IN THE UNITED STATES DISTRICT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CANDACE RAY : CIVIL ACTION NO. 02-CV-4382

1350 High Avenue :

Roslyn, PA 19001 :

:

v. :

:

ABINGTON TOWNSHIP :

1176 Old York Road :

Abington, PA 19001 :

and :

CHIEF OF POLICE WILLIAM KELLY :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER NISBET, S. :

Badge No: 2933 :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER J. KING :

Badge No: 2530 :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER BRUCE HASLAM :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER MATZ :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER RAWTZ :

1116 Old York Road :

Abington, PA 19001 :

and :

POLICE OFFICER SCHOLL :

1116 Old York Road :

Abington, PA 19001 :

and :

(defendants continued) :

POLICE OFFICER MANN :

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1116 Old York Road :

Abington, PA 19001 :

and :

ABINGTON MEMORIAL HOSPITAL :

3941 Commerce Avenue :

Willow Grove, PA 19090 :

and :

MARK SHNEA :

3941 Commerce Avenue :

Willow Grove, PA 19090 :

 

DEFENDANTS, ABINGTON MEMORIAL HOSPITAL AND

 MARK SCHNEE’S, BRIEF IN SUPPORT OF THEIR

MOTION FOR SUMMARY JUDGEMENT

Defendants, Abington Memorial Hospital and Mark Schnee, by and through their attorneys,

White and Williams, LLP, hereby file this Brief in Support of their Motion for Summary Judgment.

I. INTRODUCTION

Plaintiff has filed the instant federal and state law action against the above captioned

Defendants. The claims asserted against the Moving Defendants are based solely on Pennsylvania

state law. Plaintiff’s allegations and claims are unsupported by the undisputed facts of this case.

Therefore, the instant Motion for Summary Judgment has been filed seeking dismissal of all claims

against moving Defendants.

II. STATEMENT OF THE CASE

A. Procedural History

Plaintiff filed an Amended Complaint on March 18, 2003. Count I alleges Civil Rights

violations against the Abington Police Department. Count II alleges Civil Rights violations against

the Township of Abington. Count III alleges assault and battery against all Defendants, including

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Abington Memorial Hospital and Mark Schnee. Count IV alleges a violation of Substantive Due

Process Rights against Police Officers and the Township of Abington. Count V alleges a violation

of Civil Rights against Police Officers and Township of Abington. Count VI alleges a violation of

Privacy against Police Officers and Township of Abington. Count VII alleges a failure to train

against the Chief of Police of Abington. Count VIII alleges medical negligence against Abington

Memorial Hospital and Mark Schnee. Count IX alleges False Imprisonment against all Defendants,

including Abington Memorial Hospital and Mark Schnee. Count X alleges violations of the

Pennsylvania Mental Health Procedures Act (MHPA) against All Defendants, including Abington

Memorial Hospital and Mark Schnee. Count XI alleges Invasion of Privacy against Abington

Memorial Hospital and Mark Schnee 

Instantly, discovery is complete and this case is in the December 1, 2003 trial pool. It is now

readily apparent that, Plaintiff cannot make out a prima facie case against Moving Defendants,

Abington Memorial Hospital and Mark Schnee and that Summary Judgment in favor of Moving

Defendants is warranted.

B. Brief Factual History

Discovery in this case has revealed that on July 2, 2000, Plaintiff, Candace Ray, was arrested

by the Abington Police Department. (Exhibit “B,” N.T. 71 - 73). Plaintiff suffers from bi-polar

disorder. Plaintiff’s arrest was subsequent to her disruption of a District Court hearing and failure

to leave that premises. (Exhibit “B,” N.T. 72). Plaintiff was taken into custody. (See Exhibit “B,”

N.T.114-117). During her custody, Plaintiff, in what was viewed as a suicidal gesture by the Police,

climbed atop the sink in her cell. (Exhibit “C,” N.T. 77 - 89). Plaintiff was transported to Abington

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Memorial Hospital, while still in police custody. (Exhibit “A,” pg. 1, 3, 6, and 9).

At Abington Memorial Hospital, Plaintiff signed a Hospital Consent Form. (Exhibit “C,” pg.

