Argued December 9, 2013.
Appealed from No. 09-16072. Common Pleas Court of the County of Berks. Rowley, J.
Claudia M. Tesoro, Senior Deputy Attorney General, Philadelphia, for appellants.
Eric E. Winter, Bechtelsville, for appellee.
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE BROBSON.
P. KEVIN BROBSON, Judge.
By Order dated June 19, 2013, we granted the petition of Appellants Raymond Guth (Guth) and Francis J. Barrett (Barrett) (collectively, Appellants), accepting for immediate appellate review an interlocutory order of the Court of Common Pleas of Berks County (trial court), which denied Appellants' motion for summary judgment as to the claims set forth in the Second Amended Complaint (Complaint) of Plaintiff/Appellee Timothy Schell (Schell). See Pa. R.A.P. 1311 and note. In doing so, we agreed to consider whether Schell's tort claims of malicious prosecution, defamation/false light, intentional infliction of emotional distress, and negligence against Appellants are barred by sovereign immunity. Because we conclude that neither the facts Schell alleges nor the evidence of record would support a finding that Guth and Barrett acted outside of the scope of their employment, Schell's tort claims are barred by sovereign immunity. We, therefore, will reverse the trial court's order and remand with instructions that the trial court enter judgment in favor of Appellants.
STANDARD OF REVIEW
This Court's standard of review of a denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Mason & Dixon Lines, Inc. v. Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370, 1372 n.2 (Pa. Cmwlth. 1994). Our scope of review is de novo when we consider questions of law. Weaver v. Lancaster Newspapers, Inc ., 592 Pa. 458, 465, 926 A.2d 899, 902-03 (2007). A court may grant a motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Farabaugh v. Pa. Tpk. Comm'n, 590 Pa. 46, 52, 911 A.2d 1264, 1267 n.3 (2006). The right to judgment must be clear and free from doubt. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (2005). In reviewing the denial of a motion for summary judgment, this Court must view " the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Id., 870 A.2d at 857.
On summary judgment, the moving party must demonstrate that there is no genuine issue of fact regarding any element of an issue for which the moving party bears the burden of proof at trial. See Limbach Co. v. City of Philadelphia, 905 A.2d 567, 572 n.7 (Pa. Cmwlth. 2006). In this case, Appellants, who raised the affirmative defense of sovereign immunity, had the burden as the moving party to show that there is no material issue of fact remaining relative to the " scope of employment" question. When the evidence on a particular factual question is such that a reasonable jury could return a verdict for the non-moving party, a material fact will be found to exist. See Taylor v. Jackson, 164 Pa.Cmwlth. 482, 643 A.2d 771, 776 (Pa. Cmwlth. 1994). When a moving party proffers evidence indicating that a certain fact exists, the
non-moving party must point to evidence in the record indicating that a conflict in the evidence warrants review by the fact finder. Myers v. Penn Traffic Co ., 414 Pa.Super. 181, 606 A.2d 926, 928 (Pa. Super. 1992), appeal denied, 533 Pa. 625, 620 A.2d 491 (1993). Also, " a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury." Lineberger v. Wyeth, 2006 PA Super 35, 894 A.2d 141, 146 (Pa. Super. 2006).
Here, Appellants moved for summary judgment following discovery. Appellants supported their motion with twenty-one exhibits, consisting of deposition testimony excerpts and exhibits. (Certified Record (C.R.) #19, Exhibit Binder.) Appellants also relied to a more limited extent on the parties' pleadings. Appellants' brief in support of their motion included a detailed statement of undisputed facts. ( Id., Brief in Support at 2-21.) In his brief in opposition, Schell mostly agreed with Appellants' statement. (C.R. #25, Brief in Opposition at 6.) To some extent, however, he relies on additional deposition testimony and averments in his Complaint to support his argument that the case should proceed to trial. See Pa. R.C.P. No. 1035.3(a) (providing that in responding to motion for summary judgment, " the adverse party may not rest upon the mere allegations or denials of the pleadings" ).
UNDISPUTED MATERIAL FACTS
Based on our review of the parties' papers in support and in opposition to summary judgment, the following material facts are undisputed.
Schell graduated from the Pennsylvania State Police (PSP) Academy on or about December 18, 1991, and, thereafter, served as a trooper with the PSP until his dismissal in January 2009. At the time of his dismissal, Schell had attained the rank of corporal and served as the Staff Unit Supervisor at the Reading Barracks of PSP, which is the headquarters for PSP Troop L. At no point in his career with PSP did Schell work in either a criminal investigations unit or internal affairs.
At all times relevant to the Complaint, Guth and Barrett also served as troopers with PSP. Guth was a sergeant and served as the Criminal Investigations Section Supervisor for Troop L. In this capacity, Guth's job duties included the investigation of various crimes, including crimes that may have been committed by fellow PSP employees. Guth, like Schell, was based in the PSP's Reading Barracks. Guth and Schell knew each other but did not have any relationship beyond the workplace.
Schell's dismissal from PSP followed both criminal investigations and investigations by the PSP Internal Affairs Division (IAD) into Schell's separate and unrelated interactions with a minor female, R.T., and an adult female, J.S. Barrett, a corporal assigned to IAD and stationed in Harrisburg, conducted the IAD investigations, and Guth conducted the criminal investigations. Schell and Appellants acknowledge some overlap and cooperation between the IAD and criminal investigations, as they both looked into the same alleged inappropriate conduct by Schell. As Schell acknowledges in both his Complaint and his brief on appeal, the alleged wrongful conduct of Appellants in this case occurred while both were acting in their capacities as troopers.
With respect to R.T., a friend of R.T., O.K., reported alleged inappropriate contact
between Schell, then 37 years old, and R.T. to a school guidance counselor, who referred the matter to Berks County Children and Youth Services (CYS). Eventually, the matter came to the attention of Guth's supervisor, Lieutenant (Lt.) Bernot, who, on January 11, 2007, advised Guth of the allegation and assigned Guth to investigate the matter for criminal conduct. Guth's report of his investigation into the allegations is included in the record in support of Appellants' motion for summary judgment. (Reproduced Record (R.R.) at 179a-247a.)
Several additional noteworthy things happened that same day. Lt. Bernot placed Schell on restricted duty status and directed him not to have any contact with R.T. Guth spoke with both the guidance counselor and R.T.'s father. The next day, January 12, 2007, Guth interviewed R.T. During the interview, R.T. recounted how she came to meet Schell in early 2006 through her father. She described how she enjoyed job-shadowing Schell in February 2006 and how she attended " Camp Cadet," a weeklong summer camp, at his suggestion. Schell was a counselor at the camp. She explained how she saw Schell on a regular basis at the " GoggleWorks" in Reading, where R.T.'s sister and Schell's daughters attended classes together. She also indicated that they would sometimes speak by phone.
R.T. told Guth how she and Schell usually hugged to greet each other. With respect to the incident reported by her friend to the guidance counsel, R.T. said that the hug occurred in an empty stairwell and that Schell was attempting to comfort her because she was upset over a family member. R.T. denied that the hug was at all sexual in nature and that Schell touched her buttocks. Following the interview of R.T., Guth spoke with R.T.'s parents outside of her presence. During that conversation, the parents indicated that Schell appeared to be a positive influence on their daughter's life, but that they had become worried about the relationship. One of R.T.'s cousins also had expressed some concern about the relationship. R.T.'s parents gave Guth access to R.T.'s cellular telephone, but the phone had limited useful information. Specifically, it does not appear that any text messages between R.T. and Schell were preserved on the telephone. R.T.'s father later provided records for the phone for the period September 26, 2006, through December 18, 2006. These records revealed thirty-nine text messages and eight phone calls between R.T. and Schell's cellular telephone. But again, copies of the actual messages were not available.
On January 17, 2007, Guth spoke with O.K. O.K. relayed to Guth details of conversations that she had with R.T. about her relationship with Schell. In some of those conversations, R.T. expressed romantic feelings toward Schell. She also showed O.K. text messages from Schell. On January 5, 2007, R.T. showed O.K. a text message string that included the following exchange:
Schell: So, did you like your hug?
R.T.: Hell yeah!
Schell: Well, next time, don't bring your books and I will give you more.
O.K. recounted that R.T. was excited to see Schell after receiving this text. R.T. relayed how the night before, Schell told R.T., when they were alone, that " I want my hug," or " Don't I get a hug." After that, Schell hugged R.T., during which he
rubbed R.T.'s back and touched, or " tapped", her buttocks. R.T. also told O.K. that during the hug she could feel Schell's erect penis against her body. Following the interview, Guth spoke with the guidance counselor again, who expressed her belief that O.K. was a credible witness.
On January 19, 2007, Guth spoke with two troopers who had been staffing a D.U.I. checkpoint on an evening in October 2006. R.T.'s father had dropped R.T. off at the checkpoint, leaving her in Schell's care. Both troopers recalled R.T. being on-site at the checkpoint. One recalled how Schell instructed him to drive R.T. home after the checkpoint ended. Guth also spoke with another trooper who recalled R.T. doing the job shadow with Schell and attending Camp Cadet. This trooper did not observe any unusual behavior between R.T. and Schell.
On January 23, 2007, Guth spoke with G.F., another friend of R.T.'s. Consistent with O.K., G.F. relayed a conversation she had with R.T. about her romantic feelings toward Schell and how he " tapped" her buttocks during a hug. That same day, Guth confirmed that there were no security cameras in the stairwells at the GoggleWorks, where the alleged inappropriate touching occurred.
On January 24, 2007, Guth spoke with two Camp Cadet counselors. One had no noteworthy information. The other, a Reading Police Officer (Reading Officer) relayed a recent conversation that he had with a junior counselor. During that conversation, the junior counselor told the Reading Officer that R.T. called her and told her that a girl at school who did not like R.T. reported Schell to a school counselor. R.T. denied that there had been any inappropriate contact between her and Schell.
On February 2, 2007, Schell surrendered his personal cellular phone to Guth without incident after being presented with a warrant. Schell would not respond to Guth's questions about R.T. Guth asked Schell how long he had had the phone and whether it had been altered. Schell responded that he had it for one or two years and would not know how to alter it. An examination of Schell's cellular phone revealed no recent activity. Guth used a third-party software to examine the phone's SIM (subscriber identity module) card. The report generated by the software revealed twenty-three entries for the SIM card of " sms_cleared."  (R.R. at 204a.)
On February 9, 2007, Guth spoke with another friend of R.T.'s, N.R. N.R. relayed to Guth what R.T. told her about her relationship with Schell. Consistent with G.F. and O.K., N.R. relayed how R.T. had a " little crush" on Schell. She too also recounted seeing a text message between Schell and R.T. about a hug. According to Guth's report, N.R. recounted the exchange as follows:
Schell: You miss me?
Schell: Did you like my hug?
Schell: Don't bring anymore damn books and you'll get more.
(R.R. at ...