S.N. Kerns v. T.H. Tharp
S.N. Kerns v. T.H. Tharp - 669 C.D. 2016
| Pa. Commw. Ct. | Mar 8, 2017Background
- Appellant Scott N. Kerns is an inmate convicted (guilty plea) of indecent deviate sexual intercourse with a child; conviction and sentence were affirmed on direct appeal.
- In 2007 Kerns sued multiple parties (First Complaint), including prosecutor Tonya Tharp, alleging conspiracy and civil-rights/negligence claims; the trial court dismissed for service defects and statute-of-limitations, and this Court affirmed.
- In July 2015 Kerns filed a Second Complaint against Tharp raising substantially similar claims (conspiracy, due process/equal protection violations, arguing prosecutorial immunity is inapplicable because conspiracy is a crime).
- Tharp filed preliminary objections asserting improper service and legal insufficiency (prosecutorial immunity, collateral-attack bar, failure to state malicious-prosecution or constitutional claims).
- The trial court sustained the preliminary objections, dismissed the Second Complaint with prejudice, and barred further pro se filings against Tharp without leave under Pa. R.C.P. No. 233.1; Kerns appealed.
- This Court affirmed: it agreed service was defective and the claims were legally insufficient; it rejected Kerns’ arguments about judicial bias, newly discovered evidence (a default judgment against the victim’s mother), and the claim that Tharp was required to file an answer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial bias in dismissal | Trial court was biased against Kerns and dismissed improperly | Trial court acted properly applying procedural and substantive law | Waived/not briefed adequately; appellate review declines to reach claim |
| Consideration of new evidence (default judgment against victim’s mother) | Default judgment is an admission that proves conspiracy implicating Tharp | Default judgment is against the mother only and does not bind Tharp; facts not pleaded in complaint | Evidence, even if proven, does not cure defective service or legal insufficiency; admissions not attributable to Tharp |
| Trial court’s failure to require defendant to answer | New evidence required Tharp to file an answer instead of preliminary objections | Preliminary objections are a permissible alternative to an answer under Pa. R.C.P. No. 1028 | No error: Tharp properly filed preliminary objections; Kerns could have amended complaint but did not |
| Proper service and legal sufficiency of claims (prosecutorial immunity / collateral-attack bar) | Claims are cognizable; conspiracy allegation defeats immunity | Service was improper; prosecutorial immunity and collateral-attack principles bar the claims; statute of limitations and res judicata aspects applicable | Dismissal affirmed: Kerns failed to effectuate proper service and failed to state a claim as a matter of law (prosecutorial immunity and collateral-attack bar apply) |
Key Cases Cited
- Wilson v. Maryland Cas. Co., 105 A.2d 304 (Pa. 1954) (default judgment operates as admission by defendant of well-pleaded facts)
- Balletta v. Spadoni, 47 A.3d 183 (Pa. Cmwlth. 2012) (standard of review for preliminary objections in nature of a demurrer is de novo)
- Krevitz v. City of Phila., 648 A.2d 353 (Pa. Cmwlth. 1994) (standard for relief based on newly discovered evidence)
- Coulter v. Ramsden, 94 A.3d 1080 (Pa. Super. 2014) (appellate arguments not properly developed are waived)
- Boniella v. Commonwealth, 958 A.2d 1069 (Pa. Cmwlth. 2008) (issue-spotting without analysis precludes appellate review)
- Commonwealth v. Kerns, 844 A.2d 1282 (Pa. Super. 2003) (direct-appeal decision affirming Kerns’ conviction)