Wednesday, April 29, 2020

ARTICLE: Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits


Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

By Daniel E. Cummins | April 16, 2020
Pennsylvania Law Weekly

Daniel E. Cummins of Cummins Law.

Oftentimes, when a personal injury claim arises out of an underlying accident that involves criminal conduct by a tortfeasor defendant, there will be a criminal case proceeding against the defendant while the plaintiff is also simultaneously pursuing her or his civil lawsuit. This could arise, for example, where a motor vehicle accident emerges out of a DUI, where a student is injured in a hazing incident at a fraternity, or when a person is injured in an assault and battery.

In such cases, a defendant faced with criminal charges while the civil lawsuit is ongoing will usually file a motion with the civil court requesting that the civil case be stayed pending the resolution of the criminal case.

The concern for the defendant in such situations is that his exercise of the constitutionally protected right against self-incrimination under the Fifth Amendment to both the Pennsylvania and U.S. Constitutions may be in danger if the defendant is forced to answer interrogatories or undergo a deposition regarding the facts of the underlying matter.

Until recently, there was no set standard of review for civil trial court judges to rely upon in order to decide such motions to stay in the state courts of Pennsylvania.

A Foreshadowing of Appellate Precedent
In a prescient decision back in 2016 in the case of Liu v. Pi Delta PSI Fraternity, 302-CV-2015 (C.P. Monroe Co. 2016), Judge Arthur L. Zulick of the Monroe County Common Pleas Court reviewed the law surrounding a motion to stay a civil litigation matter pending the disposition of criminal charges asserted against the defendants in a companion case.

The Lui case arose out of fatal injuries sustained by the plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity. During the pendency of this civil litigation matter, criminal charges were also proceeding against certain defendants.

After the plaintiffs served discovery on the defendants, certain defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges. One basis for the motion was that the defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.

In his decision, Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.

Zulick found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution required a balancing of the various interests of the parties. Zulick noted that, while the Pennsylvania appellate courts had not yet adopted a specific balancing test to be applied in these situations, the federal courts had. In the Liu case, Zulick relied upon the factors noted in the case of In re Adelphia, (E.D. Pa. 2003). After applying these factors to the case before him, Zulick issued a split decision, granting the motion to stay in part but allowing other parts of discovery to proceed as well.

While Zulick was relying upon the six-factor test developed in the Pennsylvania federal courts, other Pennsylvania state trial court judges were apparently relying upon a variety of different standards of review to decide whether to grant a civil defendant a stay of a plaintiff’s personal injury lawsuit pending the results of a companion criminal court case against the defendant. The question of whether to grant a motion to stay in these circumstances was in need of appellate guidance with respect to a uniform way for state trial courts to address such motions.

An Appellate Case of First Impression

That appellate guidance arrived in March of this year, when the Pennsylvania Superior Court, in a case of first impression at the state court appellate level, adopted the same six-factor test in the case of Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.) (Op. by Olson, J.). In so ruling, the Superior Court also cited to the federal case of In re Adelphia Communications, No. 02-1781 (E.D. Pa. 2003).

Under the precedent of the recent Keesee case, the six factors that are now to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case include the following: the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests at issue.

The personal injury lawsuit in the Keesee case was brought by a nonunion electrical contractor against an indicted union boss and other defendants after the plaintiff was allegedly physically assaulted after the plaintiff secured a contract on a townhome project and refused to join the union. The defendants’ motion to stay, which asserted there were companion ongoing criminal investigations, was denied by the trial court. According to the Superior Court in Keesee, the trial court correctly referred to the six-factor test developed in the case of In re Adelphia Communications but had only reviewed the first of the six factors in its analysis.

The Superior Court remanded the case back to the trial court level with instructions to the trial court to conduct another review of the defendants’ motion to stay under the entire six-factor test.

While indicted defendants are considered innocent until proven guilty, in the past, trial courts have generally declined to completely stay a companion civil case. In the interests of judicial economy and of allowing injured party plaintiffs to move their cases forward toward compensation for the injuries alleged, the trial courts have sometimes attempted to craft a remedy that allows the case to proceed while, at the same time offering some protections for the defendant’s right against self-incrimination.

For example, in a multidefendant case, a trial court may allow the entire case to proceed against all defendants, but grant the defendant who is facing criminal charges a reprieve against answering interrogatories about the underlying accident or undergoing a deposition.

However, in cases where there is only one defendant, experience tells that most trial courts will deny the stay motion and allow the civil plaintiff’s case to proceed forward. The rationale for supporting an injured party’s right to compensation for injuries over a tortfeasor’s constitutionally protected right against self-incrimination is often couched in the language of several of the factors ultimately adopted by the Keesee court. What is usually not said, but which is likely true and perhaps rightfully so, is that trial courts do not look kindly upon tortfeasors who are alleged to have engaged in criminal actions that resulted in injury to others.

When a civil defendant’s motion to stay a civil lawsuit is denied, that defendant must resort to asserting his or her Fifth Amendment right against self-incrimination in response to any interrogatories or deposition questions. Questions may arise on whether or when a defendant may assert that right in a civil litigation matter.

Not Everyone Can Assert the Fifth

In cases where a defendant’s motion to stay a civil case due to a pending criminal case also proceeding at the same time is denied, the defendant has the option of pleading the Fifth Amendment in response to interrogatories and deposition questions about the facts of the underlying accident. The problem for the defendant in this regard is that “the court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege” against self-incrimination, as in Crozer-Chester Medical Center v. May, 531 A.2d 2, 6 (Pa. Super. 1987), appeal dismissed, 550 A.2d 196 (Pa. 1988).

The state courts of Pennsylvania have ruled that, obviously, a claim against self-incrimination cannot be claimed by a defendant when he has already passed through the criminal cases and has pleaded guilty or has been convicted. See Rogers v. Thomas, (C.P. Lacka. Co. 2015 Nealon, J.) citing with “see” signal Commonwealth v. Melvin, 103 A.3d 1, 51 (Pa. Super. 2014).

A question arises as to what extent a defendant may properly assert the privilege against self-incrimination in a civil matter when criminal charges have not yet been filed.

In the Pennsylvania Supreme Court case of Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005), the court set down the standard for trial courts to apply when determining whether a Fifth Amendment privilege has been properly invoked. The court noted that, when a witness pleads the Fifth, “‘it is always for the court to judge if the silence is justified, and an illusory claim should be rejected,’” quoting Commonwealth v. Carrera, 227 A.2d 627 (Pa. 1967).

The Supreme Court further noted that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answer demanded by the question presented to the witness cannot possibly have such a tendency.”

As such, it appears that under this standard the trial courts would err on the side of allowing the witness to assert such an important privilege. In fact, the Pennsylvania Supreme Court cautioned in the Carrera and Saranchak cases that “if an individual possesses reasonable cause to apprehend danger of prosecution, “it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination.”

In the event that a motion to stay a civil matter pending the results of a companion criminal case is denied, and the defendant goes on to assert the Fifth in response to any interrogatories or deposition questions, the plaintiff will be entitled to argue an adverse inference as well as receive a jury instruction in that regard. With that instruction, a jury will be permitted to infer that, had the defendant answered questions as to how the plaintiff’s injury occurred, the information provided by the defendant would have likely favored the plaintiff’s case.

As such, in the end, while criminal defendants may be considered to be innocent until proven guilty, they also run the substantial risk of being found negligent before being proven guilty.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters. Contact him at dancummins@cumminslaw.net.

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