Loading...
HomeMy WebLinkAbout99-03238<? Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS 1419 Timberline Drive Pottstown PA 19465 Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) 2520 Lisburn Road Camp Hill PA 17001 MARTIN F. HORN, individually and as Secretary, formerly Commissioner, of DOC 2520 Lisburn Road Camp Hill PA 17001 FRANK D. GILLIS, individually and as Superintendent, SCI-Coal Township, DOC 1 Kelly Drive Coal Township PA 177872 DAVID J. WAKEFIELD, individually and as Deputy Superintendent, SCI-Coal Township, DOC 1 Kelly Drive Coal Township PA 17872 BERNON LANE, individually and as Deputy Superintendent, SCI-Coal Township I Kelly Drive Coal Township PA 17872 PATRICE A. DUPNOCK, individually and as Personnel Director and EEOC officer, SCI-Coa" Township I Kelly Drive Coal Township PA 17872 No. ?j 3a38 c'u/T-? CIVIL - LAW ?, TIMOTHY D. MARA, individually and as Assistant Counsel for DOC 2520 Lisburn Road Camp Hill PA 17001 JOSEPH MUSHINSKI, individually and as former Major of the SCI-Coal Township Corrections Officers, SCI-Coal Township 1 Kelly Drive Coal Township PA. 17872 -and- JOHN AND JANE DOES, individually and as executives, managers, supervisors, officers, or attorneys of DOC 2520 Lisburn Road Camp Hill PA 17001 Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES YOU MUST TAKE ACTION WITHING TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED ON YOU BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN 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 OF FOR ANY 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 OUR WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE PA 17013 (717) 249-3166 Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS 1419 Timberline Drive Pottstown PA 19465 Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) 2520 Lisburn Road Camp Hill PA 17001 MARTIN F. HORN, individually and as Secretary, formerly Commissioner, of DOC 2520 Lisburn Road Camp Hill PA 17001 FRANK D. GILLIS, Individually and as Superintendent, SCI-Coal Township, DOC 1 Kelly Drive Coal Township PA 177872 DAVID J. WAKEFIELD, individually and as Deputy Superintendent, SCI-Coat Town ;hip, DOC I Kelly Drive Coal Township PA 17872 BERNON LANE, individually add as Deputy Superintendent, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 No. 9 9 3s 3 P Cu , e ?u._? CIVIL - LAW V PATRICE A. DUPNOCK, individually and as Personnel Director and EEOC of cer, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 TIMOTHY D. MARA, individually and as Assistant Counsel for DOC 2520 Lisburn Road Camp Hill PA 17001 JOSEPH MUSHINSKI, Individually and as former Major of the SCI-Coal Township Corrections Officers, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 -and- JOHN AND JANE DOES, individually and as executives, managers, supervisors, officers, or attorneys of DOC 2520 Lisburn Road Camp Hill PA 17001 Defendants COMPLAINT 1. THE PARTIES 1. Plaintiff herein is Douglas J. Rogers (Rogers), an African-American male, who at times set forth in this Complaint concerning events while he was employed in thj State Correctional Institution at Coal Township (SCI Coal Township), Pennsylvania, resided at 902 Spruce Street, IGulpmont, Pennsylvania 17834. At all other subsequent times he has resided at Pottstown, Pennsylvania address above. 2. Defendant, Commonwealth of Pennsylvania, Department of Corrections (DOC), is an -2- agency of the Commonwealth of Pennsylvania and at all times set forth herein has been the employer of Plaintiff and all Defendants. DOC is principally located at the above address in Cumberland County, Pennsylvania. 3. Defendant, Martin F. Horn (Horn), is sued herein by Rogers in his official capacity as Secretary of Corrections, formerly known as Commissioner of Corrections, of the Department of Corrections, Commonwealth of Pennsylvania, and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 4. Defendant, Frank D. Gillis (Gillis ), is sued herein by Rogers in his official capacity as Superintendent of SCI Coal Township and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 5. Defendant, David J. Wakefield (Wakefield), issued herein by Rogers in his official capacity as Deputy Superintendent of SCI Coal Township and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 6. Defendant, Bemon Lane (Lane ), is sued herein by Rogers in his official capacity as Deputy Superintendent of SCI Coal Township and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 7. Defendant, Patrice A. Dupnock (Dupnock ), is sued herein by Rogers in her official capacity as Personnel Director and Equal Employment Opportunity Officer of SCI Coal -3- Township and individually for her personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 8. Defendant, Timothy D, Mara (Mara), is sued herein by Rogers in his official capacity as Assistant Counsel for DOC and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 9. Defendant, Joseph Mushinski, is sued herein by Rogers in his official capacity as former Major of SCI-Coal Township Corrections Officers and individually for his personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. 10. Defendants, John and Jane Does (Does), are sued herein by Rogers in their official capacities as executives, managers, supervisors, officers, or attorneys as Assistant Counsel for DOC and individually for their personal acts, or failures to act, concerning one or more of the actionable, unlawful and/or discriminatory actions or omissions alleged herein. II. SUMMARY OF THE CLAIMS AND CAUSES OF ACTION 11. A summary of the statutory claims and causes of action set forth herein consist of violations of the Pennsylvania Human Relations Act (PHRA), 42 P.S. Sections 951-962.2, the Whistleblower Law, 43 P.S. Sections 1421-1428, and the Dragonetti Act 42 Pa.C.S.A. Section 8351, et.seq., in the occurrences of one or more of the following: (1) racially discriminatory discharge against Plaintiff by certain DOC officials, known and unknown; (2) the creation of and/or permitted existence and maintenance of a hostile work environment by DOC and certain officials in which environment Plaintiff was required to work and continues to work, and; (3) -4. acts against Rogers or failures to act by certain officials in retaliation against Rogers for having brought and successfully asserted a civil rights and/or affirmative action complaint of race harassment and/or discrimination against Rogers by a high ranking official of SCI-Coal Township and the wrongful aiding and abetting by the named individual Defendants of the discriminatory and retaliatory acts or omissions set forth herein in violation of tile PHRA. 12. A summary of state common law claims and causes of action set forth herein consist common law torts of (1) wrongful use of civil proceedings; (2) malicious prosecution (3) abuse of process; and (4) intentional infliction of emotional distress. III. FACTUAL BACKGROUND 13. On or about August 30, 1996, Rogers filed a race discrimination complaint at SCI- Coal Township, copying the Central Office of DOC, against the Major of the Corrections Officers institutional security force, Joseph Mushinski (Mushinski), Defendant herein, who on many occasions had made improper racially discriminatory, derogatory remarks to Rogers. 14. On or about October 1996, as a result of the filing of the complaint, Major Mushinski was found to have made such remarks, was suspended for 20 days, and was demoted to the rank of Captain. 15. Immediately following the suspension and demotion of Mushinski to rank of Captain, it became common knowledge at SCI-Coal Township that such disciplinary action against Mushinski was a result of the complaint Rogers filed. 16. The result of such knowledge being released into the work force at SCI-Coal Township was that the work place and work environment for Rogers at SCI-Coal Township became hostile since Mushinski was a management official generally popular and well-liked at -5- the institution particularly among management officials and the corrections officers of all ranks. 17. On or about late 1996 or early 1997, certain occurrences or conditions illustrating the existence of a hostile work place and work environment at SCI-Coal Township for Rogers following the discipline of Mushinski were: a. The unconcealed (except as to Rogers) and deliberate circulation and/or signing of a petition by the spouse of Mushinski, herself a ranking corrections officer, among the corrections officer and/or staff workforce protesting the discipline of Mushinski; b. The unconcealed (except as to Rogers) and deliberate collection or attempted collection of money by certain corrections officers and/or staff for payment to or for the benefit of Mushinski to replace part or all of his loss of pay from his suspension; C. The disclosure by Superintendent Prank D. Gillis (Gillis), Defendant herein, of SCI-Coal Township to a promotable corrections officer that he was denied promotion to a higher rank for which he was otherwise qualified and approved because of Rogers's complaint resulting in the demotion of Mushinski; and d. The general dislike for Rogers among many corrections officers and/or other staff members who were supervised by Mushinski and/or were personal friends with him as a result of Mushinki's discipline and demotion. 18. On November 13, 1996, while using a copy machine at SCI-Coal Township as part -6- of his duties, Rogers was approached by another employee, Thomas Hughes, and accused of jumping ahead in the use of the machine. 19. Al said time, Hughes taunted Rogers and attempted to provoke him, swore at Rogers and threatened to physically strike him, 20. Hughes additionally threatened Rogers by stating that he would "meet" Rogers at the campus of Bloomsburg University, where Rogers was enrolled in an education curriculum and attended classes in the evening. 21. Rogers finished his copying and left the area without further incident. 22. On November 14, 1996, the day following the incident at the copy machine, Rogers was in the staff dining room when Hughes, who was also present in the dining room seated with others, yelled across the room to Rogers words to the effect of, "I guess classes were canceled last night." 23. Rogers asked Hughes what he meant by that statement and whether Hughes was stalking him. 24. Hughes replied that to the effect that he went looking for Rogers on campus but did not see Rogers, but that maybe Rogers could ask his wife for help. 25. At that time, Rogers immediately asked Hughes to accompany him from the dining room to the office of Deputy Superintendent David Wakefield (Wakefield), Defendant herein, since Rogers had been previously instructed by Wakefield, following the Mushinski suspension and demotion, that there were individuals at SCI-Coal Township who had bad feelings or ill will toward Rogers as a result of the Mushinski matter and that Rogers should see Deputy Wakefield, as a supervisor, in the event of any problems with co-employees. -7- 26. Rogers went to Deputy Wakefield's office with Hughes immediately to attempt to have Deputy Wakefield resolve what Rogers perceived to be direct threats by Hughes against him and his spouse. 27. On the way to Deputy Wakefield's office, Hughes continued to taunt and attempt to provoke Rogers saying such things as "you're a pussy" and calling him "no balls Rogers" and continually telling Rogers to hit him or take a swing at him. 28. Upon reaching Deputy Wakefield's office with Hughes, Rogers and Hughes entered the office and shut the door behind them. 29. Deputy Wakefield asked both of them what was wrong and Rogers explained the events to Deputy Wakefield, as outlined above, and Rogers made the statement that if Hughes continued to threaten him and stalk him or his wife off duty at the university campus or elsewhere he would kill Hughes in self-defense if necessary. 30. At that juncture, Deputy Wakefield sent Hughes out of the office and told Rogers to calm down and not to make a threat to kill Hughes. 31. Rogers explained to Deputy Wakefield that he was using the expression in anger and as a defense to what was clearly, in his perception, a threat against his physical safety by Hughes. 32. Rogers asked Deputy Wakefield to order Hughes not to stalk him off duty. 33. Deputy Wakefield replied that he could not control off duty behavior of employees. 34. Rogers then re-stated to Deputy Wakefield that if Hughes persisted in this behavior toward him and if Rogers fclt threatened by Hughes physically he would kill him. 35. Rogers spoken words, set forth above, were said only to Wakefield, except for the -8- i one time Hughes was also present in the office before he was sent out, and were said in the context of self-defense and anger at the unprovoked aggression of Hughes. 36. Deputy Wakefield understood said words in the same context rather than as a threat to kill Hughes without provocation or outside the context of self-defense. 37. Wakefield then ordered Rogers to leave and report back to his work duties. 38. Rogers returned to his work station and duties as ordered by Deputy Wakefield. 39. After returning to work as ordered by Wakefield for approximately 4 hours without further incident, Rogers was contacted and escorted out of the institution with the explanation that he was banned from the institution and suspended pending investigation of the two incidents with Hughes on November 13 and 14 as stated above. 40. A ten (10) day suspension of Rogers resulted from the incident occurring on November 14 on the purported basis that Rogers had violated of Section 10 of the DOC Code of Ethics which provision essentially requires employees to treat each other with professional respect and courtesy. 41. Hughes was never investigated nor disciplined in any manner concerning either incident of November 13 or November 14, 1996. 42. Rogers believes, and therefore avers, that his suspension involving the incident with Hughes was a device and method of retaliation against him by Defendant Superintendent Gillis who seized upon the incident as an excuse to take unwarranted and improper disciplinary action against Rogers as a method of "paying back' or "getting even" with Rogers for causing embarrassment or humiliation to and/or bringing discredit upon Gillis and Gillis's Institution for having successfully asserted the complaint against Mushinski and, additionally, for Rogers -9- having gone outside the Institution with his complaint particularly to Central Office of DOC to whom Gillis reported. 43. Following Rogers's return to work after the November 1996 suspension two more incidents occurred which Rogers believes, and therefore avers, were deliberate attempts to take minor incidents or occurrences and make them into disciplinary actions against him as further retaliation for the Mushinski incident. a. In February 1997 Rogers parked his car in or near a visitors parking lot a practice which many employees had been doing. Nevertheless, Rogers was singled out and threatened with discipline by or on behalf of Defendants for parking there on occasion. Only when Rogers began copying down the license plate numbers of all employees parking in the lot on a particular day was threats of disciplinary action dropped; and b. In April 1997 Rogers bowed at the waist to visiting Deputy Commissioner William Love and Superintendent Gillis when passing them on institutional grounds on one particular day. A fact-finding session was held by Defendant Deputy Wakefield concerning the incident. Rogers was again threatened with discipline. It was pointed out at the fact-finding session that the practice of "bowing" at one's superiors had been practiced at the institution by many employees to various supervisors and managers over the year; and the threat of disciplinary action was withdrawn. 44. On June 23, 1997 Rogers was having a conversation with another employee, Corrections Officer I .Moraskie, on one of the institution's outside walkways while Moraskie was -10- walking just behind two other Corrections Officers I, Mark Henning and Houseman, all of whom were returning from eating. 