McShea v. City of Philadelphia

995 A.2d 334, 606 Pa. 88, 2010 Pa. LEXIS 1140

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 2010
• Docket: 24 EAP 2007, 25 EAP 2007, 26 EAP 2007
• Status: Published

Opinions

OPINION

Justice EAKIN.

From 1987 to 1994, appellants, a class of 12,000 current and former City of Philadelphia employees, participated in a voluntary Deferred Compensation Plan, deferring receipt of certain compensation which was deposited in various investments. The City’s Director of Finance administered the Plan and had authority to designate a third party to handle routine management. From 1984 to 1992, the Public Employees Benefit Services Corporation (PEBSCO) contracted with the City to serve as the Plan’s third party administrator.

PEBSCO charged an annual fee for its services, which included selecting and promoting investment products, and providing investment guidance to Plan participants. In 1989, the contract was modified to include a surrender fee, equal to 5% of the Plan’s assets, payable to PEBSCO if the City terminated or failed to renew the contract without cause. In 1992, the City wanted to terminate its contract with PEBSCO without having to pay the surrender fee. Without the Director of Finance’s approval, the City used Plan funds to hire outside counsel to accomplish this. The City terminated the contract “for cause,” and sued PEBSCO in federal court for breach of contract;¹ PEBSCO counterclaimed. The parties settled; the City agreed to pay PEBSCO $200,000 in exchange for waiver of the surrender fee balance.

Meanwhile, the City redirected 85% of Plan funds, which had been invested with Lincoln National at 7.3% interest through 1994, to an account offered by Constitution Life Company paying 4.88% interest. When Constitution’s bond rating was downgraded, Constitution returned these funds to the City. For eight days, the City held these funds in a non-interest bearing account, later reinvesting them in an account paying 3.85%. Consequently, the Plan earned $3.5 million less through 1994 than it would have, had it remained with Lincoln.

Appellants filed this class action against the City in August, 1994. They alleged three counts in their amended complaint filed one month later. Count I alleged breach of fiduciary duty, and Count II requested an equitable accounting and audit of the Plan’s assets based on the alleged fiduciary duty violation set forth in Count I. Only Count III is relevant here, incorporating the previously alleged counts and averring:

48. In taking the actions and/or failing to take actions alleged above, the Defendants acted in a grossly negligent and reckless fashion in wanton disregard of the Plan and it’s [sic] participants^] rights and to the safety and productivity of the assets of the Plan.

49. As a result of the defendant’s gross negligence and/or recklessness as aforesaid, the Plan and its participants have suffered injuries that are compensable in damages in an amount in excess of $50,000.00.

WHEREFORE, Plaintiffs individually and on behalf of all Plan participants and the class sought to be certified herein demands judgment against the City in an amount in excess of $50,000.00, together with punitive damages, attorney’s fees, interest, costs and such further relief as the Court deems appropriate.

Amended Class Action Complaint, 9/9/94, at 20-21. Appellants attached the Plan document to their amended complaint.

The City filed preliminary objections, averring appellants failed to plead with sufficient specificity in Count III the acts the City allegedly committed in a grossly negligent fashion. See Pa.R.C.P. 1028(a)(8) (preliminary objection for insufficient specificity in pleading). Appellants countered that Count III explained the City’s actions were grossly negligent considering the City’s duties under the Plan. The City filed a memorandum supplementing its preliminary objections, arguing the Tort Claims Act’s governmental immunity provision barred Count III.² Citing City of Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993), the City claimed it could not waive its governmental immunity despite any Plan language suggesting otherwise. See id., at 1093-94 (holding ordinance did not abrogate immunity afforded City by Tort Claims Act).

The trial court dismissed the City’s preliminary objections. Following extensive discovery, both parties filed cross-motions for summary judgment. The trial court granted the City’s summary judgment motion on Counts I and II because they sounded in tort and were thus barred by the Tort Claims Act. Interpreting Count III as a contract claim, the trial court denied summary judgment in the City’s favor because Tort Claims Act immunity does not attach to contract claims. Following a bench trial, the trial court held the City was “grossly negligent, in breach of its contract with [appellants],” in managing the Plan. See Trial Court Opinion, 5/12/05, at 2. The trial court awarded appellants $3.7 million in compensatory damages. Trial Court Molded Verdict, 5/17/05, at 1-2.

