author: WETTICK JR., J.,

text:
    Melvin v. Doe

      C.P. of Allegheny County,
    no. GD99-10264.

      John R. Orie Jr. and Robert O. Lampl, for plaintiff.

      Ronald D. Barber and Witold J. Walczak, for defendants.

      Ann Beeson and Christopher A. Hansen, of counsel to defendants.
    November 15, 2000
   WETTICK JR., J.,

The issue that I address in this opinion and order of court is whether the First Amendment protects the anonymity of the person or persons who anonymously published an allegedly defamatory statement on an Internet website after the plaintiff has made a prima facie showing that the statement was false, that the statement was defamatory, and that she has sustained harm that would support a monetary award.

I.

This defamation action was instituted against an unknown person or persons who published the following statement on a website posted on America Online:

“Despite being prohibited from engaging in political activity, a couple of judges have been keeping themselves pretty busy recently with politics. Judge Joan Orie Melvin has been lobbying the Ridge administration on behalf of a local attorney seeking the appointment by Governor Ridge to fill the vacancy on the Allegheny County Court of Common Pleas created by the mandatory retirement earlier this month of Judge Robert Dauer, now a senior judge. Dauer has also been actively pushing for this attorney’s appointment. The last GS99 heard, this attorney is on the governor’s short-list of candidates. Let’s hope that the gov does the right thing and appoints somebody better qualified. Shame on Orie Melvin and Dauer — this is exactly the kind of misconduct by our elected officials that the residents of Allegheny County will not stand for anymore . . . and a good reason why judges should be held accountable for their actions and remembered at the polls at retention time.”

In response to plaintiff’s discovery requests designed to obtain the identity of the person or persons who published the statement, the Doe defendant(s) retained counsel to provide a defense to plaintiff’s lawsuit. Counsel for the Doe defendants have challenged any discovery that would identify the person or persons who published the statement on the ground that the First Amendment permits anonymous political speech.

I agreed with counsel for defendants that plaintiff should not be permitted to engage in discovery to learn the identity of the Doe defendants until the Doe defendants had an opportunity to establish that, as a matter of law, plaintiff could not prevail in this lawsuit. Consequently, I stayed the discovery which plaintiff sought in order to give the defendants the opportunity to show that plaintiff could not make out a prima facie case. In a separate memorandum and order of court, I am denying defendants’ motion for summary judgment because plaintiff has produced evidence which would support a finding that the statement was made, the statement is false, the statement is defamatory, and she has sustained actual harm. (Defendants did not through preliminary objections — or otherwise — raise the argument that the statement is not defamatory.)

Defendants also requested that I bifurcate the issue of defendants’ states of mind from all other issues, that I stay any discovery on defendants’ states of mind until plaintiff has prevailed before a jury on all other issues in the case, and that I enter a protective order preventing plaintiff from conducting any discovery to determine the identity of the Doe defendants’ at least until plaintiff has prevailed on all issues except defendants’ states of mind. I denied defendants’ motion to bifurcate the issues in this fashion because the jury, in deciding whether plaintiff has met her burden of proving that the statements are false, needs to know the identity of the persons who made the publication. For example, it would make a significant difference to the jury whether John Doe is a prisoner whom plaintiff sentenced to a twenty-year jail term or a member of the governor’s staff.

This is not a case in which the defendants are basing their defense on the testimony of a witness, whom they have identified, who allegedly participated in, observed, or was told by plaintiff of her lobbying activities. To the contrary, defendants have not identified any source. Thus, if the case was bifurcated, the defense of the defendants on the issue of truth would be that plaintiff has not met her burden of proving that the statements of her unknown accusers are false. Plaintiff, if not given the opportunity to confront her accusers, can only deny the charges and hope that this is sufficient to persuade the jury.

Also, plaintiff needs to know the identity of the Doe defendants prior to incurring the expenses and other burdens of a trial, because it is questionable whether plaintiff would wish to proceed with a trial if John Doe turned out to be, for example, an inmate incarcerated pursuant to a trial before plaintiff. In this instance, it is unlikely that any judgment that she obtained would be satisfied. Furthermore, her name would be “cleared” through the disclosure that the publication was made by someone whom she had sentenced to jail.

II.

Under the Pennsylvania Rules of Civil Procedure, plaintiff is entitled to depose third parties to obtain the identity of the person or persons who published the statement unless this information is privileged under the First Amendment. This information is highly relevant. Rule 4003.1 permits discovery of any matter, not privileged, which is relevant to the subject matter invoked in the pending litigation, subject to Rules 4003.2 to 4003.5 and Rule 4011. Rules 4003.2 to 4003.5 have nothing to do with the discovery which plaintiff seeks. Rule 4011 reads as follows:

“No discovery or deposition shall be permitted which

“(a) is sought in bad faith;

“(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;

“(c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6; or

“(d) Rescinded.

“(e) would require the making of an unreasonable investigation by the deponent or any party or witness.

“(f) Rescinded.”

Rule 4011(a) would apply if the only purpose of this lawsuit is to harm the defendants without a trial. However, this rule does not apply if the purpose of the lawsuit is to restore plaintiff’s good name by showing that she never engaged in the conduct described in the publication. There is no evidence that would permit me to find that plaintiff is pursuing this lawsuit for any reason other than to restore her good name.

Rule 4011(b) bars only discovery that would cause unreasonable embarrassment, oppression, or burden. Rule 4011(b) does not apply because (1) plaintiff has made a prima facie showing that she has a valid cause of action, (2) plaintiff cannot pursue this cause of action without the discovery that she seeks, and (3) the discovery request does not impose unreasonable burdens on any third persons.

III.A.

In support of their request for a protective order, defendants argue that anonymous political speech is protected by the First Amendment. Without anonymity, a speaker would be deterred from expressing controversial ideas or criticizing powerful figures. For example, an employee of a company would be reluctant to establish a website that encourages other employees to form a union if anonymity was not guaranteed. Similarly, without anonymity, a teacher in a unionized school district may be reluctant to establish a website which describes the weaknesses of the school system and proposes publicly funded private schools through vouchers furnished to parents.

Federal case law protects anonymity for political speech that is not actionably false. Thus, the First Amendment would bar a state court from allowing discovery compelling any third person to identify the publishers of the statements described in the above examples. However, case law does not extend First Amendment protections to anonymous speech that is defamatory, if untrue.

In McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995), the court ruled that an Ohio statute which prohibited the distribution of anonymous campaign literature was a law abridging freedom of speech within the meaning of the First Amendment. The Ohio statute applied to any unsigned documents designed to influence voters in an election. Ohio contended that the legislation was justified by two important and legitimate state interests: (1) an interest in providing the electorate with relevant information and (2) an interest in preventing fraudulent and libelous statements. The court summarily rejected the first justification for the law, that the electors should have sufficient information in order to evaluate the document’s message, because this would be no different from a requirement that a writer make statements or disclosures that the writer would otherwise omit. The court recognized that people can see that the writing is anonymous and evaluate its anonymity along with its message.

As to the state’s interest in preventing fraudulent and libelous statements, the court stated:

“The state’s interest in preventing fraud and libel stands on a different footing. We agree with Ohio’s submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequence for the public at large.” Id. at 1520.

However, the court found that this legislation was both (1) overly broad because it “encompasses documents that are not even arguably false or misleading [and] that present neither a substantial risk of libel nor any potential appearance of corrupt advantage” (id. at 1521) (footnotes omitted) and (2) unnecessary because Ohio already has criminal laws that make it illegal for any person during the course of a campaign to publish, post, circulate, distribute or otherwise disseminate a false statement, either knowing the same to be false or acting with a reckless disregard of whether it is false or not. The court said that to the extent that the provisions of the Election Code may be underinclusive, “Ohio courts also enforce the common-law tort of defamation.” Id. at 1521 n.13.

The court concluded its opinion by recognizing the following: anonymous speech is “an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.” At the same time, the “right to remain anonymous may be abused when it shields fraudulent conduct.” In this instance, the state “may, and does, punish fraud directly. But it cannot punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” Id. at 1523.

In Talley v. State of California, 80 S.Ct. 536 (1960), the court considered the constitutionality of the provisions of a Los Angeles city ordinance which prohibited any person from distributing any handbill that did not set forth the name of the writer/sponsor. The constitutionality of the ordinance was challenged by a person found guilty of violating the ordinance for distributing handbills that did not comply with the ordinance. These handbills encouraged readers to boycott certain merchants who did not offer equal employment opportunities to minorities. The Supreme Court struck down the ordinance because identification requirements tend to restrict freedom of expression. In response to the City of Los Angeles’ argument that the ordinance provides a way to identify those responsible for fraud, false advertising and libel, the court stated:

“Yet the ordinance is in no manner so limited, nor have we been referred to any legislative history indicating such a purpose. Therefore, we do not pass on the validity of an ordinance limited to prevent these and other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.” Id. at 538.

Both McIntyre and Talley suggest that the First Amendment protections afforded the anonymous speaker do not extend to speech that may be false and injurious. If a plaintiff who has been harmed by allegedly defamatory anonymous speech cannot use the tools provided under state law to learn the identity of the speaker, anonymous Internet speech, no matter how false and injurious, would be outside the scope of civil and criminal law for all practical purposes. Such a result is inconsistent with the statements in the McIntyre opinion that Ohio has means other than a blanket prohibition of anonymous political speech to protect its interests against the making and disseminating of false statements.

