M. Osbourne, M.D. & the City of Philadelphia Office of the Medical Examiner v. J.M. GreenbergM. Osbourne, M.D. & the City of Philadelphia Office of the Medical Examiner v. J.M. Greenberg
MEMORANDUM OPINION BY JUDGE CEISLER
Marlon Osbourne, M.D., and the City of Philadelphia Office of the Medical Examiner (MEO) (together, MEO) appeal from the October 21, 2021 Order of the Court of Common Pleas of Philadelphia County (Trial Court) denying their Motion for Summary Judgment (Motion) in this mandamus and declaratory action. The MEO argues that Dr. Joshua M. and Mrs. Sandra Greenberg (Parents), parents of the late Ellen R. Greenberg (Victim) and administrators of her Estate, lack standing to bring this action. Alternatively, the MEO argues that neither a writ of mandamus nor declaratory relief is available to compel a medical examiner to change his professional opinion stated in a death certificate. While this Court is acutely aware of the deeply flawed investigation of the Victim‘s death by the City of Philadelphia Police Department (PPD) detectives, the City of Philadelphia District Attorney‘s Office (DAO), and the MEO, we have no choice under the law but to reverse and remand to the Trial Court for the entry of judgment in favor of the MEO. Even so,
I. Background
A. The Initial Investigation
At approximately 6:30 p.m. on January 26, 2011, the 27-year-old Victim was found deceased inside the apartment she shared with her fiance, Sam Goldberg, in the Manayunk neighborhood of Philadelphia. See Reproduced Record (R.R.), Item No. 4(i), Investigation Report, 01/26/2011. The Victim‘s body was fully clothed, slumped against the cabinets in a seated position on the kitchen floor. Id. A knife was protruding from her chest. Id. The Victim sustained a total of 20 stab wounds, including a severe laceration to the top of her skull and stab wounds to the rear of her neck and spine. See R.R., Item No. 4(d), Osbourne Final Report. The Victim also had “[m]ultiple contusions on [the] upper and lower extremities in various stages of resolution.” Id.
The next morning, January 27, 2011, Dr. Osbourne, then an assistant medical examiner, performed an autopsy on the Victim‘s body. R.R., Item No. 4(w), Deposition (Dep.) of Marlon Osbourne, M.D. (Osbourne Dep.), at 14.1 Dr. Osbourne was briefed on the details of the scene by Stephen Olszewski, an investigator with the MEO‘s office who investigated the scene approximately two hours after the Victim‘s body was found. Id. at 15; see also R.R., Item No. 7(a), Olszewski Investigation Report, 4/15/2011 (Olszewski Report), at 1. Upon his arrival in the
To account for the last hours of the Victim‘s life and the circumstances in which her body was discovered, Mr. Olszewski relayed to Dr. Osbourne information that Mr. Goldberg had given to PPD officers. R.R., Item No. 4(w), Osbourne Dep. at 14. Mr. Goldberg told the officers who responded to the 9-1-1 call that he had left the couple‘s sixth-floor apartment to visit their building‘s gym at approximately 4:45 p.m. Olszewski Report at 1. Approximately 45 minutes later, Mr. Goldberg said, he returned to the sixth floor but found the apartment door‘s swing bar lock engaged from the inside. Id. Mr. Goldberg explained that he returned to the building lobby to try to reach the Victim via cell phone calls and text messages. Id. When approximately one hour had passed without a response, Mr. Goldberg said, he decided to enter the apartment by force. Id. Mr. Goldberg stated that he returned to the sixth floor accompanied by a building security guard, later identified as Philip
After taking an initial statement from Mr. Goldberg, PPD officers accompanied him to a police station for further questioning and released him that evening. Id. No summary or other detailed record of that interrogation is included in the record provided to this Court, nor was one made available to experts who later investigated the case (whose findings are summarized below). See R.R., Item No. 4(m), Wecht Report. Furthermore, there is no indication in the record that Mr. Hanton, or any other building staff member, was ever questioned by law enforcement officials. Astonishingly, in a subsequent written declaration, Mr. Hanton stated that he did not accompany Mr. Goldberg to the sixth floor on the night in question and was not present when Mr. Goldberg entered the apartment. See R.R., Item No. 7(j), Hanton Declaration.
