J. A33003/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

TROY DEMBY,                      :           IN THE SUPERIOR COURT OF
                                 :                 PENNSYLVANIA
                    Appellant    :
                                 :
                 v.              :
                                 :
DREXEL UNIVERSITY, DREXEL POLICE :
OFFICER ROBERT ALLEN (BADGE      :
NO. 55), DREXEL POLICE OFFICER   :
LAMBERT REBSTOCK (BADGE NO. 52), :
DREXEL POLICE OFFICER LOUIS      :
GREGG (BADGE NO. 50), DIRECTOR   :
OF DREXEL POLICE ED SPANGLER,    :
DREXEL POLICE CAPTAIN FRED       :
CARBONARA, DOMINIC               :
CECCANECCHIO DREXEL UNIVERSITY :
DEPT. OF PUBLIC SAFETY, TIFFANY  :
AUGUSTINE, DREXEL UNIVERSITY     :
DEPT. OF PUBLIC SAFETY, DREXEL   :
POLICE DETECTIVE ROBERT LIS AND :                No. 2511 EDA 2014
DREXEL POLICE SERGEANT FERNANDO :
SANTIAGO                         :


               Appeal from the Order Entered July 24, 2014,
           in the Court of Common Pleas of Philadelphia County
           Civil Division, at No. December Term, 2013 No. 3515


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED AUGUST 16, 2016

     Troy Demby appeals from the order of July 24, 2014, sustaining

defendants/appellees’ preliminary objections in the nature of a demurrer and

dismissing his complaint with prejudice. We affirm in part, reverse in part,

and remand for further proceedings.



* Retired Senior Judge assigned to the Superior Court.
J. A33003/15


      In his complaint filed February 11, 2014, appellant described the

parties to this action as follows:

            2.     Plaintiff, Troy Demby, is an adult male who is
                   and was at all material times a resident of
                   Philadelphia, Pennsylvania.

            3.     Defendant    Drexel    University   (hereinafter
                   “Drexel”) is, upon information and belief, a
                   private   non-profit    domestic     educational
                   corporation with a registered office at 3141
                   Chestnut Street in Philadelphia, Pennsylvania.

            4.     Defendant Tiffany Augustine was at all relevant
                   times a civilian employee of Drexel charged
                   with operating a close circuit television camera
                   and was required to follow Drexel’s Public
                   Safety Policy on CCTV.

            5.     Defendant Drexel Police Officers Robert Allen
                   (Badge No. 55), Lambert Rebstock (Badge No.
                   52), and Louis Gregg (Badge No. 50) were at
                   all relevant times sworn municipal police
                   officers with law enforcement authority at
                   Drexel’s three campuses in Philadelphia:
                   University City, Center City (Hahnemann
                   Campus), and Queen Lane Medical Campus.

            6.     Defendant Drexel police Sergeant Fernando
                   Santiago was at all relevant times a municipal
                   police officer with law enforcement authority at
                   Drexel’s three campuses in Philadelphia:
                   University City, Center City (Hahnemann
                   Campus), and Queen Lane Medical Campus.
                   Sergeant Santiago had supervisory authority
                   and responsibility over Drexel’s Police Officers,
                   including Allen, Rebstock, and Gregg.

            7.     Defendant Director of Police Ed Spangler was
                   at all relevant times a municipal police officer
                   with law enforcement authority, command, and
                   oversight of all policing activity at Drexel’s
                   three campuses in Philadelphia: University


                                      -2-
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                  City, Center City (Hahnemann Campus), and
                  Queen Lane Medical Campus.

            8.    Defendant Police Captain Fred Carbonara was
                  at all relevant times a municipal police officer
                  with law enforcement authority, command, and
                  oversight of all policing activity at Drexel’s
                  three campuses in Philadelphia: University
                  City, Center City (Hahnemann Campus), and
                  Queen Lane Medical Campus.

            9.    Defendant Vice President of Public Safety,
                  Dom[i]nic Ceccanecchio, was at all relevant
                  times a civilian employee of Drexel responsible
                  for managing all Drexel security and safety
                  related programs, services, agents, and
                  employees.

            10.   Defendant Detective Robert Lis was at all
                  relevant times the Assistant Director of
                  investigation for Drexel. His responsibilities
                  included internal affairs, special investigations,
                  evidence collection, and case file management.

            11.   At all times relevant, all named individual
                  defendants were acting within the course and
                  scope of their employment and authority as
                  Drexel employees and/or police officers.

