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HomeMy WebLinkAbout98-5242 civilROBERT PAUL, Plaintiff Vo MICHELLE ADAMS and FLYING J., INC., Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · ' NO. 98-5242 CIVIL TERM · CIVIL ACTION - LAW BEFORE HOFFER, P.J., OLER, GUIDO, J J. ORDER OF COURT AND NOW, this ~f~tk day of OCTOBER, 1999, for the reasons set forth in the attached opinion, Defendants' Motion for Summary Judgment in connection with Count II, III and V is GRANTED. Their Motion for Summary Judgment in connection with the claim for punitive damages contained in Count IV is likewise GRANTED. The Motion for Summary Judgment in connection with Count I and the remainder of the claims in Count IV is DENIED. Richard C. Gaffney, Esquire For the Plaintiff By the Edward E. Guido, J. Timothy McMahon, Esquire For the Defendants Mr. Robert Paul 8108 Ridge Field Rd. Pensacola, Fla. 32514 'sld ROBERT PAUL Vo MICHELLE ADAMS and FLYING J, 1NC., · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 98-5242 CIVIL TERM · IN RE' DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, GUIDO, JJ~. OPINION AND ORDER OF COURT On September 10, 1998, Plaintiff instituted this action by filing a five (5) count complaint against the Defendants. On April 30, 1999, Defendants filed a Motion for Summary Judgment. Plaintiff did not file a response to the motion. Defendants filed a brief in support of their motion. Plaintiff did not file a reply brief. Both parties, through counsel, appeared before the Court to argue their respective positions. This matter is now ready for disposition. DISCUSSION At the outset Defendants argue that Plaintiff's failure to respond to their Motion for Summary Judgment entitles them to the entry of such judgment in their favor pursuant to Pennsylvania Rule of Civil Procedure 1035.3. The relevant portions of Pa. R.C.P. 1035.3 provide as follows: (a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion ... (d) Summary judgment may be entered against a party who does not respond. 98-5242 CIVIL TERM While Pa. R.C.P. 1035.3(d) allows us to enter summary judgment against a party for failing to respond, it does not require us to do so. Whether or not we do so is entirely within our discretion. Payton v. Pennsylvania Sling Co., 710 A.2d 1221 (Pa. Super. 1998), Smitley v, Holiday Rambler Corp., 707 A.2d 520 (Pa. Super. 1998). In the instant case we choose to exercise our discretion and overlook Plaintiff's failure to respond for two reasons. In the first instance, it is clear that Plaintiff and his counsel have been having a lengthy and vitriolic dispute over case strategy and payment of fees.~ Secondly, the record is sufficient to allow us to decide the motion on its merits. Under these circumstances, we feel justice would be served by addressing the motion on its merits. The Defendants' Motion for Summary Judgment is based upon Pa. Rule of Civil Procedure 1035.2 which provides as follows' After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. It is the Defendants' position that there is no genuine issue of any material fact with regard to their statute of limitations defense to the defamation claim set forth in Count II Refer to Counsel's Petition For Leave To Withdraw Appearance and Plaintiff's response thereto. 98-5242 CIVIL TERM of the complaint. The Defendants further argue that they are entitled to summary judgment on the remaining claims because Plaintiff has failed to come forward with evidence of facts essential to require those matters to be submitted to a jury. In determining whether to grant a motion for summary judgment, we must examine the record in the light most favorable to the non-moving party. City of York v. Schaefer Temporary Servs., Inc., 667 A.2d 495 (Pa. Commw. 1995). Summary judgment may only be granted in cases that are clear and free from doubt. Hoffman v. Brandywine Hosp., 443 Pa. Super. 245,661 A.2d 397 (1995). We will briefly summarize the facts Plaintiff has established by viewing the record in the light most favorable to him.2 On August 31, 1997, Plaintiff stopped at the Flying J. Travel Plaza in Cumberland County to get fuel for his track. At that time he was employed as an over the road track driver for North American Transportation. Plaintiff experienced a delay in fueling his track because of some problems with Defendant Flying J's fuel card reader. Plaintiff was required to seek assistance from the employee at the fuel desk. However, since she was the only employee, an additional delay ensued. Plaintiff and the fuel desk employee got along very well. They made good natured small talk while they worked together to solve the problem. There was a good deal of joking and laughing going on. After the problem was solved Plaintiff aSked to see the manager so he could report the delay. Defendant Adams was summoned. Plaintiff politely told Defendant Adams about the problem. He added that the pleasant fuel desk attendant appeared to be overworked and that the Defendants should think about getting her some help. Defendant 2 The "record" in this case consists of the deposition testimony of Plaintiff as well as the pleadings. See Pa. R.C.P. 1035.1 98-5242 CIVIL TERM Adams took great offense at being told how to mn her business. She became rode and abusive toward Plaintiff. Plaintiff requested the phone number of the regional manager so that he could report Defendant Adams' rude conduct. Plaintiff then voluntarily left the premises. Sometime after the Plaintiff left the premises, Defendant Adams, while in the course and scope of her employment, called Plaintiff's employer to report that he cursed at and was verbally abusive toward the fuel desk operator and several other employees. She also told his employer that he was so loud and abusive that he had to be escorted from the premises. At the time she made these allegations, she knew them to be untrue. As a direct result of these allegations, Plaintiff lost his job on September 8, 1997. Applying the law to the facts as set forth above, we are satisfied that Defendants are entitled to summary judgment in connection with the defamation claim set forth in Count II of the complaint. They are also entitled to summary judgment on the intentional infliction of emotional distress claim of Count III as well as the negligent hiring claim set forth in Count V. They are not entitled to summary judgment in connection with the claims set forth in Counts I and IV of the complaint. Count II- Defamation. The statute of limitations with regard to claims for defamation, libel and/or slander is one year.3 The complaint in this matter was filed on Thursday, September 10, 1998. The defamatory allegations took place sometime between August 31, 1997, and September 8, 1997. Plaintiff was made aware of the Defendant's conduct when he lost 3 42 Pa. C.S.A. § 5523(1). 