Kodenkandeth, J. v. McNabb, D.

J-A30007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN KODENKANDETH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DANIEL MCNABB, OWNER, T/D/B/A
SHOP ‘N SAVE, JAMES A. SORBARA AND
CHRISTINE A. SORBARA, LANDLORD, IN
PERSONAM AND IN REM DEFENDANTS,
INDIVIDUALLY AND SEVERALLY, IN
SOLIDO
Appellees No. 377 WDA 2017
v.
YOUGHIOGHENY VALLEY SPECIALTY
SERVICES, LLC,
Appellees
Appeal from the Order Entered February 13, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-14-018887
BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 27, 2018
John Kodenkandenth appeals from the order granting summary
judgment in favor of Daniel McNabb, owner, t/d/b/a Shop ‘n Save (“Shop ‘n
Save”), James A. Sorbara and Christine A. Sorbara, landlord, in personam
and in rem, individually and severally, in solido (“Sorbaras”), and
Youghiogheny Valley Specialty Services, LLC (“YVSS”). We affirm.
J-A30007-17
On October 29, 2012, Appellant traveled to a Shop ‘n Save grocery
Store located in Mt. Lebanon, Allegheny County. While gathering his
groceries, Appellant placed some items in his shopping cart and other items
in a brown, reusable grocery bag, which he had placed within the cart.
Unbeknownst to Appellant, his activities were observed by a security officer,
Gary Stanley, who was providing security for the store through his
employment with YVSS. Appellant proceeded to check out, wherein he
placed some of his groceries on the conveyor belt. The items he had placed
in the reusable grocery bag remained in the shopping cart, and, therefore,
they were not included in Appellant’s final payment. As the transaction
concluded, Mr. Stanley approached Appellant, restrained him on suspicion of
retail theft, and led Appellant to an office on the second floor mezzanine
area of the building.
While upstairs, Mr. Stanley removed Appellant’s jacket and his wallet,
which contained Appellant’s identification. Appellant explained that the
cashier accidentally failed to scan the items from the reusable bag, and
offered to pay for them. He then requested an attorney, and repeated his
offer to pay for the unaccounted for goods. His pleas were ignored.
Instead, Mr. Stanley completed a shoplifter apprehension report, and asked
Appellant to sign an acknowledgment indicating that he willfully
misappropriated the items in question and releasing Shop ‘n Save and YVSS
from any liability arising from the incident. Appellant signed the form, but
added the notation “not accused,” above his signature. Shortly thereafter,
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the Mt. Lebanon police arrived in response to Mr. Stanley’s call. After the
officer discussed the situation with Mr. Stanley and the store manager,
Appellant was placed under arrest and transported through the store to a
police cruiser parked outside. After spending fifteen minutes inside the
vehicle, Appellant was given a citation for retail theft and released.
Based on the foregoing, Appellant was convicted of retail theft before
the magisterial district judge. He appealed that decision. When Mr. Stanley
subsequently failed to appear at Appellant’s hearing, the trial judge
adjudicated Appellant not guilty and dismissed the matter. On October 14,
2014, Appellant filed a complaint against Daniel McNabb, the owner of the
Shop ‘n Save, and the Sorbaras, the owners of the building and land upon
which the store is situated. Thereafter, YVSS, Mr. Stanley’s employer, was
added as an additional defendant. Appellant’s complaint lodged various
claims, including, inter alia, false imprisonment, negligence, and numerous
violations of his constitutional rights. Following protracted pretrial litigation,
each defendant filed a motion for summary judgment. After a hearing on
those motions, the trial court granted the motions for summary judgment
filed by the three defendants, and denied a motion for summary judgment
filed by Appellant.
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Appellant filed a timely appeal and complied with the trial court’s order
to file a Rule 1925(b) concise statement of errors complained of on appeal.1
The trial court authored its Rule 1925(a) opinion, and this matter is now
ready for our review.
Appellant raises seventeen questions for our consideration:
[1.] Did lower court commit an error of law and abuse its
discretion by conducting a perfunctory hearing for summary
judgment during which nonmoving plaintiff was not allowed to
make a full presentation of his arguments and evidence
against all defendants?
