Demby v. Drexel Univeristy ( 2016 )

J. A33003/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
TROY DEMBY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DREXEL UNIVERSITY, DREXEL POLICE :
OFFICER ROBERT ALLEN (BADGE :
NO. 55), DREXEL POLICE OFFICER :
LAMBERT REBSTOCK (BADGE NO. 52), :
DREXEL POLICE OFFICER LOUIS :
GREGG (BADGE NO. 50), DIRECTOR :
OF DREXEL POLICE ED SPANGLER, :
DREXEL POLICE CAPTAIN FRED :
CARBONARA, DOMINIC :
CECCANECCHIO DREXEL UNIVERSITY :
DEPT. OF PUBLIC SAFETY, TIFFANY :
AUGUSTINE, DREXEL UNIVERSITY :
DEPT. OF PUBLIC SAFETY, DREXEL :
POLICE DETECTIVE ROBERT LIS AND : No. 2511 EDA 2014
DREXEL POLICE SERGEANT FERNANDO :
SANTIAGO :
Appeal from the Order Entered July 24, 2014,
in the Court of Common Pleas of Philadelphia County
Civil Division, at No. December Term, 2013 No. 3515
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 16, 2016
Troy Demby appeals from the order of July 24, 2014, sustaining
defendants/appellees’ preliminary objections in the nature of a demurrer and
dismissing his complaint with prejudice. We affirm in part, reverse in part,
and remand for further proceedings.
* Retired Senior Judge assigned to the Superior Court.
J. A33003/15
In his complaint filed February 11, 2014, appellant described the
parties to this action as follows:
2. Plaintiff, Troy Demby, is an adult male who is
and was at all material times a resident of
Philadelphia, Pennsylvania.
3. Defendant Drexel University (hereinafter
“Drexel”) is, upon information and belief, a
private non-profit domestic educational
corporation with a registered office at 3141
Chestnut Street in Philadelphia, Pennsylvania.
4. Defendant Tiffany Augustine was at all relevant
times a civilian employee of Drexel charged
with operating a close circuit television camera
and was required to follow Drexel’s Public
Safety Policy on CCTV.
5. Defendant Drexel Police Officers Robert Allen
(Badge No. 55), Lambert Rebstock (Badge No.
52), and Louis Gregg (Badge No. 50) were at
all relevant times sworn municipal police
officers with law enforcement authority at
Drexel’s three campuses in Philadelphia:
University City, Center City (Hahnemann
Campus), and Queen Lane Medical Campus.
6. Defendant Drexel police Sergeant Fernando
Santiago was at all relevant times a municipal
police officer with law enforcement authority at
Drexel’s three campuses in Philadelphia:
University City, Center City (Hahnemann
Campus), and Queen Lane Medical Campus.
Sergeant Santiago had supervisory authority
and responsibility over Drexel’s Police Officers,
including Allen, Rebstock, and Gregg.
7. Defendant Director of Police Ed Spangler was
at all relevant times a municipal police officer
with law enforcement authority, command, and
oversight of all policing activity at Drexel’s
three campuses in Philadelphia: University
-2-
J. A33003/15
City, Center City (Hahnemann Campus), and
Queen Lane Medical Campus.
8. Defendant Police Captain Fred Carbonara was
at all relevant times a municipal police officer
with law enforcement authority, command, and
oversight of all policing activity at Drexel’s
three campuses in Philadelphia: University
City, Center City (Hahnemann Campus), and
Queen Lane Medical Campus.
9. Defendant Vice President of Public Safety,
Dom[i]nic Ceccanecchio, was at all relevant
times a civilian employee of Drexel responsible
for managing all Drexel security and safety
related programs, services, agents, and
employees.
10. Defendant Detective Robert Lis was at all
relevant times the Assistant Director of
investigation for Drexel. His responsibilities
included internal affairs, special investigations,
evidence collection, and case file management.
11. At all times relevant, all named individual
defendants were acting within the course and
scope of their employment and authority as
Drexel employees and/or police officers.
12. At all times relevant, Defendant Drexel owned,
operated, managed, employed, directed, and
controlled the agents, including the named
individual defendants, identified herein.
Plaintiff’s Complaint, 2/11/14 at ¶¶ 2-12.