45. Rogers asked Moraskie , among other things, where he was working and whether he would like to come over to E housing unit to work with Rogers and others. 46. Immediately after the conversation between Rogers and Moraskie had ended, Henning looked at Rogers and stated sarcastically that he, Henning, would not want to work on Unit E. The context of the situation and tone of the statement along with the direction the statement was given, gave Rogers the impression that Henning was being derogatory toward Rogers. 47. Henning then continued walking and returned to his Unit and Rogers went back onto Unit E. 48. Rogers telephoned from Unit E to Unit A where Hemming was working. 49. Henning answered the phone. 50. Rogers identified himself and asked Henning if Henning had a problem with him. 51. Henning replied "fuck you bitch" and hung up the phone. 52. Rogers called Unit A a second time and Henning answered and replied that Rogers was a bitch and hung up the phone again. 53. The term "bitch" in prison or correctional institutions is a slang for someone who is perceived to have informed on another person or, alternatively, is a slang term for a male who is forced to have sexual intercourse with another male. 54. Rogers then called the extension in Unit A for Robert Collins, Unit A manager and supervisor,. with the intent to contact Collins and discuss and hopefully rectify the problem -i]- between Henning and Rogers, but received a busy signal, 55. Rogers then decided to use some time from his pending lunch break and went from Unit E to see Collins in Unit A. 56. Rogers entered Unit A's vestibule area which connects to Units A-1 and A-2 and immediately saw Henning standing in the unsecured entrance door of A-1. 57. Henning began to come out of the entrance door and approach Rogers with his hands on his hips. 58. At that time Rogers and Henning exchanged angry words for approximately one minute concerning the incident which had just occurred between them. 59. Rogers had turned to leave and began walking to the vestibule door when Collins had apparently come down from his office above the vestibule and was talking to Henning about the incident. 60. Rogers turned to go to Collins and heard Henning saying something to Collins and as Rogers approached both of them Rogers asked Henning whether Henning had something further to say to him. 61. Collins asked Rogers to leave Unit A. 62. Rogers left Unit A as instructed. 63. No fight or attempt to fight occurred between Henning and Rogers. 64. Rogers began to leave for lunch, but was paged to report to Defendant Deputy Wakefield before he had an opportunity to leave. 65. Defendant Deputy Wakefield asked by Rogers to provide a handwritten statement of the incident which Rogers did. -12- 66. After going to lunch Rogers returned to work. 67. After approximately two hours back at work, Rogers was called to the Defendant Superintendent's conference room and prior to being permitted to enter the room he was forced by order of Acting Major McAnneny to submit to a pat down search of his person by Lieutenant Faust for unknown reasons. 68. After the search Rogers was permitted to meet briefly with his union steward, Gene Mull. 69. Following the meeting with Mr. Mull, Rogers was given a letter which apparently was prepared immediately before which indicated that Rogers was to be suspended without pay for a period of thirty (30) days pending investigation of the incident between Rogers and Henning and the termination was a possible sanction against him resulting from the incident. 70. Rogers was then escorted out of the institution by Acting Major McAnenny and Lieutenant Faust. 71. Henning, who is white, was neither investigated nor suspended pending the investigation of the incident between him and Rogers. 72. Henning had a personal meeting with Defendant Superintendent Gillis immediately following Henning's completion of his work shift on the day of the incident at the same time Rogers was being escorted out of the institution as set forth above. 73. Rogers subsequently attended, participated in, and cooperated with a fact finding session held to investigate the incident. 74. Following the fact-finding session, Rogers was ordered to attend a pre-disciplinary conference (PDC) to defend or answer to his alleged violations of 4 separate sections of the -13- DOC Code of Ethics. Those sections were Section 2 (fighting), Section 8 (leaving his assigned post), Section 10 (lack of professional courtesy or respect to Henning), and Section 29 (untruthfulness during investigation). 75. Rogers subsequently attended, participated in, and cooperated with the PDC. 76. The PDC panel, which panel consisted of individual Defendants Deputy Superintendents David J. Wakefield and Bemon Lane, and Patrice Dupnock, who was the Personnel Director and Equal Employment/Affirmative Action Officer for SCI-Coal Township, found that Rogers had violated all 4 sections stated above and recommended to Superintendent Gillis that Rogers be terminated from his employment. 77. Defendant Superintendent Gillis reviewed the findings and recommendation of termination of the PDC panel and also recommended termination to an unidentified individual or individuals believed to be employed by DOC. 78. Rogers was terminated from employment by one or more Defendant John or Jane Does, believed to be employed in the Central Office of DOC and officially notified by SCI-Coal Township letter dated July 23, 1997. 79. Henning, who is a white male, was never investigated or charged by DOC or its individual named Defendants with any violation of the DOC Code of Ethics. 80. Henning, who is a white male, has never received any disciplinary action relating to the June 23, 1997 confrontation with Rogers. 81. Rogers appealed the November 1996 suspension and the July 23, 1997 termination to the State Civil Service Commission (SCSC) of the Commonwealth of Pennsylvania. 82. The SCSC conducted three days of hearings in the appeal. -14- 83. During the pendency of the SCSC appeal and prior to the commencement of its hearings, Rogers applied for unemployment compensation (UC) benefits. 84. DOC, through Defendant Mara, unreasonably, without probable cause and/or in retaliation against Rogers contested Rogers's application for UC benefits. 85. The legal test under Pennsylvania law in effect at that time for whether a claimant who was terminated from employment can be denied UC benefits is whether that employee committed wilful misconduct while employed resulting in such termination. 86. A hearing was held in or about September 1997 before UC Referee Frank Vivier concerning Rogers's eligibility for UC benefits. 87. At the UC hearing, DOC, through Defendant Mara,: a. withheld relevant exculpatory documents or documents containing information against the interests of DOC, such as witness statements, recording of fact-finding sessions minutes or notes, recording of PDC minutes or notes; b. failed to produce relevant witnesses under its control and employment whose testimony would favor Rogers or corroborate Rogers's version of events surrounding his termination; c. instructed witnesses such as Henning that he did not have to attend the UC hearing since he was not scheduled to work that day; and/or d. falsified and/or fabricated charges and/or evidence in conjunction with witnesses who were called to testify in an attempt to deny UC benefits to Rogers, to wit: (i). eliciting and presenting testimony that Rogers was assigned to a post -15- in Unit E at SCI-Coal Township as a Corrections Counselor 2 when it was known or should have been known from testimony provided by DOC employees at the UC hearing that no post was assigned and that no posting orders ever existed for Corrections Counselors assigned to Units; (ii). eliciting and presenting testimony that Rogers fought with Corrections Officer Henning when it was known or should have been known that no fight had occurred; and/or (iii). eliciting and presenting testimony that indicated that Rogers's confrontation with Henning was unprovoked by Henning when it was known or should have been known that Henning had instigated or provoked Rogers in the confrontation for which Rogers was terminated. 88. Rogers was awarded UC benefits on the basis that DOC failed to meet its burden of proof that he had committed wilful misconduct. 89. DOC, through Defendant Mara, unreasonably, without probable cause, and/or in retaliation against Rogers further contested the award of UC benefits by the Referee by filing a frivolous appeal of the Referee's Decision to the Unemployment Compensation Board of Review (UCBR). 90. DOC, through Defendant Mara, submitted no oral or written argument or rebuttal to the UCBR challenging the findings of fact or conclusions of law in the decision of the UC Referee. 91. The UCBR affirmed the Referee's Decision. 92. DOC, , through Defendant Mara, unreasonably, without probable cause, and/or in -16- retaliation against Rogers further contested the award of UC benefits by the UCBR by filing another frivolous appeal of the UCBR Decision and Order to the Commonwealth Court of Pennsylvania. 93. The Commonwealth Court affirmed the decisions and orders of the Referee and UCBR. 94. The three aforementioned hearings of the civil service appeal before the SCSC were subsequently conducted in October 1997, December 1997, and February 1998. 95. The legal test under Pennsylvania's Civil Service Act for whether a civil service employee can be removed (herein after referred to by use of the word "terminate") from civil service employment is whether "just cause" existed to remove the employee. 96. The burden of proof to demonstrate "just cause" in support of a decision to terminate an employee within the protection of the Civil Service Act is upon the employer. 97. The evidence supporting a finding of "just cause" in support of a decision to terminate an employee within the protection of the Civil Service Act must include criteria which is job related and must in some rational and logical manner touch upon the competency and ability of the terminated employee to perform his/herjob. 98. At the SCSC hearings, DOC, through Defendant Mara, unreasonably, without probable cause, and/or in retaliation against Rogers, deliberately and intentionally: a. withheld relevant documents and tape recordings of fact-finding sessions minutes or notes and/or PDC minutes or notes concerning the termination of Rogers; and/or It. falsified and/or fabricated charges and/or evidence in conjunction with -17- witnesses who were called to testify in an attempt to deny Rogers's reinstatement to his job, to wit: (i). eliciting and presenting testimony that Rogers fought with Corrections Officer Henning when it was known or should have been known that no fight had occurred; and/or (ii). eliciting and presenting testimony that indicated that Rogers's confrontation with Henning was unprovoked by Henning when it was known or should have been known that Henning had instigated or provoked Rogers in the confrontation for which Rogers was terminated. c. advanced and litigated false allegations of violations of the Code of Ethics by Rogers, to wit: (i). that Rogers had left his assigned post when it was known or should have been known following earlier testimony at the UC hearing that Rogers was not assigned to a post in Unit E at SCI-Coal Township as a Corrections Counselor 2 and that no posting orders ever existed for Corrections Counselors assigned to Units; (ii). that Rogers and Henning had fought; and (iii). that Rogers's confrontation with Henning was unprovoked or not instigated in any manner by Henning d. failed to dismiss allegations of violations of the Code of Ethics when it was known or should have been known at the conclusion of the SCSC hearings: (i) that Rogers had not left any assigned post and that he had not been -18- assigned to any post; (ii) that no evidence had been produced by DOC at said hearings concerning the assignment of a post on Unit B to Rogers or his leaving such alleged post; (iii). that Rogers and Henning had not fought; (iv). that Rogers's confrontation with Henning was provoked or instigated in some manner by Henning; (v). that no evidence had been produced by DOC at said hearings indicating who made the decision to terminate Rogers and the reasons such person or persons relied upon for such decision; and (vi). that no evidence had been produced by DOC at said hearings indicating that any criteria required to show "just cause" in the termination of Rogers was followed or used by the terminating person or persons. 99. On or about February 1999, the SCSC issued a Decision and Order finding for Rogers on all issues, including credibility, and Rogers was reinstated to his position of Corrections Counselor 2 at his former institution. 100. On or about March 31, 1999, by agreement between Rogers and DOC, Rogers reported to SCI-Chester in or near Delaware County, Pennsylvania and assumed a position as a Corrections Counselor 2. 101. On or about early April 1999, Rogers was ordered to attend the Basic Training Academy of DOC for training associated with and used in conjunction with new employecs. 102. The order to Rogers requiring him to attend basic training was approved of and/or -19- given by one or more Defendants John or Jane Does of the Central Office of DOC. 103. The order to Rogers requiring him to attend basic training was unlawful and improper in that it was further retaliation and harassment of Rogers for having successfully prevailed against DOC as set forth above and part of a plan or device to further extend a hostile work environment to other geographic locations where Rogers may be employed with DOC in an attempt: a. to have Rogers "blacklisted" and frustrate him sufficiently that he would either quit or encounter further co-employee hostility; b, to begin a renewed campaign of falsifying and/or fabricating disciplinary charges and/or violations of the DOC Code of Ethics in order to pretext a termination of Rogers in the near future; to wit: (i) on the first day of reporting to the Academy, April 26, 1999, Rogers was initially told by DOC employees working at the Academy that he had trainee status and was to be subjected to treatment as a trainee, which treatment includes oral harassment, mistreatment, and abuse of trainees, restrictions in movement on Academy grounds, and mandatory , attendance at and passage of all basic training courses, all of which constitute violations of numerous DOC policies and the Code of Ethics; (ii). Rogers informed the Academy staff that he was not a trainee and had been and was a Corrections Counselor 2; and (iii). Rogers was nevertheless issued within the first four hours of his first day a "verbal reprimand" in writing for displaying "unprofessional -20- conduct" that he had allegedly "displayed" when informing the Academy employees of his status. 104. Plaintiff Rogers believes, and therefore avers, that he was disciplined in and discharged from employment with DOC for racially disparate and/or discriminatory reasons while another white employee was not, and, further, disciplined in and discharged from employment with DOC in retaliation for having asserted his federally protected rights against race discrimination by a white management employee of DOC, and, further, that he was and has been subjected to a racially or otherwise hostile work environment directed at him by certain white employees for having asserted his federally protected rights against race discrimination and for having prevailed in numerous litigated matters arising out of the same factual circumstances set forth herein. 105. Plaintiff Rogers believes, and therefore avers, that all reasons or rational for the severity and type of discipline and discharge he incurred were mere pretext for the underlying motives of DOC as set forth herein. 