Schrank v. Borough of Moosic

45 Pa. D. & C.4th 338, 2000 Pa. Dist. & Cnty. Dec. LEXIS 331
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedFebruary 7, 2000
Docketno. 95 CV 3249
StatusPublished

This text of 45 Pa. D. & C.4th 338 (Schrank v. Borough of Moosic) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schrank v. Borough of Moosic, 45 Pa. D. & C.4th 338, 2000 Pa. Dist. & Cnty. Dec. LEXIS 331 (Pa. Super. Ct. 2000).

Opinion

MINORA, J.,

[339]*339I. INTRODUCTION AND BACKGROUND

On or about July 10, 1995, this action was commenced through the filing of a writ of summons. A seven-count complaint was filed on February 20, 1996 alleging various claims for slander, negligence, fraud, wrongful termination and loss of consortium. Defendants filed preliminary objections on March 11, 1996 and the Schranks filed a seven-count amended complaint on April 9, 1996.

Count I of the amended complaint alleges that councilpersons Dolores Zurek, Robert Gronski, Maryann Nawrocki and Germaine Helcoski made slanderous statements concerning Mr. Schrank during the January 4, 1994 official borough council meeting. (Amended complaint ¶¶42-45.) Count II purports to state a cause of action for slander against Moosic Borough for the same alleged statements under the doctrine of respondeat superior. (Id. ¶¶46-48.) In Count III, Mr. Schrank alleges that former Mayor William McDonough, the mayor of Moosic Borough on January 4, 1994, was negligent and acted fraudulently in purportedly removing his name from the list of officers submitted to council on January 4, 1994. (Id. ¶¶49-53.) Count IV purports to state a claim for unlawful termination. (Id. ¶¶52-55.) Finally, Barbara Schrank alleges derivative claims for loss of consortium against the councilpersons, Moosic Borough and Mayor McDonough in Counts V through VII, respectively. (Id. ¶¶56-64.)

Defendants again filed a second set of preliminary objections on April 29,1996, which were granted in part and denied in part on July 25, 1996.

[340]*340Specifically, the court sustained, in part, defendants’ demurrer to Count I of the amended complaint and dismissed that count as it relates to councilpersons Nawrocki and Helcoski.

Extensive pretrial discovery including deposition testimony was elicited. On May 14, 1999, the defendants filed this instant motion for summary judgment and a brief in support thereof. On June 16,1999, plaintiffs filed an answer to defendants’ motion for suiúmary judgment and a brief in opposition thereto. Oral argument was conducted on November 16,1999, rendering this matter ripe for disposition.

II. STATEMENT OF LEGAL DEFENSES AND ISSUES RAISED IN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

The defense names the following legal defenses in support of its motion for summary judgment:

(1) The doctrine of absolute privilege accorded high public officials entitles a high public servant to absolute immunity for statements made within the scope of his official duties during an official meeting;

(2) The Pennsylvania Political Subdivision Tort Claims Act affords a municipality absolute immunity from a suit for defamation;

(3) A local agency official is immune from liability under the Pennsylvania Political Subdivision Tort Claims Act for the alleged negligent failure to satisfactorily perform his official duties;

(4) Plaintiff fails, as a matter of law, to state a claim for fraud where he does not allege that the defendant [341]*341made a false representation upon which he relied to his detriment;

(5) Plaintiff fails, as a matter of law, to state a claim for wrongful discharge where he was at all times an at-will employee subject to summary dismissal and where there is no alleged violation of public policy; and

(6) A spouse fails, as a matter of law, to state a claim for loss of consortium where defendants cannot be held liable to the claimant’s spouse.

We will deal with the legal defenses/issues in order unless one is dispositive of the instant matter.

III. THE STANDARD FOR SUMMARY JUDGMENT

Before addressing the six specific issues mentioned above, we must first set forth the standards for summary judgment.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure sets forth two bases for the entry of summary judgment. The rule provides in pertinent part:

“After the relevant pleadings are closed, but within such time as to not reasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of 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
“(2) 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 [342]*342the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When making this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P. 1035.1-1035.4; Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions [343]*343or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

IV. DOES THE DOCTRINE OF ABSOLUTE PRIVILEGE ACCORDED HIGH PUBLIC OFFICIALS ENTITLE A HIGH PUBLIC SERVANT (I.E., COUNCILPERSON) TO ABSOLUTE IMMUNITY FOR STATEMENTS MADE WITHIN THE SCOPE OF THEIR OFFICIAL DUTIES DURING AN OFFICIAL MEETING?

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Bluebook (online)
45 Pa. D. & C.4th 338, 2000 Pa. Dist. & Cnty. Dec. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schrank-v-borough-of-moosic-pactcompllackaw-2000.