Submitted March 24, 2014.
Appeal from the Order of the Court of Common Pleas, Monroe County, Civil Division, No.: 5544-CV-2013. Before WILLIAMSON, J.
Brett J. Riegel, Stroudsburg, for appellant.
Christie E. S. Bower, Stroudsburg, for appellee.
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J. OPINION BY WECHT, J.
Igor Spitsin appeals the trial court's October 2, 2013 order sustaining the preliminary objections of WGM Transportation, Inc. (" WGM" ) to Spitsin's complaint. 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 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, 2011 PA Super. 34, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting Johnson v. Amer. Std., 607 Pa. 492, 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 fare. Spitsin then attempted to leave by Wawa's back door, but was 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 during the course of and within the scope of the servant's 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 within the scope of employment as follows: " (1) 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, 270 Pa.Super. 102, 410 A.2d 1270, 1271-72 (Pa. Super. 1979) (some citations omitted).
WGM filed preliminary objections to Spitsin's complaint, setting forth the following substantive ...