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HomeMy WebLinkAbout99-3238 civilDOUGLAS J. ROGERS, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA Ve 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, /~~ ([~, 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 plaintiff's Whistleblower claims is granted to the extent that the activities giving rise to plaintiff's claims occurred more than 180 days prior to the filing of plaintiff's 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. By the Court, Michael J. Wilson, Esq. Francis R. Filipi, Esq. 816 Derby Avenue Office of the Attorney General Camp Hill, PA 17011-8367 15th Floor, Strawberry Square Attorney for Plaintiff Harrisburg, PA 17120 Attorney for Defendants DOUGLAS J. ROGERS, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA 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. 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 plaintiff's Whistleblower Act claims. Plaintiff Douglas Rogers is an African American who worked for the State Correctional Institution at Coal Township (hereinafter SCl-Coal Township). (Plaintiff's 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). (Plaintiff's Complaint, para. 13). As a result, Mushinksi was suspended for 20 days and was demoted to the rank of Captain. (Plaintiff's Complaint, para. 14). Rogers asserts that as a result of Mushinski's suspension and demotion, certain members of the work force at SCl-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. (Plaintiff's Complaint, para. 18). Hughes taunted Rogers, attempted to provoke him, swore at him and threatened to strike him. (Plaintiff's Complaint, para. 19). Hughes also threatened to meet Rogers after work hours at a school where Rogers attended evening classes. (Plaintiff's Complaint, para. 20). Although the evening passed without incident, Hughes harassed Rogers again in the staff dining room the next day. (Plaintiff's Complaint, para. 22). Rogers asked Hughes to accompany him to the office of Deputy Superintendent David Wakefield (a defendant herein). (Plaintiff's Complaint, para. 25). Hughes continued to harass Rogers on the way to Wakefield's office. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's Complaint, para. 40). The other incident occurred on June 23, 1997, when Rogers and another employee were returning to their workstations from eating. (Plaintiff's Complaint, para. 44). Rogers had asked the employee whether he would like to come over to the E housing unit, where Rogers was working. (Plaintiff's 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. (Plaintiff's Complaint, para. 46). When both men returned to their workstations, Rogers called Henning in Unit A and asked him if he had a problem. (Plaintiff's Complaint, paras. 48-50). Henning replied with vulgar language. (Plaintiff's Complaint, para. 51). Rogers then went to Unit A in an attempt to contact Henning's supervisor, Collins. (Plaintiff's 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. (Plaintiff's Complaint, paras. 58-61). As a result of the incident, Rogers was suspended for thirty days without pay. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's Complaint, para. 78). Rogers applied for unemployment compensation (UC) benefits. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's Complaint, paras. 88-89). Rogers then appealed his suspension and termination to the State Civil Service Commission (SCSC) of the Commonwealth of Pennsylvania. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's 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. (Plaintiff's Complaint, paras. 108-123). DISCUSSION Defendants have raised the following preliminary objections to plaintiff's 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 plaintiff's 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 Association, Inc., 340 Pa. Super. 253, 260, 489 A.2d 1364, 1368 (1985). 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(a) 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 (8) intentional infliction of emotional distress. Plaintiff's 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 waivable. 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 (demurrer); 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 plaintiff's 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 filing 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 VVhistleblower 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