98-5242 CIVIL TERM his job on September 8, 1997. Therefore, Plaintiff' s defamation claim is clearly time barred by the statute of limitations. Count III- Intentional Infliction of Emotional Distress. The requirements necessary to establish the tort of intentional infliction of emotional distress are set forth in Section 46(1) of the Restatement (Second) Torts which provides: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Several Pennsylvania appellate courts have adopted this section of the Restatement. See Taylor v. Albert Einstein Med. Ctr., 723 A.2d 1027 (Pa. Super. 1998); Johnson v. Caparelli., 425 Pa. Super. 404, 625 A.2d 668 (1993). However, our Supreme Court has not specifically done so. While our Supreme Court has not had occasion to adopt Section 46(1) of the Restatement (Second) Torts, it did discuss that section at length in Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183,527 A.2d 988 (1987). The court's discussion included the following instructions: It is basic to tort law that an injury is an element to be proven .... We therefore conclude that if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence. Id. at 197, 527 A.2d at 995. In the instant case, Plaintiff has not come forward with any competent medical evidence to support his alleged emotional distress. Consequently, 98-5242 CIVIL TERM Defendants' Motion for Summary Judgment must be granted in connection with this claim. Count V- Negligent Hiring. Plaintiff alleges that the Defendant Flying J breached its duty to use reasonable care in hiring and supervising Defendant Adams. This Commonwealth recognizes the existence of a cause of action for the negligent hiring and supervision of employees. See Heller v. Patwil Homes, Inc..., 713 A.2d 105 (Pa. Super. 1998). However, the law requires that the focus in such a claim be on the actions of the employer. Id.. The instant record is devoid of any evidence with regard to the actions of Flying J in connection with its hiring or supervision of Defendant Adams. Therefore, we must grant Defendants' Motion for Summary Judgment on this claim pursuant to Pa.R.C.P. 1035.2(2). Count I- Interference With Business Relationship. In order to sustain a cause of action for intentional interference with business relations the Plaintiff must establish all of the following elements' (1) an existing contractual relationship between himself and a third party; (2) Defendant interfered with the performance of the contract by inducing a breach or otherwise causing the third party not to perform; (3) Defendant's conduct was not privileged; and (4) Plaintiff suffered pecuniary harm. See A1 Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 497, 644 A.2d 188, 191 (1994). We are satisfied that the facts set forth above are sufficient to present the case to a jury on this cause of action. Therefore, Summary Judgment may not be granted in connection with this count. 98-5242 CIVIL TERM Count IV- Vicarious Liability. Count IV seeks to impose liability upon Defendant Flying J by alleging that Defendant Adams was acting at all times within the scope of her employment. We are satisfied that summary judgment is not appropriate on the issue of vicarious liability. The evidence of record presents, at the very least, a jury question as to whether or not Defendant Adams was acting within the scope of her employment.4 However, Count IV seeks only to impose vicarious liability upon Defendant Flying J for the actions of Defendant Adams. The claim for punitive damages contained in Count IV is ancillary to the claims against Defendant Adams for defamation and intentional infliction of emotional distress contained in Counts II and III. Those claims were dismissed pursuant to our previous discussion. Therefore, the punitive damages claim in Count IV must also be dismissed. For the reasons set forth in the above opinion, we will enter the order that follows. ORDER AND NOW, this 28TM day of OCTOBER, 1999, for the reasons set forth in the attached opinion, Defendants' Motion for Summary Judgment in connection with Count II, III and V is GRANTED. Their Motion for Summary Judgment in connection with the claim for punitive damages contained in Count IV is likewise GRANTED. The Motion for Summary Judgment in connection with Count I and the remainder of the claims in Count IV is DENIED. 4 Paragraph 52 of the complaint alleged that at the time Defendant Adams made the false statements regarding Plaintiff she was acting within the scope of her employment with Flying J. In its Answer Flying J denied that allegation generally, stating that it was a conclusion of law and demanding proof at trial. Arguably, Flying J's failure to specifically deny that allegation operates as an admission pursuant to Pa. R.C.P. 1029(b). The averment of"agency or employment" is not a conclusion of law but rather a fact which must be specifically denied. See Pa. R.C.P. 1029(e) and the comments thereto. 98-5242 CIVIL TERM By the Court, /s/Edward E. Guido, J. Richard C. Gaffney, Esquire For the Plaintiff Timothy McMahon, Esquire For the Defendants Mr. Robert Paul 8108 Ridge Field Rd. Pensacola, Fla. 32514 :sld