            12.   At all times relevant, Defendant Drexel owned,
                  operated, managed, employed, directed, and
                  controlled the agents, including the named
                  individual defendants, identified herein.

Plaintiff’s Complaint, 2/11/14 at ¶¶ 2-12.

      In sustaining appellees’ preliminary objections, the trial court relied on

the facts as alleged in appellant’s complaint:

                  This Court considered as true the following
            facts which were alleged by the Plaintiff in his
            Complaint, as well as all inferences reasonably
            deducible therefrom:


                                     -3-
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          13.   On or about December 30, 2011, one
                Walter Johnson was walking with
                Earl Demby on Drexel University’s main
                campus.[Footnote 1]

                  [Footnote 1] Emphasis added as
                  the Plaintiff in this case is
                  Troy Demby.

          14.   The two African American men were
                doing nothing illegal. Still, Defendant
                Augustine[Footnote 2] began following
                them utilizing various CCTV cameras,
                and observed the men try to open
                several doors on the campus, all of which
                are open to the public.

                  [Footnote 2] A Drexel employee.

          15.   None of the preserved video shows the
                men possessing any screwdrivers, nor do
                they show either of the men attempting
                to pry or force open the doors.

          16.   Defendant Augustine ignored the lack of
                any illegal activity and directed Drexel
                Police attention to the two black males
                near the Bossone building on Drexel’s
                campus.

          17.   In response, at least two Drexel Police
                vehicles responded by racing to the
                intersection of 31st and Ludlow to
                capture the men, who were simply
                walking at that point near the boundary
                of Drexel’s campus.

          18.   Defendants Gregg and Rebstock exited
                the first vehicle.      Gregg[] took
                aggressive action toward Mr. Johnson.
                Mr. Johnson fled, with Rebstock in
                pursuit.



                                  -4-
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          19.   Defendant     Gregg      redirected his
                aggressive actions toward Earl Demby,
                who raised his hands in the air.

          20.   Defendant Allen drove a second Drexel
                SUV toward Mr. Johnson at a high rate of
                speed.    He then made a wide turn,
                accelerated, and crashed his vehicle
                directly into Mr. Johnson, pinning his
                body against a concrete wall. Defendant
                Allen drove the SUV into Mr. Johnson
                with such force that its hood buckled.

          21.   Defendant Allen opened the vehicle’s
                driver door and spoke briefly with
                Defendant Rebstock.

          22.   About 15 seconds later, Allen closed the
                door and backed the vehicle up.
                Mr. Johnson crumbled to the ground due
                to the serious injuries he sustained.

          23.   Defendant Augustine saw all      of   the
                aforementioned events occur.

          24.   Defendant Santiago arrived shortly
                thereafter and was supervisor on the
                scene. He took actions to avoid divisions
                and/or officers from the Philadelphia
                Police Department from being sent to the
                scene. He succeeded.

          25.   Mr. Johnson was transported to the
                Hospital   of the    University of
                Pennsylvania.

          26.   Earl Demby was released at the
                scene. [Emphasis added.]

          27.   Earl    Demby      and     plaintiff,
                Troy Demby, are brothers. [Emphasis
                added.]




                                  -5-
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          28.   Troy Demby was not at the scene.
                He was at work and/or commuting
                home    from  work    during  the
                aforementioned incident. [Emphasis
                added.]

          29.   Police on the scene, including some
                and/or all of the Defendant Police
                Officers, completed false paperwork,
                including some that was contradictory of
                other paperwork. For example, some
                paperwork indicated that Earl Demby --
                incorrectly identified in police paperwork
                as plaintiff, Troy Demby -- was released
                from the scene because he had proper
                identification and was released for
                further investigation according to one
                report; another report indicates that
                Troy Demby was mistakenly released at
                the scene.

          30.   Additional police paperwork completed
                by the individual defendant officers
                falsely indicated that Troy Demby and
                Mr. Johnson dropped screwdrivers that
                they were purportedly using to attempt
                to pry open locked doors.

          31.   In reliance of information -- the vast
                majority of which was false -- provided
                by     Defendants     Augustine,    Allen,
                Rebstock,      Santiago,   and     Gregg,
                Philadelphia Police Detective Theodore
                Manko, Jr. (Badge No. 961) submitted
                paperwork causing the Philadelphia
                District Attorney’s Office to charge
                plaintiff, Troy Demby, with Attempted
                Burglary, Criminal Conspiracy, Attempted
                Criminal Trespass, Possession of an
                Instrument of Crime, and Criminal
                Mischief.