In sustaining appellees’ preliminary objections, the trial court relied on
the facts as alleged in appellant’s complaint:
This Court considered as true the following
facts which were alleged by the Plaintiff in his
Complaint, as well as all inferences reasonably
deducible therefrom:
-3-
J. A33003/15
13. On or about December 30, 2011, one
Walter Johnson was walking with
Earl Demby on Drexel University’s main
campus.[Footnote 1]
[Footnote 1] Emphasis added as
the Plaintiff in this case is
Troy Demby.
14. The two African American men were
doing nothing illegal. Still, Defendant
Augustine[Footnote 2] began following
them utilizing various CCTV cameras,
and observed the men try to open
several doors on the campus, all of which
are open to the public.
[Footnote 2] A Drexel employee.
15. None of the preserved video shows the
men possessing any screwdrivers, nor do
they show either of the men attempting
to pry or force open the doors.
16. Defendant Augustine ignored the lack of
any illegal activity and directed Drexel
Police attention to the two black males
near the Bossone building on Drexel’s
campus.
17. In response, at least two Drexel Police
vehicles responded by racing to the
intersection of 31st and Ludlow to
capture the men, who were simply
walking at that point near the boundary
of Drexel’s campus.
18. Defendants Gregg and Rebstock exited
the first vehicle. Gregg[] took
aggressive action toward Mr. Johnson.
Mr. Johnson fled, with Rebstock in
pursuit.
-4-
J. A33003/15
19. Defendant Gregg redirected his
aggressive actions toward Earl Demby,
who raised his hands in the air.
20. Defendant Allen drove a second Drexel
SUV toward Mr. Johnson at a high rate of
speed. He then made a wide turn,
accelerated, and crashed his vehicle
directly into Mr. Johnson, pinning his
body against a concrete wall. Defendant
Allen drove the SUV into Mr. Johnson
with such force that its hood buckled.
21. Defendant Allen opened the vehicle’s
driver door and spoke briefly with
Defendant Rebstock.
22. About 15 seconds later, Allen closed the
door and backed the vehicle up.
Mr. Johnson crumbled to the ground due
to the serious injuries he sustained.
23. Defendant Augustine saw all of the
aforementioned events occur.
24. Defendant Santiago arrived shortly
thereafter and was supervisor on the
scene. He took actions to avoid divisions
and/or officers from the Philadelphia
Police Department from being sent to the
scene. He succeeded.
25. Mr. Johnson was transported to the
Hospital of the University of
Pennsylvania.
26. Earl Demby was released at the
scene. [Emphasis added.]
27. Earl Demby and plaintiff,
Troy Demby, are brothers. [Emphasis
added.]
-5-
J. A33003/15
28. Troy Demby was not at the scene.
He was at work and/or commuting
home from work during the
aforementioned incident. [Emphasis
added.]
29. Police on the scene, including some
and/or all of the Defendant Police
Officers, completed false paperwork,
including some that was contradictory of
other paperwork. For example, some
paperwork indicated that Earl Demby --
incorrectly identified in police paperwork
as plaintiff, Troy Demby -- was released
from the scene because he had proper
identification and was released for
further investigation according to one
report; another report indicates that
Troy Demby was mistakenly released at
the scene.
30. Additional police paperwork completed
by the individual defendant officers
falsely indicated that Troy Demby and
Mr. Johnson dropped screwdrivers that
they were purportedly using to attempt
to pry open locked doors.
31. In reliance of information -- the vast
majority of which was false -- provided
by Defendants Augustine, Allen,
Rebstock, Santiago, and Gregg,
Philadelphia Police Detective Theodore
Manko, Jr. (Badge No. 961) submitted
paperwork causing the Philadelphia
District Attorney’s Office to charge
plaintiff, Troy Demby, with Attempted
Burglary, Criminal Conspiracy, Attempted
Criminal Trespass, Possession of an
Instrument of Crime, and Criminal
Mischief.
32. Mr. Johnson was arrested while being
treated for his serious injuries that were
-6-
J. A33003/15
caused by Defendant Allen crashing a
large police SUV into him and pinning
him against a concrete building.
33. An arrest warrant was issued for
Troy Demby. Mr. Demby turned himself
in once he learned of the warrant.