Dr. Osbourne and his supervisor at the MEO, Dr. Sam Gulino, later recalled several omissions from Mr. Olszewski‘s initial investigation. Notably, Mr. Olszewski failed to report 10 additional stab wounds in the back of the Victim‘s neck and head, which brought the total number of stab wounds to 20. See R.R., Item No. 4(d), Osbourne Final Report. One of those wounds was deep enough to rupture the dura mater, a thick membrane that envelops the spine. Osbourne Dep. at 48. The top of the Victim‘s scalp also bore a deep incision wound, approximately 6 and one-
Dr. Osbourne initially concluded that the manner of the Victim‘s death was homicide. See R.R., Item No. 7(c), Osbourne Original Report. As a result of his determination, PPD detectives obtained a search warrant identifying various items in the apartment “of evidentiary value in the investigation of a homicide by cutting instrument.” R.R., Item No. 7(d). When the PPD detectives arrived to execute the warrant the day after the Victim was found, they discovered that the kitchen had been scoured and a number of the apartment‘s contents removed. See R.R., Item
In the weeks following the autopsy, Dr. Osbourne obtained new information that prompted him to reconsider his initial determination that the Victim had died by homicide. First, Dr. Osbourne recalled receiving an informal report from Dr. Lucy Rorke-Adams, a neuropathologist, following a brief examination of a piece of the Victim‘s spinal tissue. Id. at 60. By Dr. Osbourne‘s recollection, Dr. Rorke-Adams determined the Victim could have remained sufficiently mobile to inflict further wounds, even after the dura mater surrounding her spinal cord had been pierced. Id. at 61. Dr. Osbourne acknowledged that Dr. Rorke-Adams’ observation of the tissue did not include a histologic or microscopic examination.2 Osbourne Dep. at 60. Because Dr. Rorke-Adams also did not issue a written report on her observations, Dr. Osbourne‘s recollection is the only summary of her findings in the record.3 Id.
In reevaluating his initial determination, Dr. Osbourne also considered new information about the Victim‘s mental health. Osbourne Dep. at 25. Specifically, the Victim had recently begun seeing Dr. Berman, who recalled seeing the Victim on three occasions in the two weeks preceding her death. See Olszewski Report at
Approximately one month after the autopsy was performed, Dr. Osbourne attended a meeting with Dr. Gulino, a representative of the DAO, and two representatives of the PPD. Id. at 27; see also Gulino Dep. at 13. In that meeting, the DAO and PPD representatives discussed with Dr. Osbourne “their interactions with [Mr. Goldberg] and the statement [Mr. Goldberg] gave.” Id. at 26. Dr. Osbourne was told that Mr. Goldberg had broken down the apartment door, and that a security guard had witnessed it. Id. Furthermore, Dr. Osbourne was told that an unnamed investigating officer found the door‘s swing bar lock in a damaged condition consistent with Mr. Goldberg‘s account of a forced reentry. Id. at 74-75. It was the first time that Dr. Osbourne had been called into a meeting to discuss the manner of death listed on a death certificate. Id. at 28.
Based on the information provided in the meeting, Dr. Osbourne reversed his prior medical opinion and determined that the Victim‘s wounds must have been self-inflicted. Consequently, Dr. Osbourne amended the death certificate to indicate that the manner of death was suicide. Id. at 81-82.
Dissatisfied with the investigation into their daughter‘s death, the Parents hired their own outside experts to conduct investigations into the manner of the Victim‘s death. We summarize their findings below.
1. Wecht (2012)
Renowned forensic pathologist Dr. Cyril H. Wecht examined the existing investigation records and issued a report on January 11, 2012. See R.R., Item No. 4(m) (Wecht Report). Dr. Wecht noted that suicides by stabbing are increasingly rare, as persons who die by suicide opt for “simpler choices” such as drugs, hanging, or firearms. Id. In the rare suicide by stabs to the torso, the person will usually remove the clothing first and after a few initial “tentative stabbings” to assess painfulness, death is typically effectuated through a single wound, most likely in the chest. Id. By contrast, the Victim in this case sustained multiple, deep, stab wounds over her clothing. Id. Dr. Wecht also observed that the instrument or instruments that caused the wounds entered her body from different angles and directions. Id. Dr. Wecht explained that this further militated against the conclusion that the victim‘s wounds were self-inflicted. Id.
Dr. Wecht found several other critical flaws and omissions in the materials with which he was provided. Id. Notably, Dr. Wecht found little support in the record to suggest that the Victim possessed the requisite state of mind to commit suicide. She left no note, was not deemed suicidal by her psychiatrist, and “seemed her usual self” when she communicated with her mother and a friend earlier on the day of her death. Id. For these reasons, Dr. Wecht concluded that the manner of the Victim‘s death was “strongly suspicious of homicide.” Id. Dr. Wecht also noted the absence of records from the police station interrogation of Mr. Goldberg. Id. In Dr.
