IN THE COURT OF COMMON PLEAS OF NORTHAMPTON … · PAUL TAGLIATERRA, : : Plaintiff, : No....

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA

CIVIL DIVISION

PAUL TAGLIATERRA, : :

Plaintiff, : No. C-48-CV-2009-2409 :

v. : :

PENNSYLVANIA STATE POLICE, : PENNSYLVANIA STATE TROOPERS :

ASSOCIATION, and BRUCE EDWARDS, : :

Defendants. :

OPINION OF THE COURT

This matter is before the Court on the preliminary objections of all

Defendants to Plaintiff’s Complaint, wherein he alleges a cause of action

pursuant to the Pennsylvania Human Relations Act (PHRA) against Defendant

State Police (Police) and a cause of action for a breach of the duty of fair

representation against Defendants Pennsylvania State Troopers (Troopers) and

Bruce Edwards (Edwards).

Plaintiff claims that he was wrongfully terminated from the force of the

Pennsylvania State Police as a result of his having had a prescription drug

addiction, which Defendant Police wrongfully perceived to be a disability. All

Defendants make various preliminary objections in the nature of demurrers,

motions to strike, and motions for more specific pleadings. This matter was

placed on the June 1, 2010 Argument List and was assigned therefrom to the

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Honorable Paula A. Roscioli for decision. Oral argument was presented by all

parties, and briefs were filed by all parties.

I. Factual and Procedural Background

Fairly summarized, the relevant facts of this case, as presented by the

Plaintiff in his third Amended Complaint, are as follows: Plaintiff is a former

Pennsylvania State Trooper, having been employed by the Defendant

Pennsylvania State Police Department. He was so employed for over fourteen

(14) years. During his tenure as a State Trooper, Plaintiff was injured on the job

and underwent surgery for a hernia. Following that surgery, he began taking

Vicodin and became addicted to said drug. He later went through a

rehabilitation program, which he completed in November 2006. In May 2007,

Plaintiff resigned his position with the State Police. He asserts that he was

constructively discharged, as he was told that he should retire because of his

addiction. Plaintiff asserts that this constructive discharge constituted disability

discrimination, in violation of the Pennsylvania Human Relations Act (PHRA).

Plaintiff further asserts that his collective bargaining rights were violated by

Defendant Pennsylvania State Troopers Association, his union, in that they

refused to arbitrate the matter.

As presented by Defendant Police, the lengthy procedural history of this

case is as follows: This action was first initiated in federal court in March 2008.

In that Complaint, Plaintiff alleged a cause of action for violation of the federal

due process clause and intentional infliction of emotional distress. In response

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to Defendants’ motions to dismiss, Plaintiff filed an Amended Complaint, without

leave to do so, in June 2008. In October 2008, the federal court issued an Order

permitting the amendment, to which all Defendants again filed motions to

dismiss. Also in October 2008, Plaintiff moved for voluntary dismissal of the

case without prejudice, having determined to pursue state law claims in the

Court of Common Pleas. In November 2008, the federal court accordingly

dismissed the case without prejudice.

In March 2009, Plaintiff filed his Complaint in the Northampton County

Court of Common Pleas. Defendant Police thereafter removed the action to

federal court, where all defendants again filed motions to dismiss. In response,

Plaintiff filed an Amended Complaint, to which all Defendants again filed

motions to dismiss. In April 2009, Plaintiff filed a motion to remand. Thereafter,

he sought to file a second Amended Complaint. He was at first denied the

opportunity to do so without leave of court, but sought and was granted leave,

and then filed that pleading in June 2009. The next day, the federal court filed

an Order remanding the second Amended Complaint for want of jurisdiction.

Following remand to the Northampton County Court of Common Pleas, all

Defendants filed preliminary objections to Plaintiff’s second Amended Complaint.

In response, Plaintiff filed the instant third Amended Complaint, without seeking

leave of court or consent of the Defendants. It is to this pleading that

Defendants currently assert preliminary objections.

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II. Discussion

A. Preliminary Objections of Defendant Police

1. First Preliminary Objection

The first preliminary objection of Defendant Police is in the nature of a

demurrer. Defendant asserts therein that Plaintiff’s claim pursuant to the

Pennsylvania Human Rights Act (PHRA) is barred because he has failed to allege

that he timely and properly exhausted his administrative remedies.

In ruling upon preliminary objections in the nature of a demurrer, this

Court must examine the third Amended Complaint and determine whether

sufficient facts have been alleged such that, if those facts were proven, the

Plaintiff would be entitled to relief. Preliminary objections in the nature of a

demurrer admit as true all well-pled relevant facts as well as all reasonable

inferences deducible therefrom, but not conclusions of law or unjustified

inferences, with all doubts resolved in favor of the non-moving party. Aetna

Electroplating Co., Inc. v. Jenkins, 484 A.2d 134 (Pa. Super. 1984). A demurrer

may not be sustained unless the complaint evidences on its face that the claims

contained therein cannot be sustained because the law will not permit recovery.

Chorba v. Davlisa Enterprises, Inc., 450 A.2d 36 (Pa. Super. 1982). In ruling on

a demurrer, a court may not consider factual matters not disclosed in the

record. Id. Judgment should not be entered against a plaintiff if the pleadings

indicate that he could state a better case by amendment. Id.

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In order to pursue a PHRA claim in the courts of this Commonwealth, an

individual must first exhaust his or her administrative remedies, as provided by

the PHRA, 43 P.S. § 951 et seq. Prior to pursuing his or her claim in a court, an

aggrieved individual must file a charge of discrimination with the Pennsylvania

Human Relations Commission (PHRC). Clay v. Advanced Computer Applications,

Inc., 559 A.2d 917 (Pa. 1989). This charge must be filed within 180 days of the

last instance of an alleged discriminatory act. 43 P.S. § 959(h).

The PHRC has exclusive jurisdiction over all charges of discrimination for

one (1) year. 43 P.S. § 962(c)(1). The individual may also file a charge of

discrimination with the federal Equal Employment Opportunity Commission

(EEOC), for violation of the Americans with Disabilities Act.1 If the EEOC

receives a charge of discrimination, it must forward same to the PHRC, and a

charge filed with the EEOC constitutes a charge timely filed with the PHRC if

filed within the time period prescribed by the PHRA. Lukus v. Westinghouse

Elec. Corp., 419 A.2d 431 (Pa. Super. 1980); Vincent v. Fuller Co., 616 A.2d

969 (Pa. 1992). If it does not resolve the matter in that period of time, the

PHRC must notify the individual, via what is commonly known as a “right-to-sue

letter”. 43 P.S. § 962(c)(1). Thereafter, the individual may file a complaint in

court. 43 P.S. § 962(c)(1). The grievances alleged in the complaint must be

fairly with the scope of the charge filed with the PHRC or EEOC. Antol v. Perry,

82 F.3d 1291 (3d Cir. 1996).

1 Judicial analysis of a PHRA claim is the same as to that of an ADA claim. See, e.g., Taylor

v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999).

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Defendant Police asserts herein that Plaintiff’s claim pursuant to the PHRA

must fail because he has not alleged an exhaustion of administrative remedies.

We agree. It is essential that Plaintiff allege the timely filing of a charge with the

PHRC or EEOC, as a failure to timely file such a charge precludes one from

pursuing judicial remedies. Sharpe v. BW/IP Intern., Inc., 991 F.Supp. 451

(E.D. Pa. 1998). In his third Amended Complaint, while Plaintiff avers that he

has exhausted his administrative remedies by filing a charge with both the

EEOC and the PHRC, Plaintiff has failed to allege any facts which support this

conclusion of law. Namely, while Plaintiff asserts that one year has passed since

he filed his charge, he has not averred the date upon which he filed his charge

so that a determination of timeliness may be made, nor does he allege the

nature of that charge.2 Without that key information, Plaintiff has not pled

sufficient facts which, if proven, would support his cause of action. For this

reason, we sustain the first preliminary objection of Defendant Police and strike

Plaintiff’s PHRA claim. We do so, however, without prejudice, as it appears that

Plaintiff could state a better case by amendment.

While the striking of Plaintiff’s PHRA claim, the only claim against

Defendant Police, technically renders the remainder of that Defendant’s

2 Defendant Police also asserts that Plaintiff’s PHRA claim must fail in part because Plaintiff has

not alleged that he has received his “right-to-sue letter”. This is a misstatement of the law. While

the PHRA provides for the exclusive jurisdiction of the PHRC for a period of one (1) year following

the filing of a charge of discrimination, it is not the case that the PHRC’s failure to timely send

the required notice precludes the complainant from availing himself or herself of the courts after

that year has passed. A complainant’s right to sue accrues after the PHRC has had exclusive jurisdiction for one (1) year, regardless of whether it issues the required notice. Snyder v.

Pennsylvania Ass’n of School Retirees, 566 A.2d 1235 (Pa. Super. 1989).

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preliminary objections moot, we shall nonetheless address them in the interest

of guiding the parties in the event that Plaintiff in fact chooses to amend his

claim against Defendant Police.

2. Second Preliminary Objection

The second preliminary objection of Defendant Police, also in the nature

of a demurrer, alleges that Plaintiff has failed to state a claim for violation of the

PHRA because he has failed to allege sufficient facts which support either of the

essential elements of such a claim. In order to make out a claim for disability

discrimination under the PHRA, as Plaintiff here attempts to do, one must (a)

allege that he is a disabled person, (b) that he was otherwise qualified to

perform the essential functions of the job, with or without reasonable

accommodation, and (c) that he suffered an adverse employment action as a

result of disability discrimination. Gaul v. Lucent Technologies, Inc., 134 F.3d

576 (3d Cir. 1998).

One may be defined as a disabled person if he has “(1) a physical or

mental impairment which substantially limits one or more of [his] major life

activities; (2) a record of having such an impairment; or (3) [was] regarded as

having such an impairment[.]” 43 P.S. § 954(p.1). In the instant matter,

Plaintiff asserts that his employer mistakenly regarded him as disabled, and

thus we will focus our analysis solely on that definition of a disability.

In order to show that an employer regarded him as disabled, one must

demonstrate that the employer either (a) mistakenly believes that he has a

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disability that limits one or more major life activities3, or (b) that the employer

mistakenly believed that the person’s actual, non-limiting impairment

substantially limits one or more major life activities. Sutton v. United Airlines,

Inc., 527 U.S. 471 (1999). “In both cases, it is necessary that [an employer]

entertain misperceptions about the individual – it must believe either that one

has a substantially limiting impairment that one does not have, or that one has

a substantially limiting impairment when, in fact, the impairment is not so

limiting. Id., at 489.

To be “substantially limited in a major life activity” means the person

“must have an impairment that prevents or severely restricts the individual

from doing activities that are of central importance to most people’s daily lives.

The impairment’s impact must also be permanent or long term.” Toyota Motor

Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002).

In his third Amended Complaint, Plaintiff asserts that his PHRA claim

arises “from the perception on the part of the Defendant [Police] that he was

disabled, due to Defendant’s belief that Plaintiff was addicted to drugs.” (¶ 41).

He also asserts that he “was not disabled but was discriminated against based

up on the Defendant’s false perception of his past addiction[.]” (¶ 42). Such

allegations are insufficient to support a cause of action of “regarded as”

disability discrimination under the PHRA.

3 Major life activities include such activities as walking, sleeping, caring for oneself, and

thinking. See, e.g., Verhoff v. Time Warner Cable, Inc., 299 Fed. Appx. 488 (6th Cir. 2008).

The “tasks in question must be central to daily life.” Toyota Motor Mfg., Kentucky, Inc. v.

Williams, 534 U.S. 184, 197 (2002).

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While Plaintiff clearly asserts that his former employer believed that he

was addicted to drugs and that his former employer perceived him to be

disabled, he asserts no facts which support this conclusion. Plaintiff does not

even identify the specific major life activity in regard to which Defendant

supposedly believe him to be substantially limited, as he must. See Taylor v.

Phoenixville School District, 184 F.3d 296 (3d Cir. 1999). Moreover, he does not

allege any facts which would support a finding that Defendant Police regarded

him as being “substantially limited in a major life activity” as a result of his

addiction, nor does he even allege a conclusion as such. He alleges only that

Defendant Police believed him to be disabled as a result of his addiction. This is

not enough. The “mere fact that an employer is aware of an employee’s

impairment is insufficient to demonstrate that the employer regarded the

employee as disabled or that the perception caused the adverse employment

action.” Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996).

Briefly, Plaintiff’s third Amended Complaint also fails to state a claim for

violation for the PHRA in that he makes no mention whatsoever therein that he

was qualified to perform the essential functions of the job, with or without

reasonable accommodation.

Finally, Plaintiff’s claim for disability discrimination must also fail because

he does not allege facts which would support a finding that he suffered an

adverse employment action as a result of being regarded as disabled. In fact,

while Plaintiff makes mention in one instance in his pleading that he was

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constructively terminated (¶ 31), the third Amended Complaint otherwise

reflects that Plaintiff retired and/or resigned his position as a member of the

State Police force. (¶¶ 10, 19, 21).

Even if we were to look only to Plaintiff’s assertion that he was

constructively terminated, we find that he has alleged no facts whatsoever in

support of such a claim. In order to make out a claim of constructive discharge,

an employee must show that his employer permitted “conditions of

discrimination in employment so intolerable that a reasonable person subject to

them would have felt compelled to resign.” Raya and Haig Hair Salon v.

Pennsylvania Human Relations Commission, 915 A.2d 728 (Pa. Cmwlth. 2007)

(quoting Grande v. State Farm Mutual Automobile Insurance Co., 83 F.Supp. 2d

559 (E.D.Pa. 2000)). “Specific intent on the part of the employer to bring about

the discharge is not required; however, to make a showing of constructive

discharge, more than the subjective perceptions of unfairness or harshness or a

stress-filled work environment are required.” Audenreid v. Circuit City Stores,

Inc., 97 F.Supp.2d 660 (E.D.Pa. 2000) (citing Grande, supra.) Plaintiff herein

has simply alleged no facts whatsoever which could lead a finder of fact to

conclude that his work conditions were so intolerable that he reasonably felt

compelled to resign. In point of fact, he has alleged no facts at all regarding his

working conditions.

For all of these reasons, we find that Plaintiff has clearly failed to state a

claim upon which relief may be granted for disability discrimination under the

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PHRA. Therefore, we must sustain the demurrer of Defendant Police as to this

claim. As above, we accordingly strike Plaintiff’s PHRA claim, but do so without

prejudice, as it appears that Plaintiff could state a better case by amendment.

3. Third Preliminary Objection

In its third preliminary objection, Defendant Police asks that this Court

strike Plaintiff’s demand for a jury trial, on the grounds that Pennsylvania law

does not provide for trial by jury on the types of claims asserted. Defendant

Police is correct in this assertion. Our Supreme Court has specifically held that a

plaintiff has no right to a jury trial on PHRA claims. Wertz v. Chapman

Township, 741 A.2d 1272 (Pa. 1999).

In his reply brief, Plaintiff concedes that he is not entitled to a trial by jury

on this claim, and agrees that this preliminary objection should be sustained.

Therefore, we sustain this preliminary objection without further analysis.

4. Fourth Preliminary Objection

In its fourth preliminary objection, Defendant Police asserts that Plaintiff’s

third Amended Complaint should be stricken in its entirety because Plaintiff has

violated Pennsylvania Rule of Civil Procedure 1033 by filing that pleading

without leave of Court or the consent of the Defendants. That rule states:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of the action, correct the

name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before

or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be

made to conform the pleading to the evidence offered or admitted.

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Defendant Police is correct in asserting that Plaintiff filed his third

Amended Complaint without leave of Court and without the filed consent of

either Defendant. In reply to this preliminary objection, Plaintiff asserts that he

has properly filed his third Amended Complaint pursuant to Pa.R.C.P.

1028(c)(1), which rule, being an exception to Pa.R.C.P. 1033, provides that a

party may, as a matter of course, file an amended pleading in response to

preliminary objections.

What Plaintiff apparently fails to have read, however, is the language of

that Rule which clearly states that the amended pleading “may be filed as of

course within twenty days after service of a copy of preliminary objections.”

Pa.R.C.P. 1028(c)(1) (emphasis added). In the instant matter, preliminary

objections were filed to Plaintiff’s second Amended Complaint on June 12, 2009

and June 24, 2009. The certificates of service appended thereto indicate that

each was served prior to it being filed. Therefore, even taking the latter of those

two filing dates as the date from which Plaintiff’s time to file another complaint

ought to be calculated, the last day to so file in accordance with Pa.R.C.P.

1028(c)(1) would have been on or about July 14, 2009. Nevertheless, Plaintiff

did not file his third Amended Complaint until September 28, 2009, the day

before argument on those preliminary objections and far beyond the deadline

established by Pa.R.C.P. 1028(c)(1).

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Where a party is outside the time in which he may file an amendment as

a matter of course, it is within the discretion of the Court to permit that party to

amend his or her pleadings. Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super.

2002). “Amendments are to be liberally permitted except where surprise or

prejudice to the other party will result, or where the amendment is against a

positive rule of law.” Miller v. Stroud Township., 804 A.2d 749, 754 (Pa.

Cmwlth. 2002). Neither Defendant alleges that the amendments herein are

against a positive rule of law, and therefore we must examine whether there

has been surprise or prejudice to either Defendant. For the following reasons,

we find that there has been neither surprise nor prejudice.

In both Plaintiff’s second Amended Complaint and his third, he alleges

various causes of action against Defendant Police, Defendant Troopers, and

Defendant Edwards for breach of the duty of fair representation and a violation

of the PHRA. In the second Amended Complaint, Plaintiff also alleged a cause of

action for intentional infliction of emotional distress against all Defendants. All of

the same basic operative facts were pled in each Amended Complaint.

In response to Plaintiff’s second Amended Complaint, all Defendants filed

preliminary objections. Defendant Police asserted sovereign immunity to

Plaintiff’s claims for intentional infliction of emotional distress and breach of the

duty of fair representation, a failure to exhaust statutory remedies under the

PHRA, and a failure to state a cause of action on any claims against it.

Defendants Troopers and Edwards filed preliminary objections asserting a failure

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to state a cause of action for civil conspiracy or intentional infliction of emotional

distress and a failure to state any causes of action against Bruce Edwards

individually, as well as various motions for more specific pleading and a motion

to strike Plaintiff’s claim for punitive damages on the ground that no outrageous

conduct was alleged. Though he did so untimely, Plaintiff filed his third

Amended Complaint in response to those preliminary objections, attempting to

address those objections therein.

In so doing, Plaintiff made few significant additions to his pleadings.

