D'ERRICO v. DeFazio

• Decision Date: 22 November 2000
• Citation: 763 A.2d 424
• Parties: Ida M. D'ERRICO, an Individual and Allison L. Hilliard, an Individual, Appellants, v. Peter DeFAZIO, an Individual.
• Court: Pennsylvania Superior Court

763 A.2d 424

Ida M. D'ERRICO, an Individual and Allison L. Hilliard, an Individual, Appellants, v. Peter DeFAZIO, an Individual.

Superior Court of Pennsylvania.

Argued May 16, 2000.

Filed November 22, 2000.

Robert L. Potter, Pittsburgh, for appellants.

Louis C. Long, Pittsburgh, for appellee.

BEFORE: KELLY, FORD ELLIOTT, and OLSZEWSKI, JJ.

FORD ELLIOTT, J.:

¶ 1 Appellants Ida M. D'Errico and Allison L. Hilliard appeal from the order dated June 9, 1999 and entered June 22, 1999 granting appellee Peter DeFazio's motion for summary judgment. We affirm. The factual and procedural history of the case, taken from the trial court's opinion and supported by the record, follows:

Plaintiffs filed a Complaint in the instant matter seeking to recover damages which they allegedly sustained as a result of an incident which occurred on July 25, 1997 when the Plaintiffs were terminated from their employment with the Three Rivers Regatta by Eugene F. Connelly, the General Chairman of the Regatta. The Plaintiffs' original Complaint did not contain a separate count or cause of action against the Defendant, Peter DeFazio, but thought to impose liability upon him on the basis that he provided two deputy sheriffs to accompany Mr. Connelly when he terminated the Plaintiffs from their employment. The Plaintiffs' original Complaint alleged that Mr. DeFazio, the Chief Deputy Sheriff at the time of the incident, violated the Second Class County Code, specifically, 16 P.S. § 4210(a) pertaining to private services and that he also engaged in official oppression in violation of 18 Pa.C.S.A. § 5301. In response to the Plaintiffs' original Complaint, the Defendant filed preliminary objections, which were sustained, and the Honorable Joseph James granted Plaintiff's thirty days to file an Amended Complaint to identify separate causes of action against Peter DeFazio. Plaintiffs filed an Amended Complaint in which they set forth separate causes of action against Defendant, Peter DeFazio, pursuant to the Official Oppression Statute and the Second Class County Code. They also included claims for assault, defamation and `intentional or prima facie tort.' The Plaintiffs claim that they are entitled to compensatory and punitive damages for the fear, fright, humiliation, and intimidation that they felt because of Peter DeFazio's actions in permitting the two deputies to assist Mr. Connelly when they were terminated from their employment. Although Peter DeFazio was not present when the Plaintiffs were fired from their employment, Plaintiffs contend that his actions in making the deputies available, rises to the level of an assault.

Evidence of record shows that on July 25, 1997, Mr. Connelly, accompanied by two deputies and a group [of] individuals which included Mr. Harry Fisfis and four laborers, walked into Ms. D'Errico's office, gave Ms. D'Errico her final paycheck, told her that her services were no longer needed and asked her to collect her belongings and leave. (D'Errico depo. Pp.24, 29). Ms. D'Errico stated that she wanted to gather her belongings and at that point, Mr. Fisfis directed his laborers to take the desk and one of the men knocked everything from the top of her desk. (D'Errico depo. P. 35). Then, Mr. Fisfis dumped everything from the top right-hand desk drawer onto the floor. (D'Errico depo. P. 36). One of the Sheriff deputies was present when Mr. Fisfis dumped the contents of the drawer. (D'Errico depo. P. 39). However, Ms. D'Errico testified that the deputies did not pull a gun nor did they have handcuffs in their hands. (D'Errico depo. P. 51). The only interaction between Ms. D'Errico and one of the deputies occurred when she was gathering some files and the deputy told her that the files were [R]egatta property and that she could not take them. Ms. D'Errico testified that she `politely informed him that it was my personal property' and `he backed off.' (D'Errico depo. P. 52).

Ms. Allison Hilliard testified in her deposition that when she was told that her services were no longer needed, the deputy did not pull out his gun or handcuffs. Further, she never had any conversations with the sheriff's deputy. (Hilliard depo. P. 43).

