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) (collectivel y, Appellees) 1 regarding Appellant’s C omplaint 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 furt her 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 crimes 2 related 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, n ine months after his arrest, Appellant
was released from custody after DNA testing on items of clothing recovered from

the scene of the incident d id 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 matter 3 but not as to Appellees.

2 A ggravated assault, reckless endange rment , 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 T he trial court granted summary judgment as to the other defendants named in the C omplaint

– Thomas Carter, Nichol as Ishman, Robert Yost, and the Harrisburg Police Bureau. See Trial Court Memorandum Opinion and Order dated June 4, 2019 (Trial Court June 20193

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. [T he 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 alleg es that the question of whether there was glass on Appellant’s sweatshirt at the time of his arrest remains outstanding and disputed

and therefore preclude s a grant of summary judgment in Appellees’ favor. Se e id.

at 6 & 16

- 17. Additionally, Appellant cl aims 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 mater ial 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 30 th day after the filing of the Trial Court Opinion, fell on a Saturday, Appellant timely filed his notices of appeal in this matter on t he 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 i n 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 t he 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 rema ined, granting summary judgment as to those defendants.
However, the trial court observed that certain factual and legal issues remained
outstanding as to Appellee s, to wit : the issue of probable cause for Appellant’s arrest.

See Trial Court June 2019 Opinion at 5. At that time, b ecause the issue of probable
cause was a necessary element of Appellees ’ immunity defense, the trial court could
not have granted summary judgmen t as to Appellees based on the existing record

and should have denied the Summary Judgment Motion. See Py e ritz

.

Instead, the trial court conducted a hearing and took evidence in the form of Appellees’ testimony on the issue. 7 Thereafter, in considera tion 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 o f 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 i nstead expressly limit the record upon which a motion
for summary judgment is to be decided to exi s ting 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 deposition s 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 Summa ry Judgment Motion , including the transcripts of the completed depositions of
Appellant and Appellant’s witness. Therefore, t he trial court erred by conducting
the October 9, 2019 hearing and then rel ying on t he evidence adduced at th at hearing

, which sho uld 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 testim ony, 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 F IZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF P ENNSYLVANIA

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 , 20 2 3 , 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 CANN ON, Judge