34. Defendants Carbonara and Spangler
viewed the CCTV preserved video that
showed Mr. Johnson being smashed into
by the police SUV driven by Defendant
Allen.
35. Defendant Lis was responsible for
ensuring a proper investigation of the
aforementioned incident.
36. Defendants Augustine, Allen, Gregg, and
Rebstock appeared for four listings of
Plaintiff and Mr. Johnson’s preliminary
hearing scheduled on various dates in
January through March, 2012. At no time
did any of those defendants inform
representatives of the Philadelphia
District Attorney’s Office that the
allegations against Plaintiff and
Mr. Demby in the police paperwork were
false.
37. On March 28, 2012, Defendants
Augustine and Gregg did testify against
Plaintiff and Mr. Johnson at their
preliminary hearing. Augustine offered
incomplete testimony, leaving out the
portion of the incident in which Allen
drove his vehicle into Mr. Johnson, and
Gregg offered false testimony about the
incident, resulting in Plaintiff and
Mr. Johnson being bound over for trial on
the charges detailed supra.
-7-
J. A33003/15
38. Drexel, through its agents and
supervisors acting in the course and
scope of their employ, including Director
of Police Ed Spangler, Police Captain
Fred Carbonara, Detective Lis, and
Vice President of Public Safety Dom[i]nic
Ceccanecchio, knew, should have known,
or were recklessly indifferent to the fact
that the Drexel CCTV video did not
support the averments being made in the
police paperwork at issue or the charges
being brought by the Philadelphia District
Attorney’s Office.
39. Drexel, through its agents and
supervisors acting in the course and
scope of their employ, including Director
of Police Ed Spangler, Police Captain
Fred Carbonara, Detective Lis, and
Visce [sic] President of Public Safety
Dom[i]nic Ceccanecchio, knew, should
have known, or were recklessly
indifferent to the fact that Augustine and
Gregg intended to offer, and did offer,
the false and /or incomplete testimony
against Plaintiff, Troy Demby, and
Mr. Johnson at their preliminary hearing.
40. At no time did any Drexel agent or
employee, including the named individual
defendants, with knowledge of the actual
events in the CCTV video, alert the
Philadelphia District Attorney’s Office
concerning the true nature of the events
depicted therein.
41. Drexel, through its agents and
supervisors acting in the course and
scope of their employ, including Director
of Police Ed Spangler, Police Captain
Fred Carbonara, Detective Lis, and
Visce [sic] President of Public Safety
Dom[i]nic Ceccanecchio, deliberately
disregarded Drexel’s Police Directives,
-8-
J. A33003/15
Code of Conduct, and various
memoranda in carrying out their duties
and responsibilities during this incident
and its aftermath, including throughout
the duration of plaintiff, Troy Demby and
Mr. Johnson’s prosecution.
42. The Philadelphia District Attorney’s
Office, after reviewing the evidence,
including the available CCTV evidence,
withdrew charges against plaintiff,
Troy Demby and Mr. Johnson on
October 15, 2012.
Plaintiff’s Complaint, ¶ 13-42. [Emphasis added.]
Based upon these facts, the Plaintiff drew the
legal conclusions that Defendants Augustine, Allen,
Rebstock, Gregg, Spangler, Carbonara,
Ceccanecchio, Santiago, and Lis engaged in
(Count 1) a conspiracy to make false statements to
law enforcement, thus violating 18 Pa.C.S. § 4906.
Plaintiff also alleged the torts of (Count 2) false
arrest and (Count 3) false imprisonment as
committed by Augustine, Allen, Rebstock, Gregg,
and Santiago; (Count 4) malicious prosecution and
(Count 5) intentional infliction of emotional distress
as committed by Augustine, Allen, Rebstock, Gregg,
Spangler, Carbonara, Ceccanecchio, Santiago, and
Lis. Plaintiff also alleged (Count 6) negligent
infliction of emotional distress against all defendants,
including Drexel University; (Count 7) negligence
and (Count 8) vicarious liability on the part of Drexel
as the employer.
Trial court opinion, 1/21/15 at 2-6.
On July 24, 2014, the trial court sustained appellees’ preliminary
objections and dismissed the complaint with prejudice. This timely appeal
followed on August 19, 2014. Appellant complied with Pa.R.A.P. 1925(b),
and the trial court filed an opinion.
