TINNENY v. SCHUYLKILL VALLEY NATURE CENTER
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 1/19/2017. 1/19/2017 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ECHELON PROTECTION AND
ECHELON EMPLOYEE JOHN DOE #1,
ECHELON EMPLOYEE JOHN DOE #2,
ECHELON EMPLOYEE JOHN DOE #3,
SCHUYLKILL CENTER FOR
ENVIRONMENTAL EDUCATION, and
BOARD OF TRUSTEES SCHUYLKILL
CENTER FOR ENVIRONMENTAL
January 19, 2017
This action is brought by pro se plaintiff Mark Tinneny against the Schuylkill Center for
Environmental Education (“SCEE”), Echelon Protection and Surveillance, LLC (“Echelon”), and
other associated defendants. Plaintiff filed two suits—Civil Action Nos. 15-753 and 15-4305—
consolidated in this action before the Court. The Complaints include multiple claims under federal
law: (1) violation of the Fair Housing Act, (2) hostile work environment under Title VII, (3)
violation of the Equal Pay Act, (4) retaliation under Title VII, and (5) violation of the First
Amendment to the United States Constitution, and several state-law claims: defamation, wrongful
discharge, assault, battery, and invasion of privacy.
Presently before the Court are two Motions to Dismiss filed by defendants. For the reasons
that follow, the Court grants in part and denies in part SCEE defendants’ Motion and dismisses
plaintiff’s hostile work environment, Equal Pay Act violation, First Amendment violation,
defamation, and wrongful discharge claims with prejudice. The Court grants Echelon defendants’
Motion in part and dismisses plaintiff’s invasion of privacy claim against Echelon defendant John
Doe #1 with prejudice, and denies the Motion in all other respects.
Plaintiff’s Complaints assert claims against numerous defendants. Plaintiff has named
SCEE, an environmental non-profit organization, and its Board of Trustees as defendants. Also
named as defendants are SCEE’s director, Mike Weilbacher; two members of SCEE’s Board of
Trustees, Tom Landsmann and Binny Meigs; and two SCEE employees, Steve Goin and Anna
Mueser. Additionally, plaintiff has named as defendants Echelon Protection and Surveillance, LLC,
a private security company hired by SCEE, and three John Doe defendants employed by Echelon.
B. FACTUAL BACKGROUND
The facts as alleged in plaintiff’s Complaints are summarized as follows. Beginning on
April 24, 2013, plaintiff was employed by SCEE as a part-time groundskeeper. Compl. in Civil
Action No. 15-753 (“Compl. I”) ¶ 8; Compl. in Civil Action No. 15-4305 (“Compl. II”) ¶ 16. As
part of his employment, plaintiff entered into a one-year residential lease with SCEE for the historic
“Weil House,” located on SCEE’s property. Compl. II ¶ 17.
Plaintiff alleges that SCEE discriminated against him on the basis of his gender.
Specifically, he claims that certain female “30-hour-a-week” employees held the title of “manager,”
and were awarded benefits like paid leave and medical benefits. Plaintiff, also a 30-hour-a-week
employee, was denied those benefits. Compl. II ¶¶ 24–46. Plaintiff was also subjected to a culture
of sexual harassment. He avers that on January 24, 2014, defendant Tom Landsmann, a member of
the SCEE Board, called plaintiff a “fucking pussy,” insulted plaintiff’s intelligence, and then used
the same expletives a second and third time. Compl. II ¶¶ 49–59. As punishment for this incident
the Board forbade Landsmann from interacting with employees, Compl. II ¶ 66, though that penalty
was not enforced on at least one occasion. Compl. II ¶¶ 68–72.
On April 17, 2014, plaintiff met with his supervisor, Gregory Sean Duffy. Compl II. ¶ 73.
Plaintiff told Duffy that he planned to file a charge of discrimination with the EEOC. Id. Duffy
responded, “If you do, that will be a problem! I will guarantee that everyone that works here will
hate you.” Compl. II ¶ 75. Shortly after that conversation, plaintiff filed his first charge of
discrimination with the EEOC (EEOC Charge No. 530-2014-03124) on April 24, 2014. Compl. I
¶ 12; id. Ex. A. Plaintiff was subsequently isolated from all SCEE social events, Compl. II ¶ 82, a
rumor began that he was “dangerous,” Compl. II ¶¶ 83, 84, plaintiff was banned from
communicating with the president of the SCEE Board (identified in the Complaint as Wagner) and
Mike Weilbacher (the SCEE director), Compl. II ¶ 87, and he was demoted to a “20-hour-a-week
employee.” Compl. II ¶¶ 90–91.
On June 26, 2014, plaintiff claims that he witnessed Duffy purchase drugs on the grounds
of a preschool at SCEE. Compl. II ¶ 96. Plaintiff notified “two employees of the drug deal, one of
whom, Rick Schubert, was a senior manager,” Compl. II ¶ 98, and sent Weilbacher a copy of a
“tipline report” he had filed with the Philadelphia Police Department, Compl. ¶ 102. Later that
afternoon, Duffy informed plaintiff that SCEE had decided not to renew plaintiff’s lease “for
financial reasons.” Compl. II ¶ 99.
Plaintiff subsequently began picketing on the Weil House property. Compl. II ¶ 117. On
June 26, 2014, SCEE called the police about plaintiff’s protest activities. Id. Plaintiff overheard
defendant Steve Goin tell the police that plaintiff was “mentally ill” and “may be schizophrenic.”
Compl. II ¶ 118. That same day, Weilbacher sent an email to “SCEE parents” stating that plaintiff
was being “closely monitored” and that “[a]s an additional precaution, a boundary has been
established around the house he has inhabited; no visitors, children, or groups are able to access
parts of our property near that boundary.” Compl. II ¶ 123. Defendant Anna Lehr Mueser, wrote a
letter issued that same day repeating Weilbacher’s statement, and claiming that “[w]e are in the
process of evicting the former employee,” who “refuses to leave.” Compl. II ¶ 125. Plaintiff was
officially terminated on July 7, 2014. Compl. II ¶ 104. Plaintiff filed a second charge of
discrimination with the EEOC (EEOC Charge No. 530-2014-03124) on August 19, 2014, alleging
retaliation. Compl. I Ex. B.
On July 10, 2015, SCEE obtained a Permanent Injunction Order against Tinneny from the
Court of Common Pleas, Philadelphia County. Doc. No. 1, at 100. That injunction, inter alia,
forbids Tinneny from protesting at the Weil House, and trespassing on SCEE property (excluding
the Weil House and vehicular ingress and egress). SCEE hired Echelon Protection and Surveillance,
LLC (“Echelon”) “to protect [SCEE’s] interests under the injunction.” Echelon Br. at 7.
While providing those security services, Echelon employees (John Doe defendants # 1–3)
attempted to run plaintiff over with their vehicles, Compl. II ¶¶ 128, 141, and pointed a loaded
firearm in his direction. Compl. II ¶¶ 135–137. John Doe # 3’s vehicle “grazed Plaintiff’s leg,
causing him to fall back.” Compl. II ¶ 142. Finally, John Doe # 1 “hid[ ] behind trees and bushes,
taking pictures of Plaintiff.” Compl. II ¶ 129.
C. PROCEDURAL BACKGROUND
Tinneny is the plaintiff in two suits, both of which are presently before the Court in one
consolidated action. At the time the actions were filed, plaintiff was represented by counsel.
The first case, Civil Action No. 15-753, was originally filed in federal court on February 17,
2015. In that action Tinneny asserts one claim under the Fair Housing Act for retaliatory eviction
against SCEE. On July 14, 2015, Tinneny brought a second action in the Court of Common Pleas of
Philadelphia County, in which he asserted various federal and state claims against all defendants.
Defendants removed that case to federal court on August 5, 2015, and the case was assigned Civil
Action No. 15-4305. The SCEE defendants and Echelon filed separate Motions to Dismiss on
August 12 and 13, 2015, respectively.
On December 9, 2015, plaintiff’s counsel filed a Motion to Withdraw. The Court held a
hearing on January 22, 2016, and granted the Motion. The Court also consolidated the two actions.
Tinneny proceeded to litigate the case pro se. After several delays at Tinneny’s request, the Court,
also at Tinneny’s request, referred the case to the Attorney Panel for Pro Se Plaintiffs in
Employment Cases for appointment of counsel by Order dated May 6, 2016. (Doc. No. 54).
However, no counsel agreed to represent Tinneny.
By Order dated December 6, 2016, at Tinneny’s request, the Court dismissed plaintiff’s Fair
Housing Claim against SCEE with prejudice. (Doc. No. 65). SCEE defendants’ Motion to Dismiss
or, in the alternative, Motion for a More Definite Statement, and Echelon defendants’ Motion to
Dismiss are currently pending before the Court. Tinneny responded to the two Motions on January
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to respond to a
pleading by filing a motion to dismiss for “failure to state a claim upon which relief can be
granted.” To survive a motion to dismiss, the complaint must allege facts that “‘raise a right to relief
above the speculative level.’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A district court first identifies those
factual allegations that constitute nothing more than “legal conclusions” or “naked assertions.”
Twombly, 550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth” and
must be disregarded. Iqbal, 556 U.S. at 679. The court then assesses the remaining “‘nub’ of the
plaintiff[’s] complaint—the well-pleaded, nonconclusory factual allegation[s]”—to determine
whether the complaint states a plausible claim for relief. Id. In an employment discrimination
action, a plaintiff need not fully establish each element of the prima facie case. However, the
complaint must plead facts that “raise a reasonable expectation that discovery will reveal proof of
[the] claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).
Plaintiff is proceeding pro se in this case. “The Court is mindful of the instruction that it
should broadly construe normal pleading requirements when handling pro se submissions.” Scott v.
Com. Dep’t of Pub. Welfare, No. 02-cv-3799, 2003 WL 22133799, at *2 (E.D. Pa. Aug. 28, 2003)
SCEE DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE,
MOTION FOR MORE DEFINITE STATEMENT
SCEE defendants move to dismiss all claims asserted against them pursuant to Federal Rule
of Civil Procedure 12(b)(6).1 For the reasons that follow, the Court concludes that each claim,
except for plaintiff’s retaliation claim under Title VII against SCEE, must be dismissed.
A. HOSTILE WORK ENVIRONMENT – TITLE VII
Plaintiff avers that he was subjected to a hostile work environment on the basis of his
gender, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). To state a claim for
hostile work environment, plaintiff must aver that (1) the employee suffered intentional
discrimination because of membership in a protected class, (2) the discrimination was severe or
pervasive, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would
detrimentally affect a reasonable person in like circumstances, and (5) the existence of
SCEE defendants move in the alternative for a more definite statement under Federal Rule of Civil
Procedure 12(e). The Court treats that alternative request as a Motion for a More Definite Statement
and denies the Motion as the Complaint contains sufficient information to put defendants on notice
of the conduct underlying the claims against them.
responsibility on the part of the employer. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167
(3d Cir. 2013). “[I]solated incidents (unless extremely serious)” are not actionable under Title VII.
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001).
In this case, plaintiff’s Complaint alleges that Tom Landsmann, a member of the SCEE
Board, called plaintiff a “pussy” at least three times on January 24, 2014. Compl. II ¶¶ 51, 57,
59. Plaintiff does not allege any other instances of sexually demeaning harassment by Landsmann
or any other SCEE employee. Accepting these allegations as true, plaintiff has pled a mere “isolated
incident,” Breeden, 532 U.S. at 271, that is neither sufficiently severe nor pervasive to establish a
hostile work environment. The Court concludes that plaintiff’s allegations fail to state a hostile
work environment claim under Title VII. Because amendment would be futile, the Court dismisses
this claim with prejudice.
B. UNEQUAL PAY
Plaintiff avers that he was denied equal benefits for performing equal work compared to
certain female SCEE employees. The Court construes plaintiff’s argument as asserting a claim
under the Equal Pay Act (“EPA”), 29 U.S.C. § 206.2 To state a prima facie claim under the EPA, a
plaintiff must allege facts showing “employees . . . were paid differently for performing equal
work—work of substantially equal skill, effort, and responsibility.” Stanziale v. Jargowsky, 200
F.3d 101, 107 (3d Cir. 2000).
Plaintiff’s Complaint alleges that he was treated differently than four female comparators:
Joanne Donahue, Donna Struck, Melissa Nase, and Claire Morgan. Donahue is not a similarly
situated comparator as plaintiff does not plead that Donahue performed comparable groundskeeper
work, and the Complaint reveals that she held a position that required a greater level of
Construed as a claim under Title VII, the claim fails for the same reason. See, e.g., Hutchins v.
United Parcel Serv., Inc., 197 F. App’x 152, 160 (3d Cir. 2006); Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1087 (3d Cir. 1996).
responsibility. Compl. II ¶ 26. Similarly, Struck is not a similarly situated comparator because the
Complaint states that Struck was “the SCEE Business Manager and point person on HR-related
matters . . . ,” not a groundskeeper. Compl. II ¶ 27. While plaintiff does allege that Melissa Nase
performed the same type of manual labor as he did, Compl. II ¶ 37, Nase is not a similarly situated
comparator because she became plaintiff’s “de facto supervisor.” Compl. II ¶ 90; see Funayama v.
Nichia Am. Corp., No. 08-cv-5599, 2011 WL 1399844, at *23 (E.D. Pa. Apr. 13, 2011) (holding
that plaintiff’s Equal Pay Act claim fails because the comparator “was identified as [plaintiff’s]
supervisor on multiple occasions”). Finally, plaintiff pleads limited facts as to Claire Morgan’s
actual job responsibilities, but it does not appear from the Complaint that her employment duties
were comparable to plaintiff’s duties. Compl. II ¶ 36.
Plaintiff has not pled the existence of any similarly situated comparator. Thus, the Court
grants SCEE’s motion to dismiss plaintiff’s claim for violation of the Equal Pay Act. The claim is
dismissed with prejudice because the Court concludes amendment would be futile.
C. RETALIATION – TITLE VII
Next, plaintiff claims that he was fired in retaliation for filing a charge of gender
discrimination with the Equal Employment Opportunity Commission (“EEOC”), in violation of
Title VII, 42 U.S.C. § 2000e-3. To state a claim for retaliation under Title VII, plaintiff must aver
that “(1) the employee engaged in a protected employee activity, (2) the employer took an adverse
employment action after or contemporaneous with the employee’s protected activity, and (3) a
causal link exists between the employee’s protected activity and the employer’s adverse action.”
Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001).
On April 24, 2014, plaintiff submitted an EEOC Intake Questionnaire, on which he checked
Box 2. (Doc. No. 59, filed August 24, 2016). By checking Box 2, plaintiff filed a charge of sex
discrimination. See Hildebrand v. Allegheny Cnty., 757 F.3d 99, 113 (3d Cir. 2014) (“[A]n
employee who completes the Intake Questionnaire and checks Box 2 unquestionably files a charge
of discrimination.”). In the Questionnaire, plaintiff stated that he was subjected to an “hour long
meeting of sexually demeaning verbal harassment by a board member, and disrespectful harassing
behavior” and that he was treated less favorably than female employees. The Court concludes that,
by submission of the Questionnaire, pro se plaintiff filed a charge of sex discrimination, which
constitutes protected activity.
SCEE also argues that the Complaint fails to adequately plead causation even if plaintiff
engaged in protected activity. The Court rejects that argument. Plaintiff has pled a “pattern of
antagonism” following the filing of his discrimination charge. See Woodson v. Scott Paper Co., 109
F.3d 913, 920–21 (3d Cir. 1997). Specifically, plaintiff was allegedly “isolated” from social events
and was discussed in “secret meetings,” and SCEE banned communication between plaintiff and
other staff. Compl. II ¶¶ 76–89. These events culminated in plaintiff’s demotion, Compl. II ¶¶ 90–
91, and later, the decision to terminate plaintiff’s employment. Compl. II ¶¶ 99, 104. At this early
stage, plaintiff’s allegations are sufficient to plead a retaliation claim against SCEE. See Connelly v.
Lane Const. Corp., 809 F.3d 780, 792-93 (3d Cir. 2016). SCEE’s Motion is thus denied as to this
D. FIRST AMENDMENT VIOLATION
Plaintiff claims that SCEE violated his rights under the First Amendment to the United
States Constitution. Specifically, he avers that SCEE prevented him from protesting on his own
property. “[T]he First Amendment governs only state action, not the actions of private entities.”
Max v. Republican Comm. of Lancaster Cnty., 587 F.3d 198, 200 (3d Cir. 2009). To evaluate
whether SCEE, a private nonprofit entity, is a state actor, “[t]he principal question at stake is
whether there is such a close nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337 at
339 (3d Cir. 2005). Private property does not “lose its private character merely because the public is
invited to use it for designated purposes.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 569 (1972).
Plaintiff’s Complaint does not plead any facts that establish state action. Accepting the
Complaint’s allegations as true, there is no indication that the state participated in or encouraged the
claimed constitutional violation. Nor does the Complaint allege that SCEE or its employees are in
any way controlled by the state.3 The Court concludes that plaintiff’s First Amendment claim fails
as a matter of law and, because amendment would be futile, the Court dismisses plaintiff’s First
Amendment claim with prejudice.
Plaintiff advances three defamation claims against SCEE defendants. Under Pennsylvania
defamation law, plaintiff must plead facts establishing: (1) the defamatory character of the
communication, (2) its publication by defendant, (3) its application to plaintiff, (4) the
understanding by the recipient of its defamatory meaning, (5) the understanding by the recipient of
it as intended to be applied to the plaintiff, (6) special harm resulting to the plaintiff from its
publication, and (7) abuse of a conditionally privileged condition. 42 Pa.C.S. § 8343(a). The Court
considers each communication in turn.
First, plaintiff claims he was defamed by Goin’s statement to police that plaintiff “may be
schizophrenic” and mentally ill. Compl. II ¶¶ 117-18. Under Pennsylvania law, “statements made
to law enforcement officials for the purpose of persuading those officials to initiate criminal
proceedings” are privileged and cannot predicate a defamation claim. Schanne v. Addis, 121 A.3d
942, 947-48 (Pa. 2015). SCEE called the police to report plaintiff’s picketing activity. Goin’s
In his Response, plaintiff states that “SCEE is a state actor by contract . . . in relation to the
administration of the community gardens, and the work related to the community gardens that takes
place on SCEE property.” Resp. to Motions to Dismiss, 3. The Court concludes it would be futile
to grant plaintiff leave to amend his Complaint to include these facts as SCEE is not a state actor
based on those alleged public functions. See Kalian at Poconos, LLC v. Saw Creek Estates Cmty.
Ass’n, Inc., 275 F. Supp. 2d 578, 589-90 (M.D. Pa. 2003).
statement that plaintiff is “mentally ill” to police officers was “material to the relief sought,” as
plaintiff’s mental state was relevant to SCEE’s concern about his potential dangerousness. See
Schanne, 121 A.3d at 947. Accordingly, plaintiff’s allegation regarding Goin’s statement to police
fails to state a claim for defamation.
Second, plaintiff claims that he was defamed by an email sent by Weilbacher to SCEE
“parents.” The email, dated June 26, 2014, stated that plaintiff was being “closely monitored” and
that “[a]s an additional precaution, a boundary has been established around the house he has
inhabited; no visitors, children, or groups are able to access parts of our property near that
boundary.” Compl. II ¶ 123. Plaintiff avers that the email was part of a “whisper campaign” to
portray him as a “dangerous schizophrenic.” Compl. II ¶¶ 121, 122.
The Court concludes that the Weilbacher email is not capable of defamatory meaning and
was conditionally privileged. The email, as pled, does not contain any falsehoods about plaintiff.
Weilbacher’s statements cannot be “fairly and reasonably construed” to imply that plaintiff is a
dangerous schizophrenic. See Livingston v. Murray, 417 Pa. Super. 202, 214 (Pa. Super. Ct. 1992)
(stating that to qualify as “defamation by innuendo,” the implied meaning must be warranted,
justified, and supported by the publication). Furthermore, SCEE parents were “entitled to know”
about the monitoring, perimeter, and any other steps SCEE was taking to address the dispute with
plaintiff as plaintiff was actively picketing on the property. See Rockwell v. Allegheny Health, Educ.