2. Ross (2016, 2017, and 2021)
Dr. Wayne K. Ross, a specialist in forensic pathology and neuropathology, examined the investigation materials and prepared a one-page letter on October 18, 2016. See R.R., Item No. 4(l). Therein, Dr. Ross briefly stated his opinion that, ”to a reasonable degree of medical certainty[,] the manner of [the Victim‘s] death is a homicide.” Id. (emphasis added). In a second report issued January 10, 2017, Dr. Ross explained that his examination of the records revealed “evidence of a stab wound which penetrated the cranial cavity and severed the cranial nerves and brain.” Id. Dr. Ross opined that this wound would have caused the Victim to suffer “severe pain, cranial nerve dysfunction and traumatic brain signs and symptoms.” Id. Dr. Ross also observed marks and bruises on the Victim‘s neck consistent with strangulation. Id. Finally, Dr. Ross noted the “multiple bruises over the [Victim‘s] body” of varying ages, “consistent with a repeated beating.” Id.
On June 1, 2021, Dr. Ross issued a third report after examining newer records. See R.R., Item No. 7(i). The report contains a 60-item list of what Dr. Ross characterizes as “reasons to change the manner of death” from suicide back to the original determination of homicide.4 Id.
Dr. Henry C. Lee, founder of the Henry C. Lee Institute of Forensic Science at the University of New Haven, issued a report on January 29, 2018. See R.R., Item No. 4(n). After examining photographs of the scene, Dr. Lee determined that some of the wounds on the back of the Victim‘s head would have been difficult to inflict herself, given their location. Id. In Dr. Lee‘s view, the bloodstain patterns suggested that the Victim was in a standing position when she sustained some of her stab wounds, but was in the seated position in which she was found when sustaining other wounds. Id. Additionally, Dr. Lee noted the “[m]ultiple contusions” on the Victim‘s body, “in various stages of healing,” as well as the sheer number of wounds that the Victim sustained on the day of her death. Id. In light of these details, Dr. Lee concluded that “[t]he number and type of wounds and bloodstain patterns observed are consistent with a homicide scene.” Id.
Detective Scott Eelman, a specialist in crime scene reconstruction, conducted an analysis of investigation materials and issued a report on April 14, 2017. See R.R., Item No. 4(o). Although Detective Eelman declined to make a general determination regarding the manner of the Victim‘s death, he called attention to several conspicuous details in the investigation materials. The bulk of his report is devoted to the bloodstain evidence in the scene photographs, which, in Detective Eelman‘s view, “is inconsistent with [the] position in which [the Victim] was found.” Id. Dr. Eelman explained that the bloodstains on the Victim‘s head branch out in several directions, indicating that “her head was in different positions as this blood flowed.” Id. For example, one “significant” flow pattern moves across her cheek and “rearward into the hairlines below and behind the left ear.” Id. Such a movement of blood would be contrary to gravity, given that the Victim appeared to have died with her head slumped forward. Id.
In addition to the bloodstain evidence, Detective Eelman examined photographs of the apartment door. While acknowledging some damage to the door component of the swing bar lock, Detective Eelman noted that the door jamb component of the lock did “not appear to show any damage.” Id. Detective Eelman also noted the absence of debris on the floor from the damaged swing bar lock. Id.
Like Drs. Wecht, Ross, and Lee, Detective Eelman drew attention to several glaring omissions from the investigative materials provided to him. For example, no photographs appear to have been taken of the refrigerator, kitchen pantry, kitchen ceiling, “or any portion of wall between the kitchen and the front door.” Id. Additionally, Detective Eelman noted the absence of any photographs of Mr. Goldberg or of his footwear or clothing. Id.
BioMx, a Virginia-based consulting firm specializing in computational biomechanics and accident reconstruction, analyzed case materials and issued a report on May 12, 2021. See R.R., Item No. 7(f). Its analysts determined that the wounds to the Victim‘s head and neck were “consistent with focalized stabbing by an assailant,” rather than self-infliction. Id. They further determined that the wounds inflicted on her chest and abdomen would result in impaired motor function, precluding “repeatable sustained motions of the upper extremities, such as in purposefully stabbing [oneself].” Id. Finally, the analysts observed the contusions across the Victim‘s body and determined that they were “consistent with assailant-oriented trauma and not with self-inflicted injuries.” Id. The analysts concluded that “[the Victim‘s] manner of death is not biomechanically consistent with suicide.” Id.
C. The 2019 Reexamination and Subsequent Developments
As a result of the additional expert reports, the Parents made two attempts to persuade government officials to reopen the investigation. The first was in 2018, when the Pennsylvania Office of Attorney General (OAG) agreed to reexamine the case.5 R.R., Item No. 4(i), OAG E-mail to Stephanie Farr. Consequently, the OAG
The second attempt was initiated on June 19, 2019, when the Parents’ attorney wrote a letter to Dr. Gulino detailing the experts’ findings. See R.R., Item No. 7(h). The letter noted that the experts were unanimous in their opinion that the Victim did not die by suicide, and urged Dr. Gulino to undertake “a closer examination and more thorough investigation” of her death. Id. at 6. In response to the letter, Dr. Gulino instructed Dr. Emery, an MEO examiner who was trained as a neuropathologist, to examine a specimen from the Victim‘s spinal cord. R.R., Item No. 4(v), Gulino Dep. at 74.
