A. & J. Cortese, et al. v. West Jefferson Hills School District, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony and Joni Cortese, as husband and wife and as parents and natural guardians of James Cortese, a minor, Appellants v. West Jefferson Hills School District, Adam Lotis, Matthews Bus Company, Inc., William Cherpak, T.J. Srsic, George Wilson, John Mitruski, John Yogan, Keith Pancoast, Frank Brettschneider, Robert Ando, Thomas Berrich, Patricia Smith, Randall Sydeski, Andy Palaggo and John Lozosky BEFORE: : : : : : : : : : : : : : : : : No. 53 C.D. 2008 Submitted: October 14, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: December 9, 2008 Anthony and Joni Cortese, as husband and wife, and James Cortese, a minor, (collectively Appellants ) appeal from the January 9, 2007 order of the Court of Common Pleas of Allegheny County (trial court) granting Appellees motion for summary judgment1 and dismissing all claims, except as to Appellee Adam Lotis.2 We affirm primarily on the basis of the trial court s attached opinion, but deem it necessary to discuss briefly the applicability of governmental immunity under Sections 8541 and 8542 of the Judicial Code3 in light of the trial court s failure to do so. In July 2002, high school student James Cortese was the victim of a hazing incident while on a school bus returning from a football camp held at Edinboro University.4 On October 8, 2004, Appellants instituted an action in Allegheny County against student Adam Lotis, the bus company,5 the school 1 When reviewing the granting of a motion for summary judgment, a trial court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Flood v. Silfies, 933 A.2d 1072, 1074 (Pa. Cmwlth. 2007). Our review of the trial court s action in this regard is plenary. 2 On September 12, 2007, the trial court entered a judgment against Lotis in the amount of $3000 and ordered him to dismiss all claims against Appellants with prejudice within the next seven days or suffer additional sanctions. On October 4, 2007, Appellants and Lotis filed a joint praecipe to discontinue all claims between all Appellants and Lotis. Settlement of the case as to Lotis, the remaining party, rendered the prior January 9, 2007 order granting summary judgment final under Pa. R.A.P. 341. Therefore, Appellants October 12, 2007 appeal, erroneously filed in the Superior Court but subsequently transferred to our court, was timely. K.H. v. J.R., 573 Pa. 481, 826 A.2d 863 (2003). 3 42 Pa.C.S. §§ 8541-8542. 4 Fellow student Adam Lotis tackled Cortese in the aisle and placed his exposed genitals on Cortese s face. Other students on the bus paid Lotis about $10 for performing this act. 5 In a November 24, 2004 order, the trial court granted the bus company s preliminary objections and dismissed Appellants complaint against it. In their October 12, 2007 Notice of Appeal, however, Appellants appealed only from the January 9, 2007 order granting the summary judgment motion and from the February 7, 2007 order denying their request for reconsideration, the latter of which is not a reviewable order. In addition, Appellants neither addressed in their appellate brief any of the issues that the bus company raised in their preliminary objections nor served the company with the Notice of Appeal. Therefore, Appellants waived their opportunity to challenge the order granting the company s preliminary objections and any right to raise issues regarding the company on appeal. Accordingly, we strike that portion of Appellants brief wherein they make arguments concerning the bus company. 2 district and numerous district employees. The complaint included Counts of negligence (Lotis, the bus company, Coach Cherpak), intentional infliction of emotional distress (Coach Cherpak), civil conspiracy (school district) and violation of Title IX of the Education Act Amendments of 1972, 20 U.S.C. §§ 1681-1688, (district).6 The gravamen of the complaint were the allegations that, although most of the football coaching staff, the acting principal and teachers became aware of the hazing incident soon after it happened, no one took any action during the regular football season either to investigate it or to discipline Lotis. Much of the complaint focuses on Coach Cherpak, who was present at the camp but did not ride the bus with the players. As noted above, the bus company s preliminary objections were granted in 2004. Following numerous depositions, the remaining Appellees filed a motion for summary judgment in October 2006. In January 2007, the trial court granted this motion, identifying Appellants best evidence in support of each Count and explaining why the evidence was insufficient to make out a prima facie case for the respective causes of action. The trial court did not, however, address governmental immunity, which Appellees pled in their New Matter. Section 8541 of the Judicial Code provides that [e]xcept 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. A school district 6 Title IX prohibits sexual discrimination in any educational program or activity receiving federal financial assistance. In Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), the United States Supreme Court held that a private right of action against a school board could lie for student-on-student sexual harassment if the board acted with deliberate indifference to acts of such harassment which were sufficiently severe, pervasive and objectionably offensive. 3 is a local agency for purposes of governmental immunity. See Petula v. Mellody, 631 A.2d 762 (Pa. Cmwlth. 1993). Pursuant to Section 8542(a) of the Judicial Code, a party who seeks to impose liability upon a local agency must establish that: (1) a common law or statutory cause of action exists against the local agency for a negligent act of the agency or its employee acting within the scope of his employment; and (2) the negligent act falls within one of the exceptions to governmental immunity specifically enumerated in Section 8542(b) of the Judicial Code. 42 Pa. C.S. § 8542(a) and (b). The only negligence counts now before us are those against Coach Cherpak.7 In those Counts, Appellants alleged that Cherpak failed to provide adequate supervision on the bus, failed to properly instruct the team about hazing, failed to enforce the school s hazing policy and failed to notify the school and law enforcement authorities about the incident. As an initial matter, we note that Appellants have not alleged that any of the immunity exceptions applied. Appellants argue, however, that if as Appellees contend, the football camp was not school-sanctioned, then they cannot raise the defense of immunity to Appellants claims of negligence. If, to the contrary, the camp was school-sanctioned, then Appellants argue that Appellees conduct constituted willful misconduct which would not be subject to immunity. Without elaboration, Appellees characterize as disingenuous Appellants argument that the district and its employees would somehow lose local agency status and immunity if the camp was deemed not to be school-sanctioned. 