Opinion
20 C.D. 2023
11-17-2023
Antwyne Whaley, Appellant v. School District of Philadelphia, Lewis Elkins Elementary School, Charlotte Gillum Maddox, Franklin Hinton, City of Philadelphia Department of Human Services, Tyrie Sealy and Christopher Li
OPINION NOT REPORTED
Submitted: October 10, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
RENÉE COHN JUBELIRER, PRESIDENT JUDGE
Antwyne Whaley appeals, pro se, from the Orders of the Court of Common Pleas of Philadelphia County (trial court) dated September 9, 2022 that sustained the preliminary objections (POs) of Appellees School District of Philadelphia (District), Lewis Elkin Elementary School (School), School's principal Charlotte Gillum Maddox (Principal) and a School counselor Franklin Hinton (Counselor) (collectively, District Appellees), the City of Philadelphia Department of Human Services (DHS), and DHS employees Tyrie Sealy and Christopher Li (collectively, City Appellees). The trial court then dismissed with prejudice Mr. Whaley's pro se Complaint, which asserted that the individual appellees defamed Mr. Whaley and that their employers were vicariously liable for those actions. On appeal, Mr. Whaley argues the trial court abused its discretion in dismissing the Complaint without, sua sponte, granting him leave to amend. Upon review, we affirm.
I. THE COMPLAINT AND POS
On April 12, 2022, Mr. Whaley filed the Complaint alleging as follows. Mr. Whaley's five-year old son (Son) is a student at the School. (Complaint (Compl.) ¶¶ 2, 6, 9.) In April 2021, Son logged onto his school computer to perform online schooling and spoke with Counselor as part of the School's "check in check out" program. (Id. ¶ 6.) During their interaction, Counselor inquired as to why Son had not come to school that day, and Son responded that he had been playing with a friend, fell off his bed, and hit his face. (Id. ¶¶ 6-7.) Mr. Whaley overheard the conversation, moved into view, and explained the situation to Counselor, who was not satisfied with the explanation. (Id. ¶ 7.) Mr. Whaley "asked [Counselor] why was he interrogating [Son] and [Mr. Whaley] explained to [Counselor] that [Mr. Whaley] was present during the entire time [Counselor] was forcing [Son] to change [Son's] stance regarding what took place." (Id.) Mr. Whaley heard Counselor repeatedly asking Son if that was what had happened, Son responded yes, but Counselor was not satisfied and continued to "interrogat[e]" Son, "putting [Son] in a very uncomfortable position." (Id. ¶ 8.) Notwithstanding that Counselor had no medical responsibilities or duties at the School, Counselor "performed a medical evaluation on . . . . [S]on . . . over a computer screen and made his own determination that there was or is currently some form of child neglect." (Id. ¶ 9.) Counselor filed a report of suspected child abuse or neglect to DHS and, in doing so, "over[]stepped his employment boundaries [] which has caused [Mr. Whaley] civil injuries," because those allegations were "acts of [d]efamation, [l]ibel and [s]lander," particularly where Mr. Whaley and Son explained why Son was not at school. (Id.)
The Complaint is item 1 in the Original Record.
Mr. Sealy, a DHS employee, visited Mr. Whaley's home on April 11, 2021, and left a letter stating, "A visit was made regarding allegations of inadequate supervision" and that an "agent want[ed] to discuss the care and supervision of the children in [the] home." (Id. ¶ 10.) Over the next two days, Mr. Li, also a DHS employee, visited Mr. Whaley's home and left letters indicating, first, that he had been assigned to investigate the wellbeing and safety of children in the home, and second, "that court actions would be placed on [Mr. Whaley] if [he] didn't call a phone number that was in [the] letter." (Id. ¶¶ 11-12.)
