J-A33032-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

PHILIP DIAH-KPODO,                            :        IN THE SUPERIOR COURT OF
                                              :              PENNSYLVANIA
              Appellant                       :
                                              :
       v.                                     :
                                              :
WAWA, INC., VICKI SCHWARTZ, AND               :
HOWARD B. STOECKEL,                           :
                                              :
              Appellees                       :        No. 1100 EDA 2015

                 Appeal from the Order Entered March 17, 2015
             in the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2014-00640

BEFORE:      FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 24, 2016

       Philip Diah-Kpodo (Plaintiff) appeals from the March 17, 2015 order

that   sustained   preliminary   objections       to    Plaintiff’s   second   amended

complaint (complaint) filed on behalf of Wawa, Inc., Vicki Schwartz, and

Howard B. Stoeckel (Defendants, collectively). We affirm in part, reverse in

part, and remand for further proceedings consistent with this memorandum.

       The trial court summarized the history of the case as follows.

             On December 2, 2014, [P]laintiff filed his [] complaint. By
       that complaint, [P]laintiff alleged that he was shopping at a
       Wawa retail store on January 12, 2012 when an employee told a
       police officer at the store that [P]laintiff had previously taken
       items without paying. This caused the police officer to observe
       and follow [P]laintiff inside the store. After [P]laintiff left the
       store, the police officer forced [P]laintiff to empty his pockets
       which revealed that [P]laintiff had stolen nothing. The plaintiff
       characterized the experience as a frightening ordeal and an
       unjust indignity. Upon those allegations, [P]laintiff set forth

* Retired Senior Judge assigned to the Superior Court.
J-A33032-15


      counts seeking recovery for assault, negligent infliction of
      emotional distress and defamation, presumably from all of the
      defendants [P]laintiff named in the caption of his original
      complaint filed on January 10, 2014. Those defendants are: (1)
      Wawa, Inc.; (2) Vicki Schwartz; (3) Chris;[1] and (4) Howard B.
      Stoeckel.2 On December 22, 2014, preliminary objections in the
      nature of a demurrer were filed on behalf of all defendants of
      record.    Those defendants are: (1) Wawa, Inc.; (2) Vicki
      Schwartz; and (3) Howard B. Stoeckel.
            _____
            2
              Vicki Schwartz is a Wawa area manager who apologized
            to [P]laintiff and who offered him a gift card as
            compensation. Chris is the Wawa employee who spoke to
            the police officer. Howard B. Stoeckel used to be Wawa’s
            Chief Executive Officer.

Trial Court Opinion, 3/17/2015, at 1-2 (citations and some footnotes

omitted).

      By order of March 17, 2015, the trial court sustained Defendants’

objections and dismissed Plaintiff’s complaint with prejudice. Plaintiff timely

filed a notice of appeal.2


1
  The caption of this complaint names “Wawa Inc. et al.” as defendants, and
the body of the complaint names only Vickie Schwartz as a party defendant.
While “Chris” was named in Plaintiff’s original complaint filed on January 10,
2014, and is arguably thus included in complaint at issue as one of the “al.,”
Chris never entered an appearance in the case and there is no indication in
the record that he was served with original process. As such, Chris never
became a party to this action. Hill v. Ofalt, 85 A.3d 540, 546 n.5 (Pa.
Super. 2014) (“Milestone never became a ‘party to the action,’ as Appellant
never served Milestone with original process and Milestone never entered an
appearance in this case.”). Furthermore, the trial court’s March 17, 2015
order dismissed Plaintiff’s complaint in its entirety, rendering it a final order.
Id.   Accordingly, this Court has jurisdiction to entertain this appeal.
Pa.R.A.P. 341.
2
  The trial court did not order Plaintiff to file a concise statement of errors
complained of on appeal, and none was filed.

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J-A33032-15


      Plaintiff presents this Court with three questions, which we have

reordered for ease of disposition: (1) whether the police officer’s search was

a violation of Plaintiff’s civil rights; (2) whether the police officer’s action

constituted an infliction of emotional distress; and (3) whether the complaint

sufficiently stated a claim for defamation.     Plaintiff’s Brief at unnumbered

page 2.

      We begin with our standard of review.

      [O]ur standard of review of an order of the trial court overruling
      or granting preliminary objections is to determine whether the
      trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint. When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 305 (Pa.

Super. 2015) (internal quotation marks and citations omitted).

      We now examine Plaintiff’s issues, starting with his argument that he

suffered a civil rights violation. Plaintiff’s complaint contains no reference to

civil rights generally, nor any specific civil right alleged to have been

violated. In his brief, Plaintiff states that his civil rights were violated “when

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J-A33032-15


he was illegally searched” by the police officer.           Plaintiff’s Brief at

unnumbered page 2. Hence, we assume he is arguing about a violation of

his Fourth Amendment rights.

      The Fourth Amendment is applicable to the states through the

Fourteenth Amendment. Commonwealth v. Kohl, 615 A.2d 308, 311 (Pa.

