Balshy v. Pennsylvania State Police

• Decision Date: 08 February 2010
• Docket Number: No. 99 C.D. 2009,No. 100 C.D. 2009,99 C.D. 2009,100 C.D. 2009
• Citation: 988 A.2d 813
• Parties: John C. BALSHY, Petitioner v. PENNSYLVANIA STATE POLICE and Office of General Counsel, Respondents. Janice Roadcap, Petitioner v. Office of General Counsel and Pennsylvania State Police, Respondents.
• Court: Pennsylvania Commonwealth Court

988 A.2d 813

John C. BALSHY, Petitioner v. PENNSYLVANIA STATE POLICE and Office of General Counsel, Respondents.

Janice Roadcap, Petitioner v. Office of General Counsel and Pennsylvania State Police, Respondents.

No. 99 C.D. 2009

No. 100 C.D. 2009

Commonwealth Court of Pennsylvania.

Argued December 9, 2009.

Decided February 8, 2010.

Christopher J. Coyle, Lebanon, for petitioner, John C. Balshy.

Linda J. Olsen, Harrisburg, for petitioner, Janice Roadcap.

Susan E. Malie, Deputy General Counsel, Harrisburg, for respondent, Office of General Counsel.

BEFORE: LEADBETTER, President Judge, and PELLEGRINI, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and BUTLER, Judge.

OPINION BY Judge SIMPSON.

In these consolidated appeals, former Pennsylvania State Police (PSP) Corporal John C. Balshy (Balshy) and former PSP Chemist Janice Roadcap (Roadcap) petition for review from an order of the Office of General Counsel (OGC) that denied their requests for indemnification and reimbursement of legal fees and costs associated with their defense in an underlying federal suit filed against them by Steven Crawford (Crawford). OGC denied the requests based on its determinations that Balshy and Roadcap acted maliciously, outside the scope of their employment and in bad faith. In particular, OGC determined Balshy and Roadcap, individually or while acting in concert, misrepresented the results of Roadcap's analysis of palm print evidence collected in connection with the murder investigation and criminal prosecution of Crawford; failed to fully disclose the results of Roadcap's palm print analysis to the prosecution and the defense in the criminal proceedings against Crawford; and, provided misleading testimony during three separate criminal trials of Crawford.

On appeal, Balshy and Roadcap contend OGC's determinations that they acted maliciously, outside the scope of their employment, and in bad faith, are not supported by substantial evidence. In addition, a threshold issue exists as to whether OGC enjoyed jurisdiction over Balshy and Roadcap's reimbursement requests. Upon review, we conclude OGC properly exercised jurisdiction over the requests for reimbursement and properly denied those requests on the merits. Therefore, we affirm OGC's decision.

I. Procedural Background

Through the complaint filed in the underlying federal civil rights action, Plaintiff Crawford advanced claims against Balshy and Roadcap pursuant to 42 U.S.C. §§ 1983 ("Civil action for deprivation of rights"), 1985 ("Conspiracy to interfere with civil rights") and 1986 ("Action for neglect to prevent"). Crawford alleged, among other things, Balshy and Roadcap engaged in conduct violative of Crawford's Fourth and Fourteenth Amendment rights. Specifically Crawford alleged Balshy and Roadcap "maliciously conspired" to commit acts of fraud, deceit, falsification of testimony, fabrication, alteration, adulteration and/or concealment of exculpatory evidence in order to wrongfully convict Crawford of criminal homicide. The complaint includes separate counts of "fraud," "false imprisonment," "intentional infliction of emotional distress," and "conspiracy." Reproduced Record (R.R.) at 226a-231a. Crawford alleged these acts were committed on the basis of Crawford's race and Balshy and Roadcap acted with "wanton" and "reckless disregard." R.R. at 230a.

Shortly after service of the complaint in the underlying action, PSP Chief Counsel Barbara L. Christie notified Roadcap and Balshy the Commonwealth would not be providing them with defense counsel in the federal suit, and the Commonwealth would not indemnify them for any judgment entered against them or pay or indemnify them for the expense of settlement of the suit. At that time, both Balshy and Roadcap retained separate, private counsel.

Upon settlement of the underlying action for $1.2 million, Balshy, through counsel, formally made his demand of the Commonwealth for reimbursement of legal fees totaling $107,385.85. In addition, Roadcap, through counsel, sought reimbursement of $178,156.40 in legal fees and costs. PSP Chief Counsel Christie denied these requests.

