The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Kane, :
Appellant :
: No. 862 C.D. 2020
v. :
: Submitted: August 6, 2021
Edmond Pisani, Jr. :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 24, 2022
Vincent Kane (Kane) appeals from the May 28, 2020 order of the Court
of Common Pleas of Delaware County (trial court), granting summary judgment in
favor of Detective Edmond Pisani, Jr. (Detective Pisani) on Kane’s claim against him
for intentional interference of contractual relations. Upon review, we affirm.
Background
In an apt and able fashion, the trial court set forth the background and
factual gist of this case as follows:
This case was initiated on March 5, 2019, when [Kane]
filed the written complaint. The complaint in this matter
related to a defendant’s right in a criminal proceeding to
inspect, examine, and test evidence prior to trial [and]
raised one count [against Detective Pisani]—tortious
interference with contractual relations.
....
[This matter concerns] an underlying criminal case against
[Kane] in which [Detective Pisani] was the lead detective.
[See Commonwealth v. Kane (Del. Cnty, CP-23-CR-702-
2017, filed April 20, 2018) (unreported), slip op. at 5-6, 23-
24 (Kane I), aff’d, 210 A.3d 324 (Pa. Super.) (Kane II),
appeal denied, 218 A.3d 856 (Pa. 2019)]. It is integral to
this case to note that [Detective Pisani] was hired as an
employee, and remains as such, by the Delaware County
Office of the District Attorney in 2010 as a Criminal
Investigation Detective [] and that he is also a certified
Forensic Examiner. [Detective Pisani] was the Affiant for
the Affidavit of Probable Cause for [the] arrest of [Kane].
On September 22, 2016, Villanova University Police turned
over to the Delaware County Criminal Investigation
Division (CID) a cell phone that had been found in a
women’s restroom. [Detective Pisani] was the [d]etective
assigned to this case and was the [d]etective responsible for
conducting a forensic examination of the cellular telephone.
[Detective Pisani’s] investigation led to him identifying
[Kane] as the owner of the cellular telephone. [Detective
Pisani], during his investigation of the cellular telephone
and in his official capacity, discovered pornographic videos
on the phone that [Kane] had secretly recorded at Villanova
University and Cardinal O’Hara High school bathrooms.
[Detective Pisani] was able to obtain a search warrant for
external hard drives that were located at [Kane’s] home and,
subsequently, additional pornography was found on a
personal laptop and home computer that was owned or used
by [Kane].
Based upon the investigation of the cellular telephone and
the external hard drives, on October 26, 2016, [Detective
Pisani] authored . . . the criminal complaint against [Kane].
On March 30, 2017, an offer was proffered to [Kane’s]
criminal attorney from the Delaware County [Assistant]
District Attorney [(ADA)] prosecuting [Kane’s] criminal
case, Christopher Boggs (ADA Boggs). In the offer, which
was transmitted via email, ADA Boggs states:
2
All of the discovery is ready to be viewed in
[the] CID. To view the discovery all you need
to do is contact the detectives on the case and
give them some dates that you are free to come
in. Once they confirm with you a date, please
let me know. I will make sure that when you
come, there will be a packet with all of the
discovery that does not contain contraband,
that you may take with you that day. The
forensic report with contraband and all the
digital discovery with contraband must be
viewed in [the] CID. I encourage you to bring
an expert with you to review the materials. If
you do, [he/she] must bring [his/her] own
equipment to do [his/her] own examination.
[Kane’s] [c]ounsel was further advised that the contacts
regarding viewing the discovery in [the] CID were
[Detective Pisani] and his supervisor, Detective Ken Bellis
[(Detective Bellis)].
On September 11, 2017, computer forensic experts, Loehrs
& Associates (Loehrs)[,] were retained to provide their
expertise in the underlying criminal case. Loehrs was paid
ten thousand dollars ($10,000.00) to produce an expert
report to use at [Kane’s] trial. A contract with Loehrs,
which took the form of a letter engagement, was signed on
September 11, 2017, by [Kane].