In Dr. Emery‘s view, the lack of such a vital reaction could be explained by four distinct possibilities. First, the blows could have been inflicted just a moment before death, meaning that the Victim‘s body did not have time to react before expiring. Id. at 33. Second, the blows may have been inflicted moments after the Victim had expired, which would have precluded hemorrhaging or other vital responses. Id. Third, the damage could have occurred during Dr. Osbourne‘s autopsy on the morning after the Victim‘s death. Id. Lastly, the injury may have been simply too minor to cause reactions such as hemorrhaging or cellular death. Id. at 34.
Based on her findings, Dr. Emery declined to draw a firm conclusion as to the manner of the Victim‘s death. Id. at 35. Dr. Emery explained that, if hemorrhaging had not occurred because the injuries were insufficiently severe (the fourth possibility described above), then there could have been “minimal pain,” and the Victim‘s motor skills would not have been severely impaired. Id. at 36-37. Thus, Dr. Emery opined that it was not impossible that the wounds were self-inflicted. Id.
Reviewing Dr. Emery‘s findings, Dr. Gulino concluded that he did “not have sufficient reason” to reverse Dr. Osbourne‘s determination that the Victim had died by suicide. Gulino Dep. at 75. Dr. Gulino explained that, in his experience, damage to the upper part of the spine such as that observed by Dr. Emery was a common byproduct of autopsy procedures. Id. at 69. Furthermore, Dr. Gulino explained that homicides by cutting instruments tend to result in defensive wounds on the hands and forearms, which were not evident on the Victim‘s body. Id. at 33. By contrast, the “clusters” of wounds on her chest and neck were, in Dr. Gulino‘s view, more consistent with the hesitation wounds commonly inflicted during suicide. Id. at 70.
On October 15, 2019, the Parents, in their capacity as administrators of the Victim‘s Estate, filed a Complaint in the Trial Court, seeking mandamus and declaratory relief. R.R., Item No. 4(b). Count I sought a writ of mandamus compelling the MEO to revise the Victim‘s death certificate to indicate that the manner of death “[c]ould not be determined.” Id. ¶ 74. Therein, the Parents alleged that “the information recently supplied to the [MEO] . . . in addition to that information already known to the [MEO] in 2011, establish as a matter of law” that suicide was not the appropriate manner of death to list on the death certificate. Id. ¶ 72. The Parents further alleged a variety of harms, including the evidentiary value that the death certificate would have in “a claim or dispute involving [the Victim‘s] Estate“; the stigma of suicide, which “deprives surviving family members of the closure and peace of mind to which they are otherwise entitled“; the impact of the death certificate on “State and national mortality statistics” as well as on “medical
During the course of pre-trial discovery, the parties submitted several exhibits as evidence. One was a written declaration from Mr. Hanton, the security guard who was on duty at the apartment building on the night of the Victim‘s death. R.R., Item No. 7(j), Hanton Declaration. Contrary to Mr. Goldberg‘s account, Mr. Hanton maintained that he did not escort Mr. Goldberg to the sixth floor, nor was he present when Mr. Goldberg forced open the apartment door. Id. ¶ 7. The Parents also presented still images from surveillance footage, which confirmed that Mr. Goldberg went up to the apartment alone. R.R., Item No. 7(k), Security Video Still (Jan. 25, 2011, 6:32 p.m.). Additionally, the Parents submitted a photograph of the inside of the apartment door, taken on the night of the Victim‘s death. R.R. Item No. 7(b). The photograph shows that the screws attaching the swing bar lock to the door were dislodged, but that the door appears to be otherwise undamaged, consistent with Dr. Ross‘s and Detective Eelman‘s analyses. See R.R., Item No. 7(b).
In response, the MEO submitted a written declaration from Dr. Emery, in which she reiterated that she could not form an opinion as to the manner of death based on her examination of the Victim‘s spinal tissue. R.R., Item No. 4(r), ¶ 9. Dr. Emery also stated that she was unable to definitively determine why there was no sign of hemorrhaging around the injuries to the Victim‘s spine. Id. ¶ 8.
On October 21, 2021, The Trial Court issued its Order denying the Motion, without further explanation. See R.R., Item No. 1. In its subsequent
Regarding the Parents’ assertions of the right to mandamus and declaratory relief, the Trial Court held that both were available. Trial Court Op., 6/2/2022, at 15. The Trial Court explained that, while mandamus may not be used to reverse an official‘s proper use of discretionary powers, it does permit a court to intercede “to correct the improper exercise of discretion.” Id. at 10 (unpaginated). In the specific context of death investigations, the Trial Court noted, the responsible official “cannot act capriciously or arbitrarily[,] and his discretion is always subject to review.” Id. (citing Marvin v. Monroe County, 35 A.2d 781, 782 (Pa. Super. 1944)). As for declaratory relief, the Trial Court held that the potential impact of the death certificate on a wrongful death action constituted the “ripening seeds of a controversy” relating to the “invasion or threatened invasion” of Parents’ legal rights. Id. at 13 (citing Ronald H. Clark, Inc. v. Township of Hamilton, 562 A.2d 965, 967 (Pa. Cmwlth. 1989)).