Mr. Whaley messaged Principal on April 14, 2021, using a classroom app to discuss the allegations reported to DHS. (Id. ¶ 13.) The next day, Mr. Whaley sent another message requesting Principal remove Son from the "check in check out" program, which Principal did. (Id. ¶ 14 (emphasis omitted).) On April 16, 2021, Mr. Whaley contacted the District, both by phone and email, to file a complaint about what occurred. (Id. ¶¶ 15-16.) Principal subsequently contacted Mr. Whaley on April 19, 2021, stating she had received his complaint and inquiring whether Mr. Whaley wanted to discuss the matter. (Id. ¶ 17.) On April 20, 2021, Mr. Whaley asked Principal for a copy of the report sent to DHS, and, after inquiring if she could provide the report, Principal stated she could not but would meet with him. (Id. ¶¶ 18-21.) Mr. Whaley responded he believed he should be able to view the documents because he had the right to defend against the accusations and requested further information about meeting. (Id. ¶¶ 22-23.) Although provided information to meet online with Principal, Mr. Whaley ultimately advised that he was uncomfortable meeting with Principal or School staff without a third party present. (Id. ¶¶ 23-26.) Principal later contacted Mr. Whaley on May 6, 2021, informing him that Son had "won a bike for attendance," which Mr. Whaley believed was a bribe being offered due to the "civil injuries" caused to his family. (Id. ¶¶ 27-28.)
Based on these alleged facts, Mr. Whaley asserted two counts in the Complaint. Count I asserted a claim for "Libel & Slander" based on Counselor's false and baseless report to DHS which Mr. Whaley averred was made with an intent to harm his family. (Id. ¶ 38(a)-(b).) As to Mr. Sealy and Mr. Li, Mr. Whaley claimed they came to investigate, and Mr. Li indicated that the report stated "that [Son] had a lump on the side of his head the size of a baseball" and "was informed that [Son] was in such bad shape that [he] would likely need to be removed from the home," even though Mr. Li saw Son twice and there was nothing to support the allegations. (Id. ¶ 38(f).) Finally, Mr. Whaley indicated that Principal "tried to minimize this incident by justifying [Counselor's] actions" and claimed Principal's "offer[ing] [Son] a bi[ke] during the time of this incident was clearly bribery which is a crime." (Id. ¶ 38(g).) Count II asserted "Master/Servant/Vicarious Liability" against the District, School, and DHS for the actions of their respective employees. (Id. ¶¶ 39-40.) According to Mr. Whaley, although he requested the report from another District employee, he never received a response, and his request to DHS for documentation regarding completed documentation of the investigation went unsatisfied. (Id. ¶ 41.)
As a result of these actions, Mr. Whaley alleged he "sustained extreme embarrassment, humiliation, [and] loss of the enjoyment of his usual life's pleasures and activities, to his great detriment and loss, some or all of which may be permanent in nature." (Id. ¶ 42.) Further, Mr. Whaley claimed he suffered "emotional distress, pain and suffering and may continue to suffer same for an indefinite time in the future, some or all of which may be permanent in nature." (Id. ¶ 43.) As relief, Mr. Whaley sought damages in excess of $50,000 and other relief the trial court might deem appropriate. (Compl., Wherefore Clause.)
Both District Appellees and City Appellees filed POs and memoranda of law in support thereof. District Appellees filed demurrers based on governmental or official immunity pursuant to Sections 8541, 8542, 8545, and 8546 of the Judicial Code, 42 Pa.C.S. §§ 8541-8542, 8545-8546, and immunity pursuant to Section 6318 of the Child Protective Services Law (CPSL), 23 Pa.C.S. § 6318. (District Appellees' POs ¶¶ 25-26, 28-30.) Additionally, District Appellees asserted that, because Mr. Whaley alleged an intentional tort, it was immune from suit. District Appellees maintained the Complaint could not be amended to state a cause of action from which they would not be immune and, therefore, the Complaint should be dismissed with prejudice. (District Appellees' POs ¶¶ 27, 31.) District Appellees also demurred as to Principal because there were no specific counts against her and, therefore, the Complaint against her had to be dismissed with prejudice. (District Appellees' POs ¶ 32.) Finally, District Appellees asserted that the Complaint was not properly served on any of them as required by Pennsylvania Rule of Civil Procedure (Civil Rule) 400.1, Pa.R.Civ.P. 400.1. (Id. ¶¶ 33-41.)
These POs are, respectively, items 12 and 13 of the Original Record.
Sections 8541 and 8542 of the Judicial Code relate to governmental immunity. Section 8541 provides that "[e]xcept as otherwise provided in this subchapter, 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 or any other person." 42 Pa.C.S. § 8541. Section 8542 addresses situations where governmental immunity is waived. Section 8542(a) states that
[a] local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b).
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury [was] caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, "negligent acts" shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.42 Pa.C.S. § 8542(a). The nine categories that can give rise to liability are: vehicle liability; care, custody, or control of personal property; real property; trees, traffic controls, and street lighting; utility service facilities; streets; sidewalks; care custody, or control of animals; and sexual abuse. 42 Pa.C.S. § 8542(b).
Sections 8545 and 8546 of the Judicial Code address the immunity available to local agency employees. Section 8545 states that such employees are "liable for civil damages on account of any injury to a person . . . caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter." 42 Pa.C.S. § 8545. Section 8546 provides that
[i]n any action brought against an employee of a local agency for damages on account of an injury to a person or property based upon claims arising from, or reasonably related to, the office or the performance of the duties of the employee, the employee may assert on his own behalf, or the local agency may assert on his behalf:
(1) Defenses which are available at common law to the employee.
(2) The defense that the conduct of the employee which gave rise to the claim was authorized or required by law, or that he in good faith reasonably believed the conduct was authorized or required by law.
(3) The defense that the act of the employee which gave rise to the claim was within the policymaking discretion granted to the employee by law. For purposes of this subsection, all acts of members of the governing body of a local agency or of the chief executive officer thereof are deemed to be within the policymaking discretion granted to such person by law.42 Pa.C.S. § 8546.
Section 6318(a)(1) of the CPSL states: "A . . . school, . . . agency or agency employee acting in good faith shall have immunity from civil and criminal liability that might otherwise result from any of the following:" "[m]aking a report of suspected child abuse . . . regardless of whether the report is required to be made under this chapter." 23 Pa.C.S. § 6318(a)(1). Pursuant to subsection (c), "[f]or the purpose of any civil or criminal proceeding, the good faith of a person required to report pursuant to [S]ection 6311 (relating to persons required to report suspected child abuse[, which includes school employees, 23 Pa.C.S. § 6311(a)(4)]) . . . shall be presumed." 23 Pa.C.S § 6318(c).
City Appellees asserted a demurrer, maintaining that the Complaint failed to state a claim for defamation because nothing in the Complaint reflected that either Mr. Li or Mr. Sealy communicated the alleged defamatory statements to a third party. (City Appellees' POs ¶¶ 16-25.) They further asserted they are entitled to governmental and official immunity. (Id. ¶¶ 27-32.) City Appellees also maintained the claims are barred by the statute of limitations because the Complaint was filed one day after one year of when the alleged defamatory statements occurred. (Id. ¶¶ 34-41.) Last, City Appellees asserted that the Complaint was improperly served on DHS and Mr. Li. (Id. at 7-8.)
City Appellees' POs in this regard are numbered 1 through 8 for these averments and, for ease, we refer to the page numbers of the POs instead of by paragraph.
Mr. Whaley filed separate answers and memoranda of law to the Pos. Therein, Mr. Whaley responded to District Appellees' POs, asserting that service of the Complaint was made in good faith, Principal was "a co-conspirator" with Counselor, and there could be no immunity because Counselor's allegations were harmful and not made in good faith. (Mr. Whaley's Response/Objections to District Appellees' POs at 1-6.) In his response to City Appellees' POs, Mr. Whaley asserted additional factual claims than in the Complaint about his discussions with Mr. Li. (Mr. Whaley's Response to City Appellees' POs ¶¶ 12-14.) As to the demurrer for failure to state a claim for defamation, Mr. Whaley argued the "harsh statements" of Mr. Sealy and Mr. Li were sufficient, and that it was DHS that was the third party to which Counselor's defamatory statements were made, and a third party was present at one of the interviews. (Id. ¶¶ 19-21, 24.) On immunity, Mr. Whaley argued that Counselor's willful misconduct should be imputed to City Appellees, Mr. Li and Mr. Sealy both falsely accused Mr. Whaley of child abuse, and immunity is "void" as a result of these false statements. (Id. ¶¶ 26-27, 32.) Mr. Whaley asserted the Complaint was not barred by the statute of limitations as the last communication occurred on April 13, 2021, which was less than a year from the filing of the Complaint. (Id. ¶¶ 35-39, 41.) Finally, Mr. Whaley contended that service was proper because it was performed by a competent adult, it was made in good faith, and Mr. Sealy took the Complaints for DHS and Mr. Li from the process server. (Id. at 7-8.) In neither of his responses to the POs did Mr. Whaley ask for the opportunity to amend the Complaint.
Mr. Whaley's responses are items 15 and 17 of the Original Record.
Mr. Whaley used the paragraph numbers used by City Appellees in their POs, and, therefore, we similarly reference the page numbers in Mr. Whaley's response in lieu of the paragraph numbers.
City Appellees filed a response. Therein, they indicated that Mr. Whaley admitted that the defamation claim was based on Counselor's actions, not actions by Mr. Li and Mr. Sealy; that the defamatory statement occurred on April 11, 2021, making the action time barred; and that service as to DHS and Mr. Li was deficient. (City Appellees' Reply in Support of their POs at 1-4.)
City Appellees' response is item 18 in the Original Record.
II. TRIAL COURT'S DETERMINATIONS
After considering the parties' POs and responses, the trial court issued two orders dated September 9, 2022, which were docketed on September 14, 2022. In one, the trial court sustained District Appellees' POs "based upon [Mr. Whaley's] failure to state a cause of action under 42 Pa.C.S. [] §[§] 8541[-8564] and improper service of [the] Complaint." (Trial Ct. Sept. 9, 2022 Order Regarding District Appellees.) The trial court, therefore, dismissed the claims against District Appellees with prejudice, and emphasized that these were the "only" claims being so dismissed. (Id. (emphasis in original).) In the second order, the trial court sustained City Appellees' POs and dismissed the Complaint as to them with prejudice. (Trial Ct. Sept. 9, 2022 Order Regarding City Appellees.)
The trial court's orders are items 21 and 22 in the Original Record.
Mr. Whaley filed a timely Notice of Appeal. On February 27, 2023, the trial court authored an opinion explaining its reasoning for sustaining the POs and dismissing the Complaint with prejudice. Therein, the trial court reasoned that because all defendants had "several sources of immunity from [Mr. Whaley's] claims, it would be futile . . . to grant [Mr. Whaley] leave to file an amended complaint." (Trial Ct. Opinion at 4, 8.)
Mr. Whaley originally sought to appeal to the Superior Court. District Appellees filed an application to transfer, which the Superior Court granted.