[2.] Did court commit error of law or abuse of discretion that favor
defendants by failing to look at whole court record. Court
favors defendants by failing to comply with [Pa.R.C.P 1035.2]
that requires Judge to resolve all doubts and issues in a light
most favorable to nonmoving plaintiff based on whole trial
court record?
[3.] Did court commit errors of law or abuse its discretion by
fabricating background narrative, from a hearsay exhibit A.
that supports defendants in its background statement in its
opinion on page 3[?]
[4.] Did court commit errors of law and abuse of discretion, by
ignoring requirements of [Pa.R.C.P. 1035.2] and by ignoring
numerous genuine issues of material facts that are still in
dispute[?]
[5.] [Did] court commit errors of [l]aw and abuse of discretion by
refusing to preclude all issues including but not limited to [18
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1 During the pendency of this appeal before this Court, Appellant filed a
motion to amend the caption of his notice of appeal to conform with the
caption requirements of this Court. Insofar as any errors contained within
Appellant’s notice of appeal did not affect the propriety of this case, we deny
Appellant’s motion as moot.
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Pa.C.S. § 3929] heard by criminal division Honorable Judge
Gallo, who ruled on merits that [Appellant] was not guilty of
charges of [18 Pa.C.S. § 3929] on June 12, 2013. And this
order of criminal division Judge Gallo became final since
prosecutor and parties in privity failed to appeal[?]
[6.] Did court commit errors of law or abuse of discretion by
refusing to preclude claim for concealment that [Appellant]
was not charged in criminal court. Court erred as a matter of
law and abuse of discretion, for [Appellant’s] right to claim
preclusion of “concealment” during motion for summary
judgment in February 2017?
[7.] Did court commit errors of law or abuse of discretion by
changing order of criminal court Judge Gallo that was on
merits and final, rendered on June 12, 2013 to read
“dismissed” to favor defendants?
[8.] Did court commit an error of law and abuse of discretion, by
assuming that Gary Stanley had probable cause to seize the
plaintiff in checkout lane of supermarket[?]
[9.] Did court commit errors of law and abuse of discretion by
unconstitutional application of limited immunity and privilege
provided to lawful merchants in Retail Theft Act. And
discharged [Appellant’s] state tort claims, constitutional and
civil rights claims?
[10.] Did court commit errors of law and abuse of discretion by
using an exhibit A “apprehension report,” a hearsay, that was
attached to [Appellant’s] deposition which was altered,
tampered and concealed from [Appellant] for 3 years by
defendants?
[11.] Did court commit errors of law and abuse of discretion by
allowing two inadmissible affidavits that were not notarized
essentially hearsay by Mr. McNabb and Mr. Dennis Moriarty
who had no personal knowledge of incident that took place on
[October 29, 2012], to be used to favor Defendant Sorbaras?
[12.] Did court commit errors of law and abuse of discretion by
using a hearsay, altered and doctored exhibit A and two
inadmissible affidavits, whose probative values was far
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outweighed by its prejudicial value, in violation of [Pa.R.E.
403, 405, and 608]?
[13.] Did court commit errors of law and abuse of discretion, by
allowing defendants to violate [Pa.R.E. 106 and Pa.R.C.P.
4017.1(h)] and not to include deposition of [Appellant] into
the trial court record?
[14.] Did court commit error of law or abuse of discretion, favoring
defendant Sorbaras by ignoring, four other lower judges who
have ruled denying that defendant Sorbaras was “landlord out
of possession” and also ignoring four exceptions that apply to
general rule for designation as “landlord out of possession”[?]
[15.] Did court commit errors of law and abuse of discretion by
arguing that McNabb and YVSS were entitled to
shopkeepers[’] immunity as codified in Pa Retail Theft Act[?]
[16.] Did court commit error of law or abuse of discretion by
ignoring evidence, presented by [Appellant] in his response to
defendant McNabb’s motion for summary judgment?
[17.] Did court commit an error or abuse of discretion by ignoring
civil rights claims of [Appellant] that were upheld by four
Judges Hertsberg, Wettick, Delvecchio and Marmo who during
8 preliminary objections that were filed by defendants,
overruled objections of defendants for civil rights court 7 and
court 8 of [Appellant]?
