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Brennan v. Cannella

United States District Court, Eastern District of Pennsylvania

May 13, 2015

PHILLIP J. CANNELLA, III, et al., Defendants.



Before the Court are Defendants’ Motion for Summary Judgment (Doc. No. 19), Plaintiff’s Response in Opposition thereto (Doc. No. 21), and Defendants’ Reply in Further Support thereof (Doc. No. 22). For the reasons given below, the Motion is GRANTED IN PART and DENIED IN PART. An Order follows.


This matter is the second suit arising from a dispute between Ms. Brennan and the Defendants. In the other matter, previously before this Court, the instant-defendants filed suit against Ms. Brennan alleging that she “intentionally posted false, misleading, deceptive and harmful information” about the Defendants on her websites - and See Second Amended Complaint, Case No. 12-cv-1247, Doc. No. 156. The Parties recently agreed to dismiss that suit. Case No. 12-cv-1247, Doc. No. 201.

In this matter, Ms. Brennan alleges that the Defendants utilized a variety of unlawful methods to take her sites offline and access her personal accounts. See Amended Complaint, Doc. No. 8. More specifically, Plaintiff alleges that Cannella and his associates (1) mounted denial-of-services attacks in an effort to disable the sites; (2) requested that the website host delete Plaintiff’s data from its servers; (3) unlawfully accessed several of her web hosting and email accounts, and (4) used this access to disable her websites, steal her private information, and impersonate her. Id. at ¶¶ 14-32. She has brought claims against the Defendants for invasion of privacy and identity theft, negligence per se under a variety of statutes, and for civil conspiracy. Id. at ¶¶ 33-69.

In the instant Motion, Defendants move for summary judgment on all of these claims.


Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making this determination, “inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (alteration in original; quotation marks omitted). “There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The party opposing summary judgment “may not rest upon the mere allegations or denials of the ... pleading; its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (alteration in original; quotation marks omitted).

III. Discussion

A. Negligence Per Se Claims

Plaintiff’s Complaint presents three claims premised on a negligence per se theory of liability. She alleges that the Defendants violated three Pennsylvania criminal statutes, all related to the unlawful use of computers. See Doc. No. 8 at ¶¶ 45-63. These statutes do not create private causes of action, so Plaintiff has attempted to use negligence per se to create them. This is an improper use of the doctrine and the claims must be dismissed.

The doctrine of negligence per se is not a standalone tort, but rather an evidentiary presumption applicable under certain circumstances in negligence actions. Put simply, the doctrine “establishes, by reference to a statutory scheme, the standard of care appropriate to the underlying tort.” In re Orthopedic Bone Screw Products Liab. Litig., 193 F.3d 781, 790 (3d Cir. 1999). Thus it “enables plaintiffs to establish as a matter of law that the defendant’s conduct constituted a breach of duty in a negligence action, so that only causation and damages need be proved.” Id. The doctrine cannot be used to simply create a private cause of action in any statute that does not provide for one. See id. at 791 (“[Plaintiffs’] interpretation of per se liability would allow private plaintiffs to recover for violations of a federal statute that creates no private cause of action .... We do not believe the concept of per se liability supports such a result.”).

This is not a negligence action - Plaintiff is claiming that the Defendants intentionally attacked her websites and personal accounts. Thus the doctrine of negligence per se is not applicable to the facts alleged, and it cannot be used to create private causes of action ...

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