106. Plaintiff Rogers believes, and therefore avers, for purposes of his allegation of discriminatory discharge and retaliation herein, that DOC, acting through common managers and supervisors at SCI-Coal Township in addition to other Institution, and through common in-house attorneys at law, such as Defendant Mara, has permitted other employees, particularly non- African-American male employees to violate more egregious or substantial ethical provisions within its Code of Ethics within a reasonable time period relative to the events alleged herein and that such employees have not suffered or incurred any disciplinary proceedings or, alternatively, have been disciplined in a grossly disparate and discriminatory manner relative to that suffered -21- and incurred by Plaintiff Rogers for the alleged activities between Rogers and his co-employees. 107. Such disparate and/or discriminatory discipline and, in some cases, discriminatory non-discipline, for known violations of DOC Code of Ethics, at SCI-Coal Township and other state Institutions includes, among other things: a. Commissions and convictions of federal or state criminal felonies by employees such as misuse of institutional mail and/or postage and aggravated assault upon police officer; b. Commissions and convictions of state misdemeanors by employees such as larceny, driving while under the influence of alcohol, and use of controlled substances; c. Chronic absenteeism or lateness for work by certain employees; and d. Mistreatment of incarcerated inmates, to include felonious physical assaults upon them ; e. Sexual harassment and/or horseplay between male and female employees to include the handcuffing of a female employee to bars or other structure within SCI-Coal Township by a male employee for purposes of sexual or sexually- related enjoyment; f Physical assaults and/or fighting between employees on and off duty; and g. engaging in a coverup of errors actions and/or omissions committed by management and supervisor personnel, the identity of some of whom are common to this action, during the prison riots at SCI-Coal Township in August 1995. -22- COUNT ONE - _VIOLATIONS OF THE PENNSYLVANIA HUMAN RELATIONS ACT Rogers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania Department of Corrections 108. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein. 109. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute violations of the Pennsylvania Human Relations Act (PHRA), 42 P.S. Sections 951- 962.2 in that they constitute one or more of the following: (1) racially discriminatory discharge against Plaintiff by certain DOC officials, known and unknown; (2) the creation of and/or permitted existence and maintenance of a hostile work environment by DOC and certain officials in which environment Plaintiff was required to work and continues to work, and; (3) acts against Rogers or failures to act by certain officials in retaliation against Rogers for having brought and successfully asserted a civil rights and/or affirmative action complaint of race harassment and/or discrimination against Rogers by a high ranking official of SCI-Coal Township and the wrongful aiding and abetting by the named individual Defendants of the discriminatory and retaliatory acts or omissions set forth herein in violation of the PHRA. COUNT TWO - AIDING AND ABETTING VIOLATIONS OF THE PA. HUMAN RELATIONS ACT VIOLA'T'IONS Rogers v. Martin F. Horn, Secretary and Commonwealth of Pennsylvania, Department of Corrections and all named Individual Defendants individually and in their official capacities 110. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth -23- herein for the allegation pertaining to said Defendant 111. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute violations of the Pennsylvania Human Relations Act (PHRA), 42 P.S. Sections 951- 962.2 in that the individual named Defendants, by their acts and/or omissions, wrongfully aided and abetted Defendant DOC in the commission of or, alternatively, the continuation of the discriminatory and retaliatory acts or omissions set forth herein: (1) racially discriminatory discharge against Plaintiff by certain DOC officials, known and unknown; (2) the creation of and/or permitted existence and maintenance of a hostile work environment by DOC and certain officials in which environment Plaintiff was required to work and continues to work, and; (3) acts against Rogers or failures to act by certain officials in retaliation against Rogers for having brought and successfully asserted a civil rights and/or affirmative action complaint of race harassment and/or discrimination against Rogers by a high ranking official of SCI-Coal Township and the wrongful aiding and abetting by the named individual Defendants of the discriminatory and retaliatory acts or omissions set forth herein in violation of the PHRA. COUNT THREE - WHISTLEBLOWER LAW Rogers v. Martin F. Horn, Secretary and Commonwealth of Pennsylvania, Department of Corrections and all individually named Defendants 112. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant -24- 113. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute violations of the Whistleblower Law, 43 P.S. Sections 1421-1428, in that they constitute one or more of the following: acts against Rogers or failures to act by certain officials in continuing retaliation against Rogers for having brought and successfully asserted a civil rights and/or affirmative action complaint of race harassment and/or discrimination against Rogers by a high ranking official of SCI-Coal Township in violation of the PHRA and Title VII of the Civil Rights Act, and for Plaintiff otherwise taking action to protect his civil rights pursuant to federal and state law. COUNT FOUR - DRAGONETTI ACT/STATUTORY WRONGFUL USE OF CIVIL PROCEEDINGS Roeers v. Martin F. Horn Secretary and Commonwealth of Pennsylvania Department of Corrections and all individually named Defendants 114. Plaintiff incorporates paragraphs l through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant 115. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute violations of the Dragonetti Act, 42 P.S. Sections 8351-8355. COUNT FIVE - WRONGFUL USE OF CIVIL PROCEEDINGS Roeers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania Department of Corrections and all individually named Defendants 116. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein -25- as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant 117. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute the wrongful use of civil proceedings at common law. COUNT SIX - MALICIOUS PROSECUTION Roeers v. Martin F Horn Secretary and Commonwealth of Pennsylvania. Department of Corrections and all individually named Defendants 118. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant 119. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute malicious prosecution at common law. COUNT SEVEN - ABUSE OF PROCESS Roeers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania. Department of Corrections and all individually named Defendants 120. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant 121. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above -26- constitute abuse of process at common law. COUNT EIGIIT - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Rovers v. Martin F. Horn. Sccretna and Commonwealth of Pennsylvania, Department of Corrections and all individually named Defendants 122. Plaintiff incorporates paragraphs 1 through 107 as if they were fully set forth herein as to all Defendants, individual and departmental, except Defendant Mara. Plaintiff incorporates paragraphs 1 through 12 and 81 through 107 as to Defendant Mara as if they were fully set forth herein for the allegation pertaining to said Defendant 123. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitute violations of the Dragonetti Act, 42 P.S. Sections 8351-8355. V. DEMAND FOR RELIEF WHEREFORE, Plaintiff prays the Court enter judgment against Defendants and in his favor on any claims and causes of action brought against such Defendants, as enumerated in Counts One through Eight, in an amount in excess of the jurisdictional amount requiring arbitration referral by local rule. Plaintiff respectfully requests specific relief in the form of attorneys fees, costs of litigation relating to the matters set forth herein, back pay, front pay, and allowable compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and any and all other non-pecuniary losses incurred by Plaintiff, as permitted by law, resulting from the improper and/or unlawful acts or omissions set forth herein. -27- Plaintiff respectfully further requests relief in the form of punitive damages, as permitted by law. Plaintiff does not seek punitive damages on counts pertaining to the Pennsylvania Human Relations Act (Counts One and Two herein), since such damages have been specifically held to be not recoverable under such Act. VI. DEMAND FOB JURY TRIAL Plaintiff respectfully demands a trial by jury on all matters raised herein to such extent a jury trial is permitted by law on any particular claim or cause of action. Respectfully submitted, Michael J. Wilson Attorney for Plaintiff -28- VERIFICATION I hereby verify that the statcments contained in this complaint are true and correct to the best of my knowledge, information, and/or bclief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. May 25. 1999 (Date Signed) Dougla J. Ro rs cr •c f- , v ? l?n °J 1 1-6 1 FRANCIS R. FILIPI E-Mail: ffilipi rr attomeygeneral.gov Senior Deputy Attorney General Direct Dial: (717) 787-3874 Office of Attorney General FAX: (717) 772-4526 S" Floor, Strawberry Square Harrisburg PA 17120 Attorney for the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David Wakefield, Bernon Lane, Patrice A. Dupnock, Timothy D. Mara and Joseph Mushinski Attorney ID# 18630 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS, Plaintiff V. No. 99-3238 Civil COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants PRELIMINARY OBJECTIONS FILED ON BEHALF OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, MARTIN F. HORN, FRANK D. GILLIS, DAVID WAKEFIELD, BERNON LANE, PATRICE A. DUPNOCK, TIMOTHY D. MARA AND JOSEPH MUSHTNSKI Defendants Commonwealth of Pennsylvania, Department of Corrections, Martin F. Hum, Frank D. Gillis, David Wakefield, Bemon Lane, Patrice A. Dupnock, Timothy D. Mara and Joseph Mushinski, by their attorneys, object preliminarily to the action as follows: 1. Lack of Jurisdiction Plaintiff identities the eight objecting defendants as the Department of Corrections and seven of its officials and employees. Complaint, ¶T 2-9. From the allegations it is clear that all objecting seven natural person defendants were functioning in their capacities as employees or officials of the Pennsylvania Department of Corrections. All activities about which plaintiff complains are actions taken by them as Commonwealth officials or employees. 3. Counts Four through Eight advance claims under various theories of commission of statutory and common law, intentional torts. Specifically, a statutory claim (a Dragonetti Act claim) of wrongful use of civil proceedings (Count Four), a claim of wrongful use of civil proceedings at common law (Count Five), malicious prosecution (Count Six), abuse of process (Count Seven) and intentional infliction of mental distress (Count Eight). 4. The Commonwealth and its employees and officials may only be sued for those claims for which the Commonwealth has waived its sovereign immunity. The Commonwealth has not waived its immunity either for its agencies or for its employees for any action brought except for nine categories of negligent tort. 42 Pa.C.S. § 8522. 5. As explained in Yakoivicz v. McDerrrlott, 120 Pa. Commw. Ct. 479, 486, 548 A.2d 1330, 1333 (1988), alloc. denied, 523 Pa. 644, 565 A.2d 1168 (1989): "Commonwealth parties are immune to the imposition of liability for actions within the scope of their duties except as the General Assembly shall waive that immunity. 42 Pa. C.S. § 8522. Commonwealth party is defined as '[a] Commonwealth agency and any employees thereof, but only with respect to an act within the scope of his office or employment.' 42 Pa. C.S. §8501." There can be no reasonable argument that objecting defendants were not acting within the scope of their duties as 2 employees of the Pennsylvania Department of Corrections. As such, they are immune from liability unless the General Assembly has waived sovereign immunity. Therefore, as the Commonwealth has not waived its sovereign immunity for any statutory or common law, intentional torts the Department of Corrections and the seven objecting natural person defendants are absolutely immune from liability under the theories advanced in Counts Four through Eight. Frazier v. Southeastern Pennsylvania Transp. Auth., 868 F.Supp. 757 (E.D. Pa. 1994); Ray v. Pennsylvania State Police, 654 A.2d 140 (Pa. Cnunwlth. Ct. 1995), a/J'd, 544 Pa. 260, 676 A.2d 194 (1996). WHEREFORE, the state tort claims presented in Counts Four through Eight should be dismissed. II. In the Naturc of a Demorrer 6. Plaintiffs Sixth Count is that all eight objecting defendants are liable to him for malicious prosecution. Complaint, J¶ 118 & 119. 7. In order to make out a prima facie case for malicious prosecution generally requires proof that the defendant (1) instituted criminal proceedings against the plaintiff (2) without probable cause (3) with malice and (4) that the proceedings terminated in favor of the plaintiff. Kelley v. General Teamsters, Chauffeurs, and Helpers, Local Union 249, 518 Pa. 517, 520-521, 544 A.2d 940, 941 (1988). See also DeSalle v. Penn Cent. Transp. Co., 263 Pa. Superior Ct. 485, 398 A.2d 680 (1979). 8. Plaintiff does not allege that he has been subjected to arrest or any type of criminal process. 3 WHEREFORE, the state tort claim presented in Count Six for malicious prosecution should be dismissed. 111. Statute of Limitations 9. The Whistleblower Act the Act of December 12, 1986, P.L. 1559 (Pa. Stat.Ann. tit. 43, § 1421 et seq. (Purdon Supp. 1997)), requires that any person who alleges a violation of the Law must bring suit within 180 days after the occurrence of the alleged violation. 10. The November 1996, and Jute 1997, suspensions and the July 1997, termination all occurred more than 180 days before this action was filed (May 28, 1999). 11. Therefore the action challenging these decisions is untimely and as its untimeliness is evident on the face of the petition it is appropriate to raise it by preliminary objection. WHEREFORE, Count Three of the complaint must be dismissed without leave to amend as barred by the applicable Statute of Limitations. Respectfully submitted, D. MICHAEL FISHER Attorney General 15' Floor, Strawberry Square Harrisburg PA 17120 717.787.3874 (Direct Dial) 717.772.4526 (Facsimile) E-Mail: Mlipi@attorncygencral.gov Date: June 22, 1999 By: ?, raw:.: L? `?:sd FRANCIS R. FILIPI Senior Deputy Attorney General Attorney ID# 18630 SUSAN J. FORNEY Chief Deputy Attorney General 4 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS, Plaintiff V. No. 99-3238 Civil COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants CERTIFICATE OF SERVICE I, FRANCIS R. FILIPI, Senior Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on June 22, 1999, I caused to be served a true and correct copy of the foregoing document entitled Preliminary Objections Filed on Behalf of the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David Wakefield, Bemon Lane, Patrice A. Dupnock, Timothy D. Mara and Joseph Mushinski, by depositing same in the United States Mail, first-class postage prepaid to the following: Michael J. Wilson, Esq, 816 Derby Avenue Camp Hill, PA 17011.8367 FRANCIS R. FILIPI Senior Deputy Attorney General Attorney ID# 18630 Date: June 22, 1999 u.; h' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: DOE. JOHN AND OR JANE, IND & AS EXEC. MANG. SUP. ATT FOR DOC but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answers: / Docketing 6.00 Out of County 9.00 Surcharge 8.00 ma ine e i Dep. Northumberla 77.72 $TU-U=. 06%30/1999 WILSON Sworn and subscribed o before me this 3y - vl? day of 199 9 A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J vs. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline Sheriff who b i , , e ng duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: GILLIS FRANK D IND & AS SUPERINTENDANT OF SCI COAL TWP but was unable to locate _ Him in his bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answe Docketing 6.00 Out of County .00 Surcharge 8.00 om s??y`?; -S e i $TT?U 0630/1999 WILSON Sworn and subscribed to before me this Jot: day ofL ?,,,,? 199_ A.D. ?- -- SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline Sheriff, who being duly to law sa s th t h - sworn according I , a e made a diligent search and inquiry for the within named defendant, to wit: WAKEFIELD DAVID J IND & AS DEP SUPER. SCI COAL TOWNSHIP DOC but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answers. Docketing 6.00 7 Out of County 00 Surcharge 8.00 R-T omas in S eri $14-00 MICHA L J. WILSON 06/301999 Sworn and subscribed to before me this 33)S_ day of 19 99 A.D. ?a g4- ro onocary/ SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1.999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: LANE BERNON, IND & AS DEP. SUPER. SCI COAL TOWNSHIP but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 , this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answers: Docketing 6.00 Out of County .00 Surcharge 8.00 R- oma ine, S erl `f $.L4.UU MI?HA$L J. WILSON 06 30//1999 Sworn and subscribed to before me this 30 '?- day of 19 99 A.D. OL riOriO t a Y??-? SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: DUPNOCK PATRICE A IND & AS PERS. DIR. AND EEOC OFFICER but was unable to locate Her in hi s bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answer - Docketing 6.00 Out of County .00 ????`--s Surcharge 8.00 It. mas7KT-1 e i U 0MICHA?L J. 6/301999 WILSON Sworn and subscribed to before me this eo ?. day of 199 A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: MUSHINSKI JOSEPH IND & AS FMR MAJ. OF SCI COAL TWP CORR OFFI but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of NORTHUMBERLAND County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was in receipt of the attached return from NORTHUMBERLAND County, Pennsylvania. Sheriff's Costs: So answers: Docketing 6.00 e Out of County .00 Surcharge 8.00 R-7-1 as eriif- MIG L J. WILSON 06/30/1999 Sworn and subscribed to before me this 30 U? day of 19171 A.D. SHERIFF'S RETURN OUT OF COUNTY CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF R. Thomas Kline Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: ATTORNEY GENERAL OFFICE OF COMMONWEALTH OF PA but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania. to serve the within NOTICE AND COMPLAINT On June 30th, 1999 this office was i i n rece pt of the attached return from DAUPHIN County, Pennsylvania. Sheriff's Costs: So answers: Docketing 6.00 Out of County Surcharge 9.00 8 00 Dep. Dauphin Co. . 25.50 c as 01=4 i U MIGH J. WILSON 06/02/1999 Sworn and subscribed to before me this Jo u day of ---- 1990 A. D. Q.= n. 444 QLar-y' SHERIFF'S RETURN - REGULAR CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF HAROLD WEARY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE & COMPLAINT was served upon COMMONWEALTH OF PA DEPT OF CORRECTIONS the defendant, at 10:40 HOURS, on the 2nd day of June 1999 at 50 UTLEY DRIVE CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to TRACEY MCCULLOUGH (SUPERVISOR) a true and attested copy of the NOTICE & COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 1?,?',, Service 7.44'???""??? Affidavit .00 Surcharge 8.00 R-I omas i SIIeYiff $33.44 0ICHAEL J. WILSON by gXjJ i G Cs? Si L.y Sworn and subscribe to before me this, JD-' day o ru. 19-"9 A.D. SHERIFF'S RETURN - REGULAR CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF HAROLD WEARY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon MARTIN F. HORN IND & AS SECRET FORMER COMM OF DOC the defendant, at 10:40 HOURS, on the 2nd day of June 1999 at 57 UTLEY DRIVE CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to TRACEY MCCULLOUGH (SUPERVISOR) a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service .00 Affidavit .00 zooeaelw? 1_2 Surcharge 8.00 R?-TIo as n eri 0 MI?HAFL J. WILSON 06 30//1999 by e S Sworn and subscribed to before me this j0 t- day of ;.? 1.9? A.D. \ ry SHERIFF'S RETURN - REGULAR CASE NO: 1999-03238 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS DOUGLAS J VS. PENNSYLVANIA COMMONWEALTH OF HAROLD WEARY Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT was served upon MARA TIMOTHY D IND & AS ASSIST COUNSEL FOR DOC the defendant, at 10:40 HOURS, on the 2nd day of June 1999 at 55 UTLEY DRIVE CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to TRACEY MCCULLOUGH (SUPERVISOR) a true and attested copy of the NOTICE AND COMPLAINT and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answersDocketing 6.00 Service .00 ,LL Affidavit .00 Surcharge 8.00 om s Kline, eri $i4.70-MIL J. WILSON 06 30/1999 by LCr o, e y e i Sworn and subscribed to before me this 36 12?- day of 19 Q A.D. r? I goffice of r'S4Pxiff Mary Jane Snyder Rcal Hslule Deputy William T. Tully Solicitor Dauphin County Harrisburg. Pcnnsylcnnia 17101 ph; (717)255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Ralph G. McAllister Chicf Ixputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania ROGERS DOUGLAS County of Dauphin • OFFICE OF THE ATTORNEY GENERAL Sheriff's Return No. 1093-T - - -1999 OTHER COUNTY NO. 99-3238 AND NOW: June 4, 1999 at 8:25AM served the within COMPLAINT upon OFFICE OF THE ATTORNEY GENERAL by personally handing to BARBRA HOFFMAN, ADMIN OFFICER 1 true attested copy(ies) of the original COMPLAINT and making known to him/her the contents thereof at 16TH FLOOR STRAWBERRY SQUARE HARRISBURG, PA 17101-0000 Sworn and subscribed to before me this 7TH day of JUNE, 1999 j PROTHONOTARY So Answers, Sheriff of Da ,?phin aunty, Pa. By iff's Costs: S25. WY1 06/02/1999 RCPT Ta 1,24551 JT PLAINTIFF: ROGERS, DOUGLAS J. CASE #: 99 NO 3238 P: VS: COUNTY FILED: CUMBERLAND FILED DATE: 99/05/28 DEFENDANT: COMMONWEALTH OF PENNSYLVANIA ET AL DATE RECEIVED: 99/06/09 D: DOE, JOHN/JANE OFFICERS OF DOC ASSIGNED TO: 6 DEF. D: GILLIS, FRANK D. LAW FIRM: CUMBERLAND D: SCI, 1 KELLY DRIVE, COAL TOWNSHIP PA 17872 EXPIRES: 99/06/28 D: SHERIFF'S RETURN I HEREBY CERTIFY AND RETURN I SERVED: JOHN/JANE DOE, OFFICERS OF DOC BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE AND COMPLAINT PERSON SERVED: ROBERT PROCOPIO ------------------------------------------------------------ DATE SERVED: 99/06/15 CAPACITY: ADULT IN CHARGE /CORRECTIONAL OFF ----------••------- ----------------------------------- TIME: 12:00 PM PLACE SERVED SCI COAL TWP, COAL TWP, PA ------------------- ------------------------------------------------------------- COUNTYS(frT6ard, R"' 'STATE OF PENNA., MAKING KNOWN UNTO: HIM THE CONTENP?R y of , A. D. 19 OU, S, ?e?Aa.du SO ANSWERS: CHARLES S. BERKOSKI, SHERIFF " BY DEPUTY: PIDCOE DWAYNE PROTHONOTARY BY. ..-----W-Conuu..Exp-1stldamJan- 2002 ---------------------------------------------- SHERIFF'S RETURN ---------------------------------------------------------------------------- I HEREBY CERTIFY AND RETURN THAT I SERVED: FRANK D. GILLIS, INDIVIDUALLY & AS SUPERINTENDENT BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE AND COMPLAINT PERSON SERVED: ROBERT PROCOPIO -------------------------------------------------------------- DATE SERVED: 99/06/15 CAPACITY: ADULT IN CHARGE/CORRECTIONAL OFF ----------------- -------------------------------------- TIME SERVED: 12:00 PM ----------------- PLACE SERVED: SCI COAL TWP, COAL TWP PA -------------------------------------------------------------- COUNTY OF NORTHUMBERLAND AND CONTENTS THEREOF. Sworn to and subscriU d 6erorK nto this 8 day of D. 19 Jlk ?rr PIi07"tiUP;02i1Ry DOLxKtl }¢i 14", CM. 0= A STATE OF PENNA., MAKING KNOWN UNTO: HIM THE SO ANSWERS: CHARLES S BERKOSKI, SHERIFF BY DEPUTY: PIDCOE, DWAYNE BY: S. 777 SHERIFF"S OSTS. $ 77.72 RECEIPT # 15313 NO. OF ATTEMPTS: 6 PLAINTIFF: ROGERS, DOUGLAS J. CASE #: 99 NO 3238 Pc COUNTY FILED: CUMBERLAND VS: FILED DATE: 99/05/28 DEFENDANT: COMMONWEALTH OF PENNSYLVANIA ET AL DATE RECEIVED: 99/06/09 D: WAKEFIELD, DAVID J., INDIVIDUALLY & AS DEPUTY ASSIGNED TO: 6 DEF. D: SUPERINTENDENT LAW FIRM: CUMBERLAND D: LANE, BERNON, INDIVIDUALLY & AS DEPUTY SUPERIN. EXPIRES: 99/06/28 D: SCI, 1 KELLY DRIVE, COAL TOWNSHIP, PA 17872 SHERIFF'S RETURN I HEREBY CERTIFY AND RETURN I SERVED: DAVID J. WAKEFIELD, INDIVIDUALLY & AS DEPUTY SUPERINTENDENT BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE AND COMPLAINT PERSON SERVED: ROBERT PROCOPIO --------------------------------------- DATE SERVED: 99/06/15 CAPACITY: ADULT IN CHARGE/CRRECTIONAL OFF ------------------ TIME: 12:00 PM ------------------- PLACE SERVED SCI COAL TWP, COAL TWP, PA ------------------------------------------------------------- Sworn to ????`` COUNT??aEK??rtTATE OF PENNA.', KNOWN UNTO: HIM THE CONTE 99 S,Qu SO ANSWERS: CHARLES S. BERKOSKI, SHERIFF PROTHONOTAP.Y BY DEPUTY: PIDCOE, DWAYNE BY: ------3idyComm. Ex?_asSMntt-I ct 20aZ ----------------------------------------------- SHERIFF'S RETURN ---------------------------------------------------------------------------- I HEREBY CERTIFY AND RETURN THAT I SERVED: BERNON LANE, INDIVIDUALLY & AS DEPUTY SUPERINTENDENT BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE AND COMPLAINT PERSON SERVED: ROBERT PROCOPIO -------------------------------------------------------------- DATE SERVED: 99/06/3.5 CAPACITY: ADULT IN CHARGE /CORRECTIONAL OFF ---- ------------ -------------------------------------- TIME SERVED: 12:00 PM ----------------- PLACE SERVED: SCI COAL TWP, COAL TWP, PA -------------------------------------------------------------- COUNTY OF NORTHUMBERLAND AND STATE OF PENNA., MAKING KNOWN UNTO: HIM THE CONTENTS THEREOF. sa"A to and svhKcri d Defoe SO ANSWERS: CHARLES S BERKOSKI, SHERIFF tt? thlsqq day o BY DEPUTY: PIDCOE, DWAYNE A. D. 18 / BY: ?n i SeaQu SHERIFF"S COSTS: PROTHOr:GTARY RECEIPT # : 15315 My Comm. Exp. 1st Mon, Jan. 2002 NO. OF ATTEMPTS: DOCKET PAGE #: 99 CV 0312 B PLAINTIFF: ROGERS, DOUGLAS J. CASE #: 99 NO 3238 P' COUNTY FILED: CUMBERLAND ??S' FILED DATE: 99/05/28 DEFENDANT: COMMONWEALTH OF PENNSYLVANIA ET AL DATE RECEIVED: 99/06/09 D: DUPNOCK, PATRICE, INDIVIDUALLY & AS PERSONNEL ASSIGNED TO: 6 DEF. D: DIRECTOR & EEOC OFFICER LAW FIRM: CUMBERLAND D: MUSHINSKI, JOSEPH INDIVIDUALLY & AS FORMER MAJOR EXPIRES: 99/06/28 D: 1 KELLY DRIVE SCI-COAL TOWNSHIP SHERIFF'S RETURN I HEREBY CERTIFY AND RETURN I SERVED: PATRICE DUPNOCK, INDIVIDUALLY & AS PERSONEL DIRECTOR & EEOC OFFICER BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE & COMPLAINT PERSON SERVED: ROBERT PROCOPIO --------------------------------- DATE SERVED: 99/06/15 CAPACITY: ADULT IN CHARGE/CORRECTIONAL OFF ------------------ TIME: 12:00 PM ------------------- PLACE SERVED: SCI COAL TWP, COAL TWP, PA --------•----------------------------------- ------------------ Sworn to and suEbs r• CO T Yo?r?TATE OF PENNA., MAKING KNOWN UNTO: HIM THE CONTE NTENDS 13T S. &A - '."`.. ilJlfS / SO ANSWERS: CHARLES S. BERKOSKI, SHERIFF PROTHOArOTARY BY DEPUTY: PIDCOE, DWAYNE 4?YComm_ExP' 1st A?en. L*, u BY. ------------------=-'`0 2--------------------- -------------------------- SHERIFF'S RETURN ---------------------------------------------------------------------------- I HEREBY CERTIFY AND RETURN THAT I SERVED: JOSEPH MUSHINSKI, INDIVIDUALLY & AS FORMER MAJOR OF THE SCI C.TWP. BY HANDING A TRUE AND ATTESTED COPY OF THE WITHIN: NOTICE & COMPLAINT PERSON SERVED: ROBERT PROCOPIO -------------------------------------------------------------- DATE SERVED: 99/06/15 CAPACITY: ADULT IN CHARGE/CORRECTIONAL OFF ----------------- -------------------------------------- TIME SERVED: 12:00 PM ----------------- PLACE SERVED: SCI COAL TWP, COAL TWP, PA -------------------------------------------------------------- COUNTY OF NORTHUMBERLAND AND STATE CONTENJ?om EREOF. Eo anlLsubscrib d before SO me this ay of,.- n BY A. D. 19 BY: . ............ ........ ............. ...... ` PROTIi O'1::RY J7} Comm. Exp. 7st I'10n. J n. 2002 DOCKET PAGE #: 99 CV 0312 C OF PENNA., MAKING KNOWN UNTO: HIM THE ANSWERS: CHARLES S BERKOSKI, SHERIFF DEPUTY: PID,CO amos" DWAYNEg-4 ^ A S. " SHERIFF"S COSTS: RECEIPT # : 15313 NO. OF ATTEMPTS: Douglas J. Rodgers VS. Commonwealth of Pa, Dept. Of Corrections, et, al. Serve: Joseph Mushinski No.-2-9-3238 Civil. 19 Now, f SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize tine Sheriff of Northumberland count), to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pa. Affidavit of Service Now, by handing to attested copy of the original the contents thereof. Sworn and subscribed before me this day of I9 19 , at o'clock M, served the a true and and made known to So answers, Sheriff of COSTS SERVICE _ 5 NIILEAGE AFFIDAVIT S In The Court of Common Fleas of Cumberiand-County, Pennsylvania Douglas J. Rodgers vs. Commonwealth of Pa, Dept. of Corrections, et. al. Serve: John/Jane Doe, Officers of DOC No. 99-3238 Civil 19 Now, 6/8/99 19_, f SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pa. Affidavit of Service Now, upon at by handing to attested copy of the original the contents thereof. Sworn and subscribed before me this day of I9 19 , at o'clock M, served the So answers, a true and and.made known to :n Sheriff of COSTS SERVICE S MILEAGE. AFFIDAVIT County, Pa. S Douglas J. Rodgers v5. Commonwealth of Pa, Dept. of Corrections, et, al. Serve, Frank D. Gillis No. 99-3238 Civil 19 _ Now, _6!8 / 99 191 SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. T Sheriff of Cumberland County, Pa. Affidavit of Service Now, by handing to attested copy of the original the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before SERVICE 5 me this day of 19_ MILEAGE AFFIDAVIT I9 , o'clock M, served the a true and and made known to County, Pa. S •• •.• ••? •?. ... ... ...? •rrJ aaa ?. uYU G\ .wu1Ya ?. \. YY 4[ .•wii:f.? .. +• ?IUao , • i1 LC ILI Douglas J. Rodgers VS. Commonwealth of Pa, Dept. of Corrections, et. al. Serve: David J. Wakefield No. 99-3238 Civil 19 Now, 6/Q/99 191 SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff: Sheriff of Cumberland County, Pa. Affidavit of Service Now, at by handing to attested copy of the original the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before me this day of SERVICE_ S 19 MILEAGE AFFIDAVIT 19 , at o'clock M, served the a true and and made known to County, Pa. S Douglas J. Rodgers VS. Commonwealth of Pa, Dept, of Corrections, et. al. Serve: Bernon Lane No. 99-3238 Civil 19 Now, 6/8/99 19_1 f S14F,RIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ? ??10 Sheriff of Cumberland County, Pa. Affidavit of Service Now, upon at by handing to attested copy of the original the contents thereof. a true and and made known to So answers, Sheriff of County, Pa: COSTS Sworn and subscribed before SERVICE 5 me this dayof_, 19? MILEAGE AFFIDAVIT 19 , at o'clock M, served the S ., ._.. ... .?.. .?. ... ..... ... ... ., ...w.... .... ..ueeu u...,. .uuu _??uee.-P. ..u l.n.e• 4lL[k .