1992).   “[T]he Fourteenth Amendment of the Constitution of the United

States applies only to ‘state action’ and not to private conduct.” 3 Adler v.

Montefiore Hosp. Ass’n of W. Pennsylvania, 311 A.2d 634, 639 (Pa.

1973). Plaintiff did not name as defendants the officer who searched him or

the governmental body on whose authority the officer acted. The complaint

contains no allegations to impute state action to any of the private

defendants Plaintiff did sue. Hence, Plaintiff’s first question merits no relief

from this Court.

      Count II of Plaintiff’s complaint alleged that Defendants are liable for

negligent infliction of emotional distress.   Such a claim can be maintained

only if one of the following applies:

      (1) [] the defendant had a contractual or fiduciary duty toward
      the plaintiff; (2) the plaintiff was subjected to a physical impact;
      (3) the plaintiff was in a zone of danger, thereby reasonably
      experiencing a fear of impending physical injury; or (4) the
      plaintiff observed a tortious injury to a close relative.



3
  “Similarly, the search and seizure provisions of Article 1, section 8 [of the
Pennsylvania Constitution], have been held inapplicable to the conduct of
private parties.” W. Pennsylvania Socialist Workers 1982 Campaign v.
Connecticut Gen. Life Ins. Co., 485 A.2d 1, 5-6 (Pa. Super. 1984).
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J-A33032-15


Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 217 (Pa. Super. 2012).

      Nothing in the complaint suggests that any of Defendants had a

contractual or fiduciary duty toward Plaintiff; that Plaintiff was subjected to a

physical impact; or that he observed an injury to anyone else.         The only

category into which Plaintiff’s allegations arguably fits is the zone-of-danger

rule. However, that rule “affords a cause of action for negligent infliction of

emotional distress ‘where the plaintiff was in personal danger of physical

impact because of the direction of a negligent force against him and where

plaintiff actually did fear the physical impact.’” Schmidt v. Boardman Co.,

608 Pa. 327, 367, 11 A.3d 924, 948 (Pa. 2011) (quoting Niederman v.

Brodsky, 261 A.2d 84, 90 (Pa. 1970)).

      While Plaintiff stated that he feared an assault from the officer, and

the officer put “Plaintiff in an unnecessary apprehension of imminent

danger,” Second Amended Complaint, 12/2/2014, at 5, he nowhere alleged

that the officer somehow was a negligent force directed against him by any

of Defendants, or that he actually faced physical impact from the officer.

Accordingly, Plaintiff’s second issue warrants no relief.

      With his last issue, Plaintiff claims that he sufficiently alleged a claim

for defamation.    The requirements of a defamation claim are codified as

follows:

      (a) Burden of plaintiff.--In an action for defamation, the
      plaintiff has the burden of proving, when the issue is properly
      raised:

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J-A33032-15



           (1) The defamatory character of the communication.

           (2) Its publication by the defendant.

           (3) Its application to the plaintiff.
           (4) The understanding by the recipient of its defamatory
           meaning.

           (5) The understanding by the recipient of it as intended to
           be applied to the plaintiff.

           (6) Special harm resulting to the plaintiff from its
           publication.

           (7) Abuse of a conditionally privileged occasion.

     (b) Burden of defendant.--In an action for defamation, the
     defendant has the burden of proving, when the issue is properly
     raised:

           (1) The truth of the defamatory communication.

           (2) The privileged character of the occasion on which it
           was published.

           (3) The character of the subject matter of defamatory
           comment as of public concern.

42 Pa.C.S. § 8343.

     “Whether a communication can be construed to have a defamatory

meaning is a question of law for the court to determine.”      Cashdollar v.

Mercy Hosp. of Pittsburgh, 595 A.2d 70, 75 (Pa. Super. 1991). However,

“[i]f the court has any doubt that the communication is defamatory, then the

issue must be given to the jury for them to determine whether the

defamatory meaning was understood by the recipient.”             Gordon v.



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J-A33032-15


Lancaster Osteopathic Hosp. Ass’n, Inc., 489 A.2d 1364, 1368 (Pa.

Super. 1985).

     “A communication is defamatory if it tends so to harm the reputation

of another as to lower him in the estimation of the community or to deter

third persons from associating or dealing with him.” Restatement (Second)

of Torts § 559. The Restatement (Second) of Torts further provides that a

statement “that imputes to another conduct constituting a criminal offense”

constitutes defamation per se “if the offense imputed is of a type which, if

committed in the place of publication, would be (a) punishable by

imprisonment in a state or federal institution, or (b) regarded by public

opinion as involving moral turpitude.” Id. at § 571.

