 578 A.2d 481 (Pa. Super. 1990). As the foregoing analysis establishes, the Defendants certified, non- testimonial evidence of record in support of their Motion establishes that Johnson entered a plea of guilty to the underlying criminal charges. Johnson has failed to produce any properly sworn or certified evidence of record in opposition to the Defendants' evidence. Accordingly, under the respective burdens of the parties in this matter, and in consideration of the record as constituted in satisfaction thereof, the Defendants are entitled to summary judgment. Manzetti; Wenger. Although 11. our analysis founds its basis in grounds not expressly articulated by the Trial Court in its opinion in this matter, these grounds are evident within the record, and the Trial Court therefore did not err in its disposition of the Motion at issue. Smithfield. We emphasize that our foregoing analysis is dispositive in this matter. However, notwithstanding the fact that Johnson s remaining arguments are without merit in relation to our disposition herein, we will briefly address them. Johnson next argues that the Trial Court erred in relying upon a prior unrelated criminal action9 in which Johnson asserted the same defense that forms the operative material fact herein - namely, that some unidentified imposter appeared in those proceedings and falsely entered a guilty plea while posing as Johnson. Although the Trial Court's opinion does indeed reference this prior attempt by Johnson to employ the same defense, and also references other evidence argued by Johnson to be insufficient to support the grant of the Motion - most notably, fingerprint evidence on Johnson's own car at issue in the underlying criminal proceedings - our foregoing analysis stands, dispositively, independently of these factors, and we will not disturb the grant of the Motion on these grounds. Next, Johnson asserts that the Trial Court's consideration and disposition of the Motion constituted an impermissible ex parte action in that the Defendants were permitted to orally argue their Motion before the Trial Court. Johnson, however, was able to respond to the Motion, and to the Defendants oral 9 Johnson emphasizes that the opinion in this prior criminal action was not reported. 12. argument, only by written brief due to his incarceration.10 We disagree with Johnson s characterization of this receipt of argument by the Trial Court as ex parte. Johnson does not dispute, as the Trial Court notes, that he was accorded multiple opportunities to respond to any and all argument raised by the Defendants in their argument before the Trial Court, which opportunities Johnson availed himself of in the form of at least two written responses. Further, Johnson does not allege that he sought, or was denied, any additional opportunity to respond to any arguments advanced by the Defendants. Similarly, Johnson does not allege that the Trial Court considered - or that the Defendants advanced - any arguments, evidence or issues that he was not afforded an opportunity to fully address. As such, by definition, we cannot agree with Johnson's characterization of the Trial Court's combined oral and written receipt of argument on the Motion as ex parte under the instant facts. We reiterate that Johnson's insistence on pursuing this matter without the assistance of counsel - especially considering his unavailability to fully participate in the proceedings during his period of 10 We note that Johnson, through the arguments presented in his brief, repeatedly refers to the Defendants presentation of unspecified "evidence" and "testimony" during their oral argument on the Motion. However, Johnson fails to articulate any specific "evidence" or testimony" accepted or heard by the Trial Court, and our review of the record reveals none. We emphasize that statements made in oral argument neither generally constitute evidence or testimony, nor specifically constitute any discernable basis for the Trial Court's disposition herein. Finally on this point, we stress that Johnson has failed to comply with Rule of Appellate Procedure 2132 in failing to specifically reference those specific portions of the record which he believes supports his assertions. [I]t is incumbent upon the appellants, not the Court, to specifically correlate the allegations of error to the record and the exhibits. Stefanovits v. Magrino, 583 A.2d 841, 843 (Pa. Cmwlth. 1990). 13. incarceration - was a voluntary assumption of the risks associated with that lack of representation. Green. We detect no unfairness or loss of opportunity suffered by Johnson under the Trial Court's address of the Motion, and Johnson is unable to articulate any such loss of opportunity or actual prejudice suffered. Thusly, we reject Johnson's argument on this point. Finally, Johnson generally asserts that the Trial Court retaliated against him for the filing of his Complaint, and denied him access to the court. In support of these vague arguments, Johnson merely repeats the identical arguments advanced by him in support of his other stated issues. Johnson fails to articulate any particular acts of retaliation, and fails to identify any denial of access to the Trial Court. Johnson fails to develop these arguments in any sense whatsoever, and fails to articulate any sworn or certified evidence supporting these general arguments. As we have addressed Johnson's specific arguments in our foregoing analysis, we will not entertain Johnson's undeveloped, general assertions of retaliation and denial of access, which arguments have no basis within the record. Accordingly, we affirm. _________________________________ JAMES R. KELLEY, Senior Judge 14. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald A. Johnson, Appellant v. City of Uniontown, PA and its Police Dept., Officer John Doe of the Uniontown Police Dept., and its Chief, City of McKeesport, and its Police Dept., Chief Tom Carter, Captain Eugene Riazzi, Det. Glenn Lynn, Lt. White, Det. Green, Det. John Doe, (in charge of case) (All of the above-named defendants are sued in their individual and official capacities) : : : : : : : : : : : : : : : : : No. 494 C.D. 2007 ORDER AND NOW, this 19th day of March, 2008, the order of the Court of Common Pleas of Allegheny County dated February 12, 2007, at No. G.D. 0017614, is affirmed. _________________________________ JAMES R. KELLEY, Senior Judge
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