Schemberg v. Smicherko, 85 A.3d 1071

Plaintiff Schemberg, a Kutztown police officer, sues Smicherko for negligence and negligence per se.
Around midnight, Smicherko urinated in public; plaintiff believed it violated local ordinances and state law.
Smicherko fled; plaintiff pursued and apprehended him in a poorly lit area, injuring his right leg.
Plaintiff claims Smicherko violated 18 Pa.C.S.A. § 5104 by fleeing to prevent a lawful arrest.
Trial court granted Smicherko’s preliminary objections and dismissed the complaint with prejudice; appeal followed.
Appellate court reverses and remands, holding §5104 can support negligence per se and duty can be imposed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §5104 can support negligence per se claim	Schemberg contends §5104 protects a specific group (officers) and was violated.	Smicherko argues §5104 protects the public generally, not a specific group.	Yes; §5104 can support negligence per se.
Whether plaintiff can prove ordinary negligence and duty	Duty exists and defendant’s conduct foreseeably caused harm.	No duty due to lack of special relationship and no direct contact; no proximate cause.	Duty exists; causation to be determined by factfinder.

Mahan v. Am-Gard, Inc., 841 A.2d 1052 (Pa. Super. 2003) (four-part negligence per se test)
Commonwealth v. Lyons, 555 A.2d 920 (Pa. Super. 1989) (flight can constitute resisting arrest under §5104 in dangerous circumstances)
Lindstrom v. City of Corry, 763 A.2d 394 (Pa. 2000) (duty factors for governmental liability; police pursuit context)
Congini by Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983) (statutory purpose and negligence per se applicability)
Commonwealth v. Miller, 475 A.2d 145 (Pa. Super. 1984) (interpretation of resisting arrest elements under §5104)
In re Woodford, 616 A.2d 641 (Pa. Super. 1992) (flight in certain contexts discussed relative to Lyons)
Zanine v. Gallagher, 497 A.2d 1332 (Pa. Super. 1985) (police officer injury in line of duty and proximate cause considerations)