Paragraphs 1-3 of the second Amended Complaint, which included a statement

on jurisdiction and venue, were eliminated. The claim for breach of the duty of

fair representation was eliminated as against Defendant Police. The same claim

was amended to include the name of Bruce Edwards in the various averments of

fact, as previously reflected only in the caption of that count. Plaintiff eliminated

his statement of damages in his duty of fair representation claim and now seeks

only an order compelling arbitration. He eliminated his intentional infliction of

emotional distress claim entirely. Other changes he made were as follows:

6 3. Defendant, Pennsylvania State Troopers Association (hereinafter “Pa. Assoc.”), is a municipal corporation or

government entity within the Commonwealth of Pennsylvania empowered to establish, regulate and control the government

within the geographical and legal jurisdiction of the Defendant Pennsylvania State Troopers Association, a labor organization

empowered to protect the rights of Pennsylvania State Troopers, with offices located at 3625 Vartan Way, Harrisburg,

Pennsylvania, 17110.

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24. 19. The Plaintiff, at the time of his retirement, only had approximately five years left to able to [sic] obtain his full

pension rights.

26. 21. The Plaintiff believe [sic] and therefore avers, that he had right [sic] to be protected in his job as a Pennsylvania State

Trooper, having worked in that position, which is protected under a collective bargaining agreement and under state law, for over

fourteen years prior to his resignation of May 18, 2007.

32. 27. Defendants SPD and Pa. Assoc. and Bruce Edwards deprived Plaintiff of his contractual collective bargaining

agreement rights as well as his rights arising under Pennsylvania labor law.

37. 32. The failure of the Association and Bruce Edwards to

take any effort whatsoever on behalf of the Plaintiff, despite Plaintiff’s attempt to seek the assistance of the Association, is evidence of collusion between the State Police and the Association.

an intent on the part of said Defendants to ignore Plaintiff’s collective bargaining agreement rights.

40. 35. The Plaintiff believes, and therefore avers, that the

State Police and the Association and Bruce Edwards agreed at least tacitly to “stand down” and take no action to protect the

Plaintiff’s collective bargaining rights in his job arising under state law, and that this convenient arrangement between the State

Police and the Association decision to do nothing further to represent the interests of the Plaintiff is evidence of fraud,

collusion, and complicity between said parties. the breach of the duty of fair representation by said parties.

42. 37. As a direct and proximate result of the aforesaid actions and omissions of the Defendants, the Plaintiff has suffered

the following injuries and losses and is entitled to the following damages[.] severe damage.

52. 41. Plaintiff’s PHRA claim is based upon discrimination

arising from his disability. the perception on the part of the Defendant that he was disabled, due to Defendant’s belief

that Plaintiff was addicted to drugs.

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In addition, Plaintiff added the following paragraphs to his third Amended

Complaint :

42. Plaintiff was not disabled but was discriminated against based upon the Defendant’s false perception of his past addiction,

notwithstanding the fact that the Plaintiff successfully completed his rehabilitation and is no longer addicted to vicodin [sic].

43. Plaintiff exhausted his administrative remedies under the

Pennsylvania Human Relations Act by filing a Charge of Discrimination with the Equal Employment Commission [sic] and

having that charge dual filed with the Pennsylvania Human Relations Commission (“PHRC”).

44. Plaintiff’s case was dual filed with the PHRC and was under

the review of the PHRC for more than a year before this Complaint was filed in Court.

Each of the changes and additions was made either in response to a

preliminary objection to Plaintiff’s second Amended Complaint, or was stylistic.

Given that fact, and that Defendants could only have supposed that an

amended pleading was likely to be filed at some point, Defendants cannot fairly

complain that they are either surprised or prejudiced by the amendment.

Certainly they cannot claim that they are prejudiced by the elimination of claims

against them. At best, Defendant Edwards could claim that he is prejudiced

because averments of fact were amended to add him as a complained-of party,

but given that Plaintiff has discontinued his claims against Defendant Edwards

in response to the most recent preliminary objections, as discussed below, that

claim would be moot and therefore we decline to address it.

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While Plaintiff herein did not in fact make a motion to amend his pleading

as contemplated by the Rule, but simply filed the amendment, the Court may

permit an amendment on its own motion. Delgrosso v. Gruerio, 389 A.2d 119

(Pa. Super. 1978). In light of the similarities of the second and third Amended

Complaint, we find that it is appropriate to do so, and Plaintiff’s third Amended

Complaint should be allowed. Moreover, it does not appear that Plaintiff willfully

failed to comply with Pa.R.C.P. 1033, as he apparently believed that that Rule

did not apply to amended pleadings filed in reply to preliminary objections.

Furthermore, we find that it would be just to permit the amendment. See Lewis

v. Erie Ins. Exchange, 421 A.2d 1214, 1217 (Pa. Super. 1980). Defendant

Police’s fourth preliminary objection is therefore overruled.

However, Plaintiff is directed that he shall not filed further amended

pleadings without prior leave of Court to do so, or absent the filed agreement of

the Defendants. Any failure to comply with this directive will result in the

striking of those amended pleadings with prejudice.

5. Fifth Preliminary Objection

In its fifth preliminary objection, Defendant Police makes a motion to

strike, asking that this Court strike Plaintiff’s third Amended Complaint for

failure to conform to the rules of court, pursuant to Pa.R.C.P. 1028(a)(2).