III. DISCUSSION
On appeal, Mr. Whaley does not challenge the trial court's decision to sustain the POs or the rationale thereof, but argues the trial court abused its discretion in dismissing the Complaint without granting him leave to amend. According to Mr. Whaley, granting him leave to amend would not be futile because "he had multiple claims and evidence to amend [the C]omplaint," including "Monell claims, [s]ubstantive and [p]rocedural [d]ue [p]rocess violations, [and] failure to train employees on mandatory reporting." (Mr. Whaley's Brief (Br.) at 8, 10-13.) According to Mr. Whaley, there are situations where immunity does not protect child care or case workers from all claims and now asserts that Counselor and Mr. Li acted in bad faith. (Id. at 13 (citing B.S. v. Somerset County, 704 F.3d 250 (3d Cir. 2013) (discussing absolute immunity and some limitations on that immunity in a case involving social workers under 42 U.S.C. § 1983)).) Mr. Whaley points out that, in Balletta v. Spadoni, 47 A.3d 183 (Pa. Cmwlth. 2012), the plaintiffs were given multiple chances to amend their complaint before it was dismissed with prejudice, and he did not even get one. (Id. at 9.)
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978).
District Appellees argue Mr. Whaley "has not challenged the trial court's holding that [Counselor] and [Principal] were entitled to official immunity." (District Appellees' Br. at 24.) On the issue of amendment, they assert that, upon receipt of their POs, Mr. Whaley did not avail himself of the opportunity to amend the Complaint to add facts or theories of liability, which would be permitted as of course under the Pennsylvania Rules of Civil Procedure. (District Appellees' Br. at 8-9.) Nor, District Appellees argue, did Mr. Whaley ask in his reply to the POs for the opportunity to amend the Complaint if the trial court found the POs meritorious and, therefore, he has waived his right to argue on appeal that a decision not to allow amendment was an abuse of discretion. (Id. at 12-15.) Further, to the extent Mr. Whaley now asserts that Counselor acted in "bad faith" thereby obviating the availability of immunity, he cannot, District Appellees argue, plead facts that can demonstrate "bad faith" as that term has been interpreted by the courts. (Id. at 20-21, 23-24.) As for the new claims Mr. Whaley contends he could have added to the Complaint had the trial court granted leave to amend, the District Appellees assert Mr. Whaley has not and cannot plead facts that would support those claims and, therefore, amendment would be futile. (Id. at 25-32.)
City Appellees respond the trial court did not err in sustaining their POs based on immunity or abuse its discretion in not allowing Mr. Whaley to amend the Complaint. They observe that instead of arguing that the trial court erred in sustaining the POs based on immunity, Mr. Whaley seeks to amend the Complaint based on "entirely different . . . theor[ies] of liability," based on alleged constitutional violations, that he asserts for the first time in his appellate brief and for which there is no support in the Complaint's factual allegations. (City Appellees' Br. at 7, 10-11, 14-16.) City Appellees assert that these new claims cannot be added on appeal and are otherwise without merit. (Id. at 14-16.)
We begin our analysis by emphasizing that Mr. Whaley does not challenge the trial court's decision to sustain District Appellees' and City Appellees' POs or the reasons given for doing so. Rather, he maintains that he should have been granted leave to amend the Complaint, and it was an abuse of discretion for the trial court not to do so because he could add new claims to the Complaint based on different theories of liability. Mr. Whaley does not assert that he requested, at any point, that he be given the opportunity to amend the Complaint following the filing of the POs. Thus, we limit our review to whether the trial court abused its discretion in not, sua sponte, granting Mr. Whaley leave to amend.
