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HomeMy WebLinkAbout02-4656IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiffs SEARS, ROEBUCK and CO., and CONCENTRA MEDICAL CENTER, Defendant Civil Action - Law Jury Trial Demanded NOTICE To~ Sears, Roebuck and Company Concentra Medical Center YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must firt take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing a writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 The Court of Common Pleas of Cumberland County, Pennsylvania is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact the office of the Court Administrator. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. Fred H. Hait, ID #34331 Fred H. Halt & Associates, PC The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania 17013-3047 Pajoblawfl~earthlink.net Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiff SEARS, ROEBUCK and CO., and CONCENTRA MEDICAL CENTER, Defendant Civil Action - Law Jury Trial Demanded COMPLAINT PARTIES 1. Plaintiff Maura Jenkins ("Jenkins") is an adult citizen of Cumberland County, Pennsylvania, residing at 24 West Locust Street, Mechanicsburg, Pennsylvania, 17055. Plaintiff Jenkins is the guardian and parent of minor Megan Remsnyder. 2. Plaintiff Meghan Remsnyder ("Remsnyder") is an unemancipated minor, bom on December 19, 1984, citizen who resides in Cumberland County, Pennsylvania, with her guardian and parent at 24 West Locust Street, Mechanicsburg, Pennsylvania 17055. 3. Defendant Sears, Roebuck and Company ("Sears") is a corporation that maintains a place of business in Cumberland County, Pennsylvania at The Capitol City Mall, 3506 Capitol Mall Drive, Camp Hill, Pennsylvania 17011. 4. Defendant Concentra Medical Center ("Concentra") is a corporation that maintains a place of business at 4400 Lewis Road, Harrisburg, Pennsylvania 17111. FACTS 5. On or about February 2001, Defendant Sears hired Plaintiff Remsnyder, an unemancipated 16 year-old minor, as a sales associate. 6. At all relevant times that the events that give rise to this action took place, Plaintiff Remsynder remained in the employment of Defendant Sears. 7. On or about April 2001, Defendant Sears' agent, servant, or employee, Ms. Jobie Morrison, told Plaintiff Remsnyder that she "looked tired," and demanded that Plaintiff Remsnyder submit to a drug test for the presence of drugs of abuse. 8. Defendant Sears' agent, servant, or employee, Mr. Jim McNat, the store manager, upheld the demand that Plaintiff Remsnyder submit to a drug test for the presence of drug of abuse without seeking, requiring or obtaining the consent or approval of 16 year-old minor Plaintiff Remsynder's guardian and parent, Plaintiff Jenkins. 9. Defendant Sears assigned its agents, servants, or employees, Mr. Juan Donnel and Ms. Tiana Thompson, to forcibly remove Plaintiff Remsnyder, an unemancipated 16 year-old minor, and transport Plaintiff Remsnyder via privately owned vehicle to a drug testing facility located approximately 9 (nine) miles from Defendant Sears' place of business. 10. On or about May 23, 2001, Defendant Sears' agents, servants, or employees were instructed to transport Plaintiff Remsnyder to Defendant Concentra's facility. 11. Defendant Concentra informed Defendants Sears' agents, servants, or employees that the consent of guardian and parent, Plaintiff Jenkins, was required to perform a drug test for the presence of drugs of abuse. 12. Defendant Sears refused to comply with Defendant Concentra's request and instructed Defendant Concentra to perform the drug test for the presence of drugs of abuse without the consent of Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins. 13. Defendant Concentra was aware that the parental consent or approval of 16 year-old minor Plaintiff Remsynder's guardian and parent, Plaintiff Jenkins was not sought, requested or obtained. 14. Defendant Concentra did not seek, require or obtain the consent or approval of 16 year-old minor Plaintiff Remsynder's guardian and parent, Plaintiff Jenkins. 15. On or about May 23, 2001, Defendant Concentra performed a drug test for the presence of drugs of abuse without seeking, requiring or obtaining the consent of Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins. COUNTI Remsnyder by Jenkins v. Concentra Medical Center Invasion of Privacy 17. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. 18. The events that give rise to this action took place on or about May 23,2001 at Defendant Concentra's place of business. 19. On or about April 200 I, Defendant Concentra's agents, servants, or employees performed a drug test for the presence of drugs of abuse on Plaintiff Remsnyder. 20. The actions of Defendant's Concentra's agents, servants, or employees, described above, intentionally intruded upon the solitude or seclusion of Plaintiff Remsnyder's private affairs or concerns. 21. Defendant Concentra's failure to seek, require or obtain consent from Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins, is highly offensive to a reasonable person. 22. As a result of the actions described above, Defendant Concentra's behavior is deemed outrageous and caused Plaintiff Remsnyder mental suffering, shame and humiliation. WHEREFORE, Plaintiff requests judgment against Defendant for compensatory and punitive damages in excess of $25,000, together with costs of suit, and such additional relief as the Court may deem appropriate. COUNT II Remsnyder by Jenkins v. Sears, Roebuck and Company False Imprisonment 23. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. 24. The events that give rise to this action took place on or about May 23, 2001 at Defendant Sears' place of business, and at other locations described herein. At that time and place, Defendant Sears demanded that Plaintiff Remsnyder submit to a drug test for presence of drugs of abuse. 25. Defendant Sears assigned multiple agents, servants, or employees to forcefully and physically transport Plaintiff Remsnyder to a drug testing facility, creating a confined, intimidating and fearful environment. 26 Plaintiff Remsnyder did not feel that she was free to refuse to be transported to the drug testing facility, as she felt embarrassed about the accusations of drug abuse in front of her peers and co-workers and she felt that her employment was in jeopardy if she refused. 27. Because of the age and experiences of Plaintiff Remsnyder, the multiple agents, servants, or employees of Defendant Sears surrounding her was intimidating and resulted in the direct confinement of Plaintiff Remsnyder. 28. PlaintiffRemsnyder was fully conscious of her confinement by Defendant Sears' agents, servants or employees, for the purpose of transporting her to a drug testing facility. 29. Defendant Sears' agents, servants, or employees failed to make any attempt to contact Plaintiff Remsnyder's her uardian g and parent, Plaintiff Jenkins, regarding the removal of Plaintiff Remsnyder from D ' ' efendant Sears place ofbus~ness. 30. As a result of the action described above, Plaintiff Remsynder was emotionally distressed, fearful and humiliated. WHEREFORE, Plaintiff request judgment against Defendant Sears for compensatory and punitive damages in excess of $25,000, together with costs of suit, and such additional relief as the Court may deem appropriate. COUNT III Remsnyder by Jenkins v. Sears, Roebuck and Company Invasion of Privacy 31. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. 32. The events that give rise to this action took place on or about May 23, 2001 at Defendant Sears' place of business, and at other locations described herein. 33. On or about May 23, 2001, Defendant Sears' agents, servants, or employees demanded Plaintiff Remsnyder submit to a drug test for the presence of drugs of abuse without any cognizable suspicion. 34. Based on Defendant Sears' past practice of requiring the consent of guardian and parent, Plaintiff Jenkins, before Plaintiff Remsnyder's submission to a pre-employment drug test, Defendant Sears was fully aware of the requirement that parental consent must be given for medical procedures. 35. The actions of Defendant's Sears' agents, servants, or employees, described above, intentionally intruded upon the solitude or seclusion of Plaintiff Remsnyder's private affairs or concerns. 36. Defendant Sears' failure to seek, require or obtain consent from Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins, is highly offensive to a reasonable person. 37. As a result of the actions described above, Defendant Sears' behavior is deemed outrageous and caused Plaintiff Remsnyder mental suffering, shame and humiliation. WHEREFORE, Plaintiff requests judgment against Defendant Sears for compensatory and punitive damages in excess of $25,000, together with costs of suit, and such additional relief as the Court may deem appropriate. Respectfully Submitted, Fred H. Halt & Associates, P.C. Attorneys for Plaintiffs The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania (717) 249-4500 (phone) (717) 249-2411 (fax) pajoblawfh~earthlink.net AFFIDAVIT We, the undersigned, verify that the facts set forth in the foregoing Complaint are tree and correct, to the best of our knowledge, information, and belief. We acknowledge that any false statements herein are made subject to the penalties of 18 Pa. C.S. section 4904, relating to unswom falsification to authorities. Date Date Maura Jenl~ns Megan Remsnyder SHERIFF'S RETURN CASE NO: 2002-04656 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND REMSNYDER MEGHAN ET AL VS SEARS ROEBUCK & CO ET AL - OUT OF COUNTY R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: CONCENTP~A MEDICAL CENTER but was unable to locate Them in his bailiwick. deputized the sheriff of DAUPHIN County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On October 21st , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Dep Dauphin Co 6.00 9.00 10.00 30.50 .00 55.50 10/21/2002 FRED HAIT & ASSOC So answers: ~i : R. Thomas Kline ~ Sheriff of Cumberland County Sworn and subscribed to before me this ~ day of ~ 2~ ~ A.D. / I Prothono~ar~ ~ SHERIFF'S RETURN - CASE NO: 2002-04656 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND REMSNYDER MEGHAN ET AL VS SEARS ROEBUCK & CO ET AL REGULAR ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SEARS ROEBUCK AND COthe DEFENDANT , at 1234:00 HOURS, at CAPITAL CITY MALL CAMP HILL, PA 17011 LINDA BISTLINE, HR on the 2nd day of October 3506 CAPITAL MALL DRIVE by handing to 2002 a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 37.66 Sworn and Subscribed to before me this ~t day of {P ~i~_~ ~0~ A.D. Prothenotary So Answers: R. Thomas 10/2 /2002 FRED HAIT & ASSOC m Y~l ~~ ] --Deputy Sheriff In The Court of Common Pleas of Cumberland County, Pennsylvania Meghan Rensnyder et al VS. Sears, Roebuck and Co et al SERVS:: Concentra Medical Center No. 02 4656 civil NOW, September 30, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do l~ereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cum berland County, PA ~JOW, wvithin Affidavit of Service ,20 ,at o'clock M. served the LtpOrl at by handing to a and made known to copy of the original So answers, the contents thereof. Sworn and subscribed before me this _. day of Sheriff of COSTS SERVICE MILEAGE AFFDAVIT County, PA Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Shexiff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin AND NOW:October 14, 2002 COMPLAINT CONCENTRAMEDICAL CENTER to LORI HELWIG (MEDICAL ASST.) of the original : REMSNYDER MEOHAN vs : CONCENTRA MEDICAL CENTER Sheriff's Return No. 2272-T - -2002 OTHER COUNTY NO. 02-4656 at 4:43PM served the within upon by personally handing 1 true attested copy(les) COMPLAINT and making known to him/her the contents thereof at 4400 LEWIS RD HBG, PA 17111-0000 Sworn and subscribed to before me this 15TH day_of OCTOBER, 2002 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. Fy Sheriff Sheriff's Costs: $30.50 PD 10/02/2002 RCPT NO 169934 MG IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiffs, SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants. CIVIL ACTION NO: DEFENDANT SEARS, ROEBUCK AND COMPANY'S NOTICE OF REMOVAL TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: Defendant Sears, Roebuck and Co. ("Sears"), by and through its undersigned attorneys, hereby removes the above-captioned action, which is presently in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 02-4656, pursuant to 28 U.S.C § 1441 et. seq., and in support thereof aver the Certified frqm the r..ecord "MarC~E. D'Andr '.c4:~e_rk ~_ following: 1. Defendant Sears, Roebuck and Company ("Sears"), is a Defendant in a Civil Action commenced by Plaintiffs on or about September 27, 2002, by the filing of a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, under the caption of Meghan Remsnyder and Maura Jenkins v. Sears, Roebuck and Co. and Concentra Medical Center, CiVil Action No. 02-4656. (A copy of the Complaint is attached as Exhibit "A"). 