IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tahir Gardner, :

Appellant :

:

v. :

:

Thomas Carter, Jon Fustine, Nicholas :

Ishman, Terry Wealand, Robert Yost : No. 413 C.D. 2020

and Harrisburg Police Bureau : Submitted: September 9, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: March 1, 2023

Tahir Gardner (Appellant) appeals the March 26, 2020 order (Trial 

Court Order) of the Court of Common Pleas of Dauphin County (trial court) granting 

summary judgment in favor of Terry Wealand (Officer Wealand) and Jon Fustine 

(Officer Fustine) (collectively, Appellees)1regarding Appellant’s Complaint that 

raised claims of false imprisonment and violation of the Fourth Amendment of the 

United States Constitution against Appellees. Upon review, we vacate the Trial 

Court Order and remand the matter for further proceedings.

1 Appellant originally filed separate appeals as to each Appellee in this matter, the second 

appeal being docketed at No. 414 C.D. 2020. However, this Court dismissed the second appeal as 

duplicative by order dated July 21, 2020. 
2

I. Background and Procedural Posture

On January 28, 2012, police arrested Appellant and charged him with 

various crimes2related to an incident involving a motor vehicle traffic stop during 

which the vehicle’s driver fled the scene and was pursued by police. The incident

ultimately concluded with Appellant’s apprehension and identification by the 

officers involved. On September 11, 2012, nine months after his arrest, Appellant 

was released from custody after DNA testing on items of clothing recovered from 

the scene of the incident did not match Appellant’s DNA. The prosecution 

ultimately nolle prossed the charges against Appellant on February 25, 2013.

Appellant filed the Complaint on October 3, 2014, and Appellees filed 

their “Answer of Defendants to Plaintiff’s Complaint With New Matter Affirmative 

Defenses” on May 29, 2015. The parties conducted the depositions of Appellant and 

a defense witness on August 16, 2016, and January 19, 2017, respectively. 

Thereafter, on March 1, 2017, Appellees filed “Defendants’ Motion for Summary 

Judgment” (Summary Judgment Motion), arguing, inter alia, that Appellees were 

entitled to immunity because they had probable cause to arrest and charge Appellant. 

Appellant filed his “Response to Defendants’ Motion for Summary Judgment” on 

April 14, 2017. 

On June 4, 2019, the trial court granted the Motion for Summary 

Judgment as it applied to the other defendants in this matter3 but not as to Appellees. 

2 Aggravated assault, reckless endangerment, carrying a firearm without a license, 

possession with intent to distribute heroin, possession of drug paraphernalia, escape, receiving 

stolen property, criminal mischief, and traffic offenses.

3 The trial court granted summary judgment as to the other defendants named in the 

Complaint – Thomas Carter, Nicholas Ishman, Robert Yost, and the Harrisburg Police Bureau. 

See Trial Court Memorandum Opinion and Order dated June 4, 2019 (Trial Court June 2019 
3

See Trial Court Memorandum Opinion and Order dated June 4, 2019 (Trial Court 

June 2019 Opinion) at 4-6. Instead, the trial court scheduled an evidentiary hearing 

to address the “remaining factual and legal issues” pertaining to Appellees. See Trial 

Court June 2019 Opinion at 6. The trial court explained this decision thusly:

Whether or not evidence of willful misconduct exists to 

submit the matter to [a] jury is a matter for the [c]ourt. At 

oral argument, counsel presented statements of fact 

regarding the observations of the officers and of 

[Appellant], which facts did not appear in the record. [The 

trial court] therefore ordered that counsel file deposition 

transcripts. Counsel filed [Appellant’s] transcript, but 

communicated to [the trial court] by letter that no 

depositions of officers have been taken. It is necessary for 

[the trial court] to take evidence on those matters in order 

to resolve the issues before us.

Trial Court June 2019 Opinion at 5.

The trial court conducted the hearing on October 9, 2019. Thereafter, 

based on the evidence adduced at the October 2019 hearing,

4

the trial court 

determined that Appellees were entitled to immunity because probable cause to 

arrest Appellant existed at the time of the incident. See Trial Court Memorandum 

Opinion and Order dated March 26, 2020 (Trial Court March 2020 Opinion) at 7-

11. Therefore, on March 26, 2020, the trial court granted the Summary Judgment 

Opinion) at 6. Appellant does not appeal that grant of summary judgment as to those defendants 

in the instant matter.

4

See Trial Court Memorandum Opinion and Order dated March 26, 2020, at 2-7.
4

Motion. See Trial Court March 2020 Opinion at 11. Appellant timely appealed to 

this Court.5

II. Issues

On appeal,6 Appellant claims that the trial court erred in granting 

summary judgment to Appellees because outstanding issues of fact exist as to 

whether Appellees had probable cause to arrest Appellant. See Appellant’s Br. at 6 

& 17-22. Specifically, Appellant alleges that the question of whether there was glass 

on Appellant’s sweatshirt at the time of his arrest remains outstanding and disputed 

and therefore precludes a grant of summary judgment in Appellees’ favor. See id.

at 6 & 16-17. Additionally, Appellant claims the trial court erred in granting 

summary judgment to Appellees based on immunity because Appellees acted 

unlawfully. See id. at 6 & 22-23.

