author: VAN JURA, J.,

text:
    Saita v. Flower

      Julia Munley, for plaintiff.

      Edward Patrick Heffron, for defendant.
    July 22, 2011
   VAN JURA, J.,

This matter is before the court on the motion for partial summary judgment filed by plaintiffs, Joseph Saita and Judy Saita, his wife.

These three (3) actions arise out of a motor vehicle accident which occurred on July 28, 2006, in Hanover Township, Luzerne County, Pennsylvania. Plaintiff, Joseph Saita, was injured when his vehicle was struck by a vehicle driven by defendant, Richard Flower, who admittedly drove through a stop sign, and then proceeded into an intersection, without stopping or looking to see whether cars were entering the intersection. At the time of the accident, defendant, Richard Flower, was operating a vehicle owned by his employer, defendant, Colgate-Palmolive Company and was on his way to an employment site.

By way of background, the plaintiffs, Joseph Saita and Judy Saita, his wife, filed suit against defendant, Richard Flower, to Docket No. 7232-08, in the court of Common Pleas of Luzerne County, on May 23, 2008.

On July 8, 2008, plaintiffs filed suit to Luzerne County No. 9319-2008 against defendant, Colgate-Palmolive Company, alleging that the collision resulted from the negligence of its employee, defendant, Richard Flower.

On or about December 2008, Richard Flower filed a complaint to No. 9307-2008 against Joseph Saita alleging that the collision was caused, in whole or in part, by Joseph Saita’s negligence. On March 28,2011, all three (3) actions were consolidated by this court for all purposes.

The plaintiff, Joseph Saita, was traveling northbound on the Sans Souci Parkway. The collision occurred when the defendant, Richard Flower, made a left hand turn, off the exit from Route 29, on to the Sans Souci Parkway.

The defendant, Flower, has admitted proceeding through the stop sign at the end of the exit without stopping, and entering the intersection, without looking. The defendant has, however, asserted as an affirmative defense, the provisions of 75 Pa. C.S.A. 3107, which confers a conditional privilege and alters a driver’s duty to stop for a stop sign, when the driver is the non-lead driver of a vehicle in a funeral procession and other requirements are met. Discovery has been conducted and all the relevant pleadings are closed.

The plaintiffs, Joseph Saita and Judy Saita, have filed a motion for partial summary judgment, seeking dismissal of defendant, Flower’s, affirmative defenses based on 75 Pa. C.S.A. 3107. (See Paragraph 28 of the defendant, Flower’s New Matter which alleges, that the plaintiffs’ complaint is barred by the provisions of 75 Pa. C.S.A. section 3107.)

The deposition of defendant, Richard Flower, was taken on November 4, 2009.

On the day in question, the defendant was traveling in the right hand lane of Route 29, intending to get off at the exit for the Sans Souci Parkway. (Dep. p. 64).

About a quarter mile from his exit, the defendant saw that the car in front of him had its flashers on and was driving slowly. He believed the vehicle had “car trouble.” (p. 36, 38, 65, 66) He moved over to the left lane to pass the vehicle, and then realized the vehicle was in, and part of, a funeral procession. (Dep. pp. 36, 38, 39, 65). He passed another four (4) or five (5) vehicles in the funeral procession and saw that there was a gap between two (2) of the cars in the procession and then moved his vehicle into the gap and into the funeral procession. (Dep. pp. 66, 67) He alleged he was forced to proceed that way in order to be able to exit Route 29, on to the Sans Souci Parkway. (Dep. p. 105) He proceeded to the end of the exit ramp, intending to make a left turn onto Sans Souci Parkway. (Dep. pp. 36, 38, 39, 41. 67) The defendant conceded “I was not involved in the funeral.” (Dep. p. 71)

The defendant knew there was a stop sign at the end of the exit ramp. (Dep. p. 69) Mr. Flower did not stop at the stop sign. (Dep. p. 69) He did not look to see if there were vehicles coming down the Sans Souci Parkway. (Dep. p. 46) “Honestly, I didn’t even look...normally I look both ways.” (Dep. p. 46) Mr. Flower admitted he was not a part of the funeral, although his vehicle became physically situated in the funeral procession line of cars. (Dep. p. 71) Mr. Flower also admitted he did not intend to stay in the funeral procession line of cars, but intended to pull into a parking lot after he and the procession made the completed left hand turn on to the Sans Souci Parkway...”. (Dep. p. 47, 73)

Mary Alice Erickson was a witness to the accident. Her deposition was taken on October 4, 2010.

She testified that Mr. Flower’s vehicle did not have any designation on it that indicated it was part of a funeral procession. (Emphasis supplied) (Erickson Dep. p. 15)

Under Pennsylvania Rule of Civil Procedure 1035.2, summary judgment is appropriate:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause or action or defense which could be established by additional discovery or expert report or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Amotion for summary judgment can be granted in only the clearest of cases, where the right to judgment is clear and free from any doubt. Kotwasinski v. Rasner, 436 Pa. 32, 41, 258 A.2d 865 (1969) (vacating summary judgment); Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452, 454 (1973) (vacating summary judgment; there cannot be “the least doubt as to the absence of a triable issue of material fact.”) Only in those cases where the record clearly shows no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law may summary judgment be granted. Capek v. Devito, 564 Pa. 267, 270 n.1, 767 A.2d 1047, 1048 n. 1(2001).

The burden of proving the non-existence of an issue of fact is on the party moving for summary judgment. Prince v. Pavoni, Supra, 225 Pa. Super. at 288, 302 A.2d at 454; Schacter v. Albert, 212 Pa. Super. 58, 61, 239 A.2d 841, 843 (1968). The record must be viewed 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. Potter v. Herman, 762 A.2d 1116, 1117-18 (Pa. Super. 2000)

The section of the Pennsylvania Motor Vehicle Code relied upon by the defendant, 75 Pa. C.S.A. Section 3107, is entitled “Vehicles in Funeral Procession”. This part of the motor vehicle code governs the responsibilities and duties of drivers in a funeral procession. The statute reads as follows:

3107. Drivers in funeral processions
(a) General rule. — The driver of a vehicle which is being driven in a funeral procession may:
1. Park or stand irrespective of the provisions of this part.
2. Proceed past a red signal indication or stop sign if the lead vehicle in the procession started through the intersection while the signal indicator was green or, in the case of a stop sign, the lead vehicle first came to complete stop before proceeding through the intersection.
(b) Visual signals required. -- The privileges granted by this section shall apply only if each vehicle in the funeral procession displays lighted head lamps and emergency flashers and bears a flag or other insignia designating it as part of a funeral procession.
(c) Right of way to emergency vehicles. -- This section does not relieve the driver of vehicles which is being driven in a funeral procession from yielding the right of way to an emergency vehicle making use of audible or visual signals, nor from the duty to drive with due regard for the safety of all persons.

It is the law of the Commonwealth that motorists driving in funeral processions are entitled to respect and consideration from other motorists on the roadway, and that they should be permitted to proceed in a continuous procession through an intersection, if done consistently with the provision of the statute Pa. C.S.A. 3107(a) and (b) but that each individual driver is not relieved of the duty to drive with due regard for the safety of all persons. Pa. C.S.A. Section 3107(c). If each vehicle in a funeral procession had its headlights and emergency flashers on, and each bears a flag or other insignia designating it as part of a funeral procession, then the driver of any vehicle in the procession may proceed past a...stop sign, if the lead vehicle in the funeral procession started through the intersection...after coming to a complete stop at the stop sign. 75 Pa. C.S. 3107(a)(2). See Przybyszewski v. Nunes, 168 Pa. Super. 311, 77 A.2d 703 (1951) for a discussion of an intersectional collision under a prior iteration of the statute in question.

Mr. Flower testified that he believed there were twenty (20) cars in front of him; and five (5) or six (6) behind him. He also stated, “I was not involved with the funeral.” (See Page 71, Line 12 of Flower’s Deposition.) He was asked where he intended to go at the end of the ramp and stated, “At the end of the exit ramp, the funeral procession went left and (I) wanted to go left also.”

Based upon the defendant’s own testimony and the undisputed facts of record, the defendant, Mr. Flower, is not entitled to avail himself of the privileges accorded to drivers of motor vehicles in a funeral procession pursuant to Pa. C.S.A. Section 3107.

Mr. Flower was not a participant in the funeral, nor a bona fide participant in the funeral procession.

There is inconclusive evidence as to whether he had his head lamps lighted and emergency flashers activated, but there is no evidence of record that his vehicle bore any flag or insignia designating it as part of the funeral procession. Pa. C.S.A. Section 3107(b) All of the requirements of subsection (b) are in the conjunctive and therefore all are required.

