author: TERESHKO, J.,

text:
    Howard v. A.C. Chesterton Co.

      Robert Paul, for plaintiffs.

      M. Douglas Eisler, John Bateman, Peter Neeson, Jennifer Stern, and Catherine Jasons, for defendants.
    March 23, 2011
   TERESHKO, J.,

Plaintiffs, Margaret Howard and Robert Howard (“plaintiffs”), executors of the estate of John C. Ravert (“decedent”), appeal this court’s orders granting summary judgment to the following defendants: A.W. Chesterton, Co. (“Chesterton”), ACE Hardware Corp. (“ACE”), Monsey Products Corp. (“Monsey”), Pécora Corp. (“Pécora”), and Union Carbide Corp. (“Union Carbide”) (collectively “defendants”), and dismissing with prejudice all claims against said defendants. For the following reasons, this court’s orders should be affirmed.

I. BACKGROUND

Plaintiffs commenced this asbestos mass tort action alleging that decedent John C. Ravert contracted mesothelioma as a result of his occupational exposure to asbestos products. See plaintiffs’ complaint, ¶13. On March 25, 2008, ACE, Chesterton, Monsey, and Pécora filed for summary judgment. On March 27, 2008, Union Carbide filed for summary judgment. On April 11, 2008, plaintiffs filed a response to each of the motions. Pécora replied on April 13, 2008. ACE, Chesterton, and Monsey replied on April 16, 2008. Union Carbide replied on April 18, 2008. Plaintiffs’ counter replies were filed for Union Carbide on April 23, 2008; for Pécora on April 24, 2008; and for ACE, Chesterton, and Monsey on April 28, 2008. Replies to plaintiffs’ counter replies were filed on April 28, 2008 by ACE (as a sur reply); April 30, 2008 by Monsey; and May 6, 2008 by Chesterton. All of defendants’ motions asserted lack of sufficient product identification as required by Ekenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988) and its progeny.

After careful review of the motions, responses, replies, and sur-reply, this court granted summary judgment in favor of each of the defendants and dismissed with prejudice plaintiffs’ claims on May 14, 2008. The case was then removed by remaining defendants Weil McClain and Goodyear to the United States District Court for the Eastern District of Pennsylvania on May 20, 2008. On May 30, 2008, plaintiff timely filed appeals from the orders granting summary judgment to these defendants.

On July 1, 2008, in response to this court’s order, plaintiffs filed their concise statement of errors complained of on appeal pursuant to Pa.R.A.P. § 1925(b). This court issued its opinion August 6, 2008.

On October 1, 2009, the Pennsylvania Superior Court ruled that plaintiff’s appeal was interlocutory because there were still two remaining defendants in the case; therefore the order was not a final, appealable order. By order dated November 12, 2009, the Honorable Eduardo Robreno remanded the case back to the trial court finding that the removal to federal court was improper because there were no grounds to invoke federal subject matter jurisdiction under 28 U.S.C. §1332.

On September 10, 2010, plaintiff settled with all remaining defendants prior to trial. Thereafter, plaintiff petitioned the Superior Courtto reinstate the appeal initially filed May 30,2008 (1731 EDA 2008). The Superior Court denied plaintiff’s petition on reinstate the previous appeal, however plaintiff filed a new appeal on October 8, 2010 (2978 EDA 2010). Plaintiff filed a subsequent concise statement of errors complained of on appeal.

II. DISCUSSION

Plaintiff argues that this court erred by granting summary judgment to defendants. The available record in the instant matter, however, failed to establish that Ravert inhaled asbestos fibers from products sold, manufactured or supplied by the moving defendants. Thus, summary judgment was appropriate.

“In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Prods. Co., 861 A.2d 275, 276 (Pa. Super. 2004). In reviewing a grant of summary judgment, an appellate court’s scope of review is plenary and will reverse only upon finding that the trial court abused its discretion or erred as a matter of law. Harahan v. AC & S, Inc., 816 A.2d 296 (Pa. Super. 2003).

Our Superior Court, in Eckenrod vs. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), set forth the elements necessary to prove a prima facie case of asbestos liability:

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of the plaintiff’s injury. Id. at 52 (internal citations omitted).

Further, our Supreme Court in Gregg v. VJ Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (Pa. 2007), recently reiterated the duty of a lower court when reviewing an asbestos motion for summary based on product identification:

... [W]e believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of plaintiff’s/decedent’s asserted exposure, ajury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury. Id. at 30.

In light of this binding precedent, we review the record herein. Decedent, John Ravert was deposed by all defendants on June 25-27, 2007 and July 17-18, 2007. His deposition testimony fails to establish that decedent was exposed to asbestos fibers or asbestos dust shed from working with defendants’ products with the frequency, regularity, and proximity required under Pennsylvania law.

ACE

Defendant ACE argued that the testimony of the decedent failed to establish that decedent was exposed to a respirable asbestos-containing product supplied by ACE. Decedent testified that he shopped at ACE stores frequently, for various items including nails, friction tape, thermometers, roof cement, and roof coat. See deposition of John Ravert, 7/17/07, pp. 565-568. However, he also testified that he did not remember purchasing any asbestos products from any ACE Hardware store which contained any inhalable dust. See deposition of John Ravert, 7/18/07, p. 602.

Decedent remembers shopping in one ACE store in Pennsylvania, located in the Summit Park Shopping Center on Henry Avenue in Roxborough. See id., pp. 564-565 (Q: “...are there any other ACE Hardwares that you recall shopping at in Pennsylvania besides the one on Henry Avenue?” A: “No.”). Likewise, decedent only remembers three ACE stores in Jacksonville, Florida. See id, p. 566-567. Decedent does not recall shopping in any other ACE stores:

Q: Any other ACE Hardwares that you recall ever shopping at besides the four we discussed today?
A: No, but I imagine I have, but I can’t picture it, you know.

See id., pp. 567-568.

Decedent testified that he bought asbestos-containing roof coating and roof cement, but only at the Pennsylvania ACE location:

Q: Sir, of the four ACE Hardware stores we discussed today, did you purchase any products that contained asbestos from any of those ACE Hardware stores?
A: The ones here in Jacksonville, no.
Q: Okay. And when you mentioned the one in Pennsylvania in Summit Park —
A: Yeah, that one I did.

See id., pp. 568-569.

When questioned about the two products, decedent testified that at no point when he used them were they in the form of a dust:

Q: When you were using the roof coat, was there any type of dust generated in that process?
A: Just cleaning the roof where you were going to put it down. You got that dust there.
Q: But no dust from the roof coat itself?
A: No. It was a liquid, now. I don’t believe you can get dust from a liquid.
sf: sfí :fí ^ %
Q: And was there any dust generated when you were using the roof cement?
A: No.

See deposition of John Ravert, 7/18/07, pp.605-606.

Now burdened with decedent’s testimony which cannot support its claims, plaintiffs go on to engage in a deconstruction of this testimonial evidence and create an artificial record which attempts to dehor decedent’s observation denying the existence of asbestos dust. They submitted seven exhibits along with their response to the motion for summary judgment alleging that roof cement products dried quickly enough so as to see asbestos dust. See plaintiff’s response to the motion for summary judgment, p. 1. Plaintiffs also submitted several affidavits, pretrial examinations, and news articles in an attempt to support their claims that respirable fibers were present. See id, exhibits B-G. However much of this information is irrelevant to this case in general and ACE specifically. The simple fact remains that plaintiffs’ attempt to impeach decedent fails because decedent testified that he never inhaled dust from ACE roofing materials. Clearly, plaintiffs cannot meet the Ekenrod test.

Thus, considering the foregoing, plaintiffs have failed to establish that decedent was exposed to any respirable asbestos fibers sold by ACE and summary judgment was proper.

Chesterton

Similarly, Chesterton argued that plaintiffs’ evidence failed to establish that decedent inhaled asbestos dust or fibers from a product manufactured by Chesterton. Decedent testified that the earliest he can remember using Chesterton products was during his employment with the Baldwin School. See deposition of John Ravert, 7/18/07, p. 571 (Q: “...the first time that you recall using a product that you knew to be Chesterton was at the Baldwin School; correct?” A: “Right.”). Decedent further testifies that the only product that he associates with Chesterton is string packaging, although he did not read the packaging very closely.

Q: Okay, and the only product that you associate with Chesterton was the packing that you used there?
A: The string packaging.
Q: And I think I believe you said that you really didn’t read any writing on the packages other than just the word “Chesterton,” correct?
A: Uh-huh.
Q: Okay. So —
A: Usually it was on a roll. It didn’t have nothing on it. It was just sitting and you cut a piece off. Most of the writing was gone ad on the spindle you couldn’t see any, you know, numbers. I looked at the number, seeing if it was a half inch or whatever.

See id., p. 571,573.

Decedent further testified that, during the installation of any packing, regardless of the brand, there was no respirable dust from the product itself. See deposition of John Ravert, 6/28/08, p. 281 (Q: “There wasn’t any dust created in that process; was there?” A: “No. There was dust from the people walking in the basement.”).

Plaintiffs did not attempt to rebut any of the product identification testimony in decedent’s deposition. Based on the evidence presented, plaintiffs cannot meet the Ekenrod test because of the lack of respirable dust. Thus, considering the foregoing, plaintiffs have failed to establish that decedent was exposed to any respirable asbestos fibers manufactured by Chesterton and summary judgment was proper.

Monsey

Defendant alleged that plaintiffs failed to sufficiently identify a Monsey product which exposed decedent to a respirable asbestos-containing dust. Decedent testified that he used Monsey products on the roofs of Penn Fishing Tackle, Hamilton Court Apartments, and his mother’s house. See deposition of John Ravert, pp. 491, 505.

Decedent also testified that none of the Monsey products that he remembered using gave off dust while he was applying them:

Q: Was there any dust involved in the application of either the cement or the coating?
A: They were a liquid, they didn’t have dust. But cleaning off the roof, you know, the old dust from the tar paper.
Q: Was there any dust involved in the application of the tar paper?
A: No.

See id., p. 502 (emphasis added).

Further, decedent was unable to identify the manufacturer of the roofing products that were already on the roof when he was making repairs:

Q: So then, you wouldn’t be able to identify the manufacturer of the brand that you were ripping up; would that be correct?
A: Ripping up? You mean, what was down there, ripping it up?
Q: Yes. ,
A: No I wouldn’t. Unless I put it down there, but I didn’t, so. You might see a signature under there. When you’re ripping something up, you don’t look for names or anything.

See id., p. 504.

Plaintiffs were unable to rebut any of the product identification testimony in decedent’s deposition. Given that decedent said there was no dust and he could not identify the product, plaintiffs fail to establish the frequency, regularity, and proximity requirements of Ekenrod. Thus, considering the foregoing, plaintiffs have failed to establish that decedent was exposed to any respirable asbestos fibers manufactured by Monsey and summary judgment was proper.

Pécora

Defendant alleged that plaintiffs failed to sufficient identify a Pécora product which exposed decedent to a respirable asbestos-containing dust. Decedent testified that he used Pécora furnace cement during his employment at both Bee Fuel Company and the Baldwin School for Girls:

Q:... Further down on the list you have 15, and it says “Pécora Furnace Cement.” Do you see that?
A: That name I remember on the cement can.
Q: Flere’s the same picture. I have a copy of the picture here.
A: Pécora Furnace Cement.
Q: Okay, here’s the picture.
A: Yeah, this I remember.
Q: Sir —
A: This was at the Baldwin School.
A: And it was also at Bee Fuel Company, this, the name, Pécora, at both places. And I can’t tell you why. It’s just —
‡ ‡ H* >1* ‡
Q: Sir, do you recall the name Pécora at Bee Fuel; is that what you said?
A: Yes.
‡ ‡ %
A: And Baldwin School for Girls.

See deposition of John Ravert, 6/27/07, pp. 319-321.

Even though decedent remembered the Pécora products from two different locations, he testified that the Pécora furnace cement was not dusty:

Q: Sir, from the description of applying this product, either by hand or with a trowel, this would not be considered a dusty application; would it?
A: Can you define what you mean by “dusty”?
Q: Do you understand my question, sir?
A: You just asked me if it was a dusty product.
Q: The application, putting this product onto the furnaces, that was not, in your mind, a dusty application; was it?
A: No, no.

See id., pp. 333-334.

Decedent then explained that he did not actually use the Pécora furnace cement while employed at the Baldwin School:

Q: Well, let me just clarify that, sir, and maybe I’m finished. At Baldwin, you remember seeing the product Pécora —
A: Yes, I do.
Q: But you did not actually use it when you —
A: It was inside the plumbing room.
Q: But you did not actually use that product when you were at Baldwin; correct?
A: No.

See id., p. 335.

Plaintiffs were unable to rebut any of the product identification testimony in decedent’s deposition. Thus, considering that the decedent testified as to the lack of dust, plaintiffs have failed to establish that decedent was exposed to any respirable asbestos fibers manufactured by Pécora and summary judgment was proper.

Union Carbide

Defendant alleged that plaintiffs failed to sufficiently identify a Union Carbide product in existence at the time in which decedent claimed to have worked with it. Decedent testified that he was employed at the Bee Fuel Oil Company during a period from 1960-1961:

Q: What’s your date of birth?
A: May 16, 1946.
^ % %
Q: And what was your first job, sir?
A: My first job was at Bee Fuel Oil Company.
Q: Flow old were you?
A: I was fourteen.
ifí íjc ij: ‡
Q: What period of time did you work for Bee Fuel, sir?
A: Like I said, from fourteen almost until I was sixteen, almost.

See deposition of John Ravert, 7/18/07, pp. 11-12, 15.

Decedent further testified that he used Union Carbide asbestos only while employed at Bee Fuel:

A: No, if it was a bunch of letters or writing, I wouldn’t bother with it. The words would be too big for me. There was a lot of writing on the bags, the manufacturer — that I remember, it said the manufacturer, but I never went passed that, who by. Union Carbide was on one of them; manufactured by Union Carbide.
Q: That was on the bag?
A: That was on the bag.
Q: Do you know what kind of product was in the bag? I mean, you said there was asbestos. I mean, did it have a name?
A: Asbestos.
Q: That’s all it said? In other words, it didn’t say “cement” or it didn’t say —
A: No, I know the difference between cement and asbestos.
*****
Q: The Union Carbide bag that we just spoke about, those bags you recall from Bee Fuel Oil Company; is that correct?
A: Yes.
Q: Okay, and that’s the only place you recall them from; is that correct?
A: Yes...

See deposition of John Ravert, 6/25/07, pp. 64-65.

Union Carbide argued that it was not possible for decedent to have used bags of asbestos during his tenure at Bee Fuel Oil Company because the product was not even manufactured until late 1963. See affidavit of John L. Myers, ¶3. Plaintiffs do not dispute this date; in fact they agree. See plaintiffs’ response to defendant’s motion for summary judgment, p. 1 (“... Union Carbide did make or distribute pastes and cements for high temperature uses in steel plants during 1963 when Ravert was at Bee Fuel”). However, according to decedent’s testimony, the most recent date that he could have been employed at Bee Fuel was May of 1962. See deposition of John Ravert 7/18/07, pp.11-12,15, supra. Plaintiff’s tacit approval of defendant’s assertion that Union Carbide did not manufacture the bags of asbestos that decedent remembers until 1963 is enough to resolve doubt that there exists any material fact.

In light of the foregoing, plaintiffs were unable to rebut any of the product identification testimony in decedent’s deposition. Thus, plaintiffs have failed to establish that decedent was exposed to any respirable asbestos fibers manufactured by Union Carbide and summary judgment was proper.

All other issues raised by plaintiffs in their statement of errors complained of on appeal are inapplicable to this appeal as they do not address the essential issue successfully argued by defendants’ in their motions for summary judgment, that plaintiffs failed to prove lack of sufficient product identification as required by Ekenrod.

III. CONCLUSION

For the foregoing reasons, this court’s orders granting summary judgment in favor of defendants, ACE, Chesterton, Monsey, Pécora, and Union Carbide should be affirmed.

      . The terms “dust” and “fibers” are used interchangeably as they are microscopic and cannot generally be seen with the naked eye.

      . Plaintiff maintains that only the roof coating and cement were asbestos-containing products.


source: Caselaw Access Project

author: SIBUM, J.,

license: Public Domain

text:
    Heist v. Henny Penny Farms Inc.

      Vincent A. Coppola, for plaintiff.

      Alexander Nemiroff, for defendant.
    March 11, 2011
   SIBUM, J.,

This matter comes before the court on defendant’s motion to disqualify plaintiff’s counsel. Plaintiff commenced this action seeking damages for wrongful termination from his employment with defendant, Henny Penny Farms, Inc. Plaintiff filed a complaint on August 13, 2009. A subsequent amended complaint was filed on September 16, 2009 which also included a claim for defamation. Defendant filed a motion to compel discovery on November 1, 2010. Upon receiving and reviewing said discovery, defendant filed a motion to disqualify plaintiff’s counsel on November 17, 2010. Defendant avers that based upon plaintiff’s responses to the discovery, plaintiff’s counsel will be a fact witness in the case and had ex parte communications with defendant’s owner, thus violating the Pennsylvania Rules of Professional Conduct. Both parties appeared before the court to argue their respective positions on February 7, 2011. We are now prepared to address this matter.

DISCUSSION

APennsylvania trial court has the authority to disqualify an attorney whose behavior threatens to violate the rules of professional conduct. See Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 254, 602 A.2d 1277, 1283-84 (Pa. 1992); McCarthy v. Southeastern Pa. Transp. Auth., 772 A.2d 987, 991 (Pa. Super. 2001)(Pennsylvania trial courts may sanction counsel by disqualification for violating the rules of professional conduct). This authority, however, is limited to those circumstances “where disqualification is needed to [e]nsure the parties receive the fair trial which due process requires.” Id. citing In re Estate of Pedrick, 505 Pa. 530, 542, 482 A.2d 215, 221 (Pa. 1984). In addition, “[a] party seeking to disqualify opposing counsel has the burden of establishing that counsel’s continued participation in the case would violate the disciplinary rules.” Petition of Kenvue Dev. Inc., 602 A.2d 470, 476 (Pa. Super. 1992).

In his motion to disqualify plaintiff’s counsel, defendant argues that plaintiff’s answers to requested discovery imply that his counsel, attorney Vincent Coppola (“Coppola”), violated rules 3.7 and 4.2 of the Pennsylvania Rules of Professional Conduct. The undisputed facts and procedural history of this case are as follows:

Plaintiff was employed by defendant as a truck driver, [amended complaint, ¶3; answer, ¶3.] Plaintiff suffered a work related injury while in the course and scope of his employment as an employee of defendant and subsequently filed a Workman’s compensation claim. Id. at 4,5. Plaintiff notified defendant of his work related injury and thereafter received medical care and therapy under defendant’s workers’ compensation-policy. Id. at 5. Plaintiff later returned to work yet continued to receive physical therapy. Id. at 7. Plaintiff alleges that defendant’s owner, Lee Hoffner (“Hoffner”), contacted plaintiff by phone in June of2009 and accused plaintiff of committing “serious insurance fraud” for receiving physical-therapy after he had returned to work for the work related injury. Id. at 11,12. Plaintiff’s employment was subsequently terminated in June 2009. Id. at 16.

Plaintiff’s instant action arises from his belief that defendant terminated his employment in retaliation for exercising his rights under Pennsylvania’s Workers’ Compensation Act, and that Hoffner subsequently made defamatory statements about plaintiff regarding the circumstances of his alleged workers’ compensation claim, [amended complaint, ¶18, 24]

On July 10, 2009, Coppola sent a letter to Hoffner informing him that plaintiff was represented by counsel and that said counsel was aware of the defamatory statements made accusing plaintiff of “committing insurance fraud.” [response, ¶22] Coppola also advised Hoffner of the illegality of firing an at-will employee in retaliation for filing a workers’ compensation claim. Id. Several weeks later, yet prior to the institution of this action, two meetings with Hoffner took place to discuss the resolution of plaintiff’s claims, [response, ¶22, Tab 3; defendant’s brief, p. 2, exhibit C] Plaintiff and Coppola each attended at least one of the meetings. Id. Hoffner attended both meetings where he was again apprised that it was illegal to fire plaintiff for exercising his right to workers’ compensation benefits. Id. The underlying issue was not resolved at either meeting, and plaintiff instituted the present action against defendant by filing a complaint on August 13, 2009.

On August 6, 2010, defendant served interrogatories and document demands on plaintiff’s counsel. Plaintiff responded to defendant’s discovery requests on November 8, 2010. Defendant now bases his motion to disqualify plaintiff’s counsel on plaintiff’s answers to interrogatories no. 15 & 16.

