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HomeMy WebLinkAbout99-0314 civilRODGER E. SGRIGNOLI, JR., Plaintiff VS. · EAST PENNSBORO AREA : SCHOOL DISTRICT and DR. : GLENN W. ZEHNER, EAST : PENNSBORO AREA SCHOOL : DISTRICT, CAROLE A. : CAPPRIOTTI, EAST : PENNSBORO AREA SCHOOL : DISTRICT, MARCIA GREENE, : Individually, and MR. PIERCE, · EAST PENNSBORO AREA : SCHOOL DISTRICT, EAST : PENNSBORO AREA SCHOOL : BOARD, and ANTHONY J. : FILIPPELLI, individually, and · PATTY J. SCHMICK, : individually, and JAMES N. · BIDDLE, individually, and JILL S. · DYSON, individually, and NANCY · K. OTSTOT, individually, and DR. · STEVEN J. FRANCHAK, : individually, and BRIAN A. PUNT, · individually, and KERRY J. · BROOKS, individually, · Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-0314 CIVIL CIVIL ACTION- LAW JURY TRIAL DEMANDED IN RE' DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this day of July, 1999, the preliminary objections of the defendants to the plaintiff's complaint are GRANTED and the complaint DISMISSED. BY THE COURT, i Hess, J. Rodger E. Sgrignoli, Jr. Plaintiff James K. Thomas, II, Esquire For the Defendants RODGER E. SGRIGNOLI, JR., Plaintiff VS. EAST PENNSBORO AREA SCHOOL DISTRICT and DR. GLENN W. ZEHNER, EAST PENNSBORO AREA SCHOOL DISTRICT, CAROLE A. CAPPRIOTTI, EAST PENNSBORO AREA SCHOOL DISTRICT, MARCIA GREENE, Individually, and MR. PIERCE, EAST PENNSBORO AREA : SCHOOL DISTRICT, EAST : PENNSBORO AREA SCHOOL : BOARD, and ANTHONY J. : FILIPPELLI, individually, and · PATTY J. SCHMICK, : individually, and JAMES N. · BIDDLE, individually, and JILL S. · DYSON, individually, and NANCY · K. OTSTOT, individually, and DR. · STEVEN J. FRANCHAK, : individually, and BRIAN A. PUNT, · individually, and KERRY J. · BROOKS, individually, · Defendants ·IN THE COURT OF COMMON PLEAS OF ·CUMBERLAND COUNTY, PENNSYLVANIA ·CIVIL ACTION- LAW · · · · JURY TRIAL DEMANDED IN RE' DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, JJ. OP1NION AND ORDER This matter is before the court on the preliminary objections of the defendants to the plaintiff' s complaint. The facts alleged in the complaint are as follows' On February 25, 1998 a dispute arose between the Plaintiff Rodger Scrignoli, Jr. and custodians employed by the East Pennsboro Area School District. The custodians apparently asked the plaintiff to remove duct tape that the plaintiff had placed on a gymnasium floor. 99-313 CIVIL Words were exchanged between the plaintiff and the custodians. The custodians reported the incident to their superiors, which led East Pennsboro Area School District employee Dr. Glenn Zehner to send the plaintiff a letter notifying the plaintiff that he would not be permitted to attend activities on school properties that were not educationally related for one year. The letter was first mistakenly sent to the plaintiff's father, Rodger Sgrignoli, Sr, then later it was correctly sent to the plaintiff. The plaintiff disagreed with the imposition of the one-year ban, and a meeting was held between the plaintiff, Zehner, and the custodians on April 21, 1998 to discuss the incident. The plaintiff felt he received no satisfaction at this meeting, and filed suit in the United States District Court for the Middle District of Pennsylvania against the East Pennsboro Area School District, as well as against individual school district employees. The District Court ultimately dismissed the plaintiff' s complaint. On January 20, 1999, the Plaintiff instituted the present action against the East Pennsboro Area School District, Zehner, the custodians involved in the dispute, and various other School district employees. In the complaint, the plaintiff sets forth causes of action based upon defamation (Count I), conspiracy (Count II), fraudulent misrepresentation (Count III), negligence (Count IV), fraud by use of the United States Postal Service (Count V), and emotional distress (Count VI). The defendants have filed a preliminary objection based on the plaintiff' s failure to make proper service pursuant to Pa.R.C.P. Rule 400, as well as preliminary objections in the nature of demurrers to all six counts of the plaintiff's complaint. For the following reasons we grant the defendants' preliminary objections. The test for preliminary objections is whether it is clear and free from doubt from all the facts pled that the pleader will be unable to prove facts legally sufficient to establish his right to 99-313 CIVIL relief. Firing v. Kephart, 466 Pa. 560, 563,353 A.2d 833,835 (Pa. 1976). In determining whether to sustain preliminary objections, this court must accept as tree all well pleaded material facts as well as any reasonable inferences that may be drawn from those facts. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (Pa. 1992). With one exception, the plaintiff's service of process is patently defective. There was an acceptance of service, as allowed under Pa.R.C.P. Rule 402, by defendants East Pennsboro Area School District, Zehner, Punt, and Schmick. However, service of the complaint as to the various other defendants was attempted via mail. Pursuant to Pa.R.C.P. Rule 400, service of process is to be done by the sheriff, and pursuant to Rule 403, service of original process by mail is permitted only in certain circumstances. No aspect of the plaintiff's complaint falls within one of those categories where service of' process by mail is proper and therefore the service of process as to the remaining defendants is defective. Nevertheless, even had the plaintiff's service of process conformed to the Pennsylvania Rules of Civil Procedure, the defendants' preliminary objections as to all six counts of the complaint must be granted. First, each of the plaintiff's tort claims against the East Pennsboro Area School District as a governmental entity are barred by governmental immunity under 42 Pa.C.S.A. Section 8541, which states that no local government agency is liable for injury caused by the government agency or by one of its employees except as provided by the act. A school district is defined as a local agency for purposes of governmental immunity. Petula v. Mellody, 158 Pa. Commw. 212, 216, 631 A.2d 762, 764 (Pa. Commw. Ct. 1993). In order for a local governmental agency to be liable under 42 Pa.C.S.A. Section 8542(a), a plaintiff must show that the damages would be recoverable pursuant to the common law or a statute, that the injury was caused by the negligent act of the agency or its employee, and that the 99-313 CIVIL negligent act falls within one of the eight exceptions to governmental immunity described in Section 8542(b). Malia v. Monchak, 116 Pa. Commw. 484, 491,543 A.2d 184, 188 (Pa. Commw. Ct. 1988). The eight exceptions to local government agency immunity listed in Section 8542(b) are' (1) vehicle liability; (2)care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa.C.S.A. Section 8542(b). Clearly, none of the counts of the plaintiff's complaint that allege negligent acts fall within one of the above eight exceptions. Additionally, Section 8542 (a)(2) states that "negligent acts" does not include acts which constitute a crime, actual fraud, actual malice or willful misconduct. Therefore, pursuant to Section 8542(a)(2), local government agencies cannot be liable for the willful or intentional acts of their employees. Steiner v. Steiner, 97 Pa. Commw. 440, 509 A.2d 1368, 1370 (Pa. Commw. Ct. 1986). Thus the counts of the plaintiff's complaint against the East Pennsboro Area School District alleging willful misconduct must be dismissed along with the counts alleging negligent conduct. The defendants have also filed demurrers to the plaintiff's claims against the individual defendants as well. An employee of a local government is liable for personal injuries caused by acts of the employee performed within the scope of his office or duties only to the same extent as the local government agency. 42 Pa.C.S.A. Section 8545. The plaintiff has not alleged any facts in the complaint that show that any of the school district employees named as defendants in this action acted outside the scope of their duties as employees of the East Pennsboro Area School District. Therefore, in order for the claims against the individuals to survive the defendants preliminary objections, the plaintiff must either allege negligent acts by the defendant employees 99-313 CIVIL that fall within one of the eight exceptions to immunity listed in Section 8542(b), or allege facts that the employees' acts constituted a crime, actual fraud, actual malice or willful misconduct, in which case the defense of official immunity is waived. 42 Pa.C.S.A. Section 8550. An action for defamation also does not fall within one of the eight exceptions listed in 42 Pa.C.S.A. Section 8545. Therefore, the plaintiff would have to allege that the libelous or slanderous acts by any of the various individual defendants were done willfully or maliciously in order to abrogate the official immunity defense pursuant to 42 Pa.C.S.A. Section 8550. "Willful misconduct" under Section 8550 requires a party to have acted with more than gross negligence or recklessness. McNeal v. City of Easton, 143 Pa. Commw. 151,159, 598 A.2d 638, 642 (Pa. Commw. Ct. 1991). Willful misconduct means that the actor desired to bring about the result that followed, or else that the actor was aware that the result was substantially certain to occur. Williams v. City of Philadelphia, 131 Pa. Commw. Ct. 71, 76, 569 A.2d 419, 421 (Pa. Commw. Ct. 1990). The plaintiff's complaint states that "the aforementioned defendants, did with willful, wanton and reckless disregard actively with knowledge and forethought conspire to libel (the plaintiff)." The complaint goes on to mention that the defendants made "slanderous accusations" and that the defendants "administered punishment from unsubstantiated charges by use of the United States Mail." This colorful language is repeated throughout count I, and throughout the entire complaint. However, these statements are merely conclusionary allegations without any underlying factual basis. In fact, the entire complaint contains only limited factual averments. Therefore, as the plaintiff has failed to allege any facts that support a claim that the defendants acted willfully to defame the plaintiff, the defendants' preliminary objection as to count I is granted. 