J-S23039-14

                                  2014 PA Super 162



IGOR SPITSIN                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

WGM TRANSPORTATION, INC. AND
JAMES JOHNSON, III

                            Appellee                  No. 2792 EDA 2013


               Appeal from the Order entered on October 2, 2013
                In the Court of Common Pleas of Monroe County
                       Civil Division at No.: 5544-CV-2013


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J.

OPINION BY WECHT, J.:                                    FILED JULY 29, 2014

       Igor Spitsin



complaint.1 We affirm.

       Our standard of review of an order sustaining preliminary objections is

as follows:

       [The appellate court must] 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
____________________________________________


1

Johnson, III, and Johnson has not participated in this appeal.
J-S23039-14


      are admitted as true, as well as all inferences reasonably
      deducible therefrom.     Preliminary objections [that] 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.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (quoting

Johnson v. Amer. Std., 8 A.3d 318, 329 (Pa. 2010)).

      The facts as alleged by Spitsin in his complaint are as follows:       On

August 16, 2011, Johnson was employed as a taxi driver for WGM. Johnson

picked up Spitsin on that date, and eventually brought Spitsin to the Wawa

convenience   store   on    West   Main   Street,   Stroudsburg,   Pennsylvania,

ostensibly so that Spitsin could withdraw funds from an ATM to pay his cab



prevented from doing so by individuals inside the store. When Spitsin left

the store the way he had entered, Johnson stopped him, seeking the fare.

Spitsin attempted to flee, but was tackled and restrained by a bystander a

short distance away.       While Spitsin was restrained, Johnson repeatedly

kicked and punched Spitsin in the face. Spitsin was transported to a nearby

hospital, where a scan revealed a hairline fracture in his jaw.

      In count III of his complaint, the only count at issue in this matter,

Spitsin sought to recover damages from WGM on a theory of respondeat

superior. That doctrine provides as follows:

      A master is liable for the acts of his servant [that] are committed


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      employment. Restatement (Second) of Agency § 219. This
      liability of the employer may extend even to intentional or
      criminal acts committed by the servant. Restatement (Second)
      of Agency § 231. Whether a person acted within the scope of
      employment is ordinarily a question for the jury.         Where,
      however, the employee commits an act encompassing the use of
      force which is excessive and so dangerous as to be totally
      without responsibility or reason, the employer is not responsible
      as a matter of law. If an assault is committed for personal
      reasons or in an outrageous manner, it is not actuated by an
      intent of performing the business of the employer and is not
      done within the scope of employment.

      The Restatement (Second) of Agency § 228 defines conduct
                                                            Conduct of a
      servant is within the scope of employment if, but only if: (a) it is
      of the kind he is employed to perform; (b) it occurs substantially
      within the authorized time and space limits; (c) it is actuated, at
      least in part, by a purpose to serve the master[;] and (d) if force
      is intentionally used by the servant against another, the use of
      the force is not unexpectable by the master. (2) Conduct of a
      servant is not within the scope of employment if it is different in
      kind from that authorized, far beyond the authorized time or
      space limits, or too little actuated by a purpose to serve the
      master.

Fitzgerald v. McCutcheon, 410 A.2d 1270, 1271-72 (Pa. Super. 1979)

(some citations omitted).



the following substantive propositions in support of its objections:

      8.    An employer is not, by reason of the doctrine of
      respondeat superior, liable for an assault and battery by an
      employee, since such conduct, constituting [a] wanton or willful
      tort on the part of the employee, is generally regarded as
      beyond the scope of employment.

      9.

      business if the employee commits an act encompassing the use
      of force which is excessive and so dangerous as to be totally


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J-S23039-14


      without responsibility or reason, and the employer is not
      responsible as a matter of law. Costa v. Roxborough Mem.
      Hosp., 708 A.2d 490 (Pa. Super. 1998);
      Inc., No. Civ.A. 99-2459, 1999 WL 975125 (E.D.Pa. Oct. 6,
      1999).

      10. The alleged actions of [Johnson] are exactly the kind of
      forceful act that is excessive and so dangerous as to be totally
      without responsibility or reason and therefore [WGM] is not
      vicariously liable as a matter of law.




at 2-3 (citations omitted or modified).

