Opinion
No. 249 C.D. 2014 No. 250 C.D. 2014 No. 251 C.D. 2014
04-17-2015
Joseph T. Leis, Appellant v. David Mosesso, H. Charles Wilson, III and Towamencin Township
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
This case was reassigned to the author on October 28, 2014.
Joseph T. Leis (Leis) appeals from the January 8, 2014, orders of the Court of Common Pleas of Montgomery County (trial court), which dismissed Leis's second amended complaint (Complaint) and sustained the preliminary objections filed by David J. Mosesso (Mosesso), H. Charles Wilson, III (Wilson) (together "defendant Supervisors"), and Towamencin Township (Township) (collectively, "Defendants").
The trial court entered a separate order as to each Defendant. The three cases were consolidated on appeal.
In December 2012, the Township Board of Supervisors (Board), which included the defendant Supervisors, voted to terminate Leis's employment with the Township as its Director of Community Planning. On January 11, 2013, the Township and Leis entered into a Confidential Employee Separation Agreement and General Release (Agreement), which contains the following provision:
All parties agree that, at all times hereafter, the facts relating to the existence, terms and conditions of this Agreement and the allegations in this matter will be kept confidential and will not be disclosed voluntarily to any third party, except to the extent required by law, to enforce this Agreement, or to obtain confidential legal, tax, or insurance advice with respect thereto. All parties further agree to refrain from disparaging each other in any fashion and to that end they will decline to comment to any third party regarding each other, provided, however, that either party may give sworn testimony about the other party if required or compelled to do so in a legal action or proceeding.(Compl., Ex. A (emphases added).)
At a public meeting on January 23, 2013, the Board approved the Agreement by a three-to-two vote, over the objections of the defendant Supervisors. Following the meeting, a news reporter approached the defendant Supervisors for comment about Leis's termination. The reporter's article, titled "Two Towamencin Supervisors Oppose Severance Package to Two Dismissed Employees," appeared online on January 25, 2013, and included the following excerpts:
Supervisors Chuck Wilson and David Mosesso [defendant Supervisors] both voted against the [A]greement at the Jan. 23 public meeting.
In an email received Friday morning, Wilson wrote that he opposed the measure. He says he thought the severance packages for both employees 'were excessive compared to the norm in the private sector.' In the same
email, Wilson confirmed the identity of those dismissed employees as Joe Leis—who served as the township's director of community planning— . . . .(Compl., Ex. B.)
Mosesso said that since both [men] were dismissed for cause, he didn't think they should get the severance.
'In my working life, I have never seen employees, who were dismissed for cause, receive this kind of compensation,' he said.
Wilson declined to comment further on the situation, citing the item as a personnel issue.
* * *
According to Mosesso, both employees will be permitted to receive unemployment insurance despite their 'substantial' severance packages.
'It makes me upset,' said the supervisor, who declined to disclose the severance amount.
The next day, the same article appeared in print with the title, "Officials Oppose Payments to Dismissed Employees." (Compl., Ex. B.)
On May 8, 2013, Leis filed suit against the defendant Supervisors for defamation, business and trade disparagement, invasion of privacy, tortious interference with contract, and tortious interference with prospective contractual relationships and against the Township for breach of contract. Specifically, Leis alleged that the defendant Supervisors' comments were defamatory, violated the Agreement's confidentiality and non-disparagement provisions, and interfered with his ability to find new employment. Leis also sued the Township for, inter alia, Breach of Contract predicated upon the defamatory statements made by the defendant Supervisors.
Defendants filed preliminary objections to the Complaint, asserting that the defendant Supervisors are immune from suit under the high public official immunity doctrine and that the Township is immune from suit under section 8541 of the Judicial Code, 42 Pa. C.S. §8541, commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act). After briefing and argument, the trial court sustained Defendants' preliminary objections and dismissed the Complaint against all Defendants with prejudice. Leis now appeals from that those orders.
Section 8541 of the Tort Claims Act provides that "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof." 42 Pa. C.S. §8541.
Our review of a trial court order dismissing a complaint based on preliminary objections is limited to determining whether the trial court committed an error of law or abused its discretion. Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).