          32.   Mr. Johnson was arrested while being
                treated for his serious injuries that were


                                  -6-
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                caused by Defendant Allen crashing a
                large police SUV into him and pinning
                him against a concrete building.

          33.   An arrest warrant was issued for
                Troy Demby. Mr. Demby turned himself
                in once he learned of the warrant.


          34.   Defendants Carbonara and Spangler
                viewed the CCTV preserved video that
                showed Mr. Johnson being smashed into
                by the police SUV driven by Defendant
                Allen.

          35.   Defendant Lis was responsible for
                ensuring a proper investigation of the
                aforementioned incident.

          36.   Defendants Augustine, Allen, Gregg, and
                Rebstock appeared for four listings of
                Plaintiff and Mr. Johnson’s preliminary
                hearing scheduled on various dates in
                January through March, 2012. At no time
                did any of those defendants inform
                representatives   of  the    Philadelphia
                District Attorney’s Office that the
                allegations   against    Plaintiff   and
                Mr. Demby in the police paperwork were
                false.

          37.   On     March  28,    2012,   Defendants
                Augustine and Gregg did testify against
                Plaintiff and Mr. Johnson at their
                preliminary hearing. Augustine offered
                incomplete testimony, leaving out the
                portion of the incident in which Allen
                drove his vehicle into Mr. Johnson, and
                Gregg offered false testimony about the
                incident, resulting in Plaintiff and
                Mr. Johnson being bound over for trial on
                the charges detailed supra.




                                  -7-
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          38.   Drexel,    through    its   agents    and
                supervisors acting in the course and
                scope of their employ, including Director
                of Police Ed Spangler, Police Captain
                Fred Carbonara,    Detective    Lis,  and
                Vice President of Public Safety Dom[i]nic
                Ceccanecchio, knew, should have known,
                or were recklessly indifferent to the fact
                that the Drexel CCTV video did not
                support the averments being made in the
                police paperwork at issue or the charges
                being brought by the Philadelphia District
                Attorney’s Office.

          39.   Drexel,     through    its   agents    and
                supervisors acting in the course and
                scope of their employ, including Director
                of Police Ed Spangler, Police Captain
                Fred Carbonara,      Detective  Lis,   and
                Visce [sic] President of Public Safety
                Dom[i]nic Ceccanecchio, knew, should
                have     known,     or    were   recklessly
                indifferent to the fact that Augustine and
                Gregg intended to offer, and did offer,
                the false and /or incomplete testimony
                against Plaintiff, Troy Demby, and
                Mr. Johnson at their preliminary hearing.

          40.   At no time did any Drexel agent or
                employee, including the named individual
                defendants, with knowledge of the actual
                events in the CCTV video, alert the
                Philadelphia District Attorney’s Office
                concerning the true nature of the events
                depicted therein.

          41.   Drexel,    through   its   agents    and
                supervisors acting in the course and
                scope of their employ, including Director
                of Police Ed Spangler, Police Captain
                Fred Carbonara,    Detective   Lis,  and
                Visce [sic] President of Public Safety
                Dom[i]nic    Ceccanecchio,   deliberately
                disregarded Drexel’s Police Directives,


                                   -8-
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                   Code    of    Conduct,       and   various
                   memoranda in carrying out their duties
                   and responsibilities during this incident
                   and its aftermath, including throughout
                   the duration of plaintiff, Troy Demby and
                   Mr. Johnson’s prosecution.

            42.    The Philadelphia District Attorney’s
                   Office, after reviewing the evidence,
                   including the available CCTV evidence,
                   withdrew    charges   against   plaintiff,
                   Troy Demby     and   Mr.   Johnson    on
                   October 15, 2012.

            Plaintiff’s Complaint, ¶ 13-42. [Emphasis added.]

                    Based upon these facts, the Plaintiff drew the
            legal conclusions that Defendants Augustine, Allen,
            Rebstock,         Gregg,      Spangler,       Carbonara,
            Ceccanecchio, Santiago, and Lis engaged in
            (Count 1) a conspiracy to make false statements to
            law enforcement, thus violating 18 Pa.C.S. § 4906.
            Plaintiff also alleged the torts of (Count 2) false
            arrest and (Count 3) false imprisonment as
            committed by Augustine, Allen, Rebstock, Gregg,
            and Santiago; (Count 4) malicious prosecution and
            (Count 5) intentional infliction of emotional distress
            as committed by Augustine, Allen, Rebstock, Gregg,
            Spangler, Carbonara, Ceccanecchio, Santiago, and
            Lis.     Plaintiff also alleged (Count 6) negligent
            infliction of emotional distress against all defendants,
            including Drexel University; (Count 7) negligence
            and (Count 8) vicarious liability on the part of Drexel
            as the employer.

