Pyeritz v. Com.

956 A.2d 1075

Dawn A. PYERITZ, Administratrix of the Estate of Daniel E. Pyeritz, Deceased, and Dawn A. Pyeritz, parent and natural guardian of Nicole L. Pyeritz, a minor, and Christopher E. Pyeritz, a minor, and Dawn A. Pyeritz, an individual, in her own right, Appellants v. COMMONWEALTH of Pennsylvania, State Police Department of the Commonwealth of Pennsylvania, Col. Jeffrey B. Miller, Commissioner, Pennsylvania State Police, Pennsylvania State Police Troopers James Custer and Daniel Ekis, Pennsylvania State Police Corporals James Caccimelio and Andre Stevens and Pennsylvania State Police Lieutenant Charles Depp.

No. 1592 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 6, 2008.

Decided September 15, 2008.

Michelle H. Lally, Monroeville, for appellants.

Kemal Alexander Mericli, Sr. Deputy Attorney General and John G. Knorr, III,

Chief Deputy Attorney General, Pittsburgh, for appellees.

BEFORE: BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, JAMES R. KELLEY, Senior Judge.

OPINION BY Judge SMITH-RIBNER.

Appellants appeal from an order of the Court of Common Pleas of Fayette County that granted the motion for summary judgment filed by Appellees in an action brought by Dawn A. Pyeritz (Pyeritz) arising out of the destruction of evidence in the custody of the Pennsylvania State Police that Pyeritz claimed was crucial to a products liability action that she filed against manufacturers of sporting goods as a result of the death of her husband Daniel E. Pyertiz (Decedent). Pyeritz questions whether the trial court erred in granting summary judgment to Appellees when genuine issues of material fact exist; whether the personal property exception to sovereign immunity applies to the destruction of evidence by the State Police; whether the State Police were bailees of the personal property such that they are liable for negligent destruction of evidence; and whether Pyeritz has stated a cause of action under Pennsylvania law for the spoliation of evidence by a third party.

I

Upon consideration of the complaint and the State Police's objection thereto, the trial court found that Decedent embarked on a hunting excursion in the early morning hours of October 30, 2001. He was forty-eight years old, the father of two minor children and a high-school graduate with sixteen years of experience as a baggage handler for U.S. Airways, earning close to $50,000 per year. State Trooper Daniel Ekis testified that on the day in question Decedent left his brother's home near Markleysburg very early in the morning and drove a four-wheel drive vehicle into the woods, and he climbed to a tree stand that he had previously built in order to hunt. He did not return, and that evening a search party found him dead at the base of the tree. A black fabric belt with a frayed end was around his waist, and the matching portion of the belt was still secured around the tree, sixteen to eighteen feet above the ground. The State Police were summoned, and Trooper Ekis was assigned to investigate. For purposes of the investigation the two pieces of the belt were logged into the evidence room at the barracks in Uniontown.

Counsel for Pyeritz communicated with Trooper Ekis in November 2001, stating that due to the extreme need to prevent spoliation of evidence counsel might ask the State Police to retain the evidence, even after an inquest. Trooper Ekis advised counsel that the pieces of the belt were evidence and could not leave State Police custody until after the inquest. An inquest was held before a coroner's jury on November 27, 2002, which determined that the death was accidental. Counsel requested Trooper Ekis to keep the pieces of the belt in the evidence room to preserve the chain of custody and to assure their safety; he returned the pieces to the evidence room on November 27 and noted on a supplemental investigation sheet that "investigation will remain open pending disposition of evidence." When Pyeritz attempted to retrieve the evidence on August 19, 2003, she was informed that it had been destroyed on July 14, 2003.

On September 11, 2003, Pyeritz filed a suit against manufacturers Game Tracker and Foggy Bayou, alleging that the belt was defective and that it was manufactured by either of the two companies or with parts from both of them. The only physical evidence available to the plaintiffs was the evidence boxes bearing certain defendants' names and photographs of the belt. Pyeritz commenced her action against the State Police in October 2003; in November she settled the action against the manufacturers for $200,000. Pyeritz alleged that the State Police negligently failed to preserve evidence necessary for her third party claim and that the negligence substantially prejudiced her claim and forced her to settle for less than what she would have received had the evidence not been destroyed. She sought compensatory and punitive damages. The State Police filed an answer with new matter and then a motion for summary judgment.

In their motion the State Police first asserted that Pennsylvania law does not recognize a separate cause of action for negligent spoliation of evidence in existing or probable civil cases but instead permits summary judgment or an adverse inference as a sanction on spoliation grounds; second, there was no legally binding written agreement; third, if Pyeritz was alleging breach of contract the Board of Claims would have exclusive jurisdiction, although the statute of limitations on such a claim had expired; fourth, even if an oral agreement was made it was a gratuitous undertaking to render services under the Restatement (Second) of Torts § 323, which requires a showing of physical harm; fifth, an action could not be maintained because the damages could not be assessed or determined; sixth, the question of any sanctions was irrelevant because the case had settled and also a plaintiff must prove that the loss of evidence substantially prejudiced her case; and, finally, even if spoliation of evidence were a recognized tort and Pyeritz could prove damages, the cause of action would fail as it does not fall within the personal property exception contained in Section 8522(b)(3) of the Judicial Code, 42 Pa.C.S. § 8522(b)(3).

The trial court first noted Pa. R.C.P. No. 1035.2, which provides that after the 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 relevant discovery, including the production of expert reports, the adverse party who would 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 be required to be submitted to the jury. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, and all doubts as to the existence of a material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992). Summary judgment may be entered only in those cases that are clear and free of doubt. Id.

The trial court addressed Pyeritz' contention that her action was not barred by sovereign immunity because the action fell within the personal property exception. An express waiver to the general rule of sovereign immunity for negligent acts is provided in 42 Pa.C.S. § 8522(b)(3), which states that liability for a Commonwealth party may be imposed in claims for damages caused by: "The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency...." Citing Bufford v. Pennsylvania Department of Transportation, 670 A.2d 751 (Pa.Cmwlth. 1996), and Commonwealth, Department of Environmental Resources v. Myers, 135 Pa.Cmwlth. 526, 581 A.2d 696 (1990), the trial court noted the well-settled rule that sovereign immunity is waived if personal property in the Commonwealth's custody actually causes the injury giving rise to the cause of action; however, if mere mishandling of the property causes injury, sovereign immunity is not waived. Pyeritz did not assert that the belt caused her injury; rather, it was the mishandling of the evidence. The trial court held that Pyeritz' allegations did not fall within the exception.

Next, the trial court rejected Pyeritz' claim that her evidence raised a genuine issue of material fact as to whether there was a bailment for her benefit and whether destruction of the bailed items was grossly negligent. In Pennsylvania "`[a] bailment is a delivery of personalty for the accomplishment of some purpose upon a contract, express or implied, that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, otherwise dealt with according to his directions or kept until he reclaims it.'" Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996) (quoting Smalich v. Westfall, 440 Pa. 409, 413, 269 A.2d 476, 480 (1970) (citation omitted)). The relationship is contractual, but the belt was not delivered to the State Police pursuant to a contract.

Even if a determination of disputed facts in Pyeritz' favor were seen as creating a bailment, such facts would not be material, and only disputes as to material issues of fact bar summary judgment. Pierce v. Pennsylvania Board of Probation and Parole, 46 Pa.Cmwlth. 507, 406 A.2d 1186 (1979). A fact is material only if it directly affects the disposition of the case. Allen v. Colautti,...