-9-
J. A33003/15
Appellant brings the following issues for this court’s consideration on
appeal:
I. Whether the lower court utilized the incorrect
standard of review by accepting facts outside
the complaint that were proffered by
Appellees, and drawing inferences in
Appellees[’] favor?
II. Whether the lower court erred by not applying
the doctrine of transferred intent?
III. Whether the lower court erred by determining
that Appellant had not pleaded sufficient facts
that would allow recovery under any
circumstance for the causes of action contained
[in] the complaint?
Appellant’s brief at 5. We will address appellant’s issues together,
examining each count of the complaint to determine whether appellant pled
facts sufficient to survive demurrer.
Our scope of review is plenary when reviewing a trial
court’s order sustaining preliminary objections in the
nature of a demurrer. See Glassmere Fuel Serv.,
Inc. v. Clear, 900 A.2d 398, 401 (Pa.Super. 2006).
“In order to determine whether the trial court
properly sustained Appellee’s preliminary objections,
this court must consider as true all of the well-
pleaded material facts set forth in the complaint and
all reasonable inferences that may be drawn from
those facts.” Id. at 402. In conducting appellate
review, preliminary objections may be sustained by
the trial court only if the case is free and clear of
doubt. See Knight v. Northwest Sav. Bank, 747
A.2d 384, 386 (Pa.Super. 2000).
Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa.Super.
2006), appeal denied, 916 A.2d 1103 (Pa. 2007).
- 10 -
J. A33003/15
First, we address appellant’s claim for civil conspiracy. Appellant
alleged that appellees conspired to conceal wrongdoing, including making
false statements.
In order for a claim of civil conspiracy to
proceed, a plaintiff must “allege the existence of all
elements necessary to such a cause of action.”
Rutherfoord v. Presbyterian-University
Hospital, 417 Pa.Super. 316, 612 A.2d 500, 508
(1992) (citation omitted).
The Pennsylvania Supreme Court set
forth the elements of civil conspiracy in
Thompson Coal Co. v. Pike Coal Co.,
488 Pa. 198, 211, 412 A.2d 466, 472
(1979): “It must be shown that two or
more persons combined or agreed with
intent to do an unlawful act or to do an
otherwise lawful act by unlawful means.”
Proof of malice, i.e., an intent to injure,
is an essential part of a conspiracy cause
of action; this unlawful intent must also
be without justification. [Id.].
Furthermore, a conspiracy is not
actionable until “some overt act is done
in pursuance of the common purpose or
design . . . and actual legal damage
results.”
Id. (quotation omitted). In addition, “[a] single
entity cannot conspire with itself and, similarly,
agents of a single entity cannot conspire among
themselves.” Id.Grose v. Proctor & Gamble Paper Products, 866 A.2d 437, 440-441
(Pa.Super. 2005), appeal denied, 889 A.2d 89 (Pa. 2005). As agents of
Drexel University, appellees cannot “conspire” among themselves. Id.- 11 -
J. A33003/15
Therefore, the trial court properly dismissed appellant’s count of civil
conspiracy for failure to state a cause of action.
We now turn to Counts 2 and 3 of the complaint, false arrest and false
imprisonment. Appellant argues that although appellees did not physically
arrest him, they created the paperwork containing false accusations on
which the arrest warrant was based.
False arrest and false imprisonment are nearly
identical claims, and courts often analyze the claims
together. False arrest is grounded in the Fourth
Amendment’s guarantee against unreasonable
seizures, where false imprisonment is based upon
the Fourth Amendment’s prohibition against
deprivation of liberty without due process of law.
Claims of both false arrest and false imprisonment
are predicated on an arrest made without probable
cause in violation of the Fourth Amendment.
Wilson v. Dewees, 977 F.Supp.2d 449, 455 (E.D.Pa. 2013) (quotation
marks and citations omitted).
The elements of false imprisonment are (1) the
detention of another person, and (2) the
unlawfulness of such detention. An arrest based
upon probable cause would be justified, regardless of
whether the individual arrested was guilty or not.