Trial court opinion, 1/21/15 at 2-6.

      On July 24, 2014, the trial court sustained appellees’ preliminary

objections and dismissed the complaint with prejudice. This timely appeal

followed on August 19, 2014.      Appellant complied with Pa.R.A.P. 1925(b),

and the trial court filed an opinion.


                                        -9-
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      Appellant brings the following issues for this court’s consideration on

appeal:

            I.     Whether the lower court utilized the incorrect
                   standard of review by accepting facts outside
                   the complaint that were proffered by
                   Appellees,    and   drawing    inferences   in
                   Appellees[’] favor?

            II.    Whether the lower court erred by not applying
                   the doctrine of transferred intent?

            III.   Whether the lower court erred by determining
                   that Appellant had not pleaded sufficient facts
                   that would allow recovery under any
                   circumstance for the causes of action contained
                   [in] the complaint?

Appellant’s brief at 5.      We will address appellant’s issues together,

examining each count of the complaint to determine whether appellant pled

facts sufficient to survive demurrer.

            Our scope of review is plenary when reviewing a trial
            court’s order sustaining preliminary objections in the
            nature of a demurrer. See Glassmere Fuel Serv.,
            Inc. v. Clear, 900 A.2d 398, 401 (Pa.Super. 2006).
            “In order to determine whether the trial court
            properly sustained Appellee’s preliminary objections,
            this court must consider as true all of the well-
            pleaded material facts set forth in the complaint and
            all reasonable inferences that may be drawn from
            those facts.” Id. at 402. In conducting appellate
            review, preliminary objections may be sustained by
            the trial court only if the case is free and clear of
            doubt. See Knight v. Northwest Sav. Bank, 747
            A.2d 384, 386 (Pa.Super. 2000).

Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa.Super.

2006), appeal denied, 916 A.2d 1103 (Pa. 2007).



                                        - 10 -
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     First, we address appellant’s claim for civil conspiracy.      Appellant

alleged that appellees conspired to conceal wrongdoing, including making

false statements.

                In order for a claim of civil conspiracy to
           proceed, a plaintiff must “allege the existence of all
           elements necessary to such a cause of action.”
           Rutherfoord         v.     Presbyterian-University
           Hospital, 417 Pa.Super. 316, 612 A.2d 500, 508
           (1992) (citation omitted).

                    The Pennsylvania Supreme Court set
                    forth the elements of civil conspiracy in
                    Thompson Coal Co. v. Pike Coal Co.,
                    488 Pa. 198, 211, 412 A.2d 466, 472
                    (1979): “It must be shown that two or
                    more persons combined or agreed with
                    intent to do an unlawful act or to do an
                    otherwise lawful act by unlawful means.”
                    Proof of malice, i.e., an intent to injure,
                    is an essential part of a conspiracy cause
                    of action; this unlawful intent must also
                    be    without    justification.       [Id.].
                    Furthermore, a conspiracy          is   not
                    actionable until “some overt act is done
                    in pursuance of the common purpose or
                    design . . . and actual legal damage
                    results.”

           Id. (quotation omitted). In addition, “[a] single
           entity cannot conspire with itself and, similarly,
           agents of a single entity cannot conspire among
           themselves.” Id.

Grose v. Proctor & Gamble Paper Products, 866 A.2d 437, 440-441

(Pa.Super. 2005), appeal denied, 889 A.2d 89 (Pa. 2005). As agents of

Drexel University, appellees cannot “conspire” among themselves.         Id.




                                      - 11 -
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Therefore, the trial court properly dismissed appellant’s count of civil

conspiracy for failure to state a cause of action.

      We now turn to Counts 2 and 3 of the complaint, false arrest and false

imprisonment. Appellant argues that although appellees did not physically

arrest him, they created the paperwork containing false accusations on

which the arrest warrant was based.

            False arrest and false imprisonment are nearly
            identical claims, and courts often analyze the claims
            together. False arrest is grounded in the Fourth
            Amendment’s       guarantee    against    unreasonable
            seizures, where false imprisonment is based upon
            the    Fourth    Amendment’s      prohibition  against
            deprivation of liberty without due process of law.
            Claims of both false arrest and false imprisonment
            are predicated on an arrest made without probable
            cause in violation of the Fourth Amendment.

