Opinion
C.A. NO. 01A-12-005-FSS
Submitted: June 25, 2002
Decided: October 9, 2002
Mr. John Petsinger, 2216 A Naudain Street, Philadelphia, Pennsylvania, 19146-1110. Pro Se Appellant.
Bruce C. Herron, Esquire, Sawyer Akin Herron, P.A., 1220 N. Market Street, P.O. Box 25047, Wilmington, Delaware, 19899. Attorney for Appellees.
ORDER
This is an appeal from the dismissal of a civil complaint alleging perjury against a police office who arrested Plaintiff for motor vehicle offenses.
I.
In its broadest sense, the case began when Craig Doyle, who was then a Rehoboth Beach police officer, arrested John Petsinger for speeding and driving under the influence on May 24, 1996. The motor vehicle case proceeded through the Justice of the Peace Court and the Court of Common Pleas. For reasons that are unclear, but which have been referred to as "technicalities," the speeding charge was dismissed in the Justice of the Peace Court. After extensive pretrial proceedings and many continuances in the Court of Common Pleas, the case finally went to trial in front of a jury on April 15, 1999. Petsinger was found guilty of Driving Under the Influence. Petsinger's stop, arrest and conviction precipitated this civil case, in which Petsinger claims that Doyle committed "police perjury" causing Petsinger damages.
II.
Like the underlying motor vehicle prosecution, this civil litigation also began in the Justice of the Peace Court. Petsinger's complaint, however, was dismissed for lack of jurisdiction and he filed an appeal de novo in the Court of Common Pleas on November 27, 2000. Petsinger's Court of Common Pleas complaint alleged in pertinent part:
From 5/96 to 4/14/99 defendants testified to falsified and physically impossible police reports, causing plaintiff litigation costs in excess of $2000 which continue to date.
Plaintiff's complaint refers to Doyle's wrongful conduct as "police perjury."
Doyle filed a motion to dismiss in the Court of Common Pleas based on Petsinger's failure to state a claim upon which relief can be granted. Doyle relied on the Tort Claims Act and Hicks v. Mays. Petsinger filed a response that, for the most part, focused on the truth of Petsinger's claims coupled with invective about "The Delaware Justice System." Examples of Petsinger's histrionics were: "As a police officer, you can do as you damn well please. Make that one squeal like a pig while I take care of this one's purdy mouth." "In Delaware police testimony need not even be physically possible." And so on. Along with his bluster, Petsinger also mentioned: "This arrest/prosecution was `performed with wanton negligence or willful or malicious intent' . . . ."
Del. C. . § 4010 et. seq.
Del. Super., C.A. No. 90C-DE-39 (Steel, J., June 7, 1991).
Some of Petsinger's hard feelings about the c criminal justice system are not surprising. Apparently, a police officer not associated with this case made a racist remark in Petsinger's presence while waiting in the Justice of the Peace Court. It also appears that the offending officer's superiors investigated the incident at Petsinger's behest, confirmed Petsinger's claim, disciplined the officer and formally apologized, in writing. The court also regrets that an incident like this occurred in a building housing a Delaware court.
Initially, the Court of Common Pleas denied Doyle's motion without prejudice. Doyle eventually renewed it as a motion for summary judgment on November 11, 2001, and the Court of Common Pleas heard it on December 7, 2001. The oral argument centered on the fact that although the speeding charge was dismissed, Petsinger had tried to knock out the Driving Under the Influence charge by challenging the motor vehicle stop. Doyle argued that in the process of deciding Petsinger's pretrial motion in the motor vehicle case, the Court of Common Pleas found probable cause for the stop. That would mean that Petsinger is collaterally estopped in this case from re-litigating that adverse decision. Doyle also argued the Tort Claim Act.
Petsinger responded, in effect, that the pretrial decision in the motor vehicle case did not amount to a finding of probable cause. A traffic stop can be supported by mere suspicion. As Petsinger put it, "[t]he police man doesn't have to prove speeding, he just has to have a reason to stop." As for the Tort Claim Act, Petsinger argued that the Tort Claim Act "says bodily injury only." Moreover, according to Petsinger, the Tort Claim Act "was designed to stop frivolous suits," and Petsinger claims that he has scientifically conclusive proof that his arrest was unfounded.
The trial court took the case under advisement in order to reread the file.
On December 7, 2001 the trial court issued a non-explanatory order granting Defendant's motion for summary judgment. Petsinger then filed this appeal.
III.
Because the lower court made no findings of fact, this court is entitled to review the record and decide the dispositive motion anew, based on the record. In its appellate role, the court is not at liberty to perform its own fact-finding. From the record created below, the court can determine that the trial court's grant of summary judgement was proper.