The Commonwealth Court affirmed the trial court’s summary judgment rulings on Counts I and II, but reversed the trial court’s summary judgment order on Count III. The Commonwealth Court reasoned:

[Rjeview of the complaint’s averments reveals no explicit assertion of contract breach and no specific identification of any breached term of the Plan.... In concluding that the cause of action in Count III, which is clearly premised on allegations of carelessness in overseeing the administration of the Plan, survives immunity as a contract action, we must reluctantly conclude that common pleas erred. While we must admit to finding common pleas’ result appealing from the standpoint of equity and justice, we simply cannot read the above language as stating even an implied claim for breach of contract; it plainly states a cause of action for negligence.

City of Philadelphia v. McShea, Nos. 1252, 1338, and 1334 C.D.2005, unpublished memorandum at 14-15, 907 A.2d 682 (Pa.Cmwlth. filed September 13, 2006). Because Count III stated a tort claim, it fell within the Tort Claims Act’s grant of governmental immunity. The court determined the Plan’s language, specifically § 7.04,³ did not waive the City’s immunity. Id., at 15-16, 907 A.2d 682. Furthermore, the court concluded appellants’ claim did not fall within any of § 8542’s exceptions to governmental immunity. Id., at 16, 907 A.2d 682; see 42 Pa.C.S. § 8542 (enumerating various exceptions to governmental immunity).

We granted allocatur to determine “[wjhether the Commonwealth Court misapplied the pleading requirements of Pa.R.C.P. 1019 in interpreting Count III of [appellants’] amended complaint as asserting a tort claim rather than a contract claim[,]” and “[wjhether the Commonwealth Court misapplied Pennsylvania law when it held that the City was immune from liability under the Tort Claims Act[.J” McShea v. City of Philadelphia, 593 Pa. 361, 930 A.2d 1252 (2007) (table). Our standard of review is “limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law have been committed, or whether the trial court’s determinations demonstrate a manifest abuse of discretion.” Commonwealth, Department of Transportation, Bureau of Driver Licensing v. Tarnopolski, 533 Pa. 549, 626 A.2d 138,140 (1993).

When this Court entertains an appeal originating from a non-jury trial, we are bound by the trial court’s findings of fact, unless those findings are not based on competent evidence. The trial court’s conclusions of law, however, are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts.

Triffin v. Dillabough, 552 Pa. 550, 716 A.2d 605, 607 (1998) (citations omitted).

Appellants assert Count III was properly pled as a contract claim pursuant to Rule 1019(a). See Pa.R.C.P. 1019(a) (“The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.”). They contend they pled sufficient facts to demonstrate Count III was a contract claim based on § 7.04 of the Plan, which the trial court discerned to be a Contract between the City and Plan participants, under which the City agreed to be liable for losses caused by its gross negligence. Appellants claim their omission of the words “contract” or “breach of contract” was irrelevant because they pled the requisite facts on which a contract cause of action is based. They rely on Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 319 A.2d 914 (1974), which held a party’s failure to allege a specific cause of action will not prove fatal to its claims. They argue a contract claim lies where a contracting party negligently performed its contractual undertaking in general, relying on Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993).

Appellants add they were precluded by the “gist of the action” doctrine from suing the City in tort. This doctrine “maintain[s] the conceptual distinction between breach of contract claims and tort claims[,]” and precludes plaintiffs from recasting ordinary breach of contract claims as tort claims. eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.Super.2002) (citation omitted). Finally, appellants contend the Tort Claims Act is inapplicable because Count III sounded in contract.

The City asserts that because appellants claimed gross negligence and sought punitive damages, they stated a tort claim. The City contends appellants pled a specific gross negligence theory and waived any other causes of action in Count III. See Garcia v. Community Legal Services Corporation, 362 Pa.Super. 484, 524 A.2d 980, 982 (1987) (holding failure to plead separate causes of action waives unclaimed cause of action). It argues appellants failed to state the facts necessary to support a contract claim.