Claims Against the Defendant Supervisors
First, Leis argues that the trial court erred in dismissing his tort claims against the defendant Supervisors based on high public official immunity. Our Court has explained this doctrine as follows:
'[T]he doctrine of absolute privilege for high public officials . . . is unlimited and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the
official's duties or powers and within the scope of his authority . . . .'Stackhouse v. Pennsylvania State Police, 892 A.2d 54, 59 n.4 (Pa. Cmwlth. 2006) (quoting Lindner v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996)); see Durham v. McElynn, 772 A.2d 68, 69 (Pa. 2001) (noting that high public official immunity is a common law doctrine that preceded the Tort Claims Act and was not abrogated by it). In determining whether a public official acted within the scope of his or her official duties, courts consider: (1) the formality of the forum in which the alleged defamatory statements were made; and (2) the relationship of the legitimate subject of governmental concern to the individual seeking damages. Osiris Enterprises v. Borough of Whitehall, 877 A.2d 560, 568 (Pa. Cmwlth. 2005).
Leis concedes that, as municipal supervisors, the defendant Supervisors are high public officials. See Jonnet v. Bodick, 244 A.2d 751, 753 (Pa. 1968) (holding that municipal supervisors are high public officials for purposes of immunity). Leis claims, however, that the defendant Supervisors made disparaging remarks outside the scope of their official duties and, therefore, they are not immune from suit. This Court must disagree.
Leis alleged, inter alia, that Mosesso told the reporter that Leis was fired "for not doing [his] job," (Compl. ¶ 23), and his counsel argued this point fervently at oral argument. However, neither news article appended to the Complaint contains this quote. At the trial court hearing, Leis's counsel acknowledged that he failed to submit the article containing this quote to the court. (N.T., 12/6/13, at 12-13.)
A newspaper reporter asked the defendant Supervisors for comment on Leis's termination after the January 23, 2013, public meeting. The defendant Supervisors offered the comments to explain their reasons for voting against Leis's separation agreement. Leis claims that the high public official immunity doctrine is inapplicable here because the defendant Supervisors made the statements outside of an official meeting. However, our courts have applied high public official immunity to public officials' statements made outside of a meeting. See, e.g., Montgomery v. City of Philadelphia, 140 A.2d 100, 101, 105 (Pa. 1958) (holding that city officials' statements to a reporter that the plaintiff's building was faultily constructed and not in conformity with building plans were "absolutely privileged" because they were made "within the scope of [the officials'] duties and authority"); Suppan v. Kratzer, 660 A.2d 226, 229-31 (Pa. Cmwlth. 1995) (upholding the dismissal of defamation claims against a mayor and a council president who told police officers that an applicant for a borough police job had "flunked a psychological exam," noting that the mayor and council president may comment on an applicants' qualifications for borough employment); see also Smith v. Borough of Dunmore, 633 F.3d 176, 177, 181-82 (3d Cir. 2011) (holding that a borough council member's disclosure to the newspaper of a letter stating that a fire captain had been suspended for failing to complete fire academy training was protected by high public official immunity).
Furthermore, the defendant Supervisors' comments that Leis's severance package was "excessive" and "substantial" were closely related to their duty to oversee the public fisc. The defendant Supervisors expressed their collective belief that the severance package was an excessive expenditure of township funds. As the trial court found, the defendant Supervisors' explanations of the reasons for their votes to their constituents go directly to the heart of their duties as elected officials. Because we conclude that the defendant Supervisors acted within the scope of their official duties when their remarks were made to the press, the high public official immunity doctrine applies. Thus, the trial court properly dismissed the Complaint as to the defendant Supervisors.
Claims Against the Township
Next, Leis argues that the trial court erred in dismissing his breach of contract claim against the Township. Specifically, Leis claims that the Township, via the acts of defendant Supervisors violated the Agreement's confidentiality and non-disparagement provisions and that he suffered pecuniary loss. The Township's liability is based solely upon a relationship of employer/employee and upon the alleged defamatory statements of the defendant Supervisors.
First, the Complaint expressly stated that the allegedly false statements were made outside either individual's authority as a member of the Board, outside the scope of his official duties and outside the scope of his authority to speak or act on behalf of the Township. Second Amended Complaint, ¶¶27-31, and 34-35. Thus, to the extent that Leis is attempting to hold the Township liable for the defendant Supervisor's alleged divulgences and disparaging statements, the Township cannot be liable for the individual actions of its Supervisors which Leis avers were outside the scope of their authority.