2. The State proceeding names as Defendants Sears, Roebuck and Co. ("Sears") and Concentra Medical Center. 3. Defendant Sears is incorporated in New York and has its principal place of business at 3333 Beverly Road, Hoffman Estates, IL 60179. As such, Sears is a citizen of the States of New York and Illinois. ( See Affidavit attached as Exhibit "B"). 4. Defendant Concentra Health Services, Inc., d/b/a Concentra Medical Center is incorporated in Nevada with its principal place business at West Tower, Suite 400, 5080 Spectrum Drive, Addison, Texas 75001. Accordingly, Defendant Concentra Medical Center is a citizen of the States of Nevada and Texas. ( See Affidavit attached as Exhibit "C"). 5. According to the Complaint filed in the State proceeding, Plaintiff Remsnyder, an unemancipated minor, and her mother and natural guardian, Plaintiff Jenkins, are residents of Cumberland County in the Commonwealth of Pennsylvania. (See Complaint, Ex. "A", ¶¶ 1 and 2). Defendant Sears was served with a copy of the Complaint on October o 3,2002. 7. Accordingly, pursuant to 28 U.S.C. § 1446 and Fed. R. Civ. P. 6(a), the instant Notice was timely filed within thirty (30) days from receipt of the Complaint. 8. The State Proceeding contains separate claims for invasion of privacy, false imprisonmeni and invasion of privacy under Pennsylvania common law, Counts I, II and III, respectively. (See Complaint, Ex. "A"). The State Court Complaint alleges that the Defendants separately intruded upon the solitude or seclusion of Plaintiff Remsnyder's private affairs or concerns by requesting that she submit to a work-related drug test. Additionally, the State Court Complaint alleges that Defendant Sears falsely imprisoned Plaintiff Remsnyder for the purpose of transporting her to a drag testing facility, which allegedly caused Plaintiff Remsnyder to suffer emotional distress, fear and humiliation. 9. In the State proceeding, Plaintiffs seek to recover compensatory and punitive damages in excess of $25,000 for each of the three counts, together with costs of suit and any such additional relief the Court may deem appropriate. (.See Complaint, Ex. "A"). 10. Upon information and belief, the amount in controversy exceeds the sum or value of $75,000.00, exclusive of costs and interest. 11. This case is a civil action over which this Court now has diversity jurisdiction under 28 U.S.C. § 1332, because the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between citizens of different States. Defendant Concentra Medical Center consents to the removal of this 12. action. 13. Pursuant to the provisions of 28 U.S.C. §§ 1441 and 1446, this case is therefore one that may be removed to this Court by the Defendants. 14. Defendant Sears, upon filing the instant Notice of Removal in the United States District Court for the Middle District of Pennsylvania, has also filed copies of this Notice with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, in order to effect removal of this action pursuant to 28 U.S.C. §1446(d). WHEREFORE, Defendant Sears, Roebuck and Company gives notice that this action, which is presently pending in the Court of Common Pleas of Cumberland County, Pennsylvania, under the caption of Meghan Remsnyder and Maura Jenkins v. Sears, Roebuck and Co. and Concentra Medical Center, Civil Action - Law 02-4656, has been removed from that Court to the United States District Court for the Middle District of Pennsylvania and that this action should be placed on the docket of this Court for further proceedings as though it had been originally instituted here. DATE: IO/2 g/t} 2. BY: Respectfully submitted, POST & SCHELL, P.C. ~~R.~ERG, ESQUIRE DAVID Q. JONES, ESQUIRE 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 (215) 587-1000 Attorneys for Defendant Sears, Roebuck and Company CERTIFICATE OF SERVICE I hereby certify that on this 22nd Day of October, 2002, a tree and correct copy of the within Notice of Removal, with attached exhibits, has been served on all interested counsel and representatives listed below via first-class mail, postage pre-paid. Fred H. Hait, Esquire The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania 17013-3047 Attorney for Plaintiffs John Berry Vice President of Risk Management Concentra Inc. West Tower, Suite 400 5080 Spectrum Drive Addison, Texas 75001 Representative for Defendant Concentra Medical Center POST & SCHELL, P.C. / DAVID Q. JONES, }~QUIRE TABLE OF CONTENTS FOR EXHIBITS Exhibit Document A B C Complaint filed in Meghan Remsnyder and Maura Jenkins v. Sears, Roebuck and Company, et. al., Civil Action No. 02-4656 (Court of Common Pleas of Cumberland County, Pennsylvania, Filed September 27, 2002) Affidavit of April Hanes-Dowd -- Affidavit of Richard A. Parr, II Exhibit A .FROM : ~EARS CAMP H ILL PA Fred H. Halt, ID #3433! Fred H. Halt & Associates, PC The W,'llington 17 East High Street, Suite 101 Carlisle, Pcnnsylvaaia 17013-3047 Paj oblawfh(~eatthlink, nct Attorneys for Plaintiff PHONE NO. : ?l? 768 8847 OCt. 03 2082 gM: 26AM IN ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and .' nam '.ral: guardian, Plaintiff SEARS, ROEBUCK and CO., and CONCENTRA MEDICAL CENTER, Defendant Civil Action - Law No. Jury Trial Demanded COM~PLAINT 1. Pla.intLffMaura Jenkins ("Jenkins") is an ~ult citizen of Cumberlaud Couaty, panasylvania, t~dding at 24 West Locust $1x~n, Mechauicsburg, Pennsylvania, 17055. ' · ".::: :..: i :',';'.i :..'~ %'../..ii".":. ? '." : pl~.infiffJcnk~u~ is the guardian and patent of minor Mcgaa Rcmsnyd~r.. '...:. ...: ... · ~.-' : - "" 2. pla~ntiffMeghah Kcmsnyder ("Kem-~uyde£") is an unemancipated minor, bom on December 19, 1984, citizen who resides in Cumberland County, pennsylvania, with her guardian and paxent at 24 West Locust Street, Meehanicsbuzg, Pennsylvania 17055. 3. Defendant Sears, Roebuck and Company ('Sea~") is a corporation that maintains a place of business in Cumberland County, p~ansylvaaia at The Capitol City Mall, 3506 Capitol Mall Drive, Camp Hill, Permsylvania 17011 Received Time Oct, 3. 1'58P~ · FROM : SEARS ~MP HILL PA PHONE NO. : 717 760 8047 0~ 2002 04: 2GAM P3 4. Defendant Concentra Medical Center ("Concenwa") is a corporation that maintains a place ~ business at 4400 Lo,vis Road, Harrisburg, petmsylvania 17111. FACTS 5. On or about February 2001, Defen,~nt Sears hired Plaintiff R~m~axyder, an unemancipated 16 year-old minor, as a sates associate. 6. At all relevant times that the events that give rise to this action took place, plaintiff Remsynder remained in the employment.of Defendant Sears, :~;:':....".;'..'. .. :"; i" " ' . . . · · 5: .: ' ' 7. On or about April 2001, Defendant Sears' agent, servant, or employee, Ms. Jobi~'Morrison, told Plaintiff Remsnyder that she looked tired, and demanded that Plaintiff Remsnyder submit to a drug test for the presence of drags of abuse. g. Defendant Sears' agent, servant, or employee, Mr. Jim McNat, the storc manager, uphcld the demand that PblnfiffRemsnyder submit to a drug test for the presence of drug of abuse v,i.thout seeking, requiring or obtaining the consent or approval of 16 yeax-old minor · plaintiffRemsynder's guardian and parent, plaintiff Jenkins. 9. Defendant Sears assigned its agents, servants, or employees, Mr. S-~,x Donnel and Ms. Tiana Thompson, to forcibly remove Plaintiff l~msnyder, an uneman¢ipated 16 year-old r~;nor, and transport Plaing-ff Remsnyder via privamly owned vehicle to a drag testing facility located approximaely 9 (nine) miles from Defendant Sears' place of business. · '... instructed to transport PlaintiffRem~yd~ to Defendant Concentra's facility. 11. Defendant Conccntra informed Defendants Sears' agents, servants, or employees that the consent of g~,.~rdian and parent, plaintiff Jenkins, vva.s required to perform a drug test for the presence of drugs of abuse. KROM : SEARS CAMP HILL PA PHONE NO. : 717 780 8047 Oct. 03 2002 04:27RF1 P4 " s 12. Dcti:ndant Sears refused to comply with Defendant Concentra s reque.'t and instructed Defendant Concentra to perrom~ the drug test for the presence of drugs of abuse without the consent of Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins. 13. Defendant Conccntra was aware that the parental consent or approval of 16 year-old minor Plaintiff Rcmsynder's gu~dian and parent, Plaintiff Jenkins was not sought, requested or obtained. 14. Defendant Concentra did not seek, require or obtair~ the cotlsent or approval of 16 year-old minor plaintiff Rcmsyader's guardian and paten% Plaintiff Jenkins. 15. On. or about May 23, 2001, Defendant Concentra Perfo,'raed a drug test for thc present/of ' 'clnzgs 'of abuse without seeking, requiring or obt~inlng the consent of Plointlff ' Remanyder's guardian and parent, Plaintiff Jenkins. COUNT I Remsnyder by Jenkins v. Concentra Medical Center Invasion of Privacy I7. Paragraphs 1 throu~q. Ja 16, inclusive, are incorporated by reference as if fully set forth below. IB. The events that g/ye risc to this action took place on or about May 23, 2001 at Defentt-nt Conccntra's place of business. . i'9;.on or about Aprii 2001. Defendant Conccntra's agents, servants, or.employe~, pe'.rfdrmed' ' '.:' .:': a drug test for the presence of drags of abuse on Plaintiff Remsnyder. 20. Thc actions of Defendant's Concontra's agents, servants, or employees, described above, intentionally intruded upon the solitude or ~clusion of Plaintiff Remsnyder's private affairs or concerns. Received Time Oct. 3. ~ROM : S~S CAMP HILL PHOI~ NO. : 717 768 804? Oct. 03 2002 04:27RM P5 21. Defendant Concentra's failure to seek, require or obtain conscnt from Plaintiff Remsnyder's guardian and parent, Plaintiff Jenkins, is highly offensive to a reasonable person. 22. As a result of the actions described above, Defendant Concentra's behavior is deemed outrageous and caused PlaintiffRemsnyder mental suffering, shame and humiliation. WHEREFORE, Plaintiffrequestsjudgment against Defendant for compensatory and punitive elamaEes in excess of $25,000, together with costs of suit, and such additional relief as the Court may deem appropriate. COU~ ri Remsnyder by ,Ien~in-q v. Sears, Roebuck and Company False Imprisonment 25. Paragraphs I through 16, inclusive, are incorpOrated by reference as if fully set forth below. 24. The events that give risc to this action took place on or about May 23, 2001 at Defendant Sears' place of business, and at other locations described herein. At that time and place, Defendant Sears demanded that PlainfiffRemsnyder submit to a drug test for presence'of ' drags of abuse. 