      On September 9, 2013, after hearing argument, the trial court issued



                            respondeat superior claim against WGM.         On



order. On December 4, 2013, the trial court directed Spitsin to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

However, on the same day, the trial court entered a Rule 1925(a)



Appeal . . ., we determine that the Court has adequately addressed all issues

in its Opinion with accompanying

Statement Pursuant to Pa.R.A.P. 1925(a), 12/4/2013.            Nonetheless, on

December 19, 2013, Spitsin timely filed a Rule 1925(b) concise statement.

On December 23, 2012, the trial court issued an order reiterating its reliance

upon its September 9, 2013 opinion.

      Before this Court, Spitsin raises the following issue:



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J-S23039-14


      James Johnson, an on-duty cab driver employed by WGM,
      physically assaulted Spitsin while he was being restrained on the
      ground in an effort to recover unpaid cab fare belonging to
      WGM. On the facts averred in the complaint, is it clear and free

      dangerous under the circumstances, and totally without
      responsibility or reason, that he departed from the scope of his
      employment as a matter of law?

Brief for Spitsin at 4.

      For well over a century, Pennsylvania courts have endeavored to

delineate when an employer may be held liable for the acts of its employee.

The standard has changed at most modestly during that span.        In Potter

Title & Trust Co. v. Knox, our Supreme Court characterized the governing

inquiry as follows:

      It is a general rule of law that when an act is done in the course

      from liability although the employe[e] abused his authority and
      thereby inflicted injury upon another. Brennan v. Merchant &
      Co., 54 A. 891, 892 (Pa. 1903); Pilipovich v. Pittsburgh Coal
      Co., 172 A. 136, 137, 138 (Pa. 1934); Orr v. Wm. J. Burns
                                 , 12 A.2d 25, 26, 27 (Pa. 1940). But
      there is an important exception to that general principle. In the
      Restatement of Agency § 229, comment b, it is said that

      result, it may be done in so outrageous or whimsical a manner
                                                                   231,
                               * * a gardener using a small stick in an
      assault upon a trespassing child to exclude him from the
      premises may be found to be acting within the scope of the
      employment; if, however, the gardener were to shoot the child
      for the same purpose, it would be very difficult to find the act
                                              235, comment c, under
                                                              t that an
      act is done in an outrageous or abnormal manner has value in
      indicating that the servant is not actuated by an intent to
                                       * * *. In such cases, the facts
      may indicate that the servant is merely using the opportunity

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J-S23039-14


       afforded by the circumstances to do the harm. Hence, unless
       the principal has violated a personal duty to the person injured,
       or unless he becomes liable because of the nature of the
       instrumentality entrusted to the servant * * *, he is not liable for
       s

113 A.2d 549, 551 (Pa. 1955) (citations modified).2

       As Pennsylvania courts have come to rely more heavily, or at least



forth the inquiry regarding the scope of employment as follows:

       In certain circumstances, liability of the employer may also
       extend to intentional or criminal acts committed by the
       employee. 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.

Costa, 708 A.2d at 493 (citing, inter alia, Restatement (Second) of Agency

§ 228) (citations and internal quotation marks omitted).

       The trial court in this case relied solely upon Howard v. Zaney Bar,

85 A.2d 401 (Pa. 1952), and determined that the facts as set forth by

Spitsin in his complaint and the inferences to be drawn therefrom


____________________________________________


2
      Since our Supreme Court cited the Restatement of Agency in Potter
Title, Pennsylvania courts have continued to cite that restatement and its
successor Restatement (Second) of Agency. Neither the respective rules
cited in Potter Title nor the quoted comments thereto changed materially
between the first and second restatements.



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J-S23039-14




whimsical that,

employment to an extent excusing WGM from all liability. That is to say, the

trial court effectively concluded that the instant case was more akin to the

                                           ener gunning down a trespassing

child than its counterexample of the same gardener chasing the child off

with a stick.

                                      Howard illustrates half of the gun

versus stick dichotomy. Our Supreme Court explained the underlying factual

history of that case as follows:

      [I]n the early hours of the morning the plaintiff  a regular
      customer of this bar room entered the premises and consorted

                                       ho was behind the bar said to


      reached under the counter and pulled a pistol out * * * he shot
      at me. The bullet went through my little finger and into my
            **                                      ...

85 A.2d at 402 (modifications and punctuation in original).   In that case,



                     or judgment notwithstanding the verdict upon the basis




duties include maintaining order within his establishment, the trial court

                                                      reasonable means to


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J-S23039-14



                                          Id. (emphasis in original). However, in



fo

that vicarious liability could not lie, notwithstanding the contrary findings of

the jury. Id.