Wilson v. Dewees, 977 F.Supp.2d 449, 455 (E.D.Pa. 2013) (quotation

marks and citations omitted).

            The elements of false imprisonment are (1) the
            detention of another person, and (2) the
            unlawfulness of such detention. An arrest based
            upon probable cause would be justified, regardless of
            whether the individual arrested was guilty or not.
            Fagan v. Pittsburgh Terminal Coal Corporation,
            299 Pa. 109, 149 A. 159 (1930). Probable cause
            exists when “the facts and circumstances which are
            within the knowledge of the police officer at the time
            of the arrest, and of which he has reasonably
            trustworthy information, are sufficient to warrant a
            man of reasonable caution in the belief that the
            suspect has committed or is committing a crime.”
            Commonwealth v. Rodriguez, 526 Pa. 268, 273,
            585 A.2d 988, 990 (1991). (Citation omitted.)

Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).


                                     - 12 -
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      Instantly, it is undisputed that appellant was not at the scene.

Appellees never had any contact with appellant.       An arrest warrant was

issued by the Philadelphia District Attorney’s Office, not by appellees. Based

upon appellees’ “investigation,” the District Attorney’s Office determined that

probable cause existed to file criminal charges and an arrest warrant was

issued for appellant, who subsequently turned himself in to Philadelphia

police.

      The trial court contends that appellant’s false arrest/imprisonment

claims fail because the District Attorney’s Office determined that there was

probable cause to bring criminal charges based on Drexel’s investigation.

(Trial court opinion, 1/21/15 at 9.) The issue is not whether the Philadelphia

authorities had probable cause to file criminal charges, but rather whether

the information supplied by Drexel authorities was fraudulent.

      Accepting the factual allegations in the complaint to be true, as is the

standard of review, Earl Demby and Mr. Johnson were simply walking

around the university campus, which was open to the public.          They had

attempted to gain entrance to several buildings on campus, but there was no

evidence whatsoever of any criminal activity.       After the two men were

detained, and Mr. Johnson was crushed by the police SUV, it is alleged that

appellees manufactured evidence in an attempt to justify their actions.

Appellees accused “Troy” Demby and Mr. Johnson of using burglary tools in

an effort to break into university buildings. The CCTV video evidence belied



                                    - 13 -
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these accusations.     In addition, according to the complaint, appellees

perjured themselves at the preliminary hearing.        Again, for purposes of

ruling on preliminary objections, all these allegations are taken as true.

      The Philadelphia Police Department and District Attorney’s Office

reasonably relied on appellees’ information when they issued the arrest

warrant for appellant. Appellees, as law enforcement officers, surely knew

when they created a false record that their actions would lead to an illegal

arrest.   Therefore, if proven, they can be held liable for appellant’s false

arrest/imprisonment. See Patton v. Vucinic, 167 A. 450, 452 (Pa.Super.

1933) (where the plaintiff alleged that the defendant falsely and maliciously

accused him of stealing her stepfather’s car and directed his arrest by police,

the evidence was sufficient to establish a prima facie case of unlawful

arrest and false imprisonment).

      Throughout its Rule 1925 opinion, the trial court reiterates that but for

the fact that Earl Demby falsely identified himself as appellant, appellant

never would have been arrested. This statement is true as far as it goes,

but it ignores the fact that “but for” appellees’ own alleged illegal and

outrageous conduct, in dereliction of their sworn duty as law enforcement

officers, Earl Demby never would have been detained in the first place, and

Troy Demby never would have been arrested. Ultimately, appellees’ alleged

false allegations are what prompted the police to arrest appellant.          We

determine that the trial court erred in dismissing Counts 2 and 3 of



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appellant’s complaint.   Under these particularly unique circumstances, the

facts alleged by appellant were legally sufficient to make out claims for false

arrest/imprisonment against appellees.

      Count 4 alleged malicious prosecution. “In order to establish a claim

for malicious prosecution a party must establish that the defendants

instituted proceedings against the plaintiff:      1) without probable cause,

2) with malice, and 3) the proceedings must have terminated in favor of the

plaintiff.” Bradley v. General Acc. Ins. Co., 778 A.2d 707, 710 (Pa.Super.

2001), citing McKibben v. Schmotzer, 700 A.2d 484, 492 (Pa.Super.

1997).