«. Douglas J. Rodgers vs. Commonwealth ofAPa, Dept. of Corrections, et. al. Serve: PatricehDupnock No. 99=3238 Civil 19 Now, 6/8/99 191 SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize tine Sheriff of Northumberland County to execute this Writ, this deputation being made at the request and risk of the Plaintiff: Sheriff of Cumberland County, Pa. Affidavit of Service Now, at 19__, at o'clock M, served the by handing to attested copy of the original the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before me this _„_ day of _ SERVICE S 19 MILEAGE AFFIDAVIT a true and and made known to County, Pa. '? In The Court of Common Pleas of Cumberland County, Pennsylvania Douglas J. Rogers vs. Commonwealth of PA, et. al. Serve: Office of the Attorney General, Commonwealth of PA No. 99-3238 Civil 19 Now, 6/l/99 19-,1 SHERIFF OF CUMBERLAND COUNTY, PA do hereby deputize the Sheriff of na„nh i n County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, Pa. Affidavit of Service Now, at 19 , at o'clock served the by handing to attested copy of the original the contents thereof. So answers, Sheriff of COSTS Sworn and subscribed before me this _ day of_ SERVICE S 19 MILEAGE AFFIDAVIT County, Pa. a true and and made known to S Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS Plaintiff V. Civil - Law COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) No. 99-3238 et.al Defendants CERTIFICATE OF SERVICE The undersigned counsel, hereby certifies that on the date(s) set forth below, the listed paper(s) or document(s) and this Certificate were served upon the individuals and addresses noted by placing an original or duplicate photostatic copies of the originals in the regular and/or certified United State mail, first class postage pre-paid. PAPER(S) OR DOCUMENT(S) SERVED 1. Brief in Opposition to Preliminary Objections of Defendants NAMES AND ADDRESSES OF INDIVIDUALS SERVED Attorney Francis R. Filipi Senior Deputy Attorney General Office of Attorney General Litigation Section 15' Floor, Strawberry Square Harrisburg PA 17120 Dated: October 8, 1999 By: Michael J. Wilson, Attorney for Plaintiff -I- Ir F{ `) ?? J ar ??7j ` AI t r,. ., L Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS Plaintiff V. Civil - Law COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) No. 99-3238 et.al Defendants CERTIFICATE OF SERVICE The undersigned counsel, hereby certifies that on the date(s) set forth below, the listed paper(s) or document(s) and this Certificate were served upon the individuals and addresses noted by placing an original or duplicate photostatic copies of the originals in the regular and/or certified United State mail, first class postage pre-paid. PAPER(S) OR DOCUMENT(S) SERVED 1. Praecipe to List for Argument Preliminary Objections of Defendants; and 2. Certificate of Service dated July 9, 1999 NAMES AND ADDRESSES OF INDIVIDUALS SERVED Attorney Francis R. Filipi Senior Deputy Attorney General Office of Attorney General Litigation Section IS' Floor, Strawberry Square Harrisburg PA 17120 Dated: July 9, 1999 By: Michael J. Wilson, Attorney for Plaintiff "7 Q G O' Ski 1 i1 Cs.u` j L ?:.1(Y ON j U Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS Plaintiff V. Civil - Law COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) No. 99-3238 et.al Defendants The undersigned counsel, hereby certifies that on the datc(s) set forth below, the listed paper(s) or document(s) and this Certificate were served upon the individuals and addresses noted by placing an original or duplicate photostatic copies of the originals in the regular and/or certified United State mail, first class postage pre- paid. PAPER(S) OR DOCUMENT(S) SERVED 1. Plaintiffs First Sets of Interrogatories and Requests for Production of Documents Propounded Upon Defendant; and 2. Certificate of Service dated December 27, 1999 NAMES AND ADDRESSES OF INDIVIDUALS SERVED Attorney Francis R. Filipi Senior Deputy Attorney General Office of Attorney General Litigation Section 15th Floor, Strawberry Square Harrisburg PA 17120 Dated: December 27, 1999 By:"? VGf/l?_ Michael J. Wilson, Attorney for Plaintiff U i - (21 "-? - C' Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J. ROGERS Plaintiff , V. Civil - Law COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) No. 99-3238 et.al Defendants CERTIFICATE OF SERVICE The undersigned counsel, hereby certifies that on the date(s) set forth below, the listed paper(s) or document(s) and this Certificate were served upon the individuals and addresses noted by placing an original or duplicate photostatic copies of the originals in the regular and/or certified United State mail, first class postage pre- paid. PAPER(S) OR DOCUMENT(S) SERVED I Plaintiffs Second Sets of Interrogatories and Requests for Production of Documents Propounded Upon Defendant; and 2. Certificate of Service dated February 22, 2000. NAMES AND ADDRESSES OF INDIVIDUALS SERVED Attorney Francis R. Filipi Senior Deputy Attorney General Office of Attorney General Litigation Section IS" Floor, Strawberry Square Harrisburg PA 17120 Dated: February 22, 2000 By: A t Q_" Michael J. Wilson, Artomey for Plaintiff ??= , .. , !_ _ _._ ,:, ? ???_ ? f. .. _ ::I ?._. f.r..: 4_ Michael J. Wilson 816 Derby Avenue Camp Hill PA 17011-8367 Attorney for Plaintiff PA ID No.: 52680 (717) 774-7018 (717) 774-7019 (facsimile) email: wilsonmesq@aol.com IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS 1419 Timberline Drive Pottstown PA 19465 Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS (DOC) 2520 Lisburn Road Camp Hill PA 17001 MARTIN F. HORN, individually and as Secretary, formerly Commissioner, of DOC 2520 Lisburn Road Camp Hill PA 17001 FRANK D. GILLIS, individually and as Superintendent, SCI-Coal Township, DOC 1 Kelly Drive Coal Township PA 177872 DAVID J. WAKEFIELD, individually and as Deputy Superintendent, SCI-Coal Township, DOC 1 Kelly Drive Coal Township PA 17872 BERNON LANE, individually and as Deputy Superintendent, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 No. 99-3238 CIVIL - LAW PATRICE A. DUPNOCK, individually and as Personnel Director and EEOC officer, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 TIMOTHY D. MARA, individually and as Assistant Counsel for DOC 2520 Lisburn Road Camp Hill PA 17001 JOSEPH MUSHINSKI, individually and as former Major of the SCI-Coal Township Corrections Officers, SCI-Coal Township 1 Kelly Drive Coal Township PA 17872 -and- JOHN AND JANE DOES, individually and as executives, managers, supervisors, officers, or attorneys of DOC 2520 Lisburn Road Camp Hill PA 17001 Defendants AMENDED COMPLAINT Plaintiff incorporates paragraphs 1 through 122 of the Complaint as if they were fully set forth herein. Plaintiff amends the following paragraph as follows: COUNT EIGHT - NTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Rogers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania, Department of Corrections and all individually named Defendants 123. Plaintiff believes, and therefor avers, the acts and/or omissions set forth above constitutes intentional infliction of emotional djstress at common law. -2- V. DEMAND FOR RELIEF WHEREFORE, Plaintiff prays the Court enter judgment against Defendants and in his favor on any claims and causes of action brought against such Defendants, as enumerated in Count Eight, in an amount in excess of the jurisdictional amount requiring arbitration referral by local rule. Plaintiff respectfully requests specific relief in the form of attorneys fees, costs of litigation relating to the matters set forth herein, back pay, front pay, and allowable compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and any and all other non-pecuniary losses incurred by Plaintiff, as permitted by law, resulting from the improper and/or unlawful acts or omissions set forth herein. Plaintiff respectfully further requests relief in the form of punitive damages, as permitted by law. Plaintiff does not seek punitive damages on counts pertaining to the Pennsylvania Human Relations Act (Counts One and Two herein), since such damages have been specifically held to be not recoverable under such Act. VI. DEMAND FOR JURY TRIAL Plaintiff respectfully demands a trial by jury on all matters raised herein to such extent a jury trial is permitted by law on any particular claim or cause of action. Respectfully submitted, Michael J. Wilson Attorney for Plaintiff -3- Cl LIJ C) P C. Cl• • CO 7 .G . fa ? `•'''- T 5 ru i) a.. --j Cj O-N 0 DOUGLAS J. ROGERS, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA V. COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT CORRECTIONS (DOC), MARTIN F. HORN, individually and as Secretary of DOC, FRANK D. GILLIS, individually and as Superintendent, SCI-Coal Township, DOC, DAVID J. WAKEFIELD, individually and as Deputy Superintendent, SCI-Coal Township, BERNON LANE, individually and as Deputy Superintendent, SCI-Coal NO, 99-3238 CIVIL Township, PATRICE A. DUPNOCK, individually and as Personnel Director and EEOC officer, SCI-Coal Township, TIMOTHY D. MARA, individually and as Assistant Counsel for DOC, JOSEPH MUSHINSKI, individually and as former Major of the SCI- Coal Township Corrections Officers, and JOHN AND JANE DOES, individually and as executives, managers, supervisors, officers or attorneys of DOC, Defendants CIVIL ACTION `. , IN RE DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, P.J., HESS, AND GUIDO, JJ. ORDER OF COURT AND NOW, ? l 2000, after consideration of the briefs submitted by both parties, the facts of record, and the applicable law, Defendants' Preliminary Objection raising the defense of sovereign immunity is denied. Defendants' Preliminary Objection regarding the demurrer to the claim of malicious prosecution is granted. Defendants' Preliminary Objection pertaining to the statute of limitations for plaintiffs Whistleblower claims is granted to the extent that the activities giving rise to plaintiffs claims occurred more than 180 days prior to the filing of plaintiffs complaint. Further, counts four, five, seven, and eight (statutory wrongful use of civil proceedings, common law wrongful use of civil proceedings, abuse of process, and intentional infliction of emotional distress) are dismissed as they pertain to the Defendant Department of Corrections. Michael J. Wilson, Esq. 816 Derby Avenue Camp Hill, PA 17011-8367 Attorney for Plaintiff Office of the Attorney General 15"' Floor, Strawberry Square Harrisburg, PA 17120 Attorney for Defendants Jam" ?a a?a?? DOUGLAS J. ROGERS, Plaintiff V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT CORRECTIONS (DOC), MARTIN F. HORN, individually and as Secretary of DOC, FRANK D. GILLIS, individually and as Superintendent, SCI-Coal Township, DOC, DAVID J. WAKEFIELD, individually and as Deputy Superintendent, SCI-Coal Township, BERNON LANE, individually and as Deputy Superintendent, SCI-Coal Township, PATRICE A. DUPNOCK, individually and as Personnel Director and EEOC officer, SCI-Coal Township, TIMOTHY D. MARA, individually and as Assistant Counsel for DOC, JOSEPH MUSHINSKI, individually and as former Major of the SCI- Coal Township Corrections Officers, and JOHN AND JANE DOES, individually and as executives, managers, supervisors, officers or attorneys of DOC, Defendants JN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-3238 CIVIL CIVIL ACTION IN RE DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE_HOFFER, P.J., HESS, AND GUIDO. JJ. OPINION HOFFER, P.J.: This opinion addresses the preliminary objections filed by the Attorney General's Office on behalf of the seven defendants named in this suit. Defendants raise the following issues: the preliminary objection of sovereign immunity'; a demurrer based on the grounds that the plaintiff does not sufficiently state a claim for malicious prosecution; and the defense that the statute of limitations has run for certain of the plaintiffs Whistleblower Act claims. Plaintiff Douglas Rogers is an African American who worked for the State Correctional Institution at Coal Township (hereinafter SCI-Coal Township). (Plaintiffs Complaint, para. 1) Rogers filed a race discrimination complaint on August 30, 1996, against the Major of Corrections Officers, a Mr. Mushinski (a defendant herein). (Plaintiffs Complaint, para. 13). As a result, Mushinkki was suspended for 20 days and was demoted to the rank of Captain. (Plaintiffs Complaint, para. 14). Rogers asserts that as a result of Mushinski's suspension and demotion, certain members of the work force at SCI-Coal Township demonstrated hostility ' Defendants have titled this preliminary objection 'lack of jurisdiction; although it is a claim of the defense of sovereign immunity. 2 to Rogers. (Plaintiffs Complaint, para. 16) Rogers claims that Mushinski's wife, also an officer at SCI-Coal Township, circulated a petition among the staff protesting her husband's discipline, and that certain officers collected money to benefit Mushinski. (Plaintiffs Complaint, para. 17). The following two incidents are alleged by Rogers in his complaint: In November 1996, Hughes, an employee of SCI-Coal Township, approached Rogers and accused him of jumping ahead in the use of the copy machine. (Plaintiffs Complaint, para. 18). Hughes taunted Rogers, attempted to provoke him, swore at him and threatened to strike him. (Plaintiffs Complaint, para. 19). Hughes also threatened to meet Rogers after work hours at a school where Rogers attended evening classes. (Plaintiffs Complaint, para. 20). Although the evening passed without incident, Hughes harassed Rogers again in the staff dining room the next day. (Plaintiffs Complaint, para. 22). Rogers asked Hughes to accompany him to the office of Deputy Superintendent David Wakefield (a defendant herein). (Plaintiffs Complaint, para. 25). Hughes continued to harass Rogers on the way to Wakefield's office. (Plaintiffs Complaint, para. 27). Once inside Wakefield's office, Rogers stated that if Hughes continued to threaten and stalk him, Rogers would kill him in self- defense. (Plaintiffs Complaint, para. 29). Both Rogers and Hughes were ordered to return to their workstations. (Plaintiffs Complaint, paras. 30, 37). As a result of this incident, Rogers received a ten-day suspension on the basis that Rogers had violated Section 10 of the DOC Code of Conduct which requires 3 employees to treat each other with respect and courtesy. (Plaintiffs Complaint, para. 40). The other incident occurred on June 23, 1997, when Rogers and another employee were returning to their workstations from eating. (Plaintiffs Complaint, para. 44). Rogers had asked the employee whether he would like to come over to the E housing unit, where Rogers was working. (Plaintiffs Complaint, para. 45). Officer Mark Henning was walking ahead of Rogers when he turned around and told Rogers that he would not want to work in Unit E. (Plaintiffs Complaint, para. 46). When both men returned to their workstations, Rogers called Henning in Unit A and asked him if he had a problem. (Plaintiffs Complaint, paras. 48-50). Henning replied with vulgar language. (Plaintiffs Complaint, para. 51). Rogers then went to Unit A in an attempt to contact Henning's supervisor, Collins. (Plaintiffs Complaint, para. 55). Upon entering Unit A, Rogers saw Henning and the two men exchanged words for about one minute before Collins asked Rogers to leave Unit A. (Plaintiffs Complaint, paras. 58-61). As a result of the incident, Rogers was suspended for thirty days without pay. (Plaintiffs Complaint, para. 69). Rogers participated in a pre-disciplinary conference with defendants Wakefield, Lane and Dupnock (defendants herein), who then recommended to Superintendent Gillis that Rogers be terminated from his employment. (Plaintiffs Complaint, paras. 75-76). Rogers was then terminated from employment by 4 unknown employees of the Central Office of the Department of Corrections, a defendant herein. (Plaintiffs Complaint, para. 78). Rogers applied for unemployment compensation (UC) benefits. (Plaintiffs Complaint, para. 83). Rogers contends that DOC, through Defendant Mara, an attorney at DOC, unreasonably and without probable cause contested Rogers's application for UC benefits. (Plaintiffs Complaint, para. 84). At the UC hearing, Rogers alleges that Defendant Mara withheld relevant exculpatory documents containing information against the interests of DOC, instructed witnesses such as Henning that he did not have to attend the UC hearing since he was not scheduled to work for that day, and falsified or fabricated charges against Rogers. (Plaintiffs Complaint, para. 87). The result of the hearing was that Rogers was awarded UC benefits on the basis that DOC failed to meet its burden of proof that he had committed wilful misconduct. (Plaintiffs Complaint, paras. 