J-A20037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ABIMBOLA SODEKE, A/K/A SARAH                   IN THE SUPERIOR COURT OF
SODEKE, A MINOR AND ADEBISI                          PENNSYLVANIA
ADEYEMI

                         Appellants

                    v.

EMMANUEL OPAWUMI, STAFFMORE, LLC,
EDWARD PARNES, INDIVIDUALLY AND
TRADING AS AND PHILADELPHIA
MENTAL HEALTH CENTER

                         Appellees                   No. 3535 EDA 2014


           Appeal from the Judgment Entered on November 19, 2014
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No.: May Term, 2011 No. 2366


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                      FILED SEPTEMBER 09, 2015

      Abimbola Sodeke, a/k/a Sarah Sodeke, and her mother, Adebisi

Adeyemi, (collectively “Appellants”) appeal the trial court’s November 19,

2014 order.      Appellants challenge the trial court’s entry of summary

judgment in favor of Edward Parnes, individually and trading as Philadelphia

Mental Health Center (“PMHC”) and Staffmore, LLC (“Staffmore”).          We

affirm.

      In    December     2007,   PMHC   arranged   for   Emmanuel   Opawumi

(“Opawumi”), a therapeutic staff support worker (“TSS worker”), to provide

home healthcare services to Sodeke’s younger brother. In order to obtain

his position as a TSS worker, Opawumi was vetted by Staffmore. PMHC had
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previously contracted Staffmore to recruit qualified TSS candidates and

submit them to PMHC for approval. Pursuant to that agreement, Staffmore

was responsible for conducting all legally required background and clearance

checks on each candidate.

      On May 20, 2011, Appellants instituted this action against Opawumi.

Appellants alleged that, on February 13, 2008, Opawumi deliberately

assaulted Sodeke, a nine-year-old child, while he was in Appellants’ home

caring for Sodeke’s brother.   On October 4, 2011, Appellants filed a third

amended complaint, which named the following parties as defendants:

Opawumi, PMHC, Elwyn Institute, Progressions Companies Inc., and Staffing

Plus Inc. With regard to the latter four defendants, Appellants alleged that

each of those entities had negligently hired, retained, and/or supervised

Opawumi. See Appellants’ Third Amended Complaint, 10/4/2011, at 1-2, 6-

15.

      Opawumi failed to file a responsive pleading to Appellants’ complaint.

On October 21, 2011, the trial court entered a default judgment against

Opawumi. The parties stipulated to the dismissal of Progressions Companies

Inc., Elwyn Institute, and Staffing Plus Inc. as defendants on June 15, 2012,

August 23, 2012, and September 14, 2012, respectively.        The trial court

approved each of those stipulations.      On August 13, 2012, the parties

stipulated to the joinder of Staffmore as an additional defendant, which the

trial court approved on September 4, 2012. On October 2, 2012, PMHC filed




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a joinder complaint against Staffmore asserting claims for negligence and

indemnification.

      On April 1, 2013, following the completion of discovery, PMHC filed a

motion for summary judgment.      Therein, PMHC contended that Appellants

had failed to adduce any evidence demonstrating that PMHC had breached a

legal duty that it owed to Appellants. On April 23, 2013, Staffmore joined

PMHC’s motion for summary judgment.       On May 30, 2013, the trial court

entered summary judgment in favor of PMHC and Staffmore.

      On June 25, 2013, Appellants filed a notice of appeal. On February 25,

2014, we quashed Appellants’ appeal as interlocutory.       See Sodeke v.

Opawumi, 2232 EDA 2013 (Pa. Super. Feb. 25, 2014) (unpublished

memorandum).       Specifically, we held that the trial court’s May 30, 2013

order was not an appealable final order because Opawumi remained a party

to the litigation following the trial court’s entry of summary judgment, and

the issue of damages had not yet been resolved. Id. slip. op. at 3.

      On October 9, 2014, the trial court held an assessment of damages

hearing. On November 19, 2014, the trial court found Appellants’ damages

to be $950,000.00 and entered judgment against Opawumi in that amount.

Appellants timely filed a notice of appeal of the November 19, 2014

judgment. On December 8, 2014, the trial court ordered Appellants to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellants timely complied. On February 2, 2015, the trial court

filed its Rule 1925(a) opinion.