First, Hicks v. Mays, which adopts Brisco v. Lahue, holds that the Tort Claims Act provides police officers with immunity from suit from all state claims seeking recovery of damages, except for property damage, bodily injury or death. Petsinger tries to avoid the Tort Claims Act's bar by alleging that Doyle's acts caused bodily injury. Specifically, Petsinger states that he is HIV positive and that he has "suffered a 402-. decrease in the number of T-cells. . . monitored as the result of his HIV infection, and he has lost nearly 25 pounds." Petsinger has an expert who would testify about "the negative physical effects of stress on HIV + people."
Id.
460 U.S. 32 (19 82).
Accepting Petsinger's proffered evidence as true and also assuming that causing a reduction in another person's T-cells amounts to compensable injury, Petsinger still has not proved that but for his arrest, his T-cell count probably would be normal or, at least, significantly better. In other words, even viewing the evidence in the light most favorable to Petsinger a jury would have to speculate in order to award damages for bodily injury. That means there is a failure of proof on that element of Petsinger's case. Thus, there is no basis to hold that the Tort Claims Act's bar does not apply.
There is an even stronger reason why Doyle is entitled to summary judgment: There is no private cause of action for perjury. Petsinger's claim, if he had one, was for malicious prosecution. While Petsinger has tried to recast his complaint on appeal to meet the requirements for a malicious prosecution case, he presented the case to the Court of Common Pleas as one for "police perjury." And that is a claim upon which Petsinger is not entitled to relief, as a matter of law. Perjury is a crime against the administration of justice. There is no private claim on behalf of someone injured by perjury. In criminalizing perjury, the General Assembly made no attempt to create a private cause of action for those allegedly stressed by perjury.
Lee v. Fowler, et al., 1995 WL 270140 (Del.Super.). See also, Trustees of Local 478 Pension Fund v. Pirozzi, 486 A.2d 1288, 1293-1294 (N.J.Super. L. 1983) ("The New Jersey courts are loa the to imply a civil remedy from a penal statute . . . . [A]lthough an individual may be harmed by the violation of a penal statute, the implication of a civil remedy from the penal statute will not follow.")
Even if Petsinger's claim is viewed as one for malicious prosecution, it also fails as a matter of law. One element of a claim for malicious prosecution is that the underlying case must end favorably to the civil plaintiff. The fact that Petsinger was not convicted of speeding does not mean that his prosecution ended favorably to him. Petsinger was convicted of driving under the influence, which is a significantly more serious charge than speeding.
Megenhardt v. Nolan, 583 A.2d 660 (Del. 1990).
The court is mindful of the conflict addressed in Hicks v. Mays. The court appreciates that several factors support general concerns about testimony by the police. Nevertheless, the court also appreciates Hicks' recognition that:
Del. Super., C.A. No. 90C-DE-39 (Steel, J., June 7, 1991).
Police officers are likely to testify in a significant number of cases each year. Defendants holding animosity toward the system and the officers involved in their convictions could be expected to raise allegations of perjury in many cases solely to vent their frustrations. The resulting cases would consume considerable time and resources of the judicial system along with significant emotional energy of police officers.Hick's reasoning brings to the fore the legendary federal jurist, Learned Hand's, reasoning. Over fifty years ago, Judge Hand considered the alternative evils of leaving plaintiffs with unredressed wrongs versus allowing retaliatory civil suits. He held:
[T]he answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
Gregoire v. Biddle, 177 F.2d 579, 58 1 (2nd Cir. 1949).
Judge Hand's reasoning was so clear that the United States Supreme Court adopted it, verbatim, almost 35 years later in Brisco v. Lahue. The court here adds that the chilling effect on law enforcement posed by retaliatory suits against honest police officers recognized by Judge Hand and the United States Supreme Court outweighs any slight deterrence to wrongful prosecution by police that is posed theoretically by the threat of civil litigation. All of the above assumes that Doyle testified falsely, which has not been established.
460 U.S. 325 (1983).
IV.
Mr. Petsinger obviously feels strongly about this case. In three courts over two years, he has pursued his claim persistently. Moreover, his pleadings are laced with sarcasm, invective and bitterness about the justice system. Presumably, this adverse ruling will fair no better in his mind than the earlier ones. Nevertheless, the court has taken Mr. Petsinger's claim seriously, showing more respect for him than he has shown for the courts. But no matter how strongly he feels about the events of the last six years since his arrest, Mr. Petsinger is not entitled to money damages from the arresting officer or the municipality for whom the officer worked.
V.
For the foregoing reasons, the order of the Court of Common Pleas granting summary judgment for Defendant-below/Appellees is AFFIRMED. IT IS SO ORDERED.