25. Defendant Scars assigned multiple agents, servants, or employees to forcefully and ' ~hysically tra,~2~ort pl.i~fiffRemsnyder to a drug testing fac. ility, and 26 PlalntiffRemsnyder did not feel that she was free to refuse to be transported to the drug testing facitity, as she felt embarrassed about the accusations of drag abuse in front of her peers and co-workers and she felt that her employment was in jeopardy if she refused. 27. Because of the age and experiences of PlaintiffRcmsnyder, the multiple agents, gm'ants, or employees of Defendant Scars surrounding her was intimidating and resulted in the direct confinement of Plaintiff Remsnyder. 28. Plaintiff Rernsnyder was fully conscious of her confinement by Defendant Sears' :agents, ~crvauts or employees, tbr the purpose oftran~port;ng her to a chug resting facility. 29. Defendant Sears' agents, servants., or e. mployces failed to make any attempt to contact pl~intiffRemsnydcr's her guarAian and parent, Plaintiff`Jenkins, regarding t_h_e removal of PlaintiffRemsnyder from Defendant Sears' place of business. 30. As a result of the action described above, Plaintiff Remsynder was emotionally distressed, fearful and humiliated. COUNT III Remsnyder by Jenkins v. Sears, Roebuck and Company Invasion of Privacy 31. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. .32. The events that give rise to lhis action took place on or about May 23, 2001 at Defemclant Sears' place of business, and at other locations described herein. 33. On or about May 23, 2001, Dcfendant Sears' agents, servants, or employees demanded - . · ·: C: ":'..' ". ::~q~:.:..-:'2.~i~ · :/',i'J.?:'. i, ??' i:.'..,::: '.'~.:"m~R~yd~r ;ub~{t to ~ a~, t~ fo~ the ~rese~ '~5" ':"'~'~ " "" ' ~blc smpicion. 34. Based on Defendant Sears' past practice ofr~quiring the consent of guardian and parent, Plaintiff l~nkins, before plaintiff Remsnyder's submission to a pre-employment drug test, Defendant Sears was fully aware of the requirement that parental con~nt must be given for medical procedures. FROM : SEARS CAMP HILL PR PHONE : 717 760 8047 Oct. 03 2002 04:28AM P6 35. The a~tions o£Defendant's Sears' agents, scrvants, or employees, described above, intenti6nally intruded upon the solitude or seclusion o£ Plaintiff Remsnyder's private 8.F~a.ir$ or concer~$. 36. Defendant Sears' failure to seek, require or obtain consent from Plaintiff Remsnyder's guardian and parent, p!~iutLff Jenkips, is highly offensive to a reasonable person. 37. As a result of the actions described above, Defendant Sears' behavior is deemed outrageous and caused plaintiffRem,nyder mental suffering, shame and humiliation. WHEREFORE, Plaintiff requests judgment against Defendant Sears for compensatory ?,:'i:i~:?~'~:ii'.: !,:: :,: ::-~.a pw~tive da~ in ¢~ ofS~S,ooo, toget~ ~t~ ~os~ o~.~i~ ~a ~eh ~U~: · .'. "'/ "relief ~ the Court may deem appropriate. Respectfully Submitted, Fred H. Halt & Associates, P.C. Attorneys for Plaintiffs The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania (717) 249-4500 (phone) (717) 249-2411 (fax) pajoblawih~eartklink.net FROM :' SEARS CAMP HILL PA PHONE ND. : 717 768 8~7 Oct. 03 2002 04:28AM P7 A.l~'~Avrr We. ~h~ undersiEru~ vegify that the fac/s set forth ~ the foregoing Comphint are corr~t, to the best of our knowledge, i_~_f.>~'a~ation, and belief- We acknowledge,h,t any false · Stataments herein are made subject to th© penalti~ of 18 Pa. C.~ section 4904, relating to unsworn falsification to authorities. Date' t M~gan Remsnyd?~' Exhibit B AFFIDAVIT I, the undersigned, hereby certify and say that I am the Corporate Secretary for Sears, Roebuck and CO. I hereby certify that Sears is incorporated in the State of New York. I further certify that the State of Illinois is the location of Scars' headquarters of day-to-day corporate activity and management and that Sears' executives set forth in Attachment "A" maintain offices in the State of Illinois. I hereby certify that the foregoing statements are tree and correct to the best of my knowledge, infonixation and belief. Executed on: SIGNED BY: TITLE: Alfril Hanes-Dowd Corporate Secretary SWORN T° AND SUBSCRIBED BEFORE ME THIS o~ I DAY OF ,2002 MAUREEN L. GRISOLIA i NOTARY PUBLIC STATE OF ILLINOIS Commission Expires April 2, 2002 Attachment "A" 1. Thomas Bergm~nn 2. Kathryn Bufano 3. Mary E. Conway 4. E. Ron Culp 5. Lyle G. Heiden~nn 6. Kevin Keleghan 7. Anastasia D. Kelly 8. Greg Lee 9. Paul Liska 10. ~erry Miller 11. William G. Pagonis 12. Glenn Richter 13. Bob Rodgers 14. David Selby 15. Mike Tower Vice President and Controller- Sears, Roebuck and Co. EVP/GM, Sofdines- Full-line Stores EVP/GM, Store Operations - Full-line Stores SVP, Public Relations, Communications & Government Affairs- Sears, Roebuck and Co. EVP/GM Hardlines- Sears Retail president, Credit and Financial Products- Sears, Roebuck and Co. SVP & General Counsel - Sears, Roebuck and Co. SVP, Human Resources- Sears, Roebuck and Co. EVP & CFO- Sears, Roebuck and Co. SVP & CIO- Sears, Roebuck and Co. SVP, Supply Chain Management- Sears, Roebuck and Co. SVP, Finance- Sears, Roebuck and Co. SVP/GM, The Great Indoors- Sears, Roebuck and Co. SVP, Marketing- Sears, Roebuck and Co. SVP, Strategy- Sears, Roebuck and Co. Each aforementioned Executive Officer of Sears, Roebuck and Co. maintains day-to-day offices at 3333 Beverly Road, Hof~nan Estates, IL 60179. Exhibit C THESTATE OFTEXAS COUNTY OFDALLAS SS.' AFFIDAVIT KNOW ALL MEN BY THESE PRESENTS: That on this 21 st day of October, 2002, personally came and appeared before me Richard A. Parr II, Executive Vice President and General Counsel of Concentra Health Services, Inc. known, and known to me, who after being first duly sworn, deposes and says: I, the undersigned, hereby certify that Concentra Health Services, Inc., d/b/a Concentra Medical Center, is incorporated in the State of Nevada. I further certify that the State of Texas is the location of Concentra's headquarters of day-to-day corporate activity and management. I hereby certify that the foregoing statements are true and correct to the best of my knowledge, information and belief. FURTHER AFFIANT SAYETH NOT. RICHARI~ .4~. PARR II SUBSCRIBED TO AND SWORN TO before me this 21st day o£October, 2002. t~f Au~u*, 17, 200~ ~ The State of T E X A S IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEGHAN REMSYNDER, a minor by MAURA JENKINS, her mother natural guardian, Plaintiff Vo SEARS ROEBUCK &CO. and CONCENTRA MEDICAL CENTER, Defendants · CIVIL NO. 4:02-CV-1900 · (Judge Jones) ORDER March 3, 2003 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On September 21, 2002, Plaintiff Meghan Remsynder, a minor, and her mother, Maura Jenkins brought a civil action against the defendants in the Court of Common Pleas of Cumberland County, Pennsylvania. Thc complaint alleges that Meghan Remsynder, as an unemancipated minor, was emploved as a sales associate of a store of Defendant Sears Roebuck in April of 2001. Meghan Remsynder was directed by a superior Sears employee to submit to a test which would detect the use of contrc)',ied substances. Parental conser, t ~or the test was not sought or obtained. Mcghan Remsynder was transported to Defendant Concentra's facility on or about May 23, 2001, where a drug test was performed without parental consent. Count I of the complaint alleges an invasion of privacy against Defendant Concentra, Count II alleges false imprisonment against Defendant Sears Roebuck and Company, and Count III alleges an invasion of privacy against Defendant Sears Roebuck and Company. On October 23, 2002, the defendants removed the civil action to the United States District Court for the Middle District of Pennsylvania on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Defendants also filed, on that same date, a motion to dismiss coUnts II and III of the complaint. On November 13, 2002, the Plaintiffs filed a motion for this Court to remand this civil action back to the Cumberlap. d County Court of Common Pleas. The Clerk of Courts originally assigned responsibility of this case to us, but referred it to Magistrate Judge J. Andrew Smyser for preliminary consideration. On Januar3: 3, 2003, the Magistrate Judge isst~,t a report recommending that w,' z remand t?~e case back to the Ce:~rt of Common Pleas and defer ruling on Defendants' motion to dismisss. Objections to the report m,.d recommendation were due t~n January 17, 2003, to this date none have been filed. This matter is ripe for disposition. 2 When no objections are filed to the report of a Magistrate Judge, we need only review that report as we in our discretion deem appropriate, Thomas v. Am., 474 U.S. 145, 151-52 (1985). In Wilbur v. Block, 170 F.Supp.2d 480 (M.D. Pa. 2000), our colleague Judge A. Richard Caputo held that the appropriate standard for application in removal cases is at least a preponderance of the evidence standard. "The defendant must demonstrate that it is more likely than not that plaintiff's claim exceeds $75,000.00." Id. The Court held that this is a test that is in line with the nature of the federal court's limited jurisdiction. Unlike a plaintiff's right to file a suit in federal court, removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand. See Bums v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11t~ Cir. 1094) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108(3d Cir. 1990)). Magistrate Judge Smyser's report reflects his determination that Defendants have not satisfied their bu~ ~icn. His determination is based ~on the inability of the court to make a reasonably useful predict!~on as to what a jury will decide to be the valtte of an intrusion into the intangible rights and interests implicated. Nor can this court make a reasonably useful prediction as to w!~at a jury will decide to be the value of the harm caused by the intrusion. We agree with the Magistrate Judge's report and recommendation. Because we were not presented with any argument to persuade us otherwise, we adopt Magistrate Judge Smyser's report and recommendation in toto. We will remand this case back to the Cumberland County Court of Common Pleas. We also will decline to decide the pending motions to dismiss filed by the Defendants as we have determined we do not have jurisdiction over this case. NOW, THEREFORE, IT IS ORDERED THAT: 1. The report and recommendation filed on January 3, 2003 is adopted in toto (doc. 22). 2. This case is remanded back to the Court of Common Pleas of Cumberland County, Pennsylvania. 3 The Clerk of Court is directed] to close this case. l~d States Dl,,l~ict Judge Pennsylvania Middle District Version 1.0 - Docket Report Page 1 of 5 R/R, HBG U.S. District Court Middle District of Pennsylvania (WilHamsport) CIVIL DOCKET FOR CASE #: 4:02-cv-01900-JEJ Internal Use Only Remsnyder v. Sears Roebuck & Co., et al Assigned to: Judge John E. Jones III Referred to: Demand: $0 Lead Docket: None Related Cases: None Case in other court: Cumberland County, 02-04656 Cause: 28:1441 Petition for Removal- Civil Rights Act Date Filed: 10/23/02 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: Diversity Plaintiff -------................. Meghan Remsnyder, a minor, by Maura Jenkins, her mother and natural guardian Defendant mmmmmmmmmmmmmmmmmmmmmmm Sears Roebuck & Co. represented by Brian J. Puhala Halt & Puhala, P.C. 17 E. High Street The Wellington Suite 101 Carlisle, PA 17013-30407 717-249-4500 Fax: 17172492411 Email: pajoblawbp @ earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Fred H. Hait Halt & Puhala, P.C. 17 E. High Street The Wellington Suite 101 Carlisle, PA 17013-3047 717-249-4500 Email: pajoblawfh @ earthlink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by David Q. Jones Post & Schell, P.C. 1800 JFK Blvd. 19th Floor https://ecf, pamd.circ3.dcn/cgi_bin/DktRpt.pl?467560015869141_L_795_0_l 03/05/2003 Pennsylvania Middle District Version 1.0 - Docket Report Page 2 of 5 Concentra Medical Center I I I Philadelphia, PA 19103 215-587-1000 LEAD ATTORNEY ATTORNEY TO BE NOTICED Jonathan B. Sprague Post & Schell 1800 John F. Kennedy Blvd. 19th Floor Philadelphia, PA 19103 215-587-1155 LEAD ATTORNEY ATTORNEY TO BE NOTICED Sidney R. Steinberg Post & Schell 1800 JFK Boulevard Philadelphia, PA 19103 215-587-1140 Fax: 12155871497 Email: ssteinberg @postschell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED represented by David Q. Jones (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Jonathan B. Sprague (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Robert J. Marino Dickie, McCamey & Chilcote, P.C. Two PPG Place Suite 400 Pittsburgh, PA 15222 412-392-5220 Fax: 14123925367 Email: marinor@dcmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Sidney R. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED https://ecf, pamd.circ3.dcn/cgi-bin/DktRpt.pl?467560015869141_L_795_0_ 1 03/05/2003 Pennsylvania Middle District Version 1.0 - Docket Report Page 3 of 5 Filing Date # Docket Text 10/23/2002 1 PETITION FOR REMOVAL from Cumberland County Court, Case Number: 02-4656, w/attached exhibits Receipt #: 137456 Amt: $150.00 (bp) (Entered: 10/25/2002) 10/23/2002 _2 EXHIBITS by defendant re removal petition [1-1], complaint [1-2] (bp) (Entered: 10/25/2002) 10/23/2002 3 MOTION by defendant Sears Roebuck & Co. to dismiss Counts II and III of Plf Complaint, C of non-conc and S, propo (bp) (Entered: 10/25/2002) 10/25/2002 Docket Modification (Utility Event) Case referred to Mag. Judge J. A. Smyser (bp) (Entered: 10/25/2002) 10/25/2002 REMARK - Original case file retained in Wrapt, docket sheet only to Chambers, copy file and docket sheet to Mag. Judge (bp) (Entered: 10/25/2002) 10/25/2002 4 MEMORANDUM by dft Sears Roebuck & Co. IN SUPPORT OF motion to dismiss Counts II and III of Plf Complaint [3-1]; with c/s. (sc) (Entered: 10/28/2002) 10/25/2002 5 EXHIBITS by dft Sears Roebuck & Co. mtn and memorandum in support of mtn to dismiss [4-1]. (sc) (Entered: 10/28/2002) 10/30/2002 _6 CASE MANAGEMENT ORDER by Mag. Judge J. A. Smyser Case Management Conference set for 10:00 11/22/02 (cc: all counsel & court) (is) (Entered: 10/30/2002) 11/07/2002 7_ BRIEF by plaintiff Meghan Remsnyder IN OPPOSITION to motion to dismiss Counts II and III of Plf Complaint [3-1]; reply brief due 11/20/02; C/S. (vg) (Entered: 11/08/2002) 11/07/2002 Docket Modification (Utility Event) add attorney Brian J. Puhala for Meghan Remsnyder (vg) (Entered: 11/08/2002) 11/08/2002 REMARK - Doc. #7 to WMSPT OSF. (vg) (Entered: 11/08/2002) 11/08/2002 8 ENTRY OF ATTORNEY APPEARANCE for defendant Concentra Medical by atty Robert J. Marino; with c/s. (rw) (Entered: 11/12/2002) 11/08/2002 9 MOTION by defendant Concentra Medical to extend time to plead, until 12/10/02; with c/s and propo. (rw) (Entered: 11/12/2002) https://ecf, pamd.circ3.dcn/cgi-bin/DktRpt.pl?467560015869141_L_795_0_ 1 03/05/2003 Pennsylvania Middle District Version 1.0 - Docket Report Page 4 of 5 11/08/2002 10 MOTION for admission under L.R. 83.8; with c/s and propo. (rw) (Entered: 11/12/2002) 11/12/2002 REMARK - Doc # 8-10 sent to Williamsport OSF. (rw) (Entered: 11/12/2002) 11/13/2002 1~2 MOTION by plaintiff to remand the case to the Court of Common Pleas of Cumberland County with cert of nonconc, proposed order and c of s. (jc) (Entered: 11/14/2002) 11/14/2002 1_11 ORDER- by Mag. Judge J. A. Smyser: granting deft Concentra Medical Center's motion to extend time to plead [9-1]; Answer ddl extended until 12/10/02 (cc: all counsel J. Jones, MJ Smyser) (js) (Entered: 11/14/2002) 11/14/2002 REMARK - Document 12 sent to Wmspt. (jc) (Entered: 11/14/2002) 11/15/2002 1~3 ORDER by Mag. Judge J. A. Smyser denying motion for general admission under L.R. 83.8 to a case specific. [10-1] (cc: J. Jones, MJ Smyser & all counsel) Os) (Entered: 11/15/2002) 11/15/2002 14 JOINT MOTION by pltf & defts to extend time for filing the joint case mgt. form & to postpone the case mgt. conf. pending the outcome of the pltfs' mtn. to remand & the defts' responses thereto. (c/s) (is) (Entered: 11/15/2002) 11/15/2002 15 ORDER by Mag. Judge J. A. Smyser granting motion to extend time for filing the joint case mgt. form & to postpone the case mgt. conf. [14-1] deadlines termed; The parties shall file the Joint CM Plan within 15 days of an order denying pltfs' mtn. to remand. (cc: all counsel J. Jones & MJ Smyser) (js)(Entered: 11/15/2002) 11/15/2002 l__fi6 MOTION by plaintiff for a 15 day extension of time to file the joint case management plan and postpone the CMC with cert of conc, proposed order and c of s. THIS IS A DUPLICATE ENTRY FOR ITEM # 14 (jc) Modified on 11/25/2002 (Entered: 11/18/2002) 11/18/2002 REMARK - Document 16 sent to Wmspt. 0c) (Entered: 11/18/2002) 11/18/2002 1_27 BRIEF by plaintiff IN SUPPORT of motion to remand the case to the Court of Common Pleas of Cumberland County and c of s. [12-1] (jc) (Entered: 11/19/2002) 11/19/2002 REMARK - Document 17 sent to Wmspt. (jc) (Entered: 11/19/2002) 11/25/2002 DOCKET MODIFICATION (Utility Event) [16-1] motion for a 15 day extension of time to file the joint case management plan and https://ecf, pamd.circ3.dcn/cgi_bin/DktRpt.pl?467560015869141-L_795_0-1 03/05/2003 Pennsylvania Middle District Version 1.0 - Docket Report Page 5 of 5 postpone the CMC - termed because this is a duplicate docket entry of item #14. Os) (Entered: 11/25/2002) 11/29/2002 1~8 REPLY BRIEF by defendant Sears Roebuck & Co. in support of motion to dismiss Counts II and III of Plf Complaint with exhs. attached and c of s. [3-1] (.jc) (Entered: 12/02/2002) 12/02/2002 REMARK - Document 18 sent to Wmspt. (jc) (Entered: 12/02/2002) 12/04/2002 19 MEMORANDUM by dft Sears Roebuck & Co. IN OPPOSITION to mtn to remand the case to the Ct of Common Pleas of Cumberland County [12-1]; rplybr due 12/17/02; with c/s. (sc) (Entered: 12/05/2002) 12/04/2002 2_Q0 EXHIBITS by dft Sears Roebuck & Co. re response [19-1]. (sc) (Entered: 12/05/2002) 12/10/2002 21 ANSWER by defendant Concentra Medical; with c/s. (sc) (Entered: 12/12/2002) 01/03/2003 22 NOTICE/REPORT AND RECOMMENDATION by Mag. Judge J. A. Smyser: recommending that Pltfs mtn. to remand to Cumberland County be granted and that ruling be declined on Deft. Sears' motion to dismiss Cts. 2 & 3 [12-1], [3-1]; Objections to R and R due 1/23/03 (cc: all counsel; J. Jones w/Judge's file, MJ Smyser, R&R Tickler) Os) (Entered: 01/03/2003) 01/07/2003 2~3 COUNTY COURT RECORD filed by the Prothonotary of the Cumberland County Court. (sc) (Entered: 01/08/2003) 03/03/2003 ~2~_4 ORDER granting 1_~2 Motion to Remand back to the Court of Common Pleas of Cumberland County, PA. The R&R 22 is adopted in toto. The Clerk of Court is directed to close this case. S--igned by Judge John E. Jones III on 3/3/03 (eo,) (Entered: 03/05/2003) 03/03/2003 Remark: Certified copy of docket and Order sent to CCP of Cumberland County. (eo,) (Entered:: 03/05/2003) https//ecf pamd clrc3 d~n/cgl bln/DktR t 19467560015869 : ' ' ' ' '- ' P .P · 141-L_795_0-1 03/05/2003 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiffs, Ve SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants. .Civil Action - Law iNo. 02-4656 DEFENDANT SEARS, ROEBUCK & CO.'S PRELIMINARY OBJECTIONS TO COUNTS II AND III OF PLAINTIFFS' COMPLAINT Defendant Sears, Roebuck & Company ("Sears"), by its undersigned counsel, Post & Schell, P.C., hereby files Preliminary Objections and moves this Court to Dismiss Counts II and III of Plaintiffs' Complaint with prejudice. On or about September 27, 2002, Plaintiff Meghan Remsnyder, an unemancipated minor, by her mother Maura Jenkins, filed a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, asserting Pennsylvania common law claims against Sears and Defendant Concentra Medical Center. (Ex. "A")~. Sears acknowledged service of the Complaint on October 3, 2002. Sears removed the case to the United States District Court for the Middle District of Pennsylvania on October 23 based upon diversity of citizenship. (Ex. "B"). The case was remanded by Order dated March 3, 1 Plaintiff has resolved her claim against Concentra. 2003 and entered March 5, 2003 because the amount in controversy herein does not exceed the $75,000 threshold for federal diversity jurisdiction.2 (Ex. "C"). 1. Plaintiff's Complaint alleges that Remsnyder, a Sears employee, was falsely imprisoned and that her privacy was invaded as the result of Sears' actions related to a workplace drug test. (Ex. "A"). 2. Specifically, Sears allegedly "demanded" that Remsnyder submit to a drag test and then "forcibly" transported her to Concentra's drag testing facility. (Ex. "A"). 3. Remsnyder, by her mother, asserts claims against Sears for false imprisonment and invasion of privacy. Her claims should be dismissed as a matter of law. 4. Count II, alleging false imprisonment, should be dismissed on the grounds that Plaintiff Remsnyder's alleged "imprisonment" is a work-relatecl intentional tort and is barred by the exclusivity provision of the Pennsylvania Worker's Compensation Act, 77 Pa. Cons. Stat. Ann. §§ 101 et. seq. ("WCA"). 5. Count III, alleging invasion of privacy against Sears, is also a workplace tort that is barred by the exclusivity provision of the WCA. 2 Plaintiff filed a sworn affidavit stating that the amoun~I in controversy does not exceed $75,000. WHEREFORE, Defendant Sears, Roebuck & Co. respe, ctfully requests that the Court dismiss Counts II and III of Plaintiffs' Complaint as a matter of law and with prejudice. Dated: '~]]q[ o ~ By: Respectfully submitted, POST & SCHELL, P.C. ~~ERG, ESQUIRE ROBERT J. TOY, ESQUIRE Attorney I.D. Nos. 54564, 88090 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 (215) 587q000 Attorneys :for Defendant Sears, Roebuck & Company -3- Exhibit A ;$ ~1~;~' FAX MEMO "~: $~A~-.,c L..,ql-4 ", NO. ' NO. PHONE ND. : 717 760 1~:047 Oct. 03 2002 04:25AM P1 TODAY'S DATE I 0 - ~ - O~ NO. OF PAGES ~ IN ~ COURT OF COI~I1VION PLEAS OF CUM~E~D COUNTY, PENNSYLVANIA 1V/EGHAN REMSNYDER, a minor, by lVlAURA JENI/2~$, her mother and nalural guardian, Plaintiffs SEARS, ROEBUCK and CO., and . CONCENTRA MEDICAL CENTER. Defendant Civil Act/on -- Law Jury Trial Demanded To: NOTICE Sears, Roebuck and Company Concentra Medical Center YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in th~ following pages, you must rift take action within twenty (20) days after this complaint 5~_._cdz by en~ ~rmg a wntt,en appearance personally or by attorney and filing a ~u~5 w,~ ~zc cou-,x your oelerls¢s or obiectio-- t- 'h ' ' - - u ~.~ o t e cmm~s set rort~ against you. You are warned tI~,'ifyou fail W do so the ca~c may pre, ced without you and a judgment may be entered against you by the court wifl~out further notice for any money claimed in the complaint or for any other clainx or relief requested by the plaintiff. You may lose money or property or other rights important ~o you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO -: NOT HAVE A LAWYF. R OR CA.NrNOT AFFORD ONE, GO T'O 'OR TELEPHONE THE i:'i :~ii!i:';:.I: :ii ':' "...OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU (3AN GET LEGAL I-IELP. ' :' Cumberland County Bar Association 2 Liberty Avenuc Carlislc, PA 17013 (717) 249-3166 (~00) 990-9108 The Court of Common Pleas of Cumberland County, Pennsylvania/s required by law to comply with the Americans ~,i&b Dis~hih des Act of 1990. For irlformation about accessiblc facilities and reasonable accommodations available to disabled individuals having busincss before the court, please contact the office or'the Court Administrazor. arrangemen[s mu.st be made at least 72 hours prior to any hearing or busincs.