The court finds that based on the law of the Commonwealth and upon Mr. Flower’s own admissions, he was not a bona fide part of the funeral procession, nor the funeral, nor did he intend to go to the cemetery as did the other participants of the procession. He also admitted he was on his way to work for defendant, Colgate-Palmolive. The purpose of 75 Pa. C.S.A. 3107 is to extend a qualified privilege to those vehicles which are properly in a funeral procession. Its purpose is not to benefit nonparticipant motor vehicle operators. The defendant’s inadvertent happening upon a funeral procession and “cutting” into the procession’s line of vehicles with an intent to exit the highway where the procession intended to exit the highway, does not confer upon him the unique privileges contemplated by 75 Pa. C.S.A. 3107.

There is no genuine issue of any material fact as to the lack of a necessary element of the defendant’s affimative defense pursuant to Pa. R.C.P. 1035.2(1) and therefore the court enters the attached order.

ORDER

Now July 22, 2011, for the reasons set forth in the memorandum opinion attached hereto.

The motion for partial summary judgment of the plaintiffs, Joseph Saita and Judy Saita, his wife, is hereby granted.

The Prothonotary is directed to serve notice of the entry of this order pursuant to Pa. R.C.P. 236.


source: Caselaw Access Project

author: NANOVIC, P.J.,

license: Public Domain

text:
    Hukka v. Weyhenmeyer

      Cynthia S. Ray, for plaintiff.

      Nicholas J. Masington III, for defendant.
    June 24, 2011
   NANOVIC, P.J.,

In these divorce proceedings, Shelly Jaye Weyhenmeyer (“defendant”), denies that the parties ever married. Since it is axiomatic that there must be a marriage before there can be a divorce, this issue was heard at a hearing held on January 18 and January 25,2011. As a result, we address one fundamental question: Was there a common-law marriage? The answer, as discussed below, is no.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, plaintiff and defendant began living together in a romantic relationship. At the time defendant was married. The relationship, which ended in November 2008, produced two children: Jake, bom December 13, 1997, and Sage, bom October 26, 2000.

Plaintiff testified that “somewhere after March 1997,” while in their bedroom, the parties said to one another, “This is the beginning of our new life together as husband and wife.” He then put a toe ring on defendant and she attempted to do the same to plaintiff, but the ring was too small. Thereafter, the couple celebrated the event by drinking wine and having sex in a candle-lit hot tub. Defendant denied this testimony.

As a preliminary matter, plaintiff has requested that we determine the parties’ marital status.

DISCUSSION

The burden of proving a common law marriage is on the party alleging the marriage. Staudenmayer v. Staudenmayer, 552 Pa. 253, 262, 714 A.2d 1016, 1020 (1998). This burden is a “heavy” one and the claim must be reviewed with “great scrutiny.” Id. As a matter of law, a common law marriage is disfavored. Baker v. Mitchell, 17 A.2d 738, 741 (Pa. Super. 1941).

To prove a common law marriage the proponent must prove an exchange of words in the present tense spoken with the specific purpose of creating the legal relationship of husband and wife. Staudenmayer, 714 A.2d at 1020. “[W]here the parties are available to testify regarding verba in praesenti, the burden rests with the party claiming a common law marriage to produce clear and convincing evidence of the exchange of words in the present tense spoken with the purpose of establishing the relationship of husband and wife....” Id. at 1021. When direct evidence presented by the parties of the marriage is disputed, as here, “the party claiming a common law marriage may introduce evidence of constant cohabitation and reputation of marriage in support of his or her claim.” Id. Notwithstanding such circumstantial evidence, “if a putative spouse who is able to testify and fails to prove, by clear and convincing evidence, the establishment of the marriage contract through the exchange of verba in praesenti, than that party has not met its ‘heavy’ burden to prove a common law marriage....” Id.

In the instant case, the only words spoken were, “This is the beginning of our new life together as husband and wife.” Standing alone, these words appear to be more appropriately spoken after an exchange of vows has occurred rather than being the exchange of vows. Although these words, when coupled with the partial exchange of toe rings, might be sufficient to prove a marriage if so intended by the parties, we are not convinced this exchange occurred. Id. at 1020. (“The common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time.”).

In his original divorce complaint filed on November 10, 2009, plaintiff averred that the parties have been common-law married since 1995. (Complaint, ¶4). If this date is accurate, the marriage would be invalid since defendant was not divorced from her husband until May 30, 1997. (Defendant Exhibit 20). See International Painters and Allied Trades Industry Pension Fund v. Calabro, 312 F. Supp. 2d 697, 702 (E.D. Pa. 2004) (recognizing that one whose previous marriage has not been dissolved is incapable of contracting to marry another). Later, in a motion filed on February 22, 2010, to set aside several documents, plaintiff averred that the parties’ common-law marriage occurred on May 30, 2005. (Motion, ¶5). Pursuant to 23 Pa.C.S.A. §1103, a common law marriage on this date would be invalid. Finally, in answers to interrogatories dated April 23, 2010, plaintiff stated the marriage occurred sometime during 1997. (Defendant Exhibit 37, No. 1).

On May 25, 2005, for purposes of defendant receiving health insurance benefits through plaintiff’s employer, plaintiff and defendant executed a common law marriage affidavit claiming they were common law husband and wife. (Plaintiff Exhibit A). Significantly, the date of the common law marriage is not stated in this affidavit. Regardless, the overwhelming number of documents, many filed of public record, are evidence that the parties were not married. These documents include deeds, tax returns, the parties’ wills prepared in 2006 and various employment, medical, financial and insurance records. In addition, in an agreement between the parties, dated June 11, 2009, in which the parties divide the property they acquired together, they identify themselves as former boyfriend and girlfriend.

Although defendant has at times been inconsistent in describing her marital status, often times plaintiff himself has claimed he is single, whereas he now claims he was not. In official tax returns filed for the years 2001 and 2004 through 2008, under penalty of perjury, plaintiff identified himself as a single person. Overall, neither party has much to extol in their relationship with one another, which even under plaintiff’s version was at best an open marriage.

In the end, however, the ultimate question is whether plaintiff has proven by clear and convincing evidence that the parties entered into an agreement for marriage. PPL v. Workers’ Compensation Appeal Board (Rebo), 5 A.3d 839, 845-46 (Pa. Cmwlth. 2010). By this standard - that the testimony be so clear, direct, weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue - plaintiff has not met his burden.

CONCLUSION

In that plaintiff has not proven by clear and convincing evidence the existence of a common law marriage, plaintiff’s complaint in divorce will be dismissed.

      . The Pennsylvania Legislature statutorily abolished common law marriages entered after January 1, 2005. However, common law marriages entered prior to that date are considered valid. See 23 Pa.C.S.A. §1103.

      . Plaintiff’s tax returns for the years 2002 and 2003 were not pr - sented at the time of hearing.


author: TERESHKO, J.,

text:
    Greene v. Street

      Clifford E. Haines and Lauren Ann Cates, for plaintiff,

      Michael A. Bowman and Charles M. Gibbs, for defendant.
    August 5, 2011
   TERESHKO, J.,

Plaintiff appeals from this court’s order of February 8,2011 granting defendant’s preliminary objections in the form of a demurrer and dismissing plaintiff’s complaint.

FACTUAL BACKGROUND

On September 26, 2010 the plaintiff, Carl Greene (hereinafter Greene), was removed from his position as Executive Director of the Philadelphia Housing Authority (hereinafter PHA). (Defendant’s memorandum of law, pg. 2). Greene was removed for reasons of gross misconduct, including, amongst other things, allegations of sexual harassment. (Defendant’s memorandum of law, pg. 3). On December 7, 2010 Greene filed a civil action complaint against defendant John F. Street (hereinafter Street), former Mayor of Philadelphia and present Chairman of the PHA. The action alleged a single count of defamation and a single count of false light invasion of privacy. (Defendant’s preliminary objections, ¶ 1).

Prior to Street’s interview during which he was asked about Greene’s wrongdoings, which is the subject of this action, there had been substantial in-depth public coverage of Greene’s misconduct leading up to this television appearance. (Plaintiff’s memorandum of law, pg. 4). On August 13, 2010, the Daily News reported that Wells Fargo had started foreclosure proceedings against Greene. (Plaintiff’s memorandum of law, pg. 4). The next day, both the Daily News and The Philadelphia Inquirer, the two most prominent and widely read daily newspapers in the Greater Philadelphia area, ran stories documenting federal tax liens against Greene. (Plaintiff’s memorandum of law, pg. 4). On August 18, 2010, the Daily News wrote about Greene’s further wrongdoings, reporting that Elizabeth Helm, a PHA employee, had filed sexual harassment claims against Greene. (Plaintiff’s memorandum of law, pg. 4). Subsequently, The Philadelphia Daily News ran a series of detailed articles documenting claims by various women employed by the PHA alleging sexual harassment against Greene. (Plaintiff’s memorandum of law, pg. 4).

Following the publication of the abovementioned news articles and continuous public coverage of Greene’s misconduct, Street appeared on Channel 6, ABC’s Inside Story, on October 24, 2010. (Defendant’s preliminary obj ections, ¶ 2). During the course of the televised interview, Street was asked, how, as Chairman, he knew nothing about the “goings on” (referring to the aforementioned misconduct of Greene) at the PHA. (Complaint, ¶ 80). By way of explanation as to absence of any awareness of these events Street offered his opinion that, “Mr. Greene ‘lied about everything’ during his tenure at the PHA.” (Complaint, ¶ 81). This brief statement forms the sole basis for Greene’s complaint and allegations of false light and defamation.

On December 27, 2010 Street filed preliminary objections pursuant to Pa.R.C.P. 1028(b)(4) for legal insufficiency of a pleading in regards to both claims of false light and defamation. The preliminary objections maintain that Greene failed to plead the required element of actual malice, an element necessary for a public official to prove for both claims of false light and defamation. (Defendant’s preliminary objections, ¶¶ 5, 6). It was also argued that Street’s statement was based on disclosed public facts and is therefore non-actionable. (Defendant’s preliminary objections, ¶¶ 12, 22). The preliminary objections further assert that Street has absolute immunity from Greene’s claims based on high official immunity. (Defendant’s preliminary objections, ¶ 27).

Greene filed his response to the preliminary objections on January 18, 2011, contending that Street’s comment was not a matter of opinion and it was made with actual malice. (Plaintiff’s memorandum of law, pg. 23). The Response also argues that Street is not relieved of liability based on high official immunity. (Plaintiff’s memorandum of law, pg. 23).

By a finding and order (attached as Exhibit A) dated February 8, 2011 this court granted the defendant’s preliminary objections in the form a demurrer and dismissed the complaint. Greene appealed the order on March 10, 2011 and issued his Statement of Errors pursuant to Pa.R.C.P. 1925(b) on April 8, 2011.

The issue to be addressed on appeal is whether the court erred in finding that plaintiff failed to establish legally sufficient claims for false light or defamation as a matter of law.

LEGAL ANALYSIS

A preliminary objection in the nature of a demurrer tests the legal sufficiency of a plaintiff’s complaint. Smith v. Wager, 403 Pa. Super. 316, 588 A.2d 1308, 1311 (1990). In Pennsylvania, Pa.R.C.P. 1028(a)(4) provides that a party may preliminarily object to a pleading for being legally insufficient to state a cause of action. “A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged.” Petsinger v. Dept. of Labor Indus., 988 A.2d 748, 753 (Pa. Cmwlth. 2010). Counts alleging defamation should be dismissed based on preliminary objections in the nature of a demurrer if it is clear that the communication is incapable of defamatory meaning. Petula v. Mellody, 138 Pa. Cmwlth 411, 588 A.2d 103, 108 (1991). In order to sufficiently state a cause of action for defamation, a plaintiff must establish that the defendant: (1) made defamatory communication; (2) about the plaintiff; (3) that was communicated to a third party; (4) who understood the defamatory meaning of the communication about the plaintiff; (5) where the plaintiff suffered special harm as a result of the communication; and (6) that any privilege invoked by the defendant was abused. 42 Pa.C.S.A. § 8343.

The tort of false light invasion of privacy is defined in the Restatement of Torts § 652 as “...publicity to a matter concerning another that places the other before the public in a false light [...].” To adequately establish a false light invasion of privacy action the plaintiff must prove: “(1) the false light in which the other was placed would be highly offensive to a reasonable person and, (2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Restatement of Torts § 652E, See also Strickland v. University of Scranton, 1997 Pa. Super. LEXIS 2894, 700 A.2d 979 (1997).

Greene’s complaint alleges one count of defamation and one count of false light. The main issues that befall plaintiff’s complaint are whether: (1) Greene failed to plead and prove “actual malice” as part of his defamation claim; (2) the statement at issue made by Street that Greene “lied about everything” did not support a claim for false light invasion of privacy where the statement pertained to a highly visible and public controversy; (3) the statement “he lied about everything,” was offered as a matter of opinion and is incapable as a matter of law as having a defamatory meaning and; (4) Street is immune from liability for defamation and false light claims under the doctrine of high public official immunity when commenting on a matter within the scope of his duties and responsibilities as Chairman of the PHA.

High Public Official Immunity

The affirmative defense of high public official immunity may be raised by preliminary objections in the nature of a demurrer where that defense is apparent on the face of the pleading. Wurth v. City of Philadelphia, 136 Pa. Comwlth. 629, 584 A.2d 403, 407 (1990). The Pennsylvania Supreme court has recognized that the public interest is best served by granting broad immunity to high-ranking officers, thereby promoting “unfettered discharge of public business and full public knowledge of the facts and conduct of such business. [High public official] immunity is thus a means of removing any inhibition which might deprive the public of the best service of its officers and agencies.” Montgomery v. City of Philadelphia, 392 Pa. 178, 183, 140 A.2d 100, 103 (1958).

The Supreme Court of Pennsylvania defines high public official immunity as:

...unlimited and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or action motivated by malice, provided the statements are made or actions are taken in the course of the official’s duties or powers and within the scope of his authority, or as it is sometimes expressed, within his jurisdiction.

Matson v. Margiotti, 371 Pa. 188, 194; 88 A.2d 892, 895 (1952).

The determination of whether a public officer falls within the immunization provided by high public official immunity requires an examination of the officer’s duties. This includes an inquiry as to the nature of his duties, the importance of his office, and whether he has policy making power. Montgomery, 140 A.2d at 150. In Montgomery, the Supreme Court of Pennsylvania held that the Deputy Commissioner of Public Property of Philadelphia and the City Architect of Philadelphia were entitled to immunity for defamatory statements they made to the press. Id at 105. Also, an important factor in the evaluation of whether someone is a high public official for the purpose of absolute immunity is whether he or she exercises “responsibility for independent initiation of administrative policy regarding some sovereign function of...government.” Rok v. Flaherty, 106 Pa. Comwlth. 570, 527 A.2d 211, 213 (1987).

An important requirement for high public official immunity is that the statements made or actions taken were done so in the course of the official’s duties. Matson, 88 A.2d at 892. The immunity applies to all statements which are “closely related” to the performance of those official duties. Mosley v. Observer Publishing Co., 422 Pa. Super. 255, 619 A.2d 343, 346 (1993). Furthermore, “[a] liberal construction is applied to determine whether an action falls within the official’s duties.” Barto v. Felix, 250 Pa. Super. 262, 378 A.2d 927, 929 (1977).

As Chairman of the PHA, Street is clearly protected by high public official immunity. As Chairman of a Commonwealth agency, Street is responsible for the administration of a multi-million dollar budget and has the power to make a broad range of policy decisions. The Pennsylvania Housing Authorities Law, 35 P.S. 1541 et seq. establishes the Philadelphia Housing Authority as a “public body, corporate and politic” that exercises “the public powers of the Commonwealth as an agency thereof, which powers...include all powers necessary or appropriate to carry out and effectuate the purpose and provisions of [the Act].” 35 P.S. § 1150. Street’s authority as Chairman derives directly from §§ 1545-47 of the Act.

Street’s authority includes oversight of a $340 million annual budget as well as 1,250 employees. He has independent power to make administration and policy decisions and there is no doubt that his function is of great importance at the PHA. If, as in Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958), a school board director is sufficiently important to qualify as a high public official, or, as in Schroak v. Pennsylvania State Police, 26 Pa. Commw. 41, 362 A.2d 486 (1976), a state police captain in charge of a local troop can be granted high public official immunity, Street’s position as Chairman of the PHA unquestionably warrants the same status.

Further, Street was clearly acting within the course of his official role as Chairman of the PHA. While on a local news program, Street was asked why he had not known about the “goings on” at the PHA. When responding, he was commenting in his capacity as Chairman about the conduct of one of its public employees and therefore was acting within his official duties at PHA. Furthermore, as Chairman, Street had an obligation and duty to respond to public charges and criticisms related to the PHA. Accordingly, because Street both qualifies as a high official and was acting within the scope of his duties, he qualifies for high public official immunity. Therefore, Street is immunized from liability for the opinion he offered regarding Greene, and Greene’s claims for false light invasion of privacy and defamation must be dismissed.

Failure to Plead Actual Malice

In order to establish a claim for defamation as a public figure, the plaintiff must prove with “convincing clarity” that the defendant acted with actual malice. New York Times v. Sullivan, 376 U.S. 254, 281 (1964); Smith v. Wagner, 402 Pa. Super. 316, 588 A.2d 1308, 311 (1991), (housing authority director is public figure for purposes of defamation action). “An individual is a...public figure if he or she has ‘general fame or notoriety in the community, and a pervasive involvement in the affairs of society.”’ Getz v. Robert Welch, Inc, 418 U.S. 323, 352 (1974). To establish actual malice, it must be pled and proven that the defendant acted with “knowledge or reckless disregard of the falsity of the objectionable statements.” Smith, 588 A.2d at 1131.

Greene, as Executive Director of the PHA and the center of a highly public controversy, is undoubtedly a public figure. The allegations surrounding Greene’s tax liens and accusations of sexual harassment go directly to his integrity as a public employee for the PHA. Therefore he must plead and prove that Street acted with actual malice. However, nowhere in Greene’s complaint does he even allege actual malice and, thus, his claim for defamation must fail.