7 As Appellees note, Appellants raise for the first time in their appellate brief an argument concerning the school district s alleged negligence. They did not, however, plead any negligence Counts against the district. Accordingly, we also strike that portion of Appellants brief. 4 As a local agency, the district is immune from liability under Section 8541. As a local agency employee, Cherpak would be similarly immune as long as he was acting within the scope of his office or duties. In that regard, Section 8545 of the Judicial Code provides as follows: An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter. 42 Pa. C.S. § 8545. An employee is defined as [a]ny person who is acting or who has acted on behalf of a government unit whether on a permanent or temporary basis, whether compensated or not . . . including [any] other person designated to act for the government unit. Section 8501 of the Judicial Code, 42 Pa. C.S. § 8501. Here, Appellants pled that Coach Cherpak advised prospective football players at a school meeting that, if they wanted to play high school football, then he expected them all to attend the camp. They also alleged that Cherpak and other members of the football coaching staff attended and participated in camp activities. Appellants did not allege that Cherpak was acting outside the scope of his duties as a football coach while at the camp. In fact, it is obvious that he was acting in that capacity while at the camp. Indeed, it was Cherpak s status as head football coach that was the basis of Appellants allegations that he failed to act appropriately with regard to the hazing incident. Therefore, it is clear that Cherpak was acting on behalf of the district and within the scope of his official duties as head football coach. 5 Nor is there any merit in Appellants attempt, on appeal, to transform negligence claims into ones sounding in willful misconduct. In Counts V and VI, which Appellants labeled as negligence, they alleged that Cherpak failed to provide adequate supervision, failed to properly instruct the team about hazing, failed to enforce the school s hazing policy and failed to notify the school and law enforcement authorities about the incident. These allegations do not contain any willful components. In addition, this court has rejected litigants attempts to re-write their complaints on appeal in order to circumvent a party s immunity. In Kearney v. City of Philadelphia, 616 A.2d 72 (Pa. Cmwlth. 1992), this court addressed a plaintiff s attempt, on appeal, to recharacterize the claims in her complaint that the city had acted intentionally, recklessly and wantonly into negligence claims. This court rejected the plaintiff s attempts, commenting that the recharacterization conflicted with the express wording of the complaint and stating that the litigant may not take liberty to amend her complaint upon appeal in order to enhance her appellate position. Id. at 74. We similarly reject Appellants attempt in the present case to transform their negligence Counts into ones alleging willful misconduct. The remaining Counts solely against Coach Cherpak are the ones for intentional infliction of emotional distress. We note that such claims do not fall within the exceptions to immunity. Section 8550 of the Judicial Code, 42 Pa. C.S. § 8550; Weaver v. Franklin County, 918 A.2d 194 (Pa. Cmwlth.), appeal denied, 593 Pa. 751, 931 A.2d 660 (2007). Therefore, if Cherpak s conduct had risen to the requisite high level in order to establish that tort, he could have been held liable. As the trial court concluded, his conduct, though questionable, did not rise to that level. We rely upon the trial court s well-reasoned analysis in this regard. 6 As for James Cortese s Title IX claim against the district alleging discrimination based on sex, we also adopt the trial court s rationale. As the trial court noted, there was nothing in the voluminous deposition testimony that indicated that Cortese was the victim of student-on-student harassment based on his gender. In addition, we note that Appellants alleged that there is no evidence that the district played any role in the harassment itself or had any knowledge of it until after the fact. Moreover, the harassment was not pervasive; rather Lotis hazed Cortese one time, on the bus. While we certainly do not condone the incident or wish to minimize it, we agree with the trial court that the threshold for establishing a Title IX claim is high, and was not met here, even in the light most favorable to Appellants. With respect to the two conspiracy Counts against the district, like the tort of intentional infliction of emotional distress, civil conspiracy does not fall within an immunity exception. Weaver. In addition, we agree with the trial court s determination that Appellants failed to state of claim for civil conspiracy, and rely on the trial court s reasoning in support of that determination. For the foregoing reasons, and based upon the well-reasoned analysis of the Honorable W. Terrence O Brien in the attached December 21, 2007 opinion, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Anthony and Joni Cortese, as husband and wife and as parents and natural guardians of James Cortese, a minor, Appellants v. West Jefferson Hills School District, Adam Lotis, Matthews Bus Company, Inc., William Cherpak, T.J. Srsic, George Wilson, John Mitruski, John Yogan, Keith Pancoast, Frank Brettschneider, Robert Ando, Thomas Berrich, Patricia Smith, Randall Sydeski, Andy Palaggo and John Lozosky : : : : : : : : : : : : : : : : No. 53 C.D. 2008 ORDER AND NOW, this 9th day of December, 2008, the order of Court of Common Pleas of Allegheny County, No. GD 2004-012962, filed January 7, 2007, is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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