Shortly thereafter, Balshy and Roadcap filed separate appeals from Chief Counsel Christie's denials. OGC's Deputy General Counsel Linda C. Barrett denied these appeals on the grounds Balshy and Roadcap acted maliciously, in bad faith or outside the scope of their employment. Balshy and Roadcap again appealed, and the appeals were consolidated for hearing before Hearing Officer Jackie Lutz, Esq. on the issue of whether Balshy and Roadcap's conduct was a bad faith exercise of their authority, malicious or outside the scope of their employment such that they were not entitled to reimbursement of reasonable attorney's fees and expenses. Hearing Officer Lutz conducted a hearing in these matters in April 2007. The record was subsequently certified and submitted to OGC.

II. Factual Background

Ultimately, General Counsel Barbara Adams issued a thoughtful and thorough opinion, containing a 20-page discussion of the complex factual background as well as 14 pages of "Findings of Fact, Conclusions of Law and Analysis." OGC's opinion is summarized below.

A. Investigation of the Murder of John Eddie Mitchell

In September 1970, Harrisburg Police discovered the body of 13 year-old John Eddie Mitchell in a detached garage owned by the family of 14 year-old Steven Crawford. It was determined the cause of the Mitchell's death was blunt force trauma to his head.

Parked inside the garage and adjacent to Mitchell's body was a Pontiac Station Wagon owned by the Crawford family. During the course of the investigation, police discovered what appeared to be blood spatter on the left rear door of the Pontiac. Police investigators processed this portion of the vehicle and were able to lift seven latent finger prints and/or palm prints, of which three partial palm prints matched impressions obtained from Crawford. At least one print had a substance on it that police suspected might be Mitchell's blood.

Then — Corporal Balshy and Walton Simpson,¹ who at all times during the investigation served as either a City of Harrisburg police sergeant or a Dauphin County Detective, were two of the officers assigned to investigate the Mitchell case. Balshy and Simpson delivered the partial print to the PSP Laboratory for analysis.

At the time of the investigation, which occurred between 1972 and 1974, PSP chemists engaged in a practice that typically included conducting three separate tests to verify whether a substance detected on evidence constituted human blood. When the evidence was located on a print, i.e., finger, palm or foot, the chemist typically documented precisely where on the print the substance was located. Prints include two separate surfaces: the "ridges" of the print where the skin is raised and the "valleys," or depressed skin between the ridges of the print.

The first test involved dropping a benzidine reagent onto the substance. If the reagent yielded negative results for peroxidase activity, the chemist would conclude no blood was present and no further tests would be conducted. However, if the benzidine caused positive peroxidase activity, a reaction noted by a bright blue hue, the particles could fall within a set of possible substances, including chemicals such as potassium dichromate and potassium permanganate, vegetable juices like carrot juice or potato juice, dried vegetable extracts, leather or blood. Thus, further testing would be required to confirm whether the substance was in fact blood.

The second test, the "Takayama test," involved more advanced chemical testing to confirm whether the substance was in fact blood. However, this test did not distinguish between human blood and the blood of an animal. If the substance was determined to be blood, a third test was then performed to establish whether the blood originated from a human source.

On November 29, 1972, Roadcap, a chemist and serologist employed by the PSP, analyzed the palm print taken from the Mitchell crime scene at the request of Balshy. Roadcap was not a fingerprint expert. Roadcap "also emphasize[d] that this may have been one of the very few times she ever received print evidence." OGC Op. at 9.

Balshy presented Roadcap with a tri-sheet carbon copy form reflecting certain typewritten information such as the victim's name, the date, the location, the incident number, Balshy's signature as the requester of the analysis, what type of test Balshy requested and other general information identifying and describing the item of evidence. The following descriptor was also typewritten onto the form "Blood Analysis of a Latent Fingerprint Lift." OGC Op. at 10.

On November 29, 1972, Roadcap conducted the first test while Balshy and Simpson were in the laboratory room. Roadcap asked Balshy how much of the print she could use for testing purposes as the print would be destroyed once subject to testing. Balshy instructed Roadcap to refrain from using the entire print, so Roadcap cut three small strips from the print for her use. Further,

[Roadcap] allowed Balshy and Simpson to remain in the testing room as she performed the preliminary benzidine test on all three of the strips. Roadcap permitted Balshy to view the results of the benzidine test under the microscope. (Vol. II, Ex. D, p. 49) She states that Balshy would have seen precisely what she viewed under the microscope. (Vol. IV, Tab d, p. 69)

Roadcap concluded that the print tested positive for benzidine, which could represent the presence of blood. She recalls viewing a "very intense blue color" under the microscope. (Vol. II, Tab 9, Ex. G, pp. 667) Balshy admits having viewed this same reaction under the microscope. (Vol. IV, Tab g, pp. 712 & 716)

OGC Op. at 10.

Roadcap explained that as each event occurred during her analysis, she recorded handwritten notes. After concluding the benzidine test, she handwrote the following...