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Pezzano v. Towamencin Township

Commonwealth Court of Pennsylvania

February 16, 2017

Kevin A. Pezzano, Appellant
Towamencin Township

          Argued: October 19, 2016



          PATRICIA A. McCULLOUGH, Judge

         Kevin A. Pezzano (Pezzano) appeals from the October 2, 2015 order of the Court of Common Pleas of Montgomery County (trial court), sustaining the preliminary objections of Towamencin Township (Township) and dismissing, with prejudice, Pezzano's complaint asserting a claim for breach of contract.

         Pezzano was employed by the Township as its Fire Marshal, Code Enforcement Officer, and Emergency Management Coordinator. On November 28, 2012, Pezzano was told that his employment would be terminated because the Township was "too small" to have a full-time Fire Marshal. Pezzano and the Township, by way of its Solicitor, entered into a Confidential Employee Separation Agreement and General Release (Agreement) dated January 14, 2013, which contained the following provision:

All parties agree that, at all times hereafter, the facts relating to the existence, terms and conditions of this Agreement and the allegations in this matter will be kept confidential and will not be disclosed voluntarily to any third party, except to the extent required by law, to enforce this Agreement, or to obtain confidential legal, tax or insurance advice with respect thereto. All parties further agree to refrain from disparaging each other in any fashion and to that end they will decline comment to any third party regarding each other, provided, however, that either may give sworn testimony about the other party if required or compelled to do so in a legal action or proceeding.

(Trial court op. at 1-2.)

         On January 23, 2013, the Agreement was approved by a 3-2 vote of the Township Board of Supervisors, with Supervisors David Mosesso (Mosesso) and Harold Wilson (Wilson) dissenting. The Township's Solicitor signed the Agreement on behalf of the Township. Two days later, on January 25, 2013, Mosesso and Wilson gave statements to a journalist for the newspaper The Reporter. The next day, an article appeared in The Reporter in which Mosesso and Wilson were quoted as stating that Pezzano was "dismissed for cause." The article was also available online. (Trial court op. at 2.)

         On April 4, 2013, Pezzano and his wife Elizabeth filed an action in the trial court (prior action) raising claims of defamation, invasion of privacy, fraud, and loss of consortium against Mosesso and Wilson, and breach of contract against the Township. The prior action alleged that Mosesso and Wilson had no intention of honoring the confidentiality clause at the time the Agreement was executed, and that their false statements harmed Pezzano's veracity and professional reputation. Mosesso, Wilson and the Township all filed preliminary objections. (Reproduced Record (R.R.) at 34a.)

         On November 20, 2013, the trial court sustained the preliminary objections of Mosesso and Wilson and overruled the preliminary objections of the Township. The trial court found that the defamation and invasion of privacy claims against Mosesso were barred by immunity because his position as a second-class township supervisor qualified him as a high public official and the comments were made in the scope of his authority. The trial court found that the fraud claim against both Mosesso and Wilson was legally insufficient because it contained no well-pleaded material facts, was not stated with particularity, and was predicated upon speculation and legal conclusions. Pezzano discontinued without prejudice the prior action as to the Township and appealed the trial court's ruling as to Mosesso and Wilson. (R.R. at 26a-31a, 35a-39a.)

         In an unpublished panel decision, this Court affirmed the trial court's decision sustaining the preliminary objections. Pezzano v. Mosesso (Pa. Cmwlth., Nos. 189 C.D. 2014 and 190 C.D. 2014, filed October 24, 2014) (Pezzano I). Notably, we held that any statements made by Mosesso explaining his vote and the rationale for his vote were within the course of his legitimate duties and within his authority; therefore, the trial court did not err in determining that he was entitled to high public official immunity with respect to the defamation and invasion of privacy claims. (R.R. at 41a-55a.)

         On April 24, 2015, Pezzano filed a second complaint against the Township alleging a single count of breach of contract, namely the confidentiality provision of the Agreement. Pezzano claims that the Township breached the Agreement because Mosesso and Wilson voluntarily provided comment to a journalist in which they disclosed the existence and terms of the Agreement, and because the statement that Pezzano was "dismissed for cause" was false and disparaging. The Township filed preliminary objections alleging legal insufficiency based upon this Court's prior decision in Pezzano I; failure to state a claim for breach of contract for failure to show disparagement by the Township; Township immunity; the "Gist of the Action" doctrine; and a motion to strike allegations of damages related to defamation. Following oral argument and the filing of briefs, the trial court issued an order dated October 2, 2015, sustaining the Township's preliminary objections and dismissing Pezzano's complaint with prejudice. Pezzano then filed a notice of appeal with the trial court. (R.R. at 2a-24a.)

         In its Pa.R.A.P. 1925(a) opinion, the trial court noted that Pezzano's complaint solely alleged a breach of contract claim, which requires him to plead the following: (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages. General State Authority v. Coleman Cable and Wire Co., 365 A.2d 1347, 1349 (Pa. Cmwlth. 1976). The trial court stated that the law is clear that a contract action cannot be maintained against a person who is not a party to the contract, unless the plaintiff is a third-party beneficiary of the contract or the suit is for products liability or breach of warranty. Commonwealth, State Public School Building Authority v. Noble, 585 A.2d 1136, 1140 (Pa. Cmwlth. 1991). In this case, the ...

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