~ b~:fore ~ho court. You must attend the scheduled conference or hearing. Received Time Oct. 3. 1'587M PA PHONE NO. : 717 760 ,B047 OCt. 03 2002 IB4:26~,M P2 Fred H. Hair, ID #34331 Fred H. Halt & Associates, PC The Wellington 17 East High Street, Suite IOl Carlisle, Pennsylvania 17013-3047 Pajoblawfh(~earthlink. nct Attorneys for Plaintiff IN ~ COURT OF COMMON PLEAS OF CU19IBERLAND COUNTY, PENNSYLVANIA MEGHAN REMSNYDER, a minor, by · MAURA. JENKINS, her mother and na ..rural... guardian, Plaintiff SEARS, ROEBUCK and CO., and CONCENTRA MEDICAL CENTER, Defendant Civil Action - Law No. Jury' Trial Demanded CO.'MPLAINT 1. Pl',tint~'Maura Jenkins ("Jenkins") is an adiJlt citizen of Cumberland County, Pennsylvania, residing at 24 West Locust Street, Mecl~micsburg, Pennsylvania, 17055. : . '.. ' '::: :. ':; ':';¥ :.i::;~ '.' Plaintiff Jenkins is the guardian and l:arent of minor Megan Rcmsnyder... :. ?-: ..... . '. :' '"'?':'"'; .": ". ',: 2. PlmntiffMeghaa Remsnyder ("Remsayder") is an unemaneipated minor, born on December 19, 1984, citizen who resides ia Cumberland County, Pennsylvania,. with her guardian and parent at 24 West Locust Street, Meehanicsburg, Pennsylvania 17055. 3. Defendant Sears, Roebuck and Company ("Sears") is a corporation that maintains a place of business in Cumberland County, Pennsylvania at The Capitol City Mall, 3506 Capitol Mall Drive, Camp Hill, Pennsylvania 1701 I. Received Time Oct. 3. l'58PM '~ROM ! SEARS CAMP HILL PA PHONE NO. : 717 760 8047 Oct. 03 2002 04:26AN P3 4. Defenda~lt Concentra Medica/Center ("Concentra") is a corporation that maintains a place o~' business at 4400 Lewis Road, Harrisbtu-g, Pe~msylv~inia 17i 11. FACTS 5. On or about February :2001, Defendant Scars hired Plaintiff Itean.~yder, an unemancipated 16 year-old minor, as a sales associate. 6. At all relevant times that the events that give rise to this action took place, Plaintiff Remsynder remained in the employment of Def~dant Sears. 7.' On or about April 2001, Defendant Sears' agent, servattt, or employee, Ms. Jobi~Morris0n, told PlainfiffRemsnyder that she "looked tired," and demanded that Plaintiff Remsnyder submit to a drug test for the presence of dru~ of abuse.. Defendant Sears' agent, servant, or employee, Mr. Jim McNat, the store manager, upheld the demand that PlaintiffRemsnyder submit to a drug test for the presence of drug of abuse without seeking, requiring or obtaining the consent or a;Dproval of 16 year-old minor PlaintiffRemsynder's guardian and parent, Plaintiff.Jenkins. Defendant Sears assigned its agents, servants, or employ'ecs, Mr. Juan Donnel and Ms. Tiana Thompson, to forcibly remove Plaintiff, Remsnyd~;r, an unemancipated 16 year-old minor, and transport Plaintiff Remsnyder via privately owned vehicle to a drug testing facility located approximately 9 (nine) miles from Defen[dant Sears' place of business. instructed to transport PlaintiffRernsnyd~.~r to Defe. ndant Concentra's facility. 11. Defendant Concentra informed Defendants Sears' agents, servants, or employees that the consent of guardian and parent, Plaintiff jenkins, was required to perform a drug test for the presence of drags of abuse. Received Time Oct, 3, I'58PM 'FRo~' SE~RS C~P P~ PHONE NO. : 717 7613 EI1347 Oct. 0~ 2002 04:27~M P4 I2. Dctbndan! Sears refused to comply witl~ I.)efez~dant C, oncentra's request and instructed Defendant Concentra to perI'om~ the drug test for the presence of drugs of abuse without the consent of Pl'ainfiff Remsnyder's guardian and paa:ent, Pla/ntiff Jenkins. 13. Defendant Concentra was aware that the parental consent or approval of 16 year-old minor PlaintiffRcmsynder's guardian and parent, Pla~intiff Jenkins was not sought, requested or obtained. 14. Defendant Concentra did not seek, require or obtain the consent or approval of 16 year-old m/nor PlaintiffRemsyndcr's guardian and parent, Pla'intiffJenkim. 15, On. or,about May 23, 2001, Defendant Concentra port;~rmed a' drug test for the pres~Xce of '" drugs of abuse without se, eking, requiring or obtaining the consent of Plairttiff .... "':'" Remsnyder's guard/an and parent, Plaintiff Jenkins. CO[IhT I Remsnyder by Jenkins v. Concentra Medical Center Invasion of Privacy 17. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. I8. The events that give risc to this action took place on or .about .May 23, 2001 at Defendant Concentra's place of business. -'19: On or about April 2001, Defendant Conccntra's agents, servants, or.emplojre~'.p~0rnie~i'i-.".¥~;.: a drug test for the presence of drags of abuse on Plaintiff Remsnyder. 20. The actions of Defendant's Concentra's agents, servants, or employees, described above, intentionally intruded upon the solitude or seclusion of Plaintiff Remsnyder's private affairs or concerns. Received Time Oct. 3. 1'58P~ CAMP HILL PA PHONE NO. : 717 ?60 804? Oct. 03 2002 04:27AM P5 21. Defendm~t Concentra's lhil~e to seek, require or obtain consent from Plaintiff R. emsnyder's guardian and parent, Plaintiff.lenkins, Js highly offensive to a reasonable person. 22. As a result of the actions described above, Defendant Coneentra's behavior is deemed outragcous and caused PlainfiffRemsnyder mental stfffering, shame and humiliation. WHEREFORE, Plaintiff requests judgment against Defendant for compensatory and punitive damages in excess of $25,000, together with cos'ts of suit, and such additional relief as the Court may deem appropriate. .COUNT Remsnyder by Jenkins v. Sears, Roebuck and Company False Imprisonment 23. Paragraphs I through 16, inclusive, are incorporated by reference as if fully set forth below. 24. The events that give rise to this action took place on or about May 23, 2001 at Defendant Sears' place of business, and at other locations described herein. At that time and place, Defendant Sears demanded that PlainfiffRemsnyder submit to a drug test for presence'of drugs of abuse. 25. Defendant Sears assigned multiple agents, servants, or employees to forcefully and · .....-;'.....,..': ...... ....... .physiea/lytransportPlaintiffRemsnydexto adrug testi,agfaeility, creating ~eonfmecl, ";i ;.,' !?i .:: '.!'7' .~.'.:.';:").."~.. .'.:' ' :~ .~..' ' . ', ' .,' ' 26 Plaintiff Remsnyder did not feel that she was free to refuse to be transported to the drug testing facility, as she felt embarrassed about the accusations of drug abuse in front of her peers and co-workers and she felt that her employment ,aras in jeopardy if she refused. 27. Because of the age and experiences of PlaintiffRemsnyder, the multiple agents, servants, or employees of Defendant Sears surrounding her was intimidating and resulted in the direct confinement of Plaintiff Remsnyder. 28. Plaintiff Remsnyder was fully conscious of her confinement by Defendant Sears'agents, servants or employees, lbr the purpose of transporting her to a drug testing facility. 29. Defendant Sears' agents, servants, or employees failed to make any attempt to contact PlaintiffRcmqnyder's her guardi~,n and parent, Plaintiff Jenkins, regarding the removal of Plaintiff Remsnyder from Defendant Sears' place of business. 30. As a result of'thc action described above, Plah~tiff Remsynder was emotionally distressed, fearful and humihat~d. relief as the Court may deem appropriate. COUNT Iii Remsnyder by Jenkins v. Sears, Roebuck and Company Invasion of Privacy 31. Paragraphs 1 through 16, inclusive, are incorporated by reference as if fully set forth below. 32. The events that give rise to this action took place on or about May 23, 2001 at Defendant Sears' place of business, and at other locations described herein. 33. On or about May 23, 2001, Defendant Sears' agents, servants, or employees demanded .Plaintiff Remsnyder Submit to a drug test for the presence of drugs · .' .... -' - '-<:, :~ .'.' -' :~,~.i.:....~'?; · · · of abuse.without any.: ::-.~...~,i..~'.:i..;:' co?i?able suspicion. 34. Based on Defendant Sears' past practice of requiring the; consent of guardian and parent, Plaintiff Jenkins, before P 'laintiff Remsnyder's submission to a pre-employment drug test, Defendant Sears was fully aware of the requirement that parental consent must be given for medical procedm'es. Oct. 3. l:58PM FROM :~ SEARS CAMP HILL PA PHONE NO. : 717 768 8847 Oct. 03 2002 84:28AM P6 35. The actions of Defendant's Scars' agents, servants, or employees, described above, intentionally intruded upon fl~e solitude or seclusion of Plaintiff Remsnyder's private affairs or concerns. 36. Defendant Sears' failure to seek, require or obtain co:asent from PlaintiffKemsnyder's guardian and parent, Plaintiff Jenki.ns, is highly offensive to a reasonable person. 37. As a result of the actions described above, Defendant Sears' behavior is deemed outrageous and caused Plaintiff Remsnyder mental sufferin~ shame and humiliation. WHEREFORE, Plaintiff requests judgment agaim~t Defendant Sears for compensatory 'and punitive damages in excess of $25,000, together with costs of suit, and su.ch additi0j'.nal:.. relief as the Court may deem appropriate. " TRUE COPY FROM RECORD 'In Testh'nony wflemol, I here umo set my ~ Respectfully Submitted, Fred H. Halt & Associates, P.C. Attorneys for PIaintiffs The Welling[on 17 East High Street, Suite 101 Carlisle, Pennsylvania (717) 249-4500 (phone) ..~ (717) 249-2411 (fax) paj oblawthL~earthlink.net FROM :' SEAR~ CAMP HILL PA PHONE NO. : 717 768 8847 Oct. 03 2002 04:28AM P7 We, the undersigned, verify thai the fa~ set forth in the foregoing Complaint are true snrl correct, to the b~a of our lcnowl~g~ information, and belief' We acknowledge that any false ' statement~ herein are made subject to the penalties of 18 Pa. C.~ section 4904, relating to unsworn falsification to authorities. Daze' Received Time Oct. 3. I'58PM Exhibit B IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Ve Plaintiffs, SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants. CIVIL ACTION NO: DEFEm)Af T SEARS, /6-i BUCK Ara) COMP 'S NOTICE OF REMOVAL TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: Defendant Sears, Roebuck and Co. ("Sears"), by and through its undersigned attorneys, hereby removes the above-captioned action:, which is presently in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 02-4656, pursuant to 28 U.S.C § 1441 et. seq., and in support thereof aver' the · ' of leadin%or other papers as required by law, except ns provided by 'udicial Conference of the United Slates la Septemoer, 19/ , ts q · ' DEFENDANTS ~S~OB~, P~ Sears, Roebuck and Company, and F C~ES) . ~;~ ~ MenceOfFkstListe~Defend~t ~ " ' Co~ Of Res' t~ H q PL~TIFF CASES ONL~ .., ~ t ~ ~ . ~ ........ ~ ~ OF L~ND NO~: ~ L~D cO~E~ATION C~ES, USE THE LOCA ~ ~ ~ OF L~U~ . ~oLWD ~ s ~ (C) ATTORNEYS (FIRM NAME, ADDRESS AND TELEPHONE NO.) Fred H. Hait, Esquire The Wellington 17 East High Street, Suite 101 Carlisle, PA 17013 II. BASIS OF JURISDICTION (Place an X in ONE BOX ONLY) [] I U.S. Government [] 3 Federal Question Plaintiff (U.S. Government Not a Party) [] 2 U.S. Government [] 4 Diversity Defendant Ondicate Citizenship of Parties in Item ln~ ~~. OF SUIT ~ TORTS [] 310 Airplane [] 315 Airplane Product Liability [] 320 Assault, Libel & Slander [] 330 Federal Employers' Liability [] 340 Marine [] 345 Marine Product Liability [] 350 Motor Vehicle [] 355 Motor Vehicle Product Liabi!ity [] 360 Other Personal Injury [] 441 Voting [] 442 Employment [] 443 Housing/ Accommodations [] 444 Welfare [] 440 Other Civil Rights [] 120 Marine [] 130 Miller Act [] 140 Negotiable lnstxument [] 150 Recovery of Overpayracnt & Enforcement of Judgment [] I$1 Medicare Act [] 152 Recovery of De faultedSmdent Loans (Excl. Veterans) [] 153 Recovery of Overpayment of Vctcran's Benefits [] 160 Stockholders's Suits - 190 Other Con~ract [] 195 Contract Product -- REAL PROPERTY [] 210 Land Condemnation [] 220 Foreclosure [] 230 Rent Lense & Ejectment ['-1 240 Torts to Land [] 245 Tort product Liability [] 290 All Other Real Property ATTORNEYS (IF KNOWN) Sidney R. Steinberg, Esquire Jonathan B. Sprague, Esquire Post & Schell, P.C. 1800 JFK Boulevard, 19~:h Floor Philadelphia, PA 19103 -~. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in (For Diversity Cases Only) ONE BOX for Plaintiff and ONE BOX for Defendant) PTF DEF PTF DEF Citizen of This Slate [] I [] I Incorporated or Principal Place of [] 4 [] 4 BuMness in thi~ S~atc Citizen of Another S~ate [] 2 [] 2 Incorporated and Principal Place [] 5 [] of Bnsiness in Another State Citizen or subject of a [] 3 [] 3 Foreign Nation [] 6 [] 6 Foreign County V. ORIGIN (Place an "X" in One Box Only) [] t Original proceeding [] 2 Removed from State Court FORFEITURE/PENALTY BANKRUPTCY OTHER STATU'I'~S -I 610 Agriculture =1 422 Appeal28 USC 158 [] 400 State Reapponlonment [] 410 Antitrust [] 620 Food & Drag [] 625 Drug Related Seizure [] 423 withdrawal [-I 430 Banks & Banking of Property 2'1 USC 28 USC 157 [] 450 Commerce. qCC Rates/etc. [] 630 Liquor Laws PROPERTY RIGHTS [] 460 Deportation [] 640 ILIL & Truck ~ 820 Copyrights [] 470 Racketeer Influenced [] 650 Airline Regs and Corrupt [] 660 Occupational "l 830 Patent Organizations SafetylHealth [] 840 Trademark [] 810 Selective Service [] 690 Other __ [] 850 Securities/ LABOR SOCIAL SECURITY Commodities/ [] 861 HIA (1395FF) Exchange [] 710 Fair Labor Standards UI 862 Black Luug(923) [] 875 Customer Challenge 12 USC 3410 Act [] 863 DIWC (405(g)) [] 891 Agrlculmral Acts [] 720 Labor/Mgmt Relations [] 863 DIWW (405(g)) [] 892 Economic Stabilization [] 864 SSID Title XVI Act [] 893 Environn~ntal Matters [] 730 Labor/Mgmt. [] 865 PSI (405(g)) [] 894 Energy Allocation Act ~ '~ ' i Reporting & [] 895 Freedom of laformafior ~ Disclosure Act -- FEDERAL TAX SUITS Act [] 740 Railway Labor Act [] 900 Appeal of Fee [] 870 Taxes Determination Under [] 790 Other Labor [] 871 IRS-Third Party Equal As~:ess to Litigation 28 USC 7609 Justice [] 791 Empl. Ret. Inc. [] 875 Customer Challenge [] 950 Constitutionality of Security Act 12 USC 3410 Slate Statutes [] 890 Other Slatuto~ Action [] 362 Personal Injury-- Med Malpractice [] 365 Personal Injury-- Product Liability [] 368 Asbestos Personal Injury Product Liability PERSONAL pROPERTY [] 370 Other Fraud [] 371 Truth in Lending Liability [] 380 Other Personal y. roperty Damage __ [] 385 Property Damage Product Liability -~R1SONER PETITIONS [] 510 Motioos to Vacate Sentence Habeas Coqms [] 530 General [] 535 Death Penalty [] 540 Mandamus & Others [] 550 Civil Rights [] 555 Prison Condition Tmmf¢ Judge from another district I'=l 7 Magistrate [] 3 Remanded from f-I 4 Reinstated or [] $ (specify) lq 6 Multidistfict Appellate Court Reopoaed Litigation Ju&,ment VI. CAUSE OF ACTION (cite T~e U.S. Ci*i~ State U.der Which Yo. 3a'e Faing And Write SriefStat~r~nt Of Canse. ~ Not Cite ]~di~ion~ Stam~ Units Div~i~.) Plaintiffs claim causes of action under Pear.ia co--on law: False Im~soment and Invasion of Privacy ~ECK · ~IS IS A CLASS A~ION DEAD'S CHECK YES only if deeded in complaint~ ~DER F.~C.P. 23 Excess of $75.000 ~RY DEM~: ~ v~ No HII. ~LATED CASE(S) IF (See in~ ~GE DOEST NO. A~ N/A DA~ 10/22/02 ~ ONLY APPLYING RECEIPT # AMOUNT SlO~j~o~^vroncavoP~com Sidney R. Steinberg, E~quire Jonathan B. Sprague, Esquire JUDGE MAG..JUDGE IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Ve Plaintiffs, SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants. CIVIL ACTION NO: DEFENDANT SEARS, ROEBUCK AND COMPANY'S NOTICE OF REMOVAL TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA: Defendant Sears, Roebuck and Co. ("Sears"), by and through its undersigned attorneys, hereby removes the above-captioned action, which is presently in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 02-4656, pursuant to 28 U.S.C § 1441 et. seq., and in support thereof aver the following: 1. Defendant Sears, Roebuck and Company ("Sears"), is a Defendant in a Civil Action commenced by Plaintiffs on or about September 27, 2002, by the filing of a Complaint in the Court of Common Pleas of Cumberland County, Pennsylvania, under the caption of Meghan Remsnyder and Maura Jenkins v. Sears, Roebuck and Co. and Concentra Medical Center, Civil Action No. 02-4656. (A copy of the Complaint is attached as Exhibit "A"). 2. The State proceeding names as Defendants Sears, Roebuck and Co. ("Sears") and Concentra Medical Center. 3. Defendant Sears is incorporated in New York and has its principal place of business at 3333 Beverly Road, Hoffman Estates, IL 60179. As such, Sears is a citizen of the States of New York and Illinois. ( See Affidavit attached as Exhibit "B"). 4. Defendant Concentra Health Services, Inc., d/b/a Concentra Medical Center is incorporated in Nevada with its principal place business at West Tower, Suite 400, 5080 Spectrum Drive, Addison, Texas 75001. Accordingly, Defendant Concentra Medical Center is a citizen of the States of Nevada and Texas. ( See Affidavit attached as Exhibit "C"). 2 5. According to the Complaint filed in the ,State proceeding, Plaintiff Remsnyder, an unemancipated minor, and her mother and natural guardian, Plaintiff Jenkins, are residents of Cumberland County in the Commonwealth of Pennsylvania. (See Complaint, Ex. "A", ¶¶ 1 and 2). 6. Defendant sears was served with a copy of the Complaint on October 3,2002. 7. Accordingly, pursuant to 28 U.S.C. § 1446 and Fed. R. Civ. P. 6(a), the instant Notice was timely filed within thirty (30) Clays from receipt of the Complaint. 8. The State Proceeding contains separate claims for invasion of privacy, false imprisonment and invasion of privacy under Permsylvania common law, Counts I, II and III, respectively. (.See Complaint, Ex. "A"). The State Court Complaint alleges that the Defendants separately intr~tded upon the solitude or seclusion of Plaintiff Remsnyder's private a. f~fairs or concerns by requesting that she submit to a work-related drug test. Additionally, the State Court Complaint alleges that Defendant Sears falsely imprisoned Plaintiff Remsnyder for the purpose of transporting her to a drug testing facility, which allegedly caused Plaintiff Remsnyder to suffer emotional distress, fear and humiliation. 9. In the State proceeding, Plaintiffs seek to recover compensatory and ~punitive damages in excess of $25,000 for each of the three counts, together with costs of suit and any such additional relief the Court may deem appropriate. (See Complaint, Ex. "A"). 10. Upon information and belief, the amount in controversy exceeds the sum or value of $75,000.00, exclusive of costs and interest. 11. This case is a civil action over which this Court now has diversity jurisdiction under 28 U.S.C. § 1332, because the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and[ costs, and is between citizens of different States. '12. Defendant Concentra Medical Center consents to the removal of this action. 13. Pursuant to the provisions of 28 U.S.C. §§ 1441 and 1446, this case is therefore one that may be removed to this Colurt by the Defendants. 14. Defendant Sears, upon filing the instant Notice of Removal in the United States District Court for the Middle District of Pennsylvania, has also filed copies of this Notice with the Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, in order to effect, removal of this action pursuant to 28 U.S.C. § 1446(d). 4 WHEREFORE, Defendant Sears, Roebuck and Company gives notice that this action, which is presently pending in the Court of Common Pleas of Cumberland County, Pennsylvania, under the caption of Meghan Remsnyder and Maura Jenkins v. Sears, Roebuck and Co. and Concentra Medical Center, Civil Action - Law 02-4656, has been removed from that Court to the United States District Court for the Middle District of Pennsylvania .and that this action should be placed on the docket of this Court for further proceedings as though it had been originally instituted here. DATE: IO/2 Z/0 2. BY: Respectfully submitted, POST & SCHELL, P.C. DAVID Q. JONES, ESQUIRE 1800 JFK Boulevard, 19th Floor Philadelphia, PA 19103 (215) 587-1000 Attorneys for Defendant Sears, Roebuck and Company 5 CERTIFICATE OF SERVICE I hereby certify that on this 22nd Day of October, 2002, a true and correct copy of the within Notice of Removal, with attached exhibits, has been served on all interested counsel and representatives listed below via first-class mail, postage pre-paid. Fred H. Hait, Esquire The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania 17013-3047 Attorney for Plaintiffs John Berry Vice President of Risk Management Concentra Inc. West Tower, Suite 400 5080 Spectrum Drive Addison, Texas 75001 Representative for Defendant Concentra Medical Center POST & SCHELL, P.C. Exhibit C IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEGHAN REMSYNDER, a minor by MAURA JENKINS, her mother natural guardian, Plaintiff SEARS ROEBUCK &CO. and CONCENTRA MEDICAL CENTER, Defendants CIVIL NO. 4:02-CV-1900 (Judge Jones) ORDER March 3, 2003 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: On September 21, 2002, Plaintiff Meghan Remsynder, a minor, and her mother, Maura Jenkins brought a civil action against the defendants in the Court of Common Pleas of Cumberland County, Pennsylvania. The complaint alleges that Meghan Remsynder, as an unemancipated minor, was employed as a sales associate of a store of Defendant Sears Roebuck in April of 2001. Meghan Remsynder was directed by a superior Sears employee to submit to a test which would detect the use of controlled substanc~es~. Parental consent for the test was not sought or obtained. Meghan Remsynder was transported to Defendant Concentra's facility on or about May 23, 2001, where a drug test was performed without parental consent. Count I of the complaint alleges an invasion of privacy against Defendant Concentra, Count II alleges false imprisonment against Defendant Sears Roebuck and Company, and Count III alleges an invasion of privacy against Defendant Sears Roebuck and Company. On October 23, 2002, the defendants removed the civil action to the United States District Court for the Middle District of Pennsylvania on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Defen(~tants also filed, on that same date, a motion to dismiss counts II and III of the complaint. On November 13, 2002, the Plaintiffs filed a motion for this Court to renmnd this civil action back to the Cumberland County Court of Common Pleas. The Clerk of Courts originally assigned responsibility of this ease to us, but referred it to Magistrate Judge J. Andrew Smyser for preliminary consideration. On January 3, 2003, the Magistrate Judge issued a report recommending that we remand the case back to the Court of Common Pleas and defer ruling on Defendants' motion to dismisss. Objections to the report and recommendation were due on January 17, 2003, to this date none have been filed. This matter is ripe for disposition. When no objections are filed to the report of a Magistrate Judge, we need only review that report as we in our discretion deem appropriate, Thomas v. Am, 474 U.S. 145, 151-52 (1985). In Wil~, 170 F.Supp.2d 480 (M.D. Pa. 2000), our colleague Judge A. Richard Caputo held that the appropriate stmadard for application in removal cases is at least a preponderance of the evidence standard. "The defendant must demonstrate that it is more likely than not that plaintiffs claim exceeds $75,000.00." Id._~. The Court held that this is a test that is in line with the nature of the federal court's limited.jurisdiction. Unlike a plaintiff's fight to file a suit in federal court, removal statutes are construed nmxowly; where plaintiff and defendant clash about jurisdiction, uncertainties are re~,;olved in favor of remand. See Bums v. Windsor Ins. Co, 31 F.3d 1092, 1095 (11Q Cir. 1994) (citing B0yer v. Snap-on Tools Corp., 913 F.2d 108(3d Cir. 1990)). Magistrate Judge Smyser's report reflects his determination that Defendants have not satisfied their burden. His determination is based upon the inability of the court to make a reasonably useful prediction as to what a jury will decide to be the value of an intrusion into the intangible rights and interests implicated. Nor can this court make a reasonably useful prediction as tc, what a jury will decide to be the value of the harm caused by the intrusion. We agree with the Magistrate Judge's report and recommendation. Because we were not presented with any argument to persuade las otherwise, we adopt Magistrate Judge Smyser's report and recommendation in toto. We will remand this case back to the Cumberland County Court of Comrnon Pleas. We also will decline to decide the pending motions to dismiss filed by the Defendants as we have determined we do not have jurisdiction over this case. NOW, THEREFORE, IT IS ORDERED THAT: 1. The report and recommendation filed on January 3, 2003 is adopted in toto (doc. 22). 