Defendants correctly state that the United States Supreme Court has never considered the issue of whether the First Amendment imposes restrictions on the ability of a public figure allegedly injured through an allegedly defamatory statement to utilize state law, including the rules of procedure governing discovery and the laws governing the issuance of subpoenas, to learn the identity of the publisher. Defendants next state that I am writing on a clean slate. Thus, I should protect the anonymity of a publisher of an anonymous Internet publication criticizing a public official in the performance of her official conduct on the basis of the argument that the harm that may occur from muzzling legitimate political speech outweighs the harm that may flow from the absence of an adequate civil remedy for deliberate falsehoods. However, the slate is not clean; I am writing on a slate that provides First Amendment protections to persons criticizing public officials only where the protections do not interfere with the underlying purposes of state tort law.

I agree with defendants that the courts have never considered what constitutional protections should be afforded anonymous speech that could play an important role in the political life of this country. By the time the First Amendment was applicable to state libel laws, anonymous political speech played almost no role in the political life of this country. The national media (large newspapers, national magazines, television and radio) dominated public political discussion. Consequently, the issues that have been litigated involve the manner in which the First Amendment’s protections of speech and the press limit the power of the states to award damages under their libel laws. In response to a relatively new phenomenon in which publications were distributed throughout each of the 50 states, the United States Supreme Court was asked to place limitations on state tort law in order to afford adequate breathing room for the good faith coverage of controversial events. Otherwise, jurors in Alabama who were upset with news coverage of events within Alabama would be in the position to dampen speech by punishing the publisher of a national publication that might actually be true, or that the publisher reasonably believed to be true, through large verdicts permitted under state civil actions.

In New York Times Co. v. Sullivan, 84 S.Ct. 710 (1964), the Supreme Court imposed the requirement that the plaintiff prove actual malice in a libel action brought by a public official. In Curtis Publishing Co v. Butts, 87 S.Ct. 1975 (1967), the court extended the New York Times ruling to public figures. In Gertz v. Robert Welch Inc., 94 S.Ct. 2997 (1974) the court held that as long as they do not impose liability without fault, the states may define an appropriate standard of false injury where the plaintiff is a private individual. However, states may not award damages other than compensation for actual injury unless liability is based on a showing of knowledge of falsity or reckless disregard for the truth. In Bose Corp. v. Consumers Union of United States Inc., 104 S.Ct. 1949 (1984), the court held that the appellate courts, rather than reviewing the judgment below only for clear error, must exercise independent judgment and determine de novo whether the record establishes actual malice with convincing clarity. In Philadelphia Newspapers Inc. v. Hepps, supra, 106 S.Ct. 1558, the court held that where the plaintiff is a private figure, but the speech is of public concern, the plaintiff must show that the statement is false; the burden of proving truth cannot be assigned to the defendant.

Defendants correctly state that the New York Times line of cases addresses publishers’ concerns that they will be exposed to financial harm for criticizing public officials in their performance of public functions. This case law provides protection to the press and the media by making it more difficult for public officials to recover damages. As a result of the New York Times v. Sullivan line of cases, the press and the media (according to defendants) are not punished until the public official or public person has established that the statements are false and were maliciously made.

Defendants argue that while the New York Times v. Sullivan line of cases protects the national media, it does little to protect the Internet speaker. According to defendants, the punishment that the anonymous Internet speaker most fears is not an award of money damages but, rather, retribution at the hands of third persons (economic retaliation/social ostracism). This punishment takes place as soon as the speaker is forced to give up his or her anonymity. The punishment occurs regardless of the outcome of the case. In the present case, for example, the punishment which the speaker fears may be inflicted even though the jury ultimately determines that the evidence does not support a defamation finding. While it is the large verdicts that chill the national media, in most instances the plaintiff who brings a libel action against an anonymous Internet speaker never anticipates that she will recover any damages that are awarded.

Defendants correctly state that the thresholds that I imposed before considering plaintiff’s discovery request — that the complaint on its face set forth a valid cause of action and that the plaintiff offer testimony that will permit a jury to award damages — can be easily met. These thresholds are met (1) if the plaintiff establishes that the publication appeared on the Internet and that the statements within the publication, if false, support a defamation recovery, and (2) if the plaintiff testifies that the statements are untrue and that she has experienced emotional distress as the result of the statements.

Defendants contend that the Internet, if given adequate First Amendment protection, can change the landscape of public life in this country. A person no longer needs access to a large newspaper, a nationally-circulated magazine, or a radio or television station to reach a large audience. Through the use of a website, a publisher may furnish information to millions of people. Any person or organization with a computer connected to the Internet can now publish information. See Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2335 (1997). (“From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers.”)

According to defendants, a cornerstone of political speech on the Internet is the protection of the speaker’s anonymity. This is the first time persons without power or funds can reach thousands or even millions of people. Anonymous Internet speakers, unlike the national media, are vulnerable because they lack power or money. Without anonymity, speakers will be less willing to express controversial positions because of fears of reprisal. The speaker who reports that her employer is dumping toxic waste into a river may lose her job if her identity is discovered. If the identity is discovered of the speaker who criticizes a school superintendent on the ground that he is a political hack who hires teachers on the basis of “who they know” rather than competency, life at school for this speaker’s children, may become most unpleasant.

Defendants contend that I am writing on a clean slate because this litigation involves a new manner of communicating political thought. When the national media became the public’s primary source of political discussion, the courts developed new rules that prevented state civil libel actions from chilling this political speech. These new rules do not work for anonymous Internet political speech. Furthermore, public figures who are the subject of anonymous Internet speech do not need the protections of state libel laws because anonymous Internet speech is viewed with suspicion. Consequently, the courts need to do for Internet political speech what they did for the national media, namely to develop standards that will adequately protect this new form of political speech.

I do not agree with defendants’ argument that the New York Times v. Sullivan line of cases supports the proposition that state interests in punishing defamatory speech give way to the First Amendment whenever state libel law will have a significant chilling effect on political speech. In New York Times v. Sullivan, the New York Times argued that state libel laws will have an impermissible chilling effect on the First Amendment unless the court bars any libel actions based on criticism of official conduct. Alternatively, the New York Times proposed that recovery be limited to actual proved financial injury and/or a requirement of actual malice. A majority of the court rejected each argument other than actual malice. Lewis, New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment, ” supra, 83 Colum.L.Rev. at 607. Thus, the New York Times line of cases provides First Amendment protection only where the protection does not significantly interfere with the underlying purposes of state libel law.

In New York Times v. Sullivan, the concurring opinions of both Mr. Justice Black (with whom Mr. Justice Douglas concurred) and Mr. Justice Goldberg (with whom Mr. Justice Douglas concurred in the result) recognized that the standards of the majority opinion stopped short of providing protection to criticism that may, in fact, be either true or at least made in good faith. The writers of these opinions proposed that the First Amendment be construed to give the press an absolute immunity from criticism of the manner in which public officials perform their public duties. Otherwise, state libel law will deter the press from criticizing official conduct because the public official “can resort to friendly juries to forestall criticism of their official conduct.” 84 S.Ct. at 738 (Goldberg, J. concurring). Mr. Justice Black suggested that the record does not indicate that any different verdict would have been rendered by the Alabama jury if the court’s charge had included the new “legalistic words” which the majority proposed. Id. at 734 (Black, J. concurring).

Mr. Justice Goldberg recognized that many legislators, judges, and executive officers are clothed with absolute immunity against liability for defamatory words uttered in the discharge of their public duties because of the costs and burdens of a trial and because a jury, even if acting in good faith, may return a mistaken verdict. Malice is an illusive concept that may in the mind of a jury add little to the requirement of proving falsity. In his concurring opinion, Mr. Justice Goldberg stated:

“It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech, which all agree is constitutionally protected, can be effectively safeguarded by a rule allowing the imposition of liability on a jury’s evaluation of the speaker’s state of mind. If individual citizens may be held liable on damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. ... To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect ‘the obsolete doctrine that the governed must not criticize their governors.’ ” Id. at 136-37 (Goldberg, J. concurring), (citation omitted)

Mr. Justice Goldberg construed the First Amendment by giving priority to the freedom of speech; he used the standard that where public matters are involved, the doubt should be resolved in favor of expression rather than against it. Id. at 735-36.

The arguments of Mr. Justice Black and Mr. Justice Goldberg in favor of a construction of the First Amendment that furnishes immunity for criticism of official conduct of a public official and their criticism of the majority opinion for, instead, adopting a malice standard, are very similar to the arguments that defendants make in this case. Even though it is generally recognized that state libel laws, even with the New York Times v. Sullivan limitations, discourage the media from good faith criticism of public officials, the courts have not moved in the direction of providing the absolute immunity that defendants propose in this litigation. See Harte-Hanks Communications Inc. v. Connaughton, 109 S.Ct. 2678, 2696 (1989). (“We have not gone so far, however, as to accord the press absolute immunity in its coverage of public figures or elections. If a false and defamatory statement is published with knowledge of falsity or a reckless disregard for the truth, the public figure may prevail.”) See Lewis, New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment, ” supra, for an explanation as to why the New York Times standards have not provided adequate protection for political speech. Also see Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U.Chi.L.Rev. 782, 802 (1986) (“It is doubtful, however, that the total situation is improved by the adoption of the actual malice rule.”).