Fagan v. Pittsburgh Terminal Coal Corporation,
299 Pa. 109, 149 A. 159 (1930). Probable cause
exists when “the facts and circumstances which are
within the knowledge of the police officer at the time
of the arrest, and of which he has reasonably
trustworthy information, are sufficient to warrant a
man of reasonable caution in the belief that the
suspect has committed or is committing a crime.”
Commonwealth v. Rodriguez, 526 Pa. 268, 273,
585 A.2d 988, 990 (1991). (Citation omitted.)
Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).
- 12 -
J. A33003/15
Instantly, it is undisputed that appellant was not at the scene.
Appellees never had any contact with appellant. An arrest warrant was
issued by the Philadelphia District Attorney’s Office, not by appellees. Based
upon appellees’ “investigation,” the District Attorney’s Office determined that
probable cause existed to file criminal charges and an arrest warrant was
issued for appellant, who subsequently turned himself in to Philadelphia
police.
The trial court contends that appellant’s false arrest/imprisonment
claims fail because the District Attorney’s Office determined that there was
probable cause to bring criminal charges based on Drexel’s investigation.
(Trial court opinion, 1/21/15 at 9.) The issue is not whether the Philadelphia
authorities had probable cause to file criminal charges, but rather whether
the information supplied by Drexel authorities was fraudulent.
Accepting the factual allegations in the complaint to be true, as is the
standard of review, Earl Demby and Mr. Johnson were simply walking
around the university campus, which was open to the public. They had
attempted to gain entrance to several buildings on campus, but there was no
evidence whatsoever of any criminal activity. After the two men were
detained, and Mr. Johnson was crushed by the police SUV, it is alleged that
appellees manufactured evidence in an attempt to justify their actions.
Appellees accused “Troy” Demby and Mr. Johnson of using burglary tools in
an effort to break into university buildings. The CCTV video evidence belied
- 13 -
J. A33003/15
these accusations. In addition, according to the complaint, appellees
perjured themselves at the preliminary hearing. Again, for purposes of
ruling on preliminary objections, all these allegations are taken as true.
The Philadelphia Police Department and District Attorney’s Office
reasonably relied on appellees’ information when they issued the arrest
warrant for appellant. Appellees, as law enforcement officers, surely knew
when they created a false record that their actions would lead to an illegal
arrest. Therefore, if proven, they can be held liable for appellant’s false
arrest/imprisonment. See Patton v. Vucinic, 167 A. 450, 452 (Pa.Super.
1933) (where the plaintiff alleged that the defendant falsely and maliciously
accused him of stealing her stepfather’s car and directed his arrest by police,
the evidence was sufficient to establish a prima facie case of unlawful
arrest and false imprisonment).
Throughout its Rule 1925 opinion, the trial court reiterates that but for
the fact that Earl Demby falsely identified himself as appellant, appellant
never would have been arrested. This statement is true as far as it goes,
but it ignores the fact that “but for” appellees’ own alleged illegal and
outrageous conduct, in dereliction of their sworn duty as law enforcement
officers, Earl Demby never would have been detained in the first place, and
Troy Demby never would have been arrested. Ultimately, appellees’ alleged
false allegations are what prompted the police to arrest appellant. We
determine that the trial court erred in dismissing Counts 2 and 3 of
- 14 -
J. A33003/15
appellant’s complaint. Under these particularly unique circumstances, the
facts alleged by appellant were legally sufficient to make out claims for false
arrest/imprisonment against appellees.
Count 4 alleged malicious prosecution. “In order to establish a claim
for malicious prosecution a party must establish that the defendants
instituted proceedings against the plaintiff: 1) without probable cause,
2) with malice, and 3) the proceedings must have terminated in favor of the
plaintiff.” Bradley v. General Acc. Ins. Co., 778 A.2d 707, 710 (Pa.Super.
2001), citing McKibben v. Schmotzer, 700 A.2d 484, 492 (Pa.Super.
1997).
A private person is subject to liability for malicious
prosecution “‘if (a) he initiates or procures the
[institution of criminal] proceedings without probable
cause and primarily for a purpose other than that of
bringing the offender to justice, and (b) the
proceedings have terminated in favor of the
accused.’” Hess v. County of Lancaster, 100
Pa.Cmwlth. 316, 514 A.2d 681, 683 (1986) [quoting
Restatement (Second) of Torts § 653 (1977)].