Specifically, Defendant Police asserts that Plaintiff has failed to conform his

pleading to Pa.R.C.P. 1018.1 (Notice to Defend) and Pa.R.C.P. 1024

(Verification).

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Pennsylvania Rule of Civil Procedure 1018.1 requires that “every

complaint filed by a plaintiff […] begin with a notice to defend[.]” In the instant

matter, Plaintiff failed to append such a notice to his third Amended Complaint.

However, the remedy which Defendant Police suggests for this failure is not that

which is called for. Rather, when a complaint fails to include such notice to

plead, the only result is that no responsive pleading need be filed. See North

Penn Water Authority v. A Certain Parcel of Land Identified by Last Known

Owner and Tax Parcel Number as Michael H. Malin and Dorothy Seimel Malin

(Block No. 052, Unit 043, Tax Parcel No.: 35-00-06040-00-9), 650 A.2d 1197

(Pa. Cmwlth. 1994). Therefore, Defendant’s preliminary objection on this point

is without merit, and must accordingly be overruled.

Pennsylvania Rule of Civil Procedure 1024 requires that pleadings be

verified by one or more of the parties filing the pleadings, unless certain

enumerated circumstances exist, e.g. the party is outside of the jurisdiction of

the Court and his or her verification cannot be obtained in the time allowed for

filing the pleadings. Plaintiff has failed to comply with this Rule, as his third

Amended Complaint does not contain a verification.

While Plaintiff has violated this Rule, we do not find such error to be fatal

to his claims. Where a party fails to verify his pleading or does so in a defective

manner, he should be afforded an opportunity to correct this error by filing an

amended pleading or verification when that error is raised by the other party.

See Lewis v. Erie Ins. Exchange, 421 A.2d 1214 (Pa. Super. 1980). This is

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particularly true in the instant case, where the second Amended Complaint was

not verified by the Plaintiff, neither Defendant objected, and the majority of the

third Amended Complaint is comprised of the same facts as were in the

previous version, as set forth at length above. Where an opposing party fails to

object to a lack of verification, said failure constitutes a waiver. General Mills,

Inc. v. Snavely, 199 A.2d 540 (Pa. Super. 1964).

While we do not consider Defendant to have waived the objection as it

pertains to the third Amended Complaint, in light of the fact that it was

previously waived in regard to the second Amended Complaint, that the third

Amended Complaint varies only slightly from the second, and that a party

should be afforded an opportunity to correct such an error, we overrule

Defendant’s preliminary objection on this point. However, Plaintiff is directed

that any further pleadings he may file shall be verified insofar as the Rule

requiring verification applies, or those pleadings will be stricken. In addition, if

Plaintiff elects not to file a fourth Amended Complaint, he shall verify this third

Amended Complaint within the time set to file a fourth Amended Complaint.

6. Sixth Preliminary Objection

The final preliminary objection of Defendant Police is a motion for more

specific pleading, wherein Defendant contends that Plaintiff has failed to provide

any facts which support the legal conclusion contained in his pleading that he

was “discriminated against based upon the Defendant’s false perception of his

past addiction.” As set forth in our analysis of Defendant’s second preliminary

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objection above, we agree that Plaintiff has failed to set forth sufficient facts to

support his claim that he was discriminated against. Therefore, this preliminary

objection must be sustained.

B. Preliminary Objections of Defendants Troopers and Edwards

1. First Preliminary Objection

In their first preliminary objection, a demurrer, Defendants Troopers and

Edwards assert that Plaintiff has failed to state a cause of action for breach of

the duty of fair representation. Defendant Troopers is a union charged with the

representation of the employment rights of Pennsylvania State Troopers.

Defendant Edwards is the President of that union. Defendants assert that

Plaintiff has not stated a case because Plaintiff merely asserts in his third

Amended Complaint that Defendants failed to take his case to arbitration.

Defendants also assert that Plaintiff had no case to take to arbitration, given

that Plaintiff resigned from his job with the State Police. Furthermore,

Defendants argue, Plaintiff has not asserted the nature of the rights which they

have allegedly violated.

In order to plead a cause of action for breach of the duty of fair

representation sufficient to survive a demurrer, a plaintiff must plead facts,

which, if proven, would support a finding that the defendant union had acted in

bad faith or in an arbitrary or discriminatory manner. Martino v. Transport

Workers’ Union of Philadelphia, Local 234, 480 A.2d 242 (Pa. 1984); Hughes v.

Council 13, American Federation of State, County and Mun. Employees, AFL-

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CIO, 629 A.2d 410 (Pa. 1994). Mere negligence or a refusal to arbitrate, without

more, is insufficient to prove a breach of the duty of fair representation. Vaca v.

Sipes, 386 U.S. 171 (1967) (stating that “a union does not breach its duty of

fair representation […] merely because it settled the grievance short of

arbitration”); Martino, supra. There is no absolute right to arbitration. Ziccardi

v. Commonwealth, 456 A.2d 979 (Pa. 1982).