Loehrs was advised prior to arriving on location at [the]
CID that [it] were required to use [the] CID computers on
the days of analysis, as this was standard practice. Loehrs
was also advised that [its] request to have the evidence
shipped to Arizona for review was denied. The request of
Loehrs to have the evidence shipped was denied by
[Detective Pisani’s] supervisor[, Detective Bellis,] and not
by [Detective Pisani] himself. [Detective Pisani’s]
supervisor also made the decision that Loehrs would be
limited to four (4) hours a day investigation time. This was
also brought to the attention of ADA Boggs.
3
Michelle Bush [Bush], who was the investigator Loehrs
sent to [the CID], was not supervised by [Detective Pisani]
in any way during her examination. [Detective Pisani] did
not set up the computer that [] Bush used to conduct the
examination. [] Bush arrived at the CID, utilized the
computers and equipment provided by [the] CID, []
conducted whatever examination she was able to
accomplish in the hours set forth and established, and she
did not return for further investigations.
On November 14, 2017, two weeks before the scheduled
criminal trial date, [Kane’s] criminal attorney filed a
Motion to Compel based upon the belief that the defense
should have been able to bring [its] own computer to do the
forensic examination and that [it] should not have been
restricted to four (4) hours examination time a day. During
the argument on [the motion], the criminal attorney for
[Kane] argued to the [] judge that he interpreted the email
from ADA Boggs to mean that Loehrs could bring [its] own
computer laptop with [its] forensic software already loaded
on to it. [However, Kane’s counsel] did not confirm this
interpretation with ADA Boggs or [Detective Pisani].
[Detective Pisani] testified that, in his experience, all the
defense experts were required to use the CID computer
because child pornography is controlled contraband and
there would be no way to ensure that [the] contraband did
not leave the investigation room. [Kane’s counsel] also
claimed that the CID equipment was antiquated and
incompatible hardware. The defense for [Kane] produced a
declaration from Loehrs examiner, Bush, to substantiate
[its] claim.
The Motion to Compel was heard by [a judge in the
criminal division in the court of common pleas] on
November 20, 2017. The decision by the [c]riminal [c]ourt
found that ADA Boggs had informed [Kane] in its March
30th letter that an expert could come to [the] CID for the
examination, yet it was not until five and a half months later
that Loehrs’ examiner[,] Bush[,] appeared. The [c]riminal
[t]rial [j]udge also found that the expert had to use the
computer provided by [the] CID and, that if [it] wanted to
conduct further examination, [it] could do so before the
scheduled trial date of November 28, 2017. [Ultimately, the
4
criminal court denied Kane’s Motion to Compel. See
Kane I, slip op. at 5-6, 23-241].
1
In relevant part, the criminal court explained that Kane had been granted two continuances
while he hired, through the assistance of his father, two computer forensic experts. According to
the criminal court, one expert resigned, and the record does not reflect what transpired with the
other expert. Eventually, Kane secured the services of a third computer forensic expert, Loehrs.
Kane’s counsel at that time then filed a motion to withdraw, which was later granted, and the
Motion to Compel, alleging “that the Commonwealth did not provide [Kane’s] chosen forensic
expert, Loehrs [] of Tucson, Arizona[,] adequate time, access, and the specialized equipment it
considered necessary to perform its analysis of the electric evidence.” Kane I, slip op. at 5. In the
Motion to Compel, Kane’s counsel requested the criminal court “to compel the Commonwealth to
create and provide mirror forensic copies of [Kane’s] cellphone, desktop computer, and external
hard drive.” Id. In detailing the procedural history of the criminal case, the criminal court
continued:
On September 12, 2017, a representative of Loehrs made
arrangements to view the electronic evidence on October 3 & 4, 2017
in the CID offices. Loehrs was advised that [it] would be allowed
four hours of time each day to conduct [its] examination. A Loehrs
representative replied that the time afforded would be inadequate and
asked that the Commonwealth ship the evidence to a secure
government facility in Arizona. Detective Pisani responded that this
request would not be accommodated and that the original evidence
would be available for viewing only at [the] CID offices. [] Bush, a
Loehrs employee, arrived at the CID offices on October 3, 2017. In
an affidavit attached to the [M]otion to [C]ompel, [] Bush attested that
she was unable to complete her forensic analysis and claimed that this
was due to the fact that she “had to install software drivers and
applications needed for basic operation and essential functions of the
examination . . . and specialized forensic tools and licensing for the
purpose of conducting [her] forensic examination.” [] Bush described
her difficulties in completing her task at great length and claimed that
Detective Pisani had “unrestricted access to [her] work product for
several hours.” To summarize, she complained that she was offered
inadequate, unsophisticated equipment and inadequate time and
access to complete her task. A hearing was convened on November
20, 2017. The Court ruled that the evidence would be made available
to [Kane’s] expert in the CID offices for immediate inspection.