2). Hospital staff administered an injection to Plaintiff. (Exhibit “C,”pg. 4). During her treatment,

Plaintiff assaulted a nurse. (Exhibit “B,” N.T. 152 - 153). Plaintiff was placed in four point

restraints with the help of police officers, for her own safety and the safety of others. (Exhibit “A,”

N.T. 148, 152 -153; Exhibit “B,” N.T. 136 - 137; Exhibit “C,” pg. 15). While in four point

restraints, Plaintiff was seen by Mark Schnee, a Crisis Clinician in the employ of Abington

Memorial Hospital. (Exhibit “B,” N.T. 133- 134; Exhibit “D,” N.T. 65). Defendant Schnee spoke

with officers in regard to the events that brought Plaintiff to the hospital. (Exhibit “D,” N.T. 50 -

52). Involuntary commitment forms were drafted by Abington Police Officers. (Exhibit “A,” N.T.

186 - 188, Exhibit “B,” N.T. 102 - 104, Exhibit “C”, pg. 20- 22 ). Plaintiff was transported from the

Abington Memorial Hospital to Montgomery County Emergency Services for an involuntary

commitment (Exhibit “D,” N.T. 67 -68).

III. ARGUMENT

A. Standards For Summary Judgment

Summary Judgment is appropriate “if the pleadings, depositions, answers to interrogatories

and admissions on file, if any, 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.” Fed R. Civ. P. 56(c). In a Motion for

Summary Judgment, the moving party need not produce evidence to disprove the opponent’s claim

but does carry the burden to demonstrate the absence of any genuine issue of material fact. Gouiss

v. Kimball, 813 F.Supp. 352, 354 (E.D. Pa. 1993) citing: Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

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In deciding a Motion for Summary Judgment, the Court must determine whether the moving

party has carried its burden of showing that there are no genuine issues of material fact. Hollinger

v. Wagner Mining Equipment Co. 667 F.2d 402, 405 (3 Cir. 1981). All reasonable inferences from rd

the presented evidence of record must be drawn in favor of the non-moving party Small v. Seldows

Stationary, 617 F.2d 992, 994 (3 Cir. 1980). A response to a property supported Summary rd

Judgment Motion may not rest upon the allegations of the pleadings but must present by affidavit

or otherwise, specific facts sufficient to create a genuine issue of material fact. Fed R. Civ. P. 56(e).

Sumshine Books Ltd. v. Temple University, 697 F.2d 90,96 (3 Cir. 1982). Summary Judgment rd

may present the District Court with the first opportunity to dispose of meritless cases under the

federal rules of notice pleading. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d

1358 (3 Cir. 1992), rehearing denied, certiorari denied 113 S.Ct. 1262. rd

B. Summary Judgment Must Be Awarded To Abington Memorial Hospital And Mark

Schnee Since Plaintiff Has Failed To Demonstrate Her Claims Against Said

Defendants.

Plaintiff has brought state law claims only against Moving Defendants, Abington Memorial

Hospital and Mark Schnee, in Counts III, VIII, IX, X, and XI of the Amended Complaint. These

include the torts of assault, battery, false imprisonment, violations of the Pennsylvania Mental

Health Act, and invasion of privacy. These will be presented to the Court in the order presented by

Plaintiff.

1. Plaintiff’s Claims For Assault And Battery Must Be Dismissed As

Plaintiff Has Failed To Demonstrate That Any Touching That Occurred

Was Not Consensual.

Count III of the Amended Complaint purports to set forth a claim for the torts of assault and

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battery during Plaintiff’s care and treatment in the Emergency Room at Abington Memorial Hospital

on July 2, 2000. As Plaintiff has failed to demonstrate that Moving Defendants acted with the

requisite intent to commit an assault or battery, or in any way performed an unlawful touching, this

Count must be dismissed. 

In Pennsylvania, “an assault occurs when one acts with the unprivileged intent to put another

in reasonable and immediate apprehension of a harmful or offensive contact and which does cause

such apprehension.” Proudfoot v. C.O.I.A. Williams, 803 F.Supp. 1048 (E.D.Pa. 1992); citing:

Cucinotti v. Ortmann, 159 A.2d 216 (Pa. 1960). Words themselves, no matter how threatening, do

not constitute and assault. Cucinotti v. Ortmann, 159 A.2d 216, 218 (Pa. 1960). The actor must be

in a position to carry out the threat immediately, and he must take some affirmative action to do so.

Cucinotti, 159 A.2d at 217.

At no time does Plaintiff aver any facts that would fit within the definition for assault.

Plaintiff avers that Mark Schnee stated that the Plaintiff should be locked up and the key thrown

away. However, this does not speak toward any touching imminent or otherwise. Plaintiff’s claim

for assault rests entirely upon spoken words which do not qualify for a cause of action in assault.