88-89). Rogers then appealed his suspension and termination to the State Civil Service Commission (SCSC) of the Commonwealth of Pennsylvania. (Plaintiffs. Complaint, para. 81). At the SCSC hearings, Rogers alleges that defendant Mara deliberately and intentionally withheld relevant documents and tape recordings that could have been exculpatory to Rogers and advanced false allegations of violations of the Code of Ethics when Mara should have known that these violations did not occur. (Plaintiffs Complaint, para. 98). On February 9, 1999, the SCSC issued a Decision in favor of Rogers on all issues and restored 5 him to his former position of Corrections Counselor at SCI-Coal Township. (Plaintiffs Complaint, para. 99). During March, 1999, by agreement between Rogers and DOC, Rogers reported to SCI-Chester in Delaware County and has since assumed a position as a Corrections Counselor 2. (Plaintiffs Complaint, para. 100). in early April, 1999, Rogers alleges that he was ordered by defendants John or Jane Does of the Central Office of DOC to attend the Basic Training Academy of DOC for training for new employees. (Plaintiffs Complaint, para. 101). Rogers alleges that this order was unlawful and improper in that it was further retaliation and harassment of Rogers for having successfully prevailed against DOC, and that it was part of a plan to create a hostile work environment for Rogers. (Plaintiffs Complaint, para. 103). In support of this allegation, Rogers further alleges that on his first day of reporting to the Academy, Rogers was told by DOC employees working at the Academy that he had trainee status, and would therefore be subjected to treatment such as oral harassment, mistreatment, and abuse of trainees. (Plaintiffs Complaint, para. 103). When Rogers informed the Academy staff that he was not a trainee and had been and was a Corrections Counselor, he was nevertheless issued within the first four hours of his first day a verbal reprimand in writing for displaying unprofessional conduct for informing the employees of his status. (Plaintiffs Complaint, para. 103). Rogers has filed a complaint alleging that the defendants are liable to him on the following eight counts: (1) violations of the Pennsylvania Human 6 Relations Act (PHRA); (2) aiding and abetting violations of the PHRA; (3) violations of the Whistleblower Law, 43 P.S. §§ 1421-1428; (4) violations of the Dragonetti Act, or statutory wrongful use of civil proceedings, 42 P.S. §§ 8351- 8355; (5) wrongful use of civil proceedings under the common law; (6) malicious prosecution; (7) abuse of process; and (8) intentional infliction of emotional distress. (Plaintiffs Complaint, paras. 108-123). DISCUSSION Defendants have raised the following preliminary objections to plaintiffs complaint: (1) sovereign immunity; (2) a demurrer to the claim of malicious prosecution; and (3) the defense that the statute of limitations for some of plaintiffs Whistleblower claims has run. In ruling on preliminary objections, this court must accept as true all well- pleaded material allegations in the complaint, as well as all inferences reasonably deduced therefrom. Gordon v. Lancaster Osteopathic Hospital Assoclation, Inc., 340 Pa.Super. 253, 260, 488 A.2d 1364, 1368 (1885). Defendants' first objection is that the defendants are all state employees or governmental entities and are thus protected by sovereign immunity for counts four through eight2. Plaintiff has replied that defendants may not raise the defense of sovereign immunity as a preliminary objection. (Brief in Opposition to Preliminary Objections of Defendants, at 6). We agree. Rule 1030(x) of the 2 Counts four through eight are: (4) violations of the Dragonetti Act, or statutory wrongful use of civil proceedings; (5) a common law claim of wrongful use of civil proceedings; (6) malicious prosecution; (7) abuse of process, and (6) Intentional infliction of emotional distress. Plaintiffs Complaint at 25-27. 7 Pennsylvania Rules of Civil Procedure states that, "except as provided by subdivision (b), all affirmative defenses including, but not limited to the defenses of .... Immunity from suit, ...[and) statute of limitations... shall be pleaded in a responsive pleading under the heading 'New Matter'." Pa.R.C.P. 1030(a) (emphasis added).3 In addition, plaintiff has properly objected to the procedural defect. See Com. v. Desiderio, 698 A.2d 134 (Pa. Commw. 1997). Defendants may not properly raise the affirmative defense of sovereign immunity at this time. We note, however, that governmental immunity is an absolute defense and is not waivabie. See Tulewicz v. Southeastern Pennsylvania Transp. Authority, 606 A.2d 427, 429, 529 Pa. 588, 592 (1992). It remains that the proper method of raising the defense of immunity is pursuant to Rule 1030. Defendants' second objection is in the form of a demurrer to the allegation of malicious prosecution. Plaintiff has agreed to dismiss the claim of malicious prosecution because none of the defendants instituted criminal proceedings against him. Brief of Plaintiff In Opposition to Preliminary Objections of Defendants, at iii. Therefore, the claim of malicious prosecution is dismissed. 3 Further, Rule 1028 provides that preliminary objections are limited to the following grounds: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter, insufficient specificity In a pleading; legal Insufficiency of a pleading (demurer); lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; and pendency of a prior action or agreement for alternative dispute resolution. Pa.R.C.P.1028. 8 Defendants' third objection is that some of the occurrences giving rise to plaintiffs Whistleblower claim happened more than 180 days before plaintiff filed his complaint, thereby falling outside the statute of limitations for that claim. Plaintiff has stipulated that he agrees to the dismissal of the Whistleblower allegations that pertain to an event occurring more than 180 days prior to the filing of the complaint. Brief of Plaintiff In Opposition to Preliminary Objections of Defendants, at iii. Therefore, the Whistleblower claims arising from incidents occurring more than 180 days prior to the tiling of this claim are dismissed. Plaintiff has also stipulated to the dismissal of the Defendant agency, Department of Corrections, from the causes of action in Counts Four, Five, Seven, and Eight, since such allegations pertain to intentional tortious conduct of the individual Defendants, which would not be sufficient grounds to assess liability against the agency employer. Brief of Plaintiff in Opposition to Preliminary Objections of Defendants, at iii. Therefore, the Defendant agency, Department of Corrections, is dismissed from the causes of action in Counts Four, Five, Seven and Eight. In conclusion, defendants' preliminary objection relating to the defense of sovereign immunity is denied. Defendants' objection regarding the legal insufficiency of the malicious prosecution count is granted, as plaintiff has also agreed. Defendants' third objection relating to the statute of limitations for the Whistleblower counts is granted to the extent that the alleged occurrences took place before the 180 days prior to plaintiff filing the complaint. Further, defendant 9 DOC is also dismissed from counts four, the Dragonetti Act claim, five, wrongful use of civil proceedings, six, malicious prosecution, seven, abuse of process; and eight, intentional infliction of emotional distress, as agreed by plaintiff. 10 99- 2z8e NOTICE TO PLEAD TO PLAINTIFF: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days of the date of service hereof or a judgment may be entered against you. Office of Attorney General 15' Floor, Strawberry Square Harrisburg PA 17120 717.787.3874 (Direct Dial) 717.772.4526 (Facsimile) E-Mail: ffilipi@attomeygeneral.gov D. MICHAEL FISHER Attorney General By: -? FRANCIS R. FILIPI Senior Deputy Attorney General Attorney ID# 18630 SUSAN J. FORNEY Chief Deputy Attorney General Date: May 4, 2000 FRANCIS R. FILIPI Senior Deputy Attorney General Office of Attorney General 15" Floor, Strawberry Square Harrisburg PA 17120 Attorney for the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David E-Mail: ffilipi@attonicygetieral.gov Direct Dial: (717) 787-3874 FAX: (717) 772-4526 Wakefield, Bernon Lane, Patrice C. Dupnock, Timothy D. Mara and Joseph Mushinski Attorney ID# 18630 IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS, Plaintiff V. No. 99-3238 Civil COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants ANSWER FILED ON BEHALF OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, MARTIN F. HORN, FRANK D. GILLIS, DAVID WAKEFIELD, BERNON LANE, PATRICE C. DUPNOCK, TIMOTHY D. MARA AND _JQSEPH MUSHINSKI WITH NEW MATTER Defendants Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David Wakefield, Bemon Lane, Patrice C. Dupnock, Timothy D. Mara and Joseph Mushinski, by their attorneys, answer the complaint as follows: 1. THE PARTIES I. Defendants are without infonnation or knowledge to determine whether plaintiff resided in Kulpmont, Pennsylvania, during all times lie was employed at the State Correctional Institution at Coal Township (SCI-Coal Township) or in Pottstown, Pennsylvania, at "all other subsequent times." 2. ADMITTED that the Department of Corrections is an agency of the Commonwealth of Pennsylvania, and that the Department employed plaintiff and the other defendants and that the Department's principal address is in Cumberland County at the address provided in the caption of the complaint. DENIED that plaintiff was employed by the Department "at all times set forth [in the complaint]." 3. ADMITTED Martin F. Horn is the Secretary of Corrections. Secretary of Corrections is the proper statutory title for the office held by Martin F. Hom. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that Secretary Hom committed any "acts, or failures to act" which could make him liable to plaintiff or that anything done or not done by Secretary Hom was unlawful or discriminatory. 4. ADMITTED Frank D. Gillis is the Superintendent of the State Correctional Institution at Coal Township. The remainder of this paragraph requires no -2- response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that anything done or not done by Superintendent Gillis was unlawfui or discriminatory or that there is any reason Superintendent Gillis should be found liable to plaintiff. 5. ADMITTED David J. Wakefield was one of two Deputy Superintendents of the State Correctional Institution at Coal Township. DENIED that he continues to hold that position as he transferred to the State Correctional Institution at Rockview to assume a position as one of that institution's two Deputy Superintendents. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that anything done or not done by Deputy Superintendent Wakefield was unlawful or discriminatory or that there is any reason Deputy Superintendent Wakefield should be found liable to plaintiff. 6. ADMITTED Bemon Lane is one of two Deputy Superintendents of the State Correctional Institution at Coal Township. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that anything done or not done by Deputy Superintendent Lane was unlawful or discriminatory or that there is any reason Deputy Superintendent Lane should be found liable to plaintiff. -3- 7. ADMITTED Patrice C. Dupnock is the Personnel Director and Equal Opportunity Officer for the State Correctional Institution at Coal Township. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be fund liable to plaintiff. DENIED that anything done or not done by Mrs. Dupnock was unlawful or discriminatory or that there is any reason Mrs. Dupnock should be found liable to plaintiff. 8. ADMITTED Timothy D. Mara was an Assistant Counsel for the Pennsylvania Department of Corrections at the time this action was filed. DENIED that he continues to hold that position. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that anything done or not done by Mr. Mara was unlawful or discriminatory or that there is any reason Mr. Mara should be found liable to plaintiff. 9. ADMITTED Joseph Mushinski was formerly the Major of the Guard for the State Correctional Institution at Coal Township. The remainder of this paragraph requires no response as it is simply an assertion as to why this defendant should be found liable to plaintiff. DENIED that anything done or not done by Captain Mushinski was unlawful or discriminatory or that there is any reason Captain Mushinski should be found liable to plaintiff. -4- 10. No response is required as this paragraph does not relate to a served, answering defendant. DENIED that anything done or not done by any employee of the Department of Corrections concerning plaintiff was unlawful or discriminatory or that there is any reason Department of Corrections should be found liable to plaintiff. lI. SUMMARY OF THE CLAIMS AND CAUSES OF ACTION 11. All allegations of fact are DENIED. The remainder are conclusions of law to which no response is required. 12. DENIED that the state common law claim for malicious prosecution remains in this action against any defendant or that the claims for wrongful use of civil proceedings, abuse of process or intentional infliction of emotional distress remain in this action as to Defendant Commonwealth of Pennsylvania, Department of Corrections. The remainder of this paragraph requires no response as they are conclusions of law. III. FACTUAL BACKGROUND 13. ADMITTED plaintiff filed the complaint on the date cited complaining about statements made by Joseph Mushinski. 'The characterization as to what the written complaint conveyed is DENIED. The written complaint plaintiff signed speaks for itself. The plaintiff's August 30, 1996, complaint identifies six occasions over a period of approximately two weeks when plaintiff alleges Joseph -5- Mushinski used the phrase "employee of color" to refer to him. Defendants arc without information or knowledge sufficient to form a belief as to what plaintiff intends to imply by the term "on many occasions" and therefore that reference is DENIED. DENIED that Joseph Mushinski intended any statement he made to be improper, racially discriminatory or derogatory. 14. ADMITTED that Joseph Mushinski was suspended for twenty days and was demoted to the rank of Captain and that this is the consequence of plaintiffs complaint about Mushinski. 15. ADMITTED. 16. ADMITTED that Captain Mushinski is believed to be "generally popular and well-liked" by co-workers of all ranks. DENIED that any defendant "released into the work force" that Mushinski had been suspended and was being demoted. By way of further answer, this knowledge was the natural consequence of taking these actions as it is impossible to reassign duties without the reasons for the reassignments becoming common knowledge to some extent. 17. DENIED. a. DENIED Captain Mushinski's spouse circulated or signed such a petition. After reasonable investigation, defendants are without information or knowledge sufficient to detennine whether any such petition was circulated or, if so, by whom and strict proof -6- is demanded is deemed relevant, DENIED is any implication that any such petition was received by any defendant. b. After reasonable investigation, defendants are without information or knowledge sufficient to determine whether such a collection was undertaken or attempted and strict proof is demanded if deemed relevant. DENIED is any implication that any defendant was aware of any such or attempted collection. C. DENIED. d. After reasonable investigation, defendants are without information or knowledge sufficient to determine whether there existed a "general dislike" of plaintiff "among many corrections officers and/or other staff' and, if so, the reasons for such dislike and strict proof if demanded is deemed relevant. DENIED is any implication that such attitudes were promoted by any action of any defendant or that any defendant was made aware of such attitudes, 18. ADMITTED. 19. DENIED. 20. DENIED. 21. ADMITTED. -7- 22. ADMITTED. 23. ADMITTED plaintiff asked Hughes what he meant by the statement. After reasonable investigation, defendant is without information or knowledge sufficient to determine whether plaintiff used the term "stalking" in this conversation and strict proof is demanded is deemed relevant. 