2. This case is remanded back to the Court o:[' Common Pleas of Cumberland County, Pennsylvania. 3. The Clerk of Court is directed to close this; case. l.)'~ed States Dl~tfict Judge CERTIFICATE OF SERVICE I hereby certify that I served a tree and correct copy of the foregoing Preliminary Objections by mail upon the following counsel of record on the date indicated: Fred H. Hait, Esquire Fred H. Hait & Associates, P.C. The Wellington 17 East High Street, Suite 101 Carlisle, Pennsylvania Attorney for Plaintiffs Robert J. Marino, Esquire Dickie, McCamey & Chilcote, P.C. Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 Attorney for Concentra Medical Center BERT Z". TOY,'F~UIR'~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and su~nitted ~] duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please ] i~t the within matter for the next ~t Court. CAPTION OF CASE (entire caption must be stated in full) Meghan Remsnyder, a minor, by Maura Jenkins· her mother and natural guardian ( Plaintiff ) Sears, Roebuck and Co. and Concentra!. Medical Center ( Defepdmnt ) No. 02 civil 4656 (law) 19 State matter to be argued (i.e., plaintiff's motion for new tr~a], defendant's de~urrer to cc~plaint, etc. ): Sears' Preliminary Objections 2. Identify counsel who w~ ] l argue case: 0 (a) for plaintiff: _a~ress: Fred H. Halt, Esquire 17 East High Street, Suite 101 Carlisle, PA 17013-.3047 (b) for defendant: Address: Sidney R. Steinberg, Esquire Post & Schell, P.C. 1800 J.F.K. Boulevard, 19th Floor Phila., PA 19103 I w-ill notif~ ~11 parties in writing within two days that this case bas been 1 ~-~ted for ~t. 4. Argument Court Date: May 21, 2003 Atto~ey~~ears · Roebuck and Co. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and suk~itted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please l i~t the within matter for the next Ar~3%m~nt Court. CAPTION OF CASE (entire caption must be stated in D,]] ) Meghan Remsnyder, a minor, by Maura 3enkins, her mother and natural guardian ( p1 ai ntiff ) Sears, Roebuck and Co. and Concentra! Medical Center ( Defendant ) No. 02 Civil 4656 (law) 19 State matter to be argued (i.e., plaintiff's motion for new tr~m], defendant's denm~T~r to cc~plaint, etc.): Sears' Preliminary Objections 2. Identify counsel whowill arc3ue case: (a) for plaintiff: ~ess: Fred H. Hait, Esquire 17 East High Street, Suite 101 Carlisle, PA 17013-3047 (b) for defendant: ~ess: Sidney R. Steinberg, Esquire Post & Schell, P.C. 1800 J.F.K. Boulevard[, 19th Floor Phila., PA 19103 I will notify all parties in writingwithin t~days that thi~ case bas been li~ted for arc3tmr~_nt. 4. ~t Court Date: May 21, 2003 A~~~S~ea s, Roebuck and Co. G.D. No. 02-4656 IN THE COURT OF COMMON PLEAS OF MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiffs, Vo SEARS, ROEBUCK AND CO. CONCENTRA MEDICAL CENTER, Defendants. and CUMBERLAND COUNTY, PENNSYLVANIA ) ) ) ) Civil Action - Law ) ) ) ) ) ) ) ) No. 02-4656 Civil JURY TRIAL DEMANDED STIPULATION OF COUNSEL AND NOW, to-w/t, this ~ '~da,,,-c~ .... ~ J ....... ,~n, 2003, come theparties to the above-referenced case, by and through their attorneys, and hereby stipulate, pursuant to Pennsylvania Rule &Civil Procedure 1033, that Defendant, Concentra Medical Center ("Concentra"), may amend its New Matter to affirmatively plead a Joint Tortfeasors' Release Agreement entered into between Concentra and Plaintiffs. PA. I.D. #34331 The Wellington 17 East High St., Suite 101 Carlisle, PA 17103 (717) 249-4500 Respectfully submitted, Attorneys for Plaintiffs, Meghan Remsnyder and Maura Jenkins DICKIE, McCAMEY & CHILCOTE, P.C. Robert J. Marino, Esquire PA. I.D. #30284 Suite 400, Two PPG Place Pittsburgh, PA 15222-5402 (412) 281-7272 Attorneys for Defendant, Concentra Medical Center POST & SCHELL 1800 Jo~ F. Ke~edy Boulev~d, 19th Floor Philadelphia, PA 19103 (215) 587-1000 A~omeys for Defmdant, Sears, Roebuck and Co. I C) G.D. No. 02-4656 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiff, SEARS, ROEBUCK AND CO. and CONCENTRA MEDICAL CENTER, Defendants. CIVIL DIVISION No. 02-4656 Civil Issue No. AMENDED NEW MATTER Code: Filed on behalf of Defendant, Concentra Medical Center Counsel of record for this party: Robert J. Marino, Esq. PA. I.D. #30284 DICKIE, McCAMEY & CHILCOTE, P.C. Firm Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 JURY TRIAL DEMANDED G.D. No. 02-4656 IN THE COURT OF COMMON PIJEAS OF MEGHAN REMSNYDER, a minor, by MAURA JENKINS, her mother and natural guardian, Plaintiffs, SEARS, ROEBUCK AND CO. and CONCENTRA MEDICAL CENTER, Defendants. CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Law No. 02-4656 Civil JURY TRIAL DEMANDED AMENDED NEW MATTER AND NOW comes the Defendant, Concentra Medical Center ("Concentra"), by and through its undersigned attorneys, Dickie, McCamey & Chilcote, P.C., and files the following Amended New Matter: Concentra incorporates by reference herein its Answer and New Matter to Plaintiffs' Complaint. 2. On or about January 7, 2003, Plaintiffs and Concentra entered into a Joint Tortfeasors Release concerning Plaintiffs' claims against Concentra in the above-captioned action. A true and correct copy of such Joint Tortfeasors Release is appended hereto as Exhibit "A" and the terms and conditions of the same are incorporated by reference herein. 3. Plaintiffs' claims against Concentra concerning the accident, injury and damage about which Plaintiffs complain in this action are barred by the terms of the parties' Joint Tortfeasors Release and, thus, Concentra cannot be held directly liable to Plaintiffs in this action. G.D. No. 02-4656 4. If Concentra is adjudged liable in contribution or indemnity in this action to any Defendant or Additional Defendant, which liability is expressly denied, then the terms of the parties' Joint Tortfeasors Release offset or otherwise eliminate any such liability. WHEREFORE, Defendant, Concentra, denies liability under any theory to any party to this action and pleads in defense to any direct and/or cross claims asserted against this Defendant the January 7, 2003, Joint Tortfeasors Release executed by Plaintiffs in favor of Concentra Medical Center. WHEREFORE, Defendant, Concentra Medical Center, hereby Honorable Court to enter judgment in its favor and against that of Plaintiffs. requests this Respectfully submitted, DICKIE, McCAMEY & CHIIJCOTE, P.C. Robert J. MalSno, Esquire PA. I.D. #30284 Suite 400, Two PPG Place Pittsburgh, PA 15222-5402 (412) 281-7272 Attorneys for Defendant, Concentra Medical Center 2 G.D. No. 02-4656 EXHIBIT "A" /OINT TORTFEAS~OR.S' RELE6SE ^GgE~qENT KNOW ALL M~ BY ~E P~ENTS, that we, ~um ]~nkina, iMividaally ~d as p~m and nazuml gua~i~ of M~g~ ~msny~r, a fo~er minor, and Maghafl Remsnyd~. in ~r o~ fight on ~r ~half, in con=id=rati~ of the payment of th~ s~ of ~ THOUS~D ($3,~.~}) ~L~RS, r~eipt of which is I~by acknowl~, p~d to us by or on ~halfof ~nc~, Inc.; Concen~ ~upational Heal&cam Ha~sburg, L.P. ~a ~ncenwa Medic~ Cenler, ~ all o~= mla~ ~ affilia~ =atiti~ Ch~inafter '~ntn"). do hereby rd~ ~d f~ewr d~har~ ~= ~id Conc~n=a and Z=ich N~h A~6ca lng~ance, ~ncen~a's insurance ca,er, and their g~, insurers, ~=smrs, su~rs. ~ ~ a~l~ co~orations ~ e~fi6~, and =sig= all liability, actio~, causes of action, j~g~ts, cla~s a~ do~da, of wha~s~v~ kind ~ na~, including clai~ ~r c~butim or indemnity, which we have, ~y ~v= or claim =naaement to, w~er ~o~ or ~o~, fore~n or uafores~n, which arise ~ may aris= or which arose or~y a gs~ of or in ~y way ~n~tM with the ~cldeat whi~ ~cun~ on May 23, 2~1. when Megh= Re~ny~ gay= a mine s~ple. ~ ~n ora d~g ~r~ning test, at C~'s facRiW ~ ~isburg-~, = a ~sult of which s~ susminM ~in alleg~ ~rsong inj~ie= ~d ~ges and on ~ount of lawsuit w= b~ght ~ the Court of Co~ PI~ of Cum~ri~d Cowry, Pennsyi~ni~ at d~ num~ 02-~56 Civil. ~=n ~ov~ ~ &= U.S. Di~ict ~un for ~e Mi~la ~s~ct of P~lvania at d~k~ numar C.A, 4:02-~-1~. Sh~ld it ~ dete~n~ that the ~y h~ein no~ a Ionf~gor wi~ ~p~t ~ &is i~d~nt, {hen ~ere wil~ ~ no ~ion in ~.d~ages r~ove~ble · from any o~=r ~n ox c~o~fion. But ifa v=rdict or judgm=nt in o= favor ~es~s in a ctai~ verdict or judgment for cont~on a~or ~dem~ty a~inst ~= p~y h~in re~, · m we will not ~nforcc ~ r~ght to corec{ &e ~ict or judgment to the extant ~t s~h cnfo~emem crates liability age,st t~ p~y M~ ~el~s~. In such cvenh we agree that we wiR ~tisfy th~ v~dict o~ jud~t to the ~xt~t n~ to eliminate ~e claim of liability ~th~ party herein ml~s~d ci&~ to me et to any party ctaimi~ eont~bufion ~or ~demnity, Fu~, Pa~e 1 of 4 will rake no action to prevent th~ l~rtte~ herein released from asserting their fighI of'con~bullo~ and indemnity against other parties determined to b~ joint tortf~asors wilh the parties herein released, to the exlent that the payment herein has discharged ~he common liability or has exceeded the individual share of the liability and, further, we agree that ~o the extent that the parties herein released are ~titled to indemnity and/or contribution, w'e will r~uce or. satisfy our verdict at judgment against such oth~ joint torffeasors. It is the exgnes~ intent of this Agreement that this release shall not in any way affect the right~ of thc parties herein release to pursne claims for contribution and/or mderanity arising out of the accident agains~ any other responsible pony. It is sI~Cifically intended that this release is a Joint Tortfeasots Refuse pursuant to the terms of the Pennsylvania Uniform Contribution Among Tortfeasors Act, 1951, July 19, P.L. 1 t30, as r~- enacted by tM Act of 1976,1uly 9, P.L. 586 (42 Pa. C.S.A, Section 8321 et s~.), with the additional provision that this releas~ is intended to extinguish all rights of indemnity against the panics' herein released. It is further understood and agreed that no clairr~ or demands are being releas~ which we may have against any other pecan or corporation on account of the above-described incidtm. Howev~, shoukl it b~ ~termined that the parties herein releas~l and any other p~rson, corporation at entity am jointly and stventlly liable with respect to this incident, then the damages recoverable against all such tortfeasor~ other than the party here. in released shall be reducM by the amount of the greatest of the following thr~ sums: (a) Thai proportion of th~ tom] dollar amount awarded as damagc~ in thc ratio of the amount of causal negligcnc~ of the patties herein released to thc amount of the causa] negligeoc~ attributed to all parties against whom a verdiu'.t or judgment is obtained (i.e. the pro-ra~ share or proportion of comrnon liability c~ a negligence basis of the parties roleasecl heroin); or That