Greene’s failure to plead actual malice also proves fatal to his claim for false light. Our Superior Court has consistently held that to sustain a false light claim “the person making the statement that is accused of rending another in a false light must act with ‘knowledge of or... in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed.’” Rush v. Philadelphia Newspapers, Inc, 1999 Pa. Super. 141, 732 A.2d 648, 655 (Pa. Super. 1998) (quoting Larsen v. Philadelphia Newspaper, Inc., 735 Pa. Super. 66, 543 A.2d 1181 (1988)).

Thus, Greene’s failure to plead actual malice in his complaint warrants a dismissal of both his false light and defamation claims. However, this court will also separately examine the individual inadequacies that invalidate the plaintiff’s false light and defamation claims.

False Light

In addition to the element of malice, the tort of false light entails “publicity that unreasonably places the other in a false light before the public.” Strickland v. University of Scranton, 1997 Pa. Super. LEXIS 2894, 700 A.2d 979, 987 (1997). The elements of this claim that must be proven are publicity, given to private facts, which would be highly offensive to a reasonable person and not of legitimate concern to the public. Id. (lawsuit against plaintiff is a public, not private fact). See also Marricone v. Experian Information Solutions, Inc., 2009 U.S. Dist LEXIS 93003 (E.D. Pa. Oct. 6, 2009) (publication of the existence of a judgment is a public fact, not a private fact). However, Greene has failed to establish that the publicity at issue involved private facts and that those facts were not of public concern.

The first issue proving fatal to Greene’s claim is the requirement of private facts. To be a private fact it must not already be in the public domain and the recipient must not have prior knowledge of the fact. Harris by Harris v. Easter Publishing Company, 335 Pa. Super. 141, 483 A.2d 1377, 1384 (1984). In other words, “liability cannot be based upon that which the plaintiff leaves open to the public eye...[and] where publicity given involves facts where the recipient is familiar.” Id.

Also detrimental to Greene’s claim is the fact that he failed to establish that this publicity was not of legitimate concern to the public. This element “exempts from liability those facts which are of legitimate concern to the public... [and] applies to persons, who voluntarily or involuntarily, have become public figures.” Id (citing Restatement (Second) of Torts § 652D).

Here, Greene is at the center of a media frenzy concerning a highly public controversy involving his misconduct and allegations of sexual harassment while a public employee at the PHA. This information, which led to the question posed on the television program Inside Story, related to public facts, not private ones. The allegations of foreclosure, repeated sexual harassment, and federal tax liens against Greene, as well as his lack of candor regarding these accusations, were squarely in the public domain prior to any statements by Street. It was through Greene’s own actions and omissions that this controversy was thrown into the public eye and open to public debate. Greene cannot now claim that this issue concerns private facts.

Furthermore, misconduct of the Executive Director of the PHA is of legitimate concern to the public. The community needs to be kept informed of the misconduct and wrongdoings of public officials. Therefore, Greene fails to establish both that the communication at issue involved private facts and that the information was not of legitimate concern to the public. As such, his claim for false light must fail.

Defamation

In an action for defamation, the plaintiff has the burden of proving the defamatory character of the communication. 42 Pa.C.S. § 8343(a). “It is the function of the court to determine whether the challenged publication is capable of a defamatory meaning [and] [i]f the court determines that the challenged publication is not capable of defamatory meaning, then there is no basis for the matter to proceed to trial.” Tucker v. Philadelphia Daily News, 577 Pa. 598, 615, 848 A.2d 113, 123 (2004) (quoting Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213, 215-16 (1981)). To determine whether a statement is capable of defamatory meaning, the court must consider “whether the statement tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” Id at 124 (quoting Birl v. Philadelphia Electric Co., 402 Pa. 297, 303, 167 A.2d 472, 475 (1960)). Mere embarrassment or annoyance is not enough; the plaintiff must suffer severe harm that grievously injures his standing in the community. Id.

Additionally, statements of opinion lack the capability of being defamatory. See Kurowski v. Burroughs, 2010 Pa. Super. 69, 994 A.2d 611, 616 (2010). “A statement in the form of an opinion is actionable only if it may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Id. (emphasis added) (quoting Veno v. Meredith, 357 Pa. Super. 85, 515 A.2d 571, 575 (1986). A mere statement of opinion based on disclosed facts is not enough to establish a defamation action. Id. The principle that a statement of opinion cannot support a claim for defamation has been firmly established in Pennsylvania. For example, in Neigh v. Beaver Newspapers, Inc. 398 Pa. Super. 588, 581 A.2d 619, 622-24, the court found that an editorial criticizing the performance of the solicitor of Beaver County and suggesting he be replaced was a statement of opinion. The court further noted that while the statements “might be viewed as annoying and embarrassing, [they were] not tantamount to defamation.” Id.

The United States Supreme court has also recognized that an action for defamation cannot be based on statements of opinion. The court in Gertz v. Welch, 418 U.S. 323, 339 (1974) stated, “under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” Additionally, a defamation action cannot be based on a statement made in loose figurative language that is not “sufficiently factual to be susceptible of being proved true or false.” Milkovich v. Loraine Journal Co., 497 U.S. 1, 19 (1990).

Similarly, statements of rhetorical hyperbole or mere name-calling cannot sustain a defamation action. “A publication which charges that an individual is actuated by unpleasant or undesirable [characteristics] may offend the sensitivities but is not thereby libelous.” Wecht v. PG Pub Co., 353 Pa. Super. 493, 510 A.2d 769, 773 (1986). In Wecht, the court held that cartoons that portrayed the plaintiff as a “vile, obscene, abusive, insensitive, and paranoid individual” did not go so far as to be libelous. Id. They went on to state that “[w]hile no one wants to be presented in such light...’[statements which... are annoying or embarrassing, are, without more, not libelous.’” Id. (quoting Bogash v. Elkins, 405 Pa. 437, 440, 176 A.2d 677, 678 (1962)). Furthermore, exaggerated and imprecise comments should not be viewed in a literal sense and are incapable of possessing defamatory meaning. Id at 11 A. “Americans have been hurling epithets at each other for generations...[c]ertainly such name calling, either expressed or implied, does not always give rise to an action for libel.” Raible v. Newsweek, Inc., 341 F. Supp. 804, 809(W.D. Pa 1972).

Pennsylvania courts have recognized that criticisms, hyperbole, and opinions directed at public officials are not considered actionable defamation. In Redding v. Carlton, 223 Pa. Super. 136, 296 A.2d 880, 822 (1980), the court held that statements accusing the township supervisor of “a conflict of interest at the very least, and perhaps more” was nothing more than “the type of rhetorical hyperbole common to American politics” and, therefore, not actionable. The court went on to say:

[I]n deciding whether or not a publication is defamatory, court should be guided by America’s profound “commitmentto the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Company v. Sullivan, 376 U.S. 254, 270 (1964). The constitutionally protected area of free speech revolves around the freedom to criticize government and the officials responsible for government operations. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). To prevent the chilling effect on free speech, the Supreme Court of Pennsylvania has held that “statements which represent difference of opinion or are annoying or embarrassing, are, without more, not libelous.” Bogash v. Elkins, 405 Pa. 338, 440; 176 A2d 677, 679 (1962). Neither is a statement libelous which is no more than rhetorical hyperbole or a vigorous epithet used to describe what the publisher believed to be another’s extremely unreasonable position. Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970).

Id at 882.

Here, the opinion offered by Street in response to an inquiry about the “goings on” at PHA is incapable of defamatory meaning and, therefore, not actionable. Street’s response to the inquiry as to how he and the PHA were unaware of Greene’s misconduct by opining that he “lied about everything” was a response to a reasonable question which explained the lack of awareness of PHA board members to the recent public exposure of Greene’s ongoing issues. While the statement may cause Greene to “be embarrassed or annoyed” it does not cause “the kind of harm which...grievously fracture[s] his standing in the community of respective society.” Tucker, 848 A.2d at 124. Taken in context, Street’s statement does not provide a factual basis to establish that it is capable of defamatory meaning.

Furthermore, this statement is a mere opinion based on already disclosed facts. Street was simply stating his personal subjective view and, as such, his statement is not capable of defamatory meaning. Moreover, this opinion was based on facts already in the public purview. Various articles about Greene’s scandal were published in the most popular newspapers in Philadelphia and, in fact, Greene pleads in ¶ 59 of his complaint that the PHA investigative report had already been disclosed. Given the circumstances surrounding Street’s statement, it does not give rise to a cause of action for defamation.

While Greene contends in ¶ 90 of his complaint that calling a person who “lied in the performance of his professional obligations constitutes libel per se” that is in fact erroneous. Greene cites Smith v. Wager, 403 Pa. Super. 316, 588 A.2d 1308 (1980) for the proposition calling someone a liar is per se defamation, but that is an incorrect use of case law. The court in Smith clearly states: “Such statements (calling someone a liar, a thief and a crook) are, as a matter of law, capable of defamatory meaning.” Id at 1311. (emphasis added). Being capable of defamatory meaning is vastly different than being per se defamatory.