In the New York Times v. Sullivan line of cases, the Supreme Court balanced the First Amendment protections with the purposes of state libel laws in a way that provided increased protection to the press while preserving the underlying purposes of state libel laws. There is not an equivalent balancing for anonymous Internet speech. If the First Amendment does not permit a plaintiff who is a public figure from learning the identity of the publisher, state libel actions will not be available to discourage anonymous publishers from publishing statements known to be false and made for the purpose of injuring or harming a public official’s reputation and/or exposing the public official to public hatred, contempt, and ridicule. Alternatively, once the public official has met the thresholds that I have established, the Internet speaker will lose his or her anonymity even though a jury may ultimately find that (1) the statements were true (or otherwise made in good faith) or (2) the harm rises only to a level of public embarrassment or annoyance.

In choosing between these two alternatives, I must recognize state tort law because there is no case law which would suggest that the First Amendment leaves the states without any meaningful tort law to discourage the publication of defamatory statements concerning public officials.

First Amendment anonymity claims have been raised in libel litigation against the press. There is an established line of cases that has required disclosure of the sources of the criticism of a public figure where necessary for a public figure to pursue a libel action. The issue has arisen where the public official brings a defamation action against the publisher. The publisher defends on the grounds of truth and/or good faith. The public official seeks the publisher’s alleged sources to meet his or her burden of proving actual malice. The argument of the press is that the free flow of news obtainable only from anonymous sources is likely to be deterred absent complete confidentiality.

This argument was rejected by the United States Supreme Court in Branzburg v. Hayes, 92 S.Ct. 2646 (1972), where the court held that a reporter does not possess a First Amendment privilege to refuse to answer relevant and material questions asked during a grand jury investigation instituted and conducted in good faith. The plurality opinion stated that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” Id. at 2657. However, the plurality opinion also recognized that “news gathering is not without its First Amendment protections” (id. at 2670); only where there is a substantial relation between the information sought and a subject of overriding and compelling state interests must the First Amendment give way to the duty of any citizen to give testimony relevant to an investigation into the commission of a crime. In a separate concurring opinion needed to make a majority, Mr. Justice Powell emphasized the limited nature of the court’s holding stating that: “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” Id. at 2671 (Powell, J. concurring). (footnote omitted)

Following Branzburg, almost all federal courts of appeals have recognized a qualified privilege rooted in the First Amendment against compelled disclosure of anonymous sources in civil libel cases. However, this qualified privilege which they have recognized does not outweigh the states’ interest in protecting the reputations of its citizens, Within eight years of the Branzburg decision, four federal courts of appeals — Cervantes v. Time Inc., 464 F.2d 986 (8th Cir. 1972); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Miller v. Transamerican Press Inc., 621 F.2d 721 (5th Cir. 1980), supplemented by 628 F.2d 932 (5th Cir. 1980), and Bruno & Stillman Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980)— had considered a plaintiff’s request to compel a publisher to reveal sources in a libel action against this publisher. In Cervantes, the court held that the First Amendment barred compulsory disclosure unless “there is a concrete demonstration that the identity of the defense news sources will lead to persuasive evidence on the issue of malice.” 464 F.2d at 994. In Carey and Miller, the courts adopted the constitutional balance which the Second Circuit used in Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), a civil defamation action involving a court order compelling the defendant reporter to disclose her sources. This balance, according to the Carey court, “essentially is that the court will look to the facts on a case-by-case basis in the course of weighing the need for the testimony in question against the claims of the newsman that the public’s right to know is impaired.” 492 F.2d at 636. (footnote omitted) In weighing the respective interests of the parties, the critical factors are whether the information sought appears to go to the heart of the libel action, whether the identity of the source is critical to the plaintiff’s claim, and whether the claim appears to be substantial.

Where the claim has substance and the identity of the source is critical, the Carey and Miller courts held that the First Amendment interests must give way to the paramount public interest in the fair administration of justice. In Bruno & Stillman Inc., the court held that First Amendment considerations required that Rule 26 of the Federal Rules of Civil Procedure (general provisions governing discovery) be construed to bar discovery of confidential sources in the absence of a finding that the plaintiff’s need for the information outweighs the defendant’s need to preserve confidentiality.

During this same period, three other federal courts of appeals considered requests of a party to a civil action to compel a nonparty witness to disclose confidential sources. In Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972), the court upheld the lower court’s denial of the motion to compel disclosure because there were other available sources of information that might have disclosed the identity of the confidential source which the moving party had not exhausted. Also, the true identity of the confidential source did not go to the heart of the plaintiffs’ case. According to the court, the balance between the private interest in compelling disclosure and the public interest in nondisclosure of confidential sources, which was properly struck in Garland, bars disclosure in the absence of a “compelling” or “paramount” state interest. Consequently, it shall not be required where the moving party has not demonstrated that the identity of the confidential source “is necessary, much less critical, to the maintenance of their civil rights action.” Id. at 784.

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), the court held that First Amendment considerations outweigh the need for disclosure in the absence of a paramount interest favoring disclosure. The court discussed the criteria that it found that the Garland case had adopted: whether the party seeking information independently attempted to obtain this information elsewhere and has been unsuccessful; whether this information goes to the heart of the matter; whether the information is of certain relevance; and the type of controversy. It noted that the Baker case was more protective of the First Amendment because information of questionable relevance weighed in favor of protection. The court also discussed Cervantes and Carey before remanding to the lower court to develop a record so that these various factors announced in these cases could be weighed. Id. at 438.

In Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979), the court held that the standard of need required before the qualified privilege rooted in the First Amendment may be set aside is a strong showing by those seeking to elicit the information that there is no other source for the information requested and that the material sought will provide a source of critical information going to the heart of the claim.

Later cases follow the legal principles enunciated in these opinions. In 1993, in Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), the Court of Appeals for the Ninth Circuit summarized the law as follows:

“However, when facts acquired by a journalist in the course of gathering the news become the target of discovery, a qualified privilege against compelled disclosure comes into play. In Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert. denied, 421 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976), we interpreted Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), as establishing such a qualified privilege for journalists. Eight of the other nine circuits that have decided the question read Branzburg the same way.

“Rooted in the First Amendment, the privilege is a recognition that society’s interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest ‘of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.’

“We held in Farr that the journalist’s privilege recognized in Branzburg was a ‘partial First Amendment shield’ that protects journalists against compelled disclosure in all judicial proceedings, civil and criminal alike. Farr, 522 F.2d at 467. Nevertheless, we stressed that the privilege is qualified, not absolute, and held that the process of deciding whether the privilege is overcome requires that ‘the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts, and a balance struck to determine where lies the paramount interest.’ ” Id. at 468; Shoen, 5 F.3d at 1292-93. (footnote and citations omitted)

Within the past six months in Ashcraft v. Conoco Inc., 218 F.3d 282 (4th Cir. 2000), the Court of Appeals for the Fourth Circuit described the law as follows:

“Nevertheless, the reporter’s privilege recognized by the Supreme Court in Pell [v. Procuier, 94 S.Ct. 2800 (1974)] and Branzburg is not absolute and will be overcome whenever society’s need for the confidential information in question outweighs the intrusion on the reporter’s First Amendment interests. See e.g., Branzburg, 408 U.S. at 690, 708, 92 S.Ct. 2646 (holding that reporter, like ordinary citizen, must respond to grand jury subpoenas and answer questions related to criminal conduct he personally observed and wrote about, regardless of any promises of confidentiality he gave to subjects of stories). On a motion to compel disclosure of confidential news sources, this balancing of the reporter’s interests and society’s interests is committed to the sound discretion of the district court. See Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 1335 (4th Cir. 1993) (citing LaRouche, [infra,] 780 F.2d at 1139); see also, Branzburg, 408 U.S. at 710, 92 S.Ct. 2646 (reporter’s claim of privilege should be judged on case-by-case basis) (Powell, J. concurring).

“In order to guide the district court in balancing these interests, in LaRouche v. National Broadcasting Company, 780 F.2d 1134 (4th Cir. 1986), we adopted the following three-part test: ‘(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.’ ” Id. at 1139 (citing Miller v. Transamerican Press Inc., 621 F.2d 721, 726 (5th Cir. 1980)); Ashcraft, 218 F.3d at 287.

Pennsylvania case law follows the same standard. See Davis v. Glanton, 705 A.2d 879 (Pa. Super. 1997), where the court stated:

“Inquirer also asserts that the trial court’s order is violative of the qualified First Amendment privilege protecting members of the news media from divulging their sources, including unpublished information. See United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980); Riley v. City of Chester, 612 F.2d 708, 714-15 (3d Cir. 1979). This privilege, designed to protect freedom of the press by insuring a free flow of information to reporters, will be overcome only where a demonstrated, specific need for evidence presents a paramount interest to which the privilege must yield. Riley v. City of Chester, supra at 715-16 (citing United States v. Nixon, 418 U.S. 683, 713, 94 S.Ct. 3090, 3110, 41 L.Ed.2d 1039 (1974)). The determination of whether the privilege has been overcome must be made on a case-by-case basis, balancing the rights of reporters under the First Amendment against the interests of those seeking the information the reporters possess. Id; McMenamin v. Tartaglione, 139 Pa. Commw. 269, 287, 590 A.2d 802, 811 (1991). This balancing of interests will tip in favor of disclosure of information where: (1) the information sought is material, relevant and necessary; (2) there is a strong showing that it cannot be obtained by alternative means, and (3) the information is crucial to the plaintiff’s case. Riley v. City of Chester, supra at 716-17; McMenamin v. Tartaglione, supra.” Davis, 705 A.2d at 885. (emphasis added)

Under the balancing of rights using the three factors described above, plaintiff may obtain the information which she seeks (the identity of the publisher) because this information (1) is material, relevant, and necessary, (2) it cannot be obtained by alternative means, and (3) it is crucial to plaintiff’s case. Defendants’ contention that state libel laws give way to the First Amendment’s protections afforded anonymous speech cannot be reconciled with the use of this three-factor standard that gives priority to the states’ interests in making its libel laws available to public figures.

