Mazur v. Cuthbert

• Decision Date: 16 April 2018
• Docket Number: No. 1008 C.D. 2017,1008 C.D. 2017
• Parties: Margaret MAZUR, Appellant v. Jamie CUTHBERT
• Court: Pennsylvania Commonwealth Court

186 A.3d 490

Margaret MAZUR, Appellant

v.Jamie CUTHBERT

No. 1008 C.D. 2017

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 15, 2017

Decided April 16, 2018

Reargument Denied June 11, 2018

Margaret Mazur, pro se.

Anthony Thomas Kovalchick, Deputy Attorney General, Pittsburgh, for appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE McCULLOUGH

Margaret Mazur (Mazur) appeals, pro se , from the April 7, 2017 order of the Court of Common Pleas of Allegheny County (trial court) sustaining the preliminary objections filed by Jamie Cuthbert (Cuthbert) and dismissing Mazur's amended complaint with prejudice. Mazur alleged in her amended complaint that Cuthbert unlawfully caused her injuries and damages due to publication of harmful defamatory statements that Cuthbert knew to be false.

Facts and Procedural History

Mazur and Cuthbert are both employed by the Commonwealth's Department of Military and Veterans Affairs (Department). (Trial court op. at 1.) Both Mazur and Cuthbert worked at the Department's Southwestern Veterans Center (Center). (Complaint at 1-2.)¹ Mazur had been employed for four years as an accounting assistant and Cuthbert was employed as a human resources analyst 2. Id. On May 16, 2016, Mazur went to the bank and withdrew $4,700.00 in cash for use by the Center's residents. (Amended Complaint, Attachment 1.B.)² Mazur had performed this duty on past occasions, as it was part of her normal work duties. After placing the cash in a bank bag, Mazur drove back to the Center without making any stops. Id. She placed the bag on the desk chair of her co-worker, accounting assistant Sharon Warden (Warden). Id. When Warden returned to her desk, she and Mazur counted the money in the bank bag and discovered that the bag only contained $4,200.00; after an exhaustive search, neither Warden nor Mazur could locate the missing $500.00. Id.

The Center initiated an investigation, which included a pre-disciplinary conference with Mazur on May 26, 2016, to determine if the missing money had been stolen or lost because of any carelessness, neglect, or indifference on Mazur's part. (Statement of Facts, Attachment 2.)³ Kim Kreiser (Kreiser), the Center's Chief of Employee Relations, was present at this conference. Mazur admitted at this conference that she left the bank bag unattended on Warden's chair but insisted that the door to the accounting office was closed at all times. She indicated her belief that the money had been stolen by either the bank manager or Warden. Nevertheless, the issue remained unresolved after the conference and Mazur was suspended without pay pending the outcome of a more thorough investigation. (Amended Complaint, Attachment 1.D.) The Center never recovered the missing funds, nor did it determine who took the funds or how the funds were taken. (Amended Complaint, Attachment 1.B.)

Mazur filed a grievance with respect to her unpaid suspension, and pursuant to a settlement agreement (Agreement) reached between Jennifer McClain-Miller (McClain-Miller), a Labor Relations Analyst for the Center, and Mazur's bargaining representative, the American Federation of State, County & Municipal Employees, Local 2207, Mazur received a time-served, eight-day suspension from May 27, 2016, through June 7, 2016, with a final warning that any further infractions/offenses would result in her termination. (Amended Complaint, Attachments 1.I and 1.K.) Mazur returned to work on June 13, 2016, at which time Cuthbert presented her with a written copy of the Agreement and asked her to sign a form acknowledging her receipt of the same. (Amended Complaint, Attachment 1.C.) However, Mazur refused to sign the acknowledgement because of the final warning language. Id. Cuthbert then called McClain-Miller and informed her of Mazur's refusal to sign, at which time McClain-Miller advised Mazur that the final warning was part of the Agreement. Id.

Unemployment Compensation Claim

In the meantime, Mazur had filed a claim for unemployment compensation benefits in an attempt to recover the income she had lost because of her unpaid suspension. (Amended Complaint, Attachment 1.E.) Mazur's claim was denied by notice of determination mailed June 17, 2016, id. , but it erroneously stated that Mazur had last worked for the Center on May 25, 2016, and had been discharged for dishonesty related to theft of money from her department.⁴ Id. Mazur's original complaint against Cuthbert alleging defamation attributed these same erroneous statements to Cuthbert. See Complaint at 3.