Defendant filed preliminary objections to the Amended Complaint on the basis that there is no private cause of action for official oppression. The Preliminary Objections were overruled without opinion by the Honorable Judge Farino. Thereafter, deposition testimony revealed facts regarding the events that took place on the day that Plaintiffs were terminated. On the basis of the deposition testimony, defendant presented a Motion for Summary Judgment before this Court. After hearing oral argument, reviewing the briefs and the record in this matter, this Court found that Defendant was entitled to Summary Judgment.

Trial court opinion, 10/18 /99 at 1-2.

¶ 2 Appellants raise the following issues on appeal:

I. In Deciding a Motion for Summary Judgment, is a Judge Obliged to Apply the `Law of the Case' Doctrine and Defer to a Prior Ruling of a Judge of the Same Court, Who Overruled Defendant's Prior Demurrer to Plaintiffs' Claims In Toto, When There is No Variance Between the Facts as Pleaded and as Demonstrated by Supporting Affidavits and Other Summary Judgment Materials and When the Only Issues Raised by the Motion for Summary Judgment are Identical to Those Raised By the Prior Demurrer, i.e., Whether the Plaintiffs have Stated Legally Cognizable Causes of Action Upon Which Relief Can Be Granted?

II. Does Pennsylvania's `Official Oppression' Statute, 18 Pa.C.S.A. § 5301, Imply a Private Right of Civil Action?

III. Does the Pennsylvania Statute Prohibiting the Wrongful Use of Private Services, 18 Pa.C.S.A. § 4210, Create a Private Right of Civil Action?

IV. May a Person Be Subject to Tort Liability for Assault Even if He is Not the Principal Actor and Is Not Present at the Scene of the Commission of the Assault?

V. Can Nonverbal Conduct Form the Basis of a Defamation Action?

VI. Does Pennsylvania Recognize a Cause of Action for `Intentional' or `Prima Facie' Tort?

Appellants' brief at 3.

¶ 3 A party may move for summary judgment 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. Pa.R.Civ.P. 1035.2(1). "Under [Rule 1035.2(1) ], the record shows that the material facts are undisputed and, therefore, there is no issue to be submitted to a jury." Pa. R.Civ.P. 1035.2, Note. Additionally, after completion of discovery relevant to the motion, a party may move for summary judgment when "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." Pa.R.Civ.P. 1035.2(2). "Under [Rule 1035.2(2) ], the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury." Pa. R.Civ.P. 1035.2(2), Note.

¶ 4 When an appellate court reviews the grant of a motion for summary judgment, our scope of review is well settled; the trial court will be overturned only if there has been an error of law or clear abuse of discretion. First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d 688, 691 (1995) (citations omitted). Our review of the record is, however, plenary. Keselyak v. Reach All, Inc., 443 Pa.Super. 71, 660 A.2d 1350, 1352 (1995). With our proper role in mind, we address appellants' issues out of order because our resolution of appellants' first issue depends in part on our resolution of their remaining issues.

¶ 5 In their second issue, appellants claim that Pennsylvania's official oppression statute, 18 Pa.C.S.A. § 5301, implies a private cause of action. The trial court, relying on Agresta v. Goode, 797 F.Supp. 399 (E.D.Pa.1992), found that no such private right of action exists in Pennsylvania. The Agresta court merely decided however, that in the absence of guidance from the Pennsylvania courts, it was "unwilling to imply from a criminal statute a private right of action that will have the effect of significantly increasing public officials' exposure to civil liability under state law." Id. at 409. We do not, therefore, find Agresta dispositive of this issue.

¶ 6 This court recently set forth the appropriate analysis when deciding whether a statute that does not expressly grant or deny a private statutory cause of action grants such a right implicitly. Alfred M. Lutheran Distributors v. Weilersbacher, Inc., 437 Pa.Super. 391, 650 A.2d 83, (1994), appeal denied, 540 Pa. 627, 658 A.2d 791 (1995). As in Alfred M. Lutheran Distributors, the statute in this case does not expressly grant or deny a private right of action:

§ 5301. Official oppression

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:

(1) subjects another to arrest, detention, search seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973.

18 Pa.C.S.A. § 5301. To determine whether the statute implies a private right of action, we must therefore determine 1) whether appellants are among the class for whose especial benefit the statute was enacted; 2) whether there is an indication of legislative intent, explicit or implicit, either to create such a remedy or to deny it; and 3) whether such a remedy is consistent with the underlying purposes of the legislative scheme to imply such a remedy. Alfred M. Lutheran Distributors, 650 A.2d at 87, citing and quoting Cort v. Ash, 422...