Appellant’s brief at 4-7.
We review a trial court’s grant of summary judgment for an abuse of
discretion or an error of law. Finder v. Crawford, 167 A.3d 40, 44
(Pa.Super. 2017). Our review of questions of law is plenary. Id. Where an
appellant challenges the grant of summary judgment, we are guided by
Pa.R.C.P. 1035.2, which expresses
[w]here there is no genuine issue of material fact and the
moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears
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the burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on
an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to
judgment as a matter of law. Lastly, we will review the record in
the light most favorable to the nonmoving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party.
Id. (citation omitted).
Following our review of the certified record, we find the trial court
examined the entirety of the record in accordance with its standard of
review, and we discern no procedural errors in its grant of Appellees’
motions for summary judgment.2 Moreover, since we find that Appellant’s
____________________________________________
2 We observe that Appellant’s first, second, third, fourth, seventh, tenth,
eleventh, twelfth, thirteenth, and sixteenth issues raise general or specific
claims regarding the process utilized by the trial court in granting summary
judgment on behalf of Appellees. Based on our review of the record, these
claims are without merit. Significantly, the trial court grounded its ruling
largely on the averments contained within Appellant’s complaint, and his
own statements offered during his deposition. The court did not rely on
statements made in the affidavits presented by the Appellees that the
Sorbaras did not exercise control over Shop ‘n Save and YVSS. Simply,
Appellant never offered sufficient evidence to establish that the Sorbaras
exercised such control. In addition, Appellant failed to indicate how the
apprehension report authored by Mr. Stanley was fraudulent. In any case,
this evidence was largely cumulative of facts proffered by Appellant himself.
Further, Appellant highlights statements contained within the apprehension
report that he had placed certain items in his jacket pocket as an issue of
fact that remains in dispute. Based on our analysis, infra, facts such as this,
and others stressed by Appellant, are not material to the outcome of the
case. Finally, we note that, based on the pleadings filed in this matter, the
trial court was well aware of each parties’ arguments and the evidence
offered in support of those positions. The record indicates that the trial
court considered the entirety of this evidence, and did so in the light most
(Footnote Continued Next Page)
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fourteenth, fifteenth, seventeenth issues are dispositive, we turn our
analysis to those claimed errors.3 In his fourteenth issue, Appellant
contends that the trial court erred by finding that the Sorbaras were
landlords out of possession, and thus, could not be held liable for the
charges levied against them in Appellant’s amended complaint.
We have long held that “a landlord out of possession in not liable for
injuries incurred by third parties on the leased premises because the
landlord has no duty to such persons.” Jones v. Levin, 940 A.2d 451, 454
(Pa.Super. 2007). We note that “[t]his general rule is based on the legal
view of a lease transaction as the equivalent of a sale of the land for the
term of the lease.” Id. (citation omitted). As such, “liability is premised
primarily on possession and control, and not merely [on] ownership.” Id.
However, this rule is not absolute, and we have found exceptions wherein
we, nevertheless, hold a landlord out of possession liable for injuries
incurred by a third party. Specifically,
A landlord out of possession may incur liability (1) if he has
reserved control over a defective portion of the demised
premises; (2) if the demised premises are so dangerously
constructed that the premises are a nuisance per se; (3) if the
(Footnote Continued) _______________________
favorable to Appellant as the nonmoving party. Hence, we perceive no
procedural miscues pertinent to the outcome of this case.
3 We note that our resolution of Appellant’s fourteenth, fifteenth, and
seventeenth issues necessarily included the resolution of his fifth, sixth,
eighth, ninth, and thirteenth issues, as these issues are either repetitive or
encompassed within the claims raised in those issues.
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lessor has knowledge of a dangerous condition existing on the
demised premises at the time of transferring possession and fails
to disclose the condition to the lessee; (4) if the landlord leases
the property for a purpose involving the admission of the public
and he neglects to inspect for or repair dangerous conditions
existing on the property before possession is transferred to the
lessee; (5) if the lessor undertakes to repair the demised
premises and negligently makes the repairs; or (6) if the lessor
fails to make repairs after having been given notice of and a
reasonable opportunity to remedy a dangerous condition existing
on the leased premises.
Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa.Super. 1986) (citations
omitted).
Appellant’s argument in this regard is multi-faceted. First, he asserts
that the trial court erred in granting the Sorbaras’ motion for summary
judgment because “four other lower judges [have] ruled [on preliminary
objections] denying that defendant Sorbaras was [a] ‘landlord out of
[p]ossession.’” Appellant’s brief at 49. Second, Appellant maintains that the
Sorbaras are liable for his injuries since they reserved control over the
mezzanine area where he was held by Mr. Stanley. In support of this
position, Appellant points to an approximately 10,000 square foot
discrepancy between the lease agreement entered into between the
Sorbaras and SuperValu Holdings, Inc., who is not a party to this action, and
the Sorbaras’ real estate tax assessment as proof that the Sorbaras reserved
control of the mezzanine area.
At the outset, we observe that the prior rulings made by various
judges in this matter overruling the Sorbaras’ preliminary objections do not
have a preclusive effect on the trial court’s ruling on summary judgment.
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The Sorbaras’ preliminary objections challenged the legal sufficiency of
Appellant’s complaint pursuant to Pa.R.C.P. 1028(a)(4). The trial court may
sustain preliminary objections in the nature of a demurrer “only if, assuming
the averments of the complaint to be true, the plaintiff has failed to assert a
legally cognizable cause of action.” Lerner v. Lerner, 954 A.2d 1229, 1234
(Pa.Super. 2008). That is a decidedly different standard than the standard
provided for summary judgment under Pa.R.C.P. 1035.2, which requires a
party, “after the completion of discovery . . . to produce evidence of facts
essential to the cause or action or defense[.]” Pa.R.C.P. 1035.2(2).
Summary judgment is granted where a party fails to produce evidence of a
material fact necessary to establish an element of the cause or action or
defense. Pa.R.C.P. 1035.2(1). In light of these differing standards, the
rulings concerning preliminary objections in the nature of a demurrer filed
early in this litigation do not preclude the trial court from later granting
summary judgment.
Turning to the second aspect of Appellant’s argument, we find that,
when viewing the record in the light most favorable to Appellant as the
nonmoving party, the trial court did not err in finding the Sorbaras were
landlords out of possession, and therefore, they were not liable for any
injuries incurred by Appellant. Significantly, Appellant did not allege and did
not supply evidence to support the conclusion that the Sorbaras controlled
the mezzanine area, or were in any way responsible for the harm that he
purportedly sustained.
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Moreover, Appellant’s contentions are belied by the certified record. In
1998, the Sorbaras leased the land and building now containing the Shop ‘n
Save grocery store to SuperValu Holdings, Inc.4 Although the lease defines
the term “Rentable Feet,” as “[t]he actual number of square feet of finished
building space, including any and all floors, but excluding mezzanines not
used for sales purposes . . .,” it explicitly leases the entirety of the
“Premises,” as defined by an attachment to the lease that provided a legal
description of the lot containing the building. See Freestanding Lease
Agreement, 8/17/98, at ¶¶ 1.8, 1.10, 2.1, and Exhibit A. The lease did not
expressly reserve the mezzanine area for the use and control of the
Sorbaras, and the term “rentable feet” is never used to indicate the same.
Indeed, Appellant’s testimony revealed that Shop ‘n Save employees were
utilizing the mezzanine area for Shop ‘n Save business at the time he was
held, which also supports the conclusion that the Sorbaras were landlords
out of possession at the time of the incident in question. Further, there is no
evidence of record indicating that the Sorbaras exercised control over Shop
‘n Save activities or business.
Finally, Appellant did not establish any of the exceptions to the
landlord out of possession rule outlined above, such as the existence of a
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4 Subsequently, in 2006, SuperValu, Holdings Inc., subleased the premises
to J & D Supermarkets, LLC, the owner of the Shop ‘n Save in question. J &
D Supermarkets, LLC, is not a party to this proceeding.
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defect in the mezzanine itself that caused the harm he sustained.
Appellant’s evidence and pleadings clearly reflects that the harm he
supposedly sustained was caused by Mr. Stanley and the Mt. Lebanon police
department, and not the result of a defective condition of the building, a
failure to inspect the building, or negligent repair of the building. Since
Appellant alleged that he was injured by a third party while inside the
Sorbaras leased premises, and the Sorbaras were landlords out of
possession, the trial court did not err in granting summary judgment in their
favor. Levin, supra.
