J-A17009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TIMOTHY JOHNSON                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MONRO MUFFLER BRAKE, INC., AND             :   No. 1794 WDA 2017
    BRIAN RADIGAN                              :

               Appeal from the Order Entered November 15, 2017
                 In the Court of Common Pleas of Erie County
                  Civil Division at No(s): No. 12059 of 2016


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 11, 2018

        Timothy Johnson appeals from the Order entered in the Court of

Common Pleas of Erie County, on November 15, 2017, granting summary

judgment in favor of Monro Muffler Brake, Inc. (Monro) and Brian Radigan and

dismissing Johnson’s claims with prejudice.1 In this timely appeal, Johnson

raises two issues. First, he claims the trial court erred in holding claims of

fraud and identity theft required pleading pecuniary damages. Second, he

claims the trial court erred in holding exemplary (“punitive”) damages were

unavailable without pleading and proving pecuniary damages.             After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm in part, reverse in part, and remand for further

proceedings.
____________________________________________


1   The order also dismissed Defendants’ New Matter and cross-claims.
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        Johnson was an employee of Monro,2 from June 15, 2014 to July 1,

2015.    See Second Amended Complaint, ¶ 4. Johnson is licensed by the

Commonwealth of Pennsylvania to perform annual motor vehicle inspections

and did so for employer, Monro. Id. After quitting his job at Monro, Johnson

became a licensed motor vehicle mechanic for Rick Weaver & Sons.

Subsequent to Johnson leaving Monro’s employment, Brian Radigan remained

as an employee.       Id., at ¶ 7.     Radigan’s license to perform motor vehicle

inspections had expired; nevertheless, Radigan performed approximately 23

inspections using Johnson’s license number and forging Johnson’s signature

on the official paperwork. Id.; Monro Motion for Summary Judgment, Exhibit

B.

        A Pennsylvania Emission Team Quality Assurance Officer (QAO)

discovered the fraudulent use of Johnson’s name and license number through

a routine inspection on August 11, 2015.            Monro Motion for Summary

Judgment, Exhibit B.        Johnson claimed that based on this discovery, the

Pennsylvania State Police approached him at his new place of employment

and accused him of participating in the fraud, and threatened to arrest him.

Id. at Exhibit E.3     Johnson claimed this encounter occurred in front of co-

____________________________________________


2 Pursuant to Monro’s, August 3, 2017, Motion for Summary Judgment, Exhibit
B, Pennsylvania Department of Transportation’s Response to Johnson’s
Subpoena to Produce Documents, the Monro Muffler shop in question was
located at 4048 Buffalo Road, Erie, Pennsylvania 16510.

3Exhibit E is Johnson’s Pre-Trial Narrative Statement, filed July 21, 2017. It
does not appear that Johnson was ever deposed.

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workers and management, id., and caused him to suffer “embarrassment,

humiliation,   and   mental   anguish,     and   interference   with   business

relationships.” Second Amended Complaint, at ¶¶ 18, 19.

      Subsequently, Johnson filed a complaint against Monro and Radigan,

asserting claims, sounding in negligence, fraud, identity theft and respondeat

superior. Responding to preliminary objections, Johnson eventually filed a

second amended complaint with counts of fraud and identity theft directed

against Radigan and respondeat superior against Monro.           After relevant

discovery ended, Monro filed a motion for summary judgment claiming

Johnson had not suffered any compensable damages for any of his claims.

Radigan joined in the motion and the trial court agreed. Johnson filed this

appeal, raising the issues cited above in his Pa.R.A.P. 1925(b) statement.

      Our standard of review for the grant of 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.

      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 nonmoving 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
      nonmoving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof...
      establishes the entitlement of the moving party to judgment as a


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        matter of law. Lastly, we will review 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.

Vinson v. Fitness & Sports Clubs, LLC, 187 A.3d 253, 257 (Pa. Super.

2018) (citations omitted).

        Initially, we note that Johnson has not challenged the dismissal of his

claim of respondeat superior, Count III, against Monro.           Therefore, the

dismissal of that claim will not be addressed. Further, although Johnson lists

the fraud claim in his Statement of Questions Involved,4 his brief substantively

addresses only the claim of identity theft. Accordingly, we find any challenge

to the dismissal of Count I, regarding fraud against Radigan has been waived.

See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (“[W]here

an appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived”) (citation omitted). Accordingly, the

remaining issues before this Court involve the claim of identity theft, Count

II, against Radigan and the availability of punitive damages attendant thereto.

        The initial question before this Court is whether Johnson’s claim that he

suffered “embarrassment, humiliation, mental anguish and interference with

business relationships” is compensable under 42 Pa.C.S. § 8315, which states:

        In a civil action based on identity theft as defined in 18 Pa.C.S. §
        4120 (relating to identity theft), a court of competent jurisdiction
        may award damages as follows:

____________________________________________


4   Appellant’s Brief, at 4.

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          (1) Actual damages arising from the incident or $500,
          whichever is greater. Damages include loss of money,
          reputation or property, whether real or personal. The court
          may, in its discretion, award up to three times the actual
          damages sustained, but not less than $500.

          (2) Reasonable attorney fees and court costs.

          (3) Additional relief the court deems necessary and proper.