III.B.

Defendants have proposed that anonymity be protected unless plaintiff can show out-of-pocket losses or medical treatment in order to lessen the likelihood that libel actions will be instituted solely for the purpose of discovering the identity of an anonymous critic. However, as the Pennsylvania Superior Court recognized in Tucker v. Philadelphia Daily News, supra, 757 A.2d at 944, citing Agriss v. Roadway Express Inc., 334 Pa. Super. 295, 316, 483 A.2d 456, 467 (1984), quoting from Gertz v. Robert Welch Inc., supra, 94 S.Ct. 2997, the more customary types of actual injury inflicted by defamatory falsehoods include impairment of reputation and standing in the community, personal humiliation and mental anguish and suffering. Traditionally, the purpose of civil defamation actions has been to discourage persons from making false statements for the purpose of harming another’s reputation. To accomplish this purpose, the law requires only a showing of general damages. Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 634 A.2d 237 (1993). Thus, a requirement of proof of out-of-pocket losses would alter state defamation law in a way that would undermine its essential purpose.

III.C.

There is a final argument that has not been directly raised but appears to underlie other arguments. On a scale of seriousness of one to 100 (with one being a false statement that plaintiff violated the law by failing to report a $32 reimbursement from the Mahoning County Bar Association for driving to Youngstown, Ohio, to address its annual meeting and with 100 being a false statement that Globe Consulting Inc. hired plaintiff’s husband as a $500,000 per year consultant shortly after plaintiff voted to reverse a $27 million verdict against Globe Consulting Inc.), it is suggested that the statement in this lawsuit is not even a five. While an argument that anonymity should not be lost in order to permit a plaintiff to pursue a slightly more than de minimis defamation lawsuit has certain appeal, the applicability of the First Amendment cannot turn on how a judge evaluates the significance of a statement that meets state law and First Amendment requirements for pursuing a defamation action. At oral argument, defendants recognized that the arguments they were making for anonymity would need to apply regardless of whether the alleged defamatory statement involves an accusation that a judge has violated the Judicial Ethics Code by contacting the governor about filling a judicial vacancy or by deciding a case in favor of a party shortly before the party hired the judge’s husband as a $500,000 per year consultant.

IV.

While there is not any particularly satisfactory middle ground that can protect the publisher’s anonymity unless and until the plaintiff establishes that (1) the statement was false, (2) malice, and (3) damages, it is possible to minimize the harm to defendants from retaliation by third parties through the use of a protective order which provides that until further order of court discovery responses involving the identity of the publisher will be made available only to the parties and their counsel and will not be disclosed to any third party. I recognize that this protection goes only so far. I do not know whether the case can be tried without the pubhsher’s identity being revealed to persons other than the parties and their counsel. Also, any ruling that does not fully protect the anonymity of the anonymous Internet speaker may deter anonymous Internet speech.

CONCLUSION

Although there may be some dispute as to the degree of the impact, it is clear that the availability to public officials of state libel causes of action will have an impact on anonymous Internet criticism of public officials made in good faith. The impact will be present unless the First Amendment, either directly (by providing absolute immunity) or indirectly (by making it impossible to learn the identity of the publisher) bars the states from allowing public officials to bring libel actions against anonymous Internet publishers. The case law’s preservation of civil libel actions for criticism of public officials in the performance of their public duties precludes the interpretation of the First Amendment that defendants propose.

For these reasons I enter the following order of court:

ORDER

On November 15, 2000, it is ordered that:

(1) except as provided for in paragraph (2), defendants’ motion for a protective order is denied; and

(2) discovery related to the identity of the defendants shall be subject to a confidentiality order, which the parties shall prepare, consistent with the opinion which accompanies this court order.

      . It is likely that the identity of the publisher can be learned through discovery directed to America Online Inc.

      . A plaintiff should not be able to use the rules of discovery to obtain the identity of an anonymous publisher simply by filing a complaint that may, on its face, be without merit. See Pa.R.C.P. 4011(b) which provides that no discovery shall be permitted that would cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

      . In defamation claims against media defendants based on publicly disseminated statements, a public official or public figure cannot recover without establishing by a preponderance of the evidence that the statements were false. Milkovich v. Lorain Journal Co., 110 S.Ct. 2695 (1990); Philadelphia Newspaper Inc. v. Hepps, 106 S.Ct. 1558 (1986).

      . It is unclear that the bifurcation that defendants proposed would significantly alter the impact that libel litigation would have on Internet speech. Any bifurcation helps only the defendant who has the money to offer a defense and the John Doe defendant typically lacks the resources necessary to defend against a defamation action. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 861 (2000).

      . Also see Buckley v. American Constitutional Law Foundation Inc., 119 S.Ct. 636 (1999), where the court struck down a requirement within a state law that persons circulating petitions for ballot initiatives include the circulator’s name and address, but affirmed another provision within the law requiring the filing of affidavits with the names of the proponents and paid circulators and the amount of money proponents paid to each circulator for gathering support for the initiatives.

      . This argument ignores the costs of providing a defense and the error rate in libel litigation. See Anthony Lewis, New York Times v. Sullivan Reconsidered: Time to Return to “The Central Meaning of the First Amendment, ” 83 Colum. L. Rev. 602, 614 (1983):
      “Any sensible publisher of comment on official conduct must worry about the legal process and its expense. If there is a libel action, he knows there will be a massive discovery process. Apart from cost, his writers and editors may be tied up for months or years. Their editorial decisions will be re-examined, their thoughts probed. A good system of editorial checking may actually prove damaging, because internal criticism of an article or broadcast may become evidence of fault in publishing. The Sullivan rule remains a very useful defense before judges. But if the defendant cannot persuade a judge to dispose of the case on summary judgment, the rule may not make a difference to jurors. The jury will be free to award compensatory damages unrelated to actual financial loss, and punitive damages on any theory that strikes its fancy.”

      . Obviously, this case law provides the same breathing room to the Internet publisher that it provides to the press. Thus, plaintiff in this case cannot prevail without showing that the statements were false and maliciously made.

      . In Pennsylvania, a public figure is entitled to a jury trial upon a showing that the challenged statement can be reasonably construed as defamatory and that there is actual harm inflicted by the defamatory falsehood. Actual harm may include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. The issue of whether actual malice has been established and whether the publication caused more than mere annoyance or embarrassment will seldom be resolved at the preliminary stages of the litigation. See Tucker v. Philadelphia Daily News, 757 A.2d 938 (Pa. Super. 2000).

      . But see Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, supra, 49 Duke LJ. at 887 (footnotes omitted):
      “Defamation law has the potential to curb the excesses of Internet discourse and to make Internet discourse not just more civil but more rational as well. It is important to note, moreover, that defamation law can serve these functions regardless of whether plaintiffs actually pursue their lawsuits all the way to judgment. Consider again the case of HealthSouth [Corp.] v. Krum[, no. 98-2812, (Pa.C.P. Centre Cty. filed Oct. 28, 1998)]. The result of that case sent a powerful message to other users of the Yahoo! financial message boards on which Krum posted his retraction. That message- — that users should not rely on anonymity to shield them from being sued if they post abusive and untrue messages — is one that has positive implications for Internet discourse. The quality of speech is improved when speakers realize that their speech has consequences.”

      . According to Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, supra, 49 Duke L.J. at 861, any possibility that the identity of the speaker can be discovered will discourage legitimate speech because most Internet speakers will not have enough money even to defend against a libel action.

      . This contention that anonymous Internet criticism of public figures does not have the same impact as mass media criticism of public figures is disputed. According to Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, supra, 49 Duke L.J. at 863 (footnote omitted), Internet communications “are communicated through a meditan more persuasive than print, and for this reason they have tremendous power to harm reputation.” While it might be tempting to characterize John Doe litigation as Internet SLAPPs (Strategic Lawsuits Against Public Participation), it is the position of Professor Lidsky that “this characterization ignores the power that the Internet gives irresponsible speakers to damage the reputations of their targets and underestimates the potential benefits that defamation law may bring to Internet discourse.” Id. at 865.

      . Defendants do not present any arguments based on the Pennsylvania Constitution. Under Article I, Section 7 of the Pennsylvania Constitution, there may be no conviction for the publication of papers relating to the official conduct of officers or persons in public capacity or to any other matters proper for public investigation where it is established that such publication was not maliciously or negligently made. There does not appear to be any case law construing the Pennsylvania Constitution that would protect a speaker’s anonymity with respect to an allegedly defamatory statement concerning a public official.