Interrogatory No. 15 requested plaintiff to provide the factual basis for an allegation in the amended complaint in which plaintiff alleges that defendant refused to rehire plaintiff even after defendant was expressly apprised that it is unlawful to fire an employee for exercising one’s statutorily protected right of workers’ compensation, [motion, ¶6; response, ¶4; amended complaint, ¶21]

Plaintiff initially responded that plaintiff’s counsel, Vincent A. Coppola, personally met with Mr. Hoffner. [motion, ¶6; response, ¶5] Plaintiff then submitted a supplemental answer to interrogatory no. 15, in which he clarified that Coppola personally met with Hoffner prior to the date on which the initial complaint was filed to advise Hoffner that it is illegal to fire someone for exercising a right to workers’ compensation benefits, [response, ¶22, 23; defendant’s brief in support of defendant’s motion to disqualify, p. 2] Plaintiff claims the meeting occurred prior to the filing of his original complaint as an attempt to negotiate plaintiff’s return to work and thus obviate litigation, [response, ¶13] Coppola had previously sent Hoffner a letter dated July 10, 2009, in which he had apprised Hoffner of the same information, [response, ¶22, tab 3] Subsequent to both Hoffner’s receipt of the July 10 letter and the meeting with Coppola, Hoffner visited plaintiff’s home and was again apprised that it was illegal to fire someone for exercising a right to workers’ compensation benefits, [response, ¶22, tab 3; defendant’s brief, p. 2]

Interrogatory No. 16 asked plaintiff to provide the factual basis for plaintiff’s allegation that the defamatory statements were published with knowledge that they were false, or with reckless disregard for the truth of such statements, [motion, ¶7; response, ¶ 6; amended complaint, ¶28]

Plaintiff responded that Mr. Hoffner was apprised of the falsity of such statement by plaintiff and his representative, [motion, ¶7; response, ¶7] Plaintiff also clarified in his response that “plaintiff’s representative” in interrogatory no. 16 does not refer to plaintiff’s counsel, Mr. Coppola, as evidenced by the use of the word “representative” in interrogatory no. 16 versus identifying plaintiff’s counsel by name as in interrogatory no. 15. [response, ¶23]

In his motion to disqualify plaintiff’s counsel, defendant argues that based upon plaintiff’s responses, it is clear that Coppola will be a fact witness in the case. Coupled with Coppola’s ex parte communications with Hoffner, defendant argues Coppola’s actions violate rules 3.7 and 4.2 of the Pennsylvania Rules of Professional Conduct and therefore, Coppola should be disqualified as attorney of record.

Little, if any, appellate case law exists with respect to the issue at hand. However, we find guidance in the federal rules as well as the opinions of several of the Pennsylvania courts of common pleas who have addressed this matter. We will consider such guidance as we address defendant’s motion.

Pennsylvania Rule of Professional Conduct 3.7 provides in pertinent part as follows:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.

Pa.R.C.P.3.7.

Rule 3.7 specifically provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. Pa.R.C.P. 3.7 (emphasis added). “While there is no binding and clear decision as to when rule 3.7 may be applied, the consensus in Pennsylvania is that an attorney-witness is permitted to participate in pretrial activity and may not be disqualified under rule 3.7 until trial.” First Republic Bank v. Brand, 51 D. & C. 4th 167, 168 (2001). “As such, any motion seeking disqualification of an attorney under rule 3.7 alone generally is premature if submitted prior to trial.” Id.

Courts have also allowed attorneys to continue representation in cases in which they are potential witnesses if other witnesses are available to testify and it is not clear that the attorney is an indispensable witness. See United Food and Commercial Workers Health and Welfare Fund of Ne. Pa. v. Darwin Lynch Adm’rs, Inc., 781 F.Supp. 1067, 1069-70 (M.D. Pa. 1991); In re Condemnation of Lands in Scranton, 46 D. & C. 4th 66, 99-100 (1998). “To establish that an attorney will be a necessary witness, it must be shown that the proposed testimony is relevant, material and unobtainable elsewhere.” Albert Greenfield & Co. v. Alderman, 52 D. & C. 4th 96, 115 (2001). The term “necessary” means that no other witness is able to testify, and precludes disqualification if the lawyer’s testimony would be merely cumulative. Id.

Even if counsel is a necessary witness at trial, the consensus in Pennsylvania is that the attorney is not precluded from representing the client in pre-trial proceedings. Id., Robinson v. Hicks, 2009 WL 1140093 at 2 (M.D.Pa. 2009). The United States District Court for the Middle District of Pennsylvania has further held:

It is often difficult to predict whether an attorney’s testimony will be necessary until discovery closes, and deferring disqualification issues allows the court to gain familiarity with the factual underpinnings of a case through the dispositive motion process. This experience enables the court to better assess whether counsel possesses pertinent information, whether such information is likely to be admissible at trial, and whether an alternate witness is available to introduce the testimony. Robinson v. Hicks, 2009 WL 1140093 at 2 (M.D.Pa. 2009).

As soon as it becomes clear that the attorney is likely to testify, the attorney should be disqualified. In re Condemnation of Lands in Scranton, supra.

Here, it is unclear whether Coppola’s proposed testimony is evidence that cannot be obtained elsewhere or that his proposed testimony is material. Plaintiff informed defendant in its supplemental answer to interrogatory, no. 15 that Coppola sent Hoffner a letter apprising him of the illegality of firing plaintiff for claiming workman’s compensation benefits. Coppola then met with Hoffner and apprised him again of the same information. Finally, Coppola stated that Hoffner visited plaintiff’s home and was again apprised of the same information. Based upon these facts, we can infer that plaintiff was at least present at the second meeting with Hoffner and can testify as to the information exchanged between the parties. Whether or not Coppola’s testimony is cumulative is a matter deserving further discovery. Nonetheless, pursuant to the rules as stated above, defendant’s motion is premature, and this court need not disqualify Coppola at this juncture.

Finally, defendant, in his motion, asserts that plaintiff’s counsel should be disqualified for violating Rule of Professional Conduct 4.2. Defendant, however, did not brief or present oral argument on this issue. As such, the issue is waived.

For the reasons set forth above, defendant’s motion to disqualify plaintiff’s counsel will be denied without prejudice to refile at a time closer to the trial date in the event defendant is able to establish that Coppola’s disqualification is then appropriate. Accordingly, we enter the following order.

ORDER

And now, March 11,.2011, upon consideration of defendant’s motion to disqualify plaintiff’s counsel, said motion is denied.

      . Reference to plaintiff’s amended complaint filed on 9/30/09 will be cited as [amended complaint, ¶_.] and defendant’s answer and new matter to the amended complaint filed on March 17, 2010 will be cited as [answer, ¶_.].

      . Reference to defendant’s motion to disqualify plaintiff’s counsel filed 11/17/10 will be cited as [motion, ¶_.] and to plaintiff’s response to defendant’s motion to disqualify filed 12/27/10 will be cited as [response, ¶_.].

      . Although defendant proffers that he seeks to take Coppola’s dep - sition in order to ascertain whether he was a witness to the defamatory statements as well as whether settlement discussions occurred between Coppola and defendant, this issue was not formally addressed in defendant’s motion or brief. As such, it is not before the court at this time.


author: NEALON J.,

text:
    Scranton Times v. Entercom Wilkes-Barre Scranton LLC

      Joseph S. Sileo and Jennifer Walsh Clark, for plaintiff.

      Michael E. Dash Jr., for defendants.
    March 24, 2011
   NEALON J.,

The former employer of a radio show co-host seeks to preliminarily enjoin that radio personality and his current employer from utilizing the ex-employee’s professional name and any fictional characters, comedic material or artistic product that he developed and published during his former employment. An evidentiary hearing was conducted on April 7, 2010 at which time testimony was received from William Lynett, Jeff Longaven, Ryan Flynn and John Gasper and ten exhibits were introduced into evidence. The factual findings set forth below are based upon the credible and relevant evidence presented during that hearing.

I.FINDINGS OF FACT

1. Plaintiff Scranton Times, LP (“Scranton Times”) owns the license to operate radio station WEZX, which is also known as Rock 107. Defendant Entercom Wilkes Barre Scranton, LLC (“Entercom”) operates radio station WILK, which broadcasts on four AM and FM frequencies in the same competitive market as WEZX. WEZX/Rock 107 is a rock music radio station featuring comedie entertainment and musical parodies during its morning programming. WILK is a news talk radio station which features discussion of local and national news, commentary by its program hosts, and telephone calls from its listening audience. WILK does not broadcast any music entertainment.

2. In the early 1980’s, defendant John Gasper (“Gasper”) was employed in the business office of WEZX and would periodically appear on its morning radio show as the fictional character “Swami Salami.”

3. In January 1985, Jeff Longaven (“Longaven”) began hosting a morning radio show on WEZX using his on-air name “Jay Daniels.”

4. In early March 1985, Gasper joined Longaven as the co-host of the WEZX/Rock 107 morning radio show. At the suggestion of another radio station employee, Gasper assumed the on-air name “John Webster” and the radio show was identified and promoted as “Daniels & Webster.”

5. From March 1985 through March 30, 2010, Longaven and Gasper acted as the co-hosts of the Rock 107 morning radio show “Daniels & Webster,” which featured classic rock music and comedic entertainment. During that time, Gasper frequently portrayed fictional characters known as “Walter Nepasky” and “Jonesy,” and Longaven and Gasper jointly depicted other comedic characters identified as the “Scranton Dopes” and the “Pop Flies.” In addition, Longaven and Gasper engaged in musical parodies and other comedic skits as part of the “Daniels & Webster” program.

6. From March 1985 through March 30, 2010, Scranton Times expended considerable resources in promoting the “Daniels & Webster” radio show through newspaper, television and billboard advertising, commemorative T-shirts, and CDs of their most popular performances. The advertisements and promotional materials portrayed “Daniels & Webster” and “D & W” collectively as a radio show team, rather than Jay Daniels or John Webster as individual or solo entertainers.

7. With the exception of rare occurrences attributable to illness or vacation, neither Longaven nor Gasper ever performed as a solo host on WEZX/Rock 107, and to the contrary, both radio personalities consistently broadcast together as the “Daniels & Webster” team.