24. DENIED as stated. Based on information and belief, Hughes responded by stating: "We had an appointment." and made no mention of plaintiffs wife. 25. ADMITTED in part; DENIED in part. ADMITTED plaintiff wanted to immediately go to defendant Wakefield's office and that Wakefield had informed plaintiff to inform him if he had any problems. DENIED Wakefield informed plaintiff that there were individuals at SCI-Coal Township who had bad feelings or ill will toward plaintiff. 26. ADMITTED in part; DENIED in part. ADMITTED plaintiff and Hughes went defendant Wakefield's office. DENIED, based on information and belief, that Hughes had threatened plaintiff or his spouse. 27. DENIED, based on information and belief 28. ADMITTED. 29. ADMITTED in part; DENIED in part. ADMITTED plaintiff said that Hughes was stalking him and that he repeatedly said he would kill Hughes. DENIED that he claimed Hughes was stalking his wife or that his threats to kill Hughes -8- were connected to an issue of self-defense. 30. ADMITTED. 31. DENIED. 32. DENIED as stated. Defendant Wakefield remembers plaintiff using the term "stalking" but not that plaintiff was asking Wakefield to order Hughes to not stalk him off duty. Rather, defendant Wakefield recalls plaintiff saying something to the effect: "Tell him to stay away from me at Bloomsburg." 33. ADMITTED. 34. DENIED except ADMITTED that plaintiff stated he would kill Hughes (without referencing a triggering event). 35. DENIED. 36. DENIED. 37. ADMITTED. 38. ADMITTED. 39. ADMITTED. By way of further answer, Wakefield was worried about plaintiff's irrational behavior and him uttering death threats. 40. ADMITTED except DENIED that the reason can be described as "purported." 41. DENIED. 42. DENIED. 43. DENIED. -9- a. DENIED plaintiff was singled out or threatened. Plaintiff was informed he risked discipline for his aggressive reaction to the direction to not park his car in the visitors parking lot. b. DENIED that bowing at one's superiors has been practiced by many employees or that plaintiff's antics could be fairly called bowing. 44. ADMITTED except DENIED that this incident occurred on June 23, 1997. 45. ADMITTED. 46. Based on information and belief, DENIED. 47. ADMITTED. 48. ADMITTED. 49. ADMITTED. 50. ADMITTED except based on information and belief, the two statements were in reverse order from that presented in this allegation and plaintiff only identified himself in response to Henning's question. 51. Based on information and belief, DENIED. 52. Based on information and belief, DENIED. 53. DENIED as irrelevant. 54. After reasonable investigation, defendants are without information or knowledge sufficient to determine whether such a call was attempted and, if so, what was plaintiffs motivation for attempting it and demand strict proof if deemed relevant. 10- ADMITTED Robert Collins is the unit manager for A Unit. 55. Based on plaintiff's reported actions, DENIED. 56, DENIED. 57. DENIED. 58. DENIED. By way of further response, plaintiff was angry and Henning was simply trying to respond. 59. ADMITTED. 60. DENIED as stated. By way of further answer, plaintiff was exiting the unit when Collins asked Henning what was going on and before Henning could complete a response plaintiff interrupted, using a threat. 61. DENIED as stated. Plaintiff was directed to leave. 62. ADMITTED. 63. DENIED that plaintiff would not have attempted to fight Henning had Collins not interceded. 64. ADMITTED. 65. ADMITTED except defendant Wakefield asked plaintiff to provide a statement - not the other way around. 66. ADMITTED. 67. ADMITTED except DENIED is the characterization "forced." 68. ADMITTED. 69, DENIED as stated. The letter speaks for itself. 70. ADMITTED. 71. DENIED that the investigation did not examine what Henning had done. ADMITTED Henning received no discipline as the investigation determined he had done nothing wrong. 72. At this time defendants are without information as to exactly when the meeting took place in the context of Henning's work schedule or the escort of plaintiff and strict proof is demanded is deemed relevant. 73. DENIED plaintiff cooperated. 74. ADMITTED. 75. DENIED plaintiff cooperated. 76. ADMITTED. 77. ADMITTED. 78. ADMITTED plaintiff was terminated from employment and officially notified by a letter sent from SCI-Coal Township on July 23, 1997. The remainder is DENIED as stated. Rather, the decision made by Superintendent Gillis was effectively the final decision as no one superior to him in the Department and no one at the Office of Administration countermanded it. 79. DENIED that the investigation did not examine what Henning had done. ADMITTED Henning received no discipline as the investigation determined lie 12- had done nothing wrong. 80. DENIED that there was an incident on June 23, 1997. ADMITTED Henning received no discipline as the investigation determined he had done nothing wrong. 81. ADMITTED. 82. ADMITTED. 83. ADMITTED. 84. DENIED. 85. This is a legal conclusion to which no response is required. 86. ADMITTED. 87. a. DENIED. b. DENIED. C. ADMITTED except DENIED is any implication that Henning was under subpoena or otherwise required to attend, that Timothy D. Mara attempted to dissuade any witness he knew plaintiff intended to call from attending voluntarily or that Timothy D. Mara "instructed" Henning or any other witness to not attend the hearing. d. DENIED. (i) DENIED as stated. Plaintiffs area of responsibility did not include going over to A Unit to confront Henning; -13- (ii) DENIED as stated. The testimony was that plaintiff was physically menacing Henning on a unit not his own and in front of inmates which posed a security threat; (iii) ADMITTED in part; DENIED in part. The assertion that the employer, through Timothy D. Mara, elicited testimony that plaintiffs confrontation was unprovoked is ADMITTED. That it is was known or should have been known that Henning had instigated and provoked plaintiff is DENIED, 88. ADMITTED. 89. ADMITTED in part; DENIED in part. DENIED that the appeal was frivolous or taken in retaliation. ADMITTED that an appeal was taken. 90. DENIED is the implication that the procedure employed in UC appeals to the UC Board of Review calls for the employer to submit oral or written argument, findings of fact or conclusions of law. 91. ADMITTED. 92. ADMITTED in part; DENIED in part. DENIED that the appeal was frivolous or taken in retaliation. ADMITTED that an appeal was taken. 93. ADMITTED. 94. ADMITTED. 95. This is a legal conclusion to which no response is required. -14- 96. This is a legal conclusion to which no response is required. 97. This is a legal conclusion to which no response is required. 98. DENIED. a. DENIED. b. DENIED. (i) DENIED as stated. The testimony was that plaintiff was physically menacing Henning on a unit not his own and in front of inmates which posed a security threat; (ii) ADMITTED in part; DENIED in part. The assertion that the employer, through defendant Mara, elicited testimony that plaintiff's confrontation was unprovoked is ADMITTED. That it was known or should have been known that Henning had instigated and provoked plaintiff is DENIED. C. DENIED. (i) DENIED as stated. The testimony was that plaintiff was physically menacing Henning on a unit not his own and in front of inmates which posed a security threat; (ii) DENIED as stated. Plaintiff was physically menacing Henning on a unit not his own and in front of inmates which posed a security threat; -15- (iii) DENIED as stated. The assertion that the employer, through defendant Mara, elicited testimony that plaintiffs confrontation was unprovoked is ADMITTED. That it was known or should have been known that Henning had instigated and provoked plaintiff is DENIED. d. DENIED. (i) DENIED as stated. Plaintiff's area of responsibility did not include going over to A Unit to confront Henning; (ii) DENIED as stated. Please see the response to paragraph 91.d(ii) above; (iii) ADMITTED in part; DENIED in part. The fact plaintiff and Henning did not exchange blows is admitted. DENIED that this was ever the assertion by the employer; (iv) DENIED; (v) DENIED; (vi) DENIED. DENIED further as a legal conclusion. 99. DENIED as stated. The Civil Service Commission found for plaintiff under the 'Just cause" provision and determined that they did not need to address plaintiffs discrimination claim. 100. ADMITTED except DENIED that SCI-Chester is near Delaware County. -16- 101. ADMITTED. 102. ADMITTED except as plaintiff has not identified the individuals to whom he refers as the "John or Jane Does," defendants are unable to admit or deny that the person plaintiff is thinking of was involved in the decision. DENIED that the person who ultimately made the decision is employed in Central Office. 103. DENIED. a. DENIED. b. DENIED. (i) DENIED. It was decided to have plaintiff attend basic training due to the length of time he had been away from corrections employment and to give him a "fresh start." DENIED that the program is intended mistreat the student - either physically or mentally -- or to harass them; (ii) ADMITTED; (iii) DENIED as stated. Plaintiff was issued a reprimand for his unprofessional conduct (reporting to the first day late and inappropriately dressed; absenting himself from class without permission etc.). DENIED that the reprimand was issued because he had informed academy staff that "he was not a trainee and had been and was a Corrections Counselor 2." -17- 1 104. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. Defendants are also unable to respond to the allegation that "another white employee was not [`disciplined in and discharged from employment"'], as this allegation is entirely unclear in intended meaning and therefore it is DENIED. DENIED that any action taken was taken in retaliation for any assertion of a federally-protected right or for "racially disparate and/or discriminatory reasons" or that plaintiff has been subjected to a racially or otherwise hostile work environment. 105. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. DENIED that the stated reasons the discipline was imposed were pretext. 106. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. DENIED that defendants have permitted other employees to violate "more egregious or substantial ethical provisions" with impunity. If plaintiffs allegation that other employees were "disciplined in a grossly disparate and discriminatory manner relative to that suffered and incurred by plaintiff' is intended to mean that other employees were treated grossly more favorably or benefitted by being subjected to discrimination in their favor, it is DENIED. -18- 107. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. a. DENIED that the incidents of which defendants are aware are comparable to the acts of plaintiff that caused his discipline. Defendants are unaware of the alleged incidents that plaintiff asserts constitute federal and state felonies and demand strict proof at the time of trial if deemed relevant. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. b. DENIED that the incidents of which defendants are aware are comparable to the acts of plaintiff that caused his discipline. Defendants are unaware of all of the alleged incidents that plaintiff asserts constitute state misdemeanors and demand strict proof at the time of trial if deemed relevant. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. C. DENIED that the incidents of which defendants are aware arc comparable to the acts of plaintiff that caused his discipline. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. d. DENIED that the incident of which defendants are aware was a felonious assault or is comparable to the acts of plaintiff that caused his discipline. -19- Defendants are unaware of other incidents to which plaintiff may be referring that constitute felonious assaults and demand strict proof at the time of trial if deemed relevant, DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. C. DENIED that the incident of which defendants are aware did not result in appropriate punishment to those involved. If plaintiff is referring to some other incident other than the incident involving John Bartos, defendants are unaware of it and demand strict proof at the time of trial if deemed relevant. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. f. DENIED that the incident of which defendants are aware constituted a physical assualt. If plaintiff is referring to some other incident other than the incident involving Stan Moyer, defendants are unaware of it and demand strict proof at the time of trial if deemed relevant. DENIED that plaintiff received disparate or disciplinary discipline when compared to the discipline administered in other cases. g. DENIED. -20- COUNT ONE - VIOLATIONS OF THE PENNSYLVANIA HUMAN RELATIONS ACT Rogers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania. Department of Corrections 108. Defendants incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. 109. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. DENIED that any defendant committed any act or made any decision not to act that constitutes a violation of the Pennsylvania Human Relations Act. DENIED that plaintiffs discharge was racially motivated. DENIED that any defendant either created or permitted to exist or be maintained a hostile work environment. DENIED that any act or decision not to act was motivated by a desire to retaliate against plaintiff because he had complained about Captain Mushinski which resulted in the Captain's demotion and suspension or for any other reason. DENIED that any defendant aided or abetted any other defendant or any unidentified person to discriminate or retaliate against plaintiff. Each and every other allegation of fact contained in this paragraph not specifically addressed in this response is also DENIED. No further resr:mse is required as the remainder of this paragraph is a conclusion of law. -21- COUNT TWO - AIDING AND ABETTING VIOLATIONS OF THE PENN VLVANIA HUMAN RELATIONS ACT RRoizers v Martin F Horn Secretary and COnmonwealth of Pennsylvania Department of Corrections and all named Individual Defendants individually and in their official capacities 110. All defendants (including defendant Mara) incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. 111. Defendants are without information or knowledge to detennine what plaintiff truly believes and therefore it is DENIED. DENIED that any defendant committed any act or made any decision not to act that constitutes aiding or abetting a violation of the Pennsylvania Human Relations Act. DENIED that plaintiff s discharge was racially motivated. DENIED that any defendant either created or permitted to exist or be maintained a hostile work environment. DENIED that any act or decision not to act was motivated by a desire to retaliate against plaintiff because he had complained about Captain Mushinski which resulted in the Captain's demotion and suspension or for any other reason. DENIED that any defendant aided or abetted any other defendant or any unidentified person to discriminate or retaliate against plaintiff. Each and every other allegation of fact contained in this paragraph not specifically addressed in this response is also DENIED. No further response is required as the remainder of this paragraph is a conclusion of law. -22- TT WHISTLEBLQWER LAW Rogers v Martin F Horn, Secretary and Commonwealtl?f Pennsy vanta. Department -01,n rrectiot, and all individually named Defendants 112. All defendants (including defendant Mara) incorporate their responses to paragraphs I through 107 as if they were fully set forth herein. 913. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. To the extent the allegations pertain to actions taken prior to November 29, 1998, the cause of action is time barred by the applicable statute of limitations. The Court ruled on this matter on April 14, 2000. DENIED that any defendant committed any act or made any decision not to act that constitutes a violation of the Whistleblower Law. DENIED that any act or decision not to act was motivated by a desire to retaliate against plaintiff because he had complained about Captain Mushinski which resulted in the Captain's demotion and suspension or for any other reason including but not limited to assertions by plaintiff that any person has violated any provision of the PHRA or Title VII of the Civil Rights Act or because "plaintiff otherwise [was] taking action to protect his civil rights pursuant to federal and state law." DENIED that any defendant violated any provision of the PHRA or Titile VII of the Civil Rights Act. DENIED is any implication that this action includes a Title VII claim as plaintiff is simultaneously pursuing that claim in federal court -23- asserting such a claim. Each and every other allegation of fact contained in this paragraph not specifically addressed in this response is also DENIED. No further response is required as the remainder of this paragraph is a conclusion of law. COUNT FOUR - DRAGONET 1I ACT/STATUTORY WRONGFUL USE OF CIVIL PRO EDIN S Rogers v. Martin F. Horn, Secretary and Commonwealth of Pennsylvania. Department of Corrections. and all individually named Defendants 114. All defendants (including defendant Mara) incorporate their responses to paragraphs l through 107 as if they were fully set forth herein. 115. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. The Department of Corrections has been dismissed from this count. Moreover, the remaining defendants enjoy sovereign immunity as well. Not only Commonwealth agencies, but also their officials and employees when acting within the scope of his/her office or employment, are immune from damages by reason of sovereign immunity. The General Assembly has waived immunity for state employees in only for nine categories of negligent tort. This count alleges an intentional tort. As the legislature has not waived sovereign immunity for this torts claim it must be dismissed. -24- COUNT FIVE - WRONGFUL USE OF CIVIL PROCEEDINGS Roeers v Martin F Horn Secretary ttnd Commomvealth of PennsylvAnla Department of Corrections nod all individually named Defendants 116. All defendants (including defendant Mara) incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. 117. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. The Department of Corrections has been dismissed from this count. Moreover, the remaining defendants enjoy sovereign immunity as well. Not only Commonwealth agencies, but also their officials and employees when acting within the scope of his/her office or employment, are immune from damages by reason of sovereign immunity. The General Assembly has waived immunity for state employees in only for nine categories of negligent tort. This count alleges an intentional tort. As the legislature has not waived sovereign immunity for this torts claim it must be dismissed. COUNT SIX-, MALICIOUS PROSECUTION Rogers v. Martin F Horn S cretary and Commonwealth of Pennsylvania, Department of Corrections, and all individually named Defendants 118. All defendants (including defendant Mara) incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. -25- 119. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. No further response is required to this paragraph as it was dismissed by the Court's April 14, 2000, Order. QOUNT SEVEN - ABUSE OF PROCESS Rogers v. Martin F. Horn. Secretary and Commonwealth of Pennsylvania. Department of Corrections, and all individually named Defendant. 120. All defendants (including defendant Mara) incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. 121. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. The Department of Corrections has been dismissed from this count. Moreover, the remaining defendants enjoy sovereign immunity as well. Not only Commonwealth agencies, but also their officials and employees when acting within the scope of his/her office or employment, are immune from damages by reason of sovereign immunity. The General Assembly has waived immunity for state employees in only for nine categories of negligent tort. This count alleges an intentional tort. As the legislature has not waived sovereign immunity for this torts claim it must be dismissed. -26- MUNT FIGHT - INTF,NTIONAL INFLICTION OF EMOTIONAL DISTRESS Roeers v. Martin F Horn Secretary and Commonwealth of Pennsylvania De artment of Corrections and all individually named D r n is 122. All defendants (including defendant Mara) incorporate their responses to paragraphs 1 through 107 as if they were fully set forth herein. 123. Defendants are without information or knowledge to determine what plaintiff truly believes and therefore it is DENIED. The Department of Corrections has been dismissed from this count. Moreover, the remaining defendants enjoy sovereign immunity as well. Not only Commonwealth agencies, but also their officials and employees when acting within the scope of his/her office or employment, are immune from damages by reason of sovereign immunity. The General Assembly has waived immunity for state employees in only for nine categories of negligent tort. This count alleges an intentional tort. As the legislature has not waived sovereign immunity for this torts claim it must be dismissed. NEW MATTER 124. The defendants in this action, the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David Wakefield, Bernon Lane, Patrice C. Dupnock, Timothy D. Mara and Joseph Mushinski, are entitled to -27- judgment in their favor as to all remaining claims asserted by plaintiff for the reasons that follow as well as the responses to the preceding 123 paragraphs. 125. Martin F. Horn was not involved in any decision to either suspend or terminate plaintiff from his employment at the State Correctional Institution at Coal Township at any time. Nor was Secretary Horn involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings or subsequent decision to have plaintiff go through basic training. 126. Timothy D. Mara was not involved in any decision to either suspend or terminate plaintiff from his employment at the State Correctional Institution at Coal Township at any time. Nor was he involved in any decision to have plaintiff go through basic training. 127. Joseph Mushinski was not involved in any decision to either suspend or terminate plaintiff from his employment at the State Correctional Institution at Coal Township at any time. Nor was he involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings or subsequent decision to have plaintiff go through basic training. 128. Frank D. Gillis, although a copy recipient of a written suggestion that plaintiff attend basic training upon reinstatement, did not make that decision, did not lobby -28- for that decision to be made either in favor or against and otherwise was not involved in this decision in any way. Nor was he involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings. 129. David Wakefield was not involved in the decision to have plaintiff attend basic training upon his reinstatement in any way. Nor was he involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings. 130. Bemon Lane was not involved in the decision to have plaintiff attend basic training upon his reinstatement in any way. Nor was he involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings. 131. Patrice C. Dupnock was not involved in the decision to have plaintiff attend basic training upon his reinstatement in any way. Nor was she involved in any decision as to the handling of representation of the Commonwealth in the UC proceeding or the subsequent appeals or the Civil Service hearings. 132. Frank D. Gillis was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. -29- 133. David Wakefield was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 134. Bemon Lane was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 135. Patrice C. Dupnock was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 136. Martin F. Horn was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 137. Timothy D. Mara was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 138. Joseph Mushinski was not present when plaintiff reported to basic training and had no contact with anyone at the training academy concerning plaintiff or any aspect of his basic training. 139. The individual who ultimately made the decision to have plaintiff attend basic training upon his return to employment is not a defendant. -30- 140. The fact that plaintiff might have to attend a basic training course upon his reinstatement was mentioned during the course of negotiations with plaintiff's counsel after the Civil Service Commission ordered plaintiffs reinstatement by an attorney then employed by the Department (who is not a party to this action). 141. Plaintiffs counsel did not object or make any statement that attending basic training was unacceptable. 142. The persons who considered plaintiffs conduct, tardiness and dress on the first day plaintiff reported to the training academy inappropriate are not defendants. 143. The persons who decided to issue plaintiff a reprimand for his conduct, tardiness and dress on the first day plaintiff reported to the training academy inappropriate are not defendants. 144. Frank D. Gillis was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. 145. David Wakefield was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. 146. Bernon Lane was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. -31- i 147. Patrice C. Dupnock was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. 148. Martin F. Horn was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. 149. Timothy D, Mara was not involved in and had no knowledge of, the circulation of a petition protesting the discipline of Joseph Mushinski or the collection of or attempted collection of money to benefit Joseph Mushinski. 150. Joseph Mushinski was not involved in and had no knowledge of, the circulation of a petition protesting his discipline or the collection of or attempted collection of money for his benefit. 151. Joseph Mushinski's wife was not involved in and had no knowledge of, the circulation of a petition protesting his discipline or the collection of or attempted collection of money to benefit Joseph Mushinski. 152. Martin F. Horn had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 153. Frank D. Gillis had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. -32- 154. David Wakefield had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 155. Bemon Lane had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 156. Patrice C. Dupnock had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 157. Timothy D. Mara had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 158. Joseph Mushinski had no involvement whatsoever in any attempt to discipline plaintiff for parking his vehicle in the visitors parking lot. 159. Defendants neither created nor permitted to exist or be maintained a hostile work environment. No defendant acted or decided not to act motivated by a desire to retaliate against plaintiff because he had complained about Captain Mushinski or for any other reason. No defendant acted or decided not to act motivated by racial or other animus and none aided or abetted any other person to discriminate or retaliate against plaintiff. 160. The decision to appeal the referee's award of benefits to plaintiff to the UC Board of Review was not made by Timothy D. Mara and was not made to retaliate against plaintiff in any way. -33- 161. The decision to appeal the UC Board of Review's affirmance of the referee's award of benefits to plaintiff to the Commonwealth Court was not made by Timothy D. Mara and was not made to retaliate against plaintiff in any way. 162. At no time prior to the UC hearing did plaintiffs counsel inform Timothy D. Mara that he expected any witness employed by the Department to appear voluntarily. 163. At no time prior to the UC hearing did plaintiffs counsel subpoena or attempt to subpoena any witness to attend the UC hearing who did not attend that hearing. 164. At no time prior to the UC hearing did Timothy D. Mara instruct any witness whom he had knowledge plaintiffs counsel expected to attend that he should absent himself from the UC hearing. 165. At no time prior to the UC hearing did Timothy D. Mara inform any witness employed by the Department to attempt to evade service of a subpoena. 166. At no time prior to the UC hearing did Timothy D. Mara inform plaintiffs counsel that he did not need to subpoena a witness in order to assure he would be present at that hearing. 167. Timothy D. Mara functioned solely as legal counsel for the Department of Corrections when he represented the Department's interests at the UC hearing and at the Civil Service hearing. -34- 168. Specifically, he neither made the decision as to what charges should be or could be preferred against plaintiff which ultimately were the basis of the discipline administered to plaintiff nor advised any person who preferred such charges against plaintiff. 169. At all times Timothy D. Mara functioned as an attorney representing a client and an officer of the court. As such, he was obligated to zealously represent the interests of his client. 170. Timothy D. Mara was not free to disregard or alter the facts to contend that one or more of the bases that caused others to discipline plaintiff had not been the bases for that discipline, regardless of whether it may now appear to plaintiff to have been tactically advantageous to do so. 171. Timothy D. Mara was under no obligation to produce any documents that were not produced in either during or in advance of the UC hearing, the Civil Service Hearing or at any other time. 172. Plaintiffs counsel was free to seek an order compelling production of documents if he felt that documents were being improperly withheld but did not. 173. All defendants enjoy sovereign immunity, from suit on plaintiffs Dragonctti Act/statutory wrongful use of civil proceedings claim (Count Four). 174. All defendants enjoy sovereign immunity from suit on plaintiffs wrongful use of civil proceedings claim (Count Five). -35- 175. All defendants enjoy sovereign immunity from suit on plaintiffs abuse of process claim (Count Seven). 176. All defendants enjoy sovereign immunity from suit on plaintiffs intentional infliction of emotional distress claim (Count Eight). WHEREFORE, judgement should be entered in favor of all defendants and against plaintiff as to all claims and counts. Respectfully submitted, D. MICHAEL FISHER Attorney General BY: ? /? 2&-". FRANCIS R. FILIPI Senior Deputy Attorney General Attorney ID# 18630 SUSAN J.FORNEY Chief Deputy Attorney General Office of Attorney General 15th Floor, Strawberry Square Harrisburg PA 17120 717.787.3874 (Direct Dial) 717.772.4526 (Facsimile) Internet: ffilipi@attomcygeneral.gov Date: May 4, 2000 -36- -05/04/2000 15:04 570-644-3410 SCI COAL TWP PAGE 02 VERIFICATION I, PATRICE C. DUPNOCK, hereby verify subject to the penalties of 18 Pa.C.S, § 4904 that the foregoing responses In the Answer Filed on Behalf of the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Ham, Frank D. Gillis, David Wakefield, Bernon Lane, Patrice C. Dupnock, Timothy D. Mara and Joseph Mushinski with New Matter asserted is true and correct to the best of my information, knowledge and belief. Date: May 4, 2000 Patrice C. Dupnoc IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PENNSYLVANIA DOUGLAS J.ROGERS, Plaintiff V. No. 99-3238 Civil COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants CERTIFICATE OF SERVICE I, FRANCIS R. FILIPI, Senior Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on May 5, 2000, I will cause to be served a true and correct copy of the foregoing document entitled Answer Filed on Behalf of the Commonwealth of Pennsylvania, Department of Corrections, Martin F. Horn, Frank D. Gillis, David Wakefield, Bemon Lane, Patrice C. Dupnock, Timothy D. Mara and Joseph Mushinski with New Matter, by depositing same in the United States Mail, first-class postage prepaid to the following: Michael J. Wilson, Esq. 816 Derby Avenue Camp Hill, PA 17011-8367 FRANCIS R. FILIPI Senior Deputy Attorney General Attorney ID# 18630 Date: May 4, 2000 -38- ti 1 C.) I LJ Li 1 LL (J (Y: J lJ 1.1 l_)