Loehrs could choose to use its own tools or to use the tools that were
available in [the] CID. The trial date would not be continued.
(Footnote continued on next page…)
5
[Kane] was subsequently convicted of five counts of
invasion of privacy, three counts of possession of child
pornography, and two counts of criminal use of
communication facilities following his non-jury trial on
(continued…)
Id. at 5-6.
In its Pa.R.A.P. 1925(a) opinion, the criminal court determined that it did not err in denying
Kane’s request for a continuance or the Motion to Compel, reasoning as follows:
[Kane’s] [M]otion to [C]ompel was scheduled for a hearing on
November 20, 2017. At the November 20, 2017 hearing, the court
considered [Kane’s] request for another continuance to allow time for
Loehrs [] to complete its forensic analysis in Delaware County.
When denying [Kane’s] request, the Court noted that the evidence in
question was made available to the defense in March of 2017. Six
months later a Loehrs analyst arrived in the CID offices to conduct
her examination. Although the [ADA] advised in March that an
expert would have to bring the equipment necessary to conduct its
analysis[,] the Loehrs analyst arrived unprepared and then objected to
having to use computer software that she considered antiquated. As
the history of this case set forth above indicates, [Kane] apparently
had difficulty finding and retaining an expert who would provide
evidence that he considered satisfactory. [Kane’s] inability in this
regard was not grounds for further delay of trial.
....
Similarly, the Court did not commit an abuse of discretion when it
denied [Kane’s] [M]otion to [C]ompel discovery. The electronic
evidence was available to [Kane]. The Commonwealth did not act in
bad faith when, on the eve of trial it did not agree to ship the evidence
to Arizona. [Kane’s] alternative request that the Commonwealth, at
great expense, create and provide mirror forensic copies of [Kane’s]
cellphone, desktop computer, and external hard drive was
unreasonable under the circumstances.
Id. at 24-25.
6
November 28, 2017, before [the criminal trial judge].
[Kane] was sentenced on February 16, 2018. That
conviction and sentence was affirmed on appeal on May 9,
2019, in [Kane II], and the Supreme Court denied [Kane’s]
petition for allocatur. This Court notes that [Kane] failed to
raise any issue related to the denial of the Motion to
Compel that was argued before and ruled upon by [the]
[c]riminal [j]udge. The only issues raised in the direct
appeal were related to the Motion to Suppress; therefore,
[Kane] is bound by the decision of [the] [c]riminal [j]udge
related to the issue of the denial of the Motion to Compel.
The case sub judice was filed on March 19, 2019, by [Kane]
against [Detective Pisani]. In the civil complaint, [Kane]
alleges that [Detective Pisani] intentionally and unilaterally
provided [Kane’s] experts with equipment that was
inadequate and antiquated and unduly restricted [the
expert’s] examination to daily limits of four (4) hours. It is
for [these reasons] that [Kane] claims [Detective Pisani]
tortuously interfered with his and Loehrs contractual
relations.
(Trial court op. at 2, 4-8.)