8. On June 9, 2006, Scranton Times and Gasper executed an employment agreement for the three-year period from 6/9/06 through 6/9/09. The employment agreement identifies the Scranton Times as the “Employer” and Gasper as the “Performer” and states that the “Employer shall employ Performer as Air Talent” during the three-year term of employment. The signatories to the employment agreement were Gasper as the Performer and Robert J. Lynett as the General Manager of the Scranton Times/WEZX. (See, plaintiff’s petition for preliminary injunction, Exhibit A.)

9. Section 5.7 of the agreement entitled “Artistic Product” provides, in pertinent part, that:

Performer acknowledges and agrees that Employer will be the sole and exclusive owner of all rights in the show or any character portrayed by performer, including name, likeness, comedic material, and distinctive characterizations thereof and the right to merchandise and exploit such show or role/character, and the right to use time to portray, exploit, merchandise or make any use of such comedic material or role/character unless approved in advance and in writing by Employer. Employer shall have the right to use and permit others to use performer’s name, photograph, likeness, voice (or simulations thereof) and biography in connection with advertising, publicizing, and exploiting the show, and Employer’s entertainment properties, or any parts thereof (including soundtrack albums, souvenirs, and other promotional items.) {Id., p. 6) (italics added).

10. Gasper was the only signatory to the employment agreement who testified during the hearing on April 7, 2010. Gasper testified that Section 5.7 was intended to grant the Scranton Times exclusive ownership of the names of the comedic characters that he portrayed, such as Walter Nepasky, Jonesy, the Swami Salami, the Scranton Dopes and the Pop Flies. Gasper testified that although Section 5.7 granted the Scranton Times the right to use Gasper’s on-air name “John Webster” to advertise and promote the “Daniels & Webster” show, it did not vest the Scranton Times with exclusive ownership of Gasper’s on-air name. ,

11. Pursuant to S ection 2 of the agreement, the S cranton Times or Gasper could “elect to terminate the automatic extension” of the employment contract’s term “by giving sixty (60) days written notice of such election on or before the expiration date.” In compliance with Section 2, Gasper timely advised WEZX’s General Manager of his decision not to automatically renew his employment agreement. Nevertheless, from June 2009 through March 30, 2010, Gasper and the Scranton Times continued to negotiate the terms of a possible renewal contract.

12. While Gasper was engaged in those contract negotiations with the Scranton Times in early 2010, and unbeknownst to the Scranton Times, Gasper was also participating in discussions with Entercom regarding possible employment as a radio host on WILK.

13. On March 30, 2010, Gasper resigned from his position with WEZX/Rock 107 and announced his acceptance of employment with Entercom/WILK.

14. Gasper’s employment agreement with Entercom grants Entercom sole and exclusive ownership of Gasper’s on-air name “John Webster” only for the duration of his employment relationship with Entercom.

15. On March 31, 2010, Entercom began to broadcast promotions of “John Webster” as WILK’s new morning radio show co-host with WILK’s existing morning show co-host, Nancy Kman.

16. When contacted by The Times Leader reporter, Mike McGinley, on March 31, 2010, Entercom’s Vice-President/Market Manager, Ryan Flynn, stated that the hiring of Gasper is “a high-profile type of move that gives us the ability to expand the WILK brand and capitalize on the reputation of John Webster in this market.” Similarly, when interviewed by the Scranton Times staff writer, Stacy Brown, on March 31,2010, Mr. Flynn remarked that “[t]his is a high-profile move that gives us the ability to expand the WILK brand and capitalize on the tremendous reputation of John Webster in this market.”

17. On April 2, 2010, counsel for the Scranton Times forwarded a communication to Ryan Flynn demanding that Entercom “cease and desist” from any use of the name “John Webster” or any comedic characters or material created and aired by the “Daniels & Webster” show.

18. Gasper is scheduled to commence employment with Entercom on April 12,2010 as the co-host of WILK’s morning news talk radio program with Nancy Kman.

19. Since WILK’s morning radio program features news discussion, program host commentary and telephone conversations with listeners, the fictional characters and comedic material developed by Gasper in connection with the “Daniels & Webster” show are not compatible with WILK’s news talk radio format.

20. The Scranton Times has not yet determined what the new format will be for its morning radio show on Rock 107, nor has it decided who the host(s) will be for that program. However, the Scranton Times has not foreclosed the possibility that it may hire a new co-host for its morning radio show on Rock 107 and continue to call that program “Daniels & Webster”.

21. The Scranton Times presented the instant petition for a preliminary injunction on April 7, 2010, and an evidentiary hearing was conducted on that date.

II. DISCUSSION

(A) STANDARD OF REVIEW

To establish its right to the issuance of a preliminary injunction, the Scranton Times must prove that: (1) an injunction is necessary to prevent immediate and irreparable harm which cannot be adequately compensated by damages; (2) greater injury would result from refusing an injunction than from granting it; (3) an injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) its right to relief is clear, i.e., the Scranton Times is likely to prevail on the merits; (5) the injunction sought is reasonably suited to abate the offending activity; and (6) a preliminary injunction will not adversely affect the public interest. Pennsylvania Gaming Control Board v. City Council of Philadelphia, 593 Pa. 241, 277-278, 928 A.2d 1255, 1277 (2007); Pennsylvania State Education Association v. Com., Office of Open Records, 981 A.2d 383, 385 (Pa. Cmwlth. 2009). Relying upon the language of the employment agreement and federal and state trademark law, the Scranton Times submits that it is entitled to a preliminary injunction barring Gasper and Entercom from using the name “John Webster” or any comedic characters and materials that he developed on “Daniels & Webster.”

(B) CONTRACT CLAIM

The Scranton Times’ first argument involves the interpretation of Section 5.7 of the employment agreement. In construing the language of a contract, the court must ascertain and effectuate the intent of the parties. Crawford Central School District v. Com. of Pennsylvania, 585 Pa. 131, 143, 888 A.2d 616, 623 (2005). When the words of an agreement are clear and unambiguous, the intent of the parties is to be determined from the language employed in the agreement. LJL Transp, Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 559, 962 A.2d 639, 647 (2009). The language of a contract may be deemed ambiguous if it is “reasonably or fairly susceptible of different constructions” and is capable of being understood in more than one sense. Betz v. Erie Insurance Exchange, 957 A.2d 1244, 1253 (Pa. Super. 2008); Black v. Jamison, 913 A.2d 313, 318 (Pa. Cmwlth. 2006), app. denied, 592 Pa. 774, 926 A.2d 442 (2007).

Any contractual ambiguities must be construed against the drafter of the agreement. Rekun v. Pelaez, 976 A.2d 578, 581 (Pa. Super. 2009); Vinikoor v. Pedal Pennsylvania, Inc., 974 A.2d 1233, 1238 (Pa. Cmwlth. 2009); Lane v. Com. of Pennsylvania, 954 A.2d 615, 619 (Pa. Super. 2008). When attempting to clarify or resolve any ambiguity, courts are free to consider extrinsic parol evidence concerning the disputed language in the instrument. Rekun, supra; Vinikoor, supra. Furthermore, the words of an agreement cannot be viewed in isolation and must be analyzed within the context that they appear, including whether the terms at issue are preceded by sp ecific reference to a particular subj ect. See, Eighth North Valve. Inc. v. William L. Parkinson. D.D.S., P.C. Pension Trust, 773 A.2d 1248, 1255 (Pa. Super. 2001); Smith v. SEPTA, 707 A.2d 604, 608 (Pa. Cmwlth. 1998); Housing and Redevelopment Insurance Exchange (HARIE) v. Lycoming County Housing Authority, 58 D. & C. 4th 321, 345 (Lacka. Co. 2001), aff'd, 809 A.2d 1096 (Pa. Cmwlth. 2002).

The language of Section 5.7 grants the Scranton Times two categories of naming rights. First, it states that the Scranton Times is “the sole and exclusive owner of...any characterportrayedby Performer, including name, likeness, comedic material, and distinctive characterizations” of any such character. Second, the agreement provides that the Scranton Times possesses the “right to use...Performer’s name, photograph, likeness, voice (or simulations thereof) and biography in connection with advertising, publicizing, and exploiting” the “Daniels & Webster” show. Examining the quoted language within the context that it appears, the only reasonable construction of Section 5.7 is that it furnishes the Scranton Times exclusive ownership of the names and comedic material of Walter Nepasky, Jonesy, the Swami Salami, the Scranton Dopes, the Pop Flies and any other fictional or comedic character portrayed by Gasper on the “Daniels & Webster” show. However, with regard to the “Performer’s name,” i.e., “John Webster,” the Scranton Times merely acquired the non-exclusive right to use that name in advertising and publicizing the “Daniels & Webster” show. Nothing contained in Section 5.7 expressly grants the Scranton Times sole and exclusive ownership of the Performer’s on-air name “John Webster.”

The Scranton Times contends that it maintains sole and exclusive ownership of Gasper’s on-air name “John Webster” since “any ‘character portrayed by Performer’ encompasses the on-air name ‘John Webster.’” (Plaintiff’s brief in support of petition for preliminary injunction, p.10.) If the Scranton Times had intended to secure exclusive ownership of the “Performer’s name” that he used while broadcasting as an “Air Talent” on Rock 107 and to perpetually deprive Gasper of his right to use his on-air name, it could have drafted its own agreement to state “that Employer will be the sole and exclusive owner of Performer’s name ‘John Webster.’” See, Maloney v. Valley Medical Facilities, Inc., 946 A.2d 702, 707 (Pa. Super. 2008) (discussing “the well settled principle that ‘an agreement or instrument which reduces legal rights which would otherwise exist...must spell out with the utmost particularity the intention of the parties.’”), aff’d, 984 A.2d 478 (Pa. 2009); HARIE, 58 D. & C. 4th at 346-347 (“We are mindful that HARIE, as the drafter of the insurance [contract], had the ability to control its exposure and indemnity obligations by inserting language that expressly excluded liability for constitutional torts or by defining the phrase ‘wrongful act’ more narrowly so as to eliminate coverage for claims involving violations of the First Amendment, Due Process clause or Whistleblower Law.”). Instead, the Scranton Times merely granted itself the non-exclusive right to use the Performer’s name in advertising and promoting the “Daniels & Webster” show, and confined its exclusive ownership rights to any characters portrayed and comedic material developed by the Performer. We must construe the agreement as written and may not modify the plain meaning of the contract language “under the guise of interpretation.” Szymanowski v. Brace, 987 A.2d 717, 722 (Pa. Super. 2009), reargument denied (Jan. 28, 2010); Thompson v. T J. Whipple Construction Company, 985 A.2d 221, 230 (Pa. Super. 2009), app. denied, 986 A.2d 152 (Pa. 2009).