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       Appellants present four issues for our consideration:

       1. Did the [trial] court err in entering summary judgment
          against [PMHC] and [Staffmore] on May 30, 2013?

       2. Did the [trial] court err in entering summary judgment, as
          [PMHC] and [Staffmore] were under a duty to investigate
          persons providing services to vulnerable minors, the extent of
          which should have been decided by a finder of fact?

       3. Was the issue of [] Opawumi’s status as an employee or an
          independent contractor a[n] issue that should have been
          submitted to the trier of fact?

       4. Did the [trial] court err in in granting summary judgment in
          favor of [PMHC and Staffmore] when the motion for summary
          judgment was based on testimonial evidence and documents
          in violation of the Nanty-Glo[1] holding?

Brief for Appellants at 2.2

       Our standard of review of a trial court’s order granting summary

judgment is well settled:

       A reviewing court may disturb the order of the trial court only
       where it is established that the court committed an error of law
       or abused its discretion. As with all questions of law, our review
       is plenary.

____________________________________________


1
     See Borough of Nanty-Glo v. Am. Sur. Co. of N.Y., 163 A. 523 (Pa.
1932).
2
      Although Appellants identify four distinct questions for our review, they
do not correspondingly divide the argument section of their brief into four
separate sections.    Our Rules of Appellate Procedure require that the
argument section be “divided into as many parts as there are questions to
be argued.” Pa.R.A.P. 2119(a). Nonetheless, we will exercise our discretion
to overlook this procedural error because it does not impede substantially
our review of the merits of this appeal. See Pa.R.A.P. 105(a), 2101.



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      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

      Appellants’ third amended complaint alleged that PMHC was negligent

in the recruitment, hiring, and supervision of Opawumi, and in continuing to

recommend and partner with entities that engaged in similarly negligent

employment practices. It is axiomatic that the mere occurrence of an injury,

standing alone, is insufficient to establish a cognizable claim for negligence.

McDonald v. Aliquippa Hosp., 606 A.2d 1218, 1220 (Pa. Super. 1992). A

plaintiff must demonstrate the presence of a legal duty or obligation; a

breach of that duty; a causal link between that breach and the injury

alleged; and actual damage or loss suffered by the claimant as a

consequence of thereof.    Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d

1281, 1286 (Pa. Super. 2005).



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      Generally, the law imposes no duty to control the conduct of a third

party to protect others from harm. See Emerich v. Phila. Ctr. for Human

Dev., Inc., 720 A.2d 1032, 1036 (Pa. 1998).           Nevertheless, an exception

exists where the defendant stands in a special relationship with the person

whose conduct needs to be controlled, or where the defendant stands in a

special relationship with the victim of that conduct. Id.

      These well established principles are explained in the Restatement

(Second) of Torts.       Sections 316-319 of the Restatement detail the

situations in which a third party has an affirmative duty to control the

conduct of a tortfeasor. Section 317 is germane to the case sub judice.

      A master is under a duty to exercise reasonable care so as to
      control his servant while acting outside the scope of his
      employment as to prevent him from intentionally harming others
      or from so conducting himself as to create an unreasonable risk
      of bodily harm to them, if

      (a)   the servant

         (i) is upon the premises in possession of the master or
             upon which the servant is privileged to enter only as
             his servant, or

         (ii) is using a chattel of the master, and

      (b)   the master

         (i) knows or has reason to know that he has the ability to
             control his servant, and

         (ii) knows or should know of the necessity and opportunity
              for exercising that control.




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Restatement (Second) of Torts § 317 (1965).3 The Pennsylvania Supreme

Court has adopted the above approach. See Dempsey v. Walso Bureau,

Inc., 246 A.2d 418, 422 (Pa. 1968) (“To fasten liability upon an employer

under Section 317, it must be shown that the employer knew or, in the

exercise of ordinary care, should have known of the necessity for exercising

control of his employee.”); Hutchison v. Luddy, 742 A.2d 1052 (Pa. 1999).

       We need not discuss at length whether PMHC and Staffmore knew or

should have known of the necessity and opportunity to exercise reasonable

care in selecting, supervising, and controlling TSS workers. Where, as is the

case here, an employer enlists medical professionals to provide home-based

healthcare services to minor children, the need to exercise reasonable care

to prevent an unreasonable risk of bodily harm is self-evident. Indeed, the

General Assembly has imposed upon such employers numerous statutory

duties in these circumstances.         See, e.g., 23 Pa.C.S. § 6344 (mandating

that employers conduct background checks on prospective employees who

will work with children and reject applicants who have been convicted of

certain crimes).