        Pennsylvania has a shield law (42 Pa.C.S. §5942(a)) which provides that no person employed by a newspaper of general circulation shall be required to disclose the source of information in any legal proceeding, trial, or investigation before any government unit. However, there is no legislation providing any protection for Internet publications.

      . In a lawsuit against a national media defendant, it is possible for the plaintiff to recover damages without disclosure of the source. However, in a lawsuit against an anonymous Internet publisher, it is not possible for the plaintiff to recover damages without the disclosure of the identity of the defendant.

      . In Star Editorial Inc. v. United States District Court for the Central District of California, 7 F.3d 856 (9th Cir. 1993), the court of appeals, in discussing the importance of protecting confidentiality, referred to the district court’s recognition of “the importance of protecting confidentiality to prevent the risk of job loss to the informants and tailored its order to protect the sources by restricting disclosure to counsel and only for the purposes of this litigation.” Id. at 861. Also see Bruno & Stillman Inc. v. Globe Newspaper Company, 633 F.2d 583, 598 (1st Cir. 1980) (“[ajnother recourse might be a deposition with limited attendance and with dissemination proscribed to others than counsel”).

      . Identities will be revealed if plaintiff prevails because the constitution does not protect speech that has been found to be defamatory.


source: Caselaw Access Project

author: SHEPPARD, Jr., J.,

license: Public Domain

text:
    CGU Insurance Co. v. Pinkerton Computer Consultants Inc.

      C.P. of Philadelphia County,
    June Term 2000,
    no. 2178.

      Nicholas Poduslenko, for plaintiff.

      Lee A. Rosengard, for defendant.
    August 31, 2000
   SHEPPARD, Jr., J.,

Plaintiff-petitioner, CGU Insurance Company, filed a petition to stay the arbitration requested by defendant-respondent, Pinkerton Computer Consultants Inc. Pinkerton filed an answer in opposition. For the reasons set forth this court denies that petition.

FACTUAL AND PROCEDURAL HISTORY

On January 2,1996, CGU, previously known as General Accident Insurance Company of America, entered into a system maintenance services agreement with Pinkerton. See exhibit “A” attached to petition. Pursuant to the agreement, Pinkerton was to provide certain engineering, installation and software maintenance services, as well as technical and emergency support for CGU’s computer system. See id.

The agreement had a three year term commencing April 1,1996 (after the initial transition period) and ending March 31, 1999, the initial term. See id. at ¶8.1. CGU, alone, had the option of renewing the agreement for an additional two year term by giving Pinkerton written notice of renewal at least 180 days prior to the end of the initial term. Id. (emphasis added) The agreement also included the following clauses pertaining to termination:

“8.3 Grounds For Termination . ..

“(B) Convenience. GA may terminate this agreement for any reason whatsoever upon 180 days prior written notice to Pinkerton. Upon such notice, Pinkerton shall invoice GA for a sum equal to $60,000 per month multiplied by the remaining number of months in this agreement, the product then being discounted to present value with an interest rate based on the prime rate as obtained from the Wall Street Journal or other financial publication as of the date of the GA notice of termination. Upon such early termination, Pinkerton and GA shall proceed in accordance with section 8.4 of this agreement....

“8.4 Procedures Upon Expiration or Termination

“If this agreement expires or is terminated, then GA and Pinkerton shall proceed in accordance with this section. GA either may immediately cease using the Pinkerton services, or in GA’s sole discretion, GA may proceed in accordance with the provisions of section 8.5 of this agreement. GA shall give Pinkerton express written notice of the election that GA chooses.

“8.5 Transition Out Period

“If GA elects to proceed in accordance with this section, then Pinkerton shall continue to provide the Pinkerton services and charge the fees set forth in section 4.2 for up to three months after the termination date or expiration date, as the case may be. During the transition out period, GA may terminate the Pinkerton services upon 30 days notice.” Id. at ¶¶8.4-8.5. (emphasis added)

“In addition, the agreement contained an arbitration clause which provides:

“6.2 Binding Arbitration

“If Pinkerton and GA are unable to resolve a dispute, in accordance with section 6.1, either GA or Pinkerton may invoke by written notice to the other (an ‘arbitration notice’) the provisions of this section.

“(A) All disputes which may arise between GA and Pinkerton will be finally settled by binding arbitration held according to the commercial arbitration rules of the American Arbitration Association, to which GA and Pinkerton hereby agree.” Id. at ¶6.2. (emphasis added)

The parties agreed that, in the event of a dispute, Pinkerton would continue to provide its services, for all instances not related to billing, for a period not to exceed 90 days. Id. at ¶6.3. The agreement further provides that it “cannot be modified except by a writing executed by both Pinkerton and GA.” Id. at ¶9.7.

CGU allegedly elected not to renew the agreement prior to the expiration of its initial term, and it did not provide Pinkerton with a written notice of renewal. Thus, CGU asserts that the agreement had expired on March 31, 1999. Petition at ¶¶4-5. CGU also contends that the parties attempted to negotiate an entirely new agreement with a start date of April 1, 1999 to expire March 31, 2000, but that these negotiations were unsuccessful. Id. at ¶6; Pet. memorandum of law at 5. Further, CGU contends that upon the expiration of the agreement, Pinkerton continued to furnish services to CGU on a month-to-month basis. Then, on March 13, 2000, CGU sent Pinkerton a termination letter advising Pinkerton that, as of March 27, 2000, it would be substituting for Pinkerton’s services with those of Keane Inc., and that it would honor its invoices with Pinkerton up until March 24, 2000. Exhibit “B,” attached to petition.

On March 21, 2000, Pinkerton responded objecting to the termination letter, stating “[although the agreement was not renewed in writing, we have all been operating under the agreement as if it had been, effectively a de facto renewal.” Exhibit “C,” attached to petition. This letter also advised CGU that Pinkerton may pursue legal action for breach of contract if CGU continues to demand that Pinkerton terminate on March 24, 2000. Id. Pinkerton maintains that six months prior to the expiration of the initial term, the parties orally agreed to extend the agreement for an additional two years for a period ending March 31, 2001. Resp. memorandum in opposition at 2. See also, exhibit “D,” attached to petition, at ¶9. Pinkerton also asserts that it sent CGU a letter dated October 21,1998, constituting a renewal of the agreement, which materially changed only the monthly rate payable by CGU to Pinkerton. The remaining terms remained unchanged. Id. at ¶10.

On May 31,2000, Pinkerton filed a statement of claim with the American Arbitration Association, asserting that CGU wrongfully terminated Pinkerton in breach of the agreement and seeking damages. See id. On June 19, 2000, CGU filed the instant petition to stay arbitration. On July 19, 2000, Pinkerton filed its answer and accompanying memorandum of law in opposition. On July 21, 2000, CGU filed a reply.

DISCUSSION

This court may stay arbitration proceedings on a showing that there is no agreement to arbitrate. 42 Pa.C.S. §7304(b). In Pennsylvania, when one contracting party seeks to prevent another from proceeding with arbitration, judicial inquiry is limited to determining: (1) whether a valid arbitration agreement exists between the parties; and, if so (2) whether the dispute involved is within the scope of the arbitration provision. Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 186 (Pa. Super. 1999). See also, Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975); Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 283, 687 A.2d 1167, 1171 (1997); PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 375, 632 A.2d 903, 905 (1993).

Moreover, Pennsylvania law advocates strict construction of arbitration agreements and dictates that any doubts or ambiguity as to arbitrability should be resolved in favor of arbitration. Midomo, 739 A.2d at 190-91; Smith, 455 Pa. Super. at 284, 687 A.2d at 1171; PBS Coal, 429 Pa. Super, at 376, 632 A.2d at 905. As noted by our Supreme Court, “an order enjoining arbitration of a particular grievance should not be granted unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.” Lincoln University System of Higher Education v. Lincoln University Chapter of the Association of University Professors, 467 Pa. 112, 123, 354 A.2d 576, 581-82 (1976). See also, Midomo, 739 A.2d at 190 (quoting Emlenton Area Municipal Authority v. Miles, 378 Pa. Super. 303, 308, 548 A.2d 623, 625 (1988)).

Here, the underlying issue is whether the agreement expired on March 31,1999 after its initial term, thereby extinguishing the arbitration and termination clauses, or whether the parties orally renewed the agreement and included the same terms, notwithstanding the prohibition against oral modification.

In support of its petition, CGU contends that no valid agreement to arbitrate exists in that the agreement had expired in March of 1999. Pet. memorandum of law at 4-7. In addition, CGU argues that the breach of contract allegations for wrongful termination fall outside the scope of the arbitration provisions of the agreement since these provisions were only effective prior to the expiration of the agreement. Id. at 4-7. In contrast, Pinkerton maintains that the agreement was renewed for an additional two years under the same terms which included the arbitration clause, and that the arbitration clause would cover the dispute over the agreement’s termination. Resp. memorandum of law at 4-6. Pinkerton also contends that the determination of whether the agreement expired or not goes to the merits of its claim, and, therefore must be decided by arbitration and not by the court. Id. at 7.

Initially, this court submits that it should not make a determination whether the agreement between CGU and Pinkerton expired after its initial term, or whether the parties orally and effectively renewed the agreement. To do so would decide the entire controversy, would be premature, and is beyond the scope of judicial inquiry necessary to decide the present petition.