In an effort to challenge the aforementioned interpretation of the employment agreement, the Scranton Times asserts that the reference to the “Performer’s name” in the final sentence of Section 5.7 relates solely to the name “John Gasper,” not “John Webster.” To that end, the Scranton Times posits:

The final sentence in Section 5.7 provides that [the Scranton Times] “shall have the right to use and permit others to use Performer’s name....” Clearly, that particular phrase presumes that John Gasper would “own” his own name - John Gasper - but gave [the Scranton Times] the right to use, and permit others to use, that name - John Gasper. (Plaintiff’s brief in support of petition for preliminary injunction, p. 11).

Such an interpretation is inconsistent with the evidence introduced by the Scranton Times during the hearing on April 7,2010. The Scranton Times argued at that time that it has devoted substantial sums of money to marketing and promoting the “Daniels & Webster” show through advertisements and publications that have included references to “John Webster” and “Jay Daniels.” The evidentiary record is completely devoid of any suggestion that the Scranton Times ever used, or even considered using, the name “John Gasper” in any advertisements for the “Daniels & Webster” show. Simply stated, the Scranton Times would have no interest in obtaining “the right to use” the name “John Gasper” in connection “with advertising, publicizing, and exploiting the show,” and the record reflects that the Scranton Times never used the name “Gasper” when promoting the “Daniels & Webster” show. Hence, any proffered construction of Section 5.7 to the effect that the reference to the “Performer’s name” relates to “John Gasper” rather than “John Webster” is without merit.

In the event that the contract language in question is regarded as ambiguous, it is appropriate to consider extrinsic parol evidence in attempting to resolve any such ambiguity. See, Rekva, supra; Vinikoor, supra. The only parol evidence presented by a signatory to the employment agreement consisted of the sworn testimony of Gasper. As indicated in Finding of Fact No. 10 above, Gasper has ascribed a meaning to Section 5.7 which is consistent with our interpretation that is premised upon well established rules of contract construction. The Scranton Times did not offer any contrary testimony from its signatory to the agreement during the injunction hearing on April 7, 2010.

“A preliminary injunction is an extraordinary remedy and should only be granted where the plaintiff has established a clear right to the relief request.” Hart v. O’Malley, 544 Pa. 315, 318 n. 1, 676 A.2d 222, 223 n. 1 (1996). In the case at bar, the Scranton Times has demonstrated a clear right to enjoin Gasper and Entercom from making use of the various comedic characters portrayed by Gasper on Rock 107, including Walter Nepasky, Jonesy, the Swami Salami, the Scranton Dopes and the Pop Flies. The Scranton Times is also entitled to a preliminary injunction barring Gasper and Entercom from using any of the musical parodies or artistic material developed and broadcast by Longaven and Gasper during the 25-year history of the “Daniels & Webster” show. Such limited injunctive relief is necessary to prevent immediate and irreparable harm, to restore the status quo, and to reasonably abate offending activity. See, Penna, Gaming Control Board, supra. However, the Scranton Times has not established a contractual basis for prohibiting Gasper from using his professional name “John Webster” while employed by Entercom. Consequently, based upon the language of Section 5.7 of Gasper’s employment agreement, Gasper and Entercom will be preliminarily enjoined from using the names of the comedic characters portrayed by Gasper and the musical and artistic product developed by him individually or jointly in connection with the “Daniels & Webster” show.

(C) STATE AND FEDERAL TRADEMARK CLAIMS

The Scranton Times alternatively requests the issuance of a preliminary injunction based upon trademark infringement law. There is a paucity of trademark law discussing an individual’s right to continue using a professional name as an entertainer or performer, and even less authority addressing the ability of a former employer to permanently prohibit an ex-employee from using an on-air name. The great weight of “trade name” precedent relates to product labels or business names that have arguably earned trademark protection under federal or state law.

To secure injunctive relief in a state law trademark infringement action, the petitioner must prove that: (1) it has a legal right to exclusive use of the name; (2) defendant is making use of a name that is confusingly similar to the subject name; and (3) defendant’s use of the name is likely to cause confusion in the petitioner’s competitive area. Zimmerman v. Holiday Inns of America, 438 Pa. 528, 534-535, 266 A.2d 87, 90 (1970), cert. denied, 400 U.S. 992 (1971); Limerick Auto Body, Inc. v. Limerick Collision Center, Inc., 769 A.2d 1175, 1179 (2001), app. denied, 567 Pa. 751, 788 A.2d 381 (2001).

It is well settled in Pennsylvania “that an individual is entitled to the use of his own name in his business, unless he has by contract deprived himself of that right.” Ralph Bros. Furniture Company v. Ralph & Sons, 338 Pa. 360, 363, 12 A.2d 573, 574 (1940). Accord, Seligman v. Fenton, 286 Pa. 372, 375,133 A. 561, 562 (1926) (“Every man has the absolute right to use his own name in his business, even though he may thereby interfere with and injure the business of another bearing the same name....”); Brody’s, Inc., 454 A.2d at 607 (“however, the test for infringement is completely different under Pennsylvania law when, as in the instant case, the trade name sought to be enjoined is also the personal name of the party using it.”). It is equally clear that descriptive, geographical and generic words, as well as words of common or general usage, belong to the public and are not capable of exclusive appropriation. Zimmerman v. B. & C. Motel Corporation, 401 Pa. 278, 282, 163 A.2d 884, 886 (1960); Pennsylvania State University v. University Orthopedics, Ltd., 706 A.2d 863, 871 (Pa. Super. 1998). These general axioms are subject to the limitation or exception that if a particular name has acquired a “secondary meaning” in the trade or the minds of the purchasing public, the trade name will be protected against infringement. Limerick Auto Body, Inc., 769 A.2d at 1179-80 (quoting Koolvent Metal Awning Corp. v. Price, 368 Pa. 528, 532, 84 A.2d 296, 298 (1951); Pennsylvania State University, supra; Brody’s, Inc., 454 A.2d at 607 n. 3 (“...names primarily understood to be personal names are not inherently distinctive and can be protected as trade names only when they have acquired secondary meaning.”).

“No clear test has emerged in Pennsylvania as a satisfactory method of establishing the existence of a secondary meaning.” Limerick Auto Body. Inc., 769 A.2d at 1180. The term “‘secondary meaning’ encompasses the situation where people in the trade or purchasing public come to think of a word or name as standing for the business of a particular owner.” Holiday Inns of America. Inc., 438 Pa. at 535, 266 A.2d at 90; Brody’s Inc., supra; Fox Broadcasting Company v. Fox Broadcasting Company, 1986 WL 11445 at * 7 (E.D. Pa. 1986). Although advertising is one of several relevant factors to be considered in making that determination, see, Miscellaneous. Inc. v. Klein’s Fashions, Inc., 452 Pa. 62, 65, 305 A.2d 22, 24 (1973), “advertising by itself, no matter how extensive, is insufficient to establish a secondary meaning.” Limerick Auto Body, Inc., supra. See also, B & C Motel Corp., 401 Pa. at 283, 163 A.2d at 886; Quality Weaving Co. v. Regan, 369 A.2d 296, 299 (1976). Moreover, to demonstrate the requisite secondary meaning, the supporting “witness testimony must be representative of the purchasing public in the plaintiff’s competitive area and must establish that the purchasing public views a term as representing the plaintiff’s business.” Limerick Auto Body, Inc., supra. The burden of proving such a secondary meaning is upon the party claiming its existence. Limerick Auto Body, Inc., 769 A.2d at 1180 n. 5; Brody’s, Inc., supra.

Entercom and Gasper submit that the name “Webster” is so common that the full name “John Webster” is incapable of a secondary meaning in the eyes ofthe consuming public. For example, Entercom and Gasper note that “Webster’s” is “a widely distributed dictionary” and “Webster” was “a 1980’s television series starring Emmanuel Lewis.” (Defendants’ Supplemental Brief in Further Opposition to petition for preliminary injunction, p. 2nd.) Entercom and Gasper further assert that “John Webster” was the name of “an English playwright who was a contemporary of William Shakespeare” and “a governor of the Colony of Connecticut,” and is currently the listed name of more than one person “in local phone books.” {Id., at pp. 2-3 n.1.)

It is unclear whether a local radio entertainer’s professional name can attain trademark status under Pennsylvania law. As the Supreme Court of Pennsylvania observed more than a century ago:

It has often been held that a trademark or a trade name, representing an article of commerce or a local business, is property which may be disposed of; but the name of an artist, an author, a musician, or a lawyer has never been regarded as a trade name, and as such saleable. Blakely v. Sousa, 197 Pa. 305, 332, 47 A. 286, 288 (1900). Accord, Heller v. Miller, 33 D. & C. 257, 258 (Schuylkill Co. 1938) (“It is settled that a person may transfer to another the right to use his name...with the exception that the name of an artist, an author, a lawyer or other professional is not a trade name and is not, as such, saleable.”).

Assuming arguendo that an entertainer’s professional name can achieve common law trade name protection, the evidence introduced by the Scranton Times did not satisfy its burden of proving that the name “John Webster” has acquired a secondary meaning in the minds of “the purchasing public.” See, Limerick Auto Body, Inc., supra. No member of the purchasing public testified that [s]he regards the name “John Webster” as so closely associated with Rock 107 that [s]he would believe that [s]he was listening to WEZX if [s]he heard WILK’s co-host referred to as “John Webster.” Compare Pennsylvania State University, 706 A.2d at 870 (“[Penn State University] documented at least 34 instances, over a seven-month period, when consumers of medical services or members of the medical community mistakenly contacted its Center for Sports Medicine, believing they were contacting [University Orthopedics].”) and Miscellaneous, Inc., 542 Pa. at 64, 305 A.2d at 24 (finding that the testimony of one customer and an employee’s fiance “that when they heard the word ‘Miscellaneous’ they thought of plaintiff’s store” was insufficient as a matter of law “to establish the ‘secondary meaning’ required to enable plaintiff to prevail.”). While it is true that the Scranton Times has expended significant time and resources in promoting the “Daniels & Webster” show during the past 25 years, which publicity has included incidental references to “JayDaniels” and “John Webster,” such extensive advertising alone cannot demonstrate a secondary meaning under Pennsylvania case law. See, Koolvent Metal Awning Corp., 368 Pa. at 534, 84 A.2d at. 299 (“The only basis on which a court could find in this case that the word ‘Koolvent’ had acquired a secondary meaning...arises from the extensive national and substantial local advertising of the plaintiff over a period of several years. This is not sufficient.”). Based upon the available evidentiary record submitted for our review, the Scranton Times has failed to adequately prove that the name “John Webster” possesses the requisite “secondary meaning” to warrant trademark protection.