Given its context and the circumstances surrounding Greene’s tax liens and sexual harassment claims, Street’s comment was an opinion based on the facts presented to him surrounding Greene’s foreclosure on his home, tax liens, and allegations of sexual harassment while employed at the PHA.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the February 8, 2011 order granting defendant’s preliminary objections in the form a demurrer and dismissing plaintiff’s claims for false light invasion of privacy and defamation be affirmed.


author: STEINBERG, J.,

text:
    In Re B.R.

      Jeffrey Dimmig, deputy district attorney, for Commonwealth.

      Andrea Olsovsky, assistant public defender, for defendant.
    July 28, 2011
   STEINBERG, J.,

The juvenile, Brian Roberson, is charged with possession with intent to deliver a controlled substance, namely marijuana, and possession of a small amount of marijuana. On April 25, 2011, a motion to suppress was filed on behalf of the juvenile alleging that all physical evidence and statements made by the juvenile should be suppressed because they were given without Miranda warnings when he was in custody and being interrogated for law enforcement purposes.

At a hearing on the motion held on June 29, 2011, Officer Matthew Diehl, Detective Robert Holler and Officer Christie Correa of the Allentown Police Department testified with respect to the above-captioned matter. The Commonwealth also introduced the “consent to search” form as well as the lab test results. On July 27, 2011, an adjudication hearing was held at which point this court deferred adjudication pending the resolution of this motion.

After consideration of the evidence and the brief submitted by counsel for the defendant, the motion to suppress is granted.

FINDINGS OF FACT

1. Brian Roberson, a juvenile, is the subject of these proceedings. He was bom on July 9, 1994 and at the time of this incident was 16 years of age.

2. On February 26, 2011, at approximately 8:00 p.m., Officers of the Allentown Police Department responded to a report of an assault on one male by a group of individuals. The description of the individuals was four (4) black males, one (1) of which was wearing a red jacket, travelling with two (2) females.

3. Officer Diehl received information from Sergeant Edward Fitzsimmons that less than one (1) block away from the assault, a male with a red jacket and a female were inside the 7-Eleven convenience store at 7th and Linden Street, Allentown. Officer Diehl responded and saw the juvenile, wearing a red jacket, inside the store.

4. Officer Diehl and the juvenile had a brief conversation during which Officer Diehl explained that he was investigating an assault and that the juvenile matched the description of the individual involved. The juvenile identified his name and basic information.

5. Officer Diehl smelled a strong odor of marijuana and asked the juvenile if he had been smoking. The juvenile admitted to smoking marijuana.

6. Officer Diehl asked if the juvenile possessed marijuana on his person and the juvenile did not answer. Officer Diehl told the juvenile that he can “make an inference you do have something on you by the way you are not answering me.” Officer Diehl also told the juvenile that if he was carrying a small amount of marijuana, such as a “dime bag,” that he would not be in trouble. The juvenile then admitted that he had a small amount of marijuana in his pocket.

7. Officer Diehl retrieved a zip-lock bag containing eleven (11) smaller bags of marijuana from the juvenile’s pocket. The marijuana later tested positive in the amount of 7.3 grams.

8. After the marijuana was seized, the juvenile was put in handcuffs and placed in custody.

9. Witnesses from the assault incident were brought to the area of the 7-Eleven, but were unable to make an identification.

10. The juvenile was transported to headquarters and the juvenile’s cell phone, which was ringing and receiving several messages, was taken into custody.

11. At headquarters, the juvenile’s cell phone was unlocked in order to allow Officer Diehl to contact Ms. Melba Sutton, the juvenile’s mother.

12. At headquarters, Officer Diehl explained to the juvenile that the bags of marijuana found with nothing to use to ingest the marijuana, indicated that he was involved with the dealing or selling of narcotics. The juvenile denied involvement.

13. Officer Diehl requested to examine the juvenile’s phone, explaining “your phone’s going off nonstop and that with your consent I would like to look through it and if there is nothing in there about selling weed then that would help you.” After the juvenile consented to an examination of his cell phone, Officer Diehl discovered a message stating “I just want a nick.”

14. Upon Ms. Sutton’s arrival, the juvenile and his mother signed a “Consent to Search” form relating to the juvenile’s cell phone.

15. Detective Holler discovered several messages on the juvenile’s cell phone from February 26,2011 regarding the delivery of marijuana between the juvenile and another contact.

16. Detective Christie Correa rendered an expert opinion that based on the amount of marijuana, the packaging of the bags and the messages from the juvenile’s cell phone, the marijuana was possessed with the intent to deliver. Detective Correa further testified that even without the messages, in her opinion, the marijuana was possessed for delivery versus personal use. Her opinion was that the juvenile was both a user and a dealer.

DISCUSSION AND CONCLUSIONS OF LAW

A. The interaction between Officer Diehl and the juvenile began as an investigative detention, but rose to the level of a custodial detention

There are three (3) levels of interactions between police and citizens. The first level of interaction is a “mere encounter,” or a request for information. Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa. Super. 2010). A mere encounter does not need to be supported by any level of suspicion and carries no compulsion on behalf of the citizen to stop or respond. The second level of interaction is an “investigation detention.” Id. This level of interaction subjects a suspect to stop and a period of detention, and must be supported by reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot. Id. See also Commonwealth v. Cauley, 10 A.3d 321 (Pa. Super. 2010); Commonwealth v. Blair, 860 A.2d 567 (Pa. Super. 2004). The inquiry is an objective one, namely whether the facts available to the officer warrant a man of reasonable caution and belief that the action taken was appropriate. Blair, 860 A.2d at 573 citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968). An investigative detention does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Id. The final level of interaction is an arrest, or “custodial detention,” and must be supported by probable cause. Id. When a defendant is subject to a custodial detention and questioning, Miranda warnings are required.

An investigative detention occurs when an officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Hayes, 898 A.2d 1089, 1092 (Pa. Super. 2006). First, Officer Diehl received information that a juvenile, matching the description of an individual who was involved in an assault, was at a location less than a block away from the incident. When Officer Diehl arrived at the location and made eye contact with the juvenile, the juvenile immediately put his head down and continued to linger in the store for minutes without making a purchase. Officer Diehl reasonably could have suspected that the juvenile in the store had committed a crime, justifying a brief detention in order to investigate the circumstances. During his conversation with the juvenile, Officer Diehl smelled the odor of marijuana. This odor of a controlled substance certainly provided Officer Diehl with reasonable suspicion to believe that the defendant possessed marijuana and/or that evidence of marijuana use was present on the juvenile. The Superior Court has found that “the odor of marijuana may, in combination with other circumstances, provide probable cause.” Commonwealth v. Trenge, 451 A.2d 701, 708 (Pa. Super. 1982)(finding odor of burning marijuana, in combination with a protruding pipe stem, provided probable cause to arrest appellant without a warrant). See also Taylor v. United States, 286 U.S. 1 (1932)(holdingthat odors alone do not authorize a search without a warrant). Generally, the odor of marijuana, without more, will not provide an officer with probable cause. Trenge, citing Johnson v. United States, 333 U.S. 10 (1948). See United States v. Ramos, 443 F.3d 304, 309 (3d. Cir. 2006)(“Hadthe officers smelled marijuana odor in a crowded bar, they would not be justified to pat down every patron on the claim of some particularized reasonable suspicion.”). Although cases have held that “where an officer is justified in being where he is, his detection of the odor or marijuana is sufficient to establish probable cause,” these cases involved an odor of burning marijuana of a movable vehicle. Notably, there is a distinction to be made between the detection of an odor of marijuana and an odor of burnt marijuana. Here, there was no indication that Officer Diehl detected an odor of burning marijuana and a vehicle was not present.

When Officer Diehl first asked the juvenile about his use, the juvenile did not respond. No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them. Commonwealth v. Cottman, 764 A.2d 595, 598 (Pa. Super. 2000). See also United States v. Lockett, III, 406 F. 3d 207 (3d Cir. 2005)(“It is well established that no seizure has occurred when an officer approaches an individual in a public place, identifies himself as a law enforcement agent, asks questions, asks to search a person’s bag, or explains that he is conducting a narcotics investigation.”). At this point, the interaction fell within the “investigative detention” scenario.