After the complaint was filed, the case was scheduled to proceed to an
arbitration hearing on December 4, 2019. On March 8, 2019, Detective Pisani filed a
preliminary objection in the nature of a demurrer, which was overruled per an order
of the arbitration panel. Thereafter, on September 12, 2019, Detective Pisani filed an
answer and new matter, and Kane replied to the new matter on September 30, 2019.
On October 11, 2019, Kane took the deposition testimony of Detective Pisani. Then,
on November 19, 2019, Kane filed a motion for leave to amend his complaint,
pursuant to Pa.R.Civ.P. 1033, arguing that Detective Pisani could be held jointly and
severally liable with his direct supervisor, Detective Bellis, and seeking to add the
latter as a party-defendant. Kane also requested a continuance. On November 21,
2019, an order was entered denying Kane’s request for leave to amend and, also, for a
continuance. With regard to the former, the arbitration panel cited Delaware County
7
Rule of Civil Procedure 1303(f), which provides that “[a]ll motions, with the
exception of applications for continuance, must be filed no later than thirty (30) days
before the hearing date.” Id. (Trial court op. at 3; Reproduced Record (R.R.) at
233a.)
On December 4, 2019, a panel of arbitrators heard the case, at the
conclusion of which it found in favor of Detective Pisani. Kane then appealed the
award of the arbitrators to the trial court. On January 31, 2020, the trial court entered
a supplemental trial assignment and case management order. In due course,
Detective Pisani filed a motion for summary judgment on April 15, 2020, asserting
that Kane failed to state a cause of action for intentional interference with contractual
relations as a matter of law; Kane’s cause of action was barred by the doctrine of
collateral estoppel; and Detective Pisani was entitled to governmental and/or
prosecutorial immunity. Kane filed an answer and response to the motion for
summary judgment, arguing that genuine issues of material fact precluded the entry
of summary judgment on the intentional interference with contractual relations claim.
Kane further argued that Detective Pisani, by way of acting willfully and
intentionally, and due to the nature of his employment, was not entitled to either
prosecutorial or governmental immunity. Ultimately, by order dated May 28, 2020,
the trial court granted Detective Pisani’s motion for summary judgment. (Trial court
op. at 4.)
Subsequently, Kane filed a notice of appeal,2 and the trial court ordered
Kane to file a concise statement of errors complained of on appeal in accordance with
2
Kane filed his notice of appeal with the Superior Court, which, by order dated July 10,
2020, transferred the appeal to this Court.
8
Pa.R.A.P. 1925(b). Kane complied, and the trial court issued an opinion as required
under Pa.R.A.P. 1925(a). (Trial court op. at 4.)
In its opinion, the trial court determined there were no issues of material
fact; Kane failed to state a claim as a matter of law; the issues presented by Kane
were barred by the doctrine of collateral estoppel by virtue of the criminal court’s
ruling on the Motion to Compel; and, even if there were an issue of material fact, and
Kane was not collaterally estopped from raising his claim, Detective Pisani was
entitled to prosecutorial immunity or governmental immunity under sections 8541
and 8542 of the Judicial Code, 42 Pa.C.S. §§8541-8542, commonly referred to as the
Political Subdivision Tort Claims Act (Tort Claims Act). (Trial court op. at 1-2, 19.)
Throughout its opinion, the trial court stated that, in reviewing the record, “there
[was] no evidence that [Detective Pisani] made any of the decisions personally that
form the basis of the present civil claim . . . or [engaged in] any willful misconduct.”
Id. at 19.
Discussion
Before this Court,3 Kane argues that the trial court erred in granting
summary judgment in favor of Detective Pisani in violation of the “Nanty-Glo Rule,”4
determining that his claim was barred by the doctrine of collateral estoppel, finding
3
“This Court’s standard of review of a grant of summary judgment is de novo, and our
scope of review is plenary. We apply the same standard for summary judgment as the trial court.”
Gior GP, Inc. v. Waterfront Square Reef, LLC, 202 A.3d 845, 852 n.10 (Pa. Cmwlth. 2019) “A
grant of summary judgment is only appropriate where the record clearly shows that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”
Id.