Amendments to complaints should be liberally allowed. Mistick Inc. v. City of Pittsburgh, 646 A.2d 642, 644 (Pa. Cmwlth. 1994). Rule 1028(c)(1) of the Civil Rules allows, following the filing of preliminary objections, the filing of "an amended pleading as of course within [20] days." Pa.R.Civ.P. 1028(c)(1). Rule 1033(a) of the Civil Rules similarly authorizes liberal amendment by allowing "[a] party, either by filed consent of the adverse party or by leave of court, [] at any time" to amend a pleading. Pa.R.Civ.P. 1033(a) (emphasis added). However, granting "[l]eave to amend lies within the sound discretion of the trial court." Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). In Werner, a petitioner argued to the Supreme Court that this Court, acting in its original jurisdiction, should have granted him leave to amend a petition for review after sustaining preliminary objections. Our Supreme Court held that the "petitioner's claim fail[ed] because he never requested that [this] Court allow him leave to amend," and the petitioner "fail[ed] to cite any case law, and we can find none, requiring a court to sua sponte order or require a party to amend his pleading." Id. (emphasis added). This Court has applied this principle repeatedly to reject assertions that a trial court has abused its discretion by not sua sponte granting leave to amend. Doe v. Franklin County, 139 A.3d 296, 319 (Pa. Cmwlth. 2016), rev'd on other grounds, 174 A.3d 593 (Pa. 2017); Brown v. Gee (Pa. Cmwlth., No. 1185 C.D. 2021, filed March 27, 2023), slip op. at 8-9; Rahman v. White Haven Ambulance (Pa. Cmwlth., No. 1574 C.D. 2017, filed Aug. 29, 2018), slip op. at 12; Smart v. Dep't of Corr. (Pa. Cmwlth., No. 631 C.D. 2017, filed June 27, 2018), slip op. at 15-16. The Superior Court similarly applies this principle, rejecting arguments that it is error for a trial court to not sua sponte grant leave to amend because, under Werner, "a plaintiff waives any request to amend the complaint by failing to raise it before the trial court." d'Happart v. First Commonwealth Bank, 282 A.3d 704, 737-38 (Pa. Super. 2022).
Unreported panel decisions of this Court may be cited as persuasive authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a).
"In general, Superior Court decisions are not binding on this Court, but they" may be considered persuasive where they address analogous issues. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
When the POs were filed, Mr. Whaley had the opportunity to file an amended complaint as of course, Pa.R.Civ.P. 1028(c)(1), but did not, choosing to rest on the allegations in the Complaint. Further, Mr. Whaley does not assert that he asked for leave to amend, and our review of the record finds no such request. Following the Supreme Court's decision in Werner, which both this Court and the Superior Court apply in similar fashions, we cannot conclude that the trial court abused its discretion in not, sua sponte, affording Mr. Whaley the opportunity to amend the Complaint.
The trial court's dismissal of the Complaint did not prejudice Mr. Whaley's ability to bring the constitutional claims under 42 U.S.C. § 1983, which are subject to a two-year statute of limitations. Burger v. Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997); Maxwell Downs, Inc. v. City of Philadelphia, 638 A.2d 473, 476 (Pa. Cmwlth. 1994).
Balletta does not require a different result. Although the plaintiffs in that case amended their complaint multiple times, it is unclear whether some of those amendments were as a matter of course or pursuant to a request by the plaintiffs to do so. Balletta, 47 A.3d at 188 n.1. In contrast, Mr. Whaley did not seek to amend the Complaint pursuant to Rule 1028(c)(1) or request that he be given the opportunity to do so. Thus, Balletta does not establish an abuse of discretion in the trial court not granting Mr. Whaley leave to amend sua sponte.
IV. CONCLUSION
Because Mr. Whaley did not request leave to amend the Complaint and the trial court had no legal obligation to sua sponte grant such relief, see, e.g., Werner, 681 A.2d at 1338, and because Mr. Whaley does not otherwise challenge the trial court's determinations, we discern no abuse of discretion in the trial court dismissing the Complaint without granting Mr. Whaley leave to amend. Accordingly, we affirm.
Although the allegations in the Complaint are serious and involve important rights, there is no ground on which we may reverse in these circumstances given the discretion afforded to the trial court. The mere fact that we might have permitted amendment given the gravity of Mr. Whaley's claims does not render the trial court's determination to the contrary an abuse of discretion. "An abuse of discretion occurs where in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will." Tullytown Borough v. Armstrong, 129 A.3d 619, 622 (Pa. Cmwlth. 2015) (citation omitted).
ORDER
NOW, November 17, 2023, the Orders of the Court of Common Pleas of Philadelphia County dated September 9, 2022, are AFFIRMED.