J-A20036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID NOWAKOWSKI, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
E.E. AUSTIN AND SON, INC., :
AMTHOR STEEL CO., CARRARA :
STEEL ERECTORS, INC., CH2M HILL :
ENGINEERS, INC.,GENERAL :
ELECTRIC CO., UPMC, KNOX, :
MCLAUGHLIN, GORNALL, AND :
SENNETT, P.C. : No. 1854 WDA 2017
Appeal from the Order December 7, 2017
in the Court of Common Pleas of Erie County,
Civil Division at No(s): No. 11888-17
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 20, 2018
David Nowakowski (“Nowakowski”), pro se, appeals from the Order
dismissing his Petition for Injunctive Relief, with prejudice, sustaining the
Preliminary Objections filed by E.E. Austin and Son, Inc. (“E.E. Austin”),
Amthor Steel Company (“Amthor”), Carrara Steel Erectors, Inc. (“Carrara
Steel”), CH2M Hill Engineers, Inc. (“CH2M”), General Electric Company (“GE”),
UPMC, and Knox, McLaughlin, Gornall and Sennett, P.C. (“Knox”) (collectively,
“Defendants”), and dismissing Nowakowski’s Complaint, with prejudice. We
affirm.
Nowakowski filed a Complaint on July 5, 2017, raising claims of sexual
harassment, intentional infliction of emotional distress, negligent infliction of
emotional distress, intrusion upon seclusion, civil conspiracy, negligence, and
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wrongful discharge. Nowakowski also requested punitive damages in the
amount of $3,000,000 from each defendant, as well as compensatory
damages from E.E. Austin, CH2M, and Amthor. According to Nowakowski, he
filed the Complaint following the dismissal of a sexual discrimination claim he
had filed with the Pennsylvania Human Relations Commission during his
employment with E.E. Austin.
In his Complaint, Nowakowski, an engineer, stated that he had
previously been employed by defendants Amthor, CH2M (in a subcontracted
position at GE), and E.E. Austin. Nowakowski essentially argued that the
Carrara family (the owners of Amthor) “is a mob family, which uses
psychological games to intimidate, unnerve and ultimately control targeted
individuals[,]” and claimed that he has been the subject of stalking,
harassment and intimidation since “[p]robably [] the summer of 1995.”1 In
his expansive Complaint, Nowakowski offers a multitude of suspicions and
allegations, naming various combinations of individual Defendants as the
responsible parties for each incident. As it is otherwise difficult to discern the
relevant facts of this case from the record, we highlight the allegations
identifying a connection among several Defendants.
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1 In the Conclusion of his Complaint, Nowakowski recalls playing in a soccer
tournament in Buffalo, New York, when he was about 11 or 12 years old,
during which a player on the opposing team “attempt[ed] to drag
[Nowakowski] to the ground with a leg tackle.” Complaint, 7/5/17, at 53
(unnumbered). Nowakowski also stated that his team’s goalie suffered a
broken leg during the same game, and claims that “an organized crime family
in Erie[] hired an organized crime family in Buffalo to train a child to break
the legs of other children….” Id.
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Only one allegation links three of Nowakowski’s employers (GE, Amthor,
and E.E. Austin):
19. Let[’]s talk about horses. For a number of reasons, the
concept of a draught animal is an interesting and telling
metaphorical tool. A horse can be broken, trained, and
slaughtered. While working at [GE,] [Nowakowski] noticed that
his direct supervisor[,] Doug Czerwinski[,] started to make a noise
with his lips like a horse exhaling through its lips (horse lips). The
noise seemed to be forced rather than a part of Doug’s general
demeanor. Giving this idea credence[,] a foreman for a [GE]
subcontractor, who worked closely with [Nowakowski], said on
one occasion to [Nowakowski], “treat the horse like a
thoroughbred and you will never hear the nag.” [Nowakowski]
asked what he meant, but there wasn’t anything else there. He
wasn’t talking about some situation [Nowakowski] and he were in
as workers. Later[,] while working with E.E. Austin …, Steve
Morvey began to periodically make the horse lips noise[,] and
again it didn’t seem to be part of his normal cache of phrases.
