HARRISBURG — A Pennsylvania appellate court has partly reversed the dismissal of an $8 million lawsuit that claimed a Blue Cross Blue Shield contractor failed to stop accusations that a former employee was sneaking into a company bathroom to engage in homosexual prostitution.

The appeal was heard by Superior Court judges Anne E. Lazarus, William H. Platt and Paula Francisco Ott, who penned the court’s April 4 decision.

The case stems from a lawsuit filed by Eugene D.M. Freeman against his former employer, Inter-Media Marketing Inc., after the assistant to IMM’s president allegedly “called him a prostitute” and said he was sneaking “into the adjoining executive bathroom for homosexual prostitution,” according to the appellate court’s decision. 

Freeman also claimed the company’s chief operating officer overhead the comments and laughed at them.

Freeman worked at a call center in West Chester, and his job consisted of explaining health plan benefits to clients of CareFirst Blue Cross Blue Shield.

Freeman claimed in his suit that the assistant and other employees continued to repeat the defamatory comments until his employment contract ended. He further claims that he reported the “accusers” to his supervisor, who allegedly failed to investigate or take any action to stop them. 

The suit went through several rounds of preliminary objections and amended complaints before the Court of Common Pleas of Chester County dismissed Freeman’s fourth amended complaint with prejudice.

“Without leave of court, Freeman added two additional defendants, Qualfon and Paul Stantry, in [his fourth amended complaint],” Ott wrote in the decision. “Once again, IMM filed preliminary objections… On July 11, 2017, the trial court entered an order sustaining IMM’s preliminary objections and dismissing Freeman’s fourth amended complaint. In the order, the trial court noted [that] Freeman added Qualfon as a defendant without first obtaining consent or leave of court.”

Freeman appealed the decision, arguing that he didn’t need permission to add Qualfon as a defendant and that the court had erred in determining that “he failed to plead the foreseeability requirements of his cause of action for negligent supervision,” according to the appellate court’s decision.

“Freeman argues [that] the trial court erred in finding he needed [the court's] permission to add Qualfon as a defendant,” Ott said in the decision. “He insists [that] Pennsylvania Rule of Civil Procedure 1033(a) permits the correction of a party’s name in an amendment, and once the court granted him leave to file a fourth amended complaint, ‘no further consent was necessary’ to add Qualfon as a defendant.”

The appellate court, however, sided with the trial court, which had ruled that its “order granting him leave to file the fourth amended complaint gave him ‘carte blanc’ to make any amendments he saw fit.”

“We find no abuse of discretion in the trial court’s ruling,” Ott wrote in the decision. “Although the court gave Freeman permission to file a fourth amended complaint, that permission was in the context of the court’s order sustaining the preliminary objections to his third amended complaint. Freeman never requested permission to add Qualfon as a defendant. Furthermore, as the trial court explained, Freeman simply added Qualfon to the caption of his complaint, and [he] did not provide any explanation as [to] why it was not named in the prior four complaints.”

The appellate judges also determined that the trial court judge had erred in ruling that the defamatory remarks weren’t foreseeable.

“Freeman averred in his complaint that the accusations continued every day throughout his entire period of employment at IMM,” Ott wrote in the decision. "Accepting Freeman’s allegations as true, as we must pursuant to our standard of review, we find that Freeman’s complaint contains sufficient facts to satisfy the foreseeability requirements of his claim. Indeed, once he reported the defamatory comments to a supervisor, the employees’ continued harassment was foreseeable to the employer.”

The appellate court remanded the case back to the trial court for further proceedings.

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