            A private person is subject to liability for malicious
            prosecution “‘if (a) he initiates or procures the
            [institution of criminal] proceedings without probable
            cause and primarily for a purpose other than that of
            bringing the offender to justice, and (b) the
            proceedings have terminated in favor of the
            accused.’”     Hess v. County of Lancaster, 100
            Pa.Cmwlth. 316, 514 A.2d 681, 683 (1986) [quoting
            Restatement (Second) of Torts § 653 (1977)].
            “[C]riminal proceedings are initiated ‘by making a
            charge before a public official or body in such form
            as to require the official or body to determine
            whether process shall or shall not be issued against
            the accused.’” Id. (quoting Section 653 cmt. c).
            The Hess court quoted with approval the following
            portion of Section 653, comment g:

                  [G]iving the information or even making
                  an accusation of criminal misconduct
                  does not constitute a procurement of the
                  proceedings initiated by the officer if it is
                  left entirely to his discretion to initiate
                  the proceedings or not. . . . If,
                  however, the information is known


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                   by the giver to be false, an
                   intelligent exercise of the officer's
                   discretion becomes impossible, and
                   a prosecution based upon it is
                   procured by the person giving the
                   false information. In order to charge a
                   private person with responsibility for the
                   initiation of proceedings by a public
                   official, it must therefore appear that his
                   desire to have the proceedings initiated,
                   expressed by direction, request or
                   pressure      of   any   kind,  was     the
                   determining factor in the official's
                   decision to commence the prosecution,
                   or that the information furnished by him
                   upon which the official acted was known
                   to be false.

              Id. 514 A.2d at 683.

Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 33 (Pa.Cmwlth.

1998), appeal denied, 740 A.2d 236 (Pa. 1999) (emphasis added).1

       The first and third elements of a malicious prosecution claim are easily

satisfied, i.e., lack of probable cause and that the criminal proceedings

terminated in the plaintiff’s favor. As stated above, there was no probable

cause to prosecute appellant and eventually, after the District Attorney

reviewed the CCTV footage, the charges were dropped.

       Again, appellees and the trial court focus on the fact that the charges

were    not   actually   filed   by   them,     but   by   the   Philadelphia   Police


1
  “This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1088-1089 n.1 (Pa.Super. 2010),
appeal denied, 12 A.3d 371 (Pa. 2010) (citations omitted).


                                       - 16 -
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Department/District Attorney’s Office.   However, as the language quoted

above makes clear, a third party can be sued for malicious prosecution

where he procures the institution of criminal proceedings without probable

cause and primarily for purposes other than bringing the offender to justice.

Essentially, it comes down to bad faith, which is the case here. As pleaded

in the complaint, appellees knew that the allegations were false and that the

Philadelphia municipal police authorities were relying on these false

allegations to charge appellant. As alleged, appellees knew that there was

no evidence that Earl Demby or Mr. Johnson was trying to pry open doors

with screwdrivers. The paperwork was falsified and their testimony at the

preliminary hearing would therefore appear to be suspect.       Furthermore,

their alleged purpose in doing so was to cover up their own criminal

misconduct in illegally detaining Earl Demby and running over Mr. Johnson

with an SUV.

      The trial court remarks, “It was [appellant’s] brother, Earl Demby, who

set this whole series of events into motion by falsely claiming to police that

he was the Plaintiff, Troy Demby.”     (Trial court opinion, 1/21/15 at 14.)

According to the trial court, this case boils down to a simple case of

mistaken identity. We could not disagree more. In fact, it was the Drexel

University police officers who “set this whole series of events into motion”

when they responded to initial reports of two black men walking around

campus by aggressively pursuing them and pinning one of them against a



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wall with their police vehicle. Appellant alleges that they then attempted to

justify their behavior in the eyes of the public by falsifying documents. The

fact that their false allegations name Troy instead of Earl is of no moment.

Appellant pled sufficient facts in support of his claim for malicious

prosecution to survive demurrer.

     Count 5 was for intentional infliction of emotional distress.

           Liability for the tort of intentional infliction of
           emotional distress arises “where the conduct has
           been so outrageous in character, and so extreme in
           degree, as to go beyond all possible bounds of
           decency, and to be regarded as atrocious, and
           utterly intolerable in a civilized society.” Generally,
           “the case is one in which the recitation of the facts to
           an average member of the community would arouse
           his resentment against the actor, and lead him to
           exclaim, ‘outrageous.’”

Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879

A.2d 270, 281 (Pa.Super. 2005), appeal denied, 891 A.2d 729 (Pa. 2005),

quoting Strickland v. University of Scranton, 700 A.2d 979, 987

(Pa.Super. 1997).2


2
  The tort of outrageous conduct causing severe emotional distress is
outlined in § 46 of the Restatement (Second) of Torts as follows:

           (1)   One who by extreme and outrageous conduct
                 intentionally or recklessly causes severe
                 emotional distress to another is subject to
                 liability for such emotional distress, and if
                 bodily harm to the other results from it, for
                 such bodily harm.

           (2)   Where such conduct is directed at a third
                 person, the actor is subject to liability if he


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            Cases which have found a sufficient basis for a cause
            of action of intentional infliction of emotional distress
            have had presented only the most egregious
            conduct. See e.g., . . . Banyas v. Lower Bucks
            Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981)
            (defendants intentionally fabricated records to
            suggest that plaintiff had killed a third party which
            led to plaintiff being indicted for homicide); Chuy v.
            Philadelphia Eagles Football Club, 595 F.2d 1265
            (3d.Cir. 1979) (defendant’s team physician released
            to press information that plaintiff was suffering from
            fatal disease, when physician knew such information
            was false).

Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (additional citation

omitted).

      Certainly, appellant’s allegation that appellees knowingly made false

statements and presented false testimony that not only led to appellant’s

false arrest/imprisonment, but was done by the Drexel police in an effort to

shield themselves from potential civil and criminal liability does rise to the

level of the outrageous conduct described in Hoy. Most of appellees were

sworn police officers with law enforcement authority. They allegedly falsified




                  intentionally or recklessly       causes   severe
                  emotional distress.

                  (a)   to a member of such person’s
                        immediate family who is present at
                        the time, whether or not such
                        distress results in bodily harm, or

                  (b)   to any other person who is present
                        at the time, if such distress results
                        in bodily harm.


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records and lied under oath to conceal their own criminal wrongdoing. Their

behavior, if true, was beyond the bounds of all decency.

       Regrettably, however, appellant is unable to cite any authority for the

proposition that an intentional infliction claim can be sustained in this case,

where he was not the intended target of appellees’ false accusations.

Appellant was not present at the scene of Earl Demby’s arrest and had no

contact with any of the individual defendants.        We are constrained to

conclude that demurrer was properly granted as to appellant’s intentional

infliction of emotional distress claim.3

       We briefly address appellant’s argument concerning the doctrine of

transferred intent, which ordinarily applies in criminal cases but can be

invoked in intentional torts as well. 18 Pa.C.S.A. § 303; Germantown Ins.

Co. v. Martin, 595 A.2d 1172, 1175 (Pa.Super. 1991), appeal denied, 612

A.2d 985 (Pa. 1992) (“Intent may be transferred from an intended victim to

another.”), citing Nationwide Mut. Ins. Co. v. Hassinger, 473 A.2d 171

(Pa.Super. 1984).    According to appellant, even though he was not at the

scene and had no direct contact with appellees, their intent to “frame”

Earl Demby and Mr. Johnson can be transferred to him. (Appellant’s brief at

14.)   Appellant analogizes the facts to a scenario in which an individual




3
   Appellant has abandoned his negligent infliction of emotional distress
claim, pled in Count 6 of the complaint. (Appellant’s brief at 19 n.2.)


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J. A33003/15


intends to physically assault a second person, but a third person is actually

harmed. (Id. at 15.)

       There is some authority for the idea that transferred intent should

apply, beyond physical-harm cases, to cases where the actor intends to

cause severe emotional harm to one person, but instead of harming the

intended victim, the conduct harms a different person.       See Rest. (3rd) of

Torts § 46, comment (i); Prosser & Keeton on Torts § 12, p. 65 (5 th ed.

1984) (“There seems to be little reason to apply [transferred intent] when

the plaintiff suffers physical harm, and to reject it where there is mental

damage.”); Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of

Nashville, 154 S.W.3d 22, 38-39 (Tenn. 2005) (“[W]e hold that a claim of

reckless infliction of emotional distress need not be based upon conduct that

was directed at a specific person or that occurred in the presence of the

plaintiff.”).   However,   Pennsylvania     has   retained   the   “directed-at”

requirement of the Second Restatement, i.e., direct claims for intentional

infliction of emotional distress must be based upon conduct that is directed

at a specific person or performed in the presence of the plaintiff.        See

Johnson v. Caparelli, 625 A.2d 668, 671 (Pa.Super. 1993), appeal

denied, 647 A.2d 511 (Pa. 1994) (holding that Section 46(1) “applies to

situations in which a person suffers severe emotional distress as a result of

outrageous conduct which is directed at that individual”).         Because the

alleged extreme and outrageous conduct of appellees was not “directed at”



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appellant, and he was not present at the time the acts were committed, he

cannot recover for intentional infliction of emotional distress. Johnson. The

cases relied upon by appellant in support of application of the transferred

intent doctrine, including Martin and Hassinger, involved bodily injury and

are inapposite.