The Scranton Times also requests injunctive relief based upon Section 43(a) of the Lanham Act which provides that a person may not use a word or name “in connection with any goods or services” if such use “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services or commercial activities by another person....” 15 U.S.C. § 1125(a)(1)(A). To prove trademark infringement or unfair competition under 15 U.S.C. § 1125(a)(1)(A), a plaintiff must prove that: (a) the mark or name is valid and legally protectable; (b) the plaintiff owns the mark or name; and (c) the defendant’s use of the mark or name to identify goods or services causes a likelihood of confusion. Commerce National Insurance Services, Inc. v. Commerce Insurance Agency. Inc., 214 F.3d 432,437 (3d Cir. 2000); Opticians Association of America v. Independent Opticians of America, 920 F.2d 187, 192 (3d Cir. 1990); Tillery v. Leonard & Sciolla, LLP, 437 F.Supp. 2d 312, 320 (E.D. Pa. 2006).

The level of protection afforded to the claimed trademark depends upon whether the challenged term is classified as “arbitrary,” “suggestive,” “descriptive” or “generic.” In Pennsylvania State University, supra, the Superior Court of Pennsylvania quoted federal precedent and described those four designations as:

...arbitrary (or fanciful) terms, which bear “no logical or suggestive relation to the actual characteristics of the goods;” suggestive terms, which suggest rather than describe the characteristics of the goods; descriptive terms, which describe a characteristic or ingredient of the article to which it refers, and generic terms, which function as the common descriptive name of a product class.” Pennsylvania State University, 706 A.2d at 868. See also, Checkpoint Systems, Inc. v. Check Point Software Technologies, Inc., 269 F.3d 270, 282 (3d Cir. 2001).

Arbitrary or suggestive marks are considered inherently distinctive and automatically qualify for trademark protection whereas descriptive marks are afforded such protection only where a “secondary meaning” is proven. Pennsylvania State University, supra. A generic term may not be' appropriated from the public domain for the exclusive use of one party, and as such, trademark protection is never extended to generic terms under federal law. Id. In determining whether a term is arbitrary, suggestive, descriptive or generic, the court must apply the “primary significance test” which requires the party asserting trademark protection to establish that “theprimary significance of the term in the minds of the consuming public is not the product but the producer.” Id., at n. 4.

The Scranton Times contends that the name “John Webster” is an arbitrary term that is inherently distinctive and automatically entitled to trademark protection. (See, plaintiff’s brief in support of petition for preliminary injunction, p.13.) (“For the reasons set forth below, the ‘John Webster ’ trade name is clearly an arbitrary trademark, and thus is entitled to the highest degree of protection.”) However, federal decisional precedent, including several holdings from within the Third Circuit, uniformly consider personal names and surnames to be “descriptive” terms that are afforded trademark protection only upon a showing of distinctiveness and secondary meaning. See, AFL Philadelphia, LLC v. Krause, 639 F. Supp. 2d 512, 526 (E.D. Pa. 2009); Lewis v. Marriott International, Inc., 527 F. Supp. 2d 422, 426 (E.D. Pa. 2007); Tillery, 437 F. Supp. 2d at 320-321; Castle Oil Corp. v. Castle Energy Corp. 1992 WL 394932 at * 11 (E.D. Pa. 1992). Accord, Pirone v. MacMillen, Inc., 894 F.2d 579, 583 (2d Cir. 1990); Suisman Shapiro, P.C. v. Suisman, 2006 WL 387289 at * 5 (D. Conn. 2006); DeClemente v. Columbia Pictures Industries. Inc., 860 F. Supp. 30, 43 (E.D. N.Y. 1994); V. LaRosa & Sons, Inc. v. DeRosa Cheese & Macaroni Co., Inc., 1986 WL 8699 at *3 (D. Neb. 1986). A personal name acquires secondary meaning when the name and the business it is associated with “become synonymous in the public mind and the secondary meaning submerges the primary meaning of the name as a word identifying a person, in favor of its meaning as a word identifying that business.” AFL Philadelphia LLC, 639 F. Supp. 2d at 526; Lewis, 527 F. Supp. 2d at 426; Tillery, 437 F. Supp. 2d at 321 (quoting 2 McCarthy on Trademarks and Unfair Competition at §13.3 (4th Ed.)).

“Proof of secondary meaning entails vigorous evidentiary requirements,” Tillery, supra (quoting Flynn v. A. K. Peters, Ltd., 377 F. 3d 13, 20 (1st Cir. 2004)), and requires the party claiming trademark protection to “not only show that it used the personal name as a trademark, but that a substantial portion of the consuming public associates the name specifically with its business.” AFL Philadelphia, LLC, supra. The United States Court of Appeals for the Third Circuit has developed the following non-exhaustive list of factors which may be considered in determining whether a term has acquired a secondary meaning:

(1) the extent of sales and advertising leading to buyer association; (2) length of use; (3) exclusivity of use; (4) the fact of copying; (5) customer surveys; (6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and, (11) actual confusion. E. T. Browne Drug Company v. Cococare Products, Inc., 538 F.3d 185, 199 (3d Cir. 2008); Commerce National Insurance Services. Inc., 214 F.3d at 438.

Based upon the evidence presented, the Scranton Times’ request for relief under the Lanham Act must likewise fail. First, as discussed in Section 11(B) above, the Scranton Times has not established that it owns the name “John Webster,” and as such, it cannot satisfy its burden of proof under federal law. See, Commerce National Insurance Services, Inc., 214 F. 3d at 437; Opticians Association of America, 920 F. 2d at 192. Second, the Scranton Times has not produced any evidence that the name “John Webster” and WEZX/Rock 107 have “become synonymous in the public mind” or “that, a substantial portion of the consuming public associates the name [John Webster] specifically with [WEZX/Rock 107].” AFL Philadelphia, LLC, supra; Tillery, supra. The Scranton Times has offered no customer testimony, nor has it introduced evidence of customer surveys. See, E. T. Browne Drug Company, 538 F.3d at 201 (“Browne’s failure to conduct a secondary meaning survey leaves it without evidence of any sort in this case of the secondary meaning of the term ‘Cocoa Butter Formula.’”); Tillery, 437 F. Supp. 2d at 321 (“No customer surveys or customer testimony are in evidence.”); Castle Oil Corp., supra at * 11 (“plaintiff introduced no evidence such as a survey of the views of purchasers and prospective purchasers.”). Although the Scranton Times did present evidence of extensive marketing of its morning radio show, any promotion of “John Webster” was always in conjunction with the “Daniels & Webster” team rather than as “John Webster” individually. See, E.T. Browne Drug Company, 538 F. 3d at 200 (“Browne has introduced no evidence indicating that it ever used ‘Cocoa Butter Formula’ as a stand alone term in marketing or packaging. Instead, it always used the term connected with the ‘Palmer’s,’ forming the phrase ‘Palmer’s Cocoa Butter Formula.”’). Additionally, the Scranton Times did not submit any evidence of actual confusion by the consuming public. See, Commerce National Insurance Services, Inc., 214 F. 3d at 440 (“CBI was unable to produce a single instance of actual confusion between it and CIA.”). As a result, the Scranton Times has not properly demonstrated that the name “John Webster” has acquired a secondary meaning under federal trademark law.

Accordingly, the Scranton Times has not established its right to enjoin Gasper and Entercom from using the name “John Webster” under federal or state trademark law. As stated in Section 11(B) above, partial injunctive relief will be granted as to the fictional characters portrayed and comedic material developed by Gasper on the “Daniels & Webster” show, as per Section 5.7 of the employment agreement. Since Pa. R.C.P. 1531(b) mandates the posting of bond or the deposit of legal tender whenever any form of injunctive relief is granted, and the limited relief granted has not been contested by Entercom or Gasper, the Scranton Times will be directed to post nominal bond or deposit nominal legal tender in the amount of $1.00. See, Pleasant Hills Const. Co., Inc. v. Public Auditorium Authority of Pittsburgh, 782 A.2d 68, 81 (Pa. Cmwlth. 2001) (affirming trial court ruling requiring nominal bond of $1.00), order rev’d on other grounds, 567 Pa. 38, 784 A.2d 1277 (2001); Christo v. Tuscany. Inc., 368 Pa. Super. 9, 12, 533 A.2d 461, 463 (1987) (trial court order requiring nominal bond of $1.00), appeal discontinued, 520 Pa. 601, 553 A.2d 964 (1988). An appropriate order follows.

ORDER

And now, April 10, 2010, upon consideration of the petition for preliminary injunction filed by plaintiff Scranton Times, LP, the defendants’ response thereto, the exhibits and memoranda of law submitted by the parties, and the evidence introduced during the hearing on April 7, 2010, and based upon the factual findings and legal conclusions set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. Plaintiff’s petition for a preliminary injunction is granted in part and denied in part;

2. Plaintiff’s petition for a preliminary injunction is denied to the extent that it seeks to enjoin defendants Entercom Wilkes Barre Scranton LLC and John Gasper from using the name “John Webster” in connection with defendant John Gasper’s employment as a radio program co-host with defendant Entercom Wilkes Barre Scranton, LLC commencing on Monday, April 12, 2010;

3. Plaintiff’s petition for a preliminary injunction is granted to the extent that it seeks to enjoin the defendants from using any fictional characters, comedic materials, musical parodies or other artistic product developed or broadcast by defendant John Gasper a/k/a John Webster, individually or jointly with Jeff Longaven a/k/a Jay Daniels, in connection with the “Daniels & Webster” show, including use of the comedic characters “Walter Nepaslcy,” “Jonesy,” “the Swami Salami,” “the Scranton Dopes” and “the Pop Flies”; and

4. Inasmuch as partial injunctive relief is being granted, albeit without affirmative opposition by the defendants, the plaintiff is directed to either post nominal bond in the amount of $1.00 pursuant to Pa. R.C.P. 1531(b)(1) or deposit with the clerk of judicial records legal tender in the amount of $ 1.00 in accordance with Pa. R.C.P. 1531(b)(2).