Upon examining Plaintiff’s third Amended Complaint, we find that he has

not pled sufficient facts to support his claim for breach of the duty of good faith

and fair dealing. Rather, Plaintiff alleges therein that he resigned on May 18,

2007 (¶ 21), that there was a collective bargaining agreement in place

protecting his job (¶ 21), that the union did not take his “matter” to arbitration

(¶ 22), that members of the grievance committee decided not to take his case

to arbitration (¶ 23), that he was not given an opportunity to assert his rights

and was deprived of those rights (¶¶ 24, 27, 30, 31, 32), and that the union did

nothing to protect his rights (¶¶ 32, 34, 35, 36).

These statements fail to state a claim for breach of the duty of fair

representation for several reasons. First, Plaintiff has failed to state what rights

he was allegedly denied, instead making a conclusory statement that his rights

were denied. Next, Plaintiff does not allege facts which set forth the nature of

the grievance which was not taken to arbitration. It appears from some of the

language in the Amended Complaint that Plaintiff claims he was constructively

discharged. However, Plaintiff alleges that he resigned and/or retired from his

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position (¶¶ 10, 19, 21). While he refers in one instance in the pleading to

constructive discharge (¶ 31), Plaintiff sets forth no statements of fact which

would support a finding of constructive discharge, as discussed above, and such

a conclusory statement cannot be considered when ruling on a demurrer.

Most importantly, however, Plaintiff has failed to set forth any facts which

would support a finding that Defendants acted in bad faith, arbitrarily, or in a

discriminatory fashion. While Plaintiff does aver a fraudulent intent on the part

of Defendants (¶ 36), this is insufficient, as he must plead facts which, if

proven, would establish bad faith. See Waklet-Riker v. Sayre Area Educ. Ass’n,

656 A.2d (Pa. Super. 1995). For this reason, we sustain the first preliminary

objection of Defendants Troopers and Edwards and dismiss Plaintiff’s claim for

breach of the duty of fair representation. We do so, however, without prejudice,

as again it appears that Plaintiff could state a better case by amendment.

Once again, while the striking of Plaintiff’s fair representation claim

technically renders the remainder of these Defendants’ preliminary objections

moot, we shall address them in the interest of guiding the parties in the event

that Plaintiff in fact chooses to amend his claim.

2. Second Preliminary Objection

In their second preliminary objection, also a demurrer, Defendants

Troopers and Edwards assert that Plaintiff has failed to state a claim upon which

relief may be granted against Defendant Bruce Edwards, President of the

Pennsylvania State Troopers Association, on the grounds that under

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Pennsylvania law no cause of action lies against union officials for a breach of

the duty of fair representation. Falsetti v. Local Union No. 2026, United Mine

Workers of America, 161 A.2d 882 (Pa. 1960).

In response to this preliminary objection, Plaintiff has withdrawn his

separate claim against Bruce Edwards. For this reason, Defendants’ second

preliminary objection is sustained. The caption of the case shall be amended to

reflect that Bruce Edwards is no longer a party to the action, in the event that

Plaintiff elects to file a fourth Amended Complaint.

3. Third Preliminary Objection

Defendants’ third preliminary objections is a motion to strike, made on

the grounds that Plaintiff filed his third Amended Complaint without consent of

the Defendants and without leave of Court, contrary to Pa.R.C.P. 1033. This

preliminary objection is identical in every respect to the fourth preliminary

objection of Defendant Police, addressed above. For the reasons there stated,

this preliminary objection is overruled.

4. Fourth Preliminary Objection

Defendants’ fourth preliminary objection is a motion to strike on the

grounds that Plaintiff failed to include a Notice to Defend with his third Amended

Complaint. Again, this preliminary objection echoes that of Defendant Police,

above. As previously stated, the only result when a party fails to include a

notice to defend is that the opposing party need not file a response. It is not

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grounds for striking the pleading. Therefore, Defendants’ fourth preliminary

objection must be overruled.

5. Fifth Preliminary Objection

Defendants’ next preliminary objection is another motion to strike, on the

grounds that the third Amended Complaint is was not verified by the Plaintiff.

This preliminary objection was also raised by Defendant Police. Therefore

referring the reader to our reasoning above, we find that this preliminary

objection must too be overruled.

6. Sixth Preliminary Objection

The sixth preliminary objection raised by these Defendants is a motion for

more specific pleading, pursuant to Pa.R.C.P. 1028(a)(3), on the grounds that

Plaintiff asserts in his pleading that he was deprived of his “collective bargaining

rights,” but fails to state the nature of those rights. Defendants assert that this

cursory pleading is in violation of Pa.R.C.P. 1019(a), which Rule requires that

the “material facts on which a cause of action or defense is based […] be stated

in a concise and summary form.”