Original Complaint

More specifically, in this original complaint, which was incorporated into Mazur's amended complaint in its entirety, Mazur alleged that Cuthbert made knowingly false and defamatory statements regarding her purported theft and dishonesty to her superiors, including Kreiser and McClain-Miller, and to an unemployment compensation representative. Mazur noted that Cuthbert was aware of both a police and internal investigation, neither of which made such findings. In so doing, Mazur alleged that Cuthbert was acting outside the scope of her duties as a human resources analyst for the Center. (Complaint at 3-4.)

Mazur's original complaint placed heavy emphasis on the findings set forth by the unemployment compensation representative in the notice of determination denying her claim. Mazur alleged that the erroneous findings of fact contained therein were based upon statements relayed by Cuthbert to the unemployment compensation representative. Mazur described these statements as libelous on their face and stated that the same resulted in a loss of income, a loss of her reputation, shame, mortification, and hurt feelings. Additionally, Mazur alleged that these false statements resulted in an unjust final warning letter which placed her job and future employment in jeopardy. Mazur further alleged that the statements were not privileged because they were published by Cuthbert with malice and ill will toward her, with an intent to injure, but without any proof to substantiate the same. Mazur sought compensatory and punitive damages, as well as interest and the costs of filing this suit. (Complaint at 4-8.)

Preliminary Objections and Amended Complaint

Cuthbert filed preliminary objections in the nature of a demurrer and to dismiss Mazur's suit on the basis that Cuthbert, as an employee of the Commonwealth acting within her official duties, was immune from suit under 1 Pa.C.S. § 2310.⁵ Cuthbert noted that no waiver of immunity is applicable to her in this instance.⁶ Cuthbert also filed a demurrer and sought to dismiss Mazur's suit on the basis that she enjoyed an absolute privilege for the statements allegedly made. More specifically, Cuthbert noted that a witness who presents testimony or other information in the course of a proceeding is entitled to an absolute privilege and that such privilege has been extended to cover pertinent and material statements made during the regular course of state agency proceedings, citing Milliner v. Enck , 709 A.2d 417, 420-21 (Pa. Super. 1998) (holding that statements made to unemployment compensation representative were absolutely privileged from liability for defamation). (Preliminary Objections, February 15, 2017.)

By order dated March 3, 2017, the trial court sustained Cuthbert's preliminary objections and dismissed Mazur's complaint, without prejudice to file an amended complaint within 30 days properly alleging facts supporting her contention that the defamatory statements were made outside the scope of Cuthbert's employment.

On March 9, 2017, Mazur filed an amended complaint with numerous attachments, including, inter alia , copies of a police report indicating no arrests were made, a statement from McClain-Miller, her suspension letter, the notice of determination regarding her claim for unemployment compensation benefits, a statement from Mazur's representative at the unemployment compensation referee's hearing, the Center's Funds Management Policy, and Cuthbert's formal job description. Mazur alleged that these attachments provided "clear and convincing evidence and proof that [Cuthbert] was acting in her personal capacity with willful and intentional motives to harm [Mazur] and was not acting within the scope of her employment or furthering [the Center's] interests" when she made the statements. (Amended Complaint at 4.) More specifically, Mazur alleged that Commonwealth employees had a duty under the Public Official and Employee Ethics Act, 65 Pa.C.S. §§ 1101 - 1113, to "display honesty and integrity in the performance of their duties." (Amended Complaint at 7.) Mazur also cited to the values and standards required of Commonwealth employees under the Governor's Code of Conduct. Id.

Cuthbert thereafter renewed her preliminary objections in the nature of a demurrer and sought dismissal of Mazur's suit on the basis of immunity and absolute privilege. By order dated April 10, 2017, the trial court sustained Cuthbert's preliminary objections and dismissed Mazur's amended complaint with prejudice. Mazur then filed a notice of appeal with the trial court.

Trial Court Opinion

On May 12, 2017, the trial court issued an opinion in support of its order. In this opinion, the trial court explained that even accepting the allegations of Mazur's amended complaint as true, Mazur fails to set forth a claim against Cuthbert because Cuthbert is protected by sovereign immunity. Citing Yakowicz v. McDermott , 120 Pa.Cmwlth. 479, 548 A.2d 1330, 1333 (1988), appeal denied , 523 Pa. 644, 565 A.2d 1168 (Pa. 1989), the trial court noted that Commonwealth parties, which includes an employee like Cuthbert, are immune to the imposition of liability for actions taken within the scope of their duties except where the General Assembly has waived such immunity.⁷ The trial court also noted that defamation was an intentional tort,⁸ but that "Commonwealth...