Opinion
Civil Action No. 04-3030.
February 11, 2005
MEMORANDUM AND ORDER
It seems appropriate that we begin the next chapter of this case in the season of Groundhog's Day. Like Bill Murray's character in the movie, Phil Connors, who is forced to repeat the same day over and over again, we once again face the facts of this case. And, so we begin with Sonny and Cher singing "I Got You Babe," and the disk jockeys shouting, "Rise and shine campers, and don't forget your booties, `cause it's cold outside today." The history of this case is long and sordid and we will review the facts from Devore I only to the extent necessary to rule on the motion before the court.
In March of 2003, a jury awarded Mr. Devore $530,000 based on his claim that his employment with the Philadelphia Police Department was terminated in retaliation for his turning in his partner for stealing a cell phone. Following the verdict, but prior to the court's ruling on post-verdict motions and Plaintiff's attorneys' fees petitions, the City and Mr. Devore advised the court that they had reached a settlement agreement. The settlement provided that the City would pay Mr. Devore $400,000, vest him in his pension, and provide the contributions to the pension plan that it would have made had Mr. Devore not been terminated. In addition, the City agreed that within 30 days of the settlement, they would expunge Mr. Devore's record and refer to him as retired from the Police Department. On June 25, 2003, this court dismissed the case pursuant to Local Rule of Civil Procedure 41.1(b), while retaining jurisdiction to enforce the settlement.
We note that Mr. Devore had received an Order of Expungement from the Common Pleas Court of Philadelphia County on November 1, 2002.
In January, 2004, the court was informed that the City had not complied with all of the conditions of the settlement agreement. Despite the payment of $400,000, the City had failed to expunge Mr. Devore's record and had failed to vest him in his pension. Originally, in response to the breach, the court issued an Order enforcing the settlement because the City was considering reinstating Mr. Devore.
Unfortunately, the hopes for Mr. Devore's reinstatement did not last long, and, on February 4, 2004, this court issued a Memorandum and Order offering Mr. Devore the option of keeping our enforcement Order intact or obtaining a new Order, vacating the settlement agreement. In the event he chose enforcement, we advised him that he could file a separate action for breach of the settlement agreement. If he chose to vacate the settlement agreement, we explained that the jury's verdict would be reinstated and court would proceed to address the postverdict motions and motions for attorneys' fees. See Devore I, No. 00-3598, Memorandum and Order, Feb. 6, 2004, at 3 (Hart, M.J.).
Mr. Devore chose to vacate the settlement. Thereafter, the court ruled on the postverdict motions. In doing so, we remitted the backpay award, finding that the jury's award for backpay in excess of $188,667 was not supported by the evidence. Subsequently, we granted the Plaintiff's motion for pre- and post-judgment interest, and awarded Mr. Devore attorneys' fees and costs, resulting in a total award of $598,536.24.
Now, Mr. Devore has filed suit against the City, the Mayor, the Police Commissioner, and three unnamed city workers, alleging that the failure of the Defendants to expunge his records and provide him a neutral reference, after agreeing to do so in the settlement, is a further act of retaliation, in violation of § 1983, Title VII, and the PHRA. Mr. Devore also claims that the Defendants' actions constituted a breach of the agreement, fraud, and a violation of state law regarding the release of expunged information.
The Defendants have now moved for partial summary judgment.
Count III — Title VII
First, the Defendants claim that the individual defendants should be dismissed from Count III of the Complaint. In Count III, the Plaintiff alleges violations of Title VII and the Pennsylvania Human Relations Act, ("PHRA"). The Plaintiff concedes that the individual Defendants are not liable under Title VII. Therefore, to the extent Count III alleged Title VII liability against the individual Defendants, judgment is granted in favor of the individual Defendants. Section 955(e) of the PHRA, however, provides for individual liability. It forbids "any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice. . . ." Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996) (quoting 43 Pa.C.S.A. § 955(e)). Therefore, the Plaintiff's claims in Count III alleging individual liability for a violation of the PHRA survive.
After the filing of the Motion for Partial Summary Judgment, the Plaintiff filed an Amended Complaint. Although the Defendants complain that the Plaintiff did not seek permission for the filing, the court did discuss an amendment during the telephone conference and granted Plaintiff permission to amend his Complaint, with respect to Count VII. After reviewing the Amended Complaint, it appears that Plaintiff's counsel misinterpreted the court's statement to allow amendment of the entire Complaint. Because the Defendants do not oppose the amendment, we will permit it and require the Defendants to respond within twenty days of the date of this Memorandum and Order.
