J-A33032-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

PHILIP DIAH-KPODO,

 Appellant

v.

WAWA, INC., VICKI SCHWARTZ, AND 

HOWARD B. STOECKEL,

 Appellees

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 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 
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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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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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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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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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(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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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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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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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. 
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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