Spitsin v. WGM Transportation, Inc. , 2014 Pa. Super. 162 ( 2014 )

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2014 Pa. Super. 162
IGOR SPITSIN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WGM TRANSPORTATION, INC. AND
JAMES JOHNSON, III
Appellee No. 2792 EDA 2013
Appeal from the Order entered on October 2, 2013
In the Court of Common Pleas of Monroe County
Civil Division at No.: 5544-CV-2013
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J.
OPINION BY WECHT, J.: FILED JULY 29, 2014
Igor Spitsin
complaint.1 We affirm.
Our standard of review of an order sustaining preliminary objections is
as follows:
[The appellate court must] determine whether the trial court
committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
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1
Johnson, III, and Johnson has not participated in this appeal.
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are admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections [that] seek the
dismissal of a cause of action should be sustained only in cases
in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to
relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting
Johnson v. Amer. Std., 8 A.3d 318, 329 (Pa. 2010)).
The facts as alleged by Spitsin in his complaint are as follows: On
August 16, 2011, Johnson was employed as a taxi driver for WGM. Johnson
picked up Spitsin on that date, and eventually brought Spitsin to the Wawa
convenience store on West Main Street, Stroudsburg, Pennsylvania,
ostensibly so that Spitsin could withdraw funds from an ATM to pay his cab
prevented from doing so by individuals inside the store. When Spitsin left
the store the way he had entered, Johnson stopped him, seeking the fare.
Spitsin attempted to flee, but was tackled and restrained by a bystander a
short distance away. While Spitsin was restrained, Johnson repeatedly
kicked and punched Spitsin in the face. Spitsin was transported to a nearby
hospital, where a scan revealed a hairline fracture in his jaw.
In count III of his complaint, the only count at issue in this matter,
Spitsin sought to recover damages from WGM on a theory of respondeat
superior. That doctrine provides as follows:
A master is liable for the acts of his servant [that] are committed
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employment. Restatement (Second) of Agency § 219. This
liability of the employer may extend even to intentional or
criminal acts committed by the servant. Restatement (Second)
of Agency § 231. Whether a person acted within the scope of
employment is ordinarily a question for the jury. Where,
however, the employee commits an act encompassing the use of
force which is excessive and so dangerous as to be totally
without responsibility or reason, the employer is not responsible
as a matter of law. If an assault is committed for personal
reasons or in an outrageous manner, it is not actuated by an
intent of performing the business of the employer and is not
done within the scope of employment.
The Restatement (Second) of Agency § 228 defines conduct
Conduct of a
servant is within the scope of employment if, but only if: (a) it is
of the kind he is employed to perform; (b) it occurs substantially
within the authorized time and space limits; (c) it is actuated, at
least in part, by a purpose to serve the master[;] and (d) if force
is intentionally used by the servant against another, the use of
the force is not unexpectable by the master. (2) Conduct of a
servant is not within the scope of employment if it is different in
kind from that authorized, far beyond the authorized time or
space limits, or too little actuated by a purpose to serve the
master.
Fitzgerald v. McCutcheon, 410 A.2d 1270, 1271-72 (Pa. Super. 1979)
(some citations omitted).
the following substantive propositions in support of its objections:
8. An employer is not, by reason of the doctrine of
respondeat superior, liable for an assault and battery by an
employee, since such conduct, constituting [a] wanton or willful
tort on the part of the employee, is generally regarded as
beyond the scope of employment.
9.
business if the employee commits an act encompassing the use
of force which is excessive and so dangerous as to be totally
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without responsibility or reason, and the employer is not
responsible as a matter of law. Costa v. Roxborough Mem.
Hosp., 708 A.2d 490 (Pa. Super. 1998);
Inc., No. Civ.A. 99-2459, 1999 WL 975125 (E.D.Pa. Oct. 6,
1999).
10. The alleged actions of [Johnson] are exactly the kind of
forceful act that is excessive and so dangerous as to be totally
without responsibility or reason and therefore [WGM] is not
vicariously liable as a matter of law.
at 2-3 (citations omitted or modified).