Appellant’s fifteenth claim challenges the trial court’s ruling that Shop
‘n Save and YVSS were entitled to immunity pursuant to the Retail Theft Act.
The relevant provisions read:
(a) Offense defined.--A person is guilty of retail theft if he:
(1) takes possession of, carries away, transfers or causes
to be carried away or transferred, any merchandise
displayed, held, stored or offered for sale by any store
or other retail mercantile establishment with the
intention of depriving the merchant of the possession,
use or benefit of such merchandise without paying the
full retail value thereof;
....
(c) Presumptions.--Any person intentionally concealing
unpurchased property of any store or other mercantile
establishment, either on the premises or outside the
premises of such store, shall be prima facie presumed to
have so concealed such property with the intention of
depriving the merchant of the possession, use or benefit of
such merchandise without paying the full retail value
thereof within the meaning of subsection (a), and the
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finding of such unpurchased property concealed, upon the
person or among the belongings of such person, shall be
prima facie evidence of intentional concealment, and, if
such person conceals, or causes to be concealed, such
unpurchased property, upon the person or among the
belongings of another, such fact shall also be prima facie
evidence of intentional concealment on the part of the
person so concealing such property.
....
(d) Detention.--A peace officer, merchant or merchant’s
employee or an agent under contract with a merchant,
who has probable cause to believe that retail theft has
occurred or is occurring on or about a store or other retail
mercantile establishment and who has probable cause to
believe that a specific person has committed or is
committing the retail theft may detain the suspect in a
reasonable manner for a reasonable time on or off the
premises for all or any of the following purposes: to
require the suspect to identify himself, to verify such
identification, to determine whether such suspect has in
his possession unpurchased merchandise taken from the
mercantile establishment and, if so, to recover such
merchandise, to inform a police officer, or to institute
criminal proceedings against the suspect. Such detention
shall not impose civil or criminal liability upon the peace
officer, merchant, employee, or agent so detaining.
18 Pa.C.S. § 3929(a), (c), and (d). Thus, pursuant to § 3929, a merchant
may detain a suspected shoplifter, without liability, for the purpose of (a)
identifying the suspect, (b) verifying his identity, (c) determining whether he
had unpurchased merchandise in his possession, (d) recovering unpurchased
merchandise from the suspect, (e) informing a peace officer, and (f)
instituting criminal proceedings. Angelopoulos v. Lazarus PA Inc., 884
A.2d 255, 260 (Pa.Super. 2005). Finally, for the purposes of § 3929, the
term “merchant” is defined as: “An owner or operator of any retail
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mercantile establishment or any agent, employee, lessee, consignee, officer,
director, franchisee or independent contractor of such owner or operator.”
18 Pa.C.S. § 3929(f).
In granting summary judgment on behalf of Shop ‘n Save and YVSS,
the trial court determined that both parties were “merchants” under § 3929,
and thus, immune from liability. Appellant assails this ruling, contending
that Mr. Stanley was not a policeman or employee of Shop ‘n Save, and that
there was no written contract between Shop ‘n Save and YVSS. Citing
Angelopoulus, supra, he argues that Shop ‘n Save “violated all permissible
actions” under the Retail Theft Act, as enumerated above, for example,
“violently seizing [Appellant] in the checkout lane without explanation,”
“false imprisonment for more than . . . 100 minutes,” “handcuffing and
holding [Appellant],” and “making [Appellant] sign a blank preprinted form
under pretext that it was just paperwork, and later using form as a
confession of guilt[.]” Appellant’s brief at 53. Essentially, Appellant asserts
that the parties are not entitled to immunity because Mr. Stanley was not a
merchant or agent under contract with Shop ‘n Save, and his apprehension
was not reasonable in manner or time.
We begin our analysis by observing that Appellant’s contentions that
Mr. Stanley was not an agent under contract with Shop ‘n Save misses the
mark. Mr. Stanley is not a party to this matter. Hence, whether he is
immune from liability in this matter is immaterial. Rather, the central
question herein is whether immunity applies to Shop ‘n Save and YVSS for
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the actions of Mr. Stanley. In this vein, we note that those entities meet the
threshold requirements of the Retail Theft Act to be entitled to immunity.