Resultantly, the claim of assault should be stricken from Plaintiff’s Amended Complaint.

In Pennsylvania, battery can be found under the following circumstances. Battery is

commonly defined as a harmful or offensive contact with another. Dalrymple v. Brown, 701 A.2d

164 (Pa. 1997). Additionally, Plaintiff must prove that there was no consent to the contact that

occurred. Barnes v. American Tobacco Company, Inc., 984 F.Supp. 842 (E.D. Pa. 1997); citing:

Levenson v. Souser, 557 A.2d 1081, 1088 (Pa. Super. 1989), alloc. denied 571 A.2d 383 (1989). 

A subjective determination of a defendant’s intent to commit battery is a requirement in

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Pennsylvania. See: In re: City of Philadelphia Litigation, 158 F.3d 723 (3 Cir. 1998). rd

Instantly, Plaintiff consented to any touching that occurred during Plaintiff’s treatment.

While at Abington Memorial Hospital, Plaintiff signed a Hospital Consent form. In relevant part

it provides:

Consent to Care: I have been informed that emergency treatment and procedures

are necessary and I authorize physicians of the Hospital’s medical staff or whomever

any of such physicians may designate to perform such emergency treatment and

procedures as any of them deem advisable. I hereby consent to the rendering of care,

..., as the named attending physicians(s) or others of the hospital’s medical staff

consider necessary.

(See Exhibit “C,” pg 2).

When the treating nurse gave Plaintiff medication to relieve her bi-polar episode, she did so

with the consent of Plaintiff. Moreover, Plaintiff did not object to the injection she received.

Plaintiff was restrained after she assaulted a nurse. (Exhibit “B,” N.T. 152 - 153) This was

done in part by police officers. (Exhibit “A,” N.T. 148, 152 -153; Exhibit “B,” N.T. 136 - 137;

Exhibit “C,” pg. 15). Plaintiff was under arrest at the time. (Exhibit “B,” N.T. 71 - 73). The actions

that were taken were for Plaintiff’s own safety and the safety of others. (Exhibit “C,” pg. 15). Mark

Schnee never touched Plaintiff and, as such, cannot be liable for any battery. (Exhibit “B,” N.T.

134). Additionally, no one restrained Plaintiff at Defendant Schnee’s request. (See Exhibit “A,”

N.T. 234). 

Any touching that occurred by Defendants, Abington Memorial Hospital and Mark Schnee,

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was either privileged or with consent. Plaintiff consented to treatment deemed advisable by the

hospital staff. Plaintiff was given an injection; she did not complain as to this touching.

Furthermore, any touching that took place during Plaintiff’s restraint was for her own safety or the

safety of those attempting to treat her. Since any alleged touching stemmed from consent or

privilege, Plaintiff’s claim for assault for assault and battery must fail, and Moving Defendants are

entitled to Summary Judgment on Count III of the Amended Complaint.

2. Plaintiff’s Claims For Negligence Must Be Dismissed As Plaintiff Has

Failed To Support This Claim With Expert Opinion Or Testimony.

Count VIII of the Amended Complaint purports to set forth a claim of negligence on the part

of Defendants, Abington Memorial Hospital and Mark Schnee. Plaintiff is alleging negligence in

regard to the medical treatment she received from the Moving Defendants during her treatment and

care in the Emergency Room at Abington Memorial Hospital on July 2, 2000. To make out a claim

for medical malpractice, a plaintiff must establish, by competent expert medical testimony, the

following:

(a) A duty was owed by the defendant to the plaintiff;

(b) A breach of the duty from the defendant to the plaintiff;

(c) That the breach of the duty was the proximate cause of or substantial factor

in bringing about the harm suffered by the plaintiff; and 

(d) damages suffered by the plaintiff were a direct result of the harm.

Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990). Pennsylvania Courts require expert medical

testimony because the complicated nature of medicine is beyond the knowledge of the average juror.

Simmons v. Mullen, 331 A.2d 892 (Pa. Super. 1974).

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Plaintiff has not offered any expert medical testimony as to alleged negligence in her

Amended Complaint. Plaintiff has failed to present any expert evidence that Defendants, Abington

Hospital or Mark Schnee, failed to fulfill any duties they had to the Plaintiff within the standard of

care. Since Plaintiff has failed to present the necessary expert evidence in support of her claims of

medical negligence, this claim must fail, and Moving Defendants are entitled to Summary Judgment

on Count VIII of the Amended Complaint.