On September 9, 2013, after hearing argument, the trial court issued
respondeat superior claim against WGM. On
order. On December 4, 2013, the trial court directed Spitsin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
However, on the same day, the trial court entered a Rule 1925(a)
Appeal . . ., we determine that the Court has adequately addressed all issues
in its Opinion with accompanying
Statement Pursuant to Pa.R.A.P. 1925(a), 12/4/2013. Nonetheless, on
December 19, 2013, Spitsin timely filed a Rule 1925(b) concise statement.
On December 23, 2012, the trial court issued an order reiterating its reliance
upon its September 9, 2013 opinion.
Before this Court, Spitsin raises the following issue:
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James Johnson, an on-duty cab driver employed by WGM,
physically assaulted Spitsin while he was being restrained on the
ground in an effort to recover unpaid cab fare belonging to
WGM. On the facts averred in the complaint, is it clear and free
dangerous under the circumstances, and totally without
responsibility or reason, that he departed from the scope of his
employment as a matter of law?
Brief for Spitsin at 4.
For well over a century, Pennsylvania courts have endeavored to
delineate when an employer may be held liable for the acts of its employee.
The standard has changed at most modestly during that span. In Potter
Title & Trust Co. v. Knox, our Supreme Court characterized the governing
inquiry as follows:
It is a general rule of law that when an act is done in the course
from liability although the employe[e] abused his authority and
thereby inflicted injury upon another. Brennan v. Merchant &
Co., 54 A. 891, 892 (Pa. 1903); Pilipovich v. Pittsburgh Coal
Co., 172 A. 136, 137, 138 (Pa. 1934); Orr v. Wm. J. Burns
, 12 A.2d 25, 26, 27 (Pa. 1940). But
there is an important exception to that general principle. In the
Restatement of Agency § 229, comment b, it is said that
result, it may be done in so outrageous or whimsical a manner
231,
* * a gardener using a small stick in an
assault upon a trespassing child to exclude him from the
premises may be found to be acting within the scope of the
employment; if, however, the gardener were to shoot the child
for the same purpose, it would be very difficult to find the act
235, comment c, under
t that an
act is done in an outrageous or abnormal manner has value in
indicating that the servant is not actuated by an intent to
* * *. In such cases, the facts
may indicate that the servant is merely using the opportunity
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afforded by the circumstances to do the harm. Hence, unless
the principal has violated a personal duty to the person injured,
or unless he becomes liable because of the nature of the
instrumentality entrusted to the servant * * *, he is not liable for
s
113 A.2d 549, 551 (Pa. 1955) (citations modified).2
As Pennsylvania courts have come to rely more heavily, or at least
forth the inquiry regarding the scope of employment as follows:
In certain circumstances, liability of the employer may also
extend to intentional or criminal acts committed by the
employee. 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.
Costa, 708 A.2d at 493 (citing, inter alia, Restatement (Second) of Agency
§ 228) (citations and internal quotation marks omitted).
The trial court in this case relied solely upon Howard v. Zaney Bar,
85 A.2d 401 (Pa. 1952), and determined that the facts as set forth by
Spitsin in his complaint and the inferences to be drawn therefrom
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2
Since our Supreme Court cited the Restatement of Agency in Potter
Title, Pennsylvania courts have continued to cite that restatement and its
successor Restatement (Second) of Agency. Neither the respective rules
cited in Potter Title nor the quoted comments thereto changed materially
between the first and second restatements.
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whimsical that,
employment to an extent excusing WGM from all liability. That is to say, the
trial court effectively concluded that the instant case was more akin to the
ener gunning down a trespassing
child than its counterexample of the same gardener chasing the child off
with a stick.
Howard illustrates half of the gun
versus stick dichotomy. Our Supreme Court explained the underlying factual
history of that case as follows:
[I]n the early hours of the morning the plaintiff a regular
customer of this bar room entered the premises and consorted
ho was behind the bar said to
reached under the counter and pulled a pistol out * * * he shot
at me. The bullet went through my little finger and into my
** ...
85 A.2d at 402 (modifications and punctuation in original). In that case,
or judgment notwithstanding the verdict upon the basis
duties include maintaining order within his establishment, the trial court
reasonable means to
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Id. (emphasis in original). However, in
fo
that vicarious liability could not lie, notwithstanding the contrary findings of
the jury. Id.
