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Dawn A. Pyeritz, Administratrix v. Commonwealth of Pennsylvania

November 23, 2011

DAWN A. PYERITZ, ADMINISTRATRIX OF THE ESTATE OF DANIEL E. PYERITZ, DECEASED, AND DAWN A. PYERITZ, PARENT AND NATURAL GUARDIAN OF NICOLE L. PYERITZ, A MINOR, AND CHRISTOPHER E. PYERITZ, A MINOR, AND DAWN A. PYERITZ, AN INDIVIDUAL, IN HER OWN RIGHT, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, STATE POLICE DEPARTMENT OF THE COMMONWEALTH OF PENNSYLVANIA, COL. JEFFREY B. MILLER, COMMISSIONER, PENNSYLVANIA STATE POLICE, PENNSYLVANIA STATE POLICE TROOPERS JAMES CUSTER AND DANIEL EKIS, PENNSYLVANIA STATE POLICE CORPORALS JAMES CACCIMELIO AND ANDRE STEVENS AND PENNSYLVANIA STATE POLICE LIEUTENANT CHARLES DEPP, APPELLEES



Appeal from the Order of the Commonwealth Court entered September 15, 2008 at No. 1592 CD 2007, affirming the Order of the Fayette County Court of Common Pleas entered July 20, 2007 at No. GD 541 of 2005.

The opinion of the court was delivered by: Mr. Justice McCAFFERY

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: September 15, 2009

OPINION

In this case, Appellants sued Appellees based on the destruction of personal property, to wit, a black nylon tree stand safety harness, or belt, that allegedly was crucial evidence in a separate civil action. The Pennsylvania State Police ("State Police") had seized this item during a criminal investigation of a suspicious death. A state trooper had agreed to retain the belt in the custody of the State Police, apparently for a longer period of time than permitted by internal State Police regulations, for Appellants‟ later use. However, the belt was destroyed before Appellants‟ counsel asked for its return. Appellants sued, and the trial court granted summary judgment to Appellees, which judgment the Commonwealth Court affirmed. The Commonwealth Court held, inter alia, that no cause of action exists against a third party -- someone other than the original alleged tortfeasor -- for negligent spoliation of evidence. We granted review, and now hold that Pennsylvania law does not recognize a cause of action for negligent spoliation of evidence.

Because this is an appeal from the affirmance of the grant of summary judgment, we view the record in the light most favorable to Appellants, as they were the non-moving parties. Liss & Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 657 (Pa. 2009). When so considered, the record reveals the following. Decedent, Daniel Pyeritz, left his brother‟s home near Markleysburg in Fayette County during the early morning hours of October 30, 2001, to go hunting. He drove his four-wheel drive vehicle into the woods, climbed up a tree to a tree stand approximately 15 feet above the ground, and lashed himself to the tree stand with the black nylon belt at issue here.*fn1 When Mr. Pyeritz failed to return to his brother‟s house at the expected time, a search party was formed; Mr. Pyeritz was found dead at the bottom of the tree. The belt had ripped in two; half of it was found around Mr. Pyeritz‟s waist, and the other half was still in the tree stand. At the time of his death, Mr. Pyeritz was 47 years old, married to Appellant Dawn Pyeritz, and the father of one minor child and one adult child, Appellants Nicole L. and Christopher E. Pyeritz, respectively. A high-school graduate, Mr. Pyeritz had worked for 16 years for US Airways as a baggage handler, and at the time of his death, he earned approximately $55,000 a year.

When they found Mr. Pyeritz‟s body, the searchers called the State Police, and Appellee Trooper Daniel Ekis ("Trooper Ekis") was assigned to the investigation. Trooper Ekis took the two pieces of the tree stand belt into custody and logged them into evidence at the State Police barracks in Uniontown, where they were placed in two separate manila envelopes and lodged in the evidence room. Shortly after Mr. Pyeritz‟s death, and during the pendency of the criminal investigation into the death, Appellants hired counsel to investigate pursuing a civil suit. Counsel for Appellants sent Trooper Ekis a letter in November 2001, stating, "Because of the extreme need to see that there is no spoliation of this evidence, I may ask you to retain the harness for the indefinite future, even after the inquest, if you are able to do so." Letter dated November 27, 2001, from Michelle H. Lally, Esq., to Trooper Ekis. Trooper Ekis informed counsel that there would be a coroner‟s jury proceeding to determine the cause and manner of death, and that until that proceeding ended, the pieces of the belt could not be released from State Police custody. In January 2002, Appellants‟ counsel and a professional photographer went to the Uniontown barracks and took photographs of the two separate pieces of the belt. On May 21, 2002, a representative of one of the putative manufacturers of the belt, accompanied by Appellants‟ counsel, also took photographs of the two belt pieces at the Uniontown barracks.