      Finally, we address appellant’s claims for negligence and vicarious

liability against Drexel University. The trial court dismissed these claims on

the basis that none of the conduct described in the complaint constitutes any

legally cognizable tortious or wrongful conduct by Drexel’s employees or

agents. (Trial court opinion, 1/21/15 at 18.) Obviously, this conclusion is

incorrect, since we have already found that appellant has set forth

prima facie claims for false arrest/imprisonment and malicious prosecution.

      It is well settled that an employer has the duty to exercise reasonable

care in selecting, supervising, and controlling its employees. Brezenski v.

World Truck Transfer, Inc., 755 A.2d 36, 42 (Pa.Super. 2000) (citation

omitted).   See also Heller v. Patwil Homes, Inc., 713 A.2d 105, 107

(Pa.Super. 1998) (“Our reasoning that an employer may be liable directly for

wrongful acts of its negligently hired employee comports with the general

tort principles of negligence long recognized in this jurisdiction.”), citing

Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968). Here, under

Count 7, negligence, appellant alleged, inter alia, that Drexel failed to

properly train and supervise its employees, including the defendant police



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officers, resulting in harm to appellant. Appellant alleged that Drexel failed

to train the defendants in the use of force and investigative techniques,

including stops and pursuits.    (Plaintiff’s complaint, 2/11/14 ¶ 63; RR at

A15.) Appellant alleged that Drexel failed to have appropriate policies and

procedures in place and failed to meaningfully review its employees’ actions,

resulting in the wrongful prosecution of appellant.     (Id.)   Appellant has

sufficiently pled negligence against Drexel to survive demurrer.      The trial

court erred in dismissing appellant’s negligence cause of action against

Drexel based on negligent training/supervision.

      Similarly, with regard to vicarious liability, appellant alleged that the

individual defendants acted within the course and scope of their authority

with Drexel. (Id. at ¶ 68; RR at A16.) Appellant alleged that their actions

were performed in furtherance of the public safety objectives of Drexel, and

were authorized and customary as part of Drexel’s campus policing and

public safety programs. (Id. at ¶¶ 69-70; RR at A16-A17.)

            As we noted in Sutherland v. Monongahela Valley
            Hosp., 856 A.2d 55, 62 (Pa.Super. 2004):

                  Pennsylvania law with regard to the
                  vicarious liability of an employer for the
                  acts    of   its    employee   was    well
                  summarized in R.A. v. First Church of
                  Christ, 748 A.2d 692[, 699] (Pa.Super.
                  2000), as follows:

                        It is well settled that an
                        employer is held vicariously
                        liable for the negligent acts
                        of his employee which cause


                                    - 23 -
J. A33003/15


                         injuries to a third party,
                         provided that such acts were
                         committed during the course
                         of and within the scope of
                         the employment.

Scampone v. Grane Healthcare Co., 11 A.3d 967, 990 (Pa.Super. 2010),

affirmed in part on other grounds, 57 A.3d 582 (Pa. 2012).

             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.

R.A., 748 A.2d at 699 (internal quotation marks omitted).

       Instantly,   appellant   pleaded   that   the   defendants,   agents   and

employees of Drexel, committed torts against him in the course and scope of

their employment.      We determine that appellant stated sufficient facts to

state a claim for vicarious liability against Drexel for the actions of its

employees. Therefore, the trial court erred in dismissing Count 8, vicarious

liability.

       For these reasons, we affirm in part, and reverse in part. The order

dismissing Count 1 (civil conspiracy), Count 5 (intentional infliction of

emotional distress), and Count 6 (negligent infliction of emotional distress)

is affirmed; that part of the order dismissing Count 2 (false arrest), Count 3




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(false imprisonment), Count 4 (malicious prosecution), Count 7 (negligence

-- Drexel), and Count 8 (vicarious liability -- Drexel), is reversed.

      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: 8/16/2016




                                     - 25 -