Miranda warnings are necessary where a suspect is in custody and the questioning is by law enforcement officers. Miranda v. Arizona, 384 U.S. 436 (1966). See also Baker, supra. Juveniles, as well as adults, are entitled to be apprised of their constitutional rights pursuant to Miranda. In re R.H., 568 Pa. 1, 5, 791 A.2d 331, 333 (Pa. 2002). These warnings are required prior to a custodial interrogation. Commonwealth v. Housman, 604 Pa. 596, 625, 986 A.2d 822, 839 (2009); Commonwealth v. Smith, 575 Pa. 203, 224, 836 A.2d 5, 18 (2003). If a person is not advised of his rights prior to custodial interrogation, evidence resulting from such interrogation cannot be used against him. Id. However, the fact that a police investigation has focused on a particular individual does not automatically trigger “custody,” thus requiring Miranda warnings. Commonwealth v. Baker, 2011 WL 2520214, *5 (Pa. Super. June 27, 2011) quoting Commonwealth v. Fento, 526 A.2d 784, 787 (Pa. Super. 1987). See also Commonwealth v. Whitehead, 629 A.2d 142 (Pa. Super. 1993).

A police encounter becomes a custodial interrogation when, under the totality of the circumstances, the detention becomes so coercive that it is the functional equivalent of an arrest. Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006). See also Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999). The standard for determining whether an encounter with the police is deemed “custodial” is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated. Commonwealth v. Baker, supra. A person is in custody for Miranda purposes only when he “is physically denied his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation.” Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483 (2009) quoting Commonwealth v. Johnson, 556 Pa. 216, 239, 727 A.2d 1089, 1100 (1999). See also Commonwealth v. Gonzalez, 979 A.2d 879, 887 (Pa. Super. 2009), quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966). See also Commonwealth v. Whitehead, 629 A.2d 142, 145 (Pa.Super 1993). The U.S. Supreme Court has stated that “ultimate inquiry is...whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Id. quoting Stansbury v. California, 511 U.S. 318, 322 (1994). The Supreme Court further stated that its decision in Miranda “[w]as not intended to hamper the traditional function of police officers in investigating crime...General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.” Miranda, 384 U.S. at 477. Although interrogation is police conduct calculated to, expected to, or likely to evoke an admission, Commonwealth v. Bess, 789 A.2d 757 (Pa. Super. 2002), not every statement made by an individual during a police encounter constitutes an interrogation. Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008). All the circumstances surrounding the encounter must be considered to determine whether a seizure has occurred. Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super. 2008). Several factors to consider include the following:

[T]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer’s demeanor and tone of voice’ the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked.

Commonwealth v. Boswell, 554 Pa. 275, 284, 721 A.2d 336, 340 (1998). See also Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008) (factors to consider include the cause for the detention, the detention’s length, the detention’s location, whether the suspect was transported against his or her will, whether physical restraints were used, whether the police used or threatened force, and the character of the investigative methods used to confirm or dispel the suspicions of the police). Additionally, the determination of whether a reasonable person would have believed that he was free to leave becomes an essential element. It has been frequently explained:

To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave. In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained. In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.

Commonwealth v. Charleston, 16 A.3d 505, 514(Pa.Super.2011) citing Commonwealth v. Strickler, 563 Pa. 47, 58-59, 757 A.2d 884, 888-890 (2000). See also Commonwealth v. Turner, 772 A.2d 970, 973 (Pa. Super. 2001).

Here, the juvenile was not in custody as defined in Miranda when he was asked basic questions by Officer Diehl. The determinative question is, however, when Officer Diehl asked questions and made statements about the juvenile’s use and possession of marijuana, whether that changed the character of the interaction to custodial. When Officer Diehl first made eye contact with the juvenile, the juvenile looked down and then turned his back towards the officer. At the time, the juvenile had a bag in his hand which may have been a recent purchase. Officer Diehl waited a few minutes and he noticed the juvenile was not leaving the store. Officer Fitzsimmons asked the juvenile to “come here for a minute,” to which the juvenile responded. Officer Diehl, Sergeant Edward Fitzsimmons and three (3) to four (4) other officers were present outside of the store. This type of police presence would only heighten a juvenile’s anxiety. Additionally, the juvenile was told that he matched the description of an individual involved in an assault that the officers were currently investigating. Although the juvenile was not handcuffed or physically restrained, he was peppered with questions resulting in these charges.

Officer Diehl pointed questions and made statements to the juvenile indicating he believed the juvenile possessed marijuana. Officer Diehl told the juvenile that he can “make an inference you do have something on you by the way you are not answering me.” The juvenile reluctantly admitted to smoking marijuana. Officer Diehl continued his conversation and made a statement to the juvenile that if he was carrying a small amount of marijuana, such as a “dime bag,” that he would not be in trouble. The juvenile then admitted that he possessed a small amount of marijuana in his pocket. While the initial questions were general, the clear intent of the remaining questions was to obtain incriminating admissions from the juvenile. The type of investigation changed from an investigation regarding the initial assault to a marijuana investigation. During the interaction, the odor of marijuana did not provide Officer Diehl with probable cause to search the juvenile. The statements and promises made by Officer Diehl, thereafter, changed the character of the interaction from an investigatory detention to a custodial interrogation. The juvenile was in custody and not issued Miranda warnings when he made statements regarding his use and possession of the marijuana.

The Commonwealth has the burden to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Hernandez, 892 A.2d 11, 13 (Pa. Super. 2006). But see Pa.R.J.C.P. 350. The Commonwealth has failed to meet its burden and the statements made to Officer Diehl must be suppressed. Consequently, the juvenile’s confession and the results of the search of the juvenile’s cell phone should be excluded because they constitute “fruits of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471 (1963)(holding evidence acquired by the police through the exploitation of, or by means of, conduct unlawful under the Fourth Amendment is inadmissible in a criminal prosecution); See also Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super. 2011).

ORDER

And now, July 28, 2011, upon consideration of the juvenile’s motion to suppress and hearing held in this matter on June 29,2011; upon further consideration of the “memorandum of law in support of juvenile’s motion to suppress” submitted by counsel for the defendant on July 15, 2011;

It is hereby ordered that the motion to suppress is granted.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(31).

      . Commonwealth Exhibit 1.

      . Commonwealth Exhibit 2.

      . See United States v. Nelson. Jr., 2006 WL 2711743 (E.D. Pa. September 19, 2006)(finding the “odor of burnt marijuana coming from within the vehicle..a fresh odor” provided probable cause for a search.). See also Commonwealth v. Stainbrook, 324 Pa. Super. 410, 414, 471 A.2d 1223, 1225 (1984)(holding officer was justified in conducting a search of vehicle when he observed furtive behavior and detected the odor of burning marijuana); Commonwealth v. Pullano, 440 A.2d 1226 (Pa. Super. 1982)(finding officers that smelled a strong odor of burning marijuana and had heard noises suggesting a party was in progress, had probable cause to make an arrest); Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super. 1009)(recognizing that an odor may be sufficient to establish probable cause for a search of an automobile, which had been legitimately stopped for an unrelated vehicle code violation); Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975)(finding probable cause was established where officer observed marijuana seeds and leaves in plain view in car and noted a very strong odor of marijuana).


author: SAYLOR, J.,

text:
    Dietrich v. Buy-Rite Liquidators, Inc.

      C.P. of Northumberland County,
    No. CV-2011-700

      David B. Dowling, for plaintiff.

      JoAnne E. Kinzel, for defendant.
    February 9, 2012
   SAYLOR, J.,

Presently before the court is defendant’s motion to compel discovery, seeking a full and complete response to a request that plaintiff provide his cell phone bill for the date of the accident. According to plaintiff’s complaint, this action relates to an incident which occurred on September 19,2009, when plaintiff was shopping at defendant’s grocery outlet and while proceeding down the aisle way, turned to his left at an opening in the shelving units and tripped over an empty wooden pallet, causing him to break his upper left arm and injure his shoulder.

Defendant’s contention in support of this request is that plaintiff tripped over the pallet because he was not paying attention, and the cell phone records are sought to determine if perhaps plaintiff was on the phone at the time of the accident, thus explaining why he did not see what defendant describes as an open and obvious condition. Defendant also argues that the request is narrowly tailored and not overly burdensome, as all that is sought is the record from a single day. Plaintiff objects to this request as irrelevant and violating plaintiff’s right to privacy, as there has been no indication that plaintiff was on the phone at the time of the accident, and plaintiff has responded, under penalty of perjury, that he was not using his cell phone at the time of the accident.

I

At the outset, plaintiff contends that the request for these records violates his right to privacy. At the time of argument, defendant further restructured its request to the one-hour time frame of 7:45 a.m. until 8:45 a.m. in relation to the general time of the accident, referred to as approximately 8:10 a.m., when plaintiff entered the business (Paragraph 4 of the complaint). However, the request before this court, as outlined in the motion to compel, is paragraph 11 of the request for production of documents, which states: “Your cell phone bill for the date of the accident.”

Plaintiff correctly notes that the Pennsylvania Superior Court has held that the Pennsylvania Constitution recognizes an individual’s right to privacy regarding numbers dialed by a person on their telephone. In Commonwealth v. Beauford, 475 A.2d 783, 791 (Pa. Super. 1984), the Superior Court stated:

... we are convinced that a person picking up a telephone in his home or office fully expects that the number he is about to dial will remain as private as the contents of the communication he is about to have. That number provides a strong, sometimes conclusive inference as to whom is being called, unquestionably a private matter. The caller certainly evidences no intention to shed his veil of privacy merely because he chooses to use the telephone to make private contacts. In modern-day America the telephone call is a nearly indispensable tool used to conduct the widest range of business, government, political, social, and personal affairs...In any case we do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact they are talking to one another as in what they say to each other. Id. at 789.