Here, the trial court found Howard controlling because the
confrontation arose when Johnson confronted Spitsin to collect the fare.
in Howard ble means to
Id.
However, when [Johnson] punched and kicked [Spitsin] while he
was being held on the ground by another person, unable to
defend himself, [Johnson] departed from the scope of his
employment. We cannot say that punching and kicking
customers is a reasonable method of collecting a cab fare.
Id. In further support of its conclusion, the trial court cited the hairline
fra
so excessive and dangerous that they [were] without responsibility or
Id.
Spitsin contends that other cases more closely resemble the instant
case, and compel reversal. In McClung v. Dearborne, 19 A. 698
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(Pa. 1890), for example, our Supreme Court held that an employer was
been tasked with repossessing a cabinet organ from a client for
nonpayment, physically assaulted the client, despite the fact that the
employer instructed the employees not to assault anyone or violate the law.
See also McLaughlin v. Singer Sewing Machine Co., 75 Pa. Super. 533
(1920) (upholding vicarious liability in similar repossession case). Moreover,
Spitsin notes that, in Straiton v. Rosinsky, 133 A.2d 257
(Pa. Super. 1957), a movie theater was held vicariously liable when one of
its ushers struck a twelve-year-old patron with a flashlight, causing a
front of him during a film. When the usher approached and demanded that
the boy lower his knees and indicated that he would take the boy to see the
manager, the child volunteered to accompany the usher and proceeded
toward the theater exit. At some point during the interaction, the usher
struck the boy from behind.
WGM argues that McClung and McLaughlin are distinguishable from
the instant case. In those cases, in affirmatively dispatching employees to
carry the risk that those employees will be met with violence and will have
to counter with violence to ca
WGM at 4. WGM asserts without substantiation that collecting a cab fare is
inherently a less dangerous enterprise than repossession. WGM seeks also
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to distinguish Straiton
totally devoid of responsibility or reason as the alleged actions of [Johnson]
in the present case, who repeatedly kicked and punched a restrained
Id.
have merit, and resolving the question
presented is complicated by the fact that none of the above-cited cases are
entirely on-point in their factual particulars or in their procedural posture;
none of them involve violence committed against a restrained person, and
none were decided as a matter of law on preliminary objections. Indeed, we
have found no Pennsylvania case presenting this sort of claim that was
decided on preliminary objections.
as
excessive, made doubly so by the fact that Spitsin was fully restrained at the
time. At the same time, it seems plain that the conduct here at issue falls
somewhere in the spectrum between the outrageous use of a firearm in
Howard exacerbated by the fact that the disorder that allegedly prompted
the violence was so minor and the more modest, albeit contextually
excessive, violence exercised in Straiton in direct connection with the
to these
cases, and others further inform our inquiry.
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Interestingly, a substantial volume of prior Pennsylvania precedent
involves injuries to children.3 In McMaster v. Reale, 110 A.2d 831
(Pa. Super. 1955), for example, the question presented concer
liability for the acts of their foreman. The foreman in question allegedly had
kicked and struck a minor in the face for entering a closed worksite and
but a defense verdict as to the partners. The trial court declined to enter
partnership defendants. We affirmed. In so doing, however, we deferred to
the jury, noting that the evidence presented was consistent both with a
hypothetical finding that the foreman had acted within the scope of
Id. at 832. Our
deference to the jury in that case necessarily distinguishes it from the case
at bar.
We must note that there appears to be at least a faint indication that,
-twentieth century adoption of aspects of the
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3
Indeed, the sheer volume of Pennsylvania cases involving Dickensian
narratives, in which grizzled employees dispatched youthful stowaways from
moving conveyances with tragic results, is astounding. See Brennan, 54 A.
at 893 (finding vicarious liability for injuries sustained when a carriage driver
whip, and collecting similar cases); Collins v. Rosenberg, 161 A. 580, 582
(Pa. Super. 1932) (collecting still more similar cases).