Following the Trial Court‘s decision, the MEO petitioned this Court for leave to file an interlocutory appeal, which we granted on February 4, 2022. Our February 4, 2022 Order stated that we would consider whether the Parents, as administrators of the Victim‘s Estate, “have standing to seek court-ordered revision of the manner of their adult child‘s death where the harm they identify is the alleged stigma of
II. Issues
On appeal, the MEO argues that the Parents lack standing to file this action in their capacity as administrators of the Victim‘s Estate. In the alternative, the MEO asserts that neither mandamus nor declaratory judgment can be used to compel the MEO to amend the Victim‘s death certificate. Consequently, the MEO argues, the Trial Court erred in denying its Motion.11
III. Discussion
As a threshold matter, standing must be resolved before a court can proceed to the merits of an action. Interest of K.N.L., 284 A.3d 121, 137 (Pa. 2022). The issue of standing relates to a litigant‘s capacity to pursue a particular legal action and
requires that the litigant be adversely affected, or aggrieved, in some way. Id. at 136. In determining whether a party is aggrieved, courts consider whether the litigant has a substantial, direct, and immediate interest in the matter. Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016). For the interest to be substantial, the party‘s concern in the outcome of the challenge must surpass the common interest of all citizens in procuring obedience to the law. Id. The interest is direct if it can be demonstrated that the matter caused harm to the party‘s interest. Id. Finally, the concern is immediate if the causal connection between the action complained of and the injury to the party challenging it is not remote or speculative. Id.
Here, the MEO asserts that the Parents lack standing because they have failed to identify any legally recognized form of harm as a result of the MEO‘s refusal to amend the death certificate. The MEO argues that the types of harm alleged by the Parents fall into two categories: (1) the effects of “the alleged stigma of suicide,” and (2) the hindrance of further litigation, whether civil or criminal, relating to the Victim‘s death. MEO‘s Br. at 13. According to the MEO, harm of the first category fails to confer standing because this Court has held, in Nader v. Hughes, 643 A.2d 747 (Pa. Cmwlth. 1994), that the “stigma of suicide” is insufficient to confer standing.12 The MEO argues that harms of the second category fail to confer
In response, the Parents argue that the MEO mischaracterizes their claims as focused on the stigma of suicide, which, the Parents maintain, is “neither the primary nor the sole factor motivating this litigation.” Parents’ Br. at 22. The Parents assert that they are indeed aggrieved because the death certificate prevents the Victim‘s Estate from pursuing various forms of legal relief, including: an action seeking “damages for [the Victim‘s] wrongful death,” should a perpetrator ever be identified; court-ordered restitution following a criminal conviction of the perpetrator; a claim for damages against the MEO; and payment from the Pennsylvania Victims Compensation Fund. Id. at 20. Furthermore, the Parents argue that they have standing based on their desire to seek justice through the reopening of the criminal investigation into their daughter‘s death. Id. at 24.
The Trial Court agreed with the MEO that “the social stigma of suicide” was insufficient to confer standing pursuant to Nader. Trial Ct. Op., 6/8/2022, at 7 (unpaginated). The Trial Court further held that any interest that the Parents have in a reopened criminal investigation was too speculative to confer standing. Id. However, the Trial Court nevertheless concluded that the Parents have standing because the death certificate, as currently written, “would devastate any wrongful death action, insurance claim, or any claim against city officials for emotional or financial injuries as a result of alleged misconduct.” Id. In support, the Trial Court cited this Court‘s observation in Chadwick v. Dauphin County Office of the Coroner, 905 A.2d 600, 606 n.9 (Pa. Cmwlth. 2006), that a “death certificate would have evidentiary value in a claim dispute.” Trial Court Op., 6/8/2022, at 8 (unpaginated). In conclusion, the Trial Court observed that it “cannot think of any party who could possibly have standing if not the Estate of the deceased.” Id. at 9 (emphasis in original).
In order to evaluate the Parents’ claim that the death certificate prevents the Estate from pursuing various forms of legal relief, it is necessary to examine the legal soundness of each claim of potential relief. For the following reasons, our examination leads us to conclude that no form of relief identified by the Parents suffices to confer standing in this matter.
A. Wrongful Death
Instantly, the Parents argue that “the [MEO‘s] refusal to designate [the Victim‘s] murder accurately in her death certificate has barred the Estate for all practical purposes from seeking damages for [the Victim‘s] wrongful death.” Parents’ Br. at 24. Were the Parents to bring a wrongful death action, they explain, the fact “that the manner of death remains suicide in [the Victim‘s] official certificate of death” would not only “effectively bar any such action,” but “potentially subject [Parents] to countersuit for wrongful use of civil proceedings.” Parents’ Br. at 28. Agreeing, the Trial Court found it “disingenuous to suggest that the [Victim‘s] Estate in a wrongful death suit could possibly recover when the [d]efendant could produce the [Victim‘s] death certificate stating that she had died by suicide.” Trial Ct. Op, 6/2/2022, at 13 (unpaginated). Thus, the Trial Court held that “a [d]eclaratory [j]udgment that the death certificate is erroneous, or [a judgment] that the [MEO] abused his discretion in amending the certificate may be appropriate.” Id. at 14.
The law does not support the Trial Court‘s determination that any interest that the Parents may have in a potential wrongful death action is sufficient to confer standing. As noted, a wrongful death plaintiff has two years from the time of death to commence such an action, which means that the latest that the Parents could have filed suit was on or about January 26, 2013. Since it is settled Pennsylvania law that the discovery rule is not applied to wrongful death cases,13
B. Criminal Restitution
Instantly, the Parents argue that the death certificate has deprived the Estate of its status as a crime victim, “thereby denying [it] the ability to seek or obtain criminal restitution.” Parents’ Br. at 20. This argument is unavailing. As the Trial Court aptly noted, the Parents’ interest in reopening the investigation and in finding their daughter‘s purported killer are too speculative to constitute aggrievement by
C. Insurance Claims
When a death certificate is offered as evidence in a dispute involving insurance proceeds, the contents of the certificate may be admitted “insofar as they would be admissible if the official preparing the same had been called as a witness.” Pittsburgh Nat‘l Bank v. Mut. Life Ins. Co. of New York, 417 A.2d 1206, 1209 (Pa. Super. 1980). As noted, this Court has opined in Chadwick that an “official death certificate would have evidentiary value in a claim dispute,” if life insurance coverage turned “on whether the policyholder‘s death was caused by accident or by self-destruction.” 905 A.2d at 606 n.9.
In support of its denial of summary judgment, the Trial Court opined that the death certificate as currently written “would devastate any . . . insurance claim.”
D. Victims Compensation Fund Claims
The Parents also argue that the Estate is aggrieved because it has been denied the ability to seek or obtain payment from the Victim‘s Compensation Fund. Section 701(a) of the Crime Victims Act (CVA)14 provides, in relevant part, that the following persons shall be eligible for payment from the Victims Compensation Fund: a direct victim; an intervenor; a surviving spouse, a parent, or child of a deceased direct victim or intervenor; any other individual dependent for principal support upon a deceased direct victim or intervenor; any person who assumes the obligation or who pays for the crime scene cleanup, funeral, or burial expenses incurred as a direct result of the crime; hospitals and certain other health care providers; and certain persons eligible for counseling.
Civil actions against government officials are governed by
Instantly, the Parents argue that the death certificate “is considered prima facie evidence of the fact of death that can be introduced in court as evidence of compelling value to a jury” in an action brought for “financial and emotional injuries caused by the intentional misconduct of City officials.” Parents’ Br. at 27-28 (citing
We cannot agree with the Parents’ arguments. It must be reiterated that the Parents have brought the instant action in their capacity as Estate administrators. If the death certificate‘s impact on other litigation confers standing on the Parents in this matter, that litigation would have to involve harm to the Estate. Yet, any financial or emotional injuries caused by the MEO‘s purported misconduct in this case would have to be sustained by the Parents themselves. As explained previously, there is no indication in the record, nor do the Parents specifically allege, that the Estate‘s finances have been impacted by the MEO‘s determination. Furthermore, the Estate cannot experience emotional harm, as it represents a deceased person.16 The Parents’ tort claim against the MEO does not support their argument, because they have initiated that action in their personal capacity as well as in the Estate‘s behalf. Indeed, the Complaint‘s single count in that case alleges intentional infliction of emotional distress, on the ground that the MEO‘s conduct has caused
F. The Death Certificate‘s Impact on Present and Future Litigation
Finally, we have found no legal support for the Parents’ assertion that the manner of death identified on the death certificate would be dispositive of any future legal proceeding. As our Supreme Court has held, the finding of a MEO “is merely advisory to the public authorities charged with the administration of the criminal law. It is only a preliminary investigation and not a trial on the merits. Its finding is binding on no one as a judgment.” Com. ex rel. Czako v. Maroney, 194 A.2d 867, 868 (Pa. 1963) (emphasis added). As a consequence, prosecuting authorities are free to pursue criminal charges regardless of the conclusion stated on a death certificate. See, e.g., Com. v. Tallon, 387 A.2d 77, 83 (Pa. 1978) (affirming a voluntary manslaughter conviction notwithstanding the coroner‘s death certificate attributing the victim‘s death to natural causes). Moreover, as the Trial Court aptly noted, “there is no guarantee that the [PPD], the [DAO], or the [OAG] will reopen the case or pursue [the Victim‘s] killer,” even if the death certificate were amended. Trial Ct. Op., 6/8/2022, at 7-8 (unpaginated).