Here, as a grocery store, Shop ‘n Save operates a retail mercantile
establishment, and therefore, it qualifies as a “merchant” pursuant to 18
Pa.C.S. § 3929(f). It is also undisputed that Shop ‘n Save entered into an
oral contract with YVSS for the provision of loss prevention services. As
such, YVSS also qualifies as a “merchant” under § 3929(f) since it is an
independent contractor or agent of a retail mercantile establishment.
Therefore, Shop ‘n Save and YVSS are entitled to immunity if Appellant’s
detention was supported by probable cause, and was otherwise reasonable.
First, we find that the trial court did not err in determining that
Appellant’s detention was supported by probable cause. The trial court
noted that, “based on Appellant’s own testimony, [he] placed grocery items
in his bag in his shopping cart and proceeded through the checkout line
without paying for them.” Trial Court Opinion, 8/3/17, at 8-9. It
determined that, as a matter of law, Appellant’s actions established
sufficient probable cause to support his detention since “a reasonably
prudent person viewing the events as [Mr.] Stanley saw them could believe
that Appellant was shoplifting merchandise from Shop ‘n Save.” Id. at 9-10.
The record reveals that Mr. Stanley observed Appellant placing goods
in both his shopping cart, and in a brown reusable bag that he had placed
within the shopping cart. Appellant paid for the goods within the cart, and
not the goods within his bag. Under § 3929(c), when a customer conceals
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unpurchased merchandise while in the store, it is presumed that the person
did so with the intent to deprive the merchant of its possession. 5 18 Pa.C.S.
§ 3929(c). Hence, at the moment Mr. Stanley approached Appellant, he had
probable cause to believe that Appellant had taken possession of
merchandise offered for sale by Shop ‘n Save with the intent of depriving
Shop ‘n Save thereof. Thus, the trial court did not err in this regard.
Second, in granting Appellees’ motions for summary judgment, the
trial court necessarily determined that Appellant’s detention was reasonable
in both manner and time. Upon review of the record, we conclude that the
court did not err in so finding. Instantly, Appellant alleged that he was
violently apprehended, taken into an office, and not allowed to leave. While
inside the office, Mr. Stanley removed Appellant’s jacket and wallet,
searched the reusable cloth bag, and checked Appellant’s identification.
Subsequently, Mr. Stanley filled out an “apprehension report,” which
Appellant initially refused to sign without the aid of an attorney, but later
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5 Elsewhere in this brief, Appellant claims that this Court is precluded from
using the term “concealed” when describing his action of placing some of his
items out of plain sight in the reusable bag. Appellant asserts that, since he
was only charged with retail theft under 18 Pa.C.S. § 3929(a)(1), we are
precluded from finding that he “concealed” any items for the purposes of §
3929(c). However, the outcome of Appellant’s later criminal proceedings
has no bearing on whether Mr. Stanley had probable cause at the time of his
apprehension. Furthermore, § 3929(c) is not a separate offense under the
Crimes Code, but rather, a presumption which applies to the crime of retail
theft. Thus, we are not precluded from describing Appellant’s conduct as the
“concealment” of goods within a non-transparent bag.
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acquiesced into signing when told that he would be released. That form
contained a clause providing immunity for Shop ‘n Save and YVSS. Rather
than release Appellant, Mr. Stanley notified police who arrived shortly
thereafter. His detention with Shop ‘n Save lasted between fifty-five and
one-hundred minutes.6 Additionally, Appellant did not sustain any injuries or
seek medical treatment following this ordeal.
The record reveals that Mr. Stanley’s conduct within the second floor
office complied with the conduct permitted by § 3929. During Appellant’s
detention, he identified the suspect, verified his identity, determined
whether Appellant had unpurchased merchandise in his possession,
recovered unpurchased merchandise, and informed a police officer.
