Ward v. Potteiger

• Decision Date: 09 June 2016
• Docket Number: No. 1201 C.D. 2015,1201 C.D. 2015
• Citation: 142 A.3d 139
• Parties: Alice WARD, Appellant, v. Michael C. POTTEIGER, Individually; and Michael W. Raith, Esquire, Individually; and Alicia Sweeney, Individually.
• Court: Pennsylvania Commonwealth Court

142 A.3d 139

Alice WARD, Appellant

v.Michael C. POTTEIGER, Individually; and Michael W. Raith, Esquire, Individually; and Alicia Sweeney, Individually.

No. 1201 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued May 13, 2016.

Decided June 9, 2016.

Kenneth B. Grear, Media, for appellant.

Suzanne M. McDonough, Media, for appellees Michael Raith and Alicia Sweeney.

Claudia M. Tesoro, Senior Deputy Attorney General, Philadelphia, for appellee Michael C. Potteiger.

BEFORE: ROBERT SIMPSON, Judge, and ANNE E. COVEY, Judge, and ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION BY Judge ANNE E. COVEY

.

Alice Ward (Ward) appeals from the Delaware County Common Pleas Court's (trial court) June 9, 2015 order sustaining preliminary objections filed by Michael C. Potteiger (Potteiger), Michael W. Raith (Raith) and Alicia Sweeney (Sweeney) (collectively, Appellees) to Ward's Sixth Amended Complaint. The sole issue before this Court is whether the trial court erred in sustaining the Appellees' preliminary objections and dismissing Ward's Sixth Amended Complaint.

According to the Sixth Amended Complaint, on January 3, 2012, while Ward was engaged in her job as a traffic controller on Providence Road in Edgemont Township, Delaware County, Pennsylvania, she was struck by a vehicle operated by Nicolas DeSimone (DeSimone). As a result of the accident, DeSimone was convicted of aggravated assault by vehicle while driving under the influence (DUI), aggravated assault by vehicle while driving under the influence of alcohol or controlled substance, and possession of a controlled substance, and is currently serving a prison term.

Ward also avers in the Sixth Amended Complaint that, at the time of the January 3, 2012 accident, DeSimone was a probationer under the supervision of the Delaware County Office of Adult Probation and Parole (DCOAPP). Hours preceding the accident, DeSimone had met with DCOAPP Officer Sweeney (Sweeney) as a condition of his parole. During the appointment, DeSimone admitted to Sweeney that he was under the influence of a controlled substance (i.e., specifically, heroin) in violation of his probation conditions, and would fail a drug test. Sweeney did not subject DeSimone to a drug test and, after discussing DeSimone's condition with DCOAPP Director Raith, permitted DeSimone to drive home. The accident occurred after DeSimone left his DCOAPP appointment.

Ward suffered significant injuries and damages as a result of the accident. On January 3, 2014, Ward filed a Section 1983 action¹ and state law claims in the United States (U.S.) District Court for the Eastern District of Pennsylvania against the Commonwealth of Pennsylvania Board of Probation and Parole (Board), Potteiger individually and in his official capacity as the Board's then-chairman, Delaware County, DCOAPP, Raith individually and in his official capacity as DCOAPP director, and Sweeney individually and in her capacity as a DCOAPP probation officer. After Ward had filed her second amended complaint, by September 22, 2014 order, the U.S. District Court dismissed Ward's federal claims against the parties,² and declined to exercise jurisdiction over Ward's state claims against Potteiger, Raith, and Sweeney in their individual capacities.

On November 24, 2014, Ward's second amended complaint seeking damages against Appellees in their individual capacities was filed in the trial court. Potteiger, Raith and Sweeney filed preliminary objections in the nature of a demurrer on the basis that the action against them is barred by the act commonly referred to as the Pennsylvania Sovereign Immunity Act (Sovereign Immunity Act).³ Between December 2014 and March 2015, Ward filed and Appellees preliminarily objected to three additional amended complaints on similar grounds.

On April 1, 2015, Ward filed the Sixth Amended Complaint at issue in this appeal. Therein, Ward included claims for:

Count I—Negligence/Gross Negligence/Willful Misconduct against Appellees

Count II—Constitutional Due Process Violations against Appellees

Count III—Punitive Damages against Appellees

Count IV—Vicarious Liability Involving Negligence/Gross Negligence/Willful Misconduct against Potteiger and Raith

Count V—Civil Conspiracy/Willful Misconduct against Raith and Sweeney

See Reproduced Record (R.R.) at 6a–25a.