____________________________________________


3
      As discussed infra, we decline to take up the lingering issue of whether
Opawumi was Staffmore’s employee. Appellants’ theories of liability fail
irrespective of whether Opawumi was an employee or an independent
contractor. Therefore, we accept, arguendo, Appellants’ contention that
Opawumi was an employee of Staffmore. See Brief for Appellants at 6-7.



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      Having concluded that PMHC and Staffmore owed Appellants a duty to

exercise reasonable care in selecting, supervising, and controlling TSS

workers, the question then becomes whether a genuine dispute of fact exists

as to whether they breached that duty. The trial court, finding that no such

dispute existed, noted the following undisputed facts of record:

      Staffmore obtained valid [c]hild [a]buse, [c]riminal [h]istory[,]
      and FBI clearances on Opawumi.            Staffmore interviewed
      Opawumi, checked his refrences, and verified all [of] his
      educational and state-mandated training certificates. There is
      no dispute that [Staffmore] conducted the investigations
      required by both the law and its contract with PMHC. There is no
      dispute that Staffmore’s background check unearthed no
      problems or irregularities in Opawumi’s personal or professional
      history.

      [Appellants] both testified that prior to the February 13, 2008
      incident they had no problems with Opawumi[,] and there is no
      evidence that they or anyone else had ever lodged a complaint
      with [PMHC or Staffmore.] The evidence that a supervisor came
      to the [Appellants’] house and observed Opawumi is
      uncontradicted.

Trial Court Opinion (“T.C.O.”), 10/2/2013, at 2-3 (citations to the certified

record omitted).

      Our careful review of the record convinces us that the trial court did

not err in refusing to allow a jury to decide Appellants’ negligence claim.

Appellants have simply failed to adduce any evidence that could lead a jury

reasonably to conclude that PMHC and/or Staffmore failed to act with

reasonable care in hiring or supervising Opawumi. There is nothing in the

record to suggest that PMHC or Staffmore breached a statutory, regulatory,

or contractual duty to screen prospective employees.       Appellants do not

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allege or in any way substantiate any specific inadequacies in Staffmore’s

investigation or in PMHC’s supervision of Opawumi.         Appellants have not

identified a single negative aspect of Opawumi’s character or professional

competence that would have been uncovered by even the most exhaustive

investigation and supervision.

      Appellants contend that, “[i]n addition to the screening of TSS

[workers,] there should have been policies and procedures in place to

protect the vulnerable class of developmentally disabled minors.” Brief for

Appellants at 10.   Appellants have offered no expert evidence to establish

that PMHC had a heightened duty under the circumstances. Moreover, the

record is devoid of any evidence of Opawumi’s potential for abuse that PMHC

might have uncovered by exercising even the utmost diligence. Based upon

the factual inadequacies of the record in this case, there is simply no theory

of liability, short of strict liability, that could preclude summary judgment.

Thus, the trial court did not err in concluding that PMHC and Staffmore were

entitled to judgment as a matter of law.       See Murray, 63 A.3d at 1261

(“Failure of a non-moving party to adduce sufficient evidence on an issue

essential to his case and on which it bears the burden of proof establishes

the entitlement of the moving party to judgment as a matter of law.”).

      In their third issue, Appellants argue that “there is sufficient indicia of

proof to enable a trier of fact to conclude that [Opawumi] was . . . an

employee of Staffmore, thus making the doctrine of respondeat superior

applicable to this case.”   Brief for Appellants at 7-8.   Appellants evidently

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maintain that Staffmore is vicariously liable for Opawumi’s intentional

assault. This argument is flawed in multiple respects.

      Appellants’ third amended complaint asserts only that PMHC was

directly liable for its negligent hiring, retention, and supervision of Opawumi.

On appeal, however, Appellants puzzlingly argue that the trial court erred in

entering summary judgment despite the existence of factual issues

concerning Staffmore’s vicarious liability for Opawumi’s assault. We fail to

grasp, and Appellants fail to explain, how this issue is relevant to the

allegations Appellants pleaded in their complaint.

      Moreover, even if Appellants had advanced a theory of vicarious

liability in their complaint and Opawumi was a Staffmore employee (rather

than an independent contractor), Appellants’ claim would still be meritless as

a matter of law.