3. Plaintiff’s Claims For False Imprisonment Must Be Dismissed As

Plaintiff Was Under Arrest At The Time She Came Under Defendant’s

Care.

Count IX of the Amended Complaint purports to set forth a claim of false imprisonment

against Moving Defendants, Abington Memorial Hospital and Mark Schnee, during Plaintiff’s care

and treatment in the Emergency Room at Abington Memorial Hospital on July 2, 2000. To make

out a claim for false imprisonment, Plaintiff must show that the Defendants intended to confine

Plaintiff within boundaries fixed by the Defendants, that the Defendants were successful in such

confinement, and that Plaintiff was either aware of the confinement or was harmed by it. Gagliardi

v. Lynn, 285 A.2d 109, 111 (Pa. 1971).

Plaintiff was brought to Abington Memorial Hospital from the Abington Police Department.

Plaintiff was brought by Abington Police Officers while still in police custody. (See Exhibit “C”

pg 1, 3, 6, and 9). Therefore, privilege exists under these circumstances. Arrest is defined as “...

taking another into custody for the actual or purported purpose of bringing the other before a court,

or otherwise securing the administration of law.” Gagliardi, 285 A.2d at 111. Privilege shields

arrest from liability if the arrest is authorized by law. Id. As such, even accepting the allegations

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of the Plaintiff as 100% true, there can be no liability for confining Plaintiff, as she was already

under arrest when she arrived at Abington Memorial Hospital.

Additionally, Plaintiff’s claim cannot succeed as she was restrained to prevent injury to

herself and others. (See Exhibit “B,” N.T. 136; Exhibit “C,” pg 15). Plaintiff assaulted a nurse who

was attempting to treat her. (See Exhibit “B,” N.T. 136). As a direct result of this incident, police

officers and hospital staff placed Plaintiff in four point restraints. (Exhibit “A,” N.T. 152 - 153).

Plaintiff’s restraint was a direct result of her assault on a nurse and was instituted to prevent further

injury to the staff of Abington Memorial Hospital and injury to Plaintiff. Additionally, with specific

respect to Defendant Schnee, Plaintiff was already restrained prior to the first time he had contact

with Plaintiff. (See Exhibit “B,” N.T. 114-117). Since arrest is a legal privilege against a claim for

false imprisonment and since the additional restraint of Plaintiff at Abington Memorial Hospital was

medically necessitated, Plaintiff’s claim for false imprisonment must fail and Moving Defendants

are entitled to Summary Judgment on Count IX of the Amended Complaint.

4. Plaintiff’s Claims For Violations Of The Pennsylvania Mental Health

Procedures Act Must Be Dismissed As Defendants Actions Do Not Rise

To The Level Of “Gross Negligence” Or “Willful Misconduct.”

Count X of Plaintiff’s Amended Complaint purports to set forth a claim that Abington

Memorial Hospital and Mark Schnee violated the Pennsylvania Mental Health Procedures Act when

caring for Plaintiff in the Emergency Room of Abington Memorial Hospital on July 2, 2000.

The Mental Health Procedures Act (MHPA) provides immunity for physicians caring for

persons under the Act, absent a showing of “gross negligence” or “willful misconduct” on the part

of the physician. 50 P.S. § 7114(a). This immunity has been found to apply to institutions, as well

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as natural persons, that provide care to mentally ill persons. Downey v. Crozer-Chester Medical

Center, 817 A.2d 517, 525 (Pa. Super. 2002); citing, Farago v. Sacred Heart General Hospital, 562

A.2d 300, 303 (Pa. 1989). 

Plaintiff has not specified the exact nature of the alleged violation of the MHPA either in her

Amended Complaint, in her testimony or through expert opinion. Notwithstanding, Plaintiff’s

treatment at Abington Memorial Hospital does not rise to the level of gross negligence or willful

misconduct. Plaintiff was restrained to prevent injury to herself and others. Additionally, Plaintiff

was given medication to help relieve her bi-polar episode. 

Plaintiff’s averments of falsification of medical records have no support in fact. The

deposition testimony of both Officer Nisbet and Officer King refute this allegation. ( Exhibit “A,”

N.T. 233- 236; Exhibit “B,” N.T.. 133 - 136). Plaintiff has failed to present a viable cause of action

under the MHPA because Abington Memorial Hospital and Mark Schnee did not engage in willful

or wanton misconduct. As such, this claim must fail, and Moving Defendants are entitled to

Summary Judgment on Count X of the Amended Complaint.