III. Discussion

A motion for summary judgment is properly granted if “there is no 

genuine issue of any material fact as to a necessary element of the cause of action.” 

Pa.R.Civ.P. 1035.2(1). “Summary judgment may be entered only when, after 

examining the record in the light most favorable to the non-moving party, and 

resolving [] all doubts as to the existence of a genuine issue of material fact against 

the moving party, the moving party is clearly entitled to judgment as a matter of 

law.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Pursuant to 

5 Because April 25, 2020, the 30th day after the filing of the Trial Court Opinion, fell on a 

Saturday, Appellant timely filed his notices of appeal in this matter on the following Monday, 

April 27, 2020. See Pa.R.A.P. 903.

6

“An order of a trial court granting summary judgment may be disturbed by an appellate 

court only if the court committed an error of law []; thus, [a reviewing court’s] standard of review 

is de novo, and [the] scope of review is plenary.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 

A.2d 639, 647 (Pa. 2009) (internal citations omitted).
5

Pennsylvania Rule of Civil Procedure 1035.1, the record in a motion for summary 

judgment includes any: “(1) pleadings, (2) depositions, answers to interrogatories, 

admissions and affidavits, and (3) reports signed by an expert witness that would, if 

filed, comply with [Pa.R.Civ.P. 4003.5(a)(1)], whether or not the reports have been 

produced in response to interrogatories.” Pa.R.Civ.P. 1035.1.

Here, following the filing of the Summary Judgment Motion, the trial 

court ruled on the motion as to the other defendants, for whom no genuine issues of 

material fact remained, granting summary judgment as to those defendants. 

However, the trial court observed that certain factual and legal issues remained 

outstanding as to Appellees, to wit: the issue of probable cause for Appellant’s arrest. 

See Trial Court June 2019 Opinion at 5. At that time, because the issue of probable 

cause was a necessary element of Appellees’ immunity defense, the trial court could 

not have granted summary judgment as to Appellees based on the existing record 

and should have denied the Summary Judgment Motion. See Pyeritz. 

Instead, the trial court conducted a hearing and took evidence in the 

form of Appellees’ testimony on the issue.7 Thereafter, in consideration of this 

testimony, the trial court determined that Appellees had probable cause to arrest 

Appellant and granted summary judgment in favor of Appellees. In so doing, the 

trial court created and considered evidence that did not exist and was not part of the 

record at the time the Appellees filed the Summary Judgment Motion. In effect, the 

trial court conducted a bifurcated bench trial on the issue of probable cause for the 

purpose of deciding the Summary Judgment Motion in a matter where Appellant had 

requested a jury trial. See Complaint at 7 (pagination supplied). This was error. 

Pennsylvania’s Rules of Civil Procedure do not allow for such proceedings at the 

7 The trial court also took testimony from Robert Yost at the hearing.
6

summary judgment stage and instead expressly limit the record upon which a motion 

for summary judgment is to be decided to existing pleadings, depositions, answers 

to interrogatories, admissions and affidavits, and expert reports. See Pa.R.C.P. No. 

1035.1. In this case, Appellees could have taken further depositions and submitted 

the transcripts thereof in anticipation of filing their Summary Judgment Motion, but 

did not. As a result, the proper extent of the summary judgment record was the 

pleadings and discovery that existed at the time of the filing of the Summary 

Judgment Motion, including the transcripts of the completed depositions of 

Appellant and Appellant’s witness. Therefore, the trial court erred by conducting 

the October 9, 2019 hearing and then relying on the evidence adduced at that hearing, 

which should not have formed part of the summary judgment record, to decide the 

Summary Judgment Motion as to Appellees. 

We appreciate that probable cause is a question of law and that 

Appellant’s case may ultimately fail for the reasons the trial court discussed in its 

opinions. However, regardless of whether the outcome of this matter will ultimately 

be the same as the result arrived at by the trial court, the trial court erred by taking

testimony when a jury trial was requested and then considering that testimony, which 

again was not part of the record upon the filing of the Summary Judgment Motion,

in determining that motion. Accordingly, we vacate the trial court’s order and 

remand the matter for further proceedings.

IV. Conclusion

For these reasons, we vacate the Trial Court Order and remand the 

matter to the trial court.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tahir Gardner, :

Appellant :

:

v. :

:

Thomas Carter, Jon Fustine, Nicholas :

Ishman, Terry Wealand, Robert Yost : No. 413 C.D. 2020

and Harrisburg Police Bureau :

O R D E R

AND NOW, this 1st day of March, 2023, the March 26, 2020 order of 

the Court of Common Pleas of Dauphin County is VACATED and the matter is 

REMANDED to the trial court for further proceedings.

Jurisdiction relinquished.

__________________________________

CHRISTINE FIZZANO CANNON, Judge