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.