5. Plaintiff’s Claims For Invasion Of Privacy Must Be Dismissed As Plaintiff’s

Action Is Barred By The Statute Of Limitations.

Count XI of Plaintiff’s Amended Complaint purports to set forth a state law claim of

invasion of privacy against Moving Defendants, with respect to Plaintiff’s care and treatment in the

Emergency Room at Abington Memorial Hospital on July 2, 2000. Specifically, Plaintiff avers that

on July 2, 2000, Defendant Schnee disclosed private medical information to police officers in the

Emergency Room of Abington Memorial Hospital.

In Pennsylvania, an action for invasion of privacy is limited to a one year Statute of

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Limitations period. 42 Pa. R.C.P. § 5523 (West 2002). The instant action was commenced on July

2, 2002, one year beyond the allowable Statute of Limitations for this tort in Pennsylvania. Plaintiff

is beyond the statutorily defined period of relief, and Summary Judgment on Count XI of the

Amended Complaint must be granted.

Even if Plaintiff had been with the acceptable Statute of Limitations, her claim for invasion

of privacy would still fail. The invasion of privacy cause of action in Pennsylvania is actually four

separate torts. Krochalis v. Insurance Company of North America, 629 F.Supp. 1360, 1370 (E.D.

Pa. 1985), citing, Vogel v. W.T. Grant Co., 327 A.2d 133 (Pa. 1974). These include:

(a) unreasonable intrusion upon the seclusion of another,

(b) appropriation of the other’s name or likeness,

(c) unreasonable publicity given to the other’s private life, or

(d) publicity that unreasonably places the other in a false light.

Id. Instantly, the facts could only possibly lend themselves to a claim for (c), unreasonable

publicity given to another’s private life. Publication is required to make out this cause of action.

Krochalis, 629 F.Supp. at 1371. A publication under an invasion of privacy cause of action requires

the information in question to be broadcast to the public at large, or to so many persons that the

matter must be regarded as substantially certain to become public knowledge. Id. (citing Restatement

(Second) of Torts §652D comment a.).

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First, Defendant Schnee and the Defendant Officers testified that no such information was

ever disclosed. (Exhibit “A,” N.T. 233 - 234, Exhibit “B,” N.T. 133 - 134, Exhibit “C,” N.T. 65 -

66). Second, even if one believes these individuals lied under oath and such information was

disclosed, it was only publicized to two police officers. This does not meet the aforementioned

publication requirements under Pennsylvania law. 

Since the Statute of Limitations has run, and since the publicity requirement of the tort has

not been fulfilled, Plaintiff’s claim under this tort must fail, and Moving Defendants are entitled to

Summary Judgment on Count XI of the Amended Complaint. 

IV. CONCLUSION:

Plaintiff has brought numerous Pennsylvania state law claims against the Moving

Defendants. However, these claims must fail as Plaintiff has failed to prove the requisite elements

necessary to establish a prima facie case against Moving Defendants under Pennsylvania law. The

evidence in the case is clear. Plaintiff consented to her treatment at Abington Memorial Hospital.

Plaintiff’s restraint at Abington Memorial Hospital was done for her own safety and the safety of

others. Additionally, Plaintiff was in police custody when she was restrained. Any touching that

accompanied her restraint was pursuant to securing her own safety and the safety of those treating

her. No violation of the Pennsylvania Mental Health Procedures Act can be shown, as the Moving

Defendants did not act “grossly negligent” or by “willful misconduct” in their treatment of Plaintiff.

Plaintiff’s invasion of privacy claim must be dismissed as barred by the Statute of Limitations. 

Therefore, all of Plaintiff’s state law claims must fail, and Counts III, VIII, IX, X, and XI of

Plaintiff’s Amended Complaint must be stricken.

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WHEREFORE, Defendants, Abington Memorial Hospital and Mark Schnee, respectfully

request that this Honorable Court grant the instant Motion for Summary Judgment and dismiss all

claims against them.

Respectfully Submitted,

WHITE AND WILLIAMS LLP

BY: ________________________________

DAVID R. ZASLOW, ESQUIRE

COUNSEL FOR DEFENDANTS,

ABINGTON MEMORIAL HOSPITAL AND

MARK SCHNEE

1500 Lancaster Avenue

Paoli, PA 19301

(610) 251-0466

Attorney I.D. No. 77782

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