Edwin Simmons v. Jacques Galin, a/k/a JACK GALIN

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1511
EDWIN SIMMONS,
Appellant
v.
JACQUES GALIN, a/k/a JACK GALIN;
ROSITA CONROY, individually;
JACQUES GALIN, a/k/a JACK GALIN;
ROSITA CONROY, husband and
wife; MARIA CONROY; MELLON BANK
CORPORATION; MELLON BANK NA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-06151)
Honorable Thomas N. O’Neill, Jr., District Judge
Argued November 7, 2002
BEFORE: MCKEE and GREENBERG, Circuit Judges,
and LIFLAND, District Judge*
(Filed: December 5, 2002)
*Honorable John C. Lifland, Senior Judge of the United States District Court for the
District of New Jersey, sitting by designation.

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Stephen J. Fendler (argued)
Fendler & Associates
584 Wyoming Avenue
Kingston, PA 18704
Attorney for Appellant
Elizabeth C. Bailey
James D. Golkow (argued)
Cozen & O’Connor
1900 Market Street
The Atrium
Philadelphia, PA 19103
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Edwin Simmons appeals from an order for summary judgment entered on
September 10, 2001, in favor of defendants-appellees Mellon Bank Corporation and
Mellon Bank, N.A. (together called “Mellon”). The district court set forth the germane
facts in its opinion granting summary judgment and inasmuch as we write only for the
benefit of the parties we will not repeat them. It is sufficient to note that Simmons brought
this action against Mellon by reason of being shot and wounded by Jacques Galin while
attempting to repossess on behalf of Mellon a car owned by Rosita Conroy. Simmons
argues that Mellon is liable because it received a check from Maria Conroy paying off the
car loan before he attempted to repossess the car but breached its duty to him to cancel the

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repossession order. He contends that Mellon should have canceled the repossession order
because he was at risk of being assaulted if he attempted to repossess a car by reason of a
supposed default on a loan when the default actually had been cured.
The district court found that “[a]lthough the date Mellon received the check [i.e.,
before or after the attempted repossession] may be a ‘genuine’ issue of fact, it is not a fact
that is ‘material’ to [Simmons’] negligence claim because . . . Mellon [did] not owe a duty
of care to [Simmons] under these circumstances.” In reaching its result the district court
followed the opinion of the Pennsylvania Superior Court in Elbasher v. Simco Sales Service
of Pennsylvania, 657 A.2d 983 (Pa. Super. Ct. 1995), which held that an ice cream
manufacturer that had leased an ice cream truck to an independent contractor did not owe a
duty to the contractor to protect him from criminal acts of third parties committed along
his preassigned route. Simmons has appealed from the order entered.
The district court had jurisdiction in this diversity of citizenship action under 28
U.S.C. § 1332(a)(1) and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review of this appeal and therefore will affirm if we conclude that there is no dispute as to
any material fact and Mellon is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).
We will affirm but not for the reasons stated by the district court. Indeed, it is
possible that Pennsylvania law, which the parties treat as applicable here, would have
imposed a duty on Mellon to notify Simmons or his employer of the receipt of the check
from Conroy if it had received it before Simmons attempted to repossess the car.

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Moreover, the situation in Elbasher was distinguishable from that here as it would be one
thing to impose a generalized duty of protection on a party sending another person into a
potentially dangerous situation but quite another to place the easily discharged duty to
notify a party not to proceed with an unnecessary task in a dangerous circumstance.
Moreover, Mellon should not be absolved from liability merely because criminal acts of a
third party directly caused Simmons’ injury. See Liberty Nat’l Life Ins. Co. v. Weldon, 100
So. 2d 696 (Ala. 1957).
Nevertheless we are satisfied that on the record before us we must affirm as we
are convinced that there is no basis for Simmons to dispute Mellon’s claim that it did not
receive the check from Maria Conroy before the attempted repossession in the early
morning hours of October 4, 1995. It is, of course, settled that we “may affirm a judgment
on any ground apparent from the record, even if the district court did not reach it.”
Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir. 2001). We realize that Conroy
testified that she mailed the check in Wildwood, New Jersey, on September 28 or 29,
1995, and that the check had a date on it of October 3, 1995, stamped by Mellon. In these
circumstances if there was no other evidence with regard to the time when Mellon received
the check we hardly could grant it summary judgment on a theory that it received it after
Galin shot Simmons.
There is, however, other evidence on the point that we regard as conclusive. First,
Christopher A. Bartos, a Mellon vice president explained that the check in fact was received
on October 5, 1995, and that the October 3, 1995 date was on the check because a Mellon

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machine operator inadvertently had set the processing machine for October 3, 1995. Both
the check and the envelope in which it was received also have the date of October 5, 1995,
imprinted by Mellon to reflect the date on which they were received. Thus, he indicated
that “when the Conroy check was processed by the machine, it was endorsed with an
erroneous date.”
Nevertheless we would not hold that the Bartos affidavit in itself negated the
possibility that there is a dispute of material fact here regarding when Mellon received the
check and beyond doubt established that Mellon received the check on October 5, 2002.
There is, however, conclusive support for Mellon’s position that it received the check on
October 5, 1995. Anthony J. Andrioli, Manager of Distribution Operations at the Postal
Service Processing and Distribution Center in Bellmawr, New Jersey, examined the
envelope in which the check had been delivered to Mellon. He indicated that the October 4,
1995 cancellation stamp on it was authentic and that the envelope would have been
delivered to Bellmawr no earlier than 3:30 p.m. on October 4. Thus, it would have been
impossible for the check to have been delivered to Mellon before the shooting. Andrioli
also said that the delivery schedule for the envelope was “absolutely” consistent with
Mellon’s contention that it received the check on October 5, 1995. Simmons offers no
evidence disputing Andrioli’s testimony.
In view of Andrioli’s testimony the issue before us is not complicated. The
question is whether Conroy’s testimony as to when she mailed the check provides a
sufficient basis to controvert the written record of when the envelope was processed when

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that record is explained by a disinterested postal manager. We answer that question in the
negative. Consequently, the district court was correct in its decision to grant summary
judgment.
For the foregoing reasons the order of September 10, 2001, will be affirmed.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge

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