J.T. Zanicky v. PSP ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John T. Zanicky, :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 219 M.D. 2021
Respondent : Submitted: December 16, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 7, 2022
Before this Court is the Pennsylvania State Police’s (PSP) preliminary
objection (Preliminary Objection)2 to John T. Zanicky’s (Zanicky) Complaint in
Replevin (Complaint) filed in this Court’s original jurisdiction. After review, this
Court sustains the Preliminary Objection and dismisses the Complaint.
Facts3
On October 20, 2020, PSP personnel served Zanicky with an
unsigned/unexecuted warrant to search his residence at 283 Chicora Road, Butler,
Pennsylvania (Property), and all curtilage and outbuildings, vehicles, and property
within the Property’s boundaries. See Complaint ¶ 3. PSP’s search of Zanicky’s
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
Although PSP filed two preliminary objections, only one is before this Court.
3
The facts recited herein are as alleged in Zanicky’s Complaint.
home, based on a warrant substantiated by an unreliable witness affidavit,4 was
actually an effort to destroy Zanicky’s various realty and personalty, including
“garage doors, safe doors, cabinetry, surveillance cameras, furniture, and even a
previously-unopened bag of potato chips” the PSP opened onto a carpeted floor.
Complaint ¶ 4. “When not mindlessly destroying specific items, PSP merely
ransacked the remainder of [his] home leaving same in a shamble[].” Id. “[T]he
vast majority of said personalty seized was not listed on the ‘items to be seized’
portion of [the] warrant[,]” and “[o]ther personalty seized, which happened to be on
said list, were also items owned by millions of Americans via legal means . . . .”
Complaint ¶ 6. In addition, “approximately fifty thousand . . . dollars ($50,000.00)
in cash was seized from [his] home, despite the fact that cash/currency/etc. was not
listed on the aforementioned list of things to be seized[,]” and “the cash seized was
only listed as ‘Bulk Money’ from various locations, and no actual accounting of the
funds seized has been issued.” Complaint ¶¶ 8-9. No charges have been filed arising
from the search and seizure, nor have any civil asset forfeiture proceedings been
initiated. See Complaint ¶ 11.
On April 5, 2021, Zanicky filed the Complaint in the Butler County
Common Pleas Court (trial court) seeking immediate return of all personalty seized
from his home, and payment of all costs/attorney fees associated with the action. On
April 23, 2021, PSP filed preliminary objections, averring therein: (1) Zanicky
improperly filed the action in the trial court rather than in the Commonwealth Court;
and (2) Zanicky’s Complaint should be dismissed because his claim is barred by
sovereign immunity and the Complaint lacks legally sufficient facts to support a
right to relief. Zanicky conceded that the matter should be properly brought before
4
“[D]espite one of the bases for the alleged probable cause to search was [Zanicky’s]
alleged payment . . . to [the witness] in the form of drugs[,] [c]onspicuously, no drug contraband
whatsoever was seized from [Zanicky’s] home.” Complaint ¶ 7.
2
this Court, and, on June 25, 2021, the trial court transferred the matter to this Court
in its original jurisdiction. Thus, only one Preliminary Objection remains for
disposition.
Discussion
Initially,
“In ruling on preliminary objections, the courts must
accept as true all well-pled facts that are material and all
inferences reasonably deducible from the facts.” Guarrasi
v. Scott, 25 A.3d 394, 400 n.5 (Pa. Cmwlth. 2011).
However, we “are not required to accept as true any
unwarranted factual inferences, conclusions of law or
expressions of opinion.” Id. To sustain preliminary
objections, “it must appear with certainty that the law will
permit no recovery” and “[a]ny doubt must be resolved in
favor of the non-moving party.” Id.Pa. Indep. Oil & Gas Ass’n v. Dep’t of Env’t Prot., 135 A.3d 1118, 1123 (Pa.
Cmwlth. 2015).
PSP asserts that, because Zanicky’s Complaint is in replevin, sovereign
immunity bars Zanicky’s right to relief.