“[C]riminal proceedings are initiated ‘by making a
charge before a public official or body in such form
as to require the official or body to determine
whether process shall or shall not be issued against
the accused.’” Id. (quoting Section 653 cmt. c).
The Hess court quoted with approval the following
portion of Section 653, comment g:
[G]iving the information or even making
an accusation of criminal misconduct
does not constitute a procurement of the
proceedings initiated by the officer if it is
left entirely to his discretion to initiate
the proceedings or not. . . . If,
however, the information is known
- 15 -
J. A33003/15
by the giver to be false, an
intelligent exercise of the officer's
discretion becomes impossible, and
a prosecution based upon it is
procured by the person giving the
false information. In order to charge a
private person with responsibility for the
initiation of proceedings by a public
official, it must therefore appear that his
desire to have the proceedings initiated,
expressed by direction, request or
pressure of any kind, was the
determining factor in the official's
decision to commence the prosecution,
or that the information furnished by him
upon which the official acted was known
to be false.
Id. 514 A.2d at 683.
Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 33 (Pa.Cmwlth.
1998), appeal denied, 740 A.2d 236 (Pa. 1999) (emphasis added).1
The first and third elements of a malicious prosecution claim are easily
satisfied, i.e., lack of probable cause and that the criminal proceedings
terminated in the plaintiff’s favor. As stated above, there was no probable
cause to prosecute appellant and eventually, after the District Attorney
reviewed the CCTV footage, the charges were dropped.
Again, appellees and the trial court focus on the fact that the charges
were not actually filed by them, but by the Philadelphia Police
1
“This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1088-1089 n.1 (Pa.Super. 2010),
appeal denied, 12 A.3d 371 (Pa. 2010) (citations omitted).
- 16 -
J. A33003/15
Department/District Attorney’s Office. However, as the language quoted
above makes clear, a third party can be sued for malicious prosecution
where he procures the institution of criminal proceedings without probable
cause and primarily for purposes other than bringing the offender to justice.
Essentially, it comes down to bad faith, which is the case here. As pleaded
in the complaint, appellees knew that the allegations were false and that the
Philadelphia municipal police authorities were relying on these false
allegations to charge appellant. As alleged, appellees knew that there was
no evidence that Earl Demby or Mr. Johnson was trying to pry open doors
with screwdrivers. The paperwork was falsified and their testimony at the
preliminary hearing would therefore appear to be suspect. Furthermore,
their alleged purpose in doing so was to cover up their own criminal
misconduct in illegally detaining Earl Demby and running over Mr. Johnson
with an SUV.
The trial court remarks, “It was [appellant’s] brother, Earl Demby, who
set this whole series of events into motion by falsely claiming to police that
he was the Plaintiff, Troy Demby.” (Trial court opinion, 1/21/15 at 14.)
According to the trial court, this case boils down to a simple case of
mistaken identity. We could not disagree more. In fact, it was the Drexel
University police officers who “set this whole series of events into motion”
when they responded to initial reports of two black men walking around
campus by aggressively pursuing them and pinning one of them against a
- 17 -
J. A33003/15
wall with their police vehicle. Appellant alleges that they then attempted to
justify their behavior in the eyes of the public by falsifying documents. The
fact that their false allegations name Troy instead of Earl is of no moment.
Appellant pled sufficient facts in support of his claim for malicious
prosecution to survive demurrer.
Count 5 was for intentional infliction of emotional distress.
Liability for the tort of intentional infliction of
emotional distress arises “where the conduct has
been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society.” Generally,
“the case is one in which the recitation of the facts to
an average member of the community would arouse
his resentment against the actor, and lead him to
exclaim, ‘outrageous.’”
Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879
A.2d 270, 281 (Pa.Super. 2005), appeal denied, 891 A.2d 729 (Pa. 2005),
quoting Strickland v. University of Scranton, 700 A.2d 979, 987
(Pa.Super. 1997).2
2
The tort of outrageous conduct causing severe emotional distress is
outlined in § 46 of the Restatement (Second) of Torts as follows:
(1) 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.