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actions of rogue employees was diminished. Compare, e.g., McLaughlin,
75 Pa. Super. at 536 (upholding employer liability merely because the acts
were in furtherance of their orders to repossess a sewing machine, because,
ess
Collins, 161 A. at 582 (reviewing
with Costa, 708 A.2d at 493 (citing the modern formulation
that vicarious liability will not lie when the use or degree of force is not
McMaster,
supra. Viewed in that light, cases such as McClung and McLaughlin, in
predictable risk of violence, rendered the employers to some extent
complicit in the potentially violent results of forcible repossession, the
instant case is distinguishable and, thus, the result not inconsistent with
those earlier cases.
In this case, it is fair to say, questions remain regarding whether fare
ified responsibilities.4 And
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4
No one can dispute that the driver of a car for hire typically is
expected to collect the specified fare for a given trip. However, we do not
e
than ask for the fare, nor do we know whether (or how) Johnson was
(Footnote Continued Next Page)
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that arguably raises questions of fact as to what direction or training
Johnson received with regard to addressing a situation in which a passenger
is recalcitrant about paying the fee. If Johnson received any such guidance,
authorized or implied the authorization of the use of force, and, if so, what
degree of force. In a closer case, i.e., one lacking the brutality at issue in
this case, the case might well be unfit for resolution as a matter of law. But
the facts as pleaded in this case require a different result.
In the instant matter, Spitsin pleaded the following facts, to which he
is bound: Spitsin did not pay his fare; he attempted to flee when confronted
about paying his fare; and he was restrained by a bystander at the time that
Johnson allegedly kicked and punched him in the face repeatedly. Thus,
granting preliminary objections, he was restrained before Johnson attacked.
with respect to fare collection; there is no allegation that any affirmative act
by WGM led Johnson to act so brutally toward Spitsin. The pleading contains
fare-collection responsibilities, however characterized, extended even to the
sort of excessive and punitive brutality inflicted by Johnson on Spitsin.
_______________________
(Footnote Continued)
directed to undertake (or abandon) efforts at collection if the fare were to
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Sp
justified an inference by Johnson, whether reasonable or unreasonable, that
such behavior was viewed as appropriate by WGM.
reasonably in furtherance of recovering the fare that Spitsin owed Johnson
interrupted by a bystander, and nothing in the complaint suggests that the
to take control of the situation.
The inference is clear: Physical violence in such extreme measure, if
importantly, given the procedural posture of the case and Pennsylvania
-finding in related cases, even if
discovery were to demonstrate that Johnson was trained or encouraged by
WGM to persist when necessary to collect fares from recalcitrant passengers,
the force that Johnson employed was utterly excessive and unnecessary
under these circumstances. Ultimately, unless WGM explicitly instructed its
drivers to attack restrained and vulnerable passengers who refused to
Fitzgerald,
410 A.2d at 1272.
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Even if WGM authorized or directed the use of some force or restraint
grossly disproportionate to the responsibility at hand
Agency §§ 228(a)(1), (2). To such effect, the Restatement of Agency offers
the following elaboration on the salient principle:
Although an act is a means of accomplishing an authorized
result, it may be done in so outrageous or whimsical a manner
that it is not within the scope of employment, An assault by one
employed to recapture a chattel, while entirely different from the
act which he was employed to do, which was merely to take
possession of the chattel, may be within the scope of
employment, unless committed with such violence that it
bears no relation to the simple aggression which was
reasonably foreseeable.
Id. § 229 cmt. b. This case presents a scenario that tracks closely the
fares, not necessarily to pursue those who attempted to flee without paying
and take payment by brute force. Nonetheless, it might fairly be deemed
reasonably foreseeable that some degree of violence could occur in tandem
ing that is
that it [bore] no relation to the simple aggression which was reasonably
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such an event.
In sum, the force employed by Johnson as characterized by Spitsin
himself cannot fairly be said to have occurred within the scope of
See Fitzgerald, supra. Consequently,
the trial court did not err in finding as a matter of law that Spitsin had failed
to state a claim upon which relief could be granted for vicarious liability
against WGM.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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