As stated in 42 Pa.C.S. §7304(e): “an application to stay arbitration [shall not] be granted, by the court on the ground that the controversy lacks merit or bona fides or on the ground that no fault or basis for the controversy sought to be arbitrated has been shown.”

While section 7304(e) does not explicitly preclude this court from examining the merits of a controversy, cases have consistently held that the interpretation and the applicability of an arbitration agreement is initially an issue for the arbitrators, and not for the court to determine. Muhlenberg Township School District Authority v. Pennsylvania Fortunato Construction Co., 460 Pa. 260, 265, 333 A.2d 184, 187 (1975) (holding that arbitrator, not the court, must decide the question of whether demand for arbitration is timely since it involves the interpretation of the agreement); Santiago v. State Farm Insurance Co., 453 Pa. Super. 343, 348, 683 A.2d 1216, 1219 (1996) (holding that it was reversible error to make factual findings and interpret ambiguous language in determining the proper forum for arbitration where an agreement to arbitrate apparently existed); CampbellEllsworth Inc. v. Holy Trinity Serbian Orthodox Church-School Congregation, 233 Pa. Super. 126, 133, 336 A.2d 346, 349 (1975) (whether contract provisions are applicable is for the arbitrators, not the courts, to decide).

It is undisputed that the agreement included an arbitration clause, which provided in pertinent part that: [a]ll disputes which may arise between [CGU] and Pinkerton will be finally settled by binding arbitration held according to the Commercial Arbitration Rules of the American Arbitration Association, to which [CGU] and Pinkerton hereby agree.” Exhibit “A,” attached to petition at ^5.2(A). (emphasis added)

Deciding whether the arbitration clause survived the termination of the agreement involves a question of the scope of the provision, rather than its continuing existence. This court need not now decide when the termination took place. Thus, without ruling on the merits of the entire controversy, this court holds that the parties did have an agreement to arbitrate for purposes of the present petition. The court must now decide whether the arbitration clause would cover the present dispute.

Contrary to CGU’s position, the arbitration clause contains broad language covering “all disputes which may arise between” the parties. Courts, which have ordered arbitration after the termination of an agreement, have examined similar broad arbitration language, that is: “[a] 11 claims, disputes and other matters in question [arising out of,] or relating to, this contract [or breach thereof]... shall be decided by arbitration .... Shamokin Area School Authority v. Farfield Co., 308 Pa. Super. 271, 275, 277-78, 454 A.2d 126, 127, 129 (1982); Chester City School Authority v. Aberthaw Construction Co., 460 Pa. 343, 351, 354, 333 A.2d 758, 762, 764 (1975). In Chester City, the Pennsylvania Supreme Court held that the contractor’s right to resort to arbitration could not be extinguished by the school authority’s unilateral repudiation or termination of the agreement. Id. at 354, 333 A.2d at 764. In Shamokin, the court held that the obligation to arbitrate disputes arising out of the construction contract did not end with the completion of the work despite the work-delay clause. 308 Pa. Super, at 278, 454 A.2d at 129. Likewise, in Waddell v. Shriber, 465 Pa. 20, 31-32, 348 A.2d 96, 101-102 (1975), the dispute involved the means by which a partnership relationship should be terminated where the partners were all members of the New York Stock Exchange and had subscribed to its rules, including the obligation to submit disputes to arbitration. The court stayed proceedings pending the arbitration. Id. at 33, 348 A.2d at 103.

CGU maintains that the arbitration clause was intended to be effective only prior to the termination or expiration of the agreement, as evidenced by the “work-delay” clause of paragraph 6.3 of the agreement, and the requirement that the arbitration hearing be held within 90 days of receipt of the arbitration notice under paragraph 6.2(D). Pet. memorandum of law at 6-7. In support of its position, CGU relies upon Westmoreland Hospital Association v. Westmoreland Construction Co., 423 Pa. 255, 223 A.2d 681(1966); and Emmaus Municipal Authority v. Eltz, 416 Pa. 123, 204 A.2d 926 (1964). Those cases are distinguishable from the present case because the arbitration clause in each case explicitly stated that “no demand for arbitration shall be made after the date of final payment.” Westmoreland, 423 Pa. at 258, 223 A.2d at 682; Emmaus, 416 Pa. at 126, 204 A.2d at 927. See also, Chester City, 460 Pa. at 353-54, 333 A.2d at 763 (distinguishing Emmaus where arbitration clause did not include comparable provision).

The case of Allstate Insurance Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972) is analogous to the present dispute and instructive. In that case, the insurer refused to submit a claim for arbitration by an uninsured motorist despite an insurance policy which included an arbitration provision. 449 Pa. at 363, 296 A.2d at 739. The insurer argued that the policy had expired and was not in effect on the date of the accident. Id. Rejecting this argument, the court noted that “there is no question whether Allstate is a party to an arbitration agreement.” Id. at 366, 296 A.2d at 740. The court held that all questions arising under uninsured motorist coverage, including whether the arbitration agreement was in force on the date of the accident, must be determined by the arbitration. Id.

Here, the arbitration provisions did not include the explicit language used in Westmoreland or Emmaus which limited the applicability of the arbitration clause, though it did provide that Pinkerton would continue to perform its services in the event of a dispute for a period not to exceed 90 days. Exhibit “A,” attached to petition at ¶6.3. Similar to Chester City, this court cannot now conclude that the arbitration clause was clearly intended to apply only during the life of the contract. Since there is ambiguity as to the arbitrability issue and since public policy favors any doubt to be resolved in favor of arbitration, this court submits that it should deny CGU’s petition to stay arbitration.

CONCLUSION

For these reasons, this court denies CGU’s petition to stay arbitration. A contemporaneous order to this effect is being entered.

ORDER

And now, August 31, 2000, upon consideration of plaintiff’s petition to stay arbitration and defendant’s opposition to it, the respective memoranda, all other matters of record, and in accordance with the memorandum opinion being filed contemporaneously with this order, it is ordered that the petition to stay arbitration is denied.

      . All references to “General Accident Insurance Company of America” or “GA” in this opinion or the system maintenance services agreement shall be understood as CGU, as GA’s successor-in-interest.

        . The letter states in pertinent part: “As per your request enclosed are copies of the general agreement for system maintenance services between Pinkerton Computer Consultants Inc. and CGU Insurance Co. It has been our pleasure to serve CGU and its predecessor General Accident for the last three years on this agreement and we look forward to continue our relationship with CGU on this maintenance service contract.... The only changes we have made to the existing contract is the labor rate category.” See exhibit “D,” at ¶10.
      No other correspondence was attached referring to a renewal form, other than a copy of the original agreement. See id.


author: CHESLOCK, J.,

text:
    Fechhelm v. Nazareth Mutual Insurance Co.
    C.P. of Monroe County,
    no. 6874 Civil 1999.

      Lori J. Cerato, for plaintiff.

      Bernard, M. Billick, for defendant.
    November 16, 2000
   CHESLOCK, J.,

In September 1998, plaintiff, Dolores Fechhelm, learned that her property, which is located at 1304 Selig Road, Locust Lake Village, Monroe County, sustained severe and extensive water damage as the result of frozen pipes. Shortly thereafter, plaintiff filed a claim for coverage pursuant to her homeowners’ insurance policy with the defendant, Nazareth Mutual Insurance Company. In response to the claim filed by the plaintiff, the defendant hired Merrill Associates Property Loss Adjusters to evaluate the damage to plaintiff’s property and its cause. Following this investigation, the defendant finally denied plaintiff’s claim approximately 10 months later in June 1999.

Following defendant’s denial of plaintiff’s claim pursuant to her homeowners’ policy, plaintiff commenced a bad faith action with this court on September 14,1999. As permitted by section 8371, plaintiff is also seeking punitive damages. Consequently, plaintiff brings this current motion to compel discovery in an effort to obtain information regarding defendant’s wealth to support her claim for punitive damages. Specifically, the plaintiff seeks to propound and serve several interrogatories upon the defendant to ascertain its wealth and/or financial status. This court heard oral arguments on this matter on November 6, 2000, and we are now ready to dispose of plaintiff’s motion.

Typically, the Pennsylvania Rules of Civil Procedure permit discovery that is broad and liberal. In particular, Rule 4003.1(a)states:

“Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any party, including the existence, description, nature, content, custody, condition and location of any books, documents or other tangible things and the identity and location of person having knowledge of and discoverable matter.” Pa.R.C.P. 4003.1(a).

Additionally, Rule 4003.3 provides, in pertinent part:

“[A] party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including by his or her attorney, consultant, surety, indemnitor, insurer or agent.” Pa.R.C.P. 4003.1(a).

In further evaluating the scope of permissible discovery, we note that the standard for relevant interrogatories is greater than the standard applied at trial to determine the admissibility of evidence. See e.g., Rosen v. Philadelphia National Bank, 69 D.&C.2d 238, 239 (C.P. Philadelphia Cty. 1975). Thus, as the above language indicates, discovery under the Rules is generously allowed and generally, limitations and restrictions upon discovery are narrowly construed. See e.g., Schwab v. Milks, 8 D.&C.4th 557, 558 (C.P. Lackawanna Cty. 1990).