(2) Where such conduct is directed at a third
person, the actor is subject to liability if he
- 18 -
J. A33003/15
Cases which have found a sufficient basis for a cause
of action of intentional infliction of emotional distress
have had presented only the most egregious
conduct. See e.g., . . . Banyas v. Lower Bucks
Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981)
(defendants intentionally fabricated records to
suggest that plaintiff had killed a third party which
led to plaintiff being indicted for homicide); Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265(3d.Cir. 1979) (defendant’s team physician released
to press information that plaintiff was suffering from
fatal disease, when physician knew such information
was false).
Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (additional citation
omitted).
Certainly, appellant’s allegation that appellees knowingly made false
statements and presented false testimony that not only led to appellant’s
false arrest/imprisonment, but was done by the Drexel police in an effort to
shield themselves from potential civil and criminal liability does rise to the
level of the outrageous conduct described in Hoy. Most of appellees were
sworn police officers with law enforcement authority. They allegedly falsified
intentionally or recklessly causes severe
emotional distress.
(a) to a member of such person’s
immediate family who is present at
the time, whether or not such
distress results in bodily harm, or
(b) to any other person who is present
at the time, if such distress results
in bodily harm.
- 19 -
J. A33003/15
records and lied under oath to conceal their own criminal wrongdoing. Their
behavior, if true, was beyond the bounds of all decency.
Regrettably, however, appellant is unable to cite any authority for the
proposition that an intentional infliction claim can be sustained in this case,
where he was not the intended target of appellees’ false accusations.
Appellant was not present at the scene of Earl Demby’s arrest and had no
contact with any of the individual defendants. We are constrained to
conclude that demurrer was properly granted as to appellant’s intentional
infliction of emotional distress claim.3
We briefly address appellant’s argument concerning the doctrine of
transferred intent, which ordinarily applies in criminal cases but can be
invoked in intentional torts as well. 18 Pa.C.S.A. § 303; Germantown Ins.
Co. v. Martin, 595 A.2d 1172, 1175 (Pa.Super. 1991), appeal denied, 612
A.2d 985 (Pa. 1992) (“Intent may be transferred from an intended victim to
another.”), citing Nationwide Mut. Ins. Co. v. Hassinger, 473 A.2d 171(Pa.Super. 1984). According to appellant, even though he was not at the
scene and had no direct contact with appellees, their intent to “frame”
Earl Demby and Mr. Johnson can be transferred to him. (Appellant’s brief at
14.) Appellant analogizes the facts to a scenario in which an individual
3
Appellant has abandoned his negligent infliction of emotional distress
claim, pled in Count 6 of the complaint. (Appellant’s brief at 19 n.2.)
- 20 -
J. A33003/15
intends to physically assault a second person, but a third person is actually
harmed. (Id. at 15.)
There is some authority for the idea that transferred intent should
apply, beyond physical-harm cases, to cases where the actor intends to
cause severe emotional harm to one person, but instead of harming the
intended victim, the conduct harms a different person. See Rest. (3rd) of
Torts § 46, comment (i); Prosser & Keeton on Torts § 12, p. 65 (5 th ed.
1984) (“There seems to be little reason to apply [transferred intent] when
the plaintiff suffers physical harm, and to reject it where there is mental
damage.”); Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d 22, 38-39 (Tenn. 2005) (“[W]e hold that a claim of
reckless infliction of emotional distress need not be based upon conduct that
was directed at a specific person or that occurred in the presence of the
plaintiff.”). However, Pennsylvania has retained the “directed-at”
requirement of the Second Restatement, i.e., direct claims for intentional
infliction of emotional distress must be based upon conduct that is directed
at a specific person or performed in the presence of the plaintiff. See
Johnson v. Caparelli, 625 A.2d 668, 671 (Pa.Super. 1993), appeal
denied, 647 A.2d 511 (Pa. 1994) (holding that Section 46(1) “applies to
situations in which a person suffers severe emotional distress as a result of
outrageous conduct which is directed at that individual”). Because the
alleged extreme and outrageous conduct of appellees was not “directed at”
- 21 -
J. A33003/15
appellant, and he was not present at the time the acts were committed, he
cannot recover for intentional infliction of emotional distress. Johnson. The
cases relied upon by appellant in support of application of the transferred
intent doctrine, including Martin and Hassinger, involved bodily injury and
are inapposite.