Counts II, IV, and V — Conspiracy, Breach of Contract, and Fraud
The Defendants next assert that the claims based on the rescinded settlement agreement must fail. Because the Plaintiff elected to have the Court vacate the settlement agreement, the Defendants argue that the Plaintiff may not now recover damages for breach of the vacated agreement. In Counts II, IV, and V, Devore claims that the Defendants' actions in breaching the settlement agreement resulted in his being denied employment by potential employers, such as the Pennsylvania State Police. According to Devore, he indicated in employment applications that he was "retired" from the Philadelphia Police Department, as was agreed to in the settlement agreement. However, when these potential employers checked with the Police Department or other City officials, they reported that Devore had been disciplined and terminated. (Amended Complaint, at ¶ 45). Thus, Devore contends that he was not hired by these potential employers because they viewed him as a dishonest person, who lied about the nature of his separation from the Philadelphia Police Department. (Amended Complaint, at ¶ 45).
Determining what survives the summary judgment stage requires an analysis of the election of remedies doctrine. The late, Honorable Joseph McGlynn had occasion to explain the doctrine in a breach of contract case. See Hartman Plastics, Inc. v. Star International LTD-USA, Nos. 97-2679; 97-2734, 1998 WL 643864 (E.D.Pa. Sept. 18, 1998). A jury awarded damages to the aggrieved party, Star. Star then sought to amend the judgment to enforce certain provisions of the original contract. Applying the election of remedies doctrine, Judge McGlynn denied Star's motion, finding that the damages awarded by the jury and the injunctive relief later sought by Star were "merely different means of adjudicating the same issue, i.e., the affirmative relief due Star as a result of Hartman's breach of the Agreement."
In Pennsylvania, "[a]n election of remedies includes the deliberate and knowing resort to one of two inconsistent paths to relief." West Middlesex Area Sch. Dist. v. Commonwealth, Pa. Labor Relations Bd., 55 Pa.Cmwlth. 404, 423 A.2d 781, 783 (Pa.Commw.Ct. 1980). "[T]he adoption, by an unequivocal act, of one of two or more inconsistent remedial rights has the effect of precluding a resort to others." Wedgewood Diner, Inc. v. Good, 368 Pa.Super. 480, 534 A.2d 537, 538 (Pa.Super.Ct. 1987) (quoting "Election: Rescission or Damages," 40 A.L.R.4th 627, 630-31). "[T]o be inconsistent the remedies in question must be different means of adjudicating the same issues." West Middlesex Area Sch. Dist., 423 A.2d at 783-84. A party makes a conclusive election or remedies which will bar later resort to an inconsistent remedy when: (1) the party knows his rights, (2) has carried his case to a conclusion, and (3) has obtained a decision on the issues involved. Wedgewood Diner, 534 A.2d at 539 (citing 25 Am.Jur.2d Election of Remedies § 19).Hartman Plastics, at *4.
Here, the Defendants argue that Devore's choice to rescind the settlement agreement in favor of the jury's verdict prohibits his attempt to obtain a recovery based upon a breach of that agreement. The Plaintiff counters that the remedies he seeks are not inconsistent. They are not "different means of adjudicating the same issues." Hartman Plastics, supra. The damages which the Plaintiff was awarded in Devore I, were for the Defendants' violation of his civil rights in terminating his employment for engaging in protected activity. He now seeks restitution, i.e. to be put in the place he was prior to the settlement agreement.
The key to the argument is determining how to categorize the relief that Devore now seeks. If it is restitution, as Devore argues, his rescission allows such recovery. If, as the Defendants argue, Devore is seeking damages for the breach, he is not entitled to such damages. See Smith v. Brink, 561 A.2d 1253, 601-02 (Pa.Super. 1989) ("In a breach of contract suit, the plaintiff either may rescind the contract and seek restitution or enforce the contract and recover damages based on expectation.").
Devore argues that he has not been restored to the status quo that existed before the Settlement Agreement because potential employers now view him as a liar. Therefore, the remedy that he seeks is "restitution." The Defendants argue that there is no way to "erase a fact from someone's mind" and refer to Devore's argument as seeking some type of "cosmic restitution." (Defendants' Reply, at 3). Rather, "Devore's remedy for this alleged harm falls squarely within the province of money damages." (Defendants' Reply, at 3).
Despite Plaintiff's mental machinations, the remedy he seeks is clearly damages for the breach. The Defendants' failure to abide by the settlement agreement allegedly resulted in economic damages to him — his inability to secure employment. Restitution, on the other hand, is based on the concept of preventing unjust enrichment. See Sevast v. Kakouras, 841 A.2d 1062, 1067 (Pa.Super. 2003) ("Restitution is a principle of quasi-contract designed to effect fairness and equity where a benefit has been unjustly conferred."); Fidelity Fund, Inc. v. DiSanto, 500 A.2d 431, 438-39 (Pa.Super. 1985).
