This is a tort action brought in diversity jurisdiction by Michelle Lampkin and her spouse against Louis A. Gappa ("Gappa") and Gappa Fuel Oil Company, Inc. ("Gappa Fuel"). Lampkin's initial complaint was dismissed without prejudice as to Gappa Fuel on March 31, 2011 (Docket Nos. 18, 19). The order of March 31, 2011, also dismissed without prejudice cross-claims for indemnity and contribution asserted by Gappa against Gappa Fuel. Lampkin subsequently filed an amended complaint (Docket No. 20), and Gappa again filed cross-claims against Gappa Fuel for indemnity and contribution (Docket No. 22).
Presently before the court are Gappa Fuel's motions to dismiss the amended complaint and to dismiss the cross-claims (Docket Nos. 21, 23). For the reasons that follow, the motions to dismiss will be granted in part and denied in part.
The operative factual allegations of the amended complaint are similar to those made in the initial complaint, which was described at length in this court's memorandum accompanying the March 31, 2011, order of dismissal.
Briefly, according to the amended complaint, Lampkin and Gappa are both children of Pauline Gappa, who is the President of Gappa Fuel. Gappa was the Secretary and Treasurer of Gappa Fuel and had operated the company for many years. "Defendant Gappa ran the business of Gappa Fuel, including having the responsibility of making all decisions for Gappa Fuel, hiring and firing employees, purchasing, selling and delivering fuel oil, and having control of the entire business operation of Defendant Gappa Fuel." Am. Compl. ¶ 12.
On July 22, 2008, Lampkin went to the offices of Gappa Fuel to discuss the company's business with Gappa. While in the offices of Gappa Fuel, Lampkin noticed an envelope addressed to her mother, Pauline Gappa. Pauline Gappa had given Lampkin power of attorney, and Lampkin attempted to take possession of the envelope. Gappa prevented her from taking the envelope; he also prevented Lampkin from leaving the office and attempted to prevent her from using the phone to call the police. In the ensuing struggle, Lampkin "was unintentionally caused to fall to the floor as a result of Defendant Gappa's conduct and Defendant Gappa landed on top of [Lampkin]." Am. Compl. ¶ 17. Lampkin alleges that she suffered significant injuries during the fight. She also alleges that Gappa was convicted of the criminal offense of false imprisonment in the Court of Common Pleas of Chester County, Pennsylvania, for his conduct.
The amended complaint seeks identical relief as the initial complaint: money damages against both defendants, premised on one count of common law false imprisonment and one count of negligence, plus a third count (on behalf of Lampkin's spouse) for loss of consortium.
A. Applicable Principles of Vicarious Liability
As explained in the memorandum accompanying the March 31, 2011, order dismissing the complaint for failure to state a claim, Fed. R. Civ. P. 12(b)(6), Lampkin's initial pleading failed to allege any plausible basis for holding Gappa Fuel vicariously liable under Pennsylvania law for the allegedly tortious conduct of its employee, Gappa.*fn1
The applicable principles of vicarious liability were explained as follows:
In Pennsylvania, an employer may be held liable for the torts of its employees only if that conduct falls within the servant's scope of employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir. 1979). This rule applies to intentional as well as negligent conduct. Costa v. Roxborough Mem. Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998).
To determine if conduct is within the scope of employment, Pennsylvania courts follow § 228 of the Restatement (Second) of Agency. Id. Section 228 states that "[c]onduct 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 force is not unexpect[ed] by the master."
Mem. of Mar. 31, 2011, at 3-4 (Docket No. 18). The initial complaint failed to allege any facts to suggest that Gappa's false imprisonment of Lampkin was the sort of conduct he was employed to perform or that the intentional use of force to accomplish that imprisonment was expected by his employer, Gappa Fuel. The initial complaint also failed to allege any grounds to support a claim ...