Finally, we address appellant’s claims for negligence and vicarious
liability against Drexel University. The trial court dismissed these claims on
the basis that none of the conduct described in the complaint constitutes any
legally cognizable tortious or wrongful conduct by Drexel’s employees or
agents. (Trial court opinion, 1/21/15 at 18.) Obviously, this conclusion is
incorrect, since we have already found that appellant has set forth
prima facie claims for false arrest/imprisonment and malicious prosecution.
It is well settled that an employer has the duty to exercise reasonable
care in selecting, supervising, and controlling its employees. Brezenski v.
World Truck Transfer, Inc., 755 A.2d 36, 42 (Pa.Super. 2000) (citation
omitted). See also Heller v. Patwil Homes, Inc., 713 A.2d 105, 107
(Pa.Super. 1998) (“Our reasoning that an employer may be liable directly for
wrongful acts of its negligently hired employee comports with the general
tort principles of negligence long recognized in this jurisdiction.”), citing
Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968). Here, under
Count 7, negligence, appellant alleged, inter alia, that Drexel failed to
properly train and supervise its employees, including the defendant police
- 22 -
J. A33003/15
officers, resulting in harm to appellant. Appellant alleged that Drexel failed
to train the defendants in the use of force and investigative techniques,
including stops and pursuits. (Plaintiff’s complaint, 2/11/14 ¶ 63; RR at
A15.) Appellant alleged that Drexel failed to have appropriate policies and
procedures in place and failed to meaningfully review its employees’ actions,
resulting in the wrongful prosecution of appellant. (Id.) Appellant has
sufficiently pled negligence against Drexel to survive demurrer. The trial
court erred in dismissing appellant’s negligence cause of action against
Drexel based on negligent training/supervision.
Similarly, with regard to vicarious liability, appellant alleged that the
individual defendants acted within the course and scope of their authority
with Drexel. (Id. at ¶ 68; RR at A16.) Appellant alleged that their actions
were performed in furtherance of the public safety objectives of Drexel, and
were authorized and customary as part of Drexel’s campus policing and
public safety programs. (Id. at ¶¶ 69-70; RR at A16-A17.)
As we noted in Sutherland v. Monongahela Valley
Hosp., 856 A.2d 55, 62 (Pa.Super. 2004):
Pennsylvania law with regard to the
vicarious liability of an employer for the
acts of its employee was well
summarized in R.A. v. First Church of
Christ, 748 A.2d 692[, 699] (Pa.Super.
2000), as follows:
It is well settled that an
employer is held vicariously
liable for the negligent acts
of his employee which cause
- 23 -
J. A33003/15
injuries to a third party,
provided that such acts were
committed during the course
of and within the scope of
the employment.
Scampone v. Grane Healthcare Co., 11 A.3d 967, 990 (Pa.Super. 2010),
affirmed in part on other grounds, 57 A.3d 582 (Pa. 2012).
The conduct of an employee is considered within the
scope of employment for purposes of vicarious
liability if: (1) it is of a kind and nature that the
employee is employed to perform; (2) it occurs
substantially within the authorized time and space
limits; (3) it is actuated, at least in part, by a
purpose to serve the employer; and (4) if force is
intentionally used by the employee against another,
the use of force is not unexpected by the employer.
R.A., 748 A.2d at 699 (internal quotation marks omitted).
Instantly, appellant pleaded that the defendants, agents and
employees of Drexel, committed torts against him in the course and scope of
their employment. We determine that appellant stated sufficient facts to
state a claim for vicarious liability against Drexel for the actions of its
employees. Therefore, the trial court erred in dismissing Count 8, vicarious
liability.
For these reasons, we affirm in part, and reverse in part. The order
dismissing Count 1 (civil conspiracy), Count 5 (intentional infliction of
emotional distress), and Count 6 (negligent infliction of emotional distress)
is affirmed; that part of the order dismissing Count 2 (false arrest), Count 3
- 24 -
J. A33003/15
(false imprisonment), Count 4 (malicious prosecution), Count 7 (negligence
-- Drexel), and Count 8 (vicarious liability -- Drexel), is reversed.
Order affirmed in part, and reversed in part. Case remanded for
further proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
- 25 -