proportion of'the total doUax amount awarded as damages in the ratio of the amount of causal tortious conduct of the parties herein released to the amount of the cau~al tonious cooduct attributable to all parties against whom a verdict or judgmenria, obtained Page 2 of 4 (i.e. the pro-rata sh~re o~ proportion of common liability on a c .oparative contribution basis of tho parties released h~¢Jn); or (c) The amount paid as cc~sJdera6on for this release. We warrant that we have not made any previou~ settlement with and have nm releasetl any person, corporation or other ~tity from any claims arising out of the incident above-descrit-~l, other thim this settlement reached and releases gas, eh pursuant to the Pennsylvania Uniform Contribution Among Tortfeasors A~t. and we furthex agree to indemnify and bold harmless the patties herein released fro~ any loss, claim, liability, cost or expense, including attorney's, fee-.n growing out of any claim or suit against the pani~ heroin rel~sed for contribution and/or indemnity by a~ty other torlfeasor or aileg~ torffeasor ~s a rosult ora br~.ch of this agreement and ~s warranty, or by anyone acting ot~ my I~half for the purpose of enforcing a further claim for damages on accouut of the alleged exposure and injuries retched to herein. We furfl~r agree that wherever- Jn this Release th~ singular i~ us~l, it ~lso n:fers to the plural, and vice VerSa, W~ also expressly agree to indemnify and hold harmless the parties here. in released from all losses, demands, claims, liability, actions, judgments, costs or ¢xpemes, including attorney's fees, growing out of claims made by any person, company or firm claiming any subrogation ~letcst (Worlune~'s Compensation or otherwise), against whom we have made any claim for benefi~ or against whom we may make a claim to benefits ~n the future, in the event said per,on, company or firm attempts to enforce such alleged right of subrogation against Concentra and/or Zurich North America insurance Pertaining to any of the mat£e~'s referred to in this release. We agree to execute all appropriate and n~ccssao, documents to enable the party hm-ein r~lcased ~o plead the effect of t~s ~'elease in any ]egat proceodin§. We further agree to obtain, if required by ]aw or rule of court, court approval for this settlement and reit:nsc. We understand and agree that the paymetlt referred to hc~-ein is in compromise ora dispu~:~ claim and shall not be construed as an admission of liability on the patty of the party herein released since liability is expressly denied. Page 3 of 4 WE Iq'EREB Y ACltdqO~E~E THAT WE HAVE READ THIS RELEASE, HAVE CONFERRED WITH MY ATTORNEY, AND UNDERSTAND THAT BY SIONING THIS RELP. ASE WE HAVE P~LEASED MY RIGHTS AGAINST THE PARTi~ HEREIN RELF_.ASED AND THAT WE 1;4AVE LIMITED MY RJGHTS AGAINST ANY OTHER TORTFEA$ORS IN ACCORDANCE WITH THE TERMS OF THIS RELF2,SE IN WITN'F_,SS WHEREOF, and with the intent to Im legally bound hereby, we have hereunto set our han~ ~nct s~ls ,his'~7 day o~koJ'~,~7/-/4~ 3 aura Jcakins, Inlt'~'~all7 'and ~ ~mnt and n~al guardim of Mean Remsnyd~[ a fom,r miff SWORN 'to ,a, rD SuBsC~taED TO 'REPORE me this '-fi ~ v , Or _.=J/2 .......................... t::2'5 ",--, :~-::,. ~ Social Securky Namber; Page 4 of 4 VERIFICATION I, Robert J. Marino, Esquire ofDickie, McCamey & Chilcote, have read the foregoing Amended Answer and New Matter. The statements therein are correct to the best of my personal knowledge or information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities, which provides that ifI make knowingly false statements, I may be subject to criminal penalties. ert J. Marino G.D. No. 02-4656 CERTIFICATE OF SERVICE I, Robert J. Marino, Esquire, hereby certify that a tree and correct copy of the foregoing Amended New Matter was served on the following by United States First Class Mail, postage prepaid, this the ;1~4~' day of April, 2003: Fred H. Hait, Esquire Fred H. Hait & Associates, P.C. The Wellington 17 East High Street, Suite 101 Carlisle, PA 17013 Attorneys for Plaintiffs Sidney R. Steinberg, Esquire David Q. Jones, Esquire POST & SCHELL, P.C. 1800 John F. Kennedy Boulevard Philadelphia, PA 19103 Attorneys for Defendant Sears, Roebuck and Co. Respectfully submitted, DICKIE, MCCAMEY & CHILCOTE, P.C. Attorneys for Defendant Concentra Medical Center MEGHAN REMSNYDER, : IN THE COURT OF COMMON PLEAS OF A minor, by : CUMBERLAND COUNTY, PENNSYLVANIA MAURA JENKINS, HER MOTHER: And natural guardian, Plaintiffs VI. SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants : NO. 2002-4656 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO COUNTS II AND III OF PLAINTIFF'S COMPLAIN BEFORE HOFFER, P.J., OLEI~ GUIDO~ JJ. ORDER OF COURT AND NOW, this O~[4~ ' day of NOVEMBER, 2003, the Preliminary Objections of Defendant Sears Roebuck and Company in the form of a demurrer to Counts II and III of Plaintiff's claim are GRANTED and those Counts are DISMISSED. Fred H. Hait, Esquire For the Plaintiff Edward E. Guido, J. Sidney R. Steinberg, Esquire ..~.~fa.~A, ~ //- -~6- c~y For the Defendant 4~,,~,., '11 :~ Nd 9 Z AON ~0 MEGHAN REMSNYDER, : 1N THE COURT OF COMMON PLEAS OF A minor, by : CUMBERLAND COUNTY, PENNSYLVANIA MAURA JENKINS, HER MOTHER: And natural guardian, Plaintiffs V. SEARS ROEBUCK & CO., and CONCENTRA MEDICAL CENTER, Defendants NO. 2002-4656 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO COUNTS II AND III OF PLAINTIFF'S COMPLAINT BEFORE HOFFER~ p.J. OLER~ GUIDO~ JJ. OPINION AND ORDER OF COURT Plaintiff has filed a multi-count complaint alleging various causes of action against the defendants. Counts II and III allege causes of action for false imprisonment and invasion of privacy, respectively, against defendant Sears Roebuck and Company (hereafter "Sears"). Defendant Sears has filed preliminary objections in the nature ora demurrer to each of those counts. Thc parties have briefed and argued their respective positions. For the reasons hereinafter set forth, the preliminary objections will be granted. Standard of Review The standard to be applied to preliminary objections in the nature ora demurrer was succinctly stated by our Supreme Court as follows: NO. 2002-4656 CIVIL TERM A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature ora demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402, 408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Factual Background The allegations contained in the complaint may be summarized as follows. Plaintiff is a sixteen (16) year old unemancipated minor. While she was working as a sales associate for Defendant Sears, her supervisor accused her of drug use. Management demanded that she submit to a drug test. Several Sears' employees transported her to an off site drug testing facility operated by Defendant Concentra. A drug test was done without obtaining the consent of plaintiff's parent or guardian. Plaintiff sustained emotional injuries, including distress, humiliation, fear, shame and mental suffering. She requests damages for those emotional injuries as well as punitive damages. 2 NO. 2002-4656 CIVIL TERM DISCUSSION Defendant Sears argues that plaintiff's claims are barred by the exclusivity provisions of the Pennsylvania Worker's Compensation Act.~ While plaintiffconcedes that she was an employee of the Defendant Sears, she contends that her causes of action are not barred by the exclusivity provisions of the Act. After a thorough review of the applicable authority, we are satisfied that the defendant's position is the correct one. The Pennsylvania Worker's Compensation Act provides in relevant part as follows: The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined... 77 P.S. § 481(a). The Act goes on to state that: "The terms 'injury' and 'personal injury,' as used in this act, shall be construed to mean an injury to an employee,.., arising in the course of his employment and related thereto," 77 P.S. §411(1). It is clear that the interaction between the parties as alleged in the complaint was "in the course of(plaintiff's) employment and related thereto." It is also clear that intentional torts arising out of the employment relationship are subject to the exclusivity provisions of the Act. Poyser v. Newman, & Co., Inc., 514 Pa. 325, 522 A.2d 548 (1987). While plaintiff does not dispute these issues, she contends that our focus should be on her injuries rather than the conduct of her employer. ~ 77 P.S. § 1 et. seq. NO. 20024656 CIVIL TERM Plaintiff contends that the injuries she sustained do not fall within the purview of the Act. She relies on Urban v. DollarBank 725 A.2d 815 (Pa. Super. 1999) in support of her position. Her reliance is misplaced. The plaintiff in Urban filed a multi-count complaint against her employer for 1) malicious abuse of process, 2) intentional inflection of emotional distress, 3) defamation, 4) conspiracy and 5) negligent infliction of emotional distress. The complaint was based upon allegations that she had been "strapped to a gumey" and transported to a psychiatric interview pursuant to an application for an involuntary commitment filed by her employer under § 302 of the Mental Health Procedures Act of 1976.2 725 A.2d at 817. The employer knew that the facts it alleged in the involuntary commitment application were not tree. The trial court granted the employer's motion for stmunaryjudgment as to all counts, holding that the claims were barred by the Worker's Compensation Act. The Superior Court reversed only as to the defamation and malicious abuse of process claims. The Urban Court recognized that some injuries do not fall within the purview of the exclusivity provision of the Act. It noted that the "term 'injury' is not specifically defined in the Act." 725 A.2d at 819. Reviewing Pennsylvania case law, it concluded that "injury" as used in the Worker's Compensation Act encompassed "a physical or emotional impairment to one's person". Id. The Urban Court concluded that the injuries sustained in the defamation and abuse of process claims do not fall within the purview of the Act because neither involves an injury to the physical or emotional well being of the claimant. In referring to the defamation claim, the court stated, "(i)n contrast to one's physical or psychiatric well- being, a defamation action is designed to redress harm to one's reputation." 725 A.2d at 2 50 P.S. § 7302. NO. 2002-4656 CIVIL TERM 819. The rationale behind allowing the malicious prosecution claim to proceed was that "the essence of the tort is not physical or mental injury, but interference with the right to be free from unjustifiable litigation." 725 A.2d at 821. In the instant case, plaintiff has claimed that she suffered distress, humiliation, fear, shame, and mental suffering as a result of the defendant's actions. 3 All of those alleged injuries are "psychiatric" or "emotional" in nature. As such, they fall within the purview of the Worker's Compensation Act.4 Therefore, Defendant Sears' preliminary objections must be sustained. ORDER OF COURT AND NOW, this t~'~ day of NOVEMBER, 2003, the Preliminary Objections of Defendant Sears Roebuck and Company in the form of a demurrer to Counts II and III of Plaintiffs claim are GRANTED and those Counts are DISMISSED. Edward E. Guido, J. Fred H. Hait, Esquire For the Plaintiff Sidney R. Steinberg, Esquire For the Defendant 3 The complaint alleges that the accusation was made in front of her peers. However, there is no allegation that the accusation was false. Consequently, no claim for defamation has been made. 4The injuries claimed by plaintiff in this case are not unlike those claimed by the plaintiff in Urban as part of her claim for intentional infliction of emotional distress, a claim which the court held was barred by the Worker's Compensation Act.