      . To the extent that the pertinent language of Section 5.7 is reasonably susceptible to different interpretations with respect to the Scranton Times’ exclusive ownership rights, that language is deemed to be ambiguous and must be construed against the Scranton Times as the drafter of the agreement. See, Rekun, supra; Vinikoor, supra; Lane, supra.

      . Entercom and Gasper do not appear to oppose such a partial grant of injunctive relief. Specifically, in their initial submission in opposition to the Scranton Times’ petition, Entercom and Gasper have represented:
      Entercom repeatedly has made clear to the Scranton Times that Entercom has no intention of using or allowing Mr. Webster to air any of the “characters” Mr. Webster portrayed on the Daniels & Webster show...Entercom has neither the need nor intention to allow Mr. Webster to portray those “characters” — and has made that point to the Scranton Times already.
      (Defendants’ opposition to petition for preliminary injunction, pp. 2-3).

      . In its post-hearing brief, the Scranton Times interchangeably r - quests relief based upon “unfair competition” and “trademark infringement.” (See, defendants’ brief in support of petition for preliminary injunction, pp. 7-8, 13-19.) The common law of trademarks is considered to be a component of the broader law of unfair competition. See,
        Thomson-Peorcelite Co. v. Harad, 356 Pa. 121, 124, 51 A.2d 605, 606 (1947). Since the parties’ submissions primarily address their dispute as a trademark issue, we will refer to the Scranton Times’ claim as trademark infringement for ease of reference.

      . In Conti v. Anthony’s Shear Perfection. Inc., 504 A.2d 1316 (Pa. Super. 1986), the Superior Court of Pennsylvania held that an unregistered or unregistrable name is entitled to common law protection if either (a) the name has earned a secondary meaning or (b) the similarity between the subject name and another name has the tendency to deceive the consuming public. Id., at 1320. Under the-latter standard, it is not necessary for the public to actually be deceived as a prerequisite to injunctive relief; rather, “[a]ll that is required is that the infringement should have a tendency to deceive.” Id. (quoting Shaw & Co. v. Pilling & Son, 175 Pa. 78, 87, 34 A. 446, 447 (1896)). Thus, if a petitioner can “establish that the similarity in names would have a tendency to deceive, [s]he would be entitled to injunctive relief.” Conti., supra at 1320 (concluding that owner of hair salon “Shear Perfection” could enjoin another salon named “Anthony’s Shear Perfection” from identifying his salon with the phrase “Shear Perfection”).
      Although the available record does not establish that the name “John Webster” is so closely identified with WEZX/Rock 107 as to warrant trade name protection, it is conceivable that the Scranton Times may ultimately be able to prove that the phrase “Daniels & Webster” has become synonymous with WEZX/Rock 107 such that Entercom’s marketing of a “Kman & Webster” show could be deemed strikingly similar to “Daniels & Webster” and arguably “have a tendency to deceive” the public and grant WILK “an unfair benefit from another’s trade.” Conti, 504 A.2d at 1320. However, Entercom has represented in its submissions that “Entercom has no intention of utilizing the names Daniels & Webster, D & W, or anything even remotely similar to them — nor has the Scranton Times even alleged that Entercom intends to do so.” (Defendants’ supplemental brief in further opposition to petition for preliminary injunction, p. 6.) (italics added.)


author: TERESHKO J.,

text:
    Foman v. Albert Einstein Medical Center

      Harry J. Oxman, for plaintiff.

      Frank H. Griffin, for defendants.
    March 23, 2011
   TERESHKO J.,

Plaintiff appeals from this court’s order dated August 11, 2010, granting defendants, Albert Einstein Medical Center, Albert Einstein Healthcare Network, Barry Freedman, James McCafferty, Russell Jones, and Christopher Brown’s (collectively, “defendants”) preliminary objections dismissing plaintiff’s complaint.

FACTUAL BACKGROUND

On November 26, 2007, defendant Barry Freedman, President of Albert Einstein Medical Center, received a threatening letter in his office, dated November 14, 2007 and postmarked November 19, 2007. (Complaint, ¶18) The letter, which included the Social Security numbers of Freedman and seven (7) other employees, stated that the author had worked in the file room for seven years, but was fired due to racial hatred. (Complaint, Exhibit “A”) It was signed “SF.” (Id.) In the letter, the author stated that they knew the names, addresses and Social Security numbers of eight (8) employees of Albert Einstein. (Plaintiff’s response to defendants preliminary objections, Exhibit A). The letter listed their names and Social Security numbers and threatened misuse of this information.

An investigation conducted by Russell Jones and Christopher Brown, Director and Assistant Director of the Department of Protective Services, respectively, and James McCafferty, an investigator for the department, concluded that the suspected author of the letter was plaintiff, Stephanie Foman. (Complaint, ¶19-21) Plaintiff was employed by Albert Einstein Medical Center and Albert Einstein Healthcare Network for approximately eight (8) years prior to her termination on September 14, 2007. (Complaint, ¶14-15)

Thereafter, on or about December 1, 2007, James McCafferty contacted the Northwest Detective Bureau of the Philadelphia Police Department to request that the Bureau conduct an independent investigation to determine the author of the letter and if criminal charges against the author were warranted. (Complaint, ¶21) The Northwest Detective Bureau declined to investigate further. Id. Approximately four (4) days later, Russell Jones met with Assistant District Attorney, Andrew M. Carobus, to request an investigation by the Philadelphia Police Department. (Complaint, ¶21) When communicating with the Detective Bureau and the District Attorney’s Office, employees of Einstein’s Protective Services Department expressed their suspicions that Stephanie Foman authored the letter. (Defendants’ preliminary objections, pg. 2)

The matter was assigned to the Major Crimes Unit of the Philadelphia Police Department. The Major Crimes Unit obtained a search warrant of Ms. Foman’s residence as well as a warrant for her arrest. (Complaint, ¶23-24) A search of Foman’s home was conducted on January 14, 2008. (Complaint, ¶24)

On January 22, 2008, Foman was charged with making terroristic threats and identity theft. (Defendants’ preliminary objections, Exhibit 3) At Foman’s preliminary hearing before the Elonorable Nazario Jimenez, Jr., all charges were held for trial in Philadelphia Municipal court. (Id.) Foman was subsequently convicted in Philadelphia Municipal court in February, 2009 of both charges by Honorable Thomas Gehret. (Defendants’ Id.) Foman appealed the convictions to the Philadelphia Court of Common Pleas and requested a de novo trial. At the subsequent trial before the Honorable Joyce Eubanks in the Philadelphia Court of Common Pleas, Foman was later acquitted of these charges. (Id.)

Plaintiff Stephanie Foman thereafter commenced this action against defendants, Albert Einstein Medical Center, Albert Einstein Healthcare Network, Barry Freedman, James McCafferty, Russell Jones, and Christopher Brown (hereinafter collectively, “defendants”), by filing her complaint on January 11,2010. Plaintiff’s complaint alleges counts for malicious prosecution and infliction of emotional distress.

On June 16, 2010, defendants filed preliminary objections to plaintiff’s complaint arguing that plaintiff’s complaint is legally insufficient pursuant to Pa.R.C.P. 1028(a)(4). (Defendants’ preliminary objections, pg. 1). Defendants alleged that plaintiff could not prove malicious prosecution because defendants did not institute criminal proceedings against her. (Defendants’ preliminary objections, ¶3) Further, plaintiff was convicted in Municipal court on February 20, 2009, demonstrating that defendants had probable cause to suspect plaintiff was the author of the letter. (Defendants’ preliminary objections, ¶4)

Defendants’ preliminary objections also asserted that plaintiff could not prove intentional infliction of emotional distress because defendants’ conduct did not rise to the level of outrageousness which is an element of required to be proven under the law. (Defendants’ preliminary objections, ¶6) Additionally, defendants asserted that plaintiff’s negligent infliction of emotional distress claim must fail because Pennsylvania does not permit negligence claims relating to the identification of criminal suspects to law enforcement. (Defendants’ preliminary objections, V)

On June 30, 2010, plaintiff filed her response to defendants’ preliminary objections.

By order dated August 11, 2010, this court granted defendants, Albert Einstein Medical Center, Albert Einstein Healthcare Network, Barry Freedman, James McCafferty, Russell Jones, and Christopher Brown’s (collectively, “defendants”) preliminary objections.

On August 26, 2010, plaintiff filed her notice of appeal from the August 11, 2010 order and subsequently issued her 1925 statement of errors alleged on appeal.

The sole issue before this court is:

Whether this court erred when it sustained the defendants’ preliminary objections and dismissed the plaintiff’s complaint on the basis of legal insufficiency where plaintiff has failed to prove a prima facie case for malicious prosecution, intentional infliction of emotional distress or negligent infliction of emotional distress.

LEGAL ANALYSIS

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the plaintiff’s complaint. Smith v. Wagner, 588 A.2d. 1308 (Pa. Super. 1990). The standard of review in granting preliminary objections is that “all material facts set forth in the complaint, as well as all inferences reasonably deductible therefrom, are admitted as true.” Youndt v. First Nat’l Bank, 868 A.2d 539, 542 (Pa. Super. 2005). “A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged.” Petsinger v. Dept. of Labor & Indus., 988 A.2d 748, 753 (Pa. Cmwlth. 2010) (citing Africa v. Horn, 701 A.2d 273 (Pa. Cmwlth. 1997)).

On an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court’s scope of review is plenary, allowing it to review the whole record. Morley v. Gory, 814 A.2d 762, 763 (Pa. Super. 2002) (citing Ham v. Sulek, 620 A.2d 5, 8 (Pa. Super. 1993). “In some contexts, when issues of fact are raised by preliminary objections, the trial court may receive evidence by depositions or otherwise.” Morley, 814 at 763 (quoting Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994). “However, preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer.” Id.

Pennsylvania Rule of Civil Procedure 1028(a)(4) establishes the right of a party to file preliminary obj ections to any pleading on the grounds of legal insufficiency. On appeal, plaintiff contends that this court erred in sustaining the defendants’ preliminary objections and dismissing plaintiff’s complaint.

Plaintiff’s complaint alleges malicious prosecution and both intentional and negligent infliction of emotional distress.