Here, the Defendants were not unjustly enriched. Despite Plaintiff's argument that he did not receive the full amount of the jury's verdict, it was carefully explained to him that, if he chose to rescind the settlement agreement, the case would be put in the same posture it stood at the time the agreement was entered. At that time, post verdict motions were pending. As a result of the court's ruling on those motions, the front pay award was remitted.
Because we find that the damages Plaintiff seeks in his fourth (breach of contract) and fifth (fraud) counts violate the election of remedies doctrine, we will dismiss them. Additionally, to the extent Plaintiff seeks these damages for the breach in the context of his second count (conspiracy), we will also dismiss the claim.
The Plaintiff's claimed loss of his City pension benefits also does not fall in the category of restitution. Plaintiff's entitlement to the pension benefits arose only under the settlement agreement. The jury did not and could not restore those benefits in Devore I.
We find support for our conclusion in a decision by the Seventh Circuit Court of Appeals, Burrus v. American Casualty, 518 F.2d 1267 (7th Cir. 1975), cited with approval by the Superior Court of Pennsylvania. Smith v. Brink, 561 A2d. 1253, 1256 (Pa.Super. 1989) (get subsequent history).
The law is clear . . . that where a party has two coexisting but inconsistent remedies and elects to prosecute one such remedy to a conclusion, he may not thereafter sue on the other remedy. Where an agreement has been entered into to compromise and settle a tort claim, moreover, an action on the original tort is inconsistent with an action on the contract. Thus, when a settlement contract is breached, the plaintiff has two coexistent but inconsistent remedies available: he may treat the compromise agreement as rescinded and sue on the original tort, or he may sue on the contract. The plaintiff may not, however, prosecute one of these remedies to judgment and then sue on the other.Burrus, at 1269.
Counts I, II, and III — Retaliation and Conspiracy
The Defendants next seek summary judgment on the claims that are based on claims previously decided in Devore I. To the extent the Plaintiff bases his current claims on the activities litigated inDevore I, we will grant the Defendants' Motion. In Devore I, the Plaintiff claimed that the City and certain officials in the Police Department retaliated against him for turning in his partner for using a stolen cell phone. Devore reiterates these activities in the "Material Facts" section of his Amended Complaint. See Amended Complaint, ¶¶ 27-39. In his Amended Complaint, Devore specifically refers to the activities previously litigated in Devore I. See Amended Complaint, ¶¶ 53, 62, 76. Throughout the remainder of the Complaint, Plaintiff paints with a broad stroke, referring to retaliation based on his "engaging in protected activity." To the extent Devore bases his claims on the allegation that the Defendants intentionally breached the settlement agreement in further retaliation for some or all of Devore's previous protected activity (turning in his partner, bringing the first lawsuit, winning the first lawsuit), he may proceed. However, to the extent the Plaintiff bases his current claims on any conduct of the Defendants that was actually litigated in Devore I, such claims are barred by collateral estoppel. See Ehly v. City of Philadelphia, 2004 WL 2583818, at *2 (3d Cir. Nov. 9, 2004). At this point, it is not necessary for the court to determine the extent to which a jury shall be informed of the prior activities and verdict. However, to the extent any claims presented in Devore II are based on the activities previously litigated, they are dismissed.
Counts V and VII — Fraud and Emotional Distress
The Defendants argue that they enjoy immunity against Plaintiff's claims of fraud, intentional misrepresentation, emotional distress, and defamation. The Pennsylvania Political Subdivision Tort Claims Act provides that "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.A. § 8541. Thus, argues the City, it is immune from these claims. Further, the individual Defendants claim that they are immune because "[a]n employee of a local agency is liable for civil damages on account of any injury . . . caused by acts of that employee which are within the scope of his office or duties only to the same extent as his employing local agency." 42 Pa.C.S.A. § 8545. Thus, if the Tort Claims Act provides immunity to the City, it must also provide immunity to the individual employees.
The Tort Claims Act is not without exception, however. The Act provides for eight exceptions: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. 42 Pa.C.S.A. § 8542(b). According to the Plaintiff, the City had a duty to care for and control the information and papers regarding his termination and criminal history. Thus, argues Devore, the disclosure of the records that had been ordered expunged falls within the "care, custody or control of personal property" exception.
After reviewing the statute and Pennsylvania caselaw regarding the scope of this exception to the Tort Claims Act, we conclude that the releasing of the expunged information does not fall within the "care, custody or control of personal property." The Act states:
The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: . . .
(2) 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.A. § 8542(b)(2). The state courts have construed this exception to require property loss, not personal or emotional loss. See Kearney v. City of Philadelphia, 616 A.2d 72, 75 (Pa.Commw.Ct. 1992). Here, in Count VII, Devore is claiming that he suffered emotional distress and his reputation suffered as a result of the release of the expunged records. Hence, the exception to immunity does not apply. Similarly, to the extent Devore seeks damages for humiliation and mental anguish in his Fifth Count — Fraud/Intentional Misrepresentation, the exception does not apply.