4
Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932).
9
that Detective Pisani was entitled to prosecutorial and/or governmental immunity,
and failing to grant him leave to amend the complaint.
The Nanty-Glo Rule
Kane argues that the trial court erred in relying on the testimonial
affidavits of ADA Boggs and Detective Bellis in determining that Detective Pisani
could not be imputed with making any decisions regarding Loehrs’ ability to conduct
a forensic examination. In this regard, Kane asserts that the trial court violated the
“Nanty-Glo Rule.”
“The ‘Nanty-Glo [R]ule’ essentially means that the testimonial affidavits
or depositions of the moving party’s witnesses are insufficient by themselves to
establish a material fact because the credibility of the testimony is still a matter for
the jury.” Sanchez-Guardiola v. City of Philadelphia, 87 A.3d 934, 937 (Pa. Cmwlth.
2014). Nonetheless, “when a motion for summary judgment is made and supported
as provided in the rule, the adverse party may not rest only on the mere allegations or
denials in his pleadings, but must set forth in his response by affidavits, or as
otherwise provided, specific facts in dispute.” Id. at 938 (internal citation and
quotation marks omitted; emphasis omitted). As explained by our Superior Court:
Initially, it must be determined whether the plaintiff has
alleged facts sufficient to establish a prima facie case. If so,
the second step is to determine whether there is any
discrepancy as to any facts material to the case. Finally, it
must be determined whether, in granting summary
judgment, the trial court has usurped improperly the role of
the [factfinder] by resolving any material issues of fact. It
is only when the third stage is reached that Nanty-
Glo comes into play.
10
DeArmitt v. New York Life Insurance Co., 73 A.3d 578, 594-95 (Pa. Super. 2013)
(internal citation omitted; emphasis added).
Here, our review of the record and the trial court’s opinion reveals that
the trial court did not rely solely on the affidavits of the moving party, Detective
Pisani. Rather, the trial court, in notable part, relied upon the factual findings and
conclusions of law made by the criminal court in connection with the Motion to
Compel. More importantly, the trial court pointed out that Kane failed to adduce any
evidence to support the inference that Detective Pisani was responsible for any of the
decisions with regard to the procedures for forensic evidence testing at the CID
facility with which Kane takes issue. Ultimately, because the trial court concluded
that Kane did not submit sufficient evidence to support a prima facie claim for
intentional interference with contractual relations, we conclude that the trial court’s
grant of summary judgment in favor of Detective Pisani did not run afoul of the
Nanty-Glo Rule.
Collateral Estoppel
Kane also argues that the trial court erred in applying the doctrine of
collateral estoppel to bar his claim. According to Kane, the issues of fact and law that
were decided by the criminal court in ruling on the Motion to Compel are not
identical to the issues raised in his civil action claim for intentional interference with
contractual relations and, thus, collateral estoppel is inapplicable.
“The doctrine of collateral estoppel precludes relitigation of an issue
determined in a previous action.” Office of Disciplinary Counsel v. Kiesewetter, 889
A.2d 47, 50 (Pa. 2005). Typically, in order for collateral estoppel to apply, “the issue
decided in the prior case [must be] identical to the one presented in the later action.”
11
Id. At the same time, however, it is beyond cavil that issues of fact and/or law that
are decided in connection with a criminal conviction are conclusive, and a criminal
defendant is collaterally estopped from relitigating them in a subsequent civil
proceeding. See Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996). Therefore, to the
extent Kane relies on the dichotomy between criminal and civil actions to argue that
collateral estoppel cannot be used in this case, we reject that argument as meritless.
Moreover, and succinctly put, to state a claim for intentional interference
with contractual relations, a plaintiff must, among other things, establish that a
defendant, without a privilege to do so, induces or otherwise purposely causes a third
person not to continue a business relation with another or specifically intends to harm
the existing contractual relation. Glenn v. Point Park College, 272 A.2d 895, 897
(Pa. 1971); Maverick Steel Co., L.L.C. v. Dick Corp./Barton Malow, 54 A.3d 353,
354-55 (Pa. Super. 2012). Importantly, as an essential element of the tort, it is the
plaintiff’s burden to prove “the absence of privilege or justification on the part of the
defendant.” Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1025 (Pa. Cmwlth.