In order to support a claim for malicious prosecution, plaintiff must prove defendant instituted proceedings against her (1) without probable cause, (2) with malice, (3) and the proceedings must have terminated in favor of the plaintiff. Kelley v. General Teamsters, Chauffeurs, and Helpers, Local Union 249, 518 Pa. 517, 520-21, 544 A.2d 940, 941 (1988).

Plaintiff’s claim for malicious prosecution must ultimately fail because defendants did not institute proceedings against her without probable cause.

Pennsylvania has followed the Restatement (Second) of Torts on the law of malicious prosecution. Bradley v. Gen. Accident Ins. Co., A.2d 707, 711 (Pa. Super. 2001). See Gallucci v. Phillips & Jacobs, Inc., 614 A.2d 284, 290 (Pa. Super. 1992); Shelton v. Evans, 437 A.2d 18, 20 (Pa. Super. 1981). Restatement (Second) of Torts §653, comment explains the elements needed to sustain a cause of action for malicious prosecution:

A private person who gives to a public official information of another’s supposed criminal misconduct, of which the official is ignorant, obviously causes the institution of such subsequent proceedings as the official may begin on his own initiative, but giving the information or even making an accusation of criminal misconduct does not constitute a procurement of the proceedings initiated by the officer if it is left entirely to his discretion to initiate the proceedings or not. When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable...even though the information proves to be false and his belief was one that a reasonable man would not entertain. Bradley v. Gen. Accident Ins. Co., 778 A.2d 707, 711 (Pa. Super. 2001), citing, Restatement (Second) of Torts §653, comment G.

The Restatement distinguishes an individual’s offer of information in good faith leading to the procurement of criminal proceedings from a situation in which a defendant either provides knowingly false statements to a public official, or the defendant unduly pressures an official to institute proceedings, depriving the official of the use of discretion. Id. The main inquiry must be whether the official retained independent discretion in the decision to institute proceedings against the plaintiff.

In the case at hand, defendants did not institute proceedings against the plaintiff as required to state a claim for malicious prosecution. Defendants conducted an internal investigation following defendant Freedman’s receipt of the threatening letter and reported their findings to the Northwest Detective Bureau of the Philadelphia Police Department and Assistant District Attorney, Andrew Carobus. Carobus assigned the case to the Major Crimes Department of the Philadelphia Police Department, and, after independent investigation, the department determined that charges of making terroristic threats with the intent to terrorize another and identity theft were warranted. Plaintiff does not offer any evidence that defendants pressured Carobus or the Police department in any way or compromised their independent discretion in deciding whether criminal charges against plaintiff were warranted. Additionally, plaintiff also does not offer any evidence that defendants provided knowingly false statements to Carobus or the police department. The information provided was based upon defendants’ internal investigation, and the public officials responsible for deciding to criminally charge plaintiff were entitled to accept or reject the information as they deemed proper under the circumstances.

Second, plaintiff’s claim for malicious prosecution must fail because defendants had probable cause to request that the Commonwealth initiate an investigation of plaintiff. Probable cause is “a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 314, 89 A.2d 809, 811-12 (1952). The court in Byers v. Ward further elaborates, “[wjhile the return of a true bill of indictment by the grand jury may constitute prima facie evidence of probable cause, the corollary of that legal principle is that an acquittal is not sufficient in itself to establish want of probable cause.” Byers v. Ward, 368 Pa. 416, 421, 84 A.2d 307, 310 (1951). The Restatement (Second) ofTorts § 667, “Effect of Conviction or Acquittal,” succinctly states “The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.”

Following an internal investigation, defendants possessed a reasonable ground of suspicion that plaintiff, a recently terminated file room employee with the same initials as the author, sent defendant Freedman the letter. Based upon the information defendants provided and the Major Crimes Department’s independent, five-week investigation, law enforcement and the District Attorney’s Office determined that charges against plaintiff were warranted. Thereafter, Judge Nazario Jimenez, Jr. found that there existed a prima facie case for the criminal charges after hearing the evidence at plaintiff’s preliminary hearing. Judge Jimenez heard evidence and held all the charges for trial in Municipal Court. Even though plaintiff’s convictions were subsequently overturned in the Philadelphia Court of Common Pleas, she was found guilty of identity theft and making terroristic threats in Municipal Court in February, 2009 by Judge Gehret, defendants’ reasonable suspicion that plaintiff committed a crime is adequately supported by plaintiff’s arrest following apolice investigation, the holding over of charges at the preliminary hearing and the District Attorney’s successful prosecution of plaintiff at the Municipal Court level. Therefore, plaintiff’s malicious prosecution must fail.

Analogous to plaintiff’s claim for malicious prosecution, her claim for intentional and negligent infliction of emotional distress must also fail.

Pennsylvania courts have looked to the Restatement (Second) of Torts §46(1) for guidance on intentional infliction of emotional distress. The 'Restatement provides, “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” The prohibited conduct has been described as that which is “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 community.” Restatement (Second) of Torts §46, comment d. Where the allegedly tortious conduct described in the complaint is not sufficiently outrageous and extreme, the court must dismiss the claim as a matter of law. Keim v. County of Bucks, 275 F.Supp.2d 628, 635-36 (E.D.Pa. 2003). Cases where courts have found that the conduct of defendants were sufficiently outrageous involved acts of fraud or concealment. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd.Cir. 1979); Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa.Super. 1981); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 818, (1980).

Plaintiff’s complaint falls well short of demonstrating the requisite level of “outrageous conduct” and therefore must be dismissed.

The November 20071Letter was authored by a terminated file room employee with the initials “SF.” Plaintiff Stephanie Foman was employed by Albert Einstein Medical Center and Albert Einstein Healthcare Network for approximately eight (8) years prior to her termination on September 14, 2007, which is just two (2) months prior to the November 14,2007 letter. The conduct of defendants, in reporting this letter to law enforcement and conveying that they suspected Foman was the author of the letter, does not constitute “outrageous conduct.”

In response to a letter threatening to disclose and misuse employee Social Security numbers, defendants conducted an independent investigation to protect their employees. Conducting their investigation defendants determined that plaintiff was the suspected author of the letter. Defendants then reported their investigation over to the Major Crimes Unit of the Philadelphia Police Department indicating that they suspected plaintiff and asked that the Philadelphia Police Department to conduct further investigation. Defendants did not falsify information to law enforcement or attempt to perpetrate a fraud in conducting their investigation.

The Philadelphia Police Department then conducted its investigation and subsequently arrested plaintiff. Although plaintiff was successful at her second criminal trial, the Philadelphia Police Department had sufficient evidence to charge her with the aforementioned crimes, Judge Jiminez found there to be a prima facie case that plaintiff committed these crimes at the preliminary hearing and Judge Gehret found that plaintiff committed these crimes beyond a reasonable doubt in plaintiff’s municipal court trial.

In light of these facts, it was reasonable for defendants to conduct an investigation to protect its employees from the threat of identity theft and to turn the findings of their investigation over to the Philadelphia Police Department for further investigation. The actions of the police department and the court system add further credence to defendants’ contention that their conduct was not outrageous to sustain a claim for intentional infliction of emotional distress.

It is also noteworthy to mention that while plaintiff nominally alleges that she suffers from permanent “nightmares, sleeplessness, nausea, vomiting, [and] headaches,” she has previously admitted that she has never sought nor received medical treatment for her purported conditions, has never been hospitalized, nor required surgery and has not incurred any medical bills from the injuries as a result of defendants’ conduct. Thus, plaintiff also lacks any evidence which would medically document her alleged physical symptoms for establishing bodily harm from defendants’ actions.

Lastly, this court also found that plaintiff’s negligent infliction of emotional distress claim is insufficient as a matter of law.

To recover damages for emotional distress, plaintiff must prove: 1) that the defendant was negligent, 2) the defendant’s negligence placed the plaintiff in danger of physical impact, 3) the plaintiff suffered emotional distress as a result of the defendant’s conduct, and 4) physical injury or physical impact must be present in order to recover. Pa. SSJI (Civ) 3.23, Simmons v. Pacor, Inc., 543 Pa. 664,674 A.2d 232,238 (1996).

The plaintiff’s negligent infliction of emotional distress claim is premised on her theory that defendants failed to conduct a proper investigation of the November 2007 letter and improperly reported that plaintiff was the letter’s author to the police.

Pennsylvania law does not permit recovery for the negligent reporting of information to law enforcement. In Davis v. Equibank, 603 A.2d 637 (Pa. Super. 1992), the Pennsylvania Superior Court considered whether the plaintiff could recover for “negligent identification” of him as a suspected bank robber. Id. at 641. The court declined to recognize such a cause of action because the “public interest in investigation of crime outweighs the recognition of a negligence.” Id.

The Pennsylvania Supreme Court affirmed the holding in Davis in Jaindl v. Mohr, 541 Pa. 163, 168, 661 A.2d 1362, 1365 (1995), which is factually similar to the case sub judicie.

In Jaindl, plaintiff’s employer contacted the Pennsylvania State Police with information about stolen funds and the results of an internal investigation, including the employer’s suspicions about the probable perpetrator. Id. at 164-65,1363. The court concluded that plaintiff’s employer was justified in conducting an investigation and relaying their suspicions about plaintiff to law enforcement. Id. at 168,1365. In this same case, the Superior Court refused to recognize a cause of action for negligent identification. Id. at 167,1364.

According to Jaindl and Davis, plaintiff’s claim cannot be maintained. Regardless of whether the claim is for negligence, negligent identification, negligent procurement of criminal proceedings, or negligent infliction of emotion distress, the mere allegation of negligent reporting of information to police regarding a potential criminal suspect is not a recognized claim under Pennsylvania law. Accordingly, plaintiff’s negligent infliction of emotional distress claim is legally incompetent.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its decision to grant defendants, Albert Einstein Medical Center, Albert Einstein Healthcare Network, Barry Freedman, James McCafferty, Russell Jones, and Christopher Brown’s (collectively, “defendants”) preliminary objections to the complaint of Stephanie Forman be affirmed.

      . The second element of a claim for malicious prosecution, malice, can be inferred from lack of probable cause. Hugee v. Pennsylvania R.R. Co., 376 Pa. 286,291,101 A.2d 740, 743 (1954).

        . Restatement (Second) of Torts § 46 has never been formally a - opted in Pennsylvania, but our Supreme Court in Taylor v. Albert Einstein Med. Center, 562 Pa. 176, 754 A.2d 652 (2000), cited the Restatement as providing the minimum elements necessary to establish the cause of action.