Moreover, in his Fifth Count, Devore seeks relief for Intentional Misrepresentation and Fraud. The Tort Claims Act applies to injuries caused by negligent acts. 42 Pa.C.S.A. § 8542(a)(2).
Section 8542(a)(2) mandates that the injury must be caused by negligent acts of the agency or its employees. This subsection expressly states that negligent acts "shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct."Kearney, at 74 (quoting 42 Pa.C.S.A. § 8542(a)(2)). Thus, the Defendants enjoy immunity to the claims of fraud and intentional misrepresentation.
We also note that the Commonwealth Court found that the improper maintenance of official records did not fall into the exception to the Tort Claims Act. In Bufford v. Pa. Dept. of Transportation, 670 A.2d 751, 753-55 (Pa.Commw.Ct. 1996), the Plaintiff was detained based on an inaccurate driving record, maintained by the Department of Transportation. As a result of an error in the records keeping, the Plaintiff's driving record reflected that he had a suspended license. He brought suit against the Department of Transportation, but the court found that the release of inaccurate information did not fall into the "care, custody or control of personal property" exception.
To hold otherwise would create a situation where, each time a Commonwealth agency makes a negligent decision and then records that decision in a public document, or overlooks something in an examination of its records, or further, negligently records and stores data which is in any way inaccurate, immunity would be waived under the personal property exception. That exception would thus become a mechanism for the recovery of damages inflicted by administrative decision making and the negligent recordation of any information first stored and then disgorged by any Commonwealth agency, and we hold that the General Assembly did not intend such a result.Bufford, at 755.
For all of these reasons we conclude that the actions of the City and/or its officials in releasing Devore's records do not fall within the exception to the Tort Claims Act. Thus, we will grant the Defendants' motion with respect to Counts V and VII to the extent the City and its officials and employees, acting in their official capacity, are immune from suit. Broadly construed, there are allegations in the Amended Complaint that could support individual liability on the part of the individual Defendants. See Amended Complaint, at ¶¶ 77, 117. Therefore, the claims in Counts V and VII against the individual Defendants survive this Motion. Likewise, although the Defendants did not specifically challenge Count VI, the state claim for releasing expunged information, we find that the same logic applies. The City and its officials, acting in their official capacity are immune from suit. However, the individual defendants, acting in their individual capacity do not have the benefit of immunity.
As an alternative, Devore argues that immunity is waived because a separate section, 18 U.S.C. § 9183 allows an action for damages for the violation of the Criminal History Record Information Act. See 18 Pa.C.S.A. § 9101. The problem with the Plaintiff's argument is that it ignores the language of the Political Subdivision Tort Claims Act. Liability, for purposes of the Tort Claims Act, requires that the damages be recoverable under common law or a statute, and the injury was caused by the negligent act of an agency or employee of an agency that falls into one of the exceptions to immunity. 42 Pa.C.S.A. § 8542(a). Thus, it is not enough that a statute exist prohibiting the actions of the agency. Rather, the Plaintiff must also establish that the injury was caused by negligence that falls into an exception to immunity. As we previously discussed, the actions alleged here do not.
The Defendants also challenge the claims for emotional distress because Plaintiff failed to plead any physical injury in his original Complaint. This was discussed in a telephone conference with the Court and the Plaintiff has amended his Complaint to include an allegation of physical injury. See Amended Complaint, at ¶ 119.
The court "possess[es] the power to enter summary judgment sua sponte." Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).
Punitive Damages
Finally, the Defendants argue that punitive damages are barred against the City and the individual Defendants because the Plaintiff "clearly sued them in their official capacity only."See Defendants' Reply, at 7. The Plaintiff concedes that the punitive damages are not available against the City for the Title VII or the § 1983 claims. However, the Plaintiff maintains that punitive damages are available against the individual defendants for the state law claims and the civil rights claim. As we previously found, broadly read, there are allegations in the Amended Complaint that could support individual liability. Therefore, at this juncture, we will allow the Plaintiff's claim for punitive damages to stand against the individual defendants.
Conclusion
After carefully reviewing the Amended Complaint and the rulings contained in this Memorandum, the following is a summary of the issues remaining in the case.
Count I — § 1983 — To the extent the Plaintiff bases his allegations on Defendants' conduct occurring after Devore I, he may proceed on this Count.
Count II — Conspiracy — Dismissed.
Count III — Title VII PHRA — The Individual Defendants are dismissed from Title VII. The rest of this Count may proceed, but only as to Defendants' alleged conduct occurring after Devore I.
Count IV — Breach of Contract — Dismissed
Counts V through VII and Punitive Damages — These Counts may proceed only as against the individual defendants acting in their individual capacity.
An appropriate Order follows.