More importantly, under Pennsylvania law, an action on a contract cannot be maintained against a person who is not a party to the contract unless the plaintiff is a third-party beneficiary of the contract, or the suit is for products liability or breach of warranty. State Public School Building Authority v. Noble C. Quandel, Co., 585 A.2d 1136 (Pa. Cmwlth. 1991). Here, neither of the defendant Supervisors were parties or signatories to the Agreement. Accordingly, Leis would have no claim for breach of contract against the defendant Supervisors. Further, as stated, Leis failed to state a cause of action against the defendant Supervisors. Unless a cause of action exists against the defendant Supervisors, the Township cannot be held liable. Skalos v. Higgins, 449 A.2d 601, 603 (Pa. Super. 1982) (Master cannot be held liable unless there is a cause of action against the servant...."); see also Mamalis v. Atlas Van Lines, Inc., 528 A.2d 198 (Pa. Super. 1987), aff'd, 560 A.2d 1380 (Pa. 1989). Because Leis's underlying claims for breach of contract fail against the defendant Supervisors, it necessarily follows that any claims for respondeat superior against Township must also fail. Accordingly, the trial court properly dismissed the Complaint as to the Township.
Based on the foregoing, the orders of the trial court are affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 17th day of April, 2015, the orders of the Court of Common Pleas of Montgomery County which sustained the preliminary objections filed by David Mosesso, H. Charles Wilson, III and Towamencin Township are hereby AFFIRMED.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully concur in part and dissent in part. While I agree with the majority's decision to affirm the dismissal of Leis's Complaint as to the defendant Supervisors, I disagree with its decision to affirm the dismissal of the Complaint as to the Township. Because I believe that Leis has stated a breach of contract claim against the Township, I would reverse that portion of the trial court's order.
The majority concludes that because Leis cannot state a breach of contract claim against the defendant Supervisors as non-signatories to the Agreement, his contract claim against the Township must also fail. However, it is well settled that "a corporation can only act through its officers, agents, and employees." Tayar v. Camelback Ski Corporation, Inc., 47 A.3d 1190, 1196 (Pa. 2012). Like a private corporation, a political subdivision "'can only act or carry out its duties through real people—its agents, servants or employees.'" Weatherly Area School District v. Whitewater Challengers, Inc., 616 A.2d 620, 621 (Pa. 1992) (citation omitted). Thus, "under the doctrine of vicarious liability, the corporation, not the employee, is liable for acts committed by the employee in the course of employment." Tayar, 47 A.3d at 1196; see Rinaldi v. Board of Vehicle Manufacturers, Dealers and Salespersons, 843 A.2d 418, 421 (Pa. Cmwlth. 2004).
The majority finds that because Leis alleges that the defendant Supervisors acted outside the scope of their authority with respect to the tort claims, he cannot allege that the Township is liable for the defendant Supervisors' conduct under a breach of contract theory. I disagree. Pa. R.C.P. No. 1020(c) expressly permits a plaintiff to plead causes of action in the alternative. As such, Leis's Complaint is not defective merely because the causes of action within it are inconsistent or conflicting. See Baron v. Bernstein, 106 A.2d 668, 669 (Pa. Super. 1954); see also Pennfield Corporation v. Meadow Valley Electric, Inc., 604 A.2d 1082, 1089-90 (Pa. Super. 1992) (noting that at the preliminary objection stage, it was immaterial whether the plaintiff alleged precisely the same facts against different defendants or whether such allegations conflicted).
Contract claims against a municipality are not barred by the Political Subdivision Tort Claims Act. See Department of Transportation v. Municipal Authority of the Borough of West View, 919 A.2d 343, 347 (Pa. Cmwlth.), aff'd, 936 A.2d 487 (Pa. 2007).
Here, in Count VII of the Complaint, Leis alleges that: (1) he entered into the Agreement with the Township; (2) the Agreement contains confidentiality and non-disparagement clauses; (3) the clauses are material terms of the Agreement; (4) the Township breached the Agreement through the acts of its employees, the defendant Supervisors; and (5) Leis suffered pecuniary loss as a result of the breach. (Compl. ¶¶ 126-137.) Contrary to the majority, I would conclude that Leis's Complaint sufficiently states a breach of contract claim against the Township so as to survive preliminary objections. Therefore, I would reverse the trial court's dismissal of Leis's Complaint as to the Township.
The majority concludes, and I agree, that under the facts alleged in the Complaint, the defendant Supervisors acted within the scope of their authority in making the alleged divulgences and disparaging statements, which further supports Leis's breach of contract claim against the Township. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge