author: NEALON, J.,

text:
    Polito v. AOL Time Warner Inc.
    C.P. of Lackawanna County,
    no. 03 CV 3218.

      Terrence J. McDonald, for plaintiff.

      Carrie Davis, senior paralegal, for defendant.
    January 28, 2004
   NEALON, J.,

The recipient of harassing electronic communications from pseudonymous authors seeks to compel an internet service provider to reveal the identities of its anonymous subscribers who have transmitted the offensive e-mails and instant messages. Based upon the material submitted for review, the requesting party has established that: (1) she has a prima facie basis for asserting criminal or civil liability against the culpable authors; (2) the identifying information is relevant to her claims and necessary to obtain redress; (3) she is seeking the information in good faith and not for some improper purpose; and (4) she is unable to obtain the identifying information by alternative means. Therefore, she is entitled to discover the identities of the anonymous subscribers provided that the internet service provider first notifies the anonymous subscribers in advance to afford them the opportunity to oppose the disclosure of their identities.

I. FACTUAL BACKGROUND

Plaintiff Michele Polito has filed this action against defendant AOL Time Warner Inc. seeking the identities of AOL subscribers who have forwarded “harassing ... pornographic, embarrassing, insulting, annoying and... confidential” electronic communications to her via the internet. (Dkt. entry no. 1, ¶4.) The anonymous individuals transmitting the abusive e-mails and instant messages to Polito use multiple screen names which they frequently change, thereby preventing Polito from permanently blocking her receipt of these harassing communications. Polito has changed her own screen name in an effort to avoid receipt of these communications, but the anonymous authors have inexplicably obtained her new screen names and resumed their harassment. (Id., ¶¶6-7.) Although Polito has asked AOL to identify the account holder(s) for the offending screen names, AOL has indicated that it will “only provide said information upon a court order.” (Id., ¶12.)

Hence, Polito commenced this action on August 1, 2003, and secured a rule to show cause why AOL should not be compelled to release the requested information. (Diet, entry no. 2.) Following its receipt of the rule to show cause, AOL forwarded correspondence to the anonymous subscribers in question advising them of Polito’s lawsuit and stating:

“As set forth in our terms of service, it is AOL’s policy to protect the privacy of its members to the fullest extent consistent with its obligations under law. The terms of service state: ‘We will release specific information about your account only to comply with valid legal process such as a search warrant, subpoena or court order ....’
“It is AOL’s policy to require service of a valid legal process before it will disclose member identity information. Pursuant to AOL’s policy, we promptly notify the member(s) whose information is sought so that the member whose information is sought will have adequate opportunity to pursue any legal remedy that may be available.
“Please note that the date of the rule to show cause is returnable for August 21, 2003.
“A copy of the rule to show cause is enclosed.” (Dkt. entry no. 4, exhibit B.)

No counsel acting on behalf of the anonymous subscribers) has entered an appearance of record nor has any response to the rule been filed by AOL, or the subscribers. Oral argument on Polito’s request was conducted on January 7, 2004, at which time only Polito’s counsel appeared.

Polito seeks to discover the identities of the AOL subscribers who utilize the screen names “Chazz49787,” “Scrantonpd41ife,” “ScrantOnpd41ife,” “PandorasBox,” “DunmoreBucks 1998,” “gwhunt316” and “MICNIC 1810.” In her supporting brief, Polito contends that the subscribers’ “privacy rights” do not bar disclosure of their identities since “[t]he communicators purposely and willfully contacted [Polito] using misleading and wrongful tactics.” (Dkt. entry no. 4, p. 6.) According to Polito, the offending subscribers waived their constitutional rights by initiating the internet contact with her. (Id. at pp. 6-7.) Polito seeks to compel disclosure of the subscribers’ identities in order to pursue legal action against them and to discontinue any further electronic communications from them. (Dkt. entry no. 1, 1117-18.)

II. DISCUSSION

(A) First Amendment Right to Anonymous Speech

Although Polito has framed the issue as one involving the subscribers’ constitutional “right of privacy,” see Commonwealth v. Proetto, 771 A.2d 823, 830-31 (Pa. Super. 2001) (defendant did not have a legitimate expectation of privacy in chat-room conversations and emails with a minor containing obscene and sexual photographs and information), aff’d, 575 Pa. 511, 837 A.2d 1163 (2003), her request more directly implicates the anonymous declarants’ free speech rights under the First Amendment to the United States Constitution. See Morris, First Amendment Issues on the Internet — The Right to Speak Anonymously, 2 Internet Law & Practice §24:29 (2003). The First Amendment restricts the ability of the government to interfere with an individual’s freedom of speech and that limitation is applicable to the states by virtue of the Fourteenth Amendment. See First National Bank v. Bellotti, 435 U.S. 765, 779-80 (1978). A court order which is issued at the request of a private party in a civil law suit constitutes state action that is subject to the constitutional limitations set forth in the First Amendment. Doe v. 2TheMart.com Inc., 140 F. Supp.2d 1088, 1091-92 (W.D. Wash. 2001) (citing New York Times Co. v Sullivan, 376 U.S. 254, 265 (1964)).

A component of the First Amendment right to freedom of speech is the right to speak with anonymity. See e.g., Watchtower Bible and Tract Society of New York Inc. v. Village of Stratton, 536 U.S. 150, 167-68 (2002) (ordinance requiring individuals to obtain permits containing their names before engaging in door-to-door political advocacy and to display the permits upon demand violated First Amendment anonymous speech rights); Buckley v. American Constitutional Law Foundation Inc., 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, statute requiring initiative petition circulators to wear identification badges); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (statute prohibiting distribution of political literature without distributor’s name and address was violative of First Amendment right to anonymous speech); Talley v. California, 362 U.S. 60, 65 (1960) (striking statute which barred distribution of handbills that did not contain the preparer’s name and address). As the Supreme Court of Pennsylvania recently observed, “[tjhere is no question that generally, the constitutional right to anonymous free speech is a right deeply rooted in public policy that goes beyond this particular litigation, and that it falls within the class of rights that are too important to be denied review.” Melvin v. Doe, 575 Pa. 264, 278, 836 A.2d 42, 50 (2003).

The cyclopean growth of the internet and the corresponding proliferation of electronic communication have created challenging legal issues under existing constitutional jurisprudence. See Strickland, Applying McIntyre v. Ohio Elections Comm’n to Anonymous Speech on the Internet and the Discovery of John Doe’s Identity, 58 Wash. & Lee L.Rev. 1537, 1582 (fall 2001) (“Although the McIntyre court recognized a respected tradition of anonymity in the advocacy of political causes, the court did not consider unlawful, anonymous speech; consequently, the McIntyre case is not fully applicable to the cybersmear context.”); Sanford & Lorenger, Teaching an Old Dog New Tricks: The First Amendment in an Online World, 28 Conn. L. Rev. 1137, 1154 (summer 1996) (“But how current laws regulating defamation and protecting core First Amendment values will be applied — or should be applied — to cyberlibel is yet unknown.”). “The near universal use of pseudonyms in email and instant messages has fostered a culture in which users are freed to say and do things they never would by offline means.” Fink, The Name Behind the Screen Name: Handling Information Requests Relating to Electronic Communications, 19 no. 11 Computer & Internet Law 1 (Nov. 2002). By using a screen name, an anonymous user “is able to create an entirely new persona for his internet communications, based on the distinction that ‘unlike real space, cyberspace reveals no self-authenticating facts about identity.’ ” O’Brien, Putting a Face to a (Screen) Name: The First Amend- merit Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 Fordham L. Rev. 2745, 2746 (May 2002). As a result, “the internet has created the ability to commit certain tortious acts such as defamation, entirely online,” Rocker Management LLC v. John Does 1-20, 2003 WL 22149380, *1 (N.D. Cal. 2003), and “[pjarties who have been injured by these acts are likely to find themselves chasing the [anonymous] tortfeasor from internet service provider (ISP) to ISP ....” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 576 (N.D. Cal. 1999).

Other jurisdictions have considered whether the constitutional right to speak anonymously extends to electronic speech via the internet. In each instance, the court has concluded that the right to communicate anonymously on the internet falls within the ambit of the First Amendment’s protections. See e.g, LaSociete Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857, *5 (Conn. Super. 2003); 2TheMart.com Inc., 140 F. Supp.2d at 1092; In re Subpoena Duces Tecum to America Online Inc., 2000 WL 1210372, *6 (Va. Cir. Ct. 2000), rev ’d on other grounds, America Online Inc. v. Anonymously Publicly Traded Co., 261 Va. 350, 542 S.E.2d 377 (2001). See also, O’Brien, 70 Fordham L. Rev. at 2745 (“anonymity is an essential tool in protecting free speech and action on the internet, even if accountability is marginally diminished.”). However, those same courts have uniformally held that the right to speak anonymously on the internet is not absolute. Immunomedics Inc. v. Doe, 342 N.J. Super. 160, 165-66, 775 A.2d 773, 776-77 (2001); 2TheMart.com Inc., 140 F. Supp.2dat 1093. Cf. SPX Corp. v. Doe, 253 F. Supp.2d 974, 981-82 (N.D. Ohio 2003) (cautioning that there is no blanket protection from defamation liability for anonymous statements made on an internet message board). Therefore, while the anonymous subscribers in this case clearly have a First Amendment right to anonymous speech on the internet, that right is subject to limitation.

(B) Standard for Disclosure

A corollary to the precept that the right to speak anonymously is not absolute is the principle that the First Amendment is not intended to protect unconditionally all forms of expression. See Roth v. United States, 354 U.S. 476, 483 (1957) (obscenity is not protected by the First Amendment); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952) (libelous statements are outside the realm of constitutionally protected speech); Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (First Amendment protections do not extend to “fighting words”). Clearly those “[pjeople who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court.” 2TheMart.com Inc., 140 F. Supp.2d at 1092. But, if an anonymous internet speaker engages in tortious or criminal conduct, “[t]he protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions.” America Online, supra at *6.

The paucity of reported decisions which have analyzed the scope of the right to anonymous speech on the internet have addressed that question in the context of anonymous posting of defamatory remarks or proprietary information on websites and message boards or in online chat rooms. Those courts have endeavored to strike an appropriate balance between the declarant’s right to speak anonymously and the victim’s right to assert a cognizable claim against a discernible defendant in order to obtain redress for an actionable wrong. See Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the First Amendment, 8 Comm. L.&Pol’y 405 (autumn 2003) (“Courts are finding that anonymous speech on the internet is worthy of protection and that unmasking a defendant’s identity requires (1) evidence of a valid case, (2) a showing of good faith by the plaintiff and (3) sufficient justification for revealing the identity of the anonymous poster.”). Their effort's in that regard have yielded a series of multi-factor tests comprised of relatively diverse criteria. See Sunkel, And the I(SP)s Have It... But How Does One Get It? Examining the Lack of Standards for Ruling on Subpoenas Seeking to Reveal the Identity of Anonymous Internet Users in Claims of Online Defamation, 81 N.C. L. Rev. 1189, 1218 (March 2003) (advocating that internet service providers follow the same standard which governs a journalist’s disclosure of anonymous sources since “[bjoth analyses require a careful balancing of the right to speak anonymously and the potential chill if this right is infringed against the right for a plaintiff to have all relevant evidence when proceeding with litigation.”); Decoste, Sender Beware: The Discoverability and Admissibility of E-Mail, 2 Vand. J.Ent. L.&Prac. 79, 80 (winter 2000) (“Faced with a dearth of authority on point, judges have frequently drawn legal analogies between electronic media and classic forms of evidence, such as paper documents.”).

In America Online, the Circuit Court of Virginia concluded that an internet service provider should be required to produce information concerning the identity of a subscriber only if (1) the pleadings or evidence satisfy the court “that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed” and (2) “the subpoenaed identity information is centrally needed to advance that claim.” America Online, 2000 WL 1210372 at *8. The America Online court reasoned that “[tjhose who suffer damages as a result of tortious or other actionable communications on the internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.” Id. at *6. Thus, it concluded that the compelling state interest in protecting residents “from the potentially severe consequences that could easily flow from actionable communications on the information superhighway significantly outweighs the limited intrusion on the First Amendment rights of any innocent subscribers.” Id. at *8.

The Washington federal court in 2TheMart.com Inc. formulated a more demanding standard which requires the court to consider “whether: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.” 2TheMart.com Inc., 140 F. Supp.2d at 1095, 1097. The New Jersey courts have likewise developed a four-part test, albeit with different elements than the America Online Inc. and 2TheMart.com. Inc. approaches. Under the New Jersey analysis, the identity of an anonymous internet speaker is discoverable only if: (1) the plaintiff has undertaken efforts to notify the anonymous speakers about the application for an order of disclosure so as to afford the anonymous declarant “a reasonable opportunity to file and serve opposition to the application”; (2) the plaintiff identifies the exact statements purportedly made by the anonymous speaker which the “plaintiff alleges constitutes actionable speech”; (3) the plaintiff “has set forth aprima facie cause of action” against the anonymous speaker which “can withstand a motion to dismiss for failure to state a claim upon which relief can be granted”; and (4) the court has balanced the declarant’s “First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous [speaker’s] identity to allow the plaintiff to properly proceed.” Dendrite International Inc. v. Doe, 342 N.J. Super. 134, 141-42, 775 A.2d 756, 760-61 (2001). Accord, Immunomedics Inc., 342 N.J. Super, at 165-66, 775 A.2d at 776-77. The Superior Court of Connecticut has adopted a standard which is a hybrid of the Virginia, Washington and New Jersey approaches and requires the party seeking discovery to establish that: (1) “there is probable cause that [plaintiff] has suffered damages as the result of the tortious acts” of the anonymous speaker; (2) plaintiff “is seeking information regarding [the] identity in good faith and not for any improper purpose”; (3) “the information is limited in scope and is directly related to the plaintiff’s cause of action”; and (4) “the plaintiff has no other adequate means of obtaining such information.” LaSociete Metro Cash & Carry France, 2003 WL 22962857 at *7.

In the only reported Pennsylvania case addressing this issue, Allegheny County Judge R. Stanton Wettick Jr. considered “whether the First Amendment protects the anonymity of the person or persons who anonymously published an allegedly defamatory statement on an internet website after the plaintiff has made a prima facie showing that the statement was false, that the statement was defamatory, and that she has sustained harm that would support a monetary award.” (footnote omitted) Melvin v. Doe, 49 D.&C.4th 449, 450 (Allegheny Cty. 2000), appeal quashed, 789 A.2d 696 (Pa. Super. 2001), vacated and remanded, 575 Pa. 264, 836 A.2d 42 (2003). In Melvin, a Superior Court judge filed a defamation action against anonymous defendants who had posted statements on a website accusing the judge of political activity and lobbying in connection with the gubernatorial appointment of a common pleas judge. In determining whether the plaintiff could discover the identity of the person(s) who published the statement, the Melvin court noted that “[i]f a plaintiff who has been harmed by allegedly defamatory anonymous speech cannot use the tools provided under state law to learn the identity of the speaker, anonymous internet speech, no matter how false and injurious, would be outside the scope of civil and criminal law for all practical purposes.” Melvin, 49 D.&C.4th at 458. Based upon his comprehensive analysis of the relevant constitutional and defamation law, Judge Wettick concluded that a plaintiff seeking such information must first satisfy the threshold requirement “that the complaint on its face set forth a valid cause of action and that the plaintiff offer testimony that will permit a jury to award damages----” Id. at 462. In addition, Judge Wettick held that the requesting party must also demonstrate that the identifying “information (1) is material, relevant and necessary, (2)... cannot be obtained by alternative means, and (3) . .. is crucial to plaintiff’s case.” Id. at 477. See also, Stiles, Everyone s a Critic: Defamation and Anonymity on the Internet, 2002 Duke L. & Tech. Rev. 4, 12 (2002) (describing the Melvin standard as a three-part test).

The anonymous defendants in Melvin appealed the denial of their motion for a protective order, but the Superior Court quashed their appeal on the grounds that it was not an appealable collateral order under Pa.R.A.P. 313. Melvin v. Doe, 789 A.2d 696, 698 (Pa. Super. 2001) (remarking that the anonymous “Appellants concede that the existing state of the law permits a plaintiff to discover the identity of anonymous critics in a case such as this even before the truth or falsity of the challenged statements has been determined.”), (footnote omitted) However, the Supreme Court later determined that the Melvin discovery ruling was appealable under the collateral order doctrine and vacated the Superior Court’s order quashing the appeal. In so holding, it remanded the matter “to the Superior Court for consideration of appellants’ constitutional question, namely, whether the First Amendment requires a public official defamation plaintiff to establish a prima facie case of actual economic harm prior to obtaining discovery of an anonymous defamation defendant’s identity.” Melvin v. Doe, 575 Pa. 264, 278, 836 A.2d 42, 50 (2003).

In light of the pendency of the Melvin appeal, Polito’s discovery request must be decided without the benefit of any Pennsylvania appellate precedent establishing a definitive standard governing a litigant’s attempt to ascertain the identity of an anonymous internet speaker. Nevertheless, we agree with Judge Wettick and the jurists from other jurisdictions that the court must strive to achieve an equitable balance between the anonymous declarant’s First Amendment right to speak anonymously and the plaintiff’s right to obtain relief for criminal or tortious conduct. Based upon the persuasive reasoning contained in the foregoing case law, we conclude that Polito is entitled to obtain the identity of the AOL subscribers in question provided that she: (1) satisfactorily states a cognizable claim under Pennsylvania law entitling her to some form of civil or criminal redress for the actionable speech of the unknown declarant(s); (2) demonstrates that the identifying information is directly related to her claim and fundamentally necessary to secure relief; (3) is seeking the requested information in good faith and not for some improper purpose such as harassing, intimidating or silencing her critics; and (4) is unable to discover the identity of the anonymous speaker(s) by alternative means. Furthermore, before the internet service provider discloses the anonymous subscribers’ identities, it must notify them in advance to afford them a reasonable opportunity to petition the court to vacate, reconsider or stay the discovery order prior to their identities being revealed. See Sobel, The Process that “John Doe ’’ is Due: Addressing the Legal Challenge to Internet Anonymity, 5 Va. J.L. & Tech. 3,20-21 (2000) (arguing that the service provider must notify the subscriber of the identity request so that [s]he may anonymously object through counsel before any identifying information is disclosed).

(1) Prima Facie Claim

Polito must first articulate a prima facie basis for imposing civil or criminal liability upon the anonymous speakers. Compare Immunomedics Inc., 342 N.J. Super, at 167, 775 A.2d at 777 (holding that corporation’s right to disclosure of internet service user’s identity outweighed user’s First Amendment right of anonymous free speech since “Immunomedics clearly established aprima facie cause of action for breach of the confidentiality agreement founded on the content of [the screen name’s] posted messages.”) and Dendrite International Inc., 342 N.J. Super, at 158-59, 775 A.2d at 772 (defamation plaintiff not entitled to discovery of anonymous user’s identity because “Dendrite failed to establish a sufficient nexus between John Doe no. 3’s statements and Dendrite’s allegations of harm.”); Rocker Management L.L.C., 2003 WL 22149380 at **2-3 (investment management firm denied access to identity of internet chatroom posters whose postings constituted non-libelous expressions of opinion rather than actionable statements of fact). Polito’s filings do not assert a particular cause of action against the anonymous subscribers. Nevertheless, our independent review of her submissions reflect that she does have a bona fide basis for imposing liability upon the anonymous declarants.

Polito has produced several of the offending e-mails and instant messages which she has received from the aforementioned screen names. Some of these electronic communications contain callous and juvenile remarks regarding her alleged weight and eating habits and her parents’ purported economic status. Others include more egregious and inflammatoiy taunting concerning mental health issues and extremely sensitive private matters. Polito has further averred in her verified petition that some communications were pornographic in nature and have continued unabated despite her repeated requests that they cease.

The unsolicited and anonymous communications in question arguably constitute harassment or stalking by communication under Pennsylvania law. Section 2709 (a) of the Crimes Code states that “[a] person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person... communicates to or about such other person any lewd, lascivious ... or obscene words” or “communicates repeatedly in an anonymous manner.” 18 Pa.C.S. §2709(a)(4), (5). The harassment statute defines the term “communicates” as conveying “a message without intent of legitimate communication or address by... written or electronic means, including . . . electronic mail, internet, ... or similar transmissions.” 18 Pa.C.S. §2709(f). Polito’s documentation indicates that the anonymous subscribers have, with the apparent intent to harass, annoy or alarm, repeatedly communicated with her in an anonymous manner and have transmitted pornographic and salacious information in contravention of 18 Pa.C.S. §2709(a)(4) and (5). See Commonwealth v. Hendrickson, 555 Pa. 277, 283-84, 724 A.2d 315, 318 (1999) (rejecting defendant’s contention that he could not be convicted of harassment by communication because his communications were anonymous and contained protected speech, and holding that the harassment by communication statute does not punish constitutionally protected speech since it requires repeated anonymous communications with the intent to harass, annoy or alarm). Additionally, the anonymous declarants’ actions may be violative of 18 Pa.C.S. §2709(a)(3) which exposes a person to criminal liability if [s]he, with intent to harass, annoy or alarm, “engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose.” See Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002) (“A course of conduct intended to harass, annoy or alarm a person can be based on words alone.”).

The anonymous subscribers may likewise be chargeable with stalking by communication under the Crimes Code. Section 2709.1(a)(2), which was formerly found at 18 Pa.C.S. §5504(a.l) (repealed), provides that a person is guilty of stalking by communication if [s]he “repeatedly communicates to another person under circumstances which demonstrate or communicate ... an intent... to cause substantial emotional distress to such other person.” 18 Pa.C.S. §2709.1(a)(2). The stalking by communication statute similarly defines the term “communicates” as “convey [ing] a message without intent of legitimate communication or address by... written or electronic means, including... electronic mail, internet... or similar transmission.” 18 Pa.C.S. §2709.1(f). Inasmuch as Polito’s materials document repeated communications which manifest an intent to cause substantial emotional distress, Polito has stated a prima facie violation of 18 Pa.C.S. §2709.1(a)(2). See Commonwealth v. D’Collanfield, 805 A.2d 1244, 1248-49 (Pa. Super. 2002) (finding that nine e-mail communications of a harassing nature were sufficient to establish intent to cause substantial emotional distress under 18Pa.C.S. §5504(a.l) (repealed) as “intent may be inferred from the words or actions of the defendant in light of all attendant circumstances.”).

From a civil law standpoint, Polito may have a viable claim for intentional infliction of emotional distress (IIED). Although the Supreme Court of Pennsylvania has never expressly recognized a cause of action for IIED, it has cited section 46 of the Restatement (Second) of Torts (1965) “as setting forth the minimum elements necessary to sustain such a cause of action.” Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 181, 754 A.2d 650, 652 (2000). To prevail on an IIED claim, a plaintiff must prove that the defendant intentionally or recklessly caused severe emotional distress by its extreme and outrageous conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (defendant, after striking and killing plaintiff’s son with an automobile, and after failing to notify authorities or seek medical assistance, buried dead body in a field where it was discovered two months later and returned to the parents); 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 and such fraud led to plaintiff being indicted); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (defendant released to the media false information that plaintiff was suffering from a fatal disease when the defendant physician knew that such information was untrue). For a tortfeasor’s actions to warrant a claim for IIED, “the conduct must be 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.” Hoy v. Angelone, 554 Pa. 134, 151, 720 A.2d 745, 754 (1998); Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997).

Comment (d) to section 46 addresses an IIED claim predicated upon offensive speech and states:

“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime, plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt.” Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 191, 527 A.2d 988, 991-92 (1987) (quoting Restatement (Second) of Torts §46, comment d). See also, Miller v. Peraino, 426 Pa. Super. 189, 195-96, 626 A.2d 637, 641 (1993) (veterinarian’s statements that dog owner was stupid and that dead dog was fat and ugly like dog owner’s wife, and inquiry whether dog owners had made a rug out of dead dog, were not sufficiently atrocious and outrageous to support a claim for IIED). However, comment (f) to section 46 further provides that:
“The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.” Dicks v. Information Technologists Inc., 1996 WL 528890, *6 (E.D. Pa. 1996) (quoting Restatement (Second) of Torts §46, comment (f)). Therefore, if the defendant knows that the plaintiff is unusually susceptible or vulnerable to emotional distress due to a mental condition or peculiar sensitivity, the defendant’s actions may become sufficiently outrageous if [s]he engages in certain conduct despite such knowledge. See McClease v. R.R. Donnelley & Sons Co., 226 F. Supp.2d 695, 703 (E.D. Pa. 2002) (discharged African-American employee stated claim for IIED based upon repeated racial harassment and epithets); Syslo v. Moses Taylor Hospital, 102 Lacka. Jur. 210, 214 (2000) (verbally berating a patient while she is recuperating from negligently performed surgery by addressing her as an “alcoholic” and a “whore” could constitute extreme and outrageous conduct so as to permit recovery for IIED); Naughton v. Mercy Hospital, 4 D.&C.4th 628, 640 (Lacka. Cty. 1989) (“Still another basis on which outrageous conduct can be found from the defendant’s behavior is the latter’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress from the particular conduct.”).

The anonymous subscribers’ comments about Polito’s parents, habitus and lifestyle are akin to the inconsiderate and unkind remarks that cannot form a basis for IIED liability under comment (d) of section 46. See Miller, supra. However, the more appalling statements relating to her fragile mental health and other sensitive issues evince the declarant’s knowledge of Polito’s peculiar susceptibility to emotional distress as a result of any ridicule with regard to those matters. Thus, the latter communications support a conceivable claim for IIED under comment (f) to section 46. See Davis, Liability for Infliction of Emotional Distress Peculiar Susceptibility to Distress, 1 Summ. Pa. Jur.2d Torts §10:25 (2003).

Consequently, prima facie grounds exist for imposing civil or criminal liability upon the pseudonymous speakers in this case. As such, Polito has satisfied the first element of the test for disclosure of the anonymous subscribers’ identities.

(2) Relevance and Necessity

Second, the identifying information must be relevant to Polito’s claim(s) and necessary for her to proceed forward with those claims. By way of illustration, the corporate defendant in the shareholder derivative action in 2TheMart.com Inc. sought to obtain the identities of anonymous posters of internet messages in an attempt to support its affirmative defense that the posted messages, rather than corporate fraud, caused a decline in the value of the corporation’s stock. While the 2TheMart. com court agreed that the posted messages were relevant to that affirmative defense, it denied the discovery request on the basis that specific identifying information about the posters was not necessary for the corporation to successfully assert the affirmative defense. 2TheMart.com Inc., 140 F. Supp.2d at 1096-97 (quashing subpoena and holding that corporation had “failed to demonstrate that the identity of these internet users is directly and materially relevant to a core defense in the underlying securities litigation.”).

In contrast, Polito cannot attempt to secure civil or criminal redress without first ascertaining the identities of the persons to be sued or prosecuted. Simply stated, in order for a civil or criminal action to be commenced and initial process to be served, Polito must determine the identities of the culpable subscribers. Thus, the identifying information is both relevant and necessary for Polito to obtain relief.

(3) Good Faith Purpose

The record is devoid of any bad faith or ulterior motives on Polito’s behalf in seeking the identifying information from AOL. None of the communications in question address political or governmental affairs or other issues of public concern, nor is Polito attempting to silence legitimate critics. Cf. Talley, 362 U.S. at 64-65 (noting that anonymous speech served as a powerful instrument for political debate in early American history as evidenced by the Federalist Papers which urged ratification of the Constitution and were anonymously authored by Madison, Hamilton and Jay under the pseudonym “Publius”). The sole puipose of these offensive communications has been to harass and abuse Polito. Since Polito’s primary motivation is to obtain relief and terminate the unsolicited revilement, she is seeking the identifying information in good faith.

(4) Unavailability by Other Means

The Electronic Communication Privacy Act (ECPA), 18 U.S.C. §2701 et seq., and section 551(c) of the Cable Communications Policy Act, 47 U.S.C. §551(c), limit the ability of AOL Time Warner Inc. to release identifying information about its subscribers. See LaSociete Metro Cash & Carry France, 2003 WL 22962857 at *1 (47 U.S.C. §551(c)(2)(B) permits a cable operator such as Time Warner to release “personally identifiable information concerning any subscriber if it is made pursuant to a court order authorizing such disclosure [and] if the subscriber is notified of such order by the person to whom the order is directed.”); Jessup-Morgan, 20 F. Supp.2d at 1108 (AOL’s disclosure of subscriber’s identity in response to properly executed subpoena did not violate 18 U.S.C. §2703(c)(l)(A)). For that reason, AOL will not release the requested information to Polito absent a valid subpoena, search warrant or court order. (Dkt. entry no. 4, exhibit B.) Polito can only secure the requested information from AOL and she has demonstrated sufficient need for a discovery order.

III. CONCLUSION

Accordingly, Polito has satisfied the criteria entitling her to an order compelling AOL to divulge the identities of the anonymous subscribers for the seven screen names at issue. We have carefully balanced the subscribers’ right to speak anonymously and Polito’s right to protect her interests and secure relief, and agree with the New Jersey court that “[although anonymous speech on the internet is protected, there must be an avenue for redress for those who are wronged.” Immunomedics, 342 N.J. Super, at 167, 775 A.2d at 111. Internet users who choose to violate the law by transmitting harassing or defamatory communications should not be entitled to conceal their identity and avoid punishment or liability for their actionable conduct. See Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 887 (2000) (reasoning that the identification of anonymous declarants who abuse internet discourse will send “a powerful message” to all users that they “should not rely on anonymity to shield them from being sued if they post abusive and untrue messages,” and will thereby improve the “quality of speech” on the internet). An appropriate order will follow.

ORDER

And now, January 28,2004, upon consideration of the “petition for release of information” presented by plaintiff Michele Polito, and the exhibits and legal authority submitted in support of her petition, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The “petition for release of information” filed by the plaintiff, Michele Polito, is granted;

(2) Sixty days following the filing of this memorandum and order, AOL Time Warner Inc. shall provide the plaintiff with the identities of its subscribers for the screen names “Chazz49787,” “Scrantonpd41ife,” “ScrantOnpd41ife,” “PandorasBox.” “DunmoreBucks 1998,” “gwhunt316” and “MICNIC1810”; and

(3) Upon its receipt of this memorandum and order, AOL Time Warner Inc. shall immediately forward a copy of this memorandum and order to its subscribers for the screen names “Chazz49787,” “Scrantonpd41ife,” “ScrantOnpd41ife,” “PandorasBox,” “DunmoreBucks 1998,” “gwhunt316” and “MICNIC1810” in order to afford them a reasonable opportunity to seek to vacate, reconsider or stay the order prior to their identities being disclosed by AOL Time Warner Inc.

      . The Circuit Court permitted the plaintiff to proceed anonymously under the pseudonym of “Anonymously Publicly Traded Company,” but, on appeal, the Supreme Court of Virginia reversed and held that the plaintiff corporation should not have been allowed to proceed anonymously in seeking the subpoena duces tecum. See America Online Inc. v. Anonymously Publicly Traded Company, 261 Va. 350, 364-65, 542 S.E.2d 377, 385 (2001).

      . In the decisional precedent discussed supra, the party seeking discovery commenced an action against anonymous defendants and thereafter served a subpoena duces tecum upon the non-party ISP to produce information relative to the unknown subscriber. See e.g., Rocker Management L.L.C., supra; Immunomedics Inc., supra; Dendrite International Inc., supra; Melvin, supra. However, Polito has instituted a direct action against AOL to compel disclosure of the anonymous subscribers’ identities. AOL has not challenged the procedural propriety of Polito’s lawsuit or her request for an order compelling disclosure. See America Online, 2000 WL 1210372 at *1 n.2 (procedural defect deemed waived where AOL failed to dispute the propriety of the procedure employed by the requesting party).

      . The harassment by communication provisions of 18 Pa.C.S. §2709(a)(4) and (5) were formerly found at 18 Pa.C.S. §5504(a)(l) and (2) which was repealed by the Act of December 9, 2002, P.L. 1759,no.218, section 4, and recodified at 18Pa.C.S. §2709(a)(4) and (5).

      . The AOL Member Agreement and Rules of the Road prohibit an account holder from “using AOL services to ... harass, threaten, embarrass, or cause distress, unwanted attention or discomfort upon another member or user of AOL or other person or entity” or to “transmit any unlawful, harmful, . . . abusive, harassing, . . . vulgar, obscene, hateful, ... or otherwise objectionable content.” Jessup-Morgan v. America Online Inc., 20 F. Supp.2d 1105, 1108 (E.D. Mich. 1998).


source: Caselaw Access Project

author: SOLOMON, J,

license: Public Domain

text:
    Marshall v. Giachetti

      C.P. of Fayette County,
    no. 1776 of 2004, G.D.

      Charles C. Gentile and Valerie M. Schwab, for plaintiffs.

      Anthony S. Dedola Jr., for defendant.
    March 1, 2006 —
   SOLOMON, J,

This court was asked to consider a motion of the defendant, Jo Ann Giachetti, seeking summary judgment. The motion alleged that no genuine issue of material fact existed and that, therefore, the defendant was entitled to judgment as a matter of law. Upon the record, this court granted the motion for summary judgment and the plaintiffs, Linda Marshall and William Marshall, filed an appeal to that order. This opinion is in support of that order of December 12, 2005.

BACKGROUND

The plaintiffs’ complaint arose from a sale of real estate that occurred on April 16, 2004. On that date, the plaintiffs executed a deed which conveyed property, located at 21 Elm Street, Uniontown, Fayette County, Pennsylvania, to the defendant. The consideration stated in the deed was $ 1. In this complaint, the plaintiffs contend that, in exchange for this conveyance, the defendant orally agreed to care for the plaintiff, Linda Marshall, throughout her recovery from cancer. The plaintiffs then averred that the defendant breached this promise of care and, as a result, the conveyance must be set aside for failure of consideration. The defendant, in her answer, denied that an oral agreement existed and, although she did provide care for the plaintiff, Linda Marshall, since she was her sister, such care was not consideration for the conveyance of real estate. In her new matter, the defendant raised the Defeasance Act and the Statute of Frauds. She then moved for summary judgment.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Commonwealth of Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). Further, summary judgment may only be granted when “the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits . . . demonstrate that there exists no genuine issue of fact” and that the moving party is entitled to judgment as a matter of law. Janson v. Cozen & O’Connor, 450 Pa. Super. 4615, 423, 676 A.2d 242, 246 (1996).

Under Rule 1035.2(2), if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action. Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). The non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party, and may not rest upon the averments contained in its pleadings. Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977). The non-moving party must also demonstrate that there is agenuine issue for trial. Id., Pa.R.C.P. 1035.2(2). If the non-moving party fails to satisfy this burden, a genuine issue of material fact does not exist and the moving party is entitled to judgment as a matter of law. Tenos v. State Farm Insurance Co., 716 A.2d 626 (Pa. Super. 1998).

In determining whether summary judgment should be granted, the court must examine the record, viewing any inferences in the light most favorable to the non-moving party, and resolving any doubt against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). With these principles to guide us, we considered the motion of the defendant for summary judgment.

The defendant contended that the deed is clear on its face and that evidence regarding an oral agreement is barred by the Statute of Frauds. On the other hand, the plaintiffs claimed that, in exchange for the plaintiffs conveying an interest in real estate to the defendant, the defendant orally promised to provide care to the plaintiff, Linda Marshall, during her cancer treatment. Further, the plaintiffs averred that the defendant breached this agreement by not providing such support. As a result, the plaintiffs contended that the agreement failed for lack of consideration and the conveyance must be set aside.

Contracts for the sale of land aré required by the Statute of Frauds to be in writing. 33 P.S. §1. The writing offered must set forth the essential terms of the contract. Long v. Brown, 399 Pa. Super. 312, 582 A.2d 359 (1990). Where there is a signed and delivered deed, the Statute of Frauds is satisfied. Id. Further, oral land contracts will not be enforced unless the plaintiffs show sufficient “part performance,” or the defendant admits in her pleadings that such an agreement was reached. Lehner v. Montgomery, 180 Pa. Super. 493, 119 A.2d 626 (1956).

The Statute of Frauds seeks to prevent fraud and perjury by eliminating one-sided verbal understandings regarding a transfer of an interest in land. Kurland v. Stolker, 516 Pa. 587, 533 A.2d 1370 (1987). Thus, oral contracts “cannot be inferred . .. from the declarations of one of the parties. To hold otherwise is tantamount to setting aside the statute of frauds.” Id., 516 Pa. at 596, 533 A.2d at 1375 (1987).

In this case, the plaintiffs signed a valid deed on April 16, 2004, transferring their interest in the subject property to the defendant. The consideration for this transfer, as stated in the deed, was $1. This deed was duly recorded by the defendant. Contrary to the deed, the plaintiffs alleged the existence of an oral agreement. In their complaint, the plaintiffs alleged that the “defendant promised plaintiff Linda L. Marshall that in exchange for conveying the subject premises to her, defendant would care for and tend to all of plaintiff Linda L. Marshall’s personal needs throughout her recovery.” Plaintiffs’ complaint, paragraph 8. However, the plaintiffs did not reduce this alleged agreement to writing. Other than the bald allegations in their complaint, the plaintiffs have offered no evidence of an oral agreement.

We would note that at the time of oral argument, and in the briefs submitted to this court relating to this motion for summary judgment, reference was made to the deposition testimony of both the plaintiff and the defendant. Therein, the plaintiff reiterated the existence of an oral agreement while the defendant specifically denied that any oral contract between the parties was made. However, these depositions were not made part of the record as of the date of this court’s order of December 12, 2005, granting summary judgment, and were not considered by this court in rendering that decision.

We would further note that the defendant attached to her brief in support of her motion for summary judgment, the sworn affidavit of James Higinbotham Jr., the attorney who prepared the deed. In that affidavit, he stated that he was not instructed to, nor did he prepare a separate written agreement containing conditions or restrictions for the conveyance of the real estate described in the deed. However, this affidavit was also not made part of the record as of this court’s order, and was not considered by this court.

Here, as required by the Statute of Frauds, the contract for the sale of land was in writing — a signed, delivered, and recorded deed. Since the Statute of Frauds seeks to prevent fraud and perjury by eliminating one-sided verbal understandings regarding a transfer of an interest in land, we could not infer a separate oral agreement upon the allegations of one of the parties. Rather, the terms of the valid deed must prevail. The record in this case consisted of the complaint and answer and new matter. The plaintiffs did not reply to the new matter. From the record, it is clear that the plaintiffs rested upon the averments contained in their complaint. However, the law is clear that the non-moving party may not rest upon the averments contained in their pleadings. Amabile v. Auto Kleen Car Wash, supra. Thus, no genuine issue of material fact existed as to the plaintiffs’ claim of failure of consideration and that, therefore, the defendant was entitled to judgment as a matter of law.


author: BERNSTEIN, J.,

text:
    Braun v. Wal-Mart Stores Inc.

      Keneth J. Ignozzi, Michael D. Donovan said David A. Searles, for plaintiffs.

      Morton F.Daller, Martin J. Durso, Ftilary Ellen Cohen, Christina D. Saler, Brian P Flaherty, Andrew A. Chirls, Matthew A. White and Timothy J. Lynch, for defendant.

      December 27, 2005
   BERNSTEIN, J.,

Plaintiffs individually, and on behalf of similarly situated employees and former employees of defendant, bring this lawsuit for damages resulting from alleged missed rest and meal breaks and mandated “off-the-clock” work in defendant’s Pennsylvania stores. Plaintiffs bring contractual claims, claims for unjust enrichment and, in the Hummel case, statutory claims pursuant to the Pennsylvania Minimum Wage Act, 43 P.S. 333.101 et seq. and the Pennsylvania Wage Payment and Collection Act, 43 P.S. 260.1 et seq. The sole issue presently before this court is whether the prerequisites for certification are satisfied. The purpose behind class action lawsuits is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709;
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class....
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that decisions in favor of maintaining a class action should be liberally made.” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party needs only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insur ance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), allo. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “The weight and credibility of the evidence are not factors at this stage.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, the term “ ‘prima facie right to custody’ means only that the party has a colorable claim to custody ofthe child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Commonwealth, Pennsylvania Human Rights Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebut-table presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debbs v. Chrysler Corp., 810 A.2d at 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 Explanatory comment to Pa.R.C.P. 1707. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions and judicial notice.” Janicik, 305 Pa. Super, at 128, 451 A.2d at 454-55. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. The burden of persuasion and the risk of non-persuasion, however, rest with the plaintiff.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corporation, 419 Pa. Super. 403, 410, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super, at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case ... any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases any error should be committed in favor of allowing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super, at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

I. NUMEROSITY

To be eligible for certification, appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should . . . plaintiffs sue individually.” Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pa., 293 Pa. Super. 219, 224, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pa., 291 Pa. Super. 40, 50 n.5, 435 A.2d 208, 214 n.5 (1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super, at 132, 451 A.2d at 456. These actions potentially involve 150,000 class member employees and former employees of defendant’s 130 stores in Pennsylvania. Clearly, numerosity has been demonstrated.

II. COMMONALITY

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra, 305 Pa. Super, at 133,451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beechnut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra, 305 Pa. Super, at 133, 451 A.2d at 457.

“While the existence of individual questions is not necessarily fatal, it is essential that there be predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 500 A.2d 1137, 1142 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). Where there exists intervening and possibly superseding causes of damage, however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231 n.5, 530 A.2d 499, 504 n.5 (1987).

Related to this requirement for certification is whether trial on a class basis is a fair and efficient method of adjudication under the criteria set forth in Rule 1708. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. Accordingly, the analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra, 305 Pa. Super, at 142, 451 A.2d at 461.

Plaintiff proposes to certify a class for trial as follows: “All current and former hourly employees of Wal-Mart in the Commonwealth of Pennsylvania from March 19, 1998 to the present.” In support of their claim, plaintiffs present expert analysis of defendant’s own computer records of employee time and activity. Plaintiff relies upon the expert opinion of Dr. L. Scott Baggett, a highly qualified consulting statistician, the opinion of Martin M. Shapiro, a highly qualified psychologist and researcher at Emory University, with significant experience in the application of the statistical quantification of measurement operations, each of whose reports are of record and the “Shipley Audit,” an analysis performed for management purposes by defendant. All expert analyses relied upon defendant’s own computer records maintained in the regular course of their business for business purposes, namely to determine the pay earned by hourly employees. These computer records are mandated by law, including the Pennsylvania Minimum Wage Act of 1968 which states: “Every employer of employees shall keep a true and accurate record of the hours worked by each employee and the wages paid to each....”

The defendant’s business record, the “Time Clock Archive Report,” records the “total hours worked” and “total breaks” for every employee for every shift worked. The defendant’s own records, the “Time Clock Punch Exception Report,” lists missed or inadequate breaks. These reports have been utilized and relied upon by defendant management for payroll and evaluation purposes. The same reports were relied upon and analyzed by plaintiffs ’ experts.

Defendant claims to have an unalterable written policy of providing all employees, and therefore all putative class members, with all mandated rest and meal breaks. This policy, applicable to all employees, incorporated in “PD-07,” requires that all “work associates” receive one paid rest break of 15 minutes during any three-hour work period, and two paid 15 minute rest breaks and one unpaid meal break of 30 minutes over a six-hour work period. Defendant further claims to have an unalterable written policy incorporated into “PD-43” that no associate “should perform work for the company without compensation” and that no supervisor may request or require any associate to work without compensation. The defendant is mandated by law in Pennsylvania to advise every employee of the wage payments and “fringe benefits” to which they are entitled.

Dr. Baggett examined management reports from March 1998 to December 2000 for 12 stores in Pennsylvania. Based upon an analysis of 23,919 individual shifts covering 2,250 individual associates, Dr. Baggett concluded that 17,556 or 64.4 percent of the shifts contained deficiencies in duration of rest and meal breaks, and 10,889 or 40 percent of the workers did not receive the appropriate number of breaks. As to plaintiff Hummel herself, Dr. Baggett found 35.8 percent of her breaks were deficient in duration and 28.3 percent deficient in number.

These findings for Pennsylvania stores by plaintiff’s retained expert are consistent with defendant’s internal audit performed in June 2000. After studying the cornputer “exception reports” in 127 stores nationally, including five stores in Pennsylvania, the defendants Internal Audit Division found “Stores were not in compliance with company and state regulations concerning the allotment of breaks and meals, as 76,472 exceptions were noted in 127 stores reviewed for a one-week period.” Seventy-five percent of these missed breaks concerned rest breaks; 25 percent concerned missed meal breaks. The defendant’s own internal management analysis revealed that an average of 2 breaks per associate per week were either missed or shorted at every store. The internal audit’s findings concerning the Pennsylvania stores actually revealed greater deficiencies than Dr. Baggett’s conclusions.

Other computer records were also analyzed by plaintiff’s experts. Defendant databases record time associates spent on other electronic devices such as cash register and computer-based learning terminals. Plaintiff’s expert Dr. Shapiro compared this database with time records and determined that, while associates were recorded as taking breaks, they were also recorded as being engaged in employment-related activities. Clearly, should the jury conclude that this evidence meets plaintiff’s burden of proof at trial and demonstrates to a preponderance of the evidence systemic violations of contractually required unalterable corporate policy as to breaks and payment for time worked, plaintiff will have proven its statutory claims, its contractual violations and that the defendant has been “unjustly enriched.” Clearly, common questions as to the failure to provide rest and meal breaks, and whether the class members have been actually compensated for all time worked, predominate.

While plaintiff offered the testimony of employees in support of these expert conclusions, the court relies primarily on the expert analysis of computer records to conclude that the systemic loss of contractual break and meal time in Pennsylvania stores has been prima facie demonstrated. It thus becomes a factual determination as to why these statistically significant demonstrated discrepancies between the recorded time records and unalterable company policy exists. The defendant has offered deposition testimony to explain reasons for the inaccuracy of the time records. Since credibility may not be the focus of a certification decision, the court merely notes that the discrepancies in testimony will undoubtedly be an issue for jury determination at trial.

The class action certification rules explicitly permit the use of deposition testimony. Common practice in class action certification proceedings discourages or even forecloses live witness or videotape deposition testimony, specifically because credibility is generally not an issue. Every jury, however, which must evaluate credibility is instructed that they should observe how each witness acts, speaks and looks while testifying, because observation is so important to their final evaluation. Our Supreme Court even mandates that the court specifically caution jurors not to allow note taking to distract them from the important task of observing each witness. Although this court was offered a few carefully selected snippets of videotaped deposition testimony, it is certainly improper to decide credibility on this basis. Neither would it be proper to deny certification because this court concluded that the plaintiffs have not proven their case to the satisfaction of the court sitting as if conducting a non-jury trial. One need only recall the symbolic placement of the middle finger of captured crew members of the US S Pueblo in photographs displayed by their North Korean captors, along with their “confessions,” to recognize the need to observe all the testimony of current employees testifying under their employer’s watchful eye that they voluntarily worked off-the-clock without pay because of their devotion to the ideal of corporate profitability through customer satisfaction.

It is unusual in the extreme for the defendant, who relies on their records for business purposes, to contend that although required by law to be created and maintained, their records are so unreliable that they cannot constitute prima facie proof of their contents. Since 1939, the Business Records Act, 42 Pa.C.S. 6108, allowed business records into evidence without any actual proof of their accuracy because the law presumed the regularity and accuracy of records maintained in the regular course of business. The purpose of the legislatively enacted statute is the same as that of the Supreme Court-adopted Rule 803(6) of the Pennsylvania Rules of Evidence. Records created and maintained for independent business purposes are not self-serving or created for litigation. As stated by the Supreme Court in Williams v. McClain, 513 Pa. 300, 305, 520 A.2d 1374, 1376 (1987): “[t]he basic justification for the business record exception to the hearsay rule is that the purpose of keeping business records builds in a reliability which obviates the need for cross-examination.” Because important business decisions routinely depend upon the accuracy of regularly kept records, they are admissible and constitute prima facie proof of their contents, whether offered by their creator or an antagonist. Without question, a party opponent’s business records may be offered against their creator, are prima facie proof of their contents and may even constitute opposing party admissions against pecuniary interest. The presumption of the reliability of business records which are created and maintained by affirmative requirement of law and are utilized for payroll purposes is beyond question.

It will be plaintiff’s burden at trial to demonstrate culpability. The computer records demonstrate the existence of common questions of law and fact, and that common issues predominate. Indeed, for those class members for whom computer records exist, the computation of damages, should a liability verdict be obtained, can be easily determined by claim presentation of the computer results.

The plaintiffs have proven the requirement of commonality.

III. TYPICALITY

The claimants must also meet the requirement of typicality. The third step in the certification test requires the plaintiff to show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this “requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that the pursuit of their interests will advance those of the proposed class members.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

Plaintiffs were employed in Pennsylvania stores for many years. Both claim that they were forced to work off-the-clock during missed break and lunch periods. Plaintiff Hummel’s claim is supported by an analysis of defendant computer records which demonstrated that during a two-week period in March 1999, 19 out of 53 shifts worked were deficient in duration of breaks and 15 of 53 shifts were deficient in the number of rest and meal breaks. Plaintiff Braun’s individual computer record also demonstrates missed breaks.

Defendant contends that these “disgruntled” employees are not representative. The computer records belie this contention; the analysis reveals significant break time lost. Regardless of how disgruntled they or other employees who believe they have been forced to work off-the-clock without pay may be, their interests are sufficiently aligned with the interests of the entire class.

The court finds that the claim presented satisfies the typicality requirement of Rule 1702(3).

IV. ADEQUACY OF REPRESENTATION

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). In determining whether the representative parties will fairly and adequately represent the interests at the class, the court shall consider the following:

“(1) whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) whether the representative parties have or can acquire financial resources to assure that the interests of the class will not be harmed.” Rule 1709.

“Until the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458. “Courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458.

The court is familiar with the class action work of local counsel, including the successful class action trial to verdict and personally knows that the firm consistently performs at the highest level of professional competence and professionalism. Pro hac vice counsel has also demonstrated tenacity, diligence and competence in representing this class. The adequacy of representation requirement of Rule 1702(4) has been met. The court has considered defendant’s claims of conflict among class members and finds them deficient to defeat the demonstrated adequacy of representation by counsel and the named class representatives.

V. FAIR AND EFFICIENT METHOD OF ADJUDICATION

The final criteria under Pa.R.C.R 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. Since the court has determined that a class satisfies the other requirements ofPa.R.C.P. 1702, and plaintiffs do not request equitable relief, it is not necessary to consider subdivision (b) of Rule 1708.

1. Predominance of Common Questions of Law and Fact

The most important requirement in determining whether a class should be certified under Rules 1702(5) and 1708(a)(1) is whether common questions of law and fact predominate over any question affecting only individual members. In addition to demonstrating the existence of common questions of law and fact, plaintiffs must also establish that common issues predominate. The analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra, 305 Pa. Super, at 141, 451 A.2d at 461. The court adopts and incorporates its analysis of commonality and concludes that the requirement of predominance has been satisfied. The difficulties plaintiff class may encounter in proving liability for the time period after specific work activity computer record-keeping was ceased by the defendant’s decision, does not change the common nature of the allegations to be proven. Plaintiffs may be able to demonstrate consistency in corporate conduct despite a change in corporate record-keeping. Plaintiff may fail in its proofs for the time after detailed record-keeping ceased. Nonetheless, common issues of triable fact and law predominate. The eventual verdict need not be predicted before certification is ruled upon.

2. The Existence of Serious Management Difficulties

Under Pa.R.C.P. 1708(2), a court must also consider the size of the class and the difficulties likely to be encountered in the management of the action as a class action. While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight. Problems of administration alone ordinarily should not justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972). Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. Id. (citing Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117, 131 (1974)).

Defendants argue that class treatment would not be fair and reasonable since there are individual fact issues which render class treatment unmanageable. Flowever, many of the claims can be easily litigated to both liability and damage verdicts without any manageability issues. Plaintiffs contend that at least until defendant’s record-keeping policies were changed, their own business records prove both corporate liability and the exact calculation of damage sustained by each class member. The defendant’s contention that their records cannot be relied upon and that individualized explanations make these records questionable as proof of liability or damages are questions of fact for jury determination. If either defense is accepted by the jury at trial, plaintiffs will simply fail to meet their burden of proof. The court rejects defendant’s contention that thousands of employees will be needed to testify that the time records are inaccurate and do not explain their individual reasons for inadequate breaks and off-the-clock work without pay. If the defense contentions are true, the inaccuracy of mandated records on which the company relied for years can surely be more convincingly demonstrated than through rote employee testimonials of company loyalty. The court knows that such testimony is routinely rejected by jurors and is confident that experienced defense counsel would never present a case to a jury in such an amateur and ultimately dysfunctional manner.

Should the jury determine that these records do demonstrate liability and have accurately recorded missed breaks, meals and other off-the-clock work, then damages for each class member becomes a ministerial calculation. Specifically tailored jury verdict interrogatories or bifurcation may be required for the time period after the defendant changed its recording policies, but the need for such distinctions in verdict interrogatories or even bifurcation are certainly manageable trial issues. The court is confident that such individualized issues of computation or payment of damages that may eventually exist, should plaintiff prevail on their overriding common issues, can be justly resolved by any one or combination of a number of common management tools. Whatever management problems remain, this court is confident that the ingenuity and aid of counsel can justly resolve in accord with this certification decision. Janicik, 305 Pa. Super, at 142, 451 A.2d at 462.

3. Potential for Inconsistent Adjudications

Pennsylvania Rule 1708(a)(3) also requires a court to evaluate whether the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class. In considering the separate effect of actions, the precedential effect of a decision is to be considered, as well as the parties’ circumstances and respective ability to pursue separate actions. Janicik, 305 Pa. Super, at 143, 415 A.2d at 462.

A substantial risk of inconsistent adjudications exists if individual actions are pursued in these cases. As a certified class, one case will determine liability, a multiplicity of litigation is rendered unnecessary and the potential for inconsistent adjudications is avoided.

4. Extent and Nature of Any Preexisting Litigation and the Appropriateness of This Forum

Under Pa.R.C.P 1708(a)(4) and (a)(5), a court should consider the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues. Although preexisting litigation raising the same issues has been filed in many states, the court is aware of no conflicting litigation concerning the Pennsylvania plaintiffs in the certified class. This court finds that this forum is appropriate to litigate the claims presented. The Court of Common Pleas of Philadelphia County Complex Litigation Center has achieved a well-earned national reputation for excellence in the expeditious and just case management and trial of complex mass tort and class action matters. This is an appropriate forum for this class action concerning Pennsylvania stores and employees.

5. The Separate Claims of the Individual Plaintiffs Are Insufficient in Amount To Support Separate Claims or Their Likely Recovery

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate amounts. Pa.R.C.P. 1708(a)(6). Alternatively, the rules ask the court to analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action. Pa.R.C.P. 1708(a)(7). This criteria is rarely used to disqualify an otherwise valid class action claim. See Kelly v. County of Allegheny, 519 Pa. 213, 215, 546 A.2d 608, 609 (1988). (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.)

Although the amounts vary and may be small, if any sums are owing to class members, at least as to those claims proven by defendant’s own records, administration is simple and straightforward. For most, if not all class members, the amounts involved in comparison to the substantial litigation necessary for recovery effectively means that no individual litigation could ever be pursued.

This criteria is met.

6. Appropriateness of Equitable or Declaratory Relief

Since plaintiffs do not seek equitable relief, it is not necessary to consider the criteria set forth in Pa.R.C.P. 1708(b).

Having weighed the Rule 1702 requirements, this court finds that a class action is a fair and efficient method for adjudicating plaintiff’s claim and an appropriate order is issued herewith.

CONCLUSIONS OF LAW

(1) The class is sufficiently numerous that joinder of all its members would be impracticable.

(2) There are questions of law and fact common to the class.

(3) The claims of plaintiff are typical of the class claims.

(4) Plaintiffs will fairly and adequately assert and protect the interests of the class.

(5) Allowing class claims provides a fair and efficient method for adjudication of the criteria set forth in Pa.R.C.P. 1708.

CONCLUSION

For these reasons, plaintiffs’ motion for class certification is granted. Plaintiffs’ counsels are appointed as counsel for the class. The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within 30 days from the date of this order. Discovery for trial shall commence. A new case management order shall be issued.

A contemporaneous order consistent with this opinion is filed.

ORDER

And now, December 27, 2005, it is hereby ordered and decreed that plaintiffs’ motion for class certification is granted. Plaintiffs’ counsels are appointed as counsel for the class. The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within 30 days from the date of this order. Discovery for trial shall commence. A new case management order shall be issued.

      . Even though the defendant relied upon these records, which are mandated by law to determine associate’s pay, defendant claims that their employment records are inaccurate and may not be relied upon. While this defense may be persuasive at trial, for purposes of this preliminary procedural certification decision, the court accepts these business records as prima facie accurate.

      . 43 P.S. 260.4, actual notification is not required since posting is suificient for compliance.

      . Although plaintiff continues to argue in memoranda that the reports of experts John Zogby and Dr. Thompson demonstrate that a random sampling survey of class members can “provide a valid means to determine the uncompensated off-the-clock time of the class of employees,” this contention is nonsense. These expert opinions, which were officially stricken in the Hummel matter pursuant to the order granting defendant’s Frye motion, have been rejected as providing no assistance whatsoever in the Braun matter. These expert “opinions” about the reliability of unsworn and untested recollections expressed anonymously by former employees in a telephone interview years after the event provide no methodology whatsoever, no analysis whatsoever and no reason whatsoever to believe that these self-serving, self-interested hearsay results will in any way comport with historical reality, or even be arguably admissible in evidence under Pennsylvania law.

      . The court notes that the statutory requirements cannot be waived by agreement. See 43 P.S. 260.7 and 43 P.S. 333.113.

      . The court notes that while litigation in many states was pending in February 2001, defendant decided that rest break data should no longer be maintained by computer record.