Angelopoulos, supra. Although Mr. Stanley’s supposed promise that he
would release Appellant if Appellant signed the apprehension report raises
the specter of coercion, that form does not provide the basis of immunity
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6 In his complaint, Appellant alleged that he signed the apprehension report
after being detained for forty-five minutes, and the police arrived ten
minutes later. Complaint, 10/14/14, at ¶¶ 15-17. In subsequent filings,
Appellant claimed he was held by Shop ‘n Save for more than ninety
minutes. Pretrial Statement, 1/20/17, at 4. We note with some
consternation that only portions of Appellant’s 10/29/15 deposition were
included in the record, and thus, Appellant has not provided evidence on the
record to support the actual duration of his detention. We remind Appellant
that it was his responsibility to ensure the record was complete. Ignelzi v.
Ogg, Cordes, Murphy and Ignelzi, LLP, 160 A.3d 805, 808 n.4 (Pa.Super.
2017) (noting “Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court
to perform its duty.”).
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herein, Appellant was ultimately acquitted of his criminal offense, and
Appellant was not under arrest at that time. That is, the legal effect of that
form is immaterial to the outcome of this matter, nor did it serve as a basis
for a subsequent criminal conviction. Thus, this aspect of Appellant’s
detention does not render the whole incident to be unreasonable.
In so far as there is a discrepancy in the time Appellant spent
detained, he did not allege or establish any extended period where Mr.
Stanley was not performing one of the above-named functions or discussing
the matter with Shop ‘n Save management or the police. The duration of
time Appellant remained in the office was apparently necessary for Mr.
Stanley to investigate the suspected offense.
Appellant challenged the reasonableness of his detention by relying on
our holding in Angelopoulos, supra. We find this case inapposite. In
Angelopoulos, the shopper, Angelopoulos, ate two chocolates from an open
box on display in a grocery store. This act was witnessed by the loss
prevention team, who approached and detained Angelopoulos on suspicion
of retail theft. The loss prevention associate took Angelopoulos to a nearby
office, where her purse, bags, and body were searched. A loss prevention
associate then handcuffed Angelopoulos to a table affixed to the floor. After
taking Angelopoulos’s identification, the loss prevention associate presented
her with a statement of admission, which she refused to sign.
Angelopoulos’s pleas to remove the handcuffs were denied based on a store
policy, which required all suspected shoplifters to be handcuffed. After being
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handcuffed for fifty to fifty-five minutes, Angelopoulos signed the statement
of admission and was released from the restraints.
Angelopoulos filed a complaint against the grocery store, and the jury
found, among other things, that Angelopoulos’s detention was reasonable in
both time and manner. Following a post-trial motion, the trial court
determined that this finding was against the weight of the evidence since the
grocery store had used the handcuffs to accomplish an end beyond one of
the enumerated purposes of the Retail Theft Act outlined above, and it
refused to release Angelopoulos when she initially declined to sign the
admission form. The court granted Angelopoulos a new trial, and the
grocery store appealed.
On appeal, we found that Angelopoulos’s detention was unreasonable
because she remained in handcuffs long after the loss prevention associate
had completed the procedures permitted by the Retail Theft Act. In so
finding, we stated “[w]e agree with the trial court’s conclusion that [the
grocery store’s] continued detention of Angelopoulos, in handcuffs, exceeded
all bounds of decency and we express our outrage at such a procedure.”
Angelopoulos, supra at 261. As such, we affirmed the trial court’s grant
of a new trial.
Angelopoulos is readily distinguishable from the facts herein. Unlike
Angelopoulos, Appellant was not handcuffed while being detained by Shop
‘n Save. Rather, he claimed that he was handcuffed after the police arrived
and arrested him for retail theft, that is, after his detainment by Shop ‘n
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Save terminated. Further, of utmost import, as noted above, the record
does not support the conclusion that Appellant was detained in excess of the
amount of time required to complete the investigatory actions permitted by
the Retail Theft Act. Simply, Appellant did not establish that he was
detained for an unreasonable amount of time since Mr. Stanley conducted
only permissible investigatory activities while detaining Appellant, and then
promptly notified the police. As such, the trial court did not err in
determining that Appellant’s detainment was reasonable in duration. Thus,
since Appellant’s detainment was supported by probable cause and was
reasonable in manner and time, we conclude that the trial court did not err
in determining that, as a matter of law, Shop ‘n Save and YVSS were
entitled to immunity pursuant to § 3929(d). Hence, this claim fails.