2016). In making such a determination, “[t]he issue in each case is whether the
[defendant’s] conduct is justifiable under the circumstances.” Restatement (Second)
of Torts §767, Comment b (American Law Institute 1979).
Here, Detective Pisani’s deposition testimony, coupled with ADA
Boggs’ email to Kane’s criminal attorney, established that the ADA and/or the CID
had a reasonable and justifiable policy in confining all digital discovery with
contraband, specifically pornographic images, to the CID facility. While Kane
complains that the CID facility had inadequate computer infrastructure for Loehrs to
complete its assessment of the data and/or images, and the timeframe that it was
allotted was unduly restrictive, the criminal court already ruled on these exact same
12
issues and determined that the Commonwealth, particularly Detective Pisani, acted in
good faith and in accordance with the law. See supra note 1. Moreover, in deciding
Kane’s Motion to Compel, the criminal court found that Kane unnecessarily delayed
in conducting a computer forensic analysis, and that Loehr’s analyst was unprepared
and had no legal basis to object to the condition of the computer software at the CID
facility.
Contrary to Kane’s assertion, the underlying issues presented to and
resolved by the criminal court are legally identical to those currently at issue in this
case for purposes of collateral estoppel, and the above findings by the criminal court
are entitled to preclusive effect. See supra note 1. Notably, this case did not involve
any misrepresentations, unlawful behavior, or active interference through persuasion,
manipulation, and/or physical destruction on the part of Detective Pisani—or anyone
else for that matter—that is typically associated with a finding of improper
interference with contractual relations, as opposed to justifiable conduct. See
Restatement (Second) of Torts §767, Comment c. Therefore, because Kane failed to
submit evidence sufficient to create a material issue of fact and demonstrate that
Detective Pisani’s conduct was not privileged and/or justified, and the trial court
correctly applied the doctrine of collateral estoppel to determine that Detective
Pisani’s conduct was, as a matter of fact and law, privileged and/or justified, we
conclude that the trial court did not err in granting summary judgment in favor of
Detective Pisani.
Leave to Amend
Kane asserts that the arbitration panel erred in denying him leave to
amend his complaint to add Detective Bellis as a party-defendant. Initially, we are
13
hesitant to uphold the panel’s ruling under Local Rule 1303(f), due to the broad
liberality in granting leave to amend pursuant to Pa.R.Civ.P. 1033. See Horowitz v.
Universal Underwriters Insurance Co., 580 A.2d 395, 398-400 (Pa. Super. 1990). In
any event, on the record as it stands, the Court cannot find reversable error in denying
Kane leave to amend because “an amendment is properly refused where it appears
amendment [would be] futile.” Weaver v. Franklin County, 918 A.2d 194, 203 (Pa.
Cmwlth. 2007). Here, even if Detective Bellis was inserted into the case as a
defendant, and could be held solely liable or share apportioned liability with
Detective Pisani, Kane’s claim for intentional interference with contractual relations
would still fail as a matter of law for the reasons set forth above.
Prosecutorial and/or Governmental Immunity
As previously stated, we conclude that Kane’s claim for intentional
interference with contractual relations fails as a matter of law, under the doctrine of
collateral estoppel and, also, because Kane did not adduce sufficient evidence to
support that claim. Consequently, this Court need not decide whether Detective
Pisani was entitled to a form of immunity that could independently bar Kane’s claim
for intentional interference with contractual relations.
Conclusion
Accordingly, for the above-stated reasons, we affirm the trial court’s
order.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vincent Kane, :
Appellant :
: No. 862 C.D. 2020
v. :
:
Edmond Pisani, Jr. :
ORDER
AND NOW, this 24th day of May, 2022, the May 28, 2020 order of
the Court of Common Pleas of Delaware County is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge