Luck et al v. Mount Airy # 1, LLC et al
Filing
48
MEMORANDUM and ORDER granting 40 Motion for Judgment on Counts VI, VII and VIII. Clerk of Court is directed to enter judgment.Signed by Honorable James M. Munley on 2/5/13 (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER C. LUCK and
KENNETH N. WYNDER,
Plaintiffs
v.
LIANNE R. ASBURY,
TREVOR TASETANO,
JOSEPH J. KULICK, JR., and
MARK A. KAYE,
Defendants
:
:
:
:
:
:
:
:
:
:
:
No. 3:12cv0887
(Judge Munley)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Defendant Kaye and Defendant
Kulick’s motion for partial judgment on the pleadings. (Doc. 40). For the
following reasons, the court will grant the motion.
Background
On May 2, 2011, Plaintiffs Peter Luck and Kenneth Wynder
(collectively “plaintiffs”) entered Mount Airy Casino located in Mount
Pocono, Pennsylvania, and spoke with casino security guards. (Doc. 1,
Compl. (hereinafter “Compl.”) ¶ 17). Defendant Trevor Tasetano
(hereinafter “Tasetano”), a Mount Airy Casino security supervisor, asked
plaintiffs to leave because they were talking about unions and making the
security guards nervous. (Id.) Plaintiffs voluntarily left the casino. (Id.)
They were never notified that they could not return to the premises. (Id.)
On or about May 14, 2011, plaintiffs again went to Mount Airy
Casino. (Id. ¶ 14). Plaintiffs sat and played slot machines. (Id.) They
were on the premises for approximately one hour when security responded
to a nearby scuffle involving other patrons. (Id.) Three security guards
surrounded plaintiffs. (Id.) Tasetano demanded identification from
plaintiffs. (Id. ¶¶ 5, 14). Plaintiffs asked why they were being questioned.
(Id. ¶ 14). Tasetano told them that they were not permitted on the
premises because of the May 2nd incident. (Id.)
Plaintiffs stated that they did not want any trouble and would
voluntarily leave. (Id. ¶ 14). Tasetano said they could not leave and that
he was calling the Pennsylvania State Police. (Id.) Security escorted
plaintiffs to the front of the casino where they met two Pennsylvania State
Troopers, Defendant Mark A. Kaye (hereinafter “Kaye”) and Defendant
Joseph J. Kulick, Jr. (hereinafter “Kulick”). (Id. ¶ 15). The troopers
escorted plaintiffs to an upstairs office. (Id.) Defendant Lianne R. Asbury,
Director of Casino Security, (hereinafter “Asbury”) and Tasetano prompted
the troopers to arrest plaintiffs. (Id.) Kaye and Kulick arrested plaintiffs
and issued them citations for criminal trespass. (Id.)
2
On or about June 7, 2011, following a trial on the criminal trespass
charges, plaintiffs were found not guilty. (Id. ¶ 22). All the charges were
dismissed or terminated in their favor. (Id.)
On May 11, 2012, plaintiffs filed an eight-count complaint pursuant to
42 U.S.C. § 1983 and § 1988 against the Pennsylvania State Police, Kaye,
Kulick, Mount Airy Casino, Asbury and Tasetano. Count I alleges false
arrest and false imprisonment, Count II alleges malicious prosecution and
Count III charges defendants with conspiracy. In Count IV, plaintiffs assert
a failure to train and supervise claim against the Pennsylvania State Police
pursuant to 42 U.S.C. § 1983 and § 1988. Additionally, plaintiffs assert
four state law claims against all of the defendants: Count V, a state
constitutional claim for false arrest and false imprisonment pursuant to
Article I, Section 8 of the Pennsylvania Constitution; Count VI, false arrest
and false imprisonment pursuant to state law; Count VII, malicious
prosecution pursuant to state law; and Count VIII, intentional infliction of
emotion distress pursuant to state law.
On July 16, 2012, Defendants Pennsylvania State Police, Kaye and
Kulick and Defendants Mount Airy Casino, Asbury and Tasetano filed
motions to dismiss plaintiffs’ complaint for failure to state a claim pursuant
3
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docs. 14,15).
By memorandum and order dated October 4, 2012, the court granted, in
part, and denied, in part, defendants’ motions to dismiss. (Doc. 25).
The surviving claims against Asbury, Tasetano, Kaye and Kulick, in
their individual capacities, are: Count I, false arrest and false imprisonment
pursuant to Sections 1983 and 1988; Count III, conspiracy pursuant to
Sections 1983 and 1988; Count VI, false arrest and false imprisonment
pursuant to state law; Count VII, malicious prosecution pursuant to state
law; and Count VIII, intentional infliction of emotion distress pursuant to
state law.
On November 21, 2012, the state troopers, Defendants Kaye and
Kulick, filed a motion for partial judgment on the pleadings (Doc. 40)
pursuant to Federal Rule of Civil Procedure 12(c). Kaye and Kulick seek
judgment in their favor on plaintiffs’ state law claims, Counts VI-VIII of the
complaint. The parties briefed the issues bringing the case to its present
posture.
Jurisdiction
Plaintiffs bring this case under 42 U.S.C. § 1983 (hereinafter “Section
1983”) and 42 U.S.C. § 1988 (hereinafter “Section 1988”) for violation of
4
plaintiffs’ constitutional rights. Thus, the court has federal question
jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”); 28 U.S.C. §§ 1343(a)(3), (4) (granting
district courts jurisdiction over civil actions brought to redress deprivations
of constitutional or statutory rights by way of damages or equitable relief).
The court has supplemental jurisdiction over plaintiffs’ state law claims
pursuant to 28 U.S.C. § 1367(a).
Legal Standard
Defendants Kaye and Kulick have filed a motion for partial judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), which
provides that “[a]fter the pleadings are closed–but early enough not to
delay trial–a party may move for judgment on the pleadings.” FED. R. CIV.
P. 12(c). Under Rule 12(c), judgment will not be granted:
unless the movant clearly establishes that no material
issue of fact remains to be resolved and that he is entitled
to judgment as a matter of law. In considering a motion for
judgment on the pleadings, the trial court is required to
view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most
favorable to the nonmoving party. In this fashion the
courts hope to insure that the rights of the nonmoving
party are decided as fully and fairly on a rule 12(c) motion,
as if there had been a trial.
5
Inst. for Scientific Info., Inc. v. Gordon & Breach Sci. Publishers, Inc., 931
F.2d 1002, 1004 (3d Cir. 1991) (citing Society Hill Civic Ass’n v. Harris, 632
F.2d 1045, 1054 (3d Cir. 1980); 5C CHARLES A. WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE
AND
PROCEDURE, § 1367 at 205 (3d ed. 2004));
see also Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005)
(finding that under Rule 12(c) “[j]udgment will not be granted unless the
movant clearly establishes there are no material issues of fact, and he is
entitled to judgment as a matter of law.”).
DISCUSSION
Defendants Kaye and Kulick move for partial judgment on the
pleadings pertaining to three state law claims: Count VI - False Arrest &
False Imprisonment, Count VII - Malicious Prosecution, and Count VIII Intentional Infliction of Emotional Distress. Kaye and Kulick argue
sovereign immunity bars plaintiffs’ state law claims. As such, we will
determine whether sovereign immunity applies, and if so, whether it bars
plaintiffs’ state law claims.
A. Sovereign Immunity
Commonwealth employees, such as state troopers Kaye and Kulick,
6
enjoy immunity from most state law claims.1 Brautigam v. Fraley, 684 F.
Supp. 2d 589, 593 (M.D. Pa. 2010); La Frankie v. Miklich, 618 A.2d 1145,
1148 (Pa. Commw. Ct. 1992). Sovereign immunity “applies to
Commonwealth employees in both their official and individual capacities.”
Larson v. State Emps.’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa.
2008) (citing Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. Ct. 1995).
Sovereign immunity protects Commonwealth employees from liability when
their actions: (1) cannot fit into one of the nine statutory sovereign
immunity exceptions; (2) are not negligent; and (3) occur within the scope
of their employment. La Frankie, 618 A.2d 1145, 1149. We address each
element ad seriatim.
1
Pursuant to section 11 of Article 1 of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the
General Assembly that the Commonwealth, and its officials and
employees acting within the scope of their duties, shall continue
to enjoy sovereign immunity and official immunity and remain
immune from suit except as the General Assembly shall
specifically waive the immunity. When the General Assembly
specifically waives sovereign immunity, a claim against the
Commonwealth and its officials and employees shall be
brought only in such manner and in such courts and in such
cases as directed by the provisions of Title 42 (relating to
judiciary and judicial procedure) or 62 (relating to procurement)
unless otherwise specifically authorized by statute.
1 PA. CONS. STAT. ANN § 2310.
7
1. Sovereign Immunity Exceptions
The General Assembly has expressed only nine exceptions to the
grant of sovereign immunity. The exceptions are based on acts of
Commonwealth employees. Specifically, the defense of sovereign
immunity shall not be raised to claims caused by: (1) the operation of any
motor vehicle in the possession or control of a Commonwealth party; (2)
acts of health care employees of Commonwealth agency medical facilities
or institutions or by a Commonwealth party who is a doctor, dentist, nurse
or related health care personnel; (3) the care, custody or control of
personal property in the possession or control of Commonwealth parties;
(4) a dangerous condition of Commonwealth agency real estate and
sidewalks; (5) a dangerous condition of highways under the jurisdiction of a
Commonwealth agency created by potholes or sinkholes or other similar
conditions created by natural elements; (6) the care, custody or control of
animals in the possession or control of a Commonwealth party; (7) the sale
of liquor at Pennsylvania liquor stores; (8) acts of a member of the
Pennsylvania military forces; or (9) the administration, manufacture and
use of a toxoid or vaccine. 42 PA. CONS. STAT. ANN § 8522(b).