Finally, Appellant challenges the trial court’s legal conclusion that
Appellees were not state actors for the purposes of his constitutional claims
pursuant to 42 U.S.C. § 1983. In his complaint, Appellant raised numerous
allegations contending that Appellees violated his civil rights under the
United States Constitution. Among his various claims, Appellant claimed
that Appellees discriminated against him based on race and national origin,
violated his due process and equal protection rights, committed an unlawful
warrantless search and seizure, violated his right to counsel, and failed to
provide him with Miranda warnings.
It is well-established that
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[t]o properly state a Section 1983 claim, a plaintiff must allege a
deprivation of a right guaranteed by the Constitution or the laws
of the United States by a defendant acting under color of law.
There are two essential elements necessary to state a claim
under 42 U.S.C. § 1983: (1) that the conduct complained of was
committed by a person acting under color of state law; and (2)
that the conduct deprived the Plaintiff of rights, privileges, or
immunities secured by the Constitution or laws of the United
States.
Snead v. Society for Prevention of Cruelty to Animals of
Pennsylvania, 929 A.2d 1169, 1180 (Pa.Super. 2007) (citations omitted).
We have long held security guards working for private companies do not act
under the color of state law. Commonwealth v. Lacy, 471 A.2d 888, 890
(Pa.Super. 1984). In Lacy, we found § 3929(d) was constitutional, and
specifically determined that security guards “acting in a private capacity,
rather than under color of state law . . . were entitled, upon probable cause,
to search [a suspect] without applying for or receiving a search warrant.”
Id. Nevertheless, state action may be attributed to private individuals
pursuant to the “close nexus” test, “where the state can be deemed
responsible for the specific conduct of the private actor.” Hennessy v.
Santiago, 708 A2d 1269, 1276 (Pa.Super. 1998) (citing Jackson v.
Metropolitan Edison Co., 419 U.S. 345 (1974)).
Appellant alleges that Appellees were acting under the color of state
law at the time of his apprehension and detainment.7 He contends that
____________________________________________
7 Appellant’s final argument also asserts that the trial court was barred from
finding Appellees were not state actors based on claim and issue preclusion
since four judges earlier in the litigation overruled preliminary objections by
(Footnote Continued Next Page)
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state action can be attributed to Appellees because they share a “close
nexus” and cooperate with the Mt. Lebanon police department. Appellant’s
brief at 61. Appellant does not describe that nexus, or explain how the
police department is responsible for the conduct surrounding his detainment.
In any case, our review of the record reveals no basis upon which we
could attribute Mr. Stanley’s actions to the Mt. Lebanon police department,
and Appellant did not allege or provide evidence supporting such a close
nexus. After investigating the suspected retail theft, Mr. Stanley reported
the crime to police. The police then arrived, gathered information regarding
the incident, and arrested Appellant. There is no indication in the record,
and Appellant does not point to any specific fact, which would lead us to
conclude that this incident was anything other than a routine arrest. Thus,
we discern no error in the trial court’s determination that Appellees were not
state actors for the purposes of Appellant’s § 1983 claims.
In summary, Appellant raised an abundance of issues purporting to
raise genuine issues of material fact. When viewing the record in the light
most favorable to Appellant as the nonmoving party, we find that Appellees
(Footnote Continued) _______________________
Appellees raising the same claim. For the reasons set forth in our analysis of
Appellant’s fourteenth issue, infra, this claim fails. In addition, Appellant
lodges numerous complaints that the trial court exhibited bias and
discriminated against him in granting summary judgment. Appellant’s brief
57-58. These claims do not address whether Appellees are state actors,
and, in any case, they were not raised in his 1925(b) statement. Thus, they
are waived. Pa.R.A.P. 302 (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”).
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herein cannot be held liable for the alleged injuries Appellant sustained on
October 29, 2012. Thus, any factual dispute remaining in this matter is not
material to the outcome of this litigation, and the trial court did not err in
granting summary judgment in favor of Appellees. As such, we need not
reach Appellant’s remaining issues.
Order affirmed. Motion to amend caption of notice of appeal denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2018
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