The action of replevin is founded upon the wrongful taking
and detention of property and seeks to recover property in
the possession of another. The value is recovered in lieu
of the property only in case a delivery of the specific
property cannot be obtained. Replevin is a possessory
action in which the issues are plaintiff’s title and right of
possession. The primary relief sought is the return of the
property itself, the damages being merely incidental.
Valley Gypsum Co., Inc. v. Pa. State Police, 581 A.2d 707, 710 (Pa. Cmwlth. 1990).
In Valley Gypsum, a property owner filed a civil action in replevin against PSP and
a storage facility owner, wherein Valley Gypsum sought the return of a trailer that
3
PSP had impounded following a fatal tractor-trailer accident. PSP moved for
summary judgment, which the lower court granted.
This Court affirmed the lower court’s order granting PSP’s summary
judgment motion, explaining:
The legislature affirmed sovereign and official immunity
and immunity from suit for the Commonwealth, its
officials and employees acting within the scope of their
duties. 1 Pa.C.S. § 2310. Under authority granted to it,
the legislature enacted certain enumerated exceptions to
sovereign immunity waiving:
[I]n the instances set forth in [Section
8522](b) [of what is commonly referred to as
the Sovereign Immunity Act (Sovereign
Immunity Act), 42 Pa.C.S. § 8522(b)], only
and only to the extent set forth in this
subchapter . . . sovereign immunity as a bar
to an action against Commonwealth parties,
for damages arising out of a negligent act
where the damages would be recoverable
under the common law or a statute creating a
cause of action if the injury were [sic] caused
by a person not having available the defense
of sovereign immunity. [Section 8522(a) of
the Sovereign Immunity Act,] 42 Pa.C.S. §
8522(a). (Emphasis added.)
The legislature then set forth nine (9) general acts by a
Commonwealth party which may result in the imposition
of liability on the Commonwealth and the defense of
sovereign immunity is not to be raised. [See] 42 Pa.C.S. §
8522(b).
The totality of the [Sovereign Immunity] Act providing for
exceptions to sovereign immunity requires that damages
arise out of a negligent act and the negligence occur[s]
within one or more of the nine (9) acts which may impose
liability.
Clearly, an action of replevin for personal property, as
hereinabove set forth, is neither one for damages
arising out of a negligent act nor within the purview of
4
the exceptions to sovereign immunity which may
impose liability.
Valley Gypsum, 581 A.2d at 710 (bold emphasis added; footnote omitted); see also
Martin v. Clark (Pa. Cmwlth. No. 74 C.D. 2018, filed July 27, 2018); Williams v.
Pa. Dep’t of Corr. (Pa. Cmwlth. No. 695 M.D. 2016, filed Sept. 11, 2017); Mercaldo
v. Kauffman (Pa. Cmwlth. No. 1333 C.D. 2015, filed Mar. 31, 2016).5
As in Valley Gypsum, because Zanicky’s replevin action is “neither one
for damages arising out of a negligent act nor within the purview of the exceptions
to sovereign immunity which may impose liability[,]” Valley Gypsum, 581 A.2d at
710, sovereign immunity bars Zanicky’s claim. Accordingly, this Court sustains
PSP’s Preliminary Objection and dismisses the Complaint.6
Conclusion
For all of the above reasons, PSP’s Preliminary Objection is sustained,
and Zanicky’s Complaint is dismissed.
_________________________________
ANNE E. COVEY, Judge
5
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. Martin, Williams, and Mercaldo are cited
herein for their persuasive value.
6
Given that Zanicky’s Complaint is barred by sovereign immunity, this Court need not
address PSP’s assertion that the Complaint lacks sufficient facts to support a right to relief.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John T. Zanicky, :
Petitioner :
:
v. :
:
Pennsylvania State Police, : No. 219 M.D. 2021
Respondent :
ORDER
AND NOW, this 7th day of January, 2022, the Pennsylvania State
Police’s preliminary objection to John T. Zanicky’s Complaint in Replevin is
SUSTAINED and the Complaint is DISMISSED.
_________________________________
ANNE E. COVEY, Judge