The purpose of this Rule is to ensure that Plaintiff has sufficiently informed Defendant of

the claims to which it will be required to prepare a defense. Weiss v. Equibank, 460 A.2d 271

(Pa. Super. 1983). That is, he “must give the defendants fair notice of the

plaintiff’s claims and a summary of the material facts that support those

claims.” Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002).

Furthermore, “in determining whether a particular paragraph […] has been

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stated with the necessary specificity, such paragraph must be read in context

with all other allegations in that complaint.” Id.

In the instant matter, having reviewed the third Amended Complaint as a

whole, we must agree that Plaintiff has been insufficiently specific in his

pleading. Repeatedly, Plaintiff asserts that he had certain rights, protected by

contract, statute, and/or a collective bargaining agreement, which were denied

by these Defendants. Nowhere in his pleading, however, does Plaintiff assert

what those rights were. One might liken the case to an allegation of breach of

contract where the pleader fails to set forth the nature of the contract. Without

pleading such basic information relating to his claim, Plaintiff has failed to plead

his claim with sufficient specificity, and it would be nonsensical to suppose that

Defendants could prepare a meaningful defense without knowing what rights

they are accused of denying to Plaintiff. For this reason, we sustain Defendants’

sixth preliminary objection and direct Plaintiff that he shall file a more specific

pleading if in fact he chooses to file a fourth Amended Complaint.

7. Seventh Preliminary Objection

In this seventh preliminary objection, Defendants again move for greater

specificity in Plaintiff’s pleading. In this instance, Defendants assert that

Paragraph 36 of Plaintiff’s Complaint is insufficiently specific in that it alleges a

“fraudulent intent” on the part of the union and Edwards, but fails to specify the

factual basis for that allegation. Defendants assert that Plaintiff is therefore in

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violation of Pa.R.C.P. 1019(b), which requires that “averments of fraud or

mistake […] be averred with particularity.”

As a threshold matter, we note that in determining whether fraud has

been alleged with sufficient particularity, we must examine the third Amended

Complaint as a whole. Commonwealth by Zimmerman v. Bell Telephone Co. of

Pennsylvania, 551 A.2d 602 (Pa. Cmwlth. 1988). In order to properly plead a

claim for fraud, a plaintiff may not make a conclusory allegation of fraud but

rather must plead facts to support it. See Borelli v. Barthel, 211 A.2d 11 (Pa.

Super. 1965). He must set forth sufficient facts to permit a defendant to

prepare his defense, and must set forth exact statements or actions which he

asserts constitute fraud. See McGinn v. Valloti, 525 A.2d 732 (Pa. Super. 1988).

Having considered Plaintiff’s third Amended Complaint in its entirety, we

find that he has not set pleaded sufficient facts to satisfy the requirements of

Pa.R.C.P. 1019(b), or indeed any facts which would support a finding of fraud.

Rather, Plaintiff merely asserts that the Defendants had a “fraudulent intent”

with regard to his employment interests. Accordingly, we sustain Defendants’

preliminary objection and direct Plaintiff that he shall file a more specific

pleading if in fact he chooses to file a fourth Amended Complaint.

8. Eighth Preliminary Objection

In this final preliminary objection, Defendants assert that this Court

should strike Plaintiff’s demand for a jury trial, on the grounds that

Pennsylvania law does not provide for trial by jury on the types of claims

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asserted. This preliminary objection was also raised by Defendant Police. Again,

Plaintiff concedes that he is not entitled to a trial by jury on this claim, and

agrees that this preliminary objection should be sustained. Therefore, it too is

sustained without further analysis.

WHEREFORE, we enter the following:

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IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY

COMMONWEALTH OF PENNSYLVANIA CIVIL DIVISION

PAUL TAGLIATERRA, :

: Plaintiff, : No. C-48-CV-2009-2409

: v. :

: PENNSYLVANIA STATE POLICE, :

PENNSYLVANIA STATE TROOPERS : ASSOCIATION, and BRUCE EDWARDS, :

: Defendants. :

OPINION OF THE COURT

AND NOW, this 30th day of June 2010, upon consideration of the

preliminary objections of all Defendants and Plaintiff’s response thereto, it is

hereby ORDERED as follows:

1. The first, second, third, and sixth preliminary objections of Defendant

Pennsylvania State Police are SUSTAINED.

2. The fourth and fifth preliminary objections of Defendant Pennsylvania

State Police are OVERRULED.

3. The first, second, sixth, seventh, and eighth preliminary objections of

Defendants Pennsylvania State Troopers Association and Bruce Edwards

are SUSTAINED.

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4. The third, fourth, and fifth preliminary objections of Defendants

Pennsylvania State Troopers Association and Bruce Edwards are

OVERRULED.

5. Plaintiff is permitted to file an amended complaint within twenty (20) days

of the date of this Order.

BY THE COURT:

______________________ PAULA A. ROSCIOLI, J.

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON … · PAUL TAGLIATERRA, : : Plaintiff, : No....

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