      Here,     the   trial   court   found   Howard     controlling   because   the

confrontation arose when Johnson confronted Spitsin to collect the fare.




in Howard                                                              ble means to



                                                   Id.

      However, when [Johnson] punched and kicked [Spitsin] while he
      was being held on the ground by another person, unable to
      defend himself, [Johnson] departed from the scope of his
      employment.      We cannot say that punching and kicking
      customers is a reasonable method of collecting a cab fare.

Id.   In further support of its conclusion, the trial court cited the hairline

fra



so excessive and dangerous that they [were] without responsibility or

          Id.

      Spitsin contends that other cases more closely resemble the instant

case, and compel reversal.            In McClung v. Dearborne, 19 A. 698



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J-S23039-14



(Pa. 1890), for example, our Supreme Court held that an employer was



been      tasked    with   repossessing    a    cabinet   organ   from    a   client   for

nonpayment, physically assaulted the client, despite the fact that the

employer instructed the employees not to assault anyone or violate the law.

See also McLaughlin v. Singer Sewing Machine Co., 75 Pa. Super. 533

(1920) (upholding vicarious liability in similar repossession case). Moreover,

Spitsin     notes    that,    in     Straiton    v.   Rosinsky,     133       A.2d     257

(Pa. Super. 1957), a movie theater was held vicariously liable when one of

its ushers struck a twelve-year-old patron with a flashlight, causing a



front of him during a film. When the usher approached and demanded that

the boy lower his knees and indicated that he would take the boy to see the

manager, the child volunteered to accompany the usher and proceeded

toward the theater exit.           At some point during the interaction, the usher

struck the boy from behind.

       WGM argues that McClung and McLaughlin are distinguishable from

the instant case. In those cases, in affirmatively dispatching employees to



carry the risk that those employees will be met with violence and will have

to counter with violence to ca

WGM at 4. WGM asserts without substantiation that collecting a cab fare is

inherently a less dangerous enterprise than repossession. WGM seeks also

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J-S23039-14



to distinguish Straiton

totally devoid of responsibility or reason as the alleged actions of [Johnson]

in the present case, who repeatedly kicked and punched a restrained

                                                            Id.

                                 have merit, and resolving the question

presented is complicated by the fact that none of the above-cited cases are

entirely on-point in their factual particulars or in their procedural posture;

none of them involve violence committed against a restrained person, and

none were decided as a matter of law on preliminary objections. Indeed, we

have found no Pennsylvania case presenting this sort of claim that was

decided on preliminary objections.

                                                                           as

excessive, made doubly so by the fact that Spitsin was fully restrained at the

time. At the same time, it seems plain that the conduct here at issue falls

somewhere in the spectrum between the outrageous use of a firearm in

Howard     exacerbated by the fact that the disorder that allegedly prompted

the violence was so minor       and the more modest, albeit contextually

excessive, violence exercised in Straiton in direct connection with the

                                                                     to these

cases, and others further inform our inquiry.




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J-S23039-14



       Interestingly, a substantial volume of prior Pennsylvania precedent

involves injuries to children.3          In McMaster v. Reale, 110 A.2d 831

(Pa. Super. 1955), for example, the question presented concer

liability for the acts of their foreman. The foreman in question allegedly had

kicked and struck a minor in the face for entering a closed worksite and



but a defense verdict as to the partners. The trial court declined to enter



partnership defendants. We affirmed. In so doing, however, we deferred to

the jury, noting that the evidence presented was consistent both with a

hypothetical finding that the foreman had acted within the scope of

                                                                Id. at 832. Our

deference to the jury in that case necessarily distinguishes it from the case

at bar.

       We must note that there appears to be at least a faint indication that,

                                    -twentieth century adoption of aspects of the



____________________________________________


3
      Indeed, the sheer volume of Pennsylvania cases involving Dickensian
narratives, in which grizzled employees dispatched youthful stowaways from
moving conveyances with tragic results, is astounding. See Brennan, 54 A.
at 893 (finding vicarious liability for injuries sustained when a carriage driver

whip, and collecting similar cases); Collins v. Rosenberg, 161 A. 580, 582
(Pa. Super. 1932) (collecting still more similar cases).




