Branning v. Wayne County et al
MEMORANDUM OPINION (Order to follow as separate docket entry)re: Report and Recommendation (Doc. 24).Signed by Honorable Robert D. Mariani on 9/7/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WAYNE COUNTY, et al.,
I. INTRODUCTION AND PROCEDURAL HISTORY
Presently before the Court is a Report and Recommendation (''R&R") (Doc. 24) by
Magistrate Judge Carlson, in which he recommends that Defendants' Motion for Summary
Judgment (Doc. 14) be granted with respect to the Monell claim against Wayne County and all
the official capacity defendants in Count 11 of the Amended Complaint, 1 but be denied in all other
respects. Defendants have filed Objections to the R&R (Docs. 25, 26), to which Plaintiff
responded (Doc. 28) and Defendants replied (Doc. 29). Plaintiff did not file any Objections to
Magistrate Judge's R&R correctly perceived Count II of the Amended Complaint as one
attempting to impose Mone// liability against Wayne County and the other defendants named therein in their
official capacities (see Doc. 24, at 16, n.6). Plaintiff has not disputed this characterization of Count II by the
Magistrate Judge. Nor could he in light of the well-established case law that permits governmental entities to
be liable for constitutional violations arising from the entities' official policies, practices, or established customs
and which further treats claims against persons alleged to have acted in their official capacities as a suit
against the government entity itself. See e.g., Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301
(1991)(citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114(1985)). Thus, the
Magistrate Judge properly recommended the dismissal of Count II in its entirety.
On October 5, 2015, Plaintiff, Troy Branning, commenced the above-captioned action
against Defendants Wayne County, Vicky Botjer, and Skip Martin. (Doc. 1). Plaintiff thereafter
filed an Amended Complaint which included an additional count and added County
Commissioners Brian W. Smith, Jonathan A. Fritz, and Wendell R. Kay as Defendants. (Doc.
11 ). Plaintiff's Amended Complaint sets forth the following Counts: First Amendment Retaliation
(Count I) pursuant to 42 U.S.C. § 1983 against all Defendants; Inadequate/Supervision/Hiring/
Screening/Training (Count II) pursuant to§ 1983 against all Defendants; Assault and Battery
(Count 111) against Botjer; Negligent Supervision/ Hiring/Training Violation of Common Law
(Count IV) against all Defendants; and a second claim of First Amendment Retaliation (Count V)
pursuant to § 1983 against all Defendants.
On June 23, 2016, the Defendants filed a Motion for Summary Judgment (Doc. 14)
requesting that summary judgment be granted in their favor on all counts. The Court
subsequently referred the motion to Magistrate Judge Carlson for the preparation of a Report
and Recommendation on Defendants' pending motion. On May 11, 2017, the Magistrate
Judge issued the R&R (Doc. 24) presently before the Court.
A District Court may "designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition" of certain matters pending before the Court. 28 U.S.C. §
636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's
Report and Recommendation, the District Court "shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made." Id. at§ 636(b)(1)(C); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); M.D.
Pa. Local Rule 72.3.
Here, Defendants specifically "object to the portion of Magistrate Judge Carlson's Report
and Recommendation denying Defendants' Motion for Summary Judgment on Plaintiff's Count
IV for a state law claim of negligent failure to supervise, hire or train against Defendant Wayne
County and Defendant County Commissioners" (Doc. 25, ~ 6). Defendants argue that Wayne
County and the County Commissioners, Smith, Fritz, and Kay, are immune from suit in Count IV
pursuant to the Pennsylvania Political Subdivision Torts Claims Act ("PSTCA"). (Doc. 25, ~~ 8,
10). Defendants therefore request that the Court "reject the recommendation of Magistrate
Judge Carlson ... relative to Plaintiff's Count IV state law claim" and "grant Defendants' Motion
for Summary Judgment on Plaintiff's Count IV state law claim and dismiss said claim in its
entirety against all Defendants with prejudice." (Doc. 25, ~ 18). 2
Pursuant to the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat.
Ann.§ 8541 et seq., a local agency cannot be held "liable for any damages on account of any
injury to a person or property caused by any act of the local agency or an employee thereof or
any other person." 42 Pa. Cons. Stat. Ann. § 8541. The Act provides for eight exceptions to
must be noted that although Magistrate Judge Carlson recommended that Defendants' motion for
summary judgment be denied as to Count IV, he expressed "reservations about this claim", and specifically
about whether the defendants may be entitled to immunity on this count pursuant to the PSTCA. However,
because Defendants did not raise this issue in their motion and accompanying brief, "the Court [found] it would
be inappropriate to weigh in on the defense, or its potential application to the plaintiff's claims against some or
all of the defendants, without the benefit of any assertion of the defense or argument by the parties." (Doc. 24,
at 23-24 n. 8).
this rule: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property;
(4) trees, traffic controls and street lighting; (5) utility services facilities; (6) streets; (7)
sidewalks; and (8) care, custody or control of animals. 42 Pa. Cons. Stat. Ann.§ 8542(b).
[m]unicipal employees ... are generally immune from liability to the same extent
as their employing agency, so long as the act committed was within the scope of
the employee's employment. 42 Pa. Cons. Stat. § 8545. However, there is an
exception to this general rule: Employees are not immune from liability under §
8545 where their conduct amounts to "actual malice" or "willful misconduct".
Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006). The Pennsylvania Supreme Court has
recognized willful misconduct as requiring a demanding level of fault. Id. "Willful misconduct
has been defined by the Pennsylvania Supreme Court as 'conduct whereby the actor desired
to bring about the result that followed or at least was aware that it was substantially certain to
follow, so that such desire can be implied."' Id. (quoting Renk v. City of Pittsburgh, 641 A.2d
289, 293 (Pa. 1994)). "Otherwise stated, 'the term "willful misconduct" is synonymous with the
term "intentional tort.""' Id. As such, "even where a public employee acts with a degree of
culpability equivalent to 'recklessness,' Pennsylvania law nevertheless affords him immunity."
Bright v. Westmoreland Cnty., 443 F.3d 276, 287 (3d Cir. 2006) (citing Williams v. City of
Philadelphia, 569 A.2d 419, 421-422 (Pa. Commw. Ct. 1995)).
Plaintiff asserts that Defendants are not entitled to immunity in Count IV for two
reasons: (1) Defendants failed to raise any entitlement to immunity pursuant to the PSTCA in
their motion for summary judgment and accompanying brief; and (2) "the actual malice and
willful misconduct exemptions to PSTCA immunity are applicable" in this action. (Doc. 28).
Plaintiffs first argument is without merit. The Pennsylvania Supreme Court has
repeatedly made clear that immunity, including that provided by the PSTCA, is a non-waivable
defense. See e.g., McShea v. City of Philadelphia, 995 A.2d 334, 341 (Pa. 2010) ("The clear
intent of the [PSTCA] was to insulate the government from exposure to tort liability. Tort
immunity is a non-waivable, absolute defense.") (internal citations omitted); Tulewicz v.
Southeastern Pennsylvania Transp. Auth., 606 A.2d 427, 429-430 (Pa. 1992) (finding that "the
defense of immunity is non-waivable."); In re Upset Sale of Props., 560 A.2d 1388, 1389 (Pa.
1989)). In the instant case, denying Defendants the opportunity to raise the defense of
immunity under the PSTCA at this juncture, simply because they have not previously raised it,
would create the incongruous result whereby, should one or more of the defendants be entitled
to immunity, the Court would be forced to dismiss that defendant from the relevant claim
pursuant to either a Federal Rule of Civil Procedure 50(a) motion at trial or on any post-trial
motions should that defendant be found liable on a claim for which he/she/it are immune under
The Court also finds Plaintiff's second argument, the applicability of the actual malice or
willful misconduct exception, unpersuasive.
However, prior to addressing the applicability of this exception, the Court notes that,
regardless of whether immunity applies under the PSTCA to each of the defendants, Count
IV's broad inclusion of all defendants is inappropriate. Count IV alleges that all of the
defendants, which necessarily includes Botjer, breached their duty of care to the plaintiff by
hiring, and failing to supervise and train, Botjer. Logically, Botjer cannot be held liable for her
own hiring or failing to supervise or train herself. Therefore, Botjer must be dismissed from this
Count. Furthermore, Martin cannot be held liable for failure to train and/or supervise Botjer.
There is no record evidence that Martin, as Maintenance Director or Supervisor, was in any
way responsible for hiring, supervising and/or training Botjer, the Chief County Clerk. In fact,
the record evidence indicates that Botjer answered to the County Commissioners and was in a
supervisory position over Martin. (See Botjer Dep. at 28:4-5) (stating that she is Martin's
supervisor); (see also, id. at 8:8-9:4) (explaining that "[a]s Chief Clerk, I am the Administrative
Officer for the County. Human resources. I supervise the business office. I arrange the
calendar and agendas for the Commissioners. Represent the Commissioners at functions or
events or committees if they are unable to attend or if they designate me to do that. I am an
appointed person every time by the Commissioners.").
