The opinion of the court was delivered by: Judge John E. Jones III
This matter is before the court on the motion for summary judgment of defendant Richard Sharp. (Doc. 25.) For the reasons set forth below, the motion will be granted in part and denied in part.
Before addressing the summary judgment motion, the Court must resolve the defendant's pending motion to strike the affidavits of Farley Holt, Esq., attorney for the plaintiff Sherry Brillhart, which were submitted in opposition to summary judgment. (Doc. 39.)
In her response to the Sharp's statement of material facts in support of summary judgment, Brillhart submitted an affidavit from Attorney Holt in which Attorney Holt testifies to his personal observations of Sharp in other court proceedings and at a local hardware store. (See Doc. 32-3, App. B.) This affidavit is relied on to dispute Sharp's claim, based on the expert report of Dr. Roger Cadieux, that he "had limited cognitive ability and mobility in 2005." (See Def.'s Statement of Material Facts ["Def. SMF"] ¶ 27; Pl.'s Statement of Material Facts ["Pl. SMF"] ¶ 27.)
In support of her brief in opposition to summary judgment, Brillhart submitted another affidavit from Attorney Holt in which Attorney Holt testifies to his personal observations of the physical appearance of Adam Rineholt*fn1 , a man who alleges that Sharp engaged in inappropriate sexual contact similar to that alleged by the plaintiff here. (See Doc. 36-2, Ex. 1.) This affidavit is relied on to dispute Sharp's claim, again based on Dr. Cadieux's report, that his dementia renders him unable to differentiate between men and women when engaging in inappropriate behavior. (See Def.'s Br. in Supp. of Summ. J., Doc. 28, at 18;
Def.'s Br. in Opp'n to Summ. J., Doc. 36, at 11.)
Federal Rule of Civil Procedure 56(e) permits affidavits to be submitted in opposition to summary judgment if the affidavit is "made on personal knowledge", sets out "facts that would be admissible in evidence" and "show[s] that the affiant is competent to testify on matters stated." Fed. R. Civ. P. 56(e); Maldonado v. Ramirez, 757 F.2d 48, 50-51 (3d Cir. 1985). "In addition, the affiant must ordinarily set forth facts, rather than opinions or conclusions." Id. at 51. While attorney affidavits are permissible under this rule, they are often unadvisable, for some of the reasons set forth by the defendant in his motion to strike. See Palomba v. Barish, 626 F. Supp. 722, 725 (E.D. Pa. 1985).
The affidavits submitted by Brillhart appear to be made on personal knowledge as they contain Attorney Holt's personal observations of Sharp and Rineholt. It is highly questionable, however, whether the facts set out in the affidavits would be admissible at trial and whether Attorney Holt would be competent to testify to such facts. As the defendant notes, the rules of this Court and the Pennsylvania Rules of Professional Conduct prohibit an attorney from acting as both an advocate and witness at trial. See M.D. Pa. Local Rule 43.1; Pa. R. of Prof'l Conduct 3.7; see also M.D. Pa. Local Rule 83.23.2 (incorporating the Pennsylvania Rules of Professional Conduct as rules of this Court). By making himself a witness in this action, Attorney Holt has created an impermissible conflict with his representation of the plaintiff.
Sharp also argues that these affidavits should be stricken as a sanction for Brillhart's failure to disclose Attorney Holt as a potential witness as required by Rule 26(a). See Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 37(c)(1) provides that if a party without substantial justification fails to identify a witness as required by Rule 26(a), it may not use that witness to provide evidence on a motion. Rule 37(c) also authorizes the Court to prohibit the introduction of evidence by a party failing to disclose a witness and to strike an offending pleading. See Fed. R. Civ. P. 37(c)(1)(C) (incorporating sanctions set forth in Rule 37(b)(2)(A)(i)-(vi)). Perhaps recognizing the weaknesses in the attempt to oppose summary judgment through attorney affidavits, Brillhart has filed a motion requesting that the affidavit of Adam Rineholt himself be substituted for Attorney Holt's affidavit purporting to describe Rineholt's appearance.*fn2 The Court will grant this request. Attorney Holt's affidavit containing his observations of Rineholt will be stricken, and the affidavit of Adam Rineholt will be considered in opposition to the defendant's summary judgment motion.
Brillhart continues to oppose Sharp's request to strike Attorney Holt's affidavit containing his observations of the defendant. The only support provided for this opposition is that the affidavit "contains material facts and issues raised previously in pleadings in the instant case and to which Defendant did not oppose or object." (Doc. 42 at ¶ 1.) Attorney Holt's personal observations of the defendant, however, have never been mentioned in any submission in this action, and even if they had been considered for some other purpose, the present affidavit does not meet the requirements of Rule 56(e) because Attorney Holt is not competent to testify to these facts in this action. Further, to the extent that Brillhart argues that Attorney Holt's affidavit merely reiterates the allegations of her pleadings, the affidavit is also inappropriate to oppose summary judgment. See Fed. R. Civ. P. 56(e)(2) (stating that a party opposing summary judgment "may not rely merely on allegations or denials in its own pleading"). Brillhart has not demonstrated that the affidavit meets the requirements of Rule 56(e)(1), and therefore, Attorney Holt's affidavit describing his personal observations of the defendant will be stricken and not considered on the current summary judgment motion.*fn3
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must ... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.
With this standard of review in mind, the following are the undisputed facts material to the present motion, drawing any reasonable inferences in favor of the non-moving party, Brillhart.
At all relevant times, Sharp owned and operated a mobile home park in York, Pennsylvania. (Def.'s SMF ¶ 1.) Brillhart rented a lot in the park beginning in November 2003. (Id. at ¶ 2.) On March 10, 2005, Brillhart asked Sharp to come to her lot to make some repairs. (Id. at ¶ 5; Compl. ¶ 8.) When Sharp was finished with the repairs, he placed his hands on Brillhart's breasts and stated that he had fixed something for her and now she should be nice to him. (Def.'s SMF ¶ 6; Compl. ¶ 9.) Brillhart told Sharp to stop, but Sharp continued to grab her breasts and stated "it doesn't hurt to feel a little titty." (Compl. ¶¶ at 10-13.) Brillhart was eventually able to move away and again told Sharp to stop, but Sharp followed her and attempted to put his hands under her shirt. (Id. ¶¶ at 13-14.) Sharp then attempted to kiss Brillhart and place his tongue in her mouth. (Id. ¶ at
15.) Sharp stated that his penis was hard and asked Brillhart if she wanted to see it. (Id.) Brillhart told him no. (Id.) Sharp then asked Brillhart to have sex with him, and Brillhart refused. (Id. at ¶ 16.) Sharp attempted to pull Brillhart's legs apart and again demanded sex, again stating that his penis was hard. (Id. at ¶ 17.) Brillhart again resisted, again told Sharp to stop, and attempted to dissuade him by stating that she was having her period. (Id. at ¶¶ 16-18.) Sharp was not dissuaded, but rather exposed his penis and demanded oral sex, which Brillhart refused. (Id. at ¶ 19; Def.'s SMF ¶ ...