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J-S23039-14



actions of rogue employees was diminished. Compare, e.g., McLaughlin,

75 Pa. Super. at 536 (upholding employer liability merely because the acts

were in furtherance of their orders to repossess a sewing machine, because,

                                                                                    ess



                                                   Collins, 161 A. at 582 (reviewing



                with Costa, 708 A.2d at 493 (citing the modern formulation

that vicarious liability will not lie when the use or degree of force is not



                                                                           McMaster,

supra.   Viewed in that light, cases such as McClung and McLaughlin, in



predictable risk of violence, rendered the employers to some extent

complicit in the potentially violent results of forcible repossession, the

instant case is distinguishable and, thus, the result not inconsistent with

those earlier cases.

       In this case, it is fair to say, questions remain regarding whether fare

                                                         ified responsibilities.4   And
____________________________________________


4
     No one can dispute that the driver of a car for hire typically is
expected to collect the specified fare for a given trip. However, we do not
                                                                          e
than ask for the fare, nor do we know whether (or how) Johnson was
(Footnote Continued Next Page)


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J-S23039-14



that arguably raises questions of fact as to what direction or training

Johnson received with regard to addressing a situation in which a passenger

is recalcitrant about paying the fee. If Johnson received any such guidance,



authorized or implied the authorization of the use of force, and, if so, what

degree of force. In a closer case, i.e., one lacking the brutality at issue in

this case, the case might well be unfit for resolution as a matter of law. But

the facts as pleaded in this case require a different result.

      In the instant matter, Spitsin pleaded the following facts, to which he

is bound: Spitsin did not pay his fare; he attempted to flee when confronted

about paying his fare; and he was restrained by a bystander at the time that

Johnson allegedly kicked and punched him in the face repeatedly.          Thus,



granting preliminary objections, he was restrained before Johnson attacked.



with respect to fare collection; there is no allegation that any affirmative act

by WGM led Johnson to act so brutally toward Spitsin. The pleading contains



fare-collection responsibilities, however characterized, extended even to the

sort of excessive and punitive brutality inflicted by Johnson on Spitsin.

                       _______________________
(Footnote Continued)

directed to undertake (or abandon) efforts at collection if the fare were to




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J-S23039-14



Sp

justified an inference by Johnson, whether reasonable or unreasonable, that

such behavior was viewed as appropriate by WGM.



reasonably in furtherance of recovering the fare that Spitsin owed Johnson



interrupted by a bystander, and nothing in the complaint suggests that the




to take control of the situation.

      The inference is clear: Physical violence in such extreme measure, if



importantly, given the procedural posture of the case and Pennsylvania

                                             -finding in related cases, even if

discovery were to demonstrate that Johnson was trained or encouraged by

WGM to persist when necessary to collect fares from recalcitrant passengers,

the force that Johnson employed was utterly excessive and unnecessary

under these circumstances. Ultimately, unless WGM explicitly instructed its

drivers to attack restrained and vulnerable passengers who refused to



                                                                   Fitzgerald,

410 A.2d at 1272.




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J-S23039-14



      Even if WGM authorized or directed the use of some force or restraint




grossly disproportionate to the responsibility at hand



Agency §§ 228(a)(1), (2). To such effect, the Restatement of Agency offers

the following elaboration on the salient principle:

      Although an act is a means of accomplishing an authorized
      result, it may be done in so outrageous or whimsical a manner
      that it is not within the scope of employment, An assault by one
      employed to recapture a chattel, while entirely different from the
      act which he was employed to do, which was merely to take
      possession of the chattel, may be within the scope of
      employment, unless committed with such violence that it
      bears no relation to the simple aggression which was
      reasonably foreseeable.

Id. § 229 cmt. b.     This case presents a scenario that tracks closely the



fares, not necessarily to pursue those who attempted to flee without paying

and take payment by brute force. Nonetheless, it might fairly be deemed

reasonably foreseeable that some degree of violence could occur in tandem



                                                                   ing that is



that it [bore] no relation to the simple aggression which was reasonably




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J-S23039-14




such an event.

      In sum, the force employed by Johnson         as characterized by Spitsin

himself    cannot fairly be said to have occurred within the scope of

                                      See Fitzgerald, supra. Consequently,

the trial court did not err in finding as a matter of law that Spitsin had failed

to state a claim upon which relief could be granted for vicarious liability

against WGM.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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