42 Pa.C.S. § 8315.

      The trial court based its decision on two grounds. Initially, the trial court

determined that identity theft was a form of fraud, and common law fraud

requires proof of actual pecuniary loss, which is absent herein. While the trial

court is correct that identity theft is a form of fraud, the court erred in applying

the requirements for a claim of common law fraud in place of the statutory

requirements necessary to make out a claim of damages for identity theft.

Accordingly, we reject this reasoning.

      Secondly, the trial court determined the specific language of Section

8315 made summary judgment appropriate. The statute allows a party to

claim “actual damages.” This phrase is not defined in the statute. In Bailets

v. Pennsylvania Turnpike Commission, 181 A.3d 324 (Pa. 2018), our

Supreme Court recently discussed the meaning of “actual damages” regarding

the Whistleblower Statute, 43 P.S. § 1425. There, “actual damages” included

the ability to recover for non-economic losses such as humiliation,

embarrassment, loss of reputation and mental anguish. This favors Johnson’s

position that he has stated a proper claim for damages.




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       However, the statute at issue, Section 8315(1), includes not only an

allowance to claim actual damages, but a short list of compensable damages.

That list is comprised of “loss of money, reputation or property, real or

personal.” The list does not contain any other clarifying qualifier, found in

some statutes, such as “shall be limited to…”5 or “including but not limited

to…”6 The General Assembly clearly knows how to use qualifiers, but did not

do so here.      The inclusion of damage to reputation in Section 8315(1)

demonstrates the General Assembly allows for claims of non-economic

damages under the statute. This is logical, as identity theft can harm not only

one’s finances, but also one’s good name.

       The question remains whether Johnson’s allegations of suffering

embarrassment, mental anguish, humiliation and interference with business

relationships fall under the rubric of loss of reputation. Mindful that we are

required to review the evidence of record in the light most favorable to

Johnson as the aggrieved party, we conclude it does.

       The evidence found in the certified record shows Johnson’s claim arises

from not simply the use of his name and certified mechanic license number,

but also from the resulting criminal investigation. See Motion for Summary

Judgment, Exhibit E, supra. The State Police arrived at Rick Weaver & Sons,

____________________________________________


5See Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002), interpreting 42
Pa.C.S. § 9711(e)(8).

6 See Darby v. Darby, 686 A.2d 1346 (Pa. Super. 1996), interpreting 23
Pa.C.S. § 4302.

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shortly after Johnson began his employment there, and questioned him

regarding the false use of his name and mechanic’s license at Monro. Johnson

claims this scenario produced his sense of humiliation, embarrassment,

mental anguish, etc.     Although not specifically stated by Johnson, these

allegations also fairly encompass a challenge to Johnson’s reputation as a

licensed mechanic. If the authorities arrive at one’s place of employment and

raise questions regarding fraudulent work-related activities, surely such an

event encompasses a challenge to one’s professional reputation.         Although

Johnson did not use the word “reputation” in his second amended complaint,

the evidence adduced is sufficient, at this point in the proceedings, to implicate

Johnson’s reputation.

      The rules of statutory construction also support this interpretation: 1

Pa.C.S. § 1928(b) provides a list of classes of statutes that are meant to be

strictly construed. While penal provisions are on the list of strictly construed

statues, 42 Pa.C.S. § 8315, which references the crime of identity theft, it is

not itself a penal provision. Pursuant to Section 1925(c), “All other provisions

[not on the list found at Section 1928 (b)] shall be liberally construed to effect

their objects and to promote justice.” 1 Pa.C.S. § 1928(c).

      Unfortunately, Section 8315 provides no statement of intent. However,

it seems clear that a civil action regarding theft of identity is meant to help

redress attacks on a person’s name. The evidence in this matter, as found in

the pleadings and exhibits, demonstrates that Johnson’s reputation was

attacked and he claims to have suffered traditional actual damages therefrom.

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While reputation and mental anguish, etc., are not identical claims, in this

matter, from the record as it appears at this time, they are sufficiently related

to defeat summary judgment.

       Johnson’s claims for punitive damages were dismissed based on the

determination he had failed to set forth an actionable claim. Because that

determination is, at this time, incorrect, regarding the count of identity theft

against Radigan, the claim of punitive damages related to that count is also

revived.

       Because Johnson has not argued against the dismissal of Count I,

regarding fraud, or Count III, regarding respondeat superior against Monro,7

the trial court’s grant of summary judgment regarding those claims is

affirmed. However, the grant of summary judgment in favor of defendant

Radigan regarding Count II, identity theft, is reversed.

       Order reversed in part as to summary judgment in favor of Radigan,

regarding Count II, Identity Theft.            Order affirmed in part as to summary

judgment in favor of Radigan regarding Count I, Fraud, and in favor of Monro,

regarding Count III, Respondeat Superior. This matter is remanded to the

trial court for further proceedings. Jurisdiction relinquished.
____________________________________________


7 It may seems logical that a revival of a claim against Radigan would revive
the claim of respondeat superior against Monro. Certainly, the claim against
Monro could not be revived without an attendant claim against Radigan.
However, regarding the identity theft claim against Radigan, we are obliged
to interpret Section 8315 liberally to promote justice and to achieve the effect
of the statute. We take no position as to whether this includes the revival of
a separate claim against a defendant that has not been specifically addressed
by the Appellant.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2018




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