& Research Found., 19 F. Supp. 2d 401, 408 (E.D. Pa. 1998) (“A publication is conditionally
privileged if the publisher reasonably believes that the recipient shares a common interest in the
subject matter and is entitled to know.”). Plaintiff can therefore only succeed if Weilbacher abused
the conditional privilege. The Court concludes that, accepting plaintiff’s allegations as true,
Weilbacher did not abuse the privilege as his communication was not “motivated solely by spite or
ill-will against the plaintiff.” See Howard v. Deklinski, No. 01-4171, 2002 WL 31501850 (3d Cir.
Nov. 12, 2002). Accordingly, plaintiff fails to state a claim for defamation as to the Weilbacher
Finally, plaintiff claims that he was defamed by a letter written by Anna Mueser, also dated
June 26, 2014. According to the Complaint, the letter repeated the statements from Weilbacher’s
email, and additionally claimed that “[w]e are in the process of evicting the former employee,” who
“refused to leave.” Compl. II ¶¶ 124–125. Like the Weilbacher email, Mueser’s letter is not capable
of defamatory meaning and is conditionally privileged. Mueser’s additional statement concerning
the eviction process does not change the analysis because the statement addresses SCEE’s actions
and intentions without defaming plaintiff. That plaintiff “refused to leave” is a true fact, as pled in
the Complaint. Plaintiff fails to state a claim for defamation as to the Mueser letter. Because
amendment would be futile as to all three defamation claims, the Court dismisses them with
F. WRONGFUL DISCHARGE
Next Tinneny claims that he was wrongfully discharged (1) in retaliation for filing a
complaint of discrimination with the EEOC, and (2) for filing a report of illegal activity on the
grounds of a preschool at SCEE. Neither allegation states a claim for wrongful discharge. Under
Pennsylvania law, employment is “at-will”; the employer is generally free to discharge an employee
“with or without cause, at pleasure.” Donaldson v. Informatica Corp., 792 F. Supp. 2d 850, 855
(W.D. Pa. 2011). The tort of wrongful discharge applies “only in the absence of a statutory remedy
and only when important and well recognized facets of public policy [are] at stake.” Rettinger v.
American Can Co., 574 F. Supp. 306, 311 (M.D. Pa. 1983).
Plaintiff cannot state a wrongful-discharge claim based on retaliation for filing an EEOC
charge because he has a statutory remedy available to him under Title VII. See Rettinger, 574 F.
Supp. at 311. SCEE’s Motion to Dismiss pro se plaintiff’s retaliation claim under Title VII is
denied, and that claim may proceed. The wrongful-discharge claim based on retaliation thus fails as
a matter of law. Cf. McAlee v. Independence Blue Cross, 798 F. Supp. 2d 601, 604-06 (E.D. Pa.
Plaintiff’s allegation that he was wrongfully discharged for reporting a drug crime also fails
to state a wrongful-discharge claim. Employees can be fired at will for reporting a crime, provided
they do not have a legal duty to do so. See, e.g., Fraser, 352 F.3d at 112 (noting that Pennsylvania
courts “have repeatedly rejected claims that a private employer . . . violated public policy by firing
an employee for whistleblowing”).
Plaintiff’s wrongful discharge claim is dismissed with prejudice. The Court concludes
amendment would be futile.
ECHELON DEFENDANTS’ MOTION TO DISMISS
Echelon defendants move to dismiss all claims asserted against them pursuant to Federal
Rule of Civil Procedure 12(b)(6). Plaintiff’s Complaint asserts assault, battery, and invasion of
privacy claims against Echelon and its employees John Does #1–3. For the reasons that follow, the
Court denies Echelon defendants’ Motion to Dismiss as to plaintiff’s assault and battery claims but
grants the Motion as to plaintiff’s invasion of privacy claim against John Doe #1.
Plaintiff asserts claims for assault against three individual John Doe defendants, and asserts
a claim against their employer, Echelon, under the doctrine of vicarious liability. “Assault is an
intentional attempt by force to do an injury to the person of another . . . .” Renk v. City of
Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). The Court considers each assault claim in turn.
Plaintiff’s Complaint alleges three separate incidences of assault that occurred while
plaintiff picketed at the end of the Weil House driveway. First, he alleges that on July 2, 2015, John
Doe #1 “slammed on the accelerator” of his vehicle, “threatening to run over the Plaintiff.” Compl.
