Phila. judge urges appeals court to affirm decision to dismiss suit by custodians

By Jon Campisi | May 30, 2012

A trial court judge is seeking to have a state appellate panel affirm an earlier decision he rendered that granted summary judgment to three defendants being sued by two custodians who allege they were wrongfully fingered, and subsequently retaliated against, for stealing a laptop computer from a worksite.

In an opinion filed May 25, Philadelphia Common Pleas Court Judge Allan L. Tereshko requested that his decision to grant summary judgment to Viropharma Inc., the Hankin Group and Budget Maintenance Inc. in a case initiated by Jovon Woodward and James Jackson be upheld.

The two plaintiffs initially filed suit against the defendants in December 2010 following an incident in the fall of 2009 in which the two custodial workers were accused of taking a laptop computer from Viropharma.

The plaintiffs performed custodial work for Budget, which was retained by Viropharma for a maintenance project.

On Sept. 9, 2009, Viropharma and Hankin reported the theft of a laptop computer to the Upper Uwchlan Police Department, alleging that the two plaintiffs were the ones who took the item.

The defendants claimed to have witnessed the theft on surveillance video.

The plaintiffs, however, claimed that all they removed from the premises was a complimentary beverage.

The defendants eventually conceded that the video showed only the drink being removed from the site, but they later did an about face, and engaged in what the plaintiffs claim was a bid to purposely discredit their names.

The lawsuit claimed that Viropharma and Hankin used the “lucrative” maintenance contract as leverage over the head of Budget, and convinced Budget to participate in what the plaintiffs contend was an “unlawful common scheme that would continue to maintain the false and baseless position that Plaintiffs were thieves and that Plaintiffs were thus forever barred from the above premises, and would wrongfully retaliate against Plaintiffs for daring to have protested their innocence and to have welcomed the support and advocacy of Defendant Budget.”

Budget then accused the defendants of stealing the Snapple beverages that the plaintiffs claimed were complimentary. The plaintiffs were terminated by Budget on Sept. 22, 2009.

The plaintiffs then filed suit, asserting claims of defamation, invasion of privacy-false light, invasion of privacy-intrusion upon seclusion, breach of contract, promissory estoppel, intentional interference with contractual relations, wrongful discharge, concerted tortious conduct and civil conspiracy.

The two former custodians also asserted claims for punitive damages.

The trial court judge eventually dismissed the suit against the various defendants, a decision appealed by the plaintiffs.

In late November 2011, the state Superior Court quashed the plaintiffs’ two earlier appeals leaving one appeal pending.

On Dec. 7, 2011, the trial court ordered the plaintiffs to file their Concise Statement of Errors on Appeal, which they did about two weeks later.

On appeal, the plaintiffs contend that the trial court erred by dismissing the plaintiffs’ various claims against the three defendants.

In his opinion, Tereshko, the Common Pleas Court judge, urged that his decision to dismiss the lawsuit be affirmed because the claims in the civil action have no merit.

Tereshko wrote that the defendants didn’t intrude into the plaintiffs’ private seclusion, they had a right to terminate employment because work policy permitted Budget to terminate any employee upon the request of a customer such as Viropharma, and that as at-will employees, the plaintiffs did not have a contractual relationship with their employer, Budget.

“In the instant matter, Plaintiffs have the burden of proving that they were not employed at-will, yet Plaintiffs have not asserted either the existence of an employment contract or that Budget’s employee manual was offered to Plaintiffs as part of an offer of employment with Budget,” Tereshko wrote. “Therefore, in the absence of an employment contract, Plaintiffs could be discharged for any reason or no reason at all, and any claim for Intentional Interference with Contractual Relations must necessarily fail because Plaintiffs were not employed pursuant to a contract with Budget.”

Tereshko also wrote that the plaintiffs failed to successfully plead their claim for civil conspiracy because the two did not offer any alleged unlawful acts committed by the defendants.

And because the plaintiffs’ underlying tort claims were dismissed, the judge wrote, there can be no claim for concerted tortious conduct.

Finally, Tereshko wrote that the punitive damages claim cannot stand since the defendants’ actions were not determined to be intentional, reckless or malicious.

“In the instant matter, Defendants’ actions were not the product of an evil motive or reckless indifference to the rights of others and because Plaintiffs’ substantive claims were dismissed, and a request for punitive damages must be incidental to another claim, Plaintiffs cannot recover punitive damages,” Tereshko wrote.

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