The City additionally claims appellants are attempting to avoid the governmental immunity defense by arguing Count III sounds in contract. See Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689, 693 (Pa.Cmwlth.2007) (“a plaintiff may not avoid the defense of governmental immunity by couching a claim for the recovery of tort damages under a breach of contract theory”). Finally, the City contends the Tort Claims Act immunizes it from liability for its negligent acts, and it cannot waive this defense.

Pennsylvania is a fact-pleading state. Kuisis, at 918 n. 8. “As a minimum, a pleader must set forth concisely the facts upon which his cause of action is based.” Line Lexington Lumber & Millwork Company, Inc. v. Pennsylvania Publishing Corp., 451 Pa. 154, 301 A.2d 684, 688 (1973). The complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335, 339 (1971) (“The purpose of [Rule 1019] is to require the pleader to disclose the ‘material facts’ sufficient to enable the adverse party to prepare his case.”) (citation omitted).

Rule 1019(a) requires that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). “Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.” Id., 1020(a). Thus, if Count III states a cause of action for breach of contract, it must be contained within Count III of the amended complaint.⁴

The necessary material facts that must be alleged for such an action are simple: there was a contract, the defendant breached it, and plaintiffs suffered damages from the breach. Hart v. Arnold, 884 A.2d 316, 332 (Pa.Super.2005) (“To successfully maintain a cause of action for breach of contract the plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.”) (citations omitted). There is no need to allege any degree of negligence, as negligence is irrelevant to a contract action, unless the alleged breach is based on a contractual duty to provide professional skills consistent with those expected in a given field. See Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 112 (1993) (attorney’s liability for malpractice based on contract’s terms).

In Count III, we find none of the necessary elements of a contract action. Count III does not allege the existence of a contract — it references “the Plan” but that is far short of alleging there was a contract between the parties. Likewise absent is any allegation the City breached a contractual duty, or that damages resulted from that breach.

What is present is a tort allegation. Count III provides, “In taking the actions and/or failing to take actions alleged above, the [City] acted in a grossly negligent and reckless fashion in wanton disregard of the Plan and it’s [sic] participants.... ” Amended Class Action Complaint, 9/9/94, at 20 (emphasis added). It demanded relief “[a]s a result of the [City]’s gross negligence and/or recklessness ... in an amount in excess of $50,000, together with punitive damages,⁵ attorney’s fees, interest, costs and such further relief as the Court deems appropriate.” Id., at 20-21 (emphasis and footnote added). Count III states a tort action in a manner that satisfies Rules 1019 and 1020; as a claim for breach of contract, it would not satisfy those same Rules. It is manifest a tort theory was posited, evidenced by the elements pled; it is equally obvious a contract breach was not pled. Interpreting this pleading to include a wholly separate cause of action only thwarts our Rules and the purpose behind them.

Although Pa.R.C.P. 126 requires Rule 1019 to be construed liberally, liberal construction does not permit unpled elements be pulled from thin air and grafted onto the pleading; it does not excuse the basic requirements of pleading. Where a pleading is straightforward, such as here, there can be no reworking of the claim so as to create a different theory of recovery. We are not construing an ambiguous statute, but a complaint drafted by a party, the very purpose of which is to alert the other party to that which must be defended.

The trial court engaged in an appealing analysis, but the fact remains appellants did not aver a breach of contract claim. This count alleges gross negligence, recklessness, and wanton conduct — it does not aver a contract, the breach of a contract, nor damages from such a breach. The cause of action it avers is therefore one sounding in tort, not contract.⁶

As Count III sounds in tort, the defendant City may claim protection under the Tort Claims Act. Appellants have maintained the personal property exception to governmental immunity applied, and the trial court’s ruling to the contrary was erroneous. That exception states:

Care, custody or control of personal property. — The care, custody or control of personal property of others in the possession or control of the local agency. The only losses for which damages shall be recoverable under this paragraph are those property losses suffered with respect to the personal property in the possession or control of the local agency.