99-313 CIVIL The defendants' preliminary objection to the plaintiff's conspiracy claim (count II) will also be sustained. The elements of a conspiracy claim are as follows: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage. Strickland v. Universi _ty of Scranton, 700 A.2d 979, 987- 988 (Pa. Super. 1997). The court went on to state that "proof of malice or intent to injure is essential to the proof of a conspiracy." Id. The plaintiff has again failed to allege facts that would establish that any of the individual defendants acted in concert to intentionally cause injury to the plaintiff. Count II of the complaint is filled with statements that the defendants conspired to slander and libel the plaintiff, inflict severe punishment, and perform various other alleged wrongdoings. These are once again bald conclusions without any factual underpinning and therefore the defendants' preliminary objection as to count II of the complaint is granted. The plaintiff s fraudulent misrepresentation claim (count III) and fraud by use of the United States Postal Service (count V) must also fail. The elements of fraud are as follows' "there must be (1) a fraudulent misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result." Delahanty v. First Pennsylvania Bank, 318 Pa. Super. 90, 108, 464 A.2d 1243, 1252 (Pa. Super. Ct. 1983). The plaintiff has failed to allege any facts to support a claim that any of the various defendants intentionally induced him to act, that he justifiably relied upon any misrepresentations by the defendants, or that any misrepresentation caused him to suffer damage. Counts III and V of the complaint merely recycle the same conclusionary statements contained 99-313 CIVIL within the various other counts of the complaint. Therefore, the defendants' preliminary objections to counts III and V are granted. The defendants' preliminary objection to the plaintiff's negligence claim (count IV) is also granted. As previously discussed, local government employees are immune to negligence claims based on injuries caused by acts performed within the scope of the employees' duties, unless th~ negligent acts fall within one of the eight exceptions listed in Section 8542. 42 Pa.C.S.A. Section 8542, 8545. The plaintiff's complaint makes no mention of any specific negligent acts that fall outside the scope of' the employees' official duties, nor does it allege any negligent acts that would fall within one of the eight listed exceptions to official immunity. The defendants have also filed a preliminary objection the plaintiff's claim for "emotional distress" (count VI). It is unclear from the plaintiff's complaint whether the plaintiff is asserting an intentional or negligent infliction of emotional distress claim. Under 42 Pa.C.S.A. Section 8545, negligent infliction of emotional distress does not fall within one of the eight exceptions to official immunity for local government agency employees. Therefore the plaintiff has no cause of action for negligent infliction of emotional distress. Intentional infliction of emotional distress is a tort recognized by the courts of Pennsylvania. McNeal v. City of Easton, 143 Pa. Commw. 151,156, 598 A.2d 638, 640 (Pa. Commw. Ct. 1991). To state a cause of action for intentional infliction of' emotional distress, the plaintiff must allege' (1) extreme and outrageous conduct on the part of the defendants; (2) intentional or reckless conduct; (3) the conduct must cause emotional distress; (4) and the distress must be severe. Kessler v. Monsour, 865 F.Supp. 234, 241 (M.D. Pa. 1994). The complaint fails to allege facts that any of the individual defendants engaged in outrageous conduct, or that there was conduct that was intentional or reckless. Under count VI, the 99-313 CIVIL complaint again recites conclusionary statements with little or no factual averments. Therefore, the defendants' preliminary objection as to the plaintiff's "emotional distress" claim is granted as well. Lastly, the defendants' have filed a preliminary objection to the plaintiff's request for punitive damages. Punitive damages are not recoverable, pursuant to Pa.C.S.A. Section 8553, against a local government agency or against an agency employee acting within his official capacity. Agresta v. Goode, 797 F.Supp. 399, 410 (E.D. Pa. 1992); Marko by Marko v. City of Philadelphia, 133 Pa. Commw. 574, 576, 576 A.2d 1193, 1194 (Pa. Commw. Ct. 1990). Thus, any claim for punitive damages against East Pennsboro Area School District is barred. Furthermore, as the plaintiff has not alleged any acts by the school district's employees acting in their individual capacity, any request for punitive damages based on the acts of the employees is also barred. For the reasons stated above, the defendants' preliminary objections to the plaintiff's complaint are granted. ORDER AND NOW, this q ' day of July, 1999, the preliminary objections of the defendants to the plaintiff's complaint are GRANTED and the complaint DISMISSED. BY THE COURT, Rodger E. Sgrignoli, Jr. Plaintiff James K. Thomas, II, Esquire For the Defendant / n. A. Hess, J.