Potteiger filed preliminary objections to the Sixth Amended Complaint on the bases that: (1) the trial court lacked jurisdiction over Ward's claims against him; (2) he is a high-ranking public official entitled to absolute immunity; (3) the Sovereign Immunity Act bars Ward's negligence and constitutional claims against him; (4) courts do not recognize money damages for constitutional violations; and, (5) he is not responsible for DCOAPP's actions or inactions. See R.R. at 34a–40a.

Raith and Sweeney similarly filed preliminary objections to the Sixth Amended Complaint.⁴ Their first preliminary objection was a demurrer to Ward's negligence and willful misconduct claims due to the immunity they enjoy under the Sovereign Immunity Act (Count I) because there does not exist under these circumstances actionable claims for money damages for constitutional violations (Count II), punitive damages (Count III), and civil conspiracy (Count V); and, because third-party conduct cannot trigger vicarious liability (Count IV). Raith's and Sweeney's second preliminary objection was a demurrer to Count II on the basis that they are immune from Ward's constitutional claims. See R.R. at 26a–32a.

By June 9, 2015 order, the trial court sustained Appellees' preliminary objections and dismissed Ward's Sixth Amended Complaint with prejudice.⁵ Ward appealed to this Court.⁶

When considering preliminary objections, we must accept as true all well-pled facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Preliminary objections in the nature of a demurrer should be sustained only where the pleadings are clearly insufficient to establish a right to relief and any doubt must be resolved in favor of overruling the demurrer.

Dadds v. Walters, 924 A.2d 740, 742 (Pa.Cmwlth.2007)

(citation omitted).

Ward argues that the trial court erred by sustaining Appellees' preliminary objections where the Sixth Amended Complaint, as a whole and specifically at paragraphs 16, 22–27, 33, 39, 53–54, 61, 63, 82–83b, 96–99, “clearly and without doubt laid a sufficient factual foundation showing Appellees' liability ... under the vehicle exception to immunity[.]”⁷ Ward Br. at 9. Specifically, Ward contends that since the Sixth Amended Complaint avers that Appellees had physical and legal possession of DeSimone's car keys and, thus, control of his vehicle prior to the accident, the Sixth Amended Complaint states a sufficient cause of action for Appellees to be individually liable for Ward's damages under the vehicle exception to the Sovereign Immunity Act.

Initially,

[t]he Pennsylvania Constitution provides that the Commonwealth and its officers and employees may only be sued where the General Assembly has authorized the suit. Pa. Const. art. 1 § 11

. The General Assembly has specified that ‘the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity.’ 1 Pa.C.S. § 2310.

Russo v. Allegheny Cnty., 125 A.3d 113, 116 (Pa.Cmwlth.2015)

.

Section 8522(a) of the Sovereign Immunity Act provides, in relevant part:

Liability imposed. —The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania

, does hereby waive, in the instances set forth in subsection (b) only and only to

the extent set forth in this subchapter and within the limits set forth in [S]ection 8528 [of the Sovereign Immunity Act] (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties,^{[8 ]} for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.

42 Pa.C.S. § 8522(a)

. Section 8522(b) of the Judicial Code contains the vehicle liability exception to sovereign immunity as follows:

The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

(1) Vehicle liability.—The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.

42 Pa.C.S. § 8522(b)

(text emphasis added).⁹ Because immunity remains the rule, we must narrowly construe the exceptions applicable under the Sovereign Immunity Act. See

Gale v. City of Phila., 86 A.3d 318 (Pa.Cmwlth.2014) ; see also

Quinones v. Dep't of Transp., 45 A.3d 467 (Pa.Cmwlth.2012).

In the instant case, Ward contends that paragraphs 16, 22–27, 33, 39, 53–54, 61, 63, 82–83b and 96–99 of the Sixth Amended Complaint provide the factual foundation for her vehicle liability claim against Appellees. Those averments state:

16. After completing his shopping, DeSimone drove in his car to Media to meet with [ ] Sweeney at the [DCOAPP] ... where DeSimone was in effect detained by [ ] Sweeney for purposes of his required probation visit which included detention and/or physical and legal possession and control over the vehicle and keysDeSimone had operated to get to this meeting and the same vehicle DeSimone would use to leave.

....

22. After knowing of DeSimone's admissions, ... Sweeney and [ ] Raith discussed the content of DeSimone's admissions and then Sweeney and Raith together agreed that despite at this time having legal and physical possession and

...