Because neither Botjer nor Martin may be held liable under Count IV, the only issue
remaining is whether the County, Smith, Fritz, and/or Kay are entitled to immunity pursuant to
Count IV of Plaintiff's Amended Complaint, entitled "Negligent Supervision/Hiring/
Training Violation of Common Law", sets forth the following allegations:
• "Defendants had a duty to protect Plaintiff from being abused by a public official and
assaulted and were required to properly hire, train, and supervisor [sic] Defendant
• "Defendants breached their duty when they failed to supervise Defendant Botjer
although they had knowledge of her propensity to engage in threatening, violent or
tumultuous behavior based on prior misconduct";
• "Defendants never trained Defendant Botjer not to assault co-workers or other
• "Since Defendants knew about Defendant Botjer's prior misconduct, they had a duty to
prevent the assault";
• "Defendants knew or should have known that allowing Defendant Botjer to work
unsupervised and untrained would result in her assaulting someone";
• "Due to Defendants breaching their duty, the Plaintiff was assaulted."
(Doc. 11, W66-71 ).3
With respect to Wayne County, the County is entitled to immunity pursuant to the
PSTCA. The Statute makes clear that, subject to the eight enumerated exceptions, the local
agency itself is entitled to immunity. It is only the employees themselves who may not be
entitled to immunity if their actions entail actual malice or willful misconduct. Here, Plaintiff
does not dispute that none of the exceptions set forth in the PSTCA apply and only argues that
the acts of certain defendants was willful. This is insufficient to overcome Wayne County's
assertion of immunity. See e.g., Viney v. Jenkintown Sch. Dist, 51 F.Supp.3d 553, 557 (E.D.
A review of these allegations demonstrates that Plaintiff misrepresents the basis of this Count. In
response to Defendants' claim that they are entitled to immunity, Plaintiff argues that "terminating an employee
because they reported a crime are [sic] acts of malice and willful misconduct." (Doc. 28, at 3). This argument
is inapposite where, here, Count IV is premised on allegations that Defendants failed to supervise Botjer and
train her not to assault co-workers. Count IV is not founded on any allegation of unlawful termination.
Pa. 2014) ("Pennsylvania courts have ... concluded that section 8550 only abolishes
immunity for willful misconduct which pertains to local agency employees ... and does not
affect the immunity of local agencies") (internal quotation marks omitted); see also, Sanford,
456 F3d at 315 ("Employees are not immune from liability under§ 8545 where their conduct
amounts to 'actual malice' or 'willful misconduct"') (emphasis added).
The Court therefore turns to whether there is record evidence to create a triable issue of
fact with respect to whether one or more of the County Commissioners, Smith, Fritz, and Kay,
acted with actual malice or engaged in willful misconduct such that they would not be entitled
Preliminarily, it is clear from the Amended Complaint that Count IV is premised on
negligence. Plaintiff has styled the allegations in this Count as alleging a duty, breach of that
duty by the Defendants, and a causal connection between the breach and injuries sustained by
him. None of Plaintiff's allegations are premised on intentional conduct.
Moreover, Plaintiff does not dispute that none of the enumerated exceptions to the
PSTCA apply here, instead arguing that "Defendants omitted a major exception that applies to
the instant case" i.e. actual malice or willful misconduct. (Doc. 28, at 2). However, Plaintiff fails
to cite to sufficient record evidence to support a claim that the conduct of Smith, Fritz, and/or
Kay amounted to anything more than negligence or, at worst, recklessness.
As explained by Magistrate Judge Carlson,
The plaintiff has supported this claim by noting that he had previously made
County officials or other supervisory personnel aware that Ms. Botjer had
previously behaved towards him in a manner that threatened violence. (Branning
Dep. at 35:25-37:25) (claiming that Ms. Botjer attempted to slap him in 2013.) He
also testified that he brought this incident to Defendant Smith's attention
immediately afterward. (Id., at 38:11-22.) This appears to form the basis of the
plaintiff's claim that the County had been placed on notice regarding Ms. Botjer's
propensity to resort to violence in the workplace.
(Doc. 24, at 25). Additionally, during Branning's deposition, he admitted that when he told Smith
about the 2013 incident, Smith advised him to tell his supervisor and "then go through the chain
of command." (Branning Dep. at 42:10-12). Branning does not assert that he was subject to
any other assaults, or attempted assaults, by Botjer between 2013 and 2015.
Even assuming that one or more of the defendants were on notice that Botjer had
attempted to slap Branning approximately two years prior to the "assault and battery" at issue in
this action, this, without more, is insufficient to create a genuine dispute of material fact as to
whether the defendants acted with actual malice or willful misconduct.