In the present case, analyzing Kaye and Kulick’s actions against the
8
sovereign immunity exceptions reveals that none of the exceptions apply.
Here, Kaye and Kulick escorted plaintiffs to an upstairs office. (Compl. ¶
15). Kaye and Kulick arrested and issued plaintiffs citations for criminal
trespass. (Id.) Kaye and Kulick then released plaintiffs and escorted them
out of the casino. (Id.) Kay and Kulick’s actions of escorting, arresting and
issuing citations to plaintiffs do not fall under any of the nine sovereign
immunity exceptions. Moreover, plaintiffs’ brief in opposition to Kaye and
Kulick’s motion for partial judgment on the pleadings fails to argue that any
of the sovereign immunity exceptions apply. As a result, Kaye and Kulick
have satisfied the first element of the sovereign immunity test.
2. Negligence
Having found that none of the sovereign immunity exceptions apply,
we address whether the alleged act which caused injury was negligent
such that damages would be recoverable but for the availability of the
immunity defense. However, none of plaintiffs’ claims sound in negligence.
Plaintiffs’ claims are based upon the intentional torts of false arrest,
malicious prosecution and intentional infliction of emotional distress.
Pennsylvania courts have consistently found sovereign immunity
applies to intentional torts. See La Frankie, 618 A.2d at 1149; see also
9
Stone v. Felsman, No. 3:10-CV-0442, 2011 WL 5320738 at *11 (M.D. Pa.
Nov. 1, 2011) (finding state law claims of assault, battery, false arrest, false
imprisonment and malicious prosecution are barred by sovereign
immunity); Fischer v. Pa. State Police, No. 4:07-CV-1653, 2009 WL
650251 at *12 (M.D. Pa. March 10, 2009) (holding claim of intentional
infliction of emotional distress against Pennsylvania State Police is barred
by sovereign immunity). As such, Kaye and Kulick satisfy the second
element of the sovereign immunity test.
3. Acting within the Scope of Employment
Finally, we analyze whether Kaye and Kulick were acting within the
scope of their employment. “Conduct of an employee is within the scope
of employment if it is of a kind and nature that the employee is employed to
perform; it occurs substantially within the authorized time and space limits;
[and] it is actuated, at least in part, by a purpose to serve the employer . . .
.” Larson, 553 F. Supp. 2d at 420.
In this regard, the parties’ complaint and answer establish undisputed
facts that Kaye and Kulick were acting within the scope of their
employment by arresting and issuing citations to plaintiffs.2 Moreover,
See (Compl. ¶ 8; Doc. 30, Kaye and Kulick’s Answer (hereinafter
“Commonwealth Answer”) ¶ 8) (stating Kaye and Kulick are employees of
2
10
Kaye and Kulick arrested plaintiffs in their capacity as state police officers,
during their normal work hours. (Compl. ¶ 15; Commonwealth Answer ¶
15). Accordingly, Kaye and Kulick were acting within the scope of their
employment when they arrested plaintiffs.
Conclusion
Kaye and Kulick have satisfied the three-part sovereign immunity
test. First, Kaye and Kulick’s actions do not fit within one of the nine
sovereign immunity exceptions. Second, Kaye and Kulick’s actions are
based upon intentional torts and do not sound in negligence. Finally, Kaye
and Kulick were acting within the scope of their employment by arresting
and issuing citations to plaintiffs. As such, the court finds that sovereign
immunity applies and thereby bars plaintiffs’ state law claims against Kaye
and Kulick. Accordingly, the motion for partial judgment on the pleadings
will be granted. An appropriate order follows.
the Pennsylvania State Police); (Compl. ¶ 10; Commonwealth Answer ¶
10) (stating at all pertinent times, Kaye and Kulick acted within the scope of
their employment).
11
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PETER C. LUCK and
KENNETH N. WYNDER,
Plaintiffs
:
No. 3:12cv0887
:
:
(Judge Munley)
:
v.
:
:
LIANNE R. ASBURY,
:
TREVOR TASETANO,
:
JOSEPH J. KULICK, JR., and
:
MARK A. KAYE,
:
Defendants
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, this 5th day of February 2013, Defendants Kaye and
Kulick’s motion for partial judgment on the pleadings (Doc. 40) is hereby
GRANTED on Counts VI, VII and VIII. The Clerk of Court is directed to
enter judgment in Defendant Kaye and Kulick’s favor and against plaintiffs
on Counts VI, VII and VIII.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?