There is no question that death certificates may have evidentiary value in civil or criminal proceedings. Yet, that value‘s high degree of variability renders the
The mere possibility that future events might occur that could affect a party is insufficient to establish the direct and immediate interest required for standing. Ams. for Fair Treatment, Inc. v. Phila. Fed‘n of Teachers, 150 A.3d 528, 536 (Pa. Cmwlth. 2016). In this case, even if there were an action that the Parents could pursue as Estate administrators, the causal connection between the alleged conduct and the outcome of that litigation is too tenuous to render the Parents’ interest direct or immediate. See William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 283 (Pa. 1975) (noting that “the possibility that an interest will suffice to confer standing grows less as the causal connection grows more remote“).
IV. Conclusion
The facts surrounding this matter are extremely disturbing and the Parents’ tireless efforts over the past 12 years to learn exactly what happened to their daughter on the evening of January 26, 2011, warrant our sincere sympathy. The experts they enlisted have all raised serious factual questions about Dr. Osbourne‘s and Dr. Gulino‘s conclusions, and even the MEO now concedes that there “is no dispute that evidence in the record could support other conclusions about the manner of death.” MEO‘s Reply Br. at 1 (emphasis in original).
ELLEN CEISLER, Judge
Judge Wallace did not participate in the decision of this case.
| Marlon Osbourne, M.D. and the City of Philadelphia Office of the Medical Examiner, Appellants | : : : : | |
| v. | : : | No. 1461 C.D. 2021 |
| Joshua M. Greenberg and Sandra Greenberg, Administrators of the Estate of Ms. Ellen R. Greenberg | : : : |
ORDER
AND NOW, this 13th day of September, 2023, the October 21, 2021 Order of the Court of Common Pleas of Philadelphia County (Trial Court) in the above-captioned matter is hereby REVERSED. The case is remanded to the Trial Court for the entry of judgment in favor of Marlon Osbourne, M.D., and the City of Philadelphia Office of the Medical Examiner.
Jurisdiction relinquished.
ELLEN CEISLER, Judge
| Marlon Osbourne, M.D. and the City of Philadelphia Office of the Medical Examiner, Appellants | : : : : | |
| v. | : : | No. 1461 C.D. 2021 |
| Joshua M. Greenberg and Sandra Greenberg, Administrators of the Estate of Ms. Ellen R. Greenberg | : : : | Argued: November 15, 2022 |
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE McCULLOUGH
FILED: September 13, 2023
Because I believe Joshua M. Greenberg and Sandra Greenberg, as administrators of their daughter, Ellen R. Greenberg‘s (Decedent) estate (Estate), have standing to seek a court-ordered revision of the manner of death listed on Decedent‘s death certificate, I would affirm the trial court.
Standing to bring a suit is a prerequisite for a person to obtain a judicial resolution of a dispute. It is well established that for a person to have standing, he or she must be aggrieved by the matter being challenged. William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975); Nader v. Hughes, 643 A.2d 747 (Pa. Cmwlth. 1994). “Aggrieved” is defined as having an immediate, direct, and substantial interest in the challenged matter beyond the interest of an individual member of the general public. Citizens for State Hospital v. Commonwealth, 553 A.2d 496 (Pa. Cmwlth. 1989). The party must demonstrate a “sufficiently close causal connection between the challenged action and the asserted injury to qualify the interest as ‘immediate’ rather than ‘remote.‘” William Penn Parking Garage, 346 A.2d at 286.
Unlike the Majority, I believe the Estate has demonstrated a sufficiently close causal connection between the Medical Examiner‘s Office‘s (MEO) refusal to amend Decedent‘s death certificate and the Estate‘s inability to seek mandatory monetary compensation, and its corollary ability to seek civil redress for Decedent‘s death.
First, because suicide is not a crime, Decedent has been deprived of her status as a victim, thereby denying her Estate the ability to seek or obtain criminal restitution or other compensation to which it would be entitled under
The Estate has established that the only impediment to the investigation and prosecution of Decedent‘s murder is her death certificate, which, despite all the evidence, still designates her manner of death as suicide. MEO‘s refusal to correct
The erroneous death certificate also precludes the Estate from obtaining civil damages under the
Here, the Estate‘s interest is direct and immediate, as a murder conviction would affect the ability of the Estate to bring a wrongful death suit as well as its outcome.