“In supervising discovery, [this court possesses] broad discretion to take such action as it deems appropriate to insure prompt and adequate discovery.” Iron Workers Saving & Loan Association v. IWS Inc., 424 Pa. Super. 255, 274, 622 A.2d 367, 377 (1993). (emphasis in original) Accordingly, this court controls the discovery and dissemination of information regarding a defendant’s wealth and/or financial records with regard to an opposing party’s claim for punitive damages. See Pa.R.C.P. 4003.7. See also, Pa.R.C.P. 212.1 (Explanatory comment of 1997). Moreover, when faced with a request for privileged financial records, “the manner and extent of the disclosure of the contents of such records still remains under the discretionary control of the trial judge.” Id. Thus, this court is at liberty to determine which financial records the plaintiff may obtain through discovery.

The purpose of punitive damages is to punish and prevent a tort-feasor’s outrageous conduct. It is well settled that in considering punitive damages, the trier of fact must not only consider the nature of the tort-feasor’s act and his mindset but the wealth of the defendant as well. Sprague v. Walter, 441 Pa. Super. 1, 72, 656 A.2d 890, 920 (1995). It is for this reason that the wealth of a defendant is relevant in deciding whether to impose punitive damages in a given suit. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 103, 555 A.2d 800, 803 (1989). In evaluating a defendant’s wealth when punitive damages are at issue, we conclude that the defendant’s net worth is the most valid measure of a person’s wealth and/or finances. Sprague, 441 Pa. at 72, 656 A.2d at 920. (internal citations omitted) An individual’s net worth is “the amount by which assets exceed liabilities or the difference between total assets and liabilities of individual corporation, etc.” Id. (citing Black’s Law Dictionary 1041 (6th ed. 1990)). Thus, in our sound discretion, we conclude that the plaintiff may only obtain discovery of defendant’s wealth and financial records to the extent that those questions pertain to the defendant’s net worth.

In conclusion, it has always been the policy of this court to allow the liberal and free exchange of discoverable materials in an effort to expedite litigation and to adhere to the spirit of the discovery rules. However, when a party seeks to obtain inherently private and personal information, this court is obligated to exercise its authority to limit the scope of such discovery to protect this privacy. Therefore, it is with great caution that we grant the plaintiff’s motion in part. After examining the interrogatories propounded by plaintiff and provided plaintiff’s motion, this court, in its sound discretion, shall compel the defendant to answer only interrogatories no. 1 and no. 2 because the remaining interrogatories far exceed a scope of questions intended to ascertain the defendant’s net worth.

Accordingly, we enter the following order:

ORDER

And now, November 16, 2000, the plaintiff’s motion to compel discovery is hereby granted with the following conditions:

(1) In accordance with Rule 4006(a)(2), defendant has 30 days from the date of this order to answer plaintiff’s interrogatories;

(2) In accordance with Rule 4006(a)(2) and the discussion set forth above, defendant must prove full and complete responses to the plaintiff’s interrogatories;

(3) In accordance with Rule 4009.12(a)(2), defendant has 30 days from the date of this order to produce or make available those documents and/or things requested by the plaintiff;

(4) The defendant shall answer only interrogatories no. 1 and no. 2 and produce any relevant documents sought in relation to those inquiries;

(5) The information disclosed and/or produced during such discovery is not to be disseminated or published to individuals or entities not directly involved with the proceedings before this court.

      . Plaintiff used her Locust Lake Village property as a seasonal residence and, at the time the water damage occurred, the property had been unoccupied for approximately one year in that the plaintiff had not occupied the property since September 1997. These dates are significant because the plaintiff’s insurance policy contains an exclusion precluding coverage when the property is vacant or unoccupied. This court, however, is not obligated to determine the scope of coverage or the applicability or this exclusionary provision at this time. Rather, the court’s current function is to rule upon plaintiff’s motion to compel discovery.

      . In denying the plaintiff’s claim, the defendant concluded that the water damage occurred because plaintiff either failed to maintain the property with sufficient heat and/or failed to shut off to the house and drain the pipes, which caused the pipes to freeze and burst. As stated in the preceding footnote, this court is not on a fact-finding mission at this juncture. Accordingly, we will not determine, which party is at fault for the water damage done to plaintiff’s residence or the appropriateness of punitive damages in this bad faith action.

      . See 42 Pa.C.S. §8371 (relating to legal actions involving insurance policies).

      . At the outset, this court notes that an individual’s wealth or financial information can be obtained through discovery only upon an order of this court. Specifically, Pa.R.C.P. 4003.7 states:
      “A party may obtain information concerning the wealth of a defendant in a claim for punitive damages only upon order of court setting forth appropriate restrictions as to the time of the discovery, the scope of the discovery, and the dissemination of the material discovered.” Pa.R.C.P. 4003.7.

      . As stated by the Pennsylvania Supreme Court:
      “In making its determination [as to punitive damages], the jury has the function of weighing the conduct of the tort-feasor against the amount of damages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tort-feasor’s wealth.” Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 103, 555 A.2d 800, 803 (1989).


author: SPICER, P.J.,

text:
    Sullivan v. Cornerstone Counseling Inc.

      C.P. of Adams County,
    no. 00-S-775.

      Anthony Miley, for plaintiff.

      Sharon O’Donnell, for defendants.
    November 7, 2000
   SPICER, P.J.,

On July 28,2000, plaintiff filed a writ of summons against defendants. On August 10,2000, plaintiff, a former client of defendants, requested copies of her treatment records for the purpose of preparing her complaint. Defendants move for a protective order to preclude plaintiff from seeking the discovery. They argue she is not entitled to pre-complaint production of documents and the records are confidential. Argument was scheduled and heard on October 20, 2000.

Defendants have cited Rule 4001(c) of the Pennsylvania Rules of Civil Procedure in support of their argument that plaintiff’s discovery request is not appropriate at this stage of the proceeding. Defendants argue that since “production of documents” is not specifically referenced in the rule, it is not an appropriate method of discovery for the preparation of pleadings. Although plaintiff also refers to Rule 4001(d) we find Rule 4009.11 most instructive. The rule provides:

“Rule 4009.11 Request upon a party for production of documents and things

“(a) The request may be served without leave of court upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party.”

A plaintiff has the burden of filing a complaint which supports her cause of action, even though the facts are known to the defendant. Gross v. United Engineers and Constructors Inc., 224 Pa. Super. 233, 302 A.2d 370 (1973). The proper procedure for a plaintiff to obtain the information necessary for the preparation of an adequate complaint is to commence her action by filing a praecipe for a writ. Id. In the case before us, original process was filed by writ of summons on July 28, 2000 and served upon defendants on August 10, 2000. Plaintiff’s discovery request was served on defendants August 15, 2000.

The remaining issue raised by defendants requires us to consider whether a patient has access to her own confidential drug and alcohol treatment records. Defendants have referred to two federal statutes and one state statute as supporting their motion for protective order and proposition that plaintiff’s records should not be disclosed to her. In response, plaintiff has cited numerous cases involving disclosure of mental health records.

We will first review the federal law concerning confidentiality of alcohol and drug abuse patient records. Statutory authority for confidentiality of alcohol abuse patient records is codified at 42 U.S.C. 290dd-3. It provides that records may be disclosed only with the consent of the patient, or in the absence of consent, only in accordance with specified procedures. The scope of protections are found in 42 CFR, part 2. Absent within the statute, but present in the regulations, is a section entitled “Patient access and restrictions on use.” 42 CFR §2.23. This section provides:

“(a) Patient access not prohibited. These regulations do not prohibit a program from giving a patient access to his or her own records, including the opportunity to inspect and copy any records that the program maintains about the patient. The program is not required to obtain a patient’s written consent or other authorization under these regulations in order to provide such access to the patient.”

Confidentiality of patient records is addressed by the Pennsylvania Legislature in 71 P.S. §1690.108. Like its federal counterpart, the Pennsylvania statute permits disclosure only with the patient’s consent or without consent in emergency situations. In ascertaining legislative intent, courts are to presume that the General Assembly did not intend an unreasonable result. 1 Pa.C.S. § 1922(f). While we understand that sometimes disclosure of a patient’s treatment records to the patient may not be therapeutic, it is unreasonable to deny a patient access to her own information. The purpose of the privilege is to encourage diagnosis and treatment. We believe the right to claim a privilege is a personal one belonging to the individual protected by the statute. A patient should not have to engage in legal proceedings in her quest for copies of her own treatment records.

Accordingly, the attached order is entered.

ORDER

And now, November 7, 2000, defendants’ motion for protective order is denied and they are directed to provide plaintiff with the requested documents.

      . “Rule 4001. Scope. Definitions
      “(c) Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation of trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.”

      . “(d) Subject to the provisions of this chapter, any party may obtain discovery by one or more of the following methods: depositions upon oral examination (Rule 4007.1) or written interrogatories (Rule 4004); written interrogatories to a party (Rule 4005); production of documents and things and entry for inspection and other purposes (Rule 4009); physical and mental examinations (Rule 4010); and requests for admission (Rule 4014).”

      . 42 U.S.C. §§290(ee-3)(f) and (dd-3)(f); 42 C.F.R. §§ 2.3, 2.4.

      . 71 P.S. §1690.108.

      . Defendants have not raised any issues of redaction in their motion or brief. However, during argument, counsel indicated plaintiff could not have unfettered access to records and would also need to show that a complaint could not be prepared without the requested discovery.