Further, in one instance during the spring of 2017, [Nowakowski]
was approached on the street while walking his dogs, only to hear
the same noise. The icing on this cake[,] however[,] was the
pieces of hay that were left on the center consol [sic] of
[Nowakowski’s] truck in the fall of 2016. Also, a rusted horseshoe
knickknack vanished from [Nowakowski’s] bedroom in 2011, while
working with Amthor…. [Nowakowski] believes that the seminal
event, which lead [sic] to this horse[-]based metaphor, was a
story Kim Carr[a]ra of Amthor … told at a staff meeting regarding
his horse. Kim Carrara was mending a fence and his horse
approached him and bit him on the arm. Kim Carr[a]ra reacted
by hitting the horse in the face with a hammer. Aside from an
animal abuse charge, this story stands as the beginning of a more
nuanced form of threat. This theme ties each of [Nowakowski’s]
employers together, except for CH2M …, between 2011 and 2015.
It also brings the Amthor … obsession with “the Godfather” into
focus.
Id. at 16-17. Additionally, there is only one allegation pertaining to UPMC
and Knox:
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62. While searching for work after leaving E.E. Austin …,
[Nowakowski] included the phrase “from cradle to grave” in his
cover letters as a reference to the project ownership mantra
purported by [his] supervisor at the [GE] location in Erie, Pa. The
mantra was included in [Nowakowski’s] resume to offer a look at
the level of responsibility [Nowakowski] carried while working for
CH2M …. While working at the [GE] facility in Erie, Pa[,]
[Nowakowski] did not see anything wrong with using the phrase
to describe project ownership. On January 28, 2017[,] an
advertisement was played on FM 107.1 around 3 p[.]m[.] for
UPMC. The commercial featured a doctor discussing a medical
program developed in the Temple University Hospital System,
which offered a “cradle to grave” view of medical care in gunshot
wound cases. The discussion came off particularly dark and
disturbing, considering the inclusion of child victims. In other
words, this doctor was making light of the sad fact that the
hospital was watching these children from their “cradle to their
grave,” which was brought on by gun violence. This has particular
meaning relative to the resume of [Nowakowski] because he was
educated at Temple University. In a later advertisement for Knox
…, a local law firm in Erie, Pa, an attorney discussed a “cradle to
grave” project management style in litigation. The attorney
speaking also discussed employment litigation. Here, these
advertisements were an attempt to make it clear to [Nowakowski]
through mass media outlets that [his] information was being
shared and distributed around the Erie region.
Id. at 34.
E.E. Austin, CH2M, and GE each filed Preliminary Objections. Amthor
and Carrara Steel jointly filed Preliminary Objections, as did Knox and UPMC.
Nowakowski filed an Answer as to each of these Preliminary Objections.
On August 25, 2017, Nowakowski filed an Amended Complaint,
correcting the names of two of the Defendants. E.E. Austin, UPMC and Knox,
CH2M, and Amthor and Carrara Steel filed Preliminary Objections to the
Amended Complaint.
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On September 11, 2017, Nowakowski filed a Petition for Injunctive
Relief, requesting (1) relief from corrupt organizations, i.e., the Carrara “mob
family,” (2) injunctive relief in the amount of $40,000, for the purpose of
moving away from the “social disease” of the Carrara family, and (3) relief
from the continued stalking of Nowakowski’s family. Additionally, Nowakowski
stated that “the mouth of the snake must be removed from the prey that is
Erie, PA[,] and all individuals associated with the referenced [C]omplaint must
… be removed from participation with Erie, PA, and the Commonwealth[] of
Pennsylvania.” Petition for Injunctive Relief, 9/11/17, at 12 (unnumbered).
CH2M and GE each filed a Response in opposition to Nowakowski’s
Petition for Injunctive Relief.
By Order entered on December 7, 2017, the trial court, concluding that
it lacked authority to grant the relief requested, dismissed Nowakowski’s
Petition for Injunctive Relief, with prejudice. Additionally, finding that
Nowakowski’s Complaint “fail[ed] to state any coherent facts which, even if
taken as true, would support a cognizable legal action against any of the
Defendants,” the trial court sustained Defendants’ Preliminary Objections, and
dismissed Nowakowski’s Complaint, with prejudice.
Nowakowski filed a timely Notice of Appeal. The trial court thereafter
ordered Nowakowski to file a Pa.R.A.P. 1925(b) concise statement of matters
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complained of on appeal. Nowakowski timely complied.2
On appeal, Nowakowski presents the following issues for our review:
A. Did the trial court error [sic] by considering [Nowakowski’s]
[C]omplaint “lacking sufficient evidence, that if considered true,
would constitute a valid claim[?]”