I must also dissent from the portions of the Majority Opinion that conclude the Estate‘s interest in a potential wrongful death action is insufficient to confer standing because the two-year statute of limitations ran on January 26, 2013. The Majority is correct that the discovery rule is inapplicable to a wrongful death action. See Anthony v. Koppers Company, Inc., 436 A.2d 181 (Pa. 1981). However, the doctrine of fraudulent concealment, which does apply to wrongful death actions, provides that a defendant may not invoke the statute of limitations where, “through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.” Krapf v. St. Luke‘s Hospital, 4 A.3d 642, 650 (Pa. Super. 2010). See also Fine v. Checchio, 870 A.2d 850 (Pa. 2005); Nesbitt v. Erie Coach Co., 204 A.2d 473 (Pa. 1964); Molineux v. Reed, 516 Pa. 398 (1987); Gravinese v. Johns-Manville Corp., 471 A.2d 1233, 1238 (Pa. Super. 1984). This doctrine is broad and encompasses both intentional fraud and unintentional deception. The plaintiff carries the burden of proof and must show fraudulent concealment by “clear, precise, and convincing evidence.” Krapf, 4 A.3d at 650. Unlike the discovery rule, the doctrine of fraudulent concealment may extend to actions taken by a defendant after the date of death. (See, e.g., Krapf, where the plaintiffs relied on death certificate issued by the defendant after the decedents’ death).
In a wrongful death action, the murderer(s) should be precluded from raising the statute of limitations because he/she has, in effect, by concealing his/her identity, and not coming forward and admitting to the crime, has foreclosed the Estate‘s ability to identify him/her within the statute of limitations. I submit that, applying the fraudulent concealment doctrine, where a wrongful death claim is based on murder, the statute of limitations begins to run on the date the victim‘s survivors
Finally, the Majority, relying on Nader, holds that a claim of societal stigma of suicide is insufficient to confer standing to seek revision of the manner of death on the death certificate. However, I do not agree that Nader is applicable here. Nader is distinguishable because (1) the Estate‘s claim is not one based solely on removing the stigma of suicide; and (2) the father in Nader did not argue that he had standing based on his inability to seek mandatory monetary compensation, or civil redress for his son‘s death, as the Estate argues here. Unlike in Nader, the Estate has established that a correction from suicide to homicide would have palpable consequences on its ability to obtain restitution under the Restitution Statute and civil damages under the Wrongful Death Act. In that respect, Nader does not involve the same issues or nuances at play here, i.e., allegations that a corrected certificate of death to homicide would be the catalyst for opening a criminal investigation into Decedent‘s suspicious death and untether the Estate‘s right to receive recompense for Decedent‘s death.¹ Rather, the father in Nader based his standing argument only
For the above reasons, I would conclude that the trial court did not err when it found that the Estate has standing to litigate the current matter and, therefore, I respectfully dissent.
PATRICIA A. McCULLOUGH, Judge
Notes
R.R., Item No. 4(i) (punctuation modified). In response, the Parents asserted that, “long before the OAG obtained access to any information purportedly extracted from [the Victim‘s] computer, the chain of custody had been broken because [the Victim‘s] computers were improperly removed from her apartment and in the possession of third parties days after her death.” R.R., Item No. 4(g), Parents’ Reply to New Matter ¶ 87.Following the initial 2011 investigation carried out by the [PPD], our office received this case in 2018 on a conflict referral from the [DA‘s] Office. We conducted our own thorough investigation to determine a manner of death—interviewing the chief medical examiner of Philadelphia and the medical examiner who performed the autopsy, meeting with the family‘s representatives, and reviewing information they provided to our attorneys, among other steps. Among the additional evidence we reviewed were web searches for “methods of committing suicide,” “quick death” and “depression done on [the Victim‘s] personal computer in the weeks before her death, and text messages between [the Victim] and a family member on the day of her death showing the decedent in serious mental distress. Our Office has concluded that this evidence supports “suicide” as the manner of death; accordingly, we have communicated our findings to the family through its representatives and have closed this investigation.
It should be noted that none of the above forms of harm indicate any form of injury to the Estate that our law recognizes. As discussed above, this Court has held that the purported stigma of suicide is insufficient to confer standing. Nader, 643 A.2d at 753. Regarding the concern for criminal justice, vital statistics, or other areas of public policy, the Parents do not explain how their or the Estate‘s interest is any more substantial than the general “interest of all citizens in procuring obedience to the law.” Markham, 136 A.3d at 140; see also Pittsburgh Palisades Park, LLC v. Com., 888 A.2d 655, 660 (Pa. 2005) (explaining that the standing inquiry requires a party to show a “peculiar, individualized interest . . . that is greater than that of” citizens generally) (emphasis added).