Several years later, the Pennsylvania Supreme Court, in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) reviewed the issue of whether Beauford was properly decided by the Superior Court. In approving of the Beauford decision, the Melilli court noted:

While we remain cognizant of the appearance that federal standards allow greater latitude in law enforcement, it is clear to us that Beauford represents the marked trend of our state law to bring intrusions into telephone communications within the confines of an expectation of privacy under the State Constitution and thereby be subject to the requirements demonstrating probable cause...In Beauford, the Superior Court intended to equate telephone numbers with other forms of telephone communication which are regarded as private. Telephone activities are largely of one piece, and efforts to create distinctions between numbers and conversational content are constitutionally untenable in our view. Melilli at 1258-1259.

Recently, the Superior Court again considered whether an individual had an expectation of privacy in their cell phone records in Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010). Therein, the Superior Court reiterated: “It is clear after Beauford, that, under the Pennsylvania Constitution, an individual has a reasonable expectation of privacy in his own cellular telephone records.” Id. at 1272-1273.

Accordingly, in view of the case law clearly establishing an individual’s right to privacy in their cell phone records, defendant’s blanket request for the plaintiff’s cell phone records for the date of the accident, without any factual evidence or other indicia of possible relevance, is an improper intrusion upon plaintiff’s privacy.

II

The inquiry does not stop with the foregoing analysis of the constitutionally protected privacy interests in cell phone records as defendant contends redaction of the cell phone numbers will fully protect plaintiff’s concerns in this regard. At argument, defendant indicated it would amend to request only the time and duration of any incoming or outgoing calls during the relevant period of time, and that plaintiff could redact the phone numbers therein. Nonetheless, this court concludes that such a request is still not proper.

In response to defendant’s amended request, plaintiff urged this court to consider guidance found in several trial court cases relating to discovery of information on social networking websites, including the opinion of the undersigned entered in the case of Zimmerman v. Weis Markets, No. CV-09-1535, 2011 WL 2065410 (Pa. Com. Pl. Northumberland, May 19, 2011). In Zimmerman, the undersigned found that based on a review of the publicly accessible information found on the personal injury plaintiff’s social networking websites, there was a reasonable likelihood of additional relevant and material information on the non-public portions of these sites. Accordingly, this court granted the defendant’s motion to compel access to these sites with respect to information that plaintiff had voluntarily made available. However, this court cautioned:

[Tjhis [the holding that Facebook pages could be discoverable] should not be construed as an entitlement to this type of information in every personal injury case where damages are claimed, i.e. a carte blanche entitlement to Facebook and MySpace passwords, user names and log in names as part of a discovery request by way of interrogatories or request for production of documents, as that issue is not before the court at this time. Generally, this court is of the view that a motion for this special type of discovery must be made with allegations of some threshold showing that the publicly accessible portions of any social networking site contain information that would suggest that further relevant postings are likely to be found by access to the nonpublic portions. See generally McCann v. Harleysville Insurance Company, 78 A.D.3d 1524 (N.Y.S. 2d 2010). As noted herein and in Romano [907 N.Y.S. 2d 650 (Suffolk Co. 2010)], a review of the publicly accessible portions of the Facebook and MySpace sites revealed relevant information, and thus, it was reasonable to expect that further evidence pertinent to the case would be found in the non-public portions of these sites. There must be some factual predicate for the examination of the non-public portions of social networking sites. So called “fishing expeditions” will not be authorized. Zimmerman at footnote 8.

The plaintiff in the case at bar also directed this court to Arcq v. Fields, et al., Civil Action No. 2008-2430 (Pa. Com. Pl. Franklin, December 7, 2011), which discussed a similar request for access to social networking website information. The court in Arcq, after reviewing the Zimmerman case and McMillen v. Hummingbird Speedway Inc., 2010 WL 4403285 (Pa. Com. Pl. Jefferson, September 9, 2010), denied the discovery request pending before it, noting that no basis was given for the requested discovery, and indeed the defendant did not even seem to know if plaintiff was in fact a member of any social networking websites.

Plaintiff also relies upon Morano v. Slattery Skanska, 846 N.Y.S. 2d 881 (Sup. Ct. Queens Co., 2007), a case involving a motor vehicle accident, where a subpoena duces tecum was issued upon the plaintiff’s cell phone provider for her cell phone records at the time of the accident. That court observed, by way of dictum, that in the event there is no evidence whatsoever of cell phone usage during the relevant time:

...it is the opinion of the court, that the mere fact that a defendant was in the possession of a cell phone at the time of an accident, without any witness testimony as to it being used at that time, would not entitle the plaintiff to said defendant’s cell phone records, since such a discovery request would amount to nothing more than a fishing expedition, (see Carpio v. Leahy Mechanical Corp., 30 A.D.3d 554, 816 N.Y.S.2d 762; Auerbach v. Klein, 30 A.D.3d 451, 816 N.Y.S.2d 376).

The conclusion of the Morano court is sound. Without some indicia that a cell phone was being used at the time of the accident here, the blanket request, even for records redacted as far as the numbers called or calls received, cannot be reasonably calculated to lead to the discovery of admissible evidence, as no basis at all supports the request. See Pa.R.C.P. 4003.1(b).

To hold otherwise would grant unbridled access in every personal injury case to the cell phone records of other parties. There is also nothing unique about defendant’s contention here that the accident possibly occurred because of alleged inattentiveness on the plaintiff’s part. Just about every accident, whether it be a premises liability claim or a motor vehicle accident, includes some element of inattentiveness on someone’s part, somehow or somewhere. In this court’s view, the discovery rules, even if broadly construed, do not countenance that in every negligence case a defendant can pro forma include in its stock discovery arsenal a request for cell phone records, even if redacted, for the date of the accident. Such a request in every case would be unduly burdensome to have a party and counsel go through the hoops with his or her phone service provider to obtain access to records that are likely several years old.

As noted in Zimmerman, supra, some additional “factual predicate for the examination” is necessary under the discovery rules, as “fishing expeditions” will not be authorized. Zimmerman, supra, at footnote 8. The questionable relevance, the privacy rights, and the undue burden imposed on plaintiff are all too substantial to not give greater weight against disclosure, where defendant’s request is based only on assumption or surmise.

Accordingly, based on the foregoing, the following order is hereby entered:

ORDER

And now, February 9, 2012, after argument and upon due consideration of the briefs submitted by the respective parties, defendant’s motion to compel is hereby denied.

      . Defendant’s request for production of documents, paragraph 11.

      . Plaintiff’s verified response to defendant’s request for production of documents, paragraph 11, was as follows: “plaintiff specifically objects to this request as irrelevant. Without waiving said objection, plaintiff was not using a cell phone when he was injured.” Discovery is in the earliest stage, as depositions of the parties have not yet been undertaken.

      . The precise issue before the court in Benson, however, was whether a person had a reasonable expectation of privacy in the cell phone records of a third party. The Benson court held that the ruling in Beauford did not extend such protection to a regular user of a phone owned by another.

      . Interestingly, in the Morano case, the plaintiff produced an affidavit that he observed the defendant with an object in her hand held to her head immediately prior to the accident. Based on this affidavit, the Morano court conducted an in camera review of the cell phone records and disclosed the times and duration of the calls made during the relevant time period, and ordered defendant to disclose the numbers that were called. See also Detraglia v. Grant, 890 N.Y.S.2d 696, 697-98, 68 A.D.3d 1307, 1308 (Sup. Ct. App. Div. 2009)(permitting discovery of cell phone and internet usage records because the record contained information that the defendant may have been distracted by an electronic device immediately prior to the accident).

      . An examination of the undersigned’s own account online with one of the largest cell phone providers, Verizon Wireless, indicates that these types of records are available online for only a period of twelve months. It is unclear how older records are obtained.


author: ZULICK, J.,

text:
    Herrera v. Papillion

      C.P. of Monroe County,
    No. 7308 CV 2011

      James T. Mulligan, Jr., for plaintiffs.

      Steven N. Cherry, for defendant Papillion and Papillion Contracting Inc.

      James L. Goldsmith, for Remax Crossroads.

      Patrick J. Boland, for Better Homes & Gardens.

      Marc B. Zingarini, for Safe Guard Home Inspections.
    January 13, 2012
   ZULICK, J.,

Plaintiffs, Rene A. and Judith Herrera, filed an amended complaint against defendants, Marvin Papillion, individually and d/b/a Papillion Contracting, Inc. (“Papillion”), Better Homes and Gardens R.E., Remax Crossroads, and Safe Guard Home Inspections on October 6, 2011 alleging damages stemming from the sale of a home that had water infiltration problems. Papillion filed preliminary objections to the Herreras’ amended complaint and a brief in support of the preliminary objections. The Herreras filed an answer to the preliminary objections and brief in opposition. Both parties presented argument before the court on January 3, 2012.