An inquest was eventually held approximately one year later, in November 2002, after which the coroner‟s jury determined that the manner of death was an avoidable accident. Shortly after the coroner‟s jury rendered its verdict, still in November 2002, Appellants‟ counsel asked Trooper Ekis to keep the pieces of the belt in the evidence room, and Trooper Ekis agreed to the request. As Trooper Ekis testified at his deposition, "Well, I first said that you guys could have the evidence, and you [Appellants‟ counsel] said could we keep it at the barracks until you made a determination through the civil case, and I said we would keep it in the evidence room." Deposition of Trooper Daniel Ekis, 10/6/03, at 30. Trooper Ekis placed the pieces of the belt back in the evidence room at the Uniontown barracks, and made a notation on a clipboard in the evidence room where the belt was being stored that the belt was to be released either to Appellant Dawn A. Pyeritz or to her counsel. Id. at 31.

In June 2003, the Uniontown barracks were relocated to a new building. All of the evidence in the evidence room at that time, including the two pieces of the belt, was transferred to the new facility. At some point prior to this relocation but after having agreed to keep the belt in the evidence room, Trooper Ekis was transferred to a barracks in Waynesburg. As a result, the investigation into Mr. Pyeritz‟s death was reassigned to other troopers, with responsibility for the case eventually being given to Appellee Trooper James Custer ("Trooper Custer"). In July 2003, Trooper Custer, with the approval of Appellee Corporal James Caccimelio, destroyed the two pieces of the belt, presumably pursuant to the State Police Evidence Guidelines, which require that within three months after an investigation is completed, the investigating officer is to notify the custodial officer, who is to ensure that any property in State Police custody be returned to its owner, escheated to the Commonwealth, donated to the state treasury, or destroyed.

In August 2003, approximately ten months after the inquest, counsel for Appellant asked for the pieces of the belt and learned that they had been destroyed. All that remained were the photographs of the belt and two boxes in which the pieces of the belt had previously been stored, on which the names of two tree stand belt manufacturers had been written. Appellants filed a products liability suit in federal court in September 2003, against these two manufacturers. Appellants and the manufacturers settled the suit in November 2003, for $200,000.

In October 2003, prior to that settlement, Appellants commenced the instant action by filing a praecipe for writ of summons against the State Police and various troopers. In their single-count complaint filed on October 21, 2004, Appellants styled their action as one in negligence "for failure to preserve evidence necessary for plaintiffs‟ third-party claim." Appellants averred that they had suffered the following damages:

1) loss of probable expectancy of recovery in the action against the manufacturers of the belt; 2) significant impairment of the action against the manufacturers of the belt; 3) deprivation of the belt resulting in Appellants‟ inability to obtain expert testimony; and 4) inability to prove the action against the manufacturers of the belt.

Complaint at ¶¶ 42, 45.

Appellants sought damages as follows:

[1)] . jointly and severally, in an amount that fully compensates the Plaintiffs and adequately punishes the Defendants; or, in the alternative, [2)] in an amount in which the damages that might have been awarded in the underlying suit are discounted by the probability of success in that case had Defendants not destroyed the evidence; or, in the alternative [3)] the statutory maximum recoverable in cases where sovereign immunity is waived; or, in the alternative [(4)] in an amount this Honorable Court deems just.

Id. at pp. 13, 15.*fn2

In September 2006, Appellees moved for summary judgment, arguing that Pennsylvania does not recognize a cause of action for negligent spoliation of evidence. During the course of her presentation at the hearing on the summary judgment motion, Appellants‟ counsel argued that a bailment had been created, which gave rise to a special relationship which, in turn, would warrant holding Appellees liable for spoliation. Appellants‟ counsel stated it was Appellees‟ counsel‟s opinion that the only recovery available was $19.82, the value of the belt, and that such an opinion was "laughable." Notes of Testimony, 6/22/07, at 12. Appellants‟ counsel further argued that the value of the destroyed property was the value of the underlying lawsuit. Id. at 23-24. After considering Appellants‟ response to the motion and after hearing oral argument, the trial court entered summary judgment in Appellees‟ favor. Appellants appealed to Commonwealth Court, which affirmed. Pyeritz v. Pa. State Police, 956 A.2d 1075 (Pa.Cmwlth. 2008).

Appellants sought allowance of appeal, and we granted review of the following issue:

Whether Pennsylvania recognizes, and if so whether Petitioners have alleged, a cause of action for negligent spoliation of evidence?

Pyeritz v. Pa. State Police, 969 A.2d 1183 (Pa. 2009).*fn3

Our standard of review of the grant of summary judgment is de novo and our scope of review is plenary. Liss & Marion, supra at 657. A motion for summary judgment is properly made if "there is no genuine issue of any material fact as to a necessary element of the cause of action." Pa.R.C.P. 1035.2(1). Summary judgment may be entered only when, even after examining the record in the light most favorable to the non-moving party, and resolving of 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 ...


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