Cook v. New Castle Area Sch. Dist.

25 Pa. D. & C.5th 33
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJuly 15, 2011
DocketNo. 11973 of 2007
StatusPublished

This text of 25 Pa. D. & C.5th 33 (Cook v. New Castle Area Sch. Dist.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. New Castle Area Sch. Dist., 25 Pa. D. & C.5th 33 (Pa. Super. Ct. 2011).

Opinion

COX, J.,

Before the court for disposition [35]*35is the motion for summary judgment filed on behalf of the defendants New Castle Area School District, George Gabriel, Fred Mozzocio and Paul A. Fulena, in which they argue the following:

I. The plaintiff did not properly transfer this matter from Federal Court to the Court of Common Pleas in accordance with 42 Pa.C.S.A. §5103(b);
II. The plaintiff is precluded from relitigating his claim of retaliation by the doctrine of collateral estoppel because that issue was already decided in Federal Court;
III. The plaintiff has failed to establish a causal relationship between the plaintiff’s speech and any action by the New Castle School District that was adverse to the plaintiff’s employment;
IV. Any limitation on speech that occurred in this matter was permissible as a matter of law; and
V. The plaintiff’s claim for attorney fees or other monetary damages is not recognized in actions brought pursuant to the Pennsylvania Constitution.

At oral argument, the plaintiff withdrew all claims against George Gabriel and Paul A. Fulena regarding a newly-created custodial position, so the motion for summary judgment is granted as to George Gabriel and Paul A. Fulena.

The plaintiff Daniel Cook has been employed by the New Castle Area School District (hereinafter “NCASD”) as a custodian since 1986. Additionally, the plaintiff was [36]*36involved in local politics, which included installing signs in yards, distributing campaign literature, working at the polls, arranging social gatherings and soliciting campaign contributions for candidates. It must be noted that the plaintiff did campaign work during the 2007 primary election for the defendant Fred Mozzocio, who is a member of the Board of Directors of the NCASD and was board president from December 2004 until December 2007.

The plaintiff later decided that he would support three female candidates for election to the NCASD Board of Directors in the general election. The names of those candidates were Andrea Przybylski, Mary Ann Tofel and Barbara Razzano. The general election was held on November 6, 2007. On the morning of the election, the plaintiff asked Jackie Trott, a cafeteria worker, which candidates she was supporting for school board. The plaintiff informed Ms. Trott he was supporting “the girls”, referring to Ms. Przybylski, Ms. Tofel and Ms. Razzano. Subsequently, Ms. Trott informed him that she was going to work at the polls at Croton United Methodist Church for Mr. Mozzocio once she finished her work shift. Mr. Cook was on his break at the time of the conversation with Ms. Trott, but there is no evidence produced by the plaintiff to establish that Ms. Trott was also on her break. Later that morning, Andrew Gangliero, the principal at George Washington Intermediate School, approached the plaintiff in the hallway and notified him that Mr. Mozzocio called the school in reference to the plaintiff’s conversation with Ms. Trott. Mr. Gangliero then informed the plaintiff that Mr. Mozzocio said, “if Dan Cook didn’t stop talking about him and the election with the girls in the kitchen, he was going to come up to the school to see Mr. Cook, and things [37]*37could get ugly.” The plaintiff immediately informed Mr. Fulena and Mr. Gabriel about the remark but no action was taken by either individual or any other party or entity. Also, there was no evidence produced that Mr. Mozzocio came to the school or that any other comments were made, nor did the plaintiff produce any evidence that his political activities were curtailed or his employment affected in any manner.

Initially, the plaintiff filed suit in state court for claims under 42 U.S.C. §1983 and Article I, Section 7 of the Pennsylvania Constitution for violations of the plaintiff’s right to free speech. However, the defendants removed the case to the United States District Court for the Western District of Pennsylvania. On December 16, 2008, Federal District Court Judge Gary L. Lancaster rendered a decision to dismiss the 42 U.S.C. §1983 claim and ruled that the defendants were permitted to limit that type of speech under federal law, but the court declined to exercise its supplemental jurisdiction over the state law claim for a violation of Article I, Section 7 of the Pennsylvania Constitution. The plaintiff appealed that decision to the United States Court of Appeals for the Third Circuit. That court affirmed the ruling of the Federal District Court and reasoned that the statement made by Mr. Mozzocio was at most a verbal reprimand which was not retaliatory conduct that adversely affected the plaintiff’s First Amendment rights under the United States Constitution. The Third Circuit-Court of Appeals did not address whether Article I, Section 7 of the Pennsylvania Constitution applied to the current case. On January 21, 2009, the plaintiff filed a Certification of Transfer under 42 Pa.C.S.A. §5103(b) (2), to which he attached a copy of the docket entries from [38]*38Federal District Court and a complaint containing the claim under article I, section 7 of the Pennsylvania Constitution to return the case to state court. The defendants have now filed a motion for summary judgment.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear [39]*39and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v.

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Cite This Page — Counsel Stack

Bluebook (online)
25 Pa. D. & C.5th 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-new-castle-area-sch-dist-pactcompllawren-2011.