Schemberg v. Smicherko

85 A.3d 1071

2014 PA Super 23

Karl SCHEMBERG, Jr., Appellant

v.James SMICHERKO, Appellee.

Superior Court of Pennsylvania.

Argued July 9, 2013.

Filed Feb. 11, 2014.

John J. Stanzione, West Chester, for appellant.

Christine E. Munion, Blue Bell, for appellee.

BEFORE: MUNDY, OLSON and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

Karl Schemberg, Jr. (Plaintiff) appeals from the November 8, 2012 order which sustained the preliminary objections of James Smicherko (Defendant) and dismissed Plaintiff's complaint with prejudice. We reverse and remand for further proceedings consistent with this opinion.

The trial court summarized the facts and procedural history of this case as follows:

Plaintiff ... filed a complaint against [Defendant] for negligence per se and negligence. Plaintiff is a police officer for the Borough of Kutztown Police Department. Around midnight on February 17, 2012, while on duty, [P]laintiff observed [D]efendant urinating in public against the side of a private residence which [P]laintiff believed was not [D]efendant's private residence in violation of municipal ordinances and state laws. Defendant ran away to avoid [P]laintiff's investigation. [Plaintiff] pursued [D]efendant and eventually apprehended him not far from the area where he first saw [D]efendant urinating. The area of the pursuit was not well lit, and [P]laintiff fell from a height between twelve inches to fifteen inches while pursuing [D]efendant. Plaintiff sustained injuries to his right leg which required, inter alia, surgery.Defendant pled guilty to violating the Borough of Kutztown ordinance prohibiting urination in public. Plaintiff contends in his complaint that [D]efendant committed negligence per se because he violated the ordinance of Kutztown Borough and 18 Pa.C.S.A. § 5104 which reads as follows:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

Defendant filed preliminary objections to the complaint contending that [P]laintiff was not able to prove claims of negligence per se and negligence. [The trial court] agreed with [D]efendant and sustained the preliminary objections.

Trial Court Opinion, 2/21/2013, at 1–2.

Plaintiff filed a timely notice of appeal, and both Plaintiff and the trial court complied with Pa.R.A.P. 1925. Plaintiff presents the following questions for our review:

A. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE OR NEGLIGENCE PER SE BECAUSE THE STATUTE VIOLATED BY [DEFENDANT] WAS NOT INTENDED TO PROTECT A SPECIFIC GROUP OF INDIVIDUALS AS OPPOSED TO THE GENERAL PUBLIC?

B. DID THE TRIAL JUDGE ERR IN CONCLUDING THAT [PLAINTIFF] COULD NOT ESTABLISH A CLAIM FOR NEGLIGENCE PER SE OR NEGLIGENCE BECAUSE THE ACTIONS OF [DEFENDANT] WERE NOT THE PROXIMATE CAUSE OF THE INJURIES SUFFERED BY [PLAINTIFF]?

Plaintiff's Brief at 4 (trial court and suggested answers omitted; italics added).

We examine Plaintiff's questions mindful of the following standards.

Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Joyce v. Erie Ins. Exchange, 74 A.3d 157, 162 (Pa.Super.2013) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super.2011)).

This Court has summarized the applicable principles of law as follows.

Generally, to prevail in a negligence case, a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff....

The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. However, a plaintiff, having proven negligence per se cannot recover unless it can be proven that such negligence was the proximate cause of the injury suffered.

We have defined negligence per se in the following fashion:

[Negligence per se is] conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances. Pennsylvania recognizes that a violation of a statute or ordinance may serve as the basis for negligence per se. However, a court will not use a statute or regulation as the basis of negligence per se where the purpose of the statute is to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public.

In order to prove a claim based on negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;

(2) The statute or regulation must clearly apply to the conduct of the defendant;

(3) The defendant must violate the statute or regulation;

(4) The violation of the statute or regulation must be the proximate cause of the plaintiff's injuries.

Mahan v. Am–Gard, Inc., 841 A.2d 1052, 1058–1059 (Pa.Super.2003) (citations and quotations omitted).

The statute Plaintiff claims that Defendant violated provides as follows.

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

18 Pa.C.S. § 5104.

The trial court rejected Plaintiff's negligence per se claim based upon violation of this statute upon the following analysis: “[f]leeing the scene of a summary arrest, without more, does not create a substantial risk of bodily harm to a police officer. Moreover, [Defendant] did not employ any resistance which forced [Plaintiff] to overcome the resistance with substantial force.” Trial Court Opinion, 2/21/2013, at 4. We disagree.

Plaintiff's complaint does not allege merely flight to avoid arrest. Plaintiff alleged that Defendant attempted to prevent Plaintiff from performing his duty by fleeing, in the middle of the night, through a poorly-lit area of uneven terrain. Complaint, 7/13/2012, at ¶¶ 4, 6, 9. Accepting these averments as true, and giving Plaintiff the benefit of all reasonable inferences therefrom, the fact finder could reasonably conclude that Defendant's flight created a substantial risk of bodily injury. See, e.g., Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920, 925 (1989) (holding, inter alia, that Lyons' flight from deputies into a cold stream with an uneven bed created a substantial risk of bodily injury). Therefore, it is not clear and free from doubt that Plaintiff will be unable to prove that Defendant violated 18 Pa.C.S. § 5104.

Defendant argues his preliminary objections were nonetheless properly granted because the purpose of Section 5104 is not to protect officers specifically, but rather the public in general. Defendant's Brief at 4. Again, we disagree.

Clearly the purpose of the statute is to protect the group of individuals, specifically including public servants, who find themselves in the zone of danger created by the individual preventing the public servant from discharging his or her duty. That the protected group includes bystanders as well as public servants does not make it so general as to prevent the application of Section 5104 in a negligence per se claim.

For example, although the criminal code provision against underage drinking “represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age[,]” our Supreme Court held that violation of that statute constituted negligence per se. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 518 (1983) (emphasis added) (reversing trial court order sustaining preliminary objections). Similarly, the intention to protect from harm manifested in the statute at issue in this case is more specific than provisions of the motor vehicle code; yet violations of traffic laws constitute negligence per se. See e.g., Garcia v. Bang, 375 Pa.Super. 356, 544 A.2d 509, 511 (1988) (holding that passing in a no-passing zone, in violation of the vehicle code, was negligence per se ); Bumbarger v. Kaminsky, 311 Pa.Super. 177, 457 A.2d 552, 554 (1983) (“The law of this Commonwealth is clear that the failure to obey a stop sign is negligence per se ....”).

In contrast, statutes which this Court has held were too general to support a negligence per se claim involve statutes that less clearly indicate an intention to protect specific groups from specific types of harm. See, e.g., ...