      It is well settled that an employer is held vicariously liable for
      the negligent acts of his employee which cause injuries to a third
      party, provided that such acts were committed during the course
      of and within the scope of the employment. Fitzgerald v.
      McCutcheon, 410 A.2d 1270, 1271 (Pa. Super. 1979). In
      certain circumstances, liability of the employer may also extend
      to intentional or criminal acts committed by the employee. Id.
      The conduct of an employee is considered “within the scope of
      employment” for purposes of vicarious liability if: (1) it is of a
      kind and nature that the employee is employed to perform; (2) it
      occurs substantially within the authorized time and space limits;
      (3) it is actuated, at least in part, by a purpose to serve the
      employer; and (4) if force is intentionally used by the employee
      against another, the use of force is not unexpected by the
      employer.

N.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa. Super. 2000).


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      In applying these principles, we consistently have held that employers

are not vicariously liable for the intentional criminal acts of their employees

in situations where such acts are unexpected and unrelated to the nature of

the employment. “[A]n assault committed by an employee upon another for

personal reasons or in an outrageous manner is not actuated by an intent to

perform the business of the employer and, as such, is not within the scope

of employment.”     Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa.

Super. 1979); see Potter Title & Trust Co. v. Knox, 113 A.2d 549, 551

(Pa. 1955) (holding that acts committed by employee in an “outrageous or

whimsical” manner are not within the scope of employment); N.A., 748 A.2d

at 700 (holding that church was not vicariously liable for minister’s sexual

abuse where assault was “both intentional and completely unexpected”);

Costa v. Roxborough Mem. Hosp., 708 A.2d 490, 493 (Pa. Super. 1998)

(affirming trial court’s grant of summary judgment where employee’s

intentional   assault   was   completely   unrelated   to   the   nature   of   her

employment and in no way actuated by a purpose of serving employer).

The question of whether Opawumi was a Staffmore employee, or whether he

was merely an independent contractor, is immaterial to our review of the

trial court’s grant of summary judgment.

      We now turn to Appellants’ final issue.     Here, Appellants argue that

PMHC’s motion for summary judgment was based upon oral testimony

contained within various deposition transcripts in violation of the Nanty-Glo




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rule. See Borough of Nanty-Glo v. Am. Sur. Co. of N.Y., 163 A. 523 (Pa.

1932). We disagree.

     Nanty-Glo instructs that “the party moving for summary judgment

may not rely solely upon its own testimonial affidavits or depositions, or

those of its witnesses, to establish the non-existence of genuine issues of

material fact.” Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super. 1992).

     However clear and indisputable may be the proof when it
     depends on oral testimony, it is nevertheless the province of the
     [fact-finder] to decide, under instructions from the court, as to
     the law applicable to the facts, and subject to the salutary power
     of the court to award a new trial if [it] should deem the verdict
     contrary to the weight of the evidence.

Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 902-03 (Pa. 1989).

If, however, the moving party supports its motion for summary judgment

with admissions by the opposing party, Nanty-Glo does not preclude entry

of summary judgment.       See InfoSAGE, Inc. v. Mellon Ventures, L.P.,

896 A.2d 616, 631 (Pa. Super. 2006).

     Instantly,   PMHC’s    motion   for   summary   judgment   cited   ample

documentary evidence as well as Appellants’ own admissions.      Nanty-Glo

does not preclude summary judgment based upon these forms of evidence.

InfoSAGE, 896 A.2d at 631; Dudley, 606 A.2d at 918. Appellants admitted

that they had no issues with Opawumi’s behavior or job performance prior to

the incident in question.     Sodeke also acknowledged that Opawumi’s

supervisor sometimes accompanied him to Appellants’ home.          Moreover,

PHMC reproduced numerous documents from Opawumi’s personnel file,

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including    diplomas   and   certificates,   child   abuse   clearances,   criminal

background clearances, an FBI background check, professional reference

checks, and other supporting documentation to establish the rigor of

Staffmore’s vetting process and the absence of any red flags.           Appellants’

contention that PMHC’s motion for summary judgment exclusively relied

upon oral testimony in violation of the Nanty-Glo rule is without merit.

      For the foregoing reasons, the trial court neither erred as a matter of

law nor abused its discretion in entering judgment in favor of PMHC and

Staffmore.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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