42 Pa.C.S. § 8542(b)(2). We find the Commonwealth Court properly noted, “due to the City’s legal and equitable ownership of the Plan funds, [appellants] cannot fit their claim within the personal property exception in order to avoid the bar of immunity.” McShea, at 16, 907 A.2d 682; see also City of Philadelphia Employees’ Restated Deferred Compensation Plan, Effective Date: January 1, 1989, § 4.06, at 6. The governing law at the time provided deferred compensation remained the employer’s property. See 26 U.S.C.A. § 457(b)(6) (West Supp.1993), amended by 26 U.S.C.A. § 457(b)(6) (1996); 72 P.S. § 4521.2(h) (Supp.1993), amended by 72 P.S. § 4521.2(h)(l)-(4) (1998).⁷

The clear intent of the Tort Claims Act was to insulate the government from exposure to tort liability. See Dean v. Commonwealth of Pennsylvania, Department of Transportation, 561 Pa. 503, 751 A.2d 1130,1132 (2000). Tort immunity is a non-waivable, absolute defense. See In re Upset Sale of Properties, 522 Pa. 230, 560 A.2d 1388, 1389 (1989). In holding the City could not incur liability on Count III, the Commonwealth Court relied on Rodriguez v. City of Philadelphia, Department of Human Services, 657 A.2d 105 (Pa.Cmwlth.1995). In Rodriguez, the Commonwealth Court held an indemnity provision in a lease under which the City was a tenant could not operate as a contractual waiver of the City’s immunity. Rodriguez, at 108. In an earlier case, the Commonwealth Court opined, “[T]he legislature never intended for a local agency to be held liable for tort damages under a contract theory.” Sims v. Silver Springs-Martin Luther School, 155 Pa.Cmwlth. 619, 625 A.2d 1297,1302 (1993). Thus, pursuant to § 8541’s plain language, and this Court’s precedent interpreting the legislature’s clear intent to immunize political subdivisions from tort — not contract — liability, a political subdivision cannot waive tort immunity by contract. See 42 Pa.C.S. § 8541; Sphere Drake Insurance Company v. Philadelphia Gas Works, 566 Pa. 541, 782 A.2d 510, 515 (2001) (Tort Claims Act’s overall purpose limits governmental exposure to tort liability); In re Upset Sale of Properties, at 1389 (tort immunity is non-waivable defense).

Although § 7.04 indicates the City would be liable for its gross negligence, these words create no tortious liability, and a contract breach was not pled.

For the foregoing reasons, the Commonwealth Court’s order is affirmed. Jurisdiction relinquished.

Justices SAYLOR, TODD and ORIE MELVIN join the opinion. Justice BAER files a dissenting opinion in which Chief Justice CASTILLE and Justice McCAFFERY join.

1 . This lawsuit revealed to Plan participants, for the first time, the facts forming the basis of their subsequent claims.

2 . The Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541, provides:

Except as otherwise provided in this subchapter, no local agency shall be 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.C.S. § 8541.

3 . Section 7.04 of the Plan provides:

The PARTICIPANT specifically agrees that in the absence of gross negligence, fraud or willful misconduct, neither the EMPLOYER, the Director of Finance, the ADMINISTRATOR nor any EMPLOYEE thereof shall be accountable or liable for any investment loss or any other loss, charge or expense of any kind incurred under this PLAN and the PARTICIPANT alone shall bear the risk of any investment loss, or other loss, charge or expense of any kind incurred under this PLAN.

City of Philadelphia Employees’ Restated Deferred Compensation Plan, Effective Date: January 1, 1989, § 7.04, at 9.

4 . Although appellants incorporated their prior allegations into Count III, it does not appear they attempted to plead a contract claim anywhere else in the Amended Complaint, nor do appellants argue such a claim is present other than in Count III.

5 . Punitive damages are awarded in tort actions, not for breach of contract. See Ash v. Continental Insurance Company, 593 Pa. 523, 932 A.2d 877, 881 (2007) (holding punitive damages awarded in tort actions).

6 . Section 7.04 may have arguably created a contract relationship, wherein the City agreed to assume liability for acts of gross negligence; however, that question is not before us.

7 . We do not reach a conclusion as to whether 42 Pa.C.S. § 8542(b)(2)’s exception to immunity applies to what appears to be governing federal law because appellants failed to preserve a claim under § 8542.