      . “P.S. 71 §1690.108. Confidentiality of records
      “(a) A complete medical, social, occupational, and family history shall be obtained as part of the diagnosis, classification and treatment of a patient pursuant to this act. Copies of all pertinent records from other agencies, practitioners, institutions, and medical facilities shall be obtained in order to develop a complete and permanent confidential personal history for purposes of the patient’s treatment.
      “(b) All patient records (including all records relating to any commitment proceeding) prepared or obtained pursuant to this Act, and all information contained therein, shall remain confidential, and may be disclosed only with the patient’s consent and only (i) to medical personnel exclusively for purposes of diagnosis and treatment of the patient or (ii) to government or other officials exclusively for the purpose of obtaining benefits due the patient as a result of his drug or alcohol abuse or drug or alcohol dependence except that in emergency medical situations where the patient’s life is in immediate jeopardy, patient records may be released without the patient’s consent to proper medical authorities solely for the purpose of providing medical treatment to the patient. Disclosure may be made for purposes unrelated to such treatment or benefits only upon an order of a court of common pleas after application showing good cause therefor. In determining whether there is good cause for disclosure, the court shall weigh the need for the information sought to be disclosed against the possible harm of disclosure to the person to whom such information pertains, the physician-patient relationship, and to the treatment services, and may condition disclosure of the information upon any appropriate safeguards. No such records or information may be used to initiate, or substantiate criminal charges against a patient under any circumstances.
      “(c) All patient records and all information contained therein relating to drug or alcohol abuse or drug or alcohol dependence prepared or obtained by a private practitioner, hospital, clinic, drug rehabilitation or drug treatment center shall remain confidential and may be disclosed only with the patient’s consent and only (i) to medical personnel exclusively for purposes of diagnosis and treatment of the patient or (ii) to government or other officials exclusively for the purpose of obtaining benefits due the patient as a result of his drug or alcohol abuse, or drug or alcohol dependence except that in emergency medical situations where the patient’s life is in immediate jeopardy, patient records may be released without the patient’s consent to proper medical authorities solely for the purpose of providing medical treatment to the patient. 1972, April 14, P.L. 221, no. 63, §8.”

      . For further discussion of the privilege see Terrence M. Slaven, Who Holds The Key? Lawyers Access to Drug and Alcohol Abuse Treatment Records, 23 Ariz. B.J. 8 (1988).


author: WALLACH MILLER, J.,

text:
    Ciccone v. Allstate Insurance Co.

      C.P. of Monroe County,
    no. 290 Civil 1998.

      Brett J. Riegel, for plaintiffs.

      Robert G. LaBar, for defendant Allstate Insurance Co.
    November 9, 2000
   WALLACH MILLER, J.,

This matter comes before the court upon plaintiffs’ motion to compel discovery.

Plaintiffs Garry and Cathy Ciccone, husband and wife, reside at 5853 Seven Nations Drive, Tobyhanna, Monroe County, Pennsylvania. Defendants are Allstate Insurance Company and Bradley W. Steckel, an Allstate agent from whom plaintiffs purchased homeowners’ insurance in 1986.

On January 7, 1996, during a winter storm, plaintiffs noticed water leaking into their house from the living room window and water pouring in from the top of the same window frame. They allege the water reached the window because of the failure of the roof and damaged the paint, rug, wall and floor of their home. Plaintiffs reported the loss to their insurance agent, defendant Steckel, on January 8, 1996.

An Allstate representative inspected the damage and checks were issued on January 10, January 16 and January 26, 1996 for storm-related damage. On January 27, 1996, an independent adjuster investigated the roof at the Ciccone home. Defendants allege that this independent adjuster conducted re-inspections after Allstate made payment for repairs. Plaintiffs further allege that this independent adjuster was an Allstate inspector and that he suggested to them that the roof needed repair to avoid future problems. A dispute then arose between the Ciccones and Allstate over the roof damage claim.

On May 11, 1996, plaintiffs received a denial of the roof claim and after an exchange of correspondence between the Ciccones and Allstate, Allstate allegedly issued a final denial of this claim. Plaintiffs allege they then received a cancellation notice from Allstate. This lawsuit alleging bad faith on the part of Allstate was filed January 13, 1998.

Plaintiffs sent interrogatories to Allstate on or about April 27,1999 which were not answered. On August 10, 1999, Allstate sent partial responses to the plaintiffs and specifically objected to certain interrogatories. On August 16,1999, plaintiffs requested full and complete answers to their interrogatories pursuant to Pa.R.C.P. 4009.12(a), and advised that they would pursue a motion to compel if defendants were unresponsive.

Plaintiffs did file a motion to compel and we scheduled oral argument on the matter on October 10, 2000. Prior to oral argument, certain objections made by Allstate were resolved but outstanding are still objections to interrogatories no. 16, 19, 20 and 21.

While we find that plaintiffs’ argument to compel has some merit, we cannot grant their motion in its entirety.

The general scope of allowable discovery is set forth in Pa.R.C.P. 4003.1. In particular, Pa.R.C.P. 4003.1(a) states:

“Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”

However, interrogatories must be specific and to the point. Brownstein v. Philadelphia Transportation Company, 46 D.&C.2d 463 (1969). Interrogatories cannot be so broad that the answering party is unable to readily identify the facts being sought. Bleznak v. Mason, 2 D.&C.3d 515 (1977). Moreover, Pa.R.C.P. 4011(b) provides that no discovery or deposition shall be permitted which would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any other person or party.

Plaintiff has requested responses to 29 interrogatories, many with numerous subparts. Number 16 requests the following:

“For each policy provision (i.e., including policy language, exclusion, endorsement, exception, addenda, rider, etc.) relied upon you in denying coverage, and/or indemnity, and/or reserving your rights in connection with any claim:

“(a) Identify the draft(s) of the language of such provision;

“(b) Identify all documents submitted to or filed with any state of the United States concerning such provision;

“(c) Identify each lawsuit in which you have been a party at any time since January 1, 1996 which involved the construction and/or meaning and/or applicability of such provision by giving the caption, parties, court(s), docket number(s), date commenced and date terminated and disposition.”

We find that these interrogatories are overly broad. Plaintiffs have not limited these interrogatories to a reasonable geographic area, nor to claims more specifically related to that before the court. We find it very unreasonable for plaintiffs to expect defendants to search its files for claims as far away as Alaska, Arizona, Wisconsin, etc. to establish its case. Furthermore, this interrogatory does not even limit the type of claim it requests information about to the type of claim brought by plaintiffs. In essence, these interrogatories could yield information from tens of thousands, if not hundreds of thousands of claims, the vast majority of which would not reveal the relevant facts plaintiffs intend. There are even such vast differences and factors such as climate, weather and constmction standards even between Monroe County and its adjoining neighbors that the interrogatories as stated would yield information well beyond that considered reasonable or even relevant.

We further find these interrogatories to cause undue and unreasonable expense to the defendant if they were to comply. The broad geographic scope of the inquiry spans the 50 states of this country not to mention the claims that may extend internationally. Were the defendants forced to comply with such motion to compel, the time and expense involved would be excessively burdensome and the relevancy questionable.

A trial court is given discretion in determining the appropriate action for discovery violations. Luszczynski v. Bradley, 729 A.2d 83 (Pa. Super. 1999). After careful consideration of the oral argument and the record, we find that more focused interrogatories would facilitate resolution of this matter. Therefore, we will narrow the scope of these interrogatories and require the defendants to only respond and provide the relevant policy information relating to roof coverage claims on homeowners’ insurance policies within Monroe County, Pennsylvania. We do this in light of the fact that even within Monroe County differences in elevation cause different weather patterns which are significant.

Defendants next raise an objection to interrogatory no. 19 that requests information on reserves and decisions made by Allstate on maintaining such reserves for claims. Plaintiffs contend that information about Allstate’s reserves would assist in establishing a pattern of bad faith claims on Allstate’s part by showing whether or not Allstate made reasonable settlement offers.

In Fretz v. Mutual Benefit Insurance Co., 37 D.&C.4th 173 (1998), our colleague, the Honorable R. Stanton Wettick, of the Allegheny County Court of Common Pleas found in a similar case that the amount of an insurance policy’s reserve may not necessarily be an accurate calculation of an equitable settlement, but the procedures or manner in which the reserves were calculated might assist in determining whether the reserve accurately reflects a just settlement claim. Similarly, we cannot conclude at this point that the amount of reserves are relevant in this case. However, we agree that the matter in which the reserves are determined may resolve this issue. Therefore, we modify interrogatory 19 by withdrawing the inquiry into the amount of the reserve but allowing the remainder of the inquiry.

Finally, in interrogatories 20 and 21, plaintiffs request Allstate to provide them with each request made since January 1, 1991 made under a homeowners’ insurance policy which sought coverage for roof damage and with respect to which coverage was denied. They also request information as to whether an action was filed in connection with any such situation and request the caption, court parties, docket numbers, date commenced, termination and disposition. Plaintiff argues that these two interrogatories are relevant to the claim of bad faith against defendants. As we discussed above in interrogatory no. 16, we find that the scope of the inquiry to be extremely broad, thus being burdensome to the defendants. Claims are handled differently based on the weight given various factors from locality to locality. Therefore, we narrow the scope of these interrogatories to cover only Monroe County and compel defendants to answer these interrogatories as amended.

Accordingly, we enter the following order.

ORDER

And now, November 9, 2000, defendant Allstate Insurance Company is directed to respond to the interrogatories propounded by the plaintiff as set forth in the foregoing opinion.