II ¶ 128. Second, on July 7, 2015, John Doe #2 allegedly pointed a loaded firearm at plaintiff.
Compl. II ¶¶ 134–137. And third, on that same date, John Doe #3 “drove in front of Plaintiff, zigzagging, backing up in front of Plaintiff, attempting to run over Plaintiff with his vehicle and
missing his foot by less than an inch.” Compl. II ¶ 141.
According to Echelon, its employees were entitled to use reasonable force against plaintiff
to defend SCEE property against a trespasser. The Court rejects this argument. Plaintiff was not a
conventional trespasser; he retained possession of property as SCEE had not yet obtained a lawful
eviction judgment against him. Neither SCEE nor Echelon have provided authority for the
proposition that a landlord’s employee can threaten or use force against a tenant in order to control
the tenant’s activities on disputed property. See Lenair v. Campbell, 31 Pa. D. & C.3d 237, 242 (Pa.
Com. Pl. 1984) (Legal process provides the “complete and exclusive remedy for a landlord seeking
to vindicate his rights.”).
Echelon additionally argues that it was merely enforcing an injunction issued by the
Pennsylvania Court of Common Pleas, which forbade plaintiff from protesting on SCEE property.
However, if plaintiff was violating an injunction, the appropriate remedy is to seek enforcement
from the issuing court. The Echelon defendants have provided no support for their use of self-help
to enforce a court’s equitable remedy.4 Accepting the facts alleged in the Complaint as true, plaintiff
has adequately pled assault claims against the three John Doe defendants.
Plaintiff also seeks to hold Echelon vicariously liable for the alleged assaults by its
employees. To hold an employer vicariously liable, the employee’s acts must be “committed during
the course of and within the scope of the employment.” Sutherland v. Monongahela Valley Hosp.,
856 A.2d 55, 62 (Pa. Super. Ct. 2004). Conduct is within the scope of employment if: (1) it is of a
Even assuming that the Echelon employees were entitled to use some amount of force against
plaintiff, the amount of force alleged in the Complaint—deadly force—was not reasonable under
the circumstances. See Simmons v. Galin, No. 97-cv-6151, 2002 WL 109611, at *4 (E.D. Pa. Jan.
24, 2002) (Pennsylvania law “authorizes only non-lethal force for the protection of property.”).
kind and nature that the employee is employed to perform; (2) it occurs substantially within the
authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the
employer; and (4) if force is intentionally used by the employee against another, the use of force is
not unexpected by the employer. Gerhart v. Com. of Pa., No. 09-cv-1145, 2009 WL 2581715, at *8
(E.D. Pa. Aug. 13, 2009). “
In this case, Echelon avers that the actions of the John Doe defendants were outside scope of
their duties because they were “not engaged to commit criminal acts against the Plaintiff.” Echelon
Br. at 8. However, the “liability of [an] employer may extend even to intentional or criminal acts
committed by the servant.” Fitzgerald v. McCutcheon, 410 A.2d 1270, 1271 (Pa. Super. Ct. 1979).
Upon consideration of all four factors, the Court is unable to determine at this early stage that the
conduct of the John Doe employees fell outside the scope of their employment. The Court therefore
denies the Echelon defendants’ Motion to Dismiss as to plaintiff’s claim for vicarious liability
against Echelon for the assault claims.
Plaintiff asserts a battery claim against John Doe #3 and also seeks to hold Echelon
vicariously liable for that claim. To state a claim for battery under Pennsylvania law, plaintiff must
aver that there was “a harmful or offensive contact with a person, resulting from an act intended to
cause plaintiff or a third person to suffer such contact, or apprehension that such a contact is
imminent.” Bell v. Twp. of Concord, 759 F. Supp. 2d 621, 630 (E.D. Pa. 2011).