     The trial court determined that Chris’s statement was not capable of

defamatory meaning based upon the following:

            Here, the utterance at issue is the one by Chris to the
     police officer to “keep an eye on [Plaintiff because previously,
     Plaintiff] took items from the aforesaid store that he did not pay
     for.” The fair implication of this statement is that [P]laintiff is a
     known shoplifter. It is apparent that the police officer took that
     as the statement’s meaning which explains why he observed,
     followed and confronted [P]laintiff. However, reporting to a
     police officer that a person is a known shoplifter in the context
     pled is not a statement capable of defamatory meaning. Wawa
     retail stores are convenience stores that display for sale to the
     general public low[-]priced items such as snack foods, candy,
     soft     drinks,   non-perishable    groceries     and    toiletries.
     Considerations of harm to reputation and dissuading a police
     officer from associating or dealing with a person reported to be a
     petty shoplifter are nonexistent. A first offense for shoplifting an
     item of value less than $150.00 is not even a misdemeanor, but
     is rather a summary offense.         Moreover, an accusation of

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J-A33032-15


      shoplifting is not an accusation of a crime that rises to the level
      of defamation per se.

Trial Court Opinion, 3/17/2015, at 4-5 (citations omitted). There are several

errors in this analysis.

      First, in relying upon its understanding of the types of items for sale at

Wawa and speculating about the value of property a person could steal

therefrom, the trial court sustained preliminary objections in the nature of a

demurrer based upon facts outside of the complaint. This is not permissible.

See, e.g., Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354 (Pa.

Super. 2015) (“Preliminary objections in the nature of a demurrer require

the court to resolve the issues solely on the basis of the pleadings; no

testimony or other evidence outside of the complaint may be considered to

dispose of the legal issues presented by the demurrer.”).

      Second, the trial court, after citing Section 571 of the Restatement,

relied upon cases from 1866 and 1940 that noted a requirement that the

crime accused be an “indictable” offense. Trial Court Opinion, 3/17/2015, at

5. However, Comment d. to Section 571 rejects this assertion:

      Crime need not be indictable. To fall within the rule stated in
      this Section, the crime charged need not be of a type that is
      subject to indictment. The older cases distinguished between
      major offenses, likely to do serious harm to reputation if
      charged, and minor offenses not likely to do serious harm, solely
      on the basis of the possibility of indictment. Modern changes in
      criminal procedure, with the substitution of the information or
      other methods of initiating prosecution, have made this an
      unreliable criterion. … If the crime charged falls within either



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J-A33032-15


      Clause (a) or Clause (b), the defamation is actionable per se
      even though there could be no indictment.

Restatement (Second) of Torts § 571.

      Third, in Pennsylvania, the jurisdiction in which the defamatory

statement was published, retail theft, even when graded as a summary

offense, is a crime punishable by imprisonment.              See 18 Pa.C.S.

§3929(b)(1) (providing gradings for retail theft ranging from summary

offense to third-degree felony); 18 Pa.C.S. § 1105 (“A person who has been

convicted of a summary offense may be sentenced to imprisonment for a

term which shall be fixed by the court at not more than 90 days.”).

      As such, Plaintiff has alleged publication of a statement that not only is

capable of defamatory meaning, but is defamatory per se. Accord Ely v.

Nat'l Super Markets, Inc., 500 N.E.2d 120, 128 (Ill. App. 1986) (“[W]e do

not find the imputation of shoplifting at a supermarket too meaningless to be

held actionable per se.”); Hall v. Heavey, 481 A.2d 294, 298 (N.J. Super.

1984) (“For the purposes of the law of defamation, distinctions between the

terms larceny, theft and shoplifting, whether crimes or lesser offenses, are

not significant in our opinion. … For the law of defamation it should make

little difference if a person’s reputation is ruined by an unwarranted charge

of theft of goods worth more or less than $200 or of taking merchandise

from a store without paying for it. Clearly the accusation of theft involves a

criminal offense of moral turpitude.”).



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      Giving Plaintiff the benefit of all reasonable inferences of facts alleged

in his complaint as we must at this stage, Plaintiff has alleged that Chris’ per

se defamatory statements were made during his employment with Wawa

and in furtherance of Wawa’s interests.        Thus, the complaint states a

defamation case of action against Wawa sufficient to survive preliminary

objections.   See, e.g., Estate of Denmark, 117 A.3d at 306 (noting

employer may be vicariously liable for tort of employee when acts are

committed during the course and within the scope of employment).

Accordingly, we reverse the trial court’s order to the extent that it sustained

the preliminary objections to Plaintiff’s defamation count as to Wawa.

However, the complaint contains no allegations to support imposition of

liability for the defamation upon Vicki Schwartz or Howard B. Stoeckel

personally. Therefore, we affirm that portion of the order that sustained the

preliminary objections as to Ms. Schwartz and Mr. Stoeckel.

      In summary, we affirm the order sustaining Defendants’ preliminary

objections and dismissing Plaintiff’s complaint in all respects excepting

Plaintiff’s defamation claim against defendant Wawa.        We reverse those

portions of the trial court’s March 17, 2015 order that sustained Wawa’s

preliminary objections to Plaintiff’s defamation claim and that dismissed

Plaintiff’s defamation count as to Wawa.




                                     - 10 -
J-A33032-15


      Order affirmed in part and reversed in part.          Case remanded for

further   proceedings   consistent   with     this   memorandum.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/24/2016




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