B. If a pro se party experiences intimidation, while drafting and
filing a complaint, should that party be penalized for defects within
the complaint?
C. Did the trial court error [sic] by not considering the presence
of new matter as [P]reliminary [O]bjections were raised[?]
D. Can [Nowakowski] reasonably receive a fair and impartial
determination in the Erie County Court of Common Pleas? Along
the same lines, can [Nowakowski] expect fairness from the
Superior Court?
Brief for Appellant at 3-4.
Our standard of review for an order sustaining preliminary objections is
well settled.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading would
permit recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. When
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2 We note that, rather than clearly identifying purported trial court errors,
Nowakowski’s lengthy Concise Statement includes largely incoherent
arguments concerning his disagreement with the trial court’s dismissal of his
Complaint and denial of injunctive relief. Citing Pa.R.A.P. 1925(b)(4)(vi),
Nowakowski states that because he “cannot identify for certain the basis for
the [trial court’s] decision[,]” the generality of his Concise Statement should
not be a basis for finding waiver.
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sustaining the trial court’s ruling will result in the denial of claim
or a dismissal of suit, preliminary objections will be sustained only
where the case is free and clear of doubt.
Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071, 1073 (Pa. Super. 2004)
(citation omitted).
We will address Nowakowski’s claims together. In his first claim,
Nowakowski asserts that the trial court did not give appropriate weight to the
facts he set forth in his Complaint. Brief for Appellant at 7. Nowakowski also
argues that the defects in his Complaint should be overlooked due to the
continuing intimidation by Defendants. Id. at 7, 8.
In his second claim, Nowakowski again asserts that any defects in the
documents he submitted to the court are the result of the intimidation he
experienced as the target of the conspiracy. Id. at 10-11.
In his third claim, Nowakowski asserts that “the conspiracy against
[him] continues,” and asks us to consider “several instances of evidence.” Id.
at 12. Specifically, Nowakowski claims that
[he] is being watched so closely, that after purchasing grape jam[]
(importantly[, Nowakowski] typically purchases grape jelly,
indicating that the conspirators look for changes in behavior in
order to make their existence known, potentially by viewing
purchase lists on Giant Eagle [c]omputer [s]ystems)[,] at a Giant
Eagle grocery store[, a] packet of grape jam was left on the
sidewalk before him as he walked his dog this past January. A
worn down snow shovel blade that [Nowakowski] had placed in
his recycling was also placed in the same location. Further, on
March 2, 2018[, Nowakowski] received a Giant Eagle fuel
members coupon book with his address, but his mother[’]s name
in the address block. Either, the conspirators created a new Giant
Eagle [m]ember account with mashed up information[,] or they
change[d] around the information in the existing accounts.
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Similarly, advertisements on the radio from local architects
and car dealers have been used to send conspiratorial intimidation
across the air waves, through the use of the terms “parallel bars”
as a mixed up reference to [Nowakowski’s] gymnastics career
under an engineering drafting reference and the use of the term
“center city” by a car dealer, not in the downtown area of Erie, as
a reference to the time [Nowakowski] lived in Philadelphia, which
has labeled its downtown area Center City.
Id. at 12-13.
In his fourth claim, Nowakowski “questions whether [the] Erie County
Court of Common Pleas or even the Superior Court can reasonably offer a fair
and impartial determination in this matter.” Id. at 14.
The only citations in Nowakowski’s brief relate to the legal sufficiency of
a pleading and this Court’s standard for reviewing the grant of preliminary
objections. Nowakowski’s argument is otherwise devoid of relevant legal
citations and adequate discussion of his claims. See Pa.R.A.P. 2119(a)
(stating that the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”). Although Nowakowski baldly asserts
that he sufficiently pled causes of action for each of the claims raised in his
Complaint, he has failed to set forth the elements of those causes of action,
or to point to any contention supporting those elements. Further, Nowakowski
has offered no explanation as to why he would be the target of an elaborate,
ongoing conspiracy. Because Nowakowski failed to adequately develop any
of his claims on appeal, his claims are waived. See Pa.R.A.P. 2119(a); see
also Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (stating that
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“arguments which are not appropriately developed are waived.”); Bombar v.
West Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (stating that “[t]his
Court will not act as counsel and will not develop arguments on behalf of an
appellant.”).
Accordingly, we affirm the trial court’s Order denying Nowakowsi’s
Petition for Injunctive Relief, granting Defendants’ Preliminary Objections, and
dismissing the Complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2018
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