In this case, plaintiff pled that the vehicle driven by John Doe #3 “grazed Plaintiff’s leg,
causing him to fall back.” Compl. II ¶ 142. The Court concludes that plaintiff adequately pled a
battery claim against John Doe #3 and, for the reasons set forth above in connection with plaintiff’s
assault claims, plaintiff may also assert the battery claim against Echelon under the doctrine of
C. INVASION OF PRIVACY
Finally, plaintiff avers that John Doe #1 tortiously invaded his privacy by “intruding upon
his seclusion.” Under Pennsylvania law, “intrusion upon seclusion” applies to “[o]ne who
intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his
private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person.” Marks v. Bell Telephone Co., 331 A.2d
424, 430 (Pa. 1975). The invasion may occur by “(1) physical intrusion into a place where the
plaintiff has secluded himself or herself; (2) use of the defendant's senses to oversee or overhear the
plaintiff's private affairs; or (3) some other form of investigation or examination into plaintiff's
private concerns.” Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir. 1992).
Plaintiff does not plead that John Doe #1 intruded upon any area that is, in fact, secluded.
The Complaint only alleges that John Doe #1 “stalked Plaintiff on the grounds of his own residence,
hiding behind trees and bushes, taking pictures of Plaintiff.” Compl. II ¶ 129. John Doe #1 also
“stalked Plaintiff, following him down his own driveway for a tenth of a mile.” Compl. II ¶ 130.
These allegations do not state a claim for invasion of privacy because “his appearance is public and
open to the public eye.” Restatement (Second) of Torts § 652B, cmt. c. Rather, defendants’
conducted constituted a reasonable investigation into plaintiff’s activities. Cf. Forster v.
Manchester, 189 A.2d 147, 150 (Pa. 1963). The Court concludes that plaintiff has failed to plead an
invasion of privacy claim and dismisses the claim with prejudice as amendment would be futile.
FUTILITY OF AMENDMENT
Although Federal Rule of Civil Procedure 15(a) provides that courts “should freely give
leave [to amend] when justice so requires,” the Court may deny leave for good reason, including
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Futility “means that the
complaint, as amended, would fail to state a claim upon which relief could be granted,” the same
legal standard that applies under Federal Rule of Civil Procedure 12(b)(6) for assessing a motion to
dismiss. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010).
In the present case, the Court concludes that amendment would be futile as to plaintiff’s hostile
work environment, violation of the Equal Pay Act, violation of the First Amendment, defamation,
wrongful discharge, and invasion of privacy claims. Thus, the Court dismisses those claims with
PETITION FOR PRELIMINARY INJUNCTION
Prior to the removal of Civil Action No. 15-4305 to federal court, plaintiff filed a petition
for a preliminary injunction against SCEE that would, inter alia, forbid SCEE from interfering with
plaintiff’s protest activities and enjoin SCEE from defaming plaintiff.
“The grant of injunctive relief is an extraordinary remedy . . . which should be granted only
in limited circumstances.” Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d
1421, 1426-27 (3d Cir. 1994). The party moving for a preliminary injunction must show that (1)
the movant has a reasonable probability of success on the merits, (2) irreparable harm would result
if the relief sought is not granted, (3) the relief would not result in greater harm to the non-moving
party, and (4) the relief is in the public interest. See Swartzwelder v. McNeilly, 297 F.3d 228, 234
(3d Cir. 2002).
Plaintiff no longer resides at Weil House. Because he no longer resides there, the part of
plaintiff’s petition for preliminary injunction that seeks to enjoin SCEE from interfering with his
protest activities on that property is denied as moot. In all other respects, plaintiff’s petition is
denied because he has not shown a “likelihood of success on the merits[.]” Bimbo Bakeries USA,
Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010).
For the foregoing reasons, SCEE defendants’ Motions to Dismiss is granted in part and
denied in part. Plaintiff’s hostile work environment under Title VII, violation of the Equal Pay Act,
violation of the First Amendment, defamation, and wrongful discharge claims against SCEE
defendants are dismissed with prejudice. The Court grants Echelon defendants’ Motion to Dismiss
plaintiff’s invasion of privacy claim against Echelon defendant John Doe #1 with prejudice.
Echelon defendants’ Motion to Dismiss is denied in all other respects. Plaintiff’s Petition for
Preliminary Injunction is also denied.
The remaining claims in this case are (1) a retaliation claim under Title VII against SCEE,
(2) assault claims against Echelon employees John Does #1-3 and Echelon, and (3) a battery claim
against John Doe #3 and Echelon. An appropriate order follows.
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