Plaintiff only cites to one case in support of his position that the negligent supervision
claim should be allowed to proceed to a jury and that the willful misconduct and actual malice
exception is applicable in the present case. (Doc. 28, at 2). However, Cimino v. Dunmore, 2005
WL 3488419 (M.D. Pa. 2005), is distinguishable from the present case. In Cimino, Plaintiff, a
janitor, was both verbally and physically harassed by a Dunmore Borough Police dispatcher
while she was cleaning the police station. At some point, the Chief of Police became aware that
the dispatcher was engaging in this behavior and ordered a captain in the police department to
record and review surveillance videos to "monitor the situation." However, although both the
Chief and Captain saw video surveillance evidencing that Plaintiff was being harassed several
times over the next few months, neither individual spoke to the police dispatcher about his
behavior or spoke to Plaintiff.4 Neither the Chief of Police nor the Captain informed Plaintiffs
private employer or any other Borough official or employee about the investigation or about the
police dispatcher's behavior. Approximately two months after the Chief of Police first became
aware of the possible misconduct, Plaintiff informed a different police captain of the harassment,
which led to a more detailed investigation into the matter. One month later, the Borough
suspended the police dispatcher. Id. at *1-4. The District Court found that the Chief of Police
and the Borough Manager were not entitled to immunity pursuant to the PSTCA with respect to
Plaintiffs negligent retention and supervision claim because "Plaintiff has presented sufficient
evidence to create a genuine issue of material fact that [those individuals] were on notice of the
harassment and knew that their failure to intervene would allow the harassment to continue or
worsen." Id. at *12.
Assuming that the District Court in Cimino was correct in its determination, there are
several key factual differences between that case and the present one. Unlike in Cimino, there
is no record evidence that Branning was subjected to any repeated physical harassment by
Botjer. Rather, Plaintiff has presented evidence of a single incident in 2013 which he alleges
purportedly should have put all the Commissioners on notice that Botjer would strike him again.
In contrast, in Cimino, the plaintiff was subject to repeated harassment of which at least one
defendant was aware for several months. The Chief of Police was therefore on notice that the
situation was continuing to occur, and possibly worsening. Here, there is no record evidence
4 The Police Chief spoke to Plaintiff after first witnessing the police dispatcher put his arms around
Plaintiff. Plaintiff denied that anyone was bothering her and the Police Chief never spoke to her again about
the issue, instead ordering his Captain to review and monitor video surveillance when Plaintiff and the police
dispatcher were working at the same time.
that Smith, or any other Commissioner, knew or had reason to believe that the situation would
re-occur. Furthermore, in Cimino, the defendants did not offer help to the plaintiff or instruct her
of possible actions she could take. In the present case, Branning admitted that when he told
Smith about the 2013 incident, Smith advised him to tell his supervisor and "then go through the
chain of command." (Branning Dep. at 42:10-12). Smith therefore did not ignore the situation,
but instead attempted to help Plaintiff obtain some form of relief. That Smith did not himself take
any further action or follow up with Plaintiff may constitute negligent behavior, but cannot be said
to reach the level of "actual malice" or "willful misconduct."
As a result, because the PSTCA permits recovery against a local agency or its
employee only for negligent acts that fall within the enumerated exceptions, which Plaintiff
does not dispute are inapplicable in the present case, and Plaintiff has failed to point to any
record evidence to create a triable issue with respect to whether the Commissioners' actions
amounted to anything more than negligence, or even recklessness, Plaintiff's claims based on
negligent supervision, hiring, and training are barred by the PSTCA. "Negligent hiring, training
and retention of an unfit supervisor is not one of the negligent acts for which immunity is
waived." Joyner v. Sch. Dist. of Philadelphia, 313 F.Supp.2d 495, 504 (E.D. Pa. 2004); see
a/so, Gines by Gines v. Bailey, 1992 WL 394512, at *5 (E.D. Pa. 1992) (dismissing claims of
negligent hiring, retention, and supervision as barred by the PSTCA).
In summary, the count for negligent hiring, supervision and training is a state law claim
that does not fall within one of the eight exceptions to the PSTCA. Thus, the County is entitled
to immunity and the Commissioners would only lose their immunity if their conduct amounted
to "actual malice" or "willful misconduct." Because both of these requirements necessarily
require a higher level of fault than mere negligence, and Plaintiff has failed to produce any
record evidence which may create an issue as to whether the actions of any of the
Commissioners met the requisite level of fault, the claim fails as a matter of law and
Defendants are entitled to summary judgment on Count IV.
For the reasons set forth above, upon de novo review of the R&R, the Court will sustain
Defendants' Objections, therefore dismissing Count IV of the Complaint, and adopt the
pending R&R in all other respects. 5
s Although the Court adopts the Magistrate Judge's recommendation in all other respects, the Court
wishes to make clear that, with respect to Counts I and V of the Amended Complaint, to the extent that Plaintiff
has attempted in those Counts to assert claims against Botjer, Martin, Smith, Fritz, and Kay, in their official
capacities, such claims are dismissed as superfluous in light of the pending Monell claims against Wayne
County in those Counts. Thus, only the claims against the County and the aforementioned defendants in their
individual capacities remain for trial.
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