DISCUSSION

Pennsylvania rule of civil procedure 1028(a)(4) allows any party to file preliminary objections to any pleading on the grounds of “legal insufficiency of a pleading (demurrer).” Pa. R. Civ. P. 1028(a)(4). When filing preliminary objections in the nature of a demurrer the defendant admits, as true, all well-pled facts in the complaint and any reasonable inferences to be drawn therefrom, but not the pleader’s conclusions or averments of law. See Savitz v. Weinstein, 395 Pa. 173, 174, 149 A.2d 110, 111 (1959) (quoting Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895, 896 (1953)); 220 P ’ship v. Phila. Elec. Co., 650 A.2d 1094, 1096 (Pa. Super. 1994) (citing Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992)).

A “preliminary objection in the nature of a demurrer should not be granted if the allegations of the complaint state a cause of action under any theory of law.” Packler v. State Employes ’Ret. Bd., 470 Pa. 368, 371, 368 A.2d 673, 675 (1977). In determining whether the factual averments contained in the complaint sufficiently state a cause of action, all doubts are resolved in favor of sufficiency of the complaint. See Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super. 1984). Accordingly, a preliminary objection will only be sustained and a complaint dismissed only in cases that are clear and free from doubt. See Cianfrani v. Commonwealth, 479 A.2d 468, 469 (Pa. Super. 1984).

I. Cause of action by plaintiff, Judith Herrera, against defendant, Papillion

Although not specifically raised in the preliminary objections, Papillion, in his brief in support of his preliminary objections and in oral argument before the court, argues that Mrs. Herrera has not raised an actionable claim against him because she was not party to the contract. In response, the Herreras argue that because they were married at the time Mr. Herrera signed the contract, Mrs. Herrera has an “equitable interest” in the contract. The Herreras have not offered any case law to support this argument and the court is not aware of any theory that would give Mrs. Herrera standing in this case. As such, Mrs. Herrera is dismissed as a plaintiff as to counts I-IV of the amended complaint.

II. Breach of contract claim

Papillion also contends that the Herreras have failed to sufficiently plead a cause of action for breach of contract. “A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999) (citing Gen. State Auth. v. Coleman Cable & Wire Co., 365 A.2d 1347, 1349 (Pa. Cmwlth. 1976)). Although every contract term must not be stated in complete detail, every element must be specifically pleaded. See CoreStates, 723 A.2d at 1058 (citing Snaith v. Snaith, 422 A.2d 1379, 1382 (Pa. Super. 1980)).

The Herreras aver the existence of a contract between Mr. Herrera and Papillion in their amended complaint and attach a copy of the contract, thus satisfying the first required element. The Herreras also aver, generally, various items of property damages. However, the Herreras make no reference to any specific provision(s) of the contract that imposes an obligation or how a breach of such an obligation resulted in the damages listed. Instead, the Herreras aver that Papillion “knew that the property . . . had a water infiltration problem and failed to disclose same to [the Herreras].” Amend, compl. ¶ 22. This does not specify what obligation was imposed by the contract. As such, count I-breach of contract fails to sufficiently plead a cause of action and Papillion’s preliminary objection will be sustained. Mr. Herrera will be given leave to amend the complaint within twenty days to specifically plead what provision in the contract imposes a duty on Papillion.

III. Negligence Claim

Mr. Papillion also objects to the Herreras’ negligence count. He contends that the Herreras’ negligence claim is barred by (1) the gist of the action doctrine and (2) the economic loss doctrine. In the alternative, Papillion contends that particular phrases contained in paragraphs 27, 27(e), and 27(f) of the amended complaint are general allegations that fail to apprise Papillion of the nature of the Herreras’ claims and, therefore, should be stricken.

Under Pennsylvania law, the gist of the action doctrine bars “plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. 2002) (citing Bash v. Bell Tel. Co. of Pa., 601 A.2d 825, 829 (Pa. Super. 1992), superseded on other grounds by rule, Pa. R. Civ. P. 341). Put another way, “the wrong ascribed to the defendant must be the gist of the action, the contract being collateral.” eToll, 811 A.2d at 14 (quoting Bash, 601 A.2d at 829). The word

“[gjist” is a term of art in common law pleading that refers to the essential ground or object of the action in point of law, without which there would be no cause of action... The “gist of the action” test then, is a general test concerned with the “essential ground,” foundation, or material part of an entire “formal complaint” or lawsuit.

eToll, 811 A.2d at 15 (quoting Am. Guar. & Liab. Ins. Co. v. Fojanini, 90 F. Supp. 2d 615, 622-23 (E.D. Pa. 2000)).

Accordingly, the distinction between tort and contract actions is particularly relevant to the determination of whether a plaintiff’s claim sounds properly in tort or if it is merely a re-casting of a breach of contract claim through simple allegations of wanton, careless, or negligent acts by the defendant. See Bash, 601 A.2d at 829 (“A claim ex contractu cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done. ”) (citation omitted). An action in tort arises from a breach of duty that is imposed by the law as a matter of social policy, whereas an action in contract arises only from the breach of a duty imposed by a mutual agreement amongst parties. See id. (citation omitted). “In other words, a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.” eToll, 811 A.2d at 14 (citation and internal quotation marks omitted).

Here, the “essential ground” or “foundation”’ of the Herreras’ claim is the sale agreement. Without that agreement, there is no other allegation of any duty owed to the Herreras by Papillion. Papillion’s obligation to build a home in a workmanlike manner (as the Herreras characterize it) arises solely from the sale agreement. The contract is central to their lawsuit, not collateral. The negligence claim, therefore, is improper.

The Herreras assert that Papillion’s reliance on the gist of the action doctrine is misplaced in this case and the court should instead look to the line of cases that use the nonfeasance/misfeasance distinction in order to determine whether the gist of the action doctrine even applies. In support of this, the Herreras cite Grode v. Mut. Fire, Marine, & Inland Ins. Co., 623 A.2d 933 (Pa. Cmwlth. 1993). However, the Herreras misinterpret the law on this point. In Grode, the court explained that two lines of reasoning exist in Pennsylvania on this particular issue. See Grode, 623 A.2d at 935, n.3. The first, as Papillion argues, is the gist of the action doctrine and the second is the distinction between nonfeasance and misfeasance as set out in Raab. See id. The court specifically noted that these are two distinct, albeit similar, methods with which the courts have analyzed whether a tort claim arising from a contractual relationship is proper. See id. (noting case law in support of both lines of reasoning “requir[e] at bottom an analysis of how much the claims in the pleadings relate to the contracts involved”). Rather than adopting one line of reasoning to the exclusion of the other, the Grode court simply chose to apply the Raab case law because “the rationales are so close, [and] the necessary analysis can be performed under Raab, and...the Raab rationale has been cited and employed most often.” Id.

However, the superior court has abandoned this line of reasoning as inadequate and possessing no precedential authority. See Phico Ins. Co. v. Presbyterian Med. Servs. Corp., 663 A.2d 753, 757 (Pa. Super. 1995) (abandoning Raab’s misfeasance/nonfeasance rationale and instead applying Bash is “gist of the action” rationale). Accordingly, the court declines to apply that rationale in this case.

Because of the disposition of the Herreras’ negligence claim, the court will not address Papillion’s additional arguments in support of his preliminary objections arising under this claim.

ORDER

And now, January 13, 2012, after consideration of the preliminary objections of defendant, Marvin Papillion, individually and d/b/a Papillion Contracting, Inc. (“Papillion”), and the answer of plaintiffs, Rene A. Herrera and Judith Herrera, and following oral argument, it is ordered as follows:

1. Plaintiff Judith Herrera’s claims against defendant, Marvin Papillion, individually and d/b/a Papillion Contracting, Inc., are dismissed.
2. Defendant Papillion’s preliminary objection averring failure to state a cause of action under a breach of contract theory is sustained and plaintiff, Rene A. Herrera, is granted leave to file a second amended complaint within twenty (20) days of this order specifically stating which provision(s) of the contract gave rise to an obligation; and
3. Defendant Papillion’s preliminary objection as to count II — negligence of the amended complaint is sustained and this count is stricken, in its entirety, with prejudice.

      . Papillion does, however, broadly aver in his preliminary objections that there has been a failure by the plaintiffs to establish the required elements of a cause of action for breach of contract. The Herreras have not complained about Papillion’s technical failure to specifically raise the issue in his preliminary objections and have responded in their brief to this objection. Therefore, the court will address the objection on its merits.

      . The nonfeasance/misfeasance distinction tests whether the cause of action arises from improper performance of a contractual obligation (misfeasance) rather than a mere failure to perform a contractual obligation (nonfeasance). See Raab v. Keystone Ins. Co., 412 A.2d 638, 639 (Pa